Thomas v. Dakin.

Being clearly of opinion that the legislature had the constitutional power to authorize the creation of an indefinite number of corporations, be they of one sort or another, by a two-thirds vote, it becomes unnecessary for me to inquire, at much length, whether a general corporation law may actually demand the same constitutional number of voices, as if it had been confined to the direct creation of a corporate bank by name. It was not denied on the argument that such general law was equally within the letter, nor have I been able to see that it is not as much within the spirit of the constitution, as an ordinary bank charter. The evil complained of, and which operated more than any other upon the mind of the convention, I have no doubt was the already inordinate multiplication of banking institutions, and the danger of their increase under the facilities of a mere majority vote. The convention were desirous to avert the curse of an irredeemable paper currency, a necessary consequence of excessive banking. See per Yates, J. in Myers v. Irwin, 2 Serg. & Rawle, 372, 3. That a general banking law is so obviously clear of all tendency to that consequence, as to warrant us in judicially restricting the meaning of the constitution to certain kinds of moneyed corporations, when the words it uses extend to all, seems to me an argument which cannot be sustained for a moment, either historically, or by any rule of judicial construction. It is said that the passage of general laws creating corporations had never been corruptly procured: The same thing may be said of statutes incorporating many institutions for private purposes. If we are to take practical corruption as the limit, it follows that a majority vote will be effectual in creating all sorts of corporations, except those whereof we may have heard of imputed corruption. That would be to dismiss the express prohibitory words of the constitution, and go upon the ground of hearsay and conjecture. If not, we must nullify the clause; for I believe it was not contended on the argument, that we could be judicially satisfied by the reception of legal evidence.

But this branch of the argument need not be pursued; for it was agreed on both sides, at the bar, that we must, on

Thomas v. Dakin.

this record, presume the general banking law to have been passed by two-thirds of all the members elected to both houses. We must clearly do so until the fact is denied by plea. The requisite constitutional solemnities in passing an act which has been published in the statute book, must always be presumed to have taken place until the contrary shall be clearly shown. Should the defendant withdraw his demurrer, and plead specially that the law in question did not receive the assent of two-thirds, as required by the constitution, it will then be in order to pass upon the validity of such an objection.

Being clear that the plaintiff's declaration is sufficient in substance, and that he has technically and aptly set forth his cause of action according to the statute, I think there should be judgment for him, with leave to withdraw the demurrer, and plead on payment of costs.

By BRONSON, J.-I concur fully in the opinions expressed by my brethren, that associations formed under the general banking law are corporations, and that the assent of twothirds of all the members elected to each branch of the legislature was necessary to the passing of the act. But, as at present advised, I cannot concur in the opinion that the legislature has the constitutional power, although two-thirds may assent, to provide by a general law for the creation of an indefinite number of corporations at the pleasure of any persons who may associate forth at purpose.

It was conceded on the argument, that the demurrer does not reach the objection that the act was not passed by a two-thirds vote; and I have not, therefore, considered the question whether we can look beyond the statute book. A plea may render it necessary for us to pass upon that question.

Judgment for plaintiff.

HARMON US. BIRD & BIRD.

A description of an improvement of a machine already in use, in a conveyance by a patentee to a purchaser of the right to vend the same within prescribed limits, is sufficient, if it set forth the nature of the invention and the manner in which it may be made available, with so much particularity as to enable persons of competent skill to construct and apply the improvement; it is not necessary to describe the original machine, If at the time of sale of such improvement it was useful and valuable, the consideration of a note given by a purchaser for the right to vend, &c. is not impeached by showing that subsequenl improvements of the original machine had rendered the improvement valueless.

THIS was an action of assumpsit, on a promissory note, tried at the Genesee circuit in October, 1836, before the Hon. ADDISON GARDNER, then one of the circuit judges.

