WAITE, C. J. This is an appeal from the following decree in a suit for the forclosure of certain deeds of trust in the nature of mortgages to secure the payment of money:

"The cause came on to be heard upon the pleadings and proofs therein, and having been submitted by the counsel of the respective parties and duly considered by the court, and it appearing to the court that said defendant, Albert Grant, is not entitled to any relief under his cross-bill in this cause; that the plaintiff is the holder and owner of the several obligations of said Grant, secured by the deeds of trust on the real estate prayed in the original bill of complaint herein to be sold for the payment of the indebtedness thereon, and mentioned and set forth in the third, fourth, fifth, sixth, seventh, and eighth paragraphs of said bill; that said Grant has made default in the payment of his said obligations, on which he is indebted to the plaintiff in large sums of money, with long arrearages of interest; that said Grant has not paid taxes on said real estate for a number of years, and the same are in arrears for upwards of $20,000; that said indebtedness of said defendant, Grant, to the plaintiff largely exceeds the value of said real estate, and that the plaintiff has no personal security for its said debt; it is this second day of March, A. D. 1882, ordered, adjudged, and decreed that this cause be, and the same hereby is, referred to the auditor of the court to state the account between the plaintiff and the defendant, Albert Grant; the amount due under said several deeds of trust on said real estate prayed to be sold in said bill; the amounts due said judgment and mechanic's lien creditors referred to in said bill; whether the same are liens upon any of said real estate; the relative priorities of the claims of said creditors and the plaintiff, and the value of the said real estate,-all from the proofs in this cause, except as to said mechanic's lien,—and report the same to this court. And said auditor shall further ascertain and report to this court the amount due for taxes in arrears on said real estate, and whether the same or any part thereof has been sold for taxes, and if so, when, for what taxes, for what amount, and to whom."

To this was added an order appointing a receiver to take possession of the property, make leases, etc.

A motion is now made to dismiss because the decree appealed from is not a final decree.

The rule is well settled that a decree to be final, within the meaning of that term as used in the acts of congress giving this court jurisdiction on appeal, must terminate the litigation of the parties on the merits of the case, so that if there should be an affirmance here," the court below would have nothing to do but to execute the decree it had already rendered. This subject was considered at the present term in Bostwick v. Brinkerhoff, where a large number of cases are cited. It has also been many times decided that a decree of sale in a foreclosure suit, which settles all the rights of the parties and leaves nothing to be done but to make the sale and pay out the proceeds, is

a final decree for the purposes of an appeal. Ray v. Law, 3 Cranch, 179; Whiting v. Bank, 13 Pet. 15; Bronson v. Railroad Co. 2 Black, 531; Green v. Fisk, 103 U. S. 520. But in Railroad v. Swasey, 23 Wall. 409, it was held that "to justify such a sale, without consent, the amount due upon the debt must be determined. *

Until this is done the rights of the parties are not all settled. Final process for the collection of money cannot issue until the amount to be paid or collected by the process, if not paid, has been adjudged." In this the court but followed the principle acted on in Barnard v. Gibson, 7 How. 656; Humiston v. Stainthorp, 2 Wall. 106; Crawford v. Points, 13 How. 11, and many other cases.

The present decree is not final according to this rule. It does not order a sale of the property. It overrules the defense of the appellant as set forth in his cross-bill, and declares that the appellee is the holder and owner of the debt secured by the deeds of trust, but refers the case to an auditor to ascertain the amount due upon the debt, the amount due certain judgment and lien creditors, the existence and priorities of liens, and the claims for taxes. It is true that the court finds the amount due the appellee largely exceeds the value of the property, but this is only as a foundation for the order appointing the receiver. If in point of fact it is not true, the finding will not conclude the parties in the final closing up of the suit. The order for the delivery of the property is only in aid of the foreclosure proceedings, and to subject the income, pending the suit, to the payment of any sum that may in the end be found to be due. If anything remains, either of the income or of the proceeds of the sale after the mortgage or trust debts are satisfied, it will go to the appellant, notwithstanding what has been decreed. There is no order as in Forgay v. Conrad, 6 How. 201; Thomson v. Dean, 7 Wall. 346, and other cases of a like character, adjudging the property to belong absolutely to the appellee, and ordering immediate delivery of possession. In Forgay v. Conrad, supra, which is a leading case on this question, it was expressly said by Chief Justice TANEY (page 204) that the rule did not extend to cases where property was directed to be delivered to a receiver. The reason is that the possession of the receiver is that of the court, and he holds, pending the suit, for the benefit of whomsoever it shall in the end be found to concern. Neither the title nor the rights of the parties are changed by his possession. He acts as the representative of the court in keeping the property so that it may be subjected to any decree that shall finally be rendered against it. It follows that the appeal must be dismissed; and it is so ordered.

(106 U. S. 428)

INDEPENDENT SCHOOL-DIST. ACKLEY, HARDIN COUNTY, Iowa, v. HALL.

(December 18, 1882.)

JURISDICTION-DISMISSAL-AFFIRMANCE.

A failure to annex to or return with a writ of error an assignment of errors, as required by section 997 of the Revised Statutes, is no ground for dismissal for want of jurisdiction.

Motion to Dismiss, with which is united a motion to affirm.
Galusha Parsons, for plaintiff in error.

A. T. Britton and Walter H. Smith, for defendant in error. *WAITE, C. J. These motions are denied. A failure to annex to or return with a writ of error an assignment of errors, as required by section 997 of the Revised Statutes, is no ground for dismissal for want of jurisdiction. If an assignment is filed in accordance with the requirements of paragraph 4, rule 21, it will ordinarily be enough.

