claims of the reissue are so few that they must necessarily all be used to work the injector.

The opinion further observed that if the injector were new with Boyle, and had not been claimed in the original patent, it might be proper to interpret the law liberally in favor of Boyle, to enable him to realize the full benefit of his invention; that an injector is an old device, and Boyle merely adopted it and applied it to a new use; and that he ought to be limited to that combination in which he deliberately placed and claimed it.

The conclusion of the opinion was that the reissue, being granted merely to enlarge the claims, could not be sustained, citing Burr v. Duryee, 1 Wall. 531, and Gill v. Wells, 22 Wall. 1; that the failure to claim the particular combination not claimed in the original patent, but claimed in the reissue, was not due to any such inadvertence or mistake as would authorize the claiming of it in the reissue; and that the failure to claim such combination originally occurred under such circumstances, and was accompanied with such full knowledge of all material facts, as to amount to an abandonment of that particular combination to the public.

We are unanimously of the opinion that these views of the circuit court are sound, and that it is unnecessary to consider the point made by the defendant that the reissue was invalid because it lacked novelty and invention. It is not contended that the defendant has infringed any other claims of the reissue than claims 1 and 2; and we think it entirely clear that the defendant has not infringed any of the claims of the original patent. The defendant had no flushing chamber in any flushing apparatus made by it; and such flushing chamber was an essential element in the specification and drawings of the original patent, and was one of the necessary elements in each of the six claims of the original patent, as made. It is impossible to examine the drawings of the original patent and see that the flushing chamber could be dispensed with in the structure. The original specification says that the invention of Boyle "has for its principal object to cheapen and simplify the overhead flushing apparatus." If the idea of constructing an apparatus without the flushing chamber had occurred to Boyle, he would have set forth such a construction in one of the figures of his drawings, because the omission of the flushing chamber would have promoted both cheapness and simplicity. The drawings, however, contradict the possibility of making the structure without a flushing chamber. The entire text of the original specification shows nothing but the invention of a structure containing both a tank and a flushing chamber. That chamber is referred to in the text of the original specification 31 times.

We think that, on all the facts of this case, no one of the claims of the reissue can be construed as valid in leaving out the flushing chamber as an element of the combination, inasmuch as every claim of the original patent contained it. Prouty v. Rug gles, 16 Pet. 336, 311; Brooks v. Fiske. 15 How. 212, 219; Burr v. Duryee, 1 Wall. 531; Reckendorfer v. Faber, 92 U. S. 347, Fuller v. Yentzer, 94 U. S. 288; Railway Co. v. Sayles, 97 U. S. 554; Water-Meter Co. v. Desper, 101 U. S. 332.

Moreover, the matter above printed in italics, in the right-hand column, taken from the new specification, is new matter, inserted evidently for the purpose of laying a foundation for the two expanded claims in the reissue, which it is alleged the defendant infringes. In the reissue, the flushing chamber forms an element in the combination claimed in each claim, except claims 1, 2, and 4; and, to lay the foundation for leaving out the flushing chamber as an element in claims 1, 2, and 4 of the reissue, the statement is made in the specification of the reissue of the new matter that the flushing chamber "has no function of its own, and constitutes essentially a mere enlargement of the upper portion of the flushing pipe, to the same effect as the ordinary 'service box' commonly used by plumbers."

In the specification of the original patent, the flushing* chamber had been made an esssential element in each of the six claims. The application for the Hanson patent was filed in the patent office, June 12, 1883, although the patent was not granted until November 25, 1884, and it was pending in the patent office during more than six months before Boyle's original patent, No. 291,139, was granted, January 1, 1884. The Hanson patent shows a flushing apparatus wherein the injector principle is used for exhausting the air in the confined space between the two traps, by the use of one tank containing water for flushing the basin. It was not until Boyle obtained knowledge of the Hanson patent that he conceived the idea of claiming such a construction as had been patented to Hanson. Then, and not until then, he announced the idea that it was of value to do away with the flushing chamber, although the specification of his original patent, in its text and drawings and claims, emphasized the importance of the flushing chamber as an element in every one of his combinations. The specification, drawings, and claims of the original patent do not suggest the idea that the flushing chamber "has no function of its own." There is nothing in the original patent which suggests any such combination as is claimed in claims 1, 2, and 4 of the reissue, or which suggests the possibility that Boyle's invention could be operated by a combination which omitted the flushing chamber as an element thereof. Every one of the elements which is made

