27 F.(24) 835

What, if anything, occurred in the meantime, is not disclosed; but on July 20, 1927, counsel for appellant addressed to the Commissioner a brief in the form of a letter, in which he argued that the statements should not be considered, for the reason, among others, that the makers thereof had not been produced for cross-examination. In response the inspector in charge wrote a letter on behalf of the Commissioner, of date August 4, 1927, incidentally negativing the contention that appellant had at either hearing made request for opportunity to crossexamine, and, referring to counsel's letter of July 7, 1926, stated that Lopez had been deported on June 23d, Telles on June 26th, Maria Para on July 17th, all in 1926, and that Mercedes Gonzales had died on December 26, 1926. He further advised that a hearing would be held on August 11th, at which time Helms would be produced for cross-examination. By the cross-examination at this hearing the Helms original statement was so materially qualified that it was left without probative value upon the critical is

Following the reception of the documents, production of the persons alleged to have appellant testified that about 10 days after made the said statements for the purpose of the raid he sold his restaurant business to cross-examination, but such demand was rethe owner of the building and thereafter had fused." Inasmuch as the petition was disno interest, that when papers were served missed on demurrer, this averment must be on him he simply turned them over to the deemed to be true, and, that being the case, owner, and that in fact he did not employ the use of the statements as the basis for the the attorneys who, under the recitals of the warrant was manifestly unfair. For the redecree, put in appearance for him, and that fusal no explanation is offered, and no reahe took no part in the actions. sonable explanation can be conjectured. It is to be inferred that, when the original hearing was had on May 10, 1926, the four persons were either in the actual custody or subject to the control of the immigration officers, and could easily have been produced. [5] Moreover, were it conceded that no formal demand for an opportunity to crossexamine was expressly made at the hearing, we do not think the concession would purge the proceedings of all unfairness. Admittedly appellant objected to the consideration of these statements, and under some general rule of practice before the inspector the alien is discouraged from particularizing his objections or stating the reasons therefor. Counsel for appellant was so admonished again and again in this case. It is further conceded that, as soon as he received the transcript of the proceedings, on July 7, 1926, counsel formally and clearly demanded opportunity to cross-examine. The two really important witnesses were then available one of them at least in the actual custody of the Commissioner, for she was deported and effectually put beyond the reach of cross-examination 10 days later. When the demand of July 7th was received, counsel for appellant should have been promptly advised of the conditions and required forthwith to examine Maria Para, under penalty, in case of delay, of losing the opportunity, and the Gonzales woman should have been produced or reasons given for not doing so. Taking it at its full face value, her statement was highly damaging to appellant; but she was his competitor in business, admittedly had been, if she was not at the time of the raid, practicing prostitution, and it is highly improbable that some of the assertions made in her statement were based on first-hand knowledge. The interests of truth clearly demanded cross-examination, and it should have been invited, not evaded.

sue.

[2] It is virtually conceded for the appellee that, but for the abatement decrees and the ex parte statements of the two women, Maria Para and Mercedes Gonzales, the record is without substantial evidence to support the warrant findings. Manifestly, the decree under the National Prohibition Act is irrelevant. Assuming that the other decree is competent, a question we need not decide, there is no showing of the time when any of the buildings referred to were used for the specified immoral purposes, and no finding or declaration that appellant had knowledge that his restaurant was ever being used for such purposes.

[3, 4] As for the ex parte statements, it is expressly alleged in appellant's amended petition "that petitioner, at the time said statements were introduced, demanded the

Reversed, with directions for further proceedings not inconsistent herewith.

CONCRETE MIXING & CONVEYING CO. v. for a "concrete gun," which consists of a

27 F.(2d) 838

specifications described the apparatus as specially adapted to the manufacture and convection of concrete composition through pipes so as to set quickly upon reaching its destination and form a solid mass of artificial stone, and uncontradicted testimony was given of the successful use of the Smith machine in conveying concrete through a pipe by compressed air. The device contained all the features of the appellant's patent except the nozzle for admission of air near the point of exit.

