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The proceeding by libel against Coffey, although civil in form, was penal in its nature, because it sought to have an adjudication of the forfeiture of his property for acts pro. hibited. It was, as we have seen, a case in which a punishment, denounced by statute, was sought to be inflicted as a consequence of the existence of facts that were in issue and had been finally determined against the United States in a criminal proceeding.

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In the present case the action against Stone is purely civil. It depends entirely upon the ownership of certain personal property. The rule established in Coffey's case can have no application in a civil case not involving any question of criminal intent or of forfeiture for prohibited acts, but turning wholly upon an issue as to the ownership of property. In the criminal case the Government sought to punish a criminal offense, while in the civil case it only seeks in its capacity as owner of property, illegally converted, to recover its value. In the criminal case his acquittal may have been due to the fact that the Government failed to shou, beyond a reasonable doubt, the existence of some fact essential to establish the offense charged, while the same evidence in a civil action brought to recover the value of the property illegally converted might have been sufficient to entille the Government to a verdict. Not only was a greater degree of proof requisite to support the indictment than is sufficient to sustain a civil action; but an essential fact had to be proved in the criminal case, which was not necessary to be proved in the present suit. In order to convict the defendant upon the indictment for unlawfully, willfully, and feloniously cutting and removing timber from lands of the United States, it was necessary to prove a criminal intent on his part, or, at least, that he knew the timber to be the property of the United States. Regina v. Cohen, 8 Cox C. C. 41; Regina r. James, 8 Car. & P. 131; United States v. Pearce, 2 McLean, 14; Cutter v. State, 36 N. J. Law, 125, 126. But the present action for the conversion of the timber would be supported by proof that it was in fact the property of the United States, whether the defendant knew that fact or not. Woodenware Co. v. United States, 106 U. S. 432. An honest mistake of the defendant as to his title in the property would be a defense to the indictment but not to the civil action. Broom's Leg.Max. (5th ed.) 366, 367. It can not be said that any fact was conclusively established in the criminal case, except that the defendant was not guilty of the public offense with which he was charged. We can not agree that the failure or inability of the United States to prove in the criminal case that the defendant had been guilty of a crime, either forfeited its right of property in the timber or its right in this civil action, upon a preponderance of proof, to recover the value of such property. (Italics ours.)

In Chantango v. Abaroa (218 U. S., 476, 481), the court reiterated with approval the above language of the Stone case as to the difference of degree in proof affording a ground why a crimir al or quasi criminal judgment was not a good plea res adjudicaia in a civil proceeding and thus confined the Coffey case:

Neither will identity of parties always operate to make a judgment in a criminal action admissible in evidence in a civil action. There must be identity of issue. Thus in Stone v. United States, 167 U. S. 178, 187, Stone was sued by the United States to recover the value of timber alleged to have been cut by him from public lands. He had been theretofore indicted, tried, and acquitted for unlawfully cutting the same timber from the public lands, and plead this judgment as a bar to a suit for civil liability. This was held to be no defense, and Coffey's case, 116 U. S. 436, distinguished as having been placed upon the ground “that the facts ascertained in a criminal case, as between the United States and the claimant,” could not be again litigated between them, as the basis of any statutory punishment denounced as a consequence of the existence of the facts.

It may therefore be taken as settled law that, while a criminal judgment of acquittal may be pleaded res adjudicaid in another criminal proceeding or quasi criminal proceeding such as to enforce a forfeiture or penalty, such is not, for the reasons stated by this and the Supreme Court in the cases quoted supra, an estoppel in a civil proceeding.

We, therefore, come to the question, is this proceeding commenced by appellants by filing these protests a criminal or quasi criminal proceeding, to enforce a penalty or work a forfeiture, or is it a proceeding in the nature of a civil action?

