The limit of appeal in the present case expired on the 13th of May last, as originally assigned by the Office; but on application by the appellant to the Secretary of the Interior, he suggested to the Commissioner the propriety of extending the time of appeal to the 20th of May, which was accordingly done, and the appeal perfected within that period. The appellee protested, both before the Office and before me, against the extension, and denied the jurisdiction of the Secretary to direct, as also that of the Commissioner to award, an extension. Had the Commissioner refused to acquiesce in the suggestion of the Secretary I might have been called upon to determine how far he possessed the right to control the action of the Office. But inasmuch as the Commissioner complied with the suggestion of the Secretary, and did in fact grant the extension, no question is before me as to the power of the Secretary; and as the Commissioner has, within the terms of the eleventh section of the act of 1839, discretion to fix the limits of appeal, he may clearly, while the case is before him, for good cause, at any time exercise that discretion; and the appeal being within the limit finally assigned by him, I must overrule the objection taken to my exercise of jurisdiction, and determine that the case is properly before me upon its merits.

*640The first error, assigned by the appellant in his reasons of appeal from the decision of the Commissioner is that the applicant is not entitled to a patent because the invention had been in public use with the applicant’s consent or allowance for more than two years prior to his application. The first, second, and third articles of the agreement of admissions made between the parties on the 10th of March, 1859, signed by their counsel, of record in the case, show distinctly that Morris knew of the application of Young for a patent pending the application which was made on the 28th of November, 1855, and the patent granted March 26th, 1856; that Morris and his assignee (Jones) both knew of Young’s patent shortly after it was granted, and that they both knew of the manufacture by Young of the patented articles shortly after he began to make them, and that they were publicly sold in Philadelphia and New York, and that the manufacture had been constant from thenceforth. It also appears that with this knowledge both parties remained entirely quiescent until, on the 16th of August, 1858, Jones proposed to Morris that if he would testify to the priority of the invention by himself, and this weré sufficient proof, he would join him in an attack upon Young’s patent. (See Jones’ letter, dated August 14th, 1858, marked “Jones’ Exhibit 13.”) Soon after this $500 (theprice of the oath) wás paid; and on the 4th of September, 1859, the application for a patent was made in the name of Jones, as assignee. Upon this state of facts it is entirely unnecessary to consider any other portion of the testimony or any other of the reasons of appeal. A clear case of disability to prosecute a claim for a patent is made out within the seventh section of the act of 1839; and although it may be true, as held by the Commissioner, that Morris was the first inventor, and that Young obtained the knowledge of the invention from Morris, yet his willful omission to ap'ply for a patent within two years after he became aware that another was publicly using and claiming the invention, and his interposing no warning or objection whatsoever, shuts him out entirely from any right to a patent. But I deem it unnecessary to inquire into or decide the question of priority and alleged fraud, and therefore express no opinion upon them. For the reason assigned, the determination of these questions would be sup er erogatory.

Now, therefore, I hereby certify to the Hon. William D. Bishop, Commissioner of Patents, that having assigned the 6th day of June instant for hearing said appeal, and the parties having been assisted by written arguments of counsel, I have considered said cause, and I do therefore adjudge and determine that there is error in the decision of the Commissioner of Patents heretofore rendered in this case awarding a patent to D. D. Jones, assignee of Edmund Morris; that said decision is hereby reversed, and that a patent must be refused and his said application be finally rejected and dismissed.