UlDHAN ".LA ,"ORO" II
'98
cork bark, manufactured." Therefore, on the testimony of this case 81 it stands, touching the manufacture or this article, I am unable to accede to the proposition that it is covered by the 422d paragraph of the tariff act, and I Bhall therefore direct a verdict for the defendant.
LEmlAN .,. LAFORGE. (Ci1'CUU 001lll1, E ·. D. New Yorlc.
May 18, 1MO.)
L
BANXRUPTOY-lI'BDBBAL JURISDICTION-RIGJlTS OF ASSIGNBB. Under Act Congo June 7, 1878, (20 St. U. S. p. 99, 0. 160,) and act of Maroh 11,188'7, (24 St. U. 8. P. 552, C. 878,) repealing the bankrupt law, except 811 to cases pending,
a.
includi\lg rights of debtors and creditors, "and rights of and suits by or against assignees" in any matter or case which bad arisen, or which might thereafter arise; and laving the jurisdiction of lObe United States ctrouitcourts in such C8lI6I!, the circuit bas Jurisdiction 01 a suit by an assignee in bankruptcy to preven\ a person from estabhshing on the bankrupt's property, by proceedings in a state court, the lien of a fraudulent judgment obtained in 1869. . In such suit, though the judginent W8ll rendered by a court of competent jurisdiction, and Is regular on ita faoo, the oral admissions and declarations of defendant that·it was fraudulently o\)tained are sumcient to defeat its operation, where such statementa were deliberately made, in answer to inquiries by interested persons, and with such detail of circumstanoos and re8ll0ns 811 to leave no doubt that be fullyundel!stood what he said. OF ASSIGNEB Ilf BANXRUPT'S PROPBRTY.
SAME-8UIT TO ENJOIN ENFORCEMBNT OF JUDGMBNT-EvIDBNCB.
.1.
s., MF.-INTBRlST
nev. 8t. U. S. § 5046, vesta in the assignee in bankruptcy lObe title to aU property ot.the l:>ankrupt conveyed in fJ1aud of creditors; and Code CiviiProo. N. Y. 1382, provides that actions founded on frand, except for the recovery of money, do not aocrue until the fraud is discovered. Beld, that an assignee in bankruptcy has summent interest in property conveyed by the bankrupt in fraud of creditors, where the bar of the statute of limitations is not completed, from the time the· fraud W88 discovered. to maintain a suit to prevent sncb property from being subjected to the lien of a fraudulent judgment. lt is not necessary, to entitle the assignee to malntain suoh suit, tbM be baTe actual possession of the property.
'- SAMB-POSSESSION OF PROPBRTY BY AsSIGNBB.
BAME...,.LIMITATION OF ACTIONS BY ASSIGNEB.
6.
SAMB-POSSBSSION BY ASSIGNBB.
In Equity. Hffnry Daily, Jr., for the orator. Roswell W. KeeM, for .defendant. WHEEI,ER, J. On November 3, 1869, judgment W88 entered in the 8uperiorcourt of the city.of New York in favor of the defendant against
lIoar for $4,995.48., o.n 5th day of Jllne, , Hoar a bankl1upt in this CiUstrict. His 'property ,;was concealed, to it sOO04 intbe names,of others, andillQne ofitcame to the hands of .the assignee. Deedg ,of it from thosein, whom. the title stood were made, and delivered privately to him, and kept by liim without being registered. He died in 1885. An administrator of his estate was appointed; and these deeds, found among his effects, were registered. On the 24th day of May, 1888, judgment was entered on the former judgment in the supreme court in the county of Kings in favor of the defendant, against the administrator, for $11 ,064.49, Rnd thereupon proceedings were commenced for the sale of the real estate in the surrogate's court for the satisfaction of this judgment. At the instance of creditors in bankruptcy, the orator, on the 8th of March, 1889 f: WJlS, the in bankru'ptcy, place of the former property, on the 5th day of June, 1871, of the bankrupt" assigned ,to This bill was brQught,on the 12th of in which the orator alleges that the judgment in favor of entirAlY,without 1j\nyfoundation,whatElyer, and wholly fraudulent and void as to creditors in bankruptcy, and prays to relieve t4e iIJ"pankruptcy(from it. ,The answer denies that the judgmentwaswithout foundation, or fraudulent, and that the estate representil.':propertyof the b'llnkrupt in 1871, and challenges the jurisdiction onhis court. The act of June 7, to repeal the bankt'uptlaw, left the provisions of that law in, force as toa11 pending cases, and Juture proceedings including 'rights of debtors find creditors, "and rights of and suHs 1)y or against assignees," in any matter or ease which had which should therealterarise., 20 St. U. S; p. 99, c. 160. The circuitcQu:rJshl,l.ve in matters of bankruptcy·. Rev. St. U. S. § 630. The title of the orator arises wholly by the laws of the United ay,'Il