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6 How. 201-206

Notes on U. S. Reports.

632

Cited and relied upon in Grant v. Phoenix Ins. Co., 106 U. S. 432, 27 L. 238, 1 S. Ct. 416, holding a decree of foreclosure which neither finds the amount due nor orders the sale of the property, is not final; Louisiana Nat. Bank v. Whitney, 121 U. S. 285, 30 L. 961, 7 S. Ct. 897, an order directing the payment into court of a garnishee fund, pending the determination of the right to it, is not a final decree: Smith v. Vulcan Iron Works, 165 U. S. 524, 41 L. 812, 17 S. Ct. 410, and Reaves v. Oliver, 168 U. S. 704, 42 L. 1212, 18 S. Ct. 945, dismissing writ of error and appeal from interlocutory decree; Dufour v. Lang, 54 Fed. 916, 2 U. S. App. 477, a decree removing liquidators of a corporation, and appointing receivers having in addition powers and duties of liquidators, is not final; Florida Const. Co. v. Young, 59 Fed. 722, 11 U. S. App. 683, an order appointing a receiver is not appealable; Nacoochee Hydraulic M. Co. v. Davis, 40 Ga. 319, writ of error will not lie from order dissolving an injunction; Coates v. Cunningham, SO Ill. 468, a writ or error will not lie to reverse a decree appointing a receiver but settling no rights; Tolman v. Jones, 114 Ill. 153, 28 N. E. 465, an interlocutory order for the holding and preservation of property during litigation is not the subject of appeal; Chicago Steel Works v. Illinois Steel Co., 153 Ill. 14, 38 N. E. 1035, decree appointing receiver, under the facts of the case, held to be interlocutory; Greeley v. Mo. P. Ry. Co., 123 Mo. 163, 27 S. W. 615, under the laws of Missouri an appeal will not lie from an order appointing a receiver; Guardian Savings Bank v. Reilly, 8 Mo. App. 548, dismissing writ of error dated from a subsequental order; Steel v. Holliday, 18 Or. 153, an order requiring a receiver to join an administrator in the sale of certain property, is not appealable; United States v. Church, 5 Utah, 396, 16 Pac. 724, an order appointing a receiver is not a final decree. Cited, arguendo, in Bissell Carpet-Sweeper Co. v. Goshen Sweeper Co., 72 Fed. 551, 43 U. S. App. 47, holding an order, so modifying a decree as to pro tanto dissolve original injunction, is an appealable interlocutory order within the act of February, 1895; Kilpatrick v. Kansas City & B. R. R. Co., 38 Neb. 641, 41 Am. St. Rep. 757, 57 N. W. 671, an interlocutory order, in suit pending in a Federal court, not a bar to litigation of the same matter in State court; Baird v. Turnpike Co., 1 Lea, 397, an order appointing a receiver is not such an interlocutory order or decree as may be superseded under the code; Chase v. Driver, 92 Fed. 784, cited in general discussion of final and interlocutory decrees.

Modified in Smith v. Vulcan Iron Works, 165 U. S. 524, 41 L. 812, 17 S. Ct. 410, under section 7 of the act of 1891, an appeal may be taken from an interlocutory order or decree granting or continuing an injunction; Richmond v. Atwood, 52 Fed. 21, 5 U. S. App. 1, 17 L. R. A. 618, to the same effect.

Circuit Courts, in framing and carrying into execution their interlocutory orders, should keep in view the difference between the right of appeal, as practived in the English chancery jurisdiction, and as restricted by act of Congress, p. 205.

Cited, arguendo, in Bissell Carpet-Sweeper Co. v. Goshen Sweeper Co., 72 Fed. 547, 556, 43 Ų. S. App. 47, holding an order so modifying decree as to, pro tanto, dissolve the original injunction, is an appealable interlocutory order within the act of February, 1895.

Appeal and error.- Appeals to the House of Lords may be taken from an interlocutory order of the chancellor, which decides a right of property in dispute, p. 205.

Citeɖ, arguendo, in Smith v. Vulcan Iron Works, 165 U. S. 524, 41 L. 812, 17 S. Ct. 410, and Richmond v. Atwood, 52 Fed. 25, 5 U. S. App. 1, 17 L. R. A. 620.

Appeal and error.- In Federal courts, right of appeal is by law limited to final decrees, p. 205.

Followed in United States v. Girault, 11 How. 32, 13 L. 592, dismissing writ of error where joint action upon a bond where case was not finally disposed of with respect to all the parties.

Appeal and error.— The object and policy of the acts of Congress in relation to appeals, have been to save the expense and delays of repeated appeals in the same suit, p. 206.

Cited in McLish v. Roff, 141 U. S. 666, 35 L. 894, 12 S. Ct. 120, under section 5 of the act of March 3, 1891, the appeal or writ of error can be taken only after final judgment; Bissell Carpet Sweeper Co. v. Goshan Sweeper Co., 72 Fed. 553, 43 U. S. App. 47, arguendo.

Circuit Courts should properly announce their opinion in an interlocutory order, and withhold decree setting aside titles and conveyances, until the case is ready for final decree, p. 206.