a part of the several combinations claimed in the original patent is thereby made material to such combinations. Eames v. Godfrey, 1 Wall. 78; Burr v. Duryee, Id. 531; Case v. Brown, 2 Wall. 320; Gould v. Rees, 15 Wall. 187; Gill v. Wells, 22 Wall. 1; Fuller v. Yentzer, 94 U. S. 288; Powder Co. v. Powder Works, 98 U. S. 126; Leggett v. Avery, 101 U. S. 256; James v. Campbell, 104 U. S. 356; Coon v. Wilson, 113 U. S. 268, 5 Sup. Ct. Rep. 537; Parker & Whipple Co. v. Yale Clock Co., 123 U. S. 87, 8 Sup. Ct. Rep. 38; Electric Gas Lighting Co. v. Boston Electric Co., 139 U. S. 481, 11 Sup. Ct. Rep. 586; Topliff v. Topliff, 145 U. S. 156, 12 Sup. Ct. Rep. 825. Decree affirmed.

(148 U. S. 228)

GAINES et al. v. CALDWELL, as Judge of the United States Circuit Court, and GEORGE G. LATTA.

GAINES et al. v. CALDWELL, as Judge of the United States Circuit Court, and D. C. RUGG.

(March 20, 1893.)

No. 12 Original.

No. 13 Original.

APPEAL-DECISION-REVERSAL AND MODIFICATION -DUTY OF TRIAL COURT-MANDAMUS.

1. A circuit court has no power to modify its decree, when the cause is remanded after an appeal to the supreme court, otherwise than is provided for by the opinion and mandate so remanding the cause, although subsequent cases in the supreme court may have estab lished principles inconsistent with those on which such opinion and mandate were founded.

2. A circuit court entered a decree that complainant recover possession of certain land, and have an accounting. On appeal the supreme court held that there was no error in the proceedings below in respect to the title and possession of the lands, but reversed the decree for error in certain items of the accounting, and remanded the cause for further proceedings in conformity with the opinion. Held, that the decree on appeal amounted to an affirmance on all questions except the accounting, and that its construction was not a matter for the discretion of the circuit court, which should enter a decree accordingly. Ex parte Washington & G. R. Co., 11 Sup. Ct. Rep. 673, 140 U. S. 91, followed.

3. A change in the decree of the circuit court, in the matter of the distribution of costs, is not permissible, under such a mandate and opinion.

4. Although an appeal might be taken from the circuit court because of its error in treating the decision of the supreme court as a reversal in all respects, and in admitting new testimony on questions other than the accounting, yet where such remedy is inadequate, because of the unavoidable delay, the supreme court may correct the error by mandamus to the circuit court.

Petitions by William H. Gaines and others for a writ of mandamus against Henry C. Caldwell, United States circuit judge, and others, to compel the entry of decrees in conformity with the mandate and opinion of the supreme court in the case of Goode v. Gaines, 12 Sup. Ct. Rep. 839, 145 U. S. 141. Granted.

Mr. Justice BLATCHFORD delivered he opinion of the court.

These cases grow out of what is known as the "Hot Springs Litigation," phases of which are reported in Hot Springs Cases, 92 U. S. 698; Rector v. Gibbon, 111 U. S. 276, 4 Sup. Ct. Rep. 605; Lawrence v. Rector, 137 U. S. 139, 11 Sup. Ct. Rep. 33; and Goode v. Gaines, 145 U. S. 141, 12 Sup. Ct. Rep. 839. Goode v. Gaines covered also 14 other cases, one of which, Rugg v. Gaines, is involved in No. 13 original, and another of which, Latta v. Gaines, is involved in No. 12 original.

