DO'n t7. ,JOHNSON.
act .when his rights as,asBignee are menaced, or it is nece.. satyto institute litigation to 'hav&' those righis protected 01' aseertained. . In this case he has confessedly all the'property the bankrupt had, and is in no danger of losing it. There is, therefore, no sufficient motive for the suit. The bare fact that the sale was void is no reason for setting it aside,80 long as the assignee has the property, alid all that he coUld obtain in any event by the most suooessfullitigation. . The bill is dismissed.
Don and others, Assignees, eto., 11. J OIINSON ana others, *dministrators, etc.
(DiMicI Oourt; No D. NN York. March 8, 1881.)
STATUTE OJ' LnuTATION8-DJCBT OWING BANKRUFT-REv.
ST. f 5057. The limitation prescribed by section 5057 of the ReVISed Statutes, in relation to suits .. between an assignee in bankruptcy and a PSWOn claiming an adverse interest touching any property or rights of propertYlransferable to or invested in such assignee," is applicable to an action brought by the assignee to collect a debt owing to the bankrupt. . ST. f 5057. Where, however, the debtor is the assignee of the bankrupt, the statute doea not begin to run until the death of the assignee.
The representatives of such assignee are estopped from claiming, upon his death, that an action could have been maintained by his co-assignee within the time limited by the statute.
8Alm-AssIGNEE DICBTOB TO BANXBUPT-REv.
B.um-REPRICSENTATIVICS 011' DECEASED ASSIG:NEIC-STATB STATVTIC.
Suit must be brought against the representatives of such assignee within the time limited by section 6057, although under the provisions of a statute of the state of the deceased assignee the term of 18 months was not to be deemed any part of the time limited by law for the commencement of actions againt his administratol'll.-[ED.
Tkos. Oorlett, for plaintiffs. W. O. Ruger, for defendants.
,WALLACE,D.}. that the action if$, Ql\rr(;jd by t1;le statllt6l Qf limitations. I agree with the
defendants that section 5057, U. S. Rev. St., which' enacts a.t shall be maintainable ','that no suit, in any court between Ml bankruptcy and a person tou,ching any property or rights claiming of property or vested in such assignee, unless witb;iIlJWI> time when the cause of action accrued for OJ: against such assignee; " is applicable to an action brought by the assignee to cQ)lectadebt owing to the bankrupt. courts are to this effect, The later authoriti,es and certainly every reason which can be advanced for a lim,of the, kind applies with as much force to such a cause of action' a.s to one brought to 'recover specifio properly. These authorities, as 'Well'as thosewhicib: intimate a different etc:, v. Tanner., 16 N. B. view, are cited R. 285, where the limitation was applied to a cause of action like the present. '8ee, also, Foremati, Assignee, v.
low, 18 N.B.R:457.
',"The statute. however, not"begin to run in Johnson's life-time,becauSEl he wasoile'oUheJassigneesofthebankrupt, and remained Such assignee' until his death. The sta,tute for the of limitations is not intended to apply to recoxrry of which the paay entitled thereto could not maintain an action. A party cannot ,be both plaintiff and defendant in an action at law. Maffat v. Van Mulliger, 2 Chitty, 539; 2 B. & P. 124; Teague v. Hubbard, 8 B. & C. 345. Accordingly it has been t,hat where money is lent by a feme covcrt, having a separate estate, to her husband, the statut,e does not begin to run the debt until the death of the husband, for on account ·of the unity of the husband and wife the latter cannot sue the former. Towers v. Hugner, 3 Whatt. (Pa.) 48. " Statutes of limitation 'not extinguish the debt or claim; they only form a bar to the remedy of the party to recover it by action, and they can only operate upon the remedy from the time when the remedy is available. Therefore, a.
