Sebastian Hiriart, plaintiff in error v. Jean Gassies Ballon

Sebastian Hiriart, plaintiff in error v. Jean Gassies Ballon. Louisiana. The district court of the-United States for the eastern district of Louisiana, in conformity with the provisions of the act of congress of the 26th of May 3824, adopted, as a rule of practice in that court, the regulations established by* a law of Louisiana, by which, on appeal bonds, when the appellants failed ip their appeal, on the coming in of the decree or judgment' of the appellate court, a summary judgment on motion should be entered against principal and securities in the appeal bonds. Under this rule, after the affirmance of a decree Of the district court by the supreme court of the United States, and thejillng of the mandate of the . supreme court; the district court, on a motidii for a rule on the security in an appeal bond to show cause why judgment should not be entered against him on the first day of the next term, and no cause being shown, entered a judgment against thé.seourity. The party against whom the judgment was entered, afterwards came into court, and prayed a trial by jury, which was refused ; and he prosecuted this writ of erro> to reverse the judgment of the district court refusing the said triah By the Court. The rule of the district court of Louisiana follows the analogy of the laws of- Louisiana, being modifiéd only so far as is proper to suit the organization of the courts of the United States, and to conform to the laws thereof. The sunimary judgment is therefore strictly authorized, and the party had no right”toatrial by jury. In becoming a security he submitted himself to be governed by the fixed rules which regulate the practice of the court. An appeal was taken in the same case to a decree of the district court dissolving an injunction. Although this appeal jvas riot before the court, the court said: the decree being only interlocutory, and not final, is not the subject of an appeal. General rules for the government of the United' States court in the eastern district of Lousiana, in suit4 in. that court. [See note (a).1 IN error to the. district court of the United States for the eastern district of Louisiana, This case was submitted to the court by Mr Benton, for the .appellee, on a printed statement. The appelleeinthiscase,whowas the plaintiff in the courtbe-low, instituted his suit in the district court of the United States for the eastern district of Louisiana, against one Pierre Oassies, and obtained a judgment, against him in the due course of law, for the sum of 3100-dollars, with interest at the rate of five per cent, from the 1st of December 1829, until paid, and costs of suit; from which judgment an appeal was taken to this court by said Pierre Gassies, who gave, as security to the appeal bond, the present appellant, in the penalty'of 4500 dollars, which appeal was h£ard in this court at January term 1832. 6 Peters 761. A judgment confirming the judgment below was rendered ; and upon said judgment and. mandate of this court in due course of proceeding, an execution issued against the property of said Pierre G assies. After various proceedings liad relative thereto, the marshal of the said district made his return in said case, that the sum of 375 dollars and 50 cents. alone had been made from the property and estate of said Pierre Gassies; for which sum a credit was given upon the execution the 31st of January 1833. Upon the 13th of April .1833, a motion was made in the district court, that Sebastian Hiriart,. the appellant, show cause on-the first day of' next term, why judgment should not *be entered against him, for the amount of the judgment, damages, interest and costs ; and why execution should not issue against him. At the proper time the said appellant filed, his answer; and after argument, &c., judgment was given .against the-appellant, upon said appeal bond; and the appellant prosecuted this appeal. Execution issued upon this judgment on the 1st of.July 1833, and was levied upon bis property,, but the sale of it was stayed by an injunction issued by the judge of said district court, upon the 27th of July 1833. On the 28th of December 1.833, the said injunction was dissolved, from which dissolution of the injunction the appellant prayed an appeal to thi's court. The district judge refused to allow this writ of error, assigning for-the same the. following íeasons. “ The act of congress forbids any writ of error or to be taken, except from a final judgment. The supreme court of the United States, in the case of Western et al. v. The City Council of Charleston, % Peters- 449, have given a judicial definition of this word c final,’ It is there said ‘ the word- final must be understood,,in the section undér .consideration, as applying to all judgments and decrees which determine the particular causé.’ That is, as I understand it, only such judgments as conclude the rights of the party can be considered final in the sense of the law. “In the.cáse under consideration, the rights of the party-complainant, as to his liability to pay this debt (for that was his own' stipulation in case the principal did not), were passed upon at- the time the judgment below was affirmed, and at all events, when judgment was given against him on the rule to show cause as above referred to, then perhaps he might have de- - feáted the obligation by the plea ‘ non est factum’ or some other ; but the dispute now is merely as to the remedy sought - to enforce a right already determined by both courts. “ In the case of Young v. ‘Grundy, 6 Cranch 51, it is said, ‘an appeal does not lie from an interlocutory decree dissolving an injunction.’ And in • Gibbons v. Ogden, 6 Wheaton 448, the court say, ‘ nor from a decree affirming a decretal order of an inferior court refusing to dissolve an injunction.’ “I am aware that the technical expression, ‘interlocutory judgment,’ is usually applied to incidental orders, made in the progress of a cause, not affecting the main question to be aftér- . wards determined by the court; but all incidental orders are ‘interlocutory,’ whether they be made pending or after the determination of the main question, and these orders may be made so long as the case is within the control of the court, and all cases are within the control of the court until its judgment is fully executed. When an injunction is obtained suspending an execution, the object is not to bring the judgment itself into' review, but to inquire whether an improper attempt is made to enforce it. “ Injunctions are grantable at chambers. Now it will not be preteudéd that a verbal refusal of a judge to grant an injunction would sustain an.appeal; but if he should, through inadvertence, grant it, when no equity appeared on. the face of the petition, or on further examination it should be found to be unfounded, and he should then refuse to perpetuate'it, what difference is there in reason, why a refusal to make it operative, after a full investigation of its merits, should give the party any more right to appeal, thaii his refusal in the first instance 1 “It may be said that when a dispute arises as to the right of .a party to appeal, the case ought to be sent up to the appellate , court for its determination as to that right. To this there are two answers : 4. Where the law itself has fixed the amount from, which an appeal can be taken, and that amount is palpably below the sum so fixed; or when the appellate court lias given a construction to the law embracing the. right of a party to appeal, in a given case, as .1 conceive has been done in cases similar to this, it would be treating the court with disrespect to send to it a case, of which, according to settled law, it could not take cognizance. ■ “ 2. However much I am disposed to have my decisions reviewed, yet I am as much bound to guard the rights of one party, as the other; and when my judgment is convinced that the law does not authorise an appeal,.and which if granted would operate injuriously to the other party, I feel bound to refuse it. Besides if this party has a right to appeal upon the ground stated, his security in the appeal bond, in .case of his insolvency, would'have the same right, on mak- • ■ing a sufficient oath, to obtain an injunction, and so on ad infinitum.” After the order to dissolve the injunction, the plaintiff below took out an alias execution against the property of Sebastian. Hiriart, the prior execution having been returned into court. On the 12th.of April .1834, Mr Slidell, counsel for Hiriart, obtained, on motion* añ order that the defendant, Jean Gassies Ballon, show cause, on Monday, the 14th iiistant, at 11 o’clock, A. M., why the execution issued in this case should not be 'quashed, and all further proceedings on the judgment, rendered in this case, suspended on the ground that the supreme court lias .accorded a writ of error which had been refused by this court before the execiition issued. And ou the 14th of the same month, the following order was made. The rule taken by the plaintiff on the defendant came on this day before the court, when, no opposition being made by the counsel for the defendant, it is ordered that the same be made absolute, on condition that’the plaintiff .enter into bond, with good and sufficient sureties, to respond to the judgment enjoined against.by the plaintiff. The questions submitted to the court, on the part of the defendant in error,'are: whether there be error in the proceedings of the district court of Lousiana in the refusal of the writ of error; and whether the judgment and decree of the said court, ought not to be confirmed with damages; the present