judgment, he would not have it without an appeal.1 But what if he could not appeal? If a libellant in the district court for assault and battery lays his ad damnum at one hundred dollars and recovers fifty, he can appeal and the defendant cannot.2 If he Stratton v. Jarvis, 8 Pet. 4; Houseman v. Sch. North Carolina, 15 Pet. 40, 50; Canter v. American Ins. Co. 3 Pet. 307, 318; Airey v. Merrill, 2 Curtis, C. C. 8; Allen v. Hitch, id. 147. In all these cases, with the exception of that of Canter v. American Ins. Co., the libellant did not appeal, and it was held that he was limited to the amount which he had recovered in the inferior court. In Canter v. American Ins. Co., the court had decreed restitution of the property to the claimant, but nothing was said as to damages. The libellant only appealed, and it was held that the claimant could not demand damages in the appellate court. In Allen v. Hitch, Curtis, J., speaking of these cases, said: "These cases show that the appellate court will neither increase the amount awarded below, nor consider a subject of claim there decreed upon and denied, unless the party who desires a reversal of the decree take an appeal." In The Water Witch, 1 Black, 494, two consignees libelled the vessel by separate libels, for damages done to the cargo, and the owner of the vessel libelled the cargo for freight. The district court found that the amount of damages exceeded the freight, and made a decree for the consignees for the amount of damage less the freight. From this decree the claimant of the vessel appealed, but the consignees did not. Held that the circuit court had the power to alter the decree, giving the consignees the amount of the damage done and the claimant the freight due. 2 33; Shirley v. Titus, 1 Sumner, 447. The rule being in all cases of this nature that the "matter in dispute" within the meaning of the statute is the amount claimed by the libellant, and not the amount actually recovered, but if the libellant recovers less and does not appeal, then the "matter in dispute" is the amount actually recovered, and the respondent has no right of appeal unless this amount is greater than the sum specified in the statute. Gordon v. Ogden, 3 Pet. Smith v. Honey, id. 469; Cooke v. Woodrow, 5 Cranch, 13; Wise v. Columbian Turnpike Co. 7 Cranch, 276. But see Wilson v. Daniel, 3 Dall. 401 ; Greigg v. Reade, Crabbe, 64. In Walker v. United States, 4 Wallace, 163, Chief Justice Chase said: "It has been a good deal controverted whether the sum or value in controversy is to be determined by reference to the amount claimed, or the amount of the judgment, or the amount in dispute in this court. It has been long settled, however, that when the judgment is for the defendant or for the plaintiff, and for less than two thousand dollars, and the plaintiff sues out the writ of error, this court has jurisdiction if the damages claimed in the declaration exceed that sum; but that if judgment is for plaintiff and not more than two thousand dollars, and the defendant prosecutes in error, this court has not jurisdiction, for the amount in controversy, as to the defendant, is fixed by the judgment." See also Knapp v. Banks, 2 How. 73. In Lee v. Watson, 1 Wallace, 337, the writ and original declaration showed that the amount in controversy did not exceed one thousand dollars; the evidence offered on the trial by the plaintiff showed that it did not exceed seven hundred dollars. In the court below, leave appeals, and upon the new trial a full defence, or circumstances greatly lessening the libellant's claim were put in proof, we should be unwilling to say that the court could not regard them. We know of no authority for this, and should infer from the general principles of admiralty, that such a result would follow only where the party who did not appeal might have done so had he thought proper. Indeed, we should ourselves incline to the view, that if either party appeals, the rule that the appellate court tries the whole case, de novo, would cause the same justice to be done to both parties, as if both could have appealed, and both had appealed. If the libel be for a maritime trespass, or assault and battery against two or more, and there is a several decree, each defendant has the same rights of appeal that he would have if there were separate libels; and if the decree be joint, the rule is the same if the defendants sever in their pleas or answers, or, if their answer, though joint, be a denial in the nature of a plea of the general issue. But if they join in a justification, it is said they must join in an appeal from a joint decree.1 was given to amend the declaration by striking out the amount of damages and inserting two thousand one hundred dollars. The Supreme Court held that it had no jurisdiction, and said that reference must be had both to the debt claimed, and to the damages alleged, or the prayer for judgment. See Ryan v. Bindley, 1 Wallace, 66. 