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must be supposed to abridge the rights of those who have been accustomed to use it. Bat this abridgment, unless it comes in conflict with the constitution or a law of the United States, is an affair between the government of Delaware and its citizens; of which this court can take no cognisance. Wilson et al. v. The Black Bird Creek Company, 2 Peters, 250.

100. Both the plaintiff and the defendant claimed title under the provision of the act of congress, passed March 3, 1803, entitled "an act regulating the grants of lands, and providing for the disposal of the lands of the United States south of Tennessee river," and the decision of the supreme court of the state of Mississippi, was upon the construction of the act given by the commissioners acting under its authority. This is a case which draws in question the con

Appellate Jurisdiction of the Supreme Court, in Cases originating in State Courts. cided upon the constitutionality of a law, so that the case was within the provisions of the 25th section of the judiciary act of 1789. This has given occasion for a critical examination of the section, which has resulted in the adoption of certain principles of construction applicable to it. One of those principles is, that if the repugnancy of a statute of a state to the constitution of the United States, was drawn into question, or if that question was applicable to the case, the supreme court has jurisdiction of the cause, although the record should not, in terms, state a misconstruction of the constitution of the United States, or that the repugnancy of the statute of the state, to any part of that constitution, was drawn into question. Satterlee v. Matthewson, 2 Peters, 380. 95. The supreme court has frequently decided, that to sustain this jurisdiction in appeals and writs of error, it is not necessary to state instruction of an act of congress, and the supreme terms upon the record, that the constitution, or a law of the United States, was drawn in question. It is sufficient to bring the case within the 25th section of the judiciary act, if the record shows that the constitution, or a law of the United States must have been misconstrued, or the decision could not have been made; or that the constitutionality of a state law was questioned, and the decision was in favour of the party claiming under such law. Wilson et al. v. Black Bird Creek Marsh Co., 2 Peters, 241.

96. It has often been decided in the supreme court, that it is not necessary it shall appear in terms upon the record, that the question was presented in the state court whether the case was within the purview of the twenty-fifth section of the judiciary act of 1789, to give jurisdiction to the court, in a case removed from a state court; it is sufficient, if, from the facts stated, such a question must have arisen, and the judgment of the state court would not have been what it is, if there had not been a misconstruction of some act of congress, &c. &c., or a decision against the validity of the right, privilege, or exemption set up under it. Harris v. Dennie, 3 Peters, 292.

97. The supreme court of the United States has no power under the twenty-fifth section of the judiciary act of 1789, to revise the decree of a state court, when no question was raised or decided in the state court upon the validity or construction of an act of congress, nor upon the authority exercised under it; but on a state law only. M'Bride v. Hoey, 11 Peters, 167.

98. The judgment of the highest court of law of a state, deciding in favour of the validity of a statute of a state drawn in question, on the ground of its being repugnant to the constitution of the United States, is not a final judgment within the twenty-fifth section of the judiciary act of 1789, if the suit has been remanded to the inferior state court, where it originated, for further proceedings, not inconsistent with the judgment of the highest court. Winn's Heirs v. Jackson et al., 12 Wheat. 135; 6 Cond. Rep. 479.

court of the United States has jurisdiction on a writ of error, by which the decision of the court of the state of Mississippi is brought up for revision, under the 25th section of the judiciary act of 1789. Ross v. Barland et al., 1 Peters, 655.

101. A lot of ground situated in the city of New Orleans, which was occupied under an incomplete title for some time, by permission of the Spanish government, granted before the acquisition of Louisiana by the United States, was confirmed to the claimants, under the laws of the United States; and a patent was issued for the same on the 17th of February, 1821. The city of New Orleans, claiming this lot as being part of a quay dedicated to the use of the city, in the original plan of the town, and therefore not grantable by the king of Spain, enlarged the levee, in front of New Orleans, so as to include it. The patentees from the United States brought a suit in the district court of the state of Louisiana for the lot, which pronounced judgment in their favour, and that judgment was affirmed by the supreme court of the state. The judgment was removed to the supreme court, under the 25th section of the judiciary act. A motion was made to dismiss the writ of error for want of jurisdiction. By the Court:- The merits of this controversy cannot be revised in this tribunal. The only inquiry here is, whether the record shows that the constitution, or a treaty, or a law of the United States has been violated by the decision of that court. City of New Orleans v. De Armas et al., 9 Peters, 224.

