cure articles from the former to be used at the Buffalo hospital. This is very far from a denial that the particular articles in dispute could be purchased in the open market, and especially so in view of Mr. Hughes's further testimony that the complainant sells the Stieringer safety-catches in the general market "subject to existing contracts." He is asked:

Is it possible that, if the patent had been installed, any articles which might come within the description of Patent No. 281,576 are those manufactured by the General Electric Company?-Ans. I am not prepared to say that it is impossible.

There is no evidence that a contract was made or that any plant was installed at the Buffalo hospital. In fact, the entire case against the defendant rests upon the aforesaid statement of Mr. Hughes that the contract—

was awarded to the Western Electric Company, through its agent Mr. Kaelber.

Omit the last five words and there is absolutely nothing connecting Kaelber with the transaction. If this loose statement is sufficient to establish agency at all, what was the character of the agency? Was he a general agent or was he a special agent only to represent the Western Company before the hospital board? For aught that appears he may have represented the Western Company as Mr. Crowell represented the complainant, or he may have been simply an attorney-at-law to hand in the company's bid and receive the award in case the bid was accepted. It is manifest that there can be no well-grounded apprehension of infringement from such an agent. A quia timet action will not lie unless there is something to fear.

There is not a particle of evidence to show that Kaelber ever infringed, or threatened or agreed to infringe, or assisted any one else to infringe, or that he was in a position where he could do or would be likely to do any of these things.

It is impossible to inculpate this defendant except by a series of guesses which equity will not tolerate. Kaelber has said nothing and done nothing blamable. When the hospital board concluded to accept the Western Company's bid, they communicated the fact to him. This was all. If upon such proof a party can be held as a wrong-doer, subject to an injunction and an accounting, and compelled to pay a bill of costs, few will be safe.

In any view the real defendant is the Western Electric Company. The real injury, if any, has been inflicted by it. Viewed in its most favorable light for the complainant, Kaelber's action placed the Western Company in a position where it might infringe. The moment the contract was made, assuming that it compelled infringement, there was reason to fear that company, but not the defendant. He has made no threat. An injunction against him would not have stopped the work. To make him pay for profits which he has never received would be an injustice.

There is

But in order to test the question still further let it be assumed that the Western Electric Company and not Kaelber is the defendant. How then does the case stand? There is an allegation of infringement on information and belief and a positive denial under oath. no proof of actual infringement. There is proof that a contract was awarded the company which if carried out pursuant to the specifications may involve infringement and may not. There is, as before stated, no proof that a contract was actually entered into or a plant installed. There is proof that the infringing devices were sold in the open market by the complainant or its licensees. Non constat, the Western Company may have had a quantity of these on hand when it made the bid. Remembering that the burden of proving infringement is upon the complainant and that even in a quia timet suit there must be wellgrounded proof of an apprehended intention to violate the patent-right, it is thought that there is a failure to prove a case against the defendant. It would seem that the complainant may have overlooked the fact that Kaelber is the sole defendant, for in the brief it is argued that enough has been shown to indicate that there was a fair probability that the safety-catches of the patent would be installed at Buffalo, The brief proceeds:

If the defendant did not actually install such apparatus as is described and illus trated in the patent in suit, the burden was upon it to have proved it.

There can be no pretense upon this proof that the burden was upon Kaelber to prove this, for the reason that the hypothesis upon which the proposition is founded fails wholly as to him.

The Western Electric Company is not a party. It evidently declined the invitation of the bill to "subject itself to come within the jurisdic tion of this court."

As to the only defendant who is before the court, the complainant's difficulty is not with the law, but with the facts. The rule of law is plain and simple; but the proof does not bring the defendant within the rule. Too much is left to uncertainty and speculation. Should the court decree for the complainant, it could never rid itself of the painful doubt that it may have done an injustice to an absolutely blameless man.

The bill is dismissed.

U. S. Circuit Court-Western District of Pennsylvania.]

BENNETT & SHEPHERD . SCHOOLEY.

Decided November 18, 1896.

77 O. G.. 1432.

1. SUPPLEMENTAL BILL IN THE NATURE OF A BILL OF REVIEW-NEW EVIDENCEDILIGENCE.

A party asking relief by bill of review must satisfy the court that the evidence upon which he relies could not, with the exercise of due diligence, have been secured prior to the hearing.

2. PROOF OF CARE IN SECURING EVIDENCE.

Proof that respondent wrote to a firm of attorneys instructing them to send him copies of all patents relating to a certain subject does not amount to proof that such attorneys made a search to discover all such patents, though they sent a number, and presumption in favor of such search having been made is negatived by the discovery of the patents now urged in the place where prudence would have suggested a search.

SUR APPLICATION for leave to file a supplemental bill in the nature of a bill of review.

Mr. A. S. Pattison and Mr. J. M. Nesbit for the complainants.
Messrs. Strawbridge & Taylor for the respondent.

BUFFINGTON, J.:

This is an application by the respondent for leave to file a supplemental bill in the nature of a bill of review. There has been a hearing upon proofs, opinion filed, decree entered adjudging complainants' patent valid and that respondent had infringed certain claims, and a reference to a special master for accounting. The alleged ground for the present application is after-discovered evidence—namely, United States Patent for Railway-Torpedoes No. 273,441, granted March 6, 1883, to J. H. Bevington, and English Patent No. 2,908, granted in 1867 to Marmaduke Wilkin and John W. Clark, which are alleged to disclose the invention shown by Beckwith in the patent in suit.

