that is, he can rely on his security, or he can give it up and prove his claims as a general unsecured creditor,-and as he elects he IJ'ast stand or fall. The original act of congress of March 2, 1867, applicable to this case, is in the following words, viz. :
"Any person who, after the approval of this act, shall have accepted any preference, having reasonai.Jle cause to believe that the same was made or given by the debtor contrary to any provision of this act, shall not prove the debt or claim on account of which the preference was made or given, nor shall he receive any dividend thereupon until he shall first have surrendered to the assignee all property, money, benefit, or advantage received by him under such preference." Section 23.
Now, in point of fact, Swan, Clark & Co. did not make such surrender as was required by the act of congress, but appealed to the decision of the circuit court for this district as to their right to retain the same as their own property; and, as hall already been said, the decree of that court was against them on this point. Any surrender, or attempted surrender, of the security after the decree of the court had been announced against them,-and such decree was within the knowledge of the respondents,-is not such a surrender as is contemplated by the act, and would not let in the respondents to prove their claims; and while some of the cases cited go very far in allowing parties to surrender their securities even after judgment or decree has been rendered in a contested suit, yet none of them go to the extent of allowing such a surrender after a decree made has come to the knowledge of the parties before an actual entry of such decree on the record. As long as there is doubt as to the decree or judgment there may be a locus pen-itentic:e, but after that doubt is removed, and a knowledge of the decree or judgment is brought home to the parties, the opportunity of surrender is gone. We think the result of the authorities cited i3 to establish the proposition that no surrender of the security upon which a preference has been sought to be obtained can be made after a recovery, so as to let in the respondent to the proof of his c·laim; at least, this is the result of the modern authorities, and appears to me to be more conformable to reason and the principles on which the bankrupt law is founded than the earlier conflicting decisions to the contrary. See particularly In re Gramer, 13 N. B. R. 225,-decision by Judge Nelson, in 1876, after the decree "the loclLs penitentic:e had passed" the contesting party could not surrender. See also In re Riorden, 14 N. B. R. 335, by Judge Blatchford, in which, by inference, he holds
MOLINE PLOW CO.
that the surrender was not good after recovery. See In re Stein, 16 N. B. R. 569; by Judge Blatchford, in which this proposition of inabilit;y to surrender the preference after recovery is maintained. Other cases might be cited to sustain this view of the case. The only modern authorities in conflict with them are In re Black, 17 N. B. H.. 399, and BU1'r v. Hopkins, 12 N. B. R. 211. From the evidence in this cause it appears that there is a conflict of testimony as to the fact of an offer to surrender the security creating the preference; but the respondents having retained this security, and having sought to establish their right to it by a suit in the circuit court of this distriet, it is manifest that in point of fact they never made such surrender up to the time of the announcement of the decision by the court; nor does it appear that such a surrender was ever made afterwards. For these reasons we deny the right to the respondents to prove their claim founded on the notes and book account, which was the consideration for the security, and we grant the prayer, etc., of the petitioner that the same shall be stricken off. Considering that this is a case of constructive fraud only, we think it right thu,t the whole costs 'should be equally divided between the petitioner and the respondent.
and others v.
Co. and others.
(Circuit Court, No D. lUinois, 1.
June 22, 1881.)
The tongueless, straddle-row cultivator, which has an arched or bent axle, with wheels revolving upon the journals at the end of the axle, and plows attached to the axle by a joint allowing the plows to swing vertically and latterally, the axle being jointed in the middle of the arch by a torsion joint, which is prevented by lugs from turning only a certain distance, does not infringe patents issued, respectively, to Schroeder, Eichholtz, Norton, Pattee, and Poling.
2, (JOMBINATIONS OF OLD PARTS,
A pa'ent for the combination of old parts is not infringed by a different combination of the same parts to produce the same result.
A. McCallum, for complainants. West cf: Bond, for defendants. BLODGETT, D. J. The bill in this case alleges the issue of the following patents by the United States patent-office: