error will lie for the revision only of final judgments; and the period of limitation cannot therefore commence at the date of an interlocutory judgment. But a final judgment may be either absolute at the time it is given, as a judgment for the defendant, on a demurrer, or for the plaintiff on a plea in abatement, to the declaration; or it may be a judgment nisi, not to become absolute until a future day, the quarto die post, or on the last day of the term, as a judgment upon the verdict of a jury, or by default; and from what day, in the case of a judgment of the latter kind, does the statute begin to run?1 It is to be considered that until the judgment becomes absolute, it remains uncertain, in contemplation of law, and perhaps in fact, whether it will ever become so, and, consequently, whether a writ of error will become necessary. The more reasonable conclusion seems, therefore, to be, that the day on which a judgment becomes absolute, is that whence the limitation is to be computed. CHAP. 2. error not A writ of error is not to be deemed "brought," Writ of until it is filed in the court to which it is directed; brought and therefore, though the writ bear test within five years, if it be not filed within that period, it is barred. Brooks v. Norris, 11 Howard, 204. This is an important case, and it determines another question of 'It will be recollected that in the courts of the United States, all trials are at bar. Under the nisi prius system and common law practice, no order can be entered for judgment on a verdict until the next term of the court in bank, on the return of the postea; and then the order is nisi, for the purpose of affording the unsuccessful party by motion in arrest, or for judgment non obstante veredicto, or for a new trial, to show cause why the order should not be allowed to become absolute. And a like opportunity is in like manner afforded to the defendant in judgments by default. They are entered nisi on the return of the writ of inquiry, or the report of the clerk. The same reason exists for a like practice, in both cases, in the courts of the United States, and such, doubtless, is their practice in all the districts. In the New York districts it is regulated by rule. See Appendix, Rules 30 and 32, of the district court of the northern district, and Rule 6 of the circuit court. PART 5. practice of considerable interest. The judgment of the court was pronounced by the chief justice, and I shall need no apology for inserting the following extract from it. The statute bar may be taken advantage of "The writ of error is not brought in the legal meaning of the term, until it is filed in the court which rendered the judgment. It is the filing of the writ that removes the record from the inferior to the appellate court, and the period of limitation prescribed by the act of congress, must be calculated accordingly. The day on which the writ may be issued by the clerk, or the day on which it is tested, is not material in deciding the question. In this case, therefore, five years had elapsed before the writ of error was brought, and the limitation of time in the act of congress was a bar to the suit." "According to the English practice, the defendant in error must avail himself of this defense by plea. on motion. He cannot take advantage of it by motion; nor can the court take judicial notice of it, as the limitation of time is not an objection to the jurisdiction of the court. It is a defense which the defendant in error may, or may not, rely upon, as he himself thinks proper. But according to the established practice of this court, he need not plead it, but may take advantage of it by motion. The forms of proceeding in the English courts of error have not been adopted or followed in this court." Writ of * In this case the bar arising from the lapse of time, is apparent on the face of the record, and the defendant may take advantage of it by motion to quash or dismiss the writ." We are, in the next place, to consider that part of error when the statute which prescribes the conditions on which a writ of error shall operate as a supersedeas. It must, for this purpose, as we have seen, be sued out, and a superse deas. served by lodging a copy of it in the clerk's office CHAP. 2. for the adverse party "within ten days, Sundays exclusive, after rendering the judgment complained of." This regulation is virtually a statute of limitation, and it will be observed that the time from which the limitation is to be recorded, is designated by the same words that are used to fix the time at which the five years limitation is to commence. It would seem to follow, therefore, that the interpretation to be given to these words, ought to be the same in both cases, and I can discern no reason to the contrary. The just conclusion, then, seems to be that in this case as in the other, the time of limitation begins to run when the judgment is given, and has become absolute. served days after absolute. There is, moreover, a decision of the supreme court To be relative to the proper time for bringing an appeal, within ten which seems to favor this