19 Feb. 1851. vided for, shall be entitled to receive from the party at whose instance the service shall have been performed, such fee or fees as are or may be allowed for similar services in the states wherein such service may be rendered respectively.

24 Sept. 1789 216. 1 Stat. 82.

Ibid. 26.

4. How testimony may be taken

5. Power of district judges to issue injunctions.

6. Courts to be always open for filing bills, &c. Judges may award process and make orders in vacation.

1. Suits in equity shall not be sustained in either of the courts of the United States, in any case where plain, adequate and complete remedy may be had at law. (a)

2. In all causes brought before either of the courts of the United States to recover the forfeiture annexed to any articles of agreement, covenant, bond (b) or other specialty, where the forfeiture, breach or non-performance shall appear, by the default or confess ment to be given sion of the defendant, or upon demurrer, (c) the court before whom the action is, shall

In suits for for feitures, judg

according to equity.

2 March 1793 5. 1 Stat. 334.

In what cases

writs of ne exit may be issued.

render judgment therein for the plaintiff to recover so much as is due according to equity.(d) And when the sum for which judgment should be rendered is uncertain, the same shall, if either of the parties request it, be assessed by a jury.(e)

3. Writs of ne exeat and of injunction may be granted by any judge of the supreme court (g) in cases where they might be granted by the supreme or a circuit court; but ne writ of ne exeat shall be granted unless a suit in equity be commenced, (h) and satisfac and injunction tory proof shall be made to the court or judge granting the same, that the defendant designs quickly to depart from the United States; nor shall a writ of injunction be granted to stay proceedings in any court of a state; (i) nor shall such writ be granted in any case(k) without reasonable previous notice to the adverse party, or his attorney, of the time and place of moving for the same.(1)

29 April 18022 25. 2 Stat. 166.

may be taken.

4. In all suits in equity it shall be in the discretion of the court, upon the request of either party, to order the testimony of the witnesses therein to be taken by deposi How testimony tions; (m) which depositions shall be taken in conformity to the regulations prescribed by law for the courts of the highest original jurisdiction in equity, in cases of a similar nature in that state in which the court of the United States may be holden: Provided however, That nothing herein contained shall extend to the circuit courts which may he holden in those states in which testimony in chancery is not taken by deposition.(n) 5. The judges of the district courts of the United States shall have as full power to grant writs of injunctions to operate within their respective districts, in all cases which may come before the circuit courts within their respective districts, as is now exercised by any of the judges of the supreme court of the United States, under the same rules, regulations and restrictions as are prescribed by the several acts of congress, establishing the judiciary of the United States, any law to the contrary notwithstanding: Provided,

13 Feb. 1807 2 1. 2 Stat. 418.

Power of district judges to issue injunctions.

(a) This is declaratory merely of the existing law. Boyce's Executors v. Grundy, 3 Pet. 210. Baker v. Biddle, Bald. 394. Bean e. Smith, 2 Mas. 252, New York v. Connecticut, 4 Dall. 5, note 4. Hunt &. Danforth, 2 Curt. C. C. 592. If there is a plain, adequate and complete remedy at common law, the defendant has a constitutional right of trial by jury, and a suit cannot be sustained in equity. Baker v. Biddle. Bald. 394. Andrews v. Solomon. Pet. C. C. 356. United States v. Myers, 2 Brock. 516. Pierpont v. Fowle, 2 W. & M. 23. But it is not enough that there is a remedy at law; it must be plain and adequate, or, in other words, as prac tical and efficient to the ends of justice and its prompt administration. as the remedy in equity. Boyce's Executors v. Grundy, 3 Pet. 210. United States v. Howland, 4 Wh, 108. Bean v. Smith, 2 Mas. 252. Baker v. Biddle, Bald. 408. Osborn v. United States Bank. 9 Wh. 841-2. Harrison v. Rowan, 4 W. C. C. 205. So, it is no objection to the juris liction, that there is a remedy under the local law; for the equity jurisdiction of the federal courts is the same in all the states, and is not affected by the existence or nonexistence of an equity jurisdiction in the state tribunals. It is the same in nature and extent as the equity jurisdiction of Eng. land, from whence it is derived. Livingston e. Story, 9 Pet. 632. 8. c., 13 Ibid. 359. Poultney v. City of Lafayette, 12 Ibid. 472. Ex parte Whitney, 13 Ibid. 404. Gains v. Relf, 15 Ibid. 9. Gains e. Chew, 2 How. 619. Gordon v. Hobart, 2 Sumn. 401. Mayer v. Foulkrod, 4 W. C. C. 354. Fletcher v. Morey, 2 Story, 555.

(6) This does not apply to the forfeiture of a bond given by the owners of a private armed vessel under the prize act. Greeley v. United States, 8 Wh. 257.

(e) This section does not apply to a judgment on a verdict. or case stated, but only to judgments upon demurrer, or by default, or confession. Farrar v. United States, 5 Pet. 373. Ives v. Merchants' Bank of Boston, 12 How. 159.

(d) See McGill v. Bank of the United States, 12 Wh. 511. e) Where the sum is uncertain, and a jury is requested by either party, the court may either direct a writ of inquiry to issue, or may swear a jury immediately to ascertain the sum justly due to the plaintiff If the sum for which judgment should be ren

dered be not uncertain, the court is to ascertain it if uncertain, and a jury be not requested, still the court may, in its discretion, ascertain it, or submit the matter to a jury. United States v. White, 4 W. C. C. 416.

(g) The district judges have no authority to issue writs of ne exeat. Gernon v. Boecaline, 2 W. C. C. 130.

