(263 F.) are only accessories in the entire effort of fastening cap to sleeve, but that makes no difference in infringement. There is no such thing as a partial infringement. Thus we do not doubt that defendant has taken Weber's lock, turned it half around, and given it a subsidiary role; it remains to consider whether the word "telescopically," or "telescopic," used in the claims, has so restricted a meaning as to enable this to be done with impunity. If lexicographers be consulted, every dictionary suggested covers the thought of one part fitted within another, and by sliding or working, one against the other, producing prolongation or retraction. Oxford; Century; Webster; Standard. The reference is always to the "spyglass" of former days. That this instrument is best and usually elongated by a rotational movement is common knowledge; indeed, without it, no accuracy of length can be obtained. If the language of mechanics be regarded, the word is, and long has been, applied to many systems of concentric tubes, so that a "telescope screw" is a permissible locution. Finally it is urged that in 256 Fed. 31, 167 C. C. A. 303, this court by pointing out that Weber's method of engagement was "by a straight thrust," declared (in effect) that no system of locking cap and sleeve involving a rotational component could infringe. The remark we still think true, but the inference mistaken. Weber does lock cap to sleeve by a straight thrust, but a thrust may be as straight on the equator as along the pole. When Weber's means are the only means of locking cap to sleeve, the phrase is true in a simple sense, when they are relegated to the place of an adjunct, the operation is identical though not so apparent. That part of the defendant's socket utilizing Weber is so shaped that the thrust or power which does the final locking is along a circumference, but it is (first) straight-i. e., at right angles to the slit and the abrupt face of the projection-and (second) but a part of the movement of cap relative to sleeve, which in its totality is telescopic. These reasons compel us to think the order appealed from right, and regretfully to differ from the views regarding scope and interpretation of these claims expressed in the recent judgment of our sister court in the Third circuit respecting the Freeman device. Order affirmed, with costs. EXCELSIOR STEEL FURNACE CO. v. L. J. MUELLER FURNACE CO. (Circuit Court of Appeals, Seventh Circuit. January 6, 1920.) No. 2733. PATENTS 328-FOR HOT AIR CONDUIT NOT INFRINGED. The Scherer patent, No. 1,085,303, for a double wall hot air conduit, being for an improvement of narrow scope, held not infringed. Appeal from the District Court of the United States for the Eastern District of Wisconsin. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes Suit in equity by the Excelsior Steel Furnace Company against the L. J. Mueller Furnace Company. Decree for defendant, and complainant appeals. Affirmed. Benjamin T. Roodhouse, of Chicago, Ill., for appellant. Before BAKER, EVANS, and PAGE, Circuit Judges. EVANS, Circuit Judge. The patent to Albert G. Scherer, No. 1,085,303, under consideration on this appeal, "relates to improvements in a double wall hot air conveyor or stack." The general purpose and the means by which the object was to be accomplished are thus described by patentee: * * "In such stack the two walls are kept separate, so as to form an air space between the inner wall, inside of which the hot air from the furnace passes, and the outer wall, which contacts with portions of the building, for the purpose of keeping the outside wall as cool as possible. Double wall stack requires special machinery for its manufacture, and for that reason it is made in the factory in sections. * * * The objects of my present invention are, first, the provision or means in such double wall stack for securely locking the respective sections together, and, second, the improvement of the structure so that it is both stronger and simpler to manufacture than heretofore." As double wall hot air conveyors were old, patentee acknowledged his contribution was but an improvement. Likewise, general means for locking sections were old, and the improvement, at best, marked but a slight advance. It must be so considered. Claim 3 is the only one involved and reads: "3. A length of double wall hot air conduit, comprising an inner and an outer wall, at one end a spacer between the inner and outer walls, the inner surface of the inner wall having a channel of angular cross-section, and a shoulder back of said channel; at the other end, the outer wall having formed therein a shoulder and an angular depression to receive respectively the outer and inner walls of an adjacent section, the said outer wall being further formed to enter the inner wall of said adjacent section, with a projection to enter the channel, in such inner wall." While appellee attacks the validity of the patent, both for want of invention and because of prior publication, as well as prior public use, it is unnecessary, in our view of the case, to consider any defense other than that of noninfringement. It is claimed by appellee that the alleged infringing structure does not possess the element in the claim that is italicized. That this is a combination claim, and each element, or its equivalent, must appear in the infringing structure, is, of course, not questioned. Our examination of the exhibits, the models, as well as the evidence which describes appellee's structure, convinces us at once that the element referred to is missing in appellee's structure. Appellant seeks to read onto appellee's structure this necessary element by calling the so-called channel of angular cross-section on the inner surface of the inner wall 5, the "shoulder 8, 9, and an angular depression 11, 12, to receive respectively the outer and inner walls of the adjacent section." In doing this, appellant fails to appreciate the (263 F.) significance and the limitations of combination claims. In other words, he is asserting that a combination claim with five elements is infringed by a combination product of four elements, one of which does the work and therefore constitutes the mechanical equivalent of two separate elements in the former combination. Of course, this contention must be rejected, and the case could well be disposed of without further discussion. But an added reason for distinguishing the two structures is apparent. Patentee's specifications provide the outer wall with "a shoulder and an angular depression to receive respectively the outer and inner walls of the adjacent section." The specifications are supported by the drawings. Referring to the drawing, patentee says: "Numeral 1 designates the inner wall of a double wall hot air conduit, and 2 the outer wall thereof. By giving the wall 2 between the points 11 and 12 the angular directions, às clearly seen in Figs. 2 and 3, means are provided for directing the inner wall of the adjacent section a against the projection 13 so as to cause the projection to enter the depression 5 and to maintain it in that position after the parts are assembled." Figures 2 and 3, herewith reproduced, well illustrate the structure patentee had in mind. In appellee's structure, the downwardly and inwardly sloping walls for guiding and forcing the inner walls inwardly into locking engagement with the outer walls of the outer section are absent. Nor can infringement appear in a combination with this element lacking. Hav ing specifically provided the means whereby the sections may be locked, and scaled so to speak, appellant cannot eliminate the element by which his sealing is accomplished. Without extending the discussion further, we adopt the language of the District Judge, who in disposing of the case said: "When, therefore, it appears that Scherer gave both of these elements of his construction, not only an apparent, but a real, relation of indispensability; when, in other words, he sought to bring about, not only mere engagement, but an actual locking, of his section--he cannot have a scope to his claims which will comprehend structures from which one or the other element is eliminated, and, through such elimination, recur to the ordinary prior art structures, showing engagement by latching, but not positive locking." The decree is affirmed. DAVIS v. WILLEY. In re WILLEY. (District Court, N. D. California, Second Division. February 3, 1920.) No. 16147. 1. BANKRUPTCY 185-RIGHT OF ACTION OF TRUSTEE TO AVOID FRAUDULENT TRANSFER STATED. Bankruptcy Act, § 70e (Comp. St. § 9654), providing that "the trustee may avoid any transfer by the bankrupt of his property which any creditor of the bankrupt might have avoided, and may recover the property so transferred," merely vests the trustee with the same rights possessed by the creditor under the state law, and confers on him no additional rights. 2. LIMITATION OF ACTIONS 100 (3)-ACTION BY TRUSTEE TO AVOID FRAUDULENT TRANSFER BARRED BY LIMITATION. An action by the trustee to recover property transferred by bankrupt in fraud of creditors held barred by the three-year limitation of Code Civ. Proc. Cal. § 338, where the creditor in whose right the action was brought obtained knowledge of the facts of the transaction, clearly indicating fraud, more than three years prior to the suit. 3. LIMITATION OF ACTIONS 100 (13)-CONSTRUCTIVE NOTICE OF FRAUD. In actions based on fraud, where the rights of a party are dependent on his diligence in discovering the fraud, knowledge of facts which should put a reasonable man on inquiry invests the suitor in legal contemplation with full knowledge of all that such inquiry would have developed. At Law. Action by John C. Davis, trustee in bankruptcy by Charles F. Willey, against E. T. Willey. Judgment for defendant. J. C. Webster, of Sonora, and William H. Bryan, of San Francisco, for plaintiff. William E. Billings, of San Francisco, for defendant. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes (263 F.) VAN FLEET, District Judge. [1] This is an action at law by a trustee in bankruptcy to recover a certain fund alleged to have been transferred by the bankrupt to his brother in fraud of the rights of his creditors. It is admittedly prosecuted under the authority of section 70e of the Bankruptcy Act (Comp. St. § 9654), which provides that "The trustee may avoid any transfer by the bankrupt of his property which any creditor of such bankrupt might have avoided, and may recover the property so transferred, or its value, from the person to whom it was transferred," etc. It is well established that the effect of this section is to clothe the trustee with no new or additional right in the premises over that possessed by a creditor, but simply puts him in the shoes of the latter, and subject to the same limitations and disabilities that would have beset the creditor in the prosecution of the action on his own behalf; and the rights of the parties are to be determined, not by any provision of the Bankruptcy Act, but by the applicable principles of the common law, or the laws of the state in which the right of action may arise. In other words, the Bankruptcy Act merely permits the trustee to assert the rights which the creditor could assert but for the pendency of the bankruptcy proceedings, and if, for any reason arising under the laws of the state, the action could not be maintained by the creditor, the same disability will bar the trustee. Collier on Bankruptcy (10th Ed.) 1042 (f) and (g); In re Mullen (D. C.) 101 Fed. 413; Holbrook v. First International Trust Co., 220 Mass. 150, 107 N. E. 665; Manning v. Evans (D. C.) 156 Fed. 106. [2] The rights of the trustee being governed by these limitations, I am of opinion that the defense of the statute of limitations interposed by defendant must be sustained. That defense is based on section 338 of the Code of Civil Procedure of this state, fixing the limitations of time within which actions must be commenced, subdivision 4 of which provides: "Within three years: An action for relief on the ground of fraud or mistake. The cause of action in such case not to be deemed to have accrued until the discovery, by the aggrieved party, of the facts constituting the fraud or mistake." It appeared in evidence at the trial that in an action brought in the state court by the defendant here against the sheriff to recover property seized by the latter in satisfaction of a judgment theretofore recovered by McGinn, the creditor in whose right the present action is sought to be maintained, against C. F. Willey, the bankrupt, whose estate the trustee represents, and which was tried in March, 1914, if was disclosed by testimony given in the presence of McGinn and his counsel that pending that suit there had been a surreptitious, clandestine, and presumptively fraudulent transfer on the books of a local bank by the judgment debtor to his brother, this defendant, of a part of the same fund here sought to be recovered. This disclosure was of a character and the circumstances such as to put any reasonable man upon inquiry at the time as to the fraud, and to clearly indicate that an investigation would then have exposed to McGinn and his at |