jurisdictioll of,this court if a suit upon it is saved by the act of March 3, 1887, (24 St. U. S. p. 552, c.37S, § 1.) The jurisdiction of this :.seeJ}ls unquestionable; .' Lathrop v. Drake, 91 U. S. 5i6 j' Burbank V.Blgelow, 92 U.,S. 179· . and fraudulent characterof, the Judgment,rests upon oral declarations of the defendant. Counsel argue, in his behalf, that shch evidence is inadequate to defeat the operation of Qf record reglllar on That the ada·party are competentevidetice against him, that {lil<if.li! are as them to be, is elerp.entary. Best, Ev. §§ 519, 520, (Wood's Ed'V94S;) Gai!M8 v.,Retj, ,lEa How. 472; Insurance Co. v. Newton, 22 Wall. 32. If the declarations were merely casual or loose, and disputed or explained, they might be regard as of insuffi1d cient weight to impeach the judgment. But thelm'lltatements of the defendant appear to have been made deliberately"in an.'Jwer. to inquiries made by those interested, at several times, to various persons, and with so;inncJi,mfail ofcircnm'Stdnces(and rl:'ilsons as to:1el\ve no room for doubt that t.J1e'defendaot fUilly,uuderstood,whathe said,.,,.-jIlid what he meant,
in
(",I
. LEIt'MAN'V. LA FORGll:·
......ortbat what:he said been correctly reproduced.: The defendant is a competent witness, near by, and he has not testified in explanation or denial of his statements, nor produced any evidence to show the facts :'to be in reality otherwise than according to his statement.'! as proved. The weight of the evidence, when it is dOnsidered, is quite satisfactory to the extent and effect that the judgment was a mere hollow sham, set up as a menace to those claiming to reach the property of the bankrupt; and that the defendant is now seeking to take advantage of the position of creditors iIi the judgment to ireach the property of the bankrupt, contrary to thEl'ljurposeof the judgment, and to the rights of the creditors of the bankrupt.' Hopt v. Utah, 110 U. S. 574, 4 Sup. Ct. Rep. 202. That the rell! estate in question was' partly property of the bankrupt on J uhe 5, '1871,arid'partly came from such property, the title to all of which was concealed tiUaftel'adininistration on the bankrupt's estate, also satisfactorily appears. The placing of the title in the name of others was a conveyance in fraud of creditors, and all property so conveyed' by a "bankrupt, was by the bankrupt law e:X:J>Tessly vested in the assignee. Rev. St. U. S.§ 5b46. Such a. judgment as this would be void by the principles aBhe (Jommon law aS'affirmed and enacted in the statute of 13th Eliz., Which is a partof the common and statute law of this country in respect 'to creditors. 4 Kent. Comm. 462. The assignee in bankruptcy has ever since he has been such had the right to this property of the bankrupt, free from thisjudgment, whenever it coUld be discovered and reached.;1 The case does not !show that any other person is claiming this property'adversely to the orator; and, if such claim should be made, the right of'theorator'wonld seem to be good, and the fraudulent concealment bf'title'might be 'sufficiEmt to save it from loss by any statute of limitations, should it be set up against the right. By the laws of the state,' actions'founded onfrand, except for the recovery of money, do not accrtie till the fraud is discovered. Code Civil Proc. § 382; That l;;tatute, al;; a rule ,'of property; might furnish aguidein this court with reference:to general 'statutes of limitation, which are somewhat relied uponinargumanto (J{n,rkv. Smith, 13 Pet. 195; And, usually, time does not begin to run agslnst tights of action concealed by fraud till after the fraud isdiscovered. M"u;houd v. Girod, 4 How. 503; Moore v. Greene, 19 How. 69; Badgm- v. Badgm-, 2 Wall. 87. The orator thus appears to have sufficient title to and interest in the property to maintain this bill. Ward v. Ohambirl.ain, 2 Black, 430; Stone-Gutter 00. v. Jones, 21 Blatchf.138, ,13 Fed. Rep. 567. , Counsel for defendant raise objection, in argument, that the orator has not possession; but neither bill or answer sets up either possession or want of it, or makes any question about it. In the former of the two cases last cited, possession in such a case does not appear to have been deemed' material; and, in the latter, that the orator was not in possession clearly appeared, and yet the bill was maintained. The defendant'sjudgment did not of itself constitute any cloud upon the title. He is endeavoring by proceedings in the surrogate's court to create onei and this bill is brought rather to prp;vent than to remove one.
DDERALREPO:wnm,
vol. 42.
