8 Wall. 511, 19 L. 482, Ex parte Graham, 10 Wall. 543, 19 L. 982, Stickney v. Wilt, 23 Wall. 164, 23 L. 54, Cleveland Ins. Co. v. Globe Ins. Co., 98 U. S. 376, 25 L. 204, and Confiscation Cases, 1 Woods, 229, F. C. 3,097. 6 Wall. 773-787, 18 L. 813, CAVAZOS v. TREVINO. Evidence. In construing Spanish grant, attendant and surrounding circumstances, at time it was made, were held admissible, p. 784. Cited and applied in Good v. Martin, 95 U. S. 95, 24 L. 343, holding rule applicable to contracts generally; Scanland v. Porter, 64 Ark. 473, 42 S. W. 898, where question was raised as to whether party was a maker or indorser of a particular instrument. See note, 3 Am. Dec. 574. Public lands.- Practical interpretation placed upon a Spanish grant by the parties thereto, is entitled to great weight when construing doubtful clauses, p. 785. Distinguished in Mayor v. Starin, 106 N. Y. 19, 12 N. E. 637, where practical construction had not been uniform. Boundaries. In determining extent of grant, the quantity of land specified, as well as boundaries named and surveys made, is to be considered, p. 785. Appeal and error.— - Judgment will not be reversed for improper exclusion of evidence, which, if admitted, could not have changed result, p. 786. Reaffirmed in Runkle v. Burnham, 153 U. S. 224, 38 L. 697, 14 S. Ct. 840. Miscellaneous.- Cited incidentally in Cavazos v. Trevino, 35 Tex. 159, case growing out of same cause as principal case. 6 Wall. 788-795, 18 L. 740, STRONG v. UNITED STATES. Army and navy.- Sureties on purser's bond, stationed at a navy yard, are liable for his defaults in accounting for money remitted to him as purser, although purser had been required to perform duties which would have been performed by navy agent, had one been stationed at yard, p. 790. United States.- Private books of government disbursing agents are inadmissible to control accounts as kept by accounting officers of treasury department, p. 795. United States.- Unofficial letters of officer of treasury department are inadmissible in suit against disbursing agent to contradict, or even explain the official adjustment of accounts as shown in duly certified transcript, p. 795. Not cited. TO THE FOUR VOLUMES CONTAINED IN THIS BOOK, 70, 71, 72, 73. ACCRETIONS. 2. When Texas was admitted into the Union, Idem, 1. Before there can be a right to accretions there | such alienage was terminated. must be an estate to which the accretions can attach. 1. When Texas was a foreign country, until office found, an alien was competent to hold land against third persons. Osterman v. Baldwin, 730 APPEAL AND ERROR. EVIDENCE, 12, 16-23, 26, 35. 1. GENERALLY. 2. APPEAL AND ERROR, PRACTICE ON. 1. GENERALLY. 730 3. The statement in a judgment that it is "payable in gold and silver coin, for duties," though unnecessary, cannot affect the validity of the judgment. 4. Where an appeal, pending in the district court from a decree of the commissioners to settle California titles, was transferred to the circuit court, an appeal lies to this court from the decree of the circuit court. 111 U. S. v. Circuit Judges, 5. The whole case cannot be transferred to this court upon a certificate of division of opinion. Daniels v. Railroad Co. 224 6. Where the questions certified are: whether, in point of law, upon the facts as stated and proved, the action could be maintained; and whether the jury should be instructed that, under the facts as proved, the plaintiff could not recover, the questions certified are not such as this court can consider. 224 Idem, 7. This court will not revise decrees of a court below merely on a doubt as to the correctness of its judgment, raised on the credibility of witnesses or the weight of conflicting testimony. Newell v. Norton, 271 8. Where usury is not set up and no objection was taken to the rulings of the court below allowing interest, it must be presumed that the court decided correctly. 305 Newell v. Nixon, 9. A judgment in the circuit court of the United States in an action upon a promissory note must be brought to this court by writ of error, not by appeal. 