These facts were brought to the attention of the witness, and no effort was made to explain the contradiction between such facts and his previous statements made in his examination. The percentage of decay in the importations last referred to is quite excessive, varying from 50 to 90 per cent of the entire quantities covered by the several invoices. It is a well-settled proposition that duties attach to imported merchandise at the time of its arrival at any port of entry in this country. Hence, in order to sustain a case of shortage or nonimportation on account of decay, it must necessarily be shown either directly or by necessary inference that such decay or shortage existed at the time of the arrival of the fruit in this country. Any decay which may occur subsequently to this period could not be taken into consideration. In re Bonforte, G. A. 6743 (T. D. 28887). The ordinary time consumed in the transportation of lemons and other fruit coming from the Mediterranean is about thirty days, more or less. The examinations made in the cases above referred to having been made variously from ten to fifteen days after the importation of the fruit, it is reasonable to suppose that a large portion of this decay, the exact percentage of which it is impossible to estimate, occurred after arrival and while the fruit was lying on the wharf at the port or New York. In fact, it is quite probable that this percentage would naturally be greater during this period of time than for any similar period while the goods were actually in transitu. The onus being on the importer to establish his contention with reasonable certainty, we are of opinion that the testimony is not sufficient for this purpose. There being but one witness in this case, and he an interested witness in his own behalf, the Government is necessarily at the mercy of his judgment, veracity, and opinion as to the matter in question, all of which is to be taken into consideration in weighing the evidence. The protests embraced in said Schedule A are therefore overruled and the decision of the collector affirmed in each instance. As to the protests contained and enumerated in Schedule B, in which cases the examinations of the fruit seem to have been made with greater diligence and in shorter periods of time, the protests are sustained to the extent of the percentages specified in said Schedule B, and the collector's decision is reversed in each of these cases, with instructions to reliquidate the entries accordingly. (T. D. 29095-G. A. 6778.) 1. GUTTA-PERCHA-COMMERCIAL DESIGNATION. The term "gutta-percha," as used in paragraph 450, tariff act of 1897, has reference to commercial gutta-percha. 2. SAFETY FUSE-MANUFACTURES OF GUTTA-PERCHA. Certain safety fuse held to be in chief value of gutta-percha and dutiable as manufactures of that substance, under paragraph 450, tariff act of 1897. United States General Appraisers, New York, June 18, 1908. In the matter of protests 272631, etc., of A. F. Pollock et al. against the assessment of duty by the surveyor of customs at the port of Denver. Before Board 2 (FISCHER, HOWELL, and DE VRIES, General Appraisers). DE VRIES, General Appraiser: The merchandise consists of safety fuse. It was assessed for duty under the provisions of paragraph 322, tariff act of 1897, as a manufacture of cotton, which paragraph reads: 322. All manufactures of cotton not specially provided for in this Act, forty-five per centum ad valorem. It is claimed to be properly dutiable at the rate of 35 per cent ad valorem under the provisions of paragraph 450 of said act as a manufacture of gutta-percha, which paragraph in so far as applicable reads: * * * gutta-percha, * * 450. Manufactures of or of which these substances or either of them is the component material of chief value, not specially provided for in this Act, * thirty-five per centum ad valorem. * Numerous Voluminous testimony was adduced at the hearing. analyses were made, and expert witnesses offered proof of the contentions of the respective parties. We are entirely satisfied from the record that the contentions of the importers in these cases are well founded. It appears that some differences have been observed in analyses by different chemists of the component materials of the articles in question. It seems well settled, however, from the authorities cited in the testimony heard, that the gutta-percha contemplated by the tariff act of 1897 in the paragraph named is commercial guttapercha. There is a pure or chemical gutta-percha, which is the gum, or gutta, from the tree from which the article is obtained, but which is rarely used except as a chemical. The article which is bought, sold, and used commercially, and so characterized by books upon commercial analysis, the experts testifying, and the trade, is commercial gutta-percha, which is the pure gutta-percha adulterated and augmented with certain resins or cement. The pure gum, or gutta, is of very high commercial value; and we think and find that in the greater number of these cases, even were we to consider the pure gutta-percha, the articles would be very greatly in chief value of gutta-percha. In all of the cases the commercial gutta-percha, which we think is the determinative element to be considered as the single