and that he never authorized any attorney or any other person to appear for him; and that no one ever had any authority to appear for him in said suit in the State of New York, or to enter his appearance therein, nor did he ever authorize anyone to employ an attorney to ap pear for him in the action in which said judgment was entered; and that he never entered his appearance therein in person; and that he knew nothing of the pendency of said suit in the said State of New York, until the commencement of the present suit in this court; that said Lybrand was a partner in business with said J. Sherman Hall at the time the transaction occurred upon which the plaintiffs brought suit in New York, though said partnership had been dissolved, and due notice thereof published, some six months prior to the commencement of said suit in Newners or not when the debt was incurred, as on York. partners in general, and on that class of cases which affirm the right of each partner, after a dissolution of the firm, to settle up its business. But, in our view, appearance to a suit is a very different thing from those ordinary acts which appertain to a general settlement of business, such as receipt and payment of money, giving acquittances, and the like. If a suit be brought against all the partners, and only one of them be served with process, he may undoubtedly, in his own defense, show, if he can, that the firm is not liable, and to this end defend the suit. But to hold that the other partners, or persons charged as such, who have not been served with process, will be bound by the judg ment in such a case, which shall conclude them as well on the question, whether they were partthat of the validity of the debt, would, as it seems to us, be carrying the power of a partner, after a dissolution of the partnership, to an unnecessary and unreasonable extent. This evidence, being objected to, was overruled by the court, which instructed the jury as follows: "That the record introduced in evidence by the plaintiffs was conclusive evidence for the plaintiffs to maintain the issues submitted to the jury by the pleadings; and that they should return a verdict for the plainting the continuance of the firm. It is well iffs, and against both defendants." A bill of exceptions was taken to this ruling, and the matter brought here on writ of error. The question to be decided in this case is, whether, after the dissolution of a copartnership, one of the partners in a suit brought against the firm has authority to enter an appearance for the other partners who do not reside in the State where the suit is brought, and have not been served with process; and, if not, whether a judgment against all the partners, founded on such an appearance, can be questioned by those not served with process in a suit brought thereon in another State. We recently had occasion, in the case of Thompson v. Whitman, 18 Wall., 457 [85 U. S., XXI., 897], to restate the rule, that the jurisdiction of a foreign court over the person or the subject matter embraced in the judgment or decree of such court is always open to inquiry; and that, in this respect, the court of another State is to be regarded as a foreign court. We further held in that case, that the record of such a judgment does not estop the parties from demanding such an inquiry. The cases bearing upon the subject having been examined and distinguished on that occasion, it is not necessary to examine them again, except as they may throw light on the special question involved in this cause. In the subsequent case of Knowles v. Gaslight Co., 19 Wall., 58 [86 U. S., XXII., 70], we further held, in direct line with the decision in Thompson v. Whitman, that the record of a judgment showing service of process on the defendant could be contradicted and disproved. It is sought to distinguish the present case from those referred to, on the ground that the relation of partnership confers upon each partner authority, even after dissolution, to appear for his copartners in a suit brought against the firm, though they are not served with process, and have no notice of the suit. In support of this proposition, so far as relates to any such authority after dissolution of the partnership, we are not referred to any authority directly in point; but reliance is placed on the powers of The law, indeed, does not seem entirely clear that a partner may enter an appearance for his copartners without special authority, even dur known that, by the English practice, in an action on any joint contract, whether entered into by partners or others, if any defendant cannot be found, the plaintiff must proceed to outlawry against him before he can prosecute the action; and then he declares separately against those served with process, and obtains a separate judgment against them, but no judgment except that of outlawry against the defendant not found. 