navigation, and demands no extra skill, or responsibility on the part of the pilot. The charges are preposterous and abusive.

Allusion has been made several times to the hurricane and flood of 1846. It took place on the 10th of October, and was very destructive. The water, driven in by the violence of the wind, rose over the wharves, flooded the streets, and covered almost the entire city to the depth of several feet. From noon of Sunday till about daylight on Monday morning, it stood three feet over the floors of most of the buildings in Duval and the adjacent streets. The wind blew a hurricane all the time, and the usurping waters surges to and fro with terrific and destructive violence. Many buildings were unroofed, and many more were entirely thrown down. The LightHouse has already been spoken of. The Custom House, and the Episcopal Church, both built of stone, shared the same fate. Boards and timber were blown about like shingles. Nearly all the cocoa nut and orange trees on the island were rooted up and destroyed. A large box, containing muskets, which was in the fort, was found, the next day, on Tifft's Wharf, nearly half a mile distant. A grind-stone, from near the same place, was found on another wharf, and heavy timber from the wharves was piled up in different places, making the streets nearly impassable. Wrecks and parts of wrecks were found all over the island. The grave-yard which was on the southern shore, was wholly uncovered, and bones, and skeletons, and coffins, dashed about, and scattered far and wide. After the storm subsided, one coffin was found standing upright against the bole of a tree, the lid open and the ghastly tenant looking out upon the scene of desolation around, as if in mingled wonder and anger that its rest had been so rudely disturbed.

JOURNAL OF MERCANTILE LAW.

ACTION TO RECOVER EXCESS OF DUTIES-OF THE RIGHT OF SHIPPING MERCHANTS TO HAVE INVOICE PRICES, WHEN STATED IN FOREIGN CURRENCY, VALUED AT A SPECIFIC STANDARD, &c.

In United States District Court, April Term, 1851. Before Judges NELSON and BETTS; J. S. McCulloh for Plaintiff. J. Prescott Hall, U. S. District Attorney for Defendant. Samuel Grant vs. Hugh Maxwell.

June 2, 1851. Betts, District Judge, delivered the opinion of the Court. The action in this case was brought against the Collector, to recover an excess of duties alleged to have been exacted by him, and paid by the plaintiff, on the importation of an invoice of goods from Trieste. A verdict was taken on the trial, by consent of parties, in favor of the plaintiff, subject to the opinion of the Court, and to correction and adjustment at the Custom-House.

The main facts in the case are not in dispute. The goods imported were purchased in Austria, and shipped at Trieste, for the United States.

The invoice and entry represented the true purchase and market price in Austria in paper florins, equal in value to silver florins, at 19 and 18 discount, according to the different periods of purchase.

This depreciation was proved by the official certificate of the United States Consul at Trieste, and also by the testimony of witnesses examined on the trial. It was further proved that the legal currency in Austria at those dates, was paper money, estimated in florins and made by law a lawful tender at their nominal value.

Some questions were raised at the trial, and reserved on the case as to the

admissibility of particular portions of the evidence, but not being pressed on the argument, they are not now noticed in the decision of the Court.

By Act of Congress, passed May 22, 1846, (Sessions Laws, p. 21, ch. 23,) it is enacted, that" in all computations at the Custom House, the foreign coins and money of account herein specified, shall be estimated, as follows," (amongst other currencies specified,) "the florins of the Austrian Empire, and of the City of Augsburgh, at forty-eight and one-half cents, and all laws inconsistent with this act are hereby repealed." (Session Laws ch. 23, p. 21.)

For the defendant it is urged, he was bound by the terms of the act to charge duties on the goods in question, rating the florins of the invoice at forty-eight and a half cents each, without regard to their specie value or depreciation.

The plaintiff, on the other hand, claims the goods are subject to duty only upon their cash value abroad, and that he is entitled, in order to fix that value, to have the paper or nominal value in which they were purchased and are invoiced reduced to its specie value in Austria, and to enter the goods on that valuation.

The purpose of the Government in all its laws imposing ad valorem duties on foreign merchandise imported into this country has been to take the true value of the goods in the country producing them, or in which they were obtained, ascertained by the actual purchase price, or market value as the basis upon which amount duties are to be computed.

