Blakeslee & Brown, of Los Angeles, Cal., for plaintiff.

William L. Connor, of Los Angeles, Cal., for defendants.

JAMES, District Judge. This is a suit in equity in which infringement of letters patent No. 60,878 is claimed against the defendants. Plaintiff alleged in the will of complaint that the patentees were Pardee, Dewire, and Suporter, who were original and joint inventors, and who thereafter assigned their patent right to the plaintiff. The defendants answered; the answer in effect being a general denial of all of the allegations of the bill of complaint, except that it is particularly pleaded that, in view of the state of the prior art, patented and unpatented, there is no novelty in the invention described in plaintiff's patent. fendants prepared a set of interrogatories which they have propounded to the plaintiff, and the plaintiff has objected to these interrogatories on the several grounds stated in written objections, which were filed and afterwards presented in open court.

sa.

De

There are constantly being presented, under objections urged by opposite parties, questions as to the extent the plaintiff, on the one side, can go in eliciting facts by interrogatories of his opponent, and vice verIt has been insisted, and by several of the federal courts held, that under equity rule 58 a plaintiff can interrogate only as to matters of fact within the knowledge of the defendant which will support the issue tendered by the bill of complaint, and that a defendant can interrogate only as to facts material in support of his defense. It is plainly to be observed that the rule does not in terms or necessary effect so limit the parties. It provides that plaintiff and defendant may file interrogatories "for the discovery by the opposite party of facts and documents material to the support or defense of the cause." Careful consideration was given to the language of this rule and its practical meaning in Perkins Oil Well Cementing Co. v. Owen (D. C.) 293 F.

759, and the conclusion was there reached that a defendant might interrogate as to the facts supporting the plaintiff's cause of action, and that the plaintiff could likewise inquire into the facts upon which the defense as made by the answer was founded.

This conclusion is one that answers the test that justice shall be attained as speedily as possible, and that issues which are only

not be permitted to engross the time of the courts. The day is no longer here when the courtroom will furnish the arena for an exhibition of purely strategic moves on the legal chessboard. When a case reaches the stage for trial, the parties must be prepared to disclose the true state of the real issues

as to which there will be a conflict of evi

dence. The whole effort of the court, with the assistance of counsel and witnesses, must be to ascertain the truth as to such issues

who may

alone. A position of counsel or a party, know that he cannot dispute a fact alleged, that he will require his opponent to take the time to establish before the court such fact, is entitled to no sort of approval. If such a practice is tolerated, in view of the congested condition of the calendars of the court, a necessary result will be that references to masters must be more largely resorted to, a practice not to be desired, and one which the Supreme Court Rules declare should be the exception. The condition of the court's business in this district is now such as makes this observation particularly pertinent, and it is especially applicable to patent litigation, which, notwithstanding the best efforts of counsel, is in the trial thereof much protracted.

[1] But there should be quite clear limits put to the scope of interrogatories which a party may propound to his opponent, admitting the allowance of the liberal rule stated. The interrogatories should not go to the length of examination and cross-examination on evidentiary matter, nor yet be

come a

mere curious excursion, to find whether the party interrogated may possibly know something which will aid a cause or the defense to it. Interrogatories should be of such a character as that, by examining the issues proposed or made up, it can be seen that the answers required will reasonably state or illustrate a material fact. Interrogatories requiring a plaintiff, for instance, to state whether he knows of any prior use antedating his patent, asked in the hope that the defendant may discover valuable defense matter, belong to this class, and are improper.

If a defendant in his answer to the bill of complaint presents general issues only, and then interrogates as to matters which do not appear to be necessarily connected with his defense, he cannot complain if his interrogatories are disallowed; for the court will indulge in no assumption that there will be other evidence not yet disclosed which will show the pertinency of the desired answers.

Where the state of the art is pleaded against invention in the answer, it has been considered proper for the defendant to declare seasonably before trial what examples of such art he will rely upon.

[2, 3] The assignment of a patent, alleged in a complaint to have been made to a plaintiff, does not authorize a defendant, under a mere denial of that assignment, to interrogate plaintiff as to whether at any other time he has made any other assignment. It is easy for the parties to present sufficient

rules which I have outlined, the plaintiff should answer all of the interrogatories from and including No. 1 to and including No. 24; also interrogatories 30, 32, 33, 46, 47, 48, 49, 54, 58, 59, 60, 61, and 62. As to the remaining interrogatories, the objections of the plaintiff are sustained.

