of Columbia, have invented a new, original, and ornamental design for artificial building blocks, as disclosed by the accompanying drawings, made a part of this specification, of which the following is a description.

"Figure 1 is a front view of the block, and Fig. 2 is a side view.

"Having thus disclosed my invention, what I claim, and desire to secure by letters patent, is

"The ornamental design for an artificial building-block substantially as herein shown."

Howard G. Cook, for appellants.

Chas. J. Williamson, for appellee.

Before GROSSCUP, BAKER, and SEAMAN, Circuit Judges.

BAKER, Circuit Judge. Witnesses for appellants, whose testimony stands uncontradicted and whose veracity is unassailed, establish several instances of prior use.

In a house, built years before the patent was applied for, layers of rock-face and of smooth-face stones were alternated. If one rockface stone lying upon a smooth-face stone be taken as a unit, the seam between them is so fine that to the eye of the ordinary observer the design is the same as if one stone were dressed partly rock-face and partly smooth-face. The smooth part in this instance was only about one-fourth of the width of the rock-face, while the patent indicates that the parts are of substantially equal width. On this ground, and for the further reason that the smooth-face and the rock-face parts were not made in one piece, it is contended that the instance in question is not an anticipation. The architect testified that there is no fixed rule respecting the comparative widths of the two layers; and the appearance to the eye would be the same, we find, whether two stones were used or only one with a line of separation marked thereon. But, if it were conceded that this instance is not sufficient as an anticipation, we are of the opinion that there was no invention in taking as a design for one piece a design that had appeared from the use of two pieces in conjunction.

The objections as to the relative widths and as to the design not appearing on one stone are met by the other instances.

Bearing in mind the familiar rule, we find no basis for the slightest doubt of the testimony concerning prior use. The witnesses said that the structures were in existence, as erected, at the time they were testifying. Owners, architects, workmen, averred that the structures were put up many years prior to the application for the patent. Ap

pellee offered no evidence in contradiction, and was and is content to invoke the rule of reasonable doubt. The structures speak for themselves on the question of design. Their nature and their location were such that no pretense can be made that they were erected for the purposes of this case. As to their age, the pertinent question here was not whether a particular building was erected in 1881 or in 1882, for instance, but whether the buildings were in existence prior to the alleged invention in 1904. On that we think it not unfair to conclude that the appearance of the structures convinced appellee that the testimony as to age could not be disputed. The Barb Wire Patent, 143 U. S. 275, 12 Sup. Ct. 443, 36 L. Ed. 154, Bettendorf Patents Company v. Little Metal Wheel Company, 123 Fed. 433, 59 C. C. A. 473, and other cases in which the thing done can only be known as it is reconstructed, years afterwards, from the memory of witnesses, have no pertinency.

As to the unfair competition branch of the case, there is no evidence whatever on which to support the decree. Appellants simply sold the alleged infringing blocks as of their own make, with no attempt and no intent to palm them off as the goods of another.

The decree is reversed, with the direction to dismiss the bill for want of equity.

(149 Fed. 1003.)

NATIONAL GLASS CO. et al. v. UNITED STATES GLASS CO. et al.

(Circuit Court of Appeals, Third Circuit. January 16, 1907.)

No. 50.

PATENTS-INFRINGEMENT-FURNACES FOR REHEATING GLASSWARE.

The Schulze-Berge patent, No. 411,131, and the Caldwell patent, No. 442,855, both for furnaces for reheating or fire-finishing glassware, as limited by construction in prior suits to the precise mechanism described, held not infringed by a furnace which does not have a laterally projecting floor, which is an essential feature of both.

Appeal from the Circuit Court of the United States for the Western District of Pennsylvania.

For opinion below, see 147 Fed. 254.

James K. Bakewell, for appellants.

M. A. Christy and George H. Christy, for appellees.

Before DALLAS, GRAY, and BUFFINGTON, Circuit Judges.

BUFFINGTON, Circuit Judge. In the court below the National Glass Company and another filed a bill charging the United States. Glass Company and another with infringement of patent No. 411,131, to Schulze-Berge, and No. 442,855, to Caldwell. That court, in an opinion reported at 147 Fed. 254, dismissed the bill for noninfringement. Thereupon this appeal was entered.

