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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 verba Penrose v. Pac. Mut. L. I. Co. v. Butterworth, 11 How. 669; Montijo (D. Montana),66 Fed. R. 253. And that v. Owen, 14 Blatchf. 324; Parsons v. a suit upon a special contract not Denis, 7 Fed. R. 317; Buller v. Slidell, executed must be on a count setting 43 Fed. R. 116; Schoolfield v. Rhodes, out the special contract; but when 82 Fed. R. 153; Davis v. Davis (C. C. the special contract has been exeA.), 72 Fed. R. 81; Young v. Mahon- cuted the common counts are suffiing County, 51 Fed. R. 585, 590. See cient. Chesapeake & 0. C. Co. v. N. Pac. R. Co. v. Paine, 119 U. S. 561; Knapp, 9 Peters, 541, 563; Dawes & Wilcox & Gibbs Guano Co. v. Phenix Co. v. Peebles' Sons Co., 6 Fed. R. 856, Ins. Co., 61 Fed. R. 199. The mis- 858. As to what defenses may be conduct of arbitrators not apparent proved under the general issue in upon the face of the award, and not assumpsit under the common counts, affecting their jurisdiction, cannot see Dawes & Co. v. Peebles' Sons Co., be pleaded to an actio at law upon 6 Fed. 856, 859. the award. Hartford F. Ins. Co. v. 8 Scott v. Armstrong, 146 U. S. 499. Bonner M. Co., 44 Fed. R. 151, 156. Contra as to a common-law set-off, Where the plaintiff had an equitable infra, note 48. defense to a release pleaded by the 9 Laskey v. Newton, 50 Fed. R. 634. defendant, the trial judge postponed 10 Jones v. Rowley, 73 Fed. R. 286. the trial in order to allow the plaint. It has been held at circuit, that, no iff to bring an independent suit in matter what the State practice may equity to set aside the release. Van- be, a denial of allegations of jurisdervelden v. Chicago & N. W. Ry. dictional facts in the plaintiff's decCo., 61 Fed. R. 54. A State statute laration or other pleading at law allowing a champertous agreement can only be made by a special plea to be pleaded in abatement to an to the jurisdiction, and is waived by action was not followed by a Fed- a general denial or by a plea to the eral court. Byrne v. Kansas City, Ft. merits; although the court may of S. & M. R. Co., 55 Fed. R. 44. It has its own motion institute at any time been held that in actions at law in an inquiry into the truth of such the Federal courts plaintiff cannot facts. Imperial Ref. Co. v. Wyman, file interrogatories to be answered 38 Fed. R. 574; National Masonio by defendant. Tabor v. Indianapolis Ass'n v. Sparks, 83 Fed. R. 225. See Journal Newspaper Co., 66 Fed. R. Hartog v. Memory, 116 U. S. 588; 423. It has been held that annexing Foster v. Cleveland, C., C. & St. L. to a complaint, as an exbibit, a copy Ry. Co., 56 Fed. R. 434. Contra, of the contract sued upon, with a Ehrman v. Teutonia Ins. Co., 1 Fed. reference to the same in the body of R. 471; Draper •. Springport, 15 Fed. the pleading, is not equivalent to R. 328. See Rubel v. Beaver Falls positive allegations in the complaint C. Co., 22 Fed. R. 282; Deputron v. of the terms of the contract accord- Young, 134 U. S. 241, 251; Roberts v. ing to their legal effect or in hæc Lewis, 144 U. S. 653; Dexter v. Say.
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, 5 provisional remedies, 18 abatement and revivor,17 consolidation of suits, 18 evidence, testimony and depositions,' selection of juries,20 trials,21 motions for new trials,22 judgments,23 correction of judgments,44 costs,25 executions and proceedings supplementary thereto,28 contempts,27 bills of exceptions,28 and writs of error.29
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.90
“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. 11 Infra, $ 361. But see Stewart v. 26 Infra, & 380. Justices of St. Clair Co. Court, 47 27 Infra, &$ 341-346. Fed. R. 482, 484.
