General Principles.

error issued by the clerk of a circuit court, in the form prescribed under the ninth section of the act of May 8, 1792; and it is not necessary that, in such case, the writ itself should state that it issued upon a final judgment, or that the court to which it issued, is the highest court in which a decision of the suit could be had. Buel v. Van Ness, 8 Wheat. 312; 5 Cond. Rep. 445.

29. A writ of error does not lie to the supreme court, to reverse the judgment of the circuit court, in a civil action which has been carried up to the circuit court from the district court, by writ of error. United States v. John Goodwin, 7 Cranch, 108; 2 Cond. Rep. 434.

30. The supreme court refused to reverse the decree of the circuit court of the county of Washington, although an error had been committed in proceeding under the mandate of the court, as the plaintiff could obtain no benefit from the reversal. Campbell's Ex'rs v. Pratt, 2 Peters, 354.

31. Generally speaking, matters of practice, in the inferior courts, do not constitute subjects on which errors can be assigned in an appellate court. Parsons v. Bedford, 3 Peters, 445.

32. The exercise of the discretion of the court below, in refusing or granting amendments of pleadings or motions for new trials, affords no grounds for a writ of error. In overruling a motion for leave to withdraw a replication and file a new one, the court exercised a new one; and the reason assigned, as influencing that discretion, cannot affect the decision. United States v. Buford. 3 Peters, 31.

writ of error. Louisiana. Parsons v. Armor and Oakey, 3 Peters, 425.

36. In a case which came before the supreme court, in which, on the principal objections to the judgment of the inferior court, a majority of the justices considered that there was no error; yet, as on other points in the cause, the minorities united in favour of reversal, the judgment was reversed. The court said, "Although on each of the principal objections relied on, as showing error in the proceedings of the district court, a majority of the members of this court think there is no error; yet the judgment of the district court must be reversed, as on the question of reversal the minorities unite and constitute a majority of the court." Smith v. The United States, 5 Peters, 295.

37. The defendants in the court below pleaded performance, and the plaintiffs alleged, as the breach, that at the time of the execution of the bond there were in the hands of Rector, as surveyor, to be applied and disbursed by him in the discharge of the duties of his office, for the use and benefit of the United States, divers sums of money, amounting, &c., and that the said Rector had not applied or disbursed the same, or any part thereof, for the use and benefit of the United States, as in the execution of the duties of his office he ought to have done. The jury found for the plaintiff, and assessed the damages for the breach of the condition at forty thousand dollars, and the judgment was entered "quod recuperet" the damages, not the debt. This judgment is clearly erroneous. Farrar and Brown v. The United States, 5 Peters, 373.

33. If a writ of error be brought by the defendant in the original action, the judgment of 38. It would seem, that in adopting this form the supreme court can only affirm that of the of rendering the judgment, the court below has circuit court, and consequently the matter in been misled by the application of the twentydispute cannot exceed the amount of that judg-sixth section of the act of 1789 to this subject. ment. Nothing but that judgment is in dispute between the parties. Gordon v. Ogden, 3 Peters, 34.

34. The supreme court has no authority, on a writ of error from a state court, to declare a state law void on account of its collision with a state constitution, it not being a case embraced in the judiciary act, which gives the power of a writ of error to the highest judicial tribunal of the state. Jackson v. Lamphire, 3 Peters, 280.

35. The record consisted of the petition, the answer, the whole testimony, as well depositions as documents, introduced by either party, and the fiat of the judge, that Armor, the plaintiff below, recover the debt as demanded. By the court:-The difficulty is to decide under what character we shall consider this reference to the revising power of the supreme court. If treated strictly as a writ of error, it is certainly not an attribute of that writ, according to the common law doctrine, to submit the testimony as well as the law of the case to the revision of the court; and then there is no mode in which the court can treat this case, but in the nature of a bill of exceptions. The court is not at liberty to treat this case as an appeal in a court of equity jurisdiction, under the act of 1803, because the party has not brought up his cause by appeal, but by

That section, if it sanctions such a judgment at all, is expressly confined to three cases, default, confession, and demurrer. Ibid.

