came embarrassed. Such securities are held in, some of the States amounting to millions upon millions. The Bankrupt Act had a very different purpose. It was to secure equality of distribution of that which insolvents have when proceedings in bankruptcy are commenced, and of that which they have collusively with some of their creditors attempted to withdraw from ratable distribution, with intent to prefer some creditors over others. There is much in the language of the court in Wilson v. Bk., supra, that confirms the opinion we express. Especially the remarks upon pages 486 and 487. If, then, the entry of the judgment, the execution and the levy, on the 30th of April, 1869, were not a forbidden preference, as we have endeavored to show they were not, the transaction on the next day, May 1, was unimpeachable. It was only an exchange of values. The debtors transferred to the execution creditors bill receivable and other securities, together with $1,900 in cash, the whole value being equal to the amount of the judgment, and received back the goods upon which the execùtion had been levied. Those goods were of greater value than the securities transfered and the money paid. It is not claimed that the de378*] fendants *obtained more than they gave in return. The exchange, instead of impairing the debtors' estate actually benefited it. It saved the stock levied upon from the expense and sacrifice of a forced sale. It was, therefore, such an exchange as the debtors might lawfully make and as the creditors might lawfully accept. This is determined by Cook v. Tullis, supra, and Tiffany v. Sav. Inst. supra. It follows that the decree of the circuit court, affirming the decree of the district court, must be reversed. All that the complainant in the district court is entitled to recover against the defendant, is the sum of $2,286.27, being the sum mentioned in section 11 of the stipulation between the parties, dated September 1, 1871, if that sum has not been already paid. The decree of the Circuit Court is wholly reversed, and the cause is remanded, with instructions to proceed in accordance with this opinion. Mr. Justice Hunt dissenting in Nos. 102, 103: The importance of the principle involved in 382*] the decision of these cases justifies a statement of the position of those who do not concur in the decision. Stated in brief words the decision is this: a merchant in solvent circumstances may give his creditor a warrant to confess a judgment, which may be held by him, concealed from the knowledge of every other person; the debtor may continue his business for an indefinite time, buying other goods of the same creditor, paying for the new purchases, but paying nothing on the judgment debt, and when he becomes insolvent, judgment may be perfected on the warrant of attorney so given, execution issued, and the proceeds of the property sold paid to the judgment creditor in preference to and in exclusion, if need be, of all other creditors. In the case of Iselin the warrant of attorney was held by him unacted upon for two months, and in the case of Taylor [post, 576] for five months. The precise time is not important. If the power to enter the judgment may re574 main unexercised for five months, and be enforced after insolvency has occurred, there is no limit to the time, except such as may arise from the Statute of Limitations. In the case of Iselin the confession was given to secure a debt then created. In the case of Taylor it was given to secure an antecedent debt. The decision, therefore, embraces as well the case of a debt past due at the time of giving the confession as of a debt then created. 1. This decision impresses me as being in violation of the whole spirit and intent of the Bankrupt Law, and as calculated to destroy its beneficial effect. The first principle of this law is to secure an equal distribution of the property of a bankrupt among all his creditors. Its first intent was to destroy the system of preferences allowed in most of the States, by which in the act of bankruptcy, as it were "in articulo mortis," a debtor could give all his property to favored creditors. It was intended to prevent this vicious system and, in the language of the Act, "to secure the rights of all parties and the due distribution of assets among all the creditors, without any priority or preference whatever, except wages not exceeding $50." To this end the whole machinery of the Act is directed. To accomplish this end all [*383 attachments made within four months of the bankrupt proceedings are annulled, however vigilant the creditor, however honest his debt; all offsets in favor of debtors of the bankrupt purchased after bankruptcy, are disallowed; no discharge is to be granted to the bankrupt if within four months he has procured his property to be attached or seized on execution, or if in contemplation of bankruptcy he has made any conveyance, pledge or transfer, directly or indirectly, absolutely or conditionally, for the purpose of preferring one creditor over another. With the same view it is further provided that payments within six months. or, in certain cases, within four months, with a view to giving a preference, or if he procures his property to be attached, or makes pledges, assignments or transfers, where the person receiving them has reason to believe there is