pellants bring themselves within none of the exceptions which have ever been recognized. There has been no fraud or circumvention, and the whole difficulty arises from their own negligence alone. It does not appear that the clerk was called upon to make the transcript until after the term of this court to which the appeal was returnable had closed. No security for costs ever was given, and in fact nothing was done towards the prosecution of the appeal until it had become inoperative by lapse of time, except to obtain an order of the court for its allowance. To entertain the cause under such circumstances would be to encourage an addition to the already burdensome delay necessarily attendant upon litigation in this court on account of the crowded state of the docket. Instead of this, we should, as we do, insist on promptness and activity by all who come here to obtain a re-examination of judgments and decrees against them.

§ 1364. At any time before the hearing advantage may be taken of a failure to docket a cause in time. Appearance is no waiver. (a)

It by no means follows, as seems to be supposed by counsel who resist this motion, that if parties appear and without objection go to a hearing in a cause docketed after the return term, our judgment will be void for want of jurisdicdiction. The real objection is not that this court has no jurisdiction, but that the plaintiff in error or the appellant, as the case may be, has failed to duly prosecute his suit; and this objection may be taken advantage of by the court upon its own motion, or by the appellee or the defendant in error at any time before hearing. Mere appearance does not amount to a waiver. In this case the objection was taken in time.

CARROLL v. DORSEY.

Appeal dismissed.

(20 Howard, 204-208. 1857.)

ERROR to the Circuit Court for the District of Columbia.

Opinion by TANEY, C. J.

STATEMENT OF FACTS.- A motion has been made to dismiss this case for want of jurisdiction.

It appears that an action of ejectment was brought by the plaintiffs in error against the defendants, in the circuit court of the district of Columbia, and upon the trial the verdict and judgment was for the defendants. The particular day on which the judgment was rendered is not given; but it is stated as a judgment on the third Monday in October, in the year 1851, which, it appears, was the first day of the term. But it also appears that two exceptions were taken at the trial by the plaintiffs, one dated the 20th and the other the 22d of November; so that the judgment would seem to have been rendered a few days before the December term, 1851, of this court. No steps were taken to bring it here for revision until the 27th of May, 1853, when an appeal bond was approved by the presiding judge, which recites that the plaintiffs had obtained a writ of error returnable to the next term of this court and filed it in the clerk's office. No such writ of error, however, appears to have been issued. A paper purporting to be a writ of error was issued after the commencement of December term, 1853; that is, on the 17th of that month. This paper is made returnable to the supreme court in general terms, without naming any

(a) In Owings v. Tiernan, 10 Pet., 24, it is held that if a case is docketed before a motion to dismiss is made, the motion will be denied; so, also, in Bingham v. Morris,* 7 Cr., 99. In Wood v. Lide,* 4 Cr., 180, it was held that the failure to return a writ of error to the first term is waived by an appearance by defendant in error.

day or even any term at which the defendants were required to appear. The transcript before us also contains a citation, signed by the presiding judge, and the service is acknowledged by the attorney for the defendants. But the citation, like the paper purporting to be a writ of error, specifies no day or term at which the defendants are required to appear, and, moreover, is not itself dated. No further proceedings were had to bring up the case until December term, 1856, when the record was filed without any other writ of error, bond or citation; and at the same term the defendants, by their counsel, appeared in this court.

1365. A writ of error must be made returnable on a certain day, and must be filed at the next term of the court.

It is evident from this statement that the case is not before the court. The act of 1789, sec. 22, requires that the writ of error should be made returnable on a certain day therein named; and, indeed, upon common law principles, a certain return day in a writ of error is essential to its validity. There is, therefore, no process by which the case is legally brought before this court, and consequently we have no jurisdiction over it. And if the process was free from exception, and if a writ of error, such as is known and recognized by law, had been issued and filed in the circuit court, yet no transcript of the record was filed here until nearly three years afterwards; and this court have repeatedly said that the transcript of the record must be filed at the term next succeeding the issuing of the writ or the taking of the appeal, in order to bring the case within the jurisdiction of this court.

§ 1366. Want of citation may be waived, but not want of regular writ of error, or due filing of transcript.

But it is said on behalf of the plaintiffs in error that these are mere irregularities which were waived by the general appearance at the last term, and that the motion at the present term is too late. Undoubtedly the appearance of the defendants at the last term, without making a motion to dismiss, cures the defect in the citation. The citation is nothing more than notice to the party to appear at the time specified for the return of the writ of error. And if he appears it shows that he had notice; and if he makes no objection during the first term to the want of notice, or to any defect in the citation, he must be regarded as having waived it. The citation is required for his benefit, and he may, therefore, waive it, if he thinks proper, and proceed to trial in the appellate court. This point was decided in the case of the United States v. Yulee et al., 6 How., 603; but the court at the same time said that the appearance did not preclude the party from afterwards moving to dismiss for the want of jurisdiction, or upon any other sufficient ground. The same point was again decided in the case of Buckingham et al. v. McLean et al., 13 How., 150, in which the court said that a motion to dismiss for want of a citation must be made at the first term at which the party appears, and is too late if made at a subsequent term. But the want of a writ of error, such as is prescribed by the act of congress, stands on different ground. And in the case of the United States v. Curry, 6 How., 118, the court held that where the power of the court to hear and determine a case is conferred by acts of congress, and the same authority which gives the jurisdiction points out the manner in which it shall be brought before us, we have no power to dispense with the provisions of the law nor to change or modify them.