39. The supreme court can only reverse a judgment when it is shown that the court below has erred. It cannot proceed upon conjecture of what the court below may have laid down for law: it must be shown, in order to be judged, what instructions were in fact given, and what were refused. Bradstreet v. Huntington, 5 Peters, 402.

40. On the reversal of an erroneous judgment, the law raises an obligation on the party to the record, who received the benefit of it, to make restitution to the other party for what he has lost. Sometimes this is done by a writ of restitution, without a scire facias, when the record shows the money has been paid; in other cases, a scire facias may be necessary to ascertain the amount. Bank of the U. States v. The Bank of Washington, 6 Peters, 8.

41. The court refused to quash a writ of error on the ground that the record was not filed with the clerk of the court until the month of June, 1832, the writ having been returnable to January term, 1832. The defendant in error might have availed himself of the benefit of the twentyninth rule of the court, which gave him the right

General Principles.

to docket and dismiss the cause. Pickett's Heirs | applied, by the statement, to the case. Crowell
v. Randell, 10 Peters, 368.
v. Legerwood et al., 7 Peters, 144.

48. The onus probandi of the amount in con. 42. The appropriate use of a writ of error, coram vobis, is to enable a court to correct its troversy, to establish the jurisdiction of the suown errors; those errors which precede the ren-preme court, on a case brought up by writ of dition of the judgment. In practice, the same error, is upon the party seeking to obtain the He may prove that the end is now generally attained by motion, sus- revision of the case. Foison, 10 Peters, 160. tained, if the case require it, by affidavits; and value exceeds two thousand dollars, exclusive have been errors and the latter mode has superseded the former in the of costs. Hagan v. 49. Although there may British practice. Ibid. imperfections in the record and proceedings in a case, in the circuit court, if the parties go to a trial in the case, they may be considered as waived: and they cannot constitute an objection to the judgment of the circuit court, after verdict, on a writ of error to the supreme court. Evans v. Gee, 11 Peters, 80.

43. In the circuit court for the district of Kentucky, a judgment in favour of the plaintiff in an ejectment, was entered in 1798, and no proceedings on the same until 1830, when the period of the demise having expired, the court, on motion, and notice to one of the defendants, made an order inserting a demise of fifty years. It 50. A writ of error was issued to "the judges having been afterwards shown to the court that the parties really interested in the land, when of the superior court for the county of Gwinnett, the motion to amend was made, had not been in the state of Georgia," commanding them to noticed of the proceeding, the court issued a send to the supreme court of the United States, writ of error coram vobis, and gave a judgment the record and proceedings in the said superior sustaining the same, and that the order extend- court of the county of Gwinnett, between the ing the demise should be set aside. From this state of Georgia, plaintiff, and Samuel A. Worcesjudgment a writ of error was prosecuted to this ter, defendant, on an indictment in that court. court; and it was held that the judgment on the The record of the court of Gwinnett was returned, writ of error coram vobis, was not such a judg-certified by the clerk of the court, and was also ment as could be brought up by a writ of error for decision to the supreme court. Ibid.

44. A writ of error, brought in the name of "Mary Deneale and others," was dismissed for irregularity; all the parties should have been named. A new one, in due form, may be brought. Deneale and others v. Stump's Executors, 8 Peters,

526.

45. Where there is no evidence tending to prove a particular fact, the court are bound so to instruct the jury, when requested; but they cannot legally give any instruction which shall take from the jury the right of weighing what effect An instruction to the evidence shall have. the jury, founded on part of the evidence only, is error. Greenleaf v. Birth, 9 Peters,

292.

46. It is incumbent on a plaintiff in error, to make out an alleged error, clearly and satisfactorily. Every reasonable intendment should be in favour of a judgment of a court. Ventress v. Smith, 10 Peters, 161.

