answer. Attorneys have also adopted the practice in numerous causes of stipulating an extension of time, and, prior to the expiration of the twenty days during which the answer must be filed under the rules, secured the approval of the stipulation by the court before whom the case is pending, and have accomplished satisfactory results thereby.

3

In one case, however, which has been called to the writer's attention, the defendants failed to answer within the time specified by the rules, and immediately thereafter filed a petition setting up the following facts: that the summons was served on one of defendants' officers when he was on his way to the train for the purpose of meeting an important business engagement in the west; that he gave the summons to his son to be given to his attorneys; that by an oversight no appearance was entered nor answer filed. A petition was filed by the defendants asking leave under the circumstances to answer. This petition was denied.

The equity rules do not contemplate the deprivation of defendant of his rights to be heard under such circumstances as these, as has been recognized by most of the courts before whom this question has come under this rule. Had the judges generally been illiberal in granting an extension of time in which to answer, great hardships would often have been incurred, for in many cases the securing of proper counsel to make a defense, in an intricate cause, has necessitated the spending of several days' time, to say nothing of the large amount of time that has been necessary to develop proper defenses after securing counsel. If the courts are liberal in granting extensions in the proper cases, such a rule is not a harsh one, and in some instances no hardship would be worked by requiring the defendant to answer in so short a period of time, particularly if he had notice sufficiently in advance of the filing of the bill. If the defendant is to be cut off entirely from his rights to be heard on account of his inability or failure to file a proper answer within twenty days, as in the instance above referred to, much better results would be universally secured by giving the defendant more time in which to file his answer. This would also save the necessity of applying to the court for an extension of time

N. S. Snyder et al. v. Brast Hotel Co. et al., brought in the Federal Court at Phillippi, West Virginia.

4 Federal Equity Rule 12.

in such a large number of cases as has been necessary since the rule was enacted.

The rule permitting amendments on proper showing to pleadings, however, lessens the rigor of rules 12 and 16 considerably, and such amendments are being frequently filed.

Another new rule of considerable importance, and intended to prevent the dismissal of causes brought on the equity side of the court when they should have been started on the law side, or vice versa, is to some extent saving time and expense in litigations. In a suit brought in Utah," the defendant filed a motion to dismiss the bill of complaint on the ground that the plaintiff was not entitled to maintain a suit in equity because it had an adequate remedy at law by ejectment. Under the old rules the equity cause would have been dismissed, but under the new rules the court, in overruling the motion there brought, holds that the equity suit should not be dismissed, and that "the objection, if well taken, is only ground for the transfer of the suit to the law side of the court and does not justify a dismissal."

This ruling seems to be entirely in accord with the spirit of the new rules, and accomplishes the results intended by them, and saves litigants considerable time and expense.

The new rule, intended to simplify and abbreviate pleadings, was universally approved by the prominent attorneys who were selected to make suggestions to the Supreme Court as to the needed changes in the equity rules. This rule is cutting down the length of bills of complaint very materially, and in a number of instances very short forms of bills distinctly stating the cause of action have been held sufficient. An illustration of this is, that under the old practice it was necessary in patent causes to plead substantially the language of sections 4883, 4886 and 4887 of the Revised Statutes, and a bill was demurrable which did not specifically plead the substance of these statutes. Under the ruling of Judge Tuttle of the Eastern District of Michigan, in the Carburetor Company case cited, it is unnecessary to plead these statutes

5 Federal Equity Rule 19.

Federal Equity Rules 22 and 23.

7 United States v. Utah Power & Light Co., 208 Fed. 821 (1913).

8 Federal Equity Rule 25.

• Zenith Carburetor Co. v. Stromberg Motor Devices Co., 205 Fed. 158 (1913).

at the present time, and it appears that the language of his opinion is in accordance with the intention of the Supreme Court in promulgating this rule, and the attorneys who drew it well deserve the commendation of the learned judge, who says:

"It strikes me that counsel for complainant, in adopting the language found in the opening paragraph of his bill, has conformed in a most gratifying degree to the language and intent of the new equity rules by simplifying and abbreviating his bill."

The bill which this judge had before him is set out in a leading authority on Federal Practice as a model for the modern bill of complaint in equity in a patent cause,10 although the author is compelled to say of it, that

"Whether such a form would be approved by another court cannot be foretold."

and in doing so refers to a decision of another court," which holds in effect that this new equity rule 12 does not abrogate the established rule in cases involving the infringement of patents requiring the bill to plead the allegations of the statutes under which patents are granted, and all the facts necessary to show that the patentee was entitled to the patent and to negative the existence of those facts which would defeat it.

