other special defenses to a suit for infringement, this: that the invention has "been in use or on sale in this country for more than two years before his application for a patent." The answer set up "that the alleged invention was in public and common use, and on sale, with and by the knowledge and consent of the patentee, for more than two years before the application." It did not in terms allege that such public use was "in this country," as the statute provides. While this defense may not have been pleaded with technical accuracy, yet the testimony tending to establish it was received on the final hearing without any objection. The first time the question has been raised, as appears from the record, is on the argument of the appeal in this court; and here it is too late. Roemer v. Simon, 95 U. S. 214, 220; Loom Co. v. Higgins, 105 U. S. 580, 595.

That the invention covered by the patent, or at least something very similar to it, had been in use and on sale for more than two years prior to the date of the application, does not admit of doubt; and that such use was not an experimental one seems to be clear from the testimony. The application for a patent was on October 14, 1882. In the spring of 1880, J. G. Smith & Co., the predecessors of appellant, were engaged in the manufacture and sale of bed bottoms. In the catalogue issued by them in March, 1880, there is described and advertised what is called "No. 27;" and the testimony of the patentee, a member of the firm, is that during the years 1880 and 1881 they sold quite a number of them,-probably 200 or 300, and possibly 500,-50 or more having been sold before the 14th of October, 1880. In that catalogue, beneath the cut of No. 27, were

these words:

"In offering our No. 27 to the trade, we recognize the growing demand for an all-wire spring bed. After a long series of experiments, we have been able to produce a bed which is unequaled for cheapness, lightness, durability, and comfort. Mattress manufacturers will find this an excellent bed to upholster."

The patentee testified, in answer to a question as to whether the sales made in 1880 and 1881 were as an experiment or for gain, that "the sales were made as an experiment, as we do with everything else we get up; to put it on the market to see how the trade will take it; to see how it will take with the trade,”—and in response to a further question, as to what arrangement or understanding was had with the purchasers about the beds giving satisfaction, made this reply: "I had the understanding that, if any of them did not give satisfaction, they could return them, and I would replace them with the latest improvement of that or other beds; so they were satisfied." It is scarcely necessary to refer to the testimony offered by the defendant, tending to show that some at least of these sales were made in the ordinary course of business, and without any conditions named or suggested, and that a market was sought for the goods precisely as for other manufactured articles; for, upon the testimony of the patentee himself, it is obvious that what was done in the spring and summer of 1880 was not for the mere purpose of "experiment," as that term is used in patent law. The invention was one which the inventor could have tested in his own home, and

by use in his own family. He did not sell simply one or two, and wait to see how they satisfied the purchasers or what defects were discovered by them; but the firm of which he was a member invited the public to buy, representing the beds to be unequaled, and continued to manufacture and sell them from month to month and from year to year, in the same manner as any other article in their stock was manufactured and sold; and each sale was made at a profit, and with the contemplation of a profi.. The experiment was not a testing for the purpose of discovering defects and perfecting the invention, but a testing of the market, and to see how the article would sell, or, as the inventor said, "to see how it will take with the trade." It was a trader's, and not an inventor's, experiment. Such a use does not carve an exception out of the statute. See the following cases: Elizabeth v. Pavement Co., 97 U. S. 126; Egbert v. Lippmann, 104 U. S. 333; Manning v. Glue Co., 108 U. S. 462, 2 Sup. Ct. 860; Manufacturing Co. v. Sprague, 123 U. S. 249, 8 Sup. Ct. 122; Andrews v. Hovey, 123 U. S. 267, 8 Sup. Ct. 101; Root v. Railroad Co., 146 U. S. 210, 13 Sup. Ct. 100. In Egbert v. Lippmann (page 336) it was said by the supreme court:

"We observe, in the first place, that, to constitute the public use of an invention, it is not necessary that more than one of the patented articles should be publicly used. The use of a great number may tend to strengthen the proof, but one well-defined case of such use is just as effectual to annul the patent as many. McClurg v. Kingsland, 1 How. 202; Fruit-Jar Co. v. Wright, 94 U. S. 92; Pitts v. Hall, 2 Blatchf. 229. For instance, if the inventor of a mower, a printing press, or a railway car makes and sells only one of the articles invented by him, and allows the vendee to use it for two years, without restriction or limitation, the use is just as public as if he had sold and allowed the use of a great number."

And in Manufacturing Co. v. Sprague, 123 U. S. 264, 8 Sup. Ct. 122, this rule as to the character of the testimony was laid down:

"In considering the evidence as to the alleged prior use for more than two years of an invention, which, if established, will have the effect of invalidating the patent, and where the defense is met only by the allegation that the use was not a public use in the sense of the statute, because it was for the purpose of perfecting an incomplete invention by tests and experiments, the proof on the part of the patentee, the period covered by the use having been clearly established, should be full, unequivocal, and convincing."

