lowing the glass to flow therethrough in either direction, a discharge orifice leading from the displacement chamber below its top, and a means of varying the volume of glass in the displacement chamber above the discharge orifice without cutting off the connection between the furnace and displacement chamber." At the date of the Hitchcock patent, there were other mechanical feeders, so that his method was simply another method for feeding molten glass from a furnace into molds through some mechanical device. The Hitchcock patents have now expired, and so far as we can see have left no impress on the art. No commercial Hitchcock feeder was ever built or used. Notwithstanding the fact that Hitchcock was an engineer of experience and ability, the plaintiff has developed and used a paddle type of mechanism for feeding glass from the furnace into molds. It further appears by the testimony of their witness, Peiler, that the plaintiff company experimented with the plunger feeder from 1912 on, and that in 1915 it commercially introduced the paddle feeder. It does not appear that it ever attempted to use the Hitchcock feeder commercially. Possibly the most that can be said for this feeder is said by the witness Gray, after the experiment at Corning, wherein the witness says that the patents indicate possibilities for commercial use. It would seem, therefore, that there can be no escape from the conclusion that, if the Hitchcock patents will operate, they are mere paper patents, and not entitled to any substantial range of equivalents. However, there is a more serious question with reference to the Hitchcock structure. Will it operate at all? We have what was described in the testimony as the WhitallTatum experiment in 1918, where, in entire ignorance of the Hitchcock patents, an embodiment of the Hitchcock feeder idea was tried and found to be a failure. Then we have the experiment at Corning during the trial of this case, where it was found that the result of the exertion of the pressure upon the glass in the discharge chamber was the drawing of molten glass up into the air mechanism at the top of the discharge chamber, and also the drawing of glass from the furnace itself up into the air mechanism, thereby clogging the machinery. But, even if the Hitchcock structure will operate, we find, on turning to the defendant's structure, the Miller feeder, that it operates upon an entirely different theory from the Hitchcock structure. It is true that it forms "gobs" of molten glass of predetermined size by pressure, but this pressure is exerted, not by the application of a vacuum at the top of the molten glass in the discharge chamber, as claimed in the Hitchcock structure, but by a plunger inserted directly into the discharge orifice of the glass-discharging mechanism, thereby completely cutting off the flow of discharging glass. The Miller feeder discloses a shallow boot or extension, extending from the glass-melting furnace, in the bottom of which there is provided a discharge orifice into which a mechanically timed plunger moves, periodically shutting off the flow of glass and forming "gobs." In both cases, shears sever the "gob" of glass that has been formed; but one fundamental difference is that the Miller structure so operates as to cut communication completely off between the orifice and the main supply of glass during the operation of forming the "gob," whereas, in the Hitchcock structure, the orifice is always in open communication with the main supply of glass. Another fundamental difference between the operations of the two structures is that in the Hitchcock structure the shears operate before any attempt is made to check or retract the glass passing downwardly through the discharge orifice. In the Miller structure, the plunger starts upward before the shears operate, with the result that the extruded glass, below and immediately adjacent to the orifice, is dragged upward by the plunger before the shears cut. In the Miller feeder, the plunger is retracting the glass at the orifice at the time of the cut; and this operation continues after the cut is completed, so that the most that can be said of the two structures in question is that they both produce "gobs" of glass dropped into a mold. Their method of arriving at this result is totally different. In the Hitchcock device, rhythmic formation of suspended "gobs" of molten glass is accomplished by letting the molten glass flow through the discharge tank through a continuously open orifice, the "gobs" being severed from the mass of glass by properly timed mechanism, and then the withdrawal or retracting of glass passing through the orifice by the operation of a vacuum applied at the top of the discharge chamber after the mechanism or shears cut the glass. In the Miller device, the formation of "gobs" is brought about by the closing of the orifice through which the glass flows from the discharge tank, by inserting a plunger into the orifice. In the 2 F.