Record and brief — Enoch Piper, Appellant, vs. George T. Moon et al

Supreme Court brief1875

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SUPREME COURT OF THE UNITED STATES.

No. 240.

ENOCH PIPER, APPELLANT,

Us.

GEORGE T. MOON ET AL.

BRIEF FOR APPELLANT.

SUPREME COURT OF THE UNITED STATES.

No. 240.

ENOCH PIPER, APPELLANT,

| Us.

GEORGE T. MOON ET AL.

BRIEF FOR APPELLANT.

BOSTON :

ADDISON C. GETCHELL, LAW PRINTER,

53 WASHINGTON STREET,

1875.

BRIEF FOR APPELLANT.

This is an appeal from a final decree of the Circuit Court of the

United States for the Southern District of New York.

Enoch Piper (the appellant) brought suit in equity in the Circuit

Court against George T. Moon and others (the appellees), charging

in his bill infringement by them of United States letters patent

granted to him March 19 1861, for an improvement in the method

of preserving fish and other articles, and praying injunction to re-

strain such infringement, and for profits and damages.

All the defendants named in the bill (the appellees) duly filed

their answer, denying that the complainant was the original and first

inventor of the said improvement, and alleging that the same was,

before the invention thereof by the complainant, known to and used

by various persons, and described in a certain printed publication

numed in the answer.

Replication was duly filed, and thereupon proofs were taken by

complainant and defendants. |

Upon hearing in the Circuit Court on pleadings and proofs it was

decreed by the court that the bill be dismissed with costs to the de-

fendants ; from which decree this appeal was taken.

The defendants at the hearing contended that on the proofs the

bill should be dismissed because of alleged public use of the im-

provement patented to the complainant as aforesaid, before the date

of his invention thereof. 1st, in the process of freezing ice-cream ;

2d, in certain apparatus alleged to have been devised and used by

one William Davis, at Northwood and Columbus, Ohio, and De-

troit and Adrian, Michigan.

The Error assigned by the appellant is, that the Circuit Court

held, on the proofs, that the complainant was not the original and

first inventor of the improvement patented to him as ‘aforesaid, be-

cause of use thereof befure the date of his invention thereof in the

process of freezing ice-cream, as appears by the opinion of the court

(Rec. p.. 279), and thereupon dismissed the bill.

CONSTRUCTION OF THE PATENT.

The patentee describes his invention as a method of preserving

fish, &c. 3 |

The term “preserving” as used in the patent clearly includes

Sreezing and keeping frozen.

The description and specification make the object of the invention

plain. It is to provide a mode of freezing fish and other articles of

food, and preserving them in a frozen state, by which they may be

conveniently kept in any desired quantities and for any desired

length of time.

The patentce refers to the common method of packing fish “with

erushed ice in barrels or boxes,” which, he says, “owing to the melt-

ing of the ice, and the consequent moistening of the fish, fails to

preserve them fresh and good for more than a month at most.”

He states that his invention “consists in a method of preserving

fish and other articles by placing them within a-chamber and cooling

the latter [meaning of course the air in it] by means of a freezing

mixture, so applied that no communication shall exist between the

interior of the preserving chamber and that of the vessels in which

the freezing mixture is placed ;” and he says, “the ¢emperature of the

preserving chamber can be maintained for any length of time below

the freezing point, and fish, surrounded by this dry and freezing

atmosphere, will be preserved as fresh and good as when first caught,

and for a much longer period than by any other method known. to

me.” | |

He says that the apparatus for freezing the fish, &c., and keep-

ing them in a frozen state may be constructed “in various ways and

of different shapes,” and that the apparatus shewn in ‘the drawing will

suffice to illustrate the principle and mode of operation. And after-

ward, “I do not desire to be understood as confining myself to the

use of the specific apparatus above described.”

The described method is this: the atmosphere of the chamber. in

which the articles are placed, which is kept from communication with

CTI eee 08a

the external air by means of non-conducting walls, is reduced to, and

kept at, a temperature below the freezing point of water by means of

a freezing mixture having no contact with the freezing atmosphere

of the chamber; and the fish, &c., immersed in this atmosphere are

frozen and kept so, and also kept from deterioration as if they were

in a natural freezing atmosphere.

This atmosphere, in which the fish, &c., are frozen and kept, is

described in the patent as a “dry and freezing atmosphere.” :

The apparatus referred to for illustration, when used as described

in the patent, is adapted to produce such an atmosphere; viz.,

SJreezing, becanse exposed to the influence of the freezing mixture

and protected by double non-conducting walls from the outer air;

and dry, because there is no communication betaveen it and the freez-

ing mixture or the outer air.

The claim is in apt words to secure an invention such as has been

described. It is—

“Preserving fish or other articles in a close chamber by means of

a freezing mixture having no contact with the atmosphere of the

preserving chamber, substantially as set forth” (Ree. p. 20).

The practical result accomplished by the invention thus patented

is, that in a room or chamber suitable for storing fish, &c., in desired

quantities, and from which they may be taken as desired, the atmos-

phere is kept below the freezing point and in a dry state (p. 1).

The close chamber, with the atmosphere of which the freezing

mixture is not in contact, was «an old means; the old ice-cream

freezer embodied this.

The Piper patent is for the described mode of using such a close

chamber, &c., for the purpose of preserving articles of food. It is

for “ preserving fish or other articles in a close chamber,” &c., sub-

stantially as set forth.

There are two modes of using such a close chamber, &c., for such

purposes. One is by contact with the cold walls, on the other side

of which lies the freezing mixture. This can only be employed for

liquids, which are capable of resting in such contact, and having the

cold therefrom transmitted through the liquid mass. This was the

——

mode of preserving ice-cream, in a frozen state; and beyond this the

art neyer progressed until Piper’s invention. |

The other, and the new mode, described and: patented by Piper,

is clearly set forth in the body of his specification, and excludes the

old mode. — Piper’s mode is to surround the articles to be preserved

by producing and maintaining a dry and freezing atmosphere in the

close chamber, and placing the article in this atmosphere, to be sur-

rounded by it. This mode is applicable without limitation to all ar-

ticles of. food. It is absolutely new, and it is highly useful.

The patent cannot be construed as for the apparatus described.

It is not a patent for a machine or a manufacture within the meaning

of the act of 1870, § 24, allowing patents for an “art, machine,

manufacture or composition of matter,” but it is a patent for an im-

proyement in the art of preserving fish and other substances from

decay. The patentee calls it a method. It is really for a peculiar

process,. .Neither term is used in the patent act, but either .suffi-

ciently indicates the nature of the invention, and each is synonymous

with art, as that term is used in the act.

ae Corning v. Burden, 15 How. 252.

Curtis on Patents, §§ 9-18.

Tilghman v. Werk, 2 Fish. 518.

O’Reilly v. Morse, 15 How. 62.

It is plain that Piper’s-actual invention was. of the process or

method above described, of preserving fish, &c., by artificial congela-

tion, which was capable of being carried out in various forms, and

has, in fact, been. so carried;out by himself, always with very valua-

ble results.

The court, having ascertained what the invention actually was,

will give to the patent such a construction as will secure the whole

of that invention, interpreting the language of the specification

liberally for that purpose, if necessary.

Curtis on Patents, §§ 225, 231, 453, 456, and cases cited.

If the construction here put upon the patent is correct, the ques-

tion of the novelty of Piper’s invention is, not whether the appa-

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ratus deseribed in the patent was new, nor whether any apparatus

was in existence before his invention which might have been so used

as to practise the invention; but whether the patented process as

described was in fact so practised.

And to overthrow his patent for want of novelty, it must be proved

that:before his invention fish..or cther articles had been frozen and

preserved by a process in which the articles were frozen and pre-

served by immersion ijn the freezing atmosphere of a chamber, that

atmosphere being reduced and kept below the freezing point by a

refrigerating mixture which had substantially no ‘communication

with such atmosphere.

NOVELTY. OF THE PATENTED ‘INVENTION.

It is not disputed that the invention. dates from the spring of

1858 (Ree. p. 19).

Lhe appellees contend that the patented process was anticipated

by, Ist, prior use of the common ice-cream freezer; 2d, prior use of

certain refrigerating apparatus by William Davis.

I. Tae Ice-CrEAM PROCEss.

. This has been a matter of common knowledge since long before'the

date of Piper’s invention; and it is extraordinary, if it is the same

process as his, that the point never was suggested before.. This pa-

tent was long before the Patent Office ; it was for years bitterly con-

tested in the Boston suit; and it has never before been supposed. by

anybedy that it was to be destroyed by one of the commonest of

household and public processes.

The common ice-cream process is familiar. It is -deseribed by

appellees’ witnesses, S. H. Davis, Dartois, Day and June (the wit

ness Hewlett apparently had a process peculiar to himself), and is as

follows: the cream is put into a metallic can, which is covered: by

an ordinary cap cover, and the can is placed in a tub larger than it-

self, the space between the two being filled in with ice and salt.

The can is then rapidly rotated, first one way then the other, so as

to bring all parts of the cream in it in contact with the cold metallic

surface, and so freeze it. The rotating of the can is sometimes

omitted ; but whenever this is done the same agitation of the cream,

and consequent exposure to the metallic surface, is produced by

“working” or “beating” it with a spaddle. The same result is ob-

tained in substantially the same way, whether the can is rotated or

the cream “ worked ” (Rec. Davis, Day, Dartois, June, Neercamer).

Hewlett does indeed say that he never practised nor heard of the

agitation of the cream during the process (Rec. pp. 220-222).

It is not important, in the view here taken of the ice-cream process,

whether this is so or not; but it is certainly extraordinary if Hewlett,

who has made ice-cream for himself and others for years, never heard

of what all the other witnesses describe as the ordinary and proper

way of making it. His way, as the next witness says, “ would not

be proper for to make ice-cream.” It is not “the right way” (Rec.

p. 223). :

The differences between Piper’s process and the ice-cream process

are apparent. : 7 |

1. The ice-cream freezer is only designed to freeze liquids, as

quickly as possible, by exposing all parts of the liquid to a cold me-

tallic surface. :

Piper’s invention contemplates nothing of this kind. It is intended

and expressed as meant to freeze solids. To freeze a liquid by his

process would require a third vessel to hold the liquid exposed to the

action of a freezing atmosphere.

2. In an ice-cream freezer agitation of the liquid to be frozen is

necessary to accomplish the desired result.

No such movement of the thing to be frozen is necessary or

practicable or of advantage in Piper’s process.

3. In the process of freezing ice-cream, by whatever method, one

essential element of Piper’s process — the presence of a freezing at-

mosphere in the chamber, enveloping the article to be frozen —is

wanting. ) :

As far as this is concerned it is of no importance whatever

whether the can is full, or half or quarter full, of cream. There

is, of course, in each case a cold atmosphere above and resting on the

surface of the cream; but there is no freezing atmosphere pervading

“4

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PE DS EDIE PS CELEB EA AE V8 P Re a

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the chamber’ and enveloping the article to be kept. “The cream in

the one case takes the place of the atmosphere in the other.

This difference alone is, it is submitted, decisive.

As to the coating with ice spoken of in the appellant’s patent, —

1. That coating with ice is'no part of the invention. The pat-

entec merely says, “The fish or meats may, if desired, be covered

with a coating of ice by immersing them a few times in ice-cold

water, or by applying the water with a brush or swab several times,

forming a coat of about one eighth of an ineh in thickness ; ” and that

when this is done he applies to the fish, when they are to be kept an

unusual length of time, a cover of cloth, &e. But he adds, “I do

not desire to be understood as confining myself to the use of the spe-

cific apparatus above described, nor to the use of cither or both the

preliminary processes of freezing and coating; but I have described

the mode of operation which by experience I have found best for

preserving the most delicate varieties of fish.”

2. That the freezing atmosphere in which the fish, &c., are kept

is equally important, whether the fish are coated with ice or not.

There is no evidence that a common ice-cream freezer ever was,

in fact, used in a way to anticipate the patent.

We do not suppose that the accidental freezing of half a chicken

and some bread, by Mrs. Davidson in 1857, in the wilderness of

Northern Wisconsin, will be seriously urged as a defence (Ree.. p.

126).

That Hewlett froze a small fish in an ice-cream freezer as an exper-

iment for this case, is immaterial. Doubtless the same could have

been done in many anapparatus well known before Piper’s invention.

II. Prior use By Winiram Davis.

Most of the evidence in the case relates to alleged use of the ap-

pellant’s. process by. William Davis, at various times, up to his

death in 1868. Only the evidence relating to his alleged use be-

fore June 1858 need be discussed.

It mainly comes from his two sons, S. H. and. D. W.. Davis.

The testimony of the other witnesses can be considered only as

ARPT SI RANE ON EN tee emanates —

sere Attain

evidence corroborative of theirs. These two were with their father,

except for very short intervals, up to his death ; were in business with

him most of the time, and are familiar with all his proceedings. This

defence rests upon their evidence.

Both of them are interested witnesses. Each owns a third of the

Davis patent of 1868, by license under which the appellees are

working in New York; and the remaining third belongs to their

father’s estate. They have assumed the defence of this suit.

S. H. Davis, Ree. p. 85.

D. W. Davis, Rec. p. 144.

Both testify, from recollection, to matters which occurred from

fifteen to twenty years ago, and in a suit in which they have a great

personal and pecuniary interest.

S. H. Davis gives the history of his father’s proceedings much

more fully than his brother. The silence of the latter upon many

points is significant.

The Northwood Apparatus of William Davis.

The first apparatus that S. H. Davis ever knew of his father's

using, was constructed and used at Northwood, a few miles from the

city of Columbus, Ohio, in 1851 and 1852. At that time his

apparatus was this :—

“He had several large ice-cream freezers. He put one of them

into a flaring tub; then he put the flaring tub into a square box, and

packed the space between the flaring tub and the box with either

charcoal or sawdust, which was also packed underneath the flaring

tub and the freezer that I have mentioned; the freezer was in the

centre ; the freezer formed the preserving chamber” in which were

placed “meat, chicken, fish” (Rec. pp. 86, 92, 93).

Model Exhibit C represents the apparatus, except that there

was a drain-pipe (p. 87).

His father had two or three apparatuses of this kind in use at that

time, and used them daily (p. 87).

They were situated sometimes in the cellar of the house, some-

times one of them upstairs; and the use was open and public

(p. 94).

‘il

They were used to freeze and preserve fish, meat and chickens,

daily (p. 87).

D. W. Davis does not testify to the use of any apparatus at

Northwood.

As to the use of this apparatus at Northwood, the essential testi-

mony comes from Samuel Davis. The evidence of Neereamer and

Fought, who also testify to a use at Northwood, will be examined

separately.

Samuel Davis we expect to shew to be a witness whose evidence,

not only on this but on all the points in the case, is not to be

reccived.. 7

On the 6th of January 1872 he swore to an affidavit in this cause,

in which he described as the apparatus used at Northwood, one en-

tively different from that which he now swears was aclually used

there.

He then said, “In the year 1852 said William Davis had in-

vented, and at that time was using, an air-tight box in which to

place fish to be frozen,.or other perishable articles to be preserved.

Within this box was placed an air-tight metallic pipe within which to

place the ice and salt when it was desired to freeze the contents of the

box, or ice alone when it was not desired to freeze, but simply to pre-

serve, such contents. The box and pipe were so placed in relation to

each other that when in operation there was no communication be-

tween the tnterior of the box and that of the pipe, so that the articles

‘in the box could not be brought into contact with the ice in the pipe,

or receive any morsture from the melling ice in the pipe” (Rec,

p- 93).

Ho now attempts to explain this by saying that it was a mistake

of the person who drew the affidavit (who, as will be seen, is forced

in this case to bear the burden of many remarkable mistakes of the

same kind).

But it is incredible that Davis could have supposed, when he

swore to that affidavit, that its plain and explicit language described

the apparatus which he now says was used at Northwood in 1851 and

1852.

He either knew what he was swearing to, or he did not: if he did,

he swore to what he knew was false; if he did not, he shewed a

recklessness which should destroy his credit as a witness. _

When he made this explanation he had forgotten that he said,

in the same affidavit, the “refrigerating apparatus to which I have re-

Jerred above [being the one described in the quotation already made ]

was in use by said Davis at his place of business in Columbus,

Ohio, and during and after the year 1856 at his place of business in

Detroit, Michigan, and was daily opened in the presence of his cus-

tomers for fish. In addition to the device, which I have already

described for the purpose of freezing fish, and which I identify as

shewn in model marked Exhibit B, said Davis employed other de-

vices,” &c.

He now says.the device shewn by Exhibit B never was used at

Columbus nor at Northwood. :

The attempted explanation is preposterous in the face of the lan-

guage of the affidavit itself, and it leaves the witness in worse condi-

tion than before he made it.

On direct examination he says that his father made this box ;

afterward, on cross, that he does not know who made it, nor where

it eame from.

He says in his direct examination that the apparatus, which he

now says was used at Northwood, was there “used daily for freezing

fish, meat and chickens” (Rec. p. 87). But on cross it appears that

he does not know how often it was so used: “it was seldom; might

have been every week, or might have been every two weeks” (p.

95).

It was only when they wanted to keep the articles for a few days

that. it was so used; and when it was, it was generally for meat and

chickens (p. 95). But to keep these. articles for a few days only,

there was no necessity of freezing them at all. For that length of

time it is better not to freeze, as that is always to some extent. in-

jurious to the flavour of the article. Davis had a refrigerator there

(as will be shewn) which would keep the articles perfectly for this

length of time without freezing. The only object was to keep the

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and

articles “for family use, and for visitors who wanted them;

“no great amount was kept in them” (p. 95).

Sometimes they used ice and salt, and sometimes ice alone (pp.

97, 98). Now fish and meat and chickens cannot be frozen at all by

the use of ice alone, except by actual contact.

There was no moisture inside the can (p. 96). But fruit and

vegetables in it “did not keep well, on account of the dampness ;

they would decay and mould” (p. 95). This is not only a contra-

diction, but an admission that Piper’s process was not practised.

There is no dampness or mould or decay in a dry and freezing

atmosphere (p. 96).

The meat and poultry were sometimes frozen, sometimes not. He

“can’t recollect whether the fish were always frozen or not; they

were frozen, though there might be some that were not.” He can-

not tell how many times fish were frozen, nor how many at a time

(p. 97). The fish were placed in the bottom of the can, “ which

was very small,” (pp. 95, 96).

This is all that he can say as to the actual use of these boxes.

Kept a milk-farm at Northwood, and had a large refrigerator

there in the cellar, used to keep the milk in (pp. 93, 94). What

the construction of this refrigerator was will appear presently.

As it was used for milk, it evidently was not an, arrangement for

Sreezing anything (p. 96).

The witness does not know what became of these boxes. They

were not taken to Columbus when Davis moved there in 1852 (pp.

94, 95).

And here it may be remarked, that every apparatus said to have

been used by William Davis before Piper’s invention either mysteri-

ously disappeared or was destroyed ; not one is now In existence.

S. H. Davis cannot remember the name of a single man employed

at Northwood.

The appellant has been able to find three, Farr, Finger and Boyd,

whose testimony will perhaps account for Davis’ forgetfulness.

J. F. Neereamer is produced to support S. H. Davis.

He testifies that he was employed by William Davis, at North-

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wood, at various times; as he was wanted, as confectioner to make

ice-cream and cakes, during the sammer of 1851. During that

time William Davis frequently consulted with him, “in regard to

freezing matters, as to the length of time, the quantity of ice and

‘salt that it would require to freeze creams, with a view of apply-

ing it to meats. He had a large box made and placed in a sep-

arate apartment in the cellar of his house, separate from the cel-

lar where I made the cream. He frequently used some worn-out

ice-cream freezers, in which he packed spring chickens, packed in

ice and salt; these were left, I can't tell you how long, in these

freezers, but were removed to this box or chest, whichever it might

have been, where they were kept for use as they might be required”

(Rec. pp. 206, 207).

. It wili be noticed that Neerenamer does not say whether or not

there was any communication between the freezing mixture and the

atmosphere of the chamber in which the things were placed and

frozen. He does not know the process at all.

He knows nothing about the preserving of anything, except

chickens (pp. 206, 208). All that he knows about that is, that

Mrs. Davis once gave him out of another box a pair of chickens which

were frozen (pp. 206, 207).

What the construction of this box was he knows wethlen bout

(p. 207). ,

The only reason he has to suppose that this pair of chickens, taken

out of a box of which he knows nothing, were frozen in an appara-

tus of which he pretends to know something, is, that “all the chickens

that went into that chest went through the same process” (p. 208).

But this process was freezing in the ice-cream freezers, and all he

knows about this is, that he once was given a pair of chickens out of

the other box, which were frozen.

This evidence comes to this: He says Davis used to freeze

chickens in. ice-cream freezers. He knows it only because he was

once given a pair which had been in another box ten days, and

these were frozen. _He-knows that these were frozen in ice-cream

freezers because all chickens in that other box were so frozen. He

knows that because he was once given a pair, and soon round again.

‘This ‘other box, it will hereafter appear, was a large common re-

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frigerator, used mainly to keep milk in. Of course there was no

freezing temperature in that. How then could these chickens have

been frozen?

First he says, Davis “frequently consulted with me in regard to

freezing matters, as to the length of time, the quantity of ice and

salt that it would require to freeze creams, &c.” (p. 206). On

cross-examination he says, “Mr. Davis was very particular about

his secret, aud did not consult me much about frigorific mixtures ”

(p. 208).

He says that William Davis’ process of freezing and preserving

chickens was secret (Rec. p. 208). Samuel Davis, it will be remem-

bered, says it was open and public (p. 96).

Which tells the truth, or does neither; and was there no such pro-

cess practised there at all? We submit that the prouf is conclusive

that there was not.

John Boyd was employed by William Davis, at Northwood, from

August 1850 till September 1852, as a man-of-all-work, and was

there when Davis left it (Ree. pp. 60, 61).

The second summer Boyd “was abont the house mostly,” and used

to freeze ice-cream in the cellar (Rec. pp. 60, 62).

Except the common ice-cream freezers used for cream alone, and

a large ordinary refrigerator in the cellar, used for milk principally,

there was no refrigerating apparatus at Northwood at all while Boyd

was there, and no artificially frozen fish or meat or poultry (pp.

60, 61, 62).

He describes this large refrigerator as “made of boards — common

boards. The lid of the box was raised by a pulley and weight, so

that it would remain up when raised. The box was made of two

thicknesses of boards. They told me there was chareoal between

the boards, to keep the milk cool. There was a partition at one end,

in which we could put a bushel or two of ice. There was no salt

used. I put pieces of icc around the pans to keep the milk cool.”

“The part partitioned off in which the ice was put had a separate lid

to it”(pp. 60, 61).

The box was left there when Davis moved to Columbus (pp. ‘61,

62).

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Nothing ever was, or could be, frozen in this box, except by actual

contact with the ice. Samuel Davis does not pretend to say that

there ever was. Indeed, he is careful to say as little as possible

about this refrigerator.

This is the box that Neereamer’s chickens were taken out of after

they had been in there ten days. Plainly they were not preserved

by Piper’s process. :

Joseph Finger was in William Davis’ employ from the spring of

1851 for pretty nearly two years. He never saw any apparatus

there, except a large refrigerator for keeping milk, in using which

the ice was put into the bottom of the box, and the milk on the

shelves in the same compartment. (Rec. pp. 75, 76).

James Farr worked for William Davis, at Northwood, “from

about the middle of June 1852 till he moved to Columbus on the

Ist of September thereafter,” and then worked for him in Columbus

till October 22 1853 (Rec: pp. 73, 74). He says, “I did not see

anything, except an ice-box used for keeping the milk in, and an

ice-cream freezer; I did not see anything used for freezing meats or

artificial substances” (an evident misplacing of words). And he

never saw there any apparatus, except an ice-cream freezer, used for

freezing anything (Rec. p. 74), nor any frozen meat or fish or chick-

ens (pp. 74, 75).

There was, however, in the cellar at Northwood a large refrigerator

used for keeping meat, &e., but chiefly milk, in which ice was put

in the bottom of the same compartment in which the other things

were kept (p. 74). But Davis’ business was keeping a dairy, and

“he kept chiefly milk in the box” (p. 74).

Simeon Fought, for the appellees, testifies to seeing some sort of

a refrigerating apparatus at Northwood once while Davis was there

(Rec. pp. 211-214). |

He only saw it once, knows nothing about its construction, and

“cannot describe it,” not even where the ice was in it. He thinks

there were some fish in it. Ie thinks some chickens were in it, and

that they were frozen, because they looked like some chickens which

he saw upstairs, which he says were frozen. |

1852.

It is plain, from his description of it, that the apparatus which he

saw was the large milk refrigerator which was there in the cellar.

This witness also swore to an affidavit in this cause, in which ho

gave a description of the apparatus used at Northwood by Davis, as

he saw it; and said, “I was acquainted with William Davis during

his residence in the city of Columbus; was a visitor at said Davis’

when said Davis owned and resided at Northwood in 1852; Z have

Frequently seen, at said Davis’ residence (Northwood), refrigerators

for the preservation of fish, meats, poultry, Ge. “Have seen said

Davis take from these refrigerators fish, poultry, €c., in a frozen

state; and they were constructed in two separate apartments; to

Wit, one apartment to contain the articles to be preserved or frozen,

and the other apartment the refrigerants. Said Davis was using this

process publicly ” (Ree. p. 211).

It now appears that this affidavit was not true. Fought’s explan-

ation 1s given on page 211.

This is the evidence in regard to the Northwood use. We submit

not only that the appellees failed to prove it, but that the re-

sult of their attempt is to discredit the whole Davis defence. The

evidence to shew cither the existence or the use of apparatuses there,

involving the practice of the appellant’s invention, is weak and

untrustworthy in itself, and completely answered by the testimony

for the appellant.

Use at Columbus.

The Davis brothers testify to a use by William Davis, at Columbus,

in 1854 and 1855, of an apparatus said to be the same as the appel-

lant’s; and other witnesses swear to the sale of frozen fish by Davis

at that time.

The mere fact of such sale, if proved, would be of no avail, except

as tending to shew the truth of the Davis account of .how the fish

were frozen. So, as through the case, the essential evidence of this

alleged prior use comes from them.

William Davis moved from Northwood to Columbus in September

The apparatus said to have involved Piper’s invention was not used

till the summer of 1854.

S. H. Davis, Rec. pp. 89, 97, 99.

D. W. Davis, Rec. pp. 142, 143, 148, 150.

But Davis kept a hotel there, and was in the fish business mean-

time ; so he had even a greater ovcasion for freezing and preserving

there than at Northwood. Why he did not, if he had done it suc-

cessfully at Northwood, us is claimed, is not explained (S. H.

Davis, pp. 87, 143).

The apparatus said to have been used at Columbus was this, —

“It was one box packed inside of another, and the space between

the two was packed with sawdust. There was a partition off of one

end of the inside box about six or eight inches; the partition con-

sisted of tin. Then there was a lid on both boxes, a lid on the box

for the preserving chamber, and one on the chamber where the

freezing mixture was of ice and salt.” There was no atmospheric

communication, and the method of freezing was to put the fish into

the preserving chamber on shelves, so that the fish would not be

more than from four to six inches deep. The space partitioned off

was filled up with ice and salt. Exhibit A is a model of the inside

box.

| S. H. Davis, Ree. p. 89.

D. W. Davis, Rec. p. 142.

Two of these boxes were used at Columbus by William Davis at the

same time; cach was from four to five feet long and about three feet

‘in width and depth.

S. H. Davis, Rec. pp. 97, 98.

D. W. Davis, Rec. pp. 142, 143.

It will be remembered that in his affidavit of November 6 1871, S.

‘H. Davis describes the apparatus used at Columbus, and identifies

the model Exhibit B as a representation of it. This is entirely

different from the one which he now says was used there.

D. W. Davis, in his affidavit heretofore given, describes the same -

apparatus as his brother, and says that it was continuously used by

his father from 1854 to 1868 (Rec. p. 150). The rest of the case

~ will show how far this statement was true.

Pomp

‘He said, moreover, that up to 1867 his father was “engaged in

experimenting with various foriis and constructions of proper refri-

gerating apparatus for the purpose of his business.”

The contradiction between what these men once swore to and what

they now say, is destructive to both of their statements.

In Columbus there were three market days each week, and this

apparatus was used to keep fish from one market day to another ;

2.é., thirty-six hours.

S. H. Davis, Ree. p. 87.

D. W. Davis, Ree. p. 142.

So there was no need to freeze the fish to accomplish what was

wanted. It is never desirable to freeze when it can be avoided.

Ice and salt were used as a freezing mixture, and nothing else.

(S. H. Davis, p. 98.)

But the fish were sometimes frozen and sometimes not.

S. H. Davis, p. 98.

D. W. Davis, pp. 143, 148.

Why not always frozen? The supposed answer is, that sometimes

the apparatus was used to freeze, and sometimes to preserve without

freezing. But the object being to keep them only from one market

day to another, why the difference, especially when there was no

need to freeze at all? :

The fish were not always frozen, only “when they were in there

long enough.” (D. W. Davis, p. 143.) But they were never

there long cnough to make it desirable to freeze them.

Fruit and vegetables could not be kept in boxes like these said

to have been used afterwards; “they would freeze next the tin, and

spoil away from it on the opposite side.” (S. H. Davis, p. 91.)

And fish must have done the same.

The fish were “ generally frozen in the end where the ice and salt

was, and in the other end when they stayed in there long enough,

which they sometimes did.” (S. H. Davis, Ree. p. 98.) They

never did. The evidence is clear as to this, as shewn above.

S. H. Davis says he knows that a fish in the end of the chamber

furthest from the ice and salt was once frozen in ubout two hours

(p. 99). And D. W. Davis states that he has known a hundred or

;

a hundred and fifty pounds of fish to be frozen equally all over the

chamber, though how long it took he does not know (pp. 148, 149).

But both of these things are impossible. It took between twenty-

four and thirty-six hours to freeze a small fish in Lfewlell’s ice-crcam

Sreezer (Hewlett, Ree. pp. 220-222). And Mitchell could not

freeze in three days in the Adrian apparatus, which was exactly like

this (pp. 163, 171, ints. 30, 144).

These boxes were kept in the back part of S. H. Davis’ fruit, pea-

nut and candy store.

S. H. Davis, pp. 97, 98.

D. W. Davis, pp. 142, 149.

Where they came from, or what became of them, is not known.

It will be seen hereafter that when Davis next had an apparatus, it

was entirely different from this (pp. 98, 99, 100).

Simeon Fought, before mentioned, says that he bought fish of

William Davis “some time between 1853 and 1855 which. be knows

were artificially frozen” (p. 209). |

How they were frozen he does not know. “I didn’t see them

frozen; I only know that.they had been frozen. I think that is all

I know about it” (p. 212).

