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the state, to be held by him in escrow, or to an agent agreed on, until full compliance with the conditions of the agreement on which they were to issue, when the treasurer or agent was required to deliver them to the parties entitled to them. The officers of the municipal corporation were also required to make registration thereof, in a book kept for that purpose, and to certify a statement of the same to the auditor of the state; and, if within 30 days after their issue the holder of such bonds should present them to the auditor of state for registration, he was required, upon being satisfied that such bonds had been issued according to the act, and that the signa. tures thereto of the officers signing the same were genuine, to register the same in his office, in a book kept for that purpose, in the same manner that such bonds were required to be registered by the officers issuing the same, and, also, to certify upon such bonds the fact that they had been regularly and legally issued, that the signa. tures thereto were genuine, and that such bonds had been registered in his office according to law. The act also makes provision for the

. registration of bonds not issued under it, but issued either before its enactment or in pursuance of agreements entered into before it took effect. The fifteenth section is as follows:

"Sec. 15. That the holder of bonds heretofore issued, or that may hereafter be issued, in pursuance of any contract heretofore made under any law of this state, may have the benefits of this act by having such bonds registered in the office of said auditor of state as provided herein for the registration of bonds (issued) by virtue hereof. It shall be the duty of the auditor of state, upon the registration of any bonds not issued under the provisions of this act, within ten days thereafter, to notify the officers issuing the same of such registration, which fact shall be entered by such officers in a book wherein the record of such bonds is kept, and such bonds shall thereafter be considered registered bonds."

Under this section it is claimed that the bonds sued on were registered, having been issued prior to the passage of the registration act of 1872; and it is insisted, upon the authority of the case of Lewis v. Com’rs Barbour Co. 105 U. S. 739, that the registration is conclusive of their validity, as against the defense made in the answer. It is shown, however, by a comparison of the fifteenth section with the other sections of the act in reference to registration, that distinct and diverse provisions are made for different classes of bonds,—those issued under the act and those previously issued or agreed to be issued under prior acts. As to the former class, the bonds authorized are to be registered, in the first instance, according to the mandate of the twelfth section, by the officers of the municipality acting in that behalf, who are required to transmit to the auditor of state a certified statement of the number, amount, and character of the bonds so issued, to whom issued, and for what purpose, which statement is required to be attested by the clerk of the municipal corporation issuing the same under its corporate seal. The registration thus provided for consists of two parts,—that which is recorded by the officers of the corporation in their books, and that which the auditor records in his own,--and in that case the last step is taken by the auditor, who certifies it on the bonds themselves, presented by the holder for that purpose. This certificate is intended to be based not merely upon what the auditori himself has done, but upon the knowledge officially-certified to him? of what had previously been done by the officers of the municipal corporation issuing the bonds. But as to the other class of bonds, those not issued under the act of 1872, the order of the steps in reg. istration is reversed. The first record is made by the auditor on presentation of the bonds by the holder for that purpose. Within 10 days thereafter he is required by the fifteenth section of the act to notify the officers issuing the same of such registration by him, which fact, it is provided, shall be entered by such officers in a book wherein the record of such bonds is kept, and such bonds, the statute then proceeds to declare, shall thereafter be considered registered bonds. That necessarily means that they shall not be so considered until the happening of that event; and it is that complete and perfected registration, and that alone, which confers upon the holder of such bonds the benefits of the act.

The bonds that were in controversy in the case of Lewis v. Com'rs, supra, were issued under the act of 1872, and their registration was governed by the provisions of the statute relating to that class. The bonds on which the present suit is based were issued under the act of 1870, and belong to the class the registration of which is governed by the provisions of the fifteenth section of the act.

