termine the points involved by the reasons of appeal. To this law expressly confines him. The moment he enters upon the investigation or the determination of matters de hors these reasons of appeal, he has transcended the limits of the jurisdiction conferred, and acting thus, without power or jurisdiction, his act becomes a mere nullity. In the case of Whiteley's former appeal, the point on which the appeal was dismissed was in nowise. involved by the reasons of appeal, and the dismissal is therefore, in my judgment, a mere nullity, and does not stand in the way of the present appeal." (MS. Appeal Cases D. C., 1868.)

In the case of Abraham v. Fletcher the Commissioner says: "It seems as though the necessity would never cease to be felt of recalling the true nature and extent of the jurisdiction conferred upon the appellate judge in patent cases. Yet it is well known that he is the mere substitute for the board of examiners provided in the seventh section of the act of 1836. It seems to be thought by many that his judicial character invests him with further prerogatives. That is an entire mistake. His office serves merely as a designatio persona, the means of ascertaining who shall constitute the tribunal of appeal. He derives no authority or jurisdiction from it, but has merely those which were conferred upon the former board of examiners. How limited those are has been often conceded by the judges when acting in their appellate capacity, as may be seen in repeated decisions referred to in Law's Digest, 138-141. (See more particularly Arnold v. Bishop, 138; Richardson v. Hicks, 140.)

"It is true that in a case somewhat resembling the one before us, Potter v. Dixon, (2 Fish., 381,) Judge Nelson is

reported to have said, that 'the decision of the chief justice' (the appellate judge) 'was doubtless binding on the Commissioner as between those parties, but no further.' If he had said it was binding no further, at most, than as between those parties, he would have conveyed all he probably meant to say, certainly all he was called upon to decide.

"The question how far the former decision was binding, as between the parties to it, upon the Commissioner, was not discussed before him, and probably was not considered. On the other hand, the case plainly shows that the rescript of the appellate judge was held to be of no weight, except upon the precise points submitted to him. If, notwithstanding his order that a patent issue, the Commissioner may still suspend it when another party interposes a claim to the invention, it plainly follows that he has the same power when for other reasons it appears that there are valid objections to the issue.

"The truth is, the Commissioner is bound to follow the decision above upon those points only which were raised by the appeal, and upon no other. It is for the judge to say that a decision of the Commisstoner shall be affirmed or reversed; not to say that a patent shall or shall not issue. It belongs to the Commissioner alone to determine that question, and in determining it many other considerations may have to be taken into the account, besides those which have been passed upon by the judge. In Wade v. Matthews, (5 Opinions Attorneys General, 220,) it was held by Reverdy Johnson, Attorney General, that so long as the Commissioner had a patent within his control, which had been ordered to issue, he was bound to keep it back if fresh objections to it came

to his knowledge, so that he was not satisfied that it ought to issue.

"That is equally true, I apprehend, although his opinion upon other points touching the invention has been reversed on appeal. He is only precluded from raising anew an objection which has been overruled." (Commissioners' Decisions, 1869, p. 50.)

253. DECISIONS NOT MERELY ADVISORY, BUT TO BE FOLLOWED AS PRECEDENTS.-In the case of Mason v. Doellbor and Houghton the Commissioner says: "It is conceded by the counsel for the appellant, Mason, that this case presents the precise question as to abandonment which was lately decided by Mr. Justice Fisher, upon appeal from this office, in the case of Rowley v. Mason. I think that the decisions of the judges of the supreme court of the District of Columbia in cases which are properly before them on appeal from this office, are, in other cases to which they apply, something more than advisory, and that where, as in the present case, it is conceded that the facts are in substance the same as the case in which a decision has been rendered, it is the duty of the Commissioner to apply and enforce such decision without hesitation, whatever might be his individual opinion of the law. The decision of the board of examiners-inchief is therefore affirmed, upon the authority of Rowley v. Mason." (Commissioners' Decisions, 1869. p. 26.)

254. FORM OF PETITION TO THE SUPREME COURT OF THE DISTRICT OF COLUMBIA.

To the Supreme Court of the District of Columbia.

The petition of George Thompson, of Boston, in the county of Suffolk, and State of Massachusetts, respectfully showeth: That he has heretofore invented a new and useful improvement in velocipedes, and has applied to the Patent Office of the United States for a patent [or for the reissue of a

patent heretofore granted] for the same, and has complied with the requirements of the several acts of Congress and with the rules of the Patent Office prescribed in such cases; that his said application has been rejected by the Commissioner of Patents on appeal to him; and that he has filed in said office due notice to the Commissioner of Patents of this his appeal, accompanied with the reasons of appeal, and with certified copies of all the original papers and evidence in the case, all which will appear from the certificate of said Commissioner of Patents, hereto annexed.

And the said George Thompson prays that his said appeal may be heard and determined by your honorable court at such a time as may be appointed for that purpose; and that the Commissioner of Patents may be duly notified of the same, and directed in what manner to give notice thereof to the parties interested. GEORGE THOMPSON.

255. FORM OF CERTIFICATE OF COMMISSIONER.

PATENT OFFICE, WASHINGTON, D. C., July 17, 1869. I hereby certify that the above-named George Thompson has complied with the requisites of the law necessary to perfect his aforesaid appeal. SAM'L S. FISHER, Commissioner of Patents.

256. FORM OF NOTICE AND REASONS OF Appeal.

To the Commissioner of Patents:

George Thompson, of Boston, in the county of Suffolk, and State of Massachusetts, hereby gives notice that he has appealed from your decision rejecting his application for a patent [or for a reissue of a patent granted to him July 7, 1865] for improvement in velocipedes, and of this you are respectfully requested to take notice.

Accompanying this notice are certified copies of all the original papers and evidence in the case, and a petition addressed to the supreme court of the District of Columbia.

And the said George Thompson assigns the following reasons for appealing from the said decision of the Commissioner of Patents, viz:

The Commissioner erred in deciding that the said improvement was not patentable.

The Commissioner erred in deciding that the said invention was not new. GEORGE THOMPSON.

of departments applied to 264. Proceedings in mandamus.

257. MANDAMUS A REMEDY AGAINST PUBLIC OFFICERS. In order to maintain a system of government which will be able to secure to the citizen his rights, it is necessary to have persons appointed or chosen to administer the law. And when persons are thus clothed with the power, and have assumed the duties of a public officer, they have taken upon themselves the obligation to perform those duties; and if they neglect or refuse to do so, any person whose rights are thereby injuriously affected is entitled to demand relief. The remedy provided by our system of law, as well as that of England, is a process issuing from the judicial branch of the government, which seeks to compel the officer to go forward and do that which is enjoined upon him by the position he holds. (Moses on Mandamus, 14.)

And generally, in all cases of omission or mistake, where there is no other adequate specific remedy, resort may be had to this high judicial writ. It not only lies to ministerial, but to judicial officers. In the former case