Statement of the Case.

COGSWELL v. FORDYCE.

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF ARKANSAS.

No. 63. Submitted November 2, 1888.- Decided November 19, 1888.

An action upon a bond given to supersede a judgment or decree of a court of the United States is not a case brought on account of the deprivation of any right, privilege, or immunity secured by the Constitution of the United States, or of any right or privilege of a citizen of the United States," so as to give this court jurisdiction of it in error or on appeal under the fourth subdivision of Rev. Stat., § 699, "without regard to the sum or value in dispute."

As the matter in dispute in this case, exclusive of costs, does not exceed the sum or value of $5000, the writ of error is dismissed.

SAMUEL W. FORDYCE recovered in the Circuit Court of the United States for the Eastern District of Arkansas, December 7, 1882, a judgment in ejectment against Thomas J. Cogswell and Anna M. Cogswell. From that judgment the latter prayed an appeal to this court, executing with J. L. Goodbar, as surety, a bond in the penalty of $3600, conditioned that the principal obligors would prosecute their appeal with effect or, failing therein, pay all such costs and damages as the obligee sustained by reason of the wrongful detention of the property sued for.

The obligors having failed to prosecute their appeal, the present suit was brought, February 24, 1885, upon said bond, to recover the sum of $3600, as the damages sustained by reason of the detention of the property from the plaintiff in the ejectment suit.

A demurrer to the complaint having been overruled, the defendants filed an answer. The parties consenting thereto in writing, the case was tried by the court without the intervention of a jury, and judgment rendered June 20, 1885, in favor of the plaintiff for the sum of $2400.

The defendants thereupon sued out this writ of error.

Opinion of the Court.

Mr. Samuel Shellabarger and Mr. Jeremiah M. Wilson, for plaintiffs in error, submitted on their brief.

Mr. Casey Young and Mr. John D. Martin also filed a brief for plaintiffs in error.

No appearance for defendant in error.

MR. JUSTICE HARLAN delivered the opinion of the court.

After stating the facts as above reported, he continued: This court cannot take cognizance of this case. The matter in dispute, exclusive of costs, does not exceed the sum or value of $5000. Rev. Stat., §§ 690, 691; Act of February 16, 1875, c. 77, 3, 4, 18 Stat. 315; Richardson's Suppl. Rev. Stat.

136.

It was, perhaps, supposed that our jurisdiction could be sustained under the fourth subdivision of § 699 of the Revised Statutes, providing that this court may, without regard to the sum or value in dispute, review any final judgment at law or final decree in equity of any Circuit Court or of any District Court acting as a Circuit Court, "in any case brought on account of the deprivation of any right, privilege, or immunity secured by the Constitution of the United States, or of any right or privilege of a citizen of the United States." But an action upon a bond given to supersede a judgment or decree of a court of the United States, cannot properly be said to have been brought on any such account. The mere failure or refusal of the obligors in such a bond to comply with its terms is not, within the meaning of the statute referred to, a “deprivation” of a right secured to the obligee by the Constitution of the United States, or of any right or privilege belonging to him, as a citizen of the United States. See Bowman v. Chicago & Northwestern Railway Co., 115 U. S. 611,

615.

The writ of error is dismissed.

Opinion of the Court.

UNITED STATES v. DEWALT.

APPEAL FROM THE FIRST JUDICIAL DISTRICT COURT OF THE TERRITORY OF WYOMING.

No. 81. Argued November 15, 1888.- Decided November 19, 1888.

On the authority of Mackin v. United States, 117 U. S. 348, it is again held that imprisonment in a state prison or penitentiary, with or without hard labor, is an infamous punishment.

THIS was an appeal from a judgment on an application for a writ of habeas corpus, discharging the prisoner. The case is stated in the opinion of the court.

Mr. Solicitor General for appellant.

No appearance for appellee.

MR. CHIEF JUSTICE FULLER delivered the opinion of the

court.