The case involved in No. 13 original was a bill in equity filed by William H. Gaines and Maria, his wife, in the circuit court of the United States for the eastern district of Arkansas, against D. C. Rugg and George W. Barnes, in which a decree was entered by that court on November 11, 1887, on the report of a special master. The decree overruled the exceptions of the defendant Rugg to the report, and decreed that there was due to the plaintiffs for rent, according to the terms of a certain lease, from the date of the award to the date of the filing of the bill, $1,016.38. That there was due to them since that date, and until the filing of the master's report, for the rental value of the property, and interest, $811.68; and for the amount of rent to the date of the decree, $245; amounting in the aggregate to $2,073.06; from which were to be deducted the amount due the defendant Rugg for taxes paid, and interest, $298; the amount of purchase money paid by him to the United States for the land, and interest, $158.40; and the present value of the improvements, $500. Those sums amounting in the aggregate to $956.40, which taken from the $2,073.06, left the sum of $1,116.66, which the court found to be the balance due to the plaintiffs; and it decreed that the plaintiffs recover from Rugg $1,116.66 and all costs of suit, and have execution therefor: that the plaintiffs recover from the defend ants the possession of lot 14 in block 77 in the Hot Springs reservation, Garland coun ty, Ark.; that a writ of possession issue; that serving a copy of the decree should be the writ; and that the special master be allowed $100 for his services as such. The decree further declared that the defendant Rugg prayed an appeal to the supreme court of the United States, which was granted, and it ordered that on his filing a bond in $3,616.66, and a bond for costs for $250 the decree be superseded pending the ap peal. Maria Gaines, one of the appellees, subsequently died; and it was ordered that Albert B. Gaines, her executor, and seven other persons, her sole devisees and lega tees, be made appellees.

229

The case was argued in this court on April 18, 1892, and decided May 2, 1892; and the decree of this court was that the decree of the circuit court be reversed, each party to pay one half of the costs in this court. The mandate of this court, dated May 24, 1892, recited its decree, and ordered that the cause be remanded to the circuit court "for further proceedings to be had therein in conformity with the opinion of this court," and commanded the judges of the circuit court "that such further proceedings be had in said cause, in conformity with the opinion and decree of this court, as, according to right and justice, and the laws of the United States, ought to be had, the said appeal notwithstanding."

The bill of complaint of Gaines and his wife, which was filed May 23, 1884, against Barnes and Rugg and two other defendants, alleged, in substance, that under the laws of the United States governing the entry and sale of lands in the reservation at Hot Springs, Ark., they were entitled to enter and purchase lot 14, in block 77, in Hot Springs; that the Hot Springs commission, through a mistake of law, "permitted Barnes. assignee of Mary Waldron, who had entered upon and held said lot as tenant of the plaintiffs, to enter the lot in his own right, over the application to enter it lawfully made by the plaintiffs; that, by virtue of that error, Barnes, as assignee of the tenant, had procured a patent for the lot from the United States; and that Rugg had succeeded to the title of said tenant and Barnes. The bill prayed that the defendants might be held to be trustees for the benefit of the plaintiffs; that an account be had of the rents received by the defendants on the lot, and a decree be made for such rents, and for the possession of the lot; and for all other proper relief. On December 6, 1884, Rugg filed his answer to the bill, setting up various defenses. On November 10, 1886, the bill was dismissed as to the defendants other than Barnes and Rugg.

On the hearing of the case the circuit court found and decreed that the commissioners, by error and mistake of law, had awarded the right to purchase the lot to Barnes, who had sold it to Rugg, who had notice of the plaintiffs' claim to it; that under such erroneous ruling a patent had issued to Barnes. And the circuit court decreed that the title of Rugg to the lot be divested out of him, and be vested in the plaintiffs, and their heirs and assigns, forever; that a reference be made to a master to take an account of the rents on said lot, the taxes paid and improvements placed on it, with directions to report an account of the same; and that the plaintiffs recover all costs of suit. On a hearing on the report of the master, the final decree of November 11, 1887, was made, in the terms before stated. This court, in each of the 15 cases, including the two involved respectively in No. 13 orig

inal and No. 12 original, held that no error was committed by the circuit court in any matter relating to the title or possession of the lands, but that error had been committed in allowing to the plaintiffs, according to the account taken by the master, for rents which accrued before the bils were filed. It therefore reversed the decrees below, and remanded the several causes, with a direction for further proceedings in conformity with the opinion of this court, the costs ins this court to be equally livided. The opinion" is reported as Goode v. Gaines, 145 U. S. 141, 12 Sup. Ct. Rep. 839.

