impossible to see in all this evidence of abandonment. It was correctly said by Justice Clifford, in Jones vs. Sewall (3d vol. Patent Office Official Gazette, 1873, p. 630), to be settled law, that the mere forbearance to apply for a patent during the progress of experiments, and until the party has perfected his invention, and tested its value by actual practice, affords no just grounds for presuming an abandonment: Kendall vs. Winsor, 21 How. 328; Agawam Company vs. Jordan, 7 Wall. 607. It is true an express relinquishment of an invention to the public is not indispensable to an abandonment. It may be inferred from long delay unexplained, or from acts of the inventor inconsistent with any other theory, but it cannot be presumed from mere delay to apply for a patent when the inventor is all the while perfecting the invention and testing its merits. Nor has it any bearing upon the case that Smith's experiments were made in public, and that his experimental engines were run upon a railroad that was a public highway. Thus only could the invention be tested. There is an obvious distinction between a public use, or a use by the public, and an experimental use in public. In many cases it has been decided that a use in public for test or experiment is not such a public use as was contemplated by the act of Congress, nor such a use as can be held evidence of dedication to the public. The Nicholson pavement case was notably one. It has not been contended, and certainly in view of the evidence it ought not to be, that the Smith invention was in public use, or on sale, with his consent, more than two years prior to his application for a patent. It appears to have been used on the Old Colony Railroad in April, 1859; but there is nothing to show that such use was allowed by Smith, or that he knew of it. My conclusions then upon the whole case are as follows: 1. The combination claimed by Alba F. Smith, and described in his specification, was a patentable invention. 2. The patent granted to him on the 11th day of February, 1862, is not void for want of novelty of the invention. The invention had not been anticipated. 3. There is no sufficient evidence that the patentee abandoned the invention. 4. The patent is not invalid because the invention was in public use, or on sale with the allowance of the inventor, more than two years before his application for a patent. The only question that remains is, whether the defendants have been guilty of infringement. In regard to this, there is no controversy; an infringement is very clearly proved. I shall therefore order the injunction prayed for in the bill, and decree an account, etc. Let a decree be prepared accordingly. Keller & Blake, Esqs., for complainants. Chapman Biddle and John H. B. Latrobe, Esqs., for defendants. Eastern District of Pennsylvania.-In Equity. BURROWS & LISTER V8. THE LEHIGH ZINC COMPANY. Burrows' patent for a furnace to be used in the manufacture of white oxide of zinc, not upheld, as he was not the first inventor. Opinion delivered October 5, 1874, by MCKENNAN, C. J.-The patent in controversy here was granted to the complainant Burrows, for a furnace, to be used in the manufacture of white oxide of zinc. Assuming that the furnaces in use by the defendants are within the scope of this patent, a fundamental question in the case is, whether Burrows was the first inventor of them. Simply a question of fact, as this is, I do not deem it necessary to discuss the voluminous testimony touching it, especially as this testimony cannot be fully comprehended and properly weighed without the aid of the models and exhibits in the case. A careful consideration of it has brought me to the conclusion that Burrows was not the first inventor of the furnace employed by the defendants. In September, 1862, Samuel Wetherill filed a caveat, dated in July previous, in the patent office, and about that time, erected an experimental furnace to illustrate a new method of producing white oxide of zinc, for which a patent was afterwards granted to him. This experiment was successful; and the furnaces now complained of as infringements, were originally constructed with special reference to the practice of the Wetherill process, and in substantial conformity to his experimental furnace. Burrows made the application for his patent in October, 1852, but it is sought to carry back his invention to the date of experiments made by him in the early part of 1851. According to the preponderating weight of the proofs, these experiments were unsuccessful, and neither as to the form and design of the furnace used, nor the method of its use, was the peculiar structure or special adaptability of the defendants' furnaces indicated. The mechanical devices which were common to both are old, and could not be exclusively appropriated. The scope of Burrows' patent, in so far as it may be taken to embrace the defendants' furnaces, must, therefore, be limited to the date of his application, and as the form and adaptability of these furnaces were devised by Wetherill, and the furnace was successfully used by him before that date, the complainants' bill must be dismissed with costs, and it is so ordered. [Leg. Int., Vol. 31, p. 357.] IN THE MATTER OF THE ESTATE OF JAY COOKE & Co. After a bankrupt's estate has been placed in