2 Wall. 96-97, 17 L. 905, BROBST v. BROBST.

Appeal and error.— Appeal may be taken from that part of a case covered by a final decree and a certificate of division on the residue, p. 96.

Appeal and error.- Appeal to Supreme Court may be heard although appeal bond was not filed in conformity with act of Congress, p. 97.

Cited with approval in Seymour v. Freer, 5 Wall. 822, 18 L. 564, holding, where through mistake or accident no bond, or a defective bond, has been filed, the appeal will not be dismissed; Bigler v. Waller, 12 Wall. 149, 20 L. 262, where court allowed such defect in the appeal to be obviated by granting leave to file a new bond; McClelland v. Allison, 34 Kan. 158, 8 Pac. 241, where, on appeal from a Justice's Court, the bond was defective, held to be within power of District Court to order a change in the undertaking so that it would conform to the statute. Cited, arguendo, in Peugh v. Davis, 110 U. S. 228, 28 L. 128, 4 S. Ct. 18, without special application. Distinguished in Vaill v. Town Council, 18 R. S. 410, 28 Atl. 345, because of difference in rules of practice in State courts.

2 Wall 97-106, 17 L. 855, DAY v. GALLUP.

Supreme Court.- Judgment of State court against a United States marshal for a wrongful levy is not necessarily reviewable in Supreme Court as drawing in question an authority exercised under the United States," p. 106.

66

Cited, arguendo, in Lammon v. Feusier, 111 U. S. 19, 28 L. 337, 4 S. Ct. 286, where court holds sureties of United States marshal liable for taking by marshal, on writ of attachment against one person, the goods of another; O'Neil v. Vermont, 144 U. S. 335, 36 L. 457, 12 S. Ct. 698, and Porter v. Davidson, 62 Fed. 628, without special application; State v. Hope, 88 Mo. 435, officer who levies on wrong property is prima facie a trespasser.

This rule is in effect denied in Buck v. Colbath, 3 Wall. 342, 18 L. 260, where, in a similar case, it was held the judgment of the State court was reviewable in the Supreme Court.

2 Wall. 106-110, 17 L. 905, HUMISTON v. STAINTHORP.

Appeal and error.- A decree in a patent cause awarding a permanent injunction and accounting of profits, and referring case to a master to take and state amount, is not a final appealable decree, p. 110.

Cited and applied in Grant v. Phoenix Ins. Co., 106 U. S. 431, 27 L. 238, 1 S. Ct. 416, holding a decree is not final within meaning of act conferring appellate jurisdiction, unless upon its affirmance

nothing remains but to execute it; Keystone Co. v. Martin, 132 U. S. 93, 95, 33 L. 276, 277, 10 S. Ct. 32, 33, where decree granting perpetual injunction and ordering an accounting before a master was held not final; McGourkey v. Toledo, etc., Ry. Co., 146 U. S. 545, 36 L. 1083, 13 S. Ct. 172, holding decree ordering delivery of certain personal property to be sold is not final; Rumford Chemical Works v. Hecker, 20 Fed. Cas. 1345, Brush Co. v. Western Co., 76 Fed. 764. 46 U. S. App. 355, Lockwood v. Wickes, 75 Fed. 119, 36 U. S. App. 321, and Columbus Watch Co. v. Robbins, 52 Fed. 339, 6 U. S. App. 275, similar to principal case; Norton v. Hood, 12 Fed. 766, holding no appeal lies from District to Circuit Court on decree granting or refusing an interlocutory injunction; Harmon v. Struthers, 48 Fed. 261, holding such a decree does not prevent inquiry into validity of patent in case of a second suit; dissenting opinion, Standard Elevator Co. v. Crane Co., 76 Fed. 793, 46 U. S. App. 411, the majority distinguishing on statutory grounds; Huntington v. Moore, 1 N. Mex. 475, holding, in action for an accounting, an order commanding defendants to pay plaintiff a certain amount pendente lite is not a final decree. Cited, arguendo, in In re Potts, 166 U. S. 267, 41 L. 995, 17 S. Ct. 521, holding, Circuit Court after its decree has been reversed and cause has been remanded for further proceedings in accordance with opinion of Supreme Court, has no authority to grant a rehearing for newly-discovered evidence. Approved, arguendo, in Avery v. Wilson, 20 Fed. 859. Cited in Richmond v. Atwood, 52 Fed. 21, 5 U. S. App. 151, 17 L. R. A. 618, as authority for holding such a decree interlocutory. Cited, arguendo, in Cary v. Richardson, 35 La. Ann. 508. See note on final and interlocutory judgments and decrees, 60 Am. Dec. 429.

