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suit calls for indemnity.' Reed v. North- by the court, of the difficulty of proving with field, 13 Pick. 94, 100, 23 Am. Dec. 662." definiteness in all cases the amount of damWhere the statute provides in terms, as ages which plaintiff really had suffered. the one before us does, for a recovery of dam- The court below was, as is stated in the[158' ages for an act which violates the rights of opinion, somewhat influenced in its decision the plaintiff and gives the right of action of this question by the belief that if this solely to him, the fact that it also provides that such damages shall not be less than a certain sum, and may be more, if proved, does not, as we think, transform it into a penal statute.

were not a penal statute there was no Federal statute of limitations applicable to it, and said that it could hardly be supposed that it was the intent of Congress to permit such a statutory rate of damages to run So, a statute which makes a person liable without Federal statutory limitation. If for his wrongful neglect or default by which there were no such Federal statute, then the the death of another person is caused, and state statute would apply. Although not which gives a right of action to the adminis- an action to recover a statutory penalty or trator for the benefit of the widow and next forfeiture, still, in the absence of any Fedof kin, to recover damages for the pecuniary eral statute of limitations, it would be liminjuries resulting from his death, thus alter-ited by the limitation existing for the class ing the common law and imposing a new lia-of actions to which it belongs, in the state bility, has been held by this court not to be where the action was brought. Campbell penal, and to be enforceable in a state other v. Haverhill, 155 U. S. 610. 614, 39 L. ed. than the state in which the statute was 280, 281, 15 Sup. Ct. Rep. 217. [157]*passed, and in which the wrongful act and death occurred. Dennick v. Central R. Co. 103 U. S. 11, 26 L. ed. 439; Texas & P. R. Co. v. Cox, 145 U. S. 593, 36 L. ed. 829, 12 Sup. Another objection made is that § 4966 renOt. Rep. 905; Stewart v. Baltimore & O. R. ders defendant liable only when substantialCo. 168 U. S. 45, 42 L. ed. 537, 18 Sup. Ct.ly the whole of a copyrighted play is proRep. 105. duced, and not when merely a single incident in one of the acts is represented.

Although punishment, in a certain and very limited sense, may be the result of the statute before us so far as the wrongdoer is concerned, yet we think it clear such is not its chief purpose, which is the award of damages to the party who had sustained them, and the minimum amount appears to us to have been fixed because of the inherent difficulty of always proving by satisfactory evidence what the amount is which has been actually sustained.

We think the plaintiff in error fails to sustain his first objection to the judgment herein.

In the equity suit between these parties, already referred to, the complainant therein alleged that he had a copyright of the play "Under the Gaslight," in which was the railroad scene which made up the substantial value of the play and the one upon which the profits of the production of the play depended, and that the defendant had infringed upon the complainant's copyright by producing that same railroad scene in the defendant's play of "After Dark."

The answer of the defendant put in issue the existence and validity of complainant's ccpyright, denied any infringement whatev er, and also raised the question whether there could be any infringement where the only part of plaintiff's play that was produced was the railroad scene as described.

The English statute of 3 & 4 Wm. IV. chap. 15, entitled, "An Act to Amend the Laws Relating to Dramatic Literary Property," by its 2d section provides that a person who wrongfully produces and represents a dramatic composition "shall be liable for each and every such representation to the payment of an amount not less than forty shillings, or to the full amount of the benefit Upon the trial of the issues the complainor advantage arising from such representa- ant succeeded, and obtained a decree which tion, or the injury or loss sustained by the established the validity of his copyright, plaintiff therefrom, whichever shall be the and determined that the railroad scene in the greater damages, to the author or other pro- complainant's play, apart from the dialogue prietor of such production so represented." which accompanied the scene, was a dramat In Chatterton v. Cave, L. R. 3 App. Cas. ic composition, and entitled to protection un483, 492, the court in speaking of this pro-der the copyright laws. Daly v. Webster, 1 vision for damages said that the same "was U. S. App. 573, 56 Fed. Rep. 483, 4 C. C. A. no doubt fixed, because of the difficulty of 10. It determined also that there could be[159] proving with definiteness what amount of an infringement of the copyright when the actual damage had been sustained by per- only part of plaintiff's play that was prohaps a single performance at a provincial duced was the railroad scene, and that the theater of a work belonging to a plaintiff. defendant had in that manner infringed the while at the same time his work might be copyright of the plaintiff. An injunction seriously depreciated if he did not establish was decreed and a reference made to the his right as against all those who infringed master to ascertain the number of times, etc., upon it." This does not look as if that that the infringement had occurred. statute were regarded by the English courts as one of a penal nature, but, on the contrary, as one of a remedial kind providing for the recovery of the damages sustained by the plaintiff, and providing for the recovery of a minimum sum for the reason, as stated

