Cary v. Curtis

Supreme Court of the United States · 1845 · Federal Courts

Federal Courtscustoms collectormoney had and receivedassumpsitAct of March 3 1839duties paid under protestunascertained dutiesTreasury Secretary

Facts

The plaintiffs brought an action against a collector of the customs to recover duties they claimed had been improperly exacted. The case involved money paid to the collector for duties within the classes covered by § 2 of the Act of March 3, 1839, including duties paid under protest. The statute required such money to be placed to the credit of the Treasurer of the United States and not held by the collector pending litigation. The dispute centered on whether, after that statute, the collector could still be sued in assumpsit for money had and received.

Issue

Does § 2 of the Act of March 3, 1839, bar an action of assumpsit for money had and received against a customs collector to recover duties paid under protest or as unascertained duties?

Rule

When § 2 of the Act of March 3, 1839, applies, money paid to a customs collector for unascertained duties or duties paid under protest must be paid into the Treasury and may not be retained by the collector. Because the collector is thereby made a mere instrument of transfer, with no power to retain or refund the money, no privity or implied promise to repay arises between payer and collector, and an action for money had and received against the collector will not lie.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Baltimore, importer Lena Ortiz paid a disputed customs charge to Nolan Pike, a federal collector, after stating in writing that the charge was unlawful and that she intended to sue for the excess. A federal statute required all such protested payments to be immediately credited to the Treasury and forbade the collector from holding the funds pending any dispute.

If Lena brings assumpsit for money had and received against Nolan personally, what is the strongest argument for Nolan?

Explanation. Under the majority rule, when the statute requires protested or unascertained duties to be paid into the Treasury and forbids the collector to retain them, the collector is only an instrument of transfer. Because he has no lawful power to retain or refund, notice or protest cannot create the privity or implied promise required for assumpsit for money had and received.