indicated that the defendants had the liquor on hand to be sold to any one who applied for it then they may be said to have been engaged in the business, although but one act of selling has been proved. On the other hand, if they permitted a neighbor or friend to have a part of the supply of whisky which they had on hand and did this in a spirit of accommodation, they could not be said to be engaged in the business, even if they received money for this accommodation." U. S. Rennecke (D. C.) 28 F. 847.

[4] The whole subject was thoroughly reviewed by the Circuit Court of Appeals for the Sixth Circuit in Bailey v. U. S., 259 F. 88, where it was held that a single sale is to be interpreted in the light of all the circumstances, and it may vary from being little or no evidence up to the point of being convincing that the seller is carrying on the business and that, in order to convict, the jury must be satisfied that the defendant had liquor on hand, or was ready or able to procure it in either case for the purpose of selling some or all of it to such persons as he might from time to time find or conclude to accept as customers. Of course, as Judge Simonton pointed out in the case already cited, a defendant may be convicted of carrying on the business of a retail liquor dealer, although no proof is or could be given that he had a barroom or any of the usual appliances of retail liquor dealers. He stated that the favorite mode of carrying on the business without paying the special tax in vogue in the 80's of the last century, was going about the country with a wagon and selling whisky out of a tin cup or by the bottle; that is to say to be a peripatetic peddler of whisky is as clear a violation of the revenue act as it is to sell the same article over a bar.

[5] In the instant case the government presented evidence which, if believed by the jury, would have justified a finding that the defendant was carrying on the business of peddling whisky. Much of the government's testimony was flatly contradicted by the witnesses offered on his behalf. How much of it the jury accepted as true is impossible to say. They may have thought that all that was proved against him beyond a reasonable doubt was a single sale of liquor and that such sale was not of all he then had. With the proof standing as stated, the learned

judge told the jury, "Where there is one sale and any evidence of liquor beyond that, why then you can believe and find the man was carrying on a retail liquor business." From this statement the jury may well have concluded that they should find the defendant guilty if the testimony convinced them that he had made the sale, and, after making it, still had some liquor left.

From what has already been said that was not in our view a correct conclusion of law. Under the circumstances of this case, the failure of the judge more accurately to define the essential elements of the offense may well have been highly prejudicial to the defendant.

It follows that the judgment below must be reversed, and the case remanded for a new trial. Reversed.

Fred JORDAN, Plaintiff in Error, v. The UNITED STATES of America, Defendant in Error.

(Circuit Court of Appeals, Fourth Circuit. June 22, 1925.)

No. 2380.

In Error to the District Court of the United States for the Southern District of West Virgnia, at Charleston; George W. McClintic, Judge.

J. Raymond Gordon, of Charleston, W. Va., for plaintiff in error.

Elliott Northcutt, U. S. Atty., of Huntington, W. Va., and B. J. Pettigrew, Asst. U. S. Atty., of Charleston, W. Va.

Before WADDILL and ROSE, Circuit

Judges, and WEBB, District Judge.

The

ROSE, Circuit Judge. The plaintiff in error, defendant below, was found guilty of carrying on the business of a retail liquor dealer without having paid the tax. definition of a retail liquor dealer, given by the learned court in its instruction to the jury, was substantially the same as that which we were compelled to hold erroneous in the case of Rood v. United States, 7 F. (2d) 45, the opinion of which is handed down simultaneously with this and the judgment below must, as in that case, be reversed, and the case remanded for a new trial.

Reversed.

LINE MATERIAL CO. v. BRADY ELECTRIC MFG. CO.

(Circuit Court of Appeals, Second Circuit. April 6, 1925.)

No. 275.

1. Patents 16, 37-Advantages and success held to indicate novelty and invention.

That insulator fixture in suit is smaller and costs less to manufacture than devices theretofore used, is easier to attach and reduces liability of breakage of attached electric wire to minimum, and has been successfully received in trade, held to indicate novelty and invention. 2. Patents 328-930,527, for automatically adjustable insulator house fixture, held valid and infringed,

Burge patent, No. 930,527, for an automatically adjustable insulator house fixture, used in connection with the transmission of electrical energy for lighting, telephone, and power requirements, held valid and infringed. 3. Patents 66-What acts do not constitute "anticipation" stated.

"Anticipation" cannot be made out by selecting parts of one patent and part of another, and still a part of a third, to build up a hypothetical construction, which may answer the combination of the claims of the patent.

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

4. Patents 25-"Aggregation" defined.

"Aggregation" means that the elements of a claimed combination are incapable of co-operation to produce a unitary result, and in its true sense does not need prior art patents to support it, because obviously, if there is no cooperation between the parts, as claimed, there is no patentable combination.

[Ed. Note. For other definitions, see Words and Phrases, Aggregation.]

5. Patents 236-Making element of two separate pieces, rather than a single piece, does not avoid infringement, where the two separate pieces performed the same function as a single piece.

Making an element of two separate pieces, rather than a single piece, does not avoid infringement, where the two separate pieces perform the same function as a single piece; nor does the use of a single screw for attaching the device, in place of two or more, repel the charge of infringement.

Appeal from the District Court of the United States for the District of Connecti

cut.

Suit by the Line Material Company against the Brady Electric Manufacturing Company for infringement of letters patent No. 930,527. Decree for plaintiff (299 F. 822), and defendant appeals. Affirmed.

George W. Brady, of New Britain, Conn., and John W. Joy, of Hartford, Conn., for appellant.

Louis O. French and Louis Quarles, both of Milwaukee, Wis., and Bristol & White, of New Haven, Conn., for appellee.

