"tended only to show carelessness or irregularity in the discharge of their duties by the customs officers, but not that they were assuming powers not conferred by the statute;" and that the questions which the plaintiffs proposed to submit to the jury were immaterial and irrelevant. This view of the statutes on the subject, and to which we adhere, does not cover the material questions raised in this case.

Section 2930 of the Revised Statutes provides that on the receipt by the collector of the notice of dissatisfaction, he "shall select one discreet and experienced merchant to be associated with one of the general appraisers wherever practicable, or two discreet and experienced merchants, citizens of the United States, familiar with the character and value of the goods in question, to examine and appraise the same." The qualification prescribed by this section requires as well that the merchant appraiser associated with one of the general appraisers shall be a discreet and experienced merchant, and a citizen of the United States, and familiar with the character and value of the goods in question, as it does that the two merchant appraisers, who are to act without the general appraiser, shall be discreet and experienced merchants, and citizens of the United States, and familiar with the character and value of the goods in question. This section 2930 was taken from section 17 of the act of August 30, 1842, c. 270, (5 St. 564,) and section 3 of the act of March 3, 1851, c. 38, (9 St. 630.) Section 17 of the act of 1842 provided that on the receipt by the collector of the notice of dissatisfaction, he should select "two discreet and experienced merchants, citizens of the United States, familiar with the character and value of the goods in question, to examine and appraise the same. Section 3 of the act of 1851 provided that "wherever practicable, in cases of appeal from the decision of United States appraisers," under the provisions of section 17 of the act of August 30, 1842, "the collector shall select one discreet and experienced merchant, to be associated with one of the appraisers appointed under the provisions of this act, who together shall appraise the goods in question." It is quite apparent that the "one discreet and experienced merchant" referred to in section 3 of the act of 1851 is to be a discreet and experienced merchant having the additional qualifications prescribed in section 17 of the act of 1842, that is, that he is to be also a citizen of the United States and familiar with the character and value of the goods in question.

The importer is entitled to have a merchant appraiser who answers these qualifications, and is entitled to raise the question of a want of qualification by a protest and an appeal to the secretary of the treasury, and in a suit at law brought thereafter. If the merchant appraiser does not possess these qualifications, he has no power conferred on him by the statute to act as a merchant appraiser. The questions excluded by the court at the trial of this case, so far as they bore upon the question as to whether Mr. Bates was familiar with the goods in question or not, were competent; and the ruling of the court, which was to the effect that that question was to be determined solely by the collector, was erroneous. The questions excluded by the court as to whether Mr. Bates had any familiarity, and if so, how much, with silk velvets, and as to whether he was familiar with the value of silk velvets, were questions in the exact language of section 2930.

The remark of the court that it did not intend to cut the plaintiffs off from any "competent evidence of the fact that Mr. Bates was not a merchant, that is, an experienced man, having some familiarity with these goods," and "that he was not of the class pointed out in the act of congress, as an experienced merchant," must be regarded as emphasizing the word "competent," in view of the objection taken, that, if it were competent for the plaintiffs to try at all the question as to whether Mr. Bates was familiar with the goods in question, it was not competent for them to prove his incapacity by his own mouth, and as sustaining that objection, and as holding that Mr. Bates was

not a competent witness upon the subject of his familiarity with the character and value of silk velvets.

That the plaintiffs had a right, on the trial, to inquire whether the provisions of section 2930 had been complied with in this respect, has been determined by the decisions of this court in like cases. In Greeley v. Thompson, 10 How. 225, the circuit court had instructed the jury that the valuation made by two merchant appraisers, under the act of 1842, was invalid because one of the merchants who made the appraisement was wrongfully substituted for another who had been appointed, and who was removed by the collector for having stated it to be his opinion that the plaintiffs should have time to obtain evidence from England as to the true market value of the goods. The judgment of the circuit court was affirmed by this court, on the ground, among others, that the removal of one of the merchant appraisers, and the appointment in his place of another, under the circumstances stated, was illegal. This was an examination into the competency of the appointment of the substituted merchant appraiser, of the same character with the inquiry into the competency of the merchant appraiser in the present case.

