fore the said master, from time to time, under the direction of the said master, and that the said complainants may examine the said defend ants under oath as to the several matters pending on the said reference, and that the said defendants produce before the said master, upon oath, all such deeds, books, papers and writings, as the said master shall direct, in their custody or under their control, relating to said matters, which shall be pending before said master.

And it is further ordered and decreed, that a perpetual injunction issue out of and under the seal of this court, against the said defendants, commanding them, their attorneys, agents and workmen, to desist and refrain from making, using or vending any machine containing the new and useful improvement for which letters patent were granted to the said Henry Burden on the 2d day of September, 1840, and from in any manner infringing or violating any of the rights or privileges granted or secured by said

patent.

And it is further ordered, that the said com457*] plainants recover of the said defendants the damages or use and profits which shali be reported by the said master, and that upon the confirmation of his report or decree, be entered against the defendants therefor, and also for the costs of the complainants in this suit in this court, and that the said complainants have execution therefor, and for the costs in the said Supreme Court.

And it is further ordered and decreed, that such other proceedings be had herein, in conformity to the opinion of the said Supreme Court, as to law and justice may appertain, and that the parties and master may apply, upon due notice, to this court, upon the foot of this decree, for such other and further orders, instructions and directions, as may be neces

sary.

(A copy.)

A. A. BOYCE, Clerk.

And deponent further says, that on the 5th day of October, 1853, the solicitor for the defendants served upon Henry Burden, the President of the said complainants, a petition of appeal and a citation thereon, in the words and fig ures following:

and filed therein on the first Monday of December next, and that so much or such parts of said decree as declares, orders, adjudges and decrees as follows, to wit: "And it appearing to the said court that the said Henry Burden was the first and original inventor of the improvement on the spike machine in the bill of complaint mentioned, and for which a patent was issued to the said Henry Burden, bearing date the 2d September, 1840, as in said bill of complaint set forth, and that the said complainants have a full and perfect title to the said patent for said improvements, by assignment from the said Henry Burden, as is stated and set forth in the *said bill of complaint, may be re- [*458 versed, and that the appellants may be restored to all things which they have lost by reason thereof." DANIEL L. SEYMOUR, Solicitor for Appellants.

Dated Troy, Sept. 8, 1853

By the Honorable Samuel Nelson, one of the Judges of the Circuit Court of the United States for the Northern District of New York.

Whereas, Erastus Corning, John F. Winslow, and James Horner, lately filed in the Circuit Court of the United States for the Northern District of New York, a petition of appeal directed to the Supreme Court of the United States of America, stating that a decree was lately made in the Circuit Court of the United States for the Northern District of New York in Equity, bearing date the 4th day of September, 1850, in a certain cause therein pending, wherein the Troy Iron and Nail Factory were complainants, and Erastus Corning, John F. Winslow, and James Horner, were defendants, certain parts of which said decree are alleged to be erroneous and ought to be reversed, and further, stating that the matters in dispute in said cause, exclusive of costs, exceeded in value the sum of $2,000;

America.

The petition of Erastus Corning, Jonn F. Winslow, and James Horner, respectfully represents, that a decree was lately made in the Circuit Court of the United States for the Northern District of New York, in equity, bearing date the 4th day of September, 1850, in a certain cause pending in said court, where in the Troy Iron and Nail Factory were complainants, and your petitioners were defendants; certain parts of which decree, as hereinafter specified, are, as your petitioners are advised, erroneous, and ought to be reversed.

And your petitioners further show, that the matters in dispute in said cause, exclusive of costs, exceed the sum of $2.000. Whereupon your petitioners pray that the said decree, together with the pleadings, depositions, and all other proceedings in said cause, may be sent to the said Supreme Court of the United States

of;

You are, therefore, hereby cited to appear before the said Supreme Court of the United States at the City of Washington, on the first Monday of December next, to do and receive what may appertain to justice to be done in the premises.

Given under my hand, in the Circuit Court of the United States for the Northern District of New York, the 23d day of September, 1853. S. NELSON.

And deponent further says, that he has been informed and believes that the record and proceedings in said appeal have been duly filed with the clerk of this court.

SAMUEL STEVENS. Sworn before me this 16th day of November, LEONARD KIP,

1853. Master and Examiner in the Circuit Court of the Northern District of New York.

The Troy Iron and Nail Factory v. Erastus

Corning et al. IN EQUITY.

