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Jurisdiction.-Answer and Pleas in Chancery.

118. Semble that the application may be made by motion, upon the foundation of ignorance at the time of the examination. Ibid.

2. Jurisdiction.

119. In case of a public nuisance, where a bill is filed by a private person, asking for relief by way of prevention, the plaintiff cannot maintain a stand in a court of equity, unless he avers and proves some special injury. City of Georgetown v. The Alexandria Canal Co., 12 Peters, 99.

120. The jurisdiction of courts of chancery, in cases of nuisance, may be exercised in those cases in which there is imminent danger of irreparable mischief before the tardiness of the law could reach it. Ibid.

Adams, without notice of the title of Flagg.-proofs; and upon this petition, leave is ordinaThat it was not of itself a wrongful act in Mann rily granted by the court. Gass v. Stinson, 2 to take the title from Walker and Fisher, and Sumner's C. C. R. 605. from the Frye heirs, in his own name, as it was his only security to compel Flagg either to abandon those purchases, or, if he insisted on his share, to repay the advances made. That the charges of notice of the plaintiff's title in the bill against Fuller are loose and indeterminate, amounting to a mere intimation, or suspicion, or belief; whereas there should have been an alle gation of full notice of the very title and claim of the plaintiff asserted in the bill.-That Fuller, at the time of his purchase of Mann, had no notice, actual or constructive, of the title of Flagg. That the deed from Mann to Fuller, although a mere quitclaim or release, must be treated as a bargain and sale, and other lawful conveyance, effectual to pass the whole estate, and entitling Fuller to protection as a bona fide 121. In equity, as in law, fraud and injury purchaser without notice, to the extent of the must concur to furnish ground for judicial action. purchase money already paid before notice of A mere fraudulent intent, unaccompanied by the plaintiff's title.-That Flagg is entitled to any injurious act, is not the subject of judicial one moiety of the premises purchased of Richard- cognizance. Fraud ought not to be conceived; son, Walker, and Fisher, and of the Frye heirs; it must be proved, and expressly found. Clarke and, in default of this, on account of the convey- | et al. v. White, 12 Peters, 178. ance to Fuller, to a moiety of the purchasemoney, as a substituted fund, deducting therefrom the sums paid by Mann to Walker and Fisher and the Frye heirs, and other expenses incurred in the premises.-That for the payment of his moiety of the purchase-money, the plaintiff has a lien on the land conveyed to Fuller, to the extent of the purchase-money which remained unpaid at the time of notice to Fuller of the plaintiff's title. Flagg v. Mann, 2 Sumner's C. C. R. 487.

111. A question of fact, which is essential to the decision of a case in equity, may be referred to a jury, to be tried upon an issue framed for the purpose. Ibid.

112. A court of equity will often pronounce that there is an equitable mortgage in cases where a court of law would be compelled to say there was no mortgage. Ibid.

113. A trust created by a parol contract, will be enforced in equity against a party who does not insist upon the defence of the statute of frauds. Ibid.

114. Courts of equity do not regard the forms of instruments, but look to the intent, and give to the acts of parties that construction which is consistent with the intent and with equity. Ibid. 115. A court of equity will not yield to technical rules of law, by which the intention of parties may be defeated. Ibid.

116. When a witness has been cross-examined by a party, with a full knowledge of an objection to his competency, a court of equity will not allow the party to raise the objection at the hearing. Ibid.

117. If a party would object to the competency or credibility of a witness in courts of equity, he must make a special application by petition to the court for liberty to exhibit articles, stating the facts and objections to the witness, and praying leave to examine other witnesses to establish the allegations in the articles by suitable

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122. The equity jurisdiction and equity jurisprudence, administered in the courts of the United States, are coincident and coextensive with that exercised in England, and are not regulated by the municipal jurisprudence of the particular state where the court sits. Fletcher v. Morey, 2 Story's C. C. R. 553.

3. Answer and Pleas in Chancery. 123. Where a demurrer might be put into a bill in equity, but, instead thereof, an answer is made, and the bill is dismissed on its merits, because the plaintiff does not show a sufficient title, the defendants are not entitled to costs. Brooks v. Ryan, 2 Story's C. C. R. 580.

124. An answer in equity to facts charged in the bill is to be taken to be true, until the contrary is clearly established. Hough v. Richardson, 3 Story's C. C. R. 659.

