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clerk, or the marshal in thus indemnifying themselves prior to incurring expense. Unless the indemnity is provided, the officer may refuse to act.

[2] Inasmuch as the referees are protected by General Order X, I see no reason to construe section 64b (3) as it was construed by the referee in the Matter of George H. Burke, 6 Am. Bankr. Rep. 502, who held that among the claimants having priority under section 64b (3) there was a suborder of priority in favor, first, of the referee; next, the trustee; and, lastly, in that case, the bankrupt's attorney. In the absence of any provision in the statute for this suborder of priority, my opinion is that the fund of $89.38 should be distributed pro rata among the claimants coming under that class.

The order of the referee is reversed, and it is ordered that distribution be made in accordance herewith.

UNITED STATES v. ONE FORD COUPE (PUGH & BOATNER, Interveners). SAME v. ONE CADILLAC ROADSTER (PUGH & BOATNER, Interveners). (District Court, W. D. Louisiana, Shreveport Division. December 5, 1924.)

Nos. 1473, 1474.

1. Searches and seizures 5-Vehicle illegally seized by other than federal agents may be subjected to forfeiture.

A vehicle seized by a person not acting un

der federal authority, though illegally, may be subjected to forfeiture under a federal statute, if grounds for such forfeiture exist.

2. Internal revenue 2-Rev. St. § 3450, not repealed by Prohibition Act.

Any question as to the repeal of Rev. St. § 3450 (Comp. St. § 6352), providing for forfeiture of vehicles used for removal or concealment of taxable property with intent to defraud the United States of the tax thereon, by

the Prohibition Act, was removed by Supplemental Act Nov. 23, 1921, § 5 (Comp. St. Ann. Supp. 1923, § 10138%c).

Libels for Forfeiture. Suits by the United States against one Ford coupe and against one Cadillac roadster; Pugh & Boatner, interveners in both suits. On exceptions to libels. Overruled.

DAWKINS, District Judge. Counsel for the government filed monitions or libels for the forfeiture of the above automobiles under the Act of July 13, 1866, now section 3450 of the Revised Statutes (Comp. St. § 6352), alleging that they had been seized by a federal Prohibition Agent on May 12, 1924, and were still held in custody under said seizure; further, "that heretofore, to wit, on the 29th day of April, 1924, in said division and district, and before said seizure was made, the property above described was by one J. C. Clark, alias C. A. Chastain, used in the removal and for the deposit and concealment of one hundred (100) quarts of spirituous liquors, with intent to defraud the United States of the tax thereon, the said spirituous liquors then and there being a commodity for and in respect of which a tax had been, was and is imposed by the laws of the United States, which tax had not been paid, contrary to the form of the statute of the United States in such case made and provided."

Thereafter Pugh & Boatner, a partnership, was permitted to intervene and assert in said proceeding a claim of ownership of the cars. Exceptions were then filed as follows: First, that the court was without jurisdiction, because there had been no lawful seizure of the cars; second, that the bill disclosed no cause of action; and, third, that it was too vague and uncertain to enable them to plead thereto.

The cases have been submitted at this time on the exceptions alone, the second and third upon the face of the pleadings, and the first upon proof administered showing the circumstances of the seizure. closed were as follows:

The facts dis

The prohibition director for the state of Louisiana and district attorney for the Western district had made a general request of the sheriff of Caddo parish that he stop, seize, and hold for the federal officers all automobiles caught transporting intoxicating liquors in this community. Accordingly said sheriff, upon being informed that these cars were on their way to Shreveport, La., transporting intoxicating liquors, sent one of his deputies down what is known as the Mansfield road to meet them. The cars were met, stopped, searched, and seized by the deputy sheriff, all without warrant or other writ. The sheriff testified that he act

Aubrey M. Pyburn, Asst. U. S. Atty., of ed solely for the federal authorities, because Shreveport, La., for plaintiff.

