10 FEDERAL_ msroarrsrt.
’ nothing toivary the desirability but the decision of thecase. Sog far as
appears there was nothing to prevent the attendance of the senior coun-
sel at the examination of Albert Sowles in April, 1886. 2 The testimony
of the defendants was not taken until January, 1887,- andthat of Albert
Bowles on this point lay on the surface of the case, in plain sight, dur-
ing all the intervening time, for consideration as to what should be done
inrespect to having it .explained,.or attempting to contradict it. And
the defendant’s counsel was present to cross-examine Edward A. Sowles,
when he testified, if that was deemed advisable,. The defendant andhis
, counsel in charge did as they deemedbest as to all of these things. In
· view of what they knew aboutrthe facts of the case, their course may
have been the wisest one to take, and may not. The real question is
whether whatwas done then should be allowed _tc be done over again.
V because it“is.thought now that it ecan be done in a better manner. That
it is within therpower»of.— the courtto allow. this to be done now, is be-
g yondgquesticn. s- But this is not rtpower to _be exercised. arbitrarily, or
otherwise than iaccording to the uslwl modes of procedure in such cases,
` ‘ has establishedrand understood, ..Any other course would tend to the
sconfusion ofiparldes as,to when and how their cases_ should be made up
and presentednand thereby makerthe administrationof justice less cer-
tain, and increase the chances ofiujustice. ‘ , ‘ V
In Ruggles v. Eddy, 1·15Blatchf,-524,the defendantls counsel admitted _
that theirstoves.1 infringedithe plaintiffs patent, if it was valid. The de-
fendants moved to open thecase, after an interlocutory ,decree, and to
be permitted to contest the questibn. of infringement, onthe ground that
-if theircounsel had sufficiently studied the patent and examined their
Stoves, theadmission would not have been made. lUpon this Judge
' .WOODRUFE said:. f   ...»_ ..ii` V
“ "I amconstrained to hold the defendants concluded- Their case, as made by
themselves, rests either upon theirown want of duediligence, or_the want
.o_f_ dueintelligence on the part, of.their counsel. By this the complainant
_ ought not to be so far pre'udiced as,·atte1· decree, reference, and reportof the
master, to be compelled go go a ain.` through the litigation, on a pointfdis-
`tiuctly presented and proper todae met- at the outset, Their case, as pre-
sented by the counsel whom they haveemployed for the purposes of this mc-
tion, andvwho regardsit as clear: that,.as`to most of the stoves which they had
made, they had Woided ythe operation of the patent, seems, at first view, one
of hardship; but, if; that is so, the defendants have brought it upon themselves
_   their own negligence, or by relying on a degree of vigilance, study, audac-
_curacy on the partof their several counsel which they now think was inad- V
= equate to their protection. N 0 case has beenreferred to which, in any degree,
tends toisanction the latitude of indulgence which the defendants here seek.
Gases are numerous tendingdm the other direction, of which India Rubber
— ·,,Co. v._ Phelps, 8 B1atohf.185; H itehqcck V. Trema ine, 9 Blatchf; 550; Precast
  Gratz, Pet, C.   364; and Livingston v. Hubbs, 3 J ohus. Ch. 124,-are
` ·.°?“’mPl°“·". ,   , · 2 . · ·; V. · .. . »
··   similar decision was made by··Judge Jonusou, in Webster Loom Oo.
v, Higgins, 13 Blatchf. 349... °
P In De Florez v. Royrwlds, 16 Blatchf. 397, the defendant7s counsel,
after examination of a-prior patent, omitted to put it. in as evidence.
After an interlocutory degree the defendants moved, by other counsel,