9. A motion to dismiss the complainants' bill, upon the ground that he had
parted with his interest, was properly overruled, because such assign-
ment was not made until after the time when the computation of profits
ended. lbid.
10. Although an irregularity in the citation may be cured by an appearance in
court, yet a defect in the writ of error, (such as not naming a return day
for the writ,) or an omission to file a transcript of the record at the term
next succeeding the issuing of the writ or the taking of the appeal, are
fatal errors, and the case must be dismissed for want of jurisdiction.
Carroll v. Dorsey, 204.
11. The defect of an irregular citation (being signed by the clerk of the court,
and not by the judge who allowed the writ of error) is cured by an ap-
pearance in this court; so that a motion to dismiss the writ, when made
at the term succeeding that at which the appearance was entered, comes
too late. Chaffee v. Hayward, 208.
12. No one can bring up, as plaintiff in a writ of error, the judgment of an
inferior court to a superior one, unless he was a party to the judgment
in the court below; nor can any one be made a defendant in the writ of
error who was not a party to the judgment in the inferior court. Payne
v. Niles, 219.
13. Therefore, where there was a judgment in the court below, and certain
persons intervened, whose petition for intervention was dismissed, they
have no right to sue out a writ of error from the judgment to which
they were not parties; nor was any process, upon their intervention,
served upon the original defendant. Ibid.
14. Where the judge files the statement of facts after the trial, nunc pro tunc, it
is reasonable to presume that he had been requested to do so at the trial.
McGavock v. Woodlief, 221.
15. The Circuit Court of the United States in Alabama, by a general rule,
adopted the practice of the State courts, which is regulated by a stat-
ute providing that no bill of exceptions can be signed after the adjourn-
ment of the court, unless with the consent of counsel, &c. United States
v. Breitling, 252.
16. But where a judge holding the Circuit Court in Alabama signed a bill of ex-
ceptions under special circumstances, after adjournment, and without the
consent of counsel, this court will consider the exception as properly
before it. It is in the power of a court to suspend its own rules, or except
a particular case from them, to subserve the purposes of justice. Ibid.
17. And the signature of the judge was attached to the bill, in conformity with
the decisions of this court. lbid.
18. The exception brings up the charge of the court to the jury, but not the
admission of evidence which was objected to on the trial, but to the ad-
mission of which no exception was noted. Ibid.
19. The charge of the court, being founded on a hypothetical state of facts of
which there was no evidence, was erroneous. Ibid.
20. Where a judgment of the Circuit Court, sitting in admiralty, was affirmed
here by a divided court, interest was not to be calculated upon the judg-
ment. Hemmenway v. Fisher, 255.
21. The eighteenth rule of the court never applied to cases in admiralty
which are brought up by appeal, and the rule itself is repealed by the
sixty-second rule. Ibid.
22. As the act of Congress passed on the 3d of March, 1851, does not specify the
time within which an appeal must be made to this court from the District
Courts of California, the subject must be regulated by the general law
respecting writs of error and appeals. Either party is at liberty, there-
fore, to appeal from such a decree within five years from the time of its
rendition. United States v. Pacheco, 261.
23. Under the sixty-third rule of this court, an appellee in a case from California
may docket and dismiss according to that rule; but a new appeal may
be taken at any time within five years, or it may be that the record may
be filed by the appellant at the same term at which a certificate or record
had been filed by the appellee, and the case dismissed. Ibid.
24. After a case has been thus docketed and dismissed at the instance of an
appellee who is a claimant of land, if a patent should be taken out, it will
still be subject to be reviewed by this court at any time within the five
years above mentioned. Ibid.
25. Where an appeal from a decree is taken within ten days from the rendition
of the decree, it is in time to operate as a upersedeas; and so, also, if taken
within ten days after the decree is settled and signed. Silsby v. Foote, 290.
26. A decision on a motion for a new trial, being addressed to the discretion of the
court, is no ground for a writ of error. Warner v. Norton, 448.
27. Exceptions must be taken or the points reserved whilst the jury are at the bar.
Barton v. Forsyth, 532.
28. An objection, that the executors of the assignee had distributed a portion
of the money in the regular course of administration, should have been
made when the cause was before this court upon its merits. After a
mandate has gone down, and the cause came before the Circuit Court
for a settlement of accounts, the objection comes too late. Williams v.
