The Atlantic Giant Powder Company v. Parker.

the use of the cork stopper ("tightly closed") and of the solder, was to keep the nitro-glycerine from leaking out, for, the article says, that "as much nitro-glycerine is poured upon it as can find room in the interstices of the powder." There is also an affidavit of John Schrader, to the effect, that he poured upon some medium sized grains of powder in a vial, as much nitro-glycerine, at about 70° Fahrenheit, as could find room in the interstices of the powder; that the powder became saturated in about three minutes; that the powder was represented as the kind used many years ago, being made in stamp mills, and not either pressed or glazed; and that it is very soft and absorbent, but, like all absorbents, when saturated with nitro-glycerine in the manner above described, the mixture is leaky, and is substantially as dangerous for handling and transport as pure nitro-glycerine. There is also an affidavit of Alfred Mordecai, the author of "Report of Experiments made at Washington Arsenal, in 1843 and 1844,” published in 1845. He states, that the experiments described in that Report were made, and the Report was printed, under his immediate superintendence; that the powder therein mentioned as Swedish musket powder was part of a sample of gunpowder brought from Sweden in 1840, by a commission of officers of the ordnance department of the United States, of whom he was one; that the powder is mentioned in the report of the commission as "a sample of gunpowder from the royal manufactory;" that it was contained in a sealed glass bottle; and that it is correctly described in said "Report of Experiments" as "musket powder, glazed, grain very hard, fracture slaty." It is also shown, by various European books, that powder is described, in 1842, as being pressed in a hydraulic or screw press, and smoothed or polished, to make it dense, and to take off its rough surface, splintering edges and corners, and to make angular powder round; that powder is described, in 1850, as being submitted to a pressure of about 75 tons to a superficial foot, and made hard, and then glazed, with the result of giving an equal degree of density to the grains, and a polish to their surface, and rendering the

The Atlantic Giant Powder Company v. Parker.

powder less susceptible of absorbing moisture; and that it is described, from 1807 to 1861, as being pressed and glazed.

To such affidavits the defendants reply. Carll Dittmar says, that the powder generally used for all purposes, on the Continent of Europe, in 1864 and 1865, was loose, porous and absorbent in character, capable of absorbing 30 per cent. of nitro-glycerine, more or less; that, as a general thing, no hydraulic or screw presses were used in the manufacture of gunpowder, on the Continent of Europe, prior to 1865, nor up to 1869; that the structure of the powders made in this country, at the present day, which have been subjected to the pressure of powerful hydraulic or screw presses, is essentially different from that made with the stamp mills and. without pressure, the former being hard, compact, and slow of absorption, and the latter light, porous, and readily absorbent; and that he has no doubt that the powder alluded to in the Turly article as "common Swedish gunpowder" was a loose, porous, absorbent powder, uncompressed, and that the nitro-glycerine, used in the proportions cited by Turly, was all taken up by the powder and was held by the same, and that the resulting compound was a dry powder, safe to be handled, transported and used. Carl W. Volney says, that all Swedish and German powders that were commonly used in those countries prior to and during 1864, and for some years afterwards, were what is known as stamp mill powder, unglazed and unpressed. The defendant Parker states, that hard grained unpressed powder absorbs and retains, as a comparatively dry powder, safe to transport, handle and use, 30 per cent. of nitro-glycerine.

The Turly article starts out with stating, that what Nobel had invented and patented before January 1st, 1864, was an improvement which made ordinary powder, for blasting and shooting, considerably stronger by adding to it nitro-glycerine. This evidently refers to Nobel's specifications of September, 1863, in the English and French patents to Nobel, referred to in the Rand case; and the article of Turly alludes to no other feature of the compound made of nitro-glycerine

The Atlantic Giant Powder Company v. Parker.

