48 FEDERAL nmroirrmn.
fringement of his patent. To this bill the defendants Bled a plea
setting up the same matters of defense now relied on. To this plea
the plaintiff did not reply, nor did he set down the same for argu-
ment. Wherefore a decree dismissing the bill was entered under,
and in the terms of the thirty-eighth rule in equity, viz. :
"If the plaintiff shall not reply to any plea, or set down any plea or demur-
rer for argument, on the rule-day whenthe same is filed, or on the next suc-
ceeding rule-day, he shall be deemed to admit the truth andsuiliciency thereof,
and his bill shall be dismissed as of course, unless a judge of the court shall
allow him further time for the purpose."
The defendants plead the decree entered under this rule in bar of
so much of the present bill as relates to the Wharton McKnight, or the
use of the patented invention thereon. Whether this position is well
taken is the Bret question in the case. That such decree is not con-
clusive, is, I think, evident from the authorities, they all agreeing that
in order to constitute the former judgment or decree a" bar, it must
t appear thatthe point in issue was judicially determined after a hear-
ing, and upon consideration of the merits. 1 Greenl. Ev. §§ 529,
530; Story, Eq. Pl. § 793; Badger v. Badger, 1 Cliff. 237, 245;
Haws v. Tiernan, 53 Pa. StL 192; Hughes v. U. S. 4 Wall. 232. In
Homer v. Brown, 16 How. 354, it was held that a judgment of non-
swit, entered upon an agreed statement of facts submitted to the court
for decision, was not a bar to a subsequent suit between the same
parties, and for the same cause of action. Says Gmmvosn, J., in
Badger v. Badger, supra, if the order of dismission was not upon the
merits of the bill, it matters not whether it was with or without the V
consent of the complainant. And Mr. Justice FIELD says in Hughes
v. U. S. supra, "if the Brst suit ’* * * was disposed of on any
ground which did not go to the merits of the action, the judgment
rendered will prove no bar to another suit." 4 Wall. 237. Now,
the primary purpose of rules of court being to regulate the practice,
and promote the dispatch of business, the intention to create an
estoppel ought not to be lightly imputed to the rule now under con-
sideration. Such effect, it seems to me, is foreign to the object to be
subserved. True, the rule declares that the plaintiff so in default
"shall be deemed to admit the truth and suHiciency" of the plea, but
this implied admission is merely for the occasion, and to open the way
. for a decree of dismission "as of course," without trial, hearing, or
adjudication,——a decree which is the equivalent of a judgment of non-
suit at law for want of a narr or other default of a like nature.
It appears that the defendants are not only using the invention on
the Wharton McKnight, but that they have built another boat, the
- , Little Ike, upon which they intend (it is admitted) placing and using
a sand and gravel separator constructed pursuant to Keller’s patent;
and they defend generally, upon the ground that Pfeil is invested
with a license to make, use, and sell the patented machine. No ex-
press license is shown and none isasserted in view of the proofs. The