Record and brief — Hiram Barney, Late Collector of The Port of New York, Plaintiff in Error, vs. E. A. Oelrichs, Herman C. Von Post, and Gustav Schwab
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SUPREME COURT OF THE UNITED STATES.
OcTOBER TERM, 1890.
j No. 177.
J HIRAM BARNEY, LATE COLLECTOR OF THE PORT OF
NEW YORK, PLAINTIFF IN ERROR,
VS.
EK. A. OELRICHS, HERM
AN: C. VON POST, AND GUSTAV
SCHWAB. _
IN ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE
4 SOUTHERN DISTRICT OF NEW YORK.
FILED OCTOBER 11, 1887.
SUPREME COURT OF THE UNITED STATES.
OCTOBER TERM, 1890.
No. 177.
HIRAM BARNEY, LATE COLLECTOR OF THE PORT OF
NEW YORK, PLAINTIFF IN ERROR,
VS.
E. Az OELRICHS, HERMAN .C. VON POST, AND GUSTAV
SCHWAB. :
IN ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE
SOUTHERN DISTRICT OF NEW YORK.
Original. Print.
Summons
Notice of appearance
Certiorari
os inidiphivcth dannad aint eee Reem dus deb dike eaeene xmegge ;
Order of reference to John I. Davenport
Affidavit of George Bliss ..............---..---.---------
Stipulation for reference
Order of reference to Joseph M. Deuel .............-....-
Order amending order of reference
Stipulation as to evidence................
Report of referee
Order confirming report of referee..............---. ---------
POA tno <n ces Wd adh dccend cacdctGen th ISMN Ads DUE Rees tees
Bill of exceptions
Order of reference to John I, Davenport..............
Order of reference to Joseph M. Deuel
Testimony of John V. Williams
COONAN WWM OS = =
‘ad & ee MR eS se ;
II INDEX.
Original.
Beene OE Jolt V. WilliGins iscsc ccdscsics ce cedsccectcsvecstcves 42
Letter Hiram Barney to Joseph M. Deuel, November 10, 1882........ 44
Testimony of Augustus Heydenreich .... .... ...... ..---. ..-20- woes 45
NE Bar Ns eked oe wescibn tame ctidece chee es tomses - 43
iy I oi cicen cdcecklnne veweds sone aueas 5:
Se NNT, cai bgi cic. dcwecide duet teauce duce cede ddes 63
eee SOON gg os ee db aden dua bimbsw cece code setes 67
Pea UNONE BG BOE. 5... cic coon ikcy cba keudnecds cove ccbpeee 73
I ik che dliewn pilewlewnusweawe 76
Defendant’s exceptions to referee’s report ........-....--.--.------0- 77
Opinion of Judge Wallace in Hennequin et al. v. Barney ......-...- 784
Order confirming referee’s report .... 2... 222-2. 222 cece ee oe coee cee 82
Testimony of I. Augustus Stanwood... .. 2... 22.2. cee cones R4
Plaintiffs’ Exhibit A, record in Supreme Court United States in Bar-
ney, late collector, v. Dale et al., No. 138, Oc-
Cr I BN ns as oi iki kd cawodetenns 96
ET NE ied eetabedcsbewaccccencocccetses 7
CE SR ig v.00 si Sade cobn <p open sees 97
RS Se ee eS sa iaiee Selalia 98
notice of appearance .. ...... .......--...---- 98
I wiki a ne Gk bikin sik dais k's Senc cunnene v
OND cia witstiweininc kwidstencne soccet chnes 99
iid inca’ poke tind inweccdbcakeene 101
a a aesededetabbbes bane shenekes« 101
I abkie Wee ibs hecrbsee cess cscs ccuwss 102
itn ed cnd waitin ckcGad bacees coonasiees 103
consent to order of reference ...........-...- 103
CERNE OE POONRORs kei cin civic cncs cece ccccces SE:
meen OF PRRNIOD oo 5c ok dns Ses Sdsewe sc ccds cscs 104
statement annexed to referee’s report ....-.. -- 105
exceptions to report of referee.........--.--- 113
order confirming report of referee.........--- 114
satisfaction of j —- iwattdédciiccsiat sect 114
BRON. ocnticcdncobecdnedsscuvnssosanstecbne 114
B, brief for plaintiff in error in Supreme Court
United States in Barney, late collector, v
Dale et al., No. 138, October term, 1881...... 116
" C, mandate of Supreme Court United States in
Barney, late collector, v. Dale et al.......... 116
D, letter of George Bliss, United States attor/
ney, to Secretary of Treasury, May 11,1874. 118
E, letter of George Bliss, United States attor-
ney, to Secretary of Treasury, June 4,1874. 121
a F, letter of Secretary of Treasury to Attorney-
General, June 10, 1874 ...... 2.2... .-000--e- 124
G, letter of Solicitor-General to Secretary of
Treasury, June 25, 1874 ...... 2... .e0-- eee 126
H, letter of Secretary of Treasury to George Bliss,
United States attorney, July 1,1874........ 129
stipulation as to validity of protests......... 130
I', affidavit of George Bliss................---.- 131
I, letter of Solicitor of Treasury to George Bliss,
United States attorney, May 11, 1875....... 132
BRE
‘xe e 222 re aoe SS ae eee, aS ee aS Fi i he Br tka gee, b FO ee ell
eA ict’ as aE eee Aa tone ries s. Seth. he yee -” Si 45 SH ay ;
ah een et PARKS Soak Dale 4 ee ASR CRO fae. SS ee Oe ae : a0) oa
= 5 = oe et ou ‘s ie 2 sag Fd ¥ cm ae = ee ee Es
INDEX,
3 Original.
Plaintiffs’ Exhibit I°, notice of motion from George Bliss to A. W.
Griswold, May 18, 1875..... ebe cadesepweis -- 133
I°, order denying motion, May 24, 1875 ........-. 135
K, letter of Assistant Secretary Treasury to col-
lector of customs, February 16, 1885 ....... - 136
L, letter of Assistant Secretary Treasury to A. W.
Griswold, February 16, 1885........... eccos IBZ
M, letter of Elihu Root, United States attorney,
to A. W. Griswold, November 11, 1884....... 138
N, letter of A. W. Griswold to Elihu Root, United
States attorney, November 12, 1884......... 139
O, letter of Acting Secretary of Treasury to col-
lector of customs, April 12, 1883............ 142
P, letter of A. W. Griswold to Elihu Root, United
States attorney, January 3, 1885...... scabs 143
Q, letter of Elihu Root, United States attorney,
to A. W. Griswold, January 6, 1885 ......... 144
R, letter of A. W. Griswold to Elihu Root, United
States attorney, January 17, 1885......... -- 145
list of cases containing fees ................. 146
S, letter of A. W. Griswold to Elihu Root, United
States attorney, January 20, 1885........... 148
T, letter of Elihu Root, United. States attorney,
to A. W. Griswold, January 23, 1885......... 149
_U, letter of A. W. ‘Griswold to Elibu Root, Janu-
ary 94, 1806 ove Gis cdcccc secede estes Necssese 150
V, letter of A. W. Griswold to Secretary of Treas-
ury, February 11, 1885.................. ..-- 151
Stipulation on bill of exceptions ..... Ut idvin usd wda<ckeedds wtueeere 152
Ansignubent of G2OGS bss sds 6osd Ssied Chics boss Sieese sees econ ccoscesses 153
POE TA CIO oka ccc 60 csSbiss int evib vag cs ded demii ecco cbiageeus 155
CN, bv ines cetensnvessdistendvsssdy tows RS Vie es cde dantesuaes 157
Proof of service Of Citation .. 2... 0.2... cone ccc cce cece cccens co cces coccee 158
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BARNEY, COLLECTOR, VS. OELRICHS ET AL. t
1 UNITED STATES OF AMERICA, 88.:
The President of the United States to the judges of the circuit court of
the United States for the southern district of New York greeting:
Because in the records and proceedings and also.in the rendition of the
judgment of a plea which is in the said circuit court before you between
E. A. Oelrichs, Herman C. Von Post, and Gustav Schwab, plaintifis,
and Hiram Barney, defendant, a manifest error hath happened, to the
great damage of the said Hiram Barney, as by his complaint appears.
We being willing that the error, if any hath been, should be duly cor-
rected, and full and speedy justice done to the party aforesaid in this
behalf, do command you, if judgment be therein given, that, under your
seal, distinctly and openly, you send the record and proceedings aforesaid,
with all things concerning the same, to the Supreme Court of the United
States, together with this writ, so that you may have the same at Wash-
ington on the second Monday of October, eighteen hundred and eighty-
seven, in the said Supreme Court, to be then and there held, that the
record and proceedings aforesaid being inspected, the said Supreme Court
may cause further to be done thereon to correct that error, what of right
and according to the laws and customs of the United States should be
done.
Witness the honorable Morrison R. Waite, Chief-Justice of the said Su-
preme Court, the 6th day of October, in the year of our Lord one
thousand eight hundred and eighty-seven. 3
, TIMOTHY GRIFFITH,
Clerk.
The foregoing writ is hereby allowed.
E. HENRY LACOMBE,
Circuit Judge.
2 UNITED STATES OF AMERICA,
Southern District of New York, ss.:
I, Timothy Griffith, clerk of the circuit court of the United States of
America for the southern district of New York, in the second circuit, by
virtue of the foregoing writ of error, and in obedience thereto, do hereby
certify that the following pages, numbered from three to one hundred and
fifty-eight, inclusive, contain a true and complete transcript of the records
and proceedings had in said court in the case of Hiram Barney, plaintiff
in error, against E. A. Oelrichs, Herman C. Von Post, and Gustav Schwab,
defendants in error, as the same remain of record.and on file in said office.
In testimony whereof I have caused the seal of the said court to be
hereunto affixed at the city of New York, in the southern district of New
York, in the second circuit, this tenth day of October, in the year of our
Lord one thousand eight hundred and eighty-seven, and of the Independ-
ence of the United States the one hundred and twelfth.
[SEAL. | TimoTHY GRIFFITH,
(Indorsed:) N. S. 399. U.S. Supreme Court. Hiram Barney,
plaintiff in error, against E. A. Oelrichs et al., defendants in error. Writ
1842 1
Ce Re eT Le et ee eT eee
Sa Se she
ARIE
BARNEY,. COLLECTOR, VS. OELRICHS ET AL.
of error. Due service of a copy of the within writ of error is hereby
admitted this 6th day of October, 1887. Almon W. Griswold, attorney
for defendants in error. United States circuit court. Filed Oct. 6,
1887. Timothy Griffith, clerk.
3 , N. Y. Superior Court.
E. A, OELRICHS, HERMAN C, VOUPOST AND ) Summons for money
Gustav Schwab. demand on contract.
agaist
HrraM BARNEY. J (Com. not ser.)
To the above-named defendant :
You are hereby summoned and required to answer the complaint in
this action, which will be filed in the office of the clerk of the superior
court of New York City, at the City Hall in said city, and.to serve a copy
of your answer to the said complaint on the subscriber, at his office, No.
20 Nassau st., in said city, within twenty days after the service of this sum-
mons on you, exclusive of the day of such service; and if you fail to an-
swer the said complaint within the time aforesaid, the plaintiffs in this
action will take judgment against you for the sum of two thousand dollars,
with interest from the eighth day of April, one thousand eight hundred
and sixty-one, besides the costs of this action.
A. W. GRISWOLD,
Plaintiffs’ Att'y, 20 Nassau St.
Dated New York, March 27, 1868.
4 (Endorsed :) New York superior court. E. A. Oelriclis et. al.
against Hiram Barney. Summons. A. W. Griswold, pl’ffs’ att’y,
New York. 186. Due service of a copy of the within is hereby ac-
knowledged. Served April 16, 68. OD.
3) New York superior court.
-Hrram BARNEY
ads. + Notice of appearance.
E. A. OELRICHS ET AL.
Str: You will please take notice that I am retained by and appear as
attorney for Hiram Barney, the defendant in this action, and demand
service of a bill of particulars of the plaintiffs’ claim herein, and a copy
of their complaint, upon me, at my office in the U.S. court buildings,
Nos. 41 and 43 Chambers street, in the city of New York.
Yours, &e,,
3 SAMUEL G. COURTNEY,
Attorney for Defendant.
To A. W. GRISWOLD, Esq.,
Plaintiffs’ Attorney.
_ (Endorsed:) Superior court. Hiram Barney ads. E. A. Oelrichs et al.
Notice of appearance. 8S. G. Courtney, defendant’s attorney. Due service
of a notice, of which the within is a copy, is nereby admitted. Dated
ret York, 186 . A. W. Griswold, esq. Rec’d Apr. 28, 1868.
A. H. 7
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BARNEY, COLLECTOR, VS. OELRICHS ET AL. —
6 The President of the United ‘States of America to the judges of
: the superior court of the city of New York, greeting:
We, for certain reasons, being desirous that our circuit court of the
United States for the southern district of New York, in the second circuit,
shall be certified of a certain cause commenced before you, against Hiram
Barney, defendant, by E. A. Oelrichs et al., plaintiffs, do therefore com-
mand you, that the record and proceedings in the said cause you distinctly
and openly send to the said circuit court, at the city of New York, on the
llth day of May, 1868, as fully and amply as the same are remaining
before you, by whatever names the said parties may be called therein,
together with this writ, that our said court may cause to be further done
thereupon what of right ought to be done.
Witness, Salmon P. Chase, esquire, Chief-Justice of the Suprame Court
of the United States, the 2nd day of May, in the year one thousand eight
hundred and sixty-eight.
[L. 8. ] KENNETH G. WHITE,
SAMUEL G. COURTNEY,
Defendant's Attorney.
(Endorsed:) U. 8S. circuit court. Hiram Barney ads. E. A. Oelrichs
etal. Copy. Certiorari. S. G. Courtney, defendant’s attorney :
7 Sir: Take notice that the within is a copy of a certiorari this day
issued out of the circuit court of the United States for the southern
district of New York. New York, May 2, 1868. Yours, &., D. 8.
Dickinson, defendant’s attorney. Due service of a copy of the within
and of the above notice is hereby admitted: New York, 186.
A. W. Griswold, esq., plaintiffs’ attorney. May 5, 1868. D.—
8 U. S. cireuit court.
E. A. OELRICHS ET AL.
vs.
HirRAM BARNEY.
Southern District of New York, ss:
The above-named plaintiffs come here into court, and by A. W. Gris-
wold, their attorney, suggest and give the court now here to understand
and be informed that heretofore, to wit, on the 16th day of April, 1868,
last past, an action was commenced in the superior court of the city of
New York, according to the laws of the State of New York, and the rules
and practice of said court in such case made and provided, in favor and in
the name of said plaintiffs against the defendant herein, upon and for the
same cause of action hereinafter set forth, and the summons therein was
filed in the clerk’s office of the said superior court. That the defendant
afterwards, by his attorney, duly appeared in said action, and such proceed-
ings were thereupon had that afterwards,and on the 5th day of May, in
the year of our Lord one thousand eight hundred and sixty-eight, the said
action was in due form of law removed by writ of certiorari for further
prosecution and trial into this court, according to the act of Congress in
BARNEY, COLLECTOR, VS. OELRICHS ET AL.
such case made and provided ; and the clerk of the said superior
9 court did hereupon return the said writ with the summons afore-
said,nd did file the same in this court, according to the course and
practice of this court which allegations and suggestions the defendant does
not deny, but admits the same to be true.
Wherefore, let the further proceedings and trial in this action against
the defendant be continued in this court.
And the plaintiffs accordingly, by their attorney aforesaid, complain of
the defendant herein in a plea of trespass on the case.
For that whereas the said defendant on the 16th day of April, one thou-
sand eight hundred and sixty-eight, at the city of New York, in the
southern district aforesaid, was indebted to the said plaintiffs in the sum
_ of two thousand dollars, lawful money of the United States ‘of America,
for money before that time lent and advanced by the said plaintiffs to the
said defendant and at the special instance and request of said defendant.
-And for other money by the said plaintiffs before that time paid, laid out,
and expended for the said defendant, and at the request of the said defend-
ant; and for other money by the said defendant before that time had and
received to and for the use of the said plaintiffs. And being so indebted,
the said defendant, in consideration thereof, afterwards, to wit, on the
same day and year, and at the place aforesaid, undertook, and then
10 and there faithfully promised the said plaintiffs well and truly to
pay unto the said plaintiffs the sum of money in this count men-
tioned, when the defendant should be thereunto afterwards requested.
And whereas, also, the said defendant afterwards, to wit, on the same day
and year, and at the place aforesaid, accounted, together with the said
plaintiffs of and concerning divers other sums of money before that
time due and owing from the said defendant to the said plaintiffs, and
then and there being in arrear and unpaid, and upon such accounting the
said defendant then and there was found to be in arrear and indebted to
the said plaintiffs in the further sum of two thousand dollars of lawful
money as aforesaid. And being so found in arrear and indebted to the
said plaintiffs, the said defendant in the consideration thereof, afterwards,
to wit, on the same day and year, and at the place aforesaid, undertook,
and then and there faithfully promised the said plaintiffs well and truly
to pay unto the said plaintiffs the said sum of money last mentioned, when
the said defendant should be thereunto afterwards requested.
