heirs, 4 Wheat., 213; Blunt's Lessee v. Smith, 7 Wheat., CHAP.1. 248. Nor a refusal to reinstate a cause on motion after dismissal. Welch v. Mandeville, 7 Cranch, 152. Nor the denial of a motion to compel a party to join in a demurrer to evidence. Young et al. v. Black, 7 Cranch, 565. Nor to reverse a decision upon an application to amend. Walden v. Creig, 9 Wheat., 576; Chiroc v. Reiniher, 11 Wheat., 280; 6 Cranch, 206; 1 Mason, 153. Nor for alleged error in continuing or refusing to continue a cause. Marine Insurance Company of Alexandria v. Hodgson, 6 Cranch, 206; Barrow v. Hill, 13 Howard, 54.1 Nor on a judgment of nonsuit voluntarily submitted to by the plaintiff; but upon a peremptory judgment of nonsuit granted at the instance of the defendant, and against the will of the plaintiff, a writ of error lies; the courts of the United States having no authority to order such a nonsuit. Evans v. Phillips, 4 Wheat., 73; supra, p. 421. And so, upon a judgment awarding a peremptory mandamus. Columbian Insurance Company v. Wheelwright, 7 Wheat., 534. The issue of nul tiel record being an issue of fact, though triable by the court, no writ of error lies to a judgment thereon. 2 Mason, 22. Nor will a writ of error lie merely to review a question of costs. Sizer v. Many, 16 Howard, 98. After a case has been decided by the supreme court on a writ of error and a mandate issued to the court below, if a second writ of error be sued out, it brings up for review nothing but the proceedings subsequent to the mandate. Roberts v. Cooper, 20 Howard, 467. The act of May 31, 1844, ch. 31 (5 Stat. at Large, 658), authorizing a writ of error in revenue cases without regard to the amount in controversy, does not include a suit brought against a collector to recover 'In this latter case ten per cent damages was awarded on the ground that the writ of error was sued out merely for the purpose of delay. PART 5. duties paid under protest; and accordingly, where the judgment was for a sum not exceeding $2,000, the writ of error was dismissed for want of jurisdiction. Mason v. Gamble, 21 Howard, 390. When on appeal or writ of error the cause appears to have been brought before the court by collusion between the parties, in order to obtain a decision for extraneous purposes, it will be dismissed with costs upon the application of third persons whose interests would be affected by the decision. Such proceedings are regarded by the court as contemptuous and highly reprehensible. Lord v. Veazie, 8 Howard, 254; Cleveland v. Chamberlain, 1 Black, 419. A motion for a new trial is not a waiver of the right to bring a writ of error. In some of the circuits there is a rule to that effect, but a compliance with it can in no otherwise be enforced than by requiring the party to waive his right on the record, as the condition on which his motion for a new trial shall be heard. United States v. Hodge, 6 Howard, 279. Want of jurisdiction and irregularity of the writ are the only grounds for dismissal. The court will not entertain a motion to dismiss or quash the writ on the ground that no error appears on the face of the record. That is a question to be determined on the regular final hearing. Hecker v. Fowler, 1 Black, 95. And after a cause has been dismissed on motion for want of jurisdiction, because it did not appear that the value of the property in question exceeded two thousand dollars, a motion to reinstate the cause on affidavits of value, cannot be entertained. Richmond v. The city of Milwaukee et al., 21 Howard, 391. When a writ of error in a suit at common law, has been dismissed because it appeared by the transcript that there was no final judgment in the court below a motion at the next term, to reinstate the cause founded on an amended transcript and the certificate CHAP. 2. of the clerk of the court below showing that the judgment was final, cannot be entertained. The writ of error becomes functus officio, and the decision of the court final at the close of the first term. Rice v. The Minnesota and N. W. RR. Co., 21 Howard, 82. If more than the requisite sum is claimed in the quod damnum, and there is a general verdict for the defendant, the plaintiff may have a writ of error, though the bill of exceptions relates to items of less amount than such requisite sum. The United States v. M'Daniel, 6 Peters, 634.1 CHAPTER II. OF THE FORM OF THE WRIT, WITHIN WHAT TIME IT MUST BE BROUGHT, AND ITS OPERATION AS A SU- the writ. Whence it The writ of error, like all other writs from the Style of courts of the United States, runs in the name of the President. It issues from the appellate court, whether the supreme court or a circuit court. But in order to issues. avoid the inconvenience of obliging suitors throughout the Union to apply to the clerk of the supreme court for the writ, this officer was, by an early act which will be more particularly