Opinion of the court. of the second claim, to wit: "The process substantially as herein described of treating bark-tanned lamb or sheep skins by means of a compound composed and applied essentially as specified." Here heated fat liquor is clearly one of the constituents of the compound. A chemist proved on the trial that heat was an element essential, in a large degree, to the efficacy and utility of both the simple liquor and the compound, when so applied. We think the better opinion is, that the first claim was intended to cover, and does cover, only the use of heated liquor. The first instruction might well have been refused for the reason, also, that it was too broad as to this point. II. The next prayer and the action of the court are thus set forth in the bill of exceptions: "2. The defendant's counsel also requested the said judge to charge that the proper construction of the patent is that the fat liquor should be applied at or near the boiling-point, and if the jury believe that the application of fat liquor at such a temperature to leather is injurious and pernicious, the patent is void for want of utility, and the defendant entitled to a verdict; but the said judge refused so to charge the jury, but modified the said request and instructed the jury that the proper construction of the second claim of the patent, so far as it relates to the application of heat, is that the compound, composed of fat liquor and the other ingredients required, should be applied at or near the boilingpoint, under the common knowledge of persons skilled in the art of treating this leather, to procure softness and pliability, would make them wait until it was partially cooled before its application, and if the jury believe that the application of fat liquor at such a temperature to leather as is required by the specification under this qualification is inju rious and pernicious, the patent is void for want of utility, and the defendant entitled to a verdict; and the counsel for defendant then and there duly excepted." We think this ruling of the court was correct. III and IV. These exceptions are sufficiently answered by what was said by the Circuit Court as to the second prayer. Syllabus. V. This instruction was properly modified. The state of the evidence hardly justified the judge in giving any instruc tion upon the subject to which it related. The remaining five exceptions may be grouped and disposed of together. Neither of them requires any special remark. We are satisfied with the rulings of the learned judge who tried the case as to each and all of them. We find nothing in the record of which the plaintiff in error has a right to complain. JUDGMENT Affirmed. Dissenting, Justices FIELD and HUNT. THE MAYOR v. RAY. A city corporation, the charter of which gave to it the usual powers formerly given to such corporations, but which did not give to it the power to borrow money, being, and, for some time having been, pecuniarily embarrassed, issued its checks, in form negotiable, and drawn by the mayor and recorder of the city on the city treasurer The checks were presented to the city treasurer and by him indorsed with his name and the date of his indorsement; it being the practice of that officer, in the then embarrassments of the city, thus to indorse checks when the city was not in funds to pay them, in order that the checks might thereafter draw interest; as it was understood that they would do. The checks were then taken by the holder, and, according to a then prevalent custom to pay them for taxes, were paid to the treasurer of the board of education of the city in discharge of school taxes. This officer (again, according to a then prevalent custom) sold them to A. (selling them for eighty cents on the dollar), and with the money discharged the salaries due by the city to the teachers of its public schools. On suit by A. against the city, the court below excluded evidence tending to show fraud and want of consideration, and authority to make them, in the issue of the notes ; and held that under its charter the city could issue promissory notes, and that if signed by the proper officers and given for & good consideration, they would be legal and obligatory; that a usage to reissue such securities was good, and that though upon their face overdue they were payable on demand, and not to be deemed dishonored Syllabus. so as to let in defences against a subsequent holder, until the lapse of a reasonable time for making demand; that the reissue, if made with the sanction of the city authorities, would be valid, and that such sanction might be presumed from circuinstances. It gave judgment accordingly. On the case coming here, the judgment was reversed; five judges only out of eight, of which the court was then composed, concurring in the judgment of reversal. Four of these judges placed the judgment on the broad grounds: 1. That municipal corporations have not the power, without legislative authority expressly or clearly implied, to borrow money, or to issue notes, bills, or other securities of a commercial character, free from equitable defences in the hands of bona fide holders. 2. That such corporations are of a public character, instituted for purposes of local government, and constitute part of the domestic government of the state; that the power of taxation is given to them for the purpose of raising the means of carrying on their functions, and that the creation of such special power is exclusive of others. 3. That the officers of such a corporation cannot, like the officers of a private corporation, create, by their acts, an estoppel against the corporation, its taxpayers, or people, so as to render illegal issues of ordinary city drafts or vouchers (not authorized by law) valid in the hands of holders for value; that such holders are affected with notice of the illegality. 4. That certificates of debt, city warrants, orders, checks, drafts, and the like, used for giving to the public creditors evidence of the amount of their claims against the city treasury, are valid instruments for that purpose, and may be transferred from hand to band; but that they are not commercial paper, in the sense of creating an absolute obligation to pay them, free from legal and equitable defences; and that the holder takes them subject to such defences. These judges admitted, however, and as of course, that when power to borrow money and to issue bonds or other securities of a commercial character therefor is given to a municipal corporation, such securities will possess the usual qualities attaching to like securities issued by private corporations. The remaining one of the five justices-not agreeing to all thus declared, and holding that the city, unless clearly forbidden by its charter, could issue negotiable notes to pay its debts, and that such notes would be subject to the law governing negotiable paper, and holding especially that the corporation, having received and still holding the money for the notes, could not repudiate its contract to pay-put his concurrence in the reversal on the narrower grounds: 1. That the judge erred in charging that though the checks had been presented for payment, and payment had been refused; and though the time of such presentation and refusal had been noted on them, the checks were not to be deemed dishonored so as to let in defences between the corporation and a subsequent holder. Statement of the case. 2. That the plaintiff being thus not a holder bona fide, the court erred in excluding the offers to show fraud, corruption, or want of authority in the issue, of the checks. 3. That it erred in charging that if it was the usage of the corporation to reissue its securities by sale in the market, after such securities had been fully paid and satisfied, such reissued securities were obligatory upon the corporation. ERROR to the Circuit Court for the Middle District of Tennessee; the case being thus: Ray sued the mayor and city council of Nashville to recover the amount of nineteen corporation drafts, or orders, ranging from a few dollars in amount to over $1000, and together amounting, with interest, to over $9000. In form, they were drawn by the mayor and recorder upon the city treasurer, payable to some person named, or bearer, and were impressed with the city seal. The following is one of the orders, and shows the form of them all. No. 3521. $1000. NASHVILLE, December 23, 1868. Treasurer of the Corporation of Nashville. Pay to A. J. Duncan, or bearer, one thousand dollars, on account of water-work. A. E. ALDEN, W. MILLS, Recorder. [Indorsed:] THOS. G. MAGRANE, Treasurer, December 26, 1868. This was the form in which all city dues were usually paid. The indorsement by the treasurer was made when the orders were presented to him. Evidence was given by the plaintiff tending to show that it had been the custom for many years, when the treasurer failed to pay such checks on presentation, for him to write his name on the back, with the date of presentation, and afterwards, in the payment of such checks, to allow interest from that date, and that it was usual to present such checks for indorsement to draw interest when it was known there were no funds for their payment; also, that it was the well-known custom of the Statement of the case. proper collecting officers of the corporation to receive such checks for taxes and other dues of the corporation; that at the time these checks were issued, and at the time they were bought by the plaintiff, the city was largely involved in debt, and that many such checks were outstanding unpaid, and were bought and sold in the market, and that nearly all the city taxes were paid therewith; that for some time before the plaintiff purchased the checks in question the taxes for the support of public schools were collected and paid over to the treasurer of the board of education in such checks; and for about five months before, it had been the practice of such treasurer to sell such checks and to use the proceeds in payment of teachers; also, that all the checks sued on (except one for $1000, payable to Julius Sax), were so received for taxes, and paid to the said treasurer of the board of education, and by him sold soon after receiving them to one McCrory as agent of the plaintiff to buy the same, at the rate of eighty cents on the dollar, and the proceeds paid to teachers; that the check payable to Sax was purchased from him by McCrory, as the plaintiff's agent, for $800, being one of sixteen checks of $1000 each, issued by order of the chairman of the finance committee of the city council without any order of the council, and hypothe cated with Sax as security for a loan of $12,000, payable in four months (half of which was made in city checks), power being given in the loan note to sell the hypothecated checks, if the loan was not paid when due. Sax sold the check in question to the plaintiff within a week after receiving it. The plaintiff also offered the evidence of the city recorder to show that the checks sued on were made in the usual course of business of the corporation and for corporation purposes; also, evidence tending to show that the city collector, in collecting checks for taxes, was in the habit, in making change, of paying out checks previously collected, and that the mayor and council were informed of the prac tice pursued by the collector of reissuing checks which he had received in payment of taxes by paying a portion of them over to the board of education, and knew of the prac |