incompatible with the restriction under the more genelltl word "print," which both statutes continue in force as before. O. S. v. Sixty-five Terra Cotta Vases, etc., 10 FED. REP. 880. The preliminary injunction should therefore be denied.
GILLETTE and others
BATE REFRIGERATING Co.
February 21, 1882.)
(Oircuit Oourt, D. New Jersey.
To entitle parties to a rehearing, after an interlocutory decree, on the ground of newly-discovered evidence, they must show to the satisfaction of the court that they due and reasonable diligence before the hearing to procure the evidence now sought to be introduced, and the facts and circumstances constituting such diligence must be specifically stated; a general averment is not sufficient. They must show, also, that the new evidence is material. The proper practice suggested·
.On Petition for Rehearing. John R. Bennett, (with whom was Geo. Harding,) for defendants. Dickerson t:t Dickerson, for complainant. NIXON, D. J. On the fourteenth of November, 1881, an interlocutory decree was entered against the deferdants in the above case in favor of the complainant corporation, and a reference made to a master to take an account and report the gains and profits which had a.ccrued to the defendants, and to ascl3rtain the damages which the complainant had sustained by reason of the infringement of their letters patent. An application is now made for lelj.ve to vacate the decree, to amend the. answer, to put in the newly-discovered eviqence set forth in the accompanying affidavits, and for a rehearing of the cause. The complainant has demurred to the applicat,ion, and alleges as grounds of the demurrer: ,.
(1) That the alleged anticipatory uses are immateriai to the case; .and-' (2) That if material the facts as to them were easily accessible to the, def(lDdants, and coulq h.ave been proved prior to the former hearing·
. When -the case came on for argument the solicitor for the petitioners produced in court a stipulation signed by the solicitor for the com:plainant, conceding- _
(I) That the evidence which the defendants now' seek to Introduce was unknown to :them' until after the entering of·the decree, in the cause. and was first ltnown to them on December 9, 1881, when disclosed in opposition to a
(HLLETTE V. BATE REFRIGERA.TING 00.
motion for injunction in the case of. these complainants against Toffey and , others, before his honor; Judge Blatchford. (2) That the defendants expended a considerable sum of money in preparing their defence and obtaining such evidence as they produced at the hearing, and that they thAn produced all the information or evidence, touching the subject-matter of the suit, of which they then had no knowledge. (3) 'rhat the new evidence is not cumulative or corroborative of any of the . original proof of this cause. (4) That the defendants, and each of them, would swear, viz.: "that the omission on their part to produce at the hearing the new evidence now sought to be introduced was not due to any neglect on their part, they having made diligent effort, extensive and thorough investigation and research, to obtain all evidence relating to or in any way bearing upon the subject--matterinvolved in this cause; that they have been diligent in producing this evidl!nce since it has come to their knowledge, and in making this application; and that they believe this new evidence to be material, and that had it been befo,re the court on the former hearing it would have changed the cOllclusiop qf t!:!e court, and resulted in a decree dismissing the bill of complaint,"-which ments are to be considered with the same force and effect as thOughswoblto in the form of an affidavit by the defendants,1tnd' each of them.: I
It was further stipulated that the respective parties might, on this motion, copies of any a.ffidavits which they deemed material, notwithstanding the fact that such affidavits may have been made or entitled in some other case, provided the originals of such affillavits be duly filed in the proper court in which they are entitled. .This application is a proceeding now weU recogni2ied in the practice of courts of equity, and if allowed must be accompanied by such.proofs and statement of facts as are deemed necessary to authorize ,the party to file a bill of review, or the, court to grant leave to file a sup, plemental bill in the nature of a bill of review. The case of Baker v. Whiting, 1 Story, 218,. came upon a petition presented bydhe defendants, after:aninterlocutory decree, asking for a rehearing, and for leave to introduoe newly-discovered evidence in the cause. ' Judge Story,afterv,ery investigation, edents for· such a practice in the .courts of equity both .of. Englimd and the United States; but held where a rehearing was sought on the ground of new evidence, after an interlocutory decree, the court might grant the :reh>earing upon the filmg of a supplemental bill, if: the evidence was of: such a nature and character as to entitle the party io. relie,f upon a bill of review, after the enrollment of a final decree, Ol'.on a supplemental bill in the nature of a bill of review wherethel'ehad been no not otherwise.
. }") 1,: .
': ';,FEDlDRUI BEPORTl1lB.
