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Amendments of the Constitution.-American Character of a Vessel.-Annuities.

of Louisiana against the sheriff of New Orleans, to recover the value of a steamboat sold by the sheriff, under an execution, as the property of Wilkinson, one of the defendants in the execution, Buchanan, the plaintiff, alleging that the steamboat was his property. The defendant in his answer alleged that the sale of the steamboat by Wilkinson to Buchanan was fraudulent; and that it was made to defraud the creditors of Wilkinson. Before the jury was sworn, the court, on the motion of the counsel for the plaintiff, struck out all that part of the defendant's answer which alleged fraud in the sale from Wilkinson to Buchanan. Held, That there was error in this order of the court. Hozey v. Buchanan, 16 Peters,

215.

60. If a new title be asserted in an amendment of the bill, it is, as it regards the statute of limitations, a new suit. Holmes et al. v. Trout et al., 1 M'Lean, C. C. R. 11.

61. A demise that has expired in an action of ejectment may be extended after judgment. Ledgerwood et al. v. Pickett's Heirs, i M'Lean,

C. C. R. 144.

62. In an action against the acceptor of a bill, the defendant filed his plea without affidavit ;leave given to amend by adding the affidavit. Loring & Co. v. Fairchild, 1 M Lean, C. C. R. 333. 63. A writ issued in pursuance of the precipe which calls the defendant by a wrong name, can only be amended by consent. Elliott et al. v. Holmes et al., 1 M'Lean, C. C. R. 466.

64. Where a bill is amended, process need not be issued against the defendants, who are in court. Longworth v. Taylor, 1 M'Lean, C. C. R.

514.

See CONSTRUCTION.

AMENDMENTS OF THE CONSTITUTION

OF THE UNITED STATES.

AMERICAN CHARACTER OF A VESSEL.

No coaster can be sold in a foreign port, unless her license be surrendered; nor is her American character changed by such transfer. If she be condemned for the violation of an act of congress, and sold under an order of court, she may become foreign property. The Schooner Hawke, Bee's Adm. Decis. 34.

ANNUITIES.

contrivances by which, under forms sanctioned 1. The ingenuity of lenders has devised many by law, the statutes of usury may be evaded. is the purchase of annuities secured upon real Among the earliest and most common of these, estate, or otherwise. The statute does not reach these, not only because the principal may be put in hazard, but because it was not the intention of the legislature to interfere with individuals in their ordinary transactions of buying and selling, venience or profit. The purchase of an annuity or other arrangements, made with a view to conor rent-charge, if a bona fide sale, has never been considered as usurious, though more than six that if giving this form to the contract will afford per cent. profit be secured. Yet it is apparent, a cover which conceals it from judicial investigation, the statute would become a dead letter. Courts, therefore, perceived the necessity of real nature of the transaction. If that be in fact disregarding the form, and examining into the a loan, no shift or device will protect it. Though this principle may be extracted from all the cases, yet as each depends on its own circumstances, and those circumstances are almost infinitely varied, it ought not to surprise if there should be some seeming conflict in the application of the rule by different judges. Different minds allow a different degree of weight to the same circumstances. Scott v. Lloyd, 9 Peters,

418.

1. An amendment to the constitution annuls all jurisdiction which the constitution grants, whether past, present, or future, which is con2. The covenants in a deed from S., granting trary to the amendment; it arrests the action of even the supreme court in cases depending the annuity to M., secure the payment of ten before them prior to the adoption of the amend per cent. for ever on the sum advanced. There ment, and operates as an absolute prohibition to is no hazard whatever in the contract. M. must, the exercise of any other jurisdiction than dis-in something more than twenty years, receive missing the suit. The supreme court has declared the object of the seventh amendment, and inferior courts must so construe and enforce it as to effectuate the object. Barnes v. The Schooner James and Catharine, 1 Baldwin's C. C.

R. 561.

2. An amendment of the constitution has the effect of controlling and repealing the express provisions of the constitution, authorizing a power to be exercised, by a declaration, that it shall not be exercised so as to give that power. Johnson v. Tomkins et al., 1 Baldwin's C. C. R.

590.

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the money he has advanced, with the legal interest on it, unless the principal sum should be returned after five years; in which event he would receive the principal with ten per cent. interest. The deed is equivalent to a bond for 5000 pounds, amply secured by a mortgage on real estate, with interest at ten per cent. thereon, the real contract was for a loan of money withwith liberty to repay the same in five years. If out any view to a purchase, it is plainly within the statute of usury. Ibid.

ANTICHRESIS.

1. Louisiana.-L. conveyed, in 1822, in fee simple to F. & S., certain real estate in New Orleans, by deed, for a sum of money paid to him, and took from them a counter-letter, signed

Antichresis.Appeal. General Principles and Rules of Practice.

movables which he has given in pledge; but the creditor who wishes to free himself from the obligations under the antichresis, may always, unless he has renounced this right, compel the debtor to retake the enjoyment of his immova

6. The doctrine of prescription, under the civil law, does not apply to this case, which is one of pledge; and if it does, the time before the institution of this suit had not elapsed in this case, in which, by the law of Louisiana, a person may sue for immovable property. Ibid.

7. By the contract of antichresis, the possession of the property is transferred to the person advancing the money. In case of failure to pay, the property is to be sold by judicial process, and the sum which it may bring, over the amount for what it was pledged, is to be paid to the person making the pledge. Ibid.

by them, by which it was agreed, that on the
payment of a sum stated in it on a day stated,
the property should be reconveyed by them to
L.; and if not so paid, the property should be
sold by an auctioneer, and after repaying out of
the proceeds the sum mentioned in the counter-bles. Ibid.
letter, the balance should be paid to L. The
money was not paid on the day appointed, and
a further time was given for its payment, with
additional interest and charges; and if not paid
at the expiration of the time, it was agreed it
should be sold by an auctioneer. An agreement
was at the same time made by L., that the
counter-letter should be delivered up to F. & S.
and cancelled. The money not being paid, it
was again agreed between the parties, that if,
on a subsequent day fixed upon, it should not,
with an additional amount for interest, &c., be
paid, the property should belong absolutely to
F. & S. The money was not paid, and F. & S.
afterwards held the property as their own. The
court held this transaction to be an antichresis,
according to the civil code of Louisiana; and on
a bill filed in the district court of the United
States for the eastern district of Louisiana, in
1832, decreed that the rents and profits of the
estate should be accounted for by S., who had
become the sole owner of the property, by pur
chase of F.'s moiety; and that the property
should be sold by an auctioneer, unless the
balance due S., after charging the sum due at
the time last agreed upon for the payment of the
money, and legal interest, with all the expenses
of the estate, deducting the rents and profits,
should be paid to S.; and on payment of the
balance due S., the residue should be paid to the
legal representatives of L. Livingston v. Story,
11 Peters, 351.

2. Under the law of Louisiana there are two kinds of pledges, the pawn and the antichresis. A thing is said to be pawned when a movable is given as a security; the antichresis is, when the security given consists in immovables. Ibid. 3. The antichresis must be reduced to writing. The creditor acquires, by this contract, the right of reaping the fruits or other rewards of the immovables given to him in pledge, on condition of deducting, annually, their proceeds from the interest, if any be due to him, and afterwards from the principal of his debt. The creditor is bound, unless the contrary is agreed on, to pay the taxes as well as the annual charges of the property given to him in pledge. He is likewise bound, under the penalty of damages, to provide for the keeping and necessary repairs of the pledged estate; and may lay out, from the revenues of the estate, sufficient for such expenses. Ibid.

4. The creditor does not become the proprietor of the pledged immovables by the failure of payment at the stated time; any clause to the contrary is null: and in that case, it is only lawful for him to sue his debtor before the court, in order to obtain a sentence against him, and to cause the objects which have been put into his hands to be seized and sold. Ibid.

5. The debtor cannot, before the full payment of his debt, claim the enjoyment of the im

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1. General principles, and rules of practice .
2. Where an appeal lies
3. Effect of an appeal
4. Evidence on appeals

.Page 150

154

156 157

1. General Principles, and Rules of Practice. 1. Where an appeal has been dismissed, the appellant having omitted to file a transcript of the record within the time required by the rule of court, an official certificate of the dismissal of the appeal may not be given by the clerk during the term. The appellant may file the transcript with the clerk during the term, and move to have the appeal reinstated. To allow such a certificate would be to prejudge such a motion. The Bank of the United States et al. v. Swann, 3 Peters, 68.