In the opinion of the court, the case of Daly v. Palmer, 6 Blatchf. 256, Fed. Cas. No. 3,552, where the same question arose in regard to the same scene, was referred to and followed. The judgment record in the equity suit was introduced in evidence in

ure.

was

this case, and it was conclusive upon the pendent evidence that the recovery matters which had been in issue in the suit granted. There was no error in this procedas between these parties, and neither of them can ever again raise such questions The plaintiff in error further claimed that between themselves. Southern P. R. Co. v. the plaintiff below, by first proceeding in United States, 168 U. S. 1, 42 L. ed. 355, 18 equity for an injunction, and incidentally Sup. Ct. Rep. 18. We have, therefore, the for an accounting of profits, made an elec fact conclusively established by that record tion to recover profits, which effectually that this railroad scene was a dramatic barred him from a recovery of damages uncomposition, protected by the plaintiff's der the statute. copyright. The section (4966) of the Re

The equity action was brought to enjoin vised Statutes covers such a case. Any the defendant from performing the play of person publicly performing or representing "After Dark" with the railroad scene in it, any dramatic composition protected by taken from the plaintiff's play "Under the copyright, under the circumstances named Gaslight," and the injunction was asked for in that section, is liable for the damages sus-on the ground that plaintiff's injuries could tained by the proprietor, and as the fact is not be accurately ascertained or computed, conclusively established between these par- and compensation for such injury could not ties that the railroad scene is a dramatic be made by damages, and as a portion of the composition, and that it is protected by copy- relief complainant asked that the defendant right, the statute covers such a case, and be decreed to render a full and true account makes the plaintiff in error liable for the of all money and profits received by him. The production of that scene. decree in that case, however, did not direct the master to ascertain anything in *regard[161] to profits, no evidence was offered upon that subject, no finding was made thereon, and upon the coming in of the master's report no final judgment or decree for profits was ever asked or rendered.

The question, as an original one, of how far a copyright of a play protects any particular scene therein from being publicly produced or represented by another, aside from the dialogue contained in the play, is not before us, because the judgment in the equity suit between these same parties establishes the fact of the copyright, and also that the railroad scene is a dramatic composition protected by that copyright.

The plaintiff in error also contends that the trial court erred in admitting in evidence the record in the equity suit as proof of the material allegations of the complaint.

It does not appear herein that the record in the equity suit was admitted for the pur[160]pose stated. The record was admissible for the purpose of showing the validity of the copyright, and that the railroad scene was a dramatic composition protected by it. The bill of exceptions herein shows that the record was not used for the purpose of proving the number of times the play of "After Dark" had been represented containing the railroad scene, nor in any way to show the amount of damages which the plaintiff had sustained by reason of the defendant's infringement of his copyright.

The further objection, that the answer of the defendant in the equity suit was inadmissible for the purpose of proving any admission of the defendant therein which might tend to render him liable for a penalty or forfeiture, becomes immaterial by our holding that the statute under which this action is brought is remedial and not penal. It appears, however, in this record that, although the answer was received as a part of the whole record in the case between these parties in the equity suit, it was not, nor was any evidence given by defendant, used upon the final hearing, in any way whatever, for the purpose of showing any admission on his part, but, on the contrary, evidence outside and independent of any admission or evidence of the defendant was produced, and it was with reference wholly to such inde

In view of these facts, we think there was no election of an inconsistent remedy by the plaintiff in the action which would bar him from the maintenance of this action for the recovery of damages under the section of the Revised Statutes before referred to.

Conceding that he might in the equity suit have recovered profits if there had been an accounting concerning the same, and that a decree for their recovery would be a bar to a proceeding under the statute, yet the plaintiff was not bound to take such remedy; and when in fact he did not take it, and there was no accounting for profits in the equity suit, no decree made in regard to them and no recovery had, we see nothing to prevent the plaintiff in this action from recovering under the statute the damages which he has sustained by reason of the infringement of his copyright by the defendant.

