his firm of Dresser & Co. to raise money by the sale through a broker of accommodation drafts to be drawn by the corporation and accepted by the firm. The scheme contemplated that the proceeds of the drafts should be paid by the broker to the corporation, go into its bank account, and be used by it to the extent required by its financial necessities, and the balance be sent to the firm. To facilitate the sale of the drafts by inducing purchasers to buy, a written statement, false in material facts respecting the financial condition of the firm, was made by Dresser, and placed in the hands of the broker; and in making sales of the paper the broker communicated the substance of the contents of the statement to the various purchasers to whom he sold the drafts. The corporation sent the firm a large part of the proceeds of the drafts sold by the broker to purchasers, who bought them upon the faith of the contents of the

statement.

The only part of the contention for the appellant which deserves serious consideration is the argument that to bring the case within the meaning of clause 3 it is necessary to prove that the false statement was delivered by the bankrupt himself to the creditor from whom the property was obtained, or at least that it was meant to be delivered to the particular person of whom the property was obtained, and that in any case the statement itself must have been shown to the person from whom the property was obtained.

The provisions of the section are not to receive the strict construction given to criminal statutes, but should receive a reasonable one to effectuate the intention of Congress, so far as that can be ascertained by the language employed. We think that intention was to deprive any bankrupt of the benefit of a discharge who has obtained property from any person by means of a written statement false in material matters; and within the fair meaning of the clause the statement is made to such person, if it was given to an agent for the purpose of using it in obtaining property for the bankrupt, and if its contents were communicated by the agent to such person. The words "such person" refer to the previous words "any person," and the statement is "made to such person" whenever it is made by the bankrupt himself or his duly authorized agent; and it is none the less "made," although the statement itself is not delivered, when its contents are correctly communicated by the agent. The purpose of Congress in prescribing a written statement to be essential was to protect the bankrupt from the danger of having his statement perverted or distorted by parol evidence, and that purpose is equally well accomplished whether the statement itself is used in obtaining the property, or whether the contents are communicated. The language of the clause does not necessarily import that the statement shall have been made for the purpose of inducing any particular person to rely upon it.

The phraseology of the clause in its entirety is consistent with the interpretation which we have thus indicated. We are asked to read it as though instead of the word "made" Congress had used the

word "delivered." The use of that word would have required a very different construction to be placed upon the clause, and if Congress had intended such a construction it is to be assumed that the word would have been used.

The facts proved in support of the second objection were these: During his examination at a meeting of creditors the bankrupt refused to answer certain material questions relating to the disposition of certain of his property, assigning as a reason that the answer might tend to incriminate himself. The referee formally approved the questions, but refused to order the bankrupt to answer. The facts bring the case directly within the language and spirit of clause 6. The contention for the appellant is that to enforce clause 6 under the circumstances of this case would deprive the bankrupt of his constitutional right of immunity from self-incrimination. The proceeding for a discharge is not a criminal proceeding, and the constitutional protection extends to the protection of the witness in criminal proceedings only; and of course it may always be waived by the witness himself. We entertain no doubt that it is within the power of Congress to grant or to refuse a discharge to a bankrupt upon such conditions as it may deem proper. Such a privilege is not a natural right, or a right of property, but is a matter of favor, to be accepted upon such terms as Congress sees fit to impose.

We do not deem it necessary to elaborate the reasons for the conclusions thus reached as to both of the objections, because they are satisfactorily expressed in the very full and excellent opinion of Referee Dexter, to whom, as special commissioner, the issues were referred to report the facts, with his opinion thereon.

The judgment is affirmed, with costs.

PORTER et al. v. TONOPAH NORTH STAR TUNNEL & DEVELOPMENT

CO.

(Circuit Court of Appeals, Ninth Circuit. June 27, 1906.)

•No. 1,241.

MINES AND MINING-CONFLICTING MINING CLAIMS-EVIDENCE CONSIDERED. The decision of a Circuit Court affirmed, holding that the evidence was insufficient to sustain the burden of proof resting on adverse claimants to show that any part of mining ground sought to be patented by defendant was within the boundaries of a claim as previously located by plaintiffs and their grantors.

Appeal from the Circuit Court of the United States for the District of Nevada.

For opinion of court below, see 133 Fed. 756.

This was a suit in equity, commenced by the appellants against the appellee under the provisions of sections 2325 and 2326, Rev. St. U. S. [Comp. St. 1901, pp. 1429, 1430], to determine the question of the right of possession of certain mining ground situated in Tono

146 F.-25

pah, Nye county, Nev. The court rendered a decree in favor of the defendant. The complainants appeal.

Garoutte & Goodwin and Welles Whitmore, for appellants.

K. M. Jackson, Key Pitman, and Campbell, Metson & Campbell, for appellee.

Before GILBERT, ROSS, and MORROW, Circuit Judges.

MORROW, Circuit Judge. The defendant, the Tonopah North Star Tunnel & Development Company, filed its application for a patent for the Ivanpah mining claim in the United States Land Office at Carson City, Nev., on the 19th day of September, 1903. Within 60 days the complainants filed in said land office their adverse claim to the defendant's application, and within thirty days thereafter commenced suit in the United States Circuit Court for the District of Nevada to determine the rights of the respective parties to the ground in controversy. The case was heard upon oral testimony, documentary evidence, location notices, plats, and diagrams, and a decree entered in favor of the defendant. The claim of the complainants is based upon a location of a mining claim known as the "Dave Lewis Hope," made August 26, 1901, and an amended certificate of location of said claim under the name of the "Mizpah Intersection," made May 17, 1902. The claim of the defendant is based upon a location of a mining claim known as the "Ivanpah," made October 10, 1901. Both claims are situated on the westerly side of Mt. Oddie, in the Tonopah mining district. It is claimed by the complainants that defendant's location overlaps a considerable part of the complainants' location. The defendant, on the other hand, claims that, as the complainants' location was originally made, there is no conflict in the two locations.

