Opinion of the Court.

him to explain, if he can and desires to do so. Whether this has been done is for the court to determine before the impeaching evidence is admitted. Here the cross examination, on which the right to use the depositions depended, has not been put into the record, but the bill of exceptions shows "that, in the crossexamination of each of said witnesses, the attention of the witness was called to the evidence given by him in the cases of Menge, and the said witnesses were specifically examined as to the correctness of said evidence, and admitted having testified therein." From this, and the failure to incorporate the cross-examination into the bill of exceptions, we must presume that ample foundation was laid for the introduction of the evidence, unless the failure to show the depositions to the witnesses at the time of their cross-examination was necessarily and under all circumstances fatal. The objection is not to the cross-examination as to the contents of the depositions without their production, but to the admission of the depositions after a cross-examination which was, as we must presume, properly conducted in their absence. It is also stated in the bill of exceptions that, "at the offering, no objection was made that the evidence offered was not the evidence of said witnesses respectively, or that the same had been imperfectly taken or reported." This shows that the depositions must have been sufficiently identified as the evidence of the witnesses in the former cases.

In the case, as it comes to us, we find no error.

The decree of the Circuit Court is affirmed and interest al lowed.

Opinion of the Court.

CLARK v. BEECHER MANUFACTURING COMPANY & Another.

APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF CONNECTICUT.

Argued April 17, 1885.-Decided May 4, 1885.

Letters patent No. 66,130, granted to James B. Clark, June 25, 1867, for an "improvement in the manufacture of blanks for carriage thill shackles,” are not infringed by the manufacture of blanks for shackles in accordance with letters patent No. 106,225, granted to Willis B. Smith, August 9, 1870. The features of the Clark patent are, that, by dies, the arms of the blank are bent into an oblique direction, and the body into a curved form, so that the parts where the arms join the body are rounded on the outside as well as the inside; and that when, subsequently, the curved body is straightened, there will be in it sufficient metal to form sharp outside corners, by being pushed out into them.

The arms of the Smith blank are not bent in an oblique direction, its body is not curved, the parts where the arms join the body are not rounded, either on the inside or on the outside, and, in afterwards straightening the back, surplus metal is not pushed towards or into the corners, to form them, but the existing corners, already formed, are forced further apart, by driving surplus metal into the back, between the corners.

In view of the state of the art, and the terms of the Clark patent, it must be confined, at least, to a shape which, for practical use, in subsequent manipulation, has a disposition of metal which causes a sharp corner to be formed in substantially the same way as by the use of his blank.

This was a bill in equity to restrain an infringement of a patent. The facts are stated in the opinion of the court.

Mr. William Edgar Simonds for appellant.

Mr. O. H. Platt for appellees.

MR. JUSTICE BLATCHFORD delivered the opinion of the court. This is a suit in equity, brought in the Circuit Court of the United States for the District of Connecticut, by James B. Clark against The Beecher Manufacturing Company, a Connecticut corporation, and D. F. Southwick, for the infringement of letters patent No. 66,130, granted to the plaintiff,

Opinion of the Court.

June 25, 1867, for an "improvement in the manufacture of blanks for carriage thill shackles." The main defence to the suit is non-infringement. The Circuit Court, after a hearing and two rehearings, dismissed the bill, holding that infringement had not been proved. 7 Fed. Rep. 816. The plaintiff has appealed.

A history of the state of the art, and of the progress of invention in making shackle blanks, will conduce to a determination of the questions involved. A carriage thill shackle is a device by which the thills of a carriage are hinged to the axle. The finished shackle is a horizontal plate, with a pair of vertical ears rising therefrom, one at each end of the back. The cockeye on the end of the thill is received between the ears, and a bolt passing through the ears and the cockeye secures the parts. The flat back or body part of the article is forged with a projection at each side, forming what is commonly called the clip," by which the article is secured to the axle. In forming the shackle, it is necessary that the outside corners, where the ears join the back, should be sharp, full and square, to obtain a good bearing on the axle, or the article will not be salable. The old style of shackle was of this shape. It was formed by

bending up the two ears from a piece of metal of equal thickness, and the outer corners became round, and the bearing on the axle was not firm and true. It was desirable to obtain in some way a reservoir or surplus of metal, which could be utilized, in the bending, by being thrown out into or remaining in the corners, to make them full and square on the outside. To

Opinion of the Court.

attain this result, one James P. Thorp made an invention for which he obtained letters patent No. 28,114, granted May 1, 1860, which were reissued to his assignees, H. D. Smith and others, as No. 2,362, September 18, 1866. Thorp's blank was of the following shape: The two projections on the bottom of

the blank were intended to furnish sufficient metal to make the outer corners of the shackle square and sharp, when the ears were bent in the direction indicated by the arrows. The projections were at the places where the arms joined the body. Thorp's patent showed a die for making the blank, constructed with recesses or cavities to form the projections, and stated that, after the arms were bent up, the blank, instead of being of the old form, Fig. 6, with rounded corners, a, a, thus:

Fig.6.

A

B

VOL. CXV-6

Opinion of the Court.

would be of the form of Fig. 7, with square or right-angled corners, a, a, thus:

Fig.7.

B

a

the blank being stronger at the junction of the arms and body, and the expansion of the metal, in bending the arm, being compensated for by a diagonal contraction of the metal, which operated to prevent the destruction of the cohesion of the particles of the metal, and the consequent weakening of the blank at the parts where it was bent.

The next step is shown in letters patent No. 65,641, granted June 11, 1867, to Leander Burns and Josiah Wilcox, on the invention of Burns. That patent shows, in Fig. 7, an upper die M, and a lower die N, and the blank made between them, with square corners, L, L thus:

Fig. 7 is a transverse vertical section taken in the plane of the line y y, in Fig. 6. Fig. 6 is a face view of the lower die, N, and shows also the blank after it is acted on by the dies. The specification states, that, if the arms of the blank are bent up at right angles, in a direction towards each other, perfect square corners will be left at L, L, with the metal through those corners and the other parts of a uniform thickness.