How. 131.) The omission of an allegation of notice of otest in an action against the indorser of a foreign bill exchange is ground for reversal (Slocum v. Pomeroy, 6 anch, 221); and any fault which is a good ground for esting the judgment may be assigned as error (Slocum Pomeroy, 6 Cranch, 221); but no point arising on the adings or evidence that is not made and considered becan be urged in Supreme Court. (Brocket v. Brocket, How. 691.) An error in entering the case on the docket y be corrected by the record filed, and a mere clerical ission of a word in a prayer for an appeal will not be al. (Adams v. Law, 16 How. 144.) When a case is = properly presented, it may be remanded, with leave amend pleadings and take further evidence. (Combs Hodge, 21 How. 397; Estho v. Lear, 7 Peters, 130.) en a person retires from office while a writ of error to adgment refusing a mandamus is pending, the suit must dismissed (United States v. Boutwell, 17 Wall. 604); d if he retires after the writ of error has been sued out, successor cannot be substituted as a party. (United tes v. Boutwell, 16 Wall. 604.) An erroneous decree 1 not be reversed on the appeal of a party who is not judiced thereby. (Campbell v. Pratt, 2 Peters, 354.) § 220. Cases where matter in dispute ceeds one hundred dollars.-The writ of or or appeal provided by the preceding section y be allowed in any case where the value of the tter in dispute, exclusive of costs, is less than › thousand dollars, but more than one hundred lars, upon the petition in writing of either ty, accompanied by a copy of the proceedings plained of, and an assignment of errors, exhib1 to any justice of the Supreme Court, if said tice is of opinion that such errors involved stion of law of such extensive operation as to der a decision of them by the Supreme Court irable. The allowance in such case shall be by 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.)

of

§ 221. Appeals from the court 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

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

Under this section of the Revised Statutes, no appeal s from a judgment of the court of claims against the nited States, "pro forma for purpose of appeal," for less an $3,000. (United States v. Gleeson, 124 U. S. 255.) othing can be reviewed on appeal but questions of law. [ahan v. United States, 14 Wall. 109.) The judgment the court of claims as to the legal effect of the ultimate cumstantial facts in a case may be reviewed in the Sueme Court. (United States v. Pugh, 99 U. S. 265.) he rule with regard to findings of fact has no reference a case of equity jurisdiction conferred by a special act. such case, where appeal lies, this court must review e facts and the law as in other equity cases appealed ›m. (Harvey v. United States, 105 U. S. 671.) If the art of claims refuses to find as prayed, the prayer and usal must be made part of the record, that the court y determine whether to send it back for a finding.

(Mahan v. United States, 14 Wall. 109.) Where it does not find the amount of loss, its judgment will be reversed on account of an insufficient finding. (United States v. Clark, 94 U. S. 73.) Where it sounds all the evidence, but there was no legal evidence to establish such fact, this court must reverse the judgment. (United States v. Clark, 96 U. S. 37.) The Supreme Court cannot give the court of claims any directions as to what finding it shall make. (United States v. Child [“United States v. Adams"], 9 Wall. 661.)

§ 222. Time and manner of appeals from the court of claims.-All appeals from the court of claims shall be taken within ninety days after the judgment is rendered, and shall be allowed under such regulations as the Supreme Court may direct. (Rev. Stats. sec. 708.)

The limitation ceases to run from the time of application for an appeal, and subsequent delays will not prejudice the party. (United States v. Adams, 6 Wall. 101.) Such appeals must be taken within ninety days after the judgment is rendered, but this period is enlarged to six months by section 10 of the act in question. In our judg ment, the same right can be exercised by the United States in any case of the prosecution of a claim in the district or circuit courts of the United States under said act. (United States v. Davis, 131 U. S. 40.)

$223. Judgments and decrees of State courts on writs of error. — A final judgment or decree in any suit in the highest court of a State in which a decision in the suit could be had, where is drawn in question the validity of a treaty or statute of, or an authority exercised under, the United States, and the decision is against the validity, or where is drawn in question the validity, of a statute of, or an authority exercised under, any State on the ground of their being repugnant to the Constitution, treaties,

laws of the United States, and the decision is favor of their validity; or where any title, right, ivilege, or immunity is claimed under the Constition, or any treaty or statute of, or commission ld or authority exercised under, the United ates, and the decision is against the title, right, ivilege, or immunity specially set apart or aimed by either party, under such Constitution, eaty, statute, commission or authority,—may be -examined and reversed or affirmed in the Sureme Court upon a writ of error. The writ all have the same effect as if the judgment or cree complained of had been rendered or passed a court of the United States. The Supreme ourt may reverse, modify, or affirm the judgment decree of such State court, and may, at their scretion, award execution or remand the same the court from which it was removed by the it. (Rev. Stats. sec. 709.)

Jurisdiction is not conferred by consent. (Mills v. own, 16 Peters, 525.) It is requisite that it should be parent in the record that one of the questions arose, d that a decision was made thereon. (Crowell v. Ran11, 10 Peters, 368.) The allegation that a treaty has en misconstrued, in refusing to sanction a claim, is not fficient (Chouteau v. Marguerite, 12 Peters, 507), or a cision in accordance with the practice of the State urt. (Commercial Bk. v. Rochester, 15 Wall. 639.) It 1st appear from the record that the act or Constitution is drawn in question (Miller v. Nicholls, 4 Wheat. 311), the record should show a complete title under the eaty. (Hickie v. Starke, 1 Peters, 94.) It is sufficient from the facts stated such a question must have arisen arris v. Dennie, 3 Peters, 292), and that the act was sconstrued. (Davis v. Packard, 6 Peters, 41.) The estion must appear to have arisen by clear and necesry intendment (Ocean Ins. Co. v. Polleys, 13 Peters,