10 F.(2d) 91 $4,000 be turned over to the trustee. The bankrupt made no attempt to review the order, and a contempt proceeding followed. The District Judge held that the failure to appeal from a turn-over order makes the order conclusive, unless the bankrupt gives an adequate explanation of what has become of the money or property since the order was made. And he refused to grant an order of commitment and said: "Here no money which has not been accounted for has been directly and reliably traced to the possession of the bankrupt and the order of the referee required him to pay to the trustee the sum of $4,000 in money. There is no positive testimony that he had in his possession at the time of his failure any part of the stock of goods except those located in the store and turned over to the trustee. Indeed, the theory of the trustee is not that the bankrupt has goods in his possession, but rather that he has converted goods into cash and has the money in his possession." The Circuit Court of Appeals, in the Sixth Circuit, affirmed the District Judge. In re Holden, 203 F. 229, 121 C. C. A. 435. 200 F. 404, 118 C. C. A. 556. In that case the referee found that the director of a bankrupt corporation was concealing $10,000 and ordered him to pay over that amount to the trustee within five days. No attempt was made to have that order reviewed, and as the director failed to comply with the order contempt proceedings were instituted, in which the director filed an affidavit only averring that at no time at or since the filing of the petition in bankruptcy did he have any goods or money of the bankrupts under his control, and that he had never secreted or disposed of any of the bankrupt's assets, and had absolutely no money or property with which to comply with the referee's order. Judge Lacombe, writing for the court, said: "It [the finding of the referee from which no appeal was taken] established prima facie that Weber had at one time $10,000, which he was secreting from the estate; and his bare denial, without corroborative proof, was insufficient to overcome such prima facie case. Upon the application to punish for contempt he made no explanation as to how or why it was that this particular sum had disapBut in the instant case the turn-over orpeared, merely denying that he ever had it. His statement that he had no money when der under review does not require the pethe proceeding for contempt was instituted, titioner to turn over $32,779.74 in money. without some such explanation, was insuf- It requires him to turn over silk and cotton ficient, and the judge quite properly held yarn of that value, or, at his option, in lieu him on contempt for not paying it over. To thereof "the sum of $32,779.74 in cash." excuse disobedience of the order by such And this the referee based on his finding general denial would make it easy to evade that the petitioner "had and still has in his the requirements of the Bankrupt Act possession or under his control assets be[Comp. St. §§ 9585-9656]." longing to this estate in bankruptcy herein, consisting of silk and cotton yarn of the value of $32,779.74, which he did and still is concealing from the said trustee in bankruptcy." And this order the District Judge, as before stated, being of a similar conviction as to the facts, affirmed. In 1918 in Re Chavkin, 249 F. 342, 161 C. C. A. 350, this court, speaking through Judge Hough, said: In a proceeding requiring the bankrupts to pay over property the trustee establishes a prima facie case by showing "by any competent evidence, including the claims or assertions of the bankrupts themselves, that they had unscheduled property a reasonable time before petition filed; the bankrupt must then account for said property, or otherwise rebut the trustee's prima facie case by credible testimony." Our attention is called to In re Haring (D. C.) 193 F. 168, affirmed sub nom. In re Holden, 203 F. 229, 121 C. C. A. 435, and that a writ of certiorari was denied 229 U. S. 621, 33 S. Ct. 1049, 57 L. Ed. 1355. In that case the referee found that the bankrupt had failed "to account for property, or money, or both, of the value of $4,000, and that such amount belongs to this estate and is withheld from the trustee thereof." And he thereupon entered an order directing that Our attention is also called to In re Redbord, 3 F. (2d) 793, 794, where this court, speaking through the present writer, said: "To warrant the order to turn over the money, it must appear not only that the money to be turned over is part of the Bankrupt's estate, but that the money is in his possession or under his control at the time the order to turn it over is made." [3] We do not doubt the correctness of the statement quoted, and it is evident that the referee and the District Judge were satisfied that what the respondent is directed to turn over in the order sought to be revised is part of the bankrupt's estate. If there is in this record no evidence upon which that conclusion can be based it would be the duty of this court to reverse the order. But this court thinks that there is such evidence. And if it so thinks there is nothing for us to do but to affirm the order. [4] In United States v. Moore, 294 F. 