Writs of Error under the Twenty-Fifth Section of the Judiciary Act of 1789. 106. Where a cause is brought to the supreme | ported by the letter and spirit of the constitu court, by writ of error or appeal, from the highest tion. Martin v. Hunter, 1 Wheat. 304; 3 Cond. court of law or equity in a state, under the Rep. 575. twenty-fifth section of the judiciary act of 1789, ch. 20, upon the ground that the validity of a statute of the United States was drawn in question, and that the decision of the state court was against its validity, &c.; or, that the validity of the statute of the state was drawn in question, as repugnant to the constitution of the United States, and the decision was in favour of its validity; it must appear by the record, that the validity of the act of congress, or the constitutionality of the state law, was drawn in question. Miller v. Nicholls, 4 Wheat. 311; 4 Cond. Rep. 465. 113. Under the twenty-fifth section of the judiciary act of September 24, 1789, ch. 20, where the construction of any clause in the constitution, or any statute of the United States, is drawn in question, in any suit in a state court; the decision must be against the title or right set up by the party, under such clause of the constitution or statute: otherwise the supreme court has no appellate jurisdiction in the case. It is not sufficient that the construction of the statute was drawn in question, and that the decision was against the title of the party; it must appear that his title depended upon the statute. Williams v. Norris, 12 Wheat. 117; 6 Cond. Rep. 462. under the treaty, the supreme court has jurisdiction to ascertain that title, and to determine its legal meaning, and is not confined to the abstract construction of the treaty itself. Ibid. 358. 107. Where a party claiming a title to lands under an act of congress, brought a bill for a conveyance, and stated several equitable cir- 114. If the construction or validity of a treaty cumstances in aid of his title; and the state of the United States is drawn in question, in the court in which the suit was brought dismissed state courts, and the decision is against its vali. the bill; and the cause was brought to the su-dity, or the title specially set up by either party preme court of the United States by appeal, under the twenty-fifth section of the judiciary act of September 24, 1789, ch. 20, on the ground of an alleged misconstruction of the act of congress by the state court: the supreme court could not take into consideration any distinct equity, arising out of the contracts or transactions of the parties, and creating a new and independent title; but was confined to an examination of the title, as depending upon the construction of the act of congress. Matthews v. Zane et al., 7 Wheat. 164; 5 Cond. Rep. 265. 108. The opinion of the state court upon such collateral questions is conclusive. Ibid. 109. Where a state obtains a judgment against an individual, and the court rendering such judgment overrules a defence set up under the constitution and laws of the United States; the transfer of the record into the supreme court, for the sole purpose of inquiring whether the judgment violates the constitution or laws of the United States, cannot be denominated a suit commenced or prosecuted against the state, whose judgment is so far re-examined within the eleventh amendment of the constitution of the United States. Cohens v. Virginia, 6 Wheat. 264; 5 Cond. Rep. 90. 110. It is only when the state court decides against the claim set up under the law of the United States, that appellate jurisdiction is given to the supreme court from state decisions. M'Cluny v. Silliman, 6 Wheat. 598; 5 Cond. Rep. 197. 111. The supreme court of the United States has no jurisdiction under the twenty-fifth section of the judiciary act of 1789, ch. 20, unless the judgment or decree of the state court be a final judgment or decree. A judgment reversing that of an inferior court, and awarding a venire facias de novo, is not a final judgment. Houston v. Moore, 3 Wheat. 433; 4 Cond. Rep. 286. 112. The appellate power of the United States extends to cases pending in the state courts; and the twenty-fifth section of the judiciary act, which authorizes the exercise of this jurisdiction in the specified cases by a writ of error, is sup 115. The second article of the constitution of the United States, enables the judicial department to receive jurisdiction to the full extent of the constitution, laws, and treaties of the United States, when any question respecting them shall assume such a form that the judicial power is capable of acting on it. That power is capable of acting only, when the subject is submitted to it by a party who asserts his rights in the form prescribed by law. It then becomes a case. Osborn v. The Bank of the United States, 9 Wheat. 738; 5 Cond. Rep. 741. 