Statement of the case.

The circuit judge, in passing upon the motion to set aside the execution, said as follows:

"The 22d section of the act of 1789, and the 2d section of the act of 1803, are held to require the judge, on signing the citation, on appeal, to require security in a sum sufficient to cover the whole judgment, damages, and costs, as well as the costs in error.* The inference is at least plausible, that until some actual award of damages and costs to a definite amount, the party appealing does not know, and the judgo taking the security does not know what should be the amount of the bond, nor in what amount the sureties should justify; and that no judgment can be said to be rendered, and more especially no decree in admiralty can be said to be passed, until some actual award of recovery by the libellant is made.

"If the case was not ripe for an appeal, then such appeal would be dismissed, and it necessarily follows that it can have no influence on the present motion; that is to say, if it was premature and would be dismissed by the Supreme Court, then it cannot stay the libellant's proceedings. If it was not premature, but will operate to give the Supreme Court jurisdiction, still, not having been taken within ten days after the entry of the order appealed from, it cannot stay execution, unless I should hold that an appeal may be taken before the ten days begin to run, within which it must be taken. In view of the decision in Silsby v. Foote, I prefer to leave it to the Supreme Court to say whether the ten days begin to run so soon as the time arrives when an appeal may be taken; and whether, if the respondent waits until the actual entry of a decree which settles definitely all the details, his appeal, if taken within ten days thereafter, will stay execution.

แ

Here, an execution has been issued when there is no judg ment or decree awarding to the libellants a recovery, or awarding to them any execution or other means of giving effect to the decision of the court. I am informed that it has not been unusual in this circuit, to issue execution in cases in admiralty, when no other judgment than an order of affirmance has been made or entered, the proctor, for that purpose, taking the amount

* Catlett v. Brodie, 9 Wheaton, 553; Stafford v. Union Bank, 16 Howard, 185.

Argument in favor of dismissing the last appeal.

of damages to be collected from the decree in the District Court, and the costs of appeal from the taxation by the clerk. I think such a practice both loose and irregular, and I am not aware of any like practice anywhere."

The circuit judge accordingly set the execution aside, thus implying, of course, that the first appeal was premature, and in consequence of this opinion and the action of the court a decree was thus entered on the 27th day of May, 1871:

"A decree of affirmance having been entered herein on the 19th day of March, 1870, by which the decree of the District Court was in all things affirmed with costs to be taxed, which costs were taxed on the 21st day of April, 1870, at $640.61; now, on motion of the proctors for the appellees, it is ordered, adjudged, and decreed, that the appellee bave judgment against said S. G. Wheeler, appellant, for the amount so decreed then, together with the costs so taxed, amounting, with interest, to the sum of $5444.69, for which judgment is hereby entered against him, the said appellant, and that the appellees have execution therefor."

From this judgment a petition of appeal to this court was filed on the 7th day of June, 1871, and on the same day a citation issued.

The present motion was made to dismiss this last appeal.

Mr. Donohue, in support of his motion:

Silsby v. Foote has passed on this very question. Under that decision the first appeal is good, and the question whether it stays proceedings or not does not charge this matter. In the present matter, therefore, the case is before the court, on the first appeal; and two appeals are not allowable in the same case on the same question.

The statute giving the party an appeal gives the defeated party the right to appeal from the rendering or passing of the judgment or decree complained of. He has his choice, and when he takes it, and his appeal is good, his further right or appeal in that case is gone.

Syllabus.

Both contingencies on which an appeal rest had occurred. When the first appeal was taken the judgment had passed and the decree had been rendered; all that remained to be done was to make up the amount,-a merely clerical operation.

Messrs. Goodrich and Wheeler, contra, argued that in view of the whole case, if either appeal was to be dismissed it should be the first.

The CHIEF JUSTICE:

It is quite true that two appeals are not allowed in the same case on the same question. We must determine which one of the two should be dismissed. It may be that the first appeal was from a decree which might be taken as final, if the second decree had not been rendered.* But it is obvious that the circuit judge did not regard it as final, and it was certainly defective. The second decree was rendered, not by inadvertence, but in view of the rendition of the first decree; and, in order to settle the practice in the Circuit Court for the Southern District of New York, that a decree of affirmance, without taxation of costs and without specifying the sum for which it is rendered, is not to be regarded as a final decree.

We think this the better practice, and therefore hold that the first appeal must be

DISMISSED as irregular.

BEVANS, RECEIVER, v. UNITED STATES.

1. Where a receiver of public moneys has such moneys in his hands, which would not have been in his hands at all, if he had paid them over with the promptness that the acts of Congress and the Treasury Regulations made in pursuance of them, prescribing the duties of receivers, in this respect made it his duty to do, and which therefore-inasmuch as

* Rubber Company v. Goodyear, 6 Wallace, 153; Silsby v. Foote, 20 Howard, 290.

Statement of the case.

the duties of receivers under their official bonds are defined by those acts and Treasury Regulations-it was also his duty under his official bond to do, evidence that the moneys were forcibly taken from him by the agents of the so-called "Confederate States," usurping the authority of the rightful government, and compelling obedience to itself exclusively throughout the State in which the receiver was, held to have been rightly refused in a suit by the government on the official bond of such receiver, as short of meeting the necessity of the case; it having been owing to the default of the receiver in not paying over promptly and at the right times, that the moneys were exposed to seizure, at all, by the rebel usurping government.

2. Where there are no disputed facts in the case, the court may properly tell the jury in an absolute form how they should find.

ERROR to the Circuit Court for the Eastern District of Arkansas; the case being this:

Prior to February, 1860, Bevans had been appointed a receiver of public money for the district of lands, subject to sale at Balesville, Arkansas, and gave bond conditioned that he "should have truly and faithfully executed and discharged, and should continue truly and faithfully to execute and discharge all the duties of the said office."

These duties are defined by acts of Congress and by Treasury Regulations enacted in pursuance of them.

The 6th section of the act of May 10th, 1800, made it the duty of all such receivers to transmit to the Secretary of the Treasury accounts of all public moneys by them received, within thirty days in case of public sale, and quarterly in case of private sales, and to transmit the money received by them within three months after its receipt. The act of August 6th, 1846,* however, and subsequent acts made it the duty of such receiverst "to keep safely, without loaning, using, depositing in banks, or exchanging for other funds than as allowed by the act, all the public money collected by them, or otherwise at any time placed in their possession and custody, till the same is ordered, by the proper department or officer of the government, to be transferred, or paid out, and when such orders for transfer, or payment, are received, faithfully and promptly to make the same as † Section 6.

*9 Stut. at Large, 59.