This is manifested in the various revenue laws, from time to time introducing new provisions to enable the Collectors to fix the foreign value correctly, and to render duties uniform. The oaths exacted to invoices and on entries, and the enlarged powers conferred on appraisers, together with the early regulation by law of the value of foreign currencies, with the methods of determining their depreciation are all designed to accomplish that end. The enactments to this purpose are found in the Acts of 1789, 1790, 1799, 1801, 1823, 1828, 1830, 1832, 1842, and 1846. (1 Statutes at Large, 24 ibid., 180 ibid., 627-2 Stats. at Large 121, 3 ibid. 729, 4 ibid. 270, ibid. 583, 5 ibid. 563.)

The invoice value of merchandise must be expressed in money, and the invoice and entry must particularly specify what money the goods are bought and valued in, (1 Statutes at Large 655 (36,) and they must be invoiced in the currency of the country whence imported without respect to the intrinsic value of the money or the standard of the United States fixed for its value, (2 Statutes at Large 121 2.)

Still the actual wholesale cash value is to be ascertained, and made the dutiable basis, notwithstanding any aflidavit or invoice statement or valuation. (5 U. S. Statutes, 563 § 16.)

The earlier and later enactments concur in enforcing the one prominent object, that of having at the Custom House the actual value in cash of the merchandise imported at the places of its exportation. To make that purpose effectual, in addition to the regulations respecting invoices, entries, and appraisals, Congress by the Act of 1799, 61, fixed the rates at which all foreign coins and currencies shall be estimated in the United States, giving to various known denominations of foreign money a specific value, and requiring all other denomi nations to be estimated as nearly as may be in value, to such fixed rates, or the intrinsic value thereof, compared with money of the United States, (1 Statutes at Large, 673.)

The following proviso was added to the section," That it shall be lawful for the President of the United States, to cause to be established fit and proper regulations for estimating the duties on goods, wares and merchandise imported into the United States, in respect to which the original cost shall be exhibited in a depreciated currency issued and circulated under the authority of any foreign government."

The main question submitted to the Court for its decision upon the arguments of the respective counsel accordingly is, whether the Act of 1846 covers the subject, so that the cost price of the goods must be estimated at forty-eight and a half cents the florin, stated in the invoice, or whether the proviso to the 61st section of the Act of 1799 operates in the case, and entitles the plaintiff to enter

his goods upon paying duties upon the specie, or intrinsic value of the Austrian florin or currency.

The Act of March 2, 1799 is regarded the fundamental law in relation to imports and duties, and each of its enactments to be independent, forming a rule upon the particular subject, which is not changed by subsequent legislation varying other provisions of the act.

The like doctrine applies to the succession of Statutes which have followed the parent Act, and accordingly the law or imports and duties is enforced as a system composed of distinct enactments passed at successive periods of time, and each distinct provision is executed as part of the system, notwithstanding the change or repeal of other provisions in those acts, in relation to the denomination of imports, the rates of duties, or the methods of computing them.

This is sometimes by virtue of a saving clause appended to the same act, (4 Stats. at Large, 583, § 1,) and sometimes by declaring all provisions of any former law inconsistent with the Act last passed, repealed (5 Stats. at Large, 566 § 26,) and Act of 1846. (Sess. Laws 21, ch. 23,) the Act now in question; and by the decisions of the Courts on posterior enactments, anterior to the passage of the Act of 1846, the Treasury Department had treated the proviso to § 61 of the Act of March 2, 1799, as continuing in force, and duties were levied in conformity to its provisions. (Treasury Instructions to Collectors, Aug. 20, 1845; ibid. May 14, 1831; ibid. Oct. 16, 1832; ibid. Aug. 4, 1840.)

The last instructions from the Secretary of the Treasury, dated Oct. 12, 1849, directs that bonds taken for the production of consular certificates of the value of depreciated currencies must be strictly enforced, which imports the continuing operation of that proviso, because the consular certificates come into existence and have validity solely under the powers given by that proviso.