The case was heard by Judge Hawley in the Circuit Court, and in his opinion the questions in controversy were fully discussed. Porter v. Tonopah North Star Tunnel & Development Co., 133 Fed. 756. In this court we have had the assistance of oral arguments and elaborate briefs in considering the questions at issue, but we have been unable to find that the court was in error, either in the facts found or in its construction of the law.

For the reasons stated by Judge Hawley in his opinion, the decree of the Circuit Court is therefore affirmed.

PHOENIX CAP CO. v. REISS et al.

(Circuit Court, S. D. New York.

PATENTS-INFRINGEMENT

December 1, 1905.)

HERMETICALLY SEALED JARS.

The Weissenthanner patent, No. 483,033, for a hermetically sealed jar, if conceded patentable novelty, is for a combination of elements all of which were old, and its claims must be strictly construed, and limited to the precise combination shown. As so construed held not infringed. In Equity. Suit for infringement of letters patent No. 483,033 for a hermetically sealed jar, granted to Achille Weissenthanner. final hearing.

Kenyon & Kenyon, for complainant.

Wm. F. Hall and Wm. Wallace White, for defendants.

On

WALLACE, Circuit Judge. The patent in suit is for an improvement for hermetically sealed jars. Broadly considered, the elements of the claims are:

(1) A jar having a projecting rim.

(2) An outer covering, having an annular recess in its rim. (3) An interposed cover, having a rim adapted to fit the rim of the jar.

(4) A gasket or elastic ring in the annular recess of the outer And

cover.

(5) A collar to embrace the rims of the cover and the jar, and hold them locked together.

All of these elements were old separately. Most of them were old in combination, although in the patents for sealed jars of the prior art the gasket was generally held between the rim of the cover and the rim of the jar, and not between the rim of the cover and the rim of an interposed cover. But, as appears in the prior English patent to Gedge, No. 9146, all of the elements were old in combination and old in mode of operation. In that patent, as well as in the patent in suit, the gasket is inserted between the upper and lower covers, and assists to hold the latter by an elastic pressure firmly in place upon the rim of the jar. The departure of the patent in suit consists in the new form of the parts. Whereas in the Gedge patent the rim of the jar is horizontal at the inner portion and downwardly inclined at the outer portion, in the patent in suit it is downwardly inclined at the inner portion and horizontal at the outer portion. In both patents the rim of the jar and the rim of the upper cover is of a form to fit the peculiar form of the gasket which is to be inserted between them, and the lower cover is also of a form to make room for the gasket and fit the rim of the jar. In both the purpose of the gasket is to afford a packing between the upper cover and the lower cover. In the Gedge patent the rim of the lower cover does not extend over the whole of rim of the jar, and beyond the point to which it extends the gasket is in direct contact with the rim of the jar. This arrangement would seem to be preferable, as it affords a tighter sealing to the jar than would be practicable if the lower cover extended completely across the rim of the jar. Indeed, the expert for the complainant admits.

that with a rigid material like tin plate it would be practically impossible to cover the rim of a glass or earthenware jar, so as to prevent the access of air to the contents; and he therefore argues that what is called in the patent "a tin diaphragm" and a "cap or tin cover" should be read as meaning a diaphragm of tin foil, such as was shown in the prior patent to Gillingham. The drawings of the patent in suit, as well as the language of the description, show that such a reading is not the correct one, because it is obvious that with the use of such a tin foil diaphragm it would be unnecessary to make its rim of any particular form, and the desired form could be given to it perfectly by merely pressing the contracting parts together in sealing the jar.

In the patent in suit the gasket is triangular in cross-section, and the rim of the upper cover has a V-shaped annular recess, while in the Gedge patent the gasket is approximately rectangular and grooved at the upper surface, and the rim of the upper cover has corresponding annular grooves. No evidence was offered by the complainant that the patented invention had ever been put to any commercial use. It is difficult to see how it could have been any advance upon the prior art. But it is unnecessary to pass upon the question of the patentable novelty of the claims, because it is manifest that upon the strict construction which must be given to them they have not been infringed by the defendants.

The rim of the defendants' jar is not the rim of the patent, but is substantially the rim of the prior Mason patent. The rim of the upper cover is like that shown in the Mason patent, and does not have any V-shaped annular recess to receive the gasket. The defendants' jar does not have the gasket of the patent in suit, but the ordinary flat packing ring of the prior art, instead of the V-shaped gasket of the patent. The defendants' jar does not have the interposed cover of the patent, its diaphragm being of tin foil, and in this respect not differing substantially from the interposed cover in the prior patents to Crary and to Gillingham.

The bill is dismissed, with costs.

WEST DISINFECTING CO. et al. v. FRANK et al.

(Circuit Court, S. D. New York. June 19, 1906.)

1. PATENTS-DESIGNS.

Design patents are granted for appearance, and not with reference to mechanical usefulness.

2. SAME-INFRINGEMENT-CASE FOR DISINFECTANT.

The Taussig design patent, No. 33,633, for a design for a casing for disinfecting apparatus is valid, the peculiar contour of the patent rendering the device attractive to users. Also held infringed.

In Equity. On final hearing.

Harold S. Mackaye and William H. Kenyon, for complainants. George L. Wheelock and Louis C. Raegener, for defendants. HAZEL, District Judge. The bill herein charges infringement of a design patent, No. 33,633, of December 4, 1900, for a casing for disin