It is contended, in the second place, that the machine in question infringes claim 2 of patent No. 679,553, which reads as follows: "In a sewing-machine, the combination of suitable stitch-forming mechanism, with a stationary presser-foot, a yieldingly-mounted feed-frame, a ridgeforming rib adjustably mounted in said feed-frame and adapted to engage the work beneath the presser-foot, and a feed device yieldingly mounted upon said feed-frame and independent of the ridge-forming rib, substantially as set forth." It is obvious that the machine embraces all the elements of this claim provided it has the element "a ridge-forming rib adjustably mounted in said feed-frame." It is contended by the defendants that the ridge-forming rib found in the machine in question is not adjustably mounted. It seems to me obvious, however, that it is adjustably mounted. Infringement of this claim is clear, and should be restrained. It is claimed in the third place that the machine infringes claim 3 of patent No. 705,326, which reads as follows: "In a blind-stitch sewing-machine, the combination of a suitable stitchforming mechanism, and a stationary presser-foot, with a ridge-forming rib constructed and arranged to engage the foot beneath the presser-foot, and an upper feed device constructed and arranged to engage the upper exposed face of the work adjacent to said ridge-forming rib, substantially as set forth." Reading the claim upon the machine in question, it is clear that it possesses every element, including the stationary presser-foot. fringement is obvious, and should be restrained. (2) Defendants' Exhibit Defendants' Machine. In The looper of this machine is in the same form and has the same movement as the looper of the first machine. Therefore, while the same contention is made regarding it, it can only be said that infringement is not so obvious as to call for a preliminary injunction. It is obvious, also, that no infringement of patent No. 679,553 is shown in this machine. It does not possess the "ridge-forming rib adjustably mounted." But the complainant strenuously urges that this machine, like the other, infringes claim 3 of patent No. 705,326. To do so it must possess a stationary presser-foot or its equivalent. In fact, however, its presser-foot is yielding, and not stationary, and defendants' expert asserts that advantages attend this yielding action-that the cloth is stretched and smoothed over the rib, and that clearance is given for the feed action. On the other hand, the complainant's expert says that the yielding movement of the presser-foot is wholly without function. Here, as in respect of the movement of the looper, I am inclined to the opinion that the defendants are merely attempting to get away from the precise forms of the patents, while retaining their advantages. But I am not so certain that this will be the view of the court at final hearing that I feel warranted in closing the business of the defendants pending suit, provided they will file a bond. Possibly, had the complainant acted with more speed, I should feel differently. A preliminary injunction may issue, restraining the defendants from manufacturing or selling any machine in the form of "Complainant's Exhibit Defendants' Machine." A similar injunction may be issued with respect to the other machine, unless within two weeks from the filing of this opinion the defendants file a bond of sufficient amount and with sufficient surety to pay all damages or profits which the complainant may recover upon a final decree. In case the parties cannot agree as to the amount or sufficiency of the bond, the matter may be presented upon affidavits, and will be determined by the court. THE RELIABLE THE W. E. GLADWISH. (District Court, E. D. New York. February 15, 1909.) COLLISION (§ 95*)-STEAM VESSELS CROSSING-BOTH VESSELS IN Fault. A collision occurred in the North River, near the ends of the New Jersey piers, between the tug Reliable, going up with a tow, and a tow on the side of the tug Gladwish, which had just come out of a slip and had given a signal of two whistles, indicating a desire to cross ahead. Instead of going straight ahead, however, she turned up the river, and the Reliable, turning toward the shore at the same time to pass under her stern, ran into her tow. The Reliable had also given a signal of one whistle, but did not insist on her right to cross ahead, as she should have done. Held, that both tugs were in fault and equally liable for the injury to the tow. [Ed. Note.-For other cases, see Collision, Cent. Dig. §§ 200-202; Dec. Dig. § 95.