(IJnrnpll IGaui ^rl^nnl ICibraty „_ Cornell University Library KF8816.A21914 19199uppl. The annotated rules of practice in the U 3 1924 020 170 977 Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924020170977 THE ANNOTATED RULES OF PRACTICE IN THE- UNITED STATES COURTS EDITED BY , WILLIAM WHITWELL DEWHURST ATTORNET-AT-LAW SECOND EDITION THE BANKS LAW PUBLISHING CO. NEW YORK 1914 r^y CoPTBIQHT, 1907, BT THE BANKS LAW PUBLISHING COMPANY COPYBIGHT, 1914, BT THE BANKS LAW PUBLISHING COMPANY PREFACE Changes made in the Rules of the Supreme Court and the Circuit Court of Appeals by reason of the adoption of the Judicial Code, and the revision of the Equity Rules promul- gated by the Supreme Court November 4, 1912, have ren- dered it necessary to issue a Second Edition to this book. Questions of practice will arise under the new Equity Rules making the annotated cases decided imder the former rules of great help and value in their solution. Where applicable they will be found printed under the corresponding rule as it now exists. The reception given the first edition by the Bench and Bar has been so flattering that the editor feels justified in indulging the hope that the new edition will meet with even greater approval than was accorded the book when first published. William Whitwell DEWHUHst. Saint Augustink, Florida, January 1st, 1914. TABLE OF CONTENTS Page The Old Rules op the Supreme Court op the United States 1-23 The Rules op the Supreme Court op the United States Adopted at the January Term, a. d. 1858 . . . 25-41 The Present Rules op the Supreme Court op the United States, Annotated 59-200 The Rules op the Circuit Courts op Appeals, An- notated ... . . .... 211-354 The Rules op Practice op the Circuit Court op Appeals (Second Circuit) in Appeals in Admiralty . . 355-361 The Rules op the Court op Customs Appeals 363-368 The Rules in Equity Adopted a. d. 1822 . 369-377 The Rules in Equity Adopted a. d. 1842 . . . 379-413 The Rules op Practice in Equity as Adopted by the Supreme Court op the United States, Nov. 4, 1912, Annotated . . 431-603 The Rules op Practice in Admiralty as Adopted by the Supreme Court op the United States, An- notated 605-714 The Rules op the Supreme Court op the United States Relating to Appeals prom the Court op Claims . 715-717 The General Orders in Bankruptcy Prescribed by Supreme Court op the United States at its Octo- ber Term, a. d. 1898 719-734 Sections 24 and 25 op THE Bankruptcy Act 735-736 The Judiciary Act op September 24th, 1789 739-758 Sections 10 and 11 op the Act op March 3d, 1891, Estab- lishing THE Circuit Courts op Appeals . . 201-202 The Act op February 13th, 1911, to Diminish Expense OP Proceedings on Appeal . . ... 760-761 The Judicial Code . 762-826 Forms . . 827-843 Directions por Taking Appeals and Writs op Error and Making up Records 844r-849 TABLE OF INDEXES Page Index for the Present Rules of the Supreme Court by Numbers . 853 Index for the Present Rules op the Supreme Court by Sub- jects . . .... 855 Index for the Rules op the Circuit Courts of Appeals by Numbers ' . . . 867 Index for the Rules of the Circuit Courts op Appeals by Subjects . . . . .... 869 Index for the Rules of the Circuit Court op Appeals in Admiralty (Second Circuit) . 875 Index to the Rules op the Court of Customs Appeals . . 877 Index for the Rules op Practice in Equity (Promulgated November 4, 1912), by Numbers 878 Index for the Rules of Practice in Equity (Promulgated November 4, 1912), by Subjects 879 Index for the Rules op Practice in Admiralty as Adopted BY THE Supreme Court of the United States, by Num- bers .... 882 Index for the Rules of Practice in Admiralty as Adopted BY THE Supreme Court of the United States, by Sub- jects . . . .... 885 Index por the General Orders in Bankruptcy Prescribed BY the Supreme Court op the United States at its October Term, a. d. 1898 , . . ... 912 Index for the Old Rules op the Supreme Court of the United States, 1790-1857 .914 Index for the Rules of the Supreme Court op the United States, Adopted at the January Term, 1858 . . . 927 Index to the Rules in Equity Adopted in 1822 .... 930 Index to the Former Rules in Equity in Force Prior to February 1st, 1913 943 Index for Matters not Included in the Other Indexes . 951 Vll EXILES OF THE SUPREME COURT OF THE UNITED STATES From a. d. 1790 to a. d. 1852 1 Wheaton, XVIII— 1 Peters, VUI RtTLB I (February 3, 1790.) Ordered, That John Tuckek, Esq., of Boston, be the clerk of this court. That he reside and keep his office at the seat of the na- tional government, and that he do not cierk-s office to be at seat practice either as an attorney or counsel- Sit to^'pJS^'ks an'"t^ lor in this court while he shall continue to *"""^ " counsellor. be clerk of the same. Rule II CPebruary 5, 1790.) It shall be requisite (imtil further ordered) to the ad- mission of attorneys or counsellors to Quaiificationa of attor- practice in this court, that they shall °=y= ^nd counsellors. have been such for three years past in the supreme courts of the State to which they respectively belong, and that their private and professional character shall appear to be fair. Rule III (February 5, 1790.) Counsellors shall not practice as attor- counsellors not to act as neyS, nor attorneys as counsellors, in »«orneys; and vice versa. this court. 2 RULES OF THE SUPREME COURT Rule IV (February 5, 1790.) [Rescinded.] Counsellors and attorneys shall respectively Oath of attorneys and take the following oath, viz: "I, , counsellors. Solemnly swear that I will demean my- self (as an attorney or counsellor of the court) uprightly, and according to law; and that I will support the Constitu- tion of the United States." See Rule 6. Rule V (February 5, 1790.) All process of this court shall be in the name of the Pres- Prooess to run in the idcnt of the United States (unless and name of the President, j^^jj j^ gj^^jj otherwise be provided by law). Rule VI (February 7, 1791.) Counsellors and attorneys admitted to practice in this Oath of attorneys and court, shall take either an oath, or in p/^f"oi?h'';re"cribid proper cases, an affirmation, of the tenor ^''^"'°*' prescribed by the rule of this court on that subject, made February Term, 1790, viz: "I, , do solemnly swear (or affirm, as the case may be) that I will demean myself as an attorney or counsellor of this court, uprightly, and according to law; and that I will support the Constitution of the United States." Rule VII (August 8, 1791.) The chief justice, in answer to the motion of the Attorney- Practice of the courts of General, made yesterday, informs him cl??'ta''England^o'fur: and the Bar, that this court consider the nishoutunes of practice, practice of the courts of king's bench, and of chancery, in England, as affording outlines for the practice of this court; and that they will, from time to time, make such alterations therein as circumstances may render necessary. Now Rule 3. ttUiiES 01* THE SUPREME COURT 3 Rule VIII (February 4, 1793.) The court gave notice to the gentlemen of the bar, that hereafter they will expect to be furnished counsel to furnish state- with a statement of the material points ■"«'" «« p°'°t'- of the case from the counsel on each side of a cause. See Rule 29, Hule 53, and Rule 57. Novr Rule 21. Rule IX (February 17, 1795.) All evidence on motion for a discharge Evidence for discharge on upon bail must be by way of depo^tion, "^ t°b« by deposition. and not viva voce. Rule X (August 12, 1796.) When process at common law, or in equity, shall issue against a State, the same shall be served Process against a state; on the governor, or chief executive '"' ''^°'^ '° ^ ^"^^■ magistrate, and attorney-general of such State. Process of subpoena, issuing out of this court, in any suit in equity, shall be served on the subpoena to be served 60 defendant sixty days before the return days before its return day. day of the said process; and further, that if the defendant, on such service of the subpoena, shall Defendant not appear- _ , ing, complainant may not appear at the return day contained proceed ei porte. therein, the complainant shall be at liberty to proceed ex parte. Now Rule 3. Rule XI (February 13, 1797.) The clerk of the court to which any writ of error shall be directed, may make return of the same. Return to a writ of error; by transmitting a true copy of the record, ^°'" ™*''^- and of all proceedings in the cause, under his hand and the seal of the court. See Rule 31. Now Rule 8, Clause 1. 4 UULfiS OP THE SUPREME COURT Rule XII (August 7, 1797.) No record of the court shall be suffered by the clerk to Records of court not to be taken out of his office, but by the be taken from clerk's » , . . i • j i_ office; except how. coiisent 01 the courtj otherwise to be responsible for it. Now Eule 1, Clause 2. Rule XIII (August 15, 1800.) IN THE CASE OF COUKSE V. STEAd's EXECUTORS, 4 Cra. 403. The plaintiff in error shall be at liberty to show to the Sum or value in dispute; Satisfaction of this court, that the matter how may be shown. ' j^ dispute exceeds the sum or value of two thousand dollars, exclusive of costs; this to be made to appear by affidavit, on days' notice to the opposite party, or their counsel in Georgia. Rule as to affidavits to be mutual. Rule XIV (August 12, 1801.) Counsellors may be at- Counsellors may be admitted as attor- '°™®''*' neys in this court, on taking the usual oath. See Rule 3. Rule XV (December 9, 1801.) pefendant not appear- In every case where the defendant in ing, plamtin may pro- . ceedeiporte. error fails to appear, the plaintiff may proceed ex parte. Now Rule 17. Rule XVI (February Term, 1803.) Where the writ of error issues within thirty days before When defendant may go ^^^ meeting of the court, the defendant SntiiuedonwrirofeSir! '" ^'"™'' ^^ ^* ^^^"^y *» ^uter his ap- pearance, and proceed to trial; otherwise, the cause must be continued. See Rules 19 and 43. KULES.Or THE SUPREME COURT 5 Rule XVII (February Term, 1803.) In all cases where a writ of error shall delay the pro- ceedmgs on the judgment of the Circuit Damages, when writ of Court, and shall appear to have been ^"" '"^'* °"* '"' "^^'"y- sued out merely for delay, damages shall be awarded, at the rate of ten per centum per annum on the amount of the judgment. Now Kule 23, Clause 2. Rule XVIII (February Term, 1803.) In such cases, where there exists a real controversy, the damages shall be only at the rate Damages, where there ie of nx per centum per annum. In both « «ai controversy. cases the interest is to be computed as part of the damages. See previous rule. Rule XIX (February Term, 1806.) All causes, the records in which shall be delivered to the clerk on or before the sixth day. of a when causes at trial for term, shall be considered as for trial *''''*°™- in the course of that term. Where the record shall be de- livered after the sixth day of the term, when not. either party will be entitled to a continuance. In all cases where a writ of error shall be a super- where writ of error is a sedeas to a judgment rendered m any lTZ"m':''o^^y\ft; Circuit Court of the United States, ex- '^^°°"*- cept that for the District of Columbia, at least thirty days previous to the commencement of any term of this court, it shall be the duty of the plaintiff in error to lodge a copy of the record with the clerk of this court within the first six days of the term; and if he shall fail so to do, the de- fendant in error shall be permitted after- when the defendant may wards to lodge a copy of the record with ^'" " ^^^ °^ "■" "°°"'- the clerk, and the cause shall stand for trial in like manner RULES 01? THE StrtREME COURT as if the record had come up within the first six days; or he may, on producing a certificate from the clerk, stating Or have the writ of error the cause, and that a writ of error has docketed and dismissed. ^^^^^ g^^^j ^y^^ ^jji^jj operates as a super- sedeas to the judgment, have the said writ of error dock- eted and dismissed. This rule shall apply to all judg- judgments in District of meuts rendered by the court for the Columbia excepted. District of Columbia at any time prior to a session of this court. In cases not put to issue at the August Term, it shall be When writ of error may the duty of the plaintiff in error, if errors be dismissed on failure , ,. , i ■, . i • j_i_ j. to assign errors. shall not have been assigned m the court below, to assign them in this court at the commencement of the term, or so soon thereafter as the record shall be filed with the clerk, and the cause placed on the docket; and if he shall fail so to do, and shall also fail to assign them when the cause shall be called for trial, the writ of error may be Defendant, refusing to dismisscd at his costs; and if the defend- heardeiporte. ant shall Tefusc to plead to issue, and the cause shall be called for trial, the court may proceed to hear an argument on the part of the plaintiff, and to give Plaintiff not appearing, judgment according to the right of the fhtwnWe'SrTr.or'hfvl causc; and that where there is no ap- judgment affirmed. pearancc for the plaintiff in error, the defendant may have the plaintiff called, and dismiss the writ of error; or may open the record, and pray for an affirm- Costs of course. ance. In such a case costs go of course. Montalet v. Murray, 3 Crunch, 249. See Rules 16, 30, and 43. First Clause, now Rule 9, Clause 1. Second Clause now Rule 16. Rule XX (February Term, 1808.) Where damages are given by the rule passed in February Damages; to what time Term, 1803,^ th^ Said damages shall calculated. ^^ calculated to the day of the affirm- ance of the judgment in this court. 1 Rules 17 and 18, now Rule 23, Clause 2, page 147, posf. RULES OF THE SUPREME COURT 7 Rule XXI (Feburary Term, 1807.) All parties of this court, not being residents of the United States, shall give security for the Non-residents to give costs accruing in this court, to be en- '""^'y '"""^t^- tered on the record. Upon the clerk of this court producing satisfactory ev- idence, by affidavit, or the acknowledg- cierk may have attaeh- ment of the parties or their sureties, ^ent to collect his costs. of having served a copy of the bill of costs due by them respectively, in this court, on such parties or their sureties, an attachment shall issue against such parties or sureties respectively, to compel payment of the said costs. See Rule 37. First Clause, now Rule 10, Clause 1. Second Clause, now Rule 10, Clause 8. Rule XXII (February Term, 1810.) Upon the reversal of a judgment or decree of the Circuit Court, the party in whose favor the on reversals, costs go to reversal is shall recover his costs in P"ty '"deeding, the Circuit Court. Now Rule 24, Clause 3. Rule XXIII (February Term, 1812.) Only two coimsel will be permitted to oniy two counsel to b. argue for each party, plaintiff and de- heard in a cause, fendant in a cause. Now Rule 22, Clause 2. Rule XXIV (February Term, 1812.) There having been two associate justices of the court appointed since its last session, It is Allotment of justices, ordered, that the following allotment ^*^^- be made of the chief justice and the associate justices of the said Supreme Court, among the circuits, agreeably to 8 KULES OF THE SUPREME COXJRT the act of Congress in such case made and provided; and that such allotment be entered on record, viz: For the first circuit — the Hon. Joseph Stoby. For the second circuit — the Hon. Beockholst Living- ston. For the third circuit — the Hon. Busheod Washington. For the fourth circuit — the Hon. Gabkiel Duval. For the fifth circuit — the Hon. John Marshall, C. J. For the sixth circuit — the Hon. William Johnson. For the seventh circuit — ^the Hon. Thomas Todd. Rule XXV (February Term, 1S16.) In all cases where further proof is ordered by the court, In caaes of further proof, the depositions which shall be taken shall depositions to be by , , commission. be by a commission to be issued from this court, or from any Circuit Court of the United States. See Rule 27. Now Rule 12, Clause 1. Rule XXVI (February Term, 1817.) Whenever it shall be necessary or proper, in the opinion be"fnt"£??m"'thrcSS? ^^ *^« presiding judge in any Circuit below. Court, or District Court exercising Cir- cuit Court jurisdiction, that original papers of any kind should, be mspected in the Supreme Court, upon appeal, such presiding judge may make such rule or order for the safe keeping, transporting, and return of such original papers, as to him may seem proper; and this court will receive and consider such original papers, in connection with the tran- script of the proceedings. Now Rule 8, Clause 4. Rule XXVII (February Term, 1817.) In all cases of admiralty and maritime jurisdiction, where Sto%e°takltnt^ ^^w evideuce shall be admissible in a commission. this court, the evidence by testimony of witnesses shall be taken under a commission to be issued RULES OF THE SUPREME COURT 9 from this court, or from any Circuit Court of the United States, under the direction of any judge thereof; and no such commission shall issue but upon comimssion to issue on interrogatories to be filed by the party L" ti™!o'fii«'crosslte°- applying for the commission, and notice ™satories. to the opposite party or his agent or attorney, accompanied with a copy of the interrogatories so filed, to file cross in- terrogatories within twenty days from the service of such notice: Provided, however, that nothing in this rule shall prevent any party from giving oral tes- orai testimony; when timony in open court, in cases where, by ""^ ^^ ®'^™' law, it is admissible. See Rules 8 and 25. Now Rule 12, Clause 2. Rttle XXVIII (February Term, 1821.) Whenever, pending a writ of error or appeal in this court, either party shall die, the proper repre- on death of a party, rep- , ; II, resentatives may come sentatives m the personalty or realty of involuntarily. the deceased party, according to the nature of the case, may volimtarily come in and be admitted parties to the suit, and thereupon the cause shall be heard and determined as in other cases; and if such representatives shall not vol- untarily become parties, then the other party may sug- gest the death on the record, and there- Or an order may be en- ° .I'll tered for their appear- upon, on motion, obtam an order, that ance. unless such representatives shall become parties within the first ten days of the ensuing term. Condition of order, the party moving for such order, if defendant in error, shall be entitled to have the writ of error or appeal dismissed; and if the party so moving shall be plaintiff in error, he shall be entitled to open the record, and, on hearing, have the same reversed if it be erroneous: Provided, however, that a copy of every such order shall be order to appear;^tfhere printed in some newspaper at the seat *°^«p™*«5. of government in which the laws of the United States shall be printed by authority, for three successive weeks, at least 10 KUliES OF THK SUPREkE COURT sixty days before the beginning of the term of the Supreme Court then next ensuing. Rule announced in the cause of Green v. Watkins, 6 Wheat, 260. Now Rule 15, Clause 1. Rule XXIX (February Term, 1821.) After the present term, no cause standing for argument Causes not to be heard will bc heard by the court, until the ?urSs\ed ?hl°'lurt^- partics shall have furnished the court Brief; what to contain, .^j^j^ ^ printed brief or abstract of the cause, containing the substance of all the material plead- ings, facts, and documents on which the parties rely, and the points of law and fact intended to be presented at the argument. See Rule 8. Now Rule 21, Clauses 1 and 2. Rule XXX (February Term, 1821.) In all cases where a writ of error or an appeal shall be On writ of error or ap- brought to this court from any judgment poal; when plaintiff to ° i i i . J J a file record. or decree rendered thirty days (before the term to which such writ of error or appeal shall be re- turnable), it shall be the duty of the plaintiff in error, cr appellant, as the case may be, to docket the cause, and file the record thereof with the clerk of this court within the first six days of the term: on failure to do which, the defend- when defendant may file ^nt in error, Or appellee, as the case may "°" ■ be, may docket the cause, and file a copy of the record with the clerk [and thereupon the cause shall stand for trial in like manner as if the record had been duly filed within the first six days of the term] or at his Or have the cause dock- option, he may have the cause docketed ete an misse . ^^^ dismissed, upon producing a cer- tificate from the clerk of the court wherein the judgment or decree was rendered, stating the cause, and certifying that 'such writ of error or appeal had been duly sued out and allowed. See Rule 43; also Rules 16 and 19, J^ow Rule 9, Clause 1, RULES OF THE SUPREME COURT 11 Rule XXXI (February Term, 1823.) No cause will hereafter be heard, until a complete record, containing in itself, without reference Causes not to be heard 1 1 • 1 without a complete rec- aliunde, all the papers, exhibits, depo- ord being filed, sitions, and other proceedings which are necessary to the hearing in this court, shall be filed. See Rule 11. Now Rule 8, Clause 3. I Rule XXXII (February Term, 1824.) No certiorari for diminution of the record shall be here- after awarded in any cause, unless a certiorari awarded only motion therefor shall be made in writing; "^ ""t'o"- and the facts on which the same is founded shall, if not admitted by the other party, be verified by affidavit. And all motions for such certiorari shall be Motion; when to be made at the first term of the entry of ™*'*^' the cause: otherwise the same shall not be granted, unless upon special cause shown to the court, accounting satis- factorily for delay. Now Rule 14. Rule XXXIII (February Term, 1824.) In all cases of equity and admiralty jurisdiction heard in this court, no objection shall here- in equity and admiralty after be allowed to be taken to the dlnce'Mtaiiow?d,*uniJs'3 admissibUity of any deposition, deed, «««ie i» theoo-rt beiow. grant, or other exhibit found in the record as evidence, unless objection was taken thereto in the court below, and entered of record; but the same shall otherwise be deemed to have been admitted by consent. Now Rule 13. 12 RULES OF THE SUPREME COURT Rule XXXIV (February Term, 1824.) [Rescinded.] On Saturday of each week during the sitting On Saturdays, motions of the couit, motions in cases not re- in cases, not on the . t i ,i i p ji j.j.-u docket, to be made. quired by the rules 01 the court to be put upon the docket shall be entitled to preference, if such motions shall be made before the court shall have entered upon the hearing of a cause upon the docket. See Rule 50. Rule XXXV (February Term, 1825.) After the present term, no original record shall be taken Original records not to from the Supreme Court room, or from *=' '^''^■'- the office of the clerk of this court. Now Rule 1, Clause 2. Rule XXXVI (January Term, 1830.) The court, on the second day in each term hereafter. Calendar; when called wiU Commence caUing the cases for ar- by the court. gumcut m the order m which they stand on the docket, and proceed from day to day during the term in the same order; and if the parties, or either of them, Causes ready, to be shall be ready when the case is called, ^^"^ the same will be heard; and if neither party shall be ready to proceed in the argument, the cause Pasised, to go to foot of shall go dowu to the foot of the docket, '^°°''®'" unless some good and satisfactory reason to the contrary shall be shown to the court. That ten Ten causes to be called causcs Only shall bc Considered as liable ^*''^' to be called on each day dvuing the term, including the one under argument, if the same shall not be concluded on the preceding day. No cause shall Causes not to be taken be taken Up out of the Order on the docket, up out of their order. ^r be Set dowu for any particular day, except under special and peculiar circumstances to be shown RTTUES OF THE SUlPEEME COtJilT 13 to the court. Every cause which shall have been twice called in its order, and passed, and put cauaes called twice, to at the foot of the docket, shall, if not go "ver to next term. again reached during the term it was called, be continued to the next term of the court. Now Rule 26, Clauses 1 and 2. RuLK XXXVII (January Term, 1831.) (1) In all cases the clerk shall take of the plaintiff a bond with competent security, to respond to piamtifE to give aecurity costs, in the penalty of two hundred ^°^<'°^^- dollars, or a deposit of that amoimt to be placed in bank subject to his draft. (2) In all cases the clerk shall have fifteen copies of the records printed for the court, provided Fifteen copies of record the government will admit the item in ♦"•'^p™*"*- the expenses of the court. (3) In all cases the clerk shall deliver a copy of the printed record to each party. And in cases of Eaoii party to hive a dismission (except for want of juris- ™py °f ti'"«=°«i- diction) or affirmance, one copy of the record shall be taxed against the plaintiff, which charge in- puintiff, when to pay for eludes the charge for the copy furnished ""py °f '«'«"'i- him. In case of reversal and dismission for want of jurisdic- tion, each party shall be charged with wTien each party to pay one-half the legal fees for a copy. ''*" *" ""^^ °^ *"" ""="''*• See Rule 21. First Clause, now Rule 10, Clause 1. Second and Third Clauses, now Rule 10, Clause 6. Third Clause, now Rule 10, Clause 7. Rule XXXVIII (January Term, 1832.) Hereafter, the judges of the Circuit and District Courts shall not allow aiiy bill of exceptions, BiHg of exceptions, what which shall contain the charge of the *° ''°''*""- court at large to the jury in trials at common law, iipon any general exception to the whole of such charge. But that 14 RtJLES OF THE SUPREME COtTM the party excepting be required to state distinctly the several matters of law in such charge to which he excepts; and that such matters of law and those only, be inserted in the bill of exceptions, and allowed by the court. Now Rijle 4. Rule XXXIX (Januarj' Term, 1833.) (1) During the session of the court, any gentleman of the Books from the library; bar having a causc ou the docket, and how obtained by mem- , , , , , i i • i bera of the bar. wishmg to USB any booK or books m the law library, shall be at liberty, upon application to the clerk of the court, to receive an order to take the same (not exceeding at any one time three) from the library, he being thereby responsible for the due retm-n of the same within a reasonable time, or when required by the clerk. Clerk to keep a record And it shall be the duty of the clerk to of books leot. keep, in a book for that purpose, a record of all the books so delivered, which are to be charged against the party receiving the same. And in case the same shall Penalty for not return- not be SO retumed, the party receiving ""*■ the same shall be responsible for, and forfeit and pay twice the value thereof; as alsp one dollar per day for each day's detention beyond the limited time. (2) During the session of the court, any judge thereof Jiidgea may take any d^y take from the law library any book books from ubrary. ^^ ^^^j^^ ^^ ^^^ ^^^^ proper, he being responsible for the due return thereof. Now Rule 7. Rule XL (January Term, 1833.) Whereas, it has been represented to the court, that it Printed arguments will would in many cases acconmaodate coun- be received by the court. i i . ,. , i sel, and save expense to parties, to sub- mit causes upon printed arguments. It is therefore Ordered, that in all cases brought here on appeal, writ of KTJLES OF THE SUPREME COURT 15 error, or otherwise, the court will receive printed arguments, if the counsel on either or both sides shall choose so to sub- mit the same. Now Rule 20, Clause 1. Rule XLI (Januaor Term, 1834.) Ordered, That the original opinions of the court, delivered to the reporter, be filed m the office of opinions of the court to the clerk of the court for preservation be sied with the derk. as soon as the volume of reports for the term, at which they are delivered, shall be published. See Rule 12. Now Rule 25, Clause 2. Rule XLII (January Term, 1835.) All the opinions delivered by the court since the com- mencement of the term shall be forth- opinions of the court to with delivered over to the clerk to be *>« "^'ded. recorded. And all opinions hereafter delivered by the court shall immediately, upon the delivery thereof, be in like manner delivered over to the clerk to be recorded. And it shall be the duty of the clerk to cause the same to be forthwith recorded, and to deliver the originals with a transcript of the judgment or decree of the court and delivered to the thereon to the reporter, as soon as the "P"''*''- same shall be recorded. And all the opinions of the court shall as far as practi- cable, be recorded during the term, so to be recorded during that the publication of the reports may *°'™' not be delayed thereby. Now Rule 25, Clause 1. Rule XLIII (January Term, 1835.) (1) In all cases where a writ of error, or an appeal, shall be brought to this court from any judg- On writ of error or ap- " 1 1 1 • 1 P"**'' when plaintiff to ment or decree rendered thirty days file record. before the commencement of the term, it shall be the duty 16 RULES OF THE SUPREME COUJlT of the plaintiff in error, or appellant, as the case may be, to docket the cause and file the record thereof with the clerk of this court within the first six days of the term. If he shall fail so to do, the defendant in error, or appellee, When defendant may file as the cass may be, may docket the "™"'" cause and file a copy of the record with the clerk, in which case it shall stand for argument at the Or have the cause dock- term; or at his option he may have the eted and dismissed. ^^^^^ docketed and dismissed upon pro- ducing a certificate from the clerk of the court, wherein the judgment or decree was rendered, stating the cause and certifying that such writ of error or appeal had been duly sued out and allowed. (2) No writ of error or appeal shall be docketed, or the Terms of filing record rccord of the cause filed by the plaintiff after first six days of , ^ jr term. m error, or appellant, after the first six days of the term, except upon the terms that the cause shall stand for argument during the term, or be continued at the option of the defendant in error, or appellee. But in Plaintiff cannot file the HO casc shall the plaintiff in error, or bee? 'dismUsedf'^except appellant, be entitled to docket the on leave. cause and file the record, after the same shall have been docketed and dismissed in the manner provided for in the preceding rule, unless by order of the court, or with the consent of the opposite party. (3) In all cases where the cause shall not be docketed Record not filed in the ^nd the record filed with the clerk by the cause to%°ove"?o either party until after thirty days from next term. ^j^^ Commencement of the term, the cause shall stand continued until the next term. See Rules 15, 19, and 30. Now Rule 9. ■ Rule XLIV (January Term, 1837.) When a printed argument shall be filed for one or both Piling of a printed argu- parties, the casB shall stand on the ment an appearance by '^ ' "i^uiii ouixuu uu ouc "'°"°«®'- same footmg as if there were an ap- pearance by counsel. See Rul^ 40. f^ow Rule 20, Clause 2, KULES OF THE SUPREME COURT 17 RuLis XLV (January Term, 1838.) In all cases where any suit shall be dismissed in this court, except where the dismissal shall on dismissal, costs to be for want of jurisdiction, costs shall 8° ^defendant. be allowed for the defendant in error, or appellee, as the case may be, unless otherwise agreed by the parties. In all cases of aflBrmance of any judgment or decree in this court, costs shall be allowed to the On affirmance, costs to defendant in error, or appellee, as the 8° *" d^f^^ant. case may be, unless otherwise ordered by the court. In all cases of reversals of any judgment or decree in this court, except where the reversal shall be on reversal, costs to go for want of jurisdiction, costs shall be al- '° p'^""™- ' lowed in this court for the plaintiff in error, or appellant, as the case may be, unless otherwise ordered by the court. Neither of the foregoing rules shall apply to cases where the United States are a party; but in costs not allowed for or such cases no costs shall be allowed in ^g^i-^Bt the umted states, this court for or against the United States. In all cases of the dismissal of any suit in this court, it shall be the duty of the clerk to issue a in oases of dismissal this court to send .a mandate mandate, or other proper process, in to the court beiow. the nature of procedendo, to the court below, for the pur- pose of informing such court of the proceedings in this court, so that further proceedings may be had in such court as to law and justice may appertain. When costs are allowed in this court, it shall be the duty of the clerk to insert the amoxmt thereof costs allowed, to be in- in the body of the mandate, or other ^^^ed in the mandate. process, sent to the court below, and annex to the same the bill of items taxed in detail. Now Clauses 1 to 6 of Bule 24. Rule XLVI (January Term, 1838.) All motions hereafter made to the court shall be reduced to writing, and shall contain a brief Motions to be in writing. statement of the facts and objects of the motion. Now Rule 6, Glaus* 1. 2 18 rules of the supreme court Rule XLVII (January Term, 1838.) The court will, at every future session, announce on Day of adjournment to what day it wlU adjoum, at least ten be announced. jg^yg before the time which shall be fixed upon; and the court will take up no case for argu- when eauaes will not be ment, nor reccivc any case upon printed n^r^cXe'd'orprinte'd briefs, withiu three days next before the day fixed upon for adjournment. briefs. Now Rule 27. Rule XLVIII (January Term, 1841.) The clerk shall take charge of the books of the court, Clerk to fit up a judge's together with such of the dupUcate law ^^"■^- books as Congress may direct to be transferred to the court, and arrange them in the con- ference room, which he shall have fitted up in a proper manner; and that he do not permit such books to be taken therefrom, by any one, except the judges of the court. Now Rule 7, Clause 3. Rule XLIX (January Term, 1842.) [Rescinded.] Printed arguments will not be received under the fortieth Rule of the court, unless filed within forty days from the commencement of the term, except in cases which are reached in the regular call of the docket. Rescinded, see Rule 52. Now Rule 20, Clause 1. Rule L (December Term, 1844^ The court will not hear arguments on Saturday (unless No arguments heard on for Special cause it shall Order to the Saturdays. Contrary), but will devote that day to the Other business of the court; and that on Friday in each RULES OF THE SUPREME COURT 1^ week, during the sitting of the court, motions in cases not required by the rules of the court to be what motions entitled put on the docket shall be entitled to *° P''«i«r«'"=« °° F^d^y^- preference, if such motions shall be made before the court ishall have entered on the hearing of a cause upon the docket; and the Rule No. 34, adopted at the February Term, 1824, be, and the same is hereby rescinded. Now Rule 6, Clause 6. Rule LI (December Term, 1844.) No printed or written argument will be hereafter re- ceived, unless the same shall be signed Printed arguments to be ° signed by an attorney or by an attorney or coimsellor of this court, counsellor. See present Rule 21. Rule LII (December Term, 1844.) [Rescinded.] Printed arguments, under the fortieth Rule, will be received hereafter, and at the present term, until the first Monday in February in each and every term, while the Supreme Court continues to meet on the first Monday in December; and that the forty-ninth Rule of the court, adopted at January Term, 1842, be, and the same is hereby rescinded. Rescinded, Rule S6. See present Rule 20. Rule LIII (December Term, 1848.) No counsel will be permitted to speak in the argument of any case in this court more than two counsel to speak but two hours, without the special leave of the ^°""' court granted before the argument begins. Counsel will not be heard, unless a printed abstract of the case be first filed, together with the Counsel not heard, un- ^ , , »ess a pnnted abstract points intended to be made, and the filed- authorities intended to be cited in support of them, ar- 20 RULES OP THE SUPKEME COURT ranged under the respective points; and no other book or case be referred to in the argument. If one of the parties omits to file such a statement, he „, , cannot be heard, and the case will be statement not filed, cause may be heard ex parte, heard ex parte upon the argument of the by party Sung same. ' '^ • /•, i party by whom the statement is filed. This rule to take effect on the first day of December Term, 1849. First Clause, now Rule 22, Clause 3. Second Clause, now Rule 21, Clause 1. Third Clause, now Rule 21, Clause S. Rule LIV (December Term, 1849.) [Rescinded.] When an appearance is not entered on the No appearance entered record for either the plaintiff or defend- at second term, ease will '^ be dismissed. ant, On or before the second day of the term next succeeding that on which the case is docketed, it shall be dismissed at the costs of the plaintiff. Rescinded by Rule 59. Now Rule 18. Rule LV (December Term, 1849.) When a case is called for argument at two successive Case called for argument terms, and upon the Call at the second party prepared, will be term neither party is prepared to argue ^"^^ ' it, it shall be dismissed at the costs of the plaintiff, unless sufficient cause is shown for further postponement. Now Rule 19. Rule LVI (December Term, 1S49.) Printed arguments, under the fortieth Rule shall not fiied'withirSn°days of hereafter be received, unless filed within **""• the first ten days of the term. See Rule 40 and Rule 52. See present Rule 20, Clause 1. eules of the supreme cottrt 21 Rule LVII (December Term, 1849.) Twelve printed copies of the abstract, points, and au- thorities required by the fifty-third Rule, Twelve copies of ab- must be filed with the clerk three days how diatributed. before the case is called for argument; nine of these copies for the court, one for the reporter, dne for the opposing counsel, and the remaining one to be retaiAed by the clerk. This order to take effect on the first day of May next. S«e Rules 8, 29, 37, and 53. See present Rule 21. Rule LVIII (December Term, 1850.) When a case is taken up for trial, upon the regular call of the docket, and argued orally in be- cause argued oraiiy by half of only one of the parties, no printed ?f| ?SnYed°a°rgument 7t argument will be received, unless it is t^e other party unless. filed before the oral argument begins, and the court will proceed to consider and decide the case upon the ex parte argument. This rule to take effect after the present term. See Rules 40 and S2. Now Rule 20, Clause 3. Rule LIX (December Term, 1851.) When a case is reached in the regular call of the docket, and no appearance is entered for either party, the case shall be dismissed at the cost of the plaintiff, and the fifty- fourth Rule, adopted at December Term, 1849, be, and the same is hereby rescinded. Now Rule 18. Rule LX (December Term, 1851.) Ordered, That whenever any record, transmitted to this court upon a writ of error or appeal, shall contain any docu- ment, paper, testimony, or other proceeding in a foreign language, and the record does not also contain a translation of such document, paper, testimony, or other proceeding 22 AULES OF THE SUPREME COtTRl' made under the authority of the inferior court, or admitted to be correct, the record shall not be printed, but the case shall be reported to this court by the clerk, and the court, will thereupon remand it to the inferior court in order that a translation may be there suppHed and inserted in the record. Rule LXI (December Term, 1851.) When the death of a party is suggested, and the represent- atives of the deceased do not appear by the tenth day of the second term next succeeding the suggestion, and no measures are taken by the opposite party within that time to compel their appearance, the case shall abate. This rule shall apply to cases now on the docket, as well as to cases hereafter brought. And those now on the docket and falling within the rule, shall abate on the tenth day of December Term, 1852, unless upon special cause shown the court shall direct otherwise. Rule LXII (Deeember Term, 18S1.) In cases where a writ of error is prosecuted to the Supreme Court, and the judgment of the inferior court is aflSrmed, the interest shall be calculated and levied from the date of the judgment below until the same is paid, at the same rate that similar judgments bear interest in the courts of the State where such judgment is rendered. The same rule shall be applied to decrees for the payment of money in cases in Chancery, unless otherwise ordered by this court. This rule to take effect on the first day of December Term, 1852. Rule LXIII (December Term, 1853.) First: In all cases where a writ of error or an appeal shall be brought to this court from any judgment or decree rendered thirty days before the commencement of the term. RULES OF THE SUPREME COURT 23 it shall be the duty of the plaintiff in error or appellant, as the case may be, to docket the cause, and file the record thereof with the clerk of this court within the first six days of the term; and if the writ of error or appeal shall be brought from a judgment or decree rendered less than thirty days before the commencement of the term, it shall be the duty of the plaintiff in error or appellant to docket the cause, and file the record thereof with the clerk of this court, within the first thirty days of the term; and, if the plaintiff in error or appellant shall fail to comply with this rule, the defendant in error or appellee, may have the cause docketed and dismissed upon producing a certificate from the clerk of the court wherein the judgment or decree was rendered, stating the cause and certifying that such writ of error qr appeal has been duly sued out and allowed. And in no case shall the plaintiff in error or appellant be entitled to docket the cause and file the record after the same shall have been docketed and dis- missed under the rule, unless by order of the court or the consent of the opposite party. Second: But the defendant in error or appellee may at his option docket the case and file a copy of the record with the clerk of this court; and if the case is docketed and a copy of the record filed with the clerk of this court by either party within the periods of time above limited and described by this rule the case shall stand for argument at the term. Third: In all cases where the period of thirty days is mentioned in this rule it shall be extended to sixty days in writs of error and appeals from California, Oregon, Wash- ington, New Mexico and Utah. — May 2, 1854. (See Rules 19, 30, 43). EULES OF THE SUPREME COURT OF THE UNITED STATES Revised and Corrected at the December Term, 1858 21 Howard^ xiv 1 Rule I — Clerk (1) The clerk of this court shall reside and keep the office at the seat of the National Government, cierk-s office.— cierk not and he shall not practice, either as at-*°P™°*'°^- torney or counsellor, in this court, or in any other court, while he shall continue to be clerk of this court. (2) The clerk shall not permit any original record or paper to be taken from the court room, or from the office, without an order from the court. Rule II — Attorneys, etc. (1) It shall be requisite to the admission of attorneys or counsellors to practice in this court. Qualifications of attor- that they shall have been such for three ^^^' years past in the Supreme Courts of the States to which they respectively belong, and that their private and pro- fessional character shall appear to be fair. (2) They shall respectively take and subscribe the follow- ing oath or affirmation, viz: Oath of attorneys. I, — ' , do solemnly swear [or affirm as the case may be] that I will demean myself, as an attorney and coun- sellor of this court, uprightly, and according to law; and that I will support the Constitution of the United States. 1 Tlie revision was made under the supervision of Chief Justice Taney. Osborne c. United States, 93 U. S. , 23 L. ed. 872. 25 26 RULES OF THE SUPREME COURT Rule 111— Practice This court considers the former practice of the courts of Practice of Supreme kiug's bcnch and of chauccry, in Eng- <^°""- land, as affording outlines for the practice of this court; and they will, from time to time, make such alterations therein as circumstances may render necessary. Rule IV — Bill of Exceptions The Judges of the Circuit and District Courts shall not What bill of exceptions allow any bill of exceptions which shall to contain. coutaiu the charge of the court at large to the jury in trials at common law, upon any general ex- ception to the whole of such charge. But the party ex- cepting shall be required to state distinctly the several matters of law in such charge to which he excepted and that such matters of law, and those only, shall be inserted in the bill of exceptions and allowed by the court. Rule V — Process (1) All process of this court shall be in the name of the Process in name of Presi- President of the United States. (2) When process at common law or in equity shall issue Original process served agaiust a State, the Same shall be served state°^and tttomeytgen- On the Govcmor, or chief executivc magis- ^'^*'' trate, and attorney-general of such State. (3) Process of subpoena, issuing out of this court, in any Subpcena served 60 days suit in cquity, shall be served on the before return day. defendant sixty days before the return day of the said process; and if the defendant, on such serv- ice of the subpoena, shall not appear at the return day contained therein, the complainant shall be at liberty to proceed ex parte. Rule VI — Motions (1) All motions hereafter made to the court shall be re- Motions to be in writing, duced to Writing, and shall contain a brief statement of the facts and objects of the motion. InJLEs 6f the supreme court 27 Rule VII — Law Library — Conference Room (1) During the session of the court, any gentleman of the bar having a cause on the docket Books from library had and wishing to use any book or books in o° °'der of clerk. the law library, shall be at liberty, upon application to the clerk of the court, to receive an order to take the same (not exceeding at any one time three) from the library, he being thereby responsible for the due return of the same within a reasonable time or when required by the clerk. And it shall be the duty of the clerk to keep in a book for that purpose, a record of all books so delivered, which are to be charged against the party receiving the same. And in case the same shall not be so returned, the party receiving the same shall be responsible for and forfeit twice the value thereof; as also one dollar per day for each day's detention beyond the limited time. (2) The clerk shall take charge of the books of the court, together with such of the duplicate law Clerk to have charge. books as Congress may direct to be transferred to the court, and arrange them in the conference room, which he shall have fitted up in a proper manner; and he shall not permit such books to be taken therefrom by any one, except the judges of the court. Rule VIII — Return to Writs of Error, etc. (1) The clerk of the court to which any writ of error shall be directed may make return of cierk of court below to the same by transmitting a true copy of »«°d up copy of record. the record and of all proceedings in the cause, under his hand and the seal of the court. (2) No cause will be hereafter heard until a complete record, containing in itself, without ref- caae heard only on com- erences aliunde all the papers, exhibits, p''^'® ■'^''"'^'i- depositions, and other proceedings which are necessary to the hearing in this court, shall be filed. (3) Whenever it shall be necessary or proper, in the opinion of the presiding judge in any Circuit original papers.— when Court, or District Court exercising Cir- '""e sent up. cuit Court jurisdiction, that original papers of any kind 28 RTTliES OF THfi SUPREME COURT should be inspected in the Supreme Court upon appeal, such presiding judge may make such rule or order for the safe keeping, transporting, and return of such original papers as to him may seem proper, and this court will receive and consider such original papers in connection with the tran- script of the proceedings. Rule IX — Docketing Cases (1) In all cases where a writ of error or an appeal shall be When deeree or judg- brought to this court from any judg- tefSre"«r?em, tie meut or decree rendered thirty days be- o?d''lie1ftoing'fii"x fore the commencement of the term, it fariayhlve"caseto?k: shall be the duty of the plaintiff in error etedanddiBmissed. ^j. appellant, as the case may be, to docket the cause and file the record thereof with the clerk of this court within the first six days of the term; and if the writ of error or appeal shall be brought from a judgment or decree rendered less than thirty days before the com- mencement of the term, it shall be the duty of the plaintiff in error or appellant to docket the cause and file the record thereof with the clerk of this court within the first thirty days of the term; and if the plaintiff in error or appellant shall fail to comply with this rule, the defendant in error or appellee may have the case docketed and dismissed upon producing a certificate from the clerk of the court wherein the judgment or decree was rendered, stating the cause, and certifying that such writ of error or appeal has been duly sued out and allowed. And in no case shall the plaintiff in error or appellant be entitled to docket the cause and file the record after the same shall have been docketed and dismissed under this rule, unless by order of the court. (2) But the defendant in error or appellee may, at his fhfcasel'nd'a^the^ec- ^P^^^^' ^°''^^^ ^^^ ''^use and file E copy °'^- of the record with the clerk of the court; and, if the case is docketed and a copy of the record filed with the clerk of this court by the plaintiff in error or ap- pellant within the periods of time above limited and pre- scribed by this rule, or by the defendant in error or appellee at any time thereafter, the case shall stand for argument. RULES OF THE SUPREME COURT 29 (3) In all cases where the period of thirty days is men- tioned in this rule, it shall be extended Time prolonged for oer- _ . , - tain States and Terri- to Sixty days in writs of error and ap- toriea. peals from California, Oregon, Nevada, Washington, New Mexico, and Utah. Rule X — Security for Costs — Printing Records — Attach- ment for Costs (1) In all cases the clerk shall take of the party a bond, with competent surety to secure his fees, security for clerk's costs in the penalty of two hundred dollars, t"""*^™- or a deposit of that amount, to be placed in bank subject to his draft. (2) In all cases the clerk shall have fifteen copies of the record printed for the court; and the Fifteen copies of record cost of printing shall be charged to the and''%Ssi°*tted°°"t'S Government, in the expenses of the court. Government. (3) The clerk shall furnish copies for the printer, shall supervise the printing, and shall take g,^^^ ^ j„^^^ ^^^^^ care of and distribute the printed copies °up'l^e the^rtatmgf '"' to the judges, the reporter, and the parties, from time to time as required. (4) In each case the clerk shall charge the parties the legal fees for but the one manuscript cierk to charge for one copy in that case. manuaoript copy. (5) In all cases the clerk shall deliver a copy of the printed record to each party. And in cases of „, , ^ , . , ^ •' Clerk to furnish one copy dismission, reversal, or affirmance with Feert°Jbe'ehM''eT"^'~ costs, the fees for the said manuscript copy of the record shall be taxed against the party against whom costs are given, and which charge includes the charge for the copy furnished him. (6) In cases of dismission for want of jurisdiction, each party shall be charged with one-half Charges in case of dis- * missal for want of juns- of the legal fees for a copy. diction. (7) Upon the clerk of this court producing satisfactory evidence by affidavit or the acknowledg- Attachment may issue ment of the parties or their sureties, of *?"'i='>''^ '»'■ having served a copy of the bill of fees due by them respec- 30 EtTLES OF THE SUPBBME COtiRT tively in this court, on such parties or their sureties, an attachment shall issue against such parties or sureties, respectively, to compel the payment of said fees. Rule XI — Translations Whenever any record transmitted to this court upon a Translations to be sent Writ of crror or appeal shall contain any Sfanded^forin^e'rtiolTa documeut, paper, testimony, or other "'=°"'- proceedings in a foreign language, and the record does not also contain a translation of such docu- ment, paper, testimony, or other proceeding, made under the authority of the inferior court, or admitted to be correct, the record shall not be printed; but the case shall be reported to this court by the clerk, and the court will thereupon remand it to the inferior court, in order that a translation may be there supplied and inserted in the record. Rule XII — Evidence (1) In all cases where further proof is ordered by the Further proof; when or- court, the dcpositions which may be dercd to be by commis- ,111. • ■ .1 Bion. taken shall be by a commission, to be issued from this court, or from any Circuit Court of the United States. (2) In all cases of admiralty and maritime jurisdiction, In admiralty causes, com- where new evidence shall be admissible mission will issue only on , , - interrogatories. m this court, the cvideuce by testimony of witnesses shall be taken under a commission to be issued from this court, or from any Circuit Court of the United States, under the direction of any judge thereof; and no such commission shall issue but upon interrogatories, to be filed by the party applying for the commission, and notice to the opposite party or his agent or attorney, accompanied with a copy of the interrogatories so filed, to file cross- interrogatories within twenty days from the service of such notice: Provided, however, that nothing in this rule shall prevent any party from giving oral testimony in open court in cases where by law it is admissible. RULES OF THE SUPREME COURT 31 Rule XIII — Deeds, etc., not Objected to, etc.. Admitted In all cases of equity or admiralty jurisdiction, heard in this court, no objection shall here- in equity and admiralty causes objections to evi- after be allowed to be taken to the ad- dence not entered of . . . record in court bplow, missibihty of any deposition, deed, grant, not considered. or other exhibit found in the record as evidence, unless objection was taken thereto in the court below and entered of record; but the same shall otherwise be deemed to have been admitted by consent. Rule XIV — Certiorari No certiorari for diminution of the record shall be here- after awarded in any cause unless a Motions for certiorari for motion therefor shall be made in writing, ^Sft°be'l?the&t"erm'! and the facts on which the same is i" writing, and verified. founded shall,> if not admitted by the other party, be verified by affidavit. And all motions for such certiorari shall be made at the first term of the entry of the cause, otherwise the same shall not be granted unless upon special cause shown in the court, accounting satisfactorily for the delay. Rule XV — Death of a Party (1) Whenever, pending a writ of error or appeal in this court, either party shall die, the proper , . , ' ... , ,1° =">ts abated by death, representatives in the personalty or realty 'eea' representative may . , , ,. be made party. — The of the deceased party, according to <>%■■ party, may require , revival or dismissal. the nature of the case, may voluntarily come in and be admitted parties to the suit, and thereupon the cause shall be heard and determined as in other cases; and if such representatives shall not voluntarily become parties, then the other party may suggest the death on the record, and thereupon, on motion, obtain an order that unless such representatives shall become parties within the first ten days of the ensuing term, the party moving for such order, if defendant in error, shall be entitled to have the writ of error or appeal dismissed; and if the party so moving shall be plaintiff in error, he shall be entitled to open the record, and on hearing have the same reversed. 32 RULES OF THE SUPKEME COURT if it be erroneous: Provided, however, that a copy of every such order shall be printed in some newspaper at the seat of Government in which the laws of the United States shall be printed by authority for three successive weeks, at least ■ sixty days before the beginning of the term of the Supreme Court then next ensuing. (2) When the death of a party is suggested, and the No action of either party, representatives of the deceased do not eiBe''abffe?by°teath da*"}; appear by the tenth day of the second ofneitterm. ^^j.^^ ^^^^ ensuing the suggestion, and no measures are taken by the opposite party within that time to compel their appearance, the case shall abate. Rule XVI — No Appearance of Plaintiff in Error Where there is no appearance of the plaintiff in error Case dismissed if, when when the case is Called for trial, the called, no appearance o^ , - , brief for plaintiff. defendant may have the plaintiff called, and dismiss the writ of error, or may open the record, and pray for an affirmance. Rule XVII — No Appearance of Defendant in Error Where the defendant in error fails to appear when the Argument heard on part cause shall be Called for trial, the court of plaintiff, when case ,»,„„„ jj.1. ^ called, even if defendant ^ay proceed to hear au argiunent on appear. ^^^ ^^^^ ^j ^^^ plaintiff, and to give judgment according to the right of the cause. Rule XVIII — No Appearance of Either Party When a cause is reached in the regular call of the docket. No appearance for cither and no appearance is entered for either ''"''''' party, the case shall be dismissed at the costs of the plaintiff. Rule XIX— Neither Party R^ady at Second Term When a case is called for argument at two successive Sve^&wtnX *^™S' a^d up™ ttie call at the second "'"^'^ term neither party is prepared to argue it, it shall be dismissed at the costs of the plaintiff, unless sufficient cause is shown for further postponement. RULES OF THE SUPREME COURT 33 Rule XX — Printed Arguments (1) In all cases brought here on appeal, writ of error or otherwise, the court shall receive printed Cases may be submitted on printed briefs with- arguments, without regard to the num- out argument, ber of the case on the docket, if the counsel on both sides shall choose so to submit the same. But the arguments must be filed within the first ten days of the term, and signed by attorneys or counsellors of this court. (2) When a case is reached in the regular call of the docket, and a printed argument shall be filed Filing brief equivalent to for one or both parties, the case shall ^'pvea.xa.noa. stand on the same footing as if it were an appearance by counsel. (3) When a case is taken up for trial upon the regular call of the docket, and argued orally Briefs must be filed be- , fore case orally argued m behalf of only one of the parties, no by the other party. printed argument will be received unless it is filed before the oral argument begins, and the court will proceed to consider and decide the case upon the ex parte argument. Rule XXI — Two Counsel — Two Hours — Briefs (1) Only two counsel will be permitted to argue for each party, plaintiff and defendant in a cause, ^nl^aehride""""'' '""'* (2) No counsel will be permitted to speak in an argu- ment of any case more than two hours, counsel may consume without the special leave of the court, t^° '"'"'=• granted before the argument begins. (3) Counsel will not be heard unless a printed brief or abstract of the case be filed, together Counsel heard only when with the points intended to be made, Panted brief is filed. and the authorities intended to be cited in support of them arranged under the respective points; and no other book or case be referred to in the argument. (4) The same shall be signed by an Brief to be signed by attorney or counsellor of this court. attorney. (5) If one of the parties omits to file such a statement, he cannot be heard and the case will be in default of a brief eied, heard ex parte upon the argument of <=■«« win proceed « par^e. the party by whom the statement is filed. 3 34 RULES OF THE SUPREME COURT (6) Fifteen printed copies of the abstracts, points, and Fifteen copies of briefs authorities, required by this rule, shall three^days^eTore aigu"^ be filed with the clerk three days before ^s""- the cause is called for argument; nine of these copies for the court, one for the reporter, one to be retained by the clerk, and the residue for counsel. (7) When no counsel appears for one of the parties, and When no counsel ap- no printed brief or argument is filed, Snr ml°; Zeaflor''Z Only oue counsel will be heard for the other, if no brief is filed, ^dverse party. But if a printed brief or argument is filed, the adverse party may be entitled to be heard by two counsel. Kule 21 as later amended read as follows. Rule 21 Two Counsel 1. Only two counsel shall be permitted to argue for each party, plaintiff and defendant, in a cause. Two Hours 2. Two hours on each side shall be allowed in the argument of a cause, and no more, without special leave of the court granted before the argument begins. But the time thus allowed may be apportioned among counsel on the same side as they choose: Provided always, a fair opening of the case shall be made by the party having the opening and closing argument. Briefs 3. Counsel will not be heard unless a printed brief or abstract of the case be first filed, together with the points made, and the authorities cited in support of them, arranged under the respective points. 4. The brief filed on behalf of a plaintiff in error or an appellant shall also contain a statement of the errors relied upon, and in case of an appeal an abstract of the pleadings and proofs, exhibiting clearly and succinctly the issues pre- sented. RULES OF THE SUPREME COURT 35 6. Each error shall be separately alleged and particularly specified : otherwise it will be disregarded. 6. When the error alleged is to the charge of the court, the part of the charge referred to shall be quoted totidem verbis in the specification. 7. When the error alleged is to the admission or rejection of evidence, the specification shall quote the full substance of the evidence offered, or copy the offer as stated in the bill of exceptions. Any alleged error not in accordance with these rules will be disregarded. 8. Counsel will be confined to a discussion of the errors stated, but the court may, at its discretion, notice any other errors appearing in the record. 9. The same shall be signed by an attorney or counsellor of this court. 10. If one of the parties omits to file such a statement, he cannot be heard, and the case will be heard ex parte upon the argument of the party by whom the statement is filed. 11. Twenty printed copies of the abstract, points, and authorities required by this rule shall be filed with the clerk by the plaintiff in error or appellant six days, and by the defendant in error or appellee three days, before the case is called for argument. 12. When no counsel appears for one of the parties, and no printed brief or argument is filed, only one counsel will be heard for the adverse party; but if a printed brief or argument is filed, the adverse party will be entitled to be heard by two counsel. Promulgated May 21, 1871. 11 Wall. ix. Amended Nov. 16, 1872. 14 Wall. xi. Rule XXII — Order of Argument The plaintiff or appellant in this court shall be entitled to open and conclude the case. But piamtiff to open and when there are cross-appeals, they shall °'°a?3 "piai^^iff" in° ™u?t be argued together as one case, and the teiow to open and dose. plaintiff in the court below shall be entitled to open and conclude the argument. 36 RULES OF THE SUPREME COrRf Rule XXIII — Interest, etc. (1) In cases where a writ of error is prosecuted to the On affirmance, interest Supreme Court, and the judgment of the ment below and at same inferior court is affirmed, the interest shall judgment rendered. be calculated and levied from the date of the judgment below, until the same is paid, at the same rate that similar judgments bear interest in the courts of the State where such judgment is rendered. (2) The same rule shall be applied to decrees for the Same rule to apply in payment of money in cases in chancery, chancery decrees. ^^^^^ otherwise Ordered by this court. (3) In all cases where a Tvrit of error shall delay the pro- Not exceeding ten per cccdings ou the judgment in the Circuit fOT*defa7-How 'to'lSi- Court and shall appear to have been sued °"'*'^" out merely for delay, damages shall be awarded, at the rate of ten per centum per annum on the amount of the judgment; and the damages shall be calcu- lated from the date of the judgment in the court below until the money is paid. Rule XXIV— Coste (1) In all cases where any suit shall be dismissed in this On dismissal, costs to court, cxccpt where the dismissal shall clpr^lSuss'S for want^Sf be for waut of jurisdiction, costs shall jurisdiction. j^^ allowcd for the defendant in error or appellee, unless otherwise agreed by the parties. (2) In all cases of affirmance of any judgment or decree On affirmance, costs to i^ this court, costs shall be allowed to defendant in error. ^^^ defendant in error or appellee, unless otherwise ordered by the court. (3) In all cases of reversals of any judgment or decree in On reversal, costs to this court, costs shall be allowed in this plaintiff in error. ^^^^ j^^. ^^^ plaintiff in crror or ap- pellant, as the case may be, imless otherwise ordered by the court. (4) Neither of the foregoing sections shall apply to cases Clauses two and three not where the United Statcs are a partv: to apply when United ^ •' ' States a party. but iu such cascs uo costs shall be al- lowed in this court for or against the United States. EULES OF THE SUPREME COURT 37 (5) In all eases of the dismissal of any suit in this court, it shall be the duty of the clerk to issue 0n6ismiBS3.i^ procedendo a mandate, or other proper process, in s°«« '» ™"" beiow. the nature of a procedendo, to the court below, for the pur- pose of informing such court of the proceedings in this court, so that further proceedings may be had in such court as to law and justice may appertain. (6) When costs are allowed in this court, it shall be the duty of the clerk to insert the amount Costs to be inserted in the mandate and bill of thereof m the body of the mandate, or costs annexed. other proper process, sent to the court below, and annex to the same the bill of items taxed in detail. Rule XXV — Opinions of the Court (1) All opinions delivered by the court shall immediately upon the delivery thereof be delivered Opinions to be recorded ■^ *^ 1 1 A 1 ^^ delivered to je- over to the clerk to be recorded. And porter. it shall be the duty of the clerk to cause the same to be forth- with recorded and to deliver the originals, with a transcript of the judgment or decree of the court thereon, to the re- porter as soon as the same shall be recorded. (2) And all the opinions of the court, as far as practicable, shall be recorded during the term, so opinions to be recorded that the pubhcation of the reports may . Aitken, 196 U. S. 589, 49 L. ed. 610. Except in very clear cases. United States v. Clark, 200 U. S. 601- 608, 50 L. ed. 616. That the appeal bond runs not only to the party against whom the decree was rendered but also to other parties defendant as to whom the suit was dismissed does not affect its vaUdity, or the integrity of the appeal. Hill v. Chicago, etc., R. Co., 129 U. S. 170-175, 32 L. ed. 653. Though the record contains no evidence of the jurisdiction of the trial coxu't arising out of the citizenship of the parties, the Supreme Court has jurisdiction and will review a decree rendered in an equity suit which is ancillary to a suit between the same parties on the law side of the court below, since the trial court's jurisdiction is apparent. Johnson v. Christian, 125 U. S. 642, 31 L. ed. 820. From a final decree against it complainant took an appeal to the Circuit Court of Appeals, and thereafter a second appeal to the Supreme Court, both appeals being taken within six months from the entiy of the decree. The appeal in the Circuit Court of Appeals went to a decree and not being final under sec. 6 of the Act of 1891 an appeal was allowed to the Supreme Court. That court finding that the jurisdiction of the trial court rested solely on the ground that the cause of action arose under the Constitution of the United States and therefore that the appeal lay direct to that court reversed the decree of the Circuit Court of Appeals for want of jurisdiction in that court, and proceeded to determine the cause on the direct appeal. Held, it was not the intention of the Cu'cuit Court of Appeals Act that a party should have two appeals on the merits. Union & Planters Bank v. Memphis, 189 U. S. 74, 47 L. ed. 712. EULES OF THE SUPREME COURT 53 Appeals under sec. 25b of the Bankruptcy Act of May 27, 1905, are required by paragraph 2 of General Orders in Bankruptcy 36 to be taken within 30 days after the judgment or decree. The limitation of time for appeal has the same effect as if contained in the statute; The allowance of an appeal on certificate by a, Justice of the Supreme Court cannot operate as an adjudication that it is taken in time. Comboy v. First Natl. Bank, 203 U. S. 141-144, 51 L. ed. 128. A petition for rehearing filed after the time for appeal has expired cannot reinvest a right of appeal. 76. ' Where an opinion of a State court is by law required to be filed and spread on the records and it is made part of the transcript, it is ex- aminable by the Supreme Court to determine whether a Federal ques- tion is involved in the decision. Gross v. United States Mortgage Co., 108 U. S. 477-486, 27 L. ed. 798, Oct. T., 1882. If the State court proceeds to judgment in a cause, notwithstanding an appUcation for removal, its ruling in retaining the case will be re- viewable in the Supreme Court after final judgment under sec. 709, Rev Stats. Stone v. South CaroUna, 117 U. S. 430-432, 29 L. ed. 963, Oct. T., 1885. If the Circuit Court and the State court go to judgment respectively, each judgment is open to revision in the appropriate mode. Meyer v. Delaware R. Const. Co. (Removal Cases), 100 U. 8. 457-475, 25 L. ed. 600, Oct. T., 1879. A general statement in the record that the decision of a State court is against the constitutional rights of a party, or against the Foxirteenth Amendment, or that it is without due process of law, particularly when these objections appear only in specifications of error, wiU not raise a Federal question within sec. 709, Rev. Stats. {U. S. Comp. Stats. 1901, p. 575). Clarke v. McDade, 165 U. S. 168-172, 41 L. ed. 674, Oct. T., 1896. The bare averment of a Federal question is not suflBcient. There must at least be color of ground for such averment. New Orleans v. New Orleans W. Co., 142 U. S. 79-87, 35 L. ed. 946, Oct. T., 1891. To give the Supreme Court jurisdiction under sec. 709, Rev. Stats. {V. S. Comp. Stats. 1901, p. 675), to review the judgment of a State court because of its denial of a right, etc., imder the United States Constitution, or law or treaty, it must appear on the record that such right, title, privilege, or immunity was specifically set up or claimed at the proper time and in the proper way. Leeper v. State of Texas, 139 U. S. 462-467, 35 L. ed. 227, Oct. T., 1890. 64 KULES OF THE SUPREME COURT Where no opinion was delivered by the highest court of a State, but a certificate of the chief justice states that the validity of a State law was drawn in question in that court upon the ground of its irnpair- ment of a contract relied on by the plaintiff in error, and that the deci- sion of the highest court of the State was in favor of the vahdity of such legislation, such certificate may be resorted to to show that a Fed- eral question otherwise appearing in the record to have been raised, was actually passed upon. Gulf, etc., R. Co. v. Hewes, 183 U. S. 66- 68, 46 L. ed. 88, Oct. T., 1901. Such certificate is insufficient to give jurisdiction where the record fails to show that a Federal question was properly raised. lb. 69. The opinion of the trial court which is required by sec. 2 of Rule 8 to be annexed to and transmitted with the record cannot be referred to for the purpose of ascertaining the evidence or the facts found below on which the judgment is based, but the Supreme Court may look into such opinion to ascertain whether either party in the court below claimed in proper form that a state law upon which some of the issues depended was in contravention to the Constitution of the United States. Loeb v. Trustees, etc., 179 U. S. 472-183, 45 L. ed. 287. While a right under a Federal statute may not have been set up in the complaint in a State court as where it is not an original right, but a right available in rebuttal of a defense made, where it appears by the record to have been insisted upon in argument, and it appears in the opinion required by the rules to be sent up with the record that it was considered by the court and ruled against the party relying upon it, such party may have a writ of error to the highest State court to review its judgment. San Jose L. & W. Co. v. San Jose Ranch Co., 189 U. 8. 177-180, 47 L. ed. 768. Noting the earher cases in which a different rule was announced. It is too late to raise a Federal question for the first time in a petition for a rehearing in a State court of last resort after its final judgment. If however the State court actually entertains the petition and decides the Federal question and this appears by the record the requirement of sec. 709, Rev. Stats., U. S. Comp. Sials. 1901, p. 575, is complied -with. McCorquodale v. Texas, 211 U. S. 432, 53 L. ed. 270. Where a Federal question is for the first time raised in a petition for a rehearing in the highest court of a State, if that court refuses the rehearing and dismisses the petition without passing upon the Federal question the judgment is not reviewable in the Supreme Court; but if the State court entertains the petition and decides the Federal ques- tion raised against the contention of the plaintiff in error, the decision is reviewable though first presented in the motion for rehearing. Mal- lett V. North CaroUna, 181 U. S. 589-592, 45 L. ed. 1018, Oct. T., 1900. RULES OF THE SUPREME COURT 55 A certificate of the Chief Justice of a State court of last resort, never made the order of the court, nor a part of the record, that the court in denying a rehearing did decide the Federal question raised in the petition for rehearing cannot confer jurisdiction on the Supreme Court to review the final judgment. Consolidated Turnpike Co. v. Norfolk, etc., Co., 228 U. S. 326. A recital of the presiding judge of a state court of last resort that the court orders it to be certified and made a part of the record in the case that a Federal question raised for the first time in a petition for rehearing was considered and decided adversely, though nothing else is contained in the record indicating that a Federal question was raised and decided, will be treated as incorporating into the record such proof of the existence of a Federal question as is required by sec. 709, Rev. Stats., U. S. Comp. Stats. 1901, p. 575. lb. An order of the Circuit Court remanding a cause to the State court cannot be reviewed by any direct proceeding for that purpose. Missouri Pacific R. Co. V. Fitzgerald, 160 U. S. 567-582, 40 L. ed 542, Oct. T., 1895. The power of the Supreme Court to afford a remedy by mandamus when a cause removed from a State court is improperly remanded was taken away by the Act of Mar. 3, 1887. Ex parte Pennsylvania Co., 137 U. S. 451-454, 34 L. ed. 740, Oct. T., 1890. If a case be removed to the Circuit Court and a motion to remand be denied, then after final judgment the action of the Circuit Court in refusing to remand may be reviewed in the Supreme Court on error or appeal. Graves v. Corbin, 132 U. S. 571-590, 33 L. ed. 469, Oct. T., 1889. The settled decisions of the highest State courts upon the construction of their own constitution and laws are conclusive in the Supreme Court in cases involving any question re-examinable under sec. 25 of the Judiciary Act (sec. 237, Judicial Code). Providence Savings Institu- tion V. Massachusetts, 6 Wall. 611, 18 L. ed. 912. If the highest judicial tribunal of a State adopts new views as to the proper construction of a statute of such State and reverses its former decisions,, the Supreme Court will follow the latest settled adjudication. Leffingwell v. Warren, 2 Black, 67 U. S. 599, 17 L. ed. 262. The construction given to a statute of a State by the highest judicial tribunal of such State is regarded by the courts of the United States as a part of the statute, and as binding as the text. Such construction is a rule of decision under the 34th section of the Judiciary Act of 1789, ch. 20, 1 Stat. L. 73. lb. 66 RULES OF THE SUPREME COURT Where the law governing the case is the common law, the decisions of the highest State courts do not control, except in a class of cases where by repeated decisions a rule of property as to land titles peculiar to a State have been established. Yates v. Milwaukee, 10 Wall. 497, 19 L. ed. 987. Under the Act of Mar. 3, 1891, establishing the Circuit Court of Ap- peals, cases in which the jurisdiction of the District or Circuit Courts were in issue could be brought to the Supreme Court only after final judgment. McLish v. Roff, 141 U. S. 661, 35 L. ed. 893; Railway Co. v. Roberts, 141 U. S. 690, 35 L. ed. 905. Certiorari will not be granted to review an order of the Circuit (Dis- trict) Court which is reviewable by appeal. The Supreme Court is au- thorized by sec. 716, Rev. Stats., U. S. Comp. Stats. 1901, p. 580, to issue the writ in all proper cases. The rule is that as between private persons the writ of certiorari to bring up a decree or order for review on special cause shown, will be granted or denied in the sound discretion of the court; it will be refused when there is a plain and adequate remedy by appeal or otherwise. In re Tampa Suburban R. R. Co., 168 U. S. 583- 688, 42 L. ed. 590, Oct. T., 1897. Held, certiorari to the Circuit Court of Appeals to review a judgment or decree of that court, made final by way of exclusion of any review by writ of error or appeal by sec. 6 of the Act of Mar. 3, 1891 (26 Stat. L. 826), might be issued by the Supreme Court in any case whether its advice is requested or not, but will be issued only where questions of gravity and importance are involved, or in the interest of uniformity of decision. Lau Ow Bew v. United States, 144 U. S. 47-58, 36 L. ed. 344, Oct. T., 1891. Held, The writ of certiorari might be issued to the Circuit Court of Appeals under the Act of Mar. 3, 1891, pending action by that court, although this is a power not ordinarily to be exercised. United States v. The Three Friends, 166 U. S. 1-49, 41 L. ed. 913, Oct. T., 1896. The Supreme Court may issue the writ of certiorari to review the action of the Circuit Court of Appeals denying an original application for mandamus to compel the judge of a district court to proceed in an action before it. Held, such writ might issue in exercise of the power conferred by sec. 716, Rev. Stats, (sec. 262, Judicial Code, U. S. Comp. Stats. 1901, p. 580). McClellan v. Garland, 217 U. S. 268-279, 54 L. ed. 766. Note. — See sec. 234, Judicial Code. Certiorari under sec. 240, Judicial Code, may not issue except where the decree or judgment of the Circuit Court of Appeals is final lb p 279. RULES OF THE SUPREME COURT 57 Where there is no amount in controversy there can be no appeal to the Supreme Court from the Circuit Court of Appeals. 76. 279. The power of the Supreme Court to require a case to be certified to it by the Circuit Court of Appeals under the Act of 1891 (sec. 240, Judicial Code) is not affected by the condition of the case as it exists in the Court of Appeals. It extends to every case pending in the Circuit Court of Appeals and may be exercised before or after any decision by that court, provided the case is one in which the determination of the Circuit Court of Appeals would be final. Forsyth v. Hammond, 166 U. S. 506-514, 41 L. ed. 1098. Note. — By sec. 240, Judicial Code, the writ is issued only on petition of a party to the cause. The Supreme Court had jurisdiction by sec. 14 of the Judiciary Act of 1789, sec. 716, Rev. Stats., U. S. Comp. Stats. 1901, p. 580, to issue the writ of certiorari to review judgments in contempt proceedings in the Circuit Courts, they not being reviewable on appeal or writ of error. Ex parte Chetwood, 165 U. S. 443-462, 41 L. ed. 788, Oct. T., 1896. Although prior to the Act of Mar. 3, 1891, the writ of certiorari had seldom been issued by the Supreme Court except as auxiliary process, it will be allowed whenever it is required to correct excess of jurisdic- tion and in furtherance of justice, under authority conferred by sec. 14 of the Judiciary Act (sec. 716, Rev. Stats., U. S. Comp. Stats. 1901, p. 580). lb. THE PliESENt iltTLES OF THE SUPREME COURT OF THE UNITED STATES Rule I — CUrk 1. The clerk of this court shall reside and keep the office at the seat of the National Government, cierk> office; clerk not to and he shall not practice, either as attor- p'*"*'™- ney or counsellor, in this court, or in any other court, while he shall continue to be clerk of this court. 2. The clerk shall not permit any original record or paper to be taken from the court room, or from the office, without an order from the court, except as provided by Rule 10. Promulgated December 22, 1911. 222 V. S. Decisions The occasion for the amendment made in the second clause of the rule stated in an announcement made Nov. 13, 1882. Matter of amend- ments to Rules 1 and 10, 108 U. S. 1-4, 27 L. ed. 629, Oct. T., 1882. Where the judge haa power to appoint a clerk pro tempore, such ap- pointee is clerk de facto, and his acts will be valid so far as regards a third party, though there is irregularity in the appointment. Cocke V. Halsey, 16 Pet. 71-87, 10 L. ed. 896, Jan. T., 1842. . Where the law gives the court the power of appointing its own clerk, there being no provision of law for his removal, the office is to be held at the will and discretion of the court, and the mere appointment of a successor is per se a removal of a prior incumbent. Ex parte Hennen, 13 Pet. 230-261, 10 L. ed. 154, Jan. T., 1839. Rule II — Attorneys and Counsellors 1. It shall be requisite to the admission of attorneys or 59 60 RULES OF THE SUPREME COURT , [Rule II counsellors to practice in this court, that they shall have Quaiificatio,., of attor- been such for three years past in the iisys- highest courts of the States to which they respectively belong, and that their private and profes- sional characters shall appear to be fair, 2. They shall respectively take and subscribe the following oath or affirmation, viz: I^ ^, do solemnly swear (or affirm) that I will Oath of attorneys. demean mysclf, as an attorney and coun- sellor of this court, uprightly, and according to law; and that I will support the Constitution of the United States. Clause 1 adopted Feb. 5, 1790, 2 Dallas, 399; published as general Rule 2 in 1 Cranch, xvi; 1 Wheat: xiii; 1 Pet. Vi; 1 How. xxiii; 21 How. v, and 108 U. S. 573. Clause 2 adopted Feb. 5, 1790, as general Rule 4, 2 Dallas, 399; published 1 Cranch, svi; 1 Wheat, xiii; 1 Pet. vi; 1 How. xxiii; 21 How. v; amended Mar. 10, 1866, to con- form to the Act of Congress of Jan. 24, 1865 (13 Slat. L. 424), 2 Wall. vii. Amendment annulled December Term, 1866, 4 Wall. vii. See Ex parte Garland, 4 Wall. 333, 18 L. ed. 370; republished 108 U. S. 573. The provisions contained in original Rule 3, that counsellora should not practice as attorneys, nor attorneys as counsellors, was omitted in the general revision of the rules at the December Term, 1858. Promulgated Dee. 22, 1911. 222 V. S. Decisions Where an attorney is otherwise quaUfied under the rules the fact that he has been stricken from the rolls of another court for contempt will not be cause for the Supreme Court to refuse his admission as counsellor of that court. Ex parte TUlinghast, 4 Pet. 108-110, 4 L. ed. 799, Jan. T., 1830. Attorneys and counsellors are oflScers of the court, admitted upon evidence of their possessing sufficient learning and fair private char- acter. In the Supreme Court the fact of the admission of such officers to ( the highest courts of the States to which they belong for three years ' preceding their application, is regarded as sufficient evidence of their requisite legal learning, and the statement of counsel moving their admission, sufficient evidence that their private and professional / character is fair. Ex parte Garland, 4 WaU. 333-378, 18 L. ed. 370, ! Dec. T., 1866. From the entry of the order for admission attorneys are responsible to the court for professional misconduct, and can only be deprived of their office for misconduct, declared by the judgment of the court after opportunity to be heard. This admission or exclusion is the exercise of judicial power. 76. ■379: ' • Rule II] RULES OF THE SUPREME COURT 61 The character and duties of counsel do not devolve on the personal representative of deceased counsel, so as to allow of the service of a citation upon such counsel's executors. Bacon v. Hart, 66 TJ. S. 38, 17 L. ed. 62, Dec. T., 1861. The courts can know no counsel in the cause except those who reg- ularly appear as such on the record, and will not notice law partner- ships or other private relations between members of the bar. lb. 38. The authority of an attorney to sue may be questioned upon affi- davits, or other proof. Standefer v. Dowlin, Hempst. 209; Fed. Cases, 132,849. The court has power to inquire as to the authority an attorney has to sue or defend, and before issue joined the defendant may require an attorney who brings the action to file his warrant. King of Spain V. Oliver, 2 Wash. C. C. 429; Fed. Cases, 7,814. When an attorney of a court of record appears in an action, his authority, in the absence of any proof to the contrary, wiU be presumed. A record which shows such an appearance will bind the party until it is proven that the attorney acted without authority. Hill v. Men- denhall, 21 Wall. 453-^54, 22 L. ed. 616, Oct. T., 1874. Where a client sought to dismiss his attorney regularly retained on a contingent fee, and to require payment into court of the moneys collected in the suit. Held, that a client has the right to dismiss his attorney even when employed under a contract for a stipulated part of the recovery; but where the attorney has not been guilty of any misconduct calling for the exercise of summary jurisdiction, the court will leave the parties to their remedy at law as to collections had in the suit. Texas v. White (In re Paschal), 10 Wall. 483-497, 19 L. ed. 996- 997, Dec. T., 1870. Qusere, whether in discharging his attorney employed under a stipu- lation for a definite part of the recovery, the client does not make him- self liable for the whole of the contingent fee agreed upon? lb. 497. The court will not permit counsel who represent parties interested in the cause, or the questions involved, but who are not parties to the record, to appear in a cause. Harrison v. Nixon,.9 Pet. 483-494, 9 L. ed. 205, Jan. T., 1835. The court censured counsel for attempting to influence its decision by reference to matters not in the record, contained in his printed argument in violation of a stipulation of counsel. Schley v. Pullman P. Car. Co., 120 U. S. 575-577, 30 L. ed. 790, Oct. T., 1886. In a District Court the relations between the court and the attorneys practicing in it, and their respective rights and duties, are regulated 62 RULES OF THE SUPREME COURT [Rule ll by the rules and practice of the common law, and it rests exclusively with such courts to determine who are qualified to become attorneys and for what cause they should be removed. Ex parte Secombe, 19 How. 9-13, 15 L. ed. 565, Dec. T., 1856. The moment the courts of the United States were called into. exist- ence they became possessed of the power inherent in all courts to punish for contempt. The Act of Congress of Mar. 2, 1831, specifying the cases in which summary punishment for contempt may be in- flicted, in terms applies to all United States courts. Whether it limits the authority of the Supreme Court which derives its existence from the Constitution, not decided. Ex parte Robinson, 19 WaU. 505-510, 22 L. ed. 208, Oct. T., 1873. The power of removal possessed by all courts which have the au- thority to admit attorneys to practice, should only be exercised when the continuance of the attorney in practice is incompatible with a proper respect of the court for itself, or a proper regard for the in- tegrity of the profession, and only upon notice to the offending party and an opportunity for explanation and defense. Bradley v. Fisher, 13 Wall. 335-356, 20 L. ed. 652, Dec. T., 1871. The constitutional privilege of trial by jury does not apply to prevent courts from punishing its officers for contempt or from removing them in proper cases. Ex parte Wall, 107 U. S. 265-288, 27 L. ed. 561, Oct. T., 1882. The charges in a regular complaint against an attorney should be made on oath; the information against him may be waived where the attorney himself invites the inquiry; but the testimony received should be on oath. Ex parte Burr, 9 Wheat. 529-531, 6 L. ed. 152, Feb. T., 1824. No formal allegations are required. All that is requisite, when for matters not occurring in open court, is that notice should be given to the attorney of the charges against him, and an opportunity afforded him for explanation and defense. Randall v. Brigham, 7 WaU. 523- 539, 19 L. ed. 293, Dec. T., 1868. Proceedings for disbarment are not a criminal procedure neces- sitating formal legal process. lb. Where an attorney is charged by affidavit with fraud or malpractice in his profession, the court in every instance, on motion, will order him to appear and answer, and will deal with him as the facts may appear. Ex parte Bradley, 7 Wall. 364-367, 19 L. ed. 218, Dec. T., 1868. The power of the court to punish attorneys as its officers, for mis- behavior in the practice of their profession, is a distinct head of pro- ceeding, from that of contempt of court, committed in the immediate view and presence of the court. lb. 374. Rule HI] RULES OF THE SUPREME COURT 63 In the Federal courts the power to disbar is distinct and separate from the power conferred by sec. 725, Rev. Stats. (U. • j • i , , the jury in trials at common law, upon any general exception to the whole of such charge. But the party excepting shall be required to state distinctly the several matters of law in such charge to which he excepts; and those matters of law, and those only, shall be inserted in the bill of exceptions and allowed by the court. 2. Only so much of the evidence shall be embraced in a bill of exceptions as may be necessary to present clearly the questions of law involved in the rulings to which exceptions are reserved, and such evidence as is embraced therein shall be set forth in condensed and narrative form, save as a Rule IV] RULES OF THE SUPREME COURT 65 proper understanding of the questions presented may require that parts of it be set forth otherwise. Adopted at January Term, 1852, as general Rule 38; published 6 Pel. iv; 1 How. xxxiv; made Kule 4 in the revision at the December Term, 1858; published in 21 How. vi and 108 U. S. 574. Promulgated December 22, 1911. 222 U. S. Statutory Provisions A bill of exceptions allowed in any cause shall be deemed sufficiently authenticated if signed by the judge of the court in which the cause was tried, or by the presiding judge thereof, if more than one judge sat on the trial of the cause, without any seal of court or judge being annexed thereto. Sec. 953, Beit. Stats., U. S. Comp. Stats. 1901, p. 696. Decisions A bill of exceptions is altogether unknown in chancery practice. Ex paHe Story, 12 Pet. 339-343, 9 L. ed. 1110, Jan. T., 1838. A bill of exceptions is used not to draw the whole matter into exami- nation again, but only separate and distinct matters of law, or a point of law arising out of a fact not denied. The only modes known to the common law to re-examine the facts are the granting of a new trial by the court where the issue is tried, or the award of a new trial by an appellate court, for some error of law in the proceedings. The Abbots- ford V. Johnson, 98 U. S. 440-444, 25 L. ed. 170, Oct. T., 1878. A bill of exceptions is a comprehensive method of enlarging the record by incorporating into it not only the facts of the case, but the rulings of the court in admitting and rejecting evidence, and the in- structions given to the jury. After it is signed (sealed) and filed in the case it becomes a part of the record, and the matters therein set forth can no more be disputed than those contained in any other part of the same record, and are alike subject to revision in a court of error. The rulings of the trial court in admitting or rejecting evidence can only be reviewed on bill of exceptions. Suydam v. Williamson, 20 How. 427-433, 15 L. ed. 980, Dec. T., 1857. Note. The biU is no longer required to be sealed. Sec. 953, Rev. Stats., U. S. Comp. Stats. 1901, p. 696. See Staunton i;. Embry, post, p. 72. Where the facts are disputed, and cannot be arranged by counsel for a special verdict except from evidence admitted under rulings of the court as to its admissibility, a bill of exceptions is often the only method of pre- serving the rights of a party for review; but where there is no dispute as to the facts the same purpose may be safely accomplished by a special verdict, or by an agreed statement of facts, drawn up, entered of record 5 66 BULES OF THE SUPREME COURT [Rule IV and submitted directly to the court for decision, or a general verdict may be taken subject to the opinion of the court on the facts agreed, and in both cases the questions of law arising from the facts thus spread upon the record may be re-examined on a writ of error. lb. 434-435. Opinion by Mr. Justice Clifford, going extensively into the practice. Not even the substance of the evidence given on the trial upon questions about which there is no controversy, if admitted without objection, and no point made at the trial as to the matter it was intended to prove, should be included in a bill of exceptions. A biU of exceptions should contain only so much of the evidence as may be necessary to explain the bearing of the ruUngs of the court upon matters of law, in reference to the questions in dispute between the parties to the case, and which may relate to exceptions noted at the trial. Grand Trunk R. Co. V. Ives, 144 U. S. 408, 36 L. ed. 488. The Supreme Court will not presume that the entire evidence is set forth in the biU of exceptions as that would presume a violation of the settled rules of practice as to what such bill contains. 76. At common law a writ of error lay for error of law apparent on the record, but not for an error of law not apparent on the record. If a party alleged any matter of law at the trial and was overruled by the judge he was without redress, the error not appearing in the record. To remedy this evil the statute 13 Ed. I., ch. 31 was passed which gave the bill of exceptions. Ex parte Crane, 5 Pet. 190-199, 8 L. ed. 96. Bills of exception may embrace all judgments or opinions of the court that arise in the course of a cause which are the subject of re- vision by the appelate court, and which do not otherwise appear on the record. To present the question to an appellate court the sub- ordinate tribunal must ascertain the facts upon which the judgment or opinion is founded. Railroad Co. v. Myers, 18 How. 246-251, 15 L. ed. 382, Dec. T., 1855. There is no objection to the adoption by the courts of the United States of the practice to examine arbitrators to whom a reference has been made, to ascertain facts material to the validity of the award 76. 252. Upon a reference, where the bill of exceptions set out the objections to the award, also the testimony of the referee on an examination had, which showed the facts upon which the objections were founded, the exceptions were held to be sufficient. Held, further, that the con- clusions of the referee were final and the Supreme Court could not revise his mistakes either of law or of fact. 76. 253. Only rulings and decisions in matter of law after thfe return of the award are reviewable, even where the case has been referred by a rule of court to an arbitrator. 76. 253. Rule IV] EULES OF THE SUPREME COURT 67 A bill of exceptions should state what evidence was offered of the facts upon which the opinion of the court was requested. Vasse v. Smith, 6 Cranch, 226-233, 3 L. ed. 209, Feb. T., 1810. Where in a bill of exceptions the court bases its action on its rules adopted to regulate the time and manner of filing pleas, the party assigning error should insert in his bill of exceptions so much of the rule or rules as affects the question. Packet Co. v. Sickles, 19 Wall. 611-616, 22 L. ed. 203-204, Oct. T., 1873. A bill of exceptions is conclusive upon the court, which will not presume that any material part of the evidence is omitted. Bingham V. Cabot, 3 Dallas, 19-38, 1 L. ed. 500, Feb. T., 1795. The appellate court has no power to correct any errors or omissions that may be made in the court bdow in framing exceptions. Stimp- son V. Westchester R. Co., 3 How. 653-556, 11 L. ed. 724, Jan. T., 1845. Where it appears on its face that the bill of exceptions was regularly signed, the Supreme Court cannot presume against the record. United States V. Hodge, 6 How. 279-282, 12 L. ed. 439, Jan. T., 1848. A statement of facts filed by the judge without the consent of the parties after the case is removed by the service of a writ of error, or even after the writ is issued, must be treated as a nullity in the Supreme Court. Generes v. Bonmener, 7 Wall. 564-565, 19 L. ed. 227, Dec. T., 1868. By filing with the clerk an affidavit, not incorporated in the bill of exceptions, a party cannot bring into the record evidence of what took place on the trial. Nelson v. Flint, 166 U. S. 276-279, 41 L. ed. 1003, Oct. T., 1896. Neither the rulings of the court in admitting or excluding evidence, nor the instructions given by the court to the jury are a part of the record, unless made so by a proper bill of exceptions. Storm v. United States, 94 U. S. 76-77, 24 L. ed. 42-43, Oct. T., 1876. Error apparent on the record, whether in the foundation, proceed- ings, judgment or execution of the suit, may be re-examined and cor- rected without a bill of exceptions. lb. 77. An incurable and material defect in the pleadings and verdict as they appear in the record to have existed in the coiurt below, may be considered by the com't, though not noticed in the bill of exceptions nor suggested in the argument. Garland v. Davis, 4 How. 131-143, 11 L. ed. 912, Jan. T., 1846. Where the defendant was not served with process or the proceed- ings were irregular and void, or the original process unauthorized by 68 RULES OF THE SUPREME COURT [Rule IV law, the judgment may be reversed, although there be no bill of ex- ceptions, agreed statement of facts, or special verdict. New Orleans Raiboad v. Morgan, 10 Wall. 256-261, 19 L. ed. 892, Dec. T., 1869, Where demurrer to the declaration is improperly sustained and judgment rendered, the cause may be examined upon a writ of error without a bill of exceptions. Rogers v. Burlington, 3 Wall. 661, 18 L. ed. 82, Dec. T., 1865. Where, upon a writ of error, the parties fail to raise an objection to the want of jurisdiction of the court below, the Supreme Court may, of its own motion, inquire into the question without any special ex- ception being taken. Fernandez y Perez v. Perez y Fernandez, 202 U. S. 80-100, 50 L. ed. 949, Oct. T., 1905. In case of special findings by the court, in a cause tried without a jury, no exception is necessary to raise the question whether the facts found support the judgment. Seeberger v. Schlesinger, 152 U. S. 681-586, 38 L. ed. 562, Oct. T., 1893. Prior to the Act of Mar. 3, 1865, upon an action at law in which the parties waived a jury trial and submitted the facts to the court upon evidence, the Supreme Court had no authority to revise the Circuit Court's opinion upon the admission or rejection of testimony, or upon any other question of law growing out of the evidence. Campbell v. Boyreau, 21 How. 223-226, 16 L. ed. 96, Dec. T., 1858. Where a cause is tried by the court as allowed by the Act of Mar. 3, 1865, 13 Stats. L. 501, sec. 649, Rev. Slats., U. S. Comp. Stats. 1901, p. 525, the finding of facts has the same effect as the verdict of a jury and is conclusive as to the facts so found. Whether the facts found require a judgment for the plaintiff or defendant is matter of law, and the ruling of the court on it can be reviewed" in an appellate com't. The court announces the method of reviewing *he findings under this act, as follows: (1) If the verdict be a general verdict only such rulings of the court in the progress of the trial can be reviewed as are presented by a bill of exceptions or as may ai'ise on the pleadings. (2) In such case the bill of exceptions cannot be used to bring up the whole testimony for review any more than in a trial by jury. (3) If the parties desire a review of the law involved in the case they must either get the court to find a special verdict, which raises the legal propositions, or they must present to the court their propositions of law and require the court to rule on them. (4) Objection to the admission or exclusion of evidence, or to such ruling on the propositions of law as the party may ask, must appear Rule IV] RULES OF THE SUPREME COURT 69 by bill of exceptions. Norris v. Jackson, 9 Wall. 125-128, 19 L. ed. 609, Dec. T., 1869. Where a cause is tried by the court without a jury, as provided in sees. 649, 700, Eeo. Stats. {U. S. Comp. Stats. 1901, pp. 525, 670), no bill of exceptions is required to bring upon the record the findings, whether general or special. To authorize a judgment there must be findings of fact which must appear of record. Insurance Co. v. Boon, 96 U. S. 117- 124, 24 L. ed. 396, Oct. T., 1877. The only office of a bill of exceptions is to bring upon the record rulings that without it would not appear. lb. 125. Where judgment has been rendered in a cause tried by the court, a special finding of facts may be filed at the subsequent term, nunc pro tunc, by special order of the court. /6. 124. To same effect, Mc- Gavock V. Woodlief, 20 How. 221-225, 16 L. ed. 884, Dec. T., 1857. Note. In Flanders v. Tweed, 9 Wall. 425-429, 19 L. ed. 679, the court refused to treat as part of the record a statement of facts filed by the judge three months after the rendition of the judgment. Where no exceptions appear on the record to rulings of the court in the admission or rejection of evidence', and the evidence stated in the bill of exceptions is legally sufficient to justify the conclusion reached by the court in the trial of the cause without a jury, no error can be predicated upon its conclusions of fact, which are conclusive. Booth v. Tiernan, 109 U. S. 205-206, 27 L. ed. 908, Oct. f ., 1883. Where a cause is tried by the court and certain propositions of law are announced by the judge as held by him, no specific exceptions can be taken to them, and they are important only as they affect the ques- tion whether the facts found are sufficient to support the judgment. Jennison v. Leonard, 21 Wall. 302-307, 22 L. ed. 541, Oct. T., 1874. Where the case is tried by the court under sees. 649, 700, Rev. Stats. {U. S. Comp. Stats. 1901, pp: 525, 570), the Supreme Court can only inquire whether the facts foimd in the special findings, considered in connection with the pleadings, are sufficient to sustain the judgment, and whether any error was committed upon ruhngs on matters of law properly preserved by biU of exceptions. A stipulation of counsel as to evidence bearing on the findings appearing in the record will not be noticed. Ft. Worth City Co. v. Smith Bridge Co., 161 U. S. 249-300, 38 L. ed. 169, Oct. T., 1893. As the court has power to try and determine a cause upon an oral waiver of a jury, where the record fails to show that there was any stipulation in writing for such waiver, the record and bill of exceptions reciting only that there was a waiver of a jury, the Supreme Court has 70 EULES OJ* THE StTPREME COURT [Rule IV no authority to consider exceptions taken at the trial. Bond v. Dustin, 112 U. S. 604-607, 28 L. ed. 836, Oct. T., 1884. The sufficiency of the pleadings to support the judgment is review- able, though the record fails to show a written stipulation to waive a jury. lb. 608. That a stipulation in writing to waive a jury was made, as a condi-i tion upon which a review is allowed by the Act of Mar. 3, 1865, must appear in the findings, or in the bill of exceptions, or in the record of the judgment entry. lb. 608. If a jury is waived, and the court chooses to find generally for one side or the other, the losing side has no redress except for the admis- sion or rejection of evidence. Dirst v. Morris, 14 Wall. 484r-490, 20 L. ed. 723, Dec. T., 1871. Where a jury is waived as provided in the Act of Mar. 3, 1865, the finding of the court may be either general or special; where general the- parties are concluded by the determination of the court except in cases where exceptions are taken to the ruHngs of the court in the progress of the trial, when such rulings may be reviewed in the Supreme Court; but the findings of the court, if general, cannot be reviewed by bill of exceptions or in any other manner. Insurance Co. v. Folsom, 18 Wall. 237-248, 21 L. ed. 833, Oct. T., 1873. Facts found by the trial court where a jury is waived under the Act of 1865 are equivalent to a special verdict, and the Supreme Court will not examine the evidence on which the finding is founded. The court cannot be required to make a special finding. The biE of exceptions brings up nothing for revision except what it would have done had there been a jury trial. 76. 249. If the general finding is accompanied with an authorized specis-l statement of the facts there may be a review as to the sufficiency of those facts to support the judgment. lb. 254. Under the statutes providing for waiver of a trial by jury, sees. 649- 700, Rev. Stats. (U. S. Comp. Stats., 1901, pp. 625, 700), when there are special findings, they must be findmgs of the ultimate facts, and not the evidence from which such facts might be, but are not, found. Wilson v. Merchants' L. & T. Co., 183 U. S. 121-126, 46 L. ed. 116, Oct. T., 1901. If an agreed statement contain certain ultimate facts, and also other facts of an evidential character only, from which a material ultimate fact may be inferred, but which is not agreed upon or found by the court, the appellate court cannot find such ultimate fact and cannot decide the case on the ultimate facts agreed upon without reference to such other facts, but is Hmited to the general finding by the trial court lb. 127. Such an agreed statement of facts cannot be regarded as a sub- stantial compliance with the statute. 76. 129. Rule IV] RULES OF THE SUPREME COURT 71 Where there was no general verdict of a jury and no special verdict in any form known to the common law, and no waiver in writing of a jury trial, and no such finding of the court upon the facts as is pro- vided for by sec. 649, Rev. Stats. (U. S. Comp. Stats. 1901, p. 525), the Supreme Court reviewed the case on a writ of error, where the parties filed a written stipulation agreeing upon the facts. Geekie v. Kirby Carpenter Co., 106 U. S. 379-383, 27 L. ed. 159, Oct. T., 1882. ' Where the special findings embrace all the issues raised by the plead- ings and the conclusions of law made by the Circuit Court are erroneous, the Supreme Court will reverse the judgment, and direct such judg- ment to be entered as the special findings require, instead of awarding a new trial. Fort Scott v. Hickman, 112 U. S. 150-165, 28 L. ed. 640, Oct. T., 1884. It is improper to prepare the bill of exceptions so as to attempt to secure a re-examination of the facts in the appellate court. Duncan V. The Francis Wright, 105 U. S. 381-389, 26 L. ed. 1102. The manner and time of settling a bill of exceptions are regulated by the Acts of Congress or where the statutes are silent by the rules of the Federal courts. When there are no acts of Congress or rules of the Federal courts, then the manner and time of proceedings, as the foundation for removal of a cause upon writ of error from one Federal" court to a higher Federal court must conform to the rules of the common law or to the ancient English statutes. Section 914, Rev. Slats. (U. S. Comp. Stats. 1901, p. 684), regulating the practice in the Federal courts does not require conformity to the practice in the State com-ts as to the time and manner of settling a bill of exceptions. Ex parte Chateaugay Ore, etc., Co., 128 U. S. 544-555, 32 L. ed. 512. Though a State statute provides that when charges have been taken down by a reporter, the questions presented in such charges need not be excepted to or embodied in a bill of exceptions, such State statutes do not control proceedings in the Federal courts, sitting in that State, and it is necessary for the bill of exceptions to show the proceedings had. St. Clair v. United States, 154 U. S. 134-153, 38 L. ed. 943, Oct. T., 1893. A court of errors cannot consider a bill of exceptions that has not been signed by the judge who tried the ca,use, and such failure or omis- sion cannot be supplied by a stipulation of counsel, or the parties, of the correctness of the biU. The only remedy, if the judge who tried the case is dead or incapacitated, is for his successor to grant a. new trial. Malony v. Adsid, 175 U. S. 281-286, 44 L. ed. 166, Oct. T., 1899. 72 RULES OF THE SUPREME COURT [Rule IV It is not usual or necessary to reduce bills of exception to form and to obtain the signatm-e of the judge during the progress of the trial. This may be done afterwards during the term. Exceptions need only be noted at the time made and may be reduced to form within a rea^ sonable time after the trial is over. Such time depends on the nature of the bill, and if applied for within the term is left to the discretion of the trial judge. Hunnicutt v. Peyton, 102 U. S. 333-354, 26 L. ed. 116, Oct. T., 1880. Exceptions are not waived by suing out a writ of error before ob- taining the signature thereto of the trial judge. lb. 354. Where a rule of court required presentation of the biU for signature, within five daj^s. Held, the judge before whom the exceptions were noted might depart from the rule in order to effectuate justice. HeM, further, that where the biH was signed within a time allowed during the term, it was not necessary it should appear on its face to be signed and filed nunc pro tunc, as of the date of the verdict. /6. 357. That a bill of exceptions prepared after trial should appear on its face as if actually reduced to form and signed din-ing the term as de- elated, by Mr. Justice Duval in Walton v. United States, 9 Wheal. 651-658, disapproved; holding it unnecessary that the bill should be signed nunc pro tunc or antedated. Ih. 358. Exceptions must show that they were taken and reserved by the party at the trial, and where the biU of exceptions was presented to the judge during the term, and the facts warrant an implied consent to further time beyond the term for settling the exceptions, the bill may be signed after adjournment. United States v. Breitling, 20 How. 252-254, 15 L. ed. 902, Dec. T., 1857. - Though a rule of court provides that no bill of exceptions can be signed after the adjounmient of the court during which the exception is taken, unless by the consent of counsel in writing. Held, it is always in the power of the court to suspend its own rules, or to except a par- ticular case from their operation, whenever the purposes of justice require it. Ih. 254. Anciently a bill of exceptions was required to be sealed, but it is sufficient in the United States courts if it be signed by the judge, sec. 953, Rev. Stats. {U. S. Comp. Stats. 1901, p. 696). Staunton v. Embry, 93 U. S. 548-555, 23 L. ed. 985, Oct. T., 1875. It is always allowable if an exception is seasonably taken and re- served, that it may afterward be put in form and filed in the case within the time settled by the order of the judge who presided at the trial (made during the term). 76. 555. Note. The case last cited does not state that an order extending the time was made, its language being, "It appears by the record that the exceptions were taken at the trial of the cause and that the bill of exceptions was signed by the judge at the request of the defendant Rule IV] RULES OF THE SUPREME COURT 73 and filed ia the case nunc pro tunc, which brings the case within the settled practice of the courts of error even if governed by the strictest rules of common law." The decision in Pomeroy's Lessee v. Bank, 1 Wall. 592, and other cases determined prior to 1872, holding that a bill of exceptions must be sealed, are no longer apphcable. The true rule, to which, except under very extraordinary circum- stances, there should be no exceptions without an express order of the court during the term or the consent of the parties, requires ex- ceptions taken at the trial to be signed and filed not later than the term at which the judgment was rendered. Muller v. Ehlers, 91 U. S. 249-251, 23 L. ed. 320, Oct. T., 1875, An order made at the ensuing term after judgment, directing that a biU of exceptions be filed nunc pro tunc as of the date of the judgment, when no extension of time was granted during the term, and no con- sent given for the signing of the bill thereafter, is a nullity; and though the bill of exceptions is returned as a part of the record, it will not be considered by the Supreme Court. lb. 250. After the term has expired all authority of the court below to amend a biU of exceptions allowed and filed is at an end, unless the court's control over the case has been reserved by order or rule. Any fault or omission in framing or tendering a biE of exceptions due to the act of the party and not of the court, cannot be amended at a subsequent term, as a misprision of the court in recording in- accurately or omitting to record an order of the court might be. Bank V. Eldred, 143 U. S. 293-298, 36 L. ed. 163, Oct. T., 1891. Note. In this case subsequent to the term the cause was deter- mined, the trial judge amended the bill of exceptions to supply omis- sions therein showing that rulings were excepted to, and again signed the bill nunc pro tunc as within the time originally signed. If the party does not at once file his bill of exceptions he should move the judge to assign a reasonable time within which he may file it, unless the judge has made an express order in term, allowing a period after the term to prepare the bill; if signed after the term, it must be under- stood to be a matter of consent between the parties. Bradstreet v. Thomas, 4 Pet. 102-107, 7 L. ed. 798, Jan. T., 1830. The Supreme Court will not order a particular bill of exceptions to be signed by a judge where he declares the same not conformable to the truth. 76.102. The record must show the exception as taken at that stage of the trial when its cause arose. The time and manner of placing the evi- dence of the exception formally on the record are matters belonging 74 KULES OF THE SUPREME COURT- [Rule IV to the practice of the court at which the trial is held. It is for each court to secure by its rules that prompt attention to the subject nec- essary to the preservation of the actual occurrences on which the validity of the exception depends, and so to administer those rules that no artificial or imperfect cases shall be presented in the appel- late court for adjudication. Turner v. Yates, 16 How. 14r-29, 14 L. ed. 831, Dec. T., 1853. Where the language of the bill of exceptions implies that the excep- tions were taken only at the time of tendering the bill to be signed, which was not until the next term after the trial, the errors assigned cannot be considered. The bill must show that the exception was seasonably taken and duly allowed. United States v. Carey, 110 U. S. 51-52, 28 L. ed. 67, Oct. T., 1883. It must appear from the transcript not only that instructions were given or refused at the trial, but that the party who complains of them excepted to them while the jury were at the bar. If the exceptions "are made and noted after the trial, the charge of the court or its refusal to charge as requested, form no part of the record, and cannot be car- ried before the appellate court by writ of error. Phelps v. Mayer, 15 How. 160-161, 14 L. ed. 644, Dec. T., 1853. It need not be drawn up in form and signed before the jury retire, but it must be taken in open court and must appear by the certificate of the judge who authenticates it to have been so taken. lb. 161. The above rule is adhered to for the purpose of justice, because the court has an opportunity upon objection to reconsider or explain its opinion, and if the objection is to evidence the opposing party may remove it by further testimony if apprised in time. 76. 161. Where the bill of exceptions shows that the exceptions were taken and allowed at the trial and that the bill was prepared and presented to the judge for signature, within a time stipulated between the parties, and it was thereafter stipulated that the judge might delay his signature to the bill until a named time, but the bill was not allowed and signed until a date subsequent to that named in the second stipulation, and after the writ of error was made returnable, and during a subsequent term of the trial court, Held, that the appellant should not be preju- diced by the delay of the judge and a motion to strike out the bill of exceptions was denied. Davis v. Patrick, 122 U. S. 138-143, 30 L. ed. 1092, Oct. T., 1886. Where the court, during the term, makes an express order, giving time to prepare and file a bill of exceptions, and the bill is presented to the judge within that time, he may enter a further order continuing the cause for the purpose of settling and signing the bill of exceptions, Rule IV] RULES OF THE SUPREME COURT 75 and if the bill i3 finally signed within the time named in the second order, it will be held to have been duly signed, and objections that it was signed after the expiration of the term, will not be allowed, although the signing was against the protest of the objecting party. Ward v. Cochran, 150 U. S. 597-603, 37 L. ed. 1196, Oct. T., 1893. The bill of exceptions may be signed after the expiration of the term at which the judgment was rendered, if done by consent of the parties given during the term. Waldron v. Waldron, 156 U. S. 361-378, 39 L. ed. 457, Oct. T., 1894. Where there is nothing in the record from which it can be inferred that suit was pending at the date named in the bill of exceptions as that on which the exceptions were taken, but the certificate to the bill shows that it was regularly allowed upon the trial, the certificate is conclusive upon the court and the exceptions must be regarded as duly taken, though the date stated in the bill is the eighth of April, 1848, and the record shows that the trial took place on the seventh and eighth of May, 1849, the date, 1848, will be considered as a clerical mistake. United States v. Wilkinson, 12 How. 246-252-253, 13 L. ed. 976, Dec. T., 1851. Where the statement of the exception taken, as made in the bill, itself shows the error of the trial com-t, if there is any fact which makes against such error, it ought to be shown by the opposite party, and set forth in the exception. lb. 253. Where it clearly appears that the rulings of the court were excepted to in proper time and not afterward, the Supreme Court will not allow the right of a review to be defeated because the judge was careless in the use of words, or because the bill of exceptions is unskillfully drawn. Simpson v. Dall, 3 Wall. 460-473, 18 L. ed. 266, Dec. T., 1865. By proceeding to introduce testimony in his own behalf, defendant waives his exception to a refusal to direct a verdict in his favor at the close of plaintiff's evidence. The motion may be renewed upon the conclusion of the entire testimony. Wilson v. Haley Live Stock Co., 153 U. S. 39-43, 38 L. ed. 630, Oct. T., 1893. The filing of a plea to the merits after demurrer is overruled operates as a waiver of the demurrer, and the demurrer thus abandoned ceases to be a part of the record. Campbell v. Wilcox, 10 Wall. 421, 19 L. ed. 973, Dec. T., 1870. Pleading oyer to a declaration adjudged good on demurrer is a waiver of the demurrer. Young v. Martin, 8 Wall. 354^358, 19 L. ed. 419, Dec. T., 1868. 76 RULES OF THE SUPREME COURT [Rule IV Where a party, upon a trial, excepts to a ruling of the court, but does not stand upon such exception, and acquiesces in the ruling and elects to proceed with the trial, he thereby waives his exception. Camp- beU V. Haverhill, 155 U. S. 610-612, 39 L. ed. 281, Oct. T., 1894. Where in a cause submitted to 'the coiu-t without a jury the de- fendant moved for judgment in his behalf at the close of plaintiff's case, which motion was denied and duly excepted to and the defendant thereafter proceeded to offer evidence in his own behalf, it was held that the overruling of the motion could not be assigned for error. Runkle V. Burnham, 153 U. S. 216-222, 38 L. ed. 696, Oct. T., 1893. By not resting on the motion for a nonsuit, and thereafter offering his own evidence, the defendant waived his motion. lb. 222. The language used by the judge in his charge to the jury will not supply the place of a transcript of the testimony certified by a bill of exceptions. Worthington v. Mason, 101 U. S. 149-152, 25 L. ed. 850, Oct. T., 1879. The Supreme Court can only review error appearing by some ruling on the pleadings or on the state of facts presented to that court. Those facts, apart from the pleadings, can there only be shown by a special verdict, an agreed statement duly signed and submitted to the court below, or by bill of exceptions. When by bill of exceptions complaint is made of the instructions given or refused, it must be accompanied by a distinct statement of testimony given or offered which raised the question to which the instructions apply. 76. 152. Error cannot be assigned because the trial judge omitted to instruct the jury on a particular aspect of the case however material, unless his attention was called to it with the request to instruct upon it. Insurance Co. v. Snyder, 93 U. S. 393-394, 23 L. ed. 888, Oct. T., 1876. Where objection to a question is made and counsel states that he excepts to the opinion of the court, but no exception is actually prayed by the party or signed by the judge, the Supreme Court cannot consider the exception as actually taken, but must suppose it abandoned. Scott V. Lloyd, 9 Pet. 418-442, 9 L. ed. 187, Jan. T., 1835. Where the charge of the judge is of a character to mislead the jury the error is one of law and may be corrected in an appellate court; but in every such case the part of the charge to which an exception is ad- dressed ought to be distinctly pointed out. Unless that is done the exception cannot be sustSiined as a ground for reversing the judgment, as that can only be done for error of law. Railroad Co. v. Vamell, 98 U. S. 479-485, 25 L. ed. 235, Oct. T., 1878. The Supreme Court has power to issue a mandamus to a Circuit Court of the United States, requiring the judge before whom the ex- Rule IV] RULES O^ THE StTPREME COTjRT 7^7 ceptions were noted, to sign a bill of exceptions. Crane v. Crane, 5 Pet. 190-192, 8 L. ed. 93, Jan. T., 1831. Any matter of law advanced by the judge in his charge to the jury, not contained in the points reserved at the trial, may be made matter of exception, but exceptions must not be taken in such form as to bring the whole charge before the appellate court, where the charge sums up all the evidence. lb. 198-199, 8 L. ed. 96. The truth of the matter contained may not be disputed after the bill is signed. 7b. 199. The practice of spreading the whole charge of the court upon the record discountenanced, and reference made to this rule adopted to suppress it. Magniac v. Thompson, 7 Pet. 348-390, 8 L. ed. 724, Jan. T., 1833. The court may dismiss the writ of error where the exceptions are to the whole charge of the court and not to the points ruled by the court. Stimpson v. Westchester R. Co., 4 How. 380-401, 11 L. ed. 1030. The court protests against the obscuring of the merits of the case by making the bill of exceptions a sort of abstract or index of the history of the cause. Evans v. Patterson, 4 Wall. 224r-229, 18 L. ed. 394, Dec. T., 1866. What a bill of exceptions should contain stated. The practice of sending up bills filled with irrelevant and unnecessary matter con- demned. If counsel refuse to comply with the rule the judges of the courts below are advised to withhold their signatures untiFthe bills are prepared freed from matter not essential to explain and point the ex- ceptions. Lincohi v. Claflin, 7 Wall. 132, 19 L. ed. 108. The court again condemns the practice of embracing in a bill of exceptions the testimony other than that necessary to present the legal questions raised and noted, and urges compliance with Rule 4. Johnston v. Jones, 66 U. S. 209-220, 17 L. ed. 120, Dec. T., 1861. The minutes of the clerk are not sufficient evidence of proceedings in the trial court. To be of any avail, exceptions must be drawn up so as to present distinctly the rulings of the court upon the points raised, and must be signed by the presiding judge. Unless so signed they do not constitute any part of the record which can be considered by an appellate court. No bill is necessary where the error alleged is apparent on the record. Young v. Martin, 8 Wall. 354-356, 19 L. ed. 419, Dec. T., 1868. A statement of facts signed by counsel cannot be noticed upon error. Bethel v. Mathews, 13 Wall. 1-3, 20 L. ed. 556, Dec. T., 1871. 