insolvency, and that it is in fraud of this Act, all these acts are void, and the creditor may be compelled to refund to the assignee the money received by him; and if the transaction is not in the usual course of business, the fact shall be prima facie evidence of fraud. How can the spirit of this Act be carried out if the debtor is allowed to give a secret preference to one creditor, by which his debt is fre from the hazards of trade, and is secure whatever may happen? The favored creditor lends his debtor other moneys from day to day. He sells him other goods as his occasions require. Other creditors buy, sell, get credit; all is fair to the view; all stand upon an appearent equality. Each one supposes that he understands that no preference can by law be given, but that by law all will share alike in the event of a calamity. A calamity does occur, and through a concealed instrument, not possible to be known to others, by which the favored creditor has had the power to precipitate the crisis whenever his interests required it, and to delay it until that time came. The judgment by confession for a debt long since mature is now entered of record, execution is issued, and his debt is paid in preference of or to the exclusion of all others. A Bankrupt Act which permits such & result cannot be said to be 384*] *based upon the principle of an equal distribution of all the assets among all the creditors. If the creditor had desired to bring his debt within the protection of the law, and to make it like a mortgage, a lien upon the real estate of the debtor, he should have entered it of record in the clerk's office. Until so entered, while kept in his safe or his pocket, it is not a mortgage, or judgment, or lien of any character. He simply has the means or the power of giving himself a lien upon land by filing his judgment, or upon goods by issuing execution. Of itself, unexecuted, the confession has no force or vir tue. But, second, I am of the opinion that the proceeding in question is forbidden by the terms of the 35th section of the Bankrupt Law. It is there enacted that if any person, being insolvent, within four months before the bankruptcy proceedings, with a view to give a preference to any creditor, "procures any part of his property to be seized on execution," the same shall be void and the assignee may recover the value of the same. incumbrance. It may be compared to an agreement to give a mortgage under certain circumstances. Such an agreement might be made of value, but it is nothing of itself. Bk. v. Hunt, 11 Wall., 391, 20 L. ed., 190. Dibblee gave a power or authority simply, by which the creditor was authorized to give to himself a judgment and execution. This is conceded in general terms. It is sought to annul its effect, however, by reference to the fact that when the confession was executed, or the authority given, Dibblee was solvent and might lawfully confess a judgment. If this be conceded, it does not aid the argument. If he had entered up the judgment on the 25th of February, by virtue of an authority then given, it might have been valid, but he did not exercise the authority until the 30th of April. At that time Dibblee was insolvent, to the knowledge of Iselin. The authority given on the 25th of February was a *continuing authority. [*386 It was not in its effect an act then and there done and ended, and of which the force was then and there exhausted. It was not an act then and there perfected, like a mortgage or deed. The paper given was nothing of itself, Every person is deemed to contemplate the but it gave to the creditor power and authority natural result of his acts, and is responsible for to create a judgment. This authority was not all the results that legitimately follow them. A exhausted on the 25th of February, when the padebtor who confesses a judgment cannot be per was executed. It continued every day to heard to say that he did not contemplate the be a subsisting power, and every moment of the issuing of an execution thereon. A judgment day. On the 30th of April, 1869, it was a power is given that execution may follow thereon. and authority then subsisting and in force. The An execution is the only mode by which the judgment entered in the clerk's office on that benefit of the judgment can be obtained. This day, was entered by force of a power of attorprinciple is so plain that we could hardly ex-ney in the exercise of authority given by Dibpect to find a decision supporting it. It so hap- blee, and that day existing in full force. The pens, however, that the precise proposition was cases of Bennett v. Davis, 3 Cow., 68, and Nichinvolved in the case of Bk. v. Jones, ante, 542, ols v. Chapman, 9 Wend., 452, show that if assignee, recently decided by this court. Dibblee had died at any time before the judgment had been actually entered up, the judg ment could not have been perfected. His death would work a revocation of the authority. From this we conclude, 1, that the paper was of itself no lien or security; 2, that it was merely a power of attorney, which, like every other power of attorney, is revoked by the death of the grantor. While the debtor lived, and in this case on the 30th of April, the authority to enter judgment on that day continued, and on that day the power and authority were carried into execution. On that day, however, the