§ 119. Where a cause, which in its general nature is equitable, is commenced in a state court in Louisiana, and removed therefrom to the circuit court of the United States, it should, like any other case in equity, be carried to the supreme court by appeal and not by writ of error. Surgett v. Lapice, 8 How., 64.

§ 120. Cases in equity are removed from the circuit courts, and from district courts sitting as circuit courts, by appeal, and not on writs of error. They are heard upon the proofs sent up with the record from the court below, and no new evidence can be received in the supreme court. Blease v. Garlington, 2 Otto, 6.

§ 121. The only remedy for irregular proceedings by a circuit judge in a suit in equity is by an appeal from the final decree, and not by mandamus. Ex parte Whitney, 13 Pet., 408. § 122. Practice where wrong process is used.- Where a writ of error is not the proper process to bring up the record, it does not follow that such an order should be made as will constitute a bar to another attempt to bring the matter up by an effectual and proper process. The general rule is, that the writ will be entertained, and a judgment of affirmance entered, unless the record shows some error of which the revisory court can take cognizance. But to this rule there are exceptions; and it will be proper, in exceptional cases, to dismiss the writ without prejudice to other and further proceedings. Ruddick v. Billings,* Woolw., 330. See § 98.

§ 123. If an action at law is brought to the supreme court by appeal instead of by writ of error, it must be dismissed. Bevins v. Ramsey, 11 How., 185.

§ 124. Though a writ of error is the proper proceeding for bringing before the supreme court for review the order of a circuit court remanding an action at law removed to it from a state court, yet if an appeal was taken, and it appears that the order was properly made, the case will be retained and the order affirmed. (Writs of error and appeals having been previously taken indiscriminately in actions at law and in suits in equity in such cases, the effect of the irregularity was not decided, but the matter was disposed of on its merits.) Babbett v. Clark, 13 Otto, 611.

§ 125. Seizure case. On a question whether an appeal or a writ of error was the proper process, the court (NELSON, J.) rendered the following opinion: "A seizure case, such as the present one is, in which the parties are entitled to a trial by jury, can only be reviewed on a writ of error. And if a writ of error had been taken in this case, this court could not have entertained it, because there is no bill of exceptions; and there could have been none, as the court below was made the judge of both the law and the fact. The record should have been made up in form, as in the case of a writ of error, with the proper exceptions to the admission or rejection of testimony, or to the instructions of the court to the jury. The appeal is dismissed for want of jurisdiction, but without costs." United States v. Fifteen Hogsheads of Brandy, 5 Blatch., 106.

§ 126. Where goods are seized on land and libeled for a violation of the revenue laws, the case is a civil cause, and must be removed to the circuit court by writ of error. United States v. Thirty-seven Barrels of Rum,* 1 Woods, 19.

§ 127. Confiscation proceedings to condemn land, though in form actions in admiralty, are nevertheless proceedings at common law, and a writ of error to the district court is the proper proceeding to review the judgment in such cases. Semple v. United States, Chase's Dec., 262.

§ 128. A writ of error and not an appeal is the proper proceeding for carrying to the appellate courts cases arising under the confiscation acts. Brown v. United States, 1 Woolw., 199. § 129. An information for a forfeiture under the internal revenue laws cannot be brought from the circuit to the supreme court upon appeal. It is a civil action. United States v. Emholt, 15 Otto, 415.

§ 130. If a part of the fund in a district court, recovered in a proceeding for a forfeiture, consists of the proceeds of a coasting license bond, a proceeding by the informer for his share of such penalty is a proceeding at common law, and no appeal lies to the circuit court from the decision of the district court in such a proceeding. It seems that a writ of error is the proper proceeding. Westcot v. Bradford, 4 Wash., 496.

§ 131. State courts.- Appeals do not lie from a state court to the supreme court in any Slaughter-house Cases, 10 Wall., 297. See the case, §§ 1484-92. See § 96.

case.

§ 132. New jurisdiction.— Where a new jurisdiction is created by statutory provision authorizing a proceeding not known to the common law, a writ of error will not lie. Campbell v. Strong,* Hemp., 195.