(1) The affidavit to found a writ of ne exeat, should be positive to a debt, or to the belief of the plaintiff, that a certain balance is due. Gernou v. Boecaline, 2 W. C. C. 130.

(i) See Diggs v. Wolcott, 4 Cr. 179. Peck v. Jenness, 7 How. 625. This does not restrain the court from granting an injure tion, enjoining a sheriff from levying on the property of A. in a process against B. Cropper v. Coburn, 2 Curt. C. C. 45.

(4) This prohibition extends to injunctions granted by the supreme court, or the circuit court, as well as to those that may be granted by a single judge. New York v. Connecticut, 4 Dall. 2. Wynn v. Wilson. Hemp. 699.

(7) Injunctions cannot be granted in the courts of the United States without notice, and hence all of them here are special Perry v. Parker, 1 W. & M. 280. But the notice may be waived by an appearance. Marsh v. Bennett, 5 McLean, 117. The de fendant will be heard in opposition to the motion, and he is pr mitted to file his answer. Wilson v. Stolley, 4 Ibid. 273. See Love v. Fendall's Trustees, 1 Cr. C. C. 34.

(n) The net 24 September 1789 30. 1 Stat. 88. provides that the mode of proof by oral testimony and examination of witnesses, in open court, shall be the same in all the courts of the United States, as well in the trial of causes in equity, and of admiralty and maritime jurisdiction, as of actions at common law." This gives to the parties a right, in equity causes, to examine and cross examine the witnesses ore tenus; and this right is not taken away by the act in the text, nor by the 67th rule of equity prac tice, nor in any other manner. Sickles v. Gloucester Co., 13 Leg. Int. 292.

(n) In appeals to the supreme court, parol testimony which is heard at the trial in the court below, ought to appear in the record. Conn v. Penn, 5 Wh. 424.

That the same shall not, unless so ordered by the circuit court, (a) continue longer than 13 Feb. 1807. to the circuit court next ensuing, nor shall an injunction be issued by a district judge, in any case where a party has had a reasonable time to apply to the circuit court for the writ.

5 Stat. 517.

6. The district courts as courts of admiralty, and the circuit courts as courts of equity, 23 Aug. 1842 § 5. shall be deemed always open for the purpose of filing libels, bills, petitions, answers, pleas and other pleadings, for issuing and returning mesne and final process and com- Courts to be always open for missions, and for making and directing all interlocutory motions, orders, rules and other fling bills, &c. proceedings whatever, preparatory to the hearing of all causes pending therein upon their merits. And it shall be competent for any judge of the court, upon reasonable Judges may notice to the parties, in the clerk's office or at chambers, and in vacation as well as in and make orders term, to make and direct, and award all such process, commissions and interlocutory in vacation. orders, rules, and other proceedings, whenever the same are not grantable of course according to the rules and practice of the court.(b)

Errors and Appeals.

1. Appeals in admiralty, from district to circuit courts.

2. Error from circuit to district courts. From supreme to circuit courts. Citation. No reversal on plea in abatement. Limitation. Bail in error.

3. When a supersedeas. Damages and costs.

4. Judgment on reversal. Supreme court to issue mandate. 5. Error to the state courts. Citation. Judgment and execution. What errors may be assigned.

6. Clerks of circuit courts may issue writs of error.

award process

7. Security for costs, where the writ is no supersedeas. 8. Where circuit judges are divided in opinion, case to be cer tified to the supreme court. Decision to be remitted. Case may proceed. No punishment to be inflicted where the court is divided. 9. Appeals from district courts. From circuit courts in equity and admiralty. Proceedings thereon.

10. Error from supreme to circuit courts, in cases from the district courts. 11. Error in revenue cases.

1 Stat. 83.

1. From final decrees (c) in a district court, in causes of admiralty and maritime 24 Sept. 1789 2 21. jurisdiction, (d) where the matter in dispute exceeds the sum or value of three hundred

trict courts.

dollars, (e) exclusive of costs, an appeal (g) shall be allowed to the next circuit court,(h) Appeals from dis to be held in such district.(i)

cuit to district

2. Final decrees and judgments (k) in civil actions (1) in a district court, where the Ibid. 22. matter in dispute exceeds the sum or value of fifty dollars, (m) exclusive of costs, may be Error from cirre-examined, and reversed or affirmed in a circuit court, holden in the same district, upon courts. a writ of error;(n) whereto shall be annexed and returned therewith at the day and place therein mentioned, an authenticated transcript of the record, an assignment of errors, and prayer for reversal, with a citation to the adverse party, signed by the judge of such district court, or a justice of the supreme court, the adverse party having at least twenty days' notice. And upon a like process, (o) may final judgments (p) and de

(a) The denial of successive motions to dissolve the injunction may be considered as equivalent to an order for renewing it. Parker v. Judges of the Circuit Court of Maryland, 12 Wh. 561. See United States v. City of Chicago, 7 How. 185.

