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PROHIBITIONS.

§ 436. Beer, ale, porter, refined sugar, and distilled spirits, not to be imported in packages of less than certain capacities. No beer, ale, or porter, shall be brought into the United States by sea, from any foreign port or place, except in casks or vessels, the capacity whereof shall not be less than forty gallons, beer measure, or in packages, containing not less than six dozen bottles, on pain of forfeiture of the said beer, ale, or porter, and the ship or vessel in which the same shall be brought; nor shall any refined lump or loaf sugar be imported into the United States, from any foreign port or place, by sea, except in ships or vessels of one hundred and twenty tuns burden, and upwards, and in casks or packages containing, each, not less than six hundred pounds weight;1 nor shall any distilled spirits (arrack and sweet cordials excepted) 2 be imported, or brought into the United States, except in casks or vessels of the capacity of ninety gallons, wine measure, and upwards, nor in casks or vessels which have been marked pursuant to any law of the United States, on pain of forfeiture of the said refined lump and loaf sugar, and distilled spirits, imported contrary to the provisions herein described, together with the ship or vessel in which they shall be so imported: 3

1 This applies to sugars refined in the United States, exported to a foreign country with benefit of drawback, and subsequently brought back.

2 By the act of March 2, 1827, subsequently extended without limitation by the act of February 27, 1830, brandy was also excepted from the operation of this section, and its importation authorized in packages of not less than fifteen gallons.

3 It has been made a question whether the prohibitions above cited apply to importations other than by sea from the British North American Provinces, and the department is of opinion that they are made applicable to such importations by the provisions of the 106th section of the general collection law of March 2, 1799.

The prohibition in the 103d section of the general collection law of the 2d March, 1799, and other acts, of the importation of distilled spirits and other articles in packages of less than a prescribed capacity, does not apply to such articles as are shown, by the manifest, bill of lading, and invoice, to have been originally shipped in good faith to parties residing in foreign territory adjacent to the United States, and intended merely to pass, in transit, to their destination.

The 103d section of the act of the 2d of March, 1799, forfeits both the prohibited packages and the vessel in which imported; and whenever seizures are made to enforce the forfeitures of that section, they should embrace both. Gen. Reg. Art. 856-858.

Provided, That nothing contained in this act shall be construed to forfeit any spirits for being imported, or brought into the United States, in other casks or vessels as aforesaid, or the ship or vessel in which they shall be brought, if such spirits shall be for the use of the seamen on board such ship or vessel, and shall not exceed the quantity of four gallons for each seaman. Act March 2, 1799, § 103.

§ 437. Importation of indecent articles, prints, &c., prohibited. The twenty-eighth section of the act of Congress, approved the 30th of August, 1842, and entitled "An act to provide revenue from imports, and to change and modify existing laws imposing duties on imports, and for other purposes," is amended as follows: The importation of all indecent or obscene articles, prints, paintings, lithographs, engravings, images, figures, daguerreotypes, photographs, and transparencies, is hereby prohibited, and no invoice or package whatever, or any part thereof, in which any such articles are contained, shall be admitted to entry; and all invoices and packages whereof any such articles shall compose a part, are hereby declared to be liable to be proceeded against, seized, and forfeited by due course of law, and the said articles shall be forthwith destroyed. Act March 2, 1857, § 1.

§ 438. Importation of dutiable goods in vessels belonging to the navy illegal. No officer or other person connected with the navy of the United States shall, under any pretence, import in any ship or vessel of the United States any goods, wares, or merchandise liable to the payment of any duty.1 Act July 30, 1846, § 10.

PROTESTS AND APPEALS.

§ 439. Duties illegally exacted can not be reclaimed unless paid under written protest. By an act passed February 26, 1845, it is provided that no action shall be maintained against any collector of the customs, to recover any moneys paid to such collector as and for duties, unless such moneys are paid under protest, made in writing, and signed by the claimant, at

1 No duty, as such, can accrue on goods, the importation of which is prohibited by law, nor can they be entered at the custom house or bonded. They are forfeited by the importation. Gen. Reg. Art. 358.

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or before the payment of the said duties, setting forth distinctly and specifically the grounds of objection to the payment thereof.

§ 440. Right of action limited.—By the fifth section of the tariff act of 1857, it is further provided, that the decision of the collector of customs at the port of importation and entry, shall be conclusive, as to the liability of any goods to duty or their exemption therefrom, against the importer, unless the importer shall, within ten days after the entry of such goods, give notice to such collector, in writing, of his dissatisfaction with such decision, setting forth distinctly and specifically his objections, and shall within thirty days after the date of such decision appeal therefrom to the secretary of the treasury, whose decision on such appeal shall be final and conclusive; and the goods shall be liable to duty, or exempted therefrom, any act of Congress to the contrary notwithstanding, unless suit shall be brought within thirty days after such decision for any duties that may have been paid, or may thereafter be paid, on said goods, or within thirty days after the duties shall have been paid, in case where such goods shall be a bond.

