3 F.(2d) 577 applying the law of the case, is Lackner v. Starr, 2 F.(2d) 516, decided at the last session. The rule is expressed in Re Sanford Fork & Tool Co., 160 U. S. 247, 16 S. Ct. 291, 40 L. Ed. 414, and restated in Re Potts, 166 U. S. 266, 17 S. Ct. 521, 41 L. Ed. 994, as follows: "When a case has been once decided by this court on appeal, and remanded, whatever was before this court and disposed Turning to the record to ascertain what was decided on the former appeal, and what fact or facts, if any, supposedly new, were brought to the attention of the District Court which occasioned the change in the decree, we find that subsequent to the entry of the original decree in the District Court, appellant, the holder and owner of the patent herein involved, filed "a petition and application to surrender said Guth patent, No. 1,076,418, and to grant a reissue patent on said application and said surrender of said original patent," and pursuant to "said petition and application there was granted and issued a reissue patent, No. 14,680." Such fact, however, was brought to the attention of the Circuit Court of Appeals on the previous appeal, where appellee (then appellant), in addition to attacking the valid ity of the patent in suit and disputing its infringement, asked that the cause be dismissed because, "subsequent to the entry of the decree in the District Court, patentee had surrendered its patent and sought to secure a reissue patent." Disposing of that issue, this court said: "Appellant's motion for a dismissal of the C. C. A. 497; Great Northern Ry. Co. v. Western Union Tel. Co., 174 F. 323, 98 C. C. A. 193; Burns v. Cooper, 153 F. 151, 82 C. C. A. 300; James v. Central Trust Co., 108 F. 931; State v. Dickinson, 63 Neb. 872, 89 N. W. 431; Smith V. Vulcan Iron Works, 165 U. S. 526, 17 S. Ct. 407, 41 L. Ed. 810. entire cause because, since the submission of the case on this appeal, the original patent was surrendered and a reissue patent granted, must be denied. It is unnecessary for us to consider what the effect of a surrender and a reissue, not modifying in any manner the claims in suit, but adding another claim, would be, if the suit on the original patent were undetermined, or a decree therein were interlocutory in the true sense as to the merits of the patent controversy; in the case before us, the surrender and reissue were effective only after the entry of the decree determining validity and infringement and granting a permanent injunction; and in National Brake & Electric Co. v. Christensen et al., 258 F. 880, 169 C. C. A. 600, decided April 29, 1919, we held, on full consideration, that such a decree was final in essence, even though interlocutory in time relation. The rights of the parties are determined as of the date of such a decree, a subsequent surrender of the patent does not involve an abandonment of such rights (Mevs v. Conover, 125 U. S. 144, 145, 23 L. Ed. 1008), and the recovery on the accounting will not be based upon the surrendered patent, but upon that decree which itself is based upon a patent in full force at the date of its entry." To determine whether there should be a reversal of the order now appealed from, we are first confronted with the existence of error in our previous decision, and, if such exists, the application of the law of the case to the facts of this case. The degree of finality accorded the decree upon the former hearing, based upon the authority of the Christensen Case, 258 F. 880, 169 C. C. A. 600, is at variance with the views expressed in the subsequently decided case of Simmons Co. v. Grier Bros. Co., 258 U. S. 82, 42 S. Ct. 196, 66 L. Ed. 475. The writer of this opinion, the only judge of the present court who participated on the previous hearing, acknowledges his full share of responsibility for the conclusion there reached. We at that time relied upon the law as announced in the Christensen Case. Had the case of Simmons Co. v. Grier Bros. Co., supra, been decided, a different conclusion would have been announced. [2] There is no room for controversy as to the effect of the surrender of the patent sued upon and the issuance of a reissue patent. The surrender of this patent, followed by the issuance of a reissue patent, not only nullified the original patent, but took from the patentee his right to recover damages for infringements committed prior to the cancellation of the old patent. McCormick Company v. Aultman Company, 169 U. S. 606, 18 S. Ct. 443, 42 L. Ed. 875; Reedy v. Scott, 90 U. S. (23 Wall.) 352, 23 L. Ed. 109; Peck v. Collins, 103 U. S. 660, 26 L. Ed. 512; Meyer v. Pritchard, 131 U. S. CCIX, Appx., 23 L. Ed. 961; Moffit v. Garr, 66 U. S. (1 Black.) 