
    Ripley and others against Gelston.
    ALBANY
    August, 1812
    .A spaniel fromJfavanv.v t,2n!\Z ing met witfe a violent gals of wind, put into the port of JYeut-York, and was entered at the custom-house, as a in distress s having conformed to the regulations of the act of congress {Cong. 5. sees. 3. c. 128. s. 60.) in such cases, she was condemned, after a regular survey by the -wardens of the port, as unfit So be repaired, and, under their direction, was sold at public auction, and purchased by American citizens, who, at their own expense, afterwards repaired her, and fitted her out for a voyage to Cadiz: but the collector of the customs refused to give her a clearance, unless the new owners would first pay the tonnage duty or light money of 50 cents per ton, imposed on all foreign ships entering the ports of the United States. They objected to the demand as illegal, but paid it, and afterwards, brought an action of assumpsit against the collector, to recover back the money so paid. A few days after it was paid, and before the suit was commenced, the collector paid the money into the Hranch Hank of the United States, to the credit of the treasurer of the United States'r and no request was made, or notice given, by the plaintiffs, at any time, to the collector, or other officer of the customs, not to pay over the money, or to pass it to the credit of the United States. It was held, that no tonnage duty or light money was due, in this case; and, at any rate, it was wrongfully demanded of the plaintiffs, who having paid it compulsorily, they were entitled to their action against the collector to recover it back, without showing a notice to him not to pay it over to the government, especially, as there was no other person against whom the plaintiffs could bring their action.
    
      JVbtice to an agent not to pay over the money to his principa!, is not necessary, where the payment is compulsory, and it is not made expressly for the use of the principal.
    THIS was an action of assumpsit The cause was tried at ¿he Netv-Yorlc sittings, the 5th December, 1811, before Mr. Justice Van Ness.
    
    
      At the trial, a bill of exceptions was tendered to the opinion of the judge. The following facts were stated in the bill. In August, 1809, a Spanish ship, called the Maria Theresa, on her voyage from Havanna, in the island of Cuba, to London, sus-. tained very considerable injury, by a gale of wind, and put into the port of New-York in distress; where she arrived the 20th September, 1809, and was entered at the custom-house as a vessel in distress. On the 5th October, the cargo having been unladen, the officer of the customs, appointed to superintend the unloading, left the ship, which was afterwards condemned by the wardens of the port, as unfit to be repaired, and was sold by the agent of the Spanish owner, under the direction of the wardens, to the plaintiffs, on the 10th November, to whom a bill of sale, in the usual form, was executed by the agent of the owner, and in his name.
    The plaintiffs caused the ship to be repaired, and, on the 5lh May, 1810, she was cleared at the custom-house for a voyage from New-York to Cadis. On obtaining the clearance, the plaintiffs, as owners of the ship, were required by the officers of the customs, to pay 266 dollars and 75 cents, tonnage duty and light money for the ship; notwithstanding the plaintiffs, at the time of paying the money, objected to the payment of it, as illegal. The money was passed to the credit of the United States, in the cash book of the custom-house, on the 4th June, 1810.
    The defendant, who is the. collector of the customs for the port of New-York, within a few days after the 4th June, 1810, paid the sum of 266 dollars and 75 cents, into the Branch Bank of the United States, in the city of New-York, to the credit of the treasurer of the United States, which was before the commencement of this suit. No request was made, or notice given, to the defendant, or any of the officers of the custom-house, at the time of paying the money by the plaintiffs, or afterwards, not to pay over the money, or pass it to the credit of the United States.
    
    It is not customary to demand any tonnage duty or light money of vessels arriving at the port of New-York, and entering at the custom-house, as vessels in distress ; but if such vessels change their voyage, and clear out for a different port from that to which they were originally destined, tonnage duty and light money were demanded, on their obtaining a clearance for such new voyage, though the witnesses for the defendant could not recollect any particular instance in which such demand or payment had been made.
    