852, 856, this court, speaking of an order punishing for contempt one who had failed to comply with a turn-over order, said that "the court should be satisfied of the present ability of the bankrupt to comply with it." That, too, is undoubtedly true. But it is not to be overlooked that when the property is traced into the bankrupt's possession and he fails to produce it, or satisfactorily to explain what became of it, the presumption is reasonable, and the court may infer that it still is in his possession or under his control. [5] As this case is here on petition to revise the court's duty is confined to inquiring whether any error of law was committed in the court below in affirming the turn-over order. If there was no evidence upon which the order could be based this court's duty is plain and the order must be reversed. But on petition to revise the court is limited to matters of law. The facts are for the District Court. This court will not look further into the facts as found than to ascertain whether they are sustained by any substantial evidence. It is certain that in this case there was competent evidence from which the referee and the District Judge were entitled to find that the petitioner had and still has in his possession, or under his control, assets belonging to the estate in bankruptcy, and being convinced of that fact we must hold that the turn-over order was legally made. [6] We need not set forth any more fully than we have done what the evidence is. And from what has been already said it sufficiently appears that the inference which was drawn from that evidence is one which the law recognizes and upholds. The petitioner has had the benefit in this court of learned, able and distinguished counsel. He seems to us to have left nothing unsaid which could be fairly said on the petitioner's behalf. We have carefully examined the record. And we fully agree with the petitioner's counsel that a turn-over order should not be granted, except upon the following conditions: (1) Clear proof that the title to the prop erty sought is in the trustee, or is part of the bankrupt estate. (2) That the bankrupt, or the person directed by such order, at the date of the bankruptcy, and when the order is made, had in his possession or control, the money or property to be turned over, which had been kept and concealed from the trustee. (3) Unscheduled property traced to one, who received it before the filing of the bankruptcy petition, may be presumed to continue in such possession, until a credible explanation is made, showing what has become of such property. The sole difficulty in this case is that in the opinion of the court below this petitioner has not given a credible explanation of what has become of the property which is a part of the bankrupt estate, and which is shown to have been in the petitioner's possession or under his control. The order is affirmed, and the petition to revise is denied. 27 N. 353 711. revd 272.3 Ed. 298,47 Vest 41851 ANDERSON v. SHIPOWNERS' ASS'N OF PACIFIC COAST et al. (Circuit Court of Appeals, Ninth Circuit. certantoan 2740652, No. 4682. 1.4Courts 289Practice of shipowners' as sociation held not violation of commerce or anti-trust statutes, so as to give federal courts jurisdiction. Practice of shipowners' association in refusing to employ seamen not registered held not restraint of interstate or foreign commerce, or violation of Sherman Act (Comp. St. § 8820 et seq.), Clayton Act, § 16 (Comp. St. § 88350), or other federal act, so as to give federal courts jurisdiction of injunction suit, under Judicial Code, § 24 (8), (23), being Comp. St. § 991 (8), (23). 2. Courts 284-Practice of shipowners' as sociation held not violative of statute relative to seamen's shipping contract, so as to give federal courts jurisdiction. Practices of shipowners' association in refusing to employ seamen, not registered held not violative of Rev. St. §§ 4508, 4514, 4515, 4551, 4612 (Comp. St. §§ 8297, 8304, 8305, 8340, 8392), relating to shipping contracts, so as to give federal courts jurisdiction of suit to enjoin such practice. Appeal from the District Court of the United States for the Southern Division of the Northern District of California; John S. Partridge, Judge. Suit by Cornelius Anderson against the Shipowners' Association of the Pacific Coast and another. Decree for defendants, and plaintiff appeals. Affirmed. Appellant, hereinafter called plaintiff, sues on behalf of himself and all other sea 10 F.