2. It is of great importance to the due administration of justice, and in furtherance of the manifest intention of the legislature, in giving appellate jurisdiction to this court upon final decrees only, that causes should not come up here in fragments or successive appeals. It would occasion very great delays and oppressive expenses. Canter v. The American and Ocean Insurance Company, 3 Peters, 307.

3. Appeal dismissed, the appellant having failed to lodge a transcript of the record of the cause with the clerk of the court, agreeably to the rules of the court, and the appeal-bond and security not having been given. Veitch v. The Farmers' Bank of Alexandria, 6 Peters, 777.

4. The transcript of the record showed that no appeal-bond was taken or approved by the judge who signed the citation in the cause. The appeal was dismissed. Boyce v. Grundy, 6 Peters, 777.

5. No evidence can be looked into in this court, which exercises an appellate jurisdiction, that was not before the circuit court; and the evidence certified with the record, must be considered here as the only evidence before the court below. If, in certifying a record, a part of the evidence in the case had been omitted,

General Principles and Rules of Practice.

it might be certified in obedience to a certiorari; | open court, no citation is necessary. Reilly v. but in such a case, it must appear from the re- Lamar et al., 2 Cranch, 344; 1 Cond. Rep. 419. cord that the evidence was used or offered to the circuit court. Holmes et al. v. Trout et al., 7 Peters, 171.

6. A decree was pronounced by the district court of the United States for the district of Alexandria, in December, 1829, from which the defendants appealed, but did not bring up the record. At January term, 1832, the appellees, in pursuance of the rule of court, brought up the record and filed it, and on motion of their counsel the appeal was dismissed. On the 9th of March, 1832, a citation was signed by the chief justice of the court for the District of Columbia, citing the plaintiffs in the original action to appear before the supreme court, then in session, and show cause why the decree of the circuit court should not be corrected. A copy of the record was returned with the citation, "executed," and filed with the clerk. By the court: -The record is brought up irregularly, and the cause must be dismissed. Yeaton et al. v. Lennox et al., 7 Peters, 220.

7. The judiciary act directs that a writ of error must be allowed by a judge, and that a citation shall be returned with the record; the adverse party to have at least twenty days' notice. This notice, the court understands, is twenty days before the return day of the writ. Ibid.

8. Matter assigned in the appellate court as error in fact, never appears upon the record of the inferior court; if it did, it would be error in law. The whole doctrine of allowing in the appellate court the assignment of error in fact, grows out of the circumstance, that such matter does not appear on the record of the inferior court. Davis v. Packard et al., 7 Peters, 276.

9. No persons but those appearing to be parties to the record, can be permitted to be heard on an appeal or writ of error. Harrison v. Nizon, 9 Peters, 483.

10. Where it is discretionary in the court to admit an appeal, it will be refused, although the captors were irregular in not producing the master and certain documents before the court, if it appears substantial justice was done, and their production would not have varied the decision. The Chester v. The Experiment, 2 Dall. 41. 11. Where an appeal is entered from part of a decree of an inferior court, the rights of a party in the inferior court, not affected by the party appealed from, will not be noticed in the court above. M'Donough v. Danery, 3 Dall. 188; 1 Cond. Rep. 94.

12. It is in general true, that the province of an appellate court is only to inquire whether a judgment, when rendered, was erroneous or not. But if, subsequent to the judgment, and before the decision of the appellate court, a law intervenes, and positively changes the rule which governs, the law must be obeyed; and if it be necessary to set aside a judgment, rightful when rendered, but which cannot be affirmed, except in violation of law, the judgment must be set aside. United States v. The Peggy, 1 Cranch, 103; 1 Cond. Rep. 256.

13. When the appeal is prayed and allowed in

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14. Where an appeal from the circuit court to the supreme court was prayed, by a number of defendants, and one only executed the proper appeal-bond; the objection to the proceeding ought to have been taken by way of preliminary motion to dismiss the appeal for irregularity, on account of the failure to give the proper appealbond. Mandeville v. Riggs, 2 Peters, 482.

15. If the law, under which the sentence of condemnation was pronounced, be repealed after the sentence of the court below, and before final sentence in the appellate court, no sentence of condemnation can be pronounced, unless some special provision be made for that purpose by statute. Yeaton et al. v. The U. S., 5 Cranch, 281; 2 Cond. Rep. 256.

