No. 2123. | Somerville Railroad Company, by John Kean,

could have been only applicable to himself. But
it is enough for the purposes of the defendant
to establish that there existed, on the face of the
paper, circumstances from which it might rea-
sonably be inferred that it was either one or the
other. In that case, it became indispensable to
resort to extrinsic evidence to remove the doubt."

The reasoning of the court in this last case
leads irresistibly to the conclusion that, had the
check under consideration been signed by Paton
with the word "cashier" appended, there would
then have been no ambiguity in it, but it would
have been clearly and unequivocally the check
of the bank. And in this view the case seems
to be not necessarily an authority in favor of the
plaintiffs in error, but rather an authority
against them, and in favor of the defendant in

error.

(See S. C. Reporter's ed. 607-614.)

protest-Acting Secretary.

1. Charges for transportation of goods imported
from one country, which on their passage may
pass through another country, should not be added
to the invoice value of the article to make their du-
tiable value, under section 2907, Revised Statutes,
and section 14 of the Act of June 22, 1874.
2. A regulation of a department of the govern-
ment is not to control the construction of an Act
of Congress when its meaning is plain.

In Daniel on Negotiable Instruments, § 415,
it is said: "If a note be payable to an individ- Duty Act-construction-regulation-time of
ual, with the mere suffix of his official charac-
ter, such suffix will be regarded as mere de-
scriptio persona, and the individual is the
payee," citing Chadsey v. McCreery, Vater v.
Lewis, supra, and Buffum v. Chadwick, 8 Mass.
103. Continuing, he says, "In New York a
different doctrine prevails," citing Babcock v.
Beman, 11 N. Y. 200. But in § 416 the rule
laid down would seem to be in favor of the
contention of the defendant in error; for it is
there said: "Where a note is payable to a cor-
poration by its corporate name, and is then in-
dorsed by an authorized agent or official, with
the suffix of his 'ministerial position, it will be
regarded that he acts for his principal, who is
disclosed on the paper as the payee, and who,
therefore, is the only person who can transfer
the legal title," citing Northampton Bank v.
Pepoon, 11 Mass. 288, and Elwell v. Dodge, 33
Barb. 336.

Many more authorities are cited and might be dwelt upon almost ad infinitum. A discussion

3. But when there has been a long acquiescence in
such a regulation, and by it rights of parties for
many years have been determined and adjusted, it
is not to be disregarded without the most cogent
and persuasive reasons.

ties have been finally liquidated, and not from a
4. The time to protest begins to run when the du-
previous liquidation which has been abandoned.

5. The acknowledgment of the Acting Secretary,
who decided the appeal, is sufficient to show wheth-
er any appeal was taken, and also the affirmance of
the decision of the Collector.

[No. 267.]

Argued April 27, 1888. Decided May 14, 1888.

of all of them would greatly protract this IN ERROR to the Circuit Court of the United

opinion, and would subserve no beneficial result. In all this vast conflict-we had almost [([607] said anarchy-of the authorities bearing on the question under consideration, it is not easy to lay down any general rule on the subject which would be in harmony with all of them. It seems to us, however, that the case of Hitchcock v. buchanan, supra, controls the case at bar. Both involve the same principles, and the decision in this, to be consistent with that of the former, must sustain the contention of the defendant in error. Neither do we think that the case of Mechanics Bank v. Bank of Columbia, supra, when considered in the light of the facts upon which it is based, in anywise conflicts with this conclusion.

We conclude therefore, that the notes involved in this controversy, upon their face, are the notes of the corporation. In the language of the court below, they were "drawn by, payable to, and indorsed by, the corporation." There is no ambiguity in the indorsement, but, on the contrary, such indorsement is, in terms, that of the Peninsular Cigar Company.

This being true, it follows that the court below was right in excluding from the jury the evidence offered to explain away and modify the terms of such indorsement. White v. Miners Nat. Bank, 102 U. S. 658 [26:250]; Martin v.

States for the Southern District of New York, to review a judgment in favor of plaintiffs, in an action to recover back an excess of duties exacted. Affirmed.

The facts are stated in the opinion.

Mr. G. A. Jenks, Solicitor-Gen., for plaintiff in error.

(No counsel appeared for defendants in er

ror.)