Other objections were taken by the plaintiff in error upon questions of evidence which do not call for special consideration. They were properly disposed of by the court below.

Our ruling in this case, if it had obtained upon the trial, might have permitted a larger recovery than the plaintiff secured, because, the statute upon which the action is founded not being of a penal character, the two years' statute of limitations to which the plaintiff was limited in his recovery does not apply. But as the plaintiff did not seek to review the correctness of the decision of the trial court, and contented himself with the recovery actually obtained, his execu tors have now no cause of complaint on that account and they assert none.

Upon a full review of the case, we are of opinion that there was no error committed prejudicial to the plaintiff in error, and the judgment is therefore affirmed.

(162)CHARLES F. SIMMS and George T. Bros-trict courts of the territory, and the only proius, Executors of the Will of James T. visions thereof touching alimony, counsel Simms, Deceased, Appts.,

v.

HANNAH T. SIMMS, Appellee.

(See S. C. Reporter's ed. 162-172.) Appeal from decree for divorce and alimony -amount in controversy-remittitur erroneously ignored.

1. A controversy as to the continuance or dis-
solution of the status or relation of marriage
cannot be reviewed by the Supreme Court of
the United States on appeal from a territorial
court, as the matter is not one the value of
which can be estimated in money.
2. Questions of fact depending on the evidence
cannot be re-examined by the Supreme Court
of the United States on appeal from a terri-

torial court.

3. A decree for alimony and counsel fees, al-
though in one sense an incident to a suit for
divorce, if it is a distinct and severable final
Judgment for a sum of money of a sufficient
Jurisdictional amount, may be appealed from
the supreme court of a territory to the Su-
preme Court of the United States.
4. The absence of the clerk's signature and the
seal of his office from a blank attestation of
a release of part of a judgment, which is
otherwise duly executed according to the re-
quirements of the Arizona Revised Statutes,
authorizing it to be filed in the supreme court,
will not prevent the release from being valid
and effective.

fees, or costs are copied in the margin.†

Pending this suit, the wife, by her counsel, moved the court to order the husband to pay her the sum of $5,000 as provisional alimony to enable her to employ counsel and defend the suit. The court made no order on the motion until its final decision of the cause upon its merits; and then, on a review of the whole evidence (which had been taken by a referee and made part of the record), held that the suit could not be maintained, overruled a motion for a new trial, allowed a bill of exceptions, and by a decree entered June 13, 1896, adjudged that the complaint be dismissed and the issues therein decided in favor of the defendant, and that she recover $750 counsel fees, and $150 a month for her maintenance from December 14, 1893, amounting in all to the sum of $5,250, exclusive of costs. On June 30, 1896, the husband appealed to the supreme court of the territory, and gave bond to prosecute his appeal.

*The record of the supreme court of Arizona[164) (a copy of which, duly certified by its clerk, was transmitted to this court) stated that on the 11th and 13th days of January, 1897, respectively, each described as "being one of the judicial days of the January term, 1897, of the supreme court of Arizona," orders were made fixing the times of filing briefs. record then stated that "on the 26th day of January, 1897, a release of part of the judgAn appeal from a decree of a territorial ment of the lower court for alimony was filed court, which is for more than the jurisdic-in said court in said cause by said appellee,"

tional amount, will not be dismissed because
the decree would have been for less than the
jurisdictional amount if the territorial court
had not erroneously disregarded a remittitur
or release of part of the recovery; but the de-
cree will be reviewed only to the extent of
affirming the validity of the release or remit-
titur, and, thus modified, will be affirmed.
[No. 16.]

Bubmitted October 10, 1899.
vember 20, 1899.

The

and set forth a copy thereof, by which it appeared to have been signed by her attorneys of record, with no other attestation than this Clerk blank form: "Attest, of the Supreme Court of Arizona." And the release was indorsed by the clerk as filed on that day. By the release so filed and recorded, the wife "remits, from the judgment for alimony and counsel fees recovered by Decided No- the said defendant and appellee against the plaintiff and appellant herein in this cause in the district court, all of the said judgment for alimony and counsel fees in excess of the sum of $5,000, to wit, the sum of $250."