125. Where, in the answer to a bill in equity, it was set forth, that as the plaintiff was a bankrupt, and his assignee was not made a party to the bill, the plaintiff was not entitled to relief, it was held that the objection of bankruptcy should have been taken in limine by way of plea, and could not be insisted on to avoid exceptions taken by the plaintiff to the answer. Ibid.

126. In the present case, exceptions were taken by the plaintiff to the answer, on the ground that the statements of the defendants therein contained were not, "to the best of their knowledge, remembrance, information and belief," as required by the bill, and were imperfect and insufficient, and the exceptions were allowed by the court. It was held that the defendant was bound to answer as to his information, and remembrance, and belief, as well as to his knowledge. Ibid.

127. An answer responsive to allegations in a bill in equity, is positive evidence, and to be taken as true, unless disproved by the testimony of two credible witnesses, or of one credible wit

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Chancery Practice.-Equity of Redemption.

ness and facts entirely equivalent to, and as corroborative as another witness. Langdon v. Goddard, 3 Story's C. C. R. 1.

128. Where, in the answer to a bill in equity, an allegation was made, impeaching the bonâ fides and validity of a codicil to a will, which had been already approved and allowed by a court having competent and exclusive jurisdiction over the probate thereof, it was ordered that the allegations be expunged as being impertinent and immaterial. Ibid.

order which it may pass in a case before it. Ez parte Story, 12 Peters, 339.

137. Every court of equity possesses the power to mould its rules in relation to the time and manner of appearing and answering, so as to prevent the rule from working injustice. And it is not only in the power of the court, but it is its duty, to exercise a sound discretion upon this subject, and to enlarge the time whenever it shall appear that the purposes of justice require it. The rules in chancery proceedings in the circuit court, prescribed by the supreme court, do not, and were not intended to deprive the

129. Where, also, there was an allegation in the answer setting up an attempted settlement by the defendant with the plaintiffs, of the na-courts of the United States of this well-known ture and terms of which no account was given, and which was never acceded to by the plaintiffs, it was ordered to be expunged as immaterial and irrelevant. Ibid.

130. Where an interrogatory was put, as to "whether; on the 20th day of August, 1838, the said A procured and prepared the signature of the said B to a codicil, in which the said B bequeathed to the said A the said notes of C and D, and whether the said A retained the codicil after its execution;" it was held, that although the interrogatory was not so full and precise as it should have been, yet that it was sufficient to call for a full and explicit answer to its plain import, and as the answer was inexplicit and evasive, the defendant was ordered to make a full disclosure of the facts, and to pay the costs of the hearing on the exceptions; and leave was granted to the plaintiff to file additional interrogatories. Ibid.

131. A general answer in chancery overrules the pleas. Taylor v. Luther, 2 Sumner's C. C.

R. 228.

132. Where the plaintiff, in his bill in chancery, directly charged upon the defendant, that he had made and entered into a certain agreement, a simple denial by the defendant in his answer "according to his recollection and belief," is insufficient, and must be treated as a mere evasion. Ibid.

133. An allegation in an answer, which is not responsive to the bill, is not evidence; and the onus probandi is on the defendant to establish it. Flagg v. Mann, 2 Sumner's C. C. R. 487.

134. The rule in chancery is, if the answer of the defendant admits a fact, but insists on matter by way of avoidance, the complainant need not prove the fact admitted, but the defendant must prove the matter in avoidance. Clarke et al. v. White, 12 Peters, 178.

and necessary power. Ex parte Poultney et al. v. The City of Lafayette et al., 12 Peters, 472.

138. In suits in equity the proofs must, to be admissible, be to some allegations or facts charged in the bill or answer, and thus put in issue by the parties. Langdon v. Goddard, 2 Story's C. C. R. 267.

139. Therefore, where the bill set up a title under a will, and yet, it relied upon a title under certain codicils thereto, which were not alluded to in the bill, it was held, at the hearing, that the bill was fatally defective. Ibid.

140. Costs in equity are in the sound discretion of the court; but, in the ordinary course of practice, when a bill is dismissed, costs are not awarded to the plaintiff. 2 Story's C. C. R. 580.

141. Under the circumstances of this case, it was held, that each party must bear its own costs, but that the expense of printing the record must be divided between them. Ibid.

