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for the defendant, where it is entirely clear that the plaintiff cannot recover, but not otherwise.'

$ 537. Instructions to juries embody all the law that is applicable to the material facts in evidence. In ascertaining that law, the judges resort to the statutes of the United States, and to the decisions of the United States Supreme Court; and where further information is required, they examine or call to mind the decisions of the Circuit Courts of the United States, for they are inferior in authority to those of the Supreme Court alone;' but the points of patent law which are developed in Circuit Court decisions, are finally established only when determined by the Supreme Court, upon review in that tribunal.' And judges are not bound to conform their instructions to any statements of law contained in any opinion of any court, unless that statement was strictly applicable to the case then before the court which made it. The Supreme Court has sometimes decided cases, after full argument, quite contrary to its own previous obiter dicta; and the circuit court decisions contain hundreds of passing remarks which cannot be harmonized with the positive decisions of the supreme tribunal. The opinions of the best text-writers are sometimes more likely to be followed by the Federal courts, than are the dicta of the judges of those courts, because the best legal authors consider their writings more carefully than the judges appear to consider their dicta, and because neither of these kinds of statements have any more weight than the reasons upon which they are respectively based.

Instructions should not embody the opinions of the judges on any issue of fact. To guard against the observed tendency in judges to overlook this rule in patent cases, it is prudent to require all instructions to be given in writing, that being a requirement which counsel have a right to make in the State courts of most or of all of the States, and that being a point of practice which is consistent with the nature of an action of trespass on the case, and therefore one to be followed in patent actions in the Federal courts.' The danger of irregularity in instructions is much lessened by putting them in writing; and the facilities for correcting such as do occur are materially increased thereby. While he is bound not to tell the jury how to decide any issue of fact, the judge will tell them what issues of fact they are to decide, and those are the issues in the pleadings, and not some other issue which the judge may think is the one upon which the merits of the case really depend.'

· Klein o. Russell, 19 Wallace, 463, 1873; Keyes v. Grant, 118 U. S. 25, 1886.

9 Washburn v. Gould, 3 Story, 157, 1844; Schillinger o. Cranford, 37 Off. Gaz, 1350, 1886.

3 Andrews 0. Ilovey, 124 U. S.

717, 1887.

• Day v. Rubber Co. 20 Howard, 216, 1857 ; Day v. Stellman, 1 Fisher, 487, 1859.

5 Turrill 0. Railroad Co. 1 Wallace, 491, 1863.

$ 538. The verdict in a patent action will be for the plaintiff, if every defence except non-infringement fails, and if that fails as to any one claim of the letters patent.' So also, the plaintiff is entitled to a verdict, where every defence fails except the sixteenth and seventeenth, and where those defences lack application to one or more of the claims shown to have been violated. And he is also entitled to a verdict where the only successful defence is the eighteenth, if his action is based partly on the first term of the patent, and if that term is proved to have been infringed by the defendant. So also, if the twenty-second, twenty-third, or twenty-fourth defence is the only successful one, and if that is successful only as to part of the alleged infringement, the plaintiff' will be entitled to a verdict as to the residue ; and the same thing may be true of the twenty-sixth or of the twenty-seventh defence.

$ 539. A new trial may be obtained by the defeated party, if the jury disregarded the instructions of the judge;' or

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1 Revised Statutes, Sections 914 and 4919.

? Grant 0. Raymond, 6 Peters, 244, 1832.

* Gage v. Herring, 107 U. S. 640, 1882; Gould o. Spicer, 15 Fed. Rep. 344, 1882; Cote v. Moffitt, 15 Fed. Rep. 345, 1883.

3 Waterbury Brass Co. 0. New York Brass Co. 3 Fisher, 43, 1858.

5 Tucker o. Spalding, 13 Wallace, 453, 1881.

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failed to correctly apply them to the issues of the case ;' but not where the only error complained of is an alleged wrong decision of such an issue, unless it was decidedly against the weight of evidence."

Excessive assessment of damages, even where it is undeniably so, does not always entitle the defendant to a new trial. Such an error may be cured by the plaintiff remitting such a sum as the judge thinks constitutes the excess, in all cases where he thinks that the error of the jury arose from inadvertence; but when the circumstances of the case clearly indicate that the error arose from prejudice, or from reckless disregard of duty, on the part of the jury, a new trial will be granted. But no excessive verdict can be corrected by the Supreme Court, unless the nisi prius judge made some error which entitles the defeated party to a venire facias de novo."

