in the Judicial Department of the Government, | v. Hughes, 52 U. S. 11 How. 552 [13: 809], the and this can only be effected by proper proceedings taken in the Courts of the United States. This subject has been frequently discussed in this court, and the principles necessary to its decision have been well established. The case of United States v. Stone, 69 U. S. 2 Wall. 525 [17: 765], was a bill in chancery brought by the United States, in the Circuit Court for the District of Kansas, to set aside a patent issued by the Government to Stone, the defendant. The question of the jurisdiction of the court to entertain such a bill, which was denied by counsel for Stone, was discussed at considerable length in their brief, and in the argument of counsel for the United States the language of Chief Justice Kent, in Jackson v. Lawton, 10 Johns. 24, was cited to the following effect: "The English practice of suing out a scire facias by the first patentee may have grown out of the rights of the prerogative, and it ceases to be applicable with us. In addition to the remedy by scire facias, etc., there is another by bill in the equity side of the Court of Chancery. Such a bill was sustained in the case of The Attorney-General v. Vernon, 1 Vern. 277, to set aside letters patent obtained by fraud, and they were set aside by a decree.' This extract from the brief of counsel in the Stone Case is cited to show that the attention of the court was turned to this question, and the language of the opinion, as delivered by Mr. ¦ Justice Grier, expresses in sententious terms the result arrived at by this court in regard to this entire question. It is as follows: "A patent is the highest evidence of title, and is conclusive as against the Government, and all claiming under junior patents or titles, until it is set aside or annulled by some judicial tribunal. In England this was originally done by scire facias, but a bill in chancery is found a more convenient remedy. Nor is fraud in the patentee the only ground upon which a bill will be sustained. Patents are sometimes issued unadvisedly or by mistake, where the officer has no authority in law to grant them, or where another party has a higher equity and should have received the patent. In such cases courts of law will pronounce them void. The patent is but evidence of a grant, and the officer who issues it acts ministerially and not judicially. If he issues a patent for land reserved from sale by law, such patent is void for want of authority. But one officer of the Land Office is not competent to cancel or annul the act of his predecessor. That is a judicial act, and requires the judgment of a court. It is contended here, by the counsel of the United States, that the land for which a patent was granted to the appellant was reserved from sale for the use of the Government, and, consequently, that the patent is void. And although no fraud is charged in the bill, we have no doubt that such a proceeding in chancery is the proper remedy, and that if the allegations of the bill are supported, the decree of the court below canceling the patent should be affirmed." We cite thus fully from this case because it is the first one in which the questions now before us were fully considered and clearly decided. In the previous case of United States same question came before the court on demurrer. The court held that the demurrer must be overruled, saying that it cannot "be conceived why the Government should stand on a different footing from any other proprietor. The case afterwards came again before this court, and is reported in 71 U. S. 4 Wall. 232 [18: 303], later than the Stone Case. The court then said: "It was the plain duty of the United States to seek to vacate and annul the instrument, to the end that their previous engagement might be fulfilled by the transfer of a clear title, the only one intended for the purchaser by the Act of Congress." In the case of Moore v. Robbins, 96 U. S. 530 [24: 848], this court said, in a suit between private citizens, and speaking of the issue of patents by the Government: "If fraud, mistake, error or wrong has been done, the courts of justice present the only remedy. These courts are as open to the United States to sue for the cancellation of the deed or reconveyance of the land as to individuals; and if the Government is the party injured this is the proper course." In Moffat v. United States, 112 U. S. 24 [28: 623], a decree of the circuit court setting aside a patent as having been obtained by fraud was affirmed; and the same doctrine was reasserted in United States v. Minor, 114 U. S. 233 [29: 110]. Still later, in the case of Colorado Coal & Iron Co. v. United States, 123 U. S. 307 [31: 182], the right of the court, by a proceeding in equity at the instance of the Attorney-General and in the name of the United States, to set aside a patent for land, was fully recognized, and the language used in the case of United States v. Minor, supra, was cited to the following effect: "Where the patent is the result of nothing but fraud and perjury, it is enough to hold that it