28 Infra, 8 377. 12 Supra, S 97.
29 Richmond & D. R. Co. v. McKee 13 U. S. R. S., 4920.
(C. C. A.), 50 Fed. R. 906; McClellan 14 U. S. R. S., $ 4969.
v. Pyeatt (C. C. A.), 50 Fed. R. 686; 15 U. S. R. S., $ 954; infra, 8 361. Kentucky L. & A. Ins. Co. v. Hamil16 Infra, SS 369, 370.
ton (C. C. A.), 63 Fed. R. 93; infra, 17 Infra, $ 373.
chapter on Writs of Error and Ap18 Infra, S 371.
peals. 19 Infra, & 372.
30 U. S. R. S., & 4919. It has been 20 U.S. R. S., SS 800, 882; infra, 8 374. held that a part owner of the patent 21 Infra, S 374.
cannot sue at common law for an 22 Infra, $ 376.
infringement unless the other own23 Infra, $ 378.
ers consent to join with him as 24 Infra, $ 379.
plaintiffs; and that in case of their 25 Supra, ch. XXV. But see Hunt- refusal he cannot make them defendress v. Epsom, 15 Fed. R. 732; New ants. Van Orden v. Nashville, 67 Hampshire L Co. v. Tilton, 29 Fed. Fed. R. 331. The rule in equity is R. 764. As to security for costs, see 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 relatire 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 costs. 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
31 U. S. R. S., § 4920. See supra, been raised by demurrer and over$ 145. A defendant may plead the ruled cannot ordinarily be made part general issue and also a special plea of the answer without leave of the that the combination covered by the court. Ibid.; McClintick v. Johnson, patent was not an invention, and a 1 McLean, 414. But in the District of further plea, that the invention was Connecticut the court allowed such not patentable. Brickill v. Hartford, defenses to be set up again by plea, 57 Fed. R. 216. Defenses which have 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 subpænas.
der the State rule of pleading, an as Allis, 9 Wall. 737. A notice is not a signment of error in the ruling upon pleading, and instead of being inthe demurrer was sufficient, when cluded in the answer should be serred the defendant did not stand upon upon the plaintiff. Cottier v. Stimhis demurrer, to bring the points be- son, 20 Fed. R. 906. See also 10 Saw. fore the court of review. Brickill v. 212; Henry v. U. S., 22 Ct. Cl. 75. It Hartford, 57 Fed. R. 216. Want of pat- is a better practice to file the notice entability is a defense to such an ac. with the pleadings after it has been tion, although not pleaded by the de served. Teese v. Huntingdon, 23 How. fendant. May v. Juneau County, 137 2, 10. A plea stricken out by the U. S. 408. Evidence of prior use and court is not a sufficient legal notice. knowledge of the thing patented will Silsby v. Foote, 1 Blatchf. 445; s. C., not be admitted, although pleaded, 14 How. 218. The defendant may unless the prescribed notice has been also plead his defense specially if he given; provided a proper objection so desires. Cottier v. Stimson, 20 Fed. upon this ground is made. Blanch- R. 906. 907; Evans v. Eaton, 3 Wheat. ard v. Putnam, 8 Wall. 420. The 454; Grant v. Raymond, 6 Pet. 218; state of the art can be shown with- Phillips v. Combstock, 4 McLean, 525; out notice. Vance v. Campbell, 1 Day v. N. E. C. S. Co., 3 Blatchf. 179. Black, 427; Brown v. Piper, 91 U. S. In such a case it seems that no notice 37. It has been held that a witness may be given. Cottier v. Stimson, may be asked whether the defend- 20 Fed. R. 906, 907; Evans v. Eaton, ant's machine is similar to the model 3 Wheat. 454; Grant v. Raymond, 6 of the plaintiff's patented machine, Pet. 218; Phillips v. Combstock, 4 although no notice of such testimony McLean, 525; Day v. N. E. C. S. Co., has been given. Evans v. Hettick, 7 3 Blatchf. 179. No demurrer lies to Wheat, 453, 469. Evidence stated in a notice. Henry v. U. S., 22 Ct. CI. a notice to be proposed for one pur- 75. A defect in the notice may be pose cannot be used for another. remedied by a second notice without Pennock v. Dialogue, 4 Wash. 538; leave of the court. Teese v. Hunt& C., 2 Pet. 1. The fourth and fifth ingdon, 23 How. 2, 10. defenses named are distinct from 32 Myers v. Cunningham, 44 Fed. R. each other, and if the defendant re 346, per Ricks, J.; Moy v. Mercer lies on both, he must give notice ac- County, 30 Fed. R. 246; Marvin v. C. cordingly. Meyers v. Busby, 32 Fed. Aultman & Co., 46 Fed. R. 338, 339; R. 670. The notice is not defective Walker on Patents, $ 442. Contra, for failure to state the particular Cottier v. Stimson, 20 Fed. R. 906, 907. place within a named city at which 33 U. S. R. S., $ 4969. the defendant proposes to prove the 34 Supra, S 98. previous use of a patent. Wise v.
