Peck v. Farrington

9 Wend. 44 | N.Y. Sup. Ct. | 1832

By the Court,

Savage, Ch. J.

The plaintiff, if he recovers at all, must recover on the notes, and on them alone. The notes were given for the machine, and with the machine the running gear was delivered. The whole was included in the notes which were given to Peek, the plaintiff in the record. He is the plaintiff, and the recovery must be in his name. He has no claim except upon the notes; he sold no goods or chattels to the defendants; they were sold by Poppino, who is not a party to the record, although he is the party in interest. It seems to me, therefore, that the only question in the case is whether the exemplification of Earl’s patent and the specification accompanying it were properly received in evidence. The act of congress to promote the progress of useful arts, passed in 1793, expressly provides that the specification of a patented art, machine or improvement, “shall be filed in the office óf the secretary of state; and certified copies thereof shall be competent evidence in all courts, when any matter or thing touching such patent right shall come in question.” This is conclusive as to the specification. As to the exemplification of the patent itself, that stands upon the common law rales of evidence. Where the original document is of a public nature, an exemplification of it, if it be a record or a sworn copy, is admissible in evidence, 1 Stark. 181; and the reason is because public documents cannot be removed without inconvenience and danger of being lost or damaged, and the game document might be wanted in two places at the same time. The law of evidence must have been so understood by congress when they permitted a certified copy of the specification to be evidence, but were silent as to the patent itself. in Catlett v. Pacific Ins. Co. 1 Wendell, 578, it was decided that a copy of a register of a vessel, certified by the register of the treasury, and his official station proved under the seal of the treasury department, was competent evidence.

The objection that the model or drawing was not exemplified cannot prevail; that could not be necessary to enable witnesses of skill to determine whether the machine in question was an infringement. . I am of opinion that the exemplification was properly received in evidence, and that the consideration of the note failed. The plaintiff was not entitled to recover any thing.

A new trial must be granted, with costs to abide the event.