(b) The acts 8 May 1792, 1 Stat. 276; 19 May 1828, 4 Stat. 278; and 1 August 1842, 5 Stat. 499; provide that the forms of process except their style, and the forms and modes of proceeding in equity causes, shall be according to the principles, rules and usages which belong to courts of equity, as contradistinguished from courts of common law; except so far as may have been otherwise provided for by acts of congress, and subject to such alterations and additions as the said courts shall respectively, in their discretion, deem expedient; and to such regulations as the supreme court shall think proper, from time to time, by rules, to prescribe. These acts have been generally understood to adopt the principles, rules and usages of the courts of chancery of England as established at the revolution. Vattier v. Hinde, 7 Pet. 274. The chancery jurisdiction is the same in all the states, and the rule of decision is the same in all: the remedies in equity are to be administered, not according to the state practice, but according to the practice of courts of equity in the parent country. Boyle . Zacharie, 6 Pet. 658. Neves v. Scott, 13 How. 268. Robinson v. Campbell, 3 Wh. 221-2. Mayer v. Foulk rod, 4 W. C. C. 355. And see 6 of the act in the text, whereby authority is given to the supreme court to prescribe and regulate, from time to time, the forms and modes of proceeding, &c., in suits at common law, and in equity, &c. Under this act the supreme court at January Term 1842, promulgated a set of rules of practice for the courts of equity of the United States.

(e) A party may appeal from an interlocutory decree, having the effect of a final decree; or he may, at his election, wait until the final decree is actually entered, and then appeal. Steamboat New England, 3 Sumn. 495. Thus, an appeal lies from a decree of the district court, refusing an order for the sale of a vessel, on an application by one of two part owners, who have an equal interest. Davis v. The Seneca, Gilp. 34. If a final decree be not appealed from, no appeal lies upon any subsequent proceedings. The Brig Hollen, 1 Mas. 431.

(d) The act of 1803, infra, 9, extends the right of appeal to all final judgments and decrees. But this act has made no alteration in the law of 1789. as it respects appeals to the circuit court, except in reducing the sum or matter in controversy from $300 to $50, on which such appeals shall be allowed. United States v. Nourse, 6 Pet. 496. Appeals from the district to the circuit courts are limited to cases of adiniralty and maritime jurisdiction; all other cases are removed by writ of error. United Statesv, Haynes, 2 McLean, 155. United States v. Wonson, 1 Gall. 5.

(e) Altered to fifty dollars, infra, 9.

(g) An appeal from a decree of the district court, in admiralty, it is said, must be taken in open court, before the adjournment sine die, unless a different period be prescribed by the court. Norton r. Rich, 3 Mas. 443. But see Hudgins v. Kemp, 18 How. 537. On an appeal to the circuit court, in admiralty, the whole decree of the district court is brought up, although only part of it is appealed from. The Roarer, 1 Blatch. 1. An appeal may be sustained in part, and dismissed in part. Westcot v. Bradford, 4 W. C. C. 493.

(h) An appeal from the district court is properly entered, at the term of the circuit court, begun next after the entry of the decree in the district court, although the term of the district court, during which the decree was entered. had not been ended when the term of the circuit court was begun. United States v. Certain Hogsheads of Molasses, 1 Curt. C. C. 276. If an appeal be not taken to the term of the circuit court, held next after the making of the decree, the right is lost. United States v. The Glamorgan, 2 Ibid. 236.

(i) By 4 of this act, "no district judge shall give a vote in any case of appeal or error from his own decision; but may assign the reasons of such his decision.”

(k) A circuit court has no authority to issue a certiorari, or other compulsory process, to the district court, for the removal of a cause from that jurisdiction, before a final judgment or decree is pronounced. Patterson v. United States, 2 Wh. 221. (1) See supra, note (d).

(m) See Postmaster-General v. Cross, 4 W. C. C. 326. (n) A writ of error lies upon a judgment on a case stated. United States v. Eliason, 16 Pet. 291. But not upon a judgment on an issue of nul tiel record; for that is an issue of fact and not of law. United States v. Cook, 2 Mas. 22. Nor upon a judgment on a writ of error coram vobis. Pickett's Heirs v. Legerwood, 7 Pet. 144. And in general, matters of practice do not constituts subjects upon which errors can be assigned. Parsons v. Bedford, 3 Ibid. 433, 445.

(0) That is, by writ of error; but since the act of 1803. infra, 9, cases of equity and admiralty jurisdiction are removable only by appeal. The San Pedro, 2 Wh. 132. Conn v. Penn, 5 Ibid. 425. McCollum v. Eager, 2 How. 61. Saltmarsh v. Tuthill, 12 Ibid. 387. All suits brought to settle legal rights, which are not of equity or admiralty jurisdiction, whatever may be their peculiar forms under the state laws, are deemed cases at law, and are removable by writ of error. Parish v. Ellis, 16 Pet. 451.

(p) A final judgment is one which determines the particular cause; it need not finally determine the right. Weston v. City Council of Charleston, 2 Pet. 449, 464. Holmes v. Jennison, 14

24 Sept. 1789.

From supreme to circuit courts.

Citation.

No reversal on plea in abatement.

Limitation.

Bail in error.

Ibid. ? 23.

crees (a) in civil actions, and suits in equity in a circuit court, brought there by original process, or removed there from courts of the several states, or removed there by appeal (b) from a district court where the matter in dispute exceeds the sum or value of two thousand dollars, (c) exclusive of costs, be re-examined and reversed or affirmed in the supreme court, (d) the citation being in such case signed by a judge of such circuit court, or justice of the supreme court, (e) and the adverse party having at least thirty days' notice.(g) But there shall be no reversal, in either court, on such writ of error, for error in ruling any plea in abatement, other than a plea to the jurisdiction of the court, or such plea to a petition or bill in equity, as is in the nature of a demurrer, or for any error in fact. And writs of error shall not be brought but within five years (h) after rendering or passing the judgment or decree complained of, or in case the person entitled to such writ of error be an infant, feme covert, non compos mentis, or imprisoned, then within five years as aforesaid, exclusive of the time of such disability. And every justice or judge signing a citation on any writ of error as aforesaid, shall take good and sufficient security, (i) that the plaintiff in error shall prosecute his writ to effect, and answer all damages and costs if he fail to make his plea good. (k)

