An Act to establish the Judicial Courts of the United States. — reading text

dispute when the action was instituted. Wilson v. Daniel, 3 Dall. 401 ; 1 Cond. Rep. 185. Where the value of the matter in dispute did not appear in the record, in a case brought by writ of error, the court allowed affidavits to be taken to prove the same, on notice to the opposite party. The writ of error not to be a supersedeas. Course v. Stead’s Ex’ors, 4 Dall. 22; 1 Cond. Rep. 217; 4 Dall. 20 ; 1 Cond. Rep. 215. The Supreme Court will permit viva voce testimony to be given of the value of the matter in dispute, in a case brought up by a writ of error or by appeal. The United States v. The Brig Union et al., 4 Cranch, 216 ; 2 Cond. Rep. 91. The plaintiff below claimed more than $2000 in his declaration, but obtained a verdict for a less sum. The appellate jurisdiction of the Supreme Court depends on the sum or value in dispute between the parties, as the case stands on the writ of error in the Supreme Court; not on that which was in dispute in the Circuit Court. If the writ of error be brought by the plaintiff below, then the sum the declaration shows to be due may still be recovered, should the judgment for a smaller sum be reversed ; and conse- quently the whole sum claimed is in dispute. Smith v. Honey, 3 Peters, 469; Gordon v. Ogden, 3 Peters, 33. In cases where the demand is not for money, and the nature of the action does not require the value of the thing to be stated in the declaration, the practice of the courts of the United States has been to allow the value to be given in evidence. Ex parte Bradstreet, 7 Peters, 634. The onus probandi of the amount in controversy, to establish the jurisdiction of the Supreme Court in a case brought before it by writ of error, is upon the party seeking to obtain the revision of the case. He may prove that the value exceeds $2000, exclusive of costs. Hagan v. Foison, 10 Peters, 160. The Supreme Court has no jurisdiction in a case in which separate decrees have been entered in the Circuit Court for the wages of seamen, the decree in no one case amounting to $2000, although the amount of the several decrees exceed that sum, and the seamen in each case claimed under the same contract. Oliver v. Alexander, 6 Peters, 143. See Scott v. Lunt’s Adm’rs, 6 Peters, 349. The Supreme Court will not compel the hearing of a cause unless the citation be served thirty days be- fore the first day of the term. Welsh v. Mandeville, 5 Cranch, 321 ; 2 Cond. Rep. 268. A citation must accompany the writ of error. Lloyd v. Alexander, 1 Cranch, 365; 1 Cond. Rep. 334. When an appeal is prayed during the session of the court, a citation to the appellee is not necessary. Riley, appellant, v. Lamar et al., 2 Cranch, 344; 1 Cond. Rep. 419.  FIRST CONGRESS. Sess . I. Ch . 29. 1789. 85 sal in either court on such writ of error for error in ruling any plea in Writs of error abatement, other than a plea to the jurisdiction of the court, or such limited. plea to a petition or bill in equity, as is in the nature of a demurrer, or for any error in fact. And writs of error shall not be brought but within five years after rendering or passing the judgment or decree complained of, or in case the person entitled to such writ of error be an infant, feme covert, non compos mentis, or imprisoned, then within five years as afore- said, exclusive of the time of such disability.(a) And every justice or Plaintiff to give judge signing a citation on any writ of error as aforesaid, shall take security. Act of Decem- good and sufficient security, that the plaintiff in error shall prosecute his ber 12, 1794, writ to effect, and answer all damages and costs if he fail to make his chap. 3. plea good, (b) Sec . 23. And be it further enacted, That a writ of error as aforesaid Writ of error shall be a supersedeas and stay execution in cases only where the writ a supersedeas. of error is served, by a copy thereof being lodged for the adverse party in the clerk’s office where the record remains, within ten days, Sundays exclusive, after rendering the judgment or passing the decree complained of. Until the expiration of which term of ten days, executions shall not issue in any case where a writ of error may be a supersedeas; and where- upon such writ of error the Supreme or a circuit court shall affirm a judgment or decree, they shall adjudge or decree to the respondent in error just damages for his delay, and single or double costs at their dis- cretion.(c) Sec . 24. And be it further enacted, That when a judgment or decree Judgment or shall be reversed in a circuit court, such court shall proceed to render decree versed. re- such judgment or pass such decree as the district court should have ren- dered or passed; and the Supreme Court shall do the same on reversals therein, except where the reversal is in favour of the plaintiff, or petitioner in the original suit, and the damages to be assessed, or matter to be de- creed, are uncertain, in which case they shall remand the cause for a final decision. And the Supreme Court shall not issue execution in Supreme court causes that are removed before them by writs of error, but shall send a not to issue special mandate to the circuit court to award execution thereupon. execution but mandate. Sec . 