Statement of the Case.

Company is now occupying the line under a contract with the railroad company, which gives it an exclusive right in that behalf, and it is not denied that some arrangement has been made with the Southern Telegraph Company by which that company no longer is a contestant in the cause. Time is given. the railroad company until the 19th day of March next to make a further showing in the premises if it desires to do so.

MR. JUSTICE MILLER, on the 9th of April, 1888, delivered the opinion of the court.

It was suggested by a letter from counsel employed on one side of this suit that his party had sold out the interest which it had to the other party, who was prosecuting it now and was dominus litis on both sides. A ruling was made some time ago, before the death of the late Chief Justice, in effect that there was sufficient evidence to that effect to require the case to be dismissed unless the side now prosecuting it for decision would show satisfactory evidence that it was a bona fide suit. Two attempts have been made, and we are agreed in the opinion that they are both failures and that the original order should now be carried out, dismissing the case on the grounds set forth in the opinion of the Chief Justice, delivered at the time.

IN RE ROYALL.

ORIGINAL MOTION IN A CAUSE ADJUDGED AT THE LAST TERM OF THIS COURT.

No. 1351 of October Term, 1886. Submitted February 17, 1888.

The court denies a motion to take action to cause the judgment of a state court to be reversed in obedience to the mandate of this court, on the ground that it did not appear that the petitioner had applied to the highest court of the State to carry the mandate of this court into effect.

Mr. Leigh Robinson, on behalf of Mr. William L. Royall, the plaintiff in Royall v. Virginia, decided at the last term and reported in 121 U. S. at page 102, presented the follow. ing petition.

Opinion of the Court.

To the Honorable Judges of the Supreme Court of the United States:

Your petitioner, William L. Royall, would respectfully show that in a prosecution against him in the Hustings court of the city of Richmond, by the Commonwealth of Virginia, he was convicted and sentenced to pay a fine of fifty dollars. Your petitioner applied to the supreme court of appeals of said State for a writ of error to reverse this judgment, but that court refused to award the same. Your petitioner then applied to this Honorable Court for a writ of error, which was awarded, and the judgment of the supreme court of appeals of Virginia was reversed at the last term of this court, and this court's mandate was sent to said supreme court of appeals, directing it to reverse the judgment of said Hustings court.

Your petitioner placed the mandate of this court in the hands of Hon. L. L. Lewis, president of the supreme court of appeals of the State of Virginia, in the month of June, 1887, and prayed that such proceedings might be taken as would cause the judgment of said Hustings court to be reversed. Nevertheless, up to this day said supreme court of appeals of the State of Virginia has taken no action in the matter, and the judgment and sentence of said Hustings court of the city of Richmond against your petitioner remain in full force and unreversed. Your petitioner prays, therefore, that this Honorable Court will take such action in the premises as will cause said judgment to be reversed. The said supreme court of appeals and the said Hustings court are both in session at this time.

WM. L. ROYALL.

MR. CHIEF JUSTICE WAITE delivered the opinion of the court.

This motion is denied. It does not appear that the petitioner has ever applied to the supreme court of appeals of Virginia to carry the mandate of this court into effect.

Statement of the Case.

LYON v. PERIN AND GAFF MANUFACTURING COMPANY.

APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF INDIANA.

No. 201. Argued April 2, 1888.- Decided April 16, 1888.

A final decree in a suit in Equity that "the cause being submitted to the court upon bill, answer and replication, and having been duly considered, the court finds, adjudges and decrees that the equities are with the defendant" and dismissing the bill, is an adjudication on the merits of the controversy and constitutes a bar to further litigation on the same subject between the parties; and it is not open to the complainant to show in a subsequent suit in equity between the same parties, on the same cause of action, that the decree was made in his absence and default, and that no proof had been filed in the cause on either side.

THE following is the case, as stated by the court.

This is a suit in equity brought in the Circuit Court of the United States for the District of Indiana by Nelson Lyon against The Perin and Gaff Manufacturing Company, praying an injunction and damages for an alleged infringement of reissued letters-patent No. 9198, dated May 11, 1880, owned by complainant, for an improvement in "metallic stiffeners for

boot and shoe heels.”

