and they may believe or disbelieve him, as they see proper.-Schuek v. Hagar, 24 Minn. 339.

[o] (Mo. 1870) Questions whether witnesses swear falsely, or what credit is to be attached to evidence, or how far it is contradictory, are solely for the jury in trials at law, and will not be considered in the supreme court.— Bonnell v. United States Express Co., 45 Mo. 422.

[p] (Neb. 1903) The questions whether a witness has willfully and intentionally testified falsely, and, if so, what effect that fact should have on the credibility of his other testimony, are exclusively for the determination of the jury.-Bankers' Union of the World v. Schiverin, 92 N. W. 158.

[q] (N. Y. 1892) In an action by a real estate broker to recover commissions, the nature of the transaction being such as to cast suspicion on plaintiff, and he being the only witness on his behalf, the court erred in directing a verdict for him, but should have submitted the case to the jury.-Condit v. Sill (Com. Pl.) 18 N. Y. Supp. 97.

[r] (N. Y. 1902) While the court has power to set aside a verdict as contrary to the evidence, it cannot grant a nonsuit based on a disregard of any of the evidence as untruthful.-Bell v. Mills, 78 App. Div. 42, 80 N. Y. Supp. 34.

[s] (N. C. 1901) The credibility of a witness is a matter peculiarly within the province of the jury, and depends not only on his desire to tell the truth, but also on his insensible bias, his intelligence, his means of knowledge, and powers of observation.-Cogdell v. Southern Ry. Co., 129 N. C. 398, 40 S., E. 202.

[t] (Ohio, 1899) The fact that assured, knowing that the statements of a fellow townsman were unfavorable, and tending to support the claim that assured was guilty of burning his own property, appealed to such person, who afterwards became a witness in an action by assured against the insurance companies, to make a statement denying such statements, even going so far as to offer small sums of money to have him do so, is not necessarily reprehensible or tending to prove guilt; but the credibility of the assured and the witness, under such circumstances, is a fair question for the jury.-Connecticut Fire Ins. Co. v Carnahan, 10 O. C. D. 186.

[u] (Pa. 1890) Where the testimony of a boy eight years of age is taken in his own behalf, after he has been examined as to his competency, and found to be qualified, and he testifies in a circumstantial manner as to a fact peculiarly within his knowledge, and which, if believed, would prevent his recovery, it is error for the trial judge to disregard his testimony on the mere assumption that he may have been mistaken, especially when he is not recalled to explain or retract the statement.-Sandford v. Hestonville, M. & F. P. R. Co., 136 Pa. 84, 20 Atl. 799, 26 Wkly. Notes Cas. 401.

[v] (Pa. 1903) Where the evidence in an action against a railroad company for personal injuries showed that an agent of the railway had paid certain moneys to boys, who were the only witnesses of the accident, and that counsel for plaintiff was prevented from speaking to the boys in court by defendant's agent, and the agent testified that the money was given to the boys for car fares and luncheons, the court properly left it to the jury to determine whether the payments were legitimate, or made for the purpose of affecting the evidence of the boys.-Enright v. Pittsburg Junction R. Co., 204 Pa. 543, 54 Atl. 317.

[w] (S. C. 1818) Influence which goes to the credibility of a witness is for the jury.-City Council v. Haywood, 2 Nott & McC. 308.

[x] (S. C. 1847) It is for the jury to determine what weight is to be given to the testimony of one whose immoral and degraded life shows a want of religious sentiment, or a disregard to personal character or reputation in society. Bowman v. Smith, 1 Strob. 246.

[y] (Va. 1874) If the testimony of a lunatic is received, its credibility is for the jury.-Coleman v. Commonwealth, 25 Grat. 865, 23 Am. Rep. 711. [z] (Wis. 1905) Whether the rule of "Falsus in uno, falsus in omnibus," applies to the consideration of the evidence in a case is primarily a question for the court, and not for the jury.-Pumorlo v. City of Merrill, 103 N. W. 464.

IX. IMPROBABILITY OF TESTIMONY.

[a] (U. S. 1905) While the credibility of witnesses on disputable facts should be submitted to the jury for their determination, yet where the evidence in respect of a given situation or fact is overwhelmingly persuasive, it is not to be maintained that any evidence to the contrary, however inconsequential and improbable, should carry the case to the jury.—Waters-Pierce Oil Co. v. Van Elderen, 70 C. C. A. 255, 137 Fed. 557; Chambers v. Same, Id. [b] (Cal. 1897) The credibility of witnesses whose testimony tends to establish a controverted fact is for the jury, where there is nothing so manifestly improbable in the character of such testimony as to justify the court in ignoring it.-Fox v. Oakland Consol. St. Ry., 118 Cal. 55, 50 P. 25.