      
      Baldwin, for the defendant.
    1. The defendant had a right to demand and receive of the plaintiffs, as owners of the ship, the money paid by them for tonnage duty or light money. By the act of congress (1 Cong, sess. 2. c. 30.) imposing duties on the tonnage of ships, a duty of fifty cents per ton is imposed on all foreign ships or vessels; and on ships or vessels of the United States, six cents per ton. .None but vessels that have been registered pursuant to the act for the registry of vessels, (2 Cong. sess. 2. c. 1.) are deemed vessels of the United States; and by the 6th section of the act passed 27th March, 1804, (8 Cong. sess. 1. c. 57.) a duty of 50 cents per ton, to be denominated light money, is laid upon all ships or vessels, not of the United States, which, after the 30th of Jmie, 1804, may enter the ports of the United States, and which light money is to be deducted, levied and collected in the same manner, and under the same regulations, as the tonnage duties. This vessel being Spanish when she came into the port of New-York, was liable to pay the light money, under the act. None but American vessels are exempted.
    By the 60th section of the act to regulate the collection of duties on imports and tonnage, (5 Cong. sess. 3. c. 128.) provision is made for any ship or vessel, from any foreign port, compelled by distress of weather, or other necessity, to put into any port of the United States to which they are not destined; and on complying with the formalities therein required, the cargo, if unladen, may be reloaded, and the vessel may proceed with it to the place of her destination free of any charge, except for the storing and safe keeping of the goods, and the fees to the officers of the customs, as in other cases. By the 63d section of the same act, tonnage duties are required to be paid to the collector, at the time of making the entry of the ship or vessel, and no permit to unlade the goods can be given until the tonnage duty is first paid»
    We contend that although this vessel entered in distress, and complied with the formalities prescribed by the act; yet as she did not proceed on her voyage, or clear out for her original port of destination, she must be liable to pay light money. Though tonnage duty, by the 63d section, is required to be paid on the entry of the vessels, yet that regulation is not applicable to vessels entering in distress, who, if they proceed on their voyage again, are not made liable to pay duties. If a vessel, though arriving in distress, breaks up her voyage and enjoys all the advantages of a port of the United States, as a place "of trade, she ought to pay the tonnage duty or light money, as other vessels. This is the intention of congress, as fairly to be collected from the act. Though the cargo is brought in under the same circumstances of distress, yet if any of it is sold, it pays a duty. The same reason is applicable to the vessel, if,- instead of proceeding on her voyage, she is sold. The exemption is to be confined strictly to the case of coming in in distress, and the prosecution of the voyage after-wards ; otherwise, vessels might come in, on the slightest pretext of distress, as the loss of a sail or spar, and finding it convenient to sell vessel and cargo, might break up the voyage, and thus gain every purpose of trade, without a payment of the duties.
    2. But if the plaintiffs were not liable to pay the duties for this vessel, yet the defendant having paid over the money to his principal, the government of the United States, before any notice not to pay it over, or suit brought, he cannot be made liable, nor can the plaintiffs recover it back. The law on this subject is clear and well settled. And, on this ground, the plaintiffs must fail in their action.
    
      T. A Emmet, contra.
    In Campbell v. Hall, decided in the court of K. B. in England, the money was not paid over to the use of the king, but kept in the hands of the collector, with the privity and consent of the Attorney-General, for the express purpose of trying the question as to the validity of imposing the duty. That was a proper and dignified course of proceeding on the part ' of the government. In the present case, he was sorry to see, for the credit of the government of the United States, that a difierent course had been pursued, and an attempt made to screen their right to this money from investigation, by raising the question as to the paying over the money by the defendant to the use of the United States.
    
