loaded with the machinery, and that, when a vessel of this kind is laid up, the seams above the water line open up.

Appellant has endeavored to show that the barge was in good condition by producing Maikell, an insurance inspector, who inspected her about two years before the accident. This witness also testified that the barge was insured at the time she was sunk; but his evidence has no probative force on that point, as he was not then employed by the underwriters. He also testified that it was usual to inspect barges of this kind at least once a year; but there is nothing to show that this barge was in fact inspected within that time, nor is it shown that any repairs were made on her after her inspection two years before.

[1, 2] The law regarding towage is well settled. The tug is not a common carrier, and not an insurer, but is bound to exercise ordinary care and to display competent seamanship in the handling of the tow. The tug is not responsible for accidents occurring through the unseaworthiness of the tow for the intended voyage, unless her unseaworthy condition is disclosed, or is so apparent that it would be negligent of the tug to attempt to proceed.

[3] On the record before us, there could be no criticism of the seamanship of the captain and crew of the tug. The tug could not have proceeded at any slower speed under the circumstances, and was entitled to rely upon the barge being sufficiently seaworthy for the contemplated voyage under ordinary conditions There was certainly no error in navigation in crossing the river and proceeding up the west bank, as it would have been an impossibility to go much further on the east bank, and there was no error of judgment on the part of the captain in deciding to proceed rather than to risk the danger of landing the barge or to turn about for that purpose. Further, it is probable that there was not sufficient difference in the force of the current at the time the barge sank to have caused the accident if she had been seaworthy. While some of the witnesses testify that it was immaterial whether the rake was watertight, there is other evidence that a rake of this sort is supposed to be watertight, and it is reasonable to suppose that, if it leaked, the weight of water accumulated in the rake would have the tendency to bury the head of the barge. Prior to the sinking, very little water had accumulated in the hull of the barge, not sufficient to cause apprehension on the part of any one on her or the officers of the tug

On the whole case, we must conclude that no negligence or bad seamanship was shown on the part of the tug, and that the accident was caused by the unseaworthiness of the barge. Entertaining these views, it is unnecessary to pass upon the defense that the cargo was towed at owners' risk. Affirmed.

MOELLER et al. v. SCRANTON GLASS INSTRUMENT CO., Inc.

Circuit Court of Appeals, Third Circuit. April 27, 1927.

No. 3555.

1. Patents 310(1)-Bill averring issuance of patent, after full compliance with statutes, to original and sole inventor, sufficiently alleged grant of patent (equity rule 25).

Bill averring that patentee, who was first, original, and sole inventor, and entitled to letters patent, having fully complied with statutes, patent was granted, held to sufficiently allege grant of patent, notwithstanding failure to show nonexistence of inventions for two years before application, in view of equity rule 25. 2. Patents 310(2)—Profert in pleading of letters patent made them part of pleadings.

In patent infringement suit, profert of letters patent in pleading made letters themselves part of pleadings.

3. Patents 310(1)-Bill showing patent issue, plaintiff's ownership, and defendant's infringement held not demurrable.

In patent infringement suit, bill averring patent issue, patent ownership by plaintiff, and advising defendant wherein there was infringement, held not demurrable.

In Error to the District Court of the United States for the Middle District of Pennsylvania; Albert W. Johnson, Judge.

Suit by August E. Moeller and others, doing business under the firm name of A. E. Moeller, against the Scranton Glass Instrument Company, Inc. On demurrer the bill was dismissed (14 F.[2d] 120), and complainants bring error. Reversed and remanded, with instructions.

Otto R. Barnett and Percival H. Truman, both of Chicago, Ill., for plaintiffs in error.

Reese H. Harris (of Knapp, O'Malley, Hill & Harris) and Jerome I. Myers (of Tinkham & Myers), both of Scranton, Pa., for defendant in error.

Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges.

relief," and in no sense could this defense matter, which the defendant had to prove, be aptly described as "an ultimate fact upon which the plaintiff asks relief." So, also, with regard to the assignment and consequent ownership of the patent. The bill avers that subsequent to the grant of said letters patent No. 1,177,128, "by an assignment in writing duly executed and recorded," and profert of which original assignment, or a duly certified copy thereof, plaintiff was vested with "all the right, title, and interest in, to and under said letters patent No. 1,177,128."

[3] On demurrer, therefore, the court had by these averments and proferts the ultimate facts of patent issue and patent ownership, which affirmatively and sufficiently would, in the absence of countervailing proof, show the plaintiff's right to recover infringed. And the averments of the bill specified and thus advised the defendant wherein infringement was alleged. The patent was for a hydrometer, and the bill specified two types of hydrometer, which the defendant made and sold in the city of Scranton by the name of "Simplex," "Kant Stick," and "Sturdy," as embodying and infringing certain specified and numbered claims. If these averred facts, patent issue, patent ownership, and patent infringement were proved as averred, and the defendant gave no countervailing defense, undoubtedly the plaintiff pleaded a sufficient case, and was entitled to recover, and in our judgment so construing and applying the rule in question is a step in furthering simplicity of statement, definition of issue, and information to the defendant.

The decree below will therefore be reversed, and the cause remanded, with instructions to reinstate the bill and proceed in due

course.

fixed by board under authority of section 904 was not paid till after expiration of 60-day period.

Appeal from Board of Tax Appeals.

John H. Weaver presented a petition for redetermination of a deficiency in the payment of income taxes to the United States Board of Tax Appeals, after David H. Blair, Commissioner of Internal Revenue, had notified him of the deficiency. The Board of Tax Appeals refused to mark the petition as filed within the statutory period, and petitioner appeals. Record returned to the Commission, with instructions.

Charles Evans Hughes, of New York City, and John E. Cupp, of Philadelphia, Pa., for appellant.

Mabel Walker Willebrandt, Asst. Atty. Gen., and Le Roy L. Hight and A. W. Gregg, both of Washington, D. C., for appellee.

Before BUFFINGTON, WOOLLEY, and

DAVIS, Circuit Judges.

This

BUFFINGTON, Circuit Judge. case involves a tax liability of John H. He made tax Weaver to the United States. returns of income for the years 1918, 1919, and 1920, and paid taxes due thereunder. Several years later an examination was made of such returns, with the result that on April 5, 1926, the Commissioner addressed to him at his residence in Montgomery county, Pennsylvania, a deficiency letter, stating the taxpayer was liable for additional taxes for the said years in the amount of $75,851.59. Section 274 of the Revenue Act of 1926 (44 Stat. 9) provides that, when any notice of a tax deficiency is thus given, "within sixty days after such notice is mailed (not counting Sunday as the sixtieth day) the taxpayer may file a petition with the Board of Tax Appeals for a redetermination of the deficiency" In pursuance of his statutory

ternal Revenue.

Circuit Court of Appeals, Third Circuit. April 27, 1927.

No. 3580.

Internal revenue 25-Petition for redetermining deficiency in income tax payment held properly filed within statutory period, notwithstanding nonpayment of filing fee (Revenue Act 1926, §§ 274, 904).

Petition for redetermination of deficiency in payment of income tax held properly filed, if in hands of Board of Tax Appeals within 60 days after Commissioner notified taxpayer of deficiency, in view of Revenue Act 1926, § 274 (44 Stat. 9), notwithstanding that filing fee

with the Board of Tax Appeals for a redetermination of the deficiency," Weaver prepared such petition, and on June 3, 1926, mailed the same by registered letter to the Board of Tax Appeals in Washington. A return registry receipt, which by its form provides for an acknowledgment by the addressee or its agent, shows that the letter was received on June 4, 1926, by the United States Board of Tax Appeals; the entries thereon being a rubber stamp bearing the words "United States Board of Tax Appeals" as "addressee," and signed by "J. W. Carr" as "addressee's agent." The petition