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,95 indorsement of writ,36 indorsement of summons, right of assignee to sue in his own name,38 personal service of writ and process on individuals 39 and on corporations,40 at least if domestic corporations,“ joinder of causes of action,“ joinder of parties,43 verification of pleading, 44 time, 45 and manper 46 of serv. ice of pleading and amendment of pleading,47 set off of cause of action at common law,48 interpleader,“notice of trial or of
35 Brown v. C. & O. C. Co., 4 Fed. ers, 134 U. S. 41; Société Foncière v. R. 770. See Baltimore & O. R. Co. v. Milliken, 135 U. S. 304. See supra, Hamilton, 16 Fed. R. 181. It has 8 17. been held that a suit in the United 41 Amy v. Watertown, 130 U. S. 30. States Circuit Court for the penalty 42 Castro v. De Uriarte, 12 Fed. R. provided by the Act of 1885, chapter 250. But see O'Connell v. Reed (C. 164, section 3, for violation of the pro- C. A.), 56 Fed. R. 531; Bowden v. visions of that act relating to alien Burnham (C. C. A.), 59 Fed. R. 752; contracts for labor, may be properly Holt v. Bergevin, 60 Fed. R. 1. begun by capias in accordance with 43 Perry v. Mechanics' Mut. Ins. the State law. U. S. v. Banister, 70 Co., 11 Fed. R. 478; Delaware Co. Fed. R. 44. But see Shepard v. Com’rs v. Diebold S. Co., 133 U. S. Adams, 168 U. S. 618; infra, & 361. 473, 488. Non-joinder of husband in
36 Brown v. Pond, 5 Fed. R. 31, 37. action by wife, although the woman But see $ 361.
is an alien. Morning Journal Ass'n 37 U. S. v. Rose, 14 Fed. R. 681. v. Smith (C. C. A.), 56 Fed. R. 141.
38 Edmunds v. Illinois C. R. Co., 80 44 West v. Home Ins. Co., 18 Fed. Fed. R. 78, where the cause of ac- R. 622; Cottier v. Stimson, 18 Fed. R. tion arose under a Federal statute, the 689. Interstate Commerce Act. Where 45 Ricard v. Inhabitants New Provi. there is no State statute, the suit dence, 5 Fed. R. 433. But not necesmust be brought in the name of the sarily as to the return day. Ewing assignor. Nederland L. I. Co. v. v. Burnham, 74 Fed. R. 384. Hall, 84 Fed. R. 278.
46 Wilson v. Fine, 38 Fed. R. 789. 39 Shampeau v. Connecticut R. L. 47 Rosenbach v. Dreyfuss, 1 Fed. Co., 37 Fed. R. 771; Wilson v. Fine, R. 391. But see U. S. R. S., & 954; 38 Fed. R. 789; Amy v. Watertown, Erstein v. Rothschild, 22 Fed. R. 61; 130 U. S. 301. See supra, SS 93-98. and infra, S 361. So held as to the form of a return of 48 Partridge v. Felix Mut. L. I. Co., service. Trimble v. Erie El. M. Co., 15 Wall. 573; Dushane v. Benedict, 89 Fed. R. 51; Wilson v. Hurst, Peters 120 U. S. 630; Charnley v. Sibley C. C. 441; U. S. v. Lotridge, 1 Mc- (C. C. A.), 73 Fed. R. 980. But not of Lean, 246.
Scott v. Arm40 ]n re Louisville Underwriters, strong, 146 U. S. 499. 134 U. S. 488, 493; Miller's Adm'r y, 49 Harris v. Hess, 10 Fed. R. 263. In Norfolk & W. R. Co., 41 Fed. R. 431; the absence of statute, interpleader McCormick H. Mach. Co. v. Walth- or the bringing in of a new party