far allowed as to permit an equitable defense, or an equitable set off, to be pleaded in an action at common law. The pleading must show the jurisdiction, including the defendant's residence. It is the safer practice to plead an objection to the jurisdiction by a special plea in abatement, no matter what the State statute may be.10 7 Doe v. Roe, 31 Fed. R. 97; Bennett v. Butterworth, 11 How. 669; Montijo v. Owen, 14 Blatchf. 324; Parsons v. Denis, 7 Fed. R. 317; Buller v. Slidell, 43 Fed. R. 116; Schoolfield v. Rhodes, 82 Fed. R. 153; Davis v. Davis (C. C. A.), 72 Fed. R. 81; Young v. Mahoning County, 51 Fed. R. 585, 590. See N. Pac. R. Co. v. Paine, 119 U. S. 561; Wilcox & Gibbs Guano Co. v. Phenix Ins. Co., 61 Fed. R. 199. The misconduct of arbitrators not apparent upon the face of the award, and not affecting their jurisdiction, cannot be pleaded to an action at law upon the award. Hartford F. Ins. Co. v. Bonner M. Co., 44 Fed. R. 151, 156. Where the plaintiff had an equitable defense to a release pleaded by the defendant, the trial judge postponed the trial in order to allow the plaintiff to bring an independent suit in equity to set aside the release. Vandervelden v. Chicago & N. W. Ry. Co., 61 Fed. R. 54. A State statute allowing a champertous agreement to be pleaded in abatement to an action was not followed by a Federal court. Byrne v. Kansas City, Ft. S. & M. R. Co., 55 Fed. R. 44. It has been held that in actions at law in the Federal courts plaintiff cannot file interrogatories to be answered by defendant. Tabor v. Indianapolis Journal Newspaper Co., 66 Fed. R. 423. It has been held that annexing to a complaint, as an exhibit, a copy of the contract sued upon, with a reference to the same in the body of the pleading, is not equivalent to positive allegations in the complaint of the terms of the contract according to their legal effect or in hæc verba. Penrose v. Pac. Mut. L. I. Co. (D. Montana), 66 Fed. R. 253. And that a suit upon a special contract not executed must be on a count setting out the special contract; but when the special contract has been executed the common counts are sufficient. Chesapeake & O. C. Co. v. Knapp, 9 Peters, 541, 563; Dawes & Co. v. Peebles' Sons Co., 6 Fed. R. 856, 858. As to what defenses may be proved under the general issue in assumpsit under the common counts, see Dawes & Co. v. Peebles' Sons Co., 6 Fed. R. 856, 859. 8 Scott v. Armstrong, 146 U. S. 499. Contra as to a common-law set-off, infra, note 48. 9 Laskey v. Newton, 50 Fed. R. 634. 10 Jones v. Rowley, 73 Fed. R. 286. It has been held at circuit, that, no matter what the State practice may be, a denial of allegations of jurisdictional facts in the plaintiff's declaration or other pleading at law can only be made by a special plea to the jurisdiction, and is waived by a general denial or by a plea to the merits; although the court may of its own motion institute at any time an inquiry into the truth of such facts. Imperial Ref. Co. v. Wyman, 38 Fed. R. 574; National Masonic Ass'n v. Sparks, 83 Fed. R. 225. See Hartog v. Memory, 116 U. S. 588; Foster v. Cleveland, C., C. & St. L. Ry. Co., 56 Fed. R. 434. Contra, Ehrman v. Teutonia Ins. Co., 1 Fed. R. 471; Draper v. Springport, 15 Fed. R. 328. See Rubel v. Beaver Falls C. Co., 22 Fed. R. 282; Deputron v. Young, 134 U. S. 241, 251; Roberts v. Lewis, 144 U. S. 653; Dexter v. Say 15 In the following particulars the practice at common law in civil cases in the Circuit and District Courts of the United States is regulated by Federal statutes: writs and process," service by publication or without the district,12 pleading in actions for the infringement of patents 13 and copyrights," amendments, provisional remedies,16 abatement and revivor," consolidation of suits, 18 evidence, testimony and depositions," selection of juries,20 trials,21 motions for new trials,22 judgments,23 correction of judgments," costs," executions and proceedings supplementary thereto, contempts," bills of exceptions,28 and writs of error.29 26 The Revised Statutes provide as follows concerning pleadings in actions for the infringement of patents: "Damages for the infringement of a patent may be recovered by an action on the case, in the name of the party interested, either as a patentee, assignee or grantee. And whenever in any such action a verdict is rendered for the plaintiff, the court may enter judgment thereon, for any sum above the amount found by the verdict as the actual damages sustained, according to the circumstances of the case, not exceeding three times the amount of such verdict, together with the costs.30 "In any action for infringement the defendant may plead ward, 51 Fed. R. 729, 732; Greene v. Henning v. W. U. Tel. Co., 40 Fed. R. Tacoma, 53 Fed. R. 562. 