[62] to the suit and those deriving title under them, subsequent to the rendition of the judgment. Thus, every case is fully provided for, both when the Commissioner wrongfully refuses to issue a patent, and when, in cases of interference, he erroneously issues one; and that, by means of judicial proceedings, through tribunals distinct from and independent of the Patent Office, the integrity and force of whose judg ments would be annulled, if not regarded as conclusive upon the Commissioner, notwithstanding any power of direction and superintendence on the part of the Secretary, which is therefore necessarily excluded. original equity jurisdiction under the patent | ticular part of the United States, according to laws, according to the ordinary course of equity the interest of the parties in the patent or the practice and procedure. It is not a technical invention patented; of course, without prejudice appeal from the Patent Office, like that author- to the rights of any person, except the parties ized in section 4911, confined to the case as made in the record of that office, but is prepared and heard upon all competent evidence adduced and upon the whole merits. Such has been the uniform and correct practice in the circuit courts. Whipple v. Miner, 15 Fed. Rep., 117; Ex parte Squire, 3 Ban. and A., 133; Butler v. Shaw, 21 Fed. Rep., 321. It is provided that the court, having cognizance thereof, on notice to adverse parties and other due proceedings had, may adjudge that such applicant is entitled, according to law, to receive a patent for his invention, as specified in his claim, or for any part thereof, as the facts in the case may appear. And such adjudication, if it be in favor of the right of the applicant, shall authorize the Commissioner to issue such patent on the applicant filing, in the Patent Office, a copy of such adjudication, and otherwise complying with the requirements of law. And in all cases where there is no opposing party, a copy of the bill shall be served on the Commissioner, and all the expenses of the proceeding shall be paid by the applicant, whether the final decision is in his favor or not. It thus appears that, as in cases of other applications for a patent refused by the Commissioner, the judgment, on a direct appeal, of the Supreme Court of the District is substituted for and becomes the decision of the Patent Office, so here, in cases of interference, where the Commissioner has rejected an application for a patent, the decree of the Circuit Court of the United States governs the action of the Commissioner, and requires him, in case the adjudication is in favor of the complainant, to issue the patent as decreed to him. It certainly cannot be successfully claimed that, to a writ of mandamus issued out of a court of competent jurisdiction, commanding the Commissioner of Patents to record and execute the judgment of the Supreme Court of the District, reversing on an appeal his decision refusing a patent in any case other than an interference, or the decree of a Circuit Court of the United States in any case under section 4915, R. S., requiring a patent to be issued to the claimant, it would be a sufficient answer that he had been directed by the Secretary of the Interior not to do so. If not, it must be and is because the decision of the Commissioner, as originally rendered, or that correction of it, required by the judicial proceedings, specified in the two sections of the statutes referred to, is final and conclusive upon the department. This conclusion is strengthened by the provisions of section 4918, R. S. It is there enacted that, in case a patent is actually, though erroneously, issued, interfering with another, any person interested in any one of them or in the working of the invention claimed under either of them, may have relief against the interfering [63] patentee, and all parties interested under him, by suit in equity against the owners of the interfering patent; and the court, on notice to adverse parties and other due proceedings had according to the course of equity, may adjudge and declare either of the patents void in whole or in part or inoperative or invalid, in any par The law gives express appeals from the decision of the Commissioner or, in cases where technical appeals are not given, other modes of review by judicial process. It gives no such appeal from him to the Secretary. If it exists, it is admitted it is only by an implication, which discovers an appeal in the power of direction and superintendence. That power does not necessarily, ex vi termini, include a technical appeal; and the principle applies that where a special proceeding is expressly ordained for a particular purpose it is presumably exclusive. It is clear that when the appeal is expressly authorized from the Commissioner to the court, either directly or by means of an original suit in equity, another appeal to the Secretary on the same matter isexcluded; and no reason can be assigned for allowing an appeal from the Commissioner to the Secretary in cases in which he is by law required to exercise his judgment on disputed questions of law and fact, and in which no appeal is allowed to the courts, that would not equally extend it to those in which such appeals are provided, for all are equally embraced in the general authority of direction and superintendence. That includes all or does not extend to any. The true conclusion, therefore, is, that in matters of this description, in which the action of the Commissioner is quasi judicial, the fact that no appeal is expressly given to the Secretary is conclusive that none is to be implied. The conclusion is confirmed by a review of the history of legislation on the point. The first statute on the subject of patents, Act of 1790, ch. 7, 1 Stat. at L., 109, authorized their issue by the Secretary of State, the Secretary for the Department of War, and the AttorneyGeneral, or any two of them, if they shall deein the invention or discovery sufficiently useful and important. The Act of 1793, ch. 11, which next followed, 1 Stat. at L., 318, authorized them to be issued by the Secretary of State, upon the certificate of the Attorney-General that they are conformable to the Act. The 9th section of the statute provided for the case of interfering applications, which were to be submitted to the decision of arbitrators, chosen one by each of the parties and the third appointed by the Secretary of State, the decision or award of two of whom should be final as respects the granting of the patent. This continued to be the law until the passage of the Act of 1836, ch. 357, 5 Stat. at L., 117, [64] [65] had been substituted by the Act of 1839. 