116. When in such a case the validity of a statute of any state is drawn in question, upon the ground of its being repugnant to the constitution of the United States, and the decision has been in favour of its validity, it is necessary to the exercise of the appellate jurisdiction of the supreme court, that it should distinctly appear, that the title or right of the party depended on the statute. Ibid. 117. Under the twenty-fifth section of the judiciary act of September 24, 1780, ch. 20, the supreme court has no appellate jurisdiction from the final judgment of the highest court of a state, in a suit, where is drawn in question the construction of a statute of, or commission held under the United States; unless some right, title, privilege, or exemption, under such statute, be specially set up by the party, and the deci sion be against the claim so made by him. Montgomery v. Hernandez et al., 12 Wheat. 129; 6 Cond. Rep. 475. 118. It is no objection to the exercise of the appellate jurisdiction of the supreme court, that one of the parties is a state, and the other a citizen of that state. Cohens v. Virginia, 6 Wheat. 264; 5 Cond. Rep. 90. 119. The jurisdiction of the supreme court being extended by the letter of the constitution to all cases arising under it, or under the laws Writs of Error under the Twenty-Fifth Section of the Judiciary Act of 1789. of the United States, it follows, that those who | would withdraw any case within the letter of the constitution from the jurisdiction of the court, must sustain the exemption they claim as the spirit and true meaning of the instrument, which spirit and true meaning must be so apparent, as to overrule the words which its framers have employed. Ibid. tion, or if that question was applicable to the case, the supreme court has jurisdiction of the cause; although the record should not, in terms, state a misconstruction of the constitution of the United States, or that the repugnancy of the statute of the state, to any part of that constitution, was drawn into question. Satterlee v. Matthewson, 2 Peters, 380. 120. A decree of the highest court of equity 125. The supreme court has frequently deof a state, affirming the decretal order of an in- cided, that to sustain this jurisdiction in appeals ferior court of equity of the same state, refusing and writs of error, it is not necessary to state, in to dissolve an injunction granted on the filing of terms, upon the record, that the constitution or a the bill, is not a final decree within the twenty-law of the United States was drawn in question. fifth section of the judiciary act of September 24th, 1789, ch. 20, from which an appeal lies to the supreme court of the United States. Gibbons v. Ogden, 6 Wheat. 448; 5 Cond. Rep. 134. 121. The power of the supreme court to revise the judgment of state tribunals, depends on the twenty-fifth section of the judiciary act. That section enacts, "that a final judgment or decree in any suit in the highest court of law or equity of a state, in which a decision in the suit could be had," where is drawn in question the validity of a statute, or of an authority exercised under any state, on the ground of their being repugnant to the constitution, treaties or laws of the United States, and the decision is in favour of their validity, "may be re-examined, and reversed or affirmed in the supreme court of the United States." Weston et al. v. The City Council of Charleston, 2 Peters, 449. 122. A writ of error to the supreme court may be prosecuted, where, by the judgment of the highest court of the state of South Carolina, a prohibition issued in a state court, to prevent the levying of a tax which was imposed by a law repugnant to the constitution of the United States, was refused by the state courts, on the ground that the law was not repugnant to the constitution. Ibid. 464. It is sufficient to bring the case within the twenty-fifth section of the judiciary act, if the record shows that the constitution, or a law of the United States must have been misconstrued, or the decision could not have been made; or that the constitutionality of a state law was questioned, and the decision was in favour of. the party claiming under such law. Wilson et al. v. Black Bird Creek Marsh Co., 2 Peters, 245. 126. It has often been decided in the supreme court, that it is not necessary it shall appear, in terms, upon the record, that the question was presented in the state court, whether the case was within the purview of the twenty-fifth section of the judiciary act of 1789, to give jurisdiction to the court, in a case removed from a state court; it is sufficient, if, from the facts stated, such a question must have arisen, and the judgment of the state court would not have been what it is, if there had not been a misconstruction of some act of congress, &c., &c., or a decision against the validity of the right, privilege, or exemption set up under it. Harris v. Dennie, 3 Peters, 292. 