1. Defendant neither admits nor denies the corporate exist-
ence of the plaintiff, and calls for proof of incorporation, as
plaintiff may be advised.
2. Defendant admits that it is a corporation as alleged in
the bill of complaint, and doing business therein as alleged,
but denies that at its said place of business, or elsewhere, it
has committed any of the acts pleaded in the bill of complaint.
3. Defendant denies that the plaintiff is the author of the
alleged copyrighted work complained of, and demands proof
COMMON FORMS USED IN FRAMING ANSWERS. 855
4. Defendant neither admits nor denies the allegation in
the fourth paragraph of the bill of complaint contained, and
leaves plaintiff to its proof.
5. That defendant has no knowledge sufficient to form a
belief whether on the llth' day of September, 1914, or upon
any other day, plaintiff published within the limits of the
United States, or elsewhere, any book known as "Hendricks'
Commercial Register of the United States for Buyers and
Sellers Twenty-third Annual Edition," or whether the said
alleged book was, on the 14th day of September, 1914, en-
tered for copyright in the office of the register of copyrights
at Washington, D. C, or whether two complete copies of the
book were at that date or any other date filed therein, or
whether the said alleged book was printed from plates made
in the United States, from type set within the limits of the
United States, or was bound within the United States, or
whether plaintiff did all or any other acts required by law
for the completion of copyright entry, or whether the said
alleged book was published with copyright notice thereon, as
required by law, and alleged in the said bill of complaint, and
leaves plaintiff to its proof.
6. Defendant denies that by any such copyright entry or
any certificate issued by the register of copyrights there was
secured to the plaintiff any exclusive right and privilege in
the said book throughout the United States and elsewhere,
and denies that the books published pursuant to said copy-
right have carried the copyright notice required by law.
7. Defendant denies that the said book was composed,
edited, prepared, arranged, compiled and published from orig-
inal sources of information, and alleges the fact to be that
the said book was composed, edited, prepared, arranged and
compiled by copying from other sources of information, and
especially from defendant's several copyright editions of
"Thomas' Register of American Manufacturers and First
Hands in All Lines," which will hereafter be referred to as
"Thomas' Register of American Manufacturers." Defendant
avers that all of its several editions of "Thomas' Register of
856 SUITS IN EQUITY.
American Manufacturers" have been duly copyrighted by it
by publication of the said books with notice of copyright
thereon, and by compliance with all other formalities required
to secure a valid copyright. Nevertheless, the plaintiff did
unfairly, in violation of the defendant's several copyrights
aforesaid, in the several editions of "Thomas' Register of
American Manufacturers," and especially in the sixth edition,
appropriate, copy, print and publish many of the lists of
manufacturers and others appearing in said "Thomas' Regis-
ter of American Manufacturers," said lists being original in
said "Thomas' Register" and the property of the defendant.
Defendant further avers that the plaintiff has from time to
time continuously used the several editions of "Thomas'
Register," and more especially the sixth edition, in the com-
pilation of the several editions of "Hendricks' Register," and
more specifically in the compilation of the twenty-second,
twenty-third and twenty-fourth editions of "Hendricks' Regis-
ter," instead of resorting to original sources for such infor-
mation, all to the great loss and damage of said defendant.
8. Defendant has no knowledge sufficient to form a belief
as to the number of copies of the alleged book printed and
sold by the plaintiff, or whether or not the printing and pub-
lishing of said book fulfill all the requirements of the copy-
right law, and requires strict proof thereof; but defendant
denies that the plaintiff is the sole and exclusive owner, or
that the said book is of a value of $125,000, but defendant has
no knowledge sufficient to form a belief as to the actual value,
if any, of the publications of the plaintiff as alleged.
9. Defendant admits that it is in the business of publishing
and selling "Thomas' Register of American Manufacturers,
Seventh Edition," but denies the jurisdiction of this court in
dealing with questions of unfair competition between the par-
ties hereto. Answering, however, defendant denies that its
said publication, "Thomas' Register of American Manufac-
turers, Seventh Edition," is a violation or infringement upon
any of plaintiff's rights.
