Chenery v. Goodrich

Ames, J. The plaintiff insisted, and made an attempt to prove, that a practice to some extent existed or was tolerated at the Boston custom-house in October 1862, to allow an importer to withdraw bis goods without the payment of increased duties, at any time within three months from the date of the actual or constructive deposit of the last package, even though more than three months from the date of the original' importation had elapsed. He claimed also that in the case of goods which did not literally go into the government warehouse at all, but remained outside to be sold upon the wharf, and to be withdrawn, if sold, on payment of duties, (that is to say, in cases of a mere constructive deposit in the warehouse,) the time of the presentation of the withdrawal permit to the storekeeper, as a voucher to justify him in allowing the removal of goods so constructively entered, was in practice treated as the date of the constructive deposit of such goods, whereby to fix the date of deposit of the whole invoice. The testimony offered on this point related to the practice of an earlier date, under the operation of previous statutes, and was also of a very vague and general character. On cross-examination, the witnesses upon this point admitted that they could not recall a case in which the date of the delivery of the withdrawal permit had been treated as the date of the last deposit. The evidence was undoubtedly competent to prove that the actual deposit of the last article was, under the former practice of the custom-house, considered as the starting point for the computation of the time ; but a general statement, to the effect that the final withdrawal of goods without sending them to store at all was in practice considered as a constructive deposit, is a different matter. The withdrawal permit may remain in the hands of the importer, or of the person purchasing from him, for an ■uncertain length of time, during which the date of deposit, on the plaintiff’s construction, would remain uncertain and indefinite. It appears to us, therefore, that in view of the extent to which the plaintiff sought to carry the definition of constructive deposit, the defendant was entitled to a ruling that there was no competent or sufficient evidence of a practice to treat the date of the presentation of the withdrawal permit at the store, for delivery [571] of goods not warehoused in fact, as the day from which the time was to bo reckoned as to that part of the cargo not actually warehoused. It is true that it was not an attempt to prove an established or uniform usage ; but even an occasional practice “ tolerated to a certain extent,” in a certain department of business for any given year, cannot be said to be made out, without distinct proof of some specific instances during the period in question. The remaining exceptions we do not think it necessary to consider, as they are not necessarily material upon the new trial of the case. Exceptions sustained.