On the trial béfore
the defendant set up the defence of a want of novelty in the invention, and to support it introduced a witness, Hosea W. Holmes, who swore that in 1819, in Stonington, Connecticut, he assisted in constructing a water wheel embracing the principle of the patentee’s invention; that it was constructed for a man who lived twelve miles distant from Stoning-ton, and was carried away by him to be put into a mill; and that the witness never saw it afterwards. _
In charging the jury, NELSON, Circuit Justice, remarked, that if the wheel spoken of by the witness, Holmes, was constructed before the plaintiff’s wheel, and was a perfect wheel, and was taken away to be used, the evidence, if believed, was sufficient to establish the fact of a want of novelty in the plaintiff’s wheel, although there was no evidence that the prior wheel was ever actually used.
The jury found a verdict for the defendant