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[188]

separation; (4) each foreign patent directs not in exactly the same proportions, all these
the cooling of the product to solidification, distinctive matters being, as a rule, present
so as to be sliced into pieces to be pressed, in smaller proportions in the Mege product
while the United States patent directs a than in the dairy butter. As regards the
crystallization at a uniform temperature, water and salt, the relative proportions may
about 86°, leaving the oil fluid; and (5) vary either way in different samples, de-
each foreign patent provides for the separa-pending upon the amount of salt added and
tion of oil from the stearine by pressing the the amount of working to which the butter
cold-sliced or solidified cakes between hot or of the Mége product has been subjected.
warm plates, while the United States patent
separates the oil from the stearine with the
product at the temperature of uniform
crystallization, namely 86°. The contention
is, that no step of the foreign patents is
found in the United States patent, nor any
equivalent therefor; and that the artificial
digestion, the cooling to solidification, and
the pressing between hot plates, found in
each of the foreign patents, is an absolute
bar to the production of the article which is
the result of the United States patent.

As regards consistency of the more perfect
butter of the Mege patent and ordinary dairy
butter, there will be a substantial identity,
both being solid emulsions of fatty matter
with an aqueous fluid.
. As articles
of food, the Mége product and ordinary dairy
butter are only distinguishable by character-
istics which are variations of degree. Thus
the Mege product, in its simplest form,
would have less flavor and a less agreeable
consistency than good dairy butter, while,
on the other hand, its freedom from disagree-
able flavor would render it superior to a low
or poor grade of dairy butter. When the
flavoring materials were added the Mége pro-
duct would then be extremely difficult to
distinguish from the best dairy butter, but,
as compared with a very fine and highly
flavored dairy butter, would be lacking in
flavor. As regards wholesomeness, I do not
think there would be any difference between
the Mége product in either of its conditions
and ordinary good dairy butter, though the
Mége product would be better in this respect
than a strong or rancid quality of dairy
butter. The same remark applies to the
nutritiousness of the materials compared,
while as regards palatableness the Mege pro-
duct would, I think, hold an intermediate
place between the highest and the lower
grades of diary butter, being better than the
low grades and not quite equal to the highest
in this respect.

Professor Henry Morton, an expert witness for the plaintiffs, says: "There is, of course, a difference in the improved product described and claimed in the Mege patent, according as it is made with or without the addition of materials affecting its color, consistency and flavor. I will therefore refer to each of these conditions separately. When the improved product of Mége, without these additions referred to, is compared with ordinary dairy butter, we find it to be substantially identical therewith, as regards its main constituents and its general consistency and character. Both products then consist substantially of mixtures in nearly the same proportions, in either case of stearine, margarine and oleine, and both are unctuous solids varying in consistency, being quite solid near the melting point of ice, quite fluid at a temperature of about 90°, and more or less soft and plastic at intermediate temperatures. The Mege product, however, differs from dairy butter, On the question of the identity of the in the first place, as to its composition, by Bavarian patent with reissue No. 10, 137, the reason of the presence in the dairy butter of opinion of the circuit court, after quoting several substances not found in the Mége the text of the specification of the Bavarian product. Thus, the dairy butter contains patent, says: "Here we have the directions about five per cent to six per cent of the of the Bavarian patent for producing the peculiar fat known as butyrine; it also con- Mége product, consisting, first, of crushing tains a smaller amount of casein, some trace between cogged cylinders and washing, by [189] of albumen; also extremely minute quanti- which it is finely subdivided.' The Amerities of caprilin, caproilin and caprylin. can patent says: 'A complete crushing is None of these substances would be present in necessary under millstones.' So that it the Mege product, as above referred to, would seem there is only a difference in dewhich would therefore lack the peculiar gree in the Bavarian and American processes, flavor due to the presence of these products. as to the crushing. The American process The amount of water and of salt would also, says the fat must be completely crushed so as a rule, be greater in dairy butter than in as to bruise all the cells. The Bavarian the Mege product. There would also be a patent says it is to be finely subdivided by difference in consistency, inasmuch as the the current of water and by crushing between dairy butter would not constitute a homo- the conical cogs of iron cylinders. In both geneous mass of fatty substance, but would patents Mége uses the word 'crushing' as a be a solid emulsion of such fatty substance title or heading for his directions. The diin which the same existed as minute sphe-rections for the artificial digestion are the roids or particles of the said fatty substance, separated from each other by an aqueous fluid consisting of water, holding in solution salt and traces of albumen and casein. When the Mege product has been converted into a more perfect butter, as he calls it, by the addition of certain substances, as indicated by him, it will then contain all or nearly all the materials found in dairy butter, though

