during the years 1879, 1880, and 1881, made settlements of their official accounts, as required by law, with the said county court, and the said treasurer exhibited to the said court, and filed with the clerk of said court, all the county warrants so received by the said collector, and by him delivered to the said treasurer, and the said county court accepted and approved the settlements. of the said collector and the said treasurer, and approved the acts of the said collector in receiving warrants in payment of taxes, as aforesaid, and ratified and confirmed the release and discharge of said tax-payers from payment of their taxes, as aforesaid, so that the same cannot again be demanded of them."

To this petition there was a demurrer, which being sustained by the circuit court, judgment was rendered for the defendants. The assignments of error relate to this action of the court in sustaining the demurrer.

We are of opinion that the action of the court was right. While there are other reasons, perhaps, why this petition is insufficient to sustain the action, the two principal ones are-First, that the actual plaintiff, Harshman, for whose use this action was brought, shows no relation of contract or legal obligation between Winterbottom and himself on which he has a right to bring this suit; second, that the obligation of the defendants is to the state for the collection of the state taxes, and to the county for the collection of the county taxes. There are no state taxes in the case. The county taxes were collected and paid over to the county treasury in the class of current obligations of the county, which the law recognizes as valid payment of taxes; and the county court, to whom the obligation of accounting for the taxes collected, or for failure to collect taxes, was due, has settled with Winterbottom, and accepted its own warrants issued upon the treasurer as a full and satisfactory payment and discharge of that obligation. This formal accounting and settlement between the county court and the defendant, Winterbottom, as set out by the plaintiff himself in his own declaration, is one which the county court undoubtedly had a right to make, and, in paying over these county warrants to the treasury of the county, and in receiving the acknowledgment of the county court that he was fully discharged from his obligations in that respect, he presents a defense to this action which nothing in the declaration removes or invalidates. He had a right to receive county warrants in payment of taxes. The law in express terms declares it to be his duty to receive them. Whether they were received by him under the exact circumstances which the law directs as to original ownership or assignment to the party who presented them, were inatters for which he might have been called to account by the county court, and that body, in making the settlement with him, might possibly have had the power to reject warrants so received in making up the account; but inasmuch as they were actual obligations of the county, payable out of the county funds, and receivable in discharge of taxes if properly tendered, the county court, which, by law, has full charge of all the financial operations of the county, could waive any such irregularity in the time and mode of presenting their own obligations, and credit the collector with them in the account.

We are of opinion that this settlement with the county court is of itself a sufficient bar to the present action on the collector's bond. If this were not so, and if, as the plaintiff's counsel contends, the payment of these taxes by the county warrants thus irregularly presented is void, then the tax-payer himself is not discharged. He had no more right to tender the county warrants in payment of his taxes, under the circumstances mentioned in the petition, than the collector had to receive them. If the act is a void act as to the one, it is a void act as to the other; and the right of the plaintiff to sue the tax-payer is much clearer than his right to sue the collector, because the tax-payer owes his taxes yet, having never lawfully paid them, while the collector has settled his accounts with the authority which had a right to ac

cept these county warrants and has been discharged from further obligation. If he can sue the collector on his official bond, and the sureties who are bound with him on that bond, why can he not sue the tax-payers? The obligation to pay taxes, and the obligation to pay the taxes when collected into the treasury, is the same, and bears exactly the same relation to the right of Harshman to get his money out of the county treasury.

