such limit, between the date of the Act and the That the amendment of the Act of 1864, enlocation of the road. The reasons for the omis-larging the grant of 1862 to the Union Pacific sion in this case are obvious. The road was to Company, was intended to apply to the grants run through a country already partially settled, made to all the branch companies, there can be and likely to be more settled before the line of no doubt. All the reasons which led to the enthe road would be definitely located. It was largement of the original grant, led to its endoubtful, therefore, whether any considerable largement to the branches. It was the intenportion of the amount of land intended for the tion of Congress, both in the original and in the Company would be found undisposed of within amendatory Act, to place the Union Pacific twenty miles of its road. Moreover, the road Company and all its branch companies upon the of the Union Pacific was to be constructed same footing as to land, privileges and duties, within a short distance, and its grant would to the extent of their respective roads, except necessarily preclude a selection of land by the when it was otherwise specially stated. Such defendant if the latter's grant were confined has been the uniform construction given to the within a similar lateral limit. Congress gave Acts by all departments of the Government. no government bonds to the Company: its aid Patents have been issued, bonds given, mortconsisted merely in the grant of land; and that gages executed and legislation had upon this this might not fail, it allowed the land to be construction. This uniform action is as potentaken along the line of the road wherever it tial, and as conclusive of the soundness of the could be found. And the land was taken along construction, as if it had been declared by jusuch line in the sense of the statute, when taken dicial decision. It cannot at this day be called along the general direction or course of the road in question. within lines perpendicular to it at each end. The same terms are used in the grant to the Union Pacific Company, in which the lateral limit is twenty miles; and if a section at that distance from the road can be said to be along its line, it is difficult to give any other meaning than this to the language. They certainly do not require the land to be contiguous to the road; and if not contiguous, it is not easy to say at what distance the land to be selected would cease to be along its line.

thus read: it must, therefore, take its rights to the land subject to the claim of that company.

Now, the enlargement of the grant by the Act of 1864 is not made, as already stated, by words of a new and additional grant, but simply by altering the number of sections granted and the distance from the road within which they are to be taken. The numbers in the firstAct, says the amendment, shall be stricken out and larger numbers substituted, so that the Act of 1862 must thenceforth be read, at least as against the Government and parties claiming under concurrent or subsequent grants, as The position that the grant was in aid of the though the larger numbers had been originally construction of each section of twenty miles inserted in it. The Burlington and Missouri taken separately, and must be limited to land Railroad Company received its grant from the directly opposite to the section, is equally un- same Act, which declared that the Act of 1862 tenable. The grant was to aid in the construc-in its grant to the Union Pacific should be tion of the entire road, and not merely a portion of it, though the Company was not to receive patents for any land except as each twenty miles were completed. The provision allowing it to obtain a patent then, was intended for its aid. It was not required to take it; it was optional to apply for it then, or to wait until the completion of other sections or of the entire road. The grant was of a quantity of land on each side of the road, the amount being designated at so many sections per mile, with a privilege to receive a patent for land opposite that portion constructed as often as each section of twenty miles was completed. If this privilege were not claimed, the land could be selected along the whole line of the road, without reference to any particular section of twenty miles. When lateral limits are assigned to a grant, the land within them must of course be exhausted before land for any deficiency can be taken else where. And when no lateral limits are assigned, the Land Department of the Government, in supervising the execution of the Act of Congress, should, undoubtedly, as a general rule, require the land to be taken opposite to each section; but in some instances good reasons may exist why a selection elsewhere ought to be permitted. If, as in the present case, by its neglect for years to withdraw from sale land beyond twenty miles from the road, the land opposite to any section of the road has been taken up by others and patented to them, there can be no just objection to allowing the grant to the Company to be satisfied by land situated elsewhere along the general line of the road.

