AMENDMENTS.

An act to amend the act entitled "An act to establish circuit courts of appeals and to define and regulate in certain cases the jurisdiction of the courts of the United States, and for other purposes," approved March third, eighteen hundred and ninety-one.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the seventh section of the act of congress entitled "An act to establish circuit courts of appeals and to define and regulate in certain cases the jurisdiction of the courts of the United States, and for other purposes," approved March third, eighteen hundred and ninety-one, be, and the same is hereby, amended to read as follows:

"That where, upon a hearing in equity in a district court or a circuit court, an injunction shall be granted, continued, refused, or dissolved by an interlocutory order or decree or an application to dissolve an injunction shall be refused in a case in which an appeal from a final decree may be taken under the provisions of this act to the circuit court of appeals, an appeal may be taken from such interlocutory order or decree granting, continuing, refusing, dissolving, or refusing to dissolve an injunction to the circuit court of appeals: 43 Provided, That the appeal must be taken within thirty days from the entry of such order or decree, and it shall take precedence in the appellate court; and the proceedings in other respects in the court below shall not be stayed unless otherwise ordered by that court during the pendency of such appeal: And provided further, That the court below may in its discretion require as a condition of the appeal, an additional injunction bond." Approved February 18, 1895.

48 An order so modifying an interlocutory decree for a broad perpetual injunction against infringement of a patent as to permit defendant to manufacture and sell, for a limited time, certain infringing machines, is an order dissolving pro tanto the original injunction, and is consequently an appealable interlocutory decree, in the meaning of this section. Bissell Carpet-Sweeper Co. v. Goshen Sweeper Co. (6th Circuit) 19 C. C. A. 25, 72 Fed. 545.

A decree, made after final hearing on the merits, declaring infringement of a trade-mark, awarding a perpetual injunction, and referring the cause to a master for an accounting, is not an appealable final decree, but is an interlocutory decree, from which an appeal will lie within 30 days, under this section. Raymond v. Baking-Powder Co. (7th Circuit) 76 Fed. 465, 22 C. C. A. 276.

This act authorizes appeals not only from orders granting, continuing, etc., preliminary injunctions, but also from interlocutory decrees made after full hearing on the merits, granting an injunction, and referring the cause to a master to ascertain profits and damages. Lockwood v. Wickes (8th Circuit) 75 Fed. 118, 21 C. C. A. 257.

A decree adjudging that complainant is the owner of the patents sued on, that the claims of said patents, or some of them, are valid, and that defendants have infringed them, and granting a perpetual injunction, is appealable

as a final decision upon the matters so adjudicated, under section 6 of the act establishing the circuit courts of appeal, and not as an interlocutory decree, under amended section 7, although the decree further refers the cause to a master for an accounting of profits, and expressly reserves the question of costs. Per Showalter, Circuit Judge (Woods, Circuit Judge, contra). Standard Elevator Co. v. Crane Elevator Co., 22 C. C. A. 549, 76 Fed. 767.

The assembling of a prayer for an unnecessary injunction with a prayer for modification of a decree or order will not warrant a review of the decree or order, when a direct appeal therefrom is unauthorized by law. Safe-Deposit Co. v. Dickson (7th Circuit) 78 Fed. 205, 24 C. C. A. 60.

But an appeal from an interlocutory decree granting an injunction may be taken from the whole decree. It need not be restricted to the part granting the injunction. Smith v. Iron Works, 17 Sup. Ct. 407, 165 U. S. 518, 41 L. Ed. 810; Norton v. Wheaton, Id.

And where a decree appoints a receiver for a corporation, orders its officers to deliver the property into the receiver's hands, and enjoins them from interfering further with it, the injunction, while incidental to the appointment of the receiver, forms a substantial part of the decree, and is therefore appealable. Lake Nat. Bank v. Wolfeborough Sav. Bank (1st Circuit) 78 Fed. 517, 24 C. C. A. 195.

And in such case the propriety of the entire order or decree may be considered, notwithstanding the statutes do not provide for an appeal from an order appointing a receiver. United States Rubber Co. v. American Oak Leather Co. (7th Circuit) 82 Fed. 248, 27 C. C. A. 118; Metropolitan Nat. Bank v. Same, Id.

