The validity of the patent in suit is not here in question. It was sustained by the learned judge of the court below, who, upon the first hearing, held that defendant's machine infringed the first claim of the patent. Upon a rehearing, however, the court was of opinion that defendant's machine did not infringe the patent in suit, for the reason that it did not have means for adjusting the tension of the spring referred to in claim 1, above quoted. The court below, in its opinion delivered after the rehearing, says:

"The patent claims as one of the elements in the combination, 'means for adjusting the tension of the said spring.' The specification shows that the particular means described by the inventor was the screw, h: "The tension of the spring, H, may be increased or diminished by adjusting the screw, h, carried by the bar, G.' Neither this screw nor any equivalent device is to be found in the defendant's machine, but the tension of the springs is adjusted therein by the same means that is used for regulating the distance between the two rollers, namely, by the bolts, e. The defendants have therefore omitted entirely one element of the plaintiff's combination, and accordingly cannot be held to infringe. I think this position is sound, and is supported by the following authorities: Water Meter Co. v. Desper, 101 U. S. 332 [25 L. Ed. 1024]; Wright v. Yuengling, 155 U. S. 47 [15 Sup. Ct. 1, 39 L. Ed. 64]; Pittsburg Meter Co. v. Supply Co. (C. C. A., 3d Circuit) 109 Fed. 644 [48 C. C. A. 580]. As was said in the last-cited case: 'Nothing in the law of patents is better settled than the rule that a claim for a combination is not infringed, if any one of the described or specified elements is omitted without the substitution of any equivalent thereof.'"

We agree with what the learned judge has here said, and think that the complainant below is bound by the limitations imposed by his own language, as used in the first claim of the patent in suit. As said by Mr. Justice Bradley, in delivering the opinion of the Supreme Court, in Water Meter Co. v. Desper, supra:

"It may be observed, before concluding this opinion, that the courts of this country cannot always indulge the same latitude which is exercised by English judges in determining what parts of a machine are or are not material. Our law requires the patentee to specify particularly what he claims to be new, and if he claims a combination of certain elements or parts, we cannot declare that any one of these elements is immaterial. The patentee makes them all material by the restricted form of his claim. We can only decide whether any part omitted by an alleged infringer is supplied by some other device or instrumentality which is its equivalent."

A careful consideration of the device of the patent in suit, convinces us that the element described in the combination of claim 1, to wit, "a spring, H, adapted to bear at each end on the suspended journal bearings; means for adjusting the tension of said spring," was not only made material by its inclusion in the claim and specifications, but is in fact, a material element of the combination constituting the invention claimed. An inspection of the drawings and models. submitted to the court, makes it perfectly manifest that the plate spring, H, the ends of which press upon the journal bearings on either side of the presser-roll in connection with the means for adjusting its pressure, furnished by the screw, h, furnishes a not unimportant part of the machine described in the patent. It must be borne in mind that the journal bearings, holding the ends of the shaft of the presser-roll, may be moved up or down by means of the bolts,

e, and the nuts, e2 and e3, as described in the specifications. This vertical movement enables the operator to regulate the distance between the presser-roll and the grinding-roll, and this regulation may be necessary by reason of the varying size of the materials to pass between the rolls. When the presser-roll has been thus raised or lowered to the distance required from the grinding-roll, it is held down, but yieldingly, by the ends of the plate spring, H. It is apparent, that if this plate spring is fixedly placed, its pressure at the ends on the journal bearings, and hence on the presser-roll, will be increased or diminished as the presser-roll is raised or lowered. It is most important, then, that there should be means for preserving just the pressure required, whether the presser-roll is raised or lowered. This can be accomplished by the means of adjustment provided in the screw, h, passing through the top bar of the frame, with its lower end resting on the middle of the arch of the plate spring, H. Thus, if the material to be treated requires that the presser-roll should be raised to a greater distance from the grinding-roll, in order to pass readily between the two, the raising of the presser-roll against the ends of the spring, H, would increase the pressure. It might, however, be desirable that the actual pressure should remain the same as before the spring is raised, and the means of adjustment supplied by the screw, h, would enable the original pressure to be maintained.

We now come to the consideration of the machine of the defendant below, alleged to infringe the patent in suit. It is admitted that the only difference between the combinations constituting the two machines, is in respect to this plate spring, H, and means for adjusting the same. By referring to the drawings of the defendant's machine, here

with reproduced, it will be seen that the journal bearings of the presserroll may be raised or lowered in the sides of the frame by threaded bolts and nuts similar to the device for that purpose, in the patent in suit, and the distance between the presser-roll and the grinding-roll may be thus increased or diminished at will. As in the patent in suit, the journal bearings are suspended by the bolts referred to, but are free to be moved upwards. There is in each side of the defendant's machine, encircling the bolt, a coiled or helical spring, which furnishes a yielding pressure upon each end of the shaft of the presser-roll. It is apparent, that when the presser-roll is raised for any purpose, the compression of these coiled springs must increase the pressure upon the roll, and so conversely, when the presser-roll is lowered, so as to decrease the distance between it and the grinding-roll, the pressure of the helical spring is decreased. It follows that, in any given required position of the presser-roll, with reference to the grinding-roll, the pressure of these springs can neither be increased nor diminished. To increase the pressure, the presser-roll must be raised, thus abandoning the required position, and conversely, to decrease the pressure, the presser-roll must be lowered, which would again abandon the required position; or, if the two rolls were already so close together that no further approach could be made, no decrease in pressure could be obtained. It is thus seen that the defendant's machine lacks the means of adjusting the pressure of the spring, mentioned in claim 1 of the patent in suit, and particularly set forth by reference to letters H and h, both in the claim and specifications.