application being madé for delay only. The record, in this case, contains the “ General Rules” for the government of the United States court in the eastern district- of Louisiana, in civil causes, or suits at law, as contradistinguished from admiralty and equity causes arid criminal prosecutions, made in pursuance of the seventeenth section ofithe judiciary act of 1789, and of the first section of the act of congress of the 26th of May 1824, entitled “ an act to regulate the mode of practice, in the courts of the United States for the district of Louisiana.” It has been considered -useful, by the Reporter, to insert these “ General Rules” in this volume. ■ “ At a stated session of the court of the United States of America, for the eastern district of Louisiana, held at the city of New Orleans, on Monday, the 14th day of December, Anno Domini 1829. “ Present the honourable Samuel H. Hakper, judge of said court. “ Ordered, that the following rules be adopted by this court; and all other rules for the practice of this court are annulled from and after this date. “ GENERAL RULES. “ Rule 1. Suits at law shall be commenced by writ or process, under the seal of the court, and signed by the clerk, and be tested in .the name of the judge, (or if that office shall.be vacant, of the clerk) and shall issue in the name of the president of the United States to the marshal of the district, commanding him to arrest or summon the defendant, (as the case may be) and shall be returnable on the first day of each term. “ Rule 2. A petition addressed to the court shall accompany the writ: it shall state the nature of the case with sufficient precision of circumstance, time and place ; which petition shall be .signed by the party or his counsel, and shall contain a prayer adapted to the nature of the case ; and whatever documents are referred to in the petition, as making part thereof, shall be filed with it, or if copies thereof are annexed, the defendant or his attorney shall have oyer of the' original, if he demand it, before he shall be requirod to file his answer or plea. The writ and petition being filed, a copy thereof shall be made .in the French and English languages, (in cases where the mother tongue of the defendant is French) and, together with the original Writ of process, be delivered to the marshal, wjip shall serve said copy on the defendant, by delivering the same to him personally, or by leaving it at his usual place of abode, ten days before the day of return mentioned in the-writ. allowing one day in addition for every twenty miles the defendant may retide from New Orleans. The writ or process shall run in the words which have 'hitherto been adopted in this court. The marshal shall, whenever any writ or process shall have been served, indorse on the same the time of service and its distance from the city, if the same be made out of the limits thereof. “ Rule 3. The answer or defence of the defendant shall be signed by him or his attorney, and filed with' the clerk in the English and French languages, (if the mother tongue of the plaintiff be French) on or before the first day of each term; and if no defence or answer shall be .filed, nor time given for answer, the court shall, at the first day of sitting thereafter, oh the application of plaintiff, cause judgment by default to be entered against"the defendant, which if not set aside within three days thereafter, the court shall, if required, enter up final judgment against the defendant; -if the demand be liquidated by a note, bond, contract, or foimer judgment, and if the sum demanded be uncertain, the court shallproceed to hear testimony, assess the damages, and render final judgment for the sum so assessed. “ Rule 4. The ansv’er shall contain nothing impertinent or irrelevant; but the defendant shall be required to plead all such matter of law and fact in the same answer as he may think proper to rely on, conformably to the rules of practice adopted by the first judicial court of the state of Louisiana, prior to the adoption of the ‘ Code of Practice;’ and in all cases where matters of law and matters of fact are pleaded in the same answer, the pleas on points of law submitted to the court, shall. be argued and determined before the issues of fact shall be submitted to the jury. “Rule 5. The clerk shall keep a docket in which all cases that are at issue shall be entered in the following order. 1. Caus.es in which both issues to the court and to the country are made up. 2. United States causes of a general nature, and criminal prosecutions. 3. Jury causes, other than those of the United States. 4. Court causes, or suits to be tried by the court alone. 5. All admiralty causes, (the United States admiralty causes having precedence on the list). And in setting the causes ibr trial they shall be called in the order thus prescribed. “ Rule 6. 