Summary proceedings in the district court can not be revised by an appeal to the circuit court. Samson v. Blake, 6 B. R. 401; Samson v. Clarke, 6 B. R. 403; s. c. 9 Blatch. 372.

An appeal can not be taken to revise a decision on a question relating to the bankrupt's discharge. In re J. M. Reed, 2 B. R. 9; Ruddick v. Billings, 3 B. R. 61; s. c. 1 Wool. 330; Coit v. Robinson, 9 B. R. 289; s. c. 19 Wall. 274.

An appeal will not lie from a decision in a case of involuntary bankruptcy declaring the debtor a bankrupt. In re O'Brien, 1 B. R. 176.

An appeal to the circuit court does not lie by the petitioning creditor from an order of the district court vacating an order adjudicating the debtor a bankrupt at the instance of another creditor. The remedy of the petitioning creditor in such a case is under section 4986. In re Hall, 1 Dillon, 586.

The appeal in cases in equity must be from the final decree, and from that only. The language of the section plainly indicates that it is to be from a decree, and not from any and every order in the progress of the cause. Clark v. Iselin, 9 Blatch. 196; Platt v. Stewart, 47 How. Pr. 206. This section provides for an appeal in two classes of cases, namely, in "cases in equity" and on a "decision" allowing or rejecting a claim. It is, therefore, appropriate to use the expression "decree or decision appealed from." The language refers to and is apt to describe each class, and only indicates that in cases in equity a decree may be the subject of appeal, and that where a claim is allowed or rejected, the appeal is to be taken within ten days after the "decision" referring to the immediately preceding language, giving an appeal “from the decision" of the district court allowing or rejecting such claim. Clark v. Iselin, 9 Blatch. 196.

An order which directs the ascertainment of the amount due under a mortgage, without fixing the terms and conditions of the foreclosure of the equity of redemption, or the time at which the foreclosure shall be final and operative, is interlocutory merely, and not a final decree. In re Edward A. Casey, 8 B. R. 71; s. c. 10 Blatch. 376.

A decree which merely declares a conveyance void, but directs a reference to the master to take an account of the rents and profits, and to make allowances affecting the rights of the parties, is not a final decree. Platt v. Stewart, 47 How. Pr. 206.

The decree must be final as to all parties, and as to all rights claimed in the litigation sought to be reviewed. If the decree is not final as to one party, the appeal of others will not be entertained. Ibid.

Where the omission to take the appeal in time arose from a mistake in the selection of the remedy, the district court may grant a review of the decree so that a regular appeal may be taken. Stickney v. Wilt, 11 B. R. 97; s. c. 23 Wall. 150.

When an appeal is taken to revise summary proceedings, the decree may be affirmed if the circuit court finds it to be correct upon the facts of the case. Samson v. Blake, 6 B. R. 401.

When the question raised on an appeal is doubtful, no costs will be allowed. Clark v. Iselin, 9 Blatch. 196; in re Place & Sparkman, 9 Blatch. 369.

Writ of error. It is the right of the excepting party in a case of involuntary bankruptcy, which is tried before a jury, to have the questions arising during the trial, if duly presented by a bill of exceptions, reexamined by the circuit court on a writ of error. Ins. Co. v. Comstock, 8 B. R. 145; s. c. 16 Wall. 258; Phelps v. Classen, 3 B. R. 87; s. c. 1 Wool. 204; Lehman v. Strassberger, 2 Woods, 554.

A writ of error lies in a case of involuntary bankruptcy, although the case was tried before a jury during a vacation. Lehman v. Strassberger, 2 Woods, 554.

No writ of error lies from the circuit court to the district court, where the case is tried before the court without the intervention of a jury. Blair v. Allen, 3 Dillon, 101.

A bill of exceptions which on its face does not appear to have been taken at the trial is insufficient. Strain v. Gourdin, 11 B. R. 156; s. c. 2 Woods, 380.

A bill of exceptions to the rejection of certain evidence is insufficient if it does not set out the evidence so rejected. Ibid.

A petition for a writ of error which is not made a part of the bill of exceptions forms no part of the record, although it purports to set out all the evidence in the case. Ibid.

If the errors in the instruction did not materially affect the merits of the action, and the court could have properly told the jury to find the verdict as they did, the judgment will be affirmed. Schulenberg v. Kabureck, 2 Dillon, 132; Walbrun v. Babbitt, 6 B. R. 539; s. c. 9 B. R. 1; s. c. 16 Wall. 577.

