can not be assessed in equity.21 Where the bill charges the infringement of a registered mark the prayer should ask for an increase of the actual damages found, as provided in section 19 of the Act of 1905. The prayer for general relief should be in the form usual in equity pleading.22 Unless a preliminary injunction is prayed for the bill need not be verified.23 21-Hennessy v. Wilmerding Loewe Co., 103 Fed. Rep. 90. 22-A bill to enjoin unfair competition must expressly charge that the defendant has attempted or intended to practice fraud upon the public. Lamont v. Leedy, 88 Fed. Rep. 72, 74. But this rule is hardly broad enough. The better doctrine would seem to be that the bill need only charge that the defendant's merchandise is calculated to deceive the public. referring to the federal courts in Judge Lacombe, practice of the cases of unfair trade, has said: "Nor do these courts require specific proof of purchases by individuals actually deceived, when the labels themselves show an attempt at deception which appears to be well calculated to deceive." Collinsplatt v. Finlayson, 88 Fed. Rep. 693. And the same learned court indicates the same rule in Burnett v. Hahn, 88 Fed. Rep. 694. A bill to enjoin the manufacturer or vendor of spurious labels must contain an express charge that the defendant is actually engaged in assisting third persons to palm off their goods upon the public as the goods of the complainant, or a substantially equivalent averment. De Kuyper v. Witteman, 23 Fed. Rep. 871; Hennessy v. Herrmann, 89 Fed. Rep. 669. A bill to enjoin the infringe ment of a technical trademark must set up facts showing an exclusive right to the use of the mark in the plaintiff. He "must recover upon the strength of his own title, and not upon the weakness of the defendant's." Brown, J.. in O'Rourke v. Central City Soap Co., 26 Fed Rep. 576-579, Improper joinder of causes of action.-A bill is multifarious that joins with a charge of unfair competition by the use of a trade name a claim for damages under the Sherman anti-trust act of July 2, 1890. Block v. Standard Distilling & Distributing Co., 95 Fed. Rep. 978. A bill is multifarious that joins with a charge of unfair competition (by passing off the defendant's goods in unmarked packages as and for plaintiff's goods) a charge of patent infringement. Ball & Socket Fastener Co. v. Cohn, 90 Fed. Rep. 664. In the absence of other facts indicating unfair competition, a charge of patent infringement and of unfair competition in the sale of the infringing article is apt to be inconsistent. If the patent is good and the article sold infringes, remedy accordingly is all plaintiff is entitled to. If the patent is void the article is of public right to make. use and sell, and there has been no unfair competition. If the patent is valid but defendant does not infringe there must be simulation in non-functional details or there is no unfair competition. See the illustrative opinion of Dickinson, J.. in Helfi Co. v. Silvex Co., 274 Fed. Rep. 653. Compare Bayley & Sons v. Braunstein Bros. Co., 246 Fed. Rep. 314. Averment of ownership.-A bill for trademark infringement failing to aver ownership of the trademark is fatally defective. Pennell V. Lothrop, 191 Mass. 357; 77 N. E. Rep. 842. 23-Hughes v. Northern Pacific Rv. Co., 18 Fed. Rep. 106, 110: Black v. Allen, 42 Fed. Rep. 618. 623 These suggestions for the most part relate to bills in the federal courts. The decisions of those courts are so harmonious that the great bulk of the trademark litigation is before them. As to the state courts, reference must necessarily be had to the local forms of action (or absence of such forms) created by legislative enactment. As to the joinder of causes of action the new rules provide as follows: 26. JOINDER OF CAUSES OF ACTION. The plaintiff may join in one bill as many cases of action, cognizable in equity, as he may have against the defendant. But when there are more than on plaintiff, the causes of action joined must be joint, and if there be more than one defendant the liability must be one asserted against al of the material defendants, or sufficient grounds must appear for uniting the causes of action in order to promote the convenient administration of justice. If it appear that any such causes of action can not be conveniently disposed of together, the court may order separate trials.24 24-A new rule, based upon the English rule: "Subject to the following rules of this order, the plaintiff may unite in the same action several causes of action, but if it appear to the court or a judge that any such causes of action can not be conveniently tried or disposed of together, the court or judge may order separate trials of any of such causes of action to be had, or may make such other order as may be necessary or expedient for the separate disposal thereof." (Order XVIII., Rule 1.) An illustration of the operation of this rule is found in a case in which the plaintiff alleged the infringement of twenty-three patents. Application was made to limit the action (under Order XVIII, Rules 8 and 9, and Order XIX, Rule 27), upon which application the court of appeal held that plaintiff was not entitled to unite the twentythree patents in one suit, but should be directed to select a group of his patents, not exceeding three, as being "such of the causes of action as may be conveniently disposed of together" (this being the language of Order XVIII, Rule 8). Saccharin Corp. v. Wild (1903), 1 Ch. 410. That this rule does not compel the joinder of dissimilar actions, or of causes which would require various kinds of relief or various accountings, see Marconi Wireless Tel. Co. v. National Elec. Signaling Co., 206 Fed. Rep. 295. That it does not authorize the joinder of a suit in equity and an action at A bill for unfair competition will not be held bad on motion to dismiss upon the ground that the words and phrases charged to be used by the defendant might lawfully and properly be used by him separately, where it is apparent that by their conjoint use he has been competing unfairly.25 For further decisions under this and the following rules referred to, see Hopkin's Equity Rules, 4th Edition. § 187. Presenting the defenses.-The methods of attacking the bill have been radically changed as to form by the new equity rules. 29. DEFENSES-HOW PRESENTED. Demurrers and pleas are abolished. Every defense in point of law arising upon the face of the bill, whether for misjoinder, nonjoinder, or insufficiency of fact to constitute a valid cause of action in equity, which might heretofore have been made by demurrer or plea, shall be made by motion to dismiss or in the answer; and every such point of law going to the whole or a material part of the cause or causes of action stated in the bill may be called up and disposed of before final hearing at the discretion of the court. Every defense heretofore presentable by plea in bar or abatement. shall be made in the answer and may be separately heard nd disposed of before the trail of the principal case in the discretion of the court. If the defendant move to dismiss the bill or any part thereof, the motion may be set down for hearing by either party upon five days' notice, and, if it be denied, answer shall be filed within five days thereafter or a decree pro confesso entered.26 law, see Bucyrus Co. v. McArthur, 219 Fed. Rep. 266. That the nature of one cause of action stated in the bill, of itself creating jurisdiction, can not give the court jurisdiction over a joined cause of action over which jurisdiction is dependent upon amount in controversy and diverse citizenship, see Vose v. Roebuck, etc. Co., 210 Fed. Rep. 687. 25-Holeproof Hosiery Co. V. Richmond Hosiery Mills, 167 Fed. Rep. 381. 26-Demurrers were abolished in the English practice by the following rule: "No demurrer shall be allowed (Order XXV, Rule 1). Order XV provides, as indicated in its title, "Proceedings in Lieu of Demurrer," and of this order the court of appeal has said that it "abolished demurrers and substituted a more summary process for getting rid of pleadings which show no reasonable cause of action or de § 188. The answer. The provision of the new rules as to the answer is as follows: 30. ANSWER-CONTENTS-COUNTER-CLAIM The defendant in his answer shall in short and simple terms set out his defense to each claim asserted by the bill, omitting any mere statement of evidence and avoiding any general denial of the averments of the bill, but specifically admitting or denying or explaining the facts upon which the plaintiff relies, unless the defendant is without knowledge, in which case he shall so state, such statement operating as a denial. Averments other than of value or amount of damage, if not denied, shall be deemed confessed, except as against an infant, lunatic or other person non compos and not under guardianship, but the answer may be amended, by leave of the court or judge, upon reasonable notice, so as to put any averment in issue, when justice requires it. The answer may state as many defenses, in the alternative, regardless of consistency, as the defendant deems essential to his defense. The answer must state in short and simple form any counter-claim arising out of the transaction which is the sub fense. Two courses are open to a defendant who wishes to raise the question whether, assuming a statement of claim to be proved, it entitles the plaintiff to relief. One method is to raise the question of law as directed by Order XXV, Rule 2; the other is to apply to strike out the statement of claim under Order XXV, Rule 4. The first method is appropriate to cases requiring argument and careful consideration. The second and more summary procedure is only appropriate to cases which are plain and obvious, so that any master or judge can say at once that the statement of claim as it stands is insufficient, even if proved, to entitle the plaintiff to what he asks." Hubback v. Wilkinson (1899), 1 Q. Pleas in abatement were expressly abolished in England by Order XXI, Rule 20-"No plea or defense shall be pleaded in abatement." Motions to dismiss.-That such motion will be denied unless it appears that upon the ground of the motion the bill would have to be dismissed at final hearing, see Ralston Steel Car Co. v. National Dump Car Co., 222 Fed. Rep. 590. That such motion raises such questions as could be raised by demurrer under the old rules, see Hyams v. Old Dominion Co., 204 Fed. Rep. 681; Fordham v. Hicks 224 Fed. Rep. 810. Ject-matter of the suit, and may, without cross-bill, set out any set-off or counter-claim, against the plaintiff which might be the subject of an independent suit in equity against him, and such set-off or counter-claim, so set up, shall have the same effect as a cross-suit, so as to enable the court to pronounce a final judgment in the same suit both on the original and cross-claims.27 § 189. Particulars.-The new equity rules provide for particulars as follows: FURTHER AND 20. PARTICULAR' STATEMFNT IN PLEADING MAY BE REQUIRED. A further and better statement of the nature of the claim or defense, or further and better particulars of any matter 27-A new rule, largely based on the English practice; but so radically different from that practice that the English decisions will be of small benefit to the American practitioner. See Order XIX, Rules 2 and 3. At common law a defendant who had a claim against the plaintiff could not assert it by way of setoff or counter-claim, save that, when sued for the purchase price of merchandise, he could set up breach of warranty, express or implied. Street v. Blay (1831), 2 Barn. & Ad. 456. The statute of 2 Geo. II, c. 22, permitted the defendant to plead a set-off in certain cases; but in courts of law only legal liabilities could be off-set, while in courts of equity, equitable claims for liquidated amounts, created between the same parties and in the same right could be SO off-set. Cavendish v. Greaves, 24 Beav. 163. Under the modern practice in England the defendant may acquire and set off a debt owing by the plaintiff to a stranger to the litigation, Bennett v. White, W. N. (1910), 167. A set-off is still a defense to the plaintiff's claim; while a counterclaim is a cross-action, which need not have any connection, however remote, with the plaintiff's cause of action. It need not be "an action of the same nature as the original action." Beddall v. Maitland, 17 C. D. 181. The net result of the revised procedure in England is that a legal counter-claim may be interposed in chancery, and an equitable claim in an action at law. Fleming v. Lee (1901), 2 Ch. 594. As to the purpose and intent of the rule in simplifying the answer, see Coulston v. Francke Steel Range Co., 221 Fed. Rep. 669; Pittsburgh Water Heater Co. v. Beler Water Heater Co., 222 Fed. Rep. 950. As to comparison with the working of the English rules, see Terry Steam Turbine Co. v. B. F. Sturtevant Co., 204 Fed. Rep. 103; Buffalo Specialty Co. v. Vancleef, 217 Fed. Rep. 91. That the rule does not permit a strictly legal demand to |