Upon this ground the case is not legally before us, and must be dismissed for want of jurisdiction.

INSURANCE COMPANY v. MORDECAI.

Opinion by TANEY, C. J.

(21 Howard, 195-202. 1858.)

STATEMENT OF FACTS.-The defendant in error, on the Sth of October, 1858, obtained a judgment against the plaintiffs in error in the district court of the United States for the western district of Virginia. On the 18th of the same. month, this writ of error was sued out, and made returnable on the second Monday in January then next ensuing in other words, it was made returnable on the second Monday in January, in the present term of this court, and the defendant in error was cited to appear here on that day. A motion has been made to dismiss the case, upon the ground that, in order to bring the judgment of the district court before this court, the writ of error must be returnable on the first day of the term, and that a writ of error with a different return day is not authorized by law, nor by the rules and practice of this court.

§ 1367. A writ of error must be made returnable to the first day of the term. (a)

By the act of congress of May 8, 1792 (1 Stat., 278), it was made the duty of the clerk of this court to transmit to the clerks of the several circuit courts of the United States the form of a writ of error, to be approved by two of the judges of this court, and the clerks of the circuit courts were by that act authorized to issue writs of error agreeably to such form, as nearly as the case would admit. And it is by virtue of this act alone that the clerk of a circuit court, or of a district court exercising the jurisdiction of a circuit court, is authorized to issue a writ of error to remove a case to this court. Immediately after its passage, the form of a writ of error was adopted and transmitted to the clerks of the circuit courts, pursuant to its provisions, and that form made it returnable on the first day of the term of this court next ensuing the issuing of the writ that is, on the day appointed by law for the meeting of the court. The form then adopted has never been changed, nor are we aware of any case in which a writ of error with a different return day has been sanctioned by this court. It is unnecessary, therefore, to inquire what may be the rules of practice in this particular in other courts. The legal return day was fixed under the authority of the act of 1792, and a writ of error issued by the clerk of a circuit court, or of a district court exercising the powers of a circuit court, with a different return day, or differing in any other material respect from the form transmitted, is without authority of law, and will not bring up the case to this court. The rules of the court have been framed in conformity with this return day of the writ, and the rule which permits a defendant in error to docket and dismiss a case if the transcript is not filed by the plaintiff within the time. therein limited, necessarily presupposes that the writ is returnable on the first day, and that the plaintiff might then file the transcript. He may, it is true, return the writ with the transcript at any time during the term, unless the case has been docketed and dismissed, when it cannot afterwards be filed without the special order of the court. But this permission to return the writ, and file the transcript at a subsequent day, is upon the principle that, for certain purposes of convenience or justice, the term is considered as but one period of time as one day, and that day the first of the term. The writ before us was obviously issued by some oversight of the clerk, who followed the form used

(a) In Porter v. Foley,* 21 How., 333, the writ was not made returnable to the first day of the term, and the court refused to remand for the purpose of having the writ and citation amended, but gave the party leave to withdraw the transcript to be used with proper legal process in bringing the case up.

when this court met on the second Monday in January, without, it would seem, adverting to the circumstance that the day of meeting had been changed by law, and that the first Monday in December, and not the second Monday in January, was the first day of the term.

§ 1368. and if the writ is defective in this particular it cannot be amended, nor can the supreme court issue a new citation.

Neither can the writ of error be amended. The defendant in error was cited and admonished to appear on the second Monday in January, and if the writ were amended, it could not be maintained with this citation, for the defendant must be cited to appear on the same day that the writ is returnable. The citation is the regular and familiar process from a court of justice, notifying and requiring the defendant to appear and make his defense, if he has any, on the return day of the writ. And the common law process of a writ of error made returnable on one day, and a summons to the defendant to appear at another, would be without precedent, and would be as objectionable as the entire absence of a citation. And the want of proof that the defendant was cited has always been held to be a fatal defect in the process prescribed and required by the act of 1789, whereby a party is authorized to bring the judgment of an inferior court before this court for revision a defect which can be cured only by the voluntary appearance of the party entered on the record. Nor can this mistake be corrected by a citation from this court. The act of congress requires it to be issued by the judge or justice who allows the writ of error, and it can. not be legally issued by any other judge or court. The case must therefore be dismissed for want of jurisdiction in this court.