1 Chit. Pl., 42; Tidd, Pr., ch. VII., p. 423, 9th ed. A shorter method by distringas in place of outlawry has been provided by some modern statutes, but founded on the same principle. Now, it seems strange that this cumbrous and dilatory proceeding should be necessary in the case of partners, if one partner has a general authority to appear in court for his copartners. On the basis of such an authority, had it existed, the courts, in the long lapse of time, ought to have found some means of making service on one answer for service on all. But this was never done. In this country, it is true, as will presently be shown, legislation to this end (applicable, however, to all joint debtors) has been adopted; but it is generally conceded that a judgment based on such service has full and complete effect only as against those who are actually served. Further reference to this sub. ject will be made hereafter. It must be conceded, however, that the general authority of one partner to appear to an action on behalf of his copartners, during the continuance of the firm, has been asserted by several text-writers. Gow, Part., 163; Colly. Part., sec. 441; Pars. Part., 174, n. But the assertion is based on somewhat slender authority. We find it first laid down in Gow, who refers to a dictum of Sergeant Dampier, made in the course of argument (Harrison v. Jackson, 7 T. R., 207), and to the case of Morley v. Strombom, 3 Bos. & P., 254, where the court refused to discharge partnership goods taken on a distringas to compel the appearance of an absent partner, unless the partner who was served would enter an appearance for him. As to this case, it may be said that it is not improbable that the home partner had express authority to appear in suits for his copartner, for, in a subsequent case (Goldsmith v. Levy, 4 Taunt., 299), a dis tringas, issued under the same circumstances, was discharged where the home partner made affidavit that the goods were his own, and that he had no authority to appear for his copartner. These seem to be the only authorities relied on. But, as said before, these authorities and one or two American cases which follow them refer only to appearances entered whilst the part nership was subsisting; and it is pertinent also to add, that they only refer to the validity and effect of judgments in the State or country in which they are rendered. prima facie binding, on the latter. Under the Joint Debtor Act of New York, it was formerly held by the courts of that State that such a judgment is valid and binding on an absent defendant as prima facie evidence of a debt, reserving to him the right to enter into the merits, and show that he ought not to have been charged. The validity of a judgment rendered under this New York law, when prosecuted in another State against one of the defendants who resided in the latter State, and was not served with process, though charged as a copartner of a defendant residing in New York, who was served, Domestic judgments, undoubtedly (as was was brought in question in this court in Decemshown in Thompson v. Whitman), stand, in this ber Term, 1850, in the case of D'Arcy v. Ketchrespect, on a different footing from foreignum, 11 How., 165. It was there contended that, judgments. If regular on their face, and if by the Constitution of the United States, and appearance has been duly entered for the de- the Act of Congress passed May 26, 1790, 1 fendant by a responsible attorney, though no Stat. at L., 122, in relation to the proof and efprocess has been served and no appearance au- fect of judgments in other States, the judgment thorized, they will not necessarily be set aside; in question ought to have the same force and but the defendant will sometimes be left to his effect in every other State which it had in New remedy against the attorney in an action for York. But this court decided that the Act of damages; otherwise, as has been argued, the Congress was intended to prescribe only the efplaintiff might lose his security by the act of fect of judgments where the court by which an officer of the court. Denton v. Noyes, 6 they were rendered had jurisdiction; and that, Johns., 296; Grazebrook v. M'Creedie, 9 Wend., by international law, a judgment rendered in 437. But, even in this case, it is the more usual one State, assuming to bind the person of a course to suspend proceedings on the judgment, citizen of another, was void within the foreign and allow the defendants to plead to the merits, State, if the defendant had not been served with and prove any just defense to the action. In process, or voluntarily made defense, because any other State, however, except that in which neither the legislative jurisdiction nor that of the judgment was rendered (as decided by us the courts of justice had binding force. in the cases before referred to), the facts could be shown, notwithstanding the recitals of the record; and the judgment would be regarded as null and void for want of jurisdiction of the person. So, it may well be that where an appearance has been entered by authority of one of several copartners on behalf of all, that the courts of the same jurisdiction will be slow to set aside the judgment, unless it clearly appears that injustice has been done; and will rather leave the party who has been injured by an unauthorized appearance to his action for damages. There are many other cases in which a judg ment may be good within the jurisdiction in which it was rendered so far as to bind the debtor's property there found, without