TERHUNE
v.
PHILLIPS.

Mr. L.L. Coburn for the appellant.

No counsel appeared for the appellee.

*593 MR. JUSTICE SWAYNE delivered the opinion of the court.

The determination of this case is controlled by Brown et al. v. Piper, 91 U.S. 37. We cannot fail to take judicial notice that the thing patented was known and in general use long before the issuing of the patent. The substitution of metal for wood was destitute both of patentable invention and utility. The admission of improper testimony, if it occurred, was, therefore, immaterial. The case of the appellant as it appears in the record, without any testimony, is clear and conclusive against him.

Decree affirmed.