102. The twenty-fifth section of the judiciary act is limited by the constitution, and must be construed so as to be confined within those limits. But to construe this section so that a case can arise under the constitution or a treaty, only when the right is created by the constitution or treaty, would defeat the obvious purpose of the constitution, as well as the act of congress. The language of both instruments extends the jurisdiction of the supreme court to rights protected by the constitution, treaties or laws of the United States, from whatever source these

99. The measure authorized by the act of as-rights may spring. Ibid. sembly of the state of Delaware, passed in Feb- 103. To sustain the jurisdiction of the court ruary, 1822, viz: the construction of a dam across in the case, it must be shown that the title set Black Bird Creek, stops a navigable stream, and | up by the city of New Orleans, is protected by

Appellate Jurisdiction of the Supreme Court, in Cases originating in State Courts.

the treaty ceding Louisiana to the United States, | general of the King of Saxony, was not denied: or by some act of congress applicable to that title. Ibid.

104. The third article of the treaty of Louisiana stipulates for the admission of Louisiana into the Union, and it obviously contemplates two objects, one, that stated, and the other that, till that admission, the inhabitants of the ceded territory shall be protected in the enjoyment of their liberty, property, and religion. Had any of these rights been violated, while the stipulation continued in force, the individual supposing himself to be injured, might have brought his case into the supreme court, under the 25th section of the judiciary act. Ibid.

105. But the stipulation ceased to operate when Louisiana became a member of the Union, and its inhabitants were "admitted to the enjoyment of all the rights, advantages, and immunities of citizens of the United States." The right to bring questions of title decided in a state court before the supreme court, is not classed among those immunities. The inhabitants of Louisiana enjoy all the advantages of American citizens, in common with their brethren in their sister states, when their titles are decided by the tribunals of the state. Ibid.

106. The act of congress admitting Louisiana into the Union, carries into execution the third article of the treaty of cession; and it cannot be construed to give appellate jurisdiction to the court over all questions of title between the citizens of Louisiana. Ibid.

107. The patent granted to the claimants of the land did not profess to destroy any previous existing title, nor could it so operate. The patent was issued under the act of May, 1820, entitled "an act supplementary to the several acts for the adjustment of land titles in the state of Louisiana." That act confirms the titles to which it applies, "against any claim on the part of the United States." The title of the city of New Orleans could not be affected by this confirmation. Ibid.

108. It has been settled, that in order to give jurisdiction to the supreme court under the 25th section of the judiciary act, it is not necessary the record should state, in terms, that an act of congress was in point of fact drawn in question. It is sufficient if it appears from the record that an act of congress was applicable to the case, and was misconstrued; or the decision of the state court was against the privilege or exemption specially set up under such statute. Davis v. Packard and others, 6 Peters, 41.

109. In the court for the correction of errors, in the state of New York, the plaintiff in error assigned as an error in a case removed by writ of error to that court, that he was at the time the action was brought, and continued, consulgeneral in the United States of the King of Saxony; and as such, should have been impleaded in some district court of the United States, and the supreme court in New York had no jurisdiction in the suit; no plea to the jurisdiction was tendered in the case until it was before the court of errors; and in that court, the fact that the plaintiff in error was the consul

the court of errors in the decree say, having examined and fully considered the causes assigned for error, they affirm the judgment of the supreme court. This was deciding against the privilege set up under the act of congress, which declares, that the district courts of the United States shall have jurisdiction, exclusive of the courts of the several states, of all suits against consuls and vice-consuls. Ibid.

110. The twenty-fifth section of the judiciary act of 1789, confers appellate jurisdiction on the supreme court from final judgments and decrees in any suit in the highest court of law or equity of a state, in which a decision in the suit could be had, in three classes of cases: first, where is drawn in question the validity of a treaty or statute of, or an authority exercised under the United States, and the decision is against their validity; secondly, 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, and the decision is in favour of such, their validity; thirdly, where is drawn in question the construction of any clause of the constitution, or of a treaty or statute of, or commission held under the United States, and the decision is against the title, right, privilege, or exemption specially set up or claimed by either party, under such clause of the said constitution, treaty, statute, or commission. The section then goes on to provide that no other error shall be assigned or regarded as a ground of reversal in any such cases as aforesaid, than such as appears upon the face of the record, and immediately respects the beforementioned questions of validity or construction of the said constitution, treaties, statutes, commissions, or authorities in dispute. Crowell v. Randell, 10 Peters, 368.