UNITED STATES v. HINSON et ux.

1925.) No. 2176.

Husband and wife107-Coverture not ground for plea in abatement to criminal prosecution.

work of a plaintiff's case to be exhibited to a defendant before the defendant has indicated what his defense field of prior invention, use, or particular anticipatory devices. will be.

[4] Likewise as to plaintiff's interrogatories covering defense matter. It has been stated at different arguments on objections to interrogatories that answers made to such

questions should be sealed and deposited

with the clerk until both parties have committed themselves as to those facts; this

upon the theory that to do differently is to encourage the production of false evidence. The reason is a good one, if the court is bound to assume, or ought to assume, that a perjured case will be brought in when the opportunity is open. That assumption is not one that has judicial sanction. Such an order was made by me in one case, and I am cited to Hillman Mfg. Co. v. Alvin C. Garside et al. (no written opinion) as a case where the practice was established. I find by examining the files in that suit that the order for sealing the interrogatories was made on the written stipulation of counsel and not of the court's motion. Where that kind of an order is made, I think it should be entered by consent.

Coming, now, to the interrogatories submitted in this case, and applying the general

A plea of coverture does not state cause of

an offense against the United States charged to have been committed jointly by husband and wife.

Criminal prosecution by the United States against Joe Hinson and Luella Hinson. On demurrer to plea in abatement. Demurrer sustained.

W. M. Gober, U. S. Atty., of Tampa, Fla., and Maynard Ramsey, Asst. U. S. Atty., of Jacksonville, Fla.

A. G. Hartridge and Richard Stillman, both of Jacksonville, Fla., for defendants.

CALL, District Judge. At common law it is probable that the plea of coverture would state a cause of abatement, on account of the unity of husband and wife; the husband being the responsible party for joint crimes committed by husband and wife. And this rule would prevail in states adopting the common law and having made no change by statute. As I understand it, there is no common law prevailing in the United States, and since the adoption of the Nineteenth Amendment to the Constitution, it seems to me that the rule of common law has no application to crimes committed against the United States.

The demurrer to the said plea will therefore be sustained.

LARNER et al.

(Court of Appeals of District of Columbia. Submitted December 8, 1924. Decided January 5, 1925.)

No. 4128.

1. Wills 108-Void where statutory requirements have not been complied with.

A will is void, where formalities of execution, prescribed by Code, § 1626, have not been complied with.

2. Wills 488-Construed according to terms, without aid from extrinsic evidence, unless terms are ambiguous.

Will should be interpreted according to its terms, notwithstanding motives by which testator was actuated, and extrinsic evidence is not admissible, unless terms are ambiguous.

3. Wills 489 (2), 514-Bequest held to association popularly known by name given. Bequest to "the Seventh Georgia Regiment of Savannah, Georgia," with "Savannah" deleted, held bequest to association popularly known as the "Seventh Georgia Regiment of Georgia," though it was not a Savannah institution, and even if extrinsic evidence showed that testatrix intended all bequests to go to Savannah institutions, since such extrinsic evidence, in view of unambiguous terms of will, could not be

considered.

ROBB, Associate Justice. Appeal from a decree in the Supreme Court of the District of Columbia, construing a provision in the fourth paragraph of the will of Maria F. McCalla, late of the District of Columbia, the will bearing date of September 1, 1905. This paragraph of the will gives the residue of the estate to the appellee John B. Larner

"in trust to sell and reduce my entire estate to cash as soon after my decease as practicable without sacrifice and to divide the same, together with the proceeds of sale of the property in Savannah, Georgia, known as trust lot lettered 'A,' the title to which is now held by the said John B. Larner, trustee, to be sold and the proceeds thereof disposed of in accordance with such directions as I might by my last will and testament order or direct, after paying all expenses incidental to the execution of this trust, including compensation to the trustee as hereinafter provided, into five (5) equal parts, and to pay:

"One-fifth (5) thereof unto the Union Society of Savannah, Georgia (an orphans' home);

"One-fifth (5) to the Georgia Infirmary (a hospital for negroes) of Savannah, Georgia;

"One-fifth (5) to the Savannah Hospi

tal;

"One-fifth (%) to the Savannah Guards,

and

"One-fifth (5) to the Seventh Georgia Regiment of (Savannah) Georgia. "M. F. McC."

The word "Savannah," in the fifth item of this paragraph, was canceled before the will was executed, and the testatrix initialed the deletion.

