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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Record and brief
- **Published:** January 1, 1875

## Text

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.

B*

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

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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

5

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

——

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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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7

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

8.

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 —

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10

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,

12

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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13

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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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14

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).

te eee apne epee
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16

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. |

x

1852.

17

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

oe

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

18

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
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19

‘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

;
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20

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

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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-

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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

ct

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

24

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.

+ tes

CE RR

27

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).

28

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

29

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

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31

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

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‘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 evidence of Parsons, p, 60.

George de Baptist swears that be first got. acquainted with Samuel
Barlin in 1857, “as near as he recollects.”

But on cross he says that this was while he lived on Larned street,
and he moved to Larned street in May or June 1865 (Rec. pp. 186,
187).

Wm. R. Hines became acquainted with Samuel Barlin in 1857 or
1858; he thinks in 1858. He was then in business with John Morse
on Michigan Grand avenue, near Randolph street, now occupied by
Fischback, Jeremiah Calnon, landlord. He saw Barlin several times
then, probably about twice a week, for a month or two, sometimes
once a week. Afterward he says for six months (Ree. pp. 181, 182,
cross 25-27).

He knows it was Barlin, because he asked him his name. Bar-
lin was then a boy, but Hines. remembers him so. well that,
though he had never heard his name mentioned meantime, he picked
him out of a group at once, when Samuel Davis took him to where
Barlin was (pp. 182, 183, cross 12-17).

But Jeremiah Calnon testifies that he built and has owned that
building since 1857; that no man named John Morse ever occupied
it; that Thomas G. Morse did, first with a man named Dailey, then
alone (under the Dailey lease, he believes); that Morse left in
November 1857; that he knows Hines, and Hines was not there, to
his knowledge. He has a record of all his rent business, kept by
himself (Rec. pp. 70, 71).

James F’. Mitchell says that he knew Barlin in December 1857.
He fixes the time as when he was then living in Mrs. Wallace’s house
on Fort street. And it was about the time he worked at the Biddle
house (Rec. p. 187, ints. 5-7).

But it appears that he has lived in that house twice. When he
_ was there the second time he has no idea (pp. 187, 191, ints. 9, 10;
eross 57-61). And he has worked twice at the Biddle house; once

3D

in the winter of 1857-8; as to the second time, he can do nothing
more than guess it was 1859, as near as he can remember (p. 190,
int. 48).

He says that he knew Barlin when he first lived in Wallace’s
house ; but he has no reason for thinking so. All he knows is, that
it was sometime while he lived there, and about the time he worked
at the Biddle house.

William P. Smith is also brought to prove that Barlin was in
Detroit when he says he was.

The value of Smith’s testimony depends entirely upon his accuracy
and means of recollection us to the date.
knew Barlin in 1855 (Ree. p. 183, int. 3). He judges that it was
about 1855, because he knows just where he was working (for Suth-
erland & Foote), and when he was married (p. 184, cross-int. 11).
Barlin says that he was not in Detroit till October 1856 (p. 132).

Smith was married in 1861 (p. 185, ints. re-direct 1, re-cross 1).

He began to work for Sutherland & Foote in 1856 or 1857, and
worked there four years (p. 184, ints. 12, 13). Afterward he says
it was two years before he began to work for Sutherland & Foote
that he first knew Barlin (pp. 184, 185, ints. re-direct 2, re-
cross 3).

Still again, after he left Sutherland & Foote (7.e., after 1860 or
1861) he huckstered for several seasons, and then “ went to white-
washing ” (p. 185, int. 20). It was while he was whitewashing
that he got acquainted with Barlin (p. 185, re-direct 3).

He knows that at one time Barlin lived on Lafayette street. At
first he says it was in 1860; afterward he cannot say what year
it was, only that it was between 1860 and 1870, and since he has
lived in Windsor, where he has been seven years (pp. 184, 185,
cross-ints. 2, 18).

He says that he first

e

He saw Barlin
4, 5).

‘several times around the market” (p. 185, ints.

This is the attempt to answer the appellant’s evidence that Barlin
did not come to Detroit till years after he says he was employed
there by William Davis.

It will be noticed that Barlin himself is not recalled. Mrs. Barlin

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36

is not called; neither Mrs. Davis nor David Davis, who must know

whether he was in their employ, is produced. The testimony of .

Samuel Davis (an already discredited witness) and that of his sisters
is more than unsatisfactory. Every disinterested witness is over-
thrown.

We submit that Barlin’s testimony is not only werthless as evi-
dence, but fatal to the Davis defence. For as to this, as in regard
to his testimony about tending the apparatus for ten years after it
was destroyed, there is no possibility of an honest mistake.

George H. Harrington testifies that he saw a box with a tube in it
at Davis’ house on Jefferson avenue in 1857.

He saw it only once to have his attention called to it, and then for
only about five minutes (Rec. pp. 194, 197, int. 17; cross 51).
He does not know whether it had double walls or not; it was
merely a plain box. He is even doubtful whether it was wood or
not (pp. 193,.198, ints. 7; cross 89, 91). He think she saw it
afterward on Congress street, but never examined it there. He
places -it in: the kitchen; no other witness does (p. 194, ints. 23,
24).

There were fish on the floor of the box, frozen (p. 193, int. 13).
What makes him think they were frozen he does not state.

Robert Keith swears that in March 1858 he received at Cincinnati,
from Davis, two barrels of frozen fish, and sold them. He had fre-
quent conversations about that time with Davis about preserving fish,
but he is careful not to say how Davis froze these or any fish.