Gibbes, 535.
29. No objection can be made to the Circuit Court allowing a supplemental
answer to be filed when the mandate went down. It was like a petition
to bring before the court the facts, which were proper to be known
before instructions were given to the master as to the mode of settling
the accounts. Ibid.
30. An order of the Circuit Court to quash an execution, is not such a judg-
ment as can be reviewed in this court by a writ of error. McCargo v.
Chapman, 555.
31. Where there was an order of the Circuit Court to set aside a judgment upon
payment by the defendant of the costs which had accrued up to that
time, the plaintiffs' counsel, by not insisting upon the payment of such
costs, thereby impliedly waived the condition upon which the judgment
was to be vacated, and cannot proceed upon the judgment as being still
in force. Ransom v. New York, 581.
32. Other circumstances lead to the opinion that it was the understanding of
both sides that the judgment should be vacated. Ibid.
33. This court therefore overrule a motion for a mandamus directing the court
below to set aside the order vacating the judgment, or for a rule to show
cause why a mandamus should not issue. Ibid.
1. Every special verdict, in order to enable the appellate court to act upon it,
must find the facts on which the court is to pronounce the judgment
according to law, and not merely state the evidence of facts. In this
manner it becomes a part of the record. Suydam v. Williamson, 429.
2. Where there is no dispute in regard to the facts, and consequently no neces-
sity for any ruling of the court in admitting or rejecting evidence, the case
may be brought before an appellate court by a special verdict or an agreed
statement of facts. Ibid.
3. But in such a case, the previous rulings of the court upon questions of evi-
dence do not come before the appellate court, unless brought up by a bill
of exceptions. Ibid.
4. A special verdict requires the presence and assent of the court, and a bill of
exceptions must always be signed and sealed by the judge. Ibid.
STATE COURTS JUDGMENTS OF.
1. The courts of Pennsylvania have decided that a pre-emption right to islands
in the Susquehanna river could not be obtained by settlement before the
Revolution, and this court adopts their decision. Fisher v. Haldeman, 186.
2. Where there were proceedings in a State court between a bank, one of its
creditors, and one of its debtors, and the bank having failed, assigned its
assets to trustees, who intervened in the dispute between the other two
parties, the judgment of the State court against the intervenors must be
considered final, and a bill filed by them in the Circuit Court of the
United States must be dismissed. Ingraham v. Dawson, 486.
3. If there were irregularities in the proceedings of the State court, it was for that
court to correct them, had complaint been made at the proper time. Ibid
STATUTES-CONSTRUCTION OF.
See CONSTRUCTION.
1. By the eighth section of the act of Congress passed on the 30th of July,
1846, (9 Stat. at L., 42, 43,) it is declared that if the appraised value
of imports which have actually been purchased shall exceed by ten per
centum or more the vale declared on the entry, then, in addition to the
duties imposed by law on the same, there shall be levied, collected, and
paid, a duty of twenty per centum ad valorem on such appraised value.
Sampson v. Peaslee, 571.
2. The true construction of this section is, that the additional duty of twenty
per centum is to be levied only upon the appraised value, and not upon
charges and commissions added to it. Ibid.
3. The day of the sailing of a vessel from a foreign port is the true period of
exportation of goods. The Secretary of the Treasury so directed it to be
done, as he had a right to do by law; and this court concurs with him
in this, as being a correct exposition of the statute. Ibid.
4. Where an importation was alleged to be an unit, but divided into two in-
voices for the sake of convenience, and entered of different values, each
invoice must stand upon its own footing; and the whole cannot be aver-
aged, so as to avoid the additional duty which is levied upon one invoice
taken by itself. 1bid.
5. Where an examination made by the merchant appraiser was such as is
usually made in buying and selling hemp in bales, and was satisfactory
to the merchant appraiser, it was not open to the importer to show that
he adopted a mode of examination insufficient to detect fraudulent pack-
ing or diversities in the qualities of the different parts of the importa-
tion. Ibid.
1. A tender of the purchase-money of land held sufficient, although not precisely
within the time nor according to the terms of the contract. Secombe v.
Steele, 94.
