patent or prolonging the time of its continu-, the flour better; and produced morcover a ance; more especially in the present case, gain in the quantity equal to at least fifty where the patent granted in the first instance cents on each barrel; besides various other had been decided, by judicial authority, to be profits and advantages. null and void, on account of some defect in the patent. The jury brought in a verdict of eighteen hundred and fifty dollars damages. At the close of the trial the defendant's counsel abandoned the defence, as untenable, and addressed the jury briefly on the subject of damages. N. B. These damages were given for four Great ingenuity, learning and eloquence years and nine month's use of the machinery, were displayed in the progress of the cause. covering all the time, by consent of parties, And the distinguished genius and merits of up to the period of trial; and for the right to the patentee were rendered conspicuous and use the machinery in future without limitation convincing by the testimony and arguments adduced. The jury brought in a verdict of of time. The second case which was tried, was $1,850 damages. against Charles C. Jones, in which the verdict [The defendant's mill is situated in Montwas for one thousand dollars, damages;-with gomery county, does not work all the year, the same agreement, as to license, as in the grinds twelve barrels per day, and has the preceding verdict. machinery to one pair of stones only, There were verdicts in three other cases, The following concise notice appeared in the with ample damages, which appeared to give papers, shortly after the termination of universal satisfaction.] Evans suits. IMPORTANT LAW CASE. THE MEMORIAL OF JOHN WORTHINGTON, ELISHA TYSON United States of America. On the 3d of December, 1812, came on an interesting trial before judges Duval and To the Senate and House of Representatives of the Houston, in the circuit court of the United States, for the Maryland district, between! Oliver Evans, plaintiff, and Samuel Robinson,That your honorable body, on the 21st of January, defendant, which continued four days. Your memorialists humbly beg leave to represent 1808, passed an act authorising the secretary of state, Messrs. Pinkney, Harper and Williams "on application in writing of Oliver Evans, to cause were counsel for the plaintiff. letters patent to be made out in the manner and form prescribed by the act entited, ‘an act to promote the Messrs. Martin, Purviance, Dorsey and progress of useful arts, and to repeal the act heretoPendleton were counsel for the defendant. fore made for that purpose,' thereby granting to said The controversy arose on an infringement Oliver Evans, his heir, executors, administrators by the defendant of a patent right secured to and assigns, for a term not exceeding fourteen years, the plaintiff under a special act of congress, the full and exclusive right and liberty of making, for his improvements in the art of manufactu-vention, discovery and improvements in the art of constructing, using and vending to be used, his inring flour and meal, and in certain machines, manufacturing flour and meal, and in the several which he had invented, improved, and applied machines which he has discovered, invented, imto that purpose-Which machines are called, proved and applied to that purpose."-That letters an elevator, conveyor, hopperboy, &c. Vari- patent did accordingly issue, which are now in full ous questions of law were raised by the de-operation; and that, by means of them, the patentee fendant's counsel on the constitutionality of is exercising a most grievous oppression over the citizens of the United States; more especially, over the law, the regularity of the patent, the those who are immediately engaged in the manufacpleadings in the case, &c. all which were de-ture of flour. cided in favor of the plaintiff. Witnesses Your memorialists, in any ordinary case, would be were collected from distant and various places the last to remonstrate against benefits which the le with a view to prove that the plaintiff was gislature of their country might think proper to not the original inventor of the improvements confer upon any individual; but believing, as they do, that your honorable body, when you consented for which he had obtained a patent or of some to pass the act of January, 1808, in favor of Mr. part of them. And sundry plates represent Evans, were deceived by artful representations of ing hydraulick machines, which were hereto-merit; and knowing also that Mr. Evans has used fore in use, and in some degree resembling his patent for purposes in which it could never have the plaintiff's elevator, were produced for the been intended to give him aid, your memorialists feel confidently assured, that congress will not hesitate purpose of shewing that he was not the invent- to reconsider the grounds of their former grant, and to do impartial justice between Mr. Evans and the But he succeeded in establishing his pre-rest of his fellow-citizens. tensions to that and every other part of his Your memorialists have understood, and they have patented improvements, including his convey-no doubt of the fact, that when congress undertook or, the invention of which was contested with to renew Mr. Evans' monopoly, they were industriously made to believe that he was the inventor of all him by Mr. Jonathan Ellicott. And he proved the machines for which he solicited and obtained his that his inventions in the art of milling, caused patent. In this your honorable body were most a saving of one half the labor; manufactured grossly deceived. Many of your memorialists have or of that machine. The ist witnessed the progress of several trials that