There is not in this case such a color of right to a dismissal as to make it proper for us to consider the motion to affirm. Whitney v. Cook, 99 U. S. 607.

(108 U. S. 17)

MAYER and others v. WALSH.

(December 18, 1882.)

APPEAL-PRACTICE-MOTION TO DISMISS.

Where, under the circumstances of the case, it may be that an appeal was well taken, the court may postpone the consideration of the motion to dismiss until the hearing on the merits.

Motion to Dismiss.

C. W. Hornor, for appellants.

P. Phillips and W. H. Phillips, for appellee.

WAITE, C. J. This is a cross-appeal, and the record has not been printed. As the case is here on the original appeal by the present appellee, we are not inclined to grant this motion in the absence of the printed record. It appears from the motion papers that the present appellant pleaded prescription, and we infer that this plea was not sustained. By his other defenses he defeated the claim in part. To

review the decree, so far as it is affected by these defenses, the present appellee appealed. If, on that appeal, these defenses are overruled, it may be important to the present appellant to insist on his defense of prescription against a claim that will then amount to more than $5,000. Had not the other side appealed, the present appellant could not, because the decree against him is less than $5,000. Under these circumstances it may be that this appeal was well taken. Without, however, deciding that question, we postpone the further consideration of the motion until the hearing on the merits.

(106 U. S. 546)

PIERCE and others v. INDSETH.

(January 8, 1883.)

COMMERCIAL LAW-FOREIGN BILL OF EXCHANGE-NOTARIAL SEAL-JUDICIAL NOTICE-TIMELY PRESENTATION-LAW OF PLACE-PROOF OF FOREIGN LAWS LIABILITY OF DRAWERS TO PAYEE.

The certificate of the protest of a bill of exchange by a notary in a foreign country is sufficiently authenticated by the seal of such notary impressed directly on the paper by a die with which ink was used.

The court will take judicial notice of the seals of notaries public, for they are officers recognized by the commercial law of the world, and will recognize the seal to the document in question as that of the notary, and as such authenticating the certificate of protest and entitling it to full faith and credit. On the question of timely presentation, the law of the place where a foreign bill of exchange is payable, governs, and not the law of the place where it is drawn. In such cases the drawer is deemed to act with reference to the law of that country, and to accept such conditions as it provides with respect to the presentment of the bill for acceptance and payment.

Whatever is required by law to be done at the place upon which a bill is drawn to constitute a sufficient presentation, either in time or manner, must be done according to that law, and whatever time is permitted within which presentment may be made by that law, the holder may take without losing his rights upon the drawer, in case the bill is not paid. So, also, if the bill be dishonored, the protest by the notary must be made according to the laws of the place of payment.

The general rule as to the proof of foreign laws is that the statute law must be proved by a copy properly authenticated; and that the unwritten law must be proved by the testimony of experts, that is by those acquainted with the law; but this rule may be varied by statute of a state by leaving it to the discretion of the court to require the production of a copy of the written law when the fact appears that the law in question is in writing.

Negligence of the payee in not presenting the bill for payment will not affect his legal rights if in point of fact the bill was presented within the time allowed by the laws of the place of payment.

Where the drawers had no funds with the bank drawn upon, at any time, and they relied for its payment on the advices of third parties, and there is no evidence that such advices were ever sent, not that the bank ever set apart any portion of the funds of such parties alleged to have so advised, and it does not appear that the bank drawn against had ever given the drawers credit, there is nothing which relieves them from liability to the payee.

In Error to the Circuit Court of the United States for the District of Minnesota.

This is an action by the plaintiff in the court below, Ole A. Indseth, against the defendants, composing the firm of Pierce, Simmons & Co., on a foreign bill of exchange, payable at sight to his order, drawn by them at Red Wing, in Minnesota, on the Christiania Bank, in Norway, which is as follows:

"Exchange 15,441 50-100 kroner, per stamp 2c.

"PIERCE, SIMMONS & CO., BANKERS,

RED WING, MINNESOTA, February 1, 1877. "At sight of this original of exchange (duplicate unpaid) pay to the order of O. A. Indseth 15,441 50-100 kroner, value received, and charge same to account of Sk. P. I. & Co., Chicago, as per advice from them.

"PIERCE, SIMMONS & CO.

“To Christiania Bank of Kredit Kasse, Christiania, Norway.”

The value of these kroners in our money was $4,469.35. Indseth resided at the time near Eidsvold, in Norway, and the bill was purchased by his agent in Minnesota, who forwarded it to him. He received it February 27, 1877, and retained it in his possession until April 12th following, when he presented it to the bank for payment, which was refused. He then caused the bill to be protested by a notary of Norway for non-payment. The drawers were notified of its non-payment by letter from the plaintiff, which they received at Red Wing as early as May 15, 1877, and also by the original certificate of protest of the notary, which, with a translation, was at that time shown to one of them by the agent of the plaintiff, to whom the document was sent for that purpose.

It appears from the findings of the court below that the drawers had no money to their credit with the Christiania bank when the bill was drawn, but depended for its acceptance and payment upon advices to the bank by Skow, Peterson, Isberg & Co., bankers, at Chicago. That firm failed and made an assignment on the twenty-first of March, 1877. It had, however, from February 28th to that date, inclusive, to its credit with the bank, money sufficient to pay the bill, but no portion of it had been set apart for that purpose, and it has been since paid to the assignee of the firm. On the fifteenth of Feb.