nied by Judge CADWALADER because of a tendency to thereby perpetuate an abuse of executive power; for, if the courts recognize executive decision and practice as authoritative on them in construing the constitution, they may abdicate one of their most important duties, and loosen their power to check all violations of the constitution by any department of the government, legislative, executive, or judicial. Of course, it cannot be questioned that the practice of the government in all its departments, and the opinions of eminent publicists and jurists, whether official or otherwise, and whether technically authoritative on the courts or not, are entitled to the consideration of the courts in construing the constitution; but care should be used not to go beyond the limits of their just weight in that behalf. These remarks are made to strengthen my conclusion to limit my own action, as a district judge proceeding to exercise the power conferred by Rev. St. §§ 782, 783, within the narrow bounds to which it belongs, and not to attempt to decide this grave question of constitutional construction by either qualifying, or refusing to qualify, the president's appointee. There are criminal penalties prescribed by the legislation of congress designed to protect against executive abuses of this power of appointment; and, if they be unavailable by reason of executive control over prosecutions, the ultimate remedy may be in the independence of grand juries from any such determent. The courts or judges should not undertake any duty in that direction not strictly belonging to them.
In re BAXTER and others, Bankrupts.
(Oircuit Oourt, 8. D. New York. 1886.) 1.
BANKRUPTCy-PREFERENCES-BILL OF EXCHANGE.
Where bankrupts, before insolvency or contemplation thereof, delivered their bill of exchange drawn on a certain firm, payable at a future day to certain creditors, and said creditors, after the insolvency and with knowledge that it had occurred, presented the bill to said firm. who accepted it, while ignorant of the insolvency, thereby obtaining an equitable lien fofits amount upon property. in their hands as consignees of the bankrupts, lteid, that the payment of the bill of exchange was not an illegal preference, although made after the bankruptcy was notorious. Services rendered by counsel for the benefit of particular creditors only, and not for all the creditors of a bankrupt, are not allowable against the estate of said bankrupt.
In Bankruptcy. See 25 Fed. Rep. 700. A. P. J; W. Man, for respondents, (Wtn. F. Scott, of counsel.) Abbott Bros., for appellant. WALLAOE, J. Baxter & Co., the bankrupts, before insolvency or contemplation thereof, delivered their bill of exchange drawn on J onl:lS
IN RE BAXTER.
Bros., payable at a future day, to Dennistoun, Cross & Co., creditors. Subsequently Baxter & Co. became insolvent, and Dennistoun, Cross & Co., with knowledge of the fact, presented the bill to Jones Bros. for their acceptance, and procured their acceptance; Jones Bros. at the time being ignorant of the insolvency of Baxter & Co. Jones Bros. were consignees of Baxter & Co., and upon acceptance of the bill obtained an equitable lien for its amount upon property in the hands of Baxter & Co. In due course, but after Baxter & Co. were notoriously insolvent, Jones Bros. paid the bill to Dennistoun, Cross & Co. After Baxter & Co. were adjudicated bankrupts, Dennistoun, Cross & Co., being creditors upon other demands, proved thei.r claim upon these demandll, and the assignee in bankruptcy moved to expunge, upon the ground that they had received an illegal preference by the payment of the bill of exchange. The element of intent on the part of the bankrupts to give a preference to Dennistoun, Cross & Co. is wholly wanting in the transaction of which the assignee complains; and if there was any preference, which is gravely doubted, it was the result of circumstances beyond the control of the bankrupts, and which could not have been foreseen by them when they delivered the bill of exchange. Unless Dennistoun, Cross & Co. received some part of the bankrupt property, they did not obtain a preferential payment. It does not appear that they received anyt.hing except the money of Jones Bros. in payment of the obligation of Jones Bros. While the effect of their obtaining the acceptance of Jones Bros. was to put that firm in a position to reimburse themselves for the amount of the bill out of the property of the bankrupts consigned to Jones Bros., Dennistoun, Cross & Co. did not get the property or the avails of it. At most it would seem. that they only put it in the power of Jones Bros. to obtain property of the bankrupts. They did not obtain a preference by obtaining Jones Bros.' acceptance of the bill, and it is not obvious how they would have obtained one if they had sued Jones Bros. upon the acceptance, and collected the amount by process; and unless this would have been a preference there was none in receiving payment from Jones Bros. without suit. The order of the district court refusing to expunge the proof of debt of Dennistoun, Cross & Co., and allowing the claim to stand, was therefore right. So much 01 the order appealed from as allows a counsel fee of $250 to Dennistoun, Cross & Co. by way of costs upon the contestation of their claim is erroneous. Irrespective of general order No. 30 in bankruptcy, prohibiting any allowance against the estate of a bankrupt for fees of attorneys or counsel except when necessarily employed by the assignee, it is not in accordance with the well-established practice in equity tQ charge a fund belonging to a body of creditors with costs in favor of a particular creditor taxable aE;! between solicitor and client when the controversy is merely one respecting the validity or extent of the creditor's claim. The services
rendered by counsel for Dennistoun, Cross & Co. were for the benefit of those creditors only, and not for that of all the creditors of the bankrupts, or of the general fund. They are not to be compensated therefor upon the principle that one jointly interested with others in a common fund, who maintains a necessary litigation to save it from waste, or secure it for the benefit of all, is entitled in equity to the reimbursement of his costs as between solicitor and client out of the fund. See Tr'Ustees v. Greenough, 105 U. S. 527, and cases there cited. The only costa which should have been allowed are those of an equity suit as between party and party prescribed by statute. Rev. St. §
In all other respects the order of the district court is affirmed.
and others v.
(Circuit OOU'l't, N. D. Illinoi8.
August 2, 1886.)
PATENTS FOR INVENTIONs-Tum-LOCKS.
Letters patent No. 262,093, of August 1,1882, to Henry F. Newbury, for an improvement in time-locks, construed, sustained over the defense of want of novelty, and found infringed.
Prior to the making of the pa.tented device, combination locks for vaults and safes, havine; supplementary devices for dogging the bolts of the door in the locked positlOn, in case the lock was driven or blown off, or separated from the door-plates, were old, and it was also old to use time-locks in connection with such combination locks and dogging devices. The patent described a supplemental locking mechanism, adapted to be called mto action by a shock sufficient to break or displace the parts of the time-lock without driving it from the door. Held, that the device possessed patentable novelty.
"It required inventive genius to conceive and adapt to a time-lock a supplemental mechanism which would remain inert until the time-lock was broKen, and then be brought into action by the violence or shock which broke the time-lock, or destroyed its efficiency."
One who has appropriated an invention ought not to be heard to question its utility. Any invention which increases the salability of an article may be said to contain the elements of utility.
In Equity. Sam'l A. Duncan and Horace S. Oakley, for complainants. West et Bond, for defendant.
BLODGETT, J. This is a bill in equity for an accounting and injunction, by reason of the alleged infringement of patent No. 262,093, granted August 1, 1882, to Henry F. Newbury. for "an improve1 Edited
by Charles C. Linthicum, Esq., of the Chicago bar.