VOL. 2. vary this decree; so far, at least, as the learned judge himself would have varied it, if the case of Hay v. Le Nerve had been brought to his notice.

"It has been argued, that great inconvenience will ensue, if decrees of this court, after they have once been made, can be altered, varied or rescinded. If it was a frequent practice to alter the decisions of this court, much evil and inconvenience would undoubtedly ensue in consequence. At the same time it is to be observed that great injustice may be occasioned, if this court has not such a discretionary power of varying its decrees, as is possessed by other courts of this country. The Court of Chancery, before enrollment of a decree, may, and often does alter, vary, and amend it; and I am at a loss to conceive upon what grounds this court, in its equitable jurisdiction, is to be precluded from a similar discretionary authority.

"In the exercise of this authority, I should, I trust, use the greatest caution; and the limit which I would propose to myself in future cases is this, merely to make such an alteration of an error arising from defect of knowledge or information upon a particular point, as the justice of the case requires. At the same time, let it be understood, that it must be an error instantly noticed, and brought to the attention of the court with the utmost possible diligence.

"With respect to the case before the court, if I could satisfy my conscience that, in varying this decree, I was departing from what would have been the real judgment of Sir JOHN NICHOLL, I would abstain from making any alteration in the terms of the minute, as it has been taken down by the registrar in the present instance. But believing that I am about to effect, not only what I have authority to do, but what the late learned judge himself would have done, if he were sitting in this chair, I think that I am bound to vary this decree to the extent of making it accord with the judgment of the House of Lords; namely, that each party should pay their own costs.

"With regard to the costs which have been incurred subsequently to the decree, I shall adopt the same course. I shall not give Mr. Pulley his costs, because I think that Mr. Pitcher was right

in standing by the decree which was the decree of the court. It CHAP. 11. is an unfortunate case, but I cannot do otherwise(a)."

I have not hesitated to cite this case so much at large, because it contains, so far as I have discovered, the only exposition of the views entertained by the English High Court of Admiralty, touching its powers to reform its own decrees (b).

It seems very clear that the learned judge entertained no notion of any power in the court analogous to that exercised by courts of equity on a bill of review, or of any power to grant a rehearing upon questions of fact. The only power which he felt himself warranted in asserting, was that of making “ "such an alteration of an error, arising from defect of knowledge or information upon a particular point, as the justice of the case requires." The error to be corrected in the case before him was an error of law; and it was unnecessary for him to decide whether the principle he adopted was, in his judgment, applicable also to an erronous conclusion or mistake of the court respecting a question of fact.

(a) The Monarch, 1 W. Robinson's R., 21.

(b) This case possesses, however, an additional interest on account of the light it sheds upon the forms of procedure in the High Court of Admiralty.

VOL. 2.

CHAPTER XII.

APPEALS.

GENERAL PRINCIPLES REGULATING THE RIGHT of Appeal.

THE legislation of Congress on the subject of appeals, is, in some respects, obscure, and has given rise to several perplexing questions; but the laws being of early date, the questions here more particularly alluded to have long since been settled, and it is unnecessary to bring them under review.

The right of appeal is conferred, defined and regulated by the second section of the act of March 2, 1803, ch. 20(a); which, however, adopts and applies the regulations prescribed by the 22d, 23d and 24th sections of the Judiciary Act of 24th September, 1789, ch. 20(6), respecting writs of

error.

The Judiciary Act gave an appeal from final decrees in a district court, in causes of admiralty and maritime jurisdiction, where the matter in dispute exceeded the sum or value of three hundred dollars, exclusive of costs, to the next circuit court(c). This is the only remedy by appeal provided for by that act; but it gave a writ of error, which might be brought at any time within five (c) Ibid., § 21.

(a) 1 Stat. at Large, 244. (b) Ibid., 73.

years, for the reëxamination of final judgments in CHAP. 12. all other civil cases, involving the sum or value of fifty dollars, from the district court to the circuit court; and from the circuit court to the Supreme Court, in all civil actions originally brought in a circuit court, or removed to it from a state court, or having come by appeal from the district court, when the matter in dispute exceeded the sum or value of two thousand dollars(a).

This act also directs that the testimony, of witnesses, in all cases, in suits in equity, and in those of admiralty jurisdiction, as well as in suits at common law, shall be taken, not on commission, or by examiners out of court, as is usual in courts proceeding according to the course of the civil law, but by viva voce examination in open court().

The proper and well known office of a writ of error, is, to bring under the revision of the appellate court, merely the questions of law in the decision of which the inferior court is supposed to have erred; and when restricted to common law actions in which questions of fact are decided by a jury, and where relief against an erroneous verdict may be obtained by a new trial, a writ of error is sufficient for all the purposes of justice. But to limit the parties to this form of redress in equity and admiralty causes, in which the court, proceeding according to the course of the civil law, decides the questions of fact as well as of law, was an innovation upon all antecedent precedent of which the

(a) 1 Stat. at Large, 73, § 22.

(b) Ibid., § 30.

VOL. 2. suitor had a right to complain. The act, it is true, made it the duty of circuit courts, in causes in equity and of admiralty and maritime jurisdiction, to cause the "facts," on which they founded their sentence or decree, fully to appear upon the record, either from the pleadings and decree itself, or a state of the case agreed by the parties or their counsel; or, if they disagreed, by a stating of the case by the court(a). But this provision did not supply the deficiency suggested; for it still left the appellate court without any adequate means of determining whether the court below might not have erred in drawing conclusions from the evidence.

The limitation of the right of appeal from the district courts to the circuit courts in admiralty causes, to those in which the sum or value in controversy exceeded three hundred dollars, while at the same time a writ of error was given in common law suits involving no more than the amount of fifty dollars, was also deemed to be inconsistent and objectionable.

To remedy these defects, the amendatory act of 1803 above cited was passed, the second section of which (the first and only other section relating to a different subject) is as follows:

"SEC. 2. And be it further enacted, That from all final judgments or decrees in any of the district courts of the United States, an appeal, where the matter in dispute, exclusive of costs, shall exceed the sum or value of fifty dollars, shall be allowed to the circuit court next to be holden in the district where such judgment or judgments, decree or decrees, may be rendered; and the circuit

(a) 1 Stat. at Large, § 19.