1. Wnere a person was born at Goliad, then in the State of Coahuila and
Texas, being a part of the Republic of Mexico, which place was also the
domicil of her father and mother until their deaths, and was removed at
the age of four years, before the declaration of Texan independence, to
Matamoras, in Mexico, this person is an alien, and can sue in the courts
of the United States. Jones v. McMasters, 8.
2 Her allegiance remained unchanged, unless by her election, which it was
incumbent on the opposite party to show. Ibid.
3. According to general principles, mere alicnage did not forfeit a title to land
in Texas; and although the Constitution of Texas provided that no alien
should hold land in Texas, except by title emanating directly from the
Government of that Republic, yet it was afterwards declared that the
Legislature should, by law, provide a method for determining what lands
may have been forfeited or escheated. Ibid.
4. In the absence of such a legislative provision, a title emanating from the
Government of Mexico, anterior to Texan independence, is not forfeited.
Ibid.
5. In a court of law, where a grant from the Government is in regular form,
it is not proper to inquire into the voidability of the grant from equitable
considerations. Ibid.
6. By the laws of the Republic of Texas, no action would lie on a foreign
judgment, and all actions of debt were prescribed in four years. Bacon
v. Howard, 22.
7. When about to form a Constitution, for the purpose of becoming a State
of the Union, the Legislature passed a law permitting suits to be brought
on foreign judgments, but limiting them to sixty days when the judgment
was of four years standing and upward. Ibid.
8. The plaintiffs' bill attempted to avoid the effect of the last limitation as to
their judgment, which was more than four years old, on the ground
that they lived more than two thousand miles distant, and could not
know of the passage of the last act within time to prosecute their action.
Ibid.
9. Held, that the last-mentioned statute conferred a favor, and was not retro-
spective; and that plaintiff's action was barred, whether he knew of the
act or not. Ibid.
10. The Constitution of the United States does not restrain the right of each State
to legislate as to the remedy on suits on judgments in other States. Ibid.
11. Under the decisions of the courts of Texas, a survey made of land beyond the
limits of the surveyor's district, although invalid at the time, is ren-
dered good by the subsequent approval of the proper county surveyor.
This court adopts the rule. Doswell v. De La Lanza, 29.
12. Where patents for land in Texas were erroneously issued, it was proper to
cancel them. Ibid.
13. In the present case, the land granted in Texas was alleged to be within
the empresario contract of De Leon. After proof that many of the docu-
ments upon the subject were destroyed in the revolution, the court left
it to the jury to decide whether or not the land was thus situated. This
ruling was correct. White v. Burnley, 235.
14. The fact that the surveyor included more land than was called for, does not
avoid the grant. Whatever the State might do to annul it, third parties
have no right to consider it void. Ibid.
15. A grantee having been compelled to leave Texas, there was no evidence
of his voluntary and final abandonment of the country. As there was
no evidence, the jury could not express an opinion upon the subject. Ibid.
16. Nor was there any evidence which would justify the court in leaving it
to the jury to decide whether or not this grantee was an alien enemy
when he made a conveyance, he being then a resident of Louisiana.
The mere fact of L being a Spaniard was not sufficient for an inference
that he was an enemy of Texas. The averment in the deed that he was
a citizen of Mexico was not sufficient. Ibid.
17. Where a deed of land in Texas was executed in Louisiana, and recorded in a
notary's books, a copy of it which had been compared with the original
by a witness who was acquainted with the handwriting of the notary
(being dead) and the subscribing witness, was properly admitted in
evidence. It was also admitted as a record of another State. Ibid.
18. In order that the statute of limitations shall begin to run, the defendant,
claiming under a younger title to land which conflicts in part with an
elder title, should have been in actual possession of the part which was
overlapped by the elder title. Ibid.
19. The judge of the District Court of the United States in Texas had power to
order the record of a suit in which he was interested to be transmitted
to the Circuit Court of the United States in Louisiana. Spencer v. Lapsley,
264.
20. A plea in abatement, filed in connection with pleas in bar, was irregular;
and the refusal of the court below to allow the plea to be filed is not
subject to the review of this court. Ibid.
21. A contract for the sale of eleven leagues of land in Texas, issued be-
fore the revolution, and subsequently located within the colonizing_grant
of Austin and Williams, with their consent, and certified by the Secre-
tary of State, was good without the signature of the Governor. Ibid.