78 RULES OF THE SUPREME COURT [Rule IV The plaintiff in error cannot take advantage upon exceptions of rulings in his own favor, even if erroneous. lb. Though the transcript states that at the trial objection to the testi- mony of witnesses was made and defendant excepted and that the judge gave certain instructions to the jury to which "defendant ex- cepted and assigned the same for error," the clerk's statement that the facts occurred does not enable them to be the subject of review; unless the exception is reduced to writing and signed by the judge it is not a bill of exceptions. Bank v. Lanier, 95 U. S. 171-173, 24 L. ed. 384, Oct. T., 1877. If either party in an action at law is desirous of preserving the evi- dence either at the trial, or on a preUminary motion, in order to raise a question of law upon it, he must ask to have it incorporated in a bill of exceptions. This is the only way in which it can be done unless the parties choose to make an agreed statement of facts. Recitals of the clerk contained in the transcript form no part of the record and cannot be considered, where not authenticated by the signature of the judge, through the mode of a bill of exceptions. Knapp v. Railroad Co., 20Wall. 117-121, 22 L. ed. 330, Oct. T., 1873. Though there appears on the transcript what purports to be a copy of the court's charge, marked by the clerk of the trial court, filed in his office among the papers in the case, Held, that instructions do not in this way become part of the record. They must be incorporated in a bill of exceptions and thus authenticated by the signature of the judge. Clune v. United States, 159 U. S. 690-593, 40 L. ed. 271, Oct. T., 1895. The record includes the pleadings, the process, the verdict, the judgment, and such other matters as by some statutory or recognized method have been made part of it. Ih. 593. The duty of the appellate court is limited to determining the validity of exceptions duly framed and presented, ^^'llere the bill does not contain any part of a charge given or any exception to it, but under- takes to supply this want by referring to exhibits annexed containing all the evidence introduced at the trial, the whole charge to the jury, and the stenographer's notes of proceedings the court will affirm the judgment without looking into such a record. Hanna v. Maas, 122 U. S. 24-27, 30 L. ed. 1118, Oct. T., 1886. It being, necessary to entitle the excepting party to avail himself of an omission to instruct the jury, that a request for instructions be made, such request must affirmatively appear in the bill of exceptions. Texas & P. Ry. Co. «. Volk, 151 U. S. 73-78, 38 L. ed. 80, Oct. T., 1893. Rule IV] KULES OF THE SUPKEME COURT 79 To constitute a part of the bill of exceptions, a paper not incor- porated in the body of the bill must be annexed to it, or so identified by mention in the bill, as to leave no doubt when found in the record that it is the one referred to in the bill of exceptions, or else it will be disregarded. Leftwitch v. Lecanu, 4 Wall. 187-189, 18 L. ed. 388, Dec. T., 1866. The court has no power to look into a bill of exceptions beyond the errors noted by the exceptions taken at the time to the rulings of law by the judge, and to the admission or rejection of evidence. Only so much of the evidence given on the trial as is necessary to present the legal questions thus raised and noted may be carried into the bill of exceptions; aU beyond serves only to encumber and confuse the record and perplex and embarrass both court and counsel. Zeller's Lessee V. Eckert, 4 How. 289-298, 11 L. ed. 983, Jan. T., 1846. On a writ of error the appellate court has no concern of questions of fact or whether the findings of the jury accord with the weight of evi- dence. For errors of this description a motion for a new trial is the proper remedy. 7b. 298. A motion for a new trial in the Federal courts is a motion addressed to the discretion of the court, whose decision in granting or refusing the same is not a proper subject of a biU of exceptions. Pomeroy's Lessee v. Bank of Indiana, 1 Wall. 692-598, 17 L. ed. 640, Dec. T., 1863, citing numerous cases. The minutes of the court or the judge's notes are not a substitute for a bill of exceptions; such entries can only be of benefit on appeal where the party excepting seasonably avails himself of the right to reduce his exceptions to writing and have a bill of exceptions signed by the judge presiding at the trial. The minute entries are only evi- dence of a right of the party seasonably to demand a bill of exceptions. lb. 598. Many exceptions may be inserted in one bill of exceptions. lb. 600. An assignment of errors cannot be availed of to import questions into a cause for the purpose of establishing that a Federal question was decided, where the record does not show that any such question was raised and passed on in the court below. Missouri Pacific R. Co. V. Fitzgerald, 160 U. S. 556-575, 40 L. ed. 540, Oct. T., 1895. An exception taken to the Supreme Court of a State that the charge of the court, the verdict of the jury and the judgment below are each against, and in conflict with, the Constitution and laws of the United States, is too general to authorize the Supreme Court to reverse the judgment of the highest State court under sec. 25 of the Act of 1789. The particular right claimed under the Constitution or Act of Congress, and under what clause of the Constitution or Act of Congress the same 80 RULES OF THE SUPREME COURT [Rule IV was claimed, should be set out on the record. MaxweU v. Newbold. 18 Hmo. 511-517, 15 L. ed. 609, Dec. T., 1855. Where a right is set up under an Act of Congress in a State court any matter of law found in the record decided by the highest court of the State can be re-examined by the Supreme Court. The conclusiveness of the facts found extends to the finding by a State court to whom they have been submitted by waiving a jury, or to a referee where it is so held by State laws. Bridge Co. v. Kansas Pacific Ry. Co., 92 U. S. 315-317, 23 L. ed. 516, Oct. T., 1875. Where a series of instructions to the jxiry are asked in one prayer and refused as a whole, and there is a general exception to such re- fusal, if any proposition in the series ought to have been rejected, the refusal of the prayer is not error, although other propositions in the series, if asked separately, ought to have been given. Harvey v. Tyler, 2 WaU. 328-339, 17 L. ed. 872, Dec. T., 1864. The principle of justice and fairness to the court which makes the rulings complained of require that the attention of that court be specif- ically called to the precise point to which exception is taken, that i); may have an opportunity to reconsider the matter and remove the ground of objection. 76. 339. It is the duty of the party taking objection to the admission of evi- dence to point out the part excepted to when the evidence consists of a number of particulars, so that the attention of the court may be drawn to a particular objection. Moore v. Bank of the Metropolis, 13 Pet. 302-310, 10 L. ed. 176, Jan. T., 1839. In examining the admissibility of evidence the court will confine the party to the specific objection taken to it. Hinde's Lessee v. Long- wood, 11 Wheat. 199-209, 6 L. ed. 456, Feb. T., 1826. Upon a general motion to exclude the whole testimony, the court is not bound to do more than to respond to the motion in the terms in which it is made. Where the evidence taken as a whole is not in- competent it is not error to refuse to exclude such evidence where it does not appear from the bill of exceptions that any particular part of the evidence was objected to and the court moved to exclude it. ElUott V. Pearaall, 1 Pet. 328-338, 7 L. ed. 169, Jan. T., 1828. A general objection to the reception of evidence without stating the grounds of objection should not be tolerated. It cannot be expected that upon the offer of testimony, oral or written, at the mere suggestion of an exception, obviously not to the competency of the evidence and not pointing out some definite or specific defect in its character, the court shall itself ascertain its defects which the objector cannot or will Rule IV] RULES OF THE SUPREME COURT 81 not point out. Such objections are too vague to be considered by the appellate court. Candem v. Doremus, 3 How. 515-530, 11 L. ed. 712, Jan. T., 1845. Where the bill of exceptions does not contain the answer made by a witness to a question put and allowed over objection, error cannot be assigned. Nailor v. WilUams, 8 Wall. 107-109, 19 L. ed. 349, Dec. T., 1868. Where the exception is to a charge that if the testimony of a certain witness is believed, a certain fact is estabhshed, the testimony should be set out in the bill of exceptions, or so referred to as to make it part of the record; otherwise the instruction will be presumed to be justified. RusseU V. Ely, 67 U. S. 575-580, 17 L. ed. 260, Dec. T., 1860. Depositions printed in the record but not incorporated in the bill of exceptions, nor referred to in it so as to make them a part of the record in the case, will not be considered. 76. 581. Where no objection is taken to the competency or sufficiency of the evidence it is improper to include it in a bill of exceptions. Pennock V. Dialogue, 2 Pet. 1-15, 7 L. ed. 332, Jan. T., 1829. If the exception taken is to the refusal to permit an interrogatory, the record must show that the answer related to a material matter involved, or if no answer was given the record must show the offer of the party to prove by the witness the particular facts to which the interrogatory related, and that such facts are material. Railroad Co. V. Smith, 21 WaU. 255-261, 22 L. ed. 514, Oct. T., 1874. The party who complains of the rejection of evidence must show that he was injured by the rejection. His bill of exceptions must make it appear that if it had been admitted, it might have led the jury to a different verdict, as required by Rule 21 (Subdivision 2, Clause 2). Packet Co. v. Clough, 20 Wall. 528-642, 22 L. ed. 409, Oct. T., 1874. The specification should quote the fuU substance of the evidence offered, or a copy of the offer as stated in the bill of exceptions. lb. 543. Where the facts which a competent witness, improperly held in- competent, offered to prove, are not stated in the bill of exceptions, the Supreme Court cannot disregard an exception to the exclusion of the witness upon the idea that the testimony could not have been material, or could not have changed the result of the verdict. Vance V. Campbell, 1 Black, 427-431, 17 L. ed. 172, Dec. T., 1861. If a series of propositions be embraced in instructions, and the in- structions are excepted to in amass, if any one of the propositions be 6 82 RULES or THE SUPREME COURT [Rule IV correct, the exception must be overruled. Johnston v. Jones, 66 U. S. 20&-221, 17 L. ed. 120, Dec. T., 1861. If the entire charge of the court is excepted to in gross and any portion thus excepted to is sound, the exception caimot be sustained. An exception to such portions of a charge as are variant from requests made by a party not pointing out the variances, carmot be sustained. Beaver v. Taylor, 93 U. S. 46-54, 23 L. ed. 790, Oct. T., 1876. The court's uniform holding, that a general exception to several propositions embodied in instructions to juries must be overrulsd if any one of the propositions is correct, apphed to cases determined by a referee. A general exception to the action of the trial court in overruling specific objections to the referee's report will not be sus- tained if any one proposition contained in the report of the referee is good. The exception should direct the attention of the court to the specific proposition or propositions objected to, and separate it or them from the rest. The sufficiency of the evidence to support the find- ings of the referee cannot be re-examined in the Supreme Court. Boog- her V. Insurance Co., 103 U. S. 90-93, 26 L. ed. 312, Oct. T., 1880. The court will not pass upon exceptions to a charge where the plead- ings do not show the question of law to which the charge relates, and the biU of exceptions does not set forth or refer to the evidence. Jones V. BuckneU, 104 U. S. 554-556, 26 L. ed. 842, Oct. T., 1881. Evidence may be included in a bill of exceptions by appropriate reference to other parts of the record. lb. 556. Upon appeal, the pleadings and the statements of the bill of excep- tions, the verdict and the judgment are the only matters properly before the court. Depositions, exhibits, or certificates, not contained in the bUl, cannot be considered by the court (unless therein properly identified and made a part thereof by reference). It is impossible for the court to know whether the charge to the jury or requests and refusal to charge are correct or erroneous, unless a statement of the evidence is contained in the bill of exceptions. Reed V. Gardner, 17 Wall. 409-411, 21 L. ed. 665, Oct. T., 1873. The material facts or proofs on v. hich instructions on points of law rest should be inserted before the instructions in a bill of exceptions, in order that the Supreme Court may see if the points arose on which the instructions are given, and to which the exceptions are taken. United States v. Morgan, 11 How. 154-158, 13 L. ed. 645, Dec. T., 1850. Where the object and character of the exceptions are intelligible by means of what is stated by the judge in connection with them, though no preliminary evidence is set out on which the points of law arose, the court wiU consider them. lb. 159. RuieV] KULES OF THE SUPREME COURT 83 A bill of exceptions cannot be taken upon the trial of a feigned issue directed by a court of equity, or if taken can only be used on a motion for a new trial made to that court. If the chancellor thinks the trial has not been a fair one, or for any other reason he desires a new trial, it is in his discretion to order it; but he may proceed with the cause, though dissatisfied with the verdict, and make a decree contrary thereto, if the law and evidence require it. Johnson v. Harmon, 94 U. S. 371- 372, 24 L. ed. 271, Oct. 3'., 1876. Rule V — Process 1. All process of this court shall be in the name of the President of the United States, and shall contain the Chris- tian names, as well as the surnames, of the parties. 2. When process at common law or in equity shall issue against a State, the same shall be served „ • . , Process against a State. on the governor, or chief executive magis- trate, and attorney-general of such State. 3. Process of subpoena, issuing out of this court, in any suit in equity, shall be served on the de- subpcena to be served in fendant sixty days before the return day ®° '^^^^' of the said process; and if the defendant, on such service of the subpoena, shall not appear at the return day, the com- plainant shall be at liberty to proceed ex parte. Clause 1 adopted Feb. 5, 1790, as general Rule 5; published 1 Cranch, xvi; 1 Wheat. xiv; 1 Pet. vi; 1 How. xadv; 21 How. vi; 108 U. S. 574; amended Oct. Term, 1900, 180 U. S. 641, 45 L. ed. 1259. Clause 2 adopted Aug. 12, 1796, 3 Dallas, 335. By mistake omitted from rules published in 1 Wheat, and 1 Pet.; published in 3 Pet. xvli; published as Clause 1 of Rule 10 in 1 How. xxiv. Became Clause 2 of Rule 5 in the revision of 1858; published in 21 How. vi and in 108 U. S. 574. Clause 3 adopted as Rule 10, Aug. 12, 1796, 3 Dallas, 335; published 1 Cranch, xvii; 1 Wheat, xv; 1 Pet. vi; 1 How. xxv; published as Clause 3 of Rule 5, 21 Hmo. vi; 108 U. S. 574. Rule promulgated Dec. 22, 1911. 222 U. S. Decisions Congress has passed no act regulating the mode of procedure where the Supreme Court exercises original jurisdiction. New Jersey v. New York, 5 Pet. 284-287, 8 L. ed. 128, Jan. T., 1831. In all cases where original jurisdiction is given the Supreme Court by the Constitution it has authority to exercise it without any Act of Congress to regulate process, and it may regulate and mould its process S4: RULES OP THE SUPREME COURT [Rule V] as will best promote justice. Ex parte Kentucky v. Dennison, 24 How. 66-97, 16 L. ed. 726, Dee. T., 1860. Where a State is defendant the governor is its representative and process must be served on him (and on the attorney-general also). lb. 97. Mandamus is now merely the ordinary process to which when appro- priate every suitor is entitled for asserting a right claimed. lb. 97. Where a writ of error was in accordance with the form transmitted by the clerk of the Supreme Court to the clerks of the Circuit Court imder sec. 1004, Bev. Stats. ( U. S. Comp. Stats., 1901, p. 713), except that it bore teste of the chief justice of the Supreme Court of Texas and was signed by the chief justice and clerk, and sealed with the seal of that court, Held, that the defect might be amended on motion. Bondurant v. Wat- son, 103 U. S. 278, distinguished. Texas Pacific Ry. Co. v. Kirk, 111 U. S. 486-487, 28 L. ed.'481, Oct. T., 1883. In cases against a State if the State shall neglect or refuse to appear on due service of process, the complainant will be allowed to proceed ex parte. Massachusetts v. Rhode Island, 12 Pet. 755-761, 9 L. ed. 1272, Jan. T., 1838. In a suit against a State, service of a subpoena is required on both governor and attorney-general of the State. Service upon one and not upon the other is not sufficient. New Jersey v. New York, 3 Pet. 461-464, 7 L. ed. 742, Jan. T., 1830. Where the official of a State is the party prosecuting the suit for the State, the citation must be served on him. De La Lande v. The Treas- urer, 17 How. 1-2, 15 L. ed. 93, Dec. T., 1854. Rule VI — Motions 1. All motions to the court shall be reduced to writing, and shall contain a brief statement of the facts and objects of the motion. 2. Forty-five minutes on each side shall be allowed to the Time allowed for argu- argument of a motiou, and no more, '"''°'" without special leave of the court, granted before the argument begins. 3. No motion to dismiss, except on special assignment by Notice required. the court, shall be heard, unless previous notice has been given to the adverse party, or the counsel or attorney of such party. Rule VI] RULES OF THE SUPREME COUHT 85 4. All motions to dismiss writs of error and appeals, except motions to docket and dismiss mider Rule 9, must be submitted in the first ^bmuted o^riSl*° ^^ instance on printed briefs or arguments. If the court desires further argument on that subject, it will be ordered in connection with the hearing on the merits. The party moving to dismiss shall serve notice of the motion, with a copy of his brief of argximent, on the counsel for plaintiff in error or appellant of record in this court, at least three weeks before the time fixed for submitting the motion, in all cases except where the counsel to be notified resides west of the Rocky Mountains, in which case the notice shall be at least thirty days. Affidavits of the deposit in the mail of the notice ^^"brilff""™ °* °°"'* and brief to the proper address of the counsel to be served, duly post-paid, at such time as to reach him by due course of mail, the three weeks or thirty days before the time fixed by the notice, will be regarded as prima facie evidence of service on counsel who reside without the District of Columbia. On proof of such service, the motion will be considered, imless, for satisfactory reasons, further time be given by the court to either party. 5. The court in any pending cause will receive a motion to affirm on the ground that it is manifest ,, . Motion to amnn. that the writ or appeal was taken for delay only, or that the questions on which the decision of the" cause depend are so frivolous as not to need further argument. The same procedure shall apply to and control such motions as is provided for in cases of motions to dismiss imder para- graph 4 of this rule. 6. Although the court upon consideration of a motion to dismiss or a motion to aflSrm may refuse to grant the motion, it may nevertheless, if ^ma^"dooS* °° ^^° the conclusion is arrived at that the case is of such a character as not to justify extended argument, order the cause transferred for hearing to a simimary docket. The hearing of the causes on such docket will be expedited, the court providing from time to time for such speedy disposition of the docket as the regular order of business may permit, 86 RULES OF THE SUPBEME COURT [Rule TI and on the hearing of such causes one-half hour will be al- lowed each side for oral argument. 7. The court will not hear arguments on Saturday (unless Motion-day. for Special cause it shall order to the con- trary), but will devote that day to the other business of the court. The motion day shall be Monday of each week; and motions not required by the rules of the court to be put on the docket shall be entitled to preference immediately after the reading of opinions, if such motions shall be made before the court shall have entered upon the hearing of a case upon the docket. Clause 1 adopted January Term, 1838, as Rule 51, 12 Pet. viii; published as general Rule 46 in 1 How. xxxvii. In the revision of 1858 made Rule 6; published in 21 Haw. vi; made Clause 1 of Rule 6 in the revision of 1884, published in 108 V. S_. 574. Clause 2 adopted Deo. 18, 1876, as an additional sentence to Clause 1 of Rule 6, 93 U. S. vii; published 108 U. S. 575. Clause 3 adopted at December Term, 1867, 6 Watt, v; published 108 U. S. 575. Clause 4 adopted May 6, 1872, 13 Wall, xi; published IDS U. S. 575. Clause 5 adopted May 8, 1870, 91 U. S. vii. As originally promulgated the right was limited to writs of error to a State court; amended Nov. 4, 1878, extending the right to all writs of error and to appeals, 97 U. S. vii; published 108 U. S. 575.' Clause 6 adopted December 22, 1911. Clause 7 adopted as Rule 3 (designating Saturday as motion-day), February Term, 1824, 9 Wheat, iv; published as Rule 33 in 1 Pet. xi and as Rule 34 in 1 How. xxxii. In the revision of 1858, made Rule 27 and so published in 21 How. xv, and Friday named as motion-day. Amended Dec. 14, 1874, to make Monday motion-day, 20 Wall, xv; published 108 U. S. 575. Promulgated December 22, 1911. 222 U. S. Decisions Oral argument is not allowed on motion to dismiss appeals or writs of error. It is only necessary to print so much of the record as will enable the court to act understandingly without referring to the tian- seript. Carey v. Railway Co., 150 V. S. 170-179, 37 L. ed. 1043, Oct. T., 1893. Notice of a motion to dismiss an appeal which designates no time for the hearing, is irregular and insufficient. Glenny v. Langdon, 94 U. S. 604r^05, 24 L. ed. 237, Oct. T., 1876. The court will not refuse to hear a motion to dismiss before the term to which the record ought to be returned where its want of jurisdiction I Clause 5 as it stood before the revision at October Term, 1911. There maybe united, with a motion to dismiss a writ of error or an appeal, a motion to affirm on the ground that, although the record may show that this court has jurisdiction, it is manifest the writ or appeal was taken for delay only, or that the question on wliich the jurisdiction depends is so frivolous as not to need further argument. Rule VI] RULES OF THE SUPREME COURT 87 manifestly appears. Ex -parte Riissell, 13 Wall. 664r-671, 20 L. ed. 635, Deo. T., 1871. The court will not hear the motion until the record is presented, and in many cases printed, and where the appellant fails to have the record filed in due time, it may be procured and presented by the appellee. 76. 671. The court will not decide motions to dismiss before the record ia printed where there is any question about the facts upon which the motion rests. To get a decision before printing, the motion papers must present the case in a way which will enable the court to act in- telligently without referring to the transcript on file. Bank v. Insurance Co., 100 U. S. 43, 25 L. ed. 547, Oct. T., 1879. Where the court was not furnished with a copy of the certificate of division or with an agreed statement of what it contained, it refused to entertain a motion to dismiss before printing the record. Water- viUe V. Van Slyke, 115 U. S. 290, 29 L. ed. 406, Oct. T., 1885. Where the want of jurisdiction is patent or requires no investigation of the bill of exceptions, the court will not postpone the question of jurisdiction to the argtmient upon the merits, but will act upon a motion to dismiss for want of jurisdiction. Semple v. Hager, 4 Wall. 431-433, 18 L. ed. 402, Dec. T., 1866. Where copy of the brief and argument had not been furnished op- posing counsel who appeared and filed a brief on the merits, such filing of an argument held a waiver of the notice required by the rule. Thomas V. Wooldrich, 23 Wall. 283-288, 23 L. ed. 136, Oct. T., 1874. An appeal opens the whole controversy and if the case is within the jurisdiction of the court, a cross-biU will not be dismissed for want of jurisdiction as to the amount in controversy. Walsh v. Mayer, 111 U. S. 31-38, 28 L. ed. 341, Oct. T., 1883. Want of jurisdiction, and irregularity of writs of error or appeal are the only grounds for dismissal. Where it appears that a judgment has been rendered which the court has jurisdiction to revise and that it comes up upon proper process duly issued, all other questions must await the final hearing. Hecker v. Fowler, 1 Black, 95-96, 17 L. ed. 45, Dec. T., 1861. Where a case is disposed of under a motion to dismiss an order to advance under Rule 32 wiU not be made. Aspen Mining Co. v. Billings, 150 U. S. 31-34, 37 L. ed. 987j In cases coming from Federal courts if there is no error shown by the record, the prevailing party in the Circuit Court is entitled to an 88 RULES OF THE SUPREME COURT [Rule VI affirmance of the judgment. Hence, though error may be shown by bill of exceptions, or by a demurrer to a material pleading, or may appear by an agreed statement of facts, made a part of the record, or in a special verdict, yet, when all these are wanting it will not be cause to dismiss the suit. New Orleans R. R. Co. v. Morgan, 10 WaU. 256-261, 19 L. ed. 892, Dec. T., 1869. In cases brought to the Supreme Court by writ of error to a State court it must appear on the face of the record by express terms or by necessary impUcation, that some one of the questions described in sec. 25 of the Judiciary Act did arise in the State court, and such ques- tion was decided as provided by that section; otherwise the writ of error will be dismissed in the Supreme Court for want of jurisdiction. lb. 261. Where a cause is brought to the Supreme Court on writ of error issued out under sec. 22 of the Judiciary Act, and all proceedings are regular and correct, it will not dismissed, though the record does not present any question of law for revision, but the decision must be affirmed. The Eutaw, 12 Wall. 136-141, 20 L. ed. 278, Dec. T., 1870. Motions to dismiss may be filed by leave of the court in any case on the calendar before the case is reached on regular call, and such motions are entitled to preference under Clause 6 of Rule 6, but they do not give either party a, right to be heard on the merits. lb. 136. Where the cause is not within the jurisdiction of the court, or where there are material defects in removing it from the subordinate court, the writ of error or appeal may be dismissed on motion. lb. 139. Appeals are subject to the same rules and restrictions prescribed in cases of writs of error, and though no question of law for revision ap- pears upon the record, where the proceedings are regular, and the case is within the jurisdiction of the Supreme Court, the cause cannot be dismissed on motion but the decision must be affirmed. lb. 141. Where the court had jurisdiction of a cause ronoved by writ of error to a State court, but the only Federal question presented on the merits was decided by the court below in accordance with former decisions of the Supreme Court, the motion to dismiss was denied and the motion to affirm was granted. Swope v. Leffingwell, 105 U. S. 3-4, 26 L. ed. 939, Oct. T., 1881. Advantage of the Hmitation for bringing a writ of error or appeal to the Supreme Court may be taken by motion, when either party may avail himself of any objection which appears on the record, with- out any formal assignment of error or plea; the form of proceeding in the English Courts of Error never having been adopted by the Supreme Court. Brooks v. Norris, 11 How. 204-208, 13 L. ed. 666 Dec T 1850. ■ ■' Rule VI] RULES OF THE SUPREME COURT 89 There must be color of right to a dismissal to enable a party to unite a motion to affirm, or to warrant an aflfirmance on motion. Whitney V. Cook, 99 U. S. 607, 25 L. ed. 446, Oct. T., 1878. A catise cannot be dismissed on motion because the appeal may have been brought for delay. The parties have the right to be heard upon the merits. Amory v. Amory, 91 U. S. 356, 23 L. ed. 436, Oct. T., 1874. Where the record as presented gives sufficient color of a right to a dismissal, upon motion to dismiss or affirm, though the defect in the record is cured by further showing by affidavits, and the motion to dismiss denied, if it is apparent that the appeal or writ of error was taken for delay, the motion to affirm will be granted. Micas v. Wil- liams, 104 U. S. 566-557, 26 L. ed. 842, Oct. T., 1881. A motion to affirm cannot be entertained unless there appears on/ the record at least some color of right to a disbiissal. Davis v. Corbin, 113 U. S. 687-689, 38 L. ed. 1150, Oct. T., 1884. The failure to annex or return with a writ of error an assignment of errors as required by sec. 997, Rev. Stats., U. S. Comp. Stats. 1901, p. 712, does not give sufficient color to a motion to dismiss as to warrant enter- taining a motion to affirm. Independent School District, etc., v. Hall, 106 U. S. 428, 27 L. ed. 237, Oct. T., 1882. Out of abundant caution a party may bring his cause upon writ of error and also by appeal, but it is unnecessary to docket it twice. If the cause is docketed on writ of error, the court will not on motion docket and dismiss the appeal, but will determine at the hearing which procedure was proper. Hurst ». Hollingsworth, 94 U. S. Ill, 24 L. ed. 31, Oct. T., 1876. A condition in a bond on appeal with supersedeas that appellants "shall duly prosecute their said appeal with effect and, moreover, pay the amount of expenses and damages rendered, and to be rendered in case the decree shall be affirmed," Held, to conform to the requirements of sec. 1000, Rev. Stats. {U. S. Comp. Stats. 1901, p. 712), and a motion to dismiss for defect in the form of the bond denied. Gaiy v. Parpart, 101 V. S. 391-392, 25 L. ed. 841, Oct. T., 1879. Where the record certified by the clerk of the court below states that the appeal was taken in open court, no evidence dehors the record will be received to impeach its verity or show that the certificate ought not to have been given. The case as therein set forth is the case before the Supreme Court. If the record transmitted is defective or incorrect, a certiorari should be moved for to correct the transcript, though an amendment may be made in the Supreme Court by consent, or a mere 90 RULES OF THE SUPREME COURT [Rule VI clerical error may be amended there. Hudgins v. Kemp, 18 How. 530, 15 L. ed. 512, Dec. T., 1855. A pretended controversy by counsel chosen and paid by the litigant, for the purpose of obtaining the opinion of the court upon a question of law in a mere colorable dispute, where there is no substantial con- troversy between those who appear as adverse parties, is an abuse of judicial proceedings and punishable as a contempt of court. Chamber- lain V. Cleveland, 1 Black, 419-425, 17 L. ed. 94, Dec. T., 1861. A fictitious suit instituted to try the rights of third persons not parties to the record, or where there is no real dispute between the plaintiff and defendant, will be dismissed upon motion upon the facts being shown by affidavit. Lord v. Veazie, 8 How. 251-254, 12 L. ed. 1069, Jan. T., 1850. Any attempt by a mere colorable dispute to obtain the opinion of the court upon a question of law which a party desires to know for his own interest or purposes, when there is no real controversy between those who appear as diverse parties to the suit, is an abuse which courts of justice will not permit. lb. 255. A submission may be set aside upon objection of parties collaterally interested in the decision who have united in the employment of coun- sel to present their defense and contributed to a common fund for the payment of expenses. Smelting Co. v. Kemp, 103 U. S. 666, 26 L. ed. 313, Oct. T., 1880. A cause may be dismissed by the competent parties, usually the parties to the record, unless some third party has become possessed of a beneficial interest, and the party to the record become merely nominal. The fact that an attorney of either party has a lien on the judgment is no objection to the dismissal of the case. Piatt v. Jerome, 19 How. 384-385, 15 L. ed. 624, Dec. T., 1876. That a party to the record may become merely nominal" he must have parted with his interest after the appeal or writ of error sued out. Barribeau v. Brant, 17 Haw. 43^6, 15 L. ed. 35, Dec. T., 1854. The Supreme Court will not dismiss an appeal on the ground of want of jurisdiction in the court below, that question being a proper one for argument when the cause is regularly reached. Nelson v. Leland, 22 How. 48, 16 L. ed. 270, Dec. T., 1859. The propriety or impropriety of an order, granting a supersedeas made in the court below, cannot be considered on a motion to dismiss. Hudgins v. Kemp, 18 How. 530-535, 15 L. ed. 513, Dec. T., 1855. Certificates of the clerk, given after the record is certified, should be made a part of the transcript by motion to amend, if intended to be Rule Vil] RULES OF T'HE SUPREME COURT 91 used on a motion to dismiss, on the ground that the court has not ac- quired jurisdiction. lb. 534. An appearance by the appellee without making a motion to dismiss during the first term to which the citation is returnable is a waiver of any irregularity in the citation and an admission that he has received notice to appear to the writ. Chaffee v. Hayward, 20 How. 208, 15 L. ed. 815. Rule VII — Law Library 1. During the session of the court, any gentleman of the bar having a case on the docket, and Books from library had wishing to use any book or books in the """"i^ °* <='«>•''• law library, shall be at liberty, upon application to the clerk of the court, to receive an order to take the same (not ex- ceeding at any one time three) from the library, he being thereby responsible for the due return of the same within a reasonable time, or when required by the clerk. And in case the same shall not be so returned, the party receiving the same shall be responsible for and forfeit and pay twice the value thereof, and also one dollar per day for each day's de- tention beyond the limited time. 2. The clerk shall deposit in the law library, to be there carefully preserved, one copy of the „ ^ ^ . , , . , 1 . 1 Record, briefs and orinted prmted record m every case submitted to motions deposited in li- . . . ■ brary. the court for its consideration, and of all printed motions, briefs, or arguments filed therein. 3. The marshal shall take charge of the books of the court, together with such of the duplicate law books as Congress may direct to be trans- &^'' ''»' "^""^ "' f erred to the court, and arrange them in the conference room, which he shall have fitted up in a proper manner; and he shall not permit such books to be taken therefrom by any one except the justices of the court. Clause 1 adopted as Rule 39 at January Term, 1833, 7 Pet. iv; published 1 How. xxxiv. In the revision of ISoS made Clause 1 of Rule 7 and so published in 21 How. vi; also in 108 U. S. 576. Clause 2 promulgated Get. 25, 1875, 91 U. S. vii; published in 108 U. S. 570. Clause 3 adopted as general Rule 48 at January Term, 1841, with the substitution of clerk for marshal. Made Clause 2 of Rule 7 in the revision of 1858; published in 21 Haw. vii; published as above in 108 U. S. 576. Promulgated Dec. 22, 1911. 222 U. S. 92 RULES OF THE SUPREME COURT [Rule VlII Rule VIII — Writ of Error and Appeal, Return and Record 1. The clerk of the court to which any writ of error may be directed shall make return of the same, Clerk of court below to . . jr xi. j send up copy of record by transmittmg & vcue copy 01 the record, and of the assignment of i/.,i • j. e jjrii errors; how record shall and of the assignment 01 crrors, and 01 all be made up. ,, • J_^ ji_*lj proceedmgs m the case, under his hand and the seal of the court. In order to enable the clerk to perform such duty and for the purpose of reducing the size of transcripts of record in cases brought to this court by appeal or writ of error, by eliminating all papers not necessary to the consideration of the questions to be reviewed, it shall be the duty of the ap- pellant or plaintiff in error or his attorney to file with the clerk of the lower court, together with proof or acknowledg- ment of service of a copy on the appellee or defendant in error, or his counsel, a prcedpe which shall indicate the portions of the record to be incorporated into the transcript of the record on such appeal or writ of error. Should the appellee or defendant in error, or his counsel, desire addi- tional portions of the record incorporated into the transcript of the record to be filed in this court, he shall file with the clerk of the lower court his prcedpe also, within ten days thereafter (imless the time shall be enlarged by a judge of the lower court or by a justice of this coiui;), in- dicating such additional portions of the record desired by him. The clerk of the lower court shall transmit to lAiis court as the transcript of the record in the case only the portions of the record below designated by both parties as above provided. The parties or their counsel, however, may agree by written stipulation to be filed with the clerk of the lower court the portions of the record which shall constitute the transcript of record on appeal or writ of error, and the clerk in such case shall transmit only the papers designated in such stipulation. If this court shall find that portions of the record un- necessary to a proper presentation of the case have been Rule VIII] RULES OF THE SUI'REME COtTRT 93 incorporated into the transcript by either party, the court may order that the whole or any part of the clerk's fee for supervising the printing and of the cost of printing the record be paid by the offending party. ^ 2. In all cases brought to this court, by writ of error or appeal, to review any iudgnaent or de- „, , , ^^ > , , . , •'■'=' Clert of court below to cree, the clerk of the court by which such ?™d up copy of opinion lu case. judgment or decree was rendered shall annex to and transmit with the record a copy of the opinion or opinions, filed in the case. 3. No case will be heard imtil a complete record, contain- ing in itself, and not by reference, all the caae heard only on com- papers, exhibits, depositions, and other p'«'« f^"""!- proceedings which are necessary to the hearing in this court, shall be filed. 4. Whenever it shall be necessary or proper, in the opinion of the presiding judge in any district court, that original papers of any kind beSup*''"' "^'^ *° should be inspected in this court upon writ of error or appeal, such presiding judge may make such rule or order for the safe-keeping, transporting, and return of such original papers as to him may seem proper, and this court will receive and consider such original papers in con- nection with the transcript of the proceedings. 5. All appeals, writs of error, and citations must be made returnable not exceeding thirty days from the day of signing the citation, S' ?eturnabir''wi?Mn whether the return day fall in vacation ^SatfoT '""^ ''^°''" or in term time, and be served before the return day, except in writs of error and appeals from Cal- ifornia, Oregon, Nevada, Washington, New Mexico, Utah, Arizona, Montana, Wyoming, North Dakota, South Dakota, Alaska, Idaho, Hawaii and Porto Rico, when the time shall be extended to sixty days and from the Philippine Islands to one himdred and twenty days.^ ^ Note all of clause one except the first paragraph was added in the revision at the October Term, 1911. ^ The exception was clause 4 of Kule 9 of the Rules prior to the revision at October Term, 1911. 94 RULES OF THE SUPREME COURT [Rule VIII 6. The record in cases of admiralty and maritime jurisdic- tion, when under the requirements of law when^ iiwer"court^ finds the facts havB been found in the court be- facts and law. j^^^ ^^^ ^^^ powBT of revlew is limited to the determination of questions of law arising on the record, shall be confined to the pleadings, the findings of fact, and conclusions of law thereon, the bills of exceptions, the final judgment or decree, and such interlocutory orders and decrees as may be necessary to a proper review of the case. Clause 1 adopted as Eule 11, Feb. 13, 1797, 3 Dallas, 356; published 1 Cranch, xvii; 1 Wheat. XV ; 1 Pet. vii; 1 Hmii. xxv. Made Clause 1 of Rule 8 in the revision of 1858 and so published in 21 How. vii; amended Jan. 7, 1884; published 108 U. S. 576. Clause 2 adopted Apr. 28, 1873, 15 Wall, v; published in 108 U. S. 576. Clause 3 adopted February Term, 1823, 8 Wheat, vi; published as general Rule 30 in 1 Pet. %. In the revision of 1858 became Clause 2 of Rule 8; published in 21 How. vii and 108 U. S. 577. Clause 4 adopted at February Term, 1817, 2 Wheat, vii; published as general Rule 25 in 1 Pet. ix and as Rule 26 in 1 How. xxix. In the revision of 1858 published as Clause 3 of Rule 8 in 21 How. vii; published as amended in 1871 in 108 U. S. 577. Clause 5 adopted as Rule 33 at December Term, 1867, 6 WaU. vi. Became Clause 4 of Rule 8 in the revision of May 1, 1871, and so published in 108 U. S. 577; amended January 28, 1891, 137 U. S. 710. The last paragraph of Clause 5 adopted as Clause 3 of Rule 63, December Term, 1853, 16 How. ix and so published in 21 How. viii. By the revision of 1871 became Clause 4 of Rule 9 and so published in 108 U. S. 578; amended Jan. 26, 1891, 137 U. S. 711; again amended Jan. 29, 1906, 200 U. S. 626. Clause 6 promulgated May 2, 1881, 103 U. S. xiii; published in 108 U. S. 577. Promulgated December 22, 1911. 222 U. S. Statutory Provisions Sec. 1004, Rev. Stats., U. S. Comp. Stats. 1901, p. 713, was amended by the Act of Jan. 22, 1912, 37 Stat. 54, to read: Writs of error returnable to the Supreme Court, or a Circuit Court of Appeals may be issued, as well by the clerks of the District Courts under the seal thereof, as by the clerk of the Supreme Court, or of a Circuit Court of Appeals. When so issued they shall be as nearly as the case will admit agreeable to the form of a writ of error issued by the clerk of the Supreme Court, or the clerk of a Circuit Court of Appeals. Decisions The writ of error is the process of the Supreme Court though the clerk of the Circuit (District) Court issue it. It should be served by depositing it with the clerk of the court to whose judges it is directed, and accompany the transcript up to the Supreme Court. The loss or destruction of the original writ will not defeat rights acquired under it. Massina v. Cavazos, 6 Wall. 355-360, 18 L. ed. 812, Dec. T., 1867. Rule VIIIJ RULES OF THE SUPREME COURT 95 A writ of error is- a commission by which the judges of one court are authorized to examine a record upon which a judgment was given in another court, and on such examination to afSrm or reverse it; the writ operates upon the record and brings and submits it to the appellate court for re-examination; but matters not appearing on the face of the record are not supposed to have entered into consideration of the court below. Suydam v. Williamson, 20 Hmv. 427-437, 15 L. ed. 982, Dec. T., 1857. Where the facts are not disputed a statement of the same may be drawn up and entered, and submitted directly to the court, or a gen- eral verdict may be taken subject to the opinion of the court upon the facts so agreed; in either case a writ of error may be taken after final judgment. 76. 434. Note. This case is exceptionally instructive as authority upon pro- cedure to obtain a review by an appellate court. The entry of an appeal in the clerk's office is analogous to the issuing of a writ of error; under the rules as they existed in 1848 it was re- turnable to the next term of the appellate court. The citation was at that time required to be returnable at the same time as the appeal, issued and served before the term of the Supreme Court next succeed- ing the entry of the appeal. Where the appeal is not made in open court at the term when the final decree is passed, a citation signed by the judge is necessary. Villabolos v. United States, 6 How. 81-90, 12 L. ed. 356, Jan. T., 1848. Note. By Clause 5, Rule 8, appeals are now returnable within thirty days from the day of signing the citation. No formal allowance by the Circuit (District) Court of a writ of error from the Supreme Court is required. The writ issues as a matter of right; but when sued out security must be given and a citation to the adverse party signed by a judge of the Circuit (District) Court or a jus- tice of the Supreme Court. Ex ■parte Barksdale, 112 V. S. 177-178, 28 L. ed. 692, Oct. T., 1884. The jurisdiction of the Supreme Court can only be invoked by a party having a personal interest in the litigation. No person or official can sue out a writ of error in behalf of third persons. Smith v. Indiana, 191 U. S. 13&-148, 48 L. ed. 127, Oct. T., 1903. The signing of citation by the proper judge in a, proper case is an allowance of an appeal even without the taking of security. Taking security is not jurisdictional; its omission does not avoid the citation, and permission may be given by the Supreme Court to supply the omission. Brown v. McConnell, 124 U. S. 489, 31 L. ed. 496. On appeal taken by the action of the court during the term at which 96 RULES OF THE SUPBEME COURT [Rule VIII the decree is rendered no citation is necessary, because all parties are charged with notice; if the necessary security is not taken until after the term a citation is required to bring the appellee into the Supreme Court, but if the case is docketed in time it will not be dismissed before giving appellant an opportunity to give the requisite notice. 76. Upon an appeal after the term at which the decree is rendered when the citation has been signed by the proper justice or judge, all the appellant has to do to give the Supreme Court jurisdiction of the subject- matter and parties is to serve his citation and docket the case in time. 76. An appeal in a proper case is a matter of right : it can be taken without any action of the appellate court. A writ of error is the process of the appellate court and is issued only on its authority. Ih. The statute makes no provision as to the form of an allowance of an appeal. The acceptance of security for costs, or costs and damages, if followed when necessary by the signing of a citation is in legal effect, the allowance of an appeal. 76. Note. In Kitchen v. Randolph, 93 V. S. 86, 23 L. ed. 810, Chief Justice Waite held that security for costs was to be given when the citation was signed and there could be no valid writ of error without the security. Although a prayer for an appeal and its allowance constitute a valid appeal even if no bond be given (as bond may be given at any time while the appeal is in effect), yet whether brought up by writ of error or appeal, the record must be filed before the end of the term next succeeding the issue of the writ or the allowance of the appeal, or the Supreme Court is without jurisdiction of the case. The validity of an appeal not perfected in time cannot be restored by an order of .the Circuit (District) Court made after the time to appeal has expired. Edmonson v. Bloomshire, 7 Wall. 306, 19 L. ed. 91, Dec. T., 1868. The writ of error hke all common-law writs, becomes functus officio unless some return is made to it during the term of the court to which it is returnable. 76. A writ of error brings up only questions of law; it does not bring up questions of equity arising out of the rules and practice of the courts. Morsell v. Hall, 13 How. 212-216, 14 L. ed. 118, Dec. T., 1851. Matters not assigned for error will not be examined, as no such matters are open for argument under the rules. Clements v. Macheboeuf, 92 U. S. 418, 23 L. ed. 504. Held, in a. d. 1832 there was no rule of court or principle of law which estopped an appellant from assuming a ground of appeal not urged in the lower court, though such course be productive of inconvenience. Watts ■v. Waddell, 6 Pel. 402, 8 L. ed. 442. Rule VIII] RULES OF THE SUPREME COURT 97 Sec. 1011, Rev. Stats., U. S. Comp. Stats. 1901, p. 715, as amended by Act of Feb. 18, 1875, prohibiting a reversal for "error in ruling any plea in abatement other than a plea to the jurisdiction" does not forbid the review of a decision of a question of jurisdiction depending upon the sufficiency of the service of process. Goldey v. Morning News, 156 U. S. 518-520, 39 L. ed. 518, Oct. T., 1894. A writ of error served after its return-day is void; if served before the return-day it may be returned afterwards. Wood v. Lide, 4 Cranch, 180-181, 2 L. ed. 588, Feb. T., 1807. Matters resting in the discretion of a subordinate court cannot be assigned for error in an appellate court. Murphy v. Stewart, 2 How. 263-284, 11 L. ed. 269, Jan. T., 1844. An appeal allowed, or a writ of error served, is essential to the exer- cise of the appellate jurisdiction of the Supreme Court, and a cause caimot be brought into that court by agreement of the parties. County V. Durant, 7 Wall. 694, 19 L. ed. 165, Dec. T., 1868. Parties who have a substantial interest in the case and have been allowed to intervene in the court below have a right to an appeal. Williams v. Morgan, 111 U. S. 684-697, 28 L. ed. 565, Oct. T., 1883. A writ of error may be prosecuted by one of several defendants if it appears from the record that the defendants not joined have been notified in writing and refused to join; summons and severance held imnecesaary. Masterson v. Herndon, 10 Wall. 418, 19 L. ed. 954. Where there is a joint judgment or decree and one of the parties refuses to join in the writ of error or appeal, the proper practice is to issue a writ of summons, by which the one who refuses to proceed is brought before the court, and if he stiU refuses an order of severance will be made whereby the party who wishes to do so may sue alone, though this technical mode of procedure will not be insisted upon, if the record shows that the party refusing to join in the appeal has been notified in writing duly served to appear, and either fails or refuses to join. 76. Held a writ of error in the name of M. D. and others was fatally defective. Deneale v. Archer, 8 Pet. 526, 8 L. ed. 1032, Jan. T., 1834. Prior to the act of June 1, 1872, sec. 1005, Rev. Stats., U. S. Comp. Stats. 1901, p. 719, Held an appeal in the name of F. and Company failed to give jurisdiction and was not amendable. The Protector, 11 WaU. 82-87, 20 L. ed. 48, Dec. T., 1870. An amendment wiU be made, and a motion to dismiss an appeal denied where the bond taken in an appeal in the name of a copartnership 7 98 RULES OF THE SUPREME COURT [Rule VIII shows the individual names of the partners. John T. Moore & Com- pany V. Simmons, 100 U. S. 145, 25 L. ed. 590. Under sec. 1005, Rev. Stats. (U. S. Comp. Stats. 1901, p. 719), amend- ments are allowed in writs of error and appeals where there is anything in the record to amend by. Gumbel v. Pitkin, 113 U. S. 445-449, 28 L. ed. 1130. Where the declaration in the case appearing in the record discloses the names of the individuals composing the firm, a writ of error in the firm name may be amended under sec. 1005, Rev. Stats. (JJ. S. Comp. Stats. 1901, p. 719). Act of June 1, 1872; Estes v. Trabue Davis and Co., 128 U. S. 225-228, 32 L. ed. 438, Oct. T., 1888; Richardson v. Green, 130 U. S. 104-110, 32 L. ed. 876. One of several plaintiffs or defendants affected h^ a joint decree cannot appeal alone without a valid excuse for not joining the others, shown by a summons and severance, or a request to the other plain- tiffs or defendants jointly affected, and their refusal to join in the appeal, or at least a notice to them to appear and their failure to do so, which must appear upon the record of the court appealed from. Inglehart V. Stanbury, 151 U. S. 68-72, 38 L. ed. 77, Oct. T., 1893. So held upon a writ of error, also that the defect is not amendable. Estes V. Trabue Davis and Company, 128 U. S. 228, 32 L. ed. 438. Where it appears by the writ that there were parties to the judg- ment below not personally named in the writ the cause wiU be dis- missed. Wilson's Heirs v. Insurance Co., 12 Pet. 140-141, 9 L. ed. 1032, Jan. T., 1838. An amendment presupposes jurisdiction of the case. Where by an oversight of the clerk of the trial court the writ of error was in tie name of the defendants, who were satisfied with the judgment when it was evident the writ was intended to be sued out by the plaintiff. Held, the writ was matter of substance, essential to jurisdiction, and even where counsel appeared and consented to an amendment, the court was without power to amend the writ of error. Hodge v. Williams, 22 How. 87-88, 16 L. ed. 237, Dec. T., 1859. Since the Act of June 1, 1872 (sec. 1005, Rev. Stats., U. S. Cmnp. Stats. 1901, p. 719), a writ of error in the name of a former administrator may be amended by inserting the name of an administrator substituted in th^ court below. The authorities on the subject collected. Walton V. Srariotta Chair Co., 157 U. S. 342-347, 39 L. ed. 727, Oct. T., 1894. Rule VIII] KULES OF THE SUPREME COURT 99 A writ of error may be amended in its return-day, when a new cita- tion should issue. National Bank of St. Louis v. National Bank of New York, 99 U. S. 608-610, 25 L. ed. 362, Oct. T., 1878. Sec. 1005, Rev. Stats. {U. S. Comp. Stats. 1901, p. 714), authorizes the Supreme Court in its discretion to allow an amendment of a writ of error, provided the defect has not prejudiced the defendant in error. Upon motion to amend the return-day of a writ served and for a new citation the court allowed the amendment though less than thirty days intervened before the day to which the amended writ was made re- turnable. 76. The provision of see. 999, Rev. Stats. {U. S. Comp. Stats. 1901, p. 712), iS' not that citation must be served thirty days before the return-day but that the defendant in error shall have at least thirty days before he can be compelled to go to a hearing. 7b. Held the 32d section of the Judiciary Act of 1789 allowing amend- ments eilibraced causes of appellate as well as original jiu-isdiction: that according to the common law there is nothing in the nature of appellate jurisdiction which forbids the granting of amendments. It has been the practice of the Supreme Court where amendments are necessary to remand the cause to the trial court for that purpose, but where counsel on both sides agree the amendment may be made in the Supreme Court. Kennedy v. The Bank, 8 How. 586-610, 12 L. ed. 1219. A writ of error issued with a different return-day from that pre- scribed by law, or differing in any other material respect from the form transmitted by the clerk of the Supreme Court, under the Act of May 8, 1792, is without authority of law and will not bring up a case to the Supreme Court. Insurance Co. v. Mordecai, 21 How. 195-202, 16 L. ed. 95, Dec. T., 1858. Such a writ cannot be amended. The citation can be signed Only by the justice or judge who allows the writ of error. 7b. The signature of the clerk of a State court is not fatal, and the writ may be amended. Miller v. Texas, 153 U. S. 635-537, 38 L. ed. 813, Oct. T., 1893. Here the writ ran in the name of the President and was tested in the name of the Chief Justice of the Supreme Court of the United States. 7b^ A writ of error not sealed is a nullity. City of Washington v. Denni- son, 6 Wall. 495, 18 L. ed. 863, Dec. T., 1867. A writ of error wanting the "teste" is fatally defective and cannot be amended in the Supreme Court. Moulder v. Forrest, 7 Wall. 567,- 19 L. ed. 154, Dec. T., 1868. 100 RULES OF THE SUPREME COURT [Rule VIII A mistaken date in a writ of error does not vitiate the writ, where regularly issued and served. O'Dowd v. Russell, 14 Wall. 402, 20 L. ed. 858. A citation is essential to the validity of a writ of error, without it the writ will be quashed. Lloyd p. Alexander, 1 Cranch, 365, 2 L. ed. 137. Citation with due return or waiver by general appearance or other- wise, is indispensable to jurisdiction on appeal. Alviso v. United States, 5 Wall. 824, 18 L. ed. 492, Dec. T., 1866. A citation is unnecessary only when the appeal is allowed in open court during the term at which the decree is rendered; the allowance should be entered on the minutes. Vansant v. Gas Light Co., 99 U. S. 213, 25 L. ed. 265, Oct. T., 1878. Though no citation appears in the record it may be proved aliunde that it issued. Innerarity v. Byrne, 6 How. 295, 12 L. ed. 159, Jan. T., 1847. The writ of error brings up the record; the citation brings the parties before the court. Cohens v. Virginia, 6 Whsat. 410-411, 5 L. ed. 293. Citation has not the effect of process of summons; failure to appear is not taken as a default and judgment may not be given against the defendant in error, but the judgment or decree will be re-examined in like manner as if appearance and argument were had. lb. 411. When an appeal is allowed in open court and perfected during the term at which judgment or decree was rendered, no citation is neces- sary, but if not perfected until after the term, a citation is necessary to bring in the parties, but if the appeal be docketed at the next term, or the record be ready to docket then, a citation may issue by leave of court, even after the time for taking an appeal. Where the appeal is allowed at a term subsequent to that of the judg- ment or decree, a citation is necessary, but may be issued, returnable after the expiration of the time for taking an appeal, if the allowance of the appeal is before. A citation is a necessary element of an appeal taken after the term. If not issued and served before the end of the next ensuing term of the Supreme Court, and not waived, the appeal becomes inoperative. Jacobs V. George, 150 U. S. 415-417, 37 L. ed. 1127, Oct. T., 1893. The citation, if the appeal is allowed in open court, but the security is taken out of court or after the term, is only necessary to show that the appeal has not been abandoned by failure to furnish the security. It is not jurisdictional and if by accident it has been omitted, a Rule VIII] RULES OF THE SUPREME COt motion to dismiss an appeal allowed in open court, and at the proper term, will never be granted until an opportunity to give the requisite notice has been furnished; and this whether the motion is made after the expiration of two years from the rendition of the decree, or before. Dodge V. Knowles, 114 U. S. 436-439, 29 L. ed. 297, Oct. T., 1884. Where the Supreme Court orders a reargument and that the ap- pellee may be heard, and the order is served on the appellee, such order is equivalent to a citation. 76. 439. The provision of sec. 5, of Rule 8, that the citation shall be return- able within thirty days is not jurisdictional, and a new citation may be taken out if necessary, by reason of the return-day being made beyond the time prescribed. Shute v. Keyser, 149 U. S. 649-650, 37 L. ed. 884, Oct. T., 1892. Until the adoption of the rules promulgated at December Term, 1867 (6 Wall, vi, 20 L. ed. 901) all writs of error were made returnable on the first day of the term next after their date, no matter how short the time between the day of the issue and that of the return. Citation followed the writ, and service was required before the return-day. 76. That the citation was served and made returnable less than thirty days after the writ of error was granted not ground for dismissal. Segrist V. Crabtree, 127 U. S. 773, 32 L. ed. 323. Where a citation actually issued upon the allowance of an appeal the court may allow a new citation to issue and be served, retaining the appeal. Dayton v. Lash, 94 U. S. 112, 24 L. ed. 33, Oct. T., 1876. Where by amendment allowed the return-day of a writ of error is changed a new citation should issue. 76. A citation is merely notice to the party, and his appearance in person or by attorney is an admission of the notice on the record, and he can- not afterwards withdraw it. United States v. Yates, 6 How. 605-608, 12 L. ed. 676, Jan. T., 1848. Though the appearance is special in terms, if not limited to a motion to dismiss. Held, to be a waiver of objection that the citation on a writ of error was served out of the jurisdiction of the court from which it issued. Renauld v. Abbott, 116 U. S. 277-281, 29 L. ed. 630, Oct. T., 1885. A general appearance of counsel and motion to dismiss for failure to docket an appeal made after the appeal has become inoperative by the expiration of the term when it should have been docketed, is not a waiver of the citation. Radford v. Fokom, 123 U. S. 725-727, 31 L. ed. 293, Oct. T., 1887. 102 BULES OF THE SUPREME COURT [Rule VIII Service of subpoena on the attorney or counsel of a party is suf- ficient; but service upon the executor of counsel of record, deceased, is a nullity. Bacon v. Hart, 1 Black, 38-39, 17 L. ed. 52, Dec. T., 1861. That no assignment of errors is annexed to the transcript, as required by sees. 997, 1012, Rev. Stats. {U. S. Comp. Stats. 1901, pp. 712, 716), is not sufficient to compel a dismissal of the appeal, as under Clause 4 of Rule 21 the court may notice a plain error not assigned. United States V. Pennsylvania, 175 U. S. 500-602, 44 L. ed. 252, Oct. T., 1899. Service of citation must be personal upon the adversary or his attor- ney. The court announced it could not be governed in the matter of its process by State laws; that actual notice or notice as directed by rule or special order must be shown to bring the parties into court. Held citation may be served as prescribed for service of subpoena by Rule 13, equity rules. Tripp v. Santa Rosa, etc., Co., 144 U. S. 126, 36 L. ed. 372. Where the defendant below intermarried after judgment and before service of the writ of error. Held, service of the citation upon the husband was sufficient. Fairfax v. Fairfax, 5 Cranch, 19-21, 3 L. ed. 25. Where a party dies before the appeal is allowed the suit should be revived in the lower court and the citation should be addressed to the actual parties to the suit at the time the appeal is allowed and prosecuted. Where counsel for defendants endorsed upon the citation "I hereby acknowledge service of the within citation" and attached his signature, held the attorney of record knew that the appeal was allowed and prosecuted, which is the only purpose of a citation, and had waived all formal objections to the citation issued. Begler v. Waller, 12 Wall. 142, 20 L. ed. 261. An objection that citation has not been served should be made by motion to dismiss at the first term of appearance, which should be special and entered for that purpose only. A delay to avail of the objection that notice has not been given may throw the other party off his guard until the limitation of the appeal or writ of error has expired. Buckingham v. McLean, 18 How. 150-151, 14 L. ed. 91, Jan. T., 1851. The Judiciary Act does not, in terms, require the approval of the appeal bond in writing; its approval by the judge may be inferred from his signing the citation and witnessing the bond. Davidson v. Lanier, 4 Wall. 447-453, 18 L. ed. 379, Dec. T., 1866. A writ of error cannot be treated as a nullity because security is not given, but the appellate court on application will see that the rights of the defendant in error are not thus prejudiced. 7b. 453. Rule VIIIJ RULES OF THE SUPREME COURT 103 Where the date of the citation is manifestly a clerical error, a wrong date does not invalidate it. /&. 453. The fact that a second writ of error and citation are issued but not served cannot prejudice a wi'it and citation duly issued and served. Held the writ of error need not be allowed by any judge, if it actually issued and was served by copy lodged with the clerk of the court to which it was directed. 76. Neither the signing of the citation nor the approval of the bond is necessary to give jurisdiction of an appeal taken in due time, but it is essential that the record be filed before the expiration of the term at which the appeal is returnable. Evans v. State N. Bank, 134 U. S. 330-331, 33 L. ed. 917, Oct. T., 1889. Where through mistake or accident no bond or a defective bond has been filed the Supreme Court will not dismiss the appeal, except on failure to comply with its order to give the proper security within a prescribed time. Seymour v. Freer, 5 Wall. 822-823, 18 L. ed. 564, Dec. T., 1866. The essentials of an appeal are allowance, citation to appellees, or equivalent notice or waiver, and the bringing up of the record to the next term of the Supreme Court. Security for prosecution should be taken by the judge on signing the citation, but if omitted or defectively performed a remedy may be had in the appellate court on motion. lb. 823. If the transcript is not filed and the cause docketed during the term to which it is made returnable, the writ of error or appeal becomes a nuUity and the cause will be dismissed upon motion, or by the court sua sponte. Grigsby v. Purcell, 99 U. S. 505-506, 25 L. ed. 354, Oct. T., 1878. By sec. 1012, Rev. Stats. (U. S.Comp. Stats. 1901, p. 716), the hmitation of time within which a writ of error may be brought (sec. 1008, Rev. Stats., U. S. Comp. Stats. 1901, p. 716), is made applicable to appeals. An appeal is not "taken" until it is presented to the court which made the decree appealed from. lb. 260. Where an appeal was allowed on the last day on which an appeal could be taken, but not presented and filed with the clerk of the court below until five days after said time had expired, the appeal held in- effectual. Credit Co. v. Arkansas C. R. Co., 128 U. S. 258-259, 32 L. ed. 448, Oct. T., 1888. Where an appeal had been allowed and no return of the record made to the Supreme Court, at the ensuing term. Held the appeal ceased to have any effect. lb. 259. When time for taking an appeal has expired it cannot be arrested or called back by an order nunc pro tunc. lb. 260, 104 RULES OF THE SUPREME COURT [Rule VIII If the appeal is taken within the time allowed, the security required by law may be given after the time to appeal has expired. In such case, Held, that the time and mode of taking the security for perfecting the appeal are matters of discretion to be regulated by the court grant- ing the appeal, and when its order is pomplied with the later acts relate back to the time when the appeal was allowed. The Dos Hermanos, 10 Wheat. 306-311, 6 L. ed. 329, Feb. T., 1825. A prayer of appeal in due time, though not then granted by the court, secures this- right, and no delay by the court in its allowance can impair it. In such case the order for its allowance may be made nunc pro tunc. United States v. Vigil, 10 Wall. 423-426, 19 L. ed. 955, Dec. T., 1869. By the acceptance of the security by the judge of the Circuit (District) Court or judge or justice of the appellate court, the appeal is allowed. Sage V. Central R. R. Co., 96 U. S. 712-715, 24 L. ed. 643, Oct. T., 1877. Brandies v. Cochrane, 105 U. S. 262, 26 L. ed. 989. An order allowing an appeal is subject to the power of the trial court over its decrees so long as the appeal remains unperfected and the cause has not passed into the jurisdiction of the appellate tribunal. Aspen, etc., Co. V. BiUings, 150 U. S. 35, 37 L. ed. 988. Although when the appeal is allowed all jurisdiction is transferred to the appellate court, yet after allowance it remains during the term subject to the power of the lower court. If during the term at which the decree is rendered the allowance is vacated it revokes what has been done and leaves the decree standing. Goddard v. Ordway, 101 U. S. 745, 25 L. ed. 1043. That the lower court may retain power during the term to set aside the allowance of an appeal such allowance must be the judicial act of the court itself. The power of a judge of the trial court over the ajSpeal and the security is exhausted when he takes the security and signs the cita- tion. From that time the control over the appeal including the super- sedeas is transferred to the Supreme Court, and even in that court the action of the judge allowing the appeal in the absence of fraud is final, so far as dependent on facts existing at the time, and the court below has no power to proceed to execute its decree. Draper v. Davis, 102 U. S. 370, 26 L. ed. 122. An order allowing an appeal is subject to the power of the Circuit (District) Court so long as the appeal remains unperfected and the cause has not passed into the jurisdiction of the appellate tribunal. Aspen M. & S. Co. V, Billings, 150 U. S. 31-35, 37 L. ed. 988, Oct. T., 1893. Rule VIII] RULES OF THE SUPREME COURT 105 Although the record may have been removed to the appellate court on appeal yet the court below may allow a cross-appeal, sign citation and approve a bond within the two years prescribed by law. Farrar v. Churchill, 135 U. S. 609, 34 L. ed. 249. Where a cross appeal is allowed by a Justice of the Supreme Court the petition and order of allowance must be filed in the court below within the time allowed by law. 76. A cross appeal is not taken until brought to the attention of the court whose decree it questions. 76. If not perfected until long after the time when by law it should be done, a cross-appeal wiU be dismissed by the court on its own motion for want of prosecution. Hilton v. Dickinson, 108 U. S. 165-168, 27 L. ed. 689, Oct. T., 1882. It is not the duty of the clerk of the court below to furnish a tran- script upon the allowance of a writ of error, but only until there is a writ of error to which it can be annexed, and with which it can be returned. Ex parte Ralston, 119 U. S. 613-615, 30 L. ed. 507, Oct. T., 1886. The return of a copy of the record of the proper court, under the seal of that court, annexed to the writ of error, is a compliance with the mandate of that writ. Martin v. Hunter's Lessee, 1 Wheat. 304r-361, 4 L. ed. Ill, Feb. T., 1816. It is not essential that the bond required by the 22d sec. of the Judi- ciary Act be taken by the judge granting the writ of error, when the citation is signed. The provision is directory. If any party be prej- udiced by the omission, the Supreme Court can grant him relief. The statute does not require the bond taken to be returned to the Supreme Court; it may be lodged in the court below. 76. 361. A transcript is sufficiently authenticated if signed by the deputy clerk in the name of the clerk of the court from which the appeal comes, or to which the writ of error is directed, and authenticated by the seal of the court. Garnau v. Dozier, 100 U. S. 7-8, 25 L. ed. 536, Oct. T., 1879. Upon a transcript lacking seal of the court and signature of the clerk, the Supreme Court is without jurisdiction of the case, and the writ of error must be dismissed. Blitz v. Brown, 7 Wall. 693-694, 19 L. ed. 281, Dec. T., 1868. Leave to perfect a transcript lacking such signature and seal denied, but permission granted to withdraw the record, to be brought up again by a new writ of error. 76. 694. Where a rehearing lias been granted in the court below after the record has been filed in the Supreme Court, the proper practice is for 106 RULES OF THE SUPREME COURT [Rule VIII the court below to request the Supremo Court to return the record in order that it may proceed further in the cause. In a proper case and under proper restrictions the court will make the necessary order upon such an application, but not on application of the parties. Roemer V. Simon, 91 U. S. 149-150, 23 L. ed. 267, Oct. T., 1876. The original papers to be transmitted, though within the discretion of the court below, should be confined to such as require actual in- spection as originals in order to give them their full eflfect in the de- termination of the suit. Craig v. Smith, 100 U. S. 226-232, 25 L. ed. 579, Oct. T., 1879. Papers which properly belong in the files of the court should never be removed except in cases of positive necessity. lb. 233. Where inspection of the original documents used in the court below is necessary, the court will order the original papers to be sent up. The Elsineur, 1 Wheat. 439, 4 L. ed. 130, Feb. T., 1816. Where the biU of complaint prayed liberty to refer to the files and records of a former suit in the trial court but the appeal record con- tained no stipulation that the record of the former suit be considered a part of the bill, and no part was contained in the transcript, Held, the appellate court could not consider anything not contained in the bill, and exhibits attached, and could not look into the files and records of the former suit though in the appellate court. Pacific R. R. of Mo. V. Mo. Pacific R. Co., Ill i7. S. 505, 28 L. ed. 503, Oct. T., 1883. Where upon the record it was found that certain exhibits in the cause which the court below might have called for before making its decree were not set out, the court reversed the decree and remanded the cause for further proceedings, making it obligatory on complainant to produce the contracts on which the suit was founded, with liberty to use the evidence already taken and adduce such other evidence of their respec- tive equities as either may offer. Levy v. Arrodendo, 12 Pet. 218, 9 L. ed. 1062. The mere fact that a paper was found among the files in a cause does not in itself make it a part of the record. If not a part of the plead- ings or process in the cause it must be put into the record by some action of the court below. England v. Gebhart, 112 U. S. 502-506, 28 L. ed. 812, Oct. T., 1884. The opinion of the court, transmitted in accordance with sec. 2, Rule 8, does not thus become a part of the record. Where a petition averred the parties were citizens of different States, and the finding of the court was to the contrary. Held, that this implied the finding of a fact upon evidence, but as there was no Bill of exceptions in the Rule VIII] RULES OF THE SUPREME COURT 107 record and no authentic finding or statement of facts, the court could not re-examine the finding of the lower court. Ih. 505. Note. Siee this case distinguished in Loeb v. Trustees, etc., 179 U. S. 472-485, post, page 106. Clause 3 of Rule 8 was not strictly enforced after the records ceased to be in manuscript; and where a stipulation of counsel existed to refer to another record in the Supreme Court, Held, the cause should not" be dismissed because the record was incomplete. United States v. Daven- port's Heirs, Dec. T., 1851, 35 L. ed. 1174. Where a record sent up contained nothing but an agreed statement of facts and the judgment of the Circuit Court on these. Held, that the return was not in accordance with Clauses 1 and 3, of Rule 8; that the record must show the proceedings in the lower court, or the Supreme Court is without jurisdiction. Keene v. Whittaker, 13 Pet. 459, 10 L. ed. 246, Jan. T., 1839. Note. In this case, as also in Curtis v. Petitpain, 18 How. 109, the 31st Rule referred to is evidently a misprint and should read 30th Rule, - being Clause 3 of Rule 8 of present rules. Appeals in equity are heard upon the pleading and proofs below. No new evidence can be admitted, and the pleadings cannot be amended in the Supreme Court. Pacific Railroad Co. v. Ketchum, 95 U. S. 1-3, 24 L. ed. 348, Oct. T., 1877. In appeals from chancery decrees all the testimony on which the judge founds his opinion, unless waived by consent of the parties ap- pearing in the record, should appear on the record. Connecticut v. Pennsylvania, 5 Wheat. 424-426, 5 L. ed. 125, Feb. T., 1820. In 1820 the court held that upon an appeal in chancery that all the testimony upon which the trial judge founds his opinion should appear in the record, and reversed a decree founded on oral testimony because it was not sent up in the record. Conn. v. Penn., 5 Wheat. 425- 426, 5 L. ed. 125. The laws of the United States have always proceeded on the supposi- tion that the facts as well as the law should be laid before the Supreme Court when called upon to revise decrees in chancery. 76. An appeal to the Supreme Court in equity and admiralty causes was required by the Act of March 3, 1803, 2 Stat. L. 244, sec. 2, to be heard upon a transcript of the bill, answers, and all other proceedings in the trial court. Previously the facts were brought up by a statement of the judge. Blease v. Garlington, 92 U. S. 1, 23 L. ed. 522. 108 RULES OF THE SUPREME COURT [Rule VIII A certificate of the clerk that certain papers were offered in evidence and motion made for a new trial with the grounds therefor, does not make the documents or evidence a part of the record. The facts and documents should be authenticated by the court itself. Reed v. Marsh, 13 Pet. 153-156, 10 L. ed. 105, Jan. T., 1839. Where appellant had selected such papers as he deemed necessary on the hearing of the appeal, and had the same certified as the tran- script, the court ordered him to file such omitted papers as appellee deemed necessary, duly certified, by a named time, or the appeal would be dismissed. Raihroad Co. v. Schutte, 100 U. S. 644-648, 25 L. ed. 606, Oct. T., 1879. The omission of necessary pleadings from the record is contrary to Clause 1 of Rule 8, and in such case under Clause 3 of said rule, the court wiU refuse to hear the cause; but where it appears that the omitted papers are in the court below, and that the transcript has been long on file without any motion by the defendant in error to dismiss because of failure to comply with the rules, and both parties have submitted the cause on the merits, the plaintiff in error may be allowed to sue out a writ of certiorari to bring up the papers omitted from the transcript. Parks V. Redfield, 130 U. S. 623-625, 32 L. ed. 1054, Oct. T., 1888. Attention called to the form of the clerk's certificate which failed to certify that the transcript was "a true copy of the record, and of the assignment of errors, and of all proceedings in the case." 7b. 625. Where the record is certified as containing "certain" pleadings, records, and proceedings, but fails entirely to present any of the ques- tions argued in proper form, the judgment will be afiirmed. Greenhood V. RandaU, 111 U. S. 775, 28 L. ed. 596, Oct. T., 1883. Where the allegations of the bill and answer are not sufficient to place upon the record the facts necessary to determine the cause, the decree may be reversed and the cause remanded with liberty to amend the pleadings. Estho v. Lear, 7 Pet. 130-131, 8 L. ed. 633, Jan. T., 1833; Armstrong v. Lear, 8 Pet. 52-73, 8 L. ed. 871, Jan. T., 1834. T^e 6th sec. of the Act of Mar. 3, 1891, did not change the limit of two years in which writs of error may issue from the Supreme Court to State courts. Allen v. So. Pac. R. Co., 173 U. S. 479-488, 43 L ed. 778, Oct. T., 1898. Congress left unchanged, by the Act of 1891, the limitation as to the time within which error may be prosecuted from the Circuit and District Courts of the United States to the Supreme Court (which by sec. 1008, Rev. Stats., is two years). lb. 488. Rule VIII] BULKS OF The supreme court 109 Note. Writs of error and appeals to the Circuit Court of Appeals must be sued out within six months after the entry of the order, judg- ment, or decree sought to be reviewed. Sec. 11 of the Act of Mar. 3, 1891. Rule 8 does not require a copy of assignment of errors in the tran- script, when no such assignment was filed in the court below. Gumbel V. Pitkin, 113 U. S. 445, 28 L. ed. 1129. It is the fihng of the writ of error which removes the record from the inferior to the appellate court. In the legal meaning of the term the writ of error is not brought until it is so filed. The day of issue or teste of the writ is immaterial in determining whether the writ has been brought within the period of limitations prescribed by Congress. Brooks V. Norris, 11 How. 204-207, 13 L. ed. 666. According to the English practice the defense that the writ was not brought within the time allowed must be presented by plea, and the court could not judicially notice it, as the limitation of time is not an objection to the jurisdiction of the court. It is a defense the defendant in error may waive, or if it appear upon the record may avail himself by motion. lb. Where the first appeal has not been legally prosecuted, a party has a right, after dismissal of the first appeal, to a second appeal with new citation, if taken before the expiration of the time limited by law. Yeaton v. Lenox, 8 Pet. 123-124, 8 L. ed. 889, Jan. T., 1834. The opinion cannot be referred to eke out, control, or modify the scope of the findings, nor to take the place of special findings of fact under sees. 649, 700, Rev. Stats. (U. S. Comp. Stats. 1901, p. 525, 570). British Queen M. Co. v. Baker, etc., Co., 139 U. S. 222, 35 L. ed. 147, Oct. T., 1890; SaltonstaU v. Birtwell, 150 U. S. 417-419, 37 L. ed. 1129, Oct. T., 1893. The report of the judge who tried the cause before a jury containing a statement of the facts cannot be considered a part of the record. Such report is mere matter in pais to regulate the court's discretion as to further proceedings in the trial court and cannot be considered to sustain the jurisdiction of the court which the record fails to show. Inglee v. Coohdge, 2 Wheat. 36^-368, 4 L. ed. 262, Feb. T., 1817. It was said in England v. Gebhart, 112 U. 8. 502-506, 28 L. ed. 812, that the requirement of Clause 2 of Rule 8, for annexing to the record a copy of the opinion filed in the cause in the trial court, does not make such opinion a part of the record below. HeM, to mean that under Rule 8 the opinion cannot be referred to for evidence of the facts found no BlTLES 0.F THE SUPREME COURT [Rule VIII below, upon which the judgment was based. The court may look into the opinion filed and transmitted under Rule 8 to ascertain whether either party in the Circuit Court claimed that a State statute upon which the judgment depended was in contravention of the Constitution of the United States. Loeb v. Trustees, etc., 179 U. S. 472-485, 45 L. ed. 288, Oct. T., 1900. Where the cause is tried by the court without a jury and there is a general finding without any special finding of facts and no agreed statement of facts, the review in the Supreme Court, under sec. 700, Rev. Stats., U. 8. Comp. Slats. 1901, p. 570, is limited to the sufficiency of the complaint and the rulings, if any, preserved on questions of law during the trial. Lehnen i;. Dickson, 148 U. S. 71-72, 37 L. ed. 373, Oct. T., 1892. The practice to obtain a review in causes tried by the court without a jury set forth. 76. After the Act of Feb. 16, 1875 (18 Stat. L. 315), the evidence or the opinion of the trial court in admiralty causes had no place in the record to be sent to the Supreme Court, and Clause 6 of Rule 8 was pro- mulgated to exclude it. The Annie Lindsley, 104 U. S. 185, 26 L. ed. 718, Oct. T., 1881. This clause of the rule was promulgated with the opinion in the case of The Adriatic, 103 U. S. 730-731, 26 L. ed. 606, where it is said that as the facts found by the trial court are to be taken as conclusive the testimony is not "necessary on the hearing of the appeal" and so is not required to be sent up by sec. 698, Rev. Stats. (JJ. S. Comp. Slats. 1901, p. 568), and by consent of counsel might be omitted before' the amendment of the rule. Under the Act of Mar. 3, 1887 (24 Slat. L. 505, ch. 359, the Tucker Act), a judgment against the Government will be re-examined kOnly when the record contains a specific finding of facts with the conclusions of law thereon, and the court will only inquire whether the judgment below is supported by the facts found. Chase v. United States, 155 U. S. 489-500, 39 L. ed. 238, Oct. T., 1894. Where there are specific findings or statements of fact and conclu- sions of law, a like restriction of appellate inquiry is required in equity and admiralty cases. lb. 500. The findings of fact on appeal from the Supreme Court of a Territory are conclusive. Harrison v. Perea, 168 U. S. 311-323, 42 L. ed. 482, Oct. T., 1897. The same as to findings by the Court of Claims. Stone v. United States, 164 U, S. 380-382, 41 L. ed. 478, Oct. T., 1896. Rule VIII] BULES OF THE SUPKEME COURT 111 On writ of error to the Supreme Court of Louisiana the opinion of that court is to be treated as part of the record. Eagan v. Hart, 165 U. S. 188-190, 41 L. ed. 681, Oct. T., 1896. Upon a submission of issues of fact to a jury in an equity cause for the information of the court, it is not the practice for an appellate court to consider formal objections to rulings in the course of the trial before the jury. Wilson v. Riddle, 123 U. S. 608-615, 31 L. ed. 283, Oct. T., 1887. The practice, upon the submission of such an issue, is to order a jury to be empanelled on the law side of the court, and the verdict to be certified by the clerk to the equity aide. 7b. 614. As writs of error from the Supreme Court can only go to the highest court of a State, it wiU not he to review the order of a State judge at chambers. McKnight v. James, 155 U. S. 685-687, 39 L. ed. 311, Oct. T., 1894. A writ of error to a State court must be allowed by the chief justice or judge of such court, or by a justice of the Supreme Court, or it will be dismissed for want of jurisdiction. Bartmeyer v. Iowa, 14 Wall. 26-28, 20 L. ed. 792, Dec. T., 1871. Such writ can only issue when one of the questions mentioned in the 25th sec. of the Judiciary Act was decided by the court to which the writ is directed, and the statute (now sec. 999, Rev. Stats., U. S. Comp. Stats. 1901, p. 712) requires the citation to be signed 'by the chief judge of such court or by a justice of the Supreme Court, that there may be some security that such question was decided in the case. lb. 28. Where a State constitution prescribes which of the assoeiate justices shall act as chief justice in case oT the latter's absence, it wiU be pre- sumed that the justice asserting himself to he the presiding judge and allowing a writ of error and signing the citation is such. Butler v. Gage, 138 U. S. 52-56, 34 L. ed. 871, Oct. T., 1890. A writ of error to a State court allowed by an associate judge or justice, with nothing in the record warranting the inference that such associate judge was at the tiine acting as chief judge pro tern., does not confer jurisdiction on the Supreme Court, and this though there be in the record an affidavit of counsel that the chief judge was abroad, when the writ was allowed and citation signed. Havnor o. State of New York, 170 U. S. 408-410, 40 L. ed. 1088, Oct. T., 1897. It is sufficient compUance with the rule that upon writ of error from a State court the record should be signed by the clerk without the signature of the judge. It should be authenticated by the seal of the court. Worcester v. Georgia, 6 Pet. 515-537, 8 L. ed. 492, Jan. T., 1832. I^pTE. Writ of error, citation, and certificate set out on pages 532-534, 112 RULES OF THE SUPBEME COURT [Rule IX Where the clerk of a State court failed to return the transcript be- cause that court had directed him to make no return to the writ of error, the Supreme Court ordered a rule on the clerk to compel him to return the transcript before a named day. United States v. Booth, 18 Haw. 476-477, 15 L. ed. 464, Dec. T., 1855. Where an authenticated copy of the record of such State court was filed by the plaintiff in error, the court declared that the refusal of the clerk to obey the writ of error could not prevent the exercise of its appellate power, but continued the case until the rule upon the clerk should be answered. lb. 478. The clerk of the State court persisting in a refusal to make return to the writ of error, an authenticated copy of the record of proceedings in the State court furnished by the plaintiff in error was allowed to be filed, the cause docketed and set for argument. United States v. Booth, 21 How. 506-612, 16 L. ed. 172, Dec. T., 1858; Ableman v. Booth, Tb. The petition for a writ of error to a State court and the assignment of errors therein form no part of the record on which to determine whether a Federal question was determined in the State court. Cork- ran Oil Co. V. Arnaudet, 199 U. S. 182-193, 50 L. ed. 150, Oct. T., 1905. On error to a State court the Supreme Court cannot re-examine the evidence, and when the facts are found below, is concluded by such finding, whether the cause is in chancery, as well as in a, case at law. Egan V. Hart, 165 U. S. 188-189, 41 L. ed. 681, Oct. T., 1896. Rule IX — Docketing Cases 1. It shall be the duty of the plaintiff in error or appellant Record to be filed before to docket the casc and file the record defendant'may'have oaae thereof with the clerk of thlS'COUrt by Or doeketddanddismi,.ed. ^^f^^.^ ^^^ retum-day, whether in vaca- tion or in term time. But, for good cause shown, the justice or judge who signed the citation, or any justice of this court, may enlarge the time, by or before its expiration, the order of enlargement to be filed with the clerk of this court. If the plaintiff in error or appellant shall fail to comply with this rule, the defendant in error or appellee may have the cause docketed and dismissed upon producing a certificate, whether in term time or vacation, from the clerk of the court wherein the judgment or decree was rendered, stating the case and cer- tifying that such writ of error or appeal has been duly sued Rule IX] R^LES OF THE SUPREME COURT 113 out or allowed. And in no case shall the plaintiff in error or appellant be entitled to docket the case and file the record after the same shall have been docketed and dismissed under this rule, unless by order of the court. 2. But the defendant in error or appellee may, at his option, docket the case and file a copy of Defendant may docket . TIP!.' *^® *^^^^ ^^^ ^^'^ ''^^^ the record with the clerk of this court; record. and if the case is docketed and a copy of the record filed with the clerk of this court by the plaintiff in error or ap- pellant within the period of time above limited and pre- scribed by this rule, or by the defendant in error or appellee at any time thereafter, the case shall stand for argument. 3. Upon the filing of the transcript of a record brought up by writ of error or appeal, the appear- On filing transcript ap- pearance of counsel of ance of the counsel for the party docket- party docketing entered. ing the case shall be entered. Clause 1 adopted at February Term, 1S21, as original Rule 32, 6 Wheat, vi; pub- lished as Rule 29 in 1 Pet, x and as Rule 30, 1 How. xkx; and, as amended at January Term, 1835, published as Rule 43 in 9 Pet. vii; amended December Term, 1853, 16 Hfyw. is. Became Clause 1 of Rule 9 in the revision of 1858, 21 Haw. vii; published 108 U. ^. 577; amended Jan. 26, 1891, 137 U. S. 710. Clause 2 adopted as part of Clause 1 of general Rule 43, January Term, 1835, 9 Pet. vii. Became Clause 2 of Rule 3, December Term, 1853, 16 How. ix; published in 21 How. viii and 108 U. S. 578; amended Jan. 26, 1891, 137 U. S. 710. Clause 3 adopted February Term, 1803, as Rule 16, 1 Cranch, xviU; published 1 Wheat, xvi; 1 Pet. vii; 1 How. xxvi; omitted from the revision in 1858; adopted as Rule 31, December Term, 1867, 6 Wall. v. Became Clause 3 of Rule 9 in the revi- sion of 1871 and so published in 108 U. S. 578. Promulgated Deo. 22, 1911. 222 U. S. Note. The precipe for entry of appearance must be signed by a member of the bar of the*Supreme-Court. Individual and not firm names must be signed. The same practice obtains in signing motions and briefs. Decisions The court wiE not dispense with the certificate of the clerk required by Rule 9 and dismiss an appeal upon the record lodged by the plaintiff in error or appellant. Macomb v. Armstead, 10 Pet. 407, 9 L. ed. 473, Jan. T., 1836; West v. Brashear, 12 Pet. 101, 9 L. ed. 1016, Jan. T., 1838. The production of the original writ of error and citation without the certificate of the clerk is a substantial compliance with the Rule. Amos V. Pearle, 15 Pet. 211-212, 10 L. ed. 714, Jan. T., 1841. Where the certificate produced stated only the term of the court at which the judgment was rendered, Held, not in compliance with the 114 RULES OF THE SUPREME COURT [Rule IX old rule which required the certificate to show that the judgment was rendered thirty days before the commencement of the term of the Supreme Court. Rhodes v. Steamship, 10 How. 144-145, 13 L. ed. 363, Dec. T., 1850. A case cannot be docketed and dismissed by the defendant in error unless the plaintiff in error be in default. Hartshorn v. Day, 18 Hem. 28-29, 15 L. ed. 272, Dec. T., 1856. A motion to dismiss under Rule 9 will not be entertained where the writ and citation with the record are returned and filed and the cause docketed before the motion to dismiss. Sparrow v. Strong, 3 Wall. 97-103, 18 L. ed. 49, Dec. T., 1865. Where the motion to dismiss and the motion to docket are made at the same time, the motion to docket will be allowed and the motion to dismiss denied. Owings v. Tieman, 10 Pet. 24, 9 L. ed. 333, Jan. T., 1836. Rule 9 presupposes that the writ of error is returnable on the day prescribed by law (formerly on the first day of the Term) and that plaintiff should then file the transcript. Insurance Co. v. Mordacai, 21 How. 195-201, 16 L. ed. 95. Held in 1858 plaintiff in error might return the writ of error with the transcript at any time during the term to the first day of which the writ was returnable by the then existing rules, unless meantime the case had been docketed and dismissed, when it could not afterwards be filed without the special order of the Supreme Court. This permission being grantable upon the principle that the term may be considered as one day. 76. Where a return to the writ of error is duly made and the transcript deposited in the clerk's office in time, the jurisdiction of the court is kept aUve and the docketing of the cause after that is mere procedure. If unreasonably delayed the parties may, in the discretion of the court, be subjected to the consequences of the failure to prosecute a suit. Where the transcript has been filed in time and motion to dismiss is delayed until a new writ would be barred by lapse of time, leave may be given to docket the cause after the term. Edwards v. United States, 102 U. S. 575-577, 26 L. ed. 294, Oct. T., 1880. The writ of error on appeal becomes inoperative only when the transcript is not filed in time. lb. Where the appellant having seasonably procured the allowance of the appeal, is prevented from procuring the transcript by the fraud of the other party, or the order of the court or the contumacy of the clerk, and is without laches in his effort to procure the appeal, the Rule IX] RULES OF THE SUPREME COURT 115 rule requiring the transcript to be filed and the case docketed at the term next succeeding the appeal will not be enforced. United States V. Gomez, 3 Wall. 752-763, 18 L. ed. 216, Dec. T., 186S. The rules again announced, with the citation of authorities, that the transcript .may be filed during the term succeeding the appeal or taking the writ of error, if not meantime docketed and dismissed on motion of appellee or defendant in error, or if the writ of error or appeal has not lapsed because of the expiration of the term; and that where the appellant is prevented by fraud, the court's order, or the clerk's con- tumacy it may be filed at a later time; also if the transcript is sea- sonably filed, the case may be docketed after the term. Green v. Elbert, 137 V. S. 61&-621, 34 L. ed. 735, Oct. T., 1890. The record cannot be filed after the expiration of the term succeed- ing the taking of an appeal or bringing of a writ of error because the writ of error becomes functus officio, and the appeal has spent its force, but if the record reach the clerk before the succeeding term is closed jurisdiction is kept alive and the court may direct its filing, or if filed by the clerk may treat it as providently done. 76. 621. Held under the rules as they existed at Oct. Term, 1888, that the Supreme Court had no jurisdiction of an appeal unless the transcript of the record was filed in that court at the next term after the taking of the appeal. Hill v. Chicago, etc., R. Co., 129 U. S. 170, 32 L. ed. 653. The practice where the record is not filed in time is for the defendant in error or appellee to produce a certificate from the clerk, or a copy of the record duly certified, showing that the writ of error or appeal has been taken and that it operates as a supersedeas, when the cause will be docketed and dismissed. United States v. Fremont, 18 How. 30- 37, 15 L. ed. 303, Dec. T., 1855. Clause 1 of Rule 9 will be not waived because the clerk of the court below certifies that he cannot, consistently with his other duties, pre- pare the transcript within the time prescribed. Bulkley v. Honold, 18 How. 40-41, 15 L. ed. 262, Dec. T., 1855. A cause dismissed -because the transcript of the record was not lodged in the office of the clerk until after the return term of the appeal and no attempt made to get it on the docket until another term had passed. FayoUe v. Texas Pac. Ry. Co., 124 U. S. 619, 31 L. ed. 534, Oct. T., 1887. Whether the party elects to file the record and try the cause or to obtain a judgment of dismissal, the certificate of the clerk must state the names of the parties to the suit. "James Clark et al," is too un- certain to make it appear that a party not named was a party to the 116 KULES OF THE SUPREME COURT [Rule IX suit and enable the record to show that there had been a judgment of dismissal for or against him. Smith v. Clark, 12 How. 21-22, 13 L. ed. 876, Dec. T., 1851. Where a case has been docketed and dismissed under Clause 1 of Rule 9 (old Rule 43) and the failure to send up the transcript is shown not to be the fault of the plaintiff in error the Supreme Court has power under sec. 14 of the Act of Sept. 24, 1783, to issue a supersedeas to stay all proceedings in the court below pending a new writ of error sued out. The supersedeas order set out in full. Hardeman v. Anderson, 4 Hem. 640-642, 11 L. ed. 1139, Jan. T., 1846. A Judgment of dismissal is a judgment nisi and may be stricken out at any time during the term upon motion, unless it appears that the reinstatement works an injustice to the opposite party. Gwin V. Breedlove, 15 Pet. 284r-285, 10 L. ed. 740, Jan. T., 1841; Bank v. Swan, 3 Pet. 68, 7 L. ed. 605, Jan. T., 1830. When the motion to dismiss is for want of jurisdiction to entertain the writ of error or appeal, or in other words want of authority of the court below to allow either, the record will be ordered to be printed, briefs filed and the question argued in the usual way. Ih., dissenting opinion Mr. Justice Catron, p. 37. The order on a motion to dismiss for want of prosecution dismisses the appeal and allows a second; on a motion to dismiss for want of jurisdiction, the dismissal bars another appeal. Ih. 37. The Act of 1789, sec. 22, required that the writ of error should be made returnable on a certain day therein named, Held the transcript of the record must be filed at the term next succeeding the issuing of the writ or taking the appeal, in order to bring the case within the jurisdiction of the Supreme Court. Failure to conform to these re- quirements is not waived by a general appearance. Carroll v. Dorsey, 20 How. 204-207, 15 L. ed. 804, Dec. T., 1857. A general appearance cures any defect in the citation, it being process required for a party's benefit which he may therefore waive. Ih. 207. A general appearance by defendant makes his position just what it would have been if he had been brought regularly into court by service of process, and all defects in acquiring jurisdiction over his person are thus cured. Atkins v. Fiber Co., 18 Wall. 272-298, 21 L. ed. 843, Oct. T., 1873. A citation is merely notice to a party, and his appearance in person or by attorney is an admission of the notice on the record which he cannot afterwards withdraw. Such appearance does not preclude the party from moving to dismiss for any suflicient ground except want Rule IX] RULES OF THE SUPREME COURT 117 of citation. United States v. Yates, 6 How. 605-608, 12 L. ed. 576, Jan. T., 1848. Where the plaintiff in error was a member of the bar of the Supreme Court and notified the clerk in transmitting the transcript that the case was one of his own. Held, that his appearance was thereby authorized to be entered when the record was filed, or when the cause was docketed. Green v. Elbert, 137 U. S. 615-622, 34 L. ed. 795, Oct. T., 1890. Where there is no appearance for plaintiff in error, the defendant may have the plaintiff called, and dismiss the writ of error; or may open the record and pray for an afiBrmance. Montalet v. Murray, 3 Cranch, 249, 2 L. ed. 429, Feb. T., 1806. This statement of the practice became Rule 16. See 3 Pet. xvii. A motion for a rule on the plaintiff in error to file the record before a prescribed day under penalty of dismissal, is not the proper procedure. Boyd V. Scott, 11 How. 292-293, 13 L. ed. 701, Dec. T., 1850. A motion in the Supreme Court to require the fiMng of a new bond made after the entry of the case on the docket of that court will be deemed a waiver of objection that the appeal was not docketed in time. Waldron v. Waldron, 156 U. S. 361-378, 39 L. ed. 458, Oct. T., 1894. Counsel who enter their appearance under Rule 9 will be held re- sponsible for all that such entry implies until reUeved by substitution of counsel or otherwise. Alvord v. United States, 99 U. S. 593, 25 L. ed. 399, Oct. T., 1878. Paragraph 3, Rule 9, was adopted to make some attorney of the court responsible for the due prosecution of every suit. Notice to counsel is ordinarily equivalent to notice to the parties themselves. Hurley v. Jones, 97 U. S. 318-319, 24 L. ed. 1009, Oct. T., 1878. The right of an attorney at law to represent his cUent must exist, but it is not indispensable to produce the evidence of such right. The appearance of a qualified attorney is presumptive evidence of his author- ity, and no additional evidence has ever been required, whether such appearance is for an individual or a corporation. Osborne v. The Bank, 9 Wheat. 738-830, 6 L. ed. 226, Feb. T., 1824. Cross-appeals must be prosecuted like other appeals, otherwise the party will be heard only in support of the decree as it was entered below. The S. S. Osborne, 105 U. S. 451, 26 L. ed. 1066, Oct. T., 1881. A motion to docket and dismiss a cause when granted for failure of the appellant to file the record within the time required by the rule 118 RtfLES OF THE SUPREME COURT [Rule X is not an affirmance of the judgment of the court below. It remands the case to the court to have proceedings to carry that judgment into effect. United States v. Gomez, 23 How. 326-340, 16 L. ed. 556, Dec. T., 1859. Cases dismissed under Rule 9 are governed by the rule and raise no question of jurisdiction. Mussina v. Cavazos, 6 Wall. 355-361, 18 L. ed. 812, Dec. T., 1867. After a cause has been docketed and dismissed it cannot be again docketed without a new appeal, unless by order of the court. Rogers V. Law, 21 How. 526-527, 16 L. ed. 208, Dec. T., 1858. Rule X — Printing Records 1. In all cases the plaintiff in error or appellant, on docket- Cash deposit or security ing a case and filing the record, shall for clerk's coats to be ° . . , , , , , , given. make such cash deposit with the clerk for the payment of his fees as he may require or otherwise satisfy him in that behalf. 2. The clerk shall cause an estimate to be made of the cost of printing the record, and of his fee for preparing it for the printer and supervising the printing, and shall notify to the Clerk to estimate costs party docketing the case the amount of of pnnting record. — , , SL . . Unless paid before case the estimate. If he shall not pay it withm reached it shall be dis- p missed. a reasonable time, and for want of such payment the record shall not have been printed when a case is reached in the regular call of the docket, the case shaU be dismissed. 3. Upon payment of the amount estimated by the clerk, Thirty copies of record thirty copies of the record shall be to be printed. printed. Under his supervision, for the use of the court and of counsel. 4. In cases of appellate jurisdiction the original transcript on file shall be taken by the clerk to the printer. But the Original transcript used clerk shall causc copics to be made for the by printer. printer of such original papers, sent up under Rule 8, sec. 4, as are necessary to be printed; and of the whole record in cases of original jurisdiction. 5. The clerk shall supervise the printing, and see that the Rule X] KULBS OF THE SUPBEME COURT 119 printed copy is properly indexed. He shall distribute the printed copies to the justices and the cierk to fumiah one . . . copy to counsel of each reporter, from time to time, as required, party, and a copy to the counsel for the respective parties. 6. If the actual cost of printing the record, together with the fee of the clerk, shall be less than the amount estimated and paid, the amount of the difference Refund or payment of shall be refunded by the clerk to the *="'^ "'' °^ p'*"""*" party paying it. If the actual cost and clerk's fee shall exceed the estimate, the amount of the excess shall be paid to the clerk before the delivery of a printed copy to either party or his counsel. 7. In case of reversal, affirmance, or dismissal, with «OBts, the amount of the cost of printing the costs, mduding cost of record and of the clerk's fee shall be P;k°*'?lciuded"1ii '^n- taxed against the party against whom '^^' costs are given, and shall be inserted in the body of the mandate or other proper process. 8. Upon the clerk's producing satisfactory evidence, by affidavit or the acknowledgment of the parties or their sureties, of having served a copy of the bill of fees due by them, respectively, in this court, on such parties or their sureties, an attachment shall issue against Attachment may issue such parties or sureties, respectively, to *°^ '=*«'-i''« ""^t^- compel payment of said fees. 9. The plaintiff in error or appellant may, within ninety days after filing the record in this court, file with the clerk a statement of the errors on which he in- ^ . PI Counsel may designate tends to rely, and of the parts of the tiie parts of the record ■^ : , . , » 1 °° which hearing to be record which he thinks necessary for the tad, when such parts onljr will be pnnted. — consideration thereof, with proof of Designation to 'be wUMn ' ^ 90 days after nlmg rec- service of the same on the adverse party, ord.— Clerk's fees com- "^ " puted on record as filed. The adverse party, within ninety days thereafter, may designate in writing, filed with the clerk, additional parts of the record which he thinks material; and, if he shall not do so, he shall be held to have con- sented to a hearing on the parts designated by the plain- tiff in error or appellant. If parts of the record shall be so designated by one or both of the parties, the clerk shall 120 BULES OF THE SUPREME COURT [Rule X print those parts only; and the court will consider nothing but those parts of the record, and the errors so stated. If at the hearing it shall appear that any material part of the record has not been printed, the writ of error or appeal may be dismissed, or such other order made as the circumstances may appear to the court to require. If the defendant in error or appellee shall have caused unnecessary parts of the record to be printed, such order as to costs may be made as the court shall think proper. The fees of the clerk under Rule 24, sec. 7, shall be com- puted, as at present, on the folios in the record as filed, and shall be in full for the performance of his duties in the execu- tion hereof. See Rule 24. Clause 1 adopted February Term, 1808; published as Rule 20, 1 Wheat, xvii and 1 Pet. viii and as Clause 1 of Rule 21 in 1 How. xxvii. Became Clause 1 of Rule 31, promulgated January Term, 1831, Mr. Justice Baldwin dissenting at length. See 5 Pet. 724 et seq. Became Clause 1 of Rule 10 in the revision of 1S5S, 21 How. viii; amended May 8, 1876, 91 U. S. vii; published in 108 U. S. 578. Amended October Term, 1911. Clause 2 adopted Jan. 7, 1884, 108 U. S. 579. Formerly the cost of printing the record was paid by the Government. See Clause 2 of Rule 37 of rules as they ex- isted from 1790 to 1852, ante, page 13. See former Rule 10, page 29. Clauses 3, 4, 5, and 6. The reasons moving the court to adopt these clauses are given by Mr. Chief Justice Waite at the October Term, 1882, 108 U. S. 1-4, where the- former practice is stated. Clause 6 amended May 8, 1876, 93 U. S. vii. Clauses 3, 4, 5 and 7 appear as Clauses 2, 3, 4, 5, and 6 of Rule 10 in the revision of 1858, 21 How. ix. Clause 2 amended Nov. 1, 1875, 91 U. S. vii. Clause 4 amended Nov. 27, 1876, 93 U. S. vii. Clause 6 adopted Jan. 7, 1884; published in 108 U. S. 579. Clause 8 adopted as Clause 2 of an unnumbered rule, February Term, 1808, 4 Cranch, 527; published 1 Wheat, xvii and xviii and 1 Pet. viii; also as Clause 2 of Rule 21 in 1 How. xxvii. Became Clause 7 of Rule 10 in the revision of 1858, 2 How. ix; published as above 108 U. S. 579. Clause 9 promulgated Mar. 28, 1887, 120 U. S. 785, 30 L. ed. 1257. Promulgated December 22, 1911. 222 U. S. Note. Before a case can be docketed, the clerk must receive the transcript of the record, a deposit of S25.00 on account of costs, and an order for the entry of appear- ance for plaintiff in error or appellant, as the case may be, signed by counsel, a member of the bar of the Supreme Court. The balance of the estimated costs in a case must be deposited when the record is reached in order for printing, usually several months after the case is docketed. Decisions Every appellant to entitle him to be heard must appear as an actor in his own behalf by having appearance of counsel entered and giving the security required by Rule 10, even though his adversary has dock- eted the case. The S. S. Osborne, 105 U. S. 451, 26 L. ed. 1066, Oct. T., 1881. RuleX] RULES OF THE SUPREME COURT 121 Held: the clerk might refuse to docket a cause if the undertaking re- quired by the rule was not filed. Owings v. Tiernan, 10 Pet. 447-448, 9 L. ed. 490, Jan. T., 1836. Though counsel for both parties unite in the request, a cause wiU not be docketed nunc pro tunc where failure to docket arises from non- compliance with Clause 1 of Rule 10. Van Rensselaer v. Watts, 7 How. 784r-785, 12 L. ed. 913, Jan. T., 1849. The practice prior to October Term, 1876, was for the clerk to charge each party one-half the fees of the manuscript copy furnished the printer. Osborn v. United States, 23 L. ed. 872. Clause 7, then the 4th Clause of Rule 10, amended to read, "In each case fees shall be charged in the taxable costs for but one manuscript copy of the record, and that shall be to the party bringing the cause into court, unless the court shall otherwise direct." ' Each party pays the clerk his fees for services in his behalf, in theory, as the serviec is rendered. If afterwards costs are adjudged to him, he recovers from his adversary what he has thus paid, or is liable for if not paid. 76. Where the judgment rendered on appeal is silent as to costs neither party recovers costs, but must pay whatever is properly chargeable to him according to law and the practice. lb. Note. This case appears only in the Lawyers' Edition. Under Clause 1 of Rule 10 before revision at Oct. Term, 1911, the practice had been to deposit the sum of $25.00 in lieu of a fee bond, and subsequently to advance the costs of printing the record and the fee for its preparation. The clerk's fee for printing the record is to be paid in the first in- stance by the party who prosecutes the cause. If he fails to make the pajonent in time to enable the clerk to print the record within the time required in the due prosecution of the cause, the writ of error will be dismissed unless sufficient excuse be shown. Steever v. Rickeman, 109 U. S. 74, 27 L. ed, 861, Oct. T., 1883. Fees of the clerk should be paid in advance. 75. 74. Where the appellants themselves furnished the printed copies of the record the coiirt allowed the cause to be docketed, but, as the clerk is responsible for the correctness of the record, required the clerk's fee to be paid. If the clerk performs any part of the service prescribed and named in the table of fees (Clause 7, Rule 24), he is entitled to collect the whole fee. Bean v. Patterson, 110 U. S. 401-402, 28 L. ed. 191, Oct. T., 1883. I Promulgated Nov. 27, 1876. 122 RULES OF THE SUPREME COURT [Rule X The fee for docketing a case and filing and endorsing the transcript of the record is fixed by Rule 24 at S5.00, and the $25.00 above referred to covered that sum and the estimated costs up to the time for printing. Green v. Elbert, 137 V. S. 615-627, 34 L. ed. 795, Oct. T., 1890. A member of the bar is bound to know the rules and that security should be given or a deposit made with the clerk as a condition prece- dent to the fiUng and docketing of the case. lb. 623. In this case the transcript reached the clerk before the adjournment of the term to which the writ of error was returnable, but was not then filed nor the cause docketed because the security required by Clause 1, Rule 10, was not furnished. The record was not filed until after the adjournment of the term, and was dismissed under Clause 1 of Rule 9, on motion. The appellee cannot use the record filed by appellant to have the cause docketed and dismissed for failure to secure the clerk's fee. The certificate requu-ed by Clause 1 of Rule 9 must be produced. West v. Brashear, 12 Pet. 101, 9 L. ed. 1016, Jan. T., 1838. Each party is Uable to the clerk for his fees for services performed for such party to be enforced by attachment. Caldwell v. Jackson, 7 Cranch, 276-277, 3 L. ed. 342, Feb. T., 1812. Prior to the amendment of Rule 10 by Clause 7, the expense of print- ing the record was no part of the costs of suit to be taxed. lb. 277. Because of the practice of sending the original record to the printer and taxing in the bill of costs a fee for one manuscript copy when no copy was in fact made, to reduce the expense of Utigants without doing injustice to the clerk, the second clause of Rule 1 and Clauses 3, 4, 5 and 6 of Rule 10, as they now are, were adopted. Matter of Amend- ments to Rules 1 and 10, 108 f7. S. 1-4, 27 L. ed. 630, Oct. T., 1882. Where a cause is docketed and dismissed under Rule 9 because of failure of appellant to furnish the undertaking required by Clause 1 of Rule 10, the order of dismissal will not be set aside and leave»given to docket the cause at a subsequent term. Sehna Ry. Co. v. La. N. Bk., 94 U. S. 253-255, 24 L. ed. 33, Oct. T., 1876. Where the failure to furnish the bond required by the rule arises from an oversight, and there has been no motion to docket and dismiss a cause in which the transcript has been filed in time, leave will be given to docket the cause after the term. After a cause has been docketed and dismissed it cannot again be docketed unless by order of the court. Edwards v. United States, 103 U. S. 575-576, 26 L. ed. 293, Oct. T., 1879. The rule that a writ of error or appeal becomes inoperative if the transcript is not filed and the case docketed during the term to which Rules XI, XII] RULES OF THE SUPREME COURT 123 it is made returnable, is applicable only to cases where a return has not been made aiid the transcript has not been filed within the time. lb. 576. Where the transcript was received within the time prescribed by the rules; but not filed and the case docketed because of failure to comply with Clause 1 of Rule 10, but the case was thereafter docketed upon compliance with the rule; Held, there having been no motion to dismiss until after the cause was docketed and entry of appearance of counsel for appellant, the court would retain the cause for review. Kichardson V. Green, 130 V. S. 104, 32 L. ed. 875. The Act of July 22, 1892, 27 Slat. L. 252, ch. 209, allowing prosecution of suits in forma pcmperis has no appUcation to suits in the Supreme Court. GaUaway v. State Natl. Bank, 186 U. S. 177, 46 L. ed. 1111. Rule XI — Translations Whenever any record transmitted to this court upon a writ of error or appeal shall contain any Tramiations to be sent document, paper, testimony, or other pro- Sfanded'^'for inserti™ In ceedings in a foreign language, and the *■>«''='=<"■'*• record does not also contain a translation of such document, paper, testimony, or other proceedings, made under the au- thority of the inferior court, or admitted to be correct, the record shall not be printed; but the case shall be reported to this court by the clerk, and the court will order that a trans- lation be supplied and inserted in the record. Promulgated December Term, 1851, as original Rule 60, 12 How. xl; revised and made Rule 11, December Term, 1858, 21 How. ix, 108 U. S. 580. Promulgated December 22, 1911. 222 U. S. Rule XU—Further Proof 1. In all cases where further proof is ordered by the court, the depositions which may be taken Further proof, when or- ^ dered to be by com- shall be by a commission, to be issued mission. from this court, or from any district court of the United States. 2. In all cases of admiralty and maritime jurisdiction, where new evidence shall be admissible in this court, the evidence by testimony of witnesses shall be taken under a commission to be issued from this court, or from any district 124 RULES OF THE SUPREME COUR* [lElule XU court of the United States, under the direction of any judge In admiralty causes, thcrcof; and uo such commission shall commissioa will issue . . j. • j. u £1 J only on interrogatories, issuc Dut upou interrogatories, to be med by the party applying for the commission, and notice to the opposite party or his agent or attorney, accompanied with a copy of the interrogatories so filed, to file cross-interrogatories within twenty days from the service of such notice: Provided, however. That nothing in this rule shall prevent any party from giving oral testimony in open court in cases where by law it is admissible. Clause 1 adopted February Term, 1816, as Rule 25, 1 Wheat, xix; 1 How. xiviii; pubUshed as Rule 24 in 1 Pe(.ix, and as Clause 1 of Rule 12 in 21 How. ix, and 108 V. S. 580. See Rule 9 of the rules as they existed from 1790 to 1852, ante, page 3. Clause 2 promulgated at February Term, 1817, 2 Wheat, vii, viii; published as Rule 28 in 1 Pet. ix, and as Clause 2 of Rule 12 in 21 How. x, and 108 U. S. 580. Promulgated December 22, 1911. 222 U. S. Decisions Cases in equity are heard upon the proof sent up with the record from the court below. No new evidence can be received. Blease o. Darling- ton, 92 U. S. 1-4, 23 L. ed. 622, Oct. T., 1875. In an equity case evidence can be looked into in the Supreme Court that was not before the trial court, and the evidence certified with the record must there be considered' as the only evidence before the court below. Hohnes v. Trout, 7 Pet. 171-210, 8 L. ed. 661, Jan. T., 1833. In a chancery cause, upon motion made after decree rendered on appeal, to set aside the decree and remand the case to the trial court for further preparation and proof, on the ground that new and material evidence had been discovered since the case was decided in the trial court; Held, the' court must afiSrm or reverse the case as it appears in the record, and cannot receive affidavits of newly discovered evidence nor look out of the record for testimony, nor consider any paper not before the court below, and this by the established chancery practice, as also by the express prohibition of the Act of March 3, 1803 (sec. 698, Rev. Stats., U. S. Comp. Stats. 1901, p. 568). Russell v. Southerd, 12 How. 139-159, 13 L. ed. 935. Where an original paper not referred to in the pleadings or used in the trial, was sent up by the court below on the suggestion of one of the parties and counsel of the opposite party agreed to consider it as re- turned on certiorari, it was taken into consideration by the Supreme Coui't, though the court announced that it was not admissible by the Rule XII] RULES OF THE SUPREME COURT 125 rules of appellate courts, which can act on no evidence that was not before the court below, nor receive any paper that was not used at the hearing. Boone v. Chiles, 10 Pet. 177-208, 9 L. ed. 399, Jan. T., 1836. The court has power to consult public documents even if not made formal proof in the case. United States v. Teschmaker, 22 How. 392- 405, 16 L. ed. 357, Dec. T., 1859. The court ia authorized to consult the records of the Government Departments. The Paquette Habana, 175 U. S. 677-696, 44 L. ed„ 327, Oct. T., 1899. Where a judge of the court below in examining the evidence dis- covered what he deemed a fatal variance by the date in the watermark of an original Spanish document upon which title depended and ap- pellants in the Supreme Court asked for the issuance of a commission to procure testimony to account for the watermark or to permit them to read ex parte evidence to explain it, the court announced that no new evidence could be taken or received without violating established rules. Mitchell v. United States, 9 Pet. 711-731, 9 L. ed. 290, Jan. T., 1835. In an admiralty cause upon affidavits filed that witnesses in the court below had been corrupted, a commission issued to take further testimony in support of and against the affidavits, upon interroga- tories filed, with notice to the opposite party and leave to file cross- interrogatories. Western Metropolis v. Low, 12 Wall. 389, 20 L. ed. 394, Dec. T., 1870. A commission to take testimony under Rule 12 is not allowed as of course. Some ground satisfactory to the court must be shown for failure to examine the witnesses in the court below. The Mabey, 13 Wall. 738, 20 L. ed. 473. Further proof to be taken in the Supreme Court must be taken under a commission. The London Packet, 2 Wheat. 372-373, 4 L. ed. 264, Feb. T., 1817. In a case of original jurisdiction between two States the court re- fused to appoint officers of the court to make examinations, but di- rected that commissions issue by the clerk in the usual form to take testimony upon interrogatories after notice to the opposite party and leave to file cross-interrogatories. The commissioners to be named by the chief justice or an associate justice if not agreed upon. The clerk was ordered to open the commissions when returned and cause the evidence to be printed for the use of the parties. Exceptions to the testimony allowed to be taken at the final hearing. Florida v. Georgia, 17 How. 478-525, 15 L. ed. 203, Dec. T., 1854. 126 RULES OF THE SUPREME COURT [Rule XIlI In cases of original jurisdiction in equity the proof will be taken before a commissioner. Directions for taking the proof should be embodied in the order of appointment. Pennsylvania w. Bridge Co., 9 How. 647-657, 13 L. ed. 298, Jan. T., 1850. Rule XIII — Objections to Evidence in the Record In all cases of equity or admiralty jurisdiction, heard in In equity and admiralty this court, no objcction shall hereafter be dencc not entered of allowed to be taken to the admissibility of record in court below , . , , , not considered. any deposition, deeci, grant, or other exhibit found in the record as evidence, unless objection was taken thereto in the court below and entered of record; but the same shall otherwise be deemed to have been admitted by consent. Promulgated February Term, 1824, as Clause 2 of an unnumbered n-le, 9 Wheat. iv; published as Rule 32 in 1 Pet. x; made Rule 13 in the revision at the December Term, 1858, 21 How. %; 108 V. S. 580. Promulgated December 22, 1911. 222 U. S. Decisions The Supreme Court will not listen to an objection that a deposition was taken after the cause was set down and without any order of the court, where no objection appears to have been made in the court below. Bank v. Seton, 1 Pet. 299-307, 7 L. ed. 156, Jan. T., 1828. Where the defendant cross-examines a witness whose deposition is irregularly taken, it is a waiver of the irregularity. Ih. 307. Although objection is made in the appellate court that there is a fatal variance between the facts found and the case made by the plaintiff, where none of the evidence is objected to in the court below and no exception taken to the court's announced findings, or subseguently when judgment was entered, objections cannot be presented for the first time in the Supreme Court. Railway Co. v. Lindsay, 4 Wall. 650-656, 18 L. ed. 330, Dec. T., 1866. No point arising on the pleadings or evidence in an appellate court may be made which was not brought to the notice of the inferior court. Where an issue at law was directed by a court of chancery, and upon the trial exceptions were taken to the rulings of the court but these objections to the verdict were not brought before the judges sitting as a court of chancery because the same judges sat in the court of law, Held, the exceptions could not be insisted upon in the Supreme Court. Brockett v. Brockett, 3 How. 691-692, 11 L. ed. 787, Jan. T., 1845. The findings of a master to which no exceptions were filed, is as Rule XIV] RULES OF THE SUPREME COURT 127 conclusive in the appellate court as in the court below. Canal Co. v. Gordon, 6 Wall. 561-569, 18 L. ed. 895, Dec. T., 1867. Where a referee finds facts inferentially and not directly, the defect in form of the report should be called to the attention of the court below for a more definite finding. It cannot be considered in the ap- pellate court for the first time. Lumber Co. v. Butchel, 101 U. S. 633- 637, 25 L. ed. 1073, Oct. T.,, 1879. Evidence which has been admitted without any objection and forms part of the record cannot be disregarded because the subject-matter of that evidence was not averred in the pleadings. Where it is found in the record, without objection taken in the court below, the appellate court should examine and give effect to all the evidence in the record. Dissenting opinion of Mr. Justice Baldwin in Harrison v. Nixon, 9 Pet. 483-537, 9 L. ed. 221, Jan. T., 1835. In a suit at law, held in examining the admissibility of evidence a party will be confined, as a general rule, to the specific objection taken to it in the court below. Hinde v. Longworth, 11 Wheat. 199-209, 6 L. ed. 456, Feb. T., 1826. Where in a trial of a suit at law the objection to the admission of a deed is that it bears upon its face evidence of fraud but pointing out no specific vice, the objection is too vague to sustain inquiry into the action of the court below. Thomas v. Lawson, 21 How. 331-338, 16 L. ed. 84, Dec. T., 1858. If error is predicated upon any ruling of the lower court, that ruling should affirmatively and distinctly appear. San Pedro, etc., Co. v. United States, 146 U. S. 120-136, 36 L. ed. 916, Oct. T., 1892. Where the trial is by the court without a jury, a stipulation of counsel as to the evidence bearing on a finding, will not be noticed. Ft. Worth C. Co. V. Smith Bridge Co., 151 U. S. 294-300, 38 L. ed. 169, Oct. T., 1893. Where a deposition is not made a part of and is not in the record, the appellate court cannot consider whether its exclusion is prejudicial. Whitney v. Fox, 166 U. S. 637-645, 41 L. ed. 1148, Oct. T., 1896. Rule XIY^Jertiorari No certiorari for diminution of the record will be hereafter awarded in any case, unless a motion therefor shall be made in writing, and the facts on which the Motions for certiorari same is founded shall, if not admitted by record''Z>st'°be at Ihl the other party, be verified by affidavit. ^rrifildrseTtU" o'S*'"^ And all motions for certiorari must be '*°*°" made at the first term of the entry of the case; otherwise, tlie 128 RULES OF THE SUPREME COURT [Rule XIV same will not be granted, unless upon special cause shown to the court, accoimting satisfactorily for the delay. Promulgated January Term, 1824, as Clause 1 of a rule without number, 9 Wheat. iv; published as Rule 31, 1 Pet. x; made Rule 14 in the revision at the December Term, 1858, 21 How. x; 108 U. S. 581. Promulgated December 22, 1911. 