ble causes of action set forth as to make it proper now; on this motion, to compel the plaintiff to divide the suit into a suit or suits at law and a suit or suits in equity. If this is to be done at all, it should be done only as the result of pleading. The same remark applies to any questions of multifariousness or misjoinder of causes of action or of parties. I see no sufficient ground in the papers for I'equiring the plaintiff at present to give additional inj;unction security to the trustees; and, although the notice of motion includes the giving further security to the executors, there is nothing in the moving .affidavits on that subject.
(Di8trict Court,8. D. Ohio, W. D. November 11,1881.)
INVOLUNTARY BANKRUPTCy-ACTION FOR RECOVERY OF DEBT-BAR.
A proeeerling iIi., involuntary bankruptcy is not one for the recovery of the creditor's debt, but to secure a distribution of the debtor's property among all his creditors; and therefore the prosecution of an action by the creditor for the recovery of his debt is not a bar to his proceeding against the debtor in bankruptcy.
SAME-AMENDMENT TO PETITION-NEW ACT OF BANKRUPTCY.
An amendment to the petition charging that the conveyances, whiph were specifically set forth in the petition,and wlJich were therein alleged to be fraudulent and without consideration, were also made, if there was any, cOnsideration, with intent to prefer certain persons to whom the conveyances were made, does not charge a new act of bankruptcy, and should be allowed.
SAME-JURISDICTION-NUMBER AND AMOUNT.
That the petitioning creditors constitute one-fourth in number and onethird in amount of the debtor's creditors and indebtedness is not, in the proper sense of the term, a fact. Ex parte Jewett, 2 Lowell, 393, followed.
SAME-SAME-SAME-REPEAL OF BANKRUPT LAW-" PENDING" CASE.
A proceeding in involuntary bankruptcy was" pending," within the meaning of the act of June 7, 1878, repealing the bankrupt law, when that act went into force, although the required number and amount had not then joined as petitioning creditors; and the court has power thereafter to permit other creditors to join as petitioning creditors.
Bateman d: Harper, for petitioners. Follett, Hyman &: Dawson and Thos. Millikin, contra. SWING, D. J. This is a proceeding in inVOluntary bankruptcy. The second defence of the answer sets up that, after the filing of the
oil'Heported by J. C. Harper, Esq., of the Cincinnati bar
petition in bankruptcy, the petitioning creditor began a civil action against the debtor for the recove.ry of his debt, and had prosecuted the same to judgment, thereby securing a lien upon the defendant's property; and alleges that, by reason thereof, the petitioner is estopped from prosecuting this proceeding. To this defence a general demurrer is interposed. I think the demurrer is well taken. Bankruptcy proceedings are not instituted for the recovery of the creditors' debt, but to secure a ilistribution of the debtor's property to all his creditors. Therefore, the commencement, by the creditor, of an for the recovery of the debt, is not a bar to a proceeding, under the bankrupt law, to declare the debtor a bankrupt. As to what effect, if any, the lien obtained by the creditor in such action is to have against other creditors it is not necessary now to decide. The matters set up do not constitute a bar to the proceeding for an adjudication of bankruptcy, and the demurrer must be sustained. A motion has been made for leave to amend the petition. The original :petition, filed in 1878, set out the conveyance of certain premises by the debtor to his wife through a trustee, and charged that the same was made without 'consideration and with intent to delay, hinder, al1d defraud his creditors, and to defeat the operation of the bankrupt act. It also charged a transfer and canveyance ·of certain personal property to Ayres McCreary, with the same intent. The amendment proposed sets out the sa.me conveyances; but charge's that the first, to the debtor's wife, was made upon the pretended consideration of an indebtedness to her, and with intent to prefer her and to defraud, etc:, as in the petition; and that the to Ayres McCreary, was made with intent to prefer him and to defraud, etc. The amendment does :n'ot allege what can properly be called a new act of bankruptcy. The act was the transfer of the property. The amendment proposed simply charges a new intent, and should be allowed. Finally, there is an, application on the part of other creditors to join as petitioning creditors. This proceeding was begun March 16, 1878, and it appears that the petitioning creditor does not constitute the requisite one-fourth in number and one-third in amount of the alleged bankrupt's indebtedness. It is claimed that the requisite number and amount is a jurisdictional fact, and that that requirement not having been fulfilled before the repeal of the bankrupt law, the court has no power to permit others to join or to proceed further
