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ings in the case, the burden of showing that he was a purchaser for value, or claims title through such a purchaser, was on the plaintiff."

a bona fide holder for value, the plaintiff, without showing that he had himself paid value, could avail himself of the position of such preAs to the last of these instructions, there is vious holder. In Byles on Bills, 119, 124, it is no ground whatever upon which it could stand. correctly said that "If any intermediate holder The pleadings did not, of themselves, impose between the defendant and the plaintiff gave upon plaintiff the necessity of showing either value for the bill, that intervening considerathat he, or any prior holder of the bonds, was tion will sustain the plaintiff's title." In Huna purchaser for value. As holder he is pre- ter v. Wilson, 19 L. J. (N. S.), 8, the plea was sumed to have acquired them in good faith and that the bill of exchange was drawn by a named for value. Goodman v. Simonds, 20 How.,366 person, at the request and for the accommoda[61 U. S., XV., 941]; Murray v. Lardner, 2 tion of the defendant, without any consideraWall., 121 [69 U. S., XVII., 859]; Shaw v. R. tion or value whatever, and that it was indorsed R. Co., 101 U. S., 564 [XXV., 894]; Swift v. by that person without any consideration or Smith, 102 Id., 444 [XXVI., 194]. The plea of value given by the plaintiff for such indorsenon est factum did not put in issue the fact that ment either to the defendant or to said person, he was the holder. Legislative authority for an or to any other person whatsoever. It was held issue of bonds being established by reference to that the plea ought to have contained a statethe statute, and the bonds reciting that they ment equivalent to an allegation that none of were issued in pursuance of the statute, the ut- the previous parties to the bill had given value most which plaintiff was bound to show to en- for the indorsement. One of the Judges retitle him, prima facie, to judgment, was the due marked that "Some party to the bill may have appointment of the commissioners and the ex-given value for it, so as to vest a valid title in ecution by them, in fact, of the bonds. It was the plaintiff. We cannot tell through how not necessary that he should, in the first in many hands it may have passed." It is not necstance, prove either that he paid value, or that essary in this case to hold that the plea in such the conditions preliminary to the exercise by a case should aver that no previous holder of a the commissioners of the authority conferred negotiable security paid value. But the case by statute were, in fact, performed before the last cited is authority for the proposition that bonds were issued. The one was presumed the present plaintiff may be protected by showfrom the possession of the bonds; and the other ing that some previous holder paid value. was established by the statute authorizing an issue of bonds, and by proof of the due appointment of the commissioners, and their execution of the bonds, with recitals of compliance with the statute. So we have often ruled in numerous cases with which the profession are familiar and which need not be cited.

This question was directly adjudged in Comrs. v. Bolles, 94 U. S., 109 [XXIV., 47]. One of the issues there, was, whether the plaintiffs were bona fide holders of certain municipal bonds. After stating that the legal presumption was that they were, the court, speaking by Mr. Justice Strong, said: "But the plaintiffs are not But the contention of counsel is that it was forced to rest upon mere presumption to supcompetent, under the plea of non est factum, port their claim to be considered as having the to prove either fraud or illegality in the incep- rights of purchasers without notice of any detion of the bonds, in order to remove the pre-fense. They can call to their aid the fact that sumption of bona fide ownership for value which arises from the mere possession of the bonds, and thus compel plaintiff to show that he paid value for them. Consequently, it is argued, the first of the foregoing instructions should have been given.

It is not necessary to extend this opinion by a review of the adjudications in the American and English courts to which our attention has been called, or to deduce therefrom a general rule to govern every case in which it may be claimed that the proof upon the part of a defendant in a suit upon a negotiable security, requires the holder, before he can recover, to show that he paid value. Without entering upon a critical examination of the authorities upon this important question of commercial law, and assuming, for the purposes of this case merely, that the proof, of the exclusion of which the Township complains, was competent evidence for some purposes under the plea of non est factum, we are of opinion that the instruction in question ought to have been refused. Its rejection was proper for the reason, if there were no other, that it required the jury, if they believed either fraud or illegality in the inception of the bonds to have been established, to find for the Township, unless the plaintiff proved that he purchased for value or gave some consideration for them. Such is not the law; for, if any previous holder of the bonds in suit was