The Act of 1799, 61, fixed the value of certain foreign coins, or currencies; so subsequently did the Act of March 3, 1801; and similar provisions were reenacted in 1832, 1843, 1845, and 1846-the three last Acts being framed in like terms and declaring the values of foreign coins, anything in any former Act to the contrary notwithstanding.

It is plain upon this summary statement of the course of legislation and practice on the subject, that the proviso to 61 of the Act of 1799 is to be regarded as repealed only in the contingency that it stands opposed to subsequent Acts of Congress, and especially that of May 22, 1846.

The reason for its preservation and enforcement, as a relief secured to importers against the payment of ad valorem duties on amounts beyond the fair value of the merchandise imported, is the same at the present time as when it was enacted.

What then does the proviso require? Clearly not a disregard for the valuation of foreign currency designated by Statute, but only a method of determining whether that value remains unchanged, and the actual value corresponds with the nominal rate. The invoice must be expressed in the currency of the country from which the goods are exported, or in which they are produced. The nominal currency will necessarily very often give the cost or market value very wide from the truth. In the case before the Court it is proved beyond question that the goods imported are rated nearly 20 per cent above their actual value in Austria, and beyond the real cost to the importer.

This discrepancy is forced on him by the imperative direction of the revenue laws. He must invoice the goods at the cost or value expressed in the currency of Austria, although they are obtained at one-fifth less that amount in specie, and without the aid of the proviso he will be precluded showing the actual cost or value.

It seems to us the proviso acts no way in contradiction of the Statute of 1846. It supplies the Custom House a means of laying duties on invoices in conformity with the general provisions and scope of the revenue laws, and helps to carry out the intention of Congress by keeping the fluctuations of nominal value to the standard of specie value, in transactions in foreign currencies.

Congress do not make the foreign currencies named in the Statute receivable

in the United States at the values applied to them. Had that been so, the merchant might be considered protected by the opportunity of paying duties in the currency of his invoices. The proviso looks to a remedy for the injury that might without its aid be sustained by importers under the peremptory regulation of foreign coins and currencies as a measure of the foreign value of merchandise.

We think there is no incompatibility or inconsistency between the Acts subsequent to 1799, upon this subject, and the proviso, and that accordingly, neither by the terms of the Act of 1846, or those antecedent to it, nor by legal implication is the proviso repealed, or its legal operation suspended.

The business of the country was conducted on that understanding of the law antecedent to 1846, and collectors and the Treasury Department unitedly admitted importations and charged duties in conformity with regulations adopted by authority of the proviso.

The proviso was repugnant to the enacting clause of section 66 of the Act of 1799, precisely as it is to a like designation of the value of foreign currencies by the Act of 1846. That section in nearly identical language declared the value of various denominations of foreign moneys, but the proviso referring to the depreciation of foreign currencies in which the original cost of goods was exhibited, would necessarily include those specified in the enacting clause, equally with those not named.

There was no less necessity for the interposition of the President in relief of the merchant, when his invoices were made up in a currency which had depreciated after its valuation once determined by Congress, than where no rate of valuation had been established by law.

The proviso is accordingly framed to apply to all importations when the invoice is exhibited in a depreciated currency issued and circulated under the authority of a foreign government, and necessarily embraces equally those whose value has been once fixed by Congress, and those which have never been recognized by our laws.

The Treasury Circular of August 20, 1845, regards the proviso as in the alternative. Its directions relate to invoices made out in a foreign depreciated currency, or a currency the value of which is not fixed by the laws of the United States.

This, we think, the correct reading and exposition of the proviso to the 61st section of the Act of 1799.

Congress has since, from time to time ascertained the existing value of various foreign coins and currencies, and declared them by Statute. This relieved the Treasury Department from keeping on foot a train of investigations at every importation, respecting the value of the currencies in which the invoices were exhibited. The Statute value was adopted as the real one for the time being. But it was manifest such valuations must be liable to changes from the adulteration of coins or the emission of paper or base currencies abroad, and it was consonant with the general course of legislation in relation to the revenue, that a means should be supplied the Executive Department to maintain uniformity in imports and duties, without delaying the business of the country, or enforcing hardships or inequalities upon importers, until special legislation could be interposed to remove the difficulty.

of

The proviso supplied such means, and as its operation was so appropriate as well as effectual and just, we must conclude it to have been the purpose Congress to retain it in force, when they have not in express terms rescinded it, or passed any enactment necessarily repugnant to it. On the contrary, it seems to us, that the proviso being essentially prospective, contemplating and arranging for a state of things which may come into existence at future periods, the Act of May 22, 1846, instead of being construed as repealing it, ought to be understood as upholding and sanctioning the powers conferred by it on the President.