142. The court may, for the purpose of avoiding unnecessary delays, entertain a motion to amend a bill in equity, at the same time that exceptions thereto are filed, and may require the defendants to answer the amended matter and the exceptions together. Kittredge v. The Claremont Bank, 3 Story's C. C. R. 59.

EQUITY OF REDEMPTION.

1. If A advance money to B, and B thereupon convey land in trust, to convey the same to A in fee, in case A should fail to repay the money and interest on a certain day, and if B fail to repay the money on the day limited, and thereupon the trustees convey the land to A, B has 135. An answer, responsive to the allegations no equity of redemption. Conway's Ex'rs et al. and charges in the bill, will prevail in favour of v. Alexander, 7 Cranch, 218; 2 Cond. Rep. 479. the defendant as evidence, unless it be overcome 2. It is a rule in equity, that a judgment creby the testimony of two witnesses, or of oneditor at law, is entitled to redeem an incumwitness and corroborative circumstances. Lang- brance upon land, and thereby secure his legal don v. Goddard, 2 Story's C. C. R. 267. priority. United States v. Sturges, Paine's C. C. R. 525.

4. Chancery Practice.

3. The assignee of a mortgage, or other chose in action, takes it subject to the same equity 136. A bill of exceptions is altogether un- that it was subject to in the hands of the asknown in chancery practice; nor is a court of signor. And the rule, that it is only an equity chancery bound to inscribe in an order-book, residing in the original debtor, and not the equiupon the application of one of the parties, anties of third persons against the assignor, that

Equity of Redemption.

12. Where the mortgagee brings his bill of foreclosure, the mortgage will, after the same length of time, be presumed to have been discharged, unless circumstances can be shown to repel the presumption, as, payment of interest, a promise to pay, and an acknowledgment by the mortgagor that the mortgage is still subsisting, and the like. Ibid. 498.

have this effect, does not exclude a judgment | title in law, and none in equity, but to redeem creditor, claiming to redeem; he stands in the on payment of the debt and interest. Ibid. place of the debtor, and has his equity. An assignee who might have obtained notice, and ought to have sought it, stands in no better situation than if he had actually obtained it. Ibid. 4. A mortgage was given in reality to indemnify the mortgagee, but purporting to secure a sum of money payable in one year, and five years afterwards it was signed, the whole sum appearing from the instrument to be unpaid. 13. A bona fide purchaser under the mortHeld, that the circumstances of the case should gagor, with actual notice of the mortgage, oi have put the assignor upon an inquiry, from constructive notice by means of a registry, can which he would have learned the true conside-only protect himself by the lapse of time, or ration of the mortgage. Ibid. other equity, under the same circumstances which would afford a protection to the mortgagor. Ibid. 499.

5. Although a mortgage be absolute upon the face of it, a court of equity will inquire into the real purpose for which it was given, and apply it to that use. Ibid.

6. It is true that in discussions in courts of equity a mortgage is sometimes called a lien for debt. And so it certainly is, and something more; it is a transfer of the property itself, as security for the debt. This must be admitted to be true at law; and it is equally true in equity, for in this respect equity follows the law. It does not consider the estate of the mortgagee as defeated, and reduced to a mere lien, but it treats it as a trust estate, and, according to the intention of the parties, as a qualified estate, and security. When the debt is discharged, there is a resulting trust for the mortgagor. It is, therefore, only in a loose and general sense, that it is sometimes called a lien, and then only by way of contrast to an estate absolute and indefeasible. Conrad v. The Atlantic Ins. Co., 1 Peters, 441.

7. Where the mortgage deed contained a defeasance that the mortgagor should pay the debt according to the condition of a bond recited in the deed, by which it was payable on a day already past, at the time of the execution of the deed: "Held, that this circumstance did not avoid the mortgage deed in equity, where it was to be considered as a conveyance, absolute at law, but intended as a security merely, and to be treated in the same manner as an ordinary mortgage. Hughes v. Edwards, 9 Wheat. 489; 5 Cond. Rep. 648.

14. Such a purchaser is not entitled to have the value of the improvements made by him deducted from the proceeds of the sale of the mortgaged premises. Ibid. 500.

15. A mortgage in fee, conveys an estate at law, upon which a real action may be maintained. A release of the equity of redemption does not operate by way of merger of the estate conveyed by the mortgage, but as an extinguishment of the equity of redemption. Dexter v. Harris, 2 Mason's C. C. R. 531.

