The limits thereby imposed upon the right of appellate courts to review the facts in common law cases have been fully and learnedly discussed by the Supreme Court.1

For centuries important rights have been judicially determined by Courts which did not use the jury system. In them a judge or judges passed upon the facts as well as upon the law. As a rule, they had before them, not the living witnesses, but merely the written depositions of such witnesses taken at another time and place. They might easily be mistaken in their conclusions as to what had happened as well as to the applicable law. The members of the appellate tribunal had usually as good an opportunity of getting at the truth. Presumably, those who sat in the higher Courts were abler and wiser than their brethren who presided in those of first instance. There can be little question that, on the average, they in fact are. They usually work under conditions more favorable to quiet and concentrated consideration of the really vital issues involved. There was no reason why they should not be free to consider and determine whether the Court below had not erred on the facts as well as on the law.

Speaking generally, a writ of error brings up for consideration the rulings on questions of law made in the course of a trial at common law. An appeal is used principally in equity and in admiralty. It carries up both facts and law. The original line of distinction still exists to the extent that no appeal can properly be taken in any case at law nor in any case in which the parties are entitled as of right to a trial by jury. In order that the Supreme Court shall not be called upon or permitted to review the decisions of State Courts in matters of fact, an appeal may not be taken, as we have seen, from a decision of the highest Court of the State to the Supreme Court even in an equity case. The only remedy is by writ of error and that brings up the rul ings of law and only the rulings of law.

In the State practice in Maryland we no longer have writs of error. One who wants a review by the Court of Appeals, asks for it in precisely the same way if what he complains

'Capital Traction Co. vs. Hof, 174 U. S. 1.

of is the erroneous ruling of the Court in the coures of a trial by jury, or the mistaken determination of a question of fact by a Chancellor. He prays an appeal in each case. When he gets into the appellate Court, however, there is the same distinction as to the extent and character of the review there obtainable as exists in the Federal Courts; that is to say, in cases which have been tried by a jury, or by the Court sitting as a jury, the Court of Appeals inquires merely as to the errors of law alleged to have been committed. It does not profess to consider whether there has been an incorrect conclusion upon the facts. If the case taken up is one on the equity side of the Court below, questions of fact as well as of law are open for the consideration of the higher tribunal.

In view of our Maryland experience, and that of many other States, it would seem quite clear that the two methods of invoking the jurisdiction of the appellate tribunal still prevailing in the Federal Courts are not necessary in order to preserve the essential distinction between the two kinds of review, and that the procedure under each of them could be greatly simplified without injuriously affecting any substantial rights.

526. Writ of Error.-A writ of error to bring up the record of a State Court to the Supreme Court of the United States is not a writ of right. It does not issue until it has been allowed either by the chief judge of the State Court, if that Court have more than one judge, or by a justice of the Supreme Court.' It is occasionally refused and should be if the judge or justice does not think the case comes within the provisions of the statute. If the application for it is made to a justice of the Supreme Court he may grant or refuse it, or he may refer the question to the Court as a whole.2 In the case cited the litigation below had been initiated in the Supreme Court of the District of Columbia. It had been thence carried to the Court of Appeals of the District. The

1 Bartemeyer vs. Iowa, 14 Wall. 26.

United States ex rel. Brown, vs. Lane, Sec'y of the Interior, 232 U. S. 598.

Supreme Court, however, said the same principles applied as in the case of a writ of error to the highest Court of the State. On the other hand, when the writ is to run from one Federal Court to another, it is not, strictly speaking, necessary to have it allowed at all. It is the practice to obtain such an allowance which, however, is granted as a matter of course. It may be allowed by a judge either of the Court to which or from which it runs.1

527. From What Office the Writ Issues.-The writ is issued by a clerk of Court. Logically, it should come from the clerk's office of the appellate Court to which it is to be returned, and that was the original practice. For convenience, however, another provision has long been made. The clerk of the District Court may issue it, and since January 22, 1912, it may be issued by a clerk of a Circuit Court of Appeals.1

