42   FEDERAL REPORTER. .
nial of the facts set up in the defense concerning the making ofthese
certificates, and that $8,819.70 of the claim therefor accrued more
than six years before the commencement of this action. The de-
murrer to this reply is overruled.
" The Hrst reply to the fifth defense is a confession and avoidance of
the same, the matter of avoidance being that, within 10 days from
the entry of the judgment in said former action, and before the com-
mencement of this one, the defendant “removed said cause," by a
writ of error, to the supreme court of the United States, alleging that
the judgment therein was erroneous and contrary to law, and ought
to be reversed; and that said defendant gave the proper bond, and
caused said writ of error to become a supcrsedeas, and the same is
still pending in said supreme court; wherefore said judgment is not
a final one, nor a bar to the maintenance of this action.
In his argument in support of this reply the plaintiff has gone over
much ground, and collated many authorities touching the subject.
Briefiy, the argument is: (1) A judgment of the circuit court, to
which a writ of error lies from the supreme court, is not, in the nature
` of things, ajinal judgment, that can have the effect of a bar or an
estoppel, the proceeding in the supreme court on the writ of error be-
ing merely a continuance ofthat in the circuit court; aud, (2) irre-
spective of. the effect of the writ of error in the premises, under sec-
tion 505 of the Code of Civil Procedure, which provides that an action
· is deemed to be pending until its final determination on appeal, or
the time for an appeal has expired, a judgment of the circuit court
, cannot be pleaded' as a bar or an estoppel during the pendency of a
writ of error thereon, or until the time for taking such writ expires.
This question has been heretofore considered by me in Sharon v. H LLL,
26 Fed. Rep. 337, and Oregonian Ry. Co. v. Oregon R. it N. Co.,
27 Fed. Rep. 284, and a contrary conclusion reached.
` In speaking of the original modes of reviewing a judgment in an
action at law, and a decree of a court of chancery or admiralty, it
was said, in Sharon v. Hill, supra:
"A judgment in an action at law could only be reversed and annulled for
error appearing on its face, For this purpose a writ of 0l‘I`01' issued out of the
court above to bring up the record for examination. This was considered a
new action to annul and set aside the judgment of the court below; and if
the writ was seasonably sued out, and bail to the action put in, it was a
supersedeas, so far as to prevent an execution from issuing on the judgment, ·
pending the writ of error, but left it otherwise in full force between the par-
ties, either as a ground of action, a bar, or an estoppel. 2 Bac. Abr. 87; 3
' Bl. Comm. 406; Railway Co. v. Twombly, 100 U. S. 81. But in the equity -
and admiralty courts the remedy for an erroneous decree is an appeal, which
removes the whole case into the court above for trial de novo. There is no
decree left in the lower court, and pending the hearing on appeal there is no
decree in the case, and there can be no estoppel by reason thereof."
In the case of Railway O0. v. Twombty, supra, the matter is not
discussed, but disposed of by the simple statement of the rule that a.