[60%

Mr. Justice Field delivered the opinion of [608] the court:

The plaintiffs below, the defendants in error here, in March, 1882, imported into the United States at the Port of New York 5,179 packages of steel rods from Mulheim, in Germany. They were shipped at the Port of Antwerp, in Belgium, to which place they were brought by rail from Mulheim, where they were made. Antwerp is distant from the frontier of Germany between forty and fifty miles, and from Mulheim two hundred miles. The appraisers added to the invoice price of the articles at Mulheim eleven marks per ton to make the dutiable value of the articles, and four marks per ton for the charges incurred in their transportation to Antwerp. Upon their appraised value, including these charges, the defendant, who was at the time Collector of the Port of New York, on the 5th of May, 1882, ascer

[609]

[610]

tained and liquidated the duties. Subsequent- The question of importance presented is
ly, a reliquidation was made, by which two and whether, under the statute, charges for trans-
one-half per cent was deducted from the eleven portation of goods imported from one country,
marks. This reliquidation was completed on which on their passage may pass through an-
the 24th of May, 1882. Two days afterwards other country, should be added to the invoice
the plaintiffs made a formal protest against in-value of the articles to make their dutiable value
cluding in the dutiable value of the goods any under section 2907 of the Revised Statutes, and
sum for charges or otherwise in addition to the section 14 of the Act of June 22, 1874. Section
value stated in the invoice; but adding that they 2907 provides that "in determining the dutiable
should pay the amount exacted, in order to get value of merchandise, there shall be added to
the goods, and then claim to have it refunded. the cost, or to the actual wholesale price or
On the trial the plaintiffs put in evidence let- general market value at the time of exportation
ters from the Acting Secretary of the Treasury, in the principal markets of the country from
against the objection of the government, to whence the same has been imported into
show that an appeal was taken to the Secretary the United States, the cost of transportation,
from the decision of the Collector, and that it shipment and transhipment, with all the ex-
was affirmed. The counsel of the government penses included, from the place of growth, pro-
excepted to their admission. The following duction, or manufacture, whether by land or
are the letters:
water, to the vessel in which shipment is made
to the United States; the value of the sack, box,
or covering of any kind in which such mer-
chandise is contained; commission at the usual

"TREASURY DEPARTMENT,

OFFICE OF THE SECRETARY, Washington, D. C., August 14, 1882. "Collector of Customs, New York.

"Sir: The department is in receipt of your letter of the 27th ultimo, submitting the appeal (1996,2050 H) of Messrs. Downing, Sheldon & Co., from your assessment of duty on additions made by the appraiser to the invoice and entered value of certain steel wire rods imported by them per Hermann, March 9, 1882.

"The appraiser reports that an addition was made by him for charges under the depart ment's decision of July 20, 1880 (S. S. H 4617), for the reason that the invoice did not state that the price of the merchandise was 'free on board,' and that an addition for value was also made by him to make the usual mar

ket value of the merchandise.

"Your assessment of duty thereon is hereby

affirmed.

"Very Respectfully, H. F. FRENCH,
Acting Secretary."

"TREASURY DEPARTMENT,

OFFICE OF SECRETARY,

rates, but in no case less than two and a half
all other actual or usual charges for putting up,
per centum; and brokerage, export duty and
preparing and packing for transportation or
shipment."

Stat. at L. 189, provides "that wherever any
Section 14 of the Act of June 22, 1874, 18
statute requires that, to the cost or market value
into the United States, there shall be added to
of any goods, wares, and merchandise imported
the invoice thereof, or, upon the entry of such
goods, wares and merchandise, charges for in-
land transportation, commissions, port duties,
expenses of shipment, export duties, cost of
such goods, wares, and merchandise, or any
packages, boxes, or other articles containing
ing, shipping, or exportation thereof from the
other incidental expenses attending the pack-
country or place where purchased or manufac-
defraud the revenue, to add and state the same
"tured, the omission, without intent thereby to
on such invoice or entry shall not be cause of a
forfeiture of such goods, wares, and merchan-
dise, or of the value thereof; but in all cases
where the same, or any part thereof, are omit-
ted, it shall be the duty of the collector or ap-
praiser to add the same, for the purposes of
duty, to such invoice or entry, either in items
or in gross, at such price or amount as he shall
deem just and reasonable (which price or
amount shall, in the absence of protest, be con-
clusive), and to impose and add thereto the fur-
ther sum of one hundred per centum of the
price or amount so added; which addition shall
constitute a part of the dutiable value of such
goods, wares, and merchandise, and shall be
collectible as provided by law in respect to du-
ties on imports.'

