Opinion of the Court.

in his patent. The wells made by Green himself at Cortland, and at the fair grounds near Cortland, for the use of his soldiers, were his first experiments. In respect to these, it was said by Judge Benedict, in Andrews v. Carman, 13 Blatchford, 307, 325: "The first experiment was a success in this, that it proved the possibility of obtaining a supply of water by this process; but, of course, it could not prove that a tube could be driven down to a water-bearing stratum in all localities, with the cheapness and dispatch necessary to render the process one of general utility. It was natural, therefore, to suppose, that, before the process could be declared to be satisfactory, other experiments, in other and different localities, should be made. He could, by law, use his invention for this purpose, and permit it to be used, for two years, without forfeiting his right to a patent. Under such circumstances, it would be going far to say, that his act of permitting the use of his process at the camp in Cortland, where his regiment was then in camp, and of providing material wherewith to construct such wells for his regiment when it should move into hostile territory, amounted to a dedication of his invention to public use, and worked a forfeiture of his right to it.”

Section 7 of the act of March 3, 1839, 5 Stat. 353, 354, protects every one who had purchased or constructed the subject of the invention prior to the application for the patent, and adds as follows: "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 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." 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.

Opinion of the Court.

Upon the question of infringement, the agreed statement of facts shows the following: "That the defendants have had in use on their farm for the past seven or eight years one or more driven wells, which wells were put down for the defendants by an ordinary well-driver in the following manner : A tube, of which the lower portion was perforated with small holes and the lower end provided with a point, was driven into the ground until it projected into the water, without removing the earth upwards, as in boring. The water then entered the tube through the perforations and was pumped up through the tube by an ordinary pump. That the defendants have never driven wells for themselves, except as above described, or for other purposes; never have sold or offered for sale driven wells, or the materials for driving them, but have simply used their own wells for their personal use on their farms."

It is now contended, on the part of the appellant, that the claim of the patent is for the process of driving the well, and not for the use of the well after it has been driven, and that consequently the appellant is not shown to have infringed; but, as has been shown in the case of Eames v. Andrews, the patent covers the process of drawing water from the earth by means of a well driven in the manner described in the patent. The use of a well so constructed is, therefore, a continuing infringement, as every time water is drawn from it the patented process is necessarily used. As was said by Mr. Justice Blatchford in Andrews v. Cross, 19 Blatch. 294, 305: "Under this construction the defendant has infringed by using the pump in a driven well, constructed in a house hired by him, to obtain a supply of water for the use of his family, although he may not have paid for driving the well, or have procured it to be driven. Such use of the well was a use of the patented process."

The decree of the Circuit Court is accordingly affirmed.

MR. JUSTICE FIELD, MR. JUSTICE BRADLEY, and MR. JUSTICE GRAY dissented.

Syllabus.

ST. LOUIS, IRON MOUNTAIN AND SOUTHERN RAILWAY COMPANY v. KNIGHT.

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF ILLINOIS.

Argued May 3, 1887.- Decided May 23, 1887.

A bill of lading, acknowledging the receipt by a common carrier of "the following packages, contents unknown... marked and numbered as per margin, to be transported" to the place of destination, is not a warranty, on the part of the carrier, that the goods are of the quality described in the margin.

P. shipped by rail a large quantity of cotton at different times, and at different points south of Texarkana, Ark., to be made up into bales there at a compress-house, and to be thence forwarded to various destinations North and East. The work at the compress house was to be done by the carrier, but under direction of the shipper, who had control of the cotton there for that purpose, and who superintended the weighing, the classing, and the marking of it, and who selected for shipment the particular bales to fill the respective orders at the points of destination. Bills of lading for it were issued from time to time by the agents of the railroad company, sometimes in advance of the separation by P. of particular bales from the mass to correspond with them. P. was in the habit of drawing against shipments with bills of lading attached, and his drafts were discounted at the local banks. When shipments were heavy, drafts would often mature before the arrival of the cotton. 525 bales, marked on the margin as of a particular quality, were so selected and shipped to K. at Providence, Rhode Island. The bill of lading described them as "contents unknown," "marked and numbered as per margin." The contents of the bales on arrival were found not to correspond with the marks on the margin. The consignee had honored the draft before the arrival of the cotton. He refused to receive the cotton, and sold it on account of the railroad company, after notice to it, and sued in assumpsit, on the bill of lading, to recover from the company, as a common carrier, the amount of the loss. Held,

(1) That the bill of lading was not a guarantee by the carrier that the cotton was of the quality described in the margin;

(2) That if the railroad company was liable as warehouseman, that liability could not be enforced under this declaration; nor, under the circumstances of this case, by the consignee of the cotton; (3) That the company was not liable as a common carrier from points south of Texarkana for the specific bales consigned to K.;

Argument for Plaintiff in Error.

(4) That its liability as common carrier began only when specific lots

were marked and designated at Texarkana, and specifically set apart to correspond with a bill of lading then or previously issued.

