sented by the claimant, and the same having been refused, the court, of its own motion, instructed the jury to the effect that, if the evidence satisfied the jury that the lessee and occupant of the distillery made sales of spirits produced by him which he omitted or neglected to enter in his books, with intent to defraud the Government, or with intent to conceal from the officers the fact of such sales, then he would be guilty, and it would be their duty to find for the plaintiffs, under the first article of the information; that the mere absence of that party from the State or the country was not of itself evidence upon which they could base a verdict, but if they found that he absconded and fled from justice, when detected and charged with the frauds alleged against him in the case, that that fact might be considered by the jury, with other evidence, as tending to prove his fraudulent intents and guilt; that the information is a proceeding to condemn and forfeit to the United States certain property both real and personal, for alleged offenses against the revenue law; that the property in question consists of a distillery, with its fixtures and apparatus, and the ground within the inclosure on which the distillery stands, together with the various articles of personal property enumerated in the information, and that the present defendant is the claimant of the property, contesting the grounds of forfeiture assigned by the Government; that the gist of the proceeding consists in the alleged fraudulent acts and omissions of the les see and occupant of the distillery, or his agent and employés; and whether the charges against him be positive aots done by him, or omissions to do what the law requires of him as a distiller, fraud is a necessary element in the case, without which there can be no forfeiture. is forfeited, just as if the distiller were the owner. Burroughs, Taxation, 67. Cases arise, undoubtedly, where the judg ment of forfeiture necessarily carries with it, and as part of the sentence, a conviction and judgment against the person for the crime committed: and in that state of the pleadings it is clear that the proceeding is one of a criminal character; but where the information, as in this case, does not involve the personal conviction of the wrong-doer for the offense charged, the remedy of forfeiture claimed is plainly one of a civil nature, as the conviction of the wrong. doer must be obtained, if at all, in another and wholly independent proceeding. 1 Bish. Cr. L., 6th ed., sec. 835, note 1; U. S. v. Three Tons of Coal, 6 Biss., 379. Forfeitures, in many cases of felony, did not attach at common law where the proceeding was in rem until the offender was convicted, as the Crown, Judge Story says, had no right to the goods and chattels of the felon, without producing the record of his conviction; but that rule, as the same learned magistrate says, was never applied to seizures and forfeitures created by statute in rem, cognizable on the revenue side of the Exchequer Court, for the reason that the thing in such a case is primarily considered as the offender, or rather that the offense is attached primarily to the thing, whether the of fense be malum prohibitum or malum in se; and he adds, that the same principles apply to proceedings in rem in the admiralty. The Palmyra, 12 Wheat., 1. Corresponding views were expressed by the same learned Judge in a case decided at a much later period, in which he remarked that the Act of Congress in question made no exception whatsoever, whether the alleged aggression was with or without the co-operation of the owners. Nor, said the Judge in that case, is there any Evidence of the statements and declarations of the lessee and occupant of the distillery, voluntarily made while under arrest and after-thing new in a provision of that sort. It is not wards, were offered by the district attorney, as tending to show his fraudulent intent in the doing and omitting to do certain acts assigned in the information as causes of forfeiture; and the ruling of the court in admitting the same, subject to objection by the claimant, constitutes the first assignment of error. Throughout the trial, the claimant appears to have assumed, as the theory of the defense to the information, that he was the accused party, and that he was on trial for a criminal offense created and defined by an Act of Congress. Instead of that, the forfeiture claimed in the information is aimed against the distillery, and the real and personal property used in connection with the same, including the real estate used to facilitate the operation of distilling, and which is conducive to that end as the means of ingress or egress, and all personal property of the kind found there, together with the distilled spirits and stills wherever found. Nor is it necessary that the owner of the property should have knowledge that the lessee and distiller was committing fraud on the pub lic revenue, in order that the information of forfeiture should be maintained. If he knowingly suffers and permits his land to be used as a site for a distillery, the law places him on the same footing as if he were the distiller and the owner of the lot where the distillery is located; and, if fraud is shown in such a case, the land an uncommon course in the admiralty, acting under the law of nations, to treat the vessel in which or by which, or by the master or crew thereof, a wrong or offense has been committed, as the offender, without any regard whatsoever to the personal misconduct or responsibility of the owner thereof, the necessity of the case requiring it as the only adequate means of suppressing the offense or wrong, or of insuring an indemnity to the injured party. U. S. v. The Malek Adhel, 2 How., 210. Beyond all doubt, the Act of Congress in question attaches the offense to the distillery, and the real and personal property connected with the same, the words of the Act defining the offense being: that if any such false entry shall be made in said books, or any entry shall be omitted therefrom, with intent to defraud or to conceal from the revenue officers any fact or particular required to be stated and entered in either of said books, or to mislead the revenue officers with reference thereto; or if any distiller shall omit or refuse to produce either of said books, or shall cancel, obliterate or destroy any part of either of said books, or any entry therein, with intent to defraud, or shall permit the same to be done, or such books or either of them be not produced when required by any revenue officer, the distillery, distilling apparatus, and the lot or tract of land on which it stands, and all personal property used in the business, shall be forfeited to the United States. 15 Stat. at L., 133. Nothing can be plainer in legal decision than the proposition that the offense therein defined is attached primarily to the distillery and the real and personal property used in connection with the same, without any regard whatsoever to the personal misconduct or responsibility of the owner, beyond what necessarily arises from the fact that he leased the property to the distiller, and suffered it to be occupied and used by the lessee as a distillery. Suppose that is so; still it is insisted by the claimant that the declaration of the lessee and occupant of the distillery made subsequent to his arrest were not competent evidence in the case; but the court is entirely of a different opinion, as the arrest of the lessee did not to any extent affect or change his relations to the property or to his lessor. If his lease was a subsisting one at the time of his arrest, his relations to the property and the owner of the same continued unaffected by that occurrence, nor is there anything in the authority cited by the claimant which, when properly understood, asserts any different doctrine. Statements made by the master of a ship as to what occurred during the voyage, tending to inculpate the owner in the guilty enterprise of the ship, are not admissible in evidence against the owner, where he is charged with a crime, if the statements were made subsequent to the time when he ceased to be master and the common enterprise had come to an end; but the rule has no application here, as the arrest of the lessee did not abrogate the lease, and, if the prosecution had failed, he might have continued to operate the distillery in spite of the accusation contained in the information. Cases often arise where the property of the owner is forfeited on account of the fraud, neglect or misconduct of those intrusted with its possession, care and custody, even when the owner is otherwise without fault; and Judge Story remarked, in the case last cited, that the doctrine is familiarly applied to cases of smuggling and other misconduct under the revenue laws, as well as to other cases arising under the Embargo and Non-Intercourse Acts of Congress. Controversies of the kind have arisen in our judicial history; and it has always been held in such cases that the acts of the master and crew bind the interest of the owner of the ship, whether he be innocent or guilty, and that in sending the ship to sea under their charge he impliedly subunits to whatever the law de nounces as a forfeiture attached to the ship by means of their unlawful or wanton misconduct. Analogous views were expressed by Marshall, Ch. J., at a much earlier period. U. S. v. The Little Charles, 1 Brock., 347. Objection was there taken to the admissibility of the report and manifest made by the master of the schooner when she arrived at her port of destination, the schooner having been subsequently seized for an alleged violation of the embargo laws. Two Other letters and bills of lading, found by the grounds were assigned in support of the objec- marshal in an open box in the room occupied by tion: (1) That the paper offered was not accom the same party as a private office, were also inpanied by the entry. (2) That the declaration of troduced in evidence, subject to the claimant's the master, if admitted in evidence, would affect objection, which, it appears, were addressed to the owner in a criminal case. Both were over- the operator of the distillery, and that they