7 How. 646-658

Notes on U. S. Reports.

7 How. 646-650, 12 L. 855, SADLER v. HOOVER.


Certificate of division merely showing that the court was not able to agree in opinion, without stating question at issue, is not sufficient, and such an appeal must be dismissed, p. 649.

Cited and followed in United States v. Waddell, 112 U. S. 81, 82, 28 L. 674, 5 S. Ct. 37, remanding case where division on demurrer was certified without grounds or argument; Waterville v. Van Slyke, 116 U. S. 702, 29 L. 773, 6 S. Ct. 623, holding each question certified must present a clear and distinct proposition of law; Jewell v. Knight, 123 U. S. 433, 31 L. 193, 8 S. Ct. 194, holding question of whether sale was fraudulent, involving question of fact, cannot be referred; Columbus Watch Co. v. Robbins, 148 U. S. 269, 37 L. 446, 13 S. Ct. 595, holding statement that different Circuit Courts of Appeal have rendered conflicting decisions not a request for instruction; Bagg v. Detroit, 5 Mich. 70, holding under Michigan statute the reference must be on purely legal questions only; Shoe Co. v. Insurance Co., 87 Tex. 114, 26 S. W. 1064, holding the very question to be decided, and none other, to be referred.

7 How. 650-658, 12 L. 857, BARNARD v. GIBSON.

Appeal to the Supreme Court may be prosecuted only from a final decree, and this rule was not changed by the decision in Forgay v. Conrad, 6 How. 201, 12 L. 404, pp. 656, 657.

Cited and followed in Columbus Watch Co. v. Robbins, 52 Fed. 339, 6 U. S. App. 275, holding appeal from interlocutory injunction order does not take up whole case; Marden v. Campbell, etc., Co., 67 Fed. 813, 33 U. S. App. 123, holding appeal from interlocutory order does not affect right of appeal from final decree; Lockwood v. Wickes, 75 Fed. 119, 36 U. S. App. 321, holding decree after hearing and ordering perpetual injunction and making reference to master not final order. Cited with approval in Potter v. Beal, 50 Fed. 863, 5 U. S. App. 49, holding the question of finalty is not determined by the name given, but by the essence of order.

Distinguished in Smith v. Vulcan Iron Works, 165 U. S. 524, 41 L. 812, 17 S. Ct. 410, and Standard, etc., Co. v. Crane, etc., Co., 76 Fed. 780, 46 U. S. App. 411, both holding that right of appeal from interlocutory injunction orders was first given by the act of 1891, establishing Circuit Courts of Appeal; Richmond v. Atwood, 52 Fed. 21, 5 U. S. App. 151, 17 L. R. A. 618, construing act of 1891, to give appeal from injunction order at any stage of the proceedings; Bissell, etc., Co. v. Goshen, etc., Co., 72 Fed. 548, 551, 43 U. S. App. 47, holding order modifying interlocutory injunction order appealable.

Final judgments.— A decree in patent suit granting perpetual inJunction, and referring to a master in chancery the question of damages and accounting, and particularly withholding an order for costs, is not final, pp. 657, 658.

Cited and principle followed in Humiston v. Stainthorp, 2 Wall. 110, 17 L. 906, holding such a decree not final; Grant v. Phoenix Ins. Co., 106 U. S. 431, 27 L. 238, 1 S. Ct. 416, holding a decree is not final for appellate jurisdiction unless upon affirmance nothing remains but its execution; Keystone Iron Co. v. Martin, 132 U. S. 93, 95, 33 L. 276, 10 S. Ct. 32, 33, collecting cases, and holding in action for trespass a decree ordering perpetual injunction with reference to a master for accounting and damages not final; McGourkey v. Toledo, etc., R. R., 146 U. S. 545, 36 L. 1083, 13 S. Ct. 172, holding decree ordering receiver to deliver certain property to intervenor not final; Potter v. Mack, 19 Fed. Cas. 1166, and Reeves v. Keystone Bldg. Co., 20 Fed. Cas. 472, both holding no appeal lies where reference is made to a master for accounting until the coming of his report; Rumford, etc., Works v. Hecker, 20 Fed. Cas. 1345, Harmon v. Struthers, 48 Fed. 261, and Brush, etc., Co. v. Western Elec. Co., 76 Fed. 764, 46 U. S. App. 355, all holding such decree not being final does not make the question of novelty res judicata; Randle v. Boyd, 73 Ala. 286, holding decree sustaining demurrer on certain parties in foreclosure suit not final; Bellamy v. Bellamy, 4 Fla. 253, holding an order requiring anything to be done which may be the subject of exception is not final; Lamp, etc., Co. v. Oil, etc., Co., 41 Ohio St. 292, holding default decree not decision sustaining the letters-patent. See valuable note on the distinctive features of final and interlocutory decrees, 60 Am. Dec. 429.

