author: PER CURIAM.

text:
    RAMSAY & GATLIN CONST. CO. et al. v. VINCENNES BRIDGE CO.
    No. 5446.
    Circuit Court of Appeals, Sixth Circuit.
    June 9, 1931.

      H. R. Dysard, of Ashland, Ky. (Dysard & Miller, of Ashland, Ky., on the brief), for appellants.
    Erank Malin, of Ashland, Ky., and Seymour Riddle, of Terre Haute, Ind. (Hager, Prichard & Malin, of Ashland, Ky., on the brief), for appellee.
    Before DENISON, and MACK, Circuit Judges, and RAYMOND, District Judge.
   PER CURIAM.

The Bridge Company, as plaintiff brought this suit in the court below against the Construction Company and the Guaranty Company. The Bridge Company became the subcontractor in the erection of a hotel, pursuant to a contract between the owner and the Construction Company, and in pursuance of which contract the Construction Company, as principal, and the Guaranty Company, as surety, gave to the owner a bond which provided for, among other things, “payment of all labor and material furnished to the contractor.” The Bridge Company, being unpaid, brought this suit in the court below against the Construction Company and the surety and recovered judgment. On appeal therefrom to this court the first question presented was whether, under the applicable law, the Bridge Company could sue upon this bond to which it was not a party, and being without the aid of any statutory authority so to do. We certified this question to the Supreme Court. That court has now dismissed the certificate, holding that an answer is unnecessary, because in a suit upon the same bond, and by decision rendered since our certificate, the Kentucky Court of Appeals (Ætna Casualty & Surety Co. v. Wheeler & Putnam, 239 Ky. 247, 39 S.W. (2d) 234) has held that one in plaintiff’s position has a right of action, and because we should follow that decision (51 S. Ct. 484, 75 L. Ed. -).

There remains for decision by us only the question as to whether the . jury was correctly charged regarding the measure of damages which the Construction Company wished to offset against the subcontract price because of the subcontractor’s delay. The record presents a confused issue as to how much of this delay was respectively due to the default of the subcontractor and to the owner’s requirement, acquiesced in by the contractor, for “extras.” This was a subject-matter especially fit for arbitration and decision by the architect as the contract provided; but for some reason, which the record does not reveal, both parties joined in discarding the architect and substituting a jury-

The general rule undoubtedly is, that where the contract provides that the contractor shall pay the owner a penalty for delay beyond the agreed time, and the subcontractor agrees with the contractor to indemnify him against such a penalty, so far as caused by the subcontractor’s default, and delay is caused by the owner’s requirement of extra work, there is no liability against contractor or subcontractor for the delay penalty so resulting. (Cases cited in 9 C. J. 787.) The court charged accordingly"in general effect; but there was specific contest as to two items. One was that after the building contracts were made the architects changed their drawing for the structural steel work which the Bridge Company was to perform, so as to require additional bracing. The other item was that it developed, as had been the fact but as had not been observed, that an adjacent building so overhung the new wall that it was necessary to cut some channels in the side wall of this adjacent building. The additional bracing seems to be extra work which the owner might require and which would pro tanto postpone the penalty date. The channeling, though not included in the specifications, was work necessarily incidental to the contract performance; its necessity was as obvious to the Bridge Company as to any one else; and it is to be classed with those unexpected difficulties which develop, the burden of which the contractor must carry and which will not excuse delay. It is strictly comparable to nonanticipated rock blasting in the excavation (6 R. C. L. 909, Sec. 295; 9 C. J. 847, Sec. 186; Harrison Granite v. Stephens, 160 Mich. 51, 125 N. W. 36), rather than to delivering the site, ready to begin.

Our conclusions as to these two items are based upon the record before us, which does not include the specifications themselves, but only general statements.

For the error stated, the judgment must be reversed,' and the case remanded for a new trial.


source: Caselaw Access Project

license: Public Domain

text:
    KERNS v. UNITED STATES.
    No. 5819.
    Circuit Court of Appeals, Sixth Circuit.
    June 16, 1931.
    I. H. Polozker and Leonard S. Coyne, both of Detroit, Mich., for appellant.
    Gregory H. Frederick, U. S. Atty., and George S. Fitzgerald, Asst. U. S. Atty., both of Detroit, Mich.
    Before DENISON, MOORMAN, ■ and HICKENLOOPER, Circuit Judges.
   PER CURIAM.

Appellant was convicted of conspiracy to violate the National Prohibition Act. The. verdict was rendered and the sentence imposed on May 23, 19301. An appeal was immediately taken, citation being returnable on June 2*3, 1936. The record indicates a ease of little complexity, occupying apparently two days upon the trial. The bill of exceptions devoted to the narrative form of the testimony occupies less than sixty pages.

fl] Pursuant to various extension orders the record was not filed in this court until De^ eember 10, after more than six months’ delay. It is difficult to conceive that there could have been any sufficient reason why the record was not'completed and filed within sixty days; and this situation invites that study of the record, on our own motion, which shows that while the- time to make return to the appeal expired on June 23, there was no order purporting to enlarge that time until an order entered by the district judge on August 29. At that time an order of extension could be made only .by this court, and the appeal is subject to dismissal for that reason.

After the esise had been twice reached for argument and twice continued, a third request for continuance was denied, but we agreed to excuse counsel from oral argument and to accept typewritten briefs. The contention upon which appellant seems to have chiefly relied is that certain evidence was inadmissible, because secured by wire tapping. This question is fully covered by Olmstead v. United States, 277 U. S. 438, 466, 48 S. Ct. 564, 72 L. Ed. 944, 66 A. L. R. 376; and the complaint presents nothing of substance. Whether the testimony sufficiently identified Kerns as one of the persons talking was for the jury. ,

The brief also alleges an illegal search of appellant’s "garage. Appellant did not make, in advance of trial, any motion to suppress the evidence obtained by this search, and no reason appears excusing the failure to make such motion. The objection as to an illegal search was made upon the trial and overruled. Even if it were now open to consider the question, the illegality of the search does not so plainly appear as to indicate error in receiving the testimony a.t the time the0 objection was made. After the circumstances as to the examination of the ear and the reasons for it were fully developed, no- motion was made to strike out the testimony. There is nothing substantial upon which to base a claim of error.

Both because the record was not filed in time and because the objections presented are frivolous, the appeal is dismissed. Mandate will issue forthwith.


author: AVIS, District Judge.

text:
    CAMDEN COUNTY BEVERAGE CO. v. WYNNE, Supervisor of Permits, et al.
    District Court, D. New Jersey.
    May 25, 1931.
    See also (D. C.) 46 F.(2d) 648.
    Walter H. Bacon, Jr., of Trenton, N. J., for petitioner.
    Phillip Forman, U. S. Atty., of Trenton, N. J., and Richard Hay Woolsey, of Philadelphia, Pa., for defendants.
   AVIS, District Judge.

On January 27, 1931, petitioner filed its petition, alleging that on December 2, 1930, and for some time prior thereto, it was engaged in the lawful manufacture of cereal beverages, containing less than one-half of 1 per cent, of alcohol by volume, and that its place of business was located in Camden in the state of New Jersey. The petition alleged that its business had been conducted for the year 1930 under Permit No. NJL 51.

It is further stated that on or about August 29,1930, petitioner made application for a permit to continue its operations during the year 1931; and that, without a hearing, the defendants, or one of them, advised petitioner that its application for renewal had been disapproved.

The petition prays that this court review the action of the defendants in refusing to renew petitioner’s permit, for a rule to show cause, and an injunction requiring the defendants to issue a permit for the year 1931.

A rule Was issued on this petition, and the matter has been presented to the court by oral argument and brief.

The letter of disapproval sent by the supervisor to the petitioner was not set out in the petition, but was presented to the court at the time of the argument, and the text thereof is as follows:

“This application is disapproved for the reason that under your present permit you have conducted your business in such a manner as would not warrant further confidence on the part of the Government.
“You may apply for a hearing within 10 days, at which time you may have permission to offer testimony which would tend to alter this decision.”

The admitted facts appear to be: That the application for a. renewal permit for the year 1931 was duly filed; that no further steps were taken by the applicant or the supervisor until the dispatch and receipt of the aforesaid letter.

Petitioner claims that this is a valid and legal refusal of the permit, which may be reviewed by the court; that by reason of the delay and failure of the supervisor to act promptly, and the decision not being supported by any facts or testimony, it is without warrant in law and is arbitrary and capricious.

Claim is made that, by reason of delay in notifying the petitioner of the refusal to issue its renewal permit, the court is authorized to make an order for the issuance of the 1931 permit. In this connection petitioner relies mainly on the ease of Pennington, Prohibition Administrator, v. Walter (C. C. A. 3) 29 F.(2d) 912. This decision involved an order of revocation of a permit, and was based upon section 9, tit. 2, of the National Prohibition Act (27 USCA § 21), which, in part, reads as follows: “If the commissioner has reason to believe, that any person who has a permit is not in good faith conforming to the provisions of this chapter, * * * the commissioner or his agent shall immediately issue an order citing such person to appear before him. * * * ”

Under this law, the Circuit Court of Appeals, in that ease, held that the permittee was entitled to the benefit of any unexplained delay of the commissioner, and sustained the order of the District Court reinstating the permit.

However, the petition in the instant ease is not based upon a revocation of a permit, but a refusal to issue a new one for a succeeding year, and I am satisfied that the statute referred to has no bearing on the question here involved. See Matoni v. Campbell (D. C. N. Y.) 40 F.(2d) 749. In my opinion, there is no power conferred upon this court to compel the issuance of a new permit, based upon the failure of the commissioner to act immediately.

