Page:Federal Reporter, 1st Series, Volume 6.djvu/98

 86 FEDERAL REPORTER. �PlSCHER V. HaYES. �(Circuit Court, 8. D. New York. January 26, 1881.) �1. Motion to Steike Out Testimont. �Motion to strike out testimony upon the grounds (1) that said testi- moay, and the oatlis thereto, are fictitious and void ; (2) that the direct testimony of said witnesscs is f raudulent and inoperative ; and (3) that said testimony is unauthorized, and does not properly form any part of the record, or of the proofs, denied, under the circum- stances of the case. — [Ed. �In Equity. Suit for Infringement. �Charles F. Blake, for plaintiff. �James H. Whiteleqge, for defendant, �Blatchford, C. J. This is a motion by the defendant to Btrike out the testimony of John D. MacClay and that of Phillips Abbott, taken in this case for final hearing, on the grounds set forth in the notice of motion : (1) That said testi- mony and the oaths thereto are fictitious and void; (2) that the direct testimony of said witnesses is fraudulent and inop- erative; (3) that said testimony is unauthorized, and does not properly form any part of the record, or of the proofs herein. �The affidavit for the motion, made by Mr. MacClay De- cember 7, 1880, is to the effect that on the eighteenth of March, 1880, the day his direct testimony purports to have been taken, he went to the office of Mr. Blake, the plaintiff's soliciter, and there Mr. Abbott read to him a paper, but presented to him no drawing, and asked him to sign the paper, and he signed it ; and he was then taken by Mr. Con- oUy before Mr. Shields, the examiner, and was sworn by Mr. Shields to tell the truth and the whole truth, the paper not being present, but being retained by Mr. Abbott ; and that he did not after that give any deposition or return to Mr. Blake's office. He also says that when Mr, Abbott so read the said paper to him he did not read any questions to him, and he did not make any of the answers purporting to have been made by him. His explanation is that -what was so read to him was in narrative form, and he thought it 'was an ��� �