conclusion. The phrase of judgment the statute with respect to appeals is, "after passing the decree complained of;" and the word "passing" thus applied to appeals, seems to be, and doubtless was designed to be, equivalent to the term "rendering" as applied to judgments. In the case of Silsby et al. v. Foote (20 Howard, 290), above alluded to, a "final decision" is stated to have been made in the circuit court, on the coming in of the master's report on the 28th of August, 1854, and an appeal was taken within less than ten days thereafter; but the decree was special, and "was not settled or signed by the judge till the 11th of December, 1856;" and on that day, a second appeal was taken. At the December term of the supreme court, 1857, a motion was made in behalf of the appellee, to dismiss the second appeal, on the ground that a prior appeal had already been taken, and the question was, whether or not, the first appeal had been taken prematurely, and thereby ren PART 5. dered ineffectual. The court held that it had not; the decision made in August, 1854, being "the passing of the decree" according to the true interpretation of the act; and the court accordingly dismissed the second appeal as superfluous. 1 Supersedeas granted, when. When a writ of error has been regularly sued out within ten days after the judgment was given in the court below, and an execution has nevertheless been issued, a supersedeas may be granted by the supreme court, or by the court below. Stockton et al. v. Bishop, 2 Howard, 74. But where a writ of error, though seasonably issued, has been dismissed, and a second writ of error has been sued out, the court has no power to grant a supersedeas unless the second writ also was issued within ten days from the date of the judgment. Nevertheless, when a cause is reinstated after dismissal from a writ of error which was a supersedeas, the appellate court may in its discretion, grant a supersedeas on having the cause again brought before it on a The force of this decision is weakened, however, by the terms in which it is expressed; or, rather, by the declarations which accompany its annunciation. After stating its decision in the case before it, that an appeal may be regularly taken at any time after the decision is pronounced and entered on the minutes by the clerk, and that, if taken within ten days, it will stay execution, the court adds, "and we are also of opinion, that if taken within ten days after the decree is settled and signed by the judge, and filed with the clerk, that it is in time to stay the proceedings." It is no great fault of the reporter, therefore, that his syllabus is in the following words: "Where an appeal is taken within ten days from the rendition of the decree, it is in time to operate as a supersedeas; and so, also, if taken within ten days after the decree is settled and signed." With a slight amendment, by the substitution of the words, it is regular and will operate, &c., in lieu of the words "it is in time to operate," it is a faithful abstract of the language of the court. So that both of the two appeals that had been taken in the case before the court, were held to be regular, and each of them a supersedeas, although there was an interval of more than two years between them. It seems to follow, that with respect to appeals, a like latitude is to be allowed as to the five years limitation. second writ of error, because when reinstated, it would CHAP. 3. stand upon the first writ of error. This is the true interpretation of the case of Haldeman et al. v. Anderson, 4 Howard, 640. In the order granted in this case it is erroneously stated to have been made in virtue of the 14th section of the judiciary act of 1789, empowering the courts of the United States to issue writs of scire facias, habeas corpus, and all other writs not specially provided for by statute, which may be necessary, &c., and agreeable, &c. Hogan et al. v. Ross, 11 Howard, 294. So where an appeal was taken in a suit at common law within ten days after judgment, and an execution was nevertheless issued, the appeal being a nullity, it was error in the circuit court to supersede the execution, on the ground that the party appealing, on discovering his mistake, sued out a writ of error after the expiration of ten days. Saltmarsh v. Tuthill, 12 Howard, 387. CHAPTER III. OF THE PROCEEDINGS FROM THEIR COMMENCEMENT TO Plaintiff in error to find sure When a party deeming himself aggrieved by a judgment against him, which he is entitled to have reviewed by writ of error, desires to resort to that ties. remedy, the first thing it behooves him to do, is to find one or more responsible persons who are willing to become his sureties in the "security" which the statute requires. The statute is silent as to the form of the security. In England, where the plaintiff in error is also required to give security, it is in the form of a recognizance, and is called bail in error; but the engagement is held to be absolute, the bail not being permitted to exonerate themselves by the surrender of the principal. The established form in the courts bond. To give a |