Opinion of the Court. Kennedy's sale. But the decree went on to direct a sale of the property and of all the interest and estate therein of all the parties to the suit, by trustees whom it appointed. The decree directed the trustees to bring into court t ie money and notes which they should receive, to be distributed under the further order of the court. This decree was not appealed from, but the sale took place under it. That sale was confirmed by the court in special term, by its decree of December 29th, 1880. Mrs. Mellen acquiesced in that decree by not appealing from it. On Mrs. Wallach's appeal from it, the court in general term decreed that the trustees who made the sale should require Mrs. Mellen to comply specifically with the terms of her purchase. Mrs. Wallach did not appeal from that, and so she acquiesced in it; and Mrs. Mellen, on her appea to this court assigns for error only the action of the general term in giving to Mrs. Wallach priority of payment. Mrs. Burche, being a party to both suits, and not appealing, is bound by the decrees. In view of all this, it must be held that all parties have by their action abandoned the sale by Mr. Kennedy, and acquiesced in the subsequent sale to Mrs. Mellen. It follows from this that all claim of Mrs. Wallach to any surplus from the sale by Mr. Kennedy is gone. Mrs. Mellen, instead of exacting on the sale in cash her $5,000, was willing to leave it to be still a first lien on the property. Her priority of lien, as established by the decree of January 3d, 1880, which was not appealed from, extended to the sum of $2,429.02, beyond the $5,000, as money which she had paid to discharge interest, costs, expenses and taxes which were made a lien on the property by the trust deed to Mr. Kennedy. That amount was, with the $5,000 embraced in the $8,200, covered by the deed of trust made by Mrs. Burche. But, to the extent of $7,429.02, with the interest awarded by the decree of December 29th, 1880, Mrs. Mellen's claim stands and has never been satisfied. It is a first lien under the trust-deed to Mr. Kennedy, which remains to be enforced for the benefit of Mrs. Mellen, the sale under that deed being, as shown, out of the way, by assent of all parties. Mrs. Mellen has never waived that claim and lien. She asserted them by taking the trust VOL. CXII. 4 Syllabus. deed from Mrs. Burche, to which we see no valid objection, so far, at least, as the amount for which she had a lien at the date of Mr. Kennedy's sale is concerned, and which is the amount allowed her by the court in special term as a lien. She has asserted the same claim and lien constantly ever since. She did not abandon them by assenting to the re-sale provided for by the decree of January 3d, 1880. In fact that decree, so far as the $7,429.02 adjudged by it to be due to Mrs. Mellen and to have been a lien on the property on the day of Mr. Kennedy's sale, and so far as Mrs. Mellen's claim to that extent is concerned, may properly be regarded as ordering a re-sale to enforce Mrs. Mellen's rights under the deed of trust to Mr. Kennedy. Such is its effect. Astor v. Miller, 2 Paige, 68; Olcott v. Bynum, 17 Wall. 63; Mackey v. Langley, 92 U. S. 142, 155. The decree of the court in general term, made July 9th, 1881, is reversed, and the cause is remanded to that court, with direction to affirm, with costs, the decree of the court in special term made December 29th, 1880, and to take or di rect such further proceedings as may be in conformity with law and not inconsistent with this opinion. BUTTERWORTH, Commissioner of Patents, v. UNITED STATES ex rel. HOE & Others. IN ERROR TO THE SUPREME COURT OF THE DISTRICT OF COLUMBIA. Argued October 15, 16, 1884.-Decided November 3, 1884. The Secretary of the Interior has no power by law to revise the action of the Commissioner of Patents in awarding to an applicant priority of invention, and adjudging him entitled to a patent. The legislation on this subject examined and reviewed. The executive supervision and direction which the head of a department may. exercise over his subordinates in matters administrative and executive do not extend to matters in which the subordinate is directed by statute to act judicially. Opinion of the Court. The action of the Commissioner of Patents in awarding or refusing a patent to an applicant, and in matters of that description, is quasi-judicial. The Commissioner of Patents, after determining that a patent shall issue, acts ministerially in preparing the patent for the signature of the Secretary, and in countersigning it. And if he then refuses to perform those ministerial acts mandamus will be directed. The remedy by bill in equity, under Rev. Stat. § 4915, applies only when the court decides to reject an application for a patent on the ground that the applicant is not, on the merits, entitled to it. The case is stated in the opinion of the court. Mr. Solicitor General as Amicus Curiæ; and for the Commissioner of Patents, plaintiff in error. Mr. A. C. Bradley for Scott. Mr. A. J. Willard for defendants in error. MR. JUSTICE MATTHEWS delivered the opinion of the court. This is a writ of error prosecuted for the purpose of reviewing and reversing the judgment of the Supreme Court of the District of Columbia, awarding a peremptory mandamus commanding the plaintiff in error, the Commissioner of Patents, to receive the final fee of $20 tendered by the relators, and cause letters patent of the United States to R. Hoe & Co., as assignees of