down that the teeth on the drum runs through, and it had a wide belt with rivets through it that carried the vines into the drum, and it had also a fan that blowed the trash away; had a stemmer with saws, vibrating table; the stemmer vibrated, swung on hinges, riveted together."

A witness by the name of Thomas M. Lilliston, introduced by the Benthall Company, among other things, testified that he built the Hundley machine, and in constructing the stemmer he followed the instructions of Ben Hicks. He further stated that this machine was constructed in 1901, and said that the stemmer contained a shaking trough. He testified in part as follows:

"Q. Do you know and are you familiar with the machine that has been introduced in evidence here on behalf of the defendants as Defendant's Exhibit E3, Hundley machine? A. Well, I built the machine. Q. Do you mean that in building the Hundley machine you followed the construction of the stemming device which was in the machine that Ben Hicks brought to your place? A. Yes; so far as its principles were concerned. Q. Give us as good a description as you can of the stemming mechanism that was in that old machine. A. Well, it was a box or trough with a slatted bottom with gin saws between those slats, or course mounted on a shaft, which, as I recollect it, was run by a sprocket chain, and the trough did shake, but I can't remember the device that shook it; I can't remember. Q. Give us the date as near as you can when this old machine of Ben Hicks was sent to your place. A. It was in the winter of 1901, I think, in December I think is right. Q. Are you certain as to the year? A. I feel sure about that. Q. Was the operation of picking and stemming peanuts performed by these Hundley machines-I mean by that the four machines which you built, one of which is here in evidence as Defendant's Exhibit E3-was the work satisfactory? A. Yes. Q. Do you mean, Mr. Lilliston, that those machines did a good job of picking and stemming peanuts? A. I can think of only one other way of answering that question as I think satisfactory, and that is, the quality was very good. The quantity was not there. Q. Do you mean by your last answer that the machine was of small capacity, and that it was of such small capacity that you would not regard it as doing a good job of picking and stemming peanuts? A. Its capacity, in my opinion, has nothing to do with the quality of the work that it did do. The work it did was satisfactory. Q. What was its capacity? A. From 10 to 20 bags a day of ten hours."

We think the testimony establishes the fact beyond a reasonable doubt that the John Hundley machine had a slatted bottom stemming. trough with saws extending through the slats and the stemming trough mounted to vibrate back and forth, and was in use in 1901, long before the Benthall patent in suit was applied for or granted. However, it is insisted by complainant that its device has a tendency to hasten the passage of the peanuts. This may be true, but in our opinion involves no invention. It is something that would have occurred to any skilled mechanic or even a layman. The evidence shows that the capacity of this machine was 10 to 20 bags of peanuts a day, and under these circumstances was a practical and useful machine, and could not be said to be a simple experiment.

However, it is insisted by the complainant that the Ben Hicks machine used as an exhibit had been made over to meet the facts of this case. This contention is unwarranted by the evidence, which is to the effect that in 1901, four years anterior to the time Benthall applied for a patent or made any machines, the patent was granted to Ben Hicks,

and this patent discloses a stemmer as it appears in the machine at this time with the exception of the movement. The fact that the Ben Hicks machine contained the movement is shown by a number of witnesses, as well as the production of the Hundley machine in precisely the condition in which it was built by Lilliston for Hundley in 1901. The complainant further insists that since 1908 Hicks had discarded the old machine and had been using a new machine which he had purchased at that time from the defendant. It was shown by the testimony that the old machine, while embodying every feature contained in the Ben Hicks machine at this time, was constructed in a crude manner and had been thrown aside and exposed to the weather, and that some of the parts had rotted away, in consequence of which these parts had been renewed. It further appears that the renewed parts were painted yellow so as to enable one at a glance to distinguish the renewed parts from the original. Hicks, in testifying on this point, among other things, said:

"Q. Have you or have you not recently done any work on that machine? A. Yes, sir. Q. What have you recently done to that machine? A. Put on all that yaller work you see on dere, sir. Q. Why did you recently put on these parts that are painted yellow on this machine? A. The old part had rotted down, part of it, and we had to put on dis part. Q. What did you put on these yellow parts for? A. We put dese yaller parts on dere to show you how it was fust. Q. Did some one help you put these yellow parts on? A. Yes, sir: Mr. Little. Q. What can you say about the parts that are not painted yellow on this machine? A. I built that in 1900. Q. Do you mean that you made the parts that are not painted yellow on this machine in 1900? A. Yes, sir."

