order as to keep alive its jurisdiction pending the appeal." In Coleman vs. Hudson River Bridge Company, the Judges of the Circuit Court not agreeing, certified a division of opinion to the Supreme Court. The Justices of the Supreme Court were also equally divided in opinion on the questions certified. The consequence was a dismissal of the certificate of division by the Supreme Court. In the opinion dismissing the certificate the Court suggest that the bill must be dismissed, and that the complainant could then appeal from the decree dis- · missing the bill. The defendant filed the mandate and moved to dismiss the bill; whereupon, the complainant's counsel asked the Court to so modify the decree of dismissal, as to retain the provisional injunction until the decision of the Supreme Court on appeal from the decree of dismissal. It was argued that the injunction did not necessarily fall with a dismissal of the bill; or, if it did, prima facie, that it was in the power of the Court to continue the injunction till the decision of the appeal. Mr. Justice Nelson, in delivering the opinion of the Court, says: "The Court cannot agree with either of these positions. The legal result of the division of opinion of the Judges is a dismissal of the bill without any qualification. Indeed, the condition of the Court renders any qualification or modification of the dismissal impracticable. The case is out of Court, so far as it respects any proceedings, except an appeal to review the decree. The Judges are disabled, from a contrariety of opinion, to annex any condition, and it certainly requires no argument to show that in case of an unqualified dismissal of a bill, all incidents fall with it. We agree that the Chancellor may, in his discretion, direct a modified dismissal, and thereby annex to it such conditions as may seem to him just and equitable. Having the possession and entire control of the cause, this qualified exercise of power is practicable. But such a case is very different from this one, where the dismissal is the result of law, and absolute; and where from the condition of the Court no modification can be annexed. It was insisted that an appeal, when taken within the time and in the mode prescribed by the Acts of Congress of September, 24, 1789 (1 U. S. Stat. at Large, 85, § 23), and March 3, 1803 (2 Id., 244, § 2), will operate under and by virtue of these Acts to continue the injunction. But it is quite clear that these provisions deal only with the writ of execution founded upon the decree rendered, and which is awarded by it, and have no application to the provisional writ of injunction, or other incidental proceedings in the progress of the cause." (5 Blatch. 58). This case is clearly an authority directly upon the point, that when a bill is dismissed without qualification, it is out of Court; that all incidents go with it, and the jurisdiction is gone. The very object of the motion was to obtain a modification of the dismissal so as to avoid this result. Mr. Justice Nelson also observes that the point was a subject of considertion in the Supreme Court, and that no doubt was entertained of it by any of the Judges. It may, therefore, be regarded as the decision of the Supreme Court, and as settling the question. The conclusion is so obvious that the counsel in the last case, in their motion, proceeded upon the theory, that unless they could procure a modified decree to preserve the jurisdiction, the jurisdiction would be gone. The two cases cited are the only ones brought to our notice, or that we have been able to find, directly deciding the point. Occasions for continuing injunctions pending an appeal must have been frequent and pressing; and the fact that no instance can be found in practice of their continuance where the bill has been dismissed absolutely, is the best evidence that Court and bar have regarded the jurisdiction as gone. Counsel for the Richmond Company relied upon two cases, Goddard vs. Ordway, 4 Otto, 672, and Hart vs. The Mayor of Albany, 3 Paige, 381, neither of which touches the point in this case. In the former case, there was a receiver; and at the time the supersedeas was perfected, the receiver had $25,000 of the funds in his hands, which required an order of the Court to enable him to pay it over to the defendant in pursuance of the decree; which order the Court was asked to make. The Supreme Court say: "Such an order would be in aid of the execution of the decree, which has been stayed, and consequently beyond the power of the Court to make until the appeal is disposed of. While the Court below may make the necessary orders to preserve the fund, and direct its receiver to that extent, it cannot place the money beyond the control of any decree that may be made here, for that would defeat its jurisdicdiction." There the fund was in Court, in its custody and control. But in this case, there is nothing to stay except the collection of costs. The Court has no custody of the subjectmatter. There is no fund in Court or under its control. In the case cited from Paige, the master out of Court, upon an ex parte application, had granted a preliminary injunction restraining the defendant from destroying and removing his building. Upon the coming in of the answer, the defendant moved, on bill and answer, to dissolve the preliminary injunction, which motion was granted. An appeal was taken from the order dissolving the injunction. There was no dismissal of the bill; no final decree in the case. The appeal was from the interlocutory order. The case still remained in the Court, and the Chancellor had full authority to make any other order that the exigencies of the case demanded. In this condition of things, upon application, and upon terms, he made a new order restraining for a brief time the destruction of the property in controversy. He did not continue the former injunction, but, as he says in terms, exercised a new and original jurisdiction in making the new order. That is not this case. Here the bill is dismissed absolutely, and the case is wholly out of Court. There is no suit pending in which any order can be made. It follows that the motion in the suit in equity must be