same for the two patents, except that in the
Bavarian he does not instruct specifically
how to make the artificial gastric juice. He
simply says it is the stomach of the pig or
sheep in acidulated water;' but the proof in
this case shows that the mode of making
artificial gastric juice was well known in
the arts before the date of Mége's invention,
and he undoubtedly assumed that the person

who would attempt to use the process covered fat 'with artificial gastric juice (maceration by his patent would have sufficient physiolog- of a pig's stomach in acidulated water), in ical and chemical knowledge and skill to sufficient quantity to immerse it, and the make artificial gastric juice. The American mixture is kept at the temperature of the patent also states that the fat, while in the animal body until the fat appears as a clear process of digestion, is to be kept at a temper- layer on the surface.' Here we have the ature of 103° F., while the Bavarian patent same process as in the American patent, exsays it is to be the temperature of the animal cept that the directions for crushing do not body; but the proof in this case shows that include grinding or crushing under mill103 F. is the temperature of the animal body, stones, and he gives no recipe for making so it would seem there is no substantial differ- artificial gastric juice, except that of the ence between the processes of digestion de- maceration of a pig's stomach in acidulated scribed in the two patents. The third step in water, which we must infer he assumed was the Bavarian patent is entitled 'Cooling, the a sufficient direction to enable an ordinarily process of which is pouring the clear liquid intelligent person, skilled in the art of fat into vessels which have an opening at the manipulating or handling fats, to make the bottom, and containing a layer of tepid gastric juice. The directions for crystalliza water, where they are covered and remain tion require the clear fluid fat to be poured until crystallization has occurred in conse- into a vessel with an opening at the bottom, quence of the cooling. He does not give spe- and containing a layer of tepid water. The cific directions as to the temperature at which vessel is then covered, and, when the cooling the fat is to be kept during the crystallizing and crystallization have taken place, the process, but evidently leaves that to the cooled mass is turned out, cut in slices and skill of the operator, assuming that he will placed in canvas bags and pressed between sufficiently understand by the use of the warm plates, by which method he says there word 'crystallization' what the process must is obtained about sixty per cent of a fatty be. The next step after crystallization is body resembling butter, and identical in the separation of the oleo and margarine composition with lard, but free from odor from the crystallized stearine; and this in and of a perfectly pure taste." [190] the Bavarian patent is accompanied by pressure between the hot plates of a press. Inasmuch as the centrifugal machine, or the hydro-extractor, and the press are analogous devices for accomplishing the same resultsthat is, of expelling the liquid or fluid contents from the mass-there is no essential difference between the Bavarian and American patents in this step of the process. The Bavarian patent is also silent as to the neutralization of the ferments or germs of decay, but it can hardly be possible that any person would enter upon the manipulation of animal fat without sufficient common knowledge and skill to know, without instruction by the specific terms of the patent, that, in order to produce sweet and pure oil or fat, the process of fermentation and decay must be prevented. So that, taking the Bavarian patent as a whole, there would seem to be such an identity in the processes described as to make them essentially the same. Probably because Mége assumed that whoever would attempt the transformation of crude fats under his process in Bavaria would possess more knowledge or experience in regard to the handling of fats than he assumed would be known in this country, as a matter of general knowledge, he deemed it necessary in his American patent to give more minute and specific directions in regard to some of the steps of the process than he did in his foreign patents. Yet we think there can be no doubt that he has substantially described the same process in both patents.

In regard to the Austrian patent, the opinfon of the circuit court says: "In the Austrian patent issued to Múge, October 31, 1869, he describes the first process under the title of 'Perfect washing,' which he says is done 'by crushing the fresh fat just taken from the animal between rollers under a spray of fresh water. The second step, 'Artificial digestion,' consists in mixing the crushed

The opinion then proceeds: "The French and the English patents give substantially the same description for the process as is contained in the Austrian and Bavarian patents. All the steps of the American patent, with the exception of the neutralization of the ferments, are specifically called for and described, although, perhaps, not with all the minute directions which are found in the American patent. All the proofs agree that Mége was a man of inventive genius and high scientific acquirements and it can hardly be possible that if, between the time he took out the French, English and Austrian patents, in 1869, and the Bavarian patent, in April, 1973, and the time when he applied for his American patent, in December, 1873, he had discovered any substantially new and material addition to the process covered by those foreign patents, he would not have specifically named and stated wherein the American differed from the foreign patents. As already said, it seems clear, from Mége's own statements, and those of his solicitors, that the purpose was to cover by the American patent what had been covered by his French patent of 1869, and we cannot believe that, if anything in addition to this foreign patent had been intended to be introduced into the American patent, it would not have been stated in some explicit terms; and there can be no doubt that the French, Austrian and Bavarian patents are substantially identical."

[191]

In regard to the foreign patents the opinion [192] of the circuit court says: "The_scientific experts called by the complainant, Professors Morton, Chandler and Wheeler, have testified that they do not think the invention described in the American patent is found in either of the foreign patents. Their reasons for such conclusion, briefly summarized, are: (1) that the crushing spoken of in the foreign patents is not so complete and thorough as

[193]

that called for by the American patent, where
the fat is to fall from cylinders under mill-
stones, which shall completely bruise all the
cells; (2) that in the American patent the
digestion is to be accomplished with a less
quantity of gastric juice than is called for
by the foreign patents, as the foreign patents
say the crushed fat is to be immersed in the
artificial gastric juice; (3) that by the
Amercian patent the temperature may be
raised above 103° F., 'so that the matter shall
completely separate,' while the foreign pat-
ents limit the degree of heat to the tempera-
ture of the animal body; (4) that in the
foreign patents the process of cooling is al-
lowed to proceed to such a point that the
mass can be cut in pieces or slices, while in
the American patent the product is no' al-
lowed to cool so as to become rigid, but is
retained at a temperature of about 86°.

ents in that regard seems to us wholly im-
material and unsubstantial.

"As to the claim that these witnesses find
in the American patent permission to raise
the temperature above 103° F., we do not
think it is well founded when the whole of
Mége's specifications in his American patent
are considered. Under the third head, 'Con-
centrated digestion,' Mége says: When the
fat has descended in the vessel he melted it
by means of artificial digestion, so that the
heat does not exceed 103° F. Further on, in
the same paragraph, he says: 'He slowly
raised the temperature to about 103° F., so
that the matter shall completely separate.'
Taking these two expressions together, it
seems to us the first limits the second, and
that the directions of the patent are specific
not to raise the temperature above 103° F.
Certainly the language, 'I slowly raise the
temperature to about 103°,' does not author-
ize raising the temperature above that point. [194]
When the distinction immediately before is
that it must not exceed 103° F.; and when
we consider this language of the specifica-
tions in the light of the testimony in the
case, which shows that gastric juice is de-
stroyed whenever its temperature is raised
much above 103° F., we think there can be
no doubt that the eminent scientist who de-
vised this process intended to keep within
the limits in which his gastric juice would
be operative for the purposes of digestion.

