McCabe v. Worthington. 16 H. in dispute, as they are fully set out in the cases referred to; and especially in the one last mentioned. For, in that case, the parties and the matters in dispute were the same with those now before the court. The counsel for the appellants, however, objects to the decree of dismissal, because it was made at the argument upon the exceptions to the master's report, and is contrary to the opinion on the merits, expressed by the court in its interlocutory order. * 86 ] * But this objection cannot be maintained. The case was [ at final hearing at the argument upon the exceptions; and all of the previous interlocutory orders in relation to the merits were open for revision, and under the control of the court. This court so decided when the former appeal hereinbefore mentioned, was dismissed for want of jurisdiction. And if the court below, upon further reflection or examination, changed its opinion, after passing the order, or found that it was in conflict with the decision of this court, it was its duty to correct the error. The circuit court on this occasion has properly done so, and the decree of dismissal must be affirmed, with costs. EDWARD H. MCCABE, Plaintiff in Error, v. LLOYD D. WORTHINGTON. 16 H. 86. A decree, confirming an inchoate Spanish title, made by this court, on appeal in 1836, upon a petition originally filed in 1824, did not relate back so as to devest a title gained from the United States under an entry made in 1834. This would be inconsistent with the second section of the act of May 24, 1828 (4 Stats. at Large, 298.) THE case is stated in the opinion of the court. Geyer, for the plaintiff. Wells, contrà. CATRON, J., delivered the opinion of the court. This cause comes here by writ of error to the supreme court of Missouri, under the twenty-fifth section of the [96] judiciary act. The error assumed to have been committed below, is that the court misconstrued the act of May 26, 1824,' enabling claimants to lands in Missouri, to institute proceedings to try the validity of their claims. The action being an ejectment, and the defendant in possession by virtue of patents from the United States, the only question is whether the plaintiff has a better legal title. 14 Stats. at Large, 52. McCabe v. Worthington. 16 H. The plaintiff relies on a decree of this court, made in 1836, in favor of Soulard's heirs against the United States, 10 Pet. 100, for 10,000 arpens of land including the premises sued for. The decree is of younger date than the entries of the defendant, which were made in 1834, and are a good title to sustain or defend an ejectment in Missouri. Soulard's claim was filed in the district court, in August, 1824, and a confirmation demanded, but which was refused, and the petition dismissed in 1825; from this decree an appeal was prosecuted, and in 1836, a decree was rendered by this court confirming the claim. And the question here is, whether the decree in the supreme court related back to the date of filing the petition against the United States in the district court. If it did, then the plaintiff is entitled to recover; and if it did not, then the judgment below must be affirmed. The act of March 3, 1807,' declared that all claims to lands should be void unless notice of the claim, &c., should be filed with the recorder of land titles, prior to the first of July, 1808. Soulard's claim was not filed with the recorder, nor was it presented to any tribunal for action on it, till suit was brought in 1824, in the district court. Up to that time, the land claimed was subject to sale. This is admitted: But the argument for the plaintiff is, that the act of 1824 removed the bar, and restored the claim to its original standing as if the act of 1807 had not been passed. Admitting this to be true, still, it proves nothing, as the United States could beyond question have sold this land before 1807, and passed the legal title; and hence the removal of the bar, imposed by that act, left the land equally open to sale at any time after 1807, as it was before that time. The act of February 17, 1818,2 laid off local land districts in Missouri, one of which embraced the land in dispute, and provided for the sale of public lands, from time to time, in each district. But an exception was made according to the act of 1811:3 That till after the decision of congress thereon, no tract of land shall be offered for sale, the claim to which has been in due time, and according to law, presented to the recorder of land titles, and filed in his office. [ * 97 ] The claims thus reserved from sale were the ones congress supposed would come before the district court and be adjudicated under the act of 1824; and as they stood protected from sale, no further provision was made by the act to protect such claims as that of Soulard, which had never been recorded. * Having given no additional protection by the act of 1824, and congress having the power to grant the land, or to cause it to be done, through the department of public lands, the commissioner of the 12 Stats. at Large, 440. 23 Ib. 406. 3 2 Ib. 662. Sizer v. Many. 16 H. general land-office (June 25, 1831) ordered the registers and receivers of the various land districts in Missouri to proceed to sell the lands, not adjudicated under the act of 1824, which had been subject to adjudication; holding that, notwithstanding the provisions of the acts of 1811 and 1818, all claims not brought before the court, or if brought, not prosecuted to a final decision in three years by reason of neglect on the part of the claimant, were subject to be offered at public sale. Volume of Instructions and Opinions, No. 704. Under this established construction, the land in question was sold to the defendant. He could not know that Soulard's heirs claimed the land, as their claim was nowhere recorded in any office appertaining to the department of public lands; and if he had known that such claim existed, still, the land court in Missouri had ceased to exist on the 26th of May, 1830, four years before he purchased; Soulard's claim had been rejected in that court, and had been pending on appeal in the supreme court, for nearly ten years after the suit was instituted; whereas the act of 1824, required that it should be prosecuted to a final decision within three years. Thus stand the equities of the defendant. But another consideration