subsequent bidder must do like the first until no person will advance on the last bidder, when the latter is declared the purchaser; 18 unless there has been a reserved bidding fixed, when if the last bidding does not reach the reserved one the person conducting the sale declares that the lot has not been sold, but has been bought in by the persons interested in the estate. 19 It seems that the court may direct that the sale be made for cash, in a suit under a railroad mortgage which provides that the purchasemoney may be paid in bonds.20 A bid may be revoked any time before the hammer falls.21 A party to the suit has the right to buy at the sale.22 The sale does not take effect until confirmed by the court.23 Before the confirmation of the sale, a party to the suit, or even a stranger, may intervene and have the sale set aside on paying the purchaser's expenses and offering a sufficient advance in price.24 The confirmation may be upon terms.25 The purchaser may be required to assume responsibility for obligations of the receiver as a condition of the confirmation of the sale.26 Should the purchaser fail to pay the money promised, a resale will be ordered, provided the rights of third persons have not intervened; 27 and he may be compelled by attachment issued upon a rule or order to show cause without a new suit, to pay the difference between his bid and the amount realized from the second sale, even though the sale has not been confirmed.28 Such a resale may be ordered by a summary proceeding upon the return of an order to show cause served upon the purchaser,29 and upon the parties at whose suit the sale was made.30

The purchaser at the sale and those who purchase from him take the property subject to the right of the court to modify the decree or the terms of the sale, on appeal, or at the same or the

18 Daniell's Ch. Pr. ch. xxvi.

19 Daniell's Ch. Pr. ch. xxvi.

20 Farmers' L. & Tr. Co. v. G. B. & M. R. R. Co., 10 Biss. 203; s. c. 6 Fed. R. 100. 21 Blossom v. Railroad Co., 3 Wall. 196. See Mayhew v. West Virginia Oil & Oil Land Co., 24 Fed. R. 205, 215.

22 Smith v. Black, 115 U. S. 308. 28 Mayhew v. West Virginia Oil & Oil Land Co., 24 Fed. R. 205, 215. For a case where the amount of the price was considered and held adequate, see Lake Superior Iron Co. v. Brown, Bonnell & Co., 44 Fed. R. 539.

24 Blackburn v. Selma R. Co., 3 Fed. R. 689.

25 Farmers' L. & Tr. Co. v. Green Bay & Minn. R. R. Co., 10 Biss. 203; s. c. 6 Fed. R. 100; F. L. & Tr. Co. v. Central R. R. of Iowa, 17 Fed. R. 758.

26 F. L. & Tr. Co. v. Central R. R. of Iowa, 17 Fed. R. 758.

27 Stuart v. Gay, 127 U. S. 518. 28 Stuart v. Gay, 127 U. S. 518; Camden v. Mayhew, 129 U. S. 73.

29 Stuart v. Gay, 127 U. S. 518. See Jaffrey v. Brown, 29 Fed. R. 476. 30 Terbell v. Lee, 40 Fed. R. 40.

succeeding term of the court.31 A material change of the terms may be a ground of relieving them from the purchase.32 A party bidding at a foreclosure sale makes himself thereby a party to the suit, and subject to the jurisdiction of the court for all orders necessary to compel the perfecting of his purchase.33 He has the right to be heard on all questions thereafter arising affecting his bid,34 which are not foreclosed by the terms of the decree of sale, or expressly reserved to him by such decree.35 Where not concluded by the terms of the decree, any subsequent proceedings to determine in what securities, of diverse value, his bid shall be made good, are matters affecting his interests on which he has the right to be heard; 36 and from the rulings thereupon, and on all matters whereby his interests are injuriously affected, he has the right to appeal after the final decree.37

31 Olcott v. Hendrick, 12 S. C. Rep. 81; 141 U. S. 543, 547; infra, § 352.

85 Kneeland v. American L. & Tr. Co., 136 U. S. 89, 95; Swann v. Wright's Ex

32 Olcott v. Hendrick, 12 S. C. Rep. 81; ecutors, 110 U. S. 590. 141 U. S. 543, 547.

83 Kneeland v. American L. & Tr. Co., 136 U. S. 89, 95; Stuart v. Gay, 127 U. S. 518.

34 Kneeland v. American L. & Tr. Co., 136 U. S. 89, 95; Williams v. Morgan, 111 U. S. 684.

36 Kneeland v. American L. & Tr. Co., 136 U. S. 89, 95.

87 Kneeland v. American L. & Tr. Co., 136 U. S. 89, 95; Blossom v. Milwaukee & C. Rd. Co., 1 Wall. 655; Williams v. Morgan, 111 U. S. 684.

CHAPTER XXIV.

DECREES.

§ 317. Definition and Classification of Decrees. - A decree is a sentence or order of a court of equity pronounced after a hearing of the points of issue, and corresponds to a judgment of a court of law. A decree should be distinguished from a decretal order. A decretal order is an order in the nature of a decree, made upon motion or petition, either before or after the hearing, or in an independent proceeding.1 According to the different standpoints from which they may be regarded, decrees are classified, as final or interlocutory; as in personam or in rem; as absolute, conditional, decrees nisi, or decrees in the nature of decrees nisi.

§ 318. Final and Interlocutory Decrees. - Decrees are either final or interlocutory. These terms are used with different meanings in the English practice and in that in the courts of the United States. A final decree in the English Chancery was a complete determination of every question arising in a cause. An interlocutory decree was one which reserved the further consideration of any question arising in a cause till a future hearing.2 In strictness, moreover, every decree was said to be interlocutory until it was signed and enrolled. In England, an appeal lay from an interlocutory as well as from a final decree ; but, under the Judiciary Acts, before that of March 3, 1891, only final decrees of a Federal court could be brought to a court of appeal for revision.5 On account of the inconvenience which would have followed, had the old definition been applied to the term used in this statute, the Federal courts have refused to follow the English Chancery in this respect. As far as appeals are concerned, a decree is considered final which decides the right to property, and orders that it be sold or delivered to a party; or creates a lien upon property

§ 317. 1 Barbour's Chancery Practice, 337.

§ 318. 1 Seton's Decrees (4th ed.), 2. 2 Seton's Decrees (4th ed.), 2.

8 Forum Romanum, 183; Seton's Decrees (4th ed.), 2.

4 Forgay v. Conrad, 6 How. 201, 205. 5 U. S. R. S. §§ 631, 692.

by the issue of receiver's certificates or otherwise; or directs a specific sum of money to be paid to a party either by another person or out of a fund in court, provided that the successful party is entitled to compel its immediate execution, even though the consideration of other matters arising upon the pleadings is reserved for further consideration" in it.7 A decree is final which settles all the rights of the parties involved in the pleadings, though it gives leave to either one of them to apply at the foot of the decree "in relation to any matter not finally determined by it."8 A decree dismissing a bill with costs to be subsequently taxed was held to be a final decree, although a judgment for the costs was subsequently entered after their taxation. A decree dismissing a bill as to all matters except one severable from the rest was held to be a final decree as regards the matters which it then determined.10 All other decrees which reserve any question for the court's further decision, even though they direct money to be paid into court, or property to be delivered to a receiver,12 or to a new trustee appointed by the court,13 or dissolve an injunction,14 or punish a party for contempt,15 or direct a sale, but do not sufficiently specifically determine the property to be sold to warrant an immediate sale,16 or direct a sale, but do not appoint the time of sale,17 are, it seems, interlocutory decrees from which no appeal can under the Judiciary Acts be taken;

6 Chief Justice Taney in Forgay v. Conrad, 6 How. 201, 204; Michoud v. Girod, 4 How. 503; Ray v. Law, 3 Cranch, 179; Whiting v. Bank of the United States, 13 Pet. 6; Wabash & E. Canal Co. v. Beers, 1 Black, 54; Bronson v. Railroad Co., 2 Black, 524; Milwaukie & M. R. R. Co. v. Soutter, 2 Wall. 440; Thomson v. Dean, 7 Wall. 342; Railroad Co. v. Bradleys, 7 Wall. 575; Stovall v. Banks, 10 Wall. 583; French v. Shoemaker, 12 Wall. 86; Marin v. Lalley, 17 Wall. 14; Trustees . Greenough, 105 U. S. 527; Farmers' L. & Tr. Co., Petitioner, 129 U. S. 206; Lewisburg Bank v. Sheffey, 140 U. S. 445.

7 St. Louis, I. M. & S. R. R. Co. v. Southern Express Co., 108 U. S. 24; Mo. K. & T. R. R. Co. v. Dinsmore, 108 U. S. 30; Lewisburg Bank v. Sheffey, 140 U. S. 445.