However, I do not wish it understood that I approve of the delay of the supervisor in notifying the petitioner of the disapproval of the application. There could be no excuse for delaying the notification, unless the impelling evidence was not in the hands of the. supervisor at an earlier date. From my knowledge of the whole circumstance, I am inclined to believe that the notice was unnecessarily delayed. Owing to the fact that the permittee was entitled to a hearing, the text of the letter was inappropriate, ■ as I believe the supervisor should have withheld any positive decision until the petitioner had an opportunity to produce its proofs.

The second question arising is whether the letter of the supervisor was such a decision that it may be reviewed by this court.

The law is settled that the review is not a trial de novo, but the duty of the court is to examine the record for the purpose of ascertaining if the action of the commissioner is based upon an error of law, or is wholly unsupported by the evidence, or clearly arbitrary and capricious. Ma-King Products Co. v. Blair, 271 U. S. 479, 46 S. Ct. 544, 70 L. Ed. 1046.

There is some authority for the theory that the refusal of an application by the commissioner without a hearing may be made the basis of an order by the court directing the •issue of a new permit, but this does not appear in any case, where, as in the instant case, the applicant was given an opportunity to have a hearing and present his evidence. The procedure approved by the courts in this circuit is stated quite clearly in the opinion by Judge Dickinson in the ease of Charles D. Kaier Co. v. Doran (D. C., E. D. Pa.) 42 F.(2d) 923, 924, wherein the court said: “The plaintiff has held that kind of permit which expires wiji the calendar year. It may be renewed or reissued for another year, but the mode of renewal is the subject of regula^ tion. The administrator passes upon the application in the exercise of his executive judgment. If ’refused/, a hearing is granted at which the facts are developed. The' judgment of refusal must then be shown to have support in the facts. The fact, as here, that a breweay has held a permit for many successive-years is not only a fact but one of much significance. None the less no faithful administrator can renew a permit which should not be in existence, and should not be forced by the courts to renew it.” (Italics mine).

This method of procedure is further confirmed by„ the same judge in the case of Mahanoy Mfg. Co. v. Doran (D. C.) 40 F.(2d) 561, 562, wherein it was decided that the evidence was not sufficient to sustain the revocation of a permit, but the court said: “The conclusion reached is that the revocation of the permit should have awaited evidence of the guilt of the brewery, or to allow the permit to expire by lapse of time, and the exercise of judgment await the application for its renewal.”

In the ease of Burns v. Doran (C. C. A. 3) 37 F.(2d) 484, 485, Judge Kirkpatrick, in his opinion in the court below which was affirmed by the Circuit Court of Appeals, said: “It is to be noted that in the case of a revoca^ tion the National Prohibition Act (27 USCA) provides for a hearing as a condition precedent to the Commissioner’s action. No such hearing is required in the ease of a refusal of an original application.”

Of course, this refers to the statutory requirement, and does not obviate the necessity of a hearing for the purpose of making a record for court review.

The doctrine that on original applications the commissioner acts primarily as an executive is approved by the Circuit Court of Appeals in this circuit in the case of Doran v. Eisenberg, 30 F.(2d) 503, in the following language: “The Prohibition Administrator refused the application. This was followed by a hearing at which the Hearer, on his finding -of facts, recommended that the permit be denied. Again the Administrator refused the application.”

In the ease of Stroh Products Co. v. Davis (D. C. Mich. S. D.) 8 F.(2d) 773, 774, a similar question arose, and the court, in reciting the proceedings, said: “Plaintiff applied for a renewal of its permit for the year 1925, but was informed, four or five days before the expiration of its 1924 permit, that its application had been denied. It thereupon filed its original bill of complaint in this court, upon which a temporary restraining order issued. Upon hearing on an order to show cause issued simultaneously therewith, it appeared that no hearing before the Prohibition Director had been given to the plaintiff before the refusal of its application for a permit. This court, believing that under the applicable provisions of section 5 of title 2 of the National Prohibition Act (Comp. St. Ann. Supp. 1923, § 10138½bb [27 USCA § 14]), and upon the authority of Feil Brewing Co. v. Blair (D. C.) 2 F.(2d) 879, the plaintiff was entitled to a hearing before its application was either revoked or a renewal denied, referred the matter back to the prohibition director, with instructions to grant a hearing.”

In Smith v. Foster (D. C., S. D. N. Y.) 15 F.(2d) 115, the commissioner had refused the application without a hearing, although such hearing was requested by applicant. The court, after stating that under the statute no hearing is required before granting or refusing a permit, disposed of the action as follows: “From what has been said, the appropriate relief in this case seems clear. The Commissioner having denied the applicants a hearing, there is no record before the court such as the statute contemplates as a basis for the Commissioner’s ruling which is to be reviewed, or the ruling of the court upon the review thereof. The Commissioner’s position will therefore be reversed, with directions to reinstate the plaintiffs’ application upon the refiling of a proper bond, and to promptly thereafter grant the plaintiffs a hearing upon all objections which may be made to the issuance of a permit.” 15 F.(2d) page 118.

Judge Woolley, of this circuit, in the case of Yudelson v. Andrews (C. C. A.) 25 F.(2d) 80, quite clearly points out the method of procedure which, I believe, gives this court a precedent for its decision in the instant case.

The most recent decision on the rights of the court to review the acts of an administrator is found in Liquorgel Co. et al. v. Doran (D. C., E. D. N. Y.) 46 F.(2d) 329. Judge Galston in that case said:

“The difficulty with the matter in this cause is that there was no hearing before the commissioner.
“Attached to the answer is a letter from the defendant Campbell, the Prohibition Administrator, to the Vineyard Products Manufacturing Company, in response to the application for the supplemental permit, stating:
“ ‘This application has been disapproved for the reason that the alcohol is excessive. The alcohol in products of this type must not exceed &%, in accordance with the present standards.’
“So far as the proofs go, that is the only action that this court is called upon to review. There was no testimony taken before the Prohibition Administrator or before the commissioner, and in the absence of proof that the departmental action was clearly arbitrary or capricious or based upon error of law, as was stated in Joy Chemical Co., Inc. v. Campbell (D. C.) 41 F.(2d) 961, the action of the Prohibition Administrator cannot be set aside.” 46 F. (2d) page 330.

The petitioner complains that the supervisor delayed action on the application to such a late date as to embarrass the petitioner in the conduct and continuance of a well-established business. I believe that the petitioner did not follow this application as is intended by the law and regulations. It did not ask for a hearing. So far as the proofs show, it made no effort to ascertain the attitude of the- supervisor, and took no affirmative action of any character until it received the letter hereinbefore referred to.

It had applied for the permit, and it was its duty to follow up its application. If a hearing had been applied for and refused, the court could have ordered the supervisor to grant a time when testimony might have been produced.

“There is no provision requiring a hearing before refusing a permit. The approach and contact with the department is through the application to be filed. In no case is there a requirement that a permit shall be issued. Ma-King Products Co. v. Blair, 271 U. S. 479, 46 S. Ct. 544, 70 L. Ed. 1046, (opinion filed June 1, 1926)'points out the large and important discretionary powers and duties of the Commissioner under the act. He has no greater duty than to consider fairly all the relevant facts presented by the application. We see no reason why there should be a formal notice or formal hearing before rejection, unless requested by applicant, showing sufficient reasons therefor.” Chicago Grain Products Co. v. Mellon (C. C. A. 7) 14 F.(2d) 362, 363.

The burden of satisfying the supervis- or as to its. right to receive a permit is on the applicant. “The burden is not upon the government to show that an applicant is not entitled to a permit, but is upon the applicant to show that he is entitled to one.” Id. (C. C. A.) 14 F.(2d) 364.

In this circuit, Judge Watson, deciding the ease of Shamokin Beverage & Ice Co. v. Wynne (D. C., M. D. Pa.) 41 F.(2d) 791, cited Yudelson v. Andrews, supra, and said: “The contention of counsel for plaintiff is, that it was the duty of the government to show affirmatively that the applicant was not fit rather than1 the duty of the applicant to show that .it was fit. With this contention I cannot agree. On the contrary, the exact reverse is true. It is not necessary for an administrator to establish by testimony before the hearer facts showing affirmatively the unfitness of the applicant to receive a permit, but the burden is upon the applicant to show that he is a fit person to receive a permit.”

See, also, Unger v. Campbell (D. C., E. D. N. Y.) 43 F.(2d) 461, and Ruderman v. Campbell (D. C., E. D. N. Y.) 43 F.(2d) 165, 166.

The court has no authority to grant the prayer of the petition. If the petitioner desires a hearing for the purpose of presenting testimony to sustain its application, an order will be made requiring the supervisor to grant and hold such a hearing. If not, the petition will be dismissed.


author: BYERS, District Judge.

text:
    In re RENA.
    No. 145490.
    District Court, E. D. New York.
    May 21, 1931.
    Merton A. Sturges, District Director of Naturalization, of New York City, in opposition.
   BYERS, District Judge.

The above-named applicant is a native-born Filipino, whose birth occurred on November 24, 1896. He enlisted in the United States Navy at Cavite, P. I., on October 11, 1916, and was honorably discharged on October 9, 1920, at Ft. Monroe, Va.; he reenlisted on November 12,1920, at Brooklyn, N. Y., and was honorably discharged at Hampton Roads, Va., on October 11,1922.

