Cornell University Law Library The Moak Collection PURCHASED FOR The School of Law of Cornell University And Presented February 14, 1893 IN HEnORY OF JUDGE DOUGLASS BOARDMAN FIRST DEAN OF THE SCHOOL By his Wife and Daughter A. M. BOARDMAN and ELLEN D. WILLIAMS Cornell University Library KF 101.8.A72 Cases summarily disposed of on motion in 3 1924 022 843 415 The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924022843415 CASES SUMMARILY DISPOSED OF ON MOTION UNITED STATES SUPREME COURXp C. H. ARMES, ATTORNEY-AT-LA-W, ■WASHINQTON, D. C. PHILADELPHIA: T. & J. W. JOHNSON & CO., 535 Chestnut Stbeet. ' 1886. COPYEIGHT, 1886, By T. & J. W. Johnson & Co. PREFACE. The many cases summarily disposed of on motion by the United States Supreme Court from term to term, for years past, upon jurisdictional questions, rules of practice, or trivial questions, induced belief that a book which would enable the practitioner to review the decisions upon these oft-recurring questions, without having to examine all the volumes containing the decisions, would be of service to the profession. This volume is, therefore, designed to present, in a convenient form, decisions embracing every principle adjudicated upon motion, down to the beginning of October Term, 1885. It is not intended to reproduce cases of exact similarity, but to present those which, though similar, differ in some respect — ^probably material. A purpose of condensing has excluded the publication of the names of counsel, which it would have been agreeable to introduce ; names also of the distinguished jurists who de- livered the opinions, and in many instances authorities cited in the opinions, have been omitted — all with the intention of making the volume as compact and brief as practicable. It has not been considered necessary to quote the statements of the cases, as nearly all of the opinions contain sufficient statements ; and the object of this compilation is believed to be accomplished by a report of the opinions with syllabi. The entire space has therefore been devoted to the substance of the decisions. Charles H. Aemes. Washington, D. C, January, 1886. EXPLANATION. The omissions from the opinions, which are indicated by dots, thus, , are of authorities cited by the court, mentioned in the Preface. TABLE OF CASES. FAQS Adams County v. Burlington, etc., B. R. Ck)., 29 Adsit, Smith v 59 Adsit, Smith v 62 Alabama Gold Life Ins. Co. v. Nichols, 126 Albro Company, New Orleans Ins. Co. V 6 Allen, Leggett v 189 Alviso V. United States, .... 234 Attorney-General v. Federal Street Meeting-House, ... 82 Baker, Humphrey v 194 Ballance v. Forsyth 238 Bank, etc., v. Citizens' Bank, . . 67 Bank v. McVeigh, 46 Banking Association «. Insurance Association, 155 Benedict, Lang v 45 Bennett, Carter v 239 Black Kiver Improvement Com- pany, Polleys V 186 Blair, Eailroad Company v. . . 201 Blitz V. Brown, 232 Boggs V. Mining Company, . . 80 Boiling V. Lersner, 51 Bostwick V. Brinkerhoff, . . . 102 Boughton V. Exchange Bank, . 44 Hecht V 191 Boyle, Chatfield v _. . 145 Bradstreet Company v. Higgins, 124 Brinkerhoff, Bostwick v. ... 102 Brobst V. Brobst 236 Brown, Blitz v 232 V. Wiley, 121 Buckley, Ketchum v 21 Burlington, etc., E. E. Co., Adams County v 29 Burrows v. The Marshal, . . . 224 PAGE Burton, St. Paul, Minneapolis, etc., E. E. Co. t) 10 Butterfleld v. Usher, 109 Cambuston v. United States, . . 216 Campau, Lewis v . 82 Carpenter v. Williams, .... 71 Carter v. Bennett, 239 Cass County, Garrison v. ... 234 Central E. E., People v 68 Chaffe, Warfield J) 53 Chamberlain, Cleveland v. . . . 236 Chatfield v. Boyle, 145 Cheong Ah Moy v. United States, 184 Chumasero, Potts v 162 Citizens' Bank, Bank, etc., «... 67 City of New Orleans, Crossley v. 39 Clark V. Hancock 168 Cleveland v. Chamberlain, . . 236 Coleman, Nimick v 219 Commissioners of Knox Co., Mo- Comb, Executor, v 110 "Connemara," The, 153 Conro V. Crane, 220 Converse, Long v 55 Cooper, Transportation Line v. . 22 Corbin, Davis v 1 Davies v 99 Gaines v 1 Corneau, Seward v. 200 Coulter et al, Executors, etc., Eobertson, Trustee, etc., «... 85 Crane, Conro v 220 Crossley v. City of New Orleans, 39 Cummings v. Jones, 193 Dakota County v. Glidden, . . 180 Davidson, Udell v. 88 Davies v. Corbin, 99 V VI TABLE OF CASES. PAGE Davis V. Corbin 1 Dayton v. Lash, 222 De Armas, The Mayor v. . . . Q3 Dickinson, Hilton v 130 Dodge V. Knowles, 173 Donner, Palmer v 233 "D.E. Martin," The, 164 East Tennessee, etc., E. E. Co. v. Southern Telegraph Co., . . 169 Edrington, O'Eeiley v. . . . 212 Exchange Bank, Boughton v. . 44 Fashnacht v. Frank, 58 Federal Street Meeting-House, Attorney-General v 82 Fischer, Hayes v 200 Fisk, Grant v 106 Fletcher, Mower v 98 Fletcher and Another, Mower v. 98 Foley, Porter v 84 Forsyth, Ballance v 238 Frank, Fashnacht v 58 Friedman, McStay v 47 Gage V. Pumpelly, 243 Gaines v. Corbin, 1 Gamble, Mason v. 164 Garrison v. Cass Co., 234 Gas-Light Company, Vansant v. 211 German v. United States, . . . 233 Gilmore, Schoonmaker ti. . . . 18 Glenny v. Langdon, 171 Glidden, Dakota County v. . . 180 Goddin, Executor, v. Mutual As- surance Co., 26 Grame, Executor, v. Mutual As- surance Co., 26 Grant v. Phoenix Ins. Co., . . . 104 Eailroad Company v. . . 159 United States v 189 Green v. Fisk, 106 Gregory v. McVeigh, 60 Grigsby v. Purcell, 207 Gumbel v. Pitkin, 2 Hagar, Semple v 76 Hall, School District of Ackley V 12 Hampton v. Eouse, 225 Hancock, Clark v 168 Harrington v. Holler, 101 Harrison, Wheeler i; 226 Hayes v. Fischer, 200 FAQE Hecht V. Boughton, 191 Hentig v. Page, 196 Higgins, Bradstreet Company v. 124 Hilton V. Dickinson, 130 Hinckley v. Morton, 14 Holler, Harrington v. 101 HoUingsworth, Hurst v. . • . . 223 Hughes, Youngstown Bank v. . 140 Humiston v. Stainthorp, . . .123 Humphrey v. Baker, 194 Hurst V. HoUingsworth, .... 223 Insurance Association, Banking Association v 155 Jones V. La Valette, 235 Cummings v 193 Keach, Tarver v 64 Kennebeck E. E. v. Portland E. E 65 Ketchum ». Buckley 21 Knowles, Dodge v 173 Lamar v. Micou, 152 Lancaster Bank, Miller «. . . . 40 Lang V. Benedict, 45 Langdon, Glenny v 171 Langford, Poppe v 45 Lash, Dayton v 222 La Valette, Jones v 235 Leffingwell, Swope v 13 Leggett V. Allen, 189 Lersner, Boiling v 51 Lewis V. Campau, 82 Long V. Converse, 55 Lowe V. Williams, 23 Lucille, The, 114 McBride v. The Lessee of Hoey, 91 McComb, Exr., o. Commissioners of Knox County, 110 McGregor, Wells v. . . . ■ . . . 116 McKenzie, Miller v 230 McStay v. Friedman 47 McVeigh, Bank v .•46 Gregory v , 60 Mackall, Eiqhards v 177 Mamie, The, 145 Mason, Messenger v 69 V. Gamble 164 Martin, The D. E 164 Messenger i). Mason, 69 Micas V. Williams, 13 TABLE OF CASES. Vll Micou, Lamar v 152 Miller v. Lancaster Bank, ... 40 V. McKenzie, 230 use U. S. V. Nichols, . . 97 Mining Company, Boggs v. . . . 80 Mixter, Paciiic Bank v 173 Moore v. Simonds, 19 Morrill, Parker v 143 Morton, Hinckley v 14 Mower «. Fletcher, 98 V. Fletcher and Another, 98 Mulford, Paving Company v. . 156 Mutual Assurance Co., Grame, Exr., V 26 Mutual Assurance Co., Goddin, Exr., V 26 Myers, St. liouis v 23 Nagle V. Eutledge, • 155 National Bank, Tintsman v. . .158 New Jersey Zinc Company v. Trotter, 129 New Orleans Ins. Co. v. Albro Company, 6 New Orleans (City of), Crosby v. 39 Nichols, Alabama Gold Life Ins. Co. i) 126 Nichols, Miller use U. S. d. . . 97 Nimick v. Coleman, 219 Northern E. E. JJ. The People, . 68 O'EeUlyB.Edrington 212 Pacific Bank v. Mixter, .... 173 Page, Hentig v 196 Palmer v. Donner, 233 Parker v. Morrill, 143 Paving Company v. Mulford, . 156 Pearson v. Yewdall, 213 Pennsylvania v. Quicksilver Co., 231 People V. Central E. E., . . . . 68 Northern E. E. «. The . 68 Phoenix Ins. Co., Grant ». . . . 104 Pitkin, Gumble v 2 Polleys V. Black Eiver Improve- ment Co., 186 Poppe V. Langford, 45 Porter v. Foley, 84 Portland E. E., Kennebeck E. E.i> 65 Potts V. Chumasero, . • . . . .162 Protector, The, 227, 228 Pumpelly, Gage v 243 Purcell, Grigsby v. 207 PAGE Quicksilver Company, Pennsyl- vania V 231 Eailroad Co. (Burlington, etc.), Adams County v 29 Eailroad Co. v. Blair, 201 (St. Paul, Minne- apolis, etc.) V. Burton, ... 10 Eailroad Co. v. Grant, .... 159 (Portland), Ken- nebeck E. E. Co. d 65 Eailroad Co. (Central), People v. 68 (Kennebeck) v. Portland E. E. Co 65 Eailroad Co. v. Eock, 78 (Winona, etc.), St. Paul, etc., E. E. Co. v. ... 25 Eailroad Co. (Santa Cruz), Santa Cruz County Supervisors v. . 36 Eailroad Co. (East Tennessee, etc.) V. Southern Telegraph Co. 169 Eailroad Co. v. Sehutte; . . . 203 (Northern) v. The People, 68 Eailroad Co. v. Trook, .... 158 (St. Paul, etc.) V. Winona, etc., E. E. Co. . . . 25 Eailroad Co. v. Wiswall, . . .112 Eailway Company v. Eenwidr, . 17 Eenwick, Eailway Co. v. ... 17 Eichards v. Mackall, .... 177 Eobertson, Trustee, etc., v. Coul- ter et al., Exrs., etc 85 Eock, Eailroad Company «... 78 Eouse, Hampton v 225 Eussell V. Stansell, 150 Eutledge, Nagle v 155 Eyan v. Thomas, 75 St. Louis V. Myers, 23 St. Paul, Minneapolis, etc., E. E. Co. V. Burton, 10 St. Paul, etc., E. R. Co. v. Winona, etc., E. E. Co., . . .25 Salamon, Stewart v 211 Santa Cruz County Supervisors V. Santa Cruz E. E. Co., ... 36 SchoolDistrictof Ackleyj). Hall, 12 Schoonmaker «. Gilmore, ... 18 Sehutte, Eailroad Company v, 203 Schwed V Smith, 142 Semple v. Hagar, 76 Seward v. Corneau 200 Simonds, Moore v. , 19 viu TABLE OF CASES. PAGE Smith V. Adsit, 59 Smith V. Adsit, 62 Schwed V 142 Southern Telegraph Co., East Tennessee, etc., E. E. Co. v. . 169 Sparrow v. Strong, 116 Stainthorp, Humiston v. ... 123 Stansell, Bussell v 150 Stewart v. Salamon, 211 Stix, Wolf V 48 Strong, Sparrow v. 116 Susquehanna Boom Co. v. West Branch Boom Co., 37 Switzer, Zeller v 108 Swope V. Leffingwell, 13 Tarver v. Eeach, 64 The Connemara, 153 D. E. Martin, 164 Lessee of Hoey, McBride v. 91 LuoUle, 114 Mamie, 145 Marshal, Burrows v. . . . 224 Mayor v. De Armas, ... 93 People, Northern Eailroadu. 68 Protector, 227, 228 Steamship Ohio, Udall v. . 166 Victory, 72 Thomas, Eyan v 75 Thomas & Co. v. Wooldridge, . 113 Tintsman v. National Bank, . .158 Transportation Line v. Cooper, . 22 Trook, Bailroad Company v. . . 158 Trotter, New Jersey Zinc Co. v. 129 Tupper ®. Wise 11 PAGE Udall V. The Steamship Ohio, . 166 Udell V. Davidson, 88 United States, Alviso v 234 Cambuston v. . . 216 Cheong Ah Moy v. 184 German v. . . . 233 Grant v. .... 189 Usher, Butterfield v 109 Yansant ». Gas-Light Company, 211 Victory, The, 72 Villavaso, Walker v 74 Walker v. Villavaso, 74 Warfield «. Chaffe, 53 Wells V. McGregor, 116 West Branch Boom Co., Susque- hanna Boom Co. V 37 Wheeler v. Harrison, 226 Wiley, Brown v 121 Williams, Carpenter v 71 Lowe V 23 Micas V 13 Winona, etc., E. E. Co., St. Paul, etc., E. E. Co. « 25 Wise, Tapper v 11 Wiswall, Eadlroad Co. ». . . . 112' Wolf V. Stix, 48 Wooldridge, Thomas & Co. u. . 113 Yewdall, Pearson v 213 Youngstown Bank v. Hughes, . 140 Zeller v. Switzer, 108 OASES SUIIARILY DISPOSED OF ON MOTION IN THE ■ SUPREME COURT OF THE UNITED STATES. Davis v. Coebin et al.; Gaines v. Coebin d al., Wi J5 . S. 687. Bond — ^Docketing a Cause— Effect of. Color of right to a dismissal must appear, or a motion to affirm will not be entertained. On motion to dismiss or affirm. Opinion. — This is the second time a motion has been made to dismiss the case of Davis v. Corbin. Tiie ground of the present motion is that the security required by § 1000 Rev. Stat., has never been given. Against this it is shown that a supersedeas bond was accepted by the judge who signed the citation on the 8th of April, 1884. The judg- ment brought under review by the writ of error was ren- dered on the 11th of February, 1884. The writ of error was sued out and served on the 7th of March in the same year, and the citation was also signed and served on that day. The cause was duly docketed in this court by the defendant in error on the 22d of March, in advance of the return day of the writ. On the same day the defendant in error filed his motion to dismiss for other reasons than that now relied on. The plaintiff in error was notified that the motion would be presented to the court on the 14th of April. Wlien the motion was filed the security had not been given, a CASES SUMMARILY but before the time fixed for hearing it was tendered in proper form and accepted. Early in the present term that motion was overruled. The docketing of the cause by the defendant in error in advance of the return day of the writ did not prevent the plaintiff in error from doing what was necessary while the writ was in life to give it full effect. The present motion to dismiss is, therefore, overruled. The original rule allowing a motion to affirm to be united with a motion to dismiss was promulgated May 8th, 1876, 91 U. S. vii, and in Whitney v. Cook, 99 U. S. 607, decided during the October Term, 1878, it was ruled that the motion to affirm could not be entertained unless there appeared on the record at least some color of right to a dismissal. This practice has been steadily adhered to ever since, and, in our opinion, prevents our entertaining the motion to affirm in this case. The motion is consequently Denied. GuMBEL, V. Pitkin, 113 U. S. 545. Assignment of Ereoks — Final Judgment — Names of Parties. That no assignment of errors was transmitted with the record, is not suf- ficient ground for a motion to dismiss for want of jurisdiction. An order dismissing an intervention of a creditor claiming priority of distribution, which disposes of his rights, is a final judgment as to that issue, as to which he has a right to a writ of error. So, also, is an order distributing proceeds of a sale, which disposes of the fund. " Where the writ gives all the names of the parties as they are found in the record in the caie in the Circuit Court," and there is nothing to show that there were other parties than those so named, this court will not pre- sume that there were other parties, in the absence of evidence thereof in the record. Motion to dismiss or affirm, denied. Opinion. — A motion is made to dismiss the writ of error in this case on the following grounds : DISPOSED OP ON MOTIOK. 3 1. The wrib of error waa never served by lodging a copy thereof with the clerk of the court. 2. No assignment of errors was transmitted with the record, as required by the rules of the court and by § 997 Rev. Stat. 3. The writ of error does not set forth the names of the members of the several firms mentioned in the writ as de- fendants, and there is nothing in the record by which this irregularity may be corrected. 4. The original petition demands restoration of the goods seized by the marshal, to the sheriff, on the ground of pre- vious seizure by that officer under an attachment emanating from the State court ; the amended petition abandons that ground, and goes for priority in the distribution of the pro- ceeds of sale in the marshal's hands, tlie result of an order of sale pendente lite; such a petition is a mere rule or motion for distribution of proceeds, and a judgment rendered thereon is not reviewable by writ of error. As to the first of these, it appears to be unfounded in fact, as the record now before us shows that the writ was filed in the Circuit Court June 14th, 1884, and is so marked over the signature of the clerk. The second ground is met by the decision of this court in the case of the School District of Ackley v. Hall, 106 U. S. 428, where it is said that a writ of error will not be dismissed for want of jurisdiction by reason of a failure to annex thereto or return therewith an assignment of errors pursuant to the requirements of § 997 Rev. Stat. Nor does Rule 8 require a copy of assignment of errors in the transcript when no such assignment was filed in the court below. The fourth ground of dismissal is equally untenable. The record shows that a large number of the creditors of Joseph Dreyfus, of the city of New Orleans, sued him in the Circuit Court of the United States, and in those actions, or in one of them, a writ of attachment was issued and levied on the 4 CASES SUMMARILY goods of Dreyfus by the marshal, who took possession of them. In this action Gumbel intervened by petitioil, as he was authorized to do by the laws of Louisiana, and by the decision of this court in Freeman v. Howe, 24 How. 450, alleging that a seizure under a writ of the State court in his favor had been made by the sheriff before. the marshal's levy, and he claimed a priority of lien on those goods. The goods were sold under an order of the Circuit Court pendente lite, and the proceeds distributed to other parties, and Gumbel's intervention dismissed on the ground that the sheriff had made no seizure prior to that of the marshal. The order dismissing Gumbel's intervention disposes of liis rights, and is a final judgment as to that issue, as to which he has a right to a writ of error. The order distributing the pro- ceeds of the sale is also final, as it disposes of the fund. As regards the third ground for dismissal, the case is not so clear. This court has undoubtedly, from the case of Dc- neale v. Stump, 8 Pet. 626, to that of The Protector, 11 Wall. 82, held that all the parties to the judgment must be named in the writ of error, &nd that the use of the name of one of the parties, with the addition of the words " and others," as " Joseph W. Clark and others," does not satisfy the requirement; but, on the contrary, shows that there were parties to the jodgmerrt or decree in the inferior court who are not named in the writ. It is upon this ground that the judgment in the case of Smith v. Clark, 12 How. 21, is dis- tinctly placed by Chief Justice Taney in the opinion. In the case of The Protector, 11 Wall. 82, the appeal was taken in the name of William A. Freeborn & Co., while the record showed that William A. Freeborn, James F. Free- born, and Henry P. Gardner were the libellants. In this court counsel insisted that the objection was not fatal, and that the appeal might be amended, but the court held otherwise, and dismissed the appeal. In the present case the defendants are named in the writ, DISPOSED OF ON MOTIOJf. 5 in almost every instance, by such designations as B. Dreyfus & Co., Cqrning & Co., John Osborn, Sou & Co., and so on. We should have no hesitation noAv under § 1006 of the Revision, which section became a law by the Act of June 1st, 1872, after the case of The Protector was decided, to per- mit the plaintiff in .error to amend if there was anything to amend by. But the transcript of the record before us shows that these parties came into the Circuit Court as defendants or intervenors, and prosecuted their rights throughout the whole proceedings by the designations applied to them in this writ of error, and by no other names whatever. No amendment of the writ to remove this difficulty can, therefore, be made from the record before us. If the plaintiff in error has a just foundation for his as- sertion of error in the judgment against him, it would be a great and apparently irremediable injustice to dismiss his writ. The present case differs from that of The Protector, the latest on the subject, for, in that case, the record showed that AVilliam A. Freeborn, James F. Freeborn, and Henry P. Gardner were the libellants whose libel was dismissed, and no good reason is to be seen why they did not bring their appeal in those names instead of William A. Freeborn &Co. In the case of Smith v. Clark, the objection relied on in the opinion of the court, 12 How. 21, is, that this form of appeal showed to the court that there were other parties to the decree below not named, and, therefore, not brought be- fore this court by the appeal. Neither of these cases cover the present. In this case the plaintiff in error gives his own full name, and he is the only plaintiff. He describes, in his writ of error, all the parties opposed to him, by the names and designations which they gave themselves in their pleadings, motions, and proceedings in the court below, aud by which they are mentioned in tiie judgment which distributes to them the money that he as- 6 CASES SUMMARILY serts should rightfully go to him. "We are not advised, as in the Freeborn case, by the record that the appellants had other names than Freeborn & Co., nor, as in the Darneal (?) case, that there were others who were attempted to be made parties by that word, with no other designation. We think that, where the writ gives all the names of the parties as they are found in the record of the case in the Circuit Court, and where there is nothing to show that any other person was a party than such as are so named, this court is not at liberty to indulge the presumption that there were others who were parties, when such presumption is not founded on anything in the record, and would lead to a manifest injustice. The motion to dismiss is overruled, and the case is one to be heard on the merits and not to be affirmed on motion. Both motions are denied. New Orleans Iks. Co. v. Albro Company, 112 U. S. 606. BOITD — FORH ATTD APPKOVAL OP ; DEFECTS IN— FEryOLOTIS QtJESTION — Wkit of Eerok — FoKM OF — Sued out foe Delay — Cokeection OP Defects in. Where the defense in a suit on an insurance policy was, in effect, that the cargo lost hy stranding ought to have been gathered up and forwarded to the place of destination, Held, that the writ of error was sued out for delay. On motion to dismiss or affirm. Opinion. — The motion to dismiss is put on the ground that the security bond is defective : 1st, because the sureties are not jointly or severally bound for the full amount of the obligation, but each severally for a specified part only ; and, 2d, because the judgment brought under review by the writ of error is not described with sufficient certainty. , DISPOSED OF ON MOTION. 7 The bond is certainly unusual in form, but we cannot say that it is not within the legal discretion of a justice or judge, under some circumstances, to take it. Cases may arise in which it will be impossible to obtain security if this mode is not adopted. It being within the discretion of the judge to accept such a bond as security, his action in that particular is final, and, under the rule laid down in Jerome v. McCar- ter, 21 Wall. 17, not reviewable here. In the matter of the description of the judgment, the bond is in the form which has been much in use, except that it omits the term at which the judgment was rendered. The better practice undoubtedly is to specify the term in describing the judgment, but the omission of such a means of identification is not necessarily fatal, and certainly, before dismissing a case on that account, opportunity should be given to furnish new security. It is apparent from the record that the writ of error must have been sued out for delay only. The suit was upon a policy issued by the insurance comj)any to the Albro Com- pany for the insurance of a cargo of mahogany and cedar wood on board the bark Commodore Dupont, against the perils of the sea and the barratry of the master of the bark at and from the port of Santa Anna, Mexico, to the port of New Orleans. The bark was driven on the bar at Santa Anna, and wrecked in a severe gale while loading, and her cargo was cast on the sea and driven ashore ; while in this condition the cargo was sold, and the proceeds, which were but small, after deducting charges and expenses, paid over by the master to the Albro Company. In the petition the loss of the vessel and her cargo is averred, and also the sale of the cargo under the orders of the port authorities at Santa Anna. In the answer the loss of the vessel was admitted, but it was insisted, by way of defense, that due diligence was not used by the master in saving the cargo and forwarding it to its place of destination as the policy required. Upon the 8 CASES STIMMAKILY trial the " plaintiffs introduced evidence tending to show that the sale of the insured cargo by the master was made under such circumstances as constituted a necessity for making the same, and rendered the act of the master in making the same the act of the defendants, in that, under the law of insurance, the authority therefor would be imjilied. The defendants introduced evidence tending to establish the absence of those circumstances ^\ hich so gave authority to the master to make such sale, and tending to show the failure on his part to seasonably communicate with the owners and underwriters ; and the same evidence, introduced by the defendants, besides being applicable to the two issues, as stated above, tended further to establish that the act of the master in making the said sale of the insured cargo was an act of barratry, in that it was made, and especially was made, in time and manner knowingly contrary to his best judgment and to the injury of wliomsoever it might concern ; and all the evidence tending to establish a barratrous sale came from the defendant. "The court instructed the jury that, under the pleadings, the evidence which had been adduced before them in the cause authorized them to inquire and find "1st. Whether the sale of the master was made under such circumstances as, according to the principles or rules in the law of marine insurance (which were stated to the jury) made the act of sale on the part of the master the act of the underwriters, and that if upon this question they found for the plaintiff, then the defendant's liability was established. " 2d. The court instructed the jury that if they found that, according to the principles and rules of marine insurance (which had been stated to them), the act of sale on the part of the master was not the act of the underwriters, but they found that, while he had exceeded his authority, he liad acted in good faith, then the defendant was discharged from all liability. DISPOSED OF ON MOTIOX. "9 "3cl. The court further instructed the jury that if they found that, according to the rules and principles of marine insurance (which had been explained to them), the act of sale by the master was not the act of the underwriters, the de- fendants, still, if they found that sucii sale was barratrously made, i. e., was au act of barratry, which was defined to them by the court, then also the liability of the defendant was established. " No exception was taken by the counsel for the defendant to the rules or principles of law by which the court, in its instructions, had stated they must determine the question of implied authority from the defendant on the part of the master to make the sale, uor to the test by which the jury was to determine whether au act of barratry had been com- mitted. "But the counsel for the defendant, before the jury re- tired to deliberate upon their verdict, reserved an exception to that part of the charge of the court alone by which the court submitted the question of barratry or no barratry to the jury, in the instruction numbered 3d." We are unable to discover even the semblance of an error in the part of the charge excepted to. The petition pre- sented distinctly the question of the liability of the insurance company, under its policy, for the loss of the cargo which had been stranded by a peril of the sea and sold by the master of the vessel. The defense was, in eifect, that the cargo ought to have been gathered up after the stranding and forwarded to the place of destination. Upon the issue thus raised by their pleadings the parties went to trial, and testimony was submitted to the jury on both sides. That of the insurance company tended to show, not only that the sale was not justified by the circumstances, but that in mak- ing the sale the master was guilty of barratry. The court told the jury, in substance, that if the master, acting in good faith, sold the cargo when he ought not to have done so, the 10 CASES StJMMAEILY insurance company would not be bound by bis sale ; but, " if the sale was barratrously made, i. e., was an act of bar- ratry," the company must make good the loss — and this clearly because it had insured against the barratry of the master as well as the perils of the sea. It is true that the parties did not, in their pleadings, rely upon the barratry either as a ground of action or of defense, but the insured did sue for the loss occasioned by the perils of the sea and the sale by the master, and the insurance company, in at- tempting to prove that the sale was not justifiable under the circumstances, gave evidence tending to prove that it was barratrously made. It was upon this evidence coming from the insurance company that the court told the jury that the barratry of the master would not relieve the company from its liability in this action for the loss which followed from the stranding by a peril of the sea, and the subsequent barra- trous sale. Certainly we are not called upon to retain a case on our docket for argument upon such a question. There was sufficient color of right to a dismissal to make it proper for us to entertain a motion to affirm with the motion to dismiss. The motion to dismiss is denied, but that to affirm is granted. Affirmed. St. Paul, Minneapolis, etc., E. E. Co. v. Bueton, 111 U. S. 788. Evidence— Pkactice. The certificate of the clerk, under seal of his office, that the judge was duly qualified, is not necessary to tlie admissibility in evidence of an ex- emplification of a record of naturalization, in a question of removal from a State to a U. S. Circuit Court. On motion to dismiss or affirm. Opinion. — The order remanding this case is affirmed. The Act of March 3d, 1875, c. 137, § 5, 18 Stat. 470, DISPOSED OF ON MOTION. 11 makes it the duty of the Circuit Court to remand a suit which has been removed from a State court when it satis- factorily appears that the "suit does not really and substan- tially involve a dispute or controversy properly within the jurisdiction of said Circuit Court." The exemplificatiou of the record of Moses Burton, which was offered in evi- dence, did not require, to complete its authentication, the cei-tificate of the clerk under the seal of his office that the judge of the court was duly commissioned and qualified. The certificate may be to some extent defective in form, but we think the record as a whole could properly be considered by the judge on the question of remanding the cause. Affirmed. TtnppER d cd. V. "Wise, 110 U. S. 398. AMOTOrr. Distinct judgments in favor of or against distinct parties, though in the same record, cannot be joined to give this court jurisdiction. On motion to dismiss or affirm. Opinion. — This was a suit brought by Wise, the defend- ant in error, against the plaintiffs in error and others to re- cover the possession of Sec. 21, T. 3 N., E. 8 E., Mount Diablo base and meridian containing six hundred and forty acres of land. Tupper answered, denying that he was in possession of any part of the section except the northeast quarter, and to that he set up a pre-emption claim and settle- ment. Lenfesty made the same answer and claim as to the southeast quarter. There was no joint ownership or joint possession. Each defendant claimed a separate and distinct interest in a separate and distinct part of the land. The jury found that the " defendants were each severally in the wrongful possession of the lands respectively described in their several answers and no others, and that the value of the rents and profits of the lands so held and possessed by 12 CASES SUMMAEILY defendant Tupper is one hundred dollars, of the land so held and possessed by defendant Lenfesty one hundred dollars, and that the value of each one of said tracts of one hundred and sixty acres is three thousand dollars, and of the two of them six thousand dollars. Judgment was thereupon ren- dered against Tupper for the possession of his tract and one hundred dollars damages, and against Lenfesty in the same way. Tupper and Lenfesty then sued out this writ of error which Wise moves to dismiss, because the claims of the several plaintiffs in error are separate and distinct, and * the value of the matter in dispute with either of them does not exceed five thousand dollars. This motion is granted. The rule is well settled that dis- tinct judgments in favor of or against distinct parties, though in the same record, cannot be joined to give this court juris- diction. The whole subject was fully considered at the last term in Ex parte Baltimore and Ohio Railroad Company, 106 U. S- 5 ; Farmers' Loan and Trust Company v. "Water- man, id. 265 ; Adams v. Crittenden, id. 576'j Schwed v. Smith, id. 188. The stipulations as to the value of the property wliich is found in the record cannot alter the case, for it states that the aggregate value of the two quarter- sections exceeds five thousand one hundred dollars, and the verdict fixes the value of each quarter at three thousand dollars. Dismissed. School District of Ackley v. Hall, 106 U. S. 428. Assignment op Erbohs. Failure to return with a writ of error, an assignment of errors, is no ground of dismissal for want of jurisdiction. On motion to dismiss or affirm. Opinion. — A failure to annex to or return with a writ of error an assignment of errors, as required by § 997 DISPOSED OF ON MOTIOK. 13 of the Eevised Statutes, is no ground for dismissal for want of jurisdiction. If an assignment is filed in accordance with tlie requirements of par. 4, Kule 21, it will ordinarily be enough. There is not in this case such a color of right to a dis- missal as to make it proper for us to consider the motion to affirm. Motion denied. SwoPE V. Leffingwell, 105 U. S. 3. JuEisDicTion — Federal Qtjestion. Where this court has jurisdiction, a Federal question being involved, but the decision below being pursuant to precedents of this court, a motion to affirm will be granted. On motion to dismiss or affirm. Opixign'. — We have jurisdiction of this case. The mo- tion to dismiss is therefore denied ; but as the only Federal question presented on the merits was decided by the court below in accordance with our rulings in National Bank v. Matthews, 98 U. S. 621, and National Bank v. Whitney, 103 U. S. 99, the motion to affirm is -■ Granted. Micas v. WiLLiAiis, 104 U. S. 556. Apfidavits — Amotwt — Coi,OE or Eight — FRivoiiOus Questioit. A jurisdictional amount being shown by affidavits to be involved, a mo- tion to dismiss is denied ; however, there being a color of right to a dis- missal, and the question involved appearing to be frivolous, the motion to affirm is granted. On motion to dismiss or affirm. Opinion. — The affidavits which have been filed by the plaintiff in error, in opposition to these motions, are proba- 14 CASES SUMMAELLY bly sufBcient to establish the fact that the value of the mat- ter in dispute exceeds five thousand dollars. The motion to dismiss is, therefore, denied ; but, on look- ing into the record, we are entirely satisfied the writ was taken for delay only. No assignment of errors has been annexed to, or returned with, the writ, as required by §997 of the Revised Statutes; and every question presented by the bill of exceptions, or suggested upon the argument, appears to us so frivolous as to make it improper to keep the case here for any further consideration. There was on the record, as it stood when the motions were made, at least sufficient color of right to a dismissal to justify us in enter- taining with it a motion to affirm in accordance with the provisions of Rule 6, par. 5. Motion to affirm granted. Hinckley v. Moetoit, 103 U. S. 764. Affirm — Coloe op Eight— Dismiss. A motion to affirm may be united with a motion to dismiss where there is color of right to a dismissal. On motion to dismiss or affirm. Opinion. — Our jurisdiction of this case is clear. The appeal is not from the decree entered on our mandate at the last term in Hinckley v. Railroad Company, 100 U. S. 153. On the contrary, that decree has been satisfied by an actual payment of the amount found due. The case does not, therefore, come within the rule laid down in Stewart v. Salamon, 97 id. 361, where we held that an appeal would not be entertained from a decree rendered by the court below in accordance with our mandate on a previous appeal. The record now presented shows that after our decision at the last term, in which, among other things, Hinckley, the ap- DISPOSED OF ON MOTION. 15 pellant, was allowed ten thousand dollars for his services as receiver from the time of his appointment in the Kelly suit, he went into the State court and had that suit reinstated. He then applied to that court to fix his compensation as re- ceiver. That was done, and resulted in an allowance to him of something more than twenty-four thousand dollars. As soon as that order in his favor was made, he filed an inter- vening petition in the Circuit Court, asking that the amount so allowed him might be paid out of the fund in the Circuit Court belonging to the Morton suit. This was refused, and from the order to that effect, M'hich was a final decree on the intervening petition, this appeal was taken. Second appeals have always been allowed to bring up proceedings subsequent to the mandate and not settled by the terms of the mandate itself. . . . This case comes clearly within that rule, and the motion to dismiss is, therefore, denied. But we think the motion to afSrm should be granted. The question of compensation to the receiver, so far as the fund in the Circuit Court is concerned, was settled on the former appeal. The allowance then made was for the entire services of the receiver from the date of his original appoint- ment in the Kelly suit. The value of the services was made, by the exceptions to the master's report, a matter of special inquiry, and the result is indicated in the judgment which was then given. If the State court has funds in its hands, out of which its judgment can be paid, it has full power to order the payment, but the liability of the fund in the Cir- cuit Court to the receiver has already been fully discharged. The court below was right, therefore, in refusing the prayer of the appellant in his intervening petition, and its order to that effect is Affirmed. Further, on petition for rehearing. Eule 6, par. 4, as amended November 4tli, 1878, 97 U. S. vii, provides that there may be united with a motion to dis- 16 CASES SUMMAKILY miss a writ of error or appeal, a motion to afBrm, on the ground that, although the record may show that this court has jurisdiction, it is manifest the appeal or writ of error was talten for delay only, or that the question on which the jurisdiction depends is so frivolous as not to need further argument. This is a modification of the rule as originally promulgated May 8th, 1876, 91 U. S. vii, when it was con- fined to motions to dismiss writs of error to a State court. In Whitney v. Cook, 99 U. S. 607, we held that to justify a motion to affirm under this rule there must be a motion to dismiss and at least some color of right to a dismissal. In Stewart v. Salamon, 97 U. S. 361, we decided that if an appeal was taken from a decree entered on our mandate upon a previous appeal, we would, on the application of the appellee, examine the decree entered, and if it conforiiied to the mandate, dismiss the case, with costs. The motion to dismiss in this case was apparently based upon that ruling. It seemed to us, when it was up for hearing, to have been made in good faith ; and Avhile we did not think it ought to be sustained, we could not say that it was without any color of right. For that reason we felt at liberty to look into the motion to affirm. The record in this case showed that Hinckley was ap- pointed receiver in the Kelly suit November 24th, 1869, and that his receivership ended by his turning over the property to the trustees of the mortgage on the 12th of August, 1875. The record of the former appeal, to which we think we may with propriety look, as the order now ap- pealed from was made upon a petition of intervention filed in that cause, shows that in the settlement of accounts then made Hinckley was paid for his services during the whole period of his receivership, that is to say, from the date of his appointment in the Kelly suit until his final dis- charge. We are still of the opinion that the case is a proper one DISPOSED OF ON MOTION. 17 for the application of our rule in respect to motions to af- firm, and, therefore, tlie petition for a rehearing is Denied. Eailway Co. v. Renwick, 102 U. S. 180. Fed'hbal Question— Eminent Domain — Eipaeian Oivneb — Compen- sation POK Pbopertt Appeoeeiated. A railroad company cannot, by virtue of a grant of a State legislature, appropriate the property of a, riparian owner on the Mississippi Eiver, wliich he uses in connection with the river, without just compensation. On motion to dismiss or affirm. Opinion. — Although the Supreme Court of Iowa decided that Congress, under the power to regulate commerce, had jurisdiction over the Mississippi River, and having exercised that power in the way specified in § 5254 Rev. Stat., ail State legislation in conflict therewith was void, still the ques- tion remains, whether, if a riparian proprietor improves his property with a view to its use in connection with the river, without complying with this act of Congress, a railroad company, under the power of eminent domain granted by the State, can appropriate his improvements to its own use without his consent and without making him compensation. This, we think, is a Federal question giving us jurisdiction, but it is a question on which we do not care to hear argu- ment. The controversy is not between the public and the riparian owner as to his right to keep up his improvements The public does not complain, but the railroad company wants the improvements. In the hands of the company they will be just as much a nuisance, so far as the public is concerned, as they can be if kept up by the owner. As be- tween these two parties the improvements are the property of the riparian proprietor, and if the company wants them for its own use it must make compensation. So the court 2 18 CASES SUMMARILY below has decided, and to our minds its decision '.vas clearly right. While in Iowa it has been held that the State owns the lands lying along the river between high and low water mark, care was taken in the Act of March 18th, 1874, to pro- vide that it should, not be lawful for any person or corpora- tion to construct or operate any railroad or other obstruction between the shore and river without compensation to the shore owners. The second section of the act is good, even though the first may conflict with what Congress had before done. • The motion to dismiss is denied, but that to affirm is' granted. Judgment affinned. SCHOONMAKEE V. GiLMOEE, 102 U. S. 118. AdMIRAITY — JwRISDICTIOir OF THE U. S. COUBTS IN, IN PEESONAM. The decision below being in accordance with precedents of this courtj a motion to a£Brm is granted. On motion to dismiss or affirm. Opinion. — The single question in this case is, whether the courts of the United States, as courts of admiralty, have ex- clusive jurisdiction of suits in personam, growing out, of col- lisions between vessels while navigating the Ohio Rivef. This is a Federal question, and gives us jurisdiction ; but we can- not consider it as any longer open to argument, as it was decided substantially in The Moses Taylor, 4 Wall. 41 1 ; The Hine v. Trevor, id. 555 ; The Belfast, 7 id. 624 ; Leon V. Galceran, 11 id. 185 ; and Steamboat Company v. Chase, 16 id. 622. The Judiciary Act of 1789 (1 Stat. 73, § 9), reproduced in § 563 Rev. Stat., par. 8, which confers admiralty jurisdiction on the courts of the United States, expressly saves to suitors, in all cases, the right of a com- mon-law remedy, where the common law is competent to DISPOSED OP ON MOTION. 