noticed in the sequel, directed to transmit to the clerks of the several circuit courts, the form of a writ of error from the supreme court, 1A large proportion of the questions decided in the cases cited in the text seem too plain for doubt, and yet many of them, at a large expense to the parties, have had to be decided over and over again, some of them in additional cases not cited. The multiplication of reported decisions seems not to diminish the evil. I would fain hope that by bringing so large a number of adjudications together within a space so limited, I may contribute somewhat to guard my professional brethren against the bewildering illusions that seem so easily to beset them, as soon as they leave the familiar precincts of the state tribunals, and tread the terra incognita of the national courts. PART 5. and these clerks were empowered to seal, sign and issue this writ for use within their respective districts. From them, therefore, the writ is generally if not uniformly obtained. To what court directed. Test and return. Test day. In vacation. In term. Return day. The reader will not require to be told that the writ should ordinarily be directed to the court whose judgment is to be reviewed. But although the appellate jurisdiction of the supreme court over the final judgments and decrees of a state court, is limited to those of the highest court in which a decision could be had, yet, if the record has been remitted by such court to another court, the writ may be directed to the latter, and the record be brought thence. Gelston et al. v. Hoyt, 3 Wheat., 246. The writ, whether issuing from the supreme court or from a circuit court, and to whatever court directed, must be tested in the name of the chief justice, or (if that office be vacant) in the name of the justice next in precedence: but with respect to the test and return days there is no statutable regulation; nor, as to the test day, is there, to my knowledge, any judicial decision establishing any rule more definite than this; that it must be some day in term. When issued in vacation it may I presume, be tested of any day in the last preceding term; but, as the first day is fixed by law and known, it is best to test it on that day: and when issued in term, it ought doubtless to be tested on the first day of that term. With respect, however, to the return day, the supreme court has at length laid down a definite rule to be observed in all cases. It is not in conflict with any express prior decisions of the court, but in the later decisions to which allusion is here made, it is for the In all cases first time declared to be absolute and universal. The day of the rule is this: that on whatever day the writ is issued, it next term. shall be made returnable on the first day of the next the first On the rule. ensuing term. The Insurance Company of the Valley of CHAP. 2. Virginia v. Mordecai, 21 Howard, 195; Porter v. Foley, 21 Howard, 393. In the first of these cases the writ was issued on the 18th of October, 1858, and was made returnable on the second Monday of January, instead of the first Monday of December, then next; and the day specified in the citation for the appearance of the defendant in error was the same. motion in behalf of the defendant in error to dismiss the cause for this reason, the court held the writ void, Reason of and dismissed it for want of jurisdiction; founding its decision upon the process act of May 8, 1792 (1 Stat. at Large, 278), by the 9th section of which the clerk of the supreme court was required to transmit to the clerks of the several circuit courts, for use in their respective districts, the form of a writ of error to be approved by two of the judges of that court, which was accordingly done, and the first day of the term (next ensuing) was made the return day of the writ. The legal return day was held to have been thus fixed under the authority of the act. The reason assigned for the decision, it will be seen, admits of no exceptions to the rule. When the judgment happens to be rendered so shortly before the first day of the term as to render it difficult or impossible to sue out the writ and serve the citation before the return day, it would doubtless be convenient to the party deeming himself aggrieved, to be permitted to make his writ returnable on a later day of the term.' But on the other hand, to say nothing of the legal difficulty supposed to be 'This would be in accordance with the direction given by Judge CURTIS, in his summary directions for suing out writs of error in the appendix to his Digest, and according also to my own prepossessions. The attention of the court was distinctly called to these directions by Mr. Robinson, in opposition to the motion to dismiss the cause; but, as already stated, such an exception would have been inconsistent with the ground on which the decision was placed. |