Record and brief — William D. Andrews, George H. Andrews, Nelson W. Green and Noah J. Parsons, Appellants, vs. George Hovey

Supreme Court brief1887

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SUPREME COURT OF THE UNITED STATES.

OCTOBER TERM, 1587.

No. 16.

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WILLIAM D. ANDREWS, GEORGE H. ANDREWS, NELSON —

W. GREEN ..ND NOAH J. PARSONS, APPELLANTS, ad

Us,

Se te “

GEORGE HOVEY.

ee AO RgP em querngy

, Me

APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR

THE SOUTHERN DISTRICT OF IOWA.

FILED OCTOBER 29, 1583.

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CeCe sat S2-+ of ft ei = §

SUPREME COURT OF THE UNITED STATES.

OCTOBER TERM, 1887.

No. 16.

WILLIAM D. ANDREWS, GEORGE H. ANDREWS, NELSON

W. GREEN AND NOAH J. PARSONS, APPELLANTS,

US.

GEORGE HOVEY.

APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR

THE SOUTHERN DISTRICT OF IOWA.

INDEX.

Original. Print.

namesom tommitied in printing). i..0- 0. ~~~ sate sneee coos tan 1

ee MONI oo ores cc ee Se ene ink anes eed eemenenlell 3

Exhibit A—Decree in Andrews e¢ al. vs. Carman_-__- ---. ------ 29

B—Injunction against Theo. A. Carman...-. ..-- ---... 35

C—Decree in Andrews e¢ al. vs. Wright ..-- 38

D—Injunction against Geo. B. Wright -_-- 44

PODER BAG FOUITR 5 ois Ses sons sw ce eos soins 5 ais: Kone Seemed

Amendment to bill

Precipe for default (omitted in printing) ..-..----------. ------ wcciiiles

Motior. and affidavit to set aside default (omitted in printing) .

Order on motion to set aside default, &c. (omitted in printing). -_-.. se

Motion for preliminary injunction (omitted in printing)

PE Te ia aii vn A icon ake saison stairs cow toch ema Ske a acta 73

Replication — ..---- (cian inch alee aegetlanls lain wines aorta ae

Order denying motion for injunction (omitted in printing) 112

Opinion on motion for preliminary injunction (omitted in printing)... 114

Order for continuance (omitted in printing)-.--..------.---.--.---. 118

Order granting leave to amend answer 120

Defendant’s cost bill on injunction (omitted in printing) 122

Motion for leave to amend answer 124

Amendments to answer-_~-_---. -----. 127

List of wells made by defendants._-----. -... ---. ------------------' 145

Notice as to proof of prior use -..__- -_-- 153

Notice as to testimony of Ross et al.__.---.---.--------.-~ ---.--— 156

Tl I Sallll eS Bowman

JupDD & DETWEILER, PRINTERS, WASHINGTON, AuGusT 11, 1887.

If INDEX.

Motion to extend time to take testimony (omitted in printing) ---~~ i

Affidavits in support of motion to extend time, &c. (omitted in printing)

Defendant’s statement on application for time (omitted in printing) ~~

Order enlarging time to take testimony (omitted in printing) —------

Notice of motion for order to compel payment of costs (omitted in

a ee ac cia eens clabielas

Motion for costs on injunction (omitted in printing)

Affidavit of Geo. Hovey (omitted in printing) — —~--- -.-. -----. ----

Order to tax costs, &c. (omitted in printing) -. .. .... .-.... ..... ....~-

Motion to extend time to také testimony (omitted in printing)

Affidavits on motion to extend time (omitted in printing

Motion by defendant for postponement (omitted in printing)

Affidavit on motion for postponement (omitted in printing)

See UN COUT Oi a iis he eens omen ae

Order extending time to take testimony, &e. (omitted in printing) ----

Motion to extend time to take testimony (omitted in printing)

Affidavit of Jed Lake (omitted in printing)

Order fixing time for hearing of motion to extend timé (omitted in

a ie ci este: liv ahiaetenanieiw, Seon anal in de NN

Affidavit on motion to extend time (omitted in printing)

Order on motion to extend time (omitted in printing) -..-- -.----- ----

Affidavits on motion to extend time (omitted in printing) ~--.--. -.--

Motion to extend time to take testimony (omitted in printing)

Affidavits on motion to extend time (omitted in printing) ----.------

Motions to suppress depositions (omitted in printing) ---------------

Affidavits on motions to suppress (omitted in printing) ~-.------ .---

Order extending time to take testimony, &c. (omitted in printing) ---

Complainants’ trial notice (omitted in printing)

‘Motion to set case for hearing (omitted in printing)

Order as to additional security for costs, &e. (omitted in printing) ---

Complainants’ trial notice (omitted in printing)

Defendant’s trial notice (omitted in printing) -.---.------ ---...--.-

Order setting cause for hearing (omitted in printing)

Onder at to briefs (omitted in printing) ..... ...- 265 Looe os kee

Motion for decrees in other eases, &c. (omitted in printing)

Stipulations as to proofs in other cases, &c. (omitted in printing)

Motion for security for costs, &c. (omitted in printing

oie: Of PWAES BRING vn cei siten oie oka ween

OG DIICG wc sek ans dibs ines hbin be ee nek Ses

Dissenting opinion of Judge Nelson~

Ry OD ane ie cin hk nn Kein eno new a | BORER aRe ne

OE BATT GION os sisi et adn Sc en be a ie

Appeal Tn

Citation

a A I Or a

Se OOS aaiicinis os Kt nti we re oes Ke el ee

Caption to depositions (omitted in printing)

Stipulation as to notary (omitted in printing) ----

Evidence for complainants bisa heonit ahaa. shai sc dk ie acaba

Testimony of George Hovey -

Bhs hs BROVOG ccc dcsn) sede oe -

Anton BARON ii cw ec nk a a

A. i. Trask...

Original.

159

162

209

215

215

219

223

228

230

232

345

344

399

399

308

861

365

629

634

636

638

644

646

649

651

654

656

667

672

688

695

697

698

700

708

709

710

712

713

715

715

801

812

814

Print.

INDEX. III

Original. Print.

Notary’s certificate (omitted in printing) —

Testimony of D. W. Hovey 123

Notice to take testimony, &c. (omitted in printing) —

I OE Fe a, FI ais chiki ith es tees ge ee ee 3 141

a io rie ti ancient aegis cence peel scene snes é 144

G. W. Brown 145

Notary’s certificate, &c. (omitted in printing)

Testimony of Thomas Dobson

Nate Stanton

I a eileen eres epntinss sepwinrn, 1 ee eeeniorin

oS

ed

co)

-

me

DW CO |

° oe

~I Gt ~]

sn

Ce TAI alin cos ee aati i i emote me te accra

Exhibit A—Reissue Letters Patent No. 4372 granted Nelson W.

ei, Be Fre casein. acsaitk sie nies iach reese i 168

Exhibit B—Assignment from Nelson W. Green and Wm. D.

Andrews & Bro. to Noah I. Parsons, Oct. 15, 1878 914 169

ey OE FO oa ie Silence esti th eile thn ith ns Sei 170

We Sy ia ia dik rns 440s Gino 932 175

Andrew Thompson -- 176

Bi pntiraee Seta xn so i cc eens oe pis 2 179

A. W. McClellan 182

186

TN TG | I iss cnn pi nse ceisincein seria einen

Fn SET AO ME OL 962 190

EF BI iii ters ececnine shibiiciinn 193

SN Te IN sce 4m sie tin 96§ 195

ne nin isn, acenidiein eevee 197

I a 199

i. cake aaa uw epee nines 202

ee Ee ae EERE 205

i a en 206

990 209

992 eee

I NE ook ie ge mee Menigalenn onal

Notary’s certificate, &c. (omitted in printing) -.-. -.-------- .---

Testimony of H. C. Morehead 1003 210

J. M. May 1009 214

Notary’s certificate, &c. (omitted in printing) ---------.--....-. 1013

Exhibit A—Reissue Letter Patent No. 4572 granted Nelson W.

TR, FP i RE a ee sneer agintnien een

Exhibit B—Certificate of Patent Office ._.............-... ......' 10382

C—Assignment of Green et a/. to Parsons, Oct. 15, 1878. 103:

D—Decree in Andrews e¢ al. vs, Carman ‘i 1042

E—Injunction against Carman -__--. -----. -----------. 1049

F—Decree in Andrews et a/. vs. Carman__-. ----.----. 1053

G—Decree in Andrews ef¢ al, vs. Wright-----.. ---...-. 1060

H-—Decree in Andrews e¢ al. vs. Wright._.. -.---..--.- 1067

I—Injunction against Wright ; 1072

J—Decree in Hines et al. vs. Wahl__- 1078

K—Opinion in Green vs. French ._....-. -.-. .--.---. 1085

Testimony of Wm. D. Andrews 1099

I cae silk “nilioesen arom oon thane Amides.)

Rene Comat © Co. CRTOUIIT . 8c. cn. ene cevecsesssceense AUG

Notary’s certificate, &c. (omitted in printed) ; 1148

Stipulation as to testimony (omitted in printing) ----.---------- 1151

INDEX.

Testimony of John Q. Royce.... ..-- .--. ----

Notary’s certificate, &c. (omitted in printing)

Zeatsmony of Charles Bron... u..onn oc settee see ses ie ere

Notary’s certificate, &c. (omitted in printing) ~------ .-----------

Testimony of Adelbert Brown... ..... ....... ..... -.--- ‘

Rene Wl , BUR icin ime is Rak aera dines

peneny OE Tin: FE Tmt ais sk en tee Stewie eee

GR es Si hd nd Ra OR i alee ee

Ss i AE ilcniniintic sistas: decease tatealaila A cates eels onde

Oe A I sick ees ied oe cineinl Ce

Wm. O. Barnard. -.--- sieht

Notary’s certificate, &c. (omitted in printing)-----. ---- --------

memteaneny Of J. OE. CON ona ons een ow on chs i

Notary’s certificate, &c. (omitted in printing) --.--. -----. ------

Pans 0k Dei WEG aici, ccc ect ee sn Se peat

Bhs We I ia te i Bs se No el ee cele

i Fl i cia etek esp ible Menno

Notary’s certificate, &c. (omitted in printing) -.-.-------- ---- ite

NS OT FOR DARD ci. ccc sie necntneiekicxdeiainbcdianes

Exhibit A—Newspaper articles_ .-- .-- ---- ---- sass

Notary’s certificate, &c. (omitted in printing) -- Wacice

eetreey Of Tmene is cisik eet oie sew

RET FTIR on ins ee tieeriin eek pace ee econ

Se Be, IOs iit nto teased een enslal capi

Pe TROON i isccbcen eee a ni es es

Notice to take testimony, &c. (omitted in printing) -

INT OF DORR Tis TOO ~ wiineritntenst cic «min nao iel iaeaions

ER I iin iinitees: sacks dive nletininh abit Mh ease Whee

Exhibit H. W.—Letter of N. W. Green to H. Ward, January 3,

____ RCRA IO PORE MG MEN RSI ON ea) Ss AF TE NCR? IO

Exhibit H. W., No. 2—Letter of Commissioner of Patents to H.

Ward, March 9, 1866, &c. .... ........-

IE OE ae NU Bh SR iia iis cao cciee wien cen ees ae

Notary’s certificate, &c. (omitted in printing) ..-.-.------.. =e

CRN OF ak CRN OD, TENOR aioe: ci sinaccenls nisin oka sentins

OE Fe sind se eentin Sea tee ii

CI Bc HIG cei since a Sets ons pied aie

John Vandenburgh -_--_- sensi aides .

WF 5 a IN cise neice os ei ucnicsh eskeni ladle Neliiassiaie

CRRRG OU ER TOI isi ik sects tite aes

Notary’s certificate, &c. (omitted in printing)---- .---. -.-.----

ES OT ONG FE. TEI oie neers deed ean ben ens

NT I ain 5 oe isha ses Sian es ann eatin

Notary’s certificate, &c. (omitted in printing) -----.-.---. .-....

Testimony of Matthias Vanhoesen-___...-_- siete aiiacan ialesboleseealaai aan ie

RO I ee ia recited cacti ccs access She leo islestaeinan

Gerrit S. Vanhoesen a nat

John Vandenburgh--_-_- >

See Th I ois hd ise

nn Fay ii isk Mire Bib see edad scenes

Notary’s certificate, &c. (omitted in printing

Testimony of Nicholas B, Haynes: jin.5- 2c kk cide etidaice

Original.

1153

1163

1168

1179

1196

1207

1217

1226

1238

1243

1250

1265

1271

1288

1296

1301

1506

1309

1313

1321

1324

33

1835

1348

1352

1356

1363

1569

1372

1376

1379

1388

1399

1434

1448

1462

1468

1475

1486

1496

1501

1523

1582

1542

1546

1549

1552

1556

1560

1569

Print.

258

262

269

275

281

284

292

294

298

304

315

318

320

$22

326

328

oO)

vv

340

0435

346

549

Oe

INDEX. V

gk. Original. Print.

Notary’s certificate, &c. (omitted in printing) ---. .------------ 1575 —

antiniais aE Gitink PE goss St stew wth eee 1577 446

em: i, CI rile nerd eee cee hee ees ce TE 452

Mrs. Emma Share Aisi lak ins naisehislianiealion 464

~~ e PN 5 INE tise ave etrse en cig Snsinsene shiner cic es orlnai anicie = 467

\ Notary’s certificate, &e. (omitted in printing) -----. .--- ---- ---- 1642 —

NIE 0 NINE TRI niin ees ces eerierie oaninsin Sn ann SO 476

wa Notice to take testimony, &c. (omitted in printing) WwW - ------ 1719 —

ae Tetmaons of Chester P. Burd ..... .... ...... -.~. .... —- sa ites 1722 524

y I ir aninined ssesecpeinr minced asi idicdnaaln plait 1749-89

ified ; Notice to take testimony, &c. (omitted in printing)._-.--- --.--. 1760 os

Stra Testimony of Ambrose J. Armstrong - -.-. ..-. ...-<. .... ....... 1765 545

I Te asia idee ncn oe reser woe desea a nnd 1772 548

James O. McClure. _-.-_-- an i: sm tic sian ai 1784 555

Lucetta Windsor i Siler sical il stalin leant 1788 558

Notice to take testimony, &c. (omitted in printing) .-..---.-.... 1791 a

ie. as Testimony of Nelson W. Green__~~~-- .--- bites teens See 559

oe: IL Ti Tiss in Sitio iets iesenhen ‘ero nro 1869 605

. i cities cst reine weed eae 611

Notice to take testimony, &c. (omitted in printing) - 1889 —

Testimony of John Fargo. ._-. Sc liga ak: cia oilaanleibia acta 1894 618

RE Te cities ck: armen mater isles end ict 1926 638

i FE I iit ots vicina emis die ecien eine 646

4 RR TTI arisen ti teed senate ‘nico 1945 649

Notary’s certificate, &c. (omitted in printing) ~~ ---~ ‘esate -.. 1959 —

oe ID OE I: TIO iiss entice sient leitd Serica caching ak seeeiattn ve A 658

IT TORII incense teenrrtenia escent estas tarasenisaial 2013 682

PO Ty FURS Be ils sist etree astm atta aha lias Witenes 2087 729

James S. Squires... ---- icicten ni mca “ae 747

WE, RIES decincine wscinmtions somes ain ween eee 767

: Seem T.. Ti i iia seis acennts Si ae elnine: 776

POE Ex: IG iss sited cian Wik ni ni aan iia einai a 799

i I Te I ict isis cerned eine cai: Sap wigan 2274 833

be fi Notary’s certificate, &c. (omitted in printing) ---. ---. .----. -- 2344 —

i ee | | eC Dn INES nD PA m - 2355 872

I FEE i sin, icine nnd arn be ndinticaean 2363 878

a DeWitt C. MeGregor- ._-- eee we 2370 885

POG Th I ooecennn enim ian caece 889

RN IIE a cen cso ania tier dick a cinbiag Dak wks ictal 2388 894

» = EF GER OOIOD: nicer iinet nominee instbino 2400 902

I: a ON iin icsectiadjsceovennieie Sdalinid: snc vcaies aeoacbpblen ncdesnee So sensi a 906

NG FT iat sisi ishinins cise. cates Ginkisadt saiciods 909

ca. Oem Stephen D. Freer istth aaeiilis haietiksa dalabacaie = 928

“< Ns Fe I isc aspiracsantt sonics Seah cagailnk daca 2443 932

I IIE iis ince seceniia este soc a Seika 935

Notice to take testimony, &c. (omitted in printing)_.--... ---__- 2495 —

aw: Testimony of Elihu R. Benson_--~-. ----.--_-~-.-- 2504 959

Fs a I ee cscnce mee pti? dnc eal ... 2647 984

. ies Fe ios somninminnicd ne dates dae See 99]

- a Objections to take testimony, &c. (omitted in printing) --.-__ ~._- 2571 —

mS Exhibit Mudge—Pamphlet and advertisement, August 6, 1880. 2586 996

Notary’s certificate, &c. (omitted in printing)-----.------ -----. 2605 1000

VI INDEX.

Testimony of Abner Doubleday

PE I lintian ens ome mene eieeeiins

CRS ag eR a ccs sictien ose cies micieinnh asesncmiaeinnenie

Notary’s certificate, &c. (omitted in printing) .-.. --------... -.--

SS OE FE Be nine ine ein some See ion

John Q. Royce. jeossosal-wplgeson eee

Notary’s certificate, &c. (omitted in printing) -.-. ---.----.----.

Beatimony OF GG. Wy. BOO ce anne ecw ne pili

Evidence for defendant ‘ ili, eh i sega laigediiai

Notary’s certificate, &c. (omitted in printing) ------ -.-.-.-.----

Zestimony Of Timothy Fl. BURG nw. n+ nee os nil eee eon

EE LO ONC NR SEN MR eRe Re

Chancy C. Buxton...........- viola hata

TE Bee a rciisetiee wiereeninien seinen ncidinianin emsiiniannet

mxmiit Dio. 1—- Dieta, FeermAW, Oh. Ee ee cc sca ccine Sen

UNNI TID ci cei caps nscaseannssiign: snipisicgsndiniiien samiiabaidiia siabialeaas

Notary’s certificate, &c. (omitted in printing) . .-. ---. -----. ----

IN OT TE OUOE Eh OIE on sccecescin scenes eines satin Se

Notary’s certificate, &c. (omitted in printing)---.------ sai ilies

pohimony Of Abram Vn DOR BATED q 2.0 ccimnsin sep enw aene

Notary’s certificate, &c. (omitted in printing) ----~. .... -... -.-.