On April 10, 1912, the testatrix executed a codicil, in which she ratified and confirmed her will "in every particular after a careful reading and examination thereof." In this codicil she stated that almost all her estate came from her cousin, Julia E. Bain, and that there was an oral understanding between her and Mrs. Bain that testatrix should dispose of what remained at her death "in the manner that I have done by my will of September 1st, 1905; and in making the said disposition of my estate I have acted in strict accordance with the terms of the gift from my said cousin, to whom I gave my promise at the time of the execution of her will."

The court below held that the words "Seventh Georgia Regiment of Georgia" did not designate the appellant, but did designate

a Georgia corporation known as the First Volunteer Regiment of Georgia.

Over the objection and exception of appellant, the court admitted evidence to the following effect:

Mrs. Bain, from whom testatrix derived this property, for many years resided in the District of Columbia. In her youth, however, she may have lived in Georgia, where the property was located. Mr. Larner, who represented Miss McCalla and drew her will, stated that both Mrs. Bain and Miss McCalla "had very strong ties in the South and were constantly talking about their interest and their feelings in that direction, though Miss McCalla was not born in the South." Mr. Larner settled Mrs. Bain's estate. She had made a will in favor of Miss McCalla, upon the distinct understanding that Miss McCalla should give what was left at her death "to certain interests in the South." In the spring of 1905 Miss McCalla and Mr. Larner were in Savannah, and Miss McCalla executed a deed conveying her property to him in trust for disposition by him as she should direct in her will. Mr. Cunningham, a Savannah lawyer, prepared the deed. Mr. Larner and Miss McCalla conferred with him at his office "as to what institutions in Savannah should receive the proceeds of this property, and he named over a number of institutions in Savannah that he thought would be proper for her to use in her will, and he told her about them and she approved them, and my present recollection-I cannot be absolutely certain about it—but I think my recollection would be this: That Mr. Cunningham said that he would have to get the legal titles or names of these various organizations, and he would send them to us later. Now, my recollection is that he did send such a list, and from that list I made up the names of these beneficiaries and put them in the will— you will see by an examination of the will there I have them all one after the other, and the last one is this Seventh Regiment of Georgia, of Savannah, Ga. It was evidently written in the first will-now my recollection is that, upon examining the paper more carefully that had been sent by Mr. Cunningham, I noticed that the word 'Savannah' was not in the corporate title of that organization, and rather than to rewrite the whole will, I simply deleted the word 'Savannah,' or had her draw her pen through it, and had her put her initials by the side of it, to indicate that it was done wtih her knowledge and consent."

Mr. Larner had not been able to find the paper referred to, and a search in the office of Mr. Cunningham, who had since deceased, failed to disclose a copy of the same. There was no evidence tending to show that Miss McCalla ever mentioned the First Volunteer Regiment of Georgia, or that she even knew of its existence.

It is conceded that the Seventh Georgia Regiment was one of the most famous regiments in the Confederate Army during the Civil War, it having taken part in every important engagement in which the Army of Northern Virginia participated from first Manassas to Appomatox. It lost over 500 officers and men during this time, and in an article appearing in the Atlanta Constitution on July 2, 1885, was described as "one of the most famous regiments in the Confederate service, and has figured conspicuously in the literature of the war, especially in the many stories that have been written about the battle of Manassas." On the anniversary of the first battle of Manassas, July 21, 1885, the survivors of this regiment met at Atlanta, Ga., and formed a "permanent association" of survivors. This association has since continued and has held annual reunions. The newspapers of Washington, D. C., referred to these reunions as of the "Seventh Georgia Regiment," or of the "Survivors of the Seventh Georgia Regiment." The evidence leaves no room for doubt that this association, although composed merely of the survivors of the Seventh Georgia Regiment, was widely and popularly known as the "Seventh Georgia Regiment," and that from the time of its organization in 1885 no other association was known by that name.

In the opinion filed in this case the learned trial justice said: "Beyond the words of the will, not a single circumstance has been proved to indicate that the Association of Survivors of the Seventh Georgia Regiment is named in the will." The court further said: "If it is a sound conclusion that the declarations of the testatrix are admissible, then, considering the words of the will, the codicil, her promise testified to by Mr. Larner, and the other circumstances established by the evidence, it can be said beyond a reasonable doubt that she was speaking of a Savannah institution, and, there being but one institution in Savannah to which the words of the will can apply, namely, the First Volunteer Regiment of Georgia, it must be decided that that corporation is the legatee named.”