§ 133. Territorial court. Where there has been no trial by jury, a case must be brought up from the territory of Wyoming by appeal, and not by writ of error. United States v. Railroad Co.,* 15 Otto, 263. See § 97.

§ 134. A suit which, in its nature, is equitable, should be taken to the supreme court of the United States from the supreme court of a territory by appeal, even though by the practice in

the territorial courts the distinction between actions at law and suits in equity has been abolished. The laws or practice of a territory cannot regulate the process by which the supreme court of the United States exercises its jurisdiction. Brewster v. Wakefield, 22 How., 128. See § 93.

§ 135. In the case of a proceeding in the probate court of Utah, under the town site law, which is appealed to the district court, and from there to the territorial supreme court, the mode of carrying it to the supreme court of the United States is by appeal and not by writ of error. Stringfellow v. Cain, 9 Otto, 611; Cannon v. Pratt, id., 619.

§ 136. Bankruptcy.- Where an assignee in bankruptcy filed a petition in the district court, praying for the adjustment of liens and the sale of real estate, the petition was treated as a suit in equity, and as such was properly brought to the supreme court by appeal, the court holding that if it was a part of the suit in bankruptcy it was not appealable. Milner v. Meek,* 5 Otto, 256.

§ 137. Mandamus.- No appeal lies from the order of the supreme court of the territory of Florida confirming an order of the superior court in issuing a writ of mandamus. The remedy is by writ of error. Ward v. Gregory, 7 Pet., 633.

§ 138. Duty bond.— A suit at law on a duty bond must come up by writ of error, and not by appeal. Sarchet v. United States, 12 Pet., 143.

§ 139. Official bond.— An action on an official bond must be removed to the circuit court by writ of error; an appeal will not lie. United States v. Haynes,* 2 McL., 155.

§ 140. Foreclosure.- An appeal is the proper remedy to bring up a proceeding in the nature of a proceeding to foreclose a mortgage in chancery; a writ of error will not lie. Marin v. Lalley, 17 Wall., 14. See the case, $$ 321, 322.

§ 141. Land claims.- A proceeding under the act of 1851, for the settlement of land claims in California, is of the nature of a proceeding in equity, and an appeal is the proper remedy. United States v. Circuit Judges, 3 Wall., 673. See the case, §§ 154-159.

IV. WHEN AN APPEAL OR A WRIT OF ERROR WILL LIE.

1. In General.

SUMMARY - Dismissal, § 142.— Cross-appeals, § 143.— Prize case transferred to supreme court, § 144.- Appeal not provided for by law, § 145.— Motion to apply money in court, § 146.— Error coram vobis, § 147.

§ 142. Where the court sustains one of two defenses set up by a respondent, and dismisses the bill with costs, the respondent cannot appeal. Corning v. Troy Iron and Nail Factory, SS 148-151.

§ 143. Where a decree is reversed on an appeal by the complainant, there then remains no decree from which the respondent can appeal. Where one party appeals, and the other desires a more favorable decree, he must take a cross-appeal. Ibid.

§ 144. A decree was entered in a prize case, and an appeal was taken to the circuit court. The latter court transferred the case to the supreme court. Held, that the supreme court had no jurisdiction. The Alicia, §§ 152, 153.

§ 145. Where a proceeding under the act of 1851, for the settlement of land claims in California, was transferred from the district to the circuit court, pursuant to the provisions of the act of 1864, it was held that an appeal would lie from the decision of the circuit court, although not authorized by the act of 1864; that the proceeding was of the nature of a proceeding in equity. (Justices FIELD, GRIER and MILLER dissent.) United States v. Circuit Judges, 154–159.

§ 146. Property was sold in Pennsylvania at judicial sale, and the money paid into court. Motions were then made by parties holding judgments to have the money applied on their judgments. Held, that neither an appeal nor a writ of error would lie from a decision on such motions. Bayard v. Lombard, § 160.

§ 147. A writ of error will not lie from a judgment rendered on a writ of error coram vobis. Pickett v. Legerwood, §§ 161–163.

[NOTES.-See §§ 164-187.]

432

CORNING v. TROY IRON AND NAIL FACTORY.

(15 Howard, 451-467. 1853.)

