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Opinion of the Court.

the State of Texas at the rate of 8 per cent per annum.

Subsequently, to wit, on April 13, 1891, the statute of the State of Texas fixing the rate of interest that judgments of this kind should bear was amended, so that instead of bearing eight per cent interest judgments thereafter obtained were made to bear only six per cent interest per annum.

Should the judgment in this case bear interest at the rate of eight per cent per annum or at the rate of six per cent per annum ?”

Mr. John F. Dillon, Mr. Winslow S. Pierce and Mr. Henry Hubbard for plaintiff in error.

Mr. W. Hallett Phillips for defendant in error.

MR. CHIEF JUSTICE FULLER, after stating the case, delivered the opinion of the court.

The Circuit Court was correct in awarding execution against the company under the mandate. The judgment was originally against the receiver, to be paid in due course out of the assets in his hands, but the receiver had been discharged and the property restored to the company, and the company had been substituted as the party to the writ of error here, and been made in all respects as liable to the defendant in error as if it had itself brought the writ. The judgment was made final by the order of this court, and was not again subject to be reviewed by the court below in the exercise of its equitable powers or otherwise. If the judgment had been reversed, the company would have recovered its costs against the defendant in error, and the reversal would have been a bar to any liability on the judgment as such. It so happened that it was affirmed, and the company was equally concluded. While the only question is as to the order of this court, we do not think there is any conflict between the mandate and the stipulation, or that the language of the stipulation in any respect limited the liability of the company in case of affirmance. Every point the receiver could have presented was raised on behalf of the company, and disposed of after elabo



rate argument and careful consideration, and the stipulation in that regard was fully complied with. If it had been intended to reserve the present contention, it is enough to say that that intention was not expressed and cannot be inferred, and the matter was determined by our judgment. The Circuit Court properly attempted to exercise no discretion in the premises, but discharged its duty by carrying the mandate into effect according to its terms. This court awarded execution against the company for the costs here, but it was for the Circuit Court to award execution for the amount of the judgment, as it was directed to do, and as it did, and interest was properly included at the rate which obtained under the law of Texas at the time judgment was rendered, the change in the law in that respect operating only prospectively. Inasmuch as its action conformed to the mandate, and there were no proceedings subsequent thereto not settled by the terms of the mandate itself, the case falls within the rule often heretofore laid down and a second writ of error cannot be maintained. Cook v. Burnley, 11 Wall. 672, 677; Stewart v. Salamon, 97 U. S. 361; Humphrey v. Baker, 103 U. S. 736.

For these reasons, the answer to the first question certified must be that, upon the facts stated in the certificate, the Circuit Court of Appeals cannot review by writ of error this judgment of the Circuit Court in execution of the mandate of this court. This dispenses with the necessity of answering the other questions certified.

Ordered accordingly.




No. 232. Submitted April 21, 1893. - Decided May 1, 1893.

The action which § 3011 Rev. Stat., as amended by the act of February 27,

1877, 19 Stat. 240, 247, c. 69, authorizes to be brought to recover back an excess of duties paid, cannot be maintained by a stranger, suing solely in virtue of a purchase of claims from those who did not see fit to prosecute them themselves.

Opinion of the Court.

The case is stated in the opinion.

Mr. Assistant Attorney General Parker for plaintiff in


Mr. Charles Page for defendant in error.

Mr. CHIEF JUSTICE Fuller delivered the opinion of the court.

This was an action brought by R. H. Swayne in the Circuit Court of the United States for the Northern District of California to recover from the defendant, Joseph S. Hager, collector of the port of San Francisco, the sum of $3799.56 on account of duties illegally exacted by the collector on divers importations of cotton shoes and silk shoes, brought into said · port in the year 1886 by several importers from ports in China. The complaint contained forty-seven counts for various amounts alleged to be due upon an equal number of importations made by many different firms and persons, and the plaintiff claimed to be entitled to recover the aggregate sum by reason of having become the owner of these several claims by way of purchase and assignment.

Issue having been joined, a trial by jury was waived by stipulation, and it was agreed that all the importations of cotton shoes referred to in the several counts might be considered under one head, and all the importations of silk shoes under another. The Circuit Court thereupon made its findings of fact and therefrom its conclusion of law that the plaintiff was entitled to recover the entire sum sued for. Judgment was accordingly entered against the collector, who brought the case by writ of error to this court.

