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8 F.(20) 634 good general description of all the figures and in fact such was his duty. His contenappearing upon the lists as presented, tions are well made, and the result is that which, as stated, are certified as true copies, neither the state, county, nor city is entiso that from an examination of these lists tled to recover the taxes claimed in this it is impossible to tell whether the figures case. represent dollars, cents, or either, or wheth- [4] The contention is made by counsel in er in reality they represent anything un- behalf of the state, county, and city that less you resort to inference and conjecture, the presumption is in favor of the regulariwhich the Supreme Court of the United ty of the acts of the officers, whose duty it States said could not be done. The whole was to make the assessments in question. matter would be left to inference as to This contention is correct, and such is the what was intended by the figures appearing, presumption of law, but the parties seeking and in some instances even conjecture or to collect the taxes in this instance offered inference would be wholly insufficient to en- as exhibits the assessment rolls showing able one to determine just what was meant what had been done. Had no proof been by these figures.

offered, the presumption would have been [3] If it could be said that the figures that the acts of the officers were valid and under the column headed by the dollar mark regular, and upon such presumption a derepresented dollars, one would have to con- cree might have been based, but, when jecture as to whether that would apply to proof is offered by either party which shows the figures to the right of such column and facts contrary to the presumption, as above how far it should be so applied. It is also stated, the parties are bound by such proof. left to conjecture as to whether any por- The plaintiff in this case offered the proof. tion of the numerals shown would represent It is further contended in behalf of the cents. In other words, one is left wholly parties seeking to collect the taxes that to inference in determining the meaning of when the taxes became delinquent the deany of the figures appearing, for no regu- linquent lists in the hands of the proper larity exists in the use of the figures or authorities had the force and effect of a the columns or the spaces. Furthermore, judgment of a court of competent jurisdicwould a dollar mark' merely placed at the tion. If this be conceded, yet, as held by head of a column be construed to apply to the Supreme Court of Tennessee in the all figures appearing in that column. If cases above cited, such judgment would have so, then what would indicate whether any to be based upon a valid assessment, and figures represented cents. The Supreme should contain within itself sufficient eviCourt has said that a red line was insuffi- dence of its regularity as to warrant proper cient, and certainly it would be. In addi- proceedings thereunder, and in almost an tion to this the great majority of the fig- identical case where it was sought to enures are to the left of any red line which force the judgment it was held that the by any inference could be held to be intend- same could not be done.

It is further contended that a distinction ed to divide the amount of dollars from the amount intended as cents. Manifestly too is to be made in a proceeding where a parmuch would be left to inference. While the ty is seeking to enforce a title to property dollar mark is a well-recognized symbol, it derived from a sale made for taxes, and should be in such proximity to the figures where a state, county, or municipality is as to clearly indicate to what figures it was

seeking to collect the taxes. The distinction intended to apply..

sought to be here drawn is not warranted

in this case. As shown by the Tennessee The owner of the property assessed was

authorities above cited it has been uniformentitled to have the property so assessed as ly held that defects such as appear in the that he could determine without resort to assessment sheets presented in this case renconjecture the value placed thereon and the der not only any subsequent proceedings taxes assessed against the same.

The as

such as an effort to enforce a tax title void, sessing officers could have so assessed the but the assessment itself is void. property. They did not do so. They did

The other exceptions made to the report not comply with the law, and under the law

of the master are not determined, inasmuch their assessments as presented in this case as the one here considered is controlling. are void. The receiver had the right to The report allowing the claims for taxes present the questions here to be determined, will be set aside and such claims disallowed.

CASEY et al. v. BENNETT et al. a trailer provided with rearmost wheels, of (District Court, S. D. California, s. D.

flexible twofold means of connection beDecember 31, 1924.)

tween said two portions, one part of said

connection being applied above and in No. G-117-T.

front of the driving axle, and the other 1. Patents 328--Casey, 1,445,754, for road part of said connection being applied in tractor, held valid and infringed.

the rear of and below the driving axle, with The Casey patent, No. 1,445,754, for a road the resultant effect specified of keeping the tractor, being a combination of a Fordson tractor with a semi-trailer held not anticipated, and guiding wheels always at normal engagefor a pioneer invention, which entitles it to a ment with the ground.” broad construction; also held infringed.

