claim, and while expressly made subject to any and all leases theretofore made by the lessor, it in no manner curtailed, so far as appears from the record in this case, any of the rights either of the defendant Spalding or of the plaintiff or his assignors respecting the work which forms the basis of the present suit; on the contrary, at the time that work was commenced, and during the whole time of its prosecution, the entire Soo claim was under lease to the employer of those miners. Therefore, if by the laws of the territory the plaintiff and his assignors as employés of the lessee were given a lien upon the ground in question and the steps necessary to acquire such lien were taken, it is clear that the plaintiff was entitled to a decree of foreclosure to the extent that such liens existed.

We are therefore to ascertain whether, under the laws of Alaska, the plaintiff and his assignors were given and acquired the liens awarded them by the court below. The original lien law of that territory gave, among other things, a lien to laborers and other persons performing labor upon the construction, development, alteration, or repair of any building, flume, mine, tunnel, aqueduct, or other structure, and made the person in charge of such mine the owner's agent, and declared, if such work was in fact done by any other than the owner, the latter might avoid liability therefor by giving notice that he would not be responsible for the same by posting a notice in writing to that effect in some conspicuous place upon the premises. Sections 262, 265, Carter's Civil Code, and sections 691, 694, Compiled Laws of the Territory of Alaska. In construing those sections, it was held by this court that, in the case of mines, the lien authorized was limited to work done in the development or improvement of the mine. Pioneer Mining Co. v. Delamotte, 185 Fed. 752, 108 C. C. A. 90; Andrews v. Ladd, 188 Fed. 313, 110 C. C. A. 291; Noble v. Gustafson, 204 Fed. 69, 122 C. C. A. 383.

By an act approved June 25, 1910, entitled “An act to create, establish, and enforce a miner's labor lien in the territory of Alaska, and for other purposes" (36 Stat. 848, c. 422 [Comp. St. 1916, §§ 50595069]), Congress provided:

"That every miner or other laborer who shall labor in or upon any mine or mining ground for another in the territory of Alaska in digging, thawing, conveying, hoisting, piling, cleaning up, or any other kind of work in producing any mineral-bearing sands, gravels, earth, or rock, gold or gold dust, or other minerals, or shall aid or assist therein by his labor as cook, engineer, fireman, or in cutting and delivering wood used in said work, or in work in any like capacity in producing the dump, shall, where his labor directly aided in such production, have a lien upon the dump or mass of mineral-bearing sands, gravels, earth, or rocks, and all gold and gold dust, or other minerals therein, and all gold and gold dust extracted therefrom, for the full amount of wages for all the time which he was so employed as such laborer in producing the said dump, within one year next preceding his ceasing to labor thereon; and to the extent of the labor of the said miner or other laborer actually employed or expended thereon, within one year next prior to ceasing to labor thereon the said lien shall be prior to and preferred over any deed, mortgage, bill of sale, attachment, conveyance, or other claim, whether the same was made or given prior to such labor or not: Provided, that this preference shall not apply to any such deed, mortgage, bill of sale, attachment, conveyance, or other claim given in good faith and for value prior to the approval of this act."

At its first session the Legislature of Alaska passed an act, approved April 30, 1913, and made effective July 1, 1913, entitled "An act to create, establish and provide for liens on mines in favor of laborers. and materialmen, and repealing all acts and parts of acts in conflict herewith" (Session Laws 1913, p. 308), which act was the basis of the judgment given by the court below in the present case, and which act, it is insisted on the part of the appellants, is unconstitutional and void on various grounds specifically pointed out and elaborately discussed in their brief. The act of April 30, 1913, was expressly repealed by the subsequent act of the Legislature of the territory, approved April 21, 1915, and entitled:

"An act to provide for the liens of laborers and miners working on, in and about mines and mining property, repealing the art of the Legislature of the territory of Alaska, entitled 'An act to create, establish and provide for liens in favor of laborers and materialmen, and repealing all acts in conflict herewith,' approved April 30, 1913, and declaring an emergency." Chapter 13, p. 29, Session Laws 1915.

Prior to the passage of the act of April 30, 1913, there was no provision of the laws of Alaska requiring the recording of any lease of any mine or mining claim, or the posting of any notice stating the name or names of the lessee or lessees or other person or persons other than the owner and operator of the mine, and stating that the owner thereof would not be responsible for any work done under such lease; but by that act such requirements were made, and by it liens were given, not only to ordinary miners, but for all other classes of work for which the court below awarded liens in the present suit. And the court having expressly found, what the evidence showed without conflict, that the lease under which the defendant Spalding worked and operated the mine in question was never recorded or filed for record, and that the owner of the property failed to post any notice containing the name of the lessee, as required by the act of April 30, 1913, it is clear that the liens here involved were properly sustained, unless it can be held that that act was unconstitutional and void.

[2] We are unable to so hold. Much is said in the brief of the appellants regarding the alleged failure of the act to indicate in its title 'the nature of its numerous provisions; but we think them all germane to its main subject-matter, expressly declared in its title to be "to create, establish and provide for liens on mines in favor of laborers and materialmen, and repealing all acts and parts of acts in conflict herewith." The act of Congress of August 24, 1912 (37 Stat. 512), providing for a Legislature for the territory of Alaska, contains a provision reading in part as follows:

"Sec. 8. *

* No law shall embrace more than one subject, which shall be expressed in its title."

And it is contended on the part of the appellants that the act of April 30, 1913, contains many subjects, and is therefore void. A careful consideration of it shows that the subject undertaken to be provided for thereby is liens on mines in favor of laborers and materialmen, and that the various matters specified by counsel as being independent

subjects are but designations by the Legislature as to who should be considered such laborers, and as to what property should be considered appurtenant to such mines, and subject to the liens provided for, and how such liens should be secured. It will be time enough to consider whether or not such liens can be held to take precedence over existing mortgages or other pre-existing liens when the question. arises; in the present case it is not involved. Here each of the liens sustained by the judgment appealed from was authorized by the act of April 30, 1913, and secured, according to the findings of the trial court, by appropriate proceedings on the part of the respective claimants, which is all that is necessary to an affirmance of the judgment. Judgment affirmed.

BOWERS v. HENRY STEERS, Inc.

(Circuit Court of Appeals, Second Circuit. March 13, 1917. On Rehearing, April 3, 1917.)

No. 216.

1. APPEAL AND ERROR 496-REVIEW-QUESTIONS PRESENTED.

Under Rev. St. § 649 (Comp. St. 1916, § 1587), declaring that issues of fact in civil cases may be tried and determined by the court without the intervention of a jury, wherever the parties or their attorneys of record file with the clerk a stipulation in writing waiving a jury, the finding of the court in such case having the same effect as a verdict, where the transcript of the record did not show that a jury was waived by a stipulation in writing filed with the clerk, the judgment by the court without a jury, though valid, because the judge is regarded as sitting as an arbitrator, cannot be reviewed by writ of error, except for error appearing on the face of the pleadings or of the judgment itself.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 22882294.]

2. JUDGMENT 200-DECISION ON TRIAL BY COURT.

Where the record shows no waiver of a jury, judgment rendered by the judge alone is valid; the judge being deemed to sit as an arbitrator. [Ed. Note. For other cases, see Judgment, Cent. Dig. § 364.]

In Error to the District Court of the United States for the Southern District of New York.

Action by Alphonzo B. Bowers against Henry Steers, Incorporated. There was a judgment for defendant, and plaintiff brings error. firmed.

Merwin & Swenarton, of New York City, for plaintiff in error. Gifford & Bull and Dyer & Taylor, all of New York City (J. Edgar Bull, John Robert Taylor, and George E. Cruse, all of New York City, of counsel), for defendant in error.

Before COXE, WARD, and ROGERS, Circuit Judges.

PER CURIAM. May 16, 1916, after a jury was impaneled in this case, counsel agreed to try the cause before the court without a jury,

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which was accordingly discharged. Subsequently, May 24th, the court handed down an opinion and entered an order, in which a verdict was directed for the defendant and that the defendant have judgment accordingly.

[1, 2] The trial of civil actions at law by the court without a jury is not regulated by the state practice, but by section 649 of the Revised Statutes (Comp. St. 1916, § 1587), which reads as follows:

"Issues of fact in civil cases in any Circuit Court may be tried and determined by the court, without the intervention of a jury, wherever the parties, or their attorneys of record, file with the clerk a stipulation in writing waiving a jury. The finding of the court upon the facts, which may be either general or special, shall have the same effect as the verdict of a jury."

When it does not appear by the transcript of record that a jury was waived by a stipulation in writing filed with the clerk, the judgment, although valid, because the judge is regarded as sitting as an arbitrator, cannot be reviewed by writ of error, except for error appearing on the face of the pleadings or of the judgment itself. Bond v. Dustin, 112 U. S. 604, 5 Sup. Ct. 296, 28 L. Ed. 835; Dundee Mortgage Co. v. Hughes, 124 U. S. 157, 8 Sup. Ct. 377, 31 L. Ed. 357; Andes v. Slauson, 130 U. S. 435, 9 Sup. Ct. 573, 32 L. Ed. 989; Spalding v. Manasse, 131 U. S. 65, 9 Sup. Ct. 649, 33 L. Ed. 86.

As no reviewable error appears in the record, the judgment is affirmed.

On Rehearing.

PER CURIAM. We have, pursuant to the suggestion made by the counsel for the plaintiff in error, examined the question presented, and are of the opinion that the defendant in error is entitled to an affirmance upon the merits.

THE MARY WITTICH.

THE C. W. MILLS.

(Circuit Court of Appeals, Fifth Circuit. March 12, 1917.)

No. 2905.

Appeal from the United States District Court for the Southern Distric of Alabama; Harry T. Toulmin, Judge.

Suit in admiralty by the United States against the schooner C. W. Mills, the tug Mary Wittich, Mobile Towing & Wrecking Company, claimant, and Thomas L. Cook, pilot. Decree for libelant against the tug Wittich (241 Fed. 204), and her claimant appeals. Affirmed.

Palmer Pillans, of Mobile, Ala., for appellant.

Alex D. Pitts, U. S. Atty., H. T. Pegues, Asst. U. S. Atty., T. M. Stevens, and Gregory L. Smith, all of Mobile, Ala., for appellees.

Before PARDEE and WALKER, Circuit Judges, and GRUBB, District Judge.

PER CURIAM. On the evidence in this case we find that the primary fault of the collision in controversy was that of the tug Mary Wittich, and we concur with the lower court in its ruling and disposition of the case.

The decree appealed from is affirmed.

DEISTER CONCENTRATOR CO. v. DEISTER MACH. CO. et al.

(Circuit Court of Appeals, Seventh Circuit.

January 2, 1917.

Denied February 13, 1917.)

No. 2319.

Rehearing

PATENTS 328 VALIDITY AND INFRINGEMENT-ORE-CONCENTRATING TABLE. The Overstrom patent, No. 763,784, for an ore-concentrating table, is for an improvement at most, and, conceding its validity, must be strictly construed, and limited to the construction shown. As so construed, held not infringed.

Appeal from the District Court of the United States for the District of Indiana.

Suit in equity by the Deister Concentrator Company against the Deister Machine Company, Emil Deister, president, and William F. Deister, vice president. Decree for defendants, and complainant appeals. Affirmed.

Robert S. Taylor, of Ft. Wayne, Ind., for appellant.

Darwin S. Wolcott, of Pittsburgh, Pa., and Edward G. Hoffman, of Ft. Wayne, Ind., for appellees.

Before KOHLSAAT, MACK, and ALSCHULER, Circuit Judges.

MACK, Circuit Judge. This is an appeal from a decree dismissing a bill for infringement of claims 7, 8, and 9 of patent No. 763,784, issued to Gustave A. Overstrom, for an ore-concentrating table. Claim 7, which is typical of the others, reads as follows:

A concentrating-table having riffles upon the upper surface thereof, a covering or lining interposed between the riffles and table, and a wedge block interposed between said table and covering to form an upwardly inclined surface at the mineral delivery end of the table, and means for reciprocating the table in the direction of the length of said riffles, as and for the purpose set forth.

The alleged infringement consists in the sale of concentrators constructed as shown in the drawings of patent to William F. Deister, No. 1,088,685, and described in the specifications thereof, and in the construction of plateaus, as shown in Figures 6 and 7 of the Deister patent, upon the decks of pre-existing concentrating tables, especially those made under the Wilfley patent No. 590,675. The following drawings from the several patents will give a clearer understanding of the contentions:

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