3. A writ of error as aforesaid shall be a supersedeas and stay execution, in cases only (?)

Ibid. 540. No writ of error lies to remove a judgment of nonsuit. Evans v. Phillips, 4 Wh. 73. Nor upon a decision overruling a motion to quash an attachment. Toland v. Sprague. 12 Pet. 300. Nor upon the refusal of a motion to quash an execution. Evans v. Gee, 14 Ibid. 1. Nor upon a decree, under the practice in Pennsylvania, distributing the proceeds of a marshal's sale. Bayard v. Lombard, 9 How. 530. The writ of error, however, need not purport on its face, to be issued on a final judgment. Buel v. Van Ness. 8 Wh. 312.

(a) A final decree, in equity, is one which finally decides and disposes of the whole merits of the cause, and reserves no questions or directions for the future judgment of the court; there fore, no appeal lies from a decree granting an injunction. Barnard v. Gibson, 7 How. 650. Or dissolving an injunction. Young v. Grundy, 6 Cr. 51. Hiriart v. Ballon, 9 Pet. 156. Verden . Coleman, 18 How. 86. Or refusing to dissolve an injunction. Gibbons v. Ogden, 6 Wh. 448. Or from one making an injunction perpetual, and leaving some matters of account open for further consideration, upon which the parties are to take further proof. Brown v. Swann, 9 Pet. 1. Or from a decree dismissing a crossbill. Ayres v. Carver, 17 How. 595. Or from one sustaining a demurrer for multifariousness, and defects of form. De Armas's Heirs v. United States, 6 Ibid. 103. A decree awarding a new trial at law, in an action which the suit in equity is brought to restrain, is but interlocutory. Lea v. Kelly, 15 Pet. 213. And so is a decree that money shall be paid into court, or that property shall be delivered to a receiver, or be held in trust to be delivered to a new trustee. Forgay v. Conrad, 6 How. 201. And where the court below decreed, that the complainants were entitled to two sevenths of certain property, and referred it to a master to take and report an account of the property, and reserved all other matters in controversy until the coming in of the report, it was held to be an interlocutory decree. Perkins e. Fourniquet, Ibid. 200. And see Craighead v. Wilson, 18 Ibid. 199. Beebe v. Russell, 19 Ibid. 283. Farrelly e. Woodfolk, Ibid. 288. So, no appeal lies from a decision upon a question of practice addressed to the discretion of the court: as upon a refusal to open a decree. Wylie v. Cox. 14 Ibid. 1. Brockett v. Brockett. 2 Ibid. 238.

(b) Extended, infra, 10, to cases removed from the district courts by writ of error. If the decree of the district court was not a final one, the circuit court, to which it was carried by appeal, had no power to act upon the case, and the supreme court cannot entertain jurisdiction. Mordecai v. Lindsay, 19 How. 199.

(c) The thing in controversy must, in order to give jurisdiction to the supreme court, be capable of pecuniary estimation. Ritchie v. Mauro, 2 Pet. 243. Barry v. Mercein, 5 How. 103. And this clause excludes criminal cases, which can only be re-examined on a certificate of division between the judges of the circuit court under the act of 1802, infra, 8. United States v. More, 3 Cr. 159. Ex parte Kearney, 7 Wh. 38, 42. The amount actually in dispute between the parties is the criterion of the jurisdiction. Grant v. McKee, 1 Pet. 248. Bank of Alexandria v. Hooff. 7 Ibid. 168. Gruner v. United States, 11 How. 163. And this has reference to the date of the judgment or decree in the court below. Bank of the United States r. Daniel, 12 Pet. 52. Where the plaintiff sues for money, and claims in his pleadings a larger sum than $2000, and obtains a judgment for a smaller amount, the sum for which judgment is rendered is the only matter in controversy, when the defendant brings the writ of error. But if the plaintiff brings the writ of error, upon the ground that he is entitled to more than the judgment was rendered for, then his averment in his declaration shows the amount he claimed; and as that claim is the matter for which he brings suit, he is entitled to the writ of error, if that clain appears to be large enough to give jurisdiction to the court. Bennett v. Butterworth, 8 How. 129. Knapp v. Banks, 2 Ibid. 73. Gordon v. Ogden, 3 Pet. 33. Winston v. United States, 3 How. 771. United States v. McDowell, 4 Cr. 316. Smith v. Honey, 3 Pet. 469. Scott e. Lunt, 6 Ibid. 349. The same rule applies to actions of trover and trespass. Cooke v. Woodrow, 5 Cr. 13. Hulscamp v. Teel. 2 Dall. 358. But actions of replevin stand upon different principles. The damages are not the prinelpal subject in dispute. If the replevin be for goods distrained for rent, the amount for which avowry is made, is the real matter in dispute; but if the writ be issued as a means of trying the title to property, the value of the article replevied is the matter in dispute. Peyton v. Robertson. 9 Wh. 527. Bennett v. Butterworth, 8 How. 124. Gorman v. Lenox's Executors, 15 Pet. 115. Where the nature of the case does not require the value of the thing demanded to be stated in the declaration, it is the practice,

both of the supreme court and of the circuit courts, to allow the value to be given in evidence. Ex parte Bradstreet, 7 Pet. 624. Williamson v. Kincaid, 4 Dall. 20. Ilagan e. Foison, 10 Pet. 100. United States v. Brig Union, 4 Cr. 216. But in such cases the onus probandi is upon the party seeking to obtain a revision of the case, to establish the jurisdiction. Ilagan v. Foison, 10 Pet. 160. Rush v. Parker, 5 Cr. 287.

(d) Upon a writ of error to a circuit court, the transcript of the record of all the proceedings in the case is brought before the supreme court, and is open to its inspection and revision; and therefore: when a plea to the jurisdiction, in abatement, is overruled by the court upon demurrer, and the defendant pleads in bar, and upon these pleas the final judgment of the court is in his favor-if the plaintiff brings a writ of error, the judgment of the court upon the plea in abatement is before this court, although it was in favor of the plaintiff-and if the court erred in overruling it, the judgment must be reversed, and a mandate issued to the circuit court to dismiss the case for want of jurisdiction. Dred Scott v. Sandford, 19 How. 393.

(e) If the citation be signed by the clerk only, the writ of error will be dismissed. United States v. Hodge, 3 How. 534. Villabolos v. United States, 6 Ibid. 81. And so also, if the transcript of the record be not filed and the case docketed, at the term next succeeding the appeal. The Virginia v. West, 19 How. 182. (g) The citation must be served at least thirty days before the return day of the writ of error. Yeaton v. Lenox, 7 Pet. 220. If it be not issued and served, the writ of error will be dismissed. Bailiff e. Tipping, 2 Cr. 406. Hogan v. Ross, 11 How. 204. And it should accompany the record, with affidavit of service. Lloyd r. Alexander, 1 Cr. 365. Worcester e. Georgia, 6 Pet. 533. It need not be under seal, for it is simply a notice to the opposite party that the record is transferred into another court. Cohens . Vir ginia, 6 Wh. 411. Worcester v. Georgia, 6 Pet. 533. And any informality in it will be cured by an acceptance of service. Peale s Phipps. 8 How. 256. McDonogh v. Millaudon, 3 Ibid. 698, Buckingham e. McLean, 13 Ibid. 150. Where an appeal is made in open court, during the term at which the decree is passed, no citation is necessary to the opposite party; for he is presumed to be in court, and therefore to have notice; but when the appeal is taken out of court, the citation is necessary to give him notice. Hudgins v. Kemp, 18 How. 537. Reilly e. Lamar, 2 Cr. 344. Yes ton e. Lenox, 7 Pet. 220. The San Pedro, 2 Wh. 142.

(h) A writ of error is not brought until filed in the court to which it is addressed. and whose record is to be removed by it; and, therefore, though the writ be tested within five years, if it be not filed in the court which rendered judgment until after the expiration of that period, it is barred. Brooks v. Norris, 11 How. 204. If, however, the court allowing an appeal, accept the security to prosecute, &c., after the expiration of the time allowed by law for an appeal. it has relation back to the time of the allowance of the appeal. The Dos Hermanos, 10 Wh. 306. This limitation does not extend to writs of error coram vobis. Strode v. The Stafford Justices, 1 Brock. 162.

(1) An omission to take the requisite security does not avoid the writ of error; but if any party be prejudiced by the omission the supreme court will grant him summary relief, by imposing such terms on the other party as, under all the circumstances, may be legal and proper. Martin v. Hunter's Lessee, 1 Wh. 361. And see Catlett v. Brodie, 9 Ibid. 553. Statford v. The Union Bank, 16 How. 135.

(4) The bond must be sufficient to secure the whole judgment in case it should be affirmed, if the writ of error operate as a super. sedcas. Catlett v. Brodie, 9 Wh. 553. Stafford e. The Union Bank, 16 How. 135. See infra, 7, as to writs of error that do not operate as a supersedeas.

(1) The supreme court will not quash an execution, issued by the court to enforce its decree, pending the writ of error, if the writ of error be not a supersedeas as to the decree. Wallen & Williams, 7 Cr. 278. And if, in an action at law, instead of a wit of error, an appeal be taken, which is no supersedeas; a writ of error, subsequently sued out, more than ten days from the ren-tition of the judgment, cannot so operate; and no court of the United States has any equitable power to correct the mistake. and set aside an execution in such a case. Saltmarshe. Tuthill, 12 How. 387. Hogan v. Ross, 11 Ibid. 294. If, however, an execu tion has been issued by the circuit court, in a case removed by writ of error, where the plaintiff in error is entitled to a sapeñ sedeas, the supreme court will direct such writ to issue. Stockton v. Bishop, 2 Ibid. 74.

When a super

where the writ of error is served, (a) by a copy thereof being lodged for the adverse 24 Sept. 1789. party, in the clerk's office where the record remains, within ten days, Sundays exclusive, after rendering the judgment or passing the decree complained of.(b) Until sedeas. the expiration of which term of ten days, executions shall not issue in any case where a writ of error may be a supersedeas; and where, upon such writ of error, the supreme Damages and or a circuit court shall affirm a judgment or decree, they shall adjudge or decree to the costs. respondent in error, just damages for his delay, (c) and single or double costs at their discretion.

4. When a judgment or decree shall be reversed in a circuit court, such court shall pro- Ibid. 2 24. ceed to render such judgment or pass such decree as the district court should have rendered Judgment on re or passed; (d) and the supreme court shall do the same on reversals therein, (e) except where versal. the reversal is in favor of the plaintiff, or petitioner in the original suit, and the damages to be assessed, or matter to be decreed, are uncertain, in which case they shall remand the cause for a final decision. And the supreme court shall not issue execution in causes Supreme court to that are removed before them by writs of error, but shall send a special mandate to the issue mandate. circuit court to award execution thereupon.(g)

5. A final judgment or decree (h) in any suit,(¿) in the highest court of law or equity Thid. 25. of a state in which a decision in the suit could be had,(k) where is drawn in question (1) Error to the state the validity of a treaty(m) or statute of,(n) or an authority exercised under the United courts. States, (o) and the decision is against their validity; (p) or where is drawn in question the validity of a statute of, or an authority exercised under any state, on the ground of their being repugnant to the constitution, treaties or laws of the United States, (q) and the decision is in favor of such their validity; (r) or where is drawn in question the con

(a) It must be so served before the return day. Wood v. Lide, 4 Cr. 180. (b) A writ of error is not a supersedeas unless served within ten days after the rendition of the judgment, although the parties have agreed to a stay of execution for two months, and the writ of error be served before the expiration of that time. Thompson r. Vess, 1 Cr. C. C. 108. And à second writ of error, sued out more than ten days after the entry of judgment, cannot so operate. Hogan v. Ross, 11 How. 294. And see Moore v. Dunlop, 1 Cr. C. C. 180. Ex parte Ben. Ibid. 532. United States v. Columbian Insurance Co., 2 Ibid. 266.

(c) If no damages are awarded, it is equivalent to a denial of them. Boyce's Executors v. Grundy, 9 Pet. 275. An increased amount of damages can only be awarded on the prayer of the Jibellaut, not on that of the appellee. The Peytona, 2 Curt. C. C.

27.

(d) It seems, that a venire de noro may be awarded triable in the circuit court. United States v. Sawyer, 1 Gall. 87. 101.

(e) If a judgment or decree is reversed, except for want of juris diction, the plaintiff in error or appellant recovers costs, in the supreme court. Bradstreet v. Potter, 16 Pet. 317. Strader v. Graham, 18 How. 602.

(a) The inferior court is bound by the decree as the law of the case, and must carry it into execution, according to the mandate. They cannot vary it, or examine it for any other purpose than execution; or give any other or further relief; or review it upon any matter decided on appeal for error apparent; or intermeddle with it, further than to settle so much as has been remanded. Sibbald v. United States, 12 Pet. 491. See West v. Brashear, 14 Ibid. 51. If it do not conform to the decree, and provide for its entire and correct execution, a new mandate will be issued, on petition, at a subsequent term. Sibbald v. United States, 12 Ibid. 488. If not obeyed, the supreme court may issue a mandamus, or such other writ as may be necessary to enforce their jurisdiction. Ibid. 492-3.

() As to what is a final judgment or decree, see ante. 257, note p, and 258, note a. A writ of error lies in such case, although the judgment of an inferior state court, against a title claimed under an act of congress, is affirmed by a divided court above. Lessieur v. Price, 12 How. 59. And error lies in cases under this section, with out reference to the amount in controversy. Buel v. Van Ness, 8 Wh. 312. Or to the citizenship of the parties. Cohens v. Virginia, 6 Ibid. 264. The constitutionality of this section has been denied by the courts of Virginia, Hunter v. Martin, 4 Munf. 1; of Georgia, Padelford v. City of Savannah, 14 Geo. 440; of Pennsylvania, Respublica v. Cobbet, 3 Dall. 467; of Ohio, Stunt v. Steamboat Ohio, 4 Am. L. R. 49; and of California. Johnson v. Gordon, 4 Cal. 368; but it has been fully sustained by the supreme court of the United States, which, as a court of last resort, must necessarily have power to decide as to its own jurisdiction. Martin v. Hunter's Lessee, 1 Wh. 304. Cohens v. Virginia, 6 Ibid. 264. The writ of error need not state the judgment to be a final one. Buel v. Van Ness, 8 Wh. 312.

(i) This term is a very comprehensive one, and is understood to apply to any proceeding in a court of justice, by which an individual pursues that remedy which the law affords him. The modes of proceeding may be various, but if a right is litigated between the parties in a court of justice, the proceeding by which the decision of the court is sought is a suit. Weston v. City Council of Charleston, 2 Pet. 464. It is not limited to civil suits, but embraces criminal prosecutions. Worcester v. Georgia, 6 Ibid. 567. As to whether a habeas corpus is such a suit, see Holmes v. Jennison. 14 Ibid. 540.

(k) The judgment to be examined must be that of the highest court of the state having cognisance of the case, but the writ may be directed to any court which has the custody of the record, though not the court in which the judgment was rendered. Gel

ston v. Hoyt, 3 Wh. 246. Webster v. Reid, 11 How. 437. The writ of error need not purport upon its face to be directed to the highest court of the state. Buel v. Van Ness, 8 Wh. 312.

(7) It must appear on the record that some one of the questions stated in this section did arise in the state court, and that the question was decided by the state court: it is sufficient if it appear by clear and necessary intendment from the record, that the question must have been raised and decided; it need not appear in terms. But it is not sufficient that a question might have arisen or been applicable; it must appear that it did arise, and was applied. Crowell v. Randell, 10 Pet. 368. Owings v. Norwood's Lessee, 5 Cr. 344. Martin v. Hunter's Lessee, 1 Wh. 304. 355. Ingles . Coolidge, 2 Ibid. 363. Miller v. Nicholls, 4 Ibid. 311, 315. Williams v. Norris, 12 Ibid. 117, 124. Hickie v. Starke, 1 Pet. 98. Wilson v. Blackbird Creek Marsh Co., 2 Ibid. 245, 250. Satterlee v. Matthewson. Ibid. 380, 413. Harris v. Dennie, 3 Ibid. 292. Fisher v. Cockerell, 5 Ibid. 256. New Orleans v. De Armas, 9 Ibid. 234. Keene v. Clark. 10 Ibid. 291. McKinney v. Carroll, 12 Ibid. 66. Beaston v. Farmers' Bank of Delaware, Ibid. 102. Choteau r. Marguerite, Ibid. 507. Reed's Lessee v. Marsh, 13 Ibid. 153. Holmes v. Jennison, 14 Ibid. 540. Coons v. Gallagher, 15 Ibid. 18. Scott v. Jones, 5 How. 343. Kennedy's Executors v. Hunt's Lessee. 7 Ibid. 586. Smith v. Hunter, Ibid. 738. Doe r. Eslava, 9 Ibid. 421. Williams v. Oliver, 12 Ibid. 111. Grand Gulf Railroad and Banking Co. v. Marshall, Ibid. 165. Lawler v. Walker, 14 Ibid. 149. Colcote v. Stanton, 18 Ibid. 243. Maxwell v. Newbold, Ibid. 511.

(m) This embraces treaties with the Indian tribes. Worcester v. Georgia. 6 Pet. 515. Henderson v. Tennessee, 10 How. 311. It is, however, limited by the constitution, and must be construed so as to be confined within these limits. It is, therefore, necessary in order to give jurisdiction to the supreme court, that the party should have a right growing out of the treaty. Owings v. Norwood's Lessee. 5 Cr. 344. New Orleans v. De Armas, 9 Pet. 223. Gille. Oliver's Executors, 11 How, 529. Williams v. Oliver, 12 Ibid. 111. The setting up of an outstanding title alleged to have been derived under a treaty, to defeat an action of ejectment, is not sufficient. Henderson v. Tennessee, 10 Ibid. 311.

(n) This applies to a case where both parties claim under the same act of congress. Buel v. Van Ness, 8 Wh. 312. Ross . Barlaud. 1 Pet. 655. Or under different acts. Choteau r. Eckhart, 2 How. 344. Delaurier v. Emison, 15 Ibid. 525. This clause does not extend to the decision of a state court against the validity of a territorial law. Miners' Bank v. Iowa, 12 How. 1. If a state court refuses to permit a cause to be removed to the circuit court under 12 of the judiciary act, and proceeds to final judgment, it may be reviewed under this section. Kanouse v. Martin, 14 How. 24. s. c., 15 Ibid. 198.

(6) See Gelston v. Hoyt. 3 Wh. 246. Searight v. Stokes, 3 How. 151. Udell v. Davidson, 7 Ibid. 769. Neilson v. Lagow, Ibid. 772. Achison v. Huddleson, 12 Ibid. 293. Fisher's Lessee v. Cockerell, 5 Pet. 248. Crowell v. Randell, 10 Ibid. 368. Matheson v. Branch Bank of Mobile, 7 How. 260. Menard v. Aspasia, 5 Pet. 505. Stra der v. Graham, 10 How. 82.

(p) A decision by a state court in favor of a right claimed under an act of congress, does not entitle the losing party to a writ of error. Linton v. Stanton, 12 How. 423. Gordon v. Caldeleugh, 3 Cr. 268. McDonogh v. Millaudon, 3 How. 693. Fulton v. McAffee, 16 Pet. 149. Burke v. Gaines, 19 How. 388.

(4) The supreme court cannot declare an act of a state legisla ture void, because it conflicts with the constitution of the state. Jackson v. Lamphire, 3 Pet. 280. Watson v. Mercer, 8 Ibid. 88. (2) The court has no jurisdiction if the decision of the state court be against the validity of the state law, drawn in question as repugnant to the constitution of the United States. Walker v. Taylor. 5 How. 64. Commonwealth Bank of Kentucky v. Griffith, 14 Pet. 56.

Citation.

24 Sept. 1789. struction of any clause of the constitution, or of a treaty, or statute of, or commission held under the United States, (a) and the decision is against the title, right, privilege or exemption specially set up or claimed by either party, (b) under such clause of the said constitution, treaty, statute or commission; may be re-examined and reversed or affirmed in the supreme court of the United States upon a writ of error, (c) the citation being signed by the chief justice, or judge or chancellor of the court rendering or passing the judgment or decree complained of, or by a justice of the supreme court of the United States, in the same manner and under the same regulations, and the writ shal' have the same effect, as if the judgment or decree complained of had been rendered or passed in a circuit court; and the proceeding upon the reversal shall also be the same except that the supreme court, instead of remanding the cause for a final decision, as before provided, may at their discretion, if the cause shall have been once remanded before, proceed to a What errors may final decision of the same, and award execution. But no other error shall be assigned he assigned. or regarded as a ground of reversal in any such case as aforesaid, than such as appears on the face of the record, and immediately respects the before-mentioned questions of validity or construction of the said constitution, treaties, statutes, commissions or authorities in dispute. (d)

Judgment and execution.

8 May 1792 3 9. 1 Stat. 278.

courts to issue

writs of error.

6. It shall be the duty of the clerk of the supreme court of the United States, forthwith to transmit to the clerks of the several circuit courts the form of a writ of error, to Clerks of circuit be approved by any two of the judges of the supreme court; and it shall be lawful for the clerks of the said circuit courts to issue writs of error agreeably to such forms, as nearly as the case may admit, under the seal of the said circuit courts, returnable to the supreme court, in the same manner as the clerk of the supreme court may issue such writs, in pursuance of the act, entitled An act to establish the judicial courts of the United States."

12 Dec. 1794

1 Stat. 404.

1.

7. The security to be required and taken on the signing of a citation, on any writ of error which shall not be a supersedeas and stay execution, shall be only to such an Security for costs amount as, in the opinion of the justice or judge taking the same, shall be sufficient to answer all such costs as, upon an affirmance of the judgment or decree, may be adjudged or decreed to the respondent in error.

where the writ is no supersedeas.

29 April 1802 2 6. 2 Stat. 159.

On division in opinion, case to b certified to supreme court.

mitted.

8. Whenever any question (e) shall occur before a circuit court, (g) upon which the opinions of the judges shall be opposed, (h) the point upon which the disagreement shall happen, (i) shall, during the same term, upon the request of either party, or their counsel, be stated under the direction of the judges, and certified under the seal of the court, to the supreme court, at their next session to be held thereafter, (k) and shall, by the said Decision to be re- court, be finally decided. And the decision of the supreme court, and their order in the premises, shall be remitted to the circuit court, and be there entered of record, and shall have effect according to the nature of the said judgment and order: Provided, That nothing herein contained shall prevent the cause from proceeding, if in the opinion of the court, farther proceedings can be had without prejudice to the merits: And provided also, That imprisonment shall not be allowed, nor punishment in any case be inflicted, where the judges of the said court are divided in opinion upon the question touching the said imprisonment or punishment.

Case may proceed.

No punishment where the court

to be inflicted

is divided.

8 March 1803 22. 2 Stat. 244.

9. From all final judgments or decrees, (1) in any of the district courts of the United States, an appeal, where the matter in dispute, exclusive of costs, shall exceed the sum

(a) If the question decided depended on the construction of a state law, and not on its validity, the court has no jurisdiction. McBride v. Hoey, 11 Pet. 167. Grand Gulf Railroad and Banking Co. v. Marshall, 12 How. 165. Michigan Central Railroad Co. v. Michigan Southern Railroad Co., 19 Ibid. 378.

(b) It is not every misconstruction of an act of congress which can be re-examined; the decision must have been against some right, &c., as claimed under such an act. Montgomery v. Hernandez, 12 Wh. 129. Doe v. Eslava, 9 How. 421.

(c) If the clerk of the state court neglects or refuses to make a return to a writ of error issued under this section, the court will lay a rule upon him to make return on or before the first day of the next term, or show cause why such return has not been made in conformity to law. United States v. Booth, 18 How. 476.

(d) The court is confined to an examination of the questions arising under the laws of the United States, and cannot consider any distinct equity arising out of contracts or transactions be tween the parties. Matthews v. Zane, 7 Wh. 164.

(e) It must be a question of law. and not one of fact. Dennistoun v. Stewart, 18 How. 565. Wilson v. Barnum, 8 Ibid. 258. It may arise on a motion in arrest of judgment. United States v. Kelly, 11 Wh. 417. Or on the trial. United States v. Bevans, 3 Ibid. 336. Or on a special verdict. Somerville's Executors . Hamilton, 4 Ibid. 230. But a division of opinion on a motion for a new trial, cannot be certified under this section. United States v. Daniel, 6 Ibid. 542. Nor matters resting in the discretion of the court. Davis v. Braden, 10 Pet. 286. Packer v. Nixon, Ibid. 408. It is the only mode by which a criminal case can be decided by the supreme court. United States v. Gibert, 2 Sumn. 22.

(9) This does not include the circuit court for the District of Columbia. Ross v. Triplett. 3 Wh. 600. Nor does it embrace cases removed from the district court, as the district judge cannot

sit in error from his own decision. United States v. Lancaster, 5 Ibid. 434.

(h) A division of opinion cannot be certified unless both of the judges were present at the trial. Taylor v. Carpenter, 2 W. & M. 1.

(i) The points stated must be single, and must not bring up the whole case for decision. United States v. Bailey, 9 Pet 267. Adams v. Jones, 12 Ibid. 207. White v. Turk, Ibid. 238. Nesmith v. Sheldon, 6 How. 41. Webster v. Cooper, 10 Ibid. 54. Dennistoun v. Stewart, 18 Ibid. 565. And the questions upon which the judges were opposed in opinion, must be distinctly and particu larly stated, with reference to that point of the case upon which they have arisen. United States v. Briggs, 5 Ibid. 208. Dennistoun v. Stewart, 18 Ibid. 565. Ogilvie e. Knox Insurance Co., Ibid. 577. See United States v. Chicago, 7 Ibid. 192.

(k) Only the questions certified are before the supreme court; the cause is not removed. and may proceed in the circuit court. Kennedy v. Georgia State Bank, 8 How. 611.

(1) Notwithstanding the generality of these terms, this act has made no alteration in the law of 1789, as it respects appeals to the circuit court, except in reducing the sum or matter in controversy from $300 to $50, on which such appeals shall be allowed. The words "final judgments or decrees," refer to judgments and decrees in cases of admiralty and maritime jurisdiction; and in such cases only has this act authorized an appeal from the district to the circuit court. United States v. Nourse, 6 Pet. 496. United States v. Haynes, 2 McLean, 155. United States r. Wonsen, 1 Gall. 5. It does not include a decree under a law conferring a new and special jurisdiction, in which no remedy by appeal is provided, as a decree awarding an injunction to stay a treasury dis tress warrant. United States v. Nourse, 6 Pet. 470, 193; overruling Porter v. United States, 2 Paine, 313.