The first two exceptions-those relating to the motion and order for judgment, and to the motion and order to set aside what had been directed-relate to matters wholly within the discretion of the Circuit Court, and are not reviewable here. This is not merely settled by repeated decisions, but is expressly directed by an act of Congress prescribing the limits of this court's jurisdiction upon writs of error to the Circuit Court of California. [1]
The third exception related to the examination of witnesses on the trial. This exception must rest on the assumption that inasmuch as the pleadings consisted only of claim and answer, the answer must be taken as true, and could not be contradicted by witnesses.
But the statute of the State, which has been adopted as a rule by the Circuit Court of the United States for the District of California, expressly declares that new matter in an answer shall, on trial, be deemed controverted by the adverse party. [2] Under that statute the answer of the defendant below could not be taken as true. Witnesses, therefore, were properly examined.
The only other exception is to the form of the judgment, which was originally for the amount due, payable in gold coin, for duties; and afterwards, during the term, amended by order of the court so as to make it 'payable in gold and silver coin, for duties.' The objection is to the amendment and to the statement in the judgment that it is 'payable in gold and silver coin, for duties.' The amendment, made during the term, was clearly within the power of the court. The statement merely declared the legal effect of the judgment. The whole case shows that the judgment was for duties on imports, and nothing but gold and silver coin has been made a legal tender for this description of indebtedness to the government. This statement, therefore, is strictly correct, and though unnecessary, could not affect the validity of the judgment.
AFFIRMED WITH COSTS.
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