NORTON. fl. CALIFORNIA AUTOMATIC CAN CO.
of the clerks of the various counties, and not be opened except in a case of contested election, that it should prohibit the courts of the state to preserve the life of the state, and punish crime and deter criminals, by producing before grand juries and courts the ballots cast at any election whatever. "Rex legf 8ubjectUB est "-"The king is Ilubject to the law"is a maxim with the Magna Charta, and is but a terse and forceful expression of the fact that in a government of laws all, from the highest to the lowest, are amenable to the law. But, if the propositions urged by the respondent are to prevail, the election officers "referred to, who are popularly supposed to be the servants of the. people, are above the law, and may thwart the will of the people with impunity. It is attempted in the argument to put this secrecy of the ballot upon the same ground with privileged communications. such as those made at the confessional, to the lawyer, to the physician, or that are made between husband and wife. What ground there is for this contantion I fail to see. There is reason that the communications thus made, and which have ever been considered privileged, should he so, for they relate to statements and confessions that possibly endanger the life, liberty, the property, or the fair fame of the person making the communications, or else they are made in the secrecy and confidence of the marriage relation, the disturbing or destruction of which may well be said to be against well-established public policy. But here the person whose rights are affected-i. e., the citizen who casts the ballot-is making no demands that the secrecy shall be preserved. He is in no manner affected in his life, his liberty, or his estate by the divulging of the fact as to how he has cast his ballot, but, as has been shown, his rights often can .only be protected by the examination of the ballots, to see if they have been correctly returned. So, upon this view of the case, independently of the question as to the paramount effect of the federal laws in regard to these elections, I hold that the r.esponse of the clerk of the circuit court of Conway county in this case is utterly insufficient. .
fl. CALIFORNIA AUTOMATIC CAN
Co. et al.
(OirCUttt OoW't, N. D. OaUfO'l"nU&. February 10, 1891.)
:P4TENTS POR INVENTIONS-ANTICIPATION.
Claims I, 2. 8, 4, 5,7, and ]0 of patent No. .ft.IIII. dated March 20, 1888, Issued to Norton and are valid claims, and are 110t anticipated by the prior paten' No. 267,014,lsslled toE. Norton. . Claims Nos. 1, 2, and 5 of patent No. 882,567, dated &1'8,1888, issued to John Solter, are in.fringea by defendants. .
,In Equity. . . . ,. ;. Mon.day,Eva,rt8 4cAdcock
" HaveruJ, for complainants.
BtfOne, fOl'rest>ohdelltB." .
Ihave'examined this Cllse with"ea,re, and without enterdiscussion of the: points involved, I will now ,an'" ing into n6'unce my: conclusions. lam ()f thedpinion that claims I, 2, 3, 4, 5, 7;and 10 of pateIitNo.' 274,363, dated March 20; 1883, issued to Norton and Hodgson, and now owned by complainants, are valid claims, and t'hatthey are udtanticipated by the prior patent No. 267,014, issued to E: Norton, or by the Pearce patent in evidence; Ori the' hearing of the application forarijinjUnction I only passed upon claim 7, for the rea.. son'that counsel waived a' consideration and decision ()f the other claims, for the purposes of that application. My attentioIi is now first called to the theN'Orton maehine,there isa discharging chute, but some of the in the seventh claim of the Norton and Hodgsbti 'patent are entirely different ,from the elements in the second <:1ai111)( the Norton patent.' AlthoU'gh I am U(}t clear as to the validity of claim 7, 8S I'think the others arevttlid,Ishalllet my prior ruling on this claim stand for an authoritative ,dectsion by the'supreme court, should an appeal, be taken, unless com'plainants choose to waive it. lam also satisfied that those claims were all infringed by respondents before the: institution of thifl suit. The respondents' machine put in evidence, ha8the "guide" plates, G, described inthe Norton and Hodgson patent, or similar plates, which they call" gunrd "plates. They are similarly lObated; only they are not placed at precisely the same angle,Olr4n. cHnation, towards each other. They are also described as a part of rei spon'dents'piltetlt to Angel and Kendall, and they I;1ccomplish