§ 1369. Filing transcript. The transcript of the record must be filed at the next succeeding term of the court. Carroll v. Dorsey, 20 How., 204. See the case, §§ 1365-66. A failure to file the transcript at the next term is fatal to the appeal. The Lucy, 8 Wall., 307. See the case, SS 194-196. § 1370. The ten days after judgment within which a writ of error is to be filed do not commence to run from the filing of the opinion of the court denying the motion for a new trial, but from the entry of the rule for judgment in the clerk's office. Hatch v. Coddington,* 5 Blatch., 523.

X. APPEAL AND WRIT OF ERROR BONDS.

1. In General.

SUMMARY - Executed to a deceased party, § 1371.- Supreme court may enlarge security, § 1372.- Condition held sufficient, § 1373.— Must be approved by justice, § 1374.— Time given by supreme court to file bond, § 1375.- Power of lower court after case is docketed, § 1376.

§ 1371. An appeal hond executed to a deceased party instead regular; but the court will permit a sufficient bond to be filed. 1379.

of the administrator is irBigler v. Waller, §§ 1377–

§ 1372. The supreme court may enlarge the security in a writ of error bond where the judgment is for a certain sum of money; but it has no such power where a judgment has been rendered in ejectment, on which nominal damages only are awarded. In such case the court cannot enlarge the security to cover damages which a plaintiff may recover in an action for mesne profits, or for any other losses which he may allege he will sustain by being kept out of possession of the land by any delay there may be in prosecuting the writ of error. Roberts v. Cooper, § 1380. See § 1400.

§ 1373. An appeal bond conditioned that the appellants "shall duly prosecute their said appeal with effect, and, moreover, pay the amount of costs and damages rendered and to be rendered in case the decree shall be affirmed in the supreme court," is sufficient under § 1000, Revised Statutes. Gay v. Parpart, § 1381.

§ 1374. The security required upon appeals and writs of error must be taken by the judge or justice. A bond approved by the clerk alone is void; but time will be given to file a sufficient bond. O'Reilly v. Edrington, § 1382. See § 1392.

$ 1375. Where no appeal bond was given at the time of taking the appeal, the supreme court gave sixty days within which to file a bond for costs. Anson v. Blue Ridge R. Co., § 1383. See § 1401.

§ 1376. When a bond for an appeal is accepted and the case is docketed in the supreme court, the jurisdiction of the lower court is gone; it cannot vacate the allowance of the appeal and require additional security. Keyser v. Farr, § 1384. See § 1408.

[NOTES.-See $$ 1385-1419.]

BIGLER v. WALLER.

(12 Wallace, 142-150. 1870.)

APPEAL from U. S. Circuit Court, District of Virginia.
Opinion by MR. JUSTICE CLIFFOrd.

STATEMENT OF FACTS.— The record shows that the appellant, on the 14th of June, 1866, instituted a suit in equity in the circuit court against William Waller and Robert Saunders, for the cause of action set forth in the bill of complaint. Among other things he alleged that he entered into an agreement in writing with William Waller for the purchase of certain real estate lying in the county of York and state of Virginia; that the said respondent, on the 10th of May, 1853, executed to the complainant a deed of the said real estate, and that the complainant, on the same day, made the cash payment as stipulated in the agreement, and gave to the respondent, at the same time, his obligation to pay the balance of the purchase money at the times therein specified; that on the 22d of June, in the same year, the complainant executed to the other respondent a trust deed of the premises to secure the balance of the consideration which he agreed to pay for the real estate, as stipulated in that obligation; that he went into possession, made valuable improvements, and continued to make the stipulated payments until April, 1861, when the war broke out, and he was compelled to leave the state; that after he left the state, Waller authorized the other respondent, as such trustee, to make sale of the real estate, and the complainant alleges that the trustee effected the sale without publishing the notice required by the terms of the deed of trust, and that he satisfied the said obligation out of the proceeds of the sale, and has failed to account to the complainant for the balance of the proceeds; that Waller became the purchaser of the real estate at that sale; that he immediately took possession of the same, together with certain personal property of great value belonging to the complainant; that he sold the same and converted the proceeds to his own use, and applied the same to the payment of the balance due on the said obligation; that he also rented the real estate and received large sums of money as rents; that he, the complainant, subsequently succeeded, through the aid of our military authorities, in recovering possession of the real estate, but that he found it in a ruinous condition; that since that time, to wit, on the 11th of November, 1865, Waller instituted a suit against him on the said obligation in the supreme court of the city and county of New York, to recover what he claims to be due thereon; that subsequently the other respondent posted up, in the county where the real estate is situated, a notice "that he would, at the request of said Waller, in a few weeks, sell said real estate."

Based on these and other similar allegations, the charge is made that Waller may induce the trustees so to act in regard to the sale of the premises as to cheat and defraud the complainant; therefore he prays that the trustee may be enjoined from selling the said real estate, and that the said Waller may be