Cornelius Lawrence, Plaintiff In Error v. Gilbert Allen and Samuel Paxton

• Decision Date: 01 January 1849
• Citation: 12 L.Ed. 914,7 How. 785,48 U.S. 785
• Parties: CORNELIUS W. LAWRENCE, PLAINTIFF IN ERROR, v. GILBERT ALLEN AND SAMUEL C. PAXTON
• Court: U.S. Supreme Court

48 U.S. 785

7 How. 785

12 L.Ed. 914

CORNELIUS W. LAWRENCE, PLAINTIFF IN ERROR, v. GILBERT ALLEN AND SAMUEL C. PAXTON.

January Term, 1849

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 of assumpsit, commenced by Allen and Paxton, the defendants in error, in the Supreme Court of the State of New York, for the purpose of recovering back from the plaintiff in error, collector of customs for the port of New York, certain moneys exacted by him, as collector, for duties upon a quantity of common India-rubber shoes, imported into the port of New York in September, 1845, by the defendants in error, from Para, in Brazil.

Under the provisions of the act of Congress of the 2d of March, 1833, the suit was removed into the Circuit Court of the United States for the Southern District of New York.

The declaration contained the common money counts, to which the defendant pleaded the general issue.

The cause was tried in May, 1847, and, under the instructions of the court, the jury found a verdict for the plaintiffs below for $2,908.60.

A great deal of evidence was adduced upon the trial by the plaintiffs, to show the manner in which the shoes are made in Brazil, and their use as an article of commerce. Much of this testimony was objected to as inadmissible. A part of it is transcribed, because it is referred to in the opinion of the court.

The plaintiffs' counsel then called, as witnesses, James E. Smith, Amory Edwards, George G. Wales, and William H. Edwards, who, being sworn, severally testified that they were acquainted with the articles now the subject of controversy, and with other articles of India-rubber imported from Para; that they had been at Para, and were acquainted with the process of producing or making India-rubber; that the juice or sap of the trees, when collected, is about the color and consistency of milk, and is called milk; that it is placed in a vessel of convenient size; that moulds of clay, or of wood covered with clay, in the shape of a shoe, or bottle, or other shape, and to which a handle is attached, are dipped in the milk, and immediately held in the heat and smoke of a fire made of a peculiar kind of nut, which dries the milk and gives it a dark color; that this process is repeated several times, until the coating is sufficiently thick, when the article is taken, from the mould, by breaking the clay of which it is made, or with

which it is covered, and the pieces of clay are taken out; that shoes and bottles are then generally stuffed with straw, and that the article is then ready for sale and exportation; that bottles are made in two or three minutes; that it takes somewhat longer, say about five minutes, to prepare a shoe; there must be a new mould for every bottle;—the foot-shaped mould is the best form for dipping. The shoe shape is the most convenient mode of making India-rubber. The stuffing of the shoe is done by the parties who buy them in Para for exportation. The shoes are sometimes shipped in bulk, and sometimes stuffed. The term, India-rubber shoes, comprehends all kinds of shoes made of India-rubber, both manufactured and unmanufactured; that the price of India-rubber shoes, in Para, has varied greatly since 1826; that the great demand for India-rubber, of late years, in the United States, for dissolving for manufacturing purposes, has raised the price in Para; that no such things as suspenders are made in Para; that nothing is made there in a more manufactured state than the square sheets; that India-rubber shoes are sometimes sold and shipped at Para without being stuffed with straw.

Much evidence was also introduced by the defendant, the object of which was to show that the articles were known, in commerce, by the name of 'India-rubber shoes,' and were bought and sold in the market as imported, without any alteration of any consequence.

The counsel for the defendant then prayed the court to decide the law of the case, and to instruct and charge the jury, as follows:——

First. That in construing and applying the provisions of the tariff law of August 30, 1842, to the present case, the terms used therein are to be understood in their known commercial sense, as used and understood in the ports of the United States prior to, and at the date of, said law.

Secondly. That as all 'India-rubber shoes,' imported from foreign countries, are, by the said provisions, subject to thirty per cent. duty, the true and only inquiry in the present case is, whether, in a commercial sense, and among commercial men dealing therein, the articles in question were imported into, and usually known and bought and sold in, the ports of the United States, prior to and at the date of the law, under the name and denomination of 'India-rubber shoes.'

Thirdly. That if the jury shall be satisfied, from the evidence, that the articles in question were imported into, and usually known and bought and sold in, the ports of the United States, prior to the 30th of August, 1842, under the name and denomination of 'India-rubber shoes,' then they are liable,

under the law, to a duty of thirty per cent. ad valorem, and the jury should be instructed to find for the defendant; and that, in the case stated, the jury should be instructed to find for the defendant, notwithstanding they should also be satisfied, from the evidence, either,——

1st. That the term 'India-rubber shoes,' as used in commerce, includes all other kinds of shoes made in whole or in part of India-rubber, as well as these; or,

2d. That 'India-rubber shoes,' in a more finished condition, and of a better quality, were imported from England, France, or other countries, prior to 1842, and were then, and are now, known in the markets; or,

3d. That some additional labor is usually applied to these articles, or is necessary to fit them for convenient use as shoes; or,

4th. That these articles are extensively used by manufacturers in the United States for the purpose of being made, in whole or in part, into other articles; or,

5th. That no more or other kind of labor is required to make these articles than is required to make India-rubber in bottles, or sheets, or other kinds of India-rubber, which, by the seventh article of the ninth section, is entitled to admission as free.

It being insisted, on the part of the defendant, that neither of these circumstances, nor all of them combined, can nullify the explicit terms of the preceding fifth section, by which all kinds of 'India-rubber shoes' are subjected to the thirty per cent. duty, nor make free these articles, provided they are and were known in commerce under the name 'India-rubber shoes.'

But his honor, the presiding judge, refused so to decide the law of the case, or so to instruct the jury; and, on the contrary, the said judge did then and there decide, and did then and there charge and instruct the said jury, that the case, in the view taken thereof by the court, entirely depended on the true legal construction of the tariff act of August 30, 1842, and involved no question of fact for the jury; that India-rubber, when used, in whole or in part, in the manufacture of oilcloth webbing, shoes, braces, or suspenders, or any other fabrics or manufactured articles, was, by the tenth article of the fifth section of this law, subjected to the duty of thirty per centum ad valorem, specified in the clause relating to these fabrics, contained in said tenth article; that, by the seventh article of the ninth section of said act, India-rubber, in bottles or sheets, or otherwise unmanufactured, is declared to be exempt from duty; that, by virtue of this clause...