contention rests is apparent from the frank concession that the indictment would be unquestionably good if the pleader had simply added the phrase (usually inserted to comply with the customary form) that the defendants had conspired, not only with each other, but also with "other persons to the grand inquest unknown." Their position will appear in the following quotation from the brief; the same concession being made in several similar passages:

"We do not contend that under no circumstances could the defendants have been prosecuted for conspiracy to commit an offense under the Bankruptcy Act (Act July 1, 1898, c. 541, 30 Stat. 545 [U. S. Comp. St. 1901, p. 3418]). All that we contend is that they cannot be so prosecuted unless the bankrupt Granich is a party to the combination. If he was, the indictment should have so alleged.

"Had it charged that the conspiracy was between the defendants and the bankrupt Granich, or between the defendants and 'divers other persons,' a method recognized by law as a means of including conspirators not being prosecuted, and which would have included and been tantamount to an allegation that the conspiracy was with the bankrupt Granich, then the acts of the bankrupt as well as of the other conspirators would have been contemplated. If done, such acts would have been criminal as to one of the conspirators, to wit, Granich, and so made the conspiracy criminal as to all. On consummation of such a conspiracy section 29b (1) would have been violated because one of the conspirators, the bankrupt, would be guilty of concealment from his trustee and could be indicted under section 29b (1).”

Summarized, the argument is this: The charge is conspiracy to commit a crime. The crime is the concealment of assets from a trustee in bankruptcy. This offense can only be committed by the bankrupt himself; but the bankrupt is neither named as a conspirator (although the indictment clearly sets forth his participation), nor is he included by a formal averment embracing "other persons," etc. Therefore the defendants have been improperly convicted of conspiring to commit a crime that neither one nor both of them could commit, either separately or together, unless they conspired with the bankrupt himself. And, as a conspiracy with him is not charged in direct and precise terms, the final result is said to be that the indictment fails to set out an indictable offense.

We shall not attempt to follow the earnest and elaborate argument that was made on behalf of the defendants. In our opinion it is somewhat belated, and it certainly has not satisfied us that the smallest injustice has been done. The omission complained of seems to fall fairly within the spirit of Rev. Stat. § 1025 (U. S. Comp. St. 1901, p. 720), and to be a "defect or imperfection in matter of form only, which shall not tend to the prejudice of the defendant." A situation much like this is discussed in Cohen v. United States, 157 Fed. 651, 85 C. C. A. 113, and we are content to concur in substance with the Court of Appeals of the Second Circuit. We may note, also, that timely objection had been taken there by demurrer in the Circuit Court. United States v. Cohen, 142 Fed. 983. Neither court was convinced that the objection should prevail.

The judgment is affirmed.

GRAY, Circuit Judge, dissents.

C. H. LAWRENCE & CO. v. SEYBURN, Collector of Internal Revenue. (Circuit Court of Appeals, Fifth Circuit. February 25, 1913.)

No. 2,370.

1. APPEAL AND ERROR (8 730*)-ASSIGNMENTS OF ERROR-INSTRUCTIONS-REVIEW-RECORD.

Charges given will not be reviewed, where the assignments of error state no facts proven or in issue to enable the appellate court to determine whether the charges were material or relevant to the issue submitted to the jury.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 30133016; Dec. Dig. § 730.*]

2. INTERNAL REVENUE (§ 16*)—ADULTERATED BUTTER-TAXATION-INTENT. For a dealer in adulterated butter to be liable to the internal revenue tax imposed by Act Cong. May 9, 1902, c. 784, 32 Stat. 193 (U. S. Comp. St. Supp. 1911, p. 1339), it is immaterial whether the dealer knowingly engaged in the business or not.

[Ed. Note. For other cases, see Internal Revenue, Dec. Dig. § 16.*] In Error to the District Court of the United States for the Eastern District of Louisiana; Rufus E. Foster, Judge.

Action by C. H. Lawrence & Company against Edward I. Seyburn, as Collector of Internal Revenue for the District of Louisiana, to recover taxes assessed against plaintiffs as wholesale dealers in adulterated butter and paid under protest to avoid threatened prosecution for penalties. From a judgment in favor of defendant, plaintiff brings error. Affirmed.

Jno. D. Rouse, Wm. Grant, and W. B. Grant, all of New Orleans, La., for plaintiff in error.

Charlton R. Beattie, U. S. Atty., of New Orleans, La., for defendant in error.

Before PARDEE and SHELBY, Circuit Judges, and GRUBB, District Judge.

PER CURIAM. [1] The first and second bills of exception upon which the first four assignments of error are predicated show no state of facts proven or in issue for the court to determine whether or not the court's charges to the jury specially excepted to were material or even relevant to the issue to be submitted to the jury, and therefore neither of the said assignments is well taken.

[2] For a dealer in adulterated butter to be liable to a tax by the United States under the statute approved May 9, 1902, c. 784, 32 Statutes at Large, p. 193 (U. S. Comp. St. Supp. 1911, p. 1339), it is immaterial whether or not the said dealer "knowingly" engaged in the business.

We find no reversible error in the transcript, and the judgment of the District Court is affirmed.

*For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes 202 F.-58

BILLINGS, U. S. Com'r of Immigration, v. HAM

(Circuit Court of Appeals, First Circuit. February 13, 1913.)

No. 932.

ALIENS (§ 31*)-CHINESE LABORERS-DEPORTATION-IMMIGRATION ACT. Chinese laborers are not exempted from the general provisions of Immigration Act Feb. 20, 1907, c. 1134, 34 Stat. 898 (U. S. Comp. St. Supp. 1911, p. 499), providing for the deportation of aliens unlawfully entering the United States by the Chinese Exclusion Acts, and hence Chinese laborers unlawfully in the country and held for deportation under warrant issued by the department of commerce and labor under the Immigration Act were not entitled to discharge and trial under the Exclusion Acts.

[Ed. Note.-For other cases, see Aliens, Cent. Dig. § 92; Dec. Dig. § 31.*

What Chinese persons are excluded from the United States, see note to Wong You v. United States, 104 C. C. A. 538.]

Appeal from the Circuit Court of the United States for the District of Massachusetts; Francis C. Lowell, Judge.

Petition for writ of habeas corpus by Guy A. Ham to obtain the release from custody of certain Chinese aliens named Wah Gan, Moy Dep, Woy Sang, and Chin Quon, held by George B. Billings, United States Commissioner of Immigration, under a deportation warrant. From a decree granting the writ, the commissioner appeals. Reversed, with directions.

William H. Garland, Asst. U. S. Atty., of Boston, Mass., for appellant.

Guy A. Ham, of Boston, Mass., pro se.

Before DODGE, Circuit Judge, and ALDRICH and BROWN, District Judges.

PER CURIAM. The four alien Chinese, on whose behalf the appellee's petition for habeas corpus was brought, were held in custody by the immigration commissioner at Boston. On habeas corpus the Circuit Court discharged them, because the commissioner's only authority for holding them was a warrant issued by the Department of Commerce and Labor, under Immigration Act Feb. 20, 1907, c. 1134, 34 Stat. 898 (U. S. Comp. St. Supp. 1911, p. 499). The court regarded that act inapplicable to their case, and held them entitled to trial under the Chinese Exclusion Acts. Since the commissioner's appeal now before us was taken, the question involved has been settled in his favor by the Supreme Court. U. S. v. Wong You, 223 U. S. 67, 32 Sup. Ct. 195, 56 L. Ed. 354. The Immigration Act of 1907 is there held applicable to Chinese aliens illegally coming to this country, notwithstanding the special acts relating to the exclusion of Chinese. The discharge was therefore erroneous.

*For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

The judgment of the Circuit Court is reversed, and the case remanded to the District Court, with directions to vacate the orders entered October 3, 1910, discharging Wah Gan, Moy Dep, Woy Sang, and Chin Quon, and to remand them to the custody of the commissioner

UNITED STATES LIGHT & HEATING CO. v. SAFETY CAR HEATING & LIGHTING CO.

(Circuit Court of Appeals, Seventh Circuit. October 1, 1912. On Petition for Rehearing, January 8, 1913.)