658. 20 U.S. R. S., $$ 800, 882; infra, § 374. held that a part owner of the patent 21 Infra, § 374. 22 Infra, § 376. 23 Infra, § 378. 24 Infra, § 379. 25 Supra, ch. XXV. But see Huntress v. Epsom, 15 Fed. R. 732; New Hampshire L. Co. v. Tilton, 29 Fed. R. 764. As to security for costs, see cannot sue at common law for an infringement unless the other owners consent to join with him as plaintiffs; and that in case of their refusal he cannot make them defendants. Van Orden v. Nashville, 67 Fed. R. 331. The rule in equity is otherwise. Supra, § 42. the general issue, and having given notice in writing to the plaintiff or his attorney, thirty days before, may prove on trial any one or more of the following special matters: "First. That for the purpose of deceiving the public the description and specification filed by the patentee in the Patent Office was made to contain less than the whole truth relative to his invention or discovery, or more than is necessary to produce the desired effect; or, "Second. That he had surreptitiously or unjustly obtained the patent for that which was in fact invented by another, who was using reasonable diligence in adapting and perfecting the same; or, "Third. That it had been patented or described in some printed publication prior to his supposed invention or discovery thereof; or, "Fourth. That he was not the original and first inventor or discoverer of any material and substantial part of the thing patented; or, “Fifth. That it had been in public use or on sale in this country for more than two years before his application for a patent, or had been abandoned to the public. "And in notices as to proof of previous invention, knowledge or use of the thing patented, the defendant shall state the names of patentees and the dates of their patents, and when granted, and the names and residences of the persons alleged to have invented or to have had the prior knowledge of the thing patented, and where and by whom it had been used; and if any one or more of the special matters alleged shall be found for the defendant, judgment shall be rendered for him with And the like defenses may be pleaded in any suit in equity for relief against an alleged infringement; and proofs of the same may be given upon like notice in the answer of the defendant, and with the like effect." 31 costs. 31 U. S. R. S., § 4920. See supra, § 145. A defendant may plead the general issue and also a special plea that the combination covered by the patent was not an invention, and a further plea, that the invention was not patentable. Brickill v. Hartford, 57 Fed. R. 216. Defenses which have been raised by demurrer and overruled cannot ordinarily be made part of the answer without leave of the court. Ibid.; McClintick v. Johnson, 1 McLean, 414. But in the District of Connecticut the court allowed such defenses to be set up again by plea, since it was uncertain whether, un It has been held in the Sixth Circuit that the pleadings of both the plaintiff and the defendant in such an action must conform to the rules of pleadings in actions on the case at common law.32 The Revised Statutes provide that "in all actions arising under the laws respecting copyrights, the defendant may plead the general issue, and give the special matter in evidence." 33 Exemptions from service of process have been discussed in the chapter on subpoenas. 34 der the State rule of pleading, an assignment of error in the ruling upon the demurrer was sufficient, when the defendant did not stand upon his demurrer, to bring the points before the court of review. Brickill v. Hartford, 57 Fed. R. 216. Want of patentability is a defense to such an action, although not pleaded by the defendant. May v. Juneau County, 137 U. S. 408. Evidence of prior use and knowledge of the thing patented will not be admitted, although pleaded, unless the prescribed notice has been given; provided a proper objection upon this ground is made. Blanchard v. Putnam, 8 Wall. 420. The state of the art can be shown without notice. Vance v. Campbell, 1 Black, 427; Brown v. Piper, 91 U. S. 37. It has been held that a witness may be asked whether the defendant's machine is similar to the model of the plaintiff's patented machine, although no notice of such testimony has been given. Evans v. Hettick, 7 Wheat. 