16. Upon an appeal from a mandate to carry into effect a former decree of the supreme court, nothing is before the court but_the_proceedings subsequent to the mandate. The Santa Maria, 10 Wheat. 431; 6 Cond. Rep. 176.

17. Whatever had been formerly before the court, and disposed of by the decree, is considered as finally disposed of. But upon all proceedings to carry into effect the decree of the court, the original proceedings are always before the court, so far as they are necessary to determine any new points or rights in controversy between the parties, which were not terminated by the original decree. Ibid.

18. On failure of the appellant to enter and prosecute his appeal, the appeal may be pronounced to be deserted, and the principal cause be remitted to the court below for final proceedings; in such a case, the taxation of the costs may be retained in the supreme court, or directed to be made in the court below. Or the appellee may produce the record, and have the principal cause retained in the supreme court, and upon a hearing ex parte, claim an affirmation of the original decree with costs. The Montgomery v. The Betsey, 1 Gallis. C. C. R. 416.

19. An appeal from the decree of the district court, must be taken in open court, before the adjournment sine die, unless a different period be prescribed by the court. The Hollen, 1 Mason's C. C. R. 431.

20. If the counsel for the appellant in the supreme court neglect to furnish the court with a statement of the points of the case, the appeal will be dismissed. The Schooner Catharine, 7 Cranch, 349; 2 Cond. Rep. 525.

21. The cause is in the appellate court as if it were in the inferior court. The Venus, 1 Wheat. 112; 3 Cond. Rep. 508.

22. Under the judiciary act of September 24th, 1789, ch. 20, and the act of March 3d, 1803, ch. 353, causes of admiralty and maritime juris diction, or in equity, cannot be carried from the circuit to the supreme court by writ of error; but the proper mode of removing such causes is by appeal. The San Pedro, 2 Wheat. 132; 4 Cond. Rep. 65.

23. The rules, regulations, and restrictions, contained in the 22d and 23d sections of the

General Principles and Rules of Practice.

judiciary act, respecting the time within which a writ of error shall be brought, and in what instances it shall operate as a supersedeas, the citation to the opposite party, the security to be given to the plaintiff in error, and the restrictions upon the appellate court as to reversals in certain enumerated cases, are applicable to appeals under the act of 1803, and are to be substantially observed; except that, where the appeal is prayed at the same term when the decree or sentence is pronounced, a citation is not necessary. Ibid.

is conclusive upon him as to the amount of sal. vage in his favour. He cannot, in the appellate court, claim any thing beyond that amount. Stratton v. Jarvis, 8 Peters, 4.

32. Congress had power, both before and after the ratification of the articles of confederation, in 1781, to institute a tribunal, with appellate jurisdiction, in cases of prize; and the court of appeals established under that power, had authority to hear and determine all appeals from the state courts in prize causes. Penhallow v. Doane, 3 Dall. 54; 1 Cond. Rep. 21. The U. S. v. Peters, 5 Cranch, 115; 2 Cond. Rep. 202. 33. A claim on the part of alleged joint cap

24. The question before an appellate court is, was the judgment correct; not the ground on which the judgment professes to proceed.tors, cannot be received in the supreme court M'Cluny v. Silliman, & Wheat. 598; 5 Cond. Rep. 197.

25. In all proceedings in rem, on an appeal, the property follows the cause into the circuit court, and is subject to the disposition of that court; but it does not follow the cause into the supreme court, on an appeal to that court. The Collector, 6 Wheat. 194; 5 Cond. Rep. 62.

26. After an appeal from the district to the circuit court, the former can make no order respecting the property, whether it has been sold, and the proceeds paid into court, or whether it remains specifically in the hands of the marshal. Ibid.

27. The word "appeal" comes from the civil law; and the nature and operation of an appeal, in its technical sense, cannot be a subject of doubt, in the proceedings of courts governed by that law. It is sometimes, indeed, used with us in legal language, to denote the nature of appellate jurisdiction as distinguished from original jurisdiction, without any particular regard to the mode by which a cause is transmitted to a superior jurisdiction. U.S. v. Wanson, 1 Gallis. C. C. R. 12.

