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23 F.(2d) 111

protective committee filed a claim for $7,518.54, claiming to be entitled to priority of payment out of the bankrupt estate as for a lien on the assets.

within the principles adopted in In re Stewart, 179 F. 223 (C. C. A. 6th).

The work of the creditors' committee must be regarded as a labor of love, and gratuitously performed for its fellow creditors, as for itself, in the absence of evidence or circumstances tending to support a contrary intention. In my opinion, it is neither an equitable lien entitled to priority, nor a provable claim within the meaning of sections 63 and 64 of the Bankruptcy Act (11 USCA §§ 103, 104).

In June, 1925, the bankrupt called a meeting of its creditors, at which it was represented that the company had gotten into financial difficulties and was then unable to pay its debts. It was further suggested that a creditors' committee be appointed to co-operate with the company officials in working out a solution of its affairs. In July, 1925, meetings of stockholders and directors were held, at which authority was given to the officers of the company to co-operate with the creditors' committee for the purpose of producing funds for the payment of the obligations of the company and for determining a policy for liquidation. The referee found that, while the committee's services were helpful and of UNIVERSAL OIL PRODUCTS CO. v. SKELbenefit to the bankrupt, yet the claim was not of such a character as to be entitled to priority, or as to be allowed as a claim against the estate.

I am inclined to adopt the view and findings of the referee in sustaining objections to the allowance of this claim. It does not appear that the creditors' committee was authorized to, or that it did, in fact, take over, control, and operate or preserve the assets and business of the company in toto, in the sense that it would be entitled to priority of payment out of the proceeds of the estate after the manner of an assignee. I think the creditors' committee not in the situation of an assignee, entitled to preference under the doctrine approved in Randolph v. Scruggs, 190 U. S. 533, 23 S. Ct. 710, 47 L. Ed. 1165; the difference between them being something more than a "mere fiction of relation."

The character of the claim here is one for services performed which are incapable of admeasuring in terms of property or funds thereby saved, rescued, or made available for creditors generally, and therefore unlike those claims considered in Trustees v. Greenough, 105 U. S. 527, 535, 26 L. Ed. 1157, and Winton v. Amos, 255 U. S. 373, 393, 41 S. Ct. 342, 65 L. Ed. 684. If such claim may be proved, or entitled to priority, it would open the way for favored creditors to obtain what, in effect, would be a preference, or for credit associations, which often undertake to aid a failing business to stave off bankruptcy, to obtain compensation out of the bankrupt estate for their services, to the prejudice of general creditors. Nor do I think the claim of the creditors' committee in the same class or relation as an assignee or a quasi receiver,

Accordingly, the finding, conclusions, and order of the referee disallowing the claim will be approved and confirmed, and the petition to review dismissed, to which action the petitioner may have its exceptions.

LY OIL CO.

District Court, D. Delaware. December 7,
1927.
No. 582.

Patents 315-Newly discovered evidence
held Insufficient to authorize reopening and
rehearing of issues involving validity and In-
fringement of 1,281,884.

Newly discovered evidence held insufficient to authorize reopening and rehearing of issues involving validity and infringement of Trumble patent, No. 1,281,884.

On motion by defendant to reopen and for reargument. Motions denied.

For prior opinion, see 20 F. (2d) 995.

Thomas G. Haight, of Jersey City, N. J., Samuel E. Darby, Jr., of New York City, Charles M. Thomas and William F. Hall, both of Washington, D. C., and Frank L. Belknap, of Chicago, Ill., for plaintiff.

William H. Davis, Frank E. Barrows, Raymond F. Adams, and John F. Neary, all of New York City, James H. Hughes, Jr., of Wilmington, Del., and W. P. Z. German, of Tulsa, Okl., for defendant.

MORRIS, District Judge. After the handing down of the opinion in this case (20 F.[2d] 995), and before entry of decree, the defendant moved to reopen, that further testimony, newly discovered, might be adduced by the defendant, and for reargument. An examination of the testimony proposed to be offered convinces me that it is not of a character that would warrant the reopening of the case at this stage. It is neither controlling nor so persuasive as materially to affect any issue.