Ilis petition is resisted by the Department of Commerce, because it was not filed within six months after the date of his last honorable discharge from the Navy. The applicable statute is title 8 U. S. C. § 388 [8 USCA § 388], as amended March 2, 1929, and reads as follows: “§ 388. Filipino declarants honorably discharged from Navy, Marine Corps, or Naval Auxiliary Service; Porto Ricans or aliens serving in Army, Navy, Marine Corps, Coast Guard, or United States Government vessels, etc.; residence. Any native-born Filipino of the age of twenty-one years and upward who has declared his intention to become a citizen of the United States and who1 has enlisted or may enlist in the United States Navy or Marine Corps or the Naval Auxiliary Service, and who, after service of not less than three years, may be honorably discharged therefrom, or who may receive an ordinary discharge with recommendation for reenlistment; or any alien, or any Porto Rican not a citizen of the United States, of the age of twenty-one years and upward, who has enlisted or entered or may hereafter enlist in or enter the armies of the United States, either the Regular or the Volunteer Forces, or the National Army, the National Guard or Naval Militia of any State, Territory, or the District of Columbia, or the State militia in Federal service, or in the United States Navy or Marine Corps, or in the United States Coast Guard, or who has served for three years on board of any vessel of the United States Government, or for three years on board vessels of more than twenty tons burden, whether or not documented under the laws of the United States, and whether public or private; which are not foreign vessels, and while still in the service on a reenlistment or reappointment, or within six months after an honorable discharge or separation therefrom, or while on furlough to the Army Reserve or Regular Army Reserve after honorable service, may, on presentation of the required declaration of intention petition for naturalization and may be naturalized without complying with the requirements of residence within the United States and within the county. (As amended Mar. 2, 1929, c. 536, § 6 (e), (d), 45 Stat. 1514.)”

The government contends that the foregoing must be construed so that the words “or within six months after an honorable dis-. charge or separation therefrom,” in the sixth line from the end, should be read in connection with so much of the section as precedes the semicolon, namely, that portion which refers to “Any native-born Filipino of the age of twenty-one years and upward.”

It is believed that this contention is opposed to the sense and purpose of the statute, and to its grammatical construction.

In Toyota v. U. S., 268 U. S. 402, at page 410, 45 S. Ct. 563, 565, 69 L. Ed. 1016, the court said: “But we hold that until the passage of that act [the statute under examina^ tion], Filipinos not being 'free white persons’ or 'of African nativity’ were not eligible, and that the effect of the Act of 1918 was to make eligible, and to authorize the naturalization of, native-born Filipinos of whatever color or race having the qualifications specified in the seventh subdivision of section 4.”

With this in mind, it becomes apparent that two classes of persons were within the contemplation of this statute; that is, (a) Filipinos, and (b) “any alien, or any Porto Rican not a citizen of the United States, of the, age of twenty-one years and upward.”

The first class was the subject of so much of the law as precedes the semicolon, and the second class was composed of those referred to in the balance of the statute. This clearly appears from the closing sentence of the section in question, to the effect’ that any alien or any Porto Rican not a citizen of the United States, who has served in any of the various organizations specified, may, on presentation of declaration of intention and petition, “be naturalized without complying with the requirements of residence within the United States and within the county.”

Filipinos could not be comprehended within such provision because they are- not aliens (See Toyota v. U. S., supra), and consequently residential requirements could not apply to them, or be relaxed in their favor. Hence, the second subdivision of the statute was intended to operate in favor of persons who could be naturalized only by the conventional process in the absence of enlistment in any of the services specified.

Considered in this light, it becomes apparent that Congress intended that Filipinos, although not eligible to citizenship, should enjoy that privilege in the event of their having served a period of enlistment in the Navy or Marine Corps or the- Naval Auxiliary Service for a period of not less than three years terminating in honorable discharge; all other Filipinos are still under the disability stated by the Supreme Court in the opinion to which reference has been made.

On the other hand, aliens and citizens of Porto Rico who could acquire citizenship in the usual way are relieved of the residential requirement in the event that they have enlisted in any of the various services specified and been honorably discharged, and that their application is made during the period of such service or within six months thereafter.

In the brief of the government, it is argued that the construction here adopted is unreasonable because Congress should not be thought to have intended to permit Filipinos greater latitude than other aliens. The mistake in this reasoning has been pointed out; Filipinos are not aliens, and cannot, in general, become citizens of the United States, and Congress had in mind to admit only such Filipinos as eould-meet the requirements stated in this statute.

Also it is urged that all doubts upon the subject of acquiring citizenship should be resolved in favor of the United States.

The theory upon which this decision proceeds is not opposed to such a doctrine, because no question of strict construction or loose construction is here presented.

The section, construed in its natural sense and according to its grammatical structure, clearly provides that Filipinos who are able to present evidence of compliance with the requirements stated are entitled to be admitted to citizenship, and there is no limitation to the effect that the application must be made within six months after the expiration of the enlistment which has resulted in honorable discharge.,

The foregoing has been submitted to Judges Inch and Galston, who have had similar cases under consideration, and they authorize the statement that the views herein expressed have their approval. Since this opinion was written, the case of In re Cariaga (D. C.) 47 F.(2d) 609, has been examined, and the conclusions of Judge Tuttle axe found to be the same as herein set forth.

' In accordance with the request of the government, an exception to this ruling is recorded.

Petition granted.


author: COLEMAN, District Judge.

text:
    HAMMOND v. ROBERTSON, Commissioner of Patents.
    No. 1395.
    District Court, D. Maryland,
    May 26, 1931.
    Hammond & Littell, of New York City, and Thomas W. Y. Clark, of Baltimore, Md., for plaintiff.
    J. F. Mothershead and T. A. Hostetler, both of Washington, D. C., and William C. Baxter, Asst. U. S. Atty., of Baltimore, Md., for defendant.
   COLEMAN, District Judge.

This is a suit brought under section 4915 Rev. St. (35 USCA § 63), to require the issuance of a patent, which has been refused by the Commissioner, on a divided rear bumper for automobiles, consisting of what are commonly known as bumperettes; that is, a rear bumper which does not extend entirely across the width of the automobile, but is constructed in two sections, each one of which extends only from one side of the frame of the chassis across the fender on that side. A threefold advantage is claimed for plaintiff’s device over the straight bar bumper, in that it (1) permits ready access to the spare tire on the rear of the car; (2) reduces the over-all length of the car; and (3) prevents “hooking” of other ears, etc., by the bumper ends. Upon rejection of plaintiff’s application by the Commissioner of Patents, plaintiff appealed to the Court of Appeals of the District of Columbia and there the Commis-sioner was affirmed. In re Hammond, 58 App. D. C. 98, 25 F.(2d) 359. The Acts of March 2d, 1927, and March 2d, 1929, amending Rev. St. 4915 (35 USCA § 63), and providing that the remedy by bill in equity would only exist in the event that the applicant had not appealed to the Court of Appeals of the District of Columbia (for which, by the later of the two amendments the Court of Customs and Patent Appeals was substituted), did not become effective until after plaintiff’s appeal in the present case from the Commissioner to the Court of Appeals of the District of Columbia had been taken. Therefore, this proceeding is governed by section 4915 as it stood prior to its amendment. The Commissioner of Patents has accepted service, and no question of jurisdiction arises in the preseUt ease;

It appears that the divided rear bumper, in one form or another, is now used almost exclusively throughout the country on automobiles. The present plaintiff has had two patents issued to him in the art. The first No. 1,476,807, issued May 3, 1921, covers hinged straight-bar bumpers which, by reason of the hinged member, can be brought very near to the spare tire to reduce the overall length of the car, and also permits of ready access to the spare tire without the necessity of lifting the tire over the bumper bar. When the original application for this patent was filed (April 23, 1917), it contained a claim which, if it had been granted, would have covered all that the plaintiff is now seeking. However, the Patent Office did not allow this claim but required division whereby the claims were confined to hinged bumpers, with the result that the application now in suit was prosecuted separately. It became involved in interferences terminating favorably to the plaintiff, as a result of which the following single claim (No. 5) of the present application was allowed by the Patent Office: “An automobile bumper comprising a one-piece strap having a re-curved end portion and' having substantially parallel side portions, and means for securing the ends of the side portions to a chassis side bar.”

During the pendency of the interference involved in the application in suit, a further divisional application was filed to cover subject-matter not involved in these interferences, and this application resulted in the granting to the plaintiff, on December 16,1924, of the second patent, - No. 1,519,549, reissued June 8, 1926, as No. 16359. Some of the claims of this patent call for interconnection of the two bumperettes, namely, the bumper-ettes are interconnected by means of the spare tire supporting members, or by means of a crossbar between the two bumperettes immediately behind the spare tire, so that a blow on either one of the bumper arms would be transmitted through the arm and the spare tire supporting members, or the cross-bar, to the bumperette at the other side of the ear, thus providing a rigid interconnected structure.

Plaintiff claims that these patents still leave him without protection on the use of bumperettes independently mounted at each side of the spare tire, and not cross-connected. Fifteen claims are involved in the application in suit, but plaintiff is in fact not stressing the allowance of other than claims' Nos. 3, 4, 9, and 15, of which claim No. 15 is the broadest, and reads as follows: “The combination with the rear of an automobile provided with rear wheel fenders and a rear-wardly extending tire carrier, said tire carrier determining the maximum rearward extent of the ear, of means for affording protection to said fenders without increasing the over-all length of the automobile, comprising impact members located in the space at each side of the tire carrier and the rear of the fenders, said impact members adapted to protect the fenders while permitting ready access to the spare tire on the tire carrier.” Plaintiff claims that the granting of these claims is essential to supply a gap in his existing wall of patent protection, and further that the Patent Office’s refusal to grant the present application, in effect, casts a reflection on the patent which was issued on the divisional application. It appears that every divided rear bumper manufacturer in the United States today pays a royalty under the license of the present application, and that from October 1, 1929, to October 1, 1939, over 2,-309,909 rear bumpers were manufactured under the aforementioned patents issued to the plaintiff, and under the license of the present application.

