Rev. St. U. S. § 999, requires that, when a writ of error is issued by the supreme court, the adverse party shall have at least 30 days' notice.

O. D. Barrett, for plaintiff in error. J. G. Zachry, for defendant in error.

MILLER, J. This is a motion to dismiss, the ground for which is that the citation was served and made returnable less than 30 days after the writ was granted. We do not think that is a sufficient ground to dismiss the writ of error, whatever may be the ground for relief.

HUNT v. BLACKBURN.
(April 9, 1888.)

1. APPEAL-JURISDICTIONAL AMOUNT-PRACTICE-DISMISSAL.

A case submitted on printed arguments will be dismissed where no evidence of the value of the subject of the suit appears in the record.

2. SAME-MOTION TO REINSTATE-PRACTICE.

A motion to reinstate such case upon affidavits as to value will be continued with leave to file further affidavits where the appellee has not had sufficient notice, and the affidavits of appellant are not satisfactory.

Appeal from the District Court of the United States for the Eastern District of Arkansas.

J. B. Haskell, for appellant.

MILLER, J. After an examination of the record in this case, which was submitted on printed arguments, we have not been able to find any evidence of the value of the land in controversy which is the subject of this suit. It is therefore dismissed for want of jurisdiction.

Mr. Haskell, on the 26th April, 1888, submitted a motion to reinstate the cause, accompanied by affidavits of the value of the property in dispute.

(April 30, 1888.)

MILLER, J. This case was dismissed by the court on April 9, 1888, because there was no evidence of there being a sufficient amount in controversy to give this court jurisdiction. A motion is now made to reinstate it, and affidavits submitted on the part of the appellant intended to show that the value of the land in controversy is $5,000. Although notice was given to the opposite party by telegraph, there has been no sufficient opportunity or time for him to produce counter-affidavits, nor are we entirely satisfied with the sufficiency of those produced by the appellant. This motion to reinstate the case is therefore continued until the next term of the court, with leave for either party to file additional affidavits on this subject.

*

END OF VOLUME 8.

INDEX.

NOTE. A star (*) indicates that the case referred to is annotated.

Accident Insurance.

See Insurance, 6-8.

Accounting.

AGISTMENT.

Substituted agreement.

1. Under a contract of agistment, cattle were to be wintered on hay, straw, and stalkfields, and in summer to be fed on corn, and

Of administrators, see Constitutional Law, the defendant agreed to so feed them that

16.

Acknowledgment.

they would increase in weight an average of 450 lbs. each before the time for delivery. During the winter several of the cattle died,

Of deed, see Deed, 1, 2; Husband and Wife, and it was apparent that others would unless 3-6.

Action.

better fed, whereupon it was agreed that they should be let into the corn, and that defendant should be released from his obligation to

See Limitation of Actions; Pleading; Re- increase the weight of the cattle to the exmoval of Causes.

Against an assignee, see Bankruptcy, 1.

corporations, see Corporations, 2. state, see Constitutional Law, 19-21. For breach of contract, see Agistment, 2. infringements, see Patents for Inventions, 52.

On policy, see Marine Insurance, 6-8. replevin bond, see Replevin, 1-4. Particular forms of action, see Assumpsit; Collision; Death by Wrongful Act; Divorce; Ejectment; Mandamus; Negligence; Quieting Title; Replevin; Specific Performance.

tent originally agreed. Held, that the giving of more nutritious food by the defendant, and his discharge by the plaintiffs from obligation to increase the weight as originally stipulated, constituted a good consideration for the substituted contract.-Teal v. Bilby,

239.

Construction.

ment a number of steers were not on hand,

if any steers should die, the hides should be 2. A contract of agistment stipulated that, preserved as evidence of death. After agistand the hides were not produced, but there was evidence to show that defendant had preTo annul patent, see Public Lands, 30-38. recover duties paid, see Customs Duties,quested them to accept delivery. Held, that recover duties paid, see Customs Duties, viously produced them to plaintiffs, and rethe offer to count the hides, if proven, might show that defendant had the number of hides alleged, and that, if all the steers were thus accounted for, defendant should not be held responsible for them.-Id.

12-15.

ADMIRALTY.

See, also, Collision; Marine Insurance;
Salvage; Shipping.

Costs.

To limit their liability to the value of the vessel, the owners had her appraised under the provisions of Rev. St. U. S. §§ 4283-4289. They then filed a stipulation to perform the final decree in the case. Held, that the costs of the circuit and district courts, and the allowance of interest upon the amount of the stipulation from the day it was filed in court, rested in the discretion of the court below. The Maggie J. Smith, 159.

