.210 which the claim is filed, must be excluded. Therefore, the claim here, filed April 5, 1875, was in time. This construction of the mechanics' lien law is in accord with all the later. authorities upon the vexed question of the .computation of time. Cromelien v. Brink, 29 Po.. St. 524. Thus it was decided in Green's Appeal, 6 W. & S. 327, that under the act of the twenty-sixth of March, 1827, the five years from the day of the entry'of a judgment within which it must be revived by scire facias, are exclusive of the day on which the judgment was entered. And in Menges v. Frick, 73 Po.. St. 137, it was held that where a debt was due October 6, 1862, suit brought October 6, 1868, was in time to .escape the bar of the statute of limitations. "Time is to be .computed excluding the day on which the act is done from which the count is made," is the rule as expressed in Brisben . v. Wilson, 60 Po.. St. 452. As respects it seems to me the commissioner has made all proper allowances, and correctly reports the balance {lne on this lien. And now, October 18, 1880, the exceptions to the commissioner's report are overruled, and said report, and the distribution therein made, confirmed absolutely.
VOYLES,
Assignee, v;
PARKER.
(Circuit Court, D. Indiana.
--'-,1880.),
ttl mali, bankrupt, as the administrator of an estate, had given a. bond under the la.w of this state for the faithful performance of his duties as such administrator. On the twenty-seventh day of April, 1876, a suit was brought in the state court upon the bOlld. Under the law of this state such a bond is given to the state, and the suit was instituted in its name. A judgment was recovered in the suit, which seems to have been for the benefit of the defendant in this case, Andrew J. Parker. Rodman, who executed the bond, became a bankrupt by a petition filed on the sixth of June, 1876, and an assignment was made under the bankrupt law of his property to the assignee, which, of course, related back to the time the petition in bankruptcy was filed. Judgment was notrecovered in the suit on the bond against the bankrupt until after the petition in bankruptcy was filed, and the question in the case is whether the assignee is entitled to the property, or the parties interested in the bond of the administrator. It is claimed on the part of the assignee that the assignment cut off by relation, on the 6th of June, when the petition was filed, and before judgment on the administration bond was rendered, the lien which the judgment gave on the property of the bankrupt. The law of this state declares that in suits' instituted by the state upon bonds given"to the state, that the liens upon judgments shall relate back to the time of the institution of the suit; and the judgment which was rendered in the state court declared that in conformity with the law the lien should relate back to the twenty-seventh of April, 1876, when the suit was If the lien operated .from that time upon the property, of course it cut off any claims which the assignee might have, because a petition in bankruptcy was not filed until after a suit On the bond was commenced. That is the controversy between the parties. I think that I must hold, under the law, that the priority of right is on the part of the creditors under the adminis, trator;s bond,and not' on the part of the assignee. The bankrUpt law was not intended to destroy any liens createcl irythestate'law. It is true that it was quite within the bbundffof possibility that, although the suit was commence\l
919 ,on. the 27th of April, np judgment might have \Jeen ,ep.tered upon the bond, or migpt, not be finallyJor: an inde:finite time; still, under the law of this atate, when the suit was commencedon such instrument, 'an inchoate lien had.taken effect, on all the property of the bankrupt within the jurisdiction of the court, and whenever judgment was finally entered it operated by relation to the time when the suit was commenced. The liens of judgments depend very much, in fact, I may say exclusively, in a case at law, upon the particular legislation of each state. In some of the states we know that a lien of a judgment operates from the first day of the term when the judgment is rendered. In some states it operates from the last day of the term when the judgment is rendered. In other states it operates from the time the judgment is rendered, irrespective of the first and last days of the term. In this case there is an express statute upon the subject, and, as I understand, the supreme court of this state has held that administrator's bonds are within the terms of this law,and that a lien upon such a judgment relates back