28. An appeal, in a common law suit, from the district court to the circuit court, removes errors in law only for the consideration of the circuit court. Ibid. 21.

29. Where, on an appeal, merits clearly ap pear on the record in the admiralty, it is the settled practice not to dismiss the libel, but to remand the cause, and to allow the party to assert his rights in a new allegation. The Adeline, 9 Cranch, 244, 284; 3 Cond. Rep. 397. The Edward, 1 Wheat. 261; 3 Cond. Rep. 565. The Caroline, 7 Cranch, 496; 2 Cond. Rep. 584. The Ann, 7 Cranch, 570; 2 Cond. Rep. 611. The Divina Pastora, 4 Wheat. 52; 4 Cond. Rep. 388. 30. In the supreme court, on an appeal by the claimant from the circuit court on a libel for salvage, the court will not award a greater salvage, unless the salvors have also appealed. M'Donough et al. v. The Mary Ford, 3 Dall. 188; 1 Cond. Rep. 94.

31. In the district court of Maryland, upon a libel of salvage, a decree was given in favour of the salvors, from which the owners of the property appealed to the circuit court, and afterwards they prosecuted an appeal to the supreme court. No appeal from the decree of the district court was interposed by the libellant. The consequence is, that the decree of the district court |

after an appeal; but it should be made in the circuit court, to which the cause will be remanded for the purpose. The Société, 9 Cranch, 209, 3 Cond. Rep. 373.

34. In prize causes, the supreme court has an appellate jurisdiction only, and a claim cannot be originally interposed in that court: but where the court below had proceeded to adjudication before the lapse of a year and a day, the cause was remanded to that court, with directions to allow a claim to be filed thereon, and the libel to be amended. The Harrison, i Wheat. 298; 3 Cond. Rep. 571.

35. In appeals to the supreme court, from the circuit courts, in chancery cases, the parol testimony which may be heard at the trial in the court below, ought to appear in the record. Conn v. Penn, 5 Wheat. 424; 4 Cond. Rep. 716.

36. Courts of appeal, in cases of admiralty and maritime jurisdiction, may, having all the matters in controversy before them, make such a decree as the inferior court, from which the cause was removed, should have given. Penhallow v. Doane's Adm'r., 3 Dall. 54; 1 Cond. Rep. 21..

37. The superior court of Rhode Island, and not the legislature of that state, is the highest court of Rhode Island, to which a writ of error lies to the supreme court. Olney v. Arnold, 3 Dall. 308; 1 Cond. Rep. 136.

38. It is an essential criterion of appellate jurisdiction, that it revises and corrects the proceedings in a cause already instituted, and does not create the cause. Marbury v. Madison, 1 Cranch, 137; 1 Cond. Rep. 267.

39. A certiorari is not a proper proceeding from a superior to an inferior court, to remove a cause merely from defect of jurisdiction. For ler v. Lindsey, 3 Dall. 411; 1 Cond. Rep. 189.

40. Nature and extent of the powers of an appellate court. Ex parte Sibbald, 12 Peters, 488.

41. An original decree was made in the cir cuit court of Rhode Island, at June term, 1834, and an appeal was taken to January term, 1835, of the supreme court. This appeal was dismissed at January term, 1837, on the motion of the counsel for the appellees, without an examina. tion or decision on the merits of the cause. At the November term of the circuit court, the defendants prayed and were allowed a second appeal to the supreme court; which appeal had not been entered on the docket of the supreme court in 1839. The circuit court afterwards pro

General Principles and Rules of Practice.

ceeded to order execution of the decree of 1834, and the defendant appealed to the supreme court from this decree. "Held, That this appeal from he decree of the circuit court, ordering the exetution of the original decree, is not a supersedeas to further proceedings in the circuit court, to execute the original decree; and that the circuit court is at liberty to use its discretion to proceed to execute the original decree. Held, also, That the decree of execution is not a final decree, in the contemplation of the act of congress, from which an appeal lies. Carr v. Hoxie, 13 Peters, 460.

42. An appeal was prosecuted by the complainants in the circuit court of Alabama, to the supreme court, and the citation required by the act of congress had not been served on the appellee, and he had no notice of the appeal. În printing the copy of the record of the circuit court, the return of the marshal of the district, stating that the citation to the appellee had not been served, was accidentally omitted. The court, on motion by the counsel for the appellee, declared the decree in the case made at January term, 1840, null and void; revoked the mandate issued to the circuit court of Alabama, and dismissed the appeal. Ex parte Crenshaw, 15 Peters, 119.