Distinguished in Smith v. Vulcan Iron Works, 165 U. S. 524, 41 L. 812, 17 S. Ct. 410, and Bissell Co. v. Goshen Co., 72 Fed. 551, 43 U. S. App. 47, on statutory grounds, as to appeals from United States Circuit Courts to United States Circuit Courts of Appeals; and to same effect, Standard Elevator Co. v. Crane Co., 76 Fed. 781, 46 U. S. App. 411.

2 Wall. 110-122, 17 L. 857, MURRAY v. LARDNER.

Sales. At common law no one can give a better title to personal property than he himself has, except by sale in market overt, p. 118. Cited, arguendo, in In re Sime, 3 Sawy. 308, F. C. 12,861, and dissenting opinion, Pugh v. Moore, 44 La. Ann. 229, 10 So. 717.

Bills and notes.- Burden of showing bad faith in transfer before maturity of negotiable instruments is on party who assails such transfer, p. 121.

This rule is cited with approval in Collins v. Gilbert, 94 U. S. 754, 24 L. 170, where accepted draft indorsed in blank had been wrongfully transferred before maturity; Montclair v. Ramsdell, 107 U. S.

158, 27 L. 435, 2 S. Ct. 399, holder of bonds is presumed to have acquired them in good faith; Kneeland v. Lawrence, 140 U. S. 212, 35 L. 493, 11 S. Ct. 788, where railroad bonds were transferred before maturity; Johnson v. Lewis, 2 McCrary, 482, 6 Fed. 30, Long Island Trust Co. v. Columbus, etc., Ry. Co., 65 Fed. 457, Wildsmith v. Tracy, 80 Ala. 262, Shirk v. Mitchell, 137 Ind. 195, 36 N. E. 853, and Coler v. Board, 6 N. Mex. 128, 27 Pac. 628, in all of which the rule was enforced. Cited in Fant v. Miller, 17 Gratt. 81, possession of a note by indorser is prima facie evidence that he holds bona fide for value; dissenting opinion, Smith v. Sac County, 11 Wall. 150, 155, 20 L. 105, 107, majority holding onus shifts upon showing of fraud. Cited, arguendo, in Chambers County v. Clews, 21 Wall. 323, 22 L. 520, without special application. Approved, arguendo, in Pana v. Bowler, 107 U. S. 542, 27 L. 429, 2 S. Ct. 715, National Bank v. Texas, 20 Wall. 90, 22 L. 299, German Bank v. Himstedt, 42 Ark. 65, and Water-Works Co. v. Loan & Trust Co., 11 Colo. App. 231, 53 Pac. 514, as authority for rule, possession is prima facie evidence of ownership; to same effect, Halsted v. Colvin, 51 N. J. Eq. 398, 26 Atl. 932, and Voorhees v. Fisher, 9 Utah, 308, 34 Pac. 66. See notes, 26 Am. Dec. 158, and 11 Am. St. Rep. 323, where cases are collected.

Bills and notes.- Suspicion of defect of title or knowledge of circumstances which would excite suspicion in mind of a prudent man, or gross negligence on part of taker at time of transfer, will not defeat title of purchaser of negotiable note before maturity, p. 121.