222 U. S. Decisions A motion for certiorari for diminution of the record will be denied when not made at the first term, and no satisfactory excuse for the delay is shown. Chappell v. United States, 160 U. S. 499-606, 40 L. ed. 612. Where the transcript is imperfect by the omission of a paper materiaJ to a decision, which was used in the court below, and the defendant in error is not represented by counsel, the court of its own motion may direct a certiorari to issue to supply the omission. Morgan v. Curtenius, 19 How. 8, 16 L. ed. 576, Deo. T., 1866. Where the point was made in the defendant's brief that no judgment was in the record, but no motion to dismiss the writ of error before the hearing had been made, the court inspected the record and, no judgment being found, of its own motion gave the plaintiffs time to perfect the record by certiorari. Sweeney v. Lomme, 22 Wall. 208- 215, 22 L. ed. 729, Oct. T., 1874. Where the certificate to the transcript is made as authorized, but the record is incomplete, the dissatisfied party should ask for a certiorari, which is readily granted when applied for in season. United States ». Gomez, 1 Wall. 690-702, 17 L. ed. 680, Dec. T., 1863. Where the clerk certifies the transcript to be a full and perfect copy of the proceedings, if the certificate is not true, the remedy js by cer- tiorari to supply the deficiencies. Missouri, K. & T. Ry. Co. v. Dins- more, 108 U. S. 30-31, 27 L. ed. 640, Oct. T., 1882. Though an equity case was disposed of on demurrer, in the comt beldw, and the evidence on file was not necessary for hearing the ap- peal, where the .record had not been printed in full, and the parties disagreed as to what it contained, certiorari to bring up the evidence was allowed. 76. 31. * For a certiorari to issue it must appear from the record that the evidence was used or offered in the court below. Holmes v. Trout, 7 Pet. 171-210, 8 L. ed. 661, Jan. T., 1833. Where a bill of exceptions states that judgment was entered yet the record does not contain the judgment itself, the plaintiff in error Rule XIV] RULES OF THE SUPREME COURT 129 may apply for a certiorari to bring up a, perfect record, or dismiss and proceed anew. Elmore v. Grimes, 1 Pet. 469-472, 7 L. ed. 236, Jan. T., 1828. ' Where the clerk had made an error in not entering the judgment according to the declaration upon application for a certiorari to' amend the record, the amendment was allowed in the Supreme Court in a cause brought up to a previous term. Woodward v. Brown, 13 Pet. 1-2, 10 L. ed. 31, Jan. T., 1839. A certiorari is not the proper remedy for the failure of the clerk to append to the transcript his certificate that it contains the full record. The transcript may be permitted to be withdrawn to enable the clerk to supply the necessary certificate. Hodges v. Vaughan, 19 WaW. 12-13, 22 L. ed. 46, Oct. T., 1873. If the record as certified is incorrect, errors or omissions must be sug- gested and a certiorari moved for (at the first term). No evidence dehors the record can be received to impeach the record. This on a motion to dismiss as well as on hearing. Hudgins v. Kemp, 18 How. 530, 15 L. ed. 612. Clerical errors in the record may be amended, and other amendments may be made by consent. Clerical errors should be corrected by the clerk's certificate. lb. The record as it stands when the motion is heard, or cause heard, presents the case the coiurt is called on to decide; nothing outside of it can be introduced to affect the decision. lb. Certiorari is not the proper mode of completing the findings, being the conclusions deduced from the evidence upon which a decree of the Court of Claims is founded. That court on motion, duly made, may be required by order to make return as to such facts. United States v. Adams, 9 Wall. 661-663, 19 L. ed. 808, Dec. T., 1869. A certiorari will be awarded upon the suggestion that a citation has been served but not transmitted with the record. Field v. Milton, 3 Cranch, 514, 2 L. ed. 516, Feb. T., 1806. Certiorari will not be awarded to a Circuit (District) Court to certify special findings of fact required by the Act of Feb. 16, 1875, where omission to make such findings is attributable to the fault of the parties and not to the court. The S. S. Osborne, 104 U. S. 183-184, 26 L. ed. 693, Oct. T., 1881. The court will award a certiorari on suggestion of diminution even at the third term after the appeal is filed and docketed if the delay be accounted for, but the hearing will not be postponed. Clark v. 9 130 RULES OF THE SUPREME COURT [Rule XIV Hackett, 1 Black. 77-78, Dec. T., 1861. See Been v. Heath, 35 L. ed. 1174, unreported practice cases. After a judgment has been rendered by the Supreme Court it is too late to say that the statement of facts contained in the bill of excep- tions is erroneous, and to seek to amend the bill of exceptions by cer- tiorari, on the ground that material evidence has been omitted. Any error or mistake resulting from the adoption by the court of a bill of exceptions presented by the opposite party, may be corrected by certiorari if the application is made in due time. Gayler v. Wilder, 10 How. 609-510, 13 L. ed. 518, Dec. T., 1850. In no case can an exception taken as certified by the judge of the court below be altered or amended, but if by a clerical error there is an omission of a part of a charge which was in fact embraced in the exception, upon producing a copy of the exception properly certified, the plaintiff in error will be entitled to a certiorari to supply the defect. Stimpson v. Raih-oad Co., 3 How. 553-556, 11 L. ed. 724, Jan. T., 1845. Upon a writ of error on a judgment on a forthcoming bond where the original judgment had been reversed in the Supreme Court, as the proceedings in the original suit formed no part of the subsequent suit, the court framed a special writ of certiorari to bring up the execution recited in the bond. Barton v. Petit and Bayard, 7 Cranch, 288-290, 3 L. ed. 348, Feb. T., 1813. Where the judgment of an inferior State court is final to which the writ of error is directed, a certiorari does not lie to bring up the rulings of the Supreme Court of the State on exceptions certified to it in the same cause. McGuire v. The Commonwealth, 3 Wall. 382-386, 18 L. ed. 165, Dec. T., 1865. Where a certiorari is granted the court will not take any action on the merits until a return of the writ. Ex parte Dugan, 2 WaU. 134, 17 L. ed. 871, Dec. T., 1864. The return is properly made by the clerk of the court below. Stewart V. Ingle, 9 Wheat. 626, 6 L. ed. 151, Feb. T., 1824. Where the record sent up from the District Court fails to disclose that the cause has been passed upon by the Circuit Court of Appeals, but the Supreme Court is apprised that the action of the District Court is in accordance with a mandate of the appellate court the Supreme Court wiU direct the court below to supply the deficiency, if any, in the record by certifying aU the proceedings had in the case. Union Trust Co. v. Westhus, 228 U. S. 519-621. The writ of certiorari cannot be used to bring up a new record of new proceedings had since the final judgment in the court below. United States v. Young, 94 U. S. 258-259, 24 L. ed. 153, Oct. T., 1876. Rule XV] iRULES OF THE SUPREME COURT 131 It ia (was) employed in the Supreme Court only as an auxiliary process to enable the court to obtain further information in respect to some matter already before it for adjudication. 76. 260. The certiorari mentioned in sec. 6 of the Act of Mar. 3, 1891, is the equivalent to an appeal or writ of error, and is issued at the discretion of the Supreme Court. The auxiliary wi-it of certiorari to perfect the record does not operate to bring up for review a case, or add any force to an appeal. Huguley Mfg. Co. v. Galeton Mills, 184 U. S. 290-20G, 46 L. ed. 549, Oct. T., 1901. Rule XV — Death of a Party 1. Whenever, pending a writ of error or appeal in this court, either party shall die, the proper representatives in the personalty or realty of the deceased party, according to the nature of the case, may voluntarily i^ ^mts abated by death; come in and be admitted parties to the htm^r^aZ^ll suit, and thereupon the case shall be ^l^afof'^hnJIuTlts heard and determined as in other cases; '^™™=''- and if such representatives shall not voluntarily become par- ties, then the other party may suggest the death on the record, and thereupon, on motion, obtain an order that imless such representatives shall become parties within the first ten days of the ensuing term, the party moving for such order, if de- fendant in error or appellee, shall be entitled to have the writ of error or appeal dismissed; and if the party so moving shall be plaintiff in error or appellant he shall be entitled to open the record, and on hearing have the judgment or decree reversed, if it be erroneous: Provided, however, That a copy of every such order shall be printed in some newspaper of general circulation within the State, Territory, or District from which the case is brought, for three successive weeks, at least sixty days before the beginning of the term of the Supreme Court then next ensuing. 2. When the death of a party is suggested, and the repre- sentatives of the deceased do not appear Without action by either party, after sug- bv the tenth day of the second term next gestion of death, case •^ *' abates by the tenth day succeeding the suggestion, and no meas- of next term. ures are taken by the opposite party within that time to com- pel their appearance, the case shall abate. 132 EULES OF THE SUPREME COURT [Rule XV 3. When either party to a suit in a court of the United States shall desire to prosecute a writ of error or appeal to the Supreme Court of the United States, from any final judgment or decree, rendered in such court, and at the time of Proceedings, when suit suing out such Writ of error or appeal the fow/afto judgment ''o; other party to the suit shall be dead and senSve*?f de^c^aseJ'rel havB no proper representative within the sides in the same State, jurisdiction of the court which rendered such final judgment or decree, so that the suit cannot be re- vived in that court, but shall have a proper representative in some State or Territory of the United States, the party desir- ing such writ of error or appeal may procure the same, and may have proceedings on such judgment or decree superseded or stayed in the same manner as is now allowed by law in other cases, and shall thereupon proceed with such writ of error or appeal as in other cases. And within thirty days after the commencement of the term to which such writ of error or appeal is returnable, the plaintiff in error or appellant shall make a suggestion to the court, supported by afiidavit, that the said party was dead when the writ of error or appeal was taken or sued out, and had no proper representative within the jurisdiction of the court which rendered said judgment or decree, so that the suit could not be revived in that court, and that said party had a proper representative in some State or Territory of the United States, and stating therein the name and character of such representative, and the State or Terri- tory in which such representative resides; and, upon such sug- gestion, he may, on motion, obtain an order that, unless" such representative shall make himself a party within the first ten days of the ensuing term of the court, the plaintiff in error or appellant shall be entitled to open the record, and, on hearing, have the judgment or decree reversed, if the same be erroneous: Provided, however. That a proper citation reciting the substance of such order shall be served upon such representative, either personally or by being left at his residence, at least sixty days before the beginning of the term of the Supreme Court then next ensuing: And pro- vided, also, That in every such case if the representative of the deceased party does not appear by the tenth day of the Rule XV] RULES OF THE SUPREME COURT 133 term next succeeding said suggestion, and the measures above provided to compel the appearance of such representa- tive have not been taken within time as above required, by the opposite party, the case shall abate: And provided, also. That the said representative may at any time before or after said suggestion come in and be made a party to the suit, and thereupon the case shall proceed, and be heard and deter- mined as in other cases. Clause 1 adopted as Rule 31 at the February Term, 1831, 6 Wheat, v, vi; published as Rule 28, 1 Pet, ix. Became Clause 1 of Ri, le 15 in the revision of 1859, 21 How. x; amended Dec. 11, 1879, 100 U. S. ix; revised Jan. 7, 1884, 108 U. S. 581. Clause 2 adopted as Rule 61 at December Term, 1851, 13 How. v. In the revision of 1858 became Clause 2 of Rule 15, 21 How. xi; 108 U. S. 582. Clause 3 promulgated Jan. 12, 1875, 20 Wall, xv; published 108 U. S. 582, amended Oct. Term, 1911. Promulgated December 22, 1911. 222 U. S. Decisions Where after the writ is issued, one of three parties, plaintiffs in a writ of error, dies, it is not necessary to make his heirs and representa- tives parties to the writ as the cause of action survives to the other plaintiffs in error. McKinney v. Carroll, 12 Pet. 66-71, 9 L. ed. 1004, Jan. T., 1838. When a party dies while a cause is under advisement, judgment may be entered nunc pro tunc as of the first day of the term. Clay v. Smith, 3 Pet. 411^12, 7 L. ed. 724, Jan. T., 1830. Where one of two co-defendants dies after the commencement of the term the judgment may be entered against both defendants on a day prior, nunc pro tunc, but if death occurs before the commencement, then upon suggestion of the death being entered of record the cause of action surviving, the judgment may be entered against the surviv- ing defendant. McNutt v. Bland, 2 How. 9-28, 11 L. ed. 166, Jan. T., 1844. Where an opinion of the court had been delivered in favor of the ap- pellants and objection was made to the entry of a decree against the defendant, who had died since the commencement of the term, the court ordered the decree to be entered as of the first day of the term. Bank v. Weisiger, 2 Pet. 481, 7 L. ed. 492, Jan. T., 1829. Where one of the parties has died since the submission of the cause a decree of reversal for further proceedings will be made nunc pro tunc as of the date the cause was submitted. Louisville & Nashville R. Co. V. Behhner, 175 U. S. 648-676, 44 L. ed. 320, Oct. T., 1899. 134 RULES OF THE SUPREME COURT [Rule XV Where the death of a party was suggested at the December Term, 1851, and his legal representatives did not appear by Dec. 10, 1854, the cause was held to have abated under Rule 61, now Rule 15. Barri- beau V. Brant, 17 How. 43-46, 15 L. ed. 35, Dec. T., 1854. The only persons who can be permitted to appear in his stead upon the death of a party, are those who succeed to the interest he then had. An assignee under title acquired prior to the writ of error or appeal cannot thus appear. lb. 46. Where an appellee dies after an appeal is taken, the administrator appointed in the jurisdiction of the decedent's domicil is properly admitted as the appellee to defend the appeal, though appointed in a State other than that wherein the decree was obtained. Noonan v. Bradley, 12 Wall. 121-128, 20 L. ed. 281, Dec. T., 1870. Where the jurisdiction of the court is acquired by the diverse citizen- ship of the original parties, it is not divested by the death of a party and the substitution of his administrator who lacks the necessary diverse citizenship. Clarke v. Mathewson, 12 Pet. 164-171, 9 L. ed. 1044, Jan. T., 1838. One who has conducted a cause in the name of another with his consent may, after his death, use the names of such other's legal repre- sentatives to prosecute an appeal or writ of error. Kellogg v. Forsyth, 24 How. 186-187, 16 L. ed. 655, Dec. T., 1860. Where the defendant pleaded that the plaintiff had assigned the cause of action before suit, upon death of the plaintiff after judgment and before writ of error sued out, the writ of error taken in the name of such deceased plaintiff, for the use of the assignee of the cause of action as the complaint had been amended to allege. Held, to be sufficiently regular to defeat a motion to dismiss. Amadeo v. Northern Assur. Co., 201 U. S. 194r-201, 50 L. ed. 726, Oct. T., 1905. Where pending a writ of error to the Supreme Court, subsequently dismissed, the defendant in error dies, if the plaintiff in error takes out a new writ in the name of the deceased, the practice is irregular. Ap- plication should be made to the court below to revive the suit in the name of the deceased's legal representatives, and then the writ of error can be regularly issued. If the court refuses this application, the wtit may be issued in the name of the representatives of the deceased and citation served on them. McClaine v. Boone, 6 Wall. 244-245, 18 L. ed. 836, Dec. T., 1867. In real actions upon death of the ancestor without having appeared where new parties are made by order of the court as representativoa Rule XVI] RULES OF THE SUPREME COURT 135 of a deceased party, and judgment is rendered against them though by default, they are entitled to sue out a writ of error. Macker v. Thomas, 7 Wheat. 530-632, 5 L. ed. 515, Feb. T., 1822. Before he shall be permitted to prosecute (or defend) the executor must show himself to be executor unless the fact be admitted by the parties, and he may be required to produce his letters testamentary; but if the order for his admission as a party be made, it is too late to contest the fact of his being an executor. Wilson v. Codman's Exec- tor, 3 Cranch, 193-207, 2 L. ed. 413, Feb. T., 1805. If the court unguardedly permits a person to prosecute who has not given satisfactory evidence of his right to do so, it possesses and will employ means of preventing any mischief from its inadvertence. 76. 207. Where the judgment in the court below in an action for personal injuries is against the plaintiff, who dies after the writ of error is sued out, the writ will be dismissed. Gerling v. B. & O. R. R. Co., 150 U. S. 673-703, 38 L. ed. 322, Oct. T., 1893. In no case does a writ of error in personal actions abate by the death of the defendant in error. Green v. Watkins, 6 Wheat. 260-262/ 5 L. ed. 266, Feb. T., 1821. Proceedings in admiralty are in rem, therefore the death of one of the parties to a decree does not abate the suit. Penhallow v. Doane, 3 Dall. 54-86, 1 L. ed. 521, Feb. T., 1795. Suggestion of the death of plaintiff in error made by his counsel at December Term, 1846, and leave given to make his representatives parties, which not being done, the writ of error held to be abated and the cause remanded to "be proceeded in according to law and justice." Phillips V. Preston, 11 How. 294, 13 L. ed. 702, Dee. T., 1850. In a cause of magnitude the court will, in its discretion, grant a continuance on account of the death of counsel. Hunter v. Fairfax, 3 Dall. 306-306, 1 L. ed. 613, Aug. T., 1796. Rule XVI — No Appearance of Plaintiff in Error or Appellant Where no comisel appears and no brief has been filed for the plamtiff in error or appellant, when Case dismissed, if wiien ■*^ 1111-1 called no appearance or the case is called for trial, the defendant brief for plaintiff. in error or appellee may have the plaintiff in error or appel- lant called and the writ of error or appeal dismissed, or may open the record and pray for an affirmance. At the February Term, 1806, Mr. Chief Justice Marshall stated the practice as embodied in this rule, but owing to the omission of the clerk to enter this ir.th the 136 KULES OF THE SUPKEME COURT [Rule XVI other rules it was not published in the reports until 3 Pet. xvii. Published as part of Rule 19 in 1 How. xxvii; made Rule 16 in the revision at the December Term, 1858. 21 How. xi; amended Jan. 7, 1884, 108 U. S. 583. Promulgated December 22, 1911. 222 U. S. Decisions The object of the rule is to embrace a class of cases where there is no appearance when the case is reached in the regular call of the docket. Larman v. Tisdale, 35 L. ed. 1174, unreported practice cases. Dismissal under this rule is with costs. Montalet v. Murray, 3 Cranch, 249, 2 L. ed. 429, Feb. T., 1806. It is not necessary to give notice of intention to enforce Rule 16, and an appeal dismissed thereunder will not be reinstated except for very good reasons. James v. McCormick, 105 U. S. 265, 26 L. ed. 1044, Oct. T., 1881. When a cause is reached in its order and dismissed for want of ap- pearance of appellant as required by Rule 9, Paragraph 3, it will not be reinstated over objection. Hurley v. Jones, 97 U. S. 318-319, 24 L. ed. 1009, Oct. T., 1878. After the withdrawal of the appearance of plaintiff's counsel it is the defendant's right to have the plaintiff called and the suit dis- missed or to open the record and pray an affirmance. McGuire v. Massachusetts, 3 Wall. 382-387, 18 L. ed. 165, Dec. T., 1865. Upon a writ of error to the Supreme Court of a Territory, where there was no appearance and no assignment of error in the Supreme Court, the defendant in error moved to open the record and affirm the judgment. The court examined the record and, finding that the errors assigned in the court below were not well taken, affirmed the judg- ment. MaxweU v. Stewart, 21 Wall. 71-73, 22 L. ed. 565, Oct. T., 1874. The death of the appellee having been suggested, counsel for the executor offered to appear and moved to dismiss the cause. As there was no appearance by the appellants the court directed the cause to be dismissed. Hook v. Linton, 10 Pet. 107, 9 L. ed. 363, Jan. T., 1836. Where an assignment of error is not returned with the writ of error as required by sec. 997, Rev. Stats. (17. S. Comp. Stats. 1901, p. 712), and coimsel for plaintiff in error has been permitted to withdraw his appear- ance, if no substitute has taken his place when the cause is reached on the call of the docket, the judgment wiU be affirmed without openipg the record. Boston H. G. M. Co. v. Eagle Copper S. M. Co., 115 U. S. 221, 29 L. ed. 393, Oct. T., 1885. Rules XVII, XVIII] RULES OF THE SUPREME COURT 137 Rule XVII — No Appearance of Defendant in Error or Appellee Where the defendant in error or appellee fails to appear Argument heard on part when the case is Called for trial, the court ciiie'dr^ven if'drfenS may proceed to hear an argument on the fails to appear. ^^^^^ ^^ ^j^^ plaintiff in error or appellant and to give judgment according to the right of the case. Promulgated Deo. 9, 1801, as Rule 15, 1 Crunch, xviii; published in 1 Wheat, xvi, 1 Pet. vii, and 1 How. xxv; made Rule 17 in the revision at the December Term, 1868, 21 Haw. xi; published in 108 U. S. 583. Promulgated December 22, 1911. 222 U. S. Decisions In general it is of no importance to the appellant whether the ap- pearance of appellee is or is not entered on the record. The refusal or omission of appellee to appear will not delay the trial, and the judg- ment will be as conclusive as if appellee had entered his appearance and his case had been argued by counsel. United States v. Yates, 6 How. 605-608, 12 L. ed. 577, Jan. T., 1848. An improvident appearance of appellee may be withdrawn, but such withdrawal will not authorize a motion to dismiss for want of citation, nor does such appearance cure a want of jurisdiction. lb. 608. An irregularity in the service of citation can only be taken advantage of by motion to dismiss, made promptly on an appearance limited to that special purpose, and is cured by an appearance not hmited to any particular purpose though special in terms. Renaud v. Abbott, 116 U. S. 277-281, 29 L. ed. 630, Oct. T., 1885. The appearance of counsel for the defendant in error upon a cita- tion irregular because signed by the clerk and not by the judge, with- out a motion at the first term to dismiss, is a waiver of any irregularity in the citation, and is an admission of the receipt of notice to appear. Chaffee v. Heywajd, 20 How. 208-209, 15 L. ed. 805, Dec. T-, 1857. Where a State is a party, the court may grant further time for ap- pearance. Oswald ». New York, 2 Doll. 415, 1 L. ed. 438, Feb. T., 1793. Rule XVIII — No Appearance of Either Party When a case is reached in the regular call of the docket, and there is no appearance for either party, the case shall be dismissed at the cost of the plaintiff in error or appellant. Promulgated January Term, 1850, as Rule 54, 8 How. v; amended and became Rule 59 at the December Term, 1851, 12 How. xi; made Rule 18 in the revision at 138 RULES OF THE SUPREME COURT [Rules XIX, XX the December Term, 1858, 21 How. xi; amended Jan. 7, 1884; published in 108 V. S. 583; amended December 22, 1911. 222 U. S. Decisions The rule applied. Radford v. Craig, 5 Cranch, 289, 3 L. ed. 104, Feb. T., 1809. The original general Rule 54, requiring an appearance to be entered on or before the second day of the term next succeeding that at whieh the case is docketed, applied to cases docketed at the regular term and not to an adjourned term. Lowman v. Tisdale's Heirs, 11 How. 586, 13 L. ed. 824, Dec. T., 1850. Rule XIX — Neither Party ready at Second Term When a case is called for argument at two successive terms, Cases called at two sue- and uDon the Call at the second term cessive terms, when dis- * ™8sed. neither party is prepared to argue it, it shall be dismissed at the cost of the plaintiff in error or ap- pellant, unless sufficient cause is shown for further post- ponement. Promulgated December Term, 1849, as original Rule 55, 8 How. vi; made Rule 19 in the revision at the December Term, 1858, 21 How. xii; published in 108 V. 8. 583; amended December 22, 1911. 222 V. S. Rule XX — Printed Arguments 1. In all cases brought here on writ of error, appeal, or Cases may be submitted otherwise, the court will receive printed ™t a"° ment''"*'^ '"*' ^^guments without regard to the num- ber of the case on the docket, if the counsel on both sides shall choose to submit the same within the first ninety days of the term; and, in addition, appeals from the Court of Claims may be submitted by both parties within thirty days after they are docketed, but not after the first day of April; but thirty copies of the arguments, signed by attorneys or counsellors of this court, must be first filed. 2. When a case is reached in the regular call of the docket, Filing a brief equivalent and a printed argument shall be filed for to appearance. i ji ,. . ■, . ,, one or both parties, the case shall stand on the same footing as if there were an appearance by counsel. Rule XX] KULES OF THE SUPREME COURT 139 3. When a case is taken up for trial upon the regular call of the docket, and argued orally in behalf Briefs must be filed be- - , . , , , . . , ioie case orally argued 01 only one oi the parties, no printed by the other party. argument for the opposite party will be received, unless it is filed before the oral argument begins, and the court will pro- ceed to consider and decide the case upon the ex parte ar- gument. 4. No brief or argument will be received, either through the clerk or otherwise, after a case has After argument briefs filed only by leave in open court been argued or submitted, except upon on notice. leave granted in open court after notice to opposing counsel. Clause 1 adopted at the January Term, 1833, as general Rule 40, 7 Pet. iv; pub- lished 1 How. XXXV. See Rule 49 of the rules from 1790 to 1852, ante, page IS, and 1 How. xxxviii. At the January Term, 1845, a new rule was adopted that no printed argu- ment be received unless signed by an attorney or counsellor of the Supreme Court, and an amendment to Rule 40, allowing the filing of arguments until the first Mon- day in February, while the court continued to meet on the first Monday in December. Rule 49, adopted at the January Term, 1842, was rescinded, 3 How. vi. In the re- vision of December Term, 1858, became Clause 1 of Rule 20; amended Mar. 10, 1865, 2 W(Ul. viii; again amended at the December Term, 1865, 3 Wall, viii, ^nd again amended at the October Term, 1874, 21 Wall, v; published in 108 U. S. 584; amended October Term, 1911. Clause 2 adopted at the January Term, 1837, as Rule 44, 11 Pet. vii; 1 How. xxxvi. Became Clause 2 of Rule 20 in the revision of December Term, 1858, 21 How. xii; pubUshed in 108 U. S. 584. Clause 3 promulgated as Rule 58 at the December Term, 1850, 10 Hoxv. v, and be- came Clause 3 of Rule 20 in the revision of 1859, 21 How. xii; published in 108 U. S. 584. Clause 4 promulgated Dec. 14, 1874, 20 Wall, xvi; published 108 17. S. 584. Promulgated December 22, 1911. 222 U. S. Decisions Parties will not be allowed to withdraw a stipulation to submit and set the cause down for oral argument, without a sufficient show- ing. Wright ». Nagle, 101 U. S. 791-793, 25 L. ed. 922, Oct. T., 1879. Stipulation between counsel relative to the course of proceeding in a cause cannot be withdrawn by one party without the consent of the other, except by leave of the court upon cause shown. AppUcation for the vacation of a stipulation to submit under Rule 20 should be made before the expiration of the time limited in the agreement. Muller V. Downs, 94 U. S. 277-278, 24 L. ed. 77, Oct. T., 1876. When no reference is made to Rule 20, but the stipulation binds the parties to submit the cause and there is nothing which requires this to be done at any particular time, its terms are fulfilled if the submission is made when the case is reached in its order. Glenn v. Fant, 124 U. S. 123-124, 31 L. ed. 352, Oct. T., 1887. 140 RULES OF THE SUPREME COURT [Rule XXI Where counsel have submitted a case under Rule 20, if the plaintiff in error fails to file his argument within the time limited the court will take up the case as submitted. Aurrecoechea w. Bangs, 110 V. S. 217-218, 28 L. ed.l26, Oct. T., 1883. Note. Plaintifl in error was afterward allowed to be heard upon pay- ment of costs .of the term and of printing the record within the time limited. In a cause submitted under Rule 20 and dismissed siia sponte for failure of plaintiff in error to show a jurisdictional amount, either by the record or by affidavit, the court refused to reinstate the cause upon motion with affidavits, filed more than two years after the order of dismissal. Where parties fail to act promptly after they have actual notice of what is required, they will not be heard. Johnson v. Wilkins, 118 U. S. 228-229, 30 L. ed. 210, Oct. T., 1885. The court will not receive or examine a printed argument not pre- sented in court and shown to the opposite counsel. Mitchell v. United States, 8 Pet. 307, 8 L. ed. 955, Jan. T., 1834. Where a cause is submitted on printed argument the court usually examines the record to see whether it has jurisdiction, whether the question is raised by counsel or not. Bartem^er v. Iowa, 14 Wall. 26, 20 L. ed. 792, Dec. T., 1871. A brief of counsel containing impertinent and scandalous matter, unfit to be submitted to the court, will be stricken from the files. Green V. Elbert, 137 U. S. 615-624,' 34 L. ed. 796, Oct. T., 1890. Rule 'KXl— Briefs 1. The counsel for plaintiff in error or appellant shall file m^.-^ ■ t I ■ *■«. ■with the clerk of the court, at least three Thirty copies of plamtirf s ' brief to be filed three wecks before the case is called for arcu- weeka before case called. , ° ment, thirty copies of a printed brief, one of which shall, on application, be furnished to each of the counsel engaged upon the opposite side. 2. This brief shall contain, in the order here stated — (1) A concise abstract, or statement of the case, presenting succinctly the questions involved and the manner in which they are raised. (2) A specification of the errors relied upon, which, in cases What piaintitr'B brief to brought up by Writ of error, shall set out ™° "■ separately and particularly each error asserted and intended to be urged; and in cases brought Rule XXI] RULES OF THE StTPREME COURT 141 up by appeal the specification shall state, as particularly as may be, in what the decree is alleged to be erroneous. When the error alleged is to the admission or to the rejection of evidence, the specification shall quote the full substance of the evidence admitted or rejected. When the error alleged is to the charge of the court, the specification shall set out the part referred to iotidem verbis, whether it be instructions given or instructions refused. When the error alleged is to a ruling upon the report of a master, the specification shall state the exception to the report and the action of the court upon it. (3) A brief of the argument, exhibiting a clear statement of the points of law or fact to be discussed, with a reference to the pages of the record and the authorities relied upon in support of each point. When a statute of a State is cited, so much thereof as may be deemed necessary to the decision of the case shall be printed at length. 3. The counsel for a defendant in error or an appellee shall file with the clerk thirty printed copies of his argument, at least one week before S'S tol°^\k°b^« the case is called for hearing. His brief ^^SaS""*' ~" '^^ *" shall be of like character with that re- quited of the plaintiff in error or appellant, except that tto specification of errors shall be required, and no statement of the case, unless that presented by the plaintiff in error or appellant is controverted. 4. When there is no assignment of errors, as required by sec. 997 of the Revised Statutes, counsel . . Assignment of eTrois> to will not be heard, except at the request of oonfom to sec. 997, ' ■*■ , Rev. Stats, — Court may the court; and errors not specified accord- notice a plain error not ' ^ assigned. ing to this rule will be disregarded; but the court, at its option, may notice a plain error not assigned or specified. 5. When, according to this rule, a plaintiff in error or an appellant is in default, the case may be Default by plaintiff dismissed on motion; and when a defend- Default by defenctoti ant in error or an appellee is in default, he ^ ^' "° will not be heard, except on consent of his adversary, and by request of the court. 142 RULES OF THE SUPREME COURT [Rule XXI 6. When no oral argument is made for one of the parties, One counsel only heard, only One coimsel will be heard for the when oral argument not made for other party. adverSe party. 7. No brief or printed argument, required by the fore- Proof of service required, going sections, shall be filed by the clerk unless the same shall be accompanied by satisfactory proof of service upon counsel for the adverse party. 8. Every brief of more than twenty pages shall contam More than 20 pages on its front fly leaves a subject index with brief to be indexed. ^^^^ references, the subject index to be supplemented by a hst of all cases referred to, alphabetically arranged, together with references to pages where the cases are cited. Clause 1 promulgated as Rule 30 at the February Term, 1821, 6 Wheat, v; pub- lished as Rule 27 in 1 Pel. i% and as Rule 29 in 1 How. xxx. See general Rule 53, promul- gated at the January Term, 1860, 8 How. v. By this rule no book or case not referred to in the printed brief was permitted to be referred to in argument. Mr. Justice Wayne dissented from the rule and Woodbury, J., did not concur. Rule 57 promulgated at the December Term, 1849, required 12 printed copies filed three days before the case was called. Became Clauses 3 and 6 of Rule 21 in the revision of 1859, 21 How. xii, xiii, and Clauses 3 and 11 of the revision of 1871, 11 Wall, ix; amended Nov. 16, 1872, 14 WaU. xi, and Jan. 7, 1884; published 108 U. S. 584; amended October Term, 1911. Note. The brief must be signed by a member of the bar of the Supreme Court. The firm name is improper. Clause 2 promulgated May 1, 1871, 11 Wall, ix; revised Nov. 16, 1872, 14 WaU. xi; revised Jan. 7, 1884, 108 U. S. 585. . Clause 3 published as revised in 1871 in 11 Wall, ix; amended Nov. 16, 1872, 14 Watt. xi; amended Jan. 7, 1884, 108 U. S. 585; amended October Term, 1911. Clause 4 promulgated May 1, 1871, as Clauses 5, 6 and 8 of Rule 21, 11 WaU. ix; amended Nov. 16, 1872, 14 WaU. xii ; published 108 U. S. 585. Clause 5 adopted as Rule 53 at the December Term, 1849, promulgated January Term, 1850, 8 How. v. Made Clause 5 of Rule 21 in the revision of 1859, 21 How. xii, and Clause 10 of Rule 21 in the revision of May 1, 1871, 11 WaU. x, and Clause 9 of Rule 21, Nov. 16, 1872, 14 Wall. xii. Made Clause 5 in the revision of 1884, 108 U. S. 585. Clause 8 adopted as Clause 7 of Rule 21, December Term, 1858, 21 How. xiii. Became Clause 12 of Rule 21 in the revision of May 1, 1871, 11 How. x; amended as Clause 10, Nov. 16, 1872, 14 Wall. xii. Made Clause 6, Jan. 7, 1884, 108 U. S. 585; amended Dec. 11, 1893, 150 U. S. 713, 37 L. ed. 1239. Clauses 1 to 7 promulgated December 22, 1911 Clause 8 promulgated April 1, 1912. Decisions The court requires a statement of the case even though the question is a question of fact. Riley ;;. Lamar, 2 Cranch, 344r-347, note, 2 L. ed. 302, Feb. T., 1804. Where plaintiff in error has filed no assignments of error or brief as required by Rule 21, the judgment will be affirmed. Ryan v. Koch, 17 WaU. 19, 21 L. ed. 611, Dec. T., 1872. Rule XXI] RULES OF THE SUPREME COURT 143 Where the case was submitted by the appellants without any brief filed, the court stated that compliance with Rule 21 would be insisted upon and, because disregarded, dismissed the appeal. Portland Co. v. United States, 15 Wall. 1-3, 21 L. ed. 114, Dec. T., 1872. A cause dismissed for failure to furnish the court with a statement of the points in the case may afterwards be reinstated by consent of the parties. Schooner Catherine v. United States, 7 Cranch, 99, 3 L. ed. 281, Feb. T., 1812. Strictly in chancery practice no exceptions to a master's report can be made which were not taken before the master; the object being to give the master an opportunity to correct his errors, or reconsider his opinion. Exceptions to reports of masters in chancery are in the nature of a special demurrer; the party objecting must point out the error, otherwise the part not excepted to will be taken as admitted. Excep- tions which indicate nothing but dissatisfaction with the entire report, and furnish no specific grounds of error by which the objecting party has suffered any wrong will be disregarded. Story v. Livingston, 13 Pet. 359-366, 10 L. ed. 203. The Supreme Court will not review a master's report upon exceptions taken for the first time in that court. McMickin v. Perin, 18 How. 607, 15 L. ed. 506. Subdivision 2 of Clause 2, Rule 21, presupposes that the particular exception relied upon was taken in the court below, and was passed upon by the court adversely to the appellant. Proper practice requires that objections to the master's report shall be taken in the trial court, that any errors discovered therein may be rectified by the court itself, or upon reference to the master for correc- tion. Topliff V. Topliff, 145 U. S. 156-172, 36 L. ed. 665. Where the only exception taken at the trial, and embodied in the assignment of errors, is the refusal of the trial court to charge, that under the evidence the plaintiff is not entitled to recover, plaintiff in error cannot obtain a reversal of the judgment for lack of evidence that plaintiff was not the party authorized by statute to sue. Such an assign- ment of error held too broad and general to bring up such a specific objection and not a compliance with Rule 21 ; that the court could not be put to the labor of examining the whole evidence to see whether there was enough for the verdict to rest on. Grand Trunk R. Co. v. Ives, 144 U. S. 408, 36 L. ed. 488. Failure to present and insist upon errors assigned in the court below constitute an abandonment or waiver of aU errors so assigned, not vital to the question of jurisdiction, or the foundation of the right. 144 RULES OF THE SUPREME COURT [Rule XXI The court can only be called upon to consider such assignments as are pressed upon its attention, or noticed in the decree of the court below. Old, Jordan N. & M. Co. v. Soci6t6 Anonyme de Mines, 164 U. S. 261-264, 41 L. ed. 428, Oct. T., 1896. Where no assignments of error are sent up with the record as re- quired by sec. 997, Reo Stats. {U. S. Comp. Stats. 1901, p. 712), and no specifications of the errors relied upon as required by Rule 21, the writ wiU be dismissed. Rowe v. Phelps, 162 U. S. 87-88, 38 L. ed. 365, Oct. T., 1893. Only such questions as are specified in the assignment of errors are in general to be regarded ae open to the plaintiff in error. It is very doubtful whether an assignment that the decision of the trial court is for the wrong party is sufficient to present any question to the ap- pellate court for decision. Scholey v. Rew, 23 Wall. 331-345, 23 L. ed. 101, Oct. T., 1874. Errors not assigned in a manner required by Rule 21 will be treated as if not made. Deitsch v. Wiggins, 15 Wall. 539-546, 21 L. ed. 229, Dec. T., 1872. Where counsel present an unlimited number of assignments in per- version of the rule requiring assignments of error to enable the court and opposite counsel to see upon what points the plaintiff's counsel intend to ask a reversal, the court wiU only respond to such points as seem material to the judgment which it must render. PhiUpps and Colby Co. V. Seymore, 91 U. S. 646-648, 23 L. ed. 342, Oct. T., 1875. An assigimient of error that the court erred in giving instructions in the general charge in Ueu of the instructions asked for, but which fails to state in what the error consisted, or in what part of the charge the error is contained, fails to comply with Rule 21. Lucas v. Brookes, 18 Wall. 436-456, 21 L. ed. 784, Oct. T., 1873. Failure to annex to or return with the writ of error an assignment of errors as required by sec. 997, Rev. Stats. (U. S. Comp. Slats. 1901, p. 712), is not ground for dismissal for want of jurisdiction. If the assign- ment is filed in accordance with Paragraph 2, Rule 21, it will ordinarily be enough. Independent School District v. Hall, 106 U. S. 428-429, 27 L. ed. 237, Oct. T., 1882. Where the case is submitted by defendant in error on brief and there is no appearance by plaintiff in error and no assignment of errors as required by sec. 997, Rev. Stats. (U. S. Comp. Stats. 1901, p. 712), and Paragraph 2 of Rule 21, judgment will be affirmed under Paragraph 4 of the same rule for want of due prosecution of the writ of error. Dugger V. Tayloe, 121 U. S. 286, 30 L. ed. 947, Oct. T., 1886. Rule XXI] BULES OP THE SUPREME COURT 145 Where no errors had been assigned either upon the record or in the briefs of counsel as required by Rule 21, the court, instead of affirm- ing the decree without looking into the record, proceeded to consider the points presented in the briefs, announcing that this should not be deemed a precedent. Ober v. Gallagher, 93 U. S. 199-203, 23 L. ed. 830, Oct. T., 1876. The rule applied and case disijiissed under Clause 5. Benites v. Hampton, 123 U. S. 519-521, 31 L. ed. 261, Oct. T., 1887. Where the defendant in error had permitted the cause to be brought to a hearing without appearing by counsel and without any argument of the questions involved, an opinion was withheld and the cause con- tinued for argument upon motion of counsel as amicus curicB, stating that the questions at issue were of general concern. Green v. Biddle, 8 Wheat. 1-8, 5 L. ed. 552, Feb. T., 1823. The court has jurisdiction to allow counsel to file briefs as amicus curiae in any case. Where it does not appear that an applicant to file briefs is inter- ested in any other case to be affected by the decision and the parties are represented by competent counsel, leave to file will be denied. Northern Securities Co. v. United States, 191 U. S. 555, 48 L. ed. 299, Oct. T., 1903. Where a State statute cited is not printed in or with the brief as required by Rule 21, a submission under Rule 20 will be set aside and the cause restored to its place on the docket. School District v. In- surance Co., 101 U. S. 472, 25 L. ed. 868, Oct. T., 1879. Where a deposition, excluded because the witness was present in court orally testifying, is not in or made a part of the record, the court cannot decide that its exclusion as evidence was error. Whitney v. Fox, 166 U. S. 637-645, 41 L. ed. 1148, Oct. T., 1896. A party may not appeal from a decree in his favor because the judge has given no reasons, or recited insufficient ones for a judgment ad- mitted to be correct. Coming v. Troy I. & N. Factory, 15 How. 451- 465, 14 L. ed. 774, Dec. T., 1853. Where there is no cross-appeal the court will not consider errors as- signed by the appellee. The Stephen Morgan v. Good, 94 U. S. 599- 600, 24 L. ed. 266, Oct. T., 1876. Although there may be manifest error in the judgment prejudicial to the defendant in error, it wiU not be corrected on the plaintiff's writ, and assigwaients of error. Tilden v. Blair, 21 WaU. 241-249, 22 L. ed. 634, Oct. T., 1874. 10 146 KULES OF THE SUPREME COURT [Rule XXII Where a cause has been referred to a master to state an account, his conclusions depending upon an examination of boeks and oral testimony, and perhaps the opinions of experts, have every reasonable presumption in their favor, and are not to be set aside or modified unless there clearly appears to have been error or mistake on the part of the master. Cam- den V. Stuart, 144 U. S. 104, 36 L. ed. 368. Rule XXII— Oral Arguments 1. The plaintiff in error or appellant in this court shall be Appellant entitled to open entitled to Open and conclude the argu- an' '"ri^d'-'tio''- where the dismissal shall be for want of jurisdiction, when the costs incident to the motion to dismiss shall be allowed. 2. In all cases of affirmance of any judgment or decree in this court, costs shall be allowed to the On affirmance, costs to defendant in error or appellee, unless d^f«°dant in error, otherwise ordered by the court. 3. In cases of reversal of any judgment or decree in this court, costs shall be allowed to the On reversal, costs to plaintiff in error, includ- plaintiff m error or appellant, unless i^g costs of transcript, otherwise ordered by the court. The cost of the transcript of the record from the court below shall be a part of such costs, and be taxable in that court as costs in the case. 4. Neither of the foregoing sections shall apply to cases where the United States are a party; but Clauses 2 and 3 not to '^ 1 . *PP'y ™™ Umted m such cases no costs shall be allowed in states a party. this court for or against the United States. 5. In all cases of the dismissal of any suit in this court, it shall be the duty of the clerk to issue a mandate, or other proper process, in the nature of a pro- 9° , dismissal a pro«- ^ ^ ^ ' I* 1 denao goes to court cedendo, to the court below, for the be'ow. purpose of informing such court of the proceeding? in this court, so that further proceedings may be had in such court as to law and justice may appertain. 6. When costs are allowed in this court, it shall be the duty of the clerk to insert the amount Costs to be inserted in *' 1 fl t 1 ® mandate and bill thereof in the body of the mandate, or of costs annexed, other proper process, sent to the court below, and annex to the same the bill of items taxed in detail. 152 KULES OF THE SUPREME COURT [Rule XXIV 7. In pursuance of the Act of March 3, 1883, authorizing Table of fees. and empowering this court to prepare a table of fees to be charged by the clerk of this court, the following table is adopted: For docketing a case and filing and indorsing the transcript of the record, five dollars. For entering an appearance, twenty-five cents. For entering a continuance, twenty-five cents. For filing a motion, order, or other paper, twenty-five cents. For entering any rule, or for making or copying any record or other paper, twenty cents per folio of each one hundred words. For transferring each case to a subsequent docket and indexing the same, one dollar. For entering a judgment or decree, one dollar. For every search of the records of the court, one dollar. For a certificate and seal, two dollars. For receiving, keeping, and paying money in pursuance of any statute or order of court, two per cent on the amount so received, kept, and paid. For an admission to the bar and certificate imder seal, ten dollars. For preparing the record or a transcript thereof for the printer, indexing the same, supervising the printing, and distributing the printed copies to the justices, the reporter, the law library, and the parties or their counsel, fifteen cents per folio; but when the necessary printed copies of the rec- ord, as printed for the use of the lower court, shall be furnished, the fee for supervising shall be five cents per folio. For making a manuscript copy of the record, when re- quired imder Rule 10, twenty cents per foho, but nothing in addition for supervising the printing. For issuing a writ of error and accompanying papers, five dollars. For a mandate or other process, five dollars. For filing briefs, five dollars for each party appear- ing- Rule XXIV] RULES OF THE SUPREME COURT 153 For every printed copy of any opinion of the court or any justice thereof, certified under seal, two dollars. Note. In the revision of December Term, 1858, 21 How. ix, Clause 6 of Rule 10 read as follows: In cases of dismission for want of jurisdiction, each party shall be charged with one-half the legal fees for a copy (of the record) ; amended May 8, 1876, 91 {7. iS. vii to read: In all cases of dismissal for want of jurisdiction the fees for the copy shall be taxed against the party bringing the cause into court, unless the court shall otherwise direct. Clause 1 promulgated at the January Term, 1838 as Rule 45, 12 Pet. vii; 1 How. xxxvi. Made Clause 1 of Rule 24 in the revision of 1859, 21 How. xiii; 108 V. S. 587. Clause 2 promulgated as Rule 46 at the January Term, 1838, 12 Pet. vii; published as Clause 2 of Rule 45 in 1 How. xxxvi. Made Clause 2 of Rule 21 in the revision of 1859, 21 How. xiv; 108 U. S. 587. Clause 3 promulgated at the February Term, 1810, as Rule 22, 1 Wheat, xvii; 1 Pet. viii. Made Rule 47 at the January Term, 1838, 12 Pei. vii; published as Clause 3 of Rule 45 in 1 How. xxxvi. Made Clause 3 of Rule 24 in the revision of 1859, 21 How. xiv; amended Apr. 18, 1864, 1 Wall, v; published in 108 V. S. 587. Clause 4, original Rule 48, promulgated at the January Term, 1838, 12 Pet. vii; published as Clause 4 of Rule 45, 1 How. xxxvi. Made Clause 4 of Rule 24 in the revision of 1859, 21 How. xiv; 108 U. S. 587. Clause 5 promulgated at the January Term, 1858, as Rule 49, 12 Pet. vii; published as Clause 5 of Rule 45 in 1 How. xxxvi. Made Clause 6 of Rule 21 in the revision of 1859, 21 How. xiv; 108 U S. 587. Clause 6 promulgated at the January Term, 1838, as Rule 50, 12 Pet. vii; published as Clause 6 of Rule 45 in 1 How. xxxvi. Made Clause 6 of Rule 24 in the revision of 1859, 21 How. xiv; 108 U. S. 587. Clause 7 promulgated Jan. 7, 1884, 108 U. S. 587; amended October Term, 1911. Promulgated December 22, 1911. 222 27.8. Decisions The United States is not liable for costs. United States «. Boyd, 5 How. 29-51, 12 L. ed. 46, Jan. T., 1847. No. court can make a direct judgment or decree against the United States for costs or expenses in a suit to which the United States is a party, either on behalf of any suitor or of any officer of the Govern- ment. The Antelope, 12 Wheat 546-550, 6 L. ed. 725, Jan. T., 1827. Prior to the adoption of the rule the court directed the clerk, that in cases of reversal, costs do not go of course, but in all cases of affirm- ance they do. When a judgment is reversed for want of jurisdiction, it must be without costs. Montalet v. Murray, 4 Cranch, 46-47, 2 L. ed. 546, Feb. T., 1807. The Supreme Court cannot give a judgment for costs in a case dis- missed for want of jurisdiction. Strader v. Graham, 18 Horn. 602, 15 L. ed. 464, Dec. T., 1855. Where the suit fails for want of jurisdiction the court has no au- thority to award costs against the losing party, as a general rule, or 154 RULES OF THE SUPREME COURT [Rule XXIV unless the authority is conferred by statute. Mansfield, etc., Co. v. Swan, 111 U. S. 379-387, 28 L. ed. 465, Oct. T., 1883. The Supreme Court has jurisdiction to determine the jurisdiction of the Circuit (District) Coiu't, and in a cause where that court wrongly exercises jurisdiction at the instance of the plaintiff in error, in order to do what justice and right require, may award costs against the success- ful party when a judgment is reversed for want of jurisdiction in the court below, lb. 386. The plaintiff in error is then the losing party in the sense of having ineffectually invoked the jurisdiction of the Circuit (District) Court. lb. 386. The court states it has no formal rule which covers the matter of costs in the case of a reversal on the ground that the lower court did not have jurisdiction, but that Clause 3 of Rule 24 authorizes a dis- cretion in its appUcation to such cases. lb. 389. As a general rule an appeal will not lie in the matter of costs alone, but when the entire decree is appealed from, it is competent for the Supreme Court to consider whether the Circuit (District) Court can give a decree for costs when it dismisses a suit for want of jmrisdiction. Held, that the Circuit (District) Court, having dismissed the bill for want of jurisdiction, is without power to decree the payment of costs, including an attorney's fee in the nature of a penalty. Citizens' Bank V. Cannon, 164 U. S. 319-323, 41 L. ed. 453, Oct. T., 1896. Where the Circuit (District) Court is without jurisdiction it has no power to do anything but strike the case from the docket and its award of costs is void. Nashville v. Cooper, 6 Wall. 247-251, 18 L. ed. 852, Dec. T., 1867. Where the trial court dismissed the action with costs, Held, it must have proceeded upon the merits, for if the dismissal had been for want of jurisdiction, no costs could have been awarded. Elk v. Wilkins, 112 U. S. 94-«8, 28 L. ed. 645, Oct. T., 1884. Jurisdiction to correct what has been wrongfully done remains with a court so long as the parties in the case remain before it, either in the first instance or when remanded to it by an appellate tribunal, and where the judgment of the Circuit Court has been reversed for want of jurisdiction it has power, after the case is remanded, to render a judgment in favor of the defendant for the moneys wrongfully col- lected from him by the plaintiff. Northwestern Fuel Co. v. Brock, 139 U. S. 216-219, 35 L. ed. 153, Oct. T., 1890. Mr. Justice Brewer states that he had supposed the law to be other- wise; that if the court had no jurisdiction to render a judgment against one party it was equally without jurisdiction thereafter in the same case to render a judgment against the other party, and announced Rule XXIV] RULES OP THE SUPREME COURT 155 that he was glad to know that he was mistaken as to the jurisdiction of a court to render a judgment for the restitution of money wrong- fully collected, on a judgment reversed. 76.221. Where a case is dismissed for want of jurisdiction on the face of the pleadings, as a general rule costs will not be allowed. That the de- fendant in the court below is the defendant in the Supreme Court sometimes constitutes an exception. Where costs are improperly allowed in favor of the defendant in the court below, who is also de- fendant in the Supreme Court, he is not entitled to the benefit of such exception, as the decree in his favor must be reversed to correct that error. Homthal v. Keary, 9 Wall. 560-567, 19 L. ed. 562, Dec. T., 1869. Where the original defendant was also the defendant in error, on dismissal of the writ of error for want of jurisdiction the court directed it to be dismissed with costs. Winchester v. Jackson, 3 Cranch, 514, 2 L. ed. 516, Feb. T., 1806. Where an appeal was from a decree dismissing a bill filed to enjoin the destruction of a building and the erection of a new one in its place, and it appeared the new structure had been erected pending the litiga- tion, and the only ground for further prosecution of the appeal was as to the costs of suit, Held the appeal must be dismissed. Wingert v. First National Bank of Hagerstown, 223 U. S. 670, 56 L. ed. 605. The general rule recognized as to costs between party and party, con- fined to the taxed costs allowed by the fee bill, but held inappUcable to costs and expenses directed to be paid out of a fund in court and not by parties to the suit, where the inquiry is a collateral one having a distinct and independent character, and has received a final decision in the trial court. Trustees v. Greenough, 105 U. S. 527, 26 L. ed. 1157. Where the clerk has no security for his fees charged to the prevailing party it is not improper for him to withhold the mandate. Osborn v. United States, 23 L. ed. 872. Note. This case is printed only in the Lawyers' edition. In all cases of reversal, if the Supreme Court directs the court below to enter judgment for plaintiff in error, it will of course enter the judg- ment with the costs of that court. McKnight v. Craig, 6 Cranch, 183-187, 3 L. ed. 194, Feb. T., 1810. If an appeal be taken from a decree upon the merits, and such decree be affirmed with respect to the merits, it will not be reversed upon the question of costs. Du Bois v. Kirk, 158 U. S. 58-67, 39 L. ed. 899, Oct. T., 1894. Costs in equity and admiralty cases are within the sound discretion of the trial court. lb. 67. 16(5 RULES OF THE SUPREME COtTRT [Rule XXV The allowance as costs, of the lee of a solicitor by whose exertions a fund to be administered is recovered is proper, and in fixing the amount the court may proceed upon its own knowledge of the value of the solicitor's sendees. Harrison v. Perea, 168 U. S. 311-325, 42 L. ed. 483, Oct. T., 1897. Rule XXV — Opinions of the Court 1. All opinions delivered by the court shall, immediately Opinions delivered to upon the delivery thereof, be handed to reporter and printed. ^j^g ^i^^.^ ^^ ^6 printed. And it shall be the duty of the clerk to cause the same to be forthwith printed, and to deliver a copy to the reporter as soon as the same shall be printed. 2. The original opinions of the court shall be filed with Opiniona preserved. the clerk of this court for preservation. 3. Opinions printed under the supervision of the justices delivering the same need not be copied by Opinions printed under ,,., i ii. iii,ji supervision of a justice, the clerk mto a booK 01 records: but at the not copied in minutes; ,i i i i 11 i wiien bound, deemed to end 01 each term the clerk shall cause such be recorded. .... . , ■, , prmted opmions to be bound m a substan- tial manner into one or more volumes, and when so bound they shall be deemed to have been recorded. Clause 1 promulgated at the January Term, 1835; published in 1 Bow. xzxv. Became Clause 1 of Eule 25 in the revision of 1859, 21 How. xiv; 108 U. S. 588; amended October Term, 1911. Clause 2 promulgated Mar. 14, 1834, 8 Pet. vii; published as Hule 41 in 1 How. xxxT. Became Clause 3 of Rule 25 in the revision of 1859, 21 How. xiv, and also in the revision of May 1, 1871, 11 Wall. %. Made Clause 2 of Rule 25, Jan. 7, 1884, 108 U. S. 588. Clause 3 promulgated January Term, 1835; published in 1 How. xxxv. Made Clause 2 of Rule 25 in the revision of 1859, 21 How. xiv; amended as published afc Rule 25, Jan. 7, 1884, 108 U. S. 588; amended OotobBr Term, 1911. Promulgated December 22, 1911. 222 U. S. Decisions Prior to the adoption of Clause 1 certified copies of the opinion could be given by the reporter. Anonymous, 3 Pet. 397, 7 L. ed. 719. Where the decision involves no difficult or doubtful questions of law, but a pure question of fact depending on the weight and compari- son of varying and conflicting evidence, the court wiU not deliver an extended opinion. Tyler v. Campbell, 106 U. S. 322, 27 L. ed. 162, Oct. T., 1882. Rule XXVI] RULES OF THE SUPREME COURT 157 In such cases the court is not justified in reproducing in its opinion the facts on which its judgment rests. Harrell v. Beall, 17 Wall. 590- 591, 21 L. ed. 693, Oct. T., 1873. The court takes judicial notice of its own opinions, which it may properly examine in order to determine what matters were considered and upon what grounds the judgment was entered. Thompson ir. Maxwell L. G. and R. Co., 168 U. S. 451-456, 42 L. ed. 641, Oct. T., 1897. Rule XXVI — Call and Order of the Docket 1. Tke court, on the second day in each term, will com- mence calling the cases for argument in „ , , . 1.1,1 1 Cases called in order the order in which they stand on the from second day of jjTj.j term.— H neiuher party docket, and proceed irom day to day ^ady case goes to nejct during the term in the same order (except as hereinafter provided) ; and if the parties, or either of them, shall be ready when the case is called, the same will be heard; and if neither party shall be ready to proceed in the argu- ment, the case shall be. continued to the next term of the court unless some good and satisfactory reason to the con- trary shall be shown to the court. 2. Ten cases only shall be considered as liable to be called on each day during the term. But on the Ten cases called daily coming in of the court on each day the "^ °°°^^ '" °* "''""• entire number of such ten cases will be called, with a view to the disposition of such of them as are not to be argued. 3. Criminal cases may be advanced by criminal cases may be leave of the court on motion of either «'i™'«=^'i "^ ■"<'"°"'- party. 4. Cases once adjudicated by this court upon the merits, and again brought up by writ of error or Cases formerly adjudi- , 11111 /.i cated may be advanced appeal, may be advanced by leave of the on motion, court on motion of either party. 5. Revenue and other cases in which the United States are concerned, which also involve or affect Revenue and other cases some matter of general public interest, or attJ>mey-g™erS°of™uni- which may be entitled to precedence ** states. under the provisions of any act of Congress, may also by leave of the court be advanced on motion of the attorney-general. 158 KULES OF THE SUPREME COURT [Rule XXVI 6. All motions to advance cases must be printed, and Motions to advance to be must contain a brief statement of the p^^^^- matter involved, with the reasons for the application. 7. No other case will be taken up out of the order on the Cases not heard out of docket, or be Set down for any particular regular order, except. ^^y^ except imdcr Special and peculiar circumstances to be shown to the court. 8. Two or more cases, involving the same question, may, Cases involving same by the leavc of the court, be heard to- to|lth°e? on^'onl a'r^i^ gether, but they must be argued as one "^°'- case. 9. If, after a case has been passed, the parties shall desire to have it heard, they may file with the clerk their joint request to that effect, and the case shall reinstated on joint re- then be by him reinstated for call ten quest of counsel. i> ^ i cases after that vmder argument, or next to be called at the end of the day the request is filed. If the parties will not imite in such a request, either may move to take up the case, and it shall then be assigned to such place upon the docket as the coiuii may direct. 10. No stipulation to pass a case will be recognized as bind- Court will not recognize ing upon the court. A case can only be ?r' a'°cVe!-E" bl SO passed upon application made and on appucation and leave. ^^^^^ granted in Open court. Clause 1 promulgated at the January Term, 1830; published in 3 Pet. xvi, having been omitted by mistake from 1 Pet. Published as Rule 36 in 1 How. xxziii. Made Clause 1 of Rule 26 in the revision of 1859, 2 How. xv; amended October Term, 1911. Clause 2 promulgated at the March Term, 1830; published in 3 Pet. vi. Published as part of Rule 36 in 1 How. xxxiii. Became part of Rule 26 in the revision of 1859, 21 How. xv; pubUshed as Clause 2 of Rule 26 in 108 U. S. 589. Clause 3 promulgated as Clause 2 of Rule 2 at the December Term, 1866, 4 Watl. vii. Made Clause 3 of Rule 26 in the revision of May 1, 1871, 11 Wall, xi; 108 U. S. 589. Clause 4 promulgated Jan. 7, 1884, 108 U. S. 589. Clause 5 promulgated as Clause 3 of Rule 2 at the December Term, 1866, 4 Wall. vii. Made Clause 4 of Rule 26 in the revision of May 1, 1871, 11 Wall. xi. Became Clause 5 in the revision of 1884, 108 V. S. 589 ; amended October Term, 1911. Clause 6 promulgated May 3, 1875, as an amendment of Clause 4, 21 WaU. v. Made Clause 6 Jan. 7, 1884, 108 U. S 589. Clause 7 promulgated at the January Term, 1830; published in 3 Pet. xvii. Made part of Rule 36; amended Feb. 5, 1840, 14 Pel. xi; published as part of Rule 36, 1 How. xxxiii and 21 How. xv. Made Clause 5 of Rule 26 in the revision of May 1, 1871, il Wall, xi; pubUshed as Clause 7 of Rule 26 in 108 U. S. 589. Clause 8 promulgated at the December Term, 1866. Clause 4 of Rule 2, 4 Wall. vii. Made Clause 6 of Rule 26 in the revision of May 1, 1871. Became Clause 8 of Rule 26, Jan. 7, 1884; 10 8 U. S. 589. Rule XXVI] RULES OF THE SUPREME COURT "^ 159 •Clause 9 promulgated Jan. 18, 1875, 20 Wall, xvi; published in 108 U. S. 589. Clause 10 promulgated Jan. 18, 1873, 20 Watt, xvi; published in 108 U. S. 590. Promulgated December 22, 1911. 222 U. S. Decisions The rule requiring causes to be ready for hearing when reached will be rigidly enforced. Hurley v. Jones, 97 U. S. 318-319, 24 L. ed. 1009, Oct. T., 1878. The regular order can be varied only where the question in dispute will embarrass the Government while it remains unsettled. No case can be taken out of its regular order on the docket where private in- terests only are concerned. United States v. Fossatt, 21 How. 445, 16 L. ed. 186, Dec. T., 1858. Cases embraced by Paragraph 5 of Rule 26 will be advanced only on the motion of the attorney-general and in the discretion of the court. Poindexter v. Greenhow, 109 U. S. 63-65, 27 L. ed. 861, Oct. T., 1883. Note. The opinion refers to Paragraph 4 of Rule 26, its then number. Though the questions in controversy are serious, if the case has been sent to the foot of the calendar under Rule 26, the court will not assign a day for argument out of the regular order, where such assignment would produce public inconvenience and injustice to others. Barry V. Mercein, 4 How. 574r-576, 11 L. ed. 1109, Jan. T., 1846. Note. In this cause though the appearance of the plaintiff in error was delayed by an unusual length of passage from a foreign country, and by sickness, the court refused to make a special order giving the case priority. A case in which the revenue laws of a State have been enjoined, win not be given preference unless it sufficiently appears that the operation of the government of the State will be embarrassed by the delay. Hoge v. Richmond & D. R. Co., 93 U. S. 1-2, 23 L. ed. 781, Oct. T., 1876. The court must determine what is sufficient reason for the priority of revenue cases granted by sec. 949, Rev. Stats. (U. S. Comp. Stats. 1901, p. 695), under aU the circumstances of the case, and if no disputed prin- ciple of law affecting any other case is discovered, and no question affecting the power of the State to tax property other than that of a single htigant, the motion will be denied. lb. 3. The ordinances of a municipal corporation levying taxes, cannot be classed as revenue laws of a State within the meaning of sec. 949, Rev. Stats., U. S. Cmnp. Stats. 1901, p. 696. City of Davenport v. Downs, 16 Wall. 390-392, 21 L. ed. 96, Dec. T., 1872. Motions to advance a criminal case must state the facta in such manner that the court may judge whether the Government wiU be 160 KULES OP THE SUPREME COURT [Rule XXVII embarrassed by delay. United States v. Norton, 91 U. S. 558, 23 L. ed. 251, Oct. T., 1875. Under Clause 3, Rule 26, the motion is addressed to the discretion of the court, and where the defendant is not in jail a motion to advance will not be granted. Ward v. Maryland, 12 WaU. 163-164, 20 L. ed. 260, Dec. T., 1870. A plaintiff in error convicted of an offense under State laws is not entitled to priority under the Act of June 30, 1870, sec. 949, Rev. Slats., (U. S. Comp. Stats. 1901, p. 695). lb. 164. A case will not be advanced for argument because the court may think it has no merits. Amory v. Amoi-y, 91 U. S. 356, 23 L. ed. 436, Oct. T., 1874. Nor because both parties concur in a motion to advance. A suit in the name of a State upon the relation of individuals is not entitled to priority under sec. 949, Rev. Stats. (U. S. Comp. Stats. 1901, p. 695). Miller v. New York, 12 Wall. 159-161, 20 L. ed. 259, Deo. T., 1870. When a cause is advanced to be heard with another which has pre- cedence on the docket, the two are required to be argued together aa one, except under very peculiar circumstances. The court cannot compel a party against his will to argue his cause with another. Where the court is asked to advance a case to be heard with another cause, which motion is denied, the court may allow the party to submit printed arguments in the case having priority on the questions therein pre- sented, which are common to the two. Louisiana v. New Orleans, 103 U. S. 521, 26 U ed. 307, Oct. T., 1880. Because the case involves the same questions and the construction of the same statutes sought to be reviewed in another cause pending which has precedence on the docket, the court will not advance the case to be argued as one, where the motion is resisted. /6. 521. Where the questions involved have grown out -of one transaction and depend on the same facts, the court will not heair arguments in cases separately and at different terms, but will order them to be argued together. United States v. Booth, 18 How. 47&-479, 15 L. ed. 466, Dec. T., 1856. Rule XXVII — Adjournment The court will, at every term, announce on what day it Adioumment announced will adjoum at least ten days before the ten days in advance. ^^^^ ^y^j^ ^j^^jj ^^ g^^j ^^^^^ ^^^ ^j^^ court will take up no case for argument, nor receive any case Rule XXVIII] KULES OF THE SUPREME COURT 161 upon printed briefs, within three days next before the day- fixed upon for adjournment. Promulgated as original Rule 52 at January Term, 1838, 12 Pet. viii; published as Rule 47 in 1 How. xxxvii, and made Rule 28 in the revision of the rules December Term, 1858, 21 How. xv. Became Rule 27 in the revision of Jan. 7, 1884, 108 U. S. 590. Promulgated December 22, 1911. 222 U. S. Rule XXVIII — Dismissing Cases in Vacation Whenever the plaintiff and defendant in a writ of error pending in this court, or the appellant and appellee in an appeal, shall in vacation, by their attor- cierk may dismiss in . T "V-i .11 vacation on jomt re- neys of record, sign and file with the quest. clerk an agreement in writing directing the case to be dis- missed, and specifying the terms on which it is to be dismissed as to costs, and shall pay to the clerk any fees that may be due to him, it shall be the duty of the clerk to enter the case dismissed, and to give to either party requesting it a copy of the agreement filed; but no mandate or other process shall issue without an order of the court. Promulgated as original Rule 64 at December Term, 1857, 20 How. iv. Made Rule 29 in the revision at the December Term, 1858, 21 How. xvi. Became Rule 28 at the revision Jan. 7, 1884; published in 108 U. S. 590. Promulgated December 22, 1911. 222 U. S. Decisions Where an appeal was dismissed on motion of appellant's counsel, and after unreasonable delay a motion by other counsel was made to have the order of dismissal vacated and to reinstate the case upon affidavit that his former counsel acted without appellant's knowledge or consent, the court held that appellant must have had knowledge of the dismissal and by his long silence must be held to have acquiesced and ratified his counsel's act; that the motion was addressed to the discretion of the court and should be denied, though the appellee filed a consent to the motion. Deming v. United States, 10 Wall. 251-256, 19 L. ed. 894, Dec. T., 1869. Where parties have an interest in the subject-matter of the suit, but are represented by the attorney-general of the United States as their attorney of record, in case the cause is dismissed upon a stipula- tion between the attorney-general and counsel on the other side. Held, in the dissenting opinion by Mr. Justice Miller, that the fact of the right and interest of the parties might be shown to the court by affidavit or in any manner to satisfy the court, and they might resist a dismissal 11 162 RULES OP THE SUPREME COURT [Rule XXIX or apply to set aside, a dismissal ordered. United States v. Estudillo, 1 Wall. 710-718, 17 l'. ed. 704, Dec. T., 1863. Rule XXIX— Supersedeas Supersedeas bonds in the District Courts and Circuit Courts Supersedeas boixisin of Appeals must bc taken, with good and Soncy* decree or" udg' sufficicut securfty, that the plaintiff in Turn-' a*so ''damage^^°o? crror or appellant shall prosecute his writ fsf-^othetthan^ money or appeal to effect, and answer all dam- cienrto'"serr?ecove?; ages and costs if he fail to make his plea oosts^fntrr^ei/ainSst good. Such indemnity, where the judg- damagea for delay. j^gj^^ qj, decree is for the recovery of money not otherwise secured, must be for the whole amount of the judgment or decree, including just damages for delay, and costs and interest on the appeal; but in all suits where the property in controversy necessarily follows the event of the suit, as in real actions, replevin, and in suits on mort- gages, or where the property is in the custody of the marshal under admiralty process, as in case of capture or seizure, or where the proceeds thereof, or a bond for the value thereof, is in the custody or control of the court, indemnity in all such cases is only required in an amount sufficient to secure the sum recovered for the use and detention of the property, and the costs of the suit, and just damages for delay, and costs and interest on the appeal. Promulgated at December Term, 1867, as original Rule 32, 6 Wall. v. Made Bule 29 at the revision of May 1, 1871, published in 108 U. S. 590; amended December 22, 1911. 222 U. S. Decisions It is not necessary that all appellants join in the appeal bond, though all must join in the appeal. It is sufficient that the appeal bond is approved by the court as satisfactory security by whomsoever executed. Brockett v. Brockett, 2 How. 238-240, 11 L. ed. 252, Jan. T., 1844. Security upon writs of error or appeals must be taken by the judge or justice. He cannot delegate this power to the clerk. O'Reilly v. Edrington, 96 U. S. 724-727, 24 L. ed. 659, Oct. T., 1877. Where the clerk approved a bond under the order of the court below, the Supreme Court refused to dismiss the appeal and stated that the case was a proper one for the application of its rule, by which that court sometimes refuses to disuiiss appeals and writs pf error where Rule XXIX] RULES OF THE SUPREME COURT 163 there are defects in the proceedings, except on failure to comply with imppsed terms. lb. 727. Under sec. 1000, Rev. Stats. ( U. S. Comp. Stats. 1901, p. 712), the power to approve the security cannot be delegated to a comniissioner of court. Haskins v. St. Louis, etc., Ry. Co., 109 U. S. 106-107, 27 L. ed. 873, Oct. T„ 1883. The security may be approved by the judge out of court in vacation. Iludglns V. Kemp, 18 How. 530-538, 15 L. ed. 514, Dec. T., 1855. An order of the court allowing an appeal is in effect an order to send the transcript of the record to the appellate court and the clerk's authority for making the return. This order cannot legally be given until the security is approved. lb. 639. The security must be given within the time prescribed to obtain a supersedeas and be sufficient to cover the full amount decreed against the appellant; unless he desires to carry up the case without supersedeas, when the security need be only to cover the costs that may be recovered against him in the Supreme Court. lb. 539. Where an appeal is taken in open court, a memorandum entry of the fact in the minutes or order book is not necessary to give it validity; the party is exercising a legal right, and the clerk's certificate of the fact is sufficient. lb. 637. Whenever security for an appeal is accepted during a term an appeal is allowed. Until the security has been accepted, allowance of an appeal cannot be said to have been perfected. Sage v. Central Rail- road, 96 17. S. 712-715, 24 L. ed. 643, Oct. T., 1877; (modified by Peugh V. t)a,vis, 110 U. S. 227, holding an appeal in term may be allowed before security given). The refusal of the Circuit (District) Court to accept a supersedeas bond when offered during the term does not prevent a judge of that court or a justice of the Supreme Court from accepting one thereafter. lb. 715. If the security is given and accepted in open court during the term at which the decree appealed from is rendered, no citation is neces- sary, lb. 716. Even though an appeal is asked for in open court, if the security is not taken until after the term, a citation should be issued to bring in the parties. lb. 715. Congress has not provided for the furnishing of security for the damages whicli might be recovered in an action for mesne profits, when a writ of error is taken from a judgment in ejectment, on which nominal damages only are awarded. The Supreme Court cannot award damages except as authorized by sees. 23, 24 of the Judiciary Act of 1789, which does not cover cases of apprehended losses except when they are part of the original suit. Roberts v. Cooper, 19 How. 373-374, 15 L. ed. 687, Dec. T., 1856. 164 RULES OF THE StTPRBME COURT [Rule XXIX A bond which contains no security for costs is insufficient in form either for an appeal or a supersedeas. Seward v. Comeau, 102 U. S. 161, 26 L. ed. 86, Oct. T., 1880. That the bond is not sufficient in form does not avoid the appeal, but the court may impose terms for the omission. 7b. The question of the sufficiency of the security to operate as a super- sedeas must be determined in the first instance by the judge who signs the citation; but after the allowance of the appeal this question, as well as every other in the cause, becomes cognizable in the Supreme Court. Rubber Co. v. Goodyear, 6 Wall. 153-157, 18 L. ed. 763, Dec. T., 1867. The power of a judge of the court below over an appeal and security in the absence of fraud is exhausted when he takes the security and signs the citation. From that time the control of the supersedeas as well as the appeal is transferred to the Supreme Court, and the court below is without power to proceed with the execution of the decree appealed from. Draper v. Davis, 102 U. S. 370-371, 26 L. ed. 122, Oct. T., 1880. After the acceptance of the bond for an appeal and the docketing of the cause in the Supreme Court the jurisdiction of the court below is gone, and it has no power to make an order vacating its allowance of an appeal. Keyser v. Farr, 105 U. S. 265-266, 26 L. ed. 1026, Oct. T., 1881. Without departing from the rule announced in Jerome v. McCarter, 21 Wall. 17, the Supreme Court declares that fraud is always open to inquiry and the court will have no hesitation in setting aside a super- sedeas bond obtained by misrepresentation amounting to fraud and perjury. Raih-oad Co. v. Schutte, 100 U. S. 644-647, 25 L. ed. 605, Oct. T., 1879. In this case the court exercising its discretion, refused to accept a new bond in the place of the supersedeas bond vacated. lb. 647. Note. Where as in Bigler v. Waller, 12 Wall. 142, the court states that security must be given within ten days to operate as a supersedeas it must be remembered that these decisions were made before the amendment of sec. 23 of the Act of 1789, by the Act of June 1, 1872, 17 Stat. L. 198, sec. 11. Sec. 1007, Rev. Stats., U. S. Comp. Stats. 1901, vol. 1, p. 714. Prior to the adoption of Rule 29 the amount of the bond given on appeals or writs of error was required to be the amount of the decree or judgment. There was no discretion to be exercised by the judge taking the bond where the appeal or writ of error operated as a super- Rule XXIX] RULES OF THE SUPREME COURT 165 sedeas. Jerome v. MoCarter, 21 Wall. 17-27, 22 L. ed. 516, Oct. T., 1874. Rule 29 is in harmony with the Act of 1789 by which the security to be taken is left to the discretion of the judge or justice accepting it. The rule being for the better adaptation of the practice to the protection of the rights of the litigants. lb. 28. Upon the facts existing at the time the security is accepted, the action of the judge or justice within the statute and rule is final, and cannot be controlled by the appellate court upon motion. 76. 30. If, after the security has been accepted, the circumstances of the case or of the parties or of the sureties upon the bond have changed, so that the security which, at the time it was taken was "good and sufficient," does not continue to be so, the Supreme Court may, upon proper application, make an order as justice may require. lb. 31. On an appeal from a decree for the foreclosure of a mortgage the appeal bond is not intended for a security for either the amount of the decree, or the interest accruing pending the appeal, but for such dam- ages as may arise from the delay incident to the appeal. 76. Under Rule 29 in suits on mortgages the damages upon appeal to be answered for are only such as are incident to delay ih the sale of the property. Supervisor v. Kennicutt, 103 U. S. 554-557, 26 L. ed. 488, Oct. T., 1880. An appeal bond in an ordinary foreclosure suit in the courts of the United States does not operate as security for the amount of the original decree; nor the interest accruing thereon pending the appeal; nor for the balance due after applying the proceeds of the mortgaged prem- ises; nor for the rents and profits or use and detention of the property pending the appeal; but only for the costs of the appeal; and th6 deterio- ration or waste of the property, and perhaps burdens accruing upon it for the non-payment of taxes, and loss by fire if not properly insured. It is very doubtful whether mere depreciation in market value is any cause of recovery on the bond. Kountze v. Omaha Hotel Co., 107 U. S. 378-395, 27 L. ed. 615, Oct. T., 1882. Justices Miller and Field who participated in framing Rule 29 dis- sent, holding liabihty on the bond for "use and detention" pending the appeal. 76. 398. Where the appeal bond requires the plaintiff shall pay for the "use and detention" of mortgaged property during the appeal these words will be rejected and the bond construed as having the legal effect re- quired by the statute. The judge taking the bond having no right to require such an addition to the appeal and supersedeas fixed by law. 76. 396. When it is desired to make the appeal a supersedeas the bond must be filed within ten days (now 60 days, sec. 1007, Rev. Stats., U. S. 166 RULES Of THE StTPREME COURT [Rule XXIX Comp. Stals. 1901, p. 714), from the rendering of the decree. The ques- tion of the sufSciency of the bond must be determined by the judge who signs the citation, but after the appeal is allowed that question, as weU as every other, becomes cognizable in the appellate court, and that court may, in the exercise of its appellate jurisdiction, increase or di- minish the bond, or require additional security as justice may require. French v. Schoemaker, 12 Wall. 86-99, 20 L. ed. 271, Dec. T., 1870. In order that a writ of error may operate as a supersedeas it is nec- essary that a copy of the writ be lodged for the adverse party in the clerk's office where the record remains, and that the bond approved by the judge allowing the writ should also be filed there. Commis- sioners V. Gorman, 19 Wall. 661-662, 22 L. ed. 227, Oct. T., 1873. If the writ of error and bond are filed before the expiration of ten days, no execution can issue so long as the case in error remains un- disposed of. lb. 662. While vmder the Act of June 1, 1872 (17 Stat. L. 196), sec. 11, a supersedeas may be obtained within sixty days from time of the entry of the judgment as a matter of right upon filing the bond, yet if the writ and bond are not filed within ten days, such supersedeas stays only proceedings after filing the bond. It prevents further proceeding under an execution which has been issued, but does not interfere with what has already been done. Ih. 662. The ten days during which execution may not issue begins to run from date of entry of the judgment and not from the date when signed. Ih. 665. Note. After the decisions in 19 Wall. 419, and 7b. 661, the Revised Statutes were adopted. As originally adopted no execution could issue without leave where the writ of error might be a supersedeas until the sixty days allowed for perfecting an appeal had expired; but by the Act of Feb. 18, 1875 (18 Stat. L. 318), Congress amended the section limit- ing the time for withholding execution to ten days. The issuance of the writ of error must precede the execution of the bond, but it may be served at any time before or simultaneously with the filing of the supersedeas bond (which since the Act of June 1, 1872, sec. 1007, Rev. Stats., U. S. Comp. Stats. 1901, p. 714, may be executed within sixty days after the rendition of the judgment). Telegraph Co. V. Eyser, 19 Wall. 419-428, 22 L. ed. 44, Oct. T., 1873. The giving of the bond is made the condition of the stay. lb. 428. Where the security is given within 60 days a supersedeas follows as a matter of right. lb. 428. The service of the writ of error or the perfection of an appeal within sixty days, Sundays exclusive, after the rendition of the judgment Rule XXIX] RULES OF THE SUPREME COURT 167 complained of is an indispensable prerequisite of a supersedeas, and it is not within the power of a justice or judge of the appellate court to grant a stay of process on the judgment or decree if this has not been done. Kitchen v. Randolph, 93 U. S. 86-92, 23 L. ed. 812, Oct. T., 1876. If a writ of error has been served within the time required, a stay may be had as a matter of right by giving the required security within sixty days, and afterwards as a matter of favor if permission be ob- tained from the designated judge or justice. lb. 92. A writ of error operates as a supersedeas only from the time of lodg- ing the writ in the office of the clerk where the record to be re-examined remains. 76. 88. By sec. 1012, Rev. Stats. (U. S. Comp. Stats., 1901, vol. 1, p. 716), appeals are placed on the same footing as writs of error. 76. By the adoption of sec. 1007, Rev. Stats. (.U. S. Comp. Stats. 1901, vol. 1, p. 714), Congress changed the law as it existed when the opinion was rendered in Telegraph Co. v. Eyser, and allowed a supersedeas only where the writ of error was served within 60 days after the rendition of the judgment. 7b. 92. History of the statutes allowing supersedeas prior to the Revised Statutes of 1873 stated. 7b. 87. The rule established in Sage v. Central Rd., 96 U. S. 712, 24 L. ed. 643 (here, pp. 163 and 168) ; Kitchen v. Randolph, 93 U. S. 92, 23 L. ed. 810 (p. 167), is that to give a justice or judge of the appellate court authority to grant a supersedeas after the expiration of the sixty days, a writ of error must have been issued or an appeal allowed within that time. Peugh v. Davis, 110 U. S. 227-228, 28 L. ed. 128, Oct. T., 1883. A prayer for an appeal made in open court and an order allowing it constitute a valid appeal. The bond is not essential to the taking of the appeal though it may be to its prosecution, and the Supreme Court has permitted the appellant to give a bond in that court. 76. 228. If an appeal is allowed by the court in term time without taking a bond within sixty days after rendition of the decree, a justice or judge of the appellate court, may, in his discretion, grant a supersedeas after the expiration of that time under sec. 1007, Rev. Stats. {U. S. Comp. Stats. 1901, vol. 1, p. 714). 76. 229. A supersedeas is not obtained by virtue of any process issued by the Supreme Court. It foUows as a matter of law, on compliance with the provisions of the Act of Congress, and the court is not required to issue any writ to perfect the right of a party to that which the law has given him. Goddard v. Ordway, 94 U. S. 672-673, 24 L. ed. 238, Oct. T., 1875. If the court below through mistake or otherwise is proceeding to execute its judgment or decree notwithstanding a supersedeas, the Supreme Court may issue a writ to restrain that action, in the exercise of their power under sec. 716, Rev. Slats. ([/. S. Comp. Slats. 1901, p. 580), 168 RULES OF THE SUPREME COURT [Rule XXIX the form of the wTit depending on the particular circumstances of the case. lb. 673. Power to issue a supersedeas to a judgment rendered in a subordinate court does not exist in the Supreme Court, where the writ of error is not sued out and served within ten (now sixty) days from the date of the judgment. Slaughter House Cases, 10 Wall. 273-291, 19 L. ed. 920, Dec. T., 1869. An exception to the rule has been made where the delay is the fault of the court and not of the party and where the granting of such writ is necessary to appellate jurisdiction because the subordinate court haa improperly rejected a proper bond offered in due time. lb. 291. A further exception arises where the judgment or decree of the highest court of a State is required to be returned to the subordinate court for execution. In such cases the writ of error granted by the Supreme Court may operate as a supersedeas if granted and served within ten (now sixty) days from the return entry of the proceedings in the court from which the record was removed. lb. 291. Where the prescribed conditions are complied with appeals and writs of error become supersedeas by virtue of the Act of Congress, and not by virtue of any process. lb. 291. Where the writ of error is seasonably sued out and served and a return thereon made and the record filed, the Supreme Court may grant a supersedeas before the return-day of the writ. lb. 292. Jm:isdiction attaches in the appellate court to issue a supersedeas from the time of compliance with the conditions prescribed by Con- gress to make the writ of error operate as a stay of execution, but only in cases of urgent necessity will the court exercise its power before the return-day of the writ of error. 76. 292. Where a writ of error was sued out and a bond given within the time prescribed by law to operate as a supersedeas, but no copy of the writ of error was lodged in the clerk's office within the prescribed time, Held, the court could not dispense with a comphance with the statute then in force; that by the issuing and due service of the writ, the cause was removed from the inferior court, but to operate as a supersedeas the law must be compUed with. Raiboad Co. v. Harris, 7 Wall. 574- 575, 19 L. ed. 101, Dec. T., 1868. Supersedeas is a statutory remedy. Neither the court nor judges can disregard the requirements of the statute. If a delay beyond the limited time occiu-s, the right to the remedy is gone and the successful party holds the judgment or decree freed and discharged from this means of staying proceedings for its enforcement. Sage v. Central R. R. Co., 93 U. S. 412-417, 23 L. ed. 935, Oct. T., 1876. To make a nunc pro tunc order effectual for the purposes of a super- sedeas it must appear that the delay was the act of the court and not of the parties, and that injustice will not be done. 76. 417. Rule XXIX] RULES OF THE SUPREME COURT 169 The rights of the parties in respect to appeal are determined ty the date of the actual entry, or the signing and filing of the final decree. Rubber Co. v. Goodyear, 6 Wall. 153-156, 18 L. ed. 763, Dec. T., 1867. If the bond has not been furnished and accepted before the cause has been docketed in the Supreme Court, that court before dismissing the appeal will give leave to supply the omission. Dodge v. Knowles, 114 U. S. 436-438, 29 L. ed. 297, Oct. T., 1884. Where execution of the whole decree was stayed by another decree at the time the security was given, after such appeal has been dis- missed the supersedeas may be modififid. Williams v. Claflin, 103 U. S. 753, 26 L. ed. 606, Oct. T., 1880. When a writ of error operating as a supersedeas has been dismissed, and a second writ of error is sued out after the time limited by sec. 23 of the Judiciary Act of 1789 to operate as a supersedeas, the Supreme Court is not authorized to award a supersedeas to stay proceedings in the lower court. Hogan v. Ross, 11 How. 294-297, 13 L. ed. 703, Dec. T., 1850. The form of an appeal bond that the appellants "shall duly prosecute their said appeal with effect and moreover pay the amount of costs and damages rendered and to be rendered in case the decree shall be af- firmed," is correct, and in legal effect conforms to the requirement of sec. 1000, Rev. Stats. (17. S. Comp. Stats. 1901, p. 712). Gay v. Par- part, 101 U. S. 391, 25 L. ed. 841, Oct. T., 1879. If the decree is not substantially reversed, it is affirijied and the ap- peal has not been prosecuted with effect. lb. 392. The bond should be given to the opposite party or parties in the suit, but, if irregular in this respect, it is the constant practice to allow such defects to be obviated by granting leave to file a new bond within a reasonable time to be fixed by the court upon application (if the statute has otherwise been complied with). Bigler v. Waller, 12 Wall. 142-149, 20 L. ed. 262, Dec. T., 1870, If a supersedeas is not desired, the bond is only for costs including "just damages for delay." 76. 149. Though by the form of the bond the sureties are not jointly bound, it being within the discretion of the judge to accept such a bond, his action is not reviewable by the Supreme Court. Insurance Co. v. Albro Co., 112 U. S. 506-507, 28 L. ed. 809, Oct. T., 1884. Sureties upon the bond are not required to be residents of the dis- trict where the iond is given. In a case where a proper bond was refused because the sureties were non-residraits, the court held it doubt- 170 RULES OF THE SUPREME COURT [Rule XXIX ful if it might interfere by mandamus, but as the cause had been re- moved into the Supreme Court (within the time prescribed by sec. 1007, Rev. Stals., U. S. Comp. Stals. 1901, p. 714), it could issue a supersedeas upon filing a bond in that court, and that such power was given by sec. 14 of the Judiciary Act, to render its appellate jurisdiction effectual. Ex parte Milwaukee, etc., Co., 5 V/all. 188-190, 18 L. ed. 676, Dec. T., 1866. Where the writ of error was seasonably taken and security given, and citation served so as to operate as a stay of execution and thereafter a. fieri facias was improperly sued out in the court below; on motion to quash the writ of fieri facias in the Supreme Court, that court issued a supersedeas to suspend and quash the execution in the court below, remarking that it might have been quashed by application to that court, but it was equally competent for the Supreme Court to act. Stockton V. Bishop, 2 How. 74-75, 11 L. ed. 185, Jan. T., 1844. Note. The order from the Supreme Court to the Circuit Court is printed at length. The object of Rule 29 is to secure the eventual payment or perform- ance of the judgment or decree, the execution of which is stayed by the supersedeas, in case the appeal or writ of error is not prosecuted to effect. The rule is satisfied if the indemnity is commensurate with the damages that may follow from the stay which is effected. Ex parte French, 100 U. S. 1-4, 25 L. ed. 530, Oct. T., 1879. Where a judgment runs against several defendants for separate amounts and all the defendants want the judgment reviewed but a part only desire to have execution stayed, all may join in a writ of error and separate when they ask for a stay. 7b. 5. It is not necessary in order to charge the sureties in an appeal bond that an execution on the judgment affirmed in the appellate court should be issued against the principal. All the obligors are principal debtors to the obligee, and if the judgment is affirmed the sureties become liable to the same extent as the principal obligor. Babbitt v. Finn, 101 U. S. 7-14, 25 L. ed. 822, Oct. T., 1879. Sec. 1007, Ret). Stats., (U. S. Comp. Stats. 1901, p. 714), to the effect that in cases where a writ of error may be a supersedeas, executions shall not issue until the expiration of ten days, does not apply to judgments of the highest court of a State. Doyle v. Wisconsin, 94 U. S. 50-52, 24 L. ed. 65, Oct. T., 1876. It was not the intention of Congress to interfere at all with the prac- tice of the State courts, as to executions upon their judgments until a supersedeas is actually perfected. lb. 52, Rule XXX] RULES OF THE SUPREME COURT 171 The provision of sec. 16 of the act to regulate commerce as amended by the Act of Mar. 2, 1889 (25 Stat. L. 855), that appeals from the Circuit Courts should not operate to stay the Circuit (District) Court's order do not prevent an appeal from a decree of the Circuit Court of Appeals, from operating as a supersedeas upon its allowance, with ap- proval of security within the prescribed time. Louisville & N. R. Co. t'. Behlmer, 169 U. S. 644-647, 42 L. ed. 890, Oct. T., 1897. Rule XXX — Rehearing A petition for rehearing after judgment can be presented only at the term at which judgment is Petitions for rehearing , , .11 to be printed. svip- entered, unless by special leave granted ported by certificate ... .11 ^"^ presented at term durmg the term; and must be pnnted and judgment rendered, briefly and distinctly state its grounds, and be supported by certificate of counsel; and will not be granted, or permitted to be argued, unless a justice who concurred in the judgment desires it, and a majority of the court so determines. Promulgated Jan. 7, 1884, 108 U. S. 591; promulgated December 22, 1911, 222 U. S. Decisions After a mandate no rehearing will be granted, and on a subsequent appeal nothing is brought up but the proceedings subsequent to the mandate. Sibbald v. United States, 12 Pet. 488-492, 9 L. ed. 1169, Jan. T., 1838. Except in cases of fraud rehearings are never granted when the final decree has been entered and the mandate sent down, unless the appli- cation is made at the same term. Appellate courts have no power to review their own decision. Noo- nan v. Bradley, 12 Wall. 121-129, 20 L. ed. 281, Dec. T., 1870. Cases cited where the rule has been enforced. Bushnell v. Crooke M. & S. Co., 150 U. S. 82, 37 L. ed. 1007, Oct. T., 1893. After the end of the term the court may do no more than correct any clerical errors that may be found in the record. It has no power to call back parties then discharged. Brooks v. Railroad Co., 102 U. S. 107, 26 L. ed. 92, Oct. T., 1880. Where in the printing of the record there was by accident omitted the return to the citation by which it appeared that the citation was never served, a decree rendered at one term in a cause heard, without appearance of appellee on motion at the next term to set aside and 172 RULES OF THE SUPREME COURT [Rule XXX annul the decree, was held to be within the power of the court to reach, which it did by declaring its decree rendered null and void and re- voking its mandate theretofore sent to the court below. The decree and mandate are set out in the cause. Ex parte Anderson Crenshaw, 15 Pet. 119-124, 10 L. ed. 684, Jan. T., 1841. Where a cause was dismissed because the record contained no evidence of the jurisdiction of the trial court, but the fact was overlooked that the suit was ancillary to an ejectment suit in the same court below on the law side the decree of dismissal was set aside and the cause reinstated. Johnson v. Christian, 125 U. S. 642, 3,1 L. ed. 820. Where a cause has been dismissed upon a mistaken assumption of fact, the judgment of dismissal will be set aside and an appUcation for rehearing will be granted. Security Mut. Life Ins. Co. v. Prewitt, 202 U. S. 246-248, 50 L. ed. 1014. No rehearing will be granted unless some member of the court who concurred in the judgment expresses a desire for it, and not then unless the proposition receives the support of a majority of the court. Ambler V. Whipple, 23 Wall. 278-280, 23 L. ed. 127, Oct. T., 1874. No reargimient will be granted unless a member of the court who concurred in the judgment desires it, and when that is the case, the court of its own accord will apprise counsel of its wishes and designate the points on which it desires to hear them. Brown v. Aspden, 14 How. 25-27, 14 L. ed. 312, Dec. T., 1852. Early practice of Supreme Court compared with practice of the English Chancery Courts. lb. That the decree is affirmed by a divided court is no reason for ordering a re-argument before a full bench. lb. Where the court does not of its own motion order a rehearing it will be proper for counsel to submit without argument a short written or printed petition, or suggestion of the important points, and upon such submission if any judge who concurred in the decision thinks proper to move for a rehearing the motion will be considered. PubUo Schools V. Walker, 9 Wall. 603-604, 19 L. ed. 650, Dec. T., 1869. A motion for a rehearing is one addressed to the discretion of the court. Necessary jurisdictional allegations cannot properly be in- troduced for the first time on a motion for a rehearing. Steines v. Franklin County, 1^1 Wall. 15-21, 20 L. ed. 848, Dec. T., 1871. Decisions of State courts granting or refusing a motion for a re- hearing in an equity suit are not re-examinable in the Supreme Court. 7b. 21. Hules XXXi, XXXil] RULES OF THE StrfREME COURT 173 An application to consider new evidence in a subsequent suit upon a different cause of action the result of which consideration would be to make a finding in the second suit different from the former finding is iti effect to seek a rehearing of one cause in another suit. Such practice is wholly inadmissible under the rule of res adjvdicata. Southern Pacific R. Co. V. United States, 168 U. S. 1-65, 42 L. ed. 382. Rule XXXI — Form of Printed Records and Briefs All records, arguments, and briefs, printed for the use of the court, must be in such form and size Records and briefs, form .111°^ ^^*^ ^^^® *° make that they can be conveniently bound an octavo volume, on , unglazed paper, of pica together, so as to make an ordmary octavo oi larger type, volume; and, as well as all quotations contained therein, and the covers thereof, must be printed in clear type (never smaller than small pica) and on unglazed paper. Promulgated Deo. 19, 1879, 100 U. S. ix; published in 108 U. S. 591; amended October Term, 1899. Amendment promulgated May 14, 1900, 178 U. S. 618, 44 L. ed. 1223. Amended March 31, 1911.' See Act Feb. 13, 1911, allowing parties to print their records. ' Promulgated December 22, 1911, 222 U. S. Decisions Rule 31 relates only to the form and size of the printed records, briefs, and arguments and has nothing to do with the clerk's fee for printing the record. Bean v. Patterson, 110 U. S. 401-403, 28 L. ed. 191, Oct. T., 1883. Rule XXXII — Writs of Error and Appeals in Cases Involving Jurisdiction of Lower Court Cases brought to this court by writ of error or appeal, where the only question in issue is the Cases certified on ques- *^ , . , tion of jurisdiction ad- question of the jurisdiction of the court vanced on motion. below, will be advanced on motion, and heard under the rules prescribed by Rule 6, in regard to motions to dismiss writs of error and appeals. A similar rule for causes brought up under sec. 5 of the Act of Mar. 3, 1875, was promulgated Jan. 16, 1882, as Rule 32, 104 U. S. ix; published in 108 U. S. 591; amended Mar. 10, 1890, 133 U. S. 711; again amended Nov. 28, 1892, 146 U. S. 707; amended Deo. 22, 1911, 222 V. S. i It is ordered by the court that the provisions of Rule 31 of this court shall apply to all records to be printed as provided in the Act of Congress entitled *'an act to diminish the expense of proceedings on appeal and writ of error or of certiorari," approved Feb. 13, 1911. 174 RULES OF THE SUPREME COURT [Rule XXXII Decisions Cases advanced under Rule 32 are submitted like motions to dis- miss under Rule 6; on printed briefs after service of notice and brief as required by Rule 6, sec. 4. Fletcher v. Hamlet, 116 U. S. 4O8-409, 29 L. ed. 679, Oct. T., 1885. Motions under this rule should be accompanied by an agreed state- ment of the case or by such extracts from the record as will show that the case is one to which the rule is applicable. Call v. Palmer, 106 U. S. 39, 27 L. ed. 61, Oct. T., 1882. A writ of error to a State court which affirmed a judgment of a trial court refusing to yield its jurisdiction on a petition for removal. Held, within the spirit of Rule 32 and may be advanced and heard under the rules prescribed by Rule 6 in regard to motions to dismiss. Burling- ton, C. R. & N. Ry. Co. v. Dann, 121 U. S. 182, 30 L. ed. 885, Oct. T., 1886. Where the case is disposed of on motion to dismiss (under Rule 6), an order to advance on motion of appellants under Rule 32 will not be made. Aspen M. & S. Co. v. BilUngs, 150 U. S. 31-34, 37 L. ed. 987, Oct. T., 1893. It is plain that it was the intent of Congress that a party whose suit has been dismissed by a Circuit (District) Court for want of juris- diction shall have the right to have such judgment reviewed by the Supreme Court. Wetmore v. Rymer, 169 U. S. 115-118, 42 L. ed. 683, Oct. T., 1897. The opinion refers to the Act of Mar. 3, 1875 (18 Stat. L. 472); the Act of Aug, 13, 1888 (25 Slat. L. 433), repealing the last paragraph of sec. 5 of the Act of Mar. 3, 1875; the Act of Feb. 25, 1889 (25 Stat. L. 693), and the Act of Mar. 3, 1891, and in a cause where the Circuit Court dismissed the suit as not within the jurisdictional amount, reviewed the judgment on a writ of error to the Circuit Court, and stated that as prescribed by sec. 5 of the Act of Mar. 3, 1891, the ques- tion of the jurisdiction of the Circuit Court was alone presented for decision. 76. 118-119. The question of the value of the property in dispute and whether it is of a value sufficient to give the Circuit (District) Court jurisdiction is purely one of fact; yet if that question is determined by the court without a jury upon affidavits, upon a writ of error, the Supreme Court is not restricted to errors of law shown by the record, but may re- view the question of fact and determine upon the evidence in the record whether the dismissal for want of jurisdiction was warranted. 7b. 119-123. Where the question of the jurisdiction of the Circuit (District) Court is raised, either by the defendant or by the court on its own motion, the Rule XXXII] RULES OF THE SUPREME COURT 175 court may order the issue tried by the jury, or himself hear and deter- mine it; but if the court determines the question, its action must be in a form that will enable the Supreme Covirt to review its judgment, so far as to determine whether the conclusion of the court was war- ranted by the evidence. lb. 12(K122. Prior to the Act of Mar. 3, 1875, questions going to the jurisdiction of the court could only be raised by a plea in abatement in the nature of a plea to the jurisdiction, and whether the plea presented questions of law or questions of fact when presented for review by an agreed state- ment of facts or upon exceptions to the ruling of the trial court, only questions of law were reviewable on writ of error. lb. 119. In order to bring a case within Clause 3 of sec. 5 of the Act of Mar. 3, 1891, which allowed a direct appeal to the Supreme Court "in any case which involves the construction or application of the Constitution of the United States," the Circuit Court must have construed the Con- stitution or applied it to the case, or have been requested, and have declined or omitted, to construe or apply it. Cornell v. Green, 163 U. S. 75-78, 41 L. ed. 77, Oct. T., 1895. The Act of Feb. 25, 1889, gave the Supreme Court jdrisdiction without regard to the amount involved to review final judgments in the Circuit Courts of the United States in which a question of the jurisdiction of the lower court was involved, but where the decree or judgment did not exceed the sum of five thousand dollars, its review was confined to the question of jurisdiction; Held, that although the record failed to show that the question of jurisdiction was raised in the court below by any plea or motion, yet as the record failed affirmatively to show jurisdiction the Supreme Court was bound to take notice of the defect. Mattingly V. The Northwestern, etc., Co., 158 U. S. 53-57, 39 L. ed. 895. The fifth section of the Act of Mar. 3, 1891, did not authorize a direct appeal to the Supreme Court in a suit involving the jurisdiction of the Circuit Court over another suit previously determined in that court. Carey v. Houston & T. C. R. Co., 150 U. S. 170-180, 37 L. ed. 1044, Oct. T., 1893. If both a question of jurisdiction and other questions were before the court below and a writ of error is allowed in the usual and general form to review its judgment, without defining or indicating any specific question of jurisdiction, the Supreme Court could not take jurisdiction under the first paragraph of sec. 5 of the Act of Mar. 3, 1891 (sec. 238, Judicial Code), as there was no such clear, full and separate statement of a definite question of jurisdiction as would supply the want of a formal certificate under the first clause of that act. Chappell v. United States, IW U. S. 499-508, 40 L. ed. 513, Oct. T., 1895, 176 RULES OF THE SUPREME COURT [Rule XXXII Held, when the rule appUed to writs of error and appeals under sec. 5 of the Act of Mar. 3, 1875, that it was to be invoked only upon writs of error and appeals from orders of the Circuit Courts remanding causes which has been removed from State courts, and from orders dismissing suits because they did not really and substantially involve controversies within the jurisdiction of the Circuit Courts, or because the parties had been improperly made or joined, for the purpose of creating a case cognizable under that act. Poindexter v. Greenhow, 109 U. S. 63-64, 27 L. ed. 861, Oct. T., 1883. If when the Circuit (District) Court dismisses a cause because the necessary diversity of citizenship is not affirmatively shown on the record, the plaintiff in the court below takes the case to the Court of Appeals, its decision will be final. Benjam i n v. New Orleans, 169 U. S. 161-164, 42 L. ed. 702, Oct. T., 1897. An erroneous conclusion of a District Court upon a contention addressed to the merits, of a charge for contempt of court, where juris- diction over the person and subject-matter was obtained, could not be reviewed by the Supreme Court on a certificate under sec. 6, Clause 1 of the Act of Mar. 3, 1891 (sec. 238, Judicial Code). O'Neal v. United States, 190 U. S. 36-38, 47 L. ed. 946, Oct. T., 1902. A contempt proceeding in effect a criminal case is not reviewable by the Supreme Court on appeal or error (but may only be reached by certiorari). 7b. 38. In a case where the jurisdiction of the District Court is in issue a certificate by that court presenting such question for determination to the Supreme Court is required, and the absence of such certificate is fatal. Maynard v. Hecht, 161 U. S. 324-328, 38 L. ed. 181, Oct. T., 1893. The absence of such certificate cannot be helped out by resort to a petition for the writ of error, nor to an assignment of errors, though each of them raises the question of jurisdiction, as the certificate was made an absolute prerequisite by sec. 5 of the Act of Mar. 3, 1891 (now sec. 238, Judicial Code) . Ih. 328. Where the bill in the District Court makes a case within either of the three last clauses of sec. 5 of the Act of Mar. 3, 1891 (sec. 238, Judicial Code), a certificate of the circuit judge raising only the question of the jurisdiction of that court as a court of the United States cannot narrow the jurisdiction of the Supreme Court to review the whole case, and such certificate is unnecessary. Giles v. Harris, 189 U. S. 475-486, 47 L. ed. 912, Oct. T., 1902. If the writ of error is allowed upon the petition of the original plain- tiff asking for a review of a judgment dismissing the action for want of Rule XXXII] RULES OF THE SUPREME COURT 177 jurisdiction, and the only question tried and decided by the court below was a question of jurisdiction (in this case overruling a de- murrer to a plea to the jurisdiction), that question is sufficiently certified where the petition for the writ of error asked only for a review of the question of jurisdiction. Interior Construction Co. v. Gibney, 160 V. S. 217-219, 40 L. ed. 401, Oct. T., 1895. Where the jurisdiction of the court below is in issue and the case is certified to the Supreme Court, the certifioate must be granted during the term at which the judgment or the decree is entered. Colvin v. Jacksonville, 158 U. S. 456-457, 39 L. ed. 1053, Oct. T., 1894. In the disposition of the case the court is confined to the certificate. lb. 459. The certificate set out in full in the case. lb. A direct appeal to the Supreme Court from the District Court will not lie on an issue as to the jurisdiction of the com-t below unless the question of jurisdiction is certified during the term at which the final decree is rendered. Merritt v. President, etc., 167 U. S. 745, 42 L. ed. 1209, Oct. T., 1897. If the jurisdictional question is not certified during the term the defect cannot be remedied by granting leave to remand the cause for correction of the record by the addition of a certificate. The Bayonne, 159 U. S. 687-693, 40 L. ed. 309, Oct. T., 1895. The allowance of an appeal upon the ground that the trial court was without jurisdiction to make the decree without specifying the ques- tion of jurisdiction, and otherwise proceeding as if the appeal were on the whole case, cannot be treated as the certificate required by sec. 5 of the Act of Mar. 3, 1891 (sec. 238, Judicial Code) . lb. 693. As the parties are out of court at the close of the term at which the final judgment or decree is entered and the litigation there is at an end, the trial court has no power to grant a certificate upon the ques- tion of jurisdiction thereafter, and cannot certify nunc pro tunc, if no such certificate was made or intended to be made during the term. Re Lehigh Mining & Mfg. Co., 156 U. S. 322-327, 39 L. ed. 440, Oct. T., 1894. Where the judgment recites that the cause was dismissed for want of jurisdiction and in the order allowing the writ of error, that it was allowed upon the question of jurisdiction, and the bill of exceptions as certified presents the question of jurisdiction as the only question involved, it will be a sufficient certification. 76. 327. If objection to the jurisdiction is made and jurisdiction sustained the defendant may preserve the question by a certificate in the form of a bill of exceptions, and if the final judgment is against him, may at the 12 178 RULES OF THE SUPREME COURT [Rule XXXIII proper time bring the case directly to the Supreme Court on the question of jurisdiction. lb. 328. It is not necessary that the word "certify" shall be formally used; but no mere suggestion that the jurisdiction of the court was in issue will answer. The record must affirmatively show that the trial court sent up for consideration the single definite question of jurisdiction. Shields V. Coleman, 157 U. S. 168-176, 39 L. ed. 663, Oct. T., 1894. It is sufficient that there shall be a plain declaration that the single matter which is by the record sent up to the Supreme Court for de- cision is a question of jurisdiction, and the precise question clearly, fully, and separately stated. 76. 177. The petition and order are set out in the case. Where after the evidence was closed the court declined to submit the case and entered an order that "it appearing that this court has not jurisdiction of the subject-matter of this action it is ordered that this case be and the same is hereby dismissed," upon which judgment a writ of error was sued out, Held, that as the Circuit Court had made no certificate of the question of its jurisdiction the judgment could not be reviewed, and the writ of error was dismissed. Davis v. Rankin, 162 17. S. 290-291, 40 L. ed. 973, Oct. T., 1895. Where the contention is that a District Court of the United States never acquired jurisdiction over the defendant by a valid service of process, as in such case there would be an entire want of jinrisdiction, any judgment rendered therein can be reviewed by the Supreme Court on a writ of error directly sued out to that court. Sheppard v. Adams, 168 U. S. 618-623, 42 L. ed. 603, Oct. T., 1897. Note. The case of Smith v. McKay, 161 U. S. 355, 40 L. ed. 731, dis- tinguished. The Act of Mar. 3, 1891, nowhere imposed a pecuniary limit upon the appellate jurisdiction of the Supreme Court or the Circuit Court of Appeals from a District Court of the United States. The Paquette Habana, 175 U. S. 677, 683, 44 L. ed. 322, Oct. T., 1899. Rule XXXIII — Models, Diagrams, and Exhibits of Material 1. Models, diagrams, and exhibits of material forming ,, , , , , . , , part of the evidence taken in the court Models, etc., furnisnea Sf heS*'' ™ advance bclow, in any case pending in this court, on writ of error or appeal, shall be placed in the custody of the marshal of this court at least one month before the case is heard or submitted. iluieXXXlV] RULES OF THii SUPREMe COURT 179 2. All models, diagrams, and exhibits of material, placed in the custody of the marshal for the in- Removed. by the parties spection of the court on the hearing of a °'"®'^ tearing case, must be taken away by the parties within one month after the case is decided. When this is not done, it shall be the duty of the marshal to notify the counsel in the case, by mail or otherwise, of the requirements of this rule; and if the articles are not removed within a reasonable time after the notice is given, he shall destroy them, or make such other disposition of them as to him may seem best. Promulgated Nov. 13, 1882, 106 U. S. vii; published in 108 U. S. 592; amended October Term, 1885, 1 15 iJ. S. 701. Promulgated December 22, 1911, 222 U. S. Rule XXXIV — Custody of Prisoners on Habeas Corpus 1. Pending an appeal from the final decision of any court or iudge declining to grant the writ of On habeas corpus, the " " 1 i» 1 . custody of prisoner not habeas corpus, the custody of the prisoner disturbed by an appeal. shall not be disturbed. 2. Pending an appeal from the final decision of any court or judge discharging the writ after it has when the writ is dis- been issued, the prisoner shall be re- remanded *to^ ouSy manded to the custody from which he f"-^ ^"i"!' t^«°- was taken by the writ, or shall, for good cause shown, be de- tained in custody of the court or judge, or be enlarged upon recognizance as hereinafter provided. 3. Pending an appeal from the final decision of any court or judge discharging the prisoner, he shall Pending an appeal from be enlarged upon recognizance, with "nef eniarged'm^'recoll surety, for appearance to answer the '"^^'"'^• judgment of the appellate court, except where, for special rea- sons, sureties ought not to be required. Promulgated Mar. 29, 1886; amended May 10, 1886, 117 U. S. 708. Promulgated Dec. 22, 1911, 222 U. S. Decisions The general rules for review in courts of the United States and their practice in habeas corpus cases stated. Whittier v. Tomlinson, 160 V. S. 231-238, 40 L. ed. 411, Oct. T., 1895. 180 RULES OF THE SUPREME COURT [Rule XXXIV An order of a District Court in a habeas corpus case is reviewable upon appeal and not by writ of error. Rice v. Ames, 180 U. S. 371- 374, 45 L. ed. 581, Oct. T., 1900. Sec. 752, Rev. Stats. {U. S. Comp. Stats. 1901, p. 592), gives power to the justices of the Supreme Court and judges of the Circuit and District Courts to grant writs of habeas corpus, but sec. 764, Rev. Stats. (U. S. Comp. Stats. 1901, p. 595), as amended by the Act of Mar. 3, 1885, gives an appeal to the Supreme Court in habeas corpus cases only from the final decision of a Circuit (District) Court. A decision of a judge sitting as a judge, and not as a court, is not appealable. Carper v. Fitzgerald, 121 U. S. 87-89, 30 L. ed. 883, Oct. T., 1886. An order that the papers and the judge's order thereon be filed and recorded in the Circuit (District) Court does not make the decision of a judge, sitting as judge, a decision of the court. lb. 89. The purpose of Rule 34 is to regulate proceedings under sees. 863, 864, Rev. Stats. (U. S. Comp. Slats. 1901, pp. 661, 663), made under powers conferred by sec. 765, Rev. Stats. {U. S. Comp. Slats. 1901, p. 596). 76.89. Where the record shows that while the original order of discharge was made at chambers and being an order of the circuit judge only would not be appealable, yet the final order discharging the prisoner from custody was the order of the court at a stated term, an appeal therefrom lies. Harkrader v. Wadley, 172 U. S. 148-162, 43 L. ed. 404, Oct. T., 1898. Although the circuit judge, upon dismissal of a petition for a writ of habeas corpus for want of jurisdiction, signs a certificate of that fact, upon an appeal from the order, the Supreme Court is not limited to the question of jurisdiction as in ordinary suits, as sec. 761, Rev. Stats., ({/. S. Comp. Slats. 1910, p. 594), is applicable to the Supreme Court. Storti v. Massachusetts, 183 U. S. 138-143, 46 L. ed. 124, Oct. T., 1901. Where a prisoner is in custody by virtue of a State statute a writ of habeas corpus will not be issued unless such statute is in conflict with the Constitution of the United States. Andrews v. Swartz, 1,56 17. S. 272-275, 39 L. ed. 423, Oct. T., 1894. Where the applicant for the writ of habeas corpus is alleged to be restrained in violation of the Constitution or some law or treaty of the United States, the appeal from a final decision of the District Courts is directly to the Supreme Court. Craemer v. Washington, 168 U. S. 124^128, 42 L. ed. 408, Oct. T., 1897. If the restraint in such case is by any State court or by or under the authority of any State, further proceedings cannot be had against him, pending the appeal. lb. 128. feule XXXIV] BULES OF THE SUPREME COURT 181 No order staying proceedings under State authority is made a con- dition of the stay granted by sec. 766, Rev. Stats. {U. S. Comp. Stats. 1901, p. 597) , while proceedings on appeal are being determined; the bare pendency of the appeal has the effect to stay proceedings in the State court. Lambert v. Barrett, 159 U. S. 660-662, 40 L. ed. 297, Oct. T., 1895. Appeals from decrees of Circuit Courts in habeas corpus cases could not, after the Act of Mar. 3, 1891, be taken directly to the Supreme Court except in the class of cases mentioned in sec. 5 of that act. Cross V. Burke, 146 U. S. 82-88, 36 L. ed. 899, Oct. T., 1892. The history of the legislation by Congress upon the subject of habeas corpus set forth. lb. 82. An appeal may be direct to the Supreme Court where the constitu- tionaUty of the statute under which the complaint upon which the prisoner is held is founded, is drawn in question; and where an appeal or writ of error was taken direct to the Supreme Court under sec. 5 of the Act of Mar. 3, 1891, in a case where the constitutionality of a law of the tJnited States was drawn in question, that court acquired juris- diction of the entire case and all questions involved in it. Horner v. United States, 143 U. S. 670-576, 36 L. ed. 269, Oct. T., 1891. The Supreme Court cannot review the decisions of the Supreme Court of the District of Columbia on habeas corpus. Cross v. Burke, 146 U. S. 82-88, 36 L. ed. 898, Oct. T., 1892, reversing Wales v. Whitney, 114 U. S. 564, 29 L. ed. 277, Oct. T., 1884. A different rule applies as to the review of the final orders of the territorial Supreme Courts on habeas corpus, under sees. 702 (1909, Rev. Stats., U. S. Comp. Stats. 1901, pp. 571, 715). Gonzales v. Cunning- ham, 164 U. S. 612-618, 41 L. ed. 674, Oct. T., 1896. The Judiciary Act of Mar. 3, 1891, did not do away with the special provision of sec. 1909, Rev. Stats., (U. S. Comp. Stats., 1901, p. 715), allowing appeals from the decisions of territorial courts ujjon writs of habeas corpus involving questions of personal freedom. lb. 619. That a writ of habeas corpus cannot be used to perform the office of a writ of error is applicable as well to appeals from courts below as to original writs. 76. 621. A proceeding in habeas corpus is a civil and not a criminal proceed- ing and, being only available to assert the civil right of personal liberty, the matter in dispute has no money value. Where the statute allow- ing an appeal limits the right to causes in which there is a pecuniary matter in dispute an appeal in a habeas corpus proceeding will not He. 7b. 618. A habeas corpus case not being one in which the matter in contro- versy involves a money value, might not be appealed from the Circuit 182 RULES OF THE SUPREME COURT [iRule XXXV Court of Appeals under sec. 6 of the Act of Mar. 3, 1891, but was made final in the Covat of Appeals and reviewable on certiorari. Lau Ow Bew V. United States, 144 U. S. 47-58, 36 L. ed. 345, Oct. T., 1891. The statement in Ex parte Chetwood, 165 U. S. 443-462, 41 L. ed. 788, that judgments in proceedings in contempt are not reviewable on appeal or error to the Supreme Court, was made with reference to independent proceedings for contempt in the Federal courts, being considered criminal proceedings; it does not apply to appeals from the highest court of a State dismissing a writ of habeas corjms issued by one of its judges, as against a right specially set up and claimed by a person in custody for contempt, that he is denied his liberty in con- travention to the Constitution, laws, or a treaty of the United States. Tinsley v. Anderson, 171 U. S. 101-105, 43 L. ed. 96, Oct. T., 1897. Rule XXXV — Assignment of Errors 1. Where an appeal or a writ of error is taken from a District Court direct to this court, under Assignment of error under i << a j ■ sec. 238, Act of Mar. 3, sec. 238 01 the act entitled An act to 1911, filed witli petition . i i i i for writ of error or codiiv, revise and amend the laws relat- appeal, — ^Wliat to con- . , .,.. itit in tain.— Forms part of ing to the ludiciarv," approvcd March 3, transcript to be printed. , , , . .„. —Errors, not assigned, 1911, chapter 231, the plaintiff in error or appellant shall file with the clerk of the court below, with his petition for the writ of error or appeal, an assignment of errors, which shall set out separately and particularly each error asserted and intended to be urged. No writ of error or appeal shall be allowed until such assignment of errors shall have been filed. When the error alleged is to the admission or to the rejection of evidence, the assignment of errors "shall quote the full substance of the evidence ad- mitted or rejected. When the error alleged is to the charge of the court, the assignment of errors shall set out the part re- ferred to totidem verbis, whether it be in instructions given or in instructions refused. Such assignment of errors shall form part of the transcript of the record, and be printed with it. When this is not done counsel will not be heard, except at the request of the court; and errors not assigned according to this rule will be disregarded, but the court, at its option, may notice a plain error not assigned. 