[c] (Cal. 1901) Where, in an action for breach of a contract of marriage, plaintiff and another witness testify positively to the contract, and they are corroborated by other unimpeached witnesses, the court should not reject their testimony, unless so improbable as not to be entitled to belief, but should leave its weight to the jury.-Liebrandt v. Sorg, 133 Cal. 571, 65 Pac. 1098. [d] (Ill. 1907) Where there was evidence which was not incredible, but merely inconsistent with reasonable probabilities, and the circumstances were such that it might be believed by a jury, it required the submission of the question to the jury.-Chicago City Ry. Co. v. Hagenback, 228 Ill. 290, 81 N. E. 1014.

[e] (Me. 1903) The right to a submission of an issue of fact depending on the credibility of a witness does not exist, where the undisputed circumstances show that the story told by a witness on a material issue cannot by any possibility be true, or when the testimony of a witness necessarily relied on is inherently impossible.-Blumenthal v. Boston & M. R. R., 97 Me. 255, 54 Atl. 747.

[f] (N. Y. 1904) Where the testimony of a person injured by a street car, that he looked, and did not see its approach, before he started to cross the street in front of it, is impeached by uncontroverted physical facts, showing that the car was in plain sight, and he therefore either did not look at all, or did not look with care, his credibility is not involved, so as to take the case to the jury.-McKinley v. Metropolitan St. Ry. Co., 91 App. Div. 153, 86 N. Y. Supp. 461.

[g] (N. Y. 1905) Where there is some evidence tending to establish plaintiff's cause of action, though such evidence is incredible, the cause must be submitted to the jury.-Fish v. Utica Steam & Mohawk Valley Cotton Mills, 109 App. Div. 326, 95 N. Y. Supp. 673.

[h] (Pa. 1898) Where, if plaintiff was injured by being run into by a train at a grade crossing in the manner testified to by him, he was not guilty of contributory negligence, and the accident might have happened in that manner, it was error for the court to take the case from the jury, though plaintiff's theory was improbable.—Bruenninger v. Pennsylvania R. Co., 43 Wkly. Notes Cas. 523, 9 Pa. Super. Ct. 461.

[i] (Wis. 1898) The credibility of the plaintiff as a witness in his own behalf is for the jury. It is for them to say, under proper instructions, whether or not the facts testified to by him are within reasonable probabilities, or unreasonable, and not to be believed.-Welty v. Lake Superior Terminal & Transfer Co., 75 N. W. 1022.

X. IMPEACHING OR IMPEACHED WITNESSES, OR WITNESSES SOUGHT TO BE IMPEACHED.

[a] (Ga. 1859) It is for the jury to determine the credibility of a witness whose testimony has been impeached, but in support of whose testimony rebutting evidence has been introduced.-Western & A. R. Co. v. Carlton, 28 Ga. 180.

[b] (Ga. 1873) It is for the jury to determine what credit shall be given to the evidence of an impeached witness.-Shorter v. Marshall, 49 Ga. 31.

[c] (Ga. 1892) Whether or not a witness has been impeached is to be determined by the jury after consideration of all the evidence, including such as has been adduced as to his good character, and his conflicting statements, if any.-Hodgkins v. State, 89 Ga. 761, 15 S. E. 695.

[d] (Mass. 1849) The question of a witness' reputation for truth and veracity is one of fact to be tried by the jury; and it is not competent for the court to institute or allow a preliminary examination of the impeaching witnesses, as to their knowledge and means of knowledge of the reputation of the witness sought to be impeached, and thereupon to receive or reject their testimony according as the court are satisfied or not that they have the requisite knowledge to enable them to testify to the fact in question.-Bates v. Barber, 58 Mass. (4 Cush.) 107.

[e] (Mo. 1886) The question whether a witness has been successfully impeached is a question of fact for the jury.-Osborne v. Oliver, 23 Mo. App. 667.

[f] (N. Y. 1874) Where a party to an action has been sworn as a witness in his own behalf, and witnesses are called by the other party to impeach his evidence, such impeaching testimony should be submitted to the consideration of the jury.-Allis v. Leonard, 58 N. Y. 288.