A careful reading of claims Nos. 3, 4, 9, and 15 upon which plaintiff primarily relies, and indeed of all of the other ten claims which were rejected by the Patent Office, satisfies the court that all of them are either (a) so broadly stated as to be covered by one or more of the claims of the Simms patent, issued March 6, 1906, hereinafter discussed, or (b) are not capable of patentable differentiation from one or more of the claims allowed in plaintiff’s patent No. 1,519,540, issued on the divisional application, and its reissue No. 16,359.- This being true, and it also being true that the present proceeding is not in the nature of an appeal but rather a trial de novo, with all the customary power of an equity court to hear the evidence fully and to make its own findings, it becomes unnecessary to take up, seriatim, the specific grounds on which the Patent Office rejected the different claims, which rejection was affirmed without modification by the Court of Appeals in the District of Columbia.

Claim 3 reads as follows: “In combination, a motor vehicle frame and rear wheel fenders, and independent rear bumper members, one for each rear wheel fender, and each comprising a flat steel spring leaf constituting impaet-reeeiving means connected to the side of the vehicle frame and projecting laterally outward to a point adjacent the outer side of the adjacent fender, and at a point rearwardly of the fender, the same bumpers offering substantially no obstruction at the rear of the vehicle inwardly beyond the sides of the frame, the impact and attaching portions of the bumpers being integral and formed of metal throughout, and all parts of the bumpers from their points of attachment at the sides of the frame being flexible throughout.” Claim 3 of Simms reads as follows: “A buffer for motor-vehicles made in two sections, each of said sections comprising a yielding pad, a support for the same and a yielding connection between one end of said support and the vehicle, substantially as described,” The Simms specifications provide that the buffers may be fitted in pairs to the front, “and, if desired, to the back of the vehicle frame. * * * ” Figures 12 and 13 of the drawings accompanying the Simms specifications clearly embrace the same basic structure as that contemplated by claim 3 of the application in issue. Although when the Simms patent was issued no device was known for carrying spare tires on the rear of automobiles, nevertheless, the Simms device permits access to the rear end of the ear in the same manner, and to the same extent, as does plaintiff’s structure.

Claim 4, in issue, is substantially identical with claim 3, and is, therefore, equally anticipated by Simms. Claim 9 reads as follows: “The combination with the rear of an automobile of a pair of independent bumper members, comprising spaced impact portions connected at their innner end to the automobile frame and extending outwardly from each side thereof to a point adjacent the outer edge of the nearest fender and means extending from the outer end of said impact portions back to the automobile frame and connecting said outer end to the automobile frame.” This claim is so broadly stated as clearly not to be capable of differentiation from Simms. Claim 15 has already been quoted. Claim 2 of Hammond patent No. 1,519,540, and reissue No. 16,359, reads as follows: “In combination with the rear end of an automobile provided with the usual chassis frame mud guards and spare tire holder, a pair of bumper members each provided with a resilient impact portion extending outwardly adjacent the rear fender to protect the same, and means in addition to said chassis frame supporting the bumper members in spaced apart operative position at the sides only of the spare tire holder.” Clearly, a structure built in accordance with the former claim would meet all of the requirements of the latter claim, and vice ver-' sa.

We need not consider patent No. 1,062,-462 to Hamishfeger, issued May 20, 1913, because that does not embrace a bumper, but merely a tire support. Patent No. 1,050,405 to Van Gelder, issued January 14,1913-, does embrace a bumper or fender. However, in view of the fact that in both claims allowed in this patent, a basie feature is the resilient sheet metal plate of entirely different design and construction from anything disclosed in the specifications or drawings of the present application, this patent can hardly be said to be an apposite reference, not to mention other features which may in and of themselves differentiate it. The remaining reference cited, namely, patent to Hoover No. 119,306, issued July 16, 1916, is clearly not germane, because it embraces exclusiyely a single or continuous spring buffer bar, and not independent members.

For the aforegoing reasons we are forced to the conclusion that there is no real structural line of division between any of the present claims and the Simms patent, or the plaintiff’s patent No. 1,519,540, and reissue No. 16,359. We do not concede that both of the patents already issued to the plaintiff still leave him without protection on the use of bumperettes independently mounted at either side of the spare tire, and not eross-con-neeted. There is no patentable structural distinction betwen the figures accompanying the application in suit, and the figures of patent No. 1,519,540, in so far as the transmission and absorption of impact on either bumperette is concerned. In all four instances the blow travels through the entire structure interconnected in substantially the same way; that'is, through the arms and the tire supporting members (or the crossbar) from one bumperette to the other. It is only by a modification of the structure disclosed in the drawings of the application in suit that plaintiff can establish the distinction, and if such modification be warranted with respect to any of the drawings in the present application, it is equally permissible with respect to the drawings in patent No. 1,519,540.

While it is true that the issuance of a patent for an improvement on a prior invention, or a different species of a prior invention, is no bar to the subsequent granting of claims to that prior invention on an earlier filed application, if the broad claims (as here) were presented before issuance of the subordinate patent, nevertheless, it is not true that one has a right to a patent on a structure not divisible from that shown in a prior pending application, embracing claims broad enough to read thereon, and then be granted claims in the prior application broad enough to read on both. The present plaintiff, having filed a divisional application, is not entitled to an allowance of the present claims, there being no structural line of division between the claims embraced in both cases.

This ease is controlled by the rule laid down by the Supreme Court in Miller v. Eagle Manufacturing Co., 151 U. S. 186, pages 198, 199, 201, 14 S. Ct. 310, 315, 38 L. Ed. 121, where the court said:

“The result of the foregoing and other authorities is that no patent can issue -for an invention actually covered by a former patent, especially to the same patentee, although the terms of the claims may differ; that the second patent, although containing a broader claim, more generical in its character, than the specific claims, contained in the prior patent, is also void; but that where the second patent covers matter described in the prior patent, essentially distinct and separable from the invention covered thereby, and claims made thereunder, its validity may be sustained.
“In the last class of cases it must distinctly appear that the invention covered by the later patent was a separate invention, distinctly different and independent from that covered by the first patent; in other words, it must be something substantially different from that comprehended in the first patent. It must consist in something more than a mere distinction of the breadth or scope of the claims of each patent. If the ease comes within the first or second of the above classes, the second patent is absolutely void.
“It is insisted on the part of the appellee that ‘whether this invention shall be protected in part of its features by one patent, and as to the rest by another, or shall be completely protected by a single patent, is a matter which concerns solely the patent office and the inventor.’ Under the rule announced in the foregoing authorities, this proposition cannot be sustained. * * *
“A single invention may include both the machine and the manufacture it creates; and in such eases, if the inventions are really separable, the inventor may be entitled to a monopoly of each. It is settled, also, that an inventor may make a new improvement on his own invention of a patentable character, for which he may obtain a separate patent; and the cases cited by the appellee come to this point, and to this point only: That a letter patent may be granted where the invention is clearly distinct from, and independent of, one previously patented. * * *
“It is not the result, effect, or purpose to be accomplished which constitutes invention, or entitles a party to a patent, but the mechanical means or instrumentalities by which the object sought is to be attained; but a patentee cannot so split up his invention for the purpose of securing additional results, or of extending or of prolonging the life of any or all of its elemental parts. Patents cover the means employed to effect results. Rubber Tip Pencil Co. v. Howard, 20 Wall. 498, 507 [22 L. Ed. 410]; Fuller v. Yentzer, 94 U. S. 288 [24 L. Ed. 103].”

See, also, Vapor Car Heating Co. v. Gold Car Heating & Lighting Co. (D. C.) 296 F. 188; Id. (C. C. A.) 16 F.(2d) 194; Id., 268 U. S. 705, 45 S. Ct. 639, 69 L. Ed. 1167.

Por the aforegoing reasons, it being determined that the claims here in controversy are not patentable, the bill of complaint must be dismissed.


author: CAMPBELL, District Judge.

text:
    In re PARRINO.
    No. 19840.
    District Court, E. D. New York.
    May 23, 1931.

      Harry L. Thompson, of Brooklyn, N. Y., for petitioner.
    S. C. Duberstein, of New York City, for trustee.
   CAMPBELL, District Judge.

This is a motion for an order granting leave to the Packer Collegiate Institute to bring a foreclosure action in the Supreme Court, Kings County, and to make the trustee a party defendant, and for a further order permitting the petitioner to proceed to a judgment of foreclosure and sale, and a sale of the mortgaged property.

The above-named Guiseppa Panino was adjudicated a bankrupt by order of this court entered in its clerk’s office on the 6th day of January, 1931.

On the 15th day of January, 1931, the said bankrupt filed her schedules in bankruptcy in which she listed the premises in question under the description of 408 Ocean Parkway, subject to two mortgages the first for $27,500 held by the Title Guarantee & Trust Company, and the second which had been reduced to $10,000.

On the 13th day of February, 1931, John H. Gamaidi was duly appointed trustee of the estate of the above-named bankrupt, who has duly qualified and is still acting as such trustee, and is represented by Samuel C. Duberstein, Esq., who by order of this court the trustee was duly authorized to retain.

Under authorization of this court the trustee attempted to sell the premises at public auction subject to all mortgages plus interest and taxes, as set forth in the notice of sale, and received no bids.