19 give It. That there always has been a remedy at common law for damages by collision at sea cannot be denied. The motion to dismiss is overruled, and that to affirm granted. Judgment affirmed. MOOHE V. SiMONDS, 100 U. S. 146. Amendments — Appeal — ^Pabtnebship — ^Name op, in Appeals. An unacknowledged mortgage of a vessel, not recorded, is not invalid as against third parties having actual notice. On motion to dismiss or affirm. Opinion. — Technically, this appeal should have been taken in the names of the individual members of the commercial firm of John T. Moore & Co., instead of in the name of the firm, and because of such an irregularity an appeal was dis- missed in the case of The Protector, 1 1 Wall. 82. That case was decided before the Act of June 1st, 1872 (17 Stat. 197, § 3, now § 1005 Rev. Stat.), allowing amendments of writs of error in certain cases, and it does not appear that the defect could have been remedied by reference to anything in the appeal papers. Here, however, § 1005 was in force when the appeal was taken, and the bond shows that the firm in whose favor the appeal was allowed was com- posed of John T. Moore and John T. Moore, Jr. We are clear, therefore, that the defect is one that may be amended under the law as it now stands, and for that reason we will not dismiss the appeal. But on looking into the record we find that the only question involved is whether the lien of the appellants' mortgage on the steamboat "John T. Moore " is superior to that of another mortgage in favor of Swift's Iron and Steel Works, and Dennis Long. From the find- ings of fact it appears that the last-named mortgage was exe- cuted January 27th, 1871 ; that it was signed and acknowl- 20 CASES STJMMAEILY edged by the owner of the boat in the presence of two witnesses, one of whom was a notary public ; that the wit- nesses attested the execution of the mortgage, but the notary did not sign officially ; that there was no other or furtlier acknowledgment of the mortgage before a notary ; and that this mortgage was not recorded in tlie office of the collector of customs where the boat was permanently enrolled. The mortgage to Moore & Co., the appellants, was executed Jan- nary 3d, 1872, and was duly recorded in accordance with the act of Congress ; but when it was taken Moore & Co. had actual notice of the existence of that to the appellees. Upon this state of facts the court below held that the mortgage of the appellants was inferior in lien to that of the appellees ; and this was so clearly right that we are not inclined to hear an argument upon the question. The act of Congress relied on by the appellants is now found in §§ 4192 and 4193 of the Revised Statutes.* These, so far as they are material to the present inquiry, are as follows : "§4192. No bill of sale, mortgage, hypothecation, or conveyance of any vessel, or part of any vessel, of the United States shall be valid against any person other than the grantor or mortgagor, his heirs and devisees, and per- sons having actual notice thereof, unless such bill of sale, mortgage, hypothecation, or conveyance is recorded in the office of the collector of customs where such vessel is regis- tered or enrolled. . . . "§ 4193. . . . But no bill of sale, mortgage, hypothe- cation, or conveyance, or discharge of mortgage, or other incumbrance of any vessel, shall be recorded, unless the same is duly acknowledged before a notary public or other officer authorized to take acknowledgment of deeds." To our minds there is no doubt that Congress only in- tended to require that a mortgage on a vessel should be DISPOSED OF ON MOTION. 21 acknowledged for the purpose of authenticating it for record, aud that as between the parties and as against persons having actual notice thereof, it was valid without acknowledgment or record. As this was the decision of the court below, we deny the motion to dismiss, and grant that made under Eule 6, to afBrm. Decree affirmed. KeTchtjm v. Buckley, 99 U. S. 188. Federal Question. This court has so often held that the same general form of government, general law for administration of justice, and protection of private rights, which existed in the States prior to the rebellion, remained during its continuance and afterward, that it is unwilling to hear argument as to liability upon a testamentary bond made pursuant to such laws. On motion to dismiss or affirm. OriNiON. — We are not willing to hear an argument on the only possible Federal question presented by this case. It is uow settled law in this court that during the late civil war the same general form of government, "the same general law for the administration of justice and the protection of private rights, which had existed in the States prior to the rebellion, remained during its continuance and afterward. As far as the acts of the States did not impair or tend to impair the supremacy of the national authority, or the just rights of the citizens, under the Constitution, they are in general to be treated as valid and binding." . . . The ap- pointment by the President of a military governor for the State at the close of hostilities did not of itself change the general laws then in force for the settlement of the estates of deceased persons, and did not remove from office those who were at the time charged by law with public duties in that behalf. It is not alleged that the governor, after his 22 CASES SUMMAEILY appointment, undertook by any positive act to remove McGuire from the position he occupied as general adminis- trator, or that McGuire himself at any time ceased to per- form the duties of his office by reason of what was done by the President or others toward the restoration of the State to its political rights under the Constitution of the United States. From all that appears in the record he continued to act during the whole of his term as general administrator of the county, notwithstanding the changes that were going on in the other departments of the Stat£ government. Under these circumstances, it is so clear that the judgment of the court below was right that we grant the motion to affirm. Judgment affirmed. Teanspoetation Line v. Coopee, 99 U. S. 78. Fedeeai, Qtjestion. Where the only Federal question is as to whether or not a canal-boat carrying the wife and children of the captain is a " barge carrying pas- sengers," this court declines to hear argument, and affirms the judgment. On motion to dismiss or affirm. Opixiojf. — The only Federal question presented in this case is one upon which we are not inclined to hear an argu- ment. A canal-boat laden with coal for transportation, having on board the wife and children of the captain, is not " a barge carrying passengers," within the meaning of § 4492 Revised Statutes, which requires such a barge, while in tow of a steamer, to be provided with " fire-buckets, axes, life-preservers, and yawls." The motion to dismiss is denied, but that to affirm is granted. Judgm^ent affirmed.. DISPOSED OF OIT MOTION. 23 Lowe v. Williams, 94 U. S. 650, REMOVA.L. After a final hearing or trial in a State court, a petition for removal to a United States court cannot be granted. This court, having so held in sevenil cases, grants a motion to affirm. On motion to dismiss or affirm. Opinion.— The Act of March 2d, 1867, 14 Stat. 558, pro- vided for the removal of causes from the State courts to the Circuit Courts, under certain circumstances, when due appli- cation was made " before the final hearing or trial of the suit." This we held in Stevenson w. Williams, 19 Wall. 575, to mean " before final judgment in the court of original jurisdiction where the suit is brought." To the same effect are Vannever v. Bryant, 21 id. 43, and Fashnacht v. Frank, 23 id. 419, decided since. The Act of March 3d, 1875, 18 Stat. 471, under which the removal was attempted in this case, requires the petition to be filed " before the final trial." The decisions under the Act of 1867 are, therefore, equally applicable to that of 1875. The petition for removal was filed in the appellate court, and, of course, long after the final judgment in the court of original jurisdiction. Under these circumstances, we consider that, while a Federal question is presented by the record, it is one that has already been settled and needs no further argument. ITie motion to dismiss denied; that to affirm granted. St. Louis v. Myers, 113 U, S, 566. Federal Question — ^Riparian Eights. A suit by a lessee of property in St. Louis used in connection with the navigation of the Mississippi Eiver, against the city for diverting the nat- ural course of the water and destroying appurtenant water privileges, pre- sents no Federal question. 24 CASES SUMMAEILT Motion to dismiss granted. Opinion'.— The question on which this case turned below was, whether Myers, the lessee of property situated on the bank of the Mississippi River within the city of St. Louis, which had been improved with a view to its use, and was used in connection with the navigation of the river, could maintain an action against the city for extending one of its streets into the river- so as to divert the natural course of the water and destroy the water privileges which were ap- purtenant to the property. The Supreme Court of the State decided that he could ; and to reverse that decision this writ of error was brought. We are unable to discover that any Federal right was denied the city by the decision which has been rendered. The act of Congress providing for the ad- mission of Missouri into the Union, Act of March 6th, 1820, ch. 22, 3 Stat. 545, and which declares that the Mississippi River shall be " a common highway and forever free," has been referred to in the argument here, but the rights of ripa- rian owners are nowhere mentioned in that act. They are lefl} to be settled according to the principles of State law. Certainly there is nothing in the provisions of the act from which a right can be claimed by the city of St. Louis, even though it be the owner of the bed of the river, to change the course of the water as it flows, to the injury of those who own lands on the banks. This act was not mentioned in the pleadings, and, so far as we can discover, it was not alluded to in the opinions of either of the courts below, ex- cept for the purpose of showing that the Mississippi River was in law a navigable stream. By an act passed June 12th, 1866, ch. 116, § 9, 14 Stat. 63, Congress relinquished to the city of St. Louis all the right, title, and interest of the United States, " in and to all wharves, streets, lanes, ave- nues, alleys, and of the other public thoroughfares " within the corporate limits ; but this did not, any more than the act providing for the admission of Missouri into the Union, DISPOSED OF ON MOTION. 25 purport to authorize the city to impair the rights of other riparian proprietors by extending streets into the river, and neitlier in the court below nor here has there been any pro- vision referred to wliich it is claimed has that effect. The case of Eailway Co. v. Eenwick, 102 U. S. 180, was entirely different from this. There the question was whether the owner of a saw-mill on the bank of the Mississippi River, who had improved his property by erecting piers and cribs in the river under the authority of a statute of Iowa, but without complying with the provisions of § 5254 Revised Statutes, could claim compensation from the railroad company for taking his property in the river for the construction of its road. The company claimed that, as Congress, in the exercise of its jurisdiction over the navi- gable waters of the United States, had prescribed certain conditions on which the owners of saw-mills on the Missis- sippi River might erect piers and cribs in front of their property, the statute of Iowa, under which Renwick had made his improvements, was void. This, we held, presented a Federal question and gave us jurisdiction ; but nothing of that kind appears in this record. On the whole we are satisfied that no case has been made for our jurisdiction, and The motion to dismiss is granted. St. Pattl, etc., R. R. Co. v. "Winona, etc., R. R. Co., 112 U. S. 721. Federal Question. The rights asserted by both parties being founded upon acts of Congress which require construction, a motion to dismiss is denied. Motion to dismiss denied. Opinion. — This is a writ of error to the Supreme Court 26 CASES STJMMAEILY of the State of Minnesota, and a motion is made to dismiss it for want of jurisdiction. It will sufficiently apjiear in the opinion on the merits, that the rights asserted by both parties are founded on acts of Congress, and require the construction of those acts to determine their conflicting claims. The motion to dismiss, therefore, cannot prevail. Grame, Exectjtok, v. Mutuaij Assueaxcb Company; GoDDiN, ExECUTOE, V. Same, 112 U. S. 273. FEDEBAIi QdESTION — -TlEE InSTJEANCE. A suit on a policy for the destruction of property which caught fire from contiguous property burned by order of the Confederate authorities on the evacuation of Kichmond — the policy expressly excepting losses resulting from riots, civil commotions, insurrections, or invasions of a foreign en- emy — does not present a Federal question. Motion to dismiss granted. Opinion. — We have no jurisdiction in these cases. The suits were brought on policies issued by the Mutual Assur- ance Society of Virginia, one to John Grame and the other to Seymour P. Vial, insuring certain buildings of the re- spective parties against such losses or damages as might be occasioned by accidental fire or lightning, but expressly ex- cepting from tlie risks, losses which resulted from riots, civil commotion, insurrections, or from tlie invasion of a foreign enemy. The defense was that the loss was not occasioned by an accidental fire, but that it resulted from a fire pur- posely set by the Confederate authorities on the evacuation of Eichmond, in April, 1865, as a war measure, for the de- struction of tobacco and military stores which were liable to capture by the forces of the United States. Neither party set up or claimed in the pleadings " any title, right, privi- DISPOSED OF OJS- MOTION. 27 lege, or immuuity . . . under the Constitution, or any treaty or statute of, or commission held or authority exercised under, the United States." On the trial it was conceded that the buildings were de- stroyed in the progress of a fire purposely- set by the order of the Confederate States government on the evacuation of Richmond, " in pursuance of its laws and policy to destroy military stores and tobacco which were liable to capture by the forces of the United States." The buildings insured were not actually set on fire by the Confederate authorities, but they caught from a fire that was so set. On these facts the Supreme Court of Appeals of "Virginia decided that the society was not liable under its policies. In the opinion filed the court said : "It is plain that this fire, from which the appellants' buildings were burned^ resulted from the act of these, military officers, acting under express orders and by virtue of an act of Congress of the Confederate States of America. Certainly it cannot be said that the fire which consumed the buildings of the appellants was an acci- dental fire or a fire by lightning. The question is, how did such fire result and how was it occasioned ? If it was occa- sioned by accident or by lightning, the company is respon- sible. It is not responsible if occasioned by or resulting from riots, insurrection, civil commotion, or the invasion of a foreign enemy." Then, after considering the facts, it is further said : " I suppose that 'civil commotion' must neces- sarily arise where there is civil war. It is true there may be civil commotion without civil war, but certainly there cannot be civil war without civil commotion, and I think no man who lived in the late decade would say that there was no civil commotion between 1861 and 1865. But the company not only protected itself against liability for loss occasioned by riots, insurrection, and civil commotions, but against the ' invasion of a foreign enemy.' In the light of history and of facts, familiar to every man who opens his 28 CASES SUMMARILY eyes and sees material facts before him, is it not plain that the late war was a war of invasion, and that it was the inva- sion of an enemy, and that it was the invasion of ' a foreign enemy ?' " And again : " Now, many authorities and opin- ions might be qftoted to the same effect, but, I think, those already referred to are sufficient to show that the Confederate States of America were, certainly as long as the war lasted, a separate and independent government and foreign to the United States of America." It is upon these expressions in the opinion of the court, and others like them, that our jurisdiction is supposed to rest, but it must be borne in mind that the only question for decision was whether the society was liable on its policies for losses which resulted from such a fire as that in which the insured buildings were destroyed. The inquiry was not as to the rights of the respective parties under the Constitu- tion and laws of the United States, but as to what was meant by certain words used in the contracts they had entered into ; not whether secession was constitutional, and the Confederate government, which grew out of it, a lawful government, having authority to order the fire to be set ; but whether that government did so order, and, if it did, whether the fire which followed was a fire which resulted from civil commo- tion, insurrections, or the invasion of a foreign enemy within the meaning of those terms as used in the policies sued on ; not whether the entry of the forces of the United States into Richmond was in fact the invasion of a foreign enemy, but only whether it was so in its legal effect upon the rights of the parties under their contracts. These are clearly ques- tions of general, not Federal, law, and such being the case, the decision of them by the Court of Appeals is not review- able here. The motions to dismiss are granted. DISPOSED OF ON MOTION. 29 Adams Co. v. Burlington, etc., E. E. Co., 112 U. S. 123. Fedeeax Qtjestiok. "Where the decision of a State court rested upon a n«n-federal question, this court has no jurisdiction, though there may also have been a Federal question raised. Motion to dismiss granted. Opinion. — This is a suit in equity brought Ijy Adams County, Iowa, the plaintiff in error, on the 23d of December, 1869, against the Burlington and Missouri Eiver Eailroad Company, in a State court of Iowa, to quiet its title to sixty- six forty-acre tracts of land. The county asserts title under the swamp-land act of September 28th, 1850, 9 Stat. 519, eh. 84, and the railroad company under the Iowa land grant act of May 15th, 1856, 11 Stat. 9, ch. 28. The company, in its answer, denied the title of the county, on the ground that the lands were not swamp lands within the meaning of the swamp-land act, and took issue on every material aver- ment of fact in the bill to support a title under tliat act. It then set up its own title under the land grant act. The pe- tition averred a selection of the lands in dispute, as swamp lands, by Walter Trippett, county surveyor of the county, under the authority of the Secretary of the Interior and Commissioner of the General Land Office, as well as the Governor and Legislature of Iowa, and the report thereof, in duo form, to the Commissioner of the General Land Office, on the 30th of September, 1854. On account of this selection and report, it was claimed that the right of the State to a patent for the lands selected was perfected by the Act of March 3d, 1857, ch. 117, 11 Stat. 251. The railroad com- pany filed an answer in the nature of a cross-bill asking for affirmative relief on the following facts : " Petitioner further states that on th« 25tli day of October, -1861, the claim or right of said plaintiff to said lands, under 30 CASES SUMMAEILY and by virtue of said pretended selection of said Trippetl, was submitted to the Commissioner of the General Land Of- fice for final adjudication, and defendant appeared before said commissioner and resisted the claims of said plaintiff to said lands, and asserted its rights thereto as lands granted to the State of Iowa for railroad purposes, and said commissioner, after full and careful examination of the plaintiff's claim, re- jected the same as fraudulent and unfounded, and afterward,, on the 2oth of October, 1862, said commissioner certified and conveyed said lands to the State of Iowa for railroad pur- poses, under and in pursuance of act of Congress of date of May 15th, 1856. . . . And that on the ■: day of , the said State certified and conveyed the same to defendant in pursuance of the said act of the legislature of the said State of date of , 1856. . ., . Defendant here avers the fact to be that the said plaintiff, well knowing that her claims to said lands were fraudulent and unfounded, did, upon the said decision of the said commissioner against her, voluntarily abandon all claim, right, or interest in said landSj and has since the date of such decision, and up to the time of the commencement of this suit, recognized and treated defendant as the owner of said lands ; that the said county of Adams, since the 25th day of October, 1861, has, by numerous and repeated acts, not only abandoned all claims to said lands, but has recognized, treated, and acknowledged the same to belong to defendant ; that since the date of said decision said county has regularly each year (np to and in^ eluding the year 1871) listed and assessed said lands as the land of the defendant, and has, since the date aforesaid, regu- larly levied and collected taxes thereon from defendant. That the taxes thus levied and collected on said lands from defendant sincie the 25th day of October, 1861, would, with the legal interest thereon, amount to about ten thousand dol- lars. That prior to the 25th of October, 1861, the county had assumed to contract portions of said land to certain in- DISPOSED OF ON MOTION. 31 dividuals under the pre-emption laws, and some of said pre- emptors had taken possession of said land and made valuable improvements thereon, but that plaintiff, af*:er that date, ceased to take any further notice or control of said laud, or attempt in any manner to fulfill their said agreement with said pre-emptors ; and relying upon their title to said lands,' and having every reason to believe, from the acts and con- duct of the plaintiff, that she had acquiesced in the decision of said commissioner, and abandoned all claims to said lands, defendant contracted with said pre-emptors, and with the knowledge of the plaintifi', and without any objections being made by said plaintiff, defendant sold and conveyed by warranty deed parcels of said land aforesaid, and defendant afterward, and before the commencement of this suit, sold and conveyed by warranty deed these portions of said land to different persons, many of whom are now, and for the last six years have been, in the actual possession of the same, and have made valuable improvements thereon. That on the 17th day of June, 1869, the said plaintiff, for the purpose of inducing defendant to bring said lands into market, made and entered into a written contract, whereby she expressly recognized defendant's ownership of said lands, and agreed, in consideration of defendant's bringing said lands into mar- ket, and selling the same to settlers, to remit a portion of the taxes that she had levied thereon, and defendant then and there paid to said county the sum of ten thousand dol- lars, as taxes on certain lands, including the laud in con- troversy." The prayer was " that plaintiff's bill may be dismissed, and that defendant have and obtain a decree and judgment quieting their title to said lands, and for costs of this case ;" and if the title of the defendant was not sustained, that there might be a judgment in favor of the defendant and against the county for the taxes that have been paid on the land. Under these pleadings testimony was taken, and the cause S2 CASES SUMMAEILY heard in the court of original jurisdiction, where, on the 8th of May, 1878, a decree was rendered dismissing the plain- tiff's bill, and " finding that the allegations of defendant's cross-bill are true, and that the defendant is entitled to the relief prayed for ; that the lands in controversy . , . were duly certified to the defendant as land inuring to it, as al- leged in the cross-bill ; that the defendant became thereby tlie legal owner of said lands, as alleged in the cross-bill ; that the plaintiff has, since 1 862, recognized and treated said defendant as the owner of said land, as alleged in said cross- bill ; and plaintiff is now, by such acts and conduct, estopped from claiming the same or denying the defendant's title thereto." Upon this finding, the decree established the title of the company, and quieted it as against the claim of the county. From this decree an appeal was taken to the Supreme Court of the State, where, on the 24th of October, 1879, it was affirmed. Thereujjon, the county presented to the chief justice of the Supreme Court a petition for the allowance of a writ of error to this court. In tiiis petition, it was stated that " in the pleadings, record, judgment, and decree . . . there was drawn in question the rights " of the county under the swamp-land act and the Act of March 3d, ] 857, as well as the construction of the acts making the railroad grant, and that the decision was against the right claimed by the county. In his certificate of allowance of the writ, the chief justice stated that he found from the record that the " facts stated in the petition are true." The case was several times considered by the Supreme Court before the final judgment of affirmance was rendered, and the record contains four opinions, filed at different times in the course of the proceeding, from which it appears, in the most posi- tive manner, that the decision of the cause in favor of the company was placed entirely on the ground of estoppel, as DISPOSED OF OX MOTION. 33: set up in the cross-bill. The original title of the county is nowhere, in any of the opinions, disputed or denied. A motion js made to dismiss the writ to this court for want of jurisdiction on the ground that no Federal question is involved. To give us jurisdiction of a writ of error for the review of a judgment of a State court, it must appear affirmatively, not only that a Federal question was raised and presented for decision to the highest court of the State having juris- diction, but that it was decided, or that its decision was necessary to the judgment that was rendered. The cases to this effect are numerous. Murdock v. Memphis, 20 Wall. 590, 636 ; Chouteau v. Gibson, 111 U. S. 200. This record shows that there were two questions presented by the plead- ings, to wit : 1. "Whether the county acquired a title in equity to the lands in dispute under the operation of the swamp-land act, supplemented as it was by the Act of March 3d, 1857 ; and, 2. Whether, if it did, it was estopped by its subsequent acts from setting up that title as against the railroad com- pany. It may be conceded that the first of these questions was Federal in its character, but we are clearly of opinion the second was not. A consideration of no act of Congress was involved in its decision. There was nothing in the swamp- land grant to prevent the county from surrendering the property to the railroad company, if that was thought best. Under this defense the validity of the original title was not disputed. The claim was that, in legal effect, that title had been ceded to the railroad company, and that the county was in no condition to demand it back. There was no dispute about the Federal right itself, but about the consequences of what had been done by the parties in respect to it, after 3 34 CASES SUMSIARIIA' the title had passed in equity from the United States to the county. To our minds, for the purposes of the present question, the case is, in all respects, the same as it would be if the dispute had been about the effect of an instrument intended as a conveyance of the property from the county to the company. The controversy is not as to the right to con- vey, but as to the effect of what has been done to make a conveyance. That depends not on Federal, but on State law. It is contended, however, that inasmuch as the alleged compromise between the county and the company included, among other things, the claim of the county for taxes levied on the lands, the right to tax the lands before a patent was issued for them by the United States, must have been passed upon by the court below in the decision that was rendered. Clearly this is not necessarily so. The company claims nothing under the taxation. Its rights against the county do not depend on the validity of the taxes. The right to tax was one of the matters in dispute between the county and the company, and that was compromised Avith the rest. The effect of the compromise upon the title of the county would be the same whether the tax was properly levied or not. It follows, therefore, that the decision of the court below on this branch of the case did not involve the ques- tion of the validity of the title set up by the county under, laws of the United States. This brings us to the inquiry, whether it appears suffi- ciently that the case was disposed of below on this defense. If it does, the motion to dismiss must be granted, and, having no jurisdiction, we cannot pass on the correctness of that decision. The record discloses that this separate and distinct defense was made, and that it in no way depended ©n the validity or invalidity of the original title of the DISPOSED OF ON MOTION. 35 county. la our opinion it is clearly to be inferred from the decree of the court of original jurisdiction, -which was affirmed by the Supreme Court, that the decision in favor of the company was placed entirely on that ground. So far as the original bill of the county is concerned, the decree finds in favor of the company and dismisses the bill. Then, as to the cross-bill, it finds the legal title to be in the com- pany, and that the county is estopped from claiming the lands or denying the company's title thereto. This, of itself, implies that there was, in fact, no decision against any right, title, privilege, or immunity claimed under the Constitution or laws of the United States, and that the decree rested alone on the defense of estoppel, which was broad enough to control the rights of the parties without disposing of the Federal question which it was attempted to raise. In other words, it was adjudged by the State court that the title of the company must prevail in this suit, because the county was precluded by its conduct from in- sisting to the contrary. But if we look to the opinions which, under the laws of Iowa, must be filed before a judg- ment is rendered, and which, when such is the law, may certainly be looked at to aid in construing doubtful ex- pressions in the decree, it is shown unmistakably that the decision was put on that ground alone. In the petition which was presented to the chief justice of the court for the allowance of a writ of error, it was stated "that in the pleadings, record, and judgment and decree, there were drawn in question" the rights of the county under the swamp-land acts as well as the construction of the land-grant acts, and that the judgment was against these rights. The chief justice, in his allowance of the writ, certified that he found the statements in the petition to be true, but if this certificate is to have any effect at all upon this question, it certainly cannot be taken as con- clusive when the same chief justice, in an opinion on file 36 CASES STJMMAEILY in the case, places the decision entirely on the ground of estoppel. It follows that we have no jurisdiction, and The motion to dismiss is granted. Santa Cetjz County Supeevisoes v. Sakta Ceuz Eaii> EOAD Company, 111 U. S. 361, Fedeeal Question — ^Practice. A suit to require the commissioners of a county to deliyer certain bonds claimed by the plaintiff under a contract, the defense resting on the con- struction to be given to certain State statutes, the constitutionality of which was not questioned, does not present a Federal question. Motion to dismiss granted. Opinion. — This was a suit brought by the Santa Cruz Railroad Company to require the board of commissioners of the county of Santa Cruz to deliver certain bonds, claimed to be due from the county under a contract with the railroad company. The defenses were, 1st, that the contract was unilateral, and, therefore, not binding on the county ; 2d, that the board of supervisors exceeded its authority in mak- ing the contract ; and 3d, that a repealing statute, passed after the contract was entered into, took away the power of the board to make any further deliveries of bonds. No ob- jection whatever was made to the validity of the statute under which the board assumed to act in making the contract. The whole defense rested on the construction and effect to be given to certain statutes, which no one denied the constitu- tional power of the legislature to enact. The ground of Federal jurisdiction, relied on in the brief of counsel for the county, is, that by the issuance of the bonds demanded in this proceeding, the State would deprive DISPOSED OF ON MOTIOIT. 37 the taxpayers of the county of Santa Cruz of property without due process of law, contrary to the right, privilege, or immunity secured by the first section of the Fourteenth Amendment of the Constitution of the United States. That was not the question presented to or decided by the State court. In that court the inquiry was, whether the pro- ceedings of the board to charge the county were according to law ; not whether the law under which the proceedings were had was constitutional and binding on the taxpayers. The State court decided tJiat tfce proceedings were in accord- ance with the requirements of the law, and thus •created an obligation on the part of the county to deliver the bonds, which was not discharged by the repealing statute relied on. This decision involved no question of F-ed-eral law, and is not reviewable here. The moikm to dismise is granted. Susquehanna Boom Company v^ West Branch Boom Company, 110 U. S. 57. Fedebai/ Question. Judgments of State courts <;ati be reviewed here only when the Federal question involved is raised in a manner to enable the court below to see that such question is necessarily involved in tbe ■decision. It is not suffi- cient to give this court jurisdiction, that the Federal question is raised by petition for a rehearing. Motion to dismiss granted. Opinion. — The Susquehanna Boom Company was incor- porated by the General Assembly of Pennsylvania on the 26th of March, 1846, and as early as 1849 erected, under its charter, a boom in the "West Branch of the Susquehanna River, at Williamsport, for the purpose of securing logs and other lumber floating in the river. Its charter did not pur- port to confer upon it any exclusive rights to the use of the river above the boom for bringing logs down. 38 CASES STTMMARILY On the 26th of March, 1849, the West Branch Boom Company was incorporated to construct and maintain a boom on the south side of the West Branch at Lock Haven, about twenty-five miles above Williamsport. Under its charter this company M'as not allowed to extend its boom more than halfway across the river, but it could "erect such piers, side branches, or sheer booms," as might be necessary. With this authority a sheer boom was constructed in the north half of the stream. This suit was begun in a State court of Pennsylvania, to enjoin the West Branch Company from maintaining such a sheer boom, on the ground that under its charter no such structure could be placed by it on the north side of the branch. The Supreme Court of the State, on ap- peal, decided that it could put in and maintain such a sheer boom, and adjudged accordingly. To reverse that judgment this writ of error was brought. The West Branch Company now moves to dismiss the writ because no Federal question is involved. It is clear to our minds that we have no jurisdiction. The -Constitution protects State corporations in such contracts with the State as their charters imply. The Susquehanna Com- pany, whose rights are involved, was given full authority to erect and maintain its boom at Williamsport. That un- doubtedly implied the right to use the river as others used it for bringing logs to the boom. The West Branch Company was also authorized to construct its boom in the south half of the river at Lock Haven. Whether it could, under its charter, put a sheer boom in the north half seems to have been a question with the Susquehanna Company, and this suit was brought to have that question settled. That is clearly all there was in the case up to the time of the final decision of the Supreme Court, whose judgment we are now called on to review. There is nowhere, either in the plead- ings, the evidence, or the suggestions of counsel, prior to the judgment, so far as we have been able to discover, even an DISPOSED OF ON' MOTIOX. 39 intimation that the Susquehanna Company claimed any con- tract right, under its charter, to exclude the West Branch Company from such use as that company was making of the north half of the stream. The only controversy apparently was about the right of the West Branch Company, under its charter, to such use at all. " Certainly," as was said in Brown v. Colorado, 106 U. S. 95, " if the judgments of the courts of the States are to be reviewed here on such" [that is to say Federal] " questions, it should only be when it appears unmistakably that the court either knew, or ought to have known, that such a question was involved in the decision to be made." The fact that on a petition for rehearing it was suggested that if the charter of the West Branch Company was so con- strued as to give it the right to maintain its sheer boom in the north half of the stream, that charter would impair the obligation of the contract of the State with the Susquehanna Company, is unimportant here, because our jurisdiction ex- tends only to a review of the judgment as it stands in the record. We act on the case as made to the court below when the judgment was rendered, and cannot incorporate into the record any new matter which appears for the first time after the judgment, on a petition for rehearing. Such a petition is no part of the record on which the judgment rests. The motion to dismiss is granted. Ceossley v. City op New Oeleans, 108 U. S. 105. Fedebai. Question. Where, in a State court, the Federal question raised was not, and need not have heen, decided, but the case was decided on non-federal questions, this court has no jurisdiction. Motion to dismiss granted. Opinion. — The record shows that the defendants in error 40 CASES SUMMAEILY sought to enjoiu the collection of a judgment against their property to enforce au assessment under the drainage laws of Louisiana: 1, because under the operation of the laws authorizing the judgment nothing more remained to be paid thereon ; and, 2, because the judgment had, in terms, been released and discharged by certain acts of the general assem- bly of the State passed in 1877 and 1878. If the case was decided below on the first of these grounds, no Federal ques- tion is involved. It was settled long ago that, in cases coming to this court from the Supreme Court of Louisiana, the opinion of the court below, as set out in the record, may be referred to, if necessary, to determine whether the judgment is one we have authority to review. . . . From the statement of the case and the opinion found in this record, it is manifest the deci- sion was placed entirely on the ground that the judgment was not collectible under the law as it stood before the acts of 1876 and 1877 were passed. Consequently the case was disposed of before the Federal question presented by the pleadings was reached, and that question was not and need not have been decided. Under these circumstances we have no jurisdiction, and the Motion to dismiss is granted. Miller v. Lancastek Bank, 106 U. S. 542. Federal Question — Party in Interest. This court will dismiss a writ of error to a State court, though a Federal question be involved, if the right claimed was not for the party claiming it, but was the title of another set up by way of defense. Motion to dismiss granted. Opinion. — From this record it appears that one S. W. Miller, being insolvent, made an assignment of his property to M. J. Durham, trustee, for the benefit of his creditors. The trustee afterward instituted a suit in the Boyle Circuit DISPOSED OF ON MOTION. 41 Court of Kentucky to enforce his trust. To this suit S. D. Miller and E. B. Miller, two of the present appellants, were parties ; and in due course of proceeding a decree was entered for the sale of the assigned property. In this decree it ap- pears that S. D. Miller and E. B. Miller, who were then in possession of part of the premises under a lease, were per- mitted to hold until the 31st of December, 1880, but it was added : " Said S. D. Miller and Ed. B. Miller agree to give said trustee the full, entire, and peaceable possession of the house and lands they use and occupy, on or before the 31st day of December next, and on their failure so to do, the trustee, Durham, may have a writ of habere facias posses'- sionem against each of them, and the clerk of this court is hereby directed to issue the same." Under this decree the property now in question was sold and duly conveyed to the First National Bank of Danville. The Danville Bank afterward sold and conveyed the prop- erty to the National Bank of Lancaster, a bank organized under the national banking law. . . . After these convey- ances were made, a writ was applied for under the decree, in behalf of the Lancaster Bank, and issued to John Meyer, sheriff of the county, commanding him to take the posses- sion of the property from S. D. Miller and E. B. Miller, and deliver it to Durham, the trustee. Thereupon S. D. Miller, E. B. Miller, and John W. Miller, the last of whom had in some way got into possession of the property after the de^ cree, filed a petition in the Boyle Circuit Court against the Lancaster Bank and the sheriff, to enjoin the execution of the writ, on the ground that it was issued without authority and was void. In this petition it was alleged that the Lan- caster Bank had no power under its charter to take and hold the property, and that consequently the deed to it was inop- erative and void. There were also allegations of irregularity in the form of the writ, and that since the decree, Durham, the trustee, had sold and conveyed the property to the Dan# 42 CASES SUMMARILY ville Bank. To this petition the Lancaster Bank filed an answer and counter-claim. In the counter-claim the bank set up its title through the sale under the decree. The prayer was that the petition of the plaintiffs be dismissed, and a judgment rendered for the recovery of possession. Upon the hearing the writ which had been issued was set aside for irregularity, but a new writ was awarded the bank. From a judgment to that effect an appeal was taken to the Court of Appeals of Kentucky, where the judgment was affirmed. To reverse this judgment of affirmance the pres- ent writ of error was brought. Our jurisdiction depends on the question whether the plaintiffs in error have been denied by the judgment below any "title, right, privilege, or immunity specially set up or claimed " under the banking act. As early as 1809 it was held by this court in Owings v. Norwood's Lessee, 5 Cranch, 344, that in order to give us jurisdiction in this class of cases, the right, title, or immunity which is denied, must grow out of the Constitution, or a treaty or statute of the United States relied on. Under -this rule jurisdiction was not taken in that case, although it was an action of ejectment by Norwood's lessee, and the record showed that an effort was madeto defeat the recovery because of an outstanding title in a third person adverse to Norwood and protected by a treaty. Mr. Chief Justice Marshall, in speaking for the court, said : " Whenever a right grows out of, or is protected by, a treaty, it is sanctioned against all the laws and judicial decisions of the States, and whoever may have this right is to be protected. But if the person's title is not affected by the treaty, or if he claims nothing under a treaty, his title cannot be protected by the treaty." The principle thus an- nounced has been recognized in many cases since. . . » Henderson v. Tennessee, 10 How. 311, like Owings v. Nor- wood's Lessee, was an action of ejectment, and the effort was to defeat the recovery by showing an outstanding title DISPOSED OP ON MOTION. 