The truth is there is no contract or legal obligation of the collector in that matter to Harshman. Harshman is a creditor of the county of Knox. He has no more right to interfere between that county and its collector as to the manner in which that official shall discharge his duties, except perhaps in case of fraud or conspiracy, or by way of mandamus, than he would have as a creditor of any indvidual to interfere between him and his debtors. Where such things are permitted at all, it is by way of a garnishee process or attachment, which is regulated by statute, or by a bill in chancery. The proceeding here has nothing of that character. The want of privity between Harshman and the obligors in the bond on which they are sued is established by the decision of this court in Bank v. Ward, 100 U. S. 202. It does not appear that if all the taxes had been paid in money which the plaintiff alleges were erroneously paid in warrants, that when that money was paid into the treasury, the relator would have been entitled to any of it. The discretion of the county court, and indeed its obligation to provide for the current necessities of the county, could not be interfered with by any one to direct the payment of this money to that particular debt. We do not see, therefore, that he was damaged, certainly not damaged in a manner which the law can recognize, by the collection of these taxes in warrants instead of money. East St. Louis v. Zebley, 110 U. S. 321, 4 Sup. Ct. Rep. 21; Clay Co. v. McAleer, 115 U. S. 616, 6 Sup. Ct. Rep. 199.

The judgment of the circuit court for the Eastern district of Missouri is affirmed.

THE DRIVEN-WELL CASES.1 ANDREWS and others v. HOVEY. (November 14, 1887.)

PATENTS FOR INVENTIONS-PUBLIC USE-CONSENT OF PATENTEE.

Action was brought for the infringement of reissued letters patent No. 4,372, granted to Nelson W. Green, May, 1871, for an "improvement in the methods of constructing artesian wells;" the original patent having been issued in January, 1868. The plaintiffs concede defendant's allegation that other persons than Green put the invention into public use more than two years before his application was filed, but it is contended that this was done without his knowledge, consent, or allowance. Held, that the act of congress of March 3, 1839, 27, in force at the time of the issue of the original patent, did not require that the public use or sale for more than two years prior to the application shall have been with the consent or allowance of the patentee, in order to invalidate the patent.

Appeal from the Circuit Court of the United States for the Southern District of Iowa.

J. C. Clayton and A. Q. Keasbey, for appellants. Jed Lake, for appellee.

BLATCHFORD, J. This is a suit in equity brought by the appellants for the infringement of reissued letters patent No. 4,372, granted to Nelson W. Green, one of the appellants, May 9, 1871, for an "improvement in the methods of constructing artesian wells;" the original patent, No. 73,425, having been granted to said Green, as inventor, January 14, 1868, on an application filed March 17, 1866.

This patent was before this court in the cases of Eames v. Andrews, 122 U. S. 40, 7 Sup. Ct. Rep. 1073, and Beedle v. Bennett, 122 U. S. 71, 7 Sup. Ct.

Affirming 16 Fed. Rep. 387.

Rep. 1090, (at October term, 1886.) In those cases, this court sustained the validity of the reissued patent, and affirmed the decrees of the circuit courts. In the present case, the decree of the circuit court was against the validity of the patent, and the bill was dismissed. 5 McCrary, 181, 16 Fed. Rep. 387. From that decree the plaintiffs have appealed.

The patent is familiarly known as the "Driven Well" patent. The specifications and drawings of the original and reissued patents are set forth in the opinion of this court in Eames v. Andrews. Numerous defenses are set up in the answer in the present case, and voluminous proofs have been taken in respect to those defenses; but it is necessary to consider only one of them, which, in our view, is fatal to the validity of the patent, and that is that the invention was used in public at Cortland, in the state of New York, by others than Green, more than two years before the application for the patent. The brief of the appellants concedes that it is shown in this case that other persons than Green put the invention into public use more than two years before his application was filed. It is contended for the appellants that this was done without his knowledge, consent, or allowance. The appellee contends that such knowledge, consent, or allowance was not necessary in order to invalidate the patent, while the appellants contend that it was necessary. The whole question depends upon the proper construction of section 7 of the act of March 3, 1839, (5 St. 354,) interpreted in connection with sections 6, 7, and 15 of the act of July 4, 1836, (5 St. 119, 123.)

