NICHOLS V.
BEARD;·
579
that the title to the land was conveyed by Fello-ws to Worthington. (r have examined the cases oited by defendants' counsel, 2ind do not find that they are in conflict with the principles before stated and that seem to be controlling here. One of them (Griswold v. Butler, 3 Conn. 227) holds, what would hardly be disputed, that where a person takes possession under a parol agreement for a· purchase, and pays for the land, or purchases it and takes & deed which is defective, the possession of the purchaser which ensues is prima facie under a claim of title in himself, and is therefore adverse. That is not this case; because Merriok neither took & deed fl'om the true owner nor paid for the land. Without further discussion of the questions involved, I am of the opinion that the title to the lands in suit should be adjudged to be in the plaintiff, and that he is entitled to recover possession.
NICHOLS
and others v. BEARD, Collector.
(aircUH Oourt, D. Massachusetts. Ma,21,1881.) 1. llIl'OllTS-WOOL WEB-REV. ST. f 2504, SCHKD. M, p. 477. Certain imported merchandise, made of India rubber, wool, and cotton, and used for gores, or gussets, in the manufacture of congress boots, was invoiced as wool gusset, or wool terry, and entered as wool web. Held, that such merchandise was "webbing .. .. · composed Wholly, or in part, of India rubber, not otherwise provided for," within the terms of section 2504 of the Revised Statutes, (Sched. M, p. 477, 2d Ed..,) and were therefore only subject to a duty of 35 per cent.-[ED.
Charles Levi Woodbury and J. P. Tucker, for plaintiffs. Geo. P. Sanger, U. S. Att'y, for defendant. LOWELL, C. J. The faots in this case are agreed. The plaintiffs imported into Boston certain merchandise invoioed as wool gusset, or wool terry, and entered as wool
&S80
FEDERAL REPORTER.
.
web, upon which the collector assessed and exaoted a toms duty of 50 cents a pound and 50 per cent. ad valorem. The plaintiffs insisted that the goods were only subject to a duty of 35 per cent., and duly protested against the exaction of a higher rate. The merchandise is webbing made of India rubber, wool, and cotton. It is known as "wool elastic webbing," as distinguished from "union elastic webbing," made of India rub1;ler, silk, and cotton, and "cotton elastic webbing," made of India rubber and cotton. It is used for gores, or gussets, in the manufacture of congress boots, and witho.utthe India rubber would not be adapted for-such use. Webbing is first mentioned in the tariff act of 1842, § 5, (c1. 10, 5 St. 555:) "On India-rubher oil cloth, webbing, shoes, braces or suspenders, or other fabrics or manufactured articles composed wholly or in part of India rubber, 30 per centum ad valorem." This classification has continued ever since, and the duty has been increased but 5 per cent. The supreme court decided, in Arthur v. Davies, 96 U. S. 135, that suspenders or braces composed in part of India rubber were taxable by their name, and not by reference to any other articles of which they might be composed. In Faxon v. Russell, in a very brief opinion, which is not reported, but a copy of which is contained in treasury circular No. 3,970, they applied the foregoing decision to the case of webbing. In those cases the contest was between "braces" or "webbing," and undesignated articles. In this case webbing is mentioned by name in the one clause, and webbings in the other, of section 2504, Rev. St., relied on by the parties respectively. Rev. St. § 2504, Sched. M, p. 477, (2d Ed.,) re-enacts the act of 1842, or its successors, as follows: "India-rubber articles, composed of.-Braces, suspenders, webbing, or other fabrics, composed wholly or in part of India rubber, not other· wise provided for," to a duty of 35 per cent. This is the clause cited by the plaintiffs. Webbing is named in two otheI clauses of the same section, which are admitted to be inapplicable. These are as follows, (sched. H, p. 469;) "Silks.
/ NICHOLS V. BEARD.
