Page:Federal Reporter, 1st Series, Volume 4.djvu/435

 PBOCTÔB r. BBIÏJi. e2l �If he dîd, then, aslbefore stated, he cannpi.r'ecoyer for thesale of cars thereafter made. In support 6f the second allegation, ■wHich is that these devices werç old, you have th'e testimdny of a number of witnessea produced by the defendants, wlib eay, as you have heard, that they saw in use devices sûbstau- tially identical with the plaintiff's, ,in different places, whict they name, prior to 1853, when Mr. Sampson is alleged to have made the inver^tion e^ib'raced in the patent here in- volved ; and have placed befor^ you inodels or illustrations of the devices to which they refer. If yôu find that Mr. Samp- son's daughters, who testified here, are mistaken respectiiig the time when. the first model was produced, (they fix it, as you will recollect, in 1853,) and that the time at -which his invention was made should be placed at a later date, as the defendants' counsel argues, yôu will then also consider other devices referred to by the defendants' witnesses, as seen in use subsequently to 1853, and down to such time as you find Sampson's discovery to bave been made. Are the witnesses here referred to mistaken or inaccurate, either as respects the character of the devices or the time when they were seen in use ? You must determine whether the models or illustra- tions exhibited fairly represent what the witnesses saw ; and whether the devices in use, of which they spoke, were substan- tially identical with the plaintiff's. In considering this, you will remember the testimony of the experts and the cora- ments of counsel. A comparisôn of the models and illustra- tions referred to by the witnesses, with the plaintiff's model of his devices, will afford you a pretty safe guide respecting the identity of the devices referred toby the defendants' wit- nesses, as seen by them in use at the dates to which they testify, with the devices covered by the plaintiff's patent. Can you rely on the accuracy of the witnesses who testify to the prior use of similar devices? Are they or not mistaken or inaccurate in stating what they saw, or the time when they Baw it ? In this connection you will consider the testimony of the witnesses called by the plaintiff in rebuttal, and the comments of counsel on this evidence. If the testimony of the defendants' witnesses, respecting the devices which they ����