Page:Federal Reporter, 1st Series, Volume 2.djvu/240

 MATTHEW3 V. L. & G. MANUf'G CO. 233 �has made, constructed, used, and vended to others to be used, soda water and other fountains, eaeh made according to, and employing and containing, the inventions described and claimed in each of the above-named letters patent and re- issued letters patent." �The plaintiff put in a general replication to the plea, in the form of the usual general replication to an answer, suh- Btituting the word "plea" for the word "answer." Both parties bave treated the putting in of this replication as tak- ing issue on the plea, within the meaning of rule 83, in equity, and bave taken proofs on the question as to whether a certain structure made by the defendant contains mechanism covered by a claim or clause in each of the five patents sued on, The testimony for the plàintiffs is addressed to establishing the f act that each of the five patents is infringed by such struc- ture. The testimony for the defendant ignores three of the patents, and is addressed to establishing the fact that two of the five patents are not infringed by such structure. The case has been heard on these pleadings and proofs. The plaintiff asks for a decree overruling the plea, with costs, ou the ground that the defendant's structure infringes each of the five patents, and granting the injunction against infringe- ment which the bill prays for, and refusing to the defendant leave to answer the bill. The defendant asks that the bill b» dismissed, with costs, on the ground that the defendant has proved that two of the patents are not infringed by the de- fendant's structure. �The defendant, contending that two of the patents are shown not to bave been infringed, invokes the rule that the plaintiff, by replying to the plea, admits it to be a valid plea, if true, and thus admits that he cannot recover in the suit unless the defendant's structure embodies an invention claimed in each one of the five patents. As setting forth this rule, the cases of Hughes v. Blake, 6 Wheaton, 453, 472; lîhode Island v. Massachusetts, 14 Peters, 210, 257; and Myers v. Dorr, 13 Blatchf. G. G. E. 22, 20, are cited by the defendant. The general rule is, undoubtedly, as'stated; but m this case the plea does nothing but deny au averment ûf ����