The Circuit Court of Appeals for the Sixth Circuit has construed the Act last mentioned. It holds that the writ may in all cases issue from the clerk's office of either the Court to, or the Court from, which it runs. That is, when the Supreme Court is asked to review a judgment of a Circuit Court of Appeals the writ may come from the clerk's office of either of those Courts. If a judgment of a District Court is in question, the clerk of either that Court or the Clerk of the Court to which it is to be returned may issue it. The clerk of the District Court may and usually does issue the writ when it is directed to the highest Court of the State. However issued, the writ is always returnable to the clerk's office of the appellate Court.2

528. Assignment of Error.-The law requires that there shall be annexed to and returned with every writ of error various other documents.

First, an authenticated transcript of the record.

'Davidson vs. Lanier, 4 Wall. 447.

Supreme Court Rules 36 and 40.

137 Stat. 54.

2 In re Issuing Writs of Error, 199 Fed. 115.

Second, an assignment of errors and a prayer for reversal with a citation to the adverse party.

The assignment of errors tells the judge who is asked to allow the writ, what the errors are upon which the petitioner relies, and the opposing counsel and the appellate Court, what questions of law are presented for consideration and determination. While the filing of the assignment is not a jurisdictional requirement,2 it is, nevertheless, an important docu

ment.

Supreme Court Rule 35 provides that neither a writ of error nor appeal shall be allowed until such assignment has been filed. It should set out separately and particularly each error asserted and intended to be urged. When the error alleged is to the admission or rejection of evidence, the assignment should quote the full substance of the evidence admitted or rejected. When complaint is made of the charge of the Court, the assignment should set out the part referred to totidem verbis, whether it be instructions given or instructions refused. The assignment is to be included in the transcript of the record and printed with it. When this is not done, counsel will not be heard except at the request of the Court. Errors not assigned will be disregarded. The Court, however, reserves the option to notice a plain error not assigned. Rule 11 of the Circuit Court of Appeals for this circuit is to the same effect. The 21st rule of the Supreme Court and the 24th of the Circuit Court of Appeals requires the counsel for the plaintiff in error or appellant to set up in his brief distinctly and separately the errors upon which he relies.

The preparation of the assignment of errors requires more skill than is in many cases expended upon it. The assignments should be precise and particular and not vague or general. On the other hand, they should not be too numerous nor should they include errors of a minute character. It is almost always a mistake to have a great number of assignments. It is exceedingly likely to suggest to the appellate

1 Simpson vs. First Nat. Bank of Denver, 129 Fed. 257.

2 Old Nick Williams Co. vs. United States, 215 U. S. 541.

Court that you have no great confidence in any of them. If you had, you would pick the one or the few upon which you really rely and omit the others.

529. Citation.-In the Federal practice it has always been thought essential that formal notice be given to the other side of the purpose to take the case up. In order to insure that this will be done, you are required to obtain from a judge authorized to allow the writ of error a citation upon your adversaries. The three important papers which are required in connection with a writ of error are therefore:

1. The writ itself, which is the order from the appellate Court to the lower Court to send up its record.

2. The citation, which is notice to the other side that you have taken the case up.

3. The assignment of errors, which tells both the other side and the appellate Court what it is of which you complain.

Curiously enough, the citation must be signed by the judge, though the writ of error never is, even although it be allowed by him.1 As it has no purpose other than to notify the other side that the case is being taken up, there is no reason why the signature of the clerk would not do quite as well. Courts recognizing this fact, have held that any irregularity as to the signature of the citation or its service may be readily waived. For example, in the case last cited, the citation was signed by the clerk and not by the judge. It was, therefore, irregular. The defendant in error, however, entered his appearance in the Supreme Court. He took no other action at that term. When at the next he called attention to the absence of the judge's signature, it was held that he had waived his right to take advantage of that circumstance.

It should be regularly served as other writs, except that service upon the attorney or counsel of record of the defend

'Chaffee vs. Hayward, 20 How. 208.