statute of limitations ,does not run while there is no perBon against whom suit can be brought, as where, until adminili· tration has been granted, So" statute of limitations does not operate upon a claim against the estate, because. there is no one who can be sued·. Lewis v. B'I'oadwell,8McLean, 568. Assuming, however, that Johnson's co-assignees could have maintained an action against him for the demand while he was assignee, his representatives are estopped from availing themselves of the defence. He was a trustee whose duty required him to enforce all claims existing in favor of the estate. He was responsible for any default of his co-assignees in this behalf, and could no more take advantage of their laches or miscouduct than he could of his own misconduct in failing to bring an action that should have been brought.. His administrators cannot avail themselves of a defence which he would not have been permitted to set up. This action was not brought until three years and over had expired after the administrators were appointed. I am constrained to hold that the statute of limitations began to run when the administrators were appointed and had qualified, and that the action is therefore barred. The statutes of this state enact that the term of eighteen months after the death of any intestate shall not be deemed any part of the time limited by law for the commencement of actions against his administrators, and the plaintiffs insist that the period of eighteen months is not'to be computed in applying the limitation. The answer to this argument is that the state st,atute does not prevent the bringing of a.n action against the administrators within the eighteen months. If it did in terms do this, the prohibition could not affect the right of a plaintiff to bring a suit, which the laws of congress authorize him to bring at any time. The laws of the United States are supreme within their constitutional limits, and a right which they confer cannot be abrogated or curtailed by state legislation. The bankrupt act, as a measure of policy to secure the speedy settlement of estates, authorizes a defendant to defeat an action if it is not m-ought within two years. No state could deprive himo£' this right" and!lthus
frustrate the policy of the bankrupt act, without invading the domain which belongs exclusively to a higher sovereignty. The state statute does not attempt to do this. It merely suspends the operation of its own statute of limitations. ludgment is ordered for the defendant.
BROWN .,. DEERE, MANSUR & Co. and others.
(Oircuit Oourt, E. D. Missouri. January, 1881.)
The substitution of an intermittent rotatory seed-wheel for an oscillatory seed-wheel, with the addition of the devices necessary to effect such rotatory motion, constitutes a valid and important improvement.
SAME-DIVISION mTO DISTINCT
CLAIMs. The supreme court having held divisional patents valid, there can be no legal objection to subdividing an invention into distinct claims. -[ED.
TREAT, D. J. The only questions calling for especial attention are-First, was the patent for an improvement issued in 1865 valid?, Of this the court has no doubt; for instead of an oscillatory seed wheel, an intermittent rotatory wheel was substituted,-the intermittent rotatory operations, in combination, to be effected by the devices stated, namely, the forks on the transverse bar contrived with checks, so that the wheel could be rotated intermittently, and stopped at each discharge of the seed in the check-rows. Second. Is the reissue No. 6,384 valid? It contains three claims. To understand them, it is necessary to consider what was included in the improvement of 1865, and not only what was the state of the art when the patents of 1853 and 1855 were issued, but also of 1865. All that was included in the patents of 1853 and 1855 are abandoned to the public; and hence the improvement patent of 1865 and its re-issue must rest for present validity, or rather for infringement, upon the violation of the lawful rights of the plaintiff, which were acquired under said
BROWN V. DEElUII.
patent of 1865 and its re-issue. Is the re-issue, aslb each of its three claims, within the terms.of the original patent of 1865? It is clear that the substantial improvement consisted in a new device, which, in combination with former devioes, would produce an intermittent rotatory motion, with desoribed checks, instead of an oscillatory motion of the seedwheels. In the re-issue the matters invented or suggested in the patent of 1865 are divided into three distinot claims. As the United States supreme court has held divisional patents valid, there can be no legal objeotion to subdividing the invention into distinct claims. So far as the present inquiry is concemed, there is nothing new in horizontal reciprooal seed-wheels, a transverse reciprocating bar, and a hand. lever, operated in combination, nor was there in said combination operating in connection with the valve in the seed.tube; Now, if an intermittent rotatory seed-wheel was substituted for an oscillatory wheel, and devices given for effecting such rotatory motion,' consisting of forks on the transverse bar, and checks on the wheel and bar, constructed as described, a valid and important improvement was made. Suoh was the soope of the patent of 1865. The re-issue subdivides that invention into three claims; First, the combination of the peculiar wheel and transverse bar with a hand-lever, so as to produce the intermittent rotatory motion, substantially as, etc. Here is an introduction into old machinery of a new and peculiar wheel and forked transverse bar, whereby, in combination with well-known devices, the desired result could be produced,-a new combination. Second, the combination of the described forks and ·toothed wheels to operate as stated. That combination shows the generalstructure of the forks and of the wheels and of the checks, whereby the intermittent rotatory motion was produced and stopped at each discharge of the radial seed-CUps through the seedvalves. No similar combination existed previously, and as to some of the devices they were entirely new. Third, this claim, unless limited to the devices used in the combination, would be too broad, and therefore void. It is for a combina-.