43. A judgment was entered on a promissory note drawn by Kelly and others in favour of Lea and others, in the circuit court of Alabama. Afterwards, Kelly, the appellee, filed a bill on the equity side of the court, for the purpose of being relieved from the judgment at law obtained against him and two other persons, on the promissory note. The bill alleged fraud in the plaintiffs in the suit, and that the complainant had no notice of the suit, and had not authorized an appearance, or filed any plea in the same. The bill prayed for a perpetual injunction of proceedings on the judgment, and for general relief. The injunction was granted; and afterwards, on the appearance of two of the plaintiffs in the suit at law, the circuit court decreed that, on the condition that the complainant, Kelly, appear and plead to the merits of the case, waiving the question of jurisdiction, and pay costs of the suit at law, and the proceedings in equity, a new trial be awarded to the complainant. Two of the plaintiffs in the suit at law, who had appeared to the bill, appealed to the supreme court, seeking to reverse this decree. Held, That the decree of the circuit court was merely interlocutory; and was not a final decree, from which an appeal could be taken. Lea et al. v. Kelly, 15 Peters, 213.

44. A bill was filed by residuary legatees, claiming to receive from the executors their respective proportions of the estate of the testator; on a reference to a master to take an account, the master reported seven thousand seven hundred and ninety-five dollars and twenty-seven cents, to be in the hands of the executors, which sum was paid by them into court. The report was referred back to the master, who made his final report, by which he found a further sum in the hands of the executors, exclusive of sundry uncollected debts then outstanding, some bad,

and some good. Exceptions were filed to this report, which were disallowed by the court. The circuit court decreed that the report should be accepted, and that the complainant should have execution for the sum reported in the hands of the executors; and as to the residue of the debts due the estate, as soon as the same, or part of them, should be collected, the amount should be paid into court for distribution, to be made under the direction of the court. Held, That this is an interlocutory, and not a final decree, in the sense of the act of congress; and an appeal from the same cannot be taken. Young et al. v. Smith, 15 Peters, 287.

45. The acts of congress, relating to judicial proceedings in the territory of Florida, give the right of appeal to the supreme court of the United States, in cases of equity, of admiralty and maritime jurisdiction, and prize or no prize; but cases at law are to be brought up by writ of error, as provided for by the judiciary act of 1789. It has always been held that a case at law cannot, under the act of 1803, be brought to the supreme court by appeal. Parrish v. Ellis, 16 Peters, 451.

46. In many of the states and territories, the ancient common law remedy for the purpose of obtaining an allotment of dower, as well as the remedies for other legal rights, have been changed for others more convenient and suitable to our situation and habits; yet they are regarded as cases at law, although they are not carried according to the forms of the common law. Ibid.

47. Motion to dismiss an appeal. The appellants were the original defendants. After the decree of the circuit court, an appeal was claimed by all the defendants, and allowed by the court. A part of the defendants, who had originally claimed the appeal, before any further proceedings abandoned it; and the residue of them, excepting Todd, have, since the appeal was filed, abandoned it, and Todd only has entered his ap pearance in the supreme court. The record stood in the names of all the appellants. A motion was made to dismiss the appeal, for irregularity and want of jurisdiction, on the ground that it cannot be maintained on behalf of Todd alone. The court refused to dismiss the appeal. Todd et al. v. Daniel, 16 Peters, 521.

48. The proper rule in cases of this sort, where there are various defendants, seems to be, that all the defendants affected by a joint decree (although it may be otherwise, where the defendants have separate and distinct interests, and the decree is several, and does not jointly affect all) should be joined in the appeal; and if any of them refuse or decline upon notice and process, (in the nature of a summons, and severance in a writ of error,) to be issued in the court below, to become parties to the appeal, then that the other defendants should be at liberty to prosecute the appeal for themselves and upon their own account, and the appeal as to the others be pronounced to be deserted, and the decree of the court below as to them be proceeded in and executed. Ibid.

49. An appeal or writ of error will not lie from the decision of the circuit court to the supreme

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