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use of female dies above male dies, as so testified to by him, in the Worthen and Renwick machine, and of what is found in the Byrne book, there was not invention in claim 4 of the Fischer patent; and he, in substance, admits that if claim 4 is limited to the use of a single upper female die above a single lower male die, the invention in claim 4 did not exist in the machine which Althouse & Co. had, unless that machine was used in the way testified to by Mr. Worthen. He also testifies that so far as he remembers the upper set of dies in that machine was the stationary set.

The statement that, in the machine referred to, the lower dies were carried up singly against the upper die, is contradicted by four workmen, Pressler, Emerson, Handmann, and Engleman, who used the machine at Althouse & Co.'s. Pressler has been in the employ of Althouse & Co. for the past 28 years, and foreman for them for the past 16 years. He says that even when the lower die was made in pieces or sections, so that a difference could be made in the height of the cornice, the lower sections were bolted together and were always elevated together, and one section of the lower die could not be used alone; that a single male die was never used under a single female die; that a sectional top die was wedged down to make the bend, and then the whole lower die was raised up against it, and then that sectional top die was fastened to the lower die, and the lower die was let down, carrying that top die, and then a second sectional upper die was operated with in the same way, and so on; and that the female die was below. Emerson, a machinist, who has been in the employ of Althouse & Co. for 22 years, and built the machine referred to under Worthen's superintendence, says that the lower die was generally in sections, and the upper dies were in sections; that the lower sectional dies could not be moved up singly, but were bolted together; that the lower die was moved up; that one at a time, and sometimes two at a time, of the upper sectional dies were dropped down, to bend with; that he never knew of a single female die used above a single male die on the machine, to make the last right-angled bend,

but such bend was made with a mallet; that he does not recollect the use of a single lower male die without any other form of bend or angle on the face of the lower die; and that when a single upper sectional die had been let down and used to bend, it was clamped to the lower die, and another sectional upper die was then used. Handmann, a house-smith, worked for Althouse & Co. for 13 years, and while they had this machine, which he assisted in making. He says the upper dies were sectional, and were used in succession, by letting one down at a time, and bending with it, by bringing up the lower die against it, and then the upper die was clamped to the lower die and went down with it; and that a single male die was never used under a single female die. Engleman, a house-smith, has worked for Althouse & Co. for the past 21 years. He worked on this machine. He says he never saw used in it a single male die under a single female die, there being nothing by the side of the male die. The testimony of Bohne and Sellman goes, also, to contradict Worthen as to the way in which the last right-angled bend was made in the specific cornices referred to by Worthen.

It must be held that the defence sought to be established by the testimony of Mr. Worthen is not made out. •

(11) Objection is made to the specification of the plaintiff's patent because it states "that but two kinds of dies for all kinds of smooth mouldings that may have to be formed are needed, viz., rounded and square dies," and that “of the lat ter but one set is required for making all sorts of angles." No such defence is set up in the answer; but the specification is not open to the objection made. Of course, a square or right-angled die will not make a bend of a different angle. There is nothing in the specification to indicate that the patentee contemplated making any angular bend other than a right-angled bend. The drawings show no other. But they do show right-angled bends in contrary directions on the same moulding. The expression, "all kinds of smooth mould. ings," means, in respect to angular mouldings, “all kinds of smooth right-angled mouldings," and the expression, "all sorts

of angles," means "all the kinds of square or right-angled angles" which can be made by the square dies, and which are shown in figures 2 and 3; the mouldings shown in those two figures in red lines being the mouldings which the specification states the machine is to form. The only angles in the mouldings in those two figures are right angles.

(12) It is not apparent for what purpose the testimony of Kittredge was introduced. No defence to which it can relate is set up in the answer. It is not referred to in the brief of the counsel for the defendant. No defence of laches or license, or acquiescence by the plaintiff in the use of the machine by the defendant, is set forth in the answer. The plaintiff's patent was granted in February, 1868. He began his suit against Wilson in May, 1869. It was not decided until April, 1879. The defendant's machine was made in 1872. This suit was brought in May, 1879.

