Yim, against Anna C. M. Tillinghast, United States Commissioner of Immigration. From a decree or order denying the writ, petitioner appeals. Affirmed.

Everett Flint Damon and Walter Bates Farr, both of Boston, Mass., for appellant.

Frederick H. Tarr, U. S. Atty., of Gloucester, Mass., and John W. Schenck, Asst. U. S. Atty., of Boston, Mass., for appellee.

Yen, and that his application was denied; that the file record containing his testimony at that time was introduced in evidence, and shows certain discrepancies between his testimony and that of the applicant, who

claimed him as a brother.

It is contended that the reception and use

BINGHAM, Circuit Judge. This is an appeal from a decree or order of the District Court for Massachusetts dismissing a petition for a writ of habeas corpus in an immigration case, and denying the writ for want of jurisdiction.

The errors assigned are: (1) That the action of the immigration authorities in denying admission to the applicant was wanting in due process of law; and (2) that their action was arbitrary and unfair in that they received in evidence a file record of the department in another case, also made use of a letter written by the applicant to the alleged father, and otherwise.

An examination of the record discloses that the applicant was accorded all the rights and privileges required by the statute regulating the procedure and hearings before the Department of Labor upon the application of an alien for admission to the country. This disposes of the first assignment.

It appears that the applicant, Soo Hoo Do Yim, at the time of his arrival, was 20 years old; that he arrived at the port of Boston June 23, 1926; that he was examined before the Board of Special Inquiry in the last part of July of that year; that the witnesses at the hearing before the board were the applicant, his alleged father, Soo Hoo Yen, and an identifying witness, Soo Hoo Bing Sin, a distant relative; that the applicant and the alleged father were examined at length and with great particularity as to family, home village, its various inhabitants, their names, ages, and the houses where they dwelt. Certain discrepancies appear in the testimony given by the father and son at the hearing, and in statements of the father, contained in the file records of the department, made by him at examinations held in 1911 and 1913, upon his departure to and return from China. It also appears that in 1921 one Soo Hoo Do Hong applied for admission at the port of Boston as the son of Soo Hoo

tion room, in which he undertook to inform the alleged father as to his own testimony on several points and to tell him how to answer certain questions, was unfair and indicated bias and prejudice.

The applicant testified that he was born November 10, 1905, that he had four brothers; that his oldest brother, Soo Hoo Do Hong, was born in October, 1896, and was the son of Soo Hoo Yen by his first wife; that he himself and his three younger brothers were children of Soo Hoo Yen by a second wife; that his brother Soo Hoo Do Young was born November 16, 1912; that his brother Soo Hoo Do Chong was born March 1, 1914; and that his brother Soo Hoo Do Wing was born December 30, 1925.

The alleged father, on departing for China in 1911, testified at New York that he had but one son, Soo Hoo Do Tung, and, on returning from China in 1913, testified at San Francisco that he then had two sons, who were Soo Hoo Do Tung and Soo Hoo Do Young.

The applicant, when confronted with these statements of the alleged father, testified that he did not know why his father made these statements; that his father had two sons in 1911, three sons in 1913, and that he never had a brother, Soo Hoo Do Tung, or Do Teung; and that he, the applicant, was never known or called by either name.

The alleged father, testifying at Boston in 1921, stated the officers at San Francisco and New York made mistakes; that their records should have shown the name to be Soo Hoo Do Yim. But at the hearing of this case in 1926 he stated that in 1913 he gave the applicant's name at San Francisco as Soo Hoo Do Tung, because the applicant's mother had given him that name at birth, while he was in the United States; that he had intended to name the applicant Soo Hoo Do Yim; that about 1916 he wrote his wife, telling her to change the applicant's name to Soo Hoo Do Yim; that in 1916 the wife acknowledged receipt of his instructions, stating that she had told the applicant that his

interlocutory decree adjudging infringement by the appellant of claims 9 to 17, inclusive, of letters patent No. 1,518,067, issued to the appellee on December 2, 1924, for an "electric heater." The said heater consists of an outer metallic grill plate which sets against and covers an opening in the wall, a heating element behind the grill, consisting of one or more hollow vertically disposed refractory cores on which resistent wires are arranged, a reflector or inner shell of less area than the grill, and a back plate or outer shell, spaced from the reflector, so as to form an air chamber all around the reflector. Claim 9 is as follows:

