
    COLLIE’S CERTIORARI.
    (9 Court of Claims R., p. 431;
    94 U. S. R., p. —.)
    John Young, assignee of Collie, appellee, v. The United States, appellants.
    
      On the claimant’s Motion.
    
    
      The claimant recovers judgment in the court below. The defendants appeal. While the appeal is pending the court below grants a new trial under the statute, (Rev. Stat., § 1088.) The claimant, denying that the court below acted upon newly-discovered evidence, as required by the statute, and asserting that the neiv trial was granted without authority of law, moves for a certiorari to bring up the motion-papers that this court may examine them, to the end that it will protect its own appellate jurisdiction. The defendants at the same time move to dismiss their own appeal.
    
    I. The appellant in a case appealed from the Court of Claims may always dismiss bis own appeal on motion. '
    II. Appeals, and not writs of error, are allowed to this court from the judgment of the Court ’of Claims. Consequently this court cannot review by writ of error the decisions of the Court of Claims.
    
      III. The writ of certiorari is used at common law for only two purposes : as an appellate proceeding for the re-examination of the action of an inferior tribunal; as an auxiliary process to obtain further information respecting some matter already before it for adjudication.
    IY. The Supreme Court can employ the writ of certiorari only as an auxiliary process to bring up information respecting some matter already before it for adjudication, and not as an appellate proceeding to ascertain whether the Court of Claims had such evidence before it when it granted a new trial, in a case pending on appeal in this court, as the statute prescribes in such cases. (Rev. Stat., § 1088.)
    
      The ’Reporters' statement of the ease:
    The following was the petition of the claimant to the Supreme Court of the United States for a writ of certiorari to be directed to the Court of Claims:
    
      To the honorable the Supreme Gourt of the United States:
    
    The petition of John Young, assignee and trustee in bankruptcy of Alexander Collie, respectfully shows:
    That your petitioner is such assignee aud trustee, and is a subject of her Majesty the Queen of Great Britain, aud resides in the city of London, in said kingdom.
    That the rights of your petitioner, as such assignee aud trustee, accrued after the judgment hereinafter mentioned in favor of said Collie, in the Court of Claims, aud after the appeal taken by the defendants to this court.
    That at all times during, the war of the rebellion in the so-called Confederate States, and up to the filing of the claim hereinafter mentioned in the Court of Claims, the said Collie was a subject of her said Majesty the Queen of Great Britain, and' domiciled there, and during all of said.period was never absent from said kingdom, unless temporarily in some other country in Europe, and was never at any time during said period within the United States or the so-called Confederate States.
    That during the progress of the war of the rebellion the said Collie became the owner of a large amount of cotton which was stored in the city of Savannah, in the State of Georgia.
    That upon the occupation of that city by the United States forces, under General Sherman, in the month of December, 1864, the said cotton was taken possession of by said forces, and by them turned over to the agents of the Treasury Department. That said cotton was by said agents sold, and the proceeds thereof, amounting to the sum of $952,076.71, were paid into the Treasury of the United States early in the year 1865.
    That shortly afterward, and within the time prescribed by statute, the said Collie filed his petition in the Court of Claims for the recovery of the said proceeds, under and in accordance with the provisions of the acts of Congress in regard to captured and abandoned property.
    That testimony was taken in the Court of Claims from time to time by both claimant aud defendants, prior to the establishment and organization under the treaty of Washington of the mixed commission for the determination of British and American claims.
    That while said claim remained so pending in the Court of Claims, the claimant also filed his claim and petition in the mixed commission, being induced thereunto by the circumstance that in the Court of Claims he.was limited and restricted by statute to claiming only the amount which reached the Treasury of the United Stales as the alleged avails thereof, without interest, after a forced sale, and heavy expenses, direct and indirect, charged against the same; while in the mixed commission the said Collie could and did prefer his claim for the real value of his said cotton, without deductions aud with interest, and which, when so .preferred before the mixed commission, amounted to more than three times the amount claimable or obtainable in the Court of Claims.
    That the claim of said Collie in the mixed commission was dismissed by that tribunal for alleged want of jurisdiction, on account of the pendency of the claim in the Court of Claims, and without prejudice to its prosecution therein.
    That thereupon the prosecution thereof in the Court of Claims, which had been in the mean time temporarily suspended, was-again actively resumed, and further evidence was taken by the claimant upon commission therein, and such further proceedings were thereupon and therein had that the cause was regularly brought forward for trial according to the practice and the manner and form of procedure in the said court.
    That such proceedings had been taken by the claimant; that the cause was ready for trial, and the claimant entitled to a trial in the latter part of the year 1873 and the early part of the year 1874.
    
