(charging jury). This action was brought to recover the amount of a bond dated June 30, 1841, conditioned for the payment of $793 on the 30th of December, 1841, that being a moiety of the duties charged on a shipment of molasses imported by the defendants, in the brig Augusta, from Trinidad, Cuba, and entered at the custom-house on the day of the date of the bond. The execution of the bond is admitted, but it is alleged that the amount of the duties has been improperly assessed, and the sum of $131.61 overcharged on this shipment. By the act of May 29, 1830, it is enacted, that from and after the 30th of September, 1830, the duty on molasses (which by the act of 1828 was ten cents per gallon) should be “five cents for each gallon, and no more.” By the act of March 2d, 1833, commonly called the “Compromise Act,” it is provided that from and after the 31st December. 1833, in all cases where the duties which had been imposed on foreign imports by the act of 1832. “or by any other act,” should exceed twenty per centum on the value thereof, one-tenth part of such excess should be deducted; on the 31st of December, 1835. another tenth; on the 31st December, 1837. another tenth; on the 31st December, 1839, another tenth: and from the 31st December, 1841, one-half the residue of such excess; and from and after the 30th of .Tune, 1842, the residue of such excess.
The controversy in this case arises out of the mode of ascertaining what was the value *466of tiie molasses on which the duty is to be assessed. On the part of the United States it is alleged, that the value is to be ascertained in the same way that the value of articles subject to an ad valorem duty is ascertained; while the defendants contend that such is not the true construction of the act. That the term “ad valorem,’’ as mentioned in the various revenue laws of the United States, charging a duty on imports, does not always mean the actual value of the article at the place of exportation, is evident from an examination of some of the acts. The act of ISIS, § 4 (3 Story’s Laws, 16S0 [3 Stat. 433]), directs that ad valorem rates of duty shall be estimated by adding twenty per cent, to the actual cost thereof, if imported from or beyond the Cape of Good Hope, and ten per cent, on the actual cost if imported from any other place, including all charges, except commission, outside packages, and insurance. The acts of 1S23, § 5 (3 Story’s Laws, 1884 [3 Stat. 729]), and of 1828 (4 Story’s Laws, 2117 [4 Stat. 273]), provide, that to the actual cost or value the same percentage shall be added, and as to the charges only excepts that of insurance. The act of 1832 (section 15) directs that to the actual cost or value, all charges except insurance shall be added, but section 4 abolishes the addition of ten and twenty per cent. The seventh section of the act of 1832. directs that goods shall be appraised at their true or actual value, at the time of purchase and place of exportation. “any invoice or affidavit to the contrary notwithstanding.” The third section of the act of 1833, provides that from and after the 30th of June, 1S42. the duties required to be paid by law on goods, wares and merchandise. shall be assessed upon the value thereof at the port where the same shall be entered, under such regulations as may be prescribed by law: this section, however, was not in operation when these goods were imported. A letter of instructions from the secretary of the treasury, directing the mode of estimating duties under the law of 1833, has been given in evidence, and relied on by both parties, as supporting their view of the case: but such instructions, although they may be a justification for the officer enforcing them, are not binding on the citizen, unless they contain a correct interpretation of the law.
What, then, under these several acts of congress, 'was the true- and legal duty chargeable on this invoice by the Augusta? It is said by the defendants that in addition to the value of the molasses, the custom-house officers have charged a duty of twenty per cent, on the hogsheads or casks in which it was contained. If they have done so. it is an error.
The various acts of congress imposing duties on the importation of foreign merchandise, have always had reference to the package. vessel or article in which such merchandise is imported, but in no instance have they imposed a separate or distinct duty on such article; thus, for instance, by the act of 1832, a duty of six cents per gallon is imposed on red wines of France imported in casks, while the same wine imported in bottles is subjected to a duty of twenty-two cents per galltfn. By the same act a specific duty is imposed on bottles; yet it will not be pretended that the wine imported in bottles shall pay a duty of twenty-two cents per gallon, and the bottles in which it is contained a separate and distinct duty. The distinction is, that wine in bottles is sold with the bottle, and is thus of greater value than wine in casks; the duty is charged on the article in the state or condition in which it is exported.
Have, then, the duties on this invoice been charged on a sum greater than the value of the molasses at the time and place of exportation? The defendants contend that the duties are chargeable only on the first cost of the molasses, and if they could have exported it at that price they are correct, and the charge for the hogsheads should' not be added. But was the value of the molasses at the time of exportation no more than when purchased at the plantation? Could it have been exported without the hogsheads or casks? Did not its being placed in these increase its value to the extent of the sum mentioned in the invoice? If so. the duties are correctly charged, as they are to be levied on the value and condition at the time and place of exportation, and not on the original cost of the article in the interior of the country. But if the jury should think that, in addition to the value of the molasses, the custom-house officers have charged a distinct and separate duty on the hogsheads, the defendants will be entitled to a credit on one-half of such excess in this suit, the bond being only for a moiety of the duties on this importation, and no part having as yet been paid.
The defendants also claim an allowance for a similar charge, amounting to $345.22, on sugar and molasses imported in the Hercules. which they have paid. If the jury believe that the value of the sugar or molasses embraces all costs and charges at the place of exportation, including the costs of hogsheads. barrels, boxes. &c„ necessary to enable the parties to export it. then it will be unnecessary further to consider the question; should they think otherwise, then a new question arises for their consideration, and that is, were the duties on this shipment paid voluntarily and without objection, in consequence of the parties mistaking the law; if they were so paid, they cannot be recovered back or deducted from the. claim of the United States. It has been argued that a payment. to a public officer, cannot be considered as a voluntary payment, as he holds the compulsory power in his own hands: this may be so where the party paying objects, at the time of payment, to the propriety and legality *467of the charge. It is not necessary there should be a formal, written protest, but there must be some objection, some notice that the claim.is disputed, as the ground of objection or dispute may be removed or agreed to; but if paid without such objection, merely on a mistaken construction of the law, it is binding. and cannot be recovered back, or set-off against another demand. Was there then any such notice or objection by the defendants at the time of payment? The only evidence on their part is that of Mr. Newman, who says there was no formal protest, but Mr. Clement informed him there was a mistake in calculating the duties, and that he (Mr. Clement) had been talking to Mr. ICem about it. Mr. Kern, who was a deputy collector, is since deceased, his testimony was not taken in his lifetime, and no witness is produced who heard the conversation.. On the other side, Mr. Howell, deputy collector, Mr. Martin, the cashier, Mr. Bell, the ascertaining clerk, and Mr. McAdam, the bond clerk, have all been examined, and each of them say they never heard of any complaint by the defendant, and Mr. Howell states that if such complaint had been made, it would have .been within his peculiar duty to examine it, but he knows of none.
Still, this is a question of fact for the jury, and it is their province to decide it, the burden of proof being on the defendants. If you are satisfied that a duty was charged on the boxes or hogsheads, over and above the value of the sugar or molasses at the time and place of exportation, and that such excess was paid by the defendants, they at the same time protesting or complaining against the justness or legality of the demand, then they are entitled to deduct the amount of such excess from the sum claimed in this suit. If, however, you believe that no such excess was charged, or if charged, that it was paid voluntarily and without complaint, it is binding on the defendants, and they will not be entitled to the deduction.
On the 28th March. 1843, the jury returned a verdict for the United States against Clement for $831. Newman having been discharged under the bankrupt law.