to the evidence (Bank v. Smith, 11 Wheat. 171); but not after pleading to the merits after demurrer to a plea in abatement is sustained. (Stanton v. Embrey, 93 U. S. 548; Bell v. Railroad Co., 4 Wall. 598.) So if a plaintiff replies de novo after demurrer sustained he waives all right to a writ of error. (Clearwater v. Meredith, 1 Wall. 25.) A party may sue out a writ of error to a judgment rendered against him in favor of a corporation, although the State law incorporating it provides that no writ of error shall be allowed. (Young v. Bank, 4 Cranch, 384.) The regulations for removal on writs of error or appeal are the same as from circuit courts. (Thompson v. Biggs, 5 Wall. 663.) A writ of error will not lie to a decision upon a motion for a new trial (Marine Ins. Co. v. Young, 5 Cranch, 187); or to a refusal to quash a ca. sa. issued upon a judgment certified from a justice of the peace (Mountz v. Hodgson, 4 Cranch, 324); or to a refusal to grant a motion to set aside a judgment (Connor v. Peugh, 18 How. 394); or to a judgment of supreme court of District of Columbia in a criminal case (U. S. v. Moore, 3 Cranch, 159); or to an order quashing an inquisition of damages in condemnation of land and ordering a new inquisition. (Ches. & O. Canal Co. v. Union Bank, 8 Peters, 259.) A tenant in possession who is not a party to an action of ejectment cannot sue out a writ of error to a judgment against a casual ejector. (Connor v. Peugh, 18 How. 394.) A writ of error does not lie to a certificate of the findings of a jury in the trial of an issue sent from the orphans' court, although exceptions may have been obtained (Van Ness v. Van Ness, 6 How. 62; Brown v. Wiley, 4 Wall. 165); or when an issue is sent to a jury to determine who is entitled to letters of administration. (Van Ness v. Van Ness, 6 How. 62.)

Appeals.-An appeal lies from a decree for the sale of property under a mortgage (Ray v. Law, 3 Cranch, 179); or from an order dismissing a petition seeking to revoke the probate of a will (Carter v. Cutting, 8 Cranch, 251); but not from an interlocutory order dissolving an injunction (Young v. Grundy, 6 Cranch, 51); or a judgment refusing to appoint appellant guardian of a minor (De Kraft v. Barney, 2 Black, 704; Ritchie v. Mauro, 2 Peters, 243); or from an order awarding the writ of habere facias posses

sionem to a purchaser at a sale under decree of court. (Callan v. May, 2 Black, 541.) A purchaser cannot appeal if a decree setting aside an order confirming a sale directs another sale of the property to be had. (Butterfield v. Usher, 91 U. S. 246.) The allowance of commissions to an executor is discretionary, and no appeal lies from an order thereon. (Nichols v. Hodges, 1 Peters, 562; West v. Smith, 8 How. 406.)

Amount. The value of the matter in dispute is determined by the judgment, without adding interest and costs, and if it is less than twenty-five hundred dollars the case will be dismissed. (Pierce v. Cox, 9 Wall. 786; Railroad Co. v. Grant, 98 U. S. 398; Railroad Co. v. Trook, 100 U. S. 112.) In an action of replevin the value of the article replevied is the matter in dispute, and must exceed twenty-five hundred dollars. (Peyton v. Robertson, 9 Wheat. 527.) The difference between the sum claimed and the amount recovered must exceed twenty-five hundred dollars (Wise v. Columbia Turnpike Co., 7 Cranch, 276); but if the verdict is for the defendant, the sum claimed in the declaration is the amount in dispute, and must exceed twenty-five hundred dollars. (Scott v. Lunt, 6 Peters, 349; U. S. v. McDaniel, 6 Peters, 634.) An appeal will not lie from a decree dismissing a bill for the sale of a lot under a deed of trust to secure one thousand dollars, although the lot is worth more than twenty-five hundred dollars, and the real question is whether the debtor is entitled to the lot. (Farmers' Bank v. Hoof, 7 Peters, 168.) When several complainants join in one bill and obtain a joint decree, the defendant may appeal, although the amount claimed by each is less than twenty-five hundred dollars (Market Co. v. Hoffman, 101 U. S. 112); but if a complainant joins distinct causes of action against distinct parties, he cannot appeal from a decree dismissing the bill if the claim against each is less than twenty-five hundred dollars, although the aggregate exceeds that amount. (Paving Co. v. Mulford, 100 U. S. 147.)