This rule has been reaffirmed and applied in Hotchkiss v. National Bank, 21 Wall. 359, 22 L. 649, Rouede v. Jersey City, 18 Fed. 721, Clark v. Evans, 66 Fed. 264, 27 U. S. App. 640, Foote v. Hancock, 15 Blatchf. 345, F. C. 4,911, Atlas Nat. Bank v. Holm, 71 Fed. 492, 34 U. S. App. 472, and Sherman v. Apperson, 4 Fed. 26. Cited and principle applied also in Doe v. Northwestern Coal Co., 78 Fed. 69, unless purchaser wilfully closes his eyes to facts which show a defect in paper, he is entitled to be regarded as a bona fide purchaser; Gilman v. New Orleans, etc., Ry. Co., 72 Ala. 582, 585, Witte v. Williams, 8 S. C. 302, 28 Am. Rep. 296, Spence v. Mobile, etc., Ry. Co., 79 Ala. 586, Morton v. New Orleans, etc., Ry. Co., 79 Ala. 617, Merchants' Bank v. McClelland, 9 Colo. 611, 13 Pac. 725, Tourtelotta v. Brown, 1 Colo. App. 418, 29 Pac. 133, and Comstock v. Hannah, 76 Ill. 535, there must be absolute proof of bad faith to deprive assignee of negotiable paper of title; Lehman v. Press, 106 Iowa, 393, 76 N. W. 819, to relieve from effect of rule it must be shown that purchaser took with knowledge or notice of infirmities; Fox v. Bank, 30 Kan. 446, 1 Pac. 793, and if paper is purchased before maturity purchaser will be safe in making payment after maturity and protest for non-payment; Farrell v. Lovett, 68 Me. 329, 28 Am. Rep. 62, and Redlon v. Churchill, 73 Me. 151, 40 Am. Rep. 348, where member of a firm made his individual note, indorsed it with firm's name,

and then sold and appropriated proceeds to his own use; Williams v. Huntington, 68 Md. 601, 604, 6 Am. St. Rep. 482, 485, 13 Atl. 339, 840, the fraud or bad faith in the purchase is a question to be determined from all the facts attending the transaction, without reference to assumed conduct of others if situated as purchaser was; Atlas Bank v. Savery, 127 Mass. 79, 34 Am. Rep. 346; New Orleans, etc., Ry. Co. v. Mississippi College, 47 Miss. 564, holding title of purchaser to lost bonds not affected by his negligence in procuring same; Hamilton v. Marks, 63 Mo. 175, nothing short of mala fides in purchaser can defeat his title; and Fifth Ward Bank v. National Bank, 48 N. J. L. 516, 7 Atl. 320, holding likewise; Welch v. Sage, 47 N. Y. 147, 7 Am. Rep. 425, unless evidence makes out a case upon which a jury would be authorized to find fraud or bad faith in purchaser, it is duty of court to direct a verdict; Chapman v. Rose, 56 N. Y. 140, 15 Am. Rep. 403, and dissenting opinion, Colson v. Arnot, 57 N. Y. 270, “the holder's title can only be impeached by evidence of bad faith." The majority in the latter case hold, if finder of negotiable paper forges signature of payee and impersonates him, a bona fide purchaser obtains no title as against true owner; Bond Debt Cases, 12 S. C. 273, Walker v. Kee, 14 S. C. 145, Buchanan v. Wren, 10 Tex. Civ. App. 572, 30 S. W. 1083, Hynes v. Winston, 40 S. W. 1025 (Tex Civ. App.). and Manufacturers' Bank v. Newell, 71 Wis. 315, 37 N. W. 422, all adopt and follow this rule; Michigan Bank v. Eldred, 9 Wall. 550, 19 L. 766, bona fide indorsee of partnership note illegally executed, may enforce it.

Cited, arguendo, in Commercial Bank v. First Nat. Bank, 30 Md. 26, 96 Am. Dec. 565, without special application. Approved, arguendo, in New York Iron Mine v. Bank, 44 Mich. 352, 6 N. W. 826, Davies v. Seeley, 71 Mich. 219, 38 N. W. 906, Brown v. Hoffelmeyer, 74 Mo. App. 392, and Johnson v. Way, 27 Ohio St. 380, but evidence sufficient to put a prudent man on inquiry is admissible as tending to show actual knowledge in transferee of the fraud of transferrer; dissenting opinion, Seybel v. Bank, 54 N. Y. 311, Bank v. Diefendorf, 123 N. Y. 202, 25 N. E. 405, 10 L. R. A. 682, and dissenting opinion. Cheever v. Pittsburg, etc., Ry. Co., 150 N. Y. 74, 44 N. E. 705, 34 L. R. A. 74, holding gross negligence is evidence of bad faith. note, 84 Am. Dec. 402, 5 Am. Rep. 267.