A denial of a motion for a nonsuit is not reviewable in error. Miller v. Jones, 15 B. R. 150.

Questions of fact can not be re-examined on a writ of error. It may be necessary, to enable the court to see the principle of law that was decided, to make the facts, to some extent, a part of the record by bill of exceptions, but it is always the law decided that is subject to review, and not the facts. Ruddick v. Billings, 3 B. R. 61; s. c. 1 Wool. 330; Cragin v. Thompson, 12 B. R. 81; s. c. 2 Dillon, 513.

It is no ground for reversing a judgment that it is rendered payable in gold coin, without finding any such state of facts as would justify that kind of judgment. It would be the regular mode in the absence of a stipulation by the parties to find the value in currency, but this would only involve the necessity of ascertaining the difference in value between coin and currency, and adding it to the coin value. The result would practically be the same, for the amount of currency would be increased so as to equal the value as actually found in coin. The party would be required to pay exactly the same value, although the number of dollars in currency would be greater. He is, therefore, in no way injured by the judgment for coin. Edmondson v. Hyde, 7 B. R. 1; s. c. 2 Saw. 205; s. c. 5 L. T. B. 380.

If a case is tried without a jury, the circuit court can not, on a writ of error, go behind the general finding for the party to inquire into the weight or sufficiency of the evidence. Babbitt v. Burgess, 7 B. R. 561; s. c. 2 Dillon, 169.

Parties litigant should, if they so desire, interpose their technical obJections in the district court, and if they do not, they ought not to be heard for the first time in the appellate court upon such points, especially where it is obvious that the judgment was such as the law and facts demanded. Technical and formal defects should be assailed in order that they may be corrected in the court of original jurisdiction. Such defects are no ground for the reversal of a judgment in the appellate court. Ibid.

Objection to the pleadings can not be entertained in the circuit court (8 954), unless they were raised by a special demurrer in the district court. Ibid.

A motion to dismiss a writ of error will be overruled if it be made before the day on which the writ is returnable. Globe Ins. Co. v. Cleveland Ins. Co., 21 I. R. R. 14.

Instructions are entitled to a reasonable construction, and if correct when applied to the facts submitted to the jury, they will be sustained in an appellate court, even though if standing alone or without any explanation they would be incomplete in respect to some matter sufficiently explained in the evidence. Willis v. Carpenter et al., 14 B. R. 521.

Proof of claims. A decision that the claim of one creditor is not entitled to priority, and the claim of another is, is not a rejection of the first claim. A creditor's claim is the debt due from the bankrupt to him, and the ques tion of priority of payment is one totally distinct from the question of the allowance or rejection of the claim or debt. There is a distinction be tween the claim of a debt or demand aganst the bankrupt, and the claim of priority as to other creditors. A claim of priority is not a claim asserted against the bankrupt, but a right asserted against other creditors. In re York & Hoover, 4 B. R. 479; s. c. 1 Abb. C. C. 503; s. c. 1 L. T. B. 290.

When an investigation has been had and a decision as to the validity of a claim has been made by the district court, the right of an objecting creditor to contest the claim ceases, and any further proceedings to review the decision must be taken by the assignee. In re Troy Woolen Co., 9 B. R. 329; s. c. 9 Blatch. 191.

If the appellant does not file his appeal in the office of the clerk of the circuit court, at the term which is held next after the expiration of ten days from the time of claiming the same, and does not set forth a statement, in writing, of his claim, to which the assignee can plead or answer, and thereby form an issue to be tried, the appeal will be dismissed, although he claimed an appeal within the proper time, and gave due notice thereof to the clerk of the district court and the opposite party. In re Coleman, 2 B. R. 671; s. c. 7 Blatch. 192; in re Place et al., 4 B. R. 541; s. c. 8 Blatch. 302.

A decree rejecting a claim, and directing that the assignee recover costs

against the claimant, to be taxed by the clerk, and have execution therefor, is final in such a sense that an appeal will lie therefrom. It settles the rights of the parties, finally rejects the claim, and awards a recovery of costs and execution therefor. No act of the court is necessary to the full and final effect of its order. The ten days begin to run from the entry of the decree, and not from the taxation of the costs. In re Place & Sparkman, 9 Blatch. 369.