Testimony of John D. F. Woolston. ._.----- sists, inal hacoecolameliinaih

Notary’s certificate, &c. (omitted in printing) ------ sisi is ce eine

Testimony of Henry Woodruff -..__. - polls sc nisl

OTIS ec TIN sien nico sine eoenivins: siete wibicaaieaied Meena

PROREY: TAOS ocak anne swine ene aad iemiaisaend

FOF 6 Be nce ccine sr oin ne cen di tileds

Stipulations as to testimony, &c. (omitted in printing) ..----.--.

Testimony of Julius A. Graham --_--. nensinintnes dca iamiil

POOR Fe TIONG ocincnctcet kk ke i eet eee een

TE AE SO. SOTO. ssn sens sssssnsidionil aioli ok anionic waipeaiaitie

Stipulation as to testimony (omitted in printing) ~ .--.------ ----

Testimony of A | Umea RIR Aarne LOMO NROONC ICT econmne meaatagnre road

ROR TID sas écciniee desk ssh esicieieelinnianes Abeta nepeaiiidnns ic

Stipulation as to testimony, &c. (omitted in printing) -....-----.-

Testimony of Edwin W ilber ONO R RAMAN ROR RTS OI, BEEN 4 8 aR

I Dk. TIO x vee: wecicaniesti: aaionies lenin pad shaban aids

SRA WE SLOT: (ROCIO) aes: sisinsen nein omeneeciitians

Stipulation as to penmnny (omitted in printing) ......04 .~.+ «-<<.«-

nemmeony of Chas. Fo Waite - 5 a8 ce cui sees ies

Notary’s aa &c. (omitted in printing) .-.incend xncnen ones

ereeneny Oat I I iii cdi caoues baad a tN ta

Di Ths, SRO. « ncn twin: waist pe hiewns

iia i iii

I IG iiicin: as icine biinicitsth iia eit ii

as aise: in es a

Thomas Dobson -. - eo eee

CA RA seine si ssiisoire ehtaialili siipsiia ni nciaalapiaen demeseiiigenis

Notary’s certificate, &c. (omitted in printing)-------. ..-. ------

Notice to take testimony, &c. (omitted in printing) 6: aint lis

Tostioony. of db. 2). 2s, Fe OO ia cet rnin wi isan See hee

Brey NIG aici sk siete cat senha ea. sili en

Original.

2612

2621

2651

2658

2670

2829

2842

2852

2879

2880

2885

3019

3132

3211

3229

3230

3232

3237

“366

33868

3490

3493

3500

38509

3549

3559

3604

3616

3620

3645

3667

3773

Ota

38815

3828

3830

3847

3857

3886

3887

3907

3911

3929

3947

3954

3960

3962

3966

3969

3972

3978

4003

Print.

1003

1018

1023

1094

1101

11138

1113

1170

1220

1258

1268

1268

1269

1307

1344

1346

1361

1362

1375

1379

13888

1396

1429

1442

1446

1451

1456

1463

1469

1478

1486

1489

1492

1493

1494

1496

1503

ae en ie Oe

i

;

ee

INDEX. Vil

= ‘ : Original. Print.

Testimony of Calvin H. Haynes ..~... ....-.-.-------. ...----- 4052 1518

: Ne MIN gic = id i tk pases alin seems Seen Soa 4154 1539

es ei a i cee ee en ee 1541

er: Seems Bee. nn on Scien wes ce snen, SI 1550

TI: GN ios iiss irs come recens weteae tae 4219 1550

Notary’s certificate, &c., &c. (omitted in printing)-.---- ----- -- 4239 ~

Testinsotey of Robert Conine qua. 202 ne cs Sie ss ee AT 1566

“os ee I A I iid ric etdn cond cudineoln coe 1568

ee Exhibit A—Letter of Klock to Suggett, March 5, 1880 _.--..--. 4269 1569

°

i Exhibit No. 1—Article on “‘ Boring Wells’? -----~ ---- .--. ---- 427 1569

aI Exhibit No. 2—Article on ‘“‘ Earth Borer ”_..._-. .-.. -... ------- 4275 1570

ed Notice to take testimony (omitted in printing) -..--- (als oral aii elas 4277 -—

Testimony of E. S. Hovey -.--. -.-...- ab ieinccaaa sostians 4279 1571

Be I iaiinial Sai eieis Shek od ees Sons Se 1573

i TI sik sien Saat wetness ce ee 1575

ae I eka ea ithe 6 tii ects Se een: 1581

a Di oak oe niece ananassae’ eee 1581

rs Re ricci. die Se Ail eens cnniniin een ee 1586

; S. M. Marquette ‘iiadint cmon Saas 1589

ey I eiiick bia a iis aie een eek ORE 1590

I OE nrettit eik, Sten oe w ares ace 4321 1591

Orlando Cobb “ Liinlen-sopebiini tania aeiieien: ae 1594

ce * Exhibit—Copies of entries in Cobb’s account book .__. ---~-- -.-. 4333 1597

i Exhibit A—Deed of Hageman et ux. to Jordan, Sept. 16, 1862_-.. 4335 1598

FE Notary’s certificate, &c. (omitted in printing) .----- ---.._-...-- 37 —

4 43 1599

)

354 1603

368 1609

ives W. MeGafer ......... . ........ sta

45

45

ES OE Cutnee b. FI asic icin ins Si ccs <n eee,

43

Article from Reese’s Cyclopaedia on ‘‘ Borer in Rural Economy” 43

Notary’s certificate, (omitted in printing) —-- -- ae waddelbimeaaiein abiian 4897" -

ets OE Ts CORD isi sinc ose cc oeen donk eewans. SO 1618

a Notary’s certificate, &c. (omitted in printing)-...---- cabal nti oe —

A I TN soe ok crus de Kees See ne 1620

RE FENG iit cient See 1652

at I TION ik ie ites etnies walla pee Salma nin 1671

7 Cats F.: BRORP IE cnn gens .-.. 4563 1673

' Pewee Wiamnatn (FORO) isi inn isin cen actin enn 4569 1676

I Six ae iin see as ania ani Nate a ee nek. Se 1677

es NE 56s. ccicn oe ban cae ee 1678

1 Ss I oa eins Sinn peek Man beak ace cn eee 1689

ai ee ie a icc ies hc ie el nian ce Se 1693

I Tr IE ivi telcitina ik Aiiniks Waiinddns ns ees 1697

Un i SN iii ci circa eel ae diane wuieta aonieal* 1700

a ee i bag: 1703

eS i a I isnt niin leaks “echinacea. Welk dina cade cece 4637 1705

ics Ae ica: it sink basen nw <3 1707

Te IE Sistas Sins ede le nn ke 1710

a : Wh i ois ki ies Se 4668 1717

es acacia Gi cit aries e sia gal a 1718

? Geo. A. Williaims ...-_. 4683 1723

pe iT i iis caste nga ciniiead acaaetiaiuas nnmanes' a 1724

Be Te E iitiind siinictind nines ke oan SE 1730

ie Ti ith ite tie e's io ae 1751

INDEX.

Vill

Aemtimony Of BT, TT sdittink enced emnian cna tae enews

Ds Bs BRE ice cies ond cee

PES VOT TEMPO 6 piste ssn noes keen

Stephon Fi. FIRS ono cs cen axe eonciinne

We. Bhs Re SOOO cccine aus enn

hn Be SE cdi ann

WE EY | sch, serine ak tial cect sale loti nineteen apnea

Bo Os TO vicke ce oe nee

Bo: CA i sich shat isin hase evi

REE, COIN ak cecil ciate det binant alone

DR ick oc een sie eee. sien

George Warne (recalled) -..--. .-----

EIOPALIO BIFRAE in ne nce « 5 laa wales a

SORT PS. BANE vnciameninn becatinn .

A TA POS os as Bee sila i tii sdctncadsone abana

I. Jd. Marinus (reoRted) —....06. canna -

Do Mh. GRE ok ew dens Kee eed aie elem

Exhibits offered -_--- dasa sso aie slags: tslaleies siodiaaaak: abode aeaeeael Seman acaba

Destsmony Of GO BAe iis nises naesanns pcan nt hier nite wie tee

John H. Campbell

SS. 3. AD Nemy CTI) access essen teria sess cee

H. F. Sill hess siniieteapiideg asic elaaie ieeaeiedl sini

OD. Fs Ae RE geen ln aes id he kd le

OD, a Re icdis cca erenien nh callie ential waite

OE I ais sin os sesiinssasiins senna hoses aeons

Notary’s certificate, &c. (omitted in printing)

Testimony of BETS. BOGUS FAROE aoc ons 6 ics a sae eines

Notary’s certificate, &c. (omitted in printing)

POeONY OS Clone FAI og recieved coma enw

POSCD DB. TUN: cin Knee -

George Hovey .--. .... -- iis dani sitesi

George Mann ____~— hana

Thomas Sherwood -_-----. Spammer .

SR Te se iia in iar eae nid nh dna

OIE ii i i sad cs as

D. 8. Deering ._-- sisacieusis (is Uasacseabeeaecad

eon TT a

RGRet: FE. BER ae. a cine tine Rede en ee

UE ini es a

Exhibit A—Bond of Baxter Adams, &c. -... ....~-.-.-. Miealed icc

Testimony of J. J. Travis iiss saamibeabinasanaias ties aia a oa ae

Bi Tc iii i

unstated i ii ig i ca cilia seek acaiwianainne

Notary’s certificate, &c. (omitted in printing)---~-.-.---.----_-

Defendant’s Exhibit in rebuttal No. 1—Letters Patent No. 52267

granted Melvin C. Chamberlin, Jan. 80, 1866 __.

Teationony of 0. °F. RARE vo css ace ames seen Sie nek edna

Exhibit A—Affidavit of C. T. Kimball .-2. .... -.2.

Notice to take testimony, &c. (omitted in printing) -

Tealimony of danced Rick |... cccwes nimn sais conn Lek a

Notary’s certificate, &c., &c. (omitted in printing)... .... __.

rachel Kimball ...2-. PMN ee pF PORT sae

Original.

4781

4797

4805

4815

4832

4839

4843

4854

4864

4870

4882

4893

4900

4906

4913

4918

4923

4926

4928

4930

4940

4946

4949

4952

4959

5001

5037

5040

5050

5057

5073

5084

5096

5109

5113

5120

5141

5151

5159

5167

51738

5175

5183

5188

5201

5208

5216

5243

5247

5250

§255

Print.

1764

1769

1772

1777

1782

1786

1787

1792

1796

1798

1803

1808

1810

1812

1815

1817

1819

1820

1821

1822

1826

1828

1829

1831

1855

1849

1863

1868

1874

1879

1885

1890

1892

1895

1905

1909

1912

1914

1916

1917

1920

1921

Testimony of a ae

rr A ctecertll sine heap oneiaiin

ik ices ncaa Baten

a, NN NOON ook es ke ce stew Rowen

lila a kn eset tine iene

a ew gable mwonainn

EC aseameh Degen. ro elie, Hatin! oa ehh aes

Artemus Reed ______- ee as ore Sh Re YOR

Notary’s certificate, &c., (omitted in printing) ..... -----. ...----

Testimony of David 0; Crofeot -. .. .......0. .1.... is teth caopomie

Exhibits 1,

Oe a ie oe wh altbuabdibine wedge ow

2. & 3—Memoranda as to dimensions of wells ~.__.--

Kvidenece from case of Andrews ef al. vs. Cone _ .._. -_--. -- eee LE.

Evidenes for complainants a re dae REE ae ene ee ee eee

Festinony of ZAcharian Omit: oo. ncaa <n ewe --

i iia sist dene gos Kee

ee eg ae

Evidence for defendant -.---- AT) ENON oR EE i On

Testimony of Aleert ©. Mow. .... nce cae oon -s se

Commer Beoen ........ ... ...... ~~ ee ass

James Suggett ...---- scliactik: sasahlasien Ghent stati

BR 2 gE aes ee

sR rs I i

i Te his aes wii me Ss

Preliminary stipulation as to omissions in printing record, &c.... --

Supplemental stipulation in regard to printing and addition to record

Original.

5262

5450

5466

5472

5478

5905

5909

IX

Print.

1947

1971

198]

1984

1995

2006

2010

POLS

2017

2018

2036

2037

2037

2037

2037

2045

2049

2051

2051

2067

2075

2102

2107

2114

2145

2144

.

‘we

we

—.

LR IE ES COTM AE ONT i PF RIS SW NE ~ ; eer ey ens i bros pate Ba I ae, Poy

ess Fa = 2 . :

>

WILLIAM D. ANDREWS ET AL. VS. GEORGE HOVEY. 1

1-3 In the Circuit Court of the United States for the District of

Iowa. In Equity.

To the honorable the Judges of the circuit court of the United States

for the eighth judicial circuit within and for the district of Lowa:

William D. Andrews and George H. Andrews, doing business in

the city of New York, in the State of New York ; Nelson W. Green,

doing business in Springfield, in the State of Massachusetts, and

Noah J. Parsons, residing and doing business in Cedar Rapids, in

the State of Iowa, bring this their bill of complaint against George

Hovey, residing in the county of Buchanan and in the district of lowa

aforesaid ; and thereupon your orators complain and say, the said

William D. Andrews and George H. Andrews and Noah. J.

4 Parsons, on information and belief—

That said Green was the original and first inventor of a

new and useful improvement in wells, fully described in the letters

patent hereinafter mentioned, and which had not been known or

used before his said invention, and which, at the time of his appli-

cation for a patent, as hereinafter mentioned, had not been for more

than two years in public use or on sale with his consent or allow-

ance.

And your orators,on information and belief, further show unto

your honors that said Green, being so as aforesaid the first inventor

and discoverer of said improvement, and being also a citizen of the

United States, did, on the 14th day of January, 1868, upon due

application therefor, obtain letters patent of the United States

for said invention in due form of law, under the seal of-the

Patent Office of the United States, signed by the Secretary of

the Interior and countersigned by the Commissioner of Patents of

the United States, bearing date the day and year last aforesaid,

whereby there was granted and secured to said Green, his heirs, ad-

ministrators, or assigns, or intended so to be, for the term of seven-

teen years from and after the date of said letters patent, the full and

exclusive right and liberty of making, constructing, using, and

vending to others to be used, the said invention and improvement

as set forth in said letters patent, which are now remaining on

record in the Patent Office of the United States, and by virtue

whereof said Green became and was the sole owner of all the

6 rights and privileges granted and secured, or intended to be

granted and secured, in and by said letters patent.

And your orators further show unto your honors that said Green,

having for good and lawful cause surrendered said letters patent to

the Commissioner of Patents, and having made due application

therefor, and having in all things complied with the acts of Con-

gress in such case made and provided, did, on the 9th day of May,

1871, obtain new letters patent, being for the same invention, for the

residue of said term, and which were marked “reissue No. 4372,”

and were issued in due form of law, under the seal of the Patent

Office of the United States, signed by the Secretary of the Interior

1—16

1

2 WILLIAM D. ANDREWS ET AL. VS. GEORGE HOVEY.

and countersigned by the Commissioner of Patents, and bear-

7‘ ing date the day and year last aforesaid, as by the said last-

mentioned letters patent or a duly authenticated copy thereof

ready in court to be produced will more fully and at large appear.

And your orators have ratified and adopted said reissue.

And your orators further show unto your honors that by virtue

of a certain mesne assignment duly executed the said Green did, on

the 3d day of July, 1871, assign and transfer to your orators, Wil-

liam D. Andrews and George H. Andrews, the undivided one-half of

all his, the said Green’s, right, title, and interest in and to the said

invention as secured to him by said letters patent, including certain

rights which he had theretofore excepted and reserved to himself from

sundry mesne assigninents by him to others before made,

8 which said instrument was duly recorded in the Patent Office

of the United States,as by said instrument or a duly authen-

ticated copy thereof and of the certificate of said recording thereto

affixed ready in court to be produced will fully and at large appear.

And your orators further show unto your honors that by virtue

of a mesne assignment duly executed the said William D. Andrews

and George H. Andrews, as the firm of William D. Andrews &

Brother, and the said Green did, on the 15th day of October, 1878,

assign and transfer to your orator, Noah J. Parsons, the undivided

one-twentieth part of their right, title, and interest in and to the

said invention as secured by said letters patent, including all

9 rovalties and damages which have previously accrued and re-

main unpaid in and for the State of Iowa, excepting in the

counties of Polk, Dallas, Iowa, Tama, Woodbury, Monona, Des

Moines, and Cedar, and reserving the exclusive right to dispose of

the same to the United States for military, naval, and cemetery pur-

poses, Which said instrument was duly recorded in the Patent Office

of the United States, as by said instrument or a duly authenticated

copy thereof and of the certificate of said recording thereto affixed

ready in court to be produced will fully and at large appear.

And your orators further show unto yours honors that by virtue

of the said letters patent issued to said Green as aforesaid and of the

mesne assignments, as hereinbefore recited, and by virtue of other

various mesne assignments by, to, and from the said Green

10 ~— and others duly made, executed, and recorded in the Patent

Office of the United States, as by such instruments or duly

authenticated copies thereof and of the certificate of such recording

thereto affixed ready in court to be produced will duly and at large

appear, your orators did by virtue of the premises become and now

are the sole and exclusive owners of said letters patent and inven-

tion, and of all the rights and privileges granted and secured, or

intended to be granted and secured, thereby in and for the county

of Buchanan and district of Iowa.

And that since they became the owners thereof as aforesaid they

have invested and expended large sums of money and have been to

great troublein and about said invention and for the purpose of carry-

ing on the business of constructing said wells and using the same

11 and making the same profitable to themselves and useful to

Sn a he Re e

WILLIAM D. ANDREWS ET AL. VS. GEORGE HOVEY. 3

the public, and that said invention has been and is of great

benefit and advantage, and that wells were constructed and made

according to said invention and sold by said your orators to great

advantage to the public, and that the public have generally ac-

knowledged and acquiesced in the aforesaid rights of your orators;

and your orators believe that they will realize and receive large

gains and profits therefrom if infringements by said defendant and

his confederates shall be prevented.