conveys the legal title, and it would be going quite too far to say that it cannot be assailed by a proceeding in equity and set aside as void, if the fraud is proved and there are no innocent holders for value.” The whole question was reviewed at great length by this court at its last term in the case of United States v. San Jacinto Tin Co., 125 U. S. 273 [31: 747], when all the cases above mentioned, and others, were cited and commented upon. The matter is thus summed up in the opinion of the court: "But we are of opinion that since the right of the Government of the United States to institute such a suit depends upon the same general principles which would authorize a private citizen to apply to a court of justice for relief against an instrument obtained from him by fraud or deceit, or any of those other practices which are admitted to justify a court in granting relief, the Government must show that, like the private individual, it has such an interest in the relief sought as entitles it to move in the matter. If it be a question of property, a case must be made in which the court can afford a remedy in regard to that property; if it be a question of fraud, which would render the instrument void, the fraud must operate to the prejudice of the United States; and if it is apparent that the suit is brought for the benefit of some third party, and that the United States has no pecuniary interest in the remedy sought, and is under no obligation to the party who will be | ings for the purpose of vacating or rescinding benefited to sustain an action for his use; in the patent which the Government has issued short, if there does not appear any obligation to an individual, except in the cases provided on the part of the United States to the public, or to any individual, or any interest of its own, it can no more sustain such an action than any private person could under similar circum stances.' This language is construed by counsel for the appellee in this case to limit the relief granted at the instance of the United States to cases in which it has a direct pecuniary interest. But it is not susceptible of such construction. It was evidently in the mind of the court that the case before it was one where the property right to the land in controversy was the matter of importance, but it was careful to say that the cases in which the instrumentality of the court cannot thus be used are those where the United States has no pecuniary interest in the remedy sought, and is also under no obligation to the party who will be benefited to sustain an action for his use, and also where it does not appear that any obligation existed on the part of the United States to the public or to any individual. The essence of the right of the United States to interfere in the present case is its obligation to protect the public from the monopoly of the patent which was procured by fraud, and it would be difficult to find language more aptly used to include this in the class of cases which are not excluded from the jurisdiction of the court by want of interest in the Government of the United States. It is insisted that these decisions have reference exclusively to patents for land, and that they are not applicable to patents for inventions and discoveries. The argument very largely urged for that view is the one just stated, that in the cases which had reference to patents for land the pecuniary interest of the United States was the foundation of the jurisdiction. This, however, is repelled by the language just cited, and by the fact that in more than one of the the cases, notably in United States v. Hughes, supra, the right of the Government to sustain the suit was based upon its legal or moral obligation to give a good title to another party who had a prior and a better claim to the land, but whose right was obstructed by the patent issued by the United States. for in section sixteen of the Act of July 4, It is said that this language of the court is obiter, and does not decide directly that a suit can be brought in chancery to cancel or annul a patent issued by the United States Government for an invention. It is true that what the court was called upon to decide was that a private citizen could not bring such suit; but evidently the reason given for it must be held to establish the principle upon which the court acted, and that reason was that the private citizen could not do it because the right lay with the Government. The duty and the right of the Government to bring an action which would end in the destruction of the patent, and which. would thus protect everybody against the asserted monopoly of it, was the reason why the private citizen could not for himself bring such a suit. Another reason given by the court is that the fraud, if one exists, must have been practiced on the Government, which, as the party injured, is the appropriate party to seek relief, and that a suit by an individual could only be conclusive in result as between the patentee and the party suing, and the patent would remain a valid instrument as to all others; while, if the action