5 Stat. at L., 354. The Act of 1861, ch. 88, 12 Stat. at L., 246, created the office of Examiners-in-chief, "for the purpose of securing greater uniformity of action in the grant and refusal of letters patent,' to be composed of persons of competent legal knowledge and scientific ability, whose duty it shall be, on the written petition of the applicant for that purpose being filed, to revise and determine upon the validity of decisions made by examiners when adverse to the grant of letters patent; and also to revise and determine, in like manner, upon the validity of the decisions of examiners in interference cases, and when required by the Commissioner, in applications for the extension of patents, and to perform such other duties as may be assigned to them by the Commissioner; that, from their decisions, appeals may be taken to the Commissioner of Patents in person, upon payment of the fee hereinafter prescribed; that the said Examiners-in-chief shall be governed in their action by the rules to be prescribed by the Commissioner of Patents." creating in the Department of State, the Patent Office, the chief officer of which shall be called," it says, "the Commissioner of Patents," and "whose duty it shall be, under the direction of the Secretary of State, to superintend, execute and perform all such acts and things touching and respecting the granting and issuing of patents for new and useful discoveries, inventions and improvements as are herein provided for or shall hereafter be by law directed to be done and performed," etc. By that Act it was declared to be the duty of the Commissioner to issue a patent if he "shall deem it to be sufficiently useful and important," the very discretion previously vested in the three heads of Departments by the Act of 1790; and, in case of his refusal, the applicant was (sec. 7) secured an appeal from his decision to a board of examiners, to be composed of three disinterested persons, appointed for that purpose by the Secretary of State, one of whom, at least, to be selected, if practicable and convenient for his knowledge and skill in the particular art, manufacture or branch of science to which the alleged invention appertained. The decision of this board being certified to the Commissioner, it was declared that "he shall be governed thereby in the further proceedings to be had on such application." A like proceeding by way of appeal, was provided in cases of interferences. By the 16th section of the Act a remedy by bill in It will be observed that the judgment and equity, as now given in sections 4915 and 4918, discretion, vested by the original patent law of R. S., was given as between interfering patents 1790, in a majority of the three executive offior whenever an application shall have been re-cers, the Secretary of State, the Secretary for fused on an adverse decision of a Board of Exam- the Department of War, and the Attorney-Geniners. By the 11th section of the Act of 1839, eral, who were authorized to cause letters pach. 88, 5 Stat. at L., 354, as modified by the Act tent to issue, if they shall deem the invention or of 1852, ch. 107, 10 Stat. at L., 75, it was pro- | discovery sufficiently useful and important, was vided that in all cases where an appeal was thus transferred by the Act of 1836, section 7, to the allowed by law from the decision of the Com- Commissioner of Patents, it being made his missioner of Patents to a Board of Examiners, duty to issue a patent for the invention, if he the party, instead thereof, should have a right shall deem it sufficiently useful and important; to appeal to the Chief Justice or to either of the and is continued in him by section 4893 R. S., assistant Judges of the Circuit Court of the the language being, that he shall cause an exUnited States for the District of Columbia; and amination to be made of the alleged new inby section 10 the provisions of the 16th section vention, And if on such examination it shall of the Act of 1836 were extended to all cases appear that the claimant is justly entitled to a where patents are refused for any reason what-patent under the law and that the same is suffiever, either by the Commissioner or by the Chief Justice of the District of Columbia, upon appeals from the decision of the Commissioner, as well as where the same shall have been refused on account of or by reason of interference with a previously existing patent. In this state of legislation, the Patent Office, by the Act of 1849, ch. 108,9 Stat. at L., 395, was transferred to the Department of the Interior, the Secretary of which, it was enacted, shall exercise and perform all the acts of supervision and appeal, in regard to the office of Commissioner of Patents, now exercised by the Secretary of State; which language, so far at least as appeals, strictly so-called, are concerned, was without force, as no appeals had ever been given from any decision of the Commissioner to the Secretary of