127. The supreme court of the United States has no power under the twenty-fifth section of the judiciary act of 1789, to revise the decree of a state court, when no question was raised or 123. In the construction of the twenty-fifth decided in the state court upon the validity or section of the judiciary act, passed 24th Sep- construction of an act of congress, nor upon the tember, 1789, the supreme court has never re-authority exercised under it, but on a state law quired that the treaty or act of congress under only. M'Bride v. Hoey, 11 Peters, 167. which the party claims, who brings the final judgment of a state court into review before the court, should have been spread upon the record. It has always deemed it essential to the exercise of jurisdiction, in such a case, that the record should show a complete title, under the treaty, or act of congress, and that the judgment of the court is in violation of that treaty, or act. Hickie v. Starke et al., 1 Peters, 94. 128. The judgment of the highest court of law of a state, deciding in favour of the validity of a statute of a state, drawn in question on the ground of its being repugnant to the constitution of the United States, is not a final judgment within the twenty-fifth section of the judiciary act of 1789; if the suit has been remanded to the inferior state court, where it originated, for further proceedings, not inconsistent with the judgment of the highest court. Winn's Heirs v. Jackson et al., 12 Wheat. 135; 6 Cond. Rep. 479. 124. Objections to the jurisdiction of the supreme court have been frequently made, on the ground that there was nothing apparent on the 129. A lot of ground, situated in the city of record to raise the question, whether the court New Orleans, which was occupied under an infrom which the case had been brought, had de- complete title, for some time, by permission of cided upon the constitutionality of a law, so that the Spanish government, granted before the acthe case was within the provisions of the twenty-quisition of Louisiana by the United States, wag fifth section of the judiciary act of 1789. This confirmed to the claimants, under the laws of has given occasion for a critical examination of the section, which has resulted in the adoption of certain principles of construction applicable to it. One of those principles is, that if the repugnancy of a statute of a state to the constitution of the United States, was drawn into ques the United States; and a patent was issued for the same on the 17th of February, 1821. The city of New Orleans, claiming this lot as being part of a quay dedicated to the use of the city, in the original plan of the town, and therefore not grantable by the king of Spain, enlarged the Writs of Error under the Twenty-Fifth Section of the Judiciary Act of 1789. levee, in front of New Orleans, so as to include | constitution, treaties, statutes, commissions or it. The patentees from the United States brought authorities in dispute. Crowell v. Randell, 10 a suit in the district court of the state of Loui- Peters, 368. siana for the lot, which pronounced judgment in their favour, and that judgment was affirmed by the supreme court of the state. The judgment was removed to the supreme court under the 25th section of the judiciary act. A motion was made to dismiss the writ of error for want of jurisdiction. By the court:-The merits of this controversy cannot be revised in this tribunal. The only inquiry here is, whether the record shows that the constitution, or a treaty, or a law of the United States has been violated by the decision of that court. City of New Orleans v. De Armas et al., 9 Peters, 224. 130. The twenty-fifth section of the judiciary act is limited by the constitution, and must be construed so as to be confined within those limits. But to construe this section so that a case can arise under the constitution or a treaty only when the right is created by the constitution or treaty, would defeat the obvious purpose of the constitution, as well as the act of congress. The language of both instruments extends the jurisdiction of the supreme court to rights protected by the constitution, treaties or laws of the United States, from whatever source these rights may spring. Ibid. 131. It has been settled, that in order to give jurisdiction to the supreme court, under the 25th section of the judiciary act, it is not necessary the record should state, in terms, that an act of congress was in point of fact drawn in question. It is sufficient if it appears from the record that an act of congress was applicable to the case and was misconstrued; or the decision of the state court was against the privilege or exemption specially set up under such statute. Davis v. Packard et al., 6 Peters, 41. 