Nevertheless the said defendant (although often requested, &c.) has not
yet paid the said several sums of money above mentioned, or any or either
of them, or any part thereof, to the said plaintiffs, but to pay the same, or
any part thereof, to the said plaintiffs the said defendant has hither-
1] to wholly refused, and still does refuse, to the damage of the said
plaintiffs of two thousand dollars, and thereof the plaintiffs bring
suit, dic. . >
A. W. GRISWOLD,
Attorney for plaintiffs.
(Endorsed :) U.S. circuit court. E. A. Oelrichs et al. vs. Hiram Bar-
ney. Declaration. A. W. Griswold, plaintiffs’ attorney: Please take
notice that on filing a declaration in this cause, with a copy whereof you
are hereby served, a rule has been entered in the Book of Common Rules ,
BARNEY, COLLECTOR, VS. OELRICHS ET AL. 5
kept in the office of the clerk of this court, at the city of New York, re-
quiring the within-named defendant to plead to said declaration in twenty
days after service of copy thereof and notice of said rule or judgment on
his attorney. New York, Nov. 4, 1869. A. W. Griswold, plaintiffs’
att’y. Service of copy of within and of the above notice is admitted.
Nov. 4, 1869. Edwards Pierrepont, deft. atty.
12 U. S. circuit court, southern district of New York.
ads
HrramM BARNEY
: | Phe
EK. A. OELRICHS ET AL.
And the said defendant, Hiram Barney, by Edwards Pierrepont, his
attorney, comes and defends the wrong and injury, when, &c., and says that
he did not undertake and promise in manner and form as the said plain-
tiffs in this suit have above thereof declared against the said defendant.
And for a further and other plea in this behalf the said defendant says
that the said supposed causes of action did “not, nor did any of them, ac-
crue to the said plaintiffs at any time within six years next before the
commencement of this suit, and this the said defendant is ready to verify,
and of these he puts himself upon the country, and the said plaintiffs do
the like, &e. :
EDWARDS PIERREPONT,
Defendant's Attorney.
To A. W. Griswo.Lp, Esq.
Plaintiffs’ Attorney.
(Endorsed :) U. S. circuit court. Hiram Barney ads. E. A.
13 Oelrich et al. Plea. Edwards Pierrepont, attorney for defend-
ant: You will please take notice that the plea of the defendant in
the above cause, of which the within is a copy, was this day filed in the
office of the clerk of the U.S. circuit court for the southern district of New
York. New York, Nov. 15, 1869. Yours, &., Edwards Pierrepont,
defendant’s attorney. To A. W. Griswold, plaintiffs’ attorney. Rec'd
Nov. 15, 69. A. H.
14 U. S. circuit court, southern district of New York.
E. A. OELRICHS ET wees
v8. Reply.
Hrram BARNEY.
And the said plaintiffs as to the plea of the said defendant by him
first above pleaded, and whereof he hath put himself upon the country,
do the like.
And the said plaintiffs, as to the plea of the said defendant by him
lastly above pleaded, say that the said plaintiffs, by reason of anything by
the said defendant in that plea alleged, ought not to be barred from hav-
ing and maintaining their aforesaid action thereof against the said defend-
ant, because they say that after the said several causes of action in the said
complaint mentioned had accrued to the said plaintiffs the said defendant
ee ai oe wo ~ - = :
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6 BARNEY, COLLECTOR, VS. OELRICHS ET AL.
departed from and resided out of this State for several successive periods,
amounting in the aggregate to twelve months, and this suit was brought
within six years and twelve months after the said several causes of action,
and each and every thereof accrued to these plaintiffs.
And this the said plaintiffs are ready to verify, wherefore they p’ay
judgment and their damages by them sustained to be adjusted, &.
A. W. GRISWOLD,
Plaintiffs’ Attorney. bh: Sok
15 (Endorsed :) U. S. circuit court. E. A. Oelrich et al. vs. Hiram
Barney. Reply. A. W. Griswold, plaintiffs’ attorney. Due ae
service of a copy of within reply is hereby admitted, dated November
30th, 1869. Edwards Pierrepont, defendant’s attorney. Copy of within
filed in clerk’s office, Jan’y 15,1870. A. H. E. P.
16 U. S. circuit court, southern district of New York.
E. A. O§EuLRicuws & AL.
v8. Rejoinder.
HrraM BARNEY.
And the said defendant, as to the said replication of the said plaintiffs
to the said second plea of the said defendant, says that the said plaintiffs
ought not by reason of anything by them in that replication alleged to
have or maintain their aforesaid action thereof .against him, the said de-
fendant, because he says that after the said several supposed causes of ac- a x
tion in the said complaint mentioned had accrued to the said plaintiffs, and y
before the commencement of this suit, he, the said defendant, did not de-
part from and reside out of this State for several successive perinds,
amounting in the aggregate to twelve months, in manner and form as the
said plaintiffs has above in their said replication in that behalf alleged.
And of this he, the said defendant, puts himself upon the country, and
the said plaintiffs do the like.
~
EDWARDS PIERREPONT,
Defendant's Attorney.
(Endorsed :) R. 2.35. U.S. circuit court, southern district of New
York. E.. A. Oelrichs & al, vs. Hiram Barney. Rejoinder. Edwards
Pierrepont, defendant’s attorney, to A. W. Griswold, ess., pl’ffs’ att’y :
You will please take notice that the rejoinder of the defendant in
17 the above cause, of which the within is a copy, was this day filed
in the office of the clerk of the U. S. circuit court for the southern
district of New York. New York, Jan. 31,1870. Yours, &c., Edwards
Pierrepont, def’t’s att’y.
~ Re eee at SER OTT Soe ee a peal '
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BARNEY, COLLECTOR, VS. OELRICHS ET AL.
18 Circuit court of the United States, southern district of New York.
F. Berly v. Augustus Schell.
Same v. Hiram Barney.
E. Blackburn et al. v. Same.
A. H. Hildick v. Same.
C. Le Boutillier et al. v. Same.
A. Rolker et al. v. Same.
F. Tomes et al. v. Same.
J. M. Pendleton v. Hiram Barney. :
T. B. Merrick et al v. Hiram Barney.
E. A. Oelrichs et al v. Same.
S. W. Waterbury et al. v. Same.
C. Angrave v. Augustus Schell.
Geo. F’. W. Bartels et al. v. Same.
George R. Sheldon v. Same. 4
Order of reference to John I.
Davenport, esq., Dec. 19, 1876.
And other causes.
19 Upon the orders heretofore made herein, referring these actions
to Edwards Pierrepont, esq., and upon reading and filing the affi-
davit of George Bliss, esq., and the stipulation on behalf of the respect-
ive parties to the above-entitled actions now pending in this court, to re-
cover duties alleged to have been illegally exacted upon charges and
commissions : ;
It appearing to the court that the assessment of the damages in each of,
the several causes will require the examination of long accounts, and of
numerous invoices, entries, and other documents and papers, and the tak-
ing of the testimony of various witnesses touching the same:
Now, on motion of George Bliss, esq., counsel for the said several de-
fendants, and Almon W. Griswold and E. Delafield Smith, esq., of coun-
sel for the said several plaintiffs, appearing and not objecting thereto,
It is ordered by the said court now here that the orders heretofore made,
referring the said several causes to Edwards Pierrepont, esq., be and they
are hereby vacated and set aside, and the said causes are hereby referred
to John I. Davenport, esq., as sole referee, to take proof of and ascertain
the claim of the plaintiff or plaintiffs.in each of the said several causes,
with interest, for excess of duties upon such charges and. commissions
which may be found to have been illegally exacted from plaintiffs,
20 and paid under protest to defendants, or | not barred by the stat-
ute of limitations, whenever the same has been pleaded, upon im-
portations at the port of New York, specified in the several bills of partic-
ulars served, or to be served in said several causes.
The said referee shall proceed to determine and adjust the claims of the
said several plaintiffs in accordance with the rules and decisions of this
court in similar cases, so far as the same shall be found applicable to the
said causes hereinabove named. And
It is further ordered, that said referee state and report the amounts as-
certained by him on said several commissions and charges separately, and
the facts found by him in respect thereto, and in respect to the protests
touching the same.
. or Ase
ae
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et aN aoe Pay . ia eee ee 5 oh ute ee 2
sisnar Gabe
BARNEY, COLLECTOR, VS. OELRICHS ET AL.
The said referee shall give notice to the attorneys of the respective par-
ties of the time and place of hearing therein, unless such notice shall be
waived by-.said attorneys, and either party may, on the hearing before said
referee, raise objections and exceptions, and the referee shall decide thereon,
and either party may bring such objections and exceptions to a hearing
before the court after the report of such referee, shall be filed, and for that
purpose may require the referee to report the evidence or testimony taken
in the case upon which the objection or exception arises, in such manner
as the court shall direct, and copies of the protests filed therein respect-
ively.
21 That said referee shall report in such cases with all convenient
dispatch ; and on the coming in of such report, and the decisions
of such exceptions as may be taken thereto by either party, either party
shall be at liberty to move for judgment or verdict for the amount as to
.- the court shall seem meet. And
It is further ordered, that the compensation of said referee shall be
determined by the court, after the coming in of his said reports, at such
amounts as shall appear to such court to be just and proper.
Dated December 19, 1876.
E. C. M.
A true copy.
(S’g’d.) Sam. BLATCHFORD.
JOSEPH M. DEUEL,
Clerk.
U. S. Cireuit Court.
F. BERLEY,
v.
AvuGusTUS SCHELL, AND 104 CASES
against late Collector of this Port.
yy ete
r) Pee ogg
SOUTHERN District oF NEw YORK, 3s:
22 George Bliss, being duly sworn, says, that these actions were
heretofore referred to the Hon. Edwards Pierrepont ; that on the
appuintment of Mr. Pierrepont, as Attorney-General, that gentleman
notified deponent that he could not further serve as such referee, and re-
quested that the order referring the cases to him might be vacated and the
same referred to some one = i that deponent promised to procure the
making of such an order ; that before he had time to carry out his promise
the Secretary of the Treasury stopped all proceedings in this class of
actions by directing that the questions involved should be presented to the
Supreme Court of the United States ; that within a few weeks this direc-
tion has been revoked, and deponent has been directed to proceed with
the disposition of this class of cases. To that end it is important that a
new referee in these cases should be appointed. |
ea! t+
aN
A€4/
(18 Mth et— weeny mee, ...
GEORGE BLISss.
. Sworn to before me, this 15th day of Dec., 1876.
7 J. M. DEUEL,
U. 8. Comm’r., D. of N. Y.
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BARNEY, COLLECTOR, VS. OELRICHS. ET AL.
UNITED States Crrovurr Court.
Southern District of New York:
It is stipulated and agreed that the order hereto annexed be exncehit by
and with the consent and direction of the court, in each of
23 above entitled causes (one hundred and five in all), and that, upon
the entry of such order, the said several causes stand referred to
John I. Davenport, esq., for the purposes and in the manner specified in
said order.
Dated Dec. 18th, 1876.
GEORGE BLIss,
U. 8. Attorney, Attorney for defendants in each
of said causes.
AutMoNn W. GRISWOLD,
Attorney for plaintiffs in certain of said causes.
E. DELAFIELD SMITH,
Attorney for plaintiffs in certain of said causes.
24 At a stated term of the circuit court of the United States of
America for the southern district of New York, in the second
district held at the United States court rooms, in the city of New York, on
the day of August, in the year of our Lord one thousand eight hundred
and eighty-two. Present: The honorable William J. Wallace, circuit judge.
In the matter of the adjustment of certain cases against collectors of cus-
toms, heretofore referred to John I. Davenport, esq., for adjustment.
On reading and filing plaintiffs’ notice of motion, dated August 5th, 1882
for the appointment of a referee in the place and stead of John I. Daven-
port, esq., in the cases referred to him, by two orders, made December 4th,
1874, entitled, respectively, B. H. Hutton, survivor, vs. Lucretia Bronson,
executrix, and other cases, and H. De Goer et al. vs. Augustus Schell,
and other cases; and also by order made December 19th, 1876, entitled
F. Berly vs. Augustus Schell, and other cases, in which A. W. Griswold,
esq., appears as attorney of record for the plaintiffs, and the case of
25 George F. W. Bartels, et al. vs. Augustus Schell, O. 8., 1623, ‘n
which Messrs. Marsh, Wilson & Wallis appear as attorneys sof record
for plaintiffs ; and the affidavit of A. W. Grisw old, esq., sworn to August
5th, 1882; and after hearing A. W. Griswold, esq., counsel for the plaintiffs,
and 8. L. Woodford, esq., United States attorney and attorney for the
defendants, upon said motion, it is
Ordered, That such of said cases as remain unadjusted and not dis-
continued, or not otherwise disposed of, be, and the same are hereby, to
stand referred to Joseph M. Deuel, esq., clerk of this court, in the place
and stead of John I. Davenport, esq., at the compensation of thirty-five
dollars for each and every case hereafter adjusted. by said referee, such
sum being agreed upon between the parties, but without prejudice to the
right of the defendants therein to move to have any of said cases restored to
the calendar for trial by jury should the court deem such restoration just
and proper.
Wm. J. WALLACE.
Buea bs ta as
BARNEY, COLLECTOR, VS. OELRICHS ET AL.
(Endorsed :) U.S. circuit court, southern district of New York. Inthe
matter of the adjustment of certain cases against collectors of customs,
heretofore referred to John I. Davenport, esq., for adjustment. Order. 8S.
L. Woodford, U. S. att’y. Filed in court, Aug. 10, 1882. Joseph M.
Deuel, clerk. (Seal.)
26 U. S. circuit court, southern district of New York. ia {
a ,
H. HENNEQUIN ET AL
v8. Is . 8. 396.
Hiram BaRnNeEy.
On reading and filing the defendant’s two notices of motion herein, : |
dated respectively September 29th and October 10th, 1882, and after i!
hearing Stewart L. Woodford, esq., U. S. attorney, represented by T. be
Greenwood, esq., and E. M. Moore, esq., in favor of said motion, and i
A. W. Griswold, esq., in opposition thereto, and due deliberation had,
it is
Ordered, That the three orders heretofore made by this court, two of
which on the 4th day of December, 1874, and the third on December
19th, 1876, by which this case and others were referred by John I. Dav-
enport, esq., as referee, to compute the amount due the plaintiffs for
excess of duty paid on charges and commissions, be amended by inserting
after the words “specified in the several bills of particulars served or to
be served in said several causes,” near the bottom of the second page of
said order, the following: “said referee to allow to the defendant
27 in such adjustment in each case, all payments or refunds, if any,
which may have been made to the plaintiffs, either voluntarily or
in prior suit, on account of excess of duties on charges or commissions,
or both.” And
It is further ordered, that in all other respects the motion herein is
denied.
Nov. 11, 1882.
Wm. J. WALLACE,
(A copy.)
ag Ss. | JOSEPH M, DEUEL, Clerk.
. E.R.
28 U.S. circuit court, southern district. of New York.
EpwWIN A. OELRICHS ET AL.
v8. : N. S. 399.
HIRAM BARNEY.
It is stipulated that the evidence taken and offered in the case of Henne-
quim vs. Barney, subject to the objections and rulings made to its admis-
sion concerning the statute of limitations, be considered as applying with
equal force to this case.
The above is a. copy of the stipulation made before the referee by coun-
sel for the respective parties on February 8th, 1883.
°
BARNEY, COLLECTOR, VS. OELRICHS ET AL.
29 U.S. circuit court, southern district of New York,
E. A. OELRICHS ET AL.
vs. N.S. 399.
HIRAM BARNEY.
To the court:
In obedience to the order of the court of August 10th, 1882, by which
this cause was referred to me to adjust the amount, if any, to "which the
plaintiffs are entitled, I herewith report that I have been attended by coun-
sel for the respective parties, and have taken and considered the testimony
and exhibits that have been offered. |
I find and report therefrom that, upon the importations specified in
plaintiffs’ bill of particulars, they are entitled to recover of the defendant
the sum of four hundred and six dollars and eighty-five cents, as and for
duties on charges and commissions upon such importations in excess of
the amount lawfully due thereon, and which said amount was illegally ex-
acted by the defendant from and paid by said plaintiffs under protest duly
made to the defendant in writing ; that in addition thereto the plaintiffs
are entitled to recover the sum of five hundred and ninety-two dollars and
forty-six cents, being the amount of interest on the various items.
30 constituting the rincipal sum, from the date of their res sah
payments to the date of this report, which said princi + ger an
est amount in the aggregate to the sum of nine hundred an octal
dollars and thirty-one cents.
A detailed statement of the amounts so paid, as aforesaid, to the defend-
ant was prepared by an officer of the custom-house, and proven before
me.
Certain requests as to findings were submitted in writing by counsel,
which are returned herewith with my action thereon noted.
All of which is respectfully submitted.
New York, October 3rd, 1884.
J. M. DEUEL,
Referee.
(Endorsed :) U.S. circuit court. So. dist. of New York. E. A. Oel-
richs et.al. vs. Hiram Barney. N.S. 399. Referee’s report.
31 U. S. circuit court, southern district of New York.
E. A. OELRICHS ET AL.
vs. N.S. 399.
HrraM BARNEY.
This cause coming on to be heard upon exceptions filed by defendant to-
the report of J. M. Deuel, esq., the referee, filed herein October 8th, 1884,
and after hearing Thomas Greenwood, esq., representing Elihu Root, esq. re
U. S. attorney, for defendant, and A. W. Griswold, esq., attorney for the
plaintiffs, and due deliberation had, it is
Ordered, That the defendant’s exceptions to the referee’s report be over-
ruled, and the said report be and fhe same is hereby confirmed.