debtor was a bankrupt. Whoever, therefore, procures judgment to be entered against himself, upon which execution is issued and levied, procures his goods to be seized on execution within the provision of the statute. In the case just cited Mr. Justice Clifford uses the following language: "1. That everyone is presumed to intend 385*] that which is the necessary and unavoidable consequence of his acts, and that the evidence introduced that the debtor signed and delivered to the defendants the judgment note payable one day after date, giving to them the right to enter the same of record and to issue execution thereon without delay, for a debt which was not then due, affords a strong ground to presume that the debtor intended to give the creditor a preference, and that the creditor intended to obtain it, and that it is wholly immaterial whether the preference was voluntary or was given at the urgent solicitation of the creditor." On the 25th of February, 1869, Dibblee gave to Mr. Iselin what is termed in the State of New York a confession of judgment for $54,000. The paper contained an acknowledgment of indebtedness to that amount. It carried an authority to enter judgment for that sum in the Supreme Court of the State of New York. Until so entered it had no force or effect in any degree or in any form. It created no lien on lands until so entered. It could give no lien on goods until so entered and an execution issued in the ordinary form of law. It was not a mortgage or judgment. It created no lien or . These suggestions are equally applicable in the case of Taylor. No case has been cited which gives the authority of this court to the principle held by the majority of the court in the present case. The case of Buckingham v. McLean, 13 How., 150, not cited, is the only one I have been able to find giving apparent countenance to it. The language of Mr. Justice Curtis in that case is broad enough to cover it. The case there under consideration did not require or justify the examination of the question now before us. The question was, whether the fact of the debtor's insolvency should refer to *the time when [*387 the confession was given and was entered of record, or when the execution was issued, and it was held that the first named was the time to be inquired about. The execution was issued on the 22d of April. The confession was signed on the 7th of May, and entered of record on the next day and the twenty-four hours had made no change in the debtor's affairs. He was solvent on both of those days. On the 22d of April he was insolvent. The distinction, so important in the present case, between the condition of affairs when the judgment was authorized and the condition months later, when the judgment was entered of record, did not and could not arise. Except for the judgment of a majority of my brethren to the contrary, I should say that it was plain, 1, that the judgment was entered by virtue of an authority from the debtor when he was insolvent to the knowledge of the creditor; and, 2, that this was a procuring by the debtor of the seizure of his property on execution, which cannot be sustained under the Bankrupt Law. Great as is my deference to the opinions of my associates, I am not able in this case to yield my judgment. I am authorized to say that Mr. Justice Clifford and Mr. Justice Miller concur in this dissent. Also, that, the 4th day of August, 1868, August Sweeney was justly indebted to Isaac Taylor in an account then due, for merchandise previously purchased in the ordinary course of business, and on that day according to the custom of the said Isaac Taylor, and in the ordinary course of business closed the account by executing and delivering to said Taylor a note, with warrant of attorney, for $800, the balance of the account, embracing the amount of a small bill of goods, about $13, that day sold said Sweeney, payable four months after date, with interest. After this, Sweeney continued to purchase from Isaac Taylor merchandise as before, all of which has been paid for, but paid nothing on the note. Also, that it was the regular custom of said Taylor to close such accounts by taking notes with warrant of attorney; that the note aforesaid remained unpaid, and on the first day of January, 1869, was, by one McKnight, agent of said Taylor, delivered to Golden & Neale, his attorneys, at Armstrong County, Pennsylvania, for collection, he having demanded payment a day or two before, and was by them entered of record and judgment confessed by virtue of the D. T. WATSON, Assignee of August Sweeney, warrant of attorney, and on the same day a Plff., v. ISAAC TAYLOR. (See S. C., 21 Wall., 378-387.) Preference under Bankrupt Act-when ful-chen valid. writ of fieri facias issued thereon and delivered to the sheriff, which became a lien, under the state laws, upon the goods and chattels of the said August Sweeney, and upon the 4th January, 1869, an actual levy was made in purunlaw-suance of said writ upon the personal estate of said Sweeney, consisting of dry goods, groceries, etc., in his store at Freeport, being all he had, the store being closed and sold out on the execution (he having no real estate), and in accordance with said law, said goods and chattels were sold by the sheriff on the 13th day of January, 1869, and on the 18th of January, 1869, the sum of $860.52 paid over by the sheriff to Golden & Neale, and by them paid over to Isaac Taylor. Neither Isaac Taylor nor his counsel became the purchaser of any property thus sold by the sheriff. 1. Where a bankrupt gave his creditor a note for goods sold and a warrant to confess judgment thereon, more than five months before the petition was filed, upon which a judgment was entered two weeks prior to such filing, and an execution, levy and safe of the debtor's property immediately followed, no preference within the meaning of the Bankrupt Act was given. 2. The confession of judgment, execution, levy and sale aforesaid, did not constitute a transfer or other disposition of the property, with a view to give a preference. 3. From the debtor's default in payment of the debt, the warrant of attorney, the confession of judgment, execution and levy, as aforesaid, the execution creditor had no reasonable cause to believe that the debtor was insolvent, and that the proceed ings were in fraud of the Bankrupt Act, where the case shows affirmatively that no fraud or collusion was intended, either at the time when the note was given or when the judgment was entered. [No. 121.] 0 Submitted Dec. 22, 1874. Decided Feb. 1, 1875. Na certificate of division in opinion between the Judges of the Circuit Court of the United States for the Western District of Pennsylvania. This was an action in assumpsit, brought in the court below, to recover the value of personal property of August Sweeney, a bankrupt, alleged to have been transferred or disposed of for the benefit of Isaac Taylor, the defendant. in violation of the 35th section of the Bankrupt Act. The statement of the court below showed that Isaac Taylor was a wholesale dry goods merchant of Pittsburg, Pennsylvania; that August Sweeney was a retail merchant until January 13, 1869, residing and doing business in the Borough of Freeport, County of Armstrong. and State of Pennsylvania; that for some time prior to August 4, 1868, and until January 1, 1869, August Sweeney was a customer of the said Isaac Taylor, in the purchasing of mer chandise on credit, according to the usual course and custom of the business. Also, that, at the time of taking the note and confessing judgment thereon, there was no fraud or collusion intended by either Taylor or Sweeney, and said Taylor testified that he did not know or have any reasonable cause to believe that Sweeney was bankrupt or insolvent, or contemplated bankruptcy or insolvency, or any fraud on the Bankrupt Law; that the 15th of January, 1869, two days after the sale a petition in bankruptcy was filed in the United States District Court at Pittsburg, against August Sweeney, by his creditors, and on the same day an injunction was awarded, which was never served personally on Isaac Taylor, or in any manner upon his attorneys, but waś served on the sheriff of Armstrong County, on the 18th of January, 1869, after the money had been paid over; that there was no evidence given to show that at the time of receiving the money, either Taylor, his attorney or the sheriff, had any notice of said writ of injunction or proceedings in bankruptcy; that the 2d day of February, 1869, August Sweeney was adjudged bankrupt, in default of appearance to the rule to show cause, and on the 30th day of March, 1869, D. T. Watson was chosen his assignee, to whom an assignment was duly made by the register. Thereupon, on the trial and argument of the cause, occurred questions, as follows: 1. Whether the confession of judgment, execution, levy and sale, as proved, constituted an indirect transfer of the property, with a view to give a preference within the meaning of the 35th section of the Bankrupt Act. 2. Whether the confession of judgment, execution, levy and sale aforesaid, constitute a transfer or other disposition of the property, with a view to give a preference. virtue of the warrant a judgment was entered on the first day of January, 1869, and the execution, levy and sale immediately followed. Were there nothing more in the case, what we have decided in Clark v. Iselin, opinion just read [ante, 568], would determine that no preference within the meaning of the Bankrupt Act was given. The case, however, shows affirmatively that no fraud or collusion was intended, either at the time when the note was given or when the judgment was entered, and that the creditor had no reason to believe the debtor was insolvent. The first, second and fourth questions are, 3. Whether, if the facts aforesaid constituted a transfer or other disposition within the meaning of the Bankrupt Act, it was made at the date of the warrant of attorney, or at or after the time of confessing the judgment. 