An appeal will not lie from an order appointing a receiver, however, merely because it contains the usual mandatory direction, in the nature of an injunction, requiring the defendant, its officers, agents, and employés, to deliver to the receiver the property in their hands. Highland Ave. & B. R. Co. v. Columbian Equipment Co., 18 Sup. Ct. 240, 168 U. S. 627.

In a suit in which an appeal would lie to the circuit court of appeals from a final decree, an appeal may be taken from an order granting a temporary injunction and appointing a receiver, even though the jurisdiction of the circuit court is also involved. In re Tampa Suburban R. Co., 18 Sup. Ct. 177, 168 U. S. 583.

And even though the question of the lower court's jurisdiction is the only question involved. Lake Nat. Bank v. Wolfeborough Sav. Bank (1st Circuit) 78 Fed. 517, 24 C. C. A. 195.

However, an order dissolving a temporary injunction, which under the circumstances is harmless, will not be reviewed in order to decide a question of jurisdiction. Lake Street El. R. Co. v. Farmers' Loan & Trust Co. (7th Circuit) 77 Fed. 769, 23 C. C. A. 448.

And where the question as to the jurisdiction of the circuit court was of a grave and vital character, held, that the circuit court of appeals would not then determine it, but would decide the question of the propriety of the injunction on its merits, and leave the jurisdictional question until after final decree below, so that the parties, if they so desired, might take it direct to the supreme court. Carson v. Combe (5th Circuit) 86 Fed. 202, 29 C. C. A. 660. The circuit court of appeals has no jurisdiction of an appeal from an interlocutory order granting a preliminary injunction when constitutional questions are involved. Town of Westerly v. Westerly Waterworks (1st Circuit) 76 Fed. 467, 22 C. C. A. 278; Same v. Seamen's Friend Soc., Id.

The circuit court of appeals, on an appeal from an interlocutory decree of the circuit court granting an injunction, may consider and decide the case on its merits. Smith v. Iron Works, 17 Sup. Ct. 407, 165 U. S. 518, 41 L. Ed. 810; Norton v. Wheaton, Id.; In re Tampa Suburban R. Co., 18 Sup. Ct. 177, 168 U. S. 583.

On appeal from an order made on ex parte affidavits, granting a preliminary injunction, the court may, if of opinion that the bill has no equity to support it, reverse the order and direct the dismissal of the bill. Stover Mfg. Co. v. Mast, Foos & Co. (7th Circuit) 32 C. C. A. 231, 89 Fed. 333.

Upon an appeal from an order granting a preliminary injunction, where the question involved is one of law, determining the ultimate rights of the par

ties, and is fully presented by the record, the court of appeals will decide the same upon the merits, and render a decree finally disposing of the case. City of Knoxville v. Africa (6th Circuit) 77 Fed. 501, 23 C. C. A. 252; Citizens' Ry. Co. v. Same, Id.

But the circuit court of appeals will not determine the cause on its merits, when the rights of the parties can be made to appear only by full proof of the facts. City of Knoxville v. Africa (6th Circuit) 77 Fed. 501, 23 C. C. A. 252; Citizens' Ry. Co. v. Same, Id.; Clark v. McGhee (5th Circuit) 87 Fed. 789, 31 C. C. A. 321.

On appeal from an order relating to a preliminary injunction, the decision of the judge below will not be reversed unless it appears from a consideration of the case, as presented to him, that his legal discretion to grant or withhold the injunction was improvidently exercised. Thompson v. Nelson (6th Circuit) 18 C. C. A. 137, 71 Fed. 339; City of Knoxville v. Africa (6th Circuit) 23 C. C. A. 252, 77 Fed. 501; Bradshaw v. Bank (7th Circuit) 23 C. C. A. 578, 77 Fed. 932; Southern Pac. Co. v. Earl (9th Circuit) 27 C. C. A. 185, 82 Fed. 690; Ritter v. Ulman (4th Circuit) 24 C. C. A. 71, 78 Fed. 222.