Dated October 21, 1885.
Wm. J. WALLACE.
12 BARNEY, COLLECTOK, VS. OELRICHS ET AL.
(Endorsed :) Filed Oct. 24, 1885. Exd.T. Acopy. Timothy Grif-
‘fith, clerk.
(Endorsed :) N.S. 399. U.S. Circuit Court, southern dist. of New York.
E. A. Oelrichs et al vs. Hiram Barney. Order confirming ref-
-32 eree’s report. (Certified copy). A.W. Griswold, plffs’ atty. Serv-
ice of a copy admitted. Dated Nov. 2nd,1885. Wm. Dorsheimer,
‘U.S. attorney, atty. for deft.
33 At a stated term of the circuit court of the United States of Amer-
_ ea, for the southern district of New York, in the second circuit,
held at the United States court-rooms, in the city of New York, on
Monday the 18th day of January in the year of our Lord one thousand
eight hundred and eighty-six.
Present : The Honorable Hoyt H. Wheeler, sitting as circuit judge.
‘Epwin A. OELRICH, HERMAN C. Van Post,
and Gustav Schwab, N.S. 319
vs. ae . ee
HrraM BARNEY. J
Now come the plaintiffs by Almon W. Griswold, esq., their attorney,
and move the trial of this cause. Likewise comes the defendant by
“Thomas Greenwood, esq., asst. U. 8. atty., his attorney.
Thereupon a jury is empaneled, and the cause proceeds to trial.
After hearing the evidence of the parties and the argument of counsel,
the court directs the jury to find a verdict for the plaintiffs for the amount
of $289.12 for fees; and a verdict for the plaintiffs for the amount of
$1,076.74 on the referee’s report.
Thereupon the jury render a verdict whereby they find for the
34 plaintiffs in the amount of $289.12 for fees, and for the plaintiffs
in the amount of $1,076.74 on the referee’s report.
It is ordered, that a certificate of probable cause be entered herein, and
‘that the defendant have a stay of proceedings on said verdict for thirty
days.
And the said defendant, by the U. S. district attorney, his attorney,
comes and defends the wrong and injury, &c., and says, that he did not
undertake and promise in manner and form as the said plaintiffs have
above thereof declared against him, and of this he puts himself upon the
-country, &c. y
And the said plaintiffs and defendant having so stipulated in writing,
the court ordered the issue above joined as to duties overpaid by plaintiffs
on charges and commissions to be referred for trial to Joseph M. Deuel,
‘esq., as referee, and the said referee, upon due notice, having heard the
respective parties, made his report, filed in the office of the clerk of this
-court, on October 8th, 1884, by which he found in favor of the plaintiffs
for the sum of nine hundred and ninety-nine and 33, dollars, paid as and
for duties on charges and commissions, as of October 3rd, 1884.
And the issue above joined as to excess of fees overpaid by
35 plaintiffs is ordered by the said court, to be tried at a circuit court
appointed to be held at the U. 8. court building in the city of New
BARNEY, COLLECTOR, VS. OELRICHS ET AL. 13:
York, on the third Monday of October in the year one thousand eight:
hundred and eighty-five.
And now at this day, to wit, the 18th day of January, 1886, being as
yet of the said October term, 1885, before the said judge at the U.S.
court building in the said city of New York, came the said parties by
their attorneys aforesaid ; and the said circuit judge, before whom the said
issue was tried, has sent hither his record had before him in these words,
to wit: |
Afterwards, that is to say, on the day and at the place within contained,
before Hoyt H. Wheeler, esq., judge of the district court for the district
of Vermont, duly assigned to hold this court, came as well the within-
named plaintiffs as the said defendant, by their respective attorneys within.
mentioned ; and the jurors of the jury whereof mention is within made,,
being summoned also came, who, to speak the truth in the matters within
contained being chosen, tried, and sworn upon their oaths, and under the
direction of the court, did find for the plaintiffs in the sum of one thou-
sand and seventy-six and ;%4; dollars, as and for duties overpaid on charges.
and commissions.
And also under the direction of the court, the jury did find for the
plaintiffs in the sum of two hundred and eighty-nine and +7, dollars, as
and for fees overpaid.
36 And they accordingly assess the damages of the said plaintiffs.
by reason of the premises at the sum of thirteen hundred and.
sixty-five and ;%°, dollars, and interest, one hundred and thirty-four and
zig dollars, over and above their costs and charges by them about their
suit in this behalf expended, and for those costs and charges, the sum of
eighty-five and ,%% dollars. |
Therefore it is considered that the said plaintiffs recover against said
defendant their damages and interest aforesaid, by the jurors aforesaid, in:
form aforesaid, found, and also their costs and charges of increase by the
court, now here adjudged to the said plaintiffs with their assent, which:
said damages, interest, costs, and charges in the whole amount to fifteen
hundred and eighty-six and 744, dollars.
Judgment signed this eighth day of September, A. D. 1887.
TimMoTHyY GRIFFITH,
(Endorsed): N.S. 319. U.S. circuit court, southern district of New
York. E. A. Oelrichs etal., vs. Hiram Barney. Judgmentroll. A. W..
Griswold, plffs’ atty. U.S. circuit court, filed September 8, 1887, 12 m..
Timothy Griffith, clerk.
37 United States cireuit court, southern district of New York.
E. A. OELRICHS ET AL.
vs. Ls S. 399.
HrrRaAM BARNEY.
Defendant's bill of exceptions.
Afterwards, to wit, on the 19th day of December, 1876, at a stated term.
of this court, begun and.holden on the third Monday of October, 1876, the-
Honorable Samuel Blatchford sitting as a circuit judge, upon the consent.
country, &c.
12 BARNEY, COLLECTOK, VS. OELRICHS ET AL.
(Endorsed :) Filed Oct. 24, 1885. Exd.T. A copy. Timothy Grif-
fith, clerk.
(Endorsed :) N.S. 399. U.S. Circuit Court, southern dist. of New York.
E. A. Oelrichs et al vs. Hiram Barney. Order confirming ref-
-32 eree’s report. (Certified copy). A.W. Griswold, plffs’ atty. Serv-
ice of a copy admitted. Dated Nov. 2nd,1885. Wm. Dorsheimer,
‘U.S. attorney, atty. for deft.
33 At a stated term of the circuit court of the United States of Amer-
_ iea, for the southern district of New York, in the second circuit,
held at the United States court-rooms, in the city of New York, on
Monday the 18th day of January in the year of our Lord one thousand
eight hundred and eighty-six.
Present : The Honorable Hoyt H. Wheeler, sitting as circuit judge.
-Epwin A. OELRICH, HERMAN C. Van Post,
and Gustav Schwab, N.S. 319
v8. e ° te
Hiram BARNEY. J
Now come the plaintiffs by Almon W. Griswold, esq., their attorney,
and move the trial of this cause. Likewise comes the defendant by
“Thomas Greenwood, esq., asst. U. 8. atty., his attorney.
Thereupon a jury is empaneled, and the cause proceeds to trial.
After hearing the evidence of the parties and the argument of counsel,
the court directs the jury to find a verdict for the plaintiffs for the amount
of $289.12 for fees; and a verdict for the plaintiffs for the amount of
$1,076.74 on the referee’s report.
Thereupon the jury render a verdict whereby they find for the
34 plaintiffs in the amount of $289.12 for fees, and for the plaintiffs
in the amount of $1,076.74 on the referee’s report.
It is ordered, that a certificate of probable cause be entered herein, and
ithat the defendant have a stay of proceedings on said verdict for thirty
days.
aia the said defendant, by the U. S. district attorney, his attorney,
comes and defends the wrong and injury, &c., and says, that he did not
undertake and promise in manner and form as the said plaintiffs have
above thereof declared against him, and of this he puts himself upon the
And the said plaintiffs and defendant having so stipulated in writing,
the court ordered the issue above joined as to duties overpaid by plaintiffs
on charges and commissions to be referred for trial to Joseph M. Deuel,
‘esq., as referee, and the said referee, upon due notice, having heard the
respective parties, made his report, filed in the office of the clerk of this
-court, on October 8th, 1884, by which he found in favor of the plaintiffs
for the sum of nine hundred and ninety-nine and 83, dollars, paid as and
for duties on charges and commissions, as of October 3rd, 1884.
And the issue above joined as to excess of fees overpaid by
35 plaintiffs is ordered by the said court, to be tried at a circuit court
appointed to be held at the U.S. court building in the city of New
—F '
-
x
ad
BARNEY, COLLECTOR, VS. OELRICHS ET AL. 13-
York, on the third Monday of October in the year one thousand eight:
hundred and eighty-five.
And now at this day, to wit, the 18th day of January, 1886, being as
yet of the said October term, 1885, before the said judge at the U.S.
court building in the said city of New York, came the said parties by
their attorneys aforesaid ; and the said circuit judge, before whom the said
issue was tried, has sent hither his record had before him in these words,
to wit:
Afterwards, that is to say, on the day and at the place within contained,,.
before Hoyt H. Wheeler, esq., judge of the district court for the district
of Vermont, duly assigned to hold this court, came as well the within-
named plaintiffs as the said defendant, by their respective attorneys within.
mentioned ; and the jurors of the jury whereof mention is within made,,
being summoned also came, who, to speak the truth in the matters within
contained being chosen, tried, and sworn upon their oaths, and under the:
direction of the court, did find for the plaintiffs in the sum of one thou-
sand and seventy-six and ;%5, dollars, as and for duties overpaid on charges.
and commissions.
And also under the direction of the court, the jury did find for the
plaintiffs in the sum of two hundred and eighty-nine and 7%, dollars, as
and for fees overpaid.
36 And they accordingly assess the damages of the said plaintiffs.
by reason of the premises at the sum of thirteen hundred and.
sixty-five and ;8% dollars, and interest, one hundred and thirty-four and
zip dollars, over and above their costs and charges by them about their
suit in this behalf expended, and for those costs and charges, the sum of
eighty-five and ,%% dollars.
Therefore it is considered that the said plaintiffs recover against said
defendant their damages and interest aforesaid, by the jurors aforesaid, in;
form aforesaid, found, and also their costs and charges of increase by the
court, now here adjudged to the said plaintiffs with their assent, which:
said damages, interest, costs, and charges in the whole amount to fifteen
hundred and eighty-six and ;/4, dollars.
Judgment signed this eighth day of September, A. D. 1887.
TimoTHy GRIFFITH,
(Endorsed): N.S. 319. U.S. cireuit court, southern district of New
York. E. A. Oelrichs etal., vs. Hiram Barney. Judgmentroll. A. W..
Griswold, plffs’ atty. U.S. circuit court, filed September 8, 1887, 12 m..
Timothy Griffith, clerk.
37 United States cireuit court, southern district of New York.
E. A. OELRICHS ET AL.
vs. Ls S. 399.
HrrRaM BARNEY.
Defendant’s bill of exceptions.
Afterwards, to wit, on the 19th day of December, 1876, at a stated term.
of this court, begun and.holden on the third Monday of October, 1876, the-
Honorable Samuel Blatchford sitting as a circuit judge, upon the consent.
a
14 BARNEY, COLLECTOR, VS. OELRICHS ET AL.
of the attorneys for the respective parties to this action, made an order, of
which the following is a copy:
United States circuit court, southern district of New York.
E. A. OELRICHS ET al |
v8.
Hiram BARNey. j
38 Upon the orders heretofore made herein referring these actions
to Edwards Pierrepont, esq., and upon reading and filing the afh-
davit of George Bliss, esq., and the stipulation on behalf of the re-
spective purties to the above-entitled actions now pending in this court, to
reeover duties alleged to have been illegally exacted upon charges and com-
missions, it appearing to the court that the assessment of the damages in
each of the several causes will require the examination of long accounts
and of numerous invoices, entries, and other documents and papers, and the
taking of the testimony of various witnesses touching the same:
Now, on motion of George Bliss, esq., counsel for the several defend-
ants, and Almon W. Griswold and E. Delafield Smith, of counsel for the
said several plaintiffs, appearing and not objecting thereto,
Icis ordered by the said court now here that the orders heretofore made,’
referring the said several causes to Edwards Pierrepont, esq., be, and
they are hereby, vacated and set aside, and the said causes are hereby re-
ferred to John I. Davenport, esq., as sole referee, to take proofs of and
ascertain the claims of the plaintiff or plaintiffs in each of the said several
causes, with interest, for excess of duties upon such charges and commis-
sions which may be found to have been illegally exacted from plaintiffs
and paid under protest to defendants, and not barred by the statute of lim-
itations whenever the same has been pleaded upon importations at the port
of New York, specified in the several bills of particulars served,
39 or to be served, in said several causes. The said referee shall pro-
ceed to determine and adjust the claims of the said several plaintiffs
in accordance with the rules and decisions of this court in similar cases, so
far as the same shall be found applicable to the said causes hereinabove
named.
And it is further ordered that said referee state and report the amounts
ascertained by him on said several commissions and charges separately,
and the facts found by him in respect thereto, and in respect to the pro-
tests touching the same. The said referee shall give notice to the attor-
neys of the respective parties of the time and place of hearing therein,
unless such notice shall be waived by said attorneys, and either party may
on the hearing before said referee raise objections and exceptions, and the
referee shall decide thereon, and either party may bring such objections
and exceptions to a hearing before the court after the report of such referee
shall be filed, and for that purpose may require the referee to report the
evidence or testimony taken in the case upon which the objection or ex-
ception arises, in such manner as the court shall direct, and copies of the
protests filed therein respectively. That said referee shall report in such
cases with all convenient dispatch, and on the coming in of such report
and the decision of such exceptions as may be taken thereto by either party,
BARNEY, COLLECTOR, VS. OELRICHS E£T AL. 15
either party shall be at liberty to move for judgment or verdict for such
amount as to the court may seem just.
And it is further ordered that the compensation of said referee shall be
determined by the court after the coming in of his said reports
40 at such amount as shall appear to. such court to be just and proper
Dated December 19, 1876.
SAmM’L BLATCHFORD.”
Afterwards, to wit, on the 10th day of August, 1882, upon motion of
the plaintiffs at a stated term, of this court begun and holden on the first
Monday of April, 1882, the honorable William J. Wallace, circuit judge,
made an order, of which the following is a copy : |
““ At a stated term of the circuit court of the United States of America for
the southern district of New York, in the second district, held at the
United States court-rooms, in the city of New York, on the —— day of
August, in the year of our Lord one thousand eight hundred and eighty-
two. Present: The honorable William J. Wallace, circuit judge.
‘In the matter of the adjustment of certain cases against collectors of cus-
toms, heretofore referred to John I. Davenport, esq., for adjustment.
On reading and filing plaintiff’s notice of motion, dated August 5th,
1882, for the appointment of a referee in the place and stead of John I.
Davenport, esq., in the cases referred.to him, by two orders, made
41 December 4th, 1874, entitled respectively, B. H. Hutton, survivor,
vs. Lucretia Bronson, executrix, and other cases, and H. De Goer
et al. vs. Augustus Schell, and other cases ; and also by order made Decem-
ber 19th, 1876, entitled F. Berly vs. Augustus Schell, and other cases, in
which A. W. Griswold, esq., appears as attorney of record for the plaint-
iffs, and the case of George F. W. Bartels et al. vs. Augustus Schell, O.
S. 1623, in which Messrs. Marsh, Wilson & Wallis appear as attorneys
of record for the plaintiffs; and the affidavit of A. W. Griswold, esq.,
sworn tu August 5th, 1882; and after hearing A. W. Griswold, esq.,
counsel for the plaintiffs, and S. L. Woodford, esq., United States attorney
and attorney for the defendants upon said motion—
“It is ordered, that such of said cases as remain unadjusted and not dis-
continued, or not otherwise disposed of, be, and the same are hereby to
stand referred to Joseph M. Deuel, esq., clerk of this court, in the place
and stead of John I. Davenport, esq., at the compensation of thirty-five
dollars for each and every case hereafter adjusted by said referee, such sum
being agreed upon between the parties, but without prejudice to the right
of the defendants therein to move to have any of said cases restored to the
calendar for trial by jury, should the court deem such restoration just and
proper.
“Wma. J. WALLACE.”
42 Afterwards. to wit, on the 8th day of February, 1883, and the
8th day of July, and the 8th and 15th day of September, 1884, pur-
suant to the aforesaid orders, this cause came on for hearing before the
referee named in the last-mentioned order, the plaintiffs being represented
by their counsel and the defendant by his counsel ; and to maintain the
issues specified in said order on their behalf the plaintiffs produced testi-
eo Te Ss Pe eee ‘ = So ee > Vee eens
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ms a
16 BARNEY, COLLECTOR, VS. OELRICHS ET AL.
mony tending to show that from about January 23, 1861, to about Sep-
tember 8, 1864, they imported from certain foreign countries into the United
States, at the port of New York, certain merchandise.
That the said defendant, as collector of customs at said port, exacted cer-
tain duties upon the costs or charges of transportation of said merchandise
from the interior of the countries in which the same was purchased by the
plaintiffs to the vessels which brought the same to the United States, and
upon certain commissions above the usual rate claimed by the plaintiffs in
the case of the same. |
That pursuant to the act of February 26, 1845 (5 U.S. Statutes at Large,
p. 727, chap. 22), plaintiffs duly protested against the exaction of the afore-
said duty.
