ment. A judgment will not be reversed for a refusal of the Court to admit evidence offered, unless it appears affirmatively, that, if admitted, it would tend to prove a material fact in the cause. It is not enough that the evidence offered might have related to an appeal taken after the liquidation. Before the Court can be charged with error in excluding it, the record should show affirmatively that it did have that relation. Such is not the case here.

This brings up for consideration the only remaining questions, which are, whether the United States were bound, in this action, to go behind the liquidation by the collector, and show that the rate and amount of duties were such as the law required the defendant to pay, or whether, if the liquidation was sufficient to make a prima facie case for the Government, the defendant could impeach it by showing that the appraisers failed to perform their duty when appraising the goods. The language of the statute is clear and explicit, to the effect, that the decision of the collector shall be final and conclusive against all persons interested, as to the rate and amount of duties to be paid, unless the appeal is taken. No room is left for construction. The provision is not that no suit shall be maintained to recover back money paid under the decision, until the appeal is taken and acted upon, or the specified time for such action has elapsed, but that the decision itself shall be final and conclusive against all persons interested, upon the questions necessarily decided. This subject was so fully and ably discussed by the learned Circuit Judge of this Circuit, while he was the District Judge for this District, in the case of United States v. Cousinery, (7 Benedict, 251,) that it would be a useless task to endeavor to elaborate it further. It is contended, however, that the Supreme Court, in Clinkenbeard v. United States, (21 Wall., 65,) has, in effect, overruled Cousinery's case. I do not so understand it. That was an action upon a distiller's bond, to recover a capacity tax assessed for an entire month, under the internal revenue law, and it was decided that evidence was admissible to show, by way of defence, that, through an omis

VOL. XV.-3

Watt v. The United States.

sion on the part of the Government, the distiller was prevented from operating the distillery for the first four days for which this tax was assessed, and that the distillery was inactive four days more from an accident, and in charge of Government officers, as provided by law in such cases. But, under the internal revenue law, there is no provision making the assessment of such a tax by the Commissioner final and conclusive. No suit can be maintained to recover back money paid upon taxes erroneously or illegally assessed or collected, until after an appeal to the Commissioner of Internal Revenue, and his decision thereon, unless the decision is delayed more than six months from the date of the appeal, (Act of July 13th, 1866, § 19, 14 U. S. Stat. at Large, 152, now §3,226 of the Revised Statutes;) but there is nothing which makes the assessment conclusive as to the amount due, except for the purposes of collection in the summary way provided by the statute. There is, therefore, a marked difference between the customs revenue laws and the internal revenue laws, in this particular, and it may well be held, that, in an action for the recovery of customs duties, the liquidation of the collector is conclusive, while in an action to recover a capacity tax assessed against a distillery, under the internal revenue laws, the determination of the Commissioner whose duty it is to make the assessment, is not. Certainly, the last of these propositions is all that was decided in Clinkenbeard's case. Judgment affirmed.

Edward Hartley, for the plaintiff in error.

Stewart L. Woodford, (District Attorney,) for the defend

ants in error.

A complaint setting up a contract to insure against fire, and to issue a policy in accordance with such contract, and alleging a breach of such contract, and claiming damages for such breach, sets up a legal cause of action; and the plaintiff can recover thereon, at law, the same damages as if he were suing on a policy issued in the form in which it was agreed to be issued. A policy of insurance against fire provided, that, if there should be any change in the title or possession of the property without the consent of the insurer, endorsed on the policy, the policy should be void. In a suit on the policy, the insurer, to sustain such defence, offered in evidence a deed from the insured, covering the property. The deed was acknowledged on the day of its date, but there was no evidence that it had been recorded, nor any evidence of any delivery of the deed or of any possession under it: Held, that it could not be read in evidence.

(Before BLATCHFORD, J., Northern District of New York, July 2d, 1878.)