In Illinois, under an unverified plea of the general issue in assumpsit against a common carrier for goods lost, the defendant may at the trial deny his liability under the bill of lading; § 34 of the Practice Act having no application to such a denial.

ASSUMPSIT against plaintiff in error, defendant below, as a common carrier, to recover on a bill of lading for goods not delivered. Judgment for plaintiffs. Defendant sued out this writ of error. The case is stated in the opinion of the court.

Mr. John F. Dillon for plaintiff in error cited: Walker v. Brewer, 11 Mass. 99; Lickbarrow v. Mason, 2 T. R. 63, 77; Grant v. Norway, 10 C. B. 665; Hubbersty v. Ward, 8 Exch. 330; Brown v. Powell Duffryn Co., L. R. 10 C. P. 562; The Freeman v. Buckingham, 18 How. 182; The Loon, 7 Blatchford, 244; Robinson v. Memphis, &c., Railway Co., 9 Fed. Rep. 129; S. C. 16 Fed. Rep. 57; Pollard v. Vinton, 105 U. S. 7; Sears v. Wingate, 3 Allen, 103; Baltimore & Ohio Railroad v. Wilkens, 44 Maryland, 11; Hunt v. Mississippi Central Railroad, 29 La. Ann. 446; Louisiana Bank v. Laveille, 52 Missouri, 380; Chandler v. Sprague, 38 Am. Dec. 407, note; Cox v. Bruce, 18 Q. B. D. 147; Miller v. Hannibal & St. Joseph Railroad, 90 N. Y. 430; The L. J. Farwell, 8 Bissell, 61; Rowley v. Bigelow, 12 Pick. 307 [S. C. 23 Am. Dec. 607]; Haddow v. Parry, 3 Taunt. 303; Jessel v. Bath, L. R. 2 Exch. 267; Lebeau v. General Steam Nav. Co., L. R. 8 C. P. 88; Clark v. Barnwell, 12 How. 272; The Columbo, 3 Blatchford, 521; 630 Casks of Sherry Wine, 7 Ben. 506, 509; S. C. 14 Blatchford, 517; Bissel v. Price, 16 Ill. 408; Barrett v. Rogers, 7 Mass. 297 [S. C. 5 Am. Dec. 45]; Shepherd v. Naylor, 5 Gray, 591; Michigan Southern Railroad v. Shurtz, 7 Mich. 515; Platt v. Hibbard, 7 Cowen, 497; St. Louis, &c., Railroad v. Montgomery, 39 Ill. 335; Roskell v. Waterhouse, 2 Starkie, 461; O'Neil v. New York Central Railroad, 60 N. Y. 138; Barron v. Eldredge, 100 Mass. 455.

Opinion of the Court.

Mr. Julius Rosenthal and Mr. Abram M. Pence for defendants in error, submitted on their brief, citing: Rowley v. Bige low, 12 Pick. 307 [S. C. 23 Am. Dec. 607]; Stevenson v. Farnsworth, 2 Gilman, 715; Gaddy v. McCleave, 59 Ill. 182; Templeton v. Hayward, 65 Ill. 178; Dwight v. Newell, 15 Ill. 333; Walker v. Krebaum, 67 Ill. 252; The Idaho, 93 U. S. 575; Robinson v. Memphis, &c., Railway, 16 Fed. Rep. 57, 60; Moulor v. American Life Insurance Co., 111 U. S. 335; Indianapolis, &c., Railroad Co. v. Horst, 93 U. S. 291; Beaver v. Taylor, 93 U. S. 46; Beckwith v. Bean, 98 U. S. 266; Ottawa & Fox River Railroad v. Me Math, 91 Ill. 111; St. Louis & Iron Mt. Railroad v. Larned, 103 Ill. 293; Armour v. Mich. Central Railroad, 65 N. Y. 111; Bank of Pittsburgh v. Neal, 22 How. 96.

MR. JUSTICE MATTHEWS delivered the opinion of the court.

This is an action of assumpsit brought by the defendants in error against the St. Louis, Iron Mountain and Southern Railway Company in the Superior Court of Cook County, Illinois, and removed into the Circuit Court of the United States for the Northern District of Illinois by the defendant below, the parties being citizens of different states. The declaration set out several similar causes of action in different counts against the railway company as a common carrier, in one of which it was alleged that the defendant, having received from one G. T. Potter a large number of bales of cotton, described in a certain bill of lading acknowledging receipt thereof, thereby agreed safely to carry the same from Texarkana, in the state of Arkansas, to St. Louis, in the state of Missouri, and thence to Woonsocket, in the state of Rhode Island; and avers that, in violation of its promise and duty, and by reason of its negligence, the said goods became and were wholly lost. The plaintiffs below sued as purchasers of the cotton from Potter and assignees of the bills of lading. The bills of lading sued upon were similar in their tenor, except as to the description of the articles named therein, and commenced as follows: "Received from G. T. Potter the following packages, contents unknown, in apparent good order, marked and numbered as

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