He fixes the date from memory alone. Is “ pretty sure it was in
March 1858” (p. 138). But in answer to the direct question, what
makes him think so, he says, “ I don’t know as I can think [of] any-
thing. I know it was in the spring, in March” (p. 140).

Afterward he says it was the first year he preserved some quails
(p. 140). But he has preserved quails every year since, and he
fixes that date by memory alone (p. 141).

He has done a large business in fish, frozen vr unfrozen, with
Davis every year from 1857 to 1867 (pp. 138, 140, 141).

All his books and correspondence relating to his transactions in

1858 are destroyed (pp. 138, 139).

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37

He cannot say how hard the fish were frozen (p. 138). As they
went to Cineinnati from Detroit in common flour barrels, ewithout
any wce, and were sold by Keith as fresh fish, there can be little
doubt as to whether they were frozen at all (pp. 188, 139).

Aaron D. Mitchell is produced to prove a use of Piper’s process
in 1857.

He says that he sold frozen fish for Davis while Davis lived on
Jefferson avenue in Detroit, z.e., at some time between February and ,
May 1857. As to the precise date, he thinks it was about the last
of March 1857 (Ree. pp. 162, 164, int. 4). The precise date is
important, because in freezing weather fish can be frozen in any
apparatus, or without any.

How these fish were frozen he does not know (pp. 162, 166, int.
12; cross 35), though he boarded with Davis for weeks on Jefferson
avenue and Congress strect, where the box was used, and sold fish
whieh he saw taken from it, and was employed by Davis to sell his
fish (pp. 162, 163, 164, 166, ints. 17, 37-39; cross 43).

He also says that he sold fish for Davis in the spring of 1857, in
Adrian, Michigan, out of an apparatus of Davis’.

No other witness speaks of this Adrian box. S. H. Davis must
have known of it, if it ever existed. 3

We ask attention to the cross-examination of Mitchell about this
Adrian use (pp. 166-167, 168-170).

He knows but the single fact that he used the box at Adrian —
nothing clse. He says that he found it there when he went; where
it came from he does not know. It was used only on the stree¢
there; was Ieft there on. the street every night, and when he came
away. He knows nothing about Adrian.

He says that Davis furnished the iee; that is all he knows about
it; he does not know whether it was got in Adrian or not; but in
the next breath says that he got it himself three quarters of the time
in a store close to his stand (p. 168, ints. 78-82).

A sufficient reply to. this alleged Adrian prior use is, that no fish
were ever frozen in the box at all. When the fish were Kept in it
three days, he says “zt had the effect to keep them good, or preserve
them; that is ail” (p. 168, int. 30). . And afterward, when he is

38

asked whether he froze fish in this box, he says, “No; £ did not
Sreeze them, but just preserved them over night with this ice and
salt; we sold them out readily ; that is, I mean, within three days”
(p. 171, mt. 144). 7

This disposes of the Adrian apparatus. The patented process was
never practised with it. is

And more, it is significant in regard to the Columbus use. For
this Adrian box was exaetly like the Columbus boxes, and if fish
were not frozen in that in three days, how could the Columbus boxes
have ‘frozen in two hours: at the extreme end of the chamber, or
nearly a whole chamberful, as the Davises say they did? |

Samuel H. Davis swears to the use by his father and himself, in
1857, on the docks in Detroit, of still another apparatus.

Exhibit: D he says is an exact model of this box; many fish
were frozen and preserved ‘in it (p. 90).

The evidence as to the actual freezing by this box is open to the

same criticism as that in regard to previous apparatuses. The fish,

were only put into it to see how long they would keep (p. 90).

But the evidence as to this use on the docks is chiefly remarkable
for the additional light which it throws upon the character of S. H.
Davis, the main witness for the defence, and through him and other
witnesses as to it, upon the nature of the whole defence which he
and his brother have arranged.

D. W. Davis, though he must know as much biota it as the
other, says nothing at all about this box or its use.

S. H. Davis swears that he himself ran it for two months on Bar-
num’s dock in the summer of 1857 (pp. 90, 91, 101-104).

It was used, according to him, in Barnum’s warchouse, where
storing privileges were hired by William Davis of J. W. Barnum.
Lhe use was open and public ; tons of fish were kept in it (pp.
101- 104). |

Je W. Barnum was found and is produced as a witness. His
evidence will be found on pages 67-69 of the Record, and we ask
for it the careful attention of the court.

He personally had charge of all the business on his dock and in
his warehouse; gives the whole history of Davis’ operations on his

39

dock, and it appears that William Davis never hired any part of his
dock or warehouse, or any privileges there at all; that he never had
an apparatus there of any kind whatever; that he never had fish
there frozen or unfrozen.
To the same effect George C. Jones, who was on the dock with

Barnum, and Hatch, his clerk.

Ree. pp. 34, 30-32.

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

wa on sag esses nae Soe SE

‘40

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-

ce pean Mince Ni en

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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

43

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

43

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.

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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

4

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-

6

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

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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

o
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.

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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.

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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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12

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,

é

13

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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14

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

15

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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16

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.

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17

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

Se ee i Sak ae 1B PU

18

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.

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19

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}.

47

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*

20

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.

5

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

-

21

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

22

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-

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23

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

24

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;

he ~~ = _ = Again ss: 2
Ne a ea ac et athena

ba BA Lachine BO 7

Ah liad

— yar oe fi erat
* Fe DAN tine 2

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29

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

[Text truncated at 120,000 characters. The full text is on the page linked above.]

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Aper_scotus_enoch-piper-appellant-vs-george-t-moon-et-al_1875_240%3A0. Public record. Not legal advice.