tended ruled. Reference will only be made to the rea to prove the shipment by the distiller to the firm sons given for the second ruling. from which they came of large quantities of high wines, and that the firm rendered accounts to the shipper of the sales as commission merchants. Neither confessions nor admissions of the master, it was contended, were admissible to prove the guilt of the owner; and the Chief Justice added that, if the case was such as was supposed in argument, the objection would be entitled to great weight. But he remarked that the proceeding was one against the vessel, for an offense committed by the vessel, which is not less an offense, and does not the less subject her to forfeiture because it was committed without the authority and against the will of the owner. It is held, said the Chief Justice, that inanimate matter can commit no offense. But the ship, as a body, is animated and put in action by the crew, who are guided by the master. The vessel acts and speaks by the master; she reports herself by the master. It is, therefore, not unreasonable that the vessel should be affected by this report. Apply that rule to the case before the court, and it follows that the distillery, and the real and personal property used in connection with the same, must be considered as affected by the unlawful doings and omissions of the lessee and occupant of the property as a distillery, subject to the rules and regulations prescribed by Congress. U. S. v. Distillery, 2 Abb. (U. S.), 192. 2. Certain private books, letters and memoranda, found in an open box in a room occupied by the lessee and operator of the distillery as a private office, were also offered in evidence, to the admissibility of which the claimant objected; but, inasmuch as it appears that they were the books, letters and papers of the person in whose office they were found, and that they related in part to the business of the distillery, it requires no argument to show that the objection of the claimant was without merit. Found as the papers were in the office of the distiller, it is too clear for argument that they were properly admitted, unless it be assumed that it was the claimant, and not the distillery and the property connected with the same, who was on trial. 3. Much discussion of the remaining error assigned will not be required, as it presents the same question in principle as that involved in the first assignment of error, which has already been sufficiently considered. None of the material facts are in dispute, nor were they to any considerable extent at the trial. Beyond controversy, the title of the premises and property was in the claimant; and it is equally certain that he leased the same to the lessee for the purposes of a distillery, and with the knowledge that the lessee intended to use the premises to carry on that business, and that he did use the same for that purpose. Fraud is not imputed to the owner of the premises; but the evidence and the verdict of the jury warrant the conclusion that the frauds charged in the information were satisfactorily proved; from which it follows that the decree | policy for several months, legal measures were of condemnation is correct, if it be true, as here- resorted to and a suit commenced against the tofore explained, that it was the property and debtors. The debtors received delay and indulnot the claimant that was put to trial under the gence in the prosecution of this suit, the same pleadings; and we are also of the opinion that having been commenced on the 3d of Novemthe theory adopted by the court below, that, if ber, 1870, and placed in judgment only on the the lessee of the premises and the operator of 12th of January, 1871. Execution was issued the distillery committed the alleged frauds, the on the same day last named, and a levy made Government was entitled to a verdict, even upon the property of the defendants. Yielding though the jury were of the opinion that the again to solicitations, the creditor did not press claimant was ignorant of the fraudulent acts or an immediate sale under the execution, and on omissions of the distiller. the 24th of February, 1871, bankruptcy proceedings were commenced by other creditors. The sale upon the execution was stayed by an injunction in the present suit, which was commenced to set aside the judgment and execution as fraudulent and void. Viewed in that light, the legal conclusion must be that the unlawful acts of the distiller bind the owner of the property, in respect to the management of the same, as much as if they were committed by the owner himself. Power to that effect the law vests in him by virtue of his lease; and, if he abuses his trust, it is a matter to be settled between him and his lessor; but the acts of violation as to the penal consequences to the property are to be considered just the same as if they were the acts of the owner. The Vrouw Judith, 1 C. Rob., 150; U. S. v. Distillery at Spring Valley, 11 Blatchf., 255; U. S. v. The Reindeer, 2 Cliff., 57; U. S.v. 1960 Bags of Coffee, 8 Cranch, 398; Mitchell v. Torup, Parker, 227. Examined in the