On the 1st of June, 1892, the mandates of this court in the two cases were presented to the circuit court, and were filed there and entered of record. On the same day, the plaintiffs in the Rugg Suit presented to the circuit court a petition accompanying the mandate, and praying for the entry of a decree that all the right, title, claim, and interest of the defendants in and to lot 14, in block 77, in the city of Hot Springs, be divested out of them, and be vested in the plaintiffs; that an account between the defendants and the plaintiffs be stated in accordance with the directions contained in the mandate; that, in taking the account, the defendants be charged with the rental value of the lot from May 23, 1884, (the day the bill was filed,) or during such portions of that time as they had kept the plaintiffs out of the possession thereof, down to the date of the proposed decree, with interest on the same from the end of each year at 6 per cent. per annum,-no additional rent, however, to be charged to the defendants by reason of any improvements placed upon the lot by them; that the plaintiffs be charged with all taxes paid by the defendants on the lot from the day the bill was filed, with interest on the same from the time of such payments until the date of the decree at 6 per cent. per annum, and also with the present value of all improvements placed by the defendants upon the lot, as the same might appear at the date of the decree, and with the sum of $120 paid by the defendants to the United States for the lot, with interest on the same at 6 per cent. per annum from January 1, 1882; that the defendants pay all the costs of the plaintiffs in the cause in the circuit court; that the plaintiffs have execution therefor as at law; and that the special master proceed to state an account between the parties according to the terms of the decree, and, to that end, take testimony, in writing, of all witnesses produced, and report the same, with his proceedings and findings, to the court. On the 21st of December, 1892, the plaintiffs filed in the circuit court a petition praying for a writ of possession, commanding the marshal to put them in possession of the land mentioned: in the decree.

* On the 6th of January, 1893, Rugg filed In the circuit court his exceptions to the pro

233

posed decree filed by the plaintiffs on June 1, 1892. Those exceptions embraced the propositions which are set forth in the margin. On a hearing on the petition and exceptions, before the court, held by Judge Caldwell, one of the circuit judges, an order was entered on January 7, 1893, which stated that "the court is of the opinion that said exceptions are well taken, and that the defendant herein should be allowed, if he so elects, to take further testimony in support of his said exceptions, by way of defense to the title to the land in controversy, and that this cause should be set down upon the issues formed by the pleadings and exceptions aforesaid as to the title to said lands. It is, therefore, ordered, that said exceptions be sustained, and that said decree prepared as aforesaid be not entered; but, as the plaintiffs announce their purpose to apply to the supreme court of the United States for a writ of mandamus to compel the entry of said decree as prepared by the plaintiff's solicitors, and the court being willing to expedite the said proposed proceeding, it is further ordered that said proposed decree and the petition of the plaintiffs for the entry thereof be made a part of the record herein. And it is further ordered, that the

1

1 (1) That said proposed decree did not reverse the former decree.

(2) That it appeared by the proofs in the cause that just after the award, and many times afterwards, appellees declared themselves satisfied with the awards made by said commission, and that by various acts and declarations they had estopped themselves from setting up any title or right to said lot as against said Rugg.

(3) That said lot includes a piece of land not embraced in the lease made by Gaines to Waldron.

(4) That there were four heirs of Ludovicus Belding, under whom appellees claim, of whom said Maria Gaines was one, and that there is no proof in the record that the appellees ever acquired the title of two of said heirs, by name Henry and Albert Belding.

(5) That on the former hearing in the circuit court the court was of the opinion that one holding under a quitclaim deed could not be held to be an innocent purchaser for value, but that since that time the supreme court of the United States has held otherwise, and that there is no proof in the record to show that Rugg had such notice as would bind him.

(6) That in the absence of proof of the identity of lot 14, block 77, no final decree should be rendered.

(7) That there is no proof in the record that the lot described in the lease is identical with lot 14.

(8) Because there is no proof in the record that appellees ever acquired the interest of Albert and Henry Belding in said lot.

(9) Because there is no proof in the record that Rugg bought with notice of plaintiffs' claim, and because there is proof that he bought without such notice, and when plaintiffs were publicly proclaiming that they were content with the awards made.

(10) Because there is no proof in the record on which a decree for plaintiffs can be based. (11) Defendant prays for a decree for one half of the costs of transcript used on the appeal.

(12) No judgment for costs should be rendered until the cause is finally disposed of.

petition for writ of possession filed herein by said plaintiffs be, and the same is hereby, overruled; and said plaintiffs except to said several rulings, and ask that their exceptions be noted of record, which is accordingly done."