to the tip:le the suit was commenced. ,Then there ,was an inchoate lien on the 27th d,ay of A.pril, on the of the ban,krupt, which became consummated by relaiion :when the judgment was . rendered, and, it cut off, therefol'e, any claim which the assignee might have on the bankrupt's property which related back to a time subsequent to that of the commencement of the suit. It is insisted with a great deal of force, on the part of counsel, that it has been decided in In re Joslyn, 2 Biss. 235, that the lien of a landlord, which he acquires by virtue of a distress warrant, is similar to that acquired by this judgment creditor, and that the same principle which operates upon a lien of attachment and destroys it, also operates upon the lien of the judgment. That case was decided under the peculiar legislation of illinois in relation to proceedings by landlords to enforce their rights against tenants. It required that when a distress warrant should issue and seize the property, that there should be a suit, or an inquiry by the court, as to the amount due; and what was found due was in the nature of a judgment, on which execution could issue against
the property. This court held that within the spirit of the pa;nk:t:upt law that must be. considered subject to thEl same rules and regulations and principles as cases of attachment against the bankrupt's property, and that it should, just as in that case, dissolve and put an end to t4e attachment 'or lien of the landlord: provided, between the day of' the issue, and the levy on the distress warrant, and the time of the judgment and execution issued under the orders of the court, the petition in bankruptcy was filed. I still adhere to the view which I took in that case, as to the effect of the peculiar legislation of illinois in relation to the enforcement of the rights of landlords against their tenants; and, as was stated in that case, ,1 think it was not strictly within the letter of the bankrupt law, but within its' general scope and spirit. In this case it can hardly be said that the same principle applies. Here is an express provision of law, which declares that the judgment .on an administrator's .bond $:hall bea lien day of the' commencement of the 'suit. It was undoubtedly competent for the state to enact such a law, and the bankrupt law, as I think, preserve'a'the lien which the law of the state thus created, and it ia the duty of the federal court toaustain it. Without going at greater length into the considerations 'which operate upon the mind of the court, I shall affirm the judgment of the district court.
nDEBAL BElPOBTBL
BROADNAX
v.
THE CENTRAL STOCK YARD
&
TRANSIT COMPANY.
(Cirouit Court, D. New Jor86Y.
September 28, 1880.)
L RE-IMUED LETTER! PA1.'ENT No. 6,925, dated June 23, 1874, for improvement in apparatus for rendering laru and tallow and other animal matter, and for crisping and drying the refuse thereof, held, under the circumstances of this case, not infringed by the defendant corporation. I. SAME-INvENTION.-The gist of the invention is the apparatus, or combination of parts, and not any particular instrumentality by which it is put into operation. Seyrrwur v. Mar81t 2 O. G. 675. Wheeler v. The Olipper MOl.Ce'f 00. Td. 442.
·· 8AME-SAME-RE- ISSUE-CLAIM.-A re-issue is not therefore void whicb first claims the instrumentality by which the combination or apparatu& may be used. " BAME-8AME-CoNBTRl1OTIoN.-An invention need not in fact be con· structed, in order to preserve lI. patent, when the patentee is a citizen of the United 8tates, and the in,vention is capable of construction and operation froll1the model and specifications filed in the patent-olllce. Wheeler v. l'he Clipper M01IJtII' 00·· IlUpra.
In Equity. Amos Broadnax, for complainant. Leon Abbot. for defenda.nt. NIXON, D. J. The bill is filed in this case against the defend. ant corporation for infringing re-issued letters patent. No. 5,925, dated June 23, 1874, for improvement in apparatus for rendering lard and tallow and other animal matter, and for crisping and drying the refuse thereof. The original let· ters patent, numbered 81,473, were granted to the complainant September 1, 1868. The bill of complaint alleges that the first claim of the re-issue has been infringed. This claim is for a stationary tank enclosed in a stationary heating chamber, and fitted with a horizontal rotating stirrer, by which the material under treatment ie thrown over and over while it is being rendered or dried. . The principal defences insisted upon at the hearing were -First, that the re-issued patent was void, "(a) because the re,issue embraced more than the original patent; (b) because