WOOLLEY, Circuit Judge. The bankrupt petitioned for a discharge. The appellant creditors, having demanded of the bankrupt the payment of their claim in full and being refused, opposed the discharge upon specifications under section 14b (2) (4) of the Bankruptcy Act (30 Stat. at Large, 544), as follows:

That the bankrupt, with intent to conceal his financial condition, (1) failed to keep certain books of account, and (2) destroyed certain records, from which such condition might be ascertained; and (3) concealed a part of his property with intent to hinder, delay and defraud his creditors.

The master found (1) that the bankrupt failed to keep certain books but not with intent to conceal his financial condition, and that from the records kept, his financial condition could be ascertained; and (2) that the bankrupt destroyed certain loose slips on which he had entered memoranda of personal and business expenses, which after bankruptcy he classified and copied into a book; that the book was produced with full explanation of the entries, and that the slips were not destroyed with intent to conceal his financial condition. And finally the master found, (3) in the entire absence of evidence upon the subject, that the bankrupt had concealed no part of his property with intent to hinder, delay and defraud his creditors; and, therefore, recommended his discharge.

The District Court affirmed the report of the master and ordered the discharge of the bankrupt. This is an appeal from that order.

[1] In determining whether the bankrupt had offended against the provisions of the Bankruptcy Act in failing to keep certain books and in destroying certain slips, the master found that the objecting creditors had failed to prove the essential element of the offense that the acts done and omitted by the bankrupt were with intent to conceal his financial condition, and accordingly recommended the discharge of the bankrupt under authority of the cases which hold that:

"Where a creditor seeks to prevent a discharge, on such ground (failing to keep books), the burden is on him, not only to show that the bankrupt failed to keep books of accounts, but that his omission was with intent to conceal his financial condition." In re Garrison, 149 Fed. 178, 79 C. C. A. 126; In re Marcus (D. C.) 192 Fed. 743; In re Miller, 212 Fed. 920, 129 C. C. A. 440; In re Brockman (D. C) 168 Fed. 1015; In re Burstein (D. C.) 160 Fed. 765; In re Haskell (D. C.) 164 Fed. 301.

The District Court cannot be charged with error of law in affirming the finding of the master based upon this rule.

[2] The findings of fact by the master and affirmed by the court are presumptively correct and will be upheld on appeal, if supported by substantial evidence, or unless a clear mistake is shown. Epstein v. Steinfeld, 210 Fed. 236, 127 C. C. A. 54; Coder v. Arts, 152 Fed. 943, 946, 82 C. C. A. 91, 15 L. R. A. (N. S.) 372; Ohio Valley Bank v. Mack, 163 Fed. 155, 89 C. C. A. 605, 24 L. R. A. (N. S.) 184; Wilson v. Continental B. & L. Asso., 232 Fed. 824, 147 C. C. A. 18. We discern no mistake in the findings of fact. As they are substantially supported by the evidence, we are not inclined to disturb them.

The decree below is affirmed.

(236 Fed. 345)

REED V. ANDERSON et al.

(Circuit Court of Appeals, Eighth Circuit. October 5, 1916.)

No. 4607.

APPEAL AND ERROR 744-PERFECTION OF APPEAL-FILING ASSIGNMENT OF ERROR.

Where an appeal was granted on August 17th, and the supersedeas bond approved and filed August 27th, but no assignment of error was filed until September 25th, the appeal will be dismissed for noncompliance with rule 11 of the Circuit Court of Appeals, Eighth Circuit (91 Fed. vi, 32 C. C. A. lxxxviii), declaring that plaintiff in error or appellant shall file with the clerk of the court below, with his petition for a writ of error or appeal, an assignment of errors; the assignment of errors not being filed with or before the supersedeas bond, so as to come in time.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 30433048; Dec. Dig. 744.]

Appeal from the District Court of the United States for the District of New Mexico; Wm. H. Pope, Judge.

Action between Mary A. Reed and Lucy M. Anderson and others. From a judgment for the latter, the former appeals. Appeal dismissed.

Homer S. Hurst, of Oklahoma City, Okl., E. P. Davies, of Santa. Fé, N. M., and Victor A. Sniggs, of Oklahoma City, Okl., for appel

lant.

Reed Holloman, of Santa Fé, N. M., for appellees.

Before SANBORN, Circuit Judge, and TRIEBER and VAN VALKENBURGH, District Judges.

TRIEBER, District Judge. The appeal in this case was granted and filed in the office of the clerk of the District Court on August 17, 1915. The supersedeas bond was approved and filed August 27, 1915, but no assignment of errors was filed until September 25, 1915. On that day counsel for appellant filed a motion to have the assignment of errors filed nunc pro tunc as of August 17, 1915, the day the appeal was granted. A hearing was had on this motion, and by the court denied.

In view of the settled rule of this court the merits of this case are not before us. In Webber v. Mihills, 124 Fed. 64, 59 C. C. A. 578, this court held:

"Attention has been sharply called to this rule (Rule 11, C. C. A., Eighth Circuit [91 Fed. vi, 32 C. C. A. lxxxviii]) and the announcement has been plainly made that it would be enforced, although in the earlier cases the errors assigned were carefully examined, that no injustice might result from an unexpected application of the rule [citing cases]. But in the later cases the rule has been steadily and uniformly enforced [citing cases]. The assignment of errors in this case was not filed until seven days after the allowance of the appeal, and the appeal must be dismissed under rule 11."

This rule has been steadily enforced by this court ever since. Lockman v. Lang, 128 Fed. 279, 62 C. C. A. 550; Simpson v. First National Bank, 129 Fed. 257, 68 C. C. A. 371. The same practice prevails in other circuits. Mutual Life Ins. Co. v. Conoley, 63 Fed. 180,

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

11 C. C. A. 116 (Fourth Circuit); Mast & Co. v. Superior Drill Co., 154 Fed. 45, 83 C. C. A. 157 (Sixth Circuit).

Had the assignment of errors been filed on or before the filing of the supersedeas bond, it would have been sufficient. Simpson v. First National Bank, supra. But it was not filed until 29 days after the bond had been approved and filed.

The appeal must be dismissed; and it is so ordered.

(236 Fed. 346)

WATSON FIREPROOF WINDOW CO. v. BIERSACH & NIEDERMEYER CO. (Circuit Court of Appeals, Seventh Circuit. June 7, 1916.)

No. 2299.

PATENTS 328-VALIDITY-ANTICIPATION.

The Watson patent, No. 702,754, for improvements in windows, the distinctive feature of which was that the fixed part of the bar or muntin against which rest adjacent panes of glass is a flat surface, so that in glazing either pane can be slid across the same, and when both are in place are held apart by a rib along the middle of the movable part of the bar or muntin which, when in position, holds the panes in their relative and proper places, held not to show invention, being anticipated by disclosures of other patents shown in the prior art.

Appeal from the District Court of the United States for the Eastern District of Wisconsin; Ferdinand A. Geiger, Judge.

Bill by the Watson Fireproof Window Company against the Biersach & Niedermeyer Company. From a decree for defendant, complainant appeals. Affirmed.

The following is the opinion of Geiger, District Judge, in the trial

court:

Complainant filed its bill, charging defendant with infringement of letters patent No. 702,754, granted June 17, 1902, to Watson, and assigned to it. The invention relates to "improvements in windows," and "more particularly to fireproof windows of that class which have their frames and casings made of sheet metal," and its object is "to provide an improved construction for securing the glass in place in the windows of this character." The invention is thus described in the drawings and specifications, omitting therefrom matters of detail:

"In the drawings, Figure 1 is a front elevation of a metal window constructed in accordance with my invention and comprising a lower stationary and an upper pivoted or swinging sash, to both of which my improvements are applied. Fig. 2 is a sectional side elevation thereof. Fig. 3 is a top plan section taken through the stationary sash on line 3 3 of Fig. 1. Fig. 4 is a top plan section taken through the swinging sash on line 4 4 of Fig. 1. Fig. 5 is a fragmentary perspective view, indicating the manner of inserting the glass in the sash. Figs. 6, 7, 8, and 9 are top plan sections further showing the manner of inserting the glass in the sash.

ner.

"In said drawings, A designates the rectangular outer casing of the window which is designed to be built into the wall of the building B in the usual manThis casing is herein shown as divided by a transverse bar a into upper and lower sections, of which the upper section is in this instance provided with a swinging sash C, while the sash D of the lower section is made fixed or stationary. It will, however, be understood that in so far as the present invention is concerned it is immaterial whether the window casing comprises one or more sections, or whether the sash of any section is fixed or is arranged to slide or swing, my improvements being equally applicable in either case.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

"Extending around the inner margin of each sash is a groove 1, made of suitable width to receive the edges of the panes of glass G and of a depth desirably about equal to its width, except along the upper edge of the sash, where the groove takes the form of an open slot 2, into which the glass may be thrust considerably farther than the distance which it normally occupies when in place, Figs. 2 and 5.

"The glass G for each sash is provided in a plurality of panes-in this instance two-the aggregate width of which is made somewhat less than the extreme inner width of the sash from the bottom of the groove 1 on one

side to the bottom of the same groove on the other. This permits the glass to be inserted by proceeding in the manner indicated in Figs. 5 to 9, inclusive. The upper edge of the first pane is slipped angularly up through the slot 2, as shown in Fig. 5, and the whole pane is then swung into a vertical position and slipped down until its lower edge enters the groove 1 at the bottom of the sash. The pane then occupies a position such as is indicated in Fig. 6 and