16. An administrator, who is also mortgagee of the real estate of the intestate, in his own right, is not liable to account, as administrator, for the money he receives on the sale of the estate as mortgagee, although he sells with general warranty. Such sale does not bar the equity of redemption of heirs. Dexter v. Arnold, 3 Mason's C. C. R. 284.

17. In the view of a court of equity, the rents and profits are incidents, de jure, to the ownership of the equity of redemption. Gordon v. Lewis, 2 Sumner's C. C. R. 143.

18. Query, If the purchasers of an equity of redemption can take the objection that the mortgage was upon an usurious consideration, or as plaintiffs, can have any relief in equity, without offering to pay the amount due. Gordon v. Hobart, 2 Sumner's C. C. R. 401.

19. A judgment of foreclosure was obtained by the executrix of the mortgagee, in 1826, in a suit against the original mortgagor. Long before this judgment, in 1819, the mortgagor had assigned all his title to redeem the premises to two other persons, under whom the plaintiffs

8. A court of equity looks to the substantial object of the conveyance, and will consider an absolute deed as a mortgage, wherever it is shown to have been intended merely as a secu-derived their title. Held, that this judgment can rity for the payment of a debt. Ibid. 495.

9. In the case either of a legal or equitable mortgage, the mortgagee may pursue his legal remedy by ejectment, and, at the same time, file his bill to foreclose the equity of redemption. Ibid.

10. A mortgagor cannot redeem after a lapse of twenty years, after forfeiture and possession by the mortgagee, (which period has been adopted in equity by analogy to the statute of limitations,) no interest having been paid in the mean time, and no circumstances appearing to account for the neglect. Ibid. 497.

11. The mortgagor, after forfeiture, has no

operate as a bar or estoppel only between the particular parties to it and their privies, and is res inter alios acta, and inoperative, as regards the plaintiffs, and that the possession under it is not subversive of their right to redeem. Ibid.

20. The act of Maine, of February 5th, 1821, ch. 39, provides that the right of redemption of the mortgagor, and all claiming under him, may be foreclosed by the mortgagee taking peaceable and open possession of the premises mortgaged, for the condition broken, in the presence of two witnesses. Held, that the possession under the writ of possession, in the presence of the sheriff, and the agent receiving it, was not a possession

Equity of Redemption.-Error, and Writ of Error. General Principles.

in the presence of two witnesses, in the sense of the statute, by which the plaintiff's rights are foreclosed. Ibid.

21. A mortgagee will not be permitted, in a court of equity, to set up an adverse possession to bar the right to redeem of his mortgagor, or of purchasers under him, unless the possession has been for twenty years; which constitutes an equitable bar, from lapse of time. Ibid.

22. If a transaction resolve itself into a security, whatever may be its form, and whatever name the parties may choose to give it, it is, in equity, a mortgage; and the parties cannot, by any averment or agreement, limit the rights of the mortgagor, or cut off his equity of redemption, after a limited period. Flagg v. Mann, 2 Sumner's C. C. R. 487.

23. Twenty years undisturbed possession, without any admission of holding under the mortgage, or treating it as a mortgage during that period, is a bar to a bill to redeem. But if within that period there be any account, or solemn acknowledgment of the mortgage as subsisting, it is otherwise. Dexter v. Arnold, 1 Sumner's C. C. R. 109.

24. An acknowledgment by the mortgagee, in his answer to a bill in equity between other parties, that it remains a mortgage, is a sufficient acknowledgment to allow a redemption. Ibid.

25. If the mortgagee has never taken possession during his lifetime, and the mortgage belongs, in Rhode Island, to his personal representatives, his heirs need not be made parties to the bill to redeem. Ibid.

26. A cestui que trust, under a mortgage, cannot ordinarily redeem. The trustees must be made parties to a bill, and a reason shown why they are not plaintiffs. Ibid.

27. If a mortgage be of different parcels of land, some of which have been sold by the mortgagee absolutely, and the others remain in possession, and the right to redeem as to the purchasers is given by lapse of time, this does not bar the remedy against the mortgagor, if otherwise well founded. lbid.

28. An equity of redemption of real property is liable, in Maryland, to attachment. Pratt v. Law, 9 Cranch, 456; 3 Cond. Rep. 460.