The petitioner has commenced an action for the foreclosure of the $20,000 mortgage held by it covering the premises which the bankrupt in her schedules described as 408 Ocean Parkway, in the Borough of Brooklyn, in this district, dated the 3d day of February, 1925, and recorded the 4th day of February, 1925, in the Kings county register’s office in Liber 5964 of Mortgages, p. 326, § 16, block 5374.

Two questions are presented on this motion:

1. Has this court power to grant permission to the petitioner to bring a foreclosure action in the state court ?

2. Is this a proper ease in which to grant such permission?

It has been the custom to grant such permission in the past in what the court considered proper eases, but the decision of the United States Supreme Court, Mr. Justice Roberts writing the opinion, in Isaacs v. Hobbs Tie & T. Co., 282 U. S. 734, 51 S. Ct. 270, 271, 75 L. Ed. 645, decided February 24, 1931, has caused a question to be raised as to the power of this court to grant such permission.

The court has been assisted by the able and exhaustive briefs submitted on this motion,

In Isaacs v. Hobbs Tie & T. Co., supra, no permission had been obtained from the bankruptcy court to institute the foreclosure action in the state court, and the question certified by the Circuit Court of Appeals of the Eighth Circuit to the United States Supreme Court was as follows :

“After the bankruptcy court has acquired jurisdiction of the estate of the bankrupt and the referee therein has entered an order requiring sale, by the trustee, of all of the property of the bankrupt but before the trustee has taken any steps to sell land (part of such estate) entirely located in another judicial district, can a suit to foreclose a valid mortgage tliereon be commenced and an order of sale thereunder be made over tbe objection of tbe trustee, by tbe Court of tbe latter district?
“This question was answered in the negative but the facts in the case at bar are entirely different and in the very opinion last cited, Mr. Justice Roberts, writing for the court stated that after the bankruptcy court has acquired jurisdiction of the estate, other courts are without jurisdiction “save by consent of the bankruptcy court.”

It is to obtain sueh consent that this motion is made, and this court has power to grant such consent and permit such foreclosure action to proceed in the state court, on making the trustee herein a party, and to grant leave to make him a party to sueh action. In the Matter of Schulte United Inc., 49 F.(2d) 264, per curiam opinion, United States Circuit Court of Appeals Second Circuit, April 22, 1931; Isaacs v. Hobbs Tie & T. Co., supra; Straton et al. v. Andy New, Jr., Trustee (April 20, 1931) 51 S. Ct. 465, 75 L. Ed.-.

The second question presented is not one as to power and authority, but as to the exercise of discretion.

The motion for leave to continue the action in the state court to foreclose a mortgage is not a mere formality, hut is addressed to the discretion of the court, and that discretion can only be exercised intelligently on a presentation of the facts, and the court should not be satisfied with less.

In the ease at bar it appears that there are first and second mortgages covering the premises in question, and that the trustee has been unable to sell tbe interest of the bankrupt in such premises subject to all encumbrances, when it was offered at public sale.

The reasons advanced for granting this motion satisfy this court that it is for the interest of all parties! that the motion be granted, to the extent that leave is granted to the Packer Collegiate Institute to bring a foreclosure action in the Supreme Court, Kings County, and to make the trustee a party defendant, and to proceed with such action,, but upon tbe express condition that no judgment of foreclosure and sale shall be applied for or sale’held without making further application to this court.

The motion must, of course, be made on notice to the trustee, and this court in passing on such motion is entitled as a minimum to proof by affidavit on behalf of the moving party of the assessed value of the property,. an itemized statement of the in-cumbrances thereon, what sale if any of the property subject to the lien sought to be foreclosed has been attempted to be made, under authorization of this court, and if any sale by the trustee has been authorized by this court, and the reasons why it is more beneficial to the bankrupt’s estate, as well as the holder of the lien, to foreclose in the state court.

This court should retain its control by requiring further application to this court by the plaintiff in the foreclosure action before applying for judgment of foreclosure and sale or holding sale.

Motion granted to the extent hereinbefore indicated, and upon the express condition that no judgment of foreclosure and sale shall be applied for or sale held without making further application to this court, and in all other respects the motion is denied.


author: McCORMICK, District Judge.

text:
    TRUST NO. 5833, SECURITY-FIRST NAT. BANK OF LOS ANGELES v. WELCH, Collector of Internal Revenue.
    No. 3721-M.
    District Court, S. D. California, Central Division.
    March 21, 1931.

      Dana Latham, Miller, Chevalier, Peeler & Wilson, Melvin D. Wilson, Gibson, Dunn & Crutcher, and Henry F. Prince, all of Los Angeles, Cal., for plaintiff.
    Alva C. Baird, Sp. Atty. for the Bureau of .Internal Revenue, of Washington, D. C., and Emmett E. Doherty, Asst. U. S. Atty., and Samuel W. McNabb, U. S. Atty., both of Los Angeles, Cal., and C. M. Charest, Gen. Counsel, Bureau of Internal Revenue, of Washington, D. C., for defendant.
   McCORMICK, District Judge.

This is an action to compel refund of $4,147.93, representing federal income taxe? computed at the prevailing corporate rate for the calendar year 1928. The amount sued for was paid under protest fey plaintiff, Security First National Bank of Los Angeles, as trustee, to the defendant collector. The sole question for decision is whether "the project or enterprise denominated Trust No. 5833, as it is disclosed by the evidence, is an association within the purview of section 701 (a) (2) of the Revenue Act of 1928, 26 US CA § 2701 (a) (2). The pertinent part of that section reads: “The term ‘corporation” includes associations, joint-stock companies, and insurance companies.” The defendant collector demanded and collected the tax from plaintiffs upon the ground that it was an association as described in the Revenue Act aforesaid. The plaintiffs contend that such ruling was erroneous and illegal, and that the enterprise under consideration is shown by the evidence herein not to be an association within the aforesaid section, but that it is to be considered solely as a fiduciary for income tax purposes. It is admitted that, if the enterprise is properly classified as an “association,” the amount sued for cannot be recovered by plaintiff herein.

The following facts have - been established: In October, 1924, one Cotton, a real estate operator in Los Angeles, Cal., in association with other persons, undertook to acquire by purchase a tract of approximately 90 acres of land, to improve the same by laying out streets and other ways, to install sidewalks, water, electricity, and other utilities therein, and to subdivide the tract into city lots and to sell them to the public at a substantial profit. The scheme involved an outlay of capital both for the purchase price of the acreage and also to pay for the-improvements and subdivision expenses. The land was owned by the Southern California Edison Company, which agreed to sell it to Cotton and his associates for $810,000. The contemplated improvements amounted to approximately $250,000. A written contract of sale of the tract was accordingly entered into by one Farran acting as the agent of the buyers and promoters, Cotton and his associates, and the Southern California Edison Company, the seller. The agreement provided for the payment of $100,000 in cash and the balance of the purchase price within 90' days of the date of the contract. In order to finance the project, a syndicate of some 40 persons was organized. These persons were invited by Cotton and his associates to subscribe and invest various amounts of money in the undertaking ranging from $1,000 to $15,000 each. The purpose of the syndicate as well as the invitation to join therein was to enable the participants to realize a profit upon their investments in the project. The aggregate amount realized from such subscriptions was $250,000. The contract with the Edison Company was assigned to the Security Trust & Savings Bank, predecessor of one of the plaintiffs herein as trustee. Concurrently, the subscribers of the $250',-000 paid their money to said trustee. The Security Trust & Savings Bank, as such, advanced the further sum of $400,000 to the project, and took a first lien upon the assets of the enterprise as its security for payment of such loan with interest. An additional sum of $212,500 was advanced by Cotton and an associate, Bryan, and these two took a second mortgage on the assets of the enterprise as security for the payment of their loan, with interest. The moneys thus obtained in accordance with a written instrument denominated as a declaration of trust, Trust No. 5833, were applied on the purchase price of the 90-aere tract of land.

The declaration of trust under which the project was so launched and carried out is a lengthy document that has been introduced in evidence herein, and that has been carefully considered by the court. I consider it unnecessary to set it forth in extenso. Suffice it to say that it conforms generally to similar instruments common in the realty subdivision activities of Los Angeles, Cal., and is what is popularly known therein as a “real estate subdivision trust.” It was executed by the Security Trust & Savings Bank as trustee, Dean Farran, acting on behalf of Cotton and associates as trustor, and the subscribers or investors of the $250,000 as beneficiaries. It provided a complete, and to" some extent a self-executing, scheme for the payment of the purchase price of the property; the payment of the two mortgage loans; the reimbursement of those who had subscribed and invested money therein; the payment of all expenses attendant upon the improvement and subdivision of the tract of land and for the sale of the entire subdivided parcel of real property. It declared that all beneficial interest in the trust is owned by the investors of the $250,000, and that such interest be divided into units of $100 each, and that each beneficiary shall be deemed to hold one of such units for each $1,000 that he had paid into the trust or should thereafter pay into it. 'It provided that, in all dealing with the trustee and the beneficiaries, the trustee shall be bound by the written direction of any three of the board of five beneficiaries termed the “board of syndicate managers,” which board was chosen by the subscribers of the $250,000, and had power to establish the price at which the real property was to be sold by the trustee; to fix the terms of sale; the manner, method, and time of disposition of the proceeds of such sale; the person to whom all money coming into the hands of' the trustee under the declaration was to he paid after certain payments rigidly fixed by the declaration of trust had been made; the amount of such payments; to fix the restrictions, covenants, conditions, and reservations under and upon which the property or any part of it shall be sold; the form of deeds and contracts to be executed by the trustee in case of any sales; to fix and determine the manner, method, cost, and improvement of the property; and in all other respects to have the power to bind each and every beneficiary in all dealings with the trustee and with other parties in connection with the subdivision and sale of the property. It provided that no lot is to be sold by the trustee for less than the minimum price thereof fixed by a schedule of minimum prices that was annexed to said declaration and made a part thereof, but, as before stated, it gave to the syndicate managers the power of fixing the prices at which the property of the subdivision might be sold. A real estate firm of Los Angeles was irrevocably constituted the agent of the beneficiaries for the sale of the property for a period of two years from the date of the declaration of trust, but, as just adverted to, the sales agency could sell the real property only upon such price, terms, restrictions, and covenants as were fixed by the board of managers by written direction to the trustee and subject to such conditions. The sales agency could direet the trustee to convey the property with the same force and effect as if such direction had been given by the board of managers’ direction. At the expiration of two years, the board of -managers were authorized to designate some other agency, if it so desired, for the sale of the trust property.