personal service of process, or appearance of the defendant; as in foreign attachments, process of out lawry, and proceedings in rem. Another class of cases is that of joint debtors, before alluded to. In most of the States legislative Acts have been passed, called Joint Debtor Acts, which, as a substitute for outlawry, provide that if process be issued against several joint debtors or partners, and served on one or more of them, and the others cannot be found, the plaintiff may proceed against those served and, if successful, have judgment against all. Various effects and consequences are attributed to such judgments in the States in which they are rendered. They are generally held to bind the common property of the joint debtors, as well as the separate property of those served with process, when such property is situated in the State, but not the separate property of those not served; and, whilst they are binding personally on the former, they are regarded as either not personally binding at all, or only This decision is an authority which we recognized in Thompson v. Whitman and in Knowles v. Gaslight Co., before cited, and which we adhere to as founded on the soundest principles of law; and, in view of this decision, it is manifest that many of the authorities which declare the effect of a domestic judgment, in cases where process has not been served on one or all of the defendants, and where those not served have not authorized any appearance and do not reside in the State, can have little influence as to the effect to be given to such a judgment in another State. It appearing to be settled law, therefore, that a member of a partnership firm, residing in one State, cannot be rendered personally liable in a suit brought in another State against him and his copartners, although the latter be duly served with process, and although the law of the State where the suit is brought authorizes judgment to be rendered against him, the case stands on the simple and naked question, whether his copartners, after a dissolution of the partnership, can without his consent and authority implicate him in suits brought against the firm by voluntarily entering an appearance for him. We are of opinion that no authority can be found to maintain the affirmative of this question. In the case of Bell v. Morrison, 1 Pet., 351, this court decided, upon elaborate examination, that, after a dissolution of the partnership, one partner cannot by his admissions or promises bind his former copartners. Appearance to a suit is certainly quite as grave an act as the acknowledgment of a debt. It is well settled by numberless cases, that, even before dissolution, one partner cannot confess judgment, or submit to arbitration so as to bind his copartners. Stead v. Salt, 3 Bing., 101; Adams v. Bankart, 1 Cromp., M. & R., 681; Karthaus v. Ferrer, 1 Pet., 222, and cases referred to in Story. Part., sec. 114; 1 Am. L. Cas., 5th ed., 556; Freem. Judg., sec. 232; Colly. Part..secs. 469,470, and n., Pars. Part., 179, n. It is equally well settled, that, after dissolution, one partner cannot bind his copartners by new contracts or securities, or impose upon them a fresh liability. Story, Part., sec. 322; Adams v. Bankart (supra). Appearance to a suit does impose a fresh liability. If there is no doubt of the validity of the demand, it places that demand in a position to be made a debt of record. If there is doubt of it, it renders the defendant liable to have it adjudicated against him, when, perhaps, he has a good defense to it. In our judgment, the defendant, Lybrand, Dissenting, Mr. Chief Justice Waite, Mr. v. JOHN WINSLOW JONES ET AL. (See S. C., 1 Otto, 171-199.) is-another method. tion of a patent, he must be the original inventor, 1. To entitle a plaintiff to recover for the violanot only in relation to the United States, but to other parts of the world. On principle, therefore, it is difficult to see how, after a dissolution, one partner can claim implied authority to appear for his copartners in a suit brought against the firm. It may, in some instances, be convenient that one partner Original inventor, who is-infringement, what should have such authority; and, when such authority is desirable, it can easily be conferred, either in the articles of partnership or in the terms of dissolution. But, as a general thing, one can hardly conceive of a more dangerous power to be left in the hands of the several partners after the partnership connection between them is terminated, or one more calculated to inspire a constant dread of impending evil, than that of accepting service of process for their former associates, and of rendering them liable, without their knowledge, to the chances of litigation which they have no power of defending. 2. To constitute an infringement, the thing used by the defendant must be such as substantially to embody the patentee's mode of operation, and thereby to attain the same kind of result as was reached by his invention. The result need not be the same in degree. 