411 causes at issue, whether in point of law or fact, shall be called on the second day of each term at the meeting of the court, and set down for trial. In all cases in which pleas both to the court and country are made, the pleas involving matters, of law, or issues submitted to the court alone, shall be first tried; and such of them as may be directed to be tried on the issues of fact, shall be immediately transferred to the jury docket, to be tried on the merits during the same term, in the discretion of the court. In all cases in which dilatory or declinatory pleas or exceptions to form are made and overruled, the party making such plea or pleas, or exceptions, shall pay to the plaintiff all costs of suits up to the time of their being decided against him; and when a plea is made to the jurisdiction of the court, involving the question of citizenship of a party, it shall be tried by a jury,.and if the verdict sustains the jurisdiction, all costs shall be paid to the plaintiff, and the cause shall be immediately tried by the same jury on its merits, at the option of the plaintiff, if by the pleading it be a jury cause, if hot it shall be forthwith submitted to the court for decision. “ Rule 7. If it be the intention of a party to take an issue on the fact, he must expressly pray for a .jury, otherwise the cause shall be wholly tried by the court, (except cases where the law itself requires a jury) and shall be put in the fourth class of cases on the docket. “ Rule 8. When a jury is about to be sworn in a cause, each party may peremptorily set aside three of them, but no more, except for a legal cause. “ Rule 9. The clerk shall enter no cause r n the docket until the pleadings are fully made up, nor shalhany cause be entered thereon except by the clerk or his deputy. “ Rule 10. If any docketed cause shall be called at two courts and not tried, the plaintiff shall be called, and if he does not immediately go to. trial'he shall be non suited, unless it shall appear that it had been continued at defendant’s motion, of other satisfactory cause shall be shown to the court, on oath, to prove it was not postponed on account of the plaintiff’s n.eglect, or unless the defendant, at such second calling, shall obtain a further continuance; but nothing in this rule shall be construed to prejudice defendant’s right of calling for a non suit, at any previous court. “ Rule II. If a cause is at issue, and either party move for a continuance of it on account of the absence of a witness, such, motion must be on oath or affirmation of the party, his agent or attorney, in writing, subscribed by him, stating that some witness, residing within the reach of the process of the court, (who shall be named and - the place of his residence mentioned) is wanting; that ho believes that such witness is-a material and competent witness in the cause ; and, to satisfy the court of his materiality, shall state what’ fact or facts it is expected or believed the witness will prove on the trial; that all reasonable endeavours have.been used to procure his attendance at the terra; that he cannot safely go to trial without the benefit of his testimony ; and that a continuance is not prayed for the purpose of delay. “ If an application be made for a continuance, and also for a commission to procure evidence, (the other party not consenting thereto) the affidavit must state what fact or facts it is believed will be proven’ on the trial of the cause, that the testimony sought is competent and material, that he cannot safely go to trial without the benefit of it, that.he believes it can be procured in a certain time, which shall be specified; and that the application is not made for delayl If a commission issue, interrogatories must be filed, as directed in the following rule. “ Rule 12. The clerk is authorized, in vacation, on the written application of the plaintiff or his attorney, to enter the discontinuance of a cause, and wilh consent of counsel, written, signed, and put on file, to enter on the minutes, rules and orders, preparatory to trial of causes pending therein, and to issue commis- . sions to take testimony in all cases, at the instance of either party, and if it be not the intention of the party taking out the commission to take testimony de bene esse under the thirtieth section of the judiciary act of 1789, he shall file interrogatories and sel vc a copy thereof on the opposite party or counsel,1 who may, if he thinks proper, add cross interrogatories, and return the whole to the other within three days, or, in default thereof, the commission may be executed without the cross interrogatories. “ Rulo 13. No amendment shall be made to any petition or answer, unless it be made previous to sotting the cause for trial, (except as to mere matters of form, which