State, unless that can be called so, which, by section 7 of the Act of 1836, 5 Stat. at L., 120, was to be determined by a Board of Examiners, appointed, pro re nata, by the Secretary of State, and for which, as we have seen, an appeal to the Chief Justice of the Circuit Court of the District of Columbia The Act of July 8, 1870, 16 Stat. at L., 198, revised, consolidated and amended the statutes then in force on the subject, and the substance of its provisions, material to the present inquiry, has been carried into the existing revision. ciently useful and important, the Commissioner shall issue a patent therefor." [66] It thus appears, not only that the discretion and judgment of the Commissioner, as the head of the Patent Office, is substituted for that of the head of the department, but also that that discretion [67] and judgment are not arbitrary, but are governed by fixed rules of right, according to which the title of the claimant appears from an investigation, for the conduct of which, ample and elaborate provision is made; and that his discretion and judgment, exercised upon the material thus provided, are subject to a review by judicial tribunals whose jurisdiction is defined by the same statute. In no event could the direction of the Secretary of the Interior extend beyond the terms in which it is vested, that is, to the duties to be performed under the law by the Commissioner. The supervision of the Secretary cannot change those duties nor require them to be performed by another, nor does it authorize him to substitute his discretion and judg ment for that of the Commissioner, when, by law, the Commissioner is required to exercise [68] We have adjudged that it belongs exclusively The judgment of the Supreme Court of the James H. McKenney, Clerk, Sup. Court, U. S. his own, and when that judgment, unless re- Such has been the uniform construction placed by the department itself upon the laws defining the relation of its executive head to the Commissioner of Patents. No instance has been cited in which the right of the Secretary to reverse such action of the Commissioner in granting or withholding a patent has been claimed or exercised prior to that based upon the opinion of Attorney-General MacVeagh in 1881. The jurisdiction had been previously expressly disclaimed, in 1876, by Secretary Chandler, 9 Off. | Gaz., 403, and by his immediate successor, Mr. Schurz, in 1877, 1879 and 1879; 12 of. Gaz., 475; 13 Off. Gaz., 771; 16 Off. Gaz., 220. Some question is made as to the remedy. We think, however, that mandamus will lie and that it was properly directed to the Commissioner of Patents. He had fully exercised his judgment and discretion when he decided that the relators were entitled to a patent. The duty to prepare it, to lay it before the Secretary for his signature and to countersign it, were all that remained and they were all purely ministerial. These duties he had failed and refused to perform merely out of deference to the claim of the Secretary to reverse and set aside the decision on the merits in favor of the relators. This we have held not to be a valid excuse. The case falls clearly within the principles acted upon in Comr. of Patents v. Whiteley, 4 Wall., 522 [71 U. S., XVIII., 335]. The remedy by bill in equity under section 4915 is not appropriate, because it applies only when the Commissioner decides to reject an application for a patent, on the ground that the applicant is not, on the merits, entitled to it. So that, if, in such a case, a decree for a patent could be considered, ex proprio vigore, as equivalent to a patent or could be enforced by direct process in execution of it, nevertheless, the present is not a case where such a bill would lie. It is suggested that the writ was erroneously awarded by the court below, on the ground that the decision of the Commissioner of Patents, in favor of issuing the patent to the relators, was erroneous in law upon its face. But that question does not arise upon this record. RUFUS P. RANNEY, Admr. of SILAS S. [207] v. SAMUEL L. M. BARLOW AND CHARLES (See S. C., Reporter's ed., 207–215.) jury. 1. Where plaintiffs and defendant own property Argued Oct. 20, 21, 1884. Decided Nov. 3, 1884. IN ERROR to the Circuit Court of the United for the Northern District of Ohio. The history and facts of the case fully appear in the opinion of the court. Messrs. R. P. Ranney and J. M. Adams, for plaintiff in error. Messrs. S. Burke and Wm. B. Sanders, for defendants in error. Mr. Justice Woods delivered the opinion of the court: This was an action at law brought by the defendants in error, Samuel L. M. Barlow and Charles Day, against the plaintiff in error, Silas S. Stone. The petition was framed according to the rules prescribed by the Code of Ohio, and was "for money only.' The action, generally stated, was based on the following averments of the petition, to wit: that the defendant, being the joint owner in common with the plaintiffs, of a tract of land, and being their agent to take care of and negotiate sales of the land, either in parcels or as a whole, sold the entire tract for $500,000, paid them $200,000 of the purchase money, and fraudulently retained $300,000 for himself. The suit was brought to recover $50,000 and interest, that sum being, as the petition alleged, the share of the plaintiffs in that part of the purchase money which the defendant had unlawfully and fraudulently retained and appropriated. The answer of the defendant denied all the charges of fraud made in the petition and al-[208] leged that the defendant made the sale of the plaintiffs' half of the property by virtue of a power of attorney authorizing him to sell it for $200,000, and stated facts, showing, as the defendant insisted, that he was guilty of no fraud in procuring the power of attorney; and that the