Opinion of the Court.

the operation of which it is more liable to be spoiled than when dried. It may be true, as claimed, that the adhesive qualities of glue before it is dried are somewhat superior to what they are after the glue has been dried, and then remelted for actual use. But this is merely a question of degree, and the application of the "glue soup" before drying cannot properly be called a discovery, such as involves the exercise of the inventive faculties.

But aside from this, and even admitting that such a discovery and use of liquid glue would involve invention or patentable novelty, it is clearly established by the evidence in the record that there had been such a prior use of the alleged discovery as to preclude the issue of any valid patent covering it. Whatever advantages there may be in using liquid glue, or "glue soup" before it is dried, over a similar use of remelted dried glue, were well known prior to the date of the complainant's application for the patent in question. It is shown by the testimony that in various general publications and trade journals published in Germany in the years. 1869, 1870, and 1871, and circulated in this country, the advantages of using hot or liquid glue are set out, as well as the description of the manufacture of glue jelly by different parties and in different localities; and from extracts produced from these journals, which are standard authorities on chemical industries, and contain information on the subject in question, it is shown that manufacturers in Germany were making and selling liquid glue in its jelly form for the same purposes and uses for which the glue in its dried form is ordinarily used; and that it was considered better and cheaper to use it in that condition rather than go to the expense and labor of first drying it. In the glue industries, both in this country and in Germany, the fact was well recognized that the adhesive qualities of glue, before it was dried, were superior to what they were after the glue had been dried for commerce, and that by using it before drying there would be a great saving of time, expense, and loss. It was shown that in some instances the glue jelly was prepared and put away in hermetically-sealed casks for commercial use in the future.

Opinion of the Court.

In addition to these publications relating to the use of "glue soup," it is shown that glue in that state or condition had been used in the extensive glue factory of Peter Cooper & Company, at Williamsburg, (now a part of Brooklyn,) New York, as early as 1859 or 1860. It is proven that in the Cooper factory barrels used for the purpose of shipping neat's foot oil were lined or coated with hot liquid glue, that had never been dried, substantially in the same manner, and by the identical process described in complainant's patent. In fact, the process on which he claims a patent was well known at that factory long prior to the date of his alleged invention, and no one seems to have had any idea that it was either new, or could be considered such a secret or discovery as involved invention, or was entitled to protection.

It is furthermore shown by the testimony that precisely this same process of lining oil barrels with hot "glue soup," was used in the oil regions of Pennsylvania and Ohio as early as 1861.

It is not deemed necessary to go into this evidence more in detail. It is not successfully impeached or contradicted by the complainant. In addition to this, the complainant concedes in his own testimony that his "glue soup" is the same thing as "sizing," which was in use long prior to the date of his invention by manufacturers of writing and wall paper.

It being thus clearly established that the use of liquid glue was well known to glue manufacturers and oil refiners, and had been actually applied in the very way and for the very purposes described by the complainant, long before the date of his alleged invention, it is too clear for discussion that he could have no valid patent which would cover a process for using liquid glue for coating or sizing purposes as a new discovery or invention; and our conclusion, therefore, is that the decree of the court below was clearly correct, and should be

Affirmed.

Statement of the Case.

MOSES v. LAWRENCE COUNTY BANK.

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE MIDDLE DISTRICT OF ALABAMA.

Under a statute of frauds which requires the consideration of a promise to answer for the debt of another to be expressed in writing, a guaranty by a third person of the payment of a negotiable promissory note need not itself express any consideration, if written upon the note before it is delivered and first takes effect as a contract; but must, if written afterwards.

A negotiable promissory note, even if not purporting to be "for value received," imports a consideration; and the endorsement of such a note is itself prima facie evidence of having been made for value.

A promissory note payable to the maker's own order first takes effect as a contract upon endorsement and delivery by him.

The statute of frauds of a State, even as applied to commercial instruments, is a rule of decision in the courts of the United States.

THIS was an action, brought April '16, 1888, by a national bank, organized under the acts of Congress, and doing business in and a citizen of Pennsylvania, against six persons, citizens of Alabama and residing in the Middle District of Alabama, to recover the amount due on a guaranty of a promissory

note.