He has bought frozen fish of others than Davis there, but whether

as long as ten ov fifteen years ago it is impossible for him to say

(p. 213). And whether he bought them of other parties than Davis

while Davis was there he docs not know (p. 212).

Nobody in the country had them at that time, unless Davis did.

‘The thing was unheard of, and “a great curiuvsity ” long after.

Fought’s value as a witness has been already considered.

Jacob S. ftitze is produced to prove the sale of frozen fish by

Davis. He bought fish of William Davis while he was in Columbus.

His answers are so peculiar as to-excuse liberal quotation.

He is asked on direct whether he noticed anything peculiar about

these fish or any of them; and he says, “I don’t know as I could

see anything peculiar about them; some days it was pretty hot, and

the fish wouldn’t keep so long” (pp. 213, 214).

This question failing, he is asked whether any of them “ were

DAI

frozen or not.” His answer is “ Not at one time; sometimes they

were frozen, and sometimes they were not” (p. 214).

Then this question is put: “ How often were the fish, thus bought,

frozen; quite often or rarely?” Ans. “ That’s so long ago, I don’t

know as I ean remember how often. Sometimes I was there

when the fish came, and sometimes I was not; can’t remember how

often.” |

He is then asked whether he bought frozen fish a hundred times,

or no more than five. And he says, “I can’t tell that; it would be

impossible; it was certainly more than five times. In hot weather

of course they would. be frozen; in moderate weather they would

not be.” |

On cross-examination he says that he always bought frozen fish in

hot weather when he could get them. When asked whether frozen

fish were not uncommon there in hot weather, he says, “ We got them

when we could. I can’t. answer any further than that sometimes they

couldn't get frozen fish themselves. . . . I mean Davis first, and

then David Joyce, and there were others that shipped fish through

here to railroad; and I bought a great many fish out of the river,

sometimes of Charles Wagner” (p. 214).

Nobody’s else fish “ came frozen just like Davis’; I never saw any

that way before.” When he is asked how these other fish, not Da-

vis’, came frozen, he says, J don’t know as they were frozen at all.

They came packed in barrels and boxes with ice” (p. 215).

But Davis’ fish came in barrels or boxes with ice, too (pp. 215,

216, ints. re-direct 3; re-cross 1, 2; re-direct 1, 2).

He has seen the Davis fish frozen so hard sometimes that they had

to be broken apart; but whether it was in hot or cold weather he

“ean’t say. He don’t remember, and can’t answer anything further”

(p. 215, int. 4).

Now, when it is remembered that at that time there had never

been an artifically frozen fish in existence, unless Davis had them,

this testimony is remarkable.

Peter Ambos, in whose restaurant Ritze was enployed, and for

whom these frozen fish were bought, if at all, never saw or heard of

such a thing at that time (Rec. pp. 77, 78).

Neereamer, already considered as to the Northwood use, knows

that Davis had frozen fish for sale in Columbus, on High street

(the same store spoken of before) Rec. p. 207.

The fish were frozen by putting them into tin cans, burying the

cans in salt and ice, held in a tub, and then covering the whole

over with cloths or a cover (Rec. p. 207).

This is remarkable. If true, how does it happen that neither of

the Davis brothers knows or says anything about it?

Hiram Simonton was a hotel keeper. in Columbus while Davis

lived there, and bought fish of him; and he never saw or heard of

artificially frozen fish till long afterward (Rec. pp. 76-78).

Charles A.. Wagner knew William Davis all the time he lived in

Columbus; was in the fish business himself at the same time and in

the same market, and he never saw or heard of artificially frozen

fish there till many years after (Ree. p. 73).

W. W. Riley says that he saw in Davis’ store in Columbus, a

box which he did not examine, but which he thinks was the same as

one he had previously seen used by Davis in 1850. “His testimony,

as to this use in 1850, will be examined hereafter (Rec. pp. 217,

219).

There is no other evidence in regard to the Columbus use.

It will be noticed that all the evidence as to the construction and

actual use of the apparatus comes from two witnesses, both interested

in the success of this defence, testifying to the details of an apparatus

which disappeared seventeen years ago, one of them throughout the

ease wholly discredited, the other deeply concerned to sustain him.

At the most, giving the evidence all the weight and eredit that can

be claimed for it, nothing more is proved at Columbus than an unsuc-

cessful, abandoned experiment, by means of an apparatus which never

was practically used so as to anticipate the appellant’s process.

Clear, positive and trustworthy evidence is demanded of those

upon whom the burden lies, not only that the apparatus was there,

but that the patented process was practised with it. This, we sub-

mit, the appellees have not furnished, either as to this or any alleged

prior use.

Wing v. Richardson, 2 Clifford, 449.

Johnson v. Root, 2 Clifford, 168.

Riley also testifies fo the use of an apparatus by William Davis,

in Columbus, from January 1850 to July 1851. His testimony as

to this can most conveniently be examined here.

This apparatus, according to him, consisted of a box about three

and a half or four feet long, thirty inches high, and about the same

in width. Inside of this was put a smaller box, leaving a space be-

tween the two, whichwas filled with charcoal. Inside of this inner box

was another to hold the refrigerating material. This inmost box had

a separate lid to close it up tight. The box which held the fish had

also a separate cover, and there was another cover for the whole

(Ree. p. 216, int. 8).

All the testimony in regard to this apparatus and its use comes

from Riley. S. H. Davis, who, according to Riley (p. 218), helped

his father run it, and D. W. Davis, who lived with him, know

nothing about it. |

The apparatus described is the most elaborate one ever said to

have been made by Davis until 1864, and the appellees would have

it believed in constant use and successful; yet it immediately disap-

peared. . And the next year, at Northwood, Davis is said to have been

inquiring of Neereamer about the first principles of freezing, and

using the clumsy ice-cream freezer apparatus already considered.

Riley’s evidence was not given till some time after the rest of the

testimony about the Northwood and Columbus use had been taken

and replied to by the appellant.

He says that he had occasion to see the box in use almost every

day while he boarded with Davis (p. 216, ints. 6, 13); but as to

the details of its construction he really knows little (p. 216, int.

8).

The value of his recollection appears from the fact that he

thinks it was “ identically the same box” as that testified to as used

in Columbus in 1854 (pp. 216, 219, int. 23; cross 17). This cannot

be if the Davises are to be believed. The apparatus is not the one

described by them.

Pa eA ERI MO entre eset

Neereamer’s statement of what Davis used at Columbus still fur-

ther complicates the inconsistency.

Whatever it was, if ever used at all, its operation must have been

experimental and .unsatisfactory, or Davis would not have come

back to the ice-cream freezers immediately afterward.

Riley’s testimony leaves it more than doubtful whether any fish

were ever frozen in the box he describes.

He says that Davis “attended market three times a week, and got

his fish the day before and put them in this box, and took them out and

sold them the next day” (p. 216, int. 13). “Occasionally he would

not sell all out, and the next market day they appeared just as good

us ever, and sold just the same” (p. 217, int. 14).

He is then asked how the fish looked and felt when they had been

in this box; and he says, “ They looked just as well as ever, for all I

could see, and felt solid and firm; that was the great object, to have

them look well ”(p. 217, int. 15). But he never felt of them at all

(p. 217, int. 17). To the direct question whether they were frozen

or not he says he thinks they were frozen (p. 217, ints. 17, 27).

On cross-examination the question is repeated twice. . The first

time he answers as before, that he thinks they were frozen; the

second time he says, “ J suppose there are degrees of freezing; they

were frozen sufficiently to keep them from one market day to another,

and that is all I know about it” (p. 218, cross-ints. 5, 6).

The fish always came out of the box in the same condition (p-

218, cross-int. 8).

They used to come to Davis packed in ice, and Riley thinks “he

used to clean them off, and they would come out nice and clean in

the morning” (p. 218, cross-int. 9).

For a freezing mixture in the apparatus Davis used “ pulverized

ice and salt — perhaps; he, I think, might have had other things, for

all I know” (p. 218, cross-int. 10).

In a box with a much larger receptacle for freezing mixture. In

proportion to the size of the preserving chamber, said to have been

used long after at Detroit, S. H. Davis says that fruit and vegetables

could not be preserved ; there was decay and mould. This makes

it certain that there was no freezing atmosphere.

Riley says that Davis claimed in 1850 to have got up.a circulation

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of air. It will be seen, further on, what other witnesses, the Davis

brotaers and Sprague (who claims to know all about Davis’ opera-

tions and got his patent for him), say about this. It is important

here mainly as shewing that for some reason or other Davis had not

at this time a freezing atmosphere. Circulation is only desirable

when the temperature is above freezing.

There is no other evidence as to the alleged Columbus use.

We submit that the appellees have failed to sustain the burden

resting upon them, and that there is no sufficient evidence of prior

use there of the patented invention.

Use by Davis at Detroit.

In 1855 Davis moved from Columbus to Sandusky, where he lived

about a year, keeping a hotel and dealing in fish.

S. H. Davis, Rec. pp. 89, 100.

D. W. Davis, Rec. pp. 142, 150, 151.

He had no apparatus there (S. H. Davis, Rec. p. 89). Though

he had then the same occasion to use the process there as at North-

wood or Columbus, and he had been perfectly successful at both.

these places and was perfectly successful with another apparatus,

‘the appellees say in less than a month after he went from Sandusky

to Detroit.

He moved to Detroit in November 1856.

S. H. Davis, Rec. p. 100.

D. W. Davis, Rec. p. 142.

The first use alleged there is testified to by Thomas S. Sprague,

Davis’ attorney and patent agent.

The apparatus is described as entirely different from any other

said to have been used by Davis.

Sprague testifies to buying frozen fish of Davis in the late summer

of 1856, and examining the apparatus in which they were frozen.

His account of the circumstances and description of the apparatus

are on pages 157-158 of appellees’ Record.

Without quotation from his testimony, we remark upon it, —

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_ 1. That he deseribes an apparatus which: never existed:at all. It

is not, like any other said to have been used by Davis.

2. In 1856, as above shewn, Davis was living ‘in Sandusky, and

had no apparatus anywhere.

8. The only apparatus (Exhibit B). which in any respects resem-

bles it, was not built till December 1856, and. was never on the

docks at all. The box like Exhibit D is the only one claimed to

have been used there (Rec. p. 90.)

4. S. H. Davis, who may be supposed to know, says his father

never had any apparatus of any kind on the docks till 1857 (Ree.

p- 90).

5. Sprague says he saw it on the De Garmo Jones dock in 1856.

Davis was not there till 1859 (S..H.. Davis, pp. 107, 108).

6. The box which was used on the De Garmo Jones. dock was. en-

tirely different from the one Sprague says he saw there. It was like

Exhibit D (S. H. Davis, pp. 45, 46, 90, 91,,101, 102).

So that if Sprague ever saw any apparatus at all he saw an entzre-

ly different one from what he says he did, and he saw it in 1859.

But his evidence is important as. shewing how Davis had been at-

tempting to. preserve fish up to 1859.

~ In Sprague’s. affidavit (p. 160) he says, “ The said Davis caplained

to me how he froze the fish so as to prevent them from being salted

in the operation ; he (the said Davis) told me that he placed the ice

and salt in a metallic receptacle, which was air-tight whem closed,

which was placed in a box when filled with ice and salt, and closed ;

the fish were then placed in the box and against the outside of the me-

tallic ice-receptacle, and the box closed; when the fish had been in

there a sufficient time, they were frozen stiff”(p. 160).

This effectually disposes of the alleged prior use at Northwood,

Columbus and Detroit. Up to that time William Davis had never

practised the Piper process ; he had never obtained a freezing atmos-

phere in which to keep the fish in the preserving chamber.

But more than that, this affidavit contradicts the testimony both af

Samuel and David Davis. For in this way only a very few fish

could have been frozen at a time (and they, without turning over,

only on one side), so that their testimony in regard to the number

of fish, &c., frozen in the Columbus apparatus, cannot. be true.

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Sprague knows more about William Davis’ freezing operations than

anyone, except Mrs. Davis, now living; he was his friend and so-

licitor. Either his testimony or that of the Davises is untrue.

Sp ‘augue is also put forward to explain Davis’ behaviour about his

invention, which needs explanation, if what is claimed for him is true.

He had made a valuable invention, and knew that he had, for

he “had preserving fish on the brain” in 1850-51, Riley says; and

yet for seventeen years he never claimed it, never patented it (ob-

stinately refused to do so), did nothing with it that a man who had

accomplished such a result would naturally do.

The explanation is, that his object was to produce an internal cir-

culation of air in the box, and this was not accomplished till 1868

(Sprague, p. 159).

The answer to Sprague’s explanation is Sprague’s and Davis’ act.

Sprague took out Davis’ patent for him, dated June 16 1868, and

there is not a word in that patent about circulation of air; but an ap-

paratus ts described and patented which absolutely excludes the possi-

bility of a circulation.

Riley says that Davis claimed to have got a circulation as early as

1850.

Davis is said to have tried still another kind of apparatus at his

house on various streets in Detroit, with a single tube running down

through -the centre of the chamber, to hold the freezing mixture,

closed by a plug, so that there was no communication between the

mixture and the chamber.

Samuel Davis was with his father all the time, and gives the ac-

count of this apparatus and its use.

According to him it was used for about three months in the fall

and winter of 1856-7 at Adams and Jefferson avenues (Ree. pp.

89, 100). Then during the summer of 1857 on Congress street

(p. 100).

In the fall of 1857 or spring of 1858 Samuel Davis himself tore it

to pieces (p. 100).

D. W. Davis testifies to its use on Adams and Jefferson avenues

only (p. 147).

But he lived with his father all the time. If it was used anywhere

else he certainly knew it (p. 145).

He says it was used continuously for five or six months on Adams

and Jefferson avenues openly and publicly (p. 145).

The fish frozen in it were sold around ‘to the hotels and on the

street.

S. H. Davis, pp. 18, 44, 89, 100.

D. W. Davis, pp. 147, 148.

It was a box five feet high and four feet square, with a tube ten

inches in diameter running down through the centre of the chamber

and through the ceiling.

S. H. Davis, pp. 17, 89.

D. W. Davis, pp. 143, 144.

Barlin, p. 133.

Only fish close to the tube could be frozen in it.

-S. H. Davis, p. 89.

Wildes, pp. 109, 110.

And so only a few could be frozen at a time. Samuel Davis says

a hundred pounds. Another witness, who claims to have tended it,

says only twenty-five or thirty pounds. —

S. H. Davis, p. 89.

Wildes, pp. 109, 110.

Here Davis’ description to Sprague of his mode of freezing is

confirmed.

The existence and use of this apparatus are testified to by other

witnesses. :

John Wildes swears that he was employed by William Davis at

his house on Congress street in 1857; that this box like Exhibit B

was then there, and he was employed to help run and tend it.

We submit that he is an untrustworthy witness.

He says that this was in 1857.

He has worked for Davis at various times from 1856 to 1870.

William Davis died in 1868.

isin ESE

He knows it was in 1857, beeause it was the last year that he

sailed in the steamboat “United” with Capt. Buzzard, and he sailed

with Buzzard two years, beginning tn 1853 and leaving off in 1855

(pp. 110, 111).

After he left the “United” he worked on a farm for one year;

then was idle for three months; then worked on ascow for one month;

then went to work for Davis (p. 110).

Now the fact is that Buzzard was not captain of the “ United” till

August 1855, and he sailed her till August 1858 (Dodsley, Rec. p.

87).

Taking Wildes’ own account of himself, tltis would bring the date

of his going to work for Davis late in 1858; but he says he did not

work for him in 1858 at all, but did a2 1859. This is probably true,

and this was the first time.

At first he says he worked for Davis three months, beginning in

August and ending in November (p. 110). Then he says he left

off in December; and still again says he began in October (p.

112).

Certainly there is no evidence here that Davis had this apparatus

in 1857 or 1858. |

But the witness shews his character in other matters. It is ad-

mitted that only a few fish could be frozen at atime in this box. (S..

H. Davis, Rec. p. 89.) Wildes says that only twenty-five or thirty

pounds could be frozen at a time, but says that the reason Davis did

not freeze more at a time was “because he didn’t want to.” But in

the next breath he says he has seen five hundred pounds in the box

at one time, which had been frozen in successive lots of twenty-

five or thirty pounds each (pp. 111, 112).

The fact that only a small amount of fish could be frozen at a time

in this apparatus, and the reason of it, are of importance, because

they shew clearly that even up to this time Davis had never suc-_

ceeded in doing what Piper accomplished in 1858; viz., producing

a freezing atmosphere in the preserving chamber. In fact, Davis

never did accomplish this fully until 1864, when he built an appara-

tus with four tubes in the chamber.

S. H. Davis, p. 106.

D. W. Davis, p. 146.

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€

And this is further important as relating to the statements of the

Davises, that fish after being frozen in this apparatus were kept piled

up all over the floor for months. If there was no freezing atmos-

phere the fish would no more stay frozen than they would freeze ;

and thawing fish cannot be kept for months.

Albert Harryman testifies that late in 1856, in November or De-

cember, William Davis gave him two frozen fish out of a box at his

house on Adams avenue. He did not examine the box, and knows

nothing about its construction (Rec. pp. 127, 128).

The value of his recollection, and his accuracy as a witness, will

be better shewn when we come to examine his testimony about

another apparatus which Davis is said to have used.

Amelia Rayle, daughter of William Davis, testifies that she saw

frozen fish at her father’s house on Jefferson avenue in the spring of

1857. They were then “a great curiosity ” (evidently not so common

in that family as her brothers would have us believe they. had been for

seven years). She saw them taken out of a box then, but knows

nothing at all about the box.

She says they were frozen hard, but she cannot remember whether

she ever touched them or ever examined them. She éannot remem-

ber how many she saw or how many times she ever saw them there.

Her father used to have a good many fish about the house.

There is nothing particular to make her think that it was at Jef-

ferson avenue, or before May 1857, except that they had a barn there ;

but they had a barn at other places in Detroit. And she cannot

recollect where the freezing apparatus stood on Jefferson avenue

(Ree. pp. 122, 124).

The testimony of Emma Worman, another daughter of William

Davis, is on pages 124, 125 of appellees’ Record, and requires no

comment.

Samuel Barlin says that he worked for William Davis, with short

interruptions, from the spring of 1857 till Davis died in 1868, and

tended a freezing apparatus during all that time like Exhibit B

(the tube apparatus).

We submit that this witness is not to be believed.

PEER GR eR

Bhd RG

He says that Davis had this apparatus at every place he lived in

at Detroit, after that time, and used it continuously at all of them

from 1856 to 1868, except at Madison avenue, where he had it, but

did not use it; and that he (Barlin) himself tended it all this time

(Rec. pp. 1384, 185). And never any other kind (p. 135).

But this cannot be true, if the Davises are to be believed. Sam-

uel Davis says he himself destroyed this apparatus in 1858 (S.

H. Davis, Rec. pp. 100, 101), and they did not have another one

like it tll 1864. From 1862 to 1864 they had none at all (pp.

100,101). And after this was destroyed they never had another one

at any of the places named by Barlin. The only box they pretend

to have had between 1858 and 1864 was on the docks in Detroit (p.

101).

Such extraordinary conflict of witneeses cannot be explained. It

is ruinous to the witnesses involved, and discredits the whole de-

fence.

But the appellant insists that Barlin never was in Detroit at

all till years after the time he says he went to work for Davis.

Much testimony has been taken om this point, but it is easily

summarised.

Barlin says that he came to Detroit with his mother, Maria Barlin,

in the fall of 1856 (Ree. p. 132). :

He says he knows it was in 1856 because he first lived with his

mother on Lafayette street, and his mother had a receipt for her

rent (cross, p. 133). But this receipt he cannot produce. It is

lost; he has not seen it for ten years or more (cross, p. 135).

Lhe landlord’s first name was Francis. He is now dead. Barlin

forgets the last name (p. 133). The appellant has been able to

supply the defect. The landlord’s name was Francis Schulte. The

result of the discovery of it will perhaps account for Barlin’s fail-

ure of memory.

Francis Schulte at that time owned three houses on Lafayette street ;

one in which he lived himself with his family, one next door which

was rented, and one directly opposite, which was also let.

August Schulte, Rec. pp. 42, 43, 53.

Elizabeth Schulte, Rec. pp. 53-55.

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Stephen S. Johnson met Mrs. Barlin and her family on the dock

on their arrival in Detroit. Her things were still on the boat. She

wanted to get a house to live in, and she asked Johnson if he knew

of one. He directed her to Schulte’s house, directly opposite where

Johnson himself lived. She moved in there immediately and lived

there several years, and then moved into Schulte’s other house across

the street (Rec. pp. 64, 65, ints. 1-8). He cannot fix positively

the date, but is certuin that it was after the war began (p. 66).

The date is not important, as far as this witness is concerned.

That is fixed by other evidence.

Martha J. Johnson, wife of the last witness, is acquainted with

the Barlins. When they first came to Detroit they lived in Schulte’s

house directly opposite that of the witness, on Lafayette street.

Mrs. Barlin had just come to Detroit and wanted to get a house ; the

witness shewed her Schulte’s and she moved in immediately. This

egan; she thinks in 1860 (Ree. p. 46).

Anna Thomas lived in Schulte’s house on Lafayette street one

month, from September to October 1859. Mrs. Barlin and family

were not living there then. She moved back there in 1862 and found

was after the war be

‘the Barlins living there (Rec. p..56).

Romulus Morton lived in Schulte’s house from October 1859 to

‘May 1860. The Barlins did not live there during that time. There

were three tenements in the house. Mrs. Randall lived in one, Mrs.

Needham in the other. Mrs. Randall moved out in March 1860

(Rec. p. 57).

Mari, ftandall lived in Schulte’s house while Morton did; moved

from there, and was gone a year; then moved back again. The

Barlin family moved into the house after the witness went there the

second time (Ree. pp. 57, 58).

Amanda Needham lived in Schulte’s house in August 1859. The

Barlins were not there then (p. 55).

Elizabeth Schulte is the daughter of Francis Schulte, now dead,

and attended to his business. Mrs. Barlin and family (a son Sam

and a daughter Adeline) moved into Schulte’s house on Lafayette

street, next door to where witness lived, in 1860 or 1861. Afterward

she moved into another of Schulte’s houses opposite, and remained

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there till 1867, when a new house was built there (Rec. pp. 53, 54,

55, direct ints. 1-13, 18; cross 7-12, 16).

She is well acquainted with Mrs. Barlin. Mrs. Barlin has often

told witness that her father was the first man she rented of in De-

troit (p. 54, ints. 16, 17), and that she lived in both of his houses

seven years (int. 19).

August Schulte, son of Francis Schulte, knows the Barlins;

they lived in two of his father’s houses between six and seven years,

and moved out in 1867, when the house was torn down (Ree. p.

43, ints. 3-7). |

David C. Dibble, a visitor at Davis’ house in 1859 and 1863, and

afterward a workman for him, first saw Barlin there in 1867 (pp.

51, 52, ints. 3, 21-26).

We submit that, unless overthrown, this evidence is fata] to Bar-

lin’s testimony.

An attempt is made to reply to it, but Barlin is not recalled, nor

Mrs. Barlin called to contradict or explain it.

The testimony which is offered in reply deserves examination.

S. H. Davis swears that Barlin worked for William Davis in 1857

on Jefferson avenue. He says nothing about any other time or

place (Rec. p. 179).

Mrs. Worman swears that she first knew Barlin on Jefferson

avenue in 1857, “as near as she can recollect. He was then working

for her father” (p. 180). She “can’t remember when he didn’t

work for them up to three years ago.” But she cannot remember

either when he did, nor how long (p. 180, ints. 2-4).

Mrs. Rayl is led to testify that he worked for her father, off and

on, from 1857 to three years ago (p. 181).

D. W. Davis and Mrs. Davis are silent.

George W. Hector says that. he was well acquainted with Barlin

as early as the fall. of 1856 (Rec. pp. 177, 178, 179, ints. 2-10;

cross 14, 23-34).

He knows it was in 1856, because he was working for Charles

Shippey in a livery stable, and Barlin was there frequently to see

him, &c. He has political reasons for his certainty (p. 177, ints.

2-10).

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But Shippey is found, and it appears that he never kept that stable

till June 1860, and that Hector worked for him from the following

winter till some time in the summer of 1861, and never at any other

time.

Ree. pp. 58, 59.

See also Weber, pp. 37-39.

Such an exposure as this needs no comment... It destroys more

than S. H. Davis’ testimony.

From Barnum’s, Samuel Davis says, they moved to Catlin &

Irwin’s dock. As the apparatus was then “stored away” (where,

he does not know), and -no use is alleged there, all that need be

said about this is, that Irwin’s testimony makes it certain that they

were never located on that dock. The most they could Lave done

was. to ship over it to a small extent, and this is left more than

doubtful (Ree. pp. 33, 34).

Davis says this box was used again én 1859 on the De Garmo

Jones dock (Ree. pp. 91. 101,103, 104,111). This was more than

x year after Piper’s invention, and is of little importance, ex¢ept as

affecting the value of other evidence in the case, and shewing strik-

ingly the extreme difficulty of correctly fixing the date of any event

long past.

Norton’ B. Rowley swears: that he saw Davis using 2 box like

Exhibit Din 1857. But he says it was at Davis’ place of business

on the De Garmo Jones dock, and Davis never was there till 1859

(pp. 115-117). | |

Albert Harryman says he saw Davis using it in 1857. But this

was on the De Garmo Jones dock, and of course he is mistaken

(pp. 127-129).

These witnesses were confronted with their affidavits given on the

motion for injunction, and what they say about the remarkable

discrepancies between them and their present testimony shews

plainly that they were induced te swear positively to some things

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which they knew nothing about, and to some things which were pos-

itively untrue.

Jarraitt says he made the apparatus like Exhibit D. He is posi-

tive that it was in the spring of 1857. His main reason for thinking

so is; that his daughter died the following summer, and that he had

been sick before that (pp. .92, 94, 119, 121, 122).

His daughter’ was buried in July 1856 (Ancieux, Ree. p. 45).

In view of the evidence as to the use of this box on the docks,

his testimony-is not important; but he is plainly not to be relied on

for dates.

The appellant might, it is submitted, rely upon the character

of the evidence for the appellees’ of the alléged Davis use, but he

has been able to do more. In many instances he has absolutely

disproved the appellees’ allegations and overthrown their evidence.

And he has produced abundance of testimony from men who, it can-

not be doubted, would have known it if Davis had ever done what

it is now said. he had; and not one of them ever heard of artifi-

cially frozen fish till after Piper’s invention had introduced the pro-

cess through the country. |

Clifton Hadley, who was a fish dealer and an intimate acquaintance

of William Davis, both in a friendly and business way, from 1852

in Columbus, to his death in Detroit, and shipped most of his fish

to him in Columbus, had frequent conversations with him about. his

fish business and the keeping of fresh fish while Davis was_ in

Columbus and Sandusky, and he (Hadley) never beard of artificially

freezing them, either by Davis or anybody else, till after Piper had

put up an apparatus in the West, years after 1858 (Ree. pp. 82,

83). | , 1D

Anthony and Alvord, fish dealers in Sandusky since 1846.and

1857, respectively, never heard of such a thing till about the same

time (Rec. pp. 79, 181).

West, a fish dealer in Sandusky, never knew of it dll he heard of

Piper’s invention (Rec. p. 84). Dot

A. M. Campau has been largely interested in. the fresh-fish busi-

ness at Detroit, since 1846, and knew William Davis. He never heard

of the artificial freezing process till at least as late as 1863, and then

as done in Chicago. In 1864, 1865, 1866, he had frequent conversa-

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tions with William Davis “with regard to the freezing of fish and meats

generally, freezing of articles largely in use.”

In these conversations Davis “thought that fish and meats could

be frozen in a box, putting ice around the box. He referred to

something he had seen in Central market in New York, which he

thought could be utilized and imade valuable. A year or two after,

through his representations, I went down there and saw something

such as he described, —a freezing apparatus” (Rec. pp. 23, 24).

This apparatus which Campau saw in New York was exactly

Piper's. |

The defendants would have it believed that William Davis had been

successfully and publicly practising the same process for twelve

years at this time. And more, that he had built and successfully

used two apparatuses like the one in New York, and was actually

using one at that very time in Detroit (5. H. Davis, Rec. p. 106.)

J. F’. Aniisdel has kept hotels in Detroit since 1850. He never

heard of artificially frozen fish till years after 1858 (Rec. p. 25).

It was to Antisdel’s hotel that S. H. Davis says that frozen fish

were sold out of the tube apparatus in 1857-8 (Rec. p..101). , He

also says they were sold to the Russell house.

Albert F’.. Draper has been in the hotel business for fourteen years

or more. From October 1857 to April, 1861 he had entire charge

of the Russell house in Detroit, making all the purchases, &c. He

never bought or heard of artificially frozen fish till after he left there

(Rec. pp. 21, 23). |

So MeClatchey, who was in charge of the store-room, &c., in the

Russell. house, while Draper was there, never saw any frozen fish

there, except those frozen by the weather (pp. 29, 31).

So Maxwell and Whitbeck, both in hotel business (pp. 25, 26, 27).

~ David C. Dibble, a visitor at Davis’ house in 1859, while Davis

was in the fish business, and afterward in 1863, never heard of arti-

ficially freezing till 1865 (pp. 51, 52, ints. 2-8, 27).

Hiram R: Johnson, Davis’ landlord on Congress street, where the

tube apparatus is said to have been used, who assisted Davis in his

business, never heard of artificial freezing till aiter Davis was in

Russell-house block, which was certainly after 1860; and never

rented. Davis: the-barn where. the box: is said: to: ave: been: used (ps

36, ints. 2-6, 12-15). : : .

' See also the paldenne of the ice dealers in Detroit - that sithe,

some of whom furnished Davis with ice;:none of them. knew: of are

tificial freezing till after 1860. at the earliest. : : |

Lorman, pp. 26, 27. :

Beal, pp. 28,. 29.

Whitaker, p. 29.

Beal supptied Davis with ice in 1862 and 1863 for preserving fish,

and knows. how. Davis did it at that time. It was by putting alter-

nate layers of cracked ice and tish in boxes or barrels (p. 28, cross-

int. 3, re-direct 1).

Philips, a fish dealer in Detroit for eight ycars, first ical of, ar

tificial freezing about 1868 (pp. 20, 21).

Of the various apparatuses claimed to have involved prior use of

the patented process, not one is now in existence. The Northwood,

the Columbus, and .the box like the one at Columbus, disappeared,

no. one knows how. The «tube apparatus was torn to’ pieces.

Another like. Exhibit D was destroyed in 1862 (Rec. p. 105).

Still another like Exhibit. B was used ‘till 1866, and then that

was destroyed. Then still another was built like Exhibit D, ge

that the ice chamber was in the centre (p. 106).

And all from 1851 are claimed to have been per feetly successful i in

accomplishing a most valuable practical result; yet all were de-

stroyed,, and nothing was done with the invention.

The ‘explanation given of these continual abandonments and

ehanges of successful machines, and Davis’ behaviour, — that he was

secking a cireulation of. air—has been already cousidered. His

patent isa conclusive reply. No circulation of air, is mentioned in

it, and none is possible in the apparatus described.

The appellees endeavoured to shew by Howell, Scott, Skehan and

Conquest, that fish have been frozen and preserved since the appel-

Jant’s patent, with communication between the freezing mixture and

the atmosphere in which the fish are kept. The inference desired is,

that the invention is not useful. The evidence was objected to; and

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pellces, the evidence to sustain it should be clear atid positive. The

the defence not having been set up in the answer, if is not admis-

sible.

If reply is needed, it is found in Howell’s patents and testimony,

which shew no such communication, but an arrangement to prevent

it; in the master’s report as to the Boston apparatus to which Con-

quest refers; in the testimony of Scott and Skehan themselves, and

the circumstances of the ease.

An expert, MeGillycuddy, testifies to the suecess of a Davis pa-

tented refrigerator in preserving, without freezing, meats and fruits.

His evidence is immaterial, because it touches neither the validity of

the appellant’s patent nor the infringement of it by the appellees ;

and accordingly it is not criticised.

INFRINGEMENT.

Infringement is proved (Rec. pp. 10-17).

Upon the whole case the decree should be reversed.

The ice-cream process was not an anticipation of the appellunt’s

invention.

Prior use by William Davis is not shewn.

The story itself is improbable, and the burden being upon the ap-

testimony for the appellees is inconsistent, untrustworthy, and insuf-

ficient to prove such a use as should destroy the appellant’s patent.

Its own character and the appellant’s reply to it are conclusive

against this part of the defence.

CAUSTEN BROWNE,

Jor Appellant.

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ENOCH PIPER

APPELLANT,

VS.

GEO. T. MOON. ETAL.

APPELLEES.

——— - ). Oe

SHEORGE GIPFPErORD, Esq.

JERSEY CITY:

EVENING JOURNAL PRINT, 142 & 144 GREENE STREET.

1875.

Je x

eth tay

Sa AN eres ream lashcil AAA LLALALEL LSS ————e

Claited States Supreme Court.

ENOCH PIPER,

Appellant, :

Us.

GEORGE T. MOON, e¢ al_wr

This is a suit for the infringement of a patent. The |

bill and answer are in the usual form. The defence is

want of novelty.

The first question is, what is the scope of the patent?

To determine what is patented, attention must be given

particularly to two parts of the specification of the patent ;

the first is where the inventor announces to the publie

what invention he has made, and defines its nature; the

second is the claim in which he sums up by again defining

what he intends to patent.

In the statement by the patentee of the nature of his

invention, he says :—

“The nature of my invention consists in a method

of preserving fish and other articles by placing them

within a chamber and cooling the latter by means of A

a freezing mixture, so applied that no communication

shall exist between the interior of the preserving

chamber and that of the vessels in which the freez-

ing mixture is placed.” j

”

He, for the purpose of further defining his alleged in-

vention, and having it seen in contrast with what he as-

4 € J

sumed was the old method, states what he understood to

be the only old method, thus :—

“Titherto the only method in use for preserving

this kind of fish in a fresh state, has been to pack

them with crushed ice in barrels or boxes. This

method, however, owing to the melting of the ice

and the consequent moistening of the fish, fails to

preserve them fresh and good for more than a month

-at most; whereas, by my new method and treatment

they can be kept as fresh and sweet as when first

caught, and for any desirable length of time, even

for years.”

He then, in conclusion, ignores all limitation to any

particular Avnd of apparatus, and all limitation to pre-

liminary freezing and coating, and asserts his claim in

absolute and unequivocal terms, thus :—

“ Preserving fish or other articles in a close cham-

ber by means of a freezing mixture having no con-

tact with the atmosphere of the preserving chamber,

substantially as set forth.”

THE THING PATENTED.

It is plain and certain—

Ist. That the thing patented is a process.

2d. That it is not limited to any particular kind of

apparatus, but includes the doing of the thing by any

kind of apparatus in which. the air of the preserving

chamber is excluded from the freezing mixture.

Ns IRR EDO ANE nese

3d. That the process patented consists of the act of

“preserving fish or other articles in a close chamber, by

means of a freezing mixture having no contact with the

atmosphere of the preserving chamber.”

Such is the invention patented. The addition to the

claim of the words “substantially as set forth,’ does not

restrict or modify the claim beyond what is above stated,

because, on referring to the description, nothing is found

which limits the scope of the claim beyond what is above

stated: |

The specification explains that the method “substan-

tially as set forth” consists of placing the article to be

preserved “ within a chamber and cooling” it ‘by means

of a freezing mixture so applied that no atmospheric com-

munication shall exist between the interior of the preser-

ving chamber and the freezing mixture.” That is the

way substantially set forth.

The process patented includes the doing of the thing

by the use of any kind of apparatus in which the article

to be treated is in a close vessel, the atmosphere of avhich

is not in contact with the freezing mixture. If the ar-

ticle to be preserved or frozen is in a close vessel, the

operation is equally within the patent, whether the freez-

ing mixture is piled up on such close vessel, or is in an-

other vessel and surrounds the close vessel, or is enclosed

in a vessel placed within the preserving chamber. When-

ever an article is frozen or preserved in a close vessel by

the use of a freezing mixture, which freezing mixture is

not in contact with the air contained in the close vessel,

the patented process is practiced. If the article to be

treated be enclosed in a vessel, and the freezing mixture

be enclosed in another vessel, and this latter vessel be

placed in the former one, and the article be thus

frozen or preserved, the patented process is used ; also, if

a freezing mixture be placed in a vessel either open or

enclosed, and the article to be treated be enclosed in an-

other vessel, and this latter vessel be placed within the

former, and the article be thus treated or preserved, the

patented process is used. So, too, if a fish or other article

to be treated be enclosed in a vessel setting on the floor,

and the freezing mixture be piled up around the vessel,

and the fish or other article to be treated be thus frozen

or preserved, it would be using the patented process.

Such is plainly the scope of the patent, and such is the

construction given it by the learned Judge in the suit in

Boston. In his opinion in that case he Says :-—

“The complainant’s bill claims as his invention,

an ‘Improvement in the method of preserving fish

and other articles. The method claimed is described

as ‘A method of preserving fish or other articles, by

placing them within a chamber and cooling the lat-

ter by means of a freezing mixture, so applied that

no communication shall exist between the interior of

the preserving chamber and that of the vessel in

which the freezing mixture is placed.” The patent

describes it as ‘A new and useful method of pre-

serving fish.’ The claim in the patent is ‘ Preserv-

ing fish or other articles in a close chamber by

means of a freezing mixture, having no contact with

the atmosphere of the preserving chamber substanti-

ally, as set forth.’ ”

Now let us see what essentials this process is composed

of.

1st. There must be an article to preserve.

2d. It must be in a close chamber.

3d. There must be a freezing mixture.

4th. The freezing mixture must have substantially no

contact with the atmosphere of the chamber in which the

article to-be preserved is placed.

5th. The article in the preserving chamber must by

these means be preserved.

Wherever and whenever these five things are used to-

gether the patented process is employed. If the five

thirgs be present no one need look further for the pat-

ented process.

The process patented being composed of the five ele-

ments or parts above enumerated, it follows that wherever

these elements are found in combination, there the patented

process will be found, whether it be in an alleged infringe-

ment or ina prior use. There must be an arézcle to be

operated upon, a place for that article, a condition. of that

place, an agency to extract calorie from that place, a cer-

tain relation between the article to be preserved and the

agency for extracting the heat, and a preservation of the

article. Wherever those parts and conditions exist, there

is the patented invention. If they were in existence to-

gether prior to the time of the alleged invention of Mr.

Piper, then his patent, like many others from similar

causes, is Invalid.

WHAT THE PATENT IS NOT LIMITED TO.

It is certainly immaterial to the patent as to what shall

be the size of the preserving chamber, or of what mate-

rial it shall be composed, or how thick or thin its sides

shall be. The patent has no limitation to anything of

this kind.

1st. It is not limited to any hind of apparatus, except

that the preserving chamber must be “ close” and in such

relation to the freezing mixture receptacle (which need

not be close) that the latter can extract caloric from the

former.

2d. It is not limited to any kind of article to be pre-

served or frozen.

3d. It is not limited to any particular length of time of

preserving it in a frozen state or of preserving it in any

other state.

4th. It is not limited to any particular temperature

especially, so long as it is below the freezing point. But

the specification does not even limit the temperature to a

degree below the freezing point.

5th. It is not limited to freezing articles or preserving

them in a frozen state, but covers the preserving of them

by the means described, whether frozen or not.

The patent nowhere says that the article to be pre-

served must be frozen, nor does it describe conditions of

the operation from which, of necessity, the article to be

preserved must be frozen. It first states that the nature

of the “invention consists in a method of preserving fish

and other articles by placing them within a chamber and

cooling the latter by means of a freezing mixture.” It

does not say to what degree it is to be cooled. Then,

after describing an apparatus, it adds, “the temperature

of the preserving chamber can be maintained for any

| ome |

“2

Prd

—

length of time below the freezing point, and fish sur-

rounded by this dry and freezing atmosphere will be pre-

served,” etc. This is a statement only of what can, not

of what must be done. It is not given as a limitation of

the process patented to a temperature below or at the

freezing point. It simply states what was well known,

that is, that by the use of a freezing mixture you can cool

the air in the interior of a vessel down to below the freez-

ing point. Cooling the interior of the preserving chamber

down. to 34 degrees and preserving an article in it would

be as much an infringement of the patent as cooling

it down to 30 degrees.

Preserving fruit by such means and in such apparatus

would be within the patent. Refrigerator railroad cars,

which are extensively used for the transportation and

preservation of fruit, have the interior of their preserving

apartments cooled by freezing mixtures, but, of course, not

cooled down to below the freezing point.

The learned Judge in stating the claim in the Boston

suit, said the claim was— .

“For the method of preserving fish or other arti-

cles in a close chamber, by means of a freezing mix-

ture having no contact with the atmosphere of the

: bd 39

preserving chamber.

What, now, is the evidence in this case of prior uses

ot the process patented by Piper ?

ICE CREAM FREEZER.

The first is of the ice cream freezer, the prior use of

which is proved by the depositions of

W. D. Hewlett, folio 464, Record.

ee ee OOS

E. A. Day, folio 474, Record.

S. H. Davis, folio 169, Record.

C. June, folio 249, Record.

J. F. Neereamer, folio 433, Record.

P. B. Dartois, folio 471, Record.

and is not denied. There is no controverted question of

fact respecting what was the common use of this appa-

ratus. The question on that is as to whether or not the

patent covers that use. In the ordinary use of the ice

cream freezer there existed the five elements constitut-

ing the patented process, and they were all in the same

relation to one another as they are in the patented pro-

cess. There was—

1st. The article to be frozen and preserved in a frozen

state, that is the cream.

2d. The close chamber into which the cream was placed.

3d. Another vessel containing the freezing mixture.

4th. There was no atmospheric communication between

the two chambers or vessels.

5th. The article was both frozen and preserved in a

frozen state by means of the freezing mixture.

Here, then, in even the ordinary use of the ice cream

freezer were all the parts and all the conditions required

to bring it within the process patented by Mr. Piper.

It is identically the thing patented.

It is not necessary to add anything to or take anything

from the old ordinary use of the ice cream freezer in or-

der to bring: it fully within the patent. Indeed, nothing

ean be added to it, or taken from it, to make it more

identically the thing patented than it actually was.

ciel atta \

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In the old and common use of the ice cream freezer it

was the practice not only to freeze the article but to pre-

serve it ina frozen state as long as desired, always for

considerable time, frequently for days, and sometimes

longer.

The prolongation of the time of preserving the article

in a frozen state was accomplished by the use of the ice

cream freezer the same as it is in the patented process of

Piper, that is, by renewing the freezing mixture as it be-

came exhausted. Hewlett [folio 465] states that it was

his custom, in 1847, in the use of the ice cream freezer,

to preserve the cream in a frozen state from ten to twelve

hours, and that there would have been no difficulty in

preserving it in a frozen state longer.

Dartois, who had been in the ice cream business over

twenty years, testifies, at folio 471, that he once preserved

cream in a frozen state, by the ice cream freezer, twenty-

four days.

Day, a member of the firm of Morrow & Day, confee-

tioners’in Jersey City, who has been familiar with the

use of ice cream freezers for nineteen years, identifies the

ice cream freezer Exhibit No. 1 and No. 2, and states

that they preserved their ice cream in a frozen state by

the use of such an apparatus, for twenty-four hours by

once packing the freezing mixture, except having the

wooden tub thicker, and adds that by renewing the ice

and salt you could preserve the cream in a frozen state

for an indefinite period; at folio 477, he states that to

preserve the cream by the old process, they first froze. it,

then drew off the water, then repacked the ice and salt,

and covered both the enclosed can of cream and the tub

containing the ice and salt with a cloth.

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Davis says that he first made ice cream in 1851. He

made it in a tight tin cylinder surrounded by the freez-

ing mixture, between which and the interior of the cylin-

der there was no communication, and that if they were in

a hurry they turned the cylinder, but that it would freeze

without [folios 169 and 170. |

Neereamer says, that while he was at work for Davis,

and prior to 1853, they froze chickens in an ice cream

freezer.

_Appellant’s counsel, feeling the force of this testimony

made an attempt to weaken it by proving that in freezing

cream it was customary to stir it while being frozen, but

this was a fruitless effort because the proof is that both

ways were practiced—one was to stir the cream while be-

ing frozen, and the other was to allow it to remain sta-

tionary while being frozen.

Charles June |folio 250, Record] states that it was: his

practice to turn the cream when in a hurry, as it would

facilitate the-freezing, but that he often froze it without

turning, but allowing the can containing the cream to re-

main stationary in the freezing mixture.

Hewlett |folio 467] states that it was his practice after

putting the cream in a tin can, and covering it tightly

with a tin cover, and placing the can in a freezing mix-

ture contained in a wooden vessel, to then cover the whole

with a blanket, and set it aside and leave it stationary till

frozen.

Dartois \folio 473] states that although it was his

practice to work the cream while being frozen, it would

freeze without such working. Thus it is fully proved

that one of the old ordinary uses of the ice cream freezer

was to freeze the cream without its being agitated.

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But if it had been the universal practice to stir the

cream while being frozen, that fact would have been im-

material, because— 7

Ist. The patent is for preserving—and if frozen, it is

for preserving—in a frozen state after being frozen, and

there is no pretence that the cream was stirred or the can

containing it turned by anyone while it was being kept

or preserved in a frozen state.

Morrow & Day did not stir their cream night and day

during the twenty-four hours, nor did Dartois stir his

twenty-four days while it was being preserved in a frozen

state.

2d. The patent is not for allowing the article to remain

stationary while being frozen or preserved in a frozen

state, in contradistinction to its being moved while being

thus frozen or preserved. Turning or moving a fish

while being frozen or preserved in a frozen state by the

use. of the apparatus described by Piper, would be as

palpable an infringement upon his patent as if the fish

were not so moved or turned.: The ice cream freezer,

and the manner of using it for freezing cream, would

freeze.other articles in place of the cream, without the

least difficulty.

Harrison, at folio 252, says that prior to August, 1857,

he saw a Mrs. Davidson freeze chickens in a covered

pail, which was placed in a tub, surrounded by ice and

salt, having no communication between the inside of the

pail and the freezing mixture.

To put this matter entirely at rest, and show that hard

substances can be frozen and preserved in a frozen state

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by the same process as were used for cream, counsel for

Appellees caused the fact to be illustrated bya fish weigh-

ing about four and three-quarters pounds being so frozen.

This is testified to by Hewlett [folio 466 and 467], and it

demonstrates, what however was obvious without the

demonstration, that solids can be as easily frozen and pre-

served in an ice cream freezer, and by its old and common

use, as anything else, and that all that was necessary to ac-

complish it was to put the solid in the freezer instead . of

the cream.

. On the question of identity between the use of the ice

cream freezer and what is covered by Mr. Piper’s patent,

[I now propose to apply a test which is often invoked,

and which will prove in the most satisfactory manner that -

this patent was ante-dated by the old use of the ice cream

freezer. This test is by considering the use of the ice cream

freezer, as if it were an alleged infringement of the pat-

ent. The question of identity between a patented inven-

tion, and another alleged to be like it is the same, and is

to be determined on the same principles, whether it be

on a question. of infringement or a question of prior use.

If a machine or a process be within a patent on the ques-

tion of infringement, it must also be within the patent

on the question of prior use. It cannot be within the

patent for one purpose, and out of it for another purpose.

A patentee is not entitled to one rule of construction as

against an alleged infringement, and to another rule of

construction as against a prior invention.

In applying this rule to the case under consideration,

it will be seen that if the use of the ice cream freezer had

succeeded, instead of preceding, as it did, the Appellant’s

invention, and had been prosecuted as an infringement,

there would have been no way of escaping the charge.

Let this be tested.

Suppose a suit were now pending by Appellant on his

patent, against A for the use of the ice cream freezer,

and it should appear that Appellant’s invention ante-dated

the use of the ice cream freezer, what could the defend-

ant A, in such suit, say or do to escape liability ?

What would be his defence? He would have to

admit :—

1st. That he had an article to be preserved, and while

in a frozen state.

2d. That it was in a close vessel or chamber.

3d. That he employed a freezing mixture to cool the

air in that vessel.

4th. That the freezing mixture had no contact with

the atmosphere of the chamber in which. the article to

be preserved was placed.

Sth. That he preserved the articles in such preserving

chamber by these means, and while in a frozen state.

With these things admitted, what would remain to be

shown to prove infringement’ Obviously nothing, as

these things constitute exactly the process patented.

It follows, therefore, that the use of the ice cream

freezer is within the patent, and being older than the in-

vention of the patentee, it invalidates the patent, and

it alone is a sufticient defence in this suit.

If, in such suit the defendant were to say cream is a

fluid. the answers would be: Ist. It is not a fluid when

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frozen, and while being preserved in a frozen state; and

2d. It is an article, and the patent is for preserving an

article whether a frozen fluid or other solid, and is not

limited to any particular kind of article.

If he were to say that the practice in the use of the ice

cream freezer was to preserve the cream in a frozen state

for only a short time, the answer would be that if that

were true, it would not be material because the use of

the process is not limited by the patent to any particular

time of preserving; but it is not true, because the testi-

mony shows that the practice was and is to preserve the

cream in a frozen state a long time, and that the time

was extended to any desired length by a continued appli-

cation of the same means, that is by renewing the freez-

ing mixture.

If he should say that in the use of the ice cream

freezer the freezing mixture was outside of the chamber

containing the article to be preserved, the answer would

be that that is entirely immaterial, because the patent

makes no distinction as to which shall be outside of the

other.

If he should say that in the use of the ice cream

freezer the freezing mixture was in a vessel without a

eover, the answer would be, that is immaterial because

there is no such limitation in the patent ; and furthermore,

the evidence shows it was the custom to cover the freezing

mixture vessel with a cloth.

If he should say that in the ice cream freezer the ves-

sel containing the article to be preserved did not have

double walls, the answer would be, first, that is matter

belonging entirely to the construction of the apparatus

and not to the process; the practice of the thing patented

is not limited to a kind of apparatus any further than to

have a close chamber for the article to be frozen or pre-

served in, the atmosphere of which is not to be connected

with the freezing mixture ; second, the claim expressly ex-

cludes any further limitation to kind or construction of

apparatus, and the specification also expressly disclaims

any further limitation, in the following words: “I do

g myself to the use

—

not desire to be understood as continin

of the specitic apparatus above described.”

It is respectfully submitted that the uses proved to

have been made of the ice cream freezer are ample to im-

validate Appellants patent without anything more being

added, and that the Court will not have occasion to look

further. But of the Court shall deem tt worth while

to go further, tt will find numerous other instances of

prior practical use of the process patented, and employ-

ing therein different kinds of apparatus.

WM. DAVIS USED THE PROCESS IN NORTHWOOD.

There is no conflict of testimony on many of the facts

connected with this use, and I propose to first separate

the facts which [ understand not to be controverted from

those which are controverted. The following facts are

proved by the witnesses on both sides, and must be

assumed to be settled :—

ist. The nature of the business in which Davis was en-

gaged required fresh articles on the shortest notice. Par-

ties called at his place in both large and small numbers

for meals, without previous notice, which required fresh

provisions to be on hand to supply them.

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2d. There was no market within three miles of his

place from which he could get supplies to meet these sud-

den demands.

3d. There was no way of preserving meats in a suitable

condition for use, except in a cold atmosphere.

4th. The use of cold atmosphere as a means of pre-

serving was familiar to Davis as well as to others. The

cold atmosphere for preserving meats in warm weather had

been employed by all classes of people from time im-

memorial. Some for that purpose had put their meats in

ice houses; others had put them in refrigerators; others

had hung them low down in their wells; others had

sought the coolest places in their cellars.

Sth. Davis had at his place in Northwood all the neces-

sary apparatus and material for creating and preserving

the required temperature of atmosphere which he needed,

and which would be most effectual in accomplishing the

necessary result.

ist. He had and used an apparatus which would

contain the freezing mixture in one apartment,

and any article to be preserved in another apart-

ment, with no atmospheric communication be-

tween the apartments. |

Such were his ice cream freezers, and such,

as Appellant’s witness, Boyd, testifies, was an-

other box which he also had.

2d. Davis had and used freezing mixtures for

freezing; that is, for producing a cold atmosphere

sufficient for that purpose. This was done in

freezing cream and preserving it in a irozen state.

It follows, therefore, that for the purpose of freezing

and preserving meats, Davis needed no apparatus which

he did not have, needed no material which he did not

have, needed no discovery or knowledge of any fact

which he did not have, and needed no necessity of pre-

serving provisions in a cold atmosphere which he did not

experience. The presence and urgency of all these cir-

cumstances combined to induce him to use a cold and

freezing atmosphere to keep his provisions en hand, and

in a proper condition for immediate use.

The necessity of doing it, a knowledge of how to do it,

and the means of doing it, were all present with him.

Under such circumstances, one would naturally expect

that Davis would do exactly what the testimony proves

he did do at Northwood—that is, use the means he there

had to put and keep his meats in the condition which his

business demanded.

With these conceded facts, and independently of any

controverted facts, obviously all that was necessary for

Davis to practice the patented process at Northwood was to

put a fish, chicken, or a piece of other meat in the ice

eream freezer instead of the cream, and let it lie there

long enough to freeze, and then as much longer as he

wished to keep it. indeed, as the patent is not limited

to preserving articles in a frozen state, all that was neces-

sary for Davis to have done to practice the patented

process was to put a chicken or piece of other meat in one

of his ice cream freezers instead of the cream, and leave

it there.

There is conflicting evidence as to whether or not Davis

did practice the process at Northwood, but the weight of

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evidence is greatly in the affirmative, proving that he did

practice it, by freezing and preserving in a frozen state,

fish and chickens, and that he did practice it by preserving

fish and chickens which were not frozen.

On this point there are three witnesses on the part of

the Appellees, S. H. Davis, J. F. Neereamer and Simeon

Fought, and three on the part of the Appellant, consisting

of John Boyd, James Farr and Joseph Finger. On an

examination of the testimony it will be found that that

on the part of the Appellees greatly preponderates over

the other.

ist. The kind of work of Appellant’s three witnesses,

and their opportunities of knowing what was done in the

cellar at Northwood, were not such as would give them

as good an opportunity of knowing how meats were pre-

served by Davis, as the kind of employment and oppor-

tunities of the Appellees’ witnesses would give them.

Boyd, one of Appellant’s witnesses, says his work was

milking cows, setting up ten-pins, turning a revolving

swing, and sometimes farming it and gardening ita little,

and sometimes he made some ice cream.

Farr, another of Appellant’s witnesses, says that his

employment was milking cows and working in the fields.

The other of Appellant’s witnesses says that he milked

twice a day and worked in the fields.

It is proved that Davis’ cellar at Northwood was

divided into several apartments by brick walls [folio 114].

Boyd, Appellant’s witness, says that he went through one

apartment and could see into two or three other apart-

ments, on his way. It does not appear that he went into

those two or three other apartments.

2 a orn RU TO RINT Eo

Farr neither states -nor pretends that he went into

more than one apartment of the cellar.

Finger says that he was never in any apartment of the

cellar except where he saw what he calls an ice box [folio

137].

It was, therefore, impossible for these witnesses to have

known what the other apartments of the cellar contained,

or what was done therein. None of these ,witnesses say

that if articles had been frozen and preserved in some of

the apartments of the cellar, they would be likely to have

known it. Nor are they asked anything on that subject.

How many boxes did these three Appellant’s witnesses

see ?

Finger says that the one he saw was tinned all around

on the inside [folio.137].

Boyd says the box he saw was tiot lined with zine, tin

or anything of the kind [folio 111].

Farr says the box he saw was made like an ordinary

ice box [folio 134].

Boyd says that the box he saw had two compartments

in it, and that there was no communication between them,

[folios 111, 112 and 113].

Finger says that in the box he saw, there was only one

apartment [folio 137. |

Farr says that in the box he saw, there was only one

apartment [folio 134].

Boyd says that the box he saw was made of two thick-

nesses of boards; and that he was told charcoal was

between them [folio 111}.

Finger says, the outside of the box was two inch plank

[folio 1388.]

Boyd, at folio 111, says, Davis had no other business

there then, except dairy and farming business. On the

contrary, it appears, that an important part of Davis’

business was the keeping of a sort of a public house, re-

quiring the preservation of meats in warm weather, for

the accommodation of transient and unexpected guests.

Now, in view of such confusion in the testimony of

these three witnesses, can any one come to a conclusion

as to what they did see, or that they knew what they

were testifying they saw. They either saw numerous

different boxes, or they flatly contradict each other as to

the box they did see. If the former, what were all these

boxes used for? If the latter, their testimony is dis-

credited by its intrinsic contradictions.

What now is the testimony on the part of the Appel-

lees, as to what was done at Northwood ?

S. IT. Davis, one of the Appellees’ witnesses, was em-

ploved to help his father run the place, and. actually

helped do the work of freezing meats, poultry and fish,

(folios 158 and 159]. He, therefore, cannot be mistaken.

If he did not see it and do it, he has wilfully perjured

himself.

J. I. Neereamer, another of Appellees’ witnesses, was

a professional confectioner, and worked for Davis during

the Summer of 1851, from three to five days a week, at

manufacturing ice cream, ete, {folio 433.] He talked

with Davis about using the ice cream freezer for freezing

meats, [folio 433.] He knew that chickens were frozen

in the ice cream freezer by the use of ice and salt with-

out atmospheric communication between the chickens

and the ice and salt, [folios 434 and 486. |

This was done in an apartment of the cellar separate

from where the large box was standing.

He received of Mrs. Davis two chickens, thoroughly

frozen, on the 25th day of July, 1851, which she took

from the box, [folio 434.] It was impossible for this

witness to be mistaken, and his statement is either cor-

rect, or wilful perjury.

Simeon Fought, the other witness on the part of the

Appellees, says that he was often in Davis’ place; saw

frozen chickens there; talked with Davis about his appa-

ratus for freezing them, and went down into the cellar

with Davis to see it, and there saw a box with separate

apartments, with meat and fis: in it, the apartment con-

taining the meat and fish being of tin and separate

from the freezing apartment, {folios 439 and 441.] This

witness talked with Davis about freezing chickens in an

apparatus; he could not be mistaken in that. Davis

took him into the cellar and showed him an apparatus;

he could not be mistaken in that. He saw the apparatus

and meat and fish in it; in this he certainly could not be

mistaken.

The testimony, therefore, as to what was done at North-

wood, stands thus: on the part of the Appellees there are

three witnesses who testify affirmatively as to what they

saw, heard and did. On the part of Appellant there are

three witness who testify negatively as to what they did

not see, hear or do, and this even without showing that

that they had opportunity of knowing all that was done.

Their testimony is not only negative but it is of the weak-

est kind of negative testimony, because it appears that

the facts affirmatively proven by the Appellees’ witnesses

might easily have existed without the Appellant’s wit-

nesses knowing it.

WM. DAVIS USED THE PROCESS AT COLUMBUS.

He moved from Northwood to Columbus in Septem-

ber, 1852, where he kept a hotel one year, and then went

into the fish business, that is keeping fish for sale, [folio

160.] This he continued up to the fall of 1855, being

about two years. His business there required a cold atmos-

phere in which to preserve the article he was engaged in

selling. It was perfectly natural, therefore, for him to,

use the same means he had previously used in North-

wood. It would have been very unnatural for him to

have done otherwise.

But the proof of what was done at Columbus, inde-

pendently of any inference from what had been done at

Northwood, establishes the fact beyond a doubt that the

process was used by Davis at Columbus.

S. H. Dawis says, that at Columbus, during the warm

weather of the years 1854 and 1855, [folio 163] he used

for freezing and preserving fish an apparatus which he

thus describes [folio 161 ]—

“It was one box put inside of another, and that

was packed with sawdust—the space between the

two boxes, [ mean, was packed with sawdust.

There was a partition off at one end of the inside

box about six or eight inches; the partition con-

‘

sisted of tin. Then there was a lid on both boxes,

a lid on the box for the preserving chamber, and

one on the chamber where the freezing mixture

was of ice and salt.”

He then states that there was no atmospheric commu-

nication between the preserving chamber and the place

where the freezing mixture was, and goes on to describe

the practical method by which the apparatus was used.

At folio 161 he says that ice and salt was the freezing

mixture used.

At folios 162 and 163 he says he had in use, at that

time and place, two such apparatuses, holding about 500

Ibs. each.

Witness, himself, [fol. 163] saw fish frozen in this ap-

paratus at this time, and sold them out of it.

At folio 160 he says :—

“We froze what was left over from the markets

three (3) times a week, and when there was any

left over from one market they had to be kept till

the next then.”

And adds, that they sometimes kept over in this way

from one market day to another from one to seven hun-

dred pounds. This witness says that the apparatus thus

used agreed with the model Exhibit A, except the ap-

paratus was a double box, and had non-conducting walls

[folio 163.]

At folio 185 he says, that sometimes he used the ap-

paratus “to put fish in to freeze them, and sometimes put

them in to preserve without freezing.”

SAE sey hE MOOS we

The testimony of this witness is direct and positive,

and consists of a statement of what he saw and actually

did himselt. He describes the apparatus which was used

and which he used, himself. He describes how it was

used, when it was used, and for what purpose. He states

that he, himself, put articles into the apparatus, preserved

them therein, sometimes frozen and sometimes not frozen,

and finally, that he took them out of it frozen and so

sold them.

_ There are no circumstances to discredit this testimony.

The circumstances are all corroborative of it. The busi-

ness engaged in required that the fish on hand should be

preserved in a cold atmosphere. The Davises were fa-

miliar with the means of producing such an atmosphere

by their use of the ice cream freezer.

The apparatus they used for the fish at Columbus was

on the same principle as the ice cream freezer, and the

cold atmosphere was produced with the same materials

that were used for its production in the ice cream freezer.

D. W. Davis, at folios 289 and 290, says that during

the years 1854 and 1855 he worked with his father, at

Columbus, in the fish business, and that they used, for

the purpose of freezing and preserving fish, two boxes

which—at folio 290, the witness says—were like Exhibit

A, only the walls were thicker.

At folio 290 he describes these two boxes in the follow-

ing language :—

“He had two boxes; they were alike, as near

as 1 can recoilect; they were four and a half feet

long, about three feet long, about three feet deep;

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there were two chambers in these boxes—one to

contain the freezing mixture and the other to con-

tain the fish; the walls were about three or four

inches thick ; [ presume they were packed, I don’t

know, I never examined; the boxes were there,

and made, when I saw them first; there was an

opening to each chamber, and a. cover made for

them.”

At folio 290 he says that there was no communication

between the two chambers, and then proceeds | folios 291

and 292], to describe how the boxes were used practically,

viz., that the fish were put in on slat-werk, or shelves, say

300 pounds in a box; that the other chamber in the end

of the box was then filled with freezing mixture, and

kept full; that the fish were frozen.

At folio 292, he says that they took frozen tish out of

the box and delivered them to customers most every

week, and in the fall of 1854, and during the spring,

summer, and fall of 1855.

At folios 303 and 304, he says he took out 6f these

boxes several hundred pounds of frozen fish himself, and

that the boxes, if filled full would all freeze, if the fish

were left there long enough.

At folio 304, he says he has seen the fish frozen all

over the chamber, at a time when the chamber contained

from 100 to 150 pounds of fish.

Now, here is another witness who testifies to substan-

tially the same facts as 8. H. Davis, and he too, states

what he saw and did himself. He participated in the

use of the apparatus, and he took fish in a frozen state

out of the apparatus.

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Here, then, are two credible witnesses, above even

suspicion, who testify to facts about which they could

not be mistaken.

W. W. Riley, at folio 455, says that he boarded with

Wm. Davis, from January to July 19, 1850, in the city

of Columbus. (This was before Davis moved to North-

wood.) That said Davis’ business at that time was keep-

ing a dairy and selling fish on the market; that he used

at that time, for the purpose of preserving fish, a box,

which he describes as follows, at folio 456 :—

“Tle was a well-educated gentleman, and quite

scientific, and constructed a box to put his fish in

aiter they came here; he constructed a box, I

should think, about three and a half oxfour feet

long, and thirty inches high, and about the same

width; it looked like a large chest—something

like a sailor’s chest; he had a smaller box just like

it inside of it, leaving a space between the two

boxes; this space he filled with a mixture of pul-

verized charcoal, | think—something dark—for

the purpose of keeping the cold in and the heat

out-—as a non-conductor, [ suppose; he had a box

inside of the inner box, for the purpose of putting

his freezing mixture in, which was placed either

on one side or one end of the inner box, I don’t’

know which; my impression is, across the end;

this small box was tight all around, with a lid to

it, which closed the treezing mixture up tight;

whether that box was movable or not, I don’t

know ; it seems to me he took it out occasionally

to clean it and change the mixture.”

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At folios 456 and 457, he says that there was a cover

to the chamber that contained the fish, and that there was

no communication between the two chambers.

At folio 458, he says that Davis continued the use of

this box all the time he boarded with him, and then says

that he saw Davis about the year 1853 or 1854 selling

fish out of a box in Columbus, which witness thinks [folio

459] was the same box he had there in 1850.

At folio 461, witness says that the freezing mixture

which Mr. Davis used, was pulverized ice and salt.

This witness, when asked if the fish treated in these

boxes were frozen, says [folios 459 and 460] that he

thinks they were frozen ; [folio 457], that they felt solid

and firm; that he (Davis) used to put them into cold

water when he took them out of the box for family use,

and that Davis told him he did this to take the frost out.

At folio 461, he says that the fish always seemed to be

frosted over. a

The testimony of this witness as to what the elder

Davis practiced at Columbus, before he moved to North-

wood, agrees with what S. H. Davis, on his cross-exam-

ination, states his father had told him. He states thus

at folio 172 :—

(. When did you first see the apparatus marked

“Exhibit C” ; I mean the apparatus of which that

A. At Northwood, two and a half miles from

Columbus.

Q. Was this the first apparatus of the kind that

you had ever seen ?

A. I had seen an ice cream freezer before, but

never saw one used for freezing meats or poultry,

previous to that time; I had seen it used for

cream.

Q. Was this the first apparatus that your father

ever used for the purpose of freezing meats, &c. ?

A. No, sir.

(). What was the first one ?

A. I don’t recollect what the first one was ;

father told me he had one, but I never saw it.

J. F. Neereamer, at folio 435, says that Davis kept a

fish establishment in Columbus about two years, or per-

haps more, after he worked for said Davis. He ceased

i to work for Davis [folio 483] in the fall of 1851. That

said Davis and his son Samuel kept frozen fish during

the summer, and that he bought them sometimes from

one and sometimes from the other; folio 435 he says he

knows how they were frozen, and describes the process

as follows :—

“Well, sir, they were packed in tin cans; there

was a large tub taken and a quantity of salt and

fine ice thrown in the bottom; then the can was

placed on this ice and the can then buried in a

mixture of salt and ice; then this whole tub was

covered tightly, almost to exclude the air, with

cloths thrown over it and a cover; the length

they remained there [ am unable to state.”

It must be remembered that this witness was a con fec-

tioner, and understood the subject he was testifying

about. He could not be mistaken.

Simeon Fought [folio 440] says that the Davises were

engaged in the fish business in Columbus some time

between 1853 and 1855, and that he frequently bought

fish from them which he knows were artificially frozen ;

folios 440 and 441 he says that he bought these frozen

fish in the summer time, and of different members of the

Davis family. Here, again, is a witness who testifies

positively that he bought frozen fish of Davis in the

Jacob §. Ritze, at tolio 450, says that he knew Davis

in Columbus after he left Northwood ; that he purchased

fish of him often; and [folios 450 and 451] that some-

times they were frozen and sometimes they were not.

When asked, “Can you tell whether you purchased

frozen fish one hundred times or no more than five,” he

says he certainly did more than five times. He says

they were frozen in the summer time [folio 451]. At

folio 453 he says that sometimes the fish which he bought

of Davis were frozen so hard that he had to thaw them

apart ; and at folio 454, on his re-direct examination, he

says he bought frozen fish of Davis in the market.

Here are six witnesses who give positive testimony that

the Davises froze fish artificially in Columbus, and three

give positive testimony as to the apparatus used for that

purpose. These witnesses all had the best opportunities

for knowing what was done and how it was done.

S. H. Davis [folio 160] was in the fish business with

his father.

D. W. Davis {folio 289) was also in fish business with

his father.

‘

W. W. Riley [folio 455] boarded with Davis in fore-

part of 1850, and knew of his freezing and preserving

articles at that time, and how he did it, and in 18538 or

°4 knew of his using a similar box.

Simeon Fought [folio 440] frequently bought fish of

the Davises between 1853 and 1855.

J. F. Neereamer {folio 433] was a confectioner for

Davis at Northwood, and after Davis went to Columbus

witness [folio 435] kept up his acquaintance with him,

and bought fish sometimes of one member of his family

and sometimes of another.

Jacob S. Ritze {folio 449] had known the Davises at

Northwood, and supplied them with confections ; [folio

450] kept up his acquaintance in Columbus, and often

bought fish of them when he, witness, was clerk for some

restaurant keepers.

To meet this direct and positive testimony of the use

in Columbus, the Appellant has produced four wit-

nesses, only two of whom had any opportunities what-

ever of knowing what Davis did, and not a single one of

whom is able to swear that Davis did not do and have

all that the Appellees’ testimony affirmatively proves he

did.

James Farr, who does not appear to have known

anything abont Davis when he was in the fish business in

Columbus, merely says [folio 135,] that he never heard

of any artificially frozen fish in Columbus. According to

this witness’ own testimony [folio 133], he worked for

Davis in Columbus, at the hotel, from September, 1852,

to April 1, 1853, and from that time to October 22, 1853,

at bottling ale. It does not appear that he ever saw or

heard of Davis or any of his family after that date. It

ras after Farr left that Davis was in the fish business in

Columbus—after he left Northwood.

iram Simonton {folio 139] says he kept a hotel in

Columbus in 1853 and 1854; and that he bought fish

from Mr. Davis for his’ hotel, but that Davis [folio 140]

was not his regular fish dealer.

Then, ‘at folio 1389, he says that he never bought, dur-

ing these years, of Davis, or anybody else, artificially

frozen fish, and this is all he knows about it. This is

not inconsistent with the fact of Davis selling frozen fish

to others. It does not appear that this witness bought

any fish of Davis in the summer time.

Peter Ambos is called, folio 141, to swear that he

was a member of a firm of confectioners and restaurant

keepers from 1852 to 1856; that it was no¢ his business

to do the marketing in those days, and that he did not

‘ know anything about artificially frozen fish at that time.

Jacob 8S. Ritze, the man who did do their marketing, tes-

- tifies in behalf of the Appellees that he dd know of

such artificially frozen fish. This is characteristic of the

testimony in behalf of the two parties. On one side the

testimony is of what the witnesses had an opportunity

of knowing and did know; on the other side the testi-

mony is of what the witnesses did not have an opportu-

nity of knowing, and therefore did not know.

There is one other witness, Charles A. Wagner, called

by the Appellant to say he never knew or heard of

Davis having any artificially frozen fish; and although

he appears [folio 132] to have been engaged in the fish

RES Sg SIR SS ANS ARIE OE ECCI SEEPS Ea PS SESH BOE A MA

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‘

business at the market in Columbus when Davis was,

yet he says Davis might have had such fish without his

knowing it, and [folio 133] explains one way how that

could have occurred in the following language :—

“Tf he had frozen fish on his stand I would

probably have seen them, it I was in market; but

I don’t think he would expose them on the stand

in the summer tjme.”

This witness seems to have been too honest to have

his testimony exposed to an erroneous inference of in-

genious counsel ; and very properly explodes their theo-

ry by saying that if Davis had the frozen fish where he

would not have been likely to have them, he probably

would have seen them.

All the testimony shows that Davis in the summer

time kept his fish frozen in his boxes till taken out to

deliver to his purchasers. He would have acted the

part of an insane man if he had done otherwise. The

explanation of this witness applies equally well to the

testimony of other fish dealers who testify that they

were neighbors of Davis in the market, and did not see

him have frozen fish.

DAVIS USED THE PROCESS IN DETROIT.

ON ADAMS AVENUE.

He used 7t on Adams Avenue.

Three witnesses, A. Haryman, 8. H. Davis and D. W.

Davis, testify positively to this use.

Albert Haryman states [folio 254] that he went to

the house of Davis, on Adams avenue, for a mess of

303

fish, in November or December, 1856, and that Davis

took fish from a box and gave him, which were frozen,

and that Davis told him they were artificially trozen ;

that these were white fish, and later than the season

when they caught white fish, and that they were frozen

solid.

As the witness says, this was in the month of Novem-

ber or December, if that stood alone, it might be said,

although improbable, that these fish had been frozen in

the natural state of the atmosphere, yet this cannot be

assumed because Davis told the witness that they had

been artificially frozen.

S. H. Davis says [folios 189 and 190] that he made the

wood-work of this box that was used on Adams avenue,

which he thinks was about tive feet square; that the me-

tallic tube was procured by his father, and was about ten

inches in diameter; that Exhibit B is a model of this ap-

paratus, and that it was used on Adams avenue during

the winter of 1856-1857, about three months. :

D. W. Davis says [folios 298 and 299] that he knew

that the apparatus, of which Exhibit B is a model, was

used on Adams avenue. At folio 293 he describes this

apparatus in the following language :—

(). What, if any, means of preserving fish did

your father use prior to 1858 ¢

A. He had a box with non-conducting walls

and a tube running down into it. He had a door in

the side of it and the waste water ran out through

a small pipe in the bottoin of the tube. There

was a little plug cap that fitted into the tube and

Be 20S NW SP RET ORE TE RETIN BE BEE SR BRANT PSS te

ule

Rene are a

I should judge the tube was tight so that there

was no communication from that irto the box.

It got stopped up once or twice, filled ‘up with

water, that is why I think it was tight.

(. How does the box you have described cor-

respond with Exhibit Bb %

A. It corresponds with it, with the exception

of the walls; the walls were thicker.

To meet this testimony ot D. W. Davis and 8. H. Da-

vis, who located the house on Adams avenue west of

Woodward avenue, the Appellant called two witnesses,

the years 1856-7-s, J. L. Langley was assessed for water

rents, and therefore must have owned or occupied the

easterly half of a house standing in lot 14, on Adams

avenue. He does not say that the rents of that lot or

house were assessed against Langley. He then says that

in May, 1859, Dr. Day “ was assessed for the same prem-

ises,” that is, for the same premises that Langley was

assessed for, but what premises they were appears in no

way except by inference.

flolbrook says that there were only two double houses

on Adams avenue west of Woodward avenue, and be-

tween it and the next street; that he owned the whole

of one and the west half of the other, and that Davis did

not live in what he owned; that Langley, in 1856-7, re-

sided in the East half of the double house on Jot 14, and

that he never knew Wm. Davis till about ten years after,

namely, in 1866. So far Case and Holbrook have spoken

only of house on lot i4. The cross-examination of Hol-

brook is important. On his cross-examination he says

that Spillane owned the east half of the house on lot 11,

and that he does not know who lived there in the fall of

1856 or 1857, and that he cannot say whether Davis

lived in that house in 1856 or 1857, or not.

In explanation of and to clear up this apparent confu-

sion, Mrs. Spillane, the widow of the man who Holbrook

says owned the house on lot 11, was called on the part of

the Appellees, and she swears [folio 364] that she lived

in that house next to Holbrook’s, and moved out in the

fall of 1856, for Davis to move in. She says the house

was No. 10 Adams avenue. Whether the numbers have

been changed, or why the lots had one number and the

houses occupying parts of the lots had another, causing

Holbrook to say No. 11, and Mrs. Spillane No. 10, does

not appear. Undoubtedly Holbrook and Mis. Spillane

referred to the same house. Holbrook testified on his

cross-examination [folio 92] as follows :—

Q. 1. Did you ever know a man by the naine

of Spillane ¢

A. Yes, sir.

(). 2. Did he not in 1856 or 1857 own a part or

the whole of one of those double houses, of which

you have spoken ¢

A. Mr. Spillane owned the east half of that

house which is next to my residence, and on lot 11.

(. 3. Do you know who lived in that house in

December, 1856 ?

A: Ne I do not.

Q.4. Do you know who lived in that house

any time in 1857 ¢

A. No; I can’t place any person there.

Mrs. Spillane says that she moved out of this house

‘

in the fall of 1856, for Davis to move in, and there is

nothing in contradiction of that.

Albert Haryman, a witness on the part of the Appel-

lees, after testifying that Davis lived on Adams avenue,

said he thought the house was east of Woodward ave-

nue. To show that the house was not on the east side

-of Woodward avenue, Appellant called Eugene Robin-

son, a surveyor. This was not necessary, because it had

already appeared, both from the testimony of Holbrook

and Mrs. Spillane, that the house was on the west side

of that avenue, and that Haryman was under a wrong

impression when he said he thought it was on the east

side.

To further prove that Davis lived on Adams avenue

in the fall of 1856, the Appellees called his two daughters,

Mrs. Rayl and Mrs. Worman [fols. 243 and 247-248], who

testify positively to their father’s residing there in the

fall of 1856. A. D. Mitchell also testifies to his resi-

dence on Adams avenue, making seven witnesses who

testify positively to Davis living on Adams avenue, and

three who testify to his having used the patented pro-

cess there. To be able to contend that he did not use

the process there, the etfort was made to prove that he

did not live there; this eftort is met and rendered use-

less by the positive testimony of the seven witnesses

who testifv that he did live there.

All the testimony respecting Davis’ living on Adams

avenne concurs in establishing the following facts, and

there is nothing in contradiction of them :—

Ist. That Davis did live somewhere on Adams avenue

in 1856.

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2d. That he lived in some house.

3d. That that house was on the west side of Wood-

ward avenue.

IT need not here add that the discrepancies in the de-

tails of the statements of witnesses, when they agree on

the essential facts, tend to strengthen rather than weaken

their testimony. It is not material whether Davis lived

in a part of a single honse or a part of a double house,

or whether it was at No. 10 or No. 11, or whether it was

on the west side or east side of Woodward avenue, so

long as all of the witnesses who had knowledge on the

subject testify that he lived on Adams avenue, and there

used the process.

There is no attempt to prove that Davis did not use

the process in the fall and winter of 1856 otherwise

than by showing that he did not live on Adams avenue

as the Appellees’ witnesses say he did. The issue made

and contested respecting his use in the fall of 1856, is

only as to whether or not he then lived on Adams ave-

nue, and the testimony is conclusive that he did live

there.

ALSO IN JEFFERSON AVENUE.

Davis used the process on Jefferson avenue.

It is not denied that Davis lived on Jetterson avenue.

There are seven witnesses who testify that: Davis used

the process at the Chapaton House on Jefferson avenue:

S. H. Davis [folio 190].

D. W. Davis | folios 299 and 301].

S. Barlin [folio 265 to 268}.

G. H. Harrington [folio 401 to 404}.

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This witness describes the apparatus used, where it

stood, and saw fish taken out of it in a frozen state.

A. D. Mitchell [folio 334 to 337].

Mrs. Rayl [folio 243 to 246] says her father left Adams

avenue in 1857, and then went to live on Jefferson ave-

nue; that he was there in the fish business, and she saw

frozen fish there in warm weather; they were hard; that

she saw there a box for preserving fish; and saw frozen

fish taken out of the box.

Mrs. Worman, another daughter of Wm. Davis [folio

248], testifies, although she was young, that she remem-

bers that her father was in the fish business on Jefferson

avenue, and of seeing frozen fish there.

Here, then, are seven witnesses respecting what was

done on Jefferson avenue, six of whom saw the appa-

ratus used and knew of fresh fish being frozen in it,

being five, without either of the daughters. How, now,

does the Appellant attempt to meet this testimony, as

to the use on Jetterson avenue ?

The only way he attempts to answer this testimony is

by undertaking to show that Barlin was not in Detroit

at the time he says he was.

Well, what if he was not? What if he was mistaken ?

Is this an answer to the positive testimony of the five

other witnesses who testify to what they saw there?

No attempt was made to prove directly that the process

was not used there, or that nothing of the kind was

known there by any witness who had an opportunity of

knowing, or by any cireumstance. What matters it,

therefore, in regard to the fact, or the proof of the fact,

Ritteeceeen a .—— 4

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whether Barlin’s testimony is in or out of: the case ?

Suppose it to be out, there still remains the testimony of

five witnesses who testify to their knowledge of the fact

of use at this place. Are not five witnesses sufficient to

prove one fact ?

As to whether or not Barlin worked for Davis on Jef-

ferson avenue, the testimony is conflicting. And as the

testimony of the other witnesses is sufficient to establish

the fact, without that of Barlin, the Court might prop-

erly omit an examination of the testimony to ascertain

whether Barlin did or did not work for Davis at that

time. The testimony, however, on the part of the Ap-

pellees, to show that Barlin did then work for Davis, is

mostly direct and positive, while that on the part of the

Appellant, to show that he was not there, is chiefly cir-

eumstantial and inferential.

I will first call attention to the testimony on the part

of the Appellees showing that Barlin was in Detroit.

Barlin swears positively [folio 265,| that he came to De-

troit in 1856; and that he [folio 266 to 269,] worked for

Davis in freezing articles, breaking ice, &c., from that

time.

S. H. Davis |folio 377,| says that Barlin worked for

Davis in 1857, breaking ice and helping to handle fish,

sawing wood, &e.

W. RR. Hines [folio 380 | knew Barlin in 1857 or 1858,

and says that Barlin worked for Davis around the house:

saw him several times [folio 584}.

Mrs. Rayl, a daughter of Davis, says Barlin worked

for Davis first in 1857, and that she taught him to read

and write on a slate [folio381]. This is a fact which the

witness would be likely to remember.

BE ENO TE ECR LG ONT EP IRS ES

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Mrs. Worman says that Barlin worked for her father

in 1857, as near as she recollects [folio 378].

Geo. W. Hector says he worked tor C. Shippay in

1856, in Detroit, and then knew Barlin, and was with

him every day for a month or so, and fixes date by

Buchanan’s election [folios 371 and 372]. This is a cir-

cumstance the witness would be likely to remember.

J. F. Mitchell says he knew Barlin in 1857, and fixes

date by rent receipt, and that Barlin eut wood for him

[folio 390°}.

W. P. Smith says he knew of Barlin in Detroit, in

1857, for witness was then with Sutherland & Foote

(folio 390}.

G. De Baptist says that as near as he can recollect, he

saw Barlin in or about the market in Detroit trequently

in 1857 [folio 390*].

Harrington remembers a colored boy at Davis’ house |

(folio 404].

I will next call attention to the testimony on the part

of the Appellant, offered to show that Barlin was not in

Detroit.

Mariha J. Johnson, a colored woman, does not say

that she knew when Barlin’s mother came to Detroit first,

but testifies ouly from what she says Barlin’s mother told

her. Among other mistakes, she says the war com-

menced in 1860.

Peltier says that he found Barlin’s name in a directory

of 1862, but could not find it earlier. Martha J. Johnson

said the Barlins were there in 1860. If that be so, it

Sg POOLE LENO Re a ket ct

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. HOOD LE: MOBS

accounts for Barlin’s name not being in the directory in

1857, because there was no more reason why their names

should have been out of the directory in 1860 and 13861,

when they were there, than there was why it should be

eut of the directory previous to that time.

S. Clark, a colored woman, says that she twice lived

in Sehulte’s house. That when she was there the first

time Barlin’s mother was not there; that when she went

there to live the second time, which was during the war,

Barlin’s mother was there. On her cross-examination

she says that she does not know how long before the war

she moved out of Schulte’s house the first time; that she

don’t know whether it was three years, six years, or how

long. This testimony.does not tend to prove that Bar-

lin’s mother was not in Detroit in 1857, because, if it

were six years before the war that the witness moved

out of the Schuite house, it was early as 1855, and there is

no pretence that Barlin’s mother was in Detroit as early

as that.

EBlizabeth Schulte did not profess to know anything

about when Barlin and his mother came to Detroit, but

testifies only from what she says Barlin’s mother told

her, which of course is only hearsay evidence.

Amanda Needham, a colored woman, says nothing

on ‘the subject except that she lived in Schulte’s house

in 1859, and that the Barlins did not like there then.

The witness don’t say whether it was a month, a week or

only a day, that she lived there in 1859.

Anna Thomas, a colored woman, says that she now

knows the Barlins; that she lived one month in Shulte’s

house, and that they were not then there; that she

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moved back probably in 1862, and the Barlins Were

there, and she never knew them before. Now, if this

witness didn’t happen to form the acquaintance of the

Barlins during the short period of a month, when she

was there the first time, she would not have been likely

to know whether they were there or not at that time,

but would know them now from the acquaintance she

formed with them in 13862.

R. Morton, a colored man, says that he lived in

Schulte’s house in 1859, and that the Barlins were not

then there. He gets at the time only by an entry in a

Bible, without its appearing when the entry was made,

or by whom it was made.

There are five more witnesses on this subject, on the

part of the Appellant, three of whom were colored, but

those whose testimony has been noticed may be regarded

as a fair illustration of what the others are.

After wading through this mass of irrelevant and ran-

dom evidence let us now return to what is important,

and see if the statements of Barlin are not consistent and

uncontradicted, to the effect that he worked for Davis,

on Jefferson avenue, as he states he did.

Barlin [folio 265] says that he came from New Or-

leans in October, 1856. That he got acquainted with

Davis in the spring of 1857. That [folio 268] he lived

t No. 125 Lafayette street East.

The great effort made by Appellant to show that

Barlin was not in Detroit in the fall of 1856, was to

prove that he did not at that time live in certain houses.

Now Barlin swore that he lived at 125 Lafayette street

Kust, and not a single witness was called by the Appel-

lant, who could swear that Barlin did not live at 125

Lafayette street East, at the time he says he did. So

that his testimony as to this controlling fact is entirely

uncontradicted.

USES OF THE PROCESS BY DAVIS, ON THE DOCKS AT DETROIT.

“On the De Garmo Jones Doek.

It appears from the testimony that it was the practice

of Davis to receive fish as well as other articles, and

pack and re-ship them, and that he did this sometimes

on docks, and that preparatory to packing fish in the

summer, he would freeze them. This he could do, and

did do, by having his apparatus setting at any convenient

place on a dock, either out of doors or in a building.

Fish business at Detroit at that time [folio 208] was

very light; nothing like what it is now. It would not

have been profitable to engage in it extensively.

Davis used the process on this dock.

Norton B. Rowley, a dealer in scales, whose business

was located on Woodbridge street [folios 225 and 226),

says that he saw Davis have frozen fish on this dock in the

summer of 1857, and that he had a fish-box there which

he opened for the witness, and in which the witness saw

fish frozen stiff—thinks as much as one hundred pounds

--and [folio 227] a cup of frozen milk. This, he re-

members, was the year after Fremont ran for President.

That Davis showed where the freezing mixture was, by

which the fish were frozen, and that it was in a box,

which was inside of the other box. That this fish

box [folio 228] was not in the warehouse, bat was on

the dock; that [folio 226] it was on Sunday and the

hark alae a aa

‘

rig

witness was on the dock waiting for the Saginaw

boat to come in. He was expecting an engine to come

on that boat for his shop.

Albert Haryman says, at folio 254, that he got

acquainted with William Davis in the fall of 1856, on a

dock ; that witness’ business then was checking goods on

the dock ; that [folio 256] in the spring of 1557 he was

first mate of the steamboat Bay City, and that during

that spring and the fore part of the summer, they carried

a good deal of fruit and perishable property for Mr.

Davis, who requested witness to take particular care of

it; that he saw frozen fish in the possession of Davis in

the summer of 1857; that Davis told him he would give

him a mess of fish to take home, and did give him a mess

of frozen fish; that he saw the box where the fish were

kept by Davis; that it was from 4 to 6 feet long, about

3 feet deep, and 3 feet wide, with a partition of tin across

one end; that the box had an ontside and inside lid to

it; that, as he understood from Mr. Davis, the walls of

the box were made double; that * Exhibit D” resembles

the box he then and there saw; that there was ice and

salt in one of the chambers of the box, and fish in the

other, which were frozen solid; that he had fish out of

this box at two different times [folio 256 to 258]; that he

thinks this dock, where the box was, was the De Garmo

B Ones Dock.

The box, its construction, and the frozen fish and tlie

season of the year, are facts which, from the nature of

the circumstances, are such that the witness could not

be mistaken about them. He was not sure that it was

the De Garmo Jones Dock, but it is entirely immaterial

whether it was that dock or anuther.

On the Barnum Dock.

NV. LB. Rowley {folios 228, 230, 231,| says that Wm.

Davis’ plave of business in 1857 was on Barnnm’s Dock.

S. [T, Davis says the same thing, but that they only

procured storage there, and shipped stuff over the dock,

a part of which was fish [folio 194}.

In opposition to this the Appellant calls J. W. Barnum,

G. C. Jones, J. C. Hatch and George Weber. These

witnesses corroborate Appellees’ witnesses to the extent

that Davis did do business there in the summer of 1857,

in shipping articles to other markets, but say that they

did not know of his freezing fish there, or having a box

there for that purpose. This may be so, and yet, not-

withstanding that, he may have had it there. These

witnesses do not agree with one another in their recollec-

tion of what did occur. Barnum says [folio 123] that

Davis had shipping business at that dock. Hatch says

[folio 60] that he did not, to his knowledge, do such

business over that dock. This same Hatch [at folio 59,

first says positively that Davis did not, at that place,

freeze fish, or use a box there for any such purpose ; and

then, on his cross-examination [at folio 60], he says that

he does not know whether Davis had a box there for

freezing fish or not.

Jones says simply that he has no recollection of Davis

having a box on that dock to freeze fish. Weber says

that he was casually in and ont of the warehouse on the

Barnum dock, and does not remember seeing any box

for freezing fish. His testimony shows that his memory

was very treacherous in other matters.

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On Other Docks.

Thomas S. Sprague, who is President of the Toledo,

Thorntown & St. Louis Railroad Co., is called as a witness

on the part of the Appellees as to what he saw and knew of

Davis’ operations in freezing fish, and packing frozen fish

for shipment on a dock in Detroit. This is a witness of

intelligence and position, which entitle his testimony to

the fullest credit, and even if what he says was not

corroborated by other evidence, it ought to be sufficient

to establish the facts which he testifies to.

The testimony of this witness proves that Davis, while

living in Sandusky, and before he moved to Detroit, to

wit, in the summer of 1856, came to Detroit with his

apparatus for freezing fish so as to pack them in a frozen

state for transportation to Cincinnati.

Mr. Sprague’s deposition is folio 824 to 334,in which

he says, that in the summer of 1856 he saw Davis on the

dock in Detroit, where the Sandusky steamers landed,

taking frozen fish out of a box and packing them into a

barrel in sawdust. He describes the difference between

the box which Davis then and there had, and Exhibit B.

Davis opened the box and showed him its contents. It

contained white fish and trout, of which he handled

some, and they were rigid frozen. Davis told him that

the fish he was packing in sawdust were going to Cincin-

nati. Mr. Sprague at this time purchased of Davis a

white fish and a trout. Some two or three weeks after

he purchased more fish of Mr. Davis on this dock. Later

in the season he met Davis in the street in Detroit, when

Davis told-him he had just removed from Sandusky to

Detroit.

—— $< “4

The testimony of this witness explains what otherwise

might not be readily understood respecting Davis’ busi-

ness and operation on the docks in Detroit. A part of

this business was to receive fresh fish, prepare them for

sale or transportation by freezing them in his apparatus,

and then sell them

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