29. The equity of redemption of a mortgagor of land, in that part of the District of Columbia ceded by the state of Maryland to the United States, cannot be taken in execution under a fieri facias. At the time of the cession, the rule of the common law was the law of Maryland. Van Ness v. Hyatt et al., 13 Peters, 294.

ERROR, AND WRIT OF ERROR.

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1. General principles

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finding the value, cures the error. Brown v. Barry, 3 Dall. 367; 1 Cond. Rep. 165.

2. If the plaintiff in error do not appear, the defendant may either have him called, and dismiss the writ of error with costs, or he may open the record and pray for an affirmance. Montalet v. Murray, 3 Cranch, 249; 1 Cond. Rep. 516.

3. If the court should refuse to give an opinion when required, upon a point relative to the issue, and the jury should, notwithstanding, find a verdict in accordance with the opinion requested, there is no error of which the party can complain. Douglass et al. v. M'Allister, 3 Cranch, 289; 1 Cond. Rep. 537.

4. Where in a writ of error there had been an omission to test the same on the last day of the term, or on any day; the court, on motion, ordered an amendment to be made by the record of the duration of the term. Course et al. v. Stead et ux., 4 Dall. 22; 1 Cond. Rep. 217.

5. It is incumbent upon the plaintiff in error in the supreme court, to show that the court has jurisdiction of the cause. United States v. The Brig Union et al., 4 Cranch, 216; 2 Cond. Rep. 91.

6. A writ of error lies from the supreme court to the district court of the United States, for the Kentucky district, to remove a cause decided upon a caveat. Wilson v. Mason, 1 Cranch, 45; 1 Cond. Rep. 242.

7. If the counsel on neither side appear when the cause is called, the writ of error will be dismissed. Radford v. Craig, 5 Cranch, 289; 2 Cond. Rep. 260.

8. The supreme court will not compel the hearing of a cause, unless the citation be served thirty days before the first day of the term. Welsh v. Mandeville et al., 5 Cranch, 321; 2 Cond. Rep. 268.

9. It is not too late to allege as error in the appellate court, a fault in the declaration which ought to have prevented the rendition of the judgment in the court below. Any thing appear. ing on the record, which would have been fatal on a motion in arrest of judgment, is equally fatal upon a writ of error. Slacum v. Pomery, 6 Cranch, 221; 2 Cond. Rep. 351.

10. The supreme court will not quash an execution issued by the court below, to enforce its decree, pending the writ of error, if the writ of error be not a supersedeas. Wallen v. Williams, 7 Cranch, 278; 2 Cond. Rep. 491.

11. When a suit brought by a British subject, is carried up to the supreme court on writ of error, and pending the writ of error, war intervenes with Great Britain, the judgment will be affirmed, notwithstanding the existence of war. Owens v. Hanney, 9 Cranch, 180; 3 Cond. Rep. 346.

12. If the facts set forth in a special plea do not amount in law to a justification, yet if issue be joined thereon, and if the facts be found, as pleaded, it is error in the judge to instruct the 631 jury, that the facts so proved, do not in law, maintain the issue on the part of the defendant. Otis v. Watkins, 9 Cranch, 339; 3 Cond. Rep. 424.

1. Where the action is for foreign money, and the value is not averred, the verdict of the jury,

13. It is error for the orphans' court for the

ERROR, AND WRIT OF ERROR.

General Principles.

22. A cause of action defectively or inaccucounty of Washington, in the district of Columbia, to decide a cause against the answer of defend-rately set out, is cured by the verdict; because ant, if not denied by a replication and uncontradicted by evidence. Gettings v. Burch's Adm'x, 9 Cranch, 372; 3 Cond. Rep. 436.

14. A second writ of error has never been supposed to draw in question the propriety of the first judgment. Martin v. Hunter's Lessee, 1 Wheat. 304; 3 Cond. Rep. 575.

