26 .i .,$» r » rmnnmn maroursn. ‘
_1858~or,1S59_, some 25 years ago, at a county fair held at the county
seat, there was exhibited a fence which, according to the recollection
of someof the witnesses, consisted of three strands of wire, on which
were fastened barbs like those on the Glidden, and also a board be-
low the wire for the purpose of attracting the attention of the cattle.
While several witnesses testify to their recollection of` such a fence,
and the similarity of the barbs thereon to the Glidden style of barb,
other witnesses, including therein the officers of the fair association
during those years, have no recollection of anything of the kind. That,
of-course, is to some extent negative testimony; yet of value. Then
there is a line of testimony to show that there was a model of a fence,
essentially different from anything in controversy here, circulated in
thatvicinity and exhibited at that fair. But take the testimony of
the defendants alone in reference to the fence. Can you rely on the
recollection of witnesses reaching back over 25 years as to the particu-
lar form in which a fence seen but for a day or two was constructed ?
It would be strange if that recollection was so clear and distinct as
to the manner in which those wires were barbed or protected by prick-
ers,·that the court would be justified in relying very much thereon.
The iniirmities of human memory are such that it does not seem to
me that, even if there was no `contradictory testimony, their testi-
mony alone would enable the court to say that it was clear that away
back in 1858 or 18591, somebody——who he was is not disclosed, and
whence he came, or whither he went, nobody knows-presented there
a model, of a fence withthe combination contained in the Glidden
patent. I do not have any trouble with that question.
The Freeman fence was also not dillicult to my mind. He testi-
fied` that many years ago, on his father’s farm, finding that a single
wire on a smooth wire fence had broken, he tried to patch it. The
wire being broken, he could not well fasten the two ends together, so
he took a link or strip of wire, making a loop in each end of the
broken wire, and fastening the link or piece of wire to these two loops,
and twisting the ends of the linking wire around the loops. I had be-
fore me as an exhibit a couple of links which he claims to have taken
from the fence a few years ago, after inquiry arose in regard to it. It
is so essentially different in its construction and idea from this barbed
wire of Glidden’s, that I do not think it is worth much consideration.
I do not doubt the substantial truth of his testimony, for I suppose
that that which he says he did has been done, wherever wire has
been broken, ever since it has been used for fencing. He found it
so eflicient in keeping cattle away that he said he made quite a
string of it. But the whole idea expressed by that form of prepara-
tion of wire is so foreign to that of this Glidden patent, that, afte1· I
had looked at his links- and read the testimony through, I had no dif-
ficulty about that.
The Schonc fence is a little more difficult of determination, taking
them in the order of their magnitude. The Schone fence is this: