JTRISDIC- required. writ of error be an infant, feme covert, non compos mentis, or APPELLATE imprisoned, then within five years as aforesaid, exclusive of the time of such disability. And every justice, or judge, and security signing a citation on any writ of error as aforesaid, shall take good and sufficient security, that the plaintiff in error shall prosecute his writ to effect, and answer all damages and costs, if he fail to make his plea good."77 ses to be a of execution. "A writ of error, as aforesaid, shall be a supersedeas and In what castay execution, in cases only where the writ of error is served, supersedeas by a copy thereof being lodged for the adverse party, in the clerk's office, where the record remains, within ten days, Sundays exclusive, after rendering the judgment or passing the decree complained of. Until the expiration of which term of ten days, executions shall not issue, in any case where a writ of error may be a supersedeas; and where, upon such Costs on afwrit of error, the supreme or a circuit court shall affirm a judgment or decree, they shall adjudge or decree to the respondent in error, just damages for his delay, and single or double costs at their discretion."'78 firmance. case of re "When a judgment or decree shall be reversed in a circuit Pr visions in court, such court shall proceed to render such judgment, or versal. pass such decree, as the district court should have rendered or passed; and the supreme court shall do the same on reversals therein, except where the reversal is in favour of the plaintiff or petitioner in the original suit, and the damages to be assessed, or matter to be decreed, are uncertain: in which case, they shall remand the cause for final decision. And the supreme court shall not issue execution in causes that are removed before them by writs of error; but shall send a special mandate to the circuit court, to award execution thereupon."79 Doubts having arisen, under the twenty-second section, as Extent of seto the extent of the security to be required on signing the quired, de curity re clared. APPELLATE citation on a writ of error, congress passed an explanatory act, JURISDIC TION. Writs to the circuit court may issue from the circuit court. Amount ne cessary to give the court jurisdiction. Decisions. declaring that "the security to be required and taken, on the signing of a citation on any writ of error, which shall not be a supersedeas and stay execution, shall be only to such an amount as, in the opinion of the justice or judge taking the same, shall be sufficient to answer all such costs as, upon an affirmance of the judgment or decree, may be adjudged or decreed to the respondent in error."80 The process act of 1792,81 contains the following provision, allowing writs of error returnable in the supreme court, to issue from the circuit court: "It shall be the duty of the clerk of the supreme court of the United States, forthwith, to transmit to the clerks of the several circuit courts, the form of a writ of error, to be approved by any two of the judges of the supreme court; and it shall be lawful for the clerks of the said circuit courts, to issue writs of error agreeably to such forms, as nearly as the case may admit, under the seal of the said circuit courts, returnable to the supreme court, in the same manner as the clerk of the supreme court may issue such writs, in pursuance of the act, entitled "An act to establish the judicial courts of the United States." In order to give the supreme court jurisdiction, the matter in dispute must exceed two thousand dollars, exclusive of costs. In an action in a circuit court, on a bond for the penalty of sixty thousand pounds, the jury having rendered a verdict for the plaintiff's debt, with this qualification, that it should be discharged on the payment of eighteen hundred dollars and the costs, and a judgment having been rendered accordingly, on error upon the judgment, it was held, that by matter in dispute, was meant the matter in dispute when the action was instituted; and that the thing demanded, or 80 Act of Dec. 12, 1794. Ls. U. 81 May 8. Ls. U. S. 260. s. 9. JURISDIC- penalty of the bond, and not the thing found, constituted the APPELLATE matter in dispute. The court, however, declared that this rule was not meant to be applied to every case; but that the nature of the case must guide the judgment of the court; that where the law gives no rule, the demand of the plaintiff must furnish one; but that where the law gives the rule, the legal cause of action, and not the plaintiff's demand, must be regarded.82 But in a case where the penalty of the bond was twenty thousand dollars, but the breach assigned was the non-payment of only three hundred and twenty-eight dollars, the court held the latter to be the matter in dispute.83 In an action of dower, where the matter in dispute did not appear upon the record, the court ordered the same to be ascertained by affidavits to be taken on ten days notice to the