The Duckham patent of 1875 was for improvements in discharging mud or soil from dredges. The mud was received in tanks capable of being closed air-tight, with the exception of inlets for the compressed air and an outlet for the spoils. In the specifications Duckham said: "I prefer to inject compressed air through a number of nozzles at the bottom of the tank, said nozzles being pointed toward the outlet. By this means the particles are prohibited from settling, and are kept in suspension until the whole is expelled from the tank. Compressed air may, moreover, be admitted into the discharge pipe with the same object." We think it indisputable that Duckham, in prescribing the use of pipes for the admission of compressed air in the tank, the same distributed along the bottom of the tank, and one of them locatable at the exit, presented the use of all that is included in the appellant's combination, save and except the Ubend, an exception which is negligible so far as the present litigation is concerned, and if there is distinction in the fact that Duckham used no air pressure above the contents of the tank, and thus omitted one of the features of the appellant's combination, that feature is also absent from the Hackley combination used by the appellee.

[2] But the appellant asserts that Duckham was working with a material which would flow with facility, and that the nozzles which he used were intended for no other purpose than to stir up the mud in the bottom of the tank. It is true that Duckham was engaged in moving a material quite different from concrete, but that fact is not of importance on a question of anticipation. Concrete Appliances Co. v. Gomery, 269 U. S. 177, 46 S. Ct. 42, 70 L. Ed. 222. In his second patent of December 14, 1885, Duckham says: "The mud or spoil was received directly from the dredging buckets in a tank or tanks, whence it was expelled through outlet pipes by means of compressed air admitted at the upper part of the tank, assisted by compressed air and water injected at the bottom of the

tank to agitate the mud and prevent thick deposit." And if we may refer to the engineering publication, Minutes of the Proceedings of the Institution of Civil Engineers (1887), in evidence here, we find that Duckham stated that "with clay or stiff mud, if the nozzles of the air injection pipes were too small, the compressed air, instead of driving out the material, simply pierced holes through it, escaping through the discharge pipe and carrying along with it all the liquid and thin material in the tanks. This defect was easily rectified by rearranging and increasing the size of the large injection nozzles, and the apparatus now gives most satisfactory results."

It is assigned as error that the trial court found that Leake had made the invention in issue prior to the date of McMichael's application. In the opinion of the trial court it is said: "Prior to McMichael, Leake had conceived the idea, and in 1905 in New Orleans had publicly and successfully employed it in concrete building operations, for, despite Leake's reluctance to testify against his assignee, the plaintiff, the evidence, in quality and quantity, inspires confidence and constrains conviction of the truth of the fact, and beyond reasonable doubt." The McMichael application was filed January 14, 1907, and nine months later on October 7, 1907, was filed Leake's application, which presents everything contained in the McMichael application with the exception of the U-bend. Leake said: "The object of my invention is to provide a method and apparatus for preparing a concrete mixture and delivering it while in a plastic condition to the place where it is to be utilized. Another object of my invention is to move plastic concrete from one place to another by means of air pressure."

On May 12, 1909, interference was declared between McMichael and Leake and Wm. W. Darley, who had applied for a patent on "apparatus for handling ashes and other materials." Leake and Darley each filed an affidavit setting forth their respective dates of conception and reduction to practice. Darley was dismissed from the interference, as being found subsequent in time to the others. Leake's affidavit stated that he "conceived the invention set forth in the declaration of interference on or about the 1st day of February, 1905; that he first made drawings of the invention on or about the 1st day of March, 1905, and first explained the invention to others on or about the 1st day of June, 1905; that he first embodied his invention in a full-sized machine which

27 F.(2d) 838

charge duct "serves the double function of preventing choking in the entrance to the delivery pipe and of supplying air under pressure in sharp jets directly to the delivery pipe itself."

