Page:Federal Reporter, 1st Series, Volume 6.djvu/725

 SMITH V. MEBEIAM. 713 �assignee to E. L. Barton, who the next day made a convey- ance for part of that interest to his father, John Barton, Esq. The consideration for the conveyance to the latter was.an exchange of properties between the father and son. Mr. John Barton has been heard in opposition to the petition to set aside the sale to McElroy. In his answer and testimony he states that he was an entire stranger to the court proceed- ings, and knew nothing of the matter uniil after McElroy got his deed from the assignee, and that he made the ex- change of properties with his son and took the conveyance from the latter in entire good faith. But, in view of the relations between the parties, and the peculiar circumstances of the case as disclosed by the testimony, I am of opinion that he is chargeable with the notice that the sale to McElroy was impeachable, and liable to be set aside by the court. The conveyance to Mr. Barton, Sr., under ail the facts, in my judgment ought not and does not constitute any obstacle to an order setting aside the sale to McElroy and vacating the decree under which it was made. Such order will be made, and a public sale ordered, upon the filing of a bond, with approved surety, to secure the bid at public auction oflfered in the stipulation which accompanies the petition of W. K. Jennings. ���Smith and others v. Merbum and othera. ((Hreuit Court, D. Massachusetts. January 22, 1881.) �1. Ue-IsSDB — COMMISSIONBR OF PATENTS. �The decision of the commissioner of patents as to the mere neces- sity of a re-issue is conclusive, �2. Same— Same. �A mistake as to the necessity of such re-issue does not constitute an excess of jurisdiction. �3. Samb— Variation op Claims. �Upon such re-issue the claims may bevaried in order to express the real invention. ��� �