OpenJurist

586

FEDERAL REPORTER.

the defendant had made a formal appearance, independent of the application for removal, he could have objected to the service of process, is a question it is not necessary to decide here. For the reasons already given the service of the summons in this case must be set aside. See Plimpton v. WiU8low, 9 FED. REP. 365.

In

,.6 LLOYD,·

(Di8trict Oourt, W. D. Pennsylvania. April 22, 1882.)
1. BANKRUPTOy-SALE BY AsSIGNED.

Where assignees in bankruptcy made a Jumping sale of the bankrupt's real estate, which should have been sold in s.eparate parcels in accordance with a t.ownplan, and by reason of. such mistake in the manner of sale the property was greatly sacrificed, the court will set aside such sale even after confirmation, no deed having been executed.
2. B.um-Il'lDEMNIFICATION.

But the purchaser having acted in entire good faith. should be fully and. libemIly indemnified for all damages, costs, and expenses to which he has been sUbjected, and the order setting aside the sale will be conditioned upon his indemnification.

In Bankruptcy. Sur petition of assignees to set aside sale of real ","de to Christian Brenicka. :MYI'ge M. Reade and George SJ,I,iras, Jr., for assignees· . muel S. Blair, for purchaser. ACHESON, D. J. It is said by Mr. Justice Miller in Railroad 00. v. SJuUer, 5 Wall. 662, that "the act of confirming or setting aside a sale made by a commissioner in chancery often involves the exercise of judgment and discretion as delicate as that called for by any function . which belongs to the court." Of the truth of this observation I have had lively experience in dealing with the case. The evidence i·upresses me with the good faith of Mr. Brenicka from first to last, and were this a contest simply between him and the assignees personally, I would refuse to interfere with the sale, in view of all the circumstances. But the real parties on the side of the petition are the innocent creditors of the bankrupt. Notwithstanding the want of precision in the petition, and the confusion which characterizes the testimony taken to support it, one fact is plain. viz.: that the made at lumping sale of 21 acres of

IN BE LLOYD.

ground lying within the limits of Altoona, constituting part of the general city plan, and divided into blocks by the avenues, streets, and alleys of the plan. This was the real mistake the assigpees made. The court would not have authorized the sale of this property by the acre nor confirmed the sale, had the facts been disclosed. The register reports that (exclusive of highways) the blocks are Busceptible· of such subdivision into ordinary city lots as to gi"Ve five lots to the acre, and that these lots were worth at the time of the sale $100 each. Perhaps this estimated value is too high, but the uncontradicted evidence tends to show that the property was greatly sacrificed by reason of the improper manner in which it was sold. The loss to the creditors is apparently so very great that a sense of duty to them constrains me to take off the confirmation and set aside the sale. I have no doubt of the power of the court to set .aside a sale even after confirmation, (no deed having yet been executed,) where it appears that the property has been sold at a great undervalue on account of such mistake in the manner of sale as these assignees made. Act of June 22, 1874-, (18 St. at Large, 178 i) 1 Bump, Bky. 567;2 Samuel, Ch. 1288; Connelly v. Philadelphia, 86 Po.. St. 110. But where the court is obliged to order a resale of property purchased in good faith, the former purchaser should be fully and liberally indemnified for all damages,costs, and expenses to which he has been subjected. Duncan v. Dodd, 2 Paige, Ch. 99, 101; 9 Paige, Ch. 264; 2 Daniell, Ch. 1284, note. Mr. Brenicka is entitled to the fullest indemnity. He purchased and has acted throughout in the best of faith. He borrowed money to make his hand payment, a.nd without any fault of his own has been involved in the expenses and losses of a vexatious lawsuit. He had a perfect right to resist a. resale, and to employ counsel to oppose this application. Duncan v. Dodd, 8upra. For his indemnification I think he is equitably entitled to receive the sum of $1,000. The assignees once offered him half that amount. The order to set aside the sale will be conditional. And now, April 22, 1882, upon consideration, the order heretofore made, confirming the sale to Christian Brenicka, is rescinded and said sale set aside, upon condition, however, that out of the funds of the bankrupt's estate the assignees pay to said Brenicka the sum of $1,000; the costb of this proceeding to be paid out of the estate.

588

FEDERAL REfORTER.

MERRIAM v. SMrfH and

(Oircuit Oourt, lJ. Massacltusetta. April] 7, 1882.)
1.

PATENT-RIGHTS OF ASSIGNEE.

The mere assignment of a patent would give the assignee no right to damages or profits already accrued; but where the deeds of assignment contain the words" also, any and all claims which I now have or may have against any person or persons by reason of any infringement of the said patent, or any part thereof," the case will be considered as if the assignors were plaintiffs.
2. BOTH PARTIES INNOCENT-RULE OF DII,IGENCE.

Where there was no acquiescence on the part of the patentee, nor conscious infringement on the part of the defendants, there was no moral delinquency on either side, or an actual estoppel; and where both parties are innocent, diligence should be required of him whose property is to be protected.
3.

INFRINGEMENT-RELIEF-DAMAGES.

In case of an infringement under such circumstances, an injunction should be granted, and damages which a court of law would give.

In Equity.

Benj. F. Thurston and Fred'k P. Fish, for complainant. Geo.. Roberts cf; Bros., for defendants. LOWELL, C. J. This bill is brought for an injunction and account, upon patent No. 49,349, issued August 8, 1865, to Benjamin U. Lyon, the inventor, and to his assignees and partners, all of Stamford, Connecticut, for an improved machine for forming welts, by means of pressure rollers and guides, combined and operating as shown in the specification and drawings. The inventor and his partners were carriage-makers, and the machine was found useful in forming the leather trimmings used in their business, and it was so used by them for about 16 years. Two or three years after the date of the Lyon patent, one Stimpson introduced a machine for making stay-strips for the seams of boots and shoes. This machine, improved somewhat from an English J::qodel, has gone into very general use, and has become of great value in the important branch of manufacture to which it has been applied. I have no doubt, upon the evidence, that the Lyon machine was new and useful, and that the Stimpson machine, which has been used by the defendants and a great many others, infringes the Lyon patent. Stimpson, and the manufacturers of boots and shoes, were wholly unaware of the existence of this patent; and the patentees were equally ignorant of the Stimpson machine. An interesting question thereupon arises, how far a court of equity