Page:Federal Reporter, 1st Series, Volume 5.djvu/211

 GIANT POAVDER CO. V. OAÏi. VIGORIT POWDBB 00. 199 �the attention of complainant's counsel at San Francisco was called to it, and a note of authorities on the point was received from him, embracing the greater part of those mentioned in the petition for rehearing. Whether the position be well taken or not cannot affect the decision of the case, if the re-issued patent cover a different invention from that described in the original patent. �But the petition cannot now be considered by me at Wash- ington. It ia not an ex parte proceeding; it can only be presented on notice, and can only be considered after the other aide bas had an opportunity to answer it. The ex parte presentation by counsel has evidently been made from a fail- ure to distinguish between an application for rehearing after the decision of an appellate tribunal, and an application for a rehearing in a court of original jurisdiction after entry of a final decree. The distinction between applications for rehear- ing in the two cases is pointed ont by Chief Justice Taney, in Brown v. Aspden, 14 Ho-ward, 26 : "By the established rules of chancery practice," said the chief justice, "a rehearing, in the same sense in which that term is used in proceedings in equity, cannot be allowed after the decree is enrolled. If the party desires it, it must be applied for before the enroUment. But no appeal will lie to the proper appellate tribunal until after it is enrolled, either actually or by construction of law; and, consequently, the time for a rehearing must have gone by before an appeal could be taken. In the house of lorda in England, to which the appeal lies from the court of chancery, a rehearing is altogether unknown. A reargument, indeed, may be ordered, if the house desires it for its own satisfac- tion. But the chancery rules in relation to rehearings, in the technical sense of the word, are altogether inapplicabla to the proceedings on the appeal. �"Undoubtedly, this court may and would call for a reargu- ment where doubts are entertained, which it is supposed may be removed by f urther discussion at the bar. And this may be done after judgment is entered, provided the order for reargument is entered at the same term. But the rule of the court is this — that no reargument will be heard in any case ����