ROBINSON v. CHICAGO RYS. CO., 174 F. 40

QUARLES, District Judge (after stating the facts as above). The complainant, who is the patentee, has undertaken to conduct his own case, and has been drawn into a technical contest which has resulted in disaster to him, and has produced a record so complicated that it is not easily disentangled. This record well illustrates the futility of any attempt on the part of one not learned in the law to pilot his own case through the mazes of the procedure of the English Court of Chancery, which system is still retained in the federal courts. It would be fruitless to follow the several stages of the technical combat.

It is sufficient to state that a motion was made by the defendants to strike the second amended bill from the file^, 'because the amendments had not effectually cured the defects pointed out by the demurrer and held fatal to the amended bill. For some reason the court preferred that the question should be presented in the form of a demurrer, and thereupon made the order of November 23d, providing that the pending motion should stand as a demurrer, and that the certificate and affidavit required by the rules might be attached thereto instanter.

Whether it is a legitimate exercise of judicial power to transform a motion into a demurrer, we do not decide; but we are unwilling to sanction the procedure adopted by the court whereby a new-made demurrer was sustained instanter, and whereby the second amended bill was stricken from the files, all of which was accomplished without debate and in the twinkling of an eye. The familiar requirement of chancery practice that every demurrer must be set down for argument on a day. certain, when the respective parties may be heard thereupon, cannot be summarily dispensed with.

If the order was effectual to transform the motion into a demurrer, it should have been treated with the ceremony and respect due to a demurrer, under our familiar practice.. Neither could it at the same time discharge the dual function of a motion and justify an order striking the second amended bill from the files, so that there remained nothing in the record (to amend by; the earlier bills having gone out of the case by former' action of the court.

Furthermore, the decree fails to disclose whether the action was dismissed for want of equity, or because of one or more of the several irregularities pointed out as the grounds of demurrer. It is probable that the decree as entered would stand as a bar to any further action or proceeding by the complainant. This seems to be a severe penalty for, the complainant to pay for his lack of legal knowledge.

The law allows him to appear in his own .proper - person, and the court is probably justified within reasonable limits in protecting a meritorious cause of action, when imperiled solely by lack of skill on the part of complainant to meet technical defenses interposed by astute counsel. It will be observed that .the second amended bill is a third attempt on the part of complainant to frame a suitable bill for infringement, which among members of the profession is not esteemed a difficult task.

We have been led to consider the numerous technical objections that are urged to this second amended bill, and we feel justified in admonishing the complainant that his task has not yet been successfully accomplished. ■ He has become enmeshed in technical difficulties from which we would be glad to relieve him, so far at least as to preserve any meritorious cause of action he may have upon either of his letters patent. During the argument the complainant made proferí of his letters patent, which on their face'would seem to indicate that they are not capable of conjoint.use in any single device.

We notice, also, that the second amended bill contains no averment that the two inventions are capable of conjoint use, nor that the defendant has employed them conjointly in any alleged infringing device. Therefore the objection of multi fario'usness seems to be well taken, and would seem to that extent to justify an order sustaining the demurrer.

In 1 Foster’s Federal Practice (3d Ed.) § 77, the law is stated as follows: “A bill to enjoin the infringement of several distinct patents has been held multifarious.; but if all the patents are infringed in the use or manufacture ■of a single machine, etc., and it is so alleged, the bill is good.” It has been said that complainant should aver that said inventions are capable of conjoint as well as separate use, and are so used by defendant. Perhaps the leading case upon the subject is Hayes v. Dayton (C. C.) 8 Fed. 702, 705, where the doctrine as stated by Foster is held to be the law. See, also, Gamewell v.

City of Chillicothe (C. C.) 7 Fed. 353; Barney v. Peck (C. C.) 16 Fed. 413; Lilliendahl v. Detwiller (C. C.) 18 Fed. 176; Louden v. Montgomery Ward (C. C.) 96 Fed. 232; Union Switch Co. v. Philadelphia R. R. Co. (C. C.) 68 Fed. 914; Union Switch Co. v. Philadelphia R. R. Co. (C. C.) 69 Fed. 833; Kaiser v. Bortel (C. C.) 162 Fed. 902, 907. _ It has also been held that the objection of multifariousness is not obviated by the fact that two or more patents are employed in the same system of railway, unless they act together, and practically constitute a single device. Consolidated Electric Light Company v.

Brush-Swan Electric Light Company (C. C.) 20 Fed. 502. Considering all the circumstances, we feel inclined to afford the complainant further opportunity to have framed a suitable bill based upon either of his letters patent, and thus obviate numerous technical objections which now confront him.

We have therefore concluded to direct an amendment of the decree by the insertion of a clause therein to the effect that the cause is dismissed on the ground that the bill of complaint is multifarious, and also by a clause to be inserted therein that the decree of dismissdl is without prejudice to the right of complainant to institute such suit or suits, either at law or in equity, based upon either or both of his letters patent, as he may be advised. And after such amendments the decree of the Circuit Court will be affirmed. And it is so ordered.