Page:Federal Reporter, 1st Series, Volume 5.djvu/216

 204 FEDERAL REPORTER. �leflye to amend His «nswer as prayed in' saifl petition fôr a rehearing. By this order it was intended and understood that the controversy between the parties should be re-opened, but only to let in the newly-discovered matter, and to the estent only that the Selden patent might be thereby aflfected. The defendant filed an amended answer, which set up the new matter relied on to defeat the Selden patent, and also em- braced ail the original defences to both patents. The com- plainant then filed a motion to strike the answer from the files for the reason that it was not limited in form and sub- stance to the new matter, and therefore was not, as it is claimed, such an answer as the order for a rehearing author- ized. The defendant then moved to disiniss the suit, under the sixty-sixth rule in equity, for the reason that no replica- tion had been filed to the amended answer, and this is the motion now to be decided. �It is claimed by counsel for defendant that if the complain- ant desired to raiise any, question as to the regularity or suf- ficiency of the amended, answer, he should bave excepted to it ; that a motion to strike from the files is irregular and oan- ndt be entertained; and that as the answer was not excepted to,'/^^nd a replication was not filed, he is entitled to have the suit dismissed, as of course, under the rule. �It is not intended now to pass upon the merits of the motion to strike the amended answer from the files. Tho only question to be presently determined is, is the defendant entitled, in the face of that motion, to bave the suit dismissed for want of a replication? In other words, is the complain- ant in such default as to entitle the defendant to such action by the court as he invokes ? It must be presumed that the motion to strike the amended answer from the files was made in good faith, and an inspection of the answer shows that it contains ail the defences which appeared in the original answer, in addition to those embraced in the new matter, on account of which a rehearing was granted. Whether this form of pleading, in the present attitude of the case, be reg- ular or not, I do not, as before remarked, now decide. But it seems very clear that the court cannot treat the motion to ����