Page:Federal Reporter, 1st Series, Volume 8.djvu/722

708 FEDERAL REPORTER. �On June S, 1881, solicitor for complainants filed a motion for a final deoree, on. the grounds that by the plea the main facts of the bill were admitted, and that more than ono year since issue was joined on said plea had elapsed, and that said defendant had taken rio jmaiiner of proof in support of such plea, and had obtained no extensiqn of time to take evidence under the rules of court. On June 15, 1881, on motion of solicitors for respondent, the said plea was set down for trial on June 18, 1881. On June 16, 1881, solicitor for complainants filed affidavit in support of his motion for a final decree. On June 18, 1881, the case was continued, and afterwards, on the twentieth and twenty^first of June, the plea and motion were Met down for trial at the same time. On the trial, solicitors for respondent offered in support of his plea a writing under private signature purporting to be an assignment of certain patent-rights from Theodore Lilienthal to B. & G. Moses ; a writing under private signature, to the same purport, from B. & Gr. Moses to W. W. Wash- burn, which had been acknowledged before a notary and two wit- nesses by the makers thereof; a number of ex parte affidavits taken prior to' the filing of the plea and pining of issue thereon.. AU of the above had been offered and filed in the case on the hearing for a preliminary injuhction, February 14, 1880. No notice of any intention! to offer affidavits on the trial of the plea was shown to haVe beefi given tb the complainants. The complainants filed a motion at once to suppress all the documents offered on varions grounds, namely : for insufficiency of attestation, for want of notice, and for their ex parte charaeter. �The first question presented to me is on the motion to suppress. Under the sixty-seventh, sixty-eighth, and sixty-ninth rules in equity it is doubtful whether, on the trial of an issue such as is tendered in this case, ex parte affidavits can be offered at all. If they can be, then it must be on notice to the adverse party and the tender of affiant for eross-examination. �"Witnesses who have made affidavits, or been examined ex parte before the exatainer, are liable to eross-examination at the hearing. And when a party bas given notice to read an affidavit, be will not be allowed to withdraw the affidavit and so prevent eross-examination. No affidavit or deposition filed or made before issue is joined in any cause will, without especial leave of the court, be received at the hearing thereof, unless within one month after issue joined, or such longer time as may be allowed by special leave of the court, notice in writing has been given, by the party intending to use the same, to the opposite party of his intention iu that behalf." 1 Daniell, Ch. 888, 889. �The writing under private signature between Lilienthal and Moses ��� �