25. And be it further enacted, That a final judgment or decree Cases in which in any suit, in the highest court of law or equity of a State in which a judgment and decision in the suit could be had, where is drawn in question the vali- decrees of the highest court of dity of a treaty or statute of, or an authority exercised under the United a state may be States, and the decision is against their validity; or where is drawn in examined by the question the validity of a statute of, or an authority exercised under any supreme court, on writ of error. State, on the ground of their being repugnant to the constitution, trea- ties or laws of the United States, and the decision is in favour of such their validity,(d) or where is drawn in question the construction of any (a) An appeal under the judiciary acts of 1789 and 1803, was prayed for and allowed within five years; held to be valid, although the security was not given within five years.. The mode of taking the security and the time of perfecting it, are exclusively within the control of the court below. The Dos Hermanos, 10 Wheat. 306 ; 6 Cond. Rep. 109. (&) By the act of December 12, 1794, chap. 3, the security required to be taken on signing a citation on any writ of error which shall not be a supersedeas, and stay execution, shall only be for an amount which will be sufficient to answer for costs. (c) Supersedeas. The Supreme Court will not quash an execution issued by the court below to enforce its decree, pending a writ of error, if the writ be not a supersedeas to the decree. Wallen v. Williams, 7 Cranch, 278 ; 2 Cond. Rep. 491. (d) In delivering the opinion of the Supreme Court in the case of Fisher v. Cockrell, 5 Peters, 248, 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 to this tri- bunal. 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 never will, we trust, shrink from that which is conferred upon it.” The appellate power of the Supreme Court of the United States extends to cases pending in the State courts; and the 25th section of the judiciary act, which authorizes the exercise of this jurisdiction in the specified cases by writ of error, is supported by the letter and spirit of the constitution. Martin v. Hun- ter’s Lessee, 1 Wheat. 304; 3 Cond. Rep. 575. Under the 25th section of the judiciary act of 1789, where the construction of any clause in the con- II 86 FIRST CONGRESS. Sess . I. Ch . 20. 1789. 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, may be re-examined and reversed or affirmed in the Supreme Court of the United States upon a writ of error, the citation being signed by the chief justice, or judge or chancellor of the court rendering or passing the judgment or decree complained of, or by a justice of the Supreme Court of the United States, in the same manner and under the same re- gulations, and the writ shall have the same effect, as if the judgment or decree complained of had been rendered or passed in a circuit court, Proceedings and the proceeding upon the reversal shall also be the same, except that on reversal. the Supreme Court, instead of remanding the cause for a final decision as before provided, may at their discretion, if the cause shall have been once remanded before, proceed to a final decision of the same, and No writs of award execution. But no other error shall be assigned or regarded as error but as a ground of reversal in any such case as aforesaid, than such as appears above mention- on the face of the record, and immediately respects the before men- ed. stitution 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 in the constitution or statute ; otherwise the Supreme Court has no appellate jurisdiction in the case. It is not sufficient that the con- struction of the statute was drawn in question, and that the decision was against the title. It must appear that the title set up depended on the statute. Williams v. Norris, 12 Wheat. 117 ; 6 Cond. Rep. 462. If the construction or validity of a treaty of the United States is drawn in question in the State courts, and the decision is against its validity, or against the title set up by either party 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. The 2d article of the constitution of the United States enables the Supreme Court to receive jurisdic- tion to the full extent of the constitution, laws and treaties of the United States, when any question re- specting them shall assume such form that the judicial power is capable of acting upon it. That power is capable of acting only when the subject is submitted to it by a party who asserts his right in the form prescribed by law. It then becomes a case. Osborn v. The Bank of the United States, 6 Wheat. 738 ; 5 Cond. Rep. 741. The Supreme Court has no jurisdiction under the 25th section of the act of 1789, 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 scire facias de novo, is not a final judgment. Houston v. Moore, 3 Wheat. 433 ; 4 Cond. Rep. 286. The Supreme Court has