(2d) 111 Hitchcock structure, the shears operate before any attempt is made to check the glass passing downward; in the Miller structure, the plunger starts upward before the shears operate. The method adopted by the Miller structure has produced a commercially operating machine; the Hitchcock device has not. The use of the plunger in the discharge orifice in bringing about the formation of "gobs" has undoubtedly obviated the difficulties which prevented Hitchcock and the Whitall-Tatum people from making a commercial success of the Hitchcock method. The use of the plunger to regulate the flow of glass through a discharge orifice was disclosed to the glass art by the Brookfield patent, filed on November 15, 1901, and prior to the date of filing of the plaintiff's Hitchcock patent. To our mind, the Brookfield patents disclose all the elements necessary for feeding separate "gob" or measured charges of glass to molds, and also disclose that the "gobs" are depending below the discharge orifice at the time of sev erance from the stream of flowing glass. So that, if it should in any manner of means be held that the two methods are similar, and we believe they are not, it would have to be held that the Hitchcock patents in suit are invalid by reason of anticipation. However, as we view the case, this is nothing more than the same results sought or attained by different methods, and in view of the holdings of the Supreme Court, that, if the patent for a machine be a pioneer, the alleged infringer must have done something more than to reach the same result (Westinghouse v. Boyden Power-Brake Co., 170 U. S. 537, 18 S. Ct. 707, 42 L. Ed. 1136), we are constrained to hold that the Miller feeder does not infringe the Hitchcock patents, even if operative. We therefore conclude that the plaintiff is not entitled to the relief sought in this case, and that its bill of complaint should be dismissed, with costs. REPUBLIC CASUALTY CO. et al. v. SCAN- Courts 303 (2)-Suit for preference and for In view of fact that state has no property interest in Washington bank depositors' guar anty fund created by Laws Wash. 1917, p. 308, ble to depositors or creditors of bank, suit to amended by Laws 1921, p. 283, and is not liahave claim given preference and included in guaranty fund was not suit against state without its consent, in violation of Eleventh Amendment, and federal court had jurisdiction. In Equity. Suit by the Republic Casualty Company and another against the Scandinavian-American Bank and another. On defendants' motion to dismiss the complaint. Motion denied. See, also, 2 F. (2d) 113. The plaintiffs allege foreign corporate en tity, and corporate entity and insolvency of T. Duke is the duly appointed, qualified, suthe defendant bank, and that defendant John pervisor of banking, under the banking laws of the state of Washington, and as such has taken charge of the assets of the defendant insolvent bank, and said insolvent bank is, through the said supervisor of banking, in the process of liquidation; that the defendants are all citizens of the state of Washington; that prior to insolvency, pursuant to designation of the defendant bank as a depository for funds in bankrupt estates, of the court, executed bonds in the sum of the plaintiffs, pursuant to statute and order $50,000, each to a tenor and effect that said bond should be void if bankrupt funds deposited were accounted for, otherwise to remain in full force and effect; that on the failure of the defendant bank $90,000 were on deposit belonging to bankrupt estates; that the plaintiffs, upon demand, each paid the sum of $45,000, and thereafter each a further sum of $1,020.72, and thereafter filed due proof of claim with the defendant Supervisor of Banking. It is alleged that by the payment of the said sums, respectively, the plaintiffs, respectively, became subrogated in law and equity to the right of the said deposit of the trustee in bankruptey; that