And your orators further show unto your honors that your orators,

in connection with Orlando Bennet and Platt Conklin, being ha

owners of said reissue letters patent for the county of (Queens,

12 in the State of New York, did, in the month of April, 1872,

file a bill in the circuit court of the United States for the

eastern district of New York against Theodore A. Carman for in-

fringement of said reissue letters patent, and praying for an injunc-

tion and an account; that said Carman appeared in said suit and

filed an answer denying infringement and setting up that your

orator Green was not the first and original inventor of the invention

patented by said reissue letters patent, and alleging that before the

invention thereof by said Green the same had been known to and

used by many persons in different parts of the United States, and

had been described in patents and in many printed publica-

13 tions; that said Green had forfeited his right to a patent by

said invention haying been in public use and on sale for

more than two years before his application for letters patent there-

for; that said Green had abandoned his invention and dedicated it

to the public, and that said reissue letters patent were for an Inven-

tion different fromm that described in said original letters patent, and

were therefore null and void.

That your orators filed a replication to said answer, and a very

large amount of testimony was taken on both sides, the record on

the part of your orators amounting to more than fourteen hundred

printed pages, and that on the part of the defendant amounting to

more than twelve hundred printed pages, the taking of said

14 testimony having been commenced in June, 1872, and con-

cluded in November, 1873

That said testimony was taken at many different places, among

them at Detroit, Mich.; Chicago, Il].; Amherst, Mass.; Middletown,

Ct., and at many cities and vill: ages in the central and western parts

of the State of New York, as well as in the city of New York, and

witnesses were brought from several adjoining States and the Dis-

trict of Columbia, and that the evidence comprises the testimony of

about one hundred and seventy witnesses.

That said suit was brought to a hearing on pleadings and proofs,

and was elaborately argued by eminent counsel on both sides,

15 the arguments consuming many days in delivery; that said

suit was taken under advisement by the court, which there-

after rendered its decision, giving an elaborate opinion, overruling

all the defendant’s defenses, holding said reissue letters patent valid,

and directing a decree for the complainants in conformity with the

prayer of the bill of complaint for an account of profits and dam

4 WILLIAM D. ANDREWS ET AL, VS. GEORGE HOVEY.

ages, which decree was duly entered, a copy of which is hereto an-

nexed, marked Exhibit A, and directing a perpetual injunction,

which was duly issued, a copy of which is hereto annexed, marked

Exhibit B, as by the record and proceedings in said suit now re-

maining in the office of the clerk of said court or a duly authenti-

‘ated copy thereof will appear.

16 And your orators further show unto your honors that since

said adjudication numerous injunctions have been issued by

said court against persons using said invention in infringement of

said reissue letters patent. |

And your orators further show unto your honors that your ora-

tors, William D. Andrews, George H. Andrews, and Nelson W.

Green, being the owners of said reissue letters patent for the county

of Hennepin, in the State of Minnesota, did, in the months of No-

vember and December, 1876, and January, 1877, file separate bills

in the circuit court of the United States for the district of Minnesota

against O. E. Spear, Joel B. Bassett, Sweet W. Case, Stephen Pratt,

Robert L. Pratt, William L. Nichols, Anthony Kelly, George

17 B. Wright, and De Witt R. Wagner for infringement of said

reissue letters patent and praying for injunction and account;

that the several defendants appeared in the said suits by the same

counsel and each filed the same answer denying the infringement

and setting up that the reissue letters patent were false, fraudulent,

and untrue and not for the same invention as patented and claimed

in the original letters patent, and therefore void and of no effect ;

that your orator Green was not the first or original inventor of the

invention patented by said reissue letters patent, and alleging that

long prior to the invention thereof by said Green the same

18 had been described in certain letters patent, applications for

letters patent, and in many books, pamphlets, and publica-

tions, and that it had been long known and used by many persons

in different parts of the United States; that said Greene had _ for-

feited his right to a patent by reason of the invention having been

in public use and on sale for more than two years before his appli-

cation for letters patent therefor; that any letters patent issued to

Greene were obtained by fraud and deceit, and that 7f he had aban-

doned the invention and dedicated it to the use of the public.

That your orators filed replications to said answers, and the court

permitted the several defendants to unite their defenses, the

19 evidence taken in one case to be used in all; that the suit

against George B. Wright was selected for trial and a large

amount of testimony was taken, nearly sixty witnesses having

been examined, in five different States, during the months of

August, September, October, November, and December, 1877; that

suid suit was brought to a hearing on pleadings and proofs, the en-

tire evidence in the previous suit against Theodore A. Carman was

submitted to the court, and the case thoroughly argued by able coun-

sel in December, 1877; that the said suit was taken under advise-

ment by the court, which thereafter rendered its decision, overruling

all the defendant’s defenses, holding said reissue letters patent valid,

BT RINT BEY Ne ne eg

ws’

Pad

WILLIAM D. ANDREWS ET AL. VS. GEORGE HOVEY.

and directing a decree for complainants, in conformity with

20 the prayer of the bill of complaint, for an account of profits

‘and damages, which decree was duly entered in each of the

several cases, a copy of which is hereto annexed, marked Exhibit C,

and directing a perpetual injunction, which was duly issued, a copy

of which is hereto annexed, marked Exhibit D, as by the records

and proceedings in said suits now remaining in the office of the clerk

of said court or a duly authenticated copy thereof will appear.

And your orators further show unto your honors that since said

adjudication by the circuit court of the United States for the district

of Minnesota large numbers of injunctions have been issued by said

court against persons using said invention in infringement of

21 said reissue letters patent, yet the said defendant, well knowing

the premises and the rights secured to your orators aforesaid,

but contriving to injure your orators and to deprive them of the

benefits and advantages which might and otherwise would accrue

unto them from said invention after the reissuing of said letters

patent as aforesaid, and your orators becoming the owners of said

reissue letters patents in, to, and for the county of Buchanan and

district of Iowa, and before the commencement of this suit, did, as

your orators are informed and_ believe, within the said district of

Iowa, without the license or allowance and against the will of your

orators, and in violation of their rights, and in infringements of the

aforesaid letters patent, unlawfully and wrongfully and in

22 defiance of the rights of your orators make, sell, and use wells

embracing said invention in the counties of Buchanan, Lima,

Johnson, Muscatine, Wapello, Black Hawk,and other places to your

orators unknown, all in district of Iowa aforesaid, and that he still

continues so to do, and that he is threatening to make, sell, and

use the aforesaid wells in larger quantities and to supply the market

therewith, and to continue to use the wells as constructed by him,

all in defiance of the rights acquired by and secured to your orators

as aforesaid, and to their great and irreparable loss and injury, and

by which they have been and still are being deprived of great gains

and profits which they might and otherwise would have obtained,

but which have been received and enjoyed and are being re-

23 ceived and enjoyed by the said defendant by and threugh his

aforesaid unlawful acts and doings.

And your orators further show unto your honors, on information

and belief, that said defendant has one or more of said wells and is

now making the same and has made and realized large profits and

advantages therefrom, but to what extent and how much exactly

your orators do not know and pray a discovery thereof; and your

orators say that the use of said invention by said defendant and his

preparation for and avowed determination to continue the same and

his other aforesaid unlawful acts in disregard and defiance of the

rights of your orators have the effect to encourage and induce others

to venture to infringe said patent in disregard of your orators’

rights. :

24 And your orators further show unto your honors that they

have caused notice to be given to said defendant of said in-

6 WILLIAM D. ANDREWS ET AL. VS. GEORGE HOVEY.

fringements and of the rights of your orators in the premises, but

he has disregarded said notice and still continue- to make, sell, and

use the same.

And your orators pray that said defendant, George Hovey, and

his servants, agents, attorneys, and workmen and each and every of

them may be restrained and enjoined by the order and injunction

of this honorable court from directly or indirectly making, con-

structing, using, vending, delivering, working, or putting into prac-

tice, operation, or use or In anywise counterfeiting or imitating the

said invention or any part thereof or any wells made in ac-

25 cordance therewith or like or similar to those which he has

heretofore made or used, and that the said defendant may be

decreed to pay the costs of this suit,and that your orators may have

such further relief or such other relief as to this honorable court

shall seem meet and as shall be agreeable to equity.

May it please your honors to grant unto your orators a provisional

or preliminary injunction, issuing out of and under the seal of this

honorable court, commanding, enjoining, and restraining the said

defendant, George Hovey, and. his servants, agents, attorneys, and

workmen, and each and every of them, as is hereinbefore in that

behalf prayed. :

And forasmuch as your orators can have no adequate re-

26 lief except in this court, to the end, therefore, that the said

defendant may, if he can, show why your orators should not

have the relief hereby prayed,and may,upon his corporal oath and

according to his best and utmost knowledge, remembrance, informa-

tion, and belief, full, true, direct, and perfect answers make to the

premises and to all the several matters hereinbefore stated and

charged as fully and particularly as if severally and separately in-

terrogated as to each and every of such matters, and that he may

be compelled to account for and pay to your orators the profits by

him acquired and the damages suffered by your orators from the

aforesaid unlawful acts, and that the court may assess said profits

and damages and may increase the damages to a sum not

27 exceeding three times the amount thereof :

May it please your honors to grant unto orators the writ of

subpoena, issuing out of and under the seal of this honorable court,

directed to the said defendant, commanding him by a certain day

and under a certain penalty to be and appear in this honorable

court, then and there to answer the premises and to stand to and

abide such order and decree as may be made against him.

And your orators will ever pray, ete.

(Signed) WM. D. ANDREWS &«& BROS.

NELSON W. GREEN.

NOAH J. PARSONS,

By N. J. PARSONS.

(Sg'd) RICKEL, WEST & EASTMAN,

Solicitors for C omplainants.

(S'o’d) HENRY RICKEL, Of Counsel.

do

c™

bo

c™

WILLIAM D. ANDREWS ET AL. VS. GEORGE HOVEY.

28 UniTEpD STATES OF AMERICA, |

nee 88:

District of Iowa, J

On this 9th day of Dec., 1878, before me-appeared Noah J. Par-

sons, to me personally known, and who, being by me duly sworn,

did dispose and say that he is one of the complainants above named;

that he has read the foregoing bill in equity and knows the contents

thereof, and that the same is true of his own knowledge, except as to

matters therein stated on information and belief, and as to those

matters he believes it to be true.

(Signed) A. N. EASTMAN,

U. S. Com. for the Dist. of Iowa.

29 At a stated term of the circuit court of the United States of

America in the eastern district of New York, in the second

cireuit, held at the court-rooms, in the city of Brooklyn, on the

second day of May, in the year of our Lord one thousand eight

hundred and seventy-six.

Present: Hon. Charles L. Benedict, district judge.

Exuipit A.

Circuit Court of the United States for the Eastern District of New

York. In Equity.

WiiitiamM D. ANDREWs, GEORGE H. ANDREWs, NELSON W. GREEN,

ORLANDO BENNET, and PLAtrr CoNKLIN

vs.

THEODORE A. CARMAN.

30 This cause having come on to be heard upon the bill of

complaint herein, the answer thereto of the defendant, the

replication of the complainants to such answer, and the proof, oral,

documentary, and written, taken and filed in said cause, and haying

been argued at length by counsel for the respective parties:

Now, therefore, on consideration thereof, it is ordered, adjudged,

and decreed, and the court doth hereby order, adjudge, and decree,

as follows, to wit: |

That the reissued letters patent No. 4372 granted to Nelson W.

Green on the 9th day of May, 1571, for improvements in wells,

being the letters patent referred to in the bill of complaint herein,

are good and valid in law.

That the said Nelson W. Green was and is the first and original

_» Inventor and discoverer of the “improvement in wells” de-

31 scribed and claimed in the said letters patent and the specifi-

cations annexed thereto.

That the said William D. Andrews, George H. Andrews, Nelson

W. Green, Orlando Bennet, and Platt Conklin are the exclusive

owners of the said letters patent for the county of Queens, in the

State of New York, within this district.

That the said Theodore A. Carman, the defendant herein, has in-

fringed upon the said letters patent and upon the exclusive rights

of the complainants under the same by the construction and use of

wells, as charged in said bill of complaint.

WILLIAM D. ANDREWS ET AL. VS. GEORGE HOVEY.

And it is further ordered, adjudged, and decreed that the com-

plainants do recover of the defendant the profits, gains, and advan-

tages which the defendant has received or made or which

o2 have in any way arisen or accrued to him from the infringe-

ment of the said reissued letters patent by practising, making,

using, or selling the invention and thing patented, as described and

secured by the said reissued letters patent No. 4372, since the grant

and issue thereof on the 9th day of May, 1871, and also the dam-

ages which the complainants have or may have sustained by reason

of any infringement of said reissued letters patent.

And it is further ordered, adjudged, and decreed that it be referred

to L. Lincoln Benedict, Esq., special master appointed by this court,

to ascertain and take and state and report to the court an account of

the gains, profits, and advantages which the said defendant has re-

ceived or which has accrued to or arisen to him since the 9th

Oo day -of May, 1871, from infringing the aforesaid exclusive

rights of the said complainants by the construction and use

of wells such as are described in the aforesaid reissued letters patent

numbered 4372, and also to compute, assess, ascertain, state, and re-

port the amount of damages which the complainants have sustained

by reason of the said infringements.

And it is further ordered, adjudged, and decreed that the com-

plainants have on such accounting the right to cause an examina-

tion of the said defendant, ore tenus or otherwise, and also the pro-

duction of the books, vouchers, and documents of said defendant,

and that said defendant attend for such purposes before said special

master from time to time within this district as said master shall

direct.

o4 And it is also further ordered, adjudged, and decreed that

a perpetual injunction be issued in this cause against the said

defendant, Theodore A. Carman, restraining him, his agents, attor-

neys, clerks, servants, workmen, and all working or holding under

or through him, from constructing or using wells such as are de-

scribed in the aforesaid reissued letters patent, numbered 43872,

pursuant to the prayer of said bill of complaint.

And it is further ordered, adjudged, and decreed that the com-

plainants do recover of the defendant their costs and charges and

disbursements of this suit, to be taxed.

CHAS. L. BENEDICT.

I certify the foregoing to be a true copy of the original decree en-

tered in the above-entitled action.

B. LINCOLN BENEDICT, Clerk.

7

35 Exursit B.

Unirep STATES OF AMERICA, me

Eastern District of New York, fj ~*

I, B. Lincoln Benedict, clerk of the circuit court of the United

States of America for the eastern district of New York, do hereby

WILLIAM D. ANDREWS ET AL. VS. GEORGE HOVEY.

certify that the writings annexed to this certificate are true copies

of their respective originals on file and remaining of record in my

office.

In testimony whereof I have caused the seal of the said court to

be hereunto affixed, at the city of Brooklyn, in the eastern district

of New York, this thirty-first day of October r, in the year of our

Lord one thousand eight hundred and seventy-six, and of the Inde-

pendence of the said United States the 10Ist.

b. LINCOLN BENEDICT, Clerk.

06 The President of the United States of America to Theodore

A. Carman, his clerks, attorneys, servants, agents, and work-

men, Greeting:

Whereas it has been represented to us, in our circuit court of the

United States for the second circuit and the eastern district of New

York, that reissued letters patent of the United States were issued

and granted in due form of law on the ninth day of May, in the year

of our Lord one thousand eight hundred and seventy-one, to Nelson

W. Green for improvements in wells, said letters patent being known

and distinguished as “ reissue number 4572 ;

And that you, Theodore A. Carman aforesaid, have infringed the

rights secured by the aforesaid letters patent by constructing

and using wells, contrary to the form of the statute in such

vase made and provided :

Now, therefore, we do strictly command and perpetually enjoin

you, the said Theodore A. Carman, your clerks, attorneys, agents,

servants, and workmen, under the pains and penalties which may

fall on you and each of you, that you forthwith desist and refrain

from constructing or using wells such as are described in the said

reissued letters p: atent numbered 4372. —

Witness the Honorable Morrison R. Waite, Chief Justice of the

United States of America, at the city of Brooklyn, this third day of

May, in the year of our Lord one thousand eight hundred and

seventy-six.

[SEAL. ] B. LINCOLN BENEDICT, Clerk, ce.

38 Exnyipir C.

In the Cireuit Court of the United States for the District of Minne-

sota. In Equity.

Wi.LiAM D. ANDREWS, GEORGE H. ANDREws, and Nretson W. GREEN

against

GEORGE Bb. WRIGHT.

This cause came on to be heard at the December term of said

court, A. D. 1887, upon pleadings and proofs, and was argued by

the counsel for the respective parties.

And the court, having considered said pleadings, proofs, and argu-

ments, upon due advisement, it is now hereby ordered, adjudged,

and decreed in this cause as follows

That the reissued letters patent No. 4372, of the United States,

eee to said Nelson W. Green on the 9th day of May, 1871,

—16

10 WILLIAM D. ANDREWS ET AL. VS. GEORGE HOVEY.

ov for improvements in wells, being the letters patent referred

to in the bill of complaint herein, are good and valid in law.

That the said Nelson W. Green was and is the first inventor and

discoverer of the inyention of the improvement in wells described

and claimed in the said letters patent and tne specifications an-

nexed thereto. |

That the complainants, said William D. Andrews, George H. An-

drews, and Nelson W. Green, are the exclusive owners of the said

letters patent for the county of Hennepin, in the State of Minnesota,

within this district, and of all rights of action for infringement

thereof.

That the said defendant herein, George B. Wright, has infringed

upon said letters patent, and upon the exclusive right of the com-

plainants under the same, by the construction or use of wells,

AO as charged in said bill of complaint.

And itis further ordered, adjudged, and decreed that thecom-

plainants do recover of said defendant the profits, gains, and ad-

vantages which the said defendant has received or made or which

have in any way arisen or accrued to him from the infringement

of the said reissued letters patent by practising, making, using, or

selling the invention and thing patented or described and secured

by the said reissued letters patent No. 4372, since the grant and

issue thereof on the 9th day of May, 1871, and also the damages

which the complainants have or may have sustained by reason of

any infringement of said letters patent by said defendant.

And it is further ordered, adjudged, and decreed that it

4] be referred to Horatio E. Mann, Esq., master of this court, to

ascertain and take and state and report to this court an ac-

count of the gains and profits and advantages which the said de-

fendant has received or which has accrued to or arisen to him since

the 9th day of May, 1871, from infringing the aforesaid exclusive

rights of the said complainants by the construction of, dealing in,

using, or selling the said Wells such, as are described in the afore-

said reissued letters patent numbered 4372, and also to compute,

“assess, ascertain, state, and report the amount of damages which the

complainants have sustained by reason of said infringement.

