883 the conduct of the drawee, and it may 'be verbal or written. It may be before the bill is drawn, or afterwards,and it may be by telegram. Daniel, Neg.lust. § 496; Bankv. Richards, 109 Mass. 414; Coffman v. (]ampbeU, 87 Ill. 98. It is true that acceptance does not entitle the acceptor to charge the amount oithe draft against the drawer from the date of the acceptance, unless he paya the whole amount at the time, or discharges the drawer from all responsibility. Daniel, Neg. lnst. § 532. But it has the effect to constitute the acceptor the principal debtor, and it gives him a lien upon the funds and securities i.n his hands for the payment ()f the draft, and this lien runs from the date of the acceptance. In Bank v. Schuler, 120U. S. 511, 7 Sup:Ct. Rep. 644, the doctrine that a check, unless accepted by the bank, will not sustain an action at law by the drawee against the bank, inasmuch as there is no privity of contract between them, is recognized as well settled; and the court held that a check does not become a valid claim upon funds against which it is drawn until the holder of those funds is notified of its existence. The acceptance of the draft in question. was made in good faith, and in the ordinary course of business, on the day preceding the closing of 'the Fidelity Bank. There is nothing indicating that the action of t}le Merchants' National Bank was in contemplation of the insolvency of the. Fidelity, or with the view to prevent the application of the assets of that bank in the manner prescribed by the national banking laws, nor is there anything indicating that the Merchants' National Bank or the Seventh NationalBank had any knowledge or intimation of the1i:npending failure of the Fidelity Bank. Upon this state offMt this court is of the opinion that the transaction was not within the inhibition of section 5242, Rev. St. U. S., and that the Seventh National Bank had the right to apply the proceeds of the collections upon the paper in its hands of the Fidelity Bank, at the date of the acCeptance, to the payment of the draft. An order will be made accordingly.
In re (D#.8trIct
FINKS.
Courl, W.D. Virginw. September 1, 1889.)
OnXOUL BoNDs-CLERK OJ!' COURT-LIABILITY 011' BURBTIBSo'
The BUNtJeli on the bond of the clerk of a district court, conditioned that he shall "pro»e"l:\,: for all money coming into his hands'!urequired by law, are liable fer'biB misapproprlation of money paid to him as clerk under order of court, though such order is based upon the practice of the court, and not upon direct statauthority.
In Bankmptcy. Geo. E. Sipe and J. B. Sttph.itiSDn, for creditors of bankrupt. Leiggert & Strayer, for sureties on bond of the.clerk. PAUL,
J ... '.l'be question submitted to the court in this case for li/;\il>iJi,ty of W. late clerko! this court,. and his sure-
ion is
884
FEDERAL lUiJl?O:QTEB,' vol.
41.
