BARNEY V. SCHMEIDER, 76 U. S. 248 (1869)

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U.S. Supreme Court

Barney v. Schmeider, 76 U.S. 9 Wall. 248 248 (1869)

Barney v. Schmeider

76 U.S. (9 Wall.) 248


1. It is not sufficient to sustain a verdict for the plaintiff that the testimony on which it was founded was known to the court by whom the jury was charged to find such a verdict. The evidence must be submitted to the jury, or the charge is erroneous.

2. The question, whether certain imported goods were similar to certain other goods described in the revenue law, for the purposes of customs duties, is a mixed question of law and fact, and cannot, by the mere charge of the court, be wholly withdrawn from the jury.

Page 76 U. S. 249

3. The proper mode of proving papers on file in any of the departments or public offices of the government is by procuring certified copies from those persons who have them in custody. The counsel for the government cannot be compelled to produce either such copies or the originals for the benefit of parties who may be litigating with the government.

4. Notice, therefore, to the party or counsel representing the government to produce such papers does not authorize the party giving the notice to use other copies than those properly certified as above stated.

Schmeider sued Barney, collector for the port of New York, in the court below in an action of assumpsit with the common counts only, to which Barney pleaded the general issue. The plaintiff's claim was for duties on certain woven goods alleged to have been unlawfully collected of him by the defendant as collector of the port of New York and which had been paid under protest. The act under which the goods were rated for duties provided that on all delaines, cashmere delaines, muslin delaines, barege delaines, comprised wholly or in part of worsted, wool, mohair, or goat's hair, and on all goods of similar description, not exceeding fifty cents in value per square yard, two cents per square yard shall be paid. And the point in dispute was whether the goods of plaintiffs, on which the two cents per yard had been assessed, were goods of a similar description to those above mentioned within the meaning of the act. A jury was called and sworn, and directed by the court to find a verdict for the plaintiffs, which was done, and judgment rendered for the amount claimed.

A paper was found in the record under the caption of "Case and Exceptions," signed and sealed by the judge who presided at the trial. This paper set forth some things which were said to be shown by the evidence, some things which appeared in evidence, and a large part of it was the evidence itself. There was also the full charge of the court, the prayer for instructions on the part of the defendant, which were refused, and the exceptions of the defendant.

Page 76 U. S. 250

Among other matters found in the bill of exceptions was this statement in the charge of the court to the jury:

"The testimony taken on a former trial has, with the consent of both sides and with the approbation of the court, been put in. It is very voluminous. It has not been read before this jury, nor was it necessary that it should be, for it was delivered in the hearing of the court only a few days since, and is fresh in its recollection. There is very little discrepancy in the testimony."

The court then proceeded to tell the jury what this evidence showed that was material to the issue, and to make a very able argument on the law of the case, and directed the jury to find for the plaintiff, or rather said, "the verdict ought to be for plaintiffs." To this part of the charge the defendant excepted specially.

In the course of the trial, the plaintiff, having given the defendant due notice to produce at the trial the original appeals made by him to the Secretary of the Treasury, was permitted to use copies proved by witnesses who mailed the originals, because defendant did not produce the originals. This was also excepted to. The questions now here were these:

1. Whether it was error in the court below, under the circumstances described, to tell the jury that their verdict ought to be for the plaintiff.

2. Whether it was error to allow the plaintiff to use the copies proved by the witnesses who mailed the originals.

3. Whether, on a right construction of the tariff act already quoted, the expression, "goods of a similar description" was confined to one ascertained species of goods or was applicable to others in addition, this last question, however, not being necessary to be passed on if either of the others were decided in the affirmative.

Page 76 U. S. 251

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