"This view," as the presiding Justice of the Circuit Court justly observes, "would commend itself to Congress by its intrinsic equity, for by it each road gets the largest quantity of land which the statute permits, while the other construction allows the Burlington and Missouri Company to get all it could under any circumstances, the other road losing what the latter took within the lap. This comes out of the fact that the Burlington and Missouri Company was not confined within any lateral limits, while the Union Pacific could not go without its twenty mile limit to make up deficiencies." "Besides," he adds, "both of these roads have acquiesced in the construction given and acted on by the United States, the officers of the Government having prescribed it as the one which should govern all their rights; the patents have been issued under it for the full amount of all the land which could be so claimed under both grants; and innocent purchasers have no doubt become owners of much of the land patented to the Union Pacific Company; and it is certainly all mortgaged, so that an incalculable amount of injustice would be done by holding all this void and setting aside the patents."

It only remains to notice the further objection to the patents, that land to the amount of 150,000 acres on the north side of the road is included in them in lieu of land deficient on the south side. It is true, the Act of Congress contemplates that one half of the land granted should be taken on each side of the road; and

filed in the cause, which contained a statement of all the evidence submitted upon the hearing, with the findings of the District Court thereon both as to the facts and the law. On the same day, the following writ of error, omitting the mere formal parts, was sued out of the Circuit Court:

the department could not enlarge the quantity | ceptions was signed by the district judge and on one side to make up a deficiency on the other. But the answer to the objection as presented by the bill, either in its original form or as amended, is that it is not shown what this land was, and the patents cannot be adjudged invalid as to any land not identified, so as to be capable of being separated; nor can any decision go against the Company for its value without such identification. It is possible that the land to which the Company was entitled is not so described in the patents that it can be separated from that which should not have been patented. If such be the fact, the Government may be with out remedy; it certainly could not insist upon a cancellation of the patents so as to affect innocent purchasers under the patentees. It is sufficient, however, that it makes no case for relief by the present bill.

Decree affirmed.

Mr. Justice Strong did not sit on the argument of this case, and took no part in its decision.

Cited-104 U. S., 332; 112 U. S., 417, 418, 730; 2 McCrary, 410, 422; 11 N. W. Rep., 334.

"Because in the record and proceedings, and also in the rendition of judgment, in a certain matter which is in the said District Court in bankruptcy before you, wherein the Globe Insurance Company is petitioning creditor against the Cleveland Insurance Company, debtor, a manifest error hath happened, to the great damage of the said Globe Insurance Company, as by its complaint appears; and it being fit that the error, if any there hath been, should be duly corrected, and full and speedy justice done to the parties aforesaid in this behalf, you are hereby commanded, if judgment be therein given, that then, under your seal, distinctly and openly, you send the record and proceedings, with all things concerning the same, to the Circuit Court of the United States for the Sixth Circuit and Northern District of Ohio, together with this writ, so that you have the same at Cleveland, in said district, on the fifth day of January next, in the said Circuit

THE CLEVELAND INSURANCE COM- Court to be then and there held, that the rec

PANY, Piff. in Err.,

v.

ord and proceedings aforesaid being inspected, the said Circuit Court may cause further to be done therein to correct that error what of right

THE GLOBE INSURANCE COMPANY. and according to the law and custom of the

(See S.C., 8 Otto, 366-381.)

United States should be done."

On the next day, in obedience to the comJurisdiction in Bankruptcy-review in Circuit mand of this writ, a transcript of the proceed

Court.

1. The only remedy for the correction of error, in a proceeding in the District Court for an adjudication in bankruptcy, is such as may be had under the supervisory jurisdiction of the Circuit Court: the action of the Circuit Court therein is final, and not subject to review in this court.

2. No particular form of proceeding is required, in order to take the case to the Circuit Court for review under this Jurisdiction; it is sufficient if some "proper process" for that purpose is employed. A writ of error is "proper process." [No. 250.]

Submitted Jan 27, 1879. Decided Mar. 3, 1879.

IN ERROR the of the United

States for the Northern District of Ohio. On motion to dismiss.