A list of the various cases decided in the circuit courts, brought on the reissued "driven well" patent, is given in the case of Eames v. Andrews, at page 47. In none of those cases except the present one, and those heard at the same time with it, did the question thus presented arise. In Andrews v. Carman, 13 Blatchf. 307, 324, the question involved and considered by the court was that of a dedication and abandonment to the public of his invention by Green prior to his application, founded upon acts done by him. The conclusion of the court was that there was no evidence of any use or sale of the invention by Green prior to his application for a patent, nor any direct proof of knowledge on his part of any use or sale of the invention by others within. two years prior to his application, nor sufficient evidence from which to properly infer that he had such knowledge. The question of the use of his invention by others, more than two years prior to his application, does not appear to have been raised. Nor was it raised in Andrews v. Cross, 19 Blatchf. 294, 8 Fed. Rep. 269. One of the defenses set up in the answer in that case was "that the claim of Green as inventor was barred, because the improvement was in use more than two years prior to the granting of his patent," and, as was said in the opinion in that case, there was "no allegation that the invention was in public use in the United States for more than two years before Green applied for his original patent, or that any use was with his consent or allowance, or that he abandoned the invention to the public in fact, or otherwise than inferentially from the fact alleged, that it was in use for more than two years before his original patent was granted." The conclusion of the circuit court in Andrews v. Cross was that no abandonment or dedication of the invention to the public by Green was shown; and that there was no evidence of any use or sale of the invention by Green before his application, and no sufficient evidence from which to conclude that any use of any driven well by others before his application was consented to or allowed by him. The use by others thus referred to was, as in Andreus v. Carman, a use within two years prior to the application.

The point was not presented in Eames v. Andrews or in Beedle v. Bennett, and in the opinion in the latter case it was said, (page 77:) "There is no evidence in the record of any use or sale of the invention by Green before his application for a patent, and no evidence from which to conclude that any use of any driven well by others before his application was consented to or allowed

by him, except in the instances mentioned at Cortland, which were merely experimental tests, made by himself. Much less is there any evidence to show that there was any use of the invention by others for more than two years prior to his application."

The question involved has never been decided by this court. In Egbert v. Lippmann, 104 U. S. 333, 334, it was said: "Since the passage of the act of 1839 it has been strenuously contended that the public use of an invention for more than two years before such application, even without his" (the inventor's) "consent and allowance, renders the letters patent therefor void. It is unnecessary in this case to decide this question, for the alleged use of the invention covered by the letters patent to Barnes is conceded to have been with his express consent." In that case, the circuit court had, in Egbert v. Lippmann, 15 Blatchf. 295, held that the effect of the act of 1839 was to require that the inventor should not permit his invention to be used in public at a period earlier than two years prior to his application for a patent, under the penalty of having his patent rendered void by such use; and that consent and allowance by the inventor were not necessary to such invalidity. The circuit court said that the policy introduced by the act of 1839, and continued by sections 24 and 61 of the act of July 8, 1870, (16 St. 201, 208,) now sections 4886 and 4920, Rev. St., was "that the inventor must apply for his patent within two years after his invention is in such a condition that he can apply for a patent for it; and that if he does not apply within such time, but applies after the expiration of such time, and obtains a patent, and it appears that his invention was in public use at a time more than two years earlier than the date of his application, his patent will be void, even though such public use was without his knowledge, consent, or allowance, and even though he was in in fact the original and first inventor of the thing patented and so in public use." The circuit court, in that case, appears to have decided the question on the view that the defense set up in the answer was that the invention had been known and in use in the United States more than two years before the application, and that there was no issue as to whether the public use for more than two years was with the consent or allowance of the patentee; but this court decided the case on the question of the consent of the patentee to the use for more than two years before the application.