APPEAL from U. S. Circuit Court, Northern District of New York.
Opinion by MR. JUSTICE GRIER.

STATEMENT OF FACTS.-The Troy Iron and Nail Factory filed their bill in the court below, claiming to be assignees of a patent granted to Henry Burden, for a "new and useful improvement in the machinery for manufacturing wrought nails or spikes." The bill charges that the appellants, Corning & Company, have infringed their patent, and prays for an injunction and an account of profits, etc. The answer of the respondents below took defense on two grounds: First, that Burden was not the first and original inventor of the machine patented; and secondly, that the respondents used their machine under a license from the patentee. The court below sustained the defense on the latter ground, and entered the following decree: "Therefore it is ordered, adjudged and decreed, that the said bill of complaint is hereby dismissed, with costs to be taxed, and that the defendant have execution therefor."

§ 148. Where the court sustains one of two defenses, and dismisses the bill with costs, the respondent cannot appeal.

The case is now before us on a motion to dismiss the appeal. Looking at the case as exhibited to us by the record, it appears to be an appeal by respondents from a decree dismissing the complainant's bill with costs. It often happens that a court may decree in favor of a complainant, but not to the extent prayed for in his bill, and he may have just cause of appeal on that account. But the prayer of the respondent's answer is, that "he be hence dismissed, with his reasonable costs and charges, on this behalf most wrongfully sustained." And, having such a decree on the present case, he cannot have a more favorable one. It is true that the petition for the appeal in this case prays only. "that so much of such parts of said decree as declares, orders, adjudges and decrees as follows, to wit: And it appearing to the said court that the said Henry Burden was the first inventor of the improvement,' etc., may be reversed, and that the appellants may be restored to all things which they have lost by reason thereof." But the matter complained of forms no part of the decree of the court below. It shows only that the judge, in reciting the inducement or reasons for entering a decree in favor of the respondents below, was of opinion that they were entitled to such a decree because they had succeeded in establishing one only of the two defenses alleged in their answer. It is the opinion of the court on a question of fact involved in the case, but not affecting the decree. If the decree be correct, the party in whose favor it is given has no right to complain; yet his appeal prays that it "may be reversed, and the appellants restored to all things which they have lost by reason thereof;" and the record shows they have lost nothing. If the decree be reversed, according to the prayer of the appellants, the court must necessarily enter a decree for the complainants below. This would, probably, not meet the views of the appellants. They have put themselves in the anomalous position either of asking for the affirmance of the decree from which they have appealed, or of requesting this court to reverse a decree in their favor, and send back the record to the court below, with directions to enter the very same decree, but to assign other reasons for it. The court were not bound to give any reasons for their decree. The law gives the party aggrieved an appeal from a final decree of an inferior court. But it does not give the party who is not aggrieved an appeal

from a decree in his favor, because the judge has given no reasons, or recited insufficient ones, for a judgment admitted by the appellant to be correct.

§ 149. Where a decree is reversed on an appeal by the complainant, there then remains no decree from which the respondent can appeal.

There is a part of the history of this case which does not appear on the record; but, being known to the court, and assumed by counsel on both sides to make part of the case, it will be necessary to notice the case under that aspect. The decree in favor of the appellants, which is now appealed from, has already been before this court on an appeal by the complainant below. The parties were then fully heard, the decree of the circuit court reversed, and the case remanded for further proceedings. It is reported in 14 How., 194. It appears, therefore, that there is no such decree as that which is now complained of. The decree of the circuit court has been entirely annulled, reversed and set aside by this court. Before that was done, the appellants had a full hearing on every point of defense set up in their answer. The court below had decided that the defendant had a good defense under his plea of license, but not under the plea that Burden was not the first inventor of the patented machine. This court has decided that the appellant's defense was insufficient on both pleas. The language of the court is, 14 How., 208: "That the defendants have failed to prove that Burden was not such first inventor; and, in our opinion, the evidence given by them on that point rather serves to establish the originality of the invention than to impair it. The appellants stand upon the patent as the first which was granted for the bending lever; and they may well do so, until other evidence than that in this record shall be given to disprove its originality."

§ 150. Where the defendant appeals, and the complainant desires a more favorable decree, he must take a cross-appeal.