Judgment must therefore be entered on the verdict for the plaintiff, and the amount be adjusted according to the stipulations or reservation of the case.

ACTION ON A BILL OF EXCHANGE-BANK CHECKS.

In the Superior Court, New York City, 1851. Before SANFORD DUER and CAMPBELL, Justices. G. W. Thatcher vs. The Bank of the State of New York and D. Thatcher.

On the 5th July, 1850, G. W. Thatcher, at St. Louis, Missouri, drew a bill of exchange on D. Thatcher, of Bridgeport, Conn., for $2,500, payable at the Bank of the State of New York, in this city, on the 5th Oct., 1850. The bill was accepted, and after being twice endorsed was sent to the American Exchange Bank for collection. On the day it became due, at or soon after 3 P. M., the notary of that bank presented it at the Bank of the State to a person at the paying teller's desk, (not the paying teller,) who said there were no funds to pay it. The bill was thereupon protested for non-payment, the usual notice thereof given, and it was returned to the holder at St. Louis, who claimed and received of the drawer, G. T. Thatcher, ten per cent damages, that being the rate allowed by the Statute of Missouri. It appeared that on the 5th Oct., 1850, the bank clerk of E. D. Morgan and Co., before 10 A. M., handed to the paying teller of the Bank of the State of New York, their certified check for $2,500, (the same as cash,) and asked him to pay the bill in question when presented that day. The teller took the check, but made no answer to the request. The check was subsequently received from him. This clerk had before left funds with the paying teller to take up paper accepted by D. Thatcher, and he testified he had been in the habit of leaving funds with other paying tellers to take up paper, and no teller ever refused to take the same. The paying teller of the American Exchange Bank testified that it was customary to leave funds with the paying teller, when the note is payable at a bank, and the party keeps no account there.

Neither of the Thatchers kept an account in the Bank of the State of New York, or ever had any funds deposited there to their credit. Some other facts appearing at the trial are mentioned in the opinion of the Court. At the close of the evidence, the counsel for the bank moved for a non-suit. The judge reserving the question, denied the motion, and gave a pro forma judgment for the plaintiff, from which the Bank appealed to the general term.

BY THE COURT-SANDFORD, J.-The action is founded wholly upon the neglect of the bank to pay the bill of exchange drawn by the plaintiff, and it was incumbent on him to establish that the bank had assumed or become liable to perform such a duty in his behalf.

The complaint alleges that the plaintiff or his agents left funds with the paying teller for the purpose of paying the bill; but there is no proof of that statement. It does not appear who furnished the funds, and inasmuch as it was presumptively the acceptor's duty to provide them, we certainly are not at liberty, in the absence of proof, to infer that they were furnished by the drawer. As the case stands, the money was delivered to the teller in behalf of the acceptor, and if the bank assumed any duty in the premises, it was to him, and he alone was entitled to an action for its neglect. There was no privity whatever between the bank and the drawer, the bank owed no duty to him, and if he can maintain this suit for damages, so can each of the endorsers to the extent of their damages and disbursements growing out of the protest of the bill. The proper course, on the plaintiff's case as proved, was for the acceptor to pay the protested bill, and then bring his action against the bank.

Assuming, however, that the drawer left the money, and can maintain a suit, how does the case stand? Was the paying teller the agent of the bank or of the drawer of the bill, in receiving the money in question? It appears that in this bank there were a cashier, a paying teller, and a receiving teller. Now we know and may assume (as was done 7 Hill 94) that the cashier is the principal executive officer of the bank. A bank is not bound to receive on deposit, or to keep, the funds of every man who offers money for that purpose. It may select its dealers, and refuse such as it pleases. For the purposes of this selection, the cashier appears to be the proper officer. The bank pays for its dealers, who