plaintiffs, before executing it, were fully advised by the defendant of his purpose to sell his own half of the land for a larger price than that for which the power of attorney authorized the sale of the plaintiffs' half, the defendant undertaking to pay all the expenses of bringing about a sale; and that, with full knowledge of the facts, plaintiffs agreed to the arrangements for selling the property and executed the power of attorney. of the time in the company of the defendant; The pleadings and the bill of exceptions, which embodied all the evidence, disclosed the following facts: the plaintiffs, on or before November 6, 1871, were the owners of an undivided half in common of certain lots, forming a part of what was known as the Central Tract, situate in the City of Cleveland, in the State of Ohio, and the defendant, Stone, was the owner of the other undivided half in common. For several years previous to November 6, 1871, and until the sale of the property as hereafter mentioned, the defendant was the agent of the plaintiffs, having the charge and management of their estate in said property, with power to work up sales of the same, either in parcels or as a whole, but without power to make con- On November 17, 1881, which, as the testitracts of sale or to convey. On or about No-mony tended to show, was about the close of vember 6, 1871, the defendant, who was a resi- his visit to the defendant in Cleveland, Jackson dent of Cleveland, sent by mail to the plaintiffs, wrote a letter to Day, one of the plaintiffs, which who resided in New York, a power of attorney, was received by the person addressed, in which dated November 7, to be executed by them, he said: "I am confirmed in the opinion that which, when executed, would authorize him to you had best permit Mr. Stone to do as he sell, by contract in writing, their undivided half thinks best with Central Tract. I put it to him of the real estate above mentioned for the con- that you would prefer to go half and half with sideration of $200,000, of which $40,000 was to him in any sale he might make, in place of putbe paid, cash down and the residue in eight an- ting any valuation on your half interest. He nual payments of $20,000 each, with interest at responded that it was probable that, for his half six per cent, to be secured by mortgage on the interest, he might have to make a trade, which property sold. The authority conferred by the would bring in some other property belonging power was to expire in sixty days from the date to him, making it impossible for such an arof the power. In a letter written by the defend-rangement, and that he intended to sell with ant to the plaintiffs, which inclosed the power you; that is, that he is not a purchaser." of attorney and which bore date November 6, [209]1871, the defendant said, referring to the power of attorney: "I think I can sell, on the terins therein set forth, the land therein mentioned to a responsible party, within sixty days from now, and perhaps by the first of December next; but, in order to do so, entire secrecy must be observed in regard to the matter and I must be allowed to bring about the sale in my own way.' He added: "I advise the sale and desire an immediate reply. If a sale is made, I expect to make special terms for my interest." After the receipt of this letter and the draft of the power of attorney, to wit: about November 12, the plaintiffs sent their agent, Mr. Tatlow Jackson, to Cleveland, with a letter to the defendant, in which they said: "He," Mr. Jackson, "goes at our express request to confer with you in refer ence to the subject-matter of yours of the sixth instant. You will oblige us by communicating to him as freely as you would to us. The proposition contained in your letter is of such magnitude as to enjoin the most thorough canvass and consideration—hence Mr. Jackson's mission." There was evidence tending to show that Evidence was also introduced tending to show that, on December 1, 1871, Charles Day, one of the plaintiffs, had an interview, in Cleveland, with the defendant, in reference to the sale of the property, in which interview the defendant told him that if the sale was made, he was unwilling to divide the property equally; that if he sold his half he should sell it for more than the price named in the power of attorney; that he did not want the power of attorney, unless he was going to be left perfectly free to manage his half. To which Day replied that the power of attorney would come very quick after he got back to New York; that he was perfectly satisfied and ready to sell the property; and that, in the same interview, the defendant told Day, as reasons why he proposed to demand more for his half of the property than he demanded for the plaintiff's half, that he intended to pay the expenses of the sale, that he had to use land for that purpose and might have to buy other land. On the same day, December 1, Day wrote to his co-plaintiff, Barlow, as follows: “After a lengthy interview with Mr. Stone, I am strongly inclined to believe that we had better authorize him to sell that portion of the Central Tract, [210] 485 lots, in the manner proposed by him;" and [211] then, after giving his reasons for the opinion, added, "I therefore think it wise to conform to the terms of his proposition " Testimony was given to the jury tending to show that, after all this and about December 7, the power of attorney sent by the defendant to the plaintiffs, was executed by them and mailed to the defendant, who received it about December 9. After receiving from the plaintiffs the power of attorney, the defendant, on December 9, 1871, made a written proposition to the Cleveland, Columbus, Cincinnati & Indianapolis Railroad Company for the sale to it of the entire tract of land for $500,000, and added, "For one