2. The plaintiff in error or appellant shall cause the record Rule XXXV] RULES OF THE SUPRExMB COURT 183 to be printed, according to the provisions of sees. 2, 3, 4, 5, 6 and 9, of Rule 10. Clause 1 amended December 22, 1911. Promulgated as original Rule 36, Nov. 3, 1890, 137 V, 8. 709; amended May 11, 1891, 139 U. S. 705, 34 L. ed. 1128. Ftomulgated December 22, 1911, 222 U. S. Decisions Even if a party might be entitled to come directly to the Supreme Court under sec. 6 of the Act of 1891 (sec. 238, Judicial Code), yet if he does not do so, and carries his case to the Court of Appeals, he must abide by the judgment of that court in a case in which such judgment is final. Carey Mfg. Co. v. Acme Clasp Co., 187 U. S. 427-428, 47 L. ed. 245, Oct. T., 1902. When the jurisdiction of the Circuit (District) Court is invoked solely on the ground of diversity of citizenship two classes of cases can arise: one in which the questions set out in sec. 5 of the Act of 1891 (sec. 238, Judicial Code), appear in the course of the proceedings; and one in which other Federal questions appear. Cases of the first class may be taken to the Supreme Court directly, or to the Circuit Court of Appeals, in which case its decision is final. Cases of the second class must be taken to the Court of Appeals and its judgment therein is final. Ayers v. Polsdorfer, 187 U. S. 585-590, 47 L. ed. 315, Oct. T., 1902. To determine whether the case was directly appealable under sec. 5 of the Act of Mar. 3, 1891 (sec. 238, Judicial Code), the Supreme Court looked into the record, without regard to any certificate given by the trial judge. Cosmopolitan Mining Co. v. Walsh, 193 U. S. 460-468, 48 L. ed. 752, Oct. T., 1903. Held there was nothing in the Act authorizing a certificate as to whether or not a case was of the class, made directly appealable by sec. 5 of the Act of Mar. 3, 1891 . lb. 468. The object of the rule requiring an assignment of errors stated. Phillips, etc., Co. v. Seymour, 91 U. S. 646-648, 23 L. ed. 342, Oct. T., 1875. An assignment of errors cannot be availed of to import questions into a cause which the record does not show were raised in the court below and rulings asked thereon, so as to give jurisdiction to the Supreme Court under sec. 5 of the Act of Mar. 3, 1891 (sec. 238, Judicial Code). Ansboro v. United States, 159 U. S. 695-698, 40 L. ed. 311, Oct. T., 1895. While an assignment of errors cannot import questions into a cause which the record does not show were raised and passed on in the court 184 RULES OF THE SUPREME COURT [Rule XXXVI below, the court may refer to such assignment to ascertain the con- tentions of plaintiff in error. Missouri P. Ry. Co. v. Fitzgerald, 160 U. S. 556-575, 40 L. ed. 540, Oct. T., 1895. Where the judgment of the Circuit Court dismissing a suit and the prior proceedings clearly showed on the record that the only matters tried and determined were demurrers to pleas to the jurisdiction, and that the petition upon which a writ of error was allowed asked only for a review of such judgment of dismissal for want of jurisdiction, no bill of exceptions or formal certificate in respect of the matter decided was required. Petri v. Creehnan Lumber Co., 199 U. S. 487-492, 50 L. ed. 285, Oct. T., 1905. See Rule 21, anie, and Circuit Court of Appeals Rule 11, infra, and oases cited under Jurisdiction of tiie Suprenae Court. Briefs of counsel and oral arguments in the court below form no part of the record and are not adequate to create a Federal question, when the record does not disclose that any Federal question was set up and claimed in any proper manner in the court below. Zadig v. Baldwin, 166 U. S. 485-488, 41 L. ed. 1088, Oct. T., 1896. Rule XXXVI — Appeals and Writs of Error from District Courts 1. An appeal or a writ of error from a District Court direct „ , „„„ , „.„ to this court, in the cases provided for in Under sees. 238 and 2o2, ' * Judicial Code, appeal or &§ 238 and 252 of the act entitled, "An writ of error allowed in vacation by district judge act to codifv, revise, and amend the laws within his distnct. , , . , relating to the judiciary," approved March 3, 1911, chapter 231, may be allowed, in term time or in vacation by any justice of this court, or by any circuit judge assigned to the District Court, or by any district judge within his district, and the proper security be taken and the citation signed by him, and he may also grant a supersedeas and stay of execution or of proceedings, pending such writ of error or appeal. 2. Where such writ of error is allowed in the case of a conviction of an infamous crime, or in any other criminal case in which it will lie under § 238, the District Court, or any judge thereof, or any justice of this court, or any circuit judge assigned to the District Court, shall have power, after the citation is served, to admit the accused to bail in such amount as may be fixed. Promulgated May 11, 1891, 139 V. S. 706; amended December 22, 1911, 222 U. S. Amended Feb. 26, 1912. Rule XXXVI] RULES OF THE SUPREME COURT 185 Decisions The question of jurisdiction which the statute permits to be certified to the Supreme Court directly must be one involving the jurisdiction of the Circuit (District) Court as a Federal court and not simply its general^ authority as a judicial tribunal to proceed in harmony with ^established rules of practice governing courts of concurrent jurisdiction as between each other. Louisville Trust Co. v. Knott, 191 U. S. 225-233, 48 L. ed. 162, Oct. T., 1903. HeM the question of jurisdiction which the Act of Mar. 3, 1891, provided might be certified to the Supreme Court directly, must be one involving the jiu'isdiction of the Circuit Court as a Federal Court. The appeal is not directly to the Supreme Court upon such certificate where the jurisdiction of the Circuit (District) Court is only questioned in respect of its general authority as a judicial tribunal, and not in re- spect of its power as a court of the United States. Bache v. Hunt, 193 U. S. 523-525, 48 L. ed. 776, Oct. T., 1903. Although there is an allegation of diverse citizenship in the bill, if the jurisdiction of the District Court is invoked on constitutional grounds the jurisdiction of the Supreme Court does not depend upon the ques- tion whether the right claimed under the Constitution has been upheld or denied in the court below, and its review is not Umited to the con- stitutional question, but includes the whole case. Holder v. Aultman M. & Co., 169 U. S. 81-88, 42 L. ed. 671, Oct. T., 1897. In a cause where the jurisdiction of the Circuit Court rested solely on the ground that the cause of action arose under the Federal Constitu- tion, an appeal was taken to the Supreme Court, although an appeal had then been perfected to the Court of Appeals and the case there docketed, and that court having rendered a decree therein an appeal was taken from such decree to the Supreme Court and both cases sub- mitted as one. Held, the decree of the Court of Appeals must be re- versed for want of jurisdiction; to review that court's decree on the merits would be to allow two appeals. Union & Planters' Bk. v. Mem- phis, 189 U. S. 71-74, 47 L. ed. 714, Oct. T., 1902. Where an appeal is taken directly to the Supreme Court from so much of the decree of the District Coittt as denies the relief prayed on Federal grounds, the other party may take a cross-appeal direct to the same court as to any and all matters in such decree by which he deems himself aggrieved, and if he fails to take such cross-appeal the correctness of the decision against him will be presumed. Field v. Barber Asphalt Co., 194 U. S. 61S-621, 48 L. ed. 1153, Oct. T., 1903. Where there is room for doubt whether the appeal should be directly to the Supreme Court or to the Court of Appeals, and an appeal is first 186 RULES OF THE SUPREME COURT [Rule XXXVI taken to the Supreme Court and afterwards to the Court of Appeals, such action is not a waiver of the right of appeal to the proper court. PuUman, etc., Co. v. Central T. Co., 171 U. S. 138-145, 43 L. ed. 112, Oct. T., 1897. The case of Pullman Car Co. v. Central Transp. Co., 171 U. S. 138, distinguished, and held that where the record discloses that there are two writs of error, one to the Court of Appeals and one to the Supreme Court, the latter will be dismissed on motion; that the party against whom a judgment is rendered in the trial court must elect whether to go to the Supreme Court or the Court of Appeals. Columbus Con- struction Co. V. Crane Co., 174 U. S. 600-602, 43 L. ed. 1103, Oct. T., 1898. An soppeal to the Supreme Court lies from a judgment of the Circuit Court of Appeals entered upon the judgment of the District Court as a court of bankruptcy, determining the title to property as between a trustee in bankruptcy and an adverse claimant. Hewit v. Berlin Machine Works, 194 U. S. 296-300, 48 L. ed. 987, Oct. T., 1903. Held, a decree of the Circuit Court of Appeals was not made final by sec. 6 of the Act of 1891 (sec. 128, Judicial Code), where the jurisdiction of the Circuit Court was invoked by a foreign State, as that act did not include foreign States in the term "aliens." Columbia v. Cauca Co., 190 U. S. 624-526, 47 L. ed. 1162, Oct. T., 1902. If the District Court has jurisdiction of the parties and of the matters in dispute the fact that the remedy of the complainant is at law, rather than in equity, raises no question of jurisdiction within the meaning of sec. 5 of the Act of Mar. 3, 1891 (sec. 238, Judicial Code). If the District Court in such a case commit an error, it can only be remedied by an appeal to the Circuit Court of Appeals. Smith v. McKay, 161 U. S. 355-358^ 40 L. ed. 732, Oct. T., 1895. The Supreme Court has power to issue a writ of supersedeas unSer sec. 716, Rev. Stats. ( U. S. Corny. Stats. 1901, p. 580), as a writ necessary for the exercise of its jurisdiction and agreeable to the usages and prin- ciples of law. This is equally true of the Circuit Court of Appeals, un- der sec. 12 of the Act of Mar. 3, 1891, now sec. 262, Judicial Code. Re McKenzie, 180 U. S. 636-549, 46 L. ed. 663, Oct. T., 1900. An order granting a supersedeas, or a writ of supersedeas issued on such order made by a judge of the Circuit Court of Appeals is not void. The order granting a supersedeas and a writ thereon are effective, though the citation and bond have not been filed in the clerk's ofiice. lb. 550. Any justice of the Supremo Court in or out of court may allow a writ of error to the District Courts of the United States, or to the courts of RuieXXXVI] RULES OF THE SUPREME COURT 187 the several States, sign the citation, and take the requisite security for prosecution, and grant a suTperaedeas when the writ itself does not operate as a stay of proceedings, as it does if filed and security given within sixty days after the judgment complained of. Hudson v. Parker, 156 U. S. 277-283, 39 L. ed. 426, Oct. T., 1894. Note. See Commissioners v. Gorman, 19 Wall. 661, cited under Rule 29, ante. Under the Federal statutes a person accused of crime may be ad- mitted to bail as well after conviction, pending a writ of error, as before trial. 76.285. Held, the &st clause of the rule embraced all cases of which the Supreme Court had appellate jurisdiction under the Act of 1891. 76. 284. Although Clause 2 of old Rule 36 in terms limited the power to the justice allotted to the circuit to admit to bail, Held, that any justice might admit to bail independently of any rule of court, which authority is recognized by Rule 36. 76.287. Such justice might either approve the bond or fix the amount and direct the court below to pass upon its sufficiency, or leave the bond to be dealt with by such court or judge. 76. 287. Held, under the Act of Mar. 3, 1891, a writ of error from the Supreme Court to the Circuit Court in the case of a conviction for an infamous crime, not capital, was a matter of right without security given, and, under sec. 999, Rev. Stats., {U. S. Comp. Stats. 1901, p. 712), the citation may be signed by any justice of the Supreme Court and supersedeas granted (not only by the court under sec. 716, U. S. Comp. Stats., 1901, p. 580, but by any justice thereof under sec. 1004, Reu. Stats.}. In re Classen, 140 U. S. 200-205, 35 L. ed. 411, Oct. T., 1890. As no security is required in a criminal case a supersedeas may be obtained by lodging a copy of the writ of error in the clerk's ofiice, where the record remains within sixty days, Sundays exclusive, after the rendition of judgment, provided the justice who signs the citation directs that the writ shall operate as a supersedeas, as he may do when no security is required or taken. 76. 209. Rule 36 adopted and promulgated to remove all doubts and also to provide for admitting to bail after citation is served. 76. 209. Note. Jurisdiction of criminal cases not capital was withdrawn from the Supreme Court by the Act of Jan. 20, 1897 (29 Stat. L. 492). Where the Circuit Court of Appeals commits an error in taking jurisdiction and determining a case it is not for the District Court to refuse to carry out its mandate. If the Circuit Court of Appeals erred, or its judgment can be held void the appropriate remedy is by certiorari from the Supreme Court to that court and not by direct appeal from the District Court to the Supreme Court after compliance with the 188 RULES OF THE SUPREME COURT [Rule XXXVlI mandate of the Circuit Court of Appeals. Aspen Mining, etc., Co. v. Billings, 150 U. S. 31-37, 37 L. ed. 989. Rule XXXVII — Cases from Circuit Courts of Appeals 1. Where, under § 239 of the act entitled "An act to Certificate for instfuc- codify, levise, and amend the laws relat- judwarcode, t'o'confdn ing to the judiciary," approved March 3, a statement of the facts, jg^j^ chapter 231, a Circuit Court of Ap- peals shall certify to this court a question or proposition of law, concerning which it desires the instruction of this court for its proper decision, the certificate shall contain a proper statement of the facts on which such question or proposition of law arises. 2. If apphcation is thereupon made to this court that the Whole record must be wholc record and cause may be sent up to part of any apphcation ., . ., . , ^. ^, ^ , . for its consideration. it for its Consideration, the party makmg such application shall, as a part thereof, furnish this court with a certified copy of the whole of said record. 3. Where an apphcation is submitted to this court for a Certified copy of tran- Writ of Certiorari to review a decision of rifi?edonlppiSotfo; a Circuit Court of Appeals or any other certiorari to review. ^^^^^^ j^ gj^g^jj ^^ necessary for the peti- tioner to furnish as an exhibit to the petition a certified copy of the entire transcript of record of the case, including the proceedings in the court to which the writ of certiorari is asked to be directed. The petition shall contain only a summary and short statement of the matter involved and the general reasons relied on for the allowance of the writ. A failure to comply with this provision will be deemed a sufficient reason for denying the petition. Thirty printed 30 copies of petition and copics of such petition and of any brief brief reqmre the decree be modified so as to direct the dismissal of the bill, which motion being denied such appellee took an appeal to the Supreme Court, and subsequently the Circuit Court sua sponte dismissed complainant's biU, and allowed an appeal to the Court of Appeals, the Supreme Court granted a certiorari to bring up the last cause and considered both appeals to- gether. W. U. Tel. Co. V. Penn. R. Co., 195 U. S. 640-547, 49 L. ed. 315, Oct. T., 1904. Although the Court of Appeals may be limited upon a second appeal to errors committed after its first mandate, no such limitation applies to the Supreme Court, when in the exercise of its supervisory powers it issues a writ of certiorari to the Court of Appeals to bring up the whole record. Upon such writ the entire case is before the Supreme Court for examination. Panama R. Co. v. Napier Shipping Co., 166 U. S. 280-284, 41 L. ed. 1005, Oct. T., 1896. Where the Circuit Court of Appeals affirmed a judgment on the ground that the defenses of plaintiff in error in the trial court were of an equitable nature where all the parties in the trial court had treated the defenses as legal, and no such question had been raised or submitted to the Circuit Court of Appeals held: plaintiff in error has been denied his day in court by such affirmance. Lutcher and Moore L. Co. v. Knight, 217 U. S. 257-267, 54 L. ed. 761. Where the Circuit Court of Appeals has failed to consider the case before it, where it had jurisdiction, upon certiorari to that court, the case will be remanded to that coiu-t that its duty may be performed. lb. By the Judiciary Act of 1891 sec. 6 (sec. 240, Judicial Code), upon certiorari the entire record is before the Supreme Court, with power t3 decide the case as it was presented to the Circuit Court of Appeals. lb. On certiorari to the Circuit Court of Appeals to review its judgment the Supreme Court has the entire record before it, with power to review the action of the Court of Appeals as well as direct such disposition of the case as that court might have done when hearing the writ of error sued out for its review of the action of the trial court. Dilk v. St. Louis & S. F. R. Co., 220 U. S. 680-588, 65 L. ed. 696. Where on certiorari to the Circuit Court of Appeals to review the judgment of that court the Supreme Court finds the trial court com- Rule XXXVII] RULES OF THE SUPREME COURT 193 mitted no error it may reverse the judgment of the Circuit Court of Appeals and affirm the judgment of the trial court. lb. Held the provision of sec. 6 of the Act of Mar. 3, 1891, that appeals and writs of error must be sued out within one year, applied solely to writs of error and appeals to the Supreme Court from the Circuit Court of Appeals. To construe the section as relating to or controlling the re- view by error or appeal by the Supreme Court of the judgments or decrees of the District Courts would disregard the plain letter of the statute. AUen v. So. Pacific R. Co., 173 U. S. 479-486, 43 L. ed. 777, Oct. T., 1898. Note. Sec. 241, Judicial Code, has omitted the last clause of sec. 6. Act 1891, limiting the time for taking an appeal. To avoid any question of the jurisdiction of the Supreme Court where a writ of error had been sued out to review the judgment of the Circuit Court of Appeals in a cause where one party contended the juris- diction of the Circuit Court depended alone on diverse citizenship, and the other party contended there was a Federal question presented in the complaint, so that it was uncertain whether the judgment of the Court of Appeals was final, where there had been protracted litigation involving a large amount, the writ of certiorari was allowed to bring up the judgment of the Court of Appeals for review. Montana Min. Co. V. St. Louis M. & M. Co., 204 U. S. 204, 51 L. ed. 444. Held, the only instance in which certiorari was named in the Federal statutes as the writ for the removal of cases from a lower to a higher court was the authority given to the Supreme Court by the. Act of Mar. 3, 1891, to bring up cases from the Circuit Courts of Appeal by certiorari. Whitney v. Dick, 202 U. S. 132-138, 50 L. ed. 965, Oct. T., 1905. The Supreme Court has jurisdiction to issue certiorari to the Circuit Court of Appeals under sec. 716, Rev. Stats. {U. S. Comp. Stat. 1901, p. 680, sec. 262, Judicial Code). Writ issued in a case of original applica- tion to the Circuit Court of Appeals for mandamus to a district judge to proceed in a cause in the Circuit Court in which jurisdiction did not depend on citizenship so that the judgment of the Circuit Court of Appeals was not final. McClellan v. Garland, 217 U. S. 268-277, 54 L. ed. 765. Upon a petition for the writ of certiorari or mandamus to review a decision of the Court of Appeals dismissing a writ of error for alleged want of jurisdiction, and a rule to show cause issued, the return to the rule was directed to stand as a return to the writ (ordered to issue) and the record being before the Supreme Court upon the return to the 13 194 RULES OF THE SUPREME COURT [Rule XXXVIII rule, the judgment of the Court of Appeals was reversed upon such return and record. American Sugar Refining Co. v. New Orleans, 181 U. S. 277-283, 45 L. ed. 862, Oct. T., 1900. The exceptional power to review upon certiorari a decision of the Cir- cuit Court of Appeals rendered on an appeal from an interlocutory order, is sparingly exercised. Denver v. New York Trust Co., 229 U. S. 123. RxJLE XXXVIII — Interest, Cost, and Fees The provisions of Rules 23 and 24 of this court, in regard to interest and costs and fees, shall apply to writs of eri^or and appeals and reviews under the provisions of sees. 238, 239, 240 and 241 of the act entitled "An act to codify, revise, and amend the laws relating to the judiciary," approved March 3, 1911, chapter 231. Promulgated May 11, 1891, 139 U. S. 707. Amended Deo. 22, 1911, 222 U. 8. Rule XXXIX — Mandates Mandates shall issue as of course after the expiration of thirty days from the day the judgment or decree is entered, unless the time is enlarged by order of the court, or of a justice thereof when the court is not in session, but during the term. Promulgated Nov. 25, 1895, 159 V. S. 709, 40 L. ed. 1134. Amended Dee. 22, 1911, 222 U. S. Decisions The Supreme Court will determine whether the court below haa rightly apprehended and executed its mandate. To ascertain the true intention of the decree and mandate, the decree of the court below and of the Supreme Court and the proceedings will be considered. Mitchell V. United States, 15 Pet. 52-84, 10 L. ed. 670, Jan. T., 1841. Upon all the proceedings to carry into effect the decree of the Su- preme Court, the original proceedings are always before the court below, so far as they are necessary to determine any new points or rights in controversy between the parties which were not terminated by the original decree. The Santa Maria, 10 Wheat. 431-442, 6 L. ed. 361, Feb. T., 1825. The trial court is bound by the judgment or decree as the law in the case and must carry it into execution according to the mandate, RuleXXXIX] HULES OF THE SUPREME COURT 195 It must not vary it, or examine it for any other purpose than execu- tion, or give any other or further relief, or review it on any matter de- cided on appeal for error apparent, or intermeddle with it further than to settle so much as has been remanded. Sibbald v. United States, 12 Pet. 488r492, 9 L. ed. 1169, Jan. T., 1838. If the mandate is not executed, a mandamus or other appropriate writ will issue. /6. 493. Where the final decree or judgment rendered by the Supreme Court requires some further act, it cannot issue an execution, but must send a special mandate to the court below to award it. lb. 493. The Supreme Court has no power to review its decisions whether at law or in equity. lb. 492. Where the mandate issued by the clerk is not in conformity with the decree, a new mandate according to the decree will be granted at a subsequent term, and it requires no new order or decree modifying that which has been rendered. lb. 496. It is the duty of the trial court to carry the mandate into execution even though its jurisdiction does not appear in the pleadings. Magwire V. Tyler, 17 Wall. 253-284, 21 L. ed. 683, Dec. T., 1873. If the court below entertains doubts as to the construction and meaning of the mandate of the Supreme Court it may suspend its execution until the decision of that court had upon motion or by appeal. Perkins v. Foumiquet, 14 How. 329-330, 14 L. ed. 442, Dec. T., 1852. The mandate of the Supreme Court must be the guide to govern the court below in executing it. Where there is uncertainty or ambiguity in the mandate the court below has the right to resort to the opinion d«livered at the time to assist in explaining it. West v. Brashear, 14 Pet. 51-54, 10 L. ed. 352, Jan. T., 1840. When a mandate is sent to the com:t below no appeal will lie from any order or decision of that court until it has passed its final decree in the case. If that court does not proceed to execute the mandate, or disobeys or mistakes its meaning, the party aggrieved may at any time by a motion for a mandamus, bring up for correction the errors or omissions of the inferior court. United States v. Fossatt, 21 How. 445-446, 16 L. ed. 186, Dec. T., 1858, When the court below executes the mandate in accordance with its terms without further action, no review can be had. United States V. Fremont, 18 How. 30-36, 15 L. ed. 303, Dec. T., 1855. If an appeal is taken the Supreme Court will, on application of ap- pellee, examine the decree entered, and if it conforms to the mandate 196 RULES OF THE SUPREME COURT [Rule XXXIX dismiss the case with costs; if it does not, it will remand the case with appropriate directions for the correction of the error. Stewart ». Salamon, 97 U. S. 361-362, 24 L. ed. 1045, Oct. T., 1878. A subsequent appeal brings up for consideration in the appellate court only the proceedings of the trial court after the mandate returned to it. Supervisors v. Kennicott, 94 U. S. 498, 24 L. ed. 260, Oct. T., 1876. Where in an equity cause the decree ordered the cause to be re- manded "with directions to award a new trial," Held, that as in a suit in equity there can be no new trial, and as mandates are to be inter- preted according to the subject-matter of the proceedings in the ap- pellate court, the words "new trial" meant such further proceedings as were necessary to carry into effect what the appellate court had determined. lb. 499. A second appeal lies only when the court below in carrying out the mandate of the Supreme Court is alleged to have committed some error. Corning v. Troy I. & N. Factory, 15 How. 451-466, 14 L. «d. 776, Dec. T., 1853. After a cause has been decided upon its merits in the Supreme Court, remanded to the court below, and then brought up on a second appeal, it is too late to allege that the court had not jurisdiction to try the first appeal. Washington Bridge Co. v. Stewart, 3 How. 413-425, 11 L. ed. 664, Jan. T., 1845. The reason for this judgment stated to be, that to grant the motion to dismiss the case in the court below would be equivalent to a judg- ment that the final decree of the Supreme Court could be reviewed, when the law points out no method by which that can be done. lb. 425. The Supreme Court held that after a cause had been sent back to the Circuit Court upon a final decree upon the merits in the Supreme Court, the Circuit Court was bound to carry the decree into execution though that court then discovered that the cause was not within its jurisdiction. Sellern's Executors v. May's Executors, 6 Cranch, 267. Obeying the mandate of the Supreme Court is not discretionary with the District Court, hence cases which hold that an appellate court will not direct in what manner the discretion of an inferior tribunal shall be exercised have no application upon a petition for mandamus to compel the District Court to obey the mandate sent it. Gaines v. Caldwell, 148 V. S. 228-239, 37 L. ed. 435, Oct. T., 1892. Mandamus allowed though the question might have been raised by a new appeal. 76. 243. RuleXXXIXj RULES OF THE SUPREME COURT 197 A decree was passed dismissing the bill of complaint June 3, 1836. On Oct. 1, 1836, upon petition stating that the complainant had died after the suit was decided, the executrix was permitted to become a party and took an appeal to the Supreme Court which reversed the decree with a mandate directing further proceedings. Thereafter in the court below the defendant sought to file affidavits and then an answer setting up that the complainant died before the decree appealed from, which the judge refused to receive or to suffer any notice taken of the proceedings upon the records of the court. Upon petition for mandamus. Held, on the authority of Sellern's Exrs. v. May's Exrs., 6 Cranch, 267, that the facts offered to be proved formed no defense against the execution of the mandate, and the Circuit Court was bound to carry into execution the decree rendered in the cause by the Supreme Court. Ex parte Story, 12 Pet. 339-444, 9 L. ed. 1110, Jan. T., 1838. Section 24 of the Judiciary Act of 1789 governs (governed) the practice in cases brought up for review in the Supreme Court. The law directs that a mandate shall be sent down to have the judgment entered as final in the lower court when it is for the defendant below. Ex parte Dubuque & P. R. Co., 1 Wall. 69-73, 17 L. ed. 515, Dec. T., 1863. Where the Supreme Court had reversed a judgment of the Circuit Court in an ejectment suit and remanded the cause with a mandate to enter judgment for the defendant below, but because by the law of the State a second trial was allowed for recovery of real estate, the court below received affidavits showing new facts and granted a new trial, the Supreme Court by mandamus ordered it to vacate the rule for a new trial, because its authority extended only to executing the mandate. 76. 73. The affirmance of the judgment of a subordinate court in general terms, nothing being said about interest, is to be taken as a declaration that no interest is to be allowed; thereupon it is the duty of the sub- ordinate court to enter its judgment in strict accordance, and not to add to it the allowance of interest. Ex parte Washington and G. R. Co., 140 U. S. 91-94, 35 L. ed. 341, Oct. T., 1890. Where interest was improperly allowed after mandate sent down, which amounted to a sum insufficient for appeal, mandamus held to lie to correct the error, there being no other adequate remedy and the action of the lower court not being discretionary. lb. 95. Where the merits of a case have been once decided on appeal, the District Court has no authority, without express leave of the Supreme Court, to grant a rehearing or review, or permit new defenses on the merits to be introduced in an answer by amendment. Re Potts, 166 U. S. 263-267, 41 L. ed. 995, Oct. T., 1896. 198 RULES OF THE SUPREME COURT [Rule XXXIX An appellate court may not remand a cause to allow an amendment asserting a new and distinct ground of relief, constituting a departure from the original theory of the case, and at the same time direct that the cause be not reopened so as to deprive the defendants of all hearing on such new ground of relief. Warner v. Godfrey, 186 U. S. 365-377, 46L.ed. 1208, Oct. T., 1901. Where upon bill and answer to which exceptions were sustained and upon defendant declining to plead further a final decree was en- tered for complainant and by the opinion and mandate the cause was reversed and remanded to the Circuit Court for further proceedings not inconsistent with the opinion of the Supreme Court, Held, the com- plainant had a right to file a replication, but the Circuit Court in its discretion might, after remand, allow amendments of the pleadings. Re Sanford Fork & Tool Co., 160 V. S. 247-259, 40 L. ed. 417, Oct. T., 1895. Where a decision has been, had on appeal, a bill of review for newly discovered evidence wiU not lie unless the right is reserved in the decree of the appellate court, or permission be given on application to that court directly. Southard v. Russell, 16 How. 570-571, 14 L. ed. 1062, Dec. T., 1853. State courts have no power to deny the jurisdiction of the Supreme Court in a case brought there for decision and sent back to the State court with its mandate. Where it is clear that the State court from its view of the law will not carry into effect the directions of the Supreme Court as given in its mandate, that court wiU proceed to a final decision of a cause brought to it by writ of error from the State court and will award execution to the prevailing party. Magwire v. Tyler, 17 WaU. 253-290, 21 L. ed, 584-586, Dec. T., 1872. This power is conferred as to causes once remanded by sec, 25 of the Judiciary Act of 1789, and as to causes not before remanded by the Act of Feb. 5, 1867 (14 Stat. L. 387). 76. 290. In this case the State court on filing the mandate refused to proceed with the cause because the proceedings had been equitable, and by the State practice the right adjudged by the Supreme Court was held enforceable only by an action at law. The final decree entered by the Supreme Court is printed in full, p. 294, 21 L. ed. 586. In causes remanded to the Cireuit (District) Courts if the mandate be not correctly executed a writ of error or appeal is the proper remedy. Martin v. Hunter's Lessee, 1 Wheat. 304-354, 4 L. ed. 109, Feb. T., 1816. The 25th section of the Judiciary Act of 1789 gave the same effect to writs of error from State Courts as of the Circuit Courts. lb. Rule XXXIX] RULES OF THE SUPKEME COURT 199 In this case the Court of Appeals of Virginia on receipt of the mandate of the Supreme Court refused to obey, it and entered judgment that sec. 25 of the Judiciary Act was unconstitutional, and on writ of error the Supreme Court reversed the judgment of the Coui't of Appeals and made a final judgment. The court whose judgment has been reversed or affirmed by the Supreme Court cannot rejudge that reversal or affirmance, "but the highest court of every State has power to decide upon its own juris- diction and upon the jvu:isdiction of all the inferior courts to which its appellate power extends. Davis v. Packard, 8 Pet. 312-323, 8 L. ed. 961, Jan. T., 1834. The mandate of the Supreme Court to the Court of Errors of New York is printed in full, p. 314. Where judgment in a cause tried by the court without a jury has been reversed, and the cause remanded with directions to award a new trial, upon a second writ of error it is too late to object that the original judgment in the Supreme Court should have been final upon the find- ings made by the Circuit Court at the first trial instead of awarding a venire de novo. The court cannot review on the second writ of error the judgment it rendered on the former writ of error. Ames v. Quimby, 106 U. S. 342-349, 27 L. ed. 103, Oct. T., 1883. A special finding of facts is, under sec. 649, Rev. Stats. (U. S. Comp. Stats. 1901, p. 525), equivalent to the special verdict of a jury. Where such finding covers all the issues raised by the pleadings, the Supreme Court, under sec. 701, Rev. Slats., should direct such judgment to be entered in the court below as the special finding requires. Fort Scott v. Hickman, 112 U.S. 150-165, 28 L. ed. 641, Oct. T., 1884. When cases are brought to the Supreme Court to review the judg- ments of the Circuit Court of Appeals in revision of judgments of the courts below, the Supreme Court's mandate goes to the court of first instance, and is there carried into effect, though the Court of Appeals may have sent its own mandate down before the case was brought to the Supreme Court by appeal, writ of error, or certiorari. Louisville & NashvUle R. Co. v. Behhner, 169 U. S. 644r-648, 42 L. ed. 890, Oct. T., 1897. That a decree has been entered in the Circuit (District) Court on receipt of a mandate from the Circuit Court of Appeals in accordance therewith, does not cut off an appeal from the decision of such Court of Appeals, or cause any difficulty in the Supreme Court's dealing with the cause in the Circuit (District) Court. Merrill v. N. Bank of Jacksonville, 173 U. S. 131-134, 43 L. ed. 642, Oct. T., 1898. 200 BULBS OF THE SUPREME COURT [Rule XL Rule XL — Practice in Cases from Circuit Courts of Appeals The provisions of these rules relating to the practice on direct writs of error to and appeals from the District Courts shall also be deemed to relate to and cover the practice on writs of error to and appeals from the Circuit Court of Appeals. Promulgated Dec. 22, 1911. STATUTOEY PROVISION'S PEETAINING TO THE PRACTICE IN THE CIRCUIT COURT OF APPEALS See the Judicial Code, Act March 3, 1911, post, page Act of March 3, 1891, c. 517, sec. 10, 26 Stat. 829, reads as follows: "Sec. 10. That whenever on appeal or writ of error or otherwise a case coming directly from the Districrt Court or existing Circuit Court shall be reviewed or determined in the Supreme Court the cause shall be remanded to the proper District or Circuit Court for further proceedings to be taken in pursuance of such determination. And whenever on appeal or writ of error or otherwise a case coming from a Circuit Court of Appeals shall be reviewed and determined in the Supreme Court the cause shall be remanded by the Supreme Court to the proper District or Circuit Court for further proceedings in pursuance of such determination. Whenever on appeal or writ of error or otherwise a case coming from a District or Circuit Court shall be reviewed and determined in the Circuit Court of Appeals in a case in which the decision in the Circuit Court of Appeals is final, such cause shall be remanded to the said District or Circuit Court for further proceedings to be there taken in pursuance of such deter- mination." Act of March 3, 1891, c. 617, sec. 11, 26 Stat. 829, reads as follows: " Sec. 11. That no appeal or writ of error by which any or- der, judgment or decree may be reviewed in the Circuit Court of Appeals under the provisions of this act shall be taken or sued out except within six months after the entry of the 201 202 STATUTORY PROVISIONS IN THE CIRCUIT COURT order, judgment or decree sought to be reviewed: Provided, however, that in all cases in which a lesser time is now by law limited for appeals or writs of error such limits of time shall apply to appeals or writs of error in such cases taken to or sued out from the Circuit Courts of Appeals. And all pro- visions of law now in force regulating the methods and system of review, through appeals or writs of error, shall regulate the methods and system of appeals and writs of error provided for in this act in respect of the Circuit Courts of Appeals, including all provisions for bonds or other securities to be required and taken on such appeals and writs of error, and any judge or judges of the Circuit Courts of Appeals in respect of cases brought or to be brought to that court, shall have the same powers and duties as to the allowance of appeals or writs of error, and the conditions of such allowance as now by law belong to the justices or judges in respect of the existing courts of the United States respectively." AUTHOEITIES UPON THE JURISDICTION AND PEACTICE OF THE CIRCUIT COURT OF APPEALS The Circuit Courts of Appeal are not endowed with any original jiirisdiction. They were by the act creating them simply given appel- late jurisdiction over certain specified courts, and, therefore, are not authorized to issue original and independent writs. Held: no authority to issue the writ of certiorari as a substitute for the writ of error or an appeal was granted to the Circuit Courts of Appeal by the Act of March 3, 1891. Whitney v. Dick, 202 U. S. 132-140, 60 L.ed. 966, Oct. T., 1905. The Circuit Court of Appeals has power to issue the writ of cer- tiorari only in aid of its appellate jurisdiction and cannot issue such a writ to review the action of a Circuit (District) Court which is not appealable. United States v. Montana Ore Pur. Co., 126 Fed. R. 169, 61 C. C. A. 315. Where, upon an appeal from a decree of the Circuit (District) Court, the whole case is taken to the Circuit Court of Appeals, although the appellant might have taken the case to the Supreme Court of the United States on the question of jurisdiction ^lone, the Circuit Court of Ap- peals has the choice either to certify the question of jurisdiction to the Supreme Court, or itself decide the question; and this, though all assign- ments of error, except as to the question of jurisdiction, are abandoned. Wirgman v. Persons, 126 Fed. R. 449-455, 62 C. C. A. 63. If the jurisdiction of the Circuit (District) Court is objected to and on issue is decided in favor of the defendant, the Circuit Court of Appeals has no jurisdiction to review the decision, because it disposes of the case, and the plaintiff must have the question certified and take his appeal or writ of error to the Supreme Court. Campbell v. The Golden Cycle Min. Co., 141 Fe.d R. 610-612, 73 CCA. 260, citing United States V. Jahn, 155 U. 8. 109-114, 39 L. ed. 87. Where the question of jurisdiction is in issue, and the jurisdiction is sustained and a judgment or decree is rendered in favor of the de- 203 204 AUTHORITIES — THE CIRCUIT COURT OF APPEALS fendants on the merits, the Circuit Court of Appeals has jurisdiction to review the decision below. 76. 612. Under the Act of Mar. 3, 1891, establishing the Circuit Court of Appeals it was held (1) that if the jurisdiction of the Circuit Court is in issue and decided in favor of the defendant, as that disposes of the case, the plaintiff should have the question certified and take his appeal, or writ of error direct to the Supreme Court. (2) If the question of jurisdiction is in issue, and the jurisdiction sustained, and then judgment or decree is rendered in favor of de- fendant on the merits, the plaintiff, who has maintained the jurisdiction, must appeal to the Circuit Court of Appeals, where if the question of jurisdiction arises the Circuit Court of Appeals may certify it to the Supreme Court. (3) If the question of jurisdiction is in issue, and the jurisdiction sustained and judgment on the merits is rendered in favor of the plain- tiff, then the defendant can elect either to have the question certified and come directly to the Supreme Court, or to carry the whole case to the Circuit Court of Appeals, and the question of jurisdiction can be certified by that court. (4) If, in the case last supposed, the plaintiff has ground of com- plaint in respect to the judgment he has recovered, he may also carry the case to the Circuit Court of Appeals on the merits, and this he may do by way of cross-appeal or writ of error, if the defendant has taken the case there, or independently, if the defendant has carried the case to the Supreme Court on the question of jurisdiction alone, and in this instance the Circuit Court of Appeals will suspend a de- cision upon the merits until the question of jurisdiction has been deter- mined. (5) The practice is the same where plaintiff objects to the juris- diction, and is or both parties are dissatisfied with the judgment on the merits. United States v. Jahn, 155 U. S. 109-114, 39 L. ed. 87. When a case is removed from a State court to the United States court and the jurisdiction sustained, the question of jurisdiction can- not be reviewed on a writ of error to the Circuit Court of Appeals, but after final judgment may be reviewed on error or appeal by the Supreme Court. Missouri Pac. Ry. v. Fitzgerald, 160 U. S. 571-582, 40 L. ed. 536. Under the 6th sec. of the Act of Mar. 3, 1891, establishing the Court of Appeals (sec. 128, Judicial Code), the judgments or decrees of the Circuit Court of Appeals are made final in all cases, in which the jurisdic- tion of the Circuit Court attaches solely by reason of diverse citizenship, and it follows that the Court of Appeals has power to review the judg- ment of the Circuit (District) Court in every such case, notwithstanding constitutional questions may have arisen after the jurisdiction of the AUTHORITIES — THE CIBCUIT COURT OF APPEALS 205 trial court attached. Am. Sugar R. Co. v. New Orleans, 181 U. S. 277, 280, 45 L. ed. 859. Where the plaintiff by proper pleading avers facts by which it ap- pears that the suit does really and substantially involve a dispute or controversy as to a right which depends on the construction or appUcation of the Constitution or some law or treaty of the United States, the appellate jurisdiction of the Supreme Court under sec. 5 of the Act of Mar. 3, 1891 (sec. 238, Judicial Code), is exclusive. If the plaintiff by proper pleading places the jurisdiction of the Circuit (District) Court on diverse citizenship, and also on grounds independent of that question, and the case is taken to the Court of Appeals, proposi- tions as to the latter grounds may be certified to the Supreme Court, or if that course is not pursued, and the case goes to judgment, an ap- peal or writ of error from the Supreme Court will lie under the last clause of sec. 6 (sec. 128, Judicial Code), because the jurisdiction does not depend solely on diverse citizenship. lb. 281. The language used in the case of Carter v. Roberts, 177 U. S. 496, 44 L. ed. 861, should not be construed to mean that in cases where the jurisdiction below is invoked on the ground of diverse citizenship, the Circuit Court of Appeals may decline to take jurisdiction or dismiss the appeal or writ of error for want of jurisdiction. The fact that in such a case one or more of the constitutional questions referred to in sec. 5 of the Act of Mar. 3, 1891 (sec. 238, Judicial Code), may have so arisen that a direct resort to the Supreme Court might be had, does not deprive the Court of Appeals of jurisdiction, or justify it in dechning to exercise it. 76. 282. Where the jurisdiction of the Circuit (District) Court depends solely on diverse citizenship and it turns out the case involves the construction or application of the Constitution of the United States, or the constitu- tionaUty of a law of the United States, or the validity or construction of a treaty is drawn in question, or the constitution or law of a State is claimed to be in contravention to the Constitution of the United States, the Circuit Court of Appeals may certify the constitutional or treaty question to the Supreme Court, and proceed as thereupon ad- vised, or it may decide the whole case. lb. 282. Where the jurisdiction of the Circuit Court rests on diverse citizen- ship and not on any other ground, although independent of that, constitutional grounds may appear, in the pleadings of the plaintiff, and a decree has been therein rendered, from which an appeal to the Circuit Court of Appeals has been taken, and that court goes on and decides the case, its decision will be final and the jurisdiction of the Supreme Court cannot thereafter be invoked directly on another writ of error to the Circuit (District) Court, but the interposition of that court can only be invoked by certiorari to the Circuit Court of Appeals. lb. 279. Note. The case reported in 104 Fed. R. 2, reversed on writ of certiorari. 181 U. . N. Chicago St. R. Co., 87 Fed. R. 168-170, 30 C. C. A. 594. "All proceedings in the case," in the first clause of Rule 14 are to be read with reference to the language of the third clause. Ih. 170. The jurisdiction of the appellate court, which attaches upon the filing of the writ of error in the oflace of the clerk of the Circuit Court, is not defeated by an irregular certificate to the transcript. Ih. 169. In the absence of a controlling stipulation by the parties, or of written instructions from the plaintiff in error, or appellant, filed in the case, transcripts in cases of writs of error or appeal should meet the require- ments of Rule 14, and the clerk's certificate should follow the language of the rule and show that the transcript transmitted is "a true copy, etc." Pennsylvania Co., etc., v. Jacksonville, T. & K. W. R. Co., 55 Fed. B. 131-132, 5 C. C. A. 53. If the clerk's certificate shows that certain parts of the record were omitted from the transcript by direction of appellant's attorney, when it does not appear that the omitted parts are necessary for the hearing, it is suflicient, and the appeal will not be dismissed for that reason. Nashua & Lowell Ry. Cor. v. Boston & Lowell Ry. Cor., 61 Fed. R. 237-245, 9 C. C. A. 468. The transcript on appeal need not always contain all the proof, entries, papers, and proceedings below. lb. 244. The clerk may ordinarily receive joint directions from the solicitors and attorneys to make up the transcript on appeal. In the absence of a joint stipulation the clerk must decide as to the selection made by appellant's solicitor, as to what the transcript shall contain.- He may well refuse to certify a transcript with palpable and substantial omis- sions, in which event the appellant has his remedy by applying to the appellate coin-t for a mandamus, or perhaps by seeking some instruc- tions to the clerk from the court appealed from. lb. Ordinarily the whole of the common-law record, and of the cor- responding portions in equity as designated in sec. 750, Rev. Stats., should be brought up. lb. 243. The appropriate and ordinary remedy for an appellee in case of a defective transcript is to suggest diminution, and ask for certiorari, though the court may sometimes order the latter of its own motion. lb. 245. A certificate stating that certain numbered papers "is a true, full, and complete transcript of so much of said record and proceedings as now appear and is of file and of record in my office," is insufficient, 270 HULES— CIRCUIT COITR* OF AiPPEALS [Rule XlV but where the record shows that the records and files were destroyed by fire, and is silent as to which party is in fault, in not fully re-estab- lishing the record, the record as certified should be considered. Cutting V. Taveres A. & Ar. Co., 61 Fed. B. 150-155, 9 C. C. A. 401. An appellate court will not submit to be called on by mandamus to settle in advance whether a certain paper is or is not a part of the record, where there is a dispute between counsel and the clerk. Starcke V. Klein, 62 Fed. R. 502-503, 10 C. C. A. 445. / Neither the counsel for appellant nor the clerk can conclusively determine what parts of the record are necessary on appeal; when, therefore, the certificate of the clerk does not show that the record is a full and complete record of the entire proceedings, it ought to ap- pear by stipulation of counsel or otherwise that it does include all that is necessary to a determination of the matters involved in the appeal. Cunningham v. German Ins. Bank, 103 Fed. R. 932-934, 43 C. C. A. 377. The transcript should contain no immaterial matter, and if the transcript as filed is deemed by the appellee not sufficiently full, he should seasonably move the court to require the appellant to complete the record by filing a transcript of such other papers and evidence as he deems necessary and points out. lb. 934. The general rule is that the plaintiff in error or appellant is responsible for the condition of the record in the appellate comrt. When he desig- nates the portion of the proceedings below to be certified, the clerk of the trial court should follow his directions, and leave the opposing parties to procure any omitted portions of the proceedings by a writ of certiorari, or other permissible proceeding. Where no directions are given the clerk he should be careful that the transcript contains a copy of every- thing specified in Rule 14 which is necessary to the hearing, and that his certificate shows this fact. Teller v. United States, 111 Fed. R. 119-120, 49 CCA. 263. The fact that papers not in the judgment roll are in the transcript and certified to by the clerk, does not make them any part of the record on writ of error. Duncan v. Atchison, T. & S. F. R. Co., 72 Fed. R. 808-812. Such papers can only be made part of the record by bill of excep- tions, or an agreed statement of facts or some other way recognized by the rules of practice. lb. 812. No alleged errors concerning the rulings of the Circuit (District) Court on the trial of a cause without a jury can be examined in the Circuit Court of Appeals, unless it affirmatively appears upon the record that there was a written stipulation waiving the jury, signed by the re- spective counsel. 76. 810. Rule XIV] RULES — CIRCUIT COURT OF APPEALS 271 New evidence cannot be introduced into the record after the judg- ment rendered, by giving notice to the opposite party that appellant thinks such evidence necessary for the consideration of the court on appeal. Such foreign matter tacked onto the record has no official sanction whatever, and constitutes no part of the record. Board of Commissioners v. King, 67 Fed. B. 945-046, 15 CCA. 93. The Circuit Court of Appeals is without jurisdiction to allow an amendment of the record sent up from the trial court. Jackson Co. v. Gardiner Inv. Co., 118 C. C.A. 294. The appellate court upon its own motion may reverse a decree and remand it to the trial court with directions to take further proofs where the case is not properly prepared for a decree, if great injustice would be done to decide the case on the record sent up. Barber v. Coit, 118 Fed. R. 272, 55 C. C A. 145. It is not indispensable that exceptions taken during the progress of the trial should appear by the biU of exceptions, and that they cannot be shown by anything else; the decisions which support this proposition were in cases where the exceptions relied on were shown by the transcript to have rested in the clerk's or judge's minutes, which are no part of the record. Where all the proceedings upon which the exception is based, including the action of the court and the objec- tion and exception of the party, are made a matter of record upon the journal of the court, while this is not the form employed by the common- law practice, it is not beyond the power of the court to so exhibit the exception. It is nothing but a matter of form, and the appellate court would not be justified in ignoring vital exceptions so appearing in the record. Wilson v. Pauley, 72 Fed. B. 139-142. Where a jury is waived and the cause tried by the court no appeal may be had on any questions except those which arise in the progress of the trial, as for example, objections to the admission of material evidence, or which would arise on general demurrer, or may be taken as questions of law arising on findings of ultimate facts. lb. In a cause tried by a judge, a jury trial being waived, where the record was made up on a bill of exceptions such as is filed on jury trials, the court looked to the opinion to ascertain the finding of facts, the general or special finding of facts required by sees. 649 and 700, Rev. Stats. {U. S. Comp. Stats. 1901, pp. 525-570) not having been made. 76. Ordinarily, an opinion is no part of the record, and is not to be referred to except to indicate the views of the law of the judge of the trial court, Continental, etc., Bank of Chicago ». Cobb, 200 Fed, 511, 118 C C. A, 615-622. 272 RULES— CIRCUIT COURT OF APPEALS [Rules XV, XVI Rule XV — Translations Whenever any record transmitted to this court upon a Where no translation Writ of error or appeal shall contain any for'S?rianguage??ecord doCUment, paper, testimony, or other pro- remanded, ceeding in a foreign language, and the record does not also contain a translation of such document, paper, testimony, or other proceeding, made imder the authority of the inferior court, or admitted to be correct, the record shall not be printed, but the case shall be re- ported to this court by the clerk, and the court will there- upon remand it back to the inferior court, in order that a translation may be there supplied and inserted in the record. Note. Thia rule is numbered 16 in the Third Circuit, and is omitted from the rules of the Sixth Circuit. Rule XVI — Docketing and Dismissing Cases First Circuit — (1) The plaintiff in error or appellant Case docketed and reo- shall docket the case and file the record ord to be filed before retuin-day. thereof ou or before the return-day, whether in vacation or in term time. But for good cause shown the justice or judge, who signed the citation, or any Time may be enlarged. (circuit or) district judge, may enlarge the time, the order of enlargement to be filed in this court. (2) If the plaintiff in error or appellant shall fail to comply On default, defendant with this Tule, the defendant in error in error or appellee may ' an™ disSed or°''mIy °^ appellee may have the cause docketed ae the record. and dismissed upon producing a certifi- cate, whether in term or vacation, from the clerk of the court wherein the judgment or decree was rendered, statmg the case, the return-day of the citation and that the writ of error or appeal was duly sued out or allowed. And the plaintifiE in error or appellant shall not be entitled to docket the case or file the record, after the same shall have been docketed and dismissed under this rule, unless by order of the court after notice to the adverse party. But the defendant in error or appellee may, at his option, docket the case and file the record; and if the case is docketed and the record filed by the plaintiff in error or appellant within the time prescribed by this rule, or by the defendant in Rule XVI] RULES— CIRCUIT COURT OF APPEALS 273 error or appellee at any time thereafter, the case shall stand for argument. (3) Upon the filing of the record the ap- On filing transcript, ap- pearance of the counsel for the party party°dlcketu^"entored. docketing the case shall be entered. In the Second, Seventh, Eighth, and Ninth Circuits the rule is substantially the same as in the First Circuit, except that in the first section its first sentence reads: "It shall be the duty of the plaintiff in error or appellant to docket the case and file the record thereof with the clerk of this court by or before the return-day, whether in vacation or in term time." And in the Ninth Circuit the words "at San Francisco, California," are inserted between the words "clerk of this court," and "by or before," and in this and the Second Circuits the words "at the term," end the 2d section. In the Third Circuit, the rule is numbered 17. Clause 1 Isl substantially as printed above. Clauses 2, 3 and 4 read as follows: (2) If the plaintiff in error or appellant shall fail to comply with the first section of this rule, the defendant in error or appellee may cause the case to be docketed, without the filing of any record, and may have it dismissed, whether in term time or vacation, upon due proof of notice to the plaintiff in error or appellant of a motion for such dismissal, and upon producing a certificate from the clerk of the court wherein^ the judgment or decree was rendered, stating the case, the return-day of the citatiouj and that the writ of error or appeal was duly sued out or al- lowed; and in no case shall the plaintiff in error or appellant be entitled to file the record or to have it docketed after the defendant in error or appellee shall have had the case dis- missed under this section of this rule, unless by special order of the court. (3) Instead of having the case docketed for the purpose of having it dismissed under the provisions of the second section of this rule, the defendant in error or appellee, on payment of the usual fees, may file the record and cause the case to be docketed by the clerk, and if the record be filed and the case docketed, either by the pl^aintiff in error or appellant, within 18 274 RULES— CIRCUIT COUET OF APPEALS [Rule XVI the time prescribed by the first section of this rule, or by the defendant in error or appellee under the provisions of this section, the case shall stand for argument. (4) On the filing of the record the appearance of the counsel for the party docketing the case shall be entered, and on or before the return-day of" the citation the counsel for the appellee or defendant in error shall also enter appearance for the appellee or defendant in error. In the Fourth Circuit the rule reads as follows: (1) Except as otherwise provided by Rule 23, it shall be the duty of the appellant, plaintiff in error, or petitioner for revision in bankruptcy to cause to be printed and suitably in- dexed the transcript of the record (as well as any addendmn to the record required by such party) and to deliver the same to the clerk or deputy clerk of the court below for certifica- tion, sealing and transmission to this court within forty days from the date of the citation or the filing of the petition for revision; and also on or before the expiration of the said forty days to file with the clerk of this court at least twenty- four printed copies of the said transcript and addendum above-mentioned, if any. He shall also at the same time fur- nish to the adverse party at least three copies of the printed transcript of the record, including any addendum thereto printed at his instance. It shall also be the duty of appellant, plaintiff in error or petitioner for revision to docket the cause in this court on or before the return day, whether in term time or vacation. In case any appellee or defendant in error shall have required an addendum to the transcript of record, it shall be the duty of such party to file in the ofiice of the clerk of this court, on or before the said return day, at least twenty-four printed copies of such addendum as well as one additional copy thereof, which shall have been duly certified by the clerk of the court below; and such party shall at the same time furnish to the adverse party at least three copies of said printed addendum. The time within which any of the acts in this section above mentioned are required to be done may for good cause shown be enlarged by the justice or judge who signed the cita- tion or any judge of this court, provided the order of enlarge- iRuie XVi] BULES — CIRCUIT COURT OF APPEALS 275 ment be made prior to the expiration of such time; such order to be filed with the clerk of this court. (2) If the plaintiff in error or appellant shall fail to com- ply with this rule, the defendant in error or appellee may have the cause docketed and dismissed upon producing a certificate from the clerk of the court wherein the judgment or decree was rendered, stating the case and certifying that such writ of error or appeal has been duly sued out or allowed. And in no case shall the plaintiff in error or appellant be en- titled to docket the case and file the transcript of the record after the same shall have been docketed and dismissed under this rule, unless by order of the court. (3) But the defendant in error or appellee may, at his option, docket the case and file a copy of the record with the clerk of this court; and if the case is docketed and a copy of the record filed with the clerk of this court by the plaintiff in error or appellant within the period of time above limited and prescribed by this rule, or by the defendant in error or appel- lee at any time thereafter, the case shall stand for argument at the term. (4) Upon the filing of the transcript of the record in any case brought up by writ of error or appeal, the appearance of counsel for the party docketing the cause shall be entered by the clerk of this court as of course. (5) Defendants in error, or appellees, are required, at the time of entering their appearance by attorney, to make a de- posit of $20.00, for account of costs to be incurred by them in this court. In case of affirmance, or dismissal, when all costs shall have been paid by the plaintiff in error, or appellant, the said deposit will be returned. This is applicable to all cases except when the United States is defendant in error or appel- lee. For the Fifth Circuit the rule is as in the First Circuit ex- cept that when amended on June 20, 1895, the words "the justice or judge who signed the citation" in the first clause were omitted and on April 23, 1895, the following clause was added: (4) "In all cases the plaintiff in error or appellant on docketing a case and filing the record, shall enter into an 276 BULES— CIRCUIT COURT OF APPEALS [Rule XVI undertaking with the clerk, with surety to his satisfaction for the payment of his fees, or otherwise satisfy him in that behalf." For the Sixth Circuit the rule is numbered 18 and is sub- stantially as given in the First Circuit, except that there is inserted at the end of the first sentence of the first section and as a part of it these words: "And at the time of filing the record, the plaintiff in error or appellant shall deposit with the clerk the sum of thirty-five dollars as security for costs except in cases in which the proper showing is made and an order of this court is entered thereon allowing the cause to proceed in forma pauperis." And there are added Clauses 5 and 6 reading as follows: (5) All subsequent papers filed, orders made and proceed- ings had shall be noted upon the docket. (6) Whenever counsel for appellant and appellee shall in vacation sign and file with the clerk an agreement in writing, directing the case to be dismissed and specifying the terms as to costs, on which terms it is to be dismissed, and shall pay to the clerk any fees due, he shall enter the case on his docket as dismissed and give to either party requesting it a copy of the agreement filed, but no mandate or other process on such dismissal shall be issued without the order of the court, and Clause 1 reads as follows: (1) The clerk shall enter upon the docket in their proper chronological order all cases brought to or in this court. In the Eighth Circuit the following note is added at the end of the rule: "Note. A deposit of thirty-five dollars to secure clerk's costs is required before the record in a cause is filed and docketed." Decisions Rule 16 is essentially the same as Rule 9 of the Supreme Court as to which that court said: "The rule of the court for docketing and dis- missing causes has never been appHed in any case, where before the motion is made the cause has been actually placed on the docket." West Chicago St. R. Co. v. Ellsworth, 77 Fed. R. 664-665, 23 CCA. 393. The purpose of the rule is to enable appellee to secure the dismissal of an appeal where it becomes apparent by a proper showing that appellant is not prosecuting his appeal diligently under the rules, or that the appeal Rule XVI] RULES — CIRCUIT COURT OF APPEALS 277 has not been taken in good faith but for delay only. Sutherland v. Pearoe, 186 Fed. R. 783, 108 C. C. A. 653. A district judge who is not a member of the Circiut Court of Ap- peals and who did not sign the citation, although he allowed the ap- peal, cannot make an order enlarging the time for filing the record. West V. Irwin, 54 Fed. B. 419-420, 4 C. C. A. 401. Where the judge who trifed the case signed the citation, a judge of another district when holding court for the judge who tried the case and in his district may make an order in the case extending the return to the writ of error sued out. Hall v. M'Kinnon, 193 Fed. R. 572, 113 C. C. A. 440. Where the record was not filed in th^ appellate court within the time prescribed by the rule, because the office of the clerk was closed, it was held that that was sufficient excuse for the default. Farmers Loan & Trust Co. V. Chicago & N. P. R. Co., 73 Fed. 314-317, 19 C. C. A. 477. Where it is not alleged that appellant has failed to give the under- taking for costs required by a rule of the court, or to pay the clerk the estimated costs and fees for printing the record, it will not be ground for dismissal that the record has not been printed. lb. 317. Where the record is filed within the time prescribed by Rule 16 the appellant is not responsible if the printed copies of the record and of the brief are not filed within a prescribed number of days before the term, in conformity with other rules. Jones v. Mann, 72 Fed. R. 85, 18 C. C. A. 442. Rule 14, Eighth Circuit, requires appeals, writs of error, and citac tions to be made returnable not exceeding sixty days from the date of signing the citation. Rule 16, Circuit Court of Appeals Rules, requires the filing of the record by or before the return-day. Held, that where a transcript of the record was filed within sixty days of the signing of the citation and within the time specified therein, but after the return-day of the writ of error, and the failure to file it before that return-day has not continued the hearing of the case over any term of the court, when no motion to dismiss the writ was made until the expense of printing the transcript was incurred, the writ should not be dismissed on motion. Town of Oilman v. Fumald, 141 Fed. R. 940, 72 CCA. 666. Where, by mistake of the clerk, the date of the filing of the transcript and docketing the case is prior to the date of the decree appealed from, the court by order will make the record speak the truth. Elder v. McCloskey, 70 Fed. R. 529-560, 17 CCA. 251. The order enlarging the time in which to file the record must be filed with the clerk of the Court of Appeals, and this duty belongs to 278 RULES — CIRCUIT COURT OF APPEALS [Rule XVlI the party procuring the order. State of Florida v. Charlotte H. P. Co., 70 Fed. R. 883-886, 17 CCA. 447. Rule XVII — Docket and Calendars First Circuit — (1) The clerk shall enter and number on the docket all cases consecutively, .in their proper chron- ological order. (2) He shall print at least twenty days before the first Tuesday of October and of January, and the second Tuesday of April, a calendar of all the pending cases, arranged by districts in the following order: Maine, New Hampshire, Rhode Island, Massachusetts. Second, Fifth, and Eighth Circuits — (1) The clerk shall enter upon a docket all cases brought to and pending in the court in their proper chronological order and such docket shall be called at every term, or adjomrned term; and, if a case is called for hearing at two terms successively, and upon the call at the second term neither party is prepared to argue it, it will be dismissed at the cost of the plaintiff in error or appellants, unless sufficient cause is shown for further post- ponement. In the Third Circuit the rule is numbered 18 and reads as follows: (1) Upon the filing of the record in any case by the plaintiff in error or appellant and the payment by him of a deposit fee of twenty-five dollars, the clerk shall enter the case, the record of which is so filed, upon the docket of this court; siicTi docket shall have all its cases arranged in their proper chronological order. (2) The clerk shall prepare and cause to be printed, pre- vious to the opening of each term of this court, an Argument List of all cases the records of which shall have been filed with him not less than fifteen days before the opening of the term, which cases shall be put on the Argument List in the chron- ological order of docketing the same, subject, however, to the following system of grouping: The first group shall be com- posed of the cases in which all the circuit judges shall be competent to sit; the second, of the cases in which all the Rule XVII] RULES — CIRCUIT COURT OF APPEALS 279 circuit judges except the youngest in commission shall be competent to sit; the third, of the cases in which all the cir- cuit judges except the next to the youngest in commission shall be competent to sit, and the fourth, of the cases in which all the circuit judges except the oldest judge in com- mission shall be competent to sit. And a rule numbered 19 entitled Arguments, Continuances and Dismissals has been adopted reading as follows : (1) The cases in the Argiunent List shall be called for argument at each term, or adjourned term, and cases shall be argued on call unless the court shall for good cause otherwise . order. (2) If the defendant in error or appellee fails to appear when his case is called for argument, the court may proceed to hear the argument on the part of the plaintiff in error or appellant and to give judgment according to the right of the case. (3) For good cause shown the court may order the con- tinuance of any case for the term. (4) When a case is reached in the regular call, and there is no appearance for either party, it may be dismissed at the cost of the plaintiff in error or appellant. (5) Where no counsel appears for the plaintiff in error or ap- pellant, and no brief has been filed for him, the defendant in error or appellee may have the writ of error or appeal dis- missed at the cost of the defaulting party. (6) If a case is called for argument at two terms succes- sively, and upon the call at tlie second term neither party is prepared to argue it, it will be dismissed at the cost of the plaintiff in error or appellant unless a sufficient cause is shown for further postponement. (7) Whenever the plaintiff and defendant in a writ of error pending in the court, or the appellant and appellee in an appeal, shall, by their attorneys of record, sign and file with the clerk an agreement in writing directing the case to be dismissed, and specifying the terms on which it is to be dis- missed, as to costs, and shall pay to the clerk any fees that may be due to him, it shall be the duty of the clerk to enter the case dismissed, and to give to either party requesting it a 280 RULES — CIRCUIT COURT OF APPEALS [Rule XVII copy of the agreement filed; but no mandate or other process shall issue without an order of the court. (8) Cases may also be dismissed in accordance with the second section of Rule 17, the first section of Rule 23 and the fourth section of Rule 24 of this court. (9) Except as in the preceding sections of this rule it is otherwise provided, no motion to dismiss a writ of error or an appeal will be heard unless previous notice of the motion has been given to the plaintiff in error or appellant or his counsel. In the Fourth Circuit the rule is as follows: (1) The clerk shall enter upon a docket all cases brought to and pending in the court in their proper chronological order. (2) All cases in which copies of the printed record are delivered to the adverse party or his counsel at least twenty days before any regular term or adjourned term shall stand for argument at the term or adjourned term held next after the docketing of the case. (3) The clerk before each regular term shall print a docket containing all pending cases and such docket shall be called at every term or adjourned term. If a case is called for hearing at two terms successively, and upon the call at the second term neither party is prepared to argue it, it will be dismissed at the cost of the plaintiff in error, appellant or petitioner for revision, imless sufficient cause is shown for further postponement. (4) By consent of counsel in writing filed with the clerk of this court, any cases not included in sec. 2 of this rule may be by the clerk placed at the foot of the argument docket, and may be argued at any term or adjourned term, provided the briefs on both sides are filed before the case is called. In the Sixth Circuit Rule 17 covers proceedings In Forma Pauperis. In the Seventh Circuit the rule reads as follows: The clerk shall prepare calendars of causes for the regular terms of this court, to be held on the first Tuesday of Octo- ber in each year, and for each adjourned session; placing thereon in proper chronological order only cases in which Rule XVIII] EULES — CIRCUIT COURT OF APPEALS 281 the record shall have been printed fully thirty days before such term or session and those causes in which, the record having been printed, briefs upon both sides have been filed seven days before the beginning of the term or session. In the Eighth Circuit the rule is as in the Second Circuit except there are added after the words "or adjourned term" in Clause 2 the words "except cases from the dis- tricts of Colorado, Utah, Wyoming and New Mexico which cases shall only be called at the September term unless counsel otherwise stipulate as provided in Rule 3." For the Ninth Circuit, the rule is as follows: The clerk shall, upon payment to him by the appellant or plaintiff in error of a deposit of twenty-five dollars ($25.00) in each case, file the record and enter upon a docket all cases brought to and pending in the court in their proper chronological order. Rule XVIII — Certiorari No certiorari for diminution of the record will be hereafter awarded in any case, unless a motion Motion to be in writing, therefor shaU be made in writing, and netting out the facts. the facts on which the same is founded shall, if not admitted by the other party, be verified by affidavit. And all motions for such certiorari must be made at the Must be made at the first term of the entry of the case; other- "' """ wise, the same will not be granted, unless upon special cause shown to the court, accounting satisfactorily for the delay. Note. In the Third Circuit this rule is munbered 20. There ia no corresponding rule in the Sixth Circuit. Decisions Upon the record being filed if any omission or addition is found relief can be had by either party by certiorari. Blanks v. Klein, 49 Fed. B. 1,1 CCA. 139. Presumptively the transcript filed over the certificate of the cleric contams a complete record, and the hearing can be had only upon the record brought from the trial court. Such record cannot be amended by certiorari upon ex parte affidavit so as to get matter into the record which appellant claims was introduced at the hearing before the master, 282 RULES — CIRCUIT COURT OF APPEALS [Rule XIX but which the master states he has no recollection of. Randolph v. Allen, 73 Fed. R. 23-32, 19 C. C. A. 353. Where exceptions are taken in the trial court in a cause tried by the court, and there is no evidence to support the findings of facts, and motion is made to dismiss the appeal because the record does not set out all the evidence introduced below, if there is any material omis- sion in the record the proper remedy is by motion for certiorari and not a motion to dismiss. Merill v. Floyd, 50 Fed. R. 849-850, 2 C. C. A. 58. A motion to dismiss an appeal because a transcript is imperfect should point out what, if any, of the omitted parts are material, and the appellee upon a suggestion duly made may ask for a certiorari to correct the transcript. Nashua & L. R. Cor. v. Boston & L. R. Cor., 51 Fed. R. 929-931, 2 C. C. A. 542. Rule XIX — Death of a Party (1) Whenever, pending a writ of error or appeal in this Legal representative court, either party shall die, the proper may be admitted aa , ,. • ,i i, tj party.— In default upon representatives m the pcrsonalty or realty suggestion of death, « i i -, t j_ _lt_ may be compelled to oi the deceased party, according to the come in or cause be , , , , -i dismissed. nature of the case, may voluntarily come in and be admitted i^arties to the suit, and thereupon the case shall be heard and determined as in other cases; and, if such representatives shall not voluntarily become parties, then the other party may suggest the death on the record, and thereupon, on motion, obtain an order that unless such representatives shall become parties within sixty days, the party moving for such order, if defendant in error (or appellee as the rule in the 4th Circuit reads), shall be entitled to have the writ of error or appeal dismissed, and, if the party so moving shall be plaintifif in error (or appellant in the 4th Circuit), he shall be entitled to open the record, and, on hearing, have the judgment or decree reversed, if it be erroneous: Provided^ however, that a copy of every such order shall be personally served on said representatives at least thirty days before the expiration of such sixty days. (2) When the death of a party is suggested, and the Cause to abate on de- representatives of the deceased do not fault after notice. appear within ten days after the expira- tion of such sixty days, and no measures are taken by the tluie XIXJ KULES — CIRCUIT COURT OF At-PEALS 283 opposite party within that time to compel their appearance, the case shall abate; (3) When either party to a suit in a Circuit or District Court of the United States shall desire Proceedings, where party to prosecute a writ of error or appeal to & t^^t^^ f^- this court, from any final judgment or K^^J^otice.-ACt" decree rendered in the Circuit or District '>^«''*™d«fa"'t- Court, and at the time of suing out such writ of error or appeal, the other party to the suit shall be dead and have no proper representative within the jurisdiction of the court which rendered such final judgment or decree, so that the suit cannot be revived in that court, but shall have a proper representative in some State or Territory of the United States, or in the District of Columbia, the party desiring such writ of error or appeal may procure the same, and may have proceedings on such judgment or decree superseded or stayed in the same manner as is now allowed by law in other cases, and shall thereupon proceed with such writ of error or appeal as in other cases. And within thirty days after the filing of the record in this court the plaintiff in error or appellant shall make a suggestion to the court, supported by affidavit, that the said party was dead when the writ of error or appeal was taken or sued out, and had no proper representative within the jurisdic- tion of the court which rendered such judgment or decree, so that the suit could not be revived in that court, and that said party had a proper representative in some State or Territory of the United States, or in the District of Colum- bia, and stating therein the name and character of such representative, and the State or Territory or District in which such representative resides; and upon such sug- gestion, he may on motion obtain an order that, unless such representative shall make himself a party within ninety days, the plaintiff, in error or appellant shall be entitled to open the record, and, on hearing, have the judgment or decree reversed if the same be erroneous: Provided, how- ever, that a proper citation reciting the substance of such order shall be served upon such representative, either per- sonally or by being left at his residence, at least thirty 284 RULES — cmctJlT cOtrRT Ot appeals [Rule XIX days before the expiration of such ninety days: Provided, also, that in every such case, if the representative of the deceased party does not appear within ten days after the expiration of such ninety days, and the measures above provided to compel the appearance of such representative have not been taken within the time as above required, by the opposite party, the case shall abate: And provided, abo, that the said representative may at any time before or after said suggestion come in and be made a party to the suit, and thereupon the case shall proceed, and be heard and determined as in other cases. Note. In the Third Circuit this Rule is numbered 21. In the Sixth Circuit, the rule is numbered 16 and reads as follows: (1) Whenever a party to a case pending in this court shall die, the personal representative may suggest the death upon the record, filing evidence of his representative capacity, and designating counsel, and thereupon the case shall stand as revived in behalf of or against the interest of the deceased party, and the cause shall proceed as in other cases. (2) ■ Where a party to a case pending in this court shall die and his personal representative does not, within sixty days after such death, appear under Clause 1, any other party in interest may suggest such death upon the record, filing evidence of the due appointment of a personal repre- sentative, and thereupon, and without notice, the court or any judge thereof will make -an order that such personal representative appear and designate counsel. In default of such appearance, within thirty days after service on such personal representative of a certified copy of such order, the adverse party, on proof of such service and without further notice, may have, from this court, an order either to revive the cause and direct, that it proceed as to the interest held by the deceased party or to dismiss the case as to such interest, as may be by the court thought proper. (3) If the death of a party is brought to the attention of this court, and proceedings are not taken under Clause 1 or Clause 2 sufficiently to dispose of the resulting situation, RuleXX] RULES — CIRCUIT COURT OF APPEALS 285 the court will, on its own motion, direct such steps to be taken as are proper to dispose of the case or expedite the hearing. (4) Whenever any party to a suit pending in a District Court shall die, and because of such death and because of the absence of any personal representative of the deceased within the jurisdiction of the District Court and any means of compelling the appointment of such a representative within such jurisdiction the adverse party is not able to have the case revived in the District Court and to proceed with the desired review in this court, the adverse party desiring a review may proceed as if such death had not occurred, and may have supersedeas as in other cases, serv- ing all required papers and notices upon such persons as, in the judgment of the District Court, will be most likely to give notice to all persons interested in the estate, and as may be directed by the District Court. When the record in such a case has been filed in this court, the same proceedings shall be had as specified in Clauses two and three, or the court will take such proceedings as may to it seem advisable to bring in the proper parties. Rule XX — Dismissing Cases by Agreement Whenever the plaintiff and defendant in a writ of error pending in this court, or the appellant 9" d'^™™!, no man- *^ *=* ' * * , date to isaue except by and appellee in an a,ppeal, shall, by their order of court, attorneys of record, sign and file with the clerk an agreement in writing directing the case to be dismissed, and specifying the terms on which it is to be dismissed, as to costs, and shall pay to the clerk any fees that may be due to him, it shall be the duty of the clerk to enter the case dismissed, and to give to either party requesting it a copy of the agree- ment filed; but no mandate or other process shall issue without an order of the court. Rule 20 is printed as Clause 7 of Rule 19 in the Third Circuit and as Clause 6 of Rule 18 in the Sixth Circuit. In the Fourth Circuit in addition to the Rule as it exists in the First Circuit, is added the following: "No attorney's docket 286 RULES — CIRCUIT COURl' OF APPEALS [Rule XXI fee shall be taxed in a case dismissed under this rule." In the Eighth Circuit after the word clerk in the eighth line the rule reads as follows: "Seasonably to present such agreement to the court for its consideration and determination." Decisions After one motion to dismiss has been filed and set down for hearing the appellee has no right to file a second motion to dismiss without leave of the court, which leave will not be granted on formal grounds only. Nashua & L. R. Cor. v. Boston & L. R. Cor., 51 Fed. R. 929- 931, 2 C. C. A. 542. If the Circuit Court had no jurisdiction, that is not ground for dis- missing an appeal in the Circuit Court of Appeals, but ground for reversal of the judgment for want of jurisdiction in the court in which it was rendered. lb. 930. An appellant cannot as of right dismiss his own appeal. Ordinarily he is not entitled to an order of dismissal without prejudice if he in- tends at some future time to bring another appeal. Donnallan v. Tannage Patent Co., 79 Fed. B. 385, 24 C. C. A. 647. Where a cause is disposed of on appeal for some reason not touching the merits, the decree should usually show that it was without prejudice, and an appellant may sometimes show mistake or some other special reason which may entitle him to a special order. lb. 386. Rule XXI — Motions First Circuit — (1) The motion-day shall be the first Tues- Motion-days. day of every stated session of the court, and any other Tuesday while the court shall remain in ses- sion. (2) All motions to the court shall be reduced to writing Must be in writing. and shall Contain a brief statement of the facts and objects of the motion. (3) All motions to dismiss writs of error or appeals (ex- Motions to be printed, cept motions to docket and dismiss under Rule 16) or to advance cases, or for a writ of certiorari, and other special motions, shall be printed, and be accom- panied by printed briefs. (4) No motion to dismiss, except on special assignment Notice to adverse party, by the court, shall be heard, unless previous notice has been given to the adverse party or his counsel. Rule XXI] RULES — CIRCUIT COURT OF APPEALS 287 (5) Any motion, of which counsel shall have given notice to the clerk in advance, shall be entered Priority ot entered mo- on the clerk's list in the order in which *'°""' he receives notice thereof, and shall have priority in that order before other motions, unless otherwise specially ordered by the court. (6) Half an hour on each side shall be allowed to the argument of a motion, and no more, HaU hour for argument, without special leave of the court granted before the ar- gument begins. Second, Fourth, Fifth, Seventh, and Eighth Circuits — (1) All motions to the court shall be reduced to writing, and shall contain a brief statement of the facts and objects of the motion. (2) One hour on each side (one-half hour in the Seventh Circuit) shaU be allowed to the argument of a motion, and no more, without special leave of the court, granted before the argument begins. (3) No motion to dismiss, except on special assignment by the court, shall be heard, unless previous notice has been given to the adverse party, or the counsel or attorney of such party. In the Third Circuit this rule is numbered 22 and is the same as Clauses 1 and 2 in the Second Circuit as printed above. In the Sixth Circuit this rule is numbered 24 and is as follows: (1) Motions shall be filed with the clerk and shall contain a brief statement of the facts, and of the objects of the motion, and be accompanied by such affidavits as are thought proper. (2) Counsel making the motion shall serve a copy thereof and of the accompanying papers and a notice of hearing upon the adverse counsel, and also copy of any brief or argimient to be presented in support of the motion. Such notice may be for any day after four days from the service. The oppos- ing party may, on or before the day named in the notice, or within any extension of time made by the court or a judge thereof, file counter-showing or brief, and the motion will then stand submitted, unless oral argument is directed. 288 RULES— CIRCUIT COURT OF APPlEALS [Rule XXII Except by stipulation, no motion will be considered without acknowledgment, or proof of such notice. (3) Upon motions, there will be no oral argument, except by leave of the courts first obtained, and in such case, the court will fix the day for hearing and the time to be allowed for argument, and the clerk will notify counsel. In the Ninth Circuit ^ this rule is the same as in the Second Circuit except that the words "and shall be served upon op- posing counsel at least five days before the day noticed for the hearing" are added at the end of the first section thereof. And in the 2d clause one-half hour on each side for argu- ment is prescribed. Rule XXII — Call and Order of the Calendar First Circuit — (1) On the first Tuesday of October and of Cases called in their January and on the second Tuesday of °'^^'' April the court, except as may from time to time be otherwise ordered, will commence calling cases for argument in the order in which they stand on the cal- endar and proceed from day to day during the session in the same order, but no case from the District of Massachu- setts shall be called before the second Tuesday of the ses- sion. (2) Where no counsel appears and no brief has been filed Defendant may have for the plaintiff in error or appellant, cause dismissed, when no ^^ ' appearance by piaintis. when the case is Called for trial the defendant may have the plaintiff called and the writ of error or appeal dismissed. (3) Where the defendant fails to appear when the case Cause may be heard ex is called for trial the court may proceed parte when defendant '' " iaUs to appear. to hear an argument on the part of the plaintiff and to give judgment according to the right of the case. (4) When a case is reached in the regular call of the calendar No appearance for and there is no appearance for either either jiarty, cause may ^^ be dismissed. party the case may be dismissed at the cost of the plaintiff. ' Motions. — When typewritten, an original and three copies should be filed. Rule XXII] RULES — CIRCUIT COURT OP APPEALS 289 (5) If either of the parties is ready when the case is called the same will be heard; and if neither when either party , ,, ready, case heard when party shall be ready the case may be oaiied.— Neither party ,, . , , ready, cause may be poat- dismissed, or be postponed to the next poned or dismissed, session as the court may order. (6) If a case is called for hearing at two stated sessions successively, and upon the call at the when neither party second session, neither party is prepared ™cce''ssrv^°''terms,"*cau™ to argue it, it will be dismissed at the ^^'°^^^- cost of the plaintiff in error or appellant, unless sufficient cause is shown for further postponement. (7) The court will not hear arguments on Mondays or Saturdays, unless for special cause it no arguments on Mon- Shall so order. days or Saturdays. (8) Five cases are liable to be called on the coming in of the court on each day. Kve cases called daily. (9) Revenue and other cases which concern the United States and which also involve or affect what causes may be some matter of general public interest, »"^™'"'^'*- and criminal cases, and cases once adjudicated by this court on their merits and again brought up by writ of error or ap- peal, may be advanced by order of the court. (10) Two or more cases involving the same question may, by leave of the court, be heard what causes may be together, to be argued as one case or ^" °^°' "" more, as the court may order. (11) No agreement of counsel to pass or postpone a case, or to substitute one case for another, shall become effective except on leave. Second, Third (where it becomes Clauses 5-2 and 4 of Rule 19) Fifth and Seventh Circuits — (1) Where no counsel appears, and no brief has been filed for the plaintiff in error or appellant, when the case is called for trial, the defendant may have the plaintiff called and the writ of error or appeal dismissed. (2) Where the defendant fails to appear when the case is called for trial, the court may proceed tq hear an argu- ment on the part of the plaintiff and to give judgment ac- cording to the right of the case. 19 290 KULES— CIRCUIT COURT OF APPEALS [Rule XXII (3) When a case is reached in the regular call of the docket, and there is no appearance for either party (and no brief on file for the appellant or plaintiff in error — as printed in the 5th Circuit), the case shall be dismissed at the cost of the plaintiff. In the Fourth Circuit the rule reads: (1) When a case is called for hearing, and no counsel ap- pears, and no brief has been filed for the plaintiff in error or appellant, the defendant in error or appellee may have the adverse party called and the writ of error or appeal dis- missed. (2) Where the defendant in error or appellee fails to appear when the case is called for hearing, the court may proceed to hear argument on the part of the plaintiff in error or appel- lant, and to give judgment according to the right of the case. (3) When a case is reached in the regular call of the docket, and no counsel appears for either party, and no submission of the case is asked, the case may be dismissed at the cost of the plaintiff in error or appellant. In the Sixth Circuit this rule is as follows: (1) Upon the expiration of the' time limited for filing briefs, the case shall stand for hearing when reached. (2) A calendar, containing all cases docketed and not heard, shall be printed by the clerk for the October, January and April sessions. The cases on the calendar which stand for hearing under Clause 1 will be called for argument in their order (as far as practicable) on the calendar, except as special advancements may have been made. (3) By leave of court and on motion of either party (1) cases entitled by statute to precedence, (2) criminal cases, (3) appeals, writs of error or petitions to revise in bank- ruptcy matters, and (4) cases which are for the second time in this court, — may be advanced and set for a designated ses- sion. The court may also, on its own motion or for good cause shown on motion of either party, advance any case to be heard at any session, though the time permitted under the rules for filing briefs may not have expired at the day set for hearing. (4) Not more than three cases will be heard on one day Rule JCXlil] RtJLBS— CliiCUIT COITRT OF APl>EALS 291 (counting, however, -as one case, two or more which are heard together). The call for the next day shall, at the adjournment of court, be exhibited in the clerk's office. Counsel choosing to rely on the judgment of the clerk as to the probable time of hearing any case must do so at their own risk. (5) When the case is called, if either party is ready, the case will be heard. If there is no appearance for either party, the case will be dismissed. If the appellant does not appear by counsel or by printed brief but the appellee does appear, the case will be dismissed. If the appellant appears and the ap- pellee does not, the court will hear the appellant. (6) By agreement of counsel in open court or by stipula- tion filed in the clerk's office, hearing may be continued once to any later session during the term or from the last session of one term to the first session of the next term, but not to a later day during the same session. Subsequent con- tinuances can be made only by the court and will be only for reasons satisfactory to the court; and engagement of counsel in other courts will not be considered good cause. (7) Two or more cases, involving the same question, may by order of the court, be heard together, but they must be argued as one cause. In the Eighth and Ninth Circuits it is the same as in the Second Circuit, except that the words "in error or appel- lant" are added at the end of third section. Rule XXIII — Printing Records First Circuit — (1) In all cases, the plaintiff in error or appellant, on docketing a case and filing wten^^ cause ^^ docketed. the record, shall enter into an under- to be given. taking to the clerk, with surety to his satisfaction, for the payment of his fees, or otherwise satisfy him in that behalf. (2) The clerk shall cause an estimate to be made of the cost of printing the record, and of his cierk to make estimate fee for preparing it for the printer, and o'^^t^ofprintrng. shall notify to the party docketing the case the amount of the estimate. If he shall not pay it within a reasonable time, the clerk shall notify the adverse party, and he may 292 RULES— cmcUIT COURT OF APPEALS [Rule XJttll pay it. If neither party shall pay it, ^nd for want of such payment the record shall not have been printed when the case is reached at the regular call of the docket, the case may be dismissed. (3) Upon payment by either party of the amount es- Twenty-five copies of tlmatcd by the clerk, twenty-five copies record printed. ^f ^j^g rscord shall be printed under the clerk's supervision, for the use of the court and of counsel. (4) The clerk shall take to the printer the original tran- originai transcript used script On file; but shall cause copies to by printer. j^g made for the printer of such original papers sent up under Rule 14, or other original papers, as are necessary to be printed. (5) The clerk shall supervise the printing, and see that Clerk to supervise print- the printed copies are properly indexed: ing and distribute the .... record. and he shall distribute printed copies to the judges, and the reporter, from time to time, as re- quired, and three copies to the counsel for each party. An additional number of copies may be printed at the request of either party for his own use and at his own expense, or by order of the court. (6) The parties may stipulate in writing that parts only On stipulation, parts of of the record shall be printed, and the record only to be printed. ^^^^ ^^^ ^^ ^^^^^ ^^ ^^^ ^^^^ ^ printed ; but the court may direct the printing of other pari/S of the record. (7) The clerk may receive from either party, and use as Printed record of other parts of the printed record, so far as courts may be used. ^^^ ^^^^ ^^^ ^^ ^j ^^^^^ ^^^ ^^^_ venient size and type, any portions which have been printed in any other court, and also printed copies of patents and other exhibits, allowing the party furnishing the same such sum therefor as the clerk deems reasonable, to be added to and form a part of the cost of printing. (8) If the actual cost of printing the record, together Surplus of costs paid, with the fee of the clerk, shall be less refunded. ^j^^^^ ^j^^ amount estimated and paid, the amount of the difference shall be refunded by the clerk to the party paying it. If the actual cost and clerk's fee shall Rule XXIII] RULES — CIRCUIT COURT OF APPEALS 293 exceed the estimate, the excess shall be paid to the clerk before the delivery of a printed copy to either party or his counsel. (9) In case of reversal, affirmance, or dismissal, with costs, the cost of printing the record costs of printing- record and the clerk's fee shall be taxed against *'^^'^ "^ ''°^''- the party against whom costs are given, and shall be in- serted in the body of the mandate or other proper process. Second Circuit — On the filing of the transcript in every case, the clerk shall forthwith cause fifteen copies of the same to be printed, and shall furnish three copies thereof to each party, at least thirty days before the argument, and shall file nine copies thereof in his office. The parties may stipulate in writing that parts only of the record shall be printed, and the case may be heard on the parts so printed; but the court may direct the printing of other parts of the record. The clerk shall be entitled to demand of the appellant, or plaintiff in error, the cost of printing the record, before ordering the same to be done. If the record shall not have been printed when the case is reached for argunaent, for failure of a party to advance the costs of printing, the case may be dismissed. In case of reversal, affirnaance, or dismissal, with costs, the amount paid for printing the record shall be taxed against the party against whorn costs are given. ^ Third Circuit — (1) It shall be the duty of the clerk, im- mediately after the record of any case shall have been filed with him and docketed and the deposit fee of twenty-five dollars shall have been paid, to notify counsel for all parties that he will print only the parts of the record mentioned in the second section of this rule, specifying what those parts shall be, and to notify the counsel for plaintiff in error or appellant of his estimate of the cost of printing such parts of the record and of his fee for preparing the parts for the printer, indexing the same and supervising the printing thereof. He shall print no other parts of the record unless, within ten days after such notice, he receives from some one ^ See Clause 1, Rule 36, Second Circuit, page 347, corresponding with Clause 1, Rule 23, First Circuit. 294 RULES — CIRCtTIT COURT OF APPEALS [Rule XXIII or more of the counsel a written certificate that in his or their judgment other specified parts thereof should be printed in order to enable this court properly to decide the questions raised, in which event the parts so certified as necessary shall also be printed. The court may, in its discretion, direct the printing of other parts of the record, and, in lieu of printing patents or other exhibits, separate printed copies thereof, not less than ten in number, may be filed with the clerk. If other parts of the record than those specified in his notice shall be required to be printed by any of the counsel, or by this court, the clerk shall immediately notify the counsel for the plaintiff in error or appellant of his estimate of the additional cost of preparing, printing and indexing such other parts. The plaintiff in error or appellant shall pay to the clerk, within ten days after notice of any estimate, the amount thereof, in default of which the writ of error or appeal may be dismissed upon the motion of the opposite party, or by the court of its own motion. (2) Unless additional parts of the record shall be required to be printed under the provisions of the first section of this rule, the clerk shall print, for the use of the court, only the following parts thereof: In writs of error — (a) The docket entries. (fe) The pleadings upon which the case was tried. (c) The bill of exceptions. (d) The motion and reasons for judgment non obstante vere- dicto, if any. (e) The opinion of the court below, if any. (/) The charge to the jury, if any. (g) The verdict of the jury, if any. (h) The judgment entered. (i) The assigimfients of error. In appeals — (a) The docket entries. (6) The pleadings on which the case was heard and deter- mined. (c) The evidence, if any, on which it was heard and deter- mined. Kule XXIII] RULES — CIKCUIT COURT OF APPEALS 295 (d) The report of the examiner, master, auditor, referee or other officer who first decided the case, if any. (e) The exceptions to that report, if any. (/) The opinion of the court, if any. (g) The judgment or decree entered. (h) The assignments of error. In bankruptcy and other cases not being strictly within either of the above classes, the printed record shall conform as nearly as may be practicable to the record in appeals. (3) The clerk shall cause twenty-five copies of the record to be printed, and three copies thereof to be furnished to the counsel of the plaintiff in error or appellant, and also three copies to each of the counsel who shall have entered appear- ance for any of the other parties, and the remaining copies to be filed in his ofiice, all, if possible, within thirty days after the payment to him of the amount of his estimate made under the provisions of the first section of this rule. (4) The clerk shall supervise the printing of the record, have it properly indexed and distribute printed copies thereof to the judges of the court from time to time as required. (5) If the actual cost of printing the record and the clerk's fee of twenty-five cents per page for preparing the record for the printer, indexing the same, supervising the printing and distributing the copies, shall be less than the amount esti- mated and paid, the clerk shall refund the difference to the party paying the same, but if they shall exceed the clerk's estimate the amount of such excess shall be paid to the clerk before he shall file the printed copies of the record or deliver any of them to the parties. (6) In case of reversal, affirmance or dismissal, with costs, the actual cost paid for printing the record by the party in whose favor costs are awarded, and the clerk's fee for super- vising the printing, etc., where such fee is paid by the party in whose favor costs are awarded, shall be taxed against the party against whom costs are given and shall be inserted in the body of the mandate or other proper process. (7) Each printed record shall show, by a note or memoran- dum, the time when each pleading or document was filed, and 296 RULES — CIRCUIT COURT OF APPEALS [Rule XXIII shall contain at the tops of its pages running titles of its con- tents. (8) In any case where the record, or any part thereof, has been printed in the court below, the same may be embodied in and used as the printed record of this court; provided, the manner and style of the printing shall correspond with the requirements of the several sections of this rule for printing done under the supervision of the clerk of this court; but the plaintiff in error or appellant shall pay to the clerk of this court, not only the deposit fee of twenty-five dollars upon filing the record and having it docketed, but alsO the fee prescribed by Rule 29 for preparing the record for the printer, indexing the same, supervising the printing and distributing the copies thereof. (9) The clerk shall, on or before the conclusion of each case, collect and file for preservation in this court three copies of the printed record and of each brief, printed motion and argu- ment submitted in such case, and shall, immediately after the mandate in any case shall have been sent down to the lower court, notify the defeated party in this court that un- less he removes the remaining copies of the record and briefs within ten days after notice so to do, the same will be de- stroyed. Fourth Circuit — This rule shall apply only to cases in which Printing records by con- couusel for all parties to any cause pend- °°°'' ing in this court, or about to be brought into this court, shall by stipulation, in writing, filed with the clerk of the court below, agree to be governed by the terms hereof. (1) The transcript may be made and the record printed as has been heretofore the practice of this court, and the same shall, subject to the provisions of sees. 3, 6 and 7 of Rule 14, be made up by the clerk of the court below and transmitted to this court under his hand and seal as heretofore. (2) All records in such cases shall be printed under the supervision of the clerk of this court by such printer and at such rate as this court may designate. In such cases, upon the payment of the estimated cost of printing, together with the supervising and other fees established by law (which Rule XXIII] RULES — CIRCUIT COURT OF APPEALS 297 amount shall be deposited with the clerk within ten days after notice thereof), the clerk shall cause to be printed thirty-five copies of the record, twenty-five copies of which shall be filed for the use of the court, three copies furnished to the adverse party, and the remaining copies to be delivered to the appellant, plaintiff in error or petitioner. (3) The parties may stipulate in writing that parts only of the transcript of the record shall be printed, and the case may be heard on the parts so printed, but the court may direct the printing of other parts of the record. (4) If thie record shall not have been printed when the case is reached on the regular call of the docket, the case may be disniissed. (5) In case of reversal, affirmance, or dismissal, with costs, the amount paid for the printing of the record and the clerk's fees for supervising the same shall be taxed against the party against whom costs are given. (6) In cases brought here under this Rule it shall be the duty of the plaintiff in error or appellant to docket the case and file the record thereof with the clerk of this court by or before the return-day, whether in vacation or in term time. But for good cause shown the justice or judge who signed the citation, or any judge of this court, may enlarge the time by or before its expiration, the order of enlargement to be filed with the clerk of this court. If the plaintiff in error or appel- lant shall fail to comply with this rule, the defendant in error or appellee may have the cause docketed and dismissed upon producing a certificate, from the clerk of the court wherein the judgfiaeht or decree was rendered, stating the case and cer- tifying that such writ of error or appeal has been duly sued out or allowed. And in no case shall the plaintiff in error or appellant be entitled to docket the case and file the record after the same shall have been docketed and dismissed under this rule, unless by order of the court. (7) But the defendant in error or appellee may, at his op- tion, docket the case and file a copy of the record with the clerk of this court; and if the case is docketed and a copy of the record filed with the clerk of this court by the plaintiff in error or appellant within the period of time above limited and 298 RULES— CIRCUIT COURT OF APPEA.]fcS [Rule XXIII prescribed by this rule, or by the defendant in error or ap- pellee at any time thereafter, the case shall stand for argu- ment at the term. (8) Upon the filing of the transcript of a record brought up by writ of error or appeal, the appearance of the counsel for the party docketing the case shall be entered as of course. Fifth Circuit — (1) The clerk shall, upon the docketing of a case, forthwith cause an estimate to be made of the cost of printing the record and of his fee for preparing it for the printer and supervising the printing, and shall notify the part; docketing the case of the amount of the estimate. If he shall not pay it within fifteen days in ordinary cases, and within three days in preference cases, after the date of such notice, the clerk shall notify the adverse party, and he may pay it. If neither party shall pay it, and for want of such payment the record shall not have been printed when a case is reached for hearing, the case may be dis- missed at the discretion of the court. (2) The clerk shall cause the record in all cases to be printed forthwith after the payment of such estimate, and shall immediately thereafter furnish to the counsel of each party whose appearance shall have been entered, three copies of the printed record, taking a receipt therefor, and the parties may, by written stipulation filed prior to the printing of the record, agree that only parts of the record shall be printed, and the same may be heard only on the parts so printed, but the court may direct the printing of other parts of the record. (3) The clerk shall take to the printer the original tran- script on file, but shall cause copies to be made for the printer of such original papers sent up under Rule 14, or other original papers, as are necessary to be printed. (4) The clerk shall cause at least twenty-five copies -of the record to be printed, and may print a larger nimaber on the request of either party on payment of the amount neces- sary for the printing of such extra copies. Ordered, that Paragraph 5 of Rule 23, of the standing rules of this court be amended so as to read as follows: (5) The clerk shall supervise the printing and see that Rule XXIII] RULES — CIRCUIT COURT OF APPEALS 299 the printed record is properly indexed. There shall be omitted from the printed transcripts the following: (i) Commissions to take testimony, and the formal cap- tions to all depositions, and the certificates of commissioners as to the taking of the depositions, except in cases where objections have been made to the depositions on account of defects in caption or certificate. (ii) All process in the nature of subpoenas, citations sum- mons, and subpoenas in chancery, unless from the assign- ment of errors it appears that some issue is raised which makes it necessary for the court to inspect such writs, and then only such as are involved. In every transcript wherein any pleading, exhibit, or other paper appears at more than one place, such pleading, ex- hibit, or other paper shall be printed at the place it first appears in said transcript, and not thereafter; but the omis- sion shall be indicated by apt notations and references to the pages of the printed record where it appears. The clerk shall distribute the printed copies to the judges of the court and to the reporter from time to time, as re- quired. If the cost of printing the record, together with the clerk's fee for supervising the same, shall be less than the amount estimated and paid, the difference shall be refunded by the clerk to the party paying the same. If the actual cost and the clerk's fee shall exceed the clerk's estimate, the amount of such excess shall be paid to the clerk before he shall deliver or file the printed record or any copies thereof. (6) In case of reversal, afiirmance, or dismissal, with costs, the amount of the cost of the printing of the record and of the clerk's fee for supervising the same, shall be taxed against the party against whom costs are given, and shall be inserted in the body of the mandate or other process. (7) The clerk shall receive from either party and use as parts of the printed record so far as the same may be of proper size and type, any portions which may have been printed in any other court, and also printed copies of patents and exhibits, allowing the party furnishing the same such 300 RULES — CIKCTJIT COURT OF APPEALS [Rule XXIII sums therefor as the clerk deems reasonable, to be added to and form a part of the cost of printing. Sixth Circuit — The rule is numbered 19 and reads as follows: Rule 19 — Printing Records. (1) In cases where the record is printed by the appellant under Act of February 13, 1911, he shall file with the clerk twenty-five printed copies thereof within the time as limited or extended for making return to writ of error or appeal. The clerk shall examine the printed records so offered to ascertain whether the transcript complies with Rule 15, and also, whether the printed records comply with the statute and are properly indiexed. If, in his judgment, they are insuffi- cient in any particular, he shall bring the matter to the atten- tion of the court, which will thereupon make such order as to it may seem proper for corrected or supplementary return and printed records. As soon as the printed records are approved as filed or perfected as ordered, the clerk shall deliver one copy to each counsel or group of counsel represent- ing a separate interest, and shall continue such distribution as counsel subsequently appear. (2) The clerk shall, from time to time and as directed by the senior Circuit Judge, receive proposals for printing such records as are tp be printed by the clerk, which proposals shall be submitted to such judge, who will, in his discretioji, award sweh printing to the most satisfactory bidder; and the same shall be done, during the period of such award, by the person to whom it is made. (3) In cases where appellant is not proceeding under such statute, the clerk shall at once, upon the docketing of the case, cause an estimate to be made of the cost of printing the record, including his supervising fee as provided in the table of costs following Rule 27, and notify counsel for appellant of the estimated amount, which shall be pa,id to the clerk within ten days after such notice. If not so paid, the case may be dismissed upon motion or by the court upon its own motion. Supplemental estimates and payments thereof shall be made, if necessary; any excess pajonent shall be refunded, when the printing is finished. When the record iEluie XXIli] RULES — CIECUIT COURT OF APPEALS 301 was printed upon a former review of the same case, and enough old records to be reasonably sufficient for use upon the hearing are on file or available, the use of such old records, in lieu of pruitmg, will be permitted, upon the order of the presiding judge, and to the extent specified in such order. (4) At once, upon the payment of such estimate, the clerk shall cause twenty-five copies of the record to be printed forthwith, shall file the same and shall distribute three copies of the same to counsel for each separate adverse interest then or thereafter appearing. Before printing, he shall examine the transcript to ascertain whether it complies with Rule 15, and if, in his judgment, it omits anything required by that rule, he shall submit the matter to the court, which will make such order as to it may seem proper regarding a corrected or supplementary return; and the printing shall be delayed until the filing of any further return so ordea-ed. In printing, the clerk shall omit any matters contained in the transcript which, by Rule 16, are required to be omitted. If the appellant shall in writing and before the record is printed, request the clerk so to do, he shall print fifty copies instead of twenty-five. If the appellee shall request such additional copies to be printed, the clerk shall comply with such request, if the appellee, upon demand, advances to him the estimated cost of printing the additional twenty-five copies. If, later, a review in the Supreme Court is sought, the clerk shall deliver such twenty-five copies to the party seeking a review; but if such additional records are wanted by the party who did not pay for the printing thereof, the clerk shall require payment to him of the actual cost of such additional printing and shall refund the same to the party who had paid therefor. (5) Where the record is printed by the appellant, he shall file therewith proof by affidavit of the actual cost of such printing, including the amount paid to the clerk in the District Court for the transcript. The amounts paid to the clerk of the District Court for the manuscript transcript and to the clerk of this court for printing and for his fees in connection therewith, or the amounts so shown to have been paid below by appellant (not exceedmg, for printing, the 302 RULES— clECtrlT cOtrtl* Of' AftEALs [Rule XXltl amount which printing and supervision by the clerk of this court would have cost) shall form a part of the costs of the cause in this court and shall be taxed against the party against whom the costs are given and shall be inserted in the mandate or other proper process. Seventh Circuit — (1) In all cases the plaintiff in error or appellant on docketing a case and filing the record shall enter into an undertaking to the clerk with surety to be approved by the clerk for the payment of all costs which shall be incurred in the cause, shall deposit with the clerk twenty-five dollars ($25.00) to be applied to the payment of costs and fees, and from time to time when necessary shall, on the demand of the clerk, make further deposits for that use. (2) The clerk, upon the docketing of a case, shall forth- with cause an estimate to be made of the cost of printing the record and of his fees for preparing it for the printer and for supervising the printing thereof, and shall at once notify the attorney for the plaintiff in error, or appellant, of the amount of such estimate, which shall be paid to the clerk within ten days after such notice. If not so paid, the writ of error or appeal may be dismissed upon the motion of the opposite party, or by the court of its own motion. (3) The clerk shall cause the record in each case to be printed forthwith after the payment of such estimate, and shall immediately thereafter furnish to each of the respec- tive parties at least three copies of the printed record, taking a receipt therefor. The parties may, by written stipulation filed with or prior to the filing of the record, agree that only parts of the record shall be printed, and the case will be heard on the parts so printed only, unless the court shall direct the printing of other parts. (4) The clerk shall cause at least twenty-five copies of the record to be printed and may print a larger number on the request of either party on the payment of the amount necessary for the printing of such extra copies. (5) The clerk shall supervise the printing and see that the printed record is indexed properly, and in a manner to indicate briefly the character of each document and ex- Rule XXIIIj RULES— CIECUIT COURT OF APPEALS 303 hibit referred to. He shall distribute the printed copies to the judges of the court from time to time as required. If the cost of printing the record, together with the clerk's fee for supervising the same, shall be less than the amount estimated and paid, the difference shall be refunded by the clerk to the party paying the same. If the actual cost and the clerk's fee shall exceed the estimate, the amount of the excess shall be paid to the clerk before he shall deliver or file the printed record or any copies thereof. (6) In case of reversal, affirmance, or dismissal, with costs, the amount of the cost of the printing of the record and of the clerk's fee for supervising the same shall be taxed against the party against whom costs are given and shall be inserted in the body of the mandate or other proper process. (7) Upon the clerk's producing satisfactory evidenpe by affidavit, or the acknowledgment of the parties or their sureties or attorneys, of having served a copy of the bill of fees, due from them respectively in this court on such parties, their sureties or attorneys, an attachment shall issue against such parties or their sureties respectively, to compel the payment of said fees. (8) The clerk shall adopt a uniform size for the printing of all records, and the same shall be printed in small pica type, on clear white paper, with a margin of not less than an inch and a half, and show by a note or memorandum the time when each pleading or document was filed, and the printed record shall also contain running titles of its con- tents. (9) The briefs of attorneys shall also be printed and con- form as nearly as practicable to the size of the printed record. (10) The clerk shall, on or before the conclusion of each case, collect and file, or otherwise preserve together, one copy of the printed record and of each brief, printed motion and argument submitted in each case. (11) In any case where the record shall have been printed in the court below, the presiding judge may on the applica- tion of the plaintiff in error or appellant order that such printed record may be used in place of the printing herein- before provided for. But the clerk shall prepare and cause 304 BULES— CIRCUIT COURT OF APPEALS [Rule XXIII to be printed and attached to the printed record an index thereof, and shall be paid the same fees for the indexing and supervising of such printed record as if printed under his supervision. (12) The clerk of this court shall obtain sealed proposals for the printing hereinbefore provided for, which proposals shall be submitted to the senior circuit judge of the court, who shall award such printing to the lowest and best bidder, and all such printing shall be done by the person to whom the same is so awarded, except in emergencies, when printing may be done by another at the same or less price and when a case shall be heard upon the record printed below, the costs for printing shall be taxed on the basis of actual cost not exceeding the rate of the accepted bid. (13) The fees of the clerk of this court, as prescribed by order of the Supreme Court, made February 28, 1898, are as follows: ^ Eighth Circuit — (1) In cases brought to this court in which the plaintiff in error or appellant elects to waive the printing of the record under the provisions of the Act of Congress, entitled "An act to diminish the expense of proceedings on appeal and writ of error or of certiorari" approved Febru- ary 13, 1911, and file a typewritten or manuscript transcript of the record in this court such plaintiff in error or appellant may, within twenty days after the allowance of any writ of error or appeal, serve on the adverse party a copy of a state- ment of the parts of the record which he thinlis necessary for the consideration of the errors assigned, and file the same, with proof of service thereof, with the clerk of this court; the adverse party, within twenty days thereafter, may designate in writing and file with the clerk additional parts of the record which he thinks material, and, if he shall not do so, he shall be held to have consented to a hearing on the parts designated by the plaintiff in error or appellant. If parts of the record shall be so designated by one or both of the parties, the clerk shall print those parts only; and the court will consider nothing but those parts of the record in determining the questions raised by the errors assigned. If > Here follows the tabla of foes printed under Rule 31, pages 333-334. Rule XXIII] RULES— CIRCUIT COURT OF APPEALS 305 at the hearing it shall appear that any material part of the record has not been printed, the writ of error or appeal may be dismissed, or such other order made as the circumstances may appear to the court to require. If the defendant in error or appellee shall have caused unnecessary parts of the record to be printed, such order as to costs may be made as the court shall think proper. (2) On the filing of the transcript in every case the clerk shall cause the same, or the parts thereof designated under this rule, to be printed, and shall furnish three copies of the record so printed to each party at least sixty days before the argmnent. (3) In cases brought to this court in which the record has been printed and used upon the hearing in the court below, and which substantially conform to the printed records in this court, the plaintiff in error or appellant upon application to and by leave of this court, may furnish to the clerk twenty-five copies of such record, used on the hearing in the court below, to be used in the preparation of the printed record in this court; and the clerk's fee for preparing the record for the printer, indexing same, super- vising the printing and distributing the copies, shall be computed as if said record so furnished had been printed under his supervision. (4) The clerk shall be entitled to demand of the appellant or plaintiff in error the cost of printing the record before ordering the same to be done. (5) If the record shall not have been printed -when the case is reached for argument, for failure of "the party to advance the costs of printing, the case may be dis- missed. (6) In case of reversal, affirmance, or dismissal, with costs, the amount paid for printing the record shall be taxed against the party against whom costs are given. (7) In any case brought to this court in which the record has been printed, in which a certiorari shall be granted, under the provision of Rule 18 of this court, the return to such writ of certiorari shall be printed in the same manner as the record was. 20 306 RULES — CIRCUIT COURT OF APPEALS [Rule XXIII (8) If in any cause in which the record or a portion thereof has been printed it shall be made to appear to this court that the printed transcript does not substantially conform to the requirements of the rules of this court, it may be rejected and stricken from the files and such order relative thereto may be entered as the court shall deem proper. Ninth Circuit — (1) All records shall be printed under the supervision of the clerk, and upon the docketing of a cause he shall cause an estimate to be made of the expense of printing the record, and his fee for preparing it for the printer and supervising the printing, and shall notify the party docketing the case of the amount of the estimate. If the amount so estimated is not promptly paid over to the clerk, and for want of such payment the record shall not have been printed when a case is reached for argument, the case shall be dismissed. ' (2) Upon payment of the amount estimated by the clerk, thirty copies of the record shall be printed under his super- vision for the use of the court and of counsel. (3) In cases of appellate jurisdiction the original tran- script on file shall be taken by the clerk to the printer. But the clerk shall cause copies to be made for the printer of such original papers sent up under Rule 14, sec. 4, as are necessary to be printed; and the whole of the record in cases of original jurisdiction. (4) In all cases, including cases in which the record may have been printed under the Act of Congress, approved February. 