273, 17 L. Ed. 207; Lattig & Goodrun v. Dean, 117 O. G. 1798. Are we in a position to now correct the error? In other words, should we apply the law of the case? To what extent the law of the case should govern the disposition of a pending suit in the appellate court which made the erroneous pronouncement has always been and always will be a more or less vexatious question. [3] The rule of the "law of the case" differs, to a certain extent, both in the reasons back of it and in its conclusiveness, from the rule of res adjudicata, and also from the doctrine of stare decisis. As to its conclusiveness, it lies somewhere between the two. It is doubtless more persuasive upon the court that pronounced it than the doctrine of stare decisis; but it is, except in the lower court, not entitled to the conclusiveness and finality that is accorded the plea of res adjudicata. It is conclusive with the lower court, and though cases may be found making it also conclusive with the appellate court pronouncing it (Standard Sewing Machine Co. v. Leslie, 118 F. 557, 55 C. C. A. 323; Roberts v. Cooper, 61 U. S. [20 How.] 467, 481, 15 L. Ed. 969, and cases there cited; Thompson v. Maxwell, 168 U. S. 451, 18 S. Ct. 121, 42 L. Ed. 539; Development Co. of America v. King, 170 F. 923, 96 C. C. A. 139; U. S. v. Axman, 193 F. 644, 113 C. C. A. 512; Olsen v. North Pac. Lumber Co., 119 F. 77, 55 C. C. A. 665; Thatcher v. Gottlieb, 59 F. 872, 8 C. C. A. 334; Burow v. Grand Lodge S. of H., 134 F. 1021, 67 C. C. A. 679), the better rule appears to be that, unless the previous decision is clearly erroneous, announces a wrong rule of law, and one mischievous in its practical operation, it should be followed. I appreciate this court has expressed itself as favoring unqualified adherence to the law as pronounced, whether erroneous or not. Standard Sewing Mach. Co. v. Leslie, 118 F. 557, 55 C. C. A. 323. Notwithstanding the holding of this case, the view that appeals to us, and which we adopt, merely recognizes the law of the case as one of public policy and private peace, and one to be followed generally, and departed from rarely. It is, however, not an inexorable rule, and should not be applied where the law as announced is clearly erroneous, and establishes a practice which is contrary to the best interests of society, and works a manifest injustice in the particular case. Messinger v. Anderson, 225 U. S. 436, 32 S. Ct. 739, 56 L. Ed. 1152; Johnson v. Cadillac Motor Car Co. (C. C. A.) 261 F. 878, 8 A. L. R. 1023; Raydure v. Lindley (C. C. A.) 268 F. 341; Chesapeake Co. v. McKell, 209 F. 514, 126 C. C. A. 336; Chase v. United States (C. C. A.) 261 F. 833; United States Annuity & L. Ins. Co. v. Peak, 129 Ark. 43, 195 S. W. 392, 1 A. L. R. 1267; Johnson v. Cadillac Motor Car Co (C. C. A.) 261 F. 878, 8 A. L. R. 1033. The present case is, we think, clearly distinguishable from the case of Lackner v. Starr, supra. In fact, a study of the two cases may serve to emphasize the distinction which justified the application of the law of the case in Lackner v. Starr, and in rejecting it in the instant case. In the Lackner v. Starr Case we found no pronouncement of the law by the Supreme Court between the dates of the first and second decision. If error was committed in the rendition of the first opinion by this court, it was due to a misunderstanding or a misapplication of the holdings of certain Supreme Court decisions. The same decisions, and no others, were cited on the second appeal. [4] In the present case, the court on the former appeal relied upon a decision which at that time expressed the law in this circuit. Between the hearings on the two appeals the Supreme Court announced a decision at variance with the opinion expressed in the case relied upon (the Christensen Case, 258 F. 880, 169 C. C. A. 600) as authority by this court. Moreover, the opinion deals with a matter of practice of large moment to the patent profession. Likewise, no great hardship follows because appellant as the holder of a reissue patent, may assert his rights in a suit thereon unprejudiced by the decision herein. Appellant, when it surrendered its patent No. 1,076,418, and secured in lieu thereof reissue patent No. 14,680, lost its right to prosecute its pending suit to final decree. Such facts being brought to the attention of the court wherein the suit is pending, it became the duty of the court to dismiss the suit. While the decree before us contained some provisions other than dismissal, appellant is not complaining thereof. The decree is affirmed. In re L. M. AXLE CO. 8 F.