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that none of the evidence admitted could be lawfully received under the pleading and evidence in the case. If it sustains such objections, its ruling must be reversed, if any part of the evidence rejected was admissible upon any is. sue before the court."
Also, Bamford v. Lehigh Zinc and Iron Co. (C. C.) 33 Fed. 677; American Exp. Co. et al. v. Lankford, 93 Fed. 380, 35 C. C. A. 353.
Numerous authorities show the scope of rebuttal testimony, from which cases a few quotations are as follows:
"Rebutting evidence is that which is given by a party in a cause to explain, repel, contradict, or disprove the facts given in evidence by the other side. Directness in the technical sense is not essential to give the evidence that character, nor is it necessary that the contradiction should be complete and entire, in order to admit the opposing testimony. Circumstances may be offered to rebut the most positive statement, and it is only necessary that the testimony offered should have a tendency to explain, repel, counteract, or disprove the opposite statement, in order to render it admissible." United States v. Holmes, 1 Cliff. (U. S.) 98, 26 Fed. Cas. No. 15,382.
"Rebutting evidence is that which repels or counteracts the effect of evidence which has preceded it. Evidence which shows that the evidence of the opposite party was not entitled to the force and effect which the law imputes to it prima facie must in its strictest sense be rebutting." Davis v. Hamblin, 51 Md. 525, 529.
"Rebutting testimony is addressed to evidence produced by the opposite party, and not to his pleading." Lux v. Haggin, 69 Cal. 255, 10 Pac. 674, 767.
“The rule is that evidence in reply must bear directly or indirectly upon the subject matter of defence, and ought not to consist of new matter unconnected with the defence, and not tending to controvert or dispute it." United States v. Gardiner, Fed. Cas. No. 15,186a.
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In Chadbourne v. Franklin, 5 Gray (Mass.) 312, Chief Justice Shaw held that it was no objection to testimony offered by plaintiff in rebuttal, which tends to contradict the defendant's witnesses in a material point that it also tends to corroborate the case made by the plaintiff's evidence in chief.
The defendant, while not disagreeing with ti e complainant as to what is testimony in rebuttal, takes the position that the depositions objected to are in reality the testimony of witnesses newly discovered, afterthoughts, and portions of the complainant's case which were made desirable by the testimony produced on behalf of the defendant. The court is of necessity compelled to pass upon the question, and not leave the parties to objections upon the final hearing upon any testimony which either side may see fit to produce before the special cxaminer. The time for taking testimony having totally elapsed, unless some order is made, the case must be heard upon the record as it stands at present. To strike out the depositions without cicciding whether any of the questions and answers are proper rebuttal, would result in making these depositions a part of the record on appeal, while the defendant would be entirely prevented from the further taking of testimony. If any of the testimony were properly rebuttal, the Circuit Court of Appeals would then have the complainant's entire record, but would be compelled to send the case back for further hearing, or leave the defendant without opportunity to answer new evidence of the complainant in the particular depositions. On the other hand, to deny the motion to strike
out the depositions necessitates 'considering whether the defendant should have an opportunity to put in further evidence as a part of its defense. From such examination of the depositions as may hastily be made, it would seem that a portion of each deposition is within the limits of rebuttal testimony, and, if this situation arose in the trial of a case with a jury, a portion of each deposition would be allowed in rebuttal. But each deposition also contains matter which, while meeting the requirements of rebuttal testimony, is additional evidence for the complainant in support of its case, and it is impossible on this motion to go through and strike out, question by question and clause by clause, the testimony which is not strictly rebuttal. The only other course seems to be to give the defendant a chance to take such testimony as may be required by the present condition of the case, with the depositions objected to in evidence.
The defendant, however, has not, in making the alternative motion, indicated what testimony it wishes to introduce, nor how much time it will require. Again, referring to the situation upon a trial before a jury, if the defendant should wish to call witnesses after testimony has been given in rebuttal, the court would certainly require the defendant to say who the witnesses were, and to indicate what it was desired to prove, and would rule accordingly. The defendant will therefore be given time to take the testimony it desires, if it can satisfy the court that it has any witnesses who can give testimony that is competent and material to the present condition of the issues; but it must, either by affidavit or by statement upon a further hearing, indicate who the witnesses will be, what their testimony in a general way will prove, and how much time will be needed in its opinion for the purpose.
A further hearing will be had at 4 o'clock upon the afternoon of April 12th.
THE ANN J. TRAINER. THE BAY PORT. (Circuit Court of Appeals, Fourth Circuit. April 9, 1907.) No. 692. Appeal from the District Court of the United States for the Eastern District of Virginia, at Norfolk. Edward R. Baird, Jr., for appellant. Floyd Hughes and Stephen R. Jones (Carver & Blodgett, on the brief), for appellee. Before GOFF and PRITCHARD, Circuit Judges, and MçDOWELL, District Judge.
MCDOWELL, District Judge. The opinion of the trial court is reported in 144 Fed. 896, 899. After careful study of the record we are of opinion that the trial court decided this case properly. The opinion below accords so entirely with our views that it is hereby adopted as the opinion of this court. Affirmed.