The trustee is directed to apply the proceeds of sales to the payment of taxes, costs, charges, and expenses, etc.; to the payment of its own services; to the payment of money loaned the project by the bank, by Cotton, and by others, and to the payment to the subscribers to the amount that they had subscribed to the project and certain additional amounts specifically mentioned and designated in the trust instrument, and, in addition, to pay as directed by the board of managers any further amount of money that would be received by them on account of sales of real property of the trust as directed by the board’ of syndicate managers.

The declaration provided that the beneficiaries agreed that they would subdivide and improve the real property as provided in the trust instrument, and that such work of improvement would be installed and completely and fully paid for within two years of the date of such instrument;

It also provided that the trustee may resign and discharge itself of the trust by a written notice to the board of managers thirty days before such resignation shall take effect, and successor may thereupon be appointed by an instrument in writing executed by the beneficiaries and accepted by the successor trustee. Should the beneficiary fail to make such appointment before the expiration of such thirty-day period, then the trustee may thereupon appoint a temporary successor trustee to fill such vacancy until such successor be appointed by the beneficiaries, and it further provided that any such successor should be vested with all the estates, rights, powers, and duties of its predecessor trustee. It was also stated in the declaration of trust that no sale or transfer of beneficial interests under the trust shall be valid or binding upon the trustee until the instrument making such assignment or transfer shall have been approved by and deposited with the trustee excepting only where such interest may pass or be transferred by a judgment or decree of court, and then only upon proof satisfactory to the trustee of the legality and validity of the procedure in such matters being presented to the trustee. It stated that the legal and equitable title to the real property was vested in the trustee for the purposes of administering the trust, and that no person beneficially interested in the trust has any right, title, interest, or estate in the property covered by the declaration, nor has any person beneficially interested under said declaration of trust any right or power to apply for or secure a dissolution or termination of the trust or partition or division of any of the trust estate; it being further recited that the entire beneficial interest of any and all beneficiaries under the declaration of trust is personal property only consisting of the right to enforce the performance of this trust according to its terms. It was further provided in the declaration that the trust shall continue to and until the sale and disposition in fee of all the property subject to the trust and the disposition of all proceeds thereof in accordance with the terms of said declaration of trust or until the expiration of twenty-five years, whichever event shall happen first. There are other and further provisions in the declaration of trust, but sufficient has already been stated to designate the character of the instrument as well as the classification of the component entities and persons that are described therein. It seems clear that the structure or project created by it is a business enterprise wherein the beneficiaries exercised an ultimate effective control. They had absolute power to remove the board of managers. It is true that the trust in many respects was self-executing, and to some extent was an escrow and security device. It was, however, also a functioning, operating business carried on for profit by the joint action of the trustee, beneficiaries,- and sales agents.

fl, 2] The potent and motivating element of the trust was its control by the board of syndicate managers. Their sole power to fix prices at which the lots could be sold was the energizing and paramount principle of this business scheme. Not only did the declaration of trust vest in the board of syndicate managers such plenary power of control not unlike that conferred upon corporate directors, but they exercised such powers throughout the operations of the trust. The work of improving, subdividing, and selling the tract was carried out under its direction. It held meetings; fixed and paid a per diem to the members of it who attended the meetings; formally approved contracts for improvements; authorized the payment of commissions and escrow charges; approved expense accounts; and altered the usual terms of sales as specified in the declaration of trust. If the test as to the character of the trust under consideration is to be determined by the control of the property by those beneficially interested as investors of the $250,-000, there can be little doubt that such association of persons dominated.

The weight of judicial authority, however, inclines one to the opinion that the real test as to whether business trusts are “associations” within the meaning of applicable internal revenue statutes is whether the shareholder or trustees or both combined carry on business for profit, and, if they do, they constitute a business trust — in legal effect, an ’“association” — with liability for taxes as a corporate entity, and not as a mere fiduciary or escrow. It is immaterial as to whether the shares or interests in the project are evidenced by certificates of stoek or by any other written evidences of ownership. The beneficial interest of the beneficiaries in this trust clearly existed and was assignable and transferable as other personal property. The evidence shows that the owners'of beneficial interest frequently sold the same, and that a legal form was provided for the purposes of sale and transfer, and it appeared that ten units were assigned during the calendar year 1928, and that there were other units assigned by the owners for collateral purposes. It is true that the enterprise sold only one lot during the year 1926, but during that period the sales agency was actively engaged in an effort to dispose of the unsold lots, and that in the period approximately $340,000 was collected on lot sales, interest, etc., and that the total expenses for administration for the same period amounted to approximately $30,000. It is unnecessary to review all of the evidence as to the financial operations of the enterprise. Suffice it to say that it was a very profitable venture, and resulted, not only in the payment in full of all obligations incurred on account of the purchase, improvement, subdivision, and sale of the tract of land, but, in addition, made a handsome profit to all who invested or were interested in the enterprise. It seems to me that to classify this trust as a mere liquidating trust such as those encountered in the administration of estates of deceased persons or in financially embarrassed businesses or projects would be an unreasonable classification. In Hecht v. Malley, 265 U. S. 157, 44 S. Ct. 462, 467, 68 L. Ed. 949, the Supreme Court said: “The word 'association' appears to be used in the Act in its ordinary meaning.” And in Little Four Oil & Gas Co. v. Lewellyn (C. C. A. 3) 35 F.(2d) 149, the court clearly points out, in so far as federal income taxes are concerned, a distinction between two classes of trusts, one whei'e the trustees merely collect dividends or interests or rentals, and distribute them among the beneficiaries, and the other where a trust is organized or declared for business purposes and the trustees carry on an active business for profit. In the former, tax classification as fiduciaries are authorized while in the latter, a tax liability ensues at the usual corporate rate because such trusts are regarded in law for taxation purposes as plain unincorporated joint-stock associations. I am of the opinion that the project under consideration here is analogous to those discussed in the cases of Hecht v. Malley, supra, and Little Four Oil & Gas Co. v. Lewellyn, supra.

All of the characteristics present in the trusts considered in those eases do not exist in the enterprise under consideration, but, in my opinion, the main and determinative qualities and features of the trusts discussed by the courts in each of those eases are present in the ease at bar. It follows from the foregoing that the collector of internal revenue was correct in the assessmeiit of the tax imposed upon plaintiff, and that plaintiff is not entitled to a refund of the same. The special findings of fact and conclusions of law submitted by the plaintiff are disallowed, and the special findings of fact and conclusions of law proposed by the defendant, with certain changes upon said document as filed in the clerk’s office, are ordered prepared herein, and pursuant thereto judgment is ordered for the defendant, with costs of suit. Counsel for defendant will accordingly prepare, serve, and present the same for signing and entry herein.


author: WILLIAM C. COLEMAN, District Judge.

text:
    KAPLAN v. ROBERTSON, Commissioner of Patents.
    No. 1441.
    District Court, D. Maryland.
    May 21, 1931.

      Howson & Howson, of Philadelphia, Pa. (Charles H. Howson and Dexter N. Shaw, both of Philadelphia, Pa., of counsel), for plaintiff.
    T. A. Hostetler and J. F. Mothershead, both of Washington, D. .C., for the Commissioner.
   WILLIAM C. COLEMAN, District Judge.

This is a suit brought under section 4915, Revised Statutes (35 USCA § 63), whereby plaintiff seeks to establish his light to require the Patent Office to issue to him a patent on an alleged invention having to do with high-speed hydraulic turbines, and, more specifically, as defined in plaintiff’s claim, with “a runner wheel for high speed water turbines provided with guide vanes, said wheel comprising a plurality of angularly adjustable blades, and means to adjust said blades while the wheel is running so as to vary not only the outlet angles and passages but also the inlet angles and passages of the wheel, to correspond to variations in the supply of water and in the power required.”

High-speed hydraulic turbines, such as are employed in modem water power developments for the generation of electric power, must be operated at constant speed under varying conditions of load, i. e., power consumption, and therefore the admission of water to the turbine runner or wheel must be regulated accordingly. That is to say, at part load, when less than normal power output is required, the quantity of water admitted to the turbine is reduced. Plaintiff asserts that the regulating devices in use prior to his alleged invention had the disadvantage of greatly reducing the efficiency of the turbine when the latter was operating at other than one particular load, and he claims to have overcome this defect and to have accomplished, turbine operation with uniform efficiency at all loads. The two features with which Kaplan’s device deals are, first, so-called guide vanes, the function of which is to guide the water to the runner or the turbine wheel; and, second, the runner or the turbine wheel itself.

