transfer. But if it did, still the plaintiff cannot recover, if he appears not to be the first or original discoverer of the Hopperboy. His claim is not derivative either from the State or from an individual. His suit is founded on his patent, and unless he was himself the original inventor of the Hopperboy, he

cannot recover.

3. Another objection stated by the plaintiff's counsel is, that the Stouffer Hopperboy, although the jury should believe it was in use in many mills before the plaintiff's discovery had fallen into disuse, and therefore cannot be urged to invalidate the plaintiff's right of recovery. The answer to this is, that whether it fell into disuse or not, if it was used before the plaintiff's discovery, the plaintiff could not obtain a patent for it, so as to exclude the defendant from using it, if he chose to do so.

4. The last objection is, that the use of the Stouffer machine cannot affect the plaintiff's patent, unless it was public. Whether that Hopperboy was in public use or not, the jury will judge from the evidence. It was erected and used in four or five mills, if the defendant's witnesses are believed. But this argument has no foundation in the act of Congress, which does not speak of pubIt is immaterial whether the patentee had notice of the prior invention or not. If it was in actual use in any part of the world, however unlikely or impossible that the fact could come to the knowledge of the patentee, his patent for the same machine cannot be supported.

lic use.

1822.

Evans

V.

Hettich.

1822

Evans

V.

Hettich.

March 20th.

A verdict was rendered for the defendant, and exceptions being taken to the above charge, the cause was brought by writ of error before this Court.

Mr. Justice STORY delivered the opinion of the Court.

This case is an action for an infringement of the same patent as in Evans v. Eaton, and many of the remarks in that case are applicable to this; and therefore the opinion now delivered will refer to such points only, as are not completely disposed of by the opinion already delivered. The evidence in this case does not establish, that the defendant used the plaintiff's improved Hopperboy; but the Hopperboy used by the defendant, is asserted to be Stouffer's Hopperboy. At the new trial, a Mr. Aby was offered as a witness by the defendant, to prove the nature and character of the Hopperboy used by the defendant; the plaintiff objected to his testimony, as incompetent, because he was sued by the plaintiff for an infringement of his patent right, under circumstances similar to those alleged in proof against the defendant. The Court overruled the objection; and the witness was then sworn on the voir dire, as to his interest in the suit; but upon a full examination, it did not appear that he was really interested; and the Court therefore permitted him to be sworn in chief. The plaintiff took an exception to this decision of the Court. The objection to the competency of Aby, so far as he has an interest from being sued, cannot

a Ante, p. 356.

be distinguished, in principle, from that already overruled in the case of Evans v. Eaton. There is this additional circumstance in this case, that Aby was not called as a general witness, but to establish a single fact, viz. the nature and character of the Hopperboy used by the defendant. The other objection upon his answers on the voir dire, is disposed of by the single remark that he purged himself of any real interest in the event of the suit. A question was asked of this witness, on his examination in chief, whether the Hopperboy in the defendant's mill was like the model exhibited in Court of the plaintiff's patented Hopperboy; the plaintiff objected to the question, because such testimony could not be given in this case, for want of notice thereof. But the objection was overruled by the Court; and, in our judgment, with perfect correctness. No notice was necessary to authorize the inquiry; and if the plaintiff meant to rely on the notice required by the sixth section of the patent act, in certain cases, it is only necessary to say, that this was not within the provision of that class of cases. The question was perfectly proper under the general issue. Similar objections were taken to other witnesses; but it is unnecessary to remark on them.

An inquiry was proposed by the plaintiff, to one of the witnesses, whether one Peter Stouffer had paid the plaintiff for a license for his mill; but the Court refused to allow the question to be asked; and we see no reason why it should have been allowed, for it merely referred to an act among strangers, which ought not to prejudice the defendant.

A

1822.

Evans

V.

Hettich.

1822.

Evans

V.

Hettich.

similar question was proposed to be asked of the same witness, whether the executors of Jacob Stouffer had paid the plaintiff for a license for the mill of Jacob; the Court overruled the question; and for the same reason, it was rightly overruled.

The deposition of one John Shetter was read in evidence by the defendant, without opposition, and afterwards the plaintiff moved to have the same rejected, because not taken according to the rules of the Court; but the Court refused to reject it and in our judgment rightly, because it having been once introduced with the acquiescence and consent of the plaintiff, he could not afterwards avail himself of the objection.

The plaintiff then proposed to ask a question of a witness, whether Daniel Stouffer was subject to fits of derangement, and whether the witness had said so; but the Court overruled the question. It does not appear distinctly in the record, that Daniel Stouffer was a witness in the cause; but if he was so, the question was properly overruled, because a person being subject to fits of derangement, is no objection either to his competency or credibility, if he is sane at the time of giving his testimony.

The next objection of the plaintiff's counsel, is to the charge of the Court, in summing up the cause to the jury; but the points on which that charge materially depends, have been so fully discussed in the opinion just delivered in Evans v. Eaton, that it is unnecessary to examine them at large.

Upon the whole, it is the opinion of the majority of the Court, that the judgment ought to be affirmed with costs.

(PRIZE.)

The GRAN PARA. The Consul General of Portugal, Libellant.

Prizes made by armed vessels which have violated the statutes for preserving the neutrality of the United States, will be restored if brought into our ports.

This Court has never decided that the offence adheres to the vessel under whatever change of circumstances that may take place, nor that it cannot be deposited at the termination of the cruize, in preparing for which it was committed; but if this termination be merely colourable, and the vessel was originally equipped with the intention of being employed on the cruize, during which the capture was made, the delictum is not purged.

APPEAL from the Circuit Court of Maryland.

This was a libel filed in the District Court of Maryland, by the Consul General of Portugal, alleging that a large sum of money in silver and gold coins had been, in the year 1818, taken out of the Portuguese ship Gran Para, then bound on a voyage from Rio Janeiro to Lisbon, by a private armed vessel called the Irresistible, which had been fitted out in the United States, in violation of the neutrality acts; that the said sum of money had been brought within our territorial jurisdiction, and deposited in the Marine Bank of Baltimore; and praying that the same might be restored to the original Portuguese owners. A claim was filed by one Stansbury, as agent for John D. Daniels, master and owner of the Irresistible, stating him to be a citizen of the Oriental Republic, which was at war with Portugal, and that he was cruizing under the flag

1822.

The Gran Para.