their predecessors in ownership were such purchasers. To the rights of those predecessors they have succeeded. Certainly the railroad company paid for the bonds and coupons by paying an equal amount of their stock, which the county now holds; and nothing in the special facts found show that the company knew of any irregularity or fraud in their issue." The court proceeded: "And still more; the contractor for building the railroad received the bonds from the county in payment for his work, either in whole or in part, after his work had been completed. There is no pretense that he had notice of anything that should have made him doubt their validity. Why was he not a bona fide purchaser for value? The law is undoubted, that every person succeeding him in the ownership of the bonds is entitled to stand upon his rights."

When the instruction in question was asked, the proof was that the bonds had been issued by the commissioners, and exchanged with the railroad company for a like amount of the company's income bonds. That exchange was a substantial compliance with the statute. It was made under a contemporaneous agreement between the commissioners, the railway company and certain trustees, mutually selected, whereby the bonds passed, upon the exchange, under the control of those trustees and were deposited in the Union Trust Company, to be surrendered,

$10,000 at a time, only as the work of constructing the railroad progressed, to the company or the contractor on their order. The receipt of the trust company shows that it agreed to deliver them to the contractor or his agents or assigns, on the joint order of the trustees or any two of them. And it was proven that the

bonds were delivered to the contractor or upon his order between May 10, 1870, and August 4, 1871. The road was constructed as contemplated and the income bonds of the company remained in the hands of the commissioners or of some of them. Whether those bonds ultimately proved to be of any value, is of no consequence as between the Township and the plaintiff.

the testimony is of such a conclusive character as
legal discretion, to set aside a verdict if one were
would compel the court, in the exercise of a sound
returned in opposition to such testimony.
[No. 146.]

Argued Jan. 9, 10, 1883. Decided Mar. 5, 1888.
IN ERROR to the Circuit Court of the United

States for the District of New Jersey.
This action was brought in the court below,
by the defendant in error, to recover the amount
alleged to be due on certain bonds and interest
coupons issued by the Township of Montclair
in aid of a certain railroad company.

The trial resulted in a verdict and judgment in favor of the plaintiff for $41,588.65, whereupon the defendant sued out this writ of error.

For the history of the issue of the bonds in question see the preceding case of Montclair v. Ramsdell, ante, 431.

Messrs. Thomas N. McCarter, William M. Evarts and John L. Blake, for plaintiffs in

error.

Mr. Barker Gummere, for defendant in error.

of the court:
Mr. Justice Harlan delivered the opinion

The bonds in suit are of the same issue as those involved in Montclair v. Ramsdell [ante, 431], just decided.

It thus appears that, when the court was asked to give an instruction upon the basis that plaintiff could not recover unless it was proven that he paid value for the bonds, it was established beyond question that the bonds had previously passed into the hands or become pledged for the benefit of the contractor who built the road. He acquired an interest or a lien on the bonds, to secure payment of the amount due him for his work and labor. He, therefore, became a holder for value in the sense that he paid real in contradistinction from apparent value, without notice of any fraud or illegality affecting the bonds. Story, Notes, sec. 195; R. R. Co. v. Bank, 102 U. S., 14 [XXVI., the circumstances under which the respective The cases do not materially differ, except in 61]; Byles, Bills, 117. No evidence was intro- plaintiffs became the holders of the township duced or offered which in any degree impeached bonds. In this, as in the other case, the Townhis good faith, or proved knowledge on his part ship was denied the opportunity to establish that the preliminary conditions prescribed by certain facts which, it claimed, tended to show statute had not been fully performed. The char- fraud or illegality in the inception of the bonds, acter of the bonds as negotiable securities, free apart from any question of legislative authori from defenses which might have been available ty. If it be conceded that the evidence offered as between the original parties, was established and excluded was admissible under the plea of by their being pledged for the benefit of the non est factum, which was the only plea to the contractor. So that, even if there was fraud or special counts on the bonds and coupons; and, illegality in the inception of the bondsapar from also, that such evidence tended to show fraud or such illegality as would have made the bonds illegality in their inception, still there was no absolutely void by whomsoever held, a defense error in the ruling of the court. For if, as counupon that ground would not have been good sel contend, proof of such fraud or illegality against the contractor and, consequently, is not would shift the burden of proof upon plaintiff, available against the plaintiff. The latter, in to show how and upon what consideration he virtue of the new and independent title derived came by the bonds, that exigency was met by from or traced to a prior bona fide holder for val- proof that plaintiff was, in every sense, a bona ue, could stand upon the rights of such holder. fide holder for value. That he purchased the In any view of the case no error was com-bonds for value and without notice of any fraud mitted to the prejudice of the Township, in excluding any of the evidence offered, or in refusing any of the instructions asked in its behalf. Other questions in the case we pass by, as not necessary to be examined. We have considered all that seemed to affect the substantial rights of the parties.

