MARTIN et al. v. CURTIS, 16 F. Cas. 892

THOMPSON, Circuit Justice, charged that in his opinion this ease was one which depended entirely on the verdict of the jury, that is, whether in 1832, when the tariff act was passed, levying a duty on cotton bagging, gunny cloth was known as being used for cotton bagging. It had been supposed by the defendant that Judge Story in the case-tried before him, had laid down some new principles as to the construction of the act of ’32, and this court was now called upon to-give a decision not in conformity with his.

If this court considered that Judge Story had advanced any new principle, they would give the present case more deliberate examination. He did not understand that any new principle had been stated, but that the principle laid down by Judge Story had been established these ten years by the decision of the supreme court of the United States.

He believed that the jury were to preserve the existence of the commercial understanding of terms made use of because the laws were made for those engaged in mercantile-pursuits, and if they did not resort to that understanding in- deliberating upon actions of this nature, they would mislead the merchant who deals in the article. This, which was the decision of Judge Story, was no new rule, but had been settled on the soundest principles for ten years. The enquiry was then, whether under the act of 1832, this gunny cloth was known as an

article applied to the bagging of cotton. The defendant insists that the words “without reference to weight or width” were susceptible of a different construction. It was proper that the duty laid in 1832 should apply to all articles then known and used for cotton bagging, and it did so apply because some was made of hemp, some of flax, of tow and even of cotton, and the qualification therefore did apply to all articles then known or used as cotton bagging, but not to an

article unknown as used for such purpose, and if congress had intended to embrace every

article which could be used for cotton bagging, they would have said so. They used the words with reference to the articles then known, and not to any which might after-wards be applied to the same use. The act of Aug. 30, 1842 [5 Stat. 548] has not, as has been asserted, any material bearing on the case. In that act, congress uses broader language, and meant to adopt such language as would cover all articles which might be used for cotton bagging, and the-20th

section embraces all articles which bear a similitude to articles which are liable to duty. In 1832, this was not known as an

article used for cotton bagging and whoever applied it to that use, because it was cheaper, did nothing improper, but made an honest application of his ingenuity, but congress finding that the ingenuity of man had discovered something which would answer the purpose of bagging for cotton, and which was not known in 1S32, and that gunny cloth would answer that purpose, laid a specific duty on it. The court saw nothing in- the act of 1842 to take from this case the settled law, that the duty should be laid according to the commercial understanding and acceptance, of the article.

Was then this gunny cloth known and used in 1S32 when the act was passed, as cotton bagging? If the jury believe it was, the duty was properly laid; and if not, the plaintiffs were entitled to a verdict. Verdict for plaintiffs.