SUPREME COURT.

Globe, Volume XXIII, Issue 2361, 27 October 1881, Page 3

SUPREME COURT.

CIVIL SITTINGS. Wednesday, Ocxober 26. [Before his Honor Mr Justice Johnston and a Special Jury.] PBANCK V. HOBBS AMD GOODWIN AND C.J.C. The following evidence was taken after our going to press yesterday : Siegfried Francis, the plaintiff, continued:—The club stated that they had agreed to allow Messrs Hobbs and Goodwin to use their totalisators at the spring meeting, and he was also told by Mr Stead that the club would defend any action. The machine was an inferior copy of the machine belonging to plaintiff. There waj a double action to carry out tho record of the events and the total. The machine as thsn used was an imitation of his instrument. When he found

that the club would give Hobbs and Goodwin the right to use it, he got up a sweepßtake so as to exhibit it to the public. The result wbb signed by Dr. Prins as correct. Plaintiff went to the defendants and warned them not to use their machine, and also served them with a copy of the legal notice. Witness showed the interior of the maohine. The defendants were there. Subsequently, in Wellington, he saw a maohine there, and noticed that it was an improvement on the one first used by Messrs Hobbs and Goodwin. He had also seen it used in Ohristchurch three or four times. The witness then went into a detailed description of the machine, and stated that he had offered a reward of £IOO for any one who could tamper with the maohine, a reward which was still open. Any one who desired to unlock the machine would have to do so in front of all the persons prosent, as the machine hung up very high. There was not one of the counterfeit instruments in New Zealand which could not be tampered with. The essential part of the defendant's machine was the same as that of witness' showing the numerals and totals simultaneously, and that the maohine could be locked, which latter was an essential part of both maohines. He claimed tho simultaneous registration of tho units and the totals by the one movement. After the autumn meeting of 1880 plaintiff called on Dr. Prins and left a copy of the legal notice and of the New Zealand Patont Act. Two of the mombers of tho 0.J.0. called on plaintiff before the last mooting on the Saturday before Easter Monday, and asked on what terms he would work hie totalisator on tho course. Plaintiff said ho was not a working man, but would lend his instruments to tho club, but thoy must remember that a writ for the present action was in the hands of his solicitors, and would be delivered in a few days. The gentlemen then went away. Plaintiff stated that he had spent nearly £SOOO in defence of his rights, and the instrument was of the greatest value to him. He had only oome out from Europe to push it on the public After races here last year he saw one of Oorbett's instruments in uso at Oamaru. At Auckland also one was used.

Cross-examined by Mr Button—Plaintiff claimed, as essence of his patent, simultaneous registration and the locking up of the instrument. Ho did not care what power was applied, but still claimed what he said. Some argument between the Judge and oounael ensued, and finally Mr Button resumed his seat.

la answer lo Mr Joynt, plaintiff said that both the defendants' instruments and his own represented his specification. He had taken a copy of the defendants' application for a patent, and it was very nearly the same as his own. He thought the two machines were either equivalent or identioal. The bars both vertical and horizontally worked to the same end in both machines. Also, both machines could be locked, but the manner in which defendants* was done was inferior. He thought defendants' machine was an imitation of his own. The method in which the horizontal and vertical bars were set in motion was copied from his machine. He had offered £IOO to any one who could tamper with his machine. The advertisement had appeared in the Dunedin papers some sixteen months.

Mr Joynt here proceeded to show that the units could be altered without the total being altered; that it was merely the force with which the lever was pressed whioh produced certain results.

Cross-examination continued—The maohino had been used at the Mayor's election in Dunedin, but he did not see it. He had used it for making up sweepstakeß both in Dunedin and here. He had taken it away to Melbourne in July, and brought it baok in January. He had sent it up to the Houses of Parliament in Wellington, and when members saw tho genuine article they legalized the totalisator. He had used it outside the course at Auckland. The club wanted £6O for permission to use it, but he would not give it. The club permitted some swindling imitation to be used, and the police were called in.

Henry Porcher Dance deposed that he knew the plaintiff. He had seen Hobbs and Goodwin's machine used on the course at the Autumn and Spring meetings of 1880. He did not take much notioe of tho machines but they were like the ono in Court. He was present when plaintiff saw Mr Stead, but did not recollect the conversation whioh took place. The report produced (" Dyttolton Times," May 10th, 1881) showed there had been a meeting of the Jookey Club the day before.