      That the method of procedure in said court, under which the claimant became so entitled, required that when the claimant had completed and filed his proofs he should cause the same to be printed, and that when printed he should enter the cause upon a book provided for that purpose, called a notice-book, and that when the said cause had been upon said notice-book for two months, the claimant having first filed his brief, he might have the cause transferred to the trial-calendar of the court, and when upon such calendar the claimant was entitled to have the same tried when reached in its turn upon the call of the calendar.
    That all of said proceedings were duly taken by the claimant, whereby the Attorney-General had full notice for two montas, and for such further time as the cause might be delayed by the condition of the calendar, of the proofs which were to be relied upon by the claimant, and which notice in this case was in fact more than four months before' the trial.
    That during the mouth before the cause was reached for trial, namely, in the month of February,1874, the attorney for the United States, who had the principal charge of the cause on behalf of the Government, stated to the local attorney and counsel of the claimant that upon the trial he wished to prove that the claimant had adhered to the enemies of the United States, and that the facts which he wished to prove w^re indicated, set forth, and referred to in a large number of documents' which had been collected and set apart in the bureau of rebel archives as relating to the acts of the claimant during the war.
    That he suggested to said attorney that he should call at the place where the rebel archives were kept, and examine the said documents.
    That the said attorney accordingly went to said place and found that the same had been set apart by the person in charge thereof for his perusal, and the said documents were placed at his disposal, and he carefully inspected and 'perused the same.
    That said documents had been, prior to March 12, 1873, so collected and set apart by the officers of the Government for use, in case the same were competent for that purpose, against the claims of said claimant in the mixed commission. .
    That the same had been, on said 12th of March, 1873, duly certified for use as evidence in said commission by the Secretary of War, and the same had been so used and put in evi-deuce iu said com mission by the counsel acting therein for the Government against the claims of said claimant, and the same were printed, and eight printed copies served upon the claimant’s special counsel in the summer of 1873, being more than eight months before the trial of the cause in the Court of Claims.
    That after the examination of said documents by the said attorney, the Government attorney stated to him that he would move for a continuance of the cause unless the claimant should either admit in evidence the matter contained in said documents, or admit the printed record thereof as printed in the mixed commission, or admit, by stipulation, that the claimant, during the progress of the war, ran the blockade with arms, ammunition, and other material of war. .
    That in the abseuce of his client from the country, and the shortness of time not allowing communication with him by letter, the said attorney was unwilling to stipulate anything more than tbe general fact that his client had run the blockade, and beyond that leaving the matter so that if the Government wished to make proof of anything further or more specific, it would require to be done after taking the judgment of the ci^urt upon the motion for a continuance.
    That the said Government attorney, after consideration and deliberation, determined to avail himself of the stipulation offered as admitting all that the Government need to adduce, and thereupon decided to try the cause without further delay, and without attempting to prove the matters referred to in said documents, accepting such stipulation as the full legal equivalent thereof, and the cause was accordingly tried when reached upon the calendar, the Government insisting that the claim should-be defeated by reason of the said Collie having adhered to the enemies of the United States by the admitted running of the blockade.
    That, after due deliberation, judgment was rendered on the 15th day of May, 1874, in the Court of Claims, in favor of the claimant for the sum of $952,076.71.
    And your petitioner further shows to your honors that the said documents, which were so under the consideration of the said Government attorney who conducted the trial of the cause, and which, under his suggestion, in the month before the trial,were so perused and inspected by claimant’s local attorney and counsel, and which had in the previous year been put in evidence in the mixed commission by the Government against the claimant, and printed copies of which were served upon his special counsel, consisted of letters written by the claimant to officials of the rebel government and others, and letters, or copies thereof, written to him by such officials and others, contracts signed by him, bills of lading, or manifests of blockade-running vessels; and such documents tended to show that said claimant, during the late civil war, carried on a very extensive trade with the States in rebellion, including the shipment to quartermasters and other officials or agents of the insurrection-ary States, or some of them, of material contraband of war, and also including the present of a battery of six so-called Whit-worth guns to the State of North Carolina, and a receipt from a rebel quartermaster for the consideration upon sale of a blockade-running steamer.