And claim 3 reads thus: 2. Patents C 226Adoption of patentee's

“3. In a road tractor, the combination preferred methods not essential to “infringe- with a wheeled tractor portion provided ment."

with a driving axle and guiding wheels, and A patent is infringed when there is an ap

a trailer provided with rearmost wheels of propriation and employment of the inventor's concept, as described in his claims, though there flexible twofold means of connection bemay not be adopted the preferred methods de- tween said two portions, one part of said scribed in the patent.

connection being applied substantially [Ed. Note.-For other definitions, see Words above the driving axle, and the other part and Phrases, First and Second Series, In- of said connection being applied in the rear fringement.]

of and below the driving axle, with the re3. Patents Om 236—Change of form, though an sultant effect specified of keeping the guidimprovement, will not avoid infringement.

ing wheels always at normal engagement Merely changing the form of a patented in

with the ground.” vention, though the change may be an improvement, will not avoid infringement.

The device under consideration is a road

tractor, consisting of the well-known FordIn Equity. Suit by Henry J. Casey and son tractor in definite combination with a the Trailmobile Company against Harold semi-trailer having rearmost wheels. The C. Bennett and Ernest W. Bennett, part problem confronting Casey was to so conners as the Utility Trailer Sales Company, nect and combine the two instrumentalities and the 'Utility Trailer Manufacturing that as a resultant he would produce an Company. Decree for complainants. auto . truck of simplicity, economy, and

William R. Wood, of Cincinnati, Ohio, cheapness in construction and operation, and Frederick S. Lyon, Leonard s. Lyon, wherein the distribution of the weight of and Henry S. Richmond, all of Los An- the load would be advantageous both to the geles, Cal., for plaintiffs.

co-ordinated machine and to the roadbed. William L. Connor and Nolan, Rohe & Prior to Casey's conception, the use of the Freston, all of Los Angeles, Cal., for de- Fordson tractor had been limited almost fendants.

entirely to agricultural activities. It was

designed solely for agricultural uses. It McCORMICK, District Judge. Suit in had been an efficient mechanical draft horse equity to restrain infringement of patent, on the farm or in the orchard, but its utiliserial No. 1,445,754, granted to Henry J. ty at that time as a commercial draft inCasey on February 20, 1923. Casey, the strumentality on the roads and highways patentee, and the Trailmobile Company, a was generally unknown and was also imcorporation of Cincinnati, Ohio, the exclu- practicable. sive licensee within the United States, are When connected to a plow or other farm plaintiffs, and the Utility Trailer Sales implement by its single draft bar hitch, the Company, a copartnership, and the Utility Fordson tractor functionated admirably; Trailer Manufacturing Company, a corpo- but, when attempts were made to successration, are defendants. The defenses as- fully hitch or connect it directly to a loadserted are lack of invention, no infringe- ed wheeled semi-trailer, it failed to operate ment, and anticipation.

satisfactorily. There was a constant tend[1] The specific provisions of the Casey ency of the front end of the tractor to tip patent, which it is alleged are infringed by upward, thereby preventing the driving defendants, are claims 1 and 3 of said pat- wheels of the tractor from developing adeent. Claim 1 is as follows:

quate pulling power upon the loaded trail“1. In a road tractor, the combination er. Traction of the guiding wheels of the with a wheeled tractor portion provided tractor was impaired by the downward and with a driving axle and guiding wheels, and backward pull, through the hitch or con

3 F.(20) 640 nection with the trailer, and in consequence be so augmented as to disqualify them from thereof the combination was an impotent functioning before the driving wheels can and inefficient mechanism.

