24 as the plea of the pendency of another suit, other than a plea to the jurisdiction of the court." A decision upon a motion to dismiss because by the death of a party the action has abated, affects the jurisdiction and can be reviewed upon a writ of error.22 It seems that a writ of error cannot issue from the Supreme Court of the United States to a judgment of a Territorial Court in a case not tried by a jury. The review in the Supreme Court of the United States of a judgment of a Territorial Court in a case not tried by a jury can only be by an appeal. In such a case, instead of the evidence at large, a statement of the facts of the case in the nature of a special verdict, with the rulings of the court on the admission or rejection of evidence when excepted to, should be made and certified by the court below. The Supreme Court of the United States can only consider the exceptions to the rulings on evidence and also whether the decree can be sustained upon the findings, without reference to the weight of evidence or its sufficiency to support the findings.25 Upon an appeal from the Court of Claims, the evidence is not included in the findings; and the Supreme Court does not review the decision upon questions of fact.26 21 U. S. R. S., § 1011, as amended 18 St. at L., ch. 80, p. 318; Piquignot v. Penn. R. Co., 16 How. 104; Stephens v. Monongahela Bank, 111 U. S. 197. 22 Henderson v. Henshall, 54 Fed. R. 320, 330; Martin's Adm'r v. B. & O. R. Co., 151 U. S. 673, 703. "The proceeding is an action which is commenced by a writ, and the cause of the action is the damage sustained by the parties from the error in the previous judgment, and this damage equally attaches on the survivor in this as in any other action." Lord Ellenborough in Clark v. Rippon, 1 B. & Ald. 586; quoted in Moses v. Wooster, 115 U. S. 285, and Martin's Adm'r v. B. & O. R. Co., 151 U. S. 673, 703. 23 18 St. at L. 27; Stringfellow v. Cain, 99 U. S. 610; Cannon v. Pratt, 99 U. S. 619; Gray v. Howe, 108 U. S. 12; Thompson v. Ferry, 180 U. S. 484; 25 Ibid.; Stur v. Beck, 133 U. S. 541; San Pedro & C. D. A. Co. v. U. S., 146 U. S. 120; Young v. Amy, 171 U. S. 179; Harrison v. Perea, 168 U. S. 311; Mammoth Min. Co. v. Salt Lake F. & M. Co., 151 U. S. 447; Black v. Jackson, 177 U. S. 349; Caffrey v. Oklahoma Territory, 177 U. S. 346; Rogers v. U. S., 141 U. S. 548. 26 S. C. Rules on Appeals from Ct. Cl.; supra, § 457; Talbert v. U. S., 155 U. S. 45. This rule does not apply to suits in equity brought in the Court of Claims under special statutes. U.S. v. Old Settlers, 148 U. S. 427; Harvey v. U. S., 105 U. S. 671, 691; La Abra S. Min. Co. v. U. S., 175 U. S. 423. § 497. Writs of error and appeals to the Supreme Court from the Federal courts.-The Evarts Act as amended provides: "That appeals or writs of error may be taken from the District Courts or from the existing Circuit Courts direct to the Supreme Court in the following cases: In any case in which the jurisdiction of the court is in issue; in such cases the question of jurisdiction alone shall be certified to the Supreme Court from the court below for decision. From the final sentences and decrees in prize causes. In cases of conviction of a capital crime.3 In any case that involves the construction or application of the Constitution of the United States. In any case in which the constitutionality of any law of the United States, or the validity or construction of any treaty made under its authority, is drawn in question. In any case in which the Constitution or a law of a State is claimed to be in contravention of the Constitution of the United § 497. See infra, § 498. 2 Irrespective of the amount involved. The Paquete Habana, 175 U. S. 677. 3 The former words, "or otherwise infamous crime," were stricken out by the act of January 20, 1897. 29 St. at L. 492. It seems that the United States cannot review by writ of error a judgment of acquittal except possibly when a constitutional, jurisdictional or treaty question is involved. U. S. v. Sanges, 144 U. S. 310. 4 The question whether a State tax on patent rights is constitutional is one that involves the construction or application of the Constitution of the United States and not one arising under the patent laws. Holt v. Indiana Mfg. Co. (C. C. A.), 80 Fed. R. 1. So is the question whether the Constitution allows the rules and regulations of a Department to have the force of law. Boske v. Comingore, 177 U. S. 459. A criminal case, when it involves the construction or application of the Constitution of the United States, may be taken directly from a Circuit Court to the Supreme Court of the United States, although there has been no conviction of a capital crime. Motes v. U. S., 178 U. S. 458. So may an order denying the writ of habeas corpus. Horner v. U. S., No. 2, 143 U. S. 570; Rice v. Ames, 180 U. S. 371; supra, § 368. If an appeal has previously been taken to a Circuit Court of Appeals in a case of which that court has jurisdiction, a subsequent appeal to the Supreme Court from the Circuit Court will be dismissed. Carter v. Roberts, 177 U. S. 496; Am. Sugar Refining Co. v. New Orleans, 181 U. S. 277. 