Page:Federal Reporter, 1st Series, Volume 8.djvu/922

 90S FEDERAL REPORTER. ■ �Philadelphia, Pittsburgh, and Wheeling, says he never saw or heard of a chimney with the abrupt enlargement before bis. Martin, ac- quainted with the lamp shade and chimney business for 30 years, in Boston and New York, and in New Jersey, and acquainted witb the chimneys in the New York market from 1863 to 1867, says he never saw any chimney like No. 5 in the market. The plaintifif, familiar with lamp chimneys from 1864, says thatno chimney with an abrupt enlargement at the base was introduced to the trade before 1S73. In regard to chimneys alleged by Eussell to have been sold to Stanford & Co., of San Francisco, Day, who has been acquainted with the lamp-chimney trade there since 1855, gives sketches of all the chim- neys known in the San Francisco market from 1858 to 1868. No one of them is shown to coutain the patented invention. �It is contended, for the defendant» that the positive testimony of Mayer and of Eussell ought.to outweigh the negative testimony in. reply. The burden of proof is on the defendant to establish affirm- atiyely the defenceof waiit pf aovelty beyond a reasonable doubt. It is apparent that a chimney with a right-angled enlargement too low down does not meet Crosby's invention ; and the evidence tends to show that all the, chimneys made for Bussell & Co. had short necks and lips, and that the enlargement was not up as high as the flame. The evidence also tends. to show that the chimneys testified to as made by Dorflinger were bulb chimneys, for the Dietz burner, and not like Crosby's., On the whole evidence, it must be held that the defeuce is not established. �The testimony of Gillinder, Weidner, Bennett, and Brady was properly objected to as not rebutting, and because no foundation was laid in the answer for their evidence.. Besidea, it does not appear that either No. 6 or No. 7, or the Stella chimney, contains Crosby's invention. �The invention is shown to be useful, and infringement is proved. There must be a decree for the plaintiff and for a reference. as to profits and damages, and for a perpetuai injunction, with costs. ��� �