The judgment is affirmed.
True copy. Test:

or illegality upon the part of the commissioners in the exercise of the power conferred by the statute, was so clearly shown that the court below was justified in saying to the jury (as, in effect, it did) that the evidence left no room to dispute the fact. The action of the court, in that respect, was consistent with the rule fre quently announced, that the jury may be con

James H. McKenney, Clerk, Sup. Court, U. s. trolled in their determination of a question, by

Cited 109 U. S., 352; 111 U. S., 16; 113 U. S., 142.

INHABITANTS OF THE TOWNSHIP OF
MONTCLAIR, In the COUNTY OF ESSEX,
N. J., Plffs. in Err.,

V.

CHARLES DANA.

(See S. C., 17 Otto, 162, 163.)
Instruction to a jury.

*The jury may be controlled in their determination of a question, by a peremptory instruction, if *Head note by Mr. Justice HARLAN,

a peremptory instruction, if the testimony is of such aconclusive character as would compel the to set aside a verdict if one were returned in opcourt, in the exercise of a sound legal discretion, position to such testimony. Ins. Co. v. Doster [ante, 65], October Term, 1882; Hendrick v. Lindsay, 93 U. S., 146 [XXIII., 856].

All other questions raised by the assignments of error, and which are deemed of any moment, are concluded by the decision in the Ramsdell Case.

The judgment is affirmed.
True copy. Test:

James H. McKenney, Clerk, Sup. Court, U.S.

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Appellant's claim arose on or about the last day of December, 1865. His petition was not filed within six years from that date, and not until November 22,1872. The Government pleaded limitation, and the petition was dismissed upon the ground that the claim was barred.

Claimant was engaged in the service of the

Statute of Limitations demurrer-effect of re-insurgent Government, but he insists that in

bellion.

1. Where it appears by the petition in the Court of Claims, that a claim is barred by the Statute of Limitations, the objection may be taken by demurrer. 2. That the claimant was, prior to the amnesty Proclamation of 1868, unable by reason of his connection with the rebellion to comply with the terms upon which the Government had consented to be sued in the Court of Claims, is his misfortune and cannot have the effect of enlarging the time fixed by the Statute of Limitations. [No. 168.]

Submitted Jan. 30, 31, 1883. Decided Mar. 5, 1883.

AF

PPEAL from the Court of Claims. The history and facts of the case appear in the opinion of the court.

virtue of the amnesty Proclamation of December 25, 1868, his disabilities were removed, and his rights, privileges and immunities, under the Constitution, restored. His specific contention is, that within the true meaning of the Statute, his claim was not cognizable by the Court of Claims, and did not accrue, until he was in such position that he could invoke its jurisdiction. That, it is asserted, was impossible before the promulgation of the amnesty Proclamation of December 25, 1868 [15 Stat. at L., 711].

We said in McElrath v. U. S., 102 U. S., 440 [XXVI., 192], that the Government could not be sued except with its consent, and that it may restrict the jurisdiction of the Court of Claims to certain classes of demands. The Acts in question do contain restrictions which that court may not disregard. For instance, where it appears in the case that the claim is not one for

Messrs. T. W. Bartley and M. I. Southard, for appellant. Mr. S. F. Phillips, Solicitor-Gen., for ap-which, consistently with the Statute, a judgpellee.