*] In Admiralty. Suit for collision. Wray & Callaghan, for libelant. Carpenter, Park & Symmers, for The Reliable. CHATFIELD, District Judge. The present accident occurred upon. the North River just above the Communipaw ferries, and within a short distance of the pierheads. The tug Gladwish was coming out with a tow, and, under a flood tide, attempted to turn as nearly as possible up the river, around a pier called the "Packer Dock"; this turn being so made as to enable the tug Gladwish and the tow to barely clear a string of canal boats which were lying in three tiers, angling out from a pier to the north, known as "Game Cock Pier." The Gladwish, upon starting out, pursued a direction substantially across the river, until a point was reached where the turn to port could be made. She thus had all the boats coming up the river, along the western shore, on her starboard hand, and it was possible to see several hundred feet down the river at that point, inasmuch as there is no pier immediately to the south of the slip from which the Gladwish started. The Gladwish saw a tug with a tow, the Reliable, coming up the river some 500 or 600 feet away, past the series of Lehigh Val For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes ley piers, and heading either straight up the river along the pierheads, or working closer in as if to enter the slip known as the "Morris Canal Basin." The Gladwish gave a two-whistle signal to indicate that she wished to cross the bow of the tug coming up. It may be assumed that if the tug coming up the river, the Reliable, had gone into the Morris Canal Basin, or had stopped before reaching Game Cock pier, no accident would have occurred. The evidence would seem to show that the Reliable was out a sufficient distance when going by the Lehigh Valley piers to have passed up the river sufficiently far from the pierheads to have avoided the rule laid down. by the courts in The Breakwater, 155 U. S. 252, 15 Sup. Ct. 99, 39 L. Ed. 139, and the cases therein cited. Further, the Reliable's testimony is that she blew one whistle, which would have been the proper signal if she had intended to go up the river, to prevent the Gladwish from coming out. The captain of the Reliable also testifies that before the collision he put his helm to port and tried to sheer off to avoid the collision. But this was evidently not done until too late to have been of any service, and therefore neither relieves the Reliable of any responsibility, nor would be of any importance, except that it throws some light on the position of the boats at the time of the collision. The testimony of all the witnesses is that the blow was straight in through the side of the barge, which was lashed on the starboard side of the tug, and penetrated clear into the coal. It is reasonably certain that, if the Gladwish had succeeded in making the turn so as to be headed substantially up the river, the Reliable could not have struck such a blow on any course, unless she were headed almost at right angles for the Jersey shore. Such a blow could still less be delivered if the Reliable had turned to starboard to any appreciable extent under a port helm. On the other hand, the testimony of all the witnesses shows that the Gladwish was making a turn, and that the blow was struck after she had worked somewhat to port from a straight across the river course. It is also evident, from the position of the canal boats, angling out from the Game Cock pier, that the accident must have occurred below that pier, and not much further out in the river than the lowest tier of canal boats. Under these circumstances it is difficult to see how the Reliable struck the barge, if her story that she was proceeding straight up the river, some 400 feet from the piers, under a one-whistle signal, with a turn to starboard, just before the accident, is to be believed. It may be assumed that the Gladwish was a crossing vessel, and that her twowhistle signal was wrong under the circumstances, especially if, instead of crossing, she intended to turn around in the path of the Reliable and proceed up the river, a maneuver which would be likely to consume more time than to pass straight across. The Reliable had the right to assume that the Gladwish heard her one whistle, or that, if the Gladwish did not hear it, no attempt to cross the bow of the Reliable would be made, under a cross-whistle, or a failure to elicit response. The John King, 49 Fed. 469, 1 C. C. A. 319; The George S. Shultz and Others, 84 Fed. 508, 28 C. C. A. 476. But the position of the boats and the physical peculiarities of the situation show to the satisfaction of the court that the testimony of the witnesses, to the effect that the Reliable headed in, is correct. In other words, it seems to the court that the Reliable assumed that the Gladwish was proceeding straight out into the river, and, even if the Reliable gave a one-whistle signal, that after hearing the two by the Gladwish, and estimating the distance between them, the Reliable attempted to work in closer to the piers and to pass astern of the Gladwish, which, under the circumstances, she had no right to do. She should have held her course and insisted on her signal, or have proceeded at such a rate of speed that the Gladwish could have gotten out of the way. The string of canal boats was in plain sight, and the Reliable should have taken them into consideration in proceeding up the river. But the Gladwish was clearly at fault in giving a two-whistle signal, under the circumstances. She should have assumed that she would be treated as a boat coming out from a