Page:Federal Reporter, 1st Series, Volume 2.djvu/338

 PAQB V. HOLMES BUBOLA.B ALABM TEL. 00. 831 �may be taken in respect of the matters" mentioned in said petition. It is not set forth in the petition that any ques- tions of law or of fact, which arise on the reoord in the case, ■were not presented to or considered by the court, or that any questions of fact or of law ariaing on the record, which were presented to or considered by the court, were not properly disposed of by it. The petition sets forth "that a rehearing of this cause, and permission to take further evidence pre- paratory thereto, would tend to the furtheranee of justice," for reasons therein stated. Those reasons, as so stated, are — �"First. That, since the decision, the defendant has dis- covered that a machine was made by one Hall, in Boston, in 1847, and then used for receiving and sending telegraphie messages, which machine contained the device described in the thirteenth claim, and reference is made to the affidavit of Hall; that, at the time the evidence in the cause was tak'en on the part of the defendant, it had used, as it supposed, ail due diligence to obtain ail competent evidence of past inven- tions, but it failed to find said machine until the information thereof was communicated to it by Mr. Hall himself, after the publication of the decision in this case, until which time the machine made by Hall in 1847 was not known by the defendant to be in existence; and that the said machine, a description thereof, and the time when it was made and used, are material and necessary facts to establish the de- fendant's right to use the machine which the plaintiflfs claim to be an infringement .of their patent, and will show that tha combination and devices described in the thirteenth claim of the patent were in use prior to the year 1854. �"Second, That legal evidence as to when the Morse model instrument was made, and by whom, for want of which such instriiment was rejected when before offered in evidence, can now be supplied by the testimony of two persons, to whose affidavits reference is made ; that the defendant has acquired knowledge of such fact only since the decision of this cause, and that, by making proofs in relation thereto by the testi- mony of said two witnesses, the defendant expects to be able ����