Plaintiffs then produced as a witness in their behalf, John V. Williams,
who, being duly sworn, testified that he was and for thirteen years past
3 had been a clerk in the custom-house in the city of New York ;
43 that he had adjusted the amount of duties paid by the plaintiffs to
the defendant, as such collector, upon the aforesaid costs or charges
and commissions, and that the amount. of said duties so paid was $406.85,
and that the interest thereon from the respective dates of payment of said
duties to December 31, 1879, at seven per centum per annum, was $476.26,
amounting, with the aforesaid principal sum, to $883.10.
The witness on cross-examination testified: That of the aforesaid du-
ties the sum of $44.30 was paid prior to April 16, 1862, as follows:
The sum of $32.40 was paid May 2, 1861, in the case of merchandise
imported by the John Leslie, May 2, 1861; the sum of $0.60 was paid
May 17, 1861, in the case of merchandise imported by the Sea Vulture,
May 17,1861; the sum of $0.80 was paid September 19, 1861, in the
case of merchandise imported by the August, September 19, 1861; that
the sum of $3.00 was paid January 29, 1862, in the case of merchandise
by the Elizabeth D. Hart; and that the sum of $7.50 was paid March 15,
1862, in the case of merchandise imported by the Bremen, March 15,
1862. That the interest on the said sum of $44.30 from the respective
dates of payment thereof to December 31,1879, at seven per centum per
annum was $58.12, amounting, principal and interest, at the last-mentioned
date to the sum of $102:42.
Plaintiffs then offered in evidence a letter from the defendant, Hiram
Barney, to Joseph M. Deuel, the referee, bearing date of November 10th,
1882.
44 To the admission in evidence of this letter the defendant by his
counsel objected on the ground,
First. That it was immaterial, irrelevant, and incompetent.
Second. That it was not the best evidence and no attempts have been
shown to produce the defendant as a witness or to account for his absence ;
therefore that said letter was not competent evidence.
Third. That the letter showed on its face that the absences of the de-
fendant, Hiram Barney, were temporary, and that he did not at any time
since this action accrued reside out of the State of New York.
The referee overruled these objections, and to this ruling the defendant by
his counsel excepted ; which exception was duly noted and allowed.
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BARNEY, COLLECTOR, VS. OELRICHS ET AL. a7
This letter was thereupon admitted in evidence as an admission in writ-
ing of the defendant and the following is a copy thereof :
U.S. circuit court, southern district of New York.
E. A. OELRICHS ET AL.,
vs. N.S. 399.
HrrRaM BARNEY. |
JosEPH M. DEUEL, Esq., Referee, &c.:
Str: In regard to the sum of my absences from this State, from
45 the 10th day of April, 1861, to the 10th day of April, 1868,
I will state that my absences during the period mentioned were all
temporary, and, though frequent, were for short periods, varying from
one day to perhaps forty or fifty days. 3
There were very few, probably not more than two or three, as long as
forty days, and I should think not more than one as long as fifty days.
They consist mainly of brief visits to Washington during the first four
years, and of visits to Iowa and Wisconsin and South during the follow-
ing years.
[have no memoranda of these absences, at least no full memoranda, and
I could not ascertain so as to state positively the sum of them. I can
only estimate them, and this I do at an.average of two months a year.
New York, Nov. 10th, 1882. :
Respectfully, yours, |
HiraM BARNEY.
Signed J. M. D., ref.
The plaintiffs then produced as a witness in their behalf Augustus Hey-
denreich, who, being duly sworn, testified: That in 1866, 7, and 8, he
was in the employ of Almon W. Griswold ; that he prepared the summons
in this action, which he stated he then held in his hand, on March 27,
1868.
That in 1866 he had prepared a summons in this case and about forty
others against the same defendant; that he did not know what he did
with the summons prepared by him in 1866, but he presumed he tore
qit up.
46 , The witness was then asked the following question :
“Q. Did you make any efforts, and if so what efforts, to serve
said summons ?”
To this question the defendant, by his counsel, objected.
First. On the ground that the same was incompetent, irrelevant, and
immaterial. |
And, second, on the ground that the law of the State of New York in
force at such time, to suspend the running of the statute of limitations re-
quired the summons in the suit to be put in the hands of the sheriff or
other authorized officer, and that it did not appear that the witness was
‘such sheriff or other authorized officer.
Plaintiffs thereupon admitted that the witness was not at that time sher-
iff or coroner! that he held no office under the State, city, or county of
New York, except that of notary public.
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18 BARNEY, COLLECTOR, VS. OELRICHS ET AL.
These objéctions the referree overruled, and to this ruling the defend-
ant, by his counsel, excepted, which exception was duly noted and allowed.
The witness answered: That immediately after preparing this summons
in 1866 he endeavored to serve the defendant at his office, No. 111 Broad-
way, in this city (New York), but that he was informed that the defend-
ant was out of the State; that he went there a number of times to serve
him, but did not serve him till the fore part of 1868; that he carried a
batch of summonses in his pocket, and a Mr. Darrow carried a
47 batch in his pocket, each looking out for an opportunity to serve
Mr. Barney ; that Mr. Darrow seemed to have served the sum-
mons in this case. |
The witness then testified he could not state definitely how many times
between 1866 and 1868 he went to Mr. Barney’s office, 111 Broadway,
to serve the summons, but he knew it was a number of times; that he
remembered on one occasion he was informed that Mr. Barney would not
return for three or four months; and at other times he was told that he
would not return for some time, but he did not remember the length of
time; that he tore up the summons made by him in 1866, because he had
so frequently changed the date of it; that he thought it proper to prepare
new ones.
Witness Heydenreich on cross-examination testified : That he could not
state how many times during 1866, 1867, and 1868 he had endeavored
to serve the defendant with a summons inthis action. That he could not
state how many times he had made such endeavor in 1866; he knew he
went there several times. That he would not say that he had made such
endeavors six times in 1866. He did not think he had as often as that.
That he would hardly say that he had made such endeavors six times in
1867. That he would not say he had six times in January, February,
and March, of 1868; he had not as often as that. That he would state
that during the same period Mr. Darrow made attempts to serve Mr.
Barney when witness would not go; that he did not know of his own
knowledge that Mr. Darrow made this attempt only so far as Mr. Darrow
informed him. That Mr. Darrow had a batch of summonses in his
pocket and was trying to serve defendant. That between Mr. Dar-
48 row and witness there were over forty summonses against the de-
fendant to be served. The question was then put to him whether
he had endeavored to serve the defendant as many as four times in each
of the years 1866, 1867, and 1868. Witness answered that it was so long
ugo he could not answer further than he had. He kept no memoranda of
his attempts to serve him. That during these years he never made any
attempt to serve the defendant at any other place than at 111 Broadway,
in the city of, New York. That at the time he erased the date in the
summons as originally made out, and inserted from time to time new
dates, he was a boy and thought it necessary. That he never made any
attempt to serve the defendant prior to 1866 in this action.
The witness on redirect examination then testified: That between 1866
and 1868 he thought he went to Mr. Barney’s office to serve the summons
in this action at least uver a half a dozen times, perhaps more. That he
could not recollect whether these visits to Mr. Barney’s office were made the
latter part of this period or first part.
The plaintiffs then produced as witness in their behalf John C. Darrow,
BARNEY, COLLECTOR, VS. OELRICHS ET AL. 19
who, being duly sworn, testified: That he resided in Westchester County,
New York ; that Peekskill was his post-office address. That he was a
lawyer by profession. That in 1865, 1866, 1867, 1868, and 1869 he was
managing clerk in the office of the plaintiffs’ attorney in this action.
49 That he had charge or supervision of the commencement of
suits in that office during the time he was there. That he re-
membered the fact of the commencement of a batch of suits against Hiram
Barney. That hethought that there were from thirty to forty cases ; there
were a large number of cases. That he remembered distinctly that the
summonses were prepared for service before the statute of limitations com-
menced to run.
The witness was then asked the following question :
“Q. State if you remember whether you made any effort, and if so what
effort, to serve defendant Barney with summonses in these cases, and if so
when and what ?”
To this question the defendant’s counsel objected on the ground,
First. That the same was incompetent, immaterial and irrelevant.
Second. On the ground that it was not shown that the witness was a
sheriff or other officer.
These objections the referee overruled; to this ruling the defendant by
his counsel excepted, which exception was duly noted and allowed.
The witness then answered :
“ A. I do remember I caused summonses to be prepared in all those
cases. It was some time after the expiration of Mr. Barney’s term of
office ; my recollection is that it was either in 1866 or 1867 when these
summonses were prepared. I called at Mr. Barney’s office myself
50 for the purpose of serving him with copies of these summonses in
the years 1866 and 1867. I called repeatedly. I never found Mr.
Barney at his office; I was informed either by some of the clerks in the
office or somebody connected with the office, and upon one occasion by
Mr. William Allen Butler himself, that Mr? Barney was absent in the
Western States, to be absent some considerable length of time whether for
weeks or months I can not now recall.”
The defendant thereupon, by his counsel, moved to strike out that part
of the answer commencing with the words “I was informed” to and
including the words “I can not now recall,” on the ground that it is not
responsive and does not state facts, but it is hearsay.
This motion the referee denied. To this ruling the defendant, by his
counsel, excepted ; which exception was duly noted and allowed.
The witness then testified that the general run of the business of the
office and his duties as managing clerk and the care to serve before the
statute began to run were the only circumstances connected with the case
that fixed the time when he first tried to serve Mr. Barney. That he
might further state that the statute of limitation had been a serious ques-
tion in the office of plaintiffs’ attorney at that time and all along.
Witness was then asked the following question :
Q. Do you remember that the attempt to serve him was before or after
the statute began to run ?
51 To this question the defendant, by his counsel, objected on the
ground that the same was incompetent, irrelevant, and immaterial,
rain tae tat tits
20 BARNEY, COLLECTOR, VS. OELRICHS ET AL.
The referee overruled this objection. To this ruling the defendant, by
his counsel excepted ; which exception was duly noted and allowed.
The witness then answered :
“A. I do remember distinctly that it was before the statute began to
run.” :
The witness on being asked to look at the summons in this action and
to state if he knew who finally served Mr. Barney therein, testified : That
he found a memorandum endorsed on the summons “ Served April 16,
1868, ” with the letter ‘“ D ” which was in his handwriting. That from
that memorandum he was quite positive he served Mr. Barney at that
time. |
The witness Darrow on cross-examination testified: That he could not
recollect the precise number of times that he attempted to serve Mr.
Barney at his office with a summons in this action and other cases in 1866
and 1867; he had made no memoranda of such attempts. That from his
recollection he should say that he had made such attempts as many as a
half a dozen times in 1866. That he could not swear to the precise num-
ber of times ; that he had a distinct recollection of going a great many
times ; that he would not swear it was more than a half a dozen times.
That he could not swear to the number of times he had made such attempts
in 1867, and could only say he called repeatedly until he was finally
: served.
52 That in answer to the question as to the number of such attempts.
he had made in 1868, he must give the same answer; he could
not specify the time. That he had no recollection of goingto Mr. Barney’s
house to serve him with a-summons in this action and other cases in 1866,
1867, or 1868. That in 1866, 1867 or 1868, he was not a sheriff or other
officer of the city or county of New York.
The plaintiffs then offered in evidence the transcript of the record in
the case in the Supreme Court of the United States of Hiram Barney, late
collector of the poxt of New York, plaintiff in error, v. Thomas N. Dale
and others, defendant in error, being suit No. 138 on the Supreme Court
calendar for October term, 1881; and the brief of the Solicitor-General
filed in the clerk’s office of the Supreme Court October 13, 1881, and the
mandate of the Supreme Court of the United States in that case dated
October 31, 1882, for the purpose of showing that this exact question as
to the statute of limitations had been decided by the circuit court of the
United States; that a writ of error was taken to the Supreme Court by
this defendant, Barney, and that upon the motion of the Solicitor-General
the writ of error was dismissed.
To the admission in evidence of these papers the defendant, by his
counsel, objected on the ground,
First. That the same are irrelevant, immaterial, and incompetent.
Second. That the said transcript of such papers, and each of them, are
not in a case in which the parties thereto are parties in the action now
bx fore the referee.
53 Third. That from said papers it appears that the facts whatever
tliey were in the said case of Barney v. Dale are not set forth therein,
and were not before the circuit or Supreme Court or the Solicitor-General,
and could not therefore have been in any way passed upon by either of
them,
As
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BARNEY, COLLECTOR, V8. OELRICHS ET AL.
Fourth. That said question as to the statute of limitations was not
a er said case of Barney v. Dale by the Supreme Court or the Solicitor-
enerul.
Fifth. That it does not appear from said papers that: the facts proven,
if any, in said case of Barney v. Dale are the same as the facts in the
action now before the referee.
Sixth. Tnat the decision, if any, as shown by said papers is not a matter
“A of evidence but a matter of authority or argument for the consideration of
the court.
These objections the referee overruled, and to this ruling the defendant,
by his counsel, excepted, which exception was duly noted and allowed.
These papers were then admitted in evidence, and copies thereof are
hereto annexed and marked Exhibits A, B, and C.
The plaintiffs, for the purpose of showing the reasons for delay in the
prosecution of this action, produced as a witness Almon W. Griswold, .
who, being duly sworn, testified that this action was commenced April 16, \
1868, to recover excess of duties paid on charges and commissions and for :
excess of fees paid for oaths to entries and stamps on invoices, and orders
. from one department of the custom-house to another, as stated in
54 the plaintiffs’ bill of particulars therein, and was brought to issue
January 31, 1870. That on April 16, 1868, when this action was
commenced, there were 947 charges and commissions cases pending await-
ing adjustment ; 154 of these were in -verdicts, most of which stood re-
ferred to the collector of the port for adjustment. That the second trial
i of the case of Hutton against Schell in 1868, and the subsequent decisions
’ of the court in the cases of Greenleaf v. Schell (6 Blatch., 223) and Tomes a
v. Redfield (7 Blatch., 139) seemed to settle certain controverted questions a
which had a result in the adjustment of charges and commissions cases =
before the referee, and on December 29, 1870, verdicts were taken in 100
more cases in which suits were commenced in the years 1863, 1864, and
1865, and the verdicts were referred to the collector for adjustment. That
shortly after these verdicts were taken, in December, 1870, the Secretary
of the Treasury or the Solicitor of the Treasury proposed that charges and
commissions cases should be referred to Edwards Pierrepont, esq., who had
recently resigned the office of United States attorney for the southern
district of New York, and on April 22, 1871, 54 charges and commissions
cases were referred to him for adjustment including this action.
On June 21, 1871, seven more cases were referred to him, all of which
seven cases were commenced between 1863 and 1868. On April 19, 1872,
135 more cases were referred to him, all of which had been commenced
between 1862 and 1865, and on August 13, 1872, 37 more cases were re-
A Es ferred to him, all of which were commenced between 1859 and April,
1868. :
55 That Mr. Pierrepont having been appointed Attorney-General
of the United States in 1874 was unable to complete the adjustment
of all the cases reterred to him, leaving this and 104 other cases, which
were subsequently transferred to John I. Davenport, esq., as referee, on
December 19, 1876, on motion of George Bliss, esq., United States attor-
ney.
f On December 4, 1874, 86 cases were referred to Mr. Davenport to ad-
= just the amounts due the plaintiffs for duties overpaid on charges and com-
~
22 BARNEY, COLLECTOR, VS. OELRICHS ET AL.
missions only, leaving the other issues undisposed of, to wit, excess of fees
for oaths, stamps and for orders. On March 19, 1875, 368 more cases, all
commenced prior to June 1865, were referred to Mr. Davenport ; that
there were also pending in 1868 26 cases without verdicts or orders of
reference.
That this action, with the exception of that of Claflin against Barney,
was one of the last batch of suits commenced against the collector of cus-
_ toms for duties overpaid on charges and commissions and for fees. That
in the spring of 1874 the arrangement, which had been made between the
attorneys for the plaintiffs in these charges and commissions cases and the
Treasury Department that the cases were to be disposed of by reference,
was repudiated. ‘That the arrangement referred to by him was this: That
Mr. Pierrepont, as U. S. district attorney in 1869 and 1870, had raised
various questions in charges and commissions cases which were argued
before the court, including the questions involved in the cases before re-
ferred to of Greenleaf vy. Schell and Tomes v. Redfield, the de-
56 cision of which, in his judgment, seemed to settle the controverted
points ; and when he went out of office as United States attorney,
the Secretary of the Treasury, through the Solicitor of the Treasury, pro-
posed to the plaintiffs’ attorneys in the charges and commissions cases that
if they would consent to have the charges and commissions cases referred to
Judge Pierrepont as referee, to be adjusted upon the principa/and basis of the
decisions of the court, the Government would consent tosuch reference with a
view of disposing of all of the remaining charges and commissions cases, and
in compliance with that suggestion the cases heretofore specified by witness.
were referred to Mr. Pierrepont. But that in 1874, after Judge Pierre-
pont had gone into the Cabinet, a new set of officials in Washington
ignored this arrangement, and George Bliss, esq., U. S. attorney, wrote a
letter to the Secretary of the Treasury, dated May 11, 1874, a copy of
which said letter is hereto annexed and marked Exhibit D.