43 in a third person under a treaty with which the party in possession did not connect himself; but the jurisdiction was denied, Mr. Chief Justice Taney saying, in the opinion : " The right to malie this defense is not derived from the treaties, nor from any authority exercised under the general government. It is given by the laws of the State, which provide that the defendant in ejectment may set up title in a stranger in bar of the action. It is true the title set up in this case was claimed under a ti-eaty. But to give jurisdic- tion to this court the party must claim the right for himself, and not for a third person in whose title he has no interest." And in Hale v. Gaines, 22 How. 144, it was said : " The plaintiff in error must claim (for himself) some title, right, privilege, or exemption under an act of Congress, etc., and the decision must be against his claim to give this court jurisdiction. Setting up a title in the United States by way of defense is not claiming a personal interest affecting the subject in litigation." In our opinion these cases are conclusive of the present motion. The plaintiffs in error set up no title against the bank. In effect, they seek to prevent the issue of an execu- tion on a judgment against them, or those under whom they claim, because, as between the Danville Bank and the Lan- caster Bank, a conveyance made by the Danville Bank of the property to be delivered under the execution is inoperative on account of the provisions of the banking law. What was done between the two banks had no effect on the title of the parties in possession, and it was a matter of no importance to them whether the execution issued on the application of the one or the other. Clearly, therefore, the plaintiffs in error occupy no other position than that of parties setting up title in the Danville Bank by way of defense, and that is not claiming for themselves any title, right, privilege, or im- munity given by the law. Motion granted. 44 CASES STraiMARrLY BouGHTON V. Exchange Bank, 101 U. S. 427. FEDEBAii Question. To give this court jurisdiction to review a judgment from a State court, tlie record must show aflBrmatively, or by fair implication, that some Federal question was involved which was necessary to the determination of the cause. Motion to dismiss granted. Opinion. — To give us jurisdiction for the review of a judgment of a State court, the record must show affirma- tively, or by fair implication, that some Federal question was involved which was necessary to the determination of the cause. The defense set up in this case was that the notes sued on were void for usury under the laws of New York, where they were made. Judgment was given against the plaintiff in error for want of a sufficient affidavit of defense. This judgment would be right if the affidavit was not such as was required by law or the practice of the court for the presentation of a defense like that relied on. As it is in- cumbent on him to show by the record, not only that this was not the ground of the decision below, but that some wrong determination of a Federal question was — and it has not been done — we might dismiss the suit without further examination; but on looking into the opinion which has been sent up with the record, we find that the Court of Ap- peals based its judgment, which alone we can review, entirely on the fact that the affidavit was not sufficiently specific in its averments to meet the requirements of the rules of plead- ing applicable to such cases. It is clear, therefore, that we have no jurisdiction. Motion granted. DISPOSED OF ON MOTION. 45 PoppE V. Langfoed, 104 U. S. 770. Federal Question. A decision as to the effect of adverse possession of lands for a period which would be a bar to a recovery in ejectment, dues not present a Fed- eral question. Motion to dismiss granted. Opinion. — It is clear we have no jurisdiction in this case. All the court below decided was, that in California the title of the true owner of lands is extinguished by an adverse possession under color of right for the length of time which would be a bar to a recovery in ejectment. This is not a Federal question. All that was said about § 1007 of the Civil Code of California was unnecessary and not required in the determination of the cause. Motion granted. Lang v. Benedict, 99 U. S. 68. Feberaij Qtjestion — Damages. A suit for damages against a judge who pronounced an illegaj judgment of imprisonment, does not present a Federal question. Motion to dismiss granted. Opinion. — In JEx parte Lange, 18 Wall. 163, we decided that the present plaintiff in error must be discharged from imprisonment, because the sentence under which he was held was not authorized by law. In the present case the Court of Appeals of New York held that even though such was the law the defendant in error is not liable in damages for the false imprisonment, because, in pronouncing the judg- ment under which the imprisonment was had, he acted as a judge, in his judicial capacity, and not so entirely in excess of his jurisdiction as to make it the arbitary and unlawful 46 CASES SUMMAKILY act of a private person. This is not a Federal question, and it was the only question decided. The writ must, therefore, be dismissed for want of juris- diction J and it is So ordered. Bank v. McVeigh, 98 U. S. 332. Federal Question — Commeecial Law — Notice op Peotest. The decision below being " upon principles of general law alone,'' raising no Federal question, the writ of error is dismissed. Motion to dismiss granted. Opinion. — The motion to dismiss this case for want of jurisdiction will be granted upon the authority of Bethell v. Demaret, 10 Wall. 537 ; Delmas v. Insurance Company, 14 id. 661 ; Tarver v. Keach, 3 5 id. 67 ; Rockhold v. Eockhold et al, 92 U. S. 129 ; New York Life Insurance Co. v. Hen- dren, id. 286. All the court below decided was, that by the general principles of commercial law, if during the late civil war, an indorser of a promissory note abandoned his resi- dence in loyal territory, and went to reside permanently within the Confederate lines before the note matured, a no- tice of protest left at his former residence in the loyal terri- tory was not sufficient to charge him if his change of resi- dence was known, or by the exercise of reasonable diligence might have been known, to the holder of the note when it matured. It is true that, upon a former decision of the same cause, something was said in the opinion of the Court of Appeals as to the effect of the ordinance of secession of Virginia upon the rights of the parties, and that upon the last trial in the Corporation Court an effort was made by the plaintiff in error to obtain a ruling upon the constitu- tionality of that ordinance ; but it is equally true that the Corporation Court declined to rule at all upon the question, and that the Court of Appeals, in the opinion filed with the DISPOSED OF ON MOTION. 47 judgment brought here for review, says : "The court before refused to give any opinion on the constitutionality of tlie ordinance of secession, as it does now, such question being irrelevant and not involved, as we think, in the decision of the cause. The decision of this court would be the same, whether it held the said ordinance of secession to be consti- tutional or unconstitutional." A careful examination of the record satisfies us of the correctness of this statement. The case was decided " upon principles of general law alone," and it nowhere appears in the record that the plaintiff in error set up or claimed any "title, right, privilege, or immunity" under the Constitution or authority of the United States, which was denied him by the decision below. Writ dismissed. MoStay et cd. v. Fhiedman, 92 U. S. 723. Federal Question. Where, in ejectment for land confirmed to a city by an act of Congress, the parties rely upon questions not involving the congressional act, this court has no jurisdiction to review the judgment of a State court. Motion to dismiss granted. Opinion. — This was an action of ejectment brought by Friedman to recover the possession of a certain parcel of the Pueblo lands, confirmed to the city of San Francisco by the act of Congress passed March 8th, 1866 (14 Stat. 4). He did not attempt to connect himself with the city title, but relied entirely upon his alleged prior possession and that of his grantors. The defendants, who are the plaintiffs in error, set up in their answer as defenses (1), adverse pos- session, with specifications to bring themselves within the operation of the Statute of Limitations ; and (2) the title of the city of San Francisco under the act of Congress, and an assignment of that title to themselves, pursuant to the 48 CASES SUMMARILY provisions of an ordinance of tlie city and an act of the legislature of California. At the trial no question was raised as to the validity or operative effect of the act of Congress. The effort on the part of the plaintiffs in error seems to have been (1) to establish their defense under the Statute of Limitations; and (2) to prove such possession as would, according to their claim, transfer the city title to them, under the operation of the city ordinance and the act of the legislature. No Federal question was involved in the decision of the Supreme Court. The city title was ^ not drawn in question. The real controversy was as to the transfer of that title to the plaintiffs in error ; and this did not depend upon the " Constitution or any treaty or statute of, or commission held or authority exercised under, the United States." The case is, therefore, in all essential particulars like that of Romie d al. v. Casanova, 91 U. S. 379 ; and the writ must be Dismissed for want of jurisdiction. Wolf v. Stix, 96 U. S. 541. Federal Question. After a decree in a clianoery suit brought to set aside a sale of goods on the ground of fraud against creditors, this court cannot take jurisdiction, notwithstanding a petition was filed in the suit, praying that the decree be set aside and leave granted to introduce evidence of a discharge in banliruptcy. M6tion to dismiss granted. Opinion. — This was a bill in chancery, filed by Louis Stix & Co. in the Chancery Court of Shelby County, Ten- nessee, in accordance with the laws and practice of that State, against Marks, Pump & Co. and M. Wolf, to recover a debt due them from Marks, Pump & Co., and to set aside a sale of goods by the latter firm to Wolf, because, as alleged, DISPOSED OF ON MOTION. 4^ it was made to defraud creditors. A writ of attachmeut was sued out upon this bill, and the goods were attached in the possession of Wolf. By the Code of Tennessee (§ 3509), the defendants to an attachmeut suit may I'eplevy the property attached by giving bond, with good security, payable to the plaintiff, in double the amount of the plaintiff's demand, or at the de- fendant's option, in double the value of the property attached, conditioned to pay the debt, interest, and cost, or the value of the property attached, with interest, as the case may be, in the event he shall be cast in the suit ; and in such case (§ 3514) the court may enter judgment or decree upon the bond, in the event of a recovery by the plaintiff, against the defendant and his sureties, for the penalty, of the bond, to be satisfied by the delivery of the property or its value, or payment of the recovery. Wolf replevied the property attached in this case, claim- ing to be the owner, and gave a replevin bond with Lowen- stein and Helman as his sureties, in which the goods were valued at ten thousand dollars. In December, 1872, the Chancery Court decided that there was no fraud in the sale to Wolf; and Marks, Pump & Co. having been discharged in bankruptcy from their debt, the bill was dismissed. From this decree Stix & Co. appealed, March 21st, 1873, to the Supreme Court. March 28th, 1874, Wolf obtained a discharge in bankruptcy from his debts. April 28th, 1877, the Supreme Court reversed the decree of the Chancery Court in the suit of Stix & Co., and entered a decree against Wolf, and Lowenstein and Helman as his sureties in the replevin bond, for sixteen thousand two hundred dollars, the value of the goods and interest, and awarded execution thereon. May 3d, 1877, Wolf and his sureties petitioned the court to set aside this decree, and permit them to come in and plead in that court the discharge of Wolf, or, if that could not be done, to remand the cause, after reversing the 4 50 CASES SUMMARILY decree below, so that the defeuse might be made in the Chancefy Court; but the Supreme Court being of the opinion that no new defense could be made in that court, and that it was not allowable to set up the defense in bank- ruptcy by any proceeding there for that purpose, refused the petition, and permitted the decree to stand as already entered. From this statement of the case it is apparent that no Federal question was actually decided by the court below, and that none was involved in the decision as made. The discharge in bankruptcy was granted more than three years before the action of the Supreme Court which is complained of, and no attempt was made to bring it to the attention of that court until after a decree had been entered in the cause. Upon the face of the record proper, therefore, no Federal question could liave been decided, because none was raised. But upon the case as made by the subsequent petition to set aside the decree the parties occupy no better position, be- cause the court did not decide that the discharge was inop- erative as a release of the obligation involved in the suit, but only that the defense of a discbarge in bankruptcy after the decree below could not be set up in the Supreme Court, as no new defense could be made there. Such a defense may be made in Tennessee by bill in chancery after the decree in the Supreme Court, but not by the suggestion of the fact in that court. It was so decided in Anderson v. Reaves, at the January Term, 1877, of the Supreme Court of that State, as is shown by a copy of the opinion printed with the brief filed on behalf of the dtefendant in error in support of this motion. Thus it appears that even upon this motion no Federal question was actually decided, and that, according to the law of Tennessee, none was involved. We see no reason why, according to the practice in tl>at State, the plaintiffs in error are not still at liberty to enforce the discharge in bank- DISPOSED OF ON MOTION. 51 ruptcy against the decree of the Supreme Court by bill in chancery. Writ dismissed. BoLLiNG V. Leesnee 91 U. S. 694. Federal Question. This court cannot re-examine the judgment or decree of a State court simply because a Federal question was presented to that court for deter- mination. It must appear that such a question was in fact decided, or that its decision was necessarily involved in the judgment or decree as rendered. Motion to dismiss granted. Opinion. — The Circuit Court of Fauquier County, Va., rendered a decree in this cause September 13th, 1867. From this decree Lersner prayed an appeal to the District Court of Appeals, May 17th, 1869. This was allowed by W. Wil- loughby, judge. Upon this allowance the appeal was dock- eted in the Appellate Court, and the parties appeared without objection or protest, and were heard. Upon the hearing, the decree of the Circuit Court was reversed, and the cause re- manded with instructions to proceed as directed. When the case came to the Circuit Court upon the mandate of the Ap- pellate Court, Boiling appeared, and objected to the entry of the decree which had been ordered, for the reason, among others, that Willonghby, the judge who allowed the appeal, had been appointed to his office by the commanding-general exercising military authority in Virginia under the recon- struction acts of Congress, and that those acts were uncon- stitutional and void. This objection was overruled, and a decree entered according to the mandate. From this decree Boiling took an appeal to the Supreme Court of Appeals, where the action of the Circuit Court was affirmed. To reverse this decree of affirmance the present writ of error has been prosecuted. We cannot re-examine the judgment or decree of a 52 CASES SUMMARILY State court simply because a Federal question was presented to that court for determination. To give us jurisdiction, it must appear that such a question was in fact decided, or that its decision was necessarily involved in the judgment or de- cree as rendered. In this case, Boiling presented to the court for its deter- mination, the question »f the constitutionality of the recon- struction acts. This was a Federal question ; but the record does not show that it was actually decided, or that its de- cision was necessary to the determination of the cause. While it, perhaps, sufficiently appears that the judge was appointed under the authority of the acts in question, it also appears that he was acting in the discharge of the duties of his office, and that he had the reputation of being the officer he assumed to be. It also appears, that, after the allowance of the appeal, the case was docketed in the Appellate Court; that Boiling appeared there ; that he submitted himself to the jurisdiction of that court without objection, and presented his case for adjudication ; that the case was heard and de- cided ; and that the otgection to the qualification of the judge who allowed the appeal was made for the first time in the Circuit Court, when the case came down with the mandate. From this it is clear that the case might have been disposed of in the State court without deciding upon the constitution- ality of the reconstruction acts. Thus, if it was held that the objection to the authority of the judge came too late, or that the allowance of an appeal by a judge de facto was suffi- cient far all the purposes of jurisdiction in the Appellate Court, it would be quite unnecessary to determine whether the judge held his office by a valid appointment. We might, therefore, dismiss the case, because it does not appear from the record that the Federal question was decided, or that its decision was necessary. But if we go farther, and look to the opinion of the court, which, in this case, has been certified here as part of the DISPOSED OF ON MOTION. 53 record, we find that the Federal question was not decided. All the judges agreed that Willoughby was a judge de facto, and that his acts were valid in respect to the public and third parties, even though he might not be rightfully in office. In this the court but followed its own well-considered hold- ing, by all the judges, in Griffin v. Cunningham, 20 Gratt. 31 ; approved in Quinn v. Cunningham, id. 138 ; and Teel V. Young, 23 id. 69 1 ; and the repeated decisions of this court. . . . Writ dismissed for want of jurisdiction. "Waefield v. Chaffe et al., 91 U. S. 690. FeDBRAX QtTESTION. Where the record does not show that a Federal question was raised, though the petition for allowance of the writ of error alleges that such a question was relied upon, this court has no jurisdiction. It must appear in the record. Motion to dismiss granted. Opinion. — This action was commenced in the Fourteenth District Court in and for the Parish of Ouachita, Louisiana, to recover the amount due upon a note made by Mrs. War- field, the plaintiff in error, to W. J. Q. Baker, and by him indorsed to the plaintiffs below — John Chaffe & Brother — and also to enforce a vendor's privilege. Judgment was asked for the amount claimed to be due upon the note, and also for " fifteen dollars costs of stamping." Attached to the petition was a copy of the note, bearing date May 3d, 1867 J below which was the following : "Original act duly stamped and canceled by collector of Third District of Louisiana, this third day of September, 1872. — F. A. Hall, Deputy Recorder." Mrs. Warfield answered the petition ; and, among other defenses, she insisted that there were not any revenue stamps 54 CASES SUMMAEILY on the note when it went into the hands of the plaintiffs, and that they had no authority to put stamps upon it. Slie thus, by the pleadings, tendered an issue of fact. The principal contest between the parties was as to the plaintiff's title to the note ; and W. J. Q. Baker was permit- ted to intervene in his own behalf, and to insist that he was the owner. At the trial in the District Court, no question as to the stamping of the note appears to have been presented or de- cided : certainly no testimony was offered on either side in respect to it. All the testimony in the case appears to be incorporated in the record. Judgment having been given against Mrs. Warfield and Baker in the District Court, they each appealed to the Supreme Court, where the judgment was affirmed in July, 1874. In the opinion of the court, which comes here as part of the record, the only reference to the question of stamps which appears is as follows: "The objection that the note was not stamped, not having been made when it was received in evidence, cannot now be con- sidered." In the petition presented to the chief justice of the Su- preme Court of the State for the allowance of this writ, it is stated, for the first time in the case, that the defendant, Mrs. "Warfield, claimed the privilege, right, and immunity of be- ing relieved and exempted from all liability on the note or obligation sued on, under the laws of the United States re- quiring such instruments to be stamped to give them valid- ity at the time the instrument sued upon was executed; and the decision of the Supreme Court of the State denied the claim. The record sent here from the Supreme Court does not disclose any such claim. The petition for the allowance of the writ in this court is. not part of the record of the court below. We aqt only upon that record ; and that does not show that any Federal question was either presented by the DISPOSED OF ON MOTION. 55 pleadings or upon tlie trial in tiie District Court, or decided by tiie Supreme Court. Writ of error dismissed for want of jurisdiction. Long et al. v. Conveese et al., 91 U. S. 105. Federal Question. To give this court jurisdiction of a decision of a State court, where a title under an act of Congress is in question, tlie title claimed must be claimed for himself and not for a third party in whose title he has no interest. Motion to dismiss granted. Opinion. — Our jurisdiction in this case depends upon the effect to be given to that provision of the Judiciary Act which authorizes this court to re-examine the decisions of the highest court of a State in certain cases, "where any title, right, privilege, or immunity is claimed under" any statute of the United States. The plaintiffs in error did not claim under the assignees in bankruptcy. They set up the title of the assignees, not to protect their own, but to defeat that of the receivers ap- pointed by the State court. They claimed adversely to both the receivers and assignees. They did not even allege that the assignees had ever attempted to assert title. The con- test was One originally for the possession of certain papers. The decree for money was given, because, pending the suit, the papers sought for had been exchanged for money, and the receivers were willing to accept the exchange. In the absence of the assignees from the case, the decree could have no effect upon their title to the coupons or money. If, when the demand was made by the receivers, the plaintiffs in error had surrendered the coupons, that surrender would have been a complete defense to a future action by the assignees, inasmuch as they had not before that time asserted their 56 CASES SUMMARILY claim, either by demand or notice. The title of the as- signees to the property would not have been defeated by the transfer. Whatever rights they had against the plaintiffs in error could be enforced by an appropriate proceeding against the receivers. The whole effect of the surrender, so far as the assignees were concerned, was to transfer the cus- tody of the property from the plaintiffs in error to the re- ceivers. In this case the transfer was not voluntary, but in pursuance of a decree rendered by a court of competent juris- diction, with the assent of the assignees. Under such cir- cumstances it is not easy to see how the assignees can pro- ceed further against the parties, who have only obeyed the commands of the court. Clearly, their remedy, if they have any, is against the property in the hands of the receivers. The second section of the Act of February 5th, 1867 (14 Stat. 385), which was in force when this writ of error was brought, and which has been substantially re-enacted in the Revised Statutes, § 709, differs only from the twenty-fifth section of the Judiciary Act of 1789, so far as the provision now under consideration is concerned, in the substitution of the word "immunity" for "exemption." In the old act the words were "title, right, privilege, or exemption;" in the last, "title, right, privilege, or immunity." This does not materially affect the rights of the parties in the present case. The words, when used in this connection and applied to the circumstances of this case, have substantially the same meaning. The construction of this provision in the Act of 1789 came before this court for consideration as early as 1809, in the case of Owing's Lessee v. Norwood, 5 Cranch, 344. That was an action of ejectment in a State court. The de- fendant, being in possession, set up an outstanding title in a third person under a treaty. The writ of error from this court was dismissed for want of jurisdiction. In the prog- ress of the argument. Chief Justice Marshall used this DISPOSED OF ON MOTIOX. 67 language : " Whenever a right grows out of or is protected by a treaty, it is sanctioned against all the laws and decisions of the States ; and whoever may have this right, it is to be protected. But if the person's title is not affected by the treaty, if he claims nothing under a treaty, his title cannot be protected by a treaty. If Scarth or his heirs had claimed, it would have been a case arising under a treaty. But neither the title of Scarth nor of any person claiming under him can be affected by the decision of this case." In Mont- gomery V. Hernandez, 12 Wheat. 129, a suit was brought in a State court by parties beneficially interested in a bond given to the United States by a marshal to secure the faith- ful performance of his official duties. The suit was in the names of the beneficiaries, and not in tliat of the United States for their use. It was insisted that there could be no recovery, because the action should have been prosecuted in the name of the United States ; and this was assigned for error in this court. But it was said that " the plaintiff in error did not and could not claim any right, title, privilege, or exemption by or under the marshal's bond, or any act of Congress giving authority to sue the obligors for a breach of the condition," and that the court had no jurisdiction of the case on that ground. Again : the same question was presented and elaborately argued in Henderson v. Tennessee, 10 How. 311, decided in 1850. That also was an action of ejectment in a State court, in which the defendant set up an outstanding title in a third person, under an Indian treaty ; and there, too, the writ was dismissed. In delivering the opinion of the court. Chief Justice Taney said : " It is true, the title set up ii) this case was claimed under a treaty ; but to give jurisdiction to this court, tlie party must claim the right for himself, and not for a third person in whose title he has no interest. . . . The heirs of Miller appear to have no interest in this suit, nor can their rights be affected by the decision. The judgment in this case is no obstacle to 58 CASES SUMMARILY their assertion of their title in another suit brought by them- selves or any person claiming a legal title under them." To the same effect are Hale v. Gaines, 22 How. 149, 169, and Verden v. Coleman, 1 Black, 472. This must be considered as settling the law in this class of cases ; and it seems to be decisive of this case. The plaintiffs in error claim no title, right, privilege, or immunity under the bankrupt law. Their obligation to account for the coupons in their hands is not discharged by the law. The title of the assignees cannot be affected by the decree except through tlieir con- sent. It follows, therefore, that this case must be Dismissed for want of jurisdiction. Fashnacht v. Frank, 2.3 Wall. 416. Federal QtTESTioir. Where a petition by a de'endan' in a State court for removal was over- ruled for the reason that a final judgment had been rendeied, no question is presented which this court can re-examine on an appeal from the final judgment, no exception having been taken to the overruling of the petition. Motion to dismiss granted. Opinion. — Previous to the time when a motion for a new trial was made and overruled, no question had been presented in the cause that could under any circumstances give this court jurisdiction upon a writ of error. On the 23d of January a petition was filed by the defendant for the re- moval of the cause to the Circuit Court of the United States. This petition was at once very properly overruled, for the reason that a final judgment had already been rendered. Ko exception was taken to this ruling. So far as appears the defendant was satisfied, as iie should have been, that he could not have relief in that form against tlie judgment ■which had been rendered. On the 31st of January, an DISPOSED OF ON MOTION. 59 appeal from the judgment was taken to the Supreme Court of the State. This was clearly the appropriate remedy for the correction of the errors of the District Court, if ther? were any. The action of the District Court in refusing the removal does not appear to have been presented to the Supreme Court upon this appeal. It could not properly have been presented, because the appeal was from the judg- ment alone, and this action was subsequent to the judgment and independent of it. We act only upon the judgment of the Supreme Court. Only such questions as either have been or ought to have been passed upon by that court iu the regular course of its proceedings can be considered by us upon error. Writ of error dismissed. Smith v. Adsit, 23 "Wall. 368. Federal QiiESTioir. This court has no jurisdiction on writ of error to a State court, where the question was, what amounts to a trust, or out of what facts a trust may spring. These are not Federal questions. Motion to dismiss granted. Opinion. — We do not perceive that this case differs essen- tially from what it was in 1872, when it was dismissed for want of jurisdiction in this court to hear it. In the Suprepie Court of the State it was an appeal from au inferior court, in which it had been sought to enforce an alleged trust by a bill in equity, and the bill was ordered to be dismissed, because the court was of opinion no trust was proved. The record does not show that the question, whether the sale of the land-warrant was a nullity if made before the warrant issued, was passed upon, much less that it was decided against the complainant. The decree ordering the bill to be dismissed must have been made, if it had been decided that 60 CASES SUMMARILY the sale was void. Even then it would have been necessary to establish the existence of a trust. What amounts to a trust, or out of what facts a trust may spring, are not Fed- eral questions, and on a writ of error to a State court we can review only decisions of Federal questions. The case is covered by Smith v. Adsit, in 16 Wallace. Writ of error dismissed. Geegoey v. McVeigh, 23 Wall. 294. Federal Question. Where the highest court of a State declines, under its law of procedure, to review the action of an inferior court, a writ of error to the inferioi court will lie, if a Federal question be involved. The validity of a proceeding under the authority of the United States being drawn in question, a Federal question is involved. Motion to dismiss denied. Opinion. — The motion to dismiss this cause for want of jurisdiction is denied. "A final judgment or decree in any suit, in the highest court of a State in which a decision in the suit could be had," may, in a proper case, be re-examined in this court. The Court of Appeals is the highest court in the State of Virginia. If a decision of a suit could be had in that court, we must wait for such a decision before we can take jurisdic- tion, and then can only examine the judgment of that court. If, however, the suit is one of which that court canuot take jurisdiction, we may re-examine the judgment of the highest court which, under laws of the State, could decide it. The Court of Appeals has revisory jurisdiction over the judgments of the Corporation Court of the city of Alex- andria, but parties are not permitted, in the class of cases to which this belongs, to take such judgments there for review DISPOSED OF ON MOTION. 61 as a matter of right. Leave for that purpose must first be obtained. Two modes of obtaining this leave are provided. One by petition to the Court of Appeals itself, and the other by petition to a judge thereof. If the petition is presented to a judge and he denies it generally without more, it may be again presented to the court. But if the judge to whom the application is made, "shall deem the judgment, etc., plainly right," and reject it on that ground, if the order of rejection shall so state, no other petition shall afterward be presented to the same purpose. Tlie parties are left free to present their petitions to the court or to a judge thereof, as they may find it most convenient or desirable. It has long been settled that if a cause cannot be taken to the highest court of a State, except by leave of the court itself, a refusal of the court upon proper application made to grant the leave, is equivalent to a judgment of affirmance, and is such a final judgment as may be made the basis of proceedings under the apjiellate jurisdiction of this court. In the present case the Court of Appeals has now no power to review the judgment of the court below. It cannot even entertain a motion for leave to proceed. A judgment has been rendered by the highest court of the State in which a decision can be had. The Court of Appeals has never, in fact, had jurisdiction. A suit cannot be taken there, except upon leave, and that leave has, in the regular order of pro- ceeding, been refused in this case. From this refusal there can be no appeal. Everything has been done that can be to effect the transfer of the cause. The rejection of a petition by one judge does not prevent its presentation to another. Here the petition has been presented to each and every one of the judges, and they have all rejected it because the judg- ment was "plainly right." Thus the doors of the Court of Appeals have been forever closed against the suit ; not through neglect, but in the regular order of proceeding under the law governing the practice. 62 CASES SUMMAEILY "We think, therefore, that the judgment of the Corporation Court of the city of Alexandria is tlie judgment of the highest court of the State in which a decision of the suit could be had, and that we may re-examine it upon error. Without stopping to discuss the other question presented by the molion, it is sufficient to say that we think the case involves the consideration of a Federal question. The pro- ceeding iu the District Court was under the authority of the United States, and its validity is drawn in question. Motion denied. Smith v. Adsit, 16 "Wall. 185. Federal Question. Dismissal of a bill hj a State court for want of jurisdiction — the bill seeking to annul a sale because of an alleged violation of an act of Con- gress — is not a decision of a Federal question. Questions of jurisdiction of State courts belong exclusively to the State tribunals. Motion to dismiss granted. . Opinion. — A decree was entered iu the Si ate court where the bill was filed against Adsit for six thousand eight hun- dred and twenty-nine dollars, and the bill dismissed as to the other defendants. He then appealed to the Supreme Court of the State, where the decree against him was re- versed, and the bill was dismissed as to liim, as the record shows, for want of jurisdiction. In view of this, we do not perceive that we have any authority to review the judgment of the State court. Plainly, if there be any Federal question in the case, it is because the plaintiff claimed some title, right, privilege, or immunity under the act of Congress to which reference was made in his bill, and because the decision of the court was against the title, right, privilege, or immunity thus set up or claimed. Such a claim and such a decision must appear DISPOSED OF ON MOTION. 63 in the record. But we think this does not appear. It must be admitted that the question, wliether tlie sale of the land- warrant by Hohnes to Adsit, if made before the warrant issued, as charged in the bill, was not a nullity, may have been presented, but it does not ajipear that such a question was decided, much less that it was decided adversely to the plaintiff in error. Nothing is more certain than that to give this court jurisdiction to review the judgment of a State court, the record must show, either expressly or by neces- sary intendment, not only that a Federal question was raised, but that it was decided adversely to the party who has caused the case to be removed here. The doctrine was plainly stated in Crowell v. Eandell, 10 Pet. 368, and it has been repeated in numerous later de- cisions. Indeed, it is the express requirement of the twenty- fifth section of the Judiciary Act and of the Act of Feb- ruary 14th, 1867. And the rulings of this court have gone further. In Parmelee v. Laurence, 11 Wall. 36, it was said it must appear that the question must have been necessarily involved in the decision, and that the State court could not have given a judgment without deciding it. In Williams ^K Norris, 12 Wheat. 117, it was held not to be enough that the construction of an act of Congress was drawn in ques- tion, and that the decision was against the title of the party, but that it must also appear that the title depended on that act. And in Rector v. Ashley, 6 Wall. 142, it was laid down that if the judgment of the State court can be sus- tained on other grounds than those which are of Federal cognizance, this court will not revise it, though a Federal question may also have been decided therein, and decided erroneously. These decisions go much further than is ne- cessary to sustain our judgment now. As we have seen, the bill was dismissed for want of jurisdiction. The judgment of the courb respecting the extent of its equitable jurisdic- tion is, of course, not reviewable here. The record does 64 CASES STJMMAEILY not iuform us what other questions, if any, were decided. It nowhere appears that the sale from Holmes to Adsit was ruled to be valid, notwiths'tandiiig the act of Congress which declared that sales of bounty-rights, made or executed prior to the issue of land-warrants therefor, shall be null and void. Nor was it necessary to the decree that was entered that such a decision should have been made. After the land had beeu sold by Adsit to bona fide purchasers without notice, which had been decreed in the court below, from which decree there was no appeal — after it had thus been settled that there was no continuing trust in the land — it may well have been determined that the plaintiff's remedy against Adsit was at law, and not in equity, even if the sale from Hoi mes to him was utterly void. But whatever may have been the reasons for the decision, whether the court had jurisdiction of the case or not, is a question exclusively for the judgment of the State court. We need not pursue the subject further. It is enough that it does not appear the claim of the plaintiff, that the sale of Holmes to Adsit was a nullity because of the act of Congress, was necessarily involved in the decision, or that the sale was decided to be valid, or that the same decree would not have been made if the invalidity of the sale had been acknowledged. Wnt dismissed. Taevbr v. Keach, 15 Wall. 67. Federal QnESTioN. A contract being held void by a State court, upon the general principles by which courts determine a transaction to be good or bad on principles of public policy, the decision cannot be reviewed in this court. Motion to dismiss granted. Opinion. — In Delmas v. The Insurance Company, 14 DISPOSED OF ON MOTIOK. 