In 1864 a verdict was rendered in this case, and a number of other cases involving the same questions, upon the consent of counsel in open court. The suits were brought to recover duties alleged to have been illegally exacted by the defendant as collector of the port of New York upon merchandise imported by the plaintiffs. The duties were levied under section 1 of the act of congress of March 3, 1861, directing the collector to levy duty upon the actual market value or wholesale price of merchandise, at the period of exportation to the United States, in the principal markets of the country from which the same is imported, and upon “all costs and charges except *339insurance, and including in every case a charge for commissions at the usual rates.” The verdict was “for the plaintiffs - for excess of duty, with interest thereon, illegally exacted from plaintiffs, and paid under protest to defendant and not barred by the statute of limitations.” It further stated in general terms upon what charges and commissions the duties exacted might be recovered; among others, as follows: “On charges on merchandise imported at New York for the transportation of the goods from the interior of the country, by railroad or water carriage, incurred prior to the time of exportation.” A reference was subsequently ordered to a referee to ascertain and report the amount due to the plaintiffs in the several cases.
The exceptions to the referee’s report present various questions which are not open to consideration. Certainly the verdict rendered in 1864, upon the consent of counsel, must be as conclusive upon the matters covered by it as a stipulation formally made and acquiesced in for nearly 20 years. That verdict precludes the defendant from denying that the plaintiffs are entitled to recover excess of duties illegally exacted by, and paid under protest to, the defendant. When the plaintiffs show that they have paid excessive duties under protest to the defendant, by the terms of the verdict they are entitled to recover the same. The defendant cannot, therefore, avail him'self of a defense which proceeds upon the theory that plaintiffs never had a cause of action for the recovery of such duties. The defense of a former suit in bar is of that character.
The defense of the statute of limitations was reserved to the defendant by the terms of the verdict, but when the case was before Judge Blatchford, on defendant’s motion to be allowed to plead the statute of limitations, he denied leave. This was, doubtless, upon the theory that the right to interpose that defense only applied to those cases in which it had been pleaded. The verdict was rendered in a large number of cases, and is so indefinite in many of its clauses that Judge Nelson, in 1868, in Winslow v. Maxwell, and Judge Benedict, in 1869, in Greenleaf v. Schell, treated it as a stipulation open not only to construction but to modification. The order of Judge Blatchford precludes the defendant from availing himself of the statute of limitations.
The defendant insists that the referee improperly allowed the sums paid for duty upon the charges on the merchandise at Havre after its arrival there. The evidence shows that these charges were for cartage and commissions to the merchant who received the merchandise for the plaintiffs, and put it on board ship for exportation. *340They .were not charges for inland transportation from one principal market to another, and therefore were not specified in the protest of the plaintiffs. Construing the verdict with the aid of the protests, it seems clear that it was never intended to authorize the recovery of duties paid for such charges; and that this is the true construction is the more clear because the recovery intended to be authorized by the verdict was forffuties whieh the' courts had held were not legally collectible, and which the treasury department had conceded to have been illegally exacted. This is a part of the history of these cases in this court. It had been decided that charges‘for freight, on transportation of merchandise from the interior markets of the country to the port of exportation, were not dutiable. Gibb v. Washington, 1 McAll. 430. It had also been decided that charges for freight or transportation, from the place of shipment to the port of importation, were not dutiable. The treasury department had acquiesced in these decisions. It had never been decided that charges for loading the merchandisé on shipboard at the port of exportation, or that the commissions of those who took charge of the merchandise at such port, were not legitimate charges and commissions upon whieh duty was leviable. In the treasury circular of May 21, 1863, it is announced that just such charges and expenses as are here contested should be added to tbe value of the goods in levying duty. That regulation was in force, and the recognized rule of the department, when this suit was brought, and when the verdict, upon consent, was entered. It cannot be supposed the government meant to abandon its contention without a contest, and the language of the verdict does not require such an interpretation. The sums paid for duties levied upon these charges and commissions should be disallowed in. the recovery. If the protest had contemplated contesting any part of these charges and commissions it might be open to inquiry whether any part of them were incidental to the transportation from Reims to Havre. But there would be ,no reason for doubt respecting the addition to the market value of such charges as would have been incurred if Reims had been the port of exportation instead of Havre. As the case stands, however, this inquiry cannot be pursued. The verdict “is no broader than the terms of the protest.
There is no merit in the point taken by the defendant that the plaintiffs cannot recover for the duties paid during the period when one of them had no interest in the cause of action. If there had been a plea of misjoinder, quite likely, under the terms of this very peculiar verdict, it might have availed the defendant.
*341The verdict did not liquidate the damages recoverable by the plaintiffs, and it was erroneous to make a rest, at the date of the verdict, in computing the interest which the plaintiffs are entitled to as part of their damages.
The case is referred back to the referee to ascertain the sum due the plaintiffs upon the principles thus stated.