3. A patent may be infringed, although the party does not follow the patentee's recommendation as to method, but accomplishes the same end by an[No. 52.] other method. Argued Nov. 19, 1875. Decided Dec. 13, 1875. Few cases can be found in which the precise question had been raised. The attempt to exercise such a power does not appear to have APPEAL from the Circuit Court of the Unit been often made. Had it been, the question would certainly have found its way in the reports; for a number of cases have come up in which the power of a partner to appear for his copartners during the continuance of the partnership has been discussed. The point was raised in Phelps v. Brewer, 9 Cush., 390; but the court, being of opinion that the power does not exist even pending the partnership, did not find it necessary to consider the effect of a dissolution upon it. ed States for the District of Maine. The case is stated by the court. Messrs. E. N. Dickerson and R. K. Sewall, for appellant. Mr. W. H. Clifford, for appellees. Mr. Justice Hunt delivered the opinion of the court: Jones, as assignee of four several patents for a new and useful improvement in preserving Indian corn, brought his action against Clark, the original defendant, alleging infringements of the same. These patents were issued to Isaac Winslow, and were as follows, viz.: No. 34,928, dated April 8, 1862, for a new and useful improvement in preserving Indian corn;" No. 35,274, dated May 13, 1862, "for a new and useful improvement in preserving green corn; No. 35,346, dated May 20, 1862, and No. 36, In Alabama, where a law was passed making service of process on one partner binding upon all, it was expressly decided, after quite an elaborate argument, that such service was not sufficient after a dissolution of the partnership, and that acknowledgment of service by one partner on behalf of all was also inoperative as against the other partners. Duncan v. Tom-326, dated Aug. 26, 1862. beckbee Bk., 4 Port., 184; Demott v. Swaim, 5 Stew. & P., 293. In the case of Loomis v. Pearson, Harp. (S. C.), 470, it was decided, that, after a dissolution of partnership, one partner cannot appear for the other; although it is true that it had been previously decided by the same court, in Haslet v. Street, 2 McCord, 311, that no such authority exists even during the continuance of the partnership. But the absence of authorities, as before remarked, is strong evidence that no such power exists. The two patents last above mentioned were declared and adjudged by the court below to be void; and from this judgment no appeal has been taken. They are no longer elements in the case before us, and are dismissed from further consideration. The patent first mentioned is for an article of manufacture-a result. The second one is for a process by which a result is obtained. The first is the more full, and embraces all that is contained in the second. The first objection made to the patents is the want of novelty. It is contended that they were anticipated by the Appert process embodied in the Durand patent of 1810; also by the patent of Gunter of 1841, and by that of Wertheimer of 1842. It is an elementary proposition in patent law, that, to entitle a plaintiff to recover for the violation of a patent, he must be the original inventor, not only in relation to the United States, but to other parts of the world. Even if the plaintiff did not know that the discovery had been made before, still he cannot recover if it has been in use or described in public prints, and if he be not in truth the original inventor. Dawson v. Follen, 2 Wash. C. C., 311: Bedford v. Hunt, 1 Mas., 302. Durand's patent is described in his specification, enrolled in the English Court of Chancery, as based "Upon an invention communicated to him by a certain foreigner, residing abroad, of the manner of preserving animal food, vegetable food and other perishable articles a long time from perishing or becoming useless." In describing the nature of the invention and the manner in which the same is to be per formed, he says: "First. I place the said food or articles in bottles of glass, pottery, tin or other metals or fit materials, and I close the aperture so as completely to cut off or exclude all communication with the external air; and he describes the various means of effecting that purpose. "Second. When the vessels are thus charged and well closed, I place them in a boiler, each separately surrounded with straw or wrapped in a coarse cloth, or otherwise defended from striking against each other. I fill the boiler so as to cover the vessels with cold water, which I gradually heat to boiling, and continue the ebullition for a certain time, which must depend upon the nature of the substances included in the vessels and the size of the vessels, and other obvious circumstances which will be readily apprehended by the operator. Vegetable substances are to be put into the vessel in a raw or crude state, and animal substances partly or half cooked, although these may also be put in raw." The specification then declares that the inventor did avail himself of the application of heat by placing the vessel in an oven, stove, steam-bath or other fit situation for gradually and uniformly raising the temperature and suffering it to cool again, and that as the choice of the consumer or nature of the said food or other articles may render preferable, leave the aperture of the vessel, or a small portion thereof, open until the effect of the heat shall have taken place, at which period the same is to be closed. The points following are embraced in this patent: 1. It is for the purpose of preserving for a long time animal or vegetable food. 2. The articles thus to be preserved are to be placed in tin or other vessels, so arranged as to exclude communication with the external air. 3. An aperture may be left in the vessel, at the choice of the operator, until the effect of the heat shall have taken place, when it is to be closed. 4. The vessels thus prepared are placed in a boiler filled with cold water, which is heated to a boiling point, which boiling shall be con tinued for such time as shall be required by the substances contained in the vessels. 5. Although a water-bath is preferred, the inventor declares that he avails himself of heat through an oven, stove, steam-bath or any other situation fit for gradually raising the temperature and suffering it to cool again. 6. Vegetables are to be put into the vessels in a raw or crude state; animal substances raw or partly cooked. 7. The invention is general in its terms, embracing all vegetables and all animal substances capable of being thus dealt with. Winslow's patent of April 8, 1862, No. 34,928, is declared to be for an improvement in preserving Indian corn in the green state. * * The letters patent declare that the first "Success of the inventor was obtained by the fol-. lowing process: the kernels, being removed from the cob, were immediately packed in cans hermetically sealed, so as to prevent the escape of the natural aroma of the corn or the evaporation of the milk or other juices of the same. I then submitted the sealed cans and their contents to boiling or steam heat for about four hours. By this method of cooking green corn in the vapor of its juices, the ends of the cans are bulged out. Strong cans are required, and dealers are likely to be prejudiced against corn thus put up. I recommend the following method: select a superior quality of green corn in the natural state; remove the kernels from the cob by means of a curved and gauged knife, or other suitable means; then pack in cans, hermetically seal the cans, expose them to steam or boiling heat for about an hour and a half; then puncture, seal while hot, and continue the heat for about two hours and a half." At the close, the inventor says that what he claims to secure by the patent is the new article of manufacture, namely: Indian corn preserved in the green state without drying, the kernels being removed from the cob, hermetically sealed, and heated as described. Let us now state the points embraced in this, the plaintiff's patent, and compare them with the points heretofore stated as included in the Durand patent. 1. Winslow's declared object is the preservation of Indian corn in the green state. Durand's is for preserving Indian corn not only, but all vegetable substances in their raw or crude state. 2. Winslow recommends removing the kernels from the cob before the process of preservation is commenced, placing the kernels in cans, sealing them and exposing them to heat. Durand, not limiting himself to the article of corn, provides that the articles to be preserved shall be placed in cans, and subjected to heat in the same manner. He does not stipulate or recommend that the article shall be first removed from the cob, the vine, the twig, or whatever may be the natural support of the vegetable to be preserved, as the corn from the cob, the pea from its pod, the grape or the tomato from its vine, the peach from its stem, the berry from its stalk. Neither does he recommend that it shall not be so removed. His process embraces the article in whatever form it may be presented. It is for the preservation of raw or crude or uncooked vegetables in whatever form they may be presented, and necessarily includes a case where they have been previously removed from their natural support. A prior removal from the stalk would be the natural and, in many cases, a necessary proceeding. 3. Winslow directs that the kernels shall be subjected to the heat for a period of about one and a half hours before puncturing, and for about two and a half hours after the puncturing. The double use of the word "about" in dicates that the time is not to be considered as precisely specified. Durand directs that the boiling shall continue for such length of time as shall be required by the particular substances contained in the vessel. Corn, peas, tomatoes, peaches, berries, aspara gus, may very likely require great difference in the time in which the heat shall be applied to produce the required effect. In each case, that is to be the measure of the time. 4. Winslow says other modes may be adopted so long as hermetical sealing and the use of heat are so managed as to secure the aroma and fresh flavor and prevent putrefaction. Durand declares that he intends to include in his patent, heat through an oven, stove, steam or any other situation by which the temperature is gradually raised and suffered to cool again. The same idea is put forth at the close of Winslow's specification, where he declares that