was brought by the Government, The case of Mowry v. Whitney, 81 U. S. 14 and a decree had to annul the patent, this Wall. 434 [20: 858], was a bill in chancery would be conclusive in all suits founded on the brought by Mowry, in the Circuit Court for patent. Other reasons were given, showing the Eastern District of Pennsylvania, against that the United States was the appropriate parWhitney, charging that Whitney's patent for ty to bring such a suit, and that the Circuit a mode of annealing and cooling cast-iron car Court of the United States, sitting in equity, wheels, and an extension of it made by the was the proper tribunal in which to bring it; Patent Office had been procured by fraud and all tending to show that the reason why a prifalse swearing, and praying that it and the ex-vate citizen could not have such relief was that tension might be declared void and of no effect. To this bill Whitney demurred. The The United States, by issuing the patents demurrer was sustained by the court below, which are here sought to be annulled, has and from the decree dismissing the bill Mowry taken from the public rights of immense value took an appeal to this court, where it was said and bestowed them upon the patentee. In this "that the complainant could not, in his own respect the Government and its officers are actright, sustain such a suit." In giving its rea-ing as the agents of the people, and have, unsons for this, the court said: "We are of opin- der the authority of law vested in them, taken ion that no one but the Government, either in from the people this valuable privilege and its own name or the name of its appropriate conferred it as an exclusive right upon the officer, or by some form of proceeding which patentee. This is property, property of a gives official assurance of the sanction of the value so large that nobody has been able to esproper authority, can institute judicial proceed-timate it. In a former argument in this court. it belonged to the Government. it was said to be worth more than twenty-five | tion 4920 is quoted, contain the language appli millions of dollars. This has been taken from cable to this subject. the people, from the public, and made the private property of the patentee by the action of one of the departments of the Government acting under the forms of law, but deceived and misled, as the bill alleges, by the patentee. That the Government, authorized both by the Constitution and the statutes to bring suits at law and in equity, should find it to be its duty to correct this evil, to recall these patents, to get a remedy for this fraud, is so clear that it needs no argument; and we think we have demonstrated that the proper remedy is the one adopted by the Government in this case. But conceding that, in regard to patents for land, and in reference to other transactions, in which the Government is a party, the courts of equity have jurisdiction to correct mistakes, to give relief for frauds, and to cancel contracts and other important instruments, it is said that in reference to patents for inventions and discoveries the Acts of Congress have provided another remedy for frauds committed in obtaining them, and for the very class of frauds set up in this bill. Counsel therefore contend that this supersedes all others. This remedy is found in the following provision of the Revised Statutes: "Sec. 4920. In any action for infringement the defendant may plead the general issue, and having given notice in writing to the plaintiff or his attorney thirty days before, may prove on trial any one or more of the following special matters: "First. That for the purpose of deceiving the public the description and specification filed by the patentee in the Patent Office was made to contain less than the whole truth relative to his invention or discovery, or more than is necessary to produce the desired effect; or, "Second. That he had surreptitiously or unjustly obtained the patent for that which was in fact invented by another, who was using reasonable diligence in adapting and perfecting the same; or, Third. That it had been patented or described in some printed publication prior to his supposed invention or discovery thereof; or, "Fourth. That he was not the original and first inventor or discoverer of any material and substantial part of the thing patented; or, "Fifth. That it had been in public use or on sale in this country for more than two years before his application for a patent, or had been abandoned to the public." The Statute of 1836 repealed the provisionTM for a scire facias. It is now argued that the repeal of this provision, together with the enactment of the provision of section 4920, show that the only remedy for the improvident issuing of a patent is to be found in the language of that section. These clauses, while they do not in any general form declare that a person sued for an infringement of a patent may set up as a defense that it was procured by fraud or deceit, do in effect specify various acts of fraud which the infringer may rely upon as a defense to a suit against him founded upon that