Cited in Raliroad Co. v. Swasey, 23 Wall. 410, 411, 23 L. 137, holding an interlocutory order announcing the court's opinion as to the rights of the parties, not a final decree; Ex parte Elyton Land Co., 104 Ala. 92, 15 So. 940, criticising the contrary practice; Jones v. Wilson, 54 Ala. 55, arguendo.

6 How. 206-209, 12 L. 406, PERKINS v. FOURNIQUET.

Final decree.- Circuit Court decree is not final which directs that complainants were entitled to two-sevenths of certain property, referring the matter to a master to state an account, and reserving all other matters in controversy until the coming in of master's report, p. 208.

Cited and followed in Craighead v. Wilson, 18 How. 200, 15 L. 333, holding reference to a master to state accounts between the parties, not such a final decree as could be appealed from; Keystone Iron Co. v. Martin, 132 U. S. 93, 94, 33 L. 276, 10 S. Ct. 32, 33, a decree ordering a perpetual injunction and an account before a master, not final or appealable; McGourkey v. Toledo & O. Ry., 146 U. S. 547, 36 L. 1084, 13 S. Ct. 173, dismissal of intervenor's petition

6 How. 206–209

Notes on U. S. Reports.

634

not a final decree; Lockwood v. Wickes, 75 Fed. 119, 36 U. S. App. 321, a decree sustaining a patent, declaring infringement, awarding a perpetual injunction, and referring cause to master to report profits, is not final; Cohn & Weis v. Hamlet, 44 Ark. 345, an order sustaining demurrer to complaint in replevin, dismissing complaint and directing writ of inquiry to assess defendant's damages, is not final; Rochat v. Gee, 91 Cal. 358, 27 Pac. 671, dismissing appeal from order approving receiver's preliminary account; Bellamy v. Bellamy, 4 Fla. 251, dismissing appeal from order directing money to be paid into court, ousting trustee and appointing a receiver for property declared to be held in trust; Dorsey v. Thompson, 37 Md. 50, an order renewing and continuing a former order of sale, not a final decree; Brown v. Minn. Thresher Mfg. Co., 44 Minn. 325, 46 N. W. 561, dismissing appeal from an interlocutory order of administrative nature, made in course of insolvency proceedings; Bent v. Miranda, 8 N. Mex. 83, 84, 85, 42 Pac. 92, 93, decree establishing complainant's interest in certain land, but reserving adjudication as to its partition until a future term," not final, and may be vacated. Cited in Fourniquet v. Perkins, 16 How. 85, 14 L. 855, where the same case was again before the Supreme Court. Approved in West v. Smith, 8 How. 413, 12 L. 1135, arguendo. Approved in the following dissenting opinions: Chappell v. Funk, 57 Md. 481, majority entertaining an appeal from an order overruling demurrers, and directing defendant to answer; Quidnick Co. v. Chafee, 13 R. I. 401, majority holding decree authorizing sale of trust estate, though prescribing no time, place or manner of sale, was final and could not be altered by a single judge. Cited in valuable note on final and interlocutory judgments and decrees, 60 Am. Dec. 428, 429.

Distinguished in Grant v. E. & W. R. R. Co., 50 Fed. 797, 2 U. S. App. 182, holding complainants might appeal from decree dismissing an auxiliary bill; Cannon v. Hemphill, 7 Tex. 195, a decree dividing land in controversy, entered with consent of parties, was final; Chase v. Driver, 92 Fed. 784, decree ordering sale of specific property is final, although referring case to master to state account.

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Interlocutory orders and decrees remain under the control of the court making them, and subject to their revision, until the whole matter in controversy is disposed of by final decree, p. 209.

Cited in Magic Ruffle Co. v. Elm City Co., 14 Blatchf. 117, F. C. 8,950, holding, upon report of master, the court may direct a further investigation; Wooster v. Handy, 22 Blatchf. 310, 21 Fed. 53, the court has power to vacate interlocutory decrees; Thompson v. Mylne, 4 La. Ann. 211, a preparatory decree, prescribing the manner of proceeding necessary to arrive at a final decision, cannot have the force of res judicata; Forbes v. Tuckerman, 115 Mass. 120, the justice overruling a demurrer, may order defendant to answer, pending appeal from decree; arguendo, in Reed v. Lawrence, 29 Fed. 922, it is the court's duty to correct any error which it may conceive it

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has fallen into, at any time before final decree; Celluloid Mfg. Co. v. Cellonite Mfg. Co., 40 Fed. 477, to the same effect.

Appeal and error.— - Upon appeal from a final decree, every matter in dispute will be open to the parties in the Supreme Court, and may all be heard and decided at the same time, p. 209.

6 How. 209-212, 12 L. 408, PULLIAM v. CHRISTIAN.

Final decree.- Decree setting aside deed made before bankruptcy of maker, directing trustees, under deed, to deliver to assignee all property undisposed of, and directing an account, but not deciding trustees' liability therefor, is not final or appealable, pp. 211, 212.

