Burdett v. Estey. passages, while, in the plaintiff's invention, the intermediate partial set extends obliquely between the other two sets to the foundation board, with the vibrating ends of the reeds substantially on the same base as those of the other two sets. The other respect is, that, in this exhibit, the valve openings, from tenor F downward, gradually and uniformly lengthen, till the lower and longest one is about a half inch longer than those above tenor F, while, in the plaintiff's invention, they are of uniform length throughout. This latter variation makes a different thing from those embodying the plaintiff's invention, so far as the variation extends; but, if the rest of it was like the plaintiff's, the variation would not save the infringement and violation to the extent of the rest, for, to that extent, the defendants would be using the patented invention. In this respect, this case would be like Smith v. L. & N. W. R. W. Co., (20 Eng. Law & Eq. Rep., 94.) There, it was held, that a patent for a wheel made of certain materials and in a particular manner was infringed by a wheel made in part of those materials and in that manner, although the rest was wholly different. So, the question is, whether the defendants infringe by making reed and foundation boards with the horizontal partial set instead of the plaintiff's inclined set. The plaintiff's patent is really for a combination of parts, and not for any of the parts themselves, although the word is not used to describe the invention, either in the specification or claims. In describing the nature of his invention, in the fore part of his specification, he says: "This invention consists, first, in the arrangement of the reed board; second, in the method of tuning," &c. The part in relation to the arrangement of the reed board is all that has been sustained and is now in question. The first claim is: "The arrangement, in a reed musical instrument, of the reed board, A, having the diapason set, a, and its octave set, b, and the additional set, L, extending from about at tenor F upward through the scale, substantially as and to the effect set forth." The second claim is: "The reed board, A, and foundation. Burdett v. Estey. board, G, constructed with the contracted valve openings, D, F, F, and the reeds arranged in relation thereto, all in the manner described." None of these parts were new. There were before organs with two sets of reeds having the same valve openings, contracted, in the sense used, and there was, according to the finding, one organ in use having an inclined partial set of reeds extending from tenor F upward. But, there was no organ containing these things arranged as the plaintiff arranged them. He invented this new arrangement or combination of them, and was entitled to, and obtained a patent for that. If the exhibit embodies that, the defendants infringe by making things like it, and are guilty; otherwise, not. The plaintiff claims that the defendants infringe the second claim of the patent, and refers most particularly to the valve openings. It follows, directly, from what has preceded, that the plaintiff has no patent for any sort of valve openings, and that the defendants cannot infringe by the mere use of any, however made, of whatever shape or size. More than that must be brought in. There must be the reed and foundation boards constructed with the contracted valve openings, and the reeds arranged in relation thereto, all in the manner described. So, it comes back again to the arrangement or combination of the reeds with the valve openings, in the boards. It is well settled, that, where there is a patent for a combination of old' parts, there can be no infringement unless all the material parts are used, because, without one of them, the combination or arrangement would be different. (Prouty v. Ruggles, 16 Pet., 336; Vance v. Campbell, 1 Black, 427; Gill v. Wells, 22 Wall., 1.) One of the elements of the plaintiff's combination is the inclined partial set, extending down between the other two sets to substantially the same base. That element is wanting in the defendants' organs, in controversy on this motion, unless their horizontal set is an equivalent for it. In a patent for a combination, the use of equivalents known to be such at the date of the patent, may be excluded. (Gould v. Rees, 15 Burdett v. Estey. Wall., 187; Gill v. Wells, 22 Wall., 1.) Prior to 1866, horizontal sets of reeds, placed on top of the reed board, above other sets, were well known, and had been patented to George G. Hunt, of Wolcottville, Conn., and the plaintiff obtained a patent for bringing them down on an incline, so that their vibrating ends would be on the same base as the other sets, and equally near the valve openings with them, whereby they would take the rush of air at the same time, and speak promptly with them, which patent the plaintiff transferred to the defendants. The improvement covered by that patent was exactly the difference between the plaintiff's inclined and the defendants' horizontal sets, here. One is not an