Kilbourne v. The State Savings Institution of St. Louis. of the property into the power and possession of the consignees. The surrender of possession by the master must be attended with no fact to impair the title or affect the peaceful enjoyment of the property. The failure to enter the property on the manifest was a cause of confiscation from the event, and rendered nugatory every effort subsequently to discharge the liability of the ship and owners. The appellants complain that the proof does not support the decree in respect of the damage assessed. One witness testifies to the market value of the packages in Rio de Janeiro, and another approximates their cost in New York, and upon this testimony the assessment was made. It was competent to the appellants to introduce testimony in the circuit court, or in this court, upon that subject, but none has been submitted. We should not be justified in concluding the decree to be erroneous under the circumstances. Decree affirmed. EDWARD KILBOURNE and others v. THE STATE SAVINGS INSTITUTION OF ST. LOUIS. 22 H. 503. PRACTICE IN SUPREME COURT. Where no question was raised by the plaintiffs in error in the court below for the consideration of this court, and none is raised here by counsel or otherwise, the judgment will be affirmed with damages for delay. WRIT of error to the district court for the district of Iowa. There was no appearance for plaintiffs in error. No error was alleged or apparent in the record. Mr. Blair and Mr. Polk, for defendants in error. [* 504 ] * Mr. Justice WAYNE delivered the opinion of the court. No question was raised upon the trial of this case in the court below, for the consideration of this court, nor have the plaintiffs in error, by counsel or otherwise, made one here. The writ of error was obviously sued out for delay. We direct the affirmance of the judgment and ten per cent. damages. Order. It is now here ordered and adjudged by this court, that the judgment of the said district court in this cause be and the same is hereby affirmed with costs and interest at the rate of ten per cent. per annum. ANSON, BANGS & Co., Appellants, v. THE BLUE RIDGE RAILROAD COMPANY. PRACTICE IN SUPREME COURT.-ABSENCE OF APPEAL BOND. 1. Where the appeal has been allowed, but no appeal bond given either for the costs or a supersedeas, the appeal will not be dismissed if the appellant file a sufficient bond within a reasonable time to be fixed by this court. 2. Such bond must be approved by one of the judges authorized to allow the appeal. APPEAL from the circuit court for the northern district of Georgia. Mr. Phillips, for appellee, moved to dismiss the appeal because no bond had been given when the appeal was taken or since. Mr. Johnson, for appellants, offered to give a sufficient bond for costs, and opposed the motion to dismiss. Teese v. Huntingdon. After argument by these two counsel, Mr. Justice NELSON delivered the opinion of the court. [ This is a motion to dismiss the appeal, on the part of the appellee, upon the ground that no appeal bond was given * * 2] at the time of granting the appeal, as required by the statute, either as a security for costs or supersedeas of execution. 1 Stat. at Large, pages 84, 85, secs. 22, 23, p. 404. It is admitted that no bond was given, but the counsel resisting the motion proposes to give one for the costs, and thus prevent the dismissal, if consistent with the practice of the court. The practice has been allowed in several cases, as will be seen by reference to 10 Wh. R. 311, 16 How. 148, and 9 Wh. 555. In the last case, time was granted within which to give the bond, or the case be dismissed. The bond may be taken and approved before any judge or justice authorized to allow the appeal or writ of error. Let the appellant have sixty days to give the bond, and file it with the clerk, upon complying with which order the motion be dismissed; otherwise, granted. LEWIS TEESE and LEWIS TEESE, JR., Plaintiffs in Error, v. C. P. HUNTINGDON and MARK HOPKINS. 23 H. 2. PATENT LAW-NOTICE OF PRIOR INVENTION-EVIDENCE. 1. Where the notice of proof of prior use of invention is sufficient, it is not essential to the introduction of the evidence on the trial that it should be served and filed in court with an order of the court. 2. Depositions taken before such notice may be used on the trial in the same manner as if the witness were introduced in person. 3. For the purpose of impeaching a witness, the general question, "What is his reputation for moral character?" was properly overruled by the court below. 4. It was also held to be within the discretion of the court to refuse to allow a witness to testify as to the other witness's reputation for truth and veracity five years previously, when he stated he knew nothing of his character since that time. WRIT of error to the circuit court for the northern district of California. The case is fully stated in the opinion. Mr. Phillips, for plaintiffs in error. Mr. Gifford, for defendants. [ * 6 ] *Mr. Justice CLIFFORD delivered the opinion of the court. This is a writ of error to the circuit court of the United Teese v. Huntingdon. * 7 ] States for the northern district of California. According to the transcript, the declaration in this case was filed on the eighteenth day of March, 1856. It was an action of trespass on the case for an alleged infringement of certain letters patent purporting to have been duly issued to the plaintiffs for a new and useful improvement in a certain machine or implement called a sluice-fork, used for the purpose of removing stones from sluices and sluiceboxes in washing gold. As the foundation of the suit, the plaintiffs in their declaration set up the letters patent, alleging that they were the original and first* inventors of the [ improvement therein described, and charged that the defendants, on the second day of July, 1855, and on divers other days and times between that day and the day of the commencement of the suit, unlawfully and without license vended and sold a large number of the improved forks made in imitation of their invention. To this charge the defendants pleaded the general issue, and in addition thereto, set up in their answer to the declaration two other grounds of defense. In the first place they denied that the plaintiffs were the original and first inventors of the improvement described in the letters patent, averring that the supposed improvement was known and used by divers other persons in the United States long before the pretended invention of the plaintiffs. They also alleged that the improvement claimed by the plaintiffs, as their invention, was not the proper subject of a patent within the true intent and meaning of the patent law of the United States. By the fifteenth section of the patent act of the fourth of July, 1836, the defendant, in actions claiming damages for making, using, or selling, the thing patented, is permitted to plead the general issue, and for certain defenses, therein specified, to give that act and any special matter in evidence which is pertinent to the issue, and of which notice in writing may have been given to the plaintiff or his attorney thirty days before the trial. Within that provision, and subject to that condition, he may, under the general issue, give any special matter in evidence tending to prove that the patentee was not the original and first inventor or discoverer of the thing patented, or a substantial and material part thereof claimed as new, or that it had been described in some public work anterior to the supposed discovery by the patentee, or had been in public use, or on sale, with the consent and allowance of the patentee, before his application for a patent. But whenever the defendant relies in his defense on the fact of a previous invention or knowledge or use of the thing patented, he is required to "state in his notice of special matter the names and places of Teese v. Huntingdon. residence of those whom he intends to prove to have possessed a prior knowledge of the thing, and where the same had been used." * 8 ] [ *Two written notices were accordingly given by the defendants of special matter to be offered in evidence by them at the trial, in support of the first ground of defense set up in the answer to the declaration. One was dated on the twentyeighth day of August, 1856, and the other on the nineteenth day of September of the succeeding year, but they were both duly served and filed in court more than thirty days before the trial. Upon this state of the pleadings the parties on the twentieth day of October, 1857, went to trial, and the jury, under the rulings and instructions of the presiding justice, returned their verdict for the defendants. After the plaintiffs had introduced evidence tending to prove the alleged infringement of their patent, they claimed that counsel fees were recoverable as damages in this action, and offered proof accordingly, in order to show what would be a reasonable charge in that behalf. That evidence was objected to by the defendants, upon the ground that counsel fees were not recoverable as damages in actions of that description, and the court sustained the objection, and excluded the evidence. To which ruling the plaintiffs excepted. Little or no reliance was placed upon this exception by the counsel of the plaintiffs, and in view of the circumstances one or two remarks upon the subject will be sufficient. Suppose it could be admitted that counsel fees constituted a proper element for the consideration of the jury, in the estimation of damages in cases of this description; still the error of the court in excluding the evidence would furnish no ground to reverse the judgment, for the reason that the verdict was for the defendants. For all purposes connected with this investigation, it must be assumed, under the finding of the jury, that the plaintiffs were not entitled to any damages whatever; and if not, then the evidence excluded by the ruling of the court was entirely immaterial. But the evidence was properly rejected on the ground assumed by the presiding justice. Counsel fees are not a proper element for the consideration of the jury in the estimation of damages in actions for the infringement of a patent right. That point has been directly [9]* ruled by this court, and is no longer an open question. Jurors are required to find the actual damages incurred by the plaintiff at the time his suit was brought; and, if in the opinion of the court, the defendant has not acted in good faith, or has caused unneccessary expense and injury to the plaintiff, the |