"An electric heater, comprising a vertically disposed hollow heating element, a base on which said element is mounted, the base being provided with an aperture registering with the passage in the hollow heating element, a plate behind said heating element, and a back plate at the top and bottom to permit the flow of air through the space between the plate and the back plate."

The appellant was making and selling heaters under the patent issued to Wm. W. Weir, No. 1,494,654.

The appellee's application was pending in the Patent Office from July 17, 1922, to December 2, 1924. The Weir application was pending from April 11, 1923, to May 20, 1924. It thus appears that both applications were pending simultaneously before the Patent Office, and for a period of 13 months, and it also appears that both applicants were represented by the same attorneys. At no point in the proceedings does it appear to have occurred to the officials of the Patent Office or to the attorneys who represented the applicants that Weir's claims were in conflict with those of the appellee. But it does appear that the claims of the appellee's application met with repeated objection and rejection by the Patent Office officials on reference to antecedent patents, notably the patent to Sharpe, No. 1,064,258, of June 10, 1913, and the patent to Kuhn, No. 1,096,927, of May 19, 1914. Sharpe in his specifications claimed that he effected heating both by circulation and by radiation. His heater is a wall heater, and contains a flue between the outer shell and the inner plate, open at the top and bottom for the passage of air. Reflection takes place from the polished surface of the reflection plate, and convection takes place through a rear flue or space formed by the reflection plate and the rear of the box. Kuhn's heater is also an electric wall heater, quite similar to that of Sharpe, containing a reflector plate,

which is spaced from the outer shell, so as to form a flue open above and below for the passage of air.

The appellee distinguished his device from that of Sharpe by pointing to the fact that Sharpe's reflecting plate extended upward only for about four-fifths of the distance between the base and the top of the heater, and did not incline forward, and he stressed the fact that a strong current of air through the appellee's heater was secured by curving the back wall of the outer shell forward "in a smooth curve to the grill, so that the air will travel rapidly over the surface." He said that in the Kuhn heater the upper end of the outer shell was flat, so that air would become pocketed, and he pointed also to the fact that Kuhn did not have a hollow electric heating element through which a draft of air was induced. But we find that the use of a vertical hollow heating element open at the top and bottom is disclosed in one of the forms of heaters manufactured and sold by the appellant, prior to the appellee's invention. It was an electrical heater, which contained all the essential elements of the appellee's heater and was adapted to be placed in a cavity in a wall and to heat a room both by radiation and convection. It had a metallic grill, a metallic back pan, a copper reflector spaced from the back pan, and it had two electrical heating cores in some instances placed vertically and wound with resistance wire. A vertical open hollow heating element is shown also in the patent to Bowen, No. 512,797, issued January 6, 1894, in the patent to Perkins and Jones, No. 483,940, issued October 4, 1892, in the patent to Scott, No. 1,401,447, issued December 27, 1921, and in the patent to Muir, No. 1,418,667, issued June 6, 1922.

In brief, all the elements of the appellee's combination are found in the prior art. What he added was a skillful arrangement of the elements, an increase in the size and number of members of the hollow electric heating element, an improvement in the form of the reflector and the back plate, all of which conduced to the efficiency of his heater, made it acceptable to the trade, and resulted in its extensive adoption for heating purposes. But in view of the prior art it must be held that he is entitled to but a narrow construction of his claims, and is substantially limited to his details of construction. [1] The grant of letters patent to Weir under the circumstances above indicated creates the presumption that his heater does not infringe any of the appellee's claims. In Boyd v. Janesville Hay Tool Co., 158 U. S. 260,

