*455

amount to the credit of the cause in the registry of the court, namely, $3,733.40, and the further sum of $1,679.14, with interest thereon from the date of the writ, that is, $2,131.94, and the costs of this suit to be taxed, with interest thereon from the date of the decree. It is suggested that the above result was reached in this wise: According to the report of the master the total liabilities of the Union Fish Company were $18,168.09,-to Burns & Co., $3,733.87, and to Rosenstein Bros., $14,434.22. From this sum of $18,168.09 deduct the assets, that is, the money in court, $3,733.40; and the balance of such liabilities was $14,434.69, which was the net loss of the partnership. Charge three-eighths of this net loss to Burns & Co., and deduct from such amount the liabilities of the company to them, there remained the sum of $1.679.14.

From the above decree the defendants prayed and were allowed an appeal to this court.

B. F. Butler, O. D. Barret, and E. J. Hadley, for appellants. W. F. Slocum, for appellees.

Mr. Justice HARLAN after stating the facts in the foregoing language, delivered the opinion of the court.

The special master reported that there was no sufficient evidence to establish misconduct or negligence upon the part either of the plaintiffs or of the defendants. This report having been confirmed, it is assigned for error that the court below did not dismiss the bill; and, that if a case was made for the dissolution of the partnership, it was error to proceed in the distribution of the assets without decreeing such dissolution. The consent of the defendants to a dissolution of the partnership, as shown by their answer, made it unnecessary for the plaintiffs to make proof of the special grounds set out in their bill for such dissolution, and authorized the court to proceed in the settlement of the accounts of the partners, and the distribution of the assets; and the fact that there was no formal decree of dissolution is immaterial, in view of the plead- | ings, and the assent of the parties to a decree winding up the affairs of the partnership, and distributing its property.

It is also assigned for error that the court below erred in*acting upon the master's interpretation of certain articles of the partnership contract as a valid part of his report; in construing the partnership contract as requiring losses of capital to be borne by the partners in the same proportion in which the contract provided for the distribution of net profits; in decreeing that any part of the capital put in by the appellees, and not paid back by the assets, should be paid by the appellants, and that the appellants should be paid back, neither from the assets, nor by the appellees, for any part of the capital put in by them; and in not decreeing priority of payment, in respect of advances found by the master to have been made by J. J. Burns Co. to the Union Fish Company, next after payment of the debts and liabilities due from that company to outside creditors.

These questions are not open to appellants in this court. The decree below fol

lowed the report of the special master, and that report was based in part upon statements drawn from the books of the parties by the accountants selected by them. respectively. Those statements contained the undisputed and disputed items in separate columns. The defendants did not file with the master or in court any exceptions to the report. If the statements by the accountants, or the report of the special master, were based upon any particular interpretation of the articles of partnership that was prejudicial to the defendants, it was their right to file exceptions to the report. The master was directed to report all issues of fact made by the pleadings, and to take an account of the dealings and transactions between the parties, and all claims for damages arising out of said transactions. He could not intelligently discharge that duty without adopting some theory as to the scope and effect of the partnership agreement. If he went beyond the order of reference, or if the account taken by him involved a misconception of the provisions of that agreement, the defendants should have brought those matters to the attention of the court by exceptions to the report. Having failed to do this, they cannot, in this court for the first time, object that the master proceeded upon erroneous views as to the contract between the parties. Equity rule 83; Brockett*v. Brockett, 3 How. 692; McMicken v. Perin, 18 How. 507; Story v. Livingston, 13 Pet. 359, 366; Medsker v. Bonebrake, 108 U. S. 66, 71, 2 Sup. Ct. Rep. 351.

After the decree below, there was a report by the clerk as to the taxation of costs. The parties having been heard in respect thereto, an order was made allowing costs to the plaintiffs to the amount of $973.34. The report shows that the plaintiffs claimed a certain amount for expenses connected with the preservation and keeping of the personal property, not including the vessels, attached on the writ. The court disallowed five-eighths of that sum. The only objection urged in this court to the taxation of costs was the allowance of any sum whatever to plaintiffs for the preservation of the attached property. This objection cannot be sustained. It was said in Trustees v. Greenough, 105 U. S. 527, that “ordinarily a decree will not be reviewed by this court on a question of costs, merely, in a suit in equity, although the court has entire control of the matter of costs, as well as the merits, when it has possession of the cause on appeal from the final decree." There is nothing in the record to take the present case out of the general rule. The allegations of the original bill justified the issuing of the attachment. It was right that the property taken under it should be cared for, and, as the court found that the plaintiffs were entitled to a decree against the defendants, a judgment for costs properly followed; and we perceive no reason why the plaintiffs should not have been allowed as part of their costs a reasonable amount for the expenses incurred in preserving the attached property, and for which they became primarily liable to the officer keeping it. We cannot say, upon the record

Decree affirmed.

