This proposition requires that the judgment of the Supreme Court of California in the case before us be reversed. It is accordingly so ordered, and the case remanded to that Court for further proceedings in conformity with this opinion.

§ 2869.

The merchandise must be appraised, or bonds given by the importer in double its estimated value, before it is delivered from the custody of the officers of the customs. If the collector deems any appraisement too low, he may order a new appraisement, and may cause the duties to be charged accordingly. If the importer is dissatisfied with the appraisement, the collector

อ

CHARLES E. MILLER ET AL., Exrs.

((See S. C. Reporter's ed. 284-291.)

Collector's decision as to duties.

The notice of dissatisfaction with the decision made by the collector on the rate and amount of duties may, under the Act of 1864, be given at any time after the collector's decision and before the expiration of ten days from the final ascertainment and liquidation of the duties as stamped upon the [No. 1279.]

entry.

Argued Jan. 14, 15, 1889. Decided April 1, 1889.

ERROR to the Circuit Court of the United I States for the Southern District of New

York, to review a judgment for the defendants, in an action to recover back duties exacted on goods imported by plaintiffs in 1873. Reversed.

The facts are stated in the opinion. Messrs. Edwin B. Smith and Stephen G. Clarke for plaintiffs in error.

Mr. G. A. Jenks, Solicitor-Gen., for defendants in error.

Mr. Justice Gray delivered the opinion of the court:

praisers of a specified class, and, if they dis agree, decide between them; and the appraisement thus determined shall be final and duties levied accordingly. Acts of May 28, 1830, c. 147, §§ 2, 4, 4 Stat. at L. 409, 410; August 30, 1842, c. 270, § 17, 5 Stat. at L. 564; March 3, 1851, c. 38, § 3, 9 Stat. at L. 630; Rev. Stat. S$ 2899, 2929, 2930.

On the entry of any merchandise, the decis ion of the collector of customs at the port of importation and entry, as to the rate and amount of duties to be paid on such merchandise, shall be final and conclusive against all persons interested therein, unless the owner, importer, agent or consignee of the merchandise shall, within ten days after the ascertainment and liquidation of the duties by the proper offices

of the customs, as well in cases of merchandise entered in bond as for consumption, give notice in writing to the collector on each entry, if dissatisfied with his decision, setting forth therein distinctly and specifically the grounds of his objection thereto, and shall, within thirty days after the date of such ascertainment and liqui dation, appeal therefrom to the Secretary of the Treasury." Act of June 30, 1864, c. 171, § 14, 13 Stat. at L. 214; Rev. Stat. § 2931.

At the trial, the plaintiffs introduced evidence tending to show that the duties exacted and paid were excessive; that appeals to the Secretary of the Treasury were taken and this action brought in due time; and that the protest as to each entry was filed after the collector's decision on the rate and amount of duties, but before the date of the final ascertainment and liquidation of the duties, as stamped upon the entry.

The court directed a verdict for the defendants, on the ground that the protest was filed "before the liquidation of the entry to which it referred, and not within ten days thereafter, as required by law." The plaintiffs duly ex[285] cepted to the ruling, and, after judgment for the defendants, sued out this writ of error. The Customs Acts in force at the time of the importation of these goods contained the following provisions:

duties extends from the time of that decision, or only from the date of the final ascertainment and liquidation of the duties as stamped upon the entry, until ten days after that date; or, in other words, whether this period, which is admitted to expire ten days after the ascertain ment and liquidation of the duties as so stamped, begins at the date of the stamp, or at the earlier date of the collector's original decision upon the estimated rate and amount of duties.

The determination of this question will be aided by a brief consideration of the history of the law before the passage of the Act of 1864.

Under the earlier Acts of Congress, which contained no provision on this subject, an importer who had paid unauthorized duties, under protest, and in order to obtain possession of his goods, might recover them back from the collector in an action of assumpsit for money had and received. Elliott v. Swartwout, 35 U. S. 10 Pet. 137 [9: 373].

take away the importer's right to bring an action of assumpsit. 5 Stat. at L. 348; Cary v. Curtis, 44 U. S. 3 How. 236 [11: 576).

Then came the Act of February 26, 1845. c.

seasonable, saying: "When the collector had officially and in writing upon the entry ascertained and liquidated the duties upon the goods named in such entry at a certain rate of duty, a protest within ten days after such ascertainment and liquidation and an appeal within thirty days thereafter are good and valid as to time, although subsequently to the date of such ascertainment, liquidation, appeal and protest the collector revises the amount of such liquidation and makes a final ascertainment and liquidation at the same rate of duty. The first ascertainment and liquidation is in fact a final one as to rate. A protest and appeal within the statutory time after the final liquidation are also good and valid. The uniform practice in this port for many years, as to time of protest and appeal, in conformity with this rule, which practice has been sanctioned by all the officers of the government, is of much importance in the decision of this question."

