Opinion of the Court

quently took out a license under the Glidden patent after being defeated in a suit brought against Haish for the infringement of this patent, in which his device was set up as an anticipation. The testimony also indicates that the exhibit is constructed of a variety of steel which did not come into use until after 1870. Upon the whole, the evidence fails to satisfy us that this fence was constructed before application was made for the Glidden patent.

There was a vast amount of testimony of similar character tending to show the use of coiled barbs upon fence-wires, which it would serve no good purpose to discuss in detail. There was evidently prior to Glidden's application more or less experimenting in a rude way in and about Delaware County, upon the subject of barbed wires as applied to wire fences, and we think it is quite probable that coiled barbs were affixed to single wires before the Glidden application was made. We are not satisfied, however, that he was not the originator of the combination claimed by him of the coiled barb, locked and held in place by the intertwisted wire. It is possible that we are mistaken in this; that some one of these experimenters may have, in a crude way, hit upon the exact device patented by Glidden, although we are not satisfied from this testimony, whether or by whom it was done. It is quite evident, too, that all or nearly all of these experiments were subsequently abandoned. But it was Glidden, beyond question, who first published this device; put it upon record; made use of it for a practical purpose; and gave it to the public, by which it was eagerly seized upon, and spread until there is scarcely a cattleraising district in the world in which it is not extensively employed. Under these circumstances, we think the doubts we entertain concerning the actual inventor of this device should be resolved in favor of the patentee.

The decree of the Circuit Court will, therefore, be

Reversed, and the case remanded with instructions to enter a decree for the plaintiff for an accounting, and for further proceedings in conformity with this opinion.

MR. JUSTICE FIELD dissented, upon the ground that there was no novelty in the invention.

Syllabus.

No. 129. THE WASHBURN AND MOEN MANUFACTURING COMPANY V. NORWOOD. No. 130. THE WASHBURN AND MOEN MANUFACTURING COMPANY v. WILER. MR. JUSTICE BROWN delivered the opinion of the court. These cases were consolidated in the court below with that of Washburn and Moen Manufacturing Company v. Beat 'Em All Barbed Wire Company, No. 128, with a stipulation that the same decree upon the question of the validity and infringement of the patent declared upon should be entered in all the causes. They differ only in the fact that in the first case the suit was against the manufacturers, and in these cases against the vendors of the infringing wire. As the cases are identical in every other particular the same disposition will be made of them, and the decrees of the court below reversed, and the cases remanded with instructions to enter in each a decree for the plaintiff, for an accounting, and for further proceedings in conformity with the opinion in No. 128.

Mr. John R. Bennett for appellants.

M. A. H. Blair and Mr. William H. Singleton for appellees.

MICHIGAN INSURANCE BANK v. ELDRED.

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF WISCONSIN.

No. 1288. Argued January 29, 1892. — Decided February 29, 1892.

After the term at which a trial took place has expired, without the court's control over the case being reserved by standing rule or special order, and especially after a writ of error has been entered in this court, the court below cannot allow a bill of exceptions then first presented, or amend a bill of exceptions already allowed and filed. Under the Code of Wisconsin, an express denial, upon information and belief, that the plaintiff was, at or since the commencement of the action, or is now, a corporation, puts in issue the existence of the corporation. The conversion of a state bank into a national bank, with a change of name, under the National Banking Act, does not affect its identity, or its right to sue upon liabilities incurred to it by its former name.

Statement of the Case.

If the whole evidence introduced by the defendant upon one issue is incompetent to support it, and is admitted and considered against the plaintiff's exception, and the judge, by ruling that this evidence is decisive against the the plaintiff's right to recover, without regard to another issue in the case, induces the plaintiff not to put in evidence on the other issue, the plaintiff is entitled to a new trial, although he has not also excepted to a direction to return a verdict for the defendant.

THIS was an action by the Michigan Insurance Bank, a corporation created and organized under the laws of the State of Michigan, against a citizen of Wisconsin, upon a judgment recovered by the plaintiff against him on May 13, 1862, in an inferior court of Michigan for the sum of $4211.56. In the present action, the writ was dated May 11, 1872, and appeared by the marshal's return thereon to have been served on June 3, 1882. The defendant originally pleaded the statute of limitations of ten years, and on that issue obtained a verdict, the judgment on which was reversed by this court at October term, 1888, because evidence, introduced by the plaintiff, that within the ten years the summons had been delivered to the marshal for service, had not been properly submitted to the jury. 130 U. S. 693.

