Sizer v. Many. is less than $2,000, for the purpose of having some question settled that involves the construction of the patent acts. Hogg v. Emerson, 6 How. 439, 478; Wilson v. Sandford, 10 How. 99. The court below, by allowing the first writ of error, which brought up the original judgment for a revision of the merits of the case, had exhausted all the discretion that the statute confers; and the question of allowing the plaintiff's costs to be taxed nunc pro lunc, and inserted in the judgment, had nothing to do with the construction of the patent laws. Again, this court cannot take jurisdiction of this writ of error, because, 2. The order of the court below, although in form a final order or judgment, is, in fact and substance, an interlocutory order. The part of the order of which the plaintiffs in error complain, is that allowing the costs; and this was asked and allowed as a proceeding nunc pro tunc, and therefore was in contemplation of law prior to the final judgment from which the first writ of error was prosecuted. That part of the order which allows the execution, in case the writ of error is not prosecuted within ten days, is not a final judgment, in the sense of the Judiciary Act. Mr. Robb made the following points: 1. The amount in dispute between the parties exceeds the sum of $2,000, although the amount of costs allowed by the court below to be inserted in the judgment, by way of amendment, is less than that sum. The necessary result of the allowance of the amendment is to subject the plaintiff to the payment of $2,300, and upwards. 2. The defendant in error cannot by a voluntary remittitur of the excess above $2,000, against the consent of the plaintiffs in error, defeat their right to a writ of error from this court. 3. This court will not regard the order of the court below, allowing the amendment as a proceeding nunc pro tunc, and as of the October term, 1848, of that court, if thereby the right of appeal to this court will be defeated. 4. The proceedings of the court below, in the execution of the mandate, are the subject of revision by this court. And it is error in the inferior court to grant any relief whatever after the mandate, or to examine it for any other purpose than exccution. Ex parte Sibbald, 12 Pet. 492. And the order or judgment purporting to be pursuant to and in execution of the mandate will be reviewed by this court. And if it appear by the record that such order is at variance with the mandate, the court will exercise jurisdiction for the purpose of examining into the grounds of such variance. The variance in this case is matter of substance. In contemplation of law, a Sizer v. Many. judgment for a sum expressed as damages and "costs to be taxed," or taxed at is a judgment for damages alone, and execution can issue only for that sum. Cook et al. v. Brister, 4 Har. 73, and cases cited. This court will exercise jurisdiction over such proceedings, although the additional relief erroneously granted in the court below be less in amount than $2,000. 5. This cause is now for the first time properly before this court upon the entire record, and the previous writ of error and the proceedings thereon in this court were without jurisdiction, because the judgment of the Circuit Court upon which it was brought was not final. When costs are taxed upon a judgment, such taxation is to be considered as the period at which final judgment is pronounced. Salter v. Slade, 3 Nev. & M. 717; Butler v. Bulkeley, 8 Moore, 104; 1 Bing. 233; Godson v. Lloyd, 1 Gale, 244; Wright v. Lewis, 4 Jur. 1112, B. c.; Blackburn v. Kymer, 1 Chas. Marshal, 278. And the order of the court allowing the costs to be taxed should be treated as the completion of the judgment of the Circuit Court in the cause. 6. The present writ of error, therefore, is properly allowed by the court below in the exercise of the discretion conferred by the 17th section of the act of July 4, 1836. Mr. Chief Justice TANEY delivered the opinion of the court. A motion has been made to dismiss the writ of error in this case for want of jurisdiction. The case as it comes before us is this: Many, the defendant in error, in the year 1848, recovered a judgment in the Circuit Court for the District of Massachusetts, against the plaintiffs in error, in an action for the infringement of certain letters-patent. The verdict and judgment was for less than $2,000, but the writ of error to remove the case to this court was allowed under the patent law of 1836. From some, oversight or accident the costs were not taxed in the Circuit Court before the transcript of the record was transmitted to this court. And the judgment as it stood upon the transcript was for the damages awarded by the jury, and costs of suit-leaving a blank space open for the insertion of the amount of the costs. The judgment of the Circuit Court was affirmed at the December term, 1851, and the usual mandate sent down directing execution. Upon the receipt of the mandate by the Circuit Court the defendant in error applied for leave to have the costs taxed and the amount inserted in the blank left for that purpose in the original record of the judgment. The motion was refused. And thereupon the defendant in error at December term, 1852, applied to Sizer v. Many. this court for a mandamus directing the court below to tax and allow his costs in the original action, amounting, as he alleged, to $1,811.59. But the court refused the motion, upon the ground that a mandamus could not lawfully be issued to a Circuit Court to guide its judgment in the taxation of costs. At a subsequent term of the Circuit Court, the defendant in error renewed his motion, for an order allowing the taxation of these costs and their insertion in the original judgment; and the court thereupon allowed the taxation of costs, and directed the amount above mentioned to be inserted in the original judgment. But the court at the same time allowed a writ of error from their decision, and ordered that this second writ of error should operate as a supersedeas of the execution prayed for, if sued out within the time fixed by law. It is this writ of error that is now before the court, and which the defendant in error has moved to dismiss. It has been settled, by the decisions of this court, that after a case has been brought here and decided, and a mandate issued to the court below, if a second writ of error is sued out it brings up for revision nothing but the proceedings subsequent to the mandate. None of the questions which were before the court on the first writ of error can be reheard or reëxamined upon the second; and there is nothing therefore now before the court but the taxation of costs. 