The court erred in overruling the objection of the plaintiff in error to the question asked by the attorney for the defendant of the witness Kirkpatrick respecting the contents of the records kept by the plaintiff as a distiller, when said records were not shown to have been lost in the manner necessary before parol proof of their contents can be heard.

The court erred in overruling the objection of the plaintiff to the answer and testimony of the witness Kirkpatrick respecting the contents of the distillery books kept by the plaintiff as distiller, which said testimony, it is believed, tended to bar the plaintiff's recovery, when said books had not been shown to have been lost, and due search was not shown to have been made for them in their proper repository.

The statute (section 3318, Rev. St.), after providing for the books to be kept the record referred to also provides, section 5, Act March 1, 1879 [U. S. Comp. St. 1901, p. 2164], "that every person required to keep the books prescribed by this section, shall on or before the tenth day of each month make a full and complete transcript of all entries made in such book during the month preceding, and after verifying the same by oath, shall forward the same to the collector of the district in which he resides." A penalty is imposed for failure to comply with the statute. There is no evidence of a failure to make or file the transcript, which the collector is required to preserve until authorized by the Commissioner of Internal Revenue to destroy the same.

The law then requires two records to be kept: One by the distiller or rectifier, which he is required to preserve for two years. This was taken from him by the revenue officers. The other, a verified transcript, which was filed in the office of the collector of the district. The first was the best evidence, and the transcript the second best evidence, if, indeed, it was not of equal dignity as evidence. Both of these records were in the hands of officers of the government, and at least one in the custody of the defendant himself. It is not necessary to cite authority for the proposition that the best evidence must be produced, or an inability to produce it satisfactorily shown before secondary evidence can be permitted. No search was made. The evidence establishes the fact that the record was taken from the plaintiff and carried to the collector's, office at Statesville in 1889. Shortly thereafter it was taken to the revenue agent's office at Greensboro, and there it was last seen in 1893 or 1894, three years after the final disposition of the criminal case against the plaintiff. It was further in evidence that search had been made in the office of the revenue agent, where this book was last seen. This the court held sufficient evidence of its loss to authorize secondary evidence to be introduced as to its contents. No search was made in the collector's office where the transcript-the one on which the assessment is made-is required to be filed, nor in the office of the clerk, where the original had been used as evidence in a criminal proceeding against the plaintiff. The revenue agent told the counsel his office was not the place where the record would be found, and intimated search should be made in the collector's or clerk's office. This is called flippant by counsel for the United States, but it seems to be good law.

131 F.-5

The counsel for defendant in error cite and rely on Minor v. Tillotson, 1 Pet. 99, 8 L. Ed. 621, which has no application. In that case plaintiff offered to show a copy of a grant to Gen. Wade Hampton, under which the plaintiff claimed title to certain lands, which was excluded by the court on the ground that the plaintiff had not accounted for the loss of the original. It was in evidence that search had been made among the papers of Gen. Wade Hampton. Mr. Justice Thompson, in commenting upon this case, says:

"The presumption of the law, therefore, is that the original deed was in possession of Gen. Wade Hampton, and the plaintiff could not be bound to search for it elsewhere; there being no law in Louisiana requiring deeds to be recorded. And it was proved, as a matter of fact, that it was once in his possession-at what time, however, is not stated-and the question is whether such search was made for it as to justify the admission of secondary evidence. The rules of evidence are adopted for practical purposes in the administration of justice, and although it is laid down in the books as a general rule that the best evidence the nature of the case will admit of must be given, yet it is not understood that this rule requires the strongest possible assurance of the matter in question. The extent to which the rule is to be pushed in a case like the present is governed in some measure by circumstances. If any suspicion hangs over the instrument, or that it is designedly withheld, a more rigid inquiry should be made into the reason for its nonproduction. But when there is no suspicion, all that ought to be required is reasonable diligence to obtain the original."

Here there was other evidence, better evidence, record evidence, which could have been, and should in all fairness have been, produced. A more rigid inquiry should be made into the reason for its nonproduction. When a record is required by law to be kept, oral evidence of its contents cannot be offered unless the loss of the record is shown. Greenleaf on Evidence, § 86. The same is true of all writings, whether required to be kept or not, where the contents are material to the issue.

