since the original decree, the rights of the parties have so changed as to make it improper to carry it into execution, relief can usually be had only through some form of original proceeding in the court in which the decree was rendered.56 Where a plaintiff has voluntarily become nonsuit, he cannot have the proceedings reversed by a writ of error.57 On an appeal from a decree entered by consent, the only question which can be considered is whether the court below had jurisdiction of the case so as to authorize it to enter any decree.58 Where an appeal is taken from a decree entered upon an order taking a bill in equity as confessed by defendants for want of an answer, the only question for the consideration of the appellate court is whether the allegations of the bill and the proofs of service are sufficient to support the decree.59

As a general rule the appellate court has no power to review questions within the discretion of the court below; 60 but the

56 Mackall v. Richards, 116 U. S. 45; The Vaughan and Telegraph, 14 Wall. 258.

57 U. S. v. Evans, 5 Cranch, 280; Evans v. Phillips, 4 Wheat. 73; Central Transp. Co. v. Pullman's P. C. Co., 139 U. S. 24, 39.

58 Pacific R. Co. v. Ketchum, 101 U. S. 289; U. S. v. Babbitt, 104 U. S. 767. See also Mandeville v. Holey, 1 Pet. 136.

59 Masterson v. Howard, 18 Wall. 99; Thomson v. Wooster, 114 U. S. 104; Dobson v. Hartford Carpet Co., 114 U. S. 439; O'Hara v. MacConnell, 93 U. S. 150.

60 Cook v. Burnley, 11 Wall. 659; Silsby v. Foote, 14 How. 218; Freeborn v. Smith, 2 Wall. 160; CheangKee v. U. S., 3 Wall. 320; Barton v. Forsyth, 5 Wall. 190. The mode of conducting trials, the order of introducing evidence, and the times when it is to be introduced, are properly matters belonging to the practice of the trial court, with which the appellate court ought not to interfere. Philadelphia & T. R. Co. v. Stimpson, 14 Pet. 448. So are all questions as to surprise, as to re-opening a case, or

as to the order of proof. Ames v. Quimby, 106 U. S. 342. To a large extent, the course and extent of a cross-examination of a witness is subject to the control of the court in the exercise of a sound discretion; and the exercise of that discretion is not reviewable on a writ of error. Rea v. Missouri, 17 Wall. 532. But see Eames v. Kaiser, 142 U. S. 488. A judgment may, but rarely will, be reversed for the expressions of his opinion on the facts by the judge in his charge, when he left all the questions of fact to the decision of the jury. Cf. Arey v. De Loriea (C. C. A.), 55 Fed. R. 323. The decision of the trial court as to which party is entitled to the opening and closing of the argument to the jury will not be reviewed by the appellate court. Hall v. Weare, 92 U. S. 728; Day v. Woodworth, 13 How. 363; Lancaster v. Collins, 115 U. S. 222. An allowance or refusal of an amendment to a pleading is ordinarily a matter for the discretion of the court below. Jenkins v. Banning, 23 How. 455; Ex parte Bradstreet, 7 Pet. 634; Wright v. Hollingsworth, 1 Pet. 165; Spencer

discretionary exercise of equitable jurisdiction, for example, in granting or refusing specific performance, may be reviewed. The granting or refusal of a motion for a new trial, either absolutely 62 or conditionally, is within the discretion of the court;

1

67

65

66

but where the court below refuses to consider a motion for a new trial upon the ground that it has no power to do so, or improperly refuses to consider affidavits upon such a motion," or grants a new trial when it has no power to act upon the motion, the decision may be reviewed by a writ of error. It seems that exceptions to rulings on a motion to change the venue are not available on a writ of error.6 The opening of a default is not subject to revision in the appellate court. An order directing a compulsory nonsuit or a dismissal of a complaint 70 may be reviewed by writ of error to the final judgment." An error that would not have been prejudicial to the plaintiff in error or appellant is no ground for a reversal. The court of review will not consider exceptions taken by a party who has not sued out a writ of error or taken an appeal.73

69

72

On appeals from the Court of Claims, in the absence of a special statute, nothing can be reviewed but questions of law.74 On appeals from the Court of Claims the findings of fact import absolute verity and conclude both parties.75 Where the Court of Claims sends up as a part of its findings of facts all the evidence on which an essential fact was found, and there is no legal evidence to establish such fact, the Supreme Court must reverse the judgment, if the fact so found is essential to

65 Felton v. Spiro (C. C. A.), 78 Fed. R. 576.

an erroneous instruction to the jury where the evidence justified a direc

66 Clyde Mattox v. U. S., 146 U. S. tion in favor of the defendant in 140, 147; supra, § 376.

67 City of Manning v. German Ins. Co. (C. C. A.), 107 Fed. R. 52, 54.

68 McFaul v. Ramsey, 20 How. 523; Cook v. Burnley, 11 Wall. 659.

69 U. S. v. Estudillo, 1 Wall. 710; McAllister v. Kuhn, 96 U. S. 87.

70 Central Transp. Co. v. Pullman's P. C. Co., 139 U. S. 24, 39.

71 Elmore v. Grymes, 1 Pet. 469: Central Transp. Co. v. Pullman's P. C. Co., 139 U. S. 24, 39.

72 Such as the erroneous admission of evidence which could not have affected the result. Holmes v. Goldsmith, 147 U. S. 150; U. S. v. Shapleigh (C. C. A.), 54 Fed. R. 126, 137; Dorsheimer v. Glenn, 51 Fed. R. 404. A judgment will not be reversed for

error. W. B. Grimes Dry Goods Co. v. Malcolm, 58 Fed. R. 670. Nor for an erroneous instruction inapplicable to the case. Crosby Lumber Co. v. Smith (C. C. A.), 51 Fed. R. 63. Nor for an erroneous instruction which could have done no harm. Cf. Iron Silver Min. Co. v. Mike & S. G. & S. Min. Co., 143 U. S. 394; Kansas City, Ft. S. & M. R. Co. v. Stoner, 51 Fed. R. 649, 655. But see Deery v. Crary, 5 Wall. 795; Smith v. Shoemaker, 17 Wall. 630.

73 U. S. v. Black feather, 155 U. S. 180.

74 Mahan v. U. S., 14 Wall. 109; U. S. v. Smith, 94 U. S. 214.

75 Desmare v. U. S., 93 U. S. 605; Talbert v. U. S., 155 U. S. 45.

the judgment. The judgment of the Court of Claims as to the legal effect of the ultimate circumstantial facts in a case may be reviewed on appeal." The conclusions of law drawn from the findings of fact may be reviewed.78 Questions of law arising in the course of a trial before the Court of Claims may also be reviewed upon appeal.79 Upon a question of fraud or mistake, the Supreme Court will not go behind the findings of fact of the Court of Claims.8 80

§ 518. Mandate.- The judgment of the appellate court is embodied in a mandate which is sent down to the court whose proceedings have been reviewed by writ of error or appeal. Neither the Supreme Court nor the Circuit Court of Appeals has power to issue execution on appeal or error to the judgment or decree of a Federal court. A mandate may be recalled from the inferior court, and corrected or set aside, at the term at which it is issued. An application to recall and correct a mandate cannot be made after the close of the term.3 In a case in which the appellate court had no jurisdiction, it may of its own motion modify the judgment, recall a mandate of affirmance, pending the term at which it was issued, and dismiss the writ of error. No mandate issues without an order from the appellate court, which is usually granted only on consent or upon notice. It was the former practice in the Supreme Court of the United States, when no special circumstances were shown, to issue no mandates, except immediately before the February recess, and immediately before the conclusion of the term. Where a party has died after argument," or where an appeal or writ of error has been argued in ignorance of his

76 U. S. v. Clark, 96 U. S. 37. 77 U. S. v. Pugh, 99 U. S. 265.

78 Union Pac. R. Co. v. U. S., 116 U. S. 154. See also The Adriatic, 107 U. S. 512.

79 McClure v. U. S., 116 U. S. 145. 80 U. S. v. Adams, 6 Wall. 101. As to decisions upon appeals from Territorial courts, see Mammoth Min. Co. v. Salt Lake F. & M. Co., 151 U. S. 447; supra, §§ 496, 497.

798; Ex parte Crenshaw, 15 Pet. 119; U. S. v. Gomez, 23 How. 326.

3 Schell v. Dodge, 107 U. S. 629; Killian v. Ebbinghaus, 111 U. S. 798; Minn. Tribune Co. v. Associated Press (C. C. A.), 84 Fed. R. 921; Hawkins v. Cleveland, C., C. & St. L. Ry. Co. (C. C. A.), 99 Fed. R. 322; s. c. (C. C. A.), 89 Fed. R. 266.

4 U. S. v. Gomez, 23 How. 326; Cannon v. U. S., 118 U. S. 355; Ex

§ 518. 1U. S. R. S., § 701; 26 St. at parte Crenshaw, 15 Pet. 119. L. 826, §§ 10, 11.

5

Clay v. Smith, 3 Pet. 411. See S. C.

2 Killian v. Ebbinghaus, 111 U. S. Rule 39, quoted infra.

death, or in a case where it is necessary to prevent an abatement which would cause injustice; the judgment of the appellate court may be entered nunc pro tunc as of a date prior to his death.

Where a judgment for the payment of money is affirmed by the Supreme Court upon a writ of error, interest is awarded to the defendant in error from the day of the judgment until its payment, at the same rate that similar judgments bear interest in the courts of the State where such judgment is rendered. The same rule applies to decrees for the payment of money in cases in equity, unless otherwise ordered by the appellate court." "In cases in admiralty, damages and interest may be allowed if specially directed by the court." 10 Unless interest is included in the mandate it cannot be awarded after the affirmance." In case interest is improperly allowed by the court below, and the amount of the interest is insufficient to warrant a writ of error, the appellate court may compel the court below by a mandamus to vacate so much of the judgment as awards interest.12 Where proceedings under the judgment or decree below have been stayed, and the appellate court considers that the writ of error or appeal was taken merely for delay, damages at the rate of ten per cent. in addition to the interest may be awarded.13 Where a judgment or decree which is reversed has been exccuted pending the writ of error or ap

6 Bank of U. S. v. Weisiger, 2 Pet. 481.

7 Coughlin v. District of Columbia, 106 U. S. 7.

8 S. C. Rule 23; C. C. A. Rule 30; U. S. R. S., § 1010; Perkins v. Fourniquet, 14 How. 328; McNiel v. Holbrook, 12 Pet. 84. As to the power of the District of Columbia Court of Appeals, see Washington & G. R. Co. v. Harmon's Adm'r, 147 U. S. 571, 589.

the mandate. U. S. v. So. Pac. R. Co., 56 Fed. R. 865.

12 In re Washington & G. R. Co., 140 U. S. 91.

13 S. C. Rule 23; C. C. A. Rule 30; U. S. R. S., § 1010; Barrow v. Hill, 13 How. 54; Sutton v. Bancroft, 23 How. 320; Kilbourne v. State Sav. Inst., 22 How. 503; Sire v. Ellithorpe A. Br. Co., 137 U. S. 579; Whitney v. Cook, 131 U. S. cxcvii; Insurance Co. v. Huchbergers. 12 Wall. 164;

9S. C. Rule 23; C. C. A. Rule 30; Hennessy v. Sheldon, 12 Wall. 440; U. S. R. S., § 1010.

10 Ibid.

11 Boyce v. Gundy, 9 Pet. 275, 289; Green v. Chicago, S. & C. Ry. Co. (C. C. A.), 49 Fed. R. 957. But costs of the court below have been awarded although not directed in

Hall v. Jordan, 19 Wall. 271; Peyton v. Heinekin, 131 U. S. ci; Jenkins v. Banning, 23 How. 455; Prentice v. Pickersgill, 6 Wall. 511; Campbell v. Wilcox, 10 Wall. 421; Amory v. Amory, 91 U. S. 356; Texas & P. Ry. Co. v. Volk, 151 U. S. 73; Wat