"As both applications were pending in the Patent Office at the same time, and as the respective letters were granted, it is obvious that it must have been the judgment of the officials that there was no occasion for an interference, and that there were features which distinguished one invention from the other. In Pavement Co. v. City of Elizabeth, 4 Fish. Pat. Cas. 189, Fed. Cas. No. 312, Mr. Justice Strong said: "The grant of letters patent was virtually a decision of the Patent Office that there is a substantial difference between the inventions. It raises the presumption that according to the claims of the latter patentees this invention is not an infringement of the earlier patent.' It would also seem to be evident that as the purpose of the invention was the same, and as the principal parts of the respective machines described were substantially similar, it was also the judgment of the office that the distinguishing features were to be found in some of the smaller and perhaps less important devices described and claimed."

Among the cases so holding are Miller v. Eagle Manufacturing Co., 151 U. S. 186, 208, 14 S. Ct. 310, 38 L. Ed. 121; Kokomo Fence Machine Co. v. Kitselman, 189 U. S. 8, 23, 23 S. Ct. 521, 47 L. Ed. 689; Fore Electric Mfg. Co. v. St. Louis Electrical Works (C. C. A.) 280 F. 49, 52; Leader Plow Co. v. Bridgewater Plow Co. (C. C. A.) 237 F. 376, 380; Century Electric Co. v. Westinghouse E. & Mfg. Co. (C. C. A.) 191 F. 350, 363; Ransome v. Hyatt (C. C. A.) 69 F. 148. There is no room here for the recognition of the exception to the rule that where a patentee has made a primary invention of a machine or a combination which accomplishes a result not before produced by such a combination or machine, the presumption may arise that a subsequent patent for an invention of the same nature is for a subordinate invention, as was held by this court in Bake-Rite Mfg. Co. v. Tomlinson, 16 F. (2d) 556.

[2] The presumption that the Weir heater does not infringe is, we think, sustained by the evidence. His heater has a grill behind which is a hollow rectangular tile or fire brick set in a metal box. The front wall of the tile is arched outwardly and is grooved horizontally. In the grooves, which are ten in number, are inserted heating coils which extend across the face of the tile. In the tile between its front wall and its back are four vertical open spaces or flues, 34 inches wide and varying in depth from half an inch to an

for the passage of air. The reflector which is found in the appellee's patent, and is made a part of each of the claims which are in controversy here is absent from the appellant's heater.

The appellee's contention to the contrary cannot be sustained. He asserts that the upper edge of each groove across the face of the tile is in effect a reflector, and he refers to Weir's specifications in which it was said that the "upper wall of each groove acts as a reflector, reflecting rays of heat forwardly." But, obviously, Weir meant that heat was radiated forward from the groove, for elsewhere in the specifications he adverts to the white clay composition of the tile, which he says is "highly refractory." And it seems true, as one witness testified, that no appreciable reflection of heat can take place, and that "it must all be radiation from the face of the block." But, if there is a small degree of reflection of heat from the narrow upper walls of the grooves, it is obvious that Weir's heater does not use such a reflector as is called for in the appellee's claims. Nor does Weir's heater have a rear flue. The narrow space which is left between the asbestos strips inserted between the rear wall of the tile and the box in which it is mounted is not a flue for the convection of heat, and obviously is not adapted or intended to operate as such. These differences of construction are sufficient to avoid infringement.

The decree is reversed, and the cause is remanded, with instruction to dismiss the bill.

BRENNER v. SAWYER.

In re BRENNER & BRODY SHOE CO. Circuit Court of Appeals, First Circuit. February 20, 1928.

No. 2188.

Bankruptcy 288 (8)-Referee held without power to avoid preferences in summary proceedings on petition filed by receivers before adjudication (Bankr. Act, § 2 (3); 11 USCA § 11).

Power to avoid preferences is not vested in the referee in summary proceedings on petition filed before adjudication by receivers appointed under Bankruptcy Act, § 2 (3), being 11 USCA § 11.

Appeal from the District Court of the United States for the District of Massachusetts; James Arnold Lowell, Judge.