the hands of a trustee under the direction of a committee of creditors, by virtue of the 43d section of the bankrupt act, the court cannot, in the absence of fraud, call a meeting of creditors to control the committee's action. This case was heard before Strong, J., and McKennan, C. J., under the supervisory powers of the Circuit Court under the bankrupt act, on the petition of E. W. Clarke et al., creditors of Jay Cooke & Co., and also on the petition of E. M. Lewis, trustee of said bankrupt's estate, and of John Clayton et al., the committee of the creditors of said estate. The petition of E. W. Clarke et al., alleged that on November 26, 1873, Jay Cooke & Co. were adjudicated bankrupts. That on the 10th day of December, 1873, warrant was issued to the United States marshal, appointing the first meeting of the creditors to be held on the 15th day of January, A. D. 1874, and on the 29th day of January, 1874, the report of the register was made to the said United States District Court of the adjourned first meeting of the creditors; and that three-fourths in value of the creditors whose claims had been proved, had determined and resolved that the estate of the bankrupts should be wound up and settled as provided for in the 43d section of the bankrupt act, and had nominated and chosen Edwin M. Lewis for trustee, and for committee of creditors, John Clayton, Isaac Norris, Robert Shoemaker, Joseph Brown, Charles P. Helfenstein. That the court afterwards duly confirmed the resolutions of the creditors and the appointment of a trustee and committee of creditors. That on the 11th of September, 1874, the petition of Oliver Edward Yeakill was presented to the said District Court, in which the said petitioner averred that he had proved a claim against the said estate of $3,864.92, and praying that said trustee be ordered to file a full account of the bankrupt estate and payments by him made, and such further order as said court might think proper, and that a dividend be forthwith declared. Whereupon, on the same day, the said United States District Court did order as follows, to wit: "It is ordered that a second meeting of the creditors of said bankrupts, to be held at the Horticultural Hall, Broad street below Locust, in the city of Philadelphia, in said district, on the sixth day of October, 1874, at 11 o'clock A. M., before Joseph Mason, one of the registers in bankruptcy in said district, for the purposes named in the twentyseventh and twenty-eighth sections of the act of Congress, entitled 'An act to establish a uniform system of bankruptcy throughout the United States,' approved March 2, 1867. And it is further ordered that the trustee give notice of said meeting," etc. That the estate of the bankrupts, from the amount, nature and character of the assets, the difficult questions of fact and law, arising in several of the large claims against it, the number of the partners and rights of their individual creditors, can only be best wound up and settled for the interests of the creditors, by the same being done by the trustee, under the inspection and direction of said committee of creditors, as agreed upon by three-fourths in value of the creditors, and ordered by the said order of the said District Court, made January 30, 1874, as above set forth. That the creditors of said bankrupts are in number over two thousand, and if they could all attend such meeting, it would be impossible for them intelligently to act upon and determine what part of said estate should be set aside, and what part divided; and the other matters on which, by said sections 27th and 28th, under which said meeting is to be held, they are to act; but as by reason of said creditors being scattered over all parts of the United States, as well as of Canada and foreign countries, very many may not be present, and as it needs only one-half in value of the creditors to attend to render the action of the meeting valid, of whom the vote of a majority in value. is binding; if such a meeting be lawfully held, the vote of a little over one-fourth in value, may therefore supersede and overrule the action of the trustee and committee, to whom three-fourths have confided their interests. Your petitioners, however, are advised that by the action of the creditors and order of the District Court of January 30, 1874, transferring the settling and winding up of this estate to said trustee and committee, under the 43d section of said bankrupt act, the powers given to the creditor by the 27th and 28th sections of said act were waived and suspended. The said sections only refer and extend to the winding up of the estate by an assignee, and do not refer to the settling of the estates after the same has been intrusted to a trustee and committee, under the 43d section. They therefore submit respectfully, that the order of the said District Court, made September 11, 1874, was erroneously made, and pray the same be reversed, or so modified as in no way to supersede, change, or affect the winding up and settlement of the estate by the said trustee under the inspection and direction of said committee of creditors. The petition of the trustee and of the committee of creditors was practically to the same effect as the petition of E. W. Clarke et al. Counsel for petitioners argued chiefly that