ties for money paid to him during the 'proceedings in bankruptcy by certain purchasers of real estate surrendered by the bankrupt, and solcl in August, 1878. The money was paid under the following provisions of decrees entered in the cause: . A decree entered September 17, 1878, provided: , "'fIlis cause coming on this day to be heard on the rep6rt of sales of the real estate of M. F. bankrupt, made on the 16th day of August, 1878, in pursuauce of a heretofore enteredt in this cause, was argued by counsel, and, it having been suggested to the court that in the decree ordering a sale it was inadverteritlyomitted to appoint a receiver to collect the cash payments, it is adjudged and ordered that John C. Sims and N.B. Early, two of the purchasers of said real estate, pay over to the said clerk of the district court at Harrisonburg, Va., to be passed by him to one of the depositories of this court, to the credit of this cause, the respective cash payments due by them, viz.: N. B. Early, the sum of $671.871 and John C. 8ims, $1,542.00." A decree entered October 16, 1878, provided that the assignee, on"Executing his bond in this cause, in penalty of double the amount of money to bereceived by him. cOnditiohed according tolaw, is authorirlJed to Withdraw from the papers the bonds of the several purchasers"andCQl!ect the same as they fall due, and disburse as herein provided; or, in default of. the execution of such bond by the assignee, the purchasers may pay into,court the amount of their bonds as' they fall due, the clerk to disburse as hereinbefore provided." Under these decrees the said nearly $7;000 of the chase money for the. real estate sold in this cause,and on a settlement of his accounts in connection with this fund by a special master, to whom the cause was referred, the mas1it)r reports an indebtedness on the part of the clerk of as of Augllst I, 1884. The makes an alternate statE;lmeht, by which he reduces this amount$355.0q, by charging the Bank of Rockingham With, certain checks given by W. B. Lurty, which the commissioner 's3:Ys improperly paid by that .bank. To this alternate report exceptions are filed by counsel of creditors of the bankrupt. The supreme court of the United States, in general orders in bankruptcy, adopted April 12, 1875, provides iIi order 28: .. The'district court in each district shall designate certain national banks, if there are any within the judicillljiilltrict,or, if there are none, then some other safe depo!litory, in which all' moneys received by assignees or paid into the court in the course of anyproceedi ngs in bankruptcy s.hall be deposited; and every and the clerk ofs'aid court, shall deposit all sums received by them severally, on aocount of·any bankrupt's estate, in one designated de. pository; and every clel'k shall Iillike a report to the court of the funds re. <leived by him, and of df:.>posits'made by him on the first Monday of every month," . The assignee is required to make a report on the first day of each month to the register, showing, if any, what collections, .deposits, or payments have been made ey him during the preceding month. It further provides: ., " No· moneys so deposited shall be 'drawn from such depositories unless upon a check or warrant signed by the.?lerk of the court or by an assignee,and <lounter-signed by the judge of'thecourt, or one of the registers designated for that purpose, stating the date, the sum, and the account for which it is
· :.,IN BE FINKS.
,
1
4rawn; ,an,dan entry ot tbe:lubstance of such check.or warran,t, thereof, the sum drawn for, and the account for whIch It is drawn, shall forth with made in a book for that purpose by the assignee or the clerk,' lind all checks and drafts shk'll be entered in the order of time i'n which they are drawn;" , At the time the money received in this case by the clerkwas paid him" as far as ¢:!,n be ascertained from the records filed ip. this. case, the depository designated by was the First National of Lynchburg. Two affidavits have ,been recently filed, tending to show that an order, had been passed by Judge RtvES, designating the Rockingham Bank at Harrisb,nburg as a depository, but no record evidence ,of the fact has been adduced. A part of the first, IPoney paid to the clerk, September 30" 1878, was deposited in the First National Bank of Lynchburg, but de-, posits from subsequent payments were: made in the Rockingham Bank,and a balance remaining in the First NationalBank.of Lynchburg was, in October, 1879, withdrawn: from that bank and deposited in the Rockipgham, Rank. The dell-lin,gs of.the clerk, it will ,be seen, were J;lot ,in conformity with the requirements of order 28 of general orders in ruptey; but a portion ofthemoney paid to the clerk was passed byhittl to one of the depositories of the court, as required, by the decree of September 17, 1878, and by rule 28. No report ,was made to the court by tbe clerk ofthe funds received by him, and of deposits made 'by him on the first Monday of every month. The money was 1I0t passed by the clerk to the credit of the eause:of M. F. Finks, bankrupt, as required' by the deeree, but was deposited to the' credit of the clerk, as "receiverin M;' F. Finks, bankrupt." None of the checks orwarrantB given by the clerk' on the by the judge of the court, oraneof designated for tllat purpose." A considerable amount of money received was not.deposited in pank, and the clerk gave era.Hndiyidualchecks on thefulld, and they were plJ,id out ofit· .-"The position oOhe master, ,thatthe securities .cannot be heldljl1plR for: theseindiviqual checks, aI;ldtQat the bank,ia chargeable therewith ·. canllot be mailltained in this rproceeding. The bank is not a .partytQ it, and,whatever may be its ultimate liability to the sureties, if any, ia a question that CI,mnot be considered in the present status of this case.· Counsel for· the sureties on the clerk's official bond conten<l, that.Qo liability: rests on them for the failure of the clerk to properly account for the by him in this case, because they say the court ba.d no power to appoint the clerk receiver of a fund paid into the court; that the. undertaking of the sureties extended only to the duties of the clerk, as clerk, and not those of a receiver. However the clerk may: have designatedh'iUlself in opening a bank. account with this fund, and in giving checks UpoJ;l! it, and however he may have been designated in subsequent decrees an4 orders, the decrees directing the· money to be paid to him by him directed it to be paid to him as clerk of this court, to be tq the cre.dit oithe cause. No subsequent decree in the cause ch!\.nged tbis . Had the court appointed him a special the· cause, it would have required bond of him as such. . .' . v.41F.no.6-25 .