The briefs in support of the motion for reargument point out some false reasoning and erroneous conclusions upon subordinate issues in the opinion filed. They do not, however, as I understand them, materially disturb the main conclusions of invention, nonanticipation, utility and infringement. Invention is to be found, I think, in the conversion of the cycled batch process and still into a continuous cyclic process and still, notwithstanding the continuous process had been theretofore disclosed for distillation, and possibly for cracking, in the shell still, and notwithstanding a battery of shell stills might be used for cracking without clogging the connecting pipes.

Cracking oil precipitates carbon, which tends to settle in the heating zone. The increased rapidity of flow through the heating zone in the cyclic system tended to prevent settling in the heating zone, and to afford opportunity therefor in the tank from which the draw-off was taken. In minimizing the carbon difficulties, velocity was made to take in large measure the place of agitation by heat. Furthermore, in the shell still, the escape of carbon was in opposition to the force of gravity while in the Trumble device gravity was made to aid. The continuous cyclic process constituted a new method of dealing with the carbon problem, possessing advantages greater and other than the sum of the advantages of the two systems.

That Trumble's invention possessed utility is, I think, adequately supported by that which his process and apparatus accomplished. The new evidence sought to be introduced is not sufficient to preponderate over that already in the record. It is true that Trumble did not reach at one leap ultimate perfection in his apparatus; but, as I see it, his invention contains the basic idea marking the entrance to the pathway followed by defendant.

Unless defendant's still can be held to be a shell still, as defendant contends it is, and unless claim 2, notwithstanding its difference from claim 3, must be construed so narrowly as to prevent the shifting of valve 22, as shown in Trumble's drawing, from pipe 21 of Trumble's drawing to pipe 52, as is in effect done by the defendant, I see no means by which defendant can escape infringement. I am not convinced that defendant's still is a shell still, as distinguished from a tube and tank still; nor am I satisfied that claim 2 and the accompanying apparatus, claim 4, should be so narrowly construed as to prohibit pressure upon the oil in the tank, par

ticularly as claim 1 permits the same pressure in tube and tank.

The motions must be denied.

UNITED STATES v. WILSON et al. District Court, N. D. West Virginia. December 24, 1927.

5-Defendants'

1. Searches and seizures petition for return of prize fight films, after finding of probable cause for seizure for conspiracy to violate statute, will be denied (Cr. Code, § 37 [18 USCA § 88]; 18 USCA § 405).

Where United States commissioner, on hearing in prosecution under Criminal Code, § 37 (18 USCA § 88), for conspiracy to violate Act July 31, 1912, § 1 (18 USCA § 405), forbidding importation and interstate transportation of prize fight films, found that there was probable cause for believing the existence of grounds on which search warrant and warrant of arrest were issued, petition of defendants for return of the seized films, in order that they might be placed on public exhibition for hire and reward, will be denied.

2. Conspiracy 23-"Criminal conspiracy" Is confederation to do something unlawful, either as means or an end.

A "criminal conspiracy" is a confederation

to do something unlawful, either as a means or an end, and consists of a combination of two or more persons by concerted action to accomplish a criminal or unlawful purpose.

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

3. Conspiracy 28-Agreement to commit crime against United States with overt act therein is indictable as a "conspiracy."

An agreement of two or more persons to commit any crime against the United States, with an overt act done in effecting its object, is indictable as a "conspiracy."

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

4. Conspiracy 47-Government, to sustain charge of conspiracy, need not furnish proof of unlawful plan or agreement.

The government, to sustain a charge of conspiracy, need not furnish proof of unlawful plan or agreement; but such charge may be sustained by evidence showing concert of action in commission of unlawful act, or by proof of other facts authorizing inference that unlawful overt act was in furtherance of conspiracy. 5. Conspiracy

27-Overt act, to effect object of conspiracy, need not be criminal or unlawful in itself.

While an overt act done to effect the ob

ject of the conspiracy is essential to render the conspiracy punishable, such an overt act need not be criminal or unlawful in itself, being in reality something apart from conspiracy.

