Page:Federal Reporter, 1st Series, Volume 9.djvu/680

 OBANDAL V. WALTEBS. 66^ �duced by a witness who states that it is "a guide for a sliding boit and a catch into which the boit would slide when the article is put in use," and that he bas known articles similar to it to have been iu public use and on sale iu cbe United States for nine and one-balf years before January 15, 1881. This would carry it back to July 15, 1871. The application for the original Davis patent was filed April 22, 1868. Moreover, the attention of the witness was not directed te the featnre of the bending over of the lugs, to clinch them, as distinct from riveting them. It does not appear that the metal used prior to Davis' invention, in making any snch boit-guide and catch, was so thin that the article could be or was struck up from a single piece of metal. Another witness states that, to hia knowledge, boit-guides were made on the plan of said exhibit, but larger, nearly 20 years before January, 1881, the loops being fastened to the bottom plate, 20 years ago, the same as in the exhibit, clinch ed to the back of the plate. On oross-examination he says that they were made of heavier metal, some of them. He then testiues : �"■Cross-questionV). Were not the ends of the hasp or staple headed down on the plate by a blow of the hammer, as in riveting, instead of being bent over or clinched, as in defendants' exhibit 'Boit-guide and Catch ?' Ansicer. As a general thing they were made in that way, — riveted with a hammer to form a clinch ; they were not riveted to fonn a head like a boiler rivet, but were bent over like the exhibit." �Again he says that they were mostly made for heavier purposes than the exhibit. The defendant's expert says that the exhibit could be attached to a carriage curtain. The plaintiff, in his testi- mony as a witness, gives evidence throwing doubt on the view that the lugs in any boit-guide were not headed down by riveting. On the whole evidence it must be held that the prior existence of the boit-guide, made of metal so thin that the article could be struck up from a single piece of it, and with lugs clinched by bending and not riveting, is not satisfactorily shown. Besides all this, it is plain that the boit-guide never did and never would suggest Davis' box-loop. �There must be a decree for the plaintiff for an account of profits and damages, and a perpetuai injunction, with costs. ��� �