"With all due respect to the opinions of
these eminent chemists, we must say that the
points of difference suggested by their testi-
mony are purely wholly differences in degree.
The necessity of crushing is stated in all the
patents, both American and foreign. The
degree of crushing would obviously affect
the quantity of oil extracted from the fat
by the process of digestion, as the only ob-
ject of the crushing is to release the fat from
the tissues in which it is held in its natural
condition. The necessity for thorough and
minute comminution is one that would
suggest itself from any operative's common "The last and final distinction, that the
knowledge. Any man who had intelligence foreign patents contemplated a cooling of the
enough to know the uses of his own teeth mass below 86°, or until it had become stiff
would know the necessity of the complete so that it could be handled and cut, before
comminution of any article to be subjected
to the process of digestion or the action of
the gastric juice. It would hardly require
a scientist to instruct an operative that the
more finely a substance is comminuted the
more direct and prompt would be the action
of the gastric juice and the process of diges-
tion.

the pressure was applied for the purpose of
separating the oleomargarine from the stea-
rine, is a distinction, as it seems to us, with-
out a difference. If the stearine had become
crystallized in the mass, although it might
at one time have been cooled below 86°, when
it was sliced and placed between the warm
plates in the press the oleomargarine would
again become liquid, and flow out under the
action of the warm plates and the press, so
as to secure the separation; and that such
was the result is sufficiently established by
the statements in the foreign patents, notably
the Austrian and English, that about 60 per
cent of a mixture of the margarine and oleine,
of a composition identical with lard, but of
superior flavor, was obtained by the pressure,
and would seem to show, in the light of the
proof in this case, that he obtained as large
a product as is obtained by the process of the
American patent.

"As to the differences in the process of
digestion between the American and foreign
patents, it would seem to be true that the
measured quantity of gastric juice directed
to be used in the American patent is less than
that called for in the foreign patents, because
he gives specific directions as to the number
of liters of gastric juice for 100 kilogrammes
of fat in the American patent, while in the
foreign patent he says the fat must be im-
mersed in the gastric juice; but the proof
shows that the formula for the gastric juice
in the American patent gives a more potent
and effective product, and we presume Mége "A fair test of the question as to whether
may, by his experience and practice under the American patent is anticipated by the
his patents, have ascertained at the time he foreign patents, or is included in them, we
took the American patent that the process think would be: Were a person in this
of digestion could be accomplished with a less country, after the issue of the present
quantity of gastric juice than was described American patent, to commence the manufac-
in his first patents; but this is only a differ- ture of oleomargarine by the precise process
ence in degree, and with a larger quantity described in the Bavarian or Austrian patents,
of gastric juice and not so complete com- supposing that process had not been patented
minution, about the same result would prob- abroad, would the courts refuse an injunction
ably be obtained as with complete and to restrain the use of the process on the
thorough crushing of all the fat cells and a ground that it infringed that covered by the
smaller quantity of gastric juice, especially American patent? We can hardly deem it
if made stronger or more potent; so that the possible that any intelligent court would
difference in the American and foreign pat-deny an injunction if applied for under such

[198]

[199]

competent witnesses to prove that the land
described and claimed by the plaintiffs in
their petition, under a certificate and patent
from the State of Louisiana, "and which is
claimed by defendant under a grant from the
United States government to the State of
Louisiana to aid said railroad, and for which
defendant prays judgment, recognizing their

the plaintiffs' counsel objected, on the ground
that the only part of the Silver Lake tract of
186.57 acres that was in controversy in this
suit was the part alleged to be in the posses-
sion of Turner, "and it was admitted by coun-
sel for defendant that said part or parcel of
land was not worth exceeding two thousand
dollars." The bill of exceptions states that
the objection of the plaintiffs was sustained
by the court, on the ground that the petition
claimed only the number of acres in the pos-
session of Turner; that the judgment in this
case, if for the plaintiffs, could affect only
the land held by him; and that the claim
set up by him or by the Railroad Company
did not make this a suit for more than the
number of acres of land claimed by the plain-
tiffs, "which is about forty acres, more or
less, and is shown by admission of counsel
not to be worth more than two thousand
dollars."

