section is as follows. "Sec. 4915. Whenever a patent, on application, is refused, either by the commissioner of patents, or by the supreme court of the District of Columbia upon appeal from the commissioner, the applicant may have remedy by bill in equity; and the court having cognizance thereof, on notice to adverse parties and other due proceedings had, may adjudge thate 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 the adjudication, and otherwise complying with the requirements of law. 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." On the filing of the bill, a subpoena was issued commanding the "commissioner of patents of the United States of America" to appear before the court in Vermont and answer. On the eighteenth of October, 1883, the commissioner made the following indorsement on the writ:

"WASHINGTON, D. C., October 18, 1883.

"I hereby accept service of the within subpoena, to have the same effect as if duly served on me by a proper officer, and I do hereby acknowledge the receipt of a copy thereof. E. M. MARBLE, Com'r of Patents. Received Oct. 18, 1883.)"

"(Office of Com'r of Patents.

And afterwards, and on said twenty-third day of October, A. D. 1883, a letter from the commissioner of patents was filed, which said letter is in the words and figures following:

"DEPARTMENT OF THE INTERIOR,

"UNITED STATES PATENT-OFFICE,
"WASHINGTON, D. C., October 18, 1883.

"SIR: I am in receipt of your letter of the 16th instant, inclosing copy of a bill of complaint entitled Hill & Prentice et al. v. The Commissioner of Patents of the United States of America, in the United States circuit court for the district of Vermont, praying that said court direct the commissioner of patents to issue a patent to the assignees of Hill & Prentice for the invention disclosed and claimed in their application filed in this office March 30, 1880, for an improvement in milk-coolers; also a subpoena to appear and answer to said bill on the 5th proximo and a certified copy of said subpoena. I herewith return the subpoena, service accepted, and have to inform you that I shall not appear in defense in said bill.

E. M. MARBLE, Commissioner.

"Very Respectfully, "Mr. W. E. Simonds, Hartford, Conn."

No other service of process was made on the commissioner, and he made no other appearance in the cause than such as may be implied from his acceptance of service and his letter as above. In due course of proceeding a decree was entered adjudging that "Samuel Hill and Benjamin B. Prentice, as inventors, and the Vermont Machine Company, as assignee of said inventors, are entitled to have issued to them letters patent as prayed for in the petition and bill of complaint." No one was made defendant to the bill except the commissioner of patents, and Hill, Prentice, and the machine company, the complainants, were all citizens of Vermont. Benjamin Butterworth, the commissioner of patents, took this appeal, and the only question presented under it for our consideration is whether the circuit court of the district of Vermont had jurisdiction so as to bind the commissioner by the decree which was rendered.

It is contended that the supreme court of the District of Columbia has ex

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*133

clusive jurisdiction of suits against the commissioner brought under this section of the Revised Statutes. In the view we take of this case, however, that question need not be decided. By section 739 of the Revised Statutes, as well as by the act of March 3, 1875, c. 137, § 1, (18 St. 470,) it is provided in substance that, with some exceptions which do not apply to this case, “no civil suit shall be brought before either of said courts [the circuit or district courts of the United States] against an inhabitant of the United States, by any original process, in any other district than that of which he is an inhabitant, or in which he may be found at the time of serving the writ." We entertain no doubt that this statute applies to suits brought under section 4915. The applicant is to have his remedy under that section by bill in equity, and by the adjudication "of the court having cognizance thereof, on notice to adverse parties, and other due proceedings had." A bill in equity implies a suit in equity, with process and parties. The prayer for process is one of the component parts of the structure of a bill, and its purpose is to compel the defendant to appear and abide the determination of the court on the subjectmatter of the proceeding. Story, Eq. Pl. § 44.

