which property he holds for the benefit only of those creditors who prove their debts within a fixed period, their right to participate "in the distribution of it thereby becoming vested. All other creditors are excluded from any share of the assigned estate, but their rights are not otherwise affected. By the plain terms of the statute, as well as by repeated judicial exposition of it, the participating creditors are barred of any suit, in law or equity, against the assignee, except in respect of the property upon which the assignment operates. He is protected against persona,} liability to them, his future acquisitions are unavailable to them, and in every beneficial and practical sense the relation of debtor and creditor between them ceases to exist. It follows, therefore, that if the title of the voluntary assignee to the property conveyed by the assignment is indefeasible by the assignee in bankruptcy, the creditors who proved their claims under the assignment could not pass a valid resolution of composition. This depends upon the effect of the thirty-fifth section of the original bankrupt act, which has been divided into sections5128 and 5129, in the Revised Statutes. The first of these sections (5128) avoids preferences to creditors, when made within four months' before the date of proceedings in bankruptcy; and the latter (5129) avoids all conveyances made in violation of the provisions of the bank·· rupt act within six months of the date of such proceedings. It is only necessary to say, in reference to the act of June 22, 1874, that it is inoperative in this case. Its abbreviation of the period within which preferences and conveyances in. violation of the bankrupt law may be avoided is expressly limited to cases of inVOluntary bankruptcy, leaving the original enactment unchanged in all cases of voluntary bankruptcy. I think there is no reason to doubt that the voluntary assignment here does not fall within the class of preferences to which section 5128 of the Revised Statutes exclusively applies, and which are avoidable when made within !o''.Ji1' months before the date of proceedings in bankruptcy. By the terms of the state law under which it was made all the property of the assignor vests in his assignee for the equal benefit
IN THE MATTER OF HENRY TROTH.
of all his creditors, and the right of dl the creJitors to participate in it, without discriminating conditions, is recognized and secured. But, inasmuch as the state law imposes restraints upon the right to participate in the distribution of the asssigned estate which f!.re inconsistent with the bankrupt act, and so changes the course of their administration under the latter act, it is a "conveyance in violation of the provisions of the bankrupt act," and is thus brought within the scope of section 5129. For the avoidance of such conveyances six months are allowed by that statute. This classification of the assignment in question is sustained by the opinion of the supreme court in Mayer v. Hillman, 1 Otto, 496. In that case it was held that a voluntary assign¥1ent, under the laws of Ohio, for the equal and common benefit of all the creditors of the assignor, is not fraudulent, and if voidable it must be because it may be deemed necessary for the efficiency of the bankrupt act that the administration of an insolvent's eatate shall be entrusted to the direction of the district court. and not left under the can. trol of the appointee of the insolvent, and hence that pro-ceedings to avoid such an instrument may be commenced within six months. And such is the import of other decisions of the same court. As the proceedings in bankruptcy in this case were bigun within six months after the date of the VOluntary assignment, that instrument was not then indefeasible, but might have been declared invalid at the instance of an assignee in bankruptcy. The creditors who proved their debts under the vol. untary assignment, therefore. still sustained that relation to the bankrupt, and were competent to vote upon a composition resolution. As that resolution was lawfully adopted, it was properly approved by the district court, and the bill must, therefore, be dismissed, with costs.
BABCOCK V. JUDD
February 23, 1880.)
(Circuit Court, D. Oonnecticut.
PATENT-NEW COMBL.'<ATION NEW INGREDIENT-GILL Y. 'VEI,I,S,
21 Ivall. I.-The substitution of a new ingredient in a patented combination of old ingredients does not constitute an infringement.
Bill in Equity for alleged iufringement of letters patent. Charles E. Gross, for plaintiff. Ckarles E. Mitchell, for defendants. J. This is a bill in equity founded upon the alleged infringement of letters patent for an improved window-spring catch, or sash-holder, which were issued to Frank. lin Babcock on September 29, 1868. The plaintiffs are the owners of the patent. The patented device consists of a cylindrical shell or socket, having a screw cut upon its outer periphery, into which socket is inserted, through an opening in the outer end, a sliding' bolt. The bolt consists of a slender stem within the socket, and a sliding shoulder and thumb flange, which are exterior to the socket. Around the stem is a spiral spring, acting between the bottom of tee socket and the sliding choulder. The stem passes through a whole in the bottom of the socket, and is riveted at the end so as to limit outward movement. The hole acts as a necessary bearing for the stem, which is of small diameter as compared with the shell. By means of the thumb flange the sliding bolt is pressed against the spring. The whole is adapted to be screwed into the jamb of a window-frame, so that the thumb latch shall extend outward in front of the sash, and the angle of the bolt shall be so placed that it can enter into notches in the side of the sash to hold the window, and can be released by pressing back the bolt by means of the thumb flange. The invention consisted merely in the combination of the different elements, all of which were old. The same form of bolt was manufactured many years ago in New Britain. The claim is for "the combination of the screw socket A, sliding
shoulder B, with flange 0, stem a, and spring b, all as and for the, purpose set forth." The plaintiffs endeavor to have the claim construed .to mean the combination of screw socket, a sliding bolt provided with a thumb pad and stem, and the spring, so that sliding bolt, if provided with a thumb pad and a stem or leg of any sort, would be included within the patent. This is not the obvious meaning or the claim or' of the specification. The specification describes the stem with more particularity than the patentee used in regard to the other parts of the combination. Indeed, but little description of the elements of the device was necessary or was given, as the different parts were well known, and were clearly shown in the drawings. The patentee intended to claim the combination of screw socket, sliding shoulder with flange, stem a, (the last two elements constituting a well-known form of bolt,) and the spring. The stem is made, in the patent, as important a member of the combination as any other. This combination was novel and useful. It is admitted that the defendants have infringed the patent by the manufacture and. sale of articles like Exhibit 4, which arE' the plaintiff's catch with a double stem. The defendants have aiso made and sold articles which were known upon the trial as Exhibit 5. The question in the case is whether the' form of sash-holder is an infringement. The catch consists of a cylindrical screw socket, the bottom of the socket having no hole. The bolt has the plaintiff's sliding shoulder and thumb pad, but the defendants have, with a gooa deal of ingenuity, made a somewhat clumsy new hub or stem in place of stem A. Instead of the slender, round stem, whose diameter is no larger than the thickness of the shoulder, the diameter of the defendants' hub is greater than the thickness of the bottom of the bolt, whereby two shoulders are formed at the junction of the body and hub, which shoulders enlarge the bolt at that point so that movement outward or toward the window is limited. The hub has a socket, to receive the spring, and its inner end has four radial arms or prongs, which extend outward far enough to span substa.n-