light of these suggestions, as the case should be, it is clear that there is no error in the record. Judgment affirmed. This injunction was afterwards modified by allowing a sale, and directing the sheriff to hold the proceeds subject to the order of the court. The present action goes upon the theory that the mere non-resistance of a debtor to judicial proceedings against him, when the debt is due and there is no valid defense to it, is the suffering and giving a preference under the Bankrupt Act. This theory is expressly repudiated in the case of Wilson v. Bk., 17 Wall., 473 [84 U. S., XXI., 723]. It is also held in that case that the facts that the debtor does not himself file the petition in bankruptcy under such circumstances, and that the creditor was aware of the insolvency of the debtor, do not avoid the judgment and Cited-99 U. S., 397; 74 N.Y., 525; 30 Am. Rep., 336. execution. In the present case, there is not THE TENTH NATIONAL BANK OF NEW v. RICHARD WARREN AND EDWARD (See S. C., 6,Otto, 539-541.) Preference under Bankrupt Act-when void. proven a single fact or circumstance tending to show a concurrence or aid on the part of the the payment of the debt. The only effort of the debtors in obtaining the judgment or securing debtors was to obtain delay, apparently in the hope of relief from the embarrassments which finally overwhelmed them. The judgment of the Circuit Court must be reversed and that of the District Court, dismissing the bill with costs, affirmed; and it is so ordered. Cited-19 Blatchf., 322. 1. The mere non-resistance of a debtor, to judicial M. WOLF, ELIAS LOWENSTEIN ET AL. proceedings against him, when the debt is due and there is no valid defense to it, is not the suffering and giving a preference under the Bankrupt Act. 2. The facts that the debtor does not himself file the petition in bankruptcy under such circumstances, and that the creditor was aware of the insolvency of the debtor, do not avoid the judgment and execution. [No. 138.] Argued Dec. 14, 1877. Decided Jan. 7, 1878. Piffs. in Err., v. LOUIS STIX ET AL., AS LOUIS STIX & Co. The refusal of a court to set aside a decree in or APPEAL from the Circuit Court of the Unit-bankruptcy against thedant to plead a discharge in York. on was ed States for the Southern District of New rendered, raises no federal question. The case is stated by the court. [No. 777.] Submitted Dec. 17, 1877. Decided Jan. 7, 1878. Messrs. Austen G. Fox and Waldo Hutchins, IN ERROR to the Supreme Court of Tennes for appellees. Mr. Justice Hunt delivered the opinion of the court: The Tenth National Bank of New York had an undisputed debt against the firm of Sanger & Co., of about $10,000. The Bank endeavored to obtain its money by persuasion, but received only fair words in return. After pursuing this see. The case is stated by the court. Mr. Josiah Patterson, for defendant in error. Messrs. Wm. M. Randolph and Fillmore Beall, for plaintiff in error. Mr. Chief Justice Waite delivered the opinion of the court: This was a bill in chancery, filed by Louis Stix & Co. in the Chancery Court of Shelby County, Tennessee, in accordance with the laws and practice of that State, against Marks, Pump & Co. and M. Wolf, to recover a debt due them from Marks, Pump & Co., and to set aside a sale of goods by the latter firm to Wolf, because, as alleged, it was made to defraud creditors. A writ of attachment was sued out upon this bill, and the goods attached in the possession of Wolf. decide that the discharge was inoperative as a release of the obligation involved in the suit, but only that the defense of a discharge in bankruptcy after the decree below could not be set up in the Supreme Court, as no new defense could be made there. Such a defense may be made in Tennessee by bill in chancery after the decree in the Supreme Court, but not by the suggestion of the fact in that court. It was so decided in Anderson v. Reaves, at the January Term, 1877, of the Supreme Court of that State, as is shown by a copy of the opinion printed with the brief filed on behalf of the defendant in error in support of this motion. Thus it appears that even upon this motion no federal question was actually decided, and that, accord By the Code of Tennessee (sec. 3509), the defendants to an attachment suit may replevy the property attached by giving bond, with good security, payable to the plaintiff, in double the amount of the plaintiff's demand, or, at the defendant's option, in double the value of the prop-ing to the law of Tennessee, none was involved. erty attached, conditioned to pay the debt, interest and cost, or the value of the property attached, with interest, as the case may be, in the event he shall be cast in the suit; and in such case (sec. 3514), the court may enter judgment or decree upon the bond, in the event of a recovery by the plaintiff, against the defendant and his sureties, for the penalty of the bond, to be satisfied by the delivery of the property or its value, or payment of the recovery. Wolf replevied the property attached in this We see no reason why, according to the practice in that State, the