by the act of 1872, the statutes and decisions concerning the removal of causes? While the practice acts of the state may prevail as to pleadings, etc., under the United States of 1872 they cannot .enlarge or change the United -States acts concerning removal of causes from state courts. The amount in dispute still to be what plaintiff claims, and not what by counter claim the defendant may demand. Motion to remand sustained.
WEAR 'V. MAYER.
(Cweuit CfJ'U/I't, E. D. Mi88OU1'i.
WRIT OF ERROR-NOTICE-REV. ST. § 4981.
A writ of error will not be allowed from the circuit to the district court, in bankruptcy proceedings, unless the plaintiff in error shall have given the notice required by of the Revised StatSAME-TRIAL WrfHoUT JURY.
A judgment cannot be reviewed in th!l Circuit court upon a writ of error, when the cause, by consent of the parties, was tried before the judge of the district court without a jury.-tEn.
Writ of Error. ,W. L. Scott and D. W. Wear, for plaintiff in error. . . B. Homer and L. B. Kellogg, for defendant in error. W MCCRARY, C.J. This was an action at law in the district .cpurt, brought by Mayer, as assignee in bankruptcy of one Wellington Stewart, to recover the value of certain gOOCE .alleged to have been obtained by plaintiff in error from Stew.art by way of fraudulent and illegal preference. A jury was waived, and by consent of parties the issues of fact were subto .the court, the finding and judgment were for the .assignee, .and the cause has been into this court by of error. The exceptions shows the findings of by the court in the nature of a. special verdict, and also
testinnny, to::;ether with th(} court's ruling
thereort, exceptions to the same. CounseI-fof the aBSignee moves to dismiss the writ of error, for the reason that this court has n01jurisdiction of the case. In support of this mo.., tion it is insiSted that the plaintiff in error should have given notice as required by section of the Revised Statutes of the United States. That section provides as follows: "No appeal shall be allowed in any case from the district to the circuit court unless it is claimed and notice given thereof to the clerk of the district court, to be entered with the record of the proceedings, and also to the assignee or creditor, as the case may be, or to the defeated party in equity, within 10 , days after the entry of the decree or decision appealed from, nor' unless the appellant, at the time of claiming the same, shall give bond iilthe manner required in cases ofappealsin suits in equity; nor shall any writ of error be allowed unless the party claiming it shall comply with the provisionlil of law regulating the granting of such writs." In the case of Ih8. 00. v.OomBwek, 16 Wall. 266-7, the supreme court construes this section as follows: "Taken literally, the 10 days' limitation does not extend to writs of error, but the better opmion is, in view of the fact that writs of error and appeals are associated together in'the first clause of the section, that the word ·appeal,' at the commencement oftha second clause, means the same as · review' or 4 revision,' and tha.t it was intended to include the writ of error as well as appeal, as the whole section Beems to contemplate a more expeditious disposition of the cause in the appellate court than that described in the judiciary a.ct, or the act to amend the judiciary system." Following this clear intimation of the supreme court, I should, even if there was' no other question of jurisdiction presented by this record, feel constrained to sustain the motion to dismiss. But that motion is urged upon another ground, which I proceed to consider. It is insisted that the cause having been tried before the judge of the district court, sitting in place of a jury, by donsen.t of both parties, the judgment cannot be reviewed in the circuit court upon a; writ of error. The finding of an issue of fact by the coUi:t upon the evidence, either with'or without the consent of parties, was a proceed-
ingaltogether unknown in the common law j and it is well settled that, in the absence of a statute authorizing that mode of proceeding, no exception can be taken to any opi:tlion of the court upon admission or rejection of testimony, or upon any other question of law which may grow out of the evidence where no jury is empanelled. Campbell v. Boqreau, 21 How. 226; Blair v. Allen; 3 Dillon, 101 j Kelsey v. Forsythe, 21 How. 85 j Geld v. Frontir, 18 How. 135 j BuN' v. DeB MoineB, etc., 1 Wall. 99. . The doctrine of these cases is not disputed by counsel for plaintiff in error, and he admits that they are (lonclusive of the question, unless the provisions of section .914 of vised Statutes of the United States are. applicable to and decisive of the controversy. That section provides that "the . practice, pleadings, and forms. and mooes of proceeding in ca.U!'les, than equity and cau,ses, in, the cirouit and district courts, shall confopn,aa near asxnay be, to prMtice, plea.dings, and ,(lond, modes of proceedings existing at the ;time in the: .ord, of the. s.tate within :which such,. circuit or courts . .', . are of court to ,It is very clear thljl,.t th\s' aectiQIl goes qq jfqrthl'l,r tQpro"vi,qe agep.eral rule regulating .practice ;ap.dpro!ledllre. in the federa,l CQ1Uts, in the ,of any eXllfess c<?ng;!iessional .enlloctment upon the subject. .not ,by iJ;nplication repeal any previous act of, congl'ess expressl;}t requi,ring a par.ticular modeofproceedin:gin any givencas6 or clas80f cases· . Section 566 of the Revised Statutes (which, in my judgment, .was not repealed by the later act embodied in section 914) provides that "the trial of issues of fact in the district courts, in all causes except cases in equity and cases of admiralty and maritime jurisdiction, and except as otherwise provided in proceedings in bankruptcy, shall be by jury." Section 649 of the Revised Statutes provides that "issues of fact in civil cases in any circuit court may be tried and determined by the court, without the intervention of a jury, whenever the parties, or their attorneys of record, file with the clerk a stipula· tion in writing waiving a. jury." This provision,however,
cannot be extended to proceedings in the qistrict court, but, on the contrary, leaves in full force the statute above cited, which requires that the trial of all issues of.fact in that court (with -certain enumerated exceptions not material to this question) shall be by jury. . It follows, from these considerations, that a writ of error does not lie, in a case like the one under consideration, to re-examine and revise the action of, the district court, and the writ is accordingly dismissed for want of jurisdiction.
'V.' POTTER. ;.
(OircUit; Court, D. -Rhqd4 Islana..' .:,' . '"
.', i. 1!'ALsE ' IMPlUSONMENT=TRBSPASS. ' ';',:," ( A judgmen' ,debtQr,. wb,o been froDl .,e,i\her, underchapter 216,Gj3n,St, ,R. 1" for the neglect of plain,.tiff board, or midet' sootion5, c. 213;' riot hikeir; in . execution within 30 dayS' liftlii '11nal; judgment against! him. cannot'be lawfully arrested again upon an alias executio,n, or upon mesne proceS8, in an action upon the'same ju(lgment. . .. 2. SAME-WHO LIABLE IN TREfjPASfil: . . . . , ." . . If, after sm:h ·the defendant 'be again imprlsoned' an alias execution, the plaintiff and his attorney are liable1Jl trespass, 1 but clerk, when there is nothing on the record ,t'8 insb'uct him that thE, defendant had been imprisoned for more than' go days, nor the is by the precept. " .
That the defendant was illegally arrested and detained througp a mistake of law, or miscalculation of time, which was shared by all the parties, is a fact which goes far in reduction of damages.
Ohapter 216 and section 6, c. 213, General Statutes of ,Rhode Island, construed.
Chas. A. Wilson, for plaintift. Ervin T. Case, for defendant Viall. Dexter B. Potter, for self and defendant Steere.