111. In the interpretation of the twenty-fifth section of the act of 1789, it has been uniformly held, that to give the supreme court appellate jurisdiction, two things should have occurred, and be apparent in the record: first, that some one of the questions stated in the section did arise in the court below; and secondly, that a decision was actually made thereon by the same court in the manner required by the section. If both of these do not appear on the record, the appellate jurisdiction fails. It is not sufficient to show that such a question might have occurred, or such a decision might have been made in the court below. It must be demonstrated that they did exist and were made. Ibid.

112. It has been decided, that it is not indispensable that it should appear on the record in totidem verbis, or by direct and positive statement, that the question was made, and the decision given by the court below, on the very point; but that it is sufficient, if it is clear from the facts stated, by just and necessary inference, that the question was made; and that the court below must, in order to have arrived at the judg ment pronounced by it, have come to the very decision of that question as indispensable to that judgment. Ibid.

Appellate Jurisdiction of the Supreme Court, in Cases originating in State Courts.

113. In order to bring a case for a writ of error | previous to 1787, and before that country was or an appeal to the supreme court, from a court conquered for Virginia. Aspasia was born in of the highest jurisdiction of any of the states, Illinois subsequent to the passage of the ordiwithin the twenty-fifth section of the judiciary nance for the government of that territory. Asact, it must appear on the face of the record: pasia was afterwards sent as a slave to the state 1st. That some one of the questions stated in of Missouri. In Missouri, Aspasia claimed to that section did arise in the state court. 2d. That be free, under the ordinance for the governthe question was decided by the state court, as ment of the territory of the United States northrequired in the same section. It is not neces- west of the river Ohio," passed 13th July, 1787. sary that the question should appear on the re- The supreme court of Missouri decided that cord to have been raised, and the decision made Aspasia was free; and Menard, who claimed in direct and positive terms, ipsissimus verbis, her as his slave, brought a writ of error under but it is sufficient if it appears by clear and ne- the twenty-fifth section of the act of 1789, claimcessary intendment that the question must have ing to reverse the judgment of that court. Held, been raised, and must have been decided in that the case is not within the provisions of the order to have induced the judgment. It is not twenty-fifth section of the act of 1789. Menard sufficient to show, that a question might have v. Aspasia, 5 Peters, 505. arisen or been applicable to the case, unless it is farther shown on the record that it did arise, and was applicable by the state court to the case. Ibid.

114. Where, in such a case, the validity of a statute of any state is drawn in question, upon the ground of its being repugnant to the constitution of the United States, and the decision has been in favour of its validity, it is necessary to the exercise of the appellate jurisdiction of this court, that it should distinctly appear that the title or right of the party depended upon the statute. Williams v. Norris, 12 Wheat. 117; 6 Cond. Rep. 462.

117. The provisions of the compact which res late to "property" and to "rights," are general They refer to no specific property or class of rights; it is impossible, therefore, judicially, to limit their application. If it were admitted that Aspasia is the property of the plaintiff in error, and the supreme court were to take jurisdiction of the cause under the provisions of the ordinance, must they not on the same ground interpose their jurisdiction in all other controversies respecting property, which was acquired in the north-western territory? Ibid.