In Converse v. Burgess, 18 How. 413, which arose under the act of 1842, the plaintiffs offered to prove that the merchant appraisers did not examine or see any of the original packages of the merchandise, which was sugar, but only saw samples which had been previously taken from one in 10 of the packages described in the invoice, and that such samples would not, when exposed to the air, afford a fair criterion by which to judge of the importation, and claimed the right to go behind the return of the merchant appraisers, on the ground that they had not examined the sugar. Section 21 of the act of August 30, 1842, c. 270, (5 St. 565,) now embodied in section 2901 of the Revised Statutes, provided that the collector should designate on the invoice at least one package of every invoice, and one package at least of every 10 packages, imported, to be opened, examined, and appraised in the public stores. The defendant objected to the admission of the evidence, in the absence of fraud on the part of the appraisers, and claimed that their decision was in the nature of an award, and final under the statute, and not open to review under the protest. The protest alleged that the goods "were not fairly and faithfully examined by the appraisers." The circuit court ruled that the evidence was admissible, and that the plaintiffs might go to the jury on the question whether the examination made by the merchant appraisers was in substance and effect equivalent to an examination of one package in 10 of the importation, and that, if it was not, the appraisement was void. The plaintiffs had a verdict and a judgment, and, on a writ of error by the collector, the judgment was affirmed by this court. The court observes, in its opinion, that the decision of the merchant appraisers is final "provided it is made in pursuance of law;" and, referring to the acts of congress on the subject, the court adds: "These acts of congress provide for the appointment, regulate the duties, and impose the limitations on the authority, of the appraisers, and determine the conditions on which the validity of their assessment depends. All their powers are derived from these acts, and it is their duty to observe the restrictions and to obey the directions they contain. In the present instance, there was a neglect of the positive mandate to open, examine, and appraise one package of every invoice, and one package at least of every 10 packages of goods, wares, and merchandise;' and the jury have found that the inquiry they made was not, in substance nor in effect, an equivalent for such an examination. We are, therefore, of the opinion that the importer was not precluded by their return from disputing the sufficiency or accuracy of their assessment."

If such non-observance of the positive mandate of the statute in regard to the examination of so many of the original packages as the statute specified, as a condition on which the validity of the assessment depended, vitiated the

appraisement, the non-observance of the statute in regard to the qualifications of the merchant appraiser must be regarded as equally one of the conditions on which the validity of the assessment depends, and the plaintiff must have an equal right in either case to make proof, at the trial, of such non-observance, if he has complied with the other statutory requirements necessary for the bringing of his suit. We do not lay down any absolute or comparative standard of familiarity with the character and value of the goods which must be applied to carry out the requirements of the statute. There must be, in every case, a substantial compliance with the statute. This does not necessarily require the highest degree of such familiarity. There must be, in good faith, in every case, the appointment of a person having the qualifications prescribed by the statute.

In regard to the question whether Mr. Bates was a competent witness to prove that he was not familiar with the character and value of silk velvets, we are of opinion that his evidence on that subject was admissible. As the question of his familiarity with the article and with its value necessarily depended upon the nature, and to some degree, at least, upon the extent of his experience in connection with the article, no one could know what that experience was so well as himself. If he is to be excluded as a witness on the subject, when offered by either side, the court, and the jury, and the parties would be deprived of the best testimony within reach. There is no ground of public policy which forbids that the merchant appraiser should be a witness to the extent above indicated. The brief of the solicitor general does not urge that the witness was not a competent witness to that extent.

The question is somewhat analogous to that in the case of an arbitrator. It has been held that an arbitrator can be a witness as to the time when, and the circumstances in which, he made an award, with a view to show that, by the terms of the submission, he was not authorized to make the award, (Woodbury v. Northy, 3 Greenl. 85;) as to the fact that the arbitrators did not examine or act upon a certain matter, Roop v. Brubacker, 1 Rawle, 304; as to facts which occurred at or during the arbitration, and which tend to show the award to be void for legal cause, Strong v. Strong, 9 Cush. 560, 576; and as to whether a certain claim was included in the award, Hale v. Huse, 10 Gray, 99. See, also, Spurck v. Crook, 19 Ill. 415. The same principle has been applied in the case of a tribunal called a jury, appointed to assess damages and apportion benefits in the widening of a street, (Bank v. Mayor, 9 Wend. 244;) and in the case of commissioners appointed to condemn land for railroad purposes, (Railroad Co. v. Probate Judge, 53 Mich. 217, 18 N. W. Rep. 788.) In Duke of Buccleuch v. Metropolitan Board of Works, L. R. 5 H. L. 418, it was held that an arbitrator may be a witness as to what passed before him and as to what matters were presented to him for consideration. See 2 Greenl. Ev. § 78, and notes.