COMMON FORMS USED IN FRAMING ANSWERS. 857
10. Defendant admits that prior to the publication of
"Thomas' Register of American Manufacturers, Seventh Edi-
tion," and in the previous editions of said "Thomas' Register
of American Manufacturers," there had been published no
consolidated list of machinists and founders, and no list of
architects. Defendant, however, has for eighteen years itself
and through affiliated companies published lists of machinists
and founders. Further answering, defendant alleges that it
has always been the policy of the defendant to continually
expand the said publication and to add new lists and new
names as conditions made possible or desirable, and that pur-
suant to said well-established policy extending over a large
number of years defendant did add in the seventh edition a
consolidated list of machinists and founders and a list of
architects, as well as many other lists, such as lists of banks
and boards of trade. It maintains that such lists are original
to itself, but that the question of damages to the plaintiff by
the addition of any such consolidated list of machinists and
founders and list of architects is a question of unfair com-
petition in trade, and as such without the jurisdiction of this
11. Defendant admits that in the year 1914 one S. E. Hen-
dricks and several other employes of the plaintiff, after quit-
ting the employ of the plaintiff, did enter the employ of the
defendant herein; but denies that any unlawful advantage of
the plaintiff was thereby secured to the defendant. Defend-
ant specifically denies the jurisdiction of this court in passing
upon any questions of unfair competition by reason of such
employment of the former employes of the plaintiff, or by
reason of any acts of alleged unfair competition on the part
of defendant's employes.
12. Defendant denies that any list appearing in "Thomas'
Register of American Manufacturers, Seventh Edition," is
copied from the twenty-third or any other edition of "Hen-
dricks' Commercial Register of the United States for Buyers
and Sellers," or that any part was copied therefrom verbatim
or otherwise, and alleges the fact to be that every list con-
858 SUITS IN EQUITY.
tained in "Thomas' Register of American Manufacturers,
Seventh Edition," was secured and compiled by the defendant
herein from other sources than from plaintiff's alleged copy-
right book, and alleges the fact to be that the said list com-
plained of, to-wit, the consolidated list of machinists and
founders, and the list of architects appearing in said seventh
edition, were secured and compiled, corrected and verified,
wholly from sources in which the plaintiff has no right or
13. That defendant has no knowledge sufficient to form a
belief as to any acquiescence to the plaintiff, but denies any
and all wrongful or unlawful acts on its own behalf as against
the rights and privileges of the plaintiff, or privileges or
rights which would or might have been enjoyed by the plain-
tiff had defendant's publication, "Thomas' Register of Ameri-
can Manufacturers, Seventh Edition," not been published.
Defendant further admits that except for defendant's publica-
tion, as aforesaid, plaintiff may have enjoyed larger income
and greater profits from the publication and sale of its said
publication, but alleges the fact to be that any curtailment of
income or profits from the sale of plaintiff's book was due
wholly to the superiority of defendant's publication, and to
the personalities of the persons connected with the publica-
tion of defendant's said register, and on account of the con-
fidence of the subscribing and advertising public in the said
publication and in the said personalities, and is due in no
measure to any unfair or unlawful appropriation of plaintiff's
rights by defendant.
14. Further answering, defendant denies any copyright or
any interest in any copyright in the plaintiff as alleged, and
admits that it has never received from the plaintiff any license
or permission to copy any copyright book of the plaintiff, or
any book of the plaintiff not copyrighted; but denies that it
has infringed any copyright of the plaintiff, or wrongfully,
willfully, fraudulently or unlawfully made or caused to be
made, copied or caused to be copied, printed or caused to be
printed, published or caused to be published, sold or caused
COMMON FORMS USED IN FRAMING ANSWERS. 859
to be sold, advertised or caused to be advertised any copy-
righted or other publication of the plaintiff; or that it is now
continuing 1 all or any of said acts, or has threatened or is
threatening to continue all or any of said acts.
15. Defendant denies that it has or did have at the date of
the filing of the said bill of complaint in its possession a great
number of the seventh edition of the "Thomas' Register of
American Manufacturers," and alleges the fact to be that it
had at that time very few copies of said seventh edition, and
that between the said filing of the said bill of complaint and
the date of filing this answer the said copies had been seized
and taken from the possession of the defendant by the United
States marshal for the southern district of New York, and
are still held in his possession and against the interests of the
16. Defendant denies that any act in the premises has un-
lawfully been to the irreparable or any other injury or dam-
age to the plaintiff.
