fairly and legally tried, in good faith, by the jury, and not by 'he court, as our constitution and laws require. New trial granted.
. In rs
Oourt, No D. New York.
May 20, 1888.)
The assignee may retain from the funds in his hands the amount of fee. and commissions earned; but cannot retain a sum to meet any additional allowance the court may see fit to grant.
SAME-DEPOSIT IN BANK-Loss OF INTEREST.
COMMISSION-RETENTION OF FUNDS.
Where the assignee fails to deposit moneys received In bank, hit is liable to the estate for any interest lost through such failure.
In Bankruptcy. In Mayor June, 1884, the assignee received, on account of the estate, $5,478. On the fifteenth of October, 1884, he deposited $4,563 in the bank designated by the court. At tht; third meeting of creditors the amount received by him in excess of the sum so deposited was ascertained to be $995, and the amount due him for commissions, etc., was adjusted at $419. The creditors now move that the assignee be required to deposit $995, with interest at the bank rate of 3t per cent. per annum; and also the interest upon $5,478 during the interval it remained in his hands. 'fhe motion is resisted upon the ground that the assignee was justified in retaining a sum sufficient to pay his commissions, the current expenses of the trust, and any additional allowance which the court might see fit to grant. Elisha B. PoweU, for the motion. William Tiffany, opposed. COXE, J. The position of the assignee is not tenable. He could, without impropriety, retain the amount of fees and commissions earned; but it was not permissible for him to appropriate several hundred dollars upon the supposition that the court might sometime in the future award an extra allowance for his services. Care has been taken in the selection of suitable depositories in which all mono eys received by assignees in bankruptcy shall be deposited. The only prudent course, therefore, is for the assignee to follow the rules laid down for his gllidance. The proposition that the sum retained was needed for current expenses is sufficiently answered by the undisputed allegq,tion that it has not been so used, but, on the contrary, the expenses of the trust have been uniformly paid from the funds in the The proof fails to show bad faith uponthe part of the assignee. n does show, however, that the creditors have lost a certain amount of interest by reason of his action. The estate, and not the assignee,
IN BE BURT.
is entitled to what the fund can earn. It follows that the assignee should forthwith deposit in the First National Bank of Oswego, New York, the sum of $576, with interest thereon at the rate of 3t per cent. per annum from the fifteenth of October, 1884; also interest upon $5,478 from the date of its reception by him until October 15, 1884. There being some dispute between the parties as to dates, etc., the computation may take place under the supervision of the register in charge, to whom it is referred for that purpose.
(Disftrict Court, N. lJ. New York.
May 20, 1886.)
BANKRUPTCY-ASSIGNEE'S FEES-EXTRAORDINARY AND UNUSUAL
The court examined de novo an application by the assignee for an additional allowance in respect of extraordinary and unusual duties, followed the report of the register giving an additional allowance, although it had not been filed or excepted to, on the ground that the opinion of the register, who had personal knowledge of the matters in controversy, was entitled to great weight, and the court did not feel justified in disturbing it.
In Bankruptcy. On the ninth day of March, 1886, a motion being then pending for an additional allowance to the assignee, the issues involved were, by consent of all parties, duly referred to the register in charge. The order recites "that the petition, and the subject-matter thereof, and the entire subject of compensation of said assignee, be, and the same hereby is, referred to Hon. C. CARSKADDAN, register in bankruptcy, to hear and examine into the same, and report thereon in full to this court, with his opinion." The register heard the parties, and reported that $250 is a reasonable sum to be allowed for the extraordinary and unusual duties performed by the assignee. The report concludes as follows: "I think the sum of two hundred and fifty dollars would be a just and fair allowance, under the circumstances of the case, and hereby order and direct that the assignee be allowed that sum as extra compensation in the above matter." No exceptions to the report, as required by rule 17 of this court, have been filed, nor is any evidence presented that the report itself has been filed. All the papers and written briefs have been sent to the court 1.lpon the theory entertained, apparently, by both counsel that the whole subject is open for discussion, and that the reference to the register was a perfunctory and formal proceeding. The bankrupt and the creditors insist that the assignee should receive nothing. to double The assignee, on the contrary, contends that he is the sum awarded by the register. William Tiffany, for the assignee. Elisha B. Powell, for the bankrupt and creditors.
FEDERAL REPORTER. Con, J'. All the parties interested-the creditors, the assignee, and the bankrupt-consented that the entire subject of compensation to the assignee be referred to the register in charge. He heard the parties at length, and made his report, awarding $250 in view of the protracted and successful litigation carried on by the assignee. The report has not been filed or excepted to. Though technical objections might be urged to this manner of presenting the case, I have, under the provisions of general order No. 30, considered it my duty to examine the question de nov(). The opinion of the register, who for some time has had personal knowledge of the matters in controversy, is entitled to great weight, and, in these circumstances, I do not feel justified in disturbing it. The finding of the register that, in addition to the ordinary and usual duties in such matters, the assignee "was engaged in litigation from the beginning of his trust (October, 1877,) until May, 1884, and in such litigation succeeded in reducing a claim upon the assets of the estate from $32,000 to about $300," seems to be fully sustained by the proof, and is sufficient to justify the granting of the small allowance reported by him. The report of the register is confirmed, and, with the concurrence of the circuit judge, an additional allowance of $200 is awarded to the assignee. OTIS BROS. MANUF'G Co. and others v. CRANE BROS. MANUF'G CO.l
(Oireuit Oourt, N. D. illinois. March 22,1886.)
PATENTS FOR INVENTIONS-PATENTEE BOUND BY H:rs Cr,AIMs.
Letters patent No. 44,740, of October 18,1864, to Charles R. Otis. must be limited to the peculiar arrangement which patentee describes; he having acquiesced in the rejection by the patent-office of broad claims. The fact that patentee produced an old result by a more effective combination of old elements is no reason why defendants should not be allowed to make new combinations of such elements to produce the same result, so long as they do not use the combination of parts claimed by complainants' patent.
SAME-NEW COMBINATIONS OF OLD MECHANISMS.
Patent No. 44,773, of May 18,1865, is a mere improvement upon the principle shown in the English patent of Gidlow, 1858, and of Law, 1861; and as the defendant was also an Improver upon old devices in this art, held, that the readier and more natural conclusion was that defendants' improvement was not the same combination of devices that was shown in and covered by complainants' patent. Where owners of patents had the entire interest in them for certain territory, but upon certain condItions which grantees were to perform, and, upon failure to perform. the title was to revert to grantors, held. that grantor's title was never fully divested, or at least they had a possible reversionar1 interest, so that it was proper to join them as complainants in a suit for infringement of the patents within the territory covered by the grant.
.. SAME-CONDITIONAL ASSIGNMENT OF PATENTB-PARTIES.
Offield <t Towle, (Mr. Phillips, of counsel,) for complainants. West tt Bond, for defendants.
Edited by ChariesC; Linthicum, Esq., of the Chicago bar.