SUTTER and others.·
(Oircuit Oourt, N. D. IlliMi,.
PRACTlCE-RJIlHEARING-AFlI'IRMANCE OF FORMER DECREE,
Where, on & rehearing, granted in order that newly-discovered proof eonld be brought in and considered, the evidence failed to show that 1 he in use prior to plaintiffs'invention was an anticipatioll llierl:OI, lu,'wer l1ecree was affirmed.
In Equity. On rehearing.
Munday, Evart, cJ: Adcock, for complainants. BLODGETT, D. J. The distinctive feature of complainants' device for resweating tobacco is the water tank in the bottom of his outer chamber, so that by keeping this water at the proper temperature the atmosphere of the outer chamber can be kept warm and humid, whereby the process of resweating will be induced and carried on to whatever extent shall be deemed desirable. Since the former hearing defendants claim to have discovered the use of other devices prior to Robinson's invention, which they insist so far anticipate the Robinson device as to make it void for want of novelty; and a rehearing was granted defendants in order that this newly-discovered proof could be brought in and considered. The first is an apparatus used by John Watt for resweating tobacco j the second, twoswea.ting rooms or boxes used by Louis Specht in the tobacco factory of August Beck, of this city j and third, the Huse patent of July, 1865. No model of the Watt sweat room is shown, but from the description given of it in the testimony it is evident that it was merely a close vault heated by coils of steam pipe, and into which live steam was discharged in greater or less quantities. It did not have the water tank shown in the Robinson device. nor anything equivalent io it, but had specific provision for drawing off the water formed by condensation of the steam. The Specht device was also, as I conclude from the model, only a room or box heated with coils of steam pipe, and one or two of the lower pipes perforated so as to permit the escape of the steam These perforations were on the under side of the pipes, so that the steam was blown downward onto the floor of the room, where it came in contact with, perhaps, a small quantity of water which had collected in the troughs, so that this discharged steam, as it rose and diffused itself through the room, was to some extent satura.ted with * Reversed. See 7 Sup. Ct. Rep. :371S.
the water which it had taken up, or was 80 near the 60nuensing point as to be wet steam. This Specht apparatus has been altered so , often that I find it almost impossible to determine from the proof just how it was constructed and operated prior to the date of Robinson's patent. But I am satisfied that a tank of water or ·any large body of water was not deemed an essential part of the apparatus. The construction of first one trough and afterwards three troughs satisfies me that the main purpose of these troughs was not to hold a mass or body of water as an essential element of the mechanism, of but to catch and carry off the water formed by the the steam. So that, while the Specht sweat-box may, in its practical operation,have approximated somewhat more closely to the Robinson invention than any others which have been shown in' the proof, it did 'not,in my estimation, anticipate"Robinson's invention. , As for, the Ruse patent of 1865, it was only a box heated with steam coils, in which the tobacco was to be placed, and heated by the radiation of, heat from the pipes and theinwoduction of live steam. The former decree in the case is affirmed.
Byz and others
REDFIELD and others. '
(Oircuit Oourt, 8. D. N6'IJJ York. August 16,1881q·
PltAOTICE-'-EXCEPTIONS TO REFEREE'S REPORT.
Where amended exceptions to the report of the referee are not filed within the time prescribed by the statute they will be overruled on motion.
BLATCHFORD, C.;T. So much of the plaintiffs', motion herein ,as moves "to overrule and exclude all defendants' so-called amended exceptions to the referee's report, originally filed herein on September 11, 1880," must be granted. The order of reference of March 7, 1877, provides that "either party may, on the hearing, raise objections, and said referee shall decide thereon, and either may file exceptions to such decision of the referee within two days after the filing of the referee's report. .. It does not provide for any exceptions to the report of the referee. If the exceptions to the report can be treated as if they were filed as exceptions to decisions of the referee on the hearing, there is no matter embraced in said amended exceptions to .the referee's report which relates to anything as to which the defendants raised objections before the referee oJ). the hearing, on