These patents were before this court in the case of Bryce Bros. v. National Glass Company. In an opinion reported at 116 Fed. 186, 53 C. C. A. 611, the art is so fully set forth, and the devices illustrated and so fully described, that reference to these opinions precludes the neces

79 C.C.A.-33

sity of present description. Referring to both these patents it was in the last-mentioned case held by this court:

"That the inventions are not of a pioneer or primary character, and that therefore they must be confined and limited to the precise device, as described in the specifications and claims of that art."

Of the Schulze-Berge patent, here involved, it was there said:

"The essential structural peculiarity, therefore, is a furnace with a laterally projecting floor, 02, of the combustion chamber, in which floor the glory holes are placed, so that a glass article may be vertically raised or lowered, in presenting it to them and withdrawing it from them."

And of the Caldwell patent:

"It will thus be seen that there is described and shown a glass furnace and combustion chamber, having the essential characteristic of that patented in No. 411,131, to wit, the laterally projecting cover, with the glory holes therein and thus accessible from below. Both require a glass-heating furnace, and both require that that furnace should be so constructed as to have a laterally projecting floor that would admit of a glory hole therein and be accessible from below."

Now, the construction thus placed on these patents, which is now the law thereof, the court below followed and applied. The respondents' device has no laterally projecting floor. Lacking this essential feature of the two patents in question, there can be no question that it does not infringe. Moreover, this laterally projecting floor made possible the use of a revolving table on which the glassware was carried through the furnace. This table is an element in all the claims of the Caldwell patent here involved, and a revolving table cannot be used in the respondents' structure. Restricting the claims, as the court below rightly did, to the limited scope awarded them by this court in the prior case, its decree was a logical sequence.

It must therefore be affirmed.

(149 Fed. 196.)

ROSS v. CORNELL STEAMBOAT CO.

(Circuit Court of Appeals, Third Circuit. November 2, 1906. Rehearing Denied December 31, 1906.)

No. 32.

COLLISION-TUG WITH TOW AND ANCHOred Dredge-MUTUAL FAULTS. A tug coming down the Hudson river at night with a long tow held in fault for a collision between her tow and a dredge anchored at the side of the channel in a position known to the tug, and the dredge also held in fault for remaining at night in a place where by reason of a bend in the river it was difficult for vessels with long tows to pass her in safety. [Ed. Note. For cases in point, see Cent. Dig. vol. 10, Collision, § 79.] Appeal from District Court of the United States for the District of New Jersey.

For opinion below, see 143 Fed. 166.

Charles D. Thompson, for P. Sanford Ross.

J. Parker Kirlin, for Cornell Steamboat Co.,

Before DALLAS, GRAY, and BUFFINGTON, Circuit Judges.

PER CURIAM. These are cross-appeals from a final decree of the District Court for the District of New Jersey in a cause civil and maritime.

The libelant was the owner of a dredge, and in his libel he sought to recover damages from the respondent for a collision between the dredge, which was anchored in the Hudson river, and one or more of a string of barges in tow of the respondent's steamboat. The court below found both parties at fault, and divided the damages between them. In approving this decision, we adopt the reasoning of the learned judge upon which it is founded, as set forth in the full and satisfactory opinion filed by him and to be found in 143 Fed. 166. The decree of the court below is affirmed.

(150 Fed. 1.)

FLICKINGER v. UNITED STATES.

(Circuit Court of Appeals, Sixth Circuit. December 5, 1906.)

No. 1,556.

1. BANKS AND BANKING-OFFENSES BY OFFICERS OF NATIONAL BANKS-INDICTMENT FOR MISAPPLICATION OF FUNDS.

In an indictment under Rev. St. § 5209 [U. S. Comp. St. 1901, p. 3497], charging an officer of a national bank with a willful misapplication of its funds with intent to injure and defraud the association, it is not necessary to aver that the acts set out were done without authority from the directors.

[Ed. Note. For cases in point, see Cent. Dig. vol. 6, Banks and Banking, § 973.]

