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of the stated infringement. This last allegation has heretofore been sometimes omitted from bills in patent cases, but the omission would always have been a fatal one, if the defendants had availed themselves of it. The necessity for such an allegation follows from the rule of patent law that where a particular infringer made no profits from his infringement, no profits can be recovered from him;' and from the rule of equity pleading, that every fact which is necessary to entitle a complainant to the relief for which he prays, must be distinctly and expressly averred in the stating part of his bill."

§ 580. The prayer for relief should be both special and general. The special part should ask for a preliminary injunction, and for a permanent injunction, and for an account of the defendant's profits, and for an assessment of the complainant's damages, and for an increase of those damages, and for costs; or for as many of those kinds of relief as the complainant hopes to obtain in the action. The prayer for general relief should be in the ordinary form of prayers of that kind.

§ 581. The form of the interrogating part is prescribed by the Supreme Court. That part is designed to secure from the defendant such admissions or statements as will obviate the necessity for evidence to support those allegations of the bill which relate to his doings. The interrogatories must be divided from each other, and consecutively numbered, and a note must be put at the foot of the bill specifying which of those numbered interrogatories each defendant is required to answer. Where the complainant in his bill waives the oath which otherwise the defendant is entitled to make to his answer, or if he requires such an oath to be made only to the answer of certain specified interrogatories; the answer of the defendant,

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1 Elizabeth v. Pavement Co. 97

U. S. 126, 1877.

2 Wright. Dame, 22 Pickering (Mass.), 59, 1839.

3 Equity Rule 21.

4 Equity Rule 43.

Equity Rules 41 and 42.

though it is in fact under oath, is not evidence in his favor on any point not covered by such specified interrogatories; unless the case is heard on bill and answer only.'

§ 582. The prayer for process must contain the names of all the defendants who are mentioned in the introductory part of the bill, and if any of them are known to be minors, or otherwise under guardianship, that fact must be stated in the prayer for process."

§ 583. The bill must be signed by counsel, and by a solicitor of the court in which it is filed.' But if the attorney of the complainant is not only counsel in Federal courts generally, but also is solicitor in the particular court in which the bill is filed, his signature will suffice in both capacities.

§ 584. An oath of the truth of the bill must be appended to such a document, if it prays for an injunction.* Such an oath is to be made by the complainant, unless he is in such a situation as to be unable to make it, in which case it may be made by his agent conversant with the facts. Where the complainant is a corporation, the bill may be verified by any officer of the corporation who knows it to be true; or if no such officer possesses that knowledge, it may be sworn to by any agent or attorney who does." Where there is a plurality of complainants, the bill may be sufficiently verified by the oath of one of them.' If the bill prays for a preliminary injunction, and if its affiant can swear only on information and belief, to the defendant's doings, and to their character as infringements, the application should be fortified by affidavits of persons who know what the defendant has done, and by affidavits of experts who can intelligently testify to the character of those doings, as com

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pared with what appears to be covered by the complainant's patent. Where the complainant can positively swear to part of the allegations of his bill, and can swear to the residue only on information and belief, the bill should state the first class of facts positively, and the second class on information and belief alone; and the oath should clearly discriminate between the two classes in that behalf. It is not sufficient for the oath to state that the material averments of the bill are true;' nor to state that those allegations are true which render an injunction necessary and proper; because such a form of oath leaves it uncertain which allegations the affiant had in mind. But positive oaths ought to be based on positive knowledge. It is much to be feared that many persons make affidavits to bills and other papers without sufficient reflection upon the statements they contain, or upon the nature of an oath, or upon the pains and penalties of perjury. The fault is largely due to the attorneys who write the papers. The better lawyers will guard the conscience of the client at this point, while the inferior ones are sometimes more apt to mislead than to protect it. Affidavits to bills, and indeed all other affidavits to be used in any civil cause, in any circuit or district court of the United States, may be taken before a commissioner of the circuit court for the district; or before any notary public of either of the States or Territories or of the District of Columbia.*

§ 585. A bill to perpetuate testimony tending to show a particular patent to be void, may be filed and prosecuted in any United States Circuit Court.'

