28 ,» I A _ FEDERAL REPORTER. A
timony of those who did not see is somewhat negative in its character,
and such testimony is not really of the same value as the positive
testimony of those who did see. Yet it was the testimony of those
so situated that it seems very probable that if there had been so much
of barbed wire as Mr. Schone claims, it must have arrested their at-
tention. I am inclined to think that, upon a mere balancing of the
testimony of these various witnesses, the preponderance is in favor of
the defendants, as to the existence of some form of barbed wire.; but,
putting yourself in Mr. Schone’s place, and with the purpose which
he says he had in view, what might it be expected you would do?
No man takes unnecessary labor. He says he sharpened the blunt
end of the horseshoe nails; but what for? Would not every purpose
he had in view have been accomplished by simply bending the nail
around the wire, and pounding the two ends together? That would
furnish a barb or pricker, and would be easily made, and it seems
more reasonable and easy of belief that this, which could be done so
easily, and which would answer every purpose, was that which this
village blacksmith did; and that it is scarcely probable that he would
take the pains of sharpening the blunt end of the horseshoe nail and
then coiling this nail around the wire. Putting this consideration
along with that of the conflict in the testimony, I do not think that
it can be said to be clearly or satisfactorily shown that the Glid-
den barbed wire was anticipated by this horseshoe nail barb of Mr.
Schone.
The next fence is the Merrill fence. The facts are these: Two
brothers by the name of Merrill, living on Turkey creek, west or
northwest of Dubuque, in a timber country, claim that in Septem-
` ‘ ber or October, 1873, they invented a barbed-wire fence of substan-
tially the same form as that of Mr. Glidden. The question of time
becomes very material, for in the latter part of October, 1873, Mr.
Glidden filed his application and thus made public his alleged inven-
tion. So far as the testimony discloses, the Merrills did not make
public or disclose their invention until 187 4. It appears that one of
the Merrill brothers became insane from religious excitement in the
forepart of 1874, and was for a short time confined in an asylum.
Immediately thereafter he went east, to New Hampshire, to visit
friends, and, returning in the forepart of the summer, stopped a
short time with a brother in Illinois, who lived a short distance from
the home of Mr. Glidden. While there, conversing with his brother
· in reference to some barbed-wire fence, he said to him that he could
furnish a model of a better fence, and that he would do so on his re-
turn home; and on his return home, in July or August, he sent to his
brother in Illinois a model of a fence substantially like that of Mr.
Glidden.
Now, while it may be true that this was not the first time that the
Merrills were working upon designs fo1· barbed-wire fence, and while,
probably, prior to the insanity of this one, their attention was di-