Page:Federal Reporter, 1st Series, Volume 6.djvu/90

 78 ���FEDEEAL EEPORTEB. ���The order dated March 19, 1880, but actually flled and entered March 25, 1880, made oa the defeudant's motion to dismiss the bill for the foregoing reasons, disposed of the foregoing questions. It was an order within the power of the court to make, in the exercise of its discretion, under rules 66 and 69. The court could rightfully direct the replication filed and the proofs talcen to stand, as if the proceedings had severally been had within the times prescribed, as fuUy as if the order of the court to that effect had been made before taking such proceedings. The record shows that as full opportunity was given afterwards to the defendant to enter objections on the record to the proofs previously taken, and to cross-examiue the witnesses before examined, as if bis counsel had been present when they were taken, and that he availed himself of such opportunity. The order, through some oversight, does net show on its face that aifidavits were presented on the part of the plaintiff as a foundation for denying the defendant's motion and for granting the plaintiff the relief granted. Such affidavits are on file among the papers in the cause, and it clearly appears that they were presented and acted on by the court. Like affidavits were presented on like motions made at the same time in the case against Neil and the case against O'Shaughnessey and Simp- son, and those affidavits are recited in the orders made at the same time, of the same tenor, in those two cases. �(2) As to the objections to the direct testimony of the wit- nesses MacClay and Abbott. These questions are disposed of in the decision on the separate motion of the defendant to strike out such testimony. �(3) The bill charges that the defendant "bas operated and used, and is still operating and using, in the city of New York, at No. 71 Eighth avenue, a machine or machines constructed in aceordance with and containing and embodying" the in- vention secured by the patent. The objection is taken that the bill does not state what the defendant has made by the use of the machine, or that he has made comices with it. The patent grants to the plaintiff the exclusive right to use the ��� �