instrument. It is, therefore, urged that because each individual affected by the monoply of the patent is at liberty, when he is sued for using it without license or authority, to set up these defenses, the remedy which the United States has under the principles we have attempted to sustain, is superseded by that fact. But a consideration of the nature and effect of these different modes of proceeding in regard to the patent will show that no such purpose can be inferred from these clauses of the Act of Congress. In the first place, the right given to the infringer to make this defense is a right given to him personally, and to him alone, and the effect of a successful defense of this character by one infringer is simply to establish the fact that, as between him and the patentee, no right of action exists for the reasons set up in such defense. But the patentee is not prevented by any such decision from suing a hundred other infringers, if so many there be, and putting each of them to an expensive defense, in which they all, or some of them, may be defeated and compelled to pay, because they are not in possession of the evidence on which the other infringer succeeded in establishing his defense. On the other hand, the suit of the Government, if successful, declares the patent void, sets it aside as of no force, vacates it or recalls it, and puts an end to all suits which the patentee can bring against anybody. It opens to the entire world the use of the invention or discovery in regard to which the patentee had asserted a monopoly.. This broad and conclusive effect of a decree of the court, in a suit of that character brought by the United States, is so widely different, so much more beneficial, and is pursued under circumstances so much more likely to secure complete justice, than any defense which can be made by an individual infringer, that it is Prior to the year 1836, from the earliest en- impossible to suppose that Congress, in grantactments of patent law, certain provisions had ing this right to the individual, intended to subeen incorporated in that law authorizing a persede or take away the more enlarged remscire facias to issue to declare a patent void for edy of the Government. Some of these speciwant of invention by the patentee, and other fications of grounds of defense are not such as matters, which, though instituted by a private would ordinarily be sufficient in a court of individual, was under the control of the official equity to set aside the patent, as "that it had attorneys of the Government. This was re- been in public use or on sale in this country pealed by the Act of 1836, which may be said for more than two years," or "that it had been to be the first real and successful organization patented or described in some printed publicaof the Patent Office and the system of patent tion prior to his supposed invention or discovlaw in the United States. The law on this sub-ery thereof." It is unnecessary to decide ject was revised by the Act of Congress of July 8, 1870 (16 U. S. Stats. at L. 198), and the Revised Statutes of the United States, from which sec whether these grounds now would be sufficient cause for setting aside a patent in a suit by the United States; but they are not of that general character which would give a court of equity jurisdiction to do that, except as it may be said they are now parts of the general system of the patent law. A question almost identical with this was made in the House of Peers in the case of The King v. Butler, 3 Lev. 220, as to whether the judgment obtained by the King in the court of chancery repealed the grant to Butler. It was answered by the judges to some of the objections that "It was not unusual for the King to have his remedy, as well as the subject also; as for batteries, trespasses, etc,, the King has a remedy by information and indictment, and the party grieved by his action." The argument need not be further extended. There is nothing in these provisions expressing an intention of limiting the power of the Government of the United States to get rid of a patent obtained from it by fraud and deceit. And although the Legislature may have given to private individuals a more limited form of relief, by way of defense to an action by the patentee, we think the argument that this was intended to supersede the affirmative relief to which the United States is entitled, to obtain a cancellation or vacation of an instrument obtained from it by fraud, an instrument which affects the whole public, whose protection from such a fraud is eminently the duty of the United States, is not sound. The decree of the Circuit Court dismissing the bill of plaintiff is reversed, and the case remanded to that court, with directions to overrule the demurrer, with leave to defendants to plead or answer, or both, within a time to be fixed by that court. Mr. Justice Gray was not present at the argument and took no part in the decision of this case. UNITED STATES, Appt., V. SIMON COOK. Mr. Justice Bradley delivered the opinion of the court: This is an appeal from a judgment rendered by the