900

n:DEBAL REp()RTER I

vol. 51.

'In re

f

CARRIER

etal.

D. PennsllL",anw.. August 19, 1m.), A creditor who has attached property of his debtor within fO\lr!#onths prior to the commencement of bankruptcy proceedin!S"s is not bound, under Rev. St. §5075, toexecl:lte an assignment 01 his lien to the assignee, as a condition precedent to in.the distribution of the bankrn,Pt's68tate, when he has ,refrained from enforclDg lien inob6iiience to an inJunction from the bankruptcy court; for the ati.achment, v'oid or voidable under section 5044, does not come within the of sectIon 5075.
Oll LXWNS.

In Bankruptcy. Sur exceptions to the register's report. The former opinions of the court upon questions arising in the same proceedings are reported in 39 Fed. Rep. 193'; 46 Jj'ed. Rep. 850;47 Fed. Rep. 438; 48 Fed. Rep. 161. Exooptions sustained', and report modified. ThomMB: Alcot'n andLyan, McKee & SandetsDn, for creditor. Levi· Bird for assignee. ,BuFFING'roN, DistrictiJudge. E. G. Carrier has excepted to the report of the Tegisterin tbat:he has refused to award him $6,101.84 as adividend,upona note made ,by John Carrier, one of the bankrupts, and owned by the exeeptant. The register has found the note, was a valid debt,andGamer is therefore prima facie entitled to thedividertd. This the' registerhss failed to allow him for the following reasons: In the circuit Court of Bay county, Mich., on May 22, 1874,' E. Go: Carrier issued :an; :attachment againstJohn Carrier, by virtue of which personal anduJiealiproperty, in excess of the present claim, was attached. He IS of.opinion thlltE.G. Carrier n<.lverhaving assigned his right in said to ,the assignee,as provided by section 5075, Rev. St.; he irr this fund. Had ended here, we· must find ·theregistei"i correct;· .but there are other facts which ally change the.question.···,mhepetition in bankruptcy was fiIed,'June 11, 1874, arrd,the adjudication made June 22d; the attachment was tberefore clearly. within the four months' voiding clause of section5044j Rev. St. Whether voidable :01' void we need not inquire. If .not void ipso facto, it was without, doubt voidable, and conferred' on E. G. Carrier no against the assignee. On September 12, 1874 j pending the appointment of an assignee, Andrew F. BaUIn, a creditor of John Carrier, presented a petition to this' eourt praying for ,an injunction to restrain E. G. Carrier from prosecuting this attachment, and alleging the same was void. His prayer was granted, aud an order made as follows: ..And it is further ordered that until the decision of this court upon the said motion the said parties against whom an injunction is prayed are restrained III ... ... to abstain from any and all interference by execution, levy, sale, or any other manner whatever with the property or estate of the above-named debtor, John Carrier." This injunction was served on E. G. Carrier, September 14, 1874. He made no answer to the petition, and has obeyed it; his attorneys ir.
i

IN RE CARRIER.

901

"Michigan instructing the sheriff not to proceed thereon. Carrier has never realized anything upon it, the assignee took no steps to repudiate the antion of the creditor taken prior to his appointment, and the injunction is in force to--day I presumably with his consent, and at any time he could have had it made perpetual, as prayed for. . . . The attachment having been made within four months next preceding the commencement of the bankruptcy proceedings, we are of opinion (this court having enjoined Carrier from proceeding on his attachment, arid he obeying our order,) that it would be very inequitable t01J.ow presume his claims had been satisfied because the sheriff had attached sufficient property prior to our order. Nor do we think that this pase comes within the spirit, or even the letter, of section 5075, requiring a conveyance, etc. That,statute was evidently pasl:led. to cover valid ,claims against the bankrupt,not void ones, and to aid in disposing of the bankrupt's estate to the best advantage. It was not meant toqpply to cases where there was no lien, where the process of attachment was within four months of the bankruptcy proceedings, and where there, )vas, in fact, nothing to conveyor release to the assignee. There was n6;reaasson why such claims should be conveyed. It was the signee to void them entirely as being invalid, under section .5044, and not to taIre a conveyance or release of them as being valid, under section .')07'5.' Such release byE. G. Carrier at any time, of all claims hpder the attachment, would have conferred no rights on the assignee which already possessjand; if the attachment were a to the sale of the bankrupt's lands in Michigan, this court could and would have granted the necessary relief. The fact that it was not asked for by the vigilant assignee shows there was no trouble from it. I .:. The burden of showing some sufficient reason why E. G.Carrier'sho'uld not be I,>aid the dividend upon' his note rests upon those objectirlgi·theteto. We are ofopinion they have failed in meAting this burden. The· sum of $6,101.84, being the pro rata share of E. G. Carrier's third claim, is therefore awarded him, arid to that extent the exceptions are BustaiD!E:d, and ,the register's report modified. ; ti " .·
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f1.CJiurBlllRs & McKnGLAss Co.

