11 Wheat., 199. In the latter case this court said: "As a general rule, we think the party ought to be confined, in examining the admissibility of evidence, to the specific objection taken to it. The attention of the court is called to the testimony in that point of view only." Here the objection was that the copy was not the original. This, as a fact, was self-evident; but as a ground of objection it was wholly indefinite. It does not appear to have been suggested that the place of the lost deposition could only be supplied by another one of the same witness retaken, and that secondary evidence was inadmissible to prove the contents of 134*] the former. If the contents of the one lost could be proved at all by such evidence, that offered was certainly admissible for that purpose. But the objection was presented in the argument before us in the latter shape, and we shall consider it accordingly. It is an axiom in the law of evidence that the contents of any written instrument lost or destroyed may be proved by competent evidence. Judicial records and all other documents of a kindred character are within the rule. Renner v. Bk., 9 Wheat., 581; Riggs v. Tayloe, 9 Wheat., 483; 1 Greenl. Ev., sec. 509. But it is said a different rule as to depositions—unless the witness be dead-obtains in Vermont, and the cases of Follett v. Murray, 17 Vt., 530, and Low v. Peters, 36 Vt., 177, are referred to as supporting the exception. The next assignment of error is the admission in evidence "of such parts of the depositions of A. L. Turner and C. P. Steers as refer to what appeared or did not appear on the books of the Tioga County Bank." It was shown by the plaintiff in this connection that the books in question were in the Village of Tioga, Pennsylvania, that the plaintiff had endeavored to obtain them for use on this trial, and that those having the custody of them refused to permit them to go. The testimony of Turner was, in substance, that he was the cashier; that he had examined the books and papers in the bank relating to its affairs from its organization down to July, 1859, and that he found no evidence of any kind that the defendant ever had any connection or transaction with the bank, or any interest in it whatever; and that subsequently, at the request of the plaintiff and for the purposes of this suit, he repeated the examination with the same result. Steers testified that he was cashier of the bank from about the 15th of September, 1858, to about the 29th of April, 1859, and that during that time the defendant, Burton, did not furnish to the bank $7,060.18, or any other sum of money; that his name was never on the books of the bank, nor did the bank owe him anything on any account during that period, and that the witness did not think his name appeared on the books of the bank as a stockholder during that time. The books being out of the State and beyond the jurisdiction of the court, secondary evidence to prove their contents was admissible. *When it is necessary to prove the re- [*136 sults of voluminous facts, or of the examination of many books and papers and the examination cannot be conveniently made in court, the results may be proved by the person who made the examination. 1 Greenl. Ev., sec. 93. Here the object was to prove, not that the books did, but that they did not show certain things. The results sought to be established were not affirmative, but negative. If such testimony be competent as to the former, a multo fortiori must it be so to prove the latter. The last assignment relates to the charge of the court. Those cases are unlike the one before us. In Follett v. Murray the witness resided within the State, and there being no copy of the caption it did not appear that the deposition had been regularly taken. In the other case the witness was dead, and no question was raised as to any defect in the lost original. The copy was, therefore, admitted as of course. If a deposition be not properly taken it is not made admissible by the death of the witness. Johnson v. Clark, 1 Tyler, 449. In Harper v. Cook, 1 Car. & P., 139, it was held that the contents of a lost affidavit might be shown by secondary evidence. The necessity of retaking it was not suggested. In the present case the witness lived in another State and more than one hundred miles from the place of trial. The process of the court could not reach him; for all jurisdictional purposes he was as if he were dead. It is well settled that if books or papers necessary as evidence in a court in one State be in the possession of a person living in another State, secondary evidence, without further showing, may be given to prove the contents of such papers, and notice to produce them is unnecessary. Shepard v. Giddings, 22 Conn., 282; Brown v. Wood, 19 Mo., 475; Teall v. Van Wyck, 10 Barb., 376; see, also, Boone v. Van Dyke, 3 Mon., 532; Eaton v. Campbell, 7 Pick., 10; Bailey v. Johnson, 9 Cow., 115; Mauri v. Heffernan, 13 Johns., 58. 135*] Here there was nothing to prevent the operation of the general rule as to proof touch-vanced to be paid in on the stock of the Pittsing writings lost or destroyed. The deposition was one of the files in the case. The plaintiff was entitled to the benefit of the contents of that document. Having been lost without his fault, he was not bound to supply its place by another and a different deposition, which might, or might not, be the same in effect with the prior one. There was no error in admitting in evidence the copy to which this exception relates. The examination of this subject renders it necessary to refer briefly to the cause of action. The defendant, Burton, and three others, executed an instrument, under seal, bearing date October 20, 1858, whereby it was recited and agreed as follows: that the parties had severally furnished to the Tioga Bank, to enable it to redeem its bills promptly, certain sums of money, to wit: O. A. Burton, $7,060.18, etc.; that the bank was to refund said moneys as soon as it was in a condition to do so, and that it would lend to said parties, not exceeding $10,000 at any one time, on paper payable in New York, with interest at the rate of five per cent. per annum; that the Tioga Bank had ad ton Bank of Pennsylvania, $9,870, which money belonged to the four parties to the instrument, and it was agreed that each of the parties owned one fourth part thereof, less cost and expenses. To this paper was annexed a further instrument, under seal, dated April 29, 1859, whereby the defendant assigned to the plaintiff, for the consideration of $7,060.18, his interest in that amount paid by him to the Tioga Bank, according to the instrument first mentioned, with all the privileges relating thereto which the assignor would have had if the assignment had not been made. The declaration contained several counts, setting out the instrument as inducement and averring the utter falsity of its recitals. The common money 137*] counts were *added. The defendant admitted the receipt of the $7,060.18, stated in the assignment, as the consideration for making it, but gave no evidence tending to prove that the recitals in the instrument to which the assignment related were true. Both parties submitted prayers for instructions. Both sets were refused. Those of the defendant sought to defeat the action because it had not been brought upon the written instrument and the assignment. The court instructed the jury in effect, with full and proper explanations, that if the transaction on the part of the defendant had been a fraud, and there had been an entire failure of consideration, the plaintiff was entitled to re cover. The defendant excepted to these instructions, and to the refusal to give those which he had asked to be given. The former were correct in point of law. Weaver v. Bentley, 1 Cai., 47; Gillet v. Maynard, 5 Johns., 85; D'Utricht v. Melchor, 1 Dall., 428; Wilson v. Jordan, 3 Stew. & P., 92; Eames v. Savage, 14 Mass., 425; Lyon v. Annable, 4 Conn., 350; Pipkin v. James, 1 Humph., 325; 1 Swift, Dig., 400. The instructions given covered the whole case. It was not, therefore, the duty of the learned judge to give others suggested by either party. If wrong, they were inadmissible, and if otherwise, unnecessary. Laber v. Cooper, 7 Wall., 565, 19 L. ed., 151. We are satisfied with the charge as it appears in the record. The judgment of the Circuit Court is affirmed. Mr. Justice Bradley, did not sit on the argument of this cause and took no part in the decision. 342*] *THE METROPOLITAN WASHINGMACHINE COMPANY, Appt., v. THE PROVIDENCE TOOL COMPANY. (See S. C., 20 Wall., 342-353.) Walker's patent for clothes-wringers-infringement of. 1. Walker's re-issued patent for clothes wringers consists of a yoke whose inner margin is of a U form the sides of which extend upwards. 2. A portable support for a wringing mechanism which has some of the features of Walker's patent, but has not the U formed yoke, is not an infringe ment of such patent. "This is a bill in equity, brought by the complainants, who are assignees of Isaac A. Sergeant, for infringement of division No. 2829 of letters patent for an improvement in clotheswringers. Said letters patent were originally granted to Isaac A. Sergeant July 27, 1858, and were reissued in two divisions, one dated June 18, 1867, and the other being the one upon which this bill is brought, dated December 31, 1867. The machine described in the original patent belongs to that class of clothes-wringers generally known as twist wringers, in the use of which clothes were wrung and the water expelled by twisting the clothes into a rope in the same manner as clothes are wrung by hand. The original Sergeant machine had a yoke frame of U form, which yoke frame had a pair of jaws and a clamp wedge for securing the frame to the side of a common wash-tub. This portion of the original machine constituted that part of the invention which is embraced in the division of the re-issued patent numbered 2829. To the yoke frame a hinged frame was attached, which, when in position, is at right angles with the yoke frame. A cross-bar unites the two sides of the hinged frame. In the center of the cross-bar is set a 'hitching pin, around which the clothes to be wrung are partially wound and held fast by the left hand of the operator while the right hand turns a rotary clamp which is set in the yoke frame and which gives the clothes a twist necessary to expel the water.' More minute description of this rotary clamp is unnecessary, as it has little, if any, connection with any questions at issue in this case, the peculiarities of the wringing mechanism not forming any part of the mechanism recited in the claims of the re-issued patent numbered 2829. After the death of Isaac A. Sergeant, his administratrix, on account of a defective specification, surrendered the original patent, and on two corrected specifications two new patents were re-issued to one Walker, to whom the administratrix and the heirs at law had assigned the patent. Walker duly assigned to complainants all his interest in the patent and in any divisions or re-issues thereof. The claims in the re-issued patent No. 2829 are for, first, the employment or use of a portable frame or yoke, B, with uprights, SS, or their equivalents, for supporting a clothes wringing mechanism in position on one side of a common wash-tub for the purposes set forth; second the application of an adjustable clamping device when employed to attach a clotheswringer to one side only of a wash-tub, in the manner described and for the purposes set forth. In the re-issued patent, division 2, No. 2829, by a separation of the invention by the patentee, the yoke frame, in combination with its device for being clamped to one side of a common wash-tub, is claimed as a separate structure, without regard to the structure of the Argued Mar. 26, 27, 1874. Decided Apr. 20, 1874. wringing mechanism used with such 'support [No. 259.] APPEAL from the Circuit Court of the Uniting and connecting apparatus.' ed States for the District of Rhode Island. This was an action brought in the court below by the appellant, for the infringement of reissued patent, 2829. The following opinion of the court below states the case somewhat more fully than the opinion of this court: The answer of the defendants alleges in defense, first, that the re-issued letters patent are fraudulent and void, because they were sought to be procured for the purpose of embracing therein more than was the invention of the said Isaac A. Sergeant; that they were obtained for the purpose of endeavoring to embarrass these defendants and other parties manufacturing wringing-machines, by the assertion of a colorable claim to a subject of invention, which, if construed by the court as broadly as the complainants by their assertions claim that it should be, would prevent the manufacture of any wringing-machine that was detachable from a tub. If it appears upon the face of the re-issued patent, that it is not for the same invention as that embraced or secured in the original patent, then it would be the duty of the court, as a matter of law, to declare the re-issued patent invalid; for such a state of facts, apparent upon a comparison of the two instruments as construed by the court, would show that the Commissioner of Patents, in granting the re-issue, had exceeded his authority, and that there was such a repugnancy between the old and the new patent that it must be held, as a matter of legal construction, that the new patent is not for the same invention as that embraced and secured in the original patent. Matters of construction arising upon the face of the patent are open questions to be decided by the court, but all matters of fact connected with the surrender and re-issue are now held to be closed by the decision of the commissioner in granting the re-issued patent. Seymour v. Osborne, 11 Wall., 516, 20 L. ed., 33. This disposes of the first objection in the answer to the validity of the re-issued patent, for there does not appear to be any ground upon which it could with reason be contended that the invention claimed in the re-issued patent, was not described or substantially indicated in the original patent; and the other questions of fact are closed by the decision of the commissioner. The defendants also set up in their answer the anticipation and prior knowledge of the alleged invention of the complainants by various parties, patentees and rejected applicants for patents, whose names and the dates of whose applications and inventions appear in the answer and the amendments thereto. In view of this defense it becomes necessary to consider the state of the art prior to the date of the alleged invention by Sergeant, and to define the