⭑

The bill in this case was filed against the commissioner alone, and it does not appear that he was an inhabitant of the district of Vermont. The patentoffice is in the department of the interior, (Rev. St. § 475,) which is one of the executive departments of the government at the seat of government, in the District of Columbia. Rev. St. § 437. The commissioner of patents is by law located in the patent-office. Rev. St. § 476. His official residence is therefore at Washington, in the District of Columbia. The subpoena in this case was delivered to him in the District of Columbia, and his acceptance of service was made there. That is apparent from the face of his indorsement and the letter which was written afterwards, and filed in the cause undoubtedly as proof of a delivery of a copy of the bill which the law required should be served on him. Both the indorsement and the letter purport to have been written at Washington, and the letter in the patent-office. Unless, therefore, the acceptance of service as indorsed on the writ is to be treated as a voluntary appearance by the commissioner in the court in Vermont, without objection to the jurisdiction, the case stands as it would if the process had been actually served on him in the District of Columbia by some competent officer. The circuit court was of opinion that by his acceptance of service the commissioner waived all objection to the jurisdiction, and consented to be sued away from the seat of government and from his residence. In this we think there was error. The fair meaning of the indorsement on the writ is that the commissioner admits the service with the same effect it would have if made by an officer in the District of Columbia. No appearance is thereby entered in the cause. Service of the subpoena in the District is acknowledged, but nothing more. In the letter which followed the indorsement of service, both counsel and the court were informed that the commissioner declined to appear. The parties proceeded, therefore, at their own risk, and without the consent of the defendant to the jurisdiction of the court. Such being the case, we are of opinion that the court was without jurisdiction, and had no authority to enter the decree which has been appealed from. The act of congress exempts a defendant from suit in any district of which he is not an inhabitant, or in which he is not found at the time of the service of the writ. It is an exemption which he may waive, but unless waived he need not answer, and will not be bound by anything which may be done against him in his absence. What is here said, of course, does not apply to cases where the suit is brought and service is made under sections 736, 737, and 738 of the Revised Statutes.

Without considering any of the other questions which have been presented in the argument, or which might be suggested under the statute, we reverse the decree of the circuit court and remand the cause, with instructions to dismiss the bill without prejudice, for want of jurisdiction.

(114 U. S. 127)

MOWER v. FLETCHER. (Two Cases.)

(March 30, 1885.)

JUDGMENT-FINAL FOR PURPOSES OF WRIT OF ERROR.

The judgment is final for the purposes of a writ of error to the supreme court which terminates the litigation between the parties on the merits of the case, so that the lower court may execute its old judginent upon affirmance in the supreme

court.

(114 U. S. 158)

In Error to the Supreme Court of the State of California. On motions to dismiss.

M. D. Brainard and J. K. Redington, for motions. Wm. J. Johnston, in opposition.

WAITE, C. J. These motions are made on the ground that the judgments for the review of which the writs of error were sued out are not final judg-➡ ments. The judgment in each case is that the judgment of the state district court "be, and the same is hereby, reversed, with costs, with directions to the superior court of Los Angeles county to enter judgment upon the findings for the plaintiff as prayed for in his complaint." That judgment is final for the purposes of a writ of error to this court, which terminates the litigation between the parties on the merits of the case, so that, if there should be an affirmance here, the court below would have nothing to do but to execute the judgment it had already rendered. Bostwick v. Brinkerhoff, 106 U. S. 3; S. C. 1 SUP. CT. REP. 15, and the numerous cases there cited. The judgments in these cases are of that character. The litigation is ended, and the rights of the parties on the merits have been fully determined. Nothing remains to be done but to require the inferior court to perform the ministerial act of entering the judgments in that court which have been ordered. This is but carrying the judgment of the supreme court which has been rendered into execution. Nothing is left to the judicial discretion of the court below. The cases relied on in support of the motions to dismiss were all judgments or decrees of reversal, with leave for further proceedings in the inferior court. Such judgments are not final, because something yet remains to be done to complete the litigation. The motion, in each of the cases, is overruled.

CHAPMAN. BREWER, Assignee, etc.

(March 30, 1885.)