component material entering into the composition of the articles, is many times the value of any other single component material entering into them. It is the form and material used as it is put into the articles. We find that the merchandise in question is composed in chief value of gutta-percha, and hold it properly dutiable at the rate of 35 per cent ad valorem under the provisions of paragraph 450. The protests are sustained, the decisions of the surveyor reversed, and reliquidation will follow. (T. D. 29096-G. A. 6779.) Filling threads-Cotton cloth. Threads introduced in the process of weaving or by the Jacquard process in cotton cloth, running from selvage to selvage, interwoven at regular intervals with the weft for the purpose of forming figures or dots upon the goods, are "filling threads" "other than ordinary," and should be counted in the determination of the thread count of the fabric under the countable clauses of the cotton schedule of the tariff act of 1897. United States General Appraisers, New York, June 18, 1908. In the matter of protest 268883 of Lamb, Finlay & Co. against the assessment of duty by the collector of customs at the port of New York. Before Board 2 (FISCHER, HOWELL, and DE VRIES, General Appraisers). DE VRIES, General Appraiser: The merchandise consists of gray French vestings. It is ornamented with black dots, which are produced by double threads running from selvage to selvage. The question at issue is whether or not the black threads are filling threads. The weft is composed of double threads, which underlie one and overlap two warp threads in the process of weaving. The black threads overlie two and underiie many warp threads for the purpose of forming dots at regular spaces. It is uncertain whether the black threads are inserted by the regular process of weaving or by the Jacquard process. This we deem immaterial. If the black threads are counted as part of the filling, there is a difference in the rate of duty, in that it throws the count over 150 threads per square inch. If they are not counted, the count is under 150 threads per square inch, and the issue in the case, as stated, is whether or not the black threads are filling threads within the terms of the countable cotton provisions of the tariff act of 1897, paragraphs 304 to 309. In Hedden v. Robertson (151 U. S., 520) the Supreme Court passed on cotton cloth with Jacquard figures, the extra threads having been clipped so as to leave only those portions necessary for the figures. The court held it dutiable as cotton cloth, stating in part as follows: The number of threads to the square inch are counted by the use of a magnifying glass. In the goods in question the number of threads to the square inch was determined by counting the threads in a square inch of the groundwork alone, and there is no dispute that the groundwork of the cloth, independently of the figures, contained the number of threads designated in the provision of the statute which warranted the duty imposed thereon by the collector. The act of 1883, under which this case arose, was worded precisely like the present act in so far as it related to the count of threads of cotton cloth, namely, "counting the warp and filling." We quote further: The provisions of the act of 1883, like the provisions of section 2504, fixes the rate of duty by a classification, based on the number of threads in a square inch of cotton cloth, without reference to the mode by which the count shall be made, and without regard to the incidental ornamentation of the fabric. We have no authority, where the duty is thus specifically declared, to make an exception based upon something that might be added to the cloth in the way of figures or patterns placed upon the groundwork of the fabric. The groundwork being cotton cloth, within the terms of the provisions of the statute, and the threads thereof being countable, the goods were dutiable by the express language of the statute at the rate which was exacted by the collector from the defendant in error. The mode of weaving the goods and of subsequently clipping the fabric so as to bring out the figures, even though that operation did pare the weft or filling at the figures, does not change the character of the fabric so as to make it a manufacture of "cotton not specially enumerated or provided for." In other words, the ornamentation placed upon the groundwork of the fabric does not change its character as cotton cloth, subject to the countable clause of the statute, and dutiable under paragraphs 319, 320, and 321 of the act of 1883. While this would seem to lay down the rule that the extra threads are not to be counted in determining under what paragraph the goods fall, no question was raised except whether or not the merchandise was cotton cloth. The extra threads, not extending from selvage to selvage, were plainly not woof or filling threads. In Johnson v. United States (123 Fed. Rep., 997) the court had before it Jacquard silk goods. A flimsy thread which did not appear at all on the surface of the fabric, and which was of a different color from that of the regular filling threads, was held to be "of the filling," and the merchandise consequently Jacquard figured goods. having two or more colors in the