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8. Conspiracy

24-In dealing with conspiracy, it is not essential that persons acted together in formal manner found in ordinary lawful transactions.

It is not essential, in dealing with conspiracy, that persons acted together in a formal manner, with the solemnity or with the deliberation that is found in the ordinary lawful transactions of life; it being sufficient to show the making of an unlawful combination by any manner or means.

9. Conspiracy 23-Defendants need not have knowledge as to who all members of conspiracy were.

It is not at all necessary that defendants, charged with conspiracy, should have knowledge as to who all the members of the conspiracy

were.

10. Conspiracy 47-Conspiracy may be proved by circumstantial evidence.

Defendant's guilt of participation in a conspiracy may be proved by circumstantial evidence.

11. Conspiracy 48-Facts and circumstances alleged to constitute conspiracy are for jury. Facts and circumstances alleged to constitute a conspiracy are matters to be placed before a jury, under proper instructions by the court covering the law, that the jury may say whether the defendants are guilty or not.

12. Conspiracy 23-Guilt of conspirator is not dependent on knowledge of entire scope of conspiracy.

Guilt of a conspirator is not dependent on his knowledge of entire scope of conspiracy; it being enough if he knows in a general way what purposes of those engaged in unlawful undertaking are in that respect.

13. Conspiracy 23-Persons having knowl. edge of purpose in interstate transportation of prize fight films and furthering such under. taking may be found guilty of conspiracy (Cr. Code, § 37 [18 USCA § 88]; 18 USCA § 405).

Where defendants, charged with conspiracy under Criminal Code, § 37 (18 USCA § 88), to violate provisions of Act July 31, 1912, § 1 (18 USCA § 405), forbidding importation and interstate transportation of prize fight films, knew even in general way the purposes of those engaged in transportation of films across state line to cause them to be exhibited for pay, and

acted to further such undertaking, they may be found guilty as members of such conspiracy. 23 F. (2d)-8

14. Prize fighting -Law forbidding importation and interstate transportation of prize fight films should be given liberal construction (18 USCA § 405).

Act July 31, 1912, § 1 (18 USCA § 405), forbidding the importation and interstate transportation of prize fight films, should be given a liberal construction by the court, with a view of carrying out the intention of Congress to prevent the public exhibition thereof.

notice

15. Criminal law 304 (2)—Judicial will be taken that picture films are of highly Inflammable nature.

The court takes judicial notice that motion picture films are of a highly inflammable nature, and liable to burn up in use at any time.

Prosecution by the United States against Jack Wilson and others. On petition of certain defendants for a return of prize fight films seized by the United States marshal. Petition denied.

Arthur Arnold, U. S. Atty., of Piedmont, W. Va.

Tom B. Foulk, Handlan, Garden & Matthews, and B. L. Rosenbloom, all of Wheeling, W. Va., for defendants Shafer, Otte, and Dolan.

BAKER, District Judge. On October 24, 1927, Harry A. Weiss, United States marshal for the Northern district of West Virginia, appeared before John W. Kindelberger, United States commissioner of this court, in the city of Wheeling, and made oath and complaint that he had reason to believe and did believe that within a certain building, commonly known and referred to as the Court Theater on Chapline street, in the city of Wheeling, Ohio county, West Virginia, in the Northern district thereof, of which theater George S. Shafer is the manager, there was located certain property, to wit, certain films and other pictorial representations of a prize fight designed to be used, and which might be used, for the purpose of public exhibition, to wit, the Tunney-Dempsey prize fight, held in Chicago, in the state of Illinois, on the 22d day of September, 1927, which were being used as a means of committing a felony, to wit, a violation of section 37 of the Criminal Code (18 USCA § 88) of the United States; that the facts to establish the grounds of probable cause were as follows:

That the owner of said Court Theater and said George Shafer, manager thereof, and divers other persons whose names were unknown, did on and previously to the 24th day of October, 1927, unlawfully, knowingly, and feloniously conspire, combine, and confederate together, each with the other, among themselves, to commit an offense against the

United States, to wit, to violate the provisions of title 18, section 405, of the United States Code Annotated, and known as an act to prohibit the importation and the interstate transportation of films and other pictorial representations of prize fights, and for other purposes, designed to be used, and which might be used, for the purpose of public exhibition in the following manner; that is to say, that George Shafer, and divers other persons whose names are unknown, should and did bring and cause to be brought into the city of Wheeling, Ohio county, West Virginia, from another state of the United States, films and other pictorial representations of a prize fight, to wit, the Tunney-Dempsey prize fight; that in pursuance with said conspiracy, and during the continuance thereof, and in execution and to effect the object of the same, George Shafer and others did, on or about the 21st day of October, 1927, and thereafter, to the 24th day of October, 1927, at Wheeling, West Virginia, unlawfully, knowingly, and feloniously advertise on billboards within the said city of Wheeling the public exhibition of said prize fight films at said Court Theater for the week commencing Monday, October 24, 1927; that on the 24th day of October, 1927, at Wheeling, West Virginia, said George Shafer and others did unlawfully, knowingly, and feloniously publicly exhibit said films and other pictorial representations of the Tunney-Dempsey prize fight, which said films are designed to be used and had been used for the purpose of public exhibition at the Court Theater.

Thereupon a search and seizure warrant was issued by United States Commissioner Kindelberger, commanding Harry A. Weiss to enter the Court Theater, so located on Chapline street, in the city of Wheeling, and search diligently for prize fight films, etc., to seize the same and bring them before said commissioner, and to make due return, etc. The return of United States Marshal Weiss thereon is as follows:

"Received this writ at Wheeling, West Virginia, on the 24th day of October, 1927, executed the same at the same date, at Wheeling, Ohio county, West Virginia, at the Court Theater, located on Chapline street, said city of Wheeling, by making search as directed herein, and I certify and return that I found three (3) films showing the Tunney-Dempsey prize fight, Nos. 1, 2 and 3, and took the same into my possession, and at the same time I delivered to Dan Dolan, said to be the owner of the films, and to George S. Otte, assistant manager of the Court Theater, a true copy hereof, and giv

ing to the said owner of the films and assistant manager of the Court Theater, a receipt for the films, as I am herein commanded. [Signed] Harry A. Weiss, U. S. Marshal, Northern District of West Virginia."

On the 26th day of October, 1927, Morris D. Traub, special agent of the Department of Justice, appeared before United States Commissioner Kindelberger and made complaint that on or about the 24th day of October, 1927, at Wheeling, Ohio county, in the state of West Virginia, Jack W. Wilson, Daniel J. Dolan, George Shafer, George S. Otte, and divers other persons whose names are unknown to affiant, in violation of section 37 of the Criminal Code of the United States, did unlawfully, knowingly, and feloniously combine, conspire, confederate, and agree together, each with the other, among themselves, to commit an offense against the United States of America; that is to say, to violate the provisions of section 1 of the Act of Congress of July 31, 1912, chapter 263, 37 Statutes at Large, 240, U. S. Code Annotated, title 18, section 405, known as an act to prohibit the importation and interstate transportation of films and other pictorial representations of prize fights, and for other purposes, designed to be used, and which might be used, for the purpose of public exhibition in the manner following; that is to say:

That Jack W. Wilson, Daniel J. Dolan, George Shafer, George S. Otte, and divers other persons whose names are to the affiant unknown, should and did bring and cause to be brought into the city of Wheeling, in the county of Ohio, Northern district of West Virginia, from another state of the United States, films and other pictorial representations of a prize fight designed to be used, and which might be used, for the purpose of public exhibition, to wit, the Tunney-Dempsey prize fight films.

That in pursuance to said conspiracy, and during the continuance thereof, and in execution and to effect the object of the same, the said Daniel J. Dolan, George S. Otte, and George Shafer did, on or about the 21st day of October, 1927, and thereafter to the 26th day of October, 1927, at Wheeling, West Virginia, unlawfully, knowingly, and feloniously advertise on billboards within the city of Wheeling the public exhibition of said prize fight films of said TunneyDempsey prize fight in the Court Theater for the week commencing Monday, October 24, 1927.

