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$ 653. A bill in the nature of a bill of review, differs from a bill of review only in respect of the legal character of the complainant. The latter bill can be filed by either of the parties to the decree which is sought to be reviewed, or by their respective privies in representation, such as heirs, executors, or administrators; but the former is required to be filed, where privies in estate, such as devisees or assignees of an original party, seek to secure the reversal or modification of a final decree after the expiration of the term at which it was entered. Neither of these sorts of bills is to be confounded with a supplemental bill in the nature of a bill of review. That is still another variety, and its character and operation have already been outlined.'
$ 654. An appeal to the Supreme Court is demandable from every final decree, in cases touching patent rights, regardless of the amount involved therein,' provided it is taken within two years after the entry of the decree. But in order to operate as a supersedeas, and thus stay execution, an appeal must be taken within sixty days after the rendition of the decree; and indeed an execution may be issued, if an appeal is not taken within ten days after such rendition. But in the latter case, a supersedeas afterward obtained will prevent further proceedings under the execution, though it will not interfere with what has already been done. The time within which appeals may be taken, may properly be held to begin either when the case is finally decided, or when the formal decree is signed by the judge, and filed with the clerk of the court.” When an appeal operates as a supersedeas, it so operates only as against the money recovery provided for in the decree, and
Story's Equity Pleading, Section 409.
Sections 647 and 648 of this book.
* Revised Statutes, Section 699; Philip 0. Nock, 13 Wallace, 185, 1871; Dale Mfg. Co. v. Hyatt, 125 U. S. 51, 1887; St. Paul Plow Works 0. Starling, 127 U. S. 376,
4 Revised Statutes, Section 1008.
5 Revised Statutes, Sections 1012 and 1007.
6 Board of Commissioners v. Gorman,
19 Wallace, 663, 1873. ? Silsby v. Foote, 20 Howard, 290, 1857.
not as against that part of the decree which directs the payment of the master's fees,' nor as against that part which directs an injunction to issue ; but the judge who enters a decree granting an injunction, has discretionary power to suspend or modify the same pending an appeal.'
$ 655. On the hearing of an appeal in the Supreme Court, the decree may generally be attacked by the appellant, upon any ground upon which it was resisted in the court below. There are a few exceptions to this rule. The decree cannot be assailed on the ground that the court below refused to set aside a decree pro confesso,' or refused to allow the appellant to retract an admission which he had made in his pleadings; or rendered any other decision which belonged to the judicial discretion of the court to make. Nor can a decree be attacked in the Supreme Court, on account of any error made by a master in chancery in taking an account of profits or damages, unless that error was brought before the court below for correction, by means of a proper exception to the master's report. Where a decree is reversed and remanded for further proceedings, and a second decree is entered by the court below after those proceedings are taken, and an appeal is taken from the second decree, that decree cannot be assailed on account of any errors that occurred prior to the former decree.' No decree can be attacked by the appellee, on the appellant's appeal. Where either party to a decree intends to ask the Supreme Court to direct it to be altered, he must appeal to that tribunal, whether the other party appeals or not." Where both parties appeal, both appeals are heard together in the
? Myers 0. Dunbar, 1 Bann. & Ard. 565, 1874.
? Whitney 0. Mowry, 3 Fisher, 175, 1867.
3 Equity Rule 93.
4 Dean v. Mason, 20 Howard, 198, 1857.
5 Jones v. Morehead, 1 Wallace, 155, 1863.
• Kinsman v. Parkhurst, 18 How
ard, 289, 1855.
? Himely v. Rose, 5 Cranch, 313, 1809; The Santa Maria, 10 Wheaton, 431, 1825; American Insurance Co. 0. Canter, 1 Peters, 511, 1828; Corn. ing v. Troy Iron & Nail Factory, 15 Howard, 451, 1853.