and gunpowder, except that it is stronger in its effects, when exploded, than ordinary powder. The only place in the Turly article where any suggestion is made as to the percentage, in weight, of the added nitro-glycerine, is in the account of the blasting experiments. The description manifestly is narrating an experiment where the cartridge is filled with the two substances at the bore hole and then immediately used. There is no suggestion of a resulting dry powder, capable of transportation, or of any thing but a wet mixture, in a vessel which is to be tightly corked, because it would otherwise allow the nitro-glycerine to leak out, when it is turned with the cork downward, in which position it is inserted in the bore hole. The cartridge is then imbedded in gunpowder in the bore hole, and the gunpowder is fired by a fuse. The description is entirely insufficient as an anticipation of Nobel's invention. All the speculation indulged in as to what the Swedish cannon powder was, and all the experiments to show that a powder which is assumed to be what that was, will, with the addition of the indicated proportion of nitro glycerine, make a dry compound, amount to nothing, in the face of the fact, that the article does not suggest that the blasting compound was a dry powder, or a safety powder, or such a compound as the patent sued on describes. The prior description, to invalidate the patent, must be such as to show that the article described in the patent can be certainly arrived at by following the prior description; and it is not enough to show, that, by the lucky accident of taking gunpowder of the proper quality, a compound may be obtained which is unlike that indicated by such description. By the light of what Nobel has taught in the patent sued on, much can now be asserted to be seen in what was published before, which no one ever, in fact, saw in it before the original of the patent sued on was taken out. There is no evidence that any one, from the Turly article, or by any method supposed to be described in it, made, before the invention in question, as patented by Nobel, in the original of the patent sued on, was made by him, the safety powder which constitutes that

The Oceanic Steam Navigation Company v. Tappan.

invention. So far from this, the Turly article starts out with the assertion, that a mass of liquid nitro-glycerine is quite harmless in and of itself, and that its employment has no greater danger than that of common powder.

The memoranda referred to by Mr. Varney, in his affidavit, show, in common with the English and French patents to which he refers, nothing more than attempts by Nobel to mix gunpowder with nitro-glycerine, and then to burn the nitro-glycerine 'by igniting the gunpowder. After that, he discovered that nitro-glycerine could be exploded in a mass, under given conditions, by detonation, and then its liability to accidental explosion in mass by concussion in handling and transportation was observed, and then followed the invention we are considering.

In every view the case for the plaintiff is such as to warrant the granting of a preliminary injunction, in this case, and the denial of the motion to vacate the injunction against the Neptune Powder Company.

George Gifford and Causten Browne, for the plaintiff.

Charles F. Blake, for the defendants.

THE OCEANIC STEAM NAVIGATION COMPANY

28.

J. NELSON TAPPAN.

T., as Chamberlain of the city of New York, collected from a corporation moneys which it paid under protest, as a passenger tax, under Acts of the Legislature of the State of New York, which the Supreme Court of the United States held to be unconstitutional and void. Afterwards, Congress passed an Act, (Act of June 19th, 1878, 20 U. S. Stat. at Large, 177,) validating the collection of the moneys and declaring that no action should lie to

The Oceanic Steam Navigation Company v. Tappan.

recover them back. The moneys paid were paid to relieve the corporation from an accumulation of penalties, the collection of which could be enforced only by judicial proceedings. In a suit by the corporation against the Chamberlain, to recover back the moneys: Held, that the payments were voluntarily made and could not be recovered back, although paid under protest. Whether such validating Act of Congress is valid, quere.

(Before WALLACE, J., Southern District of New York, May 6th, 1879.)

WALLACE, J. This action is brought to recover moneys. alleged to have been illegally exacted by the defendant, the Chamberlain of the city of New York, and to whom the plaintiff paid the sum involved, under protest. The moneys were collected by the defendant under color of the provisions of Acts of the Legislature of the State of New York, by which, in effect, a tax was imposed upon alien passengers arriving in vessels at the port of New York, to be collected of the master or owner of the ship by which they were landed. These Acts, since the payment of the moneys in suit, have been declared unconstitutional by the Supreme Court of the United States, as in conflict with the clause of the Constitution of the United States which delegates to Congress the right to regulate commerce with foreign nations. (Henderson v. The Mayor, 92 U. S., 259.) Since the payment of the moneys, however, Congress has passed an Act, (Act of June 19th, 1878, 20 U. S. Stat. at Large, 177,) which declares that the acts of every State and municipal officer or corporation of the several States, in the collection of these moneys, shall be valid, and that no action shall be maintained against such officer or corporation, for the recovery of such moneys. The defence of the action is placed upon two grounds-first, that the moneys were paid voluntarily; and, second, that the validating Act of Congress precludes a recovery by the plaintiff.

An action does not lie to recover back moneys claimed without right, if the payment was made voluntarily, and with a full knowledge of the facts upon which the claim was predicated. It is not enough that payment was made under protest by the party paying. The payment must have been com