dower) was not discussed, as the judgment was reversed, for 1800. want of a sufficient description of the parties to the suit, on the authority of Bingham v. Cabot, 3 Dall. 382. and Turner v. The Bank of North-America. ..nt. But an important point of practice was previously settled, relative to the mode of ascertaining the value of the matter in dispute, in actions like the present. For the plaintiff in error, it was admitted, in answer to an objection, that the value of the matter in dispute did not appear upon the record; but it was urged, that, from the nature of the subject, the demand of the plaintiff could not ascertain it; nor from the nature of the suit (like a case of ejectment, where damages are only given for the ouster) could it be fixed by the finding of a jury, on the judgment of the Court. 3 Bl. Com. 35, 6. As, therefore, there was no act of congress, nor any rule of the Court, prescribing a mode to ascertain, in such cases, the value in dispute, that the party may have the benefit of a writ of error, it was proposed to continue the cause, to afford an opportunity to satisfy the Court, by affidavits of the actual value of the property. By the COURT: Be it so. Let the value of the matter in dispute be ascertained by affidavits, to be taken on ten days notice to the demandant, or her counsel in Georgia. But, consequently, the writ of error is not to be a supersedeas. Ingersoll and Dallas, for the plaintiff in error. Blair et al. Plaintiffs in Error, versus Miller et al. WRIT RIT of error from the Circuit Court of Virginia. The judgment was rendered in the Circuit Court on the 28th of May 1799, and a writ of error issued returnable to August term 1799; but the record was not transmitted, nor the writ returned into the office of the clerk of the Supreme Court, till the 4th of February 1800. Swift objected to the acceptance and return of the record and writ: And, By the COURT: The writ has become a nullity, because it was not returned at the proper term. It cannot, of course, be a legal instrument, to bring the record of the Circuit Court before us for revision. (1) (1) See post. 22. Course v. Stead et al. Rutherford 1800. 4d 22 11h 32 147 341 Rutherford et al. Plaintiffs in Error, versus Fisher et al. RROR from the Circuit Court of New-Jersey, sitting in Equity. It appeared, that the defendants in the Circuit Court had pleaded the statute of limitations to the bill of the complainants; and that the plea was over-ruled, and the defendants ordered to answer the bill. On this decree the present writ of error was sued out, and Stockton (of New-Jersey) moved to quash the writ, because it was not a final decree, upon which alone a writ of error would lie, 1 vol. 61, 62. s. 22. E. Tilghman, for the plaintiff in error, acknowledged the force of the words "final judgment," in the act of congress; and submitted the case without argument. CHASE, Justice. In England a writ of error may be brought upon an interlocutory decree or order; and until a decision is obtained upon the writ, the proceedings in the Court below are stayed. But here the words of the act, which allow a writ of error, allow it only in the case of a final judgment. By the COURT: The writ must be quashed with costs. ΤΗ Blaine versus Ship Charles Carter et al. HIS was an appeal from the Circuit Court of Virginia; and the preliminary question discussed was, whether such a process could be sustained? After argument, The COURT decided, that the removal of suits, from the Circuit Court into the Supreme Court, must be by writ of error in every case, whatever may be the original nature of the suits. E Course et al. versus Stead et Ux. et al. RROR from the Circuit Court of the Georgia district, sitting in Equity. On the record it appeared, that upon the 5th of May 1795, an order had been made, in the case of Stead et al. executors of Stead, v. Telfair et al. the legal representatives of Rae and Somerville (1) "that 3634l. 14s. 7d. sterling, with in"terest at 5 per cent. from the 1st of January 1774, to the 5th "of May 1795, deducting interest from the 19th of April 1775, "till the 3d of September 1783, be paid to the complainants "in that suit, with 5 per cent. on the amount of principal and in (1) The order was made when BLAIR, Justice, presided. The deduction of interest during the war, (this being a British debt) has not received the sanction of all the federal Judges. See 2 Dall. Rep. 104. in note. terest, terest, for making the remittance to Great Britain. That the 1800. partnership property of Rae and Somerville admitted by the de"fendants to be in their hands, be first applied to the payment of "the complainants. That the lands belonging to J. Rae or J. "Somerville, deceased, referred to in the answers of the several "defendants, and the title deeds of which they admitted to be in "their possession, be sold by the marshal, and the proceeds be "applied to satisfy the decree; the deeds to be deposited with "the clerk in three months." On the 15th of November 1796, a second order was made by consent (PATERSON, Justice, presiding) upon the report of the clerk, that, on the 4th of January 1796, there remained due to the complainants 11,196,77 dollars, "that the partnership pro(6 perty of Rae and Somerville, in the hands of Telfair be sold, and "the bonds, &c. delivered over under a general assignment. That "if these assets are not sufficient to pay the debt, the remainder "of Somerville's property be sold; and, after paying a prior "judgment, shall be applied to the debt of the complainants. "That a bond admitted by W. Stephens, one of the defendants, "to be in his hands, given by R. Whitfield & Co. to F. Rae, ❝ senior, be delivered to the complainants. That certain negroes, "in the custody of S. and R. Hammond, and F. Habersham be "sold, and applied to the payment of the complainants' debt." On the 2d of May 1797, Elizabeth Course, executrix of Daniel Course, was made a defendant, upon motion of the solicitor for the complainants; and on the 2d of April 1798 the supplemental bill was filed, which gave rise to the present writ of error, and on which a subpoena issued only against Elizabeth Course. This bill set forth the original bill of Stead et al. v. Telfair et al.; the orders and decrees, above stated; and the out standing balance on the 4th of April 1798, amounting to 8,479,58 dollars. It then alleged "that . Rae, senior, was seised, in his lifetime, of a "tract of 450 acres of land, which was subject to the decree in "favour of the complainants; and that Elizabeth Course held the "said tract of land unjustly, and without title. And it concluded "with praying a discovery of the title, and surrender of the pre"mises in satisfaction of the decree; and that the other defen"dants may disclose assets, &c." On the 3d of April 1799, Elizabeth Course filed an answer to the supplemental bill, in which she set forth, "that she found "among her late husband's papers, a deed of the 5th of May 1792, "executed by F. Gourvoise, tax collector of Chatham county to “him, as purchaser at public auction, of the said tract of land, for "128/. 19s. 4d. for which a receipt was indorsed, and the deed "recorded on the 24th of October 1792. That in virtue of the "deed, possession was taken of the premises. That she believed "the land came to F. Rae, by devise, or descent, from his father, "was sold for non-payment of taxes, and was purchased, bond 1800. "fide, by her late husband, whose title, in fee, is warranted by "the tax laws of the state; and as such is claimed by the defend"ant for herself and children." sup The cause was heard, upon the former decree of 1796, the plemental bill and answer, before ELLSWORTH, Chief Justice, in May term 1799, when the COURT decreed, "that the pretended "conveyance be set aside, and held as void; and the land sold "to satisfy the debt of the complainants. Also, that certain ne65 groes in the possession of William Stephens and Joseph Haber"sham, executors of Samuel Elbert, be sold and applied to the "same object, &c." The errors assigned upon the record (which consisted of a recital of the two orders of Court, the supplemental bill and the proceedings on it, but not the original bill) were, in substance, the following: 1. It does not appear, that the partnership property was first applied to the payment of the claimants' debt, conformably to the decree of the 25th of May 1795: and, if so applied, it might have been sufficient. 2. The decree orders certain negroes in the possession of Habersham and Stephens, executors of Elbert, to be sold, whereas it was denied, that the negroes were in their hands, but it was admitted, that they were in the possession of the minor children of the said Elbert: and proof to the contrary was not made, nor were the children parties to the suit. 3. The negroes, presumed to be assets of J. Rae, are ordered to be sold, exclusively of property in the hands of the other defendants, without equality, or apportionment. 4. The facts stated in the answer are to be taken as true, since the complainants did not reply; and thence it appears, that the purchase of the land was bona fide, for a valuable consideration, under the sanction of a public officer, whose acts were annulled by the decree, without any evidence of fraud, or imposition." 5. The exhibits referred to in the supplemental bill (to wit the two orders of Court above-mentioned) were not filed with the bill, and were inadmissible as evidence. 6. That all the heirs, as well as the widow of Daniel Course should have been made parties, particularly the minors, who are under the peculiar protection of a Court of equity. 7. Real and personal estate are on the same footing, by the law of Georgia, equally under the management of executors, or administrators. And as there are other creditors to be affected by the decree, the legal representatives of Daniel Course should have been parties to the suit. 8. The facts, on which the decree was founded, do not appear on the record. 9. The Court had not power, under the circumstances of the case, to order the sale of real estate. Though Though this view of the record is given, for the sake of the 1800. points discussed and decided in the Circuit Court, the merits, on the errors assigned, were not discussed or decided in this Court; but the following points occurred. I. Ingersoll, for the defendants in error, objected, that the writ of error was not tested as of the last day of the last term of the Supreme Court; nor, indeed, of that term at ail; for, the Court had risen before the day of its teste. Dallas observed, in answer, that there was no rule, either legislative, or judicial, prescribing the date of the teste of a writ of error; that in Georgia it might not be practicable, in many cases, to know the last day of the term of the Supreme Court, whose session was not limited; that if the writ is issued, in fact, after the preceding term, and returned, sedente curia, to the present term, it is regular; and that it is not like the case of a term intervening, between the teste of a writ of error, and the delivery of the record to the clerk of the Court. (2) By the COURT: The objection is not sufficient to quash the writ of error. The teste may be amended by our own record of the duration of the last term; and it is, of course, amendable. II. Ingersoll objected, that the writ of error was not directed to any Circuit Court; for, its address was "To the Judges of the Circuit Court, holden in and for the district aforesaid:" whereas no district was previously named. Dallas, in reply, observed, that the district of Georgia, was indorsed on the writ, that the attestation of the record was in Georgia, and that the record returned was from the Circuit Court of the Georgia district. By the COURT: The omission is merely clerical. We wish, indeed, that more attention were paid to the transcribing of records; but there is enough, in the present case, to amend by; and, therefore, let the omission be supplied. III. Ingersoll objected, that the value of the matter in dispute does not appear upon the record, to be sufficient to sustain a writ of error. The land, which is the immediate subject of the supplemental bill, was sold for 128/. 19s. 4d. and that is the only criterion of its value exhibited to the Court. Dallas. The value of the property in dispute, must be its actual value, for the purposes of jurisdiction. The price at a forced sale, for taxes, many years ago, cannot rationally be taken for the actual value of the land, with its meliorations. The Court will, therefore, permit the plaintiff in error to ascertain the fact by affidavits, on notice to the opposite party. It was so done in Williamson ✔. Kincaid. VOL. IV. (2) See ante, Blair et al. v. Miller et al. By |