-The Commissioner of Patents refused plaintiff’s application for a patent, whereupon plaintiff appealed to the Court of Appeals of the District of Columbia, and there the Commissioner was affirmed. 58 App. D. C. 193, 26 F.(2d) 565. The Acts of March 2, 1927 (section 11) and March 2,1929 (section 2 (b), amending Rev. St. 4915 (35 USCA 63), and providing that the remedy by bill in equity would only exist in tbe event that the applicant had not appealed to the Court of Appeals of the District of Columbia, for which, by the later of the two amendments the Court of Customs and Patent Appeals was substituted, did not become effective until after plaintiff’s appeal in the present case from the Commissioner to the Court of Appeals of the District of Columbia had been taken. Therefore this proceeding is governed by section 4915 as it stood prior to its amendment. The Commissioner of Patents has accepted service, and no question of jurisdiction arises in the present case.

The present proceeding is not in the nature of an appeal, but rather a trial de novo, with all the customary power of an equity court to hear the evidence fully and to make its own findings. Butterworth v. U. S., 112 U. S. 50, 5 S. Ct. 25, 28 L. Ed. 656; Model Bottling Machinery Co. v. Anheuser-Busch Brewing Association (C. C. A.) 190 F. 573; Clements v. Kirby (C. C. A.) 274 F. 575; Miehle Printing Press & Mfg. Co. v. Miller Saw Trimmer Co. (C. C. A.) 6 F.(2d) 417.

In addition to the claim specifically rejected by the Patent Office and above quoted, the bill of complaint submits two additional claims germane to the subject-matter, and asks for a decree directing the Commissioner to issue a patent on these claims as well. The Commissioner sets up, by way of defense, (1) prior patents, and especially patent to Lud-low, No. 67,994, issued August 20,1867; and (2) inadmissibility in the present suit of the additional claims on the ground (a) that they had not been considered by the Patent Office oh the Court of Appeals, and (b) that, even if they should be here considered, they are substantially the same as the single claim properly before the court, except that movable guide vanes are described, and that, . since the drawings show no guide vanes, the claim of a new specific element not heretofore disclosed is not permitted.

Hydraulic turbines described by a variety of terms, such as runners, water turbines, reaction wheels, rotary wheels, etc., of both high and low speed, are old in the art. They have been in use for upwards of one hundred years for obtaining power by utilizing energy stored in a head of water, and in their earliest forms represented improvements upon wheels used in gristmills. The water is caused to flow through the turbine or runner in passing from a higher to a lower level, and, since the direction of the flow of water is changed as it passes through the runner, the runner revolves. It is mounted on a shaft which revolves as the runner revolves, and the shaft drives the machinery or electrical generator with which it is directly connected.

With the gradual development of the art, it was found desirable to guide the water to the runner with a whirling peripheral motion, and thus the wheels were placed within a circle of guide vanes or gates. At the time Kaplan entered the field, there were in common use, both in this country and abroad, the Fink guide or turn vanes, otherwise known as wicket gate casing. This device consisted of a circular series of movable vanes or gates surrounding the runner, by means of which the water was guided to the runner in a path approximately tangential to the outer periphery of the runner, thereby giving to the water a swirl as it approached the runner blade. By regulating, that is, by opening and closing these gates or blades, they performed the additional function of regulating the amount of water admitted to the runner. The wheel or turbine that had been in use for half a century or more prior to Kaplan’s entry into the art was the so-called Francis turbine, which had fixed blades, and with which the Fink guide vanes were used. These vanes appear to have been the only known means at the time of Kaplan’s application for varying the angle of admission of water to the runner. Kap-lan’s alleged invention did not involve any change in the structure of these guide vanes, nor the adoption of any substituted means for regulating the admission of water to the runner.. His object was to remedy a defect in turbine operation as then known to the art. In short, he believed that it was the employment of the movable guide vanes, of which the Fink model were typical, as the device for regulating the admission of water to the fixed runner blades, that led to the loss of efficiency, especially in high-speed turbines, and this he sought to overcome, and, as the evidence shows, did overcome, by making the runner blades adjustable, and by adapting their inlet and outlet angles and passages to any desired admission of water — ■ accomplished by turning the guide vanes— thereby preventing axial eddies and obtaining higher efficiency.

It appears that the use of the Fink turn vanes or movable guide vanes had, especially in connection with high-speed runners, the disadvantage that the efficiency of the turbine rapidly decreased when the quantity of water passing through it was reduced; in other words, the turbines failed to maintain desired efficiency at partial loads. Here it is proper to allude to the fact that modem turbines are required to run at varying loads, since the current output of the electrical generators varies throughout any given day. The generators themselves must be run at constant peripheral speed in order to maintain a constant electrical pressure or voltage. In operating the turbine at constant speed, or at loads less than normal, the amount of water passing through the turbine must be reduced, which Kaplan accomplishes by turning the movable guide vanes to such an angle that the amount of water admitted bears proper relation to the load on the generator. Such adjustment is accomplished automatically by means of a governor. Kaplan found that the decrease in efficiency at partial loads was caused by the change of angle and velocity of the entering water, and that a runner which was capable of maintaining maximum efficiency at normal loads would not maintain the desired efficiency when the angle and velocity of the water were changed to correspond to other loads, since the water would have an incorrect path of travel relative to the blade. Therefore, in his combina^ tion, for each position of the movable guides determined by the load, there is a corresponding predetermined angular position for the runner blades. He claims that the shape of the runner blades is important, in that, in order to maintain high efficiency, there must not only be a co-ordinated relationship between the angle of the water admission and the angle of the'runner blades, but also both the inlet and outlet angles and passages must be correctly maintained for each co-ordinated position. Summarized, the advantages claimed for Kaplan’s device are three: First, sustained efficiency over wide ranges of load, growing out of the avoidance of axial eddies; second, stability of operation at all loads; and, third, less “pitting” of the blades, and therefore greater permanency.

We will address ourselves first to the Commissioner’s contention (a) that the two additional claims, because submitted for the first time in the bill .of complaint, should not be considered; and (b) that, even if entertained, they are not supported by the drawings, and that therefore the application fails to meet the requirements of section 4888 of the Revised Statutes (35 USCA § 33).

We are not impressed with the merit of either of these arguments. This court, in a proceeding of this kind, may consider claims not included in the application filed in the Patent Office, provided they are germane to the subject-matter. Schiller v. Robertson (D. C.) 28 F.(2d) 301, and eases therein cited. The differences between the original and the new claims consist of the following: Where the original claim refers to “high-speed water turbines provided with guide vanes,” the first of the additional claims refers to “movable guide vanes adopted to vary the admission of water to said turbine,” and also, instead of referring merely in general language to variations in the supply of water, refers to such variations “passed through said guide vanes.” The second additional claim is identical with the first additional one, except that it omits reference to adjustment of the runner blades “while the wheel is running.” None of these changes is a vital alteration of the original claim. The specifications refer to Fink vanes which, as already pointed out, are old'in the art and are movable. Also means for adjustment of runner blades while the wheel is running is not per se new, nor is plaintiff claiming it as part of his invention, because, as we shall later see, it is shown in the Ludlow patent. Lastly, the description of the invention as contained in the claims; interpreted in the light of the specifications, is to he neither restricted nor extended by the drawings, and, a fortiori, it is not absolutely necessary that the drawings accompanying the application shall disclose a particular device that is employed, if it forms no part of the invention, is well known to the art, and if, as here, it is embraced in the specifications which provide for adjustment of the runner blades automatically by any suitable means. Rev. St. §§ 4888-4891 (35 USCA §§ 33, 34); Harvey Hubbell, Inc., v. General Electric Co. (C. C. A.) 267 F. 564. The evidence shows that in plaintiff’s latest model turbines the movements of the gate control system and of the runner control system are synchronized by operating the gates and the runner by servo-motors, driven by oil.

We now come to a consideration of whether Kaplan’s device is anticipated by the prior art, and especially by the patent to Ludlow, upon which reference the Commissioner primarily relies.

Ludlow may be described as a water wheel in which a runner is placed in a flume and is surrounded by a number of fixed vanes or guides. The wheel comprises blades, called, in the art, buckets, slightly curved in serpentine form, mounted on pivots or rods, upon which they may be turned while the wheel is running, thereby controlling the amount of water utilized by the wheel; that is, the angles at which each bucket is set in relation to the other determines the capacity of the water allowed to issue between the buckets. The only other means provided for varying the supply of water is by opening a valve in the ventilating pipe to lessen the suction force in the draft tube.

We must conclude that Kaplan is not anticipated by Ludlow. The gist of the former resides in the co-ordination of the inlet and outlet angles and passages of the runner blades with the variations in the angle and velocity of the water admitted to the runner by the movable guide vanes. In other words, Kaplan does not in any sense control the flow by the runner blades, but relies upon the movable guide vanes; whereas the sole purpose on the part of Ludlow in adjusting his runner buckets is to control the amount of water passed through the wheel. Furthermore, we are satisfied, from the evidence that, because of their particular shape, the Ludlow buckets are not adapted for use with movable guide vanes. We cannot see, therefore, that Ludlow is like Kaplan in .either structure or operation, although, of course, the fundamental object sought to be attained by both is the same; i. e., regulation of the capacity of the wheel to suit the amount of power it is required to give forth, thereby enabling the wheel- to work at less power than its maximum, with the use of a proportionate amount of water only.

