ond; and there is nothing, therefore, now before the court but the taxation of costs. 7 Wheat., 58; 12 Pet., 488, 492.

$2724. The supreme court has no jurisdiction on a question of costs under $2,000.

The sum taxed being less than $2,000, no writ of error will lie under the act of 1789. 1Stats. at Large, 73. 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.

82725. In entering judgment a blank may be left for costs, and the costs may be subsequently taxed, and entered nunc pro tunc.

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 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.

§ 2726. In general.- If the mandate of the supreme court be not writ of error will lie to a state court as well as to a federal court. Wheat., 394. See the case, §§ 682-729. See § 2707.

correctly executed, a Martin v. Hunter, 1

2727. Where the subordinate court commits any substantial error in executing the mandate of the supreme court, a second writ of error or appeal, as the case may be, will lie to correct the error, and to cause the mandate to be executed according to its tenor and effect. Cook v. Burnlee, 11 Wall., 677.

$ 2728. An error of the lower court in carrying out the mandate of the supreme court will not authorize an appeal by a party not prejudiced by the error. Campbell v. Pratt,* 2 Pet., 354.

§ 2729. Where an appeal is void, by reason of a failure to take the necessary steps within the proper time to perfect it, a second appeal may be taken within the prescribed time; but an order extending the time for returning an appeal previously taken will not be construed as the allowance of a second appeal. United States v. Cuiry,* 6 How., 103.

§ 2730. Where a writ of error is dismissed for irregularities in the name of the parties bringing it, a new one in due form may be brought to revise the judgment. Deneale v. Archer, 8 Pet., 527.

§ 2731. Where it appears from the instructions of the circuit court to the jury in a case sent back to it from the supreme court that the opinion of the supreme court was misunderstood, the judgment will be reversed and a venire facias de novo will be awarded. Bank of Metropolis v. New England Bank, 6 Pet., 226.

§ 2732. What may be reviewed.- Whatever has been decided on one writ of error cannot be re-examined on a subsequent writ brought in the same suit. Clark v. Keith,* 16 Otto, 464; Corning v. Troy Iron and Nail Factory, 15 How., 451 (§ 148-151); United States v. 422 Casks of Wine, 1 Pet., 549; Williams v. Bank of United States, 2 Pet., 106; Cook v. Burnley, 11 Wall., £77; Tyler v. Magwire, 17 Wall., 253 (§§ 736–743); Ex parte Sibbald, 12 Pet., 492 (§§ 2600, 2601). Second appeals do not authorize an inquiry into the merits of the original judgment. Tyler v. Magwire, 17 Wall., 253. See the case, $ 736-743. See § 2704.

§ 2733. Second appeals will lie in certain cases, where it is alleged that the mandate of the appellate court has not been properly executed; but the appeal in such case will bring up nothing for re-examination except the proceedings subsequent to the mandate. The "Lady Pike," 6 Otto, 461. See the case, $ 2763-66.

§ 2734. It is too late on a second appeal to suggest a misnomer. Ibid.

§ 2735. Where a second writ of error issues to correct the judgment rendered in executing the mandate, the original record is not before the court; the error assigned is not in the former proceedings, but in the judgment rendered on the mandate. Martin v. Hunter, 1 Wheat., 304. See the case, §§ 682-729.

§ 2736. No appeal lies from a decree entered in accordance with the mandate of the supreme court. If such an appeal is taken, however, the court will, upon the application of the appellee, examine the decree entered, and if it conforms to the mandate will dismiss the case with costs. If it does not, the case will be remanded with appropriate directions for the correction of the error. The same rule applies to writs of error. (MR. JUSTICE CLIFFORD dissented.) Stewart v. Salamon.* 7 Otto, 360; Cook v. Burnley, 11 Wall., 677.

§ 2737. On appeal from the decree of the circuit court executing the mandate of the supreme court, the supreme court is only called upon to construe and execute such mandate, and cannot go beyond it. Walden v. Bodley, 9 How., 48.