Byron A. Irwin, J. N. Marcantel, and Pugh & Boatner, all of Shreveport, La., for interveners.

there was no law of the state under which the automobiles could be seized and sold for such offenses. The machines were then taken to a garage or warehouse, where the pro

3 F.(2d) 64

hibition agent later appeared, also without warrant, announced to the keeper of the garage that he was seizing them, delivered to him written notice of seizure, and reported to the prohibition director what he had done.

Exception to the Jurisdiction.

[1] It is argued on behalf of the claimants or plaintiffs in the exception that the court is without jurisdiction, for the reason that there was no valid seizure, a condition necessarily precedent to the vesting of jurisdiction; that the state officers had no warrant or authority, to make the seizure; that, even if they could be said to have acted for the United States, they were prohibited from seizing without warrant, unless it was apparent to their senses that the law was being violated in their presence, which evidence, in this instance, did not exist. Claimants contend, too, that to permit the forfeiture under these circumstances would destroy the protection afforded them and their property under the Fourth Amendment to the federal Constitution against unlawful search

and seizure.

It has long since been settled that the Fourth Amendment and similar provisions of the United States Constitution apply alone to the officers and agents of the national government. They do not affect persons not acting under federal authority. Barron v. Mayor and City Council of Baltimore, 7 Pet. 243, 8 L. Ed. 672. Hence, when evidence is obtained by any one other than federal agents, whether lawful or otherwise, there is nothing to prevent its being used by the government for whatever purpose the circumstances may require. In other words, the restraining power of the federal Constitution withholds only the hands of its own agents. To them, and to them alone, its imperative command is, "Thou shalt not." This rule is thoroughly recognized, alike in Constitution, statute, and jurisprudence. The Fourth Amendment; statute of June 15, 1917, known as the Espionage Act (40 Stat. 217); Amos v. United States, 255 U. S. 314, 41 S. Ct. 266, 65 L. Ed. 655; Gouled v. United States, 255 U. S. 298, 41 S. Ct. 261, 65 L. Ed. 647, and authorities therein cited.

In Louisiana the law is settled that the fact that evidence was illegally obtained does not prevent its use against the accused. State v. Fleckinger, 152 La. 337, 93 So. 115. In other words, under the state law the search and seizure without warrant would not prevent the evidence being used for any purpose; hence the government could use it,

3 F. (2d)-5

since the seizure was made by an independent agency, over which the latter had no control and for whose acts it was not responsible. United States v. Story (C. C. A.) 294 F. 517. It is true that this lastcited case was one which arose under the National Prohibition Act, but I see no reason why, if in the one case the action of the state officer was sufficient to support a forfeiture, it could not form the basis of jurisdiction in the other.

"Property may be seized by a private person, acting at his peril, and, if a cause of forfeiture is shown to exist against it, condemnation will follow, notwithstanding the seizure was by an unauthorized person." United States v. Story, supra, citing The Caledonian, 4 Wheat. 101, 4 L. Ed. 523; Wood v. United States, 16 Pet. 342, 10 L. Ed. 987; Taylor v. United States, 3 How. 197, 11 L. Ed. 559.

As pointed out in the Story Case, supra, it was not necessary that the car should be actually offending at the time the federal officer took charge of it. It would seem from the dictum of that decision that, if the

sheriff had turned the machine over to the marshal after the libel had been filed, this would have been sufficient without further seizure by the prohibition agent. Treating the matter, therefore, as a seizure by a private individual, which I think should be done, in view of the fact that the sheriff did not purport to act under any state law (and in view of the further fact that the request of the prohibition director and district attorney could not vest him with any powers under Federal statutes), there seems to be ample authority to sustain the proposition that the government might avail itself of the seizure in that capacity as the basis for this proceeding. See authorities above cited.

Exception of No Cause of Action.