1 In Thomas v. Lane, 2 Sumner, 1, this subject is very fully discussed. It was a libel brought by a seaman against the master and the mate. The respondents made a joint answer, alleging also some matters in individual justification of the assault. The district court decreed one hundred dollars, in which decree Jordan the mate acquiesced, but Thomas the master did not. Story, J., said: "But the question here is not so much as to the effect of a joint justification or defence, as it is as to the several right of appeal of the parties charged with a tort in a joint libel. It seems admitted by the argument, that if the parties had severed in their defence (as they clearly might have done), that either of them might have sustained a several appeal. If that be so, it must be upon the ground that a tort charged as joint may be established by proof of its being committed by either party; and, in such case, that there may be a several decree of guilt as to one, and acquittal as to another. My opinion is, that there is no difference as to the right of appeal, whether the respondents sever or join in their answer or pleadings, if the defence is several in its nature, as a general denial of the matters alleged, in the nature of the general issue; for then there may be a several decree of guilt as to one, and of acquittal as to the other. It may be otherwise where there is a joint justification by the respondents; for then it is difficult to perceive how either can separately contest its proof or sufficiency. The more pressing diffi The practice of the courts is settled, where in prize cases an appeal is made and not prosecuted; and doubtless the same rules would apply in other cases. That is, the appellate court may pronounce the appeal to be deserted, and may remit the cause to the court below for final proceedings, or may permit the party who has obtained the decree in the court below, to try or argue the case ex parte, and then affirm the decree if they see cause. And culty is, when there is a joint decree against all the defendants for damages in tort, whether one can appeal alone. There is a distinction well known at the common law, between suits founded on the joint contract of the parties defendant, and suits founded upon their tort. In the former, the contract must be proved to be joint, as it is charged; in the latter, it need not. Upon a joint justification in tort, a writ of error lies only by all the parties to the justification; for all are aggrieved if any are. But if they plead severally, and some are acquitted and the others are found guilty, the latter may maintain a writ of error alone, for they alone are aggrieved. . . . . In short, the appeal must be joint when the interest is joint; and several where there are distinct and separate interests, represented by independent parties in the same suit. "In cases of tort, it seems to me that the same rule must by analogy prevail, where the defendants have not a joint interest, and do not, by their pleading, assume a joint defence. In personal trespasses like the present, though the tort should be jointly charged, it is also several in its nature, and one defendant may be found guilty, and the other acquitted. It would seem strange, if the decree of the district court should pronounce for a joint trespass and give damages accordingly, that one party should not be entitled to an appeal unless the other would join in it; that one party should not be allowed to establish his innocence upon the appeal, because the other had, by his submission to the decree, admitted his own guilt. Each defendant, in such a case, has a distinct and several interest in the suit. He may answer severally, and a final decree may be entered in his favor. And if he denies the whole charge jointly with the other defendant, by a general answer in the nature of the general issue, he is not thereby deprived of this right to a separate acquittal, if the evidence warrants it. . . . . However, if the decree were for joint damages against both defendants, I do not well see how the libellant could maintain a separate appeal against one, for that would be to claim several damages against each. But it would be different as to the defendants; for the charge being in its nature several, as well as joint, one might be aggrieved by the decree, when the other was not, and, therefore, might be entitled to a separate appeal. . . . . My opinion is, that, in this case, a several appeal well lies by Thomas from the decree for joint damages, upon the ground that the asserted trespass is several as well as joint; and that Thomas has a distinct and ́independent interest and responsibility in the suit, unaffected by the decision as to Jordan." 1 The Privateer Montgomery v. Sch. Betsey, 1 Gallis. 416. See The Elizabeth, 1 Hagg. Adm. 226; The San Juan Nepomuceno, id. 265, 267. the appellate court may either tax the costs, or direct this to be done in the court below.1 Whenever an appeal case is heard and decided, and a mandate goes down to the court below to carry the decree into effect, there may be an appeal from that court on the execution of that mandate; because it is necessary that the appellate court should have the power of securing the due execution of its decree.2 But on such appeal, nothing prior to the mandate comes before the appellate court as a question by itself. And, therefore, after a case is sent back to the circuit court, the objection cannot be taken on a second appeal that the court had no jurisdiction to entertain the appeal in the first instance from the circuit court, on the ground that the decree in that court was not a final one.3 But all the prior proceedings, documents, and evidence, are in the hands of the appellate court, for the purpose of deciding accurately any questions which may arise subsequently to the mandate. If there 1 The Privateer Montgomery v. Sch. Betsey, 1 Gallis. 