22. So far as the land was within the colonizing grant of Robertson, his con-
sent was not necessary, the term of his grant having expired. Ibid.
23. Where no organization of a colonial grant had taken place by the introduc-
tion of settlers, the land not occupied was open for public sale, with the
consent of the empresario, and the alcalde was a proper person to put the
purchaser in possession. Ibid.
24. That the survey was made before the order of survey was directed to the
surveyor, was not fatal to the grant. Any preuminary defects were cured
by the patent. The fairness of the grant cannot be investigated at law,
at the instance of a third party. Ibid.
25. A power of attorney, authenticated before a regidor, proved by the hand-
writing of the regidor and the assisting witnesses, held sufficient. Ibid.
WASHINGTON-CORPORATION OF.
1. The power granted by Congress to the corporation of the city of Washing-
ton, "to open and keep in repair streets, avenues, lanes, alleys, &c., agree-
ably to the plan of the city," includes the power to alter the grade or
change the level of the land on which the streets by the plan of the city
are laid out. Smith v. Corporation of Washington, 135.
2. If, in the exercise of this power, an individual proprietor suffers inconvenience
or is put to expense, the corporation are not liable in damages. Ibid,
1. A rule laid upon the district judge of the State of Texas, to show cause
why a mandamus should not be issued for him to allow an appeal in
a certain case; but upon an examination of the case, the mandamus
refused. 'Mussina v. Cavazos, 280.
1. Although an irregularity in the citation may be cured by an appearance in
court, yet a defect in the writ of error, (such as not naming a return day
for the writ,) or an omission to file a transcript of the record at the term
next succeeding the issuing of the writ or the taking of the appeal, are
fatal errors, and the case must be dismissed for want of jurisdiction
Carroll v. Dorsey, 204.
2. No one can bring up, as plaintiff in a writ of error, the judgment of an
inferior court to a superior one, unless he was a party to the judgment
in the court below; nor can any one be made a defendant in the writ of
error who was not a party to the judgment in the inferior court. Payne
v. Niles, 219.
3. Therefore, where there was a judgment in the court below, and certain
persons intervened, whose petition for intervention was dismissed, they
have no right to sue out a writ of error from the judgment to which
they were not parties; nor was any process, upon their intervention,
served upon the original defendant. Ibid.
4. Rulings of the court below, in admitting or rejecting evidence, can be
brought to this court for revision only by a bill of exceptions. Suydam
v. Williamson, 427.
5. Every special verdict, in order to enable the appellate court to act upon it,
must find the facts on which the court is to pronounce the judgment
according to law, and not merely state the evidence of facts. In this
manner it becomes a part of the record. I bid.
6. Where there is a bill of exceptions, the writ of error does not operate only
upon that part of the record. Wherever an error is apparent on the
record, it is open to revision, whether it be made to appear by a bill of
exceptions, or in any other manner. Ibid.
7. Where there is no dispute in regard to the facts, and consequently no neces-
sity for any ruling of the court in admitting or rejecting evidence, the
case may be brought before an appellate court by a special verdict or an
agreed statement of facts. Ibid.
8. But in such a case, the previous rulings of the court upon questions of ev!-
dence do not come before the appellate court, unless brought up by a bill
of exceptions. Ibid.
9. A bill of exceptions may include in its scope the rulings of the court as to
the admissibility of evidence, which a demurrer to evidence cannot do.
Ibid.
10. A demurier to evidence makes the evidence a part of the record. Ibid.
11 So where oyer of any instrument is prayed, or there is a demurrer to any
part of the pleadings. Ibid.
12. A writ of error operates only upon the record, and brings it into this court.
Ibid.
![[ocr errors]](https://books.google.co.id/books/content?id=j9AFAAAAYAAJ&hl=id&output=html_text&pg=PA641&img=1&zoom=3&q=duty&cds=1&sig=ACfU3U0iNnBYbkPgTXMip-HHs-mgTfiecw&edge=0&edge=stretch&ci=611,1323,6,7)
13. Therefore, where a paper was filed in the court below after the writ of
error was issued, which paper, purporting to contain all the evidence,
both admitted and rejected, was signed by the judge and certified to he
correct by the counsel of the appellee, and concluded as follows: "A
verdict was then, by direction of the court, taken for the plaintiffs for the
VOL. XX.
41
|