2. SAME-ACTS CONSTITUTING OFFENSE.

The discounting by the president of a national bank with the funds of the bank of commercial paper known by him to be worthless or fictitious, for the benefit of an insolvent corporation of which he is an officer, and with intent to injure and defraud the bank, is a willful misapplication of its funds, constituting a criminal offense under Rev. St. § 5209 [U. S. Comp. St. 1901, p. 3497.]

[Ed. Note. For cases in point, see Cent. Dig. vol. 6, Banks and Banking, § 964.]

3. CRIMINAL LAW-VERDICT-REPUGNANCY-SEVERAL COUNTS.

Where an indictment under Rev. St. § 5209 [U. S. Comp. St. 1901, p. 3497], charging an officer of a national bank with willful misapplication of its funds, contains counts each based on the discounting of a separate instrument, and another count based on the discounting of all of such instruments, a verdict is not repugnant and inconsistent because it finds the defendant guilty on the latter count and not guilty on the former. [Ed. Note.-For cases in point, see Cent. Dig. vol. 14, Criminal Law, §§ 2100, 2101.]

In Error to the District Court of the United States for the Eastern Division of the Northern District of Ohio.

T. E. Powell, for plaintiff in error.
John J. Sullivan, for the United States.

Before LURTON, SEVERENS, and RICHARDS, Circuit Judges.

RICHARDS, Circuit Judge. The plaintiff in error, Edward Flickinger, was convicted of aiding and abetting Otho L. Hays, the president of the Galion National Bank, of Galion, Ohio, in certain violations of section 5209 of the Revised Statutes [U. S. Comp. St. 1901, p. 3497]. The indictment contained 52 counts, charging Hays as principal, and Flickinger as aider and abettor, with willfully misapplying the moneys, funds, and credits of the bank by certain methods described, and with unlawfully issuing certain certificates of deposit and bills of exchange without authority from the directors, all with intent to injure and defraud the bank. They were both convicted on six counts, Nos. 38, 40, 41, 42, 43, and 50, each charging a willful misapplication of the moneys, funds, and credits of the bank, with intent to injure and defraud it; the first five by discounting and passing to the credit of the Flickinger Wheel Company, at that time insolvent, certain worthless, fictitious, and fraudulent drafts, drawn by the Flickinger Wheel Company on the Vehicle Wheel Club, and accepted by the latter, and the last by discounting and passing to the credit of the Flickinger Wheel Company certain worthless and unsecured accommodation notes, given it by the Galion Wagon & Gear Company, both companies being then wholly insolvent. A motion for a new trial being overruled, the defendants were each ordered to be imprisoned for 71⁄2 years in the penitentiary on each of the six counts; the sentence to be concurrent and not cumulative. The defendant Hays is now undergoing the punishment imposed by this sentence; the defendant Flickinger alone having prosecuted error.

The rule is well established that where a judgment of guilty is based upon several counts and the sentence is concurrent, as in this case, the judgment will be sustained if any one of the counts supporting it is found good. Claassen v. U. S., 142 U. S. 140, 12 Sup. Ct. 169, 35 L. Ed. 966. It is not our purpose, however, to select some one of these six counts, and base out affirmance upon it alone, for we think them all good. The court below overruled a demurrer to the indictment and each count thereof. It is contended it erred because the counts under consideration do not describe a willful misapplication of the funds of the bank within the inhibition of the statute, and, more particularly, do not allege that the defendant Hays did the acts charged against him without authority from the directors. The five counts charging a willful misapplication through the discount of the Vehicle Wheel Club drafts allege that the defendant Hays was, at the time the transaction took place, the president of the Galion National Bank, having general superintendence of its affairs, and that he willfully misapplied the moneys, funds, and credits of the bank, then under his control and custody as president, with intent to convert the same to the use and benefit of the Flickinger Wheel Company, and with intent to injure and defraud the bank, by discounting three drafts, one for $9,000, one for $7,500, and one for $7,500, aggregating in amount $24,000, which bear the acceptance of the Vehicle Wheel Club, by Edward Flickinger, president (describing them and giving a copy of one, the others not being obtainable)

"Which said drafts were then and there, when so discounted, worthless, unsecured, false, and fictitious drafts and obligations, and had been drawn by