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priated by the New Madrid certificates, were at that time occupied and improved by actual settlers, and were consequently not subject to pre-emption; that said Beebe never procured the consent of said settlers to the location of said pre-emption floats, and the issue of said patents, as required and provided by the said pre-emption acts and the regulations of the general land-office, but, on the contrary, imposed upon the officers of the land department, and induced them to believe that he had complied with the law and the regulations in every respect, when in fact his every act in procuring said patents was done in violation of law, and was part of a conspiracy to defraud the United States and the holders under said New Madrid locations, and that, in furtherance of said conspiracy, said Beebe entered into a so-called bond to convey to the original holders and claimants of said lands the title which he was to and did acquire by the issue of said patents on said float claims, which he afterwards fraudulently failed and refused to do, all of which was a fraud on the United States, and other claimants to and settlers upon said lands; that all defects of the said New Madrid act, and of the locations thereunder, have been cured by subsequent acts of congress and the opinions of the attorney general, and decisions of the department, and by decisions of the supreme court of the United States construing the same, and that said locations of said floats and the issuance of said Beebe patents were allowed under a misconception of the law, procured by undue means and in violation of the law, and the same are null and void, and ought in equity and good conscience to be canceled. The defenses relied on in the court below, by way of demurrers and pleas, were (1) the want of authority in the attorney general to file a bill for the annulment of a patent in a case like the present; (2) that the claim is barred by the statute of limitations; (3) that the claim sued upon is stale; (4) that the plaintiff has no equity to maintain this suit; and that all this appears upon the face of the bill itself. The demurrer to the bill was sustained, and the bill aismissed, from which decree of dismissal an appeal on behalf of the United States brings this case here.

H. M. Baker, for appellant. U. M. Rose and S. W. Williams, for appellees.

Mr. Justice LAMAR, after stating the facts as above, delivered the opinion of the court.

The points involved in the pleadings and made before the court below have been presented and urged with much earnestness, both in the brief and in the oral argument of counsel.

1. As to the right of the attorney-general to bring this suit. The authority of the attorney general, under the constitution and laws of the United States, to institute a suit in the name of the United States to set aside a patent alleged to have been obtained by fraud or other mistake, whenever denied by a specific pleading before this court, has been uniformily maintained. And it may now be accepted as settled that the United States can properly proceed by bill in equity to have a judicial decree of nullity and an order of cancellation of a patent issued in mistake, or obtained by fraud, where the government has a direct interest, or is under an obligation respecting the relief invoked. See the opinion of the court delivered by Mr. Justice MILLER in U. S. v. San Jacinto Tin Co., ante, 850, (decided this term of the court.) Even if it had not been thus authoritatively settled, it would have been difficult, upon principle, to reach any other conclusion. The public domain is held by the government as part of its trust. The government is charged with the duty, and clothed with the power, to protect it from trespass and unlawful appropriation, and, under certain circumstances, to invest the individual citizen with the sole possession of the title which had till then been common to all the people as the beneficiaries of the trust. If a patent is wrongfully issued to one individual which should have been issued to another, or if two patents for the same land have been

