Page:Federal Reporter, 1st Series, Volume 9.djvu/620

 MILLER V. FOREE. 6U5 �small way, at a remote place in Arkansas, of plag tobaeoo. Both his means and facilities for carrying on his business were exceedingly limited. He used wooden moulds, and finding that the faces of his moulds were such as to leave the tobaeco with a rough finish, he made an effort to remedy the matter by plating the moulds with metal plates fastened on by screws; and discovering that, when the moulds thus plated were used, the screw-heads made an impression upon the finished tobaeco, he conceived the idea of marking the tobaeco with his name, and began at once a course of experimenta to mature and develop the thought and apply it to practical use. But he found dif- ficulty in giving a satisfactory finish to the tobaeco and making the impression permanent. At this point Lee, his foreman, came to his assistance, and advised him to buy a finisher. Thereupon Smith ordered a finisher from a firm in Louisville, whose name is given, and after further consultation with Lee and one G. W. Davidson, a jew- eler, he employed the latter to make him two zinc plates, with the letters of his name raised thereon, whieh he oceasionally used in marking two tobaeco plugs out of the 180 plugs in eaeh finishing pro- cess, at intervais, from August, 1875, to April, 1876, at which last- named period his factory was seized by the government and his bus- iness suspended. �Now if, as bas been stated, Smith's evidence is true, the process so discovered and applied by him is a elear anticipation of complain- ants' disoovery. The explanation, and the manner in which it bas been told, are well calculated to impress one with confidence in its truth. Besides, he is confirmed in every material partieular by Lee. �But complainants have exainined quite a number of witnesses, who, in addition to testimony impeaching the general character of both Smith and Lee, testify that they bought and sold tobaeco man- ufaetured by Smith during the period mentioned, and that they had no recolleetion of having seen any plug of tobaeco marked with Smith's name. This evidence is, notwith standing its negative char- acter, entitled to a good deal of weight. �But defendants rejoin, first, by argument and then by evidence. Their argument is that Smith, being a manufacturer in but a very small way, using his plates for marking only at intervais, and then only marking, say, one or two plugs out of 180 in eaeh finishing pro- cess, it is not unreasonable to suppose that Smith may have marked tobaeco in the manner and by the process described by him, and that none of the witnesses examined by complainants should have notieed any of the marked plugs. And, by way of further rejoinder, ��� �