The defendant was not entitled to a ruling upon the plaintiff’s case, reserving to himself the right to put in his own case afterwards. No exception lies to this refusal.
The other exceptions all relate to the exclusion of testimony. For a proper determination of these, it is necessary to have in view the precise position of the questions upon which the rejected testimony would bear. The case was tried upon two aspects or theories in regard to the consideration for which the notes in suit were given. The defendant’s ground was that the notes were given for the extension of a certain patent right, which was proposed to be obtained for his benefit, but which failed. To show the failure, he was allowed to put in, from the *170records of the patent office, a copy of the jeeision of the commissioner, refusing the extension. This was sufficient for his purpose, in this particular; especially when it was admitted by the plaintiff that the patent had never been extended. Upon this aspect of the case, the decision or opinion of the examiner, which the defendant offered to put in, as a part of the same proceedings, but which the court excluded, was entirely immaterial.
But it having been conceded by the plaintiff that if the notes were given for the extension of the patent, he could not recover, and the court having so instructed the jury, the verdict must be taken as establishing the plaintiff’s position that the notes were based, for their consideration, upon the bond of 1851, and not upon the proposed extension of the patent in 1857. And there are no exceptions to the evidence nor to the instructions which bear upon the finding of the jury in this respect.
The only question at issue, therefore, to which the exceptions can apply, is that raised by the claim of the defendant that the bond was itself void by reason of the false and fraudulent representations of the plaintiff, that the patent was a valid patent, &e.
The report of the examiner and the decision of the commissioner of patents have no legal retroactive operation. Their purpose and effect are to determine the question of an extension of the patent; and they can have no further operation. Although the invalidity of the original patent for want of novelty may be assigned as a reason for refusing an extension, yet such an adjudication does not invalidate the patent, nor vacate the original adjudication upon which it was at first issued.
Neither is it such an adjudication of the same question between the same parties as to make it competent evidence, in a trial at law, involving the validity of the original patent. The issue before the commissioner is not upon the validity of the patent, but upon the claims of the patentee for a further reward by means of an extension. The report of the examiner against the claim of novelty of the device, although pertinent to the question does not make his conclusion, that the original patent *171Was invalid, an adjudication to that effect. His conclusion is in its nature subordinate and incidental, rather than of the substance of the adjudication which is made by the commissioner. The decision of the commissioner may be made contrary to its result, and is not necessarily based upon it when in accordance with it. The validity or invalidity of the patent, therefore, was not necessarily involved in the adjudication refusing its extension. For the purposes for which that adjudication was made, it is undoubtedly evidence, if not conclusive. But we are of opinion that neither the report of the examiner nor the decision of the commissioner, upon the question of an extension of the patent in 1857, is competent evidence to establish the invalidity of the original patent in 1849, when the assignment was made upon which the bond of 1851 was based. *
The report of the examiner was therefore properly excluded. The admission of the decision of the commissioner, for another purpose, gave the defendant no right to insist that this report should also go in, as a part of the record, to be used for a purpose for which neither would be competent.
It was clearly incompetent for the defendant to show that the South Carolina claim was fictitious, by declarations of the parties there, when refusing to pay. If an assertion of defences could establish the invalidity of a demand, debtors might all go free.
The question proposed to the defendant, as an expert, sought to establish an historical fact, under the guise of a scientific opinion. It was properly excluded.
The question proposed to the plaintiff, whether he had made inquiries and ascertained that the statement, that the patent had been tested in a court of law, at Baltimore, was untrue, seems to be entirely immaterial. It would, at most, only show that, since making the representation, he had come to the knowledge of its incorrectness; which would tend to disprove the defendant’s own claim that the representations were false and fraudulent when made. •
But further than this; it does not appear that the question whether it had been tested in a court of law at Baltimore was *172of any importance. So far as is shown, the defendant, by his assignment from the plaintiff, did in fact enjoy the advantages of the patent, duly issued and apparently valid, during the whole remaining period of its term, without infringement or interference. There is nothing in the evidence reported, even including that which was rejected, which tends to show that the plaintiff was guilty of fraud in the sale and assignment of the patent right; or which ought to discharge the defendant from payment of notes given, as the jury have found, for his debt arising fiom that assignment, and in settlement of a balance due on his bond, which could be impeached only on the ground of fraud. Exceptions overruled.