Nellis v. McLanahan

McKENNAN, Circuit Judge. The defendants have demurred to the bill in this case on the ground of multifariousness. The bill sets up three distinct patents, viz.; A reissue to Edward L. Walker for an improvement in hay-elevators, dated December 18, 1866; a reissue to Seymour Rogers for an improvement in hay-elevators, dated May 29, 1866; and an original patent to Seymour Rogers, for an improvement in horse hay-forks, dated March 26, 1866, — the title to all of which is vested in the complainants by various assignments. These improvements are not necessarily embodied in the construction and operation of any one hay-fork, and unless they are identified by the frame of the bill the defendants cannot be subjected to the embarrassment of confounding defenses, which may be severally applicable to each patent. The bill charges that the defendants are now constructing and using, and vending to others to be used, hay-forks of the kind and description known in the trade as “harpoon horse hay-forks,” in some parts thereof substantially the same as in tlie said several letters patent mentioned. There is no explicit averment here that forks, made and sold by the defendants contain all the improvements embraced in the complainants’ patents, and the interrogatories clearly indicate that a discovery is' sought touching only the several infringements of each patent. The bill, therefore, does not show any reason why the joining of multifarious causes of complaint should be allowed, and the demurrer must be sustained. [For another case involving this patent, see Nellis v. Pennock Manuf’g Co., 13 Fed. 451.]