The case centers around what happened that day, which was within the statutory 60 days allowed the taxpayer to petition for redetermination. The board refused to retain the petition, and returned it to the taxpayer, calling his attention to the fact that it was not accompanied by a filing fee of $10. He thereupon inclosed the $10 and on June 9th had the paper with the $10 in the hands of the board, with the request that they mark his petition as filed on June 4th. This the board refused to do, retained his $10, and subsequently, on motion of the Solicitor of the Treasury Department, refused to make the filing date of his papers June 4th, but made them June 9th, which, of course, defeated his statutory right of appeal. It will be observed the question centers and narrows itself into what was done on June 4th, and the question involved is whether the petition of Weaver for redetermination of his taxes, aggregating $75,000, which was concededly in proper form and presented within the statutory 60 days, is properly denied, because it was not accompanied by a $10 filing fee. The board justifies its action by a rule which provides: "A fee of $10 is hereby imposed for the filing, after the enactment of the Revenue Act of 1926, of any petition. No such petition may be filed until such fee is paid to the board, nor will the filing of any petition be antedated to a time prior to the payment of such fee." This rule was adopted by the board on April 1, 1926. It was not published until May 20, 1926, some 12 days before this petition was filed, and neither the taxpayer nor his counsel had any knowledge of such rule until his rejected petition was returned to him. The contention of the taxpayer is that the statute which created the board's jurisdiction gave him 60 days within which he might file his petition, and that, having filed it within such time, statutory jurisdiction was conferred on the Board of Tax Appeals, and was invoked by him so that jurisdiction then and there accrued. On the part of the government it is contended that this rule was a proper exercise of the power conferred by section 904 of the act, which reads as follows:

"The board and its divisions shall have such jurisdiction as is conferred on them by title II and title III of the Revenue Act of 1926 or by subsequent laws. The board is 19 F. (2d)-2

It will thus be seen that the jurisdiction asserted by the taxpayer is one expressly created by the statute, and the contention of the government is that such statutory jurisdiction is subordinated to its rule, which denies jurisdiction unless the fee is paid when the petition is presented. If the government's contention is right, the taxpayer has lost his opportunity to have a redetermination by the board of his petition to revise. That the taxpayer has complied with the only requirement Congress expressly provided in the act, namely, that within "60 days after such notice is mailed (not counting Sunday as the sixtieth day) the taxpayer may file a petition with the Board of Tax Appeals for a redetermination of the deficiency," is clear. Is that jurisdiction shorn by the other jurisdictional requirement, which the rule has imposed on the taxpayer? Certain it is no such requirement was expressly enacted by Congress. The act in question did not impose any fine by amount, or any fine in fact. It authorized the board to impose a fee in an amount not in excess of $10, but it did not require, indeed, that any fee should be imposed.

Was it the intent of Congress, by this permissive language, to charge a fee, if the board saw necessary to do it, to limit or detract from the right expressly given the taxpayer by section 274 to file a petition within 60 days? We cannot accede to this contention. The action of Congress in allowing an appeal within 60 days was basic and jurisdictional. The act of the board in making the payment of a fee a condition precedent to the statutory appeal allowed by the act was not jurisdictional, but incidental and procedural, and in our judgment the attempt to make the statutory jurisdiction created by Congress dependent and subordinate to the procedural rule making prepayment of the fee jurisdictional is unwarranted.

In accordance with these views, the record will be returned to the Commission, with instructions to reinstate the petition, and mark it filed June 4, 1926, and proceed to its determination.

ALBERT PICK & CO. v. WILSON.

In re DEAN.

Circuit Court of Appeals, Eighth Circuit. April 12, 1927.

1. Bankruptcy

No. 7452.

184 (2%)-Where mortgage of fixtures was not properly acknowledged, and hence not properly recorded, mortgagee was not entitled to secured claim against trustee in bankruptcy of mortgagor (Code Iowa 1924, § 10015; Bankruptcy Act, $$ 47a, 67a, 67c [U. S. Comp. St. §§ 9631, 9651]).