Washington, D. C., August 12, 1882. "Messrs. DOWNING, SHELDON & Co. (care of Kausche & Downing, P. O. box 3550, N. Y.) "Gentlemen: This department is in receipt of your appeal (No. 2050 H), dated May 25, 1882, from the decision of the Collector of the Port of New York, assessing duty on certain merchandise, imported per Hermann, March 9, 1882.

"In reply, you are informed that the case
has been disposed of by instructions this day
addressed to the Collector of customs at the
port mentioned, to whom you are referred for
particulars.

"Respectfully, H. F. FRENCH,
Acting Secretary."

The decision of the Secretary was made Au-
gust 12, 1882. The plaintiffs paid the amount of
duties exacted, and in October following
brought the present action. The jury found
in their favor for $130.96. The court, by con-
sent of parties, reduced this sum to $47.64, and
judgment for that amount, besides costs, was
entered. This reduction was made, as we in-
fer from the record, so as to cover only the in-
creased duties exacted by reason of the addi-
tion for charges on transportation to Antwerp. |

In the execution of these statutes the Treasury Department has heretofore uniformly construed them to apply, so far as inland transportation is concerned, only to such transportation where the place of the growth, production, or manufacture of the article is in the same country as the port from which the vessel sails on which the shipment is made, and not where such transportation is through other countries to reach a place of shipment. Thus, in a decision rendered September 12, 1882, where goods were forwarded from Brodenbach, in Austria, to Hamburg, transshipped to Hull, and

[611]

[612]

then placed on the import vessel, the journey | ernment counsel we do not think tenable. The
to the United States being continuous, the ap- duties were not finally liquidated until the 24th
pellants claimed that no charges accruing after of May, 1882. The time to protest did not be-
the goods left Austria should be added to make gin to run until then. The previous liquida-
dutiable value, and the Treasury Department tion on the 5th of May was necessarily aban-
sustained the claim, observing as follows: doned by the corrections subsequently made.
The letters of the Acting Secretary were suffi-
cient evidence of the appeal from the decision
of the Collector. The question was not as to the
contents of the appeal, but whether any appeal
was taken. The acknowledgment of the Act-
ing Secretary, who decided the matter appealed,
was sufficient for that purpose, and also of the
affirmance of the decision of the Collector.
The bill of exceptions also states when the de-
cision of the Secretary was made. Of course
that presupposes the receipt by him of the ap-
peal. The date of "May 25th," in the letter of
August 12, 1882, was evidently a misprint for
"May 27th." But, if it were not so, the Treas-
ury Department not having seen fit to place its
decision upon the ground that the appeal was
too early, we must assume that there was good
reason for its action.
Judgment affirmed.

"This claim seems to be well founded, in view of the long established practice in such cases, and of articles 434-444 of the Regulations of 1874, which provide in substance that in the case of merchandise imported from an interior country through the ports of another country, or from the country of its production, manufacture, or procurement via another country, no charges shall be added for transportation accruing after the departure of the merchandise from the country of production, if the collector shall be satisfied that the merchandise was exported from such country with a bona fide intention of having it transported to the United States."

A decision by the department, made some years before, also illustrates the construction when the two places, that of production and that of shipment, though separated from each other by water, belong to the same country. The charges for railroad and steamboat transportation of goods from Dundee, in Scotland, to Liverpool, in England, were added to the invoice price to make the dutiable value of the articles imported into this country. The importers objected to these charges, and cited article 441 of the Regulations of 1874, referred to in the above decision, in support of their claim; but the Treasury Department held that the regulation was applicable only where the goods were transported to some port of another country from the country of production for shipment to the United States, by a practically continuous voyage, and was not applicable to shipments from Scotland through England, which are, to all intents and purposes, the same country.

This construction of the Treasury Depart[613] ment we think a sound one. It places articles which are the growth, product, or manufacture of countries whose ports of easy shipment are found in other countries through which the goods must be carried, on a basis of equality with the products of those countries which have convenient ports of shipment. To preserve this equality the shippers are not obliged to confine their shipments to their own ports, when ports of other countries would be equally or more convenient to them. This construction of the department has been followed for many years, without any attempt of Congress to change it, and without any attempt, as far as we are advised, of any other department of the government to question its correctness, except in the present instance. The regulation of a department of the government is not of course to control the construction of an Act of Con

gress when its meaning is plain. But whe-
there has been a long acquiescence in a regula-
tion, and by it rights of parties for many years
have been determined and adjusted, it is not to
be disregarded without the most cogent and
persuasive reasons. U. S. v. Hill, 120 U. S.
169, 182 [30: 627, 632]; U. S. v. Philbrick, Id.
52, 59 30: 559, 561]; Brown v. U. S. 113 U. S.
568, 571 [28: 1079, 1080].

The technical objections taken by the gov

FANNIE B. ALLEN, Appt.,

v.

HENRY F. GILLETTE.
(See S. C. Reporter's ed. 589-596).

Trustee, purchase by-executors and administra
tors-judicial sale-devisee, mortgage by.

1. A trustee or person acting in a fiduciary char-
acter for the benefit of others cannot become a
purchaser at his own sale, or acquire any interest
special permission given by a court of competent
therein without the express consent, or under a
jurisdiction.

2. This rule applies to executors and administrators, who are not permitted to derive a personal benefit from the manner in which they transact the business or manage the assets of the estates intrusted to them; but whatever advantage is derived by them from a purchase at an undervalue is for the common benefit of the estate.

3. A trustee may purchase the trust property at a judicial sale brought about by a third party, which he could not have had control. This is the which he has taken no part in procuring, and over rule in Texas.

4. The disposition which a single creditor may
make of his debt against the estate, or which a dev-
terfere with the executor's control of the estate for
isee may make of his interest therein, cannot in-
the payment of debts, or for partition among dev-
isees.

lands of the estate, a sale under the mortgage does
5. Where a devisee mortgaged her interest in the
not withdraw from the estate any lands subject to
debts, or to partition among the devisees; and the
executor occupies no relation of trust or confidence
[No. 277.]

to the transaction.

Argued May 3, 1888. Decided May 14, 1888.

APPEAL from a decree of the Circuit Court
of the United States for the Eastern Dis-
trict of Texas, dismissing a suit to redeem land
from sale under a deed of trust. Affirmed.

The facts are stated by the court.

Messrs. J. T. Brady and H. F. Ring, for appellant:

The relationship between Mrs. Allen and Gillette was that of trustee and cestui que trust. 2 Pom. Eq. 482; Ex parte Lacey, 6 Ves. Jr. 627.

[614]

[589]

1590]

Erskine v. De La Baum, 3 Tex. 417; Howards v. Davis, 6 Tex. 174; Marsh v. Hubbard, 50 Tex. 203; Connolly v. Hammond, 51 Tex. 635; Michoud v. Girod, 45 U. S. 4 How. 560 (11:1101); Stephen v. Beall, 89 U. S. 22 Wall. 339 (22:788); Wormley v. Wormley, 21 U. S. 8 Wheat. 441 (5: | 656).

The trustee may not purchase the trust prop-ing said will and filing inventory and appraise-
erty for his own benefit when it is sold under ment of the property, to administer the estate
a judicial decree.
without any accountability to any judge or
court. Gillette and Ball on being duly quali-
fied entered upon the management of the estate.
On the 13th day of June, 1872, complainant
and her husband, H. A. Allen, gave their note
for $1,200, payable six months from date, with
12 per cent interest, to the Banking and Insur-
ance Company of Galveston, to secure the pay-
ment of which note they also executed a deed
of trust on all complainant's interest in the vari-
ous tracts of land described in said deed belong-
ing to the estate. Complainant and her husband
being unable to pay said note when it became
due, the deed of trust was foreclosed, her in-
terest in said estate was sold thereunder, and
the said defendant, Gillette, became the pur-
chaser of said interest at the foreclosure sale.

A trustee buying a debt or incumbrance against the estate held by him in trust can only be allowed the amount actually paid therefor, with interest.

Lewin, Law of Trust, 289; Darcy v. Hall, 1 Vern. 49; Van Epps v. Van Epps, 9 Paige, 237; Torrey v. Bank of Orleans, 9 Paige, 649; Dickinson v. Codwise, 1 Sandf. Ch. 214; Settembre v. Putnam, 30 Cal. 490; Hall v. Van Ness, 49 Pa. 457; Campbell v. Campbell, 21 Mich. 438; King v. Cushman 41 Ill. 31; Harrold v. Lane, 53 Pa. 269; Heath v. Page, 63 Pa. 108; Holmes v. Campbell, 10 Minn. 401.

