Page:Federal Reporter, 1st Series, Volume 8.djvu/720

 706 FEDERAL «EtOBTEE. �The patents are not showii' to be oonneeted With each other in every infringing machine, or to be used at -the same time in any infringing machinei- The cobtlroveray in this Suit appears from the bill to be of Buch a characterthafe' prejudice will resuit to the defendant from being called'on- to deftemd injone suit against 38 claims in 6 different patents, no two ofi^bich claims, so far as the bill shows to the con- trary, are employed dif any one machine. On this gi^o'und the bill m^ust be held bad- ' ' i �".The plaintiff oontendffthat the putting in of an answer tb the whole bill is a>TiyaiVer<of/ the deaiurrer. Bule 32 iii equity permits a de- ibiirreir to & .pait'ef abili, a plea to a part, and an answer as to "^he residue. If, dmEIiedly, that rule iorbids a detourrer to the whole bill, and, at the same time, an answer to the wKole bill, the plaintiff's remedy iiSjby-moTihg to etrikeont either the answer or the demurrer, or to compel 'the defendant to elect which he will abide by, By go- ing to- argument on the demurrer the plaintiff waives the benefit'of the objection now.:takeni if otherwise he would have it. Moreover, rul$;37 in eqaity provides that "no demurre^r or plea shall be held bad and overrulfla mpon argument, only beoause the ahswer bf the defend- ant may, extend t© some part of the same matter as may be eoveted by>sueJi deniurrer or* plea.''^ 'IfhiS rtue was first inade in March, 1842, to take effect August il, ISea'/ ' 17 Pet. kvii. There was no such rule in the prior rules of March, 1822, (7 Wheat. v,) although ruTe 18 in such prier rules was the same as the above present rule 32. Under the rules. of 1832, nol bnly had it been held (Furguson v. O'Hara, Pet. 493) that where there was a plea joining to the whole bill, and aleo an answer to the whole bill, the court would, on the plaintiff's motion,^ disallow^ithe plea on the ground of its being over- ruled by the answer, but'iJxiidge Story had held, in 1840, in Steames y. Page, 1 Story, 204, that -where a plea stated a- ground why the defendant should not go into a full defence, andyet the defendant answered putting in a full defence, it would be held on the argument ,pf the plea that the answer overruled the plea. Then rule 37 was made. It applies to the:i present case. The demurrer is allowed, with costs. ��� �