The original patent in the present case, having been applied for and issued prior to the passage of the act of 1870, is to be governed by the provisions of the acts of 1836 and 1839. Section 6 of the act of 1836 provided for the issuing of a patent to an inventor for an invention not known or used by others before his discovery or invention thereof, "and not, at the time of his application for a patent, in public use or on sale, with his consent or allowance, as the inventor or discoverer." Section 7 of the same act provided for the issuing of a patent if, on examination, it should not appear to the commissioner that the invention had been made by any other person in this country prior to its being made by the applicant, or that it had been patented or described in any printed publication in this or any foreign country, "or had been in public use or on sale, with the applicant's consent or allowance, prior to the application." Section 15 of the same act provided that the defendant, in an action for the infringement of a patent, might show, among other things, that the thing patented "had been in public use or on sale, with the consent and allowance of the patentee, before his application for a patent;" and that, if that was shown, judgment should be rendered for the defendant.

The seventh section of the act of 1839 was in these words: "That every person or corporation who has or shall have purchased or constructed any newly-invented machine, manufacture, or composition of matter, prior to the application of the inventor or discoverer for a patent, shall be held to possess the right to use, and vend to others to be used, the specific machine, manufacture, or composition of matter so made or purchased, without liability there

for to the inventor, or any other person interested in said invention; and no patent shall be held to be invalid by reason of such purchase, sale, or use prior to the application for a patent as aforesaid, except on proof of abandoninent of such invention to the public; or that such purchase, sale, or prior use has been for more than two years prior to such application for a patent."

The act of July 8, 1870, repealed the act of 1839, but provided (section 111) that such repeal should not affect, impair, or take away any right existing under the act of 1839. Section 24 of the act of 1870, now embodied in section 4886, Rev. St., was in these words: "That any person who has invented or discovered any new and useful art, machine, manufacture, or composition of matter, or any new and useful improvement thereof, not known or used by others in this country, and not patented, or described in any printed publication, in this or any foreign country, before his invention or discovery thereof, and not in public use or on sale for more than two years prior to his application, unless the same is proved to have been abandoned, may, upon payment of the duty required by law, and other due proceedings had, obtain a patent therefor." Section 37 of the act of 1870, now embodied in section 4899, Rev. St., provided as follows: "That every person who may have purchased of the inventor, or, with his knowledge and consent, may have constructed, any newly invented or discovered machine, or other patentable article, prior to the application by the inventor or discoverer for a patent, or sold or used one so constructed, shall have the right to use, and vend to others to be used, the specific thing so made or purchased, without liability therefor." In section 61 of the act of 1870 it was enacted that, in any action for infringement, the defendant might prove on the trial, as a defense, among other things, that the thing patented "had been in public use or on sale in this country for more than two years before his application for a patent, or had been abandoned to the public," and that, if such special matter alleged should be found for the defendant, judgment should be rendered for him. This provision is now found in section 4920, Rev. St.

It is very plain that under the act of 1836, if the thing patented had been in public use or on sale, with the consent or allowance of the applicant, for any time, however short, prior to his application, the patent issued to him was invalid. Then came section 7 of the act of 1839, which was intended as an amelioration in favor of the inventor, in this respect, of the strict provisions of the act of 1836. The first clause of that section provides for the protection of a person who, prior to the application for the patent, purchases or constructs a specific machine or article, and declares that he may use and sell such specific machine or article after the patent is issued, without liability to the patentee. The section does not require, in order to this protection, that the purchase or construction shall have been with the consent or allowance of the person who afterwards obtains the patent, and seeks to enforce it against such purchaser or constructor. The words "consent or allowance" are not found in the provision. The only requirement is that the specific machine or article shall have been purchased or constructed at some time prior to the application for a patent. The second clause of the section then passes to consider the effect upon the validity of the patent "of such purchase, sale, or use prior to the application" for the patent, and declares that "no patent shall be held to be invalid by reason of such purchase, sale, or use prior to the application for a patent as aforesaid, except on proof of abandonment of such invention to the public, or that such purchase, sale, or prior use has been for more than two years prior to such application for a patent." The expression "such purchase" clearly means the purchase from any person, and not merely from the person who becomes the patentee of the machine or article. The expression "such sale or use" clearly refers to the use or sale by the person who has purchased or constructed the machine or article, the right to use and sell which is given to him by the first part of the section. That right is