15. Under the twenty-fifth section of the judiciary act of 1789, ch. 20, giving an appellate jurisdiction to the supreme court of the United States, from the final judgment or decree of the highest court of law or equity of a state, the writ of error may be directed to any court, in which the record and judgment, on which it is to act, may be found; and if the record has been remitted by the highest court, &c., to another court of the state, it may be brought by the writ of Hoyt, 3 error from that court. Gelston et al. v. Wheat. 246; 4 Cond. Rep. 244.

to entitle the plaintiff to recover, all the circum-
stances necessary in form or in substance, to
make out his cause of action, so imperfectly
stated, must be proved at the trial. But where
no cause of action is stated, none can be pre-
sumed to have been proved. Renner v. The
Bank of Columbia, 9 Wheat. 581; 5 Cond. Rep.
691.

23. A judge cannot be required to declare the law on hypothetical questions, which do not be long to the cause on trial. He may refuse to give an opinion on such a point, and if the party propounding the question is dissatisfied with it, he may except to the refusal; which exception will avail him, if he show that the question was warranted by the testimony, and that the opinion he asked ought to have been given. But if he proceeds to state the law, and states it erroneously, his opinion ought to be revised; and if it can have had any influence on the jury, their verdict ought to be set aside. Etting v. The Bank of the United States, 11 Wheat. 59; 6 Cond. Rep. 216.

16. In writs of error, upon judgments already rendered, in personal actions, if the plaintiff in error die before assignment of errors, the writ abates at common law: but if, after assignment and 24. If evidence is offered and rejected by the proof errors, the defendant may join in error, proceed to get the judgment affirmed, if not court, and an exception taken, and upon the erroneous; and may then revive it against the duction of further proof the evidence is subserepresentatives of the plaintiff. But a writ of quently admitted, the judgment will not be reerror, in personal actions, does not abate by the versed even if the court below was wrong in death of the defendant in error, whether it hap-originally refusing the testimony. Hinde's Lessee pen before or after errors assigned; and the v. Longworth, 11 Wheat. 199; 6 Cond. Rep. personal representatives may not only be ad- 270. mitted voluntarily to become parties, but a scire facias may issue to compel them. Green v. Watkins, 6 Wheat. 260; 5 Cond. Rep. 87.

17. If either party, in real or personal actions, die pending the writ of error, his representatives in the personalty or realty may voluntarily become parties; or may be compelled to become parties in the manner prescribed by the rule.

Ibid.

18. The heir or privy in estate, who is injured by an erroneous judgment, may prosecute a writ of error to reverse it. Ibid.

25. As a general rule, the superior court, in reviewing the decision of the inferior court in admitting evidence, will confine itself to the specific objection raised in the court below. Ibid.

26. Where there is a joint judgment against several defendants, and one only sues out the writ of error, without joining the others, it is irregular; but if the others refuse to join in it. query, whether the party may not have summons and severance? Williams v. The Bank of the United States, 11 Wheat. 414; 6 Cond. Rep. 368.

19. A writ of error is a commission by which 27. Where the burden of proof of certain spethe judges of one court are authorized to examine a record upon which a judgment was given in cific defences set up by the defendant is on him, another court; and on such examination to re- and the evidence presents contested facts, an Cohens v. The State absolute direction from the court, that the matverse or affirm the same. ters produced in evidence by defendant were of Virginia, 6 Wheat. 264; 5 Cond. Rep. 90. 20. Where a state obtains a judgment against sufficient in law to maintain the issue on his an individual, and the court rendering such judg-part, and that the jury ought to render their verment overrules a defence set up under the constitution and laws of the United States, the transfer of the record into the supreme court, for the sole purpose of inquiring whether the judgment violates the constitution or laws of the United States, cannot be denominated a suit commenced or prosecuted against the state, whose judgment is so far re-examined, within the eleventh amendment to the constitution of the United States. Ibid.

21. An exception to the opinion of the court
is necessary, only, when the alleged error can-
Macker's
not otherwise appear on the record.
Heirs v. Thomas, 7 Wheat. 530; 5 Cond. Rep.

dict in his favour, is erroneous: and a judgment rendered upon a verdict purporting to have been given under such a charge, will be reversed; although the record was made up as upon a bill of exceptions, taken at a trial before a jury, upon the matters in issue, no such trial ever having taken place; and the case having assumed that shape by the agreement of the parties, in order to take the opinion of the court upon certain questions of law. United States v. Tillotson et al., 12 Wheat. 180; 6 Cond. Rep. 507.

28. A case may be brought to the supreme court of the United States, from the highest court of law or equity in a state, under the twenty-fifth section of the judiciary act of 1789, by a writ of

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