The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1895-06-16

In the case of the Gold Il Silver
Extraction company VS.. Mercur Gold
Mining and Milling company, the de-
murFer as to first exception was sus-
tainkl and the demurrer as to the
second exception was oVerruled. Ten
days were allowed to amend and ten
days allowed the defendant to plead
after amended complaint is filed.
As the case is of great Importance
and interesting to mining men, The
Herald gives Chief Justice Merritt's
ruling on the points raised in full, as
follows:
In %he district court of the Third ju-
dlclal district of the territory of
The Gold and Silver Extraction Com
pany of America Qimited), plaintiff. vs..
the Mercur Gold Mining and Milling
company, ct al, defendants.
The plaintiff in this case filed its bill
against the defendants, praying for
an injunction against defendants en-
Joining them from infringing two GER
tain letters patent of the United States
heretofore granted to the assignorS
and predecessors in interest of plain
Tiff, and for damages for past infringe
ments
1t appears from Inc complaint LudL
the plaintiff is the owner of two pat
ents Of the United states. one issued
10 John Stewart Macarthur, Robert
w. Forest and William Forest, on the
x4th day of May, 1889, and the other
iASued to JOh Stewart Macarthur on
the Gath day of December, 1889.
The first of these patents is for a
process for the extraction ofSgOld and
silver from ores containing base met
ais, by the use of a dilute solution of
cyanide. The second patent is for a
machine or mechanical device called
Il m~etallurgicaI filter. This filter is
used for precipitating gold and silver
from the solution, but in its use it is
not confined TO the cyanide process,
or used in connection herewith eXclu-
sively, but may be advantageously
employed las set forth in the Specifica-
tom for pre~cipitating the precious
metals obtained by means Of many of
the vSell-knOWn processes for the eX-
tsss5ss. Of gold and silver from their
The Gompiaint in this action contains
but oiSe count. 1 am of he opinion
that the pleadings in this cause n all
proceedings thereon must be governed
by the procedure and practice under
the code of Utah.
Defendants demurred TO the COM
plant on the grounds that there was
q m~iSJoinder Of causes of action, in
that two causes Of action had been i'm
properly united in said complaint.
Second-That two causes of action
had been improperly united in one
Oun in SAT- complaint.
Third That the part of the COM
plant based upon the alleged infringe
ment Of the letters patent for the eX-
traction of gold and silver from ores
containing base metals, fails to state
a cause of action against defendants,
or either of them.
Plaintiff insists that there is but one
CAUSE of action stated in the com
plaip.
IIthe defendants had infringed each
~ the letters patent in the manner
charged in the complaint, there is no
doubt in my opinion that the plaintiff
might have maintained one action
against the defendants for the in
fringement Of one OF these patents and
another the independent action at the
same time for the infringement of
the other; hat the tendency of the
one could not have been successfully
pleaded in abatement to the other, |
and that a judgment in one whether
in favor or against the plaintiff could
not have been pleaded in bar of the
other.
Subjected to this test it clearly ap-
pears that the complaint here contains |
Two causes of action. They are causes
~ action which, in my opinion, may
be properly united in the one COM
lI-aAA4As ia IL AAOoAAA ~ 91IAA 0ACA1
stated; that is TO say. III separate
counts, and the demurrer is sustained
rs to this ground.
The first Of the letters patent men,
tioiGa1 in the complaint is for a process
for Extracting gold and silver from
ores containing base metals. The de-
PENDANTS claim that as to these letters
patent the COMPLAINT fails to state a
cause of action, and in support of this
ground of demurrer, claim that it is
not alleged in the complaint that the
ores treated by defendants are ores
containing base metals.
There is no such direct inc positive
allegation. but as I read the complaint
this IS inferentially alleged. The de-
feet is one that could not be reached
by a general demurrer, and as TO this
ground the demurrer is overruled.
Attest. MERRITT,
DAVID e. DUNBAR. Judge.
Clerk.
/=oo1A