the preparation and presentation of a case whose circumstances they have thoroughly investigated, appointment to the bench confers such impeccability upon those who have had little experience in the preparation of complicated equity cases and little conception of the factors which enter into their preparation, that they can, in the rush of a crowded docket, with no time for consideration and no familiarity with the elements involved, unerringly dictate the whole course of procedure.

When we consider how impossible it is for counsel having the widest experience and best qualifications, to determine, without days or weeks of careful investigation, the requirements and appropriate mode of procedure for preparing and presenting such cases as mainly occupy federal courts of equity, and how seldom occupants of the federal Bench bring to it much practical experience in the preparation of such cases-especially in all varieties of equity cases encountered there-it requires a credibility in the plenary inspiration conferred by appointment to the Bench quite as implicit as the most devout papist ever entertained concerning the infallibility conferred by election to the Holy See, to suppose that such control, hastily administered as it generally must be, superficially and unintelligently administered as it often may be, would remove more perils than it introduced or promote justice as often as it impedes or deflects it. It would be strange if the results were not in many instances freakish, subversive of the rights of litigants to have their causes suitably presented through such qualified counsel as they select and upon such competent evidence as such counsel deem essential, disturbing to the confidence which should be entertained in the administration of equity, and prolific in error.

The principal causes of complaint concerning practice under the old rules were due more to the refusal of the courts to give prompt relief against abuses, when applied to for such relief, than to defects in the rules themselves. No rules can altogether eliminate abuses. They are inevitable until all lawyers, all clients and all judges become perfect in knowledge, judgment and integrity; then all rules of court may be obsolete.

Expedition was one of the leading objects at which the new rules purported to aim; brevity in pleading another; the exclusion of incompetent evidence another; economy to litigants an

other; all commendable objects if secured without sacrifice of what is more important, but all, in my opinion, far better attainable by proper administration of the old rules with such few and simple amendments as would have avoided most of the ills precipitated by the new. The old rules had fixed by uniform rule days the time for entering appearance and for filing pleadings. These rule days were the first Monday of each month, when the judge was expected to be accessible, either in chambers or on the Bench, to hear and dispose of such motions or other interlocutory matters as might be incident to these several stages of pending cases. The convenience to busy lawyers of having this regular concurrence on the first Monday of each month of the dates for appearing or pleading, no presumption that any judge himself in readiness to hear such motions or make such orders as might be incident thereto, and its contrast with the inconvenience introduced by the new rules, was greater than can be appreciated by any who have not been in active practice in federal courts of equity, both before and since the adoption of the new rules. Now there is no uniformity, no concurrence of dates for appearing or pleading; no presumption that any judge will be in readiness to hear interlocutory motions on the day appearances or pleadings become due. It is true that neglect of the rule day on the part of many judges (who presumably were unconscious of its significance) had already impaired one of the advantages for which it was provided, but its regular uniform occurrence on dates easily observed still contributed materially to convenience and system.

It was urged that the time allowed for appearance and pleading was unnecessarily long. If this had been so, more frequent but uniform rule days might have been substituted; but this complaint was generally due to ignorance or disregard of what has to be done by litigants and solicitors or counsel preparatory to appearance and pleading, respectively, and of the importance of having each of these steps intelligently and considerately taken. Generally a defendant served with a subpoena requiring him to appear and answer in a federal court, must consult competent counsel before he can safely do either. This is certainly true in patent suits. Ill-considered entry of appearance or answer may waive or jeopardize essential rights. He may not know

where to look for competent counsel or have any idea of the nature of the controversy thus precipitated upon him; he may be remote from the court to which he is thus summoned and from such legal advice as he needs, or so conditioned in other respects that he cannot select and consult counsel at once. If he has counsel to whom he would naturally go for legal advice, such counsel may be inaccessible at the time by reason of absence, sickness or peremptory occupation in the trial of a case. The question whether to contest or settle the case, and conferences over the terms of possible settlement, may precede the employment of counsel. If the defendant be a corporation, it may require a conference of absent officers before the course to be pursued or the counsel to be consulted can be determined. When a lawyer is selected and consulted, he may be so unacquainted with the branch of the law to which the suit pertains that he needs to call in distant counsel and conduct correspondence before determining whom to recommend and whether he is available. Then remain the questions to be settled before appearance can properly be entered-whether general or special appearance shall be made, or no appearance; whether the defendant is amenable to suit in that court; whether appearance should be entered in behalf of all the defendants, if there be more than one, or, if not, in behalf of which, and whether there shall be a common appearance for all or several special appearances for each. These are questions often requiring considerable investigation of facts involving successive correspondence and interviews with different persons and careful examination of statutes, decisions and records. Defendants cannot properly be compelled to drop everything else the moment a subpoena is served, or lawyers the moment a client comes to consult them about a new case, and devote their whole time to that case.