A Jike petition being subsequently filed in Jenkins v. Eldredge, 3 Story, 299, the same learned judge, in considering the case, said: "The present application, if maintainable at all, should properly, in its prayer, be for leave to file a supplemental bill to bring forward the new evidence, and for a rehearing of the cause at the time when the supplemental bill should also be ready for hearing." The subject is thus generally alluded to in order to suggest the proper mode of proceeding in such cases; but there will be no difficulty in adj listing this application to meet the requirements of orderly practice, if it ill fqund upon inquiry that the defendants have entitled themselves to open the case and to submit the newly.discovered evidence. Whether they are entitled depends upon the answer to two questions: (1) liave they shown that they exercised due and reasonable diligence before the' hearing in procuring the evidence now sought to be introdnced? .(2) Is the new evidence in determining the issues raised by ' , 1. In regard to the first question the burden is upon the ants to show that the omission to produce the testimony was not due to any,negligence on their part, arid that they were diligent in their efforts to obtain it; ,Reeves v.Keystone Bridge Co., 9 O. G. 885. No relief 'of this nature can be ,granted where the party seeking it could; by proper diligence andinquii'y, before the decree have obtained knowledge of the existence of the new evidence. Rubber Co. v. Phelps, 8 Blatchf. 87; Ruggles v; Eddy, 11 Blatchf.524; Pagev. Telegraph Co. 2 FED. REP. 830. Nothing has been laid before the court exhibiting any diligence or care on the pan of the applicants in procuring the testimony before the hearing of the cause, and no faotshave been suggested from which I may properly infer its do not overlook the fact in the stipulation filed, the complainant has admitted that the defendants would swear that "the omission to produce the new evidence was not due to any neglect on their part, and that they made diligent effort, and extensive and thorough investigation and research, to obtain all evidence relating to or in any way bearing upon the subject-matter involved in the cause," But suppose madeeuchan affidavit., what then? The statement is merely conclusions of law that interested parties have drawn from facts and circumstances which they do. not. disclose; and which, if known, might posBiblylead the court to conclusions. Courts, always ela'im the right, to hear tile facts and oir· cumstances and draw their own inferences.
'2. 'Looking at· the construction given to theieompl8iinarit's patent; (see 9 FED. REP. 387,) there is reason to deem the new evidence, if true, to be material.. But I have not looked. into the second inquiry with any care, as I am clearly of the opinion that the defendants have not made sufficient proof of diligence under the first head to entitle them to have the case reopened. The application is refused.
HOE and another
PATENTS FOB INvENTIONS TION OF.
KAHLER.March 27, 1882.)
(Circuit Oourt,8. D. Ne1JJ York.
IMPROVEMENT IN PRINTING PRESSES-CoNSTRUC-
The third claim of letters patent No. 181;217, granted Richard M. Hoe and Stephen D. Tucker, September 10, 1872, for" separating two following sheets of paper, in their travel to the fiy frame, into two different paths, by an arthe. travel of one sheet suitably rangement of tapes and switches,and longer than the other, so that when they meet again they will issue one upon the other to the fiy," held to be valid, and to cover an arrangement of tapes and which attains such result either by the dIvergence of such sheets into two paths, each different from the original line of travel, by means of double-acting switches, or by the continuing of one sheet ill its original path and the diverting of the other into a separate path by single-acting switches.
SAME-OATH TO CAVEAT-JOINT INVENTION-ADVICE OF COUNSEL:
The filing of a caveat, with an affidavit byasingle individual that ,he· telieves himself to be the first original inventor, does not preclude the'subkequent procurement of a patent for the improvement described in the caveat ;asthejoint invention of himself and another, where such original affidavit was made 'under .advice of counsel and a miscomprehension of. the facts.
In Equity. Final hearing·. M. B. Philipp and B. F. Thurston, for plaintiffs. B. F. Lee and W. D. Shipman, for defendant. BLATCHFORD, C. J. This suit is ·brought on letters patent No·.13i,217, granted to 'Richard M. Hoe and Stephen D. Tucker, September 10, 1872" for an "improvement in printing presses." is alleged of only claims 3 and 40f the six claims, and, :only those need 1>e rl;lferredto which cOllcemclaill1s 3 parts of the and 4. The specification says that the invention "relates to printing machines, and more particularly to that class commonly known as perfecting presses, in which the sheets of paper are printEld on both sides in passingo'nce through the machine.· . It consists in certain
.Reported by 8. Nelson White, Esq., of the New York bar