Nourse v. Allen

NELSON, Circuit Justice. I. The demurrer to this bill is grounded mainly upon the multifariousness of the matters set up iu the bill, namely, four distinct and several patents for as many improvements entering into the construction of what is claimed to be a perfect reaper. These improvements, as patented, are not limited to the improvement of any particular machine, but are intended to be used in any or all of this class. Nor are the improvements, as they enter into the construction of the machine, necessarily connected together, in practical operation and use. Any one or more of them may be omitted. Hence, it is argued, that the bill sets up distinct and independent matters, wholly unconnected, by reason whereof the defendant- is compelled, in his answer, to unite different and distinct matters, depending upon different and distinct proofs, thus complicating and embarrassing the defence. It is, undoubtedly, true, that the four different patents set forth in the bill, upon which the defendant is' sought to be enjoined, and for the alleged infringements of which damages are claimed, call for separate and distinct defences; and the objection to the bill on the ground of multifariousness would, in a general sense, seem to be well founded, within the settled rules of equity pleading. But, on looking at the case made in the bill, I am inclined' to think the objection not maintainable. The bill charges, that the machine made and used by the defendant, and sought to be enjoined, contains all the improvements embraced in the several patents, and, hence, the act of making, vending or using a single machine constitutes an infringement of all of them. The several improvements being capable of a connected use, and being thus connected by the defendant, the convenience of both parties, as well as a saving of expense in the litigation, would seem to be consulted in embracing all the patents in one suit. A court of chancery allows distinct and separate causes of complaint between the same parties to be joined in one suit, in order to avoid multiplicity of actions, unless it is apparent that the defence will be seriously embarrassed by confounding different and unconnected issues and proofs in the litigation. In this case, although the de460 fences, as respects the several improvements, may be different and unconnected, yet, according: to the allegations in the bill, so far as the question of making, vending or using the machine is concerned, the infringement of ail the patents is involved, and, to this extent, they are connected with each other. I agree that, if one of these improvements had been charged to have been used upon one machine, and another upon a different machine, there would have been much force in the objections taken to the bill. But, in the aspect in which the case is thus presented, I think they are not well founded. It has not been unusual, in actions at law, in cases of alleged infringements of patents, to count upon two or more patented improvements upon the same machine. II. It is also objected, that the bill does not set forth a complete title in the plaintiffs to the several patents. The pleader has set out a deduction of the title by numerous assignments, which make the question of title exceedingly complicated; but, as far as I have been able to look into it, I have discovered no defect. I think this deduction of title unnecessary, and that a simple averment that the title to the patents was vested in the plaintiffs would have been sufficient. Such an averment is found in this bill, in addition to the special title set forth. The demurrer is overruled, and the defendant is directed to answer,