§ 2738. Where the supreme court has reversed a former judgment, and remanded the case for a new trial, and the new trial is had, and the case is a second time brought to the supreme court on a writ of error, an objection that on the former occasion the supreme court should have rendered judgment for the defendant in error upon the findings will not be considered. On the second writ of error the judgment rendered on the first will not be reviewed. Ames v. Quimby, 16 Otto, 349.

§ 2739. On an appeal from the decree of the superior court of the territory of Florida made in conformity to the mandate of the supreme court on the reversal of a former judgment, the supreme court will examine the decree for the purpose of ascertaining whether it conforms to its mandate. Mitchell v. United States, 15 Pet., 84.

§ 2740. On an appeal from the decree of the circuit court executing a mandate of the supreme court, the supreme court must regard all claims, which might have been put forward in the original proceedings and were not, as waived. Therefore every existing claim which a party has omitted to make at a hearing upon the merits, and before the final decree, is to be considered as waived by him, and is not to be entertained in any future proceedings; and when a decree has been made which is in its own terms absolute, it is to be carried into effect according to those terms, and excludes all inquiry between the litigating parties as to liens or claims which might have been attached to it by the court, if they had been previously brought to its notice. The Santa Maria, 10 Wheat., 443.

§ 2741. On an appeal from the decree of the circuit court carrying into effect the mandate of the supreme court, only proceedings subsequent to the mandate can be considered. But as in all proceedings to carry into effect the decree of a court, the original proceedings are before the court so far as are necessary to determine any new points or rights in controversy between the parties which were not terminated by the original decree, the court may therefore inspect the original proceedings to ascertain the merits or demerits of the parties so far as they bear on the new claims, and must decide, upon the whole examination, what its duty requires. Ibid.

§ 2742. Though the decree restores the property generally, yet what that property is, and by what means it is to be restored, must be determined before the court can institute any further proceedings. Ibid. 1254

XXI. ADMIRALTY AND PRIZE CASES.

[See §§ 117, 125, 127, 377, 382, 477, 651, 652, 653, 1269, 1273, 1288, 1290, 1340, 1347, 1590, 1621, 1693, 1887, 1916, 2464.] SUMMARY - Appeal the proper remedy, § 2743.- Time of taking an appeal; act of 1803, § 2744. - Statute expiring pending appeal, § 2745.— Appeal from decree of affirmance, § 2746.- New decree to be made in circuit court, § 2747.- Appeal not in writing, § 2748.— Remanding to have findings put into the record, § 2749.— Stipulation, § 2750.— Appeal carries up the fund, § 2751.- New testimony, §§ 2752, 2753.

§ 2743. A decree in equity, or a sentence in a case of admiralty and maritime jurisdiction, must, under the act of 1803, be removed into the supreme court by appeal. The San Pedro, S$ 2754, 2755.

§ 2744. The rules, regulations and restrictions contained in the twenty-second and twentythird sections of the act of 1789, respecting the time within which a writ of error may be brought, in what instances it may act as a supersedeas, the citation to the adverse party, the security to be given by the plaintiff in error for prosecuting his suit, 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 sentence or decree is made, a citation is not necessary. It follows that an appeal in admiralty, equity and prize causes may be taken at any time within five years from the final decree, subject to the saving contained in the twenty-second section of the act of 1789. Ibid.

§ 2745. In admiralty cases an appeal suspends the sentence altogether, and the cause is to be heard in the appellate court de novo. And where the statute under which the suit was prosecuted had expired at the time of the hearing in the supreme court, it was held that the penalty could not be enforced. Yeaton v. United States, §§ 2756, 2757.

§ 2746. An appeal will not lie from an order of the circuit court affirming a decree of the district court in a proceeding in admiralty. The Lucille, § 2758.

