by way of rents during the time the possession has been withheld. You will also find and state in your verdict what is the monthly value ()f the premises. If you find for the defendant, you will so state in your verdict. The jury returned a ver\lict for the plaintiff.
(otrcuit Oourt, E. D.Mi88oUN.
1. AssrGNMENT FOR BENEFIT OF CREDITORS- VALIDITY.
An assignment for the benefit of creditors under a state law is void as against an assignee in bankruptcy under the national bankruptcy act; 'but it is not absolutely void ab initio, but only subject to be avoided by proceedings, taken under the bankrupt act. .
2. BAME-TITLE IN ASSIGNEE.
The title to the estate passes to the assignee in bankruptcy at the time of the conveyance of the assets to him, and the assignee under the state law ceases from that time to have any power to dispose of or appropriate them in any manner; and a demand on the latter in writing for the estate is sufficient without an application for an injunction to restrain him from disposing of the assets of the estate in his hands.
In Bankruptcy. Appeal from the judgment of the district court. Mr. Krum, for appellant. MCCRARY, C. 'J. It is well settled that an assignment for the ben" efit of creditors under a state law is void as against an assignee in bankruptcy under .the national bankrupt act. But it seems that the assignment under the state law is not absolutely voidab initio, but only subject to be avoided by proceedings taken under the bankrupt act. In the present case it appears that the assignee, under the state law, had taken possession of the estate and partially executed the assignment prior to the adjudication in bankruptcy. The assignee in bankruptcy, soon after being qualified and receiving a conveyance of the estate from the register, made formal demand in writing upon the· assignee" under the state law, for the estate. The latter, however, continued to dispose of a part of the estate by paying therefrom certain dividends. The court below instructed the jury that this he had no right to do, and that he was consequently liable to the assignee in bankruptcy for the assets in his hands at the time the demand ,was made. It is said that the assignee in bankruptcy wa$ :QQund to
SCHMIDT 'V. FREESE.
enjoin the further proceedings under the state law, and that he is therefore not entitled to recover for the amount paid out as dividends after demand. This point is not well taken. The title to the estate passed to the assignee in bankruptcy before he demanded it. From the time of the conveyance of the assets to the assignee in bankruptcy the latter was their owner, and the assignee under the state law ceased to have any power to dispose of them or appropriate them in any manner. It was the case of property belonging to one person, and found in the possession of another. No injunction was necessary. A demand was quite suffcient. There is no error in the proceedings, and the judgment of the district COUlt is accordingly affirmed.
(lJi.reuie Court, E. D. New York. May 10,1882.)
PATENTS FOR INVENTIONB-ESBENTIALBLEMENTLEFT OUT.
In a claim for a combination, one essential element whereof is an intermedi. ate lever, a machine which omits the essential element of an intermediate lever, and substitutes another, whereby the same result is accomplished in a different manner, does not infringe the patent.
SAME-NOT A COLORABLE MODIFICATION.
Where the difference in the action of the two machines is suhstantial, the defendant's arrangement is not a colorable modification of plaintill's arrange. ment, and is not an infringement.
F. 'Von Briesen, for plaintiff. Van Santvoord ct' Hauff, for defendants.
BENEDICT, D. J. This action is for an injunction and account. It is based upon two letters patent for improvements in feed mechanism for button-hole sewing-machines. A form of machine conceded to be made and sold by the defendant is alleged to infringe both the patents Bet forth itt the bill. The defendant denies the infringement. and also disputes the validity of the patents. The first patent set forth in the bill is No. 197,528, dated November 27, 1877. This patent has seven claims. Infringement of the second and fifth claims is charged, but the charge as to the fifth claim has been abandoned, leaving the second claim only to be considered here. The object of the invention Bet forth in this claiID,. is to simplify the mechanism .for imparting motion to the feed-wheel of a button-hole .sewing-machine. The specificationr.efers to a former patent, NQ. 183,333, and states that instead of the jointed lever described in such