(2d) 96 men employed in interstate and foreign commerce by sea on American merchant vessels sailing to and from Pacific Coast ports of the United States. He seeks to enjoin certain practices of appellees, hereinafter called the defendants, in the employment of seamen, on the ground that these practices constitute a restraint of interstate and foreign commerce. The District Court sustained defendants' motion to dismiss. H. W. Hutton, of San Francisco, Cal., for appellant. Chauncey F. Eldridge and George O. Bahrs, both of San Francisco, Cal., for appellees. Before HUNT, RUDKIN, and McCAMANT, Circuit Judges. McCAMANT, Circuit Judge (after stating the facts as above). The practices sought to be enjoined are stated with some fullness in the opinion of this court in the suit brought by Alfred Street against these same defendants, 299 F. 5; also in the opinion of the Supreme Court in the same case, 263 U. S. 334, 44 S. Ct. 119, 68 L. Ed. 326. It is charged that the defendants control every vessel flying the American flag, and engaged in the carrying of passengers and cargo between Pacific Coast ports and other American and foreign ports; that they have established a system for registering seamen, and that it is impossible for a seaman not registered with them to secure employment. Plaintiff alleges that on the 15th of June, 1925, he applied at the offices of the defendants in San Francisco for employment as a seaman, and was refused employment because he did not have the registration papers required by the defendants' rules. It is alleged that on the 18th of June plaintiff was employed by the mate of the steamship Caddopeak; that defendants interfered with plaintiff's contract of employment and caused his employer to dispense with his services, to plaintiff's damage in the sum of $135. [1] Defendants challenge the jurisdiction of the federal courts. It is conceded that the jurisdiction cannot rest on diversity of citizenship, because the amount in controversy is less than $3,000. Pinel v. Pinel, 240 U. S. 594, 596, 597, 36 S. Ct. 416, 60 L. Ed. 817. Plaintiff relies on section 24 of the Judicial Code (section 991, Comp. Stat.) subds. 8 and 23. These statutes are as follows: except those suits and proceedings exclusive jurisdiction of which has been conferred upon the Commerce Court. "Twenty-third. Of all suits and proceedings arising under any law to protect trade and commerce against restraints and monopolies." Plaintiff also relies on section 16 of the Clayton Act (section 88350, Comp. Stat.), which is in part as follows: "Any person, firm, corporation, or association shall be entitled to sue for and have injunctive relief, in any court of the United States having jurisdiction over the parties, against threatened loss or damage by a violation of the antitrust laws." It is not alleged that the purpose of the practice complained of is the restraint of interstate or foreign commerce. It is contended that less capable men are employed on vessels than would be employed if the officers of the vessels looked after the employment of seaThis result is alleged to follow from defendants' practice of employing seamen in the order in which they apply for work. This is at most an indirect and incidental impedi men. merce. ment to the transaction of interstate comThe conduct complained of falls without the inhibition of the Sherman Act (Comp. St. § 8820 et seq.), the Clayton Act (Comp. St. § 8835a et seq.), and the federal anti-trust acts generally. anti-trust acts generally. Street v. Shipowners' Association (C. C. A.) 299 F. 5; Tilbury v. Oregon Stevedoring Co., Inc. (C. C. A.) 7 F. (2d) 1. The law applicable to this contention of plaintiff has been stated by this court so clearly and so recently in these decisions that it would serve no good purpose to restate the law and cite in this opinion the cases construing the federal anti-trust laws. It is sought to distinguish the Street Case on the ground that it was not alleged that plaintiff therein had applied for employment and been refused. This allegation, however, is found in the bill of complaint in the Tilbury Case, which was adjudged insufficient by the District Court for Oregon and by this court. [2] It is also contended that the practices complained of violate the federal statutes defining the manner in which seamen are to be employed and the nature of the shipping contract. Sections 4508, 4514, 4515, 4551 and 4612, R. S. (sections 8297, 8304, 8305, 8340 and 8392, Comp. Stat.). The registra "The District Courts shall have original tion of seamen by the defendants and the jurisdiction as follows: arrangements made for their employment are "Eighth. Of all suits and proceedings preliminary to the execution of the form of arising under any law regulating commerce, contract required by the statute. It does not 10 F. (2d)-7 appear from the bill that the defendants have taken seamen to sea without the execution before a commissioner of the statutory contract, or that defendants have otherwise violated the above statutes. If plaintiff has a cause of action, it is not cognizable in the federal courts. The decree is affirmed. GREENAWALT v. AMERICAN SMELTING & REFINING CO. (Circuit Court of Appeals, Ninth Circuit. January 18, 1926.) No. 4587. 1. Patents 168(1)-Claims construed in light of prior decisions in interference proceedings and patentee's amendment thereunder, narrowing claims. Claims of patent must be construed in light of decisions in prior interference proceedings and of patentee's amendment thereunder, narrowing claims in order to procure patent. 2. Patents 328-Greenawalt, No. 1,348,407, for apparatus for roasting ores, held not infringed. Greenawalt patent, No. 1,348,407, claims 17, 20, 21, 24, 25, 26, 47, 48, 49, for apparatus for desulphurizing and agglomerating ores preparatory to smelting, held not infringed. 