And itis further ordered, adjudged, and decreed that the com-

plainants have on such accounting the right to cause an ex-

42 amination of said defendant, and also the production of the

books, vouchers, and documents of said defendant, and that

said defendant attend for such purposes before said master from

time to time within this district as said master shall direct.

And it is also further ordered, adjudged, and decreed that a_per-

petual injunction be issued in this cause against the said defendant,

George L. Wright, restraining him and his agents, attorneys, clerks,

servants, workmen, and all working or holding under or through

him from constructing, selling, putting down, or using wells such

as are described in the aforesaid reissued letters patent number

4372, pursuant to the prayer of said bill of complaint.

WILLIAM D. ANDREWS ET AL. V8. GEORGE HOVEY. 11

And it is further ordered, adjudged, and decreed that

45 complainants do recover of the defendant their costs and dis-

bursements of this suit to be taxed.

R. R. NELSON, Judge.

STATE OF MINNESOTA, bss:

County of Ramsey,

I, Horatio E. Mann, the clerk of the within-named circuit court

of the United States for the district of Minnesota, as such clerk, do

hereby certify that I have carefully compared the foregoing paper

with the original decree on file and and entered in the within-entitled

-ause and of which, as such clerk, I am the custodian, and that the

same is a true and correct and — transcript of said original decree and

of the whole thereof.

Witness my hand and the seal of this said court this July 10th,

A. D. 1878

H. E. MANN, Clerk.

At Exuipir D,

In the Circuit Court of the United States, District of Minnesota.

The U — States of America to George B. Wright, his agents, attor-

neys, clerks, servants, workingman, | and all working or holding

under or through him, Greeting:

Whereas W iMinen D. dene. George H. Andrews, and Nelson

W. Green have exhibited their bill of complaint before the judges

of our circuit court of the United States for the circuit within and

for the district of Minnesota against you, the said George Bb. Wright,

praying to be relieved touching the infringement by you of their

rights under reissued letters patent of the United States granted and

issued in due form of law on the 9th day of May, 1881, to said Nel-

son W. Green for “improvements in wells,” _ reissued

45 letters patent being known and distinguished as “ reissue

number 4372,” and which was duly assigned to se are now

owned by said William D. Andrews, George H. Andrews, and Nel-

son W. Green ; and whereas bv the decree of said court entered on

the tenth day of July, A. D. 1878, it was ordered adjudged, and de-

creed that a writ of injunction issue under the seal of said court to

restrain you and each and every one of you from constructing, mak-

ing, manufacturing, selling, putting down, or using any well or wells

such as are described in said reissued letters patent No. 4372:

We, therefore, in consideration thereof, do hereby strictly com-

mand and perpetually enjoin you, the said George b. Wright, your

agents, attorneys, clerks, servants, workingmen, and all hold-

46 ing under or through you, under the pains and penalties

which may fall upon you and each of you in case of disobe-

dience, that you forthwith cease, desist, and refrain from construct-

ing, making, manufacturing, selling, putting down, or using, either

by or for yourself or as the seryant or workingman of another,

in violation of said. reissued letters patent, any well or wells such

as are described in said reissued letters patent No. 4372; whereof

you are not to fail at your peril.

12 WILLIAM D. ANDREWS ET AL. VS. GEORGE HOVEY.

Witness the Honorable Morrison R. Waite, Chief Justice of the

Supreme Court of the United States, at St. Paul, this twenty-second

day of July, in the year of our Lord one thousand eight hundred

and seventy-eight.

[Seal U.S. Court.]

LAMPREY & JAMES,

Complainants’ Solicitors.

47 (Endorsed:) 1850. (No. 51.) United States circuit court,

district of Iowa. In equity. William D. Andrews, George

H. Andrews, Nelson W. Green, and Noah J. Parsons vs. George

Hovey. Bill of complaint. Filed Dee. 10, 1878. E. R. Mason,

clerk. Rickel, West & Eastman, complainants’ solicitors, No. 32

Iowa avenue, Cedar Rapids. George Gifford, Milo Goodrich, b. F.

Tracy, complainants’ counsel.

48 And on the 10th day of December, 1878, a subpcena in

chancery was issued out of the clerk’s office in said cause ;

which said subpcena, together with the marshal’s return thereon,

was filed on the 26 day of December, 1878, in the words and figures

following, to wit:

H. E. MANN, Clerk.

49 UnitTep STATES OF AMERICA, \ ss

District of Iowa,

The President of the United States of America to George Hovey;

Greeting:

You are hereby commanded to appear before our judges of our

circuit court of the United States of America for the district of

Iowa, at Des Moines, in said district, on the first Monday in the’

month of January next, it being the 6th day of January, A. D. 1879,

to answer the bill of complaint of William D. Andrews, George H.

Andrews, Nelson W. Green, and Noah J. Parsons, this day filed in

the clerk’s office of said court, in said city of Des Moines, then and

there to receive and abide by such judgment and decree as shall then

or thereafter be made, upon pain of judgment being pro-

50 nounced against you by default.

To the marshal of the district of Iowa to execute.

Witness the Hon. Morrison R. Waite, Chief Justice of the Su-

preme Court of the United States of America, at Des Moines

aforesaid, this 10 day of December, in the year of our Lord one

thousand eight hundred and seventy-eight, and of our Independence

the one hundred and third year.

[L. 8.] (Signed) EDWARD R. MASON, Clerk.

MeMoORANDUM.—The within-named defendant is notified that

unless he enters his appearance in the clerk’s office of said court, at

Des Moines aforesaid, on or before the day to which this writ is

returnable the complaint will be taken against him as confessed,

and a decree entered accordingly.

[L. s. ] (S’g’d) EDWARD R. MASON, Clerk.

RICKEL, WEST & EASTMAN,

Plaintiffs’ Solicitors.

WILLIAM D. ANDREWS ET AL. VS. GEORGE HOVEY. ]

51 United States Circuit Court, District of lowa,ss. In Chancery.

WiLuiAM D. ANpDREWs, GEORGE H. ANDREWs, NELSON W. GREEN,

and NoaH J. PARSONS

vs.

GEORGE Hovey.

To said defendant, George Hovey :

Take notice that the complainants will move this honorable

court on this 27th day of Dec., A. D. 1878, at 10 of the clock in the

forenoon or as soon thereafter as counsel can be heard, at the cham-

bers of the Honorable James M. Love, one of the judges of said

court, at chambers, in the city of Keokuk, in said district, that a

writ of injunction issue against you, the said defendant,

52 George Hovey, upon the bill of complaint and affidavit on

file with the clerk of said court in the above-entitled cause,

in accordance with the prayer of the said bill of complaint therein.

Yours, «c.,

(Signed) RICKEL, WEST & EASTMAN,

Complainants’ Solicitors.

Dated this 9th day of Dec., A. D. 1878.

I hereby certify that the within is a true copy of the original sub-

peena and of the original notice of application for an injunction in

chancery delivered to me for service.

U. S. Marshal.

I hereby appoint Charies H. Turner my true and lawful deputy

to serve this writ. ee

(S’g’d) J. W. CHAPMAN,

U.S. Marshal.

This suit came into my hands for service on the 10 day of

D3 Dec., 1878, and I served the same on the within-named Geo.

Hovey on the 14th day of Dec., 1878, by leaving with him

a true copy of the same at his usual place of residence in Inde-

pendence, Buchanan Co., Iowa.

: J. W. CHAPMAN,

U.S. Marshal,

(S’g’d) By CHAS. H. TURNER,

Spe. Dep.

(Endorsed .) No. 1850. Eq. Circuit court of U. S., district of

Jowa. William D. Andrews eé al. vs. George Hovey. Chancery

subpeena. Returnable first Monday in January, A. D. 1879. Filed

Dec. 26, 1878. E. R. Mason, clerk. Rickel, West & Eastman, com-

plainants’ solicitors, 82 Iowa avenue, Cedar Rapids, Iowa.

14 WILLIAM D. ANDREWS ET AL. VS. GEORGE HOVEY.

54 And on the 6 day of January, 1879, the complainants, by

Rickel, West & Eastman, their solicitors, & filean amendment

to their bill in said cause in the words and figures following, to wit:

55 In the United States Cireuit Court, District, of Iowa. In

Equity.

W. D. ANpreEws, Gro. H. ANDREws, Netson W. GREEN, & Noau J.

PARSONS

US.

GEORGE Hovey.

To the honorable judges of the circuit court of the United States for

the eighth judicial circuit, within and for the district of Iowa:

Comes now the complainants in the above-entitled cause and

amends their bill of complaint as follows:

By inserting after the words “ in the State of New York,” in the

second line thereof, the words “ and being citizens of the said State

of New York;”

By inserting after the words “ State of Massachusetts, ” in

56 the second line, the following words: “And being a citizen of

said State of M: assachusetts ; ’

Inserting after the word “ Iowa,” in the 3rd line of said bill, the

following words: “And being a citizen of the said State of Iowa.”

And — addition to the allegation that said defendant, George

Hovey, is a resident of buchanan county, Iowa, complainants allege

that said defendant, George Hovey, is a citizen of the said State of

lowa.

And complainants further aver and charge that parties above

named were citizens of the States as above stated at the time of the

commencement of this action and the filing — the bill of complaint

herein.

(Signed) W. D. ANDREWS & BRO.

“NELSON W. GREEN.

NOAH J. PARSONS,

By NOAH J. PARSONS.

(S'e’d) RICKEL, WEST & EASTMAN,

C seer pen Solicitors.

(S’e’d) HENRY RICKEL, Of Counsel.

UnITED STATES OF AMERICA,

District of Iowa, has.

On |this 4th day of January, A. D. 1879, before me appeared Noah

J. Parsons, to me personally known to be such person, and who,

being by me duly sworn, did depose and say that he is one of

complainants above named; that he has read the foregoing amend-

ment to complainants’ bill of complaint and knows the contents

thereof, and that the same is true of his own knowledge.

(Signed ) A. N. EASTMAN,

United States Commissioner in and for the District of Towa.

WILLIAM D. ANDREWS ET AL. VS. GEORGE HOVEY. 15

58-71 (Endorsed:) In the United States circuit court. W. D.

Audrews et al. vs. Geo. Hovey.. Amendment to complainants’

bill. Filed Jan. 6, 1879. E. R. Mason, clerk. Rickel, West &

Eastman, compl’t- solicitors, Xe. |

72 And on the 13th day of May, 1879, the defendant, by Lake &

Harmon, his solicitors, filed his answer to complainant’s bill

in the words & figures following, to wit:

73 In the Circuit Court of the United States, District of Iowa. In

Equity.

WILLIAM D. ANDREWs eé al.

vs. No. 1350.

GEORGE Hovey.

The answer of George Hovey to the bill of complaint of William D.

Andrews, George H. Andrews, Nelson W. Green, and Noah J. Par-

sons, complainants.

The defendant, now and at all times hereafter reserving to him-

self all benefit and advantage of exceptions which can or may be

taken to the many errors, uncertainties, and imperfections in the

said complainants’ bill of complaint contained, for answer thereto

or unto so much and such parts thereof as he is advised are material

for him to answer with —:

74 He denies that said Green was the original or first inventor

of any new or useful improvements in wells, whether as set forth

in any letters patent or otherwise, but he avers that identically and in

substance the same pretended improvement, as hereinafter more ex-

pressly stated, had been known and used vy many persons other

than said Green long before the date of his pretended invention, and

was by them known and used and was on sale and was in publie

use more than two years before the time of his pretended applica-

tion for letters patent.

And this defendant is not advised or informed, save by the said

bill of complaint, and cannot set forth as to his belief or other-

79 wise, whether the said Green was ever a citizen of the United

States or whether he ever made application for any letters

patent whatever, or whether any letters patent were ever granted or

issued to him, whether as stated in said bill of complaint or other-

wise, or as to whether he ever surrendered such letters patent or ever

made any application for or obtained new letters patent in the prem-

ises, or whether the same were ever granted or issued, or as to

whether said Green ever executed any assignment of any interest or

right in or to any letters patent to any person or persons, or as to

whether any such assignment, if it ever was made, was ever recorded

in the Patent Office, or as to whether the complainants ever,

76 by the means stated in their bill of complaint or otherwise,

became or ever were the owners of any letters patent or in-

vention, rights or privileges, in and for the county of Buchanan,

Iowa, or elsewhere, or as to whether they have ever invested any

sum of money in the;premises or been to any trouble, or as — whether

16 WILLIAM D. ANDREWS ET AL. VS. GEORGE HOVEY.

said pretended invention is of any benefit or advantage, or as to

whether any wells were ever constructed or made according to said

invention, save as in this answer stated; they deny that the public

have ever acknowledged or acquiesced in any right asserted by the

complainants in the premises.

And this said defendant is not advised or informed, save by the

said bill of complaint, and cannot set forth as to his belief or

77 otherwise whether any such suits as those averred in the bill

of complaint were ever commenced in the circuit court of the

United States for the eastern district of New York or the district

of Minnesota, or whether any of the alleged proceedings were ever

had in those courts, or as to whether any such adjudication or

decree as that alleged was ever given, rendered, or had therein.

And the said defendant, further answering, denies that he ever

at any place, whether as alleged in the said bill of complaint or

otherwise, in violation of any right of the complainants or in in-

fringement of any letters patent, wrongfully or unlawfully or in

defiance of the rights of any person constructed or used any wells

or threatens to construct or use any wells, or that he has ever

78 done or intends to do any act whatever in violation of any

right of the complainants, or that he has ever caused them

any loss or injury or deprived them of any gains or profits, or that

any act which he has ever done or threatened has any effect to

encourage or induce any person to infringe on said pretended patent

or upon any rights of the said complainants, or that he has ever

been notified of any infringement.

And he denies severally and specifically each and every aver-

ment contained in the said bill of complaint save as in this answer

admitted, qualified, explained, or otherwise denied.

And the defendant, further answering, denies that thesaid Nelson

N. Green was the first or original inventor of the pretended

79 invention in said bill of complaint described or any or either

of them, or of any substantial, material, or meritorious com-

ponent thereof, but, on the contrary, he avers and says that the al-

leged invention and all the substantial, material, and meritorious

eomponents thereof were, long prior to any alleged invention thereof

by said Green, described in certain letters patent and in certain appli-

cations for letters patent and in certain books, pamphlets, and pub-

lications hereinafter particularly described, and were known and

used by divers persons in this country and elsewhere, to wit:

The application for letters patent of the United States filed in

Patent Office of the United States on the 16th day of May, A. D.

. 1865, by 8S. R. & W.S. Hunter, of the town of Cortland, in

80 the State of New York. |

The application of James Suggett, of the town of Cortland,

in the State of New York, for letters patent of the United States filed

in the office of the Commissioner of Patents on the 29th day of

March, A. D. 1864.

The application for letters patent of the United States made and

filed by Byron Mudge, of said Cortland, in the office of said Com-

missioner on the 24th day of October, A. D. 1865.

“¢

“*¢

WILLIAM D. ANDREWS ET AL. VS. GEORGE HOVEY. 17

Letters patent of the United States granted and issued to James

Suggett aforesaid and dated March 2¥, A. D. 1864.

Letters patent of the United States granted and issued to Byron

Mudge, dated October 25th, 1865.

Letters patent of the United States granted and issued to

81 S. R. and W.S. Hunter, of said Cortland, dated May 16th,

1865.

The application of John Chandler, of Coldwater, Michigan, for

letters patent of the United States and such letters patent granted

to him dated September 4, A. D. 1866.

The application of H. Ri and M. T. Barnes, of Watkins, New York,

for letters patent of the United States and such letters granted to

them dated August 15, A. D. 1865.

Also that the pretended invention, precess, device, and apparatus

and each thereof substantially the saine in construction and opera-

tion as that asserted in said bill of complaint to be included in,

covered, and protected by, said letters patent to said Green were

made and were in public use for more than two years prior

§2 to any application by said Green for said original letters pat-

ent and more than two years prior to the date of said pre-

tended invention, at Naperville, in the State of Illinois, as was

known by James J. Hunt and A. McS. 8. Ridler, of that place, and

by others, due notice of whose names and places of residence will be

given to the complainants or their counsel.

Also to Albert L. Rollo, who resides at Vineland, in the State of

New Jersey, who had knowledge of the same at Cortland, in the

State of New York, and in the towns adjoining said Cortland; also

James Suggett, Stephen R. Hunter, Richard Lambert, James C. Car-

michal, M. M. Waters, Howard Baker, A. P. Smith, and Henry

Baker, who reside in said Cortland, and who severally had the

83 same knowledge of the same at said Cortland and im the

towns adjoining.

Also to H. W. Smith, who resides at Pontiac, Illinois, who knew

of such use and actually made such use in Warren county, Ohio, in

the year 1857.

Also to Duane A. Tinckelpaugh, who resides in Minneapolis, Min-

nesota, and knew of and saw such use in October or November, 1859,

at Fairbury, in the State of Illinois, near a mill owned by one

McDowell.

Also to J. Phillips, Stephen Barnes, R. B. Amesbury, H. M. Gillett,

John Zimmerman, H. Remington, all residents of Fairbury, who

have the same knowledge as Tinckelpaugh, and particular to said

Amesbury, who saw such use- at said Fairbury, in 1859, upon the

premises occupied as a store by the firm of Amesbury, Pogne

84 & Thomas.

Also at Piper City (then called Brenton), in the Siate of

Illinois, in 1856, as was known to Michael Fitzmorris, now residing

at Chatsworth, Illinois, and to John R. Lewis, Michenson, and

Atwood, who reside at said Piper City, and to many others,

whose names and places of residence will be furnished to the com-

plainants or their counsel.

ew a

xcpmitenesamgecmesetnee th enrmemte

- aoe came te ata

. —— coe ares 3

a a eT SR ve ees

18 WILLIAM D. ANDREWS ET AL. VS. GEORGE HOVEY.

Also L. Meeker and John Grimes, of Farmington, Minnesota, who

knew of its use at Saratoga, New York, in 1855 and 1859.

Also Chas. Seward, of Farmington, Minn., who knew of its use

in Hillsboro, Illinois, in 1850 to 1857.