Finally, it is insisted that the patented invention is substantially different from that manufactured and sold in 1880. In the language of counsel:

"The bed bottom used by Smith prior to October 14, 1880, was not the same invention patented by him, but was an imperfect, immatured, impractical, and unsuccessful bed bottom, and a mechanical and commercial failure, and wholly a different mechanical structure from the one patented, both in its results and construction."

The invention, it may be said in a general way, consisted of a bank of wire springs fastened together at both top and bottom by a series of tie rods and hooks, running laterally and crosswise. These tie rods and hooks, and the upper and lower coils of the springs to which they were attached, formed, as it were, two horizontal planes, kept apart by the intervening springs. A pressure upon any part of the upper plane was met, not simply by the resist

ance of the particular spring under the place of pressure, but, by reason of the hooks and tie rods, was distributed upon the surrounding springs. These hooks and rods were therefore important factors in keeping the springs in place, and thus securing the stabil ity of the bed. In both the bed manufactured and sold in 1880 and that described in the patent the hooks were formed by an extension of the upper coils of the springs. In the latter this extension was carried round the next lower coil, making what is called a "closed head," while in the former it was not so carried round. But this change does not seem to us a vital one, nor was it apparently so regarded by the patentee. In the specifications he says: "The hooks, b, b, are preferably an extension of the upper coil, being carried around the next lower coil, and then extended in the form of a hook." And, again: "The hooks, b, b, are the most desirable means for locking the tie loops, C, C, to the springs; but I do not desire to be confined thereto, as other means can be used to fasten the ties, C, C, to the springs." The manner of tying was evidently not of the substance of the invention.

In conclusion it may be said that the matter of obtaining a patent was an afterthought, and one that came too late to be of any avail to the patentee, even if there was in the construction of the bed such a display of inventive skill, and such novelty and utility, as gave a right to a patent, and of that we express no opinion. The decree is affirmed.

GILCHRIST et al. v. HELENA HOT SPRINGS & SMELTER R. CO. et al. (Circuit Court, D. Montana. November 6, 1893.)

No. 114.

1. EQUITY JURISDICTION-STATUTORY LIENS-ENFORCEMENT.

Equity has jurisdiction to enforce statutory liens when the statute itself provides no method of enforcement. Machine Co. v. Miner, 28 Kan. 441, distinguished.

2. SAME-FEDERAL COURTS-ENFORCING STATE STATUTORY LIENS.

In cases of proper citizenship, the federal courts have equitable jurisdiction to enforce against railroad companies judgments rendered in the state courts on material or labor claims, when the state statute makes such judgments superior liens on the property of the company in the county of their rendition, without providing any method of enforcing the same or binding other persons who claim interfering liens. 3. SAME RIGHTS OF THIRD PERSONS.

In such a proceeding the fact that the judgment was based upon a bill of exchange will not prevent the court, at the instance of other lien claimants, from going behind the same, and determining whether the consideration therefor consisted in fact of labor or material furnished. Hassall v. Wilcox, 9 Sup. Ct. Rep. 590, 130 U. S. 493.

4. CONSTITUTIONAL LAW

RESTRICTIONS ON STATES EQUAL PROTECTION OF

THE LAWS-RAILROAD COMPANIES.

A provision in a state statute (Comp. St. Mont. c. 25) that judgments for labor and materials furnished to railroad companies organized thereunder shall constitute a lien superior to that of any mortgage or deed of trust does not deprive such companies or their mortgagees of the equal protection of the laws, within the meaning of the fourteenth

amendment to the constitution of the United States. San Mateo Co. v. Southern Pac. R. Co., 13 Fed. Rep. 722, 8 Sawy. 238, distinguished. 5. SAME-STATE CONSTITUTIONS-LEGISLATIVE POWER.

Limitations placed upon the legislative power of a state by its constitution cannot invalidate a pre-existing territorial law, which was adopted and continued in force by the same convention which formed the constitution.

6. RAILROAD Lien Laws-"WORK AND LABOR" CLAIMS-WHAT ARE.

Persons who occupy the positions of managing agent and superintendent of trains, but who also, on occasion, run trains, clean cars, repair track, and act as "general utility" men, must be considered as performing "work and labor," within the Montana railroad lien law, (Comp. St. Mont. c. 25, § 707;) but it is not so with one who merely has charge of the office and of the receipts, and keeps in a book the time of the workmen as handed in to him. Mining Co. v. Cullins, 104 U. S. 176.