It is true, that the function of the two ends of the flat spring, in the machine of the patent in suit, is pressure upon the ends of the shaft of

the presser-roll, and it is also true, that when the presser-roll is raised, without more, this pressure is increased, and when it is lowered, it is decreased. But the essential element in this respect, of the patent in suit, i. e. means for adjusting the pressure, without either raising or lowering the presser-roll, distinguishes this combination from the defendant's device. The screw, h, passing through the transverse top bar of the frame, with its lower end on the top of the plate spring, can increase or diminish the pressure to any desired extent, no matter into what position the presser-roll is raised or lowered. In other words, in defendant's device, the raising or lowering of the presser-roll increases or diminishes the spring pressure, and there is no means for adjusting the pressure thus produced. If it be desirable to raise the presser-roll for any purpose, an increased pressure must be submitted to, for there is no means of restoring it by adjustment to its original energy. Then again, if the presser-roll in defendant's machine is at the distance required for the proper treatment of the feathers passing between them, and increased. spring pressure should be desired, there is no way of obtaining it, except by raising the presser-roll, and thus destroying the desired relative distance of the two rolls from each other. On the other hand, in the machine of the patent in suit, when the presser-roll is at the desired distance from the grinding-roll, the pressure upon it may be increased or diminished without at all changing that distance.

The appellant contends that, inasmuch as the coiled springs of defendant's machine are compressed when the presser-roll is raised, and the tension of the springs thereby increased, and the opposite effect is produced when the roller is lowered, there is present in defendant's machine "a means for adjusting the tension of the springs," within the meaning of the claim. From what has been said, it seems to us clear, that this contention cannot be sustained. To support it would be doing violence to any accepted meaning of the word "adjusting." Adjustment of the tension is just as necessary after the raising or lowering of the presser-roll as before, and in defendant's machine, there is no means for such adjustment. It is not true, therefore, that in defendant's machine, a single element performs the functions of two elements specified in the first claim of complainant's patent.

We are of opinion, therefore, that this means of adjusting pressure, is a necessary element of the combination, as specified in the first claim of the patent in suit, and that the same, or any equivalent thereof, is not found in the alleged infringing machine of the defendant.

The decree of the court below is affirmed.

(130 Fed. 737.)

AMERICAN BONDING CO. OF BALTIMORE v. SPOKANE BUILDING &

LOAN SOC.

(Circuit Court of Appeals, Ninth Circuit. May 2, 1904.)

No. 1,010.

1. FIDELITY INSURANCE - WARRANTIES-BREACH-CORPORATIONS-KNOWLEDGE OF OFFICERS. Under 1 Ballinger's Ann. Codes & St. § 4255, providing that all corporate management shall be vested in a board of trustees, where an application for fidelity insurance by a building and loan association stated that the secretary insured derived his authority from the board of trustees, knowledge on the part of a single officer, trustee, or the president of the association that the secretary was indebted to it at the time the policy was issued could not be imputed to the corporation without proof that the officer's knowledge had been communicated to the board, so as to constitute a breach of a warranty in the policy that the secretary was not indebted to the association at the time of the issuance thereof.

2. SAME-FALSE STATEMENTS-Knowledge.

Where a fidelity bond securing a building and loan association against the embezzlement of its secretary provided that all the representations made by the employer to the surety were warranted by the employer to be true; that the employé had not, to the knowledge of the employer or its officers, been in arrears or a defaulter, and the association stated that its secretary was not at that time in debt to it; that he had property, funds, securities, and valuables on hand to balance his accounts-such statement did not constitute a warranty that the secretary was not indebted to the association at the time as a fact, but only that he was not so indebted, etc., to the knowledge of the association or its officers.

In Error to the Circuit Court of the United States for the Eastern Division of the District of Washington.

This is an action upon a policy of fidelity insurance issued by the American Bonding & Trust Company of Baltimore City to the defendant in error, the Spokane Building & Loan Society, a corporation of Spokane, Wash. The bond was in the sum of $3,000, dated January 17, 1902, and insured the defendant in error against loss through the embezzlement of its secretary, R. L. Bogardus, for a term of one year. After the execution of the policy, the plaintiff in error changed its corporate name to "American Bonding Company of Baltimore." Prior to the delivery of this bond, and before it became effective, the bonding company requested the building and loan society to answer in writing certain interrogatories concerning the risk about to be assumed under the bond. Accompanying these written questions, and as part of the same instrument, which was addressed to the Spokane Building & Loan Society, was the following statement: "An application has been made to this company to issue a bond of security for Mr. R. L. Bogardus as secretary in your service, at Spokane, to the amount of $3,000.00. This company desires to have written answers to the following questions, and these answers will be taken as the basis of the bond if issued." At the foot of this employer's statement was the following agreement: "It is agreed that the above answers are warranted to be true by the obligee, and are to be taken as conditions precedent, and as the basis of the said bond applied for, or any renewal or continuation of the same, that may be issued by The American Bonding & Trust Company of Baltimore City to the undersigned, upon the person above named. Dated at Spokane, Wash., this 13th day of January, 1902. Signature of the Employer Spokane Building & Loan Society. By S. S. Glidden, Prest. Official Capacity. [Seal of Spokane Building & Loan So

1. Fidelity insurance, see note to American Credit Indemnity Co. v. Wood, 19 C. C. A. 273.