with reproduced, it will be seen that the journal bearings of the presserroll may be raised or lowered in the sides of the frame by threaded bolts and nuts similar to the device for that purpose, in the patent in suit, and the distance between the presser-roll and the grinding-roll may be thus increased or diminished at will. As in the patent in suit, the journal bearings are suspended by the bolts referred to, but are free to be moved upwards. There is in each side of the defendant's machine, encircling the bolt, a coiled or helical spring, which furnishes a yielding pressure upon each end of the shaft of the presser-roll. It is apparent, that when the presser-roll is raised for any purpose, the compression of these coiled springs must increase the pressure upon the roll, and so conversely, when the presser-roll is lowered, so as to decrease the distance between it and the grinding-roll, the pressure of the helical spring is decreased. It follows that, in any given required position of the presser-roll, with reference to the grinding-roll, the pressure of these springs can neither be increased nor diminished. To increase the pressure, the presser-roll must be raised, thus abandoning the required position, and conversely, to decrease the pressure, the presser-roll must be lowered, which would again abandon the required position; or, if the two rolls were already so close together that no further approach could be made, no decrease in pressure could be obtained. It is thus seen that the defendant's machine lacks the means of adjusting the pressure of the spring, mentioned in claim 1 of the patent in suit, and particularly set forth by reference to letters H and h, both in the claim and specifications.

It is true, that the function of the two ends of the flat spring, in the machine of the patent in suit, is pressure upon the ends of the shaft of

the presser-roll, and it is also true, that when the presser-roll is raised, without more, this pressure is increased, and when it is lowered, it is decreased. But the essential element in this respect, of the patent in suit. i. e. means for adjusting the pressure, without either raising or lowering the presser-roll, distinguishes this combination from the defendant's device. The screw, h, passing through the transverse top bar of the frame, with its lower end on the top of the plate spring, can increase or diminish the pressure to any desired extent, no matter into what position the presser-roll is raised or lowered. In other words, in defendant's device, the raising or lowering of the presser-roll increases or diminishes the spring pressure, and there is no means for adjusting the pressure thus produced. If it be desirable to raise the presser-roll for any purpose, an increased pressure must be submitted to, for there is no means of restoring it by adjustment to its original energy. Then again, if the presser-roll in defendant's machine is at the distance required for the proper treatment of the feathers passing between them, and increased spring pressure should be desired, there is no way of obtaining it, except by raising the presser-roll, and thus destroying the desired relative distance of the two rolls from each other. On the other hand, in the machine of the patent in suit, when the presser-roll is at the desired distance from the grinding-roll, the pressure upon it may be increased or diminished without at all changing that distance.

The appellant contends that, inasmuch as the coiled springs of defendant's machine are compressed when the presser-roll is raised, and the tension of the springs thereby increased, and the opposite effect is produced when the roller is lowered, there is present in defendant's machine "a means for adjusting the tension of the springs," within the meaning of the claim. From what has been said, it seems to us clear, that this contention cannot be sustained. To support it would be doing violence to any accepted meaning of the word "adjusting." Adjustment of the tension is just as necessary after the raising or lowering of the presser-roll as before, and in defendant's machine, there is no means for such adjustment. It is not true, therefore, that in defendant's machine, a single element performs the functions of two elements specified in the first claim of complainant's patent.

We are of opinion, therefore, that this means of adjusting pressure. is a necessary element of the combination, as specified in the first claim of the patent in suit, and that the same, or any equivalent thereof, is not found in the alleged infringing machine of the defendant.

The decree of the court below is affirmed.

LONDON GUARANTEE & ACCIDENT CO., Limited, v. DOYLE et al. (Circuit Court, E. D. Pennsylvania. May 28, 1904.)

No. 40.