took ligent millers who were examined upon this subject, place at the last term of the circuit court at Balti-in the trials at Baltimore, were so much at a loss to more, in actions instituted by Mr. Evans for infring- discover the beneficial effect of this alteration, that ments on his patent rights; although the result of they said they preferred the spiral conveyor. those trials was such as must give alarm to every great utility of this alteration is rendered still more man who has dared to think of opposing this exorbi-questionable by the fact, that a large portion of the tant monopolist, yet did they prove most incontesti-millers, even those who have paid Oliver Evans for bly, by the investigations to which they led, that the license of his patented machines, do not make Mr. Evans was not the original inventor of any one use of the transverse flights. But your memorialists of his patented machines. Your memorialists entreat are convinced that Mr. Evans was not the author of the patience of your honorable body, while they brief- this alteration. They will be able to show your ho ly detail the testimony relating to this question, such norable body that this improvement, like most of the as it appeared before the circuit court, and such as improvements which Mr. Evans claims, was discoverit can again he exhibited whenever your honorable ed by other persons, from whom he adopted it. body may think proper to require it. The machines 2dly. Of the hopperboy-Mr. Evans, as has been which form the subject of Mr. Evans' patent, are before stated, was not the original inventor of this the "conveyor," the "elevator," the "hopperboy" and machine. Your memorialists admit that he was the the "drill." For greater perspicuity we will state first who added the ropes, leading the horizontal the testimony as applied to cach machine in succes arms around; and that this addition facilitates the sive order. operations of the machine. But, surely, it will not 1st, The conveyor-It was proved that Jonathan be contended that, upon this alteration, congress Ellicott, of Baltimore county, was the first inventor bottomed their grant. This improvement may have of this machine. He had it erected in his mill some been sufficient to entitle Mr. Evans, under the genetime before the year 1786, and applied it to all its ral law, to a patent for the improvement, but for nopresent uses. He shewed it to Oliver Evans, who thing else. It could not have entitled him to a pawas highly pleased with its operation. He said, it teut for other machines which he never invented, nor was all that was necessary to complete his machine-improved; much less can it entitle him to an extenry; that he had long desired to have such a machine sion of his exclusive privilege beyond the usual but could not devise one; and finally, in considera-term. tion that Jonathan Ellicott would permit him to at tach it to his elevator and hopperboy, Oliver Evans Your memorialists come now to the last ground of gave him a perpetual license to use the last. Mr. Evans' pretensions, "that he has the merit of 21, The elevator-This machine has been invented having first applied those machines to their present nearly a century and a half. There are books, a hun-use in mills." This ground was much narrowed by dred years old, that exhibit it (applied to hydraulic the trials, before referred to, in the circuit court at purposes.) The same in principle, form, dimensions Baltimore. It was there shown that the conveyor, and materials with the elevators now claimed by the hopperboy and the drill, were applied by their Oliver Evans as his original invention. original inventors to all the purposes for which they 3d, The hopperboy-A machine upon the same are now used. The elevator is the only machine principle with Oliver Evans' alledged hopperboy, about which there can be the least doubt; and, to worked by the same power, acting in the same manthe minds of your memorialists, there are conclusive ner upon the meal, and producing the same effect, reasons for believing that Oliver Evans was not the although not as beneficially, was invented by Edward person who first discovered the application of this Marshall, of Delaware, and set to work in his mill machine to its present office, the raising of wheat before the time of Oliver Evans' supposed discovery. and flour. Oliver Evans first exhibited his elevator, Mr. Evans lived in the neighborhood of this inven- first informed the world that he had invented one, in the year 1787. Twelve or eighteen months before this time, James Stroud, of the state Delaware, had erected a perfect elevator in his mill. tion. 4th, The drill-The invention of this machine did not come in question before the circuit court, but it is susceptible of undeniable proof that Jonathan El- Mr. Stroud, in the circuit court at Baltimore, relicott, before referred to, was the inventor of it as lated the history of his invention. Standing in his well as the conveyor. mill contemplating the machinery he then had in it, Thus it appears that Mr. Evans' merit as an inven-he observed that as the leather strap turning the fan, tor, in no respects, corresponds with the artful and performed its revolutions, the buckle by which it imposing representations by which your honorable was fastened would catch up a few grains of wheat body were induced to grant him your protection for below, carry them up with it, and empty them ou a second term of fourteen years. So far from having at the top. The thought immediately occurred o invented ALL these machines, he was not the original him that a machine revolving like this strap, with inventor of any one of them. Your memorialists, buckets upon it, would completely perform the office therefore, might here rest their petition; but they of raising his wheat and flour. He constructed it think it proper to notice the other grounds of Mr. accordingly, and found it perfect. This machine is Evans' pretensions. These are, first, that he has in- what is now called "Evans's elevator." Your memovented useful improvements in the structure of the rialists admit that a brother of Oliver Evans declarseveral machines secured by his patent; and, second-ed in the circuit court at Baltimore, that Oliver ly, that he was the first who applied those machines Evans had several years before this period invented to their new use in mills. precisely the same machine; and, that although he The "conveyor" and "hopperboy" are the only ma- did not show it to the world by using it in his mill, chines in which Mr Evans will now attempt to shew yet he had it, and the model of it was locked up in that he has made any improvement. In the elevator a chest, and continued so locked up for several years. and drill he has not made even an alteration. When this testimony comes before your honorable 1st. Then, of the conveyor-The transvere flights, body, it will, no doubt, receive whatever credit, form the alteration which he claims to have made in under all its circumstances, it may be entitled to. this machine. Even if Mr. Evans was the inventor But your memorialists hope they will be pardoned of this alteration, its utility in the manufacture of for believing that there was some mistake in the flour is extremely questionable. Several most intel-matter. Your memorialists have thus candidly detailed the not the original inventor of all and every one of the testimony relating to Mr. Evans's patent. They feel machines in their improved state, nor the original assured that your honorable body, will discover in it combiner and applier of them to produce the useful abundant cause to take this subject again into con- result of his great improvement on the art of manusideration. Your memorialists, however, will take facturing flour and meal, as patented to him, to be the liberty of suggesting other motives of great erroneous. But your memorialist did never expect weight. to be put on this proof, more especially before conWhen congress consented to renew Mr. Evans's gress, seeing that courts are appointed by law for exclusive privilege in 1808, they could not have in- deciding on such disputed points. Yet if required tended to give their law an expost facto operation.-by the honorable congress, although most of his Yet such has been the construction which our circuit most intimate friends, to whom he communicated courts have felt themselves constrained to give to his discovery, years before he made it public, are the act of January 1808. In the circuit court at dead, he believes he can find one in Queen Anne's Philadelphia it has been decided by judges Washing-county, Eastern Shore of Maryland, where your me. ton and Peters, that even those who erected their morialist lived when he made the discovery; one machinery in the interval between the expiration of living in New Castle county, Delaware: one in MifMr. Evans's first patent in 1894 and its renewal in flin county, Pennsylvania, and one in the city of 1808, cannot continue to use them without a license Washington-viz. Évan Evans. under the second patent. The hardship of this con- And to prove that he set up the machinery in his strucuon is extreme. The United States abounds mill in part, on Red Clay Creek, New Castle county, with mills in which the machinery was erected du- and then made it public by presenting a subscription ring that interval, when no law existed to prohibit paper, setting forth the whole improvement, stating it-when no man was aware of any right still re-that in case the neighboring millers would subscribe maining in Mr. Evans; and when the public thought a sufficient sum, your memorialist would make the they were enjoying a property for which they had improvement, which he has since done; but that on already paid the price. But since this construction, the millers refusing to subscribe any thing, and on persons who erected their machinery uuder those being advised by James Latimer, esq. (now deceas circumstances must either pull it down or subject ed) to apply to the state legislatures for exclusive themselves to actions for treble damages or they rights, he took down his machinery, and secreted must consent to pay whatever price the patentee may them until he should receive those exclusive rights; choose to demand for a license. As it regards his that it was after all this that Stroud discovered the charges, your memorialists humbly state, that the elevator; and Marshall and Stroud attempted to act of renewal has imposed no limitation upon Mr. make the hopperboy. He can find witnesses in the Evans; an omission of which he is availing himself state of Delaware, and in Philadelphia to support most oppressively. During his first patent, while the testimony of Evan Evans to whom all is well he was looking forward to his intended application known. In coroboration he may procure copies of for a renewal, Mr. Evans observed a very becoming his petitions to the legislatures of Pennsylvania, Demoderation in his demands. laware, Maryland and New-Hampshire, petitioning Thirty-three dollars was originally the price of his for the exclusive rights for twenty-one or twentylicense to use his machinery in application to one five years, not only for his improvement on manufacwater wheel. But as soon as the act of 1808 had turing flour, but for steam carriages of his invenput the community in his power, he began to ad-tion; and also copies of the acts in his favor of Pennvance, from exaction to exaction, until he now de-sylvania and Delaware for the mill improvements mands about twenty times the amount of his former only, Maryland and New-Hampshire for steam wagcharge and threatens that he will rise still higher. gons also for 14 years; too short a time, had it been From one of your memorialists Mr. Evans has de- for 30 years, steam boats and steam carriages might manded thirty-six hundred dollars for his license.have been in use 20 years ago. This fact, while it shows how oppressively this pa- Thus your memorialist could shew what have been tent bears upon individuals, will enable your honora- his pursuits, and he begs leave to refer to the secreble body to form some estimate of the enormous tary of state's office, to the specifications he has profits which he, the patentee, will derive from a filed there of several other great discoveries, and he general use of his machinery throughout the United declares he has several others yet to file, which he States. Your memorialists will not consent to be-fears he will not be able to put in operation, under lieve that congress intended to let Mr. Evans loose the present patent laws and endless litigation. upon the community with so grievous, so despotic These would shew to your honorable body the a power. They therefore, pray that your honorable great improbability of those men having been the body will again take this subject into consideration, inventors, who now begin to claim the original disthat you may examine the grounds upon which Mr. covery of your memorialist's patented improvement, Evans' patent issued, and do whatever, in your wis-as soon as the great profits thereof begin to appear. dom, you may think fit. And your memorialists will ever pray, &c. Baltimore, January 1, 1813. THE COUNTER MEMORIAL. Your memorialist acknowledges that he has raised the price of his license to use his inventions and improvements, as their value became known, from bestowing them gratis, with his thanks to those who would accept them to make their utility known, to 338, 40$, 100$, up to his present demand, which The memorial of Oliver Evans respectfully shew- In 1786, O. Evans petitioned the general assemeth, That your memorialist has been favored with a bly of Maryland, for a patent to secure an exclusive copy of the memorial of John Worthington and property in his mill machinery and steam carriage: others, and of the evidence accompanying the same, and at April session, 1787, the assembly passed an which he has read with surprise; and your memo-act entitled "an act to grant to Oliver Evans, for a pialist begs leave to declare that he believes he can term of years, the sole and exclusive right of makyet prove every statement in the said memorial is ing and selling within this state the machinery hersevidence, tending to shew that your memorialistd in described." is the sum saved to the user in wages and boarding (ther soon after made a model of his elevator, said Elisha. fore a notary public; and the testimony of colonelry was not a continued spiral screw, but was Enoch Anderson taken before a judge, accompany-a succession of ploughs placed transversely ing this memorial, be deemed and received as part across the spiral line; and this conveyor was of the same; and that he and John Worthington and applied to convey the flour from where it falls others be referred with their cases back to the courts from the mill-stones to the elevator; and that of the United States; and your memorialist will, this conveyor, so constructed and applied, was with the consent of those of the memorialists who are infringing his patent right, commence suits not in operation in any other mill, that he e OLIVER EVANS. Philadelphia, January 22, 1813. 3d. Samuel Wallace, of Delaware, who was 1st. The agent of Oliver Evans in Baltia witness in the suit against Robinson,testified, more, under authority from him, offered to that he lived with Oliver Evans when his first sell a license to Elisha Tyson to use Evans' hopperboy was in operation; that he, Wallace, machinery complete for six pair of six feet hung the door which led to the loft, where the stones, in a merchant mill of the most approv-hopperboy was placed, which was kept locked plan, for fifteen hundred dollars. It was ed, and the key confided to his charge. He to rate as five pair of stones, though the ma- also stated that said Evans had then the model chinery was to be applied to all six, because it of an elevator, which was not put up. was supposed all would not ordinarily run at machines were kept concealed until Evans the same time; but it was expressly stated, could obtain patents from the state legislatures that no further claim should be made, even if-He concurred with other witnesses, that it all six did sometimes run together. No other was notorious then that Evans was the invendemand was ever made of said Tyson, or any tor of the mill machinery. The of his sons, by Evans' agent; nor is it believ- 4th. Thos. Philips, of Delaware, testified as 1782 or 1783, while his brother Oliver Evans 5th. Levi Hollingsworth, formerly of Cœci! 6th. Joseph Marshall, brother of Edw. Mar- this affirmant had a conversation with Oliver Evang shall, was a witness, on behalf of the de- about his invention of the hopper boy, and one was fendant, in the case of Robinson, and gave si-made by this affirmant according to his [the said Oliver Evans'] plan; and another was put up accordmilar testimony to his brother's, whose depoing to the same plan in the mill of said Marshall sition is inserted at length. and Stroud, and were found to answer better than 7th. Col. Enoch Anderson, formerly of De- any other invention or machinery that had ever been laware, now of Pennsylvania, in