Cited and followed in Craighead v. Wilson, 18 How. 201, 15 L. 333, holding reference to a master to state accounts between parties, not such a final decree as could be appealed from; Keystone Iron Co. v. Martin, 132 U. S. 93, 94, 33 L. 276, 10 S. Ct. 32, 33, a decree ordering a perpetual injunction and an account before a master, not final or appealable; McGourkey v. Toledo & O. Ry., 146 U. S. 547, 36 L. 1084, 13 S. Ct. 173, dismissal of intervenor's petition not a final decree; McLean v. Clark, 23 Fed. 862, overruling of demurrer not a final decree so as to entitle plaintiff to tax a docket fee; Gray v. Palmer, 9 Cal. 635, decree adjudging the existence of certain partnerships and directing an account to be taken, not final; Bellamy v. Bellamy, 4 Fla. 251, dismissing appeal from order directing money to be paid into court, ousting trustee, and appointing a receiver for property declared to be held in trust; Dorsey v. Thompson, 37 Md. 50, an order renewing and continuing a former order of sale is not a final decree; Forbes v. Tuckerman, 115 Mass. 120, the justice overruling a demurrer may order defendant to answer, pending appeal from decree. Approved in Chappell v. Funk, 57 Md. 481, in dissenting opinion, majority entertaining an appeal from an order overruling demurrers and directing defendant to answer. See note, 60 Am. Dec. 429.

Distinguished in Potter v. Beal, 50 Fed. 863, 5 U. S. App. 49, holding decree directing certain papers to be turned over to bank president and receiver, final and appealable; Cannon v. Hemphill, 7 Tex. 195, a decree dividing land in controversy, entered with consent of parties, was final.

Miscellaneous. Cited in Bent v. Miranda, 8 N. Mex. 84, 42 Pac. 92, arguendo.

6 How. 212-228, 12 L. 409, BANK OF METROPOLIS v. NEW ENGLAND BANK.

Banks and banking.— If negotiable paper, not due, delivered to a bank merely for collection, be sent by such bank to another bank for collection, without notice that it does not belong to former, latter may retain paper and its proceeds to satisfy a claim for a general

6 How. 212-228

Notes on U. S. Reports.

636

balance against the former, if that balance has been allowed to arise and remain on the faith of receiving payment from such collections, pursuant to a usage between the two banks, p. 227.

Cited and followed in Kelly v. Phelan, 5 Dill. 233, F. C. 7,673, establishing a banker's lien against an assignee in bankruptcy; Vickrey v. State Savings Assn., 21 Fed. 773, where facts were within the above rule; Wyman v. Colorado Nat. Bank, 5 Colo. 36, upon facts almost identical with those of principal case; Coors v. German Nat. Bank, 14 Colo. 206, 23 Pac. 329, where A. indorsed drafts in blank to B. for collection, and B. wrongfully sold them to C., the latter having no knowledge of B.'s want of ownership, is invested with a good title; Tourtelotte v. Brown, 1 Colo. App. 418, 29 Pac. 133, knowledge on the part of a holder of negotiable paper that would invalidate his title, must be affirmatively established; Wood v. Boylston Nat. Bank, 129 Mass. 360, 37 Am. Rep. 367, where an attorney, having a note for collection, deposited it in a bank for collection, without stating for whose account, and the bank credited the attorney with amount collected, owner of note could not recover from bank; Carroll v. Bank, 30 W. Va. 524, 528, 532, 8 Am. St. Rep. 105, 109, 112, 4 S. E. 443, 446, 448, where draft was sent by one bank to another for collection without notice of ownership in a third party, collecting bank had a right to credit amount to remitting bank's account. Cited in Sparhawk v. Drexel, 12 Bank. Reg. 450, 22 Fed. Cas. 863, in collection of authorities establishing a banker's general lien; Studebaker, etc., Mfg. Co. v. First Nat. Bank, 42 S. W. 574 (Tex. Civ. App.), under course of dealing shown to have existed, bank had right to retain and collect notes as against firm depositing them as collateral security.

Distinguished in Jones & Co. v. Milliken, 41 Pa. St. 255, where banker, acting only as agent to transmit, sent draft to banker in another city for collection, upon failure of correspondent, the collecting banker was liable to owner. Denied in McBride v. Farmers' Bank, 26 N. Y. 454, the above rule has not been adopted in New York; collecting bank obtains no better title than remitting bank, unless a purchaser for value, without notice.

Banks and banking. Upon above state of facts, if collecting bank had notice that transmitting bank acted merely as agent, it is not entitled to retain against the real owners, unless credit was given or balances suffered to remain in the hands of the transmitting bank to be met by the negotiable paper transmitted or expected to be transmitted in the usual course of dealings between the two banks, p. 227.

Cited and principle applied in Bury v. Woods, 17 Mo. App. 253, a case involving similar facts; Cecil Bank v. Farmers' Bank, 22 Md. 155, 156, holding indorsement "for collection," notice of indorser's ownership; Miller v. F. & M. Bank, 30 Md. 401, refusal of instruction embracing the above rule was error; Fisher v. Brown, 104 Mass,

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