issued to two different individuals, it may properly be left to the individuals to settle, by personal litigation, the question of right in which they alone are interested. But if it should come to the knowledge of the government that a patent has been fraudulently obtained, and that such fraudulent patent, if allowed to stand, would work prejudice to the interests or rights of the United States, or would prevent the government from fulfilling an obligation incurred by it, either to the public or to an individual, which personal litigation could not remedy, there would be an occasion which would make it the duty of the government to institute judicial proceedings to vacate such patent. In the case before us the bill avers that the patents whose cancellation is asked for were obtained by fraud and imposition on the part of the patentee, Beebe. It asserts that there exists, on the part of the United States, an obligation to issue patents to the rightful owners of the lands described in the bill; that they cannot perform this obligation until these fraudulent patents are annulled; and that they, therefore, bring this suit to annul these fraudulent instruments, whose existence renders the United States incapable of fulfilling their said prior obligation. The court below held that the bill in this case having been filed on the recommendation of the secretary of the interior, for the declared purpose of having the questions which were being pressed upon the land department, in connection with the claims of the Philbrook heirs against the government, determined by the judicial department, which claims were unsettled and important, the appeal to the court was proper. In this we think the learned judge is in full accord with the principle laid down by Mr. Justice MILLER in the San Jacinto Tin Co. Case, and within the following language of the court in Hughes v. U. S., 4 Wall. 236, which was a suit brought in the name of the United States to set aside a patent for the benefit of a private citizen entitled to the land covered by said patent. Mr. Justice FIELD, who delivered the opinion of the court, speaking of the patent to Hughes, said: "Whether regarded in that aspect, or as a void instrument, issued without authority, it prima facie passed the title, and therefore it was the plain duty of the United States to seek to vacate and annul the instrument, to the end that their previous engagement be fulfilled by the transfer of a clear title, the one intended for the purchaser by the act of congress." Unless, therefore, it appears on the face of the bill that the claim set up has no equity, or that there are valid defenses to the suit, the jurisdiction of the court to entertain it cannot be denied.

Next, as to the defense of the statute of limitations, laches, and lapse of time. The grounds on which the court below sustained the demurrer were (1) that distinct from and independent of the statute of limitations, and the laches of the public officers of the government, the lapse of time constitutes a good defense to this suit, upon those principles of equity which would be administered as between two citizens litigating in this tribunal; and (2) that the United States is bound by the same law. The counsel for the complainant maintain that this conclusion, upon which the decree of dismissal rests, is erroneous, and contrary to the decisions of this court, and of every circuit and district court in the United States. The principle that the United States are not bound by any statute of limitations, nor barred by any laches of their officers, however gross, in a suit brought by them as a sovereign government to enforce a public right, or to assert a public interest, is established past all controversy or doubt. U. S. v. Railway Co., 118 U. S. 125, 6 Sup. Ct. Rep. 1006, and cases there cited. But this case stands upon a different footing, and presents a different question. The question is, are these defenses available to the defendant in a case where the government, although a nominal complainant party, has no real interest in the litigation, but has allowed its name to be used therein for the sole benefit of a private person?

It has been not unusual for this court, for the purposes of justice, to determine the real parties to a suit by reference, not merely to the names in which

it is brought, but to the facts of the case as they appear on the record. Thus, in the case decided at this term, (In re Ayers, 123 U.S. 492, 493, ante, 164,) the court held that the state of Virginia, though not named as a party defendant, was the actual party in the controversy. Mr. Justice MATTHEWS, who delivered the opinion, said: "It is therefore not conclusive of the principal question in this case that the state of Virginia is not named as a party defendant. Whether it is the actual party *** must be determined by a consideration of the nature of the case as presented on the whole record." So, in the cases of New Hampshire v. Louisiana and New York v. Louisiana, 108 U. S. 76, 2 Sup. Ct. Rep. 176, the court looked behind and through the nominal parties on the record to ascertain who were the real parties to the suit. Chief Justice WAITE, in delivering the opinion of the court, used the following language: "No one can look at the pleadings and testimony in these cases without being satisfied, beyond all doubt, that they were in legal effect commenced, and are now prosecuted, solely by the owners of the bonds and coupons. * * * The bill, although signed by the attorney general, is also signed, and was evidently drawn, by the same counsel who prosecuted the suits for the bondholders in Louisiana, and it is manifested in many ways that both the state and the attorney general are only nominal actors in the proceeding. The bond-owner, whoever he may be, was the promoter and is the manager of the suit. * ** And, while the suits are in the names of the states, they are under the actual control of individual citizens, and are prosecuted and carried on altogether by and for them." In the case of U. S. v. Railway Co., supra, in which it was decided that the statute of limitations of the state of Tennessee was no defense to an action of the United States upon certain negotiable bonds held by them for public use, Mr. Justice GRAY is careful to say: "This case does not present the question what effect the statute may have in an action on a contract in which the United States have nothing but the formal title, and the whole interest belongs to others;" and cites Maryland v. Baldwin, 112 U. S. 490, 5 Sup. Ct. Rep. 278; Miller v. State, 38 Ala. 600. In the former case it was held that a suit in the name of a state, for the benefit of parties interested, is to be regarded as a suit in the name of the party for whose benefit it is brought. Mr. Justice FIELD, delivering the opinion of the court, said: "The name of the state is used from necessity when a suit on the bond is prosecuted for the benefit of a person interested, and, in such cases, the real controversy is between him and the obligors on the bond;" and the case was decided upon a consideration of the merits as if the party interested was alone named as plaintiff. And he cited approvingly the following language in McNutt v. Bland, 2 How. 9: "As the instrument of the state law, his [the governor's] name is in the bond and to the suit upon it; but in no just view ** can he be considered a litigant party. Both look to things, not names; to the actors in controversies and suits, not to the mere forms or inactive instruments used in conducting them in virtue of some positive law." In Miller v. State, the other case cited by Mr. Justice GRAY, the court said: "As laches is not to be imputed to the government, the statute of limitations does not apply to the state, unless it be clear from the act that it was intended to include the state. * * * In our opinion, the rule that the statute of limitations does not run against the state has no application to a case like the present, when the state, though a nominal party on the record, has no real interest in the litigation, but its name is used as a means of enforcing the rights of a third party who alone will enjoy the benefits of a recovery." In Moody v. Fleming, 4 Ga. 115, 118, which was a case where a party was applying for a mandamus in the name of the state, the court said: "It is insisted that here the state is a party, moving the contest, and setting up a right to have this survey certified, and that the tenant will not be protected by his possession, because the statute of limitations does not run against the state. We have decided, and the decision is sustained by unbroken masses of authority, that

