The New York Herald Newspaper, September 11, 1852, Page 3

~ fendant’s printing, pa Ag Ze ‘ z 3 i E & that at common swan ras Pese il i i; icf iH Tadmit the name of the the party benefivi: : prime be then, is, th ie y, aq » by Goodyear, praying for da yr manufacturing boots and shoes; trath, does not belong to Goodyear, has! aud sold it to other par- q other cocsiderations—that the Goodyear; tnorebe, I seapestinly iv ear; therefore, I resi in- it must be ditmissed. The true pat be the Court, and rot one who lends hi to the actors, who sre kept bebind the seones ag @ matter of calculation, and for effect. It is eaid that thisis @ tcchnical objection. Ifit wero so, we are entitled +o urge it in a case where our 0} are by every means endeavouring to avoid a trial by jury, aod to which tribunal ‘will bo compelled to appeal, if this bill be dismisse for any cause, or it an injunction be denied. I Dow enter upon a very painful and laborions task— the discussion of the evidence, applicable to the Various alleged inventious of Goodyear. The first ition connected with this enormous mass of matter is, that the patent issued to Charles year, for an alleged iavention of Nathaniel Hayward, for combining sulphur with India rabbor, dated the 24th Febraary. 1339, is nulland void, be- cause Nathaniel Hayward was not tho first iaventor of that composition or compound This is commonly known as ‘* The Sulphur Pa- tent,” and was issued upoo an alleged discovery of ward, and was taken outia 1880. Tho first wit- ess that I refer to, on this branch of the case, is . Nathaniel Stoddard. He was engaged in tho manufacture of rubber in 1633 aod 1834; he experi- mented largely in usiag rubber, dissolved in ‘spirits of turpentine, with sulphate of iron and 3s ¢ i ge ie ad ! i E i 2 e r E * : it i voll sulieey in composition, and made rub- ber cloth in 1834 of rubber dissolved in spirits of t tine and sulphur. This was at Rox- , Mass. He left Roxbury after a while, wert to Lynn, where he cinpitssiared rubber loth for the Lynn Printing Company, of rubbor and sulphur, in the proportions of 2 Ibs. of sulphuc to 2 or 20 tbs. of Tubber, dissolved in spirits of ‘turpentine. Some of the cloth manufactured by Mr. Stod was used to cover hair cushions, and made into life proservers, leggings, and various other articles, and wero sent to a store in Boston belonging to this company, where the manufactured articles were publicly exposed for sale, and sold. * This cloth was of a drab color, and was known and sold in 1835. I rofer the Court, for the purpose of showing tho perce accuracy of that proposition in regard to Mr. Stoddard, to vol. 1, defendant's granting, pose 159 to 164. I also refer to tho evi- lence of Mr. Win. 8. Lovell, who is one of (ood- year’s witnesses, and much intorested for the plain- tiffs in feeling; Mr. Lovell saye—(vol. 1 plaintiff’s printing, page 338) [Here the “Counsol. read his stimony.] I aleo refer to Mrs. Stoddard, the wife -of Mr. Stoddard, (vol. 1 defendant’s printing, page ) from which the Counsel read. Judge Grizr—The lady in Now Hampshire . thought the contrary. . Corrine—Yes, sir; doctors disagree, and Idon’t know why ladies should not. The next pare is ee LS ae Wot ea ing, page 165, ations 4, or 44. ie coun- del read her Neetimony. This witness alone mado up about thirty yards herself ot this cloth. The next witness ia Thos. L. Chase, (vol. 1 de- i § 9.) He was the book-keeper and salesman of the Lynn Printing Company; ho eorroborates Mr. Stoddard, and says—(che counsel here read his statement The next witness is Mr. H. Tileston, who, how- ever, proves simply that S:oddard was working at that time for the Lynn Priuting Company, and that is they had a store for the sale of their g in 1835, (vol. 1, page 177.) He also read the Codes # of Mr. Fox, (vol. 1 defendant’s printing, ge 21.) He alao read the testimovy of Mr_ Fox, (vol. 1 do- fondant’s printing. pago 21.) He also read the testimony of Mr. Welliogton, (vol. 1 defondant’s printing, page 186, top of page.) This witness was a paces irom 1834 to 1856, of this article of sul- 0 eods. Now, besides those witnosses who thus prove the ombination of rubber with sulphur as early a3 1844 and 1835, making it into manufactured ar- ticles, putting them on sale, exposing them to the pp eye, making them an article of sale and RO it. Taleo refer the Court to the evidence of Mr. tkinner, who epoaks in reference to Mr. Day’s carly smployment. y snecrs and sarcasins have been visited upon him for having testiGed that Mr. Day had so eariy sulphur in combination with rubber, and th» idea was thrown cut that the thing was incredible, he- eause Mr. Day was then but fourteen yoars old. Ic was for that reacon that I have taken some troubloto show that it is spoken of by various other witnesses asanarticle of trade in 1834and 1835, oponly and publicly exposed for sale and found profitable. Mr. er is remarkably eorroborated in this respec: by oneof the most respectablo gontlemon residing in New York, to whose testimony I shall soon refer. In regard to Skinner, his testimony appears in 4th volume defendants printing, page 375, questions 7, %, 10, 14, and 36. Mr. Skinncr is a respectable man; the proof of that is extremely distinct ; his place of residence is given; ke is known by numbers of persons within reach. No attempt is made to impeach this gen- tleman. But what is the hy upon which they seek to disparage the evidence of Mr. Skinnor? Why it is undera remark that Mr. Day had dissolved his rubber by the use of aloohol, and that it is said, stamps the whole of hia evidence as faleo, because alcohol would have a directly reverse effect. Now, avhat he says upon that subject is simply this, (reads ) But let me corroborste this witnoss in that ro- spect by a witnese of the plaintiff, and a brother-in- law of a party interested in these agreements, and ‘who tostifics toa like uze of alcohol by the Presi- dont of Newark Rubber Company, at this same po- riod of time. This witness peores that Mr. Hateh- ingon was thore in pertnorehip with Mr Day, and they about that time using alcohol for abe rubber. This witners is a suleamanin the Nowar Company. In the outset of his examination he was asked what solvent was used in 1532? Answor:— “Turpentine and alcohol.” * By whom then was alcohol alzo used as a solvent ? By Hutchinson, the President of this Company and ene of the real plaintifis. And yot they undertake to slay a witness, because ho said Mr. Day had used alcohol ag a sclyent, at the same time Hutchinson was Belg it in his establishment. Mr, Brapy—If the Court