65 "Wall. 661, decided at last term, we held that when "a de- cision holding a contract void is made by the highest court of a State upon the general principles by which courts de- termine that a transaction is good or bad on principles of public policy, the dfecision is one we are not authorized to review." We are entirely satisfied with that judgment and with the grounds assigned for it, and do not think it neces- sary to restate them. It follows that the writ of error to the Supreme Court of Texas must be Dismissed. KEN^^:BECK E. E. v. Poetland E. E., 14 Wall. 23. Fedekai Question. This court will not take jurisdiction where the judgment of a State court involves a Federal question, if there he distinct and suflBcient ground to support the judgment upon non-federal questions. Motion to dismiss granted. Opinion. — It has been repeatedly decided by this court that the opinion is no part of the record, and it is only by agreement of counsel and consent of the court that it can be looked into for such purpose. As the record, without the opinion, does not show that such a question was decided, we have examined the opinion with care, and have felt bound to look to the whole of it, as well as that part of it relied on by the plaintiff in error ; and though the matter which the plaintiff now alleges was one of the principal questions in the case, to wit, that the law under which the foreclosure was had was passed after the mortgage was executed, and that the method of foreclosure prescribed by that statute impaired the obligation of the contract of mortgage, and was, there- fore, void by the Constitution of the United States — does not clearly appear from tlie pleadings, or the decree, or any other proceedings in the case, yet it does appear that the 5 66 CASES SUMMARILY question was discussed in the opinion of the court, and that the court was of opinion that the statute did not impair the obligation of the contract. If this were all of the case we should undoubtedly be bound in this court to inquire whether the Act of 1857 did, as construed by the court, impair the obligation of the con- tract. But a full examination of the opinion of the court shows that its judgment was based upon the ground that the foreclosure was valid, without reference to the statute of 1857, because the method pursued was in strict conform- ity to the mode of foreclosure authorized, when the contract was made, by the laws then in existence. Now, if the State court was right in their view of the law as it stood when the contract was made, it is obvious that the mere fact that a new law was made does not impair the obligation of the contract. And it is also clear that this court cannot inquire whether the Supreme Court of Maine was right in that opinion. Here is, therefore, a clear case of a sufficient ground on which the validity of the decree of the State court could rest, even if it had been in error as to the effect of the Act of 1857 in impairing the obligation of the contract. And when there is such distinct and sufficient ground for the sup- port of the judgment of the State court we cannot take jurisdiction, because we could not reverse the case though the Federal question was decided, erroneously in the court below, against the plaintiff in error. The writ must, therefore, be dismissed for want of juris- diction. DISPOSED OF ON MOTION. 67 Bank, etc., v. Citizens' Bank, 14 Wall. 9. Federal Question. In a suit to recover from a bank money deposited and money collected, the money received by tlie bank being Confederate notes, the decision of the court below being based upon the jurisprudence of the State, though declared and set fortli in the State Cbnstitution, this court has no jurisdic- tion. Motion to dismiss granted. Opinion. — The plaintiff in error brought the suit against the defendant in error in the Fifth District Court of New- Orleans, to recover the sum of ninety-three thousand three hundred and eighty dollars for moneys deposited by the plaintiff with the defendant, and moneys collected by the latter for the former. All the so-called moneys received by the defendant were the notes of the rebel government. The District Court on the 27th of March, 1867, gave judgment for the plaintiff. The case was thereupon taken by appeal to the Supreme Court of the State. That court, on the 14th of December, 1869, reversed the judgment of the court be- low, and dismissed the case. In the opinion delivered, it was said: "Under the Constitution of 1868 the courts of this State cannot entertain an action based upon transactions in Confederate treasury notes. We think the evidence dis- closes that this case is founded upon dealings in unlawful currency, and the court has often refused to lend its aid to transactions reprobated by law." The Constitution of 1868 was not in existence when the case was decided by the Dis- trict Court. The Supreme Court founded its judgment alike upon the constitutional provision and prior adjudications. Those adjudications are numerous and conclusive upon the subject. The Constitution only declared a settled pre-existing rule of jurisprudence in that State. The result in this case would have been necessarily the same if the Constitution had 68 CASES SUMMARILY not contained the provision in question. This brings the case within the authority of Bethel v. Demaret, 10 Wall. 637. Upon such a state of facts this court cannot take juris- diction under the section of the Judiciary Act upon -which the writ of error is founded. Chse dismissed. People v. Central Raileoab, 12 Wall. 455. Federal Question. In a question arising npon an agreement between two States, to which agreement Congress assented, the construction of the act not being drawn in question, and no right or title being set up tinder it and denied by the State court, the writ of error is dismissed. Motion to dismiss granted. Opinion. — We think that the statement of the case shows that the question arose under the agreement and not under any act of Congress. The assent of Congress did not make the act giving it a statute of the United States, in the sense of the twenty-fifth section of the Judiciary Act. The con- struction of the act was in no way drawn in question, nor has any title or right been set up under it and denied by the State court. It had no eifect beyond giving the consent of Congress to the compact between the two States. The writ of error must, therefore, be Dismissed. Northern Eailroad v. The People, 12 Wall. 384. rBDBEAi Question. Where the plaintiff in error, in his pleadings and in his argument in this court, assails a State statute as unconstitutional, but the defendant claims nothing under the statute and it is not involved in the judgment, this court has n6 jurisdiction. Motion to dismiss granted. Opinion. — The principles announced in the preceding case of Knox V. Exchange Bank govern the present one. DISPOSED OF OX MOTION. 69 "We are unable to see that the judgment of the State court, declaring the dissolution of the Northern Railroad Company, rested in any manner on the act of the New York legislature of March, 1857. It is true that that company, the plain- tiff in error in the case, both iu the pleading which it filed and in argument here, assails that statute as taking property without due process of law, and impairing the obligation of contracts ; but, as the defendant in error claims nothing under that statute, and as the validity or invalidity of that statute is in no way involved in the judgment of dissolution rendered by the State court, there is no question here of which this court has jurisdiction. Writ dismissed. Messenger v. Masost, 10 Wall. 507. Federal Question. The fact that a State court held the statutes of a territory providing for partition of lands among tenants in common valid, will not give this court jurisdiction, under the twenty-fifth section of the Judiciary Act. Where the organic law of a territory incorporates into its system of laws, indirectly, the ordinances of another body, and provides that they shall be subject to be altered, modified, or repealed by the goyernor and. legislature of the territory, nothing- in an act of the territorial legis- lature conflicting with such law can be set up to draw in question a law of Congress, so incorporated. Motion to dismiss granted. Opinion. — It is insisted, on the part of the defendant iu error, that an examination of the record will show that there is no Federal question in the case of which this court can take cognizance. In the case of Maxwell v. Newbold et al., 18 Plow. 511, it was held the objection that "the charge of the court, the verdict of the jury, and the judgment below are each against and in conflict with the Constitution and laws of the United States," was not sufSciently specific to raise a question 70 CASES SUMMAEILY •within the provisions of this section. The chief justice, in delivering the opinion of the court, observes, that " the clause in the Constitution and the laws of Congress should have been specified by the plaintiffs in error in the State court, in order that this court might see what was the right claimed by them, and whether it was denied by the decision of the State court." This court had previously held, in Lawler v. Walker and Others, 14 How. 149, that the statement in a certificate of the State court that there was drawn in question the validity of statutes of Ohio, without saying what statutes, was too indefinite, and that the statutes complained of in the case should have been specified. These decisions were reaffirmed in Hoyt v. Shelden, 1 Black, 518. It is quite clear, upon these authorities, that the constitutional objection taken in the present case is too general to be noticed on a writ of error under this twenty-fifth section. As to the effect of the certificate from the court below, see Commercial Bank v. Buckingham, 5 How. 317 ; Lawler v. Walker, 14 id. 149, and Porter v. Foley, 24 id. 413. One difficulty in bringing the case within this twenty-fifth section is, that it makes no provision for the re-examination of a judgment in a State court, which upholds the validity of a statute of a territory in contravention of the Constitu- tion. It applies only to the case where is drawn in question the validity of a statute of, or authority exercised under, any State. The circumstance, therefore, that the court below held the statute of the territory providing for partition of lands among tenants in common valid is of no importance in the case. It has been urged on the argument, however, in view of the certificate of the court, that a right set up under the ordinance of 1787, by the defendants at the trial, had been denied them, and that the construction of a law of Congress had thus been drawn in question. DISPOSED OF OS MOTION. 71 Although the organic law of the territory of Iowa did incorporate into its system of laws, indirectly, many of the provisions of the ordinance of 1787, by extending to its in- habitants the rights and privileges heretofore secured to the territory of Wisconsin by its organic law, among which were those found in the ordinance, yet the same section that conferred these rights and privileges upon the territory of Iowa provided that they should be subject to be altered, modified, or repealed by the governor and legislative assem- bly of the said territory. If, therefore, anything is found in this act of partition in conflict with these provisions, to that extent they must be regarded as altered or modified, which affords a complete answer to the ground relied upon under the ordinance. Motion granted. Carpenter v. Wili.iams, 9 Wall. 785. Federal Question. A decision of a State court recognizing the title confirmed by an act of Congress and not denying its validity, but determining only the identity of the individual to whom the land was confirmed, rests upon common law rules, and not upon Federal law. Motion to dismiss granted. Opinion. — We are of opinion that the record presents no case for the jurisdiction of this court. The case turns solely on the personal identity of the individual to whom the re- corder confirmed, or intended to confirm, the lot in question. It involves the construction of no act of Congress. The de- cision of the court below denies the validity of no act under the authority of the United States. It recognizes to its fullest extent the title confirmed by the act of Congress and the act of confirmation, and only determines to whom that confirmation was made. 72 CASES SUMMARILY It is a mistake to suppose that every suit for real estate, in which the parties claiming under the Federal government are at issue as to which of them is entitled to the benefit of that title, necessarily raises a question of Federal cognizance. If this were so, the title to all the vast domain, once vested in the United States, could be brought from the State courts to this tribunal. In the case before us, the rules which must determine the question at issue are common law rules, and the result can- not be varied by the application of any principle of Federal law or Federal authority. Writ dismissed. The Victory, 6 Wall, 382. FEDEiiAL Question. As the question, whether a case is of admiralty cognizance, and there- fore exclusively within the jurisdiction of the courts of the United States, and whether the statutes of a State authorizing the proceeding are void, relied upon in this court, were not raised and decided in the State court, this court has not jurisdiction. Motion to dismiss granted. Opinion. — The question which we are asked to decide, viz., whether such a case as this is one of admiralty cog- nizance, and is therefore exclusively within the jurisdiction of the courts of the United States, and whether the statute of Missouri, which authorized the proceeding, is for that reason void, is an interesting one, and if it had been raised and decided in the court from which the record comes, we would be bound to decide it here. But we do not think it is a fair inference, from that record, that the question was presented to the court or was decided by it. It has been repeatedly held by this court, that before it can entertain jurisdiction to revise the judgment of a State DISPOSED OF ON MOTIOX. 73 court, the point which we are called upon to review must have been raised, and must have been decided adversely to the plaintiff in error. This is so well established that it would be a useless labor to cite authorities to sustain it. It is true we have said this need not appear by express averment, but if the record shows by necessary intendment that the point was decided, it is sufficient, and the cases of Craig V. The State of Missouri, 4 Peters, 410, and The Bridge Proprietors v. The Hoboken Company, 1 Wall. 116, are cited to sustain the proposition. It is one which does not need support. It is fully conceded. But we are of opinion that it must appear that the point mentioned in the Judiciary Act was actually decided in the State court ; that it received the consideration of the court, and it is not sufficient that now, on fuller examination with the aid of counsel here, we can see that it was a point which ought to have been raised, and which might have been de- cided. In the case of The Bridge Proprietors v. The Ho- boken Company, cited by counsel for plaintiff, the court recites with approbation the following language from the previous case of Crowell v. Randall, 10 Peters, 368 : " It is not sufficient to show that the question might have arisen or been applicable to the case, unless it is further shown by the record that it did arise, and was applied by the State court to the case." It is insisted that inasmuch as the authority of the State court rests solely on the State statute, the validity of that statute was necessarily a point in its judgment, but it would contradict the experience of all who are familiar with courts to assume that every time a court acts under a statute, the validity of the statute or the jurisdiction of the court re- ceives its consideration. This is rarely so, unless the ques- tion is raised by one of the parties and called to the attention of the court. The presumption from this record is entirely the other 74 CASES SUMMARILY way. The defendant in his pleading admits impliedly the jurisdiction of the court, the validity of the statute, and the existence of the lien. He only denies that the full amount claimed is due, and no other question is raised or suggested by the bill of exceptions. Nor does it appear that any other question was raised in the Supreme Court of the State than that which was considered by the inferior court. There was, therefore, no occasion for the court to consider the question raised here by counsel. Writ of error dismissed. Walker v. Villavaso, 6 "Wall. 124. Federal Question. Where tlie suit was an ordinary one for seizure and sale under mortgage according to tlie practice in tlie courts of Louisiana, and counsel rely upon some infirmity in the jurisdiction of the court below — a question not made or determined in the court below — the writ is dismissed. Motion to dismiss granted. Opinion. — The suit in the District Court for the parish of St. Bernard was an ordinary one for seizure and sale under a mortgage according to the practice prevailing in the courts of Louisiana. Indeed, tliis is hardly denied by tlie learned counsel for the plaintiff in error, but he relies on some infirmity in the jurisdiction of the court to hear and determine the case ; and refers in support of it to certain insurgent proceedings in the State of Louisiana against the then existing government, and to acts of Congress on the subject. But this question as to the competency of the court was not made on the trial, nor did the court below consider or determine any such question. In order to give this court jurisdiction under the twenty- fifth section, it must appear on the record itself to be one DISPOSED or ON MOTION. 75 of the cases euumerated in that section, and notliing out of the record certified to the court can be taken into consider- ation ; and when the proceeding is according to the law of Louisiana, the case within the section must appear by the statement of facts and decision as usually made in such cases by the court. No such case or question appears on the present record. Writ dismissed. Eyan v. Thomas, 4 Wall. 603. rEDERAi. Question. Where a patent for land is drawn in question in a State court, and the decision is in favor of its vaUdily, this court has no revisory power. Motion to dismiss granted. Opinion. — ^We have no jurisdiction of the judgments of State courts except under the twenty-fifth section of the Judiciary Act, and, upon examining the record, we do not find that the case presented is within any clause of it. The suit in the State court was for the recovery of a tract of land in St. Louis, Missouri. The proofs of the plaintiff consisted of a patent of the United States to one Johnson, dated January 5th, 1843 ; a certificate of entry by Johnson, issued by the register of the St. Louis Land Olfice on the 19th of August, 1829 ; an assignment of the same date by Johnson and the plaintiff indorsed upon the certificate, and a decree, upon default, of the St. Louis Land Court, in a suit by the plaintiff against Johnson, adjudging and decree- ing the title to be vested in the possessor. The defense rested upon the ground that Johnson was a fictitious person, but the court held the patent not void if issued to a real person and transferred by his indorsement to the plaintiff, though such person in making the entry and obtaining the certificate used a fictitious name. 76 OASES SUMMAEILY The patent offered by the plaintiff seems to have becD the only authority under the United States drawn in ques- tion in the State court, and the decision was in favor of its validity. It is only when, in such a case, the decision is against the authority that this court has revisory juris- diction. It is suggested, in the brief for the plaintiff in error, that a subsequent patent was relied on by him when defendant in the State court, and that the decision having l)een against that patent may be reviewed here. But we find no such patent and no such decision in the record. The writ of error must therefore be Dismissed, Semple v. Hagar, 4 Wall. 431. Federal Question. When, on a motion to dismiss for want of jurisdiction, the question re- lied on is involved with other questions decided in the case, and an exam- ination of a voluminous record is necessary, the court will reserve the question of jurisdiction until final argument on the merits. Where the contest is for land imder patents, and the State court refused to assume jurisdiction, but dismissed the complaint, motion to dismiss is granted. Motion to dismiss granted. Opisrioivr. — In all cases of a motion to dismiss the writ of error for want of jurisdiction, the court must necessarily examine the record to find the questions decided by the State court. But in many cases the question of jurisdiction is so involved with the other questions decided in the case, that this court cannot eliminate it without the examination of a voluminous record, and passing on the whole merits of the case. In such instances the court will reserve the question of jurisdiction till the case is heard on the final argument on the merits. DISPOSED OF OX MOTIOIf. 77 la the case before us, the want of jurisdiction is patent ; it requires no investigation of a long bill of exceptions. It was not decided by the court below on its merits, if it had any. It furnishes do reason for a postponement of our de- cision of the question. If, in such cases, the court would postpone the considera- tion of the question of jurisdiction, we would put it in the power of every litigant in a State court to obtain a stay of execution for three years, or more, by a frivolous pretense that it comes within the provisions of the twenty-fifth sec- tion of the Judiciary Act. In many States, all the land titles originated in patents from the United States; and if every question of boundary, of descent, of construction of wills, of contracts, etc., and which may arise in State courts, may be brought here on the mere suggestion that the party, against whom the State court gave their judgment, derived title-under a patent from the United States, we should enlarge our jurisdiction to thousands of cases, and increase unnecessarily the burdens of this court, with no corre- sponding benefit to the litigant. It is plain that, in such cases, there is not "drawn in question the validity of a treaty, or statute of, or an authority exercised under, the United States." We have here a very brief record, and, on the facts of the case, we cannot shut our eyes to the total want of jurisdic- tion, under the twenty-fifth section, or any other section, of the Judiciary Act. It is plain, that if the court had assumed jurisdiction, and had declared the defendant's patent void, for the reason al- leged in the bill, the defendant would have had a case which might have been reviewed by this court, under the twenty- fifth section, and one on which there miglit have been a ques- tion and difference of opinion. But it is hard to perceive how the twenty-fifth section could apply to a judgment of a State court, wliich did not decide that question, and refused 78 CASES SUMMAKILT to take jurisdiction of the case. The matter is too plain for argument. Motion granted. Railroad Compaitv" v. Eock, 4 Wall. 177. Federal Question. Relief is claimed in a State court on the grounds that, in suhmitting to the vote of the people the question of issuing bonds, the local statute was disregarded, and charging the oificials who issued the bonds and the par- ties who received them, with fraud : the local law not being in conflict with the Federal Constitution, the writ of error is dismissed. Motion to dismiss granted. Opinion. — After a very careful examination of the record of the case, we are unable to discover that either the validity of the Constitution of the State of Iowa, or the clauses of the Constitution of the United States mentioned in the cer- tificate, are involved in that record, or were decided by the court. It is probable that counsel, in the argument of the case in the Supreme Court of Iowa, insisted that these mat- ters were involved, and that the chief justice felt bound to certify, when requested, that they were drawn in question. But if the record does not show that they were necessarily- drawn in question, this court cannot take jurisdiction to re- verse the decision of the highest court of a State, upon the ground that counsel brought them in question in argument. In Lawler v. Walker, 14 How. 149, a case was brought here on a certificate from the State court. It was dismissed for want of jurisdiction. The court said : " The twenty-fifth section of the Judiciary Act requires something more definite than such a certificate to give to this court jurisdiction. The conflict of the State law with the Constitution of the United States, and a decision by a State court in favor of its validity, must appear on the face of the record before it can be re- examined in this court. It must appear in the pleadings of DISPOSED OF ON MOTION. 79 the suit, or from the evidence in the course of the trial, in the instructions asked for, or from exceptions taiten to the ruling of the court. It must be that such a question was necessarily involved in the decision, and that the State court would not have given judgment without deciding it." To the same effect is the case of Mills v. Brown, 16 Peters, 525. The bill of complainant claims relief on two grounds : 1st. That the county judge disregarded the requirements of the statute, in the submission to the vote of the people of the question of issuing the bonds. 2d. That the county judge and the railroad company, to whom they were first issued, were guilty of fraud in the issue of the bonds. The court may have held the bonds void on the latter ground, and may have based its decree on that allegation. If so, there can be no pretense that such a ground involves any question of the Constitution of the United States or of the State of Iowa. In the argument of counsel before us, no attempt is made to show that any provision of the Constitution of the State of Iowa conflicts in any way with the Constitution of the United States. Tlie whole case, in the language of the brief, is put upon the ground that the "Supreme Court of Iowa has made a decision in this case which impairs the obligation of contracts ;" and the argument goes upon the fundamental error that this court can, as an appellate tribunal, reverse the decision of a State court, because that court may hold a con- tract to be void which this court might hold to be valid. If this were the law, every case of a contract held by the State court not to be binding, for any cause whatever, can be brought to this court for review, and we should thus become the court of final resort in all cases of contracts where the decisions of State courts were against the validity of the contracts set up in those courts. This, obviously, was not the purpose of the Judiciary Act. 80 CASES SUMMARILY It must be the Constitution, or some law of the State, which impairs the obligation of the contract, or which is otherwise in conflict with the Constitution of the United States ; and the decision of the State court must sustain the law or Con- stitution of the State in the matter in which the conflict is supposed to exist, or the case for this court does not arise. No stxch thing appears in the case before us, which is the case of a citizen of Iowa suing a corporation of Iowa in the Iowa courts, their rights being determined either upon a construction of local law in no way in conflict with the Fed- eral Constitution, or else upon a simple question of fraud. The writ of error must be Dismissed. BoGGS V. Mining Company, 3 Wall. 304. FEDEEAii Question. An allegation of prior possession of land for the purpose of taking out the minerals, without setting up any authority under the United States to take such possession, nor any treaty or statute of the United States, in virtue of which it was taken, will not give this court jurisdiction. On a plea of a license from a State or the United States, the decision of the State court being not against the validity of such license, but that there was no such license, this court has no jurisdictipn. Motion to dismiss granted. Opinion. — No question is raised by the pleadings, of which this court has jurisdiction upon writs of error to the Supreme Court of California, unless by the allegation of prior possession of this land for the purpose of taking out the minerals. But this allegation does not set up any authority exercised under the United States in taking sucli possession, nor any treaty or statute of the United States, in virtue of which it was taken. Nor does it anywhere appear from the record that the decision of the State court was against the validity of any such authority, treaty, or DISPOSED OF OH MOTION. 81 statute. The case brought before us is, therefore, Avanting in the requirement made essential to our jurisdiction by tiie tvyenty-fifth section of the Judiciary Act. If we were at liberty to look into tiie opinion of the court for the purpose of ascertaiuing what questions were made on the argument, and decided by the court, we should find that, upon a liberal construction of the stipulations of counsel, the defendants were allowed to insist that they were war- ranted in their possession of the lands, for the purpose of extracting the minerals, by a license inferred from the gen- eral policy of the State or of the United States, in relation to mines of gold and silver and the lauds containing them. We doubt whether such a claim, even if made in the pleadings, would be such an allegation as would give juris- diction to this court. However that may be, there was no decision of the court against the validity of such a license. The decision was, that no such license existed; and this was a finding by the court of a question of fact upon the submission of the whole case by the parties, rather than a judgment upon a question of law. It is the same case, in principle, as would be made by an allegation in defense to an action of ejectment, of a patent from the United States with an averment of its loss or de- struction, and a finding by the jury that no such patent existed, and a consequent judgment for the defendant. Such a judgment would deny, not the validity, but the existence of the patent. And this court would have no jurisdiction to review it. The writ of error must, therefore, be Dismissed. 82 CASES SUMMARILY Lewis v. Campau, 3 Wall. 106. Fedeeai, Qutstion. Where tlie only question passed upon by the State court was one affect- ing the admissibility of evidence concerning the value of the land in question, this court has no jurisdiction. Motion to dismiss granted. Opinion. — Neither the validity of the statute nor its construction was in any way drawn in question. Tlie only question the court had to pass upon, and this only incident- ally as affecting the admissibility of evidence, was the value of the land. This is not a question which can be brought into this court under the twenty-fifth section of the Judiciary Act. Writ of error dismissed. Attoeney-General v. Federal Street Meeting- house, 1 Black, 262. Federal QuESTioif. A statement in a writ of error to the effect that a Federal question is involved will not give this court jurisdiction, if in fact such question does not appear in the record. Motion to dismiss granted. Opinion. — The writ of error in this case suggests, as a foundation for the jurisdiction of this court, "that there was drawn in question the validity of a statute of said com- monwealth, to wit, an act of the legislature, passed the 15th day of June, 1805, entitled 'An act declaring and confirm- ing the incorporation of the proprietors of the meeting-house in Federal street,' in the town of Boston, being repugnant to the Constitution of the United States, and the decision of the court was in favor of the validity of said statute," DISPOSED OF ON MOTION. 83 Is this suggestion of the writ supported by the record, either by direct averment, or by any necessary intendment? We think it is not. 1. The decree of the court is, simply, that the bill be dismissed without any reasons alleged for such dismissal. 2. The bill itself raises no such issue ; it refers to the act in question only as conferring the privilege of a corpora- tion on the defendant. It does not aver that the defendants pretend to have title to the property in question by virtue thereof, and cliallenge its validity. The answer alleges that respondents were incorporated by the Act of 1 805, and that, " under it, they are the true and sole owners of the premises, and that said act was passed on the application and petition of parties who, prior thereto, were owners of pews, or tenants in common of the land and the house thereon." It is not alleged that the act, "propria vigore," divested the plaintiff's title, and vested it in the cor- poration, but that the title was vested in the corporation at the request of the owners. The only questions, therefore, which could arise on these pleadings were, whether the per- sons who obtained the act of incorporation were the owners, and whether, after an adverse possession of forty years, a court of equity would interfere to disturb the possession of respondents. The answer takes issue on the charge of the bill, that Little and his associates had contributed land and money to support a public charity; it averred that, on a proper con- struction of the original deed of the premises, the meeting- house was not dedicated to a charitable use, but was erected for their common use, and held by them in proportion to the sums severally contributed; and, consequently, if tlie repre- sentatives of these tenants in common had their rights trans- ferred to the corporation, it was only a transfer of their rights by their consent, and for their own convenience — an enabling act, with which the complainants had no concern. 84 CASES SUMJIAKILY The issue then was, not on the validity of the act, but on the construction of the original deed or agreement of the parties who built the meeting house. The validity of the act of assembly of Massachusetts was not, therefore, drawn in question directly by any averment of the pleadings by the decree, or by any necessary intendment from other averments in the pleadings, or evidence on the record. The opinion of the State court, to be found in 3 Gray, 1, confirms this con- clusion. The case is, therefore, dismissed for want of jurisdiction. PoETEE et al. V. Foley, 24 H. 415. Fedebal Question. The only question decided by the State court, being whether an act of assembly of Kentucky authorizing an executor to sell the real estate of minors, was a Valid exercise of power by the legislature, the question being construed under the Constitution of the State, and not of the United States, this court has no jurisdiction. Motion to dismiss granted. Opinion. — The record of tliis case does not show that any question arose or was decided by the State court, which this court has authority to re-examine by virtue of the twenty- fifth section of the Judiciary Act. Without entering into a tedious analysis of the case, it is suificient to state that the chief or only question in it was, whether an act of assembly of Kentucky authorizing an executor to sell the real estate of minors, was a valid exercise of power by the legislature. The counsel for plaintiff objected to the admission of the deed made in pursuance of such authority, "because said act and supplement were unconstitutional and void." This objection was very properly construed by the court as having reference to the validity of the act of the legislature of DISPOSED OF ON MOTION. 85 Kentucky, not as contrary to any provision of the Constitution of the United States, but as raising the question whether the legislature had a power under the Constitution of that State, by general or special enactment, to authorize the sale of real estate of infants. The court decided that it had such po\yer ; and if it had, it is abundantly evident that there is no article ]ior clause in the Constitution of the United States which could interfere with it. Let the writ of error be dismissed. Robertson, Trustee, etc., v. Coultee et al., Exes., etc., 16 II. 106. FEnEKAt Qttestion. A question presented to a State court, being merely as to the powers of a trustee, appointed under a State statute — his powers depending upon a construction of the statute — this court has no right to inquire whether the State court expounded it correctly or not. Motion to dismiss granted. Opinion. — This case is brought here by writ of error di- rected to the High Court of Errors and Appeals of the State of Mississippi, under the twenty-fifth section of the Act of 1789, upon the ground that the law of that State, under which this decision was made, impairs the obligation of contracts. It is an action of assumpsit. The plaintiff declares on a prom- issory note made by Collins, in his lifetime, to the Commer- cial Bank of Natchez. The declaration avers that, after the execution of the note, and before the commencement of this suit, a judgment of forfeiture was rendered against the bank on the 12th of De- cember, 1845, according to a statute of the State in such case made and provided ; and that the plaintiff was appointed by the court trustee, and as such took possession of this note ; and that by means thereof, and by force of the statute of the State, Collins became liable to pay him the money. The de- 86 CASES SUMMARILY fendants pleaded, that the plaintiff, as trustee, had collected and received of the debts, effects, and property of the bank, , an amount of money sufficient to pay the debts of the bank, and all costs, charges, and expenses incident to the perform- ance of the trust. To this plea, the plaintiff demurred. The Court of Appeals overruled the demurrer, and gave judg- ment for the defendant, upon the ground that the plea was a full and complete bar to the enforcement of the right set out in the declaration. And this judgment is now brought here for revision by writ of error. A motion has been made to dismiss the writ for want of jurisdiction. And in the argu- ment of this motion, a question has been raised, whether, by the common law, the debts due to a bank, at the time of the forfeiture of its charter, would not be extinguished upon the dissolution of the corporation, and the creditors without remedy. And cases have been referred to in the Mississippi Reports, in which it has been decided that, by the common law, previous to any State legislation on the subject, upon the dissolution of a banking corporation, its real estate re- verted to the grantor, and its personal property belonged to the State ; that the debts due to it were extinguished, and the creditors without remedy against the assets or any of them which belonged to the bank at the time of the forfeiture. But this question is not before us on this writ of error, and we express no opinion upon it. The suit is not brought by a creditor of the bank, seeking to recover a debt due to him by the corporation at the time of its dissolution. But it is brought by a trustee appointed by a court of the State, under the authority of a statute of the State ; and the question before the State court, which the pleadings presented, was whether the trustee was authorized, by the law under which he was appointed, to collect more money from the debtors of the corporation than was necessary to pay its debts and the expenses of the trust. Now, in authorizing the appointment of a trustee, where a DISPOSED OF ON MOTION. 87 banking corporation was dissolved, the State had undoubtedlj a right to restrict his power witliin such limits as it thought proper. And the trustee could exercise no power over the assets or credits of the bank beyond that which the law authorized. The Court of Appeals, it appears, decided that the statute did not authorize him to collect more than was sufficient to pay the debts of the corporation and the costs and charges of the trust. And as the demurrer (o the plea admitted that he had collected enough for that purpose, the court held that he could not maintain a suit against the de- fendants to recover more. The question, therefore, presented to the State court was merely as to the powers of a trustee, appointed by virtue of a statute of Mississippi. His powers depended upon the construction of the statute. And we have no right to inquire whether the State court expounded it correctly or not. We are bound to receive their construction as the true one. And this statute, as expounded by the court, does not affect the rights of the creditors of the bank or the stockholders. The plaintiff does not claim a right to the money under a con- tract made by him, but under the powers and rights vested in him by the statute. And if the statute clothes him with the power to collect the debts and deal with the assets of the bank to a certain amount only, and for certain purposes, we do not see how such a limitation of his authority interferes in atiy degree with the obligation of contracts. The writ of error to this court must consequently be dis- missed for want of jurisdiction. 88 CASES SUMMAEILY Udell d al. v. Davidson, 7 H. 769. Federal Questios'. A decision of a State court that land acquired under a Federal statute is chargeable with a trust, cannot be reviewed in this court, the trust being placed upon the ground of contract, and no impeacliment of the grant being involved. Motion to dismiss granted. Opinion. — A motion has been made to dismiss this ease for ■want of jurisdiction. It appears that a man by the name of Gregory had obtained, by residence on the land mentioned in the proceedings, a right of pre-emption, under tlie act of Congress of 18-38. But, before he paid the price fixed by the government in such cases, or made the entry, he sold his right to Miller, one of the plaintiffs in error. Miller after- ward conveyed to a man by the name of Joslyn, in secret trust for himself and subject to his control. Subsequently to this conveyance, Joslyn, by direction of Miller, conveyed to Udell, the other plaintiif in error, in trust to sell to the highest bidder, and apply the proceeds to the payment of the creditors of Miller, pro rcda, if they were not sufficient to pay all demands. Udell accepted the trust, and after having done so, made an agreement with Gregory, by which Gregory was to enter the land at the proper office, at the pre-emption price, and then convey to Udell in trust for the benefit of Miller's creditors, reserving a small portion of the land to Gregory himself. Udell was to furnish the money to enable Gregory to make the entrj'. Under this agreement, Udell executed a release to Gregory of all his right to the land, in order to enable him to make the entry as pre-emptioner, and at the same time took from him a note for one thousand dollars, which was to be given up if Gregory made the conveyance according to his agree- DISPOSED OF ON MOTION. 