Witness Little, who reconstructed the Ben Hicks machine, testified as follows regarding this point:

"Q. Tell us about how these yellow parts came to be put on and just how and by whom you were instructed in putting them on. A. Well, those new parts was rotten down, and when we brought the machines to the VirginiaCarolina Peanut Picker shops I had instructions from the company to take Ben Hicks to the factory and renew these old rotten down parts with new parts according to his instructions. Now, while Ben Hicks was out of the shop I did put on sprocket wheels on the saw mandril and shaft that rotates the saw mandril and chain on same, but when Ben Hicks come back to the shop he told me it was not like it was in 1900; that he had pulleys made out of round poles about four inches in diameter on these mandrils and shafts with belt on same, with a tightener or idler in front of the back shaft or mandril. Then I taken sprocket wheels and chain off and made pulleys out of round poles and put on mandrils and shaft that rotates the mandrils and belt on same, according to his instructions. Q. Did you put any other parts on this machine while he was out of the shop? A. No, sir. Q. Who was around the factory other than yourself and Ben Hicks when you were working on this machine? A. Nobody but Ben Hicks and I. Q. Did or did not you put on any parts on this machine according to your own ideas? A. I did not, with the exception of those sprocket wheels that I mentioned in answer to question 17. Q. How about the parts on this machine as it now stands that are not painted or touched with yellow paint? A. Those were on there when I brought the machine down here from Ben Hicks, with the exceptions of that feed box which was not on the machine, but put it on according to Ben's instructions, and he said it was put on in 1900. Q. When was it that you were working on this machine under Ben Hicks' instructions? A. Week before last. Q. While you were working on this machine, did or did you not

bore any holes through the old parts which are not painted yellow? A. I bored one hole in the right-hand post and front of machine to strengthen post, as post was decayed or rotten and would not hold bolts for boxes. That's the only hole 1 bored in the old parts. Q. Do you know who had custody of this machine from the time it arrived in Suffolk until it was brought to this room and put in evidence as Defendant's Exhibit, Ben Hicks' Machine, E1? A. Why, I had the custody of it myself. Q.' How long did you have that machine over at your factory before Ben Hicks showed up? A. Ben Hicks was there eight hours before it arrived. Q. Did Ben Hicks have any drawings or diagrams to show you how to put this machine together? A. No, sir. Q. How long were you, Mr. Little, in making these repairs to this machine? A. About three days."

From the foregoing we think it is clearly established that the Ben Hicks machine produced as an exhibit is precisely as it was in 1900 when built and used up to 1908, at which time, as we have stated, it was discarded by Hicks for a new machine with greater capacity, but involving identically the same principles.

[1] It is well settled that the prior use of an invention for two years invalidates a later patent, even if the patentee has no knowledge of the same. In the case of Reed v. Cutter, 20 Fed. Cas. 435, No. 11,645, 1 Story, 590, Judge Story, who held a patent invalid where prior use was shown, said:

"Under our patent laws, no person who is not at once the first, as well as the original, inventor, by whom the invention has been perfected and put into actual use, is entitled to a patent. A subsequent inventor, although an original inventor, is not entitled to any patent. If the invention is perfected and put into actual use by the first and original inventor, it is of no consequence whether the invention is extensively known or used, or whether the knowledge or use thereof is limited to a few persons, or even to the first inventor himself."

In Egbert v. Lippmann, 104 U. S. 333, 26 L. Ed. 755, the following is to be found:

To constitute the public use of an invention it is not necessary that more than one of the patented articles should be publicly used. The use of a great number may tend to strengthen the proof, but one well-defined case of such use is just as effectual to annul the patent as many."

In the case of Evans v. Eaton, 3 Wheat. 454, 4 L. Ed. 433, Chief Justice Marshall said:

"Admitting the words 'originally discovered' to be explained or limited by the subsequent words, still, if the thing had been in use, or had been described in a public work, anterior to the supposed discovery, the patent is void. It may be that the patentee had no knowledge of this previous use or previous description; still his patent is void; the law supposes he may have known it."

In the case of Coffin v. Ogden, 85 U. S. 120, 21 L. Ed. 821, which is considered the leading case on this subject, Justice Swayne, who wrote the opinion, said:

"Here it is abundantly proved that the lock originally made by Erbe 'was complete and capable of working.' The priority of Erbe's invention is clearly shown. It was known at the time to at least five persons, including Jones, and probably to many others in the shop where Erbe worked; and the lock was put in use, being applied to a door, as proved by Brossi. It was * tested and shown to be successful. These facts bring the case made by the appellees within the severest legal test which can be applied to them. The defense relied upon is fully made out."

241 F.-7

The following cases are very much in point: Interurban Railway & Terminal Co. v. Westinghouse Electric Manufacturing Co., 186 Fed. 166, 108 C. C. A. 298; American Roll Paper Co. v. Weston, 59 Fed. 149, 8 C. C. A. 56; Sipp Electric & Machine Co. v. Atwood-Morrison Co., 142 Fed. 149, 73 C. C. A. 367. In the last-named case the court said:

"In support of this contention, the appellees quote the oft-repeated declarations of courts that the burden of proof as to prior use rests upon the defendant, and that every reasonable doubt should be resolved against him, and that courts require that the proof or prior use shall be clear and satisfactory. It is undoubtedly the duty of courts to exercise, as in nearly all cases they are careful to declare, the utmost caution in scrutinizing and considering the testimony offered to establish a prior use. Courts have frequently taken the ground, under the particular circumstances of the case before them, that where a long time has elapsed since the alleged use, and the fact depends upon the fading recollection of a single witness, that an exhibit of the device or thing actually used must accompany the affidavit. There is, however, no hard and fast rule as to this. In this, as in other cases, the weight and effect of testimony must be passed upon, and a conclusion as to the existence of an alleged prior use will be reached if the evidence thereof is clear and satisfactory to the judicial mind."

