tinues to use stationery bearing the name, left legible through having ink spread over it, is guilty of contempt,63 as is one who publishes a circular reflecting upon the decree under which he is enjoined.64

The foregoing rulings have been made in unfair trade cases. It would be foreign to our purpose to go into an extended discussion of the law governing contempts, which applies to this as to all other classes of cases. It is well to note, however, that in the federal courts, at least, while proceedings in contempt are not reviewable on error or appeal, they may be reached by certiorari.65

§ 209. Affidavits.-Applications for restraining orders and preliminary injunctions are usually founded upon and resisted by affidavits. A preliminary injunction will not be awarded on ex parte affidavits unless in a clear case.66 The complainant's affidavits in chief must show all the facts necessary to establish a prima facie right to the injunction sought. The defendant's affidavits may be by way of traverse, in which case no counter affidavits can be offered by the complainant; or they may set up matter by way of confession and avoidance, in which case the complainant may produce affidavits in reply. But where such affidavits are offered by the complainant in reply, no further affidavits can be offered by the defendant by way of rejoinder.69 All affidavits so used must be entitled in the cause; otherwise they are mere extra-judicial oaths, perjury could not be assigned upon them, and they can not be considered as evidence.69 The

66-Lare v. Harper & Bros., 86 Fed. Rep. 481; 30 C. C. A. 373; New York Asbestos Mfg. Co. v. Ambler Asbestos Air-cell Covering Co., 99 Fed. Rep. 85; Diamond Match Co. v. Safe Harbor Match Co., 109 Fed. Rep. 154.

67-Leclancha Battery Co. V. Western Electric Co., 21 Fed. Rep. 538.

68-Day v. New England Car Spring Co., 3 Blatch. 154-159, Fed. Case No. 3,686.

69-Hawley v. Donnelly, 8 Paige, 415; Buerk V. Imhaeuser, Fed. Case No. 2107a; 10 Off. Gaz. 907;

moving affidavits in contempt proceedings must directly charge the acts of violation of the decree; if on information and belief they are insufficient.70

§ 210. The taking of testimony. In actions at law depositions may be taken on due notice at any time subsequent to the filing of the petition, and it is immaterial whether the cause is at issue or not. The Act of March 9, 1892, c. 14, 27 Stat. at L. 7, U. S. Comp. St. 1901, p. 664, permits depositions of witnesses in cases pending in the courts of the United States to be taken in the mode prescribed by the laws of the state in which the courts are held. For practical orders made under this section the case cited in the note will furnish illustrations.71

The new equity rules, as promulgated by the supreme court at the October term, 1912, regulate the taking of testimony in equity causes in the federal courts, as follows:

46.

TRIAL TESTIMONY USUALLY TAKEN IN OPEN COURT -RULINGS ON OBJECTIONS TO EVIDENCE.

In all trials in equity the testimony of witnesses shall be taken orally in open court, except as otherwise provided by statute or these rules. The court shall pass upon the admissibility of all evidence offered as in actions at law. When evidence is offered and excluded, and the party against whom the ruling is made excepts thereto at the time, the court shall take and report so much thereof, or make such a statement respecting it, as will clearly show the character of the evidence, the form in which it was offered, the objection made, the ruling, and the exception. If the appellate court shall be of opinion that the evidence should have been admitted, it shall not reverse the decree unless it be clearly of opinion that material prejudice will result from an affirmance, in which event it shall direct such further steps as justice may require.72

Goldstein v. Whelan, 62 Fed. Rep. 124. To the contrary see Shook v. Rankin, 6 Biss. 477, 480, 481, Fed. Case 12, 804; Modox Co. v. Moxie Nerve Food Co., 162 Fed. Rep. 649, 651; 89 C. C. A. 441.

70-Davidson v. Munsey, 29 Utah 181; 80 Pac. Rep. 743. 71-Wallace v. D. Appleton & Co, 161 Fed. Rep. 884.

72-A new rule, abolishing the practice of former rule 67 and

47.

DEPOSITIONS TO BE TAKEN IN EXCEPTIONAL

INSTANCES.