89 ment. The land was worth a thousand dollars. The gov- ernment price to the pre-emptioner was only two hundred dollars, which sum was advanced by Udell to Gregory. One hundred and fifty dollars of this money belonged to the creditors of Miller, and was so applied at his request, and upon his statement tiiat his application would be for the in- terest of his creditors. The remaining fifty was advanced by Udell to be repaid out of the proceeds of the laud when sold. But it does not appear that the defendant in error, or indeed any of Miller's creditors, sanctioned this transaction at the time, or had knowledge of this application of the trust funds. With the money thus obtained, Gregory made the entry, and then executed a deed to Udell. This deed, upon the face of it, is absolute, and contains no trust for the creditors. After having thus obtained a conveyance, Udell refused to execute the trust, and therefore the defendant in error, as one of the creditors of Miller, in behalf of himself and the other creditors, filed a bill in chancery, setting out more at large the facts above stated, and praying that the land might be sold for their benefit, in pursuance of the trust. The plaintiffs in error demurred to the bill, assigning various causes of demurrer, and, among others, that the transaction with Gregory, by which Udell obtained a con- veyance, was in violation of the Act of 1838. The Chancery Court, upon the hearing, decided that the land in the hands of Udell was chargeable with the trust, and directed it to be sold, and the proceeds to "be applied accordingly. This decree was affirmed in the Supreme Court of- the State, and the present writ of error has been presented upon that judgment. It is unnecessary to notice any of the various causes of demurrer assigned by the plaintiffs in error, except that which relies on the provisions of the Act of 1838. For this being a writ of error to a State court, we have no right 90 CASES SUMMARILY to revise its decision upon any of the otlier causes assigned, and the only question before this court is whether any title, right, privilege, or exemption claimed ]by the plaintiffs in error in the State court under this act of Congress was drawn in question and decided against them. They do not claim that Udell obtained a valid title by the entry made by Gregory, and his subsequent conveyance to Udell. And if their defense had been placed on that ground, it would not have given jurisdiction to this court, because the proceeding to charge it with a trust created by contract would have been no impeachment of the grant made by the United States. They defend themselves upon the ground that the trans- action between them and Gregory, by which the entry' M'as made under a previous contract to convey, was a violation of the Act of 1838. This is undoubtedly true; for the act re- quires the party who claims the right of pre-emption by resi- dence to make oath that he has not contracted to sell or transfer the land to any other person. And he is not permitted to purchase at the low price at which the person entitled to pre- emption is allowed to buy, until this oath is taken and filed Avith the Register of the Land Office. And if he swears falsely, he is liable to an indictment for perjury, and forfeits all title to the land, and deeds made by him convey no title, unless, they are made to a bona fide purchaser without notice. The plain- tiffs in error admit that they participated in the fraud, and consequently Udell, upon their own showing, has acquired no right to the land under the act of Congress on which he re- lies. They do not claim that he obtained a valid title under the law, but insist that the transaction was against its policy, and in violation of its principles. What right or privilege does he then claim under this act of Congress ? It is this : He not only admits, but insists, that, by a fraud upon the government, he has obtained a deed to himself for this land, and that he, being trustee for the creditors of Miller, used DISPOSED OF ON MOTION. 91 tlie money which belouged to liis cestui que trusts to accom- plish his purposes ; and now contends that, by means of this fraud upon the government, he has acquired, under this act of Congress a right to perpetrate a fraud upon his cestui que trusts. This, in plain words, is the amount of his defense ; and this is the right or privilege which he claims under the pro- visions of the Act of 1838, and calls upon this court to recog- nize and maintain. We shall not comment on such a claim. The writ of error must be dismissed for want of jurisdiction. McBride v. The Lessee of Hoey, 11 Pet. 167. FEDEEAii Question. A case involving questions of sale and conveyance under a Federal statute, as well as questions concerning redemption of the land from tax sale under State laws— the latter being the only questions raised and de- cided below — this court is without jurisdiction. Motion to dismiss granted. Opinion. — This case comes before the court on a writ of error, directed to the judges of the Supreme Court of Penn- sylvania for the Western District. The material facts in the case may be stated in a few words. William Hoey, the defendant in error, brought an action of ejectment in the Court of Common Pleas of Mercer County, for the land in question, claiming under a deed from Aaron Hakney, treasurer of the county, upon a sale made for taxes due on the said land to the State of Pennsylvania. This deed is dated October 14th, 1782. The defendant offered in evidence a deed to him from Theophilus T. Ware, collector of the United States direct taxes for the tenth collection dis- trict of the State of Pennsylvania, dated July 3d, 1821 ; and also offered evidence that on the 10th of June, 1824, he had paid to the treasurer of the county the taxes due on the land to the State, and for which it had been sold, as above stated, in order to redeem it. 92 CASES SUMMARILY It appears from the exception, that the defendant admitted tliat the sale made by the United States collector was not Avarranted by the act of Congress, and that the deed was in- valid. But although the deed was inoperative, and did not convey the title to him, yet as he was in possession under this deed, claiming title, and the deed upon the face of it purported to convey the land to him, he insisted that the deed, coupled with the possession under it, was sufScient evidence of title to authorize him to redeem the land within the time limited for redemption by the laws of Pennsylvania, after a sale for State taxes ; and that having paid the taxes within that time, the title of the lessor under this deed was defeated. The Court of Common Pleas gave judgment in favor of the plaintiff, and the case being removed by writ of error to the Supreme Court of Pennsylvania for the Western District, the judgment of the Court of Common Pleas was there affirmed. The statement of the case shows that the question upon which the case turned, and which was decided by the Supreme Court, depended entirely upon the laws of Pennsylvania, and not upon the act of Congress. The question brought before the State court, and there decided against the plaintiff in error, was this : Is a person in possession of land in Penn- sylvania, claiming title to it under a deed which, upon the face of it, appears to be a good one, but which is inoperative and invalid, entitled to redeem the land, after it has been sold for taxes due to the State, so as to defeat the title of the purchaser under the State law ? It is evident that such a question must depend altogether upon the laws of the State, and not upon any law of the United States. The exception states that the plaintiff in error admitted that the sale and conveyance made by the United States collector was not war- ranted by the act of Congress, and that his deed was invalid. No question was made or decided by the court upon the va- lidity or construction of the act of Congress, nor upon the DISPOSED OP ON MOTION. 93 authority exercised under it. The only question raised or decided in the State court was the one above stated ; and upon such question, depending altogether upon the State laws, this court have no power to revise the decision of the State court in this form of proceeding. The writ of error must therefore be dismissed. The Mayor et al. v. De Armas, 9 Pet. 223. FEDEEAli QuESTIOIf. In a claim in a State court, against the city of New Orleans for land by virtue of a United States patent, confirming pre-existing rights, the adverse claim of the ciiy resting upon a question of dedication, and not upon any treaty or act of Congress, this court is without jurisdiction. ]Motion to dismiss granted. Opinion. — The appellees claim title to a lot of ground in the city of New Orleans, as purchasers from the heirs of Catharine Gonzales, the widow of Thomas Beltran, alias Bertrand, who had been in possession of the lot for several years by permission of the Spanish government. This in- complete title was regularly confirmed under the laws of the United States, and a patent was issued for the premises to Catharine Gonzales 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, has enlarged the levee so as to embrace it. The appellees brought their petitory action in the District Court of the State of Louisiana, praying to be confirmed in their rights to the said lot of ground, and tliat the corporation might be enjoined from disturbing them in the exercise thereof. The District Court pronounced its judgment in favor of the petitioners, which, on appeal, was affirmed by the Supreme 94 CASES SUMMAEILY Court of the State. This judgment of affirmance has been removed into this court, under the twenty-fifth section of the Judicial Act. The merits of the controversy cannot be revised in this tribunal. "We can inquire only whether the record shows that the Constitution, or a treaty, or a law of the United States, has been violated by tlie decision of the State court. The appellees move to dismiss the writ of error, because no such violation appears. In support of his motion, the counsel has, we think, in his argument, prescribed too narrow a principle for the action of this court. He says, very truly, that the twenty-fifth section of the Judicial Act is limited by the Constitution, and must be construed so as to be confined within those limits ; but he adds, that a case can arise under the Constitu- tion or treaty only when the right is created by the Consti- tution or by a treaty. We think differently. This construc- tion would defeat the obvious purpose of the Constitution as well as of the act of Congress. The language of both instruments extends the jurisdiction of this court to rights protected by the Constitution, treaties, or laws of the United States, from whatever source those rights may spring. To sustain the jurisdiction of the court in the case now under consideration, it must be shown that the title set up by the city of New Orleans is protected by the treaty ceding Louisiana to the United States (8 Stats, at Large, 200), or by some act of Congress applicable to that title. The counsel in support of the motion contends, and we think correctly, that the treaty does not embrace the case. The first article makes the cession, and the second describes its extent, as comprehending every right vested in France. Tlie third is expressed in these words: "The inhabitants of the ceded territory shall be incorporated in the Union of the United States, and admitted as soon as possible, according to the principles of the Federal Constitution, to the enjoyment DISPOSED OF ON MOTION. 95 of all tlie rights, advantages, and immunities of citizens of the United States; and, in the meantime, they shall be main- tained and protected in the free enjoyment of their liberty, property, and the religion which they profess." No other article of the treaty is supposed to contain any stipulation for the rights of individuals. This article obviously con- templates two objects. One, that Louisiana shall be admitted into the Union as soon as possible upon an equal footing with the other States; and the other, that, till such admis- sion, the inhabitants of the ceded territory shall be protected in the free enjoyment of their liberty, property, and religion. Had any one of these rights been violated while this stipu- lation continued in force, the individual sujjposing himself to be injured might have brought his case into this court under the twenty-fifth section of tlie Judicial Act. But this 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 immn- nities of citizens of the United States." The right to bring questions of title decided in a State court before this tribunal is not classed among these 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. The counsel for the appellant scarcely hopes to maintain the jurisdiction of the court under the treaty, but seems to rely on the act of Congress for admitting the State of Louis- iana into the Union (2 Stats, at Large, 701). The section of that act which is supposed to apply is in these words : "Be it enacted, etc., that the said State shall become, and is hereby declared to be one of the United States of America, and admitted into the Union on an equal footing with the original States in all respects whatever, by the name and title of the State of Louisiana." This simply carries into execution the third article of the 96 CASES SUM5IAEILY treaty of cession ; and cannot, as has already been observed, be construed to give appellate jurisdiction to this court over all questions of title bet^'een the citizens of Louisiana. If, in any case, such jurisdiction could be supposed to be given, it might be where an act of Congress attempted to divest a title which was vested under the pre-existing government. Therefore, the counsel opposing the motion contends that the jurisdiction of the court is involved in the merits of the controversy, and cannot be separated from them. We do not think so. The controversy in the State court was be- tween two titles ; the one originating under the French, the other under the Spanish government. It is true the suc- cessful party had obtained a patent from the United States, acknowledging the validity of his previous incomplete title under the King of Spain. But this patent did not profess to destroy any previous existing title, nor could it so operate, nor was it understood so to operate by the State court. It appears, from the petition filed in the District Court, that the patent was issued in pursuance of the Act of the 11th of May, 1820 (3 Stats, at Large, 573), entitled, "An act supplementary to the several acts for the adjustment of land- claims 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 would not be affected by this confirmation. But, independ- ent of this act, it is a principle applicable to every grant, that it cannot affect pre-existing titles. The United States V. Arredondo, 6 Pet. 738. The judgment of the State court appears on the record to have depended on, and certainly ought to have depended on, the opinion entertained by that court of the legal rights of the parties under the crowns of France and Spain. The case involves no principle on which this court could take jurisdiction which M'ould not apply to all the controversies respecting titles originating before the cession of Louisiana DISPOSED OF ON MOTION. 97 to the United States. It would also comprehend all contro- versies concerning titles in any of the new States, since they are admitted into the Union by laws expressed in similar language. The writ of error is dismissed, this court having no juris- diction in the cause. Miller, use U. S., v. Nicholls, 4 Wheat. 311. Federal Question. Where the question in a State court, as to the lien of a judgment against a State accounting officer, upon his real estate, in conflict with claims of the United States growing out of said real estate, depended upon the State law, the constitutionality of which was not questioned, this court can take no jurisdiction. Motion to dismiss granted. Opinion. — The question decided in the Supreme Court of the State of Pennsylvania respected only the construction of a law of that State. It does not appear, from the record, that either the constitutionality of the law of Pennsylvania or any act of Congress was drawn into question. It would not be required that the record should, in terms, state a misconstruction of an act of Congress, or that an act of Con- gress was drawn into question. It would have been suf- ficient to give this court jurisdiction of the cause, that the record should show that an act of Congress was applicable to the case. That is not shown by this record. The act of Congress which is supposed to have been disregarded, and which, probably, was disregarded by the State court, is that which gives the United States priority in cases of insol- vency. Had the fact of insolvency appeared, upon the record, that would have enabled this court to revise the judgment of the Supreme Court of Pennsylvania. But that fact does not appear. No other question is presented 7 98 CASES SUMMAEILY than the correctness of tlie decision of the State court, ac- cording to the laws of Pennsylvania, and that is a question over which this court can take no jurisdiction. The writ of error must be dismissed. Mower v. Fletcher; Same v. Same and Another, 114 U. S. 127. Final Jotdgment. a judgment of the highest court of a State, that the judgment of a lower court " be and the same is hereby reversed with costs, with directions . . . to enter judgment on the findings for the plaintiff as prayed for in his complaint," is final, for the purposes of a writ of error. Motions to dismiss overruled. Opinion. — These motions are made on the ground that the' judgments for the review of which the writs of error were sued out are not final judgments. The judgment in each case is that the judgment of the State District Court " be and the same is hereby reversed with costs, with direc- tions to the Superior Court of Los Angeles County to enter jadgment upon the iindings for the plaintiff as prayed for in his complaint." That judgment is final for tlie purposes of a writ of error to this court, which terminates the litigation between the parties on the merits of the case, so that, if there should be an affirmance here, the court below would have nothing to do but to execute the judgment it had already rendered. Bostweck V. Brinkerhoff, 106 U. S. 3, and the numerous cases there cited. The judgments in these cases are of that character. The litigation is ended, and the rights of the parties on the merits have been fully determined. Nothing remains to be done but to require the inferior court to per- form the ministerial act of entering the judgments in that court which have been ordered. This is but carrying the DISPOSED OF ON MOTION. 99 judgment of tlie Supreme Court, wliicli has been rendered into execution. Nothing is left to the judicial discretion of the court below. The cases relied on in support of the mo- tions to dismiss were all judgments or decrees of reversal, with leave for further proceedings in the inferior court. Such judgments are not final, because something yet remains to be done to complete the litigation. The motion in each of the cases is overruled. Davies v. Coebin, 112 U. S. 36. Final Jdbqment— Amount — Mandamus. The tax, as a whole, is the amount which determines the jurisdiction of this court, in a proceeding by mandamus to compel a tax collector to col- lect a single tax levied for the joint benefit of all the relators ; and an order awarding such writ is a final judgment within the meaning of the statutes regulating writs of error to this court. Motion to dismiss overruled. Opinion. — The relators moved to dismiss the writ, be- cause (1) an order awarding a peremptory writ of mandamus is not a "final judgment;" and (2) the value of the matter in dispute does not exceed five thousand dollars, inasmuch as no one of the relators will be " entitled to receive of the tax collected so much as five thousand dollars, and no single taxpayer will be required to pay that amount of tax." A motion to afiirra, as allowed by Rule '6, § 5, has not been united, as it very properly might have been, with this motion to dismiss. As to the first objection, it is sufficient to say that the practice of the court has always been the other way. Our reports are full of cases in which jurisdic- tion of this kind has been entertained, and from 1867, when Riggs V. Johnson County, 6 Wall. 166, was decided, until now, our power to review such orders as final judgments has passed "substantially unchallenged. While the writ of 100 CASES SUMMAEILY mandamus, in cases like this, partakes of the nature of an execution to enforce the collection of a judgment, it can only be got by instituting an independent suit for that purpose. There must be, first, a showing by the relator in support of his right to the writ ; and, second, process to bring in the adverse party, whose action is to be coerced, to show cause, if he can, against it. If he appears and presents a defense, the showings of the parties make up the pleadings in the cause, and any issue of law or fact that may be raised must be judicially determined by the court before the writ can go out. Such a determination is, under the circumstances, a judgment in a civil action brought to secure a right, that is to say, process to enforce a judgment. The proceeding may be likened to a creditor's bill in equity which is resorted to in aid of execution. The writ which is wanted cannot be had on application to a ministerial officer. It can only issue after a judgment of the court to that effect in an independent adversary proceeding instituted for that special purpose. Such a judgment is, in our opinion, a final judgment in a civil action, within the meaning of that term as used in the statutes regulating M'rits of error to this court. The second objection is, to our minds, equally untenable. The writ which has been ordered in this case is not like that in Hawley v. Fairbanks, 108 U. S. 543, to compel the levy of taxes to pay separate and distinct judgments in favor of several relators, who, for convenience and to save expense, united in one suit to enforce their respective rights, but to compel a tax collector to collect a single tax which has been levied for the joint benefit of all the relators, and in which they have a common and undivided interest. As in the cases of Shields v. Thomas, 17 How. 3, 5, and The Conne- mara, 103 U. S. 764, all the relators claim under one and the same title, to wit, the levy of a tax which has been made for their benefit. They have a common interest in the tax, and it is perfectly immaterial to the tax collector DISPOSED OF ON MOTION. 101 how it is divided among tliera. He lias no controversy with them on that point ; and if there is any difficulty as to tlie proportions in which they are to share the proceeds of his collections, the dispute will be among themselves and not with him. He cannot act upon separate instructions from the several creditors. His duty is to collect the tax for the benefit of all alike. A payment of the judgment of one creditor would not relieve him from his obligation to collect the whole tax. The object of the proceeding is, not to raise the sums due the relators, but to raise the whole tax of ten mills on the dollar. As the matter stands, each re- lator has the right to have the whole tax collected for the purposes of distribution among all the creditors. It is ap- parent, therefore, that the dispute is between the tax col- lector on one side and all the creditors on the other, as to his duty to collect the tax as a whole for division among them, after the collection is made, according to their several shares. The value of the matter in dispute is measured by the whole amount of the tax, and not by the separate parts into which it is to be divided when collected. It is conceded that the amount of the tax is more than five thousand dollars. The motion to dismiss is overruled. Haeeington v. Holler, 111 U. S. 796. Final Judgment — ^Practice. An order of dismissal for failure to file the transcript and docket the cause within the time required by law is not a final judgment. Motion to dismiss granted. Opinion. — This motion is granted on the authority of Insurance Company v. Comstock, 16 "Wall. 258, and Eail- road Company v. Wiswall, 23 Wall. 507. An order of the Supreme Court of Wasliingtou Territory, dismissing a writ 102 CASES SUMMARILY of error to a district court, because of the failure of tlie plaintiff in error to file the transcript and have the cause docketed within the time required by law, is not a final judg- ment or a final decision within the meaning of those terms as used in §§ 702 and 1911 of the Revised Statutes regu- lating writs of error and appeals to this court from the Supreme Court of the territory. Section 702 provides for tiie review of final judgments and decrees by writ of error or appeal, and § 1911 regulates the mode and manner of taking the writ or procuring the allowance of the appeal. The use of the term " final decisions'' in § 1911 does not enlarge the scope of the jurisdiction of this court. It is only a substi- tute for the words " final judgments and decrees" in § 702, and means the same thing. The dismissal of the writ was a refusal to hear and decide the cause. The remedy in such a case, if any, is by man- damus to compel the court to entertain the case and proceed to its determination, not by writ of error to review what has been done. IKsmhsed. BosTWiCK V. Beinkeehoff, 106 U. S. 3. Final Judgment. On appeal, a judgment for plaintiff on demurrer, with leave to defend- ants to withdraw the demurrer and answer, is not a final judgment. Motion to dismiss granted. Opinion. — This was a suit begun in the Supreme Court of the State of New York by a stockliolder in a national bank against the directers, to recover damages for their neg- ligence in the performance of their official duties. A de- murrer was filed to the complaint, which raised, among others, the question whether such an action could be brought in a State court. The Supreme Court at special term sus- DISPOSED OF ON MOTION. 103 tained tlie demurrer and dismissed the complaint. This judgment was affirmed at general term. An appeal was then taken to the Court of Appeals, where it was ordered and adjudged " that the judgment of the general term . . . be . . . reversed and judgment rendered for plaintiff on de- murrer with costs, with leave to the defendants to withdraw the demurrer within thirty days, on payment of costs . . . and to answer the complaint." It was also further ordered that the record and the proceedings in the Court of Appeals be remitted to the Supreme Court, "thereto be proceeded upon according to law." From this judgment of the Court of Appeals a writ of error was taken to this court, which the defendant in error now moves to dismiss because the judg- ment to be reviewed is not a final judgment. The rule is well settled and of long standing that a judg- ment or decree, to be final within the meaning of that term as used in the acts of Congress giving this court jurisdiction on appeals and writs of error, must terminate the litigation between the parties on the merits of the case, so that if there should be an affirmance here, the court below would have nothing to do but to execute the judgment or decree it had already rendered. ... It has not always been easy to decide when decrees in equity are final within this rule, and there may be some apparent conflict in the cases on that subject, but in the common law courts the question has never been a difficult one. If the judgment is not one which disposes of the whole case on its merits it is not final. Consequently it has been uniformly held that a judgment of reversal with leave for further proceedings in the court below cannot be brought here on writ of error. . . . This clearly is a judg- ment of that kind. The highest court of the State has de- cided that the suit may be maintained in the courts of the State. To that extent the litigation between the parties has been terminated, so far as the State courts are concerned ; but it still remains to decide whether the directors have in 104 CASES SUMMAEILY fact been guilty of the negligence complained of, and, if so, what damages the stockholders have sustained in consequence of their neglect. The Court of Appeals has given the de- fendants leave to answer the complaint, and the trial court has been directed to proceed with the suit accordingly. Such being the case, it can in no sense be said that the judgment we are now called on to review terminates the litigation in the suit. Writ dismissed. Grant v. Phcenix Insurance Company, 106 U. S. 429. FiNAi. Decree. To be final, for purposes of jurisdiction in this court, the decree must terminate the litigation on the merits of the case. A decree which de- clares that the plaintiff is the owner of the debt secured by the deed of trust in question, and refers the case to the auditor to ascertain the amount due, but makes no order of sale, is not a final decree. Motion to dismiss granted. Opinion. — The rule is well settled that a decree, to be final within the meaning of that term as used in the acts of Congress giving this court jurisdiction on appeal, must terminate the litigation of the parties on the merits of the case, so that if there should be an affirmance here, the court below would have nothing to do but to execute the decree it had already rendered. This subject was considered at the present term in Bostwick v. Brinkerhoff, ante, p. 3, where a large number of cases are cited. It has also been many times decided tliat a decree of sale in a foreclosure suit, which settles all the rights of the parties and leaves nothing to be done but to make the sale and pay out the proceeds, is a final decree for the purposes of an appeal. . . . But in Railroad Company v. Swasey, 23 Wall. 405, it was held that to "jus- tify such a sale, without consent, the amount due upon the debt must be determined. . . . Until this is done the rights DISPOSED OF ON MOTION. 105 of the parties are not all settled. Final process for the col- lection of moaey cannot issue until the amount to be paid or collected by the process, if not paid, has been adjudged." In this the court but followed the principle acted on in Barnard «. Gibson, 7 How. 650; Crawford v. Points, 13 id. 11; Humiston v. Stainthorp, 2 Wall. 106 ; and many other cases. The present decree is not final according to this rule. It does not order a sale of the property. It overrules the de- fense of the appellant as set forth in his cross-bill, and declares that the appellee is the holder and owner of the debt secured by the deeds of trust, but refers the case to an auditor to ascertain the amount due upon the debt, the amount due certain judgment and lien creditors, the exist- ence and priorities of liens, and the claim for taxes. It is true that the court finds the amount due the appellee largely exceeds the value of the property, but this is only as a foun- dation for the order appointing the receiver. If in point of fact it is not true, the finding will not conclude the parties in the final closing up of the suit. The order for the delivery of the property is only in aid of the foreclosure proceedings, and to subject the income, pending the suit, to the payment of any sum that may ia the end be found to be due. If anything remains, either of the income or of the proceeds of ' the sale after the mortgage or trust debts are satisfied, it will go to the appellant, notwithstanding what has been decreed. There is no order, as in Forgay ?;. Conrad, 6 How. 201, Thomson v. Dean, 7 Wall. 342, and other cases of a like character, adjudging the property to belong absolutely to the appellee, and ordering immediate delivery of possession. In Forgay v. Conrad, supra, which is a leading case on this question, it was expressly said by Mr. Chief Justice Taney (p. 204) that the rule did not extend to cases where property was directed to be delivered to a receiver. The reason is that the possession of the receiver is that of the court, and 106 CASES SUMMAEILY he holds, pendiug the suit, for the benefit of whomsoever it shall in the end be found to concern. Neither the title nor the rights of the parties are changed by his possession. He acts as the representative of the court in keeping the prop- erty so that it may be subjected to any decree that shall finally be rendered against it. Appeal dismissed. Mr. Justice Miller dissented. Gkeen v. Fisk, 103 U. S. 518. Final Decree. A decree, in partition proceedings, ascertaining tlie extent of the peti- tioner's interest, and referring the case to a master " to proceed to partition according to law under the direction of the court," is not a final decree. Motion to dismiss granted. Opiniox. — This was a suit begun by Mrs. Fisk, the ap- pellee, in a State court of Louisiaua; to obtain a partition of real property. She alleged that she was the owner of one- half the property ; that she was not willing to continue her joint ownership, and that a partition by sale was necessary, as a division could not be made in kind. The prayer of her j)etition was in accordance with these allegations. Green, the defendant below, being a citizen of California, removed the case to the Circuit Court of the United States for the District of Louisiana. In that court, on the 31st of March, 1879, Mrs. Fisk was decreed to be the owner of one- half the property, and the case was referred to " J. W. Gur- ley, Esq., master, to proceed to a partition according to law, under the direction of the court." From that decree an appeal was taken by the defendant, which Mrs. Fisk now moves to dismiss, because the decree appealed from is not the final decree in the cause. We think the motion must be granted. In the Circuit DISPOSED OF ON MOTION. 107 Court the suit was one in equity for partition. Although no formal order was entered assigning it to tiie equity side of the court, that was clearly its proper place, and it was so treated by the parties and the court. In partition causes, courts of equity iirst ascertain the rights of the several persons interested, and then make a division of the property. After the division has been made, and confirmed by the court, the partition, if in kind, is com- pleted by mutual conveyances of the allotments to tlie several parties. . . . A decree cannot be said to be final until the court has com- pleted its adjudication of the cause. Here the several in- terests of the parties in the land have been ascertained and determined, but this is merely preparatory to the final relief which is sought, that is to say, a setting ofl^ to the complain- ant in severalty her share of the property in money or in kind. This can only be done by a fui-ther decree of the court. Ordinarily, in chancery, commissioners are appointed to make the necessary examination and inquiries, and report a partition. Upon the coming in of the report the court acts again. If the commissioners make a division the court must decide whether it shall be confirmed before the partition, which is tlie primary object of the suit, is complete. If they report that a division cannot be made and recommend a sale, the court must pass on this view of the case before the adju- dication between the parties can be said to be ended. In this case a partition by sale was asked for, because the property was not susceptible of division in kind. That the court has not ordered, and the reference to the master was undoubtedly to ascertain, among other things, whether such a proceeding was in fact necessary in order to divide the property. The master was in everything to proceed under the direction of the court. He had no fixed duty to perform. He was the mere assistant of the court, not in executing its process, but in completing its adjudication of the partition 108 CASKS STJMMABII.Y which was asked. There are still questions, in which the parties have each a direct interest, and they must be deter- mined judicially before the relief has been granted which the suit calls for. In foreclosure suits it has been held that a decree which settles all the rights of the parties and leaves nothing to be done but to make a sale and pay over the proceeds is final for the purposes of an appeal. The reason is that in such a case the sale is the execution of the decree of the court, and simply enforces the rights of the parties as finally adjudicated. Here, however, such is not the case, because still the court must act judicially in making the partition it has ordered. What remains to be done is not ministerial, but judicial. The law has prescribed no fixed rules by which the officers of the court are to be governed in the performance of the duty assigned to them. The court is still to exercise its judicial discretion in directing the movements and approving the acts of its assistants, until it has finally settled and deter- mined on the details of the partition, if made in kind, or directed a sale by the ministerial officers and prescribed the rules for a division of the proceeds. Appeal dismissed. Zellee el. al. v. Switzee, 91 U. S. 487. Final Judgment. A decision of a State court that tlie defense set forth in peremptory ex- ceptions was not good, and remanding the cause to be proceeded with ac- cording to law, is not final. Motion to dismiss granted. Opinion. — "We think this motion must be granted. The judgment is one of reversal only, and the case is remanded to be proceeded with according to law. The Supreme Court decided that the defense set forth in the peremptory excep- DISPOSED OF OX MOTION. 109 tion was not good ; and that is all that court decided. The case was, therefore, sent back for trial upon the defenses set up in the answer, or any other that might be properly pre- sented. If the decision below upon the exception had been correct, such a trial would have been unnecessary. The Supreme Court having decided that it was not correct, the inferior court must now proceed further. This brings the case within our ruling at the present term in Ex parte French, supra, p. 423. The writ is dismissed. BUTTEKFIELD V. USHEE, 91 U. S. 246. FrNAii Decree. A decree setting aside one sale and ordering another is not fina^. Motion to dismiss granted. OprsriON'. — The decree here appealed from disposed finally of a motion made in the case, but not of the case itself. It simply set aside one sale that had been made, and ordered another. A decree confirming the sale would have been final. But this decree is analogous to a judgment of reversal with directions for a new trial or a new hearing, which, as has been often held, is not final. Where the practice allows appeals from interlocutory decrees, an appeal might lie from such a decree as this. Such was the practice in New York. . . . Consequently it was said in Delaplaine v. Lawrence, 10 Paige, 604 : " In sales by masters, under decrees and orders of this court, the purchasers who have bid off the property and paid their deposits in good faith are considered as having inchoate rights, which entitle them to a hearing upon the question whether the sales shall be set aside ; and, if the court errs by setting aside the sale improperly, they have the right to carry the question by appeal to a higher 110 CASES SUMMAKILY tribunal." But our jurisdiction upon appeal is statutory only. If some act of Congress does not authorize a case to be brought here, we cannot take jurisdiction. Appeals can- not be taken to this court from the Supreme Court of the District, except after a final decree in the case by that court. The decree in this case not being final, we have no juris- diction. We do not wish to be understood as holding that a pur- chaser at a sale under a decree in equity may not, at a proper stage of the case, appeal from a decree affecting his interests. All we do decide is, that there cannot be such an appeal to this court until the proceedings for the sale under the origi- nal decree are ended. In Blossom v. R. R. Co., 1 Wall. 655, and 3 id. 196, we entertained such an appeal ; but the decree there appealed from was final. Tliere was no order to resell, for the reason that, between the time of Blossom's bid and the time of the order of the court appealed from, the decree for the satis- faction of which the sale had been ordered was paid. The decree against Blossom, therefore, was the last which the court could make in the case. It ended the proceedings, and dismissed the parties from further attendance upon the court for any purpose connected with that action. This appeal is, therefore, dismissed for want of jurisdiction. McCoMB, Executor, v. Commissioners of Knox County, Ohio, 91 U. S. 1. Final Judgment — Highest Court or a State. A final judgment of a Court of Common Pleas rendered upon a mandate of the Supreme Court of the State to proceed according to law, cannot he re-examined here. The judgment of the Supreme Court was not final ; and that of the Common Pleas was not the judgment of the highest court of the State, etc. DISPOSED OF ON MOTIOX. Ill The writ of error was to the Court of Common Pleas. Motion to dismiss granted. Opinion. — The Commissioners of Knox County having sued McComb in the Court of Common Pleas of Richland County, he filed an answer to their petition, to which they demurred, alleging for cause that it did not contain facts sufficient to bar the action. This demurrer was overruled, and replies were thereupon filed. McComb then demurred to the replies, because the facts stated did not constitute a defense to the matter set up in the answer. Tliis demurrer was sustained, and judgment given in favor of McComb. The case was then taken by writ of error to the Supreme Court of the State, where the judgment of the Common Pleas was reversed for error in sustaining tlie demurrer to the replies, and overruling that to the answer; but, upon suggestion by McComb that he might a&k leave to amend his answer, the cause was remanded "for further proceedings according to law." Upon the filing of the mandate in the Common Pleas, that court, in accordance with the decision of the Supreme Court, overruled the demurrer to the replies, and sustained that to the answer. McComb did not ask leave to amend his answer, but elected to roly upon his de- fense, as already stated. Thereupon the court gave judg- ment against him upon the case made by the petition. This writ of error is prosecuted to reverse that judgment. The Court of Common Pleas is not the highest court of the State ; but the judgment we are called upon to re-exam- ine is the judgment of that court alone. The judgment of the Supreme Court is one of reversal only. As such, it was not a final judgment. . . . The Common Pleas was not di- rected to enter a judgment rendered by the Supreme Court and carry it into execution, but to proceed with the case according to law. The Supreme Court, so far from putting an end to the litigation, purposely left it open. The law 112 CASES SUMMARILY of the case upon the pleadings as they stood was settled ; but ample power was left in the Common Pleas to permit the parties to make a new case by amendment. Ju fact, the cause was sent back for further proceedings, because of the suggestion by MeComb that he might want to present a new defense by amending his answer. The final judgment is, therefore, the judgment of the Court of Common Pleas, and not of the Supreme Court. It may have been the necessary result of the decision by the Supreme Court of the questions presented for its determina- tion ; but it is none the less, on that account, the act of the Common Pleas. As such, it was, when rendered, open to review by the Supreme Court, and for that reason is not the final judgment " of the highest court in the State in which a decision in the suit could be had." Revised Statutes, § 709. The writ is dismissed. Raileoad Company v. "Wiswall, 23 "Wall. 507. Final Judgment — ^Eemoval Causes. An order remanding from a circuit to a State conrt, and refusing to hear and decide a cause, is not a final judgment. Motion to dismiss granted. Opinion. — The writ of error is dismissed upon the au- thority of Insurance Company v. Comstock, 16 Wall. 258. The order of the Circuit Court remanding the cause to the State court is not a "final judgment" in the action, but a refusal to hear and decide. The remedy in such a case is by mandamus to compel action, and not by writ of error to re- view what has been done. DISPOSED OF ON MOTION. 113 Thomas & Co. v. "VVooldrtdge, 23 "Wall. 283. FiNAi, Decree — Motion nr review. Gelston v, Hoyt, 3 Wheat. 