Page:Federal Reporter, 1st Series, Volume 8.djvu/718

 704 FEDERAL REPORTBR. �suit against the defendant, substantially avers that the bill is brought for several matters and causes which are separate and distinct one from the other, and are not alleged to be conjointly infringed by the defendant. This means that the patents sued on are distinct one from the other, and that they are not alleged to be conjointly in- fringed in any one article which the defendant has made or used or sold. This averment of the demurrer is true. �Where there is a joinder of distinct claims between the same par- ties, it has never been held, as a general proposition, that they can- not be united, and that the bill is, of course, demurrable for that cause alone. Nor is there any positive, inflexible rule as to what, in the sense of courts of equity, constitutes a fatal multifariousness on demurrer. A sound discretion is always exercised in determining whether the subject-matters of the suit are properly joined or not. It is not very easy, apriori,to say exactly what is or what ought to be the true line regulating the course of pleading on this point. AU that can be done, in each particular case as it arises, is to consider whether it comes nearer to the class of decisions where the objection is held to be fatal, or to the other class, where it is held not to be fatal. In new cases the court is governed by those analogies which seem beat founded on general convenience, and will best promote the due admin- istration of justice, without multiplying unnecessary litigation on the one hand, or drawing suitors into needless and oppressive expenses on the other. Story, Eq. PL §§ 531, 539; Horman Patent Manufg Co. v, Brooklyn City R. Co. 15 Blatehf. 444. �We are not without caaes on the subject, in suits on patents, in this country. In Nourse v. Allen, 4 Blatehf. 376, in 1869, before Mr. Justice Nelson, a bill on four patents was held good, on demurrer, where it alleged that the machine sued oontained all the improve- ments in all the patents. The court thought that the convenience of both parties, as well as a saving of the expenses in the litigation, seemed to be consulted in embraoing all the patents in one suit, in such a case ; and that although the defenoes, as respected the several improvements, might be different and unconnected, yet the patents were connected with each other in each infringing machine. �In Nellis v. McLanahan, 6 Pieh. Pat. Cas. 286, in 1873, before Judge McKennan, it was held that where a suit in equity ia brought for the infringement of several patents for different improvements, not necessarily embodied in the construction and operation of any one machine, the bill must coutain an explicit avermeut that the infring- ��� �