    1. Light money, payable by foreign vessels, is directed to be levied and collected in the samé manner as the tonnage duty. Both stand on the same ground. By the 63d section of the act for the collection of duties, the tonnage duty must be paid at the time of making entry of the vessel, and before any permit for unlading the goods is granted. The law relative to tonnage applies only to vessels coming in to trade. It is a duty on entry. Vessels forced in by distress are not liable to this duty. After being admitted as a vessel in distress, and having complied with all the formalities of the law, the collector had no right to exact the pay* ment of light money, whether the vessel sailed to her port of destination or not. It is said that fraud and collusion may be practised under the pretence of distress; but the law provides against any imposition, and it is not pretended, in the present case, that the distress was fictitious.
    Again, a sea-lettered vessel pays only six cents tonnage duty; and the defendant has obliged the plaintiffs to pay fifty cents, as if she was a vessel owned wholly by foreigners.
    Admitting that a vessel entering in distress, and afterwards sold, is liable to pay the duty, still, we contend, the plaintiffs, who purchased the vessel at public auction, are not liable to pay it. The collector must have recourse to the original owners.
    By the 93d section of the act relative to the collection of duties, a master of a vessel, bound to a foreign port or place, on delivering the manifest of his cargo to the collector, and taking the requisite oath, or affirmation, is entitled to a clearance. The act is imperative, and the collector has no right to refuse it. By refusing a clearance in this case, until this light money was paid, the payment of it was compulsory on the plaintiffs.
    2. The objection that the action does not lie, after the money has been paid over, is formal. It does not go to the right and justice of the case. We contend that the action well lics against the defendant, the collector of the customs, in this case. In Whitbread v. Brookbank, the objection was, that an action for money had and received would not lie against all excise officer, for an over payment. In Campbell v. Hall, the objection was not made. In Stevenson v. Mortimer, an action for money had and received was held to lie against a custom-house officer, for an ever payment, or excess, of fees. In the case of Champlin v. Bullman, which was like the present, an action for monpy had and received was sustained against the defendant, the collector of the customs of the port of Bristol, to recover back money received as a duty on sails belonging to a French prize ship, which the court decided the plaintiff was not bound, by law, to pay. In Greenway v. Hurd, it was held that the action would not lie against an excise officer, if he had paid the money over to his superior. This objection of the defendant is founded on the cases of Sadler v. Evans, Butller v. Harrison, and Greennway v. Hurd. The principles to be deduced from those cases, if attentively examined, are, that this action will not lie, 1. Where the payment is voluntarily made to a known agent, who is compelled to pay over the money, and where the principal himself is liable ; 2. Where the money is paid by mistake, and there is no notice of the mistake, or not to pay over; 3. Where money is paid to a subordinate agent, who is obliged, under a penalty, to pay it over, and actually does pay it over, to his superior officer. But none of these principles apply to the case of a compulsory payment of an illegal demand, and where the officer knows of the illegality.
    The defendant is not a subordinate officer. He is to ascertain what duties are payable, and to receive all moneys paid for duties. He is to exercise his judgment and discretion, as to the duties payable. He is obliged to pay over the moneys received by virtue of the act. He is not required to pay over money illegally received, or if the legality of the payment admits of a doubt. No notice is necessary in this case. The defendant is bound to know the law, and to declare it. Ignorance of the law in him is criminal. He must understand it at his peril, and act accordingly. If he had doubts, and was told that it was an illegal demand, he ought to have applied to the government for instructions, and demanded an indemnity, before he paid over the money.
    Where the payment is illegal, the right of action is instantaneous and perfect, on the payment of the money; but in case of a mere mistake, no action lies until notice is given of the mistake, and a demand made of the money erroneously received. The defendant is the highest and the only officer against Avhom an action can be brought, and it cannot be in his poAver, by any voluntary act, between him and the government, to defeat the party of his action. If by paying over the money he can avoid all responsibility, he may do so in half an hour after the payment to him. How is the plaintiff to know Avhen it is paid over ? Is he to remain ignorant of the fact until the time of trial, and then be surprised and entrapped by this objection ?
    
