The District Judge held that the transshipment had not been proven, and that the libelant should recover the invoiced value of the parcel.

Charles H. Tuttle, U. S. Atty., of New York City (William E. Collins, Sp. Asst. U. S. Atty., of New York City, of counsel), for

the United States.

Bigham, Englar & Jones, of New York City (Henry N. Longley and James N. Senecal, both of New York City, of counsel), for appellee.

Before L. HAND and SWAN, Circuit Judges, and CAMPBELL, District Judge.

PER CURIAM. [1] How it can be supposed that the written addendum to the copy of the Morristown's manifest was competent proof of transshipment we do not see. It is urged that it is in the same hand as the signature of the ship's agents at Sydney. We should say not, but we cannot be called on to act as experts in handwriting. Our ruling in The Spica, 289 F. 437, is not to be taken as throwing all rules of evidence to the winds. Nobody knows under what circumstances the addendum was written, who wrote it, what connection he had with the transshipment, whether he had first hand knowledge, or, if not, whether his information was reliable. Again, no excuse is suggested for failing to produce the testimony of someone who did know. It is not to be supposed that evidence of every sort is competent in the admiralty. While the rules are not so strict as elsewhere, we do not expose litigants to proof whose verity is not vouched for by some reasonable assurance. Assuming that the ship's agents supposed the goods to have been transshipped in fact, the libelant had no means of ascertaining the sources of their belief, of checking its reliability by cross-examination, of testing it by an inquiry into how the ship's business was done, and how its records were kept. Even if these

defects in the proof are not absolute, the respondent had over two and a half years to procure better evidence, and does not suggest that it was not available. The hazard of such proof is an insurmountable objection to its receipt.

[2] The interrogatories are equally incompetent. Assuming, but in no sense deciding, that they are the equivalent of discovery in equity, they were the most patent hearsay, and as such would not have been competent even in equity. Clark v. Van Riemsdyk, 9 Cranch, 153, 3 L. Ed. 688; Dutilh v. Cour

sault, Fed. Cas. No. 4,206; Hanchett v. Blair, 100 F. 817 (C. C. A. 9). [3-5] We shall assume without deciding that the limitation clause in the bill of lading was valid. If so, it was a partial defense and must be pleaded; the amendment at the trial exposed the respondent to affirmative matter in reply, and under the circumstances it was not entitled to further delay. We accept the respondent's position that the testimony of Young as to the Morristown's movement was incompetent as hearsay. Nevertheless, delay, as well as departure from the usual course, may be a deviation. Oliver v. Maryland Insurance Co., 7 Cranch, 487, 3 L. Ed. 414; Columbian Ins. Co. v. Catlett, 12 Wheat. 383, 388, 6 L. Ed. 664. The delay in the case at bar, nearly six times the length of the usual voyage, being unexplained, was prima facie a deviation. [6] However, the invoice value of the nails was not the measure of damages.

Decree modified to award full damages in accordance with the rule properly appertaining, and, as modified, affirmed.

METROPOLITAN DEVICE CORPORATION V. WILLIAMSBURG ELECTRIC SUPPLY CO.

Circuit Court of Appeals, Second Circuit. May 2, 1927.

1. Patents

No. 269.

328-956,135, claim 5, for electric cut-out used in connection with meter switch boxes, held valid and infringed.

cut-out used in meter service entrance switch Murray patent, No. 956,135, for electric boxes, held valid and infringed as to claim 5. 2. Patents 328-993,099, for electric meter connection block in meter switch box, held valid and infringed as to claim 3, and not infringed as to claim 6.

Palmer patent, No. 993,099, for electric meter connection block used in meter entrance switch box, held valid and infringed as to claim 3, and held not infringed as to claim 6. 3. Patents 328-1,028,268, claim 4, for case

for electric meter connection blocks, held valid and infringed.

Palmer patent, No. 1,028,268, for case for

electric meter connection blocks, held valid and infringed as to claim 4.

4. Patents 259(1)-Furnishing of part of patented combination, with intent that it shall be assembled and used in the combination, is "infringement."

Where a defendant furnishes one part of a patented combination, intending that it shall

nation.

[Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Infringement.]

5. Patents 328—1,036,317, claim I, for protective casing for electric meter and cut-out devices connected thereto, held invalid for lack of invention.

Palmer patent, No. 1,036,317, claim 1, for a protective casing for electric meter and cutout devices electrically connected thereto, held invalid for lack of invention.

6. Patents 72(5)-That function performed by combination patent may be accomplished by slight modifications of previous apparatus held not to show anticipation.

That the function performed by a combination patent may be accomplished by slight modifications of previous apparatus held not to show anticipation.

Hand, Circuit Judge, dissenting in part.

Appeal from the District Court of the United States for the Eastern District of New York.

Patent infringement suit by the Metropolitan Device Corporation against the Williamsburg Electric Supply Company. Decree for complainant, and defendant appeals. Decree modified.

O. Ellery Edwards, of New York City, for appellant.

D. Anthony Usina, of New York City, for appellee.

Before MANTON, L. HAND, and SWAN, Circuit Judges.