The case is fully stated by the court. Messrs. Jacob D. Cox and John F. Follett, for defendant in error.

ings and judgment of the District Court, including the bill of exceptions, was sent to the Circuit Court, and on the 27th of November, 1875, the Cleveland Insurance Company appeared in the Circuit Court and moved to dismiss the writ, for the following reasons:

"1st. Because this being a petition in involuntary bankruptcy, where the bankrupt or debtor demanded no jury, but hearing was had to the court, the case is not removable into this court by writ of error, but by petition for review, or other proper process under the first clause of the 2d section of the Bankrupt Act.

2d. Because the debt or damages claimed in the petition herein do not amount to more than $500; in fact, no debt or damages (are claimed at all.

3d. Because the writ of error herein was not sued out or taken within ten days after the enMessrs. H. L. Terrell, S. Burke and Geo. try of the decree or decision of the District Willey, for plaintiff in error.

Mr. Chief Justice Waite delivered the opin

ion of the court:

Court herein, nor were the statutes regulating the granting of writs of error complied with within ten days after the entry of the decree or decision of the District Court."

*

*

*

This motion was overruled, and on the 15th of June, 1876, the Circuit Court, after hearing, "as well upon the transcript of the judgment and other proceedings between the parties in the District Court; brought here by writ of error from this court to said District Court, as also upon the matters by the said Globe Insurance Company herein assigned for error," entered its judgment as follows:

On the 2d of May, 1872, the Globe Insurance Company, of Cincinnati, filed a petition in the District Court of the United States for the Northern District of Ohio, sitting in bankruptcy, against the Cleveland Insurance Company, asking to have the last named Company adjudged a bankrupt. To this petition the Cleveland Insurance Company in due time appeared and filed its answer, and on the 16th of October, 1874, after hearing in the District "Therefore, it is considered that the judgCourt, a judgment was entered dismissing the ment aforesaid for the errors aforesaid be re petition. On the 16th of December, a bill of ex-versed, annulled and altogether held for naught,

Here, however, the Circuit Court had jurisdiction, and over its judgment we have no con-writ of error, for the following reasons: (1) Betrol.

Instead of petitioning the Circuit Court for a revision of the ruling and decision of the District Court, under the first clause of the 2d sec-trict Courts sitting in bankruptcy, except in the tion of the Bankrupt Act, as the petitioners should have done, they filed a bill of exceptions as in action at law, and the same was signed and sealed by the District Judge as in the trial of an information for a seizure on land under the 9th section of the Judiciary Act.

necessarily standing in the way of the proper proceeding in a case where, in the judgment of this court, other proceedings ought to take place in consequence of the irregularity in either of the subordinate courts. Where the court below has no jurisdiction of the case in any form of proceeding, the regular course is to direct the cause to be dismissed, if the judgment or decree of the lower court is for the defendant or respondent; but if the judgment or decree is for the plaintiff or libelant, the court here will reverse the judgment or decree, and remand the cause, with proper directions, as for example, to reverse the decree of the District Court in a case where that court proceeded irregularly or without jurisdiction, and to remit the cause to the District Court in order that the cause may be dismissed in the court where the error commenced; or this court will reverse the judgment or decree of the Circuit Court, and remand the cause with directions to dismiss the case, or to grant a new trial or rehearing, with or without leave to amend the pleadings, according to the circumstances of the case and as justice may require. Morris' Cotton, 8 Wall., 507 [75 U. S., XIX., 481]; Mail Co. v. Flanders, 12 Wall.,130 [79 U.S., XX., 249].

that rule where the effect of a judgment or de- | in order to vacate any unwarranted proceedings cree of dismissal will be to give full operation to an irregular and erroneous judgment or decree of the subordinate court in a case where the judgment or decree of such a court is rendered without jurisdiction, or in violation of some legal or constitutional right of the losing party. Rules of practice are established to promote the ends of justice, and where it appears that a given rule will have the opposite effect from that which it was intended to accomplish.courts of justice have never hesitated to establish an exception to it. Appellate courts, where there is no defect in bringing up a cause, usually affirm or reverse the judgment or decree of the court below; but cases occasionally arise where the proceedings of the subordinate court are so unusual and irregular that the appellate court can neither reverse nor affirm the merits of the case without doing great injustice, and in such cases the appellate court never hesitates to remand the case for a new trial or rehearing, first reversing the judgment or decree in order to open the case for that purpose. Suydam v. Williamson, 20 How., 427 [61 U. S., XV.,978]. Where, as in a special verdict, the essential facts are not distinctly found by the jury, although there is sufficient evidence to establish them, the court will not render a judgment upon such an imperfect special finding, but will remand the cause to the court below with directions to award a new venire. Barnes v. Williams, 11 Wheat., 415; Graham v. Bayne, 18 How., 60 [59 U. S., XV., 265].