is conclusive of this case: The act of May 24, 1828, § 2, provides, that confirmations had by virtue of the act of 1824, and patents issued thereon, should only operate as relinquishments on the part of the United States, and should in nowise affect the right or title, either in law or equity, of adverse claimants to the same land. The act spoke of confirmations by decree, and declared that the decree should operate prospectively; and consequently embraced a case, where the land was acquired by purchase from the United States before the decree was made, unless the acts of 1811 and 1818 protected the land from sale. For these reasons, we agree with the supreme court of Missouri, that the defendant has the older and better legal title, and order the judgment to be affirmed. GEORGE W. and HENRY SIZER, Plaintiffs in Error, v. WILLIAM V. MANY. 16 H. 98. Nothing having been done by the court below after a mandate but to tax the costs, and they being less than $2,000, no writ of error lies. Under the 17th section of the patent act of July 4, 1836, (5 Stats. at Large, 124,) a writ of error cannot be allowed merely to review a question of costs in a patent case. Where a judgment is entered up, and a blank left for the amount of costs, it is proper for the court, at a subsequent term, to have the costs taxed and the blank filled nunc pro tunc. THE case is stated in the opinion of the court. Sizer v. Many. 16 H. George T. Curtis, for the motion. Robb, contrà. [ * 102 ] *TANEY, C. J., delivered the opinion of the court. A motion has been made to dismiss the writ of error in this case for want of jurisdiction. The case as it comes before us is this: Many, the defendant in error, in the year 1848, recovered a judgment in the circuit court for the district of Massachusetts, against the plaintiffs in error, in an action for the infringement of certain letters-patent. The verdict and judgment was for less than $2,000, but the writ of error to remove the case to this court was allowed under the patent law of 1836. From some oversight or accident, the costs were not taxed in the circuit court before the transcript of the record was transmitted to this court. And the judgment as it stood upon the transcript was for the damages awarded by the jury, and costs of suit - leaving a blank space open for the insertion of the amount of the costs. The judgment of the circuit court was affirmed at the December term, 1851, and the usual mandate sent down directing exe cution. Upon the receipt of the mandate by the circuit court, the defendant in error applied for leave to have the costs taxed and the amount inserted in the blank left for that purpose in the original record of the judgment. The motion was refused. And thereupon the [* 103] defendant in error at December term, 1852, applied to *this court for a mandamus directing the court below to tax and allow his costs in the original action, amounting, as he alleged, to $1,811.59. But the court refused the motion, upon the ground that a mandamus could not lawfully be issued to a circuit court to guide its judgment in the taxation of costs. At a subsequent term of the circuit court, the defendant in error renewed his motion, for an order allowing the taxation of these costs and their insertion in the original judgment; and the court thereupon allowed the taxation of costs, and directed the amount above mentioned to be inserted in the original judgment. But the court at the same time allowed a writ of error from their decision, and ordered that this second writ of error should operate as a supersedeas of the execution prayed for, if sued out within the time fixed by law. It is this writ of error that is now before the court, and which the defendant in error has moved to dismiss. It has been settled, by the decisions of this court, that after a case has been brought here and decided, and a mandate issued to the Sizer v. Many. 16 H. court below, if a second writ of error is sued out, it brings up for revision nothing but the proceedings subsequent to the mandate. None of the questions which were before the court on the first writ of error can be reheard or reëxamined upon the second; and there is nothing therefore now before the court but the taxation of costs. 7 Wheat. 58; 12 Pet. 488, 492. The sum taxed being less than $2,000, no writ of error will lie under the act of 1789.1 This act gives no jurisdiction to this court over the judgment of a circuit court, where the judgment is for less than that sum. Neither can the allowance of the writ by the circuit court give jurisdiction, where the only question is the amount of costs to be taxed; and the amount allowed is less than $2,000. The discretionary power in this respect vested in the circuit courts by the act of July 4, 1836, § 17, is evidently confined to cases which involve the construction of the patent laws, and the claims and rights of patentees under them. But the amount of costs which either party shall be entitled to recover is not regulated by these laws. The costs claimed are allowed or refused in controversies arising under the patent acts, upon the same principles and by the same laws, which govern the court in the taxation of costs in any other case that may come before it. The same laws, therefore, must be applied to them in relation to the writ of error, and must limit the jurisdiction of this court as in other cases. The writ of error must therefore be dismissed for want of jurisdiction. But as the question raised in this case may often occur in the circuit courts; and it is important that the practice *should be uniform, it is proper to say, that we consider the [* 104 ] decision of the circuit court, allowing those costs to be taxed after the receipt of the mandate from this court, to have been correct, and conformable to the general practice of the courts. The costs are perhaps never in fact taxed until after the judgment is rendered; and in many cases cannot be taxed until afterwards. And where this is the case, the amount ascertained is usually, under the direction of the court, entered nunc pro tunc as a part of the original judgment. And this mode of proceeding is necessary for the purposes of justice, in order to afford the necessary time to examine and decide upon the several items of costs, to which the successful party is lawfully entitled. 20 H. 467. 11 Stats. at Large, 73. |