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serve no useful purpose specially to notice in this opinion all the publications mentioned in the record; a few, as samples most relied on, will be considered.

The first is the extract from McKenzie's 5000 Receipts. It appears, from the file wrapper in the matter of the reissued letters-patent in suit, that the application was rejected at first by the examiner in the Patent Office on reference to this extract, which is as follows: "To raise water in all situations. The finest springs may be found by boring, which is performed in the simplest manner by the mere use of an iron rod forced into the earth by a windlass. The workmen in a few days get to a genuine spring of pure water, fit for every purpose. After the water is found, they merely put the tin pipes down the aperture, and it preserves a fine stream which sometimes rises from four to five feet high." It is quite obvious that this has no relation whatever to the process of obtaining water by means of driven wells. It is nothing more than a simple process of finding water in the usual way, as in the case of an ordinary dug or bored well, such as have been immemorially used.

The same observation equally applies to the extract from Rees' Cyclopædia, under the title of "Wells in Rural Economy," which is as follows: "The most ingenious of these is that proposed by a French philosopher, who has advised that the ground should be perforated to a sufficient depth by means of an auger or borer; a cylindrical wooden pipe being then placed in the hole and driven downward with a mallet, and the boring continued, that the pipe may be forced down to a greater depth, so as to reach the water or spring. In proportion as the borer becomes filled with earth it should be drawn up and cleared, when by adding fresh portions of pipe, the boring may be carried to much extent under ground, so that water may in most cases be thus reached and obtained. It is stated that wells made in this manner are superior to those constructed in the common method, not only in point of cheapness, but also by affording a more certain and abundant supply of water, while no accident can possibly happen to the workmen employed. In case the water near the surface should not

Opinion of the Court.

be of a good quality, the perforation may be continued to a still greater depth till a purer fluid can be procured; and when wells have become impure or tainted from any circumstance or accident, when previously emptied, and the bottom perforated in a similar manner, so as to reach the lower sheet of water, it will rise in the cylindrical tube in a pure state into the body of the pump fixed for the purpose of bringing it up."

The extract from "Brande's Encyclopædia," under the article "Well," is as follows: "The use of the borer alone may procure an adequate supply of water in particular situations. This mode appears to have been long resorted to in this and other countries. From what we have already stated as to the disposition of strata, the conditions requisite for its success will be readily conceived, viz., watery strata connected with others on a higher level. The pressure of the water contained in the higher parts of such strata on that in the lower will readily force up the latter through any orifice, however small. All that is necessary, therefore, is to bore down to the stratum containing the water, and, having completed the bore, to insert a pipe into the bore, which may either be left to overflow into a cistern or it may terminate in a pump."

A similar one from the Mechanics' Magazine, vol. 2, page 16, is this:

"Drive a cast-iron pipe through the gravel-i.e., by means of a weight hung at the end of spring pole, used in boring; and should the pipe meet with any loose stone to obstruct its passage, put the boring rods into the pipe, and bore until the stone is broken to pieces or driven sideways, then drive the pipe as before. I have had the management of a great many bore holes for water in this neighborhood, some above 100 yards deep, and many contrivances I have used on account of difficulties met with in different strata. I shall be happy to give your correspondent every information in my power on the subject, and, if agreeable to you, will send a list of a few

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holes, stating the different strata gone through and the sev eral springs of water met with.

"Yours, &c.,

T. T.

"N. B. The shell-borer must be used at times to bring out the gravel that gets into the pipe, and the pipe must have spigot and faucet joints."

There is nothing in these extracts to suggest the peculiarities which distinguish the driven well as described in the reissued patent, and it may be said, in general, of all the extracts contained in the record, including these, that, so far as they undertake to describe anything in actual and practical use, they point merely to the ordinary bored artesian well, or the instruments and implements to be used in its construction.

This view of these publications is strongly corroborated by the circumstances attending the introduction of Green's process of driven wells into public use in England. It is shown that his agent for the introduction of the well into that country, and to whom the invention was sold, James L. Norton, took out in his own name an English patent, and, as has already been stated, and as is shown in the proof, after various experimental tests made by civil and military engineers of high authority, the driven well according to this process was adopted and successfully employed for the purpose of obtaining a water supply for the British troops in the Abyssinian expedition. The present record contains extracts from standard scientific publications in England showing how extensively and successfully the driven well has, since its first introduction, been employed in England for the purpose of raising water, in which it is admitted, as the facts show, that the process was considered new, differing in substance from any previously known and in use, and ascribed to the American invention.

The next defence relied upon by the appellant is, that the evidence fails to establish a case of infringement. It is not important to set out fully the evidence on this point; the substance of it is contained in the opinion of Judge Shipman

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in this case, 15 Fed. Rep. 109. In reference to it the court says: "The defendant's counsel strenuously urge that these wells were constructed by boring; that the wells were bored until water was struck - that is, until a supply of water was obtained; and that the wells were finished by pressing the pipes more deeply into the source of supply which had been reached when the workmen struck water.' In other words, the defendant seeks to bring the case within the decision of Judge McCrary in Andrews v. Long, 12 Fed. Rep. 871. In this case, however, the witnesses, when they used the common expression struck water,' did not mean that they had reached an adequate source of supply for a well, but that they had reached a place where the presence of water manifested itself, and where by continuous excavation an adequate supply would be attained. The wet sand or wet clay upon the auger showed that water was at hand. The well was then finished, and a supply of water was obtained by pressing or driving a tube into the ground, without removing the earth upward, and attaching thereto a pump. When this was done, there was put to practical use the new principle of forcing the water in the water-bearing strata of the earth from the earth into a well pit, by the use of artificial power applied to create a vacuum in the water-bearing strata of the earth, and at the same time in the well pit. Andrews v. Cross, 8 Fed. Rep. 269.'"

In other words, the case of the appellant is this: He sought to evade the patent by boring instead of driving until he came to the water-bearing stratum. Then, in order to avail himself of the patent, he drove the tube downward into the water-bearing stratum, so as to secure those conditions of an air-tight connection between the point of the tube and the surrounding earth, which constitute the principle of the drivenwell patent. It is, therefore, a clear case of infringement.

The decree of the Circuit Court is accordingly affirmed.

MR. JUSTICE FIELD, MR. JUSTICE BRADLEY, and MR. JUSTICE GRAY dissented.

Statement of the Case.

BEEDLE v. BENNETT.

APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF OHIO.

Submitted January 7, 1887. Decided May 23, 1887.

If a bill in equity to restrain an infringement of letters-patent be filed before the expiration of the patent, the jurisdiction of the Circuit Court is not defeated by the expiration of the patent by lapse of time before the final decree.

The case of Eames v. Andrews, just decided, is applied to the issues in this case, so far as they are identical with those in that case. The use of this invention by the inventor in the manner stated in the opinion of the court, and his delay in applying for a patent under the circumstances therein detailed for more than two years prior to his application, did not constitute an abandonment of his invention, or a dedication of it to the public, and did not forfeit his right to a patent under the law, as it stood at the time of his application.

The use by the respondents of driven wells for their personal use on their farms, which wells were operated by means of the process patented to Green, constituted an infringement of that patent.

BILL in equity to restrain infringements of letters-patent. The patent expired by its own limitation after the filing of the bill, and before final decree. The final decree and allowance of appeal were as follows:

"This cause coming on to be heard upon the pleadings in agreed statement of facts and arguments of counsel, the court finds the reissued letters-patent sued on valid, and to have been infringed by defendant, and that the complainants have an established license fee of $10 per well driven by the process described and claimed in the patent, for which said sum, and interest from the 15th day of May, 1883, the date of filing the bill herein, the complainants are entitled to a decree which, to the first day of this term, amounts to $12.03.

"The patent having expired, it is ordered, adjudged, and decreed that the court [complainants] do recover the sum of $12.03 per well driven in accordance with said patent, with interest from the 5th day of October, 1886, and his costs, to be taxed.