L. C. Barton, for plaintiff in error.

John N. Dunn and A. S. Moorhead, for defendant in error.

Before DALLAS and GRAY, Circuit Judges, and LANNING, District Judge.

LANNING, District Judge. The record submitted to us in this cause shows that the defendant filed a general demurrer to the plaintiff's statement, or declaration. After argument of the demurrer, as appears by the opinion brought up with the record, the court concluded that the demurrer should be sustained, and added that "the plaintiff will have leave to discontinue on payment of costs." A writ of error operates only on a record in which a final judgment has been entered, and the only final judgment that could have been entered against the plaintiff on this demurrer was a judgment nil capiat, or its equivalent. 2 Archbold's Practice (12th Ed.) 934; Tidd's Practical Forms (8th Ed.) 250; United States v. Leverich (D. C.) 9 Fed. 481; Gould v. Evansville, etc., R. R. Co., 91 U. S. 526, 527, 23 L. Ed. 416; Cole v. Wooden, 18 N. J. Law, 15, 20. It is a common practice, however, when a demurrer is sustained, to enter an interlocutory order in favor of the demurrant, and to allow the defeated party an opportunity to amend or to plead over. Alley v. Nott, 111 U. S., 472, 474, 4 Sup. Ct. 495, 28 L. Ed. 491. In this case, instead of allowing the plaintiff to amend his statement, or declaration, the court stated that he might discontinue. Whether he entered an order of discontinuance does not appear. Neither does it appear whether the defendant has entered any judgment against the plaintiff.

The result is that we are compelled to dismiss the writ of error. But as the defendant has argued only the points presented by the assignment of errors, and has not moved to dismiss the writ, no costs will be allowed.

(149 Fed. 407.)

In re DIAMOND.

(Circuit Court of Appeals, Second Circuit. December 4, 1906.)

No. 44.

1. BANKRUPTCY-Court of BANKRUPTCY-POWER TO AMEND PRIOR Orders. A court of bankruptcy has power to amend an order of discharge at any time before the proceedings in the case have been closed provided such amendment will not affect vested rights.

2. SAME-DISCHARGE-PARTNERSHIP DEBTS.

Partnership creditors may prove their claims against the estate of a bankrupt partner, although entitled to share only in the surplus of his estate after his individual creditors have been paid, and where their debts have been scheduled, and they have had due notice of the proceedings, the bankrupt is entitled to a discharge from such debts as well as his individual debts.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 6, Bankruptcy, § 778.J

Petition to Review Order of the District Court of the United States for the Southern District of New York.

This cause comes here upon petition to review an order made by the District Court, Southern District of New York, amending the order of adJudication and petition and order for discharge, so as to discharge the bankrupt from his debts as member of a partnership, as well as from his individual debts. The original schedule enumerated all the firm creditors, who had due notice of all proceedings.

Sol. J. Frendenheim, for petitioner.
E. J. Myers, for respondent.

Before LACOMBE, TOWNSEND, and COXE, Circuit Judges.

PER CURIAM. The amendments were such as the District Court had power to make, and the case seems a proper one for the granting of the relief prayed for. See In re Kaufman (D. C.) 136 Fed. 262, in the conclusion and reasoning of which we fully concur. The petitioning creditor contends that the case cited was erroneously decided because it held that firm creditors might present their claims against the individual bankrupt, whereas this court in Re Janes, 133 Fed. 912, 67 C. C. A. 216 held that "such proof could not be made." This is a misreading of our decision in the Janes Case. We did not hold that such claims might not be made-indeed section 5f, Bankr. Act July 1, 1898, c. 541, 30 Stat. 547 [U. S. Comp. St. 1901, p. 3424], evidently contemplates that they may be made-but only that when creditors of a partnership and creditors of an individual member thereof had proved their claims, they should not all share alike in the individual estate, that the individual creditors should first be paid from the individual estate, and that it was the surplus only, if any there were after such payment, which could be marshaled for distribution to the firm creditors.

The order is affirmed.

(149 Fed. 408.)

WELLS & RICHARDSON CO. v. ABRAHAM et al.
(Circuit Court of Appeals, Second Circuit. November 19, 1906.)

No. 173.

INJUNCTION-GROUNDS-INDUCING BREACH OF CONTRACTS.

An order granting a preliminary injunction restraining defendants from inducing complainant's customers to violate their contracts by selling a proprietary medicine manufactured by complainant to defendants, contrary to the terms of their said contracts, considered, and affirmed.

Wallace, Circuit Judge, dissenting.

Appeal from the Circuit Court of the United States for the Eastern District of New York.

For opinion below, see 146 Fed. 190.

E. E. Wise, for appellants.

F. S. Reed, for appellee.

Before WALLACE, TOWNSEND, and COXE, Circuit Judges

PER CURIAM. The assignments of error do not require us to decide whether the terms of the injunction are broader than the case warrants. The fifteenth assignment is the only one directed to the point, and does not specify any particulars in which the terms are too broad. For reasons stated on the argument, we are of the opinion that we are not authorized to pass upon the question of jurisdiction pre

sented.

Upon the principal question argued we are not convinced of the unsoundness of the conclusions of Judge Thomas as expressed in his opinion in the court below, and see no reason for departing from our usual custom not to formulate an extended opinion on appeals from orders for preliminary injunctions where we affirm the court below, unless we disapprove the reasoning of its opinion.

The order is affirmed.

