Page:Federal Reporter, 1st Series, Volume 8.djvu/825

OBAMDALL V. BICHABDSON. 81 1 �probably, not limited to the profiles of horses; but extended to any frames which answered the mechanical description of the frames de- scribed, without reference to the profiles of the frames. But the claims of No. 4,223 are more limited in respect to the frames, and requira the frames to exhibit the profiles of horses, besides answering the mecbanical descriptions of the frames described. The admission in the record, in connection with the testimony of Smith, who is sbown by the record to have been first duly s worn, and what is alleged in the bill and not denied in the answer, shows sufficiently that the defend- ants, before the bill was swom to orfiled,made, used, and sold ohildren's carnages containing the improvements covered by claims 1, 2, 3, and 5, of No. 4,223. The bill avers that fact. The answer does not dis- tinctly deny it, but only denies that the defendants havedone so to the injniy of the plaintiffs, or in violation of their rights. The defenoe is want of novelty. In general terms, claim 1 is for profile frames and seat; olaim 3, for profile frames, aeat, and toy-box ; claim 5, for pro- file frames and toy-box; claim 2, for profile frames, seat, foot-board, and rockers. �1. It is contended that Anden made, in 1861, a stracture like Ex- hibit No. 3, containing the profile frames, seat, foot-board, and rock- ers, and which anticipated claims 1 and 2. No original structure then made is now produced. No. 3, now produced, was made in 1877, as an illustration, by John H. Brown, from a drawing received by him from the defendants' book-keeper, and at their request. This No. 3 is almost precisely like the plaintiffs' structure, minus the toy-box and the wheels. It was reproduced after full acquaintance with the plaintiff 's structure. It was not made by Anden. After it was made it was produced on Anden's examination, and was then shown to him before he was asked to describe what he had made iia 1861. Anden says that he made a number of these structures in the winter of 1861, while he was working for a Mr. Christian, in New York. Soon after that he ceased to work for Christian. Hesays he afterwards made some of the structures and had them on sale at a place of his in Mad- ison Street, and sold a few, but found they would not take; that after that he went back to Christian's, and, before doing so, gave away three or four of them and burned the rest; that he left Christian's again, last working for him in 1867, and was employed by Elder & Brown for over three years, and at the same time kept a toy store in Chathaffl street for over two years, of the years 1868, 1869, and 1870. and sold some of these structures at that place; that he has not seen a-iy of them since he left Chatham streot, in 1871 or.l872, and hiia ��� �