The principle is well settled that to warrant the relief here sought the party asking it must, inter alia, satisfy the court that he could not, with the exercise of due and reasonable diligence and care, have obtained such evidence prior to the hearing of the cause. (Hitchcock v. Tremaine, Fed. Cas. No. 6,540; Reeres v. The Keystone Bridge Company, Fed. Cas. No. 11,661; Baker v. Whiting, Fed. Cas. No. 786; Page v. Holmes Co., 2 Fed. Rep., 333.)

Tested by this standard we are clearly of opinion the petitioner has not shown himself entitled to the relief sought. Patent No. 298,935, to J. H. Bevington, was by him offered in evidence and examined and considered by his expert witness. It expressly referred to the Bevington patent now sought to be shown as after-discovered evidence in these words:

The object of this invention is to improve certain devices on which I have already obtained Letters Patent No. 273,441, dated March 6, 1883, and to which reference is had in this specification.

With such notice of the existence of the prior patent then and there brought home to him he cannot urge it as after-discovered evidence.

As to the English patent, the respondent has not met the burden the law casts on him. The only proof is that after couference with his then local counsel he wrote a firm of patent solicitors in Washington for copies of all patents prior in date to the patent in suit relating to the subject of torpedoes; that they sent him a number of patents, but the two patents now complained of were not among them. There is no

proof as to the nature of search made by the firm to which he sent, or, indeed, that any was made. We cannot presume such search was made. Indeed, if presumptions were to avail, the presumption is rather against the theory of a thorough search. The patents sent did not include the Bevington patent now complained of, and which was covered by the respondent's request. Then, too, respondent's affida vits show that on search by his Philadelphia counsel, made in preparation for the present application, the English patent was found in the place in the Patent Office where prudence suggested a search be made. In the absence of all affirmative proof that such a search was made by the parties to whom respondent first applied we think we are justified in assuming that if such search had been made when the bill was filed it would have resulted as the present one did-viz., in finding the English patent.

Respondent's application will be disharged at his cost.

[Court of Appeals of the District of Columbia.]

BRYANT . SEYMOUR, COMMISSIONER OF PATENTS.

Decided November 17, 1896.

77 O. G., 1599.

1. BRYANT-SHOE-COMMISSIONER'S DECISION AFFIRMED.

Upon a consideration of the merits of the case, Held that there was no sufficient reason to disturb the decision of the Commissioner of Patents.

2. APPEAL TO THE COURT OF APPEALS OF THE DISTRICT OF COLUMBIA.

Appeal from the decision of the Commissioner of Patents, nearly a year after such decision, is brought in violation of Rule 20 of the rules of this court, and should not be entertained, especially when no excuse for the delay is urged.

3. RULES OF THE COURT-TIME OF APPEAL-BINDING POWER OF SUCH RULE. While some rules of court may be modified in special cases, they are in general as binding upon the court as upon parties and counsel, and rigid adherence is required to time-rules which are intended to have the effect of statutes.

IN THE MATTER of the application of George Bryant for reissue of Letters Patent.

Mr. Alex. P. Browne and Mr. Marcellus Bailey for the appellant.
Mr. W. A. Megrath (law clerk) for the Commissioner of Patents.

MORRIS, J.:

This is an appeal from the decision of the Commissioner of Patents refusing an application for a reissue of Letters Patent.

The decision of the Commissioner, as appears from the record, was made on May 24, 1895, ante, 66; 77 O. G., 451, and this appeal was not taken until April 8, 1896, nearly a year after the decision. By the rules of this court, which were in force at the time that decision was rendered and for upward of seven months prior thereto and which were promul

gated in pursuance of the express terms of the Acts of Congress of February 9, 1893, and July 30, 1894, creating this court and defining its powers, the appeal comes too late and cannot be considered. The second section of Rule 20 provides that appeals from the decisions of the Commissioner of Patents—

shall be taken within forty days from the date of the ruling or order appealed frɔm, and not afterwards;

and the present appeal has been taken in plain disregard of that rule. Not even an excuse is sought to be given for the delay. Now, while some rules of court, from their peculiar nature and application, may have in them an inherent element of elasticity that would justify their modification from time to time in special cases, rules of court are intended to be a law for the court itself, as well as for parties and counsel, until they are changed in pursuance of the same power under which they have been promulgated; and to no rule is rigid adherence required more than to those which prescribe the time within which appeals are to be taken, and which in their nature, as long as they are in force, are intended to have the effect of statute.

Before these rules were promulgated there was much controversy in regard to the time to be allowed for the taking of appeals from the Commissioner of Patents, and this rule was made for the express purpose of setting the controversy at rest. We do not feel that we are at liberty ourselves to disregard the rule or to permit it to be disregarded by parties to proceedings in the Patent Office.

We come to this conclusion more readily in the present case for the reason that even upon a consideration of the merits of the case we see no sufficient reason to disturb the decision of the Commissioner of Patents.

The appeal will be dismissed, and the clerk of this court will certify this opinion and the proceedings in the cause to the Commissiouer of Patents in accordance with the law.

[Court of Appeals of the District of Columbia.]

HIEN T. PUNGS.

Decided December 1, 1896.

77 O. G., 1600.

1. APPEAL TO THE COURT OF APPEALS OF THE DISTRICT OF COLUMBIA-LIMITATION OF TIME.

There is no justification for the theory that, since Revised Statutes 4894 gives an applicant a possible two years in which to prosecute his application, he has two years in which to take an appeal to the Court of Appeals of the District of Columbia.

2. APPEAL-ALTERATION OF TIME.

The right of appeal is not a vested right, but may be altered by statute or by rule of court made in pursuance of statutory authority to enact such rule.