Denied in Standard, etc., Co. v. Crane, etc., Co., 76 Fed. 780, 793, 46 U. S. App. 411, holding, under act of 1891, such a decree is appealable as a final, and not as an interlocutory, decree.

Injunction. Unless the defendant is unable to respond in damages an injunction should be suspended pending report of master to whom is referred question of accounting and damages or infringement of patent, where such injunction will work irremediable hardship upon defendant before he can appeal, p. 658.

Cited and followed in Hoe v. Boston, etc., Corporation, 14 Fed. 916, denying preliminary injunction of no advantage to plaintiffs, except to coerce settlement of royalty. Approved in Nacoochee, etc., Co. v. Davis, 40 Ga. 319, holding bill of exceptions on order dissolving injunction does not act as supersedeas.

Distinguished in Brown v. Deere, 2 McCrary, 428, 6 Fed. 490, holding suspension of interlocutory injunction until accounting is had is discretionary; Consolidated, etc., Co. v. Coombs, 39 Fed. 804, holding where defendant used but one machine and patented device might be readily removed injunction would not be stayed; Campbell, etc., Co. v. Manhattan Ry., 49 Fed. 933, stating facts under which injunction for patent infringement cannot be avoided; Ladd v. Oxnard, 75 Fed. 733, holding under certain facts preliminary injunc tion for copyright infringement grantable only on condition.

7 How. 658-681

Notes on U. S. Reports.


7 How. 658-660, 12 L. 860, UNITED STATES v. BOISDORE'S HEIRS.

Rules of court. Forty-third rule of the Supreme Court, requiring filing of transcript within first six days of the term, does not operate where a decree is entered less than thirty days before the term, p. 659.

No citations.

7 How. 660-681, 12 L. 861, MISSOURI v. IOWA.

In boundary suits between two States, parties should plead by bill and cross-bill offering an opportunity to the court of making an affirmative decree for one side or the other, giving the court jurisdiction of the whole case, and establishing by its authority a disputed line which it will have permanently marked by commissioners of its own appointment, p. 667.

Cited and followed in Cockrell v. Warner, 14 Ark. 357, and Radcliffe v. Scruggs, 46 Ark. 102, both holding where defendant filed cross-bill on equitable grounds it supplied defects in jurisdiction on original bill; Bethel v. Albany, 65 Me. 203, holding decision of commissioners to mark common lines between towns conclusive.

Estoppel.- Where the Federal government by acts of Congress, treaties and decisions of courts, recognized a certain State boundary line, its successor is bound by that recognition, pp. 667, 672, 673, 674.

Missouri.— The western and northern boundary lines of the State of Missouri, as described in the first article of the Constitution of that State, adopted in 1820, do not control lines marked on the ground by Federal authority under Indian treaties prior thereto, pp. 669, 670, 671, 672.

Cited and relied upon in Knowles v. Toothaker, 58 Me. 174, holding where line noted in deed is established on ground, and recognized as so established, it is conclusive; Kellogg v. Smith, 7 Cush. 382, holding where Indian line was described as due west, while line on ground varied therefrom, the marked line controlled; Hall v. Davis, 36 N. H. 571, holding boundaries marked on the land govern courses and distances; Freeholders of Union v. Freeholders of Essex, 43 N. J. L. 399, holding until reliable mark can be found to indicate statutory line, that recognized in the vicinity controls.

Missouri.— The northern boundary by Indian line had its termination at Des Moines rapids, a well-known landmark in the Mississippi river. By the Constitution of Missouri this was changed to Rapids of the river Des Moines." There being no noticeable rapids in that river, it was held that the line as originally marked controlled, pp. 674, 675, 676.

Supreme Court has jurisdiction of controversies between the States concerning their boundaries, p. 677.

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Cited and followed in Virginia v. West Virginia, 11 Wall. 54, 20 L. 71, holding Supreme Court has original jurisdiction under Constitution of such controversies; United States v. Texas, 143 U. S. 640, 648, 36 L. 291, 294, 12 S. Ct. 491, 494, affirming such jurisdiction in suit to determine boundary between a State and territory. Distinguished in Wisconsin v. Pelican Ins. Co., 127 U. S. 288, 32 L. 242, 8 S. Ct. 1373, refusing jurisdiction of action by State upon judgment against citizen of another State for a penalty.