The complaint alleged that, on August 15, 1887, the Sheffield Furnace Company, an Alabama corporation, made a promissory note for $12,111.51, payable to its own order four months after date at the banking house of Moses Brothers, in Montgomery; that contemporaneously with the making of the note, and before its delivery or negotiation, and in order to give it credit and currency, its payment at maturity was guaranteed by the defendants, for a valuable consideration, by an endorsement in writing on the note in these words, "We hereby guarantee the payment of the note at maturity," signed by the defendants, and which was intended by them to induce, and which in fact induced, James P. Witherow and

Statement of the Case.

all others to whom the note and guaranty were offered for negotiation and sale, to take the note and guaranty and to give value therefor; that the note, with the guaranty thereon, was before its maturity duly endorsed for value by the Sheffield Furnace Company to the order of Witherow; that afterwards, and before the maturity of the note and guaranty, Witherow endorsed the note, guaranteed as aforesaid, to the plaintiff for value; that afterwards, and before the maturity of the note and guaranty, the defendants endorsed in writing on the note their waiver of protest and notice; that the note was not paid at maturity, and that the note and guaranty remained unpaid and the property of the plaintiff.

The defendant pleaded twelve pleas, of which the only ones material to be stated were as follows:

Fourth. That the guaranty sued on was a special promise to answer for the debt of another, and did not express any consideration for the promise.

Fifth. That the note was given by the Sheffield Furnace Company for a debt owing to Witherow before it was made, and was not founded upon a consideration paid or liability accrued at the time of the making thereof, and the guaranty was without any consideration.

Eighth. That the Sheffield Furnace Company paid the debt sued on to Witherow before this action was commenced.

Twelfth. That the guaranty sued on was a special promise to answer for the debt of another, and did not express any consideration therefor, and was not executed contemporaneously with, nor before the negotiation of, the note of which it guaranteed the payment.

The plaintiff demurred to the fourth and fifth pleas, because they did not deny that the defendants endorsed the guaranty upon the note contemporaneously with its execution and before any negotiation thereof; and also demurred to these pleas, as well as to the twelfth, because they did not deny that the defendants endorsed the guaranty upon the note before its negotiation to the plaintiff and in order to give it credit and currency, nor allege that the plaintiff had notice of any want of consideration for the guaranty.

Argument for Defendant in Error.

To the eighth plea, a replication was filed, alleging that the plaintiff became the owner of the note for a valuable consideration before maturity, and that no part thereof had ever been paid to the plaintiff, or to any one authorized by the plaintiff to receive it. To this replication the defendant

demurred.

The court sustained the demurrers to the pleas, and overruled the demurrer to the replication.

Issue was then joined on the eighth plea and the replication thereto; and a trial by jury was had upon that issue, at which the plaintiff gave in evidence the note, purporting to be "for value received," and the following endorsements thereon, in the order in which they appeared upon the note: 1st. "Pay to the order of J. P. Witherow," signed by the Sheffield Furnace Company. 2d. An endorsement in blank by Witherow. 3d. "We hereby guarantee the payment of this note at maturity," signed by the defendants. 4th. Another blank endorsement by Witherow under the guaranty. No other evidence was introduced. Thereupon the court instructed the jury to render a verdict for the plaintiff for the amount sued for, with interest; a verdict was returned accordingly; and the defendant, having duly excepted to the evidence and to the instruction, tendered a bill of exceptions and sued out this writ of error.

Mr. John D. Roquemore and Mr. J. N. Arrington, for plaintiffs in error, submitted on their brief.

Mr. J. M. White and Mr. W. E. Gunter filed a supplemental brief for plaintiffs in error.

Mr. Henry B. Tompkins, for defendant in error, submitted on his brief and supplemental brief, in which it was contended:

This suit is governed by the general commercial law, irrespective of what may be the statute law or the decisions of the courts in Alabama. Swift v. Tyson, 16 Pet. 1; Oates v. National Bank, 100 U. S. 239; Railroad Co. v. National Bank, 102 U. S. 14; Pana v. Bowler, 107 U. S. 529, 541.