BLATCHFORD, J. At the trial, the defendant's counsel asked the Court to rule and decide that the plaintiff could not give evidence to sustain the first cause of action stated in the complaint, upon the ground that the same was an equitable cause of action, and could not be brought on the law side of the Court; that the same could not be united with the second cause of action; and that it could not be tried be fore a jury. The Court so ruled and decided. The plaintiff then offered testimony to prove such first cause of action. The defendant objected to the allowance of any evidence to prove such first cause of action, for the reasons above stated, and the Court sustained the objection, to which decision the plaintiff excepted.

The first count of the complaint sets forth, in substance, that the plaintiff was the owner of a certain mortgage on a mill, for

Humphry v. The Hartford Fire Insurance Company.

$1,000, and was personally liable to pay two other mortgage liens on the same property, held by other parties, amounting in all to over $4,000; that the defendants agreed with him to issue to him a policy of insurance against loss by fire, on the mill, to the amount of $1,500, for one year, both on account of his said mortgage lien and of his said personal liability; that, in part fulfilment of said agreement, the defendants issued a policy insuring William M. Calvert for $1,500, for one year, against loss by fire, on the mill, loss payable to the plaintiff, as mortgagee of the premises; that such policy was not delivered to the plaintiff, but was held by the agents of the defendants, in trust for the plaintiff, till after the insured property was totally destroyed by fire; that due notice and proof of loss was given by the plaintiff to the defendants; that the policy so issued was not in accordance with the agreement of the parties, in that it did not insure the plaintiff against loss on account of his interest, both as a mortgagee of the premises, and on account of his personal liability for the payment of other mortgages which were a lien on the premises, and were owned by other parties; that the plaintiff had no knowledge, until after the fire, that the policy did not conform to the terms of the agreement so made; and that, by reason of the failure of the defendants to fulfil said contract, the plaintiff has sustained damages in the sum of $1,500, with interest.

The second count is founded on the policy as issued, and alleges that the plaintiff had an interest in the property insured, as a mortgagee thereof, and also on account of mortgages held by third parties thereon, for the payment of which the plaintiff was personally liable, to more than $4,000, and claims judgment for $1,500, and interest.

The first count sets up, I think, a legal cause of action. It claims damages for the breach of the alleged contract to insure. If a valid contract, in the form set up, is proved, the plaintiff can recover, at law, the same damages as if he were suing on a policy issued in the form in which it was agreed to be issued. (Pratt v. Hudson River R. R. Co., 21 N. Y.,

Humphry v. The Hartford Fire Insurance Company.

305; Tayloe v. The Merchants' Fire Ins. Co., 9 Howard, 390, 405; Commercial Mutual Marine Ins. Co. v. Union Mutual Ins. Co., 19 How., 318, 323.)

In respect to the count on the policy as issued, the answer sets up, as a defence, that the policy provided, that, if there should be any change in the title or possession of the property, without the consent of the defendants, endorsed on the policy, the policy should be void; that a change in the title of the property took place, in that Calvert conveyed it, by deed, to one Reynolds; that such change was made without the consent of the defendants endorsed on the policy; and that thereby the policy became void. To sustain this defence the defendants offered in evidence a deed from Calvert to Reynolds, covering the premises. The plaintiff objected that there was no evidence of delivery or possession under the deed. The Court overruled the objection, and the plaintiff excepted. The deed was received in evidence, and a verdict was directed for the defendants, to which direction the plaintiff excepted. The deed was acknowledged on the day it bore date, but there was no evidence that it had been recorded.

The question on the policy was, whether a change of title or possession had taken place. Proof of the execution of the deed, without delivery of it, was not sufficient. It not having been recorded, there was no presumption it had been delivered, and nothing appeared as to delivery, except execution and acknowledgment. (Fisher v. Hall, 41 N. Y., 416, 423; Younge v. Guilbeau, 3 Wallace, 636, 641.) An instrument is not a conveyance within the meaning of 1 R. S. of N. Y., 756, § 16, so as to entitle it to be read in evidence, when acknowledged and certified as prescribed, unless it has been delivered, so as to take effect as a grant, vesting the estate or interest intended to be conveyed, as preseribed by 1 R. S. of N. Y., 738, § 138. For the foregoing reasons, there must be a new trial, the costs to abide the event.

A. M. Bingham, for the plaintiff.

William F. Cogswell, for the defendants.