Lock v. Pennsylvania R.

(after reviewing the facts). 1. Tire motion comes too late as to Dripps & Wood. They were examined without objection, and it does not appear from the record that the complainant raised any question as to their competency until after the close of their examination. It is well settled, as a matter of practice, that complainant cannot acquiesce in the taking of testimony under such circumstances, and after-wards object to it for want of notice. The law does not allow such experiments to be made. See the opinion of this court in Roe-mer v. Simons [Case No. 11,997], and the subsequent affirmation of the case by the supreme court in 95 U. S. 214.

2. Nor does the objection apply to the evidence of Buzby. His name is given in the answer, and he is described as a resident of Bordentown, N. J. I think that this is sufficiently definite where the witness resides in a small place like Bordentown. Slight inquiry would find him if he was there. A different rule would probably have been applied to a large city like Philadelphia, if the complainant had not waived the objection by allowing the examination of Mr. Dripps.

3. I have had more difficulty in allowing to stand the testimony of the other witnesses, whose names were not disclosed in the an*734swer. The defendants do not claim that it should be received as evidence of their own knowledge, or prior use of the invention, but simply as proof of the alleged prior use by the Camden and Amboy Railroad. With this restriction of its scope, it is perhaps competent. The weight of authority seems to be that where a detendant gives notice of a prior use of the invention, by a specified person, he is not obliged to call the person indicated, but may prove the fact by some one else.

The motion to strike out is refused.