Adverse Possession. Color of title, see Ejectment, 2.

Agency.

See Principal and Agent.

appealable as are those enumerated in section 804.-Inland & Sea-Board Coasting Co. v. Hall, 397.

4. An order of court that if a party shall perform certain acts within a specified time he will be granted relief, and, if not, his case will be determined adversely to him, is not an appealable final decree.-Barker v. Craig, 1175.

Jurisdictional amount.

5. A judgment was rendered in the district court of Arizona for $4,000, and interest. When affirmed by the supreme court of the territory the judgment and interest amounted to over $5,000. Held, that in determining the jurisdiction of the United States supreme court on appeal, the value of the matter in dispute is to be determined by the amount due at the time of the judgment of the supreme court of the territory, from which the appeal to this court was taken.-Zeckendorf of the circuit courts to pay into the treasury v. Johnson, 261. 6. Rev. St. U. S. § 844, requiring the clerks any surplus of fees and emoluments which their returns to the attorney general show to exist over and above the compensation and allowances, is not a "revenue law," within the contemplation of section 699, subd. 2, which provides for a writ of error, without regard to the amount in dispute, upon “any final judgment of a circuit court * in any civil action brought by the United States for the enforcement of any revenue law thereof." -United States v. Hill, 308.

*

tion, the facts therein stated, showing an insufficiency in the jurisdictional amount, could be considered by the court as part of the record.-Id.

2. A junior mortgagee filed a bill, in the circuit court, against the mortgagor and a prior mortgagee, to foreclose his mortgage, and establish his right to redeem from the prior mortgage. The defense was that, by foreclosure of the prior mortgage, his right to redeem had been cut off, and the property sold free of his lien. The decree found that his right to redeem had not been cut off; that his mortgage was still a valid lien; that the 7 On appeal to the United States supreme purchaser at the foreclosure sale, and others, court, motion to dismiss the writ of error for were entitled to redeem from the junior mort- want of jurisdiction was made upon a stategage, by paying the amount due thereon, at a ment of facts filed as "Plaintiffs' exceptions. time to be fixed by a further decree; that, if Allowed," and which the record entry showed there was no such redemption, the junior was "the bill of exceptions presented to the mortgage should be foreclosed, and a sale of plaintiffs, and allowed by the court, before the property "had, under a decree to be en-judgment." Held that, in ruling upon the motered, " etc.; that, if no one redeemed, the property be sold pursuant to such decree as might thereafter be entered, and the proceeds paid to the several parties as thereafter might be determined; and that the cause be referred 8. Where the value of the land in controto a master to find and report the amount to versy was alleged by the principal defendant be paid by the parties making the redemption, to be $4,000, in his sworn answer, and the and the amount due on both mortgages. The court found it to be $5,000, defendants will not decree concluded: "This decree being inter- be allowed to present affidavits showing its locutory, it is ordered that said cause stand value to be $7,000, in order to give the United continued for further order and decree." States supreme court jurisdiction of the ap Held, that the decree was not final, but inter-peal, under act Cong. March 3, 1885, requiring locutory only, and that an appeal to the su- the value to be over $5,000 for that purpose.preme court would not lie therefrom.-Burlington, C. R. & N. Ry. Co. v. Simmons, 58. 3. Rev. St. U.S. § 804, relating to the District of Columbia, empowering a trial judge, in his discretion, to entertain motions for new trials, upon exceptions taken at the trial, does not limit the cases in which an appeal may be taken from his decision, on such motions, to the three cases enumerated. Construing that section in connection with section 772, giving an appeal from special to general term from any order, judgment, or decree, "if the same involved the merits of the action or proceeding," rulings on motions for new trials based upon other grounds, such as that the verdict is against the weight of evidence, are equally

Talkington v. Dumbleton, 335.

9. In an action in a circuit court upon a contract of license to make a patented article, where defendant, admitting the contract, raises the issues, which the court determines, of infringement and the validity of plaintiff's patent, an appeal will lie, regardless of the amount in controversy, under Rev. St. U. S. § 699, giving appellate jurisdiction to the supreme court in any case touching patentrights."-St. Paul Plow-Works v. Starling, 1327.

10. An action was originally brought for cattle of the value of $6,000, but before judg ment a settlement as to part of them was had, and the remainder were sold for less than

1.

$5,000. Held, the supreme court of the United | 5 of the above rule, the appeal would be disStates had no jurisdiction to hear the cause. -Cox v. Western Land & Cattle Co., 162.