The,limitation :oftwQyears on suits by assignees in bankruptcy, impO$ed:by section 5057, nev. St. U. S.tl is relied uponlt$ bar to this suit. If this statute was setup, and its running would not be saved by fraud, it would seem to be a bar to any suit to set aside the original judgment. But this suit is not maintlJ,inahle in this court to set aside or anqul the judgment of the state court as such. The orator has no right or interElst in that jud?;ment. He is interested only in preventing proceedings upon it to reach the property of the bankrupt. These haveb:eenstarted by the defendant within the two years. The right of action again!t them accrued within that time. All the orator is entitled to is to.have thOSe stayed. Ward v. ahamberlain, and Stone-Cutter Co. v. JoneB>",before cited. Such a stay appears to be excepted out of the prohibition of injunctions in the United States courts to stay proceedings instateeourts, being a proceeding in bankruptcy. Rev. St. U. S. § 720. , LeavQ' is asked in behalf of the defendant to set up the statute of limitatiens; .if necessary his rights. It would n.ot save anything .against this relief. Besides, this discretion would not· be freely exercised iil aid; of a bar. to relieffrotn proceedings on such ajp.dgment. . Tlilatthe orator may not obtain possession of this property as against othe;sdsurged as a reason for not granting relief aga,inst thed'efendant. But diverse claims cannotbe all settled at once. The defendant instituted tbebankruptcy proceedings, and is a party to them, entitled to move to speed,·them. If the proceedings go through without reaching this property, the orator's right to it; on which relief bere is founded, will fail, and it will.still be IeIt for administration in the surrogate's court. If, as urged with plausibility, and perhaps correctly, any after-acquired property came with the other property into this real estate, so that creditors have a right to a share ofit' outside of the bankruptcy proceedings, the bankrupt law provides for, the adjustment of such rights in the. bankrupt court in favor of those entitled to them. Rev. St. U. S. § 4972. All just claims of the defendan.t may be'safely followed there. Let a decree be entered in favor of the orator, as assignee in bankruptcy, for an. injunction to restrain the· defendant from fU,rther proceedings in the surrogate's court against the property in the bill of complaint described, during the pend. :ency of the proceedings in bankruptcy,. with costs. lJ;tev. St. u,-s. §5057.provides tl;lat "no suit, either at law or in equity, shall be ,lllaintainablein any court betWeen an assignlle in bankruptcy and a person claiming an . adverse interest; touching the * * * rights of property transferrable to or vested in such assignee, unless brought within two leaN from the time when the cause of fpr pr assignee. * *"
;.:
ADEE V. PECK.
497 .
ADEE V. PECK
et 01.
(Circuit Oourt, D. Oonnecticut. May 14, 1800.)
1.
PATEN'1'S FOR INVENTIONS-PATENTABLE INVENTION.
Reissued letters patent No. 6,789, issued November 16, 1875, to James Foley, for an improvement in waste-valves and overflows, consisting in bringing up the outer 'pipe of the overflow through the casing contiguous to the basin or bath-tub, and securely attaching it to a removable cap resting upon the outside of the casing, is not invWid for want of invention.
The claim of said reissue being substantially the same as that of the original paten,t,. that it gives a statement of the prior state ilf the art, so as to limit. the scope of the patent, and omits the element of a rubber ring around the valve, which Wllo8 only an incidental feature of the invention, and was inserted in the original claip) by mistake, the reissue is valid. . S. NAME qF PATENT AS TRA.J>E-MARK. A bill that defendant has infringed a patent owned by complainant, and .originally granted to Jp,mesFoley, for an improvement in waste-valves, and that complainant has sold said under the trade name and.style of "Foley's" .and "FoleY's Patent," and "that said trade name, dUring the life of said letters patent, ilI"i«elltified thereWith, ant!. of great value ..* in said patented the defendant has s\lld his infringing valves .uncier valves .as,a the trade name of 'Foley's Patent Valves,'" and praying, inter alia, that defendant be enjoined from selling any waste valves under the name of "Foley's" or "Foley's Patent- Valves," states only one good cause of complaint, 1. e., for infringement of a patent. The name of the patented device is not, properlyapeWrlng, a trade-mark. Following .Adee v. Peck, 89 Fed. Rep. 209.
.. SAJIIE":'REISSUE OF LETTERS.
I'n Equity. Briesen <to Steele, for complainant. Edward H. Rogers, for defendants. WALlJACE, J. This is a suit to restrain infringement of reissued letters patent No. 6,739, granted to James Foley, assignor, November 16,1875, upon an application filed October 1,1875, foran"improvement in wastevalves and overflows." It is also brought to restrain the infringement of an alleged trade-mark in the name, "Foley's Patent Valves." The defendants arernanufacturers and dealers in plumbers' goods, and in 1882, or earlier, purchased from the complainant the patented valves, and sold them in their business, describing them in a catalogue issued by them as "Foley's Patent Valves." In 1886 they commenced to manufacture the valves themselves, having, as they say, satisfied thetr.selves that the patent to Foley was invalid, and consequently that the complainant was not entitled to a monopoly in the manufacture and sale of the valves; and since that tim,e they have continue.d to manufacture and sell the article, calling .them ",Foley's Patent Valves." _ The subject of the patent is an improvement in devices for permitting the overflow of basins, baths, etc., to escape, when the water reaches a given elevation, by means of the valve, whicb is closed to permit the basinor bllth to be filled, Such devices consist of a vertical tube or standpipe which connects by a T coupling with. a pipe leading to the basin and a waste-pipe, and having a valve-seat at its lower end, so located in relation to the basin-pipe and the waste-pipe that when the valve is closed flowing .into the basin cannot escape. The stand-pipe v.421t'.no.9-32 -