1. BANKRUPTCY-ATTACHMENT FROM STATE COURT-SUBSEQUENT ASSIGNMENT. Where, under the bankruptcy act of March 2, 1867, a proceeding in involuntary bankruptcy was commenced in the district court of the United States for the Western district of Michigan, before an attachment on land of the debtor, issued by a state court of Michigan, was levied on the land, the assignment in bankruptcy, though made after the attachment, related back and vested title to the land in the assignee as of the commencement of the proceeding; and where the attachment was levied within four months before the commencement of the proceeding, it was dissolved by the making of the assignment. The proceeding in this case was held to have been commenced before the attachment was levied.

2. SAME-EFFECT OF ADJUDICATION IN DISTRICT COURT.

•

The district court which made the adjudication having had jurisdiction of the subject-matter, and the bankrupt having voluntarily appeared, and the adjudication having been correct in form, it is conclusive of the fact decreed, and cannot be attacked collaterally in a suit brought by the assignee against a person claiming an adverse interest in property of the bankrupt.

3. SAME-ACTION BY ASSIGNEE TO REMOVE Cloud CON TITLE.

The assignment in bankruptcy was made after a levy on the land under an execution on a judgment obtained in a suit in a state court of Michigan, brought after the proceeding in bankruptcy was commenced. Held, that the assignee, being in Dossession of the land, could maintain a suit in equity, in the circuit court of the

United States for the Western district of Michigan, to remove the cloud on his title, and that that court could, under the exception in section 720 of the Revised Statutes, restrain by injunction a sale under the levy and a further levy.

Appeal from the Circuit Court of the United States for the Western District of Michigan.

H. F. Severens, for appellant. John W. Stone, for appellee.

BLATCHFORD, J. On the tenth of October, 1873, John Whittlesey, a creditor of Benjamin C. Hoyt and Enoch C. Hoyt, copartners under the name of B. C. Hoyt & Son, filed a petition in bankruptcy in the district court of the United States for the Western district of Michigan, praying that the said two persons, "partners as aforesaid," might be declared bankrupts. The petition contained the prescribed allegations, and set forth, as the demand of the petitioner, a promissory note made by the partnership, in its firm name, to his order. It alleged, as one act of bankruptcy, that the firm had "fraudulently stopped payment" of its commercial paper "within a period of fourteen days," omitting to add "and not resumed payment within said period." It alleged, as a second act of bankruptcy, that the firm had "suspended and not resumed payment" of its cominercial paper "within a period of fourteen days." Before anything was done on this petition except to file it, and on the twelfth of January, 1874, Daniel Chapman procured to be issued by the circuit court of the county of Berrien, in the state of Michigan, an attachment against the lands and personal property of the said persons, as such copartners, for the sum of $4,895.44, in a suit brought by him, in that court, against them, to recover a money demand, which attachment the sheriff, on that day, levied on certain real estate in that county. Enoch C. Hoyt died on the twenty-fifth of February, 1874. On the fifth of March, 1874, a petition, indorsed "amended petition," was filed by Whittlesey in the bankruptcy court, containing the same 'averments as the first petition, with the addition of the words so omitted in the first petition. In the body of the petition there was no mention of its being an amended petition, nor did it allude to the first petition, or to the death of Enoch C. Hoyt, and its prayer was the same as that of the first petition. It was verified March 3, 1874. On the fourteenth of April, 1874, an order was made in the suit in the state court, entering the default of Benjamin C. Hoyt, for want of an appearance, on proof of personal service on him of the attachment and of the filing of the declaration; and on the sixteenth of April, 1874, an order was made on affidavit, suggesting the death of Enoch C. Hoyt, since the issuing of the attachment, and ordering that the action proceed against the surviving defendant, Benjamin C. Hoyt. On the second of May, 1874, an order was made by the bankruptcy court, stated in it to be made on the appearance and consent of "solicitors for the alleged bankrupts," reciting that it had been shown that Enoch C. Hoyt had "departed this life since the commencement of the proceeding in said matter,” and ordering that all proceedings should stand against Benjamin C. Hoyt, survivor of himself and Enoch C. Hoyt, and that they might be prosecuted against him, with like effect as if Enoch C. Hoyt had not died, and that the individual property of Enoch C. Hoyt be surrendered by the marshal to his proper representatives. On the same day Benjamin C. Hoyt filed a denial of bankruptcy, signed by his attorneys, as follows: "And now the said Benjamin C. Hoyt appears and denies that he has committed the act of bankruptcy set forth in said petition, and avers that he should not be declared bankrupt for any cause in said petition alleged, and he demands that the same be inquired of by a jury." On the eighth of May, 1874, in the suit in the state court, a judgment was rendered in favor of the plaintiff, against Benjamin C. Hoyt, for $4,930.15, and costs; and on the same day an execution was issued thereon, under which, on that day, the sheriff levied on the same real estate which he had levied on under the attachment. On the first of June, 1874, an adjudication was made by the bankruptcy court in these words:

