The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1852-09-11

They have nusualiy treated it e subject whioa
was 10 be submitted 70 the Court. The contrary,
tar - know. never was suggested until the ar
gumcnt was opened the other day This question
having been raised, and being in ssue in the suit at
Law, which has been going ct the saue time, aud
evidence having been taken in both suits il they
were one and tho same; wher VIC Game here last fall
to try the suit at Law, there were some proofs not
taken in the equity suit that wero deemed by both
parties highly necessary, aud the counsel then en-
tered into stipulation by which it agreed that
al dispositions already taken to DO taken these
proceedings, should be read veil in tho suit in
equity as In the action at law. Such being tho
agreement, and these dispositions having been al
ready taken concerning the sulphur patent. without
objections and on che contrary in order to prevent
delay and all small technical questions upon matters
Of mere practice, this Court having directed that all
tho proofs taken should be read we'll the action
at law as in that in equity; it is TOO late for the
volved cannot be raised in this suit There has been
no surprise; they not eLtrapped; they pre-
pared upon tho evidence precisely as if there was
to be allowed, in Wow Of all these proSeesnss to
| exclude from the case, by O mere technicality,
| question Of 30 much Importance Ii necessary, VIC
can now amend the answer by inserting an avement
of the want of novelty 1t is ameGdaole on the
spot, if the Court sees that it cannot operate IS
| surprise.
The next proposition that submit to the Court
| is, that assuming, for arguments sake, Hayward
had right to the patent rs the discoyerer Of tho
| composition of sulphur and rubber, the same was
abandoned and dedicated to the public, by him and
others, with his consent and procurement, using
and selling it before his application for patent.
That requires me now to cal! attention to tho evil
dence The first witness for the purpose of showing
the manufacture of this article by Hayward. aud
bis putting il upon sale as early as 1896 and up to
lSsS, is MIR. Humphrey. BY him We prove the uso
Of this discovery BY Mr. Hayward, from 1884, when
he made it until 1883, when he assigned il to Mr..
Goodyear. Vol 4, defendants prin ting, page PAT,
! humphrey, testimony, question 26) (This evil
/ depce was then read
This Mr. Humphrey is 80 far connected with the gen.
tlemen on tho other side, that in 1885 S6 he ON
ployed at Woburn. in the Eagle Rubber Factory,
which was conducted by Nathaniel Hayward. When
that company sold out, they sold to Humphrey, and
he and Hayward became partners in the business; bu
| Hayward getting into difficulties, his business was
| transferred to Newell Newell and Humphrey then
| became partners, and the company continued under
| tho firm Of Novel; & Humphrey During the whole
ofthe examination Of Witnesses it VIII be found that
Humphrey was in the employmen of the plaintiffs
hunting up testimony, sitting by the COUNSEL taking
part in the cause and doing what he could as
sistsnt, or as party in interest, TO advance the
cause Of the plaintiffs have selected him in order
to maintain this branch Of my case, because he was
witness utterly opposed to us in feehng-one Of the
most hostile that exists and who has been active
promoter Of this litigation, He proves that from
1856 until the spring Of 1888, the manufacture Of
| goods by mixture Of sulphur and rubber was car
ried ON he proves tho sending them to Boston for
sale; the selling Of Thorn in Woburn; the delivery
OF them to Beers, to pedde about tho country; and
the IaDIlC was put on sale lot the purpose OF
profit, during all that period of time. Our opponents
! have no right to complain, if make out the case
| against thcnS by witness SO friendly to them. He
proves, amongst other things, that goods composed
| OF sulphur and rubber, wero not only exposed for
sale and sold, but that lot Of the n consisting of
life presorvers, and other articles, was sent to the
Fair Of the merican Institute, in the city of New
York, as early as in the year 1885, and that being
| there exhibited, medal was awarded by the Insti
| tute for this manufacture.
| Upon the cross-examination. an effort was made
to create the impression that these articles were
| hibited at the American Institute az being mere
experiment, and not specimens of perfected dis
coyery; but the witness unable to assist this in
genioas suggestion This part of tho case therefore,
| is very abundantly established.
ako refer to the evidence Of Stephen Hale, I'D
vol defendants printing, page l63, question ~, to
show that the existence of sulphur was in 1885, de-
tected by the smell, so much SO to be serious
Mr.. Alexander Strong Ga vol. defendant print.
irg, lage $50 and l5 testifes to the same effect.
An effort was made on tho part of the dc,
this "Eage Company" for the purpose Of
| laying before the Court tho whole Of their
| transactions in reference to the manufacture OF
sulphur and rubber. BY referring to the evidence
of John Bigelow, .(voi 2, .delendaas's print
| ing, page So the Tr, a;urcr OF the Eagle Com
pany, it appears that these books were taken posses
sion Of by Mr.. Judson, one of the plaintiff
probation of.eSpcdiency, has held to them ever
| since. Mr. Bgelow was called on to produce them:
| but he proved that they had been taken by Mr.
Judson, ar that he, like very discreet and faith
| ful counsel, had keep them ever since.
Mr.. JUIsoN-"They are in court"
Yes. "in couIt," but not in evidence They arc
Ike very many matters that asserted, but not
found in the proofs. However, Mr. Bgelov says that
goods we've manufactured of sulphur and rubber by
that coppany that they contained that particular
| and unmstakeable ingredient and that is sufficient
| for our purpose. books or no books.
| The next witness is Mr.. Luke Bigeow, who was
the agent of tho Eagle Company from July, 1886,
to the summer of 1887; and ho proves that Mr.. Hay
ward was the principal at that factory, and that
! establishment in Boston kept by Mr.. Haynes
What be said against this evidence! Can there
be any escape from such an uninterrupted sale for
such length Of time Of these sulphur goods! ;,
/, also, refer to tho testimony of Timothy Newell,
the co-paItner OF Humphrey, and who hold tho in
tcrest Of Hayward, in his name, a cover the latter
| being involved at that time in difficulties (Newelfs
affidavit, at the bognning'of second VOL, plaintiffs
| printiDg) He was examined on behalf of the
plaintiffs. (See also exhibit marked f, page ID
M. Ncwclln that deposition gives a very clear and
| Company during. all this time, and who should
know better than no He hired the hands: was the
partner of Hayward; and he also proves tho manu-
iacturo and sale Of these goods by the company
| 1t would be unfair to quit Mr.. Newell, without
| admitting that he has contradicted himsclf in a
| point where he had an interest in 80 doing. I
free to declare that where his own interest is con-
| cerned. he is not much to be relied upon.
Twill briefly refer now to sono others OF the wit
nesses, for there are too many to notice them all
and propose in reference to the rest of this branch
| Of the case, to do but little than give their
names and refer the Court for fuller consideration
| Of them to the printed brief
! now introduce witness named Nathan Childs
| (vol lG9, dofeldant's printing!. who tcstifes
! that in 1857 no bought this kind OF goods Of the
Eagle Rubber Company, and, among oincr articles,
| carriage cloth, and he smet sulphur in it.
VIM. Beers, whose evidence viii hereafter be
| found extremely important in the curing depart
ment Gays that in 1886 and 1887 he worked for the
| Eagle Company, pedded the goods made by that
| company about the country and was afterwards
employed also by Goody ear for the purpose Of
perne ntirg in rubber and sulphur. He proves that
che goods manufactured by that company contained
| sulphur, that they gold them abouG the country.
that they smelt Of sulphur, and that be had diff
Guilty in disrosire ofthe for that reason, especially