The suit was brought on a promissory note, the consideration of which was the transfer of a right to make and vend, within certain limits, an improvement in a threshing machine, for which Harmon had obtained a patent in 1829. In the schedule annexed to the patent, the improvement was described, without describing the threshing machine already in use. The deed to the defendants, after reciting that Harmon had invented "a new and useful improvement called a threshing machine," which had been secured to him by letters patent issued under the great seal of the United. States, bearing date the 5th day of August, 1829, and that the defendants had "fully viewed, contemplated and considered the said improvement," granted to the defendants the right of making and vending "the said improvement,' &c. Mechanics acquainted with threshing machines testified, that a mechanic by taking the specification could construct and apply the improvement. The defendants objected that the specification was insufficient, because it did not describe the machine in use, of which this was an improvement. Objection overruled, and exception. A second objection was taken that the patent was for an improvement in the threshing machine," and the deed was for "an improvement called a threshing machine," and so the plaintiff had conVOL. XXII.

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Harmon v. Bird.

veyed the whole machine, when he was only entitled to the improvement: overruled and exception. The judge charged the jury that they should take into consideration the state of the improvements which had been made in threshing machines at the time of the sale, and if the improvement patented was valuable at that time, and if mechanics, from an examination of the specification, could construct the improvement and apply it to threshing machines in use, the plaintiff was entitled to recover. The defendants excepted. Verdict for plaintiff. A motion was made for a new trial.

M. Taggart, for defendants.

H. U. Soper, for plaintiff.

By the Court, BRONSON, J.-It is said that a patent for an improvement must describe the machine already in use, and the cases of Sullivan v. Redfield; 1 Paine, C. C. R. 441, and Cross v. Huntly, 13 Wendell, 385, are cited in support of the position; but that was not the point decided in either of those cases. A description of the original machine can only be necessary when there is no other way in which it can be ascertained with reasonable certainty in what the improvement consists, and how it is to be applied. Threshing machines had long been in use, and were well understood at the time this patent was granted, and the patentee has given such a description of his invention as will enable mechanics acquainted with threshing machines to construct and apply his improvement without difficulty. I think nothing more was necessary. In Harmar v. Playne, 11 East. 107, Lord Ellenborough intimates an opinion that it is not necessary in the specification of a patent for an improvement to state precisely all the former known parts of the machine, and then to apply to those the improvement : but on many occasions it may be sufficient to refer generally to them. He puts the instance of a common watch, and adds, "it may be sufficient for the patentee to say-take a common watch and add or alter such and such parts, describing them." In Liardet v. Johnson, Bull. N. P. 76,

Harmon v. Bird.

Lord Mansfield said, the meaning of the specification is, that others may be taught to do the thing for which the patent is granted; and in Harmer v. Playne, Lord Ellenborough said, this must be understood, to enable persons of reasonably competent skill in such matters to make it, for no sort of specification would probably enable a ploughman, utterly ignorant of the whole art, to make a watch. In Crossley v. Beverley, 2 Carr & Payne, 513, the specification of an improved gas apparatus, gave no direction respecting a condenser, which is a necessary part of every gas apparatus, and it was held that this did not invalidate the patent. Lord Tenterden said, a workman who is capable of making a gas apparatus would know that he must put that in. See also Phillips' Law of Patents, 238, and Holroyd on Patents, 100, 105. When the patent is for an improvement in a machine already in use, and the specification contains such a description of the nature of the invention and the manner in which it is to be performed as will enable persons of competent skill, by following the directions, to practice the invention without the labor or expense of trial or experiment, I can see no good reason for requir ing the patentee to go further and describe the original machine.

The exception to the last part of the charge to the jury falls with the objection which has already been considered.

Although the invention was misnamed in the conveyance to the defendants, the deed furnished sufficient means for correcting the mistake, and identifying the thing about which the parties intended to contract. The deed not only states that the defendants had viewed the improvement, but it recites the letters patent, giving their date and the name of the patentee. The conveyance was, I think, sufficient to pass the title to the invention patented. But if it were otherwise, the deed was not a nullity-it might be reformed in a court of equity.

If this was a useful and valuable improvement at the time of the sale, the consideration of the note would not be impeached by showing that subsequent improvements in the threshing machine had rendered this invention useless.