We are also of opinion that the court erred in excluding the evidence of Mr. Bates, which was offered to show that he did not observe the requirements of section 2901 of the Revised Statutes, and did not open, examine, and appraise the packages designated by the collector, and ordered to be sent to the public store for examination. The court observed that it would not exclude evidence that Mr. Bates made no examination at all, and thereupon the witness, in reply to a question whether he made any examination of any of the merchandise, answered that he did. But this ruling did not give to the plaintiffs that to which they were entitled. The subsequent questions which were excluded, as to how many cases he opened or had opened for examination, and as to the character of the examination he made, the object of which questions was to ascertain whether it was such an examination as the statute prescribed, were intended to show a non-compliance with the statute as to examination, within the terms of the protest. This the plaintiffs had a right to show. In Greely v. Thompson, before cited, the circuit court had instructed the jury that if

both of the appraisers did not make some personal examination of the goods, their report or decision was not made in conformity to law, and did not justify the penalty; and the propriety of this instruction was approved by this court. In Converse v. Burgess, before cited, it was held, as we have seen, that the appraisement was vitiated by proof of a failure to open, examine, and appraise the packages designated by the collector, or to do what was an equivalent for such an examination.

We are also of opinion, for the reasons before stated, that Mr. Bates was a competent witness to prove the extent and character of the examination which he made of the goods in question. He may have been the only witness who could testify as to such examination, and certainly there was no witness who could know more on the subject. We do not consider it necessary or proper to express an opinion upon any of the other questions raised by the counsel for the plaintiffs in error.

The judgment of the circuit court is reversed, and the case is remanded to that court, with a direction to award a new trial.

MUSTIN and others v. CADWALADER, Collector, etc.
(November 21, 1887.)

In Error to the Circuit Court of the United States for the Eastern District of Pennsylvania.

H. E. Tremain, Mason W. Tyler, and F. P. Prichard, for plaintiffs in error. Sol. Gen. Jenks, for defendant in error.

BLATCHFORD, J. This an action at law brought in the court of common pleas for the county of Philadelphia, in the state of Pennsylvania, by the members of the copartnership firm of Thomas J. Mustin & Co., against the collector of the port of Philadelphia, and removed into the circuit court of the United States for the Eastern district of Pennsylvania, to recover the sum of $346.09, alleged to have been illegally exacted by the collector as duty on worsted yarn imported by the plaintiffs from Bremen, and entered at the custom-house July 1, 1886. There was a protest, an appeal to the secretary of the treasury, and a decision by him, before the suit was brought. The statute in force at the time, applicable to the goods in question, was Schedule K, of section 2502 of the Revised Statutes, as enacted by the act of March 3, 1883, c. 121, (22 St. 509,) which imposes as duty on worsted yarns valued at above 40 cents per pound and not exceeding 60 cents per pound, 18 cents per pound, and in addition 35 per cent. ad valorem; and on the same article valued at above 60 cents per pound and not exceeding 80 cents per pound, 24 cents per pound, and in addition 35 per cent. ad valorem. The goods in question were entered as having cost not more than 60 cents per pound and as being dutiable at 18 cents per pound and 35 per cent. ad valorem, making the dutiable value $922, and the amount of duty $611.42, corresponding with the invoice. The appraiser advanced the valuation from $922 to $1,041, the increase changing the rate of duty from 18 cents per pound to 24 cents per pound, and resulting in a total duty of $749.31, instead of $611.42, and in an additional duty of 20 per cent., under section 2901 of the Revised Statutes, on the $1,041, or $208.20, making a total duty of $957.51, or $346.09 more than the amount stated by the plaintiffs on the entry as the proper duty. After the invoice had been advanced in value by the appraiser, the importers demanded a reappraisement, which took place before the general appraiser, and a merchant appraiser, the latter being William F. Read. The claims of the plaintiffs on the trial were in accordance with the claims made in the protest.