13, 1911, or otherwise, the clerk of this courf shall index the printed record, and distribute the printed copies to the judges and the reporter, and one or more printed copies to the counsel for the respective parties. (5) If the expense of printing and supervision shall be less than the amount estimated and paid, the clerk shall refund the difference to the party paying same. If the ex- pense is greater than the estimate the amount of such excess shall be paid to the clerk before he shall file the printed record or deliver copies to the parties or their counsel. (6) In case of reversal, affirmance, or dismissal, with costs, the amount paid for printing the record and of the iRuleXXIll] EULES— CIRCUIT COURT OF APPEALS 307 clerk's fee shall be taxed against the party against whom costs are given. (7) The plaintiff in error or appellant may, upon filing the record in this court, file with the clerk a statement of the errors on which he intends to rely, and of the parts of the record which he thinks necessary for the consideration thereof, and forthwith serve on the adverse party a c«py of such statement. The adverse party within ten days there- after may designate in writing, filed with the clerk, ad- ditional parts of the record which he thinks material; and, if he shall not do so, he shall be held to have consented to a hearing on the parts designated by the plaintiff in error or appellant. If parts of the record shall be so designated by one or both of the parties, or if such parts be distinctly designated by stipulation of counsel for the respective parties, the clerk shall print those parts only; and the court will consider nothing but those parts of the record, and the errors so stated. If at the hearing it shall appear that any material part of the record has not been printed, the writ of error or appeal may be dismissed, or such other order made as the circumstances may appear to the court to require. If the defendant in error or appellee shall have caused unnecessary parts of the record to be printed, such order as to costs may be made as the court shall think proper. All statements and stipulations filed hereunder shall distinctly and accurately refer to the pages of the original certified record, as well as the documents to be printed or omitted. (8) At the time of filing the record and docketing the cause, counsel for the plaintiff in error or appellant in patent cases may furnish the clerk with copies of patent office drawings and specifications to be used as inserts, and the same, if in proper form and of convenient size, shall be used in printing the record. (9) In all cases, including cases in which the record may have been printed under the Act of Congress approved February 13, 1911, or otherwise, the fee of the clerk of this court for performing the services herein required shall be 308 RULES— CIRCUIT COURT OF APPEALS [Rule XXIV twenty-five cents for each printed page of the record and index, as provided by law. Decisions Where the record is before the appellate court it has power to allow parts only to be printed. It has no power to allow a record used on a form§r appeal to be used in a second appeal. Merriman ij. Chicago, D. & V. R. Co., 120 Fed. R. 240-242, 56 CCA. 636. The remedy for a defective record is by certiorari for a diminution of the record and not by motion to dismiss the appeal. Ih. 242. The Act of July 20, 1892, giving the right to sue in forma pauperis, is limited to courts of original jurisdiction. Bradford v. Southern Ry. Co., 195 17. S. 243, 49 L. ed. 178. Case of Reed v. Pennsylvania Ry. Co., Ill Fed. E. 714, 49 CCA. 572, overruled, and Rule 16 of the Sixth Circuit modified to conform to the decision of the Supreme Court above. In re Bradford's Petition, 139 Fed. B. 518, 71 C C A. 334. In view of the hmitations which Congress has thrown around the privilege of suing in forma pauperis, by confining the right to so sue to courts of original jurisdiction. Rule 23 should be enforced in all cases. lb. 519. The application of the coercive powers of the court to enforce com- pliance with its rules does not necessarily require that the dismissal of a case, without regard to the merits of the controversy shall be the penalty for an infraction of rules. On the other hand, the court wUl not grant indulgence to an appellant merely for his convenience, when not neces- sary to serve the ends of justice. Matsummra v. Higgins, 187 Fed, R. 601, 109 C C A. 431. Rule XXIV— Bnefs First Circuit — (1) The counsel for the plaintiff in error Plaintiff's counsel to file or appellant, shall file with the clerk of 20 copies of bnef six ^ ^ ' days before case called, this court, at least six days before the case is called for argument, twenty copies of a printed brief, one of which shall, on application, be furnished to each of the counsel engaged upon the opposite side. Contents and arrange- (2) This brief shall Contain, in order ment of brief for plain- ^ ' > ^ tiff- here stated, — (i) A concise abstract, or statement of the case, pre- Rule XXlV] RtTLES — CIRCUIT COURT OF APPEALS 309 senting succinctly the questions involved, in the manner in which they are raised. (ii) A specification of the errors relied upon, which, in cases brought up by writ of error, shall set out separately and particularly each error asserted and intended to be urged; and, in cases brought up by appeal, the specification shall state, as particularly as may be, in what the decree is alleged to be erroneous. When the error alleged is to the admission or to the rejection of evidence, the specification shall quote the full substance of the evidence admitted or rejected. When the error alleged is to the charge of the court, the specification shall set out the part referred to totidem verbis, whether it be in instructions given or in in- structions refused. When the error alleged is to a ruling upon the report of a master, the specification shall state the exception to the report and the action of the court upon it. (m) A brief of the argument, exhibiting a clear state- ment of the points of law or fact to be discussed, with a reference to the pages of the record and the authorities relied upon in support of each point. When a statute of a State is cited, so much thereof as may be deemed nec- essary to the decision of the case shall be printed at length. (3) The counsel for a defendant in error or an appellee shall file with the clerk twenty printed Defendant's, counsel to copies of his brief at least three days three^VyTbefore 'Jiase before the case is called for hearing. ™"®'*' His brief shall be of a like character with that required of the plaintiff in error or appellant, except that no specification of errors shall be required, and no statement of the case, unless that presented by the plaintiff in error or appellant, is controverted. (4) When there is no assignment of errors, as required by sec. 997, Rev. Stats. {U. S. Comp. No assignment of errors. Stats. 1901, p. 712), counsel wiU not be °'^°^^p^-'^^- heard, except at the request of the court; and errors not specified according to this rule will be disregarded; but the court, at its option, may notice a plain error not assigned or specified.^ 1 See Rule 11, page 239. 310 RULES — CIRCUIT COURT OF APPEALS [Rules XXIV (5) When according to this rule, a plaintiff in error or Plaintiff in default; an appellant is in default, the case may fendant ifdSr^ot be dismissed on motion; and when a ^^"^- defendant in error or an appellee is in default, he will not be heard, except on consent of his ad- versary, and by request of the court. (6) When no counsel appears for one of the parties, and When but one counsel no printed brief or argument is filed, ^'"■'^- only one counsel will be heard for the adverse party; but, if a printed brief or argument is filed, the adverse party will be entitled to be heard by two counsel. In the Second Circuit this rule is the same, except sec. 1 thereof reads as follows: "(1) The counsel for the plaintiff in error or appellant shall file with the clerk of this court, at least twenty days before the case is called for argument, ten copies of a printed brief, one of which shall, on application, be furnished to each of the counsel engaged upon the opposite side." And sec. 3 reads as follows: " (3) The counsel for a defendant in error, or an appellee, shall file with the clerk, at least ten days before the case is called for hearing, ten copies of his printed brief, one of which shall, on application, be furnished to each of the counsel on the opposite side. His brief shall be of a like character with that required of the plaintiff in error, or appellant, except that no specification of errors shall be required, and no statement of the case, unless tha«t pre- sented by the plaintiff in error, or appellant, is -controverted." In the Third Circuit Rule 24 reads as follows: (1) In each case in which the printed record has been delivered by the clerk to the counsel for the plaintiff in error or appellant sixty or more days before the first day of the term, such counsel shall file twenty copies of his brief with the clerk not less than thirty days before the first day of such term; in each case in which the printed record has been de- livered by the clerk to such counsel between thirty and sixty days before the first day of the term, twenty copies of such brief shall be filed with the clerk not less than twenty days before the first day of such term: and in all other cases Rule XXIV] RULES— CIRCUIT COURT OF APPEALS 311 twenty copies of such brief shall be filed with the clerk not less than fifteen days after the receipt of such printed record. Within the same time such counsel shall give to counsel for the defendant in error or appellee not less than five copies of such brief. (2) This brief shall contain, in the order here stated (a) the names of the parties and the nature of the proceedings, (b) A short abstract of the bill or declaration or petition and of the plea or answer, (c) A statement of the question or questions involved, which shall be in the briefest and most general terms, without names, dates, amounts, or particulars of any kind whatever, (d) A concise abstract or statement of the case, (e) The assignments of error relied on, and, where any assignment of error is based on any bill of exceptions or any part of a bill of exceptions, a reference to the particular page of the record where the exception may be found. (/) Argu- ment on the part of the plaintiff in error or appellant, which shall exhibit a clear statement of the points of law or fact to be discussed, with a reference to the pages of the record and the authorities relied upon in support of each point. When a statute of a State is cited, so much thereof as may be deemed necessary to the decision of the case shall be printed at length. Clauses 3, 4 and 5 of the rule are substantially similar to Clauses 3, 5 and 6 of the rule in the First Circuit except that the briefs of defendant in error or appellee must be filed five days before the case is called and five copies thereof given to counsel for the plaintiff in error or appellant within that time. In the Fourth Circuit the rule is the same as in the First as above given, except that the copies of plaintiff's brief must be filed, at least fifteen days before any term or ad- journed term, and defendant's brief must be filed at least five days before the term or adjourned term, and either party may file 20 copies of a reply brief at least three days before the case is reached on the argument docket. In the Fifth Circuit the rule is as in the First, except as to the first and third sections, which are as follows: . (1) The counsel for the plaintiff in error, appellant or petitioner, shall file with the clerk of this court at least 312 RULES — CIRCUIT COURT OF APPEALS [Rule XXIV fifteen days in ordinary cases, and five days in preference cases, before the case is called for argument, twenty copies of a printed brief, one to be signed in handwriting by an attorney of this court, who has entered an appearance in the case; one copy of the brief shall, on application, be fur- nished to each of the counsel engaged upon the opposite side. (3) The counsel for defendant in error, appellee or re- spondent shall file with the clerk of this court, at least five days before the case is called for argument in ordinary cases and before the case is called for argument in preference cases, twenty copies of a printed brief. His brief shall be of a like character with that required of the plaintiff in error, appellant or petitioner, except that no specification of errors shall be required and no statement of the case, unless that presented by the plaintiff in error, appellant or peti- tioner is controverted. In the Sixth Circuit, the rule is numbered 20 and reads as follows : (1) The coimsel for appellant shall file with the clerk within twenty-five days after the filing of the printed copies of the record, twenty printed copies of a brief. (2) This brief shall contain, in order here stated: (i) A concise abstract, or statement of the case, presenting succinctly the questions involved, in the maimer in which they are raised. (w) A brief of the argument, exhibiting a clear statement of the points of law or fact to be discussed, with a reference to the pages of the record and the authorities relied upon in support of each point. When a statute of a State is cited, so much thereof as may be deemed necessary to the decision of the case shall be printed at length. (3) Within 30 days after service of appellant's brief the counsel for appellee shall file with the clerk twenty printed copies of his brief, which shall be of like character to that required of appellant, except that no statement of the case shall be required. (4) Subsequent briefs may be filed by either party; by the appellant, not less than twenty days, and by the appellee, not less than ten days, before the case is put on call for Rule XXIV] RULES— CIRCUIT COURT OF APPEALS 313 argument. Later briefs will not be received by the clerk or by the court, without permission of the court or one of the judges thereof. (5) Every brief of more than twenty pages shall contain, on its front fly leaves, a subject index with page references, the subject index to be supplemented by a list of all cases referred to, alphabetically arranged, together with references to the pages of the brief where the cases are cited. (6) At or before the time of filing any brief, two copies thereof shall be served upon each adverse counsel who has appeared in this court, and if there has been no appearance here for appellee, then upon his counsel in the court below; and the clerk shall require proof or acknowledgment of such service to be filed with the briefs. (7) When an appellant is in default under Clause 1 of this rule, the case may be dismissed on motion, or further time may be granted; when an appellee is in default under Clause 3 of this rule, the appellant may bring such default to the attention of the court by motion for a summary judgment of reversal, and thereupon the court will entertain such motion, or grant further time, as may seem proper; at the hearing, a party who has not filed a brief as required by this rule, will not be heard orally, unless the court shall so request. In the Seventh Circuit the rule is the same as in the First as above given, except that the briefs are required to be filed by the first section thereof within twenty days after the date of the delivery by the clerk of the printed record. And sec. 2 requires the contents of the brief to be entitled, un- der the respective titles, "Statement of the case;" "Errors relied upon;" and "Brief of the argument;" and sees. 3 and 4 read as follows: (3) The counsel for the defendant in error or the appellee shall file with the clerk twenty printed copies of his brief within twenty days after the filing of the brief of the plain- tiff in error or appellant. His brief shall conform to the requirements of this rule, except that no specification of errors shall be required, and no statement of the case, unless that pi:esented by the plaintiff in error or appellant is con- troverted. Either party, at or before the argument of the 314 RULES — CIRCUIT COURT OF APPEALS [Rule XXIV cause, may file a supplemental brief strictly confined to matter in reply to the brief of the opposite party. (4) When there is no assignment of errors, as required by sec. 997, Rev. Stats., coimsel will not be heard, except at the request of the court, and errors not specified according to this rule, and Rule 11, ante, will be disregarded; but the court at its option may notice a plain error involving the merits of the case, though not assigned or specified, and though the question be not saved according to the strict rules of practice, if it be apparent of record that the point was contested and not waived in the court below. In the Eighth Circuit the rule is the same as in the First, except that in the first section the words forty days are used instead of six days and sec. 2 requires the brief to be printed on unglazed paper and in substantial conformity as to size and type prescribed by Rule 26 for the printing of records, and sec. 3 reads as follows: - (3) The counsel for a defendant in error or an appellee shall file with the clerk twenty copies of his printed brief, on unglazed paper and in substantial conformity with the; size and type prescribed by Rule 26 for the printing of records at least ten days before the case is called for hearing. His brief shall be of a like character with that required of the plaintiff in error or appellant, except that no specification of errors shall be required, and no statement of the case, unless that presented by the plaintiff in error or appellant, is controverted. In the Ninth Circuit the rule is the same as thatj, in the First, except that the first section reads as follows: "(1) The counsel for the plaintiff in error or appellant shall file with the clerk of this court, twenty copies of a printed brief, and serve upon counsel for the defendant in error or the appellee one copy thereof, at least ten days before the case is called for argument." The third section reads as follows : "(3) The counsel for a defendant in error or an appellee shall file with the clerk twenty printed copies of his brief and serve upon counsel for plaintiff in error or appellant, one copy thereof, at least three days before the case is called Rule XXlV] RULES — CIRCUIT COURT OF APPEALS 315 for hearing. His brief shall be of a like character with that required of the plaintiff in error or appellant, except that no specification of error shall be required, and no statement of the case, unless that presented by the plaintiff in error or appellant is controverted." Note. Ninth Circuit — Briefs, signed by counsel who are not members of the bar of that court or fully qualified under the provisions of Rule 7, will not be considered by the court. See, also, subdivision 2 of Rule 26, page 323. Decisions The court will not consider alleged errors in the admission or refusal of evidence unless the testimony that is claimed to have been errone- ously admitted or excluded is set out substantially in the assignment of errors and in the brief. Haldane v. United States, 69 Fed. B. 819- 821, 16 C. C. A. 447. Rule 24 requires the plaintiff in error to refer in his brief to the pages of the record where the testimony admitted or rejected, and the rul- ings of the covirt upon it, may be fouod. Sipes v. Seymour, 76 Fed. R. 116-118, 22 C. C. A. 90. Rule 24 is a copy of Rule 21 of the Supreme Court. By its strict observance attention is directed to the vital questions at issue to the exclusion of immaterial questions. The court should enforce the rule requiring errors to be distinctly specified, which are intended to be urged, and errors not specified wiU be disregarded. City of Lincoln v. Sun Vapor S. L. Co., 59 Fed. R. 756-759, 8 C. C. A. 253. With each specification in the brief there ought to be a reference to the corresponding assignment of error as well as to the place in the bill of exceptions or other part of the record where the alleged error is shown. Vider v. O'Brien, 62 Fed. R. 326-327, 10 C. C. A. 385. Failure of counsel for the plaintiff in error to allude, either in his brief or oral argument, to any of his assignments of error, will be taken to be a waiver of such error. The court cannot be expected to examine the assignments of error and itself find the reasons for the reversal. American Fiber C. C. Co. v. Buckskin Fiber Co., 72 Fed. R. 508-511, 17 C. C. A. 662. Where it is stated in the brief of plaintiff in error that the cause is presented "on the specification of errors hereinafter set forth and discussed," and one of the specifications of error is not therein referred to, it will be deemed to be waived. Branch v. Texas Lumber Mfg. Co., 53 Fed. R. 849-850, 4 C. C. A. 52. 316 BULES — CIRCUIT COUiBT OP APPEALS [Rule XXIV Where specifications of error are quoted in the brief, but are not supported by argument or citation to enable the court to apprehend the questions intended to be presented, they must be regarded as waived. Pickham v. Wheeler-Bliss Mfg. Co., 77 Fed. B. 663-664, 23 C. C. A. 391. Where such omitted specifications are referred to in oral argument it cannot be held as a matter of right that they should be considered, where by reason of the failure to argue them in the brief, the other party was entitled to consider them as waived. lb. 664. Where an examination of 19 different specifications of error fails to present the point that two items were submitted to the jury without pleading, the appellate court will decline to search out the place in a voluminous record where the objection on this ground was made and an exception was taken to the decision overruling it, although a fatal error be claimed to have been committed in the trial court. Where counsel for plaintiff in error considers a point they urge too trivial to warrant them in finding and citing the specific place in the record where it was presented and preserved by exception, the court will not deem it of sufiicient importance to require it to search that place out. Northwestern, etc., Co. v. Great'Lakes E. Wks., 181 Fed. B. 38, 104 C. C. A. 52-58. The reference to the pages of the record required where rulings on the trial are challenged are to the pages where the ruhngs made and the exceptions taken are recorded, as well as those where the assignments of error are recorded. Snipes v. Seymour, 76 Fed. B. 118, 22 C. C. A. 90. Clause 5 of Rule 24 provides that a case may be dismissed on motion for failure to file an assignment of errors and is applicable to all cases of appeals in equity and in admiralty as well as in writs of error in cases at law. Dufour v. Lang, 54 Fed. B. 913, 917, 4 C. C. A. 663. In the Ninth Circuit held that a deposit in post-office at San Francisco of a copy of appellant's brief addressed to counsel in Seattle, Wash., with postage prepaid on October 1st, in a case set for argument October 11th is compliance with the rule as to service on appellee of the brief. Russo-Chinese Bank v. Natl. Bk. of Commerce, 187 Fed. B. 80, 109 CCA. 403. Where the brief is irrelevant and grossly scandalous, containing denunciation of the judge whose opinion was excepted to, wholly unprofessional, it will be stricken out on motion, and the name of counsel filing the brief may be stricken from the record and appellant allowed to file a new brief by some other counsel. Kelly v. Boettcher, 82 Fed. B. 794^796, 27 C. C. A. 177. Rule XXVJ EULES— CIRCUIT COURT OF APPEALS 317 Rule XXV — Oral Arguments In the First, Third and Fourth Circuits the rule is as follows: (1) The plaintiff in error or appellant in this court shall be entitled to open and conclude the piaMff to open and argument of the case. But when there <=°'"=''«*« argument. are cross-appeals they shall be argued together as one case, and the plaintiff in the court below shall be entitled to open and conclude the argument. (2) Only two counsel will be heard for oniy two counsel for each party on the argument of a case. «=■<='' p^^^y •'ea'^- (3) Two hours on each side will be allowed for the argu- ment, and no more, without special Two houra allotted to leave of the court, granted before the ^aohside. argument begins. The time thus allowed may be appor- tioned between the counsel on the same side at their dis- cretion: Provided, always, that a fair opening of the case shall be made by the party having the opening and closing arguments. In the Second Circuit the third section has been amended to read as follows: (3) Upon writs of error, appeals in admiralty, appeals from orders granting a preliminary injunction, and in appeals in customs cases, one hour on each side, and in other cases one hour and a half will be allowed. But in all cases where there are no difficult questions of law and the amount in- volved does not exceed $500, and in appeals and petitions for review in bankruptcy, only one-half hour on each side will be allowed. No more time than above specified will be allowed without special leave of the court granted before the argument begins. The time thus allowed may be ap- portioned between the counsel on the same side at their discretion: Provided, always, that a fair opening of the case shall be made by the party having the opening and closing arguments. In the Fifth Circuit the third section is as follows: (3) One hour will be allowed for the plaintiff in error or appellant to open and present his case, and one hour will be allowed to the defendant in error or appellee to answer; 318 RULES — CIRCUIT COURT OF APPEALS [Rule XXVl thirty minutes will then be allowed to the plaintiff in error or appellant to reply. No more time will be allowed for argument without special leave of the court. In the Sixth Circuit the rule is numbered 23 and reads as follows: (1) Cases will not be taken upon briefs, without oral argument, except by permission of the court on special application made before the case is reached. (2) The appellant shall be entitled to open and to con- clude. Cross-appeals or cross-writs of error shall be argued together as one case, and the plaintiff below shall be con- sidered as appellant under this rule. (3) Two counsel, and no more (unless by special per- mission), may be heard for each party; but where no brief is filed and no counsel is heard for one party, only one counsel will be heard for the adverse party. (4) One hour and one-half on each side will be allowed for argument, and no more, unless by leave of the court granted before the argument begins. The time thus allowed may be apportioned between the counsel on the same side at their discretion, provided that a fair opening of the case is made by the appellant. In the Seventh Circuit the rule is as in the First Circuit and a fourth section is added as follows : (4) Reading at length from briefs or reported cases shall not be indulged. In the Eighth Circuit the time allowed for argument is one hour and fifteen minutes on each side. In the Ninth Circuit the rule is as in the First Circuit, except that the third section commences with the words "one hour" instead of "two hours." Rule XXVI— i^orm of Printed Records, Arguments, and Briefs First Circuit — ^AU records, arguments, and briefs, printed for the use of the court, must be in such form and size that they can be conveniently bound together so as to make an ordinary octavo volume. Rule XXVI] RULES — CIRCUIT COURT OF APPEALS 319 Second Circuit — ^All arguments and briefs printed for the use of the court must be printed upon a page eleven inches long by seven inches wide and must have a margin of at least two inches in width. In the Third Circtdt, there is no rule corresponding with Rule 26 as adopted in the other circuits but Rule 26 is as follows: "All written opinions delivered by the Court shall be filed by the Clerk." Fourth Circuit — All transcripts of record, addenda thereto, arguments, and briefs, printed for the use of this court, shall be in small pica type, 24 pica "ems" to a line, with an index and a suitable cover containing the title of the court and the cause, the court from which the case is brought into this court, and the number of the case. Size of pages to be nine and a quarter by six and a quarter inches, except that in patent cases the size of the pages shall be ten and three- quartCTS by seven and five-eighths inches; that is to say, large enough to bind in copies of Patent OflBce drawings and specifications without folding. So much of the record as was printed in the court below may be used in this court if they conform to this rule. In the Fifth Circuit, the rule is as in the First Circuit, to which is added the following: "And as well as all quotations contained therein and the covers thereof must be printed in clear print never smaller than small pica and on unglazed paper. Sixth Circuit, the rule is numbered 21 and reads as fol- lows: (1) Records printed by the clerk shall be of a uni- form size, printed in small pica type, 24 pica ems to a line, 48 lines to a page, soUd, with index and suitable cover, con- taining the title of the court and cause, the court from which the case is brought to this court and the munber of the case; size of pages to be 93^ by 6J^ inches, except that in patent cases, the mze of the page will be lOM by T^/s inches — ^that is to say, large enough to bind in copies of Patent Office drawings and specifications without folding. The type shall be of a clear, strong face, substantially equivalent to that in which this rule is printed, and the paper shall be wholly unglazed. Each page shall carry, as a running 320 RULES— CIRCUIT COURT OF APPEALS [Rule XXVI head, in addition to the 48 lines, the name of the paper or of the witness testifying, as found on that page. Each pleading, order, exhibit or other paper shall be separated from the preceding matter by a two-inch space, and shall be headed by its title, in black-face capitals, and its filing date (e. g., "ANSWER— Filed February 15, 1913"). The full title of the court and cause below shall be given on the title page; elsewhere, both shall be omitted. (2) Printed arguments and briefs of attorneys shall con- form, as far as practicable, to the size and style of the printed record, but shall contain about 36 lines to the page, and be leaded with at least two-point leads. In the Seventh Circuit there is no rule corresponding with Rule 26, as adopted in the other circuits, but Rule 26 is as follows: Opinions of the Court — (1) All opinions delivered by the court shall, immediately upon the delivery thereof, be handed to the clerk to be recorded. (2) The original opinions of the court shall be filed with the clerk of this court for preservation. (3) Opinions printed under the supervision of the judge delivering the same need not be copied by the clerk into a book of records, but, at the end of each term, the clerk shall cause such printed opinions to be bound in a substantial manner into one or more volumes, and when so bound they shall be deemed to have been recorded within the meaning of this rule. Eighth Circuit — (1) All transcripts of record, arguments and briefs for the use of this court, except in patent causes as hereinafter provided, shall be printed on unglazed paper not less than 6}4 inches in width by 93^ inches in length, includ- ing a sufficient margin so that they can be conveniently trimmed and bound in volumes. The paper should equal a weight of 80 pounds per ream on basis of size of sheet 25 by 38 inches. (2) All records and briefs in patent causes may be printed on unglazed paper, of the weight as provided in section one of this rule, of such size that copies of letters patent may be in- serted therein without folding, but the size of such records Rule XXVI] KULES — CIRCUIT COURT OF APPEALS 321 and briefs in patent causes shall not be less than 73^ inches wide and 93^ inches long so that the records and briefs can be conveniently trimmed and bound in volumes. (3) All records, briefs, supplemental transcripts and re- turns to writs of certiorari shall be printed in clear eleven point or small pica type (never smaller than ten point), of 26 pica or 28 small pica ems to a line and 62 lines, including running head, solid, per printed page, containing substan- tially, 1400 small pica ems. Where testimony or depositions by question and answer are printed the answer shall follow on same line as the question whenever the same can be done. (4) All indexes to records and tabular exhibits, which from their nature require smaller type, may be printed in eight point or brevier ts^ie. (5) All covers for records shall be printed in a neat and workmanlike manner on substantial paper equal to a weight of 96 pounds per ream on the basis of a sheet 25 by 40 inches, and shall contain in conspicuous type the following matter, viz: First. TRANSCRIPT OF RECORD. Second. UNITED STATES CIRCUIT COURT OF APPEALS EIGHTH CIRCUIT. Third. The abbreviation for number "No." followed by a blank line ^ of an inch in length. Fourth. The title of the cause as it will be docketed in this court, viz: , Appellant (or Plaintiff in Error) as the case may be, vs , Appellee (or Defendant in Error). Fifth. The words "In Error to" (or "Appeal from") as the nature of the case may require, followed by the correct title of the trial court. (6) Unless otherwise expressly directed by counsel, the full titles of the court and cause once correctly shown in the printed transcript shall not be repeated when unchanged. There shall be placed at the head of each subsequent plead- ing, etc., a brief designation of its character. 21 322 RULES — CIB.CUIT COUKT OF APPEALS [Rule XXVI Unless otherwise expressly directed by counsel, the indorse- ments on pleadings, etc., shall not be printed in full; it shall be sufficient to print: "Filed in the Court on ," giving the correct date and name of the court. The date of all orders and decrees and the name of the Judge or judges making them shall always ap- pear. In printed transcripts the pleadings, orders, testimony of witnesses, etc., shall be separated by a face rule three inches long. The clerk shall indicate to the printer the appropriate places therefor. When inserts are folded several times to conform to the size of the printed record, stubs should be inserted at the binding side of the record to equalize the space occupied by the folds. Unmoimted photographs should be used when copies of such are required in printed records. As this rule is intended primarily for the guidance of the printer his attention should be directed thereto before the record or brief is printed. A sample copy of a printed record will be furnished by the clerk of this court on application therefor. Records and briefs not printed in substantial conformity with the provisions of this Rule will not be accepted or filed. Ninth Circuit — (1) All records printed for the use of the court must be printed on unruled white writing paper, nine and a quarter inches long and six and a quarter inches wide. The printed page, exclusive of any marginal note, reference, or running head, must be seven inches long and four inches wide, excepting in patent cases where counsel furnish to the clerk at the time of docketing the cause, patent office drawings and specifications for insertion. In such cases the margin of the record may be sufficiently enlarged to accommodate such drawings and specifications. The record must be properly indexed. Pica double-leaded is the only mode of composition allowed. (2) All arguments, briefs, and petitions for rehearing, printed for the use of the court, must be printed on unruled Rule XXVII] RULES — CiRCtJIT COURl' OF APPEALS 323 white writing paper, nine and a quarter inches long and six and a quarter inches wide. The printed page, exclusive of any marginal note, reference, or running head, must be seven inches long and four inches wide. Pica double-leaded is the only mode of composition allowed. Rule XXVII — Copies of Records and Briefs First, Second, Fifth, Eighth, and Ninth Circuits — The clerk shall carefully preserve in his office one copy of the printed record in every case submitted to the court for its considera- tion, and of all printed motions, briefs, and arguments filed therein. In the Fourth Circuit the rule reads: The clerk shall cause to be bound two copies of the printed record in every case, and of all printed motions, briefs, and arguments filed therein; one copy to be carefully preserved in his office, and one copy for the use of the court library, the cost of the same to be paid by the clerk out of the revenues of his office. In the Third, Sixth and Seventh Circuits there is no rule corresponding with Rule 27 as adopted in the other circuits, but Rule 27 in those circuits relates to rehearing, and in the Sixth Circuit to costs. RxTLE XXVIII — Opinions of the Court First, Second, Fifth, and Eighth Circuits — (1) All opinions delivered by the court shall, immediately Opinions to be recorded. upon the delivery thereof, be handed to the clerk to be recorded. (2) The original opinions of the court original opinions pre- shall be filed with the clerk of this court '^"'*''- for preservation. (3) Opinions printed under the supervision of the judge delivering the same need not be copied when opinions need not by the clerk into a book of records; '■^ ""p'"^- but at the end of each term the clerk shall cause such printed opinions to be bound in a substantial manner into one or 324 RULES — CIRCUIT COURT OF APPEALS [Rule XXVIIl more volumes, and when so bound they shall be deemed to have been recorded within the meaning of this rule. In the Third Circuit this rule is numbered 26 and is as follows: " (1) All written opinions delivered by the court shall be filed by the clerk." The second and third sections are omitted. Fourth Circuit — (1) All opinions delivered by the court shall be printed under the supervision of the judge de- livering the same, or of one of the circuit judges, the cost of such printing to be paid by the clerk out of the revenues of his office and charged to the litigants in the respective cases, to be taxed and allowed as other costs. (2) The original opinions of the court shall be filed with the clerk of this court for preservation. (3) The clerk of this court shall from time to time cause two sets of the printed opinions of this court to be bound in a substantial manner into volumes, one set to be kept in the clerk's office and one set, to be kept in the court library. Sixth Circuit — (1) All opinions delivered by the court shall, immediately upon the delivery thereof, be handed to the clerk to be recorded. (2) The clerk shall cause to be printed any manuscript opinion filed with him. An opinion printed lender the super- vision of the clerk or of a judge need not be copied into a book of records; but at the end of each term, the clerk shall cause such printed opinions to be bound in a substantial manner into one or more voliunes, and when so bound, they shall be deemed to have been recorded within the meaning of this rule. Seventh Circuit — This rule is nmnbered 26 and Rule 28 is identical with Rule 30, post. Ninth Circuit — The original opinions of the court shall be filed with the clerk of this court for preservation, and when so filed the same shall be deemed to have been re- corded within the meaning of this rule. Rule XXIX] RULES — CIRCUIT COURT OF APPEALS 325 Rule XXIX — Rehearing First Circuit — A petition for a rehearing after judgment may be filed at the term at which the Rehearing must be . asked at same term, and Judgment is entered, and witmn one within one month. calendar month after such entry, and not later unless by leave granted during the term. It must be in print in the form and style required by Rule 26, and it must briefly and distinctly state its grounds, and be sup- Petition must be printed . and have certincate of ported by a certincate of counsel. It counsel, will not be granted or permitted to be argued, unless a judge who concurred in the judgment desires it, and a majority of the court so determines: Provided, whenever a judgment is entered within less than a Petition, where judgment entered before expiration month before the term adjourns, the pe- of one month, tition may be filed within a month after the entry of judg- ment, and with the same effect after the term as though filed before the adjournment. Second Circuit — The petition for rehearing after judgment can be presented only at the term at which the judgment is entered unless by special leave granted during the term and must be printed and briefly and distinctly state its grounds and be supported by certificate of counsel; and will not be granted or permitted to be argued unless a judge who con- curred in the judgment desires it and a majority of the court so determines. In the Third Circuit the rule is numbered 27 and reads as follows: (1) A petition for rehearing a cause may be filed with the clerk at any time within thirty days after the entry therein of the final judgment or final decree of this court, and, if the term within which such judgment or decree shall have been entered shall expire during said period of thirty days, the judgment or decree, and the record on which the same shall have been entered, shall nevertheless remain subject to the control of this court until the full expiration of the time herein allowed for the fihng of the petition; provided, however, that no such petition shall be filed after this court, by any order made within said period of thirty days, shall have directed 326 RULES— CIRCUIT COURT OF APPEALS [Rule XXIX the immediate issue of a mandate or other process in the nature of a procedendo (see Rule 30). The petition shall be printed, shall briefly and distinctly state the reasons for a rehearing, and shall be supported by the certificate of counsel. In the Fourth Circuit the following sentence is added to the above: "But such petition shall not operate to stay the mandate or other process provided for in Rule 32, except by special order of the court." Fifth Circuit — ^A petition for a rehearing after judgment can be presented only during the term at which judgment is entered, and within twenty days after such entry, unless by special leave granted by the court, and must be printed and briefly and distinctly state its grounds without argu- ment, and be supported by certificate of counsel; and will not be granted or permitted to be argued unless a judge who concurred in the judgment desires it, and a majority of the court so determines. In the Sixth Circuit the rule is numbered 28 and reads as follows: A petition for rehearing after judgment can be presented only within thirty days (at the same or succeeding term) after the day when the printed opinion of the court is filed and can be obtained by counsel for the parties (which date the clerk shall note upon the docket), unless by special leave granted during such thirty days by the court or a judge thereof — and must be printed, and briefly and distinctly state its grounds, and be supported by certificate of Counsel; and will not be granted, or permitted to be argued, unless a judge who concurred in the judgment desires it, and a majority of the court so determines. In the Seventh Circuit the rule is numbered 27 and reads as follows: A petition for rehearing must be filed within thirty days after entry of j udgment or decree, or after filing of the opinion shall be in print, and be served forthwith by copy upon the opposing party, who within twenty days from such service may file a printed answer, and the petition shall be deter- mined without oral arguments, unless otherwise ordered. Rule XXIX] EULES — CIRCUIT COURT OF APPEALS 327 If a petition be not filed within tlie time allowed, and upon the overruling of a petition, the clerk shall, without special order, issue the mandate of the court to the court below. Twenty copies of such petition or answer shall be filed with the clerk of this court. In the Eighth Circuit the rule reads as follows: (1) The petition for rehearing may be presented and filed within sixty days after the date of the judgment or decree and jurisdiction to hear and decide the question presented thereby is reserved notwithstanding lapse of the term within the sixty days. (2) Such petition for rehearing must be printed and twenty copies thereof filed with the clerk and must briefly and distinctly state its grounds and be supported by a certificate of counsel and will not be granted or permitted to be argued unless a judge who concurred in the judgment desires it and a majority of the court so determines. Ninth Circuit — A petition for rehearing may be presented within thirty days after judgment. It must be printed, and briefly and distinctly state its grounds, and be supported by certificate of counsel that in his judgment it is well founded, and that it is not interposed for delay. Twenty printed copies must be filed with the clerk of this court. Decisions The requirement that a petition for a rehearing shall be presented only at the term at which the decree is entered is entirely for the pro- tection of the court, and can be waived by it when justice requires. Burget V. Robmson, 123 Fed. R. 262-264, 69 CCA. 260. Where a defeated party applies to an appellate court he must be presumed to have exhausted his remedies if his application is refused. Where an appUcation for a writ of certiorari to the Supreme Court presents the same issues determined by the Circuit Court of Appeals, and such application has been denied, the Circuit Court of Appeals will ordinarily refuse to proceed anew on the same subject-matter by the allowance of a rehearing. Ih. 266. A petition for rehearing not supported by certificate of counsel as provided by Rule 29 should be denied, but the court may consider the petition on its merits. Hinds v. Keith, 57 Fed. R. 10-15, 6 C. C A. 231. On a petition for rehearing, especially in an equity case, no new matter can be introduced, except in special cases, and then only after 328 KULES — CIRCUIT COTJKT OF APPEALS [Rule XXIX leave is granted by the court. The clerk is not authorized to file with the petition for rehearing affidavits without leave of the court first obtained. Gregory v. Pike, 67 Fed. R. 837-852, 15 CCA. 33. That a case is one of great importance is not sufiicient ground for granting a rehearing where it is not suggested that the court has over- looked any consideration or authority which should have had weight in the decision of the cause. Canfield v. United States, 67 Fed. R. 17-18, 14 C.C. 4. 228. A motion to the court to rescind its decree and affirm the decree of the District Court because of the insufficiency of the proof upon a particular point, is not a petition for rehearing and will not be con- sidered where it fails to comply with the requisites prescribed by Rule 29. The Dago, 63 Fed. R. 182-183, 11 C. C A. 117. On a petition for rehearing, counsel may not ask a rehearing on grounds which are in conflict with their original argument, or abandon grounds maintained in the first instance, and seek a rehearing upon new questions presented upon such petition for rehearing. It is too late to present a question for the first time on a petition for rehearing. Merriman v. Chicago & E. I. R. Co., 66 Fed. R. 663-664, 14 C. C A. 36. Only in extreme cases wiU a court permit points not brought to the attention of the ootirt on the original argument to be assigned in a petition for rehearing. United States v. Hall, 63 Fed. R. 472-475, H CCA. 294. Upon an application for a rehearing upon the ground of newly- discovered evidence, where no sufficient reason is shown why the facts were not ascertained and proven while the case was open for proof, Held, that the petition should be denied, although the petition sets out that the facts were not known to the party, and were known to the witnesses of the other party, but not disclosed when they gave their testimony. The Iron Chief, 63 Fed. R. 389-394. The Circuit Court of Appeals will not grant leave to apply to the Circuit Court for permission to file a supplemental bill in the nature of a bill of review to introduce newly-discovered evidence, unless the newly-discovered evidence offered, had it been in the original record, would probably have changed the conclusion to which the court came and its decree entered thereon. LaffCTty Mfg. Co. v. Acme Signal & Mfg. Co., 143 Fed. R. 321, 74 C C A. 621. On motion to dismiss the appeal and that the cause be remanded to the lower court with directions to said court to allow proposed Rule XXX] RULES— CIRCUIT COURT OF APPEALS 329 amendments of the bill therein, such motion being made upon the ground of excusable inadvertence and mistake on the part of appel- .lants and their principal attorney in failing to make certain amend- ments in the bill, and alleging that the facts embraced in the proposed amendments had only lately been discovered, Held, that the Court of Appeals was without power to direct that amendments be made in the trial court after the term at which the decree was rendered, citing Roemer v. Simon, 91 V. S. 149, where it is said: "It is clear that after an appeal in equity to this court, we cannot, upon motion, set aside the decree of the court below and grant a rehearing." Strand V. Griffith, 135 Fed. B. 739-741, 68 CCA. 377. Where facts have been found and stated to the Supreme Court as the basis for its instructions, after those instructions are received, the court will not re-examine upon the evidence already considered, con- troverted questions of fact. A. B. Dick Co. v. Henry, 118 C C. A. 293. After the mandate has gone to the trial court, application for a stay of proceedings to allow plaintiff in error to apply for certiorari should be made in the lower court. Oceanic Steam Navigation Co. v. Watkins, 188 Fed. B. 909, 110 C. C. A. 543. Where a bill of review is proposed for the purpose of vacating or modifying a decree in the lower court, the permission of the appellate court to file the same must first be obtained. As the decree proposed to be reviewed is in fact the decree of the appellate court, the suffi- ciency of the reasons for disturbing such decree ought to be determined by the appellate court rather than by the court whose hand has en- tered it. Keith v. Alger, 124 Fed. B. 32-33, 59 CCA. 552. A bill of review in the Federal courts must ordinarily be filed within the time limited by the statute for taking an appeal from the decre.e sought to be reviewed, where the review is not founded on matters discovered since the decree. Thomas v. Harvie's Heirs, 10 Wheat. 146-150, 6 L. ed. 287. Rule XXX — Interest First and Fourth Circuits — (1) In cases where a writ of error is prosecuted in this court, and interest from date of the judgment of the mferior court is i^dgn^e-i* b^iow; rate. affirmed, the interest shall be calculated and levied from the date of the judgment below, until the same is paid, at the same rate that similar judgments bear interest in the courts of the State where such judgment was rendered. 330 KULES— CIRCUIT COURT OF APPEALS [Rule XXX (2) In all cases where a writ of error shall delay the pro- Damages for delay, ceedings on the judgment of the inferior court, and shall appear to have been sued out merely for- delay, damages at a rate not exceeding ten per cent, in addition to interest, shall be awarded upon the amount of the judgment. (3) The same rule shall be applied to decrees for the Money decrees. payment of money in cases in equity, unless otherwise ordered by this court. (4) In cases in admiralty, damages and interest may be In admiralty. allowed, if Specially directed by the court. In the Third and Seventh Circuits — Rule 28 corresponds and is identical with the above rule, except in the Seventh Circuit a fifth clause is added which reads as follows: (5) In case where money is paid into court any party in suit may move for an order that the clerk deposit the sum under direction of the court. On depositing on such order the clerk shall account for such interest as he may have col- lected on the fund. But without such order he shall not be required to account for interest. In the Second, Fifth, Eighth, and Ninth Circuits the words "or territory" follow the word "state" in the last line of Clause 1. In the Sixth Circuit the rule is numbered 26 and reads: (1) Where a Judgment or decree of the District Court at law, in equity, bankruptcy or admiralty, requiring the pay- ment of money, is affirmed by this court, interest thereon from its date and until payment shall be calculated and levied at the same rate borne by similar judgments or decrees in the courts of the State where such District Court sits. (2) Where, in any such case, the review in this court has delayed proceedings to collect the award in the District Court, and shall appear to this court to have been had or prosecuted merely for delay, damages at a rate not exceeding ten per cent of the award, and in addition to interest, may be imposed by this court. Decisions The party who appeals from a decree in his favor in a collision cause is not entitled to interest on the original recovery pending the appeal, Rule XXXIJ RULES— CIRCUIT COURT OF APPEALS 331 since interest is given for delay in satisfying a decree, and the party who appeals puts it out of the power of the opposite party to pay the decree. The Express, 59 Fed. R. 476, 8 C. C. A. 182. It was intended by Rule 30, where decrees for the payment of money were on appeal affirmed, to give interest on the decrees so affirmed from the date of their entry in the lower court until paid, if by the law of the State interest might have been required in a State court in a similar case. Hagerman v. Moran, 35 Fed. R. 97. In the Federal court interest may be allowed from the rendition of the decree affirmed until payment, although the decree was silent concerning a payment of interest or its rate, and though a practice of the State courts requires that the decree in terms provide for the pay- ment of interest. 76. 100. Where the mandate simply affirms the decree of the lower court which is silent concerning the payment of interest, that court can go no further than its provisions direct. There is no rule of the Circuit (District) Court providing for interest, and it is only through the mandate of the Circuit Court of Appeals, directing its allowance in the court below, that interest may be obtained. 76. 101. In equity and admiralty the allowance of interest on damages, as also on costs, is not an absolute right; it depends on circumstances and is largely in the discretion of the court. The Scotland, 118 U. S. 507-519, 30 L. ed. 153. Rule XXXI— Costs First Circuit — (1) In all cases where any suit shall be dis- missed in this court, except where the Coats on dismissal. dismissal shall be for want of jurisdiction, costs shall be allowed to the defendant in error or appellee, unless other- wise agreed by the parties. (2) In all cases of afl&rmance of any judgment or decree in this court, costs shall be allowed to Costs on affirmance. the defendant in error or appellee, unless otherwise ordered by the court. (3) In cases of reversal of any judgment or decree in this court, costs shall be allowed to the plain- Costs on reversal. tiff in error or appellant, unless otherwise ordered by the court. (4) The cost of the transcript of the record from the court below shall be taxable in that abie.^ ° ""'""^ court as costs in the case. 332 RULES — CIRCUIT COURT OF APPEALS [Rule XXXI (5) Neither of the foregoing sections shall apply to cases United states exempt whcre the United States are a partyj from costs. ^^^^ ^^ g^^j^ p^ggg ^^ ^^g^g gj^g^jj j^g g^j_ lowed in this court for or against the United States. (6) When costs are allowed in this court, it shall be the Coats inserted in man- dutj of the clcrk to iusert the auiount •**'*• thereof in the body of the mandate, or other proper process, sent to the court below, and annex to the same the bill of items taxed in detail. (7) In all cases certified to the Supreme Court or removed On certiorari to Supreme thereto by Certiorari or otherwise, the Courts, fees of clerk to <. i i i c i • be paid. fees of the clerk of this court shall be paid before a transcript of the record shall be transmitted to the Supreme Court. In the Second, Third, Fourth and Fifth Circuits the rule is substantially the same, except that Clauses 3 and 4 are num- bered Clause 3, and Clauses 5, 6 and 7 become Clauses 4, 5 and 6 and in the Second Circuit, the third clause reads as follows: In cases of reversal of any judgment or decree in this court costs shall be allowed the plaintiff in error or appellant unless otherwise ordered by the court. The cost of the transcript of the record from the court below shall be taxable in this court as part of such costs and the clerk of the court below shall send to the clerk of this court with the transcript of the record a certificate of the cost of such transcript. In the Third Circuit the table of costs is printed as Clause 7 of Rule 29. In the Fourth Circuit, Clause 3 reads as follows: (3) In cases of reversal of any judgment or decree in this court costs shall be allowed to plaintiff in error or appellant unless otherwise ordered by the court. The costs of the transcript Of the record and proofs from the court below and the expense of printing the same when printed below shall be taxable in that court as costs in the case. The expense of printing however shall be taxed at actual costs (to be shown by the affidavit of the printer), but in no event to exceed twenty cents per folio of a hundred words. In the Sixth Circuit the rule is numbered 27 and reads as follows: (1) Where any case shall be dismissed out of Rule XXXI] RULES— CIRCUIT COURT OF APPEALS 333 this court for lack of jurisdiction herein, only such costs as are incidental to hearing and determining the question of jurisdiction will be awarded; in all other cases (except when provided by statute or general rule), upon the final disposition of a proceeding in this court, costs will be awarded to the party here prevaiUng, unless the court, by special direction, denies, otherwise awards or apportions the costs. (2) In cases to which the United States is a party, no costs in this court will be awarded. (3) In denying or apportioning costs under Clause 1, the court will enforce, as far as possible, the duty of each party to confine within the limits prescribed by Rules 10 and 15 the bill of exceptions, statement of evidence and transcript. (4) The cost of stenographers' transcripts of testimony used in settling a bill of exceptions or a statement of evidence, will not be taxed in this court, but shall be awarded and taxed by the court below after mandate, as this court may direct, or, lacking such direction, as to that court shall- seem proper. (5) When costs are allowed, it shall be the duty of the clerk to insert the amount thereof in the body of the mandate or other process sent to the court below, and annex to the same a bill of items taxed in detail. (6) The proper fees of the clerk therefor shall be paid before any transcript of the record in any case shall be transmitted to the Supreme Court. The same table of costs as promulgated by the Supreme Court February 28, 1898, is printed at length after the rule. Clause 7, under Rule 29 in the Third, and imder this rule in the Fourth and Sixth Circuits: In pursuance of the Act of Congress of Feb. 19, 1897 (29 Stats. 536, c. 263), as amended February 28, 1898, the following table of fees and costs in the Circuit Court of Appeals has been established, to take effect on the first day of March, a. d., 1898: Docketing a case and filing the record $5 . 00 Entering an appearance 25 Transferring a case to the printed calendar 1 . 00 Entering a continuance 25 oo4 RIJLES — CIRCUIT COURT OF APPEALS [Rule XXXI Filing a motion, order, or other paper $ .25 Entering any rule, or making or copying any rec- ord or other paper, for each 100 words 20 Entering a judgment or decree , 1 . 00 Every search of the records of the court and certi- fying the same 1 . 00 Affixing a certificate and a seal to any paper 1 .00 Receiving, keeping and paying money, in pursuance of any statute or order of the court, one per cent on the amount so received, kept and paid. Preparing the record for the printer, indexing same, supervising the printing, and distributing the copies for each printed page of the record and index 25 Making a manuscript copy of the record, when re- quired by the rules, for each 100 words (but nothing in addition for supervising the printing) 20 Issuing a writ of error and accompanying papers, or a mandate or other process 5.00 Filing briefs, for each party appearing 5.00 Copy of an opinion of the court, certified under seal, for each printed page (but not to exceed $5.00 in the whole for any copy) 1 .00 Attorney's docket fee 20.00 In the Seventh Circuit the corresponding rule is num- bered 29. In the Eighth Circuit, Clause 1 omits the words "except for want of jurisdiction," otherwise the rule is as' in the First Circuit, except that Clauses 3 and 4 is Clause 3 which reads as follows: (3) In cases of reversal of any judgment or decree in this court costs shall be allowed to plaintiff in error or appellant unless otherwise ordered by the court. Where the record has been printed in this court under the provisions of sees. 1 and 2 of Rule 23, the cost of printing thirty copies of the transcript of record from the court below shall be taxed as costs in the case unless otherwise ordered by this court, but no allowance shall be made for the amount paid to the clerk of the court below for the written or typewritten tran- Rule XXXI] RULES— CIECUIT COURT OF APPEALS 335 script of the record. Where the record has been printed in the court below and a copy of such printed record certified to this court the cost of printing twenty-five copies of such record or portion thereof shall be taxable as costs in the case in the court below unless otherwise ordered by this court. Clause 3, in the Ninth Circuit, is as in the First Circuit with the following, "including costs of the transcript from the court below, unless otherwise ordered by the court." Clauses 5, 6, and 7, in the First Circuit, are numbered 4, 5, and 6 in the Ninth. Clause 7, in the Ninth Circuit, is as follows: (7)' Upon the clerk's producing satisfactory evidence, by affidavit or the acknowledgment of the parties or their sureties, of having served a copy of any bill of fees due by them, respectively, in this court, on such parties or their sureties, an attachment shall issue against such parties or sureties, respectively, to compel payment of said fees. Decisions Where the order of the court was that the judgment of the court below be aflSrmed with costs, it was held proper to tax an attorney's fee of $20.00, which was allowed by the court below against the plaintiff in error. Kansas City, Ft. S. & M. R. Co. v. MaoDonald, 60 Fed. fl. 522-523, 9 CCA. 129. Where the appellant fails to succeed in reversing the decree, but only in modifying it in a minor particular, neither party will recover costs in the appellate court. Packard v. Lacing Studd Co., 70 Fed. B. 66-68, 16 CCA. 639. The Circuit Court of Appeals where it reverses the decree for want of jurisdiction in the Circuit (District) Court, may award the appellant costs in the Circuit (District) Court and divide the costs of the appeal. Tug River C. & 8. Co. v. Brigel, 70 Fed. B. 647-648, 17 CCA. 367. A decree for costs against respondents, complainants in the court below, will not be modified so as to allow the decree for costs to be set off against the debt due by the appellant to the appellee. lb. 648. Where the judgment of the Circuit (District) Court is reversed and the cause remanded with instructions to dismiss for want of jurisdiction, all of the costs, both on appeal and in the Circuit (District) Court, should be paid by the plaintiff in the court below. Sneed v. Sellars, 68 Fed. B. 729-730, 15 C C A. 631. V- 336 RULES— CIRCUIT COURT OF APPEALS [Rule XXXI Where objection for want of jurisdiction was not urged in the court below, but presented upon bill of exceptions, as the writ of error in such case is superfluous because the objection might have been taken in limine, costs will be awarded against the party taking the writ of error or appeal. Hunt v. Howes, 74 Fed. R. 657-659, 21 CCA. 356. Where the appeal has substantially prevailed, the appellant is en- titled to the statutory costs incurred in the successful attempt to assert his right. Northern Trust Co. v. Snider, 77 Fed. R. 813-321. Where a decree in favor of claimant upon a libel is reversed on ap- peal on the ground that both vessels were in fault, appellant is en- titled to costs incurred in securing a proper modification of the decree. The Umbria, 69 Fed. R. 475, ?,CCA. 181. Where there is much irrelevant matter introduced into the case by the complainant, and carried into the record on appeal, the respond- ent, though unsuccessful, will not be required to pay the costs in the Circuit (District) Court, which were caused by this class of evidence. Ecaubert v. Appleton, 67 Fed. R. 917-925, 15 CCA. 73. The costs in one court cannot be set off against the costs and dam- ages in another court, so as to prevent the officers of the courts from collecting the sums due them as fees. Aiken v. Smith, 67 Fed. R. 423- 424, 6 C. C. A. 414. A contention that the fees allowed officers are unattachable against the party requiring their services, and if they fail to require prepay- ment or security in advance they cannot look to the party cast, nor claim any benefit under the judgment or decree rendered in the case, not sustained. 76. 425. If a decree rendered in the appellate court is not such as the party conceives he is entitled to, seasonable appUcation must be made for its modification. The court has no power to modify a decree after the term at which it was entered has expired, even upon the question of costs. Jourolman v. East Tennessee Land Co., 85 Fed. R. 251, 29 CCA. 140. Where the decree of the Court of Appeals is in terms with costs without more, and this is the form of the mandate, the question of the costs in the court below is subject to the power of that court. Ih. 251. The appellate court may entertain a petition for leave to file a bill of review in the court below, even after a decree and mandate, and after the term at which the decree was entered. In case the petition is granted, the usual order is that petitioner have permission to apply Rule XXXII] RULES— CIRCUIT COURT OF APPEALS 337 to the court below to file further pleadings. In re Gamewell Pire- Alarm Tel. Co., 73 Fed. B. 908-911-913, 20 C. C. A. 111. In the Second Circuit under the Act of Feb. 13, 1911, to reduce the expenses of appeals and authorizing the use on appeal of the printed transcripts certified by the court below, Held, the certification of the clerk of the court below is sufficient to establish the correctness of the transcript and there is no necessity for further examination by the clerk of the Circuit Court of Appeals. Held further that the record should be indexed by the clerk of the appellate court for which his fee is 25 cents for each page of such index but as the clerk's fees were held indivisible in Bean v. Patterson, 110 U. S. 401, 28 L. ed. 190, the clerk should take his full fees allowed by the fee biU prescribed February 28, 1898, by the Supreme Court, namely, 25 cents per page for each printed page of the record, and hold the same as a special deposit until distributed by proper authority. Colts, etc., Co. V. N. Y. Sporting Goods Co., 186 Fed. B. 625, 108 C. C. A. 489. The District Court has power to issue an execution for the costs in the Circuit Court of Appeals which may be annexed to the mandate sent down from that court and taxed in the appellate court in conformity with Rule 31 (Rule 29 in the Seventh Circuit). Corn Products Co. v. Chicago, etc., Co., 185 Fed. B. 63, 107 C. C. A. 283. The enforcement of the costs taxed in the appellate court should be enforced in the trial court pursuant to sec. 701, Bev. Stats. {U. S. Comp. Stats. 1901, p. 571). Note. This case decided January 3, 1911, refers to sec. 701, Bev. Stats., U. S. Comp. Stats. 1901, p. 571, as if in full force. lb. Rule XXXII— Mandate First Circuit — In every case finally determined, a mandate or other proper process, in the nature of JJu°'|**®„nf|^*° |fitio°n a procedendo, shall be issued to the for rehearing eied. court below, for the purpose of informing that court of the proceedings in this court, so that further proceedings may be had in the court below, as to law and justice may ap- pertain. Such mandate or other process may issue at any time on the order of the court; but, unless otherwise ordered, it shall issue as of course after two calendar months from the entry of the judgment, unless a petition for a rehearing has been filed and remains tmdisposed of. Second and Eighth Circuits — In all cases finally determined in this court, a mandate, or other proper process in the 22 338 RULES— CIRCUIT COURT OF APPEALS [Rule XXXII nature of a procedendo, shall be issued, on the order of this court, to the court below, for the purpose of informing such court of the proceedings in this court, so that further proceedings may be had in such court as to law and justice may appertain.^ Third Circuit— The corresponding rule is numbered 30 and reads as in the Fourth Circuit except that the time for issu- ance as of course is thirty days from entry of the decree, or judgment. Fourth Circuit — To the above rule in this circuit are added these words: "Such mandate or other process may issue at any time on the order of the court; but, unless other- wise ordered, it shall issue as of course after the expiration of twenty days from the date of the judgment or decree. Fifth Circuit — Mandates shall issue at any time after twenty-one days from the date of the decision unless an apphcation for a rehearing has been granted or is pending. A copy of the opinion of this court shall accompany the mandate when a new trial or further proceedings are to be had in the lower court and the charge for such copy shall be taxed in the costs of the case. Provided, that in all cases entitled to precedence in this court under sec. 7 of the Act approved Mar. 3, 1891, the mandate or other proper process may be issued by the clerk after the expiration of seven days from the date of the decision, unless otherwise ordered by the court or one of the judges thereof. Sixth Circuit, the rule is numbered 29 and reads as follows: In all cases finally determined in this court a mandate or other proper process in the nature of a pro- cedendo shall be issued, on the order of this court, to the court below, for the purpose of informing such court of the proceedings in this court, so that further proceedings may be had in such court as to law and justice may appertain. Such mandate shall not issue until time has elapsed for filing a petition to rehear as defined by Rule 28; and no mandate or other process of procedendo shall issue when a petition to rehear is pending, unless specially ordered. 1 See Rule 36, Second Circuit, page 347. Rule XXXlI] RULES— CIRCUIT COURT OF APPEALS 339 Every mandate shall be accompanied by a copy of the opinion filed in the cause in which it is issued, and the charge for the same shall be taxed in the costs of the case. In cases not requiring special form of process, the mandate (unless otherwise directed by the court or a judge thereof) shall be issued by the clerk upon the expiration of the time for filing rehearing petition, or upon the denial of such petition, and as well in vacation as in term time. Seventh Circuit— Rule 30, corresponding with Rule 32 of the other circuits, is the same as Rule 32 of the Eighth Circuit as given below. Eighth Circuit — In all cases finally determined in this court, a mandate or other proper process in the nature of a procedendo shall be issued on the order of this court, to the court below, for the purpose of informing such court of the proceedings in this court, so that further proceedings may be had in such court as to law and justice may appertain.^ Ninth Circuit — In all cases finally determined in this court, a mandate or other proper process in the nature of a procedendo shall upon the payment of any costs due in the case, be issued, as of course, from this court to the court below, for the purpose of informing such court of the pro- ceedings in this court, so that further proceedings may be had in such court as to law and justice may appertain. Such mandate, if not stayed by the order of the court, shall be issued on the expiration of thirty days, from the date of such final determination, unless within said time a petition for rehearing be filed, in which case the mandate shall be stayed until five days after the determination of such petition. Decisions Where the Supreme Court has expressly stayed a mandate of the Circuit Court of Appeals, the suit remains in the latter court, and that court may grant a rehearing even after the term. Burget v. Robinson, 123 Fed. R. 262-265, 59 CCA. 260. It is well-settled practice in the Federal courts of appeal in reviewing equity causes to dispose of them finally on the record before the appellate ^By an order entered March 30, 1911, the clerk is directed to issue a mandate or other proper process, to the court below, in all cases, sixty days after the final dis- position thereof, excepting in cases where it shall be otherwise expressly ordered. 340 KULES— CIRCUIT COURT OF APPEALS [Rule XXXIII court and not remand them for further trial in the District Court- Harrison V. Clarke, 182 Fed. B. 765, 105 C. C. A. 197-199. No rule is better settled than that an appeal from a decree entered by the court below in accordance with the mandate of the appellate court, cannot be maintained. If the Circuit Court of Appeals committed error, or if for any reason its judgment can be held void the appropriate remedy lies in a certiorari from the Supreme Court. Aspen, etc., Co. v. Billings, 150 V. S. 37, 37 L. ed. 988. Where the verdict and judgment was excessive but the judgment was capable of correction by computation merely there need be no new trial if the judgment is reduced to the proper amount by a remittitur filed by defendant in error. Van Boskerck v. Torbert, 184 Fed. R. 419, 107 C. C. A. 383. Where the only error found was in allowing damages, where the element of damages as to which the error in the trial court occurred was only an incidental one, easily distinguishable on the record, and no complaint that upon the main issue the trial was otherwise than lawful, Held, the judgment would be reversed, the verdict set aside and the case remanded for a new trial on the issue of damages alone. Farrar v. Wheeler, 145 Fed. R. 482, 75 CCA. 386-390. At common law when a judgment is reversed upon an error relating to damages the entire verdict must be set aside and a venire de novo ordered. Held, this rule has been changed by sec. 701, Rev. Stats. lb., p. 390. Note. Sec. 701, Rev. Stats., U. S. Comp. Stats. 1901, p. 571, is not one of the sections repealed by the Judicial Code, but as it gave jurisdiction to the Supreme Court of causes now assigned to the Circuit Court of Appeals quaere whether it is still in force. See Act March 3, 1881, c. 517, sees. 10 and 11, 26 Stat. 829 ([/. S. Comp. Stat. 1901, p. 552). Rule XXXIII — Custody of Prisoners on Habeas Corpus First, Second, Fourth, Fifth, Sixth, Eighth, and Ninth Circuits — (1) Pending an appeal from the final decision of Custody of priaoner. any couit OP judgc declining to grant the writ of habeas corpus, the custody of the prisoner shall not be disturbed. (2) Pending an appeal from the final decision of any SiStTed 'tT^bifi? o°n '^^^'^ °^ J^'ise discharging the writ after discharge of writ. ' it has been issued, the prisoner shall be remanded to the custody from which he was taken by the Rule XXXIV] RULES— CIRCUIT COURT OF APPEALS 341 writ, or shall, for good cause shown, be detained in custody of the court or judge, or be enlarged upon recognizance, as hereinafter provided. (3) Pending an appeal from the final decision of any court or judge discharging the prisoner, Djaoharged prisoner ad- he shall be enlarged upon recognizance, ^peai. ^' ^^ "^ with surety, for appearance to answer the judgment of the appellate court, except where, for special reasons, sureties ought not to be required. In the Third and Seventh Circuit, Rule 31 is identical with Rule 33 as here printed. In the Sixth Circuit the rule is numbered 32. In the Seventh Circuit, Rule 33 is as follows: (1) The library of the court shall be under the general supervision and custody of the clerk of LawUbraiy. the court. - (2) No book shall be removed from the Ubrary except by or upon the written order of a Federal judge or the Uni- ted States district attorney for his own use in Chicago, except that diu-ing the sessions of the court any lawyer who has a case upon the docket, upon written application to the clerk and upon the clerk's written order, may take from the library not exceeding three volumes at a time, being responsible for the return thereof within twenty-four hours, and in default of return shall pay to the clerk for the library fund twice the value thereof, but if returned in good condition one dollar for each day's detention be- yond the limited time. Rule XXXIV — Models, Diagrams, and Exhibits of Material First, Fourth, Fifth, Sixth, Eighth, and Ninth Circuits — (1) Models, diagrams, and exhibits of ma- Models, etc., in custody terial forming part of the eviden-ce taken °* *''" '"='''''^'- in the court below, in any case pending in this court, on writ of error or appeal, shall be placed in the custody of the mar- shal of this court at least ten days before the case is heard or submitted. (2) All models, diagrams, and exhibits of material placed 342 RULES— CIRCUIT COrRT OF APPEALS [Rule XXXV in the custody of the marshal for the inspection of the Must be removed in one COUlt OH the hearing of & CaSe, HlUSt be month after cause de- , , ,i ,• •j_t • cided. taken away by the panties within one month after the case is decided. When this is not done, it shall be the duty of the marshal to notify the counsel in the case, by mail or otherwise, of the requirements of this rule; and, if the articles are not removed within a reasonable time after the notice is given, he shall destroy them, or make such other disposition of them as to him may seem best. Second Circuit, Clause 1 is as m the First Circuit and Clauses 2 and 3 as follows: (2) Three copies must be furnished for the use of the court of any maps, charts, plans, diagrams or other papers or documents which it is intended to refer to on the argument, and which are not contained in the transcript of the record as certified from the court below. (3) All exhibits of material in customs cases must be filed with the clerk at the time of filing the transcript of record, and such exhibits will be returned to the clerk of the District Court at the expiration of 60 days from the decision of the case by this court. All other models, diagrams, a!nd exhibits of material placed in the custody of the clerk for the inspec- tion of the court on the hearing of a case must be taken away by the parties within one month after the case is decided. It shall be the duty of the clerk to notify the couasel in the case, by mail or otherwise, of the requirements of this rule, and if the articles are not removed within the time above specified, he shall destroy them, or make such other disposi- tion of them as to him may seem best. In the Third and Seventh Circuits the corresponding rule is numbered 32, and is substantially identical with the rule in the First Circuit. In the Sixth Circuit the rule is numbered 30. Rule XXXV — Error in Criminal Cases First Circuit — On or after the allowance of a writ of error Judge or Justice may in a criminal casc cognizablc by this ^ ™"*° " ■ court, the justice or judge who allowed the writ, or the court which entered the judgment or any Rule XXXVJ RULES — CIBCXJIT COURT OF APPEALS 343 judge thereof, shall have the power to admit to bail the plaintiff in error, according to the rules of law applicable to his case. Second Circuit — (1) An appeal or writ of error from a Circuit Court or a District Court to this court in the cases provided for in sees. 6 and 7 of the act entitled "An Act to establish Circuit Courts of Appeals and to define and regulate in certain cases the jurisdiction of the courts of the United States and for other purposes," approved Mar. 3, 1891, and acts to amend said act approved Feb. 18, 1895, and Jan. 20, 1897, may be allowed in term time or vacation by the circuit justice or by any circuit judge within the circuit or by any district judge within his district, and the proper security be taken and the citation be signed by him, and he may also grant a supersedeas and stay of execution or of proceedings, pending such writ of error or appeal. (2) Where such writ of error to this court is allowed in the case of a conviction of an infamous crime or in any other criminal case in which it will lie, the District Court, or the judge thereof, or any circuit judge of the circuit or the circuit justice shall have power, after the citation is served, to admit the accused to bail in such amount as may be fixed. In the Third Circuit there is no rule after Rule 32. Fourth Circuit — There is no corresponding rule. Rule 35 reads: Saturdays Conference-day. The clerk in making his docket shall not set down for argument any cause for any Saturday of the term for which such docket is intended, and this court will meet on said days for consultation only. Fifth Circuit i— Rule 35 reads: Order in Relation to Assign- ment of Cases for Hearing. Unless otherwise ordered by the senior circuit judge, thirty days prior to the opening of a regular session of this court, the clerk is directed to assign cases for hearing as follows : At Atlanta, Georgia, four cases per day for the first three days of each week. At Montgomery, Alabama, four cases per day for the first three days of each week. 1 See Rule 37, Fifth Circuit, page 350. 344 RULES — CIECUIT COURT OF APPEALS [-Rule XXXV At Fort Worth, Texas, four cases per day for the first three days of each week. At New Orleans, Louisiana, two cases per day for the first three days of each week. The above assignments shall be made in accordance with existing law regulating the return of appeals, writs of error, and other appellate proceedings in the Fifth Judicial Cir- cuit: Provided, that cases entitled by law to preference in hearing and bankruptcy cases shall be first assigned, and cases, whether preference or not, may, upon stipulation of the parties filed with the clerk and approved by the court, be assigned for hearing at any other place or session of this court designated in such stipulation. Except as hereinabove provided, the assignment of cases at New Orleans, Louisiana, shall be grouped by States, so as to permit the hearing of cases from one State before the cases from the next State in order shall be called. The Sixth and Seventh Circuits have no Rule after Rule 34. Eighth Circuit — Writs of Error in Criminal Cases. (1) Writa of error in orimi- Writs of error to rcview Criminal cases nal causes allowed in , . /-^ vacation, by whom. tried in any District Court of the United States within this circuit, which may be reviewed under the provisions of the Judicial Code approved Act of Mar. 3, 1911, may be allowed in term time or in vacation by the circuit justice assigned to this circuit, or by either of the circuit judges within the circuit, or by any district judge within his district, and the proper security be taken, and the citation signed by him, and he may also grant a supersedeas Supersedeas, by whom and Stay of exccution or proceedings, and when granted. pending the determination of such writ of error. (2) Where such writ of error is allowed in the criminal Who may admit to bail, cascs aforesaid, the District Court before ^ ™' which the accused was tried, or the dis- trict judge of the district wherein he was tried, within the district, or the circuit justice assigned to the circuit, or either of the circuit judges within the circuit shall have the power, after the citation has been duly served, to admit the accused to bail in such amount as may be fixed, such Rule XXXVI] RULES — CIRCUIT COURT OF APPEALS 345 bail bond to be, as near as may be, in the form prescribed in the appendix to these rules. The Fifth Circuit gives the above rule as Rule 37. See infra, page 350. Ninth Circuit — Rule 35 is entitled: Assignment of Causes for Hearing, and reads as follows: (1) Thirty days prior to the opening of any calendar session of the court, the clerk is directed to assign causes for hearing at the rate of one case for the first day of each term or session, and two cases per day for each of the ensuing days of such term or session. Causes shall be grouped by States, and assignments made, so as to permit the hearing of causes from one State before the causes from the next State in order shall be called; causes from the northern district of California shall be assigned for hearing last. Any causes entitled by law to preference in hearing shall be first assigned and take prece- dence over other causes from the same State. (2) A stipulation to continue a case to the foot of the calendar or in any way change the day assigned for hearing, will not be recognized as binding upon the court, and no such change will be made except by order of the court for reasons shown. (3) Ten days before each calendar session of the court the clerk shall prepare and cause to be printed a calendar of the causes assigned for the approaching session. Rule XXXVI — Petitions in Bankruptcy Cases First Circuit — (1) On the filing of a petition for the exercise of the power of superintendence in bankruptcy causes. and revision vested in this court by ?„ ui1ue'°notice.-^e?^- the act to establish a uniform system -« t° b« V marshal. of bankruptcy throughout the United States, approved July 1, 1898, or any acts in addition thereto or amenda- tory thereof, the clerk shall issue, as of course, an order to show cause, returnable two weeks from the date thereof, which shall be served by copy on each of the adverse parties named in the petition as a person against whom relief is desired, or his solicitor in the proceeding in the District 346 RULES— CIRCUIT COURT OF APPEALS [Rule XXXVI Court, at least one week before the return-day of the order, which service shall be made by the marshal or his deputy in the district where the party or solicitor served resides. (2) Within one calendar month after the return-day of When pleadings filed.- the Order to show cause, either party wuh"n™,?^t?t tTpK may demur, plead, or answer; but the p[ea-7r''dlmur'#ef to b1 determinatioa of any demurrer, plea, or £ad by answer. auswer shall be final, and no order to plead over will be allowed; and any party may secure in his answer all the advantages of a demurrer or plea, or both, by inserting therein the proper allegations therefor. No demurrer shall be general, and no cause of demurrer shall be allowed unless specifically set forth therein. (3) There shall be no pleadings in reply by the petitioner; New matter available but any uew matter properly in reply a repfir! ' '""^"^ ^' °" shall be available without the same being pleaded in the petition, or otherwise. (4) A motion to dismiss may be filed within the time Motion to dismiss.- allowed for a demurrer, plea, or answer; -uolu^n^tltv'^^ted or the subject-matter thereof, if it re- btf. buTo^^rargtmen'^ lates to the substance of the proceeding may be allowed. ^j. ^^ ^j^g jurisdiction of the court, may be availed of on demurrer, plea, or answer, by proper allega- tion; and whenever a motion to dismiss is seasonably filed, the time for filing demurrer, plea, or answer, will run from the day on which an order may be entered overruling the motion. Every motion to dismiss shall be filed in print, accompanied with a printed brief; and each of the opposing parties shall forthwith be served by the clerk, through the mail or otherwise, with a copy of the motion and of the brief, and he may file, in print, a brief in reply within two weeks. At the expiration of the time allowed for filing the brief in reply, the motion and briefs will be distributed by the clerk to the circuit judges, and to the district judge, senior in commission, who is not disqualified. Thereupon, the mo- tion will be disposed of by the court on the briefs, unless, at its own suggestion, or for good cause shown, the court shall order oral arguments. Rule XXXVI] RULES— CIRCUIT COURT OF APPEALS 347 (5) So much of Rule 14 as relates to viva voce proofs in the District Courts, or to further proofs Rules aa to mm me in instance causes, in admiralty, shall LTpp^.'""'"'"'^"''"^"' apply to appeals and petitions authorized by the act afore- said, or by acts additional thereto or amendatory thereof: Provided, that any record on any such appeal or petition may be supplemented by any matter agreed to in writing by the parties and filed with the clerk. (6) The rules with reference to records, printing, and briefs, and all other rules, except as r„,,s ,, ^ pri^^^g ^^e herein modified, shall apply to the ''^""^ ""^ ^''°« ''™'°- proceedings to which this order relates. (7) Nothing herein shall prevent the court, from time to time, from making for special cause, orders diminishing or enlarging the times named herein, or any other orders suitable to expedite the proceedings or to prevent injustice. Second Circuit, Rule 36 is entitled: Security for Clerks' Fees — Taxing Costs, and reads as follows: (1) In all cases the plaintiff in error or appellant on docket- ing a case and filing a record, shall enter into an undertaking with the clerk, for the payment of his fees, or otherwise satisfy him in that behalf. (2) At the expiration of ten days after a case has been decided, the order or decree thereon will be entered by the court, and the clerk will thereupon prepare and tax the bill of costs and issue the mandate. Within said ten days the parties may file with the clerk their proposed orders or decrees and bills of costs, with proof of service of the same upon the opposing attorneys.^ In the Third Circuit, there is no Rule 36. Fourth Circuit — Bankruptcy. Upon the filing of the pe- tition for review as provided for in sec. 24 (b) of the act to establish a uniform system of bankruptcy throughout the United States, approved July 1, 1898, the clerk of this court shall docket the cause, and shall forthwith serve a certified copy of the petition upon the respondent or re- spondents, or his or their solicitor, through the mail or other- ^ For the Rule of Practice upon petitions to review orders in Banlcruptcy in the Second Circuit see Rule 38, infra, page 352. 34S EtJiiEs — ClUCtfiT COURT 6f appeals [Rule XXXVI wise, together with a notice to the respondent or respondents, to answer, demur, or move to dismiss the said petition, within fifteen days from the date of such notice. (2) The petitioner shall cause a certified transcript of the record and proceedings of the bankruptcy court of the matter to be reviewed to be filed in the clerk's office of this court within forty days from the date of the filing of the said petition for review. (3) By consent of all parties to the cause, by stipulation in writing filed with the clerk of the court the petitioner may cause a transcript of the record and proceedings of the bank- ruptcy court of the matter to be reviewed to be filed in the clerk's oflSce of this court in lieu of a certified printed tran- script as above mentioned, and thereupon the clerk of this court shall cause the record to be printed as provided in the 23d rule of this court, and furnish counsel on both sides with three copies each. (4) And such causes shall stand for hearing in their regular order. But either side may, upon ten days' notice given to the opposing counsel, have the cause heard, either at term time, or in vacation, or in chambers, upon the briefs, unless at its own suggestion, or for good cause shown, the court shall order oral argument. (5) That all causes coming up by appeal as provided in sec. 25 of said Bankruptcy Act shall stand for hearing in this court, either in term time or in vacation, and may be called up by either party upon ten days' notice, as pro- vided in sec. 4 of this rule. (6) All rules of this court (except as herein modified) shall apply to the proceedings in bankruptcy to which this rule relates. (7) Nothing herein shall prevent the court, from time to time, from making, for special cause, orders diminishing or enlarging the times named herein, or any other order suitable to expedite the proceeding or to prevent injustice. Fifth Circuit— Rvde 36 is entitled: Assignment of Judges and reads as follows : It is ordered that whenever a full bench of three judges shall not be made up by the attendance of the associate justice of Rule XXXVI] RULES — CIRCUIT COURT OF APPEALS 349 the Supreme Court assigned to the circuit, and of the circuit judges, so many of the district judges, in the order of the seniority of their respective commissions and qualified to sit, as may be necessary to make up a full court of three judges, are hereby designated and assigned to sit in this court: Provided, however, that the court may at any time, by par- ticular assignment, designate any district judge to sit as aforesaid. The Sixth and Seventh Circuits have no Rule 36. Eighth Circuit — Petition to Revise (under sec. 24b of the Bankruptcy Law) : A petition to revise under the provisions of sec. 24b, in the Bankruptcy Law approved July 1, 1898, shall be filed and docketed as an original action in this court and be entitled petitioner v. respondent and shall specifically designate the respondent and respondents upon whom the petitioner desires notice to be served and a sufficient number of copies of such petition shall be furnished the clerk at the time of fifing so that a copy may be served upon each of the respondents.-' Ninth Circuit — Rule 36 is entitled: Terms and Sessions of the Court and reads as follows: (1) One term of this court shall be held annually on the first Monday of October, and adjourned sessions on the first Monday of each month in the year. All sessions shall be held at San Francisco, vmless otherwise especially ordered by the court. (2) The October, February, and May sessions shall be known as calendar sessions, and shall be sessions for the trial of all causes that shall have been placed upon the calendar in pm-suance of Rule 35. (3) A term of this court shall be held annually in the city of Seattle, in the State of Washington, and in the city of Portland, in the State of Oregon. The Seattle term shall be held beginning upon the second Monday in September, and the term at Portland shall be held beginning upon the third Monday in September. All appeals and writs of error from the District Courts for the district of Washington, the 1 For the notice upon petition to revise in the Eighth Circuit see Rule 38, infra, page 352, 350 RULES— CIECUIT COURT OF APPEALS [Rule XXXVII transcripts of which shall be filed in this court between the first day of April and the first day of August of each year, shall be heard at said annual term in the city of Seattle, unless it is stipulated by the parties thereto that they be heard at San Francisco. All other appeals and writs of error from said District Courts for those districts, shall be heard at San Francisco unless it be stipulated by the parties thereto that they be heard at said annual term in the city of Seattle. All appeals and writs of error from the District Court for the District of Oregon, the transcripts of which shall be filed in this court between the first day of April and the first day of August of each year shall be heard at said annual term in the city of Portland, unless it be stipulated by the parties thereto that they be heard at San Francisco. All other appeals and writs of error from said District Courts for that district shall be heard at San Francisco, unless it be stipulated by the parties thereto that they be heard at said annual term in the city of Portland. Appeals and writs of error from the District Courts for the districts of Idaho and Montana, and from the District Courts of Alaska, may, upon the stipulation of the parties thereto, be heard at the annual term to be held either at Seattle or Portland. Rule XXXVII The First Circuit has no rule after Rule 36. Second Circuit — In the preparation of briefs any citations made from "Federal Cases" must be accompanied by the citation of the original report of the case and where a citation is made from the American Bankruptcy Reports the citation in the Federal Report or United States Supreme Court reports must also be given. If the case is not reported else- where than in Federal Cases or American Bankruptcy Re- ports the fact must be so stated. The Fourth Circuit has no rule after Rule 36. Fifth Circuit — Rule 37 is entitled Writs of Error in Criminal Oases, and is the same as Rule 35 of the Eighth Circuit, p. 344. The following Form of Appearance Bond on Writ of Error in Criminal Cases is printed as an appendix to Rule 37 in the Fifth Circuit. Rule XXXVII] RULES — CIRCUIT COURT OF APPEALS 351 Know all Men by these Presents; That we, , as principal, and as sureties, are held and firmly bound unto the United States of America in the full and just sum of dollars, to be paid to the said United States of America, to which payment well and truly to be made, we bind ourselves, our heirs, executors, and administrators, jointly and severally, by these presents. Sealed with our seals and dated this day of , in the year of our Lord one thousand nine hundred and . Wiereas, lately at the term, a. d. 190- of the Court of the United States for the district of , in a suit pending in said court, between the United States of America, plaintiff, and , defendant, a judgment and sentence was rendered against the said , and the said has obtained a writ of error from the United States Circuit Court of Appeals for the Fifth Circuit, to reverse the judgment and sentence in the aforesaid suit, and a citation di- rected to the said United States of America, citing and admonishing the United States of America to be and appear in the United States Circuit Court of Appeals for the Fifth Circuit, at the city of New Orleans, Louisiana, thirty days from and after the date of said cita- tion, which citation has been duly served. Now the condition of the above obligation is such that if the said shall appear in the United States Circuit Court of Appeals for the Fifth Circuit, on the first day of the next term thereof, to be held at the city of , on the first Monday jn , a. d. 190-, and from day to day thereafter during said term, and from term to term, and from time to time, until finally discharged therefrom, and shall abide by and obey aU orders made by the said United States Circuit Court of Appeals for the Fifth Circuit, in said cause, and shall sin-- render himseK in execution of the judgment and sentence appealed from as said court may direct, if the judgment and sentence of the said Court against him shall be affirmed by the said United States Circuit Court of Appeals for the Fifth Circuit, then the above obligation to be void, eke to remain in full force, virtue, and effect. [Seal] [Seal] Approved: [Seal] Judge of the . The Seventh Circuit has no Rule 37. Eighth Circuit— Order of Court. (1) Before the filing of a petition. to revise (in Bankruptcy), the same shall be pre- sented to the court, or one of the circuit judges, for leave to file the same and for an order fixing the retum-day to the notice required by law. 352 RULES— CIECUIT COUKT OF APPEALS [Rule XXXIX (2) When such petition is accompanied by a written consent that the petition to revise may be filed and a waiver by the respondent or respondents, or their counsel, of such notice, no notice will be issued. In such cases the case will be docketed by the clerk. Ninth Circuit — Photograph of Chinese to he Attached to Bail Bond. Whenever, in cases of deportation of Chinese, the defendant be admitted to bail pending appeal, before the bond be approved and the party released from custody a photograph of defendant shall be attached to said bond. Rule XXXVIII — Review of Orders in Bankruptcy Second Circuit — Petitions to review orders in bankruptcy, filed under the provisions of sec. 24 (b) of the Bank- ruptcy Act, must be filed and served within ten days after the entry of the order sought to be reviewed, and a tran- script of the record of the proceedings in the bankruptcy court of the matter to be reviewed must be filed and the cause docketed within thirty days thereafter, but the judge of the bankruptcy court may for good cause shown enlarge the time for filing the petition or record, the order of en- largement to be made and filed with the clerk of this court before the expiration of the times hereby limited for filing the petition and record respectively. Fourth Circuit — See Rule 36, page 347. Eighth Circuit — Notice. (1) The notice to be given as provided by law (upon a petition to revise) shall be issued by the clerk of this court, under the seal thereof, and shall be addressed to the defendant or defendants, and be served by the marshal of this court, unless an acknowledgment or acceptance of service thereof is made by the defendant or defendants, or their counsel.^ Ninth Circuit— No Rule 38. Rule XXXIX — Response Eighth Circuit — The response to the petition (upon a petition to revise) when the respondent elects to make a See Rule 36, page 349. Rules XL-XLIII] RULES — CIRCUIT COURT OF APPEALS 353 written response, shall be filed within thirty days after the service of the notice or the filing of a waiver thereof. Rule XL — Printing of Record Eighth Circuit — (1) The clerk shall cause the petition and exhibits thereto if any arfd the order notice, and response, if any, to be printed as soon as convenient after the response is filed or the time for filing such response has expired and shall distribute the printed copies of same to counsel for the respective parties as soon as the same are printed. Rule XLI — Briefs and Arguments Eighth Circuit — (1) Twenty copies of the brief and argu- ment in behalf of petitioner shall be printed and filed twenty days before the date set for the hearing, and twenty copies of the brief and argument for the respondent or respondents shall be printed and filed eight days before the date of hearing. Rule XLII — Hearing Eighth Circuit — (1) Petitions to revise filed in vacation shall be assigned by the clerk for hearing in their regular order at the next session or term of the court in the same manner as appeals and writs of error in other cases. (2) Petitions to revise filed during a session of the court, when a sufficient showing of urgency is presented, may be set for hearing at that term and upon such terms and condi- tions as the court may direct. (3) Petitions to revise assigned by the clerk in their regular order as provided in sec. 1 of this rule, when such assign- ment is for a day near the close of the session, may be ad- vanced by order of the court and set for an earlier day, upon good cause shown therefor by either of the parties. Rule XLIII— Cosfe Eighth Circuit — (1) The costs and fees now provided by law in cases upon appeal or writ of error, shall, so far as the same are applicable, be taxed on petitions to revise. 23 354 EULBS — CIRCUIT COURT OF APPEALS [Rule XLV (2) Upon the determination of a petition to revise such order as to costs will be made as the court may deem nec- essary. Rule XLIV — Procedendo Eighth Circuit — (1) In all cases on a petition to revise, wherein the action or judgment of the District Court, com- plained of, is disapproved by this court, the clerk shall, at the expiration of thirty days from and after the date of entering the decree in this court, issue process in the nature of a procedendo to the said District Court for the purpose of informing such court of the proceedings in this court, so that further proceedings may be had in such District Court, in conformity with the decree of this court. (2) In all- cases on petition to revise, wherein the action or decree of the District Court, complained of, is approved and confirmed, or said petition dismissed by this court, the clerk shall at the expiration of 30 days certify a copy of such decree to the District Court. Rule XLV — Appeals and Writs of Error in Bankruptcy Cases Eighth Circuit — (1) The appeals and writs of error pro- vided for by sec. 25 of the bankruptcy law, approved July 1, 1898, shall be governed by the same rules and regula- tions as to costs and procedure as are provided by this court for appeals and writs of error in other cases. ETJLES m ADMIEALTY IN THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT Rule I — Ajypeals and New Pleadings An appeal to the Circuit Court of Appeals shall be taken by filing in the office of the clerk of the District Court and serving on the proctor of the adverse party a notice, signed by the appellant or his proctor, that the party appeals to the Circuit Court of Appeals from the decree complained of. The appeal shall be heard on the pleadings and evidence in the District Court, unless the appellate court, on motion, otherwise order.^ Rule II — Notice and Bond Sec. 1 — ^When a notice of appeal is served, the appellant shall file ia the clerk's office of the District Court, a bond for costs of the appeal, with sufficient surety in the sum of two hundred and fifty dollars, conditioned that the ap- pellant shall prosecute his appeal to effect, and pay the costs if the appeal is not sustained. . Such security shall be given within ten days after filing the notice, or the ap- peal shall be deemed abandoned, and the decree of the court below enforced, unless otherwise ordered by a judge of this court. ^ Sec. 2 — And if the appellant desires to stay the execution ^Hdd in the Ninih Circuit that this rule ao far modified Rule 11 of the General UuteB that a petition for an appeal and the allowance thereof ia not required in an admiralty case, nor is the assignment of errors required to be filed with notice of ap- peal. Hdd ftn-ther, the assignment of errors must be sent up to the Appellate Court with the apostles as required by Rule 4 of the Admiralty Rules. Kenney t. Louie, ^ No. 939. (Motion to dismiss appeal denied, May 6, 1903. No opinion filed.) 355 356 ADMIEALTY— CIRCUIT COURT OF APPEALS [Rule VI of the decree of the court below, the bond which he shall give shall be a bond with sufficient security, in such further sum as the judge of the District Court or a judge of this court shall order, conditioned that he shall abide by and perform whatever decree may be rendered by this court in the cause or on the mandate of this court by the court below. Sec. 3— The appellant shall, on filing either of such bonds, give notice of such filing, and of the names and residence of the sureties, and if the appellee, within two days, ex- cepts to the sureties, they shall justify, on notice, within two days after such exception. Rule III — Review in Part Only The appellant may also, at his option, state in his notice of appeal that he desires only to review one or more ques- tions involved in the cause, which questions must be clearly and succinctly stated; and he shall be concluded in this behalf by such notice, and the review upon such an appeal shall be limited to such question or questions. Rule IV — Apostles on Appeal to Contain Sec. 1 — ^The apostles, on an appeal to this court, shall, in cases where a general notice of appeal is served, consist of the following: (1) A caption exhibiting the proper style of the court and the title of the cause, and a statement showing the time of the commencement of the suit; the names of the parties, setting forth the original parties and those who have be- come parties before the appeal, if any change has taken place; the several dates when the respective pleadings were filed; whether or not the defendant was arrested, or bail taken, or property attached, or arrested, and if so, an accoimt of the proceedings thereunder; the time when the trial was had, and the name of the judge hearing the same; whether or not any question was referred to a commissioner or commissioners, and if so, the result of the proceedings and report thereon; the date of the entry of the interlocutory Rule VI] ADMIRALTY — CIRCUIT COURT OP APPEALS 357 and final decrees; and the date when the notice of appeal was filed. (2) All the pleadings, with the exhibits annexed thereto. (3) All the testimony and other proofs adduced in the cause. (4) The interlocutory decree and any order of the court which appellant may desire to have reviewed on the appeal. (5) Any report of a commissioner or commissioners to which exception may have been taken, with the order or orders of the court respecting the same, and the exceptions to the report, and so much of the testimony taken in the proceeding as may be necessary to a review of the exceptions. (6) All opinions of the court, whether upon interlocu- tory questions or finally deciding the cause. (7) The final decree, and the notice of appeal; and (8) The assignments of error. Sec. 2 — ^AU other papers shall be omitted unless other- wise ordered by the judge who heard the cause. Sec. 3 — ^Where the appellant shall appeal specially, and seek only to review one or more questions involved in the cause, the apostles may, by stipulation between the proctors for the respective parties, contain only such papers and proceedings and evidence as are necessary to review the questions raised by the appeal. Rule V — Certifying Records The appellants shall, within thirty days after giving notice of appeal, procure to be filed in this court the apostles certified by the clerk of the District Court, or in case of a special appeal, the stipulated record, with the certification by the said clerk of all papers contained therein on file in his oflBce. Rule Yl—If Appearance of Appellee not. Entered If the appellee does not cause his appearance to be en- tered in this court, within ten days after service on his proctor of notice that the apostles are filed in this court, the appellant may proceed ex parte in the cause, and have such decree as the nature of the case may demand. 358 ADMIRALTY— CIRCUIT COURT OP APPEALS [Rule XI Rule VII — New Allegations, etc. Upon sufficient cause shown, this court, or any judge thereof, may allow either appellant or appellee to make new allegations or pray different relief, or interpose a new defense, or take new proofs. Application for such leave must be made within fifteen days after the filing of the apostles and upon at least four days' notice to the adverse party (or his attorney of record as the rule in the Ninth Circuit reads.) Rule VIII — New Pleadings — New Testimony If leave be granted to make new allegations, pray different relief, or interpose a new defense, the moving party shall, within ten days thereafter, serve such new pleading, duly verified, on the adverse party, who shall, if such pleading be a libel, within twenty days answer on oath. If leave be given to take new testimony, the same may be taken and filed within thirty days after the entry of the order granting such leave, and the adverse party may take and file counter testimony within twenty days after such filing. Rule IX — New Testimony — How Taken Such testimony shall be taken by deposition, before any United States commissioner, or notary public, upon rea- sonable notice in writing given to the opposite party; or by commission issued out of this court with interrogatories annexed. Upon proper cause shown, the court may grant an open commission. Rule X — Printing New Pleadings and Testimony If new pleadings are filed or testimony taken in this court, the same shall also be printed and furnished by the clerk, as in the twenty-third General Rule provided. Rule XI — Motions All motions shall be made upon at least four days' notice. Rule XV] ADMIRALTY — CIRCUIT COURT OF APPEALS 359 Rule Xll—Writ of Inhibition A writ of inhibition may be awarded by this court on motion of the appellant to stay proceedings in the court below when circumstances require. Rule XIII — Mandamus A mandamus may, in like manner, be obtained, to compel a return of the apostles when imreasonably delayed by the clerk, or court, below. Rule XIV— Cases to be Placed on Docket Each case shall be placed on the docket as soon as the printing of the apostles is completed by the clerk. Rule XV— Briefs Sec. 1 — Counsel for the appellant shall file with the clerk of this court, at least twenty days before the case is called for argument, ten copies of a printed brief, and shall at the same time serve two copies thereof on the proctors of record, or on the counsel engaged upon the opposite side. This brief shall contain in order here stated: (1) A statement of the nature of the appeal, the court from which the appeal is taken, and a concise abstract or statement of the case, presenting succinctly the questions involved, and the manner in which they were raised. (2) If the pleadings have been amended in this court or new proofs have been taken, it shall be stated what amend- ments have been made and in what respect the new proofs have changed, or tended to change, the case as made in the court below. (3) A brief of the argument, exhibiting a clear statement of the points of law or fact to be discussed, with a reference to the folios of the record or to the numbers of the questions, and the authorities relied upon in support of each point. Sec. 2 — ^The counsel for the appellee shall file with the clerk of the court ten printed copies of his brief and serve two copies thereof at least ten days before the case is called for argument. His brief shall be of a like character, with 360 ADMIRALTY — CIECUIT COURT OF APPEALS .[Rule XIX that required of the appellant, and in case new proofs are taken on behalf of the appellee, the brief shall so state and wherein the new proofs have changed the case as made in the court below. Sec. 3 — The reasonable expense of printing briefs shall be an item of taxable costs. Rule XVI — Mandates The decrees of this court shall direct that a mandate issue to the court below. Rule XVII — Extension of Time The time specified in the foregoing rules for any pro- ceeding may be extended by order of a judge of this court. Rule XVIII — When Rules of District Courts to Apply In all matters, in civil causes of admiralty and maritime jurisdiction, not expressly provided for by the foregoing rules of this court, the rules of practice of the District Court of the district in which the cause was decided, being in force at the time (not being inconsistent with these rules), will be adopted so far as may seem proper. Rule XIX — What General Rules Shall be Deemed Admiralty Rules The following of the General Rules of this court, and no others, shall be deemed Admiralty Rules, viz: Rules 3, 4, 5, 6, 7, 9, 11, 12; sec. 4 of Rule 14; Rules 15, 16, 17, 18, 19, 20, 21, 22, 23; sec. 5 of General Rule 24; Rules 25, 26, 27, 28, 29; sec. 4 of Rule 30; Rules 31, 32, 34, and 36. In the Ninth Circuit the rules in admiralty are the same as in the Second Circuit, to and including Rule 8. Rule 9 is as follows: New Testimony — How Taken Such testimony shall be taken by deposition before the clerk of this court, or any United States commissioner, Rule XIX] ADMIEALTY — CIECUIT COURT OF APPEALS 361 or any clerk of a District or Circuit Court of the United States, or any notary public upon reasonable notice, in writing, given to the opposite party or his attorney of record, either in this court or in the court below, which notice must state the name or names of the witness or witnesses and the time and place of taking his or their deposition or deposi- tions; or by commission issued out of this court with inter- rogatories annexed. Upon sufficient cause shown, the court may grant an open commission. Rules 10 and 11 are as in the Second Circuit. Rule 12 reads as follows: Extension of Time The time specified in the foregoing rules for any pro- ceeding may be extended by order of a judge of this court. There are no other admiralty rules in the Nmth Circuit. EULES OF THE UNITED STATES COMT OF CUSTOMS APPEALS RxJLE I — Clerk The clerk of this court shall keep his office in the city of Washington. He shall not practice either as an attorney or counsellor of this court while he shall continue to be clerk. He shall indorse on every paper the date on which the same is filed and shall not permit any original paper, document, or exhibit to be taken from the court room or from his office without an order from the court or permis- sion of one of the judges thereof. But the parties interested in any matter pending before the court may have full access to the records in such matters in the office of the clerk and may take copies of all papers ffied therein. Rule II — Attorneys Parties shall be entitled to be represented in this court by attorney. Any attorney who is entitled to practice in the Supreme Court of the United States or in the Circuit Courts of Appeals or Circuit Courts of the United States or in the court of last resort in any State or Territory may be admitted to practice in and have his name enrolled as an attorney of this court by the clerk upon filing a recommenda- tion of any justice of the Supreme Court of the United States, United States circuit or district judge, or a judge of the court of last resort of the State or Territory in which such attorney may reside at the time of his application for admission to this court, or upon motion by an attorney of this court. Prior to the issuance of the certificate of admission the attorney shall 363 364 RULES — COURT OF CUSTOMS APPEALS [Rules III-V take and subscribe the following oath of office, which shall be filed with the clerk: " I, , do solemnly swear [or affirm] that I will demean myself, as an attorney and counsellor of this court, uprightly and according to law, and that I will support the Constitution of the United States." Rule III — Process Processes to be issued from this court shall be of such form and style as is in use in the Supreme Court of the United States. There shall also be a process to be issued to the Board of General Appraisers, which shall be called a mandate, and shall in terms direct the transmission to this court in proper cases of proceedings taken and had before said Board of General Appraisers. All writs shall be attested in the name of the presiding judge, shall be signed by the clerk of the court, with the seal of the court attached, and shall be made returnable 30 days from the date thereof; provided that the time fixed for the return of such record may be extended, upon application to the court, or a judge thereof, at chambers, and upon good cause shown, or the time may be extended by stipulation, which shall be made expressly subject to the future orders of the court. Rule IV — Review Any party feeling aggrieved at any decision of tha Board of General Appraisers and who may be entitled, under the provisions of chapter 8 of the act entitled "An act to codify, revise, and amend the laws relating to the judiciary," ap- proved March 3, 1911, or any amendment thereof, to have a review of said decision, may, within the time fixed by said act or any amendment thereof, apply to this court for a review of the questions of law and fact included therein. Rule V — Assignment of Errors The party seeking a review of any appealable decision of the Board of General Appraisers shall file with the clerk, Rules VI, VII] RULES— COURT OF CUSTOMS APPEALS 365 in duplicate, a concise statement of the errors of law and fact complained of, and a copy of such statement shall be served on the collector or on the importer, owner, con- signee, agent, or attorney, as the case may be, either by mail or by delivering the same personally to the party to be served or to his attorney, who shall have regularly appeared before said Board of General Appraisers on or before the date of such application. Such service, in case of mailing, shall be by depositing in a post office a copy of such statement in a sealed envelope plainly addressed to the party or attorney to be served at his place of business or residence, with postage thereon fully prepaid. In all cases where the United States is not the appellant such application for review shall be accompanied by the filing fee of $6 and by a bond for costs in a sum not less than $25. Rule VI — Mandate Upon the filing of such application for review, a mandate shall issue to said Board of General Appraisers directing said board to transmit to said court the records and evidence taken by them, together with a certified statement of the facts involved in the case and the decision thereon, together with all samples and exhibits used before them. Rule VII — Calendar All cases transmitted to this court, whether removed from the Board of General Appraisers in response to the mandate of this court or by the transfer from the United States Circuit Courts of Appeals, United States Circuit, Terri- torial, or District Courts, shall, upon receipt of the record by the clerk, be placed upon the calendar in the order in which they are received, and such cases shall stand for hearing and submission in that order without notice; provided, the hearing of any case may be postponed for good cause shown. On motion of either party, with due notice to the other side, the court may advance on the calendar cases that are of unusual importance, or whenever other considerations of public policy make such action appear desirable. 