Errors made by judges may also entitle a party to a new trial, but no such error will have that effect unless it was excepted to at the time it was committed ; nor where it consisted in erroneous admission of evidence, which the subsequent course of the trial rendered nugatory. So also, where the error of the judge consisted in erroneous instructions relevant to damages, the plaintiff may avoid a new trial by consenting that the verdict be reduced to nominal damages and costs.

Newly discovered evidence may also furnish a good ground for granting a new trial; but not where that evidence might, with due diligence, have been obtained before

1 Johnson 0. Root, 2 Clif. 108, 1862.

2 Alden v. Dewey, 1 Story, 336, 1840; Stimpson o. Railroads, 1 Wallace, Jr. 164, 1847; Allen o. Blunt, 2 Woodbury & Minot, 121, 1846; Aiken 0. Bemis, 3 Woodbury & Minot, 348, 1847; Wilson v. Janes, 3 Blatch. 227, 1854; Bray v. Hartshorn, 1 Clif. 538, 1860; Roberts v. Schuyler, 12 Blatch. 448, 1875.

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the former trial,' nor where it is merely cumulative. But evidence is not merely cumulative, where it refers to facts not before agitated, though it may refer to defences which, in the former trial, were based on other facts.' moving for a new trial upon the ground of alleged newly discovered evidence, must succeed or fail on the strength or weakness of the case as it is disclosed in his affidavits, and in the answering affidavits of the other party; for the moving party is not permitted to rebut the latter; nor will he be entitled to a new trial, if the opposing affidavits make out a strong case against him. When a new trial is granted on the ground of newly discovered evidence, the terms usually are, that the costs of the former trial must first be paid by the applicant.

$ 540. Trials by a judge without a jury require to be so managed that the issues of law and the issues of fact are kept entirely distinct; for his decisions on the former are reviewable by the Supreme Court, while his finding of fact has the same operation as the verdict of a jury. If the finding of the judge be a general one, it is conclusive on all issues of fact, and is also conclusive on all questions of law, except those which arise upon the pleadings, and those which the bill of exceptions specifically presents as having been ruled upon and excepted to in the progress of the trial.' If the finding of the judge be a special one, it will still be conclusive on the facts found; but the sufficiency of those facts to support the judgment will be open to review in the Supreme Court." Where the judge simply finds for the defendant, and enters a judgment accordingly, that judgment can be taken to the Supreme Court for review, only in the regular common law method of a bill of exceptions

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1 Washburn o. Gould, 3 Story, 122. 1844.

? Ames v. Howard, 1 Sumner, 482, 1833.

8 Aiken v. Bemis, 3 Woodbury & Minot, 358, 1847.

* Ames v. Howard, 1 Sumner, 491,

1833.

5 Aiken o. Bemis, 3 Woodbury & Minot, 358, 1847.

6 Revised Statutes, Section 649.

? Insurance Co. o. Sea, 21 Wallace, 160, 1874.

8 Revised Statutes, Section 700.

and a writ of error, and only on pure questions of law.' Where the judge finds as a fact, that the patent is void for want of novelty, or that the defendant has not infringed it, and thereupon enters a judgment for the latter, it is undeniable that the fact so found is sufficient to support that judgment. In arriving at his opinion, the judge may have misunderstood or misapplied the tests of novelty, or of infringement, but still his finding is conclusive; because the Supreme Court is authorized to examine nothing but the suficiency of the facts found.' But if the judge finds that A. B. invented, made, and used a certain described thing in the United States, prior to the invention of the patentee, or that the defendant made, used, or sold only a certain described thing during the life of the patent, and therefore renders a judgment for the defendant; that judgment will be reversed by the Supreme Court on a writ of error, if that court is of opinion that the thing invented, made, and used by A. B. did not negative the novelty of the patent, or is of opinion that the thing made, used, or sold by the defendant did really infringe the patent in suit.' These illustrations of the practice in trials by a judge without the aid of a jury, show that where special findings of facts are adopted as the method of laying a foundation for a review of the case by the Supreme Court, the finding ought to relate to the fundamental facts of the case, and not merely the conclusions of fact which are deducible therefrom.

$ 541. Trial by referee may be instituted by an entry of the clerk of the court, made at the request of the parties, simply indicating that the case is to be referred to the person or persons named, as referee; or it may be ordained by a stipulation in writing, signed by the parties or their attorneys and filed in the case. When that is done, a rule may be issued, or an order of court may be entered, refer

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Revised Statutes, Sections 649 and 700.

* Jennisons 0. Leonard, 21 Wallace, 307, 1874.

3 French v. Edwards, 21 Wallace, 147, 1874 ; Insurance Co. o. Sea, 21 Wallace, 160, 1874.

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