306 EXCHEQUER COURT OF CANADA. [VOL. VL. 1899 T H E GENERAL ENGINEERING Jane 1 4. COMPANY OF ONTARIO PLAINTIFFS ; (LIMITED) * AND THE DOMINION COTTON MILLS COMPANY, LIMITED, ANI) THE DEFENDANTS. AMERICAN STOKER COMPANY. Practice—Motion to re-open trial—Affidavit meeting evidence produced at trial—Grounds for refusal. An application was made after the hearing and argument of the cause but before judgment, for the defendants to be allowed to file as part of the record certain affidavits to support the defendants' case by additional evidence in respect of a matter upon which evidence had been given by both sides. It was open to .the defendants to have moved for leave for such purpose before the hearing was closed, but no leave was asked. It also appeared that the affidavits had been based upon some experiments which _ had not been made on behalf of the defendants until after the hearing. Held, that the application must be refused. Humphrey v. The Queen and DeKuyper v. VanDulken (Audette's Ex. C. Pr. 276) dis-. tinguished. MOTION for leave to re-open the case after trial and argument but before judgment. The grounds upon which the motion was based appear in the reasons for judgment. May 6th, 1899. F. S. Maclennan, Q.C. for the motion, cited Humphrey y. The Queen (1) ; DeKuyper y. VanDulken (1) ; Trumble v. Horton (3). J. L. Ross, contra. (1) 2 Audette's Ex. C. R. 276. (2) 3 Ex. C. R. 88. (3) 22 Ont. A. R. 52.
VOL.' VT.1 EXCHEQUER''COURT,OF. CANADA. THE JUDGE Or': THE EXCAQ,E, U ER .COURT now (June 14th, 1899) delivered judgment. This is an . application to re-open the trial of ._this action,, so far as may be necessary to file as: part of. the INa.Co. record thé -affidavits of Dr. Henry Morton and John . " • Wolfe, with reference to.°a test and .experiment made in the City of Brooklyn, in the State of: New .York; on. the COTTON 22nd of A P 'r ll, 1899, of a furnace erected.in accordance MI with the • particulars and specifications of the-::United . States Patent No.-310,110 -issued .. to Amasa Worthing- toli, dated 30th. December, 1884, filed us defendants' Exhibit D.". in this case. This evidence, is .intended, no .doubt, to inèet the view expressed by Professor Nicholson at the trial that the Worthington Stoker made according to' the • patentmentioned would .pot work successfully. This case: was heard, at Montreal, on the .111th, 12th, 13th and 14th days of -AprilJast, and Professor Nicholson was first called on• the 11th, and in his evidence, given on'that 'and the succeeding day, expressed the view that has been referred to. He was again called on the 18th and gave expression to the same view. -' ' `After 'the' trial the' defendants appear to have. had some experiments made which..they no doubt think tend to prove that Professor Nicholson was mistaken, and which they now seek to have submitted to the court. I think, however, that the application, made as it is, after the taking of the evidence has been closed and the case argued, is made too late. If I should re-open the case to permit the defendants to give evidence of 'this kind, I could not well refuse a like indulgence to the plaintiffs. Such a practice would, I think, be found to be very inconvenient and undesirable. Reference was made on the argument of the motion to the cases in this court of Humphrey y. The Queen 2I . 307 1899 T ENGINEE L l}INEER- : or ONvaRIO DoTI~nI E A L N L D s T C Hz o ç . AMERICAN sTO$ER Co. a r:r"*. ~...—
308 EXCHEQUER COURT REPORTS. [VOL. VI. 1899 (1), and .DeKuyper v. VanDulken (1). But Humphrey T E a V. The Quern was a case in which there had been a GENERAL preliminary judgment and a reference for assessment ENGINEER- ING Co. OF of damages ; besides there could be no final judgment ONTARIO wtithhoout the case coming again before the court. In THIC the case of DeKujper v. Van Dulken a motion to re- DOMINION open was allowed and a commission issued to take 1MTLuImL LB Co. evidence AND THE upon a po int as to which no evidence had AMERICAN been given, and in respect of which it was left optional STOKER CO to both parties to produce evidence. In the present gro r o o l r~ case there is evidence before the court as to whether Jsaammas. the Worthington Stoker, made in accordance with the patent above referred to, would work successfully or not, and the re-opening of the case would not be for the purpose of taking evidence upon that point, but to answer evidence already given. That is something, I think, which ought not, under the circumstances of this case, to be permitted, The application will be refused, and with costs. Judgment accordingly. Solicitors for the plaintiff's : Rowan car Ross. Solicitors for the defendants: Macmasler 4. Maclennan.. '1) Attdette's Ex. C. Pr.'276
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