2. That the

47. In order to bring a case for a writ of error,
or an appeal to the supreme court, from a court
of the highest jurisdiction of any of the states,
within the twenty-fifth section of the judiciary
act, it must appear on the face of the record: 1.
That some one of the questions stated in that
section did arise in the state court.
question was decided by the state court, as re-
quired in the same section. It is not necessary
that the question should appear on the record to
have been raised, and the decision made in di-
rect and positive terms, ipsissimis verbis; but it
is sufficient, if it appears by clear and necessary
intendment, that the question must have been
raised, and must have been decided, in order to
have induced the judgment. It is not sufficient
to show that a question might have arisen, or
been applicable to the case; unless it is farther
shown on the record that it did arise, and was

authenticated by the seal of the court. It was
returned with, and annexed to, a writ of error,
issued in regular form, the citation being signed
by one of the associate justices of the supreme
court, and served on the governor and attorney-
general of the state, more than thirty days be-
fore the commencement of the term to which
the writ of error was returnable. By the court:
-The judicial act, so far as it prescribes the
mode of proceeding, appears to have been liter-
ally pursued. In February, 1797, a rule was
made on this subject, in the following words:
"It is ordered by the court, that the clerk of the
court to which any writ of error shall be directed,
may make return of the same, by transmitting a
true copy of the record, and of all proceedings
in the same, under his hand and the seal of the
court." This has been done. But the signature
of the judge has not been added to that of the
clerk. The law does not require it. The rule
does not require it. Worcester v. The State of
Georgia, 6 Peters, 515.

51. The circuit court of Massachusetts has no cognizance of causes of admiralty and maritime jurisdiction, from the district court of Maine, except by appeal; and a writ of error therein will be quashed. M'Lellan v. The United States, 1 Gallis. C. C. R. 227.

52. It is error for the court to declare a question of law to be a question of fact. United States v. Carlton, 1 Gallis. C. C. R. 400.

53. Although an error appear on the record, yet, if in distinct pleading, a complete bar is shown to the action, the judgment must be affirmed. Ibid.

54. On a reversal of a judgment, in an action brought by writ of error from the district court of Maine, the circuit court of Massachusetts may, if justice require it, award a venire facias de novo, triable at the bar of the circuit court. United States v. Sawyer, 1 Gallis. C. C. R. 86.

General Principles.

73. A writ of error will not lie to the circuit court of the United States, to revise its decision in refusing to grant a writ of venditioni exponas, 62. The refusal of the circuit court to allow a issued on a judgment obtained in that court. A plea to be amended, or a new plea filed, or to writ of error does not lie in such a case. Boyle continue a cause, is not a cause of error. Mary-v. Zacharie and Turner, 6 Peters, 648. land Ins. Co. v. Hodgson, 6 Cranch, 206; 2 Cond. Rep. 347.

General Principles.

this case, is not final. The law authorizes the | upon suggestion of the attorney of the United court, at its discretion, as often as may be States, in a case to which the United States are necessary, to direct another inquisition to be not parties; but the court will award a mandataken." The order or judgment, therefore, mus, nisi, in the nature of a procedendo. Livquashing the inquisition, is in the nature of an ingston v. Dorgenois, 7 Cranch, 477; 2 Cond. order setting aside a verdict, for the purpose of Rep. 618. awarding a venire facias de novo. A writ of error will not lie to the supreme court, from such an order. The Chesapeake and Ohio Canal Company v. The Union Bank of Georgetown, 8 Peters, 259.

76. Where the court charged the jury that the defendant was entitled to no more than nominal damages in an action against the collector of the port of New York for detaining goods until they had greatly deteriorated, under a claim for higher duties than they were legally liable to pay; and the jury gave the plaintiff no more than nominal damages: it was held that a writ | of error would lie for the plaintiff to revise the opinion of the court. Tracy v. Swartwout, 10 Peters, 80.

84. Under the judiciary act of September 24, 1789, ch. 20, and the act of March 3, 1803, ch. 353, causes of admiralty and maritime jurisdic tion, or in equity, cannot be removed from the circuit to the supreme court, by writ of error. The San Pedro, 2 Wheat. 132; 4 Cond. Rep. 65.

85. If the heirs be made parties, by order of the court in which the suit is brought, and judg ment is entered against them by default, for want of a plea, upon a summons and count against the original defendant, they may sue out a writ of error, and reverse the judgment. Macker's Heirs v. Thomas, 7 Wheat. 530; 5 Cond. Rep. 334.

86. If judgment, in an action of trespass, be rendered against one defendant by default, and in favour of the other defendant, upon a plea, the former may, alone, bring a writ of error. Ibid.

77. The courts of Virginia have been very liberal in admitting any plea at the next term after an office judgment, which was necessary to bring forward the substantial merits of the 87. The defendant entered a plea of the case; but at a subsequent term, it is matter of statute of limitations to the case of the comdiscretion with the court, whether they will ad-plainants, and the plea was overruled. This is mit any plea at all. A writ of error will not lie not a final judgment, on which a writ of error in a case where this discretion has been exer- will lie. Rutherford v. Fisher, 4 Dall. 22; 1 cised. Jacob Resler v. James Shehee, 1 Cranch, Cond. Rep. 216. 110; 1 Cond. Rep. 259.

78. A writ of error does not lie at common law, on the refusal of the court to grant a new trial. United States v. Gibrit, 2 Sumner's C. C.

R. 19.

79. According to the constitution of the United States, no fact once tried by a jury shall be otherwise re-examined, than according to the rules of the common law." Ibid.

88. The refusal of the circuit court of the District of Columbia, to quash an execution issued by the mayor of Georgetown, on motion, is not a judgment on which a writ of error will lie. Mountz v. Hodgson et al., 4 Cranch, 324; 2 Cond. Rep. 127.

89. A writ of error will lie from the supreme court, upon the judgment of a circuit court, awarding a peremptory mandamus to restore to 80. No writ of error lies to a state court, un-office; but this can only be when the matter in der the twenty-fifth section of the judiciary act of 1789, unless there is something apparent on the record, bringing the case within the jurisdiction of the court, according to the provisions of that section. Inglee v. Coolidge, 2 Wheat. 363; 4 Cond. Rep. 155.

81. On a writ of error to a state court, under the twenty-fifth section of the judiciary act of 1789, it is sufficient to give the supreme court jurisdiction on the writ of error, if the record shows an act of congress was applicable to the case, and was misconstrued. Miller v. Nichols, 4 Wheat. 311; 4 Cond. Rep. 465.

82. If a party, in point of law, is entitled to a particular direction of the court, and the court refuse to give it, a writ of error may issue; although it may afterwards give a direction, which, by inference and argument, may be pressed to the same extent. The party has a right to a direct and positive instruction; and the jury are not to be left to believe in distinctions, where none exist, or to reconcile propositions by mere argument and inference. Livingston et al. v. Maryland Ins. Co., 7 Cranch, 506; 2 Cond. Rep. 589.

83. A writ of error does not lie to an order of the court below to stay the proceedings, finally, VOL. I.-53

controversy is sufficient to give jurisdiction to the court; and as nothing is in controversy but the office, its value must be ascertained by the salary. Columbian Ins. Co. v. Wheelwright, 7 Wheat. 534; 5 Cond. Rep. 334.

90. A writ of error will not lie to the judg ment of a circuit court, granting or refusing a motion to amend. Denn v. Craig, 9 Wheat. 576; 5 Cond. Rep. 687.

91. The allowance or disallowance of amendments, is not matter for which error lies. Chirac et al. v. Reinicker, 11 Wheat. 280; 6 Cond. Rep.

310.

92. If the writ of error be brought by the plaintiff below, then the sum which the decla ration shows to be due, may be still recovered, should the judgment for a smaller sum be re versed; and, consequently, the whole sum claimed is still in dispute. Gordon v. Ogden, 3 Peters, 34.

93. But if the writ of error be brought by the defendant on 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 judgment. Ibid.

94. The supreme court have not jurisdiction

4 D

Writs of Error under the Twenty-Fifth Section of the Judiciary Act of 1789.

in a case in which separate decrees have been entered in the circuit court for the wages of seamen; the decree in no one case amounting to two thousand dollars, although the amount of the several decrees together exceeded that sum; and the seamen in each case claimed under the same contract. Oliver v. Alexander, 6 Peters,

143.

95. The plaintiff, in the District of Columbia, 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, ad quod damnum. 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.