That on. June 4, 1874, Mr. Bliss wrote to the Secretary of the Treasury
a letter (a copy of which is hereto annexed and marked Exhibit E) speci-
fying the questions in charges and commissions cases which he desired to
have submitted to the Supreme Court of the United States ; that this letter
of Mr. Bliss on June 10, 1874, was referred by the Secretary of the Treas-
ury to the Attorney General for his opinion ; a copy of which is hereto
annexed, marked Exhibit F.
That on June 25, 1874, the Attorney-General made his report thereon ;
a copy of which is hereto annexed and marked Exhibit G.
57 That on July 1, 1874, the Secretary of the Treasury wrote a
letter to U. S. Attorney Bliss, proposing a compromise ; a copy of
which letter is hereto annexed and marked Exhibit H.
That under this compromise the two orders of reference of December 4,
1874, to John I. Davenport were made ; that on May 11, 1875, this com-
promise was repudiated by the Government by letter from the Solicitor
of the Treasury to the United States attorney, Bliss ; a copy of which let-
ter is hereto annexed and marked Exhibit I.
That on May 21, 1875, a motion was made to vacate all the orders of
reference under which cases had been referred to referees for adjustment,
which motion was denied as per order of May 24,1875; a copy of which
order and the motion papers upon which the same was based is hereto an-
nexed and marked Exhibits I,, I,, I,. F
PEE ees a
BARNEY, COLLECTOR, VS. OELRICHS ET AL.
That from the last-mentioned date of November 6, 1876, one and a
half years, only six charges and commissions cases were adjusted and paid.
That on December 19, 1876, this case, which had been referred to Judge
Pierrepont in 1871 and was unfinished by him, was referred to Mr. Dav-
enport. That from November, 1876, to March, 1877, the Government
went on paying, but on March, 1877, they again stopped and no cases
were adjusted or paid until 1878 or 1879. That in 1878 or 1879 the
Government, through General N. M. Curtis as special agent of the Treas-
ury Department, commenced adjusting and disposing of certain of the so-
called charges and commissions cases.
58 That the witness as attorney for the plaintiffs in this case made
personal application to General Curtis to adjust and settle this case.
That said Curtis proposed that witness as attorney for the plaintiffs in
various other cases should first discontinue certain other cases in which
the said Curtis claimed that plaintiffs therein could not recover for waut of
protest. That witness declined this proposition, and said Curtis stated that
the representatives of Mr. Douglas’ estate were willing to and had con-
sented to the discontinuance of a large number of cases as a condition for
the adjustment and payment of other cases which were conceded to be good, -
or properly protested cases, and that if witness would consent to the same
terms, and would discontinue a given number of cases, he would proceed
to adjust this action or any other of witnesses cases which he, Curtis, con-
sidered good.
That during the four years that General Curtis was stationed here, ac-
cording to witness’ best recollection, he adjusted one case only for any of
witnesses’ clients, to wit, the case of Marx against Barney.
That this action (of Oelrichs v. Barney) which had been first referred to
Pierrepont, in April, 1871,and subsequently to Mr. Davenport in 1876,
was transferred to the present referee on August 10, 1882, and has been
since pending before him. :
That for a year prior to August, 1882, witness, as plaintiffs’ attorney,
made repeated efforts to get Mr. Davenport to give notice of a
59 hearing in this action, but could not find or communicate with him ;
and the court finally referred this action to Mr. Deuel.
That the fees issue in this case was first tried in this court in the case of
Hutton v. Schell, in April, 1881, and again in November, 1881, in the
case of Recknagel vy. Schell ; and finally in Cochran v. Schell, on May 2,
1882, which latter case was affirmed by the Supreme Court in 1883.
This witness, on cross-examination, then testified that in the cases of
Hutton v. Schell, Greenleaf v. Schell, and Tomes v. Redfield, referred to
by him, the only question was that concerning duties on charges and com-
missions. That after issue was joined in this action (Oelrichs v. Barney),
on January 31, 1870, he served notice of trial for the October term of this
court for 1870, and he believed this action was on the calendar of the court,
as it was his custom to cause the cases to go on the calendar whenever he
had noticed them for trial.
That on April 22, 1871, this action was referred to Mr. Pierrepont, and
stood referred to him until December 19, 1876, when it was transferred to
Mr. Davenport as referee. That during the time that this action stood
referred to Mr. Pierrepont there were oy me number of cases referred to
him. That the labor of computation was required to be made by Treasury
24 BARNEY, COLLECTOR, US. OELRICHS ET AL.
instructions by clerks or employees in the custom-house, or persons ap-
roved by the Auditor, and all the force that witness was able to obtain or
induce the Auditor to assign to work on these cases was employed. That,
according to witness’ recollection, the adjustment of this action was
60 nearly or quite completed by Mr. Pierrepont before he was appointed
Attorney-General, but was not actually finished; and that witness
made special efforts to induce him to finish up this action, and three or
four other cases similarly situated, nearly completed ; but he was unable to
induce him to do it.
That there was another reason why no special effort was made tu have
this action transferred to another referee, and that was that the case of
Dale v. Barney, involving the same question of the statute of limitations
that is involved in this action, was not finally disposed of until October,
1876, and that there seemed no reason for hurrying or moving this action
until it was determined what disposition should be made of the Dale case.
That the cases referred to Mr. Pierrepont were never noticed for hear-
ing by the plaintiffs’ attorney ; that the referee in those cases gave notice
to counsel when he would go on with the cases; that he claimed that
right when the order of reference was made to him, without any request
of either party. That acccording to witness’ recollection this action and
several other cases were noticed by Judge Pierrepont, and this action nearly
completed when he (Pierrepont) went to Washington, and witness was
unable to induce him to complete it.
That witness would like to state here that there was another reason or
cause fur delay in adjusting the cases before Mr. Pierrepont,.viz: That
he went away to Europe in the early summer of 1872 or 1873, and was
gone nearly six months, during which time nothing could be.done in those
cases.
61 That during the time this action stood referred to Mr. Daven-
port witness did not remember that this action was moved or that
any particular effort was made to have the case adjusted until ‘the disposi-
tion of the case of Kaupe vs. Barney, which he thought was in 1881, be-
cause there were other cases, older issues, ahead of it; and from August,
1881, to August, 1882, he was unable to see or get an answer to any let-
ter addressed to Mr. Davenport, the referee. That he made repeated
efforts to see him; that he made repeated requests that he would notice
some of the cases referred to him for hearing, but that he could get no reply.
That he then applied to Judge Blatchford to know what he could do to
have another referee appointed in these cases. That Judge Blatchford
ugaesin’ he should get from Mr. Davenport a consent that another
refer e be appointed in his place. ‘hat he applied to Mr. Deuel to pro-
eure for him Mr. Davenport’s consent for the appointment of another
referee, and on August 10, 1882, another referee was appointed in Mr.
Davenport’s place. |
That during the time this action stood referred to Mr. Pierrepont the
witness did not make any application to the court to have a referee ap-
pointed in his place in this action, or to have the action in any other way
disposed of than he had testified. That he did have other cases referred
to Mr. Davenport in 1874. That the reason why he did not make any
particular move to have these cases that stood referred to Mr. Pierrepont
referred to Mr. Davenport, was because personally he was not anxious to
have the cases referred to Mr. Davenport.
(
¢
:
Ade
FE man, LSP aS a ATE Sila a
BARNEY, COLLECTOR, VS. OELRICHS ET AL.
62 That Mr. Bliss, United States attorney, was anxious that a num-
ber of cases should be referred to Mr. Davenport under the stipu-
lation agreed to with the Secretary of the Treasury of the date of July
1, 1874, and the orders heretofore mentioned of December 4, 1874, were
made ; and then witness did not care to move to take the cases from Mr.
Pierrepont for another reason, viz: That it was intimated that Mr. Pierre-
pont might not remain in the cabinet but a short time, and in case he
retired from the cabinet and returned to his practice witness expected to
go ou with the cases before him.
That during the time this action stood referred to Mr. Davenport he
did not remember of making but two applications to the court to have a
referee appointed in Mr. Davenport’s place in this case, or to have the case
in any other way disposed of prior to the application of 1882, or about
then. He made one application personally to Judge Blatchford to know
how to get rid of Mr. Davenport in this action, and another to st
Wallace, on which he made the order of August, 1882.
This witness then being asked if he had ever made any attempt to
bring to trial the fee issue in this case or any other case prior to the time
that issue was tried in 1881 in the case of Hutton v. Schell, testified :
That in that very case of Hutton v. Schell he took a whole batch of dep-
ositions in Boston upon that issue more than fifteen years ago. That the
depostions were returned to the clerk of this court and opened and
63 filed. That when that cause was reached for trial the depositions
could not be found, and the trial was postponed. That this was
fifteen years ago, he should think. That he should think that the trial
of that case was postponed two or three times on that ground. That he
did not remember of any other attempt to bring the fee issue to trial
other than he had mentioned until it was finally brought to trial in 1880
or 1881. That he did not want to go to trial without the depositions ;
that he could not take them over again, because two of the most impor-
tant witnesses had died meanwhile.
Plaintiffs then rested.
Counsel for the defendant then produced, as a witness in his behalf, the
defendant, Hiram Barney, who, being sworn, testified that he resided in
the city of New York, and had resided there for forty-nine years ten and
a half months, with the exception of about ten years, when he resided in
Brooklyn, in the State of New York, and that he had always had an office
in the city of New York; that he venisied’ in the city of New York in
1861, 1862, 1.63, 1864, 1865, 1866, 1867, 1868, 1869, and 1870; that
during any ‘of those years he did not reside in an y other place except Kings-
bridge, which is now in the city of New York; that he never voted else-
where than in the city of New York, except in the city of Brooklyn, from
1842 to 1852; that he thought in the year 1868 he was in the State of
Towa at the time of the election, and did not vote; that at the other elec-
tions occurring in each one of the years from 1861 to {870, inclusive,
64 he believed he had voted at Kingsbridge, now in the city of New
York, and if there was an election occurring at any time other than
the November election of 1868 he thought he voted at Kingsbridge ; that
he could not state exactly how long he was in Iowa at that time, but prob-
ably two or three weeks. He was theré on a matter of business.
26 BARNEY, COLLECTOR, VS. OELRICHS ET AL.
The witness, Barney, on cross-examination, testified : ;
That he thought he had signed several admissions in other cases like
his letter to the referee, dated Nov. 10th, 1882, and put in evidence by
plaintiffs in this action—the first one on November 17, 1871, addressed
to Edwards Pierrepont, referee ; that he did not want to correct any state-
ment made in that admission; that he would state that he had never re-
sided out of the present limits of the city of New York since he came
there, May 1, 1833, except when he resided in the adjoining city of
Brooklyn from 1842 to 1852; that by stating in his letter of admission
that he was absent from the State of New York for several successive
periods varying from one day to perhaps forty or fifty days, he meant he
was never absent from the city of New York, during the times referred to
in that letter, with the intention of remaining away, except for the tempo-
rary purposes of pleasure or for business; that he could not recollect so
as to be positive whether during his absence from New York at the times
specified in that letter, during the years 1866, 1867, and 1868, any one was
authorized to admit service upon a summons or capias upon him in cus-
tom-house suits, or to answer for him in respect of suits. against him in
_ such cases; but he thought there was an arrangement at one time,
65 but how long it continued or whether acted upon he could not say ;
that the auditor of customs of the law department in the custom-
house should receive those papers and forward them to the United States
attorney; that whether that arrangement was such as to preclude a service
personally on him he could not say, or whether it was so well known that
a claimant would be authorized to serve on anybody else he could not tell;
that he did not think there was any one in his law office authorized to
admit such service. |
That his residence during 1866, 1867, and 1868 was at Kingsbridge,
on the north side ; that he had a summer house there ; that in the winter
he generally lived at a hotel in the lower part of New York City ; that his
residence then was where it is now, in the twenty-fourth ward in the city
of New York—in the town of Yonkers at first, then Kingsbridge, in the
county of Westchester, and, by annexation afterwards, was included in
the city of New York-; and in 1865, 1866, and 1867 he voted at the
poll nearest his residence ; that there was but one absence from the State
of New York that he thought was over fifty days, and that he thought
was less than ninety days—that was in Iowa and Wisconsin.
The witness Barney, on redirect examination, testified: That he had
never requested or authorized any person appearing as attorney for him in
this action to waive or withdraw the defense of the statute of limitations
pleaded by him; that he had not any recollection of any conversation
about the statute of limitations until within a few days past with Mr.
Greenwood, or with any person representing the district attorney
66 respecting this suit ; that he had, on all occasions when he could
properly speak on the subject, requested and urged the district at-
torney to interpose and press the statute of limitations ; that he had never
requested him to withdraw such a defense ; that he had hoped to see the
end of these suits; that he had taken a great deal of pains to enforce this view
of the subject not only upon the district attorney, but upon the Solicitor of
the Treasury and upon the Secretaries of the Treasury, and that he had
never known or heard that the defense of the statute of limitations hed
been waived or withdrawn in this action.
WOES | Meni eve
jo
aiid
* ed
BARNEY, COLLECTOR, VS. OELRICHS ET AL. 27
Witness, Barney, on recross-examination, testified: That he had not
given any instructions to the district attorney as to the management of
this action at any time since he appeared for him therein, unless his gen-
eral instructions and requests to plead and insist upon the statute of lim-
itations might be considered such, and to obtain a certificate of probable
cause. That such instructions and requests had been given from time to
time as he had had opportunity in conversation, and that there might have
been letters. He could not say as to the latter. That since he retired
from the office of collector of customs he had given instructions and re-
quests of the character he had spoken of. He could not say how recently,
but he would say within two or three years. That he had continued to
give instructions on another point to the district attorney, and had writ-
ten him within a few days respecting certificate of probable cause.
That with the exception of the questions of statute of limitations
67 and certificate of probable cause he had not troubled the district
attorney about any cases pending against him as collector for a
return of duties pending in the United States court.
Both parties then rested.
The plaintiffs, by their counsel, then requested the referee to find the
following conclusions of fact ; and where the same are found by him they
are marked “ allowed,” and where not so found, “ not allowed,” &c.
Plaintiffs’ counsel requests the referee to find as conclusions of fact :
Ist. That this action was brought to recover excess of duties paid om
charges and commissions ; and also fees for oaths, stamps on invoices, and.
orders from one department of the custom-house to another, and was com-
menced by service of a summons on April 16th, 1868. Declaration filed,
Nov. 4th, 1869, which was followed by defendant’s plea, plaintiffs’ replica-
tion, and defendant’s rejoinder, and the cause was finally at issue in Febru-
ary, 1870. Allowed.
‘Plaintiffs’ counsel requests the referee to further find as conclusions of
fact in relation to the defense of the statute of limitations interposed by
defendant :
1. That ia 1873, there were pending in the U. S. cireuit court here:
about thirty-one suits in favor of different plaintiffs against Hiram Bar-
ney, late collector of customs, all brought by the same attorney and all in-
volving the same question of the statute of limitations, upon the same
state of facts and the same pleadings, and among those thir ty-one suits was
this of E. A. Oelrichs et al. vs. Hiram Barney. Allowed.
68 2. That in January, 1873, one of these cases, viz: Thomas N.
Dale et al., vs. Hiram Barney, was tried before Edwards Pierre-
pont, esq., to whom said cases had been referred, as referee. Allowed.
3. That on such trial the defense of the statute of limitations was in-
sisted on by George Bliss, esq., the U. S. attorney on behalf of the defend-
ant. Allowed.
4. That the referee in that case, after the evidence was in and arguments
closed, decided the question, and made his report in favor of the plaintiffs,
to which decision and report the defendant excepted. Allowed.
5. That in fourteen or fifteen other of these cases, tried before said
Pierrepont, as referee, about the same time, or shortly after the Dale case
was tried, reports in favor of the plaintiffs were made by said referee, the
same as in the Dale case, and these reports placed in the hands of George:
Pr on ke - Sha < ona > ee ee sien ~
Sor Re baa BY a Se oe tan 8
ete hs dete rt ee ie Sapites 4
. SCT er .< a d
y ry
‘28. BARNEY, COLLECTOR, VS. OELRICHS ET AL.
Bliss, esq., U. S. district attorney and attorney for the defendant, to be
retained by him until final decision should be made in the case of Dale vs.
Barney. Allowed.
6. That the exceptions in Dale vs. Barney were argued in the U.S.
circuit court before Judge Blatchford, who, on April 28, 1875, overruled
them and confirmed the decision and report of the referee. But judgment
was not entered up until Oct. 5th, 1876. Allowed.
12. That the only apparent issue presented to the Supreme Court by
the record of said case, and by the Solicitor-General’s brief filed in the
case Oct. 13, 1881. was that of the statute of limitations.
‘69 . 13. That it appears by the mandate of the court, that said
Supreme Court dismissed said writ of error on Oct. 27th, 1881,
upon the motion of the Solicitor-General of the U.S. Allowed.
14, That in relation to the question of the statute of limitations, as they
-appear from the evidence, the facts in this case are the same as in the
— aforesaid case of Dale vs. Barney and the same as in the case of Henne-
‘quin et al. vs. Barney, recently decided by the referee, and the pleadings
-are indentically the same in form. Allowed.