ploase, it would be very irksome for us to interrupt the counsel in any of hiv statements on points of fact, and, therefore, whore we do not thus interrupt him, we nope the Voart will not understand us ag agsonting to any proposi- tion orstatement he may make, bat I desire to make one correction here He has not my argue ment about this witness. I stated in reforonec to this matter, that the witness exprotely swore that Mr. Day acopted the use of aleohol and gaye up tur pentine as 9 solyent. Mr. Ccrminc—I do not wish to bo exempt from interruption. We are bere to diseusa this caso, and bring to the Court all « ght upon it we can Interruption aad correction ot binder, bat will aid that. Inow refer the Conrt to the evidenco of P. 3. Van Stouten, * 285, questic T have alro a very jo the uto of sulphi a groat onaber ot other par ties; bat, ac: my uaderstanding, they refor to the u sur in combination with lead, ani therefor: is mo perly applicable to another brav his di on; because, ae cording to wy underetand , @ patent for sul- pbur and rubber alone is ¢ nt from and far mors extensive than ono for sulphur, rubber, and lead, and that a patent taken out for tho triple compound would not be intringed by using sulphar and rubbes alone. I therefore will not, onder this head of the diseussicn, trouble your honors with any farthe references to the triple compound. Conan myself then, to the use of sulphurand rubber alone, submi wohave ostobliched, by eight ornine em tess: hones* and rezpectable men, who cannot be, or at all events who have not, beon assailed, the discovery of and the adoptien and practical ure of su'phur and rubber, and the sale of the fabric, inone of the company’s gtores in Boston, as early as 1834 or 1835. I hi glearly and distinet’y proved the uso of tho ar * jn question, by persons other than Mr. Goodyear or Mr. Haywerd, who were not connected with them jn any shape, If that be 90, can a patent taken ont in IS39 by Mr. Goodyear, as the assiguoe of Hay- ward's invention, for this same idontieal compound af rubber and sulphur, an article thus publicly known and used by so many porsons as early as 1834 and 1835, be mstoined. Clearly, it cannot be. : But. it is said we are precluded from ra ing that question in this suit, because what- ever we may have done in tho action at law, brought for on iafringement of this same patent, and whatever may be tho isenes of that suit, we havo in this bill omitted to question the validity of the patent of 1559. Upon looking over tho answer, J perceive that the question of novelty is not raised, and probably the omission arose from the cireum- atanco that’ this question ce pat at issuc in the action at law, and this being o bill of an extraordinary frame, which seemed to pro- gecd upon the notion of compelling tho specific performance of an ; enact Fates oR’ ey. apatort, the parties, in proparin, a had nek attention ‘irerra to other matters oy hat was perhaps strictly requisite. But ave ol that Goodyoar ought not to bo pormitted to * ral mthie tec! objection, because, first, both - partios, in taking proofs, have treatod the question of novelty in Ls) ‘of sulphur es one of the mat- tom in issue. They have examingd witnesses ow Poth aides to this queavion, aad have cross E E, 5 aL ee deeds i 4 58 4 -. & agreement, 2nd these depositions having beer al- ready takon concerning the sulphur patent, without atienslonk, and on che contrary, in order to prevent. delay and all smull technical questions upon matters of more practice, this Court baying dirested that.all tho proofs taken should be read as well in the action at law asin that in equity; it is too late for the opposed, to contend that all the points in- volved cannot be raised in this suit. There hasbeen no eurprise; they are not entra; 3 they camo pre- pared upon the evidence ly aa if thoro was such an averment inthe answer. They ought not to be allowed, in view of all these proceedings, to exclude from the case, by a mere technicality, & question of so much im; je. Ifneeossary, wo can now amend the answer by inserting anavorment of the want of novelty It is ameadable on the pads tho Court sees that it cannot operate as a surprize. e noxt proposition that I submit to the Court is, that assuming, for argumert’s sake, Hayward hada right to tho patent as the discoverer of tho composition of siphon and rubber, the same was abandoned and dedicated to the public, by him and others, with his consent and proouremént, using and selling it before his application for a patent. That requires me uow to cal! attention to the ovi- dence. The first witness for the purpose of showing the manufacture of this article by Hayward, aud bis putting it upon gale as early a3 1336 and up to 1888, ig Mr. col a By him we prove the uso of this discever: ir. Hayward, from 1834, when a arte it unt a ae _ he assigned it hey icodycar. Vol 4, defendantw’ printing, pa A “! ‘ths ovi- Humphrey’s testimony, question 26.) dence was then read ) ‘This Mr. Humphrey is so far connooted with the gen- tlemen on tho othor side, that in 1835-36 he was om ployed at Woburn, in the Eagle Rubber Factory, which was conducted by Nathanicl Hayward. Whoa that company rold out, they sold to Humphrey, and he and Hayward bocame partners in the business; bu Hayward getting into difficulties, his businoss was transferred to Newo!l. Newell and Humphrey thon became partners, aud the company contiuued under tho firm of Nowell & Humphrey. “During the whole ofthe examination of witnesses, it will be found that Humphrey was in the employment of the plaintiffs, hunting up testimony, sitting by the counsel, takiag part in the cause, and doing what he could as an as- sistant, or as a purty in interest, to advance tho cause of the plaintiffs. I have selected him in order to maiutain this branch of my case, because he was a witness utterly opposed to us in feeling—one of the most hostile that exists, and who hes been an active yeas of this litigation. He proves that from $36 until the spring of 1838, the manufacture of goods by a mixture of sulphur and rubber, was car- nied on; he proves tho sending them to Boston for sale; the selling of thom in Woburn; the delivo of them to Beera, to peddle about tho country; an that tho fabric was put on sale for the purpose of prof, during all that period of time. Our opponents ave no right to complain, if I make out the case against thenft by a 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 a lot of then, consisting of life presorvers, and other articles, was seat to the Fair of the American Institute, in