[2] The testimony in this case is derived from many witnesses who had an opportunity to examine the Ben Hicks machine, and also the John Hundley machine. However, this is not a case wherein the testimony is based entirely upon the recollection of witnesses. The original Ben Hicks machine and the John Hundley machine were exhibited in the court below, and also in this court, where an opportunity was afforded to see these machines just as they were in 1901 and as they were when operated since that date. Ben Hicks in his testimony stated that his machine was used publicly each successive year from 1900 until 1908, and that it was operated successfully. On this point he testified as follows:

* *

"Q. Ben, you say that in 1900 or in 1901 you built this machine, the one exactly as it is now; I mean by that having the same kind of parts. Who did you show that machine to when you got it built? A. Well, now, I couldn't tell you, for there was so many came there to see such a curiosity, a piece of nigger enterprise; I can't tell you. Q. Did you ever use this 1900 machine you have been talking about? A. Yes. Q. Tell us about how you used it? A. I used it; we turned with a crank. Q. What did you use it for? A. Picking off peanuts. Q. How long did you use this machine to pick and stem peanuts? A. I used it until Mr. Myrick bought me out. Why didn't you use the machine after that time? A. Well, because I bought a new picker from Mr. Myrick. Q. When did you buy this new picker from Mr. Myrick? A. Well now, gentlemen, you will have to give me a chance to think again. I haven't got no education. I think it was in 1908. I think so * I would not be exact, but I think it was 1908. * Q. Ben, just before you bought that machine from Mr. Myrick what machine were you using to pick peanuts? A. I was using a little machine (indicating E1)."

now.

John White, another witness, testified as follows:

*

Q.

"Q. During the time you have known Ben Hicks did he ever build any peanut machine? A. Yes, sir. Q. What kind of a peanut machine did he build? A. I do not know the name of it; it was a little small picking machine. Q. Did or did you not ever help Ben Hicks in building or working on the picking machine that you have mentioned? A. Yes, sir; I did. Q. What did you do? A. Well, I was around there helping to handle, cut and saw, weld iron, etc.

Q. Please tell us something about the machinery of this peanut picker machine; what did it do? A. It picked peanuts. Q. What do you mean by picking peanuts? A. I mean that it pulled them off and stemmed them.

* Q. Why do you say the fall of 1900? A. Well, I know it was then because I helped him work on it, maybe August or September of that year, and got it ready for the fall crop. * * * Q. I mean how often was it used? A. Well, he used it a year or two, or more, I could not tell you. He used it until he got him a larger one. Q. Did you ever help him more than one year use the machine you and Ben built? A. Yes, sir. Q. How many bags of peanuts did you pick off in a day with the machine that you and Ben built? A. About six bags, five or six, not over six."

J. T. Johnson, Jr., testified as follows:

"Q. How did the buying peanuts from this machine cause you to see the machine? A. The reason that I saw the machine the peanuts were so clean that I told Ben Hicks that I thought it was impossible to pick such peanuts so clean with a picker without stems and trash, and he told me that they were picked by the picker and were not repicked by hand. Well, it was a curiosity to see a machine that could pick peanuts at that time, so I went over to see the machine."

William R. Pope, a witness, also testified, among other things, that the first peanut picking machine that he ever saw was one made "by a colored man named Ben Hicks." Witnesses John L. Scott and Junius F. Faircloth testified that they saw this machine in operation in 1900, 1901, and 1902, as we have already stated.

It is well settled that, where the use is already established, it requires full, clear, and convincing proof to overcome the same. In this connection we think it significant that no witness was offered to contradict the evidence of the witnesses who testified as to this point. Thus it will be seen that the existence of the Ben Hicks patent in 1901 was established, in which was shown the same principles found in the Ben Hicks machine of to-day except the movement.

It is also clearly established by the evidence of a number of witnesses that the movement was in the original Ben Hicks machine; that this evidence is corroborated by the existence of the Hundley machine, and these machines have been in use so long that the public has thereby become invested with the title which, under the law, precludes a patent thereon. However, it is insisted by complainant that the Ben Hicks machine was an abandoned patent, and they cite in support of this contention the fact that Ben Hicks said that he threw it on the "dunghill.". We do not think his evidence is susceptible of the construction which the complainant seeks to place upon it. The evidence which we have quoted shows that it was not until after the larger machine, better constructed mechanically, had been built in pursuance of the principles upon which his machine was constructed that he threw aside the original machine. The machine produced, in so far as the principle is concerned, is a perfect reproduction of the original Ben Hicks machine. The witness Myrick, who purchased the original Ben Hicks machine, among other things, testified as follows:

"Q. At the time you bought this machine from Ben Hicks was it workable? A. He was picking peanuts with it the day I bought it. Q. Did you see it work? A. I did. Q. How long did you watch it in operation? A. Well, as well as I can remember, we were there a couple of hours. Q. Was it doing good work? A. Fine as I ever saw. Q. How was it operated? A. By horse power."