#### Thomas P. Clark, Plaintiff in Error, v. Henry J. Ross, Defendant in Error.

ERROR TO ADAMS.

A writ of error will not lie where the judgment, exclusive of costs, is less than twenty dollars. The word “ appeals," used in the 32d section of the practice act of 1827, applies equally to writs of error.

Opinion of the Court by

Justice Smith.

This is a writ of error, brought to reverse the judgment of the circuit court of Adams county, on an appeal from a decision of a justice of the peace affirming such judgment, which amounted to nineteen dollars, and no more.

A preliminary question has been raised, denying the jurisdiction of this court in a case where the judgment below does not amount to twenty dollars, exclusive of costs.

The 32d section of the act concerning practice in courts of law, passed in January 1827,* declares that “ appeals from the circuit courts to the supreme court, shall be allowed in all cases where the judgment or decree appealed from be final, and shall amount, exclusive of costs, to the sum of twenty dollars, or relate to a franchise or freehold.”

This provision has clearly precluded the bringing of an appeal in a case like the present, but it is contended that it could not extend to writs of error.

We are then led to consider whether in the use of the term “ appeals” the legislature intended to confine the exception to the case of appeals, using the word in its strict technical sense, or whether it was not used to embrace all cases brought into the supreme court, where the judgment was less than twenty dollars, without regard to the name of the process or manner by which it is brought into this court. A proceeding in error is, in truth, an appeal from the decision of <>an inferior to a superior tribunal. The term appeal implies the removal of a cause for a rehearing upon the facts as well as the law, yet in this court the reviewing of appeals has never received that interpretation. From this uniform exposition, in cases of appeals, and the terms of the law defining the cases in which appeals should be granted, it may be fairly inferred that the object of the legislature was to prevent the supervision of all cases in the supreme court, where the judgment was less than the sum of twenty dollars, except it should relate to a franchise or freehold.

*335 McConnel, for plaintiff in error.

Cavarly, for defendant in error.

This construction has an additional support in the fourth article of the constitution creating the supreme court and defining its jurisdiction. By the second section of that article it is declared that “ the supreme court shall have an appellate jurisdiction only, except in cases relating to the revenue, in cases of mmdamus, and in such cases of impeachment as may be required to be tried before it.” The framers of the constitution have here used the word appellate, in its extended and general signification, intending to embrace all cases without regard to the manner in which the cause might be removed. If it did not receive this construction it might be pretended that the powers of review of this court were limited to such cases as were strictly appeals, and we might then cavil on the question whether a writ of error was an appeal. No one could subscribe to such an absurdity, and thus circumscribe the jurisdiction of this court.

If this reasoning be correct, as it must necessarily seem to be, it follows as a corollary, that the word “ appeals,” used in the thirty-second section of the practice act must equally apply to cases of writs of error.

The judgment of the circuit court being for less than twenty dollars, exclusive of costs, this court is bound to declare that it has no jurisdiction-of the cause, and that it must be for that reason dismissed and the defendant in error recover his costs, (a) , (1)

Writ of error dismissed.

*

Rev. Code of 1827, p. 318.

(a)

A writ of error is a writ of right, and can not be refused except in capital cases. 6 Johns. Rep., 337.

(1)

This decision has been expressly overruled by the case of Bowers v. Green, 1 Scam., 42.

Where the subject matter of a suit does not relate to a franchise or a freehold, and where the judgment does not amount to twenty dollars exclusive of costs, the remedy is by writ of error, and not by appeal. Washington County v. Parlier et al., 4 Gilm., 353. Purple's Statutes, 827, Sec. 47. Scates’ Comp., 264.

To justify an appeal on the ground that the judgment relates to a freehold, the right to the freehold must have been the subject directly of the action, not incidentally or collaterally, and the judgment must be conclusive of the right until reversed. Rose et al. v. Choteau, 11 Ill., 167.

An appeal is not allowed to a party from a judgment in his own favor. He must prosecute a writ of error. Addix et al. v. Fahnestock et al., 15 Ill., 448.

In all criminal cases, not capital, the writ of error is a writ of right, and issues of course. Stuart v. The People, 3 Scam., 395.

A criminal case can not be brought to this court except by writ of error. Mohler v. The People, 24 Ill., 26.