Stat. 78) and not with the Librarian of Congress or Commissioner of Copyrights, as required in the case of "pictorial illustrations or works connected with the fine arts." The plaintiff used it in advertising its manufactured goods. The defendant operates a retail department store in St. Paul, Minn. Having bought a quantity of the "B. V. D." underwear made by plaintiff, it reproduced plaintiff's print without its permission in advertising the goods for sale in the daily newspapers, and in doing so omitted the copyright notice from the reproduction. The case was submitted on the pleadings without proof. The trial court held that the validity of the copyright was not put in issue, but that if it were, and were to be decided upon the face of the pleadings and an inspection of the print, the copyright should be upheld. A decree was accordingly rendered for the plaintiff, and the defendant appealed. We think the court was right in holding that the validity of the copyright was not in issue; and, as the plaintiff still continues before us its insistence upon that condition of the case, we will so confine our consideration of it. In other words, we will take the plaintiff's print as an admitted valid copyright. The defendant argues that the rules of trade-mark, as expressed in Coca Cola Co. v. Bennett (D. C.) 225 Fed. 429, are applicable, and that, as it restricted its use of the print to advertising the goods manufactured by plaintiff, the latter had no cause for complaint-was in fact benefited, not damaged. But, as above indicated, the print was registered in the Patent Office as a copyright, not as a trade-mark. So far as the pleadings show, it was designed for and used in detached advertising. We need not consider what the rights of the parties might have been, had the plaintiff used the print as a trade-mark by attaching or weaving reproductions of it into the garments it manufactured, put upon the market, and sold. That is not involved in the case, and we put it aside. The plaintiff had the right to advertise its goods in its own way, and in the use of its copyrighted print for that purpose it had the exclusive right. The defendant was at liberty to advertise the underwear it bought and owned by other prints and illustrations, but not to copy or reproduce a copyright of the plaintiff. The decree is affirmed. THE BLACK DIAMOND. THE CHARLES MCNEILL (Circuit Court of Appeals, Second Circuit. April 26, 1917.) No. 244. COLLISION 95(2)-MEETING TUGS-CHANGE OF COURSE. A collision in East River between a schooner in tow of a tug passing down and a carfloat on the side of a meeting tug held, on conflicting evidence, due solely to the fault of the down-bound tug in changing course to starboard after a signal agreement to pass starboard to starboard. [Ed. Note.-For other cases, see Collision, Cent. Dig. §§ 200-202.] For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes Appeal from the District Court of the United States for the Eastern District of New York. Suit in admiralty for collision by Freeman Hatfield against the steam tug Black Diamond, the Lehigh Valley Transportation Company, claimant, with the steam tug Charles McNeill, Charles McNeill, claimant, impleaded. Decree for libelant against the McNeill, and her claimant appeals. Affirmed. The following is the opinion of Van Vechten Veeder, District Judge, in the court below: This case arises out of a collision, on April 30, 1915, about noon, at a point 600 or 700 feet off the Whitehall Ferry slips, between the schooner Gypsum Queen, in tow of the tug Charles McNeill, proceeding down the East River, and a carfloat in tow on the starboard side of the tug Black Diamond, which had another carfloat on its port side, and was bound up the East River. The owner of the schooner libeled the Black Diamond, which brought in the Charles McNeill by petition. The captains and crews of the two tugs differ as to whether they were in a position to pass starboard to starboard or port to port, as well as to what signals were given. The acceptance of either tug's claim involves the other in gross fault. The crews of the tugs differ radically. Each party is more or less supported by an imposing array of apparently disinterested witnesses, but the witnesses for neither side, agree upon details. It is obviously a case which calls for discrimination in judging the intelligence and veracity of witnesses. In both respects the witnesses for the Black Diamond were, as a whole, distinctly superior to the witnesses for the Charles McNeill. Moreover, several of the disinterested witnesses on behalf of the claimant viewed the collision from positions which gave them superior opportunities for observation. I was particularly impressed with the testimony of claimant's witnesses Matthew Murphy and George M. Bunce. Of course, the actual relative positions and courses of the two tugs are practically decisive of the controversy as to whether they agreed to pass starboard to starboard or port to port. I find as facts established by a distinct preponderance of the credible testimony that, when the Black Diamond straightened up on her course, the two tugs and tows were in a position to pass starboard to starboard; that they exchanged two whistle signals for such passage; and that thereafter the Charles McNeill changed her course to starboard and attempted to cross the bow of the Black Diamond, thereby causing the collision. Evidently other signals were given after the two whistles passing agreement and before the collision, but the testimony concerning them is so conflicting that it is difficult to arrive at a satisfactory conclusion. The disinterested testimony tends to show that they were a mixture of signals in the nature of alarms when collision was imminent. However, it is clear that the change of course by the Charles McNeill was the proximate cause of collision, and was a fault which fixes her liability. This conclusion necessarily discredits the testimony of the captain of the Charles McNeill, which varied from his statement to the local inspectors, and places reliance upon the testimony of the captain of the Black Diamond, especially in so far as it is corroborated by the testimony of disinterested witnesses who were in a position to know the facts. A decree in accordance herewith may be settled on notice. G. V. A. McCloskey, of New York City, for appellant. PER CURIAM. Decree affirmed, with interest and costs. Appeal of COOK. (Circuit Court of Appeals, Third Circuit. July 2, 1917.) No. 2270. ALIENS 68-REVIEW-DECISIONS REVIEWABLE. Appellate review is not a matter of right, and must rest on a constitutional and legislative provision; hence a decision denying an application for naturalization cannot be reviewed by the Circuit Court of Appeals on writ of error or on appeal, there being no provisions for such review. [Ed. Note.-For other cases, see Aliens, Cent. Dig. §§ 138–145.] Appeal from the District Court of the United States for the District of New Jersey; Thos. G. Haight, Judge. Application of James Cook for naturalization was refused (239 Fed. 782), and applicant appeals. Appeal dismissed. John M. Russell, of New York City, for appellant. J. L. Bodine, Asst. U. S. Atty., of Trenton, N. J., for appellee. Before BUFFINGTON, MCPHERSON, and WOOLLEY, Circuit Judges. MCPHERSON, Circuit Judge. The District Court of New Jersey refused to naturalize the appellant for the reasons stated by Judge Haight in 239 Fed. 782, and this appeal challenges the correctness of that decision. We do not consider it, for in our opinion we have no appellate jurisdiction in this class of controversies. We so decided in U. S. v. Neugebauer, 221 Fed. 938, 137 C. C. A. 508, following U. S. v. Dolla (C. C. A. 5) 177 Fed. 101, 100 C. C. A. 521, 21 Ann. Cas. 665; and, although each of these cases was a writ of error, and was an attempt to review an order granting the alien's petition, we think no difference in principle is presented by the facts that the petition here was refused instead of granted, and that the case comes before us by appeal instead of by writ of error. The general rule of law is that appellate review is not a matter of right, and must rest on a constitutional or legislative provision (3 Corpus Juris, page 297); and we are aware of no provision that authorizes a disappointed alien to appeal from the refusal to grant his application. To avoid a possible misunderstanding, we may add that this decision has no bearing upon a suit by the United States under section 15 of the Act of June 29, 1906 (34 Stat. 601, c. 3592 [Comp. St. 1916, § 4374]), to cancel a certificate. The appeal is dismissed. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes CORRUGATED BAR CO. v. TRUSSED CONCRETE STEEL CO. et al. (Circuit Court of Appeals, Eighth Circuit. March 12, 1917.) No. 4734. PATENTS 328-INVENTION-Concrete and Metal FLOOR CONSTRUCTION. The Johnson patent, No. 633,285, for a concrete and metal floor and ceiling construction, consisting of a slab of concrete having transversely corrugated bars of metal embedded in the lower portion thereof and loops of pliable wire suspended across such bars, with the ends projecting below the concrete to support the ceiling below the floor, is void for lack of patentable novelty and invention, in view of the prior art, which disclosed in earlier patents all the essential elements of the patented structure, requiring only mechanical skill for their combination. Appeal from the District Court of the United States for the Eastern District of Missouri; David P. Dyer, Judge. Suit in equity by the Corrugated Bar Company against the Trussed Concrete Steel Company and others. Decree for defendants, and complainant appeals. Affirmed. James A. Carr, of St. Louis, Mo. (T. Percy Carr and Amasa M. Holcombe, both of St. Louis, Mo., on the brief), for appellant. Fred L. Chappell, of Kalamazoo, Mich. (C. C. Linthicum, of Chicago, Ill., and Edward C. Eliot, of St. Louis, Mo., on the brief), for appellees. Before SANBORN and HOOK, Circuit Judges, and AMIDON, District Judge. SANBORN, Circuit Judge. The Corrugated Bar Company, a corporation, the plaintiff below, appeals from a decree by which its complaint for an infringement by the defendants, Trussed Concrete Steel Company, a corporation, and others, of letters patent No. 633,285, issued to Albert L. Johnson, September 19, 1899, for an improvement in fireproof floor construction was dismissed. Johnson's improvement consisted principally: (1) In the use of transversely corrugated metallic bars embedded in the lower part of concrete slabs forming the flooring, or embedded in concrete ribs on the lower side and forming a part of such a flooring, for the purpose of increasing the tensile strength of the lower portion of the flooring, or of the ribs below it; and (2) in the use of a loop of pliable wire suspended astraddle such bars and embedded with them in the concrete ribs or the lower portion of the concrete flooring, with the ends of the wire projecting below the concrete for the purpose of hanging or supporting the ceiling below the floor. In this patent there are nine claims. The first six relate to combinations of the patentee's transversely corrugated bars with concrete flooring, with concrete flooring provided with ribs, with concrete flooring strengthened by expanded metal embedded therein, and with such fooring resting upon concrete ribs and concrete haunches based on the flanges of supporting I-beams. But the use of the specific transversely corrugated bars of Johnson conditions the novelty and For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & indexes patentability of each of them. Claim 1 illustrates them and reads in this way: "1. In a concrete and metal construction, a slab of concrete having bars of metal embedded in the lower portion thereof, each of said bars being of substantially uniform thickness throughout its length and having corrugations arranged in planes substantially perpendicular to the axis of the bar, substantially as described." Claims 7, 8, and 9 rest upon the use of the suspending loops of wire imbedded in the concrete floor straddling the reinforcing rods embedded in the concrete and extending below the flooring for the purpose of hanging the ceiling beneath it.. Claim 7 illustrates them and reads in this way: “7. A fireproof flooring and ceiling construction comprising a main flooring layer of concrete having strengthening ribs on its under side, transversely corrugated bars of substantially uniform thickness throughout their length embedded in said ribs, and ceiling hangers suspended from said bars, substantially as described." The maintenance of this suit is dependent, first, upon the novelty and patentability of Johnson's transversely corrugated bar in the combinations of the first six claims, for the bar made and used by the defendants in their concrete floors undoubtedly infringes, if the devices of these claims were patentable; and, second, upon the patentability of the devices described in the three claims for the combinations of the suspended ceilings, and, if these claims were patentable, upon the infringement thereof. Were Johnson's claims for the combinations of his corrugated bars with concrete flooring, in the various ways he specified, novel and patentable? Laying aside for the moment his corrugated bars, every other element and device described in the first six claims of his patent was old and well known before he made his alleged invention, and a careful review of the prior art has convinced. that there was nothing required beyond the skill of the ordinary mechanic to conceive and construct any of the devices of these claims unless Johnson's corrugated bar was novel and made them patentable. Concrete flooring, ribbed concrete flooring, concrete haunches to protect steel and iron from fire and to sustain flooring, concrete flooring reinforced by rods or by expanded metal embedded therein to increase the tensile strength of the flooring, had been constructed, detailed descriptions of them had been published, patents for many forms of them had been issued before Johnson conceived or formed the devices of any of these first six claims. Indeed, in his specification he writes: "The present system of fireproof floor construction consists of haunches of concrete 1, resting on the lower flanges of adjacent I-beams 2, incorporated into the building structure, a series of concrete ribs 3, extending from I-beam to I-beam, and a main floor sheet or layer 4 of concrete on said ribs and haunches and covering all the space between the I-beams, all incorporated as one solid mass." It is, therefore, upon the novelty and patentability of his transversely corrugated bar that the plaintiff must rely to sustain the validity of the first six claims of his patent. There was no novelty in the use of bars or rods of metal, round, square, twisted, smooth, or rough, in con |