XXIX. PROCEEDINGS IN LOWER COURT.

§ 3013. New trial. When a verdict in favor of the plaintiff is reversed in the supreme court on a bill of exceptions to instructions given to the jury, there must be a new trial awarded by the court below. Rose v. Himely, 6 Cr., 285, n.

§ 3014. An action in the nature of ejectment was tried in the district court, taken to the supreme court upon a writ of error, and the matter there re-examined, and the judgment reversed, the district court being ordered to enter judgment for the other party. Held, that this judgment was conclusive, and that the inferior court had no power to grant a new trial. Ex parte Dubuque & Pacific Railroad, 1 Wall., 73.

§ 3015. Amendments. After a writ of error from the supreme to the circuit court has been served and returned, the record is no longer before the circuit court, and cannot be amended even at an adjourned session of the term in which the decree was rendered, though it appears that the appeal has been dismissed in the court above on the application of the party applying for the amendment. United States v. Hooe, 1 Cr. C. C., 116.

§ 3016. It seems that where a verdict in favor of the plaintiff is reversed on a bill of exceptions to instructions given to the jury, there must be a new trial awarded by the court below. Hudson v. Guestier, 6 Cr., 285, n.

§ 3017. It seems that where a judgment on a special verdict or a case stated is reversed, it will be disposed of by the supreme court, and a new trial will not be awarded by the court below. Hudson v. Guestier, 6 Cr., 285, n.

§ 3018. The award, by the supreme court, of a venire de novo, on the reversal of the judgment of the court below, is, in no instance, more than an order for a new trial, and is never equivalent to a new trial. United States v. Hawkins, 10 Pet., 131.

§ 3019. Setting aside judgment. After the circuit court has adjourned for the term, it cannot set aside its judgment at a subsequent term, even for a jurisdictional defect. The only remedy is by writ of error. Bank of United States v. Moss, 6 How., 37.

§ 3020. Confirmation of decree.- The supreme court having confirmed a decree made by the circuit court for a tract of land ascertained by a survey made under the order of the circuit court, the latter court cannot, by petition, correct any alleged mistakes in the survey so as to give the decree a different effect. Chaires v. United States, 3 How., 618.

§ 3021. Amendment.- After a writ of error to the circuit court has been returned, it seems that the lower court has no power of amendment, except as to an error in process or a clerical or judicial error. Marsteller v. McClean, 2 Cr. C. C., 8.

§ 3022. Pleadings.- Where the judgment of the circuit court overruling a demurrer is reversed by the supreme court on a writ of error, the case stands in the circuit court as if the demurrer had been overruled by it, and is subject to additional pleadings or an amendment of those already on file, according to the rules and practice of such circuit court, on such terms as it may impose. United States v. Boyd, 15 Pet., 209.

§ 3028. Motion to vacate decree. The supreme court of the District of Columbia on an appeal to it affirmed the decree of the court below, and allowed an appeal to the supreme court of the United States, which was not perfected. Subsequently, and at the same term, a motion was made to vacate the decree, which was not disposed of before adjournment, but was continued as unfinished business. Held, that the motion continued the case and the parties in court till finally disposed of, notwithstanding the allowance of the appeal to the supreme court, and that it was proper for the supreme court of the District to allow the motion at a subsequent term, and to reverse the decree and vacate the appeal. Goddard v. Ordway, 11 Otto, 750.

§ 3024. Mandate Where, upon an appeal to the supreme court from the decree of a circuit court, the decree is reversed and the cause is remanded to the circuit court, the duty of the circuit court is to follow the directions of the mandate, if precise and unambiguous, and if not so, the circuit court should examine the opinion of the supreme court delivered on the reversal. West v. Brashear, 14 Pet., 54.

§ 3025. On a mandate from the supreme court to the circuit court, affirming its decree, the circuit court can only record the order of the supreme court and proceed with the execution of its own decree as affirmed. It has no power to rescind or modify the decree established by the supreme court, and in such a case the affirmance of the decree by a divided court is of the same effect and validity as if affirmed unanimously. Durant v. Essex Company, 11 Otto, 556.

§ 3026. A mandate of the supreme court required the circuit court to ascertain the amount of funds in the hands of the receiver of a railroad in a foreclosure suit, and apply them in a certain way, and that if they were insufficient for the purpose to which they were to be ap

plied, the balance due was to be computed, and if not paid within a year, then an order of sale should be issued. A reference of the accounts of the receiver having become necessary, and the master being unable to report the amount due from the receiver within the year, and it appearing from the report of the receiver that he was unable to make the payments required, the circuit court entered an order directing the sale of the property if the payment was not made within a year. Held, on appeal to the supreme court from the order, that the failure of the circuit court to await the adjustment of the accounts of the receiver before making the order was not an improper departure from the mandate of the supreme court. Milwaukee & Minnesota R'y Co. v. Soutter, 2 Wall., 519. See PRACTICE.

§ 3027. Sale of the res.- In a suit in equity the res may be sold and the proceeds invested by order of the circuit court, notwithstanding the pendency of an appeal to the supreme court. Spring v. South Carolina Insurance Co., 6 Wheat., 520.