tion, literally interpreted, of any horizontal .E!eedwheel in the hopper, and valva in the seed-tube, a transverse reciprocating bar, and operating hand-lever. Such a combiis open to more than verbal criticism. When, however, the recpgnized rules of interpretation in such cases are brought to bear, we find that this claim differs from the others only in makiJlg the rotatory wheel operata the seed-valve. Said valve had previously been operated in connection with the oscillatory wheel, bar, and lever. Hence, the introduction of the intermittent rotatory wheel, the forks on the transverse bar, and the checks or stops at certain points, enabled the three combinations to be effective in their respective operations, separately considered. Each of those claims is therefore held to be valid. As to the infringement, much might be said if the court had at its command the appliances whereby, through models and drawings, it could clearly appear as to details of mechanical conmake its trivances. In the absence of such aid it would be useless to attempt a detailed description thereof. It must suffice to state that the defendants infringe each of the plaintiff's claims, limiting them to the use, in combination, of the de, vices specified. The combinations are the same, and the devices used are the same, with merely colorable change as to form. The forks, seed-wheels, and checks exist in the patent and in defendants' machines in combination, substantially as Bet forth in plaintiff's patent. A decree will be entered for the plaintiff accordingly, with reference to the master, Thomas O. Reynolds, to report the amount of profits and damages.
See infra, 487, for decision of the court upon motion for rehearing and to sct aside the interlocutory decree.
'-",., - --,'
BROWN V. DEERE, MANSUR
(Oircuit Oourt, E. D. Mi88ouri. February Ii, 1881.)
INFRINGEMENT-SUSPENSION OF INTERLOCUTORY DECREE-POWER Oll'
CouR'r. The suspension of an 'interlocutory decree; perpetually enjoining the infringement of a patent; until an accountmg can be had and a decree entered from which an appeal can be taken, rests in the discretion of the court which granted the decree.
In the exercise of such discretion the court should look carefu11y to all the'£aot8 and circumstances involved, regarding the difference between royalties, licenses, and patent monopolies. 8.
Motion to suspend the interlocutory decree for a perpetual injunction overruled under the circumstances of this case.-rED.
George Harding and Jolin R. Bennett, for plaintiff. West It Bond and S. S. Boyd, for defendants. TREAT, D. J. On the hearing of this cause upon the merits,-it was decided that the plaintiff's patent was valid, and that the defendants had infringed the same.- A motion for rehearing IS now presented substantIally on the ground that the defendants have discovered since said hearing proofs of prior use and anticipations of plaintiff's patent, invalidating the same. The motion looks to aside the decree and permitting an amended answer to be filed, in which the n.ewly.discovered matter may be interposed. To that motion there are valid objections: First. Undedhe ru1es governing such cases, the time within which such defences can be presented is prescribed by law. No adequate excuse is given for the non-presentation of the alleged defences, within the prescribed time. Second. So far as the motion and accompanying affidavits disclose, there is no adequate reason, even if the supposed new matter had been presentec1 in time for changing the decree. The parties in this case had been. at issue for about two years, and, after mutual indulgence as to the date of hearing,
'*See 8upra, 484.