¶1A rehearing must be denied. Counsel for appellant seem to misapprehend the opinion which has been rendered in this case. We have not passed upon the merits, but merely upon a question of pleading, holding that a general averment of performance of conditions precedent in a complaint is insufficient, except in cases arising out of contract. What must be the status of the relator in order to enable him to attack the defendant’s patent, we have not decided, but we have decided that a general averment that he has such a status is insufficient, and that the facts upon which he bases his right to attack the patent must be stated. Whether the relator has such a status or not, is a conclusion of law to be drawn from the facts, and is a question for the Court and not the pleader. It will be in time to pass upon the relator’s right to attack the defendants’ patent when the facts upon which that right is founded are properly presented.
¶2We are asked to modify our judgment so as to grant the relator leave to amend his complaint. However much we might be disposed to grant the petition in this respect, we are precluded from doing so by the course which counsel saw fit to pursue in the Court below. We can only review the action of the Court below, and if that be found right, the only judgment which we can render is one of affirmance. The relator had leave to amend his complaint in the Court below, but declined to do so—electing to stake his fortune upon the complaint as it then stood. Had he asked leave to amend, and had leave to amend been refused, there would have been action on the part of the Court which we could review. As it is, there has been no action in the Court below adverse to the relator’s right to amend, and it follows that no action can be had upon the question in this Court.
¶3The application for a rehearing and for a modification of the judgment must be denied.
¶4Mr. Justice Currey, having been of counsel, did not sit on the trial of this case.