3. Patents 167(1)-Specifications and whole language of patent considered in determining claims of invention. Specifications and whole language of patent must be considered in determining its claims of invention, and specifications and claims must be read together. Appeal from the District Court of the United States for the District of Montana; George M. Bourquin, Judge. Suit by John E. Greenawalt against the American Smelting & Refining Company. Decree for defendant (3 F.[2d] 658), and plaintiff appeals. Affirmed. Harry A. Beimes and James Love Hopkins, both of St. Louis, Mo., and Edward Horsky, of Helena, Mont., for appellant. Charles E. Pew, of Helena, Mont., Albert M. Austin and Thomas Ewing, both of New York City, and George Donworth, of Seattle, Wash., for appellee. Before GILBERT, HUNT, and RUDKIN, Circuit Judges. GILBERT, Circuit Judge. This is an appeal from a decree of the court below adjudging that the appellee has not infringed claims 17, 20, 21, 24, 25, 26, 47, 48, and 49 of the appellant's patent No. 1,348,407, issued Au gust 3, 1920, on an application filed November 18, 1910, and dismissing the appellant's bill of complaint. The invention relates to an apparatus for desulphurizing and agglomerating or sintering pulverized ore preparatory to smelting. As described in the specifications, it consists of a box-like roasting pan to contain the ore, together with a portable igniter, consisting of a hood or cover shaped to harmonize with the top of the roasting pan and fitting closely thereon when lowered into position for operation. The igniting cover is equipped with spray nozzles for atomizing oil, and it is perforated to allow the entry of air necessary for purposes of combustion. Beneath the pan is a suction apparatus, whereby the flames and hot combustion products are drawn downwardly through the open bottom of the cover and into the layer of ore beneath. Say the specifications: "An important object subserved by the cover is that the igniting flames, in response to the suction of the exhauster, are drawn against the surface of the ore, and the entire surface thereof is simultaneously ignited." Claim 17 is as follows: "In an apparatus for agglomerating or sintering ore, a perforate support for a thin bed of ore, an igniting hood for covering and setting fire to the ore while upon the support, and means for causing currents of air or other support of combustion to pass through the ore while covered by the hood." Claim 20 adds to claim 17 "means for feeding into the chamber suitable ignition fuel and means for causing the gases to pass through the ore and through the perforate support." Claim 21 adds means for causing the gaseous supporter of combustion to pass through the ore "while covered by the hood." Claims 24, 25, and 26 add nothing relevant to the questions of infringement here involved. Claim 47 covers the igniter or cover of the apparatus, which is said to have closed sides, arranged to confine and direct the hot materials therein. Claim 48, instead of calling for a cover fitting closely upon the oreholder, calls for a chamber arranged above the surface of the ore and adapted to contain, confine, and direct downwardly the hot ore-igniting materials. Claim 49, in combination with other features of the apparatus, calls for an igniter comprising a chamber closed at its sides, but "open to admit air thereto." While the application was pending in the Patent Office an interference was declared between the applicant and Arthur S. Dwight. The appellant at that time presented 30 claims. In the final decision by the Commissioner of Patents, Dwight was awarded all of 10 F.(2d) 98 the claims excepting 8, 14, 15, 16, 19, 20, 21, 7. "In an apparatus for agglomerating or sintering ore, a perforate support for a thin bed of ore, a hood for covering the ore while upon the support, means for causing currents of air or other supporter of combustion to pass through the ore while covered by the hood, and an igniter arranged within the hood for setting fire to the ore at its surface." 17. "In a mechanism for sintering ore, the combination with means for holding the body of ore disposed in a layer, of an igniter for the ore arranged above the exposed surface thereof, having a chamber with an open bottom, and arranged to confine hot igniting materials and direct the heat therefrom to an area of the ore mass corresponding with the area of the open bottom of the igniter chamber." The appellant thereupon canceled all claims as to which the decision was adverse. The claims which were allowed to the appellant by the Examiner after the decision in the Dwight interference are not entitled to a broad interpretation. The decision of the Commissioner was final, as was also the decision of the court on the appellant's appeal. The allowance of the appellant's claims thereafter was made in the absence of Dwight or his successors in interest, and those claims, however broad they may be, must inevitably be construed in the light of the prior decisions. In other words, they must all be narrowed by the surrender which the appellant made in the interference proceeding, and in the amendment of his claims thereupon made, and, as so limited, they can only mean that the appellant's apparatus is limited to the use [2] But, irrespective of the effect of the de- |