On appeal from an order granting a preliminary injunction on the strength of a prior decision by the circuit court against another party, such prior decision will be given the same weight which it should have before the circuit court, in the absence of some controlling reason for disregarding it. American Paper Pail & Box Co. v. National Folding-Box & Paper Co. (1892) 51 Fed. 229, 2 C. C. A. 165, followed. 79 Fed. 795 (C. C. 1897) affirmed. Fastener Co. v. Littauer (2d Circuit) 84 Fed. 164, 28 C. C. A. 133, 80 Fed. 712. But the power of the circuit court of appeals to review an order granting or refusing a preliminary injunction cannot be hampered or restricted by any prior ruling of the circuit court, involving the same question or any phase of the question, though made in an order from which a direct appeal is not allowed, especially where such ruling relates to the jurisdiction of the court. Lake Street El. R. Co. v. Farmers' Loan & Trust Co. (7th Circuit) 77 Fed. 769, 23 C. C. A. 448.

On appeal from an order granting a preliminary injunction in a patent case, where the court below bases its action entirely upon a prior decision in another circuit, sustaining the patent, the circuit court of appeals is not itself constrained to adopt the rulings of such other circuit court, but is at liberty to re-examine the same, and dispose of the questions of law conformably to its own convictions, giving to the former adjudication only such weight as, in its own judgment, the same is entitled to. Thomson-Houston Electric Co. v. Hoosick Ry. Co., 27 C. C. A. 419, 82 Fed. 461. See the note at the end of this case.

Where a preliminary injunction has been granted solely on the strength of a decision in another circuit, and thereafter the judgment in the latter case is reversed and vacated by the circuit court of appeals, and the bill ordered to be dismissed, even because of an accord and satisfaction, this so changes the status of affairs that the preliminary injunction will be dissolved on an appeal therefrom. Order, Printing-Press Co. v. Prieth (1897) 77 Fed. 976, reversed. Prieth v. Manufacturing Co. (3d Circuit) 80 Fed. 539, 25 C. C. A. 624. It is not enough to justify the circuit court of appeals in reversing an order of the circuit court refusing a preliminary injunction to stay a foreclosure sale, in a suit to vacate the decree of foreclosure, that the complaint probably contains sufficient averments to warrant the relief prayed for; but it must be made to appear that there are reasonable grounds for believing that the material allegations of the bill, tending to show fraud and collusion, are true, and that they will probably be established on the final hearing. Foley v. Safe-Deposit Co. (8th Circuit) 21 C. C. A. 78, 74 Fed. 759.

When the circuit court, after final hearing, has made an interlocutory order for a perpetual injunction, it has concluded the matter so far as it is concerned; and, if the defendant fail to appeal within the 30 days allowed by the statute, his only remedy is by appeal after final decree. He cannot thereafter move the court to dissolve the injunction, and then take an appeal from its order denying his motion. Appeal (C. C. 1896) 77 Fed. 181, dismissed. Baker v. Walter Baker & Co. (4th Circuit) 83 Fed. 3, 27 C. C. A. 396.

Where a patent is sustained after a full hearing on the merits, and the tak

ing of an account would involve little labor and expense, complainant should be allowed to waive his right to an injunction until the decree becomes final, so as to deprive defendant of an opportunity to appeal from the interlocutory decree. Lockwood v. Wickes (8th Circuit) 75 Fed. 118, 21 C. C. A. 257.

An appeal in a patent case from an interlocutory decree awarding an injunction and accounting must be dismissed when it appears that the patent has expired pending the appeal. Lockwood v. Wickes (8th Circuit) 75 Fed. 118, 21 C. C. A. 257.

An appellant cannot of right dismiss his own appeal; and, when an ap peal is dismissed on his motion, he is not entitled, in the absence of special equitable considerations, to have the order expressed to be without prejudice; but where an appeal from an interlocutory order granting a preliminary in junction was so dismissed, the order may state the fact that the dismissal was before any hearing on the merits. Appeal, Tannage Patent Co. v. Donallan, 75 Fed. 287 (1896), dismissed. Donallan v. Patent Co. (1st Circuit) 79 Fed. 385, 24 C. C. A. 647.

A circuit court having ordered an injunction to issue, an appeal was taken, and thereupon it directed that the injunction should not issue until further order. Application was then made to the circuit court of appeals for an original order directing the court to vacate this latter order. Held, that the appellate court could give no such directions, as its jurisdiction is only appellate, and it can act upon the court below only by mandate. North Bloomfield Gravel Min. Co. v. U. S. (9th Circuit) 83 Fed. 2, 27 C. C. A. 395.