opposite party, the writ of error not to operate as a supersedeas.84 In an action of trover, where judgment had been rendered below for the defendants, it was contended that the court must be satisfied by evidence, other than the declaration, of the matter in dispute; but the court said, that that rule applied only to cases where the property itself, and not damages, was the matter in dispute, such as actions of detinue, &c.; and observed further, that if the judgment below be for the plaintiff, that judgment ascertains the matter in dispute ; but that where the judgment below was rendered for the defendant, the court had not, by any rule or practice, fixed the mode of ascertaining that value.85 In an action of replevin it was held that as in that action the damages were merely nominal, if the writ were issued as a means of trying the title to property, it was in the nature of detinue, and the value of the article replevied was the matter in dispute ; but that if the replevin was of goods distrained for 33 Dall. Rep. 401. 83 4 Cranch. Rep. 316. VOL. 1. 42 84 4 Dall. Rep. 20. and see rule of 15 Aug. 1800. APPELLATE rent, the amount for which avowry was made was the matter JURISDIC TION. Error only lies upon a in dispute.86 And in another case in replevin, where the replevin bond was in the penal sum of twelve hundred dollars only, it was contended that this was conclusive evidence as to the matter in dispute, but the court allowed the plaintiff in error time to show by affidavits its real value.87 Where error was brought upon a peremptory mandamus to admit one to office, the court held that the salary was the value of the office and matter in dispute, and they allowed it to be shown by affidavits, at the same time deciding that it was a case in which error would lie.89 88 A writ of error, by the provisions of the judiciary act, will final judg only lie upon the final judgment of the court below;90 nor will ment and for errors in law. Error will not lie to the it lie for any error in fact, and therefore where the judgment is upon the issue of nul tiel record, a writ of error will not lie, as such issue, although triable by the court, is an issue of fact.91 If a judgment is final, so that execution could issue upon it, and the defendant be thus injured by it, he is entitled to a writ of error, notwithstanding it may be defective.92 Where a cause has been removed from a district court to the circuit court circuit court by writ of error, error will not lie to the supreme in cases car ried there from the dis- court upon the judgment of the circuit court; as the judiciary trict courts, &c. act of 1789, which alone regulates the subject, provides for such writs, in cases at common law, only in suits brought in the circuit court by original process, or removed there from the state courts.93 36 9 Wheat. Rep. 527. 875 Cranch. Rep. 287. and as to amount, see ante "circuit court." 88 7 Wheat. Rep. 534. 91 2 Mason. Rep. 28. and see 3 Dall. Rep. 54. 92 3 Dall. Rep. 404. 937 Cranch. Rep. 108. 287. 2 39 And see 6 Wheat, Rep. 598. Wheat. Rep. 248. 395. 94 JURISDIC- or disallowance of no We have seen that the allowance or disallowance of amend- APPELLATE ments is not ground for error 101 nor will error lie for a refusal of the court below to grant a new trial.o Any defect Allowance appearing upon the record which would have been fatal on amend motion in arrest of judgment, is equally fatal upon a writ of ground of error; and it is not too late to allege it in the court above. 95 For, &c. But as these and the like principles are not peculiar to the courts of the United States, they will not be further considered in this place. ror. er Where a writ of error was tested after the term had expired, Issuing fest the court allowed it to be amended ;96 but where a writ was sued writs of erout of the day it was tested, and a term intervened between the teste and return, the court refused to allow it to be amended ;97 but they allowed it to be done where it was not sued out until after the intervening term.98 Where the writ was returnable of August term, but not returned, nor the record transmitted until the following February, the court said it was a nullity;99 but in a subsequent case the court held, that if the writ was served before the return day and while in full force, but not returned until afterwards, the return would be good, and that although it was not returned of the term when returnable, the appearance of the defendant waived all objection.100 The court in this case said that the service of the writ was the lodging of a copy thereof for the adverse party in the office of the clerk of the court below; and they held such service to be good, although made before the judgment below was signed.1 specting the The security to be taken by the judge signing the citation, Practice re in order to operate as a supersedeas, must be sufficient to se- signing and cure the whole judgment on which the writ is brought; and the citation service of |