Blair v. Miller. 4 D.

THIS was a writ of error to the circuit court of Georgia The defendant in error demanded one third of a tract of land as her dower. The defendant having pleaded several special pleas in bar, they were demurred to by the demandant, and judgment was rendered on the demurrer, in her favor.

* For the plaintiff in error, it was admitted, in answer to [ 21 ] an objection, that the value of the matter in dispute did not appear upon the record; but it was urged that from the nature of the subject, the demand of the plaintiff could not ascertain it, nor from the nature of the suit (like a case of ejectment, where the damages are only given for the ouster,) could it be fixed by the finding of a jury on the judgment of the court. 3 Bl. Comm. 35, 36. As, therefore, there was no act of congress, nor any rule of the court, prescribing a mode to ascertain, in such cases, the value in dispute, that the party may have the benefit of a writ of error, it was proposed to continue the cause, to afford an opportunity to satisfy the court, by affidavits, of the actual value of the property.

BY THE COURT. Be it so. Let the value of the matter in dispute be ascertained by affidavits, to be taken on ten days' notice to the demandant, or her counsel in Georgia. But, consequently, the writ of error is not to be a supersedeas.

Ingersoll and Dallas, for the plaintiff in error.

E. Tilghman, for the defendant in error.

4 D. 22.

BLAIR et al., Plaintiffs in Error, v. MILLER et al.

4 D. 21.

WRIT of error from the circuit court of Virginia. The judgment was rendered in the circuit court on the 28th of May, 1799, and a writ of error issued returnable to August term, 1799; but the record was not transmitted, nor the writ returned into the office of the clerk of the supreme court, till the 4th of February, 1800. Swift objected to the acceptance and return of the record and writ: And,

BY THE COURT. The writ has become a nullity, because it was

not returned at the proper term. It cannot, of course, be a legal instrument, to bring the record of the circuit court before us for revision.

4 C. 180.

[22] RUTHERFORD et al., Plaintiffs in Error, v. FISHER et al.

4 D. 22.

The 22d section of the Judiciary Act, (1 U. S. Stats. at Large, 84,) authorizes a writ of error only after a final judgment or decree.

ERROR from the circuit court of New Jersey, sitting in equity. It appeared that the defendants in the circuit court had pleaded the statute of limitations to the bill of the complainants; and that the plea was overruled, and the defendants ordered to answer the bill. On this decree the present writ of error was sued out, and Stockton (of New Jersey) moved to quash the writ, because it was not a final decree, upon which alone a writ of error would lie. E. Tilghman, for the plaintiff in error, acknowledged the force of the words "final judgment," in the act of congress; and submitted the case without argument.

CHASE, J. In England a writ of error may be brought upon an interlocutory decree or order; and until a decision is obtained upon the writ, the proceedings of the court below are stayed. But here the words of the act, which allow a writ of error, allow it only in the case of a final judgment.

BY THE COURT. The writ must be quashed, with costs.

11 H. 22; 16 H. 314.

Course v. Stead. 4 D.

BLAINE V. SHIP CHARLES CARTER et al.

4 D. 22.

THIS was an appeal from the circuit court of Virginia; and the preliminary question discussed was, whether such a process could be sustained? After argument,

THE COURT decided, that the removal of suits from the circuit court into the supreme court, must be by writ of error in every case, whatever may be the original nature of the suits.1

COURSE et al. v. STEAD et Ux. et al.

4 D. 22.

A writ of error, tested in the vacation after the last term, is amendable.

The omission of the name of the district in the address of the writ is not material if the indorsement and attestation show the district.

If the value of the matter in dispute does not appear, it may be shown by affidavit.

If a new party and subject-matter are brought before the court by a supplemental bill, it must show that the court has jurisdiction by reason of the citizenship of the parties to that bill.