Thereupon, the plaintiffs made an application to this court, on January 23, 1893, for leave to file a petition for a writ of mandamus commanding Judge Caldwell, as judge of the circuit court, to grant the petition for a decree, filed by the plaintiffs in that court, on June 1, 1892, and to order the issue of a writ of possession as prayed by the plaintiffs, or to make such other orders and decrees as might be deemed proper in carrying out the decree heretofore made in this cause by this court, and for all other proper relief.

On the 30th of January, 1893, this court made an order, returnable March 6, 1893, requiring the circuit judge to show cause why the writ of mandamus should not be issued. A return to the order has been filed, made by Judge Caldwell, and the case has been argued before this court. In his return to the order to show cause, in case No. 13 original, Judge Caldwell makes the statement which is set forth in the margin.' * In Goode v. Gaines, 145 U. S. 141, 12 Sup. Ct. Rep. 839, this court adhered to its decision in Rector v. Gibbon, 111 U. S. 276, 4 Sup. Ct. Rep. 605, touching titles to land in

'Among other exceptions to the proposed decree is the fifth, which is as follows: "(5) That one of the defenses relied upon by the appellant in this cause, at the hearing in which the former decrees were rendered, was, that he was a purchaser, for full value, from a person to whom the Hot Springs commission had awarded the lot in controversy, without notice of the claim or contention of the appellees, and exhibited a quitclaim deed showing such conveyance and purchase in good faith and as evidence of his title; that this honorable court was of the opinion at the former hearing of this cause that one holding under a quitclaim deed could not be regarded as a bona fide purchaser for value without notice, and that such a deed was not sufficient to put appellees to proof of notice; that one holding under a quitclaim deed could not avail himself of such a defense; that the supreme court of the United States, at the October term, 1891, (since the decision and ruling of this honorable court as aforesaid,) has held in the case of McDonald v. Belding, 145 U. S. 492, 12 Sup. Ct. Rep. 892, that the question of whether one was a bona fide purchaser for value, without notice, was one that was not to be determined by a mere inspection of the muniments of title, and that one could as well be a bona fide purchaser for value, without notice, under a quitclaim deed, as one of warranty; that such a question was one to be settled by proof. Appellant states that there is no proof in the record showing that appellant had notice of the claim of the appellees, and now denies, as is already denied by answer, that he had such notice, and submits that no decree ought to be rendered on the mandate herein in favor of the appellees, as to do so would not be according to right and justice, and the laws of the United States,' in the absence of proof that the appellees had such notice as is averred in the bill of complaint.'

Case No. 379, McDonald v. Belding, 145 U. S. 492, 12 Sup. Ct. Rep. 892, and cases No.

the Hot Springs reservation, and held that there were no facts in the 15 cases then before it (all being*appeals from the circuit court of the United States for the eastern district of Arkansas) which took those cases out of the operation of that de

227, Goode v. Gaines; No. 302, Smith v. Gaines; No. 303, Dugan v. Gaines; No. 304, Cohn v. Gaines; No. 305, Allen v. Gaines; No. 306, Madison v. Gaines; No. 307, Rugg v. Gaines; No. 308, Garnett v. Gaines; No. 309, Garnett v. Gaines; No. 310, Rugg v. Gaines;' No. 311, Granger v. Gaines; No. 312, Neubert V. Gaines; No. 313, Sumpter v. Gaines; No. 314, Latta v. Gaines; and No. 315, Latta v. Gaines,-12 Sup. Ct. Rep. 839, were all cases growing out of what is known as the "Hot Springs Reservation Litigation." There were some questions common to all the cases. The question as to whether the action of the Hot Springs commissioners was final (Rector v. Gibbon, 111 U. S. 276, 4 Sup. Ct. Rep. 605) was common to all of them. The question as to the rights of those parties who had purchased and paid value without notice of any defect in the title, but who accepted quitclaim deeds from their grantors, was not common to all the cases, but was raised in several of the cases upon pleadings and proofs identical in substance and legal effect. Among the cases in which that question was raised upon substantially the same pleadings and proofs was case No. 379, McDonald v. Belding, and case No. 314, Latta v. Gaines, and case No. 307, Rugg v. Gaines. In the circuit court, most, if not all, of these cases were tried at the same time, and treated very much as one case. On appeal in this honorable court it appears that the cases were all submitted and heard together, with the exception of case No. 379, McDonald v. Belding, which was argued, submitted, and decided by itself. Why this case was separated from the others in the argument and submission in this honorable court, respondent is not advised. It appears from the report (145 U. S. 141, 12 Sup. Ct. Rep. 839) that cases numbered 227, 302, 303, 304, 305, 306, 307, 308, 309, 310, 311, 312, 313, 314, and 315 were argued April 18, 1892, and decided May 2, 1892, and that case No. 379, McDonald v. Belding, was submitted April 26, 1892, and decided May 16, 1892. In the case of McDonald v. Belding this honorable court said: "Under all the circumstances it cannot be held that McDonald, although taking a quitclaim deed, was chargeable, when he purchased, with notice of any existing claim to the property upon the part of the plaintiffs or of either of them," and reversed the decree of the circuit court, and remanded the cause, with directions to the circuit court to dismiss the bill. The same pleadings, the same proofs, and the same "circumstances," in substance and legal effect, are present in the case of Latta v. Gaines and others, and Rugg v. Gaines and others. On this point the pleadings and proofs in the last two cases may fairly be said to be identical with the pleadings and proofs in the case of McDonald v. Belding.