Where chattel mortgage on restaurant fixcures and equipment, given to secure purchase price, was never properly acknowledged, and hence not properly recorded, mortgagee was not entitled to secured claim against trustee in

bankruptcy of purchaser under Code Iowa 1924, § 10015, and Bankruptcy Act, §§ 47a, 67a, 67c (U. S. Comp. St. §§ 9631, 9651). 2. Chattel mortgages 152, 194-Attempted transfer by chattel mortgage is incomplete as against lien creditors, until perfected by proper acknowledgment and recordation.

Attempted transfer of property by chattel mortgage is incomplete as against lien creditors, until perfected by a proper acknowledgment

and recordation of the instrument. 3. Bankruptcy 101, 152-Estate is in custodia legis from date of filing petition, and title of trustee relates back to and is determined as of that date.

Bankrupt's estate is in custodia legis from

of the United States for the Southern District of Iowa.

It appears that on or about July 1, 1920, Albert Pick & Co. sold to one Dean certain restaurant fixtures and equipment, and took in part payment thereof several notes, due serially, secured by a chattel mortgage on the fixtures, which was filed for record with the recorder of Washington county, Iowa. Three years thereafter Dean filed his voluntary petition in bankruptcy, and in his schedules listed this debt. He was adjudicated a bankrupt on April 28, 1923, and Pick & Co. filed their claim as a secured debt for $1,145.68 as the balance due. The amount is not disputed. The trustee, however, objected to the claim as a preferred claim on two grounds: First, that the chattel mortgage upon which the claim for priority was based showed on its face, and in fact was never properly acknowledged, proved, or recorded as required by the lex loci; and, secondly, that, for the reasons already stated, the instrument was not eligible to be filed for record, and could not be legally filed, and therefore as to the trustee was invalid and of no force or effect.

The referee sustained the objections and allowed the claim as that of a general claim only. A petition for review having been

his rights and remedies, relate back to and are determined as of that date.

4. Bankruptcy 9 (2)-Courts

~97(5)

Bankruptcy Act controls state statutes, and state courts follow federal courts in dealing with questions arising thereunder.

Provisions of federal Bankruptcy Act (Comp. St. §§ 9585-9656) are paramount to any state statute, and state courts follow deci

sions of the federal courts in dealing with questions arising under that law.

Appeal from the District Court of the United States for the Southern District of Iowa; Martin J. Wade, Judge.

In the matter of the bankruptcy of Ernest Dean; Carlton C. Wilson, trustee. From a decree denying priority to the claim of Albert Pick & Co., they appeal. Affirmed.

Bailey & Baldrige, of Washington, Iowa, for appellants.

Edmund D. Morrison, of Washington, Iowa, for appellee.

Before STONE and VAN VALKENBURGH, Circuit Judges, and SYMES, District Judge.

SYMES, District Judge. This is an appeal in bankruptcy from the District Court

Court to a special master to determine and report the facts and his conclusions. It is conceded that the chattel mortgage was never acknowledged, and under the state statute was not entitled to be recorded. The master was of the opinion that the 1910 amendment to section 47a of the Bankruptcy Act (Comp. St. § 9631) gave the trustee no additional rights whatever than he had under the prior law, unless some creditor had actually obtained a lien by levy thereon, and that in case such a lien had been so obtained its validity in Iowa would depend upon whether the creditor obtaining it had actual notice, prior to the levy, of the existence of such a He accordingly recommended mortgage. that the finding of the referee be reversed and the claim for priority be allowed.

On exceptions to the master's report, the. lower court held that section 47a, as it now stands, did not require that a lien should actually have been established; that it gives the trustee the status of that of a lien creditor at the mement the bankruptcy petition was filed, with the right to procure a lien by execution or attachment if the property was still in the hands of the bankrupt, and accordingly affirmed the finding of the referee. Pick & Co. bring the case here on appeal.