‘ Also to George Parish and Richards, who reside at

S5 Chatham, Iowa, and knew of its use in Victor, New York,

before 1855.

' Also John H. Edwards, of Stillwater, Minn., who knew of its use in

Manlius, [l., in 1859 and 1860.

Also to C. C. Linville, who new resides at Decorah, Iowa, who

kuew of such use in the State of Kansas in 1860.

Also to A. J. Parker, who resides at Ithaca, in the State of New

York, and to George Geddes and Spencer, of Syracuse, New

York, and who had knowledge of the same at Ithaca, Syracuse, and

Salina, in said State.

Also to J. P. Reeves and Wm. Dixon, of Minneapolis, Minn., —

knew of its use in said Minneapolis in 1860.

Also to William Clark, now residing at Minneapolis, Minn., who

knew of its use in Johnson county, Iowa, in 1858.

Also to J. M. Underwood, who resides at Minneapolis, Minn.,

S6 and who knew of its use at Kennebec, Maine, in 1859.

Also to E. W. Purdy, who resides at Independence, Iowa,

who put in these wells at Milwaukee, Wisconsin, in 1849 and 1850.

Also to O. T. Whitney, who resides in Minneapolis, Minnesota,

who knew of — saw such use- on the State fair grounds at Elmira,

New York, in the years 1859 and 1860.

Also to Mr. Donelly, who resides at said Minneapolis, who knew

of and saw such use- at the place of Wm. R.Wadsworth at Constable-

ville, Lewis county, New York, in or about the vear 1860, and also

upon the lot.of Mr. Sidle at the same place and time.

Also to John W. Webster, who resides at said Minneapolis, who

knew of and saw such use- in August, A. D. 1854, at the mouth of

Calumet creek, near Chicago, I]linois.

87 Also to Frank Goodwin, who resides at said Minneapolis,

who knew of and saw such use- in 1856 or in 1857 in repeated

instances in the town of Harbor Creek, Erie county, Pennsylvania.

Also to J. O. Miline, who resides at said Minneapolis, who knew of

and saw such use- in the summer or fall of 1856 at his & his father’s

place of residence in the town of Macedon, Wayne Co., N. Y.

Also J. M. Griffiths, who resides at said Minneapolis, who knew of

and saw such use- at the place of residence or business of Nat. Shary

at Montgomery City, Missouri, in 1860 or 1861.

That the knowledge of each of the aforesaid persons was of the

pretended invention, process, device, and apparatus and of each

thereof and of the actual use of the same at the times and places

stated more than two years prior to the time when said Green inade

his first application for such patent. 7

This defendant states further that in the month of April

88 or May, 1861, there was put in at Independence, Iowa, a well

nade by driving down into the earth an iron tube shod with

an iron or steel point, with perforations in the tube above the point,

~*~ oo ul well

~ oo vs el og 4

WILLIAM vv», ANDREWS ET AL. VS. GEORGE HOVEY. 19

without a screen over the same, and sections of tubing attached as

driven down until it was projected some feet into the water, and to

the top of this tube was attached an iron pump, and the same was

used for pumping water through, and was know and publicly used

at such place from April or May, 1861, until some time in July or

August, 1861, and was known to and used by the following-named

persons, whose post-office address is Independence, Iowa,

89 to wit: Thomas Sherwood, Frank Trask, Perry Munson,

Thomas H. Tyson, 8. P. McEwen, Dr. George Warne, S. S.

Allen, S. M. Marquette, A. F. Williams, C. B. Kandy, George B.

Warne, T. J. Marinus, D. 8. Deering, George Hovey, J.J. Travis,

J. M. King, W. Wallace, A. H. Fonda, M. b. Jones, J. A. Davis, E.

W. Purdy.

And said well was also known to the following-named persons,

whose post-office address is Jessup, Iowa: C. T. Kimball, John

Ganier.

And to the following, whose post-office address is. Quasqueton,

Towa: b. C. Hale.

And to the following, whose post-office address is Swanton, Lowa:

Ehas 8. Hovey.

And to the following, whose post-office address is Waterloo,

90 Iowa: S. W. Fenstermaker.

And to the following, whose post-office address is Fairbank,

Iowa: William Codling.

This defendant, further answering, states that said invention was

known and used in all its parts as described in said complainants’

bill of complaint and his letters patent long before the pretended

invention claimed to have been made by Nelson W. Green, and was

known to and used by the following-named persons now residing in

Buchanan county, Iowa, in said county, in the spring of 1861: CT.

Kimball, Thomas Sherwood, Frank Trask, Perry Munson, Thomas

H. Tyson, Samuel P. McEwen, Dr. George W arne, 8. 8. Alle en, 5S. M.

Marquette, A. F. Williams, C. B. Kandy, George B. Warne,

91 B. C. Hale, T. J. arenes. John Ganier, D. 8. Deering, George

Hovey, J. J Davis, J. M. King, W. W allace.

And was also known to Elias 8. Hov ey, who now resides at Swan-

ton, Iowa, and that such knowledge and use was open and notorious

a known to the publie at that time and place, and that such use

‘as before the pretended invention by said Green.

And the defendant avers that the alleged invention and all the

substantial, material, and meritorious components thereof were

more than two years before said Green made any application for a

patent and a long time before his alleged inventions described in

certain printed books, pamphlets, and publications as follows,

to wit:

92 In a report of Thomas Spencer, superintendent, and Henry

W. Allen, inspector, of the salt wells at Syracuse and Salina,

in the State of New York, and dated January Sth, A. D. 1842, in

which the material parts of said pretended invention are described.

In a report of said Spencer and Allen concerning said salt wells

and the method of sinking wells at said places, dated January 9,

1841,

20 WILLIAM D. ANDREWS ET AL. VS. GEORGE HOVEY.

In a report made by Richard Wright and James M. Allen, of said

Syracuse, concerning the salt wells “of Salina and Syracuse, New

York.

In a report of the superintendent of the sait wells in said Syra-

cuse, dated January, 1853, on pages 10 and 11, in which the material

parts of said claim’and invention are described.

In a certain book or public ation known as “ McKenzie’s

93 Five Thousand Receipts,” published by James King, Jr., aa

Brother, at Philadelphia, A. D. 1829, and being a republica-

tion from a London edition of the same work, on page 388, in which

all the material parts of said pretended invention are described.

In a certain book known as and called “Un’s Dictionary of Arts

and Manufactures,” published: more than twenty years ago, but in

what year defendant cannot now state, on pages 65, 66, and 67, in

which all the material parts of said pretended invention are de-

scribed.

In volume 35 of a certain work known as “ Ree’s Cyclopedia,”

published in Philadelphia about A. D. 1817, under the title of

“Spring Draining Pump;” also in volume 5 of said work,

O4 under the title of “ Borer in Ru-al Economy,” in each of w hich

volumes all of the material parts of said pretended invention

are described.

Also in a book published in A. D. 1859 or 1860 by authority of

the State of New ones entitled “Transactions of the State Agri-

cultural Society of the State of New York for the Year 1859,” on

page 280, where all the material parts of said pretended invention

are described.

Also in a certain report of Thomas Spencer, of Syracuse, New York,

contained in the annual report of the New York State Agricultural

Society for the year 1843 and published A. D. 1848 or 1844, on pages

8 and 9, in which all the material parts of said pretended invention

are described.

This defendant, further answering, states that said inven-

95 tion, after it was claimed tu have been made in 1861 by the

said Nelson W. Green, at Cortland, in the State of New York,

was by him made and put in use, under his order and direction,

in the said county of Cortland, and was allowed to go into public

use, with his knowledge and consent, and was allowed to remain 1n

such use from October, 1861, until in March, 1866, when be made

his first appearance fora patent, and that the said invention was

used in public in said Cortland and was known to Byron Mudge,

A. P. Smith, James Carmichal, James Suggett, W. S. Hunter, Wil-

liam O. Bonnard, M. M. W aters, Julius A. Graham, Henry Bates,

Henry Mead, Edward Ashdown, Horace Baker, Horato

96 Ballord, Ebinezer Mudge, Ira V. Hicks, James F reeman,

Henry Woodruff, George N. Copeland, and Cornelius Brown,

all of whom knew of such use for more than two years from the

time said invention is claimed to have been made and before the

said Green made any application for a patent.

This defendant, further answering as to the well he has and uses,

and the only well that this defendant ever possessed, owned, used, or

sn hence on Sm eceparere .

STEN ree " OI he BP =

Ta ied arom Be Soe od

WILLIAM D. ANDREWS ET AL. VS. GEORGE HOVEY. 21

in any manner controlled, states that his well was not made in the

manner claimed by said complainants in their bill of complaint, nor

in manner and form like the said wells claimed by said complainants

In any particular. .

This defendant says that he has no well except an open-

97 dug well at his house, in Independence, and ati open-dug

well on his farm, in Perry township, Buchanan Co., Iowa,

with a hole drilled in the rock in the bottom.

That all the wells he owns are open wells. )

This defendant says that he has made some wells since 1871, and

that he makes all his wells by boring down to and into the water ;

then putsin a tube, with large holes in the bottom, without a sere-n ;

attaches a sand pump and pumps out a quantity of fine mud; then

puts in a tube with wire scre-ns over the holes and attaches to that

apump. Thisis his method of making wells. Defendant says that

he never makes wells by driving a rod or instrument into the ground

without removing the earth upwards as it is in boring.

98 And the defendant denies that the said pretended inven-

tion in said bill of complaint described or any material part

thereof was not known or used or had not been on sale or in public

use for more than two years prior to the date of said pretended let-

ters patent or to the date of the application therefor and with the

knowledge and consent of the said Green; but he avers that, if it

shall be held that said Green was the first or original inventor of

said invention or anv substantial or material part thereof, that after

his said invention and before he ever took any measures to obtain a

patent and prior to the date of said patent, and for a date of more

than five years before the date of his pretended application for a

patent, said invention as claimed in said bill of complaint

99 and in said pretended letters patent and the substantial and

material parts thereof were in common, public use, and were

on sale with the knowledge and consent of the said Nelson N. Green,

and that he, with full knowledge of said public use and sale, aban-

doned the said pretended invention, if any he had, and ded‘cated

the same to the use of the public.

And the defendant avers that any letters patent which may have

been issued to said Green in the premises were obtained by fraud

and deceit, and that all and singular the several allegations in the

application, specifications, — claims of or pertaining to said original

and to the surrendered and reissued letters patent were wholly

100 false, fraudulent, and untrue, as the said Green has always

well known,'and denies that the several owners in said origi-

nal letters patent joined in the surrender of said letters patent or in

the application for a reissue of the same; and,likewise, on informa-

tion and belief, denies that said original letters patent were ever

' surrendered to the said Commissioner of Patents, as claimed in said

bill, for good and lawful cause, but, on the contrary, the defendant,

on information and belief, alleges that said reissued patent on which

this complaint is brought was obtained by fraud and for the fraudu-

lent purpose of enabling the said N. W.Green, complainant, and the

other owners of said letters patent to include in said reissued letters

Lr IN etree

ho

bo

WILLIAM D. ANDREWS ET AL. VS. GEORGE HOVEY.

patent more and other matters and things than those of which

101 he was or claimed to be the first or original inventor and more

than he or the said complainants were entitled to include in

lis said original letters patent and things and inventions of which

he, the said N. W. Green, was not, at the time of his said original

patent or his said application therefor, the first and original inventor,

and that said reissued letters patent, on which this suit is brought,

does include, describe, and contain and claims to have patented

therein inventions and things of which the said complainant, the

said Nelson W. Green, was not the first and original inventor; and,

further, that, upon the face of said letters patent, the invention therein

patented appears to be different from the invention patented

1014 and claimed in said original letters patent, and that the same

are therefore void and of no effect.

And the defendant therefore says, on information and belief, that

said reissued letters patent on which this suit is brought were ob-

tained by the said Nelson W. Green by false and fraudulent repre-

sentations and suggestions to the Commissioner of Patents, and that

said patent is therefore void.

This defendant, further answering, says that the well as invented

and patented by the said Nelson W. Green, and as described by him

in his said letters patent and the specification thereto annexed and

also to the reissue of the satne, will not work and make a well in the

soil as it is in Iowa.

1013 That in no part of the premises occupied by him, as this

— defendant is informed and believes, would such a well be of

any use or benefit to this defendant.

This defendant says that by reason of the imperfections in the

construction of said wells and the manner in which the said Green

describes them they will not succeed as wells in the soil of Iowa, but

are wholiy and totally a failure by reason of the accumulation of

fine particles of matter in the tube.

This defendant further avers, on information and belief, that.some

time in the years 1871 and 1872 Elias 8. Hovey and Elijah A.

Ifovey did discover and invent a method or process by which wells

3 could be made in the soil of Iowa.

102 That some time in 1872 the said Elias S. Hovey procured

from the Commissioner of Patents, at the office of said .Com-

missioner, at Washington, in the District of Columbia, letters patent

bearing date on the 20th day of F:bruary, 1872, and numbered

123,908, and that said process is entirely independent from and dif-

ferent than the process pretended to have been invented by said

Nelson W. Green, and is not any infringement on the rights or

claims of the complainants herein, which letters patent or a duly

cerlified copy thereof this defendant is ready to exhibit to the court

ind to present the same for Inspection at such time or times as may

by the honorable the judges of this court be required.

. And this defendant further avers and states to this court that

103) by means of the removal of the earth upwards out of the well

| pit as described in said letters patent issued to the said Elias

S. Hovey, No. 125,903, as stated in said letters patent and the speci-

.

e

—-:

—_—

WILLIAM D. ANDREWS ET AL. VS. GEORGE HOVEY. 95

fications accompanying the same, the said process invented by the

said Hovey will and does make a good and useful well in the soil

as it is in the State of Iowa and especially in the land occupied by

this defendant, whereas a well made as stated and described in the

process as claimed to have been invented by the said Nelson W.

Green and as set out in his letters patent reissue No. 4872 and the

specifications accompanying the same a well could not be success-

fully made in the soil of the premises occupied by this defend-

ant.

104 This defendant says that he is the owner of the right to

mnake wells by the process patented to Elias 8. Hovey as set

out in his patent No. 123,908 for the State of Iowa; that he makes

all the wells he has ever made by that process; that he bores to

water and uses the Hovey process for the purpose of cleaning out the

well pit; that he has never made a well according to Green’s patent,

except for experiment.

And this defendant denies all and all manner of unlawful com bi-

nations and confederacy wherewith he is by the said bill charged,

without this, that there is any other matter, cause, or thing in the

said complainants’ said bill of complaint contained material or

necessary for this defendant to make answer unto and not

105 herein and hereby well and sufficiently answered, confessed,

traversed, and avoided and denied is not true to the knowl-

edge and belief of this defendant; all which matters and things this

defendant is ready and willing to aver, maintain, and prove as this

honorable court shall direct, and prays to be hence dismissed with

his reasonable costs and charges in this behalf most wrongfully sus-

tained.

(S’g’d) LAKE & HARMON, ..

Solicitors and of Counsel for Defendant.

District oF Iowa, ss:

I, Geo. Hovey, the above-named defendant, having been duly

sworn, deposes that what is contained in the foregoing answer,

106 so far as concerns my own act and deed, is true to my own

knowledge, and that what relates to the act and deed of any

other person or persons I believe to be true.

(Signed) GEO. HOVEY.

Subscribed and sworn to before me this 24 day of April, A. D.

1879, by Geo. Hovey.

[SEAL. | JED. LAKE,

Notary Public, Buchanan County, Iowa.

(Endorsed :) 1850. United States circuit court, district of Iowa.

In equity. William D. Andrews e al. vs. Geo. Hovey. Filed May

13, 1879. E. R. Mason, clerk. Lake & Harmon, solicitors for de-

fendant, Independence, Iowa.

WILLIAM D. ANDREWS ET AL. VS. GEORGE HOVEY.

107 And on the 26th day of May, 1879, the complainants, by

their solicitors, filed in said cause their replication to defend-

ant’s answer in the words and figures following, to wit:

108 Replication.

In the Circuit Court of the U. S., District of Iowa.

W. D. ANpDREws AND Bro. e¢ al. vs. GEORGE Hovey, Defendant.

‘The replication of W. D. Andrews & Bro. et al., complainants, to the

answer of George Hovey, defendant.

These repliants, saving and reserving unto themselves — and at

-all times hereafter all and all manner of benefits and advantages of

exceptions which may be had or taken to the manifold insufficiencies

of the said answer, for replication thereunto say that they will

109 ~=aver, maintain, and prove their said bill of complaint to be

, true, certain, and sufficient in law to be answered unto, and

that the said answer of said defendant is uncertain, untrue, and in-

‘cufficient to be replied unto by these repliants, without this, and any

‘other matter or thing in said answer whatsoever contained material

or effectual in the law to be replied unto and not herein and hereby

well and sufficiently replied unto, confessed or avoided, traversed or

denied, is true; all which matters and things these repliants are and

will be ready to aver, maintain, and prove as this honorable court

shall direct, and humbly pray as in and by their said bill they have

already prayed.

(Signed) RICKEL, WEST & EASTMAN,

Complainants’ Soltcitors.

110-118 (Endorsed :) W. D. Andrews & Bro. e¢ al. vs. George

Hovey. Replication of complainants. Filed May 26,

1879. KE. R. Mason, clerk. Rickel, West & Eastman, complainants’

solicitors. |

119 And on the 2 day of January, 1880, in the record of the

proceedings in said court, is an entry in said cause in the

words and figures following, to wit:

120-122 United States Circuit Court, District of Jowa. October

Term, 1879. Friday, January 2, 1880.

Wn. D. ANDREws et al.

US. Eq. No. 1350.

GEORGE Hovey.

DECEMBER 30, 1879.

Leave granted, by consent of counsel, to amend answer.

(Signed) J. M. LOVE, Judge.

...

a~

WILLIAM D. ANDREWS ET AL. VS. GEORGE HOVEY. 95

123 And on the Ist day of March, 1880, the defendant, by his

solicitors, filed in said court a motion for leave to file amend-

ment to his answer in the words & figures following, to wit:

124 Motion.

UNITED STATES OF AMERICA:

In the Circuit Court in and for the District of Iowa. In Equity.

WitiiamM D. ANDREWS, GEORGE H. ANDREWs, et al.

vs.

GEORGE Hovey.

