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importer may be supposed to understand them. If the buyer, in a doubtful case, should state the purchase either way, as having been made in Liverpool or in Montreal, he is not to lose his property, unless there is some scintilla of evidence that he made a willful misstatement with intent to defraud.

In this case there was no evidence tending in the slightest degree to prove fraud in any direct way. The United States endeavor to prove an actual intention to defraud them, without which no for feiture can be imposed, (St. 1874, c. 391, § 16; 18 St. 189,) argumentatively, as thus: Liverpool was the true place of purchase; when, therefore, the claimant gave Montreal as the place, he must have had a motive; that motive must have been to deceive the appraisers by stating a particular purchase which they would take as evidence of market value. If this roundabout way of proving actual fraud, without any other single fact or circumstance corroborating that view of the transaction, were sufficient to establish a prima facie case, it would, of course, be competent to prove that the market price did not exceed 32 cents at Montreal. But the judge ruled out evidence of this, and ordered a verdict, very properly, because the fact as stated was true, and even if not, there was no reason to suppose that anything but a most natural mistake had been committed. Judgment affirmed.

NEW ORLEANS NAT. BANKING Ass's and others v. LE BRETON, Assignee, and others.*

(Circuit Court, E. D. Louisiana. December, 1882.)

1. ASSIGNEE-REVOCATORY ACTION.

No action, pure and simple, for the annulment of a fraudulent conveyanceno revocatory action-can be brought or be maintained by a creditor or creditors of a bankrupt, but such action must in all cases be brought and be maintained by the assignee.

Glenny v. Langdon, 98 U. S. 20.

2. SAME-FORECLOSURE OF MORTGAGE.

But a bill to foreclose a mortgage, notwithstanding a fraudulent transfer of the mortgaged property, and notwithstanding the bankruptcy of the mortgage debtor, may be brought and maintained by the mortgage creditor.

In Bankruptcy. On demurrers to bill and cross-bill.

*Reported by Joseph P. Hornor, Esq., of the New Orleans bar.

See 7 Sup. Ct. Rep. 772.

John D. Rouse and Wm. Grant, for complainant.
Andrew J. Murphy, for Charles P. McCan.

E. W. Huntington, for Mechanics & Traders' Bank. James McConnell, Robert Mott, and Henry B. Kelly, for defendants. PARDEE, C. J. The case made by the bill and reiterated in the cross-bill shows that the complainants are the holders of certain mortgage paper given by one Williams and bearing on a certain sugar plantation in the parish of Terrebonne, in this state; that S. H. Kennedy & Co. were also holders of mortgage rights on the same plantation; that Kennedy & Co. combined with Williams to make a fraudulent transfer of the plantation, so as to defeat the other mortgage holders, in pursuance whereof a pretended judicial sale was made, S. H. Kennedy becoming the purchaser and transferee, and entering into possession; that subsequent thereto Williams took the benefit of the bankrupt act and received his discharge; that the indebtedness of Williams to complainants was admitted on the bankruptcy schedules; and that defendant E. D. Le Breton is the duly-appointed assignee in bankruptcy.

The relief sought is to have the alleged fraudulent transfer annulled as against complainants' demands, the plantation declared subject to their mortgage rights, for an account, and a foreclosure. The demurrers are on the ground that the complainants have no right to bring and maintain the suit; but the suit, if brought at all, must be brought by Williams' assignee in bankruptcy.

It seems to be clear, and it is conceded for this case, that all suits brought for the benefit of the bankrupt's estate must be in the name of the assignee, who represents that estate, and that a general creditor, an unsecured creditor, a creditor at large, in short any creditor who must look to the bankrupt's estate for his claim, or who derives any of his rights of action by or through the bankruptcy, cannot maintain an action to set aside a fraudulent conveyance of the bankrupt. And, for the purposes of this case, we may go further, and concede that no action, pure and simple, for the annulment of a fraudulent conveyance-no revocatory action-can be brought or be maintained by the creditor or creditors of a bankrupt; but such action must in all cases be brought and be maintained by the assignee in bankruptcy. See Glenny v. Langdon, 98 U. S. 20.

But such rule does not seem to affect the case under consideration. The complainants derive none of their alleged rights through the bankruptcy. Williams' solvency or insolvency would not defeat their action. The suit is not for the benefit of the bankrupt's estate; it is

not intended or calculated to bring a dollar to the hands of the assignee. It is not clear that if successful it will indirectly benefit the bankrupt's estate, even by relieving it of general liability. It is not clear that the assignee could maintain the suit, nor that if he could it would in anywise be to his interest to bring it. See Dud. ley v. Eastern, 104 U. S. 99. The complainants have an interest adverse to the assignee in so far as they claim mortgage rights; for, while it appears that the amount of their claims against the bankrupt are fully admitted on the schedules, it does not appear that their mortgage rights are admitted. If not admitted, a suit to enforce

them would be adverse to the assignee's interest.

The view I take of this case is that it is a bill to foreclose a mortgage; a bill to foreclose notwithstanding a fraudulent transfer of the mortgaged property; a bill to foreclose notwithstanding the bankruptcy of the mortgaged debtor.

It seems clear to me that the demurrers should be overruled, and the defendants required to answer. And such judgment will be entered.