17. Defendant admits that its said "Thomas' Register of
American Manufacturers, Seventh Edition," contains more
than thirty-one hundred (3,100) pages, and weighs approxi-
mately thirteen and one-half (131/2) pounds, as alleged in
said bill of complaint ; and alleges the fact to be that the said
"Thomas' Register of American Manufacturers, Seventh Edi-
tion," is a publication of great value, carefully and conscien-
tiously compiled and edited, and published at very great ex-
pense, and is recognized as an authoritative list of the several
industries listed therein.
18. Defendant further answering says that this action was
brought by the plaintiff because the superior merit of defend-
ant's publication had seriously impaired the circulation and
advertising value of plaintiff's publication ; and that the super-
seding of plaintiff's publication by defendant's publication
produced animosity on behalf of the plaintiff, and that the
said successful though lawful business rivalry is the sole and
exclusive reason for the animosity displayed on behalf of the
860 SUITS IN EQUITY.
19. Further answering, defendant says that plaintiff well
knew at and before the beginning- of this suit that defendant's
publication was not an infringement upon any copyright of
the plaintiff, and that the said suit was begun by the plaintiff
wholly and solely for the purpose of embarrassing defendant
with its subscribers and advertisers, and for no other purpose,
and with no nope or possible hope of final success in main-
taining or establishing infringement of plaintiff's copyright.
20. Defendant further answering says that it, this defend-
ant, has been seriously embarrassed with its subscribers and
advertisers, and that by reason of the seizure of its said sev-
enth edition, as aforesaid, by the United States marshal for
the southern district of New York, it has been greatly and
irreparably damaged, both in the sale of the present and
future editions of said publication and by reason of the can-
cellation of orders for books and for advertising in said pub-
lication, the exact amount of said loss not being known to
defendant at the present time.
21. Further answering, defendant says that in the further-
ance of the animus on behalf of plaintiff -the said plaintiff did
promptly, following the seizure of the said "Thomas Register,
Seventh Edition," advertise and notify largely defendant's
advertisers and subscribers of the fact of such seizure, and
the application for preliminary injunction, giving the said sub-
scribers and advertisers to understand or reason to infer that
the publication of defendant is and was in fact an infringe-
ment upon the rights and copyrights of the plaintiff, and un-
lawfully published and distributed, and that owners and hold-
ers of the published work of the defendant herein would be
and was subject to prosecution by the plaintiff, or that the
further purchase or possession of any of the publications of
defendant would hereafter subject such owner or holder to
prosecution for infringement of copyright of the plaintiff, and
by such threats intimidated the subscribers and advertisers of
defendant, and caused the defendant thereby great and irrep-
COMMON FORMS USED IX FRAMING AXSWERS. 861
22. That the copies of the said seventh edition of defend-
ant's publication seized by the United States marshal for the
southern district of New York were largely composed of office
copies employed by the defendant in the compilation and cor-
rections for publication in the next succeeding issue of the
said register, and therefore of great value to the defendant,
and many times the value of the said copies for sale, and that
the forcible removal from and detention of the said books
caused a partial cessation of compilation for the next edition
and a delay in the preparation of the copy therefor, and there-
by worked great and irreparable injury to the defendant.
23. That by the seizure of the said copies of defendant's
publication, and by the publication of said seizure by the
plaintiff, and the notification to defendant's advertisers and
subscribers, defendant has been damaged in a very great
amount, which amount defendant can not now determine or
even estimate, but alleges that the said injury to the defendant
is more than fifty thousand dollars ($50,000).
24. That by reason of the statements made by plaintiff to
defendant's subscribers and advertisers, and prospective sub-
scribers and advertisers, defendant has deemed it necessary
to and has secured and provided a bond conditioned to pro-
tect defendant's subscribers and advertisers, the cost of which
said bond adds to defendant's injury and damage.