The plaintiffs request the referee to find as conclusions of law:
ist. That upon the facts and pleadings the defendant has not substan-
' tiated his defense of the statute of limitations as pleaded. Allowed. *
i pag,
3rd. That plaintiffs are entitled to recover the excess of duty paid on
‘charges and commissions, the principal as computed by and testified to by
John V. Williams, amounting to $406.,85,, according to a statement pre-
pared by him and put in evidence in this case, with interest thereon to the
date of the referee’s report. Allowed.
10 Plaintiffs’ request to find as to the question of laches under the
decision of Redfield et al. vs. Ystalyfera Iron Company.
Ist. Plaintiffs filed a note of issue and noticed the cause for trial for
October term, 1870 (again for April term,-1871, and again for October
term, 1871), and was referred to Edwards Pierrepont, esq., for adjustment
.as to duties on charges and commissions about April 22, 1871, and sub-
. sequently, on Dec. 19, 1876, was referred to John I. Davenport and sub-
sequently, on August 10, 1882, to Joseph M. Deuel.
(Allowed except as to words in parenthesis.)
2nd. That in the issue in this case as to duties on charges and commis-
sions is the youngest of such issues pending in this court, except one, viz,
Claflin et al. v. Barney ; that at the time this action was commenced, April
17th, 1868, there were nine hundred and forty-six (946) such actions
pending, which had been commenced between 1859 and 1868. Allowed.
8rd. The issug in this case of Oelrichs vs. Barney as to duty paid on
charges and commissions have been repeatedly tried, and in 154 of the
947 suits, pending when this action was commenced, verdicts had been
rendered for the plaintiffs and were then awaiting adjustment and payment.
Allowed.
4th. That new decisions touching such cases were had, which are re-
ported in the cases of Hutton vs. Schell, 6 Blatch., 48 ; Greenleaf.vs. same,
6 Blatch., 223; Tomes et al. vs, Redfield, 7 Blatch., 139. Allowed.
71 5th. That on. December 29th, 1870, the Government consented
to verdicts for excess of duty paid on charges and commissions in
BARNEY, COLLECTOR, VS. OELRICHS ET AL. 29°
100 cases in which suits had been commenced in the years 1863, ’64,.
’65. Allowed. |
6th. That shortly thereafter, pursuant to consent of the Treasury De--
partment and plaintiffs’ attorneys, charges and commissions cases were-
referred to Edwards Pierrepont as follows, viz:
Apl. 27, 1871, 54 cases, including this case, commenced between 1863-8..
June 21, we 7 6é ee 6é éé 6c
Apl. 19, 1872,135 “ sas sy 1862—5.
Aug. 13, “ 37 “ *i 5 1859-68.
233
Allowed.
7th. That Judge Pierrepont having been appointed Attorney-General.
of the United States in 1874 was unable to complete the adjustment of all.
these cases, but left 105 unadjusted, including this case, which were sub-
sequently referred to John I. Davenport, on the motion of George Bliss,.
esq., U.S. attorney. Allowed.
8th. On December 4th, 1874, 60 cases were referred to Davenport.
(Jn same day 26 other cases, were referred to Davenport to adjust the-
amount due the plaintiffs on charges and commissions.
And on January 19th, 1875, 368 more cases were referred to Mr..
Daveuport, which suits had-been commenced prior to June 1865 ;:
72 and on Dec. 18, 1876, 105 cases, including this previously referred.
to Pierrepont. Allowed.
9th. That in consequence of correspondence and negotiations between
the U.S. district attorney, George Bliss, the Secretary of the Treasury,.
and the Attorney-General and solicitor-general of the United States, and
claimant’s attorneys, touching the charges and commissions cases, between
May 11th and August Ist, 1874, a compromise or stipulation was entered.
into settling a basis on which it was agreed that these charges and commis-
sions cases should be adjusted. Allowed.
10th. That on May 11th, 1875, this compromise was repudiated by the-
Government, and on May 21, 1875, defendant’s attorney made a motion
to vacate all the orders of reference in these charges and commissions.
cases. Allowed.
11th. That from May, 1875, to November, 1876, a vear and a half.
only six charges and commissions cases were adjusted and paid. Allowed.
12th. That from November, 1876, to March, 1877, the Government
went on paying, but in March, 1877, they again stopped, and no cases.
were adjusted or paid till 1878 or 1879. Allowed.
13th. That in 1878 or 1879 the Government, through General N. M.
Curtis as special agent of the Treasury, commenced adjusting and dispos-
ing of such cases, and the plaintiff’s attorney applied to him to adjust and
settle this case, but he declined to do it except on condition that plaintiffs’
attorney would discontinue certain other actions in which he, Curtis,. '
claimed there could be no recovery for want of a protest. Allowed.
73 14th. That this case, which was first referred to Edwards Pierre-
pont in April, 1871, and transferred to Davenport in 1876, was.
transferred to the present referee on August 10, 1882. Allowed.
15th. That for fully a year prior to August, 1882, plaintiffs’ attorney
made effort to have the referee Davenport notice this case for a hearing,,
but without success. Allowed.
Poa Se ‘ ,
C > 3 - Lm oe es a
ee Ee ag Te sR
ee vars S55, 4 ¢
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30 BARNEY, COLLECTOR, VS. OELRICHS ET AL.
16th. The issue as to fees in this case was noticed for trial about 1868,
and was tried in the case of Hutton vs. Schell in 1881; Recknagel vs.
Same ; and Cochran vs. Same, in 1881 and ’82. Allowed.
17th. The plaintiffs request the referee to find as a conclusion of law
that by reason of all the facts in consideration with the decision of the
Supreme Court in the Ystalyfera case the plff’s are entitled to recover in-
terest upon any amount of princ’pal found due and recoverable in this
reference from the date of payment to the date of the report herein. Al-
lowed.
The defendant by his counsel requested the referee to make the follow-
ing findings; and where the same are found by him thev are marked
“allowed,” and where not found “ disallowed.”
The defendant in the above-entitled action requests the referee therein
to find as conclusions of fact :
Ist. That this action was commenced in the superior court of the City of
New York, April 16, 1868, to recover (besides other things), alleged ex-
cessive duties. exacted by the defendant therein as collector of customs at
the port of New York from the plaintiffs therein on certain charges and
on commissions above the usual rates on or in case of importations made
by them from a foreign country, or countries to the United States. Al-
lowed.
74 2d. That on or about May 11th, 1868, this action was duly cer-
tioraried into this court. Allowed.
3d. That Nov. 4th, 1869, plaintiffs filed and served a declaration in as-
sumpsit. Allowed.
4th. That the subsequent pleadings in addition to the general issue,
are,
(a) Plea. That the supposed several causes of action in said declara-
tion mentioned did not any of them accrue to the plaintiffs at any time
within six years next before the commencement of this suit. Allowed.
(b) Replication. That after said several causes had accrued “ defend-
ant departed from and resided out of this State for several successive
periods amounting in the aggregate to twelve months, and this suit was
brought within six years and twelve months after the said several causes
of action,and each thereof accrued to the plaintiffs.” Allowed.
(c) Rejoinder. That “before the commencement of this suit he, the
defendant, did not depart from and reside out of this State for several suc-
cessive periods, amounting in the aggregate tou twelve months, in manner,
and form, &c.,” concluding “ to the country.” Allowed.
dth. That at no time after said cause or causes of action had accrued
did defendant depart from and reside out of this State for any period or
periods whatsoever prior to the commencement of this action. Disal-
lowed.
75 6th. That various items of said alleged excessive duties sought
to be recovered in this action by the plaintiffs therein were each more
than six years prior to the commencement of this action paid by them to
the defendant as said collector on or in case of merchandise mentioned in
the following dated entries to the following amounts, and on the following
dates, viz :
1861, May 2, John Leslie, paid $32.40, May 2, 1861.
4s aia 17, Sea Vulture, “ ea. :. Bag
a
BARNEY, COLLECTOR, VS. OELRICHS ET AL. 31
1861, Sept. 19, August, paid $0.80, Sept. 19, 1861.
1862, Jan. 29, Elez.de Hart “ 3.00, Jan’y 29, 1862.
‘¢ March 15, Bremen, " 7.50, March15, “
Allowed.
7th. That the plaintiffs did not prosecute or attempt to prosecute this
action until Februry 8th, 1883. Disallowed.
As conclusions of law:
lst. That the plaintiffs are not entitled to recover in this action any of
the said various items (or interest thereon) of the said alleged excessive
duties enacted on or in case of importations mentioned in the defendant’s
6th request to find as conclusions of fact herein. Disallowed.
2nd. That the plaintiffs are not entitled to recover in this action any
interest whatever on any of the various items of the aforesaid alleged ex--
cessive duties sought to be recovered by them herein. Disallowed.
76 Afterwards, to-wit, on the 3d day of October, 1884, the ref-
eree made his report and filed the same Cctober 8, 1884, of which
the following is a copy :
U.S. circuit court, southern district of New York.
E. A. OELRICH ET AL.
USe N, S. 399,
HirRAM BARNEY wets
To the Court :
In obedience to the order of the court of August 10th, 1882, by which
this cause was referred to me, to adjust the amount, if any, to which the
plaintiffs are entitled, I herewith report that I have been attended by
counsel for the respective parties and have taken and considered the testi-
mony and exhibits that have been offered.
I find and report therefrom that, upon the importations specified in
plaintiffs’ bill of particulars, they are entitled to recover of the defendant
the sum of four hundred and six dollars and eighty-five cents, as and for
duties on charges and commission upon such importations in excess of the
amount lawfully due thereon, and which said amount was illegally
77 exacted by the defendant from, and paid by said plaintiffs under
protest, duly made to the defendant in writing; that in addition
thereto the plaintiffs are entitled to recover the sum of five hundred and
ninety-two dollars and forty-six cents being the amount of interest on the
various items constituting the principal sum, from the date of their respect-
ive payments to the date of this report, which said principal and interest
amount in the aggregate to the sum of nine hundred ninety-nine dollars
and thirty-one cents.
A detailed statement of the amounts so paid as aforesaid to the defend-
ant was prepared by an officer of the custom-house and proven before me.
Certain requests as to findings were submitted in writing by counsel,
which are returned herewith with my action thereon noted.
All of which is respectfully submitted.
New York, October 3, 1884.
J. M. DEveEL, Referee.
32 BARNEY, COLLECTOR, VS. OELRICHS ET AL.
To this report of the referee, and to his findings and refusals to find,
the defendant by his counsel duly made and filed the following exceptions :
The defendant in the above-entitled action excepts:
1st. To each and every part of the referee’s report herein dated Oct.
3d, 1884.
2d. To the refusal of the referee to find as requested by the defendant
in his 5th and 7th requests to find as conclusions of fact.
78 3d. To the referee’s refusal to find as requested by the defendant
in his 1st and 2d requests to find as conclusions of law.
4th. To the referee’s findings as requested by the plaintiffs herein in
their Ist, 2d, 3d, 4th, 5th, 6th, 7th, 8th, 9th, 10th, 11th, 12th, 13th, and
14th requests to find as conclusions of fact in relation to the defense of
the statute of limitations interposed by defendant.
5th. To the referee’s finding as requested by the plaintiffs in their Ist,
2d, and 3d requests to find as conclusions of law as to the defense of the
statute of limitation.
6th. To the referee’s finding as requested by the plaintifts in their re-
quest to find as conclusions of law as to the recovery of interest.
| Exravu Root,
U.S. Atty. & Atty. for Deft.
784 The precise question involved in the case was presented to the
court upon the same pleadings and facts in the case of Hennequin
et al. vs. Barney, in which the court on July 27th, 1885, filed the follow-
Ing opinion :
United States circuit court, southern district of New York.
HENNEQUIN ET AL.
BARNEY.
WALLACE, J.:
Exceptions have been filed by both parties to the findings of the referee
to whom this action was referred under an order of the court upon the con-
sent of the parties.
The action was brought to recover alleged excessive duties on “ charges.
andcommissions ” exacted by the defendant, as collector of customs at the
port of New York, upon importation, made by the plaintiffs between March
21,1861, and June 30, 1864.
The action was commenced in a State court by the service of a sum-
mons on the defendant, April 16, 1868, and was thereupon removed to
this court. 7
_ The defendant pleaded (1) the general issue, and (2) the statute of limi-
tations. ‘The plaintiffs replied that defendant departed from and resided
out of the State for several successive periods, amounting in the aggregate
to twelve months, and that the suit was brought within six years and
79 twelve months after the cause of action accrued. Defendant re-
joined, denying that defendant departed from and resided out of the
State for several successive periods, amounting in the aggregate to twelve
months, etc., etc. It appears by the bill of particulars and the evidence
-—>
—
BARNEY, COLLECTOR, VS. OELRICHS ET AL. 33
that plaintiffs’ cause of action for the recovery of part of the duties in
controversy accrued more than six years prior to the commencement of
the action, but within six years and twelve months prior. The referee
has reported in favor of the plaintiffs as to these duties, and the first ques-
tion raised by the defendant’s exceptions to his report relates to the correct-
ness of this finding. As is conceded by counsel for both parties, the case
turns as to this point upon the construction and meaning of the State
statutes of limitation enacted in 1851, and being sections 91 and 100 of
the Code of Procedure of that year.
Section 91 provided that an action upon a contract, obligation, or lia-
bility, express or implied (except a judgment or decree, or a sealed instru-
ment), shouid be commenced within six years after the same had accrued.
Section 100 provided that if, when the cause of action accrued against
any person, he should be out of the State, the action might be commenced
after the return of such person, into the State; and if, after such cause of
action should have accrued, such person should depart from and reside
out of the State, the timé of his absence should not be deemed or taken as
any part of the time limited for the commencement of the action.
80 Under the last section it was well settled by the decisions of the
State courts that suceessive residences out of the State could be
accumulated.
The evidence shows that the defendant did depart from and remain out
of the State for several successive periods after some of the causes of ac-
tion for duties acerued, and before the conimencement of the suit, which,
taken together, amounted to the period of twelve months; that these ab-
sences were not a temporary departure, followed by an immediate return,
but that he was not absent with any intent to change his domicile, and
his domicile was, during these periods, at Kingsbridge, in this State.
The question is whether it was not incumbent upon the plaintiff to show
more than this, and whether, within section 100, a person resides out of
the State during the period when his domicile is within it.
It was held in Harnden vs. Palmer, 2 ed., Smith, 172, 175, that,
although the statute distinguishes between simply departing from and re-
siding out of the State, it was not intended to apply only tu cases when a
party has lost his legal residence here for ali purposes, and that the word
‘¢ reside,” as there used, means a material absence from the State, as con-
tradistinguished from a temporary departure followed by an immediate
return.
Whatever view might be reached if the question were an open one in
this court, its consideration is foreclosed by the decision of this court,
Blatchford, J., in Dale vs. Barney. No opinion was written in that case,
but the question was presented, as it is here, upon exceptions to a
81 referee’s report, and the referee has carefully considered it and
expressed his views at large.
The court apparently adopted the opinion of the referee. The facts, the
findings, and the exceptions were precisely those now before the court, and
the decision then made, holding that the defendant’s absences were to be
added to the six years, must be deemed controlling in the present case. It
is stated by counsel for the defendant that.the case of Kaupe vs. Barney
presented the same question and was decided by the same judge in a dif-
ferent way. This is not apparent from the record in that case, which has
1842——-3
34 BARNEY, COLLECTOR, VS. OELRICHS ET AL.
been handed’ up by counsel, and it would seem from the recitals of the
order entered in that case that the exceptions were only presented for a pro
forma disposition of the case. * * *
Afterwards, to wit, on the 21st day of October, 1885, the plaintiffs, by
their counsel, moved the court to overrule the exceptions of the defendant
to the referee’s report in this case and to confirm the same; and the de-
fendant, by his ccunsel, moved the court to sustain his exceptions to said
report and to overrule the said report in so far as excepted thereto by
him.
Whereupon, on the. 21st day of October, 1885, the court made the fol-
lowing order, which was duly filed on October 24, 1885:
82 U.S. cireuit court, south. dist. of New York.
E. A. OQELRICHS ET AL. |
Us. ei 5. 399.
HrramM Barney.
This cause, coming on to be heard upon exceptious filed by defendant to
the report of J. M. Deuel, esq., the referee, filed herein October 8th, 1884,
and after hearing, Thomas Greenwood, esq., representing Elihu Root, esq.,
U. S. attorney, for the defendant, and A. W. Griswold, esq., attorney for
the plaintiffs, and due deliberation had, it is—
Ordered, that the defendant’s exceptions to the referee’s report be over-
ruled, and the said report be and the same is hereby confirmed.
Dated October 21, 1885.
Wma. J. WALLACE.
(Endorsed :) Filed Oct. 24,1885. A copy. Timothy Griffith, clerk.
[L. 8. ]
83 To this order and decision of the court embodied therein the de-
fendant by his counsel duly excepted so far as the same overruled
the defendant’s aforesaid exceptions to the rulings of the referee upon the
question of the statute of limitations raised by the pleadings and by de-
fendant’s requests to the referee to find as to such question; and also to
the referee’s rulings upon the question of the right of plaintiffs to recover
interest, which exception was duly noted and allowed.
And inasmuch as the exceptions, matters, and things aforesaid would
not otherwise appear by the record, I have settled, allowed, and signed
this bill of exceptions; and
It is ordered that the same be filed as a part of the record herein nunc
pro tuncas of October 24, 1885, with like force and effect as if the same
had been reduced to writing and filed before the entry of said order.
