Loan and Trust Co. vs. G. B. & M. R. R. Co. mortgages given to secure bonds, the interest on which was unpaid. The genuineness of these instruments and the validity of the debt they represented and secured are not questioned. By the allegations of the bill in the foreclosure suit which is part of the record, it appears that the holders and owners of bonds amounting to more than one half of the entire issue under each of the mortgages, requested the trustee to institute foreclosure proceedings. This is not denied in the present petition, and, if true, it was the duty of the trustee to file the bill in behalf of all the bondholders. It could not concern bondholders how service of process on the company was obtained, provided the court legitimately obtained jurisdiction of the parties. And why should not the mortgages be foreclosed, provided a reasonable proportion of the holders of bonds requested it to be done? Certainly the petitioner cannot be heard to say that it was the duty of the company to resist and obstruct a foreclosure. If the mortgages were valid, and the debt due, and if the company could not make payment, the contrary of which the petition does not allege, then it was the duty of the company to permit the trustee to foreclose, and the bondholders to realize their money. Nor upon such a state of facts does it seem to me that it would be a fraud upon bondholders if the president of the company were to employ counsel to act for the company, even in advance. ment of the foreclosure. The gist of the petitioner's allegations is, that certain bondholders, one of whom was president of the company, retained counsel for the company, for the purpose of procuring service of process of subpoena, and upon whom such service might be made, in a genuine action to foreclose valid mortgages given to secure a just debt. Stockholders being silent, I am unable to perceive how the petitioner can maintain that the proceeding complained of was a fraud upon her or a fraud upon the court. There are allegations to the effect that the object of Blair and Dodge and Loan and Trust Co. vs. G. B. & M. R. R. Co. their associates was to obtain ultimate control of the mortgaged property. But the proceedings to foreclose the mortgage were necessarily public. The sale following the decree must likewise be public and open to all bidders. Confirmation of the sale by the court, must of necessity, also be open to the resistance of any party in interest, if the sale should not be fairly conducted, or if there should be such inadequacy of price as involved a sacrifice of the property, or injury to parties interested. Considering this matter in all the points of view suggested, the manifest infirmity in the petitioner's case upon this branch of it, is, that she shows no fraud upon her and no injury to her. Attention was called on the argument to certain admissions contained in the answer of the company filed by Cottrill & Cary in the foreclosure suit, as prejudicial to the rights and interests of the petitioner. But it is not perceived how they could operate to her injury, and moreover the truthfulness of those admissions is nowhere denied or questioned in the present petition. I have examined with care the cases cited by petitioner's counsel: Lord vs. Veazie, 8 Howard, 251; Gaines vs. Hennen, 24 Howard, 553; Wood Paper Company vs. Heft, 8 Wallace, 334; Cleveland vs. Chamberlain, 1 Black, 419, and Forrest vs. Manchester, etc., Ry. Co., 4 De Gex, Fisher & Jones, 126, or 65 English Chancery, 126. This opinion has already been extended to such length that I forbear to enter upon a review of those cases further than to say that I deem them, upon their facts and in the principles they involve, inapplicable to the case at bar. 6. Incorporated in the petition is a copy of the bondholders' agreement and proposed plan of reorganization of the Green Bay & Minnesota Railroad Company, which it is alleged Blair and Dodge and their associates seek to consummate to the Loan and Trust Co. vs. G. B. & M. R. R. Co. alleged detriment of other bondholders and stockholders. I have been somewhat at a loss to determine just the extent to which this extrinsic matter should be considered by the court as bearing upon the validity of the proceedings in the foreclosure suit, or as affording ground for the petitioner to file a bill of review. Certainly it can only be considered to the extent that the particular interests of the petitioner may be involved. The agreement appears to be a voluntary one, and holders of bonds, second as well as first mortgage bonds, with certain stockholders of the company, are permitted to participate in it. The provisions are such as I believe are usual in such agreements. The plan of reorganization contemplates the issue of first and second mortgage bonds, and of preferred and common stock, by a new company, and provides for the exchange, on certain terms and at certain rates, of bonds and stock of the old company for bonds and stock of the new. Such equality of footing as may render secure the various interests of the parties who may enter into the arrangement, appears to be accorded to different classes of bondholders and stockholders, and on the whole, in considering this branch of the case, I do not think that such grounds of objection are presented, or such probable injury to petitioner is shown as makes the petition sustainable. 