96. A writ of error to the circuit court is the proper process to correct the errors of the district court, in common law actions. United States v. Wonson, 1 Gallis. C. C. R. 5.

out on the transcript of the record as to enable the court to decide on any question in the case. The plaintiff in error is entitled to be heard, in order that he may show, if he can, that the error of which he complains is in the record; and whether it does so appear or not, is a matter which cannot be inquired into, in the form of a motion to dismiss a writ of error. Minor v. Tillotson, 17 Peters, 243.

100. If the instruction of the court be erroneous, yet if the instruction could have had no influence with the jury, it affords no ground for the reversal of the judgment. The United States v. Wright, 1 M'Lean, C. C. R. 509.

2. Writs of Error under the 25th Section of the Judiciary Act of 1789.

101. Where, on a writ of error to the high court of appeals of Maryland, the judgment there given, reversing the decision of the general court, is reversed in the supreme court of the United States, the plaintiff in error will be entitled to his costs in all the courts, and the mandate for execution issue to the general court. Clarke v. Harwood, 3 Dall. 342; 1 Cond. Rep. 157.

102. Under the twenty-fifth section of the judiciary act of 1789, ch. 20, giving an appellate 97. The mortgagees in Louisiana filed in the jurisdiction to the supreme court of the United circuit court their petition, stating the non-pay-States, from the final judgment or decree of the ment of the debt due on their petition, and that, highest court of law or equity of a state, the by the laws of Louisiana, the mortgage imports writ of error may be directed to any court in a confession of judgment, and entitled them to which the record and judgment on which it is to executory process, which they prayed for. With-act, may be found; and if the record has been out any process requiring the appearance of the mortgagors, one of whom resided out of the state, the judge ordered the executory process to issue. Two of the defendants, who were residents in the state, prosecuted a writ of error, on this order, to the supreme court of the United States. Held, that the order for executory process was not a final judgment of the circuit court, on which a writ of error could issue. Levy v. Fitzpatrick, 15 Peters, 167.

remitted by the highest court, &c., to another court of the state, it may be brought by the writ of error from that court. Gelston et al. v. Hoyt, 3 Wheat. 246; 4 Cond. Rep. 244.

103. The supreme court of the United States has not jurisdiction upon a writ of error to a state court, under the twenty-fifth section of the judiciary act of September 24, 1789, ch. 20, if the decision of the state court be in favour of the privilege claimed under the act of congress. Gordon v. Caldcleugh et al., 3 Cranch, 268; 1 Cond. Rep. 534.

104. In an action of ejectment between two citizens of the state where the lands lie, if the defendant sets up an outstanding title in a British subject, which he contends is protected by treaty, and that, therefore, the title is out of the plaintiff, and the highest state court decides against the title thus set up; it is not a case in which a writ of error lies to the supreme court of the United States. Owings v. Norwood's Lessee, 5 Cranch, 344; 2 Cond. Rep. 275.

98. As the debtors were not before the judge in the circuit court when he granted, in this case, the order for process, the order for the process could not be regarded as a final judgment, from which a writ of error could be prosecuted, under the twenty-second section of the judiciary act of 1789. By the laws of Louisiana, three days' notice of a sale under such process was required to be given to the debtors, or the sale would be utterly void. Upon that notice, the debtors had a right to come into court and file their petition, and set up, as matter of defence, everything that could be assigned for error in a 105. A case may be brought to the supreme court of errors; and they could pray for an in-court of the United States, from the highest junction in the circuit court, to stay the execu- court of law or equity in a state, under the tory process, till the matter of the petition could twenty-fifth section of the judiciary act of 1789, be heard and determined. In the proceeding ch. 20, by a writ of error issued by the clerk of on the petition and answer, the whole merits of a circuit court in the form prescribed under the the case between the parties, including the ne-ninth section of the act of May 8, 1792, ch. 137; cessary questions of jurisdiction, could be heard, and a final judgment rendered. Articles 738, 739, of the Louisiana code of practice. Ibid.

99. The court will not, on motion, dismiss a writ of error on the ground that the proceedings in the case from the circuit court are not so set

and it is not necessary that in such case, the writ itself should state that it issued upon a final judgment, or that the court to which it is issued is the highest court to which a decision of the suit could be had. Buel et al. v. Van Ness, 8 Wheat. 312; 5 Cond. Rep. 445.