of June, 1853, and the cancellation was duly
notified to Smith; that the sale, entry and
patent were without authority of law, for
reasons set forth in the answer; that the land
was never selected by the State of Louisiana
as swamp and overflowed lands, and never re-
ported to the commissioner of the General
Land Office, and never approved as such by
the surveyor-general, the Secretary of the In-ownership," etc., was worth $10,000; that
terior or the commissioner of the General Land
Office, and never listed or returned by the
Secretary of the Interior to the State as
swamp and overflowed lands; that the State
had never claimed or acquired the land as
such; that the land did not belong to that
class of lands, but to the other class, known
or designated as "shallow lakes," and there-
fore was not embraced in the grant from the
United States of swamp and overflowed lands,
under the Acts of Congress of 1849 and 1850;
that the Company was the owner of the land,
by grant from the United States to the State,
under the Act of Congress of June 3, 1856,
to aid in the construction of railroads in the
State, and which was accepted by the State
for that purpose; that, all the requirements
of said grant having been complied with by
the State and by the Vicksburg, Shreveport
and Texas Railroad Company, the land de-
scribed in the petition, being embraced in
that grant, was acquired by that company,
and duly certified or patented by the United
States as belonging to that company; and
had been legally sold or transferred by it to
the defendant Company; and that the land
described in the petition and sought to be
recovered in the suit was worth at least
$10,000. The answer prayed that the plain-
tiffs' demand be rejected, and for judgment
decreeing the Company "to be the owner of
said land and quieted in possession thereof,
and for general relief."

46

The case was tried by a jury, which rendered the following verdict: We, the jury, find for plaintiffs, and that the land sued for is described in the plat made by W. R. Devoe and filed in evidence." A motion for a new trial was made and overruled, and a judgment was entered against Turner and the Company, adjudging that the plaintiffs were the owners of the land in controversy, and entitled to its possession, the land "being known and described as follows, "-and then giving a description of it by courses and distances, containing thirty-five acres, situated in the Parish of Caddo, Louisiana, and as shown and described on map and survey of same made by W. R. Devoe, civil engineer, on file and of record in said cause." The judgment also ordered that writs of possession issue in favor of the plaintiffs and against the defendants; that the plaintiffs have judgment against the defendants for costs; and that the plea of res adjudicata be overruled. The Railroad Company has brought a writ of error to review the judg

ment.

66

There are six bills of exceptions found in the record. One of them states that on the trial the Company offered three persons as 96

The plaintiffs move to dismiss the writ of
error, on the ground that the matter in dis
pute does not exceed the sum of $5,000, ex-
clusive of costs. The Railroad Company con-
tends that the plaintiffs, by their petition,
claim to be the owners of the entire Silver
Lake tract of 186.57 acres; that the Company
by its answer also claims title to the entire
tract; that it is stated by the court, in one
of the bills of exceptions, that, if the suit
involves title to the 186.57 acres, the land
"is worth about $10, 000, as is admitted by
counsel for plaintiffs;" and that therefore
this court has jurisdiction of the writ of
error.

But we are of opinion that this court is
without jurisdiction of the case. All that
the plaintiffs, in their petition, claimed to
recover was the part of the land which was
in the possession of Turner, alleged therein
to contain 40 acres or more. The answer
alleged that the land sought to be recovered
in the suit was worth at least $10,000, and
prayed that the plaintiffs' demand be rejected,
and for judgment decreeing the Company
"to be the owner of said land." This put in
issue only the land in the possession of
Turner. The judgment is limited to a piece
of land described by metes and bounds, and
containing 35 acres, as shown by a map
and survey of the same, on file and of record
in the cause. The value of that parcel of
land is shown clearly to be not over $2,000
and this is conclusive as to our jurisdiction.
Elgin v. Marshall, 106 U. S. 578 [27: 249],
and cases there cited; Opelika City v. Daniel,
109 U. S. 108 [27: 873]; Bruce v. Manchester
& K. R. Co. 117 U. S. 514 [29: 990]; Gib-
son v. Shufeldt, 122 U. S. 27 [30: 1083].
Writ of error dismissed.

135 U. S.

[200]