same court in Thompson v. American Bank Note Co., on an application for an injunctioa-pendente lite; and the question as to the evasion of this claim of the patent by this modification was considered, and held against the defendant, and injunction awarded. 85. Fed. Rep. 203. The same case has since been brought to final hearing before that court, and a dereqdered, finding that the machine, as modified, still infringes the third claim of the patent. 89 Fed. Rep. 274. It also appears that the defendant, as the manufacturer of the machines in question in the Gildersleeve and American Bank Note Co. Cases, assumed and conducted the defense, and that the same proof which is now in the record in this Case was put in and considered in both of these prior cases. Hence, waiving all question as to whether defendant is estopped in this case by these prior decisions, I have no doubt that under the rule of comity, which I have always attempted to apply in cases of this character, this court should be governed by the decisions on the same patent in prior cases, where the proof is the ·same. A decree may therefore be entered in this case finding that the third claim of complainants'patent is valid, and that the defendant infrinp;es the same, and referring the case to a master to ascertain and report the damages.
AldERICAN LoAN &.TRUST
EAST & WEST
Ry. CO. OF ALABAMA d ale
(Otrctat Court, N. D. Alabama, S. D. November 11, 1889.)
EQUITY. PRAOTICE-EXOEPTIONS TO ANSWER.
When complainant allowl the time fixed by rule of court fqr setting down exceptions :Illed to an answer for scandal, impertinence, and insufficiency to pass by. and the court, after examining the exceptions, is of opinion that the cause will be more speedily determined by a withdrawal of the exceptions, the time will not be enlarged, though good cause be shown, but complainant Will be allowed to withdraw the exceptions, and reply to the answer.
In Equity. On exceptions to answer. Robert Ludlow Fowler, for complainant. Webb Tillman, for defendant Schley.
PARDEE, J. In this cause, defendant James W. Schley filed an 8118Wer in which he reiterated certain matters before pleaded by him in a certain plea which. had been overruled by the court. To this answer complainants filed exceptions on the 3d day of June, 1889, in time under the rules, as follows:
II (1) For that the said defendant hath answered to the btu, 81 matter of defense, the same identical matter heretofore introduced by said defendant; in his. pleas to the bill in this suit; which.pleas. being brought to a hearing, have been bad, and overruled for inSUfficiency. Therefore, having due reference to the said pleas. and the order and decree thereon, the ant excepts to the follOWing part of said answer asinsutJicienti that 18 to
AMERICAN LOAN & TRUST CO. tI. EAST & WEST BY. CO. OF ALABAMA.
say: 'And this defendant is informed and beHeves, and upon such information states, that at the time of the creation and acceptance by complainant of the said trusts, as well as at the present time, and at the time of tiling its said bill, the said cotpplainant had no known place of businpss, and no authorized agent in the state of Alabama for the purpose oftransacting its said business; and that by section 4 of article 14 of the constitution of Alabama, which was then and now, in force. it is prescribed that no foreign corporation shall do any business in this state withol!t having at least one known place of business, and an authorized agent or agents, therein; and therefore this defendant pleads andsa.yil that the said complainant, was not authorized by the laws of Alabama, within the state of Alabama, to accept and execute said trusts, and maintain this or any other suit within the state of, Alabama, either in the state courts or in the courts of the United States, for the enJorcement of said trust; and this defendant now pleads said disability in abatement of this suit.' (2) And the complainant furl her excepts because that the said defendant hath reiterated said matter so above excepted to in the second paragraph of hifi said answer, hath not to the best and utmost of his knowledge set forth the alleged agreement referred to by him as' Exhibit D,' attached to the dependent bill filed by Grant Brothers. (3) And the complainant further excepts to the following portion of the third paragraph of said answer of Schley as scandalous, impertinent, ancl insufficient, to-wit, the averment that by acceptance of the trust referred to in the bill of complaint said trust company committed 8 fraud upona confiding public. (4) And the complainant further excepts to all the matter contained in the third paragraph of the said answer (excepting the denials only) as impertinent and insufficient, particularly so much thereof as relates to the manner in which the original capital stock of the mortgagor company is alleged to have been paid up." No further steps were taken in the matter until after the rule-day in July, and the rule-day in August following. In August the delendant moved the court for an order dismissing the exceptions on the , ground that the complainants had not complied with rule 27, in this: that they had not obtained an order referring said exceptions to the master to examine and report on the same 'On or before the succeeding ruleday, which was on the first Monday in July, 1889. During the same month comes. the complainant, and sets down for hearing on the next succeeding rule-day thereafter the exceptions to the insufficient answer of Schley, and asking, if such exceptions be not allowed, then for leave to withdraw said exceptions, and file a general replication. Both of these last motions are now submitted for the determination of the court. Under equity rule 27, which relates to ,scandal and impertinence, and rule 63, which provides for setting down exceptions for insufficiency, the complainant was too late. It may be that under rule 63, and the general equity practice, the court could now, upon cause shown, enlarp;e the time for filing exceptions, so that the complainant could raise the questions which are sought to be raised by his exceptions to the answer; but I have read the exceptions, and conclude that the case will be best speeded by not enlarging the time to file exceptions, but byallowing the complainants to withdraw all exceptions on file, and file a general replication by the first rule-day, which will be the first Monday in December next. v.40F.no.8-25