Peacock ex rel. Dickinson v. Walker

1 Del. Cas. 533

• Court: Delaware Circuit Court
• Decided: June 15, 1815
• Status: Published

Opinion

Defendant offered to prove a paroi license from Peacock, the patentee, to do so.

But, per Curiam: The Act of Congress is express. Defendant cannot avail himself of a paroi license. The authority must be in writing.

Duval, J., thought, however, this paroi license might be proved to go in mitigation of damages.

Fisher, J., was for rejecting it in toto.

A question then arose, the Court being divided, whether the evidence should be admitted or rejected.

Rodney contended that the evidence could not be admitted. He said it had been repeatedly decided in the state courts that, where the court was divided on an exception to evidence, it was of course rejected, and vide Jones v. White, 1 Str. 60, Thornby v. Fleetwood, 1 Str. 383.

Clayton maintained that the rule in the state courts was to admit the evidence, vide State v. Wooddell et al. (ante 6), a diversity between paroi and written evidence; and the authorities there cited.

Duvall, J.

The practice of the state courts must govern. We will give one half hour to search for precedents.