That in pursuance of said conspiracy, and during the continuance thereof, and in

23 F.(2d) 112

execution and to effect the object of said conspiracy, Daniel J. Dolan, George S. Otte, and George Shafer, on the 24th day of October, 1927, at Wheeling, West Virginia, unlawfully, knowingly, and feloniously did publicly exhibit at said Court Theater, in Wheeling, West Virginia, the said films and other pictorial representations of said Tunney-Dempsey prize fight, which said films were designed to be used and have been used for the purpose of public exhibition at said Court Theater.

Pursuant to said affidavit and complaint, a warrant of arrest was issued by said Kindelberger, United States commissioner, for Jack W. Wilson, Daniel J. Dolan, George Shafer, George S. Otte, and divers other persons whose names were unknown to the affiant making complaint, commanding said United States Marshal Weiss to apprehend Jack W. Wilson, Daniel J. Dolan, George S. Otte, George Shafer, and divers other persons to affiant unknown, and bring their bodies forthwith before said commissioner to answer said complaint, that they might be dealt with according to law for the said offense.

The return on the back of said warrant of arrest is in words and figures following: "Received this warrant on the 26th day of October, 1927, at Wheeling, and executed the same by arresting the within named Daniel J. Dolan and George S. Otte at Wheeling on the 26th day of October, 1927, and have their bodies now in court, as within I am commanded. [Signed] Harry A. Weiss, United States Marshal, Northern District of West Virginia."

From the transcript of proceedings sent to this court by United States Commissioner Kindelberger, I find as follows: "On October 26 the defendants waived hearing and gave bond to appear at the May term, 1928, of this court at Wheeling." By reference to the bonds also returned as a part of the record, I find that Daniel J. Dolan entered into a bond in the penalty of $500 for his appearance at the Wheeling May term, 1928, with Fidelity & Deposit Company of Maryland as surety thereon, and that George S. Otte, Jr., entered into a bond in the penalty of $500, with William S. Shafer as his surety, for a like appearance, both of which said bonds were taken and acknowledged before John W. Kindelberger on the 26th day of October, 1927.

Again referring to the transcript of proceedings before the commissioner, looking for the disposition of the prize fight films in question, I find as follows:

"And it further appearing that the property, to wit, three reels of moving pictures films of the Tunney-Dempsey prize fight taken by Harry A. Weiss, United States marshal for the Northern district of West Virginia, is the same as that described in the search warrant issued by me on October 24, 1927, directing said marshal to search the premises of the Court Theater, on Chapline street, in the city of Wheeling,' and seize any property therein found used as a means of committing a felony, as directed in said warrant; and it further appearing that there is probable cause for believing the existence of the grounds on which said search warrant was issued, it is hereby ordered that the said property, to wit, the three reels of moving picture films of the TunneyDempsey prize fight, be retained in the custody of Harry A. Weiss, United States marshal for the Northern district of West Virginia, who seized said property, until otherwise disposed of according to law."

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I have gone into the complaints and warrants in detail, and have also covered the transcript of proceedings before Commissioner Kindelberger, to show that at no time before United States Commissioner Kindelberger did the defendants mentioned in said warrants, or either of them, raise any question or objection of any kind or character to either the search warrant or the warrant of arrest, or to the impounding of the three reels of prize fight films as ordered by the commissioner, but, in each instance, waived hearing before the commissioner, and entered into bond for their personal appearance at the next Wheeling May term, 1928, and permitted the fight films to be impounded by the United States commissioner, without even a request that said films be turned over to them under any conditions whatso

ever.

This matter first came officially to this court on November 1, 1927, when George Shafer, George S. Otte, and Dan Dolan, defendants in the action before the United States commissioner, presented to this court a petition in which they allege and set out in detail that the accused, George Shafer, is manager of the Theaters Company, a corporation, operating the Court Theater in Wheeling, West Virginia; that George S. Otte is assistant manager of the Theaters Company, a corporation; that Dan Dolan is the owner of the fight films of the TunneyDempsey fight held in Chicago on the 22d day of September, 1927, in question in these proceedings.

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