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August 11, 1892.)

t. P.'I'1IX'I'8

POll INV1INTloNs":'Exn'T'07:b.L.nt:s.:..oU88.MRLTING TANlI:S. Lotterl!lpatent :No. 261,OM, i88ueii-July 11, 1889. to 0.· W. Siemens, as assignee of covIlr u a taI!k ,con ti nuoul! of glass, having gas and air Pcirtt add of tile deptll Ilerelu' described, for the purpose of forming. below the. ,fluId, portion of the' memli;! "'layer of metal in · semifluid or partially solid ClOu9.Wllll, as anQ for tile purpo," described." his specifl.catlonsthe, applicant Iitate1i.tbat."in the fusional window or other wllite glass 'there Is a continthe particles: throughout the mass, as uousdesPllDdil1g and ascending Is provel1.Jlt thMVllaring away of theJlotl;Omll ot sllallow tankll. The advantage to be obtalUed ftOm locreashlg the deptlt of the tanks will be the formation of a of chille.11"1;1..it at. the bottom, at wih.lcJi., 'point the movement of particlell ceaSe8, . from wear. the presence of Iltone In the Whereby t ebottom blocks will be glass avoi etl, a;ild a larger proportion of drst-quality be produced." Held. that tile iDcre ..alied de p t.1I of the tank .was/Oll.Iy for :tbe pUrposell here specified, alid elld not, and was not intended to. prodae tor the alleged disoovery of the .o-called "vertidal fining It of the glllSS. . .

.. S.M.-NO'fBlJI'l'-PRIOR ART.

Tb,e11uld layer and Its function aa wellaa the allcending and de800ndlng motion of the particlell, were known In tbe prior state ot the art, as shown in the Gr,nger patent, (1879,) No. 80,623; patent, (llS70,) No. 103,2OS; and the followIngtorelgn pq,tepts to O. W. Siem8ll!'= ,.English, (1tltl8,) No. 1,179; French, (18;6,) fill. 110,125 j Itallal:l, (1877.) ... S.ur....ANTICJPi'1'ION; The patent It"anticipated by the ,!Jelglan patent ot 1877 to O. W. Blemen·· whloh Dot onlf' Ilhowed a tank exoeeding lli}nches in depth, but met eve17 other requirement; 0 the olaimand lIpecificatioDIl.· The 18,90, oomplaioants toproTe that defendant'. furnaoea perform the functlons,covered by the patent, and it Is Itlllufticient to show that theoretically the7 ahould do 1IO,0l! *,erelyliO meet proof. as to the aotual fact.

... &M_INJ'RIN.OBllklfT-BuRDIIN oJ'Paool'.

In Equity. SuitJol' infringement of patent. Bill dismissed. KtJrf' & Curti,land H. Ch:rlsty,for complainants. lama I. Kay and Jiranci8 for defendants. Before BUFFDlGTON, District Judge, and ACHESON, Circuit Judge. District Judge. Tbissuit is brought by George H. BenJamin, in the name of Frederick Siemens, of Dresden, Ge):many, and Alexander Siemens and others, executors and trustees of Sir WiUiam Siemens, late of We!'tminster, England, against the Chambers & McKee Glass Company, of Jeannette. It is for an aJleged infringement of patent right in detimdants' using what are known as "deep-tank" furnaces. The questions to be passed·upon are of grave im.portance, involving, as they do, the right to use for continuous glass melting any tank of a depth of more than 18 inches. In view of its far-reaching results, the case delerves, and has had at the hands of the court, a patient hearing of the able and interesting arguments, and a laborious examination of t:1e testimony and questions raised. A brief resume of glass melting will lead to a more intelligent understanding of the controversy. Formerly glass "Vas melted in pots about 39 inches deep. They were expensive to construct, and subject to frequent breakages, caused by the variations in temperature between the uJeIting and working processes. Theywere charged with batch or materials for making glass, placed in furnaces and