WALLACE, Circuit Judge (dissenting). I do not agree with the majority of the court that we are not authorized to pass upon the question of the jurisdiction of the court below. In Boston & Maine Railroad Co. v. Gokey (lately decided by this court) 149 Fed. 42,1 I have given the reasons why I think the court should no longer adhere to its decisions in United States v. Lee Yen Tai, 113 Fed. 465, 51 C. C. A. 299, and Fisheries Co. v. Lennen, 130 Fed. 533, 65 C. C. A. 79. I think, however, that the bill shows a case in which the requisite jurisdictional amount is involved. One of the rights sought to be protected by the complainant is its system of contracts, which is alleged to be of the value of more than $2,000, and the bill alleges that the acts of the defendant which are complained of are destructive thereof.

(149 Fed. 409.)

BULLOCK ELECTRIC MFG. CO. v. GENERAL ELECTRIC CO.

(Circuit Court of Appeals, Sixth Circuit. December 4, 1906.)

No. 1,550.

1. PATENTS-INVENTION-ARMATURE CORES.

The Reist patent, No. 508,637, for an improvement in armature cores designed to secure ample ventilation by the use of metal separators between the sections of lamine of which the core is built up, discloses merely a carrying forward of the idea of prior devices by the use of the same means changed only in form or degree which did not involve invention; it is also void for insufficiency of description of the separators in respect to their thickness, form, and composition to differentiate them from those of the prior art, being described in the specification merely as "thin" and of "metal."

2. SAME.

When the novelty of an invention consists in the dimensions or the material of the new thing devised, the patentee must specify the particular dimensions or the particular material his invention contemplates.

[Ed. Note. For cases in point, see Cent. Dig. vol. 38, Patents, §§ 1331352.]

Appeal from the Circuit Court of the United States for the Western Division of the Southern District of Ohio.

For opinion below, see 146 Fed. 549.

1 79 C. C. A. 64.

Thomas F. Sheridan and C. V. Edwards, for appellant.
W. K. Richardson, for appellee.

Before LURTON, SEVERENS, and RICHARDS, Circuit Judges.

SEVERENS, Circuit Judge. This is an appeal from an interlocutory decree of the Circuit Court sustaining certain claims of a patent, awarding a perpetual injunction, and ordering a reference to a master for the ascertainment of profits and damages. The patent which is the basis of the controversy is No. 508,637, issued to H. G. Reist, as assignor to the complainant, November 14, 1893, for an "improvement in the construction of armature cores" in dynamo electric machines. The bill charged the defendant, the Bullock Electric Manufacturing Company, with infringement. The answer denied that Reist was the first inventor of the devices for which the patent was granted, averred the anticipation thereof by numerous former domestic and foreign patents and earlier publications disclosing the supposed invention of Reist, and also denied infringement. In his specification the patentee states that his object was to improve the construction of armature cores, so as to obtain ample ventilation for dissipating the heat generated therein without detriment to the inductive qualities of the core.

It was well known that in the operation of such machines, heat was generated in the core of the armature by eddies of the magnetic flux in parts remote from the conductor whereby a waste of power was incurred; and besides, the obstruction thus encountered incited heat which might become injurious to the armature. Other factors are suggested which combined to create heat in the core, but that mentioned has been recognized as the principal one. Naturally this difficulty was most serious in large armatures consisting of massive collections of iron. The core of the patent in suit is, says the patentee, to be built up in the usual manner of annular iron laminæ in layers, and is supported by a spider having arms radiating from the shaft, but instead of making the core solid from end to end, he builds it up in sections or bundles of laminæ, and between each two sections he introduces skeleton separators which consist of "ribbed castings, riveted or otherwise suitably fastened to the side of one of the laminæ, and each adapted to bear against the outside lamina of the next section." In another place, he states that, instead of the ribbed castings, he proposes in some cases to make the separators of sheet metal, having one portion turned up at right angles to the other, which latter is "riveted or otherwise secured to" the outside lamina of a section, while the edge of the turned up portion bears against the outside lamina of the next section as in the first instance. These separators, in one form, consist of thin, flat plates secured to the lamina by rivets, and are provided with thin ribs extending outwardly to the outside lamina of the adjacent section, the ribs being radial to the centre of the armature. In another form the ribs are riveted directly on the lamina, and of themselves constitute the separators. In another form several equidistant ribs are assembled on a skeleton form of separator, which are specially adapted to the toothed, or Pacinotti, style of armature; the ribs in such

case bearing against the opposite teeth of the separated sections. The material of which the separators shall be composed is "brass or other metal, cast in the shape desired." For a more complete understanding of the structure it seems desirable to exhibit the drawings (except Fig. 6, which is unnecesary) attached to the specifications, as follows:

Fig. 1 shows the separators in cross-section of the armature. Cis no part of the separator; B is one of the lamina; A is the flat portion. of the separator; and a is one of the ribs set up upon it. Fig. 2 is a face view showing the separated sections of the armature and the separators in place. These two figures illustrate the separators when used in the form of armature wherein the periphery is entire, and on the surface of which the conducting wire is wound. The other figures are of toothed, or Pacinotti, style of armature wherein the core is in regular spaces recessed at the periphery, and so, of course, the rings or lamine of which it is composed. The wire is wound in the spaces between the teeth. In all the figures, b shows the holes in which the rivets are to be driven to attach the separators to the lamina. It will be observed that in Figs. 4, 5, and 7, the separators consist only of flat pieces riveted to the laminæ. And it will be noticed also that in Figs.