(2d) 581 L. M. AXLE CO. v. WELLS. (Circuit Court of Appeals. 1. Bankruptcy ~440-Order dismissing petition to review order approving trustee's report of sale reviewable only on petition to revise. An order dismissing petition of bankrupt to review referee's order approving trustee's report of sale is properly reviewable on petition to revise and not by appeal. 2. Bankruptcy 252-Jurisdiction to approve compromise conferred by Bankruptcy Act not by general orders in bankruptcy. Bankruptcy Act, § 27 (Comp. St. § 9611), confers jurisdiction on bankruptcy court to approve a compromise made by the trustee of any controversy arising in administration of the estate, and such jurisdiction is not conferred by general orders promulgated by Supreme Court in accordance with provisions of section 30 (Comp. St. § 9614). 3. Bankruptcy 22-General orders relating to procedure should be enforced, but, where purposes have been accomplished, technical objection unavailable. The general orders promulgated by Supreme Court under Bankruptcy Act, § 30 (Comp. St. § 9614), in so far as they relate to procedure and prescribe rules of practice, must be construed with reference to the purpose to be accomplished. It is the duty of the bankruptcy court to enforce these orders; but, where such purposes have been fully accom plished, a mere technical objection is unavaila ble. A written application, filed under provision of General Order XXXIII, is sufficient to invoke jurisdiction of bankruptcy court conferred by Bankruptcy Act, § 27 (Comp. St. § 9611), to approve a compromise made by trustee of any controversy arising in administration of estate, and this necessarily includes jurisdiction to determine sufficiency of application, and, if necessary, to grant leave to amend. 6. Bankruptcy 252-Written application of trustee for approval of compromise held sufficient when construed in connection with report of sale. A written application of trustee under General Order XXXIII to have approved a com promise under authority of Bankruptcy Act, § 27 (Comp. St. 9611), which sets forth the subject-matter of the controversy, taken in connection with report of sale, held to sufficiently advise the court and interested parties as to the trustee's reason for recommending compromise, and objection that application was insufficient was untenable. Appeal from and Petition for Revision of Proceedings of the District Court of the United States for the Eastern Division of the Northern District of Ohio; Paul Jones, Judge. In the matter of the L. M. Axle Company, bankrupt. From an order dismissing the petition of the bankrupt to review an order of the referee approving the trustee's report of sale, the bankrupt appeals and petitions to revise. Appeal dismissed, and order dismissing the petition to review affirmed. Rufus Day, of Cleveland, Ohio (Day & Day, of Cleveland, Ohio, of counsel), for appellant. Howard F. Burns, of Cleveland, Ohio (Howard F. Burns, of Cleveland, Ohio, of counsel), for appellee. Before DENISON, MACK, and DONAHUE, Circuit Judges. DONAHUE, Circuit Judge. [1] This case is here upon a petition to revise and upon appeal from an order of the bankruptcy court dismissing the petition of the bankrupt to review an order of the referee approving the trustee's report of sale, including as incident thereto, and as part of the conditions of sale, the settlement and compromise of controversies in reference to debts and other claims due or belonging to the estate of the bankrupt from the purchaser and his associates and debts against the bankrupt estate claimed to be due and owing to the purchaser. The case is properly before this court upon petition to revise. In re Baxter, 269 F. 344, 346; Barnes v. Pampel, 192 F. 525, 113 C. C. A. 81. The remedy by appeal and petition to revise are mutually exclusive. In re National Discount Co., 272 F. 570. For the reasons stated the appeal must be dismissed. [2, 3] The jurisdiction of the bankruptcy court to approve a compromise made by the trustee of any controversy arising in the administration of the estate is conferred by section 27 of the Bankruptcy Act (Comp. St. § 9611) and not by the General Orders promulgated by the Supreme Court in accordance with the provisions of section 30 (Comp. St. § 9614) of that Act. These General Orders have the force and effect of law, but, in so far as they relate to procedure and prescribe rules of practice, they must be construed the same as statutes of like character with reference to the purpose to be accomplished. General Orders XXVIII