Elijah Phelps, Plaintiff In Error v. Jacob Mayer

• Decision Date: 01 December 1853
• Citation: 14 L.Ed. 643,56 U.S. 160,15 How. 160
• Parties: ELIJAH PHELPS, PLAINTIFF IN ERROR, v. JACOB MAYER
• Court: U.S. Supreme Court

56 U.S. 160

15 How. 160

14 L.Ed. 643

ELIJAH PHELPS, PLAINTIFF IN ERROR, v. JACOB MAYER.

December Term, 1853

Mr. Justice Curtis did not sit in this cause, having been of counsel for the patentee.

THIS case was brought up by writ of error from the Circuit Court of the United States for the District of Indiana.

It is not necessary to state either the facts or arguments of the case, inasmuch as it went off upon a point of practice.

It was argued by Mr. Ewing, for the plaintiff in error, and Mr. Jernegan, for the defendant in error.

Mr. Jernegan thus noticed the point upon which the case went off.

A preliminary objection arises. It appears from the record that the verdict was rendered on the 13th of December, and the bill of exceptions filed on the 14th. No exceptions were taken on the trial. It is therefore too late now to object to the instructions of the court, or its refusal to give the instructions required. 11 Peters's Rep. 185; 6 Blackford's Rep. 417; Cully v. Doe, 11 Adolph. & Ellis, 1008, note.

Mr. Chief Justice TANEY delivered the opinion of the court.

This action was brought by the plaintiff in error against the defendant in the Circuit Court of the United States for the District of Indiana, for the infringement of the plaintiff's rights under a patent granted to him for a new and useful improvement in the application of hydraulic power. The case was submitted to a jury under certain directions from the court, and the verdict and judgment were for the defendant.

This writ of error is brought for the purpose of revising this judgment—and the case has been fully argued upon the charge given by the Circuit Court, and also upon its refusal to give sundry directions to the jury which were requested by the plaintiff.

But, although it appears by the certificate of the judge, sent up as part of the record, that these instructions were given and refused at the trial, yet it also appears that no exception was taken to them while the jury remained at the bar. The verdict was rendered on the 13th of December, and the next day the plaintiff came into court and filed his exception. There is nothing in the certificate from which it can be inferred that this exception was reserved pending the trial and before the jury retired.

The defendant in error now objects that this exception was too late, and is not therefore before this court, upon the writ of error. We think this objection cannot be overcome.

It has been repeatedly decided, by...