55. DEPOSITION DEEMED PUBLISHED WHEN FILED. Upon the filing of any deposition or affidavit taken under these rules or any statute, it shall be deemed published, unless otherwise ordered by the court.81 56. ON EXPIRATION OF TIME FOR DEPOSITIONS, CASE GOES ON TRIAL CALENDAR. After the time has elapsed for taking and filing depositions under these rules, the case shall be placed on the trial calendar. Thereafter no further testimony by deposition shall be taken except for some strong reason shown by affidavit. In every such application the reason why the testimony of the witness can not be had orally on the trial, and why his deposition has not been before taken, shall be set forth, together with the testimony which it is expected the witness will give.82 58. DISCOVERY-INTERROGATORIES-INSPECTION AND The plaintiff at any time after filing the bill and not later than twenty-one days after the joinder of issue, and the defendant at any time after filing his answer and not later than twentyone days after the joinder of issue, and either party at any petuated according to the laws of the state, and in no wise relates to testimony perpetuated by direction of a circuit court in pursuance of the statutes of the United States under which this bill is filed." Benedict, J., in New York & Balto. Co. v. New York Co., 9 Fed. Rep. 578, 579. 81-A new rule abolishing the order of publication required by former Rule 69. 82-A new rule. As Ruie 47 allows a total of 110 days for depositions after the cause is at issue, this rule may be construed to mean that no case can go on the trial calendar until that time has elapsed. What showing must be made under this rule on the application for leave to take testimony, and when such leave is proper to be granted, and that it may be made without prejudice to the opposing party even though he attends the taking of the testimony, are matters discussed in United Lace Mfg. Co. v. Barthels Mfg. Co., 217 Fed. Rep. 175. time thereafter by leave of the court or judge, may file interrogatories in writing for the discovery by the opposite party or parties of facts and documents material to the support or defense of the cause, with a note at the foot thereof stating which of the interrogatories each of the parties is required to answer. But no party shall file more than one set of interrogatories to the same party without leave of the court or judge. If any party to the cause is a public or private corporation, any opposite party may apply to the court or judge for an order allowing him to file interrogatories to be answered by any officer of the corporation, and an order may be made accordingly for the examination of such officer as may appear to be proper upon such interrogatories as the court or judge shall think fit. Copies shall be filed for the use of the interrogated party, and shall be sent by the clerk to the respective solicitors of record, or to the last known address of the opposite party, if there be no record solicitor. Interrogatories shall be answered, and the answers filed in the clerk's office, within fifteen days after they have been served, unless the time be enlarged by the court or judge. Each interrogatory shall be answered separately and fully and the answers shall be in writing, under oath, and signed by the party or corporate officer interrogated. Within ten days after the service of interrogatories, objections to them, or any of them, may be presented to the court or judge, with proof of notice of the purpose so to do, and answers shall be deferred until the objections are determined, which shall be at as early a time as is practicable. In so far as the objections are sustained, answers shall not be required. The court or judge, upon motion and reasonable notice, may make all such orders as may be appropriate to enforce answers to interrogatories or to effect the inspection or production of documents in the possession of either party and containing evidence material to the cause of action or defense of his adversary. Any party failing or refusing to comply with such an order shall be liable to attachment, and shall also be liable, if a plaintiff, to have his bill dismissed, and if a defendant, to have his answer stricken out and be placed in the same situation as if he had failed to answer. By a demand served ten days before the trial, either party may call on the other to admit in writing the execution or genuineness of any document, letter or other writing, saving all just exceptions; and if such admission be not made within five days after such service, the costs of proving the document, letter or writing shall be paid by the party refusing or neglecting to make such admission, unless at the trial the court shall find that the refusal or neglect was reasonable.83 § 211. Eflect of former adjudication.