THIS was a writ of error to the circuit court of the United States for the District of Georgia. An original bill was filed by the executors of a creditor of the firm of Rae & Somerville, against the personal representatives of each partner, both having deceased, to obtain payment of a debt due from the firm. The defendants having admitted that the partnership property of Rae and Somerville was in their possession, a decree requiring them to apply it to the payment of the complainants' debt, had been made, and in aid of this fund, that the lands of each deceased partner should be sold, and the proceeds applied to satisfy the decree. There were also subsequent proceedings in the cause, the result of which was, that there were not sufficient assets to satisfy the complainants' debt. In this state

1 By act of March 3, 1803, appeals were substituted for writs of error, in equity and admiralty cases. 2 U. S. Stats. at Large, 244.

Course v. Stead. 4 D.

of the original suit, a supplemental bill was filed against Elizabeth Course, executrix of Daniel Course, stating that she held lands which belonged to Rae, and which ought to be administered as part of his assets. The result of this bill was a decree which subjected these ands to the payment of the complainants' debt, and this writ of error was prosecuted to reverse this decree.

[ *25 ]

I. Ingersoll, for the defendants in error, objected, that the writ of error was not tested as of the last day of the last term of the supreme court; nor, indeed, of that term at all; for the court had risen before the day of its teste.

Dallas observed, in answer, that there was no rule, either legisla tive, or judicial, prescribing the date of the teste of a writ of error; that in Georgia it might not be practicable, in many cases, to know the last day of the term of the supreme court, whose session was not limited; that if the writ is issued, in fact, after the preceding term, and returned, sedente-curia, to the present term, it is regular; and that it is not like the case of a term intervening, between the teste of a writ of error, and the delivery of the record to the clerk of the court.

BY THE COURT. The objection is not sufficient to quash the writ of error. The teste may be amended by our own record of the duration of the last term; and it is, of course, amendable.

II. Ingersoll objected, that the writ of error was not directed to any circuit court; for, its address was "To the judges of the circuit court, holden in and for the district aforesaid:" whereas no district was previously named.

Dallas, in reply, observed, that the district of Georgia was indorsed on the writ, that the attestation of the record was in Georgia, and that the record returned was from the circuit court of the Georgia district.

BY THE COURT. The omission is merely clerical. We wish, indeed, that more attention were paid to the transcribing of records; but there is enough, in the present case, to amend by; and, therefore, let the omission be supplied.

IIL Ingersoll objected, that the value of the matter in dispute does not appear upon the record to be sufficient to sustain a writ of error. The land, which is the immediate subject of the supplemental bill,

Priestman v. The United States. 4 D.

was sold for 1287. 19s. and 4d., and that is the only criterion of its value exhibited to the court.

Dallas. The value of the property in dispute must be its actual value, for the purposes of jurisdiction. The price at a forced sale, for taxes, many years ago, cannot rationally be taken for the actual value of the land, with its meliorations. The court will, therefore, permit the plaintiff in error to ascertain the fact by affidavits, on notice to the opposite party. It was so done in Williamson v. Kincaid. *BY THE COURT. Let the rule be entered on the same [ 26 ] terms as in the case of Williamson v. Kincaid.

These preliminary objections to the writ being obviated, and the depositions being returned, to prove the value of the land, which was sufficient to sustain the writ of error, Dallas argued for a reversal of the decree of the circuit court on two grounds: 1st. On the merits; and, 2d., On the want of a description of the parties, so as to give a federal jurisdiction.

* BY THE COURT. Having examined the record in the [ 27 ] case of Bingham v. Cabot, (3 D. 382,) we are satisfied, that

the decision there, must govern upon the present occasion. It is therefore unnecessary to form or to deliver any opinion upon the merits of the cause. Let the decree of the circuit court be reversed. 4 D. 21; 5 C. 13; 2 H. 9, 29.

PRIESTMAN, Plaintiff in Error, v. THE UNITED STATES.

4 D. 28.

Under the 19th section of the act of February 18th, 1793, (1 Stats. at Large, 313,) goods are liable to forfeiture though they did not belong to the master, owner, or any mariner of the vessel in which they were imported, and though the duties were paid on them at the port of entry.

THIS was a writ of error to the circuit court of the United States for the district of Pennsylvania. The record showed that an information was filed by the district attorney against sundry watches