the statute of limitations does not run against the state. The answer, however, to this argument is this: The state of Georgia is not the real party to the proceeding. *** The process is in the name of the state, but the right asserted is a private right. The issue is between two of the citizens of the state."

Applying these principles to this case, an inspection of the record shows that the government, though in name the complainant, is not the real contestant party to the title or property in the land in controversy. It has no interest in the suit, and has nothing to gain from the relief prayed for, and nothing to lose if the relief is denied. The bill itself was filed in the name of the United States, and signed by the attorney general on the petition of private individuals; and the right asserted is a private right, which might have been asserted without the intervention of the United States at all. In his letter to the United States district attorney upon the subject, the attorney general directs that that officer shall sign his (the attorney general's) name to the bill when the attorneys for the petitioners shall present such a bill, and file the same in the proper court, and that, after the suit is commenced, these attorneys for the petitioners will have the management of the case. Accordingly, the subsequent proceedings in the case have been conducted exclusively by these attorneys, who, in the pleadings, describe themselves as attorneys for the petitioners and beneficiaries of the suit.

We are of the opinion that when the government is a mere formal complain-ant in a suit, not for the purpose of asserting any public right or protecting any public interest, title, or property, but merely to form a conduit through. whom one private person can conduct litigation against another private person, a court of equity will not be restrained from administering the equities. existing between the real parties by any exemption of the government designed for the protection of the rights of the United States alone. The mere use of its name in a suit for the benefit of a private suitor cannot extend its immunity as a sovereign government to said private suitor, whereby he can avoid and escape the scrutiny of a court of equity into the matters pleaded against him by the other party; nor stop the court from examining into and deciding the case according to the principles governing courts of equity in like cases be-tween private litigants. These principles, so far as they relate to general statutes of limitation, the laches of a party, and the lapse of time, have been rendered familiar to the legal mind by the oft-repeated enunciation and onforcement of them in the decisions of this court. According to these decisions, courts of equity, in general, recognize and give effect to the statute of limitations as a defense to an equitable right when at law it would have been prop-erly pleaded as a bar to a legal right. They refuse to interfere to give relief when there has been gross negligence in prosecuting a claim, or where the lapse of time has been so long as to afford a clear presumption that the witnesses to the original transaction are dead, and the other means of proof have disappeared.