366 RULES— COURT OF CUSTOMS APPEALS [Rules VIII-X Rule VIII — Records and Briefs The appellant shall, within 14 days from the filing of such return, or within such further time as may be allowed by the court or a judge thereof at chambers, deposit with the clerk a sum suflBcient to meet the cost of printing the record. As soon as the record is printed the clerk shall retain at least 15 copies for the use of the court and furnish not less than 10 copies to the appellant, who shall serve not less than 3 copies on the appellee or his counsel. Within 14 days after the receipt of the printed record, appellant shall serve on the appellee or his counsel not less than 3 copies of his brief, and within 14 days thereafter the appellee shall serve not less than 3 printed copies of his brief with the appellant or his counsel. Both sides shall promptly file not less than 15 copies of their briefs with the clerk. Extension of the time for filing briefs for a period not exceeding 30 days may be made by stipulation, which shall become effective when filed with the clerk. All records and briefs printed for the use of this court shall be in small-pica type, 24 pica ems to the line, 35 lines to a page, leaded with four-to-pica leads. All records and briefs shall have a suitable cover containing the title of the court and cause. Records shall be properly indexed and printed imder the direction of the clerk of the court. The size of the pages of the records and briefs shall be 9J^ inches by e^/s inches. Rule IX — Sessions The court will convene during sessions at 10 A. m., and will continue its sessions until all cases on its calendar in readiness for hearing are disposed of. All motions shall be presented at the opening of court on Tuesdays, but when the court is in session for hearing causes they may be presented at the opening of court on any day of the session. Rule X — Appeals, when Taken The court shall be open for business on each business day of the year for the purpose of receiving applications for appeal, and on such days writs directed to the Board of Rules XI-XIV] RULES— COITRT OF CUSTOMS APPEALS 367 General Appraisers may issue as of course, attested in the name of the presiding judge and signed by the clerk or assist- ant clerk. In case of a vacancy in the office of the presiding judge, they may be attested in the name of the next judge in the order of precedence as acting presiding judge. Rule XI — Amendments — Judgments The court may, in furtherance of justice, permit amend- ments to processes or proceedings in any case, and on final hearing may affirm, reverse, or modify any ruling, decision, or conclusion of the Board of General Appraisers, or may reverse and remand for new trial or other appropriate proceeding. Rule XII — Final Decision — Mandate At the expiration of 30 days after decision by the court, the court shall issue its mandate to the Board of General Appraisers for such further proceedings as shall be proper to be taken in pursuance of such determination. Rule XIII— Fees The fees of the clerk of the court shall be $6 in each case. No fee shall be exacted in cases on appeal to other Federal courts and transferred to this court for final determination. There shall be paid for each certificate of admission of an attorney to practice, $1; and for making or copying any record or other paper and certifying the same, 15 cents per folio of 100 words. An amount sufficient to cover the cost of printing the record shall be deposited with the clerk on his demand, provided that when an appeal is taken by the United States no payment of fees shall be required. In all other cases fees shall be paid in advance. The fees and costs to be allowed the marshal shall be, and hereby are, fixed the same as those allowed the mar- shal of the Supreme Court of the United States. Rule XIV — Arguments Arguments shall be limited to one hour on a side, and not more than two counsel on a side shall be heard in any case 368 RULES — COURT OF CUSTOMS APPEALS [Rules XV, XVI except by special order of the court. The time for oral argu- ment may be extended in the discretion of the court. Rule XV — Appearances It will not be necessary for the Assistant Attorney General in charge of customs cases to file a notice of appearance in this court or to serve such notice on opposing attorneys. Where the appellant is a protestant, if the petition for review is filed by a member of the bar of this court, no separate appearance as attorney will be required, but a notice of ap- pearance shall be served on the Assistant Attorney General unless such appellant's attorney represented the importer before the Board of General Appraisers. Where the United States is the appellant the attorneys for the appellee shall file a notice of appearance in this court and serve a copy of such notice on the Assistant Attorney General. Rule XVI — Applications for Rehearing No application for rehearing will be considered by the court unless the moving party, at as early a date as may be practicable and within 30 days after decision unless further time be granted, shall cause any papers upon which it is based, together with his reasons for granting the same, to be printed and 12 copies thereof filed with the clerk of this court, together with proof that a copy thereof has been served upon coimsel for the opposing party. The opposing party may at any time within 10 days thereafter file with tiie clerk of the court his objections to the granting of the application, serve a copy thereof upon the moving party, and the ques- tion shall thereupon be deemed submitted for decision. EULES OF PEAOTIOE FOE THE COURTS OF EQUITY OF THE UNITED STATES Adopted in a. d. 1822 Under the authority given by the Act of May 8th, 1792, c. 137, sec. 2, the following rules were ordered by the Supreme Court, to be the Rules of Practice for the Courts of Equity of the United States. Rule I Rules shall be held monthly in the clerk's office on the first Monday in every month, for the purpose of entering all proceedings and orders, which may be entered at the rules, and which are not taken or made in open court. The rules shall be held under the direction of the clerk, but either of the judges of the court may make or allow any special orders in any cause, not inconsistent with the regulations herein prescribed, which shall be entered in the rule book, and take effect accordingly. Rule II All process shall be made returnable to the next succeeding term, or to any intermediate rule day, at the election of the party praying the same, and the return of the said process "executed" shall be effectual whereon to ground any subse- quent proceedings. If the party be not found, a copy served by the person leaving the same shall be left with his wife, or any free white person who is a member of his or her family, at his or her dwelling house or usual place of abode, and the truth of the case shall be returned; and where such process not be executed, the clerk is directed to issue other 24 369 370 EQUITY RULES ADOPTED A. D. 1822 [Rules III-VI similar process, if the same be required by the party at whose instance the original process was sued out; and if upon such second process the party be not found, a copy shall be again left in like manner as is hereinbefore directed, and upon a second return that the party is not found, and that a copy has been left as herein directed, the same proceedings may be had as on process returned executed. Rule III Where any person, either plaintiff or defendant, in any suit, shall be dead, it shall be lawful for the clerk, during the recess of the court, upon application, to issue process to bring into court the representative of such deceased person. Rule IV The plaintiff shall file his bill before or at the time of taking out the subpoena. Rule V The plaintiff may amend his bill before the defendant or his attorney or solicitor hath taken out a copy thereof, or in a small matter afterwards, without paying costs; but if he ameijid in a material point after such copy obtained, he shall pay the defendant all costs occasioned thereby. Rule VI The day of appearance shall be the rule day aftet the process is returned executed, or after the second return of a copy left if the process shall not be executed, when the proc- ess is returnable to the rules, or the rule day next succeeding the term, where the process shall be returnable to a term of the court; and if the defendant shall not appear and file his answer within three months after the day of appearance, and after the bill shall have been filed, the plaintiff may proceed to take his bill for confessed and the matter thereof shall be decreed accordingly, which decree shall be absolute, unless cause be shown at the term next succeeding that to which the process shall be returned executed. Rules VII-XI] EQUITY BULES ADOPTED A. D. 1822 371 Rule VII If the defendant cannot be found, it shall be sufficient service of any decree nisi, to leave a copy thereof with his wife or any free white person who is a member of his or her family; and if no such person be found, then it shall be suffi- cient service to publish the same in such paper of the district as may be designated by the court for such time as the court shall direct. Rule VIII All process shall be executed by a sworn officer or affidavit must be made of the service thereof, when executed by any other person. Rule IX Every defendant may swear to his answer before any justice or judge of the United States, or a commissioner or master, or other person appointed by the court, or judge of any court of a State or Territory, or a justice of the peace, or notary public of any State or Territory. Rule X If the defendant does not file his answer within three months after the subpoena be returned executed, or after a second return of a copy left having been made at least three months, the plaintiff may either proceed on his bill as con- fessed, or have a general commission to take depositions, or he may move the court for an attachment to bring in the defendant to answer interrogatories, at his election, and may proceed to a hearing in the two last cases as if the answer had been filed and the cause was at issue. Provided, that the court may, on cause shown, allow the answer to be filed, and grant a further day for such hearing. And when a party is in custody on such writ of attachment, he shall be detained in custody until he shall file his answer, or be discharged by order of the court or one of the judges thereof. Rule XI No special replication to an answer shall be filed but by leave of the court or one of the judges thereof, for cause 372 EQUITY RULES ADOPTED A, D. 1822 [Rules XII-XV shown; and if any matter alleged in the answer shall make it necessary for the plaintiff to amend his bill, he may have leave to amend the same with or without costs at the discre- tion of the court. Rule XII When a cross-bill shall be exhibited, the defendant or defendants to the first bill shall answer thereto, before the defendant or defendants to the cross-bill shall be compelled to answer such cross-bill. Rule XIII The complainant shall put in the general replication, or file exceptions within two calendar months after the answer shall have been put in. If he fails so to do, the defendant may leave a rule to reply with the clerk of the court, which being expired, and no replication or exceptions filed, the suit may be dismissed with costs; but the court may, for cause, order the same to be retained on payment of costs. Rule XIV If the plaintiff's attorney or solicitor shall except against any answer as insufficient, he may file his exceptions, and leave a rule with the clerk to make a better answer within two calendar months; and if within that time the defendant shall put in a sufiicient answer, the same shall be received without costs; but if any defendant insists on the sufliciency of his answer, or neglects or refuses to put in a sufficient answer, or shall put in another insufficient answer, the plaintiff may set down his exceptions to be argued at the next term; and after the expiration of that rule, or any second insufficient answer put in, no further or other answer shall be received but on payment of costs. Rule XV If upon argument the plaintiff's exceptions shall be over- ruled, or the defendant's answer adjudged insufficient, the plaintiff shall pay to the defendant, or the defendant to the plaintiff, such costs as shall be allowed by the court. Rules XVI-XX] EQUITY RULES ADOPTED A. D. 1822 373 Rule XVI Upon a second answer being adjudged insufficient costs shall be doubled by the court, and the defendant may be examined upon interrogatories, and committed until he or she answer them; or the plaintiff may move the court to take so much of his bill as is not answered for confessed, and may file his replication, obtain commissions, and proceed to hearing in the usual manner. Rule XVII Rules to plead, answer, reply, rejoin, or other proceedings, not before particularly mentioned, when necessary, shall be given from month to month with the clerk in his office, and shall be entered in a rule book for the information of all parties, attorneys, or solicitors concerned therein, and shall be considered as sufficient notice thereof. Rule XVIII The defendant may at any time before the bill is taken for confessed, or afterwards with the leave of the court, demur or plead to the whole bill, or part of it, and he may demur to part, plead to part, and answer as to the residue, but in any case in which the bill charges fraud or combination, a plea to such part must be accompanied with an answer fortifying the plea, and explicitly denying the fraud and combination, and the fact on which the charge is founded. Rule XIX The plaintiff may set down the demurrer or plea to be argued, or he may take issue on the plea. If upon an issue, the facts stated in the plea, be determined for the defendant, they shall avail him as far as in law and equity they ought to avail him. Rule XX If a plea or demurrer be overruled, no other plea or de- murrer shall be thereafter received, but the defendant shall proceed to answer the plaintiff's bill; and if he fail to do so 374 EQUITY RULES ADOPTED A. D. 1822 [Rules XXI-XXV within two calendar months, the same, or so much thereof as was covered by the plea or demurrer, may be taken for confessed, and the matter thereof be decreed accordmgly. Rule XXI If the plaintiff shall not reply to, or set for hearing any plea or demurrer, before the second term of the court after filing the same, the bill may be dismissed with costs. Rule XXII Upon a plea or demurrer being argued and overruled, costs shall be paid as where an answer is adjudged insufficient; but if adjudged good, the defendant shall have his costs. Rule XXIII The defendant, instead of filing a formal demurrer or plea, may insist on any special matter in his answer, and have the same benefit thereof, as if he had pleaded the same matter or had demurred to the bill. Rule XXIV After any bill filed, and before the defendant hath an- swered, upon oath made that any of the plaintiff's witnesses are aged, infirm, or going out of the coimtry, or that any one of them is a single witness to a material fact, the clerk may issue a commission for taking the examination of such witness or witnesses de bene esse, the party praying such commis- sion giving reasonable notice to the adverse party of the time and place of taking such deposition. Rule XXV Testimony may be taken according to the Acts of Con- gress, or imder a commission. Whenever a general conmiis- sion shall be issued for taking depositions upon answer and replication, six months from the time of the replication shall be allowed the parties for taking their depositions; and either party at the expiration of the said six months may set the Rules XXVI-XXVIII] equity rules adopted 1822 375 cause for hearing, and no deposition taken after that time shall be read as evidence on the hearmg, unless the same was taken by consent of parties, by special order of the court, or out of the district. Rule XXVI Commissions to take depositions may be executed by any person qualified to take testimony according to the laws of the State, or by any person or persons, not exceeding three, appointed or named in the commission by order of the court, or by any judge thereof in vacation. All testimony taken under a commission shall be taken on interrogatories and cross-interrogatories filed in the cause, unless the parties shall dispense therewith, which interrogatories shall be filed in the clerk's office ten days previous to a rule-day, after which the defendant shall be allowed five days to file his cross-interrogatories, unless he waives his right. Rule XXVII Orders for the admission of a guardian ad litem, to defend a suit, may be made either by the court or one of the judges thereof. Rule XXVIII Witnesses who live within the district may, upon due notice of the opposite party, be sunmaoned to appear before the commissioners appointed to take testimony, or before a master or examiner appointed in any cause by subpoena in the usual form, which may be issued by the clerk in blank, and filled up by the party praying the same, or by the com- missioners, master, or examiner, requiring the attendance of the witnesses at the time and place specified, who shall be allowed for attendance the same compensation as for attend- ance in cotirt; and if any witness shall refuse to appear, or to give evidence, it shall be deemed a contempt of the court, which being certified to the clerk's office by the commis- sioners, master or examiner, an attachment may issue there- upon, by order of the court, or of any judge thereof, in the same manner as if the contempt were for not attending, or 376 EQUITY RULES ADOPTED 1822 [RuleS XXIX-XXXII for refusing to give testimony in the court. But nothing herein 'contained shall prevent the examination of witnesses viva voce when produced in open court. Rule XXIX When a matter is referred to a master to examine and report thereon, he shall assign a day and place therefor, and give reasonable notice thereof to the parties, or to the attor- ney or solicitor of such party as may not reside within the district, and if either party shall fail to attend at the time and place, the master may adjourn the examination of the matter to some future day, and give notice thereof to the parties, in which notice it shall be expressed that if the party fail again to appear, the master will proceed ex parte; and if after re- ceiving such notice the party shall again fail to appear, the master may proceed to examine the matter to him referred, and to report the same to the court, that such proceedings may be had thereon as to the court shall seem equitable and right. Rule XXX The courts in their sittings may regulate all proceedings in the office, and may set aside any dismissions, and reinstate the suits on such terms as may appear equitable. Rule XXXI Every petition for a rehearing shall contain the special matter or cause on which such hearing is applied for, shall be signed by counsel, and the facts therein stated, if not ap- parent on the record, shall be verified by the oath of the party or some other person. No rehearing shall be granted after the term at which the final decree of the court shall have been entered and recorded, if an appeal lies to the Supreme Court. But if no appeal lies, it may be admitted at any time before the end of the next term of the court. Rule XXXII The Circuit Courts may make further rules and regula- tions, not inconsistent with the rules hereby prescribed, in their discretion. Rule XXXIII] EQUITY RULES ADOPTED A, D. 1822 377 Rule XXXIII In all the cases where rules prescribed by this court, or by the Circuit Court, do not apply, the practice of the Circuit Courts shall be regulated by the practice of the High Court of Chancery in England. Ordered by the court, that the foregoing rules be the rules of practice for the Courts of Equity of the United States, from and after the first day of July next, and the clerk of the court is directed to have the same printed, and to transmit a printed copy thereof, duly certified, to the clerks of the several courts of the United States, and to each of the judges thereof. EULES OF PEAOTIOE FOE THE COURTS OF EQUITY OF THE UNITED STATES Adopted March 2, 1842; 1 How. xiii et seq. Rule I — Court Always Open The Circuit Courts, as Courts of Equity, shall be deemed always open for the purpose of filing bills, answers, and other pleadings; for issuing and returning mesne and final process and commissions; and for making and directing all interlocu- tory motions, orders, rules, and other proceedings, pre- paratory to hearing of all causes upon their merits. Rule 1 in the revision promulgated November 4, 1912. Rule II— Clerk's Office , The clerk's office shall be open, and the clerk shall be in attendance therein, on the first Monday of every month, for the purpose of receiving, entering, entertaining, and disposing of all motions, rules, orders, and other proceedings, which are grantable of course and applied for, or had by the parties or their solicitors, in all causes pending in equity, in pursuance of the rules hereby prescribed. Substantially the same as Rule 2 in the revision promulgated November i, 1912. Rule III — Orders, Rules, etc. Any judge of the Circuit Court, as well in vacation as in term, may, at chambers, or on the rule-days at the clerk's office, make and direct all such interlocutory orders, rules, and other proceedings, preparatory to the hearing of all causes upon their merits in the same manner and with the 379 380 EQUITY RULES ADOPTED 1842 [Rules IV, V same effect as the Circuit Court could make and direct the same in term, reasonable notice of the application therefor being first given to the adverse party, or his solicitor, to appear and show cause to the contrary, at the next rule-day thereafter, unless some other time is assigned by the judge for the hearing. Made part of Eule 1 in the revision promulgated November 4, 1912. Rule IV — Motions, Rules, etc.. Entered in Order Book All motions, rules, orders, and other proceedings, made and directed at chambers, or on rule-days at the clerk's office, whether special or of course, shall be entered by the clerk in an order-book, to be kept at the clerk's office, on the day when they are made and directed; which book shall be open at all office hours to the free inspection of the parties in any suit in equity, and their solicitors. And, except in cases where personal or other notice is specially required or directed, such entry in the order-book shall be deemed sufficient notice to the parties and their solicitors, without further service thereof, of all orders, rules, acts, notices, and other proceed- ings entered in such order-book, touching any and all the matters in the suits to and in which they are parties and solicitors. And notice to the solicitors shall be deemed notice to the parties for whom they appear and whom they repre- sent, in all cases where personal notice on the parties is not otherwise specially required. Where the solicitors for all the parties in a suit reside in or near the same town or city, the judges of the Circuit Court may, by rule, abridge the time for notice of rules, orders, or other proceedings not requiring personal service on the parties, in their discretion. Amended by Rule 4 in the revision promulgated November 4, 1912. Rule V — Motions for Process Grantdble by Clerk AJl motions and applications in the clerk's office for the issuing of mesne process and final process to enforce and execute decrees; for filing bills, answers, pleas, demurrers, and other pleadings; for making amendments to bills and answers; for taking bills pro confesso; for filing exceptions; and for other proceedings in the clerk's office which do not, by the rules Rules VI-VIII] EQUITY RULES ADOPTED 1842 381 hereinafter prescribed, require any allowance or order of the court or of any judge thereof, shall be deemed motions and applications grantable of course by the clerk of the court. But the same may be suspended, or altered, or rescmded by any judge of the court, upon special cause shown. Substantially the same aa Rule 5 in the revision promulgated November 4, 1912. Rule VI — Motions and Orders not Grantable as of Course All motions for rules or orders and other proceedings, which are not grantable of course or without notice, shall, unless a different time be assigned by a judge of the court, be made on a rule-day, and entered in the order-book, and shall be heard at the rule-day next after that on which the motion is made. And if the adverse party, or his solicitor, shall not then appear, or shall not show good cause against the same, the motion may be heard by any judge of the court ex parte, and granted, as if not objected to, or refused, in his discretion. Amended by Rule 6 in the revision promulgated November 4, 1912. Rule VII — Compulsory Process The process of subpoena shall constitute the proper mesne process in all suits in equity, in the first instance, to require the defendant to appear and answer the exigency of the bill; and, imless otherwise provided in these rules, or specially or- dered by the Circuit Court, a writ of attachment, and, if the defendant cannot be found, a writ of sequestration, or a writ of assistance to enforce a delivery of possession, as the case may require, shall be the proper process to issue for the pur- pose of compelling obedience to any interlocutory or final order or decree of the court. Same as Rule 7 in the revision promulgated November 4, 1912 Rule VIII — Final Process Final process to execute any decree may, if the decree be solely for the payment of money, be by a writ of execution, in the form used in the Circuit Court in suits at common law in actions of assumpsit. If the decree be for the performance of any specific act, as, for example, for the execution of a con- 382 iEQUITY BULES ADOPTED 1842 (Rules IX-XI veyance of land or the delivering up of deeds or other docu- ments, the decree shall, in all cases, prescribe the time within which the act shall be done, of which the defendant shall be bound, without further service, to take notice; and upon affidavit of the plaintiff, filed in the clerk's office, that the same has not been complied with within the prescribed time, the clerk shall issue a writ of attachment against the delin- quent party, from which, if attached thereon, he shall not be discharged, unless upon a full compliance with the decree and the payment of all costs, or upon a special order of the court, or of a judge thereof, upon motion and affidavit, enlarging the time for the performance thereof. If the delinquent party cannot be found, a writ of sequestration shall issue against his estate upon the return of non est inventus, to compel obedience to the decree. Amended by Rule 8 in the revision promulgated November 4, 1912. Rule IX — Writ of Assistance When any decree or order is for the delivery or possession, upon proof made by affidavit of a demand and refusal to obey the decree or order, the party prosecuting the same shall be entitled to a writ of assistance from the clerk of the court. Same as Rule 9 in the revision promulgated November 4, 1912. Rule X — Persons not Parties Every person, not being a party in any cause, who has ob- tained an order, or in whose favor an order shall have bf en made, shall be enabled to enforce obedience to such order by the same process as if he were a party to the cause; and every person, not being a party in any cause, against whom obe- dience to any order of the court may be enforced, shall be liable to the same process for enforcing obedience to such orders as if he were a party in the cause. Made Rule 11 in the revision promulgated November 4, 1912. Rule XI — Svbpcena No process of subpoena shall issue from the clerk's office in any suit in equity until the bill is filed in the office. Part of Rule 12 in the revision promulgated November 4, 1912. Rules XII-XV] EQUITY RULES ADOPTED 1842 383 Rule XII — Subpoena when Returnable Whenever a bill is filed, the clerk shall issue the process of subpoena thereon, as of course, upon the application of the plaintiff, which shall contain the Christian names as well as the surnames of the parties, and shall be returnable into the clerk's office the nejct rule-day, or the next rule-day but one, at the election of the plaintiff, occurring after twenty days from the time of the issuing thereof. At the bottom of the sub- poena shall be placed a memorandmn, that the defendant is to enter his appearance in the suit in the clerk's office on or before the day at which the writ is returnable; otherwise the bill may be taken pro confesso. Where there are more than one defendant, a writ of subpoena may, at the election of the plaintiff, be sued out separately for each defendant, except in the case of husband and wife defendants, or a joint sub- poena against all the defendants. Amended and made part of Rule 12 in the revision promulgated November 4, 1912. Rule XIII — Service of Suhpxrm The service of all subpoenas shall be by a delivery of a copy thereof by the officer serving the same to the defendant personally, or by leaving a copy thereof at the dwelling- house or usual place of abode of each defendant, with some adult person who is a member or resident in the family. Same as Rule 13 in the revision promulgated November 4, 1912. Rule XIV — Alias Subpoena Whenever any subpoena shall be returned not executed as to any defendant, the plaintiff shall be entitled to another subpoena, Mies quoties, against such defendant, if he shall require it, until due service is made. Same as Rule 14 in the revision promulgated November 4, 1912. Rule XV— Tf Ao to Make Service The service of all process, mesne and final, shall be by the marshal of the district, or his deputy, or by some other person specially appointed by the court for that purpose, and not 384 EQUITY RULES ADOPTED 1842 [Rules XVI-XVIII otherwise. In the latter case, the person serving the process shall make affidavit thereof. Same as Rule 15 in the revision promulgated November 4, 1912. Rule XVI — Suit Entered on Docket Upon the return of the subpoena as served and executed upon any defendant, the clerk shall enter the suit upon his docket as pending in the court, and shall state the time of the entry. Made part of Kule 3 in the revision promulgated November 4, 1912 Rule XVII — Appearance The appearance-day of the defendant shall be the rule-day to which the subpoena is made returnable, provided he has been served with the process twenty days before that day; otherwise his appearance-day shall be the next rule-day succeeding the rule-day when the process is returnable. The appearance of the defendant, either personally or by his solicitor, shall be entered in the order-book on the day thereof by the clerk. Amended and made part of Rule 16 in the revision promulgated November 4, 1912, Rule XVIII— BiMs Taken Pro Confesso It shall be the duty of the defendant, unless the time shall be otherwise enlarged, for cause shown, by a judge of the court, upon motion for that purpose, to file his plea, demurrer, or answer to the bill, in the clerk's office, on the rule-day next succeeding that of entering his appearance. In default thereof, the plaintiff may, at his election, enter an order (as of course) in the order-book, that the bill be taken pro confesso; and thereupon the cause shall be proceeded in ex parte, and the matter of the bill may be decreed by the court at any time after the expiration of thirty days from and after the entry of said order, if the same can be done without an answer, and is proper to be decreed; or the plaintiff, if he requires any discovery or answer to enable him to obtain a proper decree, shall be entitled to process of attachment Rules XIX, XX] EQUITY RULES ADOPTED 1842 385 against the defendant to compel an answer, and the defendant shall not, when arrested upon such process, be discharged therefrom, unless upon filmg his answer, or otherwise com- plying with such order as the court or a judge thereof may direct as to pleading to or fully answering the bill, within a period to be fixed by the court or judge, and undertaking to speed the cause. Covered by Rule 16 in the revision promulgated November 4, 1912. Rule XIX — Decree on. Default When the bill is taken pro confesso the court may proceed to a decree at any time after the expiration of thirty days from and after the entry of the order to take the bill pro confesso, and such decree rendered shall be deemed absolute, unless the court shall, at the same term, set aside the same, or enlarge the time for filing the answer, upon cause shown upon motion and affidavit of the defendant. And no such motion shall be granted, unless upon the payment of the costs of the plaintiff in the suit up to that time, or such part thereof as the court shall deem reasonable, and imless the defendant shall under- take to file his answer within such time as the court shall direct, and submit to such other terms as the court shall direct, for the purpose of speeding the cause. Made Rule 17 in the revision promulgated November 4, 1912. Rule XX — Frame of Bills Every bill, in the introductory part thereof, shall contain the names, places of abode, and citizenship of all the parties, plaintiffs and defendants, by and against whom the bill is brought. The form, in substance, shall be as follows : " To the judges of the Circuit Court of the United States for the district of : A. B., of , and a citizen of the State of , brings this his bill against C. D., of , and a citizen of the State of , and E. F., of , and a citizen of the State of . And thereupon your orator complains and says that," &c. Amended and made Rule 25 in the revision promulgated November 4, 1912. 25 386 EQUITY RULES ADOPTED 1842 [Rules XXI-XXIII Rule XXI — What Bill may Omit and What Stale > The plaintiff, in his bill, shall be at liberty to omit, at his option, the part which is usually called the common con- federacy clause of the bill, averring a confederacy between the defendants to injure or defraud the plaintiff; also what is commonly called the charging part of the bill, setting forth the matters or excuses which the defendant is supposed to intend to set up by way of defense to the bill; also what is commonly called the jurisdiction clause of the bill, that the acts complained of are contrary to equity, and that the defendant is without any remedy at law; and the bill shall not be demurrable therefor. And the plaintiff may, in the narrative or stating part of his bill, state and avoid, by counter-averments, at his option, any matter or thing which he supposes will be insisted upon by the defendant by way of defense or excuse to the case made by the plaintiff for relief. The prayer of the bill shall ask the special relief to which the plaintiff supposes himself entitled, and also shall contain a prayer for general relief; and if an injimction, or a writ of ne exeat regno, or any other special order, pending the suit, is required, it shall also be specially asked for. Covered by Rule 25 in the revision promulgated November 4, 1912. Rule XXII — Parties out of Jurisdiction If any persons, other than those named as defendants in the bill, shall appear to be necessary or proper parties thereto, the bill shall aver the reason why they are not made parties, by showing them to be without the jurisdiction of the court, or that they cannot be joined without ousting the jm-isdiction of the court as to the other parties. And as to persons who are without the jurisdiction and may properly be made par- ties, the bill may pray that process may issue to make them parties to the bill if they should come within the jurisdiction. Covered by Rule 25 in the revision promulgated November 4, 1912. Rule XXIII — Prayer for Process The prayer for process of subpoena in the bill shall contain the names of all the defendants named in the introductory Rules XXIV-XXVI] EQUITY RULES ADOPTED 1842 387 part of the bill, and if any of them are known to be infants under age, or otherwise under guardianship, shall state the fact, so that the court may take order thereon, as justice may require upon the return of the process. If an injunction, or a writ of ne exeat regno, or any other special order, pending the suit, is asked for in the prayer for relief, that shall be suffi- cient, without repeating the same in the prayer for process. Abrogated by the revision promulgated November 4, 1912. Rule XXIV — Signature of Counsel to Bill Every bill shall contain the signature of coimsel annexed to it, which shall be considered as an affirmation on his part that, upon the instructions given to him and the case laid before him, there is good ground for the suit, in the manner in which it is framed. Amended and made Rule 24 in the revision promulgated November 4, 1912. Rule XXV — Limitation of Taxable Costs In order to prevent unnecessary costs and expenses, and to promote brevity, succinctness, and directness in the allega- tions of bills and answers, the regular taxable costs for every bill and answer shall in no case exceed the sum which is al- lowed in the State court of chancery in the district, if any there be; but if there be none, then it shall not exceed the sum of three dollars for every bill or answer. Abrogated by the revision promulgated November 4, 1912. Rule XXVI — Scandal and Impertinence in Bills Every bill shall be expressed in as brief and succinct terms as it reasonably can be, and shall contain no uimecessary recitals of deeds, documents, contracts, or other instruments, in hcBC verba, or any other impertinent matter, or any scan- dalous matter not relevant to the suit. If it, does, it may, on exceptions, be referred to a master, by any judge of the court, for impertinence or scandal; and if so found by him, the matter shall be expunged at the expense of the plaintiff, and he shall pay to the defendant all his costs in the suit up to that time, unless the court or a judge thereof shall otherwise order. 388 EQUITY RULES ADOPTED 1842 [Rules XXVlI, XXVIII If the master shall report that the bill is not scandalous or impertinent, the plaintiff shall be entitled to all costs occa- sioned by the reference. Abrogated by Rules 21 and 81 in the revision promulgated November 4, 1912. Rule XXVII — Exceptions for Scandal and Impertinence No order shall be made by any judge for referrmg any bill, answer, or pleading, or other matter or proceeding, depending before the court, for scandal or impertinence, unless excep- tions are taken in writing and signed by counsel, describing the particular passages which are considered to be scandalous or impertinent; nor unless the exceptions shall be filed on or before the next rule-day after the process on the bill shall be returnable, or after the answer or pleading is filed. And such order, when obtained, shall be considered as abandoned, im- less the party obtaining the order shall, without any un- necessary delay, procure the master to examine and report for the same on or before the next succeeding rule-day, or the master shall certify that further time is necessary for him to complete the examination. Abrogated by Rules 21 and 81 in the revision promulgated November 4, 1912. Rule XXVIII — Amendment of Bills The plaintiff shall be at liberty, as a matter of course, and without payment of costs, to amend his bill, in any matters whatsoever, before any copy has been taken out of the clerk's office, and in any small matters afterwards, such as filing blanks, correcting errors of dates, misnomer of parties, mis- description of premises, clerical errors, and generally in matters of form. But if he amend in a material point (as he may do of course) after a copy has been so taken, before any answer or plea or demurrer to the bill, he shall pay to the defendant the costs occasioned thereby, and shall, without delay, furnish him a fair copy thereof, free of expense, with suitable references to the places where the same are to be inserted. And if the amendments are numerous, he shall furnish, in like manner, to the defendant, a copy of the whole Rules XXIX-XXXI] EQUITY RULES ADOPTED 1842 389 bill as amended; and if there be more than one defendant, a copy shall be furnished to each defendant affected thereby. Amended and made Rule 28 in the revision promulgated November 4, 1912. Rule XXIX — Amendments by Order of Court After an answer, or plea, or demurrer is put in, and before replication, the plaintiff may, upon motion or petition, with- out notice, obtain an order from any judge of the court to amend his bill on or before the next succeeding rule-day, upon payment of costs or without payment of costs, as the court or a judge thereof may in his discretion direct. But after repli- cation filed, the plaintiff shall not be permitted to withdraw it and to amend his bill, except upon a special order of a judge of the court, upon motion or petition, after due notice to the other party, and upon proof by affidavit that the same is not made for the purpose of vexation or delay, or that the matter of the proposed amendment is material, and could not with reasonable diligence have been sooner introduced into the bill, and upon the plaintiff's submitting to such other terms as may be imposed by the judge for speeding the cause. Amended and made Rule 28 in the revision promulgated November 4, 1912. Rule XXX — When Order Deemed Abandoned If the plaintiff so obtaining any order to amend his bill after answer, or plea, or demurrer, or after repHcation, shall not file his amendments or amended bill, as the case may require, in the clerk's office on or before the next succeeding rule-day, he shall be considered to have abandoned the same, and the cause shall proceed as if no application for any amendment had been made. Abrogated by the revision promulgated November 4, 1912. Rule XXXI — Demurrers and Pleas No demurrer or plea shall be allowed to be filed to any bill, imless upon a certificate of counsel, that in his opinion it is weir founded in point of law, and supported by the affidavit 390 EQUITY RULES ADOPTED 1842 [Rules XXXII-XXXIV of the defendant; that it is not interposed for delay; and, if a plea, that it is true in point of fact. Abrogated by the revision promulgated November 4, 1912. Rule XXXII — May Demur to Part, Plead to Part and Answer to Part The defendant may at any time before the bill is taken for confessed, or afterward with the leave of the court, demur or plead to the whole bill, or to part of it, and he may demur to part, plead to part, and answer as to the residue; but in every case in which the bill specially charges fraud or combination, a plea to such part must be accompanied with an answer fortifying the plea and explicitly denying the fraud and com- bination, and the facts on which the charge is founded. Abrogated by the revision promulgated November 4, 1912. Rule XXXIII — Argument on Plea The plaintiff may set down the demurrer or plea to be argued, or he may take issue on the plea. If, upon an issue, the facts stated in the plea be determined for the defendant, they shall avail him as far as in law and equity they ought to avail him. Abrogated by the revision promulgated November 4, 1912. Rule XXXIV — Costs on Demurrer Overruled If, upon the hearing, any demurrer or plea is overruled, the plaintiff shall be entitled to his costs in the cause up to that period unless the court shall be satisfied that the defendant had good ground, in point of law or fact, to interpose the same, and it was not interposed vexatiously or for delay. And, upon the overruling of any plea or demurrer, the defendant shall be assigned to answer the bill, or so much thereof as is covered by the plea or demurrer, the next suc- ceeding rule-day, or at such other period as, consistently with justice and the rights of the. defendant, the same can, in the judgment of the court, be reasonably done; in default whereof, the bill shall be taken against him pro confesso, and the matter thereof proceeded in and decreed accordingly. Abrogated by the revision promulgated November 4, 1912. Rules XXXV-XXXIX] EQUITY RULES ADOPTED 1842 391 Rule XXXV — Costs on Demurrer Allowed If, upon the hearing, any demurrer or plea shall be allowed, the defendant shall be entitled to his costs. But the court may, in its discretion, upon motion of the plaintiff, allow him to amend his bill, upon such terms as it shall deem reasonable. Abrogated by the revision promulgated November 4,1912. Rule XXXVI — Demurrer, Sufficiency of No demurrer or plea shall be held bad and overruled upon argument, only because such demurrer or plea shall not cover so much of the bill as it might by law have extended to. Abrogated by the revision promulgated November 4, 1912. Rule XXXVTI — Demurrer to Part of Matter Answered or Met by Plea No demurrer or plea shall be held bad and overruled upon argument, only because the answer of the defendant may extend to some part of the same matter as may be covered by such demurrer or plea. Abrogated by the revision promulgated November 4, 1912. Rule XXXVIII — Failure to Reply or Set Down Plea or Demurrer If the plaintiff shall not reply to any plea, or set down any plea or demurrer for argument on the rule-day when the same is filed, or on the next succeeding rule-day, he shall be deemed to admit the truth and sufficiency thereof, and his bill shall be dismissed as of course, unless a judge of the court shall allow him further time for that purpose. Abrogated by the revision promulgated November 4, 1912. Rule XXXIX— Answers The rule, that if a defendant submits to answer he shall answer fully to all the matters of the bill, shall no longer apply in cases where he might by plea protect himself from such an- swer and discovery. And the defendant shall be entitled in all cases by answer to insist upon all matters of dof ense (not 392 EQUTTY RUIiES ADOPTED 1842 [Ruk XL being matters of abatement, or to the character of the parties, or matters of form) in bar of or to the merits of the bill, of which he may be entitled to avail himself by a plea in bar; and in such answer he shall not be compellable to answer any- other matters than he would be compellable to answer and discover upon filing a plea in bar and an answer in support of such plea, touching the matters set forth in the bill to avoid or repel the bar or defense. Thus, for example, a bona fide purchaser, for a valuable consideration without notice, may set up that defense by way of answer instead of plea, and shall be entitled to the same protection, and shall not be compellable to make any further answer or discovery of his title than he would be in any answer in support of such plea. Covered by Rule 30 in the revision piomulgated November i, 1912. Rule XL — When Defendant not Bound to Answer Charge of Bill A defendant shall not be boimd to answer any statement or charge in the bill, unless specially and particularly interro- gated thereto; and a defendant shall not be bound to answer any interrogatory in the bill, except those interrogatories which such defendant is required to answer; and where a defendant shall answer any statement or charge in the bill to which he is not interrogated, only by stating his ignorance of the matter so stated or charged, such answer shall be deemed impertinent. Covered by Rule 30 in the revision promulgated November 4. 1912. ^ December Term, 1850 Ordered, That the fortieth rule, heretofore adopted and pro- mulgated by this court as one of the rules of practice in suits in equity in the Circuit Courts, be, and the same is hereby, repealed and annulled. And it shall not hereafter be neces- sary to interrogate a defendant specially and particularly upon any statement in the bill, unless the complainant desires to do so, to obtain a discovery. Covered by Rules 30 and B8 in the revision promulgated November i, 1912. Rules XLI, XLII] equity rules adopted 1842 393 Rule XLI — Interrogatories to be Numbered The interrogatories contained in the interrogating part of the bill shall be divided as conveniently as may be from each other and numbered consecutively 1, 2, 3, etc.; and the interrogatories which each defendant is required to answer shall be specified in a note at the foot of the bill, in the form or to the effect following, that is to say: "The defendant (A. B.) is required to answer the interrogatories numbered respectively 1, 2, 3," etc., and the office copy of the bill taken by each defendant shall not contain any interrogatories except those which such defendant is so required to answer, unless such defendant shall require to be furnished with a copy of the whole bill. CoTeied by Rule 58 in the revisjon prothjjlgated November 4, 1912 December Term, 1871 Amendment to 41st Equity Rule If the complainant, in his bill, shall waive an answer under oath, or shall only require an answer under oath with regard to certain specified interrogatories, the answer of the defend- ant, though under oath, except such part thereof as shall be directly responsive to such interrogatories, shall not be evidence in his favor, unless the cause be set down for hearing on bill and answer only; but may nevertheless be used as an affidavit, with the same effect as heretofore, on a motion to grant or dissolve an injunction, or on any other incidental motion in the cause; but this shall not prevent a defendant from becoming a witness in his ,own behalf imder sec. 3 of the Act of Congress of July 2, 1864. Promulgated May 6, 1872, 13 Wall. IX. Abrogated by the reviaion promulgated November 4, 1912. Rule XLII — Specifying Interrogatories The note at the foot of the bill, specifying the interroga- tories which each defendant is required to answer, shall be considered and treated as part of the bill, and the addition of any such note to the bill, or any alteration in or addition 394 EQUITY RULES ADOPTED 1842 [Rules XLIII-XLV to such note, after the bill is filed, shall be considered and treated as an amendment of the bill. Abrogated by the revision- promulgated November 4, 1912. Rule XLIII — Form of Bill Preceding Interrogating Part Instead of the words of the bill now in use, preceding the interrogating part thereof, and beginning with the words "To the end therefore," there shall hereafter be used words in the form or to the effect following: "To the end, therefore, that the said defendants may, if they can, show why your orator should not have the relief hereby prayed, and may, upon their several and respective corporal oaths, and accord- ing to the best and utmost of their several and respective knowledge, remembrance, information, and belief, full, true, direct, and perfect answers make to such of the several interrogatories hereinafter numbered and set forth, as by the note hereunder written they are respectively required to answer; that is to say — "1. Whether, &c. "2. Whether, &c." Abrogated by the revision promulgated November 4, 1912. Rule XLIV — What Interrogatories Need not be Answered A defendant shall be at liberty, by answer, to decline answering any interrogatory, or part of an interrogatory, from answering which he might have protected himself by demur- rer; and he shall be at liberty so to decline, notwithstanding he shall answer other parts of the bill from which he might have protected himself by demurrer. Abrogated by the revision promulgated November 4, 1912. Rule XLV — No Special Replication No special replication to any answer shall be filed. But if any matter alleged in the answer shall make it necessary for the plaintiff to amend his bill, he may have leave to amend the same with or without the payment of costs, as the court, or a judge thereof, may in his discretion direct. Abrogated by the revision ^lromulgated Novetabcr 4, 1912. Rules XLVI-XLIX] equity rules adopted 1842 395 Rule XL VI — New or Supplemental Answer In every case where an amendment shall be made after answer filed, the defendant shall put in a new or supple- mental answer on or before the next succeeding rule-day after that on which the amendment or amended bill is filed, unless the time is enlarged or otherwise ordered by a judge of the court; and upon his default, the like proceedings may be had as in cases of an omission to put in an answer. Same as Rule 32 in the revision promulgated N'ovember 4, 1912. Rule XL VII— Parties to Bills In all cases where it shall appear to the court that persons, who might otherwise be deemed necessary or proper parties to the suit, cannot be made parties by reason of their being out of the jurisdiction of the court, or incapable otherwise of being made parties, or because their joinder would oust the jurisdiction of the court as to the parties before the court, the court may, in its discretion, proceed in the cause without making such persons parties; and in such cases the decree shall be without prejudice to the rights of the absent parties. Same as Rule 39 in the revision promulgated November 4, 1912. Rule XLVIII — When Parties Numerous Where the parties on either side are very numerous, and cannot, without manifest inconvenience and oppressive de- lays in the suit, be all brought before it, the court in its discretion may dispense with making all of them parties, and may proceed in the suit, having sufficient parties before it to represent all the adverse interest of the plaintiffs and the defendants in the suit .properly before it. But, in such cases, the decree shall be without prejudice to the rights and claims of all the absent parties. Abrogated by the revision promulgated November 4, 1912. Rule XLIX — Trustees, etc., as Parties In all suits concerning real estate which is vested in trustees by devise, and such trustees are competent to sell and give discharges for the proceeds of the sale, and for the rents and 396 EQUITY RULES ADOPTED 1842 [Rules L-LII profits of the estate, such trustees shall represent the persons beneficially mterested in the estate, or the proceeds, or the rents and profits, in the same manner and to the same extent as the executors or administrators in suits concerning personal estate represent the persons beneficially interested in such personal estate; and in such cases it shall not be necessary to make the persons beneficially interested in such real estates, or rents and profits, parties to the suit; but the court may, upon consideration of the matter on the hearing, if it shall so think fit, order such persons to be made parties. Covered by Rule 37 in the revision promulgated November 4, 1912, Rule L — When Heir at Law not Necessary Party In suits to execute the trusts of a will, it shall not be neces- sary to make the heir at law a party; but the plaintiffs shall be at liberty to make the heir at law a party where he desires to have the will established against him. Same as Rule 41 in the revision promulgated November 4, 1912. Rule LI — Joint and Several Debtors In all cases in which the plaintiff has a joint and several demand against several persons, either as principals or sureties, it shall not be necessary to bring before the court as parties to a suit concerning such demand all the persons liable thereto; but the plaintiff may proceed against one or more of the persons severally liable. Same as Rule 42 in the revision promulgated November 4, 1912. Rule LII — Answer Suggesting Defect of Want of Parties Where the defendant shall, by his answer, suggest that the bill is defective for want of parties, the plaintiff shall be at liberty, within fourteen days after answer filed, to set down the cause for argument upon that objection only; and the purpose for which the same is so set down shall be notified by an entry, to be make in the clerk's order-book, in the form or to the effect following (that is to say) : " Set down upon the defendant's objection for want of parties." And where the plaintiff shall not so set down his cause, but shall proceed Rules LIII-LV] equity rtJles Adopted 1842 §97 therewith to a hearing, notwithstanding an objection for want of parties taken by the answer, he shall not, at the hearing of the cause, if the defendant's objection shall then be allowed be entitled as of course to an order for liberty to amend his bill by adding parties. But the court, if it thinks fit, shall be at liberty to dismiss the bill. Amended and made Rule 43 in the revision promulgated November 4, 1912. Rule LIII — Defect of Parties Suggested at Hearing If a defendant shall, at the hearing of a cause, object that a suit is defective for want of parties not having by plea or answer taken the objection, and therein specified by name or description of parties to whom the objection applies, the court (if it shall think fit) shall be at liberty to make a decree saving the rights of the absent parties. Same as Rule 44 in the revision promulgated November 4, 1912. Rule LIV — Nominal Parties to Bills Where no accoimt, pajonent, conveyance, or other direct relief is sought against a party to a suit, not being an infant, the party, upon service of the subpoena upon him, need not ap- pear and answer the bill, unless the plaintiff specially requires him so to do by the prayer of his bill; but he may appear and answer at his option; and if he does not appear and an- swer he shall be bound by all the proceedings in the cause. If the plaiatiff shall require him to appear and answer he shall be entitled to the costs of all the proceedings against him unless the court shall otherwise direct. Same aa Rule 40 in the revision promulgated November 4, 1912 Rule LV — Injunctions Whenever an injunction is asked for by the bill to stay pro- ceedings at law, if the defendant do not enter his appearance and plead, demur, or answer to the same within the time pre- scribed therefor by these rules, the plaintiff shall be entitled as of course, upon motion, without notice, to such injunction. But special injunctions shall be grantable only upon due notice to the other party by the court in term, or by a judge 398 EQUITY tlULES ADOPTED 1842 [Rules LVl, LVII thereof in vacation, after a hearing, which may be ex parte, if the adverse party does not appear at the time and place ordered. In every case where an injunction — either the com- mon injunction or a special injunction — is awarded in vaca- tion, it shall, unless previously dissolved by the judge grant- ing the same, continue until the next term of the court, or until it is dissolved by some other order of the court. Covered by Rule 73 in the revision promulgated November 4, 1912. Rule LVI — Bills of Revivor and Supplemental Bills Whenever a suit in equity shall become abated by the death of either party, or by any other event, the same may be revived by a bill of revivor or a bill in the nature of a bill of revivor, as the circumstances of the case may require, filed by the proper parties entitled to revive the same, which bill may be filed in the clerk's office at any time; and, upon suggestion of the facts, the proper process of subpoena shall, as of course, be issued by the clerk, requiring the proper representatives of the other party to appear and show cause, if any they have, why the cause should not be revived. And if no cause shall be shown at the next rule-day which shall occur after fourteen days from the time of the service of the same process, the suit shall stand revived, as of course. Amended and made Rule 45 in the revision promulgated November 4, 1912. Rule LVII — Supplemental Bill Whenever any suit in equity shall become defective from any event happening after the filing of the bill (as, for example, by change of interest in the parties), or for any other reason a supplemental bill, or a bill in the nature of a supplemental bill, may be necessary to be filed in the cause, leave to file the same may be granted by any judge of the court on any rule- day upon proper cause shown and due notice to the other party. And if leave is granted to file such supplemental bill, the defendant shall demur, plead, or answer thereto on the next succeeding rule-day after the supplemental bill is filed in the clerk's office, unless some other time shall be assigned by a judge of the court. Covered by Rule 34 in the revision promulgated November 4, 1912. Rules LVni-LXI] EQXriTY EULES ADOPTED 1842 399 Rule LVIII — Omissions Allowed It shall not be necessary in any bill of revivor or supple- mental bill to set forth any of the statements in the original suit, vmless the special circumstances of the case may require it. Same as Kul6 35 in the reviaion promulgated November 4,1912. s Rule LIX — Answers Every defendant may swear to his answer before any jus- tice or judge of any court of the United States, or before any commissioner appointed by any Circuit Court to take testi- mony or depositions, or before any master in chancery ap- pointed by any Circuit Court, or before any judge of any court of a State or Territory, or before any notary public. Covered by Rule 36 in the revision promulgated November 4, 1912. Rule LX — Amendment of Answers After an answer is put in, it may be amended, as of course, in any matter of form, or by filling up a blank, or correcting a date, or reference to a document, or other small matter, and be resworn, at any time before a replication is put in, or the cause is set down for a hearing upon bill and answer. But after replication, or such setting down for a hearing, it shall not be amended in any material matters, as by adding new facts or defenses, or qualifying or altering the original state- ments, except by special leave of the court, or of a judge thereof, upon motion and cause shown, after due notice to the adverse party, supported, if required, by affidavit; and in every case where leave is so granted, the court or the judge granting the same may, in his discretion, require that the same be separately engrossed, and added as a distinct amend- ment to the original answer, so as to be distinguishable therefrom. Covered by Rules 19 and 30 in the revision promulgated November 4, 1912. Rule LXI — Exceptions to Answers After an answer is filed on any rule-day, the plaintiff shall be allowed until the next succeeding rule-day to file in the 400 EQUITY EULES ADOPTED 1842 [Rules LXII-LXIV clerk's office exceptions thereto for insufficiency, and no longer, unless a longer time shall be allowed for the purpose, upon cause shown to the court, or a judge thereof; and, if no exception shall be filed thereto within that period, the answer shall be deemed and taken to be sufficient. Abrogated by Rules 33 and 81 in the revision promulgated November 4, 1912. Rule LXII — Costs on Separate Answers When the same solicitor is employed for two or more defendants, and separate answers shall be filed, or other proceedings had, by two or more of the defendants separately, costs shall not be allowed for such separate answers, or other proceedings, unless a master, upon reference to him, shall certify that such separate answers and other proceedings were necessary or proper, and ought not to have been joined together. Abrogated by the revision promulgated November 4, 1912. Rule LXIII — Exceptions for Insufficiency Where exceptions shall be filed to the answer for insuffi- ciency, within the period prescribed by these rules, if the defendant shall not submit to the same and file an amended answer on the next succeeding rule-day, the plaintiff shall forthwith set them down for a hearing on the next succeeding rule-day thereafter, before a judge of the court, and shall enter, as of course, in the order-book, an order for that pur- pose; and if he shall not so set down the same for a hearing, the exceptions shall be deemed abandoned, and the answer shall be deemed sufficient; provided, however, that the court, or any judge thereof, may, for good cause shown, enlarge the time for filing exceptions, or for answering the same, in his discretion, upon such terms as he may deem reasonable. Abrogated by the revision promulgated November 4,1912. Rule LXIV — Answer After Exceptions Allowed If, at the hearing, the exceptions shall be allowed, the defendant shall be bound to put in a full and complete answer thereto on the next succeeding rule-day; otherwise the Rules LXV-LXVII] equity rules adopted 1842 401 plaintiff shall, as of course, be entitled to take the bill, so far as the matter of such exceptions is concerned, as confessed, or, at his election, he may have a writ of attachment to compel the defendant to make a better answer to the matter of the exceptions; and the defendant, when he is in custody upon such writ, shall not be discharged therefrom but by an order of the court, or of a judge thereof, upon his putting in such answer, and complying with such other terms as the court or judge may direct. Abrogated by the revision promulgated November 4, 1912. Rule LXV — Costs on Exceptions Overruled If, upon argument, the plaintiff's exceptions to the answer shall be overruled, or the answer shall be adjudged insuffi- cient, the prevailing party shall be entitled to all the costs occasioned thereby, unless otherwise directed by the court, or the judge thereof, at the hearing upon the exceptions. Abrogated by the revision promulgated November 4, 1912. Rule LXVI — Replication and Issue Whenever the answer of the defendant shall not be ex- cepted to, or shall be adjudged or deemed sufficient, the plaintiff shall file the general replication thereto on or before the next succeeding rule-day thereafter; and in all cases where the general replication is filed, the cause shall be deemed, to all intents and purposes, at issue, without any rejoinder or other pleading on either side. If the plaintiff shall omit or refuse to file such replication within the prescribed period, the defendant shall be entitled to an order, as of course, for a dismissal of the suit; and the suit shall thereupon stand dis- missed, unless the court, or a judge thereof, shall, upon mo- tion, for cause shown, allow a replication to be filed nunc pro tunc, the plaintiff submitting to speed the cause, and to such other terms as may be directed. Abrogated by Rules 31 and 81 in the revision promulgated November 4, 1912. Rule LXVII — Testimony — How Taken (1) After the cause is at issue, commissions to take testi- mony may be taken out in vacation as well as in term, 26 402 EQUITY RULES ADOPTED 1842 [Rule LXVII jointly by both parties, or severally by either party, upon interrogatories filed by the party taking out the same in the clerk's office, ten days' notice thereof being given to the adverse party to file cross-interrogatories before the issuing of the commission; and if no cross-interrogatories are filed at the expiration of the time the commission may issue ex parte. In all cases the commissioner or commissioners may be named by the court or by a judge thereof; and the presid- ing judge of the court exercising jurisdiction may, either in term time or in vacation, vest in the clerk of the court general power to name commissioners to take testimony. (2) Either party may give notice to the other that he desires the evidence to be adduced in the cause to be taken orally, and thereupon all the witnesses to be examined shall be examined before one of the examiners of the court, or before an examiner to be specially appointed by the court. The examiner, if he so request, shall be furnished with a copy of the pleadings. Such examination shall take place in the presence of the parties or their agents, by their counsel or solicitors, and the witnesses shall be subject to cross-examination and re- examination, all of which shall be conducted as near as may be in the mode now used in common-law courts. The depositions taken upon such oral examination shall be reduced to writing by the examiner, in the form of question put and answer given; provided, that, by consent of parties, the examiner may take doAvn the testimony of any witness in the form of narrative. At the request of either party, with reasonable notice, the deposition of any witness shall, under the direction of the examiner, be taken down either by a skillful stenographer or by a skillful typewriter, as the examiner may elect, and when taken stenographically shall be put into typewriting or other writing; provided, that such stenographer or typewriter has been appointed by the court, or is approved by both parties. The testimony of each witness, after such reduction to writing, shall be read over to him and signed by him in the presence of the examiner and of such of the parties or counsel as may attend; provided, that if the witness shall refuse to Rule LXVII] EQUITY RULES ADOPTED 1842 403 sign his deposition so taken, then the examiner shall sign the same, stating upon the record the reasons, if any, assigned by the witness for such refusal. The examiner may, upon all examinations, state any special matters to the court as he shall think fit; and any question or questions which may be objected to shall be noted by the examiner upon the deposition, but he shall not have power to decide on the competency, materiality, or relevancy of the questions; and the court shall have power to deal with the costs of incompetent, immaterial, or irrelevant depositions, or parts of them, as may be just. (3) In case of refusal of witnesses to attend, to be sworn, or to answer any question put by the examiner, or by counsel or solicitor, the same practice shall be adopted as is now prac- ticed with respect to witnesses to be produced on examination before an examiner of said court on written interrogatories. (4) Notice shall be given by the respective counsel or solicitors to the opposite counsel or solicitors, or parties, of the time and place of the examination, for such reasonable time as the examiner may fix by order in each cause. (5) When the examination of witnesses before the examiner is concluded, the original depositions, authenticated by the signature of the examiner, shall be transmitted by him to the clerk of the court, to be there filed of record, in the same mode as prescribed in sec. 865 of the Revised Statutes. (6) Testimony may be taken on commission in the usual way, by written interrogatories and cross-interrogatories, on motion to the court in term time, or to a judge in vacation, for special reasons, satisfactory to the court or judge. (7) Where the evidence to be adduced in a cause is to be taken orally, as before provided, the court may, on motion of either party, assign a time within which the complainant shall take his evidence in support of the bill, and a time thereafter within which the defendant shall take his evidence in defense, and a time thereafter within which the complainant shall take his evidence in reply; and no further evidence shall be taken in the cause, unless by agreement of the parties or by leave of court first obtained, on motion for cause shown. (8) The expense of the taking down of depositions by a 404 EQUITY RULES ADOPTED 1842 [Rules LXVIII, LXIX stenographer ^.nd of putting them into typewriting or other writing shall be paid in the first instance by the partJ^ calling the witness, and shall be imposed by the court, as part of the costs, upon such party as the court shall adjudge should ultimately bear them. (9) Upon due notice given as prescribed by previous order, the court may, at its discretion, permit the whole, or any specific part, of the evidence to be adduced orally in open court on final hearing. ^ Second, third, fourth, fifth and sixth paragraphs promulgated December Term, 1861, 1 Black. 6, amended October Term, 1890, 139 U. S. 707. Seventh paragraph promulgated December Term, 1869, 9 Wall. VII. Eighth paragraph and the amended 67th Rule promulgated May 2, 1892, 144 U. S. 689. Ninth paragraph promulgated May 15, 1893, 149 V. S. 792. Abrogated by the revision promulgated November 4, 1912. Rule LXVIII — Testimony hy Deposition Testimony may also be taken in the cause,' after it is at issue, by deposition, according to the act of Congress. But in such case, if no notice is given to the adverse party of the time and place of taking the deposition, he shall, upon motion and affidavit of the fact, be entitled to a cross-examination of the witness, either under a commission or by a new deposition taken under the acts of Congress, if a court or judge thereof shall, under all the circumstances, deem it reasonable. Amended and made Rule 54 in the revision promulgated November 4, 1912. Rule LXIX — Time Allowed for Taking Testimony Three months, and no more, shall be allowed for the taking of testimony after the cause is at issue, unless the court, or a judge thereof, shall, upon special cause shown by either party, enlarge the time; and no testimony taken after such period shall be allowed to be read in evidence at the hearing. Immediately upon the return of the commissions and deposi- tions containing the testimony into the clerk's ofl&ce, publica- tion thereof may be ordered in the clerk's office, by any judge of the court, upon due notice to the parties, or it may be enlarged, as he may deem reasonable, under all the circumstances; but, by consent of the parties, publication of the testimony may at any time pass into the clerk's office. Rules LXX-LXXII] EQUITY RULES ADOPTED 1842 405 such consent being in writing, and a copy thereof entered in the order-books, or indorsed upon the deposition or testi- mony. Covered by Rules 47, 55 and 56 in the revision promulgated November 4, 1912. Rule LXX — Testimony De Bene Esse After any bill filed and before the defendant hath answered the same, upon affidavit made that any of the plaintiff's witnesses are aged and infirm, or going out of the country, or that any one of them is a single witness to a material fact, the clerk of the court shall, as of course, upon the application of the plaintiff, issue a commission to such commissioner or commissioners as a judge of the court may direct, to take the examination of such witness or witnesses de bene esse, upon giving due notice to the adverse party of the time and place of taking his testimony. Covered by Rules 47 and 54 in the revision promulgated November 4, 1912, Rule LXXI — Form of the Last Interrogatory The last interrogatory in the written interrogatories to take testimony now commonly in use shall in the future be altered, and stated in substance thus: "Do you know, or can you set forth, any other matter or thing which may be a benefit or ad- vantage to the parties at issue in this cause, or either of them, or that may be material to the subject of this your examina- tion, or the matters in question in this cause? If yea, set forth the same fully and at large in your answer." Abrogated by the revision promulgated November 4, 1912. Rule LICSII— Cross-Bill Where a defendant in equity files a cross-bill for discovery only against the plaintiff in the original bill, the defendant to the original bill shall first answer thereto before the original plaintiff shall be compellable to answer the cross-bill. The answer of the original plaintiff to such cross-bill may be read and used by the party filing the cross-bill at the hearing, in the same manner and under the same restrictions as the answer praying rehef may now be read and used. Covered by Rule 58 in the revision promulgated November 4, 1912. 406 EQUITY RULES ADOPTED 1842 [Rules LXXIII-LXXV Rule LXXIII — Reference to and Proceedings Before Masters Every decree for an account of the personal estate of a testator or intestate shall contain a direction to the master to whom it is referred to take the same to inquire and state to the court what parts, if any, of such personal estate are out- standing or undisposed of, unless the court shall otherwise direct. Abrogated by the revision promulgated November 4, 1912. Rule LXXI V — Reference, Duty of Master Whenever any reference of any matter is made to a master to examine and report thereon, the party at whose instance or for whose benefit the reference is made shall cause the same to be presented to the master for a hearing on or before the next rule-day succeeding the time when the reference was made; if he shall omit to do so, the adverse party shall be at liberty forthwith to cause proceedings to be had before the master, at the costs of the party procuring the reference. Amended and made Rule 59 in the revision promulgated November 4, 1912. Rule LXXV — Time and Notice Upon every such reference, it shall be the duty of the master, as soon as he reasonably can after the same is brought before him, to assign a time and place for proceedings in the same, and to give due notice thereof to each of the parties, or their soUcitors; and if either party shall fail to appear at the time and place appointed, the master shall be at hberty to proceed ex 'parte, or, in his discretion, to adjourn the examina- tion and proceedings to a future day, giving notice to the absent party or his solicitor of such adjournment; and it shall be the duty of the master to proceed with all reasonable diligence in every such reference, and with the least prac- ticable delay, and either party shall be at liberty to apply to the court, or a judge thereof, for an order to the master to speed the proceedings and to make his report, and to certify to the court or judge the reason for any delay. Same as Rule 60 in the revision promulgated November 4, 1912. Rules LXXVI-LXXVIII] EQUITY RULES ADOPTED 1842 407 Rule LXKYI~M aster's Report In the reports made by the master to the court, no part of any state of facts, charge, affidavit, deposition, examination, or answer brought in or used before them shall be stated or recited. But such state of facts, charge, affidavit, deposition, examination, or answer shall be identified, specified, and referred to, so as to inform the court what state of facts, charge, affidavit, deposition, examination, or answer were so brought in or used. Same as Rule 61 in the revision promulgated November 4, 1912. Rule LXXVII — Proceeding Before Master The master shall regulate all the proceedings in every hearing before him, upon every such reference; and he shall have full authority to examine the parties in the cause, upon oath, touching all matters contained in the reference; and also to require the production of all books, papers, writings, vouchers, and other docimients applicable thereto; and also to examine on oath, viva voce, all witnesses produced by the parties before him, and to order the examination of other witnesses to be taken, under a commission to be issued upon his certfficate from the clerk's office or by deposition, accord- ing to the act of Congress, or otherwise, as hereinafter pro- vided; and also to direct the mode in which the matters requiring evidence shall be proved before him; and generally to do all other acts, and direct all other inquiries and proceed- ings in the matters before him, which he may deem necessary and proper to the justice and merits thereof and the rights of the parties. Amended and made Rule 62 in the revision promulgated November 4, 1912. Rule LXKYIIl— Witnesses Witnesses who live within the district may, upon due notice to the opposite party, be summoned to appear before the commissioner appointed to take testimony, or before a master or examiner appointed in any cause, by subpoena in the usual form, which may be issued by the clerk in blank, and filed up by the party praying the same, or by the com- 408 EQUITY RULES ADOPTED 1842 [Rules LXXIX-LXXXI missioner, master, or examiner, requiring the attendance of the witnesses at the time and place specified, who shall be allowed for attendance the same compensation as for attend- ance in court; and if any witness shall refuse to appear or give evidence it shall be deemed a contempt of the court, which being certified to the clerk's office by the commissioner, mas- ter, or examiner, an attachment may issue thereupon by order of the court or of any judge thereof, in the same manner as if the contempt were for not attending, or for refusing to give testimony in the court. But nothing herein contained shall prevent the examination of witnesses viva voce when produced in open court, if the court shall, in its discretion, deem it advisable. Amended and made Rule 52 in the revision promulgated November 4, 1912. Rule LXXIX — Accounts and Accounting All parties accounting before a master shall bring in their respective accounts in the form of debtor and creditor; and any of the other parties who shall not be satisfied with the account so brought in shall be at liberty to examine the accounting party viva voce, or upon interrogatories, in the master's office, or by deposition, as the master shall direct. Same as Rule 63 in the revision promulgated November 4, 1912, Rule LXXX — Affidavits, etc.. Before Master All afiidavits, depositions, and documents which have been previously made, read, or used in the court upon any proceed- ing in any cause or matter may be used before the master. Same as Rule 64 in the revision promulgated November 4, 1912. Rule LXXXI — Examination of Creditor The master shall be at liberty to examine any creditor or other person coming in to claim before him, either upon written interrogatories or viva voce, or in both modes, as the nature of the case may appear to him to require. The evidence upon such examinations shall be taken down by the master, or by some other person by his order and in his Rules LXXXII, LXXXIII] EQUITY RULES ADOPTED 1842 409 presence, if either party requires it, in order that the same may be used by the court if necessary. Same as Rule 65 in the revision promulgated November 4, 1012. Rule LXXXII — Appointment of Masters The Circuit Courts may appoint standing masters in chancery in their respective districts (a majority of all the judges thereof, including the justice of the Supreme Court, the circuit judges, and the district judge for the district, con- curring in the appointment), and they may also appoint a master pro hac vice in any particular case. The compensation to be allowed to every master in chancery for his services in any particular case shall be fixed by the Circuit Court, in its discretion, having regard to all the circumstances thereof, and the compensation shall be charged upon and borne by such of the parties in the cause as the court shall direct. The master shall not retain his report as security for his compensa- tion; but when the compensation is allowed by the court, he shall be entitled to an attachment for the amount against the party who is ordered to pay the same, if, upon notice thereof, he does not pay it within the time prescribed by the court. Amended and made Rule 68 in the revision promulgated November 4, 1912. Rule LXXXIII — Exceptions to Report of Master The master, as soon as his report is ready, shall return the same into the clerk's office, and the day of the return shall be entered by the clerk in the order-book. The parties shall have one month from the time of filing the report to file exceptions thereto; and, if no exceptions are within that period filed by either party, the report shall stand confirmed on the next rule-day after the month is expired. If excep- tions are filed, they shall stand for hearing before the court, if the court is then in session; or, if not, then at the next sitting of the court which shall be held thereafter, by adjournment or otherwise. Amended and made Rule 66 in the revision promulgated November 4, 1912. 410 EQUITY RULES, 1842 [Rules LXXXIV-LXXXVII Rule LXXXIV — Costs on Exceptions And, in order to prevent exceptions to reports from being filed for frivolous causes, or for mere delay, the party whose exceptions are overruled shall, for every exception over- ruled, pay costs to the other party, and for every exception allowed shall be entitled to costs; the cost to be fixed in each case by the court, by a standing rule of the Circuit Court. Amended and made Rule 67 in the revision promulgated November 4, 1912. EuLE LXXXV— Decrees Clerical mistakes in decrees or decretal orders, or errors arising from any accidental slip or omission, may, at any time before an actual enrollment thereof, be corrected by order of the court or a judge thereof, upon petition, without the form or expense of a rehearing. Amended and made Rule 72 in the revision promulgated November 4, 1912. Rule LXXXVI — Decrees not to Contain Pleadings In drawing up decrees and orders, neither the bill, nor answer, nor other pleadings, nor any part thereof, nor the report of any master, nor any other prior proceeding, shall be recited or stated in the decree or order; but the decree and order shall begin, in substance, as follows: "This cause came on to be heard (or to be further heard, as the case may be) at this term, and was argued by counsel; and thereupon, upon consideration thereof, it was ordered, adjudged, and decreed as follows, viz:" [Here insert the decree or order.] Same as Rule 71 in the revision promulgated November 4, 1912. Rule LXXXVII — Guardians and Prochein Amis Guardians ad litem to defend a suit may be appointed by the court, or by any judge thereof, for infants or other persons who are under guardianship, or otherwise incapable to sue for themselves. All infants and other persons so incapable may sue by their guardians, if any, or by their prochein ami; subject, however, to such orders as the court may direct for the protection of infants and other persons. Amended and made Rule 70 in the revision promulgated November 4, 1912. Rules LXXXVIII-XCI] equity rules adopted 1842 411 Rule LXXXVIII — Rehearings Every petition for a rehearing shall contain the special matter or cause on which such rehearing is applied for, shall be signed by counsel, and the facts therein stated, if not ap- parent on the record, shall be verified by the oath of the party or by some other person. No hearing shall be granted after the term at which the final decree of the court shall have been entered and recorded, if an appeal lies to the Supreme Court. But if no appeal lies, the petition may be admitted at any time before the end of the next term of the court, in the discretion of the court. Amended and made Rule 69 in the revision promulgated November 4, 1912. Rule LXXXIX — Circuit Courts may Make Rules The Circuit Courts (a majority of all the judges thereof, including the justice of the Supreme Court, the circuit judges, and the district judge for the district, concurring therein) may make any other and further rules and regulations for the practice, proceedings, and process, mesne and final, in their respective districts, not inconsistent with the rules hereby prescribed, in their discretion, and from time to time alter and amend the same. Amended and made Rule 79 in the revision promulgated November 4, 1912. Rule XC — Practice when Rules do not Apply In all cases where the rules prescribed by this court or by the Circuit Court do not apply, the practice of the Circuit Court shall be regulated by the present practice of the high court of chancery in England, so far as the same may rea- sonably be applied consistently with the local circum- stances and local conveniences of the district where the court is held, not as positive rules, but as furnishing just analogies to regulate the practice. Abrogated by the revision promulgated November 4, 1912. Rule XCI — Affirmation Whenever, under these rules, an oath is or may be required to be taken, the party may, if conscientiously scrupulous of Al2 EQtJllT RULES ADOPTED lS42 [Rules XCII-XCIV taking an oath, in lieu thereof make solemn affirmation to the truth of the facts stated by him. Same as Rule 78 in the revision promulgated November 4, 1912. December Term, 1863 Rule XCII — Balance in Foreclosure Suits Ordered, That in suits in equity for the foreclosure of mort- gages in the Circuit Courts of the United States, or in any court of the Territories having jurisdiction of the same, a decree may be rendered for any balance that may be found due to the complainant over and above the proceeds of the sale or sales, and execution may issue for the collection of the same, as is provided in the eighth rule of this court regulating the equity practice, where the decree is solely for the payment of money. Promulgated April 18, 1864, 1 Wall. VII, after the decision in Orchard v. Hughes, 1 Wall. 77. See Noonan v. Bradley, 67 U. S. 499. Amended and made Rule 10 in the revision promulgated November 4, 1912. October Term, 1878 Rule XCIII — Injunctions When an appeal from a final decree, in an equity suit, granting or dissolving an injunction, is allowed by a justice or judge who took part in the decision of the. cause, he may, in his discretion, at the time of such allowance, make an order suspending or modifying the injunction during the pendency of the appeal, upon such terms, as to bond or otherwise, as he may consider proper for the security of the rights of the opposite party. Promulgated January 13, 1879, 97 V. S. VII. Amended and made Rule 74 in the revision promulgated November 4, 1912. October Term, 1881 Rule XCIV — Bill by Stockholder against Corporation Every bill brought by one or more stockholders in a corpo- ration against the corporation and other parties, founded on rights which may properly be asserted by the corporation, Hule XCIV] EQUITY RULES ADOPTED 1842 413 must be verified by oath, and must contain an allegation that the plaintiff was a shareholder at the time of the transaction of which he complains, or that his share had devolved on him since by operation of law, and that the suit is not a collusive one to confer on a court of the United States jurisdiction of a case of which it would not otherwise have cognizance. It must also set forth with particularity the efforts of the plaintiff to secure such action as he desires on the part of the managing directors or trustees, and, if necessary, of the shareholders, and the causes of his failure to obtain such action. Promulgated January 23, 1882, 104 V. S. IX. Amended and made Rule 27 in the revision promulgated November 4, 1912. ACTS OF COISTG-EESS PERTAINING TO THE JUEISDICTIOJf OF THE DISTRICT COURTS Sec. 291 of the Judicial Cdde, Act approved March 3, 1911, 36 Stat., ch. 231, reads as follows: "Sec. 291: Whenever in any law not embraced within this Act, any reference is made to, or any power or duty is conferred or imposed upon the Circuit Courts, such reference shall upon the taking effect of this Act, be deemed and held to refer to, and to confer such power and impose such duty upon the District Courts." Sec. 968, Rev. Stats. {V. S. Comp. Stats. 1901, p. 702) prescribes: "When, in a Circuit Court, plaintiff in an action at law, originally brought there, or a petitioner in equity, other than the United States recovers less than the sum or value of five hundred doUars, exclusive of costs, in a case which cannot be brought there unless the amount in dispute, exclusive of costs, exceeds said sum or value; or a libellant, upon his own appeal recovers less than the sum or value of three hundred dollars, exclusive of costs, he shall not be allowed, but, at the discretion of the court, may be adjudged to pay costs." Act of Sept. 24, 1789, as amended March 3, 1803, c. 40, sec. 2, 2 Stat. 244. The sum or value of $500 was the limit of jurisdiction of the Circuit Courts when the act was passed. It was increased to $2,000 by the Act of March 3, 1887, c. 373, sec. 2. Authorities upon the Jurisdiction of Federal Courts An action for a tort given by statute of one State may be enforced in the Federal court of another State. The Circuit (District) Courts of the United States are vested with general jurisdiction of civil actions in- volving the requisite pecuniary value between citizens of different States. Interior Construction Co. v. Gibney, 160 U. S. 217-219, 40 L. ed. 401. In a cause brought in New York under a New Jersey statute giving a right of action for death caused by negligence, the court says: "When- ever, by either the common law or the statute law of a State a right of action has become fixed and a legal Uability incurred, that liability 415 416 JURISDICTION OF THE DISTRICT COURTS may be enforced and the right of action pursued in any court which has jurisdiction of such matters and can obtain jurisdiction of the parties. Held, the action being in the nature of a trespass to the person, was transitory and not local and the venue immaterial. Dennick v. Raihoad Co., 103 U. S. 11-18, 26 L. ed. 439. A decree in personam rendered upon service by publication against a person who is not a citizen or resident of the State in which rendered is not a bar to an action in the United States courts upon the same cause of action. Such a judgment will be allowed no force in the courts of another State, and it is of no greater force as against a citizen of another State in a court of the United States, though held within the State in which the judgment was rendered. Hart v. Sanson, 110 U. S. 151-156, 28 L. ed. 101. This country adopted the equitable jurisdiction of the High Court of Chancery of England when the Constitution was framed and it is the jurisdiction exercised by the Federal courts to the present time, saving such modifications as it has undergone through usage and by Acts of Congress and in practice, through the rules adopted by the Supreme Court. McConihay v. Wright, 121 U. S. 201-206, 30 L. ed. 932. The equity jurisdiction of the Federal courts is subject to neither limitation nor restraint by State legislation, and is uniform throughout the different States of the Union. Payne v. Hook, 7 WaU. 425-430, 19 L. ed. 260. In a suit by a minor through his guardian, the jurisdiction of the court is determined by the citizenship of the minor and not that of the guardian. Toledo Traction Co. v. Cameron, 137 Fed. R. 48-52, 69 CCA. 28. A Federal com-t has jurisdiction of an action by a non-resident-against a local administrator and the sureties of a deceased guardian alleging fraud of the guardian, and praying an accounting. Newberry v. Wil- kinson, 199 Fed. R. 673, 118 C C A. 111-118. The probate administration laws of a State are not merely rules of practice for the courts, but laws limiting the rights of parties, to bs observed by the Federal courts in the enforcement of individual rights. Yonley v. Lavender, 21 Wall. 276, 22 L. ed. 536. So far as the administration laws of a State attempt to compel citizens of other States to establish demands against the estate of decedents only by proceedings in the probate court of the State, they are ineffectual. Security Trust Co. v. Black River N. Bk., 187 U. S. 211-231, 47 L. ed. 147. JURISDICTION OF THE DISTRICT COURTS 417 The courts of the United States when exercising jurisdiction over executors and administrators of the estates of decedents within a State are administering the laws of that State, and are bound by the same rules which govern the local tribunals. lb., p. 237. See Aspden v. Nexon, 4 How. 467, 11 L. ed. 1059. The Federal courts have concurrent jurisdiction with the courts of the States to hear and adjudicate claims against the estates of de- ceased persons, between citizens of different States notwithstanding the fact that the States have by their legislation conferred exclusive jurisdiction to adjudge such claims upon a probate or other State court. Schurmeier v. Connecticut Mutual Life las. Co., 137 Fed. R. 42-44, 69 CCA. 22. A claim so adjudicated and estabUshed agaiast an estate by a Fed- eral court must take its place and share in the estate as administered by the State probate court, and cannot be enforced by process directly against the property of the decedent. A distributee, a citizen of an- other State, may, in the Federal court, establish his right to share in the estate, and enforce such adjudication against the administrator personally, or his sureties, or against any other parties subject to liability, or in any other way which does not disturb the possession of the property by the State court. Byers v. MeAuley, 149 U. S. 608- 620, 37 L. ed. 867. A non-resident creditor may get judgment in a Federal court against a resident administrator but must come in on the estate for payment according to the law of the State. Because he has obtained judgment in the Federal court he cannot issue execution and take precedence of other creditors who have no right to sue in the Federal courts. If he do issue execution out of the Federal court and sell lands the sale is void. Yon- ley V. Lavender, 21 WaU. 276. The Federal courts being controlled by the local laws respecting the administration of estates, their jurisdiction in so far as it is exercised, is necessarily concurrent with the probate jurisdiction of the several States, and being concurrent, it follows that the orders and judgments of such probate courts in the due and orderly administration of such estates are conclusive and binding on the Federal courts. Newberry v. Wilkinson, 199 Fed. R. 673, 118 CCA. 111-118. Where on bill filed in the Federal court attacking a sale made under order of the probate court, and praying that deeds made thereunder be declared void and for other relief, an objection that the Federal court was without jurisdiction to make a decree setting aside and vacating the orders of the probate court, Held, if the objection went only to the power of the Federal court to act directly upon the probate court to compel it 27 418 JURISDICTION OF THE DISTRICT COURTS to set aside its orders the position would be well taken, but that the Federal court was bound to give relief according to the general rules of equity the plaintiff being a non-resident, the defendant a resident, and the amount in controversy being over the jurisdictional sum. Arrow- smith V. Gleason, 129 U. S. 86-98, 32 L. ed. 630. Wherever by the law obtaining in a State, customary or statutory suits in equity may be maintained in the courts of such State to set aside the probate of a will, similar suits may be maintained by original process in Federal courts where the requisite diverse citizenship and other requisite conditions exist. Carrau v. O'CaUigan, 125 Fed. R. 657-663, 60 CCA. 347. The general rule established both in England and in this country is that a court of equity will not entertain jurisdiction of a biU to set aside a will or the probate thereof. Broderick's Will, 21 WaU. 503-509, 22 L. ed. 699. The State law authorizing an injunction to restrain an illegal tax levy does not authorize the issuance of an injunction by a Federal court, but if some recognized ground of equity jurisdiction, aside from the mere fact than an injunction is sought, be set up in the bill as in- cidental to the jurisdiction thus shown, the Federal court may enforce an equitable right or remedy given by a State statute. Illinois Life Ins. Co. V. Newman, 141 Fed. R. 449-454. Federal courts of equity have no jurisdiction solely for the purpose of granting an injunction. lb. 454. The fact that a suit prosecuted in a State court, in addition to the enforcement of other matters within the jurisdiction of the State court, seeks the appointment of a receiver of property already in the hands of a receiver appointed by a Federal court, does not authorize the Federal court to enjoin the prosecution of the entire suit in the State court, where such prosecution in no way interferes with the possession of the res in the hands of the receiver, or infringes upon any rights, or jurisdic- tion of the Federal court. Guarantee Trust Co. v. N. Chicago St. R. Co., 130 Fed. R. 801-813, 65 C C A. 65. Sec. 720, Rev. Stats. (U. S. Comp. Stats. 1901, p. 581), must be con- strued to harmonize with other Federal statutes and the Constitution. If the Federal court has jurisdiction of a case by reason of the citizenship or alienage of the parties or otherwise, it can grant relief against the judgment of a State court obtained by fraud or other equitable grounds, in any case in which relief could be granted if the judgment was rendered by a United States court, and in such case a preliminary injunction may be issued against the defendants to prevent the collection of the judg- JUKISDICTION OP THE DISTKICT COURTS 419 ment by execution or otherwise. Lehman ti. Graham, 135 Fed. B. 39-42, 67 C. C. A. 517. Where a plaintiff brought suit in the State court which was removed upon petition of defendant into the Federal court, and then the plain- tiff procured an order of the Federal court dismissing his suit without prejudice to his right to reinstitute the same, and thereafter instituted a new suit in the State court, reducing his demand to a sum below that necessary to give the Federal court jurisdiction. Held, that under sec. 720, Bev. Stats. (U. S. Comp. Stats. 1901, p. 581), the Federal court was prohibited from granting an injunction to stay proceedings in the State court. Texas Cotton Produce Co. v. Stames, 128 Fed. B. 183-184. Where a settler on unsurveyed public lands intending to acquire them under the homestead laws brings a biU to protect his possessory rights under the laws of the United States, Held, there being no averment of diversity of citizenship of the parties, and no provision of any Federal statute presented for construction, and the court not being called upon to construe the Federal Constitution the trial court was without juris- diction. Earhart v. Switzler, 179 Fed. B. 832, 105 CCA. 260. Where no diversity of citizenship was alleged in a biU brougnt lo enjoin another from interfering with the possession of the complainant taken under a subsisting, uncancelled homestead entry, and the biU did not allege that the defendant had possession xmder any claim of right, under the land laws of the United States, Held, the District Court was without jurisdiction, and an allegation in the biU that if possession were restored to Hi'tti on cancellation of his homestead rights he could sell out his valuable improvements did not present a Federal question, such right to sell improvements held by a settler, depending on no Federal statute. Hare v. Birkenfield, 181 Fed. B. 825, 104 CCA. 335. A change of citizenship may be made instantaneously and although this change is made with a view to acquire among other things the right to sue in a Federal court, if the change is in fact made, and with the intention to permanently remain in the new domicil and become thenceforward a citizen of that State, such intent will not defeat the jurisdiction. Such a change is within the lawful rights of the citizens of the several States and such an object makes it neither unlawful nor wrongful. Weemes v. Louisville Water Co., 130 Fed. B. 244. Where the evidence shows that the property was transferred to the plaintiff, a non-resident of the district, for the purpose of bringing the suit, but it appears that the nominal parties are the real parties, and are the bona fide owners, and not merely holding it for the sole and only purpose of enabling them to bring suit in the United States court. 420 JURISDICTION OF THE DISTRICT COURTS the court will not refuse to take jurisdiction. Cole v. Philadelphia & Erie R. Co., 140 Fed. R. 944-946. The privilege of a grantee or a pmchaser of property, being a citizen of one of the States, to invoke the jurisdiction of the Federal court for the protection of his rights as against a citizen of another State, cannot be affected or impaired merely because of the motives that induced his grantor to convey, or his vendor to sell and deliver, the property, provided the sale or conveyance was bona fide, without the grantor or vendor reserving, or having any right or power to compel or require a reconveyance or a return to him of the property in question. Lehigh Mining & Mfg. Co. v. KeUy, 160 U. S. 327-336, 40 L. ed. 444. The fact that as to certain persons and in certain transactions, persons who have proceeded under a general incorporation law to organize a corporation are a corporation de facto, is not enough to confer upon such persons a legal existence as a corporation so as to maintain an action in the Federal courts. Gastonia Cotton Mfg. Co. v. W. L, Wells Co., 128 Fed. B. 369-373, 63 CCA. 111. To entitle a party to removal from a State court under sec. 2 of the Act of 1875 (the same as the second clause in the Act of 1887, sec. 28, Judicial Code), there must exist in the suit a separate and distinct cause of action, in respect to which all the necessary parties on one side are citizens of different States than those on the other. When two or more causes of action are united in one suit there can be removal of the whole suit on the petition of one or more of the plaintiffs or defendants (now only the defendants) interested in the controversy, which if it had been sued on alone would be removable. Geer v. Mathieson AlkaU Works, 190 U. S. 428-432, 47 L. ed. 11-25. Separate and distinct causes of action disclosed by the record in a single suit, upon either of which a separate suit could have been main- tained, and the determination of neither of which is essential to the disposition of the other, constitute separate controversies, within the meaning of the acts of Congress. Boatman's Bank v. Fritzlen, 135 Fed. 5.650,68 CCA. 288. Where the only rational inference from the pleadings and the record is that an improper party or a sham cause of action has been injected into a suit for the sole purpose of defeating the jurisdiction of the Federal court over the real controversy, pleading and evidence to that effect aliunde are neither indispensable or necessary; the court has the power and the duty to find from the record alone the attempted fraud and to prevent its perpetration. In a determination of the jiu-isdiction of the Federal courts and the right to remove causes of action to them, the court will consider only indispensable parties, because all other JURISDICTION OF THE DISTRICT COURTS 421 parties may be dismissed and disregarded if their presence would pust or restrict the jurisdiction or the right. /6.658. Where two or more causes of action are joined in one suit, to entitle any of the parties to a removal, the case must be one capable of separar tion into parts, so that in one of the parts the controversy would be presented with citizens of one or more States on one side, and citizens of other States on the other, which can be fully determined without the presence of any of the other parties to the suit as begun. Fraser V. Genesen, 106 U. S. 191-194, 27 L. ed. 131. The position assigned to parties in a suit by a pleader are immaterial in determining whether a cause may be removed from a State court. It is the duty of a Federal court to ascertain the real matter in dispute and to arrange the parties on opposite sides of it according to the facts of their respective interests, and then to determine whether or not a controversy exists between citizens of different States which invokes the jurisdiction of that court. Evers ti. Watson, 156 U. S. 627-532, 39 L. ed. 520. Action was brought in the State court by the plaintiff, a citizen of another State, against the defendant, also a citizen of a State other than that in which the suit was brought, who filed a petition and bond and secured removal of the cause into the United States court on the ground of diversity of citizenship; the plaintiff then moved to remand to the State court because neither of the parties were residents or citizens of the State in which the suit was brought. Held, that the privilege given the defendant as to the place of suit by the Act of Aug. 13, 1888, providing that when jurisdiction is founded on diverse citizen- ship, suits shall be brought only in the district of the residence of the plaintiff or defendant may be waived; that the Circuit (District) Courts have jurisdiction over controversies between citizens of different States where neither plaintiff nor defendant resides in the district in which the court is held. Burch v. Southern Pacific Co., 139 Fed. B. 350, decided June 24, 1905. Note. The opinion in this case states that the question has never been directly passed upon by the Supreme Court of the United States, but the learned judge was in error, as on May 16, 1902, it was an- nounced by that court that an original suit between citizens of differ- ent States, where the jurisdiction is founded only on diversity of citizen- ship, must be brought in the State in which one is a citizen, and in the district therein of which he is an inhabitant and resident. Shaw V. Quincy Min. Co., 145 U. S. 444-449, 36 L. ed. 768. To come within the provisions of sec. 8 of the Act of Mar. 3, 1875 (sec. 57, Judicial Code), allowing non-resident defendants to be brought 422 JURISDICTION OF THE DISTRICT COURTS in by publication, the suit must really be one in rem, directed primarily against specific property for the purpose of enforcing a legal or equitable lien upon, or claim to such property, or removing an encumbrance or lien or cloud upon the title to such property, located within the district. Jones V. Gould, 141 Fed. B. 698-700. The stock of a corporation organized under the laws of a State has its situs in that State within the meaning of sec. 8 of the Act of Mar. 3, 1875 (sec. 67, Judicial Code). lb. The lien mentioned in the act means a lien or title existing anterior to the suit, and not one caused by the suit itself. Dormitzer v. IIU- nois, etc.. Bridge Co., 6 Fed. R. 217-218. A promissory note held by a defendant residing in Ihe State where suit is brought is personal property within the meaning of the Act of Mar. 3, 1875, c. 137, sec. 8 (sec. 57, Judicial Code), in a suit in equity brought to enjoin prosecution of an action at law on the note and have the same cancelled and delivered up to complainant. Manning v. Burdan, 132 Fed. E. 382-386. Such a suit is not ancillary so as to give the court jurisdiction over a non-resident corporation, one of the defendants in the equity suit, but not a party to the action at law. lb. 385. Where the Circuit Court has jurisdiction over the parties to a suit for the winding up of a corporation in which suit a receiver is ap- pointed, any suit by or against such receiver for the collection of the assets or the defense of the property rights of such corporation is ancillary to the main suit and as such cognizable in the Federal courts, regardless either of the citizenship of the parties or the amount in controversy. White v. Ewing, 159 U. S. 36-39, 40 L. ed. 67. Where the suit is ancillary to a suit of which the Federal com't has properly taken jurisdiction the court does not look either to the citizen- ship of the parties to the ancillary suit nor to any other peculiar matter affecting its jurisdiction. It may be a case altogether devoid of the requirements necessary to give jurisdiction to an original biU. Pope v. Louisville & N. R. R. Co., 173 U. S. 673, 43 L. ed. 814. A suit in equity dependent upon a former suit of which the Federal court has jurisdiction, may be maintained in the absence of a Federal question and of diversity of citizenship. (1) To aid, enjoin, or regulate the original suit. (2) To restrain, avoid, explain, or enforce the judg- ment or decree therein. (3) To enforce or obtain an adjudication of liens upon, or claims to, property in the custody of the court in the original suit. In all these cases the suit is but a continuation of the JURISDICTION OF THE DISTRICT COURTS 423 original suit. Campbell v. Golden Cycle Min. Co., 141 Fed. R. 610-612, 73C, C.l. 260. In the Federal court, when any of the record shows upon its face that there is a controversy as to a jurisdictional fact, the court must require proof to support a finding that it has jurisdiction, or else as- sume that it does not have jurisdiction. Klenk v. Byrne, 143 Fed. B. 1009. The presumption is that the case is without the jurisdiction of the court, xmless the contrary affirmatively appears, and such presump- tion must be controlling when the pleadings make an issue as to any fact essential to the jurisdiction, and there is no evidence to sustain the affirmative allegation of such fact. Oregon R. & Nav. Co. v. Shell, 143 Fed. R. 1004r-1006. The use of the word "controversies" as in contradistinction to the word "cases" and the omission of the word "all" in respect of contro- versies, in sec. 1 of art. 3 of the Constitution, left it to Congress to define the controversies over which the courts it was empowered to ordain and establish might exercise jxnrisdiction, and the manner in which it was to be done. Stevenson v. Fain, 195 U. S. 165, 49 L. ed. 143. Jurisdiction of the Federal courts as to the subject-matter may be limited by Congress in various ways, as to civil and criminal cases, cases at common law or in equity or in admiralty, probate cases, or cases under special statutes, to particular classes of persons, to proceed- ings in particular modes, and so on. In many cases jurisdiction may depend on the ascertainment of facts involving the merits, and in that sense the court exercises jurisdiction in disposing of the preliminary inquiry, although the result may be that it finds that it cannot go farther. And where the court erroneously retains jurisdiction to ad- judicate the merits, its action can be corrected on review. Louisville Trust Company v. Cominger, 184 U. S. 18, 46 L. ed. 416. A corporation incorporated in one State only, and having a usual place of business in another State, cannot be sued in a Circuit (District) Court of the United States held in the latter State by a citizen of a different State. Shaw v. Quincy Mining Co., 145 U. S. 444-449, 36 L. ed. 768. A corporation by doing business or appointing a general agent in a district other than that in which it is created does not waive its right, if reasonably availed of, to insist that a suit should have been brought in the latter district. Southern Pacific Co. v. Denton, 146 U. S. 202, 36L. ed.942. A special appearance for the purpose of objecting to the jurisdiction, 424 JURISDICTION OF THE DISTRICT COURTS and upon such objection being overruled, an answer to the merits will constitute a waiver of the want of jurisdiction for want of requisite citizenship. lb. 206. Where a corporation is incorporated in a State embracing more than one district it cannot be deemed an inhabitant of any district other than that in which are its principal offices. Galveston, ^ etc., R. Co. V. Gonzales, 151 U. S. 496. An aUen must resort to the domicil of the defendant to sue. 76. An ahen, or a foreign corporation, may be sued by a citizen of a State in any district in which valid service of process can be made on the defendant. Galveston, etc., R. Co. v. Gonzales, 151 U. S. 496, 38 L. ed. 248. In re Hohorst, 150 U. S. 653, 37 L. ed. 1211. This though the statutes of the State confer no authority upon any court to issue process against a foreign corporation in an action by a non-resident for a cause of action not arising therein. Barrow Steam- ship Co. V. Kane, 170 U. S. 100, 42 L. ed. 964. A corporation organized in one State cannot remove a suit brought against it in another by a resident of a State other than that in which the action is brought without the consent of the plaintiff. Baldwin v. Pacific Power & Light Co., 199 Fed. B. 291^-294. The rule is otherwise where the plaintiff is an alien. Kalalta v. Rones, 186 Fed. R. 30, 108 CCA. 132. Hdd under a State statute requiring a foreign corporation to file a power of attorney appointing the State auditor to accept service of process, that where a non-resident corporation filed its power of attorney appointing the State auditor its attorney to accept service, but did not appoint any local person its attorney in fact for similar purpose under a statute appUcable to domestic corporations, such foreign corporation's residence for the purpose of suit was not Umited to the county wherein the seat of government was located or where the auditor resided, but it was liable to suit in any Federal District in the State. Lemon v. Im- perial, etc., Co., 199 Fed. R. 927-932. A suit for infringement of a patent-right may be brought in any district where valid service of process on the defendant can be made. In re Keasbey Co., 160 U. S. 221-230, 40 L. ed. 402; In re Hohorst, 150 U. 8. 653, 37 L. ed. 1211; Noonan v. Chester, etc., Co., 75 Fed. R. 334; Allen v. Blunt, 1 Blatchf. 480; Fed. Cases, 215. Where jurisdiction is not challenged by pleading, it is sufficiently shown, if it is disclosed in any part of the record, including the proofs. Mahoning Valley Ry. Co. v. O'Hara, 19p Fed. R. 945, 116 CCA. 495. JURISDICTION OF THE DISTRICT COURTS 425 A Federal court is not limited to the return on the summons or the declaration but may look to the entire record in determining its jurisdic- tion. WyUe, etc., Co. v. Lynch, 195 Fed. B. 386, 115 CCA. 288-302. A railroad commission vested with executive, legislative and quasi judicial powers is not a State court within the meaning of sec. 720, Rev. Stats. {U. S. Comp. Stats. 1901, p. 581), which prohibits any court of the tJnited States from issuing an injunction restraining proceedings in any court of a State. Louisville & N. R. Co. v. Brown, 123 Fed. R. 946- 948. The foreclosure of mechanics' hens is essentially an equitable pro- ceeding and where the State law gives a lien for labor and material and a remedy to enforce it at law or in equity, the Federal courts have jurisdiction of an equitable action. Sheffield Furnace Co. v. Withrow, 149 17. S. 574-579, 37 L. ed. 853. The foreclosure of a mechanic's lien is essentially an equitable pro- ceeding, and such lien may be enforced in a Federal court, notwith- standing the State statute giving the hen prescribed that it might be enforced in a designated State court. Schmulbach v. Caldwell, 196 Fed. B. 16, 115 C C A. 650. Such lien may be enforced in equity notwithstanding the statute creating the lien gave a right of action at law. Healey Ice Maoh. Co. v. Green, 191 Fed. R. 1004, 111 C. C. A. 668. The assignee of an alien cannot bring suit in the Federal court of the State of which he is a citizen against a citizen of another State over the objection of such defendant. The provision of the Act of 1888 (now Clause 1 of sec. 24, Judicial Code) that no Federal court shall take cognizance of any suit to recover the contents of any chose in action in favor of any assignee, unless such suit might have been prosecuted in such court if no transfer had been made must be read with that part of the act (now sec. 51, Judicial Code), which restricted the district in which actions could be prose- cuted to that of the district of the residence of plaintiff or defendant where jurisdiction is founded only on the fact that the action is between citizens of different States. Consolidated Rubber Tire Co. v. Ferguson, 183 Fed. B. 756, 106 CCA. 330. AJl parties on the one or the other side of the controversy must be residents of the district where suit is brought, unless defendants waive the privilege. Greeley v. Lowe, 155 U. S. 58, 39 L. ed. 69. See this case cited and distinguished in 80 Fed. R. 422. The Act of 1887 omitted the clause (found in former acts) allowing a defendant to be sued in the district where he is found. Where juris- 426 JURISDICTION OP THE DISTRICT COURTS diction was founded upon any of the causes specially mentioned in sec. 1 of the Act of Mar. 3, 1887, except the citizenship of the parties, Held, the action must be brought in the district in which the defendant was an inhabitant; but where the jurisdiction was founded solely upon the fact that the parties were citizens of different States the suit might be brought in the district in which either the plaintiff or the defendant resided. McCormick Co. v. Walthers, 134 U. S. 41-43, 33 L. ed. 833. Under the Act of Mar. 3, 1887, Held: the Circuit Court had no jurisdic- tion on the ground of citizenship if there were two plaintiffs citizens of, and residents of, different States, and the defendant was a citizen of, and resident in, a third State, and suit was brought in a State in which one of the plaintiffs resided. Smith v. Lyon, 133 U. S. 316, 33 L. ed. 635. The Act of 1887 omitted the provision of former acts, that if a party has the diverse citizenship required by statute, he may be sued in any district where he may be found. 76. 319. A suit between citizens of different States must be brought in the district where all the plaintiffs or aU the defendants are inhabitants, if there are more than one plaintiff, or more than one defendant. lb. 316. Where the interest is joint each of the persons concerned in that interest must be competent to sue, or liable to be sued, in a Federal court. Strawbridge v. Curtis, 3 Cranch, 267, 2 L. ed. 435. Under the Act of Mar. 3, 1887, as amended in 1888, the Circuit Court had no jurisdiction on the ground of diverse citizenship of a suit brought by residents of other districts than that in which the court was held against several defendants, only one of whom was a resident of that district. Excelsior Pebble Phos. Co. v. Brown, 74 Fed. B. 321-324, 20 C. C. A. 428. Held: The provision of the Act of Mar. 3, 1887, that where jurisdiction is founded only on the facts of diverse citizenship, suit shall be brought only in the district of the residence of either the plaintiff or the defend- ant, did not touch the general jurisdiction of the court over a cause between such parties, but affected only the proceedings taken to bring the defendant within such jurisdiction, and was a matter of personal privilege which the defendant might insist upon or waive. Interior Construction Co. v. Gibney, 160 U. S. 217-219 (40 L. ed. 401), Oct. T., 1895. The right to object that an action within the general jurisdiction of the court is brought in the wrong district is waived by entering a gen- eral appearance, without taking the objection. lb. 220. Where there are several defendants, some of whom are, and some of whom are not, inhabitants of the district in which the suit is brought, the question whether the defendants who are inhabitants of the district JURISDICTION OF THE DISTRICT COURTS 427 Dlay take the objection if the non-residents have not appeared, not decided. 76.220. In this case defendants who had appeared generally filed a plea in abatement that other defendants who had not appeared were not residents of the State where suit was brought, Held, that a demurrer to this plea would lie, because having appeared generally defendants could not object. Rev. Stats., sec. 740 {U. S. Comp. Stats. 1901, p. 587), providing that if there are two or more defendants residing in different districts of the State, the suit may be brought in either district, was not repealed, either expressly nor by implication, by the Acts of 1875 or 1887-1888, providing that no civn suit shall be brought against any person in any other district than that whereof he is an inhabitant. Goddard o. WaiUer, 80 Fed. B. 422-424. Note: This section was repealed by the Judicial Code. Approved iVIarch 3, 1911, but the right was preserved by sec. 52. In local actions defendants who are non-residents of the district where suit is brought might be joined by sec. 8 of Act of 1875, saved by sec. 5 of Act of 1888, making an exception to sec. 1, that no civil suit should be brought in any other district than that of which defendant is an inhabitant. Greeley v. Lowe, 155 U. S. 58-72, 39 L. ed. 69. In local actions any defendant interested in the res may be cited to appear and answer provided he be not a citizen of the same State with the plaintiff. lb. A suit to remove cloud on title to real estate may be maintained ia a district where the land is if the defendant is a citizen of another State. Dick V. Foraker, 155 U. S. 404-411, 39 L. ed. 201. An equitable remedy given by a state statute may be enforced in a Federal court if the right to a jury trial is not impaired. lb. The Circuit (District) Courts are bounded by the limits of the jurisdictional district iu which they sit. Whatever may be their jurisdic- tion over subject-matter as to persons and property it can only be exercised within the limits of their districts. Congress might have authorized civil process from any Circuit (District) Court to run into any State of the Union. It has not done so. Civil processes does not run out of the district with the single exception of a subpcena for witnesses. Process of a Circuit (District) Court cannot be served without the district in which it is established without the special authority of law. Tolland v. Sprague, 12 Pet. 328, 9 L. ed. 1093. Where there is no separable controversy there can be no removal from a State court by the defendants, imless all are citizens of different 428 JURISDICTION OF THE DISTRICT COURTS States from the plaintiff and all join in the petition. Fletcher v. Hamlet, 116 U. S. 408-410, 29 L. ed. 679, Oct. T., 1885. The Supreme Court has no power to review, on appeal or writ of error, an order of the Circuit (District) Court remanding a case to a State court; and such a remanding order not being a final judgment or decree the Act of Feb. 25, 1889 (25 Stat. L. 693), did not give jurisdiction. Lawrence v. Rector, 137 V. S. 139-141, 34 L. ed. 603, Oct. T., 1890. The Act of Mar. 3, 1887 (24 Stat. L. 552), ejspressly prohibited a review of such order. Richmond & D. R. Co. v. Thomson, 134 U. S. 45-46, 33 L. ed. 872, Oct. T., 1889. An order of the Circuit (District) Court allowing an appeal is subject to that court's power as long as the appeal remains unperfected and the cause has not passed into the jurisdiction of the appellate court. Aspen Mining Co. v. BeUings, 150 U. S. 31-35, 37 L. ed. 988. Citing Cases. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, held, when the citizenship necessary for the jurisdiction ap- pears on the face of the record, evidence to contradict the record is not admissible except under a plea in abatement in the nature of a plea to the jurisdiction; a plea to the merits waived the jurisdiction. Farming- ton V. Pillsbury, 114 U. S. 138-143, 29 L. ed. 114. Neither party has the right to introduce evidence not directed to the issues, for the purpose only of making out a case of want of jurisdic- tion. Whenever it appears by pertinent evidence directed to the issues that the court has not cognizance of the suit, either because of its nature or the parties, the court may itself dismiss the suit. Hartog V. Memory, 116 U. S. 588-591, 29 L. ed. 725. If the court is led to suspect that there is collusion to confer juris- diction it may cause inquiry to be made, either by having the proper issue joined or other appropriate way. lb. 691. A State law may give a substantial right of such a character that where there is no impediment arising from the residence of the parties the right may be enforced in the proper Federal tribunal whether it be a court of equity, of admiralty, or of common law. A party forfeits nothing by going in to a Federal tribunal. Jurisdiction having attached, his case is tried there upon the same principles, and its determination is governed by the same considerations as if it had been brought in the proper State tribunal of the same locaUty. Ex parte McNeil, 13 WaU. 236-243, 20 L. ed. 624. A Circuit (District) Court of the United States is not governed in its practice in equity by the laws of the State in which it sits, but by the JURISDICTION OF THE DISTRICT COURTS 429 rules of practice prescribed by the Supreme Court and by the Circuit (District) Court not inconsistent therewith, and when these are silent, by the practice of the High Court of Chancery in England, prevailing when the equity rules were adopted, so far as may reasonably be ap- plied. Pomeroy v. Manin, 2 Paine, 476; Fed. Cases, 11,260. K each of the indispensable adverse parties is not competent to sue or be sued, then the Circuit (District) Court cannot maintain cogni- zance of the suit. Anderson v. Watt, 138 U. S. 694r-702, 34 L. ed. 1078. A suit by an executor or administrator is deemed a controversy be- tween such executor or administrator and the defendants and not be- tween his testate or intestate and defendants. Clarke v. Mathewson, 12 Pet. 161-171, 9 L. ed. 1044; Childrass v. Emery, 8 Wheat. 642-669, 5 L. ed. 711. Executors and administrators deemed to be the real parties in interest so that jurisdiction depends on the citizenship of such representatives and not on that of testator or intestate. It makes no difference that the testator or intestate was a citizen of the same State with the defend- ants and could not, if alive, have sued in the Federal court, neither does it defeat the jurisdiction that the creditors and legatees of the decedent are citizens of the same State with the defendants. Rice Adm., etc., v. Houston Adm., etc., 13 Wall. 66, 20 L. ed. 484; Continental Life Ins. Co. V. Rhoads, 119 U. S. 237, 30 L. ed. 380. The rule where an infant sues is that it is the infant and not the next friend who is the real party. The next friend suing on behalf of the infant is neither technically, nor substantially the party, but resembles an attorney or guardian ad litem. The suit must be brought in the name of the infant. Morgan v. Potter, 157 U. S. 195, 39 L. ed. 670. Where the jurisdiction of the Federal courts depends upon the citizen- ship of the parties it has reference to the parties as persons; the personal citizenship must be set out in the pleading. Amory v. Amoiy, 5 Otto, 186, 24 L. ed. 428. Held in Rice Adm., etc., v. Houston Adm., etc., 13 Wall. 66, 20 L. ed. 484, that in the absence of averments in the pleadings to the contrary the citizenship of an administrator was that of the State where he was appointed. Ccmtra in Continental Life Ins. Co. v. Rhoads, 119 U. S. 237, 30 L. ed. 380, where the court said: "It is true the record does show that letters of admmistration were granted to her in Pennsylvania but that does not make her a citizen of that State. The jurisdiction must appear positively. It is not enough that it may be inferred argumenta- tively." See Anderson v. Watt, 138 U. S. 694, 34 L. ed. 1081. 