Page:Federal Reporter, 1st Series, Volume 6.djvu/103

 FISCHKR V. NEIL. 91 �macliine. The answer states that the defendant is "advised that his machine does not conflict with that described in said letters patent of complainant." It also denies that the plain- tiff has ever had any just right, by virtue of any patent, in "the machine" used or operated by the defendant. This is sufficient, in view of the foregoing considerations, to show a use by the defendant of the machine seen and described by Mr. Abbott. Takingthe whole bill together, it must be held to aver a use since the plaintiff's patent was granted, and the proof and the answer must be held to apply to such a use. �No objection made to the regularity of the taking of the testimony of Mr. Abbott is tenable. In addition to the points considered in the decision on the motion as to the evidence in the Hayes case, so far as those points apply to this case, the record states that the evidence of Mr. Abbott was taken before the examiner, and that Mr. Abbott was first duly sworn, and there is a jurat at the end purporting to show a reswearing of the witness after the close of his whole testi- mony, and the examiner certifies that the proof s were taken before him. No objection, setting forth any irregularity, ap- pears on the record, nor has any motion been made based on any, except in so far as the motion made in the Hayes case covers any. Any issue as to the citizenship of the plaintiff, raised by the pleadings, is immaterial, as the subject-matter gives jurisdiction. None of the objections taken by the de- fendant, in the course of the examination of Mr. Abbott, are regarded as tenable. �The patent having been granted to the plaintiff, he is to be pi-esumed to be still the owner of it. No assignment by him is alleged or proved. There must be the usual decree for the plaintiff as to the fourth claim of the patent. ��� �