(135 U. S. 200)

UNITED STATES ex rel. MILLER V. RAUM, Commissioner of Pensions.

(April 21, 1890.)

PENSION-INCREASE-MANDAMUS.

On application for an increased pension, the secretary of the interior decided that relator came under the meaning of the law granting pensions to those persons who require regular aid and attendance." The pension commissioner issued a certificate to relator at $50 a month from January 14, 1885, the date of his last medical examination. Rev. St. U. S. § 4698, provides that all persons who shall have been so totally disabled in the service as to require the regular personal aid and attendance of any other person shall be entitled to a pension of $50 a month. Section 4698 provides that, "except in cases of permanent specific disabilities, no increase of pension shall be allowed to commence prior to the date of the examining surgeon's certificate establishing the same, made under the pending claim for increase, * subject to the approval of the commissioner of pensions." Relator claimed $72 a month from June 17, 1878, under Act Cong. June 16, 1880, (21 St. at Large, 281,) the operation of which is limited to "all soldiers and sailors who are now receiving a pension of $50 per month." Held that, whether or not the commissioner was right in construing this act to apply only to those receiving $50 at the date thereof, the court would not interfere, as the decision of the secretary left the matter open, and the allegation on which the application for mandamus was based, that the commissioner refused to obey the decision of the secretary, was unfounded.

*

In error to the supreme court of the District of Columbia.

J. G. Bigelow, for plaintiff in error. Asst. Atty. Gen. Maury, for defendant in

error.

*

BRADLEY, J. The relator, Charles R. Miller, applied for a peremptory mandamus against the respondent, Green B. Raum, commissioner of pensions, to command him to reissue the relator's pension certificate, with the rates of $25 per month from June 6, 1866; $31.25 per month from June 4, 1872; $50 per month from June 4, 1874; and $72 per month from June 17, 1878; and to allow him the monthly difference between these sums and what had been allowed him. From the statements of the petition it appears that the sums heretofore allowed to the relator by way of pension have been $8 per month from the date of his discharge from military service, August 27, 1865; $15 per month from June 6, 1866; $18 per month from June 4, 1872; $24 per month from November 23, 1881; $30 per month from March 3, 1883; and $50 per month from January 14, 1885. The injuries of which the relator complains are anchylosis or rigidity of the spinal column and of the left leg, resulting from wounds received in the service, and making him nearly helpless, so as to require, as he alleges, the regular personal aid and attendance of another person. After repeated applications for an increase of his pension, in which he succeeded in getting only $30 per month from March 3, 1883, under the act of that date, he finally appealed from the commissioner of pensions to the sec

cision on the 6th of February, 1885, directed to the commissioner, and declaring, among other things, that "the pensioner is greatly disabled, and it is evident from the papers in his case that he is utterly unable to do any manual labor, and is therefore entitled to $30 per month under the act of March 3, 1883, which has been allowed him by your office. On a reconsideration of the case, a further decision was made on the 12th of February, 1885, in which the secretary said: "Since the departmental decision above referred to, the papers in the claim have been carefully reconsidered by the department, and as personal examination of the pensioner made, and it satisfactorily appears that he is unable to put on his shoe and stocking on the foot of the injured leg, for the reason that the 'nearest point that can be reached by hand from foot is 23 inches,' and for the further reason that from 'necrosis of the lower vertebræ of spine, producing anchylosis of the spinal column and destruction of some of the spinal nerves,' he is unable to bend his back. After a careful review of all the facts in this case, the department is constrained to think that the pensioner comes under the meaning of the law granting pensions to those persons who require regular aid and attendance. The decision of the 6th instant is therefore overruled, in so far as it denies that the pensioner requires regular aid and attendance." Upon the receipt of this decision, the then commissioner of pensions reissued the relator's certificate at $50 per month from January 14, 1885, the time of his last examination by the medical officers of the bureau. To this rate the present commissioner adheres, refusing to make a further reissue. This is the ground of the relator's complaint, and hence his application for a mandamus.