A
PPEAL from a judgment of the Supreme
Court of the Territory of Arizona af-
firming a judgment for alimony in a suit for
divorce, and erroneously disregarding a re-
mittitur. Modified and affirmed.

Statement by Mr. Justice Gray:
The suit was commenced by a complaint
filed October 6, 1894, in a district court of
the territory of Arizona, by a husband
[163] against his wife for a divorce from the bond
of matrimony for the cause of desertion on
and ever since December 18, 1893. The wife's
answer denied the desertion alleged, and set
up desertion by the husband on and ever
since December 14, 1893, as well as cruelty
on his part.

The Revised Statutes of 1887 of the territory of Arizona, title 34, chap. 4, vest the jurisdiction of suits for divorce in the dis

NOTE-As to review by the United States Supreme Court of territorial decisions, see note to Miners' Bank v. State es rel. District Prosecuting Attorney, 13 L. ed. U. S. 867.

The provisions of the Revised Statutes of

2114. The court pronouncing a decree of divorce from the bonds of matrimony shall also decree and order a division of the estate of the

parties in such a way as to the court shall seem just and right, having due regard to the rights of each party and their children, if any; provided, however, that nothing herein contained shall be construed to compel either party to de

vest him or herself of the title to separate prop

erty."

"2120. If the wife, whether complainant or defendant, has not a sufficient income for her maintenance during the pendency of the suit for a divorce, the judge may, either in term time or in vacation, after due notice, allow her a sum for her support in proportion to the

means of the husband, until a final decree shall be made in the case."

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may award costs to the party in whose behalf the sentence or decree shall pass, or that each party shall pay his or her own costs, as to the court shall appear reasonable." 115

Arizona of 1887, on the subject of the right of a party to remit part of the sum awarded by verdict or judgment, are copied in the margin.t

[165] *On January 30, 1897, the case was submitted on briefs to the supreme court of the territory, and on February 23, 1897, that court affirmed the judgment of the district court for $5,250. The husband took an appeal to this court, which has been prosecuted by his executors since his death; and the whole case was submitted to this court on briefs.

| Gold L. Ins. Co. v. Nichols, 109 U. S. 232, 27
L. ed. 915, 3 Sup. Ct. Rep. 120; First Nat.
Bank v. Redick, 110 U. S. 224, 28 L. ed. 124,
3 Sup. Ct. Rep. 640; Texas & P. R. Co. v.
Horn, 151 U. S. 110, 38 L. ed. 91, 14 Sup.
Ct. Rep. 259.

*Mr. Justice Gray, after stating the case[165] as above, delivered the opinion of the court: The motion to dismiss this appeal for want of jurisdiction is made upon two grounds: 1st. That the decree appealed from is a decree dismissing a suit for divorce, and awardThe appellee moved to dismiss the appealing to the appellee alimony and counsel fees 2d. That the matter in for want of jurisdiction, "because the judg. pending that suit.

ment or decree, from which said appeal pur-dispute does not exceed the sum of $5,000 ex-
ports to have been taken, is the judgment clusive of costs.
or uecree of the supreme court of one of the
territories of the United States, to wit, the
supreme court of the territory of Arizona,
affirming a judgment or decree of a district
court of said territory, dismissing a bill for
divorce brought by said appellant against
said appellee in said district court, and
awarding appellee alimony and counsel fees
pendente lite; and for the further reason
that the matter in dispute does not exceed
the sum of $5,000 exclusive of costs."

Mr. L. E. Payson submitted the cause for appellants.

Messrs. A. H. Garland and R. C. Garland filed a brief for appellants in opposition to

motion to dismiss:

This release, or attempted release, was made after the case was closed and after it had been appealed in due form of law and it is submitted that the jurisdiction of the court had ended for all purposes; that the jurisdiction had attached in the appellate court and the supposed order granting the release was absolutely void.

Keyser v. Farr, 105 U. S. 265, 26 L. ed. 1025; Coates Bros. v. Wilkes, 94 N. C. 174; Stone v. Spillman, 16 Tex. 432; Levi v. Karrick, 15 Iowa, 444; Penrice v. Wallis, 37 Miss. 172; Skinner v. Bland, 87 N. C. 168.

Mr. William H. Barnes submitted the cause for appellee:

Where a judgment is reduced by a remittitur to $5,000 or less, this court is without jurisdiction.

