otherwise directs; but costs against the United States, its officers, and agencies shall be imposed only to the extent permitted by law. Costs may be taxed by the clerk on one day's notice. On motion served . within 5 days thereafter, the action of the clerk may be reviewed by the court."

In most jurisdictions in some cases the plaintiff has his choice of suing in a court of general jurisdiction, such as the High Court of Justice in England or superior or circuit courts in the United States, or in a less expensive court of limited jurisdiction, like the English county courts or the municipal courts in many American cities. If he chooses the more expensive form, he may even if successful lose his costs entirely or recover them only on the lower court scale. This is a matter of statutory regulation in the various jurisdictions concerned.

JUDGMENT NUNC PRO TUNC.1

Under certain circumstances judgment may be entered nunc pro tunc so as to be effective from a prior date. So an entry of judgment is proper, for example, when no judgment was rendered through the mistake or delay of the trial court which had power to enter judgment, or when judgment was rendered but never entered due to the carelessness of the court.2 The power thus to enter judgment is often important when the plaintiff dies after trial but before judgment is entered, where the action is one which abates with the plaintiff's death as in the case of an action for a personal tort in most jurisdictions.3

Judgment may be entered nunc pro tunc even after the expiration of the term of court in which judgment should have been rendered. When entered it is effective retroactively as between the parties and persons who take the subject matter of the suit from a party with notice or as donees, but not as against purchasers for value without notice.1

1 See 1 Freeman, Judgments (5th ed. 1925) §§ 121-139; Cook, "Corrective Entries Nunc pro Tunc," 3 Ia. L. Rev. 241, 426 (1928).

2 See H. Gund & Co. v. Horrigan, 53 Neb. 794 (1898).

3 Abatement of the action is avoided by entering judgment nunc pro tune as of a time when plaintiff was still living and "when the judgment might have been entered on the verdict." Currier v. Inhabitants of Lowell, 16 Pick. 170, 173 (Mass. 1834) (entry of judgment delayed by motion for new trial). See also Stickney v. Davis, 17 Pick. 169 (Mass. 1835); Wilkins v. Wainwright, 173 Mass. 212, 214 (1899).

4 See Clark & Leonard Invt. Co. v. Rich, 81 Neb. 321 (1908).

FEDERAL RULES OF CIVIL PROCEDURE (1938).

2

RULE 6 (c). The period of time provided for the doing of any act or the taking of any proceeding is not affected or limited by the expiration of a term of court. The 2 expiration of a term of court in no way affects the power of a court to do any act or take any proceeding in any civil action which has been pending before it.3

1 The title of Rule 6 is "Time"; that of paragraph (c) is, “Unaffected by Expiration of Term."

2 Second Preliminary Draft of Proposed Amendments to Rules of Civil Procedure for the District Courts of the United States (1945) 1,, here inserts "continued existence or."

3 As to the common-law effect of the expiration of a term of court on the court's power to relieve against a judgment, see United States v. Mayer, 235 U. S. 55 (1914).

APPELLATE REVIEW AT COMMON LAW

COKE ON LITTLETON (1628) 288 b.

"A writ of errour". This writ lyeth when a man is grieved by an error in the foundation, proceeding, judgment or execution, and there- 、 upon it is called, breve de errore corrigendo.. But without a judgment, or an award in nature of a judgment, no writ of error doth lie; for the words of the writ be, si judicium redditum sit, and that judgment must regularly be given by judges of record, and in a court of record, and not by any other inferior judges in base courts, for thereupon a writ of false judgment doth lye.1

FORM OF WRIT OF ERROR.2

Tidd, Forms of Practical Proceedings (7th ed. 1828) 501. GEORGE the Fourth, by the grace of God of the united kingdom of Great Britain and Ireland king, defender of the faith. To our right trusty and well beloved Charles Lord Tenterden, our chief justice assigned to hold pleas in our court before us, greeting: Because in the record and proceedings, and also in the giving of judgment, in a plaint which was in our court before us, by our writ, between A. B. and C. D. late of ——, of a plea of trespass on the case, (or, as the plea is,) as it is said, manifest error hath intervened, to the great damage of the said C. D. as by his complaint we are informed: We being willing that the error, if any there be, should in due manner be corrected, and full and speedy justice done to the parties aforesaid in this behalf, do command you, that if judgment be thereupon given, then without delay you distinctly and openly send, under your seal, the record and proceedings aforesaid, with all things touching the same, to us in our present parliament, (or, if the parliament be not then sitting, "at the next session thereof, to wit, on the day of next ensuing.

to be holden,") and this writ; that the record and proceedings aforesaid being inspected, we may further cause to be done thereupon, with the assent of the lords spiritual and temporal in the same parliament, for correcting that error, what of right, and according to the law and custom of England, ought to be done.

1 The writ of false judgment lay to county courts, national courts, and other courts not of record, for review by the Court of Common Pleas. For forms, for the writ and other proceedings thereon, see Tidd, Forms (7th ed.) 559-567.

2 This is the form for a writ of error to the King's Bench for review by the House of Lords. For other common law forms, see Tidd, Forms (7th ed. 1828) 499-504.

ANONYMOUS.

COURT OF KING'S BENCH. 1347.

Year Book 21 ̊ Edward III,1 9, pl. 25.2

NOTE that Thorpe came to the bar, and said how that one A had brought a writ of account against one B [in the court of Common Pleas] and was awarded an account; and said that a capias ad computandum issued against him [B], and then he said that B sued a writ to cause the record to come into the King's Bench, praying that he have error for the sake of disturbing the account; and prayed. that the record be not be removed until an account was had.

STONFORD [J.]. No more shall it; for the plea is not ended until he has accounted. Et ea de causa the Court granted him that the record should not be removed. Quod nota... 4

1 Edition of 1679.

2 Translation from the Norman French mainly following that in Loyd, Cases on Civil Procedure (1916) 822.

3 The old action of account involved two stages: (1) adjudication whether the plaintiff was entitled to an account, ending either in a final judgment for the defendant or, as here, in an interlocutory judgment quod computer that the defendant account; (2) the taking of the account before auditors, if the plaintiff won in the first stage, resulting in a final judgment for the plaintiff if the account showed a balance due him, otherwise in a final judgment for the defendant. The second stage was instituted by a capias ad computandum as execution of the interlocutory judgment quod computet. See Shipman, Common Law Pleading (3d ed. 1923) 146-147; Belsheim, "The Old Action of Account," 45 Harv. L. Rev. 466, 496-497 (1932). Cf. p. 131, n. 2, supra. See also 2 Tidd, Practice (9th ed. 1828) 1179.

4 At common law a writ of error lies only to review final judgments. See Metcalfe's Case, 11 Co. 38a (K. B. 1615) (like principal case); Countess of Warwick v. Lord Berkeley, Cro. Eliz. 644 (C. P. 1598) (interlocutory judgment in partition). Thus, error will not lie to an order overruling a plea in abatement. See Oliver Ditson Co. v. Testa, 213 Mass. 109 (1912); 2 Tidd, Practice (9th ed. 1828) 1141 (pleas to the jurisdiction). Or to an order granting a new trial. See Ray v. Fitch, 1 Root 290 (Conn. 1791). Cf. Magill v. Lyman, 6 Conn. 59 (1825). Or to a judgment of repleader. Carpenter v. Childs, 1 Root 181 (Conn. 1790). As to the test of finality, see Bostwick v. Brinkerhoff, 106 U. S. 3 (1882); Crick, "The Final Judgment as a Basis for Appeal," 41 Yale L. J. 539 (1932). See also Bennett v. Clemence, 3 Allen 431 (Mass. 1862); Waverly M. & P. Land Loan & Bldg. Assn. v. Buck, 64 Md. 338, 342 (1885).

In some states statutes allow appellate review of interlocutory orders under certain circumstances.

RAYMOND v. BARKER.

SUPERIOR COURT, CONNECTICUT. 1796.

2 Root 370.

ACTION of trespass, brought before a justice. The defendant pleaded title to the land—and the justice took a bond and certified the cause to the county court.

The plaintiff demurred to the plea of title. And judgment— That the plea was sufficient, and for the defendant to recover his cost.

The defendant appealed to the superior court; and now the plea was traversed, and upon the declaration and pleadings being read to the jury, who were empannelled to try said cause, the court discovered that there was no appeal taken but by the defendant, who recovered judgment in his favor in the county court, and could not be aggrieved by the judgment; and so had no right to appeal. And thereupon the court ordered the cause to be dismissed, because it was not regularly in this court.1

STATUTE OF WESTMINSTER II, c. 31 (1285).2

13 Edward I, St. 1, c. 31.

WHEN one impleaded before any of the Justices doth alledge an Exception, and prayeth that the Justices will allow it, which if they will not allow, if he that alledged the Exception do write the same Exception, and require that the Justices will thereto put their Seals in Testimony thereof, the Justices shall so do; and if one will not, another of the Company shall. And if the King,, upon Complaint made of the Justices, cause the Record to come before him, and the said Exception be not found in the Roll, and the Plaintiff shew the Exception written, with the Seal of a Justice thereto put, the Justice

1 Compare Seymour v. Belden, 28 Conn. 443 (1859).

At common law, where a joint judgment was rendered against several parties, all had to join in error. But if one or more refused to join, the others could proceed by summons and severance. In this procedure, "the other party issued a writ of summons, by which the one who refused to proceed was brought before the court and if he still refused, an order or judgment of severance was made by the court, whereby the party who wished to do so could sue alone". Masterson v. Herndon, 10 Wall. 416, 417 (U. S. 1870). This practice became obsolete in the state courts relatively early, but the requirement was enforced in the federal courts as late as Hartford Accident & Indemnity Co. v. Bunn, 285 U. S. 169 (1932). The necessity of summons and severance for appellate review of a joint judgment in the federal courts is eliminated by the Federal Rules of Civil Procedure, Rule 74.

2 The translation from the Latin is that of 1 Stat. at L. (Eng. 1811) 190. See 1 Holdsworth, History of English Law (6th ed. 1938) 223-224.