416. Himely v. Rose, 5 Cranch, 313; Boyce v. Grundy, 9 Pet. 275. In Sibbald v. The United States, 12 Pet. 488, 492, the court said: "The inferior court is bound by the decree as the law of the case, and must carry it into execution, according to the mandate. They cannot vary it, or examine it for any other purpose than execution, or give any other or further relief; or review it upon any matter decided on appeal for error apparent; or intermeddle with it, further than to settle so much as has been remanded. . . . . If the special mandate is not obeyed or executed, then the general power given to all the courts of the United States to issue any writs which are necessary for the exercise of their respective jurisdictions, and agreeable to the principles and usages of law,' by the 14th section of the judiciary act, fairly arises, and a mandamus, or other appropriate writ will go." In United States v. Fremont, 18 How. 30, an appeal was dismissed on the ground that it was not entered in the Supreme Court in time, and also on the ground that as the inferior court having taken no action in the case, except to enter the mandate on its records, there was nothing to appeal from. In Ex parte Dubuque R. 1 Wallace, 69, it was held that the inferior court had no authority but to obey the mandate, and that it could not order a new trial, and that mandamus would lie from the appellate court. See Milwaukie R. v. Soutter, 2 Wallace, 510. 3 541. Washington Bridge Co. v. Stewart, 3 How. 413; Whyte v. Gibbes, 20 How. The Santa Maria, 10 Wheat. 431. A decree for general restitution of property had been made in this case. It appeared on the face of the proceedings that the property had been appraised at its value, including the duties to the United States by the claimant, and a stipulation for the amount given. It was be a general decree of restitution in the Supreme Court of the United States, no party can set up new claims or new liens in the court below, even if they would have been allowed had they been asserted before the original decree. So if interest be not mentioned in the decree, none will be allowed.2 If a bond be given in the district court conditional to pay or do a certain thing in case of condemnation in that court, and there be an appeal to the circuit court and condemnation there, it has the same effect to forfeit the bond.3 An appeal, as has been already stated, takes up the whole case, and it will be heard and decided by the appellate court on its merits. But it has been said that the appellate court is very unwilling to vary the decree of the lower court, in cases of salvage, when the question is merely one of amount or proportion; as it is deemed especially important that cases of this kind should be finally disposed of without delay, if it can be avoided. Yet it is held that the decree awarded only the value of the property to the libellant, and that the claimant was entitled to deduct the duties. 2 The Santa Maria, 10 Wheat. 431. Himely v. Rose, 5 Cranch, 313. The decree of the Supreme Court in this case said nothing about interest. The property in dispute had been sold, and the court said: "If this money remains in possession of the court, it carries no interest; if it be in the hands of an individual, it may bear interest, or otherwise, as the See also The Santa Maria, 10 Wheat. 431; Boyce v. Grundy, 9 Pet. 275; Hemmenway v. Fisher, 20 How. 255; The Ann Caroline, 2 Wallace, court shall direct." 538,550. United States v. Four Part Pieces of Woollen Cloth, 1 Paine, C. C. 435. See also United States v. Schooner Little Charles, 1 Brock. C. C. 380. 4 Tyson v. Pryor, 1 Gallis. 133; The Sybil, 4 Wheat. 98. In Hobart v. Drogan, 10 Pet. 108, 119, Story, J., said: "This court is not in the habit of revising" decrees of the court below "as to the amount of the salvage, unless upon some clear and palpable mistake or gross over-allowance of the court below. It is equally against sound policy and public convenience to encourage appeals of this sort in matters of discretion, unless there has been some violation of the just principles which ought to regulate the subject." In Walsh v. Rogers, 13 How. 284, which was a case of collision, Grier, J., said: "In such cases the oral examination of witnesses before the court, with a stringent cross-examination by skilful counsel, is almost the only method of eliciting truth from such sources. be done in the district court, and sometimes, possibly, on appeal to the circuit court. But such a course of sifting out the truth in doubtful cases cannot be pursued here. We are disposed, therefore, to require that the appellant should be held to make out a pretty clear case of mistake in the court below, before he should expect a reversal of their judgment. Raising a doubt on contested facts, is not This may |