Thompson v. Butler, 95 U. S. 694, 24 L. ed. 540: Opelika City v. Daniel, 109 U. S. 108, 27 L. ed. 873, 3 Sup. Ct. Rep. 70; Alabama

817. Any party in whose favor a verdict or judgment has been rendered [in the district court may in open court remit any part of such verdict or judgment, and such remitter shall be noted on the docket and entered in the minutes, and execution shall thereafter issue for the balance only of such judgment after deducting the amount remitted.

"818. Any party may make such remitter In vacation by executing and filing with the clerk release in writing signed by him or his attorney of record and attested by the clerk with the seal of his office: such release shall constitute a part of the record of the cause, and any execution thereafter issued shall be for the balance only of the judgment after deducting the amount remitted."

"822. A remitter made as provided in any of

The Revised Statutes of the United States conferred on this court jurisdiction, upon writ of error or appeal, to review and re-[166] verse or affirm the final judgments and de crees of the supreme court of any territory except Washington, "in cases where the val ue of the matter in dispute [or as elsewhere described, "where the value of the property or the amount in controversy"], to be ascertained by the oath of either party, or of other competent witnesses, exceeds one thousand dollars," and, in the territory of Washington, two thousand dollars; and also in all cases in any territory, arising under the Constitution and laws of the United States, or in which the Constitution or a statute or treaty of the United States is brought in question; and in all cases upon writs of ha beas corpus involving the question of personal freedom. Rev. Stat. §§ 702, 1909-1911. By the act of March 3, 1885, chap. 355, except in cases in which is involved the validity of a patent or a copyright, or in which is drawn in question the validity of a treaty or statute of, or an authority exercised under, the United States, "no appeal or writ of error shall hereafter be allowed from any judgment or decree in any suit at law or in equity in the supreme court of the District of Columbia, or in the supreme court of any of the territories of the United States, unless the matter in dispute, exclusive of costs, shall exceed the sum of five thousand dol lars." 23 Stat. at L. 443. This act has not repealed the provision of the Revised Statutes giving an appeal from the supreme court of a territory in cases of habeas corpus. Gonzales v. Cunningham, 164 U. S. 612, 41 L. ed. the preceding sections shall, from the making thereof, cure any error in the verdict or judg ment by reason of such excess."

"945. If in any judgment rendered in the district court there shall be an excess of damages rendered, and before the plaintiff has entered a release of the same in such court in the manner provided by law, such judgment shall be removed to the supreme court, it shall be lawful for the party in whose favor such excess of damages has been rendered to make such release in the supreme court in the same manner as such release is required to be made in the district court: and upon such release being filed in said supreme court, the said court, after revising said judgment, shall proceed to give such judgment as the court below ought to have given if the release had been made and fled therein."

175 U. S.

572, 17 Sup. Ct. Rep. 182. The act of March | 3, 1891, chap. 517, transferring to the circuit courts of appeals the appellate jurisdiction from the supreme courts of the territories in cases founded on diversity of citizenship, or arising under the patent, revenue, or criminal laws, or in admiralty, has not otherwise affected the appellate jurisdiction of this court from the territorial courts. 26 Stat. at L. 828, 830; Shute v. Keyser, 149 U. S. 649, 37 L. ed. 884, 13 Sup. Ct. Rep. 960; Aztec Min. Co. v. Ripley, 151 U. S. 79, 38 L. ed. 80, 14 Sup. Ct. Rep. 236.

But those considerations have no application to the jurisdiction of the courts of a territory, or to the appellate jurisdiction *of this[168] court over those courts. In the territories of the United States, Congress has the entire dominion and sovereignty, national and 10cal, Federal and state, and has full legislative power over all subjects upon which the legislature of a state might legislate within the state; and may, at its discretion, intrust that power to the legislative assembly of a territory. Shively v. Bowlby, 152 U. S. 1, 48, 38 L. ed. 331, 349, 14 Sup. Ct. Rep. 548, Under the existing acts of Congress, there- and cases cited; Utter v. Franklin, 172 U. S. fore (except in the cases so transferred to the 416, 423, 43 L. ed. 498, 500, 19 Sup. Ct. Rep. circuit courts of appeals, and in cases of ha- 183. In the exercise of this power, Congress beas corpus, cases involving the validity of has enacted that (with certain restrictions a copyright, and cases depending upon the not affecting this case) "the legislative pow Constitution or a statute or treaty of the er of every territory shall extend to all JUnited States-none of which classes in- rightful subjects of legislation not inconsistcludes the case at bar), the appellate juris- ent with the Constitution and laws of the diction of this court to review and reverse or United States." Rev. Stat. § 1851; act of affirm the final judgments and decrees of the July 30, 1886, chap. 818, 24 Stat. at L. 170. supreme court of a territory includes those The power so conferred upon a territorial ascases, and those cases only, at law or in equi-sembly covers the domestic relations, the setty, in which "the matter in dispute, exclusive tlement of estates, and all other matters of costs, shall exceed the sum of five thousand dollars."

