Wilson Packing Co. vs. Chicago Packing and Provision Co.

more or less flaring, conical or pyramidal in shape, and made so, presumably, for the purpose of turning out, or discharging, the contents in a solid cake. If, therefore, there was occasion, at the time this patentee entered the field of improvement, to use a pyramidal or conical-shaped can or case, there was no need to call in the aid of inventive genius to secure or contrive its construction. Those who wanted such a can or case had only to take those forms of cans then in general use, and adapt them, by mere mechanical changes, to the purpose for which they were designed. With these conical and pyramidalshaped cans, well-known and described in the art of preserving food, there was not only no room, but absolutely no need, for invention in applying them to the purposes of preserving cooked meats. There is nothing in the proof showing, or tending to show, that cooked meats require any different shaped cans to contain or preserve them than do other alimentary substances. The only advantage gained by this shape, suggested in the patent, is that the solidly-packed meat can be more compactly turned out of this form of can in a a cake, so as to be readily sliced; but it could be equally well turned out of a conical can. In fact, a conical or pyramidshaped or flaring can would seem naturally to suggest itself, from kindred uses in domestic life, almost as a part of the idea or suggestion of packing meat solidly in a can for preservation. To come within this claim of the patent, the can must not only be pyramidal in shape, but it must have "rounded corners" and "off-set ends to support the heads."

The cans shown in the proof to have been used by the St. Louis Beef Canning Company, and by Robert D. Hunter, and others, are eight-sided pyramidal-shaped cans; that is, they are made with four narrow sides or panels and four wider ones, while those used by the Chicago Packing and Provision Company are pyramidal-shaped cans with rounded corners. But this peculiarity of construction can hardly be

Wilson Packing Co. vs. Chicago Packing and Provision Co.

deemed the subject-matter of a patent. In making a pyramidal-shaped can of sheet metal it is obvious that the corners would be naturally more or less rounded, unless special pains were taken to avoid that shape, and turn the corners squarely; and with conical and pyramidal-shaped cans, known to the art, it would not seem to be invention to vary the form of construction by turning the corners with a curve instead of forcing the sheet metal forming the shell of the can into an angle more or less obtuse.

In his specifications describing the mode of constructing his can this patentee says: "Both ends of the body are made slightly flaring, so as to form shoulders or offsets, against which the heads are to rest." Waiving the question whether this feature of construction in a sheet-metal can could be the subject-matter of a patent, it is sufficient to say that we do not find this feature in the cans used by any of the defendants, while the complainants' cans put in evidence show that they do not confine themselves to this form of construction. All the defendants' cans which are shown as exhibits in the case are made by turning a rim of the head down over the outside of the body or shell of the can, and fastening the head in place with solder, and none of them have the "offset" ends called for by the specifications of this patent; and, as we have already said, this seems to be the form of construction practically adopted by the plaintiffs, probably because all packers find they can make a can just as tight and useful, and more cheaply, by turning the head over the outside of the shell, than by following the exact description of the patent. But we also find in the proof, that the cans shown to have been used by Gibbie and by Perl, as early as 1872, show the "offset" ends claimed by this patent. The "Gibbie" can has both the "rounded corners " and "offset ends," while the "Perl" can has the "offset ends as a distinctive feature of construction. We have, therefore, conical and pyramid

Wilson Packing Co. vs. Chicago Packing and Provision Co.

shaped cans, and the "Gibbie" and "Perl" cans, with flat sides, but rounded corners and "offset ends," known and in use long before this inventor entered the field, and we feel compelled to reach the conclusion that there was no novelty in the device of a pyramidal-shaped can with rounded corners and offset ends, as described in this claim. So that it seems clear to us that the first claim of this patent must be held void for want of novelty.

As to the third claim, the proof shows that Marshall packed meat solidly in a can in 1864. He says:

"I then subject a given quantity of the meat to pressure in a box or cylinder until all air is driven out, and the space occupied by the meat agrees with the size of the package it is intended to fill. When the meat is in its place the box is hermetically sealed, and in this state, retaining all its nutritive qualities, the meat will remain perfect as long as the package remains intact.