An objection which goes to the jurisdiction of the court does not rest in discretion. Ibid.

If no bond is given within the required ten days, no appeal can be allowed. Still, if the bond is in proper form, and properly executed, and is in a proper amount, and the sureties are sufficient, the judge of the district court may approve it as a bond which would be a proper one if giver in time, leaving it to the appellee to move the appellate court to dismiss the appeal if such a course shall seem proper to him. The bond must clearly and accurately state by what court the decree appealed from was rendered. Benjamin v. Hart, 4 B. R. 408.

ACT OF 1898, CH. 4, § 25. Appeals, how taken.- Appeals may be taken when allowable as in equity cases, within ten days after the judgment appealed from has been rendered, and may be heard and determined by the appellate court in term or vacation, as the case may be.

From any final decision of a court of appeals an appeal, when allowable, may be had under such rules and within such time as may be prescribed by the Supreme Court of the United States.

ACT OF 1867, § 4981. 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 ten 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 in the manner required in cases of appeals in suits in equity; nor shall any writ of error be allowed unless the party claiming it shall comply with the provisions of law regulating the granting of such writs.

Statute revised March 2, 1867, ch. 176, § 8, 14 Stat. 520.

The failure to give notice to the adverse party within ten days, whether claimant or assignee, is equally fatal to the appeal as the failure to give the notice to the clerk that the appeal is claimed. Wood v. Bailey, 12 B. R. 132; s. c. 21 Wall. 640.

The words "defeated party" must be construed as opposite party," "successful party," or "adverse party." Wood v. Bailey, 12 B. R. 132; s. c. 21 Wall. 640.

or

ACT OF 1867, § 4982. Such appeal shall be entered at the term of the circuit court which shall be held within the district next after the expiration of ten days from the time of claiming the same.

Statute revised

March 2, 1867, ch. 176, § 8, 14 Stat. 520.

The right of appeal, as given by the statute, can neither be enlarged nor restricted by the district or circuit court. The regulation of appeals is a regulation of jurisdiction. The circuit court has no jurisdiction of any appeal in any case under the bankruptcy act from the district court, unless it is claimed, and bond is filed at the time it is claimed, and notice of it given, as required by this section, within ten days after the entry of the decree or decision appealed from; and unless it is entered at the term of the circuit court first held within and for the proper district next after the expiration of ten days from the time it was claimed. In re John Alexander, 3 B. R. 29; s. c. Chase, 295; s. c. 2 L. T. B. 81; in re Kyler, 3 B. R. 46; s. c. 6 Blatch. 514; Hawkins v. Hastings Nat'l Bank, 1 Dillon, 453; Sedgwick v. Fridenberg 11 Blatch. 77.

Although the circuit court will not and can not get any jurisdiction of the appeal if the same is not taken in ten days, yet by the filing and serving of the notice of the appeal the court does obtain jurisdiction, and the words which refer to the entering of the appeal at the next circuit are merely directory, and the time for filing the transmiss may be enlarged by agreement. Baldwin v. Rapplee, 5 B. R. 19; Barron v. Morris, 14 B. R. 371; s. c. 2 Woods, 354.

The district judge or a circuit judge may, in a proper case, enlarge the time for entering an appeal, and an application for that purpose should be made as soon as the parties are apprehensive that they will not have time sufficient to prepare proper pleadings. Barron v. Morris, 14 B. R. 371; s. c. 2 Woods, 354.

Athough the rule in regard to entering the appeal is merely directory, still, if it is disregarded, the appellee has a prima facie ground of dismissal. Ibid.

What is required to be filed in the circuit court within ten days from the time of taking the appeal, is the appeal containing a statement of the appellant's claim, and a brief account of what has been done in the district court, and the grounds of appeal. It is not necessary that the transcript of the proceedings in the district court shall be filed within ten days. Ibid.

When an appeal has not been properly taken, a motion for a reargu ment, so that an appeal may be taken from the decree when re-entered, will not be granted, unless the case is one of unquestionable mistake, evincing perfect good faith, and is meritorious; and even then, to grant such relief is going to the extreme verge of judicial decisions. A court should not do indirectly what it has no power to do directly, except, perhaps in such extraordinary and extreme cases as ought to be considered as exceptions to an almost inflexible and absolute general rule. In re Troy Woolen Co., 6 B. R. 16; s. c. 5 Ben. 413.