25. Defendant further answering says that the plaintiff
herein by abuse of process, to-wit, by securing an order to
show cause why preliminary injunction should not issue, put
defendant to great expense in the preparation of opposing
papers, which said expense to defendant is more than one
thousand dollars ($1,000), and that well knowing that the
plaintiff had no cause for preliminary injunction and no legal
or equitable right to the same, did, only a few hours prior to
the hearing on said order, withdraw its said motion for a
preliminary injunction, and that notwithstanding the great
expense and damage suffered by defendant.
26. Upon information and belief defendant alleges that the
financial control of the plaintiff is in the hands of certain
862 SUITS IN EQUITY.
persons or corporations resident in London, England; and
tnat the financial depreciation of plaintiff's publication by
reason of the superiority of defendant's publication caused
the said persons resident in London, England, to severely
criticise the resident managing officers, and that all of the
said several acts of the plaintiff herein alleged by defendant
against this defendant have been for the purpose and only for
the purpose of inducing the London control to believe that
the said depreciation was not due to acts of the resident offi-
cers or to inferiority of the publication, but to unlawful acts
on behalf of defendant herein, and to thereby enable the said
American officers to remain in the control and management
of the said publication, which said control and management,
as defendant is advised and believes, was threatened by the
said London control.
Wherefore defendant prays that said bill of complaint be
dismissed, and that it be adjudged that the defendant has not
infringed any valid copyrights possessed by the plaintiff.
That an order be entered herein requiring the United States
marshal for the southern district of New York to return to
defendant the books seized by and retained in the possession
of said marshal as aforesaid.
That defendant have judgment for damages against the
plaintiff for depreciation of the said books seized and retained
by the marshal, for its damages resulting from such seizure,
for its damages resulting from withholding the said books
from the possession of the defendant, for its damages sus-
tained by the abuse of process in securing order to show cause
why preliminary injunction should not be issued and abandon-
ing the same, for its damages sustained in alienating its ad-
vertisers and subscribers by means of deceptive and mislead-
ing statements circulated broadcast among defendant's adver-
tisers and subscribers by the plaintiff prior to the hearing of
this cause, and for such other and further damages and equit-
able relief as to the court may seem just.
That the defendant have its further judgment for its costs,
attorney's fees and disbursements in this action.
COMMON FORMS USED IN FRAMING ANSWERS. 863
That the prayer for injunction be denied and that such fur-
ther relief be accorded to the defendant in view of the facts
complained of by the piaintiff as to the court may seem just.
E. T. FENWICK, Solicitor for Defendant.
L. L. MORRILL,
(1) See Equity Rule 29.
For treatise on Pleas under old equity rules, refer to 1 Street
Federal Equity Practice, Sees. 825 to 916; 1 Foster Federal Practice,
5th ed., Sees. 173 to 177; 1 Whitehouse Equity Practice, Sees. 242
For demurrers under the old equity rules, refer to 1 Street Federal
Equity Practice, Sees. 917 to 972; Foster's Federal Practice, 5th ed.,
Sees. 365 and 366; 1 Whitehouse, Equity Practice, Sees. 213 to 241.
The answer, under old Equity Rule 39 might embody any defenses
available by plea in bar, without subjecting defendant to discovery
which was the principal reason for the plea in bar. 1 Street Federal
Equity Practice, Sec. 1009.
Equity Rule 29 abolishes demurrers and pleas, and provides that
their ancient offices shall be performed by the motion to dismiss or
by the proper averments in the answer. These two pleadings form the
subject of many decisions and are always treated at length in books
dealing with equity practice. In applying the new rule the courts
lean to the view that all the rights of a party formerly preserved 'by
these pleadings are still maintained and only the manner of assert-
ing them is changed; hence the rules stating the effect of demurring
or making a plea apply to the new practice. Therefore we do not
deal with a group of new rights, but with new methods of asserting
The purpose of the new rule is to simplify and render more certain
the matter of procedure and the comments in recent cases are
In Hyams v. Old Dominion Company, 204 Fed. 681, a motion to
dismiss on the ground that an indispensable party was not joined
was held proper.