7 Wheat. 58; 12 Pat. 488, 492. The sum taxed being less than $2,000, no writ of error will lie under the act of 1789. This act gives no jurisdiction to this court over the judgment of a Circuit Court, where the judgment is for less than that sum. Neither can the allowance of the writ by the Circuit Court give jurisdiction, where the only question is the amount of costs to be taxed; and the amount allowed is less than $2,000. The discretionary power in this respect vested in the circuit courts by the act of July 4, 1836, sec. 17, is evidently confined to cases which involve the construction of the patent laws, and the claims and rights of patentees under them. But the amount of costs which either party shall be entitled to recover is not regulated by these laws. The costs claimed are allowed or refused in controversies arising under the patent acts, upon the same principles and by the same laws, which govern the court in the taxation of costs in any other case that may come before it. same laws, therefore, must be applied to them in relation to the writ of error, and must limit the jurisdiction of this court as in other cases. The The writ of error must therefore be dismissed for want of jurisdiction. But as the question raised in this case may often occur in the circuit courts; and it is important that the prac Piquignot . The Pennsylvania Railroad Co. tice should be uniform, it is proper to say, that we consider the decision of the Circuit Court allowing those costs to be taxed after the receipt of the mandate from this court, to have been correct, and conformable to the general practice of the courts. The costs are perhaps never in fact taxed until after the judgment is rendered; and in many cases, cannot be taxed until afterwards. And where this is the case the amount ascertained is usually, under the direction of the court, entered nunc pro tunc as a part of the original judgment. And this mode of proceeding is necessary for the purposes of justice, in order to afford the necessary time to examine and decide upon the several items of costs, to which the successful party is lawfully entitled. Order. This cause came on to be heard on the transcript of the record, from the Circuit Court of the United States, for the District of Massachusetts, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged, by this court, that this cause be, and the same is hereby dismissed for the want of jurisdiction. PIERRE CLAUDE PIQUIGNOT, PLAINTIFF IN ERROR, V. THE PENNSYLVANIA RAILROAD COMPANY. Under the twenty-second section of the Judiciary Act of 1789, this court cannot reverse the judgment of the court below, for error in ruling any plea in abatement, other than a plea to the jurisdiction of the court. In Pennsylvania it is not usual to make a record of the judgment in any legal form. But there is no necessity that the courts of the United States should follow such careless precedents. Where a suit was brought in which the plaintiff was described aş a citizen of France, against the Pennsylvania Railroad Company, without any averment that the defendants were a corporation under the laws of Pennsylvania, or that the place of business of the corporation was there, or that its corporators, managers, or directors were citizens of Pennsylvania, the absence of such an averment was fatal to the jurisdiction of the court. THIS case was brought up, by writ of error, from the Circuit Court of the United States for the Western District of Pennsylvania. The facts in the case are stated in the opinion of the court. It was submitted, upon printed arguments, by Mr. Kennedy and Mr. Alden, for the plaintiff in error, and Mr. Snowden, for the defendants in error. But as the point of jurisdiction was not mentioned in the arguments, which were directed exclusively to other points, it is not thought necessary to give them. Piquignot . The Pennsylvania Railroad Co. Mr. Justice GRIER delivered the opinion of the court. The caption of this suit, and the declaration, describe the plaintiff as a citizen of France, but contain no averment as to the citizenship of the defendant. Nor does it state whether "The Pennsylvania Railroad Company" is a corporation or a private association, or the name of an individual. The declaration avers that the defendants are transporters of emigrants for hire, and undertook to convey the plaintiff and his wife from Philadelphia to Pittsburg, but did it in such a negligent and careless manner that his wife was frozen to death on her passage. The defendant pleaded in abatement, another action pending for the same cause of action between the same parties, in the District Court of Alleghany county. To this plea the plaintiff demurred; and the court gave "judgment upon the demurrer in favor of the defendants." Whereupon the plaintiff brought this writ of error. The question raised by the plea in abatement, in this case, is one of considerable importance, and on which there is some conflict of opinion and decision, but the judgment of the court below on the plea is not subject to our revision on a writ of error. The twenty-second section of the Judiciary Act, which defines what decrees or judgments in civil actions may be made the subjects of appeals or writ of error, provides, "that there shall be no reversal on such writ of error, for error in ruling any plea in abatement other than a plea to the jurisdiction of the court." The question of jurisdiction has not been made the subject of plea or exception, nor is it necessary, where it is patent on the face of the record. The judgment of the court, so far as the record is concerned, docs not distinctly show whether the court quashed the writ on the plea in abatement, or dismissed the suit for want of jurisdiction, as it might well have done. In Pennsylvania, it is not usual to make a record of the judgment in legal form. The word "judgment" for the party in whose favor it is, being the usual minute made by the clerk, from which a formal record of judgment may be made, but seldom or ever is made. It stands as a symbol to represent what the judgment ought to be, and therefore can never be erroneous. But there is no necessity that the courts of the United States should follow such careless precedents. On a demurrer the court will look to the first error in pleading, and if the declaration does not show that the court has jurisdiction of the parties, it may dismiss the cause on that ground. In this case the declaration states the plaintiff to be a citizen of France, but gives no character as to the citizenship of the defendant. The name is most probably not intended to |