It is admitted' that the duties upon the goods imported by the plaintiffs were charged at too high a rate, but the 5th section of the act of March 3, 1857 (11 Stat. 195), provides, that, on the entry of goods imported after the 1st of July, 1857, the decision of the collector, as to their liability to duty or exemption therefrom, shall be final and conclusive against the importer or agent, unless, within ten days after such entry, he shall give notice to the collector, in writing, of his dissatisfaction with such decision, &c., and shall, within thirty days after the date of such de cisión, appeal to the secretary of the treasury, whose decision shall be final, unless suit shall be brought within thirty days after such decision, for any duties that may have been paid, or may thereafter be paid.
The goods in this case were entered for warehousing by the plaintiffs, July 18th, 1861, and an estimate of the duties was made at the rate of thirty per cent., amounting to the sum of 8788.10. A warehouse bond was given on the same day in the penalty of double the amount, conditioned for the payment of the $788.10, or of the amount of duties to be ascertained as due. The withdrawal entry was made on the 19th of September, 1861, and the duties were paid on that day, under protest. An appeal was taken to the secretary of the treasury on the 1st of October, 1SC1, and his decision was made and communicated to the collector on the 13th of May, 1862. This suit was commenced on the 13th of June following.
The ground taken by the government is, that the entry of the goods mentioned in the 5th section of the act of 1857, means the warehouse entry, which, in this case, was made on the 18th of July, 1861; and that, as the notice of dissatisfaction was not given till the 19th of September, and the appeal was not taken till the 1st of October following, the ten days had elapsed, and the plaintiff is concluded. On the part of the plaintiff it is insisted, that the entry referred to as the period from which the time is to be estimated, is the entry for withdrawal, when, by the statute, payment of the duties is required.
The 4th section of the act of March 28, 1S54 (10 Stat. 271), provides, that all goods, &c., which may be thereafter ■ duly entered for warehousing, &c., may continue in the warehouse, without payment of the duties, for the period of three years (now changed to one year by a recent act) from the date of the original, importation, and may be withdrawn for consumption on due entry and payment of the duties. If this entry is the one to which the 5th section of the act of 1857 refers, and I am strongly inclined to think it is, then all difficulties and embarrassments attending these appeals are at once removed. The estimate of the duties, for the purpose of warehousing the goods,, is a rough general estimate, in practice at the customs, as appears, usually adopting the highest rate of duty applicable to any of the articles entered, with a view to the taking of the warehouse bond. The bond for the goods in question illustrates this. The penalty, is in double the estimated duty, and the condition is to pay that estimated amount, or the amount of duties to be ascertained as due upon the goods; and, in this very case, the duties were not in fact finallyliquidated and fixed till morethan the ten days had expired from the first entry, so that no notice of dissatisfaction could possibly have been given, or any appeal taken, within the time prescribed, if this entry is the one contemplated by the statute.
A very intelligent witness from the customs, who was a liquidating clerk in the warehouse department, has been examined. He states, that after the warehouse entry is made, the goods, or the portion of them required by law, are sent to the examiners, who examine them and report to the collector, by making notes on the back of the invoice; that upon this report the collector fixes the rate of duty; that, after it is fixed, the papers are sent to the naval officer, to-receive his check, and then to the bookkeeper of the warehouse, to be entered; that no notice of the duty, as fixed by the collector, is given to the merchant; and that such time is taken up in the various steps of examining the goods, reporting to the collector, and fixing the rate of duties by him, &e., as the exigency of the business may require in the departments. It is quite apparent, that the time when the collector determines the rate of duty, that is, makes his decision, within the meaning of the statute,