916, 75 C. C. A. 657, and cases therein cited, as authority against the conclusion now reached, but on examination they are not found to raise the question now before us as to the effect of code pleadings. The judgment will be reversed, and the cause remanded to the Circuit Court, with directions to dismiss it unless by some appropriate proceeding jurisdiction is made to appear. It is so ordered.

In re WYLIE et al.

(Circuit Court of Appeals, Third Circuit. April 29, 1907.)

No. 19.

BANKRUPTCY-RESALE OF PROPERTY-RIGHTS OF PURCHASER,

A sale of property by a trustee in bankruptcy was set aside by an order directing a resale of the property "free and discharged of and from all incumbrances," and requiring the petitioner to give security to bid an advanced price offered, and, in addition, such sum as might be awarded to the prior purchaser. Pending an appeal from such order the court vacated a prior order staying execution on a decree of foreclosure previously entered in a state court, but requiring the petitioner, with its consent, to make a similar bid at the foreclosure sale. It became the purchaser at such sale at a price largely in excess of that which it had undertaken to bid. Held, that it was entitled to the property free of incumbrance, the same as though the sale had been made by the bankruptcy court; and that the amount awarded to the former purchaser, and the costs in connection therewith, as well as the accumulated taxes on the property, should be paid by the trustees from the proceeds of the sale.

Appeal from the District Court of the United States for the District of New Jersey.

Robert Adrain, for appellants.

George S. Silzer, for Joseph Allgair.

J. Hill Brinton, for Sayre & Fisher Co.

Before DALLAS, GRAY, and BUFFINGTON Circuit Judges.

DALLAS, Circuit Judge. When this matter was before us upon the petition of Joseph Allgair for annulment of an order of the District Court, dated July 24, 1905, setting aside a sale of the property of the bankrupt which had been made by the trustees to said Allgair, that order was affirmed, with direction for further proceedings in connection therewith; and if, in pursuance thereof, the trustees in bankruptcy had again sold the property, the questions now presented by their petition for revision could hardly have arisen. Allgair v. William F. Fisher & Co., 143 Fed. 962, 75 C. C. A. 148. The taxes in dispute would unquestionably have been for payment by the trustees; and it is quite clear, we think, that the sum to be paid to Allgair, and the costs incurred in determining its amount, would have been payable from the proceeds of the required bid of "not less than the sum of $60,000, and, in addition thereto, such sum" as might be awarded to Allgair.

But shortly after the making of the order of July 24, 1905, Joseph Allgair appeared in the District Court and (as explained by the learned judge of that court) "offered to place the property in the

possession of the bankrupt's trustees, on terms not necessary now to be stated, to be held by the trustees pending the appeal, which offer was accepted. There were at that time two mortgage incumbrances upon the bankrupt's property-the first for $24,000, with accrued interest, and the second, which had been foreclosed in the New Jersey court of chancery, and merged into a final decree, for something over $15,000. Sale under the execution issued upon this decree had long been stayed by this [the District] court. Feeling that the stay ought not to be continued during the pendency of the appeal above mentioned, an order vacating the stay was signed on August 14, 1905. As the making of this order rendered it possible for the complainant in the foreclosure case to sell the property under the execution issued in that case, and thereby defeat the purpose of the order of July 24, 1905, which was to secure a sale of the property for a larger sum than $55,000, another order, dated back to July 31, 1905, the terms of which were agreed to by the Sayre & Fisher Company, was made.' The provisions of this latter order are sufficiently set forth in the opinion of the District Court, and need not be repeated. In re William F. Fisher & Co. (D. C.) 148 Fed. 907. Of its general purpose. and that of the agreement respecting it, we have no doubt. The manifest intention was to permit a sale under the foreclosure proceedings, at which the Sayre & Fisher Company was to bid in substantial accordance with the agreement it had made when a resale by the trustees was contemplated. Accordingly the foreclosure sale did take place, and, as was anticipated, the Sayre & Fisher Company became the purchaser. It paid for the property a larger sum than it had undertaken to pay, and the bankrupt's creditors have been correspondingly benefited. Its obligation to bid at least $60,000, and. in addition thereto, the sum due to Allgair was fully discharged, and, except by so bidding, it had not agreed to provide in any way for the Allgair claim, or to bear any costs in connection with it. So, too. as to the taxes. There was no agreement by the Sayre & Fisher Company to pay them, and the foreclosure sale, in its relation to the bankruptcy proceedings, was but a substitute for the resale which the order of July 24, 1905, had directed the trustees to make. Therefore, though the order of July 31, 1905, was silent on the subject, we think that the Sayre & Fisher Company, having redundantly performed its undertaking to bid, had a right to assume that, if it became the purchaser, it would take the property, as the order of July 24, 1905, had provided, "free and discharged of and from all incumbrances."