In Wilson v. Amer. Ice Co., 206 Fed. 736, a minority stockholder
filed a bill against the corporation and officers and directors to force
the company to declare a dividend upon his preferred stock; defend-
ant filed a motion to dismiss under Rule 29, because it was not alleged
that defendants were not authorized to do the things complained of,
and the bill did not particularly set forth the efforts of complainant to
secure desired action from defendants, and causes of failure to secure
action, or reason for not making an effort as prescribed by Equity
864 SUITS IN EQUITY.
Court allowed the motion after considering the allegations of the
bill of complaint and the law applicable to such cases, but gave leave
to complainant to amend.
In General Bakelite Co. v. Nikolas, 207 Fed. Ill, ruled that motion
under Equity Rule 29 is proper method to raise sufficiency of com-
plaint under Rule 25.
In re Jones, 209 Fed. 717, rule laid down that a demurrer will nob
lie to involuntary petition in bankruptcy since the adoption of Rule
29, which applies equally to such a proceeding on the theory that
proceedings in bankruptcy are equitable in their nature.
In Bogert v. Sou. Pac. Ry., 211 Fed. 776, it is said that a motion to
dismiss must be determined upon bill of complaint, and can not rely
upon allegations of fact in answer. Here there was a motion to dis-
miss and judgment on merits of pleading because of alleged defects
of parties set out in answer, which also set out laches of plaintiff.
A hearing would have been necessary on the motion since testimony
in the shape of a record in another case was relied upon; inasmuch as
the answer was already on file, a denial of the motion could not have
been followed by an order to answer over; hence, the hearing was
postponed to the taking of testimony in the main issue, the court
ruling that there could be no hearing in advance.
In Alexander v. Fidelity Trust Co., 215 Fed. 791, held that the bar
of laches claimed to be presented on the face of the bill may be
raised by motion to dismiss under Equity Rule 29.
In Boyd, et al., v. N. Y. & H. R. Ry. Co., 220 Fed. 174, it is said
that the defendant is required to show all his propositions, whether
of law or of fact, at once in the answer, and the court on a motion to
determine points of law authorized by Equity Rule 29, may consider
whether, in view of the facts alleged, any of the legal theories pro-
pounded can properly be considered before testimony taken, or by
merely taking such evidence as has previously been often adduced in
support of a plea, so that when defendant claims that the complaint
shows no case for equitable relief, he may not complain if the court
considers the admissions or allegations of the answer which explain
or enlarge but do not contradict the allegations of the bill.
In Ralston Steel Car Co. v. National Dump Car Co., 222 Fed. 590,
a motion to dismiss the bill was denied because the bill presented
certain intricate matters of considerable detail which the court thought
should go to answer and proofs, applying the rules necessary to
determine the allowance of a demurrer under old rules to this motion to
In Goldschmidt Thermit Co. v. Primes Chemical Co., 225 Fed.
769, held that Rule 29 does not cover a case where objection is made
to the maintenance of a bill because of the existence of a remedy at
law- This must be asserted under Rule 22 or 23.
In Crim v. Rice, 232 Fed. 570, held that a motion may be made
under Rule 29 to dismiss for failure to comply with Rule 25.
COMMON FORMS USED IX FRAMING ANSWERS. 865
In Wright v. Barnard, 233 Fed. 329, held to be in the discretion of
the court to determine whether to refuse to decide a case on a
motion to dismiss under Equity Rule 29, and to require answer; the
province of the court under this new rule being the same as under
the old rule permitting a demurrer in such case.
In Swift v. Inland Nav. Co., 234 Fed. 375, held that an objection to
misjoinder of defendants can not be taken as a matter of right except
by motion, or plea, or answer; nor can it be insisted upon at trial,
since it must be taken in time or is waived.
The court, however, may raise the question sua sponte any time, on
consideration of the due administration of justice.
In Great Lakes, etc., Co. v. Scranton Coal Co., 239 Fed. 603, the
court says at p. 606: "It (Rule 29) aims at simplifying the pleadings,
not at abolishing the requirement of a special appearance at the
outset, if the personal privilege is intended to be asserted."
In Forbes v. Wilson, 243 Fed. 264, a case of a stockholder's bill
under Equity Rule 27, motion to dismiss was based on (a) failure