Now comes the responcent in the above-entitled cause, George

Hovey,and submits to the court the annexed amendment to his an-

swer herein and asks leave of court to file the same in this cause.

The defendant states that the citations of the printed publications,

as stated in this amendment, are made in the original answer, to

wit:

The citation to Reese Cyclopedia is to a different edition, but

125 is the same work, only the edition to which we have been

able to get access was published in 1819 instead of 1817, as

stated in the edition cited in the original answer. The reference

made to Mackinzie’s 5,000 Receipts in the amendment is one pub-

lished in 1829, on page 500, and is the one to which we can get ac-

cess, while this one, cited in the original answer, was published in

1829 by J. King, on page 388.

Wherefor- this defendant says that the amendment does not in

any manner increase the proof necessary to be made by the com-

plainant- and does not change the nature of the answer, aud asks

that it may be filed without ‘costs or terms.

(Signed) LAKE & HARMON,

| Solicitors for Deft.

The solicitors ask that they may file the same amendment

126 ___—to all the cases tried of this nature in which they appear for

the defendants. |

(Signed) LAKE & HARMON,

Solicitors for Numerous Def’ts.

District oF Iowa:

The application for leave to file the foregoing amendment in the

case specified above and cases of the same nature coming on for

hearing this day at chambers, Lake & Harmon being present for

the defendants and Rickel, West & Eastman for the complainants,

and the complainants’ counsel w aiving all objections to said motion

and not resisting the same, it is ordered that said motion be allowed

and that leave be granted to file said amendment accordingly.

December, 30, 1879.

(S’g’d) J. M. LOVE.

4—16

26 WILLIAM D. ANDREWS ET AL. VS. GEORGE HOVEY.

oe af Amendment to Answer.

UNITED STATES OF AMERICA:

In the Circuit Court in and for the District of Iowa. In Equity.

Witiram D. ANpDREWs, GEoRGE H. ANDREWs, ef al.

Us.

Now comes , the defendant in the above-entitled cause,

and, leave of court having been first obtained to make an amend-

ment to his answer herein filed, in addition to the matters and facts

heretofore in his answer in this cause filed, states:

That the invention patented by Nelson W. Green and claimed by

him to be his invention, as set forth in the bill of complain-

128 ants herein, was, long prior to the time of such claimed in-

vention, mentioned and described in certain printed publica-

tions and bocks as follows: .

In Reese Cyclopedia, published in London, England, about the

year 1819, in volume 5, under the head or title of “Borer in Ru-al

Economy ;” and in volume 9838, under the head or title of “Spring

Draining Pump,” and in volume 38, under the head of “ Well in

Ru-al Economy.”

Also as shown in plates, seis me 1, plate 37, of said Reese Cyclo-

pedia, under the head of ‘ ‘Agriculture.” Said work known as Reese

Cyclopedia is not paged, but the subject are arranged in alphabet-

ical order, and the above subjects are described under the several

heads and plates as stated.

4129 Also in a certain book known as Mackenzie’s 5,000 Re-

ceipts, published in Philadelphia about the year 1829 by one

J.J. Woodward, on page 500, under the head and title of “To Raise

Water in All Situations.”

Also in a certain book known as Livingston’s South Africa ene

an account of the missionary travels and researches in South ‘Afric:

by David Livingston, published by Harper Brothers in 1858, 1859,

1860, on page 59 of said book.

Also in certain letters patent of the United States issued to Levi

Disbro Novy. Ist, 1830

Also that said claimed invention was known in all its various

parts, and the principles involved in said invention were used by

and known to the following persons residing at Preble, in the

130. = county of Courtland and State of New York, to wit: William

EK. Tallman, now deceased ; Moses C. Tallman, Mrs. Moses C.

Tallman, Abram V andenburg, Theodore Klock, Thomas Getman,

John Wilbur, Edwin Wilbur, ‘Charles W hite, George Taylor, Calvin

Sheppard, John D. F. W oolston, John Hilligus, and Ezra Hilligus,

who had knowledge of the same at Preble aforesaid.

Also Henry C. “Ty allman, residing at Tully, Onondaga county,

New York, who had knowledge of the same at Preble.

1 &

WILLIAM D. ANDREWS ET AL. VS. GEORGE HOVEY. 27

Also to Timothy H. Buxton, Chancey Buxton, Hiram Adams,

Alonso Burr, Jabez B. Warren, and Spencer Cronkite, who resides at

Warsaw, New York,and who knew of such use at Warsaw aforesaid.

Also to B. C. Hales, who resides at Quasqueton, Iowa, and

131 ~to Elias 8. Hovey, who resides at Swanton, Iowa, and to S. W.

Fenstermaker, J. E. Trexler, and Martin Rust, who reside at

Waterloo, Iowa, and to William Codling, who resides at Fairbank,

Iowa, and to M. B. Trins, John A. Davis, E. W. Purdy Almon T.

Francis, Oliver Marquett, Walton Hill, H. A. King, — W. H. H.

Morse, who reside at Independence, [owa, and knew of such use at

Independence, Iowa, aforesaid.

This defendant further state- that after the time that the said Nel-

son W. Green claims to have invented said well or process the same

was abandoned by the said Green to the public and was used by the

public for more than two years before a patent was applied for.

Wherefore defendant asks that the foregoing may be made

132 apart of his answer in this case in addition to the matters

and facts as alleged in the original answer filed.

Solicitors for Defendant.

Unirep States oF AMERICA, District of Jowa:

—, , being duly sworn, deposes and says that I am the de-

fendant in the above-entitled cause; that the matters as set forth in

this amendment to my answer are true, so far as my own knowledge

is concerned, and those stated on belief I believe to be true.

Subscribed in my presence and sworn to before me by ——- ——

this — day of , 1880. i

133 Witness my hand and seal.

3

Notary Public.

WirtiAmM D. ANpDREws é al.

vs.

GEORGE Hovey and Other Causes.

M-r-. Rickel, West & Eastman, of Cedar Rapids, Iowa, and solic-

itors for complainants, do hereby consent that the amendment to the

answer to which the within is a copy may be used by defendants in

lieu of the one that Judge J. M. Love gave order to be filed on the

30th day of December, 1879, arid that this may be used in all the

cases, as the other was ordered to be used.

Jan. 22, 1880.

(Signed) RICKEL, WEST & EASTMAN,

Solicitors for Complainants.

154 (Endorsed:) Wm. D. Andrews, Geo. H. Andrews, e al. vs.

George Hovey. Amendment to answer and order of J. M.

Love, dist. judge, allowing same, filed in this cause and in all other

causes. Consent of Rickel, W. & E. to file this in lieu of one ordered.

Lake & Harmon, solicitors for defendants. Filed Mar. 1, 1880. E.

R. Mason, clerk.

WILLIAM D. ANDREWS ET AL. VS. GEORGE HOVEY.

1435 -. And on the Ist day of March, 1880, the defendant, by his

solicitors, filed in said cause an amendment to his answer in

the words and figures following, to wit:

(186_ Amendment to Answer.

UniTeED STATES OF AMERICA:

In the Circuit Court in and for the District of Iowa. In Equity.

WiiiraAM D. ANpReEws, GrorcEe H. ANDREws, ef al.

| vs.

GEORGE Hovey.

Now comes George Hovey, the defendant in the above-entitled

~ause, and, leave of court having been first obtained to make an

amendment to his answer herein filed, in addition to the matters

and facts heretofore in his answer in this cause filed, states—

That the invention patented by Nelson W. Green and claimed by

him to be his invention, as set forth in the bill of complain-

137 = ants herein, was, long prior to the time of such claimed in-

vention, mentioned and described in certain printed publica-

tions and books as follows:

In Reese Cyclopedia, published in London, England, about the

year 1819.

In volume 5, under the head or title of “ Borer in Rural Economy.”

And in volume 33, under the head or title of “Spring Draining

Pump,” and in volume 388, under the head of “ Well in Rural

Economy.” 3

Also as shown in plates, volume 1, plate 37, of said Reese Cyclo-

pedia, under the head of “Agriculture.”

Said work known as Reese Cyclopedia is not paged, but the sub-

jects are arranged in alphabetical order, and the above subjects are

described under the several heads and plates as stated.

1388 — Also ina certain book known as “ Mackenzie’s 5,000 Re-

ceipts,” published in Philadelphia about the year 1829, by

one J. J. Woodward, on page 500, under the head and title of ‘‘ To

Raise Water in all Situations.”

Also in a certain book known as “Livingston’s South Africa,”

being an account of the missionary travels and researches in South

Africa by David Livingston, published by Harper Brothers, in 1858,

1859, 1860, on page 59 of said book.

Also in certain letters patent of the United States issued to Levi

Disbro Nov. Ist, 1850.

Also that said claimed invention was known in all its various

parts, and the principles involved in said invention were used by

and known to the following persons residing at Preble, in the country

of Cortland and State of New York, to wit: William E. Tall-

1389 man, now deceased; Moses C. Tallman, Mrs. Moses CU. Tall-

man, Abram Vandenburg, Theodore Klock, Thomas Getman,

John Wilbur, Edwin Wilbur, Charles White, George Taylor, Calvin

Shepard, John D. F. Woolston, John Hilligus, and Ezra Hilligus,

who had knowledge of the same at Preble aforesaid.

=

f

ad

a

WILLIAM D. ANDREWS ET AL. VS. GEORGE HOVEY. 29

Also Henry C. Tallman, residing at Tully, in Onondaga county,

New York, who had knowledge of the same at Preble.

Also to Timothy H. Buxton, Chancey Buxton, Hiram Adams,

Alonson Burr, Jabez B. Warren, and Spencer Cronkite, who reside at

Warsaw, New York, and who knew of such use at Warsaw afore-

said.

Also to B. C. Hale, who resides at Quasqueton, Iowa, and to Elias

S. Harvey, who resides at Swanton, Iowa, and to 8S. W. Fenster-

maker, J. E. Trexler,and Martin Rust, who reside-at Water-

140 loo, Towa ,and to William Codling, w ho resides at “airbank,

Towa, al to M. B. Tims, John A. Davis, E. W. Purday, Al-

mon I. Francis, Oliver Marquett, Walton Hill, HA. King, W. H.

H. Morse, who reside at Independence, Iowa, and knew of ‘such use

at Independence, Iowa, aforesaid.

This defendant further states that after the time that the said Nel-

son W. Green claims to have invented said well or process the same

was abandoned by the said Green to the public, iid was used by

the public for more than two years before a patent was applied for;

wherefore defendant asks that the foregoing may be made a part of

his answers in this case in addition to the matters and facts

141 as alleged in the original answer filed.

(Signed) LAKE & HARMON,

Solicitors for Defendant.

Unitep Srates oF AMERICA, District of Iowa:

I, George Hovey, being duly sworn, deposes and says that I am

the defendant in the above-entitled cause; that the matters as set

forth in this amendment. to my answers are true, so far as my own

knowledge is concerned, and those stated on belief [ believe to be

true.

Subscribed in my presence and sworn to before me by George

Hovey this 25 day of February, 1880.

Witness my hand and seal.

[SEAL. ] (Signed) JED. LAKE,

Notary Public in and for Buchanan County, Iowa.

142 (Endorsed :) William D. Andrews, Geo. H. Andrews, et al. vs.

Gev. Hovey. Amendment to Answer. Filed Mar. 1, 1880.

E. R. Mason, clerk. Lake & Harmon for def’ts.

WILLIAM D. ANDREWS ET AL. VS. GEORGE HOVEY.

1438 And on the 14th day of June, 1880, the defendant, by

Lake & Harmon, his solicitors, filed in said cause a list of

wells made by defendant in the words and figures following to wit:

144 Notice of Provisions in Stipulation Dec. 13th, 1879.

UNITED STATES OF AMERICA:

In Cireuit Court for the District of Iowa.

WintiAM D. ANpREWws, GEORGE H. ANDREWS, ef al.

vs.

GEORGE Hovey.

In accordance with the provisions in the stipulation entered into

by and between the complainants and defendant herein, by Rickel,

West and Eastman, solicitors for complainants, and Lake and Har-

mon, solicitors for defendant, on the 13th day of December, 1879,

at the city of New York, and in pursuance of the conditions in

said stipulation, notice is hereby given that the defendants

145 hereinafter named, against whom suits have been brought for

infringing letters patent reissue No. 4572, dated May 9th,

1871, issued to Nelson W. Green, by the above-named complainants

in the above-named court, admit that they each have a well made

in the same manner, and the method of construction was the same

as that used by the above-named defendant, George Hovey, since

1871, lease No. 1260:

W. Butterfield, No. 1267.

H. Griswold, No. 1270.

William Hayes, No. 1275.

G. W. Rice, No. 1277.

I. Stratton, No. 1345.

J. Couch, No. 1855.

G. M. Miller, No. 1356.

C. Marton, No. 1417.

J. Burke, No. 1420.

M. Emisminger, No. 1422.

J. Hollett, No. 1424.

146 J. Klotzbach, No. 1425.

W. H. H. Morse, No. 1428.

W. B. Phelps, No. 1483.

I. S. Wileox, No. 1351.

EK. k. Jenks, —.

It is further admitted by the defendants whose names are here-

inafter written that they each have a well made in the same man-

ner and by the same process of construction as used by the defend-

ant, George Hovey, but that their wells were made and used and

were in successful operation before the date of said reissued letters

patent No. 4372, issued to Nelson W. Green and dated the 9th day

of May, 1871, and for that reason they are not liable to pay any

royalty or any costs or damages in the suits pending against them,

to wit:

147 No. 1264, Eli Cutshaw.

No. 1269, A. Hayeman.

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WILLIAM D. ANDREWS ET AL. VS. GEORGE HOVEY.

No. 1344, S. L. Adams.

No. 1347, J. Durkee.

No. 1354, John Miller.

No. 1421, J. Hasbrook.

No. 1423, J. D. Keele.

No. 1468, Samuel Smith.

No. 1357, Pat Ney.

The following-named defendants state that the wells they have

are open-dug wells:

No. 1261, E. Baggot; 1272, J. Kesher; 1274, H. B. Philips; 1276,

W. E. Snow; 1279, Mont. Smith; 13849, Pat. Farrell; 1551, E. K.

Jinks; 1852, Dolph Jinks; 1419, William Davis; 1427, R. R. Plane;

1431, A. H. Trask; 1432, B. Glager; 1504, O. Harrington; 1520,

Bradford Lewis; 1466, J. Hockings; 1298,-A. B. Darvell.

The following-named defendants say that their wells are

148 made by boring down and into the water with a large augur

and removing the earth upwards out of the hole and insert-

ing the tubing, from six to sixteen inches in diameter, which tubing

forms the lining of the well, and inside of which is placed the

pumps, and therefore is different in its construction from any of the

wells named by the defendants whose cases have been selected for

trial by the complainants herein, to wit:

No. 13846, W. O. Curtis.

No. 1348, W. Daly.

No. 1351, E. K. Jinks, 2 wells.

No. 13853, Adam Kiefer.

No. 1359, W. Richmond.

No. 13862, C. Weitman.

No. 1546, David Zimmerman.

No. 1297, J. Bills.

— 1302, Nathan Hayes.

No. 1807, J. F. Spuir.

No. 13812, George H. Webb.

No. 1813, James Wood.

149 No. 1474, Merritt and Mills.

No. 1800, Edward Forrester.

No. 1278, Benjamin Miller.

. The following-named persons have places that they bought with

the wells on them, and don’t know when or how they were con-

structed :

No. 1266, C. C. Cadwell.

— 1418, J. Cling.

Of which facts the complainants and their solicitors will take due

notice, and the original of this will be filed with the clerk of the

United States circuit court at Des Moines, Iowa, to be attached to

the stipulation to which it refers.

(Signed) LAKE & HARMON,

Solicitors for Def’ts.

Due, legal, and timely service of this notice accepted by us, and

copy of same received at Cedar Rapids, Iowa, this 3d day of Feb-

32 WILLIAM D. ANDREWS ET AL. VS. GEORGE HOVEY.

150 ~=—ruary, A. D. 1880, but we refuse to be bound by the fore-

going stipulation or notice in any manner, & claim that it is

not in accordance with the agreement of Dec. 13th, 1879, made in

New York city.

(Signed) RICKEL, WEST & EASTMAN,

Solicitors for Complainants.

We further give notice to solicitors for defendants that we are

ready and willing to enter into stipulation contemplated by stipu-

lation made in New York city Dec. 13th, 1879, & that 1f we are to

proceed with the 5 cases selected for hearing by us we shall insist

on all other cases abiding the result of such cases, & that the same

decree be entered in all other cases as is rendered in said causes

so seected for hearing, except in those cases where

151 ~~ def’ts may show that their wells are open or dug wells.

(Signed) RICKEL, WEST & EASTMAN,

Solicitors for Complainants.

This was not returned to us until Feb’y 25th, 1880, at 3.50 p. m.

(Signed) LAKE & HARMON.

(End.:) U. S.cir. court. W. D. and G. H. Andrews eé¢ al. vs. George

Hovey. Lake & Harmon, sol’rs for def’t.

(End.:) William D. Andrews, Geo. H. Andrews, e¢ al. vs. Geo.

Hovey. List of parties whose wells are made by Hovey ; those made

before 1871: those who are dry; those who have them made with

large augur and lined. Filed June 14,1880. E. R. Mason, clerk.

152 And on the 14th day of June, 1880, the defendant, by his

solicitors, filed in said cause a notice as to proof of prior

use in the words and figures following, to wit:

153. + Uwnirep States oF AMERICA:

In Circuit Court for the District of Iowa. In Equity.

WitiiaAM D. ANDREws, GEO. H. ANDREWS, et al., Comp’ts,

vs.

GEORGE Hovey, Def’t.

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To the above-named complainants, and Rickel, West, and Eastman,

their solicitors:

You are hereby notified that in taking the testimony on the part

of the defense in the above-entitled — the said defendant will prove

the prior use of the pretended invention of Nelson W. Green by the

following-named persons in addition to those named in the answer

and the amendment to the answer: M. B. Tims, John A.

154. ~Davis, Almon I. Francis, O. Marquette, W. Hill, E. W. Purdy,

H. A. King, and W. H. H. Morse, who reside at Independ-

ence, lowa, and who knew of its use at Independence, Iowa; also J.

E. Trexler and Martin Rust, who reside at Waterloo, Iowa, and who

knew of said well at Independence, Iowa.