filling We quote: It is evident that these goods were made with the intent of bringing them within the provisions of paragraph 391, as claimed by the importers. It does not appear that the threads participate in the effective work of the filling; but it is a well-settled doctrine that intent is not an element in determining the proper classification of imported articles, and that merchants are at liberty so to manufacture and so to import their goods as to subject them to the lowest possible duties under the tariff laws." United States v. Irwin (24 C. C. A., 349, 350, 78 Fed. Rep., 799, 801). If the decision of the Board is to be construed as holding that these are not "goods * * * taining two or more colors in the filling," their finding is unsupported by the evidence, because the two witnesses for the importer testified that the additional colored threads were known as "threads of the filling," and the two witnesses for the Government did not deny this statement. con In that case the threads in question, as in this, extended from selvage to selvage. In G. A. 4542 (T. D. 21569), which was affirmed successively by the circuit court and the circuit court of appeals in 142 Federal Reporter, 849 (T. D. 26878) and 149 Federal Reporter, 1022 (T. D. 27748), the merchandise was silk goods, the figures of which were produced by different processes-the Jacquard and the swivel. We quote from the Board's decision: We find as a matter of fact *(6) that the remainder of the goods in question are combinations of Jacquard and swivel-that is to say, some of the figures in them were produced by the Jacquard attachment and some by the swivel device; that in these goods the filling threads, which also form the Jacquard figures, are all of one color; and the threads which form the swivel figures are of a different color in each instance. We are of opinion that the goods covered by our sixth finding fall within the description "Jacquard figured goods in the piece, made on looms," since the Jacquard figures in them are a prominent feature, and the addition of the swivel figures is not sufficient to remove them from that class. But do they fulfill the other requirement of the law, namely, have they two or more colors in the filling? This resolves itself practically into the question whether the swivel threads are "filling" within the meaning of that term as used in paragraph 391, because, if the swivel threads are not included, the filling is all of one color, including the Jacquard figures, but if the swivel threads are included, then there are two colors in the filling. The word "filling" in its ordinary sense means something that fills. In weaving it is synonymous with "weft," and relates to the threads that fill the interstices in the warp, and thus form the fabric. Such threads run from edge to edge or from selvage to selvage of the fabric; consequently there is an appropriateness in referring to the Jacquard goods as having "two or more colors in the filling," as the figures in such goods are composed strictly of filling threads, running from one edge to the other, filling the warp and constituting an essential part of the fabric, although serving the purpose of an ornament as well. The swivel threads, on the contrary, are solely for the purpose of ornamentation. They are inserted side by side with the filling and are additional to it. The warp is "filled" without them. The circuit court passing on this decision said: The importation relates to Jacquard silk. An examination of the question involved induces the conclusion that the filling in the importation extends from selvage to selvage and that there is but one color therein. As claimed by counsel for the United States, the weft or filling in question to form the fabric completely fills the interstices in the warp, and the blue-colored thread, a so-styled swivel thread, is woven in the filling for the purpose of beautifying the appearance of the article, and is additional to the filling. Hence paragraph 391 does not apply as claimed by the importer. And the duty assessed by the collector and approved by the Board of General Appraisers was proper. This was affirmed by the circuit court of appeals by merely stating they agreed with the conclusion of the Board and the circuit court. In United States v. Albert et al. (60 Fed. Rep., 1012), the circuit court of appeals, second circuit, had before it the question of the classification of dotted swisses. We quote: The Board of General Appraisers found that the merchandise was not embroideries; that plain portions of the fabric, counting the warp and filling, contain exceeding 100 and not exceeding 150 threads to the square inch; but, following the decision of the circuit court in Robertson v. Hedden (40 Fed. Rep., 322), which will be hereafter referred to, held that Swiss muslins did not come within the provisions of the so-called "countable cotton" paragraphs, but were to be classified under paragraph 355, as manufactures of cotton not specially provided for. * * * * * The threads which compose these figures are not a part of the filling. They are additional to the filling, and the piece would be perfect without them. Notwithstanding their existence and the fact that they are thickly scattered over the surface |