William H. Tracy and John B. Balestier, plaintiffs in error v. Samuel Swartwout, 10 Pet. 80

Mr. Justice McLean delivered the opinion of the Court. This case is brought into this court by a writ of error to the circuit court for the. southern district.of New York. The suit was prosecuted in that court to recover damages from the defendant, who, as collector of the customs, had refused to allow the plaintiffs to enter and receive the payment of the lawful duties, on certain casks of sirup of sugar-cane ; which they had imported into the port of New York. It is admitted that the law imposed no more duty on the

article than fifteen per cent, ad valorem ; although the collector, aeting under the instructions of the Secretary of the Treasury, required bond for the payment of the above duty, or, should it be.'required, a duty of three cents per pound. No bond was given, and the sirup remained in the possession of the collector for a long time; by which means its value was greatly deteriorated.

The question for consideration arises out of a bill of exceptions, in which thé evidence is stated at large; showing the quality of the sirup, the number of gallons imported, and the refusal of the defendant to take bond for the fifteen per cent, ad valprem duty. It was admitted by the counsel of the plaintiffs, that the defendant acted throughout with entire good faith ; and under instructions from the treasury- department.

The plaintiff’s counsel offered to prove that they were unable to give bonds for duties at three cents per pound ; though they did not state that fact, to the defendant, at the time they offered to make the entry.

The court overruled this testimony, and instructed-the jury, “ that, admitting the merchandise in question was only subject to an ad valorem duty of fifteen per cent., yet the circumstances under which the dispute about the rate of duties arose, ought not to subject the collector to the payment of' more than nominal, damages ; that the collector was pursuing what he believed to be the true construction of the law; and whatever injury the plaintiffs may have sustained in not receiving their goods at an earlier day, grew out of their own conduct in not entering the goods in the manner offered by the collector, at fifteen per cent, ad valorem, taking the bond, however, to receive the payment of three cents per pound, if such should be the legal rate of duties demandable; merely placing the case in. a situation to,have the question judicially decided, as to the rate of duty, no intimation at the time being given that it would occasion any inconvenience to the plaintiffs to give the bond so required by the collector.” Under this instruction the jury found a verdict for six cents damages and six cents costs.

There can be no doubt that the circuit court decided correctly in overruling the evidence of inability in the plaintiffs to give the bond demanded by the defendant. The materiality of this evidence is not perceived; and if it had been material, it ought not to have been received; unless the fact of inability had been made known to the defendant at the time the bond was required.

In the argument, objections were made by the defendant’s counsel, to the sufficiency of the counts in the declaration ; but these do not necessarily come before us in the present posture of the case ; and should the judgment of the circuit court be reversed and the cause remanded for further proceedings; if the pleadings be deemed defective, the parties, with the leave of the circuit court, may amend them.

The collector of the customs is a ministerial officer: he acts under the instructions .of the secretary of the. treasury, who is expressly authorized to give instructions, as to the due enforcement of the revenue laws. Do these instructions,, when not given in accordance with the law, afford a justification to the collector, or exonerate him from the payment of adequate damages for an injury resulting from his illegal acts ? The circuit court in their charge to the jury, did not consider these instructions as a justification.to the defendant; and in this they were unquestionably correct..

The secretary of the treasury is bound by the law; and although in the exércise of his discretion he may adopt necessary forms and modes of giving effect to the law : yet, neither he nor those who act under him, can dispense with, or alter any of its provisions. It would be a most dangerous principle to establish, that the acts of a ministerial officer, when done in good faith, however injurious to private rights, and unsupported by law, should afford no ground for legal redress. The facts of the case under consideration, will forcibly illustrate this principle.

The importers offer to comply with the law, by giving bond for the lawful rate of duties; but the collector demands a bond in a greater amount than the full value of the cargo. The bond is not given, and the property is lost, or its value greatly reduced, in the hands of the defendant, Where a ministerial officer acts in good faith, for an injury done, he is not liable to exemplary daiúages; but he can claim no further exemption, where his acts are clearly against law. The collector has a right to hold possession of imported goods until the duties are paid or secured to be paid, as the law requires.

But, if he shall retain possession of the goods, and refuse to deliver them after the duties shall be paid, or bond given, or tendered, for the proper rate of duties, he is liable for the damages which may be sustained.by this refusal. On the part of the defendant it is insisted that the charge of the circuit court was on the facts of the case, and was limited to an expression of ah opinion on those facts, without any direction as to any matter of law. A court may not only present the facts proved, in their charge to the jury; but give theii; opinion as to those facts, for the consideration of the jury.

But, as the jurors are the triers of facts, such an expression of opinion by .the court should be so guarded as to leave the jury free in the exercise of their own judgments. They should be made distinctly to understand,' that the instruction was not given as a point of law; by which they were to be governed; but as a mere opinion, as to the facts, and to which they should give no more weight than it was entitled to. And if a fair construction, of the charge complained of shall amount to no more than this, it is liable to no valid objection.

The correctness of every charge must depend upon the phraseology used by the court; and of course but little aid, from adjudicated cases, can be, expected in a case like the present.. In 3 Burr, 1742, a charge of Lord Camden, when chief justice of the C.

B. is given, as follows: “ And the said chief justice did then and there declare and deliver his opinion to the jury, that the said several matters so produced and proved, on the part of the defendants, were not upon the whole case sufficient to bar the action, and with that opinion left the same ta the jury.” This instruction, in the language of Chancellor Kent, 12 John. 518, has always been “ taken and received as. a direction in a point of law.” In the instruction under consideration the court say to the jury that, “ admitting the merchandise in question was only subject to an ad valorem duty of fifteen per cent., yet the circumstances undér which the dispute about the rate of duties arose ought not to subject' the collector to the payment of more than nominal damages.” “ That the collector was pursuing what he believed to be the true construction of the law, and whatever injury The plaintiffs may have sustained in not receiving their goods at an earlier day, grew out of their' own conduct in not entering the goods in the manner offered by the collector, at fifteen per cent, ad valorem, taking the bond, however, to secure the payment of three cents per pound,” &c.

This language seems to be susceptible of but one construction, and that is, that as the plaintiffs refused to give the bond required by the •collector, who acted in good faith, they ought to recover no more than nominal damages. That the jury considered this direction as controlling their, verdict; is clearly shown'by the damages which they assessed. And, indeed, it is not perceived how they could have given any other effect to the charge. . It covered the whole case, and must have been received by the jury as a direction on the law of the case. In what other light could they have considered it...

The court did not say that exemplary damages ought not to be given ; but that, under the facts and circumstances of the case, no more than nominal damages should be assessed. The facts of the case were clearly established, and,indeed, were not controverted; and the amount of damages was the only matter for the investigation of the jury. On this point the jury should have exercised their own discretion, aided, if necessary, by the opinion of the court in relation to matters of fact; and controlled by their direction, in matters of law.

But the jury were told, as the effect of the whole evidence, that they ought to give nominal damages only. The collector, in point of law*, had no right to demand a bond for more than the duties at the rate of fifteen per cjent. ad valorem ; and the plaintiffs were under, no obligation to give bond in. a greater sum. And the fact of having failed to give such illegal bond was not a circumstance which should have lessened the plaintiffs’ damages ; nor, in point of law, should the good faith in which the defendant seems to have acted, exempt him from compensatory damages. In the case of Greenleaf v.

Berth, 9 Peters 299, the counsel prayed the court to instruct the jury that “ the evidence was not sufficient to prove that the said contract between Nicholson and Greenleaf, on the one part, and W. Stewart, on the other, had been annulled or rescinded between the parties, at any time prior to the execution of the deed by the plaintiff to Morris and Nicholson in May, 1796.” And this court say, “ if this instruction be considered as asking the court tq determine on the effect of the evidence, it was properly refused.

If is the province of the jury to weigh and decide on the sufficiency of the evidence; and from the words of the instruction it would seem to be conceded there was some evidence of the recision of the contract, as the court were asked to instruct the jury that the evidence was not sufficient to prove the fact. Where there is no evidence tending to prove a particular fact, the court are bound so to instruct the jury when requested; but they cannot legally give any instruction which shall take from the jury the right of weighing the evidence, and determining what effect it shall have.

In this view the circuit court did not err in refusing the above instruction.” And again, in the case óf the Chesapeake and Ohio Canal Company v. Knapp, and others, 9 Peters 567, this court say, “but it is insisted that in.their instruction, the court lay down certain facts as proved, which should have been left to the jury.

If this objection shall be sustained, by giving a fair construction to the language cf the court, the . judgment must be reversed ; for the facts should be left with the jury, whose peculiar province it is to weigh the evidence and say what effect it shall have.” In some cases .it may be difficult to determine whether an instruction was given on the facts or the law of a case: but where the jury are instructed what their' virdict should be ; it is a direction on the effect they should give to the evidence, and they cannot fail to consider the instruction as the law applicable to the facts.

This must have been the- light in which the jury viewed the charge under consideration; and we think- it is the true construction of the language used by the court. In their address to the jury the circuit court may have qúalified by words not reported, the sentences contained in the bill of exceptions; but the legal question arises, and must be decided from the face of the bill. The objection that, the proper remedy of the plaintiffs was by a motion for a new trial, and that the question now made on this writ of error, is substantially a motion for a new trial, seems not to be well founded.

The amount of damages found by the jury are only referred to, as showing that they considered their verdict as controlled by the direction of the court. And this court consider that direction erroneous in point of law. Some personal inconvenience may be experienced by an officer who shall be held responsible in damages for illegal acts done under instructions of a superior ; but, as the government in such cases is bound to indemnify the officer, there can be no eventual hardship. The judgment of the circuit court must be reversed, and the cause remanded to that court, for further proceedings.