In order to sustain the appellate jurisdiction of this court, under such an enactment, the matter in dispute must have been money, or something the value of which can be estimated in money. Kurtz v. Moffitt, 115 U. S. 487, 495, 496, 29 L. ed. 458, 459, 6 Sup. Ct. Rep. 148, and cases there cited; Durham v. Seymour, 161 U. S. 235, 40 L. ed. 682, 16 Sup. Ct. Rep. 452; Perrine v. Slack, 164 U. 8. 452, 41 L. ed. 510, 17 Sup. Ct. Rep. 79.

In support of the motion to dismiss this appeal because the decree below concerned divorce and alimony only, the appellee relied on Barber v. Barber, 21 How. 582, 16 L. ed. 226. In that case, a majority of this court held that a wife who had obtained against her husband, in the courts of the state of their domicil, a decree divorcing them from bed and board and awarding alimony to her, might sue the husband for such alimony in a circuit court of the United States held in a state in which he had since become domiciled. Mr. Justice Wayne, in delivering judgment, said: "We disclaim altogether any jurisdiction in the courts of the United States upon the subject of divorce, or for the allowance of alimony, either as an original proceeding in chancery or as an incident to divorce a vinculo, or to one from bed and board." 21 How. 584, 16 L. ed. 226. And from that proposition there was no dissent. It may therefore be assumed as indubitable that the circuit courts of the United States have no jurisdiction, either of suits for divorce, or of claims for alimony, whether made in a suit for divorce, or by an original proceeding in equity, before a decree for such alimony in a state court. Within the states of the Union, the whole subject of the domestic relations of husband and wife, parent and hild, belongs to the laws of the state, and not to the laws of the United States. Re Burrus, 136 U. S. 586, 593, 594, 34 L. ed. 500, 503, 10 Sup. Ct. Rep. 850.

which, within the limits of a state, are regu-
lated by the laws of the state only. Cope v.
Cope, 137 U. S. 682, C84, 34 L. ed. 832, 11
Sup. Ct. Rep. 222.

By the territorial statutes of Arizona, the original jurisdiction of suits for divorce is vested in the district courts of the territory; and their final judgments in such suits, as in other civil cases, may be reviewed by the supreme court of the territory on writ of error or appeal. Ariz. Rev. Stat. 1887, title 34, chap. 4; title 15, chap. 20.

As already observed, the motion to dismiss, in the case at bar, is made upon the twofold ground that the decree appealed from is one concerning divorce and alimony only, and that it is for no more than $5,000.

The decree of the supreme court of the territory in favor of the wife includes the dismissal of the husband's suit for a divorce from the bond of matrimony, and the award to the wife, upon her motion, of the sum of $5,250 for alimony and counsel fees.

So far as the question of divorce was ooncerned, the matter in controversy was the continuance or the dissolution of the status or relation of marriage between the parties, and the decree cannot be reviewed on this appeal, both because that was a matter the value of which could not be estimated in *money, and because the refusal of the di-[169) vorce involved no matter of law, but mere questions of fact, depending on the evidence, and which this court is not authorized to reexamine. Young v. Amy, 171 U. S. 179, 43 L. ed. 127, 18 Sup. Ct. Rep. 802.

The decree for alimony and counsel fees, although in one sense an incident to the suit for divorce, is a distinct and severable final judgment in favor of the defendant for a sum of money of a sufficient jurisdictional amount, and is therefore good ground of appeal, for the same reason that a judgment for or against the defendant upon a counterclaim of like amount would support the appellate jurisdiction. Dushane v. Benedict,

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