It is plain, therefore, that, under the guise of an appeal from the decree of the circuit court, this is an appeal, in fact, from the decision of this court. For there is no other decree existing in the case except the decree of this court. There must be an end of litigation some time. To allow a second appeal to a court of last resort, on the same questions which were open to dispute on the first, would lead to endless litigation. It is said by this court, in Martin v. Hunter, 1 Wheat., 355: "A final judgment of the court is conclusive upon the rights which it decides, and no statute has provided any process by which this court can revise its judgment." See, also, Sibbald v. United States, 12 Pet., 488. It follows, therefore, that when a complainant has a decree in his favor, but not to the extent prayed for in his bill, and the respondent appeals, if the complainant desires a more favorable decree, he must enter a cross-appeal, that when the decree comes before the appellate court he may be heard. For, when the decree is either affirmed or reversed by the appellate court, it becomes the decree of that court and cannot be the subject of another appeal. But in this case, where the decree of the court below dismissed the bill, no appeal by the respondent was necessary. He had a full opportunity to urge every defenseset up in his answer. The printed arguments show that the defense, for want of originality in the patent, was relied upon as a ground for affirming the decree of the court below, and, as we have already shown, was distinctly passed upon and overruled by this court.

§ 151. Nothing is brought up by a second appeal except proceedings subsequent

to the mandate.

A second appeal lies only when the court below, in carrying out the mandate

of this court, is alleged to have committed an error. But, on an appeal from the mandate, it is well settled that nothing is before the court but the proceedings subsequent to the mandate. Whatever was formerly before the court, and was disposed of by its decree, is considered as finally disposed of. See Htmely v. Rose, 5 Cranch, 313; The American and Ocean Ins. Co. v. Canter, 1 Pet., 511; The Santa Maria, 10 Wheat., 431; Rice v. Wheatly, 9 Dana, 272. Moreover, as it is admitted that the court below have not yet acted upon the mandate of this court, and entered a final decree in pursuance thereof, there is no final decree, from which only an appeal can be taken. See The Palmyra, 10 Wheat., 502; Chace v. Vasquez, 11 id., 429.

There are, therefore, three conclusive reasons for dismissing the present appeal: 1. The appellants have already been heard in this court on a former appeal. 2. There is no such decree as that from which the appeal purports to be taken. 3. There is no final decree in the case from which an appeal can be taken. The appeal is, therefore, dismissed.

THE ALICIA.

(7 Wallace, 571-573. 1868.)

STATEMENT OF FACTS.- A decree of condemnation was entered in the district court for the southern district of Florida, against the Alicia and her cargo, on January 9, 1863, from which decree an appeal was taken to the circuit court. On May 18, 1867, an order was made in the latter court for the transfer of the cause to the supreme court. Motion to docket and dismiss because the record

was not filed.

§ 152. A motion to docket and dismiss will not be entertained where the court has no jurisdiction.

Opinion by CHASE, C. J.

As the appellant has not docketed the cause and filed the record within the time allowed by the rules in cases of appeals, the motion would be allowed as of course, if the appeal could be regarded as taken to this court from the decree of the district court. But the decree of condemnation in the court was rendered in January, 1863, and the appeal to the circuit court was allowed and bond given in the same month. By these proceedings, and the transmission of the record to the circuit court, the cause was duly removed to that court under the laws regulating appeals at that time. Subsequently, by the thirteenth section of the act of June 30, 1864, provision was made for appeals in prize cases directly from the district court to this court; and it was directed that appeals from the circuit courts, in cases remaining therein, should be allowed to this court in the same manner as appeals from the district court under the act. But it was also provided in the same section that prize causes, depending in the circuit courts, might be transferred, upon the application of all parties in interest, to this court; and it was under this provision that the application and order for transfer were made. Can this court acquire jurisdiction of the cause through this order of transfer?

§ 153. The supreme court has no jurisdiction of a prize case certified from the circuit court. (a)

It cannot be doubted that the cause was removed to the circuit court by the appeal from the decree of the district court in 1863. That decree was vacated by the appeal, and the circuit court acquired full jurisdiction of the cause.

(a) The above case affirmed in The Nonesuch,* 9 Wall., 504.

It