[2] Taking up this exception as a demurrer (inasmuch as the exception of no cause of action is unknown to the admiralty practice), I am of the view that the bill makes sufficient allegations, if sustained by proof, to support the prayer for forfeiture. It follows in substance the language of the statute. Section 3450, R. S.; United States v. Mincey, 254 F. 287; United States v. One Saxon Automobile, 257 F. 251, 168 C. C. A. 335. Whatever basis there might have been for saying that section 3450 was repealed by the National Prohibition Act was removed by the Act of November 23, 1921, supplemental to the National Prohibition Act, section 5 of which reads as follows:

"All laws in regard to the manufacture Whittemore, both of New York City, of and taxation of and traffic in intoxicating counsel), for defendant. liquor, and all penalties for violations of such laws that were in force when the Na

tional Prohibition Act was enacted, shall be and continue in force, as to both beverage and non-beverage liquor, except such provisions of such laws as are directly in conflict with any provision of the National Prohibition Act or of this act." Comp. St. Ann. Supp. 1923, § 10138%c.

I do not find any conflict between the Volstead Act and section 3450 in so far as procedure is concerned, but the one can be treat

ed as supplemental to the other, or as affording an additional remedy to the govern

ment in such matters. United States v. Stafoff, 260 U. S. 477, 43 S. Ct. 197, 67 L. Ed. 358.

As to the plea of vagueness, I am of the opinion that the claimant is sufficiently put on notice as to what the government expects to prove when it alleges that the car had been used in the removal or transportation of intoxicating liquors upon which the tax had not been paid.

For the reasons assigned, the exceptions

are overruled.

LEWIS

CAMPBELL, District Judge. This is an action in equity brought by the plaintiff to the alleged infringement of patent No. 1,recover from the defendant for damages for 152,326, issued by the United States Patent Office to the plaintiff, dated August 31, 1915, and to restrain the defendant by injunction from further alleged infringement.

[1] The ownership of the patent by answered raising the twofold issue of inplaintiff is admitted, but the defendant has validity and noninfringement.

nine claims of the patent in suit, which The plaintiff bases the action at bar on all

read as follows:

"1. In apparatus for the purpose set forth, in combination, a floating support, a launchway and spring means between said the former to rise and fall to a greater desupport and said launchway for permitting gree than the latter.

"2. In apparatus for the purpose set forth, in combination, a floating support, said support and launchway for permitting a launchway, a yieldable connection between the former to rise and fall to a greater degree than the latter, and means for rendering said connection substantially unyielding MERRITT, CHAPMAN & SCOTT to insure equal advancement of said support and launchway.

aff'd TF (28) 265.

CORPORATION.

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The Lewis patent, No. 1,152,326, for apparatus for laying submarine pipe, held valid but for a combination of elements, most of which were old, and limited by the prior art, and the proceedings in the Patent Office; also, held not infringed by an apparatus which lacks some essential element of each claim. 2. Patents

178-Patentee cannot claim as equivalent something claimed and rejected. A patentee, though entitled to equivalents,

cannot broaden the allowed claims of the patent by claiming as an equivalent anything that was rejected.

In Equity. Suit by Thomas A. Lewis against the Merritt, Chapman & Scott Corporation. Decree for defendant.

Dutton & Kilsheimer, of New York City (James B. Kilsheimer, Jr., and Lawrence Bristol, both of New York City, of counsel), for plaintiff.

Emery, Booth, Janney & Varney, of New York City (Lucius E. Varney and Manvel

"3. In apparatus for the purpose set forth, in combination, a floating vessel, a trussed metal launchway, a resilient pivotal connection between said elements including a plurality of cushioning springs interposed therebetween, and means to render said connection unyielding while permitting relative pivotal movement.

"4. In apparatus for the purpose set forth, in combination, a floating vessel, a trussed metal launchway, spring means connecting said support and said launchway for permitting the former to rise and fall to a degree greater than the latter and a buoyancy tank secured to said launchway.

"5. In apparatus for the purpose set forth, in combination, a floating vessel, a launchway, spring means for attaching said launchway to said vessel, a submerged buoyancy tank secured to said launchway and means to control the buoyancy of said tank.

"6. In apparatus for the purpose set forth, in combination, a floating vessel, a launchway pivotally connected at one end to said vessel, and a supporting connection including resilient means between said vessel and a medial submerged portion of said launchway.