Witness my hand at the city of New York this 6th day of Sept., 1887.
Wa. J. WALLACE.
>
And afterwards, to wit, on the 18th day of January, 1886, at a stated
term of this court, begun ‘and holden on the third Monday of October,
1885, before the honorable Hoyt H. Wheeler, district judge of the United
States for the district of Vermont, duly assigned to hold this court, the
aforesaid issues so joined as between the parties aforesaid as by the record
>
BARNEY, COLLECTOR, VS. OELRICHS ET AL. 35
more fully appears, came on to be tried by a jury duly empannelled and
sworn for that purpose ; and the said plaintiffs being represented by Al-
mon W. Griswold, esq., and the said defendant by William Dorsheimer,
esq., United States attorney, and Thomas Greenwood, esq., assistant United
States attorney, and in the course of the trial said counsel for the
84 defendant did take and allege sundry exceptions to the rulings,
instructions, charge, and directions of the court and directions to
the jury as then and there prayed for by them, which exceptions are here-
inafter severally set forth.
To maintain the said issues upon their part the plaintiffs produced as
a witness in their behalf I. Augustus Stanwood, who, being duly sworn,
testified that he was a clerk in the auditor’s department of the custom-
house in the city of New York; that he was a refund clerk in the auditor’s
division of the said custom-house and had been since 1878. That
during the past two years he had made adjustment of excess or returns of
fees for oaths, stamps, and orders. That he could not tell how many such
adjustments he had made since the receipt by the collector of the letter
from the Secretary of the Treasury dated February 16, 18%5, but perhaps
fifty or seventy-five cases, possibly more. That the basis on which he
had adjusted these cases was that of a fee of twenty cents for each oath on
an entry of each importation made by the plaintiffs; a fee of twenty cents
for each stamp on each invoice, and in the case of consumption entries also
a fee of twenty cents for each delivery.order, there being accounted on such
entries one order for each invoice, but for warehouse entries instructions were
to allow where there was one invoice one order, where there are more than
one invoice half as many orders as there are invoices. That is the basis
upon which those cases have been made up.
The plaintiffs, by their counsel, then offered in evidence a letter from
the Secretary of the Treasury to the collector of customs, dated February
16, 1885.
85 To the admission in evidence of this letter the defendant, by his
counsel objected, on the ground that the same was incompetent,
irrelevant, and immaterial.
This objection the court overruled; to this ruling the defendant, by his
counsel, excepted which exception was duly noted and allowed.
This letter was thereupon admitted in evidence and is hereto annexed
and marked Exhibit K.
Plaintiffs, by their counsel, then offered in evidence a letter from the
Secretary of the Treasury addressed to Almon W. Griswold, dated Feb-
ruary 16, 1865.
To its admission in evidence the defendant, by his counsel, made the
same objection as just stated.
This objection the court overruled ; to this ruling the defendant, by his
counsel, excepted, which exception was duly noted and allowed.
. This letter was then admitted in evidence and is hereto annexed and
marked, Exhibit L.
86 The witness Stanwood was asked by counsel for plaintiffs the
following question :
Q. Have you adjusted this case on fees for oaths, stamps and
orders upon the basis prescribed by the Secretary of the Treasury in his
his letter of February 16, 1885 ?
36 BARNEY, COLLECTOR, VS. OELRICHS ET AL.
To this question the defendant by his counsel objected, on the ground
that the same was incompetent, irrelevant, and immaterial.
This objection the court overruled, to this ruling the defendant, by his
counsel, excepted ; which exception was duly noted and allowed.
The witness then answered.
“A. I have made an adjustment of such fees in this case; that is, in
the entries embraced in the bill of particulars without the considera-
tion of the question of the statute of limitations, and I have found
that amount of fees to be
The Court. He wanted to know if you had made the adjustment in
accordance with that letter.
A. Yes, sir; I have.
The counsel for the plaintiff then asked the witness the following ques-
tion :
Q. Now will you be kind enough to state to the court and jury the
amount of principal of such fees ?
To this question the defendant by his counsel objected, upon the
ground,
First. That the same was incompetent, immaterial, and irrelevant ;
and .
87 Second. That the plaintiffs have not proven that any fees have
been paid by them to the defendant as collector.
This objection the court overruled ; to this ruling the defendant, by his
counsel, excepted, which exception was duly noted and allowed.
“A. I find it to be $113.60.”
“Q. What is the amount of interest on that sum up to the present
time ?”
To this question the defendant, by his counsel, objected on the ground
that the same was incompetent, irrelevant, and immaterial.
This objection the court overruled ; to this ruling the defendant, by
his counsel, excepted, which exception was duly noted and allowed.
“A. Seven per cent. interest on the principal from the dates of payment
to December 31, 1879, $134.14; six per cent. interest from that time till
January 18, 1886, I haven’t computed ; I did not know it was required,
but it was about $41.00 ; I will make this computation exactly.”
Plaintiffs’ counsel then said, “If your honor will allow him, witness,
to state that hereafter, I will turn the witness over to the defendant.”
The defendant’s counsel then said, ‘I do not know that I have got
airything to ask this witness. There has been no proof that there has
been anything paid by these plaintiffs as the case now stands.”
88 Plaintiffs’ counsel then offered in evidence a letter from the
United States attorney to Almon W. Griswold, dated November
11, 1884.
To the admission in evidence of this letter the defendant, by his coun-
sel, objected, on the ground that the same was irrelevant, incompotent,
and immaterial.
This objection the court overruled. To this ruling the defendant, by
his counsel, objected, which exception was duly noted and allowed.
The letter was then admitted in evidence, a copy of which is hereto an-
nexed and marked Exhibit M.
BARNEY, COLLECTOR, VS. OELRICHS ET AL. 37
Plaintiffs, by their counsel, offered in evidence a letter from Almon W.
Griswe!d to United States attorney, dated November 12, 1884.
To the admission in evidence of this letter the defendant, by his coun-
sel, objected, on the ground that the same was irrelevant, incomptent, and
immaterial.
This objection the court overruled. To this ruling the defendant, by
his counsel, excepted, which exception was duly noted and allowed.
The letter was then admitted in evidence, a copy of which is hereto an-.
nexed, marked Exhibit N.
The plaintiffs, by their counsel, then offered in evidence a letter from
the Secretary of the Treasury to the collector of customs, dated April 12,
1883.
To the admission in evidence of this letter the defendant, by his coun-
sel, made the same objection as last stated.
This objection the court overruled. To this ruling the defendant, by
his counsel, excepted, which exception was duly noted and allowed.
89 This letter was then admitted in evidence, a copy of which is
| hereto annexed and marked Exhibit O.
Plaintiffs, by their counsel, then offered in evidence a letter from Almon
W. Griswold to the United States attorney, dated January 3, 1885.
To the admission in evidence of this letter the defendant, by his counsel,
made the same objection as last stated.
This objection the court overruled ; to-this ruling the defendant, by his
counsel excepted, which exception was duly noted and allowed.
This letter was then admitted in evidence, a copy of which is hereto
annexed and marked Exhibit P.
Plaintiffs, by their counsel, then offered in evidence a letter from the
United States attorney to Almon W. Griswold, dated January 6, 1885.
To the admission in evidence of this letter the defendant, by his counsel,
made the same objection as last stated.
This objection the court overruled; to this ruling the defendant ex-
cepted, which exception was duly noted and allowed.
This letter was then admitted in evidence, and is hereto annexed and
marked Exhibit Q.
Plaintiffs, by their counsel, then offered in evidence a letter from Almon
W. Griswold to the United States attorney, dated January 17, 1885.
90 To the admission in evidence of this letter the defendent by his
counsel made the same objection as last stated.
This objection the court overruled ; to this ruling the defendant, by his
counsel, excepted, which exception was duly noted and allowed. “This
letter was then admitted in evidence, a copy of which is hereto annexed
and marked Exhibit R.
The plaintiff, by their counsel, then offered in evidence a letter from
Almon W. Griswold to the United States attorney, dated January 29, 1885.
To the admission in evidence of this letter the defendant, by his coun-
sel, made the same objection as last stated.
This objection the court overruled ; to this ruling the defendant, by his
counsel, excepted, which exception was duly noted and allowed.
This letter was then admitted in evidence, a copy of which which is
hereto annexed and marked Exhibit 8.
Plaintiffs, by their counsel, then offered in evidence a letter from the
38 BARNEY, COLLECTOR, VS. OELRICHS ET AL.
a
United States attorney to Almon W. Griswold, dated January 23d, 1885.
To the admission in evidence of this letter the defendant, by his coun-
sel, made the same objection as last stated. |
This objection the court overruled; and to this ruling the defendant, by
his counsel excepted, which exception was duly noted and allowed.
The letter was then admitted in evidence, a copy of which is hereto an-
nexed and marked Exhibit T.
The plaintiffs, by their counsel, then offered in evidence a letter from
Almon W. Griswold to the United States attorney, dated January, 24,
1885.
91 To the admission in evidence of this letter the defendant, by his
counsel, made the same objection as last stated.
This objection the court overruled, to this ruling the defendant, by his
counsel excepted, which exception was duly noted and allowed.
This letter was then admitted in evidence ; a copy of which is hereto
annexed and marked Exhibit U.
The plaintiffs then recalled as a witness in their behalf, I. Augustus
Stanwood, who was asked the following question :
“Q. I will ask you to repeat what you have heretofore testified to as to
the amount of principal in this case for fees ? ”
To this question the defendant, by his counsel, objected, on the ground
that the same was incompetent, irrelevant, and immaterial.
This objection the court overruled ; to this ruling the defendant, by
his counsel, excepted; which exception was duly noted and allowed.
“A. I found the principal to be $113.60; seven per cent. interest
$134.14; six per cent. interest to January 18, 1886, $41.38, making
$289.12.”
Witness further testified that the interest on the amount found by the
referee in his afuresaid report on $999.31 from October 3, 1884, to the
present time was $77.43, making with said principal sum $1,076.74.
92 The plaintiffs then offered in evidence a letter from Almon W.
Griswold to the Secretary of the Treasury, dated February 11, 1885.
To the admissionin evidence of this letter the defendant, by his counsel,
objected, on the ground that the same was incompetent, immaterial, and
irrelevant.
Fhis objection the court overruled; to this ruling the defendant, by his
counsel, excepted; which exception was duly noted and allowed.
This letter was then admitted in evidence; a copy of which is hereto
annexed and marked Exhibit V.
The plaintiffs then rested.
The defendant, by his counsel, moved the court to direct the jury to find
a verdict in his favor as to the plaintiffs’ claim for fees,
First. On the ground that they had not proved that these fees were
paid by them to the defendant.
Second. That they have not proved facts sufficient to entitle them to
recover.
This motion the court denied, and to this ruling the defendant, by his
counsel, excepted ; which exception was duly noted and allowed.
The defendant, by his counsel, then moved the court to direct the jury
to find a verdict in his favor as to the issue of charges and commissions,
upon the ground that the plaintiffs had not proved facts sufficient to entitle.
them to recover. |
oe L- 2-70 ©. eee +
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’
BARNEY, COLLECTOR, VS. OELRICHS ET AL. 39
6
93 This motion the court denied, and to this ruling the defendant,
by his counsel, excepted ; which exception was duly noted and al-
lowed.
The defendant then produced as a witness in his behalf I. Augustus
Stanwood, who testified : That he had adjusted certain amount of princi-
pal for fees as claimed by the plaintiffs, as already testified to by him ;
that he never saw any of those fees paid by the plaintiffs, to anybody ;
that he did not know whether any of them had ever been paid, and that
if they had been paid he did not know when they were paid.
This witness on cross-examination testified : That he had been a referee
appointed by the court to adjust two fee cases some years ago; that he
thought these cases were the Hutton and the Recknagel and Cochran cases ;
that there was a good deal of evidence in the Cochran cases tending to show
the payment of fees in that case; that he remembered some of them; that
he had no doubt that the invoices and entries themselves in that case showed
the amount of fees paid for oaths and for stamps on invoices.
Both sides having rested the defendant by his counsel moved the court
to direct the jury to find a verdict in his favor as to the plaintiffs’ claim
for fees, on the ground—
First. That they had not proven that these fees had been paid.
Second. On the ground that they had not proven facts sutticient to en-
title them to recover.
This motion the court denied, and to this ruling the deleniiant:
94 by his counsel, excepted ; which exception was duly noted and al-
lowed.
The defendant, by his counsel, then moved the court to direct the jury
to find a verdict in his favor as to the issue of charges and commissions,
on the ground that the plaintiffs had not_ proven facts sufficient to entitle
them to recover.
This motion the court denied, and to this ruling the defendant, by his
counsel, excepted ; which exception was duly noted and allowed.
The Court. I think the Government is bound by the arrangement
which it made with the plaintiffs’ attorney. I think that this matter
should be adjusted, and that Mr. Stanwood has adjusted it according to
that arrangement and the plaintiffs are entitled to a verdict accordingly.
So, gentlemen, you may render a verdict for the plaintiffs for $289.12 for
fees, and $1,076.74 for excess of duties paid on charges and commissivns
on the report of the referee.
To the direction of the court to the jury to find a verdict for the plaint-
iffs as to charges and commissions, the defendant, by his counsel, excepted ;
which exception was duly noted and allowed.
To the direction of the court to the jury to find a verdict for the plaint-
iffs as to fees, the defendant, by his counsel, excepted ; which exception
was duly noted and allowed.
To the direction of the court to the jury in so far as it directed the jury
to find that the plaintiffs were entitled to recover any interest whatever,
the defendant, by his counsel, excepted ; which exception was duly noted
~ and allowed.
95 The jury thereupon found a verdict for the plaintiffs under the
direction of the court. And inasmuch as the exceptions, matters,
and things aforesaid would not otherwise appear by the record, I have
settled, allowed, and signed this bill of exceptions, and
pment ph bc cn taaapner an cigpentooainheteranoahen
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40 BARNEY, COLLECTOR, VS. OELRICHS ET AL.
e
It is ordered that the same be filed as a part of the record herein nunc
pro tunc as of Jany. 18, 1886, with like force and effect as if the same had
been reduced to writing ‘and filed before the cause was given to the jury.
Witness my hand, at the city of New York, this 18th day of August,
1887.
Hoyt H. WHEELER.
96 PLAINTIFFS’ EXHIBIT, A.
Supreme Court of the United States No. 138. Hiram Barney, late col-
lector of the port of New York, plaintiff in error, vs. Thomas N. Dale,
George Richmond, John R. Harris, and Joseph H. Brown. In error to
the circuit court of the United States for the southern district of New
York.
97 UNITED STATES OF AMERICA,88:
The President of the United States to the judgesof the circuit court
of the United States for the southern district of New Y ork, greeting :
Because in the records and proceedings and also in the rendition of the
judgment of a plea which is in the said circuit court before you, between
Thomas N. Dale, George Richmond, John R. Harris, & Joseph H. Brow n,
plaintiffs, and Hiram ‘Barney, defendant, a manifest error hath happened
to the great damage of the ; said Hiram Barney as by his complaint ap-
pears: We being willing that the error, if any hath been, should be duly
corrected and full and “speedy justice done to the party aforesaid in this
behalf,do command you, if judgment be therein given, that under your
seal, distinctly and openly, you send the record and proceedings aforesaid,
with all things concerning the same, to the Supreme Court of the United
States, together with this. writ, so that you may have the same at Wash-
ington on the second Monday of October, eighteen hundred and seventy-
eight, in the said Supreme Court, to be then and there held, that the rec-
ord and proceedings aforesaid being inspected the said Supreme Court
may cause further be done thereon to correct that error what of right
and according to the laws and customs of the United States should be
done.
Witness the honorable Morrison R. Waite, Chief-Justice of the said Su-
preme Court, the 31st day of July,in the year of our Lord one thousand
eight hundred and seventy-eight. |
[SEAL. ] JOHN I. DAVENPORT,
Clerk.
The foregoing writ is hereby allowed.
Samw’L BLATCHFORD.
(Indorsed:) A. 171. U.S. Supreme Court. Hiram Barney, plaintiff
in error, against Thomas N. Dale, George Richmond, John R. Harris, &
Joseph H. Brown, defendants inerror. Writ of error. Stewart L. Wood-
ford, att’y for pl’ffin error. U.S. circuit court. Filed Aug. 1, 1878.
John J. Davenport, clerk.
I hereby admit of a copy of the within.
ALMON W. GRISWOLD,
Atty. for Dez’ts in Error.
Ave. 1,’78.
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BARNEY, COLLECTOR, VS. OELRICHS ET AL. 4]
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UNITED STATES OF AMERICA,
Southern district of New York, ss :
I, John I. Davenport, clerk of the circuit court of the United States of
America for the southern district of New York, in the-second circuit, by
virtue of the foregoing writ of error and in obedience thereto, do hereby
certify that the foregoing pages, numbered from 3 to 51, inclusive, contain
a true and complete transcript of the record and proceedings had in said
court in the case of Hiram Barney, plaintiff in error,against Thomas N.
Dale, George Richmond, John R. Harris, and Joseph H. Brown, defendants
in error, as the same remain of record and on file in said office.
In testimony whereof I have caused the seal of said court to be hereunto
affixed at the city of New York, in the southern district of New York, in
the second circuit, this ninth day of October, in the year of our Lord one
thousand eight hundred and seventy-eight, and of the Independence of the
said United States the one hundred and third.