8 Corning 0. Troy Iron & Nail Factory, 15 Howard, 451, 1853.
Supreme Court, and the complainant in the court below is entitled to open and to close the argument.' A decree may also be attacked by an appellant, on several grounds upon which it may not have been resisted in the court below. Non-jurisdiction of equity falls in this category;' and so does want of invention, when that want results from facts of which the court will take judicial notice.' Where a defendant interposed several defences in the court below, and where that court held them all to be bad, except one which it held to be good, and therefore dismissed the bill; and where the Supreme Court on an appeal, finds the latter defence to be bad, it will thereupon decide whether either of the others are good, and if it finds either of them to be so, it will affirm the decree.*
$ 656. After the Supreme Court has heard an appeal, it may affirm the decree, or may reverse it, or may modify it, or may remand the case to the court below for further proceedings. Where it affirms the decree, it ends the litigation, leaving the court below to enforce its adjudication, if any enforcement is required. Where it reverses the decree, it generally does so at the appellee's costs, so that the court below, when it receives the mandate, will have nothing to do but to tax those costs, and enter a decree therefor; and from such a decree there is no appeal. When it modifies the decree, it may do so in either of several respects. For example, it may change a decree which was entered for the appellant with costs, to one without costs, and in that event it will require the appellee to pay his own costs in the Supreme Court.' It may also change the amount of the decree, instead of remanding the case to the court below for a recomputation. Where it remands a case for further pro
* Rules of the Supreme Court of the United States, Rule 22.
* Hipp o. Babin, 19 Howard, 271, 1856.
* Brown 0. Piper, 91 U. S. 41, 1875.
* Troy Iron & Nail Factory 0. Corning 14 Howard, 193, 1853.
5 Revised Statutes, Section 701.
6 Elastic Fabrics Co. v. Smith, 100 U. S. 111, 1879.
? O'Reilly v. Morse, 15 Howard, 121, 1853.
8 Parks v. Booth, 102 U. S. 106, 1880.
ceedings, the proceedings prescribed may even extend to a trial at law, or by a jury in equity, of the questions of fact involved in the case.'
$ 657. A certificate of division of opinion, is a means of taking questions of law to the Supreme Court, where those questions arise in a case heard by two judges in the court below, and where those judges disagree about their proper solution.' No question of infringement or other question of fact can be taken to the Supreme Court in this method ;' and such a certificate must state the precise points of law which are involved, or the case will be remanded without an answer.“
1 Cochrane v. Deener, 94 U. S. 784, 1876.
. Revised Statutes, Section 693.
113 U. S. 616, 1884.
4 Wilson o. Barnum, 8 Howard, 258, 1850.
680. Averting effect of public ac.
quiescence. 681. Averting preliminary injunc
tion by proving repeal or expiration of patent, or fault in
title thereto. 682. Averting preliminary injunc
tion by proving license. 683. By proving estoppel. 684. By showing laches. 685. Preliminary injunction must
generally follow a cause and an
application therefor. 686. Bonds instead of injunctions,
where complainant grants li.
censes. 687. Where infringing machinery
embodies non-infringing features, also where it was
658. Jurisdiction to grant injunc
tions. 659. Preliminary injunctions. 660. Bills for preliminary injunc
tions. 661. Notices of motions for prelimi.
nary injunctions. 662. Motions for preliminary in
junctions. 663. Suspensions of motions for
preliminary injunctions. 664. Temporary restraining orders. 665. Elements of prima facie rights
to preliminary injunctions. 666. Prior adjudication. 667. Public acquiescence. 668. Duration of public acquiesc.
ence in a strict monopoly. 669. Duration of public acquiesc
ence in a licensed monopoly. 670. Public acquiescence need not
be universal to be efficacious. 671. Decrees pro confesso. 672. Consent decrees. 673. Defendant's admission of va
lidity. 674. Interference decisions. 675. The complainant's title. 676. Infringements. 677. Defences to motions for pre
liminary injunctions; and first
by way of traverse. 678. Defences by way of confession
and avoidance. 679. Averting effect of prior adjudi.
structed under a junior patent. 688. Bonds required from complain
ants in certain cases. 689. Injunctions not averted by the
existence of a remedy at law. 690. Injunctions pro confesso on
withdrawal of opposition to a
motion for an injunction. 691. Discretion of the court in
granting or refusing injunc
tions. 692. Motions to dissolve preliminary
injunctions. 693. Motions to dissolve for errors
in point of law. 694. Motions to dissolve on account of newly discovered evidence.