In the matter of the Brenner & Brody Shoe Company, bankrupt; Charles E. Sawyer, trustee. Louis E. Brenner appeals from a decree of the District Court affirming an order of the referee. Reversed and remanded.

Mark M. Horblit, of Boston, Mass. (Jacob Wasserman and Horblit & Wasserman, all of Boston, Mass., on the brief), pellant.

for ap

ings, we think this petition should be allowed, to the extent of accepting this summary and transcript as part of the record. The proceedings, already unwarrantably delayed, should not be further prolonged by sending the case back to amend the record in accord

Alexander G. Gould, of Boston, Mass. (Harry Shapiro, of Boston, Mass., on the brief), for appellee.

ANDERSON, Circuit Judge. This is an appeal from a decree of the District Court, affirming an order of the referee that the appellant turn over to the receivers of the Brenner & Brody Shoe Company $9,242.91. The proceedings were wholly irregular and cannot be sustained.

On May 28, 1927, an involuntary petition was filed against the Shoe Company. On June 10, 1927, two receivers were appointed, by decree not in the record; there is nothing to indicate that the receivers were more than mere custodians (General Order XI) appointed under section 2 (3) of the Bankruptcy Act (11 USCA § 11) as "absolutely necessary for the preservation of the estate." On June 29, 1927, the receivers filed a petition, alleging that Brenner, an officer of the corporation, had "in his possession and under his control about $10,000 belonging to the aforesaid bankrupt," and seeking a summary order for its delivery to the receivers. The referee's jurisdiction was duly challenged on the ground that the petition involved questions of preferential payments, not subject to summary process. After hearing, the referee, on July 18, 1927, ordered $9,242.71 paid over within 10 days.

On petition for review, filed July 26, 1927, the referee on August 20, 1927, filed his certificate, not including the stenographic report of the hearing before him. On October 4, 1927, appellant moved to recommit for a transcript of the testimony. This motion was denied by the District Court on October 10th, and the order to turn over $9,242.71 then affirmed. In this court appellant has filed a verified petition for diminution of the record, containing a summary and transcript of the evidence before the referee, conceded by appellee's counsel to be substantially correct. While the referee's certificate contains enough to show fatal error in his proceed

the proceedings had been otherwise lawful. In re Wilcox (C. C. A.) 109 F. 628; Todd v. Bradley, 99 Conn. 207, 122 A. 68; Breckons v. Snyder, 211 Pa. 176, 60 A. 575.

While the record does not show it, we assume from the briefs that adjudication took place on July 7, 1927, and that Sawyer, one of the receivers, was duly elected trustee; he is now defending in this appeal.

The main question is whether this sum of $9,242.71 was held adversely to the bankrupt estate, or under claims merely colorable. Harrison v. Chamberlin, 271 U. S. 191, 193, 194, 46 S. Ct. 467, 70 L. Ed. 897; May v. Henderson, 268 U. S. 111, 115, 45 S. Ct. 456, 69 L. Ed. 870. If there be a real and substantial adverse claim, the merits can be determined only on a plenary suit. The referee's own certificate shows that in the instant case the claims were not merely colorable. He reports that Brenner owned about 50 per cent. of the capital stock of the corporation and was president of it and in charge, generally, of its business; that on May 15, 1927, Brenner took four checks sent by debtors of the company, aggregating $9,242.71, deposited $7,342.71 in a New Hampshire bank in the name of the corporation, and before May 25th paid $2,745 to one Bacon and to his sister-in-law, both alleged creditors of the corporation, keeping the rest himself, because, as he testified, "the corporation owed me that." The referee then states some of the details of the alleged indebtedness to Brenner; but he does not find that either this alleged debt, nor those of Bacon and Brenner's sister-in-law, were not legally outstanding. It follows that his conclusion that this sum of $9,242.71 was "taken without right or authority" simply means that Brenner had no right to prefer himself and two other creditors, and that these (perhaps voidable) preferences can be determined by summary proceedings on a petition by receivers, filed before adjudication, in a case in which a com