430 JURISDICTION OF THE DISTRICT COURTS Where the jurisdiction has once attached no subsequent change in interests (such as substitution of plaintiff as an administrator who lacks diverse citizenship) ousts jurisdiction. Clarke v. Mathewson, 12 Pet. 171, 9 L. ed. 1043. Jurisdiction of Federal courts depends not upon the relative situar tion of the parties concerned in interest but upon the relative situation of the parties named on the record. Where trustees suing for others' benefit are personally qualified by their citizenship to sue in the Federal court the jurisdiction is not defeated by the fact that the parties whom they represent may be disqualified. Susquehanna, etc., Ry. v. Blatch- ford, 11 Wall. 172, 20 L. ed. 180. Where the cause of action is transferred to the plaintiff, a citizen of the same State as defendant. Held: it did not oust the jurisdiction previously acquired. Jarboe v. Templer, 38 Fed. B. 206, and Glover v. Sheppard, 21 Fed. R. 481; Contra Adams Executor v. Denver, etc., Co., 16 Fed. R. 712. Where jurisdiction is made out by the averments of the bill, setting up the defense that will be made; if the answer when it comes in, disclaims and denies this defense the basis of jm-isdiction fails. Boston & M., etc., Co. V. Montana, etc., Co., 188 U. S. 643, 47 L. ed. 626. Plaintiff cannot anticipate the defense by defendant and thus make a Federal question. Fla. C. & P. Ry. i>. Bill, 176 U. S. 321, 44 L. ed. 436. No local State statutes can impair the power of the United States courts to enforce the settled principles of equity in suits in which they have fuU jurisdiction; applied to local statute of limitations. Kirby v. Lake Shore R. Co., 120 U. S. 130, 30 L. ed. 572. Where a cause is removed from a State court by defendant he cannot move to dismiss for want of jurisdiction. He is in court by his own act and suit is to proceed as if brought by original process where the defend- ant had waived all objection to the jurisdiction and pleaded to the merits. BushneU v. Kenedy, 9 Wall. 387, 19 L. ed. 739. Cases cited as to when the assignee of a chose in action may sue. 76. In removal proceedings the petition and bond for removal are in the nature of process. Kinney v. Columbia S. & L. Association, 191 U. S. 82, 48 L. ed. 105. EXILES OF PEAOTIOE FOR THE COURTS OF EQUITY OF THE UNITED STATES Pronmlgated by the Supreme Court of the United States, November 4, 1912. Decisions The Supreme Court cannot, by rule, enlarge or restrict the inherent jurisdiction and powers of the other courts of the United States. Hud- son V. Parker, 156 U. S. 284, 39 L. ed. 426. The Supreme Court may not adopt rules making decrees for pay- ment of money a hen on land where no such charge is created by law, nor displace such statutory right. Ward v. Chamberlain, 2 Black (67 U. S.) 436, 17 L. ed. 322, where Beers v. Haughton, 9 Pet. 360, 9 L. ed. 157 is distinguished. The Supreme Court is not authorized to adopt by rule any State law repugnant to the enactments of Congress. Keary v. The Farmers', etc.. Bank, 16 Pet. (41 U. S.) 94, 10 L. ed. 899. No practice or rule of the Circuit (District) Courts inconsistent pr in conflict with the rules prescribed by the Supreme Court can control them. Bank, etc., v. White, 8 Pet. (33 U. S.) 269, 8 L. ed. 262; Story v. Livingston, 13 Pet. 368, 10 L. ed. 339; Gaines v. Relf, 15 Pet. 15; 10 L. ed. 9; Gray v. Chicago, etc., Co., Woolw. 63; 10 Fed. Cases, 5,713. The Circuit (District) Court may not dispense with a rule prescribed by the Supreme Court, nor any prescribed by statute. Wallace v. Clark, 3 Woodb. & M. 359; 29 Fed. Cases, 17,098. The rules having been promulgated under authority of an act of Congress have the force of statutory regulation. Winter v. Ludlow, 16 Leg. Int. 332-340; Fed. Cases, 17,891. The rules prescribed by the Supreme Court, in equity and admiralty, have all the force and effect of statutes of the United States. Stevens V. Missouri, K. & T. R. Co., 104 Fed. B. 935. 431 432 EQUITY RULES The rules prescribed were not intended to deprive the Circuit (Dis- trict) Court of power to mould its rules relating to the time and manner of appearing and answering by the exercise of sound discretion, to pre- vent injustice in the operation of the prescribed rules. Ex parte Poultney V. City of La Fayette, 12 Pet. 474, 9 L. ed. 472. It is always in the power of the court to suspend its own rules, or to except a particular case from their operation whenever the purposes of justice require it. United States v. Breitling, 20 How. 254, 15 L. ed. 900; Russell V. McLellan, 3 Woodb. & M. 157; 21 Fed. Cases, 12,158. The Circuit (District) Court has power to construe its rules. Law- rence V. Bowman, 1 McAll. 419; Fed. Cases, 8,134. The great object of courts in adopting rules of practice is to facilitate the transaction of business without subjecting counsel to injustice. Kimball v. Stewart, 1 McLean, 332; Fed. Cases, 7,682. The Supreme Court has the power to regulate the whole practice in suits in equity in the Circuit (District) Courts; but any Circuit (Dis- trict) Court may regulate its own practice to advance justice, in any manner not inconsistent with law, or any rule prescribed by the Supreme Court. Steam Stone Cutter Co. v. Jones, 13 Fed. R. 581. Equity rules are framed to bring a cause to a hearing. After hearing, failure to proceed regularly in limine is waived without objection. Allen V. The Mayor, etc., 7 Fed. B. 484. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, where the rules prescribed for the equity practice of the Fed- eral, courts did not apply, the practice of the High Court of Chancery in England, as it existed prior to the adoption there of the "new rules," controlled. Gaines v. Relf, 15 Pet. 15, 10 L. ed. 9; Goodyear v. Provi- dence Rubber Co., 2 Cliff. 351; 10 Fed. Cases, 5,583; Story v. Livingston, 13 Pet. 368, 10 L. ed. 359. The "new rules" were adopted in England in a. d. 1842. The act for regulating process in the courts of the United States (now sec. 913, Rev. Slats., U. S. Comp. Stats. 1901, p. 683), adopts the principles, rules, and usages of the Court of Chancery of England. Vattier v. Hinde, 7 Pet. 252-274, 8 L. ed. 252. In the Federal courts an equitable claim must be enforced accord- ing to the rules prescribed regulating proceedings in equity, although the State law authorizes legal and equitable claims to be blended in one suit. Bennett v. Butterworth, 11 How. 674, 13 L. ed. 669. Rule I] EQUITY RULES 433 So, although by State law the distinction between actions at law and actions in equity has been abolished, and one form of action pre- scribed. Thompson v. Railroad Companies, 6 Wall. 134, 18 L. ed. 765. Even by a rule of court the equity practice of a Circuit (District) Court of the United States cannot be departed from. Bein ». Heath, 12 How. 168-178, 13 L. ed. 168; Gaines v. City, etc., 27 Fed. R. 411. A party whose title or claim is an equitable one must follow the forms and rules of equity proceedings as prescribed by the Supreme Court under the authority of the Act of August 23, 1842, 5 Stat. 518, sec. 6 (sec. 917, Rev. Stats). Hurst v. Hollingsworth, 100 U. S. 100-103, 25 L. ed. 571. These rules are simply rules of practice for regulating the mode of proceeding in the Circuit (District) Courts, and in no way affect their jurisdiction. Lewis v. Shainwald, 48 Fed. R. 492-493. Rule I — District Court always Open for Certain Purposes — Orders at Chambers The District Courts, as Courts of Equity, shall be deemed always open for the purpose of filing any pleading, of issuing and returning mesne and final process, and of making and directing all interlocutory motions, orders, rules, and other proceedings preparatory to the hearing, upon their merits, of all causes pending therein. Any district judge may, upon reasonable notice to the parties, make, direct, and award, at chambers or at the clerk's oflfice, and in vacation as well as in term, all such process, commissions, orders, rules, and other proceedings, whenever the same are not grantable of course, according to the rules and practice of the court. Substantially Rulea 1 and 3 of the rules adopted March 2, 1842. Decisions Confirmation of a sale by a master relates to final process and may be determined in vacation. Central Trust Co. v. Sheffield, etc., Co., 60 Fed. R. 14. The clerk's office is always open for the purpose of moving to sup- press depositions irregularly taken. Van Hook v. Pendleton, 2 Blatchf. 85; Fed. Cases, 16,852. 28 434 EQUITY RULES [Rules II-IV After the close of the term an order made therein as a general rule must stand; but orders obtained upon motion may be discharged upon motion. Eslava v. Mazange's Adm., 1 Woods, 623; Fed. Cases, 4,526. Rule II — Clerk's Ojffice Always Open, Except, etc. The clerk's office shall be open during business hours on all days, except Sundays and legal hoUdays, and the clerk shall be in attendance for the purpose of receiving and disposing of all motions, rules, orders, and other proceedings which are grantable of course. Substantially Rule 2 of the Rules adopted March 2, 1842. Rule III — Books Kept by Clerk and Entries Therein The clerk shall keep a book known as "Equity Docket," in which he shall enter each suit, with a file number correspond- ing to the folio in the book. All papers and orders filed with the clerk in the suit, all process issued and returns made thereon, and all appearances shall be noted briefly and chronologically in this book on the folio assigned to the suit and shall be marked with its file number. The clerk shall also keep a book entitled "Order Book," in which shall be entered at length, in the order of their making, all orders made or passed by him as of course and also all orders made or passed by the judge in chambers. He shall also keep an "Equity Journal," in which shall be entered all orders, decrees and proceedings of the court in equity causes ia term time. Separate and suitable indices of the Equity Docket, Order Book and Equity Journal shall be kept by the clerk under the direction of the court. A substitute for Rule 4 o! the Rules adopted March 2, 1842. Rule IV — Notice of Orders Neither the noting of an order in the Equity Docket nor its entry in the Order Book shall of itself be deemed notice to the parties or their solicitors; and when an order is made without prior notice to, and in the absence of, a party, the clerk, unless otherwise directed by the court or judge, shall forthwith send a copy thereof, by mail, to such party or his solicitor and RuleV] EQUITY RULES 436 a note of such mailing shall be made in the Equity Docket, which shall be taken as sufficient proof of due notice of the order. A substitute for the last thiee Clauses of Rule 4 ofthe Rules adopted March 2, 1842. Decisions Motion to dismiss a bill under old Equity Rule 38 denied where pleas, etc., filed were not entered in the order book as prescribed by old Rule 4. Newby v. Oregon, etc., Co., 1 Sawy. 63; 18 Fed. Cases, 10,145. Personal notice is required to obtain a paper, in the possession of the adverse party, to be used in evidence. Bronson v. Kensey, 3 McLean, 180; 4 Fed. Cases, 1,927. Contra if only to enable a party to plead. lb. Rule V — Motions Grantdble of Course by Clerk All motions and applications in the clerk's office for the issuing of mesne process or final process to enforce and execute decrees; for taking bills pro confesso; and for other proceedings in the clerk's office which do not require any allowance or order of the court or of a judge, shall be deemed motions and applications grantable of course by the clerk; but the same may be suspended, or altered, or rescinded by the judge upon special cause shown. Similar to Rule 5 of the Rules adopted March 2, 1842. Decisions Granting of a dedimus potestatem is not a matter of right. United States V. Parrott, 1 McAll. 447; 27 Fed. Cases, 15,999. The distinction between a motion grantable of course and a special one, is that a motion that requires an allowance from the judge, or a notice to the opposite party, is a special one; all others are grantable of course. lb. Special motions require notice to the adverse party. United States V. Parrott, 1 McAU. 447; 27 Fed. Cases, 15,999. Motion to dissolve an injunction must be personal, or by setting it down, and sufficient time must be allowed to take afiidavits. Wilkins V. Jordan, 3 Wash. C. C. 226; 29 Fed. Cases, 1,252. A motion for an order to issue a writ of attachment for the arrest of a person guilty of violating an injunction requires notice to the party charged. Gray v. Chicago, etc., Co., Woolw. 63; 10 Fed. Cases, 6,713. 436 EQUITY RULES [Rules VI, VII Previous notice of a motion for the appointment of a receiver is not necessary, when counsel of the opposite party is present in court. McLean v. Lafayette Bank, 3 McLean, 503; 16 Fed. Cases, 8,887. Rule VI — Motion Day Each District Court shall establish regular times and places, not less than once each month, when motions requir- ing notice and hearing may be made and disposed of; but the judge may at any time and place, and on such notice, if any, as he may consider reasonable, make and direct all interlocu- tory orders, rulings and proceedings for the advancement, conduct and hearing of causes. If the public interest permits, the senior circuit judge of the circuit may dispense with the motion day during not to exceed two months in the year in any district. A new rule promulgated November 4, 1912. Rule VII — Process, Mesne and Final The process of subpoena shall constitute the proper mesne process in all suits in equity, in the first instance, to require the defendant to appear and answer the bill; and, unless otherwise provided in these rules or specially ordered by the court, a writ of attachment and, if the defendant cannot be found, a writ of sequestration, or a writ of assistance to en- force a delivery of possession, as the case may require, shall be the proper process to issue for the purpose of compelling obedience to any interlocutory or final order or decree of the court. Substantially Bule 7 of the Rules adapted March 2, 1S42. Statutory Provisions Rev. Stats., sec. 911 V. S. Comp. Stats. 1901, p. 683. All writs and processes issuing from courts of the United States shall be under the seal of the court from which they issue, and be signed by the clerk thereof. Process of the Supreme and Circuit Courts bear teste of the chief justice of the Supreme Court; of the District Court bear teste of the judge thereof. All processes bear teste from the day of issue. Note. See Section 291 Judicial Code. Rule VII] EQUITY RULES .437 Rev. Stats., sec. 948 U. S. Comp. Stats. 1901, p. 695. Any Circuit or District Court may at any time, in its discretion, and upon such terms as it may deem just, allow an amendment of any process returnable to or before it, where the defect has not prejudiced, and the amendment will not injure, the party against whom such process issues. Rev. Stats., sec. 4063 U. S. Comp. Stats. 1901, p. 2760. Process issued from any United States or State court, against the person or goods of any foreign minister, or against the person of the domestic servant of such minister, is void. Rev. Stats., sec. 4064 U. S. Comp. Stats. 1901, p. 276. Person and attorney obtaining, and oflScer executing, such process subject to fine or imprisonment. Rev. Stats., sec. 4065 U.. S. Comp. Stats. 1901, p. 2761. When process may be issued against persons in the service of foreign ministers. Sec. 50, Judicial Code. When there are several defendants in any suit at law or in equity, and one or more of them are neither inhabitants of nor foimd within the district in which the suit is brought, and do not voluntarily appear, the court may entertain jurisdiction, and proceed to the trial and adjudication of the suit between the parties who are properly before it; but the judgment or decree rendered therein shall not conclude or prejudice other parties not regularly served with process, nor voluntarily appearing to answer; and non joinder of parties who are not inhabitants of, nor found within the district, as aforesaid, shall not constitute matter of abatement or objection to the suit. Sec. 57, Judicial Code. When in any suit commenced in any District Court of the United States to enforce any legal or equitable lien upon, or claim to, or to remove any incumbrance or hen or cloud upon the title to real or personal property within the district where such suit is brought, one or more of the defendants therein shall not be an inhabitant of, or found within the said district, or shall not voluntarily appear thereto, it shall be lawful for the court to make an order directing such absent defendant or defendants to appear, plead, answer, or demur, by a day certain to be designated, which order shall be served on such absent defendant or defendants, if practicable, wherever found, and also upon the person or persons in possession or charge of said property, if any there be: or where such personal service upon such absent defendant or defendants is not practicable such order shall be published in such man- ner as the court may direct, not less than once a week for six consecutive weeks. In case such absent defendant shall not appear, plead, answer, or demur within the time so hmited, or within some further time, to be allowed by the court in its discretion, and upon proof of the service or pubUcation of said order, and of the performance of the directions con- tained in the same, it shall be lawful for the court to entertain jurisdic- tion and proceed to the hearing and adjudication of such suit, m the same manner as if such absent defendant had been served with process within the said district; but said adjudication shall, as regards said absent defendant or defendants, without appearance, affect only the 438 EQUITY RULES [Rule VII property which shall have been the subject of the suit and under the jurisdiction of the court therein within such district, and when a part of the said real or personal property against which such proceedings shall be taken shall be within another district, but within the same State, said suit may be brought in either district in said State; Provided, however, that any defendant or defendants not actually personally notified as above provided may, at any time within one year after final judgment in any suit mentioned in this section, enter his appearance in said suit in said District Court, and thereupon the said court shall make an order setting aside the judgment therein, and permitting said defendant or defendants to plead therein on payment by him or them of such costs as the court shall deem just; and thereupon said suit shall be proceeded with to final judgment according to law." Decisions Congress may undoubtedly prescribe the forms and modes of pro- cedure in the judicial tribunals it establishes to carry into execution the judicial powers delegated to it by Congress. Steamer St. Lawrence, 1 Black, 522-528, 17 L. ed. 183, Dec. T., 1863. Jurisdiction over parties is acquired only by a service of process, or their voluntary appearance. If necessary defendants decline to appear and process cannot be served upon them, the court is without jurisdiction over essential parties and the biU must be dismissed. Hern- don V. Ridgway, 17 How. 424-425, 15 L. ed. 100. The court has no authority to issue process to another State. Herndon v. Ridgeway, 17 How. 425, 15. L. ed. 101. The special order of service authorized by Rev. Stats., sec. 738 (J7. S. Comp. Stats. 1901, p. 687, sec. 57, Judicial Code), may be had without the issuance of a subpoena, where the biU shows the defendants are non- residents. United States v. American Lumber Co., 80 Fed. R. 309-314. The issuance of a subpoena against a non-resident defendant to be served in another district is not the commencement of a suit, but a mere nullity; otherwise, if the subpoena is deUvered to the proper officer to be served bona fide, and on failure substituted service had. 76. 315-320. An action is not deemed commenced so far as the defendant is con- cerned, so as to stop the running of a. statute of limitations until ap- propriate process has been issued and there has been a bona fide attempt to serve the same. lb. 316. A party to a suit which as to him is an original proceeding cannot be brought before the "court in a foreign jurisdiction by an order for KuleVII] EQUITY RULES 439 substituted service, and its service upon a law firm retained to represent him, but who are not legal and acknowledged general representatives. Shainwald ». Davids, 69 Fed. R. 701. The practice as to substituted service stated. lb. 702. Substituted service upon complainant's attorney is allowed upon filing a cross-bill. The application of the rule for substituted service is denied to cross-bills relating to new and independent causes of action in which the complainant's attorney has not been retained. Fidelity Trust & S. V. Co. V. Mobile St. Ry. Co., 53 Fed. B. 850-852. Service of process upon the president of a non-resident corporation, not doing business in the State where suit is brought, while temporarily within the district, does not confer jurisdiction. /6. 853. A supplemental bill is a mere adjunct to the original bill, and where the parties have abeady been served (or have appeared) no further subpoena for them is required upon a supplemental bill. Shaw v. Bill, 95 U. S. 10-14, 24 L. ed. 333. A rule to show cause why an attachment for contempt should not issue must be served personally. If service is evaded or other special cause exists, service at the last place of abode of the party is deemed sufficient. Hollingsworth v. Duane, 1 Wall. Sr. 141; Fed. Cases, 6,617. An attachment for contempt must be entitled with the names of the parties. United States v. Wayne, 1 Wall. Sr. 134; Fed. Cases, 16,654. A voluntary appearance after revivor of suit is a waiver of process. Carrington v. Brents, 1 McLean, 167; Fed. Cases, 2,446. The Circuit (District) Courts can issue no process beyond the limits of their districts. Tolland v. Sprague, 12 Pet. 300-330, 9 L. ed. 1105, Jan. T., 1838. Independently of positive legislation, process can only be served upon persons within the same district where issued. lb. 330. The acts of Congress adopting the State process, adopt the form and mode of service, only so far as the persons are rightfully within the reach of such process. lb. 330. No jurisdiction can be acquired (even as against property) by at- taching property of a non-resident defendant pursuant to State attach- ment laws. The right to attach property to compel the appearance of persons may be used only when such persons are amenable to the process of the court in personam. lb. 330. Dissenting opinion upon the holding that the Circuit Courts had not the power to isstie process of attachment against property of a debtor, not an inhabitant of United States. lb. 336. 440 EQUITY RULES [Rule VII A court does not acquire jurisdiction of a foreign corporation resi- dent of another district, by attaching property within its jurisdiction. Day V. Rubber Co., 1 Blatchf. 630; Fed. Cases, 3,685. Where no service is made on a defendant not found in the district, an attachment levied on property of such non-resident defendant is void, and his subsequent appearance does not waive its uivalidity. Noyes W.Canada, 30 Fed.fi. 665. Defendants in chancery may waive process and appear; this having been done in good faith they are as much bound as if regularly served with process. Nelson v. Moon, 3 McLean, 319; Fed. Cases, 10,111. To give jurisdiction notice must be served on infants, even where court appoints guardian ad litem. lb. ' Under the rules in force prior to the revision promulgated November 4, 1912, Held the right to object that an action within the general jurisdic- tion of the court, is brought in the wrong district, was waived by entering a general appearance. Interior Construction Co. v. Gibney, 160 U. S. 217-219, 40 L. ed. 401. Under the rules in force prior to the revision promulgated November 4, 1912, Held the right to be sued in the proper district is a personal privi- lege which was waived by a general appearance. Tolland v. Sprague, 12 Pet. 300, 9 L. ed. 1093. Under the Act of 1887, where jiu-isdiction was founded on diverse citizenship only. Held the complaint must show that one of the parties resided in the district where suit was brought. Laskey v. Newtown Co., 50 Fed. R. 634. Jurisdiction must be aflSrmatively shown in suits brought in the Federal courts. 76.636. In any cause in which either plaintiff or defendant is a citizen of a State in which suit is brought and the adverse party is a citizen of another State, the privilege of being sued in the proper district may be waived by appearance and pleading to merits. Central Trust Co. V. Virginia, etc., Co., 65 Fed. B. 769-773. Held, the requirement of the Act of 1887, that one of the paities should be a citizen of the State in which suit was brought, could not be waived by consent or by appearance and pleading to merits. 76. Where the parties are corporations organized under laws of other States the fact that one of them has its principal place of business in the district where suit is brought does not affect the question of juris- diction, and jurisdiction in such case is not conferred by appearance and pleading to merits. 76. 773-774. Rule VII] EQUITY RULES 441 Under the Judiciary Act of 1789 it was not necessaxy to aver on the record that the defendant was an inhabitant of the district or found therein. Gracie v. Pakner, 8 Wheat. 699, 5 L. ed. 719. Hdd, under the law as it existed prior to the Act of Mar. 3, 1887, that although no civil suit may be brought in a Federal court by original process in any district where the defendant is not a resident or is not found, yet by sees. 2 and 4 of the Act of Mar. 3, 1875 (18 Stat. L. 470), suits commenced in the State courts against non-residents by attach- ment might be removed into the Circuit Courts of the United States and there determined. The legislation authorizing such removal and determination, Held, constitutional. United States v. Ottman, 1 Hughes, 313; Fed. Cases, 15,977. A suit begun in a State court by attachment of property and re- moved into the Federal court upon petition of defendant, wiU not be dismissed upon motion of the defendant for want of jurisdiction. Whether the court, by removal proceedings, had acquired full juris- diction of the person of the defendant, or might retain the case as a proceeding in rem, not decided. Purdy v. Wallace Miiller Co., 81 Fed. B. 513-517. Held that sec. 915, Rev. Stats. (U. S. Comp. Stats. 1901, p. 684) was to be read in connection with sec. 739, Rev. Stats. {U. S. Comp. Stats. 1901, p. 587), and authorized an attachment or garnishment only when the court had acquired jurisdiction of the defendant. Ex parte Railway Co., 103 U. S. 794, 103 L. ed. 401; Laahett v. Rumbaugh, 45 Fed. B. 23-30; Chittenden v. Darden, 2 Woods, 437; Fed. Cases, 2,688. It is not necessary that the authority of an attorney to appear shall appear on the face of the record. Osborne v. U. S. Bank, 9 Wheai. 738, 23 L. ed. 378. It is unnecessary for an attorney who prosecutes for a corporation to produce a warrant of attorney under seal. 76. When appearance and defense are made by a regular practicing attorney, it is presumed to be by authority; but an appearance by counsel, who has no authority to waive process or defend the suit,' may be explained. Shelton v. Tiffin, 6 How. 163-185, 12 L. ed. 387. The party is not bound by proceedings where there has been no appearance or process served, or where appearance has been entered by an attorney without authority. Ih. In cases where a resident of another district may be lawfully served with process the subpoena should be directed to the marshal of the 442 EQUITY RULES [Rule VIII district where the defendant resides. Seybert v. Shamokin, etc., Ry., 110 Fed. B. 810-811. Rule VIII — Enforcement of Final Decrees Final process to execute any decree may, if the decree be solely for the payment of money, be by a writ of execution, in the form used in the District Court in suits at common law in actions of assumpsit. If the decree be for the performance of any specific act, as, for example, for the execution of a conveyance of land or the delivering up of deeds or other documents, the decree shall, in all cases, prescribe the time within which the act shall be done, of which the defendant' shall be bound, without further service, to take notice; and upon affidavit of the plaintiff, filed in the clerk's office, that the same has not been complied with within the prescribed time, the clerk shall issue a writ of attachment against the delinquent party, from which, if attached thereon, he shall not be discharged, unless upon a full compHance with the decree and the payment of all costs, or upon a special order of the court, or a judge thereof, upon motion and affidavit, enlarging the time for the performance thereof. If the de- linquent party cannot be found a writ of sequestration shall issue against his estate, upon the return of non est inventus, to compel obedience to the decree. If a mandatory order, injunction or decree for the specific performance of any act or contract be not complied with, the court or a judge, besides, or instead of, proceeding against the disobedient party i^r a contempt or by sequestration, may by order direct that the act required to be done be done, so far as practicable, by some other person appointed by the court or judge, at the cost of the disobedient party, and the act, when so done, shall have like effect as if done by him. An amendment of Rule 8 of the Rules adopted March 2, 1842 Statutory Provisions Rev. Suits., sec. 985] U. S. Comp. Stats., 1901, p. 707. Executions run into all the districts of a State. Rev. Stats., sec. 986] U. S. Comp. Stats. 1901, p. 707. Executions in favor of the United States run into every State and Territory. Rule IX] EQUITY RULES 443 Decisions A marshal has no right to receive other than lawful money of the United States in discharge of an execution; if he does so without plain- tiff's authority the court will refuse to quash a second fieri facias. Griffin v. Thompson, '2 How. 244-256, 11 L. ed. 244. A motion against the marshal to compel him to pay over money col- lected is not a new suit and the residence of the parties need not be averred. Gwin v. Breedlove, 2 How. 29-34, 11 L. ed. 29. It is a well-settled principle of law that if an execution come into the hands of a sheriff to be executed he is bound to complete the execu- tion, though his term of office has expired. The same rule applies to a marshal. McParlane v. Gwin, 3 How. 717, 11 L. ed. 717. See sec. 790, Rev. Stats., U. S. Comp. Stats. f&Ol, p. 609, post, p. 457. The Circuit (District) Court may by rule adopt the law of a State giving a hen by attachment in a suit in equity. Steam Stone Cutter Co. V. Jones, 13 Fed. R. 567-577-582. Rule 8 does not apply to a mesne attachment in an equity suit, and there is nothing inconsistent with the rule in having such an attach- ment, where a special rule of court authorizes it. Ih. 581. Rule IX — Writ of Assistance When any decree or order is for the delivery of possession, upon proof made by affidavit of a demand and refusal to obey the decree or order, the party prosecuting the same shall be entitled to a writ of assistance from the clerk of the court. Same as Bule 9 of the Rules adopted March 2, 1842. Decisions The right to employ this writ is only against parties to the suit and those coming in under them after suit commenced. Thompson v. Smith, 1 Bill. 458; Fed. Cases, 13,977. The writ of assistance is the appropriate process to place a purchaser of mortgaged premises in- possession after receipt of the master's deed. Terrell v. Allison, 21 WaU. 289-291, 22 L. ed. 634. One who undertakes, during the pendency of a suit regarding real estate, to acquire rights therein under the defendant, may be dispos- 444 EQUITY RULES (Rule IX sessed by a writ of possession, and a court of equity is without jurisdic- tion to give relief to such evicted person until he has established his title at law. Lacassagne v. Chapuis, 144 U. S. 119-124, 36 L. ed. 368. It is well settled in regard to land that when" a suit is pending in regard to it, a person who purchases under the defendant pendente lite is subject to the operation of the writ of possession, if one is finally issued on a judgment in the suit. Walden v. Bodley, 9 How. 34-39, 13 L. ed. 34; Tilton v. Cofield, 93 U. S. 163, 23 L. ed. 858; County of Warren v. Marcy, 97 U. 8. 96-105, 24 L. ed. 977; Union Trust Co. v. Southern Navigation Co., 130 U. S. 565-571, 32 L. ed. 1043; Mellen i;. Mohne Iron Works, 131 U. S. 352-371, 33 L. ed. 178. A court having acquired jurisdiction of a person or property cannot be deprived of it, and no other court has the right to interfere with such custody or possession. Ableman v. Booth, 21 How. 506, 16 L. ed. 176; In re Johnson, 167 U. S. 120-125, 42 L. ed. 103. In this case there was a default decree on a bill alleging that goods purchased of plaintiff had been transferred by debtor in payment of land claimed after decree as homestead by defendant. A writ of assistance will be granted when the defendants in a creditor's bill refuse to surrender under the decree. Pratt v. Burr, S Biss. 36; Fed. Cases, 11,372. A subsequent purchaser from a purchaser at a master's sale is not entitled as of right to assistance to obtain possession of premises pur- chased imder decree by his grantor; yet where the court has ordered a receiver to turn over property sold under decree to the assignee of a purchaser, such assignee held entitled to the benefit of old Rule 9. Farmers' L. & T. Co. v. Chicago & Atl. Ry. Co., 44 Fed. B. 653-659. Where a writ of assistance was granted receivers appointed, and by leave of court a petition of intervention was filed to set aside the writ of assistance, and deliver property seized thereunder to the intervener, and after hearing the court denied the claim of intervenor and dismissed the petition. Held: such finding was a determination of the rights of the intervenor, and a final appealable order. That petitioner became a party to the suit to such an extent as to acquire a right of appeal from the order. Dexter Horton Natl. Bank, etc., v. Hawkins, 190 Fed. B. 924, 111 CO. A. 614. Although the bill to establish title to land did not specifically pray that complainant be put in possession, upon final decree for complainant, that he was entitled to the possession of land sued for and an easement in a certain street, the writ of assistance was properly awarded, in effect- RuleX] EQUITY RULES 445 uation of the decree and in accordance with Rule 9. Gormley v. Clark, 134 U. S. 338-350, 33 L. ed. 914. Upon a bill to remove a cloud on title a decree establishing title to land necessarily includes and carries with it the right of possession to the premises in suit as effectually as if the defendants had conveyed them to complainant. In legal effect and operation such a decree entitles the complainant to the possession of the property and that right passes to an assignee of complainant's title. The writ of assistance to effectuate a decree in equity is within the jurisdiction of courts of equity to avoid the rehtigation of questions once settled between the parties. Root v. Woolworth, 150 U. S. 401- 412, 37 L. ed. 1126. Rule X — Decree for Deficiency in Foreclosures, etc. In suits for the foreclosure of mortgages, or the enforcement of other liens, a decree may be rendered for any balance that may be found due to the plaintiff over and above the pro- ceeds of the sale or sales, and execution may issue for the collection of the same, as is provided in Rule 8 when the decree is solely for the payment of money. An amendment of Rule 92 adopted December Term, 1863. Decisions Under the rules in force prior to the revision promulgated November 4, 1912, Held where the proceeds of the sale were less than the amount due on the mortgage debt as decreed, the complainant was entitled, as a matter of right under Rule 92, to a deficiency decree. Northwestern M. L. Ins. Co. V. Keith, 77 Fed. B. 374-375, 23 C. C. A. 196. A special prayer for a decree for such deficiency as may be found, while the proper practice, is not necessary; the decree may be under the prayer for general rehef . Seattle L. S. & E. Ry. Co. v. Union Trust Co., 79 i^ei. U. 179-188, 24 C. C. A. 512. The case made by the bill must show that the balance claimed is due, otherwise it cannot properly be found so under the rule, which does not authorize courts to find a balance due because partial extinguish- ment has been effected by sale, if the indebtedness be not then payable. Ohio Central R. Co. v. Central Trust Co., 133 U. S. 83-91, 33 L. ed. 563, Oct. T., 1889. A decree of foreclosure is not a decree against the person and cannot be enforced by an execution against goods and lands generally. It is 446 EQUITY RULES [Rules XI, XII simply a decree for the sale of the land mortgaged, that the proceeds may be apphed to the debt. The rule has not changed the nature of the decree for foreclosure and sale; it was intended only to obviate the necessity for a separate action. Kountz v. Hotel Company, 107 U. S. 378-391, 27 L. ed. 615, Oct. T., 1882. Under the practice of Courts of Chancery in England no execution could issue for a deficiency upon the foreclosure of a mortgage, Held (in 1863) that there was no rule authorizing such execution in the Federal courts. Noonan v. Lee, 67 U. S. 499, 17 L. ed. 279) as explained in Orchard v. Hughes, 1 Wall. 73, 17 L. ed. 561. Former Rule 92 was then promulgated. Rule XI — Process in Behalf of and Against Persons not Parties Every person, not being a party in any cause, who has obtained an order, or in whose favor an order shall have been made, may enforce obedience to such order by the same process as if he were a party; and every person, not being a party, against whom obedience to any order of the court may be enforced, shall be liable to the same process for enforcing obedience to such orders as if he were a party. An amendment of Rule 10 of the Rules adopted March 2, 1842. Rule XII — Issim of Subpoena — Time for Answer Whenever a bill is filed, and not before, the clerk shall issue the process of subpoena thereon, as of course, upon the application of the plaintiff, which shall contain the names of the parties and be returnable into the clerk's office twenty days from the issuing thereof. At the bottom of the sub- poena shall be placed a memorandum, that the defendant is required to file his answer or other defense in the clerk's office on or before the twentieth day after service, excluding the day thereof; otherwise the bill may be taken pro confesso. Where there are more than one defendant, a writ of subpoena may, at the election of the plaintiff, be sued out separately for each defendant, or a joint subpoena against all the defendants. An amendment of Rule 12 of the Rules adopted March 2, 1S42. Rule XII] EQUITY RULES , 447 Statutory Provisions Sec. 52, Judicial Code.] If there are two or more defendants residing in different districts of a State suit may be brought in either district and process run to the marshal of the other district when endorsed by the clerk. Sec. 55, Judicial Code.] When land lies in different districts of a State, process may run into both. Sec. 12 of the Act of Feb. 4, 1887, 24 Stat. L. 379, gives power to the Interstate Commerce Commission to subpoena witnesses from any place in the United States at any designated place of hearing, and gives power to any Circuit (District) Court of the United States within the jurisdiction where an inquiry is being held to issue an order to appear and punish for contempt upon failure to obey. Sec. 5 of the Act approved July 2, 1890, c. 647, 26 Stat. L. 209 (the Sherman Act) authorizes service of process in suits under that act to run into any District throughout the United States. Decisions The subpoena is issued by the clerk as of course. United States v, American Lumber Co., 80 Fed. R. 309-313. An action is not begun so far as the defendant is concerned by the mere filing of a biU which alone wiU not prevent the operation of a statute of limitation unless process is taken out and a bona fide attempt made to serve it. 76. When a complainant has in good faith obtained process or done all that is necessary to obtain process to bring a defendant before the court his suit is begun as to that defendant within the meaning of sec. 8 of the Act of Mar. 3, 1875 (sec. 738, Rev. Stats. U. S. Comp. Stats. 1901, p. 587). Bisbee v. Evans, 17 Fed. R. 4:74:. Two or more defendants, residents and inhabitants of different dis- tricts of the same State, may be sued in either district. In such suit the clerk should issue a duplicate subpoena as provided in sec. 740, Rev. Stats, (sec. 52, Judicial Code). John D. Park & Sons Co. ». Bruen, 133 Fed. R. 806-807. The decisions upon this point are not uniform. lb. In a suit by junior mortgagees, holders of prior liens cannot be made parties except by service of process or voluntary appearance. No general notice requiring them to present their claims will bind them. Young V. Montgomery, etc., K. Co., 2 Woods, 606; Fed. Cases, 18,166. 448 EQUITY RULES [Rule XIII After a decree disposing of the issues has been made, it is not com- petent for one of the parties, without service of new process or appear- ance, under the title of the original cause, to institute further proceedings on new issues although connected with the subject-matter of the original Utigation. Smith v. Woolfolk, 115 U. S. 143-148, 29 L. ed. 357. New parties, not connected with plaintiff in the original suit, cannot be required by constructive service to appear to an ancillary suit. Bowen v. Christian, 16 Fed. R. 729. A return that notice has been served on defendant, Held to refer to the memorandum at the bottom of the subpoena. Allen v. Blunt, 1 Blatchf. 480; Fed. Cases, 215. In cases other than embraced in sec. 738, Bev. Stats. (JJ. S. Comp. Stats. 1901, p. 587, sec. 57, Judicial Code), Federal courts have no power to effect non-residents by constructive service. Parsons v. Howard, 2 Woods, 1; Fed. Cases, 10,777. That a defendant is a non-resident or absent may be shown by affidavit or other evidence. Held under the rules in force prior to the revision promulgated November 4, 1912, the order for appearance authorized by sec. 738, Rev. Stats. (U. S. Comp. Stats. 1901, p. 587, sec. 57, Judicial Code), is not a subpoena or a summons within the meaning of old Rules 15 and 17. Forsyth v. Pierson, 9 Fed. R. 801-803. Held, the privilege of exemption from suit outside of the district of in- habitance, given by the Act of Mar. 3, 1887, might be waived by a gen- eral appearance or by pleading to the merits. An objection to juris- diction made for the first time by motion in arrest of judgment is too late. Southern Ex. Co. v. Todd, 56 Fed. R. 104-106, 5 C. C. A. 432. Held that appearance and pleading to the merits would not dispense with the requirement of the Act of Mar. 3, 1887 (sec. 51, Judicial Code), that either the plaintiff or defendant must be a citizen of the State in which the suit is brought, the requirement being jurisdictional. Central ■ Trust Co. V. Va. T. & C. Steel Co., 55 Fed. R. 769-773. Rule XIII — Manner of Serving Svbpcena The service of all subpoenas shall be by delivering a copy thereof to the defendant personally, or by leaving a copy thereof at the dwelling-house or usual place of abode of each Rule XIII] EQUITY RULES 449 defendant, with some adult person who is a member of or resident in the family. An amendment of Rule 13 of the Eulea adopted March 2, 1842. Decisions A court has no jurisdiction over a citizen of another State tempora- rily in a district where process issued. Smith v. Tuttle, 5 Biss. 195; Fed. Cases, 12,130. lield, in a suit at law, that under the Act of 1887 service on a de- fendant while temporarily in the district of plaintiff's residence, and within the territorial jurisdiction of the court, is valid. Jewett v. Garrett, 47 Fed. R. 626. Personal Service of subpoena must be made on each defendant or by leaving a copy for each at his or her usual place of abode with some adult member of the family. O'Hara v. MacConnell, 93 U. S. 150, 23 L.ed.840. Robinson v. Cathcart, 2 Cr. C. C. 590, Fed. Cases, 11,946, holding where husband and wife are parties service on the husband alone good, decided under the old rules which were amended in 1875. Rule complied with if service at the door outside the dwelling. Phoe- nix Ins. Co. V. Wulf , 1 Fed. B. 775. A return served on "an adult person who is a resident in the place of the abode" of the defendant not a compliance with Rule 13. Ely the V. Hinckley, 84 Fed. B. 228. Under the rule that the writ be served personally or if defendant be not found, by leaving a copy thereof at his or her dwelling house or usual place of abode, a return "Executed on the defendant H. by leaving a true copy at his residence" not in conformity with the rule. Harris v. Hardeman, 14 How. 334, 14 L. ed. 444. If a person decUnes to receive from an officer a paper presented for service, the oflScer may deposit it in any convenient place in the presence of the party, and it will be a good service. Norton v. Meader, 4 Sawy- 603; Fed. Cases, 10,351. A return which declared that the subpoena had been handed to a person at the domicil of the defendant, and who resided at said domicil, the defendant being absent, was held insufficient as not stating it was 29 450 EQUITY RULES [Rule XIII left with a member or resident in the family of the defendant. Von Roy V. Blackman, 3 Woods, 98; Fed. Cases, 16,997. Under a State statute allowing notice of a suit to be posted upon the front door of defendants' "usual place of abode" if defendant not living or having his home in the house, posting notice at last place of abode not a compUance with statute. Earle v. McVeigh, 91 U. S. 503, 23 L. ed. 398. One who has resided in a State for a considerable time, there en- gaged in business, may be presumed to be a citizen of such a State, unless the contrary appears. Shelton v. Tifl&n, 6 How. 163-185, 12 L. ed. 387. The provision of sec. 11 of the Judiciary Act of 1789, that no civil suit shall be brought by original process in any other district than that of which the defendant is an inhabitant or shall be found at the time of serving the writ, was not repealed by the provision of the Bankrupt Act nor by sec. 6 of the Act of June 1, 1872, Rev. Stats., sec. 915 (U. S. Comp. Stats. 1901, p. 684), adopting existing provisions of State laws,, allowing the attachment of property. Nazro v. Cragin, 3 Dill. 474; Fed. Cases, 10,062. The Judiciary Act of 1789 did not contemplate compulsory process against any person not an inhabitant of or found within the district. Picquet v. Swan, 6 Mason, 35; Fed. Cases, 11,134. The Act of Aug. 13, 1888, c. 866, sec. 1, "that no suit shall be brought in the Circuit Court against any person by any original process . . . in any other district than that whereof he is an inhabitant," applied only to suits commenced in that court; it is no bar to the jurisdiction of the Circuit (District) Court of a case removed to it from a State court, that defendant is not a resident of the district; and that the State court had acquired jurisdiction by foreign attachment. Crocker N. Bk. v. Pagen- sticker, 44 Fed. R. 705; Richmond v. Brookings, 48 Fed. B. 241. Held under the Act of May 4, 1858, sec. 740, Rev. Stats. (U. S. Comp. Stats. 1901, p. 587, sec. 52, Judicial Code), a bill averring residence of the defendants in different districts of the State might pray process in dupMcate for execution by the respective marshals. Wenter v. Ludlow, 16 Leg. Int. 332; Fed. Cases, 17,891, p. 341. Under Rev. Stats., sec. 740 {U. S. Comp. Stats. 1901, p. 587), a sub- poena issued in a suit pending in one district might be served in another district of the same State. lb. Under the Act of Feb. 28, 1839, sec. 737, Rev. Stats. (JU. S. Comp. Stats. 1901, p. 587, sec. 50, Judicial Code), if the parties to a joint contract Rule XIII] EQUITY RULES 451 are served with process it need not appear that one, a non-resident of the district where suit is brought, was served within the district. Mc- Closkey v. Cobb, 2 Bond, 16; Fed. Cases, 8,702. A foreign attachment cannot be maintained in the Circuit (District) Court against a principal defendant unless he is an inhabitant of the district where the suit is brought, or is found within it at the time he is served with process. Service upon a garnishee within the district is not suihcient to found a judgment against the principal. Richmond v. Dreyfous, 1 Sumn. 131; 20 Fed. Cases, 11,799. Process from the Circuit (District) Court cannot be served without the district except in suits in equity to enforce a lien or claim against real or personal property within the district, and also in case of an action brought for infringement of a patent right. Cely v. GriflBn, 113 Fed. R. 981. I Held that Rev. Stats., sec. 738 (,U. S. Comp. Stats. 1901, p. 587, sec. 57, Judicial Code), refers to a lien existing anterior to the suit and not one caused by the institution of the suit itself. Dormitzer v. Illinois, etc., Co., 6 Fed. R. 217-218. Where the bill itself showed that the defendants were non-residents the only legal way they could be served with process was by the special order of service required by sec. 738, Rev. Stats. {U. S. Comp. Stats. 1901, p. 687, sec. 57, Judicial Code). United States v. American Lumber Co., 80 Fed. R. 309-310. Held, where the bill did not disclose the absence or non-residence of the defendants the issuance of the subpoena would be dispensed with where the affidavit required by sec. 738, Rev. Stats. {U. S. Comp. Stats. 1901, p. 587), was filed, but the better practice ia to allow the subpcena to be issued and return made. 76. 314. It is a cardinal principle of jurisprudence that process of a court cannot extend beyond the territorial jurisdiction of the court, and unless expressly authorized by law process issued by a Federal court cannot be served outside the territory over which it has jurisdiction. Sec. 738, Rev. Stats. {U. S. Comp. Stats. 1901, p. 587), did not authorize the issuance of process to be served beyond the jurisdiction of the court. 76.311-312. Held in proceedings under the Act of June 1, 1872, sec. 738, Rev. Stats. {U. S. Comp. Stats. 1901, p. 587), personal service should be secured when practicable. The order for appearance must be made by the court (in term) upon proper showing on oath. Bronson v. Keotuk, 2 DiU. 498; Fed. Cases, 1,928. Substituted service invalid without an application to the court Betting forth the circumstances requiring it, and an order obtained 452 EQUITY IITTLES [Rule XIII from the court directing servi6e be made and that such service when made shall answer as a substitute for actual service on the party repre- sented by the attorney served. Pacific Railroad v. iVIissouri, etc., Co., 3 Fed. R. 772-775. Substituted service of the subpoena to answer should not be allowed unless on the face of the bill there is merit. Muhlenburg County v. Citizens N. Bank, 65 Fed. R. 537. Substituted service is proper where a bill is brought to obtain a new trial of a cause at law in the same court. Oglesby v. Attrill, 14 Fed. R. 214-215. Suit to set aside a decree of foreclosure and sale is not a continuation of an original foreclosure suit, and not within the terms of sec. 738, Rev. Stats, (sec. 57, Judicial Code). Pacific Railroad v. Missouri, etc., Co., 3 Fed. R. 772-774. The principle that no court can acquire jurisdiction over the person of a defendant except by personal service of notice within the juris- diction or waiver of summons and voluntary appearance is applicable to all courts of justice. Caledonian Coal Co. v. Baker, 196 U. S. 432- 444, 49 L. ed. 645, Oct. T., 1904. The filing of a petition for removal of a cause to a Federal court, though in general terms, does not amount to a general appearance, but is a special appearance only, and every question, including want of jurisdiction of the person of defendant, may be made and is open for determination in the Federal court. Wabash W. Ry. v. Brow, 164 U. S. 271-279, 41 L. ed. 435, Oct. T., 1896. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held whether served with process or not was a question of practice and not of pleading and could not be raised by demurrer. Remedy was by motion to quash. Robinson v. Nat. Stock Yards Co., 12 Fed. R. 361. Whether a defendant had waived the personal privilege of being sued in the proper district could not be ascertained on demurrer. lb. 362. • Loss of the original writ after service does not affect the action; it is discretionary with the court to supply the deficiency. York and C. R. R. Co. V. Myers, 18 How. 246-253, 15 L. ed. 380. In proceedings in rem the defendant is not bound beyond the particu- lar property; any decree affecting other property is so far void. Bos- well V. Otis, 9 How. 336, 13 L. ed. 336. Rule XIII] EQUITY RULES 453 A party going into another State under process of a court is exempt from process while necessarily in attendance. Brooks v. Farwell 4 Fed. B. 167. While in another State attending a regular examination of witnesses a party is exempt from process in such State. PUmpton v. Winslow 9 Fed. R. 365. Objections to service of subpoena if not promptly made, deemed waived. Matthews v. Puflfer, 10 Fed. R. 606. Service of subpoena on a person designated by a fictitious name is void. Kentucky, etc., Co. v. Day, 2 Sawy. 468; Fed. Cases, 7,719. Appearance does not cure such defect in the writ, or make the ap- pearing person a party. 76. Moving to dismiss for want of jurisdiction on other grounds is a waiver of objection to being sued in the proper district. Jones v. An- drews, 10 Wall. 327, 19 L. ed. 935. A defendant who pleads and puts in an answer waives all objection to the regularity of the service of subpoena. Goodyear v. Chaffee, 3 Blatehf. 268; Fed. Cases, 5,564. After service and answer, defendant cannot on the hearing object that the bill contains no prayer for service, or that he was not served. Segee v. Thomas, 3 Blatehf. 11; Fed. Cases, 12,633. A corporation does not waive an objection to the jurisdiction of the court over it by appearing by attorney and pleading to the jurisdiction. Commercial, etc.. Bank v. Slocumb, 14 Pet. 60, 65, 10 L. ed. 354. Rtiles 11 to 15 relate principally to matters which may be done as of course with reference to the issue and service of process, and have no universal application to proceedings under the special order of the chanceUor. Gregory v. Pike, 79 Fed. R. 520-521, 25 CCA. 48. The return upon the writ must affirmatively show that service was made within the district wherein it was issued. Allen v. Blunt, 1 Blatehf. 480; Fed. Cases, 215. Held sec. 738, Rev. Stats. (U. S. Comp. Stats. 1901, p. 587, now sec. 57, Judicial Code), was the only statute which authorized service of process in a Federal court upon a defendant outside the district in which the suit is brought. Winter v. Koon, Schwatz & Co., 132 Fed. R. 273-274. 454 EQUITY RULES [Rule XIII Note. Sec. 5 of the Act approved July 2, 1890, c. 647, 26 Stat. 209 (the Sherman Act) authorizes service of process in suits under it to run into any District throughout the United States. The issuance of a subpoena against non-residents, and sending it out of the district in which only it could be served and to persons who are without power to serve it is a nulUty. United States v. American Lumber Co., 85 Fed. R. 827-832, 29 C. C. A. 431. See cases cited under jurisdiction of Federal courts, ante, page 415 et seq. A non-resident cannot be enticed into the district where plaintiff resides for the purpose of serving process upon him; if served by such improper means the service is void. Union Sugar Refinery v. Mathies- son, 2 Cliff. 304-309; Fed. Cases, 14,398, followed in Steiger v. Bown, 4 Fed. R. 17-19. If service cannot be made as required by Rule 13 the court has no power to order service by publication or otherwise. Hyslop v. Hop- pock, 5 Ben. 533; Fed. Cases, 6,989 (except in the class of cases pre- scribed by sec. 738, Rev. Stats. (,U. S. Comp. Stats. 1901, p. 587, sec. 57, Judicial Code) . If a judgment at law be obtained by one person against another and an injunction be applied for, a service of subpoena upon the attorney of the plaintiff at law, if his client live out of the State, confers juris- diction, because the subject in controversy is the same. Henter v. Suckley, 2 Wash. C. C. 465; Fed. Cases, 6,543. Where defendant sues in equity in the same Circuit (District) Court a non-resident plaintiff at law, to restrain prosecution of the action at law, service of subpoena upon such plaintiff's attorney confers jurisdic- tion. Segee v. Thomas, 3 Blatchf. 11; Fed. Cases, 12,633; McDonald v. Seligman, 81 Fed. R. 756. A bill filed in a Circuit (District) Court of the United States to enjoin a judgment of that court is not considered an original bill but a continua- tion of the proceeding at law, and the court will not require actual service of subpoena on the defendant if he were a party to the judg- ment at law. Minnesota Co. v. St. Paul Co., 2 Wall. 633, 17 L. ed. 886. Notwithstanding Rules 13 to 15, it is well settled that in ancillary proceedings service may be made on the attorney of record, or on some other agent of the defendant in such proceedings, with the same offert as though made in strict complianqe with the rule. This departure Rule XIII] EQUITY RULES 455 from the usual method involves the exercise of judicial discretion and something on record to support it. Service of process made upon the attorney of the defendant without any order of the court, Held void. Gregory v. Pike, 79 Fed. B. 520, 25 CCA. 46. Proceedings original under English Chancery, Hdd ancilliary in the Federal courts. 75.520. An injunction bill is not considered an original bill between the same parties in the action at law; but if other parties are made in the biU, as to them it is an original bill. Dunn v. Clarke, 8 Pet. 1-3, 8 L. ed. 845. The practice in ancillary suits to stay proceedings at law, and cross- suits in equity, stated. Eckert v. Bauert, 4 Wash. C. C. 370; Fed. Cases, 4,266; Ward v. Seabry, 4 Wash. C C 426; Fed. Cases, 17,161; "Ward V. Seabring, 4 Wash. C. C. 472; Fed. Cases, 17,160; The Cortes Co. V. Tennhauser, 9 Fed. B. 226. Service upon the president of a non-resident corporation not doing business in the jurisdiction, while temporarily in the district, is a nullity. FideUty Trust & S. V. Co. v. Mobile St. Ry. Co., 53 Fed. B. 850-853, 4 C. C A. 52. The rule announced in Ex parte Schollenberger, 96 U. S. 369-377, 24 L. ed. 853, and New England Ins. Co. v. Woodworth, 111 U.S. 138-146, 28 L. ed. 379, that a foreign corporation, by doing business in a State other than where incorporated, consents to be "found" there for the purpose of being sued, within the meaning of the Judiciary Act of 1789, and subsequent acts including the Act of Mar. 3, 1875, was abrogated by the Act of 1887, which omitted the clause allowing a defendant to be sued in the district where he is found. Shaw v. Quincy Mining Co., 145 U. S. 444^448, 36 L. ed. 768. Congress not having laid down any rule with regard to serving of mesne process upon corporations the State law and practice must be followed. Amy v. Watertown, 130 U. S. 301, 32 L. ed. 946. Valid service of process may be made upon the agent of a foreign corporation, who voluntarily comes into the jurisdiction of the court upon the business of the corporation which is the subject of the suit in which the service is made. Premo Specialty Mfg. Co. v. Jersey Creme Co., 200 Fed. B. 352, 118 C. C. A. 458-465. Service of process upon an officer, agent, or director of a foreign cor- poration within a State is not of itself suflBcient unless the corporation ^loes business or has property within the State or has some designated 456 EQUITY KULES [Rule XIII agent for the receipt of service. Eeilly v. Philadelphia & R. Ry. Co., 109 Fed. E. 349-360. A State statute requiring a foreign corporation, as a condition to obtaining a permit to do business, to authorize service of process on its agent within such State, may subject such corporation to the juris- diction of a State court, but does not authorize proceeding in contra^ vention of the Act of Congress. Southern Pacific Co. v. Denton, 146 U. S. 202-209, 36 L. ed. 943. A corporation, by doing business or appointing a general agent in a district other than that in which it is created, does not waive its right, if seasonably availed of, to insist that the suit should have been brought in the latter district. In re Keasbey Co., 160 U. S. 221-229, 40 L. ed. 402. Where a State statute requires as a condition under which a foreign corporation may do business within the State, that it shall appoint a resident agent therein, authorized to accept service of process in any action or suit pertaining to the property, business or transactions of such corporation within such State, to which such corporation shall be a party, Held, that foreign corporations could not be coerced to submit to Utigate any controversy which did not pertain to either its property situated within the State, or its business conducted or carried on within the State or to transactions had within the State. Rutan V. Johnson, 130 Fed. B. 109, 64 C. C. A. 443. To authorize service upon an officer or agent of a foreign corpora- tion, the foreign corporation must actually or substantially be engaged in business within the State, transacted by some agent or manager representing such corporation, and it must appear that the local statute provides for suit against such foreign corporation which has been per- mitted to transact business within the State. Buffalo Glass Qo. v. Mfg.'s Glass Co., 142 Fed. R. 273. Where a corporation has filed with the authorities of the State where incorporated a certificate designating its office and place of business, it is to be deemed a resident of the district within which such place is situated, and cannot be sued in any other district of such State although its business operations extend into other districts. Weed v. Center & C. St. Ry. Co., 132 Fed. B. 151-152. Service on the United States in suits under the Tucker Act of Mar. 3, 1887, c. 359, sec. 6, 24 Stat. 506 {U. S. Comp. Stat. 1901, p. 755) by caus- ing a copy of the petition in a cause to be served on the district attorney of the district where suit is brought and mailing a copy by registered Rules XIV, XV] EQUITY RULES 457 mail to the attorney general is mandatory. Reed Wrecking Co. v. United States, 202 Fed. B. 314-317. Personal service of process must be made on an infant in an action involving personal as distinguished from property rights before a Federal court has jurisdiction to appoint a guardian ad litem for the infant defendant. N. Y. Life Ins. Co. v. Bangs, 103 U. S. 435-439, 26 L. ed. 582. Process must be served within the district where the action is brought. 75. Held in this case that under the former rule the wife could be served with process by leaving a copy with the husband. Rule XIV — Alias Subpoena Whenever any subpcEna shall be returned not executed as to any defendant, the plaintiff shall be entitled to other subpcBnas against such defendant, until due service is made. An amendment of Rule 14 of the Rules adopted March 2, 1S42, Rule XV — Process, by Whom Served The service of all process, mesne and final, shall be by the marshal of the district, or his deputy, or by some other person specially appointed by the court or judge for that purpose, and not otherwise. In the latter case, the person serving the process shall make affidavit thereof. Same as Rule 15 of the Rules adopted March 2, 1842. Statutory Provisions Rev. Stats., sec. 787 U. S. Comp. Stats. 1901, p. 608. Duty of the marshal to execute process. Rev. Stats., sec. 789 U. S. Comp. Stats. 1901, p. 609. In case of death of marshal his deputies continue in office and execute the process in the name of the deceased, until another marshal appointed. Rev. Stats., sec. 790 U. S. Comp. Stats. 1901, p. 609. Marshal and deputies when removed, or term expires, may execute process in their hands. Rev. Stats., sec. 922 U. S. Comp. Stats. 1901, p. 686. When the marshal or his deputy is a party in any cause, the writs and precepts shall be directed to such disinterested person as the court or any justice or judge thereof may appoint and the person so appointed may execute and return them. 458 EQUITY RULES [Rule XV Decisions The marshal must make his return at his peril, and any person in- jured by it has his remedy. Wortman v. Conyngham, 1 Peters C. C. 241; Fed. Cases, 18,056. If he has doubts as to who is entitled to receive money collected he may pay it into court. The court will not interpose in a summary way . to distribute the money or decide the rights of claimants to the fund. /6. Marshals have same power sheriffs had on the day of the passage of the Act of 1861, sec. 788, Rev. Stats. {,11. S. Comp. Stats. 1901, p. 608). The E. W. Gorgass, 10 Ben. 460; Fed. Cases, 4,585. Under sec. 788, Rev. Stats. (JJ. S. Comp. Stats. 1901, p. 608), if State laws allow a sheriff to appoint a person to perform a special service, the marshal has like power and his appointee need not be sworn as a deputy. Hyman v. Chales, 12 Fed. R. 855. The marshal is liable if he fail to obey the exegit of the writ or violate the rights of others. Life & F. Ins. Co. v. Adams, 9 Pet. 573-603, 9 L. ed. 571. Marshal liable to extent of injury for failure of deputy to serve process. United States v. Moore, 2 Brock, 317; Fed. Cases, 15,802. Where the mandate of the writ is to take the person mentioned therein and have him before the court to answer in a plea of debt, a discharge of the debtor and return on the writ "debt and costs satisfied," made by a deputy upon payment of the amount of the debt, is not an official act and the return does not prevent further steps authorized by law. lb. The marshal on an ordinary process in personam containing a clause directing the marshal in case the defendant could not be found tot at- tach goods and chattels thereof returned, that defendant not having been found, he had attached property; upon no showing of collusion or fraud, Held, the return should stand and the marshal left to justify it in an action for a false return, if it was claimed he failed to make proper effort to serve the defendant. Harriman v. The Rockaway, etc., Co., 5 Fed. R. 461. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held a plea was bad which traversed the return of the marshal in the same cause. Von Roy v. Blackman, 3 Woods, 98; Fed. Cases, 16,997. Parties in the same case cannot question the marshal's return, even though it involves an opinion. 76, liuleXVI} EQUITY RULES 459 The power of the court to permit its officers to amend their returns is liberaUy exercised in the interest of justice, where rights of third parties not affected. Phoenix Ins. Co. v. Wulf, 1 Fed. B. 775-778. A return of process by a deputy in his own name as deputy, if served by him, good. Spafford v. Goodell, 3 McLean, 97; Fed. Cases, 13,197. Marshal is bound to serve the process as soon as he reasonably can. Kennedy v. Brent, 6 Cr. 187, 3 L. ed. 194. The subpoena, though not in form, is, in effect, process, directed to the marshal. Wenter v. Iowa, etc., R. Co., 2 DiU. 487; Fed. Cases, 17,890. The power of the court to direct that a person other than the marshal serve the subpoena is not limited but discretionary. lb. An attachment being process of the court must be served by the marshal (or by his deputy or some other person appointed by the court). United States v. Montgomery, 2 Dall. 335, 1 L. ed. 404. As soon as the marshal seizes goods, under proper process of the court, he is entitled to the sole and exclusive custody thereof, subject to the future orders of the court. Ex parte Hoyt, 13 Pet. 279-290, lOL.ed. 161. Where a deputy marshal is a party to the suit; qusere, whether he may plead in abatement that process was not served on him by a disinterested person. Knox v. Summers, 3 Cranch, 496. Rule XVI — Defendant to Answer — Default — Decree Pro Confesso It shall be the duty of the defendant, unless the time shall be enlarged, for cause shown, by a judge of the court, to file his answer or other defense to the bill in the clerk's office within the time named in the subpoena as required by Rule 12. In default thereof the plaintiff may, at his election, take an order as of course that the bill be taken pro confesso; and thereupon the cause shall be proceeded in ex parte. A substitute for Rules 17 and 18 of the Rules adopted Match 2, 1842 Decisions Irvine v. Lowry, 14 Pet. 293-299, holding that an appearance in a State court to remove is a waiver of objection to jurisdiction, overruled by Wabash Ry. v. Brow, 164 U. S. 271-279, 41 L. ed. 431. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held where a defendant appeared by motion, to object to the 460 EQUITY RULES [Rule XVI jurisdiction of the court over hia person, and at the same time asked that the cause be dismissed because the court had no jurisdiction over the subject-matter of the suit, this constituted a voluntary appearance. Fitzgerald v. Fitzgerald, 137 U. S. 98-106, 34 L. ed. 608. The Circuit Court for the Ninth Cucuit provided by Rule 22 that the party appearing specially should state in writing that his appear- ance is special, "and that if the purpose for which such special appear- ance is made will not be sanctioned or sustained by the court, he will appear generally in the cause," and that if such statement be not made, "the appearance shall be deemed and treated as a general ap- pearance," Held, that the court had power to make this rule, under sec. 918, Rev. Stats. (U. S. Comp. Stats. 1901, p. 685), authorising the Circuit Court to make rules not inconsistent with the law and rules prescribed by the Supreme Court. Mahr v. Union Pacific R. Co., 140 Fed. R. 921-925. Whenever a Utigant appears in a cause to deny jurisdiction over his person, which would otherwise exist but for the failure to pursue the methods prescribed by law for bringing him into court, he must con- fine himseK to the suggestion that the summons or notice, as the case may be, required by law to be served has not been served, and that the court is therefore without jurisdiction in the absence of such service. If he enters into the question of whether the court has jurisdiction over the subject-matter of the suit in a transitory action, and challenges that point, he waives the want of service, and enters voluntarily into a controversy which goes to the merits, and thereby submits to the jurisdiction of the covurt over his person. lb. 923. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, in a suit to enforce a lien, etc., affecting property within the district, under sec. 738, Rev. Stats. {U. S. Comp. Stats. 1901, p. 587), as re-enacted by sec. 8 of the Act of Mar. 3, 1875, c. 137, 18 Stat. L. 472 (sec. 57 Judicial Code), where there was no service of process upon the defendant within the jurisdiction, but the defendant appeared "spe- cially and solely for the purpose of objecting to the jurisdiction of the court," and moved to dismiss the suit upon grounds which related mainly to the merits of the case, which was overruled, and afterward filed a demurrer raising the question of jurisdiction. Held, that such appearance did not amount to a general appearance, and that the defendant was still an "absent defendant, without appearance," within the meaning of those words in the Act of Mar. 3, 1875. York County Savings Bank v. Abbott, 139 Fed. R. 988-990. Held, further, that as the defendant first appeared to move to dis- miss and the motion to dismiss was refused, the subsequent appear- ance by defendant on demurrer, in which demurrer the defendant also stated the appearance to be special without waiver of objection to the jurisdiction before taken by motion to dismiss, could not be regarded Rule XVI] EQUITY RULES 461 aa voluntary, but forced by the refusal to dismiss; that the appear- ance was not an appearance within the meaning of the 8th sec. of the Act of Mar. 3, 1875, and that all questions of jurisdiction which might have been raised under the motion to dismiss were still available. 76. An answer by stockholders, even where permitted by the court, is not the answer of the corporate body, and if a defendant corpora- tion fails to answer under its common seal the complainant is entitled to enter an order that the bill be taken pro confesso. Bronson v. La Crosse R. Co., 2 Wall. 283-302, 17 L. ed. 725. A decree pro confesso taken before the expiration of the time to answer is irregular and will be set aside on motion. Fellows v. Hall, 3 McLean, 487; Fed. Cases, 4,723. A decree pro confesso for want of an answer is irregular where process was not served twenty days before the return-day, and if final decree has been entered the court on motion will set it aside. TreadweU v. Cleveland, 3 McLean, 283; Fed. Cases, 14,155. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held the term "ex parte" under the rule did not mean with- out notice to a party who had appeared in the cause. After a final decree, upon a decree pro confesso, motion to set aside the decree was granted because no notice of application for such decree was given defendant. Bennett v. Hcefner, 17 Blatchf. 341; Fed. Cases, 1,320. See Frow v. De La Viga, 15 Wall. 552, 21 L. ed. 60, contra. Also Austin V. Reilly, 55 Fed. R. 833-837. To suppress an answer of parties defendant for contempt and after so doing to render a decree pro confesso for want of answer is beyond the power of the court; the decree is void for want of jurisdiction and may be collaterally attacked. Hovey v. Elliott, 167 U. S. 409-444, 42 L. ed. 212. The decree pro confesso is only nisi. Under the rules adopted in 1822 it was not made absolute until the succeeding term. Pendleton V. Evans's Extx., 4 Wash. C. C. 337; Fed. Cases, 10,920. Under equity practice before the adoption of rules, where an in- junction had been issued upon substituted service upon defendant's attorney, in an action at law five years before. Held, irregular to order the bill taken pro confesso without an appearance or an attachment. Read v. Consequa, 4 Wash. C. C. 174; Fed. Cases, 11,606. Held that by the uniform rule of equity practice the defendant should take the court's leave to enter a special appearance to make objection 462 jEQtriTY euleS [Rule XVt to the court's jurisdiction over his person which was never granted, except upon an undertaking contained in the order, that the defendant would submit without further process to the orders of the court if the point should be decided against him. Romaine v. Union Ins. Co., 28 Fed. R. 625-630. The English Chancery practice is gone into with an extended citation of cases. 76. A party loses no rights by pleading to the merits as required after saving his rights by proper objection. Merchants, etc., Co. v. Clow, 204 U. S. 286-289, 61 L. ed. 489; So. Pacific v. Disston, 146 U. S. 202, 36 L. ed. 943. The right to object to the illegality of service of process by special appearance is not waived by answering upon the merits after the objec- tion is overruled. Harkness v. Hyde, 98 U. S. 476-479, 25 L. ed. 237. In the early practice. Held, that where a defendant might have ap- peared "in propria persona" and pleaded an abatement; if he appears by attorney all irregularity of process is cured. Knox v. Summers, 3 Cranch, 496-498, 2 L. ed. 610. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held a general appearance cured any defect in the service of process. Farrar v. United States, 3 Pet. 459-460, 7 L. ed. 741. A general appearance waives any objection to the suit founded on the defendant's residence in another district. Taylor v. Longworth, 14 Pet. 172-174, 10 L. ed. 406. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held where a defendant who was not compelled to appear and did not appear was a necessary party, the other defendants who had answered the bill might move for a dismissal and might have the bill dismissed for non-prosecution. Pickett v. Swann, 5 Mason, 561; Fed. Cases, 11,135. An appearance subsequent to judgment cannot impart validity to an anterior judgment otherwise void. Dorr v. Giboney, 3 Hughes, 382; Fed. Cases, 4,006. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held where an attorney appeared generally for the defendant and afterwards withdrew such withdrawal did not deprive the plaintiff of the benefit of the appearance in curing defects in the former pro- ceedings. Creighton v. Kerr, 20 Wall. 8, 22 L, ed. 309. Rule XVII] EQUITY RULES 463 The appearance is not withdrawn, although the attorneys by whom it was entered are withdrawn. lb. By the withdrawal of a plea, the defendant is not out of court. Eldred V. Bank, 17 Wall. 551. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held the time of appearance of defendant might be extended by order of the court to prevent injustice. Poultney v. Lafayette, 12 Pet. 472, 9 L. ed. 1161. Where a corporation sued under a wrong name voluntarily appears, no objection can be taken to the decree for want of process. Virginia, etc., Co. V. United States, Taney, 418; Fed. Cases, 16,973. By appearing, it admits the wrong name to be its true name, and under that name becomes a party to the suit. lb. One wio files an intervening petition thereby submits himself to the jurisdiction of the court. President, etc., Bowdoin College v. Merritt, 69 Fed. B. 6. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held when a defendant did not reside in the State where suit was brought, but was served with process there, he might plead tlie matter in abatement. If he did not plead it in abatement, he could not afterwards set it up unless it appeared on the face of the bill. Searles v. J. P. & M. R. Co., 2 Woods, 621; Fed. Cases, 12,586. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held a court of equity should, at any time before entry of default, refuse to permit a biU to be taken for confessed, if defendant appeared and tendered his answer. Haldeman v. Haldeman, Hemp. 407; Fed. Cases, 5,908. Decided under Rule 18 of the Rules adopted in 1822. Under the 17th Rule adopted in 1822 before a bill could be taken for confessed, defendant must have been ruled to answer. 76. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held old Rule 18 required the defendant to plead by the next rule-day after appearance, which was the same as if a special rule were taken on him to do so. O'Hara v. McConnell, 93 U. S^ 150-154, 23 L. ed. 843, Oct. T., 1876. Rule XYII— Decree Pro Confesso to be Followed by Final Decree — Setting Aside Default When the bill is taken pro confesso the court may proceed to a. final decree at any time after the expiration of thirty 464 EQUITY KULES [Rule XVII days after the entry of the order pro confesso, and such decree shall be deemed absolute, unless the court shall, at the same term, set aside the same, or enlarge the time for filing the answer, upon cause shown upon motion and affidavit. No such motion shall be granted, unless upon the payment of the costs of the plaintiff up to that time, or such part thereof as the court shall deem reasonable, and imless the defendant shall undertake to file his answer within such time as the court shall direct, and submit to such other terms as the court shall direct, for the purpose of speeding the cause. Substantially the same as Eule 19 of the Rules adopted March 2, 1812. Decisions A decree pro confesso is not a decree as of course according to the prayer of tlie bill, nor merely such as the complainant chooses to take, but according to what is proper to be decreed upon the statements of the bill assumed to be true. A confession of facts properly pleaded dispenses with proof of those facts and is as effective for the purposes of the suit as if the facts were proved; and a decree pro confesso regards the statements of the bill as confessed. Thompson v. Wooster, 114 U. S. 104-110, 29 L. ed. 105, Oct. T., 1884. A final decree based on a decree pro confesso is binding and con- clusive and cannot be impeached collaterally, but only on a bill of review, or a bill to set aside for fraud. In an infringement suit where a decree pro confesso is entered for want of an answer, and the cause is referred to a master for an ac- counting, the only question before the master is the amount of dam- ages and profits. Reedy v. Weston El. Co., 83 Fed. B. 709-711, 28 C. C. A. 27. Upon a decree pro confesso entered for want of an answer the only question on appeal is whether the allegations of the bill are sufficient to support the decree. Masterson v. Howard, 18 Wall. 99, 21 L. ed. 764. The only effect of a decree pro confesso is to enable the case to be proceeded with ex parte. Unless followed by a final decree it settles no rights. Lockhart v. Horn, 3 Woods, 542; Fed. Cases, 8,446. Where a case for relief is made in the bill it may be given by imposing conditions oa the complainant consistent with the rules of equity, Rule XVII] EQUITY BULES 465 in the discretion of the court. Walden v. Bodley, 14 Pet. 156-164, 10 L. ed. 398. Under old Rule 20, promulgated in 1822, no service of any copy of an interlocutory decree pro confesso was necessary before final decree. Bank v. White, 8 Pet. 262, 8 L. ed. 938. If one of several defendants make default, a decree pro confesso may be entered as to the party in default, but no final decree can be entered on the merits until the case is disposed of as to the other defendants, and if on the hearing the plaintiff fails to sustain his case the bill will be dismissed as to all. Frow v. De La Viga, 15 Wall. 552-554, 21 L. ed. 60. The defaulting defendant is simply out of court and cannot take any further part in the cause. 76. In such case if the biU be dismissed on the merits, it will be dismissed as to the defendant in default as well as the others. lb. The defaulting defendant will not be entitled to service of notices in the cause, nor to appear in it in any way. He cannot be heard at the final hearing. lb. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held, where defendant had appeared he had a right to be heard as to the form of the final decree, and such questions as could be presented upon the pleadings and proofs, even after a decree pro con^ fesso. Southern Pac. R. Co. v. Temple, 59 Fed. B. 17-19. A decree entered piirsuant to an order pro confesso on a cross-bill is interlocutory, and may be reconsidered, modified, or set aside at a subsequent term. Blythe v. Hinckley, 84 Fed. R. 228. A decree entered pursuant to an order pro confesso on a cross-biU will be set aside where there are serious irregularities in the service of subpoena on the cross-bill, which was amended after the decree pro confesso and the final decree. 76. No final decree upon the whole case can be entered pursuant to an order pro confesso on a cross-biU, while there is pending an undeter- mined motion to dismiss the original suit for want of jurisdiction. 76. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held a decree absolute might be entered after a decree pro confesso entered in disregard of a demurrer filed, lacking the certificate of counsel and affidavit required by Rule 31. Sheffield Furnace Co. v. Withrow, 149 U. S. 574, 37 L. ed. 853. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held, the decree nisi was made absolute at or after the next 30 466 EQUITY RULES [Rule XVII succeeding rule-day. O'Hara v. MacConnell, 93 U. S. 150-153, 23 L. ed. 840. It is within the discretion of a court of equity upon a proper showing to set aside a decree pro confesso upon such terms as it may see fit to prescribe. French v. Hay, 22 Wall. 238-248, 22 L. ed. 801. Laches may prevent the setting aside of a decree pro confesso. A petition to vacate the decree should be made at the earliest practicable moment. Comly v. Buchanan, 81 Fed. R. 58. A decree pro confesso irregularly entered will be set aside on motion as of course. Fellows v. Hall, 3 McLean, 281 ; Fed. Cases, 4,722. A final decree on a decree pro confesso cannot be vacated at a sub- sequent term, no application to vacate or modify having been made at the term at which rendered. Stuart v. City of St. Paul, 63 Fed. B. 644. If the court in its discretion by order enlarge the time to answer, and afterwards proceed to a final decree without a compUance with its order, because of defendant's omission, it will not be error for which a bill of review will Ue, but an irregularity to be redressed on motion, while the court retains power over the decree. Bank v. White, 8 Pet. 262-269, 8 L. ed. 938. After a decree pro confesso the defendant will not be allowed on appeal to question the sufficiency or amount of evidence, but is not precluded from contesting the sufficiency of the bill or from insisting its averments do not justify the decree. If averments are indefinite or complainant's demand is in its nature uncertain proof must be adduced. Ohio Central R. Co. V. Central Trust Co., 133 U. S. 83, 33 L. ed. 563. If the allegations are distinct and positive they may be taken as true without proof; if they are indefinite or the demand of the com- plainant is in its nature uncertain, the requisite certainty must be afforded by proof. On appeal the defendant is not precluded from contesting the sufficiency of the bill, or insisting that its averments do not justify the decree. If a decree is not confined to the matter of the bill, it may be attacked on appeal. Ohio Central Ry. Co. v. Central Trust Co., 133 U. S. 83-90, 33 L. ed. 663, Oct. T., 1889. On a petition of defendant setting up that plaintiff had deceived him into failing to defend, that he had a meritorious defense and praying leave to file an answer and to have the decree pro confesso set aside, Held the petition was properly denied. McMickin v. IPerin, 18 How. 507, 15 L. ed. 506. jiules XVIII, XIX] EQUITY RULES 467 In equity the court has a discretion as to the costs, and may impose them all upon one party or may divide them in such manner as it sees fit. Kittredge v. Race, 92 U. S. 11&-121. Rule XVIII — Pleadings — Technical Forms Abrogated Unless otherwise prescribed by statute or these rules the technical forms of pleadings in equity are abolished. A new rule promulgated November 4, 1912. Rule XIX — Amendments Generally The court may at any time, in furtherance of justice, upon such terms as may be just, permit any process, proceeding, pleading or record to be amended, or material supplemental matter to be set forth in an amended or supplemental plead- ing. The court, at every stage of the proceeding, must dis- regard any error or defect in the proceeding which does not affect the substantial rights of the parties. A new rule promulgated November 4, 1912. Statutory Provisions Defects in matter of form shall be disregarded in all courts of the United States. The court may at any time permit either of the parties to amend any defect in the process or pleadings, upon such conditions as it shall in its discretion and by its rules prescribe. Rev. Stats., sec. 954, U. S. Comp. Stats. 1901, p. 696. Decisions No rule eaa be laid down in reference to amendments of equity plead- ings that will govern all cases. This must depend upon special circum- stances in each case. Hardin v. Boyd, 113 U. S. 756, 28 L. ed. 1141. In passing upon applications to amend, the ends of justice must not be sacrificed by too rigid adherence to technical rules of practice. Amendments are only allowed where the bill is defective in its prayer for relief, or in proper parties, or in the statement of facts or circum- etances connected with the substance of the case, but not forming the substance of it. /6. 761. Amendments are only allowed where upon the case made by the bill, plaintiff is entitled to relief, though different from that sought by the prayer. lb. Amendments in chancery are within the provisions of the statute of 1789 upon the subject of jeofails. Chemments v. Moore, 6 Wall. 468 EQUITY RULES [Rule XIX 299-311, 18 L. ed. 786; Clarke v. Mathewson, 12 Pet. 164-172, 9 L. ed. 1041. See sec. 954, Rev. Stats. {U. S. Comp. Stats. 1901, p. 696). There are cases in chancery where amendments are permitted at any stage of the cause, as where an essential party has been omitted. Walden V. Bodley, 14 Pet. 156-160, 10 L. ed. 398. Amendments which change the character of the biU or answer, so as to make substantially a new case should rarely, if ever, be allowed after the case has been set for hearing. 76. Federal courts of equity are indulgent in allowing amendments of pleadings in matters of form, but slow to allow amendments in matters of substance. Schultz v. Phenix Ins. Co., 17 Fed. R. 376-390. Where the affidavit in support of the motion to file an amended answer fails to show that the new facts have come to the knowledge of the respondent since the original answer was prepared, the amend- ment may be denied. Ih. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held no material fact occurring after the filing of the biU could be introduced by amendment. If it was done it was cause for demurrer. Copen v. Fleischer, 1 Bond, 440; Fed. Cases, 3,211. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held, new matter could not be added to the bill by special repUcation, but must be by amended bill or by supplemental bill. Dupontit). Mussy, 4 Wash. C. C. 128; Fed. Cases, 4,185. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held, an amendment was of course, where objection to the jurisdiction had been sustained, but there had been no general ap- pearance or plea, demurrer or answer filed. Insurance Co. v. Svendsen, 74 Fed. R. 346-347. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held, after a cause had been decided in favor of the defend- ant upon a demurrer filed, the court had power to allow an amendment of the bill, but should exercise its discretion cautiously on appUcations of this nature. Hunt v. Rausmanier, 2 Mason, 342; Fed. Cases, 6,898. This principle is supported by the Act of 1789 (sec. 954, Rev. Stats., supra, U. S. Comp. Stats. 1901, p. 696). lb. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held, the complainant was not entitled as a matter of right to amend his bill after the demurrer had been sustained, but the court, in its discretion, might grant him leave to amend upon terms. Na- tional Bank v. Carpenter, 101 U. S. 567-568, 25 L. ed. 815. Rule XIX] EQUITY RULES 469 Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held, old Rule 35 did not give complainant an absolute right to amend; after demurrer sustained it was left in the discretion of the court to be exercised for the promotion of justice. Held, the abuse of this discretion must be plain to warrant a review in an appellate court. United States v. Atherton, 102 U. S. 372-375, 26 L. ed. 213; Natl. Bank v. Carpenter, 101 U. S. 567-568, 25 L. ed. 815. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held, it was improper upon a single demurrer, to sustain a bill in part and overrule it in part; yet where this was done and the defendant answered the bill as amended, both parties were deemed to have waived the objection. Marshall v. Vicksburg, 15 Wall. 146-149 21 L. ed. 121. The right to amend may be lost by delay in moving to amend. Edward P. Allis Co. v. Withlacoochee L. Co., 105 Fed. R. 680-682. Leave to amend may be refused because of laches in applying. Jones V. Welling, 16 Fed. R. 655. The averments of citizenship of a party may be amended at any stage of the cause if the amendment is asked in a reasonable time after the defect is suggested. Fisher v. Rutherford, Bald. 188; Fed. Cases, 4,823. The staleness.of a demand, or the want of proper parties, is no ob- jection to the anjendment of a bill. lb. If the bin states facts to entitle the plaintiff to relief, the coiu't will allow it to be amended even if it be an appeal, and will remand the cause for this purpose. Lewis v. DarUng, 16 How. 1, 14 L. ed. 819. A defect in the bill that a party has been joined who has no interest in the suit may be cured by amendment, which can be directed at the instance of the court, and even on appeal. Hubbard v. Manhattan Trust Co., 87 Fed. R. 51-57, 30 C. C. A. 520. Where the case is not properly prepared for final decree, the appel- late court may direct that the decree be reversed, and the cause re- manded, with leave for the plaintiff to amend the bill. Estho v. Lear, 7 Pet. 130-131, 8 L. ed. 633. Where the record upon the bill and answer is so deficient that the court is unable to make a decree, the appellate court may order a reversal, with directions for the requisite amendments. Harrison v. Nixon, 9 Pet. 483-505, 9 L. ed. 201, Mr. Justice Baldwin dissenting. 470 EQUITY RULES [Rule Xi:}^ The power to amend exists in the appellate court, as well as in the court where the proceeding has been had, and in the appellate court defects in matter of form are not to be regarded as error. Smith v. Jackson, 1 Paine, 486; Fed. Cases, 13,065. Defects in substance cannot be amended in an appellate court. They may be amended in the trial court on terms before final judgment or decree. lb. An amendment must be made, where although all the parties are before the court, the rights of the persons present are so involved, that complete and final justice cannot be done between the parties to the suit without affecting those of some absent party. Shields v. Barrow, 17 How. 130-141, 15 L. ed. 158. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held, after the final decree, an amendment of the plead- ings to meet objections raised long before the decision was rendered, should not be allowed. Blair v. Harrison, 57 Fed. B. 257, 6 C. C. A. 326. If a contract be set out in substance but not in exact terms, an amend- ment on easy terms will be allowed to cure any variances. Where the contract proved, varied essentially from that set out in the bill, and would have proved fatal without an amendment, it was held that an amendment should be allowed the plaintiff, who otherwise had merits, and that such amendment might even be allowed after decree. Tufts v. Tufts, 3 Wondb. & Af. 456; Fed. Cases, 14,233. An amendment which changes the character of the bill may be al- lowed after final decree, if the cause has been tried as it would have been had the bill originally been in the amended form, where such amendment introduced no new cause of action. The Tremolo Patent, 23 Wall 518, 23 L. ed. 97. A court of equity has power to adapt its proceedings to the exigencies of each particular case, and this power would often be ineffectual unless it also possessed the power, after a cause has been heard and the case for relief made out but not the case disclosed by the biU, to allow an alteration of the bill, on terms that the party not in fault could have no reasonable ground "to object to. Neale v. Neales, 9 Wall. 1-9, 19 L. ed. 590. Before the hearing the court's discretion is controlled by the rules of equity proceedings adopted by the Supreme Court, but not so upon the hearing, for there is no rule on the subject of amendments applicable to a cause which has advanced to this point; therefore an amendment at the hearing is in the discretion of the court. lb. 9. Rule XIX] EQUITY RULES 471 Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held, it was error to strike from the files an amendment to a bill, which explained the delay in bringing suit, and was an answer to the charge of laches, upon which a demurrer had been sustained. Laut v Manley, 75 Fed. R. 627, 21 C. C. A . 457. A bill may be amended upon the hearing of an appUcation for a pre- hminary injunction to supply a defective statement of parties, who have been served with notice and contested the motion, and the amend- ment becomes effective at once for the purpose of the hearing. Ameri- can Steel & W. Co. ». Wire Drawers, etc.. Union, 90 Fed. B. 598. The amendment of a bill, on which an injunction has been granted, will not affect the injunction granted on the original bill. Reed v. Consequa, 4 Wash. C. C. 174; Fed. Cases, 11,606. New process is not necessary upon an amended bill as to defendants already before the court. French v. Stuart, 22 Wall. 238, 22 L. ed. 854. An amended bill should state only so much of the original bill as may be necessary to make intelligible the new matter. Pirree v. West, 3 Wash. C. C. 354; Fed. Cases, 10,910. The amended bill should call upon the original defendants to answer it, and upon the new defendants to answer both that and the original biU. lb. It is more proper to file an amended bill than to interline the original. lb. K an unnecessary party is joined, over whom the court has no juris- diction, objection to the jurisdiction may be cured by amendment. ConoUy v. Taylor, 2 Pet. 556-565. Matters existing at the time of the fiUng of the bill, necessary to the case but omitted therefrom, should be brought in by amendment. If arising after the biU is filed, by a supplemental bill. Swatzel v. Arnold, 1 Woolw. 383; Fed. Cases, 13,682. If an amendment in effect make a new case or one inconsistent with the position of. the complainants in the suit at law, where they are seeking a new trial, it will be stricken from the files on motion. Oglesby V. Attrill, 14 Fed. B. 214-215. A biU by way of supplement and amendment making an essential change in the character of the original suit may not be filed after the original bill has been argued and is under advisement. Snead v. Mc- CouU, 12 How. 407-422, 13 L. ed. 1043. Especially where not accompanied by evidence, in an affidavit or 472 EQUITY RULES [Rule XIX otherwise, to show the amendments could not have been made part of the original biU. lb. 422. Where a cause has been dismissed for want of jurisdiction, the bill cannot be amended and the cause restored. Jackson v. Ashton, 10 Pet. 480, 9 L. ed. 502. After the annoimcement of the final decision of the court upon the merits, it is proper to refuse to permit an amendment to meet objections which were raised at the hearing two months before the decision was rendered. Claflin v. Bennett, 51 Fed. B. 693. An amendment cannot be allowed which substitutes a new plaintiff as the owner of the subject-matter of the suit. So held where "A" brought suit for infringement of patent and afterward sought to amend by add'ng "C" as plaintiff, alleging "C" to be the exclusive owner of the patent right. Goodyear v. Bourn, 3 Blatchf. C. C. 266; Fed. Cases, 6,561. In a suit for infringement of patent, after decree and accounting, a motion for amendment on the ground that the admisBions of the answer were by mistake, will be denied. Ruggles v. Eddy, 11 Blatchf. 524; Fed. Cases. 12,118. The granting or refusing leave to file an amended bill or plea is a matter within the discretion of the trial court, and will not be reviewed in an appellate court unless there has been gross abuse of this discre- tion. Chapman v. Barney, 129 U. S. 677-681, 32 L. ed. 800; Gormley v. Bunyan, 138 U. S. 623-631, 34 L. ed. 1086. Under the rules in force prior to the revision promulgated November 4, 1912, Held, the fact that a demurrer was sustained to a biU which made a good case upon a defective statement, and the bill amended by leave did not change the fact of jurisdiction of the res as the amendments related back to and became part of the original bill, and Held a later suit in. a State court would not acquire jurisdiction because of the defective allegations cured by amendment. Gaylor v. Ft. Wayne, etc., R. Co., 16 Biss. 286; Fed. Cases, 5,284. Where between the date of filing the bill and its amendment suit was instituted in the State court and a receiver appointed it did not result that the Federal court lost jurisdiction of the res and was re- quired to yield its jurisdiction. lb. After filing an answer defendant may, by leave, file a supplemental answer to set up new matter come to his knowledge since fifing the original answer. Caster v. Wood, Bald. 289; Fed. Cases, 2,505. Rule XIX] EQUITY RULES 473 If the facts were known to the party when the original answer was filed and omitted through mistake, leave to file a supplemental answer may be refused. Suydam v. Truesdale, 6 McLean, 459; Fed. Cases 13,656. If amendments are made without obtaining leave and are not ob- jected to, the want of leave will be waived. Clemments v. Moore, 6 WaU. 299-311, 18 L. ed. 786. The omission to obtain leave to amend is within the statute of jeo- fails (Sept. 24, 1789, sec. 954, Rev. Stats., U. S. Corrvp. Stats. 1901), p. 696. /b.311. An objection to an amendment of a bill in chancery because not filed with the leave of the court cannot first be made on appeal. lb. The leave to amend may be without notice to the defendant. In re Sanford Fork & Tool Co., 160 U. S. 247-256, 40 L. ed. 416, Oct. V., 1895. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held, under the rules prescribed for the Circuit Courts upon the coming in of defendant's answer, four courses were open to com- plainant. (1) He might upon motion have leave to amend with or without costs as the court might direct, Rules 29 and 45. (2) He might file exceptions to the answer for insufiiciency. Rule 61. When if an amended answer was not filed the exceptions should be set for hearing, Rule 63. If the exceptions were allowed a complete answer must be put in, or so far as the exceptions were concerned the bill might be taken as confessed. (3) If the answer was not excepted to, or was deemed or adjudged sufficient, a general replication might be filed, which put the cause at issue. Rule 66. Or (4) the cause might be set for hearing upon bill and answer. Rule 41. 76. 256-257. When the cause was set down on bill and answer, all the facts alleged in the biU and not denied in the answer, as well as all new facts alleged in the answer were deemed admitted, as upon a demurrer to an answer at law. 7b. 257. Where the proofs in a cause show a case not put in issue by the plead- ings, an amendment wiU be permitted which shaU bring the proofs and the real case before the court. Calloway v. Dobson, 1 Brock. 119; Fed. Cases, 2,325. An amendment will not be permitted after the opinion of the court and the testimony have indicated in what respect the answer may be modified, to effect as testimony such a change in the answer as will defeat the justice of the case. 76. No amendment is necessary when in a suit on a different cause of action a judgment in a prior suit can be used in evidence to support the construction of the complainants but cannot be pleaded as an absolute 474 EQUITY RULES [Rule XX bar arising on the face of the records. So. Pacific Ry. v. The United States, 168 U. S. 57, 42 L. ed. 380. At the hearing of a cause, even upon appeal, an order may be made for the cause to stand over, with Uberty to plaintiff to amend by adding proper parties, if it appear he ie entitled to relief, but it cannot be given tor want of proper parties. Lewis v. Darling, 16 How. 1-8, 14 L. ed, 822. Where on a bill to cancel a sheriff's deed for fraud containing the usual prayer for other relief, but no offer to pay the execution debt on which the property was sold, the cause was heard on pleadings and proofs, the court held the case was not one for cancellation of the deed but for redemption and gave leave to amend the bill on judgment of costs and reasonable counsel fees. Held as the prayer might have been in the alternative, the amendment was proper. Graffam v. Burgess, 117 U. S. 180, 29 L. ed. 844. It will be noted the defendants were allowed to file a new answer after the amendment of the prayer of the bill. . lb. Rule XX — Further and Particular Statement in Pleading may be Required A further and better statement of the nature of the claim or defense, or further and better particulars of any matter stated in any pleading, may in any case be ordered, upon, such terms, as to costs and otherwise, as may be just. A new rule promulgated November 4, 1912. Decisions Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held, the rule that a bill should contain a clear and explicit description sufficient to give the defendant notice of the subject-matter of the complaint against him was not abrogated by old Rule 26. Electro Libration Co. v. Jackson, 52 Fed. R. 773-776. The bill should give the requisite full information of itself. Where for convenience exhibits are allowed, the bill should contain explicit reference to them. lb. Pleadings in equity are viewed without regard to form, and excep- tions arc never allowed if made under circumstances calculated to effect a surprise on either party. Surget v. Byers, Hemp. 715; Fed. Cases, 13,629. Any defect in the statements made in the bill is rendered immaterial by setting out the facts in the answer. Cavender v. Cavender, 114 U. S. 464-471, 29 L. ed. 212. kuleXXI] iBQUITY RULES 475 Rule XXI — Scandal and Impertinence The right to except to bills, answers, and other proceedings for scandal or impertinence shall not obtain, but the court may, upon motion or its own initiative, order any redundant, impertinent or scandalous matter stricken out, upon such terms as the court shall think fit. A substitute for Rule 26 of the Rules adopted March 2, 1842. Decisions Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held, old Rule 26 did not curtail the inherent power of the Court to strike out rambling or tautological pleadings, or purge the record of scandalous, or impertinent matter, on its own motion, in the absence of exceptions. Kelly v. Boettcher, 85 Fed. R. 55-57. Scandal in pleading consists of any unnecessary allegations bearing cruelly on the moral character of an individual, or in stating anything contrary to good manners, or anything unbecoming the dignity of the court. lb. The statement of immaterial facts is impertinence because they have no relation to the issues to be decided. Statement of matters of law is impertinence because the court takes judicial notice of the law and its statement is unnecessary. 76. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held, when the court of its own motion struck from its files a bill as scandalous or impertinent, it might allow a new bill, not exceeding a prescribed length, to be filed as of the date of the original fiUng. 76. 55. Immaterial and scandalous parts of an answer will not be stricken out if intended to meet charges of bad faith made in the bill. Mercan- tile Trust Co. V. Missouri, K. & T. R. Cp., 84 Fed. B. 379. Impertinence is any matter not relevant to a point properly before the court for a decision at any stage of the cause. Wood v. Mann, 1 Surv-ner, 578; Fed. Cases, 17,952. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held, allegations of an answer which set up no fact, but which were simply an argument as to the effect of facts alleged in the bill, were impertinent, and should be stricken out on exception. Fla. Mtg. & Inv. Co. V. Finlayson, 74 Fed. R. 671-674. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, HeU, on exceptions for impertinence, the pleadings would be given a liberal construction, having regard to the nature of the case. Griswold v. Hill, 1 Paine, 390; Fed. Cases, 5,835. 476 EQUITY IlULES [Rule XXII Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held, exception for impertinence would not be allowed unless it was clear that the matter excepted to could not be material to plain- tiff's case. Wells v. Oregon Ry. & N. Co., 15 Fed. R. 661-563. Material matters are not necessarily impertinent because such, as the court will judicially notice. Ih. It is not impertinent in a bill for an injunction to refer to recent adjudications of the question involved by co-ordinate tribunals, as the attention of the defendants and the court is thus properly brought to them. Ih. 564. Upder the rules in force prior to the revision promulgated Novem- ber 4, 1912, Hdd, exceptions for impertinence might be allowed where the matter was stated with needless proUxity. If the matters were material the exception would not be allowed, as that would leave the defendant without remedy, but the allegations would be allowed to remain in the answer and their effect, if found true, determined on final hearing. Chapman v. School District, 1 Deady, 108; Fed. Cases, 2,607. Where the same matter is repeated in two or more places in a bill such repetitions will be struck out and an amendment allowed. Nevada Nickel Syndicate v. National Nickel Co., 86 Fed. B. 486-^88. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held, pleadings in equity are viewed without regard to form, and exceptions were never allowed if made under circumstances likely to effect a surprise to either party. Surget v. Byers, Hempst. 715; Fed. Cases, 13,629. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held, on exceptions because of irrelevant matter courts always give the answer a liberal consideration, having regard to the nature of the case made by the biU. Griswold v. Hill, 1 Paine, 390; 'Fed. Cases, 5,835. The court is not expected to search the bill and answer through, to discover the grounds of exception. Schultz v. Phoenix Ins. Co., 77 Fed. B. 375-390. Rule XXII — Adion at Law Erroneously Begun as Suit in Equity — Transfer If at any time it appear that a suit commenced in equity should have been brought as an action on the law side of the court, it shall be forthwith transferred to the law side and be Rule XXIII] EQUITY RULES 477 there proceeded with, with only such alteration in the plead- ings as shall be essential. A new rule promulgated November 4, J912. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held, an objection that a court of equity was without juris- diction because an adequate remedy existed at law came too late in an appellate court, unless the want of jurisdiction appeared on the face of the bill. Wylie v. Coxa, 15 How. 415-420, 14 L. ed. 753. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held, an objection that a Federal court was without jurisdic- tion because the complainant had an adequate remedy at law must be made by demurrer or plea. By answering to the merits respondent waived any right to object to the power of the court to deal with the case as one in equity, the court having the power to grant the relief sought. Brown v. Lake Superior Iron Co., 134 U. S. 530-536, 33 L. ed. 1021. To prevent matters purely cognizable at law from being drawn into chancery at the pleasure of the parties, if on looking into the proofs it finds none of the matters which make a proper case for equity the court of its own motion may dismiss the bill. Lewis v. Cocks, 23 Wall. 466, 23 L. ed. 70. The objection that on the plaintiff's own showing the court has no jurisdiction in equity may be noticed by the court. Strong v. Richmond, etc., R. Co., 101 Fed. R. 511-515, 41 C. C. A. 474. Where the Circuit (District) Court dismisses the bill for want of jurisdiction it has no power to decree the pajTuent of costs and penalty. Citizens' Bank v. Cannon, 164 U. S. 319-324. An exception to the rule that costs must go to the prevailing party,- is found where the remedy in equity is refused, and yet the party may proceed at law; in such case, provided a stipulation is entered into by the party that he will not proceed at law, costs will not be allowed upon bill dismissed. Webb v. Bowers, 11 Law. Rep. 84; Fed. Cases, 17,319. Rule XXIII— Makers Ordinarily Determinable at Law, when Arising in Suit in Equity to be Disposed of Therein If in a suit in equity a matter ordinarily determinable at law arises, such matter shall be determined in that suit 47§ EQUITY RULES [Rule XXlV according to the principles applicable, without sending the case or question to the law side of the court. A new rule promulgated November 4, 1912. Decisions A party who claims a legal title must proceed at law, and a party whose title is equitable must follow the forms and rules of equity pre- scribed by the Supreme Court under authority of the Act of Aug. 23, 1842, sec. 917, Rev. Stats. (.U. S. Comp. Stats. 1901, p. 684). Hart v. Hollingsworth, 100 U. S. 100-103, 25 L. ed. 571, Oct. T., 1879. Although a party may have waived matters of form by going to a hearing in an action brought on the law side of the court, if the action is strictly in equity he has a right to insist on the provisions of the Proc- ess Act of 1792, re-enacted as sec. 913, Rev. Stats. (U. S. Comp. Stats. 1901, p. 683), by which the blending of equitable and lega;l causes of action in one suit is prohibited. lb. 103. The findings of a jury upon an issue of fact directed by an equity court are merely advisory, and the court may disregard them entirely or adopt them either partially or in toto. Kohn v. McNulta, 147 U. S. 208-240, 37 L. ed. 150. A court of equity will not frame issues and order a trial by jury before any evidence has been taken in the trial, and where it cannot be known at that stage of the ease whether any substantial dispute will be left in reference to such issues. Fenno v. Primrose, 125 Fed. R. 634r-637. Rule XXIV — Signature of Counsel Every bill or other pleading shall be signed individually by one or more solicitors of record, and such signatures shall be considered as a certificate by each solicitor that he has read the pleading so signed by him; that upon the instructions, laid before him regarding the case there is good ground for the same; that no scandalous matter is inserted in the plead- ing; and that it is not interposed for delay. An amendment of Rule 24 of the Rules adopted March 2, 1842. Decisions Under Rule 24 the signature of counsel takes the place of an exami- nation of the bill by the chancellor under the old practice. United States V. American Lumber Co., 85 Fed. R. 827-830, 29 C. C. A. 431. The printed name of counsel is not his signature. Nightingale v. Oregon Cent. R. Co., 2 Saviy. 338; Fed. Cases, 10,264. Rule XXV] EQUITY RULES 479 The bill must be signed by counsel. But a signing on the back is sufficient. Dwight v. Humphries, 3 McLean, 104; Fed. Cases, 4,216. A bill filed without the signature of counsel was ordered taken off the files; it may be restored on motion after signed. Roach v. Hulings, 5 Cranch C. C. 637; Fed. Cases, 11,874. A counsellor of the court may sign the bill as "solicitor." Stenson V. Hildrop, 8 Biss. 376; Fed. Cases, 13,459. A distinction made between the attorney and his principal in a suit. Reads. Consequa, 4 Wash. C. C. 174; Fed. Cases, 11,606. Rule XXV — Bill of Complaint — Contents Hereafter it shall be sufficient that a bill in equity shall contain, in addition to the usual caption: First, the full name, when known, of each plaintiff and defendant, and the citizenship and residence of each party. If any party be under any disability that fact shall be stated. Second, a short and plain statement of the groimds upon which the court's jurisdiction depends. Third, a short and simple statement of the ultimate facts upon which the plaintiff asks relief, omitting any mere state- ment of evidence. Fourth, if there are persons other than those named as defendants who appear to be proper parties, the bill should state why they are not made parties — as that they are not within the jurisdiction of the court, or cannot be made parties without ousting the jurisdiction. Fifth, a statement of and prayer for any special relief pending the suit or on final hearing, which may be stated and sought in alternative forms. If special relief pending the suit be desired the bill should be verified by the oath of the plaintiff, or some one having knowledge of the facts upon which such relief is asked. This rule appears to be a substitute for Rules 20, 21, 22 and 23 of the Rules adopted March 2, 1842. Decisions The names of parties and their citizenship should be stated in the body of the bill. The title or caption is not a part of the bill, and it is not sufficient to state the names and citizenship therein only. Jack- son V. Ashton, S Pel. 148-149, 8 L. ed. 898. 480 EQUITY RULES [Rule XXV A statement of the residence of the parties to a bill in equity in the Federal court is not necessary to center jurisdiction, except in cases in which the jurisdiction depends on the diverse citizenship of the parties. Wright V. Skinner, 136 Fed. R. 694-695. To give jurisdiction the citizenship of a defendant is as necessary to be stated as that of complainant. Findlay v. Bank of U. S., 2 McLean, 44; Fed. Cases, 4,791. The citizenship should appear on the face of the bill or the biU will be dismissed for want of jurisdiction. Dodge v. Perkins, 4 Mason, 435; Fed. Cases, 3,954. An averment that plaintiff, a bank incorporated under the Act of Congress, is a citizen of the State of , and located and residing and doing business in the city of , in said State, and that the defendant is a citizen of another State, is a sufficient averment to show jurisdiction. Mfgs. Nat. Bank v. Baack, 8 Blatchf. 137; Fed. Cases, 9,052. Where the bill properly avers the necessary facts to confer juris- diction on the Federal court, the burden is upon the defendant to both allege and prove the facts relied upon to defeat the jurisdiction. Wie- mer v: LouisviUe Water Co., 130 Fed. B. 244. The bill must distinctly state the citizenship of every necessary party to it, and, where jurisdiction is dependent on it, show that the complainants and defendants are citizens of different States. Speigel V. Meredith, 4 Biss. 120; ^ed. Cases, 13,227. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held, no appearance, demurrer, or answer to a bill would waive such an omission in it. lb. It must appear affirmatively on the face of the bill that complain- ants are not citizens of the same State with the defendants. Mescerole 1). Union Paper C. Co., 6 Blatchf. 356; Fed. Cases, 9,488. Where the residences of parties are not given, such failure may be corrected by an amendment on motion. Harvey v. Richmond, etc., Co., 64 fed. K. 19-21. The bill must specifically state the district of the residence of the parties, where there is more than one judicial district in the State. lb. The statement of citizenship is necessary in original bills where jurisdiction depends on that. In removed causes, both at law and in equity, it should appear, when required in the petition for removal. Dancel v. United Shoe M. Co., 120 Fed. B. 839-840. RuleXXV] EQUITY RULES 481 A defective statement may be amended under sec. 954, Bev. Stats. (U. S. Comp. St., 1901, p. 696), which applies to equity causes. 76. 840. The court may, on its own motion, dismiss a bill defective for want of proper allegations as to the citizenship of the parties in that portion of the bill, where they are properly inserted, unless the bill is amended within a time named. City, etc., v. Tibetts, 51 Fed. B. 852-855. Persons cannot be made parties to a bill by fictitious names; and appearance after service of subpoena upon persons so designated is void and will be set aside. Kentucky, etc., Co. v. Day, 2 Sawy. 468; Fed. Cases, 7,719. Appearance of a corporation sued under a wrong name is good as an admittance that such is its true name. Virginia, etc., Co. v. United States, Taney, 418; Fed. Cases, 16,973. A person who has no interest in a legal sense in the subject-matter of a suit in personam cannot compel the plaintiff to make him a party. Coleman v. Martin, 6 Blatchf. 119; Fed. Cases, 2,985. Every bill must contain in itself sufficient matter of fact to main- tain plaintiff's case. Harrison v. Nixon, 9 Pet. 483, 9 L. ed. 201. It is not always necessary that the bill minutely charge all the facts which are matters of evidence; but there must be in the bill allegations broad enough to cover any evidence offered. Nesmith v. Calvert, 1 Woodb. & M. 34; Fed. Cases, 10,123. General allegations in the bill are often sufficient to render proper the introduction of evidence of documents or cumulative facts in sup- port thereof. lb. A bill may be framed with a double aspect so that if the court decide against the complainant in one view of the case, it may afford him relief in another. Hobson v. McAithur, 16 Pet. 182-195, 10 L. ed. 930. But the alternative case stated must be the foundation of precisely the same relief. Shields v. Barrow, 17 How. 130-144, 15 L. ed. 158. In a suit to recover property procured by fraud the prayer of the bill may be in the alternative to recover the specific property or its value. Hubbard v. Urton, 67 Fed. R. 419-425. Such alternative relief may be sought by amendment to the bill. Hardin v. Boyd, 113 U. S. 756, 28 L. ed. 1141. The material facts on which plaintiff relies must be so distinctly alleged as to make an issue. Harding v. Handy, 11 Wheat. 103-121, 6 L. ed. 429. 31 482 EQUITY RULES [Rule XXV A party is not allowed to state one case in a bill or answer and ma;ke out a different one by proof; the allegata and probata must agree; the latter must support the former. Boone v. Chiles, 10 Pet. 177-209, 9 L. ed. 388. When facts are not charged in the bill they are not put in issue by the answer and the court can take no notice of the proofs, for the proofs to be admissible must be founded on some allegations in the bill and answer. Piatt v. Vattier, 9 Pet. 405, 9 L. ed. 173. The proofs must be according to the allegations of the parties. If the proofs go to matters not within the allegations the court cannot judi- cially act upon them as ground for its decision; for the pleadings do not put them in contestation. The allegata and the probata must recipro- cally meet and conform to each other. Story, J., in Harrison v, Nixon, 9 Pet. 503, 9 L. ed. 201. Where complainant alleged generally that he would be injured and prayed an injunction, Held, it was necessary he should state how he would be injured, since chancery does not deal with abstractions or contingencies, but with practical rights and to prevent impending wrongs. Spooner v. McConnell, 1 McLean, 337, Fed. Cases, 13,245. A biU charging fraud should aver the facts relied on with sufficient particularity to warrant its conclusion and to apprise the defendant of what he must meet. Field v. Hartings & Bradley Co., 65 Fed. B. 279-280. A bill for a rescission or injunction must contain clear and positive allegations showing the equitable right of complainant to the relief asked. Post v. Beacon, etc., Co., 84 Fed. R. 371-373, 28 C. C, A. 431. Under the practice prior to the revision of the rules at the October Term, 1912, if a bill was used as evidence either on a motion for a pre- liminary injunction or in any other way, it must have been verified. Black V. Henry G. Allen Co., 42 Fed. R. 618. In patent cases it is not necessary to specify particulars of infringe- ment in a bill in equity; a general averment that the defendant has infringed is sufficient to put him upon answer. Turrell v. Cammerrer, 3 Fisher's Patent Cases, 462; Fed. Cases, 14,266. The following is the proper form of verification of a biD praying an injunction: I, A. B., the complainant (or one of the complainants) in the fore- going bill being first duly sworn, on oath do-say that I have read (or heard read) the above bill of complaint and know the contents thereof. lluleXXV] EatTlTY RULES 483 and that the allegations therein contained are true of my own knowl- edge, except as to matters which are therein stated to be on informa- tion and belief, and as to those matters I believe and have good reason to believe them to be true. A. B. Sworn to and subscribed before me at , the day of , A. D. 19—. Notary Public. My commiBsion expires . Under the rules in force prior to the revision promulgated Novem- ber 4, 1&12, HeU, under a prayer for general relief only such relief as the facts stated in the bill and sustained by the proof would justify, could be granted. Hobson v. McArthur, 16 Pet. 182-195, 10 L. ed. 930. Where specific relief is prayed the court cannot grant a relief which is inconsistent with or entirely different from that prayed, even if there is a prayer for general reUef. Wilson v. Graham, 4 Wash. C. C. 53; Fed. Cases, 17,804. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held, under the prayer for general relief other relief might be granted than that which was particularly prayed for, but such relief must be agreeable to the case made by the bill. English v. Foxall, 2 Pet. 595, 7 L. ed. 531. A prayer for general relief is a prayer for any relief the cdurt can give upon the facts averred in the bill (except by injunction). Chicago, etc., R. Co. V. Macomb, 2 Fed. R. 18-21. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held, under the prayer for general relief the court would often extend the relief beyond the specific prayer, and not exactly in accordance with it. Walden v. Bodley, 14 Pet. 156-164, 10 L. ed. 398. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held, though not entitled to the relief specifically prayed for, other relief consistent with the facts averred and proved might be granted under the general prayer. Moore v. Mitchell, 2 Woods, 483; Fed. Cases, 9,770. Under the rales in force prior to the revision promulgated Novem- ber 4, 1912, Held, a prayer for general relief covered and included a prayer for specific performance. Tayloe v. Merchants' F. Ins. Co., 9 How, 390-406, 13 L. ed. 187. 484 EQUITY RULES [Rule XXV Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, in a proceeding in admiralty, Held, that under a prayer for general relief damages might be awarded. Penhallow v. Doane, 3 Dall. 54-86, 1 L. ed. 507. In a suit for general administration of a trust by foreclosure, where classification of liens and preferences takes place, the usual strictness of pleading is not required of intervenors asserting claims or payment. Blake V. Pme Mountain, etc., Co., 76 Fed. R. 624r-638, 22 C. C. A. 430. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held, a petition "by way of cross-bill" which makes nobody defendant, nor prays for process, and on which no process was obtained is a nuUity. Washington Railroad v. Bradleys, 10 Wall. 299-303, 19 L. ed. 894. In a suit concerning the wife's property, where the wife in the plead- ings is treated as the party in interest, the biU being sworn to by her, the husband's name may be used as her next friend. Bien v. Heath, 6 How. 228-239, 12 L. ed. 416. Where the wife complains of the husband and asks relief against him she must use the name of some other person in prosecuting the suit, but where the acts of the husband are not complained of, he would seem to be the most suitable person to unite with her in the suit. lb. 240. Whether the husband is joined with the wife, or she sues by him as her next friend, is a matter of practice, within the discretion of the court. 76.240. A married woman must sue and be sued jointly with her husband, unless she claims a right in opposition to him, in which case her next friend with her consent may exhibit a bill in her behalf, and her husband be made a party defendant. Taylor v. Holmes, 14 Fed. R. 498-513. The husband may be permitted to join with the wife, although there is no prayer for his relief. Douglas v. Butler, 6 Fed. R. 228. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held, under old Rule 90 that where it was consistent with the local circumstances and State laws governing the rights of married women, it was proper to allow a married woman to maintain a suit in her own name for infringement of a patent, without joinder of her husband. Lorrilard v. Standard Oil Co., 2 Fed. R. 902-904. The writ of ne exeat may be granted without a special prayer for it in the bill; it may be granted in the decree under the general prayer, or upon petition either before or after decree, on facts shown. Lewis V. Shainwald, 48 Fed. R. 492-500. Rule XXVI] EQITY RULES 4g5 Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held, the limitation of former Rule 21 only applied where the writ was asked for "pending the suit." Ih. 500. Held, the District Court (as distinguished from the judge) had au- thority to issue the writ. 76. 601. Under sec. 2 of the Bankruptcy Act of 1898, a District Court has power to issue the writ. In re Lipke, 98 Fed. R. 970. Under sec. 717, Rev. Stats, (sec. 261, Judicial Code), U. S. Comp. Stats. 