The contention of the petitioners is that, while the mandate of this honorable court apparently reverses the decree of the circuit court, that this honorable court did not intend so to do, but only intended to reverse so much of said decree as related to the mode of stating the account of rents and profits between the parties. Such an intention could have been inade perfectly clear by affirming so much of the decree as vested title in the petitioners, and directing how the account should be stated. Instead of doing that, it reversed both the interlocutory and final decrees, and remanded the cause to be proceeded in according to law and justice, and the laws of the United States, in

cision; but in view of the delay in commencing the suits, and the previous acquiescence of the plaintiffs in the possession by the defendants, this court limited the right of an account in equity of the rents of the premises to the date of the filing of the bills. It

conformity to the opinion of this honorable

court.

If the supreme court has not in fact reversed that portion of the decree of the circuit court which vested title in the petitioners, then there is no necessity for entering any portion of the proposed decree, save that which directs the manner of stating the account. If it has reversed that portion of the decree vesting title in the petitioners, and remanded the cause to be proceeded in in accordance with the opinion of this honorable court, the determination of what the opinion directs calls for the exercise of judicial functions and discretion, and it is submitted that such discretion cannot be controlled by mandamus.

In the McDonald-Belding Case it appears that one Flynn leased a lot in the Hot Springs reservation from Belding and made some improvements thereon; that, after the appointment of the Hot Springs commission, Flynn, on the ground that he had made the improvements on the lot, made claim to it, and Belding claimed that he was entitled to it by reason of previous occupation and possession, and that he held continuous possession through Flynn, his tenant. The commission awarded the lot to Flynn, who afterwards, and before the commencement of suit by Belding, sold and conveyed the same to McDonald by a quitclaim deed. After the sale to McDonald, Belding commenced suit against both of them, seeking to charge them as trustees and to compel them to convey to him, alleging that McDonald purchased with full knowledge of his (Belding's) equities. McDonald denied notice of the alleged equities of Belding, and claimed to be an innocent purchaser for value. The circuit court held that one holding under a quitclaim deed could not be regarded as an innocent purchaser for value, and rendered a decree in favor of Belding. This honorable court, on appeal, held that McDonald, under the quitclaim deed, could be, and was, an innocent purchaser for value, and reversed the decree of the circuit court, and directed that the bill should be dismissed.

In view of the uniform character of the Hot Springs litigation, and the customary mode and manner of hearing and deciding what are known as the "Hot Springs Cases," respondent believes that the circuit court, in the disposition of said cases reversed by this honorable court, and remanded to the circuit court with instructions to proceed therein "according to right and justice, and the laws of the United States," should give effect to the several decisions of this honorable court in the Hot Springs Cases, and that, where the pleadings and proofs are identical with the pleadings and proofs in McDonald v. Belding, the circuit court should apply the doctrine of that case, and that the opinion in that case should be read into, and treated as if it were a part of, the opinion in the consolidated case reported under the title of Goode v. Gaines, in such of the cases embraced therein as are on all fours with the case of McDonald v. Belding.

Respondent respectfully submits to the judgment of this honorable court, and will enter and enforce, by proper decree, any order or decree made by this honorable court in and about the matters complained of; and respondent respectfully refers to the brief of the counsel for George G. Latta and D. C. Rugg, which will be filed in this cause, and the authorities therein referred to, to show why a peremptory writ should not issue.