THIS case was brought up by writ of error, from the Circuit Court of the United States for the Southern District of New York.
It was an action brought by the plaintiffs in error against Lawrence, the collecter of the port of New York, for a return of duties alleged to have been improperly exacted upon certain importations of shawls.
The circumstances of the case and the various prayers to the Circuit Court, both on behalf of the plaintiffs and defendant, are fully stated in the opinion of the court.
It was argued by Mr. McCullok and Mr. Cutting, for the plaintiffs in error, and Mr. Cushing, (Attorney-General) for the defendant.
The points made by the counsel for the plaintiffs in error, were the following:
1st. The first, second, third, and fourth instructions asked for by the defendant, and granted by the court, are erroneous, each of them—
(a.) Because the terms, 'clothing ready-made and wearing apparel of every description, made up or manufactured by the tailor, sempstress, or manufacturer,' used in schedule C, of tariff of 1846, do not include by their own force all articles which can be used as personal dress either for the adornment, protection, or comfort of the person; and
(b.) Because, where in said tariff of 1846 the use to which an article may be usually put is intended to govern the rate of duty to be exacted, the statute expressly so declares.
(c.) Because, by all the proofs, said terms, 'wearing apparel,' as used in trade and commerce in July, 1846, did not embrace such shawls and scarfs.
(d.) Because, the terms 'wearing apparel,' as used in said act of 1846, are either synonymous with 'ready-made clothing,' or too indefinite to assess any other article, than ready-made clothing with duty.
(e.) Because the tariff should be construed according to the commercial sense and meaning of the terms employed. The charge is in this respect opposed to the settled law of this court.
2d. The fifth and sixth instructions asked by the defendant, and granted by the court, were erroneous;
(a.) Because the fifth assumes that in commerce the addition of fringes by hand to some of said shawls and scarfs, after they come from the loom, necessarily brings them within the terms, 'articles worn by women or children made up, or made wholly, or in part, by hand,' which are employed in said schedule C.
(b.) Because the sixth assumes that the making of knots in the fringes, or the twisting of said fringes by hand in some of said shawls, after the shawls came from the loom, necessarily brings the shawls within the clause, 'articles worn by women and children, made up or made wholly, or in part, by hand.'
The court erred in refusing the plaintiffs' prayers, because
3d. The shawls and scarfs in question being in trade and commerce known as 'manufactures of silk' or 'worsted,' and not being known in commerce as 'clothing ready-made,' nor as 'articles worn by women and children,' the adding of fringes by hand, or the knotting and twisting these fringes by hand, does not take them out of the classes of 'manufactures of silk, or of which silk shall be a component material, not otherwise provided,' and of 'manufactures of worsted, or of which worsted shall be a component material, not otherwise provided for,' specified by schedule D.
4th. The proof shows that in trade and commerce the term 'made,' or 'made up,' used in schedule C, does not embrace goods to which fringes, borders, knots, or tassels, are added after the fabric is made in the loom; nor force goods with such additions to be rated or known as 'articles worn by women, made up, or made wholly, or part by hand.'
5th. The use to which goods may be put, in fact, does not exclude them from the commercial class to which they belong.