So where the circumstances disclosed in the record rendered it proper, in the view of the court, to remand the case for a further hearing, the court decided to reverse the judgment, in order that the rehearing might be granted. U. S.v. Cambuston, 20 How.,59 [61 U.S., XV.,828]. Admiralty cases have more than once been appealed to this court, in which it appeared that the Circuit Court had no jurisdiction of the case, in consequence of irregularities in the District Court; and in such cases it has been held by this court that it is the regular course to reverse the decree of the Circuit Court and to direct the Circuit Court to remand the cause to the District Court for further proceedings. Montgomery v. Anderson, 21 How.,386 [62 U. S., XVI.,160]; Mordecaiv. Lindsay, 19 How.,199 [60 U.S., XV., 624]; U. S. v. Galbraith, 22 How., 89 [63 U. S., XVI., 321].

Difficulties of the kind frequently occur in cases of seizures, as the district courts have often failed to distinguish between seizures on land and seizures on navigable waters. Mistakes of a like kind have also been made in libels of information under the confiscation Acts. Where the seizure is on land, the rule is that the case is triable according to the course of the common law; but seizures, when made on waters which are navigable from the sea by vessels of ten or more tons burthen, are exclusively cognizable in the admiralty, subject to appeal to the Circuit Courts. Dunlap, Pr., 116; Cross v. U. S., 1 Gall., 26; Confiscation Cas., 7 Wall. 454 [74 U. S., XIX., 196]; 3 Greenl. Ev., sec. 396; 1 Kent, Com., 12th ed., 304.

Nor did those decisions announce any new rule of practice, as this court had in repeated instances decided in the same way before that time. Ins. Co. v. U.S., 6 Wall., 759 [73 U. S., XVIII., 879]; Armstrong's Foundry, 6 Wall., 766 [73 U. S., XVIII., 882].

Precisely the same question was presented in the case of U. S.v. Hart, 6 Wall., 770 [73 U. S., XVIII., 914], where this court decided that the proper disposition of the case was to reverse the decree, and remand the cause to the court below with directions to enter a decree remitting the case to the District Court, that the case might be tried on the common law side with a jury, it appearing in that case that the seizure had been made on land and not on waters navigable from the sea. The Caroline v. U. S., 7 Cranch, 496; The Sarah, 8 Wheat., 391.

Unless the practice was as explained, great injustice would be done in all cases where the judgment or decree in one or both of the subordinate courts is erroneous and in favor of the party instituting the suit, as he would obtain the full benefit of a judgment or decree rendered in his favor by a court which had no jurisdiction to hear and determine the controversy. Common justice demands a strict adherence to this practice, which requires that this court in all such cases will reverse the judgment or decree of the lower court, and remand the cause with proper directions either to dismiss the case or allow the pleadings to be amended, or grant a new trial; or direct that the cause be remitted to the District Court, as the circumstances of the case may require, in order that justice may be administered according to law.

Decided cases to that effect are numerous and decisive, showing that the rule must be regarded as founded in the settled practice of the court. Beyond question, the general rule is that, where the Circuit Court is without jurisdiction, is irregular to make any order in the cause except to dismiss the suit; but that rule does not apply to the action of the court in setting aside such orders as had been improperly made before

Want of jurisdiction in the court below, how-it ever, does not prevent this court from assuming jurisdiction, on appeal, for the purpose of reversing the decree rendered by the Circuit Court,