do their work. The remedy I have found The manner by which Casey endeavored effectual is to impose excessive weight on to surmount this difficulty and solve the the guiding wheels, and preferably to proproblem of combining the Fordson tractor 'vide means for imposing a portion of the and a trailer with rearmost wheels into an weight of the trailer load upon the tractor efficient commercial transportation unit is between its front and rear wheels, said clearly described by the patent in suit, and means being adapted to avoid any interis best illustrated by its teachings, as fol- ruption of the pulling power of the tractor lows:

upon the trailer. “When a Fordson tractor is hitched to a "By my invention, provision is accordplow, the draft upon the plow follows the ingly made so to combine a trailer and a line of a bent lever beginning at the toe of tractor as to remove the tendencies referred the plowshare and terminating at the for- to, and thereby to maintain, under such vaward end of the tractor. In such case, the ried conditions as may occur in service, the driving wheels, located approximately at traction efficiency of the machine. In acthe angle of the said bent lever, are always complishing the aforesaid main object of drawn towards the earth and into gripping my invention, numerous minor problems are engagement therewith by the oblique down- presented for solution, and my invention is ward pull of the plowshare. At the same devised to that end, as hereinafter set time, the said downward pull has a tenden- forth." cy to lift the forward or steering end of Following the foregoing the patent dethe tractor. The operation of the driving scribes in detail and by reference to draw.wheels also contributes towards the same ings the mechanical methods employed or end. The consequent effect is maintain preferred by the claimant. That Casey was a substantially uniform load upon the guid- the first to solve the problem of co-ordinating wheels, not only without impairment, ing the Fordson tractor with the trailer but with increase, within certain limits, of having rearmost wheels into a workable and the purchase upon the ground of the trac- efficient commercial transportation unit, tor wheels which propel the machine. suitable for road service, has in my opinion There is, however, even in plowing, a been clearly established by the evidence. weight of load, say 2,500 pounds, beyond He produced a new transportation agency, which the front wheels will leave the ground which not only lessened the wear and tear and cease to functionate.

on the roads, but which also served to re"Attempts to exceed the use of the trac- duce the cost of transportation as well. tor to road service by hitching it directly to His concept, as shown by the patent and & wheeled trailer have proven unsatisfac- as demonstrated by the evidence in this tory, for the reason that, the down-pulling case, was pioneer and primary. The patload of the plow being lost, either the driv- ent is entitled to a broad construction. ing wheels, although equipped with rubber Adams Electric R. Co. v. Lindell R. Co., tires, fail adequately to functionate in con- 77 F. 432, 23 C. C. A. 223; Schroeder v. sequence of their diminished purchase upon Brammer (C. C.) 98 F. 880. There had the ground, or they lift the guiding wheels been experiments by others with other types from the ground before said driving wheels of tractors, but none of these were condevelop adequate pulling power upon the fronted with or had in mind Casey's probloaded trailer. That result may be account- lem, and certainly no one had previously ed for by the fact that, if the trailer axle conceived or developed the thought which be higher than that of the driving wheels, provided and enabled Casey to effectively the effect will be to apply driving power at combine the two mentioned instrumentalithe angle of an inverted bent lever, with ties into a workable, useful, and economical the result that the operation of the driving commercial transportation unit. wheels will tend to straighten the lever, and It was by means of twofold flexible conthereby lift the driving wheels out of con- nections that Casey solved the problem. tact with the roadbed, and cause them to An upper .connection, acting principally as slip thereon without driving effect. The a weight-imposing member, although partly obvious remedy in such a case would ap- as a draft and steering connection, and bepear to be to lower the trailer axle; but it ing applied either above and in front of is found that, if that be done, the lifting the driving axle of the tractor, or substantendency upon the guiding wheels will then tially above the driving axle thereof, and a lower flexible connection, to function as a the defendants is a fac simile of the invendraft agency, being applied in the rear of tion. National Hollow B. B. Co. v. Interand below the driving axle of the tractor. changeable B. B. Co., 106 F. 693, 45 C. C.