So Lyman, in his patent of 1870, described his process of packing meats solidly in cans, as follows:

"I grind or otherwise reduce the roughest parts to about the consistency of thick mortar or putty, and then pack the best pieces in this reduced meat, and press it all into a compact mass in the can, the interstices being filled with the reduced meat firmly pressed in, so as to expel the air, instead of filling them with the gravy or with water, as by the common modes. Sometimes I grind the whole of the meat and pack the can with it, compressing it into a solid mass, then heat and seal it up from the air, and re-heat it to conbine any free oxygen that may possibly be left in the can."

Here we have in both cases solid meats, and in one case cooked meats, packed in cans for preservation. Neither of these patentees tell us the shape of their cans. But we cannot see how, with conical and pyramidal cans well known in the art as packages for the preservation of meats and other food,

and the old arts of

cans, there can be

Granite Co. vs. Tilley.

packing or compressing meats solidly into

any invention which could be protected by a patent, in taking these well-known shaped cans and pressing into them cooked meat so as to form a solid mass or cake. The can was old and the meat cake was old.

The result is that the bills will be dismissed.

That part of the foregoing opinion relating to the William J. Wilson patent, was prepared by Judge Drummond; and that portion in reference to the John A. Wilson patent, by Judge Blodgett.-[REPORTER.

THE HINSDALE DOYLE GRANITE CO. vs. THOMAS TILLEY et al.

CIRCUIT COURT-NORTHERN DISTRICT OF ILLINOIS-NoVEMBER, 1881.

IN EQUITY.

CREDITOR'S BILL AGAINST MUNICIPAL CORPORATION.-A creditor's bill can be maintained against a municipal corporation as a party defendant.

This was a creditor's bill filed by complainant against Thomas Tilley, the City of Chicago and others.

The City of Chicago demurred and claimed that a municipal corporation cannot be held to answer a creditor's bill.

C. A. Knight, in support of the demurrer.

This proceeding is in effect the same as garnishment, and the courts hold, and public policy requires, that municipal

Granite Co. vs. Tilley.

corporations should be exempted from answering in mere proceedings to collect debts. Merwin vs. Chicago, 45 Illinois, 133; Chicago vs. Halsey, 25 do, 506; Friebel vs. Colburn, 64 do, 376; Dillon on Municipal Corporations, § 65. Also, the bill makes no allegation that there is money in the treasury of the city to pay this judgment, which the city could only be compelled to pay by mandamus.

H. M. Matthews, Contra.

At law, in the construction of garnishment statutes, there is no generally recognized principle of public policy exempting municipal corporations from their effect: City of Newark vs. Funk, 15 Ohio St. 462; Hadley vs. Peabody, 13 Gray, 200; Bray vs. Wallingford, 20 Connecticut, 416; Whidden vs. Drake, 5 New Hampshire, 13; Wales vs. Muscatine, 4 Iowa, 302; New York Procedure.

Equity jurisdiction is ancient and ample, and not limited by the construction given to garnishment acts: Balch vs. Westall, 1 Pierre Williams, 445; Smithier vs. Lewis, 1 Vernon, 398; Stileman vs. Ashdown, 2 Atkynson, 477; Taylor vs. Jones, 2 Atkynson, 602; Pendleton vs. Perkins & City of St. Louis, 49 Missouri, 565; Lyell vs. Supervisors of St. Clair Co., 3 McLean, 580; Singer & Talcott Stone Co. vs. Wheeler, 6 Bradwell, 225. No execution against the city is asked by the bill, and no question about a mandamus can be raised by the demurrer.

BLODGETT, J.-I have no doubt that this is a proper proceeding against the city. The decree would place the complainant in the shoes of the creditor of the city, and require the city to pay to complainant instead of Tilley.

The court has jurisdiction to entertain a creditor's bill of this kind, with a municipal corporation as party defendant, and I think the demurrer should be overruled.

Let the demurrer to the bill, by the city of Chicago, be overruled.