The order to which this petition for review relates is affirmed.

UNITED SHOE MACHINERY CO. v. GREENMAN.

(Circuit Court of Appeals, First Circuit. March 27, 1907.)

No. 663.

L PATENTS-ANTICIPATION—ABANDONMENT OF MACHINE.

A machine fully embodying a device subsequently patented by another does not lose its effect as an anticipation because its use was abandoned, solely for the reason that the product in making which it was employed was not successful, where it is shown that the machine operated successfully, and that the maker did not abandon the invention embodied therein. [Ed. Note. For cases in point, see Cent. Dig. vol. 38, Patents, § 73. Abandonment of invention, see note to Hayes-Young Tie Plate Co. v. St. Louis Transit Co., 70 C. C. A. 6.]

2. SAME-CLUTCH.

The Davey & Ladd patent, No. 672,056, for a clutch for starting and stopping machines, is void for anticipation by the clutch previously employed in the Stiles-Thomson machine for setting lacing studs in shoes.

Appeal from the Circuit Court of the United States for the District of Massachusetts.

For opinion below, see 145 Fed. 538.

William K. Richardson (Joseph Warren, on the brief), for appellant.

T. Hart Anderson, for appellee.

Before COLT and PUTNAM, Circuit Judges, and ALDRICH, District Judge.

COLT, Circuit Judge. This is a suit for infringement of the Davey & Ladd patent, No. 672,056. The patent was applied for March 31, 1897, and issued April 16, 1901. The court below dismissed the bill, and the case is now before this court on appeal.

The Davey & Ladd patent is for an improvement in clutches for starting and stopping machines. The improvement relates particularly to the stopping feature of the clutch. The specification says:

"This invention relates to a clutch and is shown as embodied in a clutch adapted to be used on sewing-machines, nailing-machines, and in machines in which it is desirable to stop the machine at a definite point in its cycle of movements as, for example, in the case of the sewing-machine when the needle is at its highest position, or in the case of a nailing-machine after the mail is driven and when the parts are in the position to receive the material or at a position to receive the nail to be driven at the next operation of the machine. * * * The machine is thus stopped automatically at a definite point in the rotation of the main shaft, a, and therefore at a definite point in the cycle of operations of the instrumentalities actuated by said main shaft."

In machines to which the Davey & Ladd clutch is adapted, the machine should not stop while performing its cycle of operations, as, for example, in a nailing-machine during the various operations necessary to drive the nail. The characteristic feature of the Davey & Ladd clutch is that the machine is always stopped at the completion of its cycle of operations. Since the cycle of operations takes place at each revolution of the main shaft, this result is accomplished by so organizing the clutch that the machine is stopped at the same pre

determined point on the main shaft. In one form of the device, the machine may be stopped at the completion of any number of revolutions of the main shaft, or at the completion of one revolution, depending on the will of the operator. In the other form of the device, the machine is automatically stopped at the completion of a single

revolution of the main shaft.

In the organization of the Davey & Ladd device, we find a clutch member provided with a frictional surface at each end. This clutch member is connected with the main shaft, and is capable of a longitudinal movement thereon. When the operator presses the treadle with his foot, the clutch member is moved by a spring into contact with the frictional surface of the driving belt pulley, and the machine is set in operation. When the operator removes his foot from the treadle, the clutch member, by means of a cam on the main shaft and connecting mechanism, is moved away from the driving belt pulley, and into contact with the frictional surface of the stationary brake, and the machine is stopped. In a modified form of the device, the connecting mechanism between the cam and the clutch member is so arranged that, when the operator presses the treadle with his foot, the machine is automatically stopped upon the completion of one revolution of the main shaft. It is by means of the cam and connecting mechanism co-operating with the clutch member and stationary brake that the machine is stopped at a predetermined point on the main shaft, or when it has completed its cycle of operations.