-A former decision adjudging the plaintiff's title to the trademark is a sufficient basis, where infringement is clear, for a preliminary injunction.84 Of course the former adjudication is not conclusive, but it is always of persuasive value.85 When a former adjudication is urged as a bar to a later suit, the questions to be determined are, what was the judgment, was it within the jurisdiction of the court, was it between the same parties or their privies, and is it still in force and effect? 86 Where privity exists between the successive defendants, the decree in the earlier case must be given the same force and effect as if the original defendant were the defendant in the later case, 87 The effect of a voluntary dismissal of a bill for trademark infringement has been held in England to be the abandonment 83-A new rule adopting the English practice of Order XXI, "Discovery and Inspection." Under this rule the plaintiff's interrogatories are no longer a part of the bill, nor defendant's a part of the answer; in other words, they are no longer pleadings. Luten v. Camp. 221 Fed. Rep. 424. Interrogatories may be filed after issues are joined. Ibid. By inference from this rule, there is no longer any requirement that the answer in equity be made under oath. Pittsburgh Water Heater Co. v. Beler Water Heater Co., 222 Fed. Rep. 950. "Undoubtedly the purpose of authorizing interrogatories was to enable the court to make a summary disposition of a cause by applying the law to an admitted state of facts." Bronk v. Scott Co., 211 Fed. Rep. 338; 128 C. C. A. 17. 84-Symonds v. Greene, 28 Fed. Rep. 834, 835; Moxie Nerve Food Co. v. Beach, 33 Fed. Rep. 248; Carmel Wine Co. v. Palestine Hebrew Wine Co., 161 Fed. Rep. 654. 85-Price Baking Powder Co. v. Fyfe, 45 Fed. Rep. 799. 86-Mr. Justice Day, in Deposit Bank v. Frankfort, 191 U. S. 510; 48 L. Ed. 279. 87-W. A. Gaines & Co. v. Rock Spring Distilling Co., 226 Fed. Rep. 531, 537; 141 C. C. A. 287. of the trademark; 88 but it has been held that the dismissal of such a bill for want of prosecution, through the failure of the plaintiff to press the case, is not a bar to a later action against the successor in business of the original defendant.89 A former decree for defendant in a suit charging unfair competition is no bar to a later suit between the same parties based upon facts arising after the former decree and constituting a new right of action.90 88-Browne v. Freeman, 12 W. R. 305. 89 Chapin-Sacks Mfg. Co. V. Hendler Creamery Co., 231 Fed. Rep. 550, 555, 90-Auto Acetylene Light Co. v. Prest-O-Lite Co., 264 Fed. Rep. 814, C. C. A. 6. COSTS. $212. Generally. In cases of unfair trade the same rules as to costs obtain as in other actions. The general rule is that costs follow the event. A successful plaintiff will be awarded costs,1 and costs will be refused to one who is unsuccessful.' 3 So costs will be awarded to the successful plaintiff, even though he is denied damages, and against an infant, or a married woman having a separate estate. The rule as to divided costs has been admirably put by Judge Campbell-Both parties having won and lost, no costs are allowed." ba § 213. Avoiding costs by submission.-We have had occasion elsewhere to refer to the rule laid down by Sir George Jessel, that the complainant in actions of the character now under consideration should not give notice to the infringer before suit ;6 1-Coats v. Holbrook, 2 Sandf. Ch. 586; Cox, 20; Seb. 79; Pierce v. Frank, 15 L. J. Ch. 122; Seb. 81; Rodgers v. Nowill, 6 Hare, 325; Seb. 82; Burgess v. Hately, 26 Beav. 249; Seb. 169; Burgess v. Hills, 26 Beav. 244; 28 L. J. Ch. 356; Seb. 170: Collins Co. V. Walker, 7 W. R. 222; Seb. 171; Jurgenson v. Alexander, 24 How. Pr. 269; Cox, 298; Seb. 211; Edelsten v. Edelsten, 1 DeG. J. & S. 185; Seb. 213; McAndrews v. Bassett, 4 DeG. J. & S. 380; Seb. 234; Chubb v. Griffiths, 35 Beav. 127; Seb. 255; Field v. Lewis, Seton (4th Ed.), 237; Seb. 289; Weed v. Peterson, 12 Abb. Pr. N. S. 178; Seb. 387; Compagnie Laferme v. Hendrick, Seb. 512; Sawyer v. Kellogg, 9 Fed. Rep. 601; Cox, Manual, 682; McLean v. Fleming, 96 U. S. 245; 24 L. Ed. 828; Chappell V. Davidson, 2 K. & J. 123; Seb. 136; In re Trademark, 53 L. J. Ch. 238. Costs "are always awarded to the successful side, unless there has been something in the conduct of the party which renders such a course inequitable and unjust to the losing side." Nixon, J., in Bunker v. Stevens, 26 Fed. Rep. 245249. 2-Bass v. Dawber, 19 L. T. N. S. 626; Seb. 310; Appeal of the Putnam Nail Co., Cox, Manual, No. 725; Weener v. Brayton, 152 Mass. 101. 3-Weed v. Peterson, 13 Abb. Pr. N. S. 178: Seb. 387. 4-Chubb v. Griffiths, 35 Beav. 127; Seb. 255; Cory v. Gertcken, 2 Madd. 49; Woolf v. Woolf, 43 Sol. J. 127. 5-Nicholls v. Kimpton, 3 Times L. R. 674. 5a-Abbott Coin Counter Co. v. Standard-Johnson Co., 290 Fed. Rep. 418-428. Kuhn & Co's 6-Upmann v. Forester, L. R. 24 Ch. D. 231. |