§ 3028. Where a decree has been rendered, in a suit to foreclose a mortgage, in favor of the complainant, and an appeal has been taken from such decree to the supreme court, and the property in controversy is not brought into the supreme court, but remains in the care and custody of the court below, it seems that full power exists in the lower court, pending the appeal, to adopt all proper and judicious measures to protect and preserve it from waste or loss. And in case of a railroad, it is proper for the court to run the road, and to make a reasonable application and expenditure of its revenues for that purpose, but beyond this any appropriation of the revenues is unwarranted. Bronson v. La Crosse Railroad Co., 1 Wall.,

410.

As to practice on Certificate of Division of Opinion, see PRACTICE.

As to the Original Jurisdiction of the Supreme Court, see COURTS.

Power of the Supreme Court to issue Writs of Habeas Corpus, Mandamus, etc., see WRITS. As to the effect of State Laws and the Rules of Decision in the Federal Courts, see COURTS; PRACTICE.

APPEARANCE.

See PRACTICE.

APPLICATION OF PAYMENTS.

See PAYMENT.

APPOINTMENT OF OFFICERS.

See OFFICERS.

APPRENTICES.

§ 1. Civil rights bill.— An indenture binding a negro child as an apprentice, which does not provide for rights and privileges accorded to white children by the state laws, is void under section 1 of the civil rights bill of 1866. In re Turner, Chase's Dec., 84.

§ 2. Fugitives from labor.- The clause of the constitution, and the statutes of 1793 and 1850, on the rendition of fugitives from labor, apply to apprentices. Boaler v. Cummines,* 1 Am. L. Reg., 654.

§ 3. Local decisions.-The following decisions were made under local laws: 1 Cr. C. C., 5, 255, 171, 348, 457, 551, 610; 2 Cr. C. C., 210, 419; 3 Cr. C. C., 230, 335, 367, 650; 4 Cr. C. C., 332, 471, 475, 679, 699, 710.

APPROPRIATIONS.

See GOVERNMENT.

APPURTENANCES.

See LAND.

SUMMARY

ARBITRATION AND AWARD.*

I. IN GENERAL, SS 1-53.

II. ENFORCING AGREEMENT TO ARBITRATE, §§ 54-77.

III. THE AWARD, § 78-212.

IV. UMPIRE, §§ 213–220.

I. IN GENERAL.

Governed by lex fori, § 1.- Corporations may submit to arbitration, § 2.— Not to consider matters not submitted, § 3.

§ 1. A case removed from one court to another may be referred to arbitrators by the latter court, although such a reference was not authorized by the laws of the court from which the removal was made. Arbitration being a remedy, it is governed by the law of the forum in which the case is pending. Alexandria Canal Co. v. Swann, § 4-9.

§ 2. A corporation that is a party to an action may, by its attorney, consent to refer it to arbitrators, especially where authorized so to do by statute. Ibid.

§ 3. Arbitrators to whom was referred an action of trespass need not consider a justification under a statute authorizing the taking of land for canal purposes, such justification not having been pleaded or submitted to them. Ibid.

[NOTES.-See SS 10-53.]

ALEXANDRIA CANAL COMPANY v. SWANN.

(5 Howard, 83-90. 1846.)

ERROR to U. S. Circuit Court, Washington County, District of Columbia. Opinion by TANEY, C. J.

STATEMENT OF FACTS.- This case is brought here by writ of error from the circuit court for Washington county, in the District of Columbia. The suit was originally brought in Alexandria county by the defendant in error against the plaintiff; and upon the motion of the former was removed to Washington county under the provisions of the act of June 24, 1812, § 8. The points raised in the argument make it proper to state the pleadings more fully than is usually necessary.

It was an action of trespass for breaking and entering the plaintiff's close, situate in the county of Alexandria. The suit was brought in July, 1839. The declaration contained but one count, in the usual form, stating the trespass to have been committed on divers days and times between the 1st of January, 1835, and the commencement of the suit. The defendant pleaded, first, not guilty; second, the statute of limitations; and third, that the canal company entered under the authority of the act of congress (6 Stats. at Large, 419), for the purpose of making the canal; and that it is ready to satisfy any damages to which the plaintiff is entitled, when they shall be ascertained in the mode pointed out in the act of incorporation.

After these pleas were put in, and before any replication was filed or issue joined, the cause was removed to the circuit court for the county of Washington, by an order passed on the 12th of November, 1841, upon the motion of

*Edited by ADELBERT HAMILTON, ESQ., of the Chicago Bar.

the defendant in error. The case was continued in that court without any alteration in the pleadings until November term, 1842, when an amended declaration was filed. This declaration consisted of a single count, and differed from the original one only in undertaking to set out the abuttals of the close in which the trespass was alleged to have been committed. The defendant in the circuit court pleaded not guilty to this declaration, upon which issue was joined and a jury sworn; but before a verdict was rendered, a juror was withdrawn by consent, and upon the motion of the parties, by their attorneys, the matter in variance between them was by a rule of court referred to four arbitrators named in the order of referenee. The reference was made upon certain terms specified in a written agreement filed in the case, setting forth the manner in which the arbitrators were to be selected and the damages calculated, with power to the referees to choose an umpire, if they or a majority of them could not agree.