plaintiffs in error are not still at liberty to enforce the discharge in bankruptcy against the decree of the Supreme Court by bill in chancery. The motion to dismiss for want of jurisdiction is granted. Cited-99 U. S., 6. case, claiming to be the owner, and gave a re- RUSSELL SAGE ET AL., Interveners, Appts., plevin bond with Lowenstein and Helman as his sureties, in which the goods were valued at v. $10,000. In December, 1872, the Chancery THE CENTRAL RAILROAD COMPANY Court decided that there was no fraud in the sale to Wolf; and Marks, Pump & Co. having been discharged in bankruptcy from their debt, the bill was dismissed. From this decree Stix & Co. appealed, March 21, 1873, to the Supreme Court. March 28, 1874, Wolf obtained a discharge in bankruptcy from his debts. April 28. 1877, the Supreme Court reversed the decree of the Chancery Court in the suit of Stix & Co., and entered a decree against Wolf, and Lowen stein and Helman as his sureties in the replevin bond, for $16,200, the value of the goods and interest, and awarded execution thereon. May 3, 1877, Wolf and his sureties petitioned the court to set aside this decree, and permit them to come in and plead in that court the discharge of Wolf; or, if that could not be done, to remand the cause, after reversing the decree below, so that the defense might be made in the Chancery Court; but the Supreme Court being of the opinion that no new defense could be made in that court, and that it was not allowable to set up the defense in bankruptcy by any proceeding there for that purpose, refused the petition and permitted the decree to stand as already entered. From this statement of the case it is apparent that no federal question was actually decided by the court below, and that none was involved in the decision as made. The discharge in bankruptcy was granted more than three years before the action of the Supreme Court which is complained of, and no attempt was made to bring it to the attention of that court until after a decree had been entered in the cause. Upon the face of the record proper, therefore, no federal question could have been decided, because none was raised. But upon the case as made by the subsequent motion to set aside the decree the parties occupy no better position, because the court did not Final OF IOWA. (See S. C., 6 Otto, 712-716.) decree-security on appeal-citation-allowance of appeal-appearance. 1. A decree confirming a sale, if it is final, may be appealed from. 2. The acceptance of security on an appeal, by the court, or a judge or justice, if followed when necessary by the signing of a citation, is, in legal effect, the allowance of an appeal. court during the term at which the decree appealed 3. If the security is given and accepted in open from is rendered, no citation is necessary. Whenever, therefore, security for an appeal is accepted during the term, an appeal is allowed. 4. The power to allow an appeal is not confined to the justice assigned to the particular circuit in which the court that rendered the decree is held. where the appellees have appeared. 5. No question in respect to a citation can arise, [No. 937.] Submitted Dec. 10, 1877. Decided Jan. 7, 1878. APPEAL from the Circuit Court of the Unit ed States for the District of Iowa. On motion to dismiss the appeal and vacate the supersedeas. The case, so far as is material to these motions, is stated in the opinion. For full statement of the case, see 93 U. S., 412, XXIII., 933; 99 U. S., 334, XXV. Messrs. H. B.Turner, B. F. Lee, R. L. Ashhurst, J. C. Bullitt, F. Forbes and C. C. Cole, in support of motions: As has been repeatedly held, questions of supersedeas and bond are considered entirely within the power of the court or judge allowing the appeal. In Black v. Zacharie, 3 How.. 483, and Jerome v. Mc Carter, 21 Wall., 17 (88 U. S., NOTE.-Appearance cures defects in service of procrisdiction of subject-matter. See note to Knox v. ess and its non-service, but does not any want of juSummers, 7 U. S. (3 Cranch), 496. XXII., 515), the court treated the discretion of | S., XVII., 359); French v. Shoemaker, 12 Wall., the judge who allows the appeal as final on such 86 (79 U. S., XX., 270); R. R. Co. v. Soutter, 2 matters, and refused, even when sitting in bank, Wall., 510 (69 U. S., XVII., 900). to modify the amount of supersedeas bonds fixed by the judge allowing the appeal. If the judge allowing the appeal committed an error in refusing a supersedeas altogether, the remedy, and the only remedy, was by mandamus of this court, ordering him to grant a supersedeas. French v. Shoemaker, 12 Wall., 86 (79 U. S.. XX., 270); R. R. Co. v. Wiswall, 23 Wall., 507 (90 U. S., XXIII., 103). The application for an allowance of appeal might originally have been made, it is true, to a judge of the court below, or to a justice of this court, and in that case the judge or justice allowing the appeal would have, under sections 999 and 1000, the right to fix the amount of the security for the supersedeas. The provisions express that the justice or judge signing the citation is to take the security. The provision in section 