
    MILLS et al. v. UNITED STATES.
    (Circuit Court, S. D. New York.
    April 19, 1901.)
    No. 3,156.
    Customs Duties — Fisured Cotton Goods.
    Figured cotton cloths of the class commercially known as ‘leños,” in which the figures are formed by threads introduced by special machinery in the process of weaving, are subject to the additional duty imposed by paragraph 313 of the tariff act of 1897 on “cotton cloth in which other than the ordinary warp and filling threads have been introduced in the process of weaving to form a figure.”
    Appeal by the importers from a decision of the board of United States general appraisers which sustained the action of the collector of customs-in assessing duty on the importations in question.
    W. Wickham Smith, for the importers.
    Charles D. Baker, Asst. U. S. Atty.
   TOWNSEND, District Judge.

The merchandise in question consists of a large variety of figured cotton cloths, including a. class commercially known as “leños,” which were assessed for. duty under the countable clauses of paragraphs 304 to 309 of the tariff act of 1897, and also under paragraph 313 of said act at an additional duty of two cents per square yard. Many of the questions herein are discussed in the opinion in H. B. Claflin Co. v. U. S., 109 Fed. 562. Counsel for the importer contends that the three conditions precedent to the classification of the merchandise within the provisions of paragraph 313 are (1) that the threads shall be other than ordinary warp and filling; (2) that they shall be introduced in the process of weaving; (3) that they must be introduced to form a figure; and that the construction contended for by the government obliges the court to reject either the words “other than ordinary warp and filling,” or the words “introduced to form a figure,” because, according to the board of general appraisers, all threads introduced to form a figure are other than ordinary warp and filling threads. While there are some expressions in the finding of the board of general appraisers which support this contention, 1 think it sufficiently appears that they did not so' decide. In any event, I concur, upon all the evidence, in the statement of the board that “threads introduced primarily for the purpose of forming the fabric, and which, though they may be incidentally so manipulated to form figures, are nevertheless ordinary.” The board explains that this includes figures formed by keeping on the surface for certain distances threads which are regularly interwoven in other parts of the fabric, and form part of the body or groundwork thereof, etc. This statute should be construed as though it read, “cotton goods in which threads have been introduced to make a figure, which threads are other than the ordinary warp and filling threads.” The board has found that the threads in the leños are other than ordinary threads. If this is a question of fact, I am bound by that finding, which was supported by abundant evidence. If it is a question of law, I think the same* conclusion must be reached. These threads are not ordinary, because they are not wound on the ordinary loom or beam, but on an extra beam; because they are not wound in the ordinary lengths, but in extra lengths. They employ extraordinary mechanism for their operation, and they are not used for the ordinary purpose, namely, to weave the ordinary fabric. The statute specifically includes lappets, which are made with a warp thread introduced underneath the fabric by means of needles to form the figure. It is conceded in this case that “dotted swisses” are included within the provisions of said paragraph.

As to the second point, — that the threads shall be introduced in the process of weaving, — counsel for the importer contends that this means “new threads introduced after the process of weaving was begun, and operated by means of a special attachment for the purpose of forming a figure.” I think this construction is too narrow. In H. B. Claflin Co. v. U. S. it was agreed by both sides that these words meant anything introduced during the weaving process, or at any time while the weaving is going on. The leno effect is introduced in the process of weaving much in the same way as is the dot by the swivel shuttle. The extra beam in the leno is"wound in much the same way as the beam or large spool of the lappet. They are all introduced into the fabric at about the same time, and for the same purpose, namely, to form a figure. The decision of the board of general appraisers is affirmed.  