8 French v. Shoemaker, 12 Wall. 86. 9 Fowler v. Hamill, 139 U. S. 549.

11

10 Hill v. Chicago & E. R. R. Co. 140 U. S. 52. But see Keystone Iron Co. v. Martin, 132 U. S. 91.

11 Forgay v. Conrad, 6 How. 201; Beebe v. Russell, 19 How. 283; Louisiana Bank v. Whitney, 121 U. S. 284. But see Wabash & Erie Canal v. Beers, 1 Black, 54.

12 Forgay v. Conrad, 6 How. 201; Beebe v. Russell, 19 How. 283; Hentig v. Page, 102 U. S. 219. But see Wabash & Erie Canal v. Beers, 1 Black, 54.

13 Pulliam v. Christian, 6 How. 209. 14 Young v. Grundy, 6 Cranch, 51; Moses v. Mayor, 15 Wall. 387; Verden v. Coleman, 18 How. 86; Knox County v. Harshman, 182 U. S. 14.

15 Hayes v. Fischer, 102 U. S. 121. 16 Railroad Co. v. Swasey, 23 Wall. 405. 17 Parsons v. Robinson, 122 U. S. 112; Burlington, C. R. & N. Ry. Co. v. Simmons, 123 U. S. 52.

although, if the decision of the court in making them was erroneous, the final decree may be reversed on that account upon an appeal by a party who was thereby injured.18

§ 319. Decrees in personam. - Decrees are either in personam or in rem. Decrees in personam are those which contain a command to one of the parties to a suit in equity. Decrees in rem are such as without containing command to either of the parties transfer the title to property. Decrees in personam may direct the performance of, or the abstention from an act or acts. The ordinary decree of a court of equity is a decree in personam. Such a decree may be made even though it directs the performance of or abstention from an act, or directs a transfer, or otherwise affects the title to property beyond the jurisdiction of the court.1 By statute when a Federal court of equity awards an injunction against the infringement of a patent, it may assess the damages the complainant has sustained by the injunction, as well as compel an account of the profits; 2 and has the power to award treble damages but not to award treble profits. A statute provides that "the original jurisdiction of the circuit court for the Southern District of New York shall not be construed to extend to causes of action arising within the Northern District of said. State." Where in order to obtain the relief sought it would be necessary for the court to take possession by its officers of land beyond its territorial jurisdiction, it has been said that such a decree should not be granted. Thus, it seems that the court will not decree a partition of land beyond the jurisdiction, since

19 Buckingham v. McLean, 13 How. 244; Peek v. Frame, 9 Blatchf. 194; Saun150. ders v. Logan, 2 Fisher, 167; Schwanzel v. Holenshade, 3 Fisher, 196; Brodie v. Orphir Silver Mining Co., 4 Fisher, 37.

§ 319. 1 Arglasse v. Muschamp, 1 Vern. 75; Carron Iron Co. v. Maclaren, 5 H. L. C. 416; Muller v. Dows, 94 U. S. 444; Wheeler v. McCormack, 4 Fisher's Pat. Cas. 433; s. c. 8 Blatchf. 267. For an excellent review of the authorities, see the learned opinion of Judge, subsequently Chief Judge Davies, in Gardner v. Ogden, 22 N. Y. 327. See also Carpenter v. Strange, 141 U. S. 87.

2 U. S. R. S. § 4921.

8 U. S. R. S. §§ 4921, 4917; Livingston v. Woodworth, 15 How. 546; Zine v. Peck, 13 Fed. R. 475; Lyon v. Donaldson, 34 Fed. R. 789; Welling v. La Bau, 35 Fed. R. 302; Guyon v. Serrell, 1 Blatchf.

4 Covert v. Sargent, 42 Fed. R. 298; Campbell v. James, 5 Fed. R. 807.

5 U. S. R. S. § 657; Hodge v. Hudson River Railroad Co., 3 Fisher's Pat. Cas. 410; s. c. 6 Blatchf. 85; Locomotive E. S. T. Co. v. Erie Railway Co., 10 Blatchf. 292; Black v. Thorne, 10 Blatchf. 66. See § 23.

6 Muller v. Dows, 94 U. S. 444, 449; Macgregor v. Macgregor, 9 Iowa, 65; Glen v. Gibson, 9 Barb. (N. Y.) 634; Story's Eq. Jur. § 1292; 2 Spence, 8, n (d); Smith's Eq. 30; Bispham's Eq. § 47.