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ing cases to masters before interlocutory decree, except upon consent of parties.

"We concur in the suggestion that bills of complaint should be abbreviated as far as may be, that formal bills of revivor should be dispensed with, and that reference to masters should be limited rather than extended. We think the present equity rules, with such simple amendments as we have suggested embody the simplest, most direct, flexible and adequate judicial system that has ever been contrived, and that it would be unwise to abandon it and undertake to substitute a radically different system by rules of court; that it would conduce neither to economy nor precision to abolish pleas or demurrers, but would have precisely the contrary effect; that while there are equity cases in which the evidence can be advantageously taken in open court, if the court has the necessary time at its command, there are many others, including a large proportion of complicated patent cases, in which this would be impracticable, and any rule compelling it would impose great hardship, largely increase the expense and delay and decrease the assurance of obtaining justice; and that the correction of abuses, as well as the right, in proper cases, to have the evidence, or any part of it, taken before the court, is adequately secured by the amendment we have suggested to Rule 67."

We protested against the abolition of pleas and demurrers, which, intelligently used, often disposed of a complicated litigation on the threshold and shielded the defendant against the disclosures and expense involved in answering when plaintiff was not entitled to require answer; against any rule which, in the absence of special cause affirmatively shown, would compel the witnesses to be produced and examined in open court when the case was reached upon the call of the docket, especially where counsel on both sides, knowing the circumstances of the case, agreed that they required or would be better served by taking the evidence in advance under the rules then in force; laid special stress upon the impracticability of such a rule in patent cases, where evidence is not localized as in some classes of cases, and may be extremely remote from the place of trial, widely scattered and much of it unknown until developed by the progress of the case; mentioned the hardship to witnesses as well as litigants and counsel of bringing them from great distances to await the contingencies of the docket and the development of the case, and the impossibility of anticipating the evidence that would be needed, either for defense or rebuttal, until the evidence to be met by it

was introduced; and suggested that the courts would be so burdened and clogged with the accumulation of unnecessary work thus imposed upon them as to be utterly unable to give to such cases the time and attention needed for their proper trial and adjudication, that in the majority of cases, such a rule would not conduce to intelligent, expeditious or economical administration of justice, but the contrary.

I have seen no reason to alter the opinion thus expressed, but much to confirm it. Wherever a powerful litigant, fully equipped, with trained lawyers and experts at its command, wishes to spring a surprise upon a competitor unaccustomed to litigation and unprepared for it, and slug it out of its rights, the new rules afford it an enormous advantage and destroy safeguards provided under the old. They occupy the time of the court with many controversies which would never require its attention under the former procedure, since in a large proportion of cases where the evidence was taken out of court, after the facts were established by proofs (the only way they ordinarily can be ascertained in a patent case), the rights of plaintiff were recognized by settlement or the bill dismissed, without coming to hearing. They make it necessary in cases that would otherwise be argued upon a record already prepared, for the court to listen to masses of evidence by which the facts are in the process of ascertainment, which would require no attention from it if the evidence had been taken as before, since neither plaintiff nor defendant can learn material facts in controversy and their pertinence or impertinence to the issues otherwise than through searching examination and cross examination of witnesses who understand or remember them differently, or who, in some instances, are drawing upon a stimulated imagination to which the subject in controversy gives wide range. When witnesses upon both sides have been thoroughly examined, and not till then, the essential facts may be so established, or the supposed facts so exploded, that each party accepts or discards them. It thus often happened that records contained hundreds or thousands of pages of testimony which had so accomplished its purpose before the hearing that counsel hardly referred to it in argument. This may not mean that a word of it had been unnecessarily taken, or could be properly omitted if all the testimony had been required

to be taken before the court, but rather that competent and worthy counsel accept facts when established, and are compelled by the nature of the case to elicit them under the tests of examination, cross-examination and rebuttal before they or their clients or opponents can know whether they are facts. The superficial criticism, that bulky records containing testimony to which counsel make little reference in argument indicate that the evidence has been wantonly extended, proceeds generally from ignorance or misconception. That there are instances where evidence is taken by incompetent or unprincipled counsel which wiser and better counsel would not have taken, or where a more thorough investigation in advance of answering might have dispensed with it, is true; but this is not peculiar to evidence taken out of court or to evidence in patent or other equity cases, and waste of time and expense due to such causes will not be excluded but enhanced by the new rules. It was quite possible under the old rules for the court, upon application of either party, to check such wanton procedures as effectually as it can under the new and with much less loss of time. The same is true of the improper turning loose of experts to discuss the law and evidence of a case instead of confining them to their proper sphere. Unnecessary expert evidence had been encouraged and almost compelled by decisions which refused to consider the simplest mechanical fact upon the argument of counsel in the absence of expert testimony concerning it, and many courts seemed to assume without, so far as I can perceive, the slightest reason, that the ordinary rules of evidence had no application to patent cases, an assumption which some practitioners, especially those with little training in the rules of evidence, were too willing to avail themselves of. That the expert evidence required for a particular case can only be properly provided after the proof of facts is in, would seem too obvious for discussion if the new rules had not assumed the contrary and provided for compelling it to be submitted by affidavit in advance of the trial by which the facts are developed.