may be made at any time before trial) and no amendment shall be mode at any time, tending' wholly to alter the nature of the action or defence. “ Rule 14. In all rules to show cause, the party called upon shall begin and end his case ; and on special matters,-either springing out of ii cause at issue or otherwise, the actor or party submitting a point to the court, shall in like manner begin and close and so shall a defendant who admits the.plaintiff ’q case and takes upon himself the burden of the proof, have the like privilege. “ Rule 15. In all cases of affirmance of judgment on writs of error from judgments pronounced in this court, a rule may be taken on the principal and his sureties in the appeal bond, returnable ten days after recording the mandate of the supremo court, to show cause why execution should not issue against them ; and, no cause being shown, judgment shall be entered against them and the principal, and execution issue accordingly. ' “ Rule lGt.U'pon the return of an award or umpirage, a three d,ay rule shall be served upon the party or his attorney! against whom the award or umpirage may be, and should the same be confirmed by the court, judgment shall thereupon be entered and execution issue in the'same manner as if judgment had been obtained on verdict. “ Rule 17. Every motion made for any rule or order shall be submitted to the court in writing, by the counsel who makes it, and if granted by the court, shall”be delivered .to the clerk to be entered oh the minutes. “ Rule IS. Not more than two counsel shall be permitted to argue on the samé side of a cause, without leave of the court. “ Rule 19. All applications for new trials shall be made within three days after the verdict of the jury, or judgment of the court (as the case may be); and, if no such application bo made, or being made, shall be overruled, judgment shall be. signed, and.execution issue if required. “ Rule SO'. Counsellors and attorneys licensed by the supreme court of this state, may be admitted as such in this court; but no attorney in fact shall be permitted to appear as.an attorney at law, to prosecute or defend any suit. “ Rule 21. After the argument of a cause upon matters of law, submitted to the court, a statement.in writing of the points relied upon, and a note of the authorities cited, may bo required of the counsel on both sides, by the court, before giving judgment thereon. “ Rule 22. In all cases where a sum certain is sworn to be due from defendant to plaintifF, special bail shall bo ordered ; and in all other cases, affidavit being made of the facts-, the judge, (or in his absence the clerk) shall order tho do-fondant to be'hcld to bail, in such sum as he may think just; but no attorney at law shall bo received as special bail. “ Rule 23. The marshal shall not be bound to serve any subpuma' on a wuness on the day on which the cause is set for trial, wherein ■ such witness is required, unless specially directed .to do so by the court. “ Rule 24. It shall be the duty of the marshal to summon juries according to law, to serve at each stated term of the court, and he, or his deputy, shall serve a written summons on each juror,' expressing the day, hour and place, at'which he is to appear, and also whether he is to serve as a-grand or a petit juror. “ Rule 25. To all the writs of venire, issued for summoning jurorthe marshal.or his deputy- shall make a return upon qath, written at length, before the clerk of the court, and in the said return shall make one class'of those, who were summoned personally, a second class'of those for whom summonses wore left at their hous.es, and a third class of those who could not be.found." ■ “ Rule 26. The clerk shall keep a book, in which shall be entered the namés of all persons v. ho shall be summoned as jurors, and on- every call of the names, shall note opposite each name the presence or absence of the juror ; or, if any juror, once empaunelled, shall refuse or neglect to attend- punctually every morning on the call of the pannel, unless previously excused by the court, he shall be cited to show cause why lie should nof. be fined for his’default; and if he show no suificient cause, ho shall be> fined, or otherwise punished, according to law. “ Rule 27. All moneys paid into the court of the United States, or received by the officers thereof, in causes pending therein, shall be immediately (that is, the day after that on which they shall be received) deposited in the Branch Bank of the United States, in the name and to the credit-of said court; and at each stated session of the court, the clerk -thereof shall present an account to the court of all moneys remaining therein, subject to the order thereof, stating particularly on account of what causeg said moneys are deJ posited, which account, with the vouchers thereof, shall