      Baldwin, in reply. The defendant had some ground, at least, in this case, to demand the light money. It was not a clear case; and there was no mala fides on his part. In Chapman v. Bull-man, there Avas a special verdict, and no objection was made to the act. In Whitbread v. Brookbank, Lord Mansfidd said it would be “ a great inconvenience, if an. action for money had and received would lie against an officer of the revenue for an over payment.”
    The true distinction is, that an officer is liable, if he takes money mala fide ; but not, if he receives it bona fide, or by mistake.
    
      Lord Mansfield and Baron Perrott, in Sadler v. Evans,
      
       both laid down the principle, that where a payment is made to a known agent, the action ought to be brought against the principal, unless in special cases, as under a notice or mala fide. Chitty
      
       states the rule as settled, that if money be paid over before notice to retain it, the agent is not liable, except in the case of an auctioneer or stakeholder. The same principle is recognised by this court, in the case of Hearsey v. Pruyn;
      
       though the court seemed to think that the act of the party in calling on a' witness to take notice that the toll was overcharged, was a sufficient notice not to pay the money over. But the English decisions do not support the position that such an act or declaration of the party is equivalent to a notice. A suit brought is sufficient notice ; but an objection to the legality of the demand is not so. The party may object, but if he afterwards pays the money, the agent has a right to conclude that the objection is waived, unless he has some notice to the contrary. In Greenway v. Hurd, Buller, J. said, though the plaintiff objected, in June, to pay the money, yet he seemed afterwards to waive the objection.
    If the party who pays the money means to resort to the agent to recover it back again, he ought to give such a notice as would justify the agent in retaining the money, and enable him to defend himself against the claim of. his principal, or to obtain a bill of inter-pleader between the parties. The mere objection to the legality of the demand, would not be sufficient to authorize the agent to require an indemnity from his principal, or to defend himself against a suit brought by his principal. Nor is it sufficient to put the agent on his guard, and oblige him to keep the money for six years, until an action is barred by the statute of limitations. There can be no inconvenience, or hardship, in requiring a precise and formal notice to the officer, or agent, of the intention to resort to him, to recover back the money paid. Such a notice would prevent all difficulty. But if a mere objection to the legality of the demand is held to be sufficient, attorneys, and other agents who receive money, may be made responsible, after a lapse of years, when their principals may be dead, insolvent, or removed out of the state.
    The defendant is not the superior officer. He acts, with the ¿aval officer, in subordination to the secretary of the treasury. But a superior officer is entitled to more protection, for he cannot sue the government; but an inferior agent may sue his principal.
    
      This is an equitable action, and any equitable defence is sufficient to defeat it. The defendant acted bona fide, in discharge of his duty. The plaintiffs have acted negligently, in not making the proper inquiry as to the liability of the vessel to pay the duties, and in not giving the defendant notice, in season, not to pay the money over.
    It is said that the duties are demandable only on the entry of the vessel; but as this vessel entered in distress, under the special provisions of the act, it could not have been foreseen that she would make herself liable, by breaking up her voyage, to the payment of the duties.
    This was a foreign ship at the time of her entry, and the tonnage duty must have reference to her character at that time. All vessels, except those belonging to the United States, or registered vessels, pay 50 cents tonnage duty, or light money. The act (8 Cong. sess. 2. c. 99.) which exempts unregistered ships, owned by citizeiis of the United States, from the operation of the act (8 Cong. sess. 1. c. 57.) imposing light money, has reference to vessels bona fide possessing a sea-letter, or regular documents issued from the custom-house, proving the property American, and entering from some foreign port or place, as sea-letter vessels.
    Again, it is said that the plaintiffs, who have purchased this vessel at public auction, ought not to pay this duty. But they are the owners of the vessel; and the duty may be considered as a lien on the ship. How could a suit be maintained against the original owner? The collector may detain the ship’s papers until the duties are paid; and why may he not detain the ship, or refuse a clearance, in such case ?
    