    That some of these documents were originals and some of them were certified copies.
    That most of the persons who had written or signed the said documents, or who were indicated as having full knowledge of the matters referred to therein, were persons then and now of great prominence, and within the reach of the Court of Claims by subpoena, commission, or other writ of process.
    That the said documents either contained a full history of the transactions of the claimant above mentioned, or referred to them in such a manner as to give the easiest access to the minute particulars thereof, and the names of the persons by whom the same could be proven.
    And your petitioner shows that the said documents and the facts indicated therein were thus fully under the notice and within the knowledge of the counsel for the Government who tried the cause in the Court of Claims before and at the time of said trial, and that the introduction or non-introduction of the same in evidence upon such trial was subjéct of consideration and deliberation of such counsel.
    And your petitioner further shows unto your honors that afterward, namely, on the thirtieth day of June, 1874, an appeal from the judgment of the Court of Claims to this court was prayed for by the defendants and duly allowed, and that said appeal has been duly perfected by bringing the record out of the Court of Claims and into this court, and thereby the said cause has come under and within the jurisdiction of this court and without the jurisdiction of the Court of Claims.
    That the same has been so pending in this court for upwards of two years and a half. That when the same was about being reached the claimant was ready for argument, but the Assistant Attorney-General, who had charge of the said cause, asked that the same be passed for purposes of his personal convenience connected with the preparation of his brief; and the same was so passed, with the understanding that the same should be put. upon the day-docket for December 4 last, for argument; but before the same could be so brought on for argument a motion was filed in the Court of Claims for a new trial.
    The said motion purported to be filed under and in pursuance of the act of Congress approved June 25,1868, which provides that the Court of Claims, at any time while any claim is pending before it or on appeal from it, or within two years next after the final disposition of such claim, may, on motion, on behalf of the United States, grant a new trial and stay the payment of any judgment therein, upon such evidence, cumulative or otherwise, as shall satisfy the court that any fraud, wrong, or injustice in the premises has been done to the United States.
    • That such motion was filed by the Attorney-General on or about the 8th day of December, 1876, and was so filed upon the affidavits of Mr. John J. Key and others, all of said affiants other than said John J. Key being resident in Great Britain, and not now or at any previous time in any manner connected with the office of the Attorney-General, or officially or otherwise cognizant of the circumstances connected with the trial of the cause in the Court of Claims, or the preparation therefor. That no affidavit or testimony of the Attorney-General himself is filed in support of the motion.
    That the affidavit of Mr. Key states that he had been employed as special counsel in the cause upon the 13th of July, 1876, but does not state that he had any connection with the cause before that, or any knowledge in regard to the same whatever.
    That no affidavit by the former Attorney-Gen eral of the United States, who held that office at or before the time of said trial, nor by any person then connected with his office, is filed in support of said motion.
    And your petitioner further shows to your honors that the said motion,, aud tlie affidavits and exhibits died in support thereof, present, as the alleged grounds for a new trial, only the same facts which were indicated and set forth by the said documents, so inspected by the local attorney of the claimant as aforesaid, and used by the United States in the mixed commission, and which were fully known and duly considered by the Government attorney in charge of the trial of the cause before and at the time of such trial.
    And your petitioner further shows unto your honors, aud charges, that the full legal scope, purpose, and intention-of the said statute is that the court in which the judgment was rendered might, in derogation of the principles of the common law, grant a new trial even after the cause by appeal has been brought into this court, whenever it should be shown to them upon a new case made that any fraud, wrong, or injustice has been practiced upon the United States in obtaining the judgment, and that said Court of Claims has not, under such statute or otherwise, jurisdiction, power, or authority to grant a new trial in a cause which is in this court upon appeal, because by reason of a change of officers in charge of the Government causes there is a difference of opinion between former and present Government law officials as to the importance or bearing of facts well known to the Government counsel at and before the time of the trial.