The defendant thereupon obtained leave from the Circuit Court to amend his answer, by adding, as a distinct defence, the following: "Said defendant denies, upon information and belief, that at the time of the commencement of this action the said plaintiff was, or is now, a corporation created or organized under the laws of the State of Michigan, or under the laws of any other State, Territory or government and said defendant futher specifically denies, upon information and belief, that said plaintiff at the time of the commencement of this action was, or at any time since then has been, or is now, a corporation."

On June 24, 1891, the case came on again for trial before the Circuit Judge, when the plaintiff put in evidence its articles of incorporation under the laws of Michigan, and the record of the judgment sued on; and rested its case.

To support the defence of the statute of limitations, the defendant put in evidence the writ and the officer's return.

Statement of the Case.

In support of the other defence, the defendant offered in evidence duly certified copies of the following documents, all in accordance with the National Banking Act of June 3, 1864, c. 106: 1st. Articles of association, dated June 26, 1865, executed by the plaintiff's directors, by authority of two thirds of its stockholders, changing and converting it into a national bank, by the name of the National Insurance Bank of Detroit. 2d. The organization certificate, of the same date, executed by the plaintiff's directors, under the same authority. 3d. Instruments signed by such stockholders, conferring such authority. 4th. A certificate, dated July 13, 1865, of the Comptroller of the Currency, that the association had complied with the provisions of law, and was authorized to commence business. 5th. A certificate of liquidation, made by the cashier of the association to the Comptroller of the Currency, dated March 1, 1869.

The plaintiff objected to the admission of these documents, "because, if received in evidence, they do not show that the plaintiff does not exist as a corporation; they simply show the organization of a corporation called the National Insurance Bank of Detroit:" and also "because the incorporation of the plaintiff is not affirmatively and specifically denied in the answer, but denied on information and belief." The objections were overruled, and the documents admitted in evidence, and the plaintiff excepted to the ruling.

The defendant then rested; and the plaintiff moved that all of the defendant's evidence be stricken out, for the reason, if it be assumed to be correct, it has not made out any case." The judge said: "I think on the record as it now standson the proof as it now stands - the Michigan Insurance Bank became defunct and ceased to exist in 1865, when the national bank was organized;" and refused to grant the motion; and the plaintiff excepted to the refusal.

The subsequent part of the bill of exceptions contained no further exception of the plaintiff, but consisted (except the formal conclusion) of a stenographer's notes of a desultory conversation between the presiding judge and the plaintiff's counsel, upon the question whether the plaintiff should intro

Statement of the Case.

duce evidence, which he said he had, to show that the statute of limitations had not run; and ending as follows:

The judge said, "Even if the right of action was not barred, you cannot recover." The plaintiff's counsel repeated that the defendant had offered in evidence the writ and the officer's return to prove that the action was barred by the statute of limitations; and that the plaintiff had evidence that the summons was placed in the marshal's hands for service within ten years after the cause of action accrued, but there would be no use in putting in that evidence, if, regardless of it, the court would charge the jury to bring in a verdict for the defendant. Thereupon the judge said, "I think I will," and instructed the jury to return a verdict for the defendant, and they did so.

The bill of exceptions was signed by the judge on June 24, and filed on June 25, 1891, before the adjournment of January term, 1891. This writ of error was sued out on June 25, and was entered in this court on July 22, 1891.

At the present term of this court, the case was advanced for hearing, on motion of the defendant in error, under Rule 26, clause 4, because it had been once adjudged by this court on the merits.

On January 26, 1892, the plaintiff in error moved for a writ of certiorari to bring up the record of the following proceedings at January term, 1892, of the Circuit Court.

On January 16, the Circuit Judge, on the application of the plaintiff's attorneys, and upon its appearing to his satisfaction, "from the stenographer's report of the testimony and trial, that the plaintiff omitted, in the bill of exceptions heretofore signed," two exceptions which were taken at the trial, ordered, against the objection and exception of the defendant, that the original bill of exceptions be amended by inserting after the judge's words, "I think I will,” the words, "to which ruling the plaintiff duly excepted;" and, after the instruction to return a verdict for the defendant, the words, "to which the plaintiff duly excepted." On January 18, after the bill of exceptions had been amended accordingly, the judge signed it nunc pro tune as of June 24, 1891, and ordered it to be filed