A rule to show cause being granted in pursuance of the former decision of this court in U. S. v. Black, 128 U. S. 50, 9 Sup. Ct. Rep. 12, the commissioner filed an answer, by which he claims, among other things, that his official action in the matter of pensions is not subject to revision by the courts. He further states that from the records of the pension bureau it appears that the relator has been borne on the pension rolls and paid as a pensioner as set forth in his petition, which rates have been fixed by the several commissioners of pensions, from time to time, in the exercise of their lawful discretion in the execution of the several pension laws applicable to the relator's case; that there is no law prescribing for a disability of the character of that of the relator a specific rate of pension; and that, in determining the rates of pension to which the relator was from time to time entitled, the several commissioners have had to determine,, and in the lawful exercise of their discretion have determined, to what specific disability, the rate of pension for which was fixed by law, the unspecified disability of the relator was equivalent. The commissioner, further answering, denies that he has failed and refused to carry out the decision of the secretary of the interior; and alleges that the decision of the secretary

made on the 6th of February, 1885, (as was the fact,) confirmed the action of the pension bureau in granting the relator a pension of $8 per month from August 27, 1865; $15 per month from June 6, 1866; $18 per month from June 4, 1872; and $24 per month from March 3, 1883,-with the exception that his pension was improperly reduced on June 4, 1882, from $24 to $18 per month. The commissioner further states that, in pursuance of the decision made by the secretary of the interior on the 12th day of February, 1885, the pension bureau issued a new certificate to the relator at $24 per month from 4th June, 1882, and at an increase at $30 per month from 3d March, 1883, and at $50 per month from 14th January, 1885, the date of the last examination of the relator by the medical officers of the pension bureau; and that this action of the pension bureau was afterwards affirmed on the relator's appeal by Assistant Secretary of the Interior Hawkins.

The commissioner, further answering, says: "That the provision of law under which the relator claims to be entitled to be carried on the pension rolls and paid a pension at the rate of seventy-two dollars ($72) per month from June 17, 1878, is contained in the act of congress approved June 16, 1880, (21 St. at Large, p. 281,) the operation of which is limited to all soldiers and sailors who are now (i. e., at the date of said act) receiving a pension of fifty dollars per month ($50) under the provisions of an act' therein cited; whereas the relator, according to the showing of his own petition and in fact, was at that time only receiving a pension of $18 per month, which said rate had been theretofore fixed, as hereinbefore set forth, by the commissioner of pensions for the time being, in the exercise of his lawful discretion in the premises. It is true, as stated by the commissioner, that the relator relies upon the act of June 16, 1880; and that this act only*provides for soldiers and sailors who were then (at the date of the act) receiving a pension of $50 per month; and that the relator was not then receiving such pension, but only a pension of $18 per month. Without assuming to decide whether the construction given by the commissioner to the act was right or wrong, the question which we are to consider is whether, in adopting the construction he did, and acting upon it, he disregarded and disobeyed the decision of the secretary of the interior. In U. S. v. Black, 128 U. S. 40, 9 Sup. Ct. Rep. 12, we held that the courts will not interfere with the executive officers of the government in the exercise of their ordinary official duties, even where those duties require an interpretation of the law, inasmuch as no appellate power is given them for that purpose; but that when such officers refuse to act at all in a case in which the law requires them to do so, or when, by special statute or otherwise, a mere ministerial duty is imposed upon them, and they refuse to perform it, a mandamus lies to compel them to act or to perform such ministerial duty. And in U. S. v. Black, ubi supra, argued at the same time, we held that when a subordinate officer is overruled by his superior officer having appellate jurisdiction over him, his duty to obey the decis

ion of such superior is a ministerial duty, which he can be compelled by mandamus to perform. In the latter case, in which the relator was the same person as in the present, the record was very meager, and did not set forth all the facts; but on the showing of the petition it seemed prima facie that the commissioner of pensions had refused to carry out the decision of the secretary of the interior; and we held that the court below ought at least to have granted the relator a rule to show cause why a mandamus should not issue. The relator thereupon filed a new petition, being the petition in the present case, and the court below, in obedience to our decision, granted a rule to show cause, which the commissioner answered, as before stated. He afterwards amended his answer by annexing thereto, as part thereof, a copy of the several decisions of the secretary of the interior, made on the 6th and 12th of February, 1885, and a subsequent decision by the assistant secretary, made on the 28th of July, 1886, confirming the action of the pension bureau.

With the additional facts before us which are now presented by these documents, in connection with the answer of the commissioner, we are satisfied that there was no failure to comply with or to carry out the decision of the secretary. That decision was not that the relator was entitled to $72 per month from June 17, 1878, and to the other rates for other dates, as claimed by him; but taking the secretary's two rescripts of February 6 and February 12, 1885, together, the decision by the first was that the relator had been receiving all that he was entitled to under the law, except from June 4, 1882, the date his pension was reduced from $24 per month to $18 per month; that he should be allowed the difference between those amounts; and that he was entitled to $30 per month under the act of March 3, 1883; and by the second rescript the decision was that the relator came under the meaning of the law granting pensions to those persons who require regular aid and attendance. This was all (which is material) that the secretary decided. And this decision was fully carried out, as the commissioner understood the law applicable to it. He issued a new certificate to the relator at $24 per month from 4th June, 1882, and at an increase at $30 per month from March 3, 1883, and at $50 per month from 14th of January, 1885; the latter date being the date of the last medical examination of the relator. The new certificate follows the secretary's decision specifically, except in regard to the last item, that of $50 per month from 14th January, 1885. This item was allowed as the supposed proper rate due to the relator's condition as expressed in the concluding part of the secretary's decision, namely, that he "came under the meaning of the law granting pensions to those persons who require regular aid and attendance." The secretary did not decide what the proper rate for that condition was, but left it to be decided by the commissioner under the laws then in force. The latter, by his construction of the law, rated the pension at $50 per month from the last medical examination. As before stated, he

