CANTZLER ET ALS vs. GORDON, 6 La. 258

Martin, J., delivered the opinion of the court.

The plaintiff’s state they imported a quantity of iron, and for the purpose of obtaining a permit for landing the same, subscribed a blank, according to the usage of the custom house, and the defendant, who is collector of the revenue, filled the blank left for the insertion of the amount of the duties, for a larger sum than that which was by law chargeable therefor, and the bond being lodged for collection in. the branch bank of the United States; the defendants, in order to avoid the inconvenience of losing for a while the facility of bonding future duties, took up their bonds, after having objected to the amount claimed, and after having notified the defendant of their intention of claiming the excess of duty from him personally.

The defendant filed the following exceptions to the petition. I. That no person or persons bearing the name or names the plaintiffs respectively sue upon, made an importation of iron, as alleged. II. That the defendant acted as collector of the revenue, and an officer of the United States, and therefore, is not responsible personally, for money received for and paid to them. These exceptions were sustained, and the petition dismissed, whereupon the plaintiff appealed.

Their counsel in this court, has contended that the first exception was merely a plea on the merits, as if the plaintiffs did make the alleged importation, they cannot support their cause. When a collector of the revenues has exacted higher duties than permitted by law, his payment of them after a claim made on him for the excess, does not chango his liability for that excess. The counsel' has further relied, as to the other exception on the decision of the Supreme Court of the state of New York, in the cases of Lefon vs. Swartout, and Grinnel et al. vs. The Same, which he has read from two newspapers.

On the part of the defendant, it lias heen contended that little weight ought to be given to- newspaper reports, and he has endeavored to distinguish the present case from those in New York.

In these the defendants objected to the sum claimed, before they signed) the bands,, and the collector parted with the money, after they had been notified of the intention to claim-the excess, and after the institution of the suit, while in- the present case, the notification is indeed alleged, but not proved, that the suit was not instituted till a very long time after the payment of the money by the collector, to- the proper department. It has heen further urged, that the agent who discloses the the name of his principals does- not hind- himself personally by that contract. 2 Kent's Com. 629, 632. La.

Code 981, 2. Lastly, it has heen held, that one who receives a sum, due to a third party, and pays it over; incurs no- personal responsibility. It has appeared to us, the present case cannot be materially distinguished from those in New York.

It is true, in the present, no objection was made before the- signature of the bond; because no objection had- then occurred; the objection could not be made till the plaintiffs had knowledge of the illegal charge, and the objection was made before the plaintiffs took up- their bond, and the- notification of their intention to claim the excess from the defendant, personally, was made, or at least is alleged to have been then made. If is true, in the New York cases, the collector paid the moneyover before the-institution of the suit, while the defendant did so, long before the commencement of the present suit.

The party claiming the money, before its being paid over, may avail himself of the institution of the suit, because it is evidence of ‘ the knowledge he has'given of his claim; so he may of any other mode use to afford that knowledge. If a collector of the revenue insert in the blank bond for duties, signed and left with him, a larger sum than is due the United States, according to the laws of Congress, he exceeds his powers as agent of the United States, and renders himself personally responsible, even although he acted through error.

In the present case, the payment made by the defendant, cannot dissolve his obligation to the plaintiffs, if by his previous conduct he has incurred any. It is, however, contended he did not incur any, by the overcharge, because he disclosed the name of his principal, as was known to the plaintiffs as a mere agent.

He was indeed the agent of the United States, in procuring, according to the usage of the custom house, the signature of a blank bond, and in doing so, he acted within his powers; this authority was to fill the blank left for the amount of duties to be paid by the insertion of a sum equal to the claim of the United States, according to the law of Congress; if he inserted a larger sum, he exceeded that authority, and nothing is clearer, than that the agent who exceeds his powers, renders himself personally responsible.

In passing upon exceptions, pending on tbe dismissal of an action, without a trial, the truth of the allegations of the petition, must he assumed, because none of them are denied. If, therefore, the plaintiffs were compelled by the illegal act of the defendant, to pay higher duties on their importation, than were imposed by law, he did him an injury to the amount of tbe excess, even although he did so through error.

Admitting that if before he discovered his error, his payment of the whole amount of the sum they paid, could have protected him if he did so, after his attention was drawn to his mistake, and after he had received notice of the plaintiffs’ intention to claim from him personally the excess, he cannot avail himself of his payment. The judge a quo, in our opinion, erred in sustaining the exceptions.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be annulled, avoided and reversed, the exceptions overruled, and the case remanded for further proceedings, according to law, the defendants paying costs in this court