118. Whatever right may be claimed to have originated under the ordinance of 1787, it would 115. New York. The plaintiff in error claimed seem that a right to the involuntary service of an to recover the land in controversy, having de-individual could not have had its source in that rived his title under a patent, granted by the instrument. It declares that "there shall not state of New York to John Cornelius. He in- be slavery nor involuntary servitude in the tersisted that the patent created a contract between ritory." If this did not destroy a vested right the state and the patentee, his heirs and as-in slaves, it at least did not create or strengthen signs, that they should enjoy the land, free from that right. Ibid. any legislative regulations to be made in viola- 119. If the decision of the supreme court of tion of the constitution of the state; and that Missouri had been against Aspasia, it might an act passed by the legislature of New York, have been contended that the revising power of subsequent to the patent, did violate that con- this court, under the fenty-fifth section of the tract. Under that act, commissioners were ap-judiciary act, could be exercised. In such a pointed to investigate the contending titles to all case the decision would have been against the the lands held under such patents as that granted express provision of the ordinance in favour of to John Cornelius, and by their proceedings, liberty; and on that ground, if that instrument without the aid of a jury, the title of the defend- could be considered under the circumstances as ants in error was established against and defeat- an act of congress, within the 25th section, the ed the title under a deed made by John Corne-jurisdiction of the supreme court would be unlius, the patentee, and which deed was executed questionable. But the decision was not against, under the patent. By the court:-This is not a but in favour of the express provisions of the case within the clause of the constitution of the ordinance. Ibid. United States, which prohibits a state from passing laws which shall impair the obligation of contracts. The only contract made by the state, is a grant to John Cornelius, his heirs and assigns, of the land. The patent contains no covenant to do or not to do any further act in relation to the land; and the court are not inclined to create a contract by implication. The act of the legislature of New York does not attempt to take the land from the patentee; the grant remains in full effect; and the proceedings of the commissioners under the law, operated upon titles derived under and not adversely to the patent. Jackson v. Lamphire, 3 Peters' Rep. 280.

116. The mother of Aspasia, a coloured woman, was born a slave at Kaskaskias, in Illinois,

120. The general provisions of the ordinance of 1787, as to the rights of property, cannot give jurisdiction to the court. They do not come within the twenty-fifth section of the judiciary act. Ibid.

121. The case of Fisher's lessee v. Cockerell, was a writ of error to the court of appeals of the state of Kentucky, to review a decision of that court, affirming a judgment of the Union county court of that state, as to the validity of a law of that state, called the occupying claimant law. The validity of the law rested upon the question of its opposition to the compact between Virginia and Kentucky, relative to lands originally in Virginia, and the compact of the state of Kentucky. The proceedings of the court of Union

Appellate Jurisdiction, as affected by the Amount or Value in Controversy in the Cause.

county did not show that the compact was brought before the court, and the allegation that the plaintiff relied on the compact between those states, was first made in the court of appeals. In the court of Union county, the question of the validity of the compact was not presented. Held, that this was not a case for a writ of error to the supreme court, under the 25th section of the judiciary act of 1789. Lessor of Fisher v. Cockerell, 5 Peters, 248.

122. In delivering the opinion of the supreme court in the case of Fisher v. Cockerell, Mr. Chief Justice Marshall said: "In the argument, the court has been admonished of the jealousy with which the states of the Union view the revising power, intrusted by the constitution and laws of the United States to this tribunal. To observations of this character the answer uniformly has been, that the course of the judicial department is marked out by law: we must tread the direct and narrow path prescribed for us. As this court has never grasped at ungranted jurisdiction, so it will never, we trust, shrink from that which is conferred upon it." Ibid.

249.

3. Appellate Jurisdiction, as affected by the Amount
or Value in Controversy in the Cause.
123. The words, "matter in dispute," in the
act of congress, respecting appeals to the su-
preme court of the United States, seem appro-
priated to civil causes, where the subject in con-
test is of a value beyond the sum mentioned in
the act. But in criminal cases the question is,
the guilt or innocence of the accused; and al-
though he may be fined upwards of one hundred
dollars, yet that is, in the eye of the law, a pun-
ishment for the offence, and not the particular
object of the suit. U. S. v. Moore, 3 Cranch,
159; 1 Cond. Rep. 480.

124. The verdict or judgment does not ascertain the value of the matter in dispute between the parties. To determine this, recurrence must be had to the original controversy; to the matter in dispute when the action was instituted. The descriptive words of the statute, regulating the jurisdiction of the supreme court in writs of error and appeals, point emphatically to this criterion; and in common understanding, the penalty of the bond, and not the thing paid, constitutes the matter in dispute between the parties. The nature of the case must guide the court, and whenever the law makes a rule it must be obeyed. Wilson v. Daniel, 3 Dall. 401; 1 Cond. Rep. 185.

