to receive the application, whatever he might do subsequently. Without this initial step there could be no examination, and, indeed, no rightful knowledge of the subject on his part. Examination and the exercise of judgment, with proper fruit, were to follow, and they did follow.

"The Commissioner found the question, whether the assignee was such a one as the law entitled to a reissue, lying at the threshold of his duties. It required an answer before he could proceed further. His decision was against the appellant. His examination of the subject was thorough, and his conclusion is supported by an able and elaborate argument. It was made a part of his reply to the rule, and is found in the record.

"From this decision, whether right or wrong, the relator had a right, under the statute, to appeal.

"If the mandamus had ordered the Commissioner to allow the appeal, we should have held the order under which it was issued to be correct. But the order was that he should proceed to examine the application. That he had already done. The preliminary question which he decided was as much within the scope of his authority as any other which could arise. Having resolved it in the negative, there was no necessity for him to look further into the case. Entertaining such views, it would have been idle to do so. The question was vital to the application, and its resolution was fatal, so far as he was concerned. Only a reversal by the tribunal of appeal could revive it and cast upon him the duty of further examination.

"The principles of law relating to the remedy by mandamus are well settled.

"It lies where there is a refusal to perform a minis

terial act involving no exercise of judgment or discretion.

"It lies, also, where the exercise of judgment and discretion are involved and the officer refuses to decide, provided that, if he decided, the aggrieved party could have his decision reviewed by another tribunal.

"It is applicable only in these two classes of cases. It cannot be made to perform the functions of a writ of error.

"In Decatur v. Paulding, (14 Pet., 515,) referring to an act of Congress under which the relator in that case claimed a pension which had been refused her by the Secretary of the Navy, this court said: 'If a suit should come before this court which involved the construction of any of these laws, the court certainly would not be bound to adopt the construction given by any head of a department; and if they supposed his decision to be wrong, they would of course so pronounce their judgment. But their construction of a law must be given in a case in which they have jurisdiction, and in which it is their duty to interpret the act of Congress in order to ascertain the rights of the parties in the cause before them. The court could not entertain an appeal from the decision of one of the Secretaries, nor reverse his judgment in any case where the law authorizes him to exercise discretion or judgment; nor can it by mandamus act directly upon the officer, and guide or control his judgment or discretion in the matters committed to his care in the ordinary discharge of his official duties. * * * The interference of courts with the performance of the ordinary duties of the executive department of the government would be productive of nothing but mischief, and we are quite satisfied that such a power was never intended to be given to them.

'This case, as presented to the court below, was within neither of the categories above mentioned. The court, therefore, erred in making the order to which the Commissioner objected.

"The main question passed upon by the Commissioner, and which was supposed to underlie this case, is not before us for consideration. If it were, as at present advised, we are not prepared to say that the decision of the Commissioner was not correct.

"The order of the court below, awarding the mandamus, is reversed with costs, and it is ordered by this court that the application of the relator be by that court overruled and dismissed."

263. PARTIES IN MANDAMUS.-The writ of mandamus, from its very nature and definition, is "a command issuing in the name of the sovereign authority." (Bouvier's Dict.) And although it is substantially a civil remedy, (2 Carter's Ind. R., 423,) yet in the United States it has always been issued in the name of the sovereignty by which it has been authorized. (Moses on Mandamus, 194.)

The suit, therefore, is properly prosecuted in the name of the United States against the Commissioner of Patents.

264. PROCEEDINGS IN MANDAMUS.-The writ can only be obtained after a rule to show cause has been laid by the court and a copy of it has been served on the Commissioner of Patents. (Brosius v. Reuter, 1 Harr. and Johns., 481.) The rule is obtained by filing a petition, in which all the facts and circumstances entitling the party to the mandamus are stated, and which is verified. by oath. (Evans's Practice, 404.) The petition should present to the court a prima facie case of duty on the part of the Commissioner to perform the act demanded,

and an obligation to perform it. (Moses on Mandamus, 284.) It should also appear that a demand has been made upon the Commissioner to do the thing he is sought to be compelled to do, and that he has refused or neglected to do it, (Stephens's Nisi Prius, 23; 9 Mich. R., 328,) and that he has it in his power to perform the act. (Ridding v. Bell, 4 Cal. R., 333.)

The Commissioner who appears to show cause why a mandamus should not be issued does so by what is sometimes called a return, sometimes an answer. (Evans's Practice, 404.) The return must either deny the facts on which the claim of the relator is founded or must state other facts sufficient in law to defeat the relator's claim. (10 Wend., 20; 35 Barb., 105; 37 Penn. S. R., 237.)

When the return is made and filed, if insufficient, the relator may move to quash it, (Evans's Practice, 405; People v. State, 2 Barb., 554; Commonwealth v. Commissioners, 32 Penn. S. R., 218;) it may, however, be amended, or a supplementary return filed, should it prove defective, (Evans's Practice, 405,) and a return on leave of court may be amended in matters of substance even after exceptions have been made. (Doug. R., 135; 10 Pick. R., 59.) The motion, however, for leave to amend should probably set forth specifically the points sought to be corrected. (State v. County Judge, 12 Iowa, 237.)

Motions or applications for mandamus against the Commissioner of Patents may be heard before the general term of the supreme court of the District of Columbia in the first instance, or by one of the justices at chambers, or in special term, but not until the petition, verified by affidavit and stating the grounds of the application, has been filed and docketed, and motion to quash

may be heard in the same manner. (Rules of Supreme Court of D. C.)

Upon argument of the law, arising upon the facts disclosed, the court decide that a mandamus shall or shall not go. (Evans's Practice, 404.)

The writ is served by delivering it to the person to whom it is directed. Courts enforce compliance with the peremptory writ by attachment of contempt. The application for an attachment is made by a motion, upon which the defendant may show cause, unless the contempt be gross, in which case the rule may be made absolute at first. (Tidd's Practice, 484.)

265. SUBJECT-MATTER OF DESIGN PATENTS.-Any person who, by his own industry, genius, efforts, and expense, has invented or produced any new and original desigu for a manufacture, bust, statue, alto-relievo, or bas-relief;