There was once a curious bill filed by a hypothetical infringer against a patentee, stating that the complainant did

1 Sauvinet v. Poupono, 14 Louisiana, 87, 1839.

Hebert v. Joly, 5 Louisiana, 50,

1832.

Revised Statutes, Section 945. 419 Statutes at Large, Ch. 304, p.

206.

5 Revised Statutes, Section 866; New York & Baltimore Coffee Polishing Co. v. New York Coffee Pol ishing Co. 9 Fed. Rep. 578, 1881, 11 Fed. Rep. 813,* 1882.

not infringe the defendant's patent, and praying the court to enter a decree to that effect.' The counsel who argued in behalf of the bill were men of great experience in the law, but their views were overruled by Justice HUNT, who heard the case on the circuit. He held that no such action, as that attempted, was provided for by any statute, or authorized by any principle of equity jurisprudence.

Several bills have lately been filed, and other proceedings instituted, in equity, to restrain patentees from publishing statements favorable to their patents, and unfavorable to alleged infringers thereof, and in other cases to restrain alleged infringers of patents from publishing statements unfavorable to those patents, and favorable to such alleged infringers; and several inharmonious decisions have been made in such cases. But any Federal court that issues an injunction to restrain a person from publishing such a statement, will be exercising, without statutory authority, a power which the constitution prohibits Congress to provide for by statute.' Such a law would plainly abridge the freedom of the press, and if Congress were to make such a law, the Federal courts would have no lawful power to administer it, because it would be clearly unconstitutional; and it is certain that those courts cannot lawfully exercise the double function of making and administering an unconstitutional law.

§ 586. Amendments to bills may be made as a matter of course, and without costs, at any time before a copy has been taken out of the clerk's office; and may be made as of course with costs, after a copy has been taken out, and before any plea, answer, or demurrer has been filed. After an answer or plea, or demurrer is put in, and before replica

1 Celluloid Mfg. Co. v. Vulcanite Co. 13 Blatch. 375, 1876.

Chase v. Tuttle, 27 Fed. Rep. 110, 1886; Tuttle v. Matthews, 28 Fed. Rep. 98, 1886; Kidd v. Horry, 28 Fed. Rep. 773, 1886; Ide v. Engine Co. 31 Fed. Rep. 901, 1887;

Curran v. Car. Co. 32 Fed. Rep. 835, 1887; Emack v. Kane, 34 Fed. Rep. 46, 1888.

3 First Amendment to the Constitution.

4

Equity Rule 28.

2

tion, the complainant may, upon motion, without notice, obtain an order from any judge of the court to amend his bill on or before the next succeeding rule day, upon payment of costs, or without payment of costs, as the judge may in his discretion direct.' After a replication is filed, and before the hearing of the case, the bill cannot be amended except upon a special order of the judge of the court, upon motion or petition, after due notice to the other party, and upon proof by affidavit that the application is not made for the purpose of vexation or delay, and that the matter of the proposed amendment is material, and could not with reasonable diligence have sooner been introduced into the bill, and upon the plaintiff submitting to such other terms as may be imposed by the judge for speeding the cause. Amendments applied for at or after the hearing of a case are not regulated by the Equity Rules, but are allowed or refused, according to the sound discretion of the court. But that discretion is governed by precedents, and those precedents indicate that amendments, at or after the hearing, will be allowed only where the bill is found to be defective in proper parties, or in its prayer for relief, or in the omission or misstatement of some fact or circumstance connected with the substance of the case, but not forming the substance itself, or where it is necessary for the complainant to take issue with new matter in the answer. Where a litigation has been conducted precisely as it would have been if the proper amendment had been made before. any plea, answer, or demurrer was filed, the court will allow that amendment to be filed even after the hearing, and thus make the pleadings conform to what the course of the litigation assumed them to be."

1 Equity Rule 29.

2 Equity Rule 29.

3 Neale v. Neales, 9 Wallace, 9, 1869.

4 Shields v. Barrow, 17 Howard, 144, 1854.

5 The Tremolo Patent, 23 Wallace, 527, 1874; Vattier e. Hinde, 7 Peters, 273, 1833; Duponti e. Mussy, 4 Washington, 128, 1821; New York Sugar Co. v. Sugar Co. 20 Fed. Rep. 505, 1884.

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