the city of New York, as early asin the year 1836, and that being there exhibited, a medal was awarded by the Insti- tute for this manufacture. Upon the cross-examination, an effort was made to create the impression that theso articles were ox- hibited at the American Institute as being a mere experiment, and not as specimens of a perfected dis- covery; but the witness was unable to assist this in- genious suggestion. This part of tho caso, thereforo, is sete abundantly established. J ato rofor to tho evidence of Stephon Hale, (2d vol. defendant’s printing, page 163, question 4), to show that the existence of sulphur was, in 1835, de- tected by the smell, so much so as to be a serious objection to the goo Mr. Alexander Strong (2d vol. defendant’s print- ing, page 159 and 154) testifies to the same effect. An effort was made on tho part of the de- fendants to obtain possession of the books of this “Eagle Company,” for the purpese of laying betore the Cowt the whole of their tranvactions in reference to the manufacture of sulphur and rubber. By referring to the evidence of Jobn Bigelow, (vol 2, iefeadant’s print- ing, poge 58,) the Treasurer of the Engle Com- pany, it Ly ag that these books were taken posses- sion of by Mr. Judson, one of the piwintiff’s coun- scl, aud he, with his usual good sense and just ap- preciation sie eon has held on to them ever since. Mr. Bigelow was called on to produce them; but he proved thet they bad been taken by Mr Judson, and that be, like a vory diserect and fuith- ful counsel, had kcep them ever since. Mr. Junson—‘* They are in court.” Yes, ‘tin court,” but notin evidence. They are Lke very many matters that are asserted, but aro not found in the proofs. However, Mr. Bigelow says that goods were manufactured of sulphur andrubber by that company; that they contained that particular and unzistakeable ingredient, and that is sufficient for our pur, , books or vo books. The next witness is Mr. Luke Bigelow, who was the agent of tho Laglo Company from Jul , 1336, to the summer of 1857; and ho proves that Mr. Hay- ward was the principal at that factory, and that most of the goods were seat for sale to another | ectablishment in Boston kept by Mr. Haynes What can be said against thisevidence? Can there be any escape from such an uninterrupted sale for such a length of time of these sulphur goods ? I, algo, refor to the testimony of Timothy Newell, the co-partnor of Humpbrey, and who hold tho in- terest of Hayward, in his name, as a cover, the latter heing involved at that time in difliculties. (Newell’s affidavit, at the boginning‘of second vol., plaintiif’s pate ) He was examined on behalf of th laintilis. (Sce also an exhibit marked FE, page 45.) Newellin that deposition gives a very clear and inet account of the tran actions of the Eagle i is time, and who sheuld Ho hired the hands; was the partner of Hayward; and he also proves tho manu- facture and sale of these goods by the company during tho years 1834and 1826. Tt would be unfair to quit M admitting that he has contrac ol: point where he bad an interest in so doing. IT am free to declare that where his own interest is con- cerned, not much to be relied upon. Iwill bricily refer now to some others of tho wit- nesses, for there are too many to notice them all— and I propose in reference to tha rest of this branch of the case, todo but little more than give their names and refer the Court for a fuller consideration of them to the printed brief. T now introduce a witness named Nathan Childs (vol. i p 109, defendant's printing), who testifies that in #37 ho bought this kindof goods of the Eagle Rubber Company, and, among over articles, | a carriage cloth, and he smelt sulphur in it. Wm. Beers, whoo cviderce will hereafter be | found extre: i ig depart | ment, sys that in 1% for the | Eagle Company, pede the company abort the country, 8 employed also by Goodyear for the purpose of cx- | permenting in rand suipbar, ¢ proves that | the goods ma ured by that comp coatnined su)phur, that they gold them abons the cont t they smelt of sulphur, and that be k i culty in dispo: of thern fe a, Oop to ladies of refin: d sense of emell. Tho next witness is Mr Samuel Sweetsr, a stockholder in the Hagle Company. He contributed twenty-five dollars to start Hayward in that com- pany, at Woburn. I think he was at one time pre- sident of the company. Ile states that this com- pany manufactured life preservers aud various other articles, that they contained brimstone, that they smelt of it, and that tho smell was very perceptible. This is a witness strongly inclined to the other side, and called by them. Another witness, Mrs. Eddy, alse provos the uso and existence of sulphur. Sho eays she saw Hay- word havo a quantity of sulphur. “T asked what he did with the enlpbur, and he said ho eat it.” Now another piece of evidence, in the shapo of an afiday (Hayward’s Deposition Exhibit, vol. ii. plaintiff ’s printing), ts very striking. EXMIDIT A. T, the underrigned, Nathaniel Hayward, of Wo- Durnin county of Middlerex, State of Marsachu- cette. nanufactnrcr, say, ab the request of Mr, Horace i y. in co to a uit in which [ ander stand him to be a party, thet im October. 1884, T mace the ir ents that T romember ever having made in the are of Lodi rubber; Twas then at Boston; I mavo ® Tndia rubber, and sul- phur, and Inmpblack, s this composition upon slik ribbons of different colors; L have beem employed In the manifacture of India rubber goods. and in making experiments in the same, from that time to the present; immediately afterwards, during the eame month, I made colutions of India rubber in spiri(s of turpentine, four quarts to the pound, and mixed with this solution at dit. ferent timer, white lead, litharge, and red lead. as dryars, ae ely importa From that time to April, 185. [ continued in Roston, and in my carriage shop, where [ did paintiog and varnishing for my own uso. I made 8 experiments in the manufacture of India rubber, and used many lands of dryers besides above mentioned, and sls Hii ey the’ same principle; im shoes rubber NATHANIEL HAY WARD. Boston. Nov. 8, 1644, Massacuverrrs, Surro1x 08. Nov. 9. 1844.