(274 F.)

pawl could so operate, the plates are already in contact with the book. The experts say they can see no way to remedy this, and no way is suggested.

No. 4: That the machine can never unlock the plates. This is really another form of the objection No. 7. It also depends in part upon the fact that the bent ends of the treadle N cannot operate to raise up the arms, d, d, high enough, because the bent ends strike on the sides of the frame.

No. 6: The slotted connection between band O is inoperative. This is said to be an unworkable device mechanically; it will jam if one tries to operate it, and it is fundamentally vicious. No one suggests that it could be changed. Obviously there must be a portion of the rise in the book, represented by the slot, b, during which the plates so remain in contact with the sheets that a solid piece at that point would not serve. How to remedy this does not appear.

No. 7: The ends, D, D, of the arms, d, d, must enter the paste tank to give the slides d', their necessary movement. This is obviously true from the diagram. It is answered that the pot might be divided; but, if so, the paste plates could not close on the book. No other suggestion is made as to how this could be remedied.

[4] It must therefore be conceded, and indeed it is not denied, except as I shall show later, that the machine as disclosed was an inoperable mechanism. However, the defendant must go further, and show that it could not be made operable by a skilled mechanic. This it does by the testimony of its two experts, who say that they do not see how it could be made to operate. Now, it was made to operate when the principle was put into the second machine patented by the inventor here, 677,040. This machine was without question an entirely workable inachine, and I do not attach any importance to the fact that in the operation of it, as seen by the defendant's witnesses, the leaves were not properly covered with paste. The testimony of the two mechanics who operated it for a period of over a year satisfies me beyond doubt that it was an entirely operable device, and had it been disclosed in the first. patent I should not have hesitated to overrule the defence. When, however, one comes to examine the second machine, one sees that, although the principle of the first, as set forth in claim 6, is undoubtedly there, the disclosure is very radically different.

As these two machines are the only ones, besides the defendant's, which have ever appeared in which the claim has been embodied, and as the evidence nowhere suggests that there is another way in which it could be embodied and the unworkable features of the first eliminated, I think the question must resolve itself into this: Whether a skilled mechanic could have devised the second machine from what he saw of the first. A judge is entirely unadapted to decide such a question as an original question, and must rely upon the testimony of skilled artisans or of experts in mechanics.

Here the only evidence is that a skilled artisan could not have done. so. I cannot accept Gunz's testimony in rebuttal as raising an issue in this respect. The codefendant's witnesses at great length pointed out the difficulties, and showed that the machine as disclosed was thorough

ly unworkable. It was not enough for Gunz to say merely that he disagreed with them in their subsequent conclusion that it could not be made workable. I agree that the burden of proof on the issue is on the defendant; but the defendant had made out a case, and the complainant had the burden of going forward with the proof to show how a skilled artisan could change it over. I must conclude that he would not venture to show in detail how the difficulties could be remedied.

[5] Moreover, although it might by another be argued that such changes as were necessary to convert the first machine into the second were obvious to a skilled mechanic, certainly the complainant here cannot claim any such thing. Upon taking out the second patent, the inventor necessarily took the position that the second disclosure showed invention over the first, and it is precisely the negative of that position, which he must now assume to hold that the disclosure of the first was an adequate revelation to anyone wishing to construct the second. He cannot, therefore, rely upon the second machine as an obvious alternative of the first.

[6] Some question is made that the first machine was in fact operable and did the work of "casing." This testimony was, of course, of the greatest consequence to the case; but, in view of the very clear and unanswered testimony of the defendant's experts, I should be disposed to scrutinize it carefully. It seems pretty clear that the machine could not have worked; what, then, is the evidence that it did? I think this testimony is best approached from that of the two workmen in Little's establishment, and I cannot have the least doubt that the machine they used was the second.

Absolutely conclusive appears to me to be their testimony, when they saw the diagrams of the second machine. I know that they were. not skilled in the use of diagrams, but that makes their recognition of such details as the intermittent rotating device for the paste plates especially significant. The description, "a sort of a piece of iron sticking out from both sides which went into a socket like," is the sort of description that a layman would give of the second machine, but never of the first. Again Rees and Recame's recognition of the arms C is almost inconvertible evidence that the second machine is what they used, for the arms are quite unlike the plate-tipping arms of the first machine. Although Recame says that the first of the two machines used at Little's was not in use while he was there, yet he recognizes the second patent as describing that machine.