and XXXIII cover in part the same subject-matter and relate particularly to procedure. They prescribe a rule of practice by which any and all persons interested in the bankrupt estate may be fully advised of the matters to be presented to the court for its approval and afford an opportunity to such interested parties to be heard. It is the duty of the bankruptcy court to enforce the provisions of these general orders, but, where the purposes thereof have been fully accomplished, a mere technical objection cannot avail. Montague Mfg. Co. v. Ten Weeges (C. C. A.) 297 F. 221. General Order XXVIII provides that the trustee, the bankrupt, or any creditor who has proved his debt may file a petition for authority to settle "any debts or other claims due or belonging to the estate of the bankrupt," but does not specify what such petition shall contain. [4] A written application for authority to settle such controversies is a petition within the meaning of General Order XXVIII, regardless of whether it be designated "petition" or "application." In so far as the written application in this case asks approval or authority to settle debts due or belonging to the estate of the bankrupt, it meets every requirement of this General Order. General Order XXXIII relates particularly to an application for authority to submit a controversy arising in the settlement of a demand against the bankrupt's estate or for a debt due to it, to the determination of arbitrators. The provision as to what shall be set forth in the application is sufficient to show that it is the purpose and intent of this General Order to require the application to be in writing. If a controversy is to be submitted to arbitrators, it is clear that it would be advantageous, if not absolutely necessary, to set forth in writing the subject-matter of the controversy and the reasons why the trustee thinks it proper to submit that controversy to arbitration. [5] A written application, filed under the provision of General Order XXXIII, is sufficient to invoke the jurisdiction of the bankruptcy court conferred by section 27 of the Bankruptcy Act, to approve a compromise made by the trustee of any controversy arising in the administration of the estate, and this necessarily includes jurisdiction to determine the sufficiency of the application filed for that purpose, and, if found insufficient, to grant leave to amend. Objections to the sufficiency of the application should be made at the first opportunity. In this case the bankrupt appeared in court at least upon two occasions before any objection whatever was made in reference to the insufficiency of this application. At these two hearings the trustee fully stated the nature of the controversy and his reasons for believing that it was proper and to the best interest of the bankrupt's estate to settle the controversy. The bankrupt also appeared by counsel, and his objections to such settlement were fully stated. It therefore appears that the bankrupt and all other persons interested in the settlement of this estate were fully advised of the exact nature of these claims, the controversy in reference thereto, and the reasons that induced the trustee to think they should be settled and compromised. The objection filed by the bankrupt not only attacks the sufficiency of the application, but also contains a plea to the merits, in that it alleges reasons why the compromise of these debts should not be authorized or approved and the sale to Durell should not be confirmed. It therefore appears that the purposes of General Order XXXIII in reference to what the written application shall contain were fully accomplished. Pullman Couch Co. v. Eshelman et al., 1 F. (2d) 885, in which case an application for a writ of certiorari was denied by the Supreme Court. Leach v. Burr, 188 U. S. 510, 513, 23 S. Ct. 393, 47 L. Ed. 567; Montague Mfg. Co. v. Ten Weeges, supra. [6] However that may be, the application of the trustee, into which is copied the offer of Durell to purchase, does set forth the subject-matter of the controversy, and, taken in connection with the report of sale which was heard therewith and as a part thereof, does advise the court and interested parties as to the reason why the trustee was of the opinion that these claims should be compromised. The objection that the application was not sufficient to invoke the jurisdiction of the court because these reasons were not clearly and distinctly stated in the written application, although fully appearing in the record of the proceedings had before the referee, and evidently clearly understood by the bankrupt and all other interested parties, cannot be sustained. Pullman Couch Co. v. Eshelman et al., supra; Petition of Baxter in Re Orinoco Co. REINECKE v. PEACOCK 3 F.