what he claims by his patent is the manufacture of Indian corn in its green state, the kernels being removed from the cob, hermetically sealed and heated. to the same purpose, notwithstanding he may have varied the process of the application, his manufacture will be substantially identical with that of the patentee. Curtis, sec. 312. Erskine, J., says, in Walton v. Potter, Web. Pat. Cas., 585, 607, the question of infringement depends upon whether the plan which the defendant has employed is in substance the same as the plaintiff's, and whether all the differences which have been introduced are not differences in circumstances not material, and whether it is not in substance and effect a colorable evasion of the plaintiff's patent. When a party has invented some mode of carrying into effect a law of natural science or a rule of practice, it is the application of that law or rule which constitutes the peculiar feature of the invention. He is entitled to protect himself from all other modes of making the same application; and every question of infringement will present the question, whether the different mode, be it better or worse, is in substance an application of the same principle. Curtis, sec. 320. It is said, however, that a distinction exists in this: that Winslow's patent provides that the corn shall be removed from the cob before the process begins, and that Durand does not specify this idea. If this be conceded, it does not alter the case. Although he may preserve Indian corn by removing it from the cob more advantageously than by letting it remain on the cob, he does it by using the Durand process. He still applies Durand's process of heating, puncturing and cooling, and no more takes the specify that pears or peaches would be the better preserved if their outer coating should be first removed, or that meat could the better be preserved if the bones were previously extracted. Whether the improvement or combination could be the subject of a patent, it is not material to consider. We are of the opinion that the substance of all that is found in Winslow's patent had, near-practice out of Durand's patent than if he should ly half a century before he obtained his patent, been put forth in Durand's patent. If Durand's patent were now in force in this country, and a suit brought upon it against Jones, the claimant under Winslow, for an infringement, the right to recover could not be resisted. Durand would show a patent intended to effect the same purpose-to wit: the preservation of vegetables for a long time; employing the same process-to wit: the effect of heat upon vegetables placed in a metallic vessel, the gradual cooling of the same, hermetically sealed after puncture to allow the escape of gases. This is also Winslow's process. To constitute an infringement, the thing used by the defendant must be such as substantially to embody the patentee's mode of operation, and thereby to attain the same kind of result as was reached by his invention. It is not necessary that the defendant should employ the plaintiff's invention to as good advantage as he employed it, or that the result should be the same in degree; but it must be the same in kind. Winans v. Denmead, 15 How., 330. To infringe a patent, it is not necessary that the thing patented should be adopted in every particular. If the patent is adopted substantial ly by the defendants, they are guilty of infringement. Root v. Ball, 4 McLean, 177; Alden v. Dewey, 1 Story, 336. In an action for infringement, the first question is, whether the machine used by the defendant is substantially, in its principle and mode of operation, like the plaintiff's. If so, it is an infringement to use it. Howe v. Abbott, 2 Story, 190; Parker v. Haworth, 4 McLean, 370. If he has taken the same plan and applied it It is said again, that "instead of packing the kernels in the vessels selected for the purpose, in their crude state, as suggested in the English patent, the process patented by the assignor of the plaintiff directs that the kernels should be cut from the cob in a way which leaves a large part of the hull on the cob, and breaks open the kernels, liberating the juices, to use the language of the patentee, and causing the milk and other juices of the corn to flow out and surround the kernels as they are packed in the cans, in such a mode that the juices form the liquid in which the whole is cooked, when the cans are subjected to the bath of boiling water.' This argument is based upon an error in fact. There is no such language in the patent. The sole expression of the patent is to provide, first, that the corn shall be removed from the cob; and, second, that it shall be subjected to heat in vessels hermetically sealed. Thus, Winslow recites that difficulty had been encountered by him in preserving the corn upon the cob. This produced an insipid article; and accordingly he says, "My first success was obtained by the following process: the kernels, being removed from the cob, were immediately packed in cans and hermetically sealed, so as to prevent the escape of the aroma, and submitted to heat," etc. There is not a word in the patent to the effect that the kernels shall be cut off in a particular |