n:DERAL'l1DOR'rESjVOl.
sureties; lind lll'gEid with!so mudi '#1e olerk IS a that aU'bfMs duties are stat. pp dutycaJ,l llpon is prescribed by statute ,-is not correct.' 'There are numerous duties required of hiII!" and that he daily performs, that have no statutory origin. They are to the office',---ilecessa\'yi ipowers conferred! on, the court by reason',of its' existence. They become fixed and established rules ofpl'aoti¢{j, in the United States though no sto:tute,or 'written rule of oourthas' ever declared, them so., The' payment of' m'oney into the· 1regtstryof the coul't,' through clerk as the servant and agent of the Cotttitt where there is alfond' 'under rtbtlocontrol ()fthe court, where there iSba 'hand d:esignated!td' reoeiYe'it;h'itB been in ellfistence from' the foonoatian'of the courts, audis tooifi'l'rhlyfixed to be successfully assailed as'IU>t: beitlg authorized by anya:ct<.of 'congress or rule Qf court prescribed in p'UtSil111nce of an act of ,! ;, , InVu1tican's Hrdrsv. U. SOt !7\'Pet.:445"thecourteays: is 'not essential that ilny changing Its practice. shall dO' Bo'by the adoptionofwritteJ1l Dules.Its practice ,may: be established byauniform mode of proceedingfW,,:sedelSof years, and' thUi (orms the law of the court." , ' , .!' : See, alS() 2 Myer's Fed. Dec.§ 1834. See Virginia, 8 Dall. 820, decided in 1796 1'where the court said: ' J', , "Thegeneralrnle prescribes to uaab adoption of, that ipr8Ctice which is foundedol) thecustolll and usage;Of ,co!lrtsof admiralty and consti" , .
t'Jtl\"rpbsiUoif tAl.ken by
oouI1i$,
or
'. Rule 28 itself recognizes the existence of this practice of paying money int() the' registry-of the court through the clerk, the oourt'sagent, and imposes no new duties, only'directs; how existing ones shaH be performed. St. U·.s."provides that the !'forreSection eeivitlg;keepingjaod paying out money ih pursuance Of any statute ororCOUl't,Joneper centum received',;kept, and paid.This proV-iaion recognizes it as one df the duties of the clerk, :as an officer of tliecourt, pilyouttnoney inpursuatlce'of orders of the eourt.'" This pensation of:1 'per eentumdoes :not, as counsel for sureties ®ntetid" apply to the$,,@deposit for feas in a bankrupt caSe. The)statute ai16Wiftg it was'passed: in '1853, 'afWrthe repeal of the. 'bankkpt O:ct: at 1841';andbeforethepaesage Of that Of 1867. 'Therewas 116 'Dankr\1pHaw in'existence at the time of itspassllge. ' · . . .' ·;;ltis one ofthe bonditionsof the official bond of blerk that be shall "properly coming into his hands," as required by law,· and, he havihg failed to dosl) in this case', the of opinion tbatthe suretiE!S'Oh' his official bond are bound for thEldeficit. A decree will' be, a<lCordingly;' 1 bY" the creditors to thei'master's repClrtmust 'besilstained.The dompensation to be a:lIbwe<Hbe ,not that prescribed'for assignees in !laotion' 5100, Rev. St:l but'thatJfixed in the statute ,prescribingcIerk's fees, (section 828, Rev. S t . ) ' ,-, Jl :;....
as
com
the
, ·.; t··;
DAiv.m: BRADLEY , 1.