5 Florida v. Furman, 180 U. S. 402; Rice v. Ames, 180 U. S. 371; Ornelas v. Ruiz, 161 U. S. 502, 507; Borgmeyer v. Idler, 159 U. S. 408; Muse v. Arlington Hotel Co., 168 U. S. 430; Robinson v. Caldwell, 165 U. S. 359; Budzisz v. Illinois Steel Co., 170 U. S. 41; The Pilot (C. C. A.), 53 Fed. R. 11; In re Newman, 79 Fed. R. 615. 6 A city ordinance is considered as a law of the State within the meaning of the statute. Penn Mut. L. Ins. Co. v. Austin, 168 U. S. 685. States." No appeal or writ of error lies until final judgment or decree. In cases taken directly to the Supreme Court, where a constitutional question is raised, the Supreme Court reviews all the questions in the case, not merely the constitutional question. The same rule applies when the validity or construction of a treaty is drawn in question.10 The Supreme Court has jurisdiction whether the right claimed under the Constitution was upheld or denied in the court below." The Supreme Court will not take jurisdiction upon this ground when there is no substantial controversy concerning the construction or application of the Constitution, or the validity or construction of a treaty.12 The Evarts Act further provides that "the judgments or decrees of the Circuit Courts of Appeals shall be final in all cases in which the jurisdiction is dependent entirely upon the opposite parties to the suit or controversy being aliens or citizens of the United States, or citizens of different States; also in all cases arising under the patent laws, under the revenue laws, and under the criminal laws, and in admiralty cases; and "in all cases not herein before in this section made final, there shall be of right an appeal or writ of error or review of the case by the Supreme Court of the United States, where the matter in controversy shall exceed one thousand dollars besides costs. But no such appeal shall be taken or writ of 7 26 St. at L. 827; Illinois Cent. Ry. Co. v. Adams, 180 U. S. 28. It is too late to raise the question for the first time in the assignments of error. Cincinnati, H. & L. R. Co. v. Thiebaud, 177 U. S. 615. See Arkansas v. Schlierholz, 179 U. S. 598; infra, § 500. 8 McLish v. Roff, 141 U. S. 661; infra, § 503. 9 Ekiu v. U. S., 142 U. S. 651; Horner v. U. S., No. 2, 143 U. S. 570. 10 Rice v. Ames, 180 U. S. 371; Florida v. Furman, 180 U. S. 402. 11 Holder v. Aultman M. & Co., 169 U. S. 81. 12 In re Lennon, 150 U. S. 393; Carey v. Houston & T. Ry. Co., 150 U. S. 170; C. A. Treat Mfg. Co. v. Standard S. & I. Co., 157 U. S. 674; Merritt v. Bowdoin College, 169 U. S. 551; Muse v. Arlington Hotel Co., 168 U. S. 430; Central Tr. Co. v. Citizens' St. Ry. Co., 82 Fed. R. 1; City of Indianapolis v. Central Tr. Co., 83 Fed. R. 529; s. c., 27 C. C. A. 580; Cornell v. Green, 163 U. S. 75; Consolidated Water Co. v. Babcock, 173 U. S. 702; Lampasas v. Bell, 180 U. S. 276. It has been held that an issue as to whether due force and effect has been given to a judgment of another State does not involve the construction or application of the Constitution, but depends upon the interpretation of an act of Congress; and that consequently the Circuit Court of Appeals has jurisdiction to review the decision. Merritt v. Steel Barge Co. (C. C. A.), 75 Fed. R. 813. error sued out unless within one year after the entry of the order, judgment, or decree sought to be reviewed." 13 15 It has been held that the Supreme Court can review by writ of error or appeal the final decision of a Circuit Court of Appeals where the matter in controversy exceeds one thousand dollars besides costs, in a case where the Federal jurisdiction depends solely upon the fact that the party is a corporation chartered by Congress; 14 where a suit is brought against a receiver of a national bank appointed by the Comptroller; where a suit is brought against a marshal of the United States and a private person on account of an alleged wrongful execution of the process of a Federal court; 16 where suit is brought by the United States to cancel a patent for an invention; or to dissolve an association formed to monopolize interstate commerce; 18 in a suit brought by the Interstate Commerce Commission to enforce one of its orders; 19 in a suit to recover penalties exceeding one thousand dollars for breach of copyright; and in a suit in which the plaintiff claims relief under the land laws of the United States and shows in his declaration or complaint that there is a controversy between him and the defendant as to their construction." In every subject within the 17 13 26 St. at L. 828, § 6. 14 No. Pac. R. Co. v. Amato, 144 U. S. 465; Union Pac. R. Co. v. Harris, 158 U. S. 326; Texas & Pac. Ry. Co. v. Gentry, 163 U. S. 353. $1,000, and an allegation in the answer that free competition would cause great loss and possible financial ruin to the railroad company, were sufficient proof that the matter in 15 Auten v. U. S. Nat. Bank, 174 controversy exceeded $1,000. U. S. 125. 19 Interstate Commerce Com'n v. 16 Sonnentheil v. Christian Moerlein Detroit, G. H. & M. Ry. Co., 167 U. S. Br. Co., 172 U. S. 401. 17 U. S. v. Am. Bell Tel. Co., 159 U. S. 548. But a writ of scire facias upon a forfeited recognizance or bail bond to secure the appearance of the defendant to a criminal charge is a case "arising under the criminal laws" in which the jurisdiction of the Circuit Court of Appeals is final. Hunt v. U. S., 166 U. S. 424. 18 U. S. v. Trans-Missouri Freight Ass'n, 166 U. S. 290. There it was held that a stipulation that the daily interstate shipments from the competitive points in question exceeded 633. 20 Brady v. Daly, 175 U. S. 148. But not in a suit to recover damages for an infringement of a common-law copyright. Press Publishing Co. v. Monroe, 164 U. S. 105. 21 Florida C. & P. R. Co. v. Bell, 176 U. S. 321. The decisions of the Circuit Courts of Appeals are final in suits to review the decisions of the board of general appraisers, since they arise under the revenue laws, Anglo-Californian Bank v. U. S., 175 U. S. 37; in proceedings to limit the liability of ship appellate jurisdiction of a Circuit Court of Appeals, in which its judgment or decree is final, said Circuit Court of Appeals at any time may certify to the Supreme Court any questions or propositions of law concerning which it desires the instruction of that court for its proper decision. And thereupon the Supreme Court may either give its instruction on the questions and propositions certified to it, which shall be binding upon the Circuit Court of Appeals in such case, or it may require that the whole record and cause may be sent up to it for its consideration, and thereupon shall decide the whole matter in controversy in the same manner as if it had been brought there for review by writ of error or appeal." " In any case in which the decision of a Circuit Court of Appeals is final, the Supreme 22 owners, since they are admiralty writ of habeas corpus, since the matcases, Oregon R. & Nav. Co. v. Bal- ter in controversy cannot be meas‐ four, 179 U. S. 55; in suits for dam- ured in money. Lau Ow Bew v. ages on account of the infringement U. S., 144 U. S. 47. Nor from an of a common-law copyright, Press order affirming or reversing an inPub. Co. v. Monroe, 164 U. S. 105; in terlocutory order for an injunction. proceedings upon petitions of inter- Kirwan v. Murphy, 170 U. S. 205. Nor vention, Rouse v. Hornsby, 161 U. S. from a decree of such a court that is 588; Gregory v. Van Ee, 160 U. S. not final in its nature. U. S. v. Krall, 643; in suits brought by and against 174 U. S. 385: MacLeod v. Graven receivers of Federal courts, when (C. C. A.), 79 Fed. R. 84; infra, § 503. the sole ground of jurisdiction is "It is settled that the words 'unthat in the suits wherein they were less otherwise provided by law,' in appointed there was a diversity this section, refer only to provisions of citizenship, Pope v. Louisville, of the same act, or of contemporaN. A. & C. Ry. Co., 173 U. S. 573; neous or subsequent acts, and do Rouse v. Hornsby, 161 U. S. 588; not include provisions of earlier statCarey v. Houston & T. C. Ry. Co., 161 utes." Gray, J., in The Paquete U. S. 115; and in suits in which the Habana, 175 U. S. 677, 683. original ground of jurisdiction and the only one that appeared by the plaintiff's pleading was a difference of citizenship, although subsequently another ground for jurisdiction appeared. Colorado C. C. Min. Co. v. Turck, 150 U. S. 138; Borgmeyer v. Idler, 159 U. S. 408; Third St. & Suburban Ry. Co. v. Lewis, 173 U. S. 457; Am. Sugar Refining Co. v. New Orleans, 181 U. S. 277. See also Benja min v. New Orleans, 169 U. S. 161. No appeal lies to the Supreme Court from a decree of a Circuit Court of Appeals upon an application for the The Evarts Act has repealed U. S. R. S., §§ 651 and 697, U. S. v. Rider, 163 U. S. 132; U. S. v. Hewecker, 164 U. S. 46; U. S. R. S., § 763; Webb v. York, 74 Fed. R. 753. See Ex parte Lennon, 150 U. S. 393; 18 St. at L 315, § 3; The Havilah (C. C. A.), 48 Fed. R. 684; and so much of § 16 of the Interstate Commerce Law as allowed an appeal direct to the Supreme Court from certain orders of the Circuit Court under that act. Interstate Com. Com'n v. Atchison, T. & S. F. R. Co., 149 U. S. 264. 22 26 St. at L. 828, § 67; infra, § 499. |