Now, George H. McClellan, who was the foreman at Little's says that five machines were sold, and that only one went to Little's. This one, "as nearly as I can recollect," was built in 1899, was installed in "the early part of 1900"; but later, when recalled, he said it was put in "about the latter end of 1900, or the first part of 1901," but he does not say how it worked, nor under which patent it was made. Certainly, so far as this evidence goes, it shows that, whether or not two machines were sent there, those that were sent were made under the second patent. Jackson McClellan to a certain extent corroborates their testimo

(274 F.)

ǹy for he says that there were two machines sent to Little's, which differed only in the "running gear, cams," etc.

I am satisfied from all this testimony that both machines were made under the second patent, which was applied for in June, 1900, and that the only evidence of any use of a machine under the first patent is that of Jackson McClellan himself as to the use made of the so-called "model" machine. It becomes necessary, therefore, to consider his testimony. He says that he actually cased in books with the model machine which he made and from which the drawings of the first patent were taken. From that model machine Hindle made the first of the five machines that were ever made at all, and it differed from the model only in running gear. Now, as I have shown, the first of Hindle's five machines was that sent to Little early in 1901 or late in 1900. It is therefore a fair conclusion that the model Jackson McClellan speaks of was similar to the Little machine which Recame identifies as made under the second patent.

Moreover, since Jackson McClellan says that the two Little machines were alike, except in "running gear, cams," etc., Ree's testimony corroborates Recame's that the model machine was under the second patent, in spite of Jackson McClellan's testimony to the contrary. In addition, it is quite clear that Jackson McClellan was confused in his recollection of the two patents, because he says that in each the paste plates get a half turn, which is concededly not the case. His recollection is also at fault in thinking that either of the patents shows any beveling of the paste plates at the edges.

Considering this confused and uncertain testimony of Jackson McClellan, which is certainly inconsistent with itself and with the testimony of the other witnesses, and considering the failure to call Hindle or to explain his absence, I cannot think that the complainant has met the proof of the defendant, and I conclude as a fact that the disclosure was not of an operable device.

[7] There is an insinuation that the Smyth Company had taken the idea, and by its greater ingenuity and resources made it profitable, stealing the inventor's germinative conception. That is, however, not the fact, I believe. The interview, which came out in rebuttal, between Fuller and McKibbin, was probably in the summer of 1900. Now, the Smyth Company began the construction of its first machine "about the latter part of the year 1899," and certainly before it knew of the patent in suit. That machine embodied as much of the idea of the patent as any other. The complainant's invention, even in its second form, never proved to be of any value as he disclosed it. That is perhaps of no consequence, if others took his idea and by improvements got the harvest which he had sown; but there is no evidence that they did do so. Each apparently independently saw that to raise a book up and down while paste was applied might be a good way to supply the place of hand labor, but that idea was of no value till it was accompanied by a practicable disclosure of how to do what was conceived.

It is quite too much to claim for a new invention that it is a pioneer merely because a new theory is adopted. Surely every one is familiar

with many ardent theorists, whose ideas are original and might be useful in the abstract, but whose actual contribution to the arts is nothing whatever. That man wins who first can present the idea in some form that can work.

Bill dismissed, with costs.

In re OLLINGER & PERRY.

(District Court, S. D. Alabama. August 12, 1921.)

Bankruptcy44-Petition against partnership by one partner must ailege insolvency and act of bankruptcy.

Bankr. Act, § 5a (Comp. St. § 9589), providing that a partnership may be adjudged a bankrupt, treats a partnership as an entity, and in view of General Order in Bankruptcy No. 8, providing that a member of a partnership who refuses to join in a petition to have the partnership declared bankrupt "shall be entitled to resist the prayer of the petition in the same manner as if the petition had been filed by a creditor of the partnership," that he shall be served with notice, and "shall have the right to appear * * and to make proof if he can that the partnership is not insolvent or has not committed an act of bankruptcy and to make all defenses which any debtor proceeded against is entitled to take by the provisions of the act," a petition filed against a partnership by one partner alone must conform to the requirements of an involuntary petition and must allege insolvency and an act of bankruptcy by the partnership.