Before HOUGH, MANTON, and HAND, Circuit Judges.

MANTON, Circuit Judge. The Burge patent, No. 930,527, was issued August 10, 1909, on an application filed March 17, 1909, and is for an automatically adjustable insulator house fixture. The transmission of electrical energy for lighting, telephone, and power requirements is in great part conveyed by overhead service lines. At intervals, these lines are tapped by feed lines leading to the house or building to be supplied with current. This is accomplished by a service line to the house or building, and requires a fixture to be attached to the building. Under the patent in suit, a new device is provided for attachment to the house. Fixtures for such purpose must be able to withstand severe strain, because the drop wire spans are sometimes of considerable length, so that the weight of the wire line is considerable, and it is further increased when coated with snow, sleet, or ice, and such fixtures must be able to withstand the stresses thus encountered, and the connection between the fixtures and the house must be such as to reduce the strain on the fastening means. It is necessary that the fixture should take care of insulated wires generally, so as to prevent the danger of damage to the wire itself, and yet permit of a relatively loose swinging wire to relieve the wire of internal stresses, to which it would be subject were it drawn up taut.

use.

Before the appearance of the device made under the patent in suit, insulator brackets were of the fixed type and had been long in The so-called fixed type theretofore used in the art was a rigid wooden bracket, with insulator or a bracket made with malleable iron. In such type, the wear due to the swinging of the wire had to be taken at the point of attachment of the wire to the insulator, sometimes causing snapping and breaking of the wire at this point, and, since the insulator was fixed or unadjustable in many instances, the strain produced upon the bracket by the wire, weighted with snow, sleet, or ice, would cause the bracket to be torn from the house or support, or to break off near its point of connection with the house or other support.

The patent in suit provides for a structure which embodies a plate provided with an eye to receive a clevis, the plate having holes

ter hook construction, consisting of sister hooks pivoted, and the novel feature of the invention is the use of a ring pivot to hold the hooks together. There is no insulator shown, nor is it associated with a clevis, and no means for connecting a clevis to the side of the house.

[3] The patents to Lien, No. 454,486, and Elliott, No. 476,193, we think, are not indicative of any prior conception. None of these anticipated the combination of elements as found in the Burge claims. They were never designed or intended for use, nor could they be used, in connection with long wires at the drop end of the building. They do not anticipate the patent in suit. Topliff, v. Topliff, 145 U. S. 156, 12 S. Ct. 825, 36 L. Ed. 658; Smith v. Peck, etc. (C. C. A.) 262 F. 415. Anticipation cannot be made out by selecting part of one patent and part of another, and still a part of a third, to build up a hypothetical construction, which may answer the combination of the claims of the patent (Barber v. Otis Motor Sales, 240 F. 726, 153 C. C. A. 521.

Prior use is referred to in the ship chandlery art, but this is not an art analogous to the art in which the patentee was working, and the devices referred to could not, without modification, be made to accomplish the function and purpose this inventor had in mind. They lack certain of the essential elements of the patent in suit. None of the devices were ever intended, nor could they be used, for accomplishing the functions of the Burge invention. What was accomplished is not a mere juxtaposition of elements, but it is a co-operative arrangement of elements, so as to bring about a new and useful result over the fixed type of rigid bracket with insulator, and what has been accomplished has been due to this novel combination.

[4] Nor may it be successfully argued that what the patentee did was a mere aggregation. Aggregation means that the elements of a claimed combination are inca pable of co-operation to produce a unitary result, and in its true sense does not need prior art patents to support it, because obviously, if there is no co-operation between the parts, as claimed, there is no patentable combination. The argument here is that the elements of the patent in suit are separately laid in the different patents, and that, this being so, there was no invention in bringing these elements together in the claimed combination. Where patents have failed because of aggregation, the controlling fac

tor has been that there was no combination in fact. But, in the structure made under the patent here, there was a new combination of elements, all of which co-operate when the device is in service. The plate forms a connection between the clevis and its fastening means, and, if it were left off, there would be no connection for the clevis with the house, and no means of relieving the fastening means of strain. The clevis in turn forms a support for the pin on which the insulator is mounted, and, were it left out, the insulator would not swing or turn. The plate, clevis, and pin all co-operate to form a supporting means for the insulator, of such a character that the insulator can move into the line of strain, and can move relative to its supporting pin to relieve the wire of wear. It further relieves of wear, by the taking up of the wear between the clevis and the eye, and the pull of the wire is transmitted to the plate in such a way as to relieve the supporting means and the fastening means of objectionable strains. Nothing in the disclosures of the prior patent shows contemplation of any such co-operation of other elements.

We do not think the line conductor supports referred to in General El. Co. v. Ohio Co. (C. C. A.) 277 F. 917, in any way changes this result. The devices there shown are not of the type of this invention. The line wires are not dead-ended on the insulators, and the insulators are connected together by flexible cables, and the anchorages are different. The patents involved in that case were not offered in evidence, nor considered by the court below.

The appellant, in its device, provides for sister hooks in constructing its clevis, and it appears that a single screw will hold the devices of the patent in suit. The claims of the patent in suit do not include two screws, but simply state that the plate has holes or slots suitable for the reception of screws. Infringement cannot be evaded by the use of a single screw for attaching the plate, since the sheet metal plate is equivalent to the plate specified in the claim. The file wrapper indicates that the allowance of the claims here in suit did not depend upon any essential inclusion of a plurality of holes. When the two sister hooks are connected in assembled relation relative to the plate of the defendant's device, they function together and then act as a clevis.

[5] Infringement is not avoided by making an element of two separate pieces, rather than a single piece, where the two sepa