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Opinion of the Court.

issued July 1, 1872, by the city of Tioga. Each bond stated that the city of Tioga was “indebted to the Tioga Flouring Mill Company, in the sum of five hundred dollars, lawful money of the United States, with interest from the date hereof, at the rate of ten per cent per annum, as provided by law, and payable semi-annually, as per interest coupons hereto attached, the principal being due in ten years from date hereof and with the interest thereon payable at the office of the Farmers' Loan and Trust Company in the city of New York, to the bearer."

On the 27th of July, 1888, Trader served a notice on the city of Chanute, addressed to the mayor and councilmen of the city, requesting them to levy a tax on the taxable property within the city to pay and satisfy the judgment. It does not appear that any execution has been issued on the judgment.

On the 9th of July, 1889, Trader applied to the Circuit Court for a writ of mandamus requiring the officers of the city to levy a tax to satisfy the judgment. An alternative writ was issued on that day. In answer to the writ the city set up, by way of plea in bar, that the original judgment was void because the Circuit Court had no jurisdiction of the subject matter of the action, as appeared from the petition in it, which set forth a copy of one of the bonds sued on. The point urged was that the bond was not payable to the Tioga Flouring Mill Company or order, nor to bearer, and that only the interest was payable to the bearer.

On a hearing on the writ and return, the Circuit Court, on October 14, 1889, rendered a judgment granting a peremptory writ commanding the officers of the city to levy the tax. A bill of exceptions was allowed, and the city has brought a writ of error. The defendant in error now moves to dismiss the writ of error and unites with it a motion to affirm the judg. ment.

Subdivision 5 of rule 6 of this court (108 U. S. 575) was first promulgated November 4, 1878, 97 U. S. vii. It reads as follows: “ There may be united, with a motion to dismiss a writ of error or an appeal, a motion to affirm on the ground

Opinion of the Court.

that, although the record may show that this court has jurisdiction, it is manifest the writ or appeal was taken for delay only, or that the question on which the jurisdiction depends is so frivolous as not to need further argument."

At the same term, in Whitney v. Cook, 99 U. S. 607, this court, speaking by Chief Justice Waite, said that the rule implied that there should appear on the record “at least some color of right to a dismissal.” He added: "Our experience

“ teaches that the only way to discourage frivolous appeals and writs of error is by the use of our power to award damages, and we think this a proper case in which to say that hereafter more attention will be given to that subject, and the rule enforced both according to its letter and spirit. Parties should not be subject to the delay of proceedings for review in this court without reasonable cause, and our power to make compensation to some extent for the loss occasioned by an unwarranted delay ought not to be overlooked.”

The practice of not entertaining a motion to affirm unless there is some color of right to a dismissal has since been frequently sustained by this court. Hinckley v. Morton, 103 U. S. 764; School District of Ackley v. Hall, 106 U. S. 428; Davies v. Corbin, 113 U. S. 687; Walston v. Nevin, 128 U. S. 578; New Orleans v. Construction Co., 129 U. S. 45; The Alaska, 130 U. S. 201.

In Micas v. Williams, 104 U. S. 556, there was a motion to affirm united with a motion to dismiss a writ of error. The affidavits in opposition to the latter motion showed jurisdiction, as to the amount involved, though on the record as it stood when the motion was made there was color of right to a dismissal. But the court affirmed the judgment on the ground that the writ was taken for delay only.

In The S. C. Tryon, 105 U. S. 267, there was a motion to affirm a decree united with a motion to dismiss the appeal in an admiralty suit. The ground for making the motion

. to dismiss was that there was no bill of exceptions but only a finding of facts and conclusions of law. The court overruled that ground, but it is difficult, from the report of the case, to see what color of right there was to a dismissal. Yet

Opinion of the Court.

it affirmed the decree on a consideration of the findings of fact.

In Swope v. Leffingwell, 105 U. S. 3, there was a motion to affirm united with a motion to dismiss a writ of error to a state court. The motion to dismiss was made on the ground that there was no Federal question involved. The court held that it had jurisdiction, but affirmed the judgment on the ground that the case on the merits was governed by previous decisions.

In the present case there does not appear to be any ground for contending that this court has no jurisdiction; yet we are entirely satisfied that the reasons assigned for taking the writ of error are frivolous, and that it was taken for delay only. The principal of the bonds is payable to bearer as well as the interest. The principal is stated to be due in ten years, and, with the interest, to be payable to the bearer. This is too plain for discussion, and disposes of the point that the original payee in the bonds was a citizen of Kansas, and thus of the same State with the debtor, and could not have sued on the bonds in the Circuit Court, and so the plaintiff could not.

But without putting a different interpretation on subdivision 5 of rule 6 from that which has hitherto prevailed, we are of opinion that the judgment in the present case must be affirmed. A proceeding by mandamus to compel the levy of a tax to pay a judgment is in the nature of execution. The rights of the parties to the judgment, in respect of its subject matter, were fixed by its being rendered. If the prosecution of writs of error to the execution of process to enforce judg. ments is permitted when no real ground exists therefor, such interference might become intolerable. This court, in the exercise of its inherent power and duty to administer justice, ought, independently of subdivision 5 of rule 6, to reach the mischief by affirming the action below. This is a proper case for doing so.

Judgment affirmed.

Opinion of the Court.

OREGON IMPROVEMENT COMPANY v. EXCELSIOR

COAL COMPANY.

FOR THE

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES

NORTHERN DISTRICT OF CALIFORNIA,

No. 1198. Submitted November 11, 1889 - Decided November 25, 1889.

Where a complaint in an action at law, for the infringement of a reissued

patent for an invention, avers that the reissue is “ for the same invention," as the original patent, and the answer denies “each and every, all and singular, the allegations” of the complaint, it is error, on the trial, to exclude the original patent from being put in evidence by the defendant.

The case is stated in the opinion.

Mr. Sidney V. Smith and Mr. John A. Wright, for plaintiff in error, submitted on their briefs.

Mr. J. J. Scrivner, for defendant in error, submitted on his brief.

MR. JUSTICE BLATCHFORD delivered the opinion of the court.

This is an action at law brought by The Excelsior Coal Company, a corporation, against The Oregon Improvement Company, another corporation, in the Circuit Court of the United States for the Northern District of California, for the infringement of a reissued patent.

The complaint avers that, on the surrender of the original patent, a new patent was issued to the patentee “for the same invention, for the residue of the term then unexpired for which the said original letters patent were granted.” The answer of the defendant denies “each and every, all and singular, the allegations” contained in the complaint. The case was tried before a jury, and resulted in a verdict of $ 7000 for the plaintiff, for which, with costs, judgment was entered. To review this judgment the defendant has brought a writ of error.

Syllabus.

There is a bill of exceptions, which states that the plaintiff read in evidence, without objection, the reissued patent, a copy of the specification of which with the drawings is set forth, and put in other evidence tending to show its right to recover damages; that the defendant, “to sustain the issues on its part,” offered in evidence a duly certified copy of the original patent, a copy of which with the drawings is set forth; that the plaintiff objected to the introduction of the original patent, on the ground that the same was immaterial and irrelevant to any defence raised by the answer; that the court sustained the objection; and that the defendant excepted to such ruling.

We are of opinion that the Circuit Court committed an error in excluding the original patent. It was relevant evidence upon the question whether the reissue was “for the same invention” as the original, and the issue on that subject was sufficiently raised by the averment of the complaint and the denial in the answer. The defendant was entitled to try that question in a formal manner, and it could not do so unless the original patent was introduced in evidence. The judgment is reversed and the case is remanded to the

Circuit Court with a direction to award a new trial.

BROWN V. RANK.

APPEAL FROM THE SUPREME COURT OF THE TERRITORY OF

WASHINGTON.

No 99.

Submitted November 13, 1889. – Decided November 25, 1889.

The defendant in a possessory action in the nature of ejectment, brought in

a court of Washington Territory where the laws permitted a mingling of common law and equity jurisdictions, pleaded the general issue, and also set up four defences, one of which was the statute of limitations, and one of which was an equitable defence. The plaintiff filed a general demurrer to the second, third and fourth defences. The demurrer being overruled, the plaintiff elected to stand upon it, and the case was thereupon dismissed: Held, that the final judgment was one dismissing the action at law, and was not a judgment in the exercise of chancery jurisdiction.

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