The slug theory was obviously adopted, from expressions found in Leake's application, in which he proposed the use of a combination consisting of two tanks discharging into a single conduit alternately, by means of which the main body of concrete "can be detached in portions and blown into the conduit and driven along the same." Such a result might be accomplished by the use of his combination, but it is not apparent that any slug action occurs in the use of either the McMichael or the Hackley combination. In neither is there intermittent pressure, or "sharp jets" of air, and in both there must necessarily be exerted a steady and continuous force from the upper and the lower air nozzles, combining to drive forward the concrete and deliver it in a practically unbroken stream, and if, indeed, a temporary obstruction of material at the exit should occur, it is not believed that its release would result in a slug action, or a constantly intermittent propulsion of concrete, or that, if such an intermittent action could in practice be accomplished, any advantage would thereby be attained. The decided weight of the testimony is to the contrary.

It is stated in the brief of appellant's counsel that the appellee's engineer, Hackley, admitted that the appellant's apparatus "operates on the slug principle." We do not so understand Hackley's testimony. What he said was that the air mixes with the concrete, and as such prevents it from discharging as a solid mass, and that "the mass is broken up into portions, which are driven ahead under high velocity by the air discharging from the pipe 34, this being of considerable importance, as it positively prevents choking or blocking up of the apparatus." Hackley was speaking only of such breaking up of the discharging column as resulted from the admixture of air and concrete in the discharge pipe. He testified to having had experience in using the appellant's combination, and that in so using it the concrete issued in a continuous stream, and that in the use of his own device the concrete came out in a continuous stream mixed with the air; that the speed of the discharge thereof could be controlled by the operation of the valves, and in use was so controlled as to make it as slow as possible, for the purpose of preventing separation of the concrete and to prevent wear on the pipes; and that 27 F.(2d)-53%

.

when the concrete is discharged it flows by gravity down the sides. Brock, a witness for the appellant, testified that in the Skagit tunnel the concrete, when it came out through the 8-inch discharge pipe, "flowed down gently like over both sides." And such was the testimony of all the witnesses who observed the operation of the device in the Skagit tunnel.

In fact, there is but one witness for the slug theory, Ray, a consulting engineer and patent expert. He testified, in answer to the question: "How many slugs moved in a second?" "There may be 20 or 30 come out in a second. Then there will be an elapse of a second or two, when none will pass through. Then there will generally be a group of two or more in the next quarter second. It is impossible for the naked eye to detect the individual slugs of material issuing from the discharge end of the duct." Wilkins, an electrical engineer, an expert, testified on behalf of the appellee that he was familiar with the apparatus in controversy, and had made tests in its operation; that in the use thereof there were no slugs or plugs, such as Ray had testified to; that it was a continuous flow of the mixture of air and concrete, and that it issued from the discharge pipe without spurts or dumps. The court below credited the testimony of Wilkins as against Ray, and we think the court was supported by the overwhelming weight of the testimony.

We think that the slug theory, when all is said, has no bearing upon the merits of the present controversy, for, whether or not the appellant's apparatus operated to deliver concrete in slugs or sections, it is very clear that the Hackley apparatus operates in delivering a constant stream of concrete, interrupted only so far as it is interfered with by the air which accompanies it through the discharge pipe. Hackley used a horizontal tank, and in his specifications he said: "With the present apparatus the concrete does not tend to pack or bridge around the nozzle, as is the case where vertical tanks are used. The mass of concrete which any one air stream is compelled to move is relatively small and unpacked, and therefore the device operates quickly and easily, and without danger of becoming clogged." The decisions in Concrete Mixing & Conveying Co. v. Ulen Contracting Corp. (D. C.) 12 F. (2d) 929, and Concrete Mixing & Conveying Co. V. Powers-Kennedy Co. (C. C. A.) 27 F. (2d) 668, relied upon by the appellant, were based on records widely different from that in the case at bar.

The decree is affirmed.