3 F.(2d) 66

"7. In apparatus for the purpose set forth, in combination, a floating vessel, a trussed metal launchway pivotally attached thereto, a sling for supporting said launchway remote from the attachment of the latter to said vessel, said sling including spring means and a buoyancy tank carried by said launchway to relieve said sling.

"8. In apparatus for the purpose set forth, in combination, a floating vessel, a curvilinear launchway suspended therefrom and provided adjacent its submerged end with a scraper, and a buoyancy tank secured to said launchway and tending to regulate the action of said scraper.

"9. In apparatus for the purpose set forth, in combination, a floating support, a reinforced launchway having its major length submerged to guide a pipe line from said support, and a plurality of spaced cushioning connections between said support and said launchway to substantially free the latter from vibrations of the former caused by water fluctuations."

Two siphons have been laid across the Narrows between Brooklyn and Staten Island. The first was laid during 1914 and 1915, by Merritt & Chapman Derrick & Wrecking Company, the predecessor of the present defendant. The second was laid by the defendant in 1923.

This plaintiff brought suit against the Merritt & Chapman Derrick & Wrecking Company, which laid siphon No. 1, which action was dismissed; the pipe-laying operation complained of having been completed before the plaintiff's patent issued. There has therefore been no adjudication of the patent.

In order to determine the proper construction of the claims of the patent in suit, we will first consider the prior art; all the patents offered being United States patents.

Patent No. 39,691, issued to J. F. Ward, dated August 25, 1863, for improvement in pipe couplings.

Patent No. 111,498, issued to J. F. Ward, dated January 31, 1891, for improvement in the modes of laying pipes across rivers, discloses a curved launchway, therein called a "cradle," supported by chains from the barges, with its forward end above water and its rear end resting upon the water bed. The former use of the plan in laying a line of 36-inch pipe across the Hackensack river, and its then being used in laying a line of 36-inch pipe across the Schuylkill river at Philadelphia, are set forth by the patentee in the patent. The principal elements

of the patent in suit, except springs and scraper, are disclosed in said patent.

Patent No. 293,932, issued to H. B. Angell, dated February 19, 1884, for dredger, discloses a barge on which is mounted suitable machinery, with a frame or ladder hinged to one end extending down into the water and carrying at its lower end suitable excavating instruments. The position of the lower end of the ladder is controlled by indicated cables, and a hollow float is attached near the lower end of the ladder to assist in raising it, and to prevent too great weight upon the excavation or suspending chains. This float might well be called a "buoyancy tank."

Patent No. 661,193, issued to W. W. Priestley, dated November 6, 1900, for subaqueous dredger, discloses a sealed buoyancy chamber placed around the main pipe to sustain a portion of the weight.

The following patents disclose a spring or springs used to form a yieldable connection in mooring or anchoring vessels:

Patent No. 721,465, issued to R. C. Reavley, dated February 24, 1903, for hawser attachment for vessels, and

Patent No. 730,009, issued to W. A. Duncanson, dated June 2, 1903, for anchor.

Patent No. 869,130, issued to F. A. Bierie, dated October 22, 1907, for yielding boat cleat.

Patent No. 957,315, issued to W. A. Duncanson, dated May 10, 1910, for surge-reliever or safety device for tow lines.

The following patents disclose submarine cable-laying apparatus including a plow or scraping device which may prepare a trench to receive the cable by being drawn behind the vessel:

Patent No. 734,615, issued to B. Roberts, dated July 28, 1903, for submarine cablelaying device.

Patent No. 737,021, issued to B. Roberts, dated August 25, 1903, for submarine cablelaying device.

Patent No. 815,163, issued to S. P. Hat

field, dated March 13, 1906, for apparatus for laying electric conductors.

Patent No. 883,084, issued to A. Casse, dated March 24, 1908, for apparatus for placing bed and bank coverings in waterways, discloses a cutter or scraper that may be located in the front of a rotating tilting platform pivoted in a barge to smooth the surface of the bed or bank more effectually.