The supreme court will not issue a writ of certiorari to review the action of a circuit court in granting a preliminary injunction and appointing a receiver, on the ground that the orders were made by a judge outside the limits of his circuit, since there is an adequate remedy by appeal to the circuit court of appeals. In re Tampa Suburban R. Co., 18 Sup. Ct. 177, 168 U. S. 583.

An act to extend the jurisdiction of the United States circuit court of appeals, Eighth circuit, over certain suits now pending therein on appeal and writ of error from the United States court in the Indian Territory.

Be it enacted by the senate and house of representatives of the United States of America in congress assembled, that the jurisdiction of the United States circuit court of appeals for the Eighth judicial circuit be, and is hereby, extended to all suits at law or equity now pending therein upon writ of error to or appeal from the United States court in the Indian Territory in all cases wherein such writ of error or appeal would have vested jurisdiction in said circuit court of appeals but for the act of congress approved March first, eighteen hundred and ninety-five, entitled "An act to provide for the appointment of additional judges of the United States court in the Indian Territory, and for other purposes." **

44

Approved February 8, 1896.

44 See the notes to section 13 of the act creating the circuit courts of appeals, page xxxix., supra.

An act to withdraw from the supreme court jurisdiction of criminal cases not capital, and confer the same on the circuit courts of appeals.

Be it enacted by the senate and house of representatives of the United States of America in congress assembled, That so much of section five of the act entitled "An act to establish circuit courts of appeals and to define and regulate in certain cases the jurisdiction of the courts of the United States, and for other purposes," approved March third, eighteen hundred and ninety one, as reads "in cases of conviction of a capital or otherwise infamous crime," be amended by striking out

the words "or otherwise infamous," so that the same will read “in cases of conviction of a capital crime;" and that appeals or writs of error may be taken from the district courts or circuit courts to the proper circuit court of appeals in cases of conviction of an infamous crime not capital: 45 provided, that no case now pending in the supreme court or in which an appeal or writ of error shall have been taken or sued out before the passage of this act shall be hereby affected, but in all such cases the jurisdiction of the supreme court shall remain, and said supreme court shall proceed therein as if this act had not been passed.

Approved January 20, 1897.

45 In the act of March 1, 1895, creating a court of appeals for the Indian Territory, and giving it full jurisdiction, civil and criminal, the provision of section 11, that "writs of error and appeals from the final decision of said appellate court shall be allowed, and may be taken to the circuit court of appeals for the Eighth judicial circuit, in the same manner and under the same regulations as appeals are taken from the circuit courts of the United States," conferred upon that court full appellate jurisdiction, including that in cases of infamous crimes, which was theretofore vested in the United States supreme court. Harless v. U. S. (8th Circuit) 31 C. C. A. 397, 88 Fed. 97. The act of March 1, 1895 (2 Supp. Rev. St. p. 392), which extended the jurisdiction of the United States courts in the Indian Territory to capital cases, having also created the court of appeals in that territory, with power to entertain appeals and writs of error, the jurisdiction of such court to review judg ments in capital cases is exclusive, and the supreme court has no appellate jurisdiction of such cases. Brown v. U. S., 19 Sup. Ct. 56; Curley v. Same, Id. An act to amend the act creating the circuit court of appeals in regard to fees and costs, and for other purposes.

Be it enacted by the senate and house of representatives of the United States of America in congress assembled, that the second section of an act to establish circuit courts of appeals, passed March third, eighteen hundred and ninety-one, be amended so that the clause therein which now reads, "The costs and fees in the supreme court now provided for by law shall be costs and fees in the circuit courts of appeals," shall read, "The costs and fees in each circuit court of appeals shall be fixed and established by said court in a table of fees, to be adopted within three months after the passage of this act: provided, that the costs and fees so fixed by any court of appeals shall not, with respect to any item, exceed the costs and fees now charged in the supreme court." Each circuit court of appeals shall, within three months after the fixing and establishing of costs and fees as aforesaid, transmit said table to the chief justice of the United States, and within one year thereof the supreme court of the United States shall revise said table, making the same, so far as may seem just and reasonable, uniform throughout the United States. The table of fees, when so revised, shall thereupon be in force for each circuit.48

Approved February 19, 1897.

46 The table of fees prescribed by the supreme court pursuant to this act may be found on page clxxi., infra.

Sections 2 and 3 of the act approved June 1, 1898, concerning carriers engaged in interstate commerce and their employés, provide, in