4. Whether, from the debtor's default in pay-therefore, answered in the negative, and being ment of the debt, the warrant of attorney, the thus answered, the other questions become imconfession of judgment, execution and levy as material. aforesaid, the execution creditor had reasonable cause to believe that the debtor was insolvent, and that the proceedings were in fraud of the Bankrupt Act. 5. Whether the entry of judgment in the state court in the proceedings therein as aforesaid, constitute a bar to the present suit. Clifford, and Mr. Justice Miller as in last Dissenting, Mr. Justice Huut, Mr. Justice preceding case. [See dissenting opinion, ante, 574.] On each of said questions, the opinions of the DENNIS G. LITTLEFIELD and Ira Jagger, judges were opposed. The case was accordingly certified to this court. No counsel appeared for plaintiff. Messrs. Edward S. Golden, James K. Kerr, and Geo. W. Guthrie, for defendant: Since the decision of this court in the case of Wilson v. City Bank, 17 Wall., 473, 21 L. ed. 723, it must be conceded that a creditor having a valid judgment, may issue execution and levy the same on the goods of the debtor, and that the lien thus obtained will be sustained, even though he knew at the time of issuing it, that his debtor was insolvent, or, having a claim which has not yet passed into judgment, he may institute an adversary proceeding, obtain judgment by default and issue execution against his debtor, "up to the very moment of bankruptcy," unless complicity between them can be shown. In Wilson v. City Bank, as in this case, the judgment itself gave no lien. The only difference between the cases is, that in the former, judgment was obtained by default in the adversary proceedings, while in this, it was confessed by virtue of a warrant of attorney given more than four months before, at a time when it was not contended that the debtor was insolvent, or that the creditor had any reasonable cause to believe him so. If the judgment had been entered by Taylor on the day the warrant was executed, it would not have given him any lien whatever, and would not have been of any greater use to him than the warrant itself. In Pennsylvania. A judgment is not a lien on personal property, a lien is not acquired until the writ is placed in the hands of the sheriff. Mr. Justice Strong delivered the opinion of the court: Appts., v. JOHN S. PERRY, Trustee and Executor of Mary J. Perry, Deceased. (S. C., 21 Wall., 205-230.) Patent-right, assignment of rights of assignee -jurisdiction of suit-suit by licensee-estoppel--assignee entitled to re-issue of patent forfeiture-damages-interest. 1. Where one executed to another an assignment of a patent, which was recorded in the Patent Office, and a supplementary agreement was executed between the same parties at the same time, to the effect that the assignment should not give to the assignee the right to use the patent for furaces, but such supplementary agreement was never recorded, the two instruments, executed as they were at the same time, and each referring to the other, are to be construed together. 2. The record of the grant furnishes the strongest evidence of the intention of the parties to give effect to the two instruments as an assignment, and the person to whom the recorded instrument was made was the assignee of the patentee within the meaning of the patent laws, and those claiming under him may sue in the circuit courts to prevent an infringement upon their rights. 3. Such a suit may involve the construction of a contract as well as the patent, but that will not oust the court of its jurisdiction. If the patent is involved, it carries with it the whole case. 4. Where the patentee is the infringer, as he cannot sue himself, the licensee so far as the courts of the United States are concerned, can in his own name sue the patentee for the infringement. 5. Where the assignee assigned all his interest to S., and then executed another assignment to D., and then S. re-assigned to his assignor, the latter is estopped as against D. and his assignee by a decree in the latter's favor. 6. A recorded assignment of a perfected invention, made before a patent has issued, carries with it the patent when issued. Re-issues are not patents for new inventions, but amendments of "old patents. If a re-issue is obtained with the consent of an assignee, it inures at once to his benefit; if without, he has his election to accept or reject it. 7. An assignment of an imperfect invention, with all improvements on it that an inventor may make, NOTE. When assignee may sue for infringement; when patentee must sue; when they must join in suing see note, 11 L. ed. U. S. 1141. Damages for infringement of patents; treble damages see note, 13 L. ed. U. S. 824. Jurisdiction of federal courts in suits relating to patents-see note, 11 C. C. A. 313. is equivalent in equity to an assignment of the perfected results, and the assignee becomes in equity the owner of a patent granted upon the perfected invention. 8. A court of equity will, in such a case, give the same effect to an equitable title that it would to one that was legal. 9. Where the assignment is upon condition that it shall cease and be void in case the assignee shall, after reasonable notice, neglect to make and sell the patented article, there can be no forfeiture for neglect to make and sell, until after reasonable notice of the default. 10. A decree for all the profits which defendant has received from the manufacture or sale of the article to which the improvements have been applied, is too broad. 