RAILWAY REGISTER lI1ANUIf'G CO. V. NORTH HUDSON CO. R. CO.
more and more rely on the diagonal red band as its distinctive mark, and would be likely to accept the respondent's beer with his diagonal. red label on it as supplying what he was in the habit of getting. There is nothing in the differences in the labels calculated to counteract this, and I think it is a strong case of a similarity likely to deceive. The respondent's statements and explanations of how he came to hit upon this label for his own use are not satisfactory. It appears that it was suggested to him by a bottler in Waehington, named Christian Abner, who was a rival of a bottler of complainant's beer, and using complainant's label in that same city, named Edward Abner. Nothing is shown by the affidavits to repel the suspicion which naturally arises that the subsequent adoption of such a very similar label by one of the two rivals in the same city could not be accidental, but mnst have been for the pnrpose of confusion. On the case, as shown by the affidavits, I think the complainant is entitled to the injunction as prayed.
RULWA:Y REGISTER MANUF'G
Co. V. NORTH others. 1
(Circuit Court, D. New Jersey. January 13,1886.,
EQUITY PRACTICE-ApPI.ICATION FOR REHEARING-DISCRETION.
An application for a reargument is addressed to the discretion of the court, and the exercise of such discretion is not willful, but is governed by certain well-established principles.
SAME-GROUNDS FOR REHEARING.
The grounds on which courts ordinarily grant rehearings are (1) upon allegation that any question decisive of the case, and duly submitted by counsel, has been overlooked by the court; and (2) that the decision is in conflict with an express statute, or with a controlling decision, either overlooked by the court, or to which attention was not drawn, through neglect or inadvertence of counsel. The allegation that one defense was not fully presented at the original hearing is no ground for rehearing. .
SAME-INSUFFICIENT GROUND FOR REHEARING.
PATENTS FOR INVENTIONS-COMBINATION OF OLD PARTS, WHEN PATENTABLE.
A combination of old elements is patentable, where a new and useful result is produced by their joint action, or an old result in a cheaper or otherwise more advantageous manner.
On Application for Reargument.
Frost If Ooe, for application. Dickerson J; Dickerson, contrll.
NIXON, J. This is an application for the reargument of the above case, upon the same testimony, and under the same circumstances,
by Cha.rles C. Linthicum, Esq., of the Chicago bar.
under which it has been before arglled and decided. The only ground forth in the petition for the court to open the case, and grant the motion, is that the defense, that "the devices claimed in the complainant's patent did not constitute a patentable invention," was not fully presented on the final hearing. The application for a reargument, it is true, is addressed to the discretion of the court. The exercise of such discretion, however, is not willful, but is governed and determined by certain well-established principles. In Giant Powder 00. v. Oalifornia 00., 5 Fed. Rep. 197, Mr. Justice FIELD tersely says that a reargument is never granted to allow a rehash of old arguments, and that the proper remedy for errors of the court on points argued in the first hearing is to be sought by appeal when the decree is one which can be reviewed by an appellate tribunal. The present case is one of such character. The grounds on which courts ordinarily listen to such applications 1I.re stated by the court of appeals of New York in Marine Nat. Bank v. Oity Nat. Bank, 59 N. Y. 73. They are (1) upon all allegations that any question decisive of the case, and duly submitted by counsel, has been overlooked by the court; or (2) that the decision is in conflict with an express statute, or with a controlling decision, either overlooked by the court, or to which attention was not drawn, through the neglect or inadvertence of counsel. Neither of these reasons is shown or alleged to have existed. The counsel for the defendant simply state that one of their defenses was not fully presented. If not, why not? No limitation or constraint was imposed in the argument. It happens that the very ablest counsel are often dissatisfied with their presentation of the most important causes, but that has never been regarded as a satisfactory reason for the court to allow them another opportunity. The solicitors of the defendants, who unite in an affidavit to secure the rehearing, say that "it can be readily shown, on a reargument, that, in view of the state of the art, all the elements of the alleged combinations of the three claims in suit are old, and that there was no new result obtained by their alleged combination; but that the same advantage, alleged by complainant to be brought about by their combination, were old and well known in fare-regi"sters." This does not quite meet the case. The latest decision of the supreme court on this subject, which has come under my observation, was made in Stephenson v. Railroad 00., 114 U. S. 149; S. C. 5 Sup. Ct. TIep. 777. In the opinion which I filed in this case I quoted what the supreme court there said was the rule in regard to combination claims, where the elements were old, to-wit, that such combinations were patentable, where a new and useful result is produced by their joint action, or an old result in a cheaper or otherwise more advantageous manner. Counsel for the defendants were probably misled by the hasty and meager comments which I made upon the quotation, and inferred that I meant to assert that only a new and useful result
would sustain such a patent. The opinion further states, and I ought to have added, that an old result may be sufficient, when it is produced by the combination in a cheaper or otherwise more advantageous manner. I think the complainant's mechanism does this, and hence a reargument on the queBtion of novelty would subserve no useful purpose. application is therefore denied.
Ross v. HELLYER and another. 1
(Oircuit Court, 8. D. I01JJa, O.
HOMESTEAD-ABANDONMEKT-REMOVING INTO AND VOTING IN ANOTHER COUNTY.
Removal of the owner of a homestead to another county, and repeatedly voting at elections held in such county, is sufficient evidence to establish an abandonment of the homestead.
In Equity. This is a suit in equity to subject the homestead of the defendants, at Des Moines, Iowa, to the payment of a judgment recovered by the assignor of the complainant in this court, May 22,1879, for $4,438.93. The homestead in question was purchased and paid for partly with the proceeds of a former homestead .owned by the defendant Hellyer, at Nevada, Story county, Iowa, when the debt on which the judgment was recovered was contracted. It is claimed by the complainant-First, that, notwithstanding Hellyer continued to be the owner of the Nevada homestead at that time, it was for the time being abandoned as such, as against this complainant, who, during the abandonment, became his surety in an indemnifying bond. P. F. Bartle and S. F. Balliet, for complainant. Gatch, Connor <i Weaver, for defendants. LOVE, J. The evidence in this case is convincing to my mind that Robert Hellyer, the defendant, changed his residence from Nevada to Boone without any definite intention of returning to the former place. That he made an actual change of abode from the one place to the other there is no doubt. With what intent or purpose did hemake the change? Was it his purpose in going to Boone to make that place his domicile?' If it was not, then why did he commit the offense of voting at elections in Boone? The reasoning of counsel for the defendant on this fact is, to my mind, entirely unsatisfactory. Counsel say: "First· .As to the conceded fact of Hellyer haVing voted while liVing at Boone, it signified one of three thtngs: either that he was a citizen by actual change of domicile, and therefore had the right to vote, or that he errOlliOl.
Reported by Robertson Howard, Esq., of the St. Paul bar.