—Tho above effidavit was sworn to befors me, Winianp Pasicirs, Justice of the Peace Thavo p!accd before your Honors a very formid- ablo mass of evidence, which, in my judgment, is conclusive upon tke question, that this fabric of rubber and snipoars oured and compounded in the manner set forth in Hayward’s patent of 1339, was known as far back ay 1584, and ic 1835, 1886, 1837, and 1838, was made in this eétablishment av an article of constant sale, continually pat before the publio, entered iuto ths market, became & source of profit, and sold with a view to profit, in such a wa: a8 1 imagine constitutes ai! the public use that paoe 4 an artiole is susceptible of. Our proposition upon thia state of facts is, that the salo of the thin, patexted, viz tho rubber mixed with aulphur, an practically applied to the only use of which it was susceptible, viz. in the shape of cloth or fabric prior to 1839, deprived Hayward and the plaintiff, us his assignee, of the right to a patent On the other side, they insist that puttin, t into public use is not such an act, or fat a series of acta, as deprives the discoverer of his title to w Bow subsequently taken out ; and I understand the argument to be this, that frubber and sulphur mixed and spread upon cloth #nd dried, will procuce a new and useful manufnc- ture, the putting upon sale of the fabric so mado without disolosing the process by which it is made, will not deprive the inventor of his right to a pa- tent These goods were made not for the purpose «f experiment, but as a regular marketable commo- dity, and were sold for purposes of gain; the argu- ment on the other sido is, that if a method is disco- vered by which a now fabric can be produced, it may bo mado ond sold foras many years as you choose, so long as the public do not discover tho mode in which the commodity is made. You may | stock the market, and still bein time for a pa- | tent. It is anid that the public are not possessed of the | invention, but only of the products of it, and al- though the inventor is enjoying the fruits of his dis- covery, and withholds his socret from the public un- til he issatisfied with his gains, ho has still the right to goto the Patent Oilice and obtain an ex- clusive grant for fourteon years moro. The rosult is, that ifan article be manufactured in a way that avoids detection, it maybe used for profit for any b of timo without impairing the right at any terwards to a patent This is a very remarkable proposition, and one that it is eee to maintain upon principle or authority. It isclear that a sale, or # use of the composition of sulphur ard rubber spread upon cloth and dried, is a sale or uso of tho thing inven- ted within the meaning of the Patent laws. The use of the fabric is ause of the invontion. It is against the language, principles, and well settled rules of tho Patent lawe, to permit an inventor to withhold his discovery from the public, use it for his private emolument. maintaining his secrot till prudence calls upon him to divulge it, and then to claim the reward of fourteen years additional ex- elusive use, with a contingent right to o renewal. All principle and authority are opposed to it. Web- ster's Patent Cazes, 494— Morgan against Seaward, Meeson & Welsby, poge 54. Laud on Patents, page (4. Holt’s Nisi Prius Cases 683—Wood against Seymour. My attention has been called to a note in Curtis on Patents, section 305, introduced by the other sido, which it upposed countenances the doc- | trine, that the discoverer can actually sell and real- ize a profit without prejudice to his rights toa patent, £0 long as tho public do not discover the cccret of the invention, and that even after a ecries of years of use and enjoyment of it, he can still obtain a patent. Thave looked into the eases contained in this note, aud submit that it is not an authority on whioh the plaintiff can rely. It scemsto meon the contra- 1y, to furnish a very pointed dovision intayoref the defendant. If a discoverer systematically aud in- tentionally keeps his d verles secret, with a view to his own profit, as Jong as he dare, putting its pro- ducts on enle and reaping tho rewards, he thereby loves his right to a paient. All the learning on the other side, has not brought a case to sustain their proposition—how i it possible that an it ion can be kept s by the inyentor, and used as long as he chooses, and he entitled toapatert? It would be an encow ment to partics to keep their discoveries within th own breasts, in order t a hemselves. If tl ing to the identical combination patented, be a sale of the invention, so az to offect an sban- Gonment, 1 know of no state of things have bad that result. | I next proceed to digeuss the question who was | the discoverer of tho triple com id? and then will turn ay attention to that which is the most im- | portant—wh cess! We say that this composition was known | and used by others long before the time of the | eres *s alloged invention, which was in 1843 or | S44, There are two principal classes of witnesses H ing upon this branch of the case, together with the other additional and auxiliar circumstances. The first claes that [ shalt refer to, is that which has been so especially attended to by the other side, and made the subject of so many severe and caustic remarks. Their testimony relates to the discovery”! by Collins, in Baltimoro, in 1833; and the next class refers to the discovery of the triple compound by a very respectable man, conceded so to be, named Pratt, residing in one of the Eastern States; but these witnestes—-I mean Collins and those who sup= port him ard Pratt, and those who corroborate and confirm him, are extremely numerous. In regard to Collins, before examing ‘his testimony, I beg to say a word or two of his history, as I dorive itfrom his evidence. It seems that in September, 188, he was in Baltimore, and there made a discovery of the compound of lead, rubbor, acd sulphuc, which ho subjected to the action of heut. This occurred in September, 18°3. In October afterwards, he went to Boston, whore he was taken sick; ho soon reccvered, and he, who is now made the subject of 80 much abuse, and is branded as an impystor, carly in 1834, was employed by ove ef the priucipal manu- facturing establishments at Lowel » Massachusetts, for the purpose of inventing and putting up anew system of machinory in the manufacture of India tubber goods. How happened it, if he was a man of no repute, and of no inventive genius or { quiren i this str ger from that he had = made ntion, 1 in the Fastern State mn a part of t jountry cers tainly equal to ler in point of skill and inge- nuity. bave so re obt d employment i well Monufacturing ¢ machinery he ma Jndiayubber ny. to put up made for the the machir y in reference to the machinery ar operating it This stranger, who ’ with so much contempt, was eclectod from ali New England, and placed at the head of the latter os tablicbment, at an anual sa of one thonsand dollars, whilst Hayward was bired at eight hundred dollars a-year. - This alledged imposter, who it is necessary now to aseail as a fabricator of pretended Giscoveries, after they had bought his patent, was employed by ore of the principal factories of New England, eta salary of one thousand dollars a-ycar for a period of five years. THe contiaued in thii po- sition, exacting bonds of secrecy from the company ond its oflicers, until their factory burned down in 1886. 