7. Finally and generally, it may be stated that even if the court were in doubt as to the disposition that should be made of the present petition, it would be a serious question whether that doubt would not have to be resolved against the petitioner because of her own laches. As before stated, the bill in the foreclosure suit was filed in January, 1878. Since that time, the bill, subpoena, record of service of subpoena and the answer have been on file. The decree was entered in April, 1879. Nearly two years afterward, and within a few days before the sale is advertised to take place, the present petition is filed. Certainly the delay has been great, and it Rowell vs. Lindsay. can hardly be said that it is sufficiently excused by any averments to that end contained in the petition. Then it is not certain that the petitioner, as the holder of the bonds described in her petition, has any real interest in the subject matter of this controversy. Her bonds are secured by the second mortgage. There is no allegation that they are included in the $850,260 of second mortgage bonds which were issued to take up past due first mortgage coupons and which became secured by the first mortgage, nor is there any averment that the mortgaged property is of sufficient value to pay more than the first mortgage. There is in fact no allegation whatever touching the value of the property covered by the mortgages. In conclusion, upon all the grounds and for the various reasons stated, the demurrer to the petition will be sustained and the petition will be dismissed. JOHN S. ROWELL et al. vs. EDMUND J. LINDSAY et al. CIRCUIT COURT-EASTERN DISTRICT OF WISCONSIN-MARCH, 1881. IN EQUITY. 1. PATENT FOR COMBINATION-INFRINGEMENT.—A patent for a combination of known parts is not infringed by the use of any number of the parts less than the whole; but if there are new parts to the combination, which are claimed as inventions, the use of these new parts is an infringement. 2. EXTENT OF CLAIM.-Where the patentee in his claim states only Rowell vs. Lindsay. the combination as his invention, it will be conclusively presumed that the separate parts are old and in common use. 3. SUIT FOR INFRINGEMENT—ABANDONMENT OF CLAIM.—If a patentee, suing for an infringement, declares upon a combination of elements as constituting the novelty of his invention, he cannot abandon a part of such combination and maintain his claims to the rest, much less can he prove part of his combination immaterial or useless. 4. SUBSTITUTION OF PARTS-NEW ELEMENTS-NEW COMBINATION.-A patented combination is not infringed by the substitution for one of the parts, of an element which is new or which performs a substantially different function, or of one which was old, but at the date of the patent not known as a substitute for the omitted part; or by a new combination of the elements of the patent. 5. PATENT FOR CULTIVATOR.-A patent for an improvement in cultivators claimed the combination of a slotted beam, shank, brace-bar and bolt, constructed and arranged to operate as and for the purposes specified: Held, that such combination was not infringed by a machine which omitted the brace-bar and did not substitute any equivalent element which wholly performed the same functions. Jas. J. Dick and A. R. R. Butler, for complainants. Wood & Boyd and J. P. C. Cottrill, for defendants. DYER, J.-This is a bill to restrain the infringement of a patent for an alleged new and useful improvement in cultivators. The original patent was issued to complainants July 3, 1866. A re-issue was granted March 31, 1868. Various defenses are interposed, one of which is that the defendants are selling cultivators made by Thomas, Ludlow & Rodgers, of Springfield, Ohio, which are covered by letters patent No. 152,706, granted to J. H. &. J. W. Thomas, June 30, 1874, and they deny that they are infringing complainants' patent. In the specifications of the patent, the invention is described as consisting of the application to the shank, B, of the tooth, a curved brace-bar, C, the upper end of which passes through a slot or mortise in the beam, A, and is held in position by a clamping-bolt, D, which passes transversely through the slot or mortise near the brace-bar, so as |