IB BE WHEELER.
299
above-named sums, as they contributed to the aggregation of moneys which composea::thesum of $4,000, and completed the scheme of the loan society. As the bankrupt received all the profits from that scheme, it is but equitable and just that those who contributed the money to produce this result should receive their advances, with interest on the same. Interest will be computed on the sum of $738 (n.dvanccs as aforesaid) frolL August 1, 1873, and. upon the sum of $020 the interest will be averaged in accordance with the time of payment. Let a decree be prepared accordingly. As to the costs, we think it would be as nearly equitable as we can make it, they should be divided, each party paying an equal portion of the same.
In
7'6 WHEELER
and
Bankrupts. January, 1881.
(District Oourt,'6. D..NewYork. 1. BANKRUPTCY-DEBTS
P1J.oVEJ?7No AssIGNEE-PETITION FOB Du. ST. tlilQ8-WAIVING OBJECTION-CoSTS. At .the time of 1lling the for discharge, within silt months of the adjudication, debts had been proved against the estate. An assignee was elected at a creditors' meeting, ()n thll day the petition was filed,but did not qualify or receive his assignl;llentuntil several .' days afterwards." Held, that the petition must be dismiSsed, there being no assignee duly.qualified to act when the petition filed!,' without such assignee, it could not be had come into his hands within the meaning of Rev. St, § 5108. The creditor having,in his specifications against:the discharge, objected that the petition was prematurely filed, Iwld, that he did nol the objection by afterwards taking testimony undl}t the tications. held, that the objection could not as the court 13 bound, for the prote9tion of all the creiHtors, tosee that all the statutory conditions of granting the discharge arc fulfilled. .Where much time and money werll consumed in taking testimony under the specifications, held, that no costs should be allowed on dismissing the petition, because either party'could have sooner braugl1t the preliminatyobjectionto,theattentiOIl oUhe ·court. '
Also
300
FEDERAL REPOnTEn.
'T. M. Wheeler, fot knkrnpt. O. ,W. Bangs, for opposing creditor. CHOATE, D. J. This is an application for the discharge of Georg.s M. Wheeler, one of the bankrupts. Several specificatio!ls have been. filed in opposition to the discharge. A preliminary objection is taken that the petition for discharge was prematurely filed, and must be therefore dismissed. Wheeler was adjudicated a bankrupt on his own petition, August 14, 1877. The petition for his discharge was filed on the twentieth of December, 1877. Under this adjudication a first meeting of creditors was called 'and held, but it did not result in otanassignee, because, meanwhile, proceedings had been taken for including Willia.m Bailey Lang, who had been a copartner of Wheeler, in the adjudication; and, on the seventeenth of November, 1877, Lang and the firm of W. Bailey Lang & Co. were also adjudicated, and, iS8uedto a meeting of the creditors of both bankrupts, which was held on the twentieth of Deqember,1877, assignee was lsetJJ, who qualified and received an asssignment on the -iiTentyisixth, of 'December, T,here'was, therefore, no ."ssjgpee, at the time the Pricn; to the filing ,.qf the .petition for discharge debts had been proved against !thebankrnpt.' The statute pl'ovides (Rev. St. 5108) that "at any 'time after the expiration of six months frol? the adjudiClJ,tionof bankruptcy, or if no debts, barye been proved against the bankrnpt,ol if no assets have come to the hands of the assignee atariy'time after 60 days, · · · the bankrupt may apply to the court for a discharge." I think it is clear that no application fora discharge (an properly be made within six months after the adjudication, if debts have been proved, unless there is an assignee duly qualified to act; be.cause, until there is an assignee, it cannot be ascertained that no assets have come to his hands within the meaning of iha statute. The form of the petition prescribed by the supreme court, in case it is presented within less than six months, shows clearly that this was tbe view entertained by
, IN DlII.WREELEJt.
the court, (form 51.) It is there noted that in such case the petition should itself state tha't"nodebts have been proved against ,bankrupt; or that ,no assets have come to the hands of the assignee." If, however, it were regular to file the petition within six months after adjudication in case 'debts have been proved, and without the appointment of an assignee, I think the proof in this case is that, if there had been an assignee at the time'of the filing of the petition, there would have been assets in his hands. The petition having been filed before the statute permitted it to be filed, no discharge can be granted. It is suggested that the opposing creditor has waived this objection by proceeding with the taking of testimony under the specifications, but the opposing creditor took the objection in his specifications, andl do not think he can waive the objection if he wishes to do so. For the protection of aU the creditors; the court is bound to that the bankrupt has compiied with the of the atatutewhichare requisite to the granting of his discharge; and, if 'the record shows that he has not done 80, the discharge calinot.be grante4. Either party couldhave hfqpght 'this point to the. attention of the court before expending so ,much time ltnd money in the taking of testimony. IHs certainly no more the fault' of the opposing creditor thaD. His of oankrupt that the not, sooner ,attention of the court. It becomes unnecessary, ,therefore, to consider the other questions whiph arise under the specifications to the merits, since they may not ari6;) in tbecase again if a new petition should be filed. Petition dismissed, without costs to either party as against the other.
801
DDEBAII BIlPOBTBBo
BTIlWART fl. M.utONIlY.· {Oi1'Mlit (loun, D.
MaBBachuBeUB. January 28, 18'11.)
t. INVENTION-NEW RESULT.-Where an invention involves a new result first thought of by the patentee, the fact that the mechanical changes by which the result is produced are not difficult is not necessarily important. 2. DEVICE PATENTABLE AS PART 01'. COMBmATIoN-GENERAL CLAIM.Where a device is patentable only as used in connection with a particular combination, the claim for such device must limit it to the particular combination of which it so forms a part. 8. PATENT-BE-ISsUE No. 6.076-IMPROVEMENT m FOLDmG CHAmaCLAIM Too BRoAD.-In a re-issued patent for improvements in folding chairs two claims were made-the first being for the combination with the leg frames of a folding chair, in which the front leg frame was independent of the seat, of a back frame connected at the lower end to the rear legs and at the upper end of the front legs frame by means of pivots, Whereby the legs were prevented from spreading when the chair was opened, and admitting of being folded compactly together when closed; and, second, for a combination with the frame of a folding chair, provided with an independent back section. of a stretcher attached thereto for supporting the rear of the seat., whereby the strain of the seat was received directly on the back. Th,. simple device of a stretcher in the back of folding chairs as a suppon for the seat was not novel. Beld, that the second claim, as made in the .patent, woullt not, for the purpose of sustaining it, be construed as confined to the class of chairs described. 4. [NFRINGElIIENT-PATENT INVALID IN PART-CoSTS-REV. ST. t 4922. In a suit for infringt'ment, a pa.tent containing two claims was, as to one claim, held invalid, and as to the other sustained. Held that, under Rev. St. , 4922, complainant was not entitled to costa.
In Equity. James E. Maynadier, for complainant. 'Thomas H. Dodge, for defendant. Suit for infringement of letters patent No. 102,179, dated April 19, 1870,-re-issue No. 6,076, dated October, 1874,for new and useful improvement in folding chairs. This was a patent for a folding chair made by a combination of two frames formed by two pairs of crossing legs, with connecting stretchers, and pivoted at point of crossing; and & t'Pubiishtld by request. Paul bar Reported by Homer C. Eller, Esq., of the St.