550 Jones v. La Vallette, 13. Where no exception appears in the record to the admission of testimony, objection to the same will not be considered. Cavazos v. Trevino, 813 14. The right of appeal attaches equally to all judgments of the circuit court. Ex parte McCardle, 816 15. An appeal lies to this court from the judgment of the circuit court in cases of habeas corpus. Idem, 816 16. Every question of substance which the circuit court could decide upon the return of the habeas corpus, including the question of its own jurisdiction, may be revised here on appeal from its final judgment. Idem, 816 17. Where the complainant claimed title under a settlement certificate under the act of September 27th, 1850, and the decision of the state court was against the title, the complainant was entitled to his writ of error to bring the judgment of the state court under the review of this court. Silver v. Ladd, 828 18. An appeal from the commissioner to the district court is essentially an original suit, in which new evidence is given and the entire case is open. Grisar v. McDowell, 863 19. Questions not decided in the state court will not be examined in this court. Hamilton Mfg. Co. v. Massachusetts, 904 20. Clear and necessary intendment that the question was raised and must have been decided to have induced the judgment, is all that is required. Idem, 2. APPEAL And Error, PrACTICE ON. See PRACTICE, passim. 904 1. Where the writ and citation, with the record, were returned here and filed, and the cause docketed before the motion to dismiss, a motion to dismiss, under the 9th rule, cannot be entertained. Sparrow v. Strong, 49 2. On a motion to dismiss, the court will look to the regularity of the writ and the fact of jurisdiction. Idem, 49 3. Where a demurrer to a declaration in the circuit court is improperly sustained or overruled, and judgment is rendered for the wrong party, the case may be re-examined here upon writ of error without any formal bill of exceptions. Rogers v. Burlington, 79 4. On failure to give notice of appeal from the decree of the commissioners in a Mexican land case, "the appeal is for all legal purposes in fact dismissed." Beard v. Federy, 88 5. An appeal under 10 of the act of March 3, 1851, to ascertain and settle private land claims in the state of California, is subject, in regard to its return and the citation, to the provisions of the judiciary act of 1789 and the additional act of 1803. Castro v. U. s. 163 6. An appeal where a copy of the record was not sent to this court at the next term became void, and the citation subsequently issued was without avail. the district attorney; as the transcript was filed and the case docketed at the next succeeding term, the case was regularly before the court, under the exception to the general rule. Idem, 212 14. Leave will not be given to discontinue a writ of error on account of the sickness of associate counsel. McGuire v. The Commonwealth, 164 15. This court will grant leave to withdraw an appearance whenever asked, but will not require the calling of the plaintiff with a view to the dismissal of the writ of error. Idem, 164 16. After the withdrawal of the appearance, the defendant in error, under the 16th rule, may have the plaintiff called and the suit dismissed, or may open the record and pray an affirmance. Idem, 164 17. A general appearance supplies the defect of a citation on appeal. U. S. v. Armejo, 247 18. Such general appearance, after being entered, cannot, after the lapse of a term, be altered by the clerk to a special appearance; nor be withdrawn without leave of the court. Idem, 247 19. Where no argument has been submitted for the plaintiff in error, the court infers that the exceptions have been abandoned. Duvall v. U. S. 252 263 24. In equity, the defense of want of jurisdiction must be presented by a plea or demurrer, and not by answer. Idem, 263 25. A title defectively stated is cured by the verdict. Idem, 263 26. The practice on writ of error under the judiciary act is the same as on like writ at common law, except as modified by acts of Congress, or by the rules of this court. 268 27. Service of the writ of error is made by lodging a copy of it in the clerk's office, where the record is. Idem, 268 28. Service of the writ, and giving bond with sureties to secure the judgment, make the writ to operate as a supersedeas. Idem, 268 U. S. v. Dashiel, 29. Plaintiff may bring error to reverse his own judgment, but he must give bond for costs. Idem, 268 30. Partial satisfaction of the judgment is not a bar to a writ of error, and does not impair the jurisdiction of this court. 