1 ad ieularly to the bonds of secrocy required by because everything that falis from the distinguished counsel on the other side (Mr. upon this subject, be declared that he meant to contradict Mr. Collins in the statement, that he bad would show that Mr. Collins had, in this respec wiltully perverted the truth, ‘ ay at my learned friend will not be ablo to accomplish that task ; but Twill say that, if he does, he will have rend tho evidence in a very opposite senge from my urderstanding of it. Before I leave this branch of the caso, I will refer to witnesses called by the other side, who fully corroborated what Mr. Collins has, in this respect, asserted. I do not mean to aay that in this mass of ovidenco thero is perfect har- mony, Nor that the recollections of all those wit- nesses, extending over a long period of time, are pre- cisely the some ; but I will select enough of them to show that that modo of impeaching Mr. Collins will oduced a great varioty of colors in the manufacture. | most certainly fail. Aj ii Tn-apal removed p=. ‘ton, about twenty-five miles | burnt down, ui the stent GES ioe perches ae satuiselinten ve cong in Sg 4 tbe fire were transported to Salem, and this same Mr. sad, sold my | man aston ‘and | CO ne was dmrnediately o ed by this Salem com- SC P e if ob & bead one thovaand | . Tite sam worker te ie agai ce ay toe Be'consucita that factory until the yar . Account entirely tll the and afveewards oa ' wiin the oompacy failed, and in that respect fal- | inetanse whith could | ; | tiff was an object 10 was ihe discoverer of the heating pro- | © Webster) is entitledto teu! most respect and consid- | eration, While his associate was addressing tho Covrt exacted bonds to maintain bis secrets, and that he | I will not say that | have established it by other than his testimony, as irrefragable a# any over introduced into aoourt of justice. If these witnesses have coi wilfai ‘avd corrupt » it will bo the most enormous it with’ my ex, oe; it will present a most singular speo of extraordinary and un- ralleled jon of numerous persons Putlity, and well known standing, apparent or imputed motive. Mr. Collins is corro- borated by o long eories of respootable individuals the character of not one of whom, for truth an yeracity, has beon asgailed or attacked. The ovi- dente of Mr. Collins will bo moro paticulanty looked at, when I come to the question of heat. ask your Honors, for the present, to listen to what he testifies concerning this compound. (Vol 2 dofendant’s printing, page 183, question7.) Tho counsel here examined the evidence in detail. Jxdge Grker—Aro there any samples of those goods! Myimpression is there are not. There was one apron put in evidence, according to my recolloc- tion, and analyzed; I am not certain whether that apron contained lead. The learned Counsel then went on to say— He has given tho name of tho street where he boarded in Baltimore, and the names of respoctablo men who were acquainted with him and his oxperi- ments there and elsewhere. It is a very singular circumstance, if this witness had fabricated, as is alloged, this tory, that he should have ioferred to names 80 well known in Boston, who were capablo of contradicting him, and of exposing his delin- quences. It is remarkable that a man of so much ingenuity should ave furnished a list of so many unimpeachod witnosecs, who, necessarily, would have exposed him, if what he testified had boen untrue. Not one of these individuals have been called to confront him ; and, on the other Hand, ho is corroborated by many of them. He is corrobo- rated and fully confirmed by Mr. John Collins, his brother, who declares that, during 1835 and 1536, and up to the time when the Boston steam factory was burnt, he had tho mixing of the rabber com- pound; that two different descriptions of composition were made, one in which thero was no sulphur and the other was composed of rubber, sulphur and lead, mixed by him, undertho direction of Richard Collins. The ether side deny that John Collins ever did mix tho rubbber, and assert that it wae Richard Collins alone who mixed the compound. 1 Probes to put an end to that question by proving ‘om the lips of witnesses called by Goodyear, who are in tho highest degree hostile to us, the truth of what these two Collins have sworn to. ‘The counsel then read the ovidonce of Humphrey ; and observed, that this witness had entered into the cage with tho zeal of counsel. He proves that Collins was really the artist in all these New England establishments. It is proved not by our friends, but by our enemies. I resort to those fountains, which, for us, weve sup: posed to contain only waters of bitterness. It is from thoze gources that I offer ta this Court evidence corroborative of Collins. I will refer to one moro witness, to show that both John and Richard Col- lis were tho mixers of these establishments. The counsel then referred to and read facts of the deposition of Mrs. Buss. f what need, I ask, were these private rooms, which were appropriated to the use of Mr. Collins, if there had been no secret to divulge? Who ocen- pied them? Collins. Who wero refused ad ait- tance? Everybody but those who came under bonds to Mr. Collins to preserve his secrets. Why thon are there witnesses stigmatized as impostors and jvggiers, when the testimony of persons examined y the plaintiff, and circumstances which cannot deceive, confirm them in all material respects ? Mr. Cutting thon proceeded to comment upon the evidence of Mr. Newhall and of Leander M. Earle. The learned counsel for the plaintiff have thought preper to shower upon Mr. Warle a great nyective, and whon J contrast their pi with the evidence of warm andi which the exbibits in this recently existed between the witnes: learned counsel now present (Mr Cooke.) not withhold an expression of surpr ond sudden ehange the oresponde ndzhip, show, has rantil very nd one of those T can- al Anxiety. imself and f aud issolve these to expose Mr. Harle so suddenly e side? y that pplied spears then, bis fiends bud ascertain rr g contuining the propo 3, and the process of compounding thom ; on of a paper so fata: to the plain- of paramount importance, one of jearned counsel, and the friend of Harle, con- d the plan of bringing him into the case as an int and coadjutor, to assict in hunting up wit- cg, ond especially such as might porsibly im- each the general charseter of Collins. By thus osedciating lim as an active agent, it was hoped that the fatal receipt might at least be kept out of view; and in order more elfectually to excite his zeal, he was at one time presented with $100, and with other sums ot different times. From the correspondence, it appears that Earle also, about tho same time, be- came the cherished friend of Mr. Haskins, and of of the parties who professed a fraternal regard Iwas at first emazed thata gentleman who bad stood so well with tho clients of this learned enticraan (Mr. Cook), sbould ject of somuch severe er w: ave become the sub- 3; but the mystery “3 unravelled when I reflected that upon his oxam- ‘on as a Witness in the cause, he bad disclosed the nce of the receipt from Collins, and had pro- the original, and m: it an exhibit in the From that moment, this interesting friend- ship, without lavguishing, instantly died The relation of Damon and Pythios was suddevly issolved, and Haskins and his associates not on! broke off their intimacy, but, through their counsel, discharged upon him tho vials of their wrath to the uttermost drop. Tho cause of their prosent animos- ity arises from hiv confession that he had purchased from Collins this receipt for manufacturing India rubber. This paper, signed by Mr. Collins and de- livered to Mr. Earle, was put by in an old »k, which he opened, aud br If this receipt be genuin there bo not foul perjury : the effect of this receipt must overwhelm nit upon this braneh of the eave, for itsdate ts contents leave no room for doubt or cavil. Now, what ar ici tim Earle? y of ken, be that he h bad obe t b y plan- ning 0 falsehood, when be was examined on the sab. ject before, would he havo testified that he bad ‘three receipts, and explained what th | then, if he bad manufac Fave taken the pains to falsify hi a contrivance as to bave fabric three wh rather ha Wenk ee Wou'd bo n he bad alroac n-and manufa: of a mist and tho particulars of ors of | is a witness too bold and of too muc r | me. I much prefer a more modest one, w | in some apprehension of uttering more than w tually truo, and who by some inaccuracy shows that he had not been drilled, Mr. Earle found the receipts, and discovered that there was a slight variation betweon the papers au his testimony, thero being two instend of three. It is such grounds that the effort is mado to im- Don these receipts, and to induce the Court to be- ieve thoy are forg And that both Colkns and Earle, in addition to ’t of forgery, have euperadded that of wilfn) Rieorsant per) art ccrsider tha when My. Goliae 1 supported bj brother, “and distinctly confirmed by Newhall, and by Mr Eazlo, and by the productioa of the re vol anosseiled boot and of » tee- In 18%, Mr. Pratt obtained bis first tises that in 1804 ha iknow Colling, and in that year | that did not leeds, Te contalned the ontivet Ko, abe, huge} Collins a» for acom- | lead, but lead ; he found that or pound of + sulphur and white , and he | not exactly answor, and in 1836, he invented the gives tho proportion of the white load used im this | ecmposition of the triple and in proper- compoation. Prot S suoer 1s heerd, sgniags the tions pot ing very ly from those re character of Mr. Shattuck. Beha oe and | ferred to Ir. Goodyear in his t. In 16s friends. If be was a man of bad repute, it coald be Be retaraed to Haat Castnid and while shown by somebody. Mrs. Wheelor, of Boston, | on the » he ed the 0; by. 3 oves that in 1881. Mr. Richard Collins lodged at mixing the compound. eof the mother’s house in Lowell, and she there saw Hoipated in the act, and all of them tea: i. Collins mix India rubber dissolved in spirits of tur- | manner that eeoms to leave no possible qu rt rT and mixed with sulphur and white lead, aod truthfulnoss. It ia w of per ane saw him epread it on « cloth with a paint- ers knifo. Mr. Warren White also proves that in 1835, whilo Richard Collins wae at Newton Falls,he, White, pur- chased from Richard Collina a receipt for a oum- pound of rubber, white lead, and sulphur, mag- nals and lampb!aock, to make rubber cloth for oar- lage tops. H. Fox also proves, that about tho same peried he gaw Collina hoating a compound of aul- phur, rubber and white lead Timotby Willington, a merchant of Newton Falls, ves that he purchased from him in 1834, a recoipt r a compound of sulphur, indiarubber and ‘ead. Mr. Winnp, @ witness on tho other side, proves that while Richard Collins waa at the Salom Factory, (volume 4 defendant’s printing, page &9,) he used a compound of rubber, sulphur and . It is true he characterizes him as an indolent man; bu; indo- lence is not incompatible with genius. Perhaps it is not very often that the highest order of intellect is found in a bard working, physically active frame. Mr. Btone, avcanein pes of one re 0 pit parties, (volume fendent’s printing, page 51,) aleo confirms Mr. Collins. d I now refer to a contract betweon the company and Collins, (2d volume plaintifi’s printing, ap- pended to the examination of Mr. John Winne.) It ia a copy of Richard Collins’ contract with tho Salem Company, and the Directors expresaly engage to koep his eccrete inviolate. Tho bends executed by the Boston Company, in all.probebility were the samo ns those he exacted from the Salem Somber. I respectfully submit that whon Mr. Collins tosti- ficd that he had required bonds to kcep secret his knowlodge of the rubber business, that he has out of tho mouths of the witneseos on the other sido, mainiy,because the testimony ordinarily camo from that side, establivhed beyond all reasonable doubt, tho fact that such bonds were delivered by him pre- cisely ashe has alleged. It is true, a man named Badger, the Treasurer of the Boston Company, states that he did not give.a bond. Bat there is not to be found among all the witnesses, one who has mapifeated more reluctance to disclose tho truth, or who by his want of recollection,has more closely imitated the colobrated Italian whoso answer has become a bye. word, engrafted upon our mother tongue. If I were to point my finger at any of these witnesses whose memories are 80 treachorously for- gettul, it would be more erpecially aimed at this individual. But it is not my desire to utter inveo- tives orsarcasms. I can neithermake this man bet- ter nor worse, by