be filed in court. “ Rule 28. All notes and obligations, and the gross amount of moneys arising from the sale of property-, in pursuance of any order or decree of this court, shall be paid into court by the marshal, to be deposited in the Branch Bank; and an account of sales of such property, so disposed of, shall be filed in court at the same time; and m the cases mentioned in this and the preceding rule, the costs and charges of the suit shall be taxed and first paid out of the moneys in court. “ Rule 29. Money deposited in court pending a suit, shall not be delivered ,on bond to any party or person.” ’ “ GENERAL RULES OF PRACTICE IN ADMIRALTY. “ Rule 1. Tile material facts in a libel (except in case of a libel for seamen’s wages, or where lhe United States are. libellant*) must be sworn to by tlie libellant, his agent or attorney, before an order for admiralty process shall issue, and every claim must be sworn to in the like manner, before filing the same. “ Rule 2. When the process is inrem, and a party is also personally cited, the citation shall be made returnable, at the same time with the warrant, to wit; in fourteen days : and when the proceeding is altogether in personam, the process shall likewise be returnable in fourteen days. “Rule 3. In all cases of seizure and prosecution' of any ship or vessel, goods,-wares and merchandize, when the claimant may bond of right under the 89th section of the act of 2d March 1799, 1 to regulate the collection of duties on imports and tonnage,’ and in all other cases where the district attorney is consenting to such bonding, the same may be done in the manner directed by the said section, the district attorney naming the appraisers and approving the security. “ Rule. 4. The clerk, or in his absence, the deputy clerk, be and he is hereby appointed, a commissioner, before whom appraisers of ships or vessels; or goods, wares and merchandize, seized for breaches of any law of the United States, may be sworn or affirmed. “ Rule 5. Appraisers, actings under the orders of the court, shall be severally entitled to receive five dollars .in each case wherein they may make an ap-praisement, to be paid by the party at whose instance the appraisement shall be made. “ Rule G. All appraisements and bonds taken in pursuance thereof, shall bo copied at length in a book to be kept for that purpose, and the originals filed in court. • “Rule?. No vessel or merchandize, in the custody of the marshal, shall be released upon bond, until the costs and charges of the officers of the court (so far as the'same may have accrued) shall be paid by the party giving bond. “ Rule 8. When property is in the hands of the marshal, he shall be authorized, from time to time, on motion to that effect, to -sell so much of the same at public auction, after notice, as may be necessary to defray the costs and charges incident to the keeping of the same. “ Rule 9. Moneys paid into court shall net be paid out in pursuance of any décreo of the same, upon which an appeal may be -had', until ten days (exclusive of Sundays) shall have elapsed after such decree shall have been made, and when an appeal shall be entered, the appellant shall, within ten days, exclusive of Sundays, from the time of making the decree, give security for damages and costs, and if- security shall not be given, within that time, the decree may be executed as if there- had no appeal been prayed for. “ Rule 10. In proceedings touching seamen’s wages, when a party is cited to show cause against the issuing of admiralty process, oath must be made of the service of such citation, in casé'th'e party cited does not appear, except the citation has been returned, and served by 'the marshal, or his deputy. “ Rule 11. No claim shall be filed after the expiration of monition, or return day of the warrant, without the leave of the court, or by consent-of the parties libellant, in writing, and put on file. “ Rule 12. In all cases in which the United States are libellants, the clerk is authorized to issue admiralty process without an order from the judge. • “ ADDITIONAL RULES. “ 20th March 1830. “ 1. No denial of the allegation of citizenship made in a petition, nor any. dilatory exception or plea in abatement involving matters of fact, shall be allowed, unless verified by affidavit filed therewith by the counsel, agent or party, as to their belief of the truth thereof. “ 14th June 1830. “ 2. The testimony of witnesses given at the bar, shall not be reduced to writing by the clerk of the court, or any other person in trials at law, as con-tradistinguished from admiralty and equity causes. “ 3. Facts shall not be submitted to a jury in order to obtain a special ver- • diet in any cause, except by the consent of parties entered on record. “4. No verbal agreements or arrangements of parties, or their counsel, touching any cause depending in this court, shall bo deemed of any validity, or noticed in-any way by the court. “ 28th May 1831. “ It is ordered, that the twelfth rule of the rules of this court relating to suits at law, be so amended as to allow •plaintiffs in all cases to take out commissions to examine witnesses after the return of service of process; the plain, tiff serving the defendant with a' copy of his interrogatories, as heretofore required : and when defendant resides in the country, lib shall be allowed, in addition to the time now prescribed, one day for every twenty miles distance he may reside from the city of New Orleans, to file cross-interrogatories t commissions on the part of defendant shall issue only after issue joined, and in conformity with the previous practice of this court. [MAJORITY — Mr Justice Story] Mr Justice Story delivered the opinion of the Court. This is a writ of error to the district court Of the eastern district ofLouisian a. The plaintiff in error was surety in an appeal bond given upon a writ of error to a.judgment of the district court of Louisiana, rendered in 1830, in the suit of Jean Gassies ‘Ballon v. Pierre Gassies ¡’which judgment was affirmed in the supreme court of the United States in 1832. Upon the cause coming back to the district court, upon the mandate of the supreme court, execution issued against the judgment debtor, Pierre Gassies, and was returned satisfied in part. Upon motion afterwards made, and due notice to Hiriart, a summary judgment was entered against him upon the appeal bond ; in pursuance of a rule of the district court. The rule is in the following. wTords : “ in all cases of affirmance of judgment, on writs of error, from judgments pronounced in this court; a rule may be taken on.the principal, and his sureties in the appeal bond, returnable ten days after recording the mandate of the supreme court,, to show cause why execution should not issue against them; and no cause being shown, judgment shall be entered against them and the principal, and execution issue accordingly.” Hiriart showed for cause, (among other tilings, •not necessary to be stated, as they are not cognizable on a writ of error) that the proceeding was irregular, and that if liable' on the bond, his liability must be established by an ordinary action, before a competent tribunal. The district court, notwithstanding, entered the sunynary judgment; and the.-writ' of error is taken to this judgment. Theprincioal point relied oirseems to be-that the party was entitled to a trial by jury; and that no such summary judgment is authorized by law. Whether this objection is well founded depends upon the act of congress of the 26th of May 1824, for the regulation-of (lie practice of the district court of Louisiana. That act declares, that the mode of proceeding in civil causes in the courts of the United States in Louisiana, shall be conformable to the laws directing the mode of practice in the district courts of the states; with a power in the judge, to make rules to adapt such laws of-procedure to the organization of the courts of the United States. The laws of Louisiana allow appeals from the district courts of the state, to the supreme court, upon givingan appeal bond with seeurity; and' authorize a summary judgment upon such appeal bond, upon mere motion in the court from whence the appeal was taken, in execution of the judgment of the appellate court, The rule of the district court of Louisiana, therefore, follows the analogy of the laws of Louisiana, being modified only so far as is proper to suit the organization of the courts of the United States, and to conform to the laws thereof. The summary'judgment, therefore, was strictly authorized; and the party appellant had no right to a trial by jury. ’ In becoming a security he submitted himself to be governed by the fixeid rules which regulate the practice of the court. The judgment is affirmed with damages at the rate of six per-cent, and costs. It may be added, to prevent misapprehension; that there is also in the same record, an appeal taken to a decree of the district court, dissolving an injunction to the judgment granted upon a petition in .the nature of a bill in equity. This appeal is not before us : and the decree being only interlocutory, and not a final decree, it is not the subject, of an appeal. .This cause came on to be heard- on the transcript of the record from the district court of the United States, for the eastern district of Louisiana, and was argued by counsel; on consideration whereof, it is adjudged and ordered by this court, that the judgment of the said district court in-this cause be, and the same is hereby affirmed with costs and damages at the rate of six per centum per annum. • See Code of Procedure of Louisiana, art, 570, 573,575, 579, 596, 597.