"ADJUDICATION OF BANKRUPTCY ON CREDITORS' PETITION. "Western District of Michigan, ss.-In the District Court of the United States for the Western District of Michigan. In Bankruptcy.

"In the matter of BENJAMIN C. HOYT, against whom a petition in bankruptcy was filed on the nineteenth day of October, A. D. 1873. At Grand Rapids, in said district, on the first day of June, A. D. 1874. Before Hon. SOLOMON L. WITHEY, District Judge.

"This matter came on to be heard at Grand Rapids, in said court, the respondent having withdrawn his denial and demand for a jury, and having, by his attorneys, Hughes, O'Brien & Smiley, consented thereto. And thereupon, and upon consideration of the proofs in said matter, it was found that the facts set forth in said petition were true, and it is therefore adjudged that Benjamin C. Hoyt became bankrupt, within the true intent and meaning of the act entitled 'An act to establish a uniform system of bankruptcy throughout the United States,' approved March 2, 1867, before the filing of the said petition, and he is therefore declared and adjudged a bankrupt accordingly.. And it is further ordered that the said bankrupt shall, within five days after this order, make and deliver, or transmit by mail, postpaid, to the marshal, as messenger, a schedule of his creditors and inventory of his estate, in the form and verified in the manner required of the petitioning debtor by the said act.

"Witness the honorable SOLOMON L. WITHEY, Judge of the said District Court, and the seal thereof, at Grand Rapids, in said district, on the first day of June, A. D. 1874. ISAAC H. PARRISH,

[Seal.]

"Clerk of District Court for said District."

161

In the certificate made by the clerk of the district court of the United States for the Western district of Michigan, certifying the copies of the bankruptcy papers, he certifies "that the foregoing is a true copy of the petition for adjudication filed October 10, 1873, copy of amended petition, order continuing proceedings, denial of bankruptcy by B. C. Hoyt, and adjudication of bankruptcy, on file in the proceedings of said court in said entitled matter." This is mentioned because, in the adjudication, the petition is referred to as filed October 19, 1873.

On the sixteenth of December, 1873, an alias execution was issued in the suit in the state court, which the sheriff, on that day, levied on real estate in Berrien county other than that before levied on by him. On the first of October, 1874, the register in bankruptcy executed to Joseph W. Brewer an assignment in these words:

"In the District Court of the United States for the Western District of Michigan. In Bankruptcy.

"In the matter of BENJAMIN C. HOYT, Bankrupt.

"Western District of Michigan, ss.: Know all men by these presents, that Joseph W. Brewer, of the village of St. Joseph, in the county of Berrien and state of Michigan, in said district, has been duly appointed assignee in said matter: Now, therefore, I, J. Davidson Burns, register in bankruptcy in said district, by virtue of the authority vested in me by the fourteenth section of an act of congress entitled 'An act to establish a uniform system of bankruptcy throughout the United States,' approved March 2, A. D. 1867, do hereby convey and assign to the said Joseph W. Brewer, assignee as aforesaid, all the estate, real and personal, of the said Benjamin C. Hoyt, bankrupt aforesaid, including all the property, of whatever kind, of which he was possessed, or in which he was interested or entitled to have on the tenth day of October, A. D. 1873, with al! his deeds, books, and papers relating thereto,

V.58-51