the weight as a precedent given to a decree for a permanent injunction in a patent case, the court may refuse to grant one when the case has been compromised and the defendant abandons it at the hearing." § 238. Appeals from injunction orders.-" Where, upon a hearing in equity in a District Court or a Circuit Court, or by a judge thereof in vacation, an injunction shall be granted or continued, or a receiver appointed by an interlocutory order or decree, 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 or continuing such injunction, or appointing such receiver, to the Circuit Court of Appeals: 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 or by the appellate court or judge thereof during the pendency of such appeal: provided further, that the court below may in its discretion require, as a condition of the appeal, an additional bond." There is no appeal to the Supreme Court of the United States from any of such orders; but the Circuit Court of Appeals can certify to the Supreme Court any question involved upon said appeal, even a question of jurisdiction. A Circuit Court of Appeals has jurisdiction of such an appeal, even, it seems, when the only question in dispute is one of jurisdiction. It has been held that a Circuit Court of Appeals has no jurisdiction of an appeal when the construction of the Constitution of the United States, or when the validity or construction of a treaty made by the United States, is the sole question involved. It seems that where such a question is 1 15 Hayes v. Leton, 5 Fed. R. 521. § 238. 126 St. at L. 826; 31 St. at L. 660. As to bond pending appeal, see Cotting v. Kansas City S. Y. Co., 82 Fed. R. 850. 2 Kirwan v. Murphy, 170 U. S. 205. 3 In re Tampa S. R. Co., 168 U. S. 583. 4 In re Tampa S. R. Co., 168 U. S. 583; Lake Nat. Bank v. Wolfeborough 2 Sav. Bank (C. C. A.), 78 Fed. R. 517. 5 Westerly v. Westerly Water Works, 76 Fed. R. 467; s. c., 22 C. C. A. 278; Mayor, etc. of Macon v. Ga. P. Co. (C. C. A.), 60 Fed. R. 781; Hastings v. Ames (C. C. A.), 68 Fed. R. combined with other questions of a different character, a Circuit Court of Appeals may, if the constitutional or treaty question is controlling, decline to take jurisdiction of the appeal, or may certify the constitutional or treaty question to the Supreme Court, and after that question is there decided proceed to judgment upon the appeal, or may decide the whole case in the first instance. Under this act the Circuit Courts of Appeals have jurisdiction to review, not only orders granting preliminary injunctions, but also interlocutory decrees made after a hearing upon the merits which grant perpetual injunctions and refer the cases to a master to ascertain profits and damages. It was held that a docket entry in a suit to enjoin the infringement of a patent, "Opinion - decree for complainants," did not constitute a decree for an injunction, although the opinion filed directed that an injunction be granted; and that no appeal could be taken until a decree was entered. The fact that the order or decree which grants an injunction also gives other relief, which, if granted alone, could not be reviewed until the final decree, does not prevent a review of the entire order." The Circuit Court of Appeals can then reverse the whole order and dismiss the bill or grant such other final relief upon the merits as the case before it may justify.10 Such final disposition of the case will not, however, ordinarily be made where the evidence has not been taken by deposition, unless the pleadings or the undisputed facts show that there can either be no right to relief or no defense to the bill." But where, before 726; Central Tr. Co. v. Citizens' St. Ry. Co., 82 Fed. R. 1; Indianapolis v. Central Tr. Co. (C. C. A.), 83 Fed. R. 529; Illinois Cent. R. Co. v. Adams (C. C. A.), 93 Fed. R. 852. Carter v. Roberts, 177 U. S. 496, 500; Cincinnati, H. & D. R. Co. v. Thiebard, 177 U. S. 615-620; Pike's P. P. Co. v. Colorado Springs (C. C. A.), 105 Fed. R. 1, 7. 7 Lockwood v. Wickes (C. C. A.), 75 Fed. R. 118; Raymond v. Royal B. P. Co. (C. C. A.), 76 Fed. R. 465. But see Standard El. Co. v. Crane El. Co. (C. C. A.), 76 Fed. R. 767. 8 Herrick v. Cutcheon (C. C. A.), 55 Fed. R. 6; s. c., 5 C. C. A. 21. 9 In re Tampa S. R. Co., 168 U. S. 583; Smith v. Vulcan Iron Works, 165 U. S. 518. 10 Ibid. 11 Highland Ave. & B. R. Co. v. Columbian Eq. Co., 168 U. S. 627; Lake Nat. Bank v. Wolfeborough Sav. Bank (C. C. A.), 78 Fed. R. 517; U. S. Rubber Co. v. Am. O. L. Co. (C. C. A.), 82 Fed. R. 248. But see Fidelity I. T. & S. D. Co. v. Dixon (C. C. A.), 78 Fed. R. 205. Upon such an appeal the discretion of the court below may be reviewed. Charles E. Hires Co. v. Consumers' Co. (C. C. A.), 100 Fed. R. 809. the act authorizing appeals from orders appointing receivers, an order appointed a receiver and contained no other injunction than the usual mandate that the defendant, its officers, agents and employees deliver to him the property in their hands, it was held that it was not appealable.12 An order vacating the appointment of a receiver and staying all further proceedings in the suit in which the receiver was appointed was held to be an injunction order and appealable.13 No appeal can be taken from an interlocutory order or decree which denies or which dissolves an injunction.14 12 Bissell C. S. Co. v. Goshen S. Co. (C. C. A.), 72 Fed. R. 545; Marden v. Campbell Pr. & Mfg. Co. (C. C. A.), 67 Fed. R. 809. 