[SEAL. ] JOHN I. DAVENPORT,
Clerk.
98 Summons for a money demand on contraci.
N. Y. superior court.
Tuomas N. DALE, GEORGE RICHMOND, -JOHN )
R. Harris, & Joseph H. Brown
agaist
|
> Com not ser.
R '
HrrRAM BARNEY. )
To the above-named defendant :
You are hereby summoned and required to answer the complaint in
this action, which will be filed in the office of the clerk of the superior
court of New York City, at the city hall in said city, and to serve a copy
of your answer to the said complaint on the subscriber, at his office,
No. 20 Nassau st., in said city, within twenty days after the service of
this summons on you, exclusive of the day of such service; and if you
tail to answer the said complaint within the time aforesaid, the plaintiffs
in this action will take judgment against you for the sum of two thousand
dollars, with interest from the eighth day of April, one thousand eight
hundred and sixty-one, besides the costs of this action.
Dated New York, Jany. 2nd, 1868.
A. W. GRISWOLD,
Plaintiffs’ Attorney, 20 Nassau st.
(Endorsed :) New York superior court. Thos. N. Dale et al. against
Hiram Barney. Summons. A. W. Griswold, pl’ffs’ att’y, 20 Nassau st..
New York, , 1868.
Due service of a copy of the within is hereby acknowledged.
Served Dft Barney Feb’y 3, 1868.
A. H.
42 BARNEY, COLLECTOR, VS. OELRICHS ET AL.
Notice of appearance.
New York superior court.
HrrRaM BARNEY
ads.
THoomas N. DALE & AL.
Str: You will please take notice that I am retained by and appear as
attorney for Hiram Barney, the defendant in this action, and demand
service of a bill of particulars of the plaintiffs’ claim herein, and a copy
of their complaint, upon me at my office in the U. S. court buildings, Nos.
41 and 45 Chambers street, in the city of New York.
Yours, &e.,
| SAMUEL G. COURTNEY,
Attorney for Defendant.
To A. W. GRISWOLD, Esq.,
Plaintiffs’ Attorney.
(Endorsed :) Superior court. Hiram Barney ads. T. N. Dale & al.
Notice of appearance. S. G. Courtney, defendant’s attorney.
Due service of a notice, of which the within is a copy, is hereby ad-
mitted.
Dated New York, , 186 .
A. W. GRISWOLD.
Ree’d Feb’y 15, ’68.
A. H.
99 The President of the United States of America to the judges of
the superior court of the city of New York, greeting :
We, for certain reasons, being desirous that our circuit court of the
United States for the southern district of New York, in the second circuit,
shall be certified of a certain cause commenced before you against Hiram
Barney, defendant, by Thomas N. Dale & al., plaintiffs, do therefore com-
mand you that the record and proceedings in the said cause, you distinctly
and openly send to the said circuit court, at the city of New York, on the
24th day of February, 1868, as fully and amply as the same are remain-
ing before you by whatever names the said parties may be called therein,
together with this writ, that our said court may cause to be further done
thereupon what of right ought to be done.
Witness Salmon P. Chase, esquire, Chief Justice of the Supreme Court
of the United States, the 17th day of February, in the year one thousand
eight hundred and sixty-eight.
[SEAL. |] KENNETH G, WHITE, Clerk.
SAMUEL G. COURTNEY,
Defendant's Attorney.
(Endorsed :) U.S. circuit court. Hiram Barney, ads. T. N. Dale &al.
Copy certiorari. S. G. Courtney, defendant’s attorney.
he Air aes ;
Be tie ise
Pe teas Lew ae pe. 5 oe
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BARNEY, COLLECTOR, VS. OELRICHS ET AL. 43
Sir: Take notice that the within is a copy of a certiorari this day issued
out of the circuit court of the United States for the southern district of
New York. °
New York, Feb. 17, 1868.
Yours, &e.,
, S. G. CouRTNEY,
Defendant's Attorney.
Due service of a copy of the within and of the above notice is hereby
admitted.
New York, , 186.
A. W. GRISWOLD,
Plaintiffs’ Attorney.
Ree’d Feb’y 17, ’68.
A. Eis
U.S. circuit court.
vs.
THomas N. DALE ET AL.
Hrram BARNEY.
Sal
SOUTHERN District oF NEW YORK, sg.:
The above-named plaintiffs come here into court, and by A. W. Griswold,
their attorney, suggest and give the court now here to understand and be
informed that heretofore, to wit, on the 3d day of February, 1868, last
past, an action was commenced in the superior court of the city of New
York, according to the laws of the State of New York, and the rules and
practice of said court in such case made and provided, in favor and in the
name of the said plaintiffs against the dcfaitignt herein, upon and for the
same cause of action hereinafter set forth, and the summons therein was
filed in the clerk’s office of the said superior court; that the defendant
afterwards, by his attorney, duly appeared in said action and such pro-
ceedings were thereupon had that afterwards, and on the 24th day
100 = of February, in the year of our Lord one thousand eight hundred
and sixty-eight, the said action was in due form of law removed
by writ of certiorari for further prosecution and trial into this court, accord-
ing to the act of Congress in such case made and provided ; and the clerk
of the said superior court did thereupon return the said writ with the sum-
mons aforesaid, and did file the same in this court, according to the course
and practice of this court, which allegations and suggestions the defendant
does not deny, but admits the same to be true.
Wherefore, let the further proceedings and trial in this action against
the defendant be continued in this court.
And the plaintiffs accordingly, by their attorney aforesaid, complain of
the defendant herein in a plea of trespass on the case.
For that whereas the said defendant, on the 8th day of April, one thou-
sand eight hundred and sixty-one, at the city of New York, in the southern
district aforesaid, was indebted to the said plaintiffs in the sum of two
thousand dollars, lawful money of the United States of America, for money
before that time lent and advanced by the said plaintiffs to the said de-
OA AE Lt Nihal blab ee EN ca Dei ocr Tips ainsey
Le i RN AR ea i a etn mange manent
44 BARNEY, COLLECTOR, VS. OELRICHS ET AL.
fendant, and at the special instance and request of said defendant. And
for other money by the said plaintiffs before that time paid, laid out, and
expended for the said defendant, and at the request of the said defendant.
And for other money by the said defendant before that time had and re-
ceived to and for the use of the said plaintiffs. And being so indebted, the
said defendant, in consideration thereof, afterwards, to wit, on the same day
and year, and at the place aforesaid, undertook, and then and there faith-
fully promised the said plaintiffs well and truly to pay unto the said plaint-
iffs the said sum of money in this count mentioned, when the defendant
should be thereunto afterwards requested.
And whereas also the said defendant afterwards, to wit, on the same
day and year, and at the place aforesaid, accounted together with the said
plaintiff of and concerning divers other sums of money before that time
‘due and owing from the said defendant to the said plaintiffs, and then
and there being in arrear and unpaid, and upon ,such accounting the said
defendant then and there was found to be in arrear, and indebted to the
said plaintiffs in the further sum of two thousand dollars of lawft] money,
as aforesaid. And being so found in arrear and indebted to the said plaint-
iff, the said defendant, in the consideration thereof, afterwards, to wit, on
the same day and year, and at the place aforesaid, undertook, and then and
there faithfully promised the said plaintiffs well and truly to pay unto
the said plaintiffs the said sum of money last mentioned, when the said
defendant should be thereunto afterwards requested. Nevertheless, the
said defendant (although often requested, &e.) has not yet paid the said
several sums of money above mentioned, or any or either of them, or any
part thereof, to the said plaintiffs, but to pay the same orfany part thereof
to the said plaintiffs the said defendant has hitherto wholly refused,
and still does refuse, to the damage of the said plaintiffs two thousand
dollars, and thereof the plaintiffs bring suit, &c.
A. W. GRISWOLD,
Attorney for Plaintiffs.
(Endorsed :) U.S. circuit court. T. N. Dale et al. vs. Hiram Barney.
Declaration. A. W. Griswold, pl’ffs’ att’y.
Please take notice, that on filing a declaration in this cause, with a
copy whereof you are hereby served, a rule has been entered in the
book of common rules, kept in the office of the clerk of this court
101 at thecity of New York, requiring the within-named defendant
to plead to said declaration in twenty days after service of a copy
thereof and notice of said rule or judgment on his attorney.
New York, March 11th, 1868. ;
A. W. GRISWOLD,
PU ffs’ Att'y.
Service of a copy of within and of the above notice is admitted.
N. Y., March 14, 1868.
Sam’L G. CouRTNEY,
Dfts Att'y.
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BARNEY, COLLECTOR, VS. OELRICHS ET AL. 45
Plea.
United States circuit court, southern district of New York.
HrramM BARNEY
ads.
THomas N. DALE & AL.
And the said defendant, Hiram Barney, by Samuel G. Courtney, his
attorney, comes and defends the wrong and injury, when, &c., and says
that he did not undertake and promise in manner and form as the said
plaintiffs in this suit have above thereof declared against the said de-
fendant. And for a further and other plea in this behalf, the said de-
fendant says that the said supposed causes of action did not, nor did
any of them, accrue to the said plaintiffs at any time within six years
next before the commencement of this suit, and this the said defendant
is ready to verify, and of these he puts himself upon‘ the country, and
the said plaintiffs do the like, &e.
SAMUEL G. CoURTNEY,
| Defendant's Attorney.
To A. W. GRISWOLD, Esq.,
Plaintiffs’ Attorney.
(Endorsed :) U.S. cireuit court. Hiram Barney ads. Thomas N. Dale
& al. Plea. Samuel G. Courtney, attorney for defendant.
You will please take notice that the plea of the defendant in the above
cause, of which the within is a copy, was this day filed in the office of the
clerk of the U.S. circuit court for the southern district of New York.
New York, March 24th, 1868.
Yours, Ke., S. G. CouRTNEY,
7 Defendant's Attorney.
To , Esq.,
Plaintiffs’ Attorney.
Reply.
U.S. circuit court. southern district of New York.
Tuos. N. DALE ET AL.
Us.
Hrram BARNEY.
And the said plaintiff’, as to the plea of the said defendant by him.
first above pleaded, and whereof he hath put himself upon the country,
do the like.
And the said plaintiff’, as to the plea of the said defendant by him lastly
above pleaded, say that the said plaintiff’, by reason of anything
102 _ by the said defendant in that plea alleged, ought not to be barred
from having and maintaining their aforesaid action thereof against
the said defendant, because they say that after the said several causes of
action in the said complaint mentioned had accrued so the said plaintiff’,
the said defendant departed from and resided out of this State for several.
PRs ihe ep Ra kh > Na a TPP IY Eh iT BD ZIRE SRNR a I i a 1A tame ap (NS . . - '
_ my ae Sotanitacmeain’ ana ite eS ei eS ae EASE We re a” ie pent ts KI SPORES ak 475. ya ag Pee iss ; ee < Bie ind Bader Pt :
pea . . ; ad Nae eT ES fo! Be Shes Sot he pak SAY Ci, 6.
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46 BARNEY, COLLECTOR, VS. OELRICHS ET AL.
“a — Pe ee eT es aia 4 as
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successive periods, amounting in the aggregate to twelve months, and this
suit was brought within six years and twelve months after the said several
causes of action and each and every thereof accrued to these plaintiffs.
And this the said plaintiffs are ready to verify, wherefore they pray
judgment and their damages by them sustained to be adjusted, &c.
| A. W. GRISWOLD,
: Plaintiffs’ Attorney.
Thos. N. Dale et al. vs. Hi-
Reply. A. W. Griswold, plaintiffs’ attorney.
(Endorsed) : United States circuit court.
ram Barney.
You will please take notice that the reply of the plaintiffs to the plea
of the defendant in the above cause, of which the within is a copy, was
this day filed in the office of the clerk of the United States circuit court
for the southern district of New York.
New York, April 29, 1868.
Yours, &e., :
A. W. GRISWOLD,
Plaintiffs’ Attorney.
To S. G. CourTNEY,
Defendant's Attorney.
Rejoinder.
U.S. circuit court, southern district of New York.
Tuomas N. DALE & AL. }
v8.
HrraM BARNEY.
And the said defendant, as to the said replication of the said plaintiffs
to the said second plea of the said defendant, says that the said plaintiffs
ought not by reason of anything by them in that replication alleged to
have or maintain their aforesaid action thereof against him, the said de-
fendant, because he says that after the said several supposed causes of
action in the said complaint mentioned had accrued to the said plaintiffs,
and before the commencement of this suit, he, the said defendant, did not
depart from and reside out of this State for several successive periods,
amounting in the aggregate to twelve months, in manner and form as the
said plaintiffs have above in their said replication in that behalf alleged.
And of this he, the said defendant, puts himself upon the country, and the
said plaintiffs do the like.
EDWARDS PIERREPONT,
Defendant's Attorney.
(Endorsed :) U. 8S. circuit court, sourthern district of New York.
Thomas N. Dale & al. vs. Hiram Barney. Rejoinder. Edwards Pierre-
pont, defendant’s att’y.
To A. W. GRISWOLD, Esq.,
PU fs’ Atty:
You will please take notice that the rejoinder of the defendant in the
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BARNEY, COLLECTOR, VS. OELRICHS ET AL.
103 above cause, of which the within is a copy, was this day filed in the of-
fice of the clerk of the U.S. circuit court for the southern district
of New York.
New York, Jan. 31, 1870.
Yours, &e.,
EDWARDS PIERREPONT,
Deft’s Atty.
And the said parties having stipulated in writing to refer the issues to
the Hon. Edwards Pierrepont, as referee, and said referee having made
his report, filed December 8, 1874, in the office of the clerk of this court,
by which he found in favor of the plaintiffs for the sum of nine hundred
and thirty-nine & 74,5, dollars in gold & silver coin, paid as and for duties
as of January 27th, 1873, and the defendant having duly excepted to said
report, and such exceptions coming on to be heard before Hon. Samuel
Blatchford, district judge, he, on the 28th day of April, 1875, did over-
rule such exceptions and confirm said referee’s report, and directed judg-
ment in favor of the plaintiffs and against the defendant for the above
amount, as reported by the referee.
Therefore it is considered that the said plaintiffs recover against said
939 46 defendant their damages aforesaid, amounting to nine hundred
362 7 and thirty-nine & ;4& dollars in gold and silver coin, and their
$1,602 16 costs and charges now here adjudged, amounting to three hundred
and sixty-two & ;4%, dollars, amounting together to the sum of thirteen
hundred and two & +, dollars. :
Judgment signed this 5th day of Oct., 1876.
J. M. DEUL,
Dep. Clerk.
(Endorsed :) U. S. circuit court, southern district of New York, Thomas
N. Dale et al. vs. Hiram Barney. Judgment roll. A. W. Griswold,
pl’ffs att’y, 120 Broadway, N. Y. Filed Oct. 5, 1876.
U. S. cireuit court, southern district of New York.
At a stated term of the circuit court of the United States of America
for the southern district of New York, in the second circuit, held at the
United States court rooms, in the city of New York, on Saturday the 22d
day of April, in the year of our Lord one thousand eight hundred and
seventy-one.
Present the honorable L. B. Woodruff, circuit judge.
THos. N. DALE ET AL. )
vs.
HrrAM Barney,
and 54 other cases. |
U.S. circuit court, southern district of New York.
_ It is hereby stipulated and agreed that the order hereto annexed be
entered by and with the consent and direction of the court in each of the
roars year ms 8 a a be
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48 _ BARNEY, COLLECTOR, VS. OELRICHS ET AL.
several above entitled causes—fifty-four in all—and that upon the entry
of such order the said several causes stand referred to Hon. Edwards.
Pierrepont, for the purposes and in the manner specified in said order.
April 22d, 1871.
ALMON W. GRISWOLD, PU ffs Att'y,
Att’y for the several Plaintiffs.
Noau Davis,
Attorney for the several Defendants.
104 On reading and filing the stipulation on behalf of the respective
parties to the above entitled actions now pending in this court to-
recover duties alleged to have been illegally exacted upon charges and
cummissions, it appearing to the court that.the assessment of the damages
in each of the said several causes will require the examination of long ac-
counts and of numerous invoices, entries, and other documents and papers
and the taking of the testimony of various witnesses touching the same :
Now, on motion of A. W. Griswold, esq., of coungel for the said sev-
eral plaintiffs, Mr. Noah Davis, counsel for said several defendants, ap-
pearing and consenting thereto, it is ordered by the said court now here
that the said several causes be, and they are hereby, referred to Edwards
Pierrepont, esq., as sole referee to take proofs of and ascertain the claim
of the plaintiff or plaintiffs in each of the said several causes, with inter-
est, for excess of duties upon such charges and commissions which may be:
found to have been illegally exacted from plaintiffs and paid under pro-
test to defendants and not barred by the statute of limitations, whenever
the same has been pleaded, upon importations at the port of New York,
specified in the several bills of particulars served in said several causes.
and now on file in said causes. The said referee shall proceed to deter-
mine and adjust the claims of the said several plaintiffs in accordance with
the rules and decisions of this court in similar cases, so far as the same
shall be found applicable to the said causes herein above named.
And it is further ordered, that said referee state and report the amounts
ascertained by him on said several commissions and charges separately
and the facts found by him in respect thereto, and in respect to the pro-
tests touching the same. That he gave notice to the attorney of the re-
spective parties of the tim
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