Mr. T. N. Waul, for appellee:

This case is to be decided by the lex loci rei sitæ.

Hinde v. Vattier, 30 U. S. 5 Pet. 401 (8:170); Van Ness v. Pacard, 27 U. S. 2 Pet. 137 (7:374); Wheaton v. Peters, 33 U. S. 8 Pet. 591 (8:1055); Kendall v. U. S. 37 U. S. 12 Pet. 524 (9:1181); Pennsylvania v. Wheeling & B. Bridge Co. 54 U. S. 13 How. 518 (14:249); Neves v. Scott, Id. 272 (14:142); U. S. v. Eckford, 73 U. S. 6 Wall. 484 (18:920); Brinev. Hartford F. Ins. Co. 96 U. S. 627 (24:858); Orvis v. Powell, 98 U. S. 177 (25:238).

The complainant alleges, at length, that, being poor and in needy circumstances, arising [591] from the failure and refusal of said defendant to settle up the said estate so as to let her have her portion thereof, or to render it available to relieve her pressing necessities, she was induced by the advice of said defendant to borrow said money from the bank and to execute the said note and deed of trust, which she would not have done but for defendant's promise to make her said interest in the estate available, so as to pay off said note, and thus prevent the sale under the deed of trust. She further alleges that, by withholding from her information as to the condition and value of the estate and making no reports to the court, the defendant obtained an undue advantage over her, and was thereby enabled to bid in her interest for much less than it was worth at the time of the sale. After alleging other circumstances of wrong2 Bish. Mar. Wom. § 399; Mitchell v. Mitch-ful conduct and dereliction of duty, she states ell, 35 Miss. 108; Mobley v. Leophart, 47 Ala. 259; Bolling v. Mock, 35 Ala. 727; O'Brien v. Foreman, 46 Cal. 80; Cravens v. Booth, 8 Tex. 248.

The acts of the husband were those of the wife's trustee, fixed by law with the control of the separate property.

While the law extends its protection to the rights of a married woman, it does not permit her to act fraudulently or inequitably to the injury of others.

Chubb v. Johnson, 11 Tex. 469; Allen v. Urquhart, 19 Tex. 480; Berry v. Donley, 26 Tex. 737; Baily v. Trammell, 27 Tex. 328; Fitzgerald v. Turner, 43 Tex. 79; Ryan v. Maxey, Id.

192.

Mr. Justice Lamar delivered the opinion of the court:

This is a suit in equity in the Circuit Court
of the United States for the Eastern District of
Texas. The bill sets forth that complainant,
Fannie B. Allen, a citizen of Kentucky, is the
granddaughter of James Morgan, who died in
1866 seized and possessed of an estate of 70,000
acres of land, and a homestead in Galveston,
with some personal property. The land was
unproductive and scattered throughout the
State. The deceased devised his property to
seven grandchildren, of whom complainant
was the oldest, and who in 1866 married at the
age of seventeen years.

By the terms of the will, Henry F. Gillette,
Ceorge Ball, both of Texas, and W. H. N.
Smith, of North Carolina, were appointed ex-
ecutors. They were authorized, after probat-

that, owing to enforced absence from Texas,
to her poverty, and to the ignorance in which
she was kept as to the real facts relative to her
father's estate, it was not until a few months
before this suit was commenced that she, by
accident, discovered that she had any lawful
claim to recover of said defendant her interest
in the lands purchased by him.

The bill closes with the prayer that she be
allowed to redeem said land from the said de-
fendant, Gillette, by paying said purchase
money, and that, in the event of her being un-
able to redeem it within such reasonable time
as the court might direct, then that the land
be resold for her benefit, paying the defendant
the amount of his advances and interest; that
the said defendant be required to answer, un-
der oath, cach and every allegation of the bill,
and to make a full account of all his actings
and doings as executor of Morgan's estate.

The defendant denies the allegation that the note and mortgage were executed by said complainant at his (defendant's) suggestion, by his advice, or with his approval, and alleges, in specific detail, that each and all the statements in the bill as to his (defendant's) conversations, actions or privity with said complainant and her husband, or said company, in any manner leading to or connected with said loan, note, and trust deed, are wholly untrue and unfounded; and avers that he was entirely igno rant of the borrowing of the said money and of the execution of said note and deed of trust,

[592]