brances as would have affected it had no adjudication in bankruptcy been made. While the' rights of creditors whose executions preceded the bankruptcy were properly adjudged to be superior to any which passed to the assignee by operation of law, the balance of the fund, after satisfying those executions, belonged to the mortgagee, and not to the assignee for the purposes of his trnst. The latter, representing general creditors, cannot dispnte such claim, since, had there been no adjudication, it could not have been di!!puted by the mortgagor. '1'he assignee can assert in behalf of the general creditors no claim to the proceeds of the sale of that property which the bankrupts themselves could not have asserted in a contest exclusively between them and their mortgagee. As between the mortgagee and the mortgagors the chattel mortgages were and are unimpeachable for fraud, or upon any other ground recognized in the bankrupt law." An unrecorded chattel mortgage and a bill of sale, when each is unaccompanied by an immediate and continued change of possession, are in the same predicament, and jf the assignee can assert no rights against the mortgagee in the one case, he can assert none against the vendee in the other. It results, in the case at bar, that even if the delivery of the property sold to the' defendant was not accompanied by the actual and immediate delivery as required by law, the assignee can maintain no claim founded on that circumstance. Judgment for defendant.
In re BLACKMORE, Debtor.
(District Court, W. D. Penns';;lvania. ,March, 1882.\
COMPOSITION WITH CREDITORS-ON WHOM NOT Br"'DING.
A creditor whose name did not appear in the statement of the debtor 01' otherwise in composition proceedings, and whose debt was not mentioned, is not bound thereby.
SAME-STATUS OF CREDITOR.
Such creditor, more than six years after final confirmation of the composition, presented his petition to compel mortgage trustees, under the composition, to settle an account. Held, that he had no status to maintain such petition, having no interest in the trust.
In Bankruptcy. Sur petition of Martin Lutz, filed June 11, 1881, and motion to dismiss the same.
IN RE BLA.CKMORE.
Morton Hunter and J. Scott Ferguson, for petitioner. Malcolm Hay, for debtor. ACHESON, D. J. These proceedings originated in a creditors' petition against Thomas J. Blackmore, filed October 24, 1874. 'fhere was, however, no adjudication, the debtor having offered terms of composition, which were accepted. By the order of December 4, 1874, directing that the resolution be recorded, etc., it was adjudged that the composition" shall be binding on all the creditors whose names and addresses, and the amounts of the debts due to whom, are shown in thtl statement of the debtor as produced at the meeting at which the resolution was passed." This was in accordance with the provisions of the statute, which also expressly enacts that a COlliposition "shall not affect or prejudice the rights of any other creditors." Now the debtor's statement made no mention of Martin Lutz, or the debt now alleged to be due him; nor does his name appear in the schedules or otherwise. His first connection with the proceedings was when he filed his petition, on June 11, 1881. That he was not bound or affected in anywise by the composition is certain. What right, therefore, has he to interfere in this summary manner, to bring Messrs. Everson and Smith to an account? He is not u a person interested" in the composition, within the meaning of the act of congress. In short, he is a stranger to the composition. Everson and Smith were not appointed trustees in bankruptcy under section 5103, Rev. St. They were merely mortgagees in trust for those creditors who were parties to the composition, either by active participation in the proceedings, or by legal intendment. Lutz is no such party. To him the trust mortgagees owe no duty. Moreover, to admit him now to participate with the creditors named in the debtor's statement in the proceeds of the mortgages, would be a great injustice to those creditors, for in accepting the composition they acted in ignorance of his claim. If Lutz had any remedy in this court he lost it by his gross laches. His attempted intervention, on June 11, 1881, was too late for any purpose. I may add that it does not appear that the mortgage trustees real· ized anything from the property of Blackmore himself. If they have any moneys in their hands they came from the wife's estate, pledged to secure the composition. This was admitted rtt the argument. In that fund Lutz never had any interest. Tile wife's property was not mortgaged for his benefit. I express no opinion upon the first and second reasons assigned in,
'Support of the motion to dismiss the petition of Lutz. But the third reason, which I have discussed, must prevail. And now, March 25, 1882, it is ordered and adjudged that the petition of Martin Lutz be dismissed, with costs.
and another v.
(Circuit Oourt, D. Oonnecticut. February 22, 1882.)
Where the infringing device was intenrIwl to B device which made two years before the date of the iuvlJutioll it was not an infringement, and the libel will be dismissed.
Francis O. Nye and Horace Barna1'd, for plaintiffs. Oharles E. Perkins and Ohauncey Smith, for defendant. SHIPMAN, D. J. This is a bill in equity, founded upon letters patent granted to William D. Andrews, March 15, 1870, and now <owned by the plaintiffs, for an improvement in friction wheels, or gearing for communicating motion. The defendant has manufactured since March 15, 1870, for the Calumet & Hecla Mining Company, friction wheels substantially the same as those described in the first claim of the patent. The mining company is the real defend·ant in the case. So much of the invention as is included in the first claim was described in the specification as follows:
"My improvement has reference to friction wheels having annular teeth or grooves extending around their peripheries fpr the purpose of communicating motion; such wheels, when geared together, fitting by their annular teeth and grooves, the one into' the other. These wheels, as heretofore constructed, have been but little used, and are objectionable, owing to the fact that the ends of the teeth traveling faster than their base, and the ends of the teeth ·on one wheel being in contact with the bases of those upon the other, a dragging, sliding, or cutting friction results, which not only consumes a large amount of power without useful effect, but causes great and unequal wear upon the teeth, diminishes the useful frictional surface in contact, .and rapidly destroys the wheel. If the teeth are made full cones in their transverse section, as is ordinarily done, the points will soon bottom and prevent the contact of the sides, and if, as is sometimes done, the points of the teeth are shortened, the sides of the points wear into the bases and eventually form new bottoms, on which they roll, thereby preventing the contact of the .sides. In my invention the teeth are comparatively short, which reduces the