It is impossible to entirely reconcile the decisions in other cases, reported 13 and unreported, with the cases cited in connection with this rule, but the majority of such opinions as I have been able to get in touch with hold that the simple form of bill, approved by Judge Tuttle in the Carburetor Company case, is adequate and to be commended.

The question of the sufficiency of the bill, in the various cases to which attention has been called, has been raised by motion to dismiss,14 which, under the decisions of various of the courts, comprehends within its broad scope the technical pleadings under the old rules known as demurrers, pleas, exceptions and the like.

This motion has been successfully used in raising the question

10 Foster's Federal Practice, 5 ed., Vol. 3, p. 2581.

11 Maxwell Steel Vault Co. v. National Casket Co., 205 Fed. 515 (1913).

12 Federal Equity Rule 25.

13 Wilson v. American Ice Co. et al., 206 Fed. 736 (1913).

14 Federal Equity Rule 29.

of the sufficiency of the bill, and a motion to strike out 15 in challenging matter not properly pleadable in an answer, and also to secure a ruling upon a single affirmative issue not set up in the bill which might have been raised by plea under the old rules. It has probably been under consideration by the courts quite as many times as any of the new rules, because of the extent to which it has been utilized by counsel in equity causes.

While it has always been possible for the plaintiff to file interrogatories in a bill of complaint in an equity cause, and in some instances for the defendant to make use of interrogatories, the new rules specifically provide for the use of interrogatories, both by the plaintiff and the defendant, for the discovery of facts, and for the inspection and production of documents material to the support of the cause of action or defense.16 Some aggressive attorneys are constantly filing such interrogatories, often with beneficial and sometimes with detrimental results.

A recent case 17 decided by the Court of Appeals of the Seventh Circuit is a striking illustration of the benefit to be derived by filing interrogatories and a motion to dismiss the bill, as these obviated the necessity of taking evidence. In this case the plaintiff filed his bill for the infringement of a patent on a protector or apron. The defendant filed its answer and attached thereto samples of each of the aprons it was manufacturing and selling, and by interrogatory asked the plaintiff which of the aprons referred to in the answer was an infringement of the patent sued on. In response to the interrogatory in question, the plaintiff specified certain of the aprons referred to in the answer, whereupon the defendant moved to dismiss the bill on the ground that the aprons did not infringe the patent sued on.

After hearing the arguments, the lower court sustained the motion, held no infringement and dismissed the bill. From the decree dismissing the bill an appeal was taken to the Court of Appeals, the latter affirming the lower court.

The rules 18 governing what may be included in the answer have been the subject of much contention among attorneys, and such courts as have passed upon them are not in harmony.

15 Federal Equity Rule 33.

16 Federal Equity Rule 58.

17 Bronk v. Charles H. Scott Co., C. C. A. 7th Cir., Oct. Term, 1913 (not yet reported). 18 Federal Equity Rules 30 and 31.

In numerous instances the defendant has attempted to plead in its answer affirmative matters entirely independent of and not in any way arising out of the cause of action set up in the bill. Some courts hold that any controversy between the parties, whether relating to the same subject-matter or not, may be litigated in the same suit. Other courts hold that any affirmative relief asked for in the answer must be germane to or arise out of the original proceeding. These latter courts are seemingly in the majority.

Most of the decisions under this Rule 30 have been in patent, trade-mark or unfair competition cases, where the plaintiff was asserting rights under his statutory grant and the defendant in his answer has either asked affirmative relief against the plaintiff for infringement of a separate and independent patent owned by him, or has attempted to sue the plaintiff in its answer for unfair competition in trade.

The situation usually arises as follows: A. brings suit against B. for the infringement of a patent. B., after answering the bill, sets up the necessary allegation for charging A. with infringement of a patent or trade-mark owned by him or for unfair competition arising out of the advertising of plaintiff's patent. The plaintiff then files a motion to dismiss or strike out the action brought by B. in his answer,19 whereupon the court hears this motion and either permits the suit by defendant to go on, or dismisses it, or strikes all allegations concerning it from the answer.

One line of cases originating in the First Circuit 20 decided that

"The provision of Rule 30 of the new rules in equity that an answer 'may, without cross-bill, set out any counterclaim against the plaintiff which might be the subject of an independent suit in equity against him,' applies only to a counterclaim proper, arising out of the transaction which is the subject-matter of the suit."

and holds that the language of this rule that

"the answer must state in short and simple form, any counterclaim arising out of the transaction which is the subject-matter of the suit."

19 Under Federal Equity Rule 30.

20 Judge Dodge, District of Massachusetts, in Terry Steam Turbine Co. v. B. F. Sturtevant Co., 204 Fed. 103 (1913).