MAi.n!rF-'G CO. ,;
J.. TnOMPSON&
SONS.
Limited:,
(O:ln'CUit OQ'U,Tt, N. D.·JUinoiB. . -,. P ATUN'llS .,OR INVENTIONS-I:N'PRINGElIIENT-TJmBB-WUFEL
3O.,1889.)
PLows. '. ClailIls 6al).<112 in letters patent No. ,858,497, November 80, 1886, t() the vid .Bradley Company, in a three-wheel plow, a brace extendfng from the a;xlenear the land SIde to end of the'plow-beam,and two' other:bllBOOsextentl'ing from the arch in theaxle'tQ,the same point, where the three 81'epiV:l>ted to the beam AY a single boa, are infringed by braces fl;OIn the aXle, so.:as, tQ, pivot the, framellnd, plow-beam togetl1er, and secure the same "movement,'l>hough none of the braces extend from the arch. , . , So .....PATENTABILITY-LBVWl& .. ' .'.,' " " ... ' ... " TheleYerdescrlbed in clatiris \land 10 in such letters patent, which is not attached: to but' elrt.ellds nnderthe forward end of tbe ploW-beam, serving to 'regulate the the plow can run and 1'1110 to,raise It out ot .the ground, and hold it in posit-i01!- tortl).rning at;J,d.tl'avellng" is patentable, till! levers in prior use having beeII. appliel,1to the rear end of the \)(jam, and attached to it. . i. 'WHEELS AND F'B#{E. '' , " ..' Claim for the 'combination; with a plow-beam and plow, of the Qa1'l'yingwheelil, frattle, having a eel:1ttal pivotal 01' turning point, is not fringed·by .a plow whose point does occupy. such centml 01' pivotal position.
In Equity. On bill for infri'ngement of letters patent. We8t Bond, for complainant. Hill, 4c for defendant.,
BLODGETT,J. This isabill in equity seeking an injunction sndaecounting by reason of the 'alleged infringement of patent No. granted ,November 30" to complainant. as assignee of John F. Packer, for: a ,"wheel plow." The patent contains 14 claims, but only sixtn"ninth, tenth, twellth, and fourteenth claims are in controversy in this cause; the other claims relating to features in the machine Dot called in·question by the bill. The. plow covered by the patent belongs to what have been .termed "three-wheel plows," in which carrying wheels are employed, with a caster wheel in the rear, which aids in supporting the plow at the proper depth. while plowing, and facilitates the turning of corners or sharp curves, or when it is lifted, for the purpose of traveling from field to field. The: two carrying wheels are mounted upon an axle, the central part of which is formed into a vertical arch, within which the beam is held and guided; and from a point on this axle near the hub of the land-side wheel a brace or rod, E, is extended .backward. to ·the rear of the plow-beam, nearly over what. in the ordinary plow structure, would be the standard of the plow, and two other braces or rods, F, F, are also extended backward from the arch to the same point, where :the three braces are pivoted to ,the beam by a single bolt; thereby allowing theplow-beam,orthe frame, to be rocked upon the pivot made by this bolt. A lever for. lifting the plow out" of the ground, and holding it in that position, is attached to the frame near the arch, forward oftheaxle, by' a hook or arm;, whi('h passes ,beneath the plow-beam, andope1'llJ;es as a limi:tto, prevenUhe plow from. funning too into the ground.,
