Q. Are the four rows around each cord made with one thread?-A. Two rows made with one thread. Just one right around. Might go around a dozen times, but one thread just the same.

Q. So in each instance where there appear four parallel rows that is done with one thread?-A. One thread.

Q. Then three threads made twelve parallel rows and three more threads made the three cords? A. Yes, sir.

Q. That is true in each of the gloves?-A. Yes, sir.

The other witness testified that he was experienced in and familiar with the making of gloves. He was shown Exhibit 2 and asked:

*

*

Q. * State how many chains of embroidery are on the outside of the back of that glove?-A. That depends on what you mean by chains.

Q. What do you mean by chains?-A. I would call every one of those rows extending from side to side, from end to end, a continuous thread that is not broken. Q. That is your idea of the word "chain"?—A. Yes, sir.

Q. With that idea, how many chains are on the back of that glove?-A. Three.

Q. How many on the inside?—A. Well, you mean of the total number there? I was taking one point there. It would be nine.

Q. How many on the inside?-A. The same number.

Q. * * * How many chains of embroidery appear on the back of that glove [Exhibit 3]?-A. Nine.

Q. On the inside?-A. The same.

He then testified that Exhibit 1 had the same thing on the inside and outside.

The attention of both witnesses was also called to what is referred to in the record as "the official sample in protest 368919" and each gave testimony relating thereto. We do not consider this evidence for two reasons: First, the record shows that the counsel for importers said that "protest 368919 is submitted on the official sample"; second, the decision of the Board of General Appraisers does not appear to refer thereto and the appellants' assignment of errors, which specifically sets forth the numbers of the protests to which it relates, does not include number 368919.

The substance of the appellants' contention is that the issue here is identical with that involved in United States v. La Fetra (178 Fed. Rep., 1006). This was a decision of the Circuit Court of Appeals sustaining the decision of the Circuit Court, which is found in 172 Federal Reporter, 297, where the Circuit Court sustained the decision of the Board of General Appraisers reported in T. D. 28966, in which case the board reversed the action of the collector.

The United States admits in its brief that "if the case turned only on the question of identity between the gloves in suit and the gloves passed on in the La Fetra case the position of the appellants would be difficult to challenge," and claims that the facts before us distinguish it from that case.

The cases above referred to involved the interpretation of paragraph 445 of the tariff act of 1897, which is identical in language with paragraph 459 of the act of 1909.

From the decision of the board in the La Fetra case we learn thatThe style of embroidery in issue is illustrated by Exhibits A, B, and C, which show three points each, each point having three distinct rows of stitching. Such stitching shows nine easily distinguishable chains of embroidery on the outside of the backs of the gloves and nine single rows of stitching on the inside of the backs thereof.

Judge Platt, in the Circuit Court, in affirming the decision of the board, said in substance that gloves exactly like those involved had been passed upon in that court in Trefousse et al. v. United States, and were found not to be subject to the cumulative duty provided in said paragraph 445. He further indicated that the Government had undertaken to show that the gloves in the La Fetra case were uniformly, commonly, and generally known in the trade as being "stitched or embroidered with more than three single strands or cords," and had failed in this contention, and for that reason, applying the principles of the Trefousse decision, he sustained the board. By referring to the Trefousse case, the opinion in which was also written by Judge Platt, it appears that the Board of General Appraisers had sustained the assessment for cumulative duty on certain gloves in said paragraph 445, and referring to the decision of the board Judge Platt said:

They followed a rule which they had adopted in G. A. 5595 (T. D. 25038), for the ascertainment of the number of strands or cords upon a glove, and found that by some peculiar method of reasoning, there were more than three single strands upon the gloves in question. It appears, however, that the same board, in G. A. 4241 (T. D. 19945), held that certain leather gloves, having upon them embroidery in three rows, but showing on the backs of the gloves that each row presented the appearance of three-plait crochet work, the effect being produced by the needle with only one cord or strand of thread, as is shown by the stitching through and on the inside of the glove, were in fact not stitched or embroidered with more than three single strands or cords. This decision, upon appeal, was affirmed by Judge Wheeler, in United States v. Robinson (C. C.) (124 Fed. Rep., 1013), and has been acquiesced in by the Government. It would seem that the Board of General Appraisers in such a matter as this, when the gloves in respect of the manner of stitching are manifestly the same as those considered in G. A. 4241, ought to have followed the very clearly expressed and well-defined rule governing the provision found in paragraph 445.