1. EQUITY JURISDICTION-SUIT FOR ACCOUNTING-ADEquate Remedy At Law. Complainant insured defendants, who were building contractors, against liability for injuries to their employés, or to others through the negligence of their employés, the stipulated premiums being based upon a percentage of the amount paid by defendants in wages during the term of the policies. An estimate of such amount was made at the beginning, and premiums paid thereon, the contract providing that defendants should make a statement at the end of the policy period of the actual amount in accordance with which the premium should be readjusted by a rebate or additional payment. Held, that a bill alleging that defendants refused to make such statement, fraudulently claiming that their pay rolls were no larger than estimated, did not state a cause of action for relief in a federal court of equity for a discovery and accounting, the remedy at law being adequate, in view of Rev. St. § 724 [U. S. Comp. St. 1901, p. 583], giving the right to compulsory orders for the production of books and papers.

In Equity. On demurrer to bill.

Thomas Raeburn White, for complainant.
Bell & Rhoads, for respondents.

J. B. MCPHERSON, District Judge. The brief of complainant's counsel accurately outlines the case made by the bill in the following language:

"As set forth in the bill, the plaintiff corporation is engaged in the business of insuring employers of labor against loss on account of liability incurred by them through injuries suffered by their employees, or occasioned to others by their negligence. The defendants, who are contractors and builders, were so insured by the plaintiff during the year 1902-1903, several policies being issued to them on May 28, 1902, covering the various classes of risks. It is obvious that the risk assumed by the insurer is commensurate with the number and character of the employés of the insured. The premiums, therefore, are based upon a percentage of the total amount paid out in wages by the insured during the policy period. As it is impossible to accurately determine in advance what the pay roll during any particular period will be, it is customary for the insured to submit an estimated pay roll at the beginning of the policy term, pay premiums based upon the estimate, and then for an accounting to be taken at the end. At that time, if the pay roll has proven to be less than the estimated amount, the insurer returns a stipulated portion of the premium; on the other hand, if it proves to be greater than the amount estimated, the insured pays an additional premium upon the excess. Such an agreement, with mutual covenants to pay rebates and excess premiums, as indicated, was made between the parties in this case. To further protect itself, the plaintiff required covenants, which were duly entered into by the defendants, to render written statements of the amounts of the pay rolls at the end of the year, under oath, if required, and to allow the plaintiff or its agents to inspect their books 'at all reasonable times' to satisfy itself as to the accuracy of the various estimates made.

"The policies issued for the year mentioned were accepted by the defendants, the premiums based upon the estimated pay rolls were duly paid, and the plaintiff indemnified them according to the contract.

"The bill then avers that many of the pay rolls of defendants were much greater than the amount estimated by them at the beginning of the year, and therefore a duty was imposed upon them by the contract to account for the excess; but that they falsely averred that the actual pay rolls were no

greater than the estimated amounts, declined to furnish written statements, and refused to allow the plaintiff to examine their books, although, under the contract, it was entitled to do so. It then concludes with a prayer for an ac counting, for discovery, and for general relief."

The demurrer is put upon several grounds, of which one only need be considered. In my opinion, the remedy at law is complete and adequate. All that the complainant needs to know is the single fact whether the sum actually paid out by the defendants during the year exceeded the sum that was estimated when the policies were taken out. As soon as this fact is known, the complainant's case is either made out or is lost; and, if made out, the measure of damages is also established.. There are no mutual or complicated accounts to unravel. There is no relation of trust, properly so called, between the parties; and the only fraud charged is the defendants' declaration that "the actual amount of said pay rolls was no greater than the estimated amount." If this is not the truth, the wrong can be fully remedied by compelling the production of the necessary books and papers in a suit at law. It is not necessary that the precise amount (if any) that is due by the defendants should be known to the complainant before the suit is begun. If the company claims enough to be on the safe side, the exact sum can be found out afterwards without doing harm to any one. The case is not distinguishable, I think, from Safford v. Ensign Mfg. Co., 120 Fed. 480, 56 C. C. A. 630, recently decided by the Circuit Court of Appeals for the Fourth Circuit. Section 724 of the Revised Statutes [U. S. Comp. St. 1901, p. 583] seems to furnish all the remedy that is needed in the present case. That section reads as follows:

"In the trial of actions at law, the courts of the United States may, on motion and due notice thereof, require the parties to produce books or writings in their possession or power, which contain evidence pertinent to the issue, in cases and under circumstances where they might be compelled to produce the same by the ordinary rules of proceeding in chancery. If a plaintiff fails to comply with such order, the court may, on motion, give the like judgment for the defendant as in cases of nonsuit; and if a defendant fails to comply with such order, the court may, on motion, give judgment against him by default."

