Drake v. Hudson ( 1826 )

Dorsey, J.

delivered the opinion of the Court. The appellees, the owners of the schooner Superior, despatched her, with a cárgo, to the Havana, where she arrived on the third day of March 1816, consigned to the appellant, who having discharged his duties as consignee, on the 17th of April paid at the custom-house a duty of five and a half rials per ton, (the amount always payable, anterior to the first of March 1816,) made up his accounts accordingly; which, on the return of the schooner, were transmitted to the consignors at Baltimore. It is in proof, by competent witnesses, that by an order of the intendant of Havana dated said first day of March, but not made public until sometime after, all vessels entering that port were required to pay a duty of eleven rials per ton, instead of file amount heretofore demandable. That the consignees of all vessels, which arrived after the said first day of March, had been obliged to pay the said increased impost on tonnage, and that supercargoes settled with them accordingly. That in November 1816, the appellant was called on, and had to pay the additional duty, amounting to the sum of Si98 and five and a half rials. For the recovery of which sum the present actioa was instituted.

This claim is objected to on two grounds: First. That the appellant paid this money as a mere volunteer, and cannot become the creditor of the appellees without their consent. This objection is entitled to no consideration. The very act of consignment, transfers not only the power, but is in fact a request to the consignee to pay all charges to which the vessel may be necessarily subjected at her port of delivery. For the payment thereof, the consignee pledges his personal responsibility; to him, and not to the consigners, is the credit given at the customhouse.

The second objection is, that ££no parol evidence can be offered of the order of the first of March 1816, or of any payment made under the same;” and of this opinion were the court below, and so instructed the jury.

That this order was in writing, we think most manifest from the proof in the cause; but that it is of such a character, that its contents can only be proved by an authentic or sworn copy, we cannot admit. This strictness, in proving the laws of a foreign country, is only applicable to laws or public edicts, of which a regular record is necessarily presumed to have been kept. The order of the first of March is not of this description — It is a mere instruction or rule prescribed by the intendant of Havana, for regulating the duty of the custom-house officers, and may not be any where recorded. That orders or instructions of this kind, given in a foreign country, may be proved by parol, vide Livingston & Gilchrist, vs. The Maryland Insurance Company, 6 Cranch, 280, and 1 Phill. Ev. 301, (note a.) But even admit, that the order spoken of in this case were to be considered as a law or public edict, the contents of which it is inadmissible to prove by parol, yet it appears to this court, that the testimony offered by the plaintiff, (that under an order of the intondant of Havana the customhouse officers did alwaj's demand and receive this double tonnage duty upon all foreign vessels arriving after the first of March 1816,) was admissible before the jury, without any other proof of the order itself. It establishes the fact, or call it if you please an usage or custom, as to the amount of duties payable there; which usage or custom may be proved by parol, whether arising under a public written law or not. See the case of Livingston and Gilchrist vs. The Maryland Insurance Company, 7 Cranch, 539 and 1 Phil. Ev. 301, (note a.) The great inconvenience and injustice, which might flow from the sanction of a different principle, is most obvious. We therefore dissent from the opinion given by the court below, and reverse their judgment.

JUDGMENT REVERSED, AND PROCEDENDO AWARDED.