See

Modified in Sturges v. Metropolitan Nat. Bank, 49 Ill. 226, 227, holding if receiver of note, about which there are suspicious circumstances, fails to make inquiries, he stands affected with equities existing between original parties. Distinguished in Allen v. Cary, 33 La. Ann. 1460, where partner had acted clearly beyond his authority; Myers v. Bealer, 30 Neb. 285, 46 N. W. 481, where it ap peared purchaser had knowledge that maker denied validity of note. Modified in Bowman v. Metzger, 27 Or. 28, 29, 30, 39 Pac. 4. 5. knowledge by purchaser of notes of suspicious circumstances connected with other notes in hands of vendor may be considered by

Distin

jury on the issue of good faith in making the purchase. guished in Ormsbee v. Howe, 54 Vt. 187, 41 Am. Rep. 842, where purchaser knew that payee of note had acquired similar ones by dishonest means; Smith v. Lawson, 18 W. Va. 235, 236, where purchaser knew, in law, party transferring had no authority to do so.

Bonds.- Negotiable instruments, such as coupon railroad bonds, pass by delivery, and a purchaser in good faith, before maturity, is unaffected by want of title in the vendor, p. 122.

Cited and rule applied in Cromwell v. County of Sac, 96 U. S. 58, 24 L. 686, holding purchaser of municipal bonds from bona fide holder, although he may have notice of infirmities in its origin, takes it as it was in hands of such holder, free from infirmities; Orleans v. Platt, 99 U. S. 682, 25 L. 406, Gibson v. Lenhart, 101 Pa. St. 527, and Pompton v. Cooper Union, 101 U. S. 204, 25 L. 805, where railroad bonds in question were said to have all the properties of commercial paper, and Boyd v. Kennedy, 38 N. J. L. 148, 20 Am. Rep. 377, holding likewise as to county bonds; Railway Co. v. Sprague, 103 U. S. 760, 763, 26 L. 556, 557, Fairex v. Bier, 37 La. Ann. 825, and Ronede v. Jersey City, 20 Fed. Cas. 1152, overdue and unpaid interest coupons do not of themselves make bond to which they are attached dishonored paper; Memphis v. Brown, 1 Flipp. 217, F. C. 9,415, and Durant v. Iowa County, Woolw. 72, F. C. 4,189, in holding municipal bonds negotiable instruments; Stanton v. Alabama, etc., Ry. Co., 2 Woods, 527, F. C. 13,297, Arents v. Commonwealth, 18 Gratt. 766, and Chesapeake & Ohio Canal Co. v. Blair, 45 Md. 110, all holding railroad bonds commercial paper; Myers v. Hazzard, 4 McCrary, 107, 50 Fed. 163, to bona fide purchaser of negotiable paper secured by mortgage; Ex parte Estabrook, 2 Low. 549, F. C. 4,534, holding bona fide purchaser is not bound to inquire into character of a note which, on its face, is valid; Phelps v. Lewiston, 15 Blatchf. 158, F. C. 11,076, holding purchaser of municipal bonds issued in aid of construction of a railroad is not bound to search records for notice of pendency of litigation respecting; United States v. Vermilye, 10 Blatchf. 288, F. C. 16,618, holding the writing on the back of bonds made payable to bearer does not destroy their negotiability; In re Leland, € Ben. 178, F. C. 8,229, holding bond issued by an individual, under seal, payable to bearer, and secured by mortgage, is a negotiable instrument and not a specialty, so in hands of assignee not subject to equities existing against assignor; Richmond Ry. Co. v. Dick, 52 Fed. 381, 8 U. S. App. 99, holding fact that president of manufacturing corporation is member of banking firm which purchased notes from manufacturing corporation, does not affect banking firm with notice of consideration for notes; United States Nat. Bank v. First Nat. Bank, 64 Fed. 990, 27 U. S. App. 605, fact that notes, offered for discount to a bank, its correspondent, are payable to president