Barnard et al. v. Gibson. by them in the town of Watervliet, in the county of Albany, or either of said machines, which machines are machines for dressing boards and plank, by planing, tonguing, or grooving, or either, or in some separate combination, constructed upon the principle and plan specified and described in the schedule annexed to letters patent issued to Wm. W. Woodworth, administrator of William Woodworth, on the 8th day of July, 1845; which letters were a renewal upon a formal surrender for an imperfect specification of letters patent issued to Wm. Woodworth on the 27th day of December, 1828, and extended on the 16th day of November, 1842, to take effect on the 27th day of December, 1842, and again extended by act of Congress on the 26th day of February, 1845, and from infringeing upon or violating the said patent in any way what soever. "And it is further ordered, adjudged, and decreed, that it be referred to Julius Rhodes, Esq., of Albany, counsellor at law, as a master pro hac vice in this cause, with the usual powers of a master of this court, to ascertain and report the damages which the plaintiff has sustained, arising from the infringement of his rights by the defendants, by the use of the said two machines by them. "And it is further ordered, that the report of the said master herein may be made, either to this court in term time, or to one of the judges thereof at chambers in vacation; and that either party may, on ten days' notice to the other of time and place, apply, either to this court in term time, or to one of the judges thereof at chambers in vacation, for confirmation of such report. "And it is further ordered, that either party may at any time, on ten days' notice of time and place to the other, apply to this court in term time, or to one of the judges thereof in vacation, for further directions in the premises. "And the question of costs, and all other questions in this cause, are hereby reserved until the coming in of the said report. "And the complainant shall either pay to the defendants, or set off against the damages to be awarded, the sum of two *thousand dollars, which he offered in his bill to pay them, with interest from the 5th of December, 1845." An appeal from this decree brought the case up to this court. [*654 Mr. Seward moved to dismiss the appeal, upon the ground that the decree was not a final one, which motion was opposed by Mr. Taber. Barnard et al. v. Gibson. Mr. Seward stated the case, and then said that it was admitted that an appeal would not lie except from a final decree. The only question is, what is the distinction between final and interlocutory decrees. The same principle may be applied which governs the construction of judgments at law; those are final which grant a remedy upon the whole matter, and dismiss a party from the court. But in equity there is some difficulty, owing to the different nature of the relief which is granted. A final decree in equity may be defined to be one which definitely adjudges the whole subjectmatter; an interlocutory decree, one which disposes of some parts and reserves others for future decision. (2 Dan., Ch. Pr., Part 2, pp. 631, 632, 635, 638, 641, London ed. of 1840.) The present decree is not final, when tested by the principles laid down by Daniel. 1. It expressly reserves the question of costs. They do not depend upon any statute, but upon judicial discretion. 2. It does not determine the amount of damages, but refers the subject to a master to ascertain and report. 3. Even if the master decides, still the decree does not adjudge them to be according to the report. 4. It does not settle any principles upon which damages can be computed; whether they are for one machine or two, &c. 5. It reserves a decision upon the rights of the respective parties. The complainant offered, in his bill, to pay $2,000; the decree says he shall do so, but does not say whether it is an extinguishment of the claim, or only a set-off. 6. The bill prays that the machines and their produce may be delivered to the plaintiff; but the decree is silent upon this point. The question is reserved. It may be said that a perpetual injunction is decisive of the rights of the parties. But it is only an order, which the court may revoke at any time. It cannot be pleaded in bar. We think the parties are still in court. 7. The decree does not give all the relief which is prayed for in the bill. Whatever is asked and not granted is left undecided, because the bill is not dismissed as to that. (Mr. Seward then commented on 10 Wheat., 502; 11 Wheat., 429; 8 Pet., 318; 9 Pet., 1; 6 Cranch, 51; 15 *Pet., 287; 2 How., 62; 5 How., 51; 6 How., 203: Id., 208, 209.) *655] Mr. A. Taber, against the motion. 1. The decree in question is a "final decree," upon a sound construction of the Judiciary Act of 1803, chap. 93. § 2. The Barnard et al. v. Gibson. fundamental purpose of this act was to give an appeal, if required, where the amount in controversy was sufficient, to the end that the substantial rights of parties should not be finally disposed of by Circuit Courts. Not so of the English statutes of limitations, authorities construing which have been cited on the other side. Their leading object was, not to give or take away an appeal, but to restrict by a short limitation appeals taken pendente lite, allowing a longer one to those taken after the cause was ended. Wherefore, the words "final decree," in these English acts, are justly interpreted to mean one which is a finis of the cause, and in our act, one which is a finis of substantial rights of the parties. which, unless immediately appealed from, would take away property from one and give it to another, or work irreparable mischief. (6 How., 202, 203, 206; 13 Pet., 15; 3 Cranch, 179; 2 Smith, Ch. Pr., 187, 188.) The decree in question would do both. It was intended by the Circuit Court finally to adjudge and determine the patent rights in controversy. It takes them away from the defendants, and vests them in the complainant; and, by the perpetual injunction it directs, immediately renders worse than valueless,—an encumbrance upon the ground,—the expensive erections of the defendants for their enjoyment. For the costs of the cause, no appeal would hereafter lie. (4 Russ. Ch., 180; 3 Pet., 307, 319; 2 How., 210, 237.) The other matters reserved are merely in execution of the decree already passed. Before these matters could have been adjusted, and an appeal prosecuted to effect, our patent rights would have expired by their own limitation, and nothing remain for the appellate offices of this court but a post mortem examination of our rights for the vindication of abstract law. The perpetual injunction, the main relief prayed, is a final execution; not the mere extension of a preliminary injunction, which latter has been repeatedly denied in this cause, and is wholly inapplicable to a contest between assignees under the same patent, which is, therefore, no more primâ facie evidence for one party than the other. (4 Burr., 2303, 2400; 1 Vern., 120; Id., 275; 7 Ves., 1; 3 Meriv., 622; 14 Ves., 130-132; Drewry on Injunctions, 223, § 5, 221, § 3, 223, § 4; Eden on Injunctions, 207.) *2. But if this is not a case for an appeal under the act above cited, it assuredly must be one of "all [*656 other cases," provided for by the seventeenth section of the patent act of 1836, chap. 747. In patent causes, evidently for the reasons above alluded to, there is no limitation of an appeal except the safe one, that "the court shall deem it Barnard et al. . Gibson. reasonable to allow the same." If the act means this honorable court, this appeal has been allowed by it, by one of its justices at chambers. If, as is more probable, the Circuit Court was intended (6 How., 458, and note, and 477), then Justice Nelson, being a quorum of that court (Laws of 1837, ch. 801, § 3), acted as such, judicially, in allowing it at chambers. (1 Brock., 380.) Or if error has occurred in the mauner of taking this appeal, no statute restriction being in the way, it should be allowed, in furtherance of justice, to be amended now. (Laws of 1789, ch. 20, § 32; 16 Pet., 319; 7 Wend. (N. Y.), 508.) And this, according to the last-cited case, would be properly done by simply denying this motion. 3. If it be replied to the last point, that this is not a case arising under the patent law, but under the common law of contracts and assignments, then the Circuit Court never had jurisdiction, the cause being between residents of the same State, and an appeal lies at any time, to reverse its decision already made, and dismiss the cause. (2 How., 244; 3 Id., 693; 8 Pet., 148; 16 Id., 97; 3 Dall., 19.) Mr. Justice M'LEAN delivered the opinion of the court. This is an appeal from the decree of the Circuit Court for the Northern District of New York. The parties claim conflicting interests as assignees of Woodworth's patented planing-machine. The cause was submitted to the circuit judge, who decreed, that the defendants below be perpetually enjoined from any further constructing or using in any manner the two planing-machines, &c., and the case was referred to a master to ascertain and report the damages which the plaintiff has sustained, arising from the infringement of his rights by the defendants by the use of the said two machines. The report of the master to be made in term time, or to one of the judges at chambers in vacation, and on ten days' notice either party to move for confirmation of the report, &c. The question of costs was reserved until the coming in of the report, &c. A motion is made to dismiss this appeal, on the ground that the decree is not final. * No point is better settled in this court, than that an appeal may be prosecuted only from a final decree. The cases are *numerous where appeals have been dismissed, because *657] the decree of the Circuit Court was not final. It is supposed there was a departure from this uniform course of decision, at the last term, in the case of Forgay et al. v. Conrad, 6 How., 201.1 See note to case cited in the text. Barnard et al. v. Gibson. In that case the court says,- "The decree not only decides the title to the property in dispute, and annuls the deeds under which the defendants claim, but also directs the property in dispute to be delivered to the complainant, and awards execution. And according to the last paragraph in the decree, the bill is retained merely for the purpose of adjusting the accounts referred to the master. In all other respects, the whole of the matters brought into controversy by the bill are finally disposed of as to all of the defendants, and the bill as to them is no longer pending before the court." "If these appellants, therefore, must wait until the accounts are reported by the master and confirmed by the court, they will be subjected to irreparable injury." The decree in that case would have been executed by a sale of the property, and the proceeds distributed among the creditors of the bankrupt, and lost to the appellants, before the minor matters of account referred to the master could be adjusted and acted on by the court. The course of procedure in the Circuit Court was irregular, and the consequent injury to the defendants would have been irreparable. Effect should not be given to its final orders by the Circuit Court, until the matters in controversy shall be so adjusted as to make the decree final. Any other course of proceeding will, in many cases, make the remedy by an appeal of no value. The decree in the case under consideration is not final, within the decisions of this court. The injunction prayed for was made perpetual, but there was a reference to a master to ascertain the damages by reason of the infringement; the bill was not dismissed, nor was there a decree for costs. In several important particulars, this decree falls below the rule of decision in Forgay v. Conrad. The execution of the decree in that case would have inflicted on the defendant below an irreparable injury. The bill was dismissed as to the principal matters in controversy, and there was a decree for costs. It is said that the decree in this case, by enjoining the defendants below from the use of their machines, destroys their value and places the defendants in a remediless condition. That in the course of a few months their right to run the machines will expire, and that no reparation can be obtained for the suspension of a right by the act of the court. It is alleged, too, that many thousands of dollars have been invested in the machinery, which by such a procedure becomes useless. *The hardship stated is an unanswerable objection to the operation of the injunction, until all the mat [*658 |