the defendant supervisor of banking approved and allowed said claims as preferred, and issued warrants pursuant to law for the sums paid by the respective plaintiffs, to the said plaintiffs; that the said defendant supervisor of banking thereafter declared a dividend, and paid to the said plaintiffs 20 per cent. upon their respective claims from the estate of the said insolvent bank; that thereafter, on the 9th day of February, 1922, the said defendant, through his deputy, advised the plaintiffs that the defendant was in error in issuing said warrants, and demanded the return thereof, and refused the plaintiffs the right to participate in the "Washington bank de positors' guaranty fund," and has denied the right of the plaintiffs to participation in the assets of the insolvent bank other than as common creditors. Judgment is prayed that the plaintiffs' claim be decreed preferred, and included in the "Washington bank depositors' guaranty fund." The defendants move to dismiss, because the court has not jurisdiction of the subject matter of the action or of the persons of the defendants, or either of them, the suit being one against the state of Washington, without its consent, in violation of the Eleventh Amendment of the Constitution of the United States; that sufficient facts are not stated, and there is a nonjoinder of indispensable parties, to wit, the guaranty fund board of the state of Washington. The last ground was not discussed. Roberts & Skeel, of Seattle, Wash., for plaintiffs. W. V. Tanner and John P. Garvin, both of Seattle, Wash., for defendants. NETERER, District Judge (after stating the facts as above). Chapter 81, p. 308, Laws of Washington 1917 (amended by Laws 1921, p. 283), creates a guaranty fund for the "protection and security of depositors in banks" known as the "Washington bank depositors' guaranty fund," and also creates a "contingent fund," from which is paid the expenses incurred by the guaranty fund board (consisting of the Governor, ex officio chairman, state bank examiner, ex officio secretary and executive officer, the Attorney General, the legal adviser, and three members appointed by the Governor), and also any losses which may be sustained through the failure of any member bank, and provides for assessments against member banks, and member banks "shall be entitled to participate in the guaranty fund and to advertise that it is a member of said fund, and that its deposits are guaranteed thereby; but no such bank shall advertise that its deposits are guaranteed by the State of Washington." (Italics mine.) "Any losses found in the guaranty fund may be used in paying the owner of guaranteed deposits in member banks, but not until the contingent fund shall have been depleted." The act is too long to be set out or even summarized in detail. In State ex rel. Lewis v. John P. Duke, etc., 120 Wash. 13, at page 15, 206 P. 918, 919, the Washington state Supreme Court said: "The Bank Guaranty Act, as amended, provides for the creation of a fund, the manner of its admin istration, and how banks may become members thereof and withdraw therefrom. It also specified the amount which member banks shall contribute to the fund, the purpose of the fund being to meet guaranteed deposits in the event of insolvency of a member bank." The state has no property interest in the guaranty fund. The fund has no debit or credit relation to the state treasury, nor any relation to the general taxation, nor to any purposes of the state government. By the provisions of section 19, Act, supra, as amended Laws 1921, p. 291, § 10: "Whenever the director of taxation and examination shall have issued warrants in payment of claims for guaranty deposits of any failed bank, such claims and all rights of action and remedies of the depositors therefor, shall inure to the Director of Taxation and Examination for the benefit of the contingent and guaranty funds, and all sums realized therefrom shall be paid into such funds. Section 62, p. 301, Laws Wash. 1917, provides: "Upon taking possession shall proceed to collect the assets thereof of any bank or trust company, the examiner and to preserve, administer and liquidate the business and assets of such corporation. The Supreme Court of Washington (State ex rel. Lewis v. Duke, supra) held that these two acts, of which the sections last quoted are respectively parts, are in pari materia, and should be construed together, and at page 18 (206 P. 920) said: "The bank