The abolition of pleas and demurrers, depriving the litigant of the right to protect himself against answer where no case for answer is presented, and throwing him upon the discretion of the court as to whether it will consider in advance questions upon which either the obligation to answer or the nature of the answer

is dependent, or postpone all such questions to the hearing after answer is filed and proofs are taken, is, in my opinion, unscientific, destructive of valuable rights and promotive of burdensome and vexatious litigation. Instead of the right to determine on the threshold, and before answer, questions which may end the whole litigation and protect against disclosures to which plaintiff is not entitled and which may be the real object of an unjust attack by an iniquitous bill having no real equity to support it, the defendant is compelled to instantly and fully answer the bill, including in the answer such defenses as were before made by plea in bar or abatement as well as the disclosures sought.

While some questions of law may be raised by motion, there is no right to have such motion determined in advance of answer. If, in its "discretion," the court elects to hear such a motion in advance of trial (a discretion which a busy or indolent judge may be strongly inclined to exercise by deferring to the final hearing) the expense of the answer with all the inconvenience attending it has already been incurred. While a motion to dismiss may be determined in advance of the hearing, the rule is so framed as to compel the preparation of the answer in advance of such determination. The explicit provision of the rule is that in case such a motion is overruled, the answer "shall be filed within five days thereafter or a decree pro confesso entered." There is not even a provision that in any exigency this five days may be extended. As an answer in a patent case, and in many other cases, cannot be properly prepared in five days-often in five times five days the investigation incident to it generally consuming many weeks and costing many hundreds of dollars, sometimes thousands of dollars-all this labor and expense must be incurred in advance even where the motion to dismiss is permitted and sustained; for so uncertain are the conclusions which a judge may reach on what seems to a lawyer a perfectly plain case that absolute conviction of the best of lawyers that a motion to dismiss is well founded does not give any assurance that it will be granted. There is, in my opinion, nothing in the old rules half so burdensome or clumsy, or comparable with this for imposition and promotion of unnecessary expense, vexation and delay.

The rules concerning joinder of different causes of action and counterclaims, dispensing with the formalities of cross bills and

affording the defendant the same right as plaintiff to file interrogatories without resorting to a cross bill as was the practice before, while having the advantage of dispensing with unnecessry recitals of cross bills, counterbalance such advantage by the facilities they afford for multifariousness, for obstruction and delay and for insidious and mischievous inquisitions. It is difficult to conjecture what the ratio is between their merit and demerit until the conflict between courts and between lawyers concerning their significance and effect has reached a conclusion-if it ever does. Questions arising concerning their meaning and application are now, in some instances, consuming more time than the aggregate allowed by the old rules for appearing, pleading and taking evidence. If the provisions concerning interrogatories are to be as carefully and discriminatingly administered as they must be to safeguard against gross abuse, they will consume in many cases more time of the court and of counsel than was, under the old rules, consumed in the argument of a case on final hearing, and cause more delay than any interlocutory proceeding incurred under those rules. If they are not to be so administered, the facilities they afford for illicit inquisition are liable to become grieviously burdensome.

Equity suits under the old limitations concerning multifariousness, especially patent suits, usually presented about as many questions as counsel can well argue or courts well digest upon a single hearing. If the effect of the new rules is to enable every conceivable cause cognizable in equity, or which may be so stated as to appear to be within equity jurisdiction, to be embraced in a single suit, so that charges of infringement under a variety of electrical, chemical and mechanical patents, charges of unfair competition, of waste of water power, of maintaining nuisances and of all the abuses of trust and various forms of trespass against which courts of equity can give relief, and all the counter charges over as broad a range which defendant may make, can be included in a single suit, defendant be compelled to fully answer (including whatever counterclaims he may either elect or be obliged by the rules to include in his answer) within the limit allowed for answer, and the court must hear the evidence concerning the multiple issues so presented and determine them all at one trial, what infinite confusion worse confounded such a trial must be! If the

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