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
which he decided, except that relating to Syz, Irminger & Co., and as to that the exception was not filed within two days after the filing of the referee's report. If any of the said amended exceptions to the refel'ee's report, other than that relating to Syz, Irminger & Co., are claimed to have been properly filed, aside from any authority therefor under said order of reference, it is plain that some of them relate to objections which,in order to be available, should have been taken before verdict, and therefore are improperly filed, because it is not shown that the objections and exceptions were taken before verdict, and that the rest of them could only be raised by an exception to the decision of the court, made February 11, 1861, and it does not appear that any such exception was ever taken, and it is too late llOW to take it. I am also of opinion that the stipulation entered into between the treasury department and the attorneys for the plaintiffs in August, 1874, applies to this case in its present status. No motion appears to be made in regard to the "exception to referee's decision."
RWHARDSON v. CROFT and another.
(C'i'i"lJ'Uit Court, 8. D. Ne'll) YQ1'k.
INJUNCTION-WHEN NOT DISSOLVED.
November 29, ISBUl
If, upon the state of facts appearing on a consideration of all the affidavits it is shown on a finalhearin!/; that the plaintiff's patent would not be defeated, the motion to amend the answer and to dissolve the injunction will be denied.
George Gifford, for complainant. George Bliss and A. Bell Maloomson, Jr., for BLATOHFORD, C. J. Waiving the question as to whether the defendants have shown the diligence which is required, it does not appear satisfactorily that the matters now sought to be set up are relevant or material. If the state of facts now appearing on a consideration of all the affidavits were shown on a final hearing, the plaintiff's patent would not be defeated. The Tyrrel device for reflecting figures attached to slides running in grooves in the table does not suggest or meet the plaintiff's invention. Mr. Boyd Elliot's affidavit leaves it not at all clear that the Castner mirrors were adjustably connected to each other, or that they were publicly used. There is nothing to show that the two book references have any relevancy. The motion to amend the answer and the motion to dissolve the injunction are denied.