Iowa. The southern boundary line of Iowa is coincident with and dependent upon the northern boundary line of Missouri, p. 679. Missouri. The original western boundary line of Missouri was upon an Indian line running north and south through a point at the junction of the Missouri and Kansas rivers, but by act of Congress of June 7, 1836, which took effect in March, 1837, the territory lying west of that line and between it and the Missouri river was added to the State, p. 679.

Cited in St. Joseph, etc., R. R. Co. v. Deveraux, 41 Fed. 18, and Cooley v. Golden, 52 Mo. App. 233, holding that the west boundary of Missouri was fixed, not at the east bank of the Missouri river, but at its middle.

7 How. 681-693, 12 L. 870, JONES v. UNITED STATES.

Postmasters.- Act of Congress of 1825, which exonerates the sureties of postmasters, if balances are not sued for within two years after default, will not be construed to require that quarterly balances should at all events, and in opposition to the will of the parties, justly inferred from their conduct, remain open and unsatisfied, to become the subjects of future contest, pp. 687, 688.

Followed and applied in United States v. Kershner, 1 Bond, 436, 437, F. C. 15,527, holding that payments might be applied to distinguish previous quarter's balance.

Distinguished in United States v. Marks' Sureties, 3 Wall. Jr. 359, F. C. 15,722, holding sureties discharged unless suit is commenced within two years of first default.

Application of payments.- General rule is that the party paying may direct to what the application is to be made. If he waives his right, the party receiving may direct the object of appropriation. If both are silent, the law must decide to what a payment on account applies, p. 688.

Cited and followed in Schuelenburg v. Martin, 1 McCrary, 351, 2 Fed. 750, holding where no application is made chancellor may apply payment to unsecured portion of account; United States v. Kershner, 1 Bond, 436, 437, F. C. 15,527, holding postmaster-general may apply payments from postmasters upon prior quarters' balances; Bobe's Heirs v. Stickney, 36 Ala. 495, Dunnington v. Kirk,

7 How. 693–706

Notes on U. S. Reports.


57 Ark. 598, 22 S. W. 431, Allen v. Brown, 39 Iowa, 332, Neidig v. Whiteford, 29 Md. 187, State v. Hill, 47 Neb. 517, 66 N. W. 553, Raymond v. Newman, 122 N. C. 54, 29 S. E. 354, and State v. Chadwick, 10 Or. 432, all holding that on a general payment, where no application is made by either party, the law will apply it to the earliest item of indebtedness. Cited with approval in Haynes v. Waite, 14 Cal. 449, holding if debtor fails to make application, creditor may do so at any time before suit.

Distinguished in State v. Middleton Sureties, 57 Tex. 190, holding taxes collected and paid the treasury department cannot lawfully be applied to foreign account.

Official bonds executed at different times with distinct sets of sureties are to be credited and charged with payments and balances respectively accruing during their lives, and neither misfeasance nor non-feasance of the principal, nor any cause of responsibility occurring within the period for which one set of sureties have undertaken, can be transferred to the period for which alone another set have made themselves answerable, pp. 688, 689, 690, 691.

Cited and followed in United States v. Morgan, 28 Fed. 51, affirmed in 35 Fed. 490, both holding that by no act of the officer or treasury department can official moneys, collected during one term, be applied to accounts of another term to detriment of sureties; Pickering v. Day, 2 Del. Ch. 367, affirmed in 3 Houst. 538, 541, 95 Am. Dec. 310, 312, holding where there were several bonds each would be credited for moneys respectively collected, due and paid under them; State v. Middleton Sureties, 57 Tex. 190, holding taxes collected and paid to treasury department cannot lawfully be applied to former accounts. Cited with approval in Patterson v. Bank, 26 Or. 521, 38 Pac. 820, holding accommodation maker after termination of liability cannot claim diminution out of proceeds of future advances; Anderson Co. v. Hays, 99 Tenn. 550, 42 S. W. 268, holding audit should show liability for each term, but sureties must prove misapplication.

Distinguished in United States v. Honsman, 70 Fed. 583, 44 U. S. App. 171, holding application to old deficit correct on failure to show misapplication; United States v. Bicket, 24 Fed. Cas. 1143, holding payment of taxes without appropriation was rightfully applied to back taxes.

Miscellaneous.— Cited generally in United States v. Harrill, McAll. 246, 249, F. C. 15,310, holding transcripts from departments at Washington evidence of indebtedness of public debtors; United States v. Ballard, 3 McLean, 470, F. C. 14,507, holding an act providing statutes of limitations for crimes applies as well to offenses created after as before the act.

7 How. 693-706, 12 L. 875, HARRIS v. WALL

Depositions.— Authority to take depositions de bene esse is in derogation of the common law, and to be strictly construed; all the

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