132. The twenty-fifth section of the judiciary act of 1780, confers appellate jurisdiction in the supreme court from final judgments and decrees in any suit in the highest court of law or equity of a state, in which a decision in the suit could be had, in three classes of cases; first, where is drawn in question the validity of a treaty or statute of, or an authority exercised under the United States, and the decision is against their validity; secondly, where is drawn in question the validity of a statute of, or an authority exercised under any state, on the ground of their being repugnant to the constitution, treaties or laws of the United States, and the decision is in favour of such, their validity; thirdly, where is drawn in question the construction of any clause of the constitution or of a treaty or statute of, or commission held under the United States, and the decision is against the title, right, privilege, or exemption specially set up or claimed by either party under such clause of the said constitution, treaty, statute, or commission. The section then goes on to provide that no other error shall be assigned or regarded as a ground of reversal in any such cases as aforesaid, than such as appears upon the face of the record; and immediately respects the beforementioned questions of validity or construction of the said 133. In the interpretation of the twenty-fifth section of the act of 1780, it has been uniformly held, that to give the supreme court appellate jurisdiction two things should have occurred, and be apparent in the record: first, that some one of the questions stated in the section did arise in the court below; and, secondly, that a decision was actually made thereon by the same court in the manner required by the section. If both of these do not appear on the record, the appellate jurisdiction fails. It is not sufficient to show that such a question might have occurred, or such a decision might have been made in the court below. It must be demonstrated that they did exist, and were made. Ibid. 134. It has been decided, that it is not indispensable that it should appear on the record, in totidem verbis, or by direct and positive statement, that the question was made, and the deci sion given by the court below, on the very point; but that it is sufficient, if it is clear from the facts stated, by just and necessary inference, that the question was made; and that the court below must, in order to have arrived at the judg ment pronounced by it, have come to the very decision of that question as indispensable to that judgment. Ibid. 135. In order to bring a case for a writ of error or an appeal to the supreme court from a court of the highest jurisdiction of any of the states, within the twenty-fifth section of the judiciary act, it must appear on the face of the record: 1st. That some one of the questions stated in that section did arise in the state court: 2d. That the question was decided by the state court as required in the same section. It is not necessary that the question should appear on the record to have been raised, and the decision made in direct and positive terms, ipsissimus verbis; but it is sufficient, if it appears by clear and necessary intendment that the question must have been raised, and must have been decided in order to have induced the judgment. It is not sufficient to show that a question might have arisen or been applicable to the case; unless it is farther shown on the record that it did arise, and was applicable by the state court to the case. Ibid. 136. Where, in such a case, the validity of a statute of any state is drawn in question upon the ground of its being repugnant to the constitution of the United States, and the decision has been in favour of its validity; it is necessary to the exercise of the appellate jurisdiction of this court, that it should distinctly appear that the title or right of the party depended upon the statute. Williams v. Norris, 12 Wheat. 117; 6 Cond. Rep. 462. 137. New York. The plaintiff in error claimed to recover the land in controversy, having derived his title under a patent, granted by the state of New York to John Cornelius. He insisted that the patent created a contract between the state and the patentee, his heirs and assigns, that they should enjoy the land free from any legislative Where Writs of Error will not lie for alleged Errors in Proceedings in the Trial of Causes. regulations to be made in violation of the constitution of the state: and that an act passed by the legislature of New York, subsequent to the patent, did violate that contract. Under that act commissioners were appointed to investigate the contending titles to all lands held under such patents as that granted to John Cornelius, and by their proceedings, without the aid of a jury, the title of the defendants in error was established against and defeating the title under a deed made by John Cornelius, the patentee, and which deed was executed under the patent. By the court: This is not a case within the clause of the constitution of the United States which prohibits a state from passing laws which shall impair the obligation of contracts. The only contract made by the state, is a grant to John Cor-3. nelius, his heirs and assigns, of the land. The patent contains no covenant to do or not to do any further act in relation to the land; and the court are not inclined to create a contract by implication. The act of the legislature of New York does not attempt to take the land from the patentee; the grant remains in full effect; and the proceedings of the commissioners under the law operated upon titles derived under and not adversely to the patent. Jackson v. Lamphire, 3 Peters, 280. 