11. The recovery must be confined to an account of the profits received by the defendants as the direct result of the use, within the assigned territory, of the several inventions involved in the case. 12. Interest in such cases cannot be allowed, as a general rule. [No. 36.] Argued Dec. 10, 11, 14, 1874. Decided Feb. 8, A 1875. PPEAL from the Circuit Court of the New York. prevent the violation of any right [*219 secured by patent. Every patent, or any interest therein, is by statute made assignable by an instrument in writing, and the patentee or his assignee may, in like manner, grant and convey an exclusive right under his patent throughout any specified part of the United States. All such assignments must be recorded in the Patent Office within three months from the time of their execution. This power of assignment has been so construed by the courts as to confine it to the transfer of an entire patent, an undivided part thereof, or the entire interest of the patentee or undivided part thereof, within and throughout a certain specified portion of the United States. One holding such an assignment is an assignee within the meaning of the statute, and may prosecute in the circuit court any action that may be necessary for the protection of his rights under the patent. The title of the complainant in this case United States for the Northern District of grows out of what is termed in the answers "a The bill in this case was filed in the court in "two parts," between Littlefield, that patgrant and supplementary agreement," executed below, by the appellee's testator, for an injunc-entee, and Treadwell & Perry. The "grant" is tion against the infringement of a certain pat- one of the parts, and the "supplementary agreeent and for an account. A decree having been ment" the other. entered in favor of the complainant, the re- contains, in most unmistakable language, an The grant, taken by itself, spondents took an appeal to this court. absolute conveyance by the patentee of his patent and inventions described, and all improvements thereon, within and throughout the States of New York and Connecticut, and an agreement by the assignees to pay a royalty on all patented articles sold, with a clause of forfeiture in case of non-payment or neglect, after due notice, to make and sell the patented ar ticles to the extent of a reasonable demand therefor. This grant was duly recorded in the Patent Office six days after its execution. The parties were all citizens of New York. A patent was issued to Littlefield in 1851, for an improvement in cooking stoves, to secure economy of fuel. An application was made by him in 1852 for a patent upon a further improvement; and in 1853 he made a transfer to Treadwell & Perry of all the right, title and interest which he then had, or might thereafter have, "In or to the aforesaid inventions, inprovements and patent, or the patent or patents that may be granted for said invention or any improvement therein, and on any extension or extensions, etc." The complainant claimed to have acquired by various assignments the interest of Tread well & Perry, and alleged that in defiance of her said rights, the respondents, the said patentee Littlefield and another, were manufacturing and selling within said territory of New York and Connecticut, stoves covered by said patent. The case is further stated by the court. Messrs. E. R. Hoar and H. E. Sickles, for appellants. Messrs. E. W. Stoughton and John H. Reynolds, for appellee. The supplementary agreement was never recorded. It contained, among other things, a stipulation to the effect that nothing in the assignment should give to Treadwell & Perry the right to use or apply the principle of the patent to furnaces erected in cellars or basements of houses for the purpose of heating several rooms, it being the intention of the patentee to reserve that to himself. It also contained certain other stipulations between the [*220 parties, intended for the protection of their respective rights and the regulation of their conduct under the assignment. The defendants now contend that by reason of this reservation, and these several stipulations, the title of Treadwell & Perry, under the grant, has been Mr. Chief Justice Waite delivered the opin-reduced from that of assignees to mere licenion of the court: We are met at the outset of this case with a question of jurisdiction. All the parties, plaintiff as well as defendant, are citizens of the State of New York. The power of the circuit court, therefore, to entertain the cause, if it exists at all, must be found in the jurisdiction conferred by the patent laws. The suit is in equity against a patentee by one who claims to be his assignee, to restrain him from infringing upon rights under his patent, which are alleged to have been assigned. The circuit court has jurisdiction of all suits arising under the patent laws, and has power, upon a bill in equity filed by a party ag. grieved, to grant injunctions, according to the course and principles of courts of equity, to sees. Undoubtedly, for the purpose of ascertaining the intention of the parties in making their contract, the two instruments, executed as they were at the same time, and each referring to the other, are to be construed together. If, when so construed, they shall be found to convey to the assignees the title to the patent and inventions and grant a license back from the assignees to the patentee, of the right to use the patent and its principle in the manufacture of the designated furnaces, the circuit court had jurisdiction of the cause. When the "grant" was placed on record, Treadwell & Perry became the apparent owners of the entire patent and inventions throughout the specified territory. Neither the agree |