We think the court below justly and wisely applied the principle to the case under consideration in sustaining the demurrer and dismissing the bill. The rights of the Philbrook heirs, the real parties to this case, which are set up in this bill, originated in 1815. The acts of Beebe, perpetrating the alleged fraud,. were prior to 1838. The alleged illegal action of the land department occurred in 1839. More than 45 years ago the complainants in this bill could have instituted their action. The death of the parties charged with the fraud, and also of most, if not all, of the witnesses having personal knowledge of thetransaction, the fact that a city has been built upon the land in question, the occupation of large portions of it by hundreds of innocent purchasers, the homesteads of many families covering other portions of it, the uninterrupted possession maintained for more than a generation, all resting upon faith in the patent issued by the United States government, constitute reasons more

than sufficient for the refusal of the court to set aside such patent at the suit of a party who has so long slept upon his alleged rights. For the reasons herein stated, the decree of the court below is affirmed.

HOLLAND v. SHIPLEY et al.

(May 14, 1888.)

PATENTS FOR INVENTIONS-PATENTABILITY-INVENTION.

Patent issued January 22, 1884, to John Holland, for an improvement in leadholders for pencils, the application admitting that there were already in use leadholding tubes for pencils, with two or more slots at the lower end, so as to form elastic clamping fingers closing upon the lead by means of a sliding sleeve, also tubes with a single slot and an interior screw-thread, but claiming as a new article of manufacture a lead-holder with two or more slots in a tube threaded inside and sleeved outside, is void for want of invention.

Appeal from the Circuit Court of the United States for the Southern District of Ohio; G. R. SAGE, Judge.

Bill in equity by John Holland against Morris S. Shipley and Edward Tyrrell, doing business as the Shipley-Tyrrell Manufacturing Company, for infringement of letters patent. Bill dismissed, and plaintiff appeals.

Geo. J. Murray, for appellant. E. E. Wood and Edward Boyd, for appellees.

GRAY, J. This is an appeal from a decree dismissing a bill in equity for the infringement of letters patent granted to the plaintiff January 22, 1884, for "improvements in lead-holders for pencils," which (omitting the drawings and the explanation of them) fully shows the invention claimed, and the form of lead-holders or lead-tubes previously in use, and known to the patentee, as follows: "The object of my present invention is to hold the lead or crayon in pencils from slipping 'back within the tube when pressed upon by the act of writing, without danger of breaking the lead. Lead-tubes now in common use are usually slotted at the lower end to form elastic clamping fingers, which fingers are closed upon the lead near its point end by a sleeve or a tube which moves longitudinally over the fingers. These fingers are either smooth upon the inside, or terminate at their ends in sharp inward projections or claws. The first kind soon become so smooth that the lead slips back when borne upon in the act of writing; and the second frequently breaks the lead when the clamping sleeve is tightened up, and when tightened up carefully the lead often breaks in use when writing with the pencil inclined. I overcome both these objections by making a fine screw-thread within the lower end of the tube, before it is slotted to form the clamping fingers. The clamping fingers may, instead of being screw-threaded upon the inside, be serrated or roughened, to accomplish the same result; but the screw-thread is much better, because by this means a uniformly even roughened surface can be made within the lower end of the tube at comparatively small expense; and, as these pencils are designed to take the place of the common lead pencil, they must be made cheaply to insure their introduction into general use. I am aware that it is old to provide a pencil case for holding ordinary lead pencils with a sliding ring, to which are secured spring clamps having their holding surfaces serrated, and having their shanks bent to approach each other, then jut outwardly and downwardly at their free ends, so that a ring slide may be moved upon said shanks to cause the free ends of the clamps to grasp or release a pencil; and I am also aware that it is old to provide the lead-holding tube of a pencil with an interior thread, and a single slot. I therefore do not claim either of these devices. I claim as my invention—(1) As a new article of manufacture, a lead-tube for pencils, consisting, substantially as before set forth, of a tube provided at one end with internal or female threads, and two or more longitudinal slots to form threaded fingers. (2) The combination, with the leadv.8s.c.-69

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