No. 1,870.

1. PATENTS (§ 328*)-VALIDITY AND INFRINGEMENT-BRUSH MECHANISM FOR DYNAMOS.

The Bliss patent No. 707,754, for a brush mechanism for dynamos, claim 6, which is a broad claim, is void for anticipation in the prior art. Also held not infringed, if conceded validity after the filing of disclaimer in October, 1912.

On Petition for Rehearing.

2. PATENTS (§ 324*)—SUIT for Infringement—REVIEW BY APPELLATE COURT -EFFECT OF DISCLAIMER.

A Circuit Court of Appeals, which had adjudged a claim of a patent invalid, may grant relief to the complainant by authorizing the enforcement of any equities arising out of a disclaimer filed before the issuance of its mandate, intended to avoid the ground of invalidity found.

[Ed. Note. For other cases, see Patents, Cent. Dig. §§ 600-606; Dec. Dig. § 324.*]

Appeal from the Circuit Court of the United States for the Eastern Division of the Northern District of Illinois; Christian C. Kohlsaat, Judge.

Suit in equity by the United States Light & Heating Company against the Safety Car Heating & Lighting Company. Decree for defendant, and complainant appeals. On rehearing. Affirmed. For opinion below, see 191 Fed. 846.

The appellant is complainant below in a bill filed charging infringement of its patent No. 707,754, issued to W. L. Bliss August 26, 1902, for "brush mechanism for dynamos," and the appeal is from a decree dismissing the bill for want of equity. The invention and its use are thus mentioned in the . specifications:

"My invention relates to brush mechanism for dynamos, with the object in view of providing automatically for the constant polarity of a dynamo in whichever direction it may rotate and notwithstanding changes or reversal of the direction of the rotation.

"The invention may be applied to all dynamos the direction of the rotation of which is required to be or liable to be reversed, but the polarity of which is required to be constant; but it is especially applicable to dynamos deriving motion from running-gear of railway vehicles for the purpose of charging storage batteries or furnishing a direct electrical current for the illumination of such vehicles."

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

The drawings exhibited are referred to as follows:

"Figure 1 is a view in vertical section from front to rear through the casing of the dynamo, showing the supports for the rotary armature and commutator and the brush-holder in relation thereto as it appears in use; and Fig. 2 is a transverse section taken on the plane of the line A A of Fig. 1, the front cover of the casing being removed."

The claims are 12 in number, but the charge of infringement is limited to the sixth (and broadest) claim which reads as follows:

"(6) Brush mechanism for dynamos comprising a rotary ring, a stationary ring, a raceway intermediate of the two rings, bearing-balls located in said raceway and serving to hold the rings in rotatable relation with each other, brush-holders carried by the rotary ring and means for limiting the rotatory movement of the said rotary ring, substantially as set forth."

Two defenses are set up: (1) Invalidity of the above claim in suit; and (2) noninfringement thereof under any reasonable interpretation of such claim..

Upon final hearing of the issues before Judge Kohlsaat, his opinion, as filed, sustains the defense of noninfringement. It presents an instructive review, as well, of the patent specifications and of the contentions for and against the validity of the claim relied upon, as follows:

"The patent has 12 claims, of which claim 6 may be termed the broadest. The device is specially applicable to dynamos deriving motion from runninggear of railway vehicles for the purpose of charging storage batteries or furnishing a direct electrical current for the illumination of such vehicles.' The dynamo comprises the casing, the armature structure, including associated armature, shaft and commutator, and brush mechanism. Complainant's counsel claim a brush construction which constitutes a unitary and easily removable device. By the removal of the plate i in the casing, the brush-carrier may be inserted and removed. By means of a removable plate in the bottom of the casing, the brushes may be manipulated and the armature blocked in position, when desirable, in order to remove the hub formed in the casing from the axle pressure. The brush-carrier,' according to the specification, p. 1, line 59, 'consists of an annular inner ring j, upon which are secured and properly insulated therefrom the brush-holder k. The inner ring j has a semicircular groove or ball-race formed on its periphery. The inner ring j is mounted within an outer or stationary ring m, having on its