246 ; Atherton v. Fowler, 91 U. S. 143, 146. It is insisted that the writ of error was not brought within time. Section 1008 of the Revised Statutes declares that " No judgment, decree, or order of a circuit or district court, in any civil action at law or in equity, shall be reviewed in the Supreme Court, on writ of error or appeal, unless the writ of error is brought, or the appeal is taken within two years after the entry of such judgment, decree, or order." This rule is applicable to writs of error to the State courts in like manner as to circuit courts. Scarborough v. Par- goud, 108 U. S. 567. In the case of Brooks v. Norris, 11 How. 204, construing the same language in the Judiciary Act of 1789, it is said "that the writ of error is not brought, in the legal meaning of the term until it is filed in the court which rendered the judgment. It is the filing of the writ that removes the record from the inferior to the appellate court, and the period of limitation prescribed by the act of Congress must be calculated accordingly." This language is repeated in Mussina v. Cavazos, 6 Wall. 355, and in Scar- borough V. Pargoud, supra. Though the writ of error in this case seems to have been issued by the clerk of the Circuit Court of the United States on the ICth day of May, 1884, and is marked by him for some reason as filed on that day, it is marked by the clerk of the court to which it is directed, namely, the Circuit Court of La Crosse County, as filed on the 29th day of that month. It is not disputed that this is the day it was filed in his office. This must be held to be the day on which the writ of error was brought. The judgment which we are asked to review by this writ was entered in the Circuit 188 CASES SUMMAEILY Court of La Crosse County, May 24th, 1882. It is signed by the judge on that day, and is expressly dated as of that day, and it is marked filed on that day over the signature of the clerk of that court. This is the judgment — ^the entry of the judgment — and on that day the plaintiff in error had a right to his writ, and on that day the two years began to run within which his right existed. It seems that the courts of Wisconsin, either by statute oi by customary law, keep a book called a judgment docket. •In this book are entered in columns the names of plaintiffs who recovered judgments, and the defendants against whom they are recovered. In another column is entered the amount of the principal judgment and the costs and the date of the judgment itself. This record is kept for the convenience of parties who seek information as to liens on real estate or for other purposes. This docket, however, is made up necessarily after the main judgment is settled and entered in the order book or record of the court's proceedings, and it may be many days before this abstract of the judgment is made in the judgment docket, according to the convenience of the clerk. It is the record of the judicial decision or order of thti court found in the record book of the court's proceedings which constitutes the evidence of the judgment, and from the date of its entry in that book the Statute of Limitation begins to run. It follows that the writ of error in this case was brought five days after the two years allowed by law had expired , and it must be Dismissed. DISPOSED OF ON MOTION. 189 Leggett v. Allen, Assignee, 110 U. S. 741. Bankrtjptct. A proceeding to prove a debt in a suit in bankruptcy is part of the suit, and not an independent proceeding ; and this court has no jurisdiction to review a judgment of the Circuit Court on appeal from an order of the District Court rejecting a claim. Motion to dismiss granted. Opinion. — This motion is granted on the authority of Wiswall V. Campbell, 93 U. S. 347, in which it was decided that this court has no jurisdiction to review a judgment of the Circuit Court, rendered in a proceeding upon an appeal from an order of the District Court rejecting the claim of a supposed creditor against the estate of the bankrupt, and for the reason that a proceeding to prove a debt is part of the suit in bankruptcy, and not an independent suit at law or in equity. Such being the nature of the proceeding, it is a matter of no consequence whether the appeal from the Dis- trict Court to the Circuit Court was taken by the creditor or the assignee, for it has always been held that this court has no control over judgments or orders made by the Circuit Courts in mere bankruptcy proceedings. It is unnecessary to repeat here what was said in Wiswall v. Campbell. This case and that are in all material respects alike. United States v. Geant, 110 U. S. 225. COKEECTION or ErEOR IN A DECREE. Where a judgment was rendered for a sum certain, and subsequently the court found from the same evidence that the amount should have been larger, and amended its judgment accordingly, an appeal from this judg- ment is dismissed. Motion to dismiss granted. 190 CASES SUKMAEILY Opinios'. — Grant & Co. sued the United States in the Court of Claims on the 2d of December, 1868, and on the 6th of December, 1869, recovered a judgment for thirty-four thousand two hundred and twenty-five dollars and fourteen cents. On the 5th of January, 1883, the following act was passed by Congress : " Be it enacted . . . That the Court of Claims be, and it is hereby, directed to reopen and readjudicate the case of Albert Grant and Darius Jackson . . . upon the evidence heretofore submitted to the sa"id court in said cause, . . . and if said court in such readjudication shall find from such evidence that the court gave judgment for a different sum than the evidence sustains or the court intended, it shall cor- rect such error and adjudge to the said Albert Grant such additional sum in said cause as the evidence shall justify, not to exceed fourteen thousand and sixteen dollars and twenty-nine cents ; and the amount by readjudication in favor of the said Albert Grant shall be a part of the original judgment in the cause recorded in the fifth Court of Claims report, page eighty." Under this act Grant, on the 13th of January, 1883, applied to the court to re-examine the case and to render a judgment nunc pro tunc for the additional sum of fourteen thousand and sixteen dollars and twenty-nine cents. Upon this application the court, on due consideration, found that the original judgment was given for a different sum than was intended, and that, " in order to correct such error and adjudge to said Albert Grant such additional sum in this cause as the evidence justifies, he should receive a further sum of fourteen thousand and sixteen dollars and twenty - nine cents," and on the 11th of June, 1883, a judgment for that amount was rendered. From this judgment the United States took an appeal, which Grant now moves to dismiss on the ground that no appeal lies from an order or judgment entered in such a proceeding. DISPOSED OP ON MOTION. 191 In our opinion this motion should be granted. The act of Congress, in its l^al eifect, is nothing more than a direc- tion to the Court of Claims to entertain an application to correct an error in the entry of one of its former judgments. The readjudication ordered is to be upon the old evidence, and if an error is found, the correction is to be made, not by ren- dering a new judgment, but by amending the old one. The language is " and the amount by readjudication in favor of the said Albert Grant shall be a part of the original judg- ment." As, when the act was passed, an appeal from the original judgment was barred by lapse of time, we are satis- fied it was the intention of Congress to make the action of the Court of Claims upon this readjudication final. Certainly the old judgment is not opened to an appeal by the readjudi- cation, and there is nothing to indicate that the new part of the judgment can be separated from the old for the purposes of review here. By the correction the new judgment was merged in the old. The motion to dismiss is granted. Hecht v. Boughton, 105 U. S. 235. Appeal — Peaoticb — Writ of Error. This court can review cases from Wyoming Territory not tried by jury only when brought up by appeal. A writ of error will be dismissed. Motion to dismiss granted. Opinion. — This is a writ of error to the Supreme Court of the Territory of "Wyoming, to bring up for review the judgment in a suit where there was not a trial by jury. A motion is now made to dismiss, because the case should have been brought here by appeal, and not by writ of error. The second section of the Act of April 7th, 1874, c. 80, 18 Stat., pt. 3, p. 27, is as follows : " That the appellate jurisdiction of the Supreme Court of 192 CASES SUMMAEHiY the United States over the judgments and decrees of said Territorial courts in cases of trial by jury shall be exercised by writ of error, and in all other cases by appeal, according to such rules and regulations as to form and modes of pro- ceeding as the said Supreme Court have prescribed or may hereafter prescribe : "Provided, that on appeal, instead of the evidence at large, a statement of the facts of the case in the nature of a special verdict, and also the rulings of the court on the ad- mission or rejection of evidence when excepted to, shall be made and certified by the court below and transmitted to the Supreme Court, together with the transcript of the proceed- ings and judgment or decree ; but no appellate proceedings in said Supreme Court heretofore taken upon any such judg- menb or decree shall be invalidated by reason of being insti- tuted by writ of error or appeal : " And provided further, that the appellate court may make any order in any case heretofore appealed which may be necessary to save the rights of parties; and that this act shall not apply to cases now pending in the Supreme Court of the United States where the recotd has already been filed." This statute seems to us conclusive of the present motion. In allowing legal and equitable remedies to be sought in the same action before the Territorial courts. Congress saw fit to establish an inflexible rule by which it could be determined whether a case should be brought here from those courts for review by writ of error or appeal, and provided that cases tried by a jury should come on writ of error, and all others by appeal. This makes the form of proceeding depend on the single fact of whether there has been, or not, a trial by jury. . . . We are not to consider the testimony in any case. ' Upon a writ of error we are confined to the bill of excep- tions, or questions of law otherwise presented by the record ; and upon an appeal to the statement of facts and rulings DISPOSED OP ON MOTION-. 193 certified by the court below. The facts set forth in the state- ment which must come up with the appeal are conclusive on us. Under these circumstances the form of proceeding to get a review is not of so much importance as certainty about what is to be done. We cannot agree with counsel for the plaintiff in error that the act of Congress was intended to apply only to those Terri- tories where the distinction between suits at law and suits in equity had actually been abolished. From the preamble it may fairly be inferred that the object of the legislation was to prevent embarrassments growing out of the mingling of juris- dictions, but the statute as it stands clearly applies to all Territorial courts. Motion granted. CuMMiNGS V. Jones, 104 U. S. 419. Limitations. Section 1003 Kevised Statutes applies alike to writs of error to State and Federal courts. A writ not brought within two years after the judgment complained of is dismissed. Motion to dismiss granted. Opinion. — This is a writ of error to the Supreme Court of Louisiana, brought more than two but less than five years after the judgment to be reviewed was rendered, and one of the questions raised on this motion is whether the limitation of two years prescribed by § 1008 of the Revised Statutes, for bringing writs of error to the Circuit and Dis- trict Courts, applies to writs of error to State courts. We have no hesitation in saying it does. Section 1003 provides that "writs of error from the Supreme Court to a State court, in cases authorized by law, shall be issued in the same manner and under the same regulations, and shall have the same effect as if the judgment or decree complained of had been rendered or passed in a court of the United States." 13 194 CASES SUMMAEILY This is almost the exact language of a similar provision in the twenty-fifth section of the Judiciary Act of 1789, and ■we are not aware it was ever supposed that writs issued to the State court under that section were not subject to the limitation prescribed for writs to the Circuit Courts by the twenty-second section. In Brooks v. Norris, 11 How. 204, this seems to have been assumed, and a writ to a State court was dismissed " on the ground that it is barred by the limitation of time prescribed by the act of Congress." There was at that time no other limitation than the one contained in the twenty-second section. Inasmuch as the writ was not brought within two years after the judgment complained of was rendered, the motion is Granted. Humphrey v. Bakee, 103 U. S. 736 Contempt op Couet. An order of commitment for contempt of court in refusing to obey a de- cree entered helow in accordance with the directions of this court will not be reviewed here on appeal. Motion to dismiss granted. Opinion. — At the last term, on a former appeal in this case, Baker v. Humphrey, 101 U. S. 494, we decided "that the complainant. Baker, deposit in the clerk's office for the use of the defendant, George P. Humphrey, the sum of twenty-five dollars, and that Humphrey thereupon convey to Baker the premises described in the bill, and that the deed contain a covenant against the grantor's own acts, and the demands of all other persons claiming under him." A man- date was thereupon issued to the Circuit Court to enter a decree in accordance with this decision, and carry it into effect. Pursuant to this mandate a decree was entered, of which no complaint is made. The money was deposited with DISPOSED OF ON MOTION, 195 the clerk at or before the time of the decree, and immediately thereafter a deed in all respects appropriate in form was prepared and presented to Humphrey for execution. This he neglected to do, and he was ordered to show cause why he should not be attached for contempt on that account. In obedience to this order he appeared and for cause showed : " 1st. That before said decree was entered the Circuit Court gave him leave to file, and he did file, a bill of supplement and review to obtain reimbursement for taxes and improve- ments paid and made upon the premises in question. " 2d. That said bill was duly filed before said decree was entered, and the complainant, who is the defendant therein, has appeared and demurred thereto, and the same is now pending and undetermined. " 3d. That this defendant has beeu advised and verily be- lieves that no process would issue against him to compel him to sign the deed in question, until the questions presented by his said bill were disposed of." Upon the hearing Humphrey was adjudged to be in con- tempt, and it was decreed that he stand committed to the Detroit House of Correction until he executed the deed, unless sooner discharged by the court. From this order of commitment the present appeal has been taken, which the appellee now moves to dismiss. In Stewart v. Salamon, 97 U. S. 361, we decided that we would not entertain an appeal from a decree entered in exact accordance with our mandate on a former appeal, and that when such an appeal was taken we would on application ex- amine the decree, and if it conformed to the mandate, dismiss the case with costs. If it did not, we would remand the case with appropriate directions for the correction of the errors. The decree entered below, in the present case, fol- lowed the mandate in every particular, and was in legal effect ours. It commanded Humphrey to convey, and the proceed- ings in which the order now appealed from was entered were 196 CASES SUMMAEILY for the purpose of compelling him to do what we said must be done. Instead of carrying our decree into execution our- selves, we sent it below for that purpose. No discretion was given the Circuit Court as to requiring a conveyance. That was ordered here. The order appealed from was in further- ance of our express directions, and may with propriety be considered part of our decree. It was the appropriate way of getting the conveyance which we said must be made. If in the end it shall appear that Humphrey is entitled to the relief he asks, in what he denominates his " bill of supple- ment and review," the appropriate decree to that end will be made in that proceeding. The decree we directed is the final decree in the original suit, and the court below had nothing to do but to carry it into execution. Under the rule estab- lished in Stewart v. Salamon, therefore, the appeal is Dismissed vnth costs. Hentig v. Page, 102 U. S. 219. Inteelocutoey Oedee. An order refusing to restrain a marshal from executing a writ of assist- ance issued to put a receiver in possession will not be reviewed in this court on appeal. Motion to dismiss granted. Opinion.— On the 26th day of October, 1877, Mary A. Smith, administratrix de bonis nan of Julia C. Wright, filed her bill in the Circuit Court for the District of Kansas against Daniel M. Adams and others, to foreclose a mortgage made by Adams and wife on certain lands in Shawnee County, Kansas. On the 3d of September, 1878, the lands covered by the mortgage were sold by the treasurer of the county to the appellant for sixty-four dollars and ninety-two cents, being the full amount of tax, penalty, and charges due on DISPOSED OP ON MOTION. 197 them for the year 1877. At the time of the sale there was delivered to the purchaser a certificate, which set forth the sale and stated that she would be entitled to a deed for the lauds on the 4th of September, 1881, unless they should be redeemed prior to that time, in accordance with the provisions of law. On the 8th of February, 1879, Hen tig, the purchaser, leased the premises to C. E. and W. K. Gillan for one year from the 1st of March, 1879, at a rent of two hundred dol- lars, and put them in possession. The certificate of tax sale was recorded November 18th, 1878, and the taxes of 1879, amounting to sixty-seven dollars and eighty cents, were paid by Hentig, March 10th, 1879. On the 4th of June, 1879, the court having become satis- fied that the property was an inadequate security for the mortgage debt, and that Adams, the debtor, was insolvent, appointed H. J. Page receiver of the rents and profits of the property, and ordered that " all persons in possession of such premises, whether parties to this cause, tenants under any of them, or persons who have come into possession pending these proceedings," yield up possession to the receiver on demand. On the 10th of July the receiver reported to the court that he found the Gillans in possession, who refused to surrender, claiming that they held under a lease from Hentig, and had paid one hundred and fifty dollars of their rent, and that the remainder, being only fifty dollars, was not due. The court thereupon issued to the marshal a writ of assist- ance, directing him to eject from the premises the persons described in the original order appointing the receiver, and to put the latter in possession. On the 12th of July, an order in the suit was entered in the order book, directing the complainant and receiver to show cause before the district judge at his chambers, on the 18th, why the writ of assist- ance should not be revoked, and directing that in the mean- time nothing be done under the writ. At the time named the appellant was permitted to file in the suit what was de- 198 CASES SUMMAEILY nominated a substituted petition. This petition was addressed to the " Hon. C. G. Foster, one of the judges of the court," and set forth the claim of the appellant under the tax title with the lease to the Gillans, and concluded as follows : " Wherefore your petitioners pray that the said marshal may be enjoined from further proceeding in the execution of such writ, and that upon the hearing said writ may be revoked by an order of this court, and that your petitioner may have such other and further relief as to equity may seem meet. And as in duty bound will ever pray," etc. This petition was thereupon heard, and an order entered in the order book as follows : " Mary A. Smith, Adm'r'x, etc., Comp't, -j V. 1 2055 Daniel M. Adams et al., Def ts. ) At Chambers, July 18th, 1879. " Now comes the complainant and receiver, H. J. Page, by G. C. Clemens, their solicitors, and A. J. Hentig, by Hentig & Sperry, her solicitors, and thereupon came on to be heard the matter of the petition of A. J. Hentig to enjoin the marshal from further proceeding in the execution of the writ of assist- ance issued herein to put said receiver into possession of the property described in the bill of complaint and decree herein, and to revoke said writ, and was argued by counsel ; on con- sideration whereof it is now here ordered that said petition be and is overruled and denied. " From this order and ruling said A. J. Hentig prays an appeal to the Supreme Court of the United States, which is allowed, and the bond in appeal fixed at three hundred dol- lars, to act as a supersedeas." On the 22d of July the required bond was given and the appeal perfected. The case has been submitted under the twentieth rule, but the submission was accompanied by a motion of the appellee to dismiss for want of jurisdiction. DISPOSED OF OK MOTION. 199 "We think the motion to dismiss must be granted. The order appealed from is not a final decree "in a ease of equity." The petition on which the order was made was in reality nothing more than a motion in the original suit by the ap- pellant, with leave of the court, for a recall of the writ of assistance. It certainly is not a bill in equity, for it names no parties defendant and prays no process. It is addressed to one of the judges of the court, and not to the judges or to the court ; and the appellees were brought in on a rule to show cause in the pending suit, and not by an original writ. Although the judge in rendering his decision gave as a reason for refusing to grant the petition that the tax certificate alone, before the expiration of the time of redemption, vested no title in the purchaser, the order as made settled no such ques- tion. The effect of what was done was simply to leave the writ of assistance in force. The rights of the parties were not changed in any particular. The appellant was still no party to the suit, and she could resist the writ as well after the order as before. She did not by her petition submit her- self to the jurisdiction of the court in the cause. Her appli- cation was in the nature of a suggestion to the court that the writ had been improvidently issued, and therefore should be withdrawn. She has still all the legal and equitable reme- dies to enforce her original rights that she ever had. If the writ would not justify the marshal in putting her tenants out of possession when it was issued, it will not now. If she could by a suit in equity enjoin the execution of the writ against her tenants before her motion was made, she could afterward. It follows that the appeal must be dismissed ; and it is So ordered. 200 CASES SUMMARILY SbWAED V. COENEAU, 102 U. S. 161. Bond. An informal bond, insufficient as a evperaedeas, or an appeal bond, will not necessarily avoid an appeal. Motion to dismiss granted — nisi. Opinion. — The bond in this case is insufficient in form either for the purposes of a supersedeas or an appeal, inas- much as it contains no security for costs. This, however, does not necessarily avoid the appeal ; but we may impose such terms on the appellants for the omission as, under the circumstances, shall seem to be proper. . . . The appeal will, therefore, be dismissed, unless the appellants, on or before the first Monday in January next, give bond, with good and sufficient security, in due form of law, to prosecute their appeal to effect, and to answer all damages and costs if they fail to make their plea good ; the bond to be in the penal sum of one thousand dollars, and the security taken and approved by the justice of this court assigned to the fifth circuit, and it is So ordered. Hayes v. Fisohee, 102 U. S. 121. Appeal — Contempt — ^Wbit op Ereoe. An independent proceeding for contempt cannot be re-examined in this court, and alleged errors in imposing punishment for contempt in an equity cause can be examined here on appeal only, and then only after a final decree. Motion to dismiss granted. Opinion. — Fischer, the defendant in error, brought a suit in equity in the Circuit Court of the United States for the Southern District of New York to restrain Hayes, the plain- tiff in error, from using a certain patented device. In this DISPOSED OF ON MOTION, 201 suit an interlocutory injunction was granted. Complaint having been made against Hayes for a violation of this in- junction, proceedings were instituted against him for con- tempt, which resulted in an order by the court that he pay the clerk one thousand three hundred and eighty-nine dollars and ninety-nine cents as a fine, and that he stand committed until the order was obeyed. To reverse this order, Hayes sued out this writ of error, which Fischer now moves to dismiss, on the ground that such proceedings in the Circuit Court cannot be re-examined here. If the order complained of is to be treated as part of what was done in the original suit, it cannot be brought here for review by writ of error. Errors in equity suits can only be corrected in this court on appeal, and that after a final decree. This order, if part of the proceedings in the suit, was interlocutory only. If the proceeding below, being for contempt, was inde- pendent of and separate from the original suit, it cannot be re-eiamined here either by writ of error or appeal. This was decided more than fifty years ago in Ex parte Kearney, 7 Wheat. 38, and the rule then established was followed as late as New Orleans v. Steamship Company, 20 Wall. 387. It follows that we have no jurisdiction. Motion granted. * Eaileoad Company v. Blair, 100 U. S. 661. CiTATIOlI — NOTICB OF APPBAL. Allowance of an appeal in open court in presence of appellees' counsel, at a term subsequent to the rendition of the decree, the case being duly docketed in this court, will justify appellants in inferring that a citation would be waived. Appellants allowed, under such circumstances, to serve a citation. Motion to dismiss granted — nisi. Opinion, — The decree appealed from in this case was ren- 202 CASES SUMMAEILY dered February 12th, 1879, during the December Term, 1 878, of the Circuit Court. The appeal was not allowed until April 14th, 1879, which was during the March Term, 1879. The practice only dispenses with a citation when the appeal is taken and perfected in open court during the term at which the decree complained of is actually entered ; and, to be technically sufficient, so as to render a citation unneces- sary, the taking of the appeal should in some form appear on the records of the court. The theory of the rule is, that as a party to a suit is constructively present in court during the entire term at which his cause is for hearing, and as the doings of the court are matter of record at the time, he is chargeable with notice of all that is done during the term affecting his suit, because, if actually absent when an order is made, he can on his return obtain full information by an examination of the minutes. Still, an appeal otherwise reg- ular would not probably be dismissed absolutely for want of a citation, if it appeared by clear and unmistakable evidence, outside of the record, that the allowance was made in open court at the proper term, and that the appellee had actual notice of what had been done. The records of the court in this case show an allowance of the appeal in court when the appellees y^ ere present by their solicitors. It was, however, at a term subsequent to the rendition of the decree,^and under the practice a citation was necessary to bring the appellees to this court. The case was docketed promptly here at the term to which the appeal was returnable, and as the appellants might well have sup- posed that a citation would be waived, we will not dismiss the appeal absolutely, but apply the rule acted on in Dayton v. Lash, 94 U. S. 112, and "grant summary relief" "by im- posing such terms upon the appellants as under the circum- stances may be legal and proper." An order may be entered that unless the appellants cause a citation, returnable on the first Monday of February next, DISPOSED OF ON MOTION-. 203 to be issued and served upon the appellees before that date, the appeal be dismissed. 80 ordered. Raileoad Company v. Schuttb, 100 U. S. 644. Bond — ^Trauscript. A supersedeas will be vacated when it was fraudulently procured. The transcript being incomplete, leave is granted to supply omissions. On motion. Opinion. — In this case the appellees have moved : 1. To vacate the supersedeas, because the approval of the supersedeas bond by the justice of this court, who allowed the appeal, was obtained by fraud and perjury ; and, 2. To dismiss the appeal, because the transcript of the record which has been filed in this court is not complete and is not properly certified. The appellants also have moved for leave to file a new bond in case the old one shall be set aside. 1. As to the vacation of the supersedeas. That the approval of the bond was brought about by gross fraud and perjury is so conclusively shown that no attempt has been made to deny it. The evidence also shows with equal certainty that the bond was obtained in the most irregular way. A lawyer who, to say the least, was an entire stranger to all the parties in interest, was employed to procure, within thirty-six or forty-eight hours, sureties for the appellants suf- ficient to secure the payment of one hundred thousand dollars. He was to be paid for his services six bonds of one thousand dollars each of the Florida Central Railroad Company, the appellant corporation, which were then of no marketable value. In due time he produced the requisite number of persons to sign as sureties. When they came the "usual 204 CASES SUMMAEILY form of justification of about four lines in length" was "ig- nored," and a full affidavit was drawn for each surety, wherein was set forth "the name and residence of the surety, the amount of real estate, its location, its value, whether or not incumbered, if so, to what amount ; next, the amount of his personal property, its character, whether or not incumbered, and if so, to what amount ; next, whether or not the surety was upon any other bond ; next, whether or not there were any judgments against the surety ; and finally summing up that he owned so much over all his debts and liabilities, naming the sum. Each of these questions each surety answered favorably, and swore to. The justifi- cations were extraordinary in their minuteness, as the affi- davits will show." This being done, a bond sufficient in form was signed by the "procured" sureties. One of the persons who signed, said to be a "very wealthy man," was paid one hundred and twenty-five dollars for what he did. Another, " the son of a former judge of the Supreme Court of the State of New York," received twelve dollars and fifty cents ; another, a colored porter in a lawyer's office, ten dollars ; another was paid ten dollars ; and another was promised fifty dollars, but actually paid nothing. They were all irresponsible pecuni- arily, and known to or suspected by the police of the city of New York, as "purchasable sureties." The money to pay them for their fraudulent work was furnished by an agent of the appellant company under the form of buying back one of the worthless bonds promised as a reward for what was done. After the bond was executed by the sureties thus obtained, the president of the appellant corporation was called in. He signed officially the name of the corporation, and affixed the corporate seal, but did not see, or ask to see, any of the per- sons who had become bound with his company. Neither he nor any other person actually interested in the litigation be- came in any manner personally bound. DISPOSED OF ON MOTION. 205 With such a bond, procured in such a way, the president of the corporation presented himself at the last moment to the justice of this court, who heard the cause in the Circuit Court at his summer residence in Vermont, and asked that the bond be approved. On its presentation, as we are informed by the testimony of the president himself, the justice read and seemed to be impressed "with the fullness and particularity of the justifications." He said, "This seems to be a good bond." The reply was, "Yes, Judge, I believe it to be a very good bond." The justice then asked as to one of the parties whose name appeared, and the reply was, '' I am informed that he is the son of a former judge of the Supreme Court of the State of New York of that name," adding that another of the signers, "I am advised, is a very wealtliy man." Under these circumstances, the bond was approved. To allow it to stand and to operate as a stay of execution upon an important decree until the case can be reached in its order on our crowded docket would be a reproach upon the admin- istration of justice. We are aware that in Jerome v. McCarter, 21 Wall. 17, we said, "that, upon facts existing at the time the security was accepted, the action of the justice, within the statute and within the rules of practice adopted for his guidance, is final," and that we would "presume that when he acted, every fact was presented to him that could have been." We are not inclined to depart from that rule, but, in a case of this kind, fraud is always open to inquiry. When dis- covered, justice requires that summary relief should be af- forded, whenever and wherever it may be done consistently with the forms of orderly judicial procedure. This bond is as much false as if it had been forged. The persons who signed it are not, in fact, what they were represented to be. We have no hesitation in setting aside the approval of the bond. 2. As to the acceptance of a new bond in the place of the old one. 206 CASES SXJMMAEILY This application is addressed to our judicial discretion, and is based on the alleged ignorance of the officers and agents of the appellant corporation as to the character of the bond they got accepted. They insist in the most positive manner that they were deceived, and that they actually believed the security they offered was ample. The character of the presi- dent is vouched for under oath by many persons occupying high positions in public and private life, and they all say " they do not believe he would knowingly countenance or in any way participate iu or suffer an attempt to impose on the Supreme Court of the United States, or any justice thereof, a fraudulent or worthless bond ;" but the fact still remains that he did present such a bond, and if he was ignorant of the wrong that was being done, the other agents of the com- pany were not. Taking the whole case together, we think it quite as incumbent on us to refuse to accept a new bond as it is to set aside the old one. The motion to vacate the supersedeas is granted. 3. As to dismissing the appeal. The evidence shows that after the bond was accepted the president of the railroad company went with his own copy- ists to the office of the clerk of the Circuit Court, and in the absence of the principal clerk selected such of the papers and proofs used on the hearing below as he thought were neces- sary, and had them copied into the transcript. This being done, he caused a certificate to be added, signed in the name of the clerk by a deputy, and sealed with the seal of the court, to the effect that the transcript annexed contained copies of such entries, papers, and proofs as were "necessary on the hearing of the appeal prayed and allowed in the said cause." It is now alleged that many important papers and documents used on the hearing below, and necessary for the proper determination of the cause here, have been omitted from the transcript as filed. While we desire to encourage in every proper way all at- DISPOSED OF ON MOTION. 207 tempts made ia good faith to exclude immaterial matter from the transcripts brought here on appeals or writs of error, it will not do to permit the appellant or the plaintiff in error to make up a record to suit himself, without any regard to the wishes of his opponents or the rules and practice of the court. We therefore order, — That the appellees file with the clerk of this court, and with the counsel for the appellant, on or before the 1st day of February next, a statement of the papers, documents, and proofs used on the hearing below, and omitted in the trans- cript now on file, which they deem necessary for the proper presentation of the cause, and that unless the appellant shall, on or before the 15th day of March, file in this court as part of the record copies of such papers, duly certified by the clerk of the Circuit Court or his deputy, under the seal of the court, this appeal be dismissed. If in this way unnecessary papers are brought up, we will, on application, make such order in respect to costs as may under the circumstances be proper. Geigsby v. Purcell, 99 U. S. 505. Pkactioe. Where, by reason of the negligence of the appellant, the transcript is not filed at the term of this court to which the appeal is taken, the court may dismiss the appeal of its own motion, or will do so upon motion- of a party. Motion to dismiss granted. Opinion. — This was a suit to enforce the provisions of a trust deed executed by J. Warren Grigsby to secure " all the debts of the house of Taylor, Shelby & Co., created since the 14th day of July, 1857," for which he was liable. The bill was filed by part of the creditors for themselves and such others as should come in and prove their claims. In the 208 CASES SUMMARILY progress of the cause a reference was had to a master, who in due time made his report. At the hearing before the master, the appellant, Susan P. Grigsby, the wife of J. Warren Grigsby, appeared as a creditor and proved her claim. To the report of the master she excepted ; and upon the hearing the court decreed in her favor to the amount of twenty-one thousand seven hundred and fifty-three dollars and five cents, and directed the payment of that amount to her from the fund in court. . The remainder of her claim was rejected. This decree was rendered at the February Term, 1875, of the Circuit Court, and on the 15th day of the month of Febru- ary. On the 23d of the same month, and during the term, an entry was made in the cause granting an appeal prayed by J. Warren Grigsby and Susan P. Grigsby, but it does not appear that any bond for costs or for a supersedeas was ever executed. On the 19th of April, 1875, Mrs. Grigsby receipted to the receiver in the cause for the amount of the decree in her favor, and on the 6th of May, still during the February Term, an appeal prayed by W. H. Thomas was granted, but, so far as appears, no bond executed. The October Term, 1875, of this court closed by adjourn- ment on the 8th of May, 1876. Neither of these appeals were docketed during that term, and the transcript of the record was not filed in court. So far as appears, no attempt was made to do so, and no excuse has been given for the delay; but on the 12th of August, 1876, before the com- mencement of the next term, the transcript was filed by Mr. and Mrs. Grigsby, and their appeal docketed. That of Thomas was not docketed until during the present term. Nothing further was done in the case by either party until December 14th, 1878, when the appellees moved to dismiss the appeal of Grigsby and wife because it was a joint appeal, the appellants not being united but opposed in interest. Printed briefs for and against this motion were filed by the DISPOSED OF ON MOTION. 209 respective parties, and on the 23d of December the motion was overruled. The attention of the court was not called to the delay in filing the transcript and docketing the appeals until January 19th, 1879, when the causes were reached in their regular order on the docket. The counsel for the ap- pellees then suggested the delay, and moved to dismiss on that account. Section 997 of the Revised Statutes, which is a substantial re-enactment of a similar provision in section 22 of the Ju- diciary Act of 1789 (1 Stat. 84), requires that "there shall be annexed to and returned with any writ of error for the removal of a cause, at the day and place therein mentioned, an authenticated transcript of the record, an assignment of errors, and a prayer for reversal, with a citation to the ad- verse party." Appeals are subject to the same rules, regu- lations, and restrictions as ar-e prescribed by law in cases of writs of error. . . . Under this legislation it has long been held that if the transcript was not filed and the cause docketed during the term to which it M'as made returnable, or some sufficient excuse given for the delay, the writ of error or appeal became inoperative, and the cause might, on that account, be dis- missed. . . . After the cases of Hamilton v. Moore, 3 Dall. 371, and Blair v. Miller, 4 Dall. 21, an attempt seems to have been made in Wood v. Lide, 4 Cranch, 180, to adopt a less strin- gent rule, but the uniform current of decisions since is all the other way; and in Edmonson v. Bloomshire, 7 Wall. 355, we considered the practice so well established as to make it better " to resort to the legislature for its correction, than that the court should depart from its settled course of action for a quarter of a century." There are, however, exceptions to the rule, as in United States v. Gomez, 3 Wall. 752, where there was fraud, and in United States v. Booth, 21 How. 506, where the State court to which the writ was directed 14 210 CASES SUMMARILY ordered the clerk to disregard the writ and make no return ; but in all such cases it must appear that the appellant or the plaintiff in error has not himself been guilty of laches or want of diligence. These appellants bring themselves within none of the ex- ceptions which have ever been recognized. There has been no fraud or circumvention, and the whole difficulty arises from their own negligence alone. It does not appear that the clerk was called upon to make the transcript until after the term of this court to which the appeal was returnable had closed. No security for costs ever was given, and in fact nothing was done toward the prosecution of the appeal until it had become inoperative by lapse of time, except to obtain, an order of the court for its allowance. To entertain the cause under such circumstances would be to encourage an addition to the already burdensome delay necessarily attendant upon litigation in this court on account of the crowded state of the docket. Instead of this, we should, as we do, insist on promptness and activity by all who come here to obtain a re-examination of judgments and decrees against them. It by no means follows, as seems to be supposed by coun- sel who resist this motion, that if parties appear and without objection go to a hearing in a cause docketed after the return term, our judgment will be void for want of jurisdiction. The real objection is not that this court has no jurisdiction, but that the plaintiff in error or the appellant, as the case may be, has failed to duly prosecute his suit, and this objec- tion may be taken advantage of by the court upon its own motion, or by the appellee or the defendant in error at any time before hearing. Mere appearance does not amount to a waiver. In this case the objection was taken in time. Appeal dismissed. DISPOSED OP ON MOTION. 