Ames v. Howard et al. The next objection is necessarily out of the case; for the comment attributed to the Court was, upon a suggestion of the defendants' Counsel, immediately withdrawn from the Jury by the Court; and the whole matter of fact contained in Gilpin's deposition, as well as its credibility, was left entirely open and free to the Jury. I cannot say, that they have misunderstood it; or that they have not drawn the right conclusion deducible from it. It was a matter peculiarly within their province; and the ample comments on Gilpin's testimony, at the trial, by the Counsel on both sides, sufficiently evinced, that it was in some parts confused and unsatisfactory, and susceptible of different interpretations. The next objection is, that in point of law the plaintiff is not entitled, without some previous notice, or claim, to maintain this action under his patent against the defendants, for continuing the use of the machines erected and put in use by them before the patent issued. This objection cannot prevail. I am by no means prepared to say, that any notice is in cases of this sort ever necessary to any party, who is actually using a machine in violation of a patent-right. But it is very clear, that in this case enough was established in evidence to show, that the defendants had the most ample knowledge of the original patent taken out by the plaintiff in 1822, and of which the present is only a continuation, being grounded upon a surrender of the first for mere defects in the original specification. Whoever erects or uses a patented machine, does it at his peril. He takes upon himself all the chances of its being originally valid; or of its being afterwards made so by a surrender of it, and the grant of a new patent, which may cure any defects, and is grantable according to the principles of law. That this new patent was so grantable is clear, as well from the decision of the Supreme Court in Grant v. Raymond (6 Peters R. 218), as from the Ames v. Howard et al. Act of Congress of the 3d of July, 1833, ch. 162. There is no pretence to say, that the defendants were bond fide purchasers without any knowledge or notice of any adverse claim of the plaintiff under this original patent; and the damages were by the Court expressly limited to damages, which accrued to the plaintiff by the use of the machine after the new patent was granted to the plaintiff. Without doubt the Jury conformed in their verdict to this direction of the Court. The other original objections may be passed over without notice, and indeed are insupportable in point of law. But another ground for a new trial has been since filed, founded partly upon surprise at the trial, and partly upon the discovery of new evidence applicable to the point, stated at the trial, which constitutes the matter of surprise. It came out in evidence on the trial, in the course of the cross examinations, that the original cylinder constructed by the plaintiff had bars of wood, instead of brass; and one or more of the witnesses asserted, that the brass bars were substituted for wood after the grant of the original patent in 1822. This was explicitly denied by other witnesses on behalf of the plaintiff, who asserted, that the brass bars were substituted before the patent. Upon this point the parties were at issue at the trial; and it was made a strong ground of defence. No application was made to the Court by the defendants for a postponement or continuance of the cause for the purpose of a more full and thorough examination of the point, or to search for farther testimony. The uniform practice of this Court is, in all cases of surprise at the trial by new matters, forming a ground important to either party, and clearly made out by affidavit, to postpone or continue the cause. And if the party interested makes no such application, but elects to go on with the cause, relying upon his other strength to sustain his claim or defence, he is understood to waive the 62 VOL. VI. Ames v. Howard et al. matter of surprise; and he cannot be permitted to take his chance with the Jury, and, if unsuccessful, then to move the matter, as a ground for a new trial. The purposes of justice would be defeated and not advanced by any different course. And Courts, which adopt a different rule, act upon the ground, that in their own modes of trial and practice the party has no opportunity to postpone or continue the cause; but is compellable to proceed in the trial. Upon this short ground, therefore, the objection of surprise is removed from the case. But it is by no means clear, that the matter so waived was, in point of law, a good ground of defence to the action. That depended upon the fact, whether the plaintiff made it by his specification a constituent part of his invention, that the bars should be of brass, and not of wood; for if they might be made of either, consistently with his general claim, then there was no objection to the patent in this respect. Now, the Court was by no means satisfied at the trial, that such was in fact the claim of the plaintiff. But for the purposes of the trial, the evidence was left to the Jury, as if it constituted a complete ground of defence. The Jury so acted upon it; and, having decided against it, as matter of fact, it would be a strong ground for the Court to interfere now upon a mere doubt, whether the plaintiff's claim had in point of law such an extent or not. I do not state this with any other view, than to say, that it is a matter still sub judice, upon which my mind is not so clear, as to induce me to grant a new trial, merely with a view to open anew the discussion of it. But, then, as to the new evidence offered, what is its nature? It is merely cumulative; and the settled practice of this Court is never to grant a new trial upon mere cumulative evidence, where there is no other ground of objection to the verdict. That point has been fully considered in the case Ames v. Howard et al. of Alsop v. The Commercial Insurance Company at this term, (ante, p. 451.) But it has been long since established in the habitual course of proceedings of the Court. The counter affidavits, however, offered on behalf of the plaintiff, go to establish strong cumulative proofs the other way. And under such circumstances, the Court will always decline to interfere; because it will not undertake to measure the weight of the new testimony on either side, or send the parties again to litigation upon the chances of a verdict, upon new conflicting evidence. The defendants have asked, if they may put in new rebutting evidence to the affidavits of the plaintiff, offered in reply to those first offered by themselves. Certainly not. They must present their whole case at once to the Court; and not lead it on through a series of confirming and rebutting proofs, thus protracting the cause to an unreasonable extent. There is another view, which may properly be taken of this point. The special written notice of defence by the defendants actually includes within its reach the very matter now set up as a surprise. It states, that the invention claimed by the plaintiff by his patent in 1832, "is according to the specification thereof wholly different and distinct" from the pretended invention mentioned in the patent of 1822. Of course this notice covers the whole claim of each patent; and it puts in controversy every part of the last patent, which is distinguishable from the first, and does not constitute a part of the invention claimed in the first. The defendant, therefore, was by his own special notice of defence, bound to institute all proper inquiries into the nature and actual structure of the original machine, and all the differences between that and the structure of the machine described in the patent of 1832. If he had used ordinary diligence, it is now manifest, that he might have obtained full evidence to any point, which United States v. Appleton. could properly sustain the defence. He came to the trial, content with the preparation and the points, to which his evidence actually led him; and there can be no reason for letting him into a new trial, merely because he could now, upon farther reflection and farther lights, have made a fuller or a better defence. Interest reipublicæ ut finis esset litium, is an old maxim deeply fixed in the fundamentals of the common law. And Voet beautifully expressed its true reason, when he said, "Ne autem lites immortales essent, dum litigantes mortales sint.1 The motion for a new trial is therefore overruled. Motion overruled. UNITED STATES v. SAMUEL APPLETON. A block of buildings, consisting of a central building and two wings, was erected in 1808, with a piazza in front of the central building, and side-doors in the wings, which opened on and swung over the piazza, the upper parts of which were used as windows. The centre building was occupied by the United States as a CustomHouse, under a lease from 1808 to July, 1816, when they purchased the same in fee, and have ever since been in possession thereof. The wings were sold in 1811 to other parties. Held, that these parties are entitled under the conveyance, independent of the lapse of time, to the use of the side-doors and windows therein, and passage therefrom, as they used them at the time of the conveyance. Where a house or store is conveyed by the owner thereof, every thing passes which belongs to, and is in use for, the house or store, as an incident or appurtenance. TRESPASS quare clausum fregit. The parties agreed to a statement of facts the substance of which is as follows: A certain block of brick buildings, situate on Custom-House Street in Boston, was erected by the owners of the land on 1 Voet. ad Pand., Lib. 5, tit. 1, § 53, p. 328. |