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WILLIAM D. ANDREWS ET AL. VS. GEORGE HOVEY. 83

The depositions of said witnesses will be taken in due time, to be

used in the trial of said cause and all other causes tried in accord-

ance with stipulations heretofore made.

(Signed) LAKE & HARMON,

Solicitors for Deft.

Due, legal, and timely service of this notice accepted at Cedar Rap-

ids, Iowa, this 2d dav of January, 1880, by us.

(Signed) RICKEL, WEST & EASTMAN,

Solicitors for Complainants.

(End:) Wm. D. Andrews et al. vs. George Hovey. Notice as to

proof of prior use. Filed June 14, 1880. EE. R. Mason, clerk.

155 And on the 14th day of June, 1880, the defendant, by his

solicitors, filed in said cause a notice as to using testimony of

Edward Ross e al. on hearing in the words & figures following,

to wit:

156 Uwnirep Srates or America, District of Lowa:

_In Circuit Court. In Equity.

WititiAM D. ANpReEws, Geo. H. ANDREws, e¢ al., Complainants,

vs.

GrEoRGE Hovey, Def’t.

To the above-named complainants and Rickel, West and Eastman,

their solicitors:

You are hereby notified that at the hearing of this cause and the

four other causes selected by you to be tried in the actions brought

by you against this and other defendants for infringement of letters

patent reissue No. 4372, dated 9th May, 1871, the defendants will

ask the court to admit the testimony of Edward Ross and

157-6713 John H. Campbell for the purpose of proving prior use

in these cases.

(Signed) LAKE & HARMON,

Solicitors for Def’t.

We truly accept due servace of this notice and the rec’t of a copy

of the same at Independence, Iowa, this 2d day of April, 1880.

(Sigiied) | RICKEL, WEST & EASTMAN.

Solicitors for Complainanis.

(Endorsed :) Wm. D. Andrews et al. vs. George Hovey. Notice that

def’t will use testimony of E. Ross & J. H. Campbell at hearing.

Filed Jun- 14, 1880. E. R. Mason, clerk.

WILLIAM D. ANDREWS ET AL. VS. GEORGE HOVEY.

672 Inthe Circuit Court of the United States for the Southern

District of lowa, Central Division. In Jiquity.

Wm. D. Anprews ef al., Complainants,

US.

| GEORGE Hovey, Respondent.

| This suit, with a large number of others against other defendants

| now pending in this court, is based upon reissued letters patent No.

4372, granted to Nelson W. Green, one of the complainants, under 1

date of May 9, 1871, the original patent, No. 73425, bearing date <

January 14, 1868, and having been issued for an “improved method

of constructing artesian wells.”

The bill alleges an infringement on the part of the defendant, and +

prays for an injunction, accounting, damages, and further relief.

The answer, in substance, denies that Green was the original in-

ventor of the alleged improvement, avers that the alleged invention

was known and in public use for more than two years prior to the

date of the original letters patent; that Green, if he was an original de

inventor, abandoned his inventions and knowingly permitted its

public use for more than two years before applying for a patent ;

that the reissue is a departure from the original letters patent and

embraces different and more extensive claims than are covered by

the original, and also denies that defendant has infringed upon the

| rights and invention held and owned by the complainants. 4

| As already stated, there are pending in this court a large number

of causes brought by the complainants for alleged infringements

upon their rights, and in the district of Minnesota similar suits are

pending, in which the issues are substantially the same.

For convenience’s sake it was agreed that these causes should be

heard at one and the same time before the judges of the district of

Minnesota and the districts of lowa,and accordingly at the October

term, 1882, of this court such hearing was had and the questions at

issue were very fully and ably presented, bothin print and by oral

argument, before the court. At the time there was pending before

the Supreme Court at Washington the case of Wahl vs. Hine,

673 on appeal from the district of Indiana, in which cause this

same patent was involved, and it was hoped the decision of 7

that case would give us a final and authoritative decision upon the -

more important questions discussed in this court.

When the judgment in Wahl vs. Hine was announced, however,

it appeared that the Judges were equally divided in opinion therein,

eight only of the members of that court having sat in the case, and

hence no opinion upon the merits was reached or announced in s

that cause.

It became, therefore, the duty of this court to consider the ques-

tions submitted unaided by the decision in Wahl vs. Hine, and we

have endeavored to give them the consideration which their im-

portance demands. Upon many of the questions involved a very

large amount of evidence has been adduced, and the questions of

Jaw and fact have been ably argued and presented by the counsel P

in the cause.

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WILLIAM PD. ANDREWS ET AL. VS. GEORGE HOVEY. 35

Stoneman, Rickel & Eastman, Hubbard, Clark & Dawley, A. R.

West, Rogers & Rogers, for complainants; Lake & Harman, Wilson

& Gale, for defendants.

SHIRAS, District Judge:

Assuming for the present that Nelson W. Green is entitled to

the credit of being the inventor of what is commonly known as

the “driven well,” we shall first consider the defense of abandon-

ment—that is to say, the averment that he allowed the use of his

invention to become part of the property of the public without

asserting his right to a patent for the protection of his rights as an

Inventor.

In the case of Shaw vs. Cooper, 7 Peters, 292, it was held that

“vigilance is necessary to entitle an individual to the privileges

secured under the patent law.” It is not enough that he should

show his right by invention, but he must secure it in the mode re-

quired by law, and if the invention, through fraudulent means,

should be made known to the public he should assert his right im-

mediately and take the necessary steps to legalize it.

The patent law was designed for the public benefit as well as for

the benefit of inventors. * * * No matter by what means an

invention may be communicated to the public before a patent is

obtained, any acquiescence in the public use’ by an inventor will be

an abandonment of his right. If the right were asserted by him

who fraudulently obtained it, perhaps no lapse of time could give

it validity.

But the public stand in an entirely different relation to the in-

ventor.

The invention passes into the possession of innocent persons who

have no knowledge of the fraud, and, at a considerable expense,

perhaps, they appropriate it to their own use. as

A strict construction of the act as it regards the public use of an

invention before it 1s patented is not only required by its letter and

spirit, but also by sound policy. * * * The doctrine of

674 presumed acquiescence, where the public use is known or

might be known to the inventor, is the only safe rule which

can be adopted on this subject. * * * Whatever may be the

intention of the inventor, if he suffers the invention to go into

public use through any means whatever without an immediate as-

sertion of his right, he is not entitled to a patent, nor will a patent

obtained under such circumstances protect his right.”

In the ecdse of the Consolidated Fruit Jar Co. vs. Wright, 94 U.S.,

96, it is said that the “ inventor must comply with the conditions

prescribed by law. If he fails to do this he acquires no title and his

invention or discovery, no matter what it may be, is lost to him and

is henceforward no more his than if he had never been in anywise

connected with it. It is made thereupon, as it were by accretion,

irrevocably a part of the domain which belongs to the community

at large.”

From the evidence in this cause it appears that in the summer

of 1861 Nelson W. Green was a resident of Cortland, New York ;

EN aati a

36 WILLIAM D. ANDREWS ET AI. VS. GEORGE HOVEY.

that he was engaged in drilling and organizing volunteers for the

army, and especially in connection with the 76th regiment of New

York infantry, of which regiment he was appointed colonel; that

whilst thus employed his attention was called to the subject of pro-

curing pure water for the use*of his men, and that he set about to

devise a means by which water could be readily procured from

beneath the surface of the earth, thus avoiding danger from poisoned

wells and springs, and also from the risk of being cut off from ac-

cess to the ordinary sources of supply when in the presence of the

enemy.

The patentee himself testifies that in the summer of 1861 he had

devised in his own mind a method of accomplishing this result,

which he explained first to his drill squad and then to the officers

of his regiment, and which consisted in driving a rod sharpened at

the end into the ground and into. the water-bearing stratum, then

withdrawing the same and inserting a tube through which the water

could be drawn by an ordinary style of pump. As a test of the

method proposed, under the direction of Col. Green, an experiment of

driving a rod down to the water was made near his house, and this ex-

periment was followed by driving a well at the fair grounds at Cort-

land at the expense and for the use of one Graham, who had the

contract for furnishing food and other supplies at the camp on the

fair grounds, This well was driven between the Ist and 15th of

October, 1861, and was used generally by the men in camp as well

as by Graham and his employés. } |

We further find in the testimony of Colonel Green the following:

Question 60. “After this experiment at the house and the making

and use of the well at the fair grounds, what was your opinion as

to the practicability of making wells by that process, either for gen-

eral use or for the purposes of the army, as you had originally in-

tended?”

Answer. “ The result of the two experiments referred to had upon

my mind the effect to convince ine of the entire practicability and

feasibility of the process for all the purposes named in the ques-

tion.”

675 Question 61. “ Did you take any steps, give any orders or

directions for the procurement of material to be taken with

your regiment into the field for the purpose of making wells to sup-

ply that regiment with water wherever it might be situated ? ”

Answer. ‘I gave Lieutenant Mudge orders to procure such ma-

terial for the purposes named, and gave Adjutant Robinson orders to

furnish him with transportation for the same, and when‘at Albany

made arrangements with the quartermaster general for the trans-

portation of that material with the regiment when it went to the

front.”

By the testimony of the patentee himself it is shown that the in-

vention claimed by him was perfected in conception in the summer

of 1861, was demonstrated to be a success by practical use in Octo-

ber, L861; that the patentee caused the necessary apparatus to be

procured to be taken with the regiment for its use when it moved

WILLIAM D. ANDREWS ET AL. VS. GEORGE HOVEY. OV

to the seat of war, and arranged with the authorities at Albany for

the transportation needed therefor.

The testimony of the patentee shows beyond the possibility of a

doubt that his object and purpose in 1861 was to provide a means

of supplying the men under his care with pure water, and protecting

them from the danger to be apprehended from the polluted or poi-

soned springs and wells, or from being cut off by the enemy from

access to the usual sources of supply, and to this end he caused the

apparatus to be used in driving wells to be procured and transpor-

tation therefor to be provided.

The sinking of the well at the fair grounds at Cortland and the

providing ty means for driving these wells whenever and wherever

they might be needed by the regiment establishes beyond question

the intent on part of Col. Green that this invention should be pub-

liciy and commonly used by his regiment at any and all times and

places. His own testimony shows that he explained his invention

and the means of carrying it into effect, first to his drill squad and

then to the officers of his regiment, and subsequently consented to

the sinking and public use of jthe well at the camp ground, and yet

he never cautioned any one to keep the method a secret, nor is it

shown that in 1861 he ever mentioned to any one the idea of obtain-

ing a patent or that he purposed doing so orthat he took any action

looking to that end. All that he did tended to spread the knowl-

edge of the mode of making these wells and of the success attending

their use, and nothing whatever is shown indicating an intent to

restrict the right to make and use the same to himself as a patentee.

It is an admitted fact that Col. Green was a man of intelligence

and education, and he must have known what the law required of

him in ease he desired to secure his rights as an inventor under the

provisions of the patent laws. He knew, then, that to secure his

rights, if he desired to procure a patent, he must apply therefor be-

fore permitting his invention to pass into general or public use.

His o own testimony conclusively shows that he gave publicity to his

invention and consented to, nay, aided, in making the use

676 thereof common and public. There is nothing in the evi-

dence showing that he purposed or intended to make further

or different experiments with a view to perfecting his discovery.

He himself expressly testified that the experiment at his house

and the driving and use of this well at the camp ground convinced

him of the fe: asibility of the process in making wells either for gen-

eral or army use, or, as counsel for complainants, | in their brief upon

the facts, pages 17 and 18, state 1t—

“'The two experiments fully and satisfactorily demonstrated the

general practicability of the process where no rock intervenes.”

The evidence shows conclusively, therefore, that the invention

was thought out and was put into satisfactory use, the use being an

open and public one, whilst Col. Green’s regiment was in camp at

Cortland, and the necessary machinery aud tools, with transporta-

tion therefor, were provided for continuing the construction and the

open and public use of other wells, and yet no step was taken by

Col. Green for the procurement of a patent, nor was there at that

38 WILLIAM D. ANDREWS ET AL. VS. GEORGE HOVEY.

time any act done or statement made indicating a purpose or intent

upon his part to apply for a patent in the future.

It is urged, however, that the reason why an application for a pat-

ent was not made at that time was because Col. Green had become

involved in serious difficulties on account of the shooting of Captain

McNett, one of the officers of his regiment, on the 6th of December,

1861.

If it appeared from the evidence that Col. Green had in the fall of

1861 taken the initiatory steps for the procurement of a patent or

had even unmistakably announced his intention so to do and it ap-

peared that the accomplishment of such purpose was interrupted by

the complications and difficulties arising out of the shooting of Cap-

tain MeNett, it might then be claimed that these difficulties formed

an excuse for the long delay in applying for a patent on part of Col.

Green.

But it will be borne in mind that the idea of this mode of con-

structing a well was thought out in the summer of 1861, and the

well at the camp ground was sunk before the 15th of October, and

the shooting of MeNett was not until December 6.

It is also shown by Col. Green himself that he gave the proper

orders for the construction of the apparatus necessary to be used in

sinking wells and that when in Albany he arranged for the trans-

portation thereof with the regiment when it moved to the seat of

war. If he thus had time and opportunity enough to provide

the means necessary to furnish these wells for the common and

public use of his regiment, can it be fairly claimed that he did not

have time and opportunity to at least announce his purpose of pro-

curing a patent, if such was then his intent ?

It would seem that the utmost that can be said of the effect of the

difficulties resulting to Col. Green from the shooting of Capt. McNutt

is that thereafter his attention was so fully occupied thereby that he

cave vo further thought to the subject of driven wells at that

677 time,and henee did not in his own mind reach the conclu-

sion that he would apply for a patent until several years had

elapsed and these difficulties had begun to pass away and until it

was brought to his attention that through the use of this mode of

driving wells other parties had reaped large pecuniary benefits.

But ‘during this delay, extending to May, 1866, a period of over

four years, the pablic had acquired rights ‘through the open and

uninterrupted use of the discovery.

What the causes were that led to this long silence on the part of

-Col. Green are not so material as the fact itself that he made public

the knowledge and use of his invention and then for over four

years remained wholly silent and took no action for the procure-

ment of a patent.

Can there be any question that Col. Green did permit his inven-

tion to go into public use without an immediate assertion of his

rights?

In Egbert vs. Lippman 104, U.S., 333, it was held that “ to con-

stitute the public use of an invention it is not necessary that more

than one of the patented articles should be publicly used,” it being

;

WILLIAM D. ANDREWS ET AL. VS. GEORGE HOVEY. 39

also held in the same case that “if an inventor, having made his

device, gives or sells it to another to be used by the donee or vendee

without limitation or restriction or injunction of secrecy, and it is so

used, such use is public, even though the use and knowledge of the

use may be confined to one person.”

It is not questioned that the well at the camp ground was made

with the knowledge and consent of Col. Green. It was for a public

use, being constructed at the expense of the sutler, Graham, for the

purpose of supplying water for use in the cook-rooms, as well as for

general use by all connected with the regiment.

There was no effort made to keep the mode of its construction

secret, but rather the contrary.

When the regiment left Cortland, New York, Col. Green exercised

no control over this well, nor did he cause it to be taken up or other-

wise kept from public use or knowledge. If he was the inventor of

that description of well he certainly gave to Graham the full right

to construct and use the well and to permit its use by others with-

out any limitation whatever or any injunction of secrecy, thus

bringing the case within the rule laid down in Egbert vs. Lippman,

even if there were no further facts showing acquiescence in the pub-

lic use of the invention; but these facts are not wanting, for it is

proven by Col. Green himself that he caused the necessary tools and

pipes to be procured for the use of the regiment when it went to the

front, showing clearly that he proposed and intended to permit any

number of wells to be sunk and used that might be needed by the

regiment, thus showing that he contemplated a continuous public

use of the invention without restriction or limitation.

Again, the evidence shows that a large number of driven wells

were made and used in and about Cortland and neighboring places

during the years 1862, 1863, 1864, and 1865. It is now claimed

that Col. Green had not actual knowledge of the existence of

678 these wells, but was he not bound to know that the natural

result of what he himselt had done and had caused to be

done in the way of giving publicity to the success which attended

this mode of making wells would be to spread their use by the pub-

lic, unless he promptly prevented such result by procuring a patent,

and can he now be heard to say that he did not know nor have

reason to know that the use of these wells was becoming common

in his own neighborhood, when the facts show that such was the

natural result of his own acts? |

But we are not left to mere inference upon the question, as there

is testimony showing satisfactorily that he had knowledge of the

existence of a portion, at least, of these wells, and despite his own

testimony, wherein he endeavors to destroy the weight of his testi-

mony either by direct denial or by claiming that he did not, in fact,

recognize certain wells which came under his notice to be driven

wells, yet we think the preponderance of evidence is against him on

this proposition, and that it must be held that he knew that such

wells were being made and used.

We find, therefore, as conclusions of fact:

1. That in 1861 Col. Green’s purpose in devising his method of

40 WILLIAM D. ANDREWS ET AL. VS. GEORGE HOVEY.

driving wells was to furnish a ready means whereby the men of his

regiment could procure a supply of pure water, and that he did not

at that time contemplate procuring a patent therefor, and that he

put his method of driving wells into public use in 1861 for the bene-

fit of his regiment, and thereby dedicated or abandoned his inven-

tion to the public.

2. That his invention was in open and public use, with his know!l-

edge and acquiescence, for more than four years before he applied

for a patent thereon.

From these conclusions of fact it necessarily follows that the let-

ters patent originally granted and the reissued letters based thereon

must be held invalid and void.

II. It is also urged on behalf of defendants that the reissued pat-

ent enlarges the scope of the original patent, is broader in its terms,

including improvements and principles not contained in the original

specifications, and is therefore void.

This defense demandsan examination and determination of what

Col. Green’s original invention consisted and of what is embraced

within and covered by the reissued patent.

We will consider the latter proposition before proceeding to the

former:

Wim. D. Andrews, one of the complainants, in giving his testi-

mony, is asked whether he has read and understands the reissued

patent, and, if so, to describe it, which he does in the following lan-

ouage: :

“The invention is for a method of procuring water from the earth

by means of a tube inserted into the earth down to and into a water-

bearing stratum, and attaching to such tube, in cases where the

water does not flow naturally, a pump by an air-tight connection,

and by the operation of the pump producing a vacuum within

the tube which forms the body of the well and its lining,

679 thereby causing the water in the surrounding earth, un-

der the pressure of the atmosphere, to rush into the well

formed by the tube, and furnishing a practically inexhaustible sup-

ply of water by the means as stated and described.”

