Argument of Counsel.

[18 App.

this that it makes no mention of the proceedings in regard to the probate of the will of Catharine Ann Whelan and the compromise effected by the parties to those proceedings.

A general demurrer on the ground that there was no equity in the bill was interposed on behalf of Mary J. Welch and Edward P. Welch, and the holders of the deed of trust or mortgage on the property demurred on the ground of laches. The court sustained the demurrer on the ground of laches and dismissed the bill. And from the decree of dismissal the present appeal has been prosecuted.

Mr. Frank T. Browning, Mr. Charles A. Keigwin and Mr. Charles Earl for the appellants.

Mr. W. D. Davidge, Mr. J. A. Maedel and Mr. W. D. Davidge, jr. for the appellees:

1. The defense of laches may be made by demurrer. Quirk v. Leibert, 12 App. D. C. 394; Lansdale v. Smith, 106 U. S. 391; Speidel v. Henrici, 120 U. S. 385; Bank v. Carpenter, 101 U. S. 567.

2. Appellants admit knowledge for a number of years "in a general way" as to the insanity, the custody of the lunatic's person, and the control of her estate. They do not even aver that they have made diligent efforts to ascertain the state of facts. A mere allegation of diligence would not be sufficient, but would be clearly better than nothing. This is merely a restatement of the complainants' laches; it is not an explanation of any delay whatever. They merely say that until recently they did not know what their rights were; but this is not sufficient. A general allegation of ignorance at one time and of knowledge at another is of no effect. If the plaintiff made any particular discovery, it should be stated when it was made, what it was, how it was made, and why it was not made sooner. Hardt v. Heidmeyer, 152 U. S. 547, 559, citing and approving Godden v. Kimmell, 99 U. S. 201, 211, and Wood v. Carpenter, 101 U. S. 135, 140. See also Foster v. Mansfield, etc., RR. Co., 146 U. S. 88. And

especially must there be distinct averments of the time when the fraud, mistake, concealment, or misrepresentation was discovered, and what the discovery is, so that the court may clearly see whether, by the exercise of ordinary diligence, the discovery might not have been before made. Stearns v. Page, 7 How. 819, 829. See also Badger v. Badger, 2 Wall. 87, 94, 95; Foster v. Mansfield, Coldwater, &c., Railroad, 146 U. S. 88; Halstead v. Grinnan, 152 U. S. 412; Wood v. Carpenter, 101 U. S. 135, 140; Richards v. Mackall, 124 U. S. 183; Felix v. Patrick, 145 U. S. 317; Evers v. Watson, 156 U. S. 534; Ware v. Galveston City Co., 146 U. S. 102; Wollensak v. Reiher, 115 U. S. 96.

3. The rule does not require actual knowledge to sustain the defense of laches. Means of knowledge is equivalent to actual knowledge. Teall v. Slaven, 14 Sawyer, 364; Simmons Creek Coal Co. v. Doran, 142 U. S. 417; Johnston v. Mining Co., 148 U. S. 360; Percy v. Cockrill, 10 U. S. Ap. 574; Wood v. Carpenter, 101 U. S. 140; Wollensak v. Reiher, 115 U. S. 99; Swift v. Smith, 79 Fed. Rep. 712

714.

4. The complainants' laches in the former suit is sufficient per se to bar recovery. Johnston v. Standard Mining Co., 148 U. S. 360; Willard v. Wood, 164 U. S. 502.

5. The bill does not allege a cause of action in the complainants. The wrong alleged, if any, was not a wrong done to them, but to Kitty Ann Whelan, whose suit by the committee abated and has not been revived. Boardman's Case, 2 Bland, 85, 98; Shelford on Lunacy, 208; Cain v. Warford, 3 Md. 454, 461; Alexander's Ch. Pr. 238. On abatement it became necessary to revive in behalf of those claiming authority to continue the suit. Rule No. 50, Supreme Court of the District of Columbia. Rule No. 56, Supreme Court of the United States.

Mr. Justice MORRIS delivered the opinion of the Court:

While it is startling to find a bill in equity filed to procure the annulment of a deed of conveyance now nearly fifty

Opinion of the Court.

[18 App. eight years old, and the defense of laches and long delay is one that naturally suggests itself to the consideration of every reasonable person, yet we are of opinion that, in view of the allegations of this bill of complaint and of the extraordinary circumstances therein stated, this case is not one to be disposed of on demurrer.

Now,

Three serious charges of fraud are made in the bill, two of them of an exceedingly grave nature. The first is the procurement of the deed of July 15, 1843, by Thomas Connelly from the imbecile under his control: the second is the alleged fraudulent combination and compromise effected between Mary J. Welch and Susan A. Beall after the death of Catharine Ann Whelan to divide the property of this latter between themselves in fraud of her next of kin and heirs-at-law; and the third is that of fraudulent abstraction and concealment of papers from the files of the court. while it is true that the defense of laches may be availed of on demurrer, where it is plain on the face of the bill of complaint that there has been undue delay on the part of the complainants to assert their rights, and no sufficient reason is set forth to excuse such delay, yet it is well-settled law that this defense will not be sustained upon a demurrer, when the bill distinctly charges fraud, and it appears that the complainants have instituted their proceeding within a reasonable time after their discovery of the fraud. Story's Equity Jurisprudence, Sec. 1520; Michoud v. Girod, 4 How. 503, 560; Badger v. Badger, 2 Wall. 87; Baker v. Whiting, 3 Sumner, 475.

The allegation here is that the complainants had no knowledge of the fraud until within three years before the institution of the suit, and then only a vague suspicion, and that they had no actual proof of it until within one year before the suit; and if this be true, there is certainly no unreasonable delay in the assertion of their rights. Whether they might not, with the exercise of diligence, have discovered the fraud at some earlier time may be a matter for consideration when all the circumstances are developed; but the reasons assigned in the bill for their failure to do so are at least plausible,

especially when we consider the situation of the parties and the circumstances of the case. Moreover, if the right of the appellants to institute inquiry and to take action is to be dated from May 23, 1891, when Catharine Ann Whelan died and their title accrued, they would be far within the statutory period within which their title, if a legal one, could be enforced at common law, and within which, therefore, the doctrine of laches would enforce no bar in equity.

But we forbear to make any further comments on the law of the case at this time, inasmuch as anything which we might now say would have a tendency to embarrass its consideration, when the case shall have been fully developed by answer and testimony. All that we now decide is that in our opinion the bill of complaint sets forth a case which requires an answer and which should not be disposed of on demurrer. It may well be that the defense of laches will ultimately be made to appear to be a proper defense, and that the bill should be dismissed on that ground alone, if on no other. But such conclusion, if reached at all, should be reached only after the full discovery to be made by an answer and after such testimony thereafter as might be required and might be available. And it should be reserved to the defendants in the cause to make the defense of laches in their answer and at the hearing.

It is our opinion that the decree of dismissal should be reversed, with costs, and that the cause should be remanded to the Supreme Court of the District, with directions to vacate such decree, to overrule the demurrers interposed by the defendants, and to require the defendants to answer the bill of complaint, and for such further and other proceedings as may be just and proper and according to law. And it is so ordered.

An appeal to Supreme Court of the United States was prayed and allowed.

Syllabus.

IN RE MILLETT.

[18 App.

PATENTS; ANTICIPATION.

1. An application for a patent is properly rejected upon a reference to a patent granted three days before the application was filed, where the patent, although not describing or claiming the invention, has annexed to it a drawing showing the invention; the failure of the patentee to include the device among the claims of his own invention, implying either that he abandoned it to the public, or that he regarded it as well known to the art. The patent is evidence of the state of the art at the time the drawings and specifications upon which it was afterwards granted, were made, and it is the state of the art and not the patent which constitutes anticipation.

2. Where an applicant for a patent claims a steam-gage having a tapering end so that it may be secured in place without soldering, and a reference to a patent shows a similar gage, but contains no statement that solder is not used, the patent is an anticipation, there being no reason for assuming that the patentee intended to use solder in the absence of a necessity so to do.

No. 172. Patent Appeals. Submitted March 15, 1901. Decided May 21, 1901.

HEARING on an appeal by an applicant for a patent from a decision of the Commissioner of Patents, rejecting his application. Affirmed.

The facts are sufficiently stated in the opinion.

Mr. William H. Singleton for the appellants.

Mr. W. A. Megrath for the Commissioner of Patents.

Mr. Justice MORRIS delivered the opinion of the Court:

This is an appeal from a decision of the Commissioner of Patents wherein he refuses to issue letters patent to the appellants, Joshua H. Millett and Samuel G. Reed.