In Equity. Bill by Thomas Gilchrist, Charles Gilchrist, and W. B. Edgar, copartners as Gilchrist Bros. & Edgar, against the Helena, Hot Springs & Smelter Railroad Company, to enforce the lien of certain judgments recovered in the state courts. The cause was commenced in a state court, but the Northwestern Guaranty Loan Company, having intervened and filed a cross bill, removed the case to this court.

For former opinions, see 47 Fed. Rep. 593, and 49 Fed. Rep. 519. Leslie & Craven, for plaintiff.

Toole & Wallace and A. K. Barbour, for defendant Northwestern Guaranty Loan Co., interverer and cross complainant.

Walsh & Newman, F. P. Sterling, McConnell, Clayberg & Gunn, M. Bullard, and H. C. Smith, for defendant lienholders.

H. G. McIntire, for defendant Farmers' Loan & Trust Co.

KNOWLES, District Judge. Thomas Gilchrist and his partners obtained a judgment against the Helena, Hot Springs & Smelter Railroad Company for the sum of $2,299.81, in the district court of the county of Lewis and Clarke, state of Montana. They allege in their bill that their said judgment was for material bought and furnished to said railroad company by plaintiffs upon and in the use of the property of said company. It is alleged that the Helena, Hot Springs & Smelter Railroad Company is a corporation organized under the laws of the state of Montana; that, by virtue of said law, said judgment is a lien upon the property of said railroad company in Lewis and Clarke county, Mont. They also set forth the railroad property of said company in said county. It appears, further, that the Farmers' Loan & Trust Company, one of the defendants, is a corporation organized under the laws of the state of New York, and holds a trust deed upon the property of said railroad company to secure the payment of certain bonds of the said railroad company. They further charge that certain other defendants named in the bill have judgments which they claim are liens upon the property of said railroad company.

This cause was commenced in the district court of Lewis and Clarke county, Mont. Upon its own motion, the Northwestern Guaranty Loan Company was made a party defendant. It is a

corporation, as it appears, organized under the laws of the state of Minnesota. Said company, upon its petition, had said cause removed to this court. In this court said Northwestern Guaranty Loan Company filed its cross bill, contesting the rights of all the parties to the original bill, save those of the Farmers' Loan & Trust Company. In said cross bill it was claimed that the deed of trust given to said Farmers' Loan & Trust Company was prior to the lien of plaintiffs and of all the other len claimants in the bill, and that it was a beneficiary under said deed of trust, being the holder of certain bonds secured thereby, and that said Farmers' Loan & Trust Company, had failed to protect their rights. Issues were joined upon the allegations of the cross bill, setting forth the prior lien under the deed of trust. The matter was referred to the master in chancery of the court to determine as to whether the judgment of plaintiffs and the several judgments obtained by certain of the defendants against the Helena, Hot Springs & Smelter Railroad Company were for materials furnished for, or labor and work done upon, the property of said company. The deed of trust antedated the judgments. By the terms of this deed of trust, a conveyance was made of all the property, franchises, and income of the said railroad company, and of all property, rights, and franchises of the company, of whatsoever nature, it should aequire thereafter. This was in accordance with the power conferred upon such corporations by Comp. St. Mont. p. 824, § 706.

The defendants, in the cross bill, claimed a lien by virtue of the provisions of said Comp. St. p. 824, § 707, which is as follows:

"A judgment against any railway corporation for any injury to person or property, or for material furnished, or work or labor done upon any of the property of such corporation, shall be a lien within the county where recovered on the property of such corporation, and such lien shall be prior and superior to the lien of any mortgage or trust deed provided for in this act."

The act referred to is found in chapter 25, p. 807, Comp. St. Mont., and is the act authorizing the formation of such corporations as the Helena Hot Springs & Smelter Railroad Company. The first point I shall consider is the jurisdiction of this court over the subject-matter presented in the original bill, sitting as a court of chancery. It is claimed by the plaintiff in the cross bill that the lien of the judgment creditors in the case at bar is a legal lien given by law, and hence cannot be enforced in a court of chancery, and hence this court can have no jurisdiction of the matters set forth in the original bill. No doubt this point can be presented at any time in this court. It is true that the lien given in this case is a statutory lien. But that is no reason why it may not be enforced in equity. Pomeroy, in his Equity Jurisprudence, (volume 1, § 167,) classes statutory liens as coming exclusively within the jurisdiction of a court of equity, and adds:

"In addition to the liens above mentioned, which belong to the general equitable jurisdiction, the legislation of many states has created or allowed other liens which often come within the equity jurisdiction in respect at least to their means of enforcement. The so-called 'mechanics' liens' may be taken as the type and illustration of this class."