court of claims against the United States in favor of Simon Cook, for the sum of $1,000. Cook was appointed a cadet midshipman in the navy, June 6, 1873, graduated at the naval academy June 18, 1879, and was appointed ensign November 15, 1881. He claims additional pay under the Act of March 3, 1883, chap. 97 (22 Stat. at L. 473), which is as follows: "And all officers of the navy shall be credited with the actual time they may have served as officers or enlisted men in the regular or volunteer army or navy, or both, and shall receive all the benefits of such actual service, in all respects, in the same manner as if all said service had been continuous, and in the regular navy, in the lowest grade having graduated pay held by such officer since last entering the service." If entitled to credit in his grade of ensign with the time of his service as cadet midshipman, there is still due the claimant the sum of $1,000. The claim of the appellants is, that, in the sense of the above cited Act, the appellee did not serve either as an officer or enlisted man, while a student at the naval academy. After the 12th section of the Act of July 15, 1870 (16 Stat. at L. 334), students at the naval academy were to be styled "cadet midshipmen," and after graduation were to be appointed midshipmen and promoted to the grade of ensign, as vacancies might occur. Prior to that Act students at the naval academy were styled midshipmen. The form of appointment was the same before and after the Act; in both cases it was signed by the Secretary of the Navy, by direction of the President, and the position and duties were precisely the same. In the case of United States v. Baker, 125 U. S. 645 [31:824], it was held that Baker, who was appointed prior to the Act of July 15, 1870, a midshipman at the naval academy, but who did not graduate until after the Act had been passed, was entitled to pay, under the Act of March 3, 1883, from the time of his entrance at the naval academy. It is difficult to see how the present case can be distinguished from that. Calling the student a cadet midshipman instead of a midshipman, without changing his position or his duties, does not make his status different from what it was before. In the Baker Case, 1. A cadet midshipman at the naval academy, appointed June 6, 1873, who graduated at the naval speaking by Mr. Justice Blatchford, this court academy June 18, 1879, and was appointed ensign said: "But even if $12 of the Act of 1870 November 15, 1881, is entitled to additional pay un-applies so far to those who were then students der the Act of March 3, 1883, chap. 97, 22 Stat. at L. in the naval academy, that they were thereafter (See S. C. Reporter's ed. 254–257.) Cadet-midshipman-claim for additional pay. 473. 2. Calling a student a cadet midshipman, in pursuance of the Act of July 15, 1870, instead of a midshipman, without changing his position or his duties, does not make his status different from what it was before. A midshipman is an officer. to be styled cadet midshipmen, yet they were still to discharge the same duties as before, and be subject to the same naval discipline and control as before, and to receive the same pay as before. We see nothing in the Act of 1870 Submitted Nov. 5, 1888. Decided Nov. 19, 1888. to exclude the claimant from the position which he occupied prior to the passage of that Act as [No. 1163.] APPEAL from a judgment of the Court of a member of a grade in the active list of line Claims, in favor of the appellee, a cadet officers of the navy, so far as respected his sermidshipman in the navy for additional pay un-vice at the naval academy after the date of the der the Act of March 3, 1883. Affirmed. The facts are stated in the opinion. Messrs. A. H. Garland, Atty-Gen., Robert A. Howard, Assist. Atty-Gen. and F. P. Dewees, Assist. Atty., for appellant. Messrs. Robert B. Lines and John Paul Jones, for appellee. passage of that Act, whether he was thereafter to be styled a cadet midshipman or continue to be styled a midshipman." Again the court said: "It is impossible not to conclude that the claimant continued to be after the passage of the Act of 1870, as he was prior to its passage, an officer of the navy on the active list, and serving as such an officer by virtue of his having been appointed a midshipman and continuing to be a student in the naval academy, even though he might have been properly styled after the passage of the Act of 1870 a cadet midshipman.' We think that the views thus expressed in the Baker Case were sound, and we adhere to them. That a midshipman is an officer has been understood ever since there was a navy. He is not one of the common seamen. His name indicates a middle position between that of a superior officer and that of the common seaman. (Imp. Dict.) Harris, in the early part of last century, and Johnson in the middle of it, defined 'Midshipmen as "officers aboard a ship." Cooper, in his History of the Navy of the United States, speaking of the Colonial period in the middle of last century, says: "About this time, it also became a practice among the gentry of the American Provinces to cause their sons to be entered as midshipmen in the royal navy." (p. 34.) The first Act of Congress under the Constitution establishing a navy, after UNITED STATES Appt., v. JOHN F. KNOX. (See S. C. Reporter's ed. 230-235). United States Commissioner, fees of—presentation of claim, auditing-mandamus. 