examiner becomes a creditor of the bank to the amount of the claims which have been transferred to him." On page 16 the court says: "It is provided that the expense in curred in the administration of the act shall be paid out of the contingent fund, and also losses which may be sustained through the failure of a member bank." Section 51, Administrative Code (Laws Wash. 1921, p. 32), provides that the supervisor of banking shall have charge and supervision of the division of banking, etc. It conclusively appears that the state is not interested in the fund, nor responsible to a depositor or creditor. Much emphasis is placed by the defendants upon Lankford v. Platte Iron Works, 235 U. S. 461, 35 S. Ct. 173, 59 L. Ed. 316, in reviewing the Oklahoma Guaranty Act decisions. In that case Justice McKenna, for the majority of the court, four justices dissenting, in referring to the Oklahoma case under review, at page 474 (35 S. Ct. 176), said: "Certainly 2 F.(2d) 113 this construction can be given to the Oklahoma statute; and, granting that it may admit of dispute, an important element to be considered is the decision of the state tribunals." In State ex rel. Lewis v. Duke, supra, at page 19 (206 P. 921), this language is used: "The cases from Oklahoma are especially not applicable because the Bank Guaranty Act in that state directly provided that 'the depositors of a state bank or trust company shall be paid in full,' and that the 'state shall have for the benefit of the depositors' guaranty fund a first lien upon the assets of the state bank or trust company.' There is no such provision in the guaranty law in this state." (Italics mine.) The Supreme Court, Johnson v. Lankford, 245 U. S. 541, 38 S. Ct. 203, 62 L. Ed. 460, another Oklahoma case, in which the court held that an action against the bank commissioner of Oklahoma for alleged failure to safeguard the business and assets Irrigation Co., 238 F. 519, 151 C. C. A. 455; Camunas v. N. Y. S. S. Co., 260 F. 40, 171 C. C. A. 76; Tanner v. Little, 240 U. S. 359, 36 S. Ct. 379, 60 L. Ed. 691; Ex parte Young, 209 U. S. 123, 28 S. Ct. 441, 52 L. Ed. 714, 13 L. R. A. (N. S.) 932, 14 Ann. Cas. 764; Virginia Coupon Case, 114 U. S. 270, 5 S. Ct. 903, 962, 29 L. Ed. 185; Pennoyer v. McConnaughy, 140 U. S. 1, 11 S. Ct. 699, 35 L. Ed. 363; Smyth v. Ames, 169 U. S. 466, 18 S. Ct. 418, 42 L. Ed. 819; Missouri R. R. Co. v. Missouri R. R. Com., 183 U. S. 53, 22 S. Ct. 18, 46 L. Ed. 78; Morrill v. Amer. R. Bond Co. (C. C.) 151 F. 305. This court has jurisdiction. The sufficiency of the facts to afford any relief will be fully considered when the issue is presented on the merits. The motion to dismiss is denied. of the bank or wilful disregard of his duty REPUBLIC CASUALTY CO. et al. v. SCAN under the laws, was not an action against The instant suit is not to enforce a demand against the state, or to obtain any relief from the state, but merely to adjudicate and establish the status of the claims of the plaintiffs, and since the state court held that the state has no property interests, and that the Oklahoma cases which inspired Lankford v. Platte Iron Works, supra, "are especially not applicable," by the same token suggested by Justice McKenna in Lankford v. Platte Iron Works, supra, the decision of the state court is an important element to be considered, and when considered with the expression of Justice McKenna, in Martin v. Lankford, supra, the issue here tendered is not against the state. The mere fact that the defendant is a state officer charged with administering a state statute does not make such an action a suit against the state. Stern v. Board of Dental Examiners, 50 Wash. 100, 96 P. 693; Etna Casualty Co. v. Moore, 107 Wasb. 99, 181 P. 40; Weiland v. Pioneer 2 F. (2d)-8 DINAVIAN-AMERICAN BANK et al. (District Court, W. D. Washington, N. D. October 28, 1924.) No. 292. Banks and banking 15-Bond securing 'deposit of bankrupt estates held "security for specific fund," within bank deposit guaranty statute; "specific;" "generic." Undertaking conditioned that bank designated as depository for bankrupt estates shall account for such funds held specific security, mak ing deposit ineligible to participate in guaranty fund, under Laws Wash. 1917, p. 308, § 1 (Rem. Comp. Stat. 1922, § 3293); words "specific" and "generic" being relative, "generic" having reference to class of related things, and "specific" being limited to particular, definite, or precise thing. and