Patent No. 375,464, issued to H. C. Thacher and G. H. Breymann, dated December 27, 1887, for method of and apparatus for laying submarine pipes, the meth

od being to connect a series of pipe lengths on land by lead joints in the ordinary way, buoying the same by casks or other buoyant bodies, and placing them alongside of a scow and supporting them by cables passed through blocks attached to eyebolts at the ends of the rods, which pass through the top cross-beam of an overhanging derrick or frame near each end of the scow. The said rods extend through crossheads and are surrounded by springs so that the weight of the pipe line tends to compress the springs. The defendant also offered in evidence the following prior publications:

"Engineering," June 9, 1871, page 398, an article containing a further disclosure of the Ward apparatus hereinbefore described in connection with patent issued to Ward, No. 111,498, together with an engraving.

Paper 747, from the "Transactions of the American Society of Civil Engineers," vol. 33, April 1895, containing a description of the apparatus designed and satisfactorily used by Franklin Riffle, in laying a submerged pipe line across the Willamette river, at Portland, Or., during the years 1893 and 1894, and a clear drawing of the same. It disclosed a floating support comprising two scows, a curved launchway of trussed construction, the forward end of which is supported upon a trunnion extending between two scows, the lower end resting upon the bottom of a trench previously prepared, a vertical threaded rod connection from the lower end of the launchway to the rear of the scows to relieve the drag upon the bottom of the trench when required. At the lower end of the launchway a hinged shoe was provided for the delivery of the pipe from the launchway to the trench bottom, so that the joints should not be greatly deflected.

"Journal of the Association of Engineering Societies," vol. 26, of 1901, page 209, containing a description of an apparatus satisfactorily used in laying a line of pipe under water across Chelsea creek, in 1900, with a drawing and a reproduction of a photograph.

There were also received in evidence photographs and a blueprint of the apparatus actually used, which included a scow, a curved trussed and braced launchway, which was hung from the scow by wire ropes. To make the launchway rest more evenly on the bottom, there was provided at the rear end thereof a wooden shoe which probably served to even off small irregularities along the bottom of the trench.

To control the location of the tail end of the launchway, tackle from the scow to the tail end of the launchway was provided.

From a consideration of the prior art, we do not find the u-shaped scow nor any example of blocking up a spring connection to prevent movement. We do find from such consideration that it is a common thing to use springs in a connection between two moving things, or between a floating object, vessel, or something to be connected with a vessel; that a pivotal shaft support similar to the one in the patent in suit and a buoyancy tank are not new, and except for the spring, the rear sling was not new. No plow at the bottom of the launchway is found in any pipe-laying apparatus, but a plow in a similar location is found in apparatus used for laying submarine cables. We do, however, find a wooden shoe at the rear end of the launchway in the apparatus used in the pipe-laying under the Willamette river and the Chelsea creek. The other elements of the patent in suit are shown in the prior art. It thus appears that the patent in suit is for a combination most of the elements of which were old and well-known in the prior art, and therefore the construction of the claims must be limit-· ed thereby; but a consideration of the file wrapper of the patent in suit still further limits the construction of its claims.

Plaintiff first filed his application in the Patent Office on May 27, 1915, and asked for fourteen very broad claims. Before action on his case, the plaintiff asked for two additional broad claims, numbered 15 and 16. He then changed his attorneys, revised all his claims, recasting them into fourteen claims. Upon examination, claims 2 and 11 were allowed and now constitute claims 2 and 9 of the patent in suit. Plaintiff acquiesced in the action of the Patent Office in rejecting the claims, and amended his application, recasting some claims and presenting new claims which with the claims allowed made ten in all. Claim 10 was finally canceled.

As a result of the amendments, we find claims 1, 3, 4, 5, and 7 of the patent in suit definitely include a spring in some form or other in the connection between the scow and launchway. The inclusion of the spring having been relied upon by the patentee to secure the allowance of the patent, he cannot now broaden his claims to include other means which were covered by the rejected claims. It is true that claim 2 of the patent in suit contains as one of the elements of the combination a "yieldable connection

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