1. A United States Commissioner who kept a docket, by direction of the court appointing him, and entered therein the proceedings in criminal cases heard and decided by him, is entitled to the same fees allowed to clerks of courts by section 828, R. S. 2. Where the judge of the district court refused to receive or to act upon his claim, this amounts to a presentation of it by the claimant to the court. 3. The presentation of the claim to the auditing officers of the treasury department and its disallowance by them, was net necessary to give the court of claims jurisdiction thereof. 4. Such claimant was not compelled to resort to a writ of mandamus against the circuit court to compel it to act upon his claim before bringing his Submitted Nov. 5, 1888. Decided Nov. 19, 1888. [No. 1209]. action in the court of claims. naming the superior officers to be employed APPEAL from a judgment of the Court of The facts are stated in the opinion. The questions arising in the case at bar were not at issue in either or any of such cases. Before any such fees shall be allowed by any officer of the treasury the provisions of the Act of 1875 must be complied with. Clyde's Case, 80 U. S. 13 Wall. 38 (20:479); Kaufman's Case, 96 U. S. 571 (24:792); Ravesies v. U. S. 21 Ct. Cl. 243; Boughton's Case, 12 Ct. Cl. 333; Real Estate Savings Bank's Case, 16 Ct. Cl. 335, 104 U. S. 728 (26: 908); Sybrandt's Case, 19 Ct. Cl. 461; Ramsey's Case, 14 Ct. Cl. 367. Claims, for services by appellee as Comon each ship, designates the following "war-missioner of the United States Circuit Court. rant officers," to be appointed by the President, Affirmed. namely: "One sailing master, one boatswain, one gunner, one sailmaker, one carpenter, and eight midshipmen;" and these are placed before 'petty officers," mentioned in the same connection. Act of March 27, 1794, 1 Stat. at L. The questions raised were held to have been 350. If the law designates a cadet as a mid-substantially decided in Turner's Case, 19 Ct. shipman, the designation is an official one. Cl. 629; Wallace's Case, 20 Ct. Cl. 273; Water's The qualification of cadet midshipman is used Case, 21 Ct. Cl. 30. for the sake of distinction, to distinguish one kind of midshipman from another, a midshipman at school from a midshipman aboard ship. In the case of United States v. Hendee, 124 U. S. 309 [31:465], it appeared that Hendee was a paymaster, and had been promoted from a paymaster's clerk, and this court, by Mr. Justice Miller, said: "The claimant here is an officer of the navy, and is, therefore, to be credited with the actual time that he served as an officer or enlisted man in the regular or volunteer army or navy, or both. We think the words 'officers or enlisted men in the regular or volunteeer army or navy, or both,' was intended to include all men regularly in service in the army or navy, and that the expression 'officers or enlisted men' is not to be construed distributively as requiring that a person should be an enlisted man, or an officer nominated and appointed by the President, or by the head of a department, but that it was meant to in⚫clude all men in service, either by enlistment or regular appointment, in the army or navy. We are of opinion that the word officer' is used in that statute in the more general sense which would include a paymaster's clerk; that this was the intention of Congress in its enactment, and that the collation of the words means this, especially when it is added that they shall receive all the benefits of such actual service in all respects and in the same manner as if said service had been continuous and in the regular navy.' The decision in the Cases of Hendee and Baker render it unnecessary to go over again the history of the legislation that bears on the subject. The decree of the Court of Claims is affirmed. The office of a writ of mandamus is to compel the performance of a plain and positive duty. Ex parte Cutting, 94 U. S. 14 (24: 49). It is the only adequate mode of relief when an inferior court refuses to act. N. Y. L. & F. Ins. Co. v. Wilson, 33 U. S. 8 Pet. 291 (8: 949). It may be issued to compel a court to proceed with a case. Knickerbocker Ins. Co. v. Comstock, 83 U. S. 16 Wall. 258 (21: 493). Mr. George A. King, for appellee: That the claimant in this case, made his docket and indexes in the same form as that used in U. S. v. Wallace, 116 U. S. 398 (29:675), is not disputed by appellant. The only objection made to a recovery is that the account has never been approved by a circuit or district court as required by the Act of February 22, 1875. Mandamus is only granted where no other legal remedy exists. Kendall v. U. S. 37 U. S. 12 Pet. 524 (9:1181); Union Pac, R. Co. v. Hall, 91 U. S. 343 (23: 428); Ex parte Cutting, 94 U. S. 14 (24: 49). |