The charge of infringement is limited to claims 2 and 6 of the patent. Claim 2 reads as follows:

"(2) The combination of the driving clutch member of the machine provided with a friction-surface; with the main shaft, and a driven clutch member connected to rotate therewith but capable of independent longitudinal movement thereon and provided with friction-surfaces at its opposite ends; and a stationary friction-surface or break, and means for impelling said driven clutch member into engagement with the friction-surface of the driving member, and connecting mechanism between the main driven shaft and driven clutch member for moving said driven clutch member out of engagement with the driving member and into engagement with the brake, substantially as described."

Claim 6 is substantially the same as claim 2, except that it specifies that the clutch is engaged with the brake "at a predetermined point in the rotation of said main shaft, whereby said main shaft is stopped in a predetermined angular position."

The combinations described in these claims comprise six elements: (1) The main shaft; (2) the driven clutch member connected with the main shaft and capable of longitudinal movement thereon, and with frictional surfaces at each end; (3) the driving clutch member; (4) the stationary brake; (5) means for impelling the driven clutch member into engagement with the driving member; (6) connecting mechanism between the main shaft and the driven clutch member for moving the latter away from the driving clutch member and into engagement with the brake.

The main defense to this suit is anticipation. The defendant has introduced in evidence the clutch mechanism of the prior Stiles-Thomson lacing stud setting machine as a full and complete anticipation of the

patent in suit. A comparison of this clutch with the Davey & Ladd clutch shows the substantial identity of the two structures. On this point, Mr. Browne, complainant's expert, says:

"On comparing the Stiles-Thomson machine with claims 2 and 6 of the Davey & Ladd patent in suit, I find in said machine all the features recited in each of these claims."

While the identity of the mechanism of the two clutches, except in details of construction, is apparent, the complainant contends: First, that the Stiles-Thomson machine was only an abandoned experiment; second, that there is no evidence that the clutch part of this machine was ever operated or ever tested as to its capacity for stopping the machine; and, third, that the subsequent Stiles patent is evidence of an intention on the part of Stiles to abandon the form of clutch embodied in the Stiles-Thomson machine.

The history and use of the Stiles-Thomson machine, as disclosed by the evidence, may be stated as follows:

The Stiles-Thomson machine was designed for setting bifurcated or two-pronged lacing studs in leather shoes. It was constructed from drawings, which are in evidence, by George A. Stiles, between September and November, 1893, in the factory of the Judson L. Thomson Company. The Thomson Company was engaged in the manufacture of rivets, clasps, and other hardware supplies. In order to meet competitors, it was desirous of manufacturing and putting upon the market a bifurcated lacing stud. It was the intention of the Thomson Company that the machine should be used by its customers. It was found, however, that a lacing stud with two prongs was not as good as a tubular lacing stud, because the prongs would not hold firmly enough in the leather to withstand the pull and strain of the lacing, and it was for this reason that only one machine was built, and that this use of this machine was discontinued.

"We found," says Mr. Bartel, treasurer of the Thomson Company, "that two prongs on the stud would not hold as well as a stud with a tubular shank. A bifurcated stud simply held the stud on two sides, where a stud with a tubular shank would split in six equal parts, holding all around."

Again, Mr. Bartel testifies:

"Q. Can you state any reason why the company built only one such machine? If so, please do so. A. I can. The reason only one machine was built was because the goods we intended to use the machine for were defecrive, and after experimenting for some time we abandoned putting the goods upon the market."

And to the same effect is the testimony of Mr. Thomson, president of the company:

"Q. Can you state why the said company built only one of these lacing stud setting machines? A. Because the two prongs would not hold firmly enough in the leather of the upper of the shoe so but what it would pull out under the strain of lacings, as it had only two sides or prongs, instead of a tubular form that had always been in general use, and it was thought best to abandon that kind of a lacing stud."

The machine was operated in the factory of the Thomson Company for a short time during the month of December, 1893. It was then laid