268 31. A writ of error need not be allowed by a judge. Idem, 32. Where the citation was dated before the date of the judgment but was issued after its rendition, the date is a mere clerical error. Idem, 377 33. The fact that another writ of error and another citation, not served, were issued, cannot pre judice the writ and citation which were duly issued and served. Idem, 377 34. The judiciary act does not require that the judge shall put his approval of the appeal bond in Idem, 377 35. A writ of error cannot be treated as a nullity because sufficient security is not given. Idem, 11. Exceptions to that rule are allowed, as where the appellant without fault on his part is pre-writing, vented from obtaining the transcript by the fraud of the other party or by the order of the court or by the contumacy of the clerk. Idem, 212 12. Where the question as to the pendency of the appeal cannot be determined without inspection of the record, appellants may apply to the clerk or district attorney for a transcript of the record. Idem, 212 13. Where the appellants applied to the clerk, who would not furnish it, and they then applied to 377 36. Where the writ of error was duly sued out and served, bond given, citation issued and served, and the record brought up and filed in this court at the next term a motion to dismiss will be denied 377 37. Where the record was not filed within the Idem, United States v. Adams, 792 Idem, 57. Omission to serve the citation before the return day of the writ is fatal. 863 58. Citation served on the 1st of December, before the return of the writ, is served in time. Waters v. Barril, 878 59. When it was returnable with the writ on the first day of the term the defendants had thirty days, by the statute, to appear. Idem, 878 60. The service on one of the joint defendants is good, even if the other is dead. Idem, 878 61. In order to make a writ of error a supersedeas, the law requires that the bond be filed within ten days. Patterson v. De La Ronde, 884 62. Where no exceptions to master's report were filed the finding of the master is as conclusive here as it was in the court below. Canal Co. v. Gordon, 894 63. Where the court below had no jurisdiction of this case, the decree will be reversed, and the cause remanded to it, with directions to dismiss the 947 case. U. S. v. Alire, 46. Subsequent proceeding, to render it effectual, ATTACHMENT. does not touch its validity. Idem, 792 47. It is not a ground to dismiss such an appeal, that the statement of facts found by the court and its conclusions of law thereon, are not a sufficient compliance with the rule of the Supreme Court on that subject. Idem, 792 48. The original writ of error should always be returned to this court with the transcript of the record. Mussina v. Cavazos, 810 49. The transcript which the clerk sends here, is the return to the writ, and should be accompanied by it. Idem, 810 50. Rights acquired under a valid writ of process, cannot be defeated by the loss or destruction of the writ, if its existence, and the acts done under it, can be substantiated by other testimony. Idem, 810 51. It is sufficient that the parties are correctly described in the writ as they must appear and be styled in this court, although the writ does not state who was plaintiff and who was defendant below. Idem, 810 52. Approval of security upon citation may be inferred from the fact of the sureties being sworn to their sufficiency by the judge who signed the citation. 828 53. When pending a writ of error, the defendant in error died, and the writ was dismissed, application should be made to the court below to revive Silver v. Ladd, the suit in the name of the widow and heirs of the deceased; and then a new writ of error can be issued. McClane v. Boon, 835 54. If the court should refuse, then it would be necessary to issue it in the name of these representatives, serving on them the citation to appear at the next term. 55. Where in one case three persons are plaintiffs in error and the citation contains four, and in the other case the names in the citation are altogether different from those in the writ of error, and the bond recites but one person as plaintiff in error, when there are three; both cases must be dismissed. Kail v. Wetmore, Same v. Douglass, 862 862 56. A writ of error not sealed until eleven days after the judgment does not operate as a supersedeas, and cannot be amended. 799 |