IN BllI YOUNG.
bankrupt receiving five shares in order that he might be eli· .gible to the offioe of treasurer of the company. He became the treasurer, and as such officer he received and disbursed the moneys earned by the steamer, amounting in round figures to $4,000, and leaving no surplus for division after the payment of the running expenses and for keeping her in repair. He states further that books of account of the reo eeipts, and expenditures were kept; that after the loss of the steamer suits were brought in New York against two insur· ance companies for the moneys due upon polioies of insurance; that the books were given to the lawyers in New York who had the charge of these suits, to be used therein, and that except the book of the minutes of the corporation he had never seen them since. The burden of proof, that the bankrupt did not keep proper books of account, is upon the opposing creditors. I will not stop to inquire whether the court ougb,t to refuse the eharge upon the testimony as it has been left by the parties, because I am of the opinion that the bankrupt, sustaining such a relation to the corporation, is not a merchant or . tradesman, in the sense in which thes6words are used in the bankrupt act, and not being suoh he is not subject to the penalty of the section. The disoharge will be granted.
(Di8fn'ict Oourt, D. NWJ JfIl'l8Jj. July I, 1881.)
still pending: and the other in replevin against C., the custodian of the property for the receiver, to recover pOBllession, in which lJ. appeared and pleaded, and judgment was obtained agn.inst him. Upon proceedings to punish B. for contempt, held: (1) That C. having submitted to the jurisdiction of the state tribunal, it was too late to complain that the action in replevin was in contempt of the authority of the court. (2) That ,4. was sued in trespass not as receiver, but as anlndividual, for taking and retaining possession of certain goods not included in the order of the court, and as such was a mere trespasser and not entitled to the protection of the court.
In Bankruptoy. Motion to confirm report of register. NIXON, D. J. On the fifth of June, 1877, upon the applioation of oertain creditors of Eli W. Young, who had recently been adjudged a banktupt,an order was made by the court appointing Charles W. Rhodes, Esq., of Montclair, New Jersey, a reoeiver of the estate and effects of the said Young, and inc11)ding all the property whioh had been lately sold, or olaimed to have been sold, under exeoution against Young in favor of Joseph K. Manning, John N. Vorhees, and William Grant and claimed to have been purohased at the sale by said Grant, whioh goods were then situate or looated in a oertain store-house or building lately ocoupied by the said Young,at Glen Gardner, in the oounty of Hunterdon, and directing the said receiver to take possession of the said property and goods and hold the same in oustody, without the power of sale or disposition, until the further order of the court, and restraining and prohibiting the said Grant and all other persons from interfering with or hindering the said receiver in the execution of the order. On the third day of October, 1877, the receiver filed a petition in the courts setting forth that he took possession of the property described in the foregoing order on the twelfth of· June, 1877 j that he found one William Grant in the oharge and custody of the same, who peaceably and quietly surrendered to him the keys of the store in which the goods and chattels were looated j but who claimed that a portion of the goods in the said building was his own property, and was not covered by the order of the court. The
IN BE YOUNG.
