This suit was instituted by the plaintiff in error, late collector of the District of Vermont, against the collector, his successor in office. The sum sued for, is one half the proceeds of a seizure, made while Buel was in office, but not recovered until after he was superseded by the defendant.
The right of Buel to the sum sued for, is not now to be questioned. It has already obtained the sanction of this Court. (Jones v. Shore, 1 Wheat. Rep. 462.) But before the question was agitated here, a decision had already taken place in the State Court, in favour of Van Ness, and the cause being now brought up under the 25th section of the Judiciary Act, a number of exceptions have been taken to the plaintiff's right of recovery, which have no bearing whatever upon the right of action.
The first of the points made by the defendant's counsel is, 'that the writ of error does not, upon its face, purport to be issued upon a final judgment of the highest Court in the State.'
We see no reason why it should be so expressed. The writ of error is the act of the Court; its object is to cite the parties to this Court, and to bring up the record. How else is this Court to ascertain whether the judgment be final? Nor can there be any danger of its being hastily or erroneously used, since it must be allowed either by the presiding Judge of the State Court, or a Judge of the Supreme Court of the United States.
2. 'That the writ does not appear to have emanated from the office of the Supreme Court, nor from any office authorized to issue it.' This is answered by reference to the seal on the face of the writ, which appears to be that of the Circuit Court of Vermont, and the signature of the clerk. A form of a writ of error has been designed by the Judges of this Court, and transmitted to the clerks of the respective Circuits, by the clerk of this Court, according to law. And this writ has duly issued from the Circuit Court, after being allowed by the Circuit Judge. What more does the law require? (See s. 8. Act of May 8th, 1792.)
3dly. It is objected, 'That it is not stated, nor does it appear, that the Supreme Court of the State of Vermont is the highest Court in the State in which a decision in the suit could be had, and therefore the jurisdiction of this Court is not shown.'
Nor was it necessary, at this stage of the proceedings, that it should have been shown. It has been before observed, that this writ is the act of the Court, and if it has issued improvidently, the question is open on a motion to quash it. No one is precluded by the emanation of the writ; and the right of the party who demands it, ought not to be finally passed upon by a Judge at his chambers. It is a writ of common right in the cases to which the jurisdiction of an appellate Court extends, and the abuse of it is sufficiently guarded against, as suggested to the first exception.
4thly. It is contended, 'That the amount of the judgment is not sufficient to ground an appeal or writ of error to this Court.'
This is a new question. Thirty-four years has this Court been adjudicating under the 25th section of the act of 1789, and familiarly known to have passed in judgment upon cases of very small amount, without having before had its attention called to the construction of the 25th section now contended for. Nevertheless, if the received construction has been erroneously adopted, without examination, it is not too late to correct it now.
But we think that it is not necessary to sustain our practice upon contemporaneous and long protracted exposition; that as well the words of the two sections under which we exercise appellate jurisdiction, as the reasons and policy on which those clauses were enacted, will sustain the received distinction between the cases to which those sections extend.
The argument on this part of the case is, that the appellate jurisdiction conferred by the 25th section of the Judiciary Act of 1789, is restricted within the same limits, as to amount, with that conferred by the 22d section, under the influence of those words which enact, as to the cases comprised within the 25th section, 'that they may be reexamined, and reversed, or affirmed, in the Supreme Court of the United States, upon a writ of error, the citation being signed, &c. in the same manner, and under the same regulations, and the writ shall have the same effect as if the judgment or decree complained of had been rendered in a Circuit Court,' &c.