construction and the limitations of the claims in the re-issued patent under which complainants claim. issued to H. W. Sabin, August 16, 1845. In his machine, a common twist wringer was supported by a standard furnished with jaws and a clamp screw, the two forming a clamping device, such as is in common use in all wringers at the present time; but the standard was not a U formed yoke frame, simply as support for the journal of a shaft, although the standard had jaws and a clamping instrument adapted to secure the standard to the sides of a wash-tub. Unless the U form of the yoke frame in the Sergeant mechanism is to be considered as an essential part of the Sergeant invention, as distinguished from the standard in Sabin's machine, which is simply a support for a journal, it is difficult to perceive the novelty of the Sergeant invention. The experts examined in behalf of the complainants testify that, in their opinion, 'the said (Sabin) standard is simply a support for the journal of a shaft, and is not a yoke frame such as is described in the reissued patent, nor the equivalent of one, by reason of the differences above referred to.' But when they compare the yoke frame in the re-issued patent with the apparatus for supporting the wringing mechanism in the defendant's machine, which has two upright standard supporting journals for the pressure rollers, the two upright standards being connected by a cross-bar at the bottom, they testify that not only the two upright standards connected by a cross-bar at the bottom, form the yoke described in the patent, as seen from the inside of the tub, but that all the parts are duplicated, and the face of the machine presented to the outside of the tub has also two uprights and a connection which corresponds to the yoke in the patent. Applying the same reasoning, it is not very easy to see why each standard which supports the journals, as viewed from the sides, is not to be considered also as a separate yoke frame with two uprights and a cross-piece, so that it would be as correct to say that the yoke frame of the complainants is quadruplicated, as to say that it was duplicated. This would seem to be the necessary result of making the U shaped yoke frame include any form of a journal supporting standard, and it would seem to prove, if correct, that the Sabin patent anticipated the Sergeant invention. The U form of the yoke frame in the Sergeant machine was necessary as a device for supporting a clothes-wringing mechanism, in the manner and for the purposes set forth. The manner Without going into a detailed description of of support was a semi-circular shape at the botwringing machines existing anterior to the date tom of the U formed yoke frame which conof Sergeant's invention, it will be sufficient for stituted of itself a journal box, and the peculiar the purposes of this case to observe that wring- form of that standard which was new, when ing-machines were in use in many different combined with any wringing mechanism which forms of more or less practical utility. Clamp- was old and well known, and a wedge screw or ing devices were also old and well known means other well known and equivalent clamping deof attaching machines of various descriptions vice which was old, constituted the only invento benches, tables or other articles with which tion which, in the state of the art at the date of they were used; reels for thread, vises, eyelet- the Sergeant invention, could be embraced and machines, fluting-machines, egg-beaters, and protected in that division of the re-issued patsmall mills had been attached to benches and ent. This combination of such a yoke frame, tables by clamping devices similar in principle with uprights or their equivalents, for supportto the one described in Sergeant's patent. Aing a wringing mechanism in position on one clamping device identical with the one used by side of a common wash-tub with an adjustable the defendants, and comprehended in the re- clamping device, all substantially in the manissued patent 2829, was applied to a wringing-ner and for the purposes set forth in the patent, machine before the Sergeant invention. is all that can be sustained as new in this Letters patent for a washing-machine were division of the re-issued patent. To attempt to make the claims in this division of the re-issued patent sufficiently broad to cover any form of portable standard for supporting a journal of any form of wringer in combination with a wedge, or helical wedge or screw, or other clamping device, for securing the frame to the side of a tub, would be fatal to the patent, as it would clearly embrace what was old, both in the separate parts and in the parte in combination. The two upright standards in the defendant's machine connected with the cross-bar may in one sense be said to be the equivalent of the U shaped yoke frame of Sergeant's. But the upright standards each support, independently of the other, their respective journal boxes, in the same manner substantially that Sabin's standard supported a journal for clothes-wringing mechanism. There is no significance in any similarity or supposed similarity to a U shaped yoke frame, constituting a journal box of itself, and requiring that exact semi-circular or substantially semi-circular form, to form of itself the journal box. The re-issued patent in controversy in this case is, as construed by the court, only for a combination. Upon no other construction could it be sustained. The first claim refers to peculiarities in the construction of the U shaped yoke frame for the support of the wringing mechanism, the second to the combination of this peculiarly constructed yoke frame with reference to the purposes of the peculiar form of construction with an adjustable clamping device, when employed to attach a clothes-wringer to one side only of a wash-tub. The standards or uprights in the defendant's machine can, with no more propriety, be considered as the equivalents of the U shaped yoke frame in the complainant's, than can Sabin's standard be considered as a yoke frame, because it supported a journal box. If the two standards in the defendant's machine, with their connecting cross-bar, are to be claimed as the equivalent of the complainant's yoke frame, then any frame of any kind, supporting any wringing mechanism, must be considered an equivalent, for there cannot be any form of frame constructed, supporting a journal, which could not be dissected into a yoke frame or a U shaped yoke frame by an elimination of parts not indispensable. The defendants do not use a U shaped yoke frame, with any such peculiarity of construction in the form of a frame for the same purpose and in the same manner in which it is used in the complainant's combination. If the defendant's frame and standards, either separately or in combination, are the equivalent of the complainant's yoke frame, then the complainant's yoke frame, when combined with the clamping device and wringing mechanism, is the equivalent of Sabin's journal supporting standard in a similar combination. As the defendants, in the view taken by the court of the Sergeant invention, do not use all the elements of his combination, when Sergeant is confined within the exact limits of his invention, and is allowed the full benefit of his invention, so far as it was novel, they are not liable as infringers, and the bill must be dismissed with costs." Figure 1 is the drawing referred to in the Mr. Justice Strong delivered the opinion of the court: The bill in this case was filed to restrain an alleged infringement of a patent, dated Dec. 31, 1867, and numbered 2829, one of the divisions of a re-issue. The original was granted on the 27th of July, 1858, to Isaac A. Sergeant, for an improved clothes-wringer, and the re-issue has by sundry assignments become the property of the complainants. At the trial in the circuit court several matters were in contest, which it is unnecessary to consider, for the only question presented by this appeal is whether the reissued patent has been infringed by the defendants. To a correct determination of this ques tion it is indispensable to understand precisely what the patent covers. The mechanism described in the specification is not claimed to be a complete clothes-wringer. It is rather a device for suspending a wringer over a common wash-tub, a portable frame which may be attached to one side of the tub, and detached at pleasure. In the description of the drawings accompanying the specification, and a part thereof, it is called a frame for supporting the wringing mechanism of the machine as attached to one side of a common wash-tub by means of a clamping device, and the first part of the invention is said to consist of a portable machine which may be temporarily attached to one side of a common wash-tub or readily disconnected therefrom whenever desired, and is especially adapted to wringing clothes. The second part of the invention, as described in the specification, consists in a portable frame 350*] employed for supporting the wringing mechanism of the machine upon one side of a common wash-tub by means of a clamping device, which is made to gripe one side of a wash tub for the purpose of attaching and sustaining temporarily the entire wringing mechanism of the machine in a firm and expeditious manner, regardless of the diameter of the tub. Such is the language of the patentee. The specification then refers to the drawings, in which what is called the first part of the invention is represented as "a yoke whose inner margin is of a U form, the sides of which extend upwards, forming uprights. From the lower end of the yoke extend two jaws, one of which contains within a dovetail groove a wedge or key whose exposed side is made slightly concave. The office of the jaws and wedge is to hold the above described