after the requisite number of creditors had resolved that the estate should be wound up in the manner prescribed in the 43d section, and the court had confirmed the resolution, the District Court no longer had any power to order a meeting of the creditors for the purposes mentioned in the 27th and 28th sections of the bankrupt act; and cited English bankrupt act of 1861, sec. 185-191; Scotch bankrupt act of 1856, 19 and 20 Victoria, ch. 79, sec. 35-40; Eden's Bankrupt Law, 443; Lobson's Law of Bankruptcy, 628, edition of 1872; Irving vs. Gray, 3 H. & N. 34; Shelford's Bankruptcy, 620; General Order, 21; Bankruptcy Form, 63; 1 Kent, 314. As to control over discretion of trustee: Williams' Appeal, 23 P. F. S. 249; Wain vs. Egmont, 3 M. & K. 449; Drever vs. Mawdesley, 16 Sim. 511; Hayman vs. Governor of Rugsby, Law Rep. 8 Eq. 28. Opinion delivered October 28, 1874, by STRONG, J.-This is an application made by the trustee and committee chosen and appointed under the provisions of the 43d section of the bankrupt act, as well as by some of the creditors of the bankrupts for a review of an order of the District Court directing a second meeting of creditors for the purposes stated in the 27th and 28th sections of the act. Several objections have been made to the order, only one of which do we propose now to notice. It is that three-fourths in value of the creditors whose claims have been proved, having determined that the estate shall be wound up in the manner prescribed by the 43d section, and their resolution having been confirmed by the District Court, there is no longer any power in that court to order a meeting of creditors for the purposes mentioned in the 27th and 28th sections of the bankrupt act, and that such meeting, if called, would have no authority to resolve and direct as contemplated in those sections. The bankrupt act of 1867 has very plainly provided two very dif ferent systems for winding up, settling and distributing the estates of bankrupts. The first, and the ordinary one, is that prescribed by the 27th and 28th sections, applicable to all cases when the greater part of the creditors in number or in value, who have proved their debts, at their first meeting choose an assignee or assignees, or where the district judge or the register appoints one or more assignees. In such cases the 27th section requires that a general meeting of the creditors be called at the expiration of three months from the adjudication of bankruptcy, or earlier if the court so direct, and requires the assignee to report to the meeting as well as to the court an account of his receipts and payThe assignee is also required to submit to the meeting the schedule of the bankrupt's creditors, and property as amended, and a statement of the whole estate of the bankrupts as then ascertained, of the property recovered and of the property outstanding, specifying the cause of its being outstanding, also what debts or claims are yet undetermined, and stating what sum remains in his hands. The section further enacts, that at such meeting the majority in value of the creditors present shall determine whether any and what part of the proceeds of the estate, after certain deductions, shall be divided among the creditors, with a proviso, that unless at least one-half in value of the creditors shall attend such meeting, either in person or by attorney, it shall be the duty of the assignee so to determine, and in case a dividend is ordered, the assignee is required to pay it under the direction of the court. By the 28th section provision is made for a second and third meeting of the creditors, with like powers, and it is enacted that at the third meeting, called by the court, a final dividend shall be declared, unless an action at law or suit in equity be pending, or unless some other estate or effects of the debtor afterwards come to the hands of the assignee, in which case the assignee shall, as soon as may be, convert such estate or effects into money, and within two months after the same shall be so converted, it is required to be divided in manner aforesaid. It is further directed that after the third meeting of the creditors no further meeting shall be called, unless ordered by the court; and it is enacted that if at any time there shall be in the hands of the assignee any outstanding debts or other property due or belonging to the estate which cannot be collected and received by the assignee without unreasonable or inconvenient delay or expense, the assignee may, under the direction of the court, sell and assign such debts or other property in such manner as the court shall order. Thus, it appears, that under these provisions very large powers over the winding-up, settlement and distribution of a bankrupt's estate are given to the District Court and to a majority in value of the creditors who may be present at a general meeting, or in case a majority in value are not present at the meeting, to the assignee. But the 43d section of the act prescribed another system, the obvious purposes of which were to arrest the ordinary mode of proceeding to wind-up, settle and distribute a bankrupt's estate, to suspend some of the powers conferred upon the District Court, and to confer upon representatives of the creditors authority not to be exercised by the general |