1901, p. 680, the writ is not to be issued "unless a suit in equity is com- menced." lb. 972. Where the averments of the biU that the defendant intends to depart out of the jurisdiction of the court are upon information and belief and have been denied by the answer the writ should not be granted. Shainwald v. Lewis, 46 Fed. R. 839. Rule XXVI — Joinder of Caiises of Action The plaintiff may join in one bill as many causes of action, cognizable in equity, as he may have against the defendant. But when there is more than one plaintiff, the causes of action jomed must be joint, and if there be more than one defendant the liabihty must be one asserted against all of the material defendants, or sufficient grounds must appear for uniting the causes of action in order to promote the con- venient administration of justice. If it appear that any such causes of action cannot be conveniently disposed of together, the court may order separate trials. A new rule promulgated November 4, 1912. Decisions Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held, it was impossible to lay down any general rule as to multifariousness. Every case must be governed by its own circum- stances. The court must exercise a sound discretion on the subject. Gaines v. Chew, 2 How. 619-642, 11 L. ed. 619. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held, the rule against multifariousness was founded on convenience and must be applied to the circumstances of each case. McLean v. Lafayette Bank, 3 McLean, 416; Fed. Cases, 8,886. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held, whether a bill was multifarious was largely a matter of 486 EQUITY aXJLES [RuleXXVII discretion, and a decision overruling an objection to a bill on that ground would not be reviewed on appeal. Ulman v. Jaeger, 67 Fed. B. 980-985. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held, multifariousness arose from the fact that the trans- actions which form the subject-matter of the suit are so dissimilar and separate that they cannot conveniently be tried together on one record, or because some defendant is able to say, as to a large part of the trans- actions set out in the bill, he has no interest or connection whatever. Barcus v. Gates, 89 Fed. R. 783-791, 32 CCA. 337. The reasons why bills are deemed multifarious and the inconvenience they occasion. Hayes v. Dayton, 8 Fed. B. 703. The case against one defendant may be so entire as to be incapable of being prosecuted in several suits, yet some other defendant may be a necessary party to some portion only of the case stated. It is not indispensable that all the parties should have an interest in all the matters contained in the suit; it wiU be sufficient if each party has an interest in some material matter in the suit and they are connected with the others. Brown v. Guarantee T. and Safe Deposit Co., 128 U. S. 403-410, 32 L. ed. 470, Oct. T., 1888. There can be no misjoinder of causes of action in equity in any bill which presents a common point of litigation which affects the entire subjeot-tnatter and the decision of which will settle the rights of all the parties to the suit. lb. 412. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held, objections that a bill was multifarious must be made before answer and could be tested only by the structure of the biU itself. Nelson v. Hill, 5 How. 127, 12 L. ed. 81. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held, objections for multifariousness could not be taken by exceptions. They could be taken only by demurrer, plea, or answer before hearing, but the court might itself take the objection at any time, at the hearing or otherwise. Oliver v. Piatt, 3 How. 333-412, 11 L. ed. 622. Where objection of multifariousness is first made at the hearing, if the court can without serious embarrassment make a decree, it will do so and not countenance the objection. 7b. 412. Rule XXYU— Stockholder's Bill Every bill brought by one or more stockholders in a corporation against the corporation and otlier parties, founded on rights which may properly be asserted by the Rule XXVII] EQUITY KULES 487 corporation, must be verified by oatli, and must contain an allegation that the plaintiff was a shareholder at the time of the transaction of which he complains, or that his share had devolved on him since by operation of law, and that the suit is not a collusive one to confer on a court of the United States jurisdiction of a case of which it would not otherwise have cognizance. It must also set forth with particularity the efforts of the plaintiff to secure such action as he desires on the part of the managing directors or trustees, and, if necessary, of the shareholders, and the causes of his failure to obtain such action, or the reasons for not making such effort. Substantially the same as Rule 94 of the rulea in force prior to Feb. 1, 1913. Promulgated Jan. 23, 1S82, 104 U. S. IX. Decisions The corporation should be made a party to the suit, and a demurrer will lie if it is not so made, as any decree made should include the corpo- ration. Davenport v. Downs,' 18 Wall. 626-627, 21 L. ed. 96. To enable a stockholder of a corporation to sustain suit in equity in his own name in which the corporation itself is the appropriate plaintiff, on an action founded on rights existing in the corporation, it must ap- pear that there exists: (1) Some action or threatened action of the trustees of the corporation, beyond the authority conferred on them by the charter or source of organization; or (2) such a fraudulent trans- action, completed or threatened by its managers, either among them- selves or with some other party, or other shareholders, as will result in a serious injury to the corporation, or to other shareholders; or (3) that the directors, or a majority of them, are acting for their own interests in a manner destructive to the company, or of the rights of the other shareholders; or (4) that the majority of the shareholders are illegally and oppressively, in the name of the corporation, pursuing a course in violation of the rights of the other shareholders which can only be re- strained by a court of equity, or possibly, (5) other cases where the court may properly act to prevent irremediable injury or a total failure of justice. Hawes v. Oakland, 104 U. S. 450-460, 26 L. ed. 827. Before a shareholder is permitted in his own name to institute litiga- tion in which the corporation itself is the appropriate plaintiff, he should satisfy the court that he has exhausted all the means within his reach, to obtain by the corporation itself adequate redress. 76. 460-461. If he fails with the directors, he must seek to obtain action by the stockholders as a body. lb. 461. Before a stockholder can maintain an action to restrain or annul an illegal act by th? directors of a corporation, he must exhaust all his 488 EQUITY RULES [Rule XXVII means to obtain within the corporation itself, action in conformity with his reasonable requirements. Bill v. Western Union Tel. Co., 16 Fed. R. 14^18. Unless under judicial restraint or compulsion, to the board of directors belongs the sole power to determine whether or not to bring suit for a supposed injury to a corporate right. United States v. U. P. R. R. Co., 98 U. S. 569-611, 25 L. ed. 153, Oct. T., 1878. Courts of equity have jurisdiction over corporations at the instance of one or more stockholders to apply preventive remedies to prevent those who administer them from doing acts which amount to a violation of charters and to prevent misapplication of their capital or profits, if the actfi a,mount to a breach of trust. Dodge v. Woolsey, 18 How. 331- 341, 15 L. ed. 401. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held, that where five of the seven directors who participated in the original conspiracy were stiU members of the directory, and it was claimed that it would be useless to apply to them to undo the wrong inflicted on the corporation, it was not an excuse for failure to make the efforts required by Rule 94. Church v. Citizens' St. R. Co., 78 Fed. R. 526-531. It is still required that an effort should be made to induce action by the body of the corporation, that is, by the stockholders. 7b. 531. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held, old Rule 94 applied to a bill brought by one or more stockholders founded on rights which may properly be asserted by the corporation. A suit instituted by stockholders and creditors against the corporation itself, alleging that its controlling officers are wrecking the corporation for their own private ends, being a suit to rescue the corpora- tion, is not within the inhibition of old Rule 94, and it is not necessary to show that plaintiff has endeavored to secure action on the part of the directors. Excelsior Pebble Phosphate Co. v. Brown, 74 Fed. B. 321- 323,20 0. C. A. 428. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held, old Rule 94 appUed only to bills brought by a stock- holder against the corporation and others founded on rights which may properly be asserted by the corporation; but did not apply to a suit brought by stockholders against the corporation and another not founded on such rights, where the officers of the corporation are joined for discovery merely, and no reUef is sought against them or to restrain any official action on their part. Leo v. Union Pacific Ry. Co., 17 Fed. B. 273-274. Rule XXVII] EQUITY RULES 489 Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held, no more technical compliance with Rule 94 was suffi- cient. The courts will inquire as to the stockholder's right to sue the corporation, and will determine from the bill in its entirety whether the plaintiff has made such a showing of wrong on the part of the corporation or its officers, and injury to himself as will justify the suit. Corbus v. Alaska Treadwell Co., 187 U. S. 455-463, 47 L. ed. 259, Oct. T., 1902. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held, where averments were made in the bill which brought the complainant within the requirements prescribed by old Rule 94, but which were plainly evasive and insufficient, and their utmost effect was to show a formal demand and a formal refusal, although the bill may aver that the suit is not a collusive one to confer jurisdiction, the bill may not be maintained unless there was the requisite diversity of citizenship. Old Rule 94 imposed upon the stockholder earnest and persistent effort to induce action by the officers of the corporation or the stockholders as a body. Elkins v. The City of Chicago, 119 Fed. R. 957- 959. Where the interests of the complainant as stockholder of the charter corporation are identical with those of the corpora,tion itself, such status is a bar to jurisdiction in the Federal court, based alone on diversity of citizenship, unless comphance with the Equity Rule appears in the allegations of the bill and saves the case from the general doctrine of alignment of parties. Though diverse citizenship of the parties may be properly arranged on the face of the bill to confer jurisdiction, it is the duty of the court to align them in conformity with their true in- terests, lb. 958. Where it is apparent that the refusal of the officers of the corporation which was made the basis of the suit is for the sole purpose of enabling the suit to be brought in the Federal court, a case of such absolute and unjustifiable refusal as is required by the Rule is not made out. Detroit V. Dean, 106 U. S. 537-541, 27 L. ed. 300. The Rule, except as to the provision concerning the verification of the bill by oath is in effect merely to prescribe what was the correct practice theretofore; it does not in anywise alter or modify any of the jurisdictional principles upon which a bill by a stockholder to enforce rights of the corporation should be founded, nor in any manner alter or modify the rules concerning the alignment of parties required to confer jurisdiction upon the Federal courts. Groel v. United Electric Co., 132 Fed. R. 252-257. In a bill by a citizen orf California, a stockholder of a gas company, against the city of Chicago and the gas company, citizens of Illinois, to 490 EQUITY RULES [Rule XXVII restrain the city from enforcing an ordinance fixing rates to be paid by consumers of gas; upon objection that upon a proper aHgnment of parties according to interest the gas company should be grouped with the complainant, Held, that the court had jurisdiction, although the company and the city were citizens of the same State. Mills v. City of Chicago, 127 Fed. R. 731-735. Where the stockholder's bill avers a demand upon the company, that it bring suit in the State court and that such demand was refused; upon demurrer these averments are admitted, and the court cannot deter- mine that the suit is collusive. lb. 735. The objection that suit by a stockholder brought under Rule 94 is collusive should be sustained by some fact pointed out in the record or by proper pleadings. 76. 735. The fact that other stockholders, majority or minority, are citizens of the same State as the corporation or their attitude to the controversy by contribution or otherwise, is not material to the reUef which the stockholder in a bona fide bill to restrain a breach of trust by the direc- tors, or other violation of corporate duty, is entitled, if the management of a corporation is adverse to the object of the bill, and is not in collusion with the complainant. New Albany Water Works v. Louisville Bank- ing Co., 122 Fed. R. 776-779, 58 CCA. 576. Where in a suit by a stockholder's bill the allegations of the answer simply amount to an averment that the stockholders, citizens of the same State as the corporation, induced the complainant to file the bill and are contributors to the expense, the suit is not shown to be collu- sive, where it appears that the controlling majority in the corporation is opposed to the objects sought in the bill, and that a demand upon the directors for action to obtain the reUef sought would be useless. lb. 779. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held, under Rule 94 when a stockholder's suit was between citizens of different States it was cognizable by the Federal courts and the fact that the corporation has the same ultimate interest as the com- plainant stockholder does not oust the jurisdiction of the Federal court nor require that the corporation be aligned on the same side as the com- plainant, if the stockholder's interests and the interests of the corpora- tion are being made subservient to illegal purposes by its managing officers. Doctor v. Harrington, 196 U. S. 579-587, 49 L. ed. 610, Oct. T., 1904. The Rule is only a means to an end, intended to bring to the knowl- edge of the court, on the institution of a suit, all the facts upon which it might be informed, of whether such suit did really and substantially involve the controversy within the jurisdiction of the court. Young v. AUiambra Mining Co., 71 Fed. R. 810-811. Rule XXVII] EQUITY RULES 491 A stockholder need not allege he has demanded that the directors bring suit, where such demand would require a suit among themselves, and the time in which remediable action may be taken had nearly ex- pired. 76.812. The bill must disclose the efforts of the plaintiff, not of others to secure redress in the ordinary mode, and he must state that he was a stock- holder at the time of the transaction of which he complains, or that his shares have since devolved upon him by operation of law. Dann- meyert). Holman, 11 Fed. R. 97-100. In a stockholder's suit it is sufficient to sustain the jurisdiction if it clearly appears by the allegations of the bill that the complainants are stockholders, that the suit is not a collusive one to secure jurisdiction, and that the corporation will not move in its own behalf. Price v. Union Lane Co., 187 Fed. R. 886, 110 C. C. A. 20-24. Where a corporation desires by means of an injunction out of the Federal court to restrain defendants from inducing its employees to strike, but is unable to institute suit in the Federal court for want of diversity of citizenship, it will not be allowed to create a condition of affairs that will make the Rule applicable, by coUusively refusing by its ofiieers and managers, a request of certain of its stockholders to institute suit in the Federal court, such stockholders knowing that the Federal court was without jurisdiction to entertain suit between such corpora- tion and the defendants, with the express purpose of enabling such stockholders to sue the corporation and the defendants sought to be restrained in the same suit in the Federal court. Kemmerer v. Hag- gerty, 139 Fed. B. 693-696. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held, the fact that plaintiff had not complied with Rule 94 so as to show his right to maintain the suit did not go to the jurisdiction so as tO' require a dismissal on affidavits. Illinois C. R. Co. t). Adams, 180 U. S. 28-35, 45 L. ed. 412, Oct. T. 1900. Held further: with few exceptions the only facts required to vest jurisdiction in the Circuit Courts under the Act of Aug. 13, 1888 (Mar. 3, 1887), were that the plaintiff be a citizen of one State and the defendant of another, the amount in controversy be in excess of $2,000, and the defendant be properly served with process in the district where suit is brought, lb. 34. Under the rules in force prior to the revision promulgated Novem- ber 4, 191t2, HeU, Rule 94 did not apply to a case removed from a State oouft. If it is: shown anywhere in such suit in the entire record that a corporation will not proceed to vindicate its right, a shareholder may be 492 EQUITY EULES [Rule XXVIII allowed to prosecute the suit after it has beea removed. Evans v. Union Pacific Ry. Co., 58 Fed. R. 497-500. A bill brought in the State court and removed into a Federal court is not insufficient because of failure to set forth therein the effort of complainant to secure previous action by the officers of a corporation. Old Rule 94 had reference solely to suits commenced in the Federal courts. Earle v. Seattle L. S. & E. Ry. Co., 56 Fed. B. 909-915. Rule XXYIll— Amendment of Bill as of Course The plaintiff may, as of course, amend his bill before the defendant has responded thereto, but if such amendment be filed after any copy has issued from the clerk's office, the plaintiff at his own cost shall furnish to the solicitor of record of each opposing party a copy of the bill as amended, unless otherwise ordered by the court or judge. After pleading filed by any defendant, plaintiff may amend only by consent of the defendant or leave of the court or judge. The rule appears to be a substitute for Rules 28, 29 and 30 of the Rules adopted March 2, 1842. Decisions An amendment is not required in order to set out in the bill that which may be used simply as evidence to establish a fact or facts put in issue by the pleadings. Southern Pac. Ry. v. United States, 168 U. S. 1-57, 42 L. ed. 355. Under the rules prior to the revision at Oct. Term, 1912, Held, that Rule 28 had no application to a motion to amend after a demurrer to the whole bill had been sustained. It applied only where leave was asked before a demurrer was allowed. Mercantile N. Bk. v. Carpenter, 101 U. S. 567-568, 25 L. ed. 816. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held, under former Rule 28, before plaintiff could claim any benefit of an amendment, he must pay the costs occasioned, and furnish the copies required by the rule. If he failed so to do, by the withdrawal of an amendment he left the case to stand as though no amendment had been attempted. Sheffield v. WiUirow, 149 U. S. 574-576, 37 L. ed. 853. Amendments which amount in effect to the institution of a new suit, will not be allowed. Goodyear v. Bourn, 3 Blatchf. 268; Fed. Cases, 5,561. RuleXXVIII] EQUITY RULES 493 A complainaat is not at liberty to abandon the entire case made by his bill and make a new and different case by way of amendment. Shields v. Barrow, 17 How. 130-144, 15 L. ed. 158. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held, if the statute of limitations was set up in bar, plaintiff must amend his bill if it contained no suitable allegations to meet the bar. Piatt v. Vattier, 9 Pet. 405-416, 9 L. ed. 173. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held if the answer set up a defense which the complainant wished to avoid he must amend his bill, as under former Rule 45 special replication was not permitted. Wilson v. Stolley, 4 McLean, 272; Fed. Cases, 17,839. Where a defense is made to a bill which the complainant could not foresee, an amendment may be allowed thereafter. Wharton v. Lowrey, 2 Dallas, 364, 1 L. ed. 417. Complainant is bound by an admission of fact contained in his bill, and cannot in argument urge that the fact is otherwise. He should amend his bill before the hearing. Prevost v. Gfatz, 3 Wash. C. C. 434; Fed. Cases, 11,407. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held an amendment would not be allowed to the bill after answer and replication were filed, and depositions taken, unless upon a showing that the amendment could not earlier have been made. Ross V. Carpenter, 6 McLean, 382; Fed. Cases, 12,072. An amendment should not be allowed, seeking to introduce a new party to the bill, whose interest was known when the bill was filed. 76. Under former Rule 28 the plaintiff was entitled to amend his bill as a matter of course before answer, plea, or demurrer filed, and although amended in a material matter, it was not necessary that the amendment proposed should be supported by affidavit. A bill in equity is not re- quired to be sworn to unless it is sought to be used in evidence upon application for a provisional injunction or the like. Chase Electric Const. Co. V. Columbia Const. Co., 136 Fed. R. 699. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held, it was a gross irregularity to hear a cause upon an amended bill filed after replication without leave of the court. Wash. Ry. V. Bradleys, 10 Wall. 299, 19 L. ed. 894. The defendant, if without laches, might move to strike such bill from the files. lb. 4d4 EQUITY RULES tRule XXIX Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held, where at a hearing it appeared that a motion to amend the bill was made, and that the faets and the answer made out a case for relief, but a case different from the one stated in the bill, but that the amendment did not change the subject-matter of the bill, the motion should be granted, where the purposes of justice would be thus subserved. Battle v. Mutual Life Ins. Co., 10 Blatchf. 417; Fed. Cases, 1,109. Where an amended bill refers to an original bill, and makes the same a part thereof, all the parties named in the original bill are parties to the amended bill, although not particularly named therein, where the bill prays that the parties defendant to the original bill be made de- fendants to the amended bill. Empire Coal Co. v. Empire Mining Co., 150 U. S. 159-163, 37 L. ed. 1039. New process is not necessary on an amended bill, as the defendant is already before the court. Being in court he is bound to take notice of the filing of such bills, as of any other proceedings in the case. French - V. Hay, 22 Wall. 238-247, 22 L. ed. 801; Longworth v. Taylor, 1 McLean, 514; Fed. Cases, 8,491. Where the trial court sustained exceptions to the answer, whereupon a final decree was entered in favor of plaintiff, which on appeal was reversed. Held, complainant was entitled to amend his bill, or file a repUcation to the answer as the parties then stood after error corrected as if they had then arrived at the point where the error occurred. Be Sanford Fork & Tool Co., 160 U. S. 250-258, 40 L. ed. 416, 417. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held, amendments regularly made under former Rule 29 would not be avoided by motion to strike the order allowing them from the record, or set it aside. Lichtenauer v. Cheney, 8 Fed. B. 876. Rule XXIX — Defenses — How Presented Demurrers and pleas are abolished. Every defense in point of law arising upon the face of the bill, whether for misjoinder, nonjoinder, or insufficiency of fact to constitute a valid cause of action in equity, which might heretofore have been made by demurrer or plea, shall be made by motion to dismiss or in the answer; and every such point of law going to the whole or a material part of the cause or causes of action stated in the bill may be called up and disposed of before final hearing at the discretion of the court. Every defense hereto- RuleXXlX] EQt)lTY RULES 495 fore presentable by plea in bar or abatement shall be made in the answer and may be separately heard. and disposed of before the trial of the principal case in the discretion of the court. If the defendant move to dismiss the bill or any part thereof, the motion may be set down for hearing by either party upon five days' notice, and, if it be denied, answer shall be filed withm five days thereafter or a decree pro confesso entered. The Rule appears to be a substitute lor Rules 31 to 38, inclusive, of the Roles adopted March 2, 1842. Decisions The court may of its own motion dismiss a bill because it fails to state facts sufficient to give any right to relief. Fougeres v. Jones, 66 Fed. B. 316-317. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held, a bill might be dismissed by the court of its own motion where it omitted the proper allegation of citizenship in the intro- ductory part, and where the prayer for subpoena did not contain the names of the defendants. City of Carlsbad v. Tibbetts, 51 Fed. B. 852. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Hdd, in general, if a demurrer would hold to a bill the court would not grant relief, though the defendant answered. Baker v. Biddle, 1 BaUw. 394; Fed. Cases, 764. An objection to jurisdiction for want of necessary parties, of equity in the bill or that there was a remedy at law need not be made by de- murrer, plea or answer; it might be made at the hearing or on appeal. n. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held, no defect of jurisdiction appearing on the record, the proper mode to avail of it, if it existed, was by plea. Fremont v. Merced Mining Co., 1 McAll. 267; Fed. Cases, 5,095. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held, objections to jurisdiction on the ground of citizenship must be presented by proper plea in abatement before the cause came to hearing on the merits. Nesmith v. CalVert, 1 Woodb, & M. 34; Fed. Cases, 10,123. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held, the exception to jurisdiction on the ground of citizen- ship must be taken by plea and not by answer. Wood v, Mann, 1 S,umn. 578; Fed. Cases, 17,952, 496 EQUITY RULES [Rule XXIX The want of proper parties is not a sufficient ground for dismissing the biU. Milligan «. Milledge, 3 Cranch, 220. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held, where the want of parties appeared on the face of the bill the objection might be taken by demurrer; where it did not so appear it must be made by plea or answer. Carey v. Brown, 92 U. S. 171-172, 23 L. ed. 469. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held, where it appeared on the face of the bill that the com- plainant was not entitled to relief because of laches or lapse of time, the objection might be taken by demurrer. Maxwell v. Kennedy, 8 How. 210-222; Natl. Bk. v. Carpenter, 101 U. S. 567-568, 25 L. ed. 815. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held, a bill which showed on its face that complainant's right was barred by the statute of limitations might be demurred to. Wisner v. Ogden, 4 Wash. C. C. 631; Fed. Cases, 17,914. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held, the usual averment in a foreclosure bill that the de- fendant claimed some interest in the mortgaged premises is to compel such defendant to answer. If it was not averred that such defendant owed any part of the debt or had any specific interest in the property he could not by demurrer object that complainant's suit was barred by laches or lapse of time. Carter v. Couch, 84 Fed. R. 735-738, 28 C. C. A. 520. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held, if on the face of the biU it appeared that a contract concerning land was not in writing, the defense of the statute of frauds might be taken by demurrer. Randall v. Howard, 2 Black, 585-589, 17 L. ed. 269. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held, where the bill alleged that the complainant was ignorant of the matters, the foundation of his suit, and that immediately on discovery thereof suit was brought, a demurrer on the ground of laches should be overruled. Uknan v. Jager, 67 Fed. B. 980-982. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held, as against a general demurrer, an allegation in a bill by way of recital was good, where the allegation admitted of but one inter- pretation and the essential fact appeared by necessary implication. Investor Pub. Co, v. Dobinson, 72 Fed. R. 603-605, Rule XXIX] EQUITY RULES. 497 Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held, where a bill charged acts of fraud and set up an agree- ment by defendant to execute a mortgage on real estate and averred a refusal, defendant could not by plea set up the statute of frauds, but was required to respond to the facts averred in the bill in support of complainant's equity. Bailey v. Wright, 2 Bond, 181; Fed. Cases, 749. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held, an action pending in a foreign jurisdiction could not be pleaded in abatement of an action commenced in a domestic forum, even if there were identity of parties, of subject-matter and relief sought. Radford t>. Folsom, 14 Fed. B. 97-98. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, defendants "appearing specially and solely for the pur- pose of this demurrer" as grounds therefor alleged that the court "has no jurisdiction over these defendants, because First: neither of these defendants is a citizen of Wisconsin, nor a resident of the eastern district thereof," and, second, "complainants have no interest on the subject matter of this suit." When demurrer overruled and appeal taken. Held, when appellants added to their challenge of the court's jurisdiction over their persons a further challenge of the court's jurisdiction over the subject-matter they did not thereby convert their special appearance into a general appearance and submit to the jurisdiction of the court. Kelley v. T. L. Smith Co., 196 Fed. 466, 116 CCA. 240. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held, by appearing generally the objection that one was not named as a defendant in the prayer for subpoena was waived. Buerk v. Imhaeuser, 8 Fed. R. 457. A defendant not named in the prayer for process could not object that others are omitted therefrom. lb. A decree dismissing a bill in a former suitj absolute in its terms, is an adjudication of the merits of the controversy, and constitutes a bar to any further litigation of the same subject between the same parties. Durant «;. Essex Co., 7 Wall. 107-109, 19 L. ed. 154. A decree of dismissal because of some defect in the pleading or for want of jurisdiction, or because the complainant has an adequate remedy at law, or upon some other ground which does not go to the merits, is not a final determination. lb. To avoid the bar upon dismission, words of qualification, such as "without prejudice," should be used. lb. It is the general practice where a bill in equity is dismissed without consideration of the merits, for the court to express in its decree that the dismissal is "without prejudice." If these words of qualification 32 498 EQUITY RULES [Rule XXIX are omitted by mistake they may in a proper case be corrected by the appellate court. lb. Under the rules in force prior to the revision promulgated November 4, 1912, Held, a decree under former Rule 38 dismissing complainant's bill because of failure to reply to a plea^ or set it down for argument, was not conclusive, since all the authorities agree that in order to constitute the former judgment a bar, it must appear that the point in issue was judicially determined after a hearing and upon consideration of the merits. Keller v. Stolzenbach, 20 Fed. B. 47. An order of dismissal is a bar only where the court has determined that the plaintiff had no title to the relief sought by his bill. Whenever a bill is dismissed without a hearing and without any consideration of the merits the dismissal is in the nature of a nonsuit at law, and is no bar, because the matters in controversy are not thereby judicially determined. Clark v. Bernhard Mattress Co., 82 Fed. B. 339-340. If the first suit was dismissed for defect of pleadings, or a misconcep- tion of the form of proceeding, or for the want of jurisdiction, the judgment rendered wiU be no bar to another suit. Hughes v. United States, 4 Wall. 232-237, 18 L. ed. 305, Dec. T., 1866. A decree dismissing a bill in equity generally may be set up in bai of a second bill, having the same object in view; but where the bill is dismissed on the ground of want of jurisdiction, or where the com- plainant dismisses his bill, the dismission is not a bar to another suit. Walden v. Bodley, 14 Pet. 156-161, 10 L. ed. 400, Jan. T., 1840. Where a suit is dismissed for a defect in pleading, by reason of which the court's jurisdiction fails to appear, the dismissal is not a bar to a second suit. Smith v. McNeal, 109 U. S. 426-430, 27 Lred. 987, Oct. T., 1863. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held, where after replication a bill was dismissed on motion of the complainant it was no bar to a subsequent bill for the same cause. Grubb V. Clayton, 2 Hayw. 378; Fed. Cases, 5,849o. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held, where defendant filed a demurrer and a plea to the bill and the plea was not replied to, nor it and the demurrer set for argu- ment, the court said, if the bill were dismissed for this failure, under former Rules 33 and 38 such dismissal would not operate as res judicata; that a judgment on demurrer would not, and a fortiori a judgment for not following a rule of court, would not have this effect. Ryan v. Seaboard & R. R. Co., 89 Fed. B. 397-403. kuleXXlX] EQtriTY RULES 499 Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held, where it appeared by the plea in bar that a former suit had been dismissed on motion of defendants made after filing a demurrer to the bill, and after the expiration of the time in which under the rules, the complainant could set down the demurrer for argument, Held, the plea set up a dismissal for want of prosecution and was no bar to a new suit. Whitaker v. Davis, 91 Fed. R. 720-721, 34 C. C. A. 61. Held, further, that in order to set up by plea that the legal effect of a dismissal under former Rule 38 was the sustaining of the vaUdity of the demurrer filed in the former suit, the plea should show by proper aver- ments that the former judgment determined the rights set up in the new suit, and hence should set out what was involved and decided in the former suit. /&. 721. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held, though it appeared the first judgment was on demurrer it would be a bar to a subsequent suit, for it is settled law that it makes no difference in principle whether the facts were proved or were admit- ted; the admission even if by way of demurrer to a pleading was just as available to the opposite party as if the admission were made ore terms before a jury. Gould v. Evansville, etc., R. R. Co., 91 V. S. 526-534, 23 L. ed. 419, Oct. T., 1875, a case at law. If the plaintiff failed on demurrer in his first action from the omission of an essential allegation in his declaration which was fully supplied in ' the second suit the judgment in the first suit was no bar for the enforce- ment of the same right. 76. 534. In a suit at law where the judgment in the former action is upon demurrer to the declaration the estoppel extends only to the exact point raised by the pleadings or decided; if the judgment be upon pleadings and proofs the estoppel extends to all that was necessarily involved in the issue. Wiggins Ferry Co. v. Ohio, etc., Co., 142 U. S. 396-414, 35 L. ed. 1061, Oct. T., 1891. Where a dismissal had been taken by complainant, if it subsequently appeared that the dismissal was under a mistake and inequitable to any defendant, it might be revoked, if appUcation was seasonably made. lb. 849. Where the case has been dismissed if the court shall afterward dis- cover that the supposed equitable ground upon which the order was based did not exist, it has the right to recall its order of dismissal so long as it retains control of the case. lb. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held, when dismissal of the former bill was pleaded in bar, the record should be exhibited, as the matter is not responsive but affirmative matter of defense. Bank v. Beverly, 1 How. 134-151, 11 L. ed. 32. 500 EQUITY RULES [Rule XXIX Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held, where counsel who appeared specially to challenge the jurisdiction of the court over the person of the defendant combined with his motion or plea to the jurisdiction of the court over his person a plea to the jurisdiction of the court as a court of equity it was not a waiver of insistence upon the special plea to the jurisdiction over the person. Southern Pacific Co. v. Arlington Heights Fruit Co., 191 Fed. R. 101, inc. 0. A. 581. Held further when the defendant appeared specially for the express purpose of challenging the jurisdiction of the court over the person for want of proper service, or upon the ground the venue was not laid in his judicial district, although he combined in his motion or plea to the jurisdiction, matter going to the subject of the suit or action he did not thereby waive jurisdiction over his person. The purpose of the defend- ant's defense is to be gathered from the nature of his appearance. 76., p. 590. Under the rules in force prior to the revision promulgated November 4, 1912, Held, a rule of court which prescribed that if a party appeared specially he must stipulate that he will appear generally if the purpose for which the special appearance was made is not approved by the court, was inconsistent with the laws of the United States and its adoption by a Circuit (District) Court was not authorized by sec. 918, Rev. Stats. (U. S. Comp. Stat. 1901, p. 685.) Davidson Marble Co. v. Gibson, 213 U. S. 10, 53 L. ed. 675. A party who is sued in the wrong district and does not waive the objection, may of right appear specially and object to the jurisdiction of the court and, the decision being against his objection, may of right bring the question directly to the Supreme Court. 76., p. 18. Note. In this case the objection to the jurisdiction of the Circuit Court was made both by demurrer and by motion to quash the service and dismiss. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held, when the bill set out a foreign grant of letters an an- swer denying all the allegations of the bill was sufficient to enable de- fendant to contest the right to sue. So held at the hearing. Nulls v. Knapp, 39 Fed. R. 592. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held, a cause could not be dismissed as of course except under former Equity Rule 66. Gregory v. Pike, 67 Fed. R. 837-847, 15 C. C. A. 33. tluieXXX] EQUITY RULES 501 Rule XXX — Answer — Contents — Counter-Claim The defendant in his answer shall in short and simple terms set out his defense to each claim asserted by the bill, omitting any mere statement of evidence and avoiding any general denial of the averments of the bill, but specifically admitting or denying or explaining the facts upon which the plaintiff relies, unless the defendant is without knowledge, in which case he shall so state, such statement operating as a denial. Averments other than of value or amount of damage, if not denied, shall be deemed confessed, except as against an infant, lunatic or other person non compos and not under guardianship, but the answer may be amended, by leave of the court or judge, upon reasonable notice, so as to put any averment in issue, when justice requires it. The answer may state as many defenses, in the alternative, regardless of consistency, as the defendant deems essential to his de- fense. The answer must state in short and simple form any counter-claim arising out of the transaction which is the subject-matter of the suit, and may, without cross-bill, set out any set-off or counter-claim against the plaintiff which might be the subject of an independent suit in equity against him, and such set-off or counter-claim, so set up, shall have the same effect as a cross-suit, so as to enable the court to pronounce a final judgment in the same suit both on the original and cross-claims. The rule appears to b^ a substitute for Rules 39 to 44, inclusive, of the Rules adopted March 2, 1842. Decisions Defendant cannot make out one case in his answer and a different one by proof. Boone v. Chiles, 10 Pet. 177-209, 9 L. ed. 388. The answer of an agent is not evidence against his principal, nor are his admissions in pais unless they are a part of the res gestm. Leeds V. Marine Ins. Co., 2 Wheat. 380-383, 4 L. ed. 266. The answer of the attorney is not the answer of defendant himself. Read v. Consequa, 4 Wash. C. C. 174; Fed. Cases, 11,606. The answer of one defendant is not evidence in behalf of another defendant. Morris a. Nixon, 1 ffow). 118, 11 L. ed. 69. , 602 teQUITY RULES [RuleXXX Where one defendant succeeds to another, so that the right of one devolves on the other, and they become privies in estate, the answer of the one defendant may be read in evidence against the other. Os- borne V. Bank, 9 Wheat. 738-832, 6 L. ed. 204. The rule does not apply where all the defendants are partners in the same transaction. Van Reimsdyk v. Kane, 1 Gall. 630; Fed. Cases, 16,872. Denials or admissions in an answer should be specific and direct; it is not enough to allege that every allegation of the bill not expressly admitted is denied. Holton v. Guinn, 65 Fed. R. 450. All the material allegations of the bill must be answered, and either admitted or denied. If defendant has no knowledge as to any fact alleged, he ought to state what his beUef is on the subject if he has any; if he has none and cannot form any, he ought to say so, and call on plaintiff for proof of the alleged facts, or waive that branch of the con- troversy. Brown v. Pierce, 7 Wall. 205-211, 19 L. ed. 134. The allegations of the bill may be denied in part and admitted in part, but the defendant is not at hberty to ignore any. Common- wealth, etc., Co. V. Cummings, 83 Fed. B. 767-768. A denial that authority to do an act was given is not a sufficient answer to an averment of such authority unless subsequent assent thereto is also denied. Clark v. Van Riemsdyk, 9 Cranch, 153-161, 3 L. ed. 688. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held, defendant could not in his answer introduce new matter in the nature of a cross-bill and require the plaintiff to answer it. Morgan v. Tipton, 3 McLean, 339; Fed. Cases, 9,809. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held, on a hearing on bill and answer, allegations of new matter in the answer were to be taken as true. Banks v. Manchester, 128 U. S. 244-251, 32 L. ed. 425. , The defendant is bound by the admissions in his answer though he did not read it. Putnam v. Day, 22 Wall. 60-64, 22 L. ed. 764. If the answer neither admits nor denies the allegations of the bill it must be proved. Goring v. Grundy, 6 Cranch, 51, 3 L. ed. 149. A corporation answering under its corporate seal can be compelled to answer fully. Gamewell, etc., Co. v. Mayor, etc., 31 Fed. R. 312; Colgate V. Campagnie Francaise, 23 Fed. R. 82. Rule XXX] EQUITY RULES 603 Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held, where the facts charged in the bill were clearly and positively denied by the answer, if uncontradicted, the answer was conclusive evidence. Lenox v. Prout, 3 Wheat. 520-527, 4 L. ed. 499; Vigel V. Hopp, 104 U. S. 441, 26 L. ed. 765. Under the rules in force prior to the revision promulgated Novem- ber 4j 1912, Held, where the facts charged in the bill were proved by only a single witness, who was supported and corroborated by circum- stances, the denial by sworn answer might be overcome. Union Bank v. Geary, 5 Pet. 99-111, 8 L. ed. 60. Where the answer admits a fact, but insists on matter of avoidance, the complainant need not prove the fact admitted, but defendant must prove the matter in avoidance. Clarke v. White, 12 Pet. 178-190, 9 L. ed. 1046. When the answer replied to admits a fact and insists on a distinct fact by way of avoidance the fact admitted is established but the fact in- sisted on must be proved, otherwise the admission stands as if the fact in avoidance had not been averred. Clements v. Nicholson, 6 Wall. 299, 18 L. ed. 789. Also cited as Clements v. Moore. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, HM, if the answer relied upon new matter in avoidance not responsive to the bill, defendant must establish it by proof; the answer as to such matter is not evidence. Randall v. Phillips, 3 Mason, 378; Fed. Cases, 11,555. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held, where the answer neither admitted nor denied material allegations of the bill, complainant must prove his averments. Rogers V. Marshall, 13 Fed. R. 59-64. Where charges of fraud are made on information and belief and the only evidence to support them is the similarity of names, such charges are not sustained. Monroe Cattle Co. v. Becker, 147 U. S. 47-^5j 37 L. ed. 72. By the former practice prior to the revision at the October Term, 1912, when defendant in his answer denied knowledge, information or belief, as to an allegation of the bill "wherefore he denies the same" the answer was not evidence requiring two witnesses to overcome. The Holiday Case, 27 Fed. R. 830. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held, where the answer was responsive to the bill to entitle 504 EQUITY RULES [Rule XXX the plaintiff to relief, the allegations therein must be sustained by the testimony of two witnesses or of one witness and corroborating cir- cumstances. Vigell V. Hopp, 104 U. S. 441-442, 26 L. ed. 765. An answer which neither admits nor denies matters alleged in the bill may have a tendency to prove the allegations in the bill. Under the rules in force prior to the revision promulgated November 4, 1912, Held, such an answer made it necessary to introduce only one witness to over- come the defense. Pierce v. Brown, 7 Wall. 205-211, 19 L. ed. 136. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held, matter alleged in the bill which the answer neither denied nor avoided must be proved; as former Rule 61 provided that if no exception to the answer be filed within the period prescribed the answer should be taken to be sufficient. lb. 211. Material allegations in the bill, ought to be answered and admitted or denied, if the facts are within the knowledge of respondent, and if not he ought to state what his belief is upon the subject, if he has any, and if he has none, and cannot form any, he ought to say so and call on complainant for proof of the alleged facts, or waive them; a mere statement of respondent that he has no knowledge that the fact is as stated, without any answer as to his belief concerning it, is not such an admission as is to be received as full evidence of the fact. lb. 211-212. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held, where the answer was not responsive to the bill and not sustained by other proof, the testimony of two witnesses was not required to overcome it. Seitz v. Mitchell, 94 U. S. 580-582, 24 L. ed. 179. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held, if a bill did not contain specific interrogatories the complainant must be satisfied with such answer to its allegations as fairly and substantially met them. The defendant is not bound to exercise ingenuity in finding out all the aspects in which a statement may be taken. Parsons v. Gumming, 1 Woods, 461; Fed. Cases, 10,775. If it was apparent that the defendant had omitted to answer any ma- terial allegation or had evaded giving an answer, or had answered dis- ingenuously, the court would compel him to file another answer. 76. Leave to amend an answer is in the discretion of the court. Applica- tions to reform an answer are viewed more favorably than if to substi- tute a new one, which is only allowed where the court is satisfied that the purposes of justice require it. Castor v. Wood, Bald. 289; Fed. Cases, 2,505. The court may examine into the facts averred, and also into the evi- dence abeady taken, if any, before granting leave to file an amended Rule XXX] EQUITY EULES 505 answer or answer and cross-bill. Richie ti. MacMullen, 79 Fed. R 522- 529, 25 C. C. A. 50. A material amendment of an answer changing the issues ought not to be permitted after the evidence is closed, unless it is made to appear in the evidence abeady offered, or a showing on affidavits that the de- fendant can probably sustain the new issues by proof. lb. 529. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, HM, after replication or setting the bill down for hearing, amendments were in the discretion of the court, which is not as easily moved to grant an amendment on material matters as before the issues are made up. Gubbins v. Laughtenschlager, 75 Fed. B. 615-619. After the master's report and exceptions thereon heard, amendments to the answer which are immaterial, or where the equities are entirely against the defendant's claims, will not be allowed. Hudson v. Ran- dolph, 66 Fed. B. 216-218, 13 C. C. A. 402. Courts are slow to allow amendment in material facts, or to change essential grounds taken in the original answer. Smith v. Babcock, 3 Summ. 583; Fed. Cases, 13,008. To support such application, they require very cogent circumstances, and such that wiU repel the idea of an attempt to evade the justice of the case, or to set up new defenses or subterfuges. lb. Where the new facts sought to be introduced are documentary the reason does not apply in full force. lb. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, HeM, former Rule 60 should be administered in analogy to the requirements of former Rule 29; and where it appeared that the matter of the proposed amendment could with reasonable diligence have been sooner introduced into the answer, leave to file should be denied. India R. C. Co. v. Phelps, 8 Blatchf. 85; Fed. Cases, 7,025. There are cases where amendments are permitted at any stage of the cause; but amendments which change the character of the answer so as to make a substantially new case, should rarely be allowed after the cause is set for hearing. Walden v. Bodley, 14 Pet. 156-160, 10 L. ed. 398. If the amended answer repeats the averments of the former answer, unless they vary the defense in point of substance, or are otherwise necessary, it will be considered as impertinent and, on reference, such parts should be struck out. Gier v. Gregg, 4 McLean, 202; Fed. Cases, 5,406. Where a supplemental answer contains not only the new matter' which the party has obtained leave to allege, but also other matter 506 EQUITY RULES [Rule XXX which was contained in a former answer, the amended answer may be ordered off the files on motion. Allis v. Stowell, 5 Fed. R. 203-205. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held, a plaintiff filing a bill in the Federal court could not set up as a defense in an answer to a cross-bill by the defendant, that a State court had acquired prior jurisdiction on bill brought in that court by the plaintiff in such cross-bill. Brandon Mfg. Co. v. Prime, 14 Blalchf. 371; Fed. Cases, 1,810. A cross-bill for relief as well as defense might make defendants, persons not parties to the original bill where they were necessary to complete relief. lb. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held, a cross-bill was properly filed to establish an equitable title to property, the legal title to which was in the complainant. lb. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held, a bill and cross-bill did not constitute one suit so that the service of subpoena on defendant in a cross-bill was unnecessary to bring them into court. Lowenstein v. Glidewell, 5 Dillon, 325; Fed. Cases, 8,575. Service of subpoena to answer a cross-bill could not be made upon the solicitor of the plaintiff in the original bQl. 76. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held further in the United States court there were two exceptions to this rule: (1) in cases of injunction to stay proceedings at law; (2) in cross-suits in equity, where the plaintiff at law in the first, and the plaintiff in equity in the second, case resided beyond the jurisdic- tion of the court. lb. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held, without the aid of a cross-bill a court was not au- thorized to decree against the complainant the opposite of the felief sought by the bill. Washington Raikoad v. Bradley, 10 Wall. 299-303, 19 L. ed. 894. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held, a cross-bill might be filed to establish an agreement or conveyance which the original bill sought to set aside. Carcochan v. Christy, 11 Wheat. 446-467, 6 L. ed. 516. Under the rules in force prior to the revision promulgated November 4, 1912, Held, where defendant is advised that the complainant is a mere nominal party, and that the real party is a citizen of the same State with the defendant, he might file a cross-bill for a discovery. Young v. Pott, 4 Wash. C. C. 521; Fed. Cases, 18,172. Rule XXXI] EQUITY RULES 507 Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held, where the final decree made was inconsistent with an interlocutory decree granting affirmative relief upon a cross-bill in the same suit, a right of appeal lies. Ex parte Raikoad Co., 95 U S 221- 225, 24 L. ed. 357. Where a petition is filed, or other pleading which has the same effect as if presented by a cross-bill, and the same is heard, and proofs taken thereon without objection, it will be held that the parties have assented to having their rights decided in such pleading, and the court will not require technical and formal proceedings, unless they are required by some fixed principles of equity law or practice which the court would not be at liberty to disregard. Coburn v. Cedar Valley L. Co., 138 U. S. 196-222, 34 L. ed. 876; Kelsey v. Hobby, 16 Pet. 269-277, 10 L. ed. 961. Though a corporation need not answer under oath, it is subject to discovery and must make it under seal. Monarch Vacuum Cleaner Co. V. Vacuum Cleaner Co., 194 Fed. R. 172. The answer of a corporation when verified by an officer was evidence under old equity rules, Held, it was not available to prove an affirmative defense. Seitz v. Mitchell, 94 U. S. 580-582, 24 L. ed. 179. Rule XXXI — Reply — When Required — When Cause at Issue Unless the answer assert a set-off or counter-claim, no reply shall be required without special order of the court or judge, but the cause shall be deemed at issue upon the filing of the answer, and any new or affirmative matter therein shall be deemed to be denied by the plaintiff. If the answer in- clude a set-off or counter-claim, the party against whom it is asserted shall reply within ten days after the filing of the answer, unless a longer time be allowed by the court or judge. If the counter-claim is one which affects the rights of other defendants they or their solicitors shall be served with a copy of the same within ten days from the filing thereof, and ten days shall be accorded to such defendants for filing a reply. In default of a reply, a decree pro confesso on the counter-claim may be entered as in default of an answer to the bill. A new Rule promulgated November 4, 1912. 508 iQUtTY EULES [Rule XXXII Decisions Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held, where a cause was set down for hearing on the bill and answer, no replication having been filed, the answer whether responsive or not, was to be taken as true, otherwise the defendant would be pre- cluded from proving the allegations which were only defensive. Lake Erie & W. R. Co. t). IndianapoHs Nat. Bank, 65 Fed. B. 690. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held, a decree must conform to the allegations of the bill as well as to the proofs. Where the answer which was proved made a complete defense to the averments of the bill and the complainants filed a special replication setting up new matter in avoidance of the answer, Held, that complainants should have amended their bill; that the act for regulating process in the Federal courts adopts in equity cases the principles, rules, and usages of the Court of Chancery of England by which a new case cannot be made in a replication to an answer in chancery. Vattier v. Hinde, 7 Pet. 252-274, 8 L. ed. 683, Jan. T., 1833. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held, all the allegations of the defendant's answer must be proved, since all new matter set up in the answer was denied by the filing of a general replication. Humes v. Scrubs, 94 U. S. 22-24, 24 L. ed. 51. Rule XXXII — Answer to Amended Bill In every case where an amendment to the bill shall be made after answer filed, the defendant shall put in a new or supplemental answer within ten days after that on which the amendment or amended bill is filed, imless the tiijae is enlarged or it is otherwise ordered by a judge of the court; and upon a default, the like proceedings may be had as upon an omission to put in an answer. An amendment of Rule 46 of the Rules adopted March 2, 1842. Decisions Under the rules in force prior to the revision promulgated November 4, 1912, Held, any amendment of a bill after answer authorized the defend- ant, though not required to answer, to put in an answer, and the defend- ant had the same time to answer that he originally had, in the absence of agreement or a rule of court. Nelson v. Eaton, 66 Fed. R. 376-378, 13 CCA., '523. Rule XXXIII] EQUITY RULES 509 Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held the general rule was that an amendment of the bill gave the defendant the right to answer as if he had not answered before. French v. Hay, 22 Wall. 238-246, 22 L. ed. 856. If the amendment introduces no new facts and the merits are not affected, plaintiff may proceed without answer to the amendment. Longworth v. Taylor, 1 McLean, 614; Fed. Cases, 8,491. Rule XXXIII— resiing Sufficiency of Defense Exceptions for insufficiency of an answer are abolished. But if an answer set up an affirmative defense, set-off or counter-claim, the plaintiff may, upon five days' notice, or such further time as the court may allow, test the sufficiency of the same by motion to strike out. If found insufficient but amendable the court may allow an amendment upon terms, or strike out the matter. A new Rule promulgated November 4, 1912. Decisions Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held, it was not sufficient foundation for an exception to an answer that a fact charged in the bill was not answered, unless the fact was material and might contribute to support the equity of the case made in the bill. Exceptions for insufficiency should not be sustained, unless there were some material allegation in the bill not therein fully answered. Hardeman v. Harris, 7 Hmv. 726-729, 12 L. ed. 890. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Heid, an allegation in the bill not noticed in the answer was to be proved by complainants in the absence of exceptions. Lovell v. Johnson, 82 Fed. R. 206. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held, an answer containing a substantive defense but not responsive to the plaintiff's allegations in his bill was not the subject of exceptions. Adams v. Bridgewater Iron Co., 6 Fed. R. 179-180. The objection by exceptions applied only to an insufficient discovery, or to scandal and impertinence. 76. 180. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held, an exception to an answer for insufficiency raised not 5i0 EQUITY EULES [Rule XXXIII the question of the suflSciency of the answer in point of law, but only the question as to whether sufficient discovery had been made by the defendant or the averments fully answered; if such complete answer had been made, exceptions to new matter therein would not he for insufficiency; if the sufficiency of an answer as a defense was to be tested the case must have been set down for hearing on bill and answer. Pennsylvania Co. v. Bay, 138 Fed. R. 203-206. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held, the only way in which the sufficiency of the answer (as a defense) to a bill in equity could be tested was by setting the case down for hearing on bill and answer. Grether v. Wright, 75 Fed. B. 742, 23 CCA. 498. Where a demurrer was filed to an answer without objection, it might be treated as an application to set down the cause on biE and answer, when all averments of fact properly pleaded in the answer were admitted by the complainant, and his right to test them by proof was waived. lb. 744. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held, further, an exception to the answer on the ground that certain allegations of the bill were not answered, admitted, or denied, should be sustained if the facts charged were material. /6. 728. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held, when the answer denied that the defendant had any knowledge of the facts alleged in the bill, but omitted to state that he had no information or belief as to those facts, it was good cause for exception. Bradford v. Geiss, 4 Wash. C. C. 513; Fed. Cases, 1,768. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held, filing of exceptions was not the only mode of testing the sufficiency or regularity of the answer. In certain cases these objections might be raised by motion to strike the answer fjpm the files. Allis V. Stowell, 5 Fed. B. 203-205. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held, exceptions for insufficiency should set out verbatim the charges in the bill (and the interrogatories relating thereto) to which the answer was responsive, and also the terms of the answer so as to point out to the court wherein it was insufficient. Brookes v. Byan, 1 Story, 296; Fed. Cases, 1,947. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held, exceptions for impertinence were only allowed, where th^e matter excepted to was not material or relevant, or was stated with needless prolixity. Although evasive, if it responded to any allegation Rule XXXIV] EQUITY BULBS 511 in the bill,- it might be insufficient, but was not impertinent. Chapman V. School District, Deady, 108; Fed. Cases, 2,607. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held, upon the hearing upon exceptions to an answer the facts alleged in the bill and in the answer were considered as admitted, and only matter of law was presented for decision, as in a case set down on bill and answer. Re Sanford fork & Tool Co., 160 U. S. 247-257, 40 L. ed. 417, Oct. T., 1895. Where, the exceptions to an answer were to its sufficiency to constitute a defense and no objection was made that such sufficiency should be questioned by setting the case down on bill and answer, if the exceptions were sustained the court cannot do more than order that a complete answer be put in, on pain of being held to have confessed the bill. 76. 258. If the answer be adjudged sufficient the complainant could not be deprived of the right to file a replication thereto. lb. 258. RxjLE XXXIV — Supplemental Pleading Upon application of either party the court or judge may, upon reasonable notice and such terms as are just, permit him to file and serve a supplemental pleading, alleging ma- terial facts occurring after his former pleading, or of which he was ignorant when it was made, including the judgment or decree of a competent court rendered after the commence- ment of the suit determining the matters in controversy or a part thereof. Apparently a substitute for Rules 56 and 57 of the Eules adopted March 2, 1842. Decisions Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held, where in consequence of an act performed by himself after commencement of suit, a person becomes a necessary party, the proper proceeding to bring him into court was an original bill in the nature of a supplemental bill. Winter v. Ludlow, 16 Leg. Int. 332; Fed. Cases, 17,891. Under the r.ules in force prion to the revision promulgated Novem- ber 4, 1912, Held, a supplemental bill might be filed at any stage of the cause. Parkhurst v. Kinsman, 2 Blatchf. 72; Fed. Cases, 10,758. Under former Rule 67 the application for leave to file could not be de- feated by showing that the petition did not make a case for equitable relief. lb. 512 EQUITY RULES [Rule XXXIV Held, the petition need not embrace the averments intended to be inserted in the supplemental bill, but need only advise the court and the opposite party, whether probable cause exists for the new proceedings. lb. The court may deny leave to file a supplemental bill, yet permit an amendment of the original bill. lb. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held, a supplemental bill will not be allowed merely to enable the complainant to drop some of the defendants to the original bill, when such change of parties is not essential. Musgrove v. Kountze, 14 Fed. R. 315-318. Leave to file will not be given after a decree, where the purpose is to set up matters which might with due diligence have been pleaded by way of amendment in the original suit. lb. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held, no new evidence is sufficient foundation for a supple- mental bill unless it be of such nature that, if unanswered, it would re- quire a reversal of the decree. Jenltins v. Elridge, 3 Story, 299; Fed. Cases, 7,267. After an interlocutory decree upon prayer to file a bill in the nature of a bill of review for the purpose of presenting newly discovered evi- dence and matters which have arisen pendente lite. Held, if the petition was maintained at all, it should be for leave to file a supplemental bill to bring forward new evidence and for a rehearing, when the supple- mental bill should also be ready for hearing. 76. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held, any material fact which has arisen since the filing of the original bill should be supplied by supplemental bill. Copen v. Flesher, 1 Bond, 440; Fed. Cases, 3,211. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held, in any case of the purchase or transfer of an interest pendente lite, a supplemental bill may be filed by or against the pur- chasers. Hoxie V. Carr, 1 Sum. 173; Fed. Cases, 6,802. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held, leave to file a supplemental bill to introduce newly dis- covered matter should not be allowed when it appears that the new facts or circumstances were known to complainant when the original bill was filed. City of Omaha v. Redick, 63 Fed. B. 1-5, 11 C. C. A. 1. Nor does the happening of anything, which if known at the date of the entry of the interlocutory decree would not have led to any modifi- cation in its terms, entitle a party to file a supplemental bill. lb. 5. Rule XXXIV] EQUITY RULES 513 Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held, a defective original bill which afforded no ground for proceeding upon it could not be sustained by filing a supplemental bill founded upon matters which had subsequently taken place. Putney v Whitmire, 66 Fed. B. 385-388. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held, if the original bill was well founded a supplemental bill might be filed upon facts which have occurred subsequently show- ing a right to further and similar relief. New York, S. & T. Co. v. Lincoln St. Ry. Co., 7i Fed. R. 67-68. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held, a supplemental bill might be maintained even if the citizenship of the parties would oust jurisdiction of an original biU. Miller v. Rogers, 29 Fed. B. 401. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held, where the events happened before the filing of the bill, but were not discovered until after, the facts might be set up and additional reUef asked by a supplemental bill. Nevada Nickel Syndicate V. National Nickel Co., 86 Fed. B. 486-488. Plaintiff will not be entitled to present an entirely new case by way of supplemental bill. Snead v. M'Coull, 12 How. 407-422, 13 L. ed. 1043. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held, in a suit for infringement of patent after entry of interlocutory decree, the filing of a supplemental bill in the nature of a bill of review is not the proper way to introduce newly discovered evi- dence. The proper practice is by petition for rehearing. Potts & Co. v. Creager, 71 Fed. B. 574-575. Under peculiar circumstances, established by affidavits, a supple- mental bill was allowed to be filed after affirmance on appeal of a decree, such bill being in the nature of a bill of review, based upon newly dis- covered evidence. Municipal Signal Co. v. GameweU F. A. T. Co., 77 Fed. B. 452-453. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held, petition for leave to file a supplemental bill in the court below might be entertained in the appellate court. In re Game- well F. A. T. Co., 76. After receipt of a mandate by the Circuit (District) Court, that court wiE decline to entertain a petition for leave to file a supplemental bill in the nature of a bill of review without leave of the appellate court. lb. 453. 33 514 EQUtTY RULES [Rule XXXIV Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held, former Rule 57 applied to the case of a transfer of the cause of action, by voluntary deed, or contract, as well as by operation of law. Hazeltine T. B. Co. v. Citizens' St. Ry. Co., 72 Fed. R. 325-327. An assignee of plaintiff's interest pending suit may obtain the benefit of proceedings abeady had, by obtaining leave to file a bill in the nature of a supplemental bill. 76. 329. Such bill may be filed even after final hearing. /&. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held, where the plaintiff has assigned his whole interest to another, pending suit, the benefit of the proceedings cannot be obtained by an assignee by means of a supplemental or amended bill; he must file an original bill in the nature of a supplemental bill. Ross v. City of Ft. Wayne, 58 Fed. R. 404-406. It is immaterial that the bill is entitled a supplemental and amended bill, if it contains the material averments which make it an original bill in the nature of a supplemental bill. /6. 406. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held, upon a supplemental bill a subpoena to answer was not required unless new parties were made. A rule upon the parties already served, to answer the supplemental bill, is sufiGlcient. Shaw v. Bill, 95 U. S. 10-14, 24 L. ed. 333. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held, where the original bill was sufficient to entitle com- plainant to relief, and facts subsequently occur which entitle him to other or more extensive relief, he might be allowed to file a supplemental bill. Sheffield, etc., Co. v. Neuman, 77 Fed. R. 787-791, 23 CCA. 459. The granting of leave to file a supplemental bill, or to amend the original bill, is discretionary. lb. 791. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held, where an insolvent corporation had by decree been dissolved and a statutory assignee appointed, pending suit against the corporation, such suit could not proceed without a supplemental bill in the nature of a bill of revivor. Chester v. Life Ass'n of America, 4 Fed. R. 487-489. In such case the statutory assignee might be brought into the pending suit by a supplemental bill in the nature of a bill of revivor. /6. 489. A supplementary answer is the proper course where a new defense is discovered after putting in the answer but which existed before. If the fact was known to the party at the time of the original answer and omitted therefrom, leave to file a supplementary answer will be denied, expecially if the new matter is calculated to embarrass the case, and not. Rules XXXV, XXXVI] equity RtTLES 5J5 essential to. the defense. Suydam ;;. Truesdale, 6 McLean, 459- Fed Cases, 13,656. ' Where pendente lite a party has assigned his whole interest in the subject-matter of a suit, the adverse party can object that the suit has abated as to such assignor, but after becoming acquainted with the facto of such assignment he may waive his objection. lb. RuiLE XXXV — Bills of Revivor and Supplemental Bills Form It shall not be necessary in any bill of revivor or supple- mental bill to set forth any of the statements in the origi- nal suit, unless the special circumstances of the case may require it. Same as Rule 58 of the Rules adopted March 2, 1842. Rule XXXVI— Oncers Before Whom Pleadings Verified Every pleading which is required to be sworn to by statute, or these rules, may be verified before any justice or judge of any court of the United States, or of any State or Territory, or of the District of Columbia, or any clerk of any court of the United States, or of any Territory, or of the District of Columbia, or any notary public. An amendment of Rule 59 of the Rules adopted March 2, 1842. Statutory Provisions Sec. 268, Judicial Code. Courts of the United States have power to administer oaths. Rev. Stats., sec. 1778, U. S. Comp. Stats. 1901, p. 1211. Notaries pub- lic given the same power to administer oaths which by law justices of the peace had. Act Aug. 15, 1876, ch. 304, 19 Stat. L. 206. Notaries public author- ized to take affidavits with the same effect as commissioners of Circuit Courts. Rev. Stats., sec. 1750, U. S. Comp. Stats. 1901, p. 1196. Every con- sular officer is empowered to administer oaths and to perform any notarial act. Decisions Rev. Stats., sec. 1778 ({/. -S. Comp. Stats. 1901, p. 1211), does not in terms require the signature of the notary to be attested by his official seal. A court may require evidence that the officer taking a jurat was a 516 EQUITY RULES [Rule XXXVII notary, but the absence of the seal is at most an irregularity. The E. W. Gorgas, 10 Ben. 460; Fed. Cases, 4,585. Rule XXXVII — Parties Generally — Intervention Every action shall be prosecuted in the name of the real party in interest, but an executor, administrator, guardian, trustee of an express trust, a party with whom or in whose name a contract has been made for the benefit of another, or a party expressly authorized by statute, may sue in his own name without joining with him the party for whose benefit the action is brought. All persons having an interest in the subject of the action and in obtaining the relief demanded may join as plaintiffs, and any person may be made a de- fendant who has or claims an interest adverse to the plaintiff. Any person may at any time be made a party if his presence is necessary or proper to a complete determination of the cause. Persons having a united interest must be joined on the same side as plaintiffs or defendants, but when anyone refuses to join, he may for such reason be made a defendant. Anyone claiming an interest in the litigation may at any time be permitted to assert his right by intervention, but the intervention shall be in subordination to, and in recog- nition of, the propriety of the main proceeding. A new Rule promulgated November 4, 1912. Decisions As a general rule no one can be admitted as a party defendant over the objection of complainant; to this rule there are exceptions. Chester V. Life Ass'n of America, 4 Fed. R. 487-491. The complainant cannot be compelled to add new parties to his bill if he chooses to take the responsibility of their omission. Searles v. 3. P. & M. R. Co., 2 Woods, 621; Fed. Cases, 12,586. The Act of 1839 and Rev. Slats., sec. 738 {U. S. Corny. Slats. 1901, p. 587), allowing publication in proceedings on hens on specific property only puts the case in the same condition as if the absent defendant had appeared. lb. Where no relief is sought against parties connected with the subject- matter of the suit, they should not be made defendants. French v. Shoemaker, 14 Wall. 314, 323, 335, 20 L. ed. 852. Rule XXXVII] EQUITY RULES 517 The objection for want of parties may be taken at the hearing, yet the objection ought not to prevail upon the final hearing on appeal, except in very strong cases when the court perceives that a necessary and indispensable party is wanting. The objection should be taken at an earlier stage of the case. Mechanics' Bank v. Seton, 1 Pet. 299-306, 7 L. ed. 155, Jan. T., 1828. The rule that persons materially interested ought to be parties, either plaintiffs or defendants, is for the convenient administration of justice and within the discretion of the court. The relief granted will al- ways be so modified as not to affect the interests of absent parties. lb. 306. A court is not bound to take notice of any interest acquired in the subject-matter of a suit pending the litigation. lb. 310. It is not indispensable that all parties should have an interest in all the matters contained in the suit. It will be sufficient if each party has an interest in some material matters in the suit and they are connected with the others. Brown v. Safe Deposit Co., 128 U. S. 403-412. An assignment by a defendant of his interest in Utigation does not defeat a suit. His assignee is bound by what has been done. He may come in on application and assume the litigation in his own name or he may act in the name of his assignor, for which he has the implied license by the assignment. Ex parte Raikoad Co., 95 U. S. 221-226, 24 L. ed. 357. It is common in equity practice to permit a party who becomes in- terested in the subject-matter of a suit during its pendency to come in to protect his interests if application is seasonably made. The Jenny Lind, 3 Blatchf. 513; Fed. Cases, 7,287. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held, a bill filed against the executors of an estate and all those who purchased from them was not for that reason multifarious. All having an interest in the principal matter in controversy should be joined, though the interests may have arisen under distinct con- tracts. Gaines v. Chew, 2 How. 619-642, 1 1 L. ed. 619. A party interested in the subject-matter of a suit, not made a party in the bill, may on his motion or petition, be made a party and com- plainants may be required to amend their bill making such party a de- fendant. Scott V. Mansfield, etc., R. Co., 5 Am. L. B. 436; Fed. Cases, 12,541. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held, a bill might be dismissed where the plaintiff when called upon to make proper parties refused, or um-easonably delayed 518 EQUITY RtJLBS [Rule XXXVII doing so; that it must be done on demurrer, plea, or answer pointing out the persons who ought to have been made parties. Greenleaf v. Queen, 1 Pet. 138-149, 7 L. ed. 85. Those whose interests are in harmony and only those, should be joined as plaintiffs. Bunce v. Gallager, 5 Blatchf. 481; Fed. Cases, 2,^33. It is immaterial whether the interests of defendants are or are not in conflict with each other. Parsons v. Lyman, 4 Blatchf. 432; Fed. Cases, 10,779. The jurisdiction depends upon the state of things at the time the ac- tion is brought, and after it is once vested cannot be ousted by subse- quent events. MoUan v. Torrance, 9 Wheat. 537-539, 6 L. ed. 194. No one need be made a party against whom the plaintiff can have no decree, upon the case made by the bill and proof. Van Reimsdyk v. Kane, 1 Gall. 371; Fed. Cases, 16,871. Where it would oust the jurisdiction of the court to make a party plaintiff, he may on application, be made a party defendant where he can equally have the benefit of the suit. Brown v. Pac. Mail SS. Co., 5 Blatchf. 525; Fed. Cases, 2,025. Where the interest of A. is involved in that of B., and A. possesses the legal right, so that the interest may be asserted in his name, it is not always necessary to bring both before the court. Hopkirk w. Page, 2 Brock. 20; Fed. Cases, 6,697. Where the wife complains of the husband and asks relief against him, she must file her bill by her next friend. Binn v. Heath, 6 How. 248, 12 L. ed. 416. The creditors are not necessary parties to a bill filed by an executor against a devisee of lands charged with the payment of debts, for an account of the trust fund, because the fund may be brought into court, and distributed according to the rights of those who apply for it. Potter V. Gardner, 12 Wheat. 498-501, 6 L. ed. 716. The fact that an administrator, in a suit by a distributee to recover an aUquot share, is ordered to account before a master, does not re- quire all who are entitled to distribution to be made parties. If they do not appear before the master no decree for or against them can be made; if they appear and there are controverted matters between them and the administrator, outside the mere accounting, such matters can only be determined on proper pleadings. Hook u. Payne, 14 Wall. 252- 255, 20 L. ed. 887. Rule XXXVII] EQUITY RULES 519 Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Hdd, new parties could not be introduced into a cause by a cross-bill. If a plaintiff desires to make new parties he must amend his bill. If a defendant requires their presence he takes the objection of non-joinder and the complainant is forced to amend, or his bill is dis- missed. Shields v. Barrow, 17 How. 130-145, 15 L. ed. 158. Where after the cause was set for hearing defendant was informed that the plaintiff was a nominal party and that the real plaintiff was a citizen of the same State with the defendant, and he immediately filed a cross-bill charging this and asking a discovery, it was held that the original suit ought not to be heard until the cross-bill was answered. Young V. Pott, 4 Wash. C. C. 521 ; Fed. Cases, 18, 172. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held, a cross-bill was in the nature of a defense and could only be filed by a party to the cause. A stranger to the cause might not file a cross-bill though he petition to be made a party to the suit, with leave to file a cross-bill, if the subject-matter of the proposed cross-bill embraced matter independent of the original bill. Thruston v. Big Stone Gap Imp. Co., 86 Fed. R. 484r-485. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held, to a bill to foreclose a mortgage against the corpora- tion, bondholders might not file a petition in the nature of a cross-bill seeking to recover damages of the complainant, because of the execution of a trust. FideUty Trust & S. V. Co. v. Mobile St. Ry. Co., 53 Fed. B. 850-852. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held, where a cross-bill was iiecessary to the defense of the party filing it, and was filed against parties aheady before the court and subject to its jurisdiction, either plaintiffs or defendants in the original suit, a cross-bill would be sustained, although the parties, plaintiff and defendant therein, or some of them, were citizens of the same State. Schenck v. Peay, Woolw. 175; Fed. Cases, 12,450. Where there is a nominal plaintiff and a real plaintiff the citizenship of the real plaintiff is alone to be considered upon the question of juris- diction. Howard v. United States, 184 U. S. text 680-681, 46 L. ed. 757. Where plaintiffs assert a joint claim and title with others and receive a joint judgment for their undivided interests, unless there is some Federal question involved in the suit, to support the jurisdiction, they cg,^not support jurisdiction on the ground of diversity of their citizenship 520 EQUITY RULES [Rule XXXVII unless all the plaintiffs are entitled to sue in the Federal court. Florida Central, etc., Co. v. Bell, 176 U. S. 321-333, 44 L. ed. 491. If the bill allege the complainants are "citizens of the republic of France" it is sufficient to confer jurisdiction, without any other aver- ment of alienage. Hennessey v. Richardson Drug Co., 189 U. S. 25-34, 47 L. ed. 697. An averment that plaintiff "is a resident of (the State of) Washington and a citizen of Sweden," Held to confer jurisdiction on the Federal court. Nichols Lumber Co. v. Franson, 203 U. S. 278, 61 L. ed. 181. Under the Act of Aug. 13, 1888, c. 886, sec. 1, 25 Stat. 433 (U. S. Comp. Stat. 1901, p. 508, sec. 24, paragraph 1, Judicial Code) providing that no District Court shall have cognizance of any suit to recover on a chose in action in favor of any assignee unless such suit might have been prosecuted in such court if no assignment had been made, the require- ment of the statute is satisfied if by the averments and proof it appears both the mortgagee, the complainant and this immediate assignor were entitled to sue in the Federal court. Farr v. Hobe Peters Land Co., 188 Fed. R. 10, 110 C. C. A. 160-166. Neither the language of the statute nor its apparent purpose requires like qualification on the part of the intermediate assignees, in the absence of evidence that subsequent assignments were merely colorable for evasion of the statutory limitation. Ih. A suit to quiet title to land founded upon complainant's equities as assignee of an unforeclosed mortgage derived through sucessive assign- ments from the original mortgagee is a suit to recover the contents of a chose in action. Ih. Applications to intervene are of two kinds. One where the applicant has other means of redress open to him, and there it is within the court's discretion to refuse to encumber the main case with collateral inquiries. The other where the applicant's claim of right is such that he can never obtain relief unless it be granted in the pending case on intervention, and here the right to intervene is absolute and rejection of the petition is a final adjudication and appealable. United States Trust Co. v. Chicago, etc., Co., 188 Fed. B. 292, 110 C. C. A. 270-274. A petition for intervention need not be as formal as a bill of com- plaint, yet it should exhibit all the material facts relied on for the relief invoked, embodying by recital or reference so much of the record in the original suit as is essential to show a right to the particular relief de- manded. Empire Distilling Co. v. McNulta, 77 Fed. R. 700-703, 23 CCA. 415. Material proceedings subsequent to the fiUng of the petition should be incorporated by amendment. lb. 703. Rule XXXVIII] EQUITY KULES 521 All persons having a distinct interest must be brought into court. Where the interest of one person is involved in that of another and that other possesses the legal right, so that the interest may be asserted in his name it is not always necessary to bring both before the court. Hopkirk v. Page, 2 Brock. 20; Fed. Cases, 6697. The person having the equitable interest may insist on being made a party. 76. No one need be made a party complainant in whom there exists no interest, and no one a party defendant from whom nothing is demanded. Kerr v. Watts, 6 Wh. 559, 5 L. ed. 330. It is not enough that a court of equity causes nothing but the interest of a party to the cause to change owners. Its decree should terminate and not instigate litigation. Candwell v. Taggart, 4 Pet. 190-202, 7 L. ed. 828. Illustrative cases given. The assignment by a defendant of his interest in litigation does not defeat a suit. The assignee may come in and be made a party or act in the name of his assignor, from whom an implied license is given by the assignment. Ex parte Railroad Co., 95 U. S. 221, 24 L. ed. 357. Held, a voluntary transfer of all interest in subject-matter of the litigation to a citizen of the same State as defendant ousts jurisdic- tion. Adams E. & Co. v. Denver, etc., Co., 16 Fed. R. 712-716. Contra Glover v. Sheppard, 21 Fed. ij. 481. The first case cites 8 Pet. 1, 12 Pet. 164, 2 Wh. 290. The second case cites 12 Pet. 164, 8 Pet. 1, 2 Wh. 296, 14 How. 586, 24 How. 450, and says there is no adjudged case in point, but does not refer to 16 Fed. B. 712. Rule XXXVIII — Representatives of Class When the question is one of common or general interest to many persons constituting a class so numerous as to make it impracticable to bring them all before the court, one or more may sue or defend for the whole. An amendment of Rule 48 of the Rules adopted March 2, 1842. Decisions Where the parties are very numerous, or unknown, and to bring all before the court would impede justice, a court of equity will dispense with those not indispensable. MandeviUe v. Riggs, 2 Pet. 482-487, 7L.ed.493. 522 EQUITY RULES [Rule XXXVIII Equity Rule 39 expressly reserves the rights of absent parties; so held of former Rule 48. Coann v. Atlantic C. F. Co., 14 Fed. R. 4-8. Whenever an interested party is without the jurisdiction, or where a party is entitled to a specific sum or share only, in a trust fund, or where the bill itself seeks a discovery of the necessary parties, if it is obvious that the form of the suit cannot be bettered the court will dispense with parties; also where the parties are very numerous, and the court sees it is impossible to bring them all before the court; or where upon a matter of general interest a few sue for the benefit of the whole, or where part of an association, public or private, who fairly represent the right contest for the whole, if the bill is brought on behalf of all interested, the cotirt will proceed to a decree. West v. Randall, 2 Mason, 181; Fed. Cases, 17,424. Suits may be brought against a voluntary association by service of process upon sufficient members, to fairly represent the association, and to answer all practical purposes, if the orders and decrees are asked against a union or association; as defendants, members as distinguished from officials, may represent a union or association. Amer. Steel & W. Co. V. Wire Drawers, etc., Unions, 90 Fed. R. 598-607. In suits affecting the rights of residuary legatees or of next of kin the general rule is all the members of a class must be made parties. McArthur v. Scott, 113 U. S. 240 (28 L. ed. 1032). Where suit is brought by or against a few as representing a numerous class that fact must be alleged of record so the court may determine whether sufficient parties are before it to properly represent the rights of all. lb. A trustee having large powers and important duties with respect to an estate is a necessary party to a suit by a stranger to defeat the trust. 76. In every case there must be such parties before the court as to insure a fair trial of the issue in behalf of all. 76. A trustee of real estate may sufficiently represent the beneficiaries. 76. Where the interested parties are numerous and the suit is for an ob- ject common to them all, one or more may sue on behalf of themselves and of the others. Smith v. Swormsteat, 16 How. 288-302, 14 L. ed. 942. A bill may also be maintained against a portion of a numerous body of defendants representing a common interest. 7b. 302. Where one of a class sues for all, there must be a common interest in the subject of the suit, a community of interest growing out of the nature and condition of the fight in dispute; a common title out of Rule XXXIX] EQUITY RULES 523 which the question arises and which lies at the foundation of the suit. Scott ». Donald, 166 U. S. 107-116, 41 L. ed. 648. AU owners of land similarly situated may become parties to a bill to quiet title. Prentis v. Duluth Storage Co., 58 Fed. R. 441, 7,C C A 293. Rule XXXIX— A&sence of Persons Who Would Be Proper Parties In all cases where it shall appear to the court that persons, who might otherwise be deemed proper parties to the suit, caimot be made parties by reason of their being out of the jurisdiction of the court, or incapable otherwise of being made parties, or because their joinder would oust the jurisdiction of the court as to the parties before the court, the court may, in its discretion, proceed in the cause without making such persons parties; and in such cases the decree shall be without prejudice to the rights of the absent parties. Substantially the same as Rule 47 of the Rules adopted March 2, 1842. Decisions Under the rules in force prior to the revision promulgated Novem- ber 4, 1912,, Held, that neither former Rule 47 nor the Act of Congress of Feb. 28, 1839 (5 Stat. 321), sec. 737, Rev. Stats. {U. S. Comp. Stats. 1901, p. 587), enabled the Circuit Court to make a decree in equity in the absence of an indispensable party, that is, a party whose rights must necessarily be affected by such decree. Shields v. Barrow, 17 How. 130-141, 15 L. ed. 158. Neither can it make any decree between the parties before it that so far involves the rights of an absent person that complete justice cannot be done between the parties in the suit without affecting those rights. 76. Ml. Sec. 737,, Rei). Stais. (U. S. Comp. Stats. 1901, p. 587), relates solely to the non-joinder of persons who are not within the reach of the process of the court. It does not affect any case where persons having an interest are not joined because their citizenship is such that their joinder would defeat the jurisdiction. 76. 140 Naming a party in the bill and praying process against him when he is out of the jurisdiction does not enable the court to make a decree in the absence of a necessary party. Cross v. DeValle, 6 Fed. Cases, 891, 21 Law Rep. 734. 524 EQUITY RULES [Rule XXXIX Parties in suits in equity are divisible into three classes. (1) Formal parties who have no interest in the controversy, though indirectly they may have in the subject-matter. (2) Necessary parties, who having an interest in the controversy, but so separable from those parties before the court that a decree may be entered without injuriously affecting their interests. (3) Indispensable parties who have such an interest in the controversy that a final decree cannot be made without either affecting that interest or making an inequitable decree. Minnesota v. Northern Securities Co., 184 U. S. 199-236, 46 L. ed. 499. Parties to bills are either (1) nominal, (2) necessary, or (3) indis- pensable. If a necessary party is out of the jurisdiction it should be made to appear upon the pleadings. Tobin v. Walkinshaw, 1 McAll. 26;Fed. Cases, 14,068. Indispensable parties have such an interest in the subject-matter of the controversy that a final decree between the parties before the court cannot be made without affecting their interests or leaving the contro- versy in such a situation that its final determination may be inconsistent with equity. Donovan v. Campion, 85 Fed. R. 71, 29 CCA. 30. A proper party as distinguished from a necessary party is one who has an interest in the subject-matter of the litigation which may be conveniently settled therein. Kelley v. Boettcher, 85 Fed. B. 55, 29 CCA. 14. If the rights of those not before the court are inseparably connected with the claim of the parties litigant, so that a final decision cannot be made without affecting the rights of the absent parties, the peculiar constitution of the Circuit (District) Court forms no ground for dispens- ing with such parties. California v. So. Pacific Co., 157 U. S. 229-249, 39 L. ed. 690, Oct. T., 1894. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held, where it was urged that because certain defendants were non-residents and it was impossible and therefore unnecessary to join them, notwithstanding sec. 737, Rev. Stats. ([/. S. Comp. Stats. 1901, p. 587), and former Rule 47, a Circuit Com't could make no decree in a suit in the absence of a party whose rights must necessarily be affected thereby. Gregory v. Stetson, 133 U. S. 579-587, 33 L. ed. 974, Oct. T., 1889. Where the real merits of a cause may be determined without essen- tially affecting the interests of absent persons perhaps it may be the duty of a court to decree as between the parties before it. The law as to jurisdiction of Federal courts justifies the dispensing with parties merely formal. Russell v. Clark's Extxs., 7 Cr. 98, 3 L. ed. 281. RuleXXXIX] EQUITY RULES 525 The rule that all parties in interest be brought before the court addresses itseK to the policy of the court and does not affect its jurisdiction. It is subject to the court's discretion and susceptible of modification for promotion of justice. Elmerdorf v. Taylor, 10 Wh. 152-167, 6 L. ed. 294. It is not an inflexible rule the failure to observe which turns the party out of court. Mallow v. Hinde, 12 Wh. 193-197, 6 L. ed. 600. Where parties having a vested interest (legal or equitable) in the prop- erty in litigation are omitted, the bill should state they are unwilling to become parties or cannot be made defendants by the service of process. Harding v. Handy, 11 Wh. 133, 6 L. ed. 429. Interest means interest in the subject-matter (object) of the suit. Gregory v. Stetson, 133 U. S. 579-587, 33 L. ed. 794. A court cannot adjudicate directly on a party's rights, unless he is a party to the suit. lb. A bill will not be dismissed for want of proper parties if necessary parties can be supplied. Held, new parties could not be brought into a cause by cross-bill. Fourth N. Bk. of, etc., v. N. O. & C.ily. Co., 11 Wall. 624, 20 L. ed. 84. Where a person is so related to the subject-matter of the suit that the rights of such person must be passed upon by the court to reach a final decree, such person is a necessary party. Consohdated Water Co. v. Babcock, 76 Fed. B. 243-248. The general rule is that all persons interested in the controversy should be made parties in order that there may be an end of htigation. Williams v. Bankhead, 19 Wall. 563-571. Where a person would be directly affected by a decree he is an in- dispensable party (unless the parties are too numerous when the case is subject to a special rule). When a person is interested in the controversy but will not be directly affected by a decree made in his absence, he is a proper but not an in- dispensable party. lb. Where a person is not interested in the controversy between the immediate litigants but has an interest in the subject-matter he may be made a party or not at the option of the complainant. 76. 571. If the court is able to proceed to a decree and do justice to the parties before it without injury to absent parties equally interested in the litigation but who cannot conveniently be made parties, this may be done. Payne v. Hook, 7 Wall. 425-431, 19 L. ed. 260. 526 EQUITY RULES [Rule XXXIX Where it is for the convenience of the administration of justice or where to require their joinder would defeat the jurisdiction of the court, the court will dispense with parties when it may proceed to a decree without them, especially where the parties are very numerous and unknown. Mandeville v. Riggs, 2 Pet. 482-488, 7 L. ed. 493. The court will always dispense with merely formal parties who are beyond the reach of process. Abbott v. Am. H. R. Co., 4 Blatchf. 489; Fed. Cases, 9. Where a necessary party cannot be subjected to its jurisdiction, the court will refuse to entertain the suit. Barney v. Baltimore, 6 Wall. 280-284, followed in Bank v. Smith, 6 Fed. R. 215, and Dormitzer v. Ill, etc., Co., n. 217. Under former Rule 47, Held, a complainant need not join any but indispensable parties. If he does join them when their joinder will oust the jurisdiction of the court he may be permitted to dismiss them and thereupon the court has the same jurisdiction of the case it would have had if they had never been made parties. Sioux City, etc., Co. v. Trust Co., 82 Fed. R. 124-128, 27 CCA. 123. The subsequent introduction into the suit of such parties on their own petition will not affect the jurisdiction of the court. /6. 128. All those whose presence is required for a determination of the entire controversy must be made parties and all those who have an interest in the subject-matter of the litigation may be made parties although they have no interest in the litigation between the immediate parties. lb. 126. Where jurisdiction vests at the commencement of a suit over the in- dispensable parties to a decree but the exercise of jurisdiction is pre- vented by the presence of other proper and material parties, the names of such other parties may be stricken out and the objection to the exer- cise of jurisdiction thereby avoided. Tug River, etc., Co. v. Brigel, 86 Fed. R. 818-821, 30 C C A. 415. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held, the want of proper parties was not a fatal defect under former Rule 47, if the parties were out of the jurisdiction of the court; Held, further, a plea setting up a want of parties should show that the parties alleged to be necessary are 'alive and within the jutisdiction of the court. Goodyear v. Toby, 6 Blatchf. 130; Fed. Cases, 5,585. Proper or necessary parties to a suit may be dispensed with when beyond the jurisdiction of the court, if the rights of complainant and respoiidents before the court can be determined without them and they Rule XXXIX] EQUITY BULES 527 are not indispeBsable; although if within the jurisdictiran of the court th^ might be regarded as necessary parties. Union Mill & M. Co. v. Dangberg, 81 Fed. R. 73-89. If a case in equity can be completely decided as between the litigant parties, the fact that there are other persons without the jurisdiction who might have been made parties, if they could have been reached by process, should not prevent a decree as to all parties within the juris- diction of the court. 76. 90. Where their retention as complainants would oust the jurisdiction of the court, parties who have a similarity but no community of interest with the complainant may be stricken out as plaintiffs and made de- fendants; so long as they are on the record the rule that all parties in interest must be either plaintiffs or defendants is complied with, and it makes no difference on what side of the record they are. Ins. Co. v. Svendsen, 74 Fed. R. 346-349. Where no relief can be given without the taking of an account be- tween an absent party and one before the court, though the defect of parties may not defeat the jurisdiction, yet the court will make no decree in favor of complainant. Hagan v. Walker, 14 How. 29-36, 14 L. ed. 312. Where no decree is sought against absent parties, and a decree in favor of the complainants will not affect any rights which they may have, it will not be ground for objection that they were not made parties, though if they had been within the jurisdiction they would have been made parties. Union Bank v. Stafford, 12 How. 327, 341. The Act of Congress of Feb. 28, 1839 (Rev. Stats., sec. 737, U. S. Comp. Stats. 1901, p. 587), authorizes the court to render a decree against the actual defendants who have a beneficial interest and are in court. lb. The Act of Feb. 28, 1839 (Rev. Stats, sec. 737, U. S. Comp. Stats. 1901, p. 587), has effected no change in the jurisdiction of the Circuit Court as regards the character of the parties. It was only intended to remove the difficulties arising from the necessity to join several defendants, some of whom were, and others were not, inhabitants of the district in which the suit was brought. Commercial, etc., Bank v. Slocum, 14 Pet. 60-68, 10 L. ed. 354. In a suit to enforce a lien on lands situated within the district where suit was brought, one defendant, served with process in the State where suit was pending, was a resident of another State; Held, that under the Act of Feb. 28, 1839 (Rev. Stats., sec. 737, U. S. Comp. Stats. 1901, p. 587), such service brought him within the jurisdiction of the court. Winter V. Ludlow, 16 Leg. Int. 332; Fed. Cases, 17,891; Ober v, Gallager, 93 U. S, 199, Oct. T., 1876, 23 L. ed. 829. 528 EQUITY RULES [Rule XXXIX Note. For the practice under the Act of Mar. S, 1887, see McCor- mick Co. V. Walthers, 134 U. S. 41-43, 33 L. ed. 833; also Greeley ». Low, 155 U. S. 58, 39 L. ed. 69. A bill will not be dismissed for want of proper parties alone; but if a decree cannot be made without prejudice to one not a party, upon whom process cannot be served, the bill must be dismissed. Bank v. Carrolton Rd., 11 Wall. 624-631. The want of proper parties may be cured by amendment. lb. A bill ought not to be dismissed for want of proper parties unless the complainant refuses to make parties those who are really necessary, and then it may be dismissed without prejudice. Dandridge v. Washington's Executors, 2 Pet. 370-378, 7 L. ed. 454. The joinder of immaterial parties will not oust the jurisdiction of the court as between those parties who are properly before it. Carneal v. Banks, 10 Wheat. 181-188, 6 L. ed. 297. Where it properly appears that there is a party on the record over whom the court has no jurisdiction and who is not a necessary party to the suit, the bill will be dismissed as to him and retained as to the others. Post V. Reed, 1 Woods, 647; Fed. Cases, 17,011. In chancery there is a distinction as to proceeding in the absence of parties, between their being active and passive; they are active when no decree can be made without their being in court; and in such case the court cannot proceed without them, though not amenable to the process of the court. Where the court can give complete relief to those who seek it without affecting the interests of passive parties it will proceed to do so where they are not amenable to the process of the court. Joy v. Wirtz, 1 Wash. C. C. 517; Fed. Cases, 7,554. HeU, prior to the Act of Feb. 28, 1839 (sec. 737, Rev. Stats, sec. SO, Judicial Code), if a joint interest was vested in the defendants with absent parties the court had no jurisdiction. If the interest was separa- ble the jurisdiction attached. Tobin v. Walkinshaw, 1 McAll. 26; Fed. Cases, 14,068. Where the interests of parties before the court and those who cannot be reached by process and do not voluntarily appear, are inseparable, the obstacle is insuperable and the bill will be dismissed. Ribbon v. Raiboad Co., 16 Wall. 446, 450, 21 L. ed. 67. A lunatic as well as an infant must be made parties where their in- terests are sought to be affected by the decree, and process must be Rules XL, XLI] EQUITY RULES 529 prayed against them. Harrison v. Rowan, 4 Wash. C. C. 202; Fed. Cases, 6,143. Where the jurisdiction of the court is complete between the parties before it, the objection for want of parties is not to the jurisdiction, but to the relief sought against the present defendants without joining absent parties. Where this objection is made and sustained the court will order all proper parties to be made. lb. A lunatic answers by his committee under an order of the court ap- pointing him for that purpose. If he has no committee the court ap- points some person as guardian to defend the suit and answer for the lunatic. lb. The sureties of an administrator are properly joined as defendants in a suit charging fraud in the administration of the estate, where if a balance be found the sureties would be liable. Payne v. Hook, 7 Wall. 425-432, 19 L. ed. 260. Rule XL — Nominal Parties Where no account, payment, conveyance, or other direct relief is sought against a party to a suit, not being an infant, the party, upon service of the subpoena upon him, need not appear and answer the bill, unless the plaintiff specially re- quires him to do so by the prayer; but he may appear and answer at his option; and if he does not appear and answer he shall be bound by all the proceedings in the cause. If the plaintiff shall require him to appear and answer he shall be entitled to the costs of all the proceedings against him, unless the court shall otherwise direct. Same as Rule 54 of the Rules adopted March 2, 1842. Decisions Where nothing is asked of a defendant by the bill and his rights are not put in issue and nothing can be required of him by decree, although he is clearly interested in the subject-matter of the suit, he is not a neces- sary party. Society, etc., v. Town, etc., 2 Paine, 536; Fed. Cases, 13,155. Rule Xhl—Suit to Execute Trusts of Will— Heir as Party In suits to execute the trusts of a will, it shall not be nec- essary to make the heir at law a party; but the plaintiff shall be at liberty to make the heir at law a party where he desires to have the will established against him. Same as Rule 50 of the Rules adopted March 2, 1842. 34 630 EQUITY RULES [Rules XLII, XLIII Decisions A devisee of land in another State, who is a non-resident, need not be joined in a suit against an executor for an account and payment of legacies. West v. Smith, 8 How. 402-410. In suits respecting trust property brought either by or against the trustees, the cestuis que trust as well as trustees are necessary parties. Where suit is brought by a trustee to recover trust property, which in no wise affects his relation with his cestuis que trust, it is not necessary to make the latter parties. Carey v. Brown, 92 U. S. 171-172. Where the fee is vested in an executor or trustee this rule applies, not otherwise. Chew v. Hyman, 7 Fed. R. 7-14. Where a devise by will does not vest the fee in an executor, the devisee is a necessary party to suits concerning land devised. lb. 14-15. Rule XLII — Joint and Several Demands In all cases in v^hicb the plaintiff has a joint and several de- mand against several persons, either as principals or sureties, it shall not be necessary to bring before the court as parties to a suit concerning such demand ail the persons liable thereto; but the plaintiff may proceed against one or more of the persons severally hable. Same as Rule 51 of the Rules adopted March 2, 1842. Rule XLIII — Defect of Parties — Resisting Objection Where the defendant shall by his answer suggest that; the bill of complaint is defective for want of parties, the plaintiff may, within fourteen days after answer filed, set down the cause for argument as a motion upon that objection only; and where the plaintiff shall not so set down his cause, but shall proceed therewith to a hearing, notwithstanding an objection for want of parties taken by the answer, he shall not at the hearing of the cause, if the defendant's objection shall then be allowed, be entitled as of course to an order to amend his bill by adding parties; but the court shall be at liberty to dismiss the bill, or to allow an amendment on such terms as justice may require. An amendment of Rule 62 of- the Rules adopted March 2, 1842. RuleXLIV] EQUITY RULES 531 Decisions The names or descriptions of the parties who should be brought before the court should be specified. Segee v. Thomas, 3 Blatchf. 11 ; Fed. Cases 12,633. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held, a plea for want of parties was not matter for abate- ment; it was a plea in bar and went to the whole bill; former Rule 47 enabled the court to dispense with nominal and necessary parties, but not with indispensable parties. Tobin v. Walksinshaw, I McAll. 26; Fed. Cases, 14,068. The defect, if vital, may be insisted on at the hearing, and may be assigned for error on appeal. 76. Upon objection for want of parties, the court will give leave to amend, or will order proper parties be made. Harrison v. Rowan, 4 Wash. C. C. 202; Fed. Cases, 6,143. Upon failure to make proper parties within a reasonable time the bill will be dismissed. lb. Upon objection such defect of parties may be cured by amendment. Douglass V. Butler, 6 Fed. R. 228-229. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held, a case might be set down upon defendant's objection made by answer setting up want of propep parties, even after replication filed, if defendant failed to object. Lorillard v. Standard Oil Co., 2 Fed. R. 902-903. Where a bill is dismissed because of the absence of a non-resident in- dispensable party, it should be without prejudice. Kendig v. Dean, 97 U. S. 423-426. Rule XLIV — Defect of Parties — Tardy Objection If a defendant shall, at the hearing of a cause, object that a suit is defective for want of parties, not having by motion or answer talcen the objection and therein specified by name or description the parties to whom the objection applies, the court shall be at liberty to make a decree saving the rights of the absent parties. SubstaQtially the same as Rule 53 of the Rules adopted March 2, 1842. Decisions The want of parties is not necessarily fatal even at the hearing, be- cause the cause may be ordered to stand over to make further parties, 532 EQUITY RULES [Rule XLV but this is rarely done unless where the cause as to the new parties may stand upon bill and answer to such parties; but rather the cause will be dismissed without prejudice. West v. Randall, 2 Mason, 181; Fed. Cases, 17,424. Where the objection to the want of proper parties is duly made, it is not sufficient ground for dismissing the bill, but the suit should stand over that new parties may be made. MilMgan v. Millage, 3 Craneh, 220, 2 L. ed. 417. The objection that some of the plaintiffs have no interest in the suit cannot be first made at the hearing. Segee v. Thomas, 3 Blatchf. 11; Fed. Cases, 12,633. Courts of equity are always unwilling to turn a complainant out of court on objection for want of proper parties made at the final hearing. Townsend, etc.. Bank, etc., v. Epping, 3 Woods, 390; Fed. Cases, 14,120. Rule XLV — Death of Party — Revivor In the event of the death of either party the court may, in a proper case, upon motion, order the suit to be revived by the substitution of the proper parties. If the successors or representatives of the deceased party fail to make such application within a reasonable time, then any other party may, on motion, apply for such relief, and the court, upon any such motion may make the necessary orders for notice to the parties to be substituted and for the filing of such pleadings or amendments as may be necessary. A substitute for Rule 56 of the Rules adopted March 2, 1842. Statutory Provisions Rev. Stats., sec. 955, U. S. Comp. Stats. 1901, p. 697. When either of the parties, whether plaintiff, petitioner, or defendant, dies before final judgment, the executor or administrator may, if the suit survives, prosecute or defend to final judgment. The defendant shall answer and the cause will be heard and determiijed, and judgment rendered for- or against the executor or administrator. If the executor or administrator neglects or refuses to become a party twenty days after being served with a scire facias, the court may nevertheless render judgment against the deceased party. The executor or administrator on becoming a party is entitled to a continuance until the next term. Rev. Stats., sec. 956, U. 8. Comp. Stats. 1901, p. 697. When one of several plaintiffs or defendants dies, in an action which survives to or Rule XL V] EQUITY RULES 533 against the other, the writ or action shall not abate; but, upon suggestion on the record, the action shall proceed in favor of or against the surviv- ing party. Decisions Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held, former Rule 56 was declarative of the practice in equity, and the provisions of the Judiciary Act of 1789, Ch. 20 {Rev Stats. 955, U. S. Comp. Stats. 1901, p. 697). FitzPatrick v. Domingo 14 Fed. R. 216-217. ' If the original parties were citizens of different States the suit may be revived where the new parties are citizens of the same State. Clarke v Matthewson, 12 Pet. 164-172, 9 L. ed. 1041. Reversing the same case reported in 2 Sum. 262; Fed. Cases, 2,857. In equity the death of a party amounts to a mere suspension of the suit; where the cause of action survives it does not amount to the de- termination of the suit. lb. 171. A bill of revivor is not the commencement of a new suit, but the mere continuation of the old one. 76. 172. The revivor of a suit in equity by or against the representative of the deceased party is a matter of right. 76. 172. The representatives take the place of those whom they represent, and the suit proceeds in its new form unaffected by its change of name. Vattier v. Hind, 7 Pet. 252-266, 8 L. ed. 675. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held, on a biU of revivor the settled practice was to use all the testimony which might have been used had no abatement oc- curred. 76. In equity an abatement is merely an interruption to. the suit, sus- pending its progress until the new parties are brought before the court, and if this is not done within a proper time the court wiU dismiss the suit. Hoxie v. Carr, 1 Sum. 173; Fed. Cases, 6,802. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held, new defenses could not be made in an answer to a bill of revivor. Such bill put in issue nothing but the character of the new parties brought in. Fretz v. Stover, 22 Wall. 198-204, 22 L. ed. 769. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held, on a bill of revivor the sole questions before the court were the competency of the parties, and the correctness of the frame of the bill to revive. Bettes v. Dana, 2 Sum. 383; Fed. Cases, 1,368. Held, objections to the original bill for want of equity must be re- served until after the revival. 76. 534 EQUITY RULES [Rule XLV Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held, after answer and discovery, a suit brought merely for discovery could not be revived. Such bill ought to be dismissed, but if it became a bill for relief it might be revived. Horsburg v. Baker, 1 Pet. 232-236, 7 L. ed. 125. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held, where a corporation was dissolved by the State court pending suit in the Federal court, that court had the power to grant a bill of revivor. Griswold v. Hilton, 87 Fed. B. 256, 30 C. C. A. 632. There are exceptional cases in which the defendant himself or his representatives may revive a suit by supplemental bill or original bill in th'e nature of a supplemental bill. Chester v. Life Ass'n of America, 4 Fed. R. 487-490. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held, where the only interest of the representative of a deceased defendant was to dissolve an injunction he should not proceed by bill to revive, but by a motion for a rule that the injunction be dis- solved unless complainant within a short time file his bill of revivor. lb. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held, the words "May be revived" in former Equity Rule 56 should be read "must be" or "shall be revived." The Federal courts then had no authority to allow a revivor on motion. Held: As the defendant might desire to contest the right or title of the proposed new plaintiff, and many complex questions of law or fact, or both, might be raised, a suit in equity must be revived by a bill of revivor, or a bill in the nature of a bill of revivor. Dillard's Admr. v. Central Virginia Coal Co., 125 Fed. R. 157-159. Some doubt is intimated as to whether sec. 955, Rev. Stats. {U. S. Comp, Stats. 1901, p. 697), is applicable to a chancery suit. lb. 159. Sec. 955, Rev. Stats. {U. S. Comp. Stats. 1901, p. 697), held not appli- cable to a chancery suit. Brown v. Fletcher, 140 Fed. R. 639-642. Supreme Court Rule 15 prescribes the mode by which the defendant may compel the appearance by the representative of a deceased com- plainant in that court, but there was no such rule prescribed for the Circuit Court in equity by the former rules. lb. 645. The personal representative of a deceased complainant will not be permitted to suffer a suit in equity to lie dormant without seeking to revive for a period equal to that prescribed in the Statute of Limitations to bar a right. lb. 645. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held, former Equity Rules 56 and 57 made no provision to compel the revival of a suit abated by the death of a sole complainant; Rule XL VI] EQUITY RULES 535 they prescribed simply the method of procedure by which a personal representative at his own instance might be substituted for the deceased complainant. 76. By the practice of the High Court of Chancery of England in 1842, which then regulated the equity practice in the Federal courts in the absence of any rule, where a sole plaintiff died before decree, the suit could not be revived at the instance of a defendant or his legal repre- sentative; in such case, therefore, the defendant might have a dismissal of the bill for want of prosecution where a revivor was not had within a limited time. lb. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held, a defendant could not defeat a revival of a suit which had abated by interposing objections in the nature of a demurrer to the original bill which he had already answered. Simmons v. Morris, 109 Fed. R. 707-708. Held whether the Federal courts may consider the question of laches upon a bill to revive was still open, but on principle it seemed that laches sufficient to defeat the maintenance of the original suit, if occur- ring after it has abated, should prevent its revival. Ih. 709. Considered, but not decided, that inexcusable laches resulting in irreparable injury may be a sufficient reason to defeat the right to re- vive, but it must have been laches in filing a bill of revivor, or possibly in prosecuting the original suit. 76. 709. Rule XLVI — Trial — Testimony Usually Taken in Open Court-^Rulings on Objections to Evidence In all trials in equity the testimony of witnesses shall be taken orally in open court, except as otherwise provided by statute or these rules. The court shall pass upon the admissi- bility of all evidence offered as in actions at law. When evi- dence is offered and excluded, and the party against whom the ruling is made excepts thereto at the time, the court shall take and report so much thereof, or make such a statement re- specting it, as will clearly show the character of the evidence, the form in which it was offered, the objection made, the rul- ing, and the exception. If the appellate court shall be of opin- ion that the evidence should have been admitted, it shall not reverse the decree unless it be clearly of opinion that material prejudice will result from an affirmance, in which event it shall direct such further steps as justice may require. A new Rule promulgated November 4, 1912. 536 EQUITY RULES [Rule XL VI Statutory Provisions Rev. Stats., sec. 858, V. S. Comp. Stats. 1901, p. 659. In the courts of the United States, in civil actions, no witness is excluded because of interest in the issue, except that in actions by or against executors, administrators, or guardians neither party may testify as to transactions with or statements by the testator, intestate, or ward, unless called by the opposite party, or required by the court. In other respects the laws of the State where the court is held govern as to competency. Rev. Stats., sec. 862, U. S. Comp. Stats. 1901, p. 661. The mode of proof in equity and admiralty is as the Supreme Court may prescribe. Amended by the Act of Mar. 9, 1892 (27 Stat. L. 7), to allow the taking of depositions and testimony in the mode prescribed by the laws of the State in which the suit is pending, in addition to existing modes. Rev. Stats., sec. 868, U. S. Comp. Stats. 1901, p. 664. Where a court of the United States issues a commission to take testimony the clerk of the Federal court in the district where the testimony is taken may issue subpoenas for witnesses and the judge of such coiirt enforce obedience to such process. Rev. Stats., sec. 869, U. S. Comp. Stats. 1901, p. 665. The clerk of such court may issue subpoena duces tecum, and the judge enforce obedience to such subpoena. Rev. Stats., sec. 870, U. S. Comp. Stats. 1901, p. 665. Under sees. 868 and 869, witnesses not required to attend at any place out of the county of their residence or more than forty miles therefrom. Rev. Stats., sec. 876, U. S. Comp. Stats. 1901, p. 667. Subpoena for witnesses may run into any other district as well as the district where the court is held, provided the witness does not live more than 100 miles from the place court is held. Sec. 12 of the Act of Feb. 4, 1887, 24 Stat., L. 379, gives power to the Interstate Commerce Commissioners to subpoena witnesses from any place in the United States at any designated place of hearing and gives power to any Circuit (District) Court of the United States within the jurisdiction where an inquiry is being had to issue an order to appear and punish for contempt upon failure to obey. Rev. Stats., sec. 847, U. S. Comp. Stats. 1901, p. 652. Fees of United States commissioners. Fees: Administering an oath, ten cents; issuing subpcBna, twenty-five cents; taking and certifying depositions, twenty cents per folio of 100 words. Rev. Stats., sec. 848, U. S. Comp. Stats. 1901, p. 654. Fees of witnesses. Witness fees: Per diem, $1.50 and five cents per mile each way. Rev. Stats., sec. 917, U. S. Comp. Stats. 1901, p. 684. The Supreme Court may prescribe the modes of taking and obtaining evidence in suits in equity and admiralty. Rev. Stats., sec. 863, U. S. Comp. Stats. 1901, p. 661. Officers who may take depositions. A judge of any United States court, any commissioner of a Circuit (District) Court, clerk of a District or Circuit Court, any Rule XL VI] EQUITY RULES 537 chancellor, justice, or judge of a Supreme or Superior Court, mayor or chief magistrate of city, judge of a couaty court or court of common pleas or any notary public. The officer must not be a relative or attorney of either party or otherwise interested in the event of the suit. Notice. Reasonable notice in writing must be given the opposite party or his attorney, as either may be nearest, and, when notice served personally is impracticable, upon such notice as any judge au- thorized to hold courts in the circuit or district directs. Rev. Stats., sec. 864, U. S. Comp. Stats. 1901, p. 662. Manner of taking depositions. Formerly required to be reduced to writing by the magis- trate, or by the witness in the magistrate's presence and by no other person. Now amended to allow the testimony to be reduced to writing or typewriting by the officer taking the deposition or some person under his personal supervision or by deponent in the officer's presence and afterwards subscribed: as amended by Act May 23, 1900, ch. S41 (31 Stat. L. 182). Rev. Stats., sec. 865, U. S. Comp. Stats. 1901, p. 663. Sealed and transmitted. The deposition must be sealed up and directed to the court where suit is pending and remain under seal until opened in court, or delivered by the officer into such court with his own hand. When taken de bene esse the certificate must state the reasons for taking prescribed by sec. 863 and the notice given. Decisions Facts well pleaded in a bill and not denied or controverted by the answer are not required to be proved, unless the defendant by the an- swer demands proof. Klenk v. Byrne, 143 Fed. R. 1008-1010. General denials in an answer which are inconsistent with facts therein affirmatively alleged are not entitled to consideration. lb. No decree can be rendered upon the proofs upon matter not charged in the bill, any more than upon a case alleged but not proved. Baldwin V. Liverpool & L. & G. Ins. Co., 124 Fed. R. 206-208, 59 CCA. 660. Prior to the amendment of former Rule 67 in 1861 the only method of taking the testimony of a witness within the jurisdiction was either by an examination in open court, or upon a commission with written interroga- tories annexed. Bronson v. La Cross M. R. Co., 9 Am. Law Reg. 350; Fed. Cases, 1,930. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held, Paragraph 9 of Rule 67 was declared to be a construe- 538 EQUITY EULES [Rule XL VII tion given by the Supreme Court of the Act of Mar. 9, 1892 (ch. 14, 27 Stat. L. 7) