may enter such waters; and it is further provided that such vessel shall not proceed farther inland, either to unload or take in cargo, without a special permit from such collector or deputy collector. So far as the record in this case discloses, the customs officers found this vessel, on its arrival from contiguous foreign territory, unreported, and without register, enrollment, or license, and without any means of determining its character or nationality. It was accordingly seized as forfeited for violation of law. It was manifestly impossible for the United States to furnish any further information in its libel concerning this vessel; and, in the absence of a claim, and evidence in its support, showing that it was entitled to exemption under some statute of the United States, I do not see how it can be held exempt. I am not able, therefore, to say that the libel does not state facts sufficient to entitle the United States to maintain the action. LEE YUE v. UNITED STATES. (Circuit Court of Appeals, Ninth Circuit. October 3, 1904.) No. 1,025. 1. CHINESE EXCLUSION-ORDER OF DEPORTATION-SUFFICIENCY OF EVIDENCE. The judgment of a District Court affirming an order of a commissioner directing the deportation of a Chinese person held sustained by the evidence, under the rule established by the exclusion acts, which casts upon the defendant in such cases the burden of proving his right to remain in this country. Appeal from the District Court of the United States for the Northern District of California. Henry C. Dibble & Dibble, for appellant. Duncan McKinlay (Marshall B. Woodworth, U. S. Atty. of counsel), Asst. U. S. Atty. Before GILBERT, ROSS, and MORROW, Circuit Judges. ROSS, Circuit Judge. In view of the rule that obtains in cases of this character, we are unable to say that the District Judge erred in affirming the order of the commissioner directing the deportation of the petitioner. See United States v. Wong Dep Ken (D. C.) 57 Fed. 206; United States v. Lung Hong (D. C.) 105 Fed. 188; United States v. Chun Hoy, 111 Fed. 899, 50 C. C. A. 57; United States v. Chu Chee, 93 Fed. 797, 35 C. C. A. 613; United States v. Yong Yew (D. C.) 83 Fed. 832; United States v. Ah Chung (C. C. A.) 130 Fed. 885; Li Sing v. United States, 180 U. S. 486, 21 Sup. Ct. 449, 45 L. Ed. 634. The judgment is affirmed. SPENCER et al. v. BERTRAND. (Circuit Court of Appeals, Ninth Circuit. October 3, 1904.) No. 1,052. 1. COLLISION-BARGE LYING AT DOCK-NEGLIGENT MANAGEMENT OF RAFT. The finding of a trial court that an injury to a barge while lying at a wharf in the Willamette river was due to the negligent navigation of a steamboat towing a raft of logs, by reason of which the raft struck the barge, held sustained by the evidence. Appeal from the District Court of the United States for the District of Oregon. J. C. Moreland, for appellants. Wm. T. Muir, R. R. Giltner, and Veazie & Freeman, for appellee. Before GILBERT and ROSS, Circuit Judges, and HAWLEY, District Judge. HAWLEY, District Judge. This is a libel in admiralty to recover damages for injuries received to the barge of appellee by the alleged negligence of appellants. It is alleged that the steamboat Charles R. Spencer was towing a raft of logs up the Willamette river, and handled the raft so negligently that it was thrown against Mr. Bertrand's scow and sunk it. The court, upon the testimony, found that the "libelant was on the 30th day of October, 1901, the owner of the barge described in the libel, and that on the evening of the said day, while said barge was lying at the landing slip on the east side of the Willamette river, in Portland, Oregon, at the north end of the dock of the Portland Flouring Mills Company, where said barge had a good right to be, the said barge was struck and injured by a raft of logs then and there being towed up the Willamette river by the steamboat Charles R. Spencer-said raft of logs being about 780 feet in length and 50 feet in width, and being towed by a hawser about 900 feet in length"-and that "said collision and injury were caused by the negligence, inattention, and want of proper care and skill on the part of the steamboat Charles R. Spencer, her master and crew, and through no fault, omission, or neglect on the part of said. barge or the libelant," and assessed the damages at $113.50 and $67.16 costs. It is claimed in the assignments of error that the court erred in making these findings and in entering the judgment. The argument of appellants is that it was a physical impossibility, from all the testimony, for the injury to have been occasioned to the barge or scow of the appellee. There were several theories advanced by the defendants in the court below as to how the injury might have occurred. At the close of the testimony the court said: "There is only one conclusion that can be reached as to how this accident occurred, consistent with the testimony and the physical facts shown to exist in the case. Upon the testimony offered for the defendant, I should think it impossible for such an accident to have occurred, were it not for the fact that it did occur. * I don't see any other way for it. There is another thing about it-another fact to be considered in this connectionand that is well established, I think. That is the fact that the barge was swung around upstream. Something must have pulled that barge upstream at that time. The night watchman found her in that condition. What did it? It must have been the same accident that caused the staving in of those boards that swung the barge upstream. So my conclusion is that the tug Spencer is responsible for the accident." There was a controverted question as to the damages. It was difficult to find out the precise amount of damages from the repairs made. Upon this question the court said: "I take it that there were quite extensive repairs made on that barge, and that she came off the ways a great deal better than she was before the accident. The Spencer cannot be charged with all these expenses. The best I can do is to divide them between the parties." Appellee was the only witness at the trial who testified as to what actually happened. He testified that: "The Spencer passed by with the logs about, as near as I could judge, between five and six o'clock. Of course, I couldn't tell just exactly what time, but I know it wasn't over six, because it was just getting dark there and then. She towed up right along this channel, and then, when she got by us pretty well, she kind of swung over on the west side, and by doing so throwed the tail end of the raft-say about 300 feet of it, or such a matter as that; 200 feet, anyway, I should judge-throwed it right up onto the stern of the barge. Q. Did you see this? A. Yes, sir. Q. Where were you at that time? A. I was right on deck at that time it occurred. Q. On the deck of the barge? A. Yes, sir." He then described the course of the Spencer and the raft of logs from the time he first saw them until after the accident. In the light of the facts disclosed by the record, we are unwilling to say that the court erred in its findings, or that the judgment is erroneous. The judgment of the District Court is affirmed, with costs. UNITED BLUE FLAME OIL STOVE CO. v. SILVER & CO. (Circuit Court, E. D. New York. November 1, 1904.) 1. PATENTS-ANTICIPATION AND INVENTION-BLUE FLAME OIL BURNERS. The Ruppel patent, No. 616,425, for a hydrocarbon burner, construed, and held not anticipated, and to disclose invention. Claims 6, 7, and 8 also held infringed. 2. SAME-INFRINGEMENT. The Jeavons patent, No. 617,291, for a burner, held not infringed. In Equity. Suit for infringement of letters patent No. 616,425, for a hydrocarbon burner, granted to Henry Ruppel December 20, 1898, and No. 617,291, for a burner, granted to William R. Jeavons January 3, 1899. On final hearing. Herbert H. Gibbs (A. S. Pattison, of counsel), for complainant. THOMAS, District Judge. The complainant is the assignee of certain letters patent, viz., letters No. 616,425, issued on December 20, 1898, to Ruppel, and letters No. 617,291, issued on January 3, 1899, to Jeavons. The defendant is alleged to infringe claims 6, 7, and 8 of the former and claims 22 and 23 of the latter. The defendant denies infringement, and alleges anticipation and absence of invention. The subject involves blue flame oil burners, and is of very considerable commercial and economic importance. Petroleum burned in a wick or other lighting device is converted to a vapor, which passes upward between two concentric tubes (herein called a "combustion chamber") so perforated as to admit air, which, uniting with the vapor, ultimately forms carbon dioxide gas, or carbonic acid gas, which burns upon, and after passing out of, the tubes. That is, air passing from within and without, through the perforations to the space within the tubes, unites with the vapor therein, forms a gas, which is consumed largely after escaping into the open air. As the gas springs into flame after leaving the tubes or combustion chamber, its useful duty is to liberate its heat advantageously in direct contact with the utensil or surface placed above it, without throwing off offensive odors or unconsumed and poisonous elements. If the flame burn steadily, and blue in color, desirable combustion is evidenced. If the flame be yellow, imperfection of combustion and injurious results in use are indicated. Hence the production of a steady blue flame is the appearance sought, and to attain it burners of varied constructions have been devised. There has been a variety of devices for hindering or wholly preventing the passage of air to the upper part of the inner tube, and for the passage of the air admitted to such tube into the combustion chamber or to the flame. The uninterrupted passage of air through the whole length of the inner tube with a uniform opportunity to escape through its perforations into the combustion chamber would be injurious to the result desired. It is understood that the vapor, mingling with the air in the inferior part of the combustion chamber, and becoming gas, tends to reach the point. of combustion as it rises, and that such combustion would take place disadvantageously within the tubes, rather than beneficially at the exit thereof, if the air supplied to the upper portion of the combustion chamber were not limited. Also, its increasing heat as the gas ascends tends to destroy the inner tube. Ruppel combined with the perforated tubes a chamber in the upper portion of the inner tube, closed the upper end with a cap and the lower end with a perforated partition or diaphragm; and to keep the upper inner sides of the inner tube cool Jeavons, among other things, provided for a partition or diaphragm with serrated or perforated edges, and located it below the upper end of the inner tube. Ruppel concluded, from the blue flame produced, and other favorable conditions, that there was an advantage in his device. Apparently he adjusted mechanical elements to facilitate phenomena that were recognized proof of a valuable result. Hence he invented, if anything, means to aid a known and desirable result. The most that can be claimed for him is that he provided for parts and such mechanical adjustment thereof as would aid to cause proper combustion at an opportune location. But what did Ruppel construct, and what does he claim? The following figure illustrates it: "(6) In a burner, perforated tubes forming a combustion-chamber between them, two walls with a space between them spanning the bore of the inner of said perforated tubes and forming an air-chamber at the upper end thereof, means for supplying a limited volume of air to said chamber, and openings from said chamber for the escape of air, substantially as described. "(7) In a burner, an outer and an inner perforated tube forming a combust ion-chamber, a cap and a partition at the upper end of the said inner tube separated and forming an air-chamber between them, and means for supplying air to said air-chamber, substantially as described. "(8) In a burner, an outer and an inner perforated tube forming a combustion-chamber, an air-checking partition in the upper. end of the inner tube having an opening for the passage of a limited quantity of air, and a cap above and separated from said partition, substantially as described." While there is some difference in the phraseology of the claims, Ruppel's conception embraced two perforated tubes, forming within them a combustion chamber, the closing of the inner tube at the top 133 F.-4 |