Mr. Justice Harlan delivered the opinion of

court:

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ment can be given against the United States, it is the duty of the court to raise the question whether it is done by plea or not. To that class may be referred claims which are declared It is provided by the Act of March 3, 1863, barred if not asserted within the time limited by amending that of February 24, 1855 [10 Stat. at the Statute. What claims are thus barred? The L.,612], establishing the Court of Claims "That express words of the Statute leave no room for every claim against the United States, cogniza- contention. Every claim, except those specially ble by the Court of Claims (that is, such as the enumerated, is forever barred unless asserted Government permits to be asserted against it by within six years from the time it first accrued. suit in that tribunal) shall be forever barred, And that there might be no misapprehension as unless the petition, setting forth a statement of to the intention of Congress, the Statute, after the claim, be filed in the court, or transmitted enumerating the cases to which the limitation to it under the provisions of this (that) Act, of six years should not apply, declares that "No within six years after the claim first accrues. other disability than those enumerated shall preAfter providing that claims which had accrued vent any claim from being disbarred." The six years before the passage of that Act shall court cannot superadd to those enumerated, a Lot be barred if the petition be filed in or trans- disability arising from the claimant's inability nitted to the court within three years after the to truthfully take the required oath. It has no passage of that Act, and after declaring that the more authority to engraft that disability upon claims of married women, first accrued during the Statute than a disability arising from sickmarriage, of persons under the age of twenty-ness, surprise or inevitable accident, which one years, and persons beyond the seas at the time the claim accrued, entitled to the claim, shall not be barred if the petition be filed in court or transmitted within three years after the disability has ceased, the Statute proceeds: "But no other disability than those enumerated shall prevent any claim from being barred, nor shall any of the said disabilities operate cumulatively." 12 Stat. at L., 767, sec. 10.

might prevent a claimant from suing within the time prescribed. Appellant's claim, if any he has or had, accrued, within the meaning of the Statute, when the Government came under a legal obligation to pay the amount thereof. In other words, it accrued against the Government, when, had the transaction recited in the petition occurred with a citizen, it would have accrued against that citizen. That the claimant The same Statute also provides that, in order was, at that time, or any time prior to Decemto authorize a judgment in favor of any citizen ber 25, 1868, unable by reason of his connection of the United States, it shall be set forth in the with the rebellion, a circumstance for which the petition that the claimant, and the original and United States was in nowise responsible, to comevery prior owner thereof, where the claim has ply with the terms upon which the Government been assigned, has at all times borne true alle- had consented to be sued in the Court of Claims, giance to the Government of the United States is his misfortune and cannot have the effect of and, whether a citizen or not, that he has not in enlarging the time fixed by the Statute of Limany way voluntarily aided, abetted or given en-itations. His remedy, if the claim be a valid couragement to the rebellion against the Government, which allegation may be traversed by the Government; and if on the trial such issue shall be decided against the claimant, his petition shall be dismissed. Id., 767. See 17 OTTO. U. S., Book 27.

one, is to apply to the Legislative Department of the Government. The courts cannot, in view of the language of the Statute, exclude from computation, on the issue of limitation, the time intervening between the accruing of 28

437

the claim in 1865 and the promulgation of the amnesty Proclamation.

The judgment must be affirmed. It is so ordered. True copy. Test:

James H. McKenney, Clerk, Sup. Court, U. S.

ATLANTIC WORKS, Appt.,

v.

EDWIN L. BRADY.

EDWIN L. BRADY, Appt.,

0.

ATLANTIC WORKS.

(See S. C., 17 Otto, 192–205.)

Letters patent-design and object of patent laws -priority of patents-appropriation of another's invention.

*1. Letters patent granted to Edwin L. Brady,

December 17, 1867, for an improved dredge-boat for excavating rivers, declared to be invalid for

want of novelty and invention.

2. The design of the patent laws is, to reward those who make some substantial discovery or invention, which adds to our knowledge and makes a step in ject to grant a monopoly for every trifling device, every shadow of a shade of an idea, which would naturally and spontaneously occur to any skilled mechanic or operator in the ordinary progress of manufactures.

advance in the useful arts. It was never their ob

3. Although a patent is not set up by way of defense in an answer, yet if the invention patented thereby is afterwards put into actual use, the date of the patent will be evidence of the date of the invention on a question of priority between different parties.