At the trial, it appeared that at the opening of the proceedings for the appraisement by the general appraiser and the merchant appraiser, the broker of the plaintiffs appeared before them and presented to them a written protest against the appointment of Mr. Read as merchant appraiser, which stated "that the said William F. Read is not an importer of or dealer in the particular quality or kind of yarn in dispute, and that he is not acquainted with the foreign market values of the same, and that, therefore, his appointment is not in conformity with the customs regulations on this subject. The protest cited article 466 of the general regulations under the customs laws, issued by the treasury department in 1884, and in force at the time of the plaintiffs' importation, and which required that the merchant appraiser should be a "discreet and experienced merchant, a citizen of the United States, familiar with the character and value of the goods in question," and referred to section 2930 of the Revised Statutes. The plaintiffs offered this paper in evidence, and it was objected to by the defendant as immaterial, and also on the further ground that, as there had been a merchant appraise

ment, the same was final and conclusive as to the value of the goods, and that it could only be attacked upon the ground of fraud. The plaintiffs also offered to show that Mr. Read was not familiar with the character and value of the goods. This evidence was objected to by the defendant as immaterial and irrelevant. All of the evidence thus offered was ruled out by the court, on the ground that the act of congress had confided exclusively to the collector the selection of the merchant appraiser, and that the importer had no right to object to such selection; that the provisions of the statute were simply directory to the collector; that evidence tending to show that the person selected had not the requisite familiar knowledge of the subject-matter of the importation to enable him to discharge his duties satisfactorily, could not be regarded as sufficient ground for assailing the action of the collector; and that his action in selecting a particular person to be merchant appraiser was not subject to revision in any court where the importer sought to recover what he claimed to be an erroneous imposition of duties. The plaintiffs excepted to these rulings. There was a verdict and a judgment for the defendant, to review which the plaintiffs have sued out a writ of error. The question involved in the exclusion of the evidence offered, is the same question as that passed upon in the case of Oelbermann v. Merritt, ante, 151, decided herewith. For the reasons stated in the opinion in that case, it must be held that the evidence was erroneously excluded.

Other questions were raised by the plaintiffs at the trial, and are discussed in the briefs of their counsel in this court, but we do not think it necessary or proper to pass upon any question other than the one above considered.

The judgment of the circuit court is reversed, and the case is remanded to that court, with a direction to award a new trial.

THE MAGGIE J. SMITH.

THE MAGGIE J. SMITH and others, Claimants, v. WALKER and others. WALKER and others v. DUN and others.

(November 21, 1887.)

1. COLLISION-VESSELS MEETING ENd on-FailuRE TO PORT.

Rev. St. U. S. 817, sixteenth rule of navigation, provides that if two sail vessels are meeting end on, or nearly end on, so as to involve risk of collision, the helms of both shall be put to port so that each may pass on the port side of the other. The court found that the Smith and the Robinson were approaching end on, that the Robinson ported immediately after discovering the Smith, that the Smith starboarded, and that this starboarding was the immediate cause of the collision. Held, that the Smith was liable.

2 ADMIRALTY-COSTS-STIPULATION TO LIMIT LIABILITY.

To limit their liability to the value of the vessel, the owners had her appraised under the provisions of Rev. St. U. S. 22 4283-4289. They then filed a stipulation to perform the final decree in the case. Held, that the costs of the circuit and district courts, and the allowance of interest upon the amount of the stipulation from the day it was filed in court, rested in the discretion of the court below.

Appeals from the Circuit Court of the United States for the District of Maryland.

Robert H. Smith, John H. Thomas, and W. W. MacFarland, for The Maggie Smith and others. John Lathrop and Sebastian Brown, for Walker and others.

FIELD, J. This case comes before us from the circuit court of the United States for the district of Maryland. It is a libel against the vessel Maggie J. Smith for damages caused by her collision with the schooner Enoch Robinson, which resulted in sinking the latter, and in the entire loss of both vessel and cargo. The libelants are the owners of the Enoch Robinson. The petitioners are the owners of the property on board, who have intervened for their interest. The claims of libelants and petitioners exceeded the value of the Maggie J. Smith and her freight, and thereupon the owners of that vessel instituted proceedings for the benefit of the limited liability provisions of Rev. St. §§ 4283-4289, under which the value of the vessel was appraised at