Tompkins v. Tompkins. the executorship; and how can it be, if there is no valid will? These are but a few of the practical difficulties, which would arise upon the subject. In short, there can be no difference, in point of principle, where the Court of Probate has an absolute and positive jurisdiction, whether the will respects real estate, or personal estate. In each case, the will must be equally open to controversy in all other courts and suits, or it is closed in all. Yet no one pretends, that the probate is not conclusive, as to the personal estate of the testator, and the title of the executor thereto. It may be added, that by the Act of Rhode Island of 1822 (Digest of 1822, p. 212, § 3), upon an appeal to the Supreme Court in cases of wills, any question of fact in controversy, at the election of either of the parties, may be tried by a jury. Now, as all the parties interested in the estate devised by the will, may make themselves parties to the original proceedings, and also upon the appeal, and the verdict of the jury upon the matters of fact in controversy must be directly upon the very point so put in issue, it would be extraordinary, if any of the parties in the cause (and all the heirs and devisees are, or may be parties thereto) should be at liberty afterwards to controvert and to bring into contestation the very facts, found by such verdict, toties quoties, in any suit at the common law. That would be to enable them to defeat the whole purposes of the Act, and to prevent the decree from having any effect whatever, or, at least, any conclusive effect. So that, until the Statute of Limitations had operated on the will, and the titles derived therefrom, there would be no repose to any such titles. The Act of 1822, in this particular, differs from the antecedent law under the Digest of 1798; and the introduction of this right of a trial by jury was undoubtedly intended to guard against the supposed inconvenience, which might arise from Tompkins v. Tompkins. the conclusiveness of a decree of the Supreme Court upon matters of fact, without the intervention of a jury. Upon the whole, in the absence of all controlling authorities under the local law, looking at the matter upon principle, I am of opinion, that the probate of the present will by the Supreme Court of the State, being a Court of competent jurisdiction, is final and conclusive upon the question of the validity of the will to pass the real estate in controversy. CIRCUIT COURT OF THE UNITED STATES. Fall Circuit. MASSACHUSETTS, OCTOBER TERM, 1841, AT BOSTON. Hon. JOSEPH STORY, Associate Justice of the Supreme Court. BEFORE Hon. PELEG SPRAGUE,1 District Judge. NATHANIEL WHITING v. GEORGE BANCROFT. The 25th clause of the 2d section of the Tariff Act of 1832, ch. 224, includes within its terms all bindings, whether they are worsted or woollen. ASSUMPSIT to recover back money paid to the defendant, the late Collector of the Customs in Boston, while in office, for duties on goods, asserted to be not liable to the duty. The money was paid under protest. Plea, the general issue. At the trial, it appeared, that the goods imported by the plaintiff, on which the duties were levied, were "worsted bindings." It was contended by the plaintiff; (1.) That these bindings were "worsted stuff goods," in the sense of the Tariff Act of the 14th July, 1832, ch. 224, § 2, clause, and also of the Tariff Act of 1833, ch. 54, § 4; and therefore were not liable to any duty whatsoever, under the 4th section 1 Note. Judge Davis resigned his office of District Judge, on the 9th of July, 1841, having held the same office ever since the year 1801, under an appointment by President John Adams. Whiting v. Bancroft. of the Act of 1833, ch. 54. (2.) That, if liable to any duty, they were not liable to the duty of 25 per cent. under the same section and clause, as "bindings," because that clause applies only to woollen and not to worsted bindings; but, at most they were to be deemed non-exempted articles, and liable only to 15 per cent. duty, ad valorem, under the 25th clause of the same section of the Act. The Court reserved the former question for argument; and the jury found a verdict for the defendant upon the ground, that in the commercial sense, these bindings were not "worsted stuff goods." The cause was now argued upon the point reserved at the trial, by C. P. Curtis, for the plaintiff, and by Franklin Dexter, District Attorney, for the United States. The argument of C. P. Curtis, for the plaintiff, was as follows: The verdict has established, that the merchandise entered by the plaintiff, and on which he was obliged to pay the duties now sought to be recovered back, though composed entirely of worsted, does not fall within the description of "worsted stuff goods." The question, then, is, whether it is liable to 25 per cent. duty under the woollen clause in sect. 2, art. 2 of the Tariff Act of 1832, or to 15 per cent. as an unenumerated article. The plaintiff contends for the latter. The scope of the clause in question is to fix the duties on articles of wool, or of which wool is a component part, and all articles, mentioned therein, are taken to be of that material, except such as are described as being of a different material; such as worsted shawls, worsted yarn, worsted stuff goods, &c. Bindings are found in company with mits, gloves, blankets, hosiery, carpets, carpeting, &c., all of which are woollen goods; some of them, (such as blankets, &c.), are uniformly made of wool, and the others are often of that material. "Noscitur a sociis" is a well founded maxim, applicable to revenue as well as to Whiting v. Bancroft. penal laws. The 7th clause of sect. 2, of the Tariff Act of 1828, shows clearly, that the bindings intended were woollen bindings; and this clause is the predecessor, and almost counterpart of the one under consideration. If then, mits, gloves, bindings, blankets, hosiery, &c. are found to be not composed of wool, they do not come within the provision aforesaid, but fall under some other enumeration, as silk, cotton, leather, &c., or are embraced in the sweeping clause imposing a duty of 15 per cent. on all articles not enumerated or specified. This rule has been applied in this manner in the case of Adams v. Bancroft (3 Sumner, 384), where the collector demanded and received of Adams, on an invoice of silk gloves, duties, at the rate of 25 per cent. on the authority of the 2d art. of section 2d, above mentioned, imposing that duty on "gloves." The importer contended, that the material, of which they were composed, took them out of that clause, and that by the Act of 1833, they were free; and this was the judgment of the Circuit Court. The learned judge, in giving the opinion says; "The 2d paragraph of the 2d section of that Act (1832) appears to me to refer entirely to goods composed wholly or in part of wool." Now, construing this clause according to the ordinary rules of interpretation of statutes of this sort, it seems to me difficult to maintain, that any other articles were within the scope of the paragraph, than those, which were wholly of wool, or of which wool is a component part. Now, it was testified by all the witnesses, on each side, that the merchandise in question was composed entirely of worsted; and it is known to the Court, that worsted is a distinct article in commerce from wool. It seems clear, then, that these bindings are not subject to the duty claimed and received by the collector, as woollen articles. Bindings are of different materials, — silk, cotton, leather, wool, worsted, and even of |