4. One person receiving from another a full and accurate description of a useful improvement, cannot appropriate it to himself; and a patent obtained by him therefor will be void. [Nos. 101, 102.]

Argued Jan. 17, 1883.

Decided Mar. 5, 1883.

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of the court:

This case arises upon a bill in equity filed by Edwin L. Brady against The Atlantic Works, a Corporation of Massachusetts, having workshops and a place of business in Boston, praying for an account of profits for building a dredge-boat in violation of certain letters patent granted to the complainant bearing date December 17, 1867, and for an injunction to restrain the defendants from making, using or selling any dredge-boat in violation of said letters patent. The bill was filed on the 9th of April, 1868, and had annexed thereto a copy of the patent alleged to be infringed. The following are the material parts of the specifica

tion :

"The excavator consists of a strong boat, propelled by one or two propellers placed in *Head notes by Mr. Justice BRADLEY.

the stern of the boat. I prefer two propellers, as affording greater power and rendering the boat more manageable in steering in crooked channels. This propeller is driven in the ordinary manner by steam-engines of ordinary construction. Near the bow of the boat I place another steam-engine, driving what I call the

mud fan,' which projects from and in front of the bow of the boat. This is formed by a set of revolving blades shown at A, turned like the propellers, by a shaft passing through a stuffing box, D. The blades are shaped somewhat like those of a propeller, but they are sharper on their fronts and less inclined on their faces. These blades should extend, say, two feet below the bottom of the boat, and their object is by their rapid revolution to displace the sand and mud on the bottom, and stirring them up, to mix them with the water so that they may be carried off by the current.

The motion of the mud fan' tends to draw forward the boat, assisting the propellers.

All the engines may be driven by one set of boilers, F, placed amidships. In order that the mud fan' may be brought in contact with the bottom, I construct the boat with a series of water-tight compartments, E, placed in the bow and stern, and on each side of the center, amidships, into which the water may be permitted to flow through pipes so as to sink the vessel to the required depth; the compartments being so placed and proportioned that the vessel shall sink with an even keel, by which the effective action of the mud fan,' the propellers and the steering apparatus is preserved, the boat being manageable at any depth. A large pump, B, all the compartments, so that the water may be driven by the engine, is connected by pipes with pumped out when necessary to raise the boat.

I am aware that boats have been constructed with compartments to be filled with water, to sink the dredging mechanism to the bottom, by loading the end of the boat in which such

mechanism is placed; but this construction is

subject to the disadvantage of requiring more that it may be accommodated to the inclination complicated machinery for dredging, in order of the boat, and to the further disadvantage that the boats thus inclined are comparatively unmanageable.

What I claim as my invention, and desire to secure by letters patent, is:

of water-tight compartments, so proportioned 1. A dredging-boat, constructed with a series the boat shall preserve an even keel, and the and arranged that, as they are filled with water, dredging mechanism be brought into action without any adjusting devices, substantially as set forth.

2. The combination of the mud fan' attached to a rigid shaft, and a boat containing a series of water-tight compartments, E, so adjusted as to cause the boat to settle on an even keel as the compartments are filled with water, and a pump, B, for exhausting the water from all the compartments, substantially as set forth.'

""

The defendants, in their answer, denied the validity of the patent, and denied infringement of any valid patent of the complainant. They then stated the circumstances under which they came to construct the dredge-boat complained of, namely: that in October, 1867, the Govern

The most important question, and first to be considered, is the validity of the patent.

ment of the United States advertised for pro- | of $6,604.82. Both parties excepted, but their posals for building a dredge-boat for the mouth exceptions were overruled, and a final decree, of the Mississippi River, according to certain in accordance with the report, was rendered plans and specifications; that the defendants, October 9, 1878, with costs. Both parties have being manufacturers and builders of marine en- appealed. gines and steamboats, examined the plans and specifications, and made proposals for building the boat according to the same; which were accepted; and they at once began the construction of the boat and completed it under the inspection and supervision of a United States officer, in conformity with the stipulations; and the boat went in charge of said officer to the mouth of the Mississippi River; that the said plans and specifications were made and furnished by General McAlester, of the engineer corps of the United States, for the use of the government and were the result of his own study, observations and experience, and that so far as they were original he was the author of them. They further alleged by their answer, as amended, as follows: "That the plans and specifications by which the said dredge-boat was constructed were not, and the said dredge-boat itself was not a new invention, or novel and original; but the same, and the principle of said dredge-boat, had been substantially known and publicly used before, to wit: at New Orleans, on the mouth of the Mississippi River, in the year 1859, in the steam dredge-boat Enoch Train, by Charles H. Hyde, by Thomas G. Mackie, and William A. Hyde, copartners, under the firm of Hyde & Mackie, and by Henry Wright; and had also been used and applied in the construction of light-draft monitors, so-called, built by the United States Government during the late rebellion, and long prior to the alleged patent or invention of the said Brady and the dates of his patent or caveat, and one of which said lightdraft monitors was built at the works of these defendants."

