# Durant v. Essex Company (74 U.S. 107)

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United States Supreme Court
74 U.S. 107
Durant v. Essex Company
APPEAL from the Circuit Court for the District of Massachusetts.
The Constitution vests appellate jurisdiction in the Supreme Court under such regulations as Congress shall make, and Congress, by the act of March 3, 1803, authorizing appeals, provides that 'the said Supreme Court shall be, and hereby is, authorized and required to receive, hear, and determine such appeals.'
With these provisions in force, Durant filed a bill, in October, 1847, against the Essex Company, seeking to hold it liable for certain real estate. The bill was finally 'dismissed.' An appeal was taken to this court, where, after hearing the case, the judges were equally divided in opinion; and in conformity with the practice of the court in such cases it ordered that the decree of the court 'be affirmed with costs.'
The complainant, conceiving that as the judgment in this court was by a bench equally divided, there had been no decision of his case by the court of last resort, filed another bill-the bill in the court below-for the same relief in the same matter as he had filed the one before.
The defendant pleaded that the former suit and decree in this court-which the plea averred were made after testimony was taken on both sides, and the case heard on its merits and argued by counsel-were a bar to the present bill. This was determined by the court below to be so; and the mandate of this court being filed, the complainant moved for leave to discontinue the suit, or that the bill be dismissed without prejudice. But the court refused leave, and dismissed the bill, no words being put in the decree that showed that the dismissal was other than an absolute one. Appeal here accordingly.
The questions which the appellant now sought to raise were:
1. Whether the decree of dismissal simply was a bar to a new suit?
2. What was the effect of an affirmance by an equally divided court?
Mr. Boyce, for the appellant, contended:
1. That the decree in the first suit being simply one of dismissal, did not prevent the filing of a new bill in another court, or even in the same court.
2. That an affirmance by an equally divided court amounted to nothing; that this court, upon appeal, must 'determine such appeal,' and that a decree by a divided court was not a compliance with the act of Congress. It was an abdication of the appellate power, and, in effect, imparted the power to the Circuit Court.
Messrs. Merwin and Storrow, contra, considering the first point made plainly untenable, were proceeding to the second, when they were stopped by the court; Grier, J., referring them to a note of the late Horace Binney Wallace, Esq., of Philadelphia, appended to the case of Krebs v. The Carlisle Bank, as to the effect of an affirmance of judgment by an equally divided court, which he said was 'clear and satisfactory.'
Mr. Justice FIELD delivered the opinion of the court.

## Notes

* ↑ 2 Wallace, Jr., 49. See it, infra, Appendix.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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