    And your petitioner shows unto your honors that in violation of these principles, and outside of and beyond the power conferred upon them by said statute, the said Court of Claims has arbitrarily, and by usurpation of jurisdiction and authority, entertained said motion, and has in fact ordered a new trial in said cause.
    And your petitioner further shows that all of the so-called proofs presented in support of the said motion are ex parte affidavits and exhibits referred to therein, and are not evidence within the meaning and scope of the said statute, but that if the said alleged proofs were admitted to be sufficient in form they do not show and do not tend to show in any degree that the facts thus presented were not fully known to the Government counsel who tried the cause before the trial thereof,- and that, by reason of this insufficiency, failure, and defect, the said motion and affidavits do not show, or in any degree tend to show, that any fraud, wrong, or injustice has been practiced upon the Government.
    And your petitioner further shows to your honors that upon said motion the claimaut showed affirmatively, and without attempted contradiction or denial, that the matters and facts so set up by the Government were well known to the Government attorneys who tried the cause at and before the time of such trial.
    And your petitioner therefore saith that, in considering said motion, and in assuming to grant a new trial thereupon, the Court of Claims acted in the pretended exercise of a power conferred by statute, but in disregard and violation of the limitations imposed by such statute, in this, that the fraud, wrong, or injustice referred to in said statute, as your petitioner is advised, does not refer to an error by the court in granting the judgment, nor to any supposed error by the law-officers of the Government as to which of the facts within their knowledge they shall adduce or withhold on the trial, even if their successors should disapprove such exercise of judgment, but that said statute refers only to a new case, showing, by competent evidence, that some fraud, wrong, or injustice has been practiced by the claimant upon the Government, and, therefore, your petitioner claims that the Court of Claims acted in the premises without authority of law.
    And your petitioner further shows unto your honors that in the class of cases, of which this is one, arising under the Captured and abandoned property Act of 12th March, 1863, the judgments of the Court of Claims have been understood and construed to be judgments against a special fund, the proceeds of the property sued for in each case, and as the amount held in the Treasury to respond to such judgments is limited by the sum received, interest has not been allowed upon such judgments.
    That the fund in this cause, amounting to $952,076.71, has been in possession of and used and enjoyed by the Government for twelve years last past.
    That the annual interest accruing to the Government and lost to the claimant is about $60,000, and whatever might be the result of any new trial the awarding of such new trial is sure and great advantage and profit to the Government, and sure and great disadvantage and loss to your petitioner. That the loss of interest to your petitioner from the time of the rendition of tbe judgment in bis favor by the Court of Claims to the time of the alleged order for a new trial is over $150,000.
    All of which matters and things are to the manifest detriment and injury of your petitioner, and tend to abridge, impair, and oust the jurisdiction of your honors in the said cause now of record in your court, and under the jurisdiction thereof; and in case of the affirmance of said judgment of the Court of Claims in favor of your petitioner, or in case of the dismissal of the said appeal, the same tends to the impairment and invalidity of your honors’ mandate to be issued herein.
    Wherefore your petitioner prays for your honors’ writ of cer-tiorari to be issued out of your court, to be directed and delivered to the said Court of Claims, commanding them to return and certify to you the alleged proceedings and the record thereof for the alleged granting of such new trial, and tending, as aforesaid, to the impairment and ouster of your honors’jurisdiction over this cause, and to the invalidity of the mandate of your honors to be issued herein, and also ro the loss and injury of your petitioner, to the end that the same may be inquired into by your honors and here reviewed, and that justice may be done in the premises, and the said alleged order granting such new trial be vacated, set aside, and held for nothing; and that your petitioner may have such other and further relief in the premises as shall seem proper to your honors.
    And your petitioner will ever pray, &c.
    JAMES THOMSON,
    C. F. PECK,
    