125. Where the value of the matter in dispute did not appear in the record, in a case brought up by writ of error, the court allowed affidavits to be taken to prove the same, on notice to the opposite party. The writ of error not to be a supersedeas. Course v. Stead's Ex'r., 4 Dall. 22; 1 Cond. Rep. 217. Williamson v. Kincaid, 4 Dall. 20; 1 Cond. Rep. 215.

126. The supreme court will permit viva voce testimony to be given of the value of the matter in dispute, in a case brought up on a writ of error or by appeal. The United States v. The Brig Union et al., 4 Cranch, 216; 2 Cond. Rep. 91.

127. After deciding the value of the sum in controversy, by the weight of the evidence before the court, the court will not continue the cause for the party to produce further evidence on the subject. Ibid.

128. The plaintiff below claimed more than 2000 dollars, in his declaration, but obtained a verdict for a less sum. The appellate jurisdiction of the supreme court depends on the sum or value in dispute between the parties, as the case stands upon the writ of error in this court; not on that which was in dispute in the circuit court. Gordon v. Ogden, 3 Peters, 33.

129. If the writ of error be brought by the plaintiff below, then the sum the declaration shows to be due may still be recovered, should the judgment for a smaller sum be reversed; and consequently the whole sum claimed is in dispute. Ibid.

130. But if the writ of error be brought by the defendant in the original action, the judgment of the supreme court can only affirm that of the circuit court, and consequently the matter in dispute cannot exceed the amount of that judg ment. Nothing but that judgment is in dispute between the parties. Ibid.

131. Where the verdict for the plaintiff in the circuit court is for a less amount than $2000, and the defendant prosecutes the writ of error, the supreme court has no jurisdiction; although the demand of the plaintiff in the suit exceeds $2000. Smith v. Honey, 3 Peters, 462.

132. Where the action is in foreign money, and the value of the money is not averred, the verdict of the jury finding the value, will fix the same for jurisdiction. Brown v. Barry, 3 Dall. 365; 1 Cond. Rep. 165.

133. The appraisement of property in controversy, made by order of the district court, by three sworn appraisers, is not conclusive evidence of the value; but it is better evidence than the opinion of a single witness, examined viva voce in open court. The United States v. The Brig Union, 4 Cranch, 216; 2 Cond. Rep. 91.

134. In replevin, if it be goods distrained for rent, the amount for which the avowry is made is the value in controversy; and if the writ be issued to try the title to the property, it is in the nature of detinue, and the value of the article replevied is the value of the matter in controversy, so as to determine whether or not the supreme court has jurisdiction. Peyton v. Robertson, 9 Wheat. 527; 5 Cond. Rep. 660.

135. The value of the interest a guardian has in a minor's estate, is not the value of the estate, but that of the office of guardian. It has no dis tinct value amounting to a sufficient sum to give jurisdiction in an appeal from the circuit court of Alexandria to the supreme court. Ritchie v. Mauro, 2 Peters, 243.

136. In an action of trover, if the judgment below be in favour of the defendant, the value of the matter in dispute upon the writ of error in the supreme court of the United States, is the sum claimed as damages in the declaration. Cooke v. Woodrow, 5 Cranch, 13; 2 Cond. Rep. 173.

Appearance.

137. Upon a writ of error to the circuit court | of 24th September, 1789, which relates to a ser for the District of Columbia, the supreme court vice of process, is not the denial of jurisdiction, has no jurisdiction if the sum awarded be less than one hundred dollars; although a greater sum may have been originally claimed. [Note. -On the 2d April, 1816, congress passed an act limiting the jurisdiction of the supreme court in cases of appeal in the District of Columbia, to sums exceeding one thousand dollars, unless in some cases, on the special allowance of a justice of the supreme court.] Wise & Lynn v. The Columbia Turnpike Company, 7 Cranch, 276; 2 Cond. Rep. 489.

138. In deciding whether the matter in dispute be sufficient to sustain the jurisdiction of the supreme court, it will look to the sum due upon the condition of the bond, and not upon the penalty. The U. S. v. M'Dowell, 4 Cranch, 316; 2 Cond. Rep. 122.