The court, upon application of either party, when allowed by statute, or for good and exceptional cause for departing from the general rule, to be shown by affidavit, may permit the deposition of named witnesses, to be used before the court or upon a reference to a master, to be taken before an examiner or other named officer, upon the notice and terms specified in the order. All depositions taken under a statute, or under any such order of the court, shall be taken and filed as follows, unless otherwise ordered by the court or judge for good cause shown: Those of the plaintiff within sixty days from the time the cause is at issue; those of the defendant within thirty days from the expiration of the time for the filing of plaintiff's depositions; and rebutting depositions by either party within twenty days after the time for taking original depositions expires.73

48.

TESTIMONY OF EXPERT WITNESSES IN PATENT AND TRADEMARK CASES.

In a case involving the validity or scope of a patent or trademark, the district court may, upon petition, order that the testimony in chief of expert witnesses, whose testimony is directed

adopting the English practice of oral testimony in open court save where special cause exists for taking the testimony otherwise. For the English practice, see Order XXXVII, Rules 5 to 25, both inclusive.

By empowering the trial court to pass upon the admissibility of the evidence, and providing for appellate review of questions of evidence, the rule restores the practice as it existed prior to 1842, as explained in Blease v. Garlington, 92 U. S. 1; 23 L. Ed. 521.

For a discussion of the reasons which led to the adoption of this rule, see North v. Herrick, 203 Fed. Rep. 591.

73—A new rule, supplementary to Rule 46, next preceding.

This rule does not vary, abrogate or limit the application of § 863, R. S. U. S., and depositions taken under that statute need not be taken by leave of court, or within the time limited by Rule 47. Iowa Washing Mach. Co. v. Montgomery Ward & Co., 227 Fed. Rep. at p. 1007 (S. Dist. N. Y., Mayer, Hough, A. N. Hand and Learned Hand, JJ.).

to matters of opinions, be set forth in affidavits and filed as follows: Those of the plaintiff within forty days after the cause is at issue; those of the defendant within twenty days after plaintiff's time has expired; and rebutting affidavits within fifteen days after the expiration of the time for filing original affidavits. Should the opposite party desire the production of any affiant for cross-examination, the court or judge shall, on motion, direct that said cross-examination and any re-examination take place before the court upon the trial, and unless the affiant is produced and submits to cross-examination in compliance with such direction, his affidavit shall not be used as evidence in the cause.74

74-A new rule, supplementary to the two rules next preceding.

The provisions as to affidavits in the English practice are to be found in Order XXXVII, Rules 20 and 24; Order XXXVIII, Rules 25, 26, 27 and 28.

It is not clear why Rule 48 should distinguish between opinion witnesses in patent or trademark cases, and other cases. No such distinction obtains in England, where the rule is that: "Affidavits shall be confined to such facts as the witness is able of his own knowledge to prove, except on interlocutory motions, on which statements as to his belief, with the grounds thereof, may be admitted" (Order XXXVIII, Rule 3).

It is particularly obscure why trademark cases should be specified in the rule, as practically no opinion witnesses are employed in such cases, in view of the repeated rulings that the best tests of resemblance (the point upon which expert testimony was formerly occasionally introduced) are proof of actual instances of substitution, and visual inspection by the court.

Is this Rule in Contravention of Statute?-In sec. 917 it is en

taking and obtaining evidence." So, also, in sec. 913, Revised Statutes of the United States, it is provided that the forms and modes of proceeding in suits of equity are subject to regulation by the supreme court by rules prescribed not inconsistent with the laws of the United States. See Ex parte Phenix Ins. Co., 118 U. S. 610; 30 L. Ed. 274. In the Judiciary Act of 1789, 1 Stat. at L. 88, sec. 30, it was provided that the mode of proof by oral testimony and examinations of witnesses in open court should be the same in all the courts of the United States, as well in the trial of causes in equity as of actions at common law; and this provision remained in force until the adoption of the Revised Statutes, of which sec. 862 repealed it. Blease v. Garlington, 92 U. S. 1; 23 L. Ed.