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HORACE C. SILSBY ET AL., APPELLANTS, v. ELISHA FOOTE.

December 1, 1857

HORACE C. SILSBY ET AL., APPELLANTS,
v.
ELISHA FOOTE.



THIS was an appeal from the Circuit Court of the United States for the northern district of New York, sitting as a court of equity. There were two cases upon the docket, with precisely the same caption, one numbered 54, and the other 106. The case in question was the one numbered 106, which it was moved to dismiss, for the following reasons: And the said appellee comes into court at the December term thereof, 1857, and moves the said court to dismiss the appeal in this cause, docketed as No. 106 at the said term, upon the ground that there had been previously taken by the said appellants an appeal from the same portions of the decree made below, which are appealed from in this cause, and which prior appeal is still pending and undetermined in this court; and such motion will be made upon the records filed in this cause, and in cause No. 54 on the docket for December term, 1857. R. H. GILLET,

The opinion of the court was delivered by: Story, J., said the party had a right to appeal as soon 'as the decree was pronounced.' Michond v. Girod, 4 How., 503, proceeded upon the same ground.

December 18, 1857. Of Counsel for Appellee.

Mr. Gillet's argument was as follows:

Foot sued Silsby and others in equity in the Circuit Court for the northern district of New York, for violating his patent. A final decree was rendered therein on the 28th day of August, 1856. On the 4th of September thereafter, the defendants, by Samuel Blatchford, their solicitor, petitioned for an appeal from certain portions of the decree, which was allowed on the 6th September, by Mr. Justice Nelson, being within ten days of the date of the decree. Upon this appeal, the record of the proceedings were sent, and have been printed, and the case stands as No. 54 on the docket for the present term. (See Record in No. 54, Record, pp. 1, 3.)

The decree was enrolled on the 11th day of December, 1856, on which day the same solicitor, in behalf of the defendants, presented a second petition of appeal from the same portions of the decree, which appeal was allowed on the same day, by N. K. Hall, district judge, and this appeal is now before the court at the present term as No. 106. (See Record, pp. 1, 3.)

A motion is now made by Foot, the appellee, to dismiss the last-mentioned appeal, of which due notice has been given.

The question presented is, which of the two periods is the one contemplated by the twenty-second section of the judiciary act of 1789, which provides, 'that final judgments and decrees may be removed and reaffirmed in the Supreme Court, and which shall not be done, however, except within five years after the rendering or passing the judgment judgment or decree complained of.' (1 U. S. L., 84, 85, sec. 22.)

When was the decree passed–at the time of the hearing and actual decision, or when it was enrolled?

This question is answered by reference to the mode of doing business in a court of equity. The court sits and decides, and its clerk or other officer enters the same in the minutes of the proceedings of the court. This is the act of the court performing its highest judicial functions. All that follows, whether performed by the clerk or judge, is merely carrying out the judicial determination, and authenticating it. The decision, or rendering, or passing, has been made; and what is subsequently done is mere authentication.

'To enrol' means 'to register, to enter on the rolls of chancery or other courts, to make a record.' (Bouvier, 1 vol., 469.)

'Enrolment–the registering or entering on the rolls of Chancery, King's Bench, Common Pleas, or Exchequer, or by the clerk of the place of the record of the Quarter Sessions of any lawful,' &c. (Ib., Inc. L. Dic.)

Curtis, in his Commentaries, (p. 234,) speaks of the time when a decree is 'pronounced,' as the time from which the statute runs.

At page 534 he speaks of the 'date of the final decree;' if appealed from in ten days thereafter, it will operate as a supersedeas.

Appeals have been recognized on appeal before docketing or enrolling. In Roy v. Law, 3 Cranch, 179, a decree for a sale on a mortgage was held to be a ...


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