      
      
        Laws of U. S. vol. 1. p. 144.
    
    
      
      
        Laws of U. S. vo1. 2. p. 131.
    
    
      
      
        Laws of U. S. vol. 7. p. 152.
    
    
      
      
        Laws of U. S. vol. 4. p. 279-377.
    
    
      
      3 Ld. Raym. 12;0. 4 Burr. 1985 2 Cowp. 565. 4 Term Rep 553 Chitty's Plea. 25.
      
    
    
      
      
        Cowp. 204
    
    
      
      Cowp. 66.69. S.C. Loft, 529.
    
    
      
       Cowp. 805.
    
    
      
       Parker's Rep. 198.
    
    
      
       4 TermRep. 355.
    
    
      
       Burr, 1984
    
    
      
       Cowp. 565.
    
    
      
      
        Laws U. S. vol. 4. 279, 5 Cong. sess. 3. c. 128. s. 21.
    
    
      
       4 Burr. 1986.
    
    
      
      
        Chitty on Plead. 25.
      
    
    
      
      
        7Johns.Rep. 179.
      
    
   Per Curiam.

The principal question here is, whether the defendant was authorized to demand the money which he exacted of the plaintiffs, as the tonnage or light money of the ship they had purchased. The ship arrived in the port of New-York in distress, and was entered in September, 1809, and being condemned and sold by the wardens of the port, the sum in question Tras exacted, on the clearance of the ship, on another voyage, in May, 1810.

The law (Laws of U. S. vol. 4. 384.) requires tonnage to be paid at the time of entry, and no permit to unlade is to be granted until the duty is paid. This is the general rule on the subject 5 and light money on the entry of foreign vessels, is to be levied in the same manner as tonnage. (Laws of U. S. vol. 7. 157.) But there is a special provision for the case of vessels arriving in distress. They are to be unloaded free of duty when there is a necessity for it, and when the goods are reladen, the ship may proceed “ to the place of her destination,” free of any other charge th 'ri what relates to the storage of the goods, &c. (Laws of U. S. vol. 4. 377.) The statute does not provide especially for the case in which the ship so arriving in distress is necessarily condemned and sold, and the voyage broken up; but the reason of the exemption seems to apply. The permit to unload the goods from the ship, without exacting the tonnage, is an admission of the exception. If tonnage be not due when the ship so arriving in distress is repaired, and enabled to renew her voyage, it would be inconsistent and unjust to demand it, when she was so disabled as to be incapable of repair, or of renewing the voyage. This would be to waive the duty in the case of a moderate, and require it in case of an extreme calamity to the ship. When the plaintiffs purchased the ship, they did not purchase her with this tonnage duty as a lien attached to her. Suppose her very wreck had been purchased, and a new ship had been built on the same keel and with the same name, would any person have thought of tho tonnage duty ? The very entry of the ship in distress and landing of the goods, seems to have put an end to the tonnage duty, provided there was no collusion or bad faith in the transaction, and the voyage was interrupted, or finally broken up, from the necessity of the case.

The tonnage or light money in question was, at any rate, wrongfully demanded of the plaintiffs as a condition of the clearance, and that being established, they are entitled to recover it back in this action, without showing any notice to the defendant not to pay the money into the public treasury. The cases which exempt the agent from the suit, if he has, in the mean time, paid over the money to his principal, without notice, do not apply. Here is no person but the defendant, against whom the suit could, in any event, be brought, and the money was paid by compulsion. It was ex - torted as a condition of granting the clearance, and not paid with the intent or purpose that the collector should pass it to the credit of the United States. The case of Snowdon v. Davis, (1 Taun. 359.) lays down this just distinction, that notice to the agent is ndt requislte, in the case of a compulsory payment, and one not made expressly for the use of the principal. The plaintiffs are, accordingly, entitled to judgment.

Judgment for the plaintiffs.  