In the La Fetra case the Circuit Court of Appeals in a per curiam opinion said:

If this were a case of novel impression, more weight might be given to the argument advanced by the Government in support of its contention as to the meaning of the words "single strand." But the question has been several times before the courts, and it appears from examination of the samples X and Y that goods identically like the present importations were before this court when the decision of the Circuit Court in Trefousse v. United States (144 Fed. Rep., 708) was affirmed several years ago. (154 Fed. Rep., 1005; 83 C. C. A., 679.) A great deal of testimony has been taken in this case as to commercial designation, but it is so conflicting that we agree with the Circuit Court in the conclusion that it is impossible to deduce therefrom any semblance of uniformity.

It will be observed, therefore, that in the La Fetra case both the Circuit Court and the Circuit Court of Appeals held in effect that gloves embroidered in three rows but showing on the backs of the gloves that each row presented the appearance of a 3-plait crochet work, the effect being produced by the needle with only one cord or strand of thread,

as is shown by the stitching through and on the inside of the glove, were in fact not stitched or embroidered with more than three single strands or cords within the meaning of said paragraph 445.

If we assume that this be the correct interpretation of paragraph 459 of the act of 1909, the question is whether the gloves involved here are within that description, as before stated. The arguments upon each side before us proceed upon the theory that if the facts are the same the La Fetra case is controlling.

By their decision the board has in effect found that the testimony and the samples fail to establish that these gloves are not stitched or embroidered with more than three single strands or cords.

In order to warrant a reversal of the board, we must be satisfied that its finding is wholly without evidence to support it or that it is clearly contrary to the weight of evidence. United States v. Riebe (1 Ct. Cust. Appls., 19; T. D. 30776); Holbrook v. United States (1 Ct. Cust. Appls., 263; T. D. 31317).

Applying this rule, whatever may be our opinion upon the merits of this case or the controlling effect of the decisions to which we are cited, we are nevertheless constrained to say that we are unable from the testimony and the exhibits to find sufficient warrant to say that the judgment of the Board of General Appraisers ought to be reversed, and it is therefore affirmed.

SHELDON v. UNITED STATES (No. 522).1

1. "SHEARS" DEFINED.

The definition of "shears" in Knight's American Mechanical Dictionary is accepted as correct: A cutting instrument operating like scissors, but on a larger scale and somewhat differently shaped; the edges of the blades are beveled and the handles adapted for thumb and fingers, respectively, instead of being duplicates. 2. HAIR CLIPPERS WITH ROTARY KNIVES NOT SHEARS.

A tool supplied with rotating or reciprocating knives or cutters arranged for clipping the hair short or close is not to be deemed scissors or shears, but is a manufacture of steel not specially provided for, and the importation was properly assessed under paragraph 199, tariff act of 1909.

United States Court of Customs Appeals, May 29, 1911. APPEAL from Board of United States General Appraisers, Abstract 24074 (T. D. 31004). [Affirmed.]

Curie, Smith & Maxwell (W. Wickham Smith of counsel) for appellant.

D. Frank Lloyd, Assistant Attorney General (Frank L. Lawrence on the brief), for the United States.

Before MONTGOMERY, SMITH, BARBER, and MARTIN, Judges. BARBER, Judge, delivered the opinion of the court:

The only issue here is one of law. The articles involved are designated in the respective briefs as follows:

By the appellants as

Certain hair clippers or clipping shears of the kind ordinarily used by barbers in cutting hair.

1 Reported in T. D. 31657 (20 Treas. Dec., 1163).

By the appellee as—

Clippers for hair and beard.

They are used by barbers for clipping hair and beard. The board in substance described the article as a tool supplied with rotating or reciprocating knives or cutters so arranged as to allow the hair to be clipped close or short. No exhibit is before us and no testimony was taken before the board. The importation was assessed for duty by the collector at 45 per cent ad valorem as "manufactures of steel, not specially provided for" under paragraph 199 of the act of August 5, 1909.

