Wilder v. Gayler

NELSON, Circuit Justice. The matters set forth in the special pleas are not the subject of a defence in that form of pleading; but stand upon the general issue with the notice prescribed in section fifteen of the patent act of 1S30. Most of the matters required by that section to be set forth in a notice could be given in evidence under the general issue without notice, were it not for the section; or, to speak more accurately, are involved in the general issue. They are affirmative facts, which the plaintiff is bound to maintain as essential to the validity of his patent. But, to guard against surprise on the part of the plaintiff, the section re 1220 quires that notice shall be given oí the several grounds therein specified, if they are intended to be relied on in defence. This however does not enable the defendant to plead them specially as matters of defence. They must be presented in the manner prescribed by the act. There may, however, be grounds of defence not specified in the fifteenth section, which might be set up in bar of the action, by special plea. [For other cases involving this patent, see note to Rich v. Lippincott, Case No. 11,758.] The defendants may retain the plea of the general issue, and the notice which accompanies it. and may add mew matter to the notice by way of defence, but the special pleas must be stricken out with costs.