became superintendent of the factory at New London. Dissensions, however, arose before very long between Penrose and Hebbard; and the latter, about July 20, 1892, left the Standard Keystone Company, went to Elizabeth, in the State of New Jersey, and there became superintendent of another similar organization, the Empire Target Company. Penrose reorganized and continued his company at New London.

About the middle of March, 1890, which was some time before the attempted consolidation of the two companies at Cleveland and Corry, Penrose went to a factory in or near Philadelphia for the purpose of having a machine manufactured there to make composition targets, taking with him a patent that had been issued to David Swan, one of his employees at Corry, and which had been assigned to Penrose, as the model from which the machine was to be constructed. The factory belonged to William Wolstencroft & Sons, some of whom afterwards became associated with Penrose in his factory at New London. The Wolstencrofts introduced Penrose to one of their machinists, William H. Soley, the appellant in this case; and to him Penrose stated what he desired. Upon inspection of the Swan patent and the drawings annexed to it, Soley found it quite objectionable, and suggested to Penrose that he could construct for him a machine that would be free from the difficulties apparent to him in the Swan patent. He then and there drew a sketch of what he proposed, and handed it to Penrose; and Penrose took it away with him. apparently came of the matter at the time. Soley was not employed to make the machine, or to give any effect to his own idea. He states in his testimony that he gave the sketch to Penrose "to do as he pleased with," although he now claims that he did not thereby intend to abandon the invention, and that he understood that the sketch was to be submitted by Penrose to his own machinist for the opinion of the latter. And when he was asked why he had not

Nothing further

in due course of time applied for a patent, his statement was that the Wolstencrofts attended to all patents for him. The Wolstencrofts, however, do not confirm this statement; and there is no proof of their ever having taken out any patents for Soley or on his account. At all events, there was no movement by Soley, or by anyone on his behalf, to follow up his invention in any manner until after the lapse of about three years, in April, 1893, when his application was filed in this case. Penrose and Hebbard had then quarrelled; and Penrose immediately appeared as the assignee both of Dunbar's unfounded patent and of Soley's rights, whatever they were. Penrose, therefore, and not Soley, is the real party in interest; and the controversy is, in fact, a contest between him and Hebbard. Soley is only a nominal party, although a proper one. The relation of the

parties, however, is proper to be remembered in our estimation of the testimony.

Penrose claims that he communicated Soley's idea to Hebbard, and gave to the latter the sketch that had been given to himself by Soley. Hebbard positively denies that there was ever any such communication to him by Penrose or by any one else, or that he had ever seen the sketch, or that he had ever heard of Soley or of his invention, before he made his own application in this case for a patent. This is substantially all the direct testimony there is upon this vital point of the controversy; and the indirect testimony that is supposed to bear upon it does not seem to us to weigh much upon one side or the other. Inasmuch as the interview between Penrose and Soley occurred several months before the consolidation of the two companies controlled respectively by Penrose and Hebbard, and consequently a considerable time before there were any such business relations between these two as would warrant such a communication to Hebbard, it is only reasonable to suppose that Soley's sketch and Soley's idea were communicated by Penrose, not to Hebbard, but to Swan, his machinist

at the time, and that for some reason they were cast aside, and never afterwards taken up. Indeed, Penrose admits that his first communication of the Soley process was to Swan, and that it was abandoned for the time being in consequence of objection by Swan. He claims, however, that after the consolidation it was taken up again, and prosecuted to success by Hebbard.

But there are two conceded facts that go far to show that Penrose is mistaken in this matter, and that he should be precluded from contesting Hebbard's right. The first is that before Hebbard had made his application and while he was still in the employment of the New London Company, Penrose had admitted the invention to be that of Hebbard, and had entered into an agreement with him for a consideration to take an assignment of one-half interest in the patent that should be procured therefor by him; and the second is, that after the application had been made by Hebbard and before there arose any final disagreement between him and Penrose, the latter, on June 30, 1892, wrote to the attorneys in Washington, who were soliciting the patent for Hebbard, a letter, in which he positively and unequivocally admitted the invention to be that of Hebbard, and that Hebbard was to assign one-half interest to him. Neither then nor for several months afterwards was there any mention whatever of Soley. And yet, if Penrose then knew Soley to have been the true inventor, and not Hebbard, as he must have known, if hist present claim is well founded, it was his duty at that time to recognize Soley's right. His attempt to push the application for Hebbard would have to be regarded as a fraud upon Soley. It is sought to excuse or defend his action on the ground that he was ignorant of the patent laws, and apparently also of the Constitution of the United States. But if ever the maxim applies that ignorance of the law shall excuse no man, the present is the proper occasion for its application. That an employer may assume that he may allot the brain work of his employees as he pleases, and

take out in the name of one a patent for an invention which he knows to have been made by another, because it may in some way suit his convenience so to do, is an assumption that must be repudiated by the common sense of mankind. We have said that, in our opinion, it was incumbent upon the appellant, or upon his assignee acting for him, to show by a preponderance of evidence that the prima facie right existing in the appellee should be subordinated to some better right existing in the appellant; and that, unless there is such a preponderance, the cause of the appellee, as that of a defendant in possession, should prevail. We are disposed, with the Commissioner of Patents, to regard the preponderance of evidence as being with the appellee. No such case has been made out by the appellant as would warrant us to regard the presumption in favor of the appellee as overcome; nor do we find any reason to disturb the decision of the Commissioner.

The decision of the Commissioner of Patents is, therefore, affirmed. And the clerk will certify this opinion and the proceedings in this cause to the Commissioner of Patents, according to law.

HARDY v. WISE.

PLEADING AND PRACTICE; DEMURRER TO EVIDENCE;

EXCEPTIONS.

1. A prayer to direct a verdict is similar to a demurrer to evidence, and is tested by the same rules.

2. A demurrer to evidence admits the truth of the evidence as given and all legal deductions from it in favor of the opposing party.

3. Where in the trial of an issue involving the testamentary capacity of a testator, the testimony of the caveators, if true, would justify a verdict in their favor, it is proper for the trial court to refuse to direct a verdict on that issue for the caveatees.

4. A ruling by a trial court overruling an objection that the crossexamination of a witness was extended to matters that should have been brought out in the direct examination, is not proper subject of exception.

No. 365. Submitted December 5, 1894. Decided January 7, 1895.

HEARING on an appeal by the caveatees based on exceptions taken upon the trial of issues framed on the caveat of a will, and from an order of the Orphans' Court refusing probate of the will on the verdict found. Affirmed.

The FACTS are sufficiently stated in the opinion.

Mr. Henry E. Davis for the appellants.

Mr. R. Ross Perry and Mr. Frank T. Browning for the appellees.

Mr. Chief Justice ALVEY delivered the opinion of the Court:

This is an appeal from the rulings of the court made in the course of the trial of certain issues framed on caveats to the will of Dr. Thomas W. Wise, deceased, and the order of court refusing probate to the will on the verdict found. The deceased died in this city on the 17th day of February, 1892, and the paper purporting to be his last will bears date the 15th of February, 1892, two days before his death. He was a widower, and left no descendants, but he left surviving him one brother and five sisters. He had made a previous will, dated July 30, 1891, in which he had made a different disposition of his property from that made by the last paper executed by him; and which former will has been admitted to probate since the trial of the issues framed on the caveats to the last paper.

The issues framed and sent to trial were three: 1st. Want of testamentary capacity of the decedent to make a valid will; 2d. Fraud, and 3d. Undue influence exercised by certain persons in obtaining the will.

Upon these issues the case was twice tried by jury, and on