139. District of Columbia. The plaintiff claimed, in his declaration, the sum of one thousand two hundred and forty-one dollars, and laid his damages at one thousand dollars; a general verdict having been given against him, the matter in dispute is the sum he claims. The court cannot judicially take notice, that by computation, it may possibly be made out as matter of inference, from the plaintiff's declaration, that the claim may be less than one thousand dollars; much less can it take such notice in a case where the plaintiff might be allowed interest by a jury, so as to swell the claim beyond one thousand dollars. Scott v. Lunt's Adm'r., 6 Peters, 349.

140. The declaration was for a balance of accounts of nine hundred and eighty-eight dollars and ninety-four cents, and the ad damnum was laid at two thousand dollars. The bill of exceptions showed that the United States claimed interest on the balance due them. Under such circumstances, it is no objection to the jurisdiction, that the bill of exceptions was taken by the counsel for the United States, to a refusal of the court to grant an instruction asked by the United States, which was applicable to certain items of credit only claimed by the defendant, which would reduce the debt below the sum of one thousand dollars. The court cannot judicially know what influence that refusal had upon the amount required to give the supreme court jurisdiction, on a writ of error to the circuit court of the District of Columbia. The United States v. M'Daniel, 7 Peters, 1.

141. In cases where the demand is not for money, and the nature of the action does not require the value of the thing demanded to be stated in the declaration; the practice of the supreme court and of the courts of the United States has been, to allow the value to be given in evidence. Ex parte Bradstreet, 7 Peters, 634. See SUPREME COURT OF THE UNITED STATES.

APPEARANCE.

1. An appearance, by attorney, cures all irregularity in the original process. Knox et al. v. Sumners et al., 3 Cranch, 496; 1 Cond. Rep. 607.

2. The eleventh section of the judiciary act

but the grant of a privilege to the defendant not to be sent out of the state where he resides, unless he shall be served with process in the state where the suit is brought. But the defendant may waive that privilege, by a voluntary appearance: yet, if he plead the fact of his not having been served with process within the state where the cause has been commenced, and the cause is set down for a hearing on this plea, on the equity side of the court, the docket entries, showing a prior appearance by a solicitor of the court, cannot be taken notice of. Harrison et al. v. Thomas Rowan and Wife, 1 Peters' C. C. R. 489. 3. Where, in a suit against a state, process having been duly served, the state neglected to appear, this court will proceed ex parte. Huger v. The State of South Carolina, 3 Dall. 339.

4. Where a citation has not been served thirty days before the session of the supreme court, the court will not take up the cause until the thirty days have expired, unless the defendant in error shall appear. Lloyd v. Alexander, 1 Cranch, 365; 1 Cond. Rep. 334.

5. Where there is no appearance for the plaintiff in error in the supreme court, the defendant may have the plaintiff called, and dismiss the writ of error, or may open the record, and pray for an affirmance; and in such case, costs go of course. Montalet v. Murray, 3 Cranch, 249; 1 Cond. Rep. 516.

6. Where a writ of error is served, when in full force, and the writ is returned, though not at the first term, the appearance of the defendant in error waives all objection to the irregularity of the return. Wood v. Lide, 4 Cranch, 180; 2 Cond. Rep. 76.

7. The appearance of the defendants to a foreign attachment in a circuit court of the United States, in a circuit where they do not reside, is a waiver of all objections to the non-service of process on them. Pollard v. Dwight, 4 Cranch, 421; 2 Cond. Rep. 157.

8. If two or more persons are sued in a joint action, the plaintiff cannot proceed to obtain judgment against one alone, but must wait until the others have been served with process, or have been proceeded against as far as the law authorizes, for the purpose of compelling a appearance. Barton v. Petit & Bayard, 7 Cranch, 194; 2 Cond. Rep. 471.

9. If the counsel on neither side appear when the cause is called, the writ of error will be dismissed. Rodford v. Craig, 5 Cranch, 289; 2 Cond. Rep. 260.

10. By the law of Virginia, the plaintiff is not bound to declare, until all the defendants have appeared, or the suit be abated as to such as have not appeared. Barton v. Petit & Bayard, 7 Cranch, 194; 2 Cond. Rep. 741.

11. At January term, 1831, an order was made, giving the state of New York leave to appear on the second day of that term, and answer the complainants' bill; and if there should be no appearance, that the court would proceed to hear the cause on the part of the complainants, and to decree on the matter of the

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