The time allowed for appearance under the old rules was not too long to meet the ordinary conditions thus presented and in many cases was hardly adequate. It is so shortened by the new rules as to often work great hardship and give great advantage to the chronic litigant as compared with those who aim to avoid litigation and who are not equipped for it or experienced in it.

That the time allowed by the old rules for answer was not excessive, but often inadequate, for the investigations necessary

to properly prepare an answer, cannot, I think, be seriously disputed by lawyers experienced in the preparation of such answers. It was so well recognized, and the ultimate economy in time and labor of having a complete and well-considered answer filed in the first instance, instead of resorting to subsequent amendments or including defenses which had not been thoroughly investigated, was so well understood among experienced lawyers, that the time was frequently extended by consent or by order of

court.

Since the new rules took effect, able and upright judges are holding under consideration motions requiring for their disposal not one-third the time or thought needed in the preparation of an answer, for several times the period allowed for answer under the old rules. Rules that compel in substantially every case the presentation and argument of motions for time in which to prepare answer, with showing of cause, and place it within the power of a novice on the Bench whose only experience has been in filing an answer and taking proofs in simple commercial cases to arbitrarily refuse a suitable extension, perhaps with a sneer at the incapacity of those who ask for it, are burdensome, obnoxious and destructive of statutory rights. If intelligently and considerately administered, they involve unnecessary labor for both counsel and courts and expense for clients, with no advantage in expedition. If hurriedly administered-as they are liable to be by judges under pressure to keep up with the avalanche of motions and hearing of testimony taken before the courts, thrust upon them by these rules-the effect is altogether mischievous.

Such rules encourage capricious assumption of autocratic authority to abridge statutory rights by refusing allowance of adequate time for pleading and evidence expressly provided for by statute, even by excluding such pleadings and proofs sui sponte. This certainly was not the intent of the rules. How far such extension of the judicial prerogative can be carried without becoming judicial usurpation, incurring and deserving impeachment, is a question upon which I shall not now enter. The right of parties to be fully heard on evidence and argument through counsel of their own choosing, before their equities are adjudged a right once deemed sacred and inviolable, in the defense of which much treasure and blood has been expended

by past generations-was not, I think, intended to be surrendered by the provision of our constitution conferring life tenure on our federal judges. Those of us who have been much before the federal courts in various circuits, and before our Supreme Court, have recognized with admiration and gratitude the worthy conception and exemplification of judicial character, the intelligence and conscientious devotion, the respectful treatment of counsel, the solicitude to abstain from encroachments on their province and to patiently hear their client's cause as presented by them, characteristic of most of our federal judges, and keenly regret every innovation conducive to judicial arrogance or to intrusion on the rights of litigants as exercised through their counsel, whether in the preparation or argument of their cases.

The greatest peril to the permanent judicial tenure is from the abuse of the authority it confers, and the temptation to extend that authority beyond legitimate limits, or to so exercise it as to provoke distrust and resentment.

The recitals in bills or answers of what served no useful purpose, was not encouraged but discouraged by the terms of the old rules, and grew largely from the tendency of judges to sustain demurrers or technical objections wherever such recitals were omitted. It would have seemed sufficient, for instance, to allege in a bill that the invention had been made by the designated patentees and secured to them by a patent properly identified in the pleading by number,. date and subject matter; continued ownership by the patentee, or the assignment to the plaintiff; and the trespass charged against the defendant; leaving the defendant to specifically plead, as required by the statute, the several defenses relied upon. Instead of this, it had been made necessary by a series of decisions of the courts, to recite a large portion of the patent statute in the bill and severally traverse these recitals in the answer before either of them suggested the real issues in controversy. The new rules have not expressly dispensed with these recitals, and are hardly more explicit than the old ones on this subject.

If when under the old rules an attorney was taking evidence plainly incompetent, or committing other abuses, the courts would have entertained a motion for such relief as it then had power to give, it would have been quite as effective as any pro