The demurrer is sustained, and the bill is dismissed, at the costs of the complainant.

In re HAYWARD.

(District Court, E. D. Pennsylvania. June 2, 1904)

No. 614.

1. BANKRUPTCY-LANDLORD'S LIEN-NECESSITY OF PROVING CLAIM.

A landlord, having a lien or charge for the rent due him on the property of his tenant at the time of the latter's bankruptcy, but the amount of which was unadjudicated, in order to preserve his right to priority, must establish his claim by proof under the bankruptcy act, the same as other creditors.

In Bankruptcy. On certificate of referee concerning landlord's claim for rent.

Ira Jewell Williams, for landlord.

Alfred Aarons and Henry N. Wessel, for objecting creditors.

J. B. MCPHERSON, District Judge. Sections 83, 84, and 85 of the Pennsylvania act of 1836 (P. L. 777) on the subject of executions provide as follows:

"Sec. 83. The goods and chattels being in or upon any messuage, lands or tenements, which are or shall be demised for life or years, or otherwise taken by virtue of an execution, and liable to the distress of the landlord, shall be liable for the payment of any sums of money due for rent at the time of taking such goods in execution: Provided, that such rent shall not exceed one year's rent.

"Sec. 84. After the sale by the officer, of any goods or chattels as aforesaid, he shall first pay out of the proceeds of such sale, the rent so due, and the surplus thereof, if any, he shall apply towards satisfying the judgment mentioned in such execution: Provided, that if the proceeds of the sale shall not be sufficient to pay the landlord, and the costs of the execution, the landlord shall be entitled to receive the proceeds after deducting so much for costs as he would be liable to pay in case of a sale under a distress.

"Sec. 85. Whenever any goods or chattels liable to the payment of rent as aforesaid, shall be seized in execution, the proceedings upon such execution shall not be stayed by the plaintiff therein, without the consent of the person entitled to such rent, in writing first had and obtained."

The effect of these sections, as declared by the Supreme Court of the state in Barnes' Appeal, 76 Pa. 50, is

"To create a charge in favor of the landlord for rent, not exceeding one year's, upon the goods liable to the distress of the landlord for this rent in and upon the demised premises at the time of taking such goods in execution. After the sale, the officer is required to pay the rent first out of the proceeds and apply the surplus only to the execution. Moreover, after a levy on goods liable to distress the plaintiff in the execution cannot stay proceedings without the consent of the landlord first had in writing. Thus, call the charge a lien, or by any other name, it is clear the rent of the landlord is a prior charge by law, and the sale under execution is for the benefit of the landlord."

When, therefore, an execution was levied on May 28, 1900, upon the bankrupt's personal property on the demised premises, the levy was subordinate to the landlord's claim for rent, which was fully protected by the statutory charge or lien. If a sale had taken place, the claim would no doubt have been paid, but on June 4th the bankrupt filed a voluntary petition, an adjudication thereon was duly entered, and a restraining order was issued forbidding the execution creditor to proceed with the levy. On June 5th the landlord issued a distress warrant, which was levied upon the goods, but apparently was afterwards abandoned. Assuming for the present that the distraint was lawful, although an adjudication had already been entered (Butler v. Morgan, 8 Watts & S. 536), it is evident that the levy gave the landlord no better right than he already had; and, moreover, as the distraint was not proceeded with according to the Pennsylvania statute concerning distress for rent, it became ineffective and may therefore be disregarded. The personal property came into the trustee's hands and was sold several months afterwards, producing the fund now in dispute. In September, 1900, the landlord served a written notice of his claim upon the trustee, but he has never made proof thereof as required by the act. In November, 1902, he applied to the referee

130 F.-46