3 F.(20)-41

[2] The inventor in his patent expresses A. 544. certain preferences as to the mechanical The only remaining questions are whether methods of attaching the two connections • the defense of anticipation has been estabto the tractor and trailer. Some of these lished—whether the defendants' claim that methods are not literally followed by de- Casey invented nothing because of the state fendants in their construction. But a pat- of the prior art has been sustained by the ent is infringed when there is an appropria- evidence. I find such defenses have not tion and employment of an inventor's con- been established. "A machine or combinacept as described in his claims, although tion which is not designed by its maker, there may not be adopted the preferred nor actually used nor apparently adapted methods of attachments which the inventor to perform the function of a patented madescribes in his teachings. Winans v. Den- chine or combination, but which is discovmead, 15 How. 330, 14 L. Ed. 717; West- ered in a remote art, and was used under ern Electric Co. v. La Rue, 139 U. S. 601, radically different conditions to perform 11 S. Ct. 670, 35 L. Ed. 294.

another function, neither anticipates nor I am persuaded by the evidence to find limits the scope of the patent.” National that the construction of the defendants as Hollow B. B. Co. v. Interchangeable B. B. exhibited to the court and described by the Co., supra. testimony is a substantial embodiment of I have previously mentioned the state of Casey's concept as disclosed by claims 1 the art at the time of Casey's concept. The and 3 of the patent. The twofold connec

Fordson tractor was then a recent creation. tions are made in substantially the same It is yet sui generis. The record convinces manner and for the same purposes. The me that its practical use as a commercial lower connection, in so far as function and draft horse in combination with a semipurpose are concerned, is identical. The trailer was not appreciated or demonstrated results claimed by Casey are attained in until Casey's inventive faculties were set in the same way by the Utility construction, motion. although by instrumentalities that have Several earlier patents have been preprobably improved forms. The only differ- sented by defendants as tending to prove ence discernible to me between the Casey anticipation. Many of them were considpatent and the Utility construction is in ered by the Patent Office and were examthe mechanical method of diffusing the ined in connection with Casey's application weight, which is imposed upon the tractor for the patent in suit. Specific mention is by the upper connection. The weight of made of some of them in the file wrapper the upper connection is applied in substan- of the Casey patent. Only one pertained tially the same manner, at substantially the definitely to the Fordson tractor, and an ensame place, and is intended to and does tirely different problem confronted the apperform the same function, and accomplish plicant and inventor in that case. The Patthe same result; but in the Utility con- ent Office was of the opinion, after examstruction, because of a modification in the ination and analysis, that none of the earlishape of the upper connection, whereby er patents were sufficient to interfere with weight is suspended on pins below the hous- or to defeat Casey's claims. This concluing of the rear axle by means of yokes, sion of the Patent Office, while not controlthere is probably an improvement. In the ling on the court, is very persuasive, and Casey patent the load is superposed. is tantamount to prima facie evidence

[3] Merely changing the form of an in- against the claim of anticipation, in so far vention will not avert the charge of in- as all such patents are concerned. I have fringement, although the change may be an

satisfied myself, however, by an independimprovement. As long as the inventor's ent study of all patents introduced, that the idea and concept is utilized, and the main Casey concept and claims are not anticipatcharacteristics of the patent retained there ed or affected by any of them. In my opin. will be infringement of a pioneer patent. ion, all of them relate to and concern subThe distinguishing characteristics of Cas- stantially different instrumentalities or meey's invention are not changed in any sub-chanical problems than those which constantial manner by the Utility construction. cerned Casey. All of the elements of the invention are It is worthy of note, in considering the adopted, and the combination fabricated by defendants' claim of anticipation and lack