11. Act Cong. approved Feb. 16, 1875, § 3, (18 U. S. St. at Large, 315,) fixing the amount necessary to give jurisdiction to the United States supreme court at a sum in excess of $5.000, exclusive of costs, applies to suits where the United States is a party.-United States v. Broadhead, 1191.

missed on motion.-Benites v. Hampton, 254. 17. Where parties stipulate to submit a cause without oral argument, and no reference is made to rule 20 of the United States supreme court, which permits the submission of printed arguments, within the first 90 days of the term, that rule will not be applied on suggestion by one party, against the protest of the other, since the stipulation will be fulfilled if the submission be made when the case is reached in its order.-Glenn v. Fant, 398. Record.

18. The evidence in a former suit had by stipulation been made admissible in this suit, but the appellants failed to incorporate it in the record on appeal. Held that, if the appellees desired the benefit of such evidence, they should have brought up by certiorari any necessary parts of the record which the v. Fisher, 834. appellants had omitted to bring up.-Hoskin

12. Complainant sued to foreclose a mortgage. In April, 1884, the bill was dismissed on its merits as to some of the debts secured by it, and as to the balance was referred to a Complainant appealed, but never docketed it in the supreme court. October 10, 1885, the court entered a decree, and allowed an appeal, but did not fix the amount of the bond until February 8, 1886. June 1, 1886, complainant filed an appeal-bond, approved 19. Where an appeal was returnable at the by the court, and the case was docketed Oc-term ending May 4, 1885, but was not docketed tober, 1886. No citation was ever served. until January 17, 1886, and the transcript was Held, that the appeals were inoperative be- not lodged in the office of the clerk until after cause not docketed before the end of the next the return-term, the appeal will be dismissed. term of the supreme court after appeal al- The failure to docket it in time is not excused lowed, and the appearance of counsel to move by the fact that the clerk below agreed to file a dismissal was no waiver of the citation.- the record with the clerk of the supreme court, Radford v. Folsom, 334. and the same was left with him for that purpose.-Fayolle v. Texas Pac. Ry. Co., 588. Rehearing.

13. Where the court of claims dismisses both petition and counter-claim, and both parties appeal, and plaintiff fails to have his appeal docketed during the return-term, it will be dismissed for want of due prosecution. On authority of The S. S. Osborne, 105 U. S. 447. -United States v. Burchard, 832.

Bond.

14. A citation upon an appeal to the United States supreme court is sufficient, without any taking of security, to constitute the allowance of an appeal such as will give that court jurisdiction; and if security be not taken in accordance with Rev. St. U. S. § 1000, the irregularity may be subsequently cured. -Brown v. McConnell, 559; Stewart v. Masterson, 561.

15. A motion to vacate a supersedeas, or for an order declaring that the appeal-bond filed in the case does not operate as a supersedeas, will be denied as unnecessary, where the writ of error was not sued out or served within the time required by the statute in order that the bond operate as a supersedeas.-Western Air Line Const. Co. v. McGillis, 1390.

Briefs.

III. PRACTICE.

20. When a case has been decided by a divided court, a rehearing will not be granted when no important constitutional question is involved.-Shreveport v. Holmes, 1389.

IV. REVIEW.

What reviewable.

21. Where, in a suit on letters patent, the circuit court states that it considered only two claims, and holds those claims valid, and infringed, and the final decree applies only to those claims, and plaintiff does not contend in his brief that any other claim is infringed, the supreme court will consider only those two claims, though in the proofs plaintiff undertook to show that three other claims were infringed.-Crawford v. Heysinger, 399.

22. An equity court submitted certain issues to a jury, and adopted their findings. Held, that the appellate court will not consider formal exceptions to rulings in the course of the jury trial.-Wilson v. Riddle, 255. Objections not raised below.

23. Civil Code Or. §§ 221, 229, provide for a 16. A case was brought by writ of error to reference upon the written consent of the the United States supreme court. There was sent was given, objections cannot be first parties. Held, that where no written conno assignment of errors in the transcript re-made on appeal.-Dundee Mortgage & Trust turned with the writ, as required by Rev. St. Invest. Co. v. Hughes, 377. § 997. The brief, in violation of rule 21 of the United States supreme court, contained no specification of errors, no statement of the case presenting the questions involved with reference to the pages of the record in support thereof, and failed to quote the evidence whose rejection or admission was complained of. Held that, in accordance with the discretionary power vested in the court by section

24. In order that errors may be taken advantage of on review, the objections must have been raised in the court below.-Northern Pac. R. Co. v. Mares, 321. Presumptions.

25. In ejectment, the appellate court will assume that the premises awarded in the judgment are embraced in the description