PEACOCK v. WALKER, 1 Del. Cas. 533 (1815)

Clayton’s Notebook, 47

PEACOCK, for the Use of DICKINSON, v. WALKER.

Circuit Court of the United States of Delaware, New Castle County.
June, 1815.

This was an action for treble damages for making and vending Peacock’s patent ploughs.

Page 534

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

But, PER CURIAM:

The Act of Congress is express. Defendant cannot avail himself of a parol license. The authority must be in writing.

DUVAL, J., thought, however, this parol 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 parol 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.