In Bankruptcy. In the matter of Ollinger & Perry, a partnership, alleged bankrupt. On demurrer to petition. Demurrer sustained. R. H. & R. M. Smith, of Mobile, Ala., for Perry.

Stevens, McCorvey, McLeod & Goode, of Mobile, Ala., for Ollinger.

ERVIN, District Judge. This was a petition in bankruptcy by Perry against Ollinger & Perry as a partnership and Charles G. Ollinger as an individual, seeking to have himself and the firm of Ollinger & Perry and Charles G. Ollinger declared bankrupt.

The petition filed by Perry is on form No. 2 with the necessary changes so as to show that the said Charles G. Ollinger was not consenting to the adjudication of himself or the partnership as bankrupts.

It did not contain any statement that the partnership was insolvent, nor does it allege any act of bankruptcy as having been committed. by it or by Ollinger.

Ollinger demurs on the ground of failure to allege an act of bankruptcy as having been committed by the partnership.

The demurrer raises a question on which the decided cases and text-books all seem to have taken one side. Loveland on Bankruptcy (4th Ed.) 524; Collier (12th Ed.) 177; Brandenburg (4th Ed.) § 193; Remington (2d Ed.) § 73.

The text-books state the names of the cases holding that no act of bankruptcy by the firm need be alleged.

I am, however, so firmly convinced that these decisions have grown out of a misconception by the courts, which misconception was fol

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

(274 F.)

lowed by the text-books, that I feel it incumbent upon me to explain my views upon the question.

Section 5 of the Bankruptcy Act reads as follows:

"(a) A partnership, during the continuation of the partnership business, or after its dissolution and before the final settlement thereof, may be adjudged bankrupt." Comp. St. § 9589.

After much discussion among the authorities as to the separate entity of the partnership, as such, they are now practically unanimous in holding that the adjudication of the firm as an entity is provided for by this act.

The Supreme Court under authority of Congress prepared general orders and forms in bankruptcy. Form of petition No. 1 is a debtor's petition for voluntary bankruptcy.

Form No. 2 is a partnership voluntary petition, and an examination of this form will show that it was contemplated by the court and expressly prepared by it so that it should be signed by all of the partners of the firm. Following the statement contained in the petition for voluntary adjudication of an individual, No. 2 states that said partners owe debts which they are unable to pay in full; that said partners are willing to surrender all their property for the benefit of their creditors except such as are exempt by law, and desire to obtain the benefit of the acts of Congress relating to bankruptcy.

The prayer is that said firm may be declared bankrupt.

It then provides for certain schedules of the partnership creditors and property and for the individual creditors and property.

Form No. 3 is a creditor's petition seeking to have the debtor declared an involuntary bankrupt, and there is written into the statement. of facts in this form the following;

"That your petitioner further represent that said is insolvent, and that within four months next preceding the date of this petition, the said committed an act of bankruptcy, in that he did heretofore, to wit, on the

day of

These are all the forms prepared by the Supreme Court of peti-. tions to have any one declared bankrupt whether voluntary or involuntary, but it was undoubtedly intended by the court that the necessary allegations written into these forms should be copied into the petitions when prepared, according to the facts necessary to be stated, whether for involuntary or voluntary adjudication, so that form 3the creditor's petition-should be used against any one who is sought to be declared an involuntary bankrupt, while forms 1 and 2 should be used in voluntary cases.

The Supreme Court prepared at the same time general orders, and No. 8 of these orders reads as follows:

"Any member of a partnership who refuses to join in a petition to have the partnership declared bankrupt, shall be entitled to resist the prayer of the petition in the same manner as if the petition had been filed by a creditor of the partnership, and notice of the filing of the petition shall be given to him in the same manner as provided by law and by these rules in the case of a debtor petitioned against; and he shall have the right to appear at the time fixed by the court for the hearing of the petition, and to make proof, if he