J. E. Bernard & Co. v. United States

CONCURRING OPINION

Nichols, Judge:

I cannot agree entirely with either of the opinions of the division’s regular members in this case.

The record shows that the collector classified under paragraph 212 by similitude, but whether similitude of use does not appear. We cannot presume it was.

I do not think counsel, by limitations in the proof offered, can bar us from taking judicial notice of what is open and obvious to us in our daily lives, not requiring technical knowledge or explanation. We know, judicially, that toilet roll holders are made of several materials, and that their use is virtually…