any thing I can say, and if there can be anything in bis evidence which detracts fromits character, I care not to add my little weight for tho purporo of bearing it down still further. It is cnough for mo to place Badger’s ovidence before the Court, for the purpose of showing that, whcn he denies the bond, it is only, after all, no more and no less than non mi ricordo. i c lam at a loss to imogino how it was in the power of my client to procure a groater number of respectable witnesses who testify to their knowledge of facts and dates, who give particulars, and are men of character, of intelligence, and of standing. They have shown that Collins was taken into the employ ment of the first companies in Massachusetts; that he was a man of great ingenuity; who atruck out new inventions in machinery; and who, beyond all doubt, had skill in tho manufacturo of these rub- ber fabrics. He went to Lynn, and immediately took the first rank in the establishment there—he went to Boston, the headquarters (it is said) of skill and perfection inthe arts, and was engaged there to put up his new inventions in Pitts street; he con- thoir integrit orthy remark, that ame this branch of tho onze, my learned fon the arom ae totally ab stained from 1 any! 0 an asteneps to supply # satisfactory explanation; while vee pear aan Fe break ee ere Chay testimony, im re; to the curing of the triple compound, owerting that Pratt could not have attained a ficient degree of heat, by a stove or furnace, to val- canizo rubber, there was not an effort mude to assadl him in reference to the early use of the triple com- pound, ‘ Tt appears to mo that this branch of the cause | might be rested upon tis testimony. Agen illus tration of thie, ] submit that, if in 1844, whoa Mg. Goodyear took out his patent, claiming to be | author of the triple compound, he had filed bis ba against Pratt for an injunction, or hed bi on action at law charging him with infringement; ead Mr. Pratt had then proved what these witnesses havo proved in this case, thore could met bave been adoubt of tho result He never cout have enforced as against Pratt, his patent for the triple compound. There is still another class of witnesses, whe pers that the compound of lead, sulpbur, ‘and rab er, was known and used prior to the time of the alleged invention thereof, by Goodyear. In 183@ and 1835, Mr. Nathanic! Stoddaid eauiployed tasep thice articles, in combination, with largely maam- foctured fabrics of rubber. This fact ttoated hg him, and also by Mrs Stoddard, (hia es) onde Mra. Whitney, who worked for him in 138%, who used the matoria!s, and by Mr. Chase, whe roves tho exact fact. Ho is aleo supported by Me. Tileston. Theee persons are, I believe, of conceded respectability. Mr. Stoddard, by various parts ef the evidenco, appears to huve been omploret te those interested on tho other sido; he had beem their foreman and machinist, and was ovo of the best operatives they ever employed. Ho is free from all reproach, either prior, or during, oc sinee, his connection with them. I propose, now, to conclude this branch of the investigation, by noticing the witnesses on tho other sido— their Haywards, thoir Humphreys, aud Cut- lers, and will make up by them tho public use of te triple compound long prior to the alleged discovery of it by Goodyear; and if their evidence shall come up to what I suppose it will, an uninterrupted ohain of testimony will have been adduced, of which the ae tive partizans of the plaintiff will constitute a part. Mr. Cutting then proceeded to examine the de- positions of Humphrey and othors—he thon pre- ceeded. The next witnors that I shall invoke, and draw forth to testify aguinst himself and his cosdjuters and associates, and so erevens his petting the availa of this action, is Mr. Nathaniel Hayward himself. He has had the good fortune to have accum out of this inatter, a large fortuno; he is now the owner of one-fourth of the Hayward Rubber Com- y, Which alono has a cash capital of $150,000. Je is one of tho contributors of the 15 per cemé iund, withdrawn from the whole amount of tarifis paid upon the articles manufactured of rubber, and placed in the hands of a conan treasurer, for purpores of disbursement, of mecting the expenses of this controversy, for conducing to tho genoral success of the owners of this patent, and by means of which a ror, poweefal. and oxtremely well organized and disciplined baad carry on this litigation. Such being tho position of Hayward, he of all men is most interested in not dis- closing the prior use of this compound. Concessions coming from him and against his present in aro entitled to controlling influence. In the yolume of plaintifi’s printing, page 723, in answer te ki ducted that establishment antil it was destroyed by conflagration, when he was immediately transferred to Salem for the purpose of putting up there tho eame description of machinery, and that he con- tinued there until the countiy was sees by the finoncial tornado of 1837, when that ostablishment, with so many magnificent strustures, fell before the storm. We produce vouchers, and receipts, sworn to by four or five individuals, all establishing the truth of our case. Thore who Spor us are driven to the dilemma of contending, in the fuce of this numerous assemblage of witnesses, without a particle of proof against one of them, to pronounee these receipis to be forgeries deliberately got up for the oceacion. Will your H yeach such a conclusion a8 that, without Ave respectable witnesses to be brought hese to be so judged, and their eharactera deetroyed without a particle of proof! Ought not Goodyear and his associates rather to hs tempted to im peach their general character for veracity? Out 0° a long list of witnesses, not cne has been open to im- reachment Hounds were pul upon the seent—io one ef them $100 were pr for no purpose otho 1 10 induce him to tr or scent out some indi- 1% to utter somothing tot para, rdand John Collins. You have the CONTINUATION OF MR. CUTTING’S ARGUMENT. WAY Morning, Murch 29, 1852. f the court, on Saturday, I qacstion, whether the composi- , rubber and sulphar, was, or not, in ueo prior to the timo of the jon of that compound by Mr. |» at very great length, with e ‘ity, and in most tedious de- tail exo g evidence. I bad thon approach- ed another class of witnesses, by whom, we insist that we have also proved thet this sayue composition of the triple compound, had been known aad used publicly, and within the knowledge of numerous pereons revere] yours prior to tho alleged invention of this