(13) The inventions covered by claims 2 and 4 of the plaintiff's patent were new, useful, and patentable.

All the questions raised and discussed on the part of the defendant have been carefully considered, and such of them as have not been particularly adverted to in this decision have not been overlooked; but they are of such minor importance that they can have no weight to control or modify the views before expressed, and therefore it is not deemed necessary to comment upon them.

There must be a decree for the plaintiffs as to claims 2 and 4.

FISCHER V. HAYES.

(Circuit Court, S. D. New York. January 26, 1881.)

1. MOTION TO STRIKE OUT TESTIMONY.

Motion to strike out testimony upon the grounds (1) that said testimony, and the oaths thereto, are fictitious and void; (2) that the direct testimony of said witnesses is fraudulent and inoperative; and (3) that said testimony is unauthorized, and does not properly form any part of the record, or of the proofs, denied, under the circumstances of the case.-[ED.

In Equity. Suit for Infringement.
Charles F. Blake, for plaintiff.

James H. Whitelegge, for defendant.

BLATCHFORD, C. J. This is a motion by the defendant to strike out the testimony of John D. MacClay and that of Phillips Abbott, taken in this case for final hearing, on the grounds set forth in the notice of motion: (1) That said testimony and the oaths thereto are fictitious and void; (2) that the direct testimony of said witnesses is fraudulent and inoperative; (3) that said testimony is unauthorized, and does not properly form any part of the record, or of the proofs herein.

The affidavit for the motion, made by Mr. MacClay December 7, 1880, is to the effect that on the eighteenth of March, 1880, the day his direct testimony purports to have been taken, he went to the office of Mr. Blake, the plaintiff's solicitor, and there Mr. Abbott read to him a paper, but presented to him no drawing, and asked him to sign the paper, and he signed it; and he was then taken by Mr. Conolly before Mr. Shields, the examiner, and was sworn by Mr. Shields to tell the truth and the whole truth, the paper not being present, but being retained by Mr. Abbott; and that he did not after that give any deposition or return to Mr. Blake's office. He also says that when Mr. Abbott so read the said paper to him he did not read any questions to him, and he did not make any of the answers purporting to have been made by him. His explanation is that what was so read to him was in narrative form, and he thought it was an

affidavit. The testimony referred to is in the form of questions and answers, and in reply to question 13 Mr. MacClay explains a drawing then produced and shown to him, and stated to be offered in evidence, and marked as an exhtbit. Mr. MacClay also states that when he was cross-examined by the defendant's solicitor, on the thirty-first of March, 1880, he thought the cross-examination related to affidavits he had made in this case in 1879. It is stated in the heading of the direct examination that MacClay was first duly sworn. At the end of the direct examination is a jurat signed by Mr. Shields, the examiner, to the effect that it was sworn to before him March 18, 1880. The defendant's solicitor was not present at the direct examination, he having intentionally remained away, though notified, on the ground that he regarded the proceeding as irregular. As he was absent, it was not unnatural that Mr. MacClay, a layman, should not understand that he was being examined as a witness in chief for final hearing. It appears, by the files of this court, that he had sworn to an affidavit in this suit before Mr. Abbott, as a notary public, on the twenty-third of May, 1879, and to another affidavit in this suit before him on the twelfth of June, 1879.

Mr. MacClay's recollection on the seventh of December, 1880, as such recollection appears in his affidavit of that date, in narrative form, as to what occurred at Mr. Blake's office on the eighteenth of March, 1880, is very different from what appears from his cross-examination on the thirty-first of March, 1880, to be his then recollection of those occurrences, if such cross-examination is to be taken as referring to what occurred on the eighteenth of March, 1880, and not to what occurred on one or the other of the occasions when he made the affidavits in 1879 before Mr. Abbott. Mr. MacClay says that he did not understand he was being cross-examined as to his deposition of March 18, 1880, but thought he was being crossexamined as to his affidavits of 1879. It is plain that Mr. Whitelegge, who cross-examined him, thought he was crossexamining him as to what occurred on March 18, 1880, and probably the plaintiff's solicitor must have so thought. Mac

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