denied. In the action at law, this Court never had jurisdiction to issue an injunction. And it was for this reason that the bill in equity was filed. The Court never had the custody of the subject matter. The supersedeas undoubtedly stays the issue of a writ of restitution and execution for costs. But none has been issued or asked for. The Eureka Company are doing nothing whatever by authority, or under, or in pursuance of the judgment, or any process issued thereon. It is doing nothing more than it was doing before these actions were commenced, except that it has extended its drifts further into the mine, so as to work the body of ore which it was seeking by these same means to obtain, prior to the institution of any of these suits. It is simply doing what it was restrained from doing by the injunction issued on the cross-bill while it was in force. It is proceeding under the same claim and authority now, as it was before-nothing more, nothing less. The Court has made no order in this case other than to enter judgment for the possession and costs in favor of the Eureka Company, and it can make none. Undoubtedly, if the Court had inadvertently, or otherwise, issued an execution after the perfection of the supersedeas, and the plaintiff had been thus wrongfully put in possession, or was about to be so put in possession under the writ, it could by virtue of its control over its process have stayed the execution of the writ, or have restored the possession improperly given had the writ been executed. But nothing of the kind has occurred. Nothing in the custody or control of the Court in this action is in any manner affected by the acts of the Eureka Company, and the Court is without power to interfere. If there is any power to issue the restraining order asked, it lies with the Appellate Court. Whether that tribunal can make the order must be deter mined by itself. Under its rules, however, upon a proper showing it can afford a speedy remedy by advancing the cause and bringing it to an early hearing. If deemed a proper case this would perhaps be the better remedy. While on the one hand, the working of the mine might consume the subject matter of litigation, and leave little for the Richmond Company in case of ultimate success; on the other, to restrain the working of the mine adjudged to belong to the Eureka Company for the period of three years-the time suggested as likely to be required for the disposition of the case-would be scarcely less calamitous should the decision be affirmed. To those familiar with the subject, it requires no argument to show that it would be extremely disastrous to allow an open mine with all its vast extent of shafts, drifts, winzes, etc., to fill with water, fall in, and become destroyed, and its machinery, hoisting works, mills and mine itself, to be disused for so long a period. Section 1182 of the Statutes of Nevada, also relied on by the Richmond Company, relates to proceedings in a case pending over which the Court still has control. But this case is ended and gone beyond the reach of this Court. The statutory provision, therefore, has no application. It follows, that the motion must be denied, and the order issued restraining the Eureka Company from working pending the motion vacated and dissolved, and it is so ordered. March 22, 1878. J.J. Williams and Crittenden Thornton for motion. Recent U. S. Land Decisions. RECENT CALIFORNIA CASES. WASHINGTON, April 6, 1878.-In the matter of the application of Larce & Johnson, attorneys for the heirs of David Foster, for a modification of the Secretary's decision of August 7, 1877, relative to lands near Los Angeles, upon the ground that the selection of State lands was not carried out in accordance with the provisions of the State law, and that the application of the State purchaser was informal, the Secretary rules that the Government can take no cognizance of the transactions of the State with a purchaser. The Government can only concern itself with the answer to these questions : First-The right of the State to claim the land. Secund--Was the land open to selection? The Secretary, on appeal, has affirmed the decision of the Commissioner in the case of Ethan Allen and J. L. Plummer vs. the Southern Pacific Railroad Company, rejecting the claims of Allen & Co. and recognizing Plummer's applicacation to file declaratory statement for the land in question near Los Angeles. The Secretary, on appeal, has affirmed the decision of the Commissioner in the case of H. A. Bowrie vs. the heirs of Simon D. Webb, refusing to cancel Webb's homestead entry on certain lands near Marysville. The decision is based on the fact that at the time of the original hearing the Department did not require residence by the heirs as well as cultivation. MUNICIPAL COURT OF APPEALS.-The Governor has appointed as Judge of this new Court, the creation of which by the last Legislature, fills an important want in the judicature of this city, Hon. T. W. Freelon, a learned lawyer, and one fully competent to fill this position. This gentleman brings into the office the experience of many years' connection with the Bench and Bar, having filled the important position of County Judge in the early history of this city,—and having ' also been connected for a long series of years with ex-District Attorney H. H. Byrne, in the discharge of the arduous duties of that office. SUNDAY LAW IN MASSACHUSETTS.-In the case of the Commonwealth vs. Has, in the recently published Supreme Court Reports of Massachusetts, it was decided that, although one who couscientiovsly believes that the seventh day of the week ought to be observed as the Sabbath, and actually refrains from secular business on that day, may safely perform any other secular business, travel or labor on the Lord's day, this privilege does not extend to keeping his shop open. - JUDGE OF THE SECOND JUDICIAL DISTRICT. Hon P. O. Hundley has been appointed by the Governor, Judge of the Second Judicial District, to fill the vacancy occasioned by the death of Judge Sexton. Having occupied this position before to the satisfaction of the profession and people of the District, this appointment is eminently fit to be made. |