undivided half of the property I am prepared to give a good and sufficient warranty deed, free of incumbrance, and take a mortgage to secure the deferred payments; for the other half, which is slightly incumbered, I am prepared to give a contract from S. L. M. Barlow and Charles Day, who hold the legal title and will speedily clear it of incumbrance, and have consented that the cash payment and the contract itself shall be placed in the hands of the Society for Savings until they can make a clear title." In pursuance of this proposition, a contract was executed, bearing date December 16, 1871, by which the plaintiffs, acting by the defendant as their attorney in fact, sold and agreed to convey their undivided half of the premises to the railroad company for the consideration of $200,000, in the installments mentioned in the written proposition of December 9, which the railroad company agreed to pay. The contract was executed in less than sixty days after the date of the power of attorney and was, in all respects, in conformity with the authority conferred thereby. The defendant, by a contract also dated December 16, 1871, agreed to convey by a deed of general warranty his own undivided half of the same premises to the railroad company for the consideration of $300,000; $60,000 whereof was to be paid on the delivery of the deed and the residue in eight annual installments of $30,000 each. The latter contract coutained a provision, that unless the plaintiffs within one year delivered the deed to the railroad company for their undivided half of the [212] land, the railroad company should elect whether it would carry out its contract with the defendant or rescind the same. There was some evidence tending to show that $200,000 was a fair price for the plaintiff's undivided half of the land, and there was no evidence that when the power of attorney was executed the plaintiffs were ignorant of its value. There was no evidence tending to show that before December 7, 1871, the day when the power of attorney was executed by the plaintiffs, the defendant had received any offer or intimation from the railroad company that it would pay $500,000 for the property, or that such an offer had been received by the defendant from anyone else. the consideration and gave its note, secured by mortgage for the residue. In July following, the plaintiffs, having cleared the incumbrances from their half of the property, executed a deed therefor to the railroad company and received $40,000, the cash payment of the consideration, and notes secured by mortgage for the deferred payments. Upon this state of the evidence the court, besides other charges, gave the jury the following: "It is not enough that the defendant should have written the plaintiffs, when he applied for the power of attorney, that he expected to make special terms for himself, or that he should have told the plaintiffs or their agent that he would not sell for the price fixed by them, but expected to get more for his share. He cannot claim and take to himself the benefit of the discrimination in his favor, unless the evidence satisfies you that he had fully communicated all the facts to the plaintiffs before he consummated the sale, all the facts known to him in relation to the chances of selling, so as to enable the plaintiffs intelligently to decide whether they would consent to the proposed discrimination in defendant's favor or not. Such would be the rights of the parties, even if the defendant did not know or had not reason to believe, before he accepted the said power of attorney and undertook to execute it, that the land could [213] be sold for more." The bill of exceptions states that "The jury, having been charged by the court, retired for deliberation and after being out for the space of about one day came into court and made a writ ten request to the court for further instructions, as follows: Shall the jury understand the court to charge that the defendant is liable as agent, if it is found that he failed to reveal any material facts to plaintiffs relative to the value of the property and terms of sale? And thereupon the court gave to the jury the further instruction or charge following, to wit: In answer to your inquiry, propounded by your foreman, I have to repeat that an agent is required by law to deal fairly with his princi pals in all things. One contention of the de fendant in this case is, that the power of attor. ney under which the defendant made the sale of the plaintiffs' interest in the land, fixed the price and terms of the sale; and that plaintiffs were concluded by the authority thus given. This would be true, if the defendant obtained the power after fully and fairly communicating to them all the knowledge or trustworthy informa. tion which he possessed, so that they could as well judge of the value of the property and the propriety of selling it on the terms authorized by the power, as the defendant could himself do. But if he failed to communicate the facts and thereby induced plaintiffs to execute to him the power under which he acted in making the sale and conveying the title to the purchaser, plaintiffs could not be concluded or estopped by reason of anything contained therein. The court further instruct you that if you On January 29, 1872, the railroad company, shall find that the power of attorney was obon account of the precarious health of the detained fairly and after the communication by fendant, decided to receive at once his deed for his share of the property. The deed was executed and delivered on that day, and the railroad company paid the defendant $60,000 of defendant to the plaintiffs of all the material facts and information, as aforesaid, but that he ascertained afterwards that he could sell the land, the whole of it, at $500,000, and that he |