The bill of complainant, after the usual recitals necessary in a suit of this character, among other things, sets forth that before the commencement of this action, to wit, in September, 1881, complainant having been informed and believing that the defendant was manufacturing an instrument which infringed said reissued letters-patent, filed his bill in equity against the said defendant in the United States Circuit Court for the Southern District of Ohio to restrain said defendant from further infringement; that the company appeared therein and answered, setting forth, among other things, the defence that said reissued letters-patent was invalid for want of novelty in the invention, and was not granted in accordance with law, denying also that the instrument used infringed the said

Citations for Appellants.

reissued letters-patent, and denying that complainant was entitled to any of the relief therein prayed, to which answer complainant filed his replication; that the statutory time for taking testimony having expired, and an extension thereof not having been granted, and the complainant not having been able to get the proof of the infringement in time, no evidence of the facts, matters, or things alleged in his complaint was offered or taken, and upon the call of the case before the court, counsel for complainant not appearing, a decree was entered, dismissing the bill; and that none of the issues were tried, and no decision rendered on the merits thereof, the suit having been dismissed merely for want of prosecution.

The defendants interposed a plea that the prior adjudication and decree of the suit mentioned in said plea (which is the same suit set forth in said bill of complaint) is a bar to the present suit. The court below found the plea to be good and sufficient; thereupon complainant filed his replication. The cause being at issue was referred to a master in chancery to take testimony, and to return the same into court with his conclusion of law thereon. Testimony was taken, and the master made and filed his report, in and by which said master concluded, as a matter of law, that the decree mentioned in said plea stands as an absolute adjudication of the rights of the parties upon the merits, and reported and found that the averments of the plea were sustained by the evidence.

Exceptions to said master's report having been overruled by the court and the report confirmed, a decree was entered that the defendants' plea was well taken in law and sustained by the proofs, and the bill was dismissed. An appeal from this decree brings the case here.

Mr. William H. King for appellant cited: Allen v. Blunt, 2 Robb Pat. Cas. 288; S. C. 3 Story, 742; 1 Greenleaf Ev., Redfield's ed. 563, § 528; Cromwell v. Sac County, 94 U. S. 351; Buerk v. Imhaeuser, 10 O. G. 907; De Florez v. Raynolds, 16 Blatchford, 397, 408; Rumford Chemical Works v. Hecker, 2 Bann. & Ard. Pat. Cas. 351; American Diamond Rock Boring Co. v. Sheldon, 4 Ban. & Ard. Pat. Cas. 551; Car

Opinion of the Court.

rington v. Holly, 1 Dickens, 280; Rosse v. Rust, 4 Johns. Ch. 299; Badger v. Badger, 1 Cliff. 237; Porter v. Vaughn, 26 Vermont, 624; Russell v. Place, 94 U. S. 606; Bank of the United States v. Beverly, 1 How. 134; Hughes v. United States, 4 Wall. 232; Walden v. Bodley, 14 Pet. 156; 08canyan v. Winchester Arms Co., 103 U. S. 261.

No appearance for appellee.

MR. JUSTICE LAMAR, after stating the case, delivered the opinion of the court.

The only material question for consideration is as to the effect of the decree of the Circuit Court of the United States for the Southern District of Ohio, rendered May 4, 1882, which is correctly found to be still in full force, as a bar to the prosecution of this suit.

It is well settled that, in order to render a matter res adjudicata, there must be a concurrence of the four conditions, viz.: (1) Identity in the thing sued for; (2) Identity of the cause of action; (3) Identity of persons and parties to the action; and (4) Identity of the quality in the persons for or against whom the claim is made. 2 Bouv. 467. 2 Bouv. 467. All these elements or conditions exist in this case, as shown by the master's report, which was to the effect that the averments of said plea were sustained by the evidence; that there was no controversy as to the identity of the cause of action, or of the identity of the parties in the two suits; that the bill was sworn to by the complainant, and the answer was sworn to by the defendants, and the cause submitted in due course; and that the decree rendered in the suit, pending in the court of Ohio was, as it professed to be, an absolute adjudication of the rights of the parties upon the merits, without any qualifying clause, and was conclusive of the rights attempted to be litigated in this case.

The dispute, however, seems to be as to the nature of the former judgment—that is, whether it is a final judgment or decree. It is contended on the part of appellant that such