MARTIN & HILL CASH-CARRIER CO. v. MARTIN, 71 F. 519

PER CURIAM. In this case we ordered a rehearing of the questions of estoppel raised by the appellant. The rehearing has been-had, and we have carefully considered the propositions then made to us, and find no occasion to modify our opinion passed down May 9, 1895. 14 C. C. A. 642, 67 Fed. 786. We see no equity in the application that leave may be reserved for amendments in the circuit-Court.

The case in that court was not made up so as to test the validity and effect of the several patents which the appellant ¿ow asks to be permitted to have opportunity to introduce formally, nor' have we the proofs here bearing upon them. It seems plain that the complainant framed its case deliberately, — in fact, so deliberaielythat it amended by striking out allegations as to several of the patents referred to, and by cutting down the bill to its present form. It now asks to make a case in substantial respects different from that deliberately made in -the circuit court. Moreover, the decision there was against it.

Then was its proper time to apply for leave to amend, if it desired to do so, in order to strengthen its position. If the decision below had been in its favor, and this court had reversed that decision on grounds which operated as a surprise, or if we had the facts here, and there was a mere error in pleading, the equities in favor of the application might be different. We think the distinction must be kept clearly in view between amendments allowable before an appeal and those for which a cause is to be kept along thereafter.

Most of the decisions cited by the appellant relate to the former, and so are not in point; and none of them sustains this application. Woodward v. Boston Lasting Mach. Co., 11 C. C. A. 353, 63 Fed. 609, Was an exceptional' case, the point on which it turned in this court having been made by the court itself. This case comes within the closing remarks of our opinion in American Bell Tel. Co. v. U. S., 15 C. C. A. 569, 68 Fed. 542, 570, as follows: “We have already found that, as the record now stands, it contains no proof to sustain an allegation of this character.

Therefore, an amendment of this nature would require the opening of the record below for further proofs. It is not at all a case where a complainant has proved his case, but his allegations are found by the appellate court to be inapt. To grant this motion iyouiq, under the circumstances, violate all the rules requiring diligence from parties complainant.” The decree heretofore entered having been vacated by the allowaricé of the petition for a rehearing, the decree of the circuit court is ¿ffirmed, with costs.