From the whole of that decree the complainant appealed, the whole of which decree was reversed by this court at its last term, and the Circuit Court was ordered by the mandate of this court to enter a decree in said cause, according to the prayer of complainant's bill, and such decree was entered by the said Circuit Court, at the June Term thereof, 1853, in com

Albany, November 9th, 1853.

SAMUEL STEVENS, Solicitor for Complainants. To D. L. SEYMOUR, Defendants' Attorney.

Upon this motion to dismiss the appeal, the cause was taken up.

It was argued by Messrs. Stevens and Johnson for the motion, and Messrs. Seymour and Seward against it.

Mr. Stevens, in support of the motion to dismiss, made the following points:

The only ordering part of the decree-the only judgment pronounced by the court below -was a decree dismissing the complainants' bill, with costs; from that decree the complainants duly appealed to this court, which decree was reversed, and a decree ordered according to the prayer of the bill, which was duly enter ed in the Circuit Court, before the defendants made the present appeal.

Preceding the ordering part of the decree, certain recitals were made by the Circuit Court, showing the reasons or grounds upon which that court pronounced the ordering part of the decree.

It is from the recitals preceding the decree in this cause, and not from the decree, that this appeal has been made.

The complainants, the respondents to this appeal, now move to quash or dismiss it upon the following grounds:

460*] *First. This court has appellate jurisdiction only upon appeals from final judg ments or decrees of the Circuit Court. (1 United States Statutes at Large, p. 84, sec. 22.) The ordering part of a decree is the only final decree or judgment of the court.

Second. But if the recitals preceding the ordering part of the decree of the Circuit Court could be appealed from, the defendants should have brought a cross appeal, which would be heard by this court with, and at the same time of, the original appeal, and one decree only would be pronounced by the appellate court. (1 Barbour's Ch. Prac., 397; Uguart's Prac. in House of Lords on Appeals and Writs of Error, pp. 37-40; Palmer's Prac. in House of Lords on Appeals and Writs of Error, p. 33; Hawley v. James. 16 Wend., 85–274; Mapes v. Coffin, 5 Paige, 296.)

A party cannot have a decree of the Circuit Court reviewed by this court two, three or more times, by appealing from different parts of the decree at different times. Every ground which he might have urged on the hearing of the first appeal, will be deemed to have been made by him, or if not made, to have been abandoned. (The Santa Maria, 10 Wheat., 443, 444; Ex-parte Sibbald, 12 Pet., 488.)

This attempt at an appeal by the defendants from the reasons of the decree, is analogous to an application to this court for a rehearing upon the original appeal, which is never granted after the cause has been remitted to the Circuit Court. (McArthur v. Browder, 4 Wheat., 488.)

*Third. The decree of the Circuit [*461 Court entered in this cause on the 4th September, 1850, was reversed by this court at its December Term, 1852, and the proceedings were remitted to the Circuit Court, and that court, at its June Term, 1853, entered a new decree, in pursuance of, and in compliance with, the mandate of this court. Therefore, on the 5th of October, 1853, the date of defendants' present appeal, there was no such decree of the Circuit Court as that entered by said court of the 4th of September, 1850, from parts of which the defendants claim to appeal.

Fourth. The only decree existing in the Circuit Court in this cause, since its June Term, 1853, is an interlocutory, and not a final decree, and cannot be appealed from. (Kane v. Whittick, 8 Wend., 219; 9 Pet., 1; 15 Id.,

Appeals from the Circuit Court to this court can only be from final decrees or judgments. (United States Statutes at Large, p. 84, sec. 122.)

Mr. Seymour and Mr. Seward opposed the motion to dismiss the appeal, upon the following grounds:

1. The decree of the Circuit Court, made on 4th September, 1850, disposed of the whole cause on the merits, and was therefore a final decree, and an appeal may be taken from it. (See Act of Congress, March 3, 1803.) By this

point against the defendants is not the subject of an appeal at all.

Again. If what the complainants allege is correct, that there is no decree now remaining in the court below but the decree which is entered on the mandate; and also, that, on ap 464*] peal *from that decree so entered on the mandate, the party aggrieved can review only the proceedings subsequent to that decree, then it results that the defendants can have no appeal at all from a decree in which the material issue upon the invention is found against them by the court below.

Again. In answer to this, it is said, that on the appeal brought by the complainants upon the issue as to a license found against them, the defendants were at liberty to fall back, and contest the issue of the invention found against them; but, in reply, we say that by the rules of the courts of equity, as well as by statute, it is optional to the defendants whether they will so fall back, and contest the issue found against them on the hearing of the appeal of the complainants, or whether they will bring their own distinct appeal.

VIII. The respondents' motion should be denied.

Mr. Justice Grier delivered the opinion of the court:

The Troy Iron and Nail Factory filed their bill in the court below, claiming to be assignees of a patent granted to Henry Burden for a new and useful improvement in machinery for manufacturing wrought nails or spikes." The bill charges, that the appellants, Corning & Company, have infringed their patent, and prays for an injunction and an account of profits, &c. The answer of the respondents below took defense on two grounds-first, that Burden was not the first and original inventor of the machine patented; and second, that the respondents used their machine under a license from the patentee. The court below sustained the defense on the latter ground, and entered the following decree: “Therefore, it is ordered, adjudged and decreed, that the said bill of complaint is hereby dismissed, with costs to be taxed, and that the defendant have execution therefor."

The case is now before us on a motion to dismiss the appeal. Looking at the case as exhibited to us by the record, it appears to be an appeal by respondents from a decree dismiss ing the complainant's bill with costs. It often happens that a court may decree in favor of a complainant, but not to the extent prayed for in his bill, and he may have just cause of appeal on that account. But the prayer of the respondent's answer is, that " he be hence dismissed, with his reasonable costs and charges, on this behalf most wrongfully sustained.' And having such a decree on the present case, he cannot have a more favorable one.

But the matter complained of forms no part of the decree of the court below.

It shows only that the judge, in reciting the inducement or reasons for entering a decree in favor of the respondents below, was of opinior that they were entitled to such decree, because they had succeeded in establishing one only of the two defenses alleged in their answer. It is the opinion of the court, on a ques tion of fact involved in the case, but not af fecting the decree. If the decree be correct, the party in whose favor it is given has no right to complain; yet his appeal prays that it may be reversed, and the appellants restored to all things which they have lost by reason thereof;" and the record shows they have lost nothing.

If the decree be reversed, according to the prayer of the appellants, the court must necessarily enter a decree for the complainants below. This would, probably, not meet the views of the appellants. They have put them selves in the anomalous position either of asking for the affirmance of the decree from which they have appealed, or of requesting this court to reverse a decree in their favor, and send back the record to the court below, with directions to enter the very same decree, but to assign other reasons for it. The court were not bound to give any reasons for their decree. The law gives the party aggrieved an appeal from a final decree of an inferior court. But it does not give the party who is not aggrieved an appeal from a decree in his favor, because the judge has given no reasons, or recited insufficient ones for a judgment admitted by the appellant to be correct.

There is a part of the history of this case which does not appear on the record; but being known to the court, and assumed by counsel on both sides to make part of the case, it will be necessary to notice the case under that aspect.

The degree in favor of the appellants, which is now appealed from, has already been before this court on an appeal by the complainant below. The parties were then fully heard, the decree of the Circuit Court reversed, and the case remanded for further proceedings. It is reported in 14 How., 194. It appears, therefore, that there is no such decree as that which is now complained of. The decree of the Circuit Court has been entirely annulled, reversed, and set aside by this court. Before that was done, the appellants had a full hearing on every point of defense set up in their answer. The court below had decided that the defend [*466 ant had a good defense under his plea of license, but not under the plea that Burden was not the first inventor of the patented machine. This court has decided, that the appellant's defense was insufficient on both pleas. The language of the court is (14 How., 208), "That the defendants have failed to prove that Burden was not such first inventor; and in our opinion the evidence given by them on that point rather serves to establish the originality of the invention than to impair it. The appellants stand upon the patent, as the first which was granted for the bending lever; and they may well do so, until other evidence than that in this record shall be given to disprove its originality."

It is plain, therefore, that under the guise of an appeal from the decree of the Circuit Court,

this is an appeal, in fact, from the decision of this court. For there is no other decree existing in the case except the decree of this court. There must be an end of litigation sometime. To allow a second appeal to a court of last resort, on the same questions which were open to dispute on the first, would lead to endless litigation. It is said by this court, in Martin v. Hunter, 1 Wheat., 355, “A final judgment of the court is conclusive upon the rights which it decides, and no statute has provided any process by which this court can revise its judg ment." (See, also, Sibbald v. United States, 12 Pet., 488.) It follows, therefore, that when a complainant has a decree in his favor, but not to the extent prayed for in his bill, and the respondent, appeals; if the complainant desires a more favorable decree, he must enter a cross appeal, that when the decree comes before the appellate court, he may be heard. For, when the decree is either affirmed or reversed by the appellate court, it becomes the decree of that court, and cannot be the subject of another appeal. But, in this case, where the decree of the court below dismissed the bill, no appeal by the respondent was necessary. He had a full opportunity to urge every defense set up in his answer. The printed arguments show that the defense, for want of originality in the patent, decree of the court below, and as we have was relied upon as a ground for affirming the already shown, was distinctly passed upon and overruled by this court.

A second appeal lies only when the court below, in carrying out the mandate of this court, is alleged to have committed an error. But on an appeal from the mandate, it is well settled, that nothing is before the court but the proceedings subsequent to the mandate. Whatever was formerly before the court, and was disposed of by its decree, is considered as finally disposed of. (See Himely v. Rose, 5 Cranch, 313; Canter v. The Ocean Insurance Company, 1 Pet., 511: The Santa Maria, 10 Wheat., 431; Rice v. Wheatly, 9 Dana, 272.)

-467*] *Moreover, as it is admitted that the court below have not yet acted upon the mandate of this court, and entered a final decree in pursuance thereof, there is no final decree, from which only an appeal can be taken. (See The Palmyra, 10 Wheat., 502; Chace v. Vasquez, 11 Id., 429.)

There are, therefore, three conclusive reasons for dismissing the present appeal:

1. The appellants have already been heard in this court on a former appeal.

2. There is no such decree as that from which the appeal purports to be taken.

THE UNITED STATES, Plaintiffs,

v.

JAMES L. DAWSON AND JOHN R. BAYLOR.

Trial of indictment pending in Circuit Court in Arkansas not affected by Act giving State Court right to try same offenses-sixth amendment to Constitution.

In June, 1844, Congress passed an Act by virtue of which the Circuit Court of the United States for the District of Arkansas was vested with power to try offenses committed within the Indian country. In July, 1844, it was alleged that a murder was committed in that country.

In April, 1845, an indictment was found by a grand jury, in the Circuit Court of the United States for the District of Arkansas, against a person charged with committing the murder.

In March, 1851, Congress passed an Act erecting nine of the Western counties and the Indian counto hold two terms there, and giving him jurisdictry into a new judicial district, directing the judge tion of all causes, civil or criminal, except appeals and writs of error, which are cognizable before a circuit court of the United States.

The residue of the State remained a judicial district to be styled the Eastern District of Arkansas.

This Act of Congress did not take away the power

and jurisdiction of the Circuit Court of the United States for the Eastern District to try the indictment pending.

of the United States for the Eastern Dis

THIS case came up from the Circuit Court

trict of Arkansas, upon a certificate of division in opinion between the judges thereof.

*The two following questions were [*468 certified, viz.:

1st. Did the Act of Congress, entitled "An Act to divide the district of Arkansas into two judicial districts," approved the third day of March, in the year of our Lord one thousand eight hundred and fifty-one, whereby the Western District of Arkansas was created and defined, take away the power and jurisdiction of the Circuit Court of the United States for the Eastern District of Arkansas, so that it cannot proceed to hear, try and determine a prosecution for murder, pending against the prisoner, James L. Dawson, a white man and not an Indian, upon an indictment found, presented and returned into the Circuit Court of the United States for the District of Arkansas, by the grand jury impaneled for that district, upon the sixteenth day of April, in the year of our Lord one thousand eight hundred and for ty-five, against James L. Dawson, a white man, for the felonious killing of Seaborn Hill, another white man and not an Indian, on the 8th day of July, A. D. 1844, in that country be

The appeal is therefore dismissed.

ORDER.

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the Northern District of New York, and was argued by counsel; on consideration whereof, it is now ordered, adjudged and decreed by this court, that this cause be, and the same is hereby dismissed, with

-costs.

S. C.-14 How., 194.

Cited-20 How., 481; 17 Wall., 284; 4 Otto, 499.

Arkansas, and which formed a part of the Indian country annexed to the judicial district of of Arkansas by the Act of Congress approved the 17th day of June, A. D. 1844, entitled "An Act supplementary to the Act entitled 'An Act to regulate trade and intercourse with the Indian tribes, and to preserve peace on the frontiers, passed thirtieth June, one thousand eight hundred and thirty-four,'" in which cause, so pending, no trial has as yet been had?

2d. Can the District Court of the United States for the Western District of Arkansas take jurisdiction of the case aforesaid, upon the indictment aforesaid, so found in the year