      Attorneys for Petitioner.
    
    Wi. M. EVAETS,
    W. W. MacFARLAND,
    
      Of Counsel.
    
    
      Messrs. Wm. M. JSvarts, (7. F. Peek, and James Thomson presented the application by a printed argument of great length. They insisted that the court below acted without newly-discovered evidence, and hence without jurisdiction ; and that the Supreme Court should award a certiorari for the purpose of protecting its own jurisdiction, of which it had been illegally ousted by the unauthorized action of the court below.
    
      Mr. Assistant Attorney-General Smith resisted the application and likewise filed a printed argument of great length. -The ground taken was substantially that on which the court places its decision.
   Mr. Chief-Justice Waite

delivered the opinion of the court:

During the pendency of this suit in this court, the Court of Claims, assuming to act under the authority of sec. 1088, Rev. Stat., has granted a new trial, and the United States now ask to dismiss their appeal. This we have often decided they have the right to do. (Latham’s and Deming's Appeals, 9 Wall., 145.) In The United States v. Ayres, (9 Wall., 610,) the motion to dismiss was made by the appellee and resisted by the United States, but it was held “that the order granting the new trial has the effect of vacating the former judgment and to render it null and void,” and the appeal was consequently dismissed. The same principle was recognized in The United States v. Crussell, (12 Wall., 175,) Ex parte Russell, (13 Wall., 664,) and Ex parte The United States, (16 Wall., 699.)

The appellee asks, however, that the cause may be retained, and that the proceedings under which the new trial was granted may be brought here by writ of certiorari for re-examination. Unless this can be done, he admits that the United States should be permitted to dismiss their appeal.

We have only such appellate jurisdiction as has been conferred by Congress, and in the exercise of such as has been conferred we can proceed only in the manner which the la-w prescribes. (Barry v. Mercien, 5 How., 119; Durosseau v. The United States, 6 Cranch. 314; The United States v. Curry, 6 How., 113; Ex parte Vallandigham, 1 Wall., 251.)

From the judgments of the Court of Claims appeals are allowed to this court, (sec. 707 Eev. Stat.,i but no provision has been made for writs of error. Consequently we cannot proceed by writ of error to review the decisions of that court.

At common law the writ of certiorari is used for two purposes: 1, as an appellate proceeding for the re examination of some action of an inferior tribunal; and, 2, as auxiliary process to enable a court to obtain further information in respect to some matter already before it for adjudication. It is for the last purpose only that the writ is employed in this- court.

In the present case the writ is asked, not to bring here any part of the record of the Court of Claims as it existed when the appeal was taken, but to obtain a new record of a new proceeding which has been had since and by which the judgment appealed from has been vacated and a new trial granted in the court below. The object is to inform us not of what was done before the appeal, but what has been done since. Our action under the appeal, however, is confined to what was done before, and if we act at all upon what has been done since, it must be in consequence of some new jurisdiction to be acquired. From what has already been said it is clear that for such a purpose we have no power to issue the writ.

The Court of Claims, by granting a new trial, has resumed control of the cause and the parties. This it had the right to do. Such a power may be somewhat anomalous, but it is expressly given, and, every person, when he submits himself to the jurisdiction of that court for the prosecution of his claim, subjects himself to its operation. The proceedings under which the new trial was obtained are now a part of the record below, and after judgment is finally rendered may be brought here by appeal for review.

Let an order be entered dismissing the appeal, upon the motion of the United States. The motion for a writ of certi-orari is denied.  