MANTON, Circuit Judge. This suit is upon four patents, all owned by the appellee, and all used in meter service entrance switch boxes sold by it. There are several other pat ented features of the appellee's commercial box, with which we are not here concerned. The appellant makes a switch box which is

claimed to infringe the four patents in suit. The known type of installation before the appellee's was a block carrying the required fuses and cut-out devices, mounted on a wall or similar support, and covered by a box with its lower end open and the meter casing set close up against the end of this box, so as to prevent access to the within instrumentalities. With this old type, the box was opened to change the circuits within. The terminals were arranged so that the connections passed in various ways lengthwise and crosswise of the block. For each different shape of the meter casing, the whole box had

to be changed. The appellee's improved box makes use of the four patents. [1] The Murray patent, No. 956,135, granted April 26, 1910, on an application filed February 3, 1909, provides for an electric cutout, and in construction consists of a stationary removable fuse case, with one of the circuit terminals in the inclosing box brought into electrical connection with the other circuit terminal by means of a sliding block having a handle projection extending through a slot in the cover and operable from the outside; also means are provided in connection with the block for locking the same in position either to close or open the circuit, and the construction is such that, when the block is in circuit closing position, it cannot be removed from the box. Claim 5 alone is in suit. It provides:

"5. In an electric cut-out, a box, two fixed circuit terminals, a fuse case electrically connected to one of said terminals, a sliding member in constant contact with the other of said terminals and movable to make and break circuit to said fuse case, and a locking device for retaining said sliding member in adjusted position."

It thus provides a compact and convenient arrangement within the box of the terminals, the fuse case, and the sliding member constantly connected with one of the terminals, and movable to make and break the circuit to the fuse case; the sliding member, the switch having a provision for locking and the handle of it, which extends outside the box, for operating it from the outside of the box.

On the claim of anticipation, the appellant refers us to the patents to Perkins, 876,910; Johnson, 718,632; Hornsby, 833,327; and Lake, 840,068. Considering them in the inclosing the switch. What is referred to as order named, the Perkins patent has no box bar. There is a guard which overlies a por a box in appellant's argument is but a bus tion only of the switch blades. This is inoperative to prevent access to the terminals when the switch blades are lifted. The patent in suit, on the other hand, at all times incloses everything except the handle, which projects through a slot in the cover. Perkins' fuses are arranged with their terminals between spring fingers extending upward from contact plates which the specification of the patent says are not in contact with the plates. Also, when the switch handle is lifted, the conductors carried thereby are removed from the contacts on the base; the current through the fuse is therefore broken

at that end, the switch plates swing upward by the pivoted right ends of the lever, making a circular sliding contact with the terminals until the plates pass clear above them. There is, therefore, not the constant contact with either terminal.

In Murray's apparatus, the fuse comes at its end terminal at the right constantly connected to the circuit terminal, and has its opposite end in breakable contact with a sliding blade, which in turn makes constant contact with the opposite fixed circuit terminal. The sliding member is in constant contact with the circuit terminal at the left, and makes or breaks contact with the left-hand end of the fuse, and thus causes current to flow through the fuse or break the flow of such current. There is no such constant contact in Perkins'. When the handle is up, the contacts are broken. There is no lock on the Perkins switch, and it was not intended for the same uses as Murray's.

The Johnson patent is for a distribution panel by which two bus bars are connected at will to one or more branch circuits. The distributing boxes are different from meter boxes for entrance service. The lack of a lock and of a fuse case with end terminals marks the difference between a distributing box and meter service entrance switch boxes. Another difference is that Johnson's box can

not be locked without interfering with the operating of the switches. The handle of the switches swings up above the lever of the box cover, and the handles are entirely inclosed within the box. This box cannot be locked and operated in the way of the Murray box. It was this difference that made Murray's box useful in connection with the meter service entrance switch boxes. It has a capability of shifting the switch from one position to another by a handle projecting on the outside of the box and locking the switch in the desired position, so that the customer cannot change it, and so that he cannot use any current when the switch is open.

The Hornsby patent shows a distributing box without means for operating the switch from the outside, and with no means for locking the switches in their adjusted position. While he shows a lock in his drawing, he does not refer to it in his specification, and without such no function is described. The box must be opened before the switches can be swung out. It is apparent that it was not adapted to be used as a meter service box.

The Lake patent is for a distributing box with an extra meter space within the same

box. A panel board is shown, with eight different meters, all mounted in the same box. The box must be open to read in one of these meters. It lacks the fuse cases electrically connected as described, and it lacks the lock for the switch. There is no lock for the switches, and their handles do not project through the wall of the box, so that they can be operated, or locked and unlocked, without opening the box.

Murray provides a switch box for the meter service line, with provisions for a nonserving lock by which the utility companies could, at any time, prevent customers connecting their service lines to the supply mains. These distributing boxes, referred to as prior art, are provided where it is desired to supply a number of branch circuits from a single supply circuit, in which case the branch circuits, being of smaller capacity than the main circuit, which it supplies, it is necessary to supply fuses in order to protect the small branches. They are a different class of devices and for different service.

The appellant has copied the appellee's electric cut-out and the box. It has an open box, in which there are two fixed circuit terminals, as provided for in Murray's patent. It has a fuse case, which is electrically connected to the terminal, and a switch blade, which is pivoted on its lower end, so as to be in constant contact with the other of the terminals. It must be movable to make and break the circuit to the fuse case. It may be lifted by an external handle to break the leads up through the meter and then down circuit at its upper end, whence a conductor to the fuse case. The locking device for retaining the sliding member in adjusted position is infringed by the appellant's use of a couple of lugs on the right-hand side of the box for locking the operating arm, and consequently the switch blades or sliding members, in adjusted position. The lugs are appertured for the passage of the hasp of a padlock. The testimony is that few of the boxes are actually locked. The companies use the switches in a small percentage of installations. It is immaterial that the lock is used so seldom. All the boxes have locking devices on them, and it has the advantage, as stated in the claim, of providing locking means if wanted. This combination of electric cut-out, thus arranged from the switch box by adaptation to the use referred to, was an improvement over the prior art, and has established a decided step in advance of that which had theretofore been made. This amounts to invention.