Reversal or affirmance.-If defendant plead nonassumpsit in an action sounding in tort, the judgment will be reversed (Garland v. Davis, 4 How. 131); and in such case the cause will be remanded. (Garland v. Davis,

4 How. 131.) The omission of an allegation of notice of protest in an action against the indorser of a foreign bill of exchange is ground for reversal (Slocum v. Pomeroy, 6 Cranch, 221); and any fault which is a good ground for arresting the judgment may be assigned as error (Slocum v. Pomeroy, 6 Cranch, 221); but no point arising on the pleadings or evidence that is not made and considered below can be urged in Supreme Court. (Brocket v. Brocket, 3 How. 691.) An error in entering the case on the docket may be corrected by the record filed, and a mere clerical omission of a word in a prayer for an appeal will not be fatal. (Adams v. Law, 16 How. 144.) When a case is not properly presented, it may be remanded, with leave to amend pleadings and take further evidence. (Combs v. Hodge, 21 How. 397; Estho v. Lear, 7 Peters, 130.) When a person retires from office while a writ of error to a judgment refusing a mandamus is pending, the suit must be dismissed (United States v. Boutwell, 17 Wall. 604); and if he retires after the writ of error has been sued out, his successor cannot be substituted as a party. (United States v. Boutwell, 16 Wall. 604.) An erroneous decree will not be reversed on the appeal of a party who is not prejudiced thereby. (Campbell v. Pratt, 2 Peters, 354.)

§ 220. Cases where matter in dispute exceeds one hundred dollars.-The writ of error or appeal provided by the preceding section may be allowed in any case where the value of the matter in dispute, exclusive of costs, is less than one thousand dollars, but more than one hundred dollars, upon the petition in writing of either party, accompanied by a copy of the proceedings complained of, and an assignment of errors, exhibited to any justice of the Supreme Court, if said justice is of opinion that such errors involved question of law of such extensive operation as to render a decision of them by the Supreme Court desirable. The allowance in such case shall be by the written order of said justice, directed to the

FED. PROC.-43.

clerk of the Supreme Court of said district, to allow the appeal and issue the writ of error. (Rev. Stats., sec. 706.)

Note. The appeal will be dismissed if no principle of law of extensive application is involved. (Campbell v. Reed, 2 Wall. 198.) So if judgment is for less than one hundred dollars a writ of error cannot be sued out, although the amount claimed was more than that sum. (Wise v. Columbian T. Co., 7 Cranch, 276.)

§ 221. Appeals from the court of claims.-An appeal to the Supreme Court shall be allowed on behalf of the United States, from all judgments of the court of claims adverse to the United States, and on behalf of the plaintiff in any case where the amount in controversy exceeds three thousand dollars, or where his claim is forfeited to the United States by the judgment of said court, as provided in section one thousand and eighty-nine. (Rev. Stats. sec. 707.)

Note.-An appeal is a matter of right which the court cannot prevent and which a party may exercise at his own volition. (United States v. Adams, 6 Wall. 103.) The United States may appeal from an adverse judgment of the court of claims where that court is by law required to take jurisdiction of a claim against it and judicially determine the case. (Vigo's Case, 21 Wall. 648; Ex parte Zeller, 9 Wall. 244.) So when a claim is referred to the court of claims by a joint resolution (Dickelman v. United States, 9 Ct. of Cl. 320); but if a claim is merely referred by act of Congress to ascertain a particular fact to guide the United States in the execution of its treaty stipulations, an appeal will not lie. (Ex parte Atocha, 17 Wall. 439.) An appeal will not lie from order passed upon a change of attorneys (Dismare v. United States, 9 Ct. of Cl. 1); or an order refusing a new trial. (Ex parte Russell, 13 Wall. 664.) When equitable jurisdiction is conferred in a special case by a special act, no statement of

facts on appeal is necessary, this section not applying to such case. (Harvey v. United States, 4 Morr. Trans. 699.) When the United States appeals, only the claim allowed is brought up. (United States v. Hickey, 17 Wall. 9.) When the court of claims fails to find a material fact, the judgment will be reversed; or when the amount that the party is entitled to recover is not set out in the findings (United States v. Claus, 94 U. S. 73); and a refusal to find a material fact may be excepted to. (United States v. Adams, 9 Wall. 661.) In the exercise of its general jurisdiction appeals lie to the Supreme Court from judgments of the court of claims. (United States v. Jones, 119 U. S. 476.) An appeal taken before the right of appeal has expired is not vacated by the appropriation by Congress of the amount necessary to pay the judgment. United States v. Jones. 119 U. S. 476.) This section authorizes an appeal to this court in behalf of the United States from all judgments of the court of claims adverse to the United States. (United States v. Mosby, 133 U. S. 273; United States v. Davis, 131 U. S. 40.) Neither the court of claims nor the Supreme Court of the United States can determine any claim against the United States, except in cases defined by Congress. (United States v. Gleeson, 124 U. S. 255.)

Under this section of the Revised Statutes, no appeal lies from a judgment of the court of claims against the United States, "pro forma for purpose of appeal," for less than $3,000. (United States v. Gleeson, 124 U. S. 255.) Nothing can be reviewed on appeal but questions of law. (Mahan v. United States, 14 Wall. 109.) The judgment of the court of claims as to the legal effect of the ultimate circumstantial facts in a case may be reviewed in the Supreme Court. (United States v. Pugh, 99 U. S. 265.) The rule with regard to findings of fact has no reference to a case of equity jurisdiction conferred by a special act. In such case, where appeal lies, this court must review the facts and the law as in other equity cases appealed from. (Harvey v. United States, 105 U. S. 671.) If the court of claims refuses to find as prayed, the prayer and refusal must be made part of the record, that the court may determine whether to send it back for a finding.