The answer further stated that in 1866 and 1867, prior to the date of Brady's alleged invention, he was acting as agent for one Tyler, in carrying out a contract with the government for the improvement of the mouth of the Mississippi River; that General McAlester was then stationed at New Orleans to supervise and inspect, on behalf of the United States, the execution of the contract; that Brady was fitting and preparing a steamboat for the purpose on a plan entirely different from that of his alleged invention; that McAlester then detailed and described to him a plan for a dredge-boat identical with that of the boat constructed by the defendants; which plan McAlester communicated to the board of engineers of the army before the date of the alleged invention by Brady; that Brady's boat was a failure, and the contract was annulled; that then Brady made drawings for a boat on the plan described to him by McAlester, and afterwards claimed to be the inventor of it, and made application for his patent, and obtained the same after the defendants had commenced work on the boat complained of.

Evidence was taken, and on a hearing before Mr. Justice Clifford, in September, 1876, a decree was made sustaining the patent, declaring that the defendants had infringed the same, and referring it to a master to take an account of the profits received by the defendants from the infringement. The master reported the sum

It is obvious from reading the specification that the alleged invention consists mainly in attaching a screw, which the patentee calls a mud fan, to the forward end of a propeller dredge-boat, provided with tanks for settling her in the water. It is operated by sinking the boat until the screw comes in contact with the mud or sand which, by the revolution of the screw, is thrown up and mingled with the current. The use of a series of tanks for the purpose of keeping the vessel level while she settles is an old contrivance long used in drydocks, and is shown, by the evidence, to have been used in many light-draft monitors during the late war. The defendants themselves built one of these vessels, The Casco. Mr. Edwards, the president of The Atlantic Works, in his testimony says: "The Casco was built double, leaving a water space on each side nearly the entire length of the vessel, with an arrangement of valves for flooding the compartments at pleasure, for the purpose of sinking the vessel to the desired draft of water, and with powerful steam pumps to pump the water out for the purpose of raising it in the water. The compartment on the side was divided into several, and one or all of them could be filled as desired. The object was to enable them to put her on an even keel, or to raise or depress one end at pleasure. The employment of their screws by propeller ships, driven stern foremost, for the removal of sand and mud accumulated at the mouths of the Mississippi, had frequently occurred years before the patentee's invention is alleged to have been made. Several French steamers, one of which was named The Francis Arago, had used this method there prior to the year 1859. In that year The Enoch Train, a double propeller, that is, having two screws at her stern, was used in the same way by certain contractors, under the government, for dredging the mouth of the Mississippi. Mr. Hyde, one of the contractors and owners, in his testimony describes her construction and operation as follows:

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She was a propeller of burden between three and four hundred tons, with two propeller screws at her stern, about nine feet in diameter each; the cylinders were thirty-six inches in diameter and thirty-four inches stroke; she had one doctor engine; was fitted also with a large wrecking pump, with two low-pressure boilers; engines were also low-pressure engines. Her draft of water, in ordinary trim, with three hundred barrels of coal on board, was about thirteen feet aft, and a little less at the bows. By ordinary trim, I mean the usual sailing trim. The propeller screws were one on each quarter, or each side of the stern post. Before going to dredging on the bar, I fitted her up with a water-tight apartment or tank, at the stern, by a bulkhead running athwart ships; say about twenty or twenty-five feet from the stern. That space was divided by a fore and aft bulkhead, making two water-tight compartments. The mode of filling the compartments was

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