The upper part of the shoes was composed of cotton or of silk and a portion of the soles was of felt, made up of coarse animal hair of different kinds and of wood fibre and starch or glue, all of which had been felted, mixed, and pressed into layers, which layers were in turn pressed together until the requisite thickness was reached. The most valuable material

Opinion of the Court.

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of the shoe was the silk or cotton respectively, and no part contained hair of any kind in the textile fabric, nor were they made up by the tailor, seamstress, or manufacturer of similar character to a tailor or seamstress.

The collector decided that these shoes were dutiable under the paragraph of Schedule K of the tariff act of March 3, 1883, 22 Stat. 509, c. 121, fixing duty on wearing apparel of every description not specially numerated or provided for, composed wholly or in part of wool, worsted, the hair of the alpaca, goat, or other animals, made up or manufactured wholly or in part by the tailor, seamstress, or manufacturer, at the rate of forty cents per pound and in addition thereto thirty-five per centum ad valorem ; and exacted of the importers payment of the duties accordingly. The importers, as found by the court, “ for the purpose of getting possession of their said merchandise, paid the amount so required of them, but within the time required by law notified the collector of their dissatisfaction with and protest against his decision, and appealed to the Secretary of the Treasury, who affirmed the decision of the collector. The importers thereupon, for value, assigned their claims to the plaintiff, who, within the time required by law, commenced this action for the recovery of the said excess of duties." The Circuit Court held that the cotton shoes fell under the paragraph of Schedule I, (22 Stat. 506,) imposing thirty-five per cent ad valorem on manufactures of cotton not specially enumerated or provided for, and the silk shoes under the last paragraph of Schedule L, imposing fifty per cent on goods not specially enumerated, made of silk or of which silk was the component material of chief value. 37 Fed. Rep. 780.

It was held by this court in Arnson v. Murphy, 109 U. S. 238, that the common-law right of action against a collector to recover duties illegally collected was taken away by act of Congress, and a statutory remedy given, which was exclusive. Rev. Stat. SS 2931, 3011. Arnson v. Murphy, 115 U. S. 579; Cheatham v. United States, 92 U. S. 85. While the commonlaw right was outstanding, the collector withheld as an indemnity the sum in dispute, but Congress provided that he must

Opinion of the Court.

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pay into the Treasury all moneys received officially, and that the Secretary of the Treasury should refund erroneous and illegal exactions. Rev. Stat. SS 3010, 30121.

The suit to recover back an excess of duties necessarily could only be maintained as affirmatively specified in the statute. Section 3011 of the Revised Statutes, as amended by the act of Congress of February 27, 1877, 19 Stat. 240, 247, c. 69, provides :

“Any person who shall have made payment under protest and in order to obtain possession of merchandise imported for him, to any collector, or person acting as collector, of any money as duties, when such amount of duties was not, or was not wholly, authorized by law, may maintain an action in the nature of an action at law, which shall be triable by jury, to ascertain the validity of such demand and payment of duties, and to recover back any excess so paid. But no recovery shall be allowed in such action unless a protest and appeal shall have been taken as prescribed in section twenty-nine hundred and thirty-one."

Section 2931 reads as follows:

“On the entry of any vessel, or of any merchandise, the decision of the collector of customs at the port of importation and entry, as to the rate and amount of duties to be paid on the tonnage of such vessel or on such merchandise, and the dutiable costs and charges thereon, shall be final and conclusive against all persons interested therein, unless the owner, master, commander, or consignee of such vessel, in the case of duties levied on tonnage, or the owner, importer, consignee, or agent of the merchandise, in the case of duties levied on merchandise, or the costs and charges thereon, shall, within ten days after the ascertainment and liquidation of the duties by the proper officers of the customs, as well in cases of merchandise entered in bond as for consumption, give notice in writing to the collector on each entry, if dissatisfied with his decision, setting forth therein, distinctly and specifically, the grounds of his objection thereto, and shall within thirty days after the date of such ascertainment and liquidation, appeal therefrom to the Secretary of the Treasury. The decision of the Secretary on

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