Evans v. Kremer

8 F. Cas. 874

• Court: U.S. Circuit Court for the District of Pennsylvania
• Decided: April 15, 1816
• Docket: Case No. 4,565
• Status: Published

Opinion

WASHINGTON, Circuit Justice.

That the plaintiff was not the original inventor, is a plea in bar, and if this be' the ground of de-fence, the plaintiff must come prepared to prove that-he was. Had the defendant filed a special plea on this point he need not have set out in his plea, the particular facts on which the plea was grounded, or specified the mills, where the hopper-boy had been used. Neither was it necessary for him to make such specification in his notice, when he chose to avail himself of the permission, granted by the act of congress [1 Stat. 322], of pleading the general issue, and giving the special matter in evidence. The special matter of the defence is, that the plaintiff is not the original inventor, for that the machine was known and used before the time when he claimed to be the inventor; and notice of this was sufficient, without being more specific. This was sufficient to prevent surprise, and to warn the plaintiff to be prepared to maintain his title, in relation to the question of original discovery. To go further, might lead, step by step, to introduce a degree of nicety and precision in these notices, which would be productive of great inconvenience, and would render the privilege of pleading the general issue, rather disadvantageous to the defendant, than a benefit The evidence was admitted.²

Before the opening was concluded, the plaintiff’s counsel, because of the absence of their client, suffered a nonsuit.

2 In the case of Evans v. Eaton [Case No. 4,-559]. the circuit court of Pennsylvania having admitted testimony similar to that which was allowed to be given in this case, upon the same notice; an exception was taken to the opinion of the court, and the principles laid down by the circuit court, in the case of Evans v. Kremer, were recognized and affirmed, by the supreme court of the United States. [Evans v. Eaton] 3 Wheat, [16 U. S.] 503.