1007 gives no authority to any other judge or justice than the one allowing the appeal, to take the security. Telegraph Co.v. Eyser, 19 Wall., 427-431 (86 U. S., XXII., 44, 45). The provision as to the powers of the justice of the appellate court, is only that where the writ of error or citation has been duly served within sixty days, the time for giving the security required by law that is already fixed by the judge allowing the appeal may be prolonged beyond sixty days. All the matters contained in the order of Aug. 31, 1877, are merely the execution of the decree of Oct. 22, 1875. As clearly appears by the record, the sale was made by the master, directly in pursuance of the terms of that decree. The purchase was made by the trustee in exact compliance with the decree, and return made accordingly, and the order of confirmation of the sale to the trustee and the direction to the master to convey, are nothing but the carrying out of what was already settled by that decree. As to the other matters in the order of August 31, 1877, it is perfectly clear that there can be be no appeal from them. An appeal can be taken only from final judgment. An appeal may be taken from a decree of foreclosure and sale when the rights of all the parties have been settled, and nothing remains for the court but to make sale and pay out proceeds. The sale in such cases is the execution of the decree by which the rights of the parties are settled and enforced. R. R. Co. v. Soasey, 23 Wall., 405 (90 U. S., XXIII., 136); Whiting v. Bk., 13 Pet.,15; Carr v. Horie, 13 Pet., 460; Stoval v. Banks, 10 Wall., 583 (77 U. S., XIX., 1036). The retaining of the appeal from the decree of October 22, 1875, in this case, Sage v. R. R. Co., 93 U. S., 412 (XXIII., 933), is conclusive that that was a final decree. It is equally conclusive that the present appeal cannot be maintained. Callan v. May, 2 Black,541 (67 U. S., XVII., 281); Boyle v. Zacharie, 6 Pet., 635; Brooks v. Hunt, 17 Johns., 484; Thomas v. Wooldridge, 23 Wall., 283 (90 U. S., XXIII., 135); Moses v. Mayor, 15 Wall., 390 (82 U. S., XXI., 176); R. R. Co. v. Wiswall, 23 Wall.,507 (90 U.S., XXIII., 103); Bronson v. R. R. Co., 2 Black, 524 (67 U. The record conclusively shows that all the matters except those merely formal, included in the appeal from the decree of Aug. 31,1877, are included in the appeal pending from the decree of Oct. 22, 1875. The latter appeal has been held by the court. This is confirmed by the examination of the assignments of error. The case of Wheeler v. Harris, 13 Wall., 51 (80 U. S., XX., 531), shows that the appellants cannot have these two appeals at the same time. Mr. N. A. Cowdrey, in opposition to the motions: For the first time in the history of a case in the circuit court, that court by its decree of August 31, 1877, directs a distribution of a portion of the trust property in its hands for administration. The court treated the fund then as one for distribution, and then fixed some amounts which should be paid prior to others. It then first exercised its judicial authority, not arbitrary or discretionary authority, but judicia authority. In doing so it injured the appellants. McVeigh v. U. S., 11 Wall., 267 (78 U. S., XX., 81); Ex parte Jordan (ante, 123). This court will suspend its own rules to promote or to do justice. U. S. v. Breitling, 20 How., 254 (61 U. S., XV., 902). In that case the promotion of justice was to retain an appeal, supposed to have been deficient in the bill of exceptions. The ample power given to this court in section 701, U. S. R. S., were given that they might have the power to do, and do justice; that is, hear the grievances of parties and determine the same. The order or decree is not only one of confirmation of sale, but it is very much more, as seen by referring to it. It disposes of substantial rights of the appellants, and being aggrieved by the disposition thereof made by the court, they appeal for redress. Hinckley v. R. R. Co. (ante, 166). As to what is a final decree, see Phil. Pr.,76; Forgay v. Conrad, 6 How., 201; R. R. Co. v. Swasey, 23 Wall., 405 (90 U. S., XXIII., 136); Butterfield v. Usher, 91 U. S., 248 (XXIII., 319). The appellants had a perfect right by the Statute Laws of the U. S., sec. 1007, to apply to a justice of this court for a supersedeas at any time: there is no statute requiring them to apply to the circuit court, or, being refused by that court, prohibiting them from applying to each and every justice of this court. "The law favors the vigilant.' " Parties aggrieved by action of circuit courts, may have as many appeals as they have separate grievances, by reason of separate orders or decrees of circuit courts. This court may consolidate the appeals, or hear them all at the same time. If appellants have complied with the law, they are entitled to a supersedeas without regard to the views of the circuit or of this court, as to the merits of the appeal. Goddard v. Ordway (ante, 237). Mr. Chief Justice Waite delivered the opinion of the court: This case was before us at the last Term, upon a motion to dismiss an appeal from a decree |