This closed the case for the plaintiff. Mr Button opened the case for the defendants, and said he appeared for the Jo -key Ciub. He intended to confine his defence to one particular line, leaving many points to his learned friend (Mr Joynt.) who appeared for Hobbs and Goodwin. His Honor had said how he would construe the specification in the way which he had thought was correct, but he must make some few remarks on it-, as it was the plaintiff's great line. He argued that the plaintiff could only claim a certain combination such as that now in Court. The jury could not fail to see that all the tvidenne led to prove infringement by similarity; merely wont to prove that the same result was produced by each machine. The learned counsel referred at some length to the law on tho subject under consideration, and quoted many cases in support of his argument. At the end of Mr Button's address, the Court adjourned till to-day. This Dax. The Court re-opened at 10.15 a.m. The hearing of this case was resumed. Mr Button, in answer to his Honor, said he did not desire to cro?e-examinc Mr John Anderson, jun., and should now call witnesses for the defence.

Francis O'Brien Loughnan deposed that he was a mechanical and practical engineer. He had examined the two machines now before the Court. The plaintiff's machine was worked by a series of pawls. Tho machiny in the apparatus of plaintiff and defendants for the purpose of averaging the aggregate totals wore similar. The registering power of the machine of the plaintiff was greater than that of the defendants. The pawls and ratchets in the maohine of the plaintiff were for the purpose of changing the reciprooating into a rotary motion. This was the purpose for which they were employed in the defendants' machine. The bars in the machine of the plaintiff were upright, the bar which worked the total being horizontal. The machine of the defendants' was worked in a different way. In the defendants' maohine a geneva stop was used to register the numbers. Tho machines were totally different in principle. Tho geneva stop used in the defendants' machine Btopped the register of the numbers effectually, whilst in the machine of the plaintiff the motion was only in one direction. It was impossible to register a number in the maohine of the defendants without moviDg the handle. The movements in the plaintiff 'a and defendants' machines were alike except tho unit cylinder movement in tho defendants' machine. A new stop had been invented in the machine of defendants. It was impossible to tamper with the machine of the defendants. When the defendants' machine was locked, it was impossible to got at it and register a number without turning a handle. The handle could not bo made to register back. The sliding table and the pawl guide in the defendants'muchine was new. Ho was of opinion that the maohine of the defendants was a most ingenious and now invention. He had experimented on the machine of the plaiatiff as to the possibility of tampering with it, and had arrived at the same result as Mr Joynt. He was warned by the plaintiff not to break it, though he was not doing any harm to the maohine. He found that by genfly moving the lever ho could register a unit, and then, by drawing the lever slowly back, neither the unit nor the aggregate would be registered. Theoretically this machine was intended to do this, but it did not do so practically. The pawls and tho ratchets in defendants' maohino wero combined. Any carelessness in moving the handle of the machine of the plaintiff, or a fraudulent movement of the handle, would fail to register the numbor. This could be seen from the manner in which the plaintiff's maohino was constructed. A defect of this kind was impossible in a machine like that of the defendants. I'he principle of the machines as regarded construction did not dopend on the accuracy of the fittings. The bell in tho defendants' machine was an additional guarantee of the good faith of the owners. When the machine of tho plaintiff was looked, it could be tampered with by using a pair of pliers. Tho foreman of tho jury asked whether the machine of the defendants was liable to the same defect in this respeot as that of the plaintiff. When the machine of the defendants was locked it could not be moved either one way or the other, and it was a more effective maohine than that of the plaintiff's and more perfect. He was of opinion that bringing defendants' machine to zero it was much safer, but ifc was not so simple. The

plaintiff's maohine was more simple than the defendants', but not so safe. It was possible to throw the plaintiff's maohine baok to zero in any diso after it was looked, but it was not possible to do so with defendants'. He had conceived the idea of a maohine like the one now in Court about three years af o. The witness was cross-examined at some length by Mr Harper, but nothing material was elicited.

James Godfrey Warner deposed that he was a mechanioal engineer. He had examined both the machines. The only resemblanoe in them was that they rocorded the same result. [The Witness then proceeded to describe the points of dissimilarity between the two maohines.] Witness considered the moohanism in the defendants' maohine for moving the cylinder as a new one. It affects its object better than that in the plaintiff's machine. It displays inventive genius. It affects more than the plaintiff's maohine. [Left sitting.^