140. In delivering the opinion of the supreme court in the case of Fisher v. Cockerell, Mr. Chief Justice Marshall said: "In the argument, the court has been admonished of the jealousy with which the states of the Union view the revising power, entrusted by the constitution and laws of the United States to this tribunal. To observations of this character, the answer uniformly has been, that the course of the judicial department is marked out by law: we must tread the direct and narrow path prescribed for us. As this court has never grasped at ungranted jurisdiction, so it will never, we trust, shrink from that which is conferred upon it." Ibid. 249. Where Writs of Error will not lie for alleged Errors in Proceedings in the Trial of Causes. 141. If the court should refuse to give an opinion when required upon a point relative to the issue, and the jury should, notwithstanding, find a verdict in accordance with the opinion requested, there is no error of which the party can complain. M'Allister v. Douglass et al., 3 Cranch, 298; 1 Cond. Rep. 537. 142. It is not a ground for a writ of error, that the court below refused to reinstate the cause after judgment of nonsuit. United States v. Evans, Cranch, 280; 2 Cond. Rep. 256. 143. The refusal of the court below to grant a new trial, is not error. Henderson v. Moore, 5 Cranch, 11; Marine Insurance Company of Alexandria v. Young, 5 Cranch, 187; Barr v. Gratz, 4 Wheat. 213; 4 Cond. Rep. 426. 144. The refusal of the court below to allow the plea to be amended, or a new plea to be filed, or to grant a new trial, or to continue a cause, cannot be assigned as error. Marine Insurance Company of Alexandria v. Hodgson, 7 Cranch, 332; 2 Čond. Rep. 516. 138. The mother of Aspasia, a coloured wo-5 man, was born a slave at Kaskaskias, in Illinois, previous to 1787, and before that country was conquered for Virginia. Aspasia was born in Illinois subsequent to the passage of the ordinance for the government of that territory. Aspasia was afterwards sent as a slave to the state of Missouri. In Missouri, Aspasia claimed to be free, under the ordinance "for the government of the territory of the United States north-west of the river Ohio," passed 13th July, 1787. The supreme court of Missouri decided that Aspasia was free; and Menard, who claimed her as his 145. The refusal of the court below to reinslave, brought a writ of error under the twenty-state a cause which has been legally dismissed, fifth section of the act of 1789, claiming to re- is no ground for a writ of error. Welsh v. Manverse the judgment of that court. Held, that the deville, 7 Cranch, 152; 2 Cond. Rep. 452. case is not within the provisions of the twentyfifth section of the act of 1789. Menard v. Aspasia, 5 Peters, 505. 139. The case of Fisher's Lessee v. Cockerell, was a writ of error to the court of appeals of the state of Kentucky, to review a decision of that court, affirming a judgment of the Union county court of that state, as to the validity of a law of that state, called the occupying claimant law. The validity of the law rested upon the question of its opposition to the compact between Virginia and Kentucky, relative to lands originally in Virginia, and the compact of the state of Kentucky. The proceedings of the court of Union county did not show that the compact was brought before the court, and the allegation that the plaintiff relied on the compact between those states, was first made in the court of appeals. In the court of Union county, the question of the validity of the compact was not presented. Held, that this was not a case for a writ of error to the supreme court, under the twenty-fifth section of the judiciary act of 1789. Lessee of Fisher v. Cockerell, 5 Peters, 248. 146. But a writ of error will not lie on a judg ment of nonsuit. Evans v. Phillips, 4 Wheat. 73; 4 Cond. Rep. 394. 147. The allowance or disallowance of amendments is not matter for which error lies. Chirac et al. v. Reinecker, 11 Wheat. 280; 6 Cond. Rep. 310. | 149. A judge cannot be required to declare the law on hypothetical questions, which do not belong to the cause on trial. He may refuse to give an opinion on such a point, and if the party propounding the question is dissatisfied with it, he may except to the refusal, which exception will avail him, if he show that the question was warranted by the testimony, and that the opinion he asked ought to have been given. But if he proceeds to state the law, and states it erroneously, his opinion ought to be revised; and if it can have had any influence on the jury, their verdict should be set aside. Etting v. The Bank 216. Proceedings on Writs of Error.-Costs on Writs of Error.-Escape. of the United States, 11 Wheat. 59; 6 Cond. Rep. | service of the citation, it must be served on her husband. Fairfax, Ex'r, v. Fairfax, 5 Cranch, 19; 2 Cond. Rep. 178. 150. If evidence is offered and rejected by the court, and an exception taken, and upon the production of further proof, the evidence is subsequently admitted, the judgment will not be reversed, even if the court below was wrong in originally refusing the testimony. Hinde's Lessee v. Longworth, 11 Wheat. 