David Fox and Rose Fox, the defendants in error, imported from Liverpool certain goods called velours, composed of cow or calf hair, vegetable fiber, and cotton, an imitation of seal-skin, and used for manufacturing hats and caps. The goods were not specifically enumerated in the tariff acts, but 'in the use to which they were put, and in appearance and material, resembled manufactures of goats' hair and cotton more nearly than any other article of commerce. The goats' hair and cotton goods are also imitations of seal-skin, and all these goods of both kinds are frequently commercially called 'seals,' and are made to represent seal-skin, and are used for the purposes for which seal-skin is used.' The component material of chief value in velours is cow and calf hair, and not cotton.
The provisions of the tariff acts involved in the determination of the duties to be paid on the importation are as follows:
'REV. ST. § 2504, SCHEDULE A.
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'Cotton braids, insertings, lace, trimming, or bobbinet, and all other manufactures of cotton, not otherwise provided for, thirty-five per centum ad valorem.
'SCHEDULE L.
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'Flannels, blankets, hats of wool, knit goods, balmorals, woolen and worsted yarns, and all manufactures of every description composed wholly or in part of worsted, the hair of the alpaca, goat, or other like animals, except such as are composed in part of wool, not otherwise provided for, valued at not exceeding 40 cents per pound, 20 cents per pound; valued at above 40 cents per pound and not exceeding 60 cents per pound, 30 cents per pound; valued at above 60 cents per pound and not exceeding 80 cents per pound, 40 cents per pound; valued at above 80 cents per pound, 50 cents per pound; and, in addition thereto, upon all the above-named articles, 35 per centum ad valorem.
'Sec. 2499. There shall be levied, collected, and paid on each and every non-enumerated article which bears a similitude, either in material, quality, texture, or the use to which it may be applied, to any article enumerated in this title, as chargeable with duty, the same rate of duty which is levied and charged on the enumerated article which it most resembles in any of the particulars before mentioned; and if any non-enumerated article equally resembles two or more enumerated articles, on which different rates of duty are chargeable, there shall be levied, collected, and paid on such non-enumerated article the same rate of duty as is chargeable on the article which it resembles paying the highest duty; and on all articles manufactured from two or more materials, the duty shall be assessed at the highest rates at which any of its component parts may be chargeable.' The importers claimed that the goods were dutiable at 35 per centum ad valorem as manufactures of cotton, while the collector exacted a duty of 50 cents per pound, and 35 per cent. ad valorem on account of the similitude they bore to manufactures composed wholly or in part of the hair of the goat without wool. The duties were paid according to the demand of the collector, and this suit was brought to recover back the excess of what was paid over the duty on manufactures of cotton; that is to say, to recover back the charge of 50 cents per pound. On the trial the circuit court instructed the jury to find for the importers, and to reverse a judgment upon a verdict under such an instruction this writ of error was brought.
Section 2499 of the Revised Statutes is a re-enactment of section 20 of the act of August 30, 1842, c. 270, (5 St. 565,) as to which this court said, in Stuart v. Maxwell, 16 How. 160, speaking through Mr. Justice CURTIS:
'It was designed to afford rules to guide those employed in the collection of revenue in certain cases likely to occur, not within the letter, but within the real intent and meaning, of the laws imposing duties, and thus to prevent evasions of those laws. Manufacturing ingenuity and skill have become very great, and diversities may be expected to be made in fabrics adapted to the same rules and designed to take the same places as those specifically described by some distinctive marks, for the mere purpose of escaping from the duty imposed thereon. And it would probably be impossible for congress, by legislation, to keep pace with the results of these efforts of interested ingenuity. To obviate, in part at least, the necessity of attempting to do so, this section was enacted.'