a written de- previously discovered or made according to the best position, and orally on the trial aforesaid, of this affirmant's knowledge and belief, or has since stated that he was intimately acquainted with been discovered to the best of his knowledge; it beOliver Evans from 1784, that he lived near to ther solemnly declares that from his own knowledge ing the same now in general use. The affirmant furhim, and had almost daily intercorse with and observation, and from all that he has heard from him; that in that year Evans told him he others on the subject, he verily believes Oliver Evans could elevate, convey and cool meal and flour was the first inventor of both the elevator and the by machinery, as fast as it fell from the mill-hopper boy now in common use in mills for manustones, which machinery could be worked facturing flour from wheat; and that he so believed at the time he, the affirmant, was making such mawithout manual labor; that he told him this chinery in the year 1784 or 1785 above mentioned; before any machinery was set up in Stroud as the first idea or notion of the same, was derived and Marshall's mill, or any other that he ever from him, the said Oliver Evans. The affirmant heard of; that when he saw machinery in further says, that the invention of the elevator and the mills of Stroud and Marshall, they admit-hopper boy, with other improvements in making ted it was originally invented by Evans, and flour, for which the plaintiff has a patent, in his opi nion saves one half the labor which otherwise would said they had his permission to use it. He al-be necessary for carrying on the milling business; so details in his testimony many other and mi- and also are causes of great saving, and do the work nate circumstances, relating to the progress of better than could be done by manual labor, in the the invention. mode practised before such inventions. That he hath known Oliver Evans ever since his inventions 8th. OLIVER EVANS, In the circuit court for the and experiments of such inventions in said Marshall aforesaid, and was acquainted with the first trials fourth circuit of the United and Stroud's mill, and knows a great number of States, in and for the dis-mills in which they are used, and that his [the said SAM'L. ROBINSON, &c.) trict of Maryland. Oliver Evans'] claim to the originality of said inven James Stroud, a witness summoned on the part of tions was never disputed in the neighborhood where the defendants, in consequence of the adjournment of they were so first tried, to this affirmant's knowledge, the court, voluntarily testifies, and upon his solemn nor else where, that this affirmant knows of, until affirmation solemnly declares, that he is an inhabi- the cases now under trial. tant of New-Castle county in the state of Delaware, about fifty-three years of age, and has for near thirty years pursued the business of a miller, with only oc casional interruptions, and understands the mechanism of mills for grinding wheat and other grain; he says the first he ever heard of elevators and hopper boys, for which the plaintiff has obtained a patent9th. Edw. Marshall, of New-Castlecounty, was, to the best of his recollection, in the year se, state of Delaware, being solemnly affirmed to venteen hundred and eighty-four or seventeen hun-speak the truth, declares and says, that he is dred and eighty-five; that the first time he ever about forty-eight yoars of age, and was instrucheard of the invention of elevators and hopper boys ted in the business of a miller in early life, and he understood they were invented by the plaintiff, 28. (Signed) (L. S.) Affirmed and signed JAMES STROUD. Oliver Evans: aud that the second time he convers- pursued the same generally as his profession; ed about such an invention was with the said Oliver that about the years 1785 or 1786, this affirmEvans, who said that it was not only practicable to ant's father asked this affirmant what he raise flour, &c. but that it was then in operation al-thought of a machine that would take up the though the deponent had never then seen the ma- flour as fast as it was ground, to which this chinery, nor had he ever heard of any other person affirmant answered that he thought it imposinventing such machinery before the said Oliver Evans. That the first elevator he ever saw was in sible; when affirmant's father replied that Marshall and Stroud's mill in New-Castle county, Oliver Evans said he had invented such a soon after the invention was made known, probably machine. He says this was the first time he in the year seventeen hundred and eighty-five, that ever heard of the elevator; that about this this elevator was principally erected under the care time James Stroud, who rented the lower mill and direction of this affirmant, who had discovered as he believed the principles of the plaintiff's disco- of William and James Marshall, and near to very, for which he [the plaintiff'] had then no patent; the mill of affirmant's father, said that he had that in the same mill he first saw ahopper boy, or found out the principle of the elevator, and machinery resembling a hopper boy, soon after the supposed it to be Oliver Evans' plan, and this experiment of the elevator aforesaid; that this hop-affirmant assisted in making one according to per boy was the production of the joint labor and such discovery; that at first it did not work the owners of said mill, and of the two sons of well, but it was altered so as to answer betsaid William Marhall; on experiment it was found ter. The affirmant says that, after making not to answer the desired purpose. Soon afterwards such elevator, Samuel Stroud invented a hop invention of William Marshall and Samuel Stroud, |