It is important to note that as shown by the papers these reliquidations by the collector simply and only laid duty at the prescribed rate (6 cents per pound) upon the imported weights of cheese theretofore not taxed. No penalties, no added duties, no forfeiture was declared or assessed by the collector. Nor were any duties added to those weights of checse previously assessed. The collector no doubt being advised of the rulings hereinafter reviewed prudently and carefully laid the regular duty of 6 cents per pound upon those weights of cheese previously imported, and by false weights concealed from him and introduced into the commerce of the country without the payment of any duty. This protest proceeding, therefore, seeks a mandate to recover not a penalty levied, nor goods forfeited, but money held for the regular duties upon dutiable merchandise shown to have been introduced into the country without payment of any duties whatsoever. The proceeding, therefore, is purely civil in its nature and conceding the judgment of acquittal of Antonio Zucca in the criminal proceeding, sufficient in all other particulars, being an acquittal in a criminal action, it is not sufficient as a plea in estoppel in this civil action or proceeding.

The decision of the board, for the foregoing reasons, should be reversed and the case remanded for a new trial by the board.

While the opinion of the Supreme Court in the Vitelli case calls for further proceedings by a “competent” tribunal, this court so regards the board. The determination of the presence or absence of fraud has never been deemed by Congress an extraordinary function. Its determination, even final determination, is vested in numerous minor and administrative officers.

Congress by the act of May 27, 1908 (35 Stat. L., 406, sec. 31, Part 1, Public Laws), vested in the Board of General Appraisers all the investigatory powers at least of United States circuit courts. The act provides:

Sec. 31. That all of the general appraisers of merchandise heretofore or hereafter appointed under the authority of said act shall hold their office during good behavior but may, after due hearing, be re

moved by the President for the following causes,and no other: Neglect of duty, malfeasance in office, or inefficiency.

That hereafter the salary of each of the general appraisers of merchandise shall be at the rate of $9,000 per annum.

That the said boards of general appraisers and the members thereof shall have and possess all the powers of a circuit court of the United States in preserving order, compelling the attendance of witnesses, and the production of evidence, and in punishing for contempt.

Sec. 4. That all laws and parts of laws inconsistent with this act are hereby repealed.

SEC. 5. That this act shall take effect and be in force from and after its passage.

Approved, May 27, 1908.

Their long and intimate acquaintance with customs procedure and methods of evading the same argues them ore "competent" for this determination than perhaps any other tribunal of the Government. I therefore concur in the foregoing opinion.



It can not be said that the invoice has no value whatever as evidence. Not only is it prima facie evidence of what it declares, but it is the evidence which determines the collector's action as to all imported merchandise which has not been examined. Where there was nothing except the invoice to show the yarn count of cotton cloths under paragraphs 253 and 252, tariff act of 1913, and the invoice was undiscredited and unimpeached, the Board of United States General Appraisers correctly presumed that the yarn count was shown by the invoice, and their decision sustaining the protest and directing reliquidation in accordance with the yarn count stated in the invoice is affirmed.

United States Court of Customs Appeals, May 1, 1920. APPEAL from Board of United States General Appraisers, Abstract 43356. (Affirmed.]

Bert Hanson, Assistant Attorney General (Martin T. Baldwin, special attorney, of counsel), for the United States. Comstock & Washburn (Geo. J. Puckhafer of counsel), for appellees.

(Oral argument Feb. 27, 1920, by Mr. Baldwin and Mr. Puckhafer.] Before MONTGOMERY, SMITH, BARBER, DE VRIES, and MARTIN, Judges. SMITH, Judge, delivered the opinion of the court:

Jacquard figured cotton cloth in the piece imported at the port of New York was classified by the collector of customs as “Jacquard figured manufactures of cotton,” and was therefore assessed for duty

1 T. D. 38400 (38 Treas. Dec., 403).

* *

at 30 per cent ad valorem under that part of paragraph 258 which reads as follows:

258. * all other Jacquard figured manufactures of cotton, or of which cotton is the component material of chief value, 30 per centum ad valorem.