slip, and (under rule 19) thus obligated to take care of all boats approaching on the starboard; or, if she intended to have the Reliable pass up the river outside, a one-whistle signal would certainly have indicated the portion of the river which was needed by the Gladwish better than the two-whistle signal. It is evident from the testimony of the pilot of the Gladwish that he gave the two-whistle signal because he assumed that the Reliable was going into the slip rather than up the river. Even a two-whistle signal might have been justified, if made a little later, after the Reliable had shown by her course that she would pass astern, and if the Gladwish had passed on across. But in the face of a failure to answer the two-whistle signal, which had already been given by her, and inasmuch as the Gladwish did not proceed out in the river far enough to give the Reliable room to pass astern if she had wanted to, it is difficult to see how the Gladwish can be relieved from all responsibility. When the Gladwish had once started upon her crossing course, the effect of the flood tide would increase the difficulty of avoiding the canal boats directly to the north, unless the course were pursued sufficiently to clear; and under such circumstances, even if in fault, the Gladwish might have avoided the accident by going straight out into the river; but by turning up the river she made it impossible for the accident to be prevented, unless the Reliable had consistently pursued her original course and paid no attention to the signals of the Gladwish. While the Gladwish might have been at the outset entitled to assume that the Reliable would do this, nevertheless, after the mistakes on the Gladwish's part, and after the failure to receive the signal, it seems to be reasonably certain that the Gladwish could not ignore the difficulties caused by her own acts, and then insist that the Reliable should previously have insisted on her own rights. The libelant is the owner of the coal barge which was run into and sunk, and both the Gladwish and Reliable seem to be responsible for the injury, and should both, therefore, be held liable equally for the damage. In re RESNEK et al. (District Court, E. D. Pennsylvania. February 9, 1909.) No. 3,069. BANKRUPTCY (§ 287*)-LIENS ACQUIRED BY LEGAL PROCEEDINGS-EFFECT OF LEVY AND SALE BEFORE BANKRUPTCY-REMEDY OF TRUSTEE. Where an execution was issued against an insolvent debtor within four months prior to his bankruptcy, and a levy and sale made, and the proceeds paid over to the judgment creditor before the filing of the petition, the case does not fall within Bankr. Act July 1, 1898, c. 541. § 67f, 30 Stat. 565 (U. S. Comp. St. 1901, p. 3450), avoiding liens obtained through legal proceedings, and the referee is without power to summarily direct a repayment of the money; the remedy of the trustee, if any, being by a plenary action to recover the amount as a preference under section 60b. [Ed. Note. For other cases, see Bankruptcy, Cent. Dig. § 444; Dec. Dig. § 287.*] In Bankruptcy. On certificate of referee. Calvin F. Smith, for Albert H. Resnek. HOLLAND, District Judge. In this case the judgment had been entered in the court of common pleas of Northampton county, the levy and sale made, and the money paid over to Albert H. Resnek on the 9th day of December, 1907, within four months of the filing of the petition in bankruptcy against the alleged bankrupts, which took place on the 16th day of March, 1908, and the adjudication was entered April 16, 1908. Upon the presentation of a petition, the referee summarily directed Albert H. Resnek to pay over to the trustee in bankruptcy the net proceeds received from the sheriff on the execution, to which order Resnek excepted, and the question is certified to this court for determination as to whether the referee, under the circumstances, had jurisdiction to make this summary order. Where, within four months before the filing of a petition in bankruptcy against an insolvent debtor, an execution has been issued and levy and sale made and the proceeds paid over to the judgment creditor before the filing of the petition, the case does not fall within the provisions of section 67f of the bankrupt act (Act July 1, 1898, c. 541, 30 Stat. 565 [U. S. Comp. St. 1901, p. 3450]), and the lien created by the judgment and levy is not rendered void by the adjudication. The remedy, if any, the trustee has against the creditor, is under the provisions of sections 60a and 60b of the bankrupt act in a plenary action, where it will be necessary to allege and show that the creditor had reasonable cause to believe that the bankrupt, by suffering judgment to be taken against him, intended to give a preference. In re Blair (D. C.) 102 Fed. 987; In re Bailey (D. C.) 144 Fed. 214. And this is true, even though the proceeds of the execution are insufficient to satisfy the claim of the judgment creditor. In re Knickerbocker (D. C.) 121 Fed. 1004. It follows, therefore, that the order of the referee must be reversed. It is so ordered. *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes |