Page:Federal Reporter, 1st Series, Volume 9.djvu/718

 BOYKIN V. BAKEE. 703 �1878; and in another part he says, in ans-wer to a veryleading ques- tion, that they neyer used dissolved bone in the Liebig formula prior to March 1, 1876. There is abundant testimony that it was used constantly by the defendants during the year 1876, subsequent to the first of March. �Whenever it was that the complainants began substituting the dis- solved bone in the Liebig formula, it is very evident that they didnot then themselves think that they had made a disoovery or had origi- nated anythiug wbich .'they could claim as new. This appears con- clusively from a circular of four pages issued by them in 1875 or 1876. With regard to the date when this circular was issued, Dr. Boykin States it Was the first ciroular they ever issued, and his best recolleetion is that it was in 1876, although he is not certain whether it was in 1876 or 1875. From all the facts conneoted with it, it would appear hardly possible that it could have been issued later than the spring of 1876. In this circular the formula, precisely as patented, is pririted, and the attention of farmers is earnestly called to the advantages of preparing their own fertilizers by this formula. In it three letters commending it are printed, all of them dated in 1875, and reference is made to Dr. Nicholson, who is stated to have bought for bis neighbors "last year" over 100 tons of this fertilizer. In this ciroular the complainants say : �"After investigating the matter with great care and some expense ; af ter Consulting agricultural chemists and many of our most intelligent and suc- cessful farmers, — we do not hesitate to ad vise the use of the chemicala in the attached formula." �The circular concludes : �"We do not daim it as any spedalty of ours, though we have sold large qnantities of it, and will sell as low as you can get a pure article anywhere else." �The 100 tons which the circular states Dr. Nicholson bought from the complainants appears from his testimony to have been purchased not later than 1875; and of the eommendatory letters one is dated June, 1875, and the others August, 1875. The explanation given by Dr. Boykin of this circular is that the letters were from persons who had never used the formula as then printed, but who had used the Liebig formula and similar formulas, all called by the complainants "home fertilizers;" and as the complainants were confident they had improved these formulas, they used the letters, although they were not literally true as applied to the formula printed with them^ ��� �