VOL. 2.

Printed

argument allowed in S. C.

Printed brief or abstract required in 8. C.

of the ensuing term, the party moving for such order, if defendant in error, shall be entitled to have the writ of error, or appeal, dismissed; and if the party so moving shall be plaintiff in error, he shall be entitled to open the record, and on hearing have the same reversed, if it be erroneous. Provided, however, that a copy of every such order shall be printed in some newspaper, at the seat of government, in which the laws of the United States shall be printed by authority, three successive weeks, at least sixty days before the beginning of the term of the Supreme Court next ensuing (a)."

A rule of the Supreme Court, reciting that it had been represented to the court that it would, in many cases, accommodate counsel, and save expense to parties, to submit causes upon printed arguments, provides that this may be done in all cases at the option of counsel on either or both sides(¿); and by a subsequent rule it is declared, that "When a printed argument shall be filed for one or both parties, the case shall stand on the same footing as if there were an appearance by counsel(c)."

No cause is allowed to be brought to argument in the Supreme Court, until the parties shall have furnished the court with a printed brief, or abstract of the cause, containing the substance of all the material pleadings, facts and documents on which the parties rely, and the points of law and fact intended to be presented at the argument(d): and

only two counsel for each party is permitted to CHAP. 19.

argue.

APPEALS FROM A DISTRICT COURT TO A CIRCUIT COURT.

Only two counsel for ench party allowed to

argue.

to

Whether the

are

provisions of the Judici

In entering upon the consideration of appeals the circuit courts from the district courts, we met at the threshold by an important question, which it is necessary briefly to examine.

According to the construction which has been given to the act of March 2, 1803, ch. 20, as we have seen, appeals to the Supreme Court are in all respects placed upon substantially the same footing as writs of error; Congress, in giving the remedy by appeal, having seen fit to subject it to the same rules, regulations and restrictions" as had previously been prescribed with respect to writs of error. And the question is, whether this is not also equally the case with respect to appeals from the district courts to the circuit courts? Judging from the language of the act of 1803, and that of the Supreme Court in the case of The Don Pedro, I should have felt little hesitation in giving an affirmative answer to this question. I can discern in the act no evidence of any intention to make a distinction between the two cases in this respect: there is no intimation in the opinion of the Supreme Court, delivered by Mr. Justice WASHINGTON, that any such distinction was supposed to exist; and I know of no reason why it should have been deemed expedient to make such a distinction. The language of the act, on the contrary, appears to me to indicate the opposite intention.

arg Actrela

tive to writs

of

error are

applicable to appeals from district court.

VOL. 2.

The section in question, with the exception of the repealing clause with which it concludes, consists of a single sentence. It gives an appeal from the district courts to the circuit courts, and an appeal from the latter to the Supreme Court; and then, dropping the singular form of expression, it adds, that "such appeals shall be subject to the same rules," etc. But in a case before Mr. Justice STORY, he seems to have considered this provision as applicable only to appeals from the circuit courts to the Supreme Court. The case was this: A decree had been made by the District Court for the District of Massachusetts, in favor of a mariner, for wages. No appeal was taken before the adjournment of the court; "but three days afterwards, the respondent claimed an appeal in the clerk's office," which "the district judge refused to allow, upon the ground that the party was bound to appeal before the final adjournment of the court, or within such other period as the court should upon his application prescribe." The respondent thereupon addressed a petition to the circuit court for relief. Mr. Justice STORY dismissed the petition, on the grounds, 1, that "the Judiciary Act of 1789, ch. 20, has provided no mode as to appeals from the decrees of the district courts to the circuit courts, confining the appeal only to the next circuit court;" and, 2, that in the District Court for the Massachusetts district," the uniform course, from the earliest period, has been to make the appeal in open court, apud acta, before the adjournment of the court;" which course of practice, he observed, was equivalent to a rule of the court, and must be considered as

directory to all parties, unless, upon application to CHAP. 12. the court, further time was granted (a).

up

It is true, as observed by Mr. Justice STORY, that the Judiciary Act prescribes no forms of procedure as to appeals. The part of the act to which he must be understood as alluding, is the twenty-first section, by which an appeal is given to the next circuit court, in admiralty causes involving an amount exceeding three hundred dollars, and which is silent with respect to the mode of instituting the appeal; but this section, although not repealed in express terms, is wholly superseded by the act of 1803, which takes the subject of appeals de novo, and gives an appeal when the value of the matter in dispute exceeds fifty dollars, instead of three hundred dollars. According to the construction which this act has received, its language was ill-chosen; for, instead of limiting the right of appeal to admiralty causes, it declares that an appeal shall lie "from all final judgments or decrees in any of the district courts of the United States, where the matter in dispute," etc. But no doubt has ever been entertained that it was intended to embrace suits in admiralty; and, in a very elaborate and able judgment pronounced by Mr. Justice STORY, at an early date, and which has ever since been acquiesced in, it was held to be limited to this description of causes. If, in the case of Norton v. Rich, the attention of the learned judge had been directed to the act of 1803; and if, by any course of reasoning upon it satisfactory to his own mind,

(a) Norton v. Rich, 3 Mason's R., 443.

VOL. 2.

he had arrived at the conclusion to which he came, I should hesitate to question its soundness. But the act does not appear, by the report, to have been present to his thoughts at all; or, if it was, he seems to have assumed that it had no relevancy to the question before him. This assumption may perhaps be accounted for from the fact stated by him, that from the earliest period, it had been the uniform practice in the District Court for the Massachusetts district to interpose appeals apud acta, before the adjournment of the court, and that this had continued to be the practice in that court, to thetime of his decision (in 1812), notwithstanding the act of 1803. In the English admiralty, as he shows by references to CLERKE and BROWNE, appeals are made either sedente curia, in open court, viva voce, when they are said to be apud acta-among the acts of the court or within ten days after the decree, before a notary. The latter mode, he observed, had never been in use in America, and had, moreover, at an early period, been expressly declared to be inadmissible by the Supreme Court. Under these circumstances it was nearly a matter of course that the former mode should be adopted before the passage of the act of 1803, while the right of appeal depended wholly upon the 21st section of the act of 1789, which, as we have seen, merely gave an appeal, without prescribing any mode of procedure. The practice thus naturally adopted from the English court of admiralty continued of course to prevail, and became firmly established, during the fourteen years which intervened between the dates of the