DILLINGHAM v. BAKLEY et ux. (Circuit Court of Appeals, Fourth Circuit. May 7, 1907.) No. 701. Appeal from the District Court of the United States for the Eastern District of Virginia, at Norfolk. L. L. Lewis, U. S. Atty. (Ro, H. Talley, Asst. U. S. Atty., on the brief), for appellant. Mary Philbrook, for appellees. Before PRITCHARD, Circuit Judge, and McDOWELL, District Judge.
PER CURIAM. We have carefully considered the questions involved in this case, and we find no error in the rulings of the learned judge who tried the case below. Therefore we affirm the judgment of the court below, fully concurring in the opinion, which is to be found in 148 Fed. 56.
HOPKINS et al. v. HÉBARD. (Circuit Court of Appeals, Sixth Circuit. May 17, 1907.) No. 1,651. Petition for Leave to File Bill of Review. C. B. Matthews and E. P. McQueen, for petitioners. T. E. H. McCroskey, for respondent. Before LURTON, SEVERENS, and RICHARDS, Circuit Judges.
PER CURIAM. This is an application for leave to apply to the Circuit Court for the Eastern District of Tennessee for permission to file in that court a bill to review a final decree of that court, which, upon appeal, was affirmed by this court, in a cause styled David W. Belding et al. v. Charles Hebard, 103 Fed. 532, 43 C. C. A. 296. Without deciding any question which may be involved in the application for leave to file such a bill, this court, for reasons satisfactory, now consent that the petitioners may apply directly to said Circuit Court, which court will grant or refuse permission as it may be advised. Board of Councilmen of City of Frankfort v. Deposit Bank, 124 Fed. 18, 59 C. C. A. 538.
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KEAN v. DICKINSON. (Circuit Court of Appeals, Fourth Circuit.' April 9, 1907.) No. 699. Appeal from the District Court of the United States for the Eastern District of Virginia, at Richmond. Legh R. Page (W. J. Leake, on the brief), for appellant. G. A. Hanson, for appellee. Before GOFF and PRITCIIARD, Circuit Judges, and McDOWELL, District Judge.
MCDOWELL, District Judge. The opinion of the trial court (In re Bolling, [D. C.) 147 Fed. 786) is entirely in consonance with our views, and it is hereby adopted as the opinion of this court. Affirmed.
In re NORTHERN S. S. CO. (Circuit Court of Appeals, Second Circuit. April 8, 1907.) On Petition for a Writ of Mandamus. See 140 Fed. 263. John C. Shaw and Herbert K. Oakes, for petitioner. Before WALLACE, LACOMBE, and TOWNSEND, Circuit Judges.
PER CURIAM. The decree below awarded interest upon the amount of damages "until the same shall be paid." As modified by this court, the award of interest is undisturbed, except as to the item of demurrage. The court below has correctly interpreted the mandate. The application of the petition is denied.
TOY GAUP v. UNITED STATES. LOY TOO v. SAME. (Circuit Court of Appeals, Second Circuit. April 12, 1907.) Nos. 292, 293. Appeals from the District Court of the United States for the Northern District of New York. R. M. Moore, for appellant. H. E. Owens, for the United States. Before WALLACE, LACOMBE, and COXE, Circuit Judges.
PER CURIAM. Orders affirmed. (147 Fed. 750).
WEEMS STEAMBOAT CO. OF BALTIMORE CITY V. PEOPLE'S STEAMBOAT CO. et al. (Circuit Court of Appeals, Fourth Circuit. May 7, 1907.) No. 662. Appeal from the Circuit Court of the United States for the Eastern District of Virginia, at Richmond. St. George R. Fitzhogh and George W. Wil-liams, for appellant. William D. Carter, for appellees. Before GOFF and PRITCHARD, Circuit Judges, and MeDOWELL, District Judge.
PER CURIAM. A careful examination of the record impels us to an affirmance of the decree appealed from. The opinion of the court below, reported in 141 Fed. 454, has our approval.
COUCH PATENTS CO. V. NEW YORK WOVEN WIRE MATTRESS CO. (Circuit Court, S. D. New York. May 23, 1907.) Action in equity to restrain alleged infringement of claims 1 to 8, inclusive, and claim 12, of United States letters patent No. 712,718, to Adrian de Piniec-Maliet, dated November 4, 1902, for extensible bedstead or couch. Charles Neave and Linzee Blagden, for complainant. Roberts & Mitchell and Charles C. Gill (Odin Roberts, of counsel), for defendant.
RAY, District Judge. On the whole, and in view of the prior art, I am satisfied of the validity of the claims of the patent in suit, and that defendant infringes. Anticipation is not established. There will be a decree for complainant, with costs.
LOONEN V. DEITSCH et al. (Circuit Court, S. D. New York. April 10, 1907.) In Equity. On demurrer to bill. Goepel & Goepel, for complainant. Joseph H. Levy, for defendants.
HAZEL, District Judge. The demurrer to the bill on the grounds that it does not affirmatively allege that the complainant complied with the require ments of Act Feb. 20, 1905, C. 592, 33 Stat. 724 (U. S. Comp. St. Supp. 1905,
to registration of trade-marks, and that it does not allege any date of adoption and use of the trade-mark in suit in the United States, is overruled, with costs. Defendants may answer within 20 days.
END OF CASES IN VOL. 152