DeWalt, the appellee, was tried and convicted, upon an information of the crime of embezzlement and making false entries as the president of a national bank, in violation of § 5209 of the Revised Statutes, and sentenced and committed to the penitentiary for ten years. This section prescribes the punishment of imprisonment for not less than five nor more than ten years, which imprisonment may be ordered to be executed in a state jail or penitentiary. Rev. Stat. § 5541. Appellee was subsequently discharged on habeas corpus upon the ground that the crime in question was an infamous crime, for which he could not, under the Constitution, be held to answer on information, but only on presentment or indictment by a grand jury. From the order discharging him this appeal is prosecuted, and it is contended that a crime is not infamous which is not subject to the penalty of hard labor as part of the punishment of imprisonment.

This, however, was otherwise ruled in Mackin v. United States, 117 U. S. 348, 352, where this court held, speaking

Opinion of the Court.

through Mr. Justice Gray, "that at the present day imprisonment in a state prison or penitentiary, with or without hard labor, is an infamous punishment.”

That case is decisive of this, and the order appealed from must be

Affirmed.

PACIFIC POSTAL TELEGRAPH CABLE COMPANY v. O'CONNOR.

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF CALIFORNIA.

A remittitur, in a judgment on a verdict, of all sums in excess of $5000, made on the day following entry of the judgment, on motion of plaintiff's counsel, in the absence of defendant or his counsel, is no abuse of the discretion of the court.

MOTION TO DISMISS for want of jurisdiction. The case is stated in the opinion.

Mr. D. M. Delmas for the motion.

Mr. Andrew Wesley Kent opposing.

MR. CHIEF JUSTICE FULLER delivered the opinion of the

court.

This was an action to recover damages for personal injuries, which resulted, August 29th, 1888, in a verdict for $5500. Upon the return of the verdict the court directed, as minuted by the clerk, judgment to be entered thereon. On the 30th day of August the plaintiff below, by his counsel, asked leave in open court to remit the sum of $500, which was granted, and judgment rendered for $5000 and costs, "and now so appears of record."

Subsequently the defendant below moved to set aside the allowance of the remittitur and to correct the judgment, which motion was denied by the court, and defendant ex

Counsel for Plaintiff in Error.

cepted, and by bill of exceptions brought the court's direction to the clerk of August 29th into the record, and the fact that the judgment of August 30th was rendered in the absence of defendant and his counsel.

A writ of error having been subsequently prosecuted to reverse the judgment, defendant in error moves to dismiss it for want of jurisdiction.

We cannot hold upon this record the action of the Circuit Court to have been in abuse of its discretion, and as the judg ment as it stands is for $5000 only, the motion to dismiss must be granted. Ala. Gold Life Ins. Co. v. Nichols, 109 U. S. 232; First Nat. Bank of Omaha v. Redick, 110 U. S. 224; Thompson v. Butler, 95 U. S. 694.

Writ of error dismissed.

CLARK v. COMMONWEALTH OF PENNSYLVANIA.

SAME v. SAME.

ERROR TO THE COURT OF QUARTER SESSIONS OF THE PEACE FOR THE COUNTY OF ALLEGHANY, STATE OF PENNSYLVANIA.

Nos. 1189, 1190. Argued November 5, 1888. - Decided November 19, 1888.

The petition for a writ of error forms no part of the record of the court below.

In error to a state court, to review one of its judgments, this court acts only upon the record of the court below, and, in order to give this court jurisdiction it is essential that the record should disclose, not only that the alleged right, privilege or immunity, was set up and claimed in the court below, but that the decision of that court was against the right so set up or claimed.

These records do not disclose whether the refusal of the court below to give the instructions requested amounted to a denial of the claim of the plaintiff in error to immunity, and the writs of error are therefore dismissed.

THE case is stated in the opinion of the court.

Mr. W. L. Bird for plaintiff in error.