MORGAN ELEVATED RY. Co. v. PULLMAN,

(Circuit Court, N. D. Illinois. December 4, 1882.)

PATENTS FOR INVENTIONS-ELEVATED RAILWAYS.

A patent for a plan and design for the construction of an elevated street railway, to be composed of a series of arches, supported on each side of the street upon iron shoes imbedded in masonry, and connected together by arched trusses and tension-rods, to impart sufficient strength and rigidity to prevent any vertical or lateral displacement of the railway,-the essential element of the invention being the arcs or arches, supported and strengthened in the manner stated, held, not infringed by any elevated railway, constructed without these essential features.

Hamilton Spencer, Henry A. Gardner, and A. T. Ewing, for complainant.

Judge Green, Robert Williams, and Wirt Dexter, for defendant. DRUMMOND, C. J. On the twentieth of April, 1869, letters patent were granted to Richard P. Morgan, Jr., for an improved elevated railway. The bill alleges that the defendant, without the consent of the plaintiff, and since the letters patent were issued to Morgan, has constructed, in the city of New York, an elevated railway upon the plan and design secured to Morgan by the said letters patent, and

in violation of the rights of the plaintiff. The bill also alleges that the plaintiff has become, by proper deeds of assignment, the owner of all the rights of Morgan under the patent.

The defendant, in his answer, admits that he is a stockholder and director of the Metropolitan Elevated Railway Company of the city of New York; but he denies, among other things, that the Metropolitan Railway Company was built upon the plan or design alleged to have been secured by the letters patent to Morgan.

Waiving all questions connected with the validity of the letters patent granted to Morgan, I propose to consider only this question, viz., whether the Metropolitan Elevated Railway in New York is an infringement of that described by Morgan in his letters patent, because if that question is decided against the plaintiff then we need not consider or decide other questions which have been made in the case. It becomes necessary, therefore, in this view of the case, to ascertain the nature and character of the elevated railway described by Morgan in his letters patent, as well as the nature and character of the construction of the Metropolitan Railway of New York. As preliminary to this, however, certain facts and principles should be stated which do not seem to admit of any serious controversy: (1) Morgan was not the first inventor of an elevated railway for the rapid transit of passengers in large cities. The proof shows that other persons preceded him in this field of discovery. (2) Morgan could not be the inventor and so entitled to a patent of an elevated railway in large cities as such, but only to the particular means or instrumentalities by which a railway was constructed.

Morgan, in his specifications, declares that his invention consists "in the construction of a street railway, composed of a series of arches, supported on each side of the street upon iron shoes imbedded in masonry. These arches are connected together by trusses of an ordinary or suitable construction, which will impart sufficient strength and rigidity to the whole superstructure to prevent any vertical or lateral displacement of the railway." He then proceeds to give a description in detail, accompanied by drawings, of the particular manner in which his elevated railway is constructed. Posts are imbedded in masonry on each side of the street. These, rising from the place where they are imbedded, form an arch immediately over the center of the street. There is an interior arc or arch attached to the posts already named, extending across the street in an elliptical, semi-circular, or other curve below the principal arch. These two arcs are connected together by trusses and tension and stay-rods, in the man

ner particularly described in the specifications and in the drawings, an indispensable part of which would seem to be a tension rod of great strength extending from the apex of the upper arch to the lower arch. In the opening between these two arches, left by the trusses and the tension rods, as described in the specifications, is a sufficient space for the cars to run without obstruction. The material of which these posts, arched trusses, and tension rods are constructed is assumed to be iron, wrought iron, or angle-iron. A series of arches being thus constructed at suitable distances from each other, and connected together by longitudinal stringers of sufficient solidity and strength, with proper trusses, constitute the elevated railway described by Morgan in his letters patent. He makes five claims, as follows:

"(1) The elevated railway constructed and arranged in the manner and for the purpose herein described. (2) The arches, a and b, so constructed as to act as a support to each other in sustaining the superstructure and trains in a street railway in the manner and for the purpose herein described. (3) The combination of the arcs or arches, a and b, with the truss frames, c and d, in the manner and for the purpose herein described. (4) The connection of the arcs or arches, a and b, of an elevated street railway by means of truss frames, in the manner and for the purpose herein described. (5) The combination of the arcs or arches, a and b, with the tension rods herein described, so as to resist the vertical and lateral pressure upon the whole superstructure, and by a conflict and consequent resolution of forces, to direct the same in the line of the greatest strength of the material employed, thus enabling a light and economical structure to be used, and interfering in the smallest possible degree with the space, light, and ventilation of the streets occupied and the buildings thereon."

There can be no doubt that in the specifications and drawings, an essential element of the invention described by Morgan, and which is comprehended in all of the five claims made by him, is the arcs or arches supported and strengthened in the manner stated by him; and that any elevated railway, constructed without these essential features contained in the elevated railway of Morgan, does not infringe the patent. We have the testimony of several witnesses who describe the manner in which the Metropolitan Elevated Railway is constructed, and we have also in evidence several photographs which give a distinct view from different points of the railway itself, so that we are enabled to form a very clear idea of the manner in which it has been constructed. There are posts or shafts fastened in the ground, near the curbstone, rising to a proper elevation, across which are placed wrought-iron beams, which extend from one side of the street to the other, strengthened by a short circular flange at the end

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