Phrases, First Series, Generic; First and [Ed. Note. For other definitions, see Words Second Series, Specific.] In Equity. Suit by the Republic Casualty Company, and another against the Scandinavian-American Bank and another. Decree for defendants. See, also, 2 F. (2d) 111. This case was before the court on motion to dismiss, decision filed May 20, 1922. The issue tendered by the complaint was there fully stated. To the issue tendered the defendants answer and admit insolvency of defendant bank; diversity of citizenship, payment of the sums by plaintiff as stated; making proof of claim; allowance and issuance of warrants, and then allege inadvertence and error in allowance of claim and issuance of warrants, and pray judgment against the plaintiff and dismissal of the action. The Supreme Court of Washington, in State ex rel. Lewis v. Duke, 120 Wash. 13, at page 16, 206 P. 918, 920, says: "It is plain tors of the bank, other than those specified as guaranteed depositors in section 1, p. 308 (Rem. Comp. Stat. § 3293), do not participate in the guaranty fund." that under the act the credi This deposit was clearly within section 3293, supra, and was specifically secured by the bonds of the plaintiff. The undertaking entered into is that the bank "shall faithfully and truly account for all bankruptcy funds now on deposit or hereafter deposited with it." The bond is without question specific security for a specific fund. The words "specific" and "generic" are relative. Curiel v. Beard (C. C.) 44 F. 551. The term "generic" has reference to a class of related things. Continental Ins. Co. v. Continental Fire Ins. Co. (C. C.) 96 F. 846. While the term "specific" is limited to a particular, definite, or precise thing. Peters v. Banta, 120 Ind. 416, 22 N. E. 95, 23 N. E. 84. There is no question of uncertainty or confusion as to the fund or the security. The prayer of defendants is granted. no better position than original payees, though they took in due course for valuable consideration before maturity and without notice of infirmities, unless, by recitals in certificates, district is estopped from pleading invalidity. 2. Estoppel 62 (4) — Highway district held not estopped from pleading invalidity of certificates of indebtedness. Highway improvement district created by Road Laws Ark. 1919, No. 82, was not estopped to deny validity of certificates of indebtedness given to contractors because commissioners and landowners made no complaint until work represented by such certificates had been complet ed and lands benefited. 3. Municipal corporations 933-Officers cannot bind municipality by invalid evidences of indebtedness. Officers of public corporation cannot, even by confession of judgment, bind municipality by invalid evidences of indebtedness. 4. Highways 113(3)-Contracts for permanent work before assessment of benefits are void and not ratifiable in Arkansas. In Arkansas, contracts of highway district for permanent work before assessment of benefits have been made are wholly void and cannot be ratified by act of Legislature. 5. Judgment 715(1) Judgment in action concerning highway contract does not preclude latter action involving different issues. When issues in former action involving validity of contract for construction of highway were not involved in latter action, latter action is not precluded by adjudication in former action. 6. Statutes 143-Assessment deemed made In pursuance of last valid act, intervening in valid amendatory act not being considered. No. 82, being invalid, assessment of benefits Act of 1920 amending Road Laws Ark. 1919, made in 1920 in highway improvement district made in pursuance of section 16 of that act, created by the act of 1919 must be deemed permitting annual reassessment of benefits; act of 1920 being treated as if it had never been enacted. Rose, Hemingway, Cantrell & Loughborough and Moore, Smith, Moore & Trieber, FILBERT et al. v. ARKANSAS & MISSOURI all of Little Rock, Ark., for plaintiffs. HIGHWAY DIST. (District Court, E. D. Arkansas, W. D. 1. Highways 90-Transferees of certificates of indebtedness of improvement district in no better position than original payees. Purchasers of certificates of indebtedness issued by highway improvement district are in C. T. Coleman and Carmichael & Hendricks, all of Little Rock, Ark., for defendant. TRIEBER, District Judge. There were eleven separate suits instituted by the plaintiffs, but as the issues involved are the same |