In the opinion of Judge Benedict, in the Carman case, cited at

length by complainants, it is stated that “the novelty consists in mak-

ing the well pit to consist of the tube of a pump connected tightly

with the earth; this is accomplished by driving into the earth the

tube to be used as a tube of a pump and at the same time as the pit

of the well.

“This manner of inserting the tube renders it possible, by means

of a pump attached to the tube, to create a vacuum in the pit of the

well, and at the same time in the water-bearing stratum of the

earth.”

In the printed argument of counsel for complainants it is said

that “the drive well invented by Col. Green left no open space be-

tween the lining and the suction pipe, and is based upon the prin-

ciple that if a vacuum is formed in the earth at the ordinary depths

by the action of the suction pump the atmospheric pressure commu-

nicated through the earth to the water will cause it to respond to

ll Ay “Se

WILLIAM PD. ANDREWS ET AIL. VS. GEORGE HOVEY. 4]

the vacuum produced within the well, whose lining is itself the suc-

tion pipe of the well and perfectly air tight, the earth serving asa

filter.”

It is not necessary to extend these quotations to show that the

principle which it is claimed constitutes the discovery or invention

of Col. Green, as described in the reissued patent, is that the produc-

tion of a vacuum in the earth by means of an air-tight tube driven

into the earth, to which is attached a suction pump, will greatly in-

crease the supply of water.

To-produce this vacuum it is necessary that the tube forming the

lining of the well should be in such close contact with the surround-

ing earth as to be air-tight, and it is claimed that driving the tube

into the ground, whether with or without originally perforating the

earth with a rod, constitutes a mode of constructing a well which

practically results in producing a well whose lining, to wit, the tube,

is In air-tight connection with the earth. In other words, in order

to successfully apply the principle it is absolutely essential that the

tube forming the lining of the well should be in such close contact

with the earth that the air cannot pass down around the outside of

the tube, and the pump used in drawing up the water must also be

attached to the end of the tube by an air-tight connection. Unless

both of these conditions are. fulfilled it is impossible to create a

vacuum in the tube and about the portion of it inserted in the

water-bearing stratum, and as the creation of this vacuum is the

essential and only means of applying the principle which it is

claimed constitutes the chief merit of Col. Green’s invention or dis-

covery, it follows that in order to protect such a discovery by a patent

it must be included within the specifications. ‘This may be done by

either a proper description of the result to be obtained or by the

means employed to accomplish the result—that is to say, it would

be sufficient if it was stated that by the use of certain prescribed

means a vacuum in and about the tube would be created and thereby

the supply of water would be increased, or if it was stated

680 that the tubing of the well was so driven as to be made air-

tight by contact with the surrounding earth and the pump

to be used was affixed to the tube by an air-tight connection. In

the latter case the result reached or the principle put into operation

would not be described, but, as the means described must necessarily

produce the result or apply the principle, it is held sufficient to de-

scribe the means employed without specifying the principle which

is thereby brought into play. Indeed, it is not necessary that the

inventor, to be entitled to a patent, should himself understand the

abstract principle which hisinvention brings into use. It is sufficient

if he is the inventor of a means whereby a new and useful applica-

tion of the abstract principle is brought about. Still, as already re-

marked, it is necessary that in the patent and specification the new

and useful application of the principle must be described, either by

setting forth the result obtained, with the means of its accomplish-

ment, or else by such a description of the means employed as will, if

followed, necessarily produce a result which embodies the practical

application of the principle involved.

I—16

Bee te

RI ERD Sta cg alge

42 WILLIAM D. ANDREWS ET AL. VS. GEORGE HOVEY.

Let us now examine the specifications originally filed by Col.

Green, and see whether there is embraced therein the application of

the principle of utilizing atmospheric pressure through the creation

of a vacuum in the tube and the earth surrounding it, where it

penetrates the water-bearing stratum.

The description of the invention is set forth in the following lan-

guage :

“My invention consists in driving or forcing an iron or a wooden

rod with a steel or iron point into the earth until it is projected to

or into the water, and then withdrawing the said rod and inserting

in its place a tube of metal or wood to the same depth, th rough

which and from which the water may be drawn by any of the usual

well-known forms of pumps.”

Finally, in setting forth his claim, he does so in the following

terms :

“Waving thus fully described my invention, what I claim and

desire to secure by letters patent in the herein- described process of

sinking wells where no rock is to be penetrated, viz., by driving or

forcing down a rod to and into the water under ground, and with-

drawing it and inserting a tube in its place to draw the water

through, substantially as ‘herein described.”

It certainly cannot be successfully claimned that in these statements

it is set forth in express terms that the principle to be utilized is the

atmospheric pressure forcing the water to and into the tube through

the agency of a vacuum created in the tube and in the earth at the

lower end of the tube, where it penetrates the water-bearing stratum.

There is not to be found in any part of the specifications any ref-

erence to a vacuum, either in or out of the tube, nor any mention

of atmospheric pressure created thereby. If the application of this

principle formed the material and all important part of Col. Green’s

invention in 1861 and is now claimed in argument he certainly

failed to set it forth in express terms in his specifications forming

part of the original patent, nor can it be inferred from the descrip-

tion of the means to be employed that he then proposed to

681 create a vacuum by making the well lining air-tight, and by

attaching a pump thereto by an air-tight connection.

He describes a driving rod having a swell thereon which is to be

driven into the ground and then withdrawn, and a tube of a diam-

eter somewhat smaller than the diameter of the swell of the drill

rod is to be inserted in the hole thus made.

In no part of the description is it said, either expressly or by fair

implication, that the tube when inserted must fit so closely into the

opening made by the rod that no air can pass down on the outside

of the tube to the water, nor is it stated that the pump must be

attached by an air-tight connection to the top of the tube.

A person can follow with exactness all the instruction therein

given, and yet it would not necessarily follow that he had excluded.

the air from the lining of the well or from the water- bearing stratum

at the place where the tube penetrated the same.

In other words, the description of the means to be employed as set

forth in these specifications does not show that one of the results

WILLIAM D. ANDREWS ET AL. VS. GEORGE HOVEY. 43

arrived at is to render the lining of the well air-tight and to have

attached thereto a pump by an air-tight connection. “The deser iption

of the means to be employed can be carried out in practice without

making an air-tight lining or tube, and bence without forming a

vacuum around the bottom of the tube or in it. This being true it

follows that it cannot, from the description of the means employ ed,

be inferred that Col. Green then intended to claim as part of his

discovery or invention the application of the principle twat by cre-

ating a vacuum in and about the tube, the same having been made

air-tight, the flow of water would be largely increased.

He did not claim it in express words, and the description of his

invention and the means to be used in carrying the same into prae-

tical use fail to show that such was the main or even a necessary

part of his invention.

In our judgment his invention or discovery is fully and fairly de-

scribed in the language of his own claim, to wit:

“What I claim and desire to secure by letters patent in the herein-

described process of sinking wells, where no rock is to be penetrated,

viz, by driving or forcing ‘dow narod to and into the water under

ground, and w ‘ithdrawi ing rit and inser ting a tube in its place to draw

the water through.”

What he sought to accomplish was to devise a rapid, easy, and fea-

sible means of reaching an underground supply of water, in such a

mode that any ordinary pump could be applied to bring it to the

surface, and his plan was to drive down a rod into the w ater, with-

draw it, and then insert a tube through which the water could be

drawn by any ordinary kind of pump.

In our judgment the evidence introduced by complainants shows

that this was all that Col. Green sought to do in 1861, and that in

making his experiments at that time he did not contemplate

682 or conceive of the idea that the tube should be made air-

tight so as to create a vacuum in it and about it, and thereby

utilize the atmospheric pressure. Hence it is that in the specifica-

tions attached to the original patent no mention is made of atmos-

pleric pressure or of a vacuum in and about the tube, nor is it

stated, in cescribing the means to be employed in making the wells,

that the tube must be air- -tight in its connection with the surround-

ing earth, or that the pump must be attached thereto.

It is inexplicable, if it was intended to embrace in the original

patent the operation of atmospheric pressure in the earth through

the creation of a vacuum, which is now claimed to constitute the

chief features and merit of the driven well, that the specifications

contain no reference thereto, either expressly or even by fair impli-

cation.

We conclude, therefore, that the original patent cannot be so con-

strued as to embrace the application of this principle.

Turning now to the specifications of the reissued patents, what

do we find? In the first place it is stated “ that the hole or opening

is made by the mere displacement of the earth, which is packed

around the instrument, and not removed upward from the hole as

itis in boring;” and it is further said that “I prefer to employ a

44 - WILLIAM D. ANDREWS ET AL. VS. GEORGE HOVEY.

pointed rod, which, after having been driven or forced down until

it reaches the water, I withdraw, and replace with a tube made air-

tight throughout its length, except at or near its lower end ;” and,

further, “I attach to the tube by an air-tight connection any known

form of pump.”

In these portions of the specifications we find it provided that the

earth must be packed around the tube forming the lining of the

well; that this tube must be air-tight throughout its length, except at

or near the lower end, which penetrates the water, and the pump

used therewith must have an air-tight connection with the tube.

Under these specifications it is claimed by complainants that the

main feature of the discovery consists in the utilization of the atmos-

pheric pressure through the creation of the vacuum in and about

the tube. (See questions 11 and 12, testimony of Wm. D. Andrew,

pages 210 and 211, vol. 1, of complainants’ record.)

Giving these specifications the construction which complainants

put thereon, it follows that the reissued patent covers—

1. The process of sinking wells by foreing down a rod or tube to

the water-bearing stratum without removing the earth upwards as

in boring or digging.

2. Creating a vacuum in the tube forming the lining of the well

by making the tube air-tight, except at the lower end, compacting

the earth around the tube, and by attaching a pump with an air-

tight connection to the tube. 3

In the argument of counsel, as well as in the testimony of com-

plainants, it is urged that the great merit of Col. Green’s invention

consists of the discovery of the effect of the vacuum thus created.

According to the view we take of the original patent, it did not

cover or describe the application of this principle.

It follows, therefore, that the reissue embraces the application of

animportantand material principle not found in the original.

683 The rule is well settled that a reissue can be validly granted

only for the same invention which was originally patented.

If the reissue goes beyond this and covers other and different in-

ventions or improvements suggested by the use of the original inven-

tion if will be void. See Bun vs. Durgee, 1 Waliace, 531; Manufact-

uring Co. vs. Ladd, 102 U.8S., 408; Miller vs. Brass Co., 104 U.S.,

300; James vs. Campbell, 104 U.S., 356; Manufacturing Co. vs. Cor-

bin, 108 U.S., 780.

As we view the evidence in this case, we find that Col. Green in

his original invention did not embrace the idea of creating a vacunm

in the lining of the well for the purpose of utilizing the pressure of

the atmosphere, nor did his original patent, either expressly or im-

pliedly, cover or describe the application of this principle; that this

idea of utilizing the atmospheric pressure was an afterthought on

the part of complainants; that to protect it as a part of Col. Green’s

invention it was evidently necessary that the specifications should

be enlarged; that the reissue was obtained for the purpose of cover-

ing thereby this idea of atmospheric pressure caused by a vacuum

in an air-tight tube.

That the complainant now claims that the chief merit of the

—

biel ee,

WILLIAM D. ANDREWS ET AL. VS. GEORGE HOVEY. 45

invention consists in creating a vacuum in the tube and. the earth

surrounding it, where it penetrates the water-bearing stratum, and

through the pressure of the atmosphere forcing a larger and more

continuous supply of water into the tube forming the ‘lining of the

well, and that the application of this principle is provided “for and

embraced within the specifications of the reissued letters patent.

Giving these specifications the construction claimed therefor by

complainants, it follows, in our judgment, that the reissue departs

widely from the original and embraces the application of a princi-

ple not covered by the original invention of Colonel Green, and con-

sequently that the reissued patent must be held void.

In determining this question of the validity of the reissued letters

patent we have assumed that the construction put thereon by com-

plainants and their counsel is legally correct, to wit, that there is

embraced therein the principle of utilizing atmospheric pressure

by creating a vacuum in the tube and about the same where it

penetrates the water-bearing stratum.

We have also assumed, without questioning it, that the theory of

complainants in regard to the creation of a vacuum about the tube

and its effect in increasing the flow of water into the tube through

the pressure of the atmosphere upon the other portions of the water-

bearing stratum is correct. In the view we have taken of the case

it has not been necessary to investigate fully the scientific points

involved in the latter proposition, but we will only say that the ex-

periments made before the court and the evidence adduced on this

question in physical science has not fully demonstrated to our satis-

faction the correctness of the theory relied upon by complainants.

Upon the issue of originality of invention by Col. Green a large

amount of evidence has been adduced with a view of showing

684 that this method of sinking wells had been substantially de-

scribed in various publications antedating Col. Green’s dis-

covery, and also that wells had been sunken by this method at dif-

ferent times and places. We do not deem it necessary to specially

mention more than two of these alleged prior discoveries. Whilst it

cannot well be questioned that it is shown that in some of the other

instances a near approach was made to the method subsequently

adopted by Col. Green, yet we do not think it can be said that these

isolated instances were anything more than mere experiments, not

developed to an extent sufficient to enable the court to say that they

clearly anticipated Col. Green’s discovery. There are two instances,

however, which cannot be sosummarily disposed of, these being, first,

the well at Independence, Iowa, and, second, the wells driven at

Milwaukee, Wisconsin, by EK. W. Purdy.

In regard to the well at Independence the query is whether it was,

in fact, constructed in 1861, as claimed by defendants, or in 1866, as

averred by complainants. The defendants claim that there were two

wells driven at Independence, cne in the early summer of 1861, the

other in 1866, while the complainants aver that there was but one

well—i. e the one driven in 1866, and that the witnesses who place

it in 1861 are simply mistaken In the date.

In several of the cases heretofore heard touching the validity of

46 WILLIAM D. ANDREWS ET AL. VS. GEORGE HOVEY.

Colonel Green’s patent the question in regard to this Independence

well has been presented, and it has been therein held that the con-

flict in the testimony was to be reconciled by holding that the wit-

nesses for the defendants, whilst testifying truthfully to the existence

. and character of this well, had mistaken the date and placed an

event in 1861 which really took place in 1866. If the evidence sub-

mitted to us was substantially the same as that submitted in the

cases referred to we should not feel disposed to re-examine the ques-

tion at issue, but we have had presented to us much additional evi-

- dence largely intended to prove the date of the driving of the well

‘in question by proving the date of other facts which are so connected

’ with the existence of the well that proof of the date of the former

‘unmistakably fixes the time when this well was driven and in use.

Thus a number of witnesses, who probably could not by a mere

effort of memory fix the month or the year when they saw and used

the well, testify to facts which corroborate their recollection that they

saw and used this well when the soldiers were enlisting at Independ-

ence and forming companies, commanded by Captains Lee and Hord,

for the purpose of entering the Union Army.

That these companies were organized at Independence is a fact

beyond dispute. So with other facts, the date of which is not open

to question, such as the time when Sherwood and Kimball kept the

hotel at Independence, the date of Col. Lake’s marriage, the use of

the well by the ericket club, who played cricket upon the grounds

adjoining the lot where the well was driven, and which club was

broken up by a number of its members entering the army in 1861.

By such facts as these the defendants have greatly strength-

685 ened their position in regard to this well at Independence,

3 and while it cannot be doubted that there is much plausibility

in the argument urged against the reliability of this evidence, still

it seems to us that the preponderance of the evidence upon this

question is with the defendant, and that it must be held, as a con-

clusion of fact—

1. That in the early part of the summer of 1861 there was con-

‘structed at Independence, lowa,a driven well, which proved a success.

2. ‘That this well was constructed by driving a tube down into the

water-bearing stratum and attaching to the tube a pump, by which

the water was drawn up through the tube im apparently an inex-

haustible quantity.

It does not appear, however, that any other wells came into.use

by reason of the driving of the one under consideration ; and if the

decision of the court depended solely upon the effect to be given to

the driving of this one well we might well doubt whether it would

not be proper to treat it asa mere isolated experiment, which would

not be held to defeat the rights of an independent inventor.

In regard to what may be called the Milwaukee wells, it is shown

hy the testimony of EK. W. Purdy that in 1849 and 1850 he was in

the business of making wells at Milwaukee, Wis.; that he used iron

rods about two inches in diameter, and made so they could be

coupled together. The first rod was about 16 feet long, the lower

end being in shape of a drill. This rod was worked up and down

WILLIAM D. ANDREWS ET AL. VS. GEORGE HOVEY. 47

by a rope running over a gin pole, the rod being raised up and down,

and in that way the earth was displaced by the rod as it went down.

Tubing of about four inches in diameter was driven down as the rod

progressed. This tube formed the lining of the well. No earth was

removed upward except in case of striking quicksand, when a long

sheet-iron bucket with a valve in the bottom was used to bring up

the quicksand. When the tube had been forced down into the w ater,

if the water did not come to the surface, a pump was used, the tube

to which the pump was attached being placed inside the tube first

forced down, the latter forming the lining of the well.

It is shown by the testimony rof Purdy that he drove a large num-

ber of these wells, and the places where and the parties for whom

they were driven are given in several instances. In some cases the

welis were driven to the depth of 60 and 100 feet.

In these wells thus driven there was used, first, a rod for punctur-

ing the earth, which was driven down to the water-bearipg stratum ;

second, into the aperture thus made a tube was forced, which was

in close contact with the earth and which formed the lining of the

well, and through which the water either flowed naturally or was

drawn by the aid of a pump inserted therein.

Comparing this method of driving wells and its results with that

adopted by Col. Green in 1861 and ‘described in the specifications

attached to the original letters patent, we confess our inability to see

any substantial difference.

686 What he expressly claimed in his original specifics ations

was the process of sinking wells by driving or forcing down

a rod to and into the water under ground and withdr: awing it and

inserting a tube in its place to draw the water through and itis just

this process in substance that was emploved in Milwaukee.

These wells driven at Milwaukee cannot be set aside as abandoned

experiments. Purdy testifie

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Record and brief — William D. Andrews, George H. Andrews, Nelson W. Green and Noah J. Parsons, Appellants, vs. George Hovey | Frix