The other references are mueh less similar to Kaplan’s device, and therefore call for little discussion, because under no reasonable interpretation can they be said to anticipate Kaplan. Newlin patent, No. 87,-585, March 9, 1869, has'no guide vanes whatsoever, and therefore it does not embrace the basic combination. None of the following four references, i. e.: Angel patent, No. 98,330, December 28, 1869, and reissue No. 6,178, December 22, 1874; Sylvester patent, No. 321,660, July 7, 1885; Felthausen patent, No. 1,032,887, July 16, 1912 — discloses a runner having adjustable blades, but merely discloses various forms of construction of movable guide vanes in combination with fixed bladed runners.

The Commissioner further claims that Kaplan’s device is fully disclosed in Ms own patent No. 1,467,672, issued to him September 11, 1923. But with this we cannot agree. A reading of the claims under this patent clearly indicates that it relates and is restricted to specific features, whereas the present application embraces broad claims not so limited. For example, the broadest claim (No. 1) in No. 1,467,672 is limited to a runner adapted to axial admission, of the water, and to a particular type of mounting for the runner blades, which is not true with respect to the claim here in issue. But, aside from these considerations, we must look to the date of the respective applications in order to determine Kaplan’s full rights. The application here in issue was filed July 30, 1914; the one' under patent No. 1,467,672 not until September 1, 1921, seven years later. Due to the intervention of the World War, Kaplan being an Austrian, the case was abandoned in 1916, but revived after the war, and on January 19,1922, the Commissioner appears to have recognized Kaplan’s right to reconsideration, in which the Commissioner was correct under the Act of March 3 1921 (the Nolan Act [35 USCA §§ 80-87]), pursuant to which Kaplan is entitled to the benefit of the date when Ms application was first made. Therefore the application now in issue is to be treated as still prior in time to that under patent No. 1,467,672. When a patent has issued, no subsequent claim by the patentee can be valid for the same invention; but, if the claims be different, and the applications are pending concurrently, it makes no difference in which of the two applications the broader claims appear, and the generic claims may issue last, unless they were for the first time introduced into the application after the first patent issued, which is not the situation in suit. Vapor Car Heating Co. v. Gold Car Heating & Lighting Co. (D. C.) 296 F. 188; Id. (C. C. A.) 16 F.(2d) 194; Id., 268 U. S. 705, 45 S. Ct. 639, 69 L. Ed. 1167.

It having been determined that Kaplan’s device is not anticipated by the prior art, there remains for decision the question whether it is an invention. The test of patentability for a mechanical patent is novelty plus utility. The law regards a change as a novelty, and the acceptance and utility of the change as further evidence or demonstration of novelty. First, then, as to whether Kaplan’s device is novel. It has long been settled that all the elements of a mechanical combination may be old and yet it may be patentable. Hubbell v. United States, 179 U. S. 77, 21 S. Ct. 24, 45 L. Ed. 95; Leeds & Catlin Co. v. Victor Talking Machine Co., 213 U. S. 301, 29 S. Ct. 495, 53 L. Ed. 805; Diamond Rubber Co. v. Consolidated Rubber Tire Co., 220 U. S. 428, 31 S. Ct. 444, 55 L. Ed. 527; Imperial Bottle Cap & Machine Co. v. Crown Cork & Seal Co. (C. C. A.) 139 F. 312; Ingersoll v. Delaware & Hudson Co. (C. C. A.) 37 F.(2d) 465; Black & Decker Mfg. Co. v. Baltimore Truck Tire Service Corp. (C. C. A.) 40 F.(2d) 910.

As was said in the Huhbell Case, supra, which was concerned with an improvement in metallic cartridges (page 86 of 179 U. S., 21 S. Ct. 24, 28): “Nor can we accept the contention that these two combinations are identical because they are intended to obtain the same result. What we have to consider is not whether the end sought to be effected is the same, but whether the devices or mechanical means by which the desired result is secured are the same.” Again, in Diamond Rubber Company Case, supra, the Supreme Court, in dealing with a patent for an improvement in rubber tires, said (page 435 of 220 U. S., 31 S. Ct. 444, 447): “Knowledge after the event is always easy, and problems once solved present no difficulties, indeed, may be represented as never having had any, and expert witnesses may be brought forward to show that the new thing which seemed to have eluded the search of the world was always ready at hand and easy to be seen by a merely skillful attention. But the law has other tests of the invention than subtle conjectures of what might have been seen and yet was not.. It regards a change as evidence of novelty, the acceptance and utility of change as a further evidence, even as demonstration.”

The guiding principle is again exceedingly well stated in the Imperial Bottle Cap & Machine) Company Case, supra, which had to do with a bottle stopper patent. There the Circuit Court of Appeals for this circuit said (page 320 of 139 F.): “The finding in the old devices, one portion here, one in another, and so on, should not defeat a patent for the combination, which is only truly anticipated by a prior device having identically the same elements, or their mechanical equivalents, co-operating to produce the same results. Even if any of them nearly approached the complete invention, if they were not operative or available there would be the presumption that they were not identical with one of admitted superiority, the merits and utility of which are proved by general use.' Granting that the elements were known, something before unknown had to become known. A new operative means had to be devised, by which what was known could be made available, and a creative or inventive faculty had to be invoked and exercised to discover the availability of a mode of application by which forces already known could be so united as to effect results desired, and theretofore sought in vain. The unknown and untried factors had to be united with the known factors, and the combination of these elements into a practical, operative means, and its embodiment into a concrete thing, constitute invention.”

Similarly, there can be no doubt about the utility of Kaplan’s device. The evidence discloses that it was first introduced in Europe about 1923, patents were obtained in numerous countries, and it was so successful that in some five year’s it had completely superseded the Francis turbine with fixed blades in the field to which it was applicable. In 1928, Kaplan’s device was first introduced into the United States. In approximately two years, the American licensee had sold twenty-two of 'these adjustable blade turbines, with a total horse power of 166,799, for which was paid over-$1,000,000, and the total power plant equipment in which the units were installed involved an expenditure of more than $35,000,000. The evidence is further uncontradicted to the effect that, while the Kaplan device costs more, per unit, than does the fixed blade turbine, the increase is offset more than tenfold in the course of a year by economies that are effected. Six of these units are now being installed at Safe Harbor, Pa., at a cost of more than $1,000,-000, the entire water power project of which they form a part representing a total expenditure of about $3,000,000. Therefore, were there any doubt as to the patentability of the device here in issue, its demonstrated commercial utility and success would require that such doubt be resolved in favor of Kaplan. Minerals Separation, Ltd., v. Hyde, 242 U. S. 261, 37 S. Ct. 82, 61 L. Ed. 286; Black & Decker Mfg. Co. v. Baltimore Truck Tire Service Corp., supra.

In conformity with this opinion, a decree will be entered in favor of the plaintiff for all of the claims embraced in the bill of complaint, directing the C'omnfcsioner of Patents to grant a patent thereon.


text:
    THE SEMARAMIS. THE ALGIE. THE LIBERTY. THE PATRICIA. THE ALAMAC.
    Nos. C-2617, C-2641, C-2570, C-2577, C-2525.
    District Court, E. D. New York.
    May 25, 1931.
    See, also, 50 F.(2d) 624.
    Howard W. Ameli, U. S. Atty., and Alfred C. McKenzie, Asst. U. S. Atty., both of Brooklyn, N. Y.
    Louis Halle, of New York City, for claimant.
   CAMPBELL, District Judge.

Motions were made before this court in each of the five above-entitled actions for the same relief, viz., motion for an order striking this ease from the common-law calendar.

The only question presented is one of calendar practice, and the only purpose for the making of such motions, so far as I can see, ■ is to delay the trial of those eases.

The moving parties call attention to rule 8 of the General Buies of this court, which reads as follows:

“8. Calendars.
♦ “There shall be kept by the Clerk three permanent calendars of issues awaiting trial, namely, the Common Law calendar, the Equity calendar, and the Admiralty calendar.
“Causes other than in Equity shall be placed upon the calendars to which they belong by the filing of a note of issue; each note of issue shall contain the docket number and full title of the cause, the names and addresses of the attorneys of record, the date of issue joined, the nature of the issue, and a request to add it to one of the calendars above named.
“Upon the Common Law calendar shall be placed all causes raising issues of fact of a civil nature triable by Court and Jury.
“Upon the Equity calendar shall be placed all issues of fact of a civil nature triable by the Court without a Jury — except causes in Equity brought on for hearing upon exceptions to a Master’s report and issues in involuntary proceedings in bankruptcy wherein no jury trial is demanded.
“Upon the Admiralty calendar shall be placed all issues of fact arising in causes of admiralty and maritime jurisdiction, excepting causes brought on for hearing upon exceptions to a Commissioner’s report.”

The cases in question are not.in reality admiralty causes, but are causes of civil forfeiture.

They are not indexed in the clerk’s dockets of admiralty causes, but in the dockets designated “Civil”.

They have for about eight years been doeketed in the civil dockets and placed on the common-law calendar.

This was done not only for the convenience of the court, but to make it possible to have speedy trials in these eases, which was impossible on what was an overcrowded, and will always be an overcrowded, calendar, the admiralty calendar of this court.

The established practice has been uniformly followed of placing these eases on the common-law calendar, and, when a case of this character cognizable in admiralty is reached, for the court to resolve itself into an admiralty court and proceed with the trial as a court of admiralty.

Established practice has the same force and effect as a rule of the court. United States v. Stevenson, Fed. Cas. No. 16,395; Fullerton v. United States Bank, 26 U. S. (1 Pet.) 604, 612, 7 L. Ed. 280; Duncan v. United States, 32 U. S. (7 Pet.) 435, 451, 8 L. Ed. 739.

The motions are severally denied.