The importers protested that the goods were not dutiable as Jacquard figured manufactures of cotton,” but were properly dutiable as cotton cloth "at the appropriate rate, according to condition and the average number of yarns," etc., under the provisions of paragraphs 253 and 252 of the tariff act of 1913, which said paragraphs in so far as necessary for the understanding of the issues involved, are as follows:

253. The term cotton cloth, or cloth, wherever used in the paragraphs of this schedule, unless otherwise specially provided for, shall be held to include all woven fabrics of cotton, in the piece, whether figured, fancy, or plain, and shall not include any article, finished or unfinished, made from cotton cloth. In the ascertainment of the condition of the cloth or yarn upon which the duties imposed upon cotton cloth are made to depend, the entire fabric and all parts thereof shall be included. The average number of the yarn in cotton cloth herein provided for shall be obtained by taking the length of the thread or yarn to be equal to the distance covered by it in the cloth in the condition as imported, except that all clipped threads shall be measured as if continuous; in counting the threads all ply yarns shall be separated into singles and the count taken of the total singles; the weight shall be taken after any excessive sizing is removed by boiling or other suitable process.

252. Cotton cloth, not bleached, dyed, colored, stained, painted, printed, woven figured, or mercerized, containing yarns the average number of which does not exceed number nine, 74 per centum ad valorem; * * exceeding number ninety-nine, 274 per centum ad valorem. Cotton cloth, when bleached, dyed, colored, stained, painted, printed, woven figured, or mercerized, containing yarn the average number of which does not exceed number nine, 10 per centum ad valorem; * exceeding number ninety-nine, 30 per centum ad valorem;

The goods were returned by the appraiser as woven cotton fabrics in the piece, woven on an ordinary loom with figured effects produced by means of the Jacquard attachment.

Between the filing of the protests in May, 1914, and the hearing thereof by the board in September, 1918, this court in United States v. Sherman & Sons (6 Ct. Cust. Appls., 271; T. D. 35501) held that goods of the kind here in controversy were more specifically provided for as woven figured cotton cloth, woven in the piece, than as Jacquard figured manufactures of cotton, and that such goods were therefore dutiable under paragraph 252 rather than under paragraph 258. Accordingly, when the protests in this case came on for hearing before the board, the decision in the Sherman case was accepted as controlling, and it only remained for the board to determine at what rate the goods should be assessed under paragraph 252, which rate in its turn, under the terms of the provision, depended on the number of the yarns and the condition of the cotton cloth.



It affirmatively appears that, as the goods were classified by the collector as Jacquard figured manufactures of cotton, no samples of the importation were retained, and consequently no representative samples of the importation were available for submission on the hearing of the protest by the board. William H. Parkhill, an examiner in the customs service, called by the importers, testified, however, that there had been filed with him samples of other importations, the quality numbers of which were the same as those of the goods under discussion, and therefore established that such samples were of the same quality and generally representative of the cloths in controversy. Unfortunately none of those samples, with the exception of numbers 4044, 6110 and 4702/5020, was of sufficient size to permit the determination of the yarn count in accordance with the provisions of paragraph 253, and an analysis to fix the average yarn count could be made of those sample numbers only. The official analysis set out in the record, shows, first, that the average yarn count of number 4044 was 26; that of number 6110, 62; and that of number 4702/5020, 61; second, that the remaining samples submitted were all too small for analysis.

The board overruled the protest as to those fabrics the yarn count of which was neither invoiced nor shown, and sustained it as to the fabrics invoiced as quality numbers 4044, 6110, 4702/5020 and as to those fabrics the yarn count of which was invoiced but not determinable by analysis.

The Government appealed and now asks that the board's decision be reversed in so far as it sustains the protest as to textile fabrics the yarn count of which was invoiced but not otherwise established.

In support of its appeal the Government contends in effect that the invoice required by law is no evidence whatever of the nature or character of the goods, or of any other fact determinative of the classification of imported merchandise or of the rate or amount of duty which should be imposed thereon.

We can not agree with this contention. From 1789 down to the present time the invoice has been so necessary, so indispensable to a proper administration of the customs, that the Congress has always prescribed the presentation of an invoice as a prerequisite to the entry of imported merchandise. Indeed, from 1789 to July 14, 1832, a period of 43 years, the invoice was in the ordinary course of business the only means furnished by statute to the collector for the ascertaining of the official or dutiable value of imported merchandise, and if no invoice was submitted the collector was bound to retain the importation in customs custody until a proper invoice was produced. If it was impracticable to furnish an invoice, or if the collector suspected that the invoice presented was fraudulent, he might order an

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