a lunatic or other person non compos and not under guardianship. When justice requires, an answer may be amended by leave of the Court or the judge, upon reasonable notice, so as to put any averment in issue. The answer may state as many defenses in the alternative, regardless of consistency, as the defendant deems essential to his defense.1 430. Cross Bills Abolished, Counter-Claims in Answer Substituted.-Cross bills are abolished. There is no further necessity for them. The answer must state in short and simple form any counter-claim arising out of the transaction which is the subject-matter of the suit, and may set up any set-off or counter-claim against the plaintiff which might have been the subject of an independent suit in equity against him. Such set-off or counter-claim, so set up, has the same effect as a cross suit, and enables the Court to pronounce a final judgment, both on the original and cross claims.1 431. What Affirmative Claims May Defendant in His Answer Make Against Plaintiff?—The lower Federal Courts seem to be having some difficulty in determining just what the Supreme Court meant by saying that the defendant might set out in his answer any set-off or counterclaim which might be the subject of an independent suit in equity against the paintiff. The language is admittedly broad, but with the inherent conservatism of the Courts, some judges have held that the defendant may not set up any claim which he could not, under the old system of pleading, have made the subject of a cross bill. It is easy to conceive of two controversies which, although between the same parties, are so unconnected that they cannot with any advantage be tried together. Perhaps it is because they have had such instances in mind that some of the Courts have been so unwilling to give to the words of the rule their most 1 Rule 30. 1 Rule 30. 1 Williams Patent Crusher & Pulverizer Co. vs. Kinsey Mfg. Co., 205 Fed. 375; Terry Steam Turbine Co. vs. B. F. Sturtevant Co., 204 Fed. natural interpretation. Even if the broadest construction be accepted, it is not necessary that two unrelated cases. shall be tried together. Rule 26 expressly provides that where the plaintiff joins two or more causes of action in his bill, the Court may order separate trials when they cannot be conveniently disposed of together. Doubtless the same discretion may be exercised when the difficulty of trying all the issues at one time is caused by the defendant uniting in his answer two or more counter-claims. It will be quite possible to deal in one action, although if need be by separate trials, with all the equitable controversies between the same parties, provided they are all within the jurisdiction of the Federal Courts. In that way a final decree when drawn will dispose of all the controversies between the parties at one time and neither will be able to secure a decree against the other, while the other's equity suit is still pending against him. The whole subject, and all the authorities, have been ably reviewed by Judge Rellstab.1 1 432. General Replication Abolished.-Where the answer does not rely upon a set-off or counter-claim the case is regarded as at issue upon the filing of the answer. No general replication is required. If the answer sets up a setoff or counter-claim, the plaintiff must reply thereto within ten days after the filing of the answer unless the judge allows a longer time. In default of a reply a decree pro conjesso on the counter-claim may be entered as in default of an answer to the bill.1 433. Exceptions to Answer Abolished.-Exceptions. to an answer are abolished, but if the answer set up an affirmative defense, set-off or counter-claim, the plaintiff, upon five days' notice, or such further time as the Court may allow, may test the sufficiency of the same by motion to strike out.1 Electric Boat Co. vs. Lake Torpedo Boat Co., 215 Fed. 377. 434. Equity Suit May Be Turned Into a Suit at Law. A very important innovation is made by Rules 22 and 23. The former provides that "if at any time it appear that a suit commenced in equity should have been brought as an action on the law side of the court, it shall be forthwith transferred to the law side and be there proceeded with, with only such alteration in the pleadings as shall be essential." 435. No Longer Necessary to Send Legal Issue to Law Court for Trial.-Rule 23 directs that "if in a suit in equity a matter ordinarily determinable at law arises, such matter shall be determined in that suit according to the principles applicable, without sending the case or question to the law side of the court." I do not understand that it is intended by these rules to break down the doctrine that in the Federal Courts, law and equity are to be kept separate and to be administered by distinct tribunals. All that is now purposed, I suppose, is that this doctrine while preserved in substance, shall not be enforced in such a way as to cause any unnecessary hardship to the parties. It is not improbable, however, that before long some way will be found by which legal and equitable causes of action or of defense may be disposed of in one suit, the right of trial by jury secured by the seventh amendment being, of course, preserved. 436. Amendments.-Amendments may be allowed, at the discretion of the court, in furtherance of justice, at any stage of the proceedings, and the court may disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.1 Whenever an amendment is made to a bill after answer filed, the defendant must put in a new or supplemental answer within ten days after that on which the amendment or amended bill is filed, unless the time is enlarged or it is otherwise ordered by a judge of the court.2 437. Testimony to Be Taken in Open Court.-A great revolution in the practice of the Federal Courts will be worked by the new rule which requires the testimony in 1 Rule 19. 2 Rule 32 equity causes to be taken orally in open Court. Where witnesses reside more than a hundred miles from the place of holding the Court, or where for other reasons prescribed by statute it is permissible to take their depositions out of Court, such depositions may still be taken and used, as they may be when in the case of particular witnesses good and exceptional cause for departing from the general rule is shown by affidavits.1 438. Time Within Which Depositions Must Be Filed. It is provided that all depositions taken under a statute or under any order of Court shall be taken and filed, unless otherwise ordered by the Court or judge for good cause shown, within the following times, viz, "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."1 439. Expert Testimony in Patent and Trade-Mark Cases. In a case involving the validity or scope of a patent or trade-mark, the District Court may, upon petition, order that the testimony in chief of expert witnesses whose testimony is directed to matters of opinion, shall 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 the plaintiff's time has expired, and those in rebuttal within fifteen days after the expiration of the time for filing original affidavits. These are obviously to be exparte affidavits, because the rule provides that, should the party desire the production of any affiant for cross-examination, the Court will, on motion, direct that the crossexamination and re-examination shall take place before the Court upon the trial, and unless the affiant is produced and 1 Rules 46, 47. 1 Rule 47. submits to cross-examination in compliance with such direction his affidavit shall not be used as evidence in the cause.1 440. When Case Goes on Trial Calendar.-As soon as the time for taking and filing depositions under these rules has expired, the case is placed on the trial calendar. Thereafter no further testimony by deposition may be taken except for some strong reason shown by affidavit. In every application for permission to do so, the reason why the testimony of the witness cannot be had orally at the trial and why his deposition has not been before taken shall be set forth, together with the testimony which it is expected he will give.1 441. Postponements and Continuances.-After a cause has been placed on the trial calendar it may be passed over to another day of the same term by consent of counsel or order of Court. It shall not be continued beyond the term save in exceptional cases by order of the Court upon good cause shown by affidavit and upon such terms as the Court shall at its discretion impose. Continuances beyond the term by the consent of the parties shall be allowed on condition only that a stipulation be signed by counsel for all the parties, and that all costs incurred theretofore be paid. Thereupon an order shall be entered dropping the case from the trial calendar subject to re-instatement within one year upon application to the Court by either party, in which event it shall be heard at the earliest convenient day. If not so reinstated within the year the suit shall be dismissed without prejudice to a new one.1 442. Reference to Special Masters Discouraged.— Heretofore special masters have been much used in the Federal Courts less in this district, I think, than in most others. Such references had become in many places so |