Way v. Hygienic Fleeced Underwear Co.

144 F. 870, 1906 U.S. App. LEXIS 4735

Opinion

J. B. McPPIERSON, District Judge.

The motion to strike off the exceptions must be refused. I think they were filed in time, and that equity rule 61 of the Supreme Court interposes no obstacle to their being considered now by the court.

Taking up the exceptions therefore upon the merits, the matters in dispute may be briefly disposed of. The first exception is sustained. Equity rule 40, upon which the defendants seem to rely, was repealed in 1850, and since that date it has not been necessary to interrogate a defendant specially and particularly ttpon any material statement in the bill, unless the complainant desires to obtain a discovery. The second, third, and fourth exceptions were abandoned at the argument. The fifth, sixth, and seventh exceptions are sustained. No good reason is apparent why the eighth interrogatory should not be answered directly in a few words, instead of requiring the complainant to search for the reply through the three printed pages that are devoted to paragraph 9 of the defendants’ answer. The eighth and ninth exceptions are also sustained, but the tenth is overruled because it seems to be superfluous. The eleventh and twelfth exceptions are also sustained. The qualifications to which the answers refer should be briefly and distinctly set forth therein. The thirteenth is overruled because it appears to be superfluous, and the fourteenth is overruled because it is founded upon a mistake of fact.

The defendants are allowed 15 days to amend, in accordance with this opinion.