Hawes v. Antisdel. The witnesses produced by defendant to corroborate Alport as to the existence of those alleged prior advertising registers, all testify from recollection, without any memoranda or writing whatever to aid their memory. Those called by complainant to prove the contrary, it is true, testify equally from memory alone, and are equally liable to be mistaken; but that does not help the defendant's case, because the burden was on him to make out his defence, by clear and satisfactory evidence, beyond a reasonable doubt; and, as we shall presently show, the testimony tending to prove the non-existence of those alleged registers is entitled to equal weight with that tending to prove their existence. It must therefore be held that the allegation of the answer of prior use of the alleged invention in the Bentley House at Dexter, by N. J. Alport, is not sustained. 4. Previous knowledge of the alleged invention by Spafford, at Tecumseh, and Stiles at Jackson, both in the State of Michigan. Spafford's testimony as to alleged previous knowledge has been already considered and disposed of in connection with the alleged prior use at Tecumseh. Stiles' previous knowledge remains to be considered, and this rests on Stiles' testimony alone. This person when on the witness-stand manifested, especially on his cross-examination, a degree of recklessness, and want of appreciation of his duty as a witness and of the obligation of the oath he had taken, frequently expressed in exhibitions of contumely and of contempt for the party against whom he was called to testify, such as is seldom witnessed in a court of justice, and as destroys, in my estimation, all confidence in his honesty and truth as a witness. At all events when these infirmities in his testimony are considered in connection with his acknowledged exceedingly bad memory as to dates, where dates alone were important, and the absence of memoranda which he said he had and could produce showing the correct dates, I should feel far from justified in allowing the unsupported testimony of this man to outweigh the evidence of the patent of the novelty of the invention. 5. In addition to what has been already said, there are considerations of a general character which would have a ten Hawes v. Antisdel. dency to force upon the mind almost irresistibly serious. doubts of the truth of the defence set up, even if the evidence in support were uncontradicted and of a stronger character. In the first place the defence was predicated upon an alleged prior public and common use of the thing patented, and six different hotels and places were specified, while testimony was adduced as to only three hotels and places, and those, where the register or registers in use at the times specified, of whatever description, had been destroyed or could not be found. In the next place defendant's testimony tends to show as strongly as it shows anything, that if these registers were in use at all prior to complainant's invention, they must have been in quite common use in this and other States, having been ordered by a single person a dozen at a time, and not less than a hundred having been manufactured by one person, and put afloat prior to the date of complainant's invention. And yet, not a book used or manufactured before that date was produced; and, considering the efforts made by this defendant to procure one, and the interest hotel keepers generally, or at least the large number of them against whom suits were pending for infringements, had to aid him in those efforts, it must be presumed that none could be found. The door was opened wide for the introduction of such a book in evidence if one could be found, and it was expressly left open by complainant's counsel at the hearing, and has remained open during the several months the case has been held under advisement by the court. This defendant, and those in the same interest with him-and their number and influence were not small— have not been wanting in their efforts to meet the challenge. They sent circulars and made inquiries far and wide, and offered a handsome reward for the production of a single advertising hotel register used or manufactured prior to the date of complainant's invention, and still no such book has been forthcoming. Plenty of old plain registers covering such prior dates could be found, but no advertising register ; and plenty of advertising registers covering subsequent dates could be found, but not prior. The bare statement of these facts suggests to my mind a doubt, to say the least, whether there could have been a prior use or prior knowledge of the Hawes v. Antisdel. invention in question, as is alleged. To doubt in such case, as has been well said, is to solve the question in the negative. Another consideration, and to which allusion has already been made, is, that a mere matter of dates is left to rest wholly upon the unaided memory of witnesses, who for the most part had no interest or motive in regard to the fact to impress their memory at a distance of time from eight to twenty years, and involving in most instances a difference of only one, two, or three years, whether it was before or after the date in question. A remark by Mr. Justice Swayne in his opinion in the case of Wood v. Cleveland Rolling Mills Company, 4 Fish., 559, is quite applicable here. In speaking of the proof required to sustain the defence of want of novelty, and which he speaks of as a defence usually set up in patent cases, he says: "The confidence of the attacking witnesses is often in proportion to the distance in time that one is removed from the other. Their imagination is wrought upon by the influence to which their minds are subjected, and beguiles their memory." When we add this to the fact that in every instance defendant's testimony as to prior use, weak as it is when standing alone, was contradicted by testimony entitled to equal consideration in every respect, there is really nothing left to sustain the defence. The rule of presumptions, that ordinarily a witness who testifies to an affirmative is to be preferred to one who testifies to a negative, recognized by the Supreme Court, in Stitt v. Hindekopers, 17 Wall., 384, insisted on by the defendant's counsel, is, of course, recognized by this court as binding upon it in cases to which it applies; but in this case I think it has no application. This is quite apparent when we look at the reason for the rule, as stated by the Supreme Court in the case last cited (page 391), which is as follows: 'Because he who testifies to a negative may have forgotten. It is possible to forget a thing that did happen. It is not possible to remember a thing that never existed." The conflict of testimony is not whether there was or was not a register or book of some kind used at each of the hotels in question during the periods of time covered by defendant's testimony, for the witnesses on both sides are all agreed that Hawes v. Antisdel. there was; neither is it, as to some of the places, as at Sturgis and Dexter, that there was or was not an advertising register used at some time by the person named in a hotel kept by him, for as to that the witnesses are also all agreed that there was. The conflict is simply as to the description or kind of register so in use, at such prior periods of time; and in respect to Sturgis and Dexter, as to the time when they saw an advertising register in use there, in a hotel kept by the persons named, whether in 1867 or from one to three years earlier. One set of witnesses testifies in the one case that the register so used was an advertising register, and in the other case that it was at the earlier date the advertising register was used; and the other set describes the former as a plain register, and that the latter was used at the later date. Each set testifies to an affirmative equally with the other, and neither has any advantage over the other, under the rule laid down in Stitt v. Hindekopers. Upon the whole consideration, it results, that there must be a decree for the complainant, according to the prayer of his bill. Decree accordingly. J. J. Allen, W. W. Taylor, and E. C. Walker, for the complainant. Moore & Griffin, for the defendant. Ingels v. Mast. JOSEPH INGELS vs. PHINEAS MAST. IN EQUITY. Where the complainant's invention consisted of a combination of certain old elements to which some new features were added, the master reported the damages, based upon a license fee on the whole combination : Held, that the complainant was entitled only to the value of the improvements which he had added. (Before EMMONS and SWING, JJ., Southern District of Ohio, February, 1875.) EMMONS, J. 1. The testimony, when analyzed, does not show any certain basis upon which the finding of the master can rest. No one witness swears to any license fee that is applicable to the precise thing here used, and for which damages are claimed. There is no claim that the report of the master is warranted by any proof of profits. 2. Subject to reconsideration, when the master's further report comes in, it is suggested that the proper measure of damages is the difference between the value of the improvement used by the defendant and any other like device which was open to him without royalty, or by payment of less royalty. This is said notwithstanding the suggestion in Judge Grier's decision in Livingston v. Jones, 2 Fish., 207, that there is no warrant for subdividing the elements in an improvement; and giving the complainant the value only of that peculiar feature in it which he has added. He seems to argue that the portion of the device which is improved must be taken as a unity, and the complainant entitled to its whole value as improved. We rule, for the present, on the contrary, that he is entitled only to the value of that which he has added, and that such a |