Our conclusion also accords with decisions of state courts, expounding similar words in other statutes. Young v. The Orpheus, 119 Mass. 179; Atherton v. Corliss, 101 Mass. 40; Levert v. Read, 54 Ala. 529.

Some expressions of judges of this court, not having this point before them, might seem to support the opposite conclusion, especially the language of Chief Justice Waite, in Watt v. United States, 15 Blatchf. 29, decided July 1, 1878, and that of Mr. Justice Strong in Westray v. United States, 85 U. S. 18 Wall. 322 [21:763]. But in Watt's Case, the only question of time presented or considered related, not to giving the collector notice of dissatisfaction with his decision, but to taking an appeal to the Secretary of the Treasury; and the adjudication of the Chief Justice, that the collector's decision upon the rate and amount of duties, if not duly appealed from, was final and conclusive in a case where the duties had not been paid to obtain possession of the goods, but were sued for by the United States, was overruled, with his concurrence, in United States v. Schlesinger, 120 U. S. 109 [30: 607]. And in Westray's Case, the importer never gave any notice of dissatisfaction with the collector's decision, or took any appeal to the Secretary of the Treasury; and the only point adjudged was that the importer was not entitled to notice from the collector, of his decision, before being bound thereby or required to give a notice of dissatisfaction or take an appeal.

It was insisted by the Solicitor-General that "The views of the Department, legally expressed, so far as they appear in the record, recognize the true interpretation of the statutes to be that the protest must be filed after the final ascertainment and liquidation of the duties."

But the orders and circulars of the Treasury Department, given in evidence at the trial, either merely repeat the words of the Act of 1864, without giving them any construction, or else clearly show that, from the time of the passage of that Act until long after the entries now in question, the practical construction was to allow the notice of dissatisfaction to be given at any time after the collector's decision estimating the rate and amount of duty at the time of the entry of the goods, provided it w's not given after ten days from the final ascertain

ment and liquidation of the duties as stamped upon the entry.

The circular of the Treasury Department of September 30, 1878, and the opinion of the Attorney General to the Secretary of the Treasury of October 31, 1878 (16 Opinions of AttorneysGeneral, 197), requiring notices of dissatisfaction, under § 2931 of the Revised Statutes, to be filed after the final liquidation of the duties, were based on a misconception of the scope and effect of the decision in Watt's Case, above cited. The circular of the Treasury Department of July 8, 1879, re-established the practice which, as therein stated, had prevailed before that decision at the Port of New York "and all the other prominent ports of the United States, under which protests and appeals had been recognized, both by the customs officers and by this Department, as valid if filed at any time before the expiration of the time mentioned in the section of law cited." And the old practice appears to have been since constantly recognized and acted on until 1886, when the Treasury Department again undertook to establish the opposite rule.

Judgment reversed, and the case remanded to the Circuit Court with directions to set aside the verdict and order a new trial.

EDWARD H. REYNES, Surviving As signee, Appt.,

V.

FREDERIC DUMONT ET AL.

FREDERIC DUMONT ET AL., Appts.,

v.

CHARLES M. FRY, Trustee, ET AL.

(See S. C. Reporter's ed. 354-395.) Banker's lien-for particular debt-for general balance-presumption-acceptance, after de cree-remedy at law.

1. A general lien in favor of a bank or banker may be implied from the usage of the business, but it does not arise upon securities accidentally in the possession of the bank, or not in its possession in the course of its business as such, nor where the securities are in its hands under circumstances, or sistent with such general lien. where there is a particular mode of dealing, incon

2. Where securities are pledged to a banker for the payment of a particular loan or debt, he has no lien on the securities for a general balance or for the payment of other claims.

3. Bonds, not lodged in the hands of a banker in the ordinary course of banking business but for a specific purpose, and when that purpose was accomplished permitted to remain for safe keeping, are not subject to a banker's lien for the ultimate debit balance in favor of the banker against the parties who placed them there.

banker, that the securities or property of the cus4. The presumption, as between customer and tomer found in the possession of the banker have been left with him to secure him generally against loss, is a rebuttable presumption.

5. The acceptance, by appellants, of what was confessedly theirs, as the receiving of the remaining bonds and money after the liens decreed thereon were satisfied, is not an admission that the decree they seek to reverse was not erroneous, nor does it take away the jurisdiction of this court to review the decree.

the class over which a court of equity bas jurisdic 6. Where the subject matter of a suit belongs to tion; and the objection that the complainant has an

[355]

adequate remedy at law is not made until the hearing in the appellate tribunal, such objection is too [Nos. 174, 175.]

late.

