| U.S. Circuit Court for the District of Southern New York | Oct 24, 1889
These samples are cotton cloth, within the dictionary definition, and within the common, every-day meaning of the word “cloth,” just the same as was the “penolope canvas,” which was before us in Ullmann v. Hedden, 38 Fed. Rep. 95. They are within the definition which was used as the test in that case, viz.: “Cloth: A woven fabric, of fibrous material, used for garments or other purposes.” Congress has, however, in the paragraph on which the defendant relics, prescribed rates of duty only for those kinds of cotton cloth which may be discriminated from each other by a count of the threads of which they are composed; such count being staled per square inch. That necessarily imports that the cloth shall be homogeneous, so that the number of threads per square inch will not differ in different parts of the fabric. The contention of the defendant that the threads in the so-called groundwork only are to be included in the count, the figures being regarded as a merely incidental ornament, — as something added to the cloth,— seems unsound, in view of the testimony, which shows, without contradiction, that the figures (which in some of these samples cover fully more than half the surface of the goods) are woven upon the loom at the same time with the fabric itself. They are therefore just as much cotton cloth as the ground-work is, and the threads composing them as much entitled to a count. We then have a fabric which is, indeed, a cotton cloth, but which cannot, as a whole, be fairly classified by the use of the test which congress has provided as the sole one for classifying such cloth; and as it cannot, therefore, be put in any one of the classes of cotton cloth on which duty is laid as such, it must fall under the general clause. For these reasons I direct a verdict for the plaintiff for the full amount claimed, $983.93.