petition further stated that he employed one Andrew D. Banghart to take care of the said property, and that while Banghart was holding the same, as his oustodian, the said Grant commenced an action of replevin against him, in one of the courts of the state of New Jersey, to recover a portion of the goods, and under the writ therein caused to be seized by the sheriff of the county of Hunterdon certain ated articles; that the said Banghart, appearing to said action, interposed a plea, w:hich was overruled and judgment entered against him; that, subsequently, the said Grant commenced an action of trespass against the petitioner in one of the state courts of New Jersey, for acts done in the taking and seizure, which action was still pending. The petitioner prayed the court to restrain all further proceedings in said suit, to vacate and set aside the judgment already obtained, and for such other relief as was meet and proper. The court granted a rule that the said Grant show cause, on the twenty-third day of October following, why the prayer of the petition should not be granted, and why he should not be attached for contempt. On the return of the rule to show cause, Grant appeared and answered the petition, and on the sixth of November, 1877, the court ordered that the issues raised by the petition and answer be referred to the register, to take the proofs for both parties, and to report the same to the court, with his opinion thereon, with all convenient speed. The testimony was taken by the register, who reported that the respondent was guilty of contempt. ' The case ·is now before me on a motion to confirm the report of the register. Various objections have been made to the confirmation, only one of which I have thought it necessary to examine. The alleged contempt consisted in the respondents bringing two suits in the state courts,-one in replevin against Banghart, the custodian of the goods, and the other in trespass against Rhodes, the receiver. But these actions were not instituted to obtain the possession of any property described in the order which appointed the reo
c'eiver. The only property committed to the custody and control' of the receiver by the court was that formerly belonging to the bankrupt Young, and which Grant had pur. chl1sed at an alleged fraudnlent sheriff's sale. The proofs . clearly show that when the receiver took these goods into his possession he also took other goods which belonged to Grant, and which were never the property of the bankrupt. It was .these last-named goods and chattels that Grant demanded, ahd when delivery to him was refused, brought suit for. His honor, the late Judge Cadwallader, was then sitting here during the temporary absence of the judge of the district, and the evidence reveals that an application was made to him to restrain the replevin suit in the state court. He declined to interfere, but intimated that the custodian, Banghart, might make his defence to the suit in the state court. Acting on this, suggestion, he appeared and pleaded, and failed in his defence. After thus submitting to the jurisdiction of the state tribunal, it is too late to complain that the proceeding was in contempt of the authority of this court. With regard to the action in trespass against Rhodes, he was not sued as receiver, but as an individual, for·taking and retaining possession of certain goods not included in the order of the court, and for interfering with which, if the allegation were true, he was a mere trespasser. The principle is well settled that the court will not protect a receiver for any acts committed by him outside ,of the performance of the proper and legitimate duties of his receivership. Without, therefore, examining the other grounds taken against confirming the register's report, the foregoing seems sufficient to authorize the court to refuse a confirmation.
V · .TURNJlIB.
INGERSOLL v. TURNER· and another.
(Oircuit Oourt, D. New J",.uy. June 5, 1877.)
1. PATEN'f No. 119,705-CuSPIPORil-ANTICIPATION-VALIDlTY. Letters patent No. 119,705, granted October 10; 1871, to E. A. Heath, for improved metallic cuspidor, held, anticipated by letters patent No. 106,094, granted August 2, 1870, to William H. Topham,
for improfled spittoons, and therefore invalid.
Whitney d; Betts, for complainant. Oharles F. Blake, for defendants.
NIXON, D. J. This is a suit in equity to restrain the infringement of letters patent No. 119,705, issued to E. A. Heath on the tenth day of October, 1871, for a metallic cus- . pidor. The bill of complaint prays for an injunction, account, and assessment of damages. The answer denies that Heath was the original and first inventor of the alleged improvement in cnspidors described and claimed in his letters patent, but that he was anticipated by one William H. Topham, to whom letters patent were granted on the second of August, 1870. The word "cuspidor" is derived from the Por. tuguese verb cuspo, to spit; cuspidor, a spitter. The English cuspidor is a spittoon of a peculiar form.. Not much stress, therefore, can be laid upon the fact that Topham calls· his patent "an improvement in spittoons," and Heath calls his "an improvement in cuspidors." The difference between a spittoon and a cuspidor is one of form, and the form of the cuspidor is not new. The characteristic and valuable feature of both articles is their self-righting quality, arising from their weighted bottoms. The functions of the weighted bottom in each are the same, and Topham's has the merit of being the older. It is in evidence that he made papier mache cuspidors with weighted bottoms as early as June or July, 1871, anterior to the date of the patent to Heath. What, then, has Heath done? He has improved a cuspidor by increasing the weight of the bottom, whereby it is rendered