453, 469. Evidence stated in a notice to be proposed for one purpose cannot be used for another. Pennock v. Dialogue, 4 Wash. 538; s. c., 2 Pet. 1. The fourth and fifth defenses named are distinct from each other, and if the defendant relies on both, he must give notice accordingly. Meyers v. Busby, 32 Fed. R. 670. The notice is not defective for failure to state the particular place within a named city at which the defendant proposes to prove the previous use of a patent. Wise v. Allis, 9 Wall. 737. A notice is not a pleading, and instead of being included in the answer should be served upon the plaintiff. Cottier v. Stimson, 20 Fed. R. 906. See also 10 Saw. 212; Henry v. U. S., 22 Ct. Cl. 75. It is a better practice to file the notice with the pleadings after it has been served. Teese v. Huntingdon, 23 How. 2, 10. A plea stricken out by the court is not a sufficient legal notice. Silsby v. Foote, 1 Blatchf. 445; s. C., 14 How. 218. The defendant may also plead his defense specially if he so desires. Cottier v. Stimson, 20 Fed. R. 906, 907; Evans v. Eaton, 3 Wheat. 454; Grant v. Raymond, 6 Pet. 218; Phillips v. Combstock, 4 McLean, 525; Day v. N. E. C. S. Co., 3 Blatchf. 179. In such a case it seems that no notice may be given. Cottier v. Stimson, 20 Fed. R. 906, 907; Evans v. Eaton, 3 Wheat. 454; Grant v. Raymond, 6 Pet. 218; Phillips v. Combstock, 4 McLean, 525; Day v. N. E. C. S. Co., 3 Blatchf. 179. No demurrer lies to a notice. Henry v. U. S., 22 Ct. Cl. 75. A defect in the notice may be remedied by a second notice without leave of the court. Teese v. Huntingdon, 23 How. 2, 10. 32 Myers v. Cunningham, 44 Fed. R. 346, per Ricks, J.; Moy v. Mercer County, 30 Fed. R. 246; Marvin v. C. Aultman & Co., 46 Fed. R. 338, 339; Walker on Patents, § 442. Contra, Cottier v. Stimson, 20 Fed. R. 906, 907. 33 U. S. R. S., § 4969. Supra, § 98. 34 36 It has been held that in the following cases the Circuit and District Courts will in civil actions at common law follow the statutes of the respective States where they are held: form of writ,35 indorsement of writ, indorsement of summons,37 right of assignee to sue in his own name,38 personal service of writ and process on individuals 9 and on corporations,40 at least if domestic corporations," joinder of causes of action,42 joinder of parties, verification of pleading," time," and manner 46 of service of pleading and amendment of pleading," set off of cause of action at common law," interpleader," notice of trial or of 35 Brown v. C. & O. C. Co., 4 Fed. R. 770. See Baltimore & O. R. Co. v. Hamilton, 16 Fed. R. 181. It has been held that a suit in the United States Circuit Court for the penalty provided by the Act of 1885, chapter 164, section 3, for violation of the provisions of that act relating to alien contracts for labor, may be properly begun by capias in accordance with the State law. U. S. v. Banister, 70 Fed. R. 44. But see Shepard v. Adams, 168 U. S. 618; infra, § 361. 36 Brown v. Pond, 5 Fed. R. 31, 37. But see § 361. 37 U. S. v. Rose, 14 Fed. R. 681. 38 Edmunds v. Illinois C. R. Co., 80 Fed. R. 78, where the cause of action arose under a Federal statute, the Interstate Commerce Act. Where there is no State statute, the suit must be brought in the name of the assignor. Nederland L. I. Co. v. Hall, 84 Fed. R. 278. 39 Shampeau v. Connecticut R. L. Co., 37 Fed. R. 771; Wilson v. Fine, 38 Fed. R. 789; Amy v. Watertown, 130 U. S. 301. See supra, §§ 93-98. So held as to the form of a return of service. Trimble v. Erie El. M. Co., 89 Fed. R. 51; Wilson v. Hurst, Peters C. C. 441; U. S. v. Lotridge, 1 McLean, 246. 40 In re Louisville Underwriters, 134 U. S. 488, 493; Miller's Adm'r v. Norfolk & W. R. Co., 41 Fed. R. 431; McCormick H. Mach. Co. v. Walth ers, 134 U. S. 41; Société Foncière v. Milliken, 135 U. S. 304. See supra, § 17. 41 Amy v. Watertown, 130 U. S. 30. 42 Castro v. De Uriarte, 12 Fed. R. 250. But see O'Connell v. Reed (C. C. A.), 56 Fed. R. 531; Bowden v. Burnham (C. C. A.), 59 Fed. R. 752; Holt v. Bergevin, 60 Fed. R. 1. 43 Perry v. Mechanics' Mut. Ins. Co., 11 Fed. R. 478; Delaware Co. Com'rs v. Diebold S. Co., 133 U. S. 473, 488. Non-joinder of husband in action by wife, although the woman is an alien. Morning Journal Ass'n v. Smith (C. C. A.), 56 Fed. R. 141. 44 West v. Home Ins. Co., 18 Fed. R. 622; Cottier v. Stimson, 18 Fed. R. 689. 45 Ricard v. Inhabitants New Providence, 5 Fed. R. 433. But not necessarily as to the return day. Ewing v. Burnham, 74 Fed. R. 384. 46 Wilson v. Fine, 38 Fed. R. 789. 47 Rosenbach v. Dreyfuss, 1 Fed. R. 391. But see U. S. R. S., § 954; Erstein v. Rothschild, 22 Fed. R. 61; and infra, § 361. 48 Partridge v. Felix Mut. L. I. Co., 15 Wall. 573; Dushane v. Benedict, 120 U. S. 630; Charnley v. Sibley (C. C. A.), 73 Fed. R. 980. But not of equitable set-off. Scott v. Armstrong, 146 U. S. 499. 49 Harris v. Hess, 10 Fed. R. 263. In the absence of statute, interpleader or the bringing in of a new party |