metallic pin, D, which enters a metallic socket, E, inlaid in the stationary brackets, F, F, and revolve in it. The brackets are secured to a wall, a pillar, or any other object, and support the rack. I make private cue-racks, (drawing No. 2,) in which the lower plate, A, forms a bottom to a round box, B, open on top, and divided into compartments, C, C, by partitions, p, p, each compartment having a door, D, hung on hinges, and provided with a lock and key. The upper plate, E, forms a bottom to the box, B, and is provided with several holes. The rack, being revolving, is very convenient for handling the cues. What I claim as my invention and desire to secure by letters patent is the revolving billiard-cue rack, constructed and operating substantially as and in the manner herein described and specified."

M. A. Wheaton, for appellant. Willard P. Butler, for appellee.

Mr. Chief Justice FULLER, after stating the facts as above, delivered the opinion of the court.

This case falls within the familiar rule that the application of an old process or machine or apparatus to a similar or analogous subject, with no change in the manner of application, and no result substantially distinct in its nature, will not sustain a patent, although the new form of result may not have before been coutemplated. The ordinary cue-rack was made with the upper part perforated with holes to receive the small ends of the cues when put in the rack, and with a ledge or moulding along the front of the lower part, on which the cues stood, so as to prevent them from slipping off. The horizontal and straight upper and lower parts of the ordinary cue-rack were changed by complainant into two circular disks, called plates" in the specification, having the perforations and the rim secured to a vertical shaft, and each provided with a me

tallic pivot, entering into and revolving in a metallic socket, inserted in ordinary brackets attached to the wall or pillar or any other object, for the support of the rack. As the revolving rack held the cues in the same way and by the same means as the ordinary rack, if patentable novelty existed at all it must be found in making the racks revolve, when constructed and operating in the manner stated. But revolving contrivances, such as table casters and the like, for the reception and carriage of articles, so as to bring them easily within reach, were well known, and the application of such a contrivance to the holding and carrying of cues was but the application of an old device to a new and analogous use, with such changes only as would naturally be made to adapt it thereto. The making of the old cue-rack circular, putting in the revolving apparatus, and suspending it on brackets, a common use of the latter, involved mechanical skill simply, and not the exercise of invention, in the creation of a novel, substantive result. The state of the art, as shown by the prior patents for revolving dining tables and bottle casters, introduced on behalf of defendant, illustrates the correctness of this conclusion. These tables and casters were so arranged as to revolve about a common center, and bring around dishes and decanters in that way, as desired. The office performed was the same in respect to dishes and decanters as that performed by complainant's contrivance in respect to cues. The difference between revolving and stationary tables and cas. ters and between revolving and station. ary cue-racks is the same. Those revolve, and these do not. We think that competent knowledge and skill in his calling on the part of an intelligent mechanic would have enabled him, on request, to construct the revolving billiard-cue rack in question, without calling the inventive faculty into play. The patent was void for want of novelty, and the decree is reversed, and the cause remanded, with a direction to dismiss the bill.

(135 U. S. 304) SOCIETE FONCIERE ET AGRICOLE DES ETATS UNIS V. MILLIKEN. May 5, 1890.

FOREIGN CORPORATIONS-SERVICE OF PROCESSUSURY.

1. Service of process on the general agent for the state of Texas of a French corporation is a sufficient service on the corporation, under Rev. St. Tex. 1879, art. 1223, providing that in suits against "any incorporated company" the citation may be served on its local agent in the county in which the suit is brought; the language of Laws 1874, c. 84, for which the above section is a substitute, being any corporation "of this state, or any other state or country."

2. Rev. St. Tex. art. 152, gives as a ground for commencing suit by attachment "that the defendant is not a resident of the state, or is a foreign corporation, or is acting as such. Held, that an affidavit for attachment alleging that defendant "is not a resident corporation, or is a foreign corporation, or is acting as such," was not objectionable as alleging in the disjunctive one or the other of two distinct causes of action, there being but the single cause of non-residence.

3. In the absence of any excuse for the delay, a judgment under which property has been levied on