Page:Federal Reporter, 1st Series, Volume 9.djvu/869

 854 FEDERAL REPORTER. �an examiner, will prove conflicting and uncertain, affords no founda- tion for present action by the court, �Another of the reasons assigned for granting feigned issues, viz., because "the court is so sensible of the deficieney of trial by writteu evidence," (2 Daniell, Ch. Pr. 631,) also fails in this case, for it is quite apparent that on a jury trial the testimony would be for the most part in writing, owing to the circumstance that the transaction in question occurred in Texas. �For these reasons the motion to award feigned issues in the caie at this time is denied. ���WoosTEE V. Clabk and others. {Œreuit Court, S. D. New York. August 29, 1881.) �1. TEBTIMONr— RULE 69. �Bquity rule 69 is imperative that no testimony taken after time shall Vie ullowed to be read at the hearing. �On Motion to Strike out Testimony. �Blatchfoed, C. J. The motion to strike out the testimony taken on the part of the defendants must be granted. Eule 69 is imperative, that no testimony taken after time shall be allowed to be read at the hearing. The plaintifif duly objeoted on the record to the taking of what was taken, on the ground that it was taken after time, and such objection has never been waived. Moreover, the defendants, after that, specially moved for time to take proofs, and the motion was denied. �The proof of the sale of a binder is sufQcient. It is plain that it infringes claims ^, 4, and 5. The granting of the reissue to the plaintiff is sufficient proof of his title to sue. �There must be a decree for the plaintiff. ��� �