§ 441. Duties not paid under written protest not illegally exacted. However unauthorized by law the exaction of the duties may be, they are not illegally exacted, unless the protest required be made, and will not be refunded. This point has been fully settled by the Supreme Court, and is the established rule of the treasury.

§ 442. When protest must be made. — The law requires the protest to be made "at or before the payment" of the duties. This is construed to refer to the final liquidation, and adjustment of the entry, and a protest made either at the time of the entry of the goods, or at the time of the final settlement of the duties, on the report of the appraiser, or the return of the weigher, gauger, or measurer, is within the provision.

§ 443. What the protest must set forth. A protest, being a commercial document, need not be drawn with technical accuracy, but it must state distinctly every ground of objection intended to be relied on, and none other can be raised on the trial of a suit brought to recover any alleged excess of duties paid. An assertion that the goods were invoiced or entered at the time, at the true or actual value, is not a valid objection, because the law makes the decision of the appraiser on this point conclusive; but an objection that the appraisement was not fairly, faithfully, and legally made is sufficient, and under such an objection all the proceedings of the appraiser may be inquired

into.

But whatever the objection may be, it must be distinctly stated in the protest.

§ 444. Protest must be made on each importation. - A notice at the close of a protest that such protest is intended to apply to all future similar importations, does not dispense with the necessity of a protest in reference to those importations, and neither the department nor the courts will order the return of duties claimed under such a notice, though the exaction may have been unauthorized by law.

§ 445. Protest requisite in case of additional duties. — A protest against their exaction is necessary to recover back the additional duty of 20 per cent. imposed, by way of penalty for under-valuation, by the 8th section of the tariff act of 1846, and the act of March 3, 1857.

§ 446. Duties paid under protest not recoverable unless paid in order to obtain possession of the goods. - The act of February 26, 1845, restores the right of action, against a collector of the customs, to such persons as shall have paid or shall thereafter pay money, as and for duties, under protest, in order to obtain goods, wares, or merchandise imported by them or on their account. If the importer have obtained possession of his goods, the collector no longer having them in his custody or under his authority, and a demand be made for the payment of duties, such goods having been passed as free on the entry, or for an increased amount of duties, arising from an addition to the value or advance in the rate, and the importer pay the same, the payment will be regarded as a voluntary payment, and he can not maintain an action against the collector to recover the amount, although the exaction may have been unauthorized by law.1

§ 447. Protest, how required to be made. Under the regulations of the treasury department protests are required to be

1 An action was brought against the late collector of the port of New York to recover back duties paid under the following circumstances: Nine casks of hardware had been shipped to the plaintiffs, as appeared by the invoice produced by them and the manifest of the vessel, and a warehouse entry was made of the same, and bond given in the usual form. Seven casks only were found on board the vessel, two having been lost, forwarded by some other vessel, or not shipped at all. The plaintiffs withdrew from warehouse and paid the duties on the seven casks, but claimed that the duties on the two casks not imported should be abated. The collector, under instructions of the treasury department, refused the application. At the maturity of the warehouse bond the collector demanded the duties on the two casks, and in default of payment threatened to put the bond in suit. To avoid a suit the importers paid the duties under written protest, and brought an action to recover the amount in the United States Circuit Court, when it was held by Justice NELSON that the action could not be maintained because the money was not paid to get possession of the goods.

written on papers separate from the entry of the goods, and to be presented to the collector in duplicate—one copy to be filed in the collector's office, and the other to be transmitted to the secretary of the treasury.

§ 448. Protest to be examined before receiving duties.Collectors of the customs are required, (Gen. Reg. Art. 385,) whenever duties are offered under protest, to examine carefully the protest presented; and if the objections raised to the payment grow out of informalities or irregularities in the examination, appraisement, liquidation, or other proceeding on the part of the customs authorities, they are instructed, before receiving the duties, to cause such further proceedings to be had as shall, if practicable, cure the illegality or error protested against.

§ 449. Appeals under the act of March 3, 1857.—The 5th section of the act of March 3, 1857, as we have already seen, requires that on the entry of any goods, wares, or merchandise, the collector of customs at the port of importation and entry shall decide as to the liability of the same to duty or exemption therefrom. It is held by the department, (Treas. Reg. June 30, 1857,) that a decision on the liability of an import to duty, necessarily involves, under the forms of transacting the business of the customs, prescribed by law and regulations, the determination of the rate of duty to which it is subject, and it is from such a decision that the section referred to obviously intended to regulate and limit appeals. In other words, it is necessary, under the construction adopted, for an importer to appeal to the secretary of the treasury, not only in cases where a duty is imposed on an article claimed to be free, but also in cases where a rate of duty is assessed higher than that at which the import is claimed to be entered. In the same class of cases he must also, to save his rights, bring a suit within thirty days after the decision of the secretary of the treasury, if it be adverse to his claim, to recover the amount paid.

§ 450. The term "ten days after entry" defined. It may also be necessary to define the terms "within ten days after such entry," within which an appeal must be made to this department from the decision of the collector. Those terms will be construed as requiring the appeal to be made within ten days after the duties shall have been liquidated, for then the rate and amount of duty will have been finally determined by the collector. Treas. Reg. June 30, 1857.