(2d) 583 (C. C. A.) 269 F. 344, 347; section 269, Judicial Code (Comp. St. § 1246). For the reasons stated, the order of the District Court dismissing the petition to review is affirmed. ved 271 W 64330 Zed. 128, 481 REINECKE, Collector of Internal Revenue, v. PEACOCK. (Circuit Court of Appeals, Seventh Circuit. December 12, 1924.) No. 3431. 1. Internal revenue 28-That revenue statute is erroneously construed or unconstitutional does not give federal court jurisdiction to enjoin collection of tax. That a revenue statute is erroneously construed by the department, or even that it is unconstitutional, does not give a federal court jurisdiction to enjoin collection of the tax under it, as against the prohibition of Rev. St. § 3224 (Comp. St. § 5947). 2. Internal revenue 28-Collection of tax may not be enjoined as incidental to other equitable relief. That a suit is primarily one between bene ficiaries of a trust and the trustees to declare and enforce the duties of the latter under the trust indenture does not extend the equitable power of the court to the restraining of a collector of internal revenue from the collection of a tax from the trust estate, as incidental to or in aid of the relief sought, unless under very exceptional circumstances, in view of the prohibition of Rev. St. § 3224 (Comp. St. § 5947), though it may enjoin the trustees from voluntarily paying the tax. 3. United States 137-Special appearance of district attorney as amicus curiæ held not to bind the United States. The special appearance of a district attorney in a suit by a beneficiary of a trust against the trustees, solely to suggest want of jurisdiction to grant the relief sought by reason of Rev. St. § 3224 (Comp. St. § 5947), and disclaiming any appearance for the United States, held not a waiver of the application of the statute, so as to confer jurisdiction after the collector of internal revenue was brought in as a defendant. 583 Suit in equity by Emelie W. Peacock against Mabel G. Reinecke, Collector of Internal Revenue for the First Internal Revenue District of Illinois, and others. From the decree, the Collector appeals, and complainant moves to dismiss the appeal. Motion to dismiss denied, and decree against the Collector reversed, with directions. Appellant, collector of internal revenue for the First internal revenue district of Illinois, appeals from a decree of the District Court enjoining the collection of an income tax assessed against trustees of certain property, of which trust appellee is one of several beneficiaries. The bill of complaint sets out the indenture of trust, which provides that it shall be discretionary with the trustees as to what portion of the income from the trust estate shall be distributed, but that, when distributed, such income (above certain fixed charges and payments) shall be divided into six equal parts, one of which shall be paid appellee. It is further charged that for the years 1918 and 1919 the trustees elected to distribute, and did distribute in each of said years, the entire income, and for said years appellee and the other beneficiaries included in their individual income tax returns the amounts so received by them as part of their incomes for these years, and the income tax thereon was duly assessed and paid by the respective distributees; that the amount of her income tax paid upon her said distributive share was for the year 1918 $5,446.14 and for the year 1919 $17,920.11. The bill further alleges that in 1923 the United States Bureau of Internal Revenue maintained that under the Revenue Act of 1918 the entire income of the trust estate was taxable to the trustees, and accordingly assessed to the trustees an income tax thereon, based on the entire income received for these years, respectively, and demanded the payment by the trustees as income tax for the year 1918 the sum of $119,778.75, and 1919 $162,842.50, and threatened the trustees with penalties if the tax as assessed was not paid by the trustees on or before May 4, 1923. It is further charged that the trustees had stated that they had decided they must make the payments demanded, notwithstanding appellee's request that they do not do so, and that they will make the payments unless enjoined therefrom by the court. The bill sets forth appellee's contentions wherefor said assessment by the Bureau of Internal Revenue is unlawful and void, asserting that, if such assessment upon the |