Chester v. Curtis

5 F. Cas. 583, 1 Blatchf. 499

• Court: U.S. Circuit Court for the District of Southern New York
• Decided: October 15, 1849
• Status: Published

Opinion

NELSON, Circuit Justice.

It is insisted on the part of the plaintiffs, that the term “bindings,” in tbe connection in which it is used in the clause of the act of 1832 which is in question is to be limited to the article when composed wholly or in part of wool, and does not include it when composed wholly of worsted; and the case of Bend v. Hoyt, 13 Pet. [38 U. S.] 203, is referred to as a decision to that effect. The article in question there was silk hose, and the duty was imposed upon it, under the impression that the articles enumerated in the clause embraced all articles of the kind, of whatever materials composed, and that silk hose, therefore, fell within the term “hosiery” there enumerated. But it was held, that the clause applied to articles of the description enumerated, composed wholly or in part of wool, and. therefore, did not embrace the articles of hosiery if composed of silk. The argument is somewhat stronger in favor of such a construction in respect to the article of silk hose, on account of other provisions in the act, than it is in regard to the article in question here. But, as I understand the decision, the court intended to hold and did hold, that the clause related exclusively to articles of the description specified, composed wholly or in part of wool. That decision covers and disposes of the question in this case.

The objection that the suit cannot be maintained against the defendant since the act of 1S3!), and the decision under it in Cary v. Curtis, 3 How. [44 U. S.] 236, notwithstanding the repeal of that act by the act of 1S45, does not arise, as the point was not taken at the trial. If it had been, evidence might have been given to obviate it.

New trial denied.