Dreschel v. The Auer Incandescent Light Manufacturing Co.

TASCHEREAU J.-Thejudgment appealed from affects a patent of invention.

The respondents move to quash the appeal for want of jurisdiction, upon the ground that as the actual amount in controversy does not exceed $500, under sections 51 and 52 of the Exchequer Court Act, the appeal could not be taken unless allowed by an order obtained from a judge of this court, which has not been done. The judgment appealed from declares that the appellants have infringed respondents' letters patent, and condemns them to deliver up to the respondents certain articles of an undetermined value, and refers the case to the registrar to take an account of the gains and profits made by the infringement. The respondents filed with their motion to quash, an affidavit that the total amount in controversy in the case is less than $500.

The appellants, in answer to that motion, filed two affidavits that the value in controversy exceeds $500. Under these circumstances the motion to quash must be dismissed, but the appellants must pay the costs. The case was not an appealable one, as of right, unless it appeared that the value in controversy exceeded $500. That did not appear until the appellants filed their affidavits in answer to respondents' motion.

As the record stood when the motion was made, it was well founded.

Motion dismissed, with costs against the appellants, taxed at $25.

Motion refused with costs against the appellants.

Gironard.

Mackie.