The appellants contend that the articles are shears and dutiable at the rate of 75 cents per dozen, under paragraph 152 of the same act, as scissors or shears valued at over $1.75 per dozen. The Board of General Appraisers sustained the collectors' classification and assess

ment.

The only question before us is whether these articles are shears, because if not they were clearly correctly assessed by the collector. The apellants at the outset concede that there is no question of commercial designation. The board, from a description of the merchandise given in the record, no sample being before it, considered that the articles were not for tariff purposes included in the provision for scissors and shears in paragraph 152.

The claim of the appellants is that within the common and ordinary understanding of the meaning of the word "shears" the articles here in controversy are shears and should be so treated for duty purposes, while the Government's contention is that the common meaning of the word, especially in the expression "scissors and shears" as it appears in the statute, does not include the articles in question. As an aid in determining what is the ordinary and common meaning of the word "shears" we insert here its meaning as found in various dictionaries.

Standard Dictionary:

Any large cutting or clipping instrument worked by the crossing of cutting edges. Specifically: (1). An instrument in which two or more blades are made to cross by compressing a spring joint; as, sheep shears; clipping shears. (2). A large pair of scissors; specifically, in trade usage, a pair exceeding six inches in length.

Century Dictionary:

A cutting or clipping instrument consisting of two pivoted blades with beveled edges facing each other, such as is used for cutting cloth, or of a single piece of steel bent round until the blades meet, the elasticity of the back causing the blades to spring open when the pressure used in cutting has ceased. The latter is the kind used by farriers, sheep-shearers, weavers, etc. Shears of the first kind differ from scissors chiefly in being larger. Implements of similar form used for cutting metal are also called shears.

Worcester's Dictionary:

An instrument to cut with, consisting of two blades, usually moving on a pin, between which the thing to be cut, is interposed; a kind of large scissors.

Webster's International Dictionary:

Any of various cutting instruments operating by the action of opposed edges of metal.

Knight's American Mechanical Dictionary:

A cutting instrument, operating like scissors, but on a larger scale and somewhat differently shaped. The edges of the blades are beveled, and the handles adapted for thumb and fingers respectively, instead of being duplicates. They are used for tailors' use.

In various of the dictionaries there will be found more specific definitions of shears having relation to the purpose which they serve, such as tinman's shears, various kinds of bench shears, bar and metal shears, hydraulic shears, and others, and some of the definitions, one of which is embodied in the appellants' brief, as taken from Webster, include "A machine which cuts by means of a blade or set of blades working against a resisting edge, the material to be sheared being between the two."

These more specific definitions, we think, are not the kind of shears that Congress had in mind by the use of the words "scissors and shears" in paragraph 152. If the term "shears" be given the meaning claimed by the appellants, we see no reason why a large number of different tools used for the cutting of various articles, and never in common speech referred to as shears, might not, equally with the hair clippers involved in this case, be entitled to entry as shears. While in a sense the hair clippers involved in this case are, mechanically speaking, shears, yet the word "clippers" has a meaning of its own in the language. To illustrate, the Standard Dictionary defines clippers as, "An instrument for clipping hair, especially of horses"; the Century Dictionary as, "A cutting tool of the nature of shears; specifically, a tool with rotating or reciprocating knives used for cutting hair, and especially for clipping horses"; Knight's American Mechanical Dictionary as, "A machine for clipping hair; * * * * one form has a stationary knife and several spiral knives on an axis, acting against the edge of the former. * * * A more usual form has a serrated knife reciprocating shearwise, with a similar plate, stationary or also reciprocating."

We are entirely clear that the word "shears" in the paragraph under consideration is not used in these special or mechanical senses. The common understanding of the word "shears" is admirably expressed in the quotation above, taken from Knight's American Mechanical Dictionary, as

A cutting instrument operating like scissors, but on a larger scale and somewhat differently shaped. The edges of the blades are beveled, and the handles adapted for thumb and fingers, respectively, instead of being duplicates.

We think the term "barbers' hair clippers" or "clippers" in common understanding has come to have as fixed a meaning in the