The arbitrators, before they entered upon an examination of the case, appointed an umpire, who afterwards made his award, and thereby awarded that the defendant (in the district court) should pay to the plaintiff the sum of $6,968.75, in full satisfaction of all the matters of damage and value submitted to his umpirage. This award was filed September 21, 1843, and notice of it regularly served on the plaintiff in error; and thereupon a judgment was entered for the amount awarded on the 17th of January, 1844. It is upon this judgment that the present writ of error is brought. It appears from the record that no objection was taken to the award in the circuit court, nor any affidavits filed to impeach it. Several depositions were filed by the defendant in error, which are not material to this decision, except in one particular, which will be hereafter noticed, on account of an objection to the award founded upon it. § 4. Arbitration is a remedy, and governed by the laws of the forum.

The reference to arbitrators and the proceedings thereon, and the judgment given by the court below, were all under and intended to be pursuant to the acts of assembly of Maryland of 1788, c. 21, § 9, and 1785, c. 30, g 11. It is admitted that these proceedings were not authorized by the laws in force in Alexandria county. And it is objected by the plaintiff in error, that, inasmuch as no judgment could have been lawfully rendered upon these proceedings in Alexandria county, no judgment ought to have been rendered upon them in Washington; that the removal of a case under the laws of congress is a mere change of venue; and that the rights of the parties are still to be tried according to the laws and modes of proceeding recognized and established in the circuit court for the county in which the suit was originally instituted. Undoubtedly, whatever rights the canal company had in Alexandria county, and whatever defenses it might there have made, either as to the form of the action or upon any other ground, it might still rely upon them in the new forum; and whatever would have been a bar to the action in Alexandria county would be equally a bar in Washington. The question here, however, is not upon the rights of the respective parties, but upon the mode of proceeding by which they were determined; and this must evidently be regulated by the law of the court to which the suit was transferred. For after the removal took place, the action, according to the act of congress, was pending in Washington county, to be there prosecuted and tried and the judgment of that court to be carried into execution. And as the act neither directs nor authorizes any change in its practice or proceedings in removed cases, it follows that they must be prosecuted and tried like other actions in that court, and could not lawfully be pros

ecuted and tried in any other manner. In impaneling a jury, for example, for the trial of the facts, it could not put aside the jurors required by law to attend that court and direct a panel of twelve to be summoned for the particular case pursuant to the law of Virginia. Nor could it deny to either party the right to strike off four names from the list of twenty, according to the law of Washington county, although the rule is otherwise in the county of Alexandria. And upon the same principles, the selection of arbitrators, the proceedings before them, and the legal effect of their award, could be no more influenced by the law upon that subject, on the other side of the Potomac, than the summoning, striking and impaneling of a jury. The validity of the reference, therefore, and of the proceedings and judgment upon it, must depend upon the law of Maryland, and not upon the law of Virginia. And if the judgment given by the circuit court was authorized by the former, it cannot be impeached upon the ground that such proceedings would not have been lawful in Alexandria county. Trying the case upon these principles, it is very clear that, as no objection was taken to the award in the circuit court, the judgment upon it was correct, and must be affirmed in this court, unless some substantial objection appears on the face of the proceedings or in the award itself.

§ 5. Arbitrators need not consider a justification of a trespass, if it was not pleaded or submitted to them.

It has been urged, however, that it is apparent on the face of the proceedings that the arbitrators committed a mistake in the law; that the record shows the acts complained of to have been done in execution of the power conferred on the company to construct a canal; and that, under the act of congress, they had a right to enter upon any land they deemed necessary for that purpose, leaving the damages to be afterwards ascertained in the mode pointed out by the law; and that, consequently, an action of trespass will not lie. But it is very clear that this question of law was not before the referees or the court; nor was it in any way involved in the decision of either. For if the plaintiff in error could have justified the entry upon the ground suggested, the justification ought to have been pleaded. And as this was not done, the question as to the legal sufficiency of this defense was not referred to the arbitrators nor decided upon by their award.

6. An amended declaration is itself original; it is not merely an additional count to one already filed.

It is said, however, that it was pleaded. This is true as relates to the pleadings filed to the original declaration. But an amended declaration was subsequently filed, and to this the plaintiff in error pleaded anew. The amended declaration was not an additional count to the former one, but was itself the entire declaration substituted for the former. And it was evidently so regarded by all parties at the time. For the plaintiff in error renewed his plea of not guilty,' which he had put into the former one, omitting, however, his former pleas of limitation and justification; and these two must have been understood to be waived, for there was no replication to either of them, nor any issue joined upon them, formal or informal. The questions, therefore, which would have arisen on these pleas, were not in issue, were not referred by the written agreement, and consequently could not have been considered or decided by the arbitrators.

7. A corporation may consent to an arbitration.

Neither can the objection be maintained which has been taken to the power of the company under its charter to refer such a question of damage. The