Sheldon v. Swartwout

21 F. Cas. 1242, 1834 U.S. Dist. LEXIS 19

Opinion

THOMPSON, Circuit Justice,

charged the jury that the government claimed the duty on the article as being millinery; and it was for the jury to decide whether it came under that denomination. They had heard the definition given of it in dictionaries and by the witnesses, but it would also be well to look at the manner in which it was designated by law, and see if congress meant to include handkerchiefs under the denomination of millinery. The act in defining what belongs to millinery, says, “fans, flowers, feathers, caps for women, and ' millinery of all kinds.” When the act therefore began its description by enumerating a series of articles belonging to the head,- and then said, “millinery of all kinds,” it was fair to suppose that the general term was intended to apply to such articles. According, also, to most of the witnesses, the word millinery was only applicable to ladies’ head-dress, and in the judgment of the court, the article in question could not. properly be denominated millinery. That the . article is a manufacture of flax there could be no doubt; and as such the plaintiffs should show that it came under the exemptions of the law relative -to linen fabrics. Many witnessbs had been examined on the subject, but could not agree as to what constituted linen cambric. Most of them, however, said that it meant piece goods sold by the yard; and when asked what they understood the handkerchief "to be, they said it could not be called linen cambric alone, but required a further designation, and that the term linen cambric did not include linen cambric handkerchiefs. • At -the custom house,' however, handkerchiefs in the piece are considered linen cambric, and admitted free. The question, then, was, whether the handkerchief being cut off and hemmed, took it out of the denomination of linen cambric. If so, it was but reasonable that the government should show it It was sáid that the -article came under the denomination ot millinery, or ready-made clothes; but was-there sufficient evidence to enable them to say' it was either? If not, then it might come under the denomination of a manufacture of flax, unless it was exempted by the act of. 1833 [4 Stat. 629] as linen cambric. It was said, that the reason why this article had been subject’to duty, was with a view to protect the labor and industry of the country; but if that was the object which government had in view, it would have adopted a similar course regarding similar articles, and it had been shewn to the jury that silk handkerchiefs, veils and other made up articles .were admitted free of duty; and it was but reasonable to suppose that the same principle was to be extended to linen cambric handkerchiefs. The object of congress in admitting silk free of duty, was to encourage its importation; and it was the same in relation to linens. The question then was, did the article amongst buyers and sellers come under the denomination of- linen cambric? If so, 4t was exempt from duty; if not it was subject, to it

The jury retired for a short time and returned a verdict for the plaintiffs of $162.60, being the amount of the money paid the collector with interest