Page:Federal Reporter, 1st Series, Volume 2.djvu/340

 PAGE V. HOLMES BtIRGLAB AIiAEM TEL. 00, 833 �To tbis petition the plaintiffs demur, and show for cause of demarrer that, according to the constant praetice of thia court, the defendant bas not set forth and proved such a state of facts in respect to newly discovered evidence as to entitle it to a new trial of the naerits of the case, but, on the contrary, the petition shows that ail the pretended newly dis- covered facts were easily accessible to the defendant, and that it had full knowledge and notice of the existence of whatever facts were true in relation to the subject-matter*of said peti- tion, and could easily have proved the truth in regard to such matters. �The third branch of the petition seems to suggest that the defendant may, perhaps, in the future, desire to use the com- bination and devices covered by the twelfth and thirteenth claims of the plaintiffs' patent in connection with a long or main circuit for telegraphing, and that if it does so it may, perhaps, be proceeded against for violating an injunction to be issued on the decree which may be entered on the decision which has been made in this case, and that it desires to have such deeree so drawn as to accord the right to such use, and that, as a basis therefor, it desires to produce the testimony mentioned in that connection. It is quite sufficient to say that whenever the defendant shall use what is suggested in connection with a long or main circuit for telegraphing, and shall be proceeded against for doing so, an issue will be raised which it will be proper then to consider, but that no such issue has yet arisen. �Within the principles laid down in Smith v. Babcock, 3 Sumner, 583; Baker v. JVhiting, 1 Story, 218; Walden v. Bodley, 14 Peters, 156; Indiarubber Comb Co. v. Phelps, 8 Blatchf. Cir. Ct. Eep. 85; Hitchcock v. Tremaine, 9 Cir. Ct. Eep. 550; Prevost v. Gratz, Peters' Cir. Ct. Eep. 364; Livingston v. Hubbs, 3 John Ch. Eep. 124; Ruggles v. Eddy, 11 Blatchf. Cir. Ct. Eep. 524; Webster Loom Co. v. Higgins, 13 Cir. Ct. Eep. 349; and De Florez-v. Reynolds, in this court, June 9, 1879, this demurrer must be sustained. The defendant does not show that it could not with reasonable diligence bave obtained, prior to the former bearing, the testimony which it ����