§ 2747. On appeals in admiralty a new decree must be made in the circuit court. The case is not sent back to the district court for executing the decree, or for any other proceeding whatever, and the decree of the circuit court should be complete within itself. Ibid.

§ 2748. On an appeal in admiralty, the district court may dispense with its rule requiring the appeal to be in writing; and where the appeal is thus allowed the jurisdiction of the circuit court at once attaches, although the clerk fails to deliver the appeal and record to the circuit court within twenty days. The S. S. Osborne, §§ 2759-2761.

§ 2749. To authorize the court to remand the record in an appeal in admiralty, so that the findings of the court may be stated and put into the record, it must clearly appear that the omission was attributable to the fault or neglect of the court and not to the parties. The S. S. Osborne, § 2762.

§ 2750. Where a stipulation in admiralty is, by consent of parties, substituted for a prior stipulation, it becomes the only stipulation for value, and remains operative on appeal to the circuit court. The "Lady Pike," §§ 2763-2766. See § 2788.

§ 2751. An appeal in admiralty carries up the whole fund. Ibid.

§ 2752. Good reasons must be shown for introducing new testimony on appeals in admiralty. Commissions for such purpose are not allowed as of course under the twelfth rule. The Mabey, § 2767.

§ 2753. Further proof will not be admitted on an appeal in admiralty, unless a satisfactory excuse is shown for the failure to examine the witnesses in the courts below; it is not sufficient merely to allege that the witnesses are necessary and material, without whose testimony affiant cannot safely proceed to trial. The Mabey, § 2768.

[NOTES.-See § 2769-2885.]

THE SAN PEDRO.

(2 Wheaton, 132-143. 1817.)

ERROR to the Superior Court of Mississippi Territory.
Opinion by MR. JUSTICE WASHINGTON.

STATEMENT OF FACTS.- This is an admiralty case brought into this court from the superior court of the Mississippi territory by writ of error; and a preliminary question has been made, and is now to be decided, whether this is the proper process for removing a cause of admiralty and maritime jurisdiction

into this court for re-examination. A similar objection has been taken in a number of equity cases standing on the docket, removed into this court by similar process from the circuit courts. The questions which these objections have given rise to resolve themselves into the two following: 1. Whether the decree or sentence of a circuit court, in cases of equity and of admiralty and maritime jurisdiction, can be removed into the supreme court for re-examination by writ of error? 2. If they cannot, then by what rule are appeals in those cases to be governed?

In deciding these questions our attention is confined to a few sections of the act of the 24th September, 1789, c. 20, and to the second section of the act of March 3, 1803, c. 93. The twenty-second section of the former of these laws declares that from any final judgment or decree in civil actions and suits in equity brought in a circuit court by original process, or removed there from a state court, or by appeal from a district court, a writ of error may be brought to the supreme court at any time within five years, the citation being signed by a judge of such circuit court, or by a justice of the supreme court, and the adverse party having at least thirty days' notice. This section, then, provides that the judge who signs the citation shall take sufficient security that the plaintiff in error shall prosecute his writ to effect, and answer all damages and costs if he fail to do so. The twenty-third section declares under what circumstances a writ of error shall operate as a supersedeas. The act of 1803 declares that from all final judgments or decrees in a circuit court in cases of equity, of admiralty and maritime jurisdiction, and prize or no prize, an appeal shall be allowed to the supreme court; that a transcript of the libel, bill, answers, depositions, and all other proceedings in the cause shall be transmitted to the supreme court, and that no new evidence shall be admitted on such appeal, except in admiralty and prize causes. The act then provides that such appeals shall be subject to the same rules, regulations and restrictions as are prescribed by law in cases of writs of error, and it repeals so much of the nineteenth and twenty-second sections of the act of 1789 as comes within the purview of this act.

1. The first question depends upon the meaning attached by the legislature to the word purview. It is contended by the plaintiff in error that it ought to be confined to such parts of the nineteenth and twenty-second sections as are inconsistent with the provisions of the act of 1803. If this be the correct interpretation of the term, it is then insisted that there is no incongruity between the two remedies, by appeal and writ of error, even in admiralty and equity cases, and consequently that the former remedy is to be considered as merely cumulative. But the court does not yield its assent to that interpretation. Wherever this term is used, it is manifestly intended to designate the enacting part or body of the act, in contradistinction to the other parts of it, such as the preamble, the saving, and the proviso. And an attentive consideration of the subject matter of the two laws, to which our inquiries are confined, will lead very strongly to the conclusion that congress meant to use the term in this sense. It is obvious that the twenty-second section of the act of 1789 was so intimately connected with the nineteenth section, so far as it respected the appellate jurisdiction of the supreme court in admiralty and equity cases, that the remedy provided by the former would have been, in most cases, inoperative without the aid of the latter. Had the law merely provided the remedy by writ of error in those cases, nothing but the proceedings, together with the sentence or decree, would have been open to the inspection and re-examination

of the supreme court. But as in a great majority of those cases the correctness or incorrectness of the decision of the inferior court would depend upon the evidence given in the cause, the remedy by writ of error, without some further legislative provision for carrying before the appellate court the facts or the evidence, would have been altogether defective and illusory. We find, accordingly, that the nineteenth section provides that the circuit courts, in cases of equity and of admiralty and maritime jurisdiction, shall cause the facts on which they found their sentence or decree fully to appear upon the record, either from the pleadings and decree itself, or a case agreed by the parties, or their counsel; or, if they disagree, by a stating of the case by the court. Thus, upon a writ of error in equity and admiralty cases, the supreme court was furnished with the facts upon which the inferior court decided, though not with the evidence, and might, therefore, correct the errors of that court, so far as they existed in wrong conclusions of law from the facts stated.

Now the nineteenth section contains but the single provision which has been just mentioned, and consequently, if any part of it be repealed by the act of 1803, the whole must be; and if the whole, then the writ of error provided by the twenty-second section in admiralty and equity cases would be rendered, as before observed, altogether ineffectual for the purpose for which it was intended, in every case where the error complained of in the sentence or decree existed in wrong conclusions from the evidence or the facts. Even the provisions of the twenty-ninth section were, in the view of congress, defective, and must appear so to every person conversant with the practice of courts proceeding according to the forms of the civil law. The error of the inferior court may frequently consist, not in wrong conclusions of law from the facts, but in wrong conclusions of fact from the evidence. We are warranted in saying that this defect in the former law was perceived by the legislature, and was intended to be remedied by the provision in the act of 1803, that the evidence (instead of the facts) should accompany the record into the appellate court.

§ 2754. Under the act of 1803, admiralty cases must be brought up by appeal. Upon the whole, it is manifest that the subject of the two laws is the same, namely, the appellate jurisdiction of the supreme court, and the manner of exercising it. The manner of exercising it, as prescribed by the act of 1789, is essentially changed by the act of 1803, and is consequently repealed by it, because it is within the purview of the latter law, being provided for in a different way. By this construction, the appellate jurisdiction of the supreme court is made to conform with the ancient and well established principles of judicial proceedings. The writ of error, in cases of common law, remains in force, and submits to the revision of the supreme court only the law. The remedy by appeal is confined to admiralty and equity cases, and brings before the supreme court the facts as well as the law.

$2755. Of the method of taking appeals in admiralty cases.

2. The second question is attended with much less difficulty. The act of 1803, after requiring that the libel, bill, answers, depositions, and all other proceedings in the cause, shall be transmitted to the supreme court, and that no new evidence shall be admitted on such appeal except in admiralty and prize causes, provides that such appeals shall be subject to the same rules, regulations and restrictions as prescribed in cases of writs of error. These rules, regulations and restrictions are contained in the twenty-second and twenty-third sections of the act of 1789, and respect the time within which a writ of error may be brought, and in what instances it shall operate as a supersedeas; the