518
.
REPORTER.
,But for that fa<;t a suit,atrlawwould liEl against Lewis,with agaius't this very .. As I no,w look at this case, stripped of its surroundings of bankru'ptcy Itnd fraud in it,becomes. an an assignee to ,availhimsAlf of the of.a Qourt of Elquity .for the purpose the generalproperty of a defendant, instance", to of his debts,a thing which, so' fa! as lam ' has never been done. r regret that, moved by a to aid the creditors .who been defrauded by the bankrupts and this defendant, Harris Lewis, I have made an order,which, :ppon)ull'consideration, cannot stand. ' .. .' Let an order be entered;vacating the ord!')r of November 22,1880; appointing R. L. Sb,ainwald' receiver in this case, and also dismissing the plaintIff's bilL
In re L
MAHONEY
and ,
RIDDLE.-
(DiBt1'iee Oourt, E. D. PennsyZfJanirt. BANKRUPTCy-ApPOINTMENT OF -DOUBTFUL RIGHT
January14,1881., UNADMINISTERED ASSETS
oF' ASSIGNEE 'TO HEcoVER."-Where, after the death of an assignee in bankruptcy, ·evidence of the existence of administered assets is produced, the coqrt :w!U APpoint new notwithstanding his right to recover such assets may be doubtful, depending upon several disputed questions of law and fact. 2.BAME.-The firm of A" B, & O. dlgsolved, O. becoming partner. A. filed> a petition in bankruptcy in Pennsylvania under the ballkrupt law. of 1841, O.lIUQsQquent1.Y'ftlejl a, petition in New Orleans. O.'s a$signee sold the firl)1 Beforet¥ce dissolutiOn the firm had Qommenced an attachment suIt in Philadelphia againsi a debtor and'had slllrimoried abahiUlsgarilishee. This suit was never tried and no proeeedings in it were had for 34 years, When A.'s assignee having diedthefil'11l filed a petition for the arJ>ointnl of a new assignee to carry nt suit. Held, i :that the petition should be granted, arii! \hatthe" questions 9.f law and , fact on which: the right of the assignee to recover woufd depena, could ,,' not properly be. ()on"iPertld;up<in' this apPlJ,catiQu; " .I ' " "
:'In:' Ballkrrt ptd:rr
! , ,; i
T., I; I '.;
' ) , ." ;.q "!'Heported by( Frank P, , Prichard, Esq,' ' . '" PhUadelpl;1ia· hal'. pf the ; '.' ' '," ' ,! ," . .I.. ',; i .
, IN' BE MAITONEY.
519'
This was a ctElditorsfor, the ass:gnee in place ofa decj3ased assignee of B. Mahoney.: Tpe case was to, (SussexD. :Qavis,) who following facts: In June, 1837', the firnr o(Jackson, Riddle & composed of J!tckson, Riddle, Mahoney,' became 'insolvent arid dissolved, Jackson retaining th'e assets as patt'ner. Prior to their dissolutloh' they had commenced a suit. in foreign attachment against & ,Balik of phia \vas as giitnishj3El.)· A,fterthe dissolutton judg-' ment was obtained" hlthis su,it against Warwick & Clegett. writ 8ci,;e the garnishees. On 18421 Mahoney in this district, individu-' ally, and .1\8 ,aiuembel? 'of thefirm'of 'Jackson, Riddle, ,& Co.,'a volur;.tary'petitiori 'iIr barikruptcy" upon which 'hewa.s' adju,dicated. ,a bankmpt and' discharged; . On. November' 5" a"similarpetition'and was afterwards {e42, J vidually as a member of 'the firm', flted 'It petition' intb,:e disti,'ict' court for the eastern diiitfict bf Itnd in his set forth the Ris sequentlysold all ,the book' 9f the flrlu to one Dyas, whoafterwards them to ,J In 1845 the Gifard Bank, garnif1hees iIi filed answers 'and plea of nulla bona:, Notliihg further was aone in this suit until 1879, when', Mahoney's assignee creditors of the' firm' ofJacksOil,'Riddle' & Co: filed this petition forthe appointment of a catry on the, attachtM assets of the firm ment suit. The teglstertepdrted passed to ndt to assignee, and that consequeritly: 'there' w'er; ·no a'ssets for an oi1the latter to collect:" , including the effect' of lapse of time on the .right to prosecute the attachment suit, were discussed before the register and the court. Arthur Biddle, W. Wynne Wister, C. M. Husbands, and George W. Biddle, for petitioning creditors. R. M. Schick and Benjamin Harris Brewster, for the Girard Bank. c
I
a
520
FEDERAL REPORTER.
BUTLER, D. J. In view of the great lapse of time since the of proceedings in this case, the court did not esteem it wise to appoint an assignee, as asked to do by· the petition of Mr. McCrea, without some evidence of the el.istence of unadministered assets. The application was therefore referred to the register to hear the petitioner and report. Considerable evidence bearing on the subject was presented, and several important questions of law, and fact raised and considerecl,-the Girard Bank, in whose possession assets are alleged to exist, being allowed through its counsel to participate in the inquiry, and to defend against the allegation. The register upon a very careful and able examination of a, question raised by the bank, which he decided'in its favor -,-holding in consequence that no recovery could be hadreported adversely to the petitioners. Without determining whether the register's decision respecting the question considered by him, is rightpr not, and without intimating any opinion on the subject, or any other disputed question of law or fact involved, I have concluded to appoint an assignee. Evidence of the existence of unadministered assets has been produced; and notwithstanding the important questions of law and fact to which my attention has been called, and which must be passed upon before the right of the assignee to recover can be determined, I believe the creditors should have an opportunity of proceeding in the case, and thus testing their rights. The questions raised in answer to the application cannot properly be considered at this time. Anxious as I have felt to avoid any action that might promote unnecessary litigation, I am saHsfied after a very deliberate consideration of the case, that the prayer of the petitioner should be granted, and the creditors.tAus allowed to proceed to recover the alleged assets if they befieve the circumstances warrant it.
HAYES V. LETON.
"
521
HA,YES.V,. LETON.
(UVrcuit (JoUrt, E. D. New York.
January 22,18&1.)
1.
BUIT ON PATENT-ABANDONMENT OF DEFENCE-EFFECT OF DECREE.
A decree in favor of the plaintiff, in a suit founded on a patent, which was reached llecausethe defendants abandoried the d'efenceof the suit and allowed the decree to be entered without objectionartd withoilt a hearing before the court, is not sufficientgrdunduppn which to grant a preliminary injunction in a suit ,in another district and against other parties, on the same pat. ent. A decree obtained under sucbcircumstances can have no greater effect than to show ari acquiescence in the, plaintiff's claim of right by the parties to the former auit. "
, , J. H. Whitelegge, for plaintiff. G. G. Frelinghuysen, for defendant. BENEDICT, D. J. This cause comes before the court upon a motion for a preliminary injunction to restrain the defendant, during the pendency of this suit, from making a certain form of skylight, which the plaintiff insists the defendant is now making, and which the plaintiff claims to be an infringement upon certain patents owned by the plaintiff and forming the basis of this suit. The ground upon which the application rests is that the acts of infringement are not denied in the answer, and that the validity of the plaintiff's patents has been upheld by a final decree rendered by the circuit court of the United States for the southern district of New York, in an action there brought by this san:e plaintiff upon these same patents against August Erickson and John H. Gibson. The defendant insists that the acts of infringement are denied by the answer, and that the decree upon which the plaintiff relies was the result of collusion or agreement tween the parties, and does not justify an assumption, upon a motion like the present, that the patents sued on are valid. Passing the question as to the construction to be put upon the answer, it is sufficient for this occasion to say that the circumstances under which the decree 'of the circuit court for
In Equity.
I"