199; 6 Cond. Rep. 270. 151. A refusal to amend a verdict is not the subject of a writ of error. Steams v. Barret, 1 Mason's C. C. R. 153. 152. It is within the discretion of the court, before whom a trial is had, to set aside a verdict in consequence of an irregularity committed by the jury, but it is not examinable on error. United States v. Gillies, Peters' C. C. R. 159. 4. Proceedings on Writs of Error. 153. Where evidence is sent up from the circuit court, in an admiralty case, but no statement of facts by the court, the decree of the court below was affirmed, as no error. Jennings v. The Brig Perseverance, 3 Dall. 336; 1 Cond. Rep. 154. 154. Although the testimony offered in the circuit court to establish a fact, was legal, yet the court committed no error in rejecting it, for which the judgment ought to be reversed; because the fact did not appear to have been relevant to the issue. Turner v. Fendall, 1 Cranch, 117; 1 Cond. Rep. 261. 155. The plaintiff may assign as error, the want of jurisdiction of the court in the suit instituted by him; and he may take advantage of such error. Capron v. Van Noorden, 2 Cranch, 126; 1 Cond. Rep. 370. 156. When a writ of error is brought from the judgment of a state court of appeals, to revise its decision, reversing the judgment of an inferior state court, and the supreme court of the United States reverses the decision of the court of appeals, the judgment of the latter becomes a nullity; and the supreme court will direct its mandate to the inferior state court. Clarke v. Harwood, 3 Dall. 342; 1 Cond. Rep. 157. 157. A writ of error, issued in September, may be tested as of the preceding February term (when the supreme court formerly commenced its session), and may be returned to the next February term, notwithstanding the intervention of the August term. Blackwell v. Patten, 7 Cranch, 277; 2 Cond. Rep. 491. 158. A writ of error is a nullity, if not returned to the court to which it was returnable. Blair v. Miller, 4 Dall. 21; 2 Cond. Rep. 77. 159. The transcript of the record need not contain the names of the jurors who tried the cause. Field v. Miller, 3 Cranch, 514; 1 Cond. Rep. 612. 160. A citation must be served and accompany a writ of error, issued from the supreme court, according to the twenty-second section of the judiciary act of 1789; or the writ will be quashed. Lloyd v. Alexander, 1 Cranch, 365; 1 Cond. Rep. 334. 161. If the defendant, in the circuit court, interinarries after the judgment, and before the 162. If the writ of error is served after the return day, the service is bad; but if served while in force, and returned afterwards, it is valid. Wood v. Lido, 4 Cranch, 180; 2 Cond. Rep. 76. 163. The service of a writ of error, is the lodging a copy thereof, for the adverse party, in the office of the clerk of the court, where the judgment was rendered. Ibid. 164. The return of a copy of the record in the case, under the seal of the clerk of the court, certified by the clerk, and annexed to the writ of error, is a sufficient return to the writ. Martin v. Hunter, 1 Wheat. 305; 3 Cond. Rep. 575. 165. The taking of a bond according to the act of congress, need not appear; the provision is merely directory, and the presumption of law is, that it was complied with, unless the contrary appears. Ibid. 166. A writ of error must bear test of the term next preceding that to which it issued; and a term must not intervene between the test and the return. Hamilton v. Moore, 3 Dall. 371; 1 Cond. Rep. 168. 167. The rule to dismiss a writ of error, for not filing the record within six days after the term, does not apply to cases where the record is filed before the motion to dismiss is made. Bingham v. Morris, 7 Cranch, 99; 2 Cond. Rep. 431. 168. Where the supreme court reverses a judgment, because a court of common law had not jurisdiction of the cause, it will not award a venire facias de novo. Bingham v. Cabot, 3 Dall. 19; 1 Cond. Rep. 13. 5. Costs on Writs of Error. 169. Where, on a writ of error to the higa court of appeals of Maryland, the judgment there given, reversing the decision of the general court, is reversed in the supreme court of the United States, the plaintiff in error will be entitled to his costs in all the courts, and the mandate for execution issue to the general court. Clarke v. Harwood, 3 Dall. 342; 1 Cond. Rep. 157. ESCAPE. 1. A discharge from the prison rules, by the insolvent law of Virginia, although obtained by fraud, is a discharge in due course of law; and upon such discharge, no action can be sustained upon the prison bound bond for an escape. Simms and Wise v. Slacum, 3 Cranch, 300; 1 Cond. Rep. 539. 2. The obligors in a bond, for the prison limits, are not discharged from their liability for an escape, by the subsequent assent of the plain. tiff. Such assent, to have any effect, must be given prior to the escape. Slocum et al. v. Hathaway, 1 Paine, 290. 3. The condition of a bond, that a prisoner "shall faithfully and absolutely remain within |