It is well settled that the loss of a writing must be proved, and that diligent search has been made therefor, before secondary evidence will be allowed for the purpose of proving its contents-"that a bona fide and diligent search has been unsuccessfully made for it in the place where it was most likely to be found, if the nature of the case admits such proof." As to the degree of diligence required, "the party is expected to show that he has in good faith exhausted, in a reasonable degree, all the sources of information and means of discovery which the nature of the case would naturally suggest, and which were accessible to him." Greenleaf on Evidence, § 558; Simpson v. Dall, 3 Wall. 460, 18 L. Ed. 265; Improvement & R. R. Co. v. Munson, 14 Wall. 442, 20 L. Ed. 867; Weatherhead's Lessee v. Baskerville et al., 11 How. 360, 13 L. Ed. 730; Bouldin and wife v. Massie's Heirs and others, 7 Wheat. 122, 5 L. Ed. 414; Rogers v. Durant, 106 U. S. 644, 1 Sup. Ct. 623, 27 L. Ed. 303; Renner v. The Bank of Columbia, 9 Wheat. 581, 682, 6 L. Ed. 166.

In Riggs v. Tayloe, 4 Wheat. 486, 6 L. Ed. 141, the Supreme Court lays down the rule:

"If a party intended to use a deed or any other instrument in evidence, he ought to produce the original if he has it in his possession, or, if the original is lost or destroyed, secondary evidence, which is the best the nature of the case allows, will then be admitted. The party, after proving any of these cir

cumstances, to account for the absence of the original, may read a counterpart, or, if there is no counterpart, an examined copy, or, if there is no examined copy, he may give parol evidence of its contents."

This rule has been often cited with approval-notably in Williams v. United States, 1 How. 299, 11 L. Ed. 135; Burton v. Driggs, 20 Wall. 134, 22 L. Ed. 299; Stebbins v. Duncan, 105 U. S. 43, 27 L. Ed. 641.

In the case at bar there was a counterpart which was not looked for, and all the sources of information had not been exhausted; hence there was error in admitting parol testimony as to the contents of the record. The plaintiff in error is therefore entitled to a new trial. Reversed.

VICTOR TALKING MACH. CO. v. AMERICAN GRAPHOPHONE CO. (Circuit Court of Appeals, Second Circuit. April 21, 1904.)

No. 158.

1. PATENTS-INFRINGEMENT-TALKING MACHINES.

The Johnson patent, No. 679,896, for a sound box for talking machines, held not infringed, as to claims 7, 11, and 16.

Appeal from the Circuit Court of the United States for the District of Connecticut.

For opinion below, see 125 Fed. 30.

This cause comes here upon appeal from a decree of the United States Circuit Court for the District of Connecticut dismissing at bill alleging infringement of complainant's patent No. 679,896, granted August 6, 1901, to Eldridge R. Johnson, for a sound box for talking machines.

Horace Pettitt, for appellant.

Philip Manro, for appellee.

Before WALLACE, LACOMBE, and TOWNSEND, Circuit Judges.

`PER CURIAM. The single question herein is that of infringement of claims 7, 11, and 16. Each of these claims is limited to a construction comprising "a tempered steel spring," or "a thin, twisted spring," having twisted ends. The essential element of the invention claimed in the patent in suit is the provision of means for "a very delicate connection between the diaphragm and the stylusbar; also to provide an extremely sensitive mounting for the stylusbar"; said means comprising a spring "made of finely tempered steel," each end being "twisted or bent in opposite directions," so as to secure a balance by the resultant high tension of the spring. The defendant does not use a finely tempered steel for said connection and mounting. Its attaching piece is made of low-grade sheet steel, soldered to the bar by a process which would necessarily destroy the temper, if any, in said piece. It clearly appears from the evidence, and was shown by a practical demonstration upon the hearing, that these attaching pieces were not resilient, but that

they remained in any position in which they might be bent or twisted. It further appears that defendant's attachment is not twisted, but is inserted as nearly flat as is practicable, in order to avoid all tension on the stylus-bar. Hence result two radically different constructions, based on opposing theories as to the effect of high tension as contrasted with low tension or no tension. These conclusions dispose of the contention of infringement as to all of said claims.

Claim 16 also covers "yielding gaskets, adjusted so as to prevent the said diaphragm from rattling, yet leaving it free to vibrate throughout its entire area." Such gaskets were old. The patentee, in a prior patent, had described and claimed a construction for so mounting the diaphragm that it would vibrate "practically evenly throughout its entire area," and the specifications and said claim of the patent in suit fail to suggest any definite degree of pressure, except such as may, in the judgment of the constructor, be best adapted to secure the best results. The patentee says:

"While I have described the diaphram as being practically free at its edges, it is clear that, while this construction of adjustment is preferable, my improvements herein described and claimed are applicable to constructions wherein the diaphram may be clamped at its edges."

The decree is affirmed, with costs.

LACKAWANNA IRON & STEEL CO. et al. v. DAVIS-COLBY ORE
ROASTER CO.

(Circuit Court of Appeals, Third Circuit. July 5, 1904.)

No. 62.

1. PATENTS-CONSTRUCTION OF CLAIMS-ORE ROASTING FURNACES.

The Greer patent, No. 508,542, claims 3 and 8, for an ore roasting furnace, consisting of three vertical chambers, a combustion chamber, a stack, and an ore chamber between the other two, and communicating with each "at different points in its height," "substantially as described," "the combustion and ore roasting chambers being of substantially the same height," require all three chambers to be substantially coextensive, as shown in the drawings.

2. SAME-INFRINGEMENT.

The Greer patents, Nos. 495,883 and 508,542, for an ore roasting furnace, made up of three vertical chambers, each coextensive with the other two, the center one being a roasting chamber to hold the ore, and having openings at several points into each of the others, a combustion chamber on one side, fed from below by fuel gas intermixed with air, and a stack chamber on the other side, the draught created by which draws the flames from the combustion through the roasting chamber, were not anticipated, and are valid. Claims 3 and 8 of patent No. 508,542, covering the combination of the three chambers, and claims 3 and 4 of No. 495.883 and 4 and 5 of No. 508,542, covering a gas chamber in the base of the combustion chamber, having in its top exit openings for gas and air ports adjacent, construed, and held infringed.

Appeal from the Circuit Court of the United States for the Middle District of Pennsylvania.

For opinion below, see 128 Fed. 453.

Percy B. Hills, for appellants.

Henry N. Paul, Jr., and Joseph C. Fraley, for appellee.
Before ACHESON, DALLAS, and GRAY, Circuit Judges.

GRAY, Circuit Judge. This is an appeal from the decree of the Circuit Court for the Middle District of Pennsylvania, sustaining certain claims in two patents, granted to Robson C. Greer, for ore roasting and calcining furnaces, and assigned to the appellee, and decreeing an injunction and an accounting against the appellants, for an infringement thereof by an ore roaster first erected and operated at Scranton, Pa., and afterwards removed to Lebanon, Pa., where it now stands.

The Davis-Colby Ore Roaster Company, the appellee, is engaged in the business of erecting ore roasters, which are large furnaces in which iron ore (which is to be subsequently smelted or reduced in a blast furnace) is given a preparatory moderate heating in a draught of oxygen, for the purpose of expelling sulphur contained in the ore. Appellee's principal place of business is in Philadelphia, and the appellant, the Lackawanna Iron & Steel Company, is a large manufacturer of steel, having its main works, which were formerly at Scranton, Pa., in Buffalo, N. Y. Henry Wehrum, manager of the appellant company, is joined as a codefendant in the court below.

The bill of complaint charges the defendant with having built at Scranton, Pa., an ore roaster which infringes upon three of complainant's patents, covering what is known as the "Davis-Colby Ore Roaster." These three patents comprise the two Greer patents, above mentioned, and a patent granted to Owen W. Davis, also assigned to the appellee. Upon final hearing, the court below dismissed the bill as to the Davis patent, but sustained the two Greer patents, and found that they had both been infringed. The usual injunction and accounting was accordingly decreed upon these two patents, and from this decree the defendant has appealed.

The patents, therefore, brought before us upon this appeal are: No. 495,883, dated April 18, 1893, granted to Robson C. Greer, and as to which infringement is held as to claims 3 and 4 thereof; No. 508,542, dated November 14, 1893, to Robson C. Greer, infringement of which is held as to claims 3, 4, 5 and 8 thereof.

Infringement of the third and eighth claim of the Greer patent, No. 508,542, is admitted by the appellant, who claims, however, that the said claims are invalid by reason of anticipation. These claims are dominant and controlling in the structure of the Davis-Colby Ore Roaster, covering as they do the three coextensive vertical chambers, to wit, the combustion chamber, the air chamber and the draught equalizing chamber. The other claims involved are the third and fourth claims of Greer patent No. 495,883, and the fourth and fifth claims of Greer patent No. 508,542. These claims cover the gas and air inlets for the combustion chamber.

The discussion of the prior art, by appellant's counsel, in support of the defense of anticipation, is confined to the patent granted in 1870 to Knox and Osborn, No. 104,323, and to the patent to Valentine, No. 459,799, granted in 1891, and to the patent to Kleeman, No. 399,995,