frame or yoke for supporting the wringing mechanism of the machine in position for use on one side of a common washtub, in a permanent manner, temporarily, regardless of the diameter of the tub, or the thickness of its rim, in reference to which service they are termed collectively, the 'vise."" Then follows the claims of the patent, the first of which is "the employment of a portable frame or yoke B (which in the drawings is represented as a U shaped upright frame), with uprights, S, S (the sides of the yoke), or their equivalents, for supporting a clothes wringing mechanism in position on one side of a common wash-tub, for the purposes set forth." The second claim is "the application of an adjustable clamping device, when employed to attach a clothes-wringer to one side only of a wash-tub, substantially in the manner described and for the purposes set forth." Regarding these two claims as descriptive of two distinct things, the first must refer to the U shaped yoke or frame for supporting a wringing-machine, as exhibited in the drawings, and explained in the specification, and the second to a combination of a yoke with a clamping device, when employed to hold a clothes-wringer to the side of a tub. It need hardly be said that the claims are to be construed with reference to the state of the art at the time when the alleged invention was made. The case shows that 351*] clothes-wringers of many kinds were known and in use before the original patent was granted to Sergeant. These all had frames for holding them in position, some attached per * manently to the wash-tub and others detachable. Their prior existence is recognized in this patentee's specification. Clamping devices of many varieties were also old and well known means of fastening machines or supports for machines to chairs, benches, platforms, tables and other articles. Apple paring machines, coffee-grinders, thread-reels, and smith and carpenter's vises had been supported, and held in position by devices like in principle to the clamping arrangement described in the complainant's patent. And it is in proof that letters patent for a washing-machine were granted to Harvey W. Sabin, on the 16th of August, 1845, in which a clamping device for attaching the support of a wringing-machine to the side of a tub, and in combination with the support was employed; a device consisting of jaws at the lower extremity of the support, with a screw for compression, identical in principle with that claimed by the complainants. It is very obvious, therefore, if their patent can be sustained at all, it cannot be construed as claiming all forms of a portable frame or support for a washing-machine, nor a combination of a clamping device with any and every kind of such support or frame. It may well be doubted whether a frame with no distinctive peculiarities, intended for the support of a wringing-machine and sufficient for such a use, though so constructed as to be capable of being attached by projecting jaws to the top of a wash-tub, could be regarded at patentable. Such a mode of attachment has been known and employed time out of mind, and if, before the Sergeant patent was granted, it had not been used in connection with, or as part of a frame or standard for the support of a wringing-machine, the new application, without any novel and useful result, could hardly be considered invention. It would be but a case of double use. Besides, to this extent the Sabin machine had reached years before the Sergeant patent was granted and, therefore, unless the complainants' patent is limited to some *distinctive feature other than the jaws [*352 at the bottom of the yoke or frame, it must fail for want of novelty if not for want of invention. And this we do not understand to be seriously questioned. We do not understand the complainants as contending that either of the claims of their patent should not be construed as embracing only the peculiarly constructed frame or yoke described in the specification. What, then, are the distinctive features of the frame, and what are the proposed offices of these features? Manifestly the thing sought to be secured by the peculiarity of form described was not merely a support for a wringing-machine, not merely a standard to hold the machine in position, but a manner of support. And beyond all doubt the U form of the frame is essential. Indeed, it is the only form exhibited in the drawings and described in the specification. The purpose of the frame is also avowed to be to support the clothes-wringer, and the frame exhibits no means of support except the semi-circular bottom of the U, which forms a journal bearer, on which the journal of the wringer may rest, while the uprights serve to keep it in position. By themselves the uprights serve no other purpose, and they are no more essential than is the curvilinear space between them, the bottom of the U in the interior of the |