[g] (Ohio, 1900) It is not the duty of the trial judge to determine, as a matter of fact, whether a written statement, by its silence as to material facts, made by a witness out of court, tends to impeach, or does impeach, his testimony on the witness stand. That question may properly be determined by the jury.-Spaulding v. Toledo Consol. St. Ry. Co., 20 Ohio Cir. Ct. R. 99, 10 O. C. D. 660.

XI. EXPERT WITNESSES.

[a] (Mo. 1889) It is for the court to determine in the first instance whether a witness, who is offered as an expert, possesses the proper qualifications; but the value of the evidence which the witness may give is a question for the jury.-Thompson v. Ish, 99 Mo. 160, 12 S. W. 510, 17 Am. St. Rep. 552. [b] (Mo. 1904) In an action against a street railroad for injuries to a passenger, the weight to be given testimony of street car employés as experts is for the jury.-McNamara v. St. Louis Transit Co., 80 S. W. 303.

[c] (N. Y. 1903) Where expert testimony was introduced by plaintiff, such as, if believed by the jury, would have entitled him to substantial damages, it was error for the court to direct a verdict for nominal damages.-Bjerrum v. Springfield Breweries Co., 83 App. Div. 172, 82 N. Y. Supp. 472.

88 C.C.A.-11

(160 Fed. 943.)

UNITED STATES FASTENER CO. v. CÆSAR et al.
(Circuit Court of Appeals, Second Circuit. March 13, 1908.)

No. 174.

PATENTS-INFRINGEMENT-SEPARABLE BUTTON.

The Pringle patent, No. 720,616, for the stud member of a separable button or fastener, construed, and held not infringed.

Appeal from the Circuit Court of the United States for the Southern District of New York.

For opinion below, see 154 Fed. 671.

Appeal from a decree of the Circuit Court in favor of the complainant in a suit charging the infringement of a patent.

Stephen J. Cox (William R. Baird, of counsel), for appellants.
John P. Bartlett and Thomas W. Bakewell, for appellee.
Before LACOMBE, COXE, and NOYES, Circuit Judges.

NOYES, Circuit Judge. The patent in suit, for an improvement in studs, is No. 720,616, and was granted February 17, 1903, to the complainant as assignee of Eugene Pringle.

The patentee thus states the nature and object of his invention: "My invention relates to studs for separable buttons or fasteners—such, for instance, as are employed on gloves and other articles of apparel; and it consists of structural improvements in the stud member of such fasteners. "The object of my invention is to provide means whereby a stud member of a stud-and-socket fastener adapted to engagement with a complemental socket may be secured in place upon the fabric, leather, or what not by means of an eyelet, of which the barrel passes through the fabric, enters the stud, and is upset or clinched within the stud itself to form a fastening-flange on the barrel by means of a turning-piece or deflector contained within the body of the stud, which deflector by contact with the eyelet-barrel determines the direction and degree of its deflection as the eyelet and stud on opposite sides of the fabric are forced together by means of a suitable tool or press."

The claims of the patent—all of which it is contended that the defendants infringe-follow:

"1. In a member of a stud-and-socket fastener, a stud, comprising a head, an engaging groove below the head, and a flange below the groove, an eyelet-turning piece within the stud, and an eyelet to attach the stud to material, having its tubular portion passed through the material and upset against the eyelet-turning piece.

"2. In a member of a stud-and-socket fastener, the combination of a hollow grooved stud seated on one side of material, a fastening-eyelet therefor, seated on the opposite side of the material and having its stem projected through the material into the stud, and a binding piece, secured to the stud and having a central tubular portion entering the stud and surrounding the stem of the eyelet.

"3. In a member of a stud-and-socket fastener, the combination of a hollow stud, having a head, a base, a groove between the head and base, the stud and base slitted radially, an eyelet-turning piece within the stud, a binding-piece confining the slitted base, and an eyelet, inserted in the stud from below, and upset against the eyelet-turning piece."

The following cuts taken from the defendants' brief and enlarged. from drawings in the patent make the nature of the invention clear

and are so marked as to be self-explanatory; the first illustration showing the structure covered by claims 1 and 3, and the second that specified in claim 2:

The Circuit Court held the patent valid and infringed in all its claims. Upon this appeal we shall consider the questions in their inverse order. If no infringement be found, consideration of the other questions will be unnecessary.

In examining a question of infringement, the primary inquiry is whether every element of a claim is found in the device complained of. If any element, or an equivalent therefor be lacking, there is no infringement. Taking up claims 1 and 3, we find that a material element of each is the "eyelet-turning piece within the stud." The device as