It is alleged in the petition that “each of said bonds, with all the interest coupons thereto attached, was duly registered in the office of the auditor of the state of Kansas, according to law, and the fact that each of the said bonds was so registered was then and there, under the hand and official seal of the said auditor, in writing, duly certified and indorsed upon each of the said bonds," and a copy of the certificate and indorsement is set out as already exhibited. But it is not alleged that the auditor notified the officers of Cherokee county of this record, nor that these officers entered the fact in the record kept by themselves; and without these additional steps, what was done by the auditor was incomplete and ineffective. Without showing complianco with these requisitions, the bonds cannot be considered registered bonds, nor entitled as such to the benefits of the act.

If complete and conclusive effect were, on the contrary, given*tco the ex parte record of the auditor of state, as is claimed for it, the obvious design and just purpose of the statute would be not secured, but subverted; and municipal corporations might be subjected to liability for bonds purporting to be issued by them, which in fact and in law were not their obligations by virtue of a proceeding of which they had no notice, resulting in an adjudication which they had no opportunity of contesting. A construction of the statute that necessarily leads to that conclusion is not warranted by its terms, and

would be repugnant to fundamental principles of common right. If the registration of bonds issued under the act itself is to have the force of an adjudication by the auditor, the preliminary record by the officers of the municipal corporation transmitted to him must be the indispensable foundation of his jurisdiction, without which he cannot lawfully act; and as to bonds issued, as were these now in suit under previous statutes, the action of the auditor is itself but the preliminary proceeding of which confirmation by the subsequent record of the officers issuing them is essential to its efficacy as a registration. If these officers refuse to recognize the registry of the auditor, whether rightfully or wrongfully, the holder loses no rights. He has the bonds as he acquired them, and may test the liability of the corporation by judicial proceedings. If, on the other hand, the statute is construed to allow him by a proceeding before the auditor conclusively to fix the liability of the municipal corporation without notice and without a hearing, certainly, in respect to bonds previously issued, it would be open to the gravest objections on constitutional grounds, for if a law cannot impair the obligation of a contract, neither can it create one, or by a mere fiat take from a party an existing and meritorious defense. It appears then, by the record in this cause, that the bonds sued on are not the obligations of the defendant in error.

The judgment in its favor is therefore affirmed.

*201

(110 U. S. 200)

ZANE and another, Ex'rs, etc., v. SOFFE.1

(January 21, 1884.)

LETTERS-PATENT-PRIOR USE-SELF-CLOSING FAUCET-CAMS AND SCREW-FOL

LOWERS.

Upon an issue involving the validity of a patent, evidence of prior public use, if admitted without objection, may be considered by the court upon the question of priority.

The patent granted to Nathaniel Jenkins, June 22, 1865, for an improved screw-follower in connection with the valve of a self-closing faucet, must be strictly confined to the exact mechanism described, and it is not infringed by a similar faucet in which the valve is moved by a cam arrangement instead of a screwfollower.

Appeal from the circuit court of the United States for the southern district of New York.

Thos. Wm. Clarke, for appellants.

Henry P. Wells, for appellee.

BRADLEY, J. This writ was brought by Zane and Roach, as assignees of one Nathaniel Jenkins, against the defendant, Soffe, for infringing

18. C. 2. Fed. kep. 229,

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(as charged) certain letters-patent granted to said Jenkins, June 22, 1865, for an improvement in self-acting cocks or faucets. The gen. eral feature of the invention patented, so far as material to be considered, may be described as follows: The valve is situated in a chamber below the valve-seat, where the water is introduced by the induction pipe and is kept in place against the valve-seat by a spiral spring underneath resting on the bottom of the chamber; on its upper side the valve is connected by a swivel with a stem which projects upward through the top of the faucet, where it is provided with a handle by which it may be turned; a screw is formed on the upper part of the stem by which, when the stem is turned by the hand, it is forced downward and pushes the valve from its seat, thus permitting the water to flow out of the cock; on letting the handle go, the spiral spring below the valve, aided by the pressure of the water, forces the valve back to its seat, and the flow of water is stopped. In the specification the stem is called a screw-follower. The patent has two claims, only the first of which is claimed to be infringed by the defendant, and this in the following words, to-wit: “What I claim as new and desire to secure by letters-patent is,*(1) the screw-follower, H, in combination with the valve of a self-closing faucet, substantially as set forth, and for the purpose described.”

The defendant answered the bill, denying that Jenkins was the first inventor of the thing patented, denying infringement, and setting up a patent granted to defendant himself on the tenth of May, 1874, under and according to which the faucets manufactured by him were made, and which he alleges are no infringement of the Jenkins patent. The answer specifically refers to only one patent as anticipating the supposed invention of Jenkins, namely, a patent granted to one Frederick H. Bartholomew, in August, 1846, in which (as alleged) all the essential elements of the faucet patented to Jenkins are described and exhibited. The answer, however, contains the following general averment:

“This defendant, further answering, denies that the patent granted said Nathaniel Jenkins is valid; and alleges that prior to the invention described in said patent, a screw and spring, worked in opposition to each other, had been used to open and close faucets and hydrants, in which faucets and hydrants the screw did all the work of opening the faucets and hydrants, and the spring did all or most of the work of closing the valve of the faucets and hydrants; that faucets and hydrants operated in the above manner had been in public and general use and for sale in the cities of New York and Brooklyn, and in various other places long prior to, and at least fifteen years before, the date of the alleged invention of Nathaniel Jenkins; and defendant is advised and believes that, by reason of said prior public use and sale, the patent granted to said Jenkins is invalid.”

This answer was not excepted to, and evidence was given by the defendant, without objection, showing that a large number of faucets and hydrants were made by Bartholomew, and publicly used in the city of New York, several years before the issuing of the patent sued on, differing in some respects from the specific device described in Bartholomew's patent, referred to in the answer, but relied on as anticipating the alleged-invention of Jenkins; or, at least, as containing all the essential elements of the faucets manufactured by the defendant. The court below held that this evidence was competent to show the state of the art at the time Jenkin's patent was granted, and might be used for the purpose of limiting its construction, but not for the purpose of showing such a previous knowledge and use of the invention as would affect the validity of the patent. But since the decision of this case in the circuit court, we have held, in Loom Co. v. Higgins, 105 U. S. 595, that under a general denial of the patentee's priority of invention, evidence of prior knowledge and use, taken without objection, is competent at the final hearing on the question of the validity of the patent. And, since in the present case there was neither an exception to the answer nor any objection to the evidence, except as to a single faucet marked Defendant's Exhibit No. 2, (which may be laid out of the case,) we think the remaining evidence of prior knowledge and use might well have been considered by the court on the question of priority as affecting the validity of the patent. Viewing the evidence, however, with the court below, only as demonstrative of the state of the art, and therefore competent to limit the construction of the patent to the precise form of parts and mechanism described and claimed therein, it was amply sufficient to sustain the decree.

Self-closing cocks and faucets were no new thing in June, 1865, when the patent of Jenkins was issued. Bartholomew had manufac- . tured and sold them for a period of 10 or 15 years before that time. As early as 1854 he had made and sold faucets in which the valve was kept on its seat by the pressure of a spiral spring, and when a flow of water was desired, the valve was lifted from its seat against the force of the spring by means of a stem, operated by a collar or cross-piece moving around on a fixed circular inclined plane or cam, having the same effect as a screw; when the handle, or tbumb-piece, attached to the collar was liberated or let go, the spiral spring would force the valve back to its seat, and the flow of water would be stopped.

The improvement of Jenkins, (or what was patented to him as such), as we have seen, was the employment of a screw on the upper part of the valve stem, in lieu of the circular cam or inclined plane, to force the valve from its seat. This valve stem, called by him the screw-follower, forced the valve not only against the pressure of the spring, but against that of the water, both of which were exerted in carrying the valve back to its seat as soon as the force operating upon the screw was removed. Now, in view of the fact that an inclined plane or cam was previously used by Bartholomew as a means of producing the same result upon the valve stem as that produced by the screw made upon it by Jenkins, it is clear that the claim of

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