the same purpose" as those in complainants' pateht, and in, substantially, the same 'Way. They are, the same thing. ,If not, they are, 'clearly, mechanical substitutes for the, gUide plates of complainants' machine. The said machine of defendants wasccinstructed, mainly, in accordance with the Angel and Kendall patent owned by them. So, also, the curved spring, g, of complainants' patent to Norton and Hodgson is representt:Jd by another device of a different mechanical construction in respondents' machine; and it performs the same service in, substantially, the same way. So far as it extends, for the purpose required, it is practllemouth of the suptically a.cul'ved spring. It doesnotstar.t so ply chute, and is not so long as complainants' spring, but it covers all the operative pInt of the space, and performs the same service in, substantially. the same way, and for the purpose of complainants' device, it is, subatalftil/-lly, the slj.51}ething.. Ifnotexllctlr.the same thing, in mechanical eonstrnction, it"IS, clearly, 8., t;Uechanicalsubstitute for it. It may perform some other functions, but this does not>prevent itfrom being an Thl;lpther ,differencespoilltedout, are, merely, differences in mechanical construction of the respective devices, which do not affect their substantial operation. So, also, in my judgment, the claims 1, 2, 3, and 5 in patent'No. 382,567, dated May 8, 1888, issuedt.6 John Solter, and owned by 'com-
.. ; COLLING ,".
plainants,are valid claims, and that they have been infringed by respondents.' Ris claimed that this patent is anticipated by respondents' pat. ent to Angel and Kendall as it is older in date, because it is claimed that the date'bnhe filing of the Solter patent found on the patent, is not evidence of the date of filing. This objection was not made till the testimony was all in, and till the argument made by defendants' counsel. The date of filing is always indorsed on the specifications, ana a copy of the specifications and drawings iSl'equired:by the statute to be annexed to the I do not see why the specifications and indorsements thereon, required by the statute, constituting a part of the patent issued under the. signature ,and seal of the proper officer, are not evidence of the date It is an official document. and the indorsement.ig a part oftherooord. No suchohjection has everbeen taken before me·before. ang tile qate of filing has without objection, heretofore, been taken as true. Ikl,lQW of no decision of the courts holding that it is not legal evi.. dence Qf,tlle,dll.te of filing. Bllt, however that may. be, this patent was not plead,ed ,as an anticipation, IJnd was not put in evidence for any such purpose, and it cannot nQwbe considered for that purpose. It, is not necellsary to determine at this time whether respondents continue use all the elements of each of these claims, Qr substitutes therefor. Xt is,enough that prior infringements are shown. If one elem,ent of apyclaimhasbeen wholly omitted in machines now in use, and no substitute .thl;lrefor used, of qourse respondents have ceased fringe that claim, and respondents are only liable for infringements of such claims as have been actually infringed, whilethe,infringement continued. Wb.at the extellt of the infringement hl!8 been, and how long continued, will be questions for. the and determina; tion of the master, on the accounting. Let an interiQcutory decree for complainants be entered as to the claims and patent.j3 'bereinbefore indicated, as being valid and having been infringed,and the case referred to the standing master in chancery to lIrscertain and report profits, damages, etc., and if the parties desire it, with to, a'l appeal, it;may, be .proyided, that the master ascertain and report the. proportion Or amount of the, profits and damages due tQ the. of claim 7.
(Circw!t OdUn't, N. D. OaZifornf.a.· January t9,l89L)
PJ-TEN'M POD INVBN'I'IONll-INPBINGlilMENT-WEIGll'l' OF .EVIDENCB. , In. ,1I,I1 actio,n for infringing a patent for belts, defendants
answered, deroath, denYing thattMy had ever used the invention or infringed the patent. It was ·admitted. however, that,oneof tbem made abel1;j but he.testified that 4__ destroyed it without ever. using or attempting to sell ,it.. Complainant testifie4 that 011e of defendants shoWed him a belt like his own, 'au'd 'offered it for sale; A wUbess· :nid. that deten'dants'showed him: a andoteered it for aa,!.e.;