Argued Jan. 23, 24, 1889. Decided April 8, 1889.

APPEALS from decrees of the Circuit Court
of the United States for the Southern Dis-
trict of New York, adjudging the amounts of
alleged liens upon bonds, and directing that so
much of the bonds as might be necessary to
pay the same should be sold. Reversed.
See 8. C. below, 18 Fed. Rep. 578.

Statement by Mr. Chief Justice Fuller: On the 14th of June, 1877, Frederic Dumont, August Henry Reine, and John David Moekel, who composed the firm of F. Dumont & Co., filed their bill in the Circuit Court of the United States for the Southern District of New York against Charles M. Fry, trustee of Schuchardt & Sons, bankrupts; François Laborde and E. H. Reynes, assignees of Charles Cavaroc & Son, bankrupts; the Louisiana National Bank of New Orleans, and N. W. Casey, receiver of the New Orleans National Banking Association, claiming to be the owners of two hundred and thirty-two bonds of the City of New Orleans, each for the amount of one thousand dollars, which had been in the possession of Schuchardt [356] & Sons and were then in the possession of Fry, their trustee in bankruptcy, who also held moneys received from the coupons attached to the said bonds; and by amendment set forth that the bonds were purchased by Cavaroc & Son with the money of Dumont & Co., for their joint account, but not in the name of Dumont & Co., nor in the joint names of Dumont & Co. and Cavaroc & Son; that Fry, trustee, refused to deliver up the bonds, and claimed to hold them as security for sums due him from Cavaroc & Son and Casey, as receiver; and that Fry is not entitled to hold the bonds. The bill prays that he be decreed to deliver them up, with the money received from the sale of coupons cut therefrom, and for further relief.

transactions in question, and correspondents and financial agents of Cavaroc & Son, who were engaged in the commission and banking business in the City of New Orleans. Charles Cavaroc, the senior member of the latter firm,

was at the same time president of the New Or leans National Banking Association, with which Schuchardt & Sons had similar business relations. Two hundred and seventy-five bonds of the City of New Orleans, a large part of them belonging to Dumont & Co., though it is not shown that Schuchardt & Sons had notice of this, were left by Cavaroc & Son with Schuchardt & Sons in September, 1870, the number having been subsequently reduced to two hundred and thirty-two.

The bonds were purchased in 1870, with the proceeds of drafts on Dumont & Co., to the amount of about a million francs, which had been renewed from time to time until after the failure of Cavaroc & Son, when Dumont & Co. paid them to the amount of 484,000 francs. Cavaroc & Son had negotiated drafts for 200, 000 francs on Dumont & Co., with Schuchardt & Sons, shortly before the failure, growing out of the original purchase of bonds, and these not having been paid were charged back to Cavaroc & Son by Schuchardt & Sons, thereby contributing to produce a debit balance of $7,454.22 on January 12, 1874, although protested drafts on Maxquelier Fils for $6,562.23 were also included.

These drafts for 200,000 francs had been accepted by Dumont & Co., and were protested, not for nonacceptance, but for nonpayment; and an action was commenced January 3, 1874, by Schuchardt & Sons against Dumont & Co. on their acceptances in the Supreme Court of New York, and an attachment levied on the bonds in question here, in the hands of Schuchardt & Sons. Satisfaction of recovery in this suit would more than pay the debit balance of Cavaroc & Son as finally stated in these proceedings.

March 5, 1884, a final decree was entered, adjudging the amounts due on account of the alleged liens respectively, and directing that so much of the said bonds as might be necessary to pay the same with interest, should be sold under the direction of the master. This was done, and Fry was paid the amount of said liens, and the balance was turned over to Dumont & Co. and Reynes, surviving assignee, Laborde having died pending the action.

The master's final report was confirmed February 11, 1885, and appeals were prosecuted by Dumont & Co. and Reynes, surviving assignee, to this court.

The following facts appear in evidence: Schuchardt & Sons were bankers at the City of New York during the period covered by the

Both the Cavarocs testify that the bonds were left with Schuchardt & Sons for safe keeping, Cavaroc, Jr., referring to a particular loan on them in the fall of 1870, which led to their being sent to New York, where they then remained on account of the heavy express charge, and the fact that New York was a better market in which to dispose of them; but Wells, a member of Schuchardt & Sons, testifies:

"On the 20th of September, 1870, we deposited with M. Morgan's Sons the above $275, 000 New Orleans bonds against a loan made by them of $200,000 to the Bank of New Orleans, and $110,000 to C. Cavaroc as part collateral for those loans. On the 21st December, 1870, M. Morgan's Sons returned us the above bonds against the payment of the two loans. On the 6th of March, 1871, we delivered $5,000 of the above bonds to Henry Beers by order of C.