compound, by Sir Goodyca: J now draw the attention of t dence of Elisha Pratt, to whom attention. He ise gentleman of undoubted integrity of character. many years in the world, and wa: 1924, bs a patentee of of rubber good whos alleged Goe dycar, ‘ourt, to tho evi- yoke particular questioned and He has lived own as early as ion in the manufac- , thea new branch machinist in one d his attention to n invention, ly w t to the founders of the establish- longer to n. He me diteo- d tho triple compou' By a mere accident, he discovered the effect of heat upon rubber goods. He f New York, where a new asso- : formed © purpose of manu- viing rubber tabriei hen en i ie tered into an arrangement with a wel wn tirm of batters in cliy, (Simms, Miller & Co.) whose establish- 1 t, and 2 the bad wronghetho cha ‘ons and ch this ed, ay ond to d. but the compound ving ir Or hot some person. othe | not, pridr to Lim, invent and 1 © compound. ny of Mr. P in which corrobos Mr. Prout ried | rates, in eubsinnee, t } Tho next witn | poune, avd other a " factory, in Now York, Mr. Edward Spear, (volume 2 defordant’s printing, page 9, question 8, and page Lk, question 46.) Thovgb a very long and soy cre cross oxamination, T am justified in enying that his testimeny upon this sige not only remains unshoken, but { think will | ‘be very satisfactory to the Court. ‘The poxt witness to whom wo refor is. Mrs. Had- ley, whose ‘ defendant's stimonry if te be foun sf in 1896, a inna pede 6 cen Pt in 5 act hise iments at the bot- tom of page], (quoutiva we ninety: fourth question, Hay ward was asked, “Please state more fully.” &c. Mr. Cutting here went inte an examination of the evidence. i That, if the Court mt the thing itself. I you lock at Hayward’s paient, you will find the samo proportion of sulphur to that quantity of rab- ber, dissolved substantially in the same way, wit about the like proportion of white lead. This, sir, was in 1826. (The Covrt—* And patented in 1839 2") No, sir, the triple compound itself was not pee tented until 1844, and tho identical compound wes used in 1886, It is the veritable thing, the genuine article. ‘ Ixhibit G, at the end of Mayward’s examination, volume 2, plaintiff's printing. page 786, is a mere fulland accurate disclosure by Huywaig, underoath, cf the same fact. ‘Tbia aftidavit was sworn to on the 9th of Novemme ber, 844, adate when his memory was more secur rato thon when examined in 1850. {r. Cutler, another witness on tho part of the laintiff, an associate of Mr. Goodycar, and a coatei- Eutor of the fund in question, testifies to substem- tially the same thing. (Plaintiff’s printing, vol. 2, 61, question 181.) he next witness on the other side, who establishes the same proposition, is Mr. Stone, an extrem zealous and partial witness. (Plaintiff’s first vel., p4go 56, exhibit A.) Mr. Coburn (vol. 1, question 5), aleo proves tha the very compound set iorth in Goodyear’s wes in actual public use by Hayward as early ag 1810. Mr. William Beers, of Woburn, substantially re- iterates the same facts. B | bave now terminated this very tedious and am interesting examination of evidence, co far as it ia opplicubie to the triple compound ; and I cannot re- sist the conclusion that, whether yon consider the respectability of the witnesses ; the mannerin whie they are supported ; the definitences and precision with which they have spoken ; the numerous cross examinations which at long intervals _ have withstood, that we have established upon this branoly of tho caso, a most perfect defence; aud if there were anything left in doubt by our witnesses when I have entered the camp of the enemy, and have invoked their leading witnesees, and they have distinctly aad positively testified to like facts, may I not cone! that, this part ofour defence is entirely impregnable t. The uext proposition is, that the proportions of bber aud sulphur (assuming for argument’s sake that Mr. Goodyear’s patent ie in other respects valid), as described by Goedyeer, aro not # ble of any practical or usefal result; that the pro- Ivet is of no utility, and that in point of fact, none of the manufactn ploy the process, or come pound, described Year in the patent. ification in describing the procees by composition of matter is to be mm ive that the article cannot be manufaes y following any of the directions to be foun® in the patent. By adopting his proportions, am | orticle of no utility whatever would be the resuit. } Ip fact, the pre and the composition described. | by him, have leng since been abandoned, and have given way to o' modes of mixing tho rubber. ‘this proposition is suppgrted by witnesses, whore rames Iwill simply wenuon In this respect, botla patents are alike—tho patent of 119, as fer asi covers the patent of I®f identical with it. witnesses I now to wre, Mv. Gilbert, } mely intelti- ), Me. Mix abstract of the essen- | be printed on the eive at our hands. d, perbope, in vorious nspects the jon of fact existing in the led to examine vturity, is this—thas ring of rubber, never invent ber compounds by a high degree of heat, | cither before or after others bad invented and weed it: but, on the contrary, the knowledge of thia ss, and of its effects, was communicated to hiaa by others, when he had at most only some vague conceptions, or some genera! remote idea of the me tter. Independent of those persons who did discover and inform bm of the resulte, there aro other te sprctable and unquestionable witnesses of integrity ! ova character, ny judgment, were cartier Mr. Ccodyear, even if ho ever attention to a witnogs, named Wile 1 2, plaintift’s printing, page 799), vudneo through the medium of 8, Mr. W. Cotman, a goatlee for the purpose of showing nt period, his house was the © of the plaintiff's counsel, deoply iterested in this patent, Hix he héadqnar f the learned gentlo= the wae obtaining evidence, ex anining cs, and acvending to the business of this case. icumstonee aithorises me to infer tust he & Terpectable man, because Mr. Judsow would not bay» volected the honse of » person ovil repute, or whore soeioly and axseociation would huve heen unbecoming. He declares, (here evidence was rend). So that Mr Beers is, undoubted!y, judging from lig society, and the gentleman who engaged his {1 é rs hose testimony reliance Range: Le a His ovitonee upon the mijort of | heat is this:—vol. 2, plaintiff's privting- ( te the Court.) Will you now slate any process shown ME ceody zon, fr heating aad cusing India voor, fore taveates © oS mere w | ‘aie e my ta, of Deyward's maaviacture; I bald {comSves om guxTa rage]