Gill, to be prepared and sealed, according to law, for a certain invention therein particularly described, and to be presented to the Secretary of the Interior for bis signature. The facts upon which the controversy arises are shown by the record to be as follows: On March 12th, 1881, Gill, one of the relators, made application in due form to the Commissioner of Patents for letters patent for certain new and useful improvements in printing machines, of which he claimed to be the original and first inventor. An interference was declared with an unexpired patent, No. 238,720, granted to Walter Scott, March 8th, 1881. A hearing was had before the examiner of interferences, who decided in favor of Scott, and, on appeal to the examiners-in-chief, that decision was affirmed. An appeal from that decision was taken by Gill to the Commissioner of Patents, who decided that Gill was the original and first in Opinion of the Court. ventor of the improvements claimed, and was entitled to a patent therefor; and, on June 4th, 1883, adjudged that such patent should issue to the relators composing the partnership of R. Hoe & Co., as assignees of Gill, the inventor. On June 14th, 1883, an appeal was taken by Scott from that decision of the Commissioner of Patents to the Secretary of the Interior, under rules prescribed by that officer, dated May 17th, 1883, who, on March 7th, 1884, reversed the decision of the Commissioner of Patents in favor of Gill, adjudged Scott to be the original and first inventor of the improvements claimed, and that Gill was not entitled to a patent therefor. In his return to the alternative writ the Commissioner of Patents, admitting that he had refused, in compliance with the demand of the relators, to accept their tender of the final fee, and to prepare the patent for signature, and to take any further steps therein, declares: "That he so refused, not because he desired to make further inquiry, or to be further advised in that behalf, no motion or other proceeding for rehearing or review had been taken or was pending before him in that behalf, but that he based his refusal, and does so still, solely upon the ground that the honorable the Secretary of the Interior had entertained the appeal taken to him from said decision under the rules aforesaid, and had, in pursuance of said appeal, entered a decision reversing that of the Commissioner of Patents, and awarded priority of invention to Walter Scott." The return proceeds as follows: "Your respondent further says that for many years, and until 1881, .it was held, in pursuance of decisions and opinions of the honorable Attorney-General made in that behalf, that the honorable Secretary of the Interior had, and therefore has, no legal authority to review on appeal a decision of the Commissioner of Patents, wherein the Commissioner has finally adjudged an applicant to be entitled to a patent as prayed for in his application; in other words, that the judgment of the Commissioner of Patents upon the right of an applicant to have and receive a patent is final and conclusive, subject only to review by the Supreme Court of the District of Columbia, and such other courts as have jurisdiction in that Opinion of the Court. behalf, and by the Commissioner; and the practice of the Patent Office and the honorable the Secretary of the Interior conformed thereto. This question, however, was again raised in the cases of Nicholson v. Edison, and Le Roy v. Hopkins, and the honorable the Attorney-General of the United States, to whom the question was again referred, in an opinion signed on the 20th day of August, 1881, held that the honorable the Secretary of the Interior had and could, on appeal to him, exercise the jurisdiction to review the decision of the Commissioner of Patents, and control his action in that behalf; and later on, to wit, the 26th day of February, 1884, the honorable Secretary, in an official letter (a copy of which is hereto attached, marked E), advised your respondent that he, the honorable Secretary, had, in pursuance of the opinion of the honorable AttorneyGeneral, exercised jurisdiction on appeal from the judicial action of the Commissioner in determining questions devolved upon him by the statute. "In deference to that opinion and the action of the honorable the Secretary of the Interior in the case under consideration, your respondent refused, and does refuse, to accede to the demand of the relator. That, in view of the decisions and the uniform practice of the Commissioners of Patents and the heads of the Department of the Interior prior to 1881, doubt and uncertainty have arisen touching the legal obligations devolving upon your respondent in the case under consideration, and those of like character. "Your respondent further says that if the judgment of the Commissioner of Patents, which is, that the relator is entitled to receive his patent as prayed for, is final, and if upon such judgment it is the lawful duty of the respondent to accept said final fee and take the necessary and proper steps to prepare said patent for issue, as prayed, then your respondent has improperly refused, and does improperly refuse, to prepare said patent for issue; but if his decision is subject to review and reversal on appeal to the honorable the Secretary of the Interior, then such refusal on the part of your respondent to accept said fee and prepare said patent for issue is right and proper.” The return of the Commissioner also sets out as exhibits the |