581
and silk goods. · · · Silk vestings, pongees, shawls, scarfs, mantillas, pelerines, handkerchiefs, veils,laces, shirts, drawers, bonnets, · · · webbing - · · and ready-made clothing of silk, or of which silk is a compoponent material of chief value," 60 per cent. If there were some silk in the plaintiffs' goods, they would not come under this enactment if there were any India rubber in them. Again; in sched. M, p. 482: "Webbing composed of cotton,flax, or other materials, not otherwise provided for." It is admitted that the goods were not assessable under this part of the seotion. The assessment was made "by virtue of Schedule L, p. 472, taken from the wool tariff act of 1867, as follows: .. Webbings, beltings, braids, galloons, fringes, gimps, cords, cords and tassels, dress trimmings, head-nets, buttons, or barred buttons, or buttoIl8 of other forms for tassels for ornaments, wrought by hand or braided by machinery, made of wool, worsted, or mohair, or of which wool, worsted, , or mohair isa component material,-50 cents per pound, and, in addition thereto, 50 per centum ail fJalurem."
It is not easy to construe these clauses so as to make them consistent with each other. One argument is that this bing is neither wrought by hand not' braided by machinery, but is wov.en in a loom. It is agreed that webbings, beltings, bindings, and galloons, are, and were, !J.t the d:l.te of the act, always so woven. The other articles enumerated in that clause are sometimes wrought by or braided by machinery, wholly, or in part. Now, if these qualifying words, "wrought by hand or braided by machinery," qualify the whole clause, these webbings are not within it. Such would, undoubtedly, be the most natural and obvious construction of the sentence, just as it is admitted to be the true construc. tion of the words which follow immediately, "made of wool, worsted, or mohair," etc.; but when we are informed that four of the fourteen articles are not made by either of the described methods, we are disposed to say, ut res t'aleat, that the qualifying words may be applied to the last antecedent, "buttons of other forms for tassels or o1'llaments." The collocation is the same in the law of 1867, (14 St. 561,) and the
582
fStcts and arguments do not inform me tbat there has been any decision, or any practice, since that act was passed, until this controversy arose, governIng the classification of webbing which is composed partly of wool and partly of India rubber. Again, it may be said that all the articles mentioned in this clause are articles of dress, or of trimming and ornament; and that, by the rule of noscitur a 8ocii8, the webbings (it is webbing in the singular in the India-rubber clause) may be held to be certain particlar kinds of webbing, used for similar purposes. A third argument is that elastic webbing has been classified with suspenders, etc., under the India rubber-clause, for nearly 40 years, and that it cannot be supposed that congress, in enacting the wool tariff of 1867, intended to change it. If, then, the clauses would, upon their face, appear repugnant, the wool clause should be construed to refer to web. bing which contains wool, and does not contain India rubber, especially as the latter is a very specific and limited class, and as the goods in question derive their usefulness entirely from their elastic quality. The words in the elastic-webbing clause, "not otherwise provided for," seem to refer to other fabrics of India rubber, such as shoes and boots, which are mentioned two lines lower down, and pay a smaller duty. I gave too much weight to that qualification in Faxon v. Russell, and was corrected by the supreme court. Though the wool clause was historically later in its origin than the Indiarubber clause, they stand together in the Revised Statutes, and form part of one contemporaneous enactment. Steadiness in the rules and methods of is very important. On the part of the United States the argument is very strongly urged that the wool tariff was intended to provide for every article known to commerce which is made in whole or in part of that material, and to repeal all other laws which assessed a duty on anything of that sort. I find it very difficult to reconcile these provisions of law, or to say Which must be preferred. Upon the whole, in consideration
IN RE BEAR.
588
of the special character of this elastic webbing, which determines its use, and of its having been classified ever since 1842 in a small class of elastic goods, and so treated by the supreme court, I do not feel justified in changing the classification, and therefore hold that these goods were subject to a duty of 35 per .cent. In compliance with the stipulation of the parties, the oase must be sent to an assessor to ascertain the damages, and it is so ordered.
In re BEAR and others, Bankrupts. (Circuit Oourt, 8. D. New York. April 26, 1881.) I. IN HE BEAR,
5
FED.
REp. 53,
AFFmMED.
In Bankruptcy.. George Bell, for Holmes, Booth & Haydens. F. W. Hendricks, for the assignee in bankruptcy. BLATCHFORD, C. J. It must be held that the district court was right in deciding that the in bankruptcy was filed as early as 12 M. on the eleventh of March, and therefore before the execution reached the sheriff. That being so, the creditor acquired no lien by virtue of the execution as against the assignee in bankruptcy, and the oider of January 22, 1881, was correct in dismissing the petition of Holmes, Booth & Haydens, with costs, and the prayer for its reversal must be denied, with costs.