13 Baker v. Walter Baker & Co. (C. C. A.), 83 Fed. R. 3. See Tornanses 33 v. Melsing (C. C. A.), 106 Fed. R. 775; In re McKenzie, 180 U. S. 536. 14 Columbia Wire Co. v. Boyce (C. C. A.), 104 Fed. R. 172; Omaha & S. W. R. Co. v. Chicago, St. P., M. & O. Ry. Co. (C. C. A.), 106 Fed. R. 586. CHAPTER XVII. RECEIVERS. $239. Definition of receiver.- A receiver is an officer appointed by a court of equity to assume the custody of property pending litigation concerning the same. The effect of the appointment of a receiver is to put the property in his custody as an officer of the court, for the benefit of the party ultimately proved to be entitled, but not to change the title or even the right of possession to the property. In England the term is usually applied only to those appointed to receive the rents and profits of land and to get in outstanding property; and one selected to carry on or superintend a trade or business is usually denominated "a manager," or "a receiver and manager." But in the United States both classes of officers are called receivers. The Revised Statutes authorize the Comptroller of the Currency to appoint in certain cases a receiver of a national banking association, whose powers and duties are in many respects analogous to those of a receiver appointed by a court of equity. But, as the learning upon this subject does not concern the practice of courts of equity, it will not be considered here. 2 § 240. When receivers will be appointed. A receiver may be appointed to provide for the safety of property pending liti gation to determine the title to the same; to preserve property in danger of being dissipated or destroyed by those having the legal title to its possession; to preserve the property of infants during their minority, when they have no guardian and their parents are dead or unfit to be trusted with it; to preserve the property of idiots and lunatics when it is impossible to obtain a proper person as committee; and when the appointment is authorized by statute. A receiver may be appointed to provide for the safety of property pending litigation to determine $239. 1 Union Bank v. Kansas C. Bank, 136 U. S. 223, 236. 2 Daniell's Ch. Pr. (2d Am. ed.) 2006. See U. S. R. S., §§ 5234-5237; 19 St. at L. 63; 1st Supp. U. S. R. S. 216; 24 St. at L., ch. 28, p. 8; Price v. Abbott, 17 Fed. R. 506; supra, § 15; infra, §§ 240, 330. § 240. 1 Kerr on Receivers (2d Am. ed.), 3. 3 the title to the same, whether the litigation is in a court of equity, of probate, of bankruptcy, in a foreign court," or sometimes, though very rarely, in a court of law. The most usual cases where a receiver is appointed are, suits in equity to obtain equitable assets, for the foreclosure of a mortgage, and for the dissolution or winding up of the affairs of a partnership. It was the English rule that a receiver could not be appointed at the suit of a first mortgagee, since he had it in his power to take possession himself. In this country, however, receivers are frequently appointed in such a case. Ordinarily, a receiver of the effects of a partnership will not be appointed unless the bill prays a dissolution and shows a proper case for the same." But where suits have been instituted to compel partners to act according to the provisions of instruments into which they have entered, the court will take care that the decree shall not be defeated by anything to be done in the mean time, and may appoint a receiver to protect the property.10 Receivers may be appointed to preserve property in danger of being dissipated or destroyed by those having the legal title to its possession, at the suit of beneficiaries, legatees, next of kin, or creditors, where a trustee,11 executor,12 or administrator 13 is in 2 Davis v. Duke of Marlborough, 2 Swanst. 108; Curling v. Marquis Townshend, 19 Ves. 628. But see Moore v. Bank of Br. Columbia, 106 Fed. R. 574. King v. King, 6 Ves. 172; Matter of Colvin, 3 Md. Ch. Dec. 279; Robinson v. Taylor, 42 Fed. R. 803; Kerr on Receivers (2d Am. ed.), 28-37. 4 Sedgwick v. Place, 3 N. B. R. 35; Alabama & C. R. Co. v. Jones, 5 N. B. R. 97; Keenan v. Shannon, 9 N. B. R. 441. See 30 St. at L. 544, 546, § 2. 7 Berney v. Sewell, 1 J. & W. 647. 8 See, for example, Stanton v. Alabama & C. R. Co., 2 Woods, 506; Allen v. D. & W. R. Co., 3 Woods, 316, 326. 9 Goodman v. Whitcomb, 1 J. & W. 589; Oliver v. Hamilton, 2 Anst. 453; Daniell's Ch. Pr. (2d Am. ed.) 1966, 1967; Kerr on Receivers (2d Am. ed.), 93. 10 Daniell's Ch. Pr. (2d Am. ed.) 1967; Const v. Harris, T. & R. 496. 11 Hagenbeck v. Hagenbeck Z. A. Co., 59 Fed. R. 14; McCosker v. Brady, 5 Transatlantic Co. v. Pietroni, 1 Barb. Ch. (N. Y.) 329; Brodie v. Johns. 604. 6 Talbott v. Scott, 4 K. & J.,96; Fingal v. Blake, 2 Molloy, 50; Whitney v. Buckman, 26 Cal. 447; Horton v. White, 84 N. C. 297; Jeffreys v. Smith, 1 J. & W. 298; Robinson v. Taylor, 42 Fed. R. 803. But see Tornanses v. Melsing (C. C. A.), 106 Fed. R. 775. Barry, 3 Meriv. 695; Janeway v. 12 Utterson v. Mair, 2 Ves. Jr. 95; Scott v. Becher, 4 Price, 346. But see Gladdon v. Stoneman, 1 Madd. 143, n.; Langley v. Hawk, 5 Madd. 46; Kerr on Receivers (2d Am. ed.), 20. 13 Hervey v. Fitzpatrick, Kay, 421; Ware v. Ware, 42 Ga. 408. |