equivalent for the other, and the plaintiff cannot justly now claim it to be. And the plaintiff's patent was, and could be, sustained, upon the finding which was reached, upon such a difference. Had the plaintiff's patent been for a partial set, from tenor F upwards, combined with the two sets of a simple double reed board, it would have failed, because Arvid Dayton's organ, defendants' exhibit 21, in the principal case, would have anticipated it. But it was not for that, and did not profess to be; it was for an inclined set extending down between, and to the same base with, the other two, and not anticipated. In this respect the defendants' organs now in question are nearer like Dayton's than they are like the plaintiff's. The position of the vibrating ends of the reeds in respect to the valve openings is of more importance than that of the rest of the reeds, and the positions of those in both Dayton's and the defendants' organs are nearly the same. It would be manifestly unjust to hold that there was a difference between Dayton's organ and the plaintiff's and thereupon sustain the plaintiff's patent, and then to hold that this style of the defendants' organ is equivalent to the plaintiff's and sustain this claim of infringement. So, the reed and foundation boards are not alike, even down to tenor F, and the defendants are not guilty of any violation of the injunction, in making them. If the boards were alike to that extent, the case would be like Sellers v. Dickinson, (6 Eng. Law Burdett v. Estey. & Eq. Rep., 544,) in some respects, where the use of a part of a patented combination was, under the circumstances, held to be an infringement. Upon this view, the motion must be denied. This decision upon this question, so far as it affects this motion, is not reviewable. The same question may arise in the accounting now going on, and be important there, and be reviewable so far as it would affect that proceeding, unless the decision here would in some manner be conclusive upon the parties. And it is of much more importance to the interests of justice that the decision of this question upon the accounting should be correct, than that the decision upon this motion should be, for, if the plaintiff is entitled to the restraint sought here, he will be entitled to the profits and damages arising from the acts sought to be restrained, which, in contemplation of law, will compensate him; and, if not entitled, he loses nothing here or there. And, if the defendants are liable to the restraint, they will make good their liability there, while, if not, they ought not to, and will not, suffer anything here or there. Therefore, this decision ought not to be conclusive upon any question that may be raised there, and should be limited so as clearly not to be. The motion is denied, without prejudice to either party, elsewhere than upon the motion. Edward J. Phelps, for the plaintiff. Edward N. Dickerson and Charles C. Beaman, Jr., for the defendants. IN THE In re Samuel Wilson and Thomas Greig, Bankrupts. MATTER OF SAMUEL WILSON AND THOMAS GREIG, ALLEGED BANKRUPTS. Under the statute in regard to compositions in bankruptcy, (Act of June 22d, 1874, §§ 17, 18 U. S. Stat. at Large, 182,) a debtor may be excused by the creditors from answering inquiries, even though he is present at the meeting of creditors. On a review in bankruptcy the Circuit Court cannot consider objections to a proceeding in composition, that were not taken in the District Court. It is no valid objection to a composition, that it is unsecured and payable in instalments, and that the property of the debtor is restored to him, to be dealt with at his pleasure. When questions of policy and expediency have been fairly before the creditors and disposed of by them, and their action has been approved by the register and the District Court, such action will not be interfered with by the Circuit Court, on review. The provisions of the composition in this case considered and held not to violate the statute or to be improper. (Before BLATCHFORD, J., Southern District of New York, March 26th, 1879.) BLATCHFORD, J. The record shows, that, at the first meeting of creditors in regard to the composition, on April 24th, 1878, it was stated, by the counsel for the debtors, that Mr. Greig was prevented, by sickness, from attending the meeting, and that Mr. Greig's physician was in attendance to testify to facts in support of such statement. The physician was then examined and was cross-examined by five counsel for various creditors, and, among them, by the counsel for Brigg, Entz & Co., the creditors who bring this petition of review. During such examination, Mr. Greig appeared. The meeting was then adjourned to April 25th, 1878, at 9.30 A. M. On that day, between 9.30 and 10 A. M., Mr. Greig appeared, but he retired before 10 A. M., and before the opening of the meeting, and was not present at its opening. A resolution was then moved that Mr. Greig be excused from further attendance at such meeting and at any adjournment thereof, and from submitting himself to any examina |