Opinion of the Court.

individuals who had acquired such specific articles, had been for more than two years prior to the application for the patent; that in this respect alone were the provisions of the act of 1836 intended to be modified; and that a defendant, in order to show the invalidity of a patent, under § 7 of the act of 1839, must show that he claims exemption from liability to the patentee because he purchased or constructed a specific article covered by the patent prior to the application therefor, and must show that the invention was abandoned or that the purchase, sale, or prior use, or construction of the specific article occurred more than two years before the application for the patent, and with the consent and allowance of the inventor.

But our views in regard to the proper construction of the 7th section do not admit the soundness of this contention, and were fully set forth in the former opinion.

It is proper to notice the suggestion, that there is no declaration in the 7th section of the act of 1839, that either in the case of an abandonment of the invention, or of the existence, for more than two years prior to the application, of the purchase, sale, or prior use referred to in the second clause of the section, the patent shall be held to be invalid; and the further suggestion, that there is only a hypothetical implication that the patent shall be invalid in the excepted cases. But we cannot so interpret the statute. Under $$ 6, 7, and 15 of the act of 1836, a patent was made invalid if, at the time of the application therefor, the invention had been in public use or on sale, with the consent or allowance of the patentee, however short the time. The second clause of the 7th section seems to us to clearly intend, that, where the purchase, sale, or prior use referred to in it has been for more than two years prior to the application, the patent shall be held to be invalid, without regard to the consent or allowance of the inventor. Otherwise the statute cannot be given its full effect and meaning.

The result of these views is that

The application for a rehearing is denied.

Opinion of the Court.

ANDREWS v. CONE. Appeal from the Circuit Court of the United States for the District of Minnesota. MR. JUSTICE BLATCHFORD delivered the opinion of the court. This is an appeal by the plaintiffs in a suit in equity in the Circuit Court of the United States for the District of Minnesota, from a decree dismissing the bill. The suit was brought for the infringement of the "driven well" patent which was the subject of the decision of this court in Andrews v. Hovey, 123 U. S. 267, and in which case an application for a rehearing has just been denied. The decree below in Andrews v. Hovey dismissed the bill, and this court affirmed it, holding the patent to have been invalid. In the present case there is a written stipulation, filed in this court, signed by the counsel of record here, that this case shall abide the result of the case of Andrews v. Hovey, in this court, and that the decree and mandate herein shall be the same as the decree and mandate in that case, except that no costs shall be taxed or awarded, or disbursements or officers' fees allowed or awarded, in this case, in favor of or against either party hereto, and that each party shall pay his own costs and disbursements. In accordance with such stipulation,

The decree of the Circuit Court is affirmed, subject to the above recited provisions of the stipulation.

Mr. George F. Edmunds and Mr. J. C. Clayton for appellants. Mr. Thomas Wilson for appellee.

APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF MASSACHUSETTS.

Argued January 9, 10, 11, 1888.- Decided February 20, 1888.

No attachment can issue from a Circuit Court of the United States, in an action against a national bank before final judgment in the cause; and if such an attachment is made on mesne process and is then dissolved by means of a bond with sureties conditioned to pay to plaintiff the judgment which he may recover, given in accordance with provisions of the law of the State in which the action is brought, the bond is void, and the sureties are under no liability to plaintiff.

The assets of a national bank having been illegally seized under a writ of attachment on mesne process, and a bond with sureties having been given to dissolve the attachment, which bond was invalid by reason of the illegality of the attachment, and the sureties having received into their possession assets of the bank to indemnify them against loss, and the bank having passed into the hands of a receiver appointed by the comptroller of the currency, a bill in equity may be maintained by the receiver to discharge the sureties and to compel them to transfer their collateral to him.

THE Court stated the case as follows:

All of these cases involved the same general question, and they may properly be considered and decided together. From the records it appeared that the Pacific National Bank of Boston was an association for carrying on the business of banking, organized under the national bank act. On the 20th of November, 1881, it became embarrassed, and was placed in charge of a bank examiner, in whose control it remained until March 18, 1882, when its doors were opened for business with the consent of the comptroller of the currency.

VOL. CXXIV-46

Statement of the Case.

By statute, in Massachusetts civil actions are begun by original writ, which "may be framed either to attach the goods or estate of the defendant, and, for want thereof, to take his body; or it may be an original summons, with or without an order to attach the goods or estate."

may be attached

Mass. Pub. Stat. 1882, c. 161, §§ 13, 14. "All real and personal estate liable to be taken on execution upon the original writ in any action in which debt or damages are recoverable, and may be held as security to satisfy such judgment as the plaintiff may recover." § 38. “A person or corporation whose goods or estate are attached on mesne process in a civil action may, at any time before final judgment, dissolve such attachment by giving bond with sufficient sureties, with condition to pay to the plaintiff the amount, if any, that he may recover within thirty days after the final judgment in such action." § 122.

At the time the bank resumed business, it was indebted to George Mixter in the sum of $15,000; to Henry M. Whitney also in the sum of $15,000; to Daniel L. Demmon in the sum of $25,000; and to Calvin B. Prescott in the sum of $5000.

On the 24th of March, 1881, Mixter and Prescott each began a suit against the bank in the Circuit Court of the United States for the District of Massachusetts, by writ directing an attachment to recover the amounts due them respectively. Demmon also began a suit in the same court and in the same way on the 28th of March, to recover the amount due him, and Whitney another on the 28th of April, upon the claim in his favor. At the time these suits were begun, the bank had money on deposit to its credit in the Maverick National Bank and in the Howard National Bank, and the necessary steps were taken to subject these deposits to the attachments which were issued in the several suits.

The bank arranged with Lewis Coleman and John Shepard to become its sureties upon bonds to dissolve attachments in any actions that might be brought against it, and placed in their hands a certificate of deposit in the Maverick National Bank for $100,000, to be held as their protection against all liabilities which should be thus incurred. This certificate was

Statement of the Case.

afterwards exchanged for $121,000 of the bonds of the Nantasket Company, $20,000 of the bonds of the Toledo, Delphos and Burlington Railroad Company, and $15,000 of the bonds of the Lebanon Springs Railroad Company.

Immediately after each of the attachments in the above actions had been made, the bank executed a bond to the plaintiff in a penal sum suited to the amount of the claim, with Coleman and Shepard as its sureties, reciting the attachment, and that the bank "desires to dissolve said attachment according to law," and conditioned to be void "if the Pacific National Bank of Boston shall, within thirty days after the final judgment in the aforesaid action, pay to the plaintiff therein named the amount, if any, which he shall recover in such action." Upon the execution of the bond in each case, the attachment was dissolved.

After this the bank closed its doors a second time, and on the 22d of May, 1882, a receiver was appointed by the comptroller of the currency in accordance with the provisions of 5234 of the Revised Statutes, and at once took possession of its assets and proceeded to wind up its affairs.

When the receiver was appointed he found the several suits which had been commenced still pending. In the cases of Mixter, Whitney, and Demmon he appeared, answered for the bank, filed motions to discharge the attachments, and motions to dismiss the suits. His motions were all overruled, and, his defences not being sustained, judgments were rendered against the bank in each of the cases for the amounts found to be due the several plaintiffs respectively. For the review of the action of the court in these cases the writs of error which are now under consideration were brought.

The suit of Prescott still remains undisposed of in the Circuit Court.

Failing in his motions and in his defences at law, the receiver filed a bill in equity in the Circuit Court against the several attaching creditors, and the sureties on the bonds given to dissolve the attachments, the object of which was to reduce to his possession the securities which were held by the sureties for their protection against liability, and to restrain the several attaching