211 Vansant V. Gas-Light Company, 99 U. S. 213. Bond — Citation. An appeal bond, approved by the Chief Justice and filed during the term, will not dispense with a citation where the appeal was not taken in open court during the term. Motion to dismiss granted. Opinion. — No citation has been issued in this cause. A citation only becomes unnecessary when the appeal is allowed in open court during the term at which the decree is ren- dered. This implies some action of the court while in open session, and to be regular should be entered on the minutes. Here, although an appeal bond was approved by the Chief Justice of the court and iiled with the clerk during the term, it does not appear to have been done while the court was actually in session. So far as the record shows, it was the act of the Chief Justice alone out of court. The entry on the order book is simply a direction to the clerk, by the solicitor of the appellant, to enter an appeal. It in no way indicates any action whatever either in or by the court. Appeal dismissed. Stewakt v. Salamon, 97 U. S. 361. Appeal — Pkactice. An appeal will not be entertained from a decree entered in an inferior court in exact accordance with a mandate of this court, but will be dis- missed on motion. Motion to dismiss granted. Opinion. — An appeal will not be entertained by this court from a decree entered in the circuit or other inferior court, in exact accordance with our mandate upon a previous ap- 212 CASES StrMMAEILY peal. Such a decree, when entered, is in effect our decree, and the appeal would be from ourselves to ourselves. If such an appeal is taken, however, we will, upon the applica- tion of the appellee, examine the decree entered, and if it conforms to the mandate, dismiss the case with costs. If it does not, the ease will be remanded with appropriate direc- tions for the correction of the error. The same rule applies to writs of error. This is not intended to interfere with any remedy the parties may have by mandamus. This is an appeal from a decree entered upon our mandate. No complaint is made as to its form, and it seems to be in all respects according to our directions. The effort of the appellant was to open the case below, and to obtain leave to file new pleadings, introducing new defenses. This he could not do. The rights of the parties in the subject-matter of the suit were finally determined upon the original appeal, and all that remained for the Circuit Court to do was to enter a decree in accordance with our instructions and carry it into effect. If, in the progress of the execution of the decree after its entry, either party is aggrieved, he may appeal from the final decree in that behalf; but such an appeal will bring up for re-examination only the proceedings subsequent to the mandate. The appeal will be dismissed with costs, and it is So ordered, Mr. Justice Cliffoed dissenting. O'Reilly v. Edrington, 96 U. S. 724. Bond. On writs of error and appeal, the bond must be approved by the judge or justice. He cannot delegate the power to the clerk. Leave is granted to file a bond in due form. On motion. DISPOSED OF OK MOTION. 213 Opinion. — None of the objections to this appeal are, in our opinion, well taken, except the one which relates to the approval of the bond. That, we think, must be sustained. The security required upon writs of error and appeals must be taken by the judge or justice : Rev. Stat., § 1000. He cannot delegate tliis power to the clerk. Here the approval of the bond was by the clerk alone. The judge has neve^- acted ; but, as the omission was undoubtedly caused by the order of the court permitting the clerk to take the bond, the case is a proper one for the application of the rule by which this court sometimes refuses to dismiss appeals and writs of error, except on failure to comply with such terms as may be imposed for the purpose of supplying defects in the pro- ceedings. . . . If the appellant desires that the appeal shall operate as a supersedeas, the bond may be in the sum of seven thousand dollars ; otherwise, in the sum of two hundred and fifty dollars. The security may be approved by any judge or justice authorized to sign a citation upon an appeal in the cause ; but this cause will stand dismissed unless the appel- lant shall, on or before the first Monday in March next, file with the clerk of this court a bond, with good and sufficient security, conditioned according to law, for the purposes of the appeal ; and it is So ordered. Pearson v. Yewdall, 95 U. S. 294. Amendment op Wkit op Ebroh — Paeties — Due Pbocess op Law. Where a motion to dismiss is entertained for want of necessary parties to the writ of error, leave to amend the writ by supplying the omission will not be granted when the record presents for review questions only which have been settled by decisions of this court. Motion to dismiss granted. 214 CASES SUMMARILY Opinion. — It having been suggested to us at the last term that the city of Philadelphia was a party to this cause in the court below, and adverse in interest to the plaintiffs in error, leave was granted the defendants in error to move to dismiss this suit, because the city is not named in the writ ; and for the city to appear by counsel to be heard in support of the motion. That motion has now been made, and the plaintiffs in error, while resisting it, ask leave, under § 1005 Eev. Stat., to amend their writ by naming the city as a defendant in case it shall appear to be necessary. The City Councils, by ordinance, ordered that Paschall Street should be opened to public use. Thereupon the present defendants in error, owning property which would be taken by the opening, petitioned the Court of Quarter Sessions, conformably to the act of the General Assembly of Pennsylvania regulating such proceedings, to appoint proper persons to view the premises and assess their dam- ages. In accordance with this petition, the court appointed a jury of six men to view the premises 'and assess the dam- ages which had been sustained. Notice of their appoint- ment and of the time and place they would meet to perform their duties was served upon all the owners of property through which the street would run. Availing themselves of this notice, the plaintiffs in error appeared among others and presented their claims. Notice of the meeting was also served, in accordance with the further provisions of the statute, upon the law department of the city ; and the solicitor, who was charged by law with the duty of representing and protecting the interests of the city in all such matters, appeared before the jury in his ofScial capacity. The viewers, after a hear- ing, made a report to the court of their allowances to the several claimants. The plaintiffs in error excepted to the report, for the reason, among others, that the amount awarded to them was too small ; and the city also excepted, DISPOSED OF ON MOTIOK. 215 because it was too large. The Court of Quarter Sessions overruled the exceptions of both parties and confirmed the report. The plaintiffs in error then appealed to the Supreme Court, and the report being there again confirmed, they now seek to bring the case here for review upon this writ. There can be no doubt but that the city is an indispensable party to this suit. The viewers were appointed at the in- stance of the defendants in error, but they were appointed in a proceeding by the city, in its nature adverse to all the property owners affected, for an appropriation of private property to public use. It nowhere appears that the inter- ests of the plaintiffs in error are adverse to those of the defendants in error. They were both property owners, and both seeking compensation for their property before it should be opened to the use of the public. The city alone repre- sented the public, and was, therefore, the only party to the proceeding adverse to the claimants. Under such circum- stances, we cannot properly review the judgment below in its absence. The question now arises whether the plaintiffs in error shall have leave to amend. Section 1005 of the Eevised Statutes authorizes this court in its discretion, and upon such terms as it may deem just, to allow an amendment of a writ of error when the statement of the parties thereto is defect- ive. The right of a party to amend is not absolute, but it is to be granted by the court in its discretion. Whether it should be granted in a particular case must depend upon the attending circumstances. In this case we think the amendment ought not to be al- lowed. We have looked carefully through the record, and cannot find that any question is presented which has not been many times decided. We have held over and over again that art. 7 of the amendments to the Constitution of the United States, relating to trials by jury, applies only to the courts of the United States, Edwards v. Elliott, 21 Wall. 216 CASES StTMMARILY 557 , and in the act of the Geueral Assembly of Pennsyl- vania, now under consideration, ample provision is made for an inquiry as to damages before a competent court, and for a review of the proceedings of the court of original jurisdic- tion, upon appeal to the highest court of the State. This is due process of law within the meaning of that term as used in the Federal Constitution. To grant the amendment would, in our opinion, lead only to unnecessary delay and expense. Writ dismissed. Cambuston v. United States, 95 U. S. 285. Afpeaii— Practice. An appeal taken, and a motion for a new trial made, after the time al- lowed by law and rules of practice, being too late, a motion to dismiss is granted. Motion to dismiss granted. Opinion. — This is an appeal from the District Court of the United States for the District of California, in a proceed- ing under the " Act to ascertain and settle the private land claims in the State of California," passed March 3d, 1851. 9 Stat. 631. The case was here at the December Term, 1857, when a former decree of the District Court was reversed and the cause sent back for further hearing. United States v. Cambuston, 20 How. 59. The mandate was filed in the court below May 5th, 1859, and the further hearing resulted in a decree November 12th, 1859, rejecting the claim. The court adjourned for the term on the first Monday in December, 1859, previous to which time no motion for a new trial or petition for rehearing had been filed. On the 24th of February, 1860, Lansing B. Mizner, as " a party in interest," filed with the clerk of the court a petition for rehearing. "What his interest actually was nowhere ap- pears in the record. A copy of this petition was served on the district attorney of the United States the same day the DISPOSED OF ON MOTION. 217 original was filed in the clerk's office; and, March 13th, 1860, the district attorney and the attorney for the claimant en- tered into the following stipulation : — " It is hereby stipulated that Tully E. "Wise, acting United States district attorney, waived written notice to him of a motion to be made for a new trial during the term of the United States District Court, ending the first Monday in December last, and that he considered a verbal notice of in- tention to move as sufficient to him, and then given to him, the said Wise. It is further stipulated, that, if the said Henry Cambuston now has the right to have the said motion heard, it shall not be prejudiced by delay until the return of the Hon. Ogden HoflFman." Nothing further was done until April 2d, 1875, when the widow of Cambuston — he having died January 22d, 1869 — appeared in court and asked to " be permitted to become the party claimant of the land," as executrix of the will of her deceased husband, which had been admitted to probate May 3d, 1869. An order to this effect was made April 3d, 1875, and on the same day the claimant asked that a new trial be granted, and that the decree rejecting the claim might be re- versed. The parties thereupon appeared, and, after hearing, the court denied the motion. On the same day, April 3d, 1875, this appeal was allowed, both from the final decree and the order refusing a new trial. The United States now move to dismiss the appeal, because taken too late. The statute in force when the decree was rendered, pro- vided that writs of error and appeals should not be brought to this court except within five years after passing or render- ing the-decree or judgment complained of. 1 Stat. 85, § 22. As this decree was rendered November 12th, 1859, and the appeal not taken until April 3d, 1875, it is clear that the motion to dismiss should be granted, unless the petition for rehearing or motion for a new trial suspended the operation of this statute. 218 CASES StTMMAEILY In Brockett v. Brockett, 2 How. 238, it was held that a petition for rehearing filed during the term, and actually en- tertained by the court, suspended the operation of a decree in equity until the petition was disposed of. Neither the petition for a rehearing nor the motion for a new trial in this case was filed, or the attention of the court in any manner called to such a proceeding, during the term at which the decree was rendered. The proceeding before the District Court was statutory, and not at common law or in equity. It was, however, a suit, and must be governed by the rules of law applicable to that class of judicial proceedings. Con- sequently, when the term closed at which the decree was ren- dered, the parties were out of court, and the jurisdiction ended so far as that court was concerned, no steps having been taken to keep it alive. The decree was then in full force and oper- ative for all purposes. According to the practice in suits at common law and in equity, no step has since been taken which can have the effect of suspending the decree for the purpose of an appeal. By § 726 of the Revised Statutes, the courts of the United States are empowered to grant new trials in cases where there has been a trial by jury, for reasons for which new trials have usually been granted in the courts of law ; and by § 987, when a Circuit Court enters judgment in a civil action, either upon a verdict or on a finding of the court upon the facts, execution may, on motion of either party, at the discretion of the court, and on such conditions for the security of the adverse party as it may judge proper, be stayed forty-tw.o days from the time of entering judgment to give time to file in the clerk's office of the court a petition for a new trial. If such petition is filed within such term of forty-two days, with a certificate thereon of any judge of the court that he allows it to be filed, execution shall, of course, be further stayed until the next session of the court. From this legis- lation it is apparent that it was not the policy of Congress to DISPOSED OP ON MOTION. 219 suspend the operation of a judgment so as to allow an appli- cation for a new trial in any case beyond a period of forty- two days from the time of its rendition. Here judgment was rendered November 12th, 1859, and the petition for rehear- ing was not filed until one hundred and twenty-five days thereafter. The stipulation between counsel, under date of March ISth, 1860, was not that a motion for new trial had been filed, but that notice of an intention to make such a motion had been given ; and that, if a hearing could then be had, it should not be prejudiced by further delay until the return of the district judge. This application seems never to have been brought to the attention of the court. It is unnecessary to decide whether such a motion can be filed after the term has closed, if no application is made during the term for stay of execution under the statute or for an exten- sion of time to prepare the motion. In suits in equity the practice is even more strict. Equity rule 88 provides that, in cases where an appeal lies to this court, no rehearing shall be granted after the term at which the final decree shall have been entered and recorded. We are clearly of the opinion, therefore, that the appeal from the decree of November 12th, 1859, was not taken in time, and as no appeal lies from the order refusing the new trial, Warner v. Norton et al., 20 How. 448, it follows that the motion to dismiss must be granted ; and it is 8o ordered. NiMicK V. Coleman, 95 U. S. 266. Appeal. No appeal lies to this court from the action of a Circuit Court refusing to take jurisdiction upon an appeal, but proceeding under its supervisory jurisdiction alone. Motion to dismiss granted. Opinion. — We think the motion to dismiss in this case must be granted. The record shows affirmatively that the 220 CASES SUMMAEILY Circuit Court refused to take jurisdiction upon the appeal, and did proceed under its supervisory jurisdiction alone. The case is thus brought directly within our decision in Stickney v. Wilt, 23 Wall. 150; and, as the order of the Dis- trict Court has been affirmed, we are not called upon to de- termine whether we should set aside the action of the Circuit Court for want of jurisdiction, as we did in that case, be- cause there was a reversal. If, as is claimed, the District Court acted without jurisdiction, or in a manner not to bind the parties, its decree as made was void ; and the aggrieved partnership creditors may very properly consider whether they cannot proceed in equity to call the trustees to a proper accounting and distribution. Upon that question, however, we express no opinion. We are clear that no appeal lies to this court from the action of the Circuit Court in respect to what has been done ; and the suit is accordingly Dismissed. CoNEO V. Crane, 94 U. S. 441. BANKBUPTCY — StJPEEYISORT JtrEISDICTION OF ClBCtJIT COTJBTS. A proceeding in the Circuit Court, acting under its supervisory power in bankruptcy, is not appealable. Motion to dismiss granted. Opinion. — It must now be considered as settled that ap- peals do not lie to this court from the decisions of the Cir- cuit Courts in the exercise of their supervisory jurisdiction under the bankrupt law. In Wiswall et al. v. Campbell d al., 93 U. S. 347, we held that " a proceeding in bankruptcy, from its commencement to its close upon the final settlement of the estate, is but one suit. The several motions made and acts done in the Bankrupt Court in the progress of the cause are . . . but parts of the suit in bankruptcy from which they cannot be separated." And again : " Every person sub- mitting himself to the jurisdiction of the Bankrupt Court in DISPOSED OF ON MOTION. 221 the progress of the cause, for the purpose of having his rights in the estate determined, makes himself a partj'^ to the suit, and is bound by what is judicially determined in the legiti- mate course of the proceeding." And in Sandusky v. Na- tional Bank, 23 Wall. 293, it was decided that " any order made in the progress of the cause may be subsequently set aside and vacated, upon proper showing made, provided rights have not become vested under it which will be dis- turbed by the vacation." These principles are decisive of this ease. The rights of the parties grow out of a sale made by the court under the authority of § 5065 Revised Statutes. The bids were re- ceived by the provisional assignee, but the court determined which should be accepted, and gave directions as to the transfer of title. Clearly, then, what was done both as to the first and second sale was in the course of the bankruptcy proceeding and part of that suit. As such, it was subject to revision in the Circuit Court under its supervisory jurisdic- tion. Both Hodgkins and Conro & Carkin submitted them- selves to the jurisdiction of the court to the extent that was necessary for the completion of their respective purchases. Conro & Carkin were parties to the proceeding by which the sale to Hodgkins was set aside and that to them made. Having been in court when the order under which their claim was made, they can properly be brought in to answer a motion to set it aside. Such a motion would not be a new suit, but a new proceeding in the old suit in bankruptcy, and therefore not subject to revision here upon appeal. This was evidently the understanding of the parties at the time ; for the original petition of Hodgkins and Crane was filed in the District Court sitting in bankruptcy, and the petition for review purports, on its face, to be filed under § 4986 Revised Statutes, Avhich confers the supervisory juris- diction. Appeal dismissed. 222 CASES SUMMAEILY Daytost V. Lash, 94 U. S, 112. AppEAii — Citation. An appeal being taken out of term, a citation must he served to bring parti-es in. Where, in the discretion of this court, circumstances warrant it, leave to serve a citation will be granted. Motion to dismiss granted — nisi. Opinion. — This record shows that an appeal -was allowed, a supersedeas bond approved, and a citation signed February 26th, 1876 ; but it does not show a service of the citation, and the afBdavits presented upon this motion fail to satisfy us that proper service was ever in fact made. The appeal was, however, duly obtained ; and the record has been filed and the cause docketed here. We have, therefore, the record ; but a service of the citation is necessary to bring the parties before us, as the appeal was taken out of term. We cannot proceed to hear and determine the cause until the parties are here, either constructively by service, or in fact by their appearance. Perhaps the language of Mr. Chief Justice Taney, in Vil- labolos V. United States, 6 How. 90, and in United States V. Curry, id. 112, as well as of Mr. Justice Nelson, in City of Washington v. Dennison, 6 Wall. 496, if read literally and without reference to the facts then under consideration, may be broad enough to justify a dismissal of this appeal, because the citation was not served before the first day of the term. But in tlie case of Villabolos the real question was as to the validity of the citation, and not as to its service, if valid ; in Curry's case the citation was not issued until after the term at which the appeal was returnable ; and in City of Washington v. Dennison the effort was to obtain a super- sedeas in a case where the writ was not sealed until eleven days after the rendition of the judgment. None of the cases DISPOSED OF ON MOTION. 223 made it necessary to decide that a citation actually issued upon the allowance of an appeal must be served before the first day of the term, in order to preserve our jurisdiction ; and we think that such an omission does not avoid the appeal, but rather furnishes a case where, under the rule in Martin v. Hunter's Lessee, 1 Wheat. 361, and followed in Davidson v. Lanier, 4 Wall. 454, we " may grant summary relief" "by imposing such terms upon the appellants as under the circumstances may be legal and proper." As this appeal was returnable to the present term, and some attempt was made to serve the citation, which the ap- pellants may have supposed was actually completed, we order that, unless the appellants cause a new citation, returnable on the first Monday in February next, to be issued and served upon the appellee before that date, the appeal be dismissed. HUEST V. HOLLINGSWOETH, 94 U. S. 111. Appeax — Practice — Wkit of Eeroe. A transcript being docketed in this court as upon a writ of error, there being in the case both a writ of error and an appeal, the court will deter- mine at the hearing upon which the case is properly in this court, and will not dismiss the case on motion. Motion to dismiss denied. Opinion. — Hurst, the plaintiff below, being in doubt whether his case was one to be brought here by appeal or by writ of error, took the precaution of suing out a writ of error and also of obtaining the allowance of an appeal. At the proper time he filed a transcript of the record, and the cause was docketed by the clerk as upon a writ of error ; thereupon the defendant moved to docket and dismiss the appeal. Hurst now appears and asks leave to docket his appeal. The defendant does not object to this, but, treating 224 CASES SUMMAEILT it as an election for Hurst to proceed here upon the appeal, moves to dismiss the writ of error. These motions are all denied. There was but one action in the court below, and there is but one record. When the transcript of that record was brought here by Hurst, his cause was docketed. It is not necessary to enter it twice, because, out of abundant caution and to guard against a pos- sible chance of dismissal, he has brought it here in two ways. He has but one cause ; and when we come to examine it we will determine whether it is properly here by appeal or by writ of error, and will proceed accordingly. Motions denied. BuEEOws V. The Maeshal, 15 Wall. 682. Appeal — ^Peactioe — ^Weit of Eekoe. On petition for a rule on a marshal to show cause why he should not make a deed to the highest bidder for land sold on execution, a judgment discharging the rule, and for costs against the petitioner, cannot be re- viewed in this court except by writ of error. No appeal lies. Motion to dismiss granted. Opinion. — Two judgments, as the appellant represents, were rendered in the Circuit Court at Raleigh, November Term, 1869, against one Taylor, in favor of the creditors therein named, for certain specified amounts, and that the same were placed in the hands of a deputy marshal for col- lection ; that the marshal, having levied the executions upon a certain described parcel of land, advertised the same for sale according to law, and that the petitioner became the purchaser thereof, being the highest bidder at the sale, for the sum of one hundred and ten dollars, which, as he al- leges, he paid to the deputy marshal ; that at the ensuing term of the court he applied to the marshal to execute to him as the purchaser a deed of the interest so purchased and DISPOSED OF ON MOTION. 225 paid for as aforesaid ; that the marshal having refused to comply with the request, he then prepared and tendered to the marshal a proper draft for a deed, and requested him to execute the same, which he refused and still refuses to do, and has given notice that he will sell the premises upon other executions in his hands. Wherefore the petitioner prayed the Circuit Court to lay a rule upon the appellee, as such marshal, to show cause at the next term of the court why he should not make to him as the purchaser a good and sufficient deed in fee simple of the described tract, and he also prayed for an order staying all further proceedings under the said other executions in his hands toward a resale of the premises which he purchased. Subsequently the appellee appeared and filed an answer, and the record shows that the court, at the succeeding ISTo- vember Term, rendered judgment for the appellee, directing that the rule be discharged, and that the petitioner pay all costs. Whereupon the petitioner appealed to this court. Such a motion as the one first described and the rule granted under it were proceedings at law, and so also were the judgment and the order of the court directing that the petitioner should pay all costs, and the court is of the opinion that the judgment could not be removed into this court in any other way than by a writ of error ; that an appeal will not lie to this court in such a case under the twenty-second section of the Judiciary Act, and that the appeal must be Dismissed for want of jurisdiction. Hampton v. Rouse, 13 Wall. 187. Peactice— Writ of Error. In a writ of error to a joint judgment against several, all must join. Motion to dismiss granted. 15 226 CASES StrMMAEILY Opinion. — It has often been held that in a writ of error to a joint judgment against several, all must join ; and that the omission of one or more, without such proceeding, is an irregularity for which the writ will be dismissed. The mo- tion in the present case must, therefore, be Gh'anted. Wheeler v. Hareison, 13 Wall. 51. Appeal — ^Peactice. Where two appeals axe taken — the first being from a decree of affirm- ance without taxing costs or mentioning the sum for which it was rendered — the second is held to be the final decree, and the first is dismissed. Motion to dismiss granted. Opinion. — It is quite true that two appeals are not al- lowed in the same case on the same question. We must de- termine which one of the two should be dismissed. It may be that the first appeal was from a decree which might be taken as final if the second decree had not been rendered. But it is obvious that the circuit judge did not regard it as final, and it was certainly defective. The second decree was rendered, not by inadvertence, but in view of the rendition of the first decree ; and, in order to settle the practice in the Circuit Court for the Southern District' of New York, that a decree of affirmance, without taxation of costs and with- out specifying the sum for which it is rendered, is not to be regarded as a final decree. We think this the better practice, and therefore hold that the first appeal must be Dismissed as irregular. DISPOSED OP ON MOTION. 227 The Peotector, 12 Wall, 700. Limitations— Eebellion. The proclamations of blockade, and that the war had closed, marked the periods of beginning and ending of the Eebellion, in the several States therein mentioned. Motion to dismiss granted. Opinion. — The question in the present case is, when did the Rebellion begin and end ? In other words, what space of time must be considered as excepted from the operation of the Statute of Limitations by the War of the Rebellion ? Acts of hostility by the insurgents occurred at periods so various, and of such different degrees of importance, and in parts of the country so remote from each other, both at the commencement and the close of the late civil war, that it would be difficult, if not impossible, to say on what precise day it began or terminated. It is necessary, therefore, to refer to some public act of the political departments of the government to fix the dates ; and, for obvious reasons, those of the executive department, which may be, and, in fact, was, at the commencement of hostilities, obliged to act during the recess of Congress, must be taken. The proclamation of intended blockade by the. President may therefore be assumed as marking the first of these dates, and the proclamation that the war had closed as marking the second. But the war did not begin or close at the same time in all the States. There were two proclamations of intended blockade: the first of the 19th of April, 1861, embracing the States of South Carolina, Georgia, Alabama, Florida, Mississippi, Louisiana, and Texas ; the second, of the 27th of April, 1861, embracing the States of Virginia and North Carolina ; and there were two proclamations declaring that the war had closed; one issued on the 2d of April, 1866, 228 CASES SUMMAEILY embracing the States of Virginia, North Carolina, South Carolina, Georgia, Florida, Mississippi, Tennessee, Alabama, Louisiana, and Arkansas, and the other issued on the 20th of August, 1866, embracing the State of Texas.' In the absence of more certain criteria, of equally general application, we must take the dates of these proclamations as ascertaining the commencement and the close of the war in the States mentioned in them. Applying this rule to the case before us, we find that the war began in Alabama on the 19th of April, 1861, and ended on the 2d of April, 1866. Morie than five years, therefore, had elapsed from the close of the war till the 17th of May, 1871, when this appeal was brought. The motion to dismiss, therefore, must be Cfranted. The Peotectoe, 11 Wall. 82. Amend — AppEAii — Pakties — Wbit op Ebbob. In toth writs of error and appeals, a defect in the title of the parties is fatal to the jurisdiction of this court. On motion. Opinion. — The motion made by the appellees to dismiss the case from the docket for want of jurisdiction is grounded upon a defect of the title of the parties in the appeal as al- lowed. The title is " William A. Freeborn & Co. v. The Ship Protector and owners." This defect in a writ of error has been held fatal to the jurisdiction of the court, since the case of Deneale et al. v. Stump's Executors, down to the present time. Nor can the writ be amended, according to repeated decisions of this court. Porter v. Foley, 21 How. 393; Hodge v. Williams, 22 How. 87. The only question before us is whether the same rule applies to appeals in ad- miralty. Originally, decrees in equity and admiralty were DISPOSED OF ON MOTION. 229 brought here for re-examination by a writ of error, under the 22(1 section of the Judiciary Act. This was changed by the Act of March 3d, 1803, by which appeals were substi- tuted in place of the writs of error in cases of equity, ad- miralty, and prize ; but the act provides " that the appeals shall be subject to the same rules, regulations, and restric- tions as are prescribed in law in cases of writs of error." In Owings d al. v. Andrew Kincannon, the appeal was dismissed because all the parties to the decree below had not joined in it. Chief Justice Marshall, in delivering the opinion of the court, referred to the case of Williams v. The Bank of the United States, which was a writ of error, where it was held that all the defendants must join, and applied the same rule to the case of an appeal. He cited the Act of 1803, and observed that "the language of the act which gives the appeal appears to us to require that it should be prosecuted by the same parties who would have been necessary in a writ of error." But the case of Francis O. J. Smith v. Joseph W. Clark, is more direct to the point before us. It was a motion to docket and dismiss in the case of an ap- peal, under the 43d rule of the court. The certificate of the clerk, upon which it was founded, described the parties as in the title above. Chief Justice Taney, in giving the opinion of the court, stated that the certificate conformed to the rule in all respects but one, and that was in the statement of the parties. The respondents were stated to be Joseph W. Clarke and others, from which it appeared that there were other respondents, parties to the suit, who were not named in the certificate. He then referred to the case of a writ of error, where it was held that all the parties must be named in the writ, and the name of one or more of them and others were not a suf- ficient description ; and, also, to the case of Holliday et al. v. Baston et al., where the same principle was applied to a writ of error docketed under the 43d rule, and observed the 230 CASES SUMMARILY same reason for requiring all the parties whose interests were to be affected by the judgment to be named in the writ of error, applied with equal force to the case of an appeal from a decree. And the motion to docket and dis- miss for the above defect was overruled. The opinion of the court in the present case is, that no distinction in respect to the question before us can be made between the case of an appeal under the Act of 1803, and of a writ of error ; and that the decisions referred to, di- recting the dismissal of the latter from the docket for want of jurisdiction, apply with equal force to the former. This result disposes of the motions on the part of the appellant to amend the petition of appeal, citation, and bond, and also the motion to amend the libel. Motion to dismiss granted. Mr. Justice Swayne and Mr. Justice Bradly dissented. MiLLEE V. McKenzie, 10 Wall. 582. Parties — Writ of Error. A writ of error brought in the names of persons specified "and others'' is fatally defective. Motion to dismiss granted. Opinion. — It appears, from an inspection of the record, that the writ of error is defective in respect to the parties. It is therein recited that the proceedings are between Pitzer Miller and Larkin McKenzie and others. This defect has been held so many times in this court as fatal to its jurisdic- tion that it need be but mentioned to require a dismissal of the case. Motion granted. DISPOSED OF ON MOTION. 231 Pennsylvania v. Quicksilvee Company, 10 Wall. 553. Jtjkisdiction — Oeiginai, or this Cotjkt. A State may sue in this court a citizen of another State, but not one of her own citizens. To sue a corporation, there must be a distinct averment that the corporation was created by the law of a given State. Motion to dismiss granted. Opinion. — By the second section of the third article of the Constitution, it is ordained that the judicial power shall extend " to all controversies between a State and the citizens of another State." The second clause of this section pro- vides " that in all cases affecting ambassadors, etc., and those in which a State shall be a party, the Supreme Court shall have original jurisdiction. ... In all other cases before mentioned, it shall have appellate jurisdiction," This second clause distributes the jurisdiction conferred upon the Supreme Court in the previous one into original and appellate jurisdiction, but does not profess to confer any. The thirteenth section of the Judiciary Act, which pro- vides for the jurisdiction of this court, accords with this con- struction. A State, therefore, may bring a suit, by virtue of its orig- inal jurisdiction, against a citizen of another State, but not against one of her own. And the question in this case is, whether it is sufficiently disclosed in the declaration that this suit is brought against a citizen of California. And this turns upon another question, and that is, whether the aver- ment there imports that the defendant is a corporation cre- ated by the laws of that State ; for, unless it is, it does not partake of the character of a citizen within the meaning of the cases on this subject. The court is of opinion that this averment is insufficient 232 CASES SUMMAKILY to establish that the defendant is a California corporation. It may mean that the defendant is a corporation doing business in that State by its agent, but not that it had been incorporated by the laws of the State. It would have been very easy to have made the fact clear by averment, and, being a jurisdictional fact, it should not have been left in doubt. Indeed, it was admitted in the argument that the defendant was a Pennsylvania corporation, and the jurisdic- tion sought to be sustained by a suit against this agency. We have already shown that this is unavailable to support the jurisdiction. Motion granted, and the Writ dismissed. Blitz v. Beown, 7 Wall. 693. Practicij — Tbanscript — ^Wbit of Ereob. Statement. — A transcript was filed in this court accom- panied by a blank form of certificate of authentication with- out proper seal or signature. A motion to dismiss was filed on behalf of the defendant in error. Plaintiff in error moved for leave to withdraw the record for the purpose of perfecting the certificate and return- ing the record to its place on the docket. Opinion. — The filing of such a paper as has been filed in this case is not the filing of the transcript at the next term after the issuing of the writ of error, without which we can have no jurisdiction of the case. The motion to dismiss must be allowed. So much of the motion made in behalf of the plaintiff in error as asks leave to withdraw the record is granted, but the residue of the motion must be denied. The case can be brought here only by a new writ of error. DISPOSED OP ON MOTION. 233 Palmer v. Donnee, 7 Wall. 641. Citation. A citation signed by a district judge, in a case from the Supreme Court of a State, is insufficient. Motion to dismiss granted. Opinion. — The revisory jurisdiction of this court over the judgments of State tribunals is defined by the twenty- fifth section of the Judiciary Act of 1789. It is there pro- vided that the citation must be signed by the chief justice, or judge, or chancellor of the court rendering or passing the judgment or decree complained of, or by a justice of the Supreme Court of the United States. But the citation in the case before us was signed by a district judge. This was without authority of law, and the citation was, therefore, without effect. The case therefore is not properly in this court, and the writ of error must be Dismissed. German v. United States, 5 Wall. 825. AppEAii — Transcript. In appeal cases from the U. S. District Court for Southern California, the transcript must he filed in this court within the first sixty days of the term. Motion to dismiss granted. Opinion. — The appeal in this case was allowed on the 26th October, 1864, and the record was filed here on the 21st August, 1865. This was too late. The record should have been brought and filed within the first sixty days of the next term of this court. This was not done, nor was the record returned within the term. The appeal, therefore, must be Dismissed. 234 CASES SUMMARILY Alviso v. United States, 5 "Wall. 824. CiTATIOir. A citation, unless waived, is indispensable to jurisdiction on appeal. Motion to dismiss granted. Opinion. — ^The final decree in the District Court was ren dered on the 8th September, 1863, and an appeal was allowed, on motion of the claimant, on the 18th November, 1863. Upon this appeal no action was taken by the appellants. On the 23d February, 1864, an appeal was again allowed, and the record was brought to this court and filed November 11th, 1864. This was in time, but no citation was issued to the adverse party, and there is nothing to show any waiver ; and a cita- tion, with due return, or waiver by general appearance or otherwise, is indispensable to jurisdiction on appeal. The writ, therefore, must be Dismissed. Gaeeison v. Cass County, 5 Wall. 823. AppEAii — ^Practice — CnATioif. Where an appeal is prayed and allowed nunc pro tunc four years after the date of the decree, the appeal is dismissed for want of jurisdiction, the record not being brought up in time, and there being no citation nor waiver of one. Motion to dismiss granted. Opinion. — The decree in this case was rendered on the 13th June, 1861. No appeal was prayed or allowed until the June Term, 1865. At that term, on motion.of the de- fendants below, an appeal was allowed nunc pro tunc, as of 13th June, 1861. There is nothing in the record which warranted the making DISPOSED OF ON MOTION. 235 of this order ; nor, if it could have been lawfully made, would it avail the defendant, for there was no citation to the appel- lees, and the record was not brought up at the next term of this court. At most it can only be regarded as an allowance of an appeal at the June Term, 1865, and no citation appears to have been issued since to the appellees, nor was there any equivalent notice, nor has there been any waiver. The appeal must therefore be Dismissed for want of jurisdiction. Jones v. La Vallette, 5 Wall. 579. Appeal — Weit of Erkob. An appeal is dismissed where the case should have been brought up by writ of error. . Motion to dismiss granted. Opinion. — The Judiciary Act of 1789 gave appellate ju- risdiction to this court by writ of error, and it was held that under that act no cause could be brought here by appeal. The Act of 1803 gave appellate jurisdiction by appeal " from final judgments and decrees in cases of equity, of ad- miralty and maritime jurisdiction, and of prize or no prize." No other cases can be brought here in this mode, and the case in the record is of neither class. It must come here, if at all, upon writ of error. The appeal must therefore be Dismissed for want of jurisdiction. 236 CASES SUMMAEILY Beobst d al. V. Beobst, 4 Wall. 2, Divided Cotjbt. On a certificate of division, the question being one of fact, tills court is without jurisdiction, and will remand the case without answer. Statement. — The controversy involves a question of fraud concerning the title to land. On motion. Opinion. — The question is one of fact and can only be determined by an examination of the evidence in the record ; and it has been repeatedly determined that only questions of law upon distinct points in a cause can be brought to this court by certificate. An order must be made, therefore, remanding this cause to the Circuit Court, without answer to the question certified, for want of jurisdiction. Cleveland v. Chambeelain, 1 Black, 419. Affidavits — Moot Question. "Where the appellee purchases the interest of the appellant and carries on the controversy for the purpose of obtaining the opinion of this court to the injury of third parties, the appeal will be dismissed. The fact may be shown by affidavits and other extrinsic evidence. Such a proceeding is reprehensible and a punishable contempt of court. Motion to dismiss granted. Opinion. — This appeal must be dismissed. Selah Cham- berlain is, in fact, both appellant and appellee. By the inter- vention of a friend he has purchased the debt demanded by Cleveland in his bill, and now carries on a pretended contro- versy by counsel, chosen and paid by himself, and on a record selected by them, for the evident purpose of obtaining a de- cision injurious to the rights and interests of third parties. There is no material diiference between this case and that DISPOSED OF ON MOTION, 237 of Lord V. Veazie, 8 How. 257, when the whole proceeding was justly rebuked by the court as "in contempt of the court, and highly reprehensible." That case originated in a collusion between the parties. In this case the appellee, who was a judgment creditor of the La Crosse and Milwaukee Railroad, filed his bill to set aside a fraudulent conveyance of the debtor's property made to the appellant, and other fraudulent conveyances of their lands made to certain directors of the company, who were also made parties respondent. The case was prosecuted with vigor by the complainant till a decree was obtained, on the 11th of February, 1859, setting aside the various assignments and the case "committed to a master to ascertain and report the an- nual income of the several lots described in the bill," etc. This was not a final decree. Nevertheless, an appeal was permitted to be entered by Chamberlain on the 12th of Feb- ruary, 1859. But the record was not brought up to this court for a year and a half, nor so long as there were parties litigant who had adverse interests. About a month after the decree was entered Chamberlain became the equitable owner of Cleveland's judgment, and the "dominus litis," on both sides. He then agreed to pay counsel who appeared for Cleveland, the appellee, but, for anything that appears, with- out the knowledge of the counsel, who in July, 1860, entered a discontinuance as to the parties, against whom a decree had not been entered. It is plain that this is no adversary proceeding, no contro- versy between the appellant and the nominal appellee. It differs from the case just cited in this alone, that there, both parties colluded to get up an agreed case for the opinion of this court ; here, Chamberlain becomes the sole party in in- terest on both sides, makes up a record, and has a case made to suit himself, in order that he may obtain an opinion of this court affecting the rights and interests of persons not parties to the pretended controversy. 238 CASES SUMMARILY We repeat, therefore, what was said by the court in that case, "Any attempt, by a mere colorable dispute, to obtain the opinion of the court upon a question of law, which a party desires to know for his own interest or his own pur- poses, when there is no real and substantial controversy be- tween those who appear as adverse parties to the suit, is an abuse which courts of justice have always reprehended and treated as a punishable contempt of court." It is but proper to say, that the counsel who have been employed in the case are entirely acquitted of any participa- tion in the purposes of the party. This case came on to be argued on the transcript of the record from the Circuit Court of the United States for the District of Wisconsin ; and it appearing to the court here, from affidavits and other evidence filed in this case in behalf of persons not parties to this suit, that this appeal is not conducted by parties having adverse interests, but for the purpose of obtaining a decision of this court to affect the interests of persons not parties, it is therefore now here ordered and adjudged by this court, that the appeal in this case be, and the same is hereby, dismissed, with costs. Ballance v. Forsyth et al, 21 H. 389. Appeal — ^Eecobd — Leave to Withdraw — "Consent or Parties CANNOT Give Jurisdiction." Motion to reinstate denied. Opinion. — This case was dismissed on the 20th of Decem- ber last, because it did not appear that an appeal had been taken in the District Court. A motion has now been made to reinstate the case, and, in support of the motion, a written agreement, signed by the counsel for the appellant and ap- pellee, has been filed, consenting to reinstate the case, to waive all irregularities, and to try the case on the merits. DISPOSED OF ON MOTION. 239 But the consent of parties cannot give jurisdiction to this court where the law does not give it. And without an ap- peal taken in the District Court, this court has no jurisdic- tion, and the consent of parties cannot cure the defect. The motion is therefore overruled. But if the plaintiff in error desires to supply the omission, and take an appeal in the District Court, and bring his case legally before us, he has leave, in order to save expense, to withdraw the transcript now filed, and to use it upon his ap- peal, leaving a receipt for it with the clerk of this court. Carter v. Bennett, 15 II. 354. Citizenship — Plea. A defendant in a State court should raise the question of his citizenship in that court by plea. Motion to dismiss granted. Opinion. — This case comes before us upon a writ of error directed to the Supreme Court of the State of Florida ; and a motion has been made to dismiss it for want of jurisdic- tion. The suit was brought by Bennett, the defendant in error, against Carter, the plaintiff in error, in December, 1842, while Florida was yet a Territory, and was continued from term to term until she was admitted into the Union as a State. The action was trover for certain property. The declaration was in the usual form, and the defendant pleaded the general issue of not guilty. After Florida became a State and the Territorial court, in which the suit was pend- ing, ceased to exist, the papers were transmitted by the clerk to the Circuit Court of the State for the same county. The plaintiff and defendant both appeared in the Circuit Court, and the case was continued until December, 1848, when the parties proceeded to trial, and the jury found for the de- fendant in error; and assessed his damages at nineteen thou- 240 CASES SUMMAEILY sand nine hundred and ninety-nine dollars and sixty-six cents. Several exceptions were taken to the ruling of the court on the trial, which it is not necessary to mention, be- cause they relate, to the laws of the State, over which this court can exercise no jurisdiction upon this writ of error. After the verdict was rendered against him, the plaintiff in error moved for a new trial. But the motion was overruled by the court. He thereupon offered to prove that be was a citizen of Georgia at the time the suit was instituted in the Territorial court, and had continued to be so, and still was a citizen of that State. And this fact being admitted by the opposite party, he moved in arrest of judgment, and that the case be dismissed from the court with an order to the clerk to transfer the papers to the District Court of the United States for the Northern District of Florida, or hold the papers and proceedings subject to an order of transfer or demand from the said court. This motion was refused, and judgment entered on the verdict. Whereupon he appealed to the Supreme Court of the State; and the judgment of the Circuit Court being there affirmed, he has brought the case before this court by writ of error. In support of this writ, the plaintiff in error contends, that as he was a citizen of Georgia at the time the suit was brought in the Territorial court, and also when the act of Congress of February 22d, 1847, was passed, the suit was by operation of law transferred to the District Court of the United States for the Northern District of Florida, and that the Circuit Court of the State had no right to take possession of the papers in the case, nor any authority to try and decide it ; and that, by moving in arrest of judgment upon this ground, he had claimed a right under a law of the United States ; and that as the decision was against the right claimed he is entitled to a writ of error under the twenty-fifth section of the Act of 1789. Upon this motion to dismiss the writ DISPOSED OF OK MOTION. 241 of error, the construction of the act of Congress of 1847 is not before us. In this stage of the case we are not called on to decide whether this act of Congress did or did not, proprie vigore, transfer the case to the District Court of the United States. The only question presented by the motion is whether, upon the record before us, we have a right to re- verse the judgment of the State court. And in order to give this court jurisdiction over the judgment of the State court, it must appear by the record that the right now claimed by the plaintiff in error, to remove the case to the District Court of the United States, was so drawn in question in the State court that it must have been decided in the judgment it has given. Now, there is nothing in the pleadings to show that Carter was a citizen of Georgia. It is not so stated in the declara- tion or plea. And when the papers were transmitted to the State court, he appeared there, and defended himself upon the plea of the general issue, which he had put in in the Ter- ritorial court. This plea admitted the jurisdiction of the court, and the case was tried and the verdict rendered upon these pleadings. And upon a motion in arrest of judgment, the court cannot look beyond the record ; and the judgment cannot be arrested, unless there is some error in law or defect in jurisdiction apparent in the proceedings. And here there was no error or defect of jurisdiction apparent on the record, even if the construction of the Act of 1847, contended for by the plaintiff in error, is the true one. Both parties by their pleadings admitted the jurisdiction of the court, and there was no averment in any part of them that Carter was a citizen of Georgia. And after a verdict is rendered the judgment cannot be arrested by the introduc- tion of new evidence on a new fact. It may, in a proper case, lay the foundation of a motion for a new trial, but not in arrest of judgment. It is evident, therefore, that the State court, in proceeding to give judgment on the verdict, could 16 242 CASES SDMMAEILY not legally have decided upon the validity of the plaintiff's objection to its jurisdiction. They could not hear evidence iu that stage of the case to prove that Carter was a citizen of Georgia, nor judicially notice it when admitted by the op- posite party. And we are bound to presume that they pro- ceeded to judgment on this ground, and did not consider the right claimed by the plaintiff in error as properly before them. In an action in a Circuit Court of the United States, where the jurisdiction depends upon the citizenship of the parties, it has always been held, that where the plaintiff avers in his declaration that he and the defendant are citizens of different States, if the defendant means to deny the fact and the juris- diction, he must plead it in abatement ; and if he omits to plead it iu abatement, and pleads in bar to the action, he cannot avail himself of the objection at the trial. Still less could he be permitted to do so upon a motion in arrest of judgment. And the same principles which this court sanction in such cases in the courts of the United States, upon questions of juris- diction, depending upon personal privilege, we are bound to apply to the proceeding in the State court. Undoubtedly, it was in the power of the plaintiff in error, when he appeared to the suit in the Circuit Court of the State, to have pleaded to the jurisdiction, upon the ground that he was a citizen of Georgia. Whether such a plea could have been maintained or not, it is not necessary for us to say. But it would have brought before the court the construction of the Act of 1847, and it must have been judicially decided. And if the decision had been against the right he claimed under it, this court would have had jurisdiction to hear and determine that question. But upon the record, as it comes before us, it does not appear that this question was ever pre- sented to the State court in a manner that would enable it judicially to notice or decide it. And the writ of error must, therefore, be dismissed for want of jurisdiction. DISPOSED OF ON MOTION. 243 Gage v. Pumpelly, 108 U. S. 164. Affidavit — Amount — Pkepondeeakce of Kvidence. Evidence appearing in the record sustaining jurisdiction, and aiSdavits both in favor of, and against, jurisdiction, the preponderance of evidence against jurisdiction being insufficient, a motion to dismiss is overruled. Motion to dismiss denied. Opinion. — Many of the ai3Bdavits sent up with the tran- script state distinctly that the value of the property, which is the matter in dispute, exceeds five thousand dollars. When an appeal has been allowed, after a contest as to the value of the matter in dispute, and there is evidence in the record which sustains our jurisdiction, the appeal will not be dismissed simply because upon examination of all the affidavits we may be of the opinion that possibly the esti- mates acted upon below were too high. There is no such decided preponderance of the evidence in this case against jurisdiction as to make it our duty to dismiss the appeal which has been allowed. Motion denied. INDEX. ACT OF CONGEESS. when a construction is required, 25. title under, 55. decision recognizing, and not denying, a title under, 71. ADMIEALTY. jurisdiction of United States courts in, in personam, 18. what the record must show, 72. decree in, fixing no sum to which party entitled, not final, 114. appeal in, effect of, 1 14. amount involved in suit in, 145, 164, 166. cannot be increased by amendment, 166. ADVEESE POSSESSION, 45, 47. AFFIDAVITS. jurisdictional amount may be shown by, 13. when insufficiency of amount, shown by, 140. when not received, 173. when received, 180. purchase by appellee of the interest of the appellant shown by, 236. asserting, and denying, sufficiency of amount, 243. AFFIEM. (See Motion to Dismiss ob AFrisM.) AGGREGATE, where several amounts are involved. (See Amotott.) AGEEEMENT between States, 68. AMEND, election not to, 110. (See Amendments.) AMENDMENTS. of writs of error allowed by statute in certain cases, 19, 213. of writ of error not allowed, where the questions involved rest on established precedents, 213. cannot be made to afiect jurisdictional amount, 166. as to names of parties, 19, 213. AMOUNT. when sufficient to give jurisdiction, counterKilaim, 124, 130. where several parties unite in one suit, 145. salvage awarded collectively, 153. 245 246 rsTDEX. AMOUNT (Omtinued). when not su£5cient to give jurisdiction, counter-claim, 124^ 130, 155. remittitur, 126. trespass, in action of, 129. when plaintiif helow appeals, 130. when defendant below appeals, 130. affidavits, amount shown by, 13, 140, 180, 243. several interests joined in one suit, 142, 145, 156. party appealing, interest of, 143. (See Pabty.) interest of party in partition suit, 143. taxes assessed against individuals, 150. another suit pending, effect of, 152. where the rule of liability by which the appellee is charged, would, if correct, increase the amount, 152. involving a contingency, 155. interest and costs cannot be included to make amount sufficient, 158. where a portion of the judgment only was disputed, 158. where jurisdictional amount has been increased by legislation, 159. money value, property in dispute must have, 140, 162. personal freedom, 162. on reversal by circuit court, 164. duties overpaid, 164. amendment, to effect, 166. difference between verdict and claim, 169. represented by different interests, 11, 156. sufficient, hut writ taken for delay only, 13. where tax levied for parties jointly, 99. counter-claims affecting amount involved, 124, 155. criterion in action of trespass concerning land, 129. cross-appeals, 130. aggregate of series of claims joined in one suit, 142. another suit pending involving similar accounts, 152. depending upon a contingency, 155. a portion only of the judgment having been disputed, 158. in appeal by libelant from judgment of reversal in Circuit Court, 164. cannot be increased by amendments to give jurisdiction, 166. sufficiency of, asserted and denied by affidavit, 243. "AND OTHEES,"230. ANSWEK. leave to, on sustaining demurrer, 102. election to rely upon defense contained in, 110. APPEAL. in what name taken, 19. name of partnership, 19. INDEX. 247 APPEAL {Oontmued). dismissed on motion in advance of the term appealed to, 113, 145. in admiralty suit, 114, 164. amount involved when taken by plaintiff below, 130, 156. amount involved when taken by defendant below, 130, 153. amount involved in case of reversal by Circuit Court, when libelant is appellant, 164. from Supreme Court of the District of Columbia, 177. when case should have been brought up by writ of error, 191. not necessarily avoided by defective bond, 200, proceedings involving question of contempt, 200. notice of, 201. decree entered in exact accordance with mandate, 211. taken too late, 216. Circuit Court proceeding under its supervisory jurisdiction, 219. from action of Circuit Court refusing to take jurisdiction, 219. taken out of term, 222, 234. writ of error and, in same case, 223. the judgment discharging a rule, 224. where two appeals are taken, 226. defect in title of parties, when fatal to, 228. filing of transcript, 233. allowance of, nunc pro tunc, 234. writ of error dismissed when the proceeding should have been by appeal, 235. agreement to reinstate, after dismissal, 238. where none taken from District to Circuit Court, 238. APPEAL BOND. (See Bond.) ASSIGNMENT of errors, failure to return with writ, 2, 12. BANKRUPTCY. evidence of discharge in, after decree, 48. order rejecting claim, 189. jurisdiction of the Supreme Court, 189. Eupervisory jurisdiction of Circuit Courts, 220. BOND. tender and acceptance after motion to dismiss, 1. sureties bound each, severally, for specified part, 6. form and approval of, 6. ^ defects in, 6. when none required for prosecution of suit, 173. when required, 173. leave granted to file, 173, 212. supersedeas, 177. 248 INDEX. BOND (Continved). informal, will not necessarily avoid an appeal, 200. will be vacated when fraudulently procured, 203. when it will not dispense with a citation, 211. by whom to be approved, 212. BKIEF. effect of filing, as a waiver, 113. notice of motion to be accompanied by, 113 CERTAINTY of description in writ of error, 6. CERTIFICATE of clerk, 10. that Federal question is involved, 78. (See Fedeeal Question.) of division, when questions of fact only are involved, 236. CITATION. when not required, 173, 211. by whom signed, 177. waiver of, 201. leave granted to serve, 201, 222. when appeal bond will not dispense with, 211. leave to serve, discretionary, 222. appeal being taken out of term, 222. by whom to be served, 233. indispensable to jurisdiction, unless waived, 234. CITIZENSHIP, question of, how raised, 239. CLERK. certificate of, 10. Teste of, 116. COLLECTOR of taxes, 99, 150. of customs, suit against to recover duties overpaid, 164. COLOR of right to a dismissal must appear, on motion to dismiss or affirm, 1, 12, 13, 14. want of, on motion, 12. COMMERCIAL law, 46. COMMITMENT for contempt, 194, 200. COMMON law rules, decision based upon, 71. COMMON PLEAS, judgment of Court of, 60, 110. COMPENSATION for property, 17. COMPROMISE pending suit, 180. CONFEDERATE authorities, loss by fire, occasioned by order of, 26. notes, 67. INDEX. 249 CONFLICT of laws, 69. of State laws with United States Constitution must appear in rec- ord, 78. CONSENT cannot give jurisdiction, 238. CONSTEUCTION of acts of Congress, 25, 93. of State statutes, 36. CONTEMPT of court, 194, 200, 236. prosecution of an appeal after purchase by the appellee of appellant's interest, is, 236. a)NTINGENCY, amount depending upon, 155. CONTEACT, void on general principles of law, 64. COEPOEATION, State creating, must be distinctly averred, 231. COSTS and interest cannot be added to make jurisdictional amount, 158. COUNTEE-CLAIM affecting jurisdictional amount, 124, 130, 155. CEEDITOE'S bill, value of interests in, 142, 145. CEOSS-APPEALS, amount involved in, 130. CUSTOMS, collector of, suit against, to recover duties overpaid, 164. DAMAGES, illegal imprisonment, 45. DECISION of State court construing State law must have been in favor of the validity of the law, 78. Federal question must be necessarily involved in the, 78. purport of, final, but record shows, not final, 116. DECEEE in foreclosure suit, 104. declaring ownership and referring cause to auditor, 104. to be final must terminate the litigation, 104, 106. setting aside one sale and ordering another is not final, 109. correction of errors in, 189. final. (See Finai, Decree for purposes of jurisdiction.) DEDICATION, defense under, against a claim based upon a landpateut, 93. DELAY, writ of error sued out for, 6. DEMUEEEE, judgment for plaintiff on, with leave to withdraw, and an- swer, 102. DISCEETIONAEY OEDEE, affirmance of, 116. DISMISS. a motion to, and affirm, may be united, 1, 14. (See Motion to Dismiss or Affirm.) Dill dismissed for want of jurisdiction, 59. court may, of its own motion, 207. 250 INDEX. DISTINCT JUDGMENTS, joinder of, 11. DIVEKTING WATER-COURSE, 23. DIVISION, certificate of, when questions of fact only are involved, 236. DOCKET, dismissal for failure to, 101, 207. DOCKETING CA.USE,- effect of, 1. DUTIES, overpaid, 164. EJECTMENT, land granted by Federal law, the parties relying uiioii other questions, 47. ELECTION, to rely upon defense made in the answer, 110. EMINENT DOMAIN, 17. ERROR. (See Wbit op Error.) ERRORS. in decrees, px)rrection of, 189. alleged in punishing for contempt, 200. assignment of, 2, 12. ESTOPPEL, decision resting on where Federal question is raised, 29. EVIDENCE, 10. concerning value of land in dispute, 82. (See Affidavit.) dehors the record, on motion to dismiss, 180. (See Affidavit.) preponderance of, as to value, 243. EXCEPTION. to overruling of petition for removal, 58. to rulings in trials of issues of fact, 121, EXECUTION of order made below, pending proceedings, 184. EXEMPLIFICATION of record, 10. Fact, questions of, in certificate of division, 236. FACTS, may be shown by aflSdavit. (See Affidavit.) FEDERAL QUESTION. decision being according to prior rulings, 13, 18, 21, 22, 23. suit involving compensation for private property appropriated, 17. laws and form of government of the States prior to the Rebellion, recognized, 21. involving consideration of riparian rights ; diverting waterKiourse. etc., 23. rights asserted under acts of Congress which must be construed, 25. loss by fire occasioned by orders of the Confederate authorities, 26. estoppel, 29. construing State statutes, their constitutionality being unques- tioned, 36. must be so raised that court below can see that such question is necessarily involved, 37. not sufficient that such question is raised by petition for rehearing, 37. INDEX. 251 FEDERAL QUESTION (Continued). where raised, but not, and need not have been, decided, 39. must be raised by party in interest, 40. must appear affirmatively, 44. may appear by implication, 44. must be shown by the record to be necessary to the determination of the case, 44. illegal sentence by a judge, 45. commercial law, 46. ejectment from land granted by Congress, 47. discharge in bankruptcy after decree, 48. not sufficient that Federal question was raised, 51. must have been decided or necessarily involved, 51. must appear in the record, 53. not sufficient that it appears in petition for writ of error, 53. title under act of Congress, 55. petition for removal after final judgment, 58. dismissal of bill for want of jurisdiction, 59. contract void on general principles of law, 64 decision on questions of public policy, 64. Federal and non-Federal questions raised, the latter, supporting the judgment, 65. jurisprudence of a State set forth in the State Constitution, 67. Confederate notes, 67. agreement between States, assented to by Congress, 68. unconstitutionality of State law asserted, defendant claiming nothing thereunder, 68. when Federal question is not sufficiently specific, 69. Territorial law held valid by State court, 69. partition, 69. decision recognizing, and not denying, title under an act of Con- gress, 71. common law rules, decision based upon, 71. question whether of admiralty cognizance raised here when not de- cided below, 72. question of validity of State law argued but not involved in de- cision, 72. that the point raised was decided adversely, need not appear by express averment, 72. must have been raised, and decided adversely to plaintifl' in error, 72. that such question might have been raised, not sufficient, 72. in a suit to seize and sell under a mortgage, 74. in a certificate dehors the record, 74, 78. 252 INDEX. FEDEEAL QUESTION {Ckmlitmed). where jurisdiction below was not questioned, 74. in decision in favor of validity of land patents, 75. fictitious names, 75. jurisdictional, involved with other, questions, 76. where State court refused to take jurisdiction, a land patent being involved, 76. must have been necessarily involved, 78. must appear in pleadings, evidence, instructions asked for, or excep- tions to rulings, 78. conflict of State law with U. S. Constitution, 78. decision of State court must have been 'in favor of validity of State law, 78. mineral lands, 80. plea of license |rom a State or the United States, 80. statement in writ of error that a Federal question is involved is not sufficient, 82. construction of State laws, 84. power of trustee under State law, 85. trust established by contract, 88. Federal and State laws involved, the latter only decided, 91. question under claim of dedication, 93. treaty, 93. claim of judgment creditor of prior lien over the United States, under State laws, 97. when not sufficiently specific, 69. held a, where rights are asserted under acts of Congress which re- quire construction, 25 where a proceeding was under authority of the United States, 60. held, not involved, where the lessee of property on a river sued a city for diverting the water-course to his injury, 23. where, in suit to quiet title claimed by both parties under acts of Congress, the decision rested upon matter of estoppel, 29. where the decision rested on the construction of statutes, for issuing county bonds, the constitutionality of the statutes being unques- tioned, 36. where the decision was based upon a charter granted by a State, 37. where the city of New Orleans sought to enjoin a collection of a judgment to enforce an assessment under the laws of Louisi- ana, 39. where judgment was rendered for want of sufficient affidavit of de- fense, 44. where decision was as to adverse possession of lands for statutory period, 45, 47. INDEX. 253 FEDEEAL QUESTION (Continued). where suit is for damages against a judge for illegal sentence, 45. where decision was as to effect of leaving notice of protest at former residence of an indorser, who went to reside within the Confed- eracy, 46. in suit to set aside a sale alleged to be in fraud of creditors, 48. where objection was made to entering a decree ordered in a man- date, for the reason that the judge issuing it held his office under unconstitutional law, 51. where the objection of want of revenue stamps on a note was pleaded, but at the trial that question was not presented or decided, 53. in suit concerning a land warrant, the decision resting upon question as to what amounts to a trust, 59. where bill sought to annul a sale, an act of Congress being in- volved, but the bill was dismissed for want of jurisdiction, 62. where decision rested upon questions of public policy, 64. where decision is according to the jurisprudence of a State, though declared in the State Constitution, 67. where an agreement between two States was the basis of the de- cision, 68. where State court held valid a Territorial law, 69. where the parties claim imder the Federal government, but the de- cision does not involve a construction of a Federal law, 71. where land patents are involved, but the court below refused to take jurisdiction, 76. where local statutes concerning the issuance of bonds were in- volved, 78. question of possession of land for purpose of taking out minerals, 80. question of admissibility of evidence as to value, 82. question of ownership of lands, and adverse possession, 82. State law construed under State Constitution, 84. question of power of a trustee appointed under a State statute, 85. whether land acquired under a Federal statute is chargeable with a trust created by contract, 88. question concerning the redemption from tax sale, under State laws, of land, 91. claim of land under a dedication, 93. a conflict of claims to priority of lien between private parties and the U. S. tmder State laws, 97. FICTITIOUS name, 75. FINAL HEAEING, removal to United States court after, 2^. (See Final Judgments and Dbcbees.) FINAL DECREE. in a foreclosure suit, 104. 254 INDEX. FINAL DECREE {OmUin'ued.) in proceedings for partition, 106. where one sale is set aside and another ordered, 109. where an injunction is dissolved, 113. in an admiralty cause, 114. in a suit for infringing a patent, 123. (See FruAi Judgments anb Deckees.) FINAL JUDGMENTS AND DECREES. upon an intervening petition, 2. on petition for removal after final hearing, 23, 58. judgment of reversal, and ordering another, 98, 108, 110. on issuing writ of mandamus, 99. on failure to file transcript and docket cause, 101. on demurrer, leave to amend, 102. must terminate the litigation, 104, 106. where reference is made to an auditor, 104. in a partition suit, 106. setting aside a sale and ordering another, 109. must be of highest court, etc., 110. when of Court of Common Pleas, 60, 110. on election not to amend, 110. remanding and refusing to hear and decide, 112. dissolving injunction, 113. motion in advance of term appealed to, 113. parties to motion to dismiss, 113. decree in admiraltv, 114. effect of appeal in admiralty suit, 114. affirmance of discretionary order, 116. form of judgment, 116. on a motion for a new trial, 116. on exceptions to ruling in trials of issues of fact certified for trial by jury, 121. in suit for infringement of a patent, 225. (See Fenai Decbee.) FORECLOSURE suit, decree in, 104. FRAUD, supersedeas vacated when procured by, 203 FREEDOM, suit involving personal, 162. (See Money Valtte.) FRIVOLOUS question, 6, 13, 22. HIGHEST COURT OF A STATE, 60, 110. INFERIOR court, when writ of error will be issued to inferior State court, 60, 110, 186. INFRINGEMENT of letters-patent, 123. INDEX. 255 INJUNCTION. appeal from decree dissolving, 113. granted and reference to a master in a suit for infringement, 123. INSURANCE, loss occasioned by orders of Confederate authorities, 26. INTEEEST. whose, involved, 55. of party moving to dismiss, value of, 130. amount of, of party appealing, 143. and costs cannot be added to make a jurisdictional amount 158. INTERLOCUTORY order, 113, 196, 200. (See Final Judgments and Decbees.) ISSUES of fact, exceptions to rulings in trials of, 121. JOINT judgment, in case of, all must unite in writ of error, 225. JUDGMENT, form of, purporting to be final, 116. (See Final Judg- ments AND Decrees.) joint, who must unite in writ of error, 225. JURISDICTION, 13. that a Federal question appears in a petition for rehearing is not sufficient to give, 37. dismissal of bill for want of, raises no Federal question, 59, 76. when Federal question not suflBciently specific, 69. of inferior court not questioned in that court, 74. question of, involved with other questions, 76. the fact that the rule of liability by which the appellee is charged would, if correct, increase the liability, does not give, 152. of orders and decrees in bankruptcy, 189. original, of this court, 231. citation indispensable to, unless waived, 234. consent cannot give, 238. (See the various titles.) LAND. evidence of value of, 82. (See Amount. Affidavits.) trust concerning, acquired under a Federal statute, 88. LAWS of the United States, 25, 93. LIBELANT, appeal by, from judgment of reversal in Circuit Court, 164. LICENSE, plea of, raising a question of fact, 80. LIEN, conflict between judgment creditor and United States under State laws, 97. LIMITATIONS. Statutes of, 45, 47. time for removing causes, 186, 193. alike in writs to State and Federal courts, 197. how affected by the War of the Rebellion, 227. 256 INDEX. MANDAMUS, order awarding writ, 99. MANDATE to Court of Common Pleas, 110. proceedings subsequent to, may be reviewed, 211. a decree entered in exact accordance with, cannot be reviewed, 211. MONEY, matter in dispute must have a value in, 140, 162. MOOT QUESTION, 184. where appellee purchases appellant's interest, 236. MOETGAGE. unacknowledged effect of recording, 19. suit to seize and sell under, 74. MOTION. in advance of the term appealed to, 113, 168. for a new trial overruled, 116, 216. to amend the supersedeas, 169. to reinstate case after dismissal, 171, 238. to set aside a judgment of reversal, and dismiss the case, 173. MOTION TO AFFIRM. (See Motion to Dismiss ob Apfibm.) MOTION TO DISMISS OK AFFIRM. color of right to a dismissal, must appear, or a motion to affirm will be denied, 1, 12, 13, 14. bond, 1, 6. docketing cause, 1. assignment of errors, 2, 12. service of writ of error, 2. final judgment, 2. (See FmAi, Judgment.) names of parties, 2. .... frivolous questions, 6, 13, 22. writ sued out for delay, 6. correction of defects in writ, 6. exemplification of record, 10. evidence, 10. practice certifying records, 10. clerk's certificate, 10. amount, 11, 13. (See Amotjst.) joinder of distinct judgments, 11. jurisdiction. (See Amoitnt, Pbderai, Question, Final Judg- ments AND Decrees, Jurisdiction, Practice, Writ of Error.) decision being axxiording to precedents, 13, 18, 21, 22, 23. Federal question, 17, 21. (See Federal Question.) affidavits, on motions, 13. (See Affidavit.) when motion to affirm may be united with a motion to dismiss, 1, 12,13,14. (See Color.) INDEX. 257 MOTION TO DISMISS OE AFFIEM (Continued.). eminent domain, 17. riparian rights, 17. compensation for property appropriated, 17. jurisdiction in admiralty cases, 18. amendments, allowed, and not allowed, 19, 213. appeals, 19, (See Appeal.) name of partnership in appeals, 19. effect of recording unacknowledged mortgage, 19. laws of States prior to Kebellion, recognized, 21. removal to United States court not granted after final hearing or trial, 23. NAME, amendment concerning. (See Amendments. Wmt of Ebror.) of party, 2. mistake in, 173. fictitious, 75. NEGLIGENCE, in prosecuting appeal, 130. NEW TRIAL, motion for, overruled, 116, 216. NOTICE OF PROTEST, 46. motion, waiver of, 113. appeal, 201. NON-FEDEEAL QUESTION. decision below being based on, when Federal question was raised, 29. and Federal, involved, grounds existing to support the judgment on the former, 65. NUNC PRO TUNC, order allowing appeal, 234. OPINION, is no part of the record, 65. examined to find basis of judgment below, 44. OEDEE. overruling motion for new trial, 116. interlocutory, 196. OEIGINAL JUEISDICTION OP THIS COUET, 231. OEPHANS' COUET OF THE DI8TEICT OF COLUMBIA, issues of fact certified from, 121. OWNEESHIP, decree determining, and referring cause to ascertain amount, 104. PARTIES. names of, 2, 75, 173. to motion to dismiss, 113. 17 258 rNDEX. PARTIES (Continued.) amendment of writ of error to include necessary, 213. defects in title of when fatal, 228. specified by name, and others, 230. PAETY. (See Parties.) in interest, Federal question must be raised by, 40. claiming title, 55. appealing, amount of interest of, 143, 145, 150, 153, 156. PARTITION. Territorial law, held vaUd, 69. (See FederaIi QtrESTioN.) suit, decree in, 106. amount involved in suit for, 143. PARTNERSHIP, name of, in appeals, 19. PATENT. infringement of, 123. for land, decision in favor of validity of, 75. suit under. State court refusing to take jurisdiction, 76. claim under a, the defense being based upon a dedication, 93. suit to restrain use of, 200. PLEA, questions of citizenship must be raised by, 239. PRACTICE. certifying records, 10. neglect to file transcript, 101. motion signed by attorney for a party in interest, 113. a motion to dismiss in advance of the term appealed to, 113, 168. cross appeals, 130. when writ directed to inferior court, 60, 110, 186. a case improvidently dismissed, reinstated, 171. when proceeding by appeal and when by writ of error, 191. filing transcript, 101, 207, 234. rehearing, 216, appeal and writ of error in one case, 223. judgment discharging a rule, 224. in joint judgment, who unite in writ of error, 225. two appeals in one case, 226. withdrawing transcript to perfect the certificate, 232. withdrawing transcript to appeal in court below, 238. appeal taken too late, 234. PRECEDENTS, judgment pursuant to, will be affirmed on motion, 13, 18, 21, 23. PREPONDERANCE, of evidence, by affidavit, 243. PROCEDURE, law of, 60. PROTEST, notice of, 46. PUBLIC POLICY, 64. INDEX. 'S59 QUIA TIMET, 143. BEBELLION. laws and form of government of States prior to, when recog- nized, 21. war of, as affecting limitations, 227. when the war of, began and ended, 228. EECOBD. must show the Federal question raised to be necessary to the deter- mination of the case, 44. not sufficient that a Federal question was raised in, 51. Federal question must appear in, 53. opinion no part of, 65. facts out of, certified to the court, are not considered, 74, 78. when voluminous, motion to dismiss reserved until the final hear- ing, 76. EECOED. need not in terms state a misconstruction of an act of Congress, 97. (See TBANScaEOPT.) EEFUSAL of Circuit Court to decide, 112. EEHEAEING, that a Federal question appears in a petition for, will not give jurisdiction, 37. EEDTSTATE, the court will, where improvidently dismissed, 171, 238. EELATOES, where jointly interested, 99. EEMANDING. for further proceedings, 108. to State court and refusing to hear and decide the cause, 112. EEMITTITUE of part of amount of judgment, 126. EEMOVAL from State to United States court, 10. judgment dismissing a petition for, after final hearing, affirmed on motion, 23. petition for, after final hearing, not granted, 58. EETDEN DAY, of writ of error, motion to dismiss in advance of, 168. EIPAEIAN EIGHTS, 17, 23. SALE set aside and another ordered, 109. SALVAGE, awarded collectively, amount of, 153. SET-OFF. (See Counter-claim.) SEVEEAL interests, joinder of, in one suit, 142. STATE, highest court, 60, 110. STATE COUETS. jurisdiction of, 62. Constitution, law of State construed under, 84. 260 INDEX, STATE COURTS (Continued.) jurisprudence of, set forth in State Constitution, decision based on, does not raise a Federal question, 67. law of, where its constitutionality is not questioned, 36. asserted to be unconstitutional, the defendant claiming no- thing thereunder, 68. whether void, question raised but not decided, 72. charge of disregarding, 78. construing, as to power of a trustee, 85. and Federal law being involved, the former only being de- cided, 91. judgment lien under, the United States claiming adversely, 97. power of, to bring suit, 231 . STATES, agreement between, 68. STATUTES OF LIMITATION, 45, 47. how affected by War of Rebellion, 227. time for removing causes, 186, 193. ' time for removing, alike in writs to State and Federal courts, 193. SUPERSEDEAS. modification of, on motion, 169. vacated, when, 203. bond, form of, 177. SUPERVISORY jurisdiction of Circuit Courts, 219, 220. SUPREME COURT, original jurisdiction, 231. TAX, aggregate of, 99, 150. TERM. motion in advance of, 113, 168. appeal taken out of, 222. TERRITORY, law of, held valid by State court, 69. TESTE, of writ of error, 116. TITLE. party claiming under act of Congress, must claim in his own right, 55. confirmed by act of Congress, 71. TRANSCRIPT. dismissal on failure to file, 101, 207, 234. omissions in, supplied, 203. withdrawal of, to perfect certificate, 232. withdrawal of, to use on appeal from District to Circuit Court, 238. when to be filed in certain cases, 233. INDEX. 261 TRANSCEIPT (Oontinued.) no appeal having been taken from the District to Circuit Court, 238. TREATY, 93. TRESPASS, criterion of jurisdictional amount, in action of, 129. TRIVIAL question. (See Motion to Dismiss ok Affirm.) TRUST. what amounts to a, is not a Federal question, 59. established by contract, concerning land acquired under a Federal statute, 88. TRUSTEE, power of, depending upon construction of State statute, 85. UNITED STATES. claim under authority of, 80, conflict between claims of, and a judgment lien under State laws, 97. VALUE, of land, when not a criterion of jurisdictional amount, 129. matter in dispute must have a money, 140, 162. (See Amount.) , VERDICT, amount of, reduced by remittitur, 126. VOLUMINOUS record, question raised on motion, reserved until final hearing, when, 76. WAIVER. of notice, 113. of citation, 201, 234. of irregularities, 238. WAR of the Rebellion. period of beginning and ending, 227. effect upon limitations, 227. WATER-COURSES, diverting, 23. WRIT OF ASSISTANCE, 196. WRIT OF ERROR. service of copy of, 2. form of, 6. sued out for delay, 6. (See Motion to Dismiss or Affirm.) correction of defects in, 6, 19, 213. statement in, that a Federal question is involved, does not give jurisdiction, 82. motion to dismiss in advance of the return day of, 113, 168. teste of, 116. amount involved when brought by plaintiff below, 130. amount involved when brought by defendant below, 130. 262 INDEX. WEIT OF EEKOE (ConHntLed.) to what court directed, 186. limitation of time for bringing, 186, 193. in cause involving contempt, 200. amendment of, to include necessary parties, 213. and appeal in tlie same case, 223. when proper on judgment discharging a rule, 224. judgment against parties jointly, who must unite in, 225. when defect in title of parties, is fatal, 228, 230. specifying parties by name and others, 230. when new one required, 232. dismissed when proceeding should have been by appeal, 235.