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3 F.(20) 643 of novelty, to advert to the evidence in this PARTRIDGE, District Judge. This is a suit, which shows that until the defendants motion to exclude and suppress evidence. inspected, examined, and studied a The defendants are charged with a violation struction of the Trailmobile Company, of the National Prohibition Act (Comp. St. which is an admitted embodiment of the Ann. Supp. 1923, § 1013814 et seq.), and Casey patent, they had never made any ef- the Tariff Act of 1922 (42 Stat. 858), and fort or experiment to solve the problem of also with a conspiracy to violate those acts. efficiently combining a Fordson tractor with As overt acts, the indictments charge that in & semi-trailer, so as to form the two into pursuance. of the conspiracy defendants a commercially successful transportation loaded the steamer Quadra, at Vancouver, unit. Under such circumstances, the claim with a large quantity of liquor for delivery that Casey invented nothing has little merit here. She sailed to a point opposite San as far as defendants are concerned.

Francisco, on the high seas, and, it is allegA decree is ordered for the plaintiffs in ed, delivered to various smaller vessels conaccordance with the foregoing memorandum siderable quantities of liquor, which these opinion, and solicitors for plaintiff will pre

boats landed on our shores. pare the same under the rules.

The Quadra was seized by the government boats, brought into this port, and her cargo of liquor removed to government

warehouses. Her officers and crew were ardj

rested, and, together with various other perafturit

223 zu 593, 75, 793 sons, are the defendants in these cases. UNITED STATES v. 'FORD et al.

The affidavit of the defendants, on the (District Court, S. D. California, N. D. Janu- ; motion to suppress, alleges that the Quadra ary 5, 1925.)

was boarded and seized more than four Nos. 15829–15831, 15914, 15915. 331 leagues from shore, and further out than she

could sail in an hour. The captain of the 1. International law m5 Intoxicating liquors

few 246–Seizure of Canadian vessel and liq: government vessel, on the other hand, makes uor cargo off shore held lawful under treaty oath that she was within an hour's steamwith Great Britain.

ing. For the purposes of this opinion I Seizure of a Canadian vessel at sea within assume that the government official states the distance from the coast of the United the facts. States permitted by the treaty with Great Britain of May 22, 1924, held not in violation of

[1] The question, then, squarely presentinternational law, and justified under the treaty ed, is this: Where the government seizes a by reasonable cause to believe that she was vessel, charged with violation of our laws, transferring liquor from her cargo to other more than one league and less than four vessels, to be carried ashore.

from land, can the vessel and her.cargo be 2. Criminal law Om97(3), 395–Intoxicating used as evidence in a criminal prosecution?

liquors 167-Officers and crew of foreign The question presented is one of the utvessel discharging cargo of liquor into other most importance. This nation, by a constivessels to be transported in violation of law are aiders and abettors; the court of the dis. tutional amendment, and appropriate legistrict has jurisdiction, and seizure admissible lation, has declared that intoxicating liquors in evidence,

shall no longer be sold or distributed here. The officers and crew of a foreign vessel That change in our fundamental charter, engaged in transferring liquors at sea to other and the accompanying legislation, has vessels, to be transported in United States waters in violation of law, are aiders and abet brought about a condition never even aptors in the offense, and as such liable as prin. proached in the whole history of criminal cipals, the court of the district into which they jurisprudence. The violators apprehended are brought has jurisdiction to try them, and run into the thousands in this district alone, the vessel and cargo, lawfully seized, are ad- and there is every reason to believe that missible in evidence.

only a very small percentage of those who Criminal prosecution by the United States Such a condition has congested our courts

violate the law are caught and charged. against George Ford and others. On motion by defendants to exclude and suppress to cope with the situation. The delay re

to such a degree that it is almost impossible evidence. Denied.

sulting from this overwhelming condition Sterling Carr, U. S. Dist. Atty., of San has encouraged other thousands, not alone Francisco, Cal.

in persistent violation of this law, but in Kenneth M. Green and Frank J. Hen- the most open and brazen defiance of our nessy, both of San Francisco, Cal., for cer- government and its courts. Moreover, re tain defendants.

spect thus lost, and fear of punishment di

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