in the case. If the proceeding was "pending" when the law was repealed,the court has power to grant the application. The language of the act of congress is inconsistent with the idea that it intended the court's jurisdiction to depend upon the presence of the required number and amount. Section 5021 of the Revised Statutes, as amended by the act of 1874, (18 St. at Large, 180,) provides that:
"And in all cases commenced since the first day of December, 1873, and prior to the passage of this act, as well as those commenced hereafter, the court shall, if such allegation as to the number or amount of petitioning creditors be denied by the debtor by a statement in writing to that effect, require him to file in court forthwith a full list of his creditors, with their places of residence and the sums due them, respectively, and shall ascertain, upon reasonable notice to the creditors, whether one-fourth in number and onethird in amount thereof, as aforesaid, have petitioned that the debtor be adjudged a bankrupt. But if such debtor shall, on the filing of the petition, admit in writing that the requisite number and amount of creditors have petitioned, the court (if satisfLed that the admission was made in good faith) shall so adjudge, which judgment shall be final, and the matter proceed without further steps on the subject. And if it shall appear that such number and amount have not so petitioned, the court shall grant reasonable time, not exceeding in cases heretofore commenced 20 days, and cases hereafter commenced 10 days, within which creditors may join in such petition. And if, at the expiration of such time so limited, the number and amount shall comply with the requirements of this section, the matter of bankruptcy may proceed; but if, after the expiration of such limited time, such number and amount shall not answer the requirements of this section, the proceedings shall be dismissf',d, and, in cases hereafter commenced, with costs."
The bankrupt act provides that the adjudication shall relate back to the time of filing the petition. The section just quoted provides a mode for supplying the requisite number and amount when there was originally a deficiency. Can it be said that congress would make the adjudication relate back to a time when the court had no jurisdiction of the proceeding? In this case there was a petition containing the necessary allegations as to the residence of the alleged bankrupt, his indebtedness, the nature and character of the petitioner's claim, the acts of bankruptcy alleged to have been committed, with accompanying proofs and affidavits as required by the bankrupt law, the defendant was duly served, and this gave the court jurisdiction of the cause. The question was before me in the case of In re H. Hirsch J: Co., and I then so ruled. The opinion of Judge Lowell in Ex parte Jewett, 2 Lowell, 393, is to the same effect. The court having jurisdiction of the case when the bankrupt law was
NEW YORK BUNG & BUSHING 00.
repealed, it follows that it was then "pending" within the meaning· of the repealing act of June 7, 1878, (20 St. at Large, 99,) and that proceedings thereafter in it are not affected by such repeal. The applicants present a petition alleging the same acts of bankruptcy charged-in the original petition and amendmentl and leave is given to file the same.
NOTE. See; also, in sn'pPol't of decision in foregoing case, He DUncan, 8 Ben. 365; Be Frisbee, 14; Blatchf. 185; Perin v. Peale, 17 B. U. 377; LfUJtrapes v. Blanc. 3 Woods, 134; Re Mendenhall, 9 B. R. 380; Re Rebmeister, 15 Blatchf. 467 ; 'Bump, Bankruptcy. (10th Ed.) 47-48, 468-469. and cases cited. That the number and amount is a jurisdictional fact, Bee Re Rosenftelds, 11 B. R. 86; Re BU1'ch, 10 .B. R. 150.-[REP.
(Oircuit Oourt,S. D. New York. September 29, 1881.)
1. REISSUE-Too BROAD-INVALID.
Where the original patent is for a particular form of wooden bushing in an iron one, a reissue for any form is broader than the original, and invalid.
2. LETTERS PATENT-BUSIDNGS ;FOR FAUCET-HOLES, Reissued letters patent No. 8,483, for an improvement in bushings for faucet-
holes, is invalid. .
In Equity. WyUis Hodges, for plaintiff. Preston Stevenson, for defendant. . WHEELER, D. J. This suit is brought upon letters patent No. 141,473, dated Aug'list 5, 1873, issued to Samuel R. Thompson for an improvement in bushings for faucet holes, and reissued November 12, 1878, in No. 8,483, to William C. McKean, George H. Jackson, assignees, and now ownBd by the plaintiff. and Jefferson Brown, The principal defences set up are that the original patent was void for want of· novelty; that the reissue is for an invention different fromthat described in the original; and that the defendant, in what he does. not infringe. The only anticipations necessary to be noticed areThe English patent to William Howland Taylor, dated August 6, 1864, and sealed February 3,1865, for, among other things, the employment in beer barrels of peg holes, smallest in the middle'of the stave, and conical both outward and inward; the patent of the United States to John Huegg, assignor to J. G. Marriott, No. 70,024, dated October 22, 1867, for a wooden bung,