The Ship Independence. to cases brought here by writ of error. And it is true that, by the original judiciary act of 1789, decrees in chancery and admiralty, as well as judgments at common law, in the circuit courts, were removable to this court by writ of error, and were not made removable in any other manner. And if that provision in the act of 1789 was still in force, and the rule unrepealed, the appellee would be entitled to the interest he claims, to be calculated under the twentieth rule, to the day of the affirmance of the decree. But the writ of error, from its form, and the principles which govern it, is peculiarly appropriate to judgments at common law, and is inconvenient and embarrassing when used as process [*259] to remove decrees in chancery and admiralty to a *superior court. The ordinary and uniform mode of removing such decrees to the appellate and revising court, wherever such jurisdictions have been established, has been by appeal, with the single exception of this act of congress. And, in order to remove the inconvenience and embarrassment which this provision, in the act of 1789, created, it was repealed by the act of March 2, 1803, and the ordinary mode of appeal substituted in the place of the writ of error. And as this case came up by appeal, the rules of this court referred to in the argument do not apply to it. Nor indeed were they intended to apply to chancery of admiralty decrees. They were adopted at February term, 1853, and that term continued until the 2d of March. It was on that day that the act of congress changing the provision in the act of 1789 was approved by the President. And it appears by the minutes of the court that the rules in question were adopted on the same day, that is, March 2d. This act of congress had therefore, undoubtedly, passed both houses of congress before these rules were adopted, and it is evident that they were carefully framed with reference to this change in the law, so as to exclude from their operation admiralty and chancery appeals. It may be proper to add, that the eighteenth and twentieth rules are no longer in force, even in common-law cases. They have been superseded and annulled by the sixty-second rule, adopted in 1851. By this last-mentioned rule, judgments at common law and decrees in chancery, upon affirmance in this court, carry interest until paid; and the interest is to be calculated according to the rate of interest allowed in the State in which the judgment or decree of the court below was given. The object in changing the rule in this respect was to place the suitors in the courts of the United States upon the same footing with the suitors in the State courts in like cases. For the interest allowed in the several States differs, and in many of Hemmenway v. Fisher. them it is higher than six per cent., and in most if not all of them a judgment or decree in a court of the State carries interest until it is paid. Cases in admiralty, however, are not embraced in the sixty-second rule. It applies to cases of law and equity only. And, indeed, cases in admiralty could not have been justly included. For there could be no reason for giving one rate of interest where a case of collision or salvage was in the first instance tried and decided in Louisiana, and another rate of interest where it was tried and decided in New York, or in any other State where the interest allowed by the State laws was different. * Moreover, in cases of collision and salvage, and more [* 260 ] especially in the latter, it is impossible to fix the sum that ought to be awarded with absolute certainty by any rule of calculation. It must depend mainly upon estimates, and the opinions of persons acquainted with the subject; and, acting upon mere estimates and opinions, different minds unavoidably come to different conclusions as to the amount proper to be allowed. And it will sometimes happen in an admiralty case, that this court will think that the damages estimated and allowed in the circuit court are too high, and yet the opinion here may approximate so nearly to that of the court below, that this court would not feel justified in reversing its judgment. Besides, new testimony may be taken here, in an admiralty case, and a new aspect given to it. No rule, therefore, fixing any certain rate of interest upon decrees in admiralty, whenever the decree is affirmed, could be adopted with justice to the parties. And a discretionary power is reserved, to add to the damages awarded by the court below, further damages by way of interest, in cases where, in the opinion of this court, the appellee, upon the proofs, is justly entitled to such additional damages. But this allowance of interest is not an incident to the affirmance affixed to it by law or by a rule of court. If given by this court, it must be in the exercise of its discretionary power, and, pro tanto, is a new judgment. In the case before us, no new judgment could be given in this court, because, upon the question of affirming or reversing the decree of the circuit court, the justices of this court were equally divided; and the judgment was affirmed by operation of law, which from necessity affirms the judgment of the inferior tribunal when the judges of the appellate court are equally divided. Upon such an affirmance, the appellee was entitled to the full benefit of the decree of the circuit court, but nothing more. The court, being equally divided, could not change the decree of the circuit court, The United States v. De Pacheco. nor exercise its discretionary power to allow interest on the decree; for this would have been a new decree. And those justices who were of opinion that the decree of the circuit court ought to be reversed because the damages were too high, were of course opposed to making it still higher by the addition of interest. The motion to amend the decree and mandate, and give interest on the amount awarded by the circuit court, must therefore be overruled. THE UNITED STATES, Appellant, v. JUANA S. DE PACHECO. 20 H. 261. LIMITATION ON APPEAL-DISMISSAL OF APPEAL: ITS EFFECT. 1. Where an act of congress allows an appeal in a special class of cases, but fixes no time within which it shall be taken, the general limit of five years applies. 2. Where an appeal is docketed and dismissed because the record is not filed in due time, under the rules of this court, a new appeal may be taken at any time within the period of the limitation prescribed for appeals by act of congress. 3. The only effect of the dismissal is to enable the court below to proceed to execute its decree as though no appeal had been taken. APPEAL from the district court of California. The case is stated in the opinion. Mr. Crittenden and Mr. Blair, for the motion. [ * 262 ] *Mr. Chief Justice TANEY delivered the opinion of the court. A motion has been made to docket and dismiss this case. It appears, by a certified copy of the record in the district court of the United States for the northern district of California, that a decree was passed by that court on the 22d of September, 1856, confirming the title of Pacheco to certain lands therein mentioned. No appeal was taken by the United States at the term at which the decree was made, but an appeal was entered at the next succeeding term, in March, 1857. Pacheco by his counsel now moves to docket and dismiss the case, upon two grounds: 1st. Because the appeal was not taken at the term at which the decree was rendered; and, 2d. If the appeal might legally be taken at the succeeding term, yet no transcript of the record was filed here within the first six days of the present term of this court. The first question raised by the motion depends upon the construction of the act of congress of March 3, 1851, which authorizes The United States v. De Pacheco. an appeal to this court in cases of this description. The act gives the right in general terms to the party against whom the judgment is rendered; and does not limit the time within which the appeal shall be made; nor refer to any particular act of congress by which the time shall be regulated. It must therefore be governed by the judiciary acts of 1789 and 1803, which regulate writs of error and appeals to this court from inferior tribunals. And by these acts the party may take his appeal at any time within five years after the passing of the decree by the inferior court. The appeal in question was therefore made in time; and this motion cannot be maintained on that ground. *The second reason assigned in support of the motion [* 263 ] depends upon the sixty-third rule of this court. Under this rule, the appellee in a case from California is entitled to have the case docketed and dismissed, if the transcript of the record is not filed in this court within the first six days of the term next ensuing such appeal; provided the decree of the court below was rendered sixty days before the commencement of the said term of this court. As we have already said, the decree was rendered in September, 1856, and the appeal taken in March, 1857. Consequently it was the duty of the appellant in this case to file a transcript of the . record within the first six days of the present term. This was not done. And it appears that no transcript of the record has yet been filed by the appellant. The appellee is therefore entitled to have the case docketed and dismissed under the rules above mentioned. It is true he has not filed the certificate mentioned in the rule, but has filed a full transcript of the record. But the transcript shows all of the facts which the clerk by the rule is required to certify; and it has always been held by the court to be equivalent to the certificate which the rule prescribes. It is proper, however, to add, in order to prevent mistake on this subject, that the only effect of docketing and dismissing a case under this rule, is to enable the party to proceed to execute his judgment in the court below. It removes the bar to further proceedings in that court, which the appeal created, and does nothing more. And after the case has been docketed and dismissed, the party against whom the decree was rendered, may still, at any time within five years from the date of the decree, take a new appeal in the inferior court; and if he files the transcript of the record in this court within the first six days of the term next ensuing his appeal, the appeal will be valid, and the case as fully before this court, for examination and revision, as if it had been brought here Spencer v. Lapsley. at the first term. The act of congress authorizes the appeal at any time within five years, and the period allowed by law cannot be shortened by any rule or practice of a court. Nor was it intended to be diminished by the rules in question. And when an appeal is taken in the court below, if the appellee desires a speedy and final decision of the controversy, it is in his power to bring the case up to the next succeeding term of this court. Indeed, it sometimes happens, under this rule, that the court permits the transcript of the record to be filed by the appellant, and the case docketed for argument, at the same term at which it had pre viously been docketed and dismissed on the motion of the [* 264] appellee. And where the appellant satisfies the court that the omission to file the transcript within the first six days was not owing to any fault or negligence on his part, the court has always allowed him to file it at the same term, and docket the appeal for trial, without putting him to the expense and delay of another appeal. It follows, from what we have said, that although the case before us must be docketed and dismissed, yet this will not prevent the United States from filing a transcript at the present term, and docketing the case for argument, if they can show that the delay has not arisen from any fault or negligence on their part. And if they fail to do so, they may yet take another appeal at any time within five years, and bring here the decree of the district court for examination and revision. And if the appellee, after the case is docketed and dismissed, proceeds upon the decree of the district court, and obtains a patent for the land, his title will still be subject to the decision of this court, if the government shall hereafter bring up the case within the time limited by law. We have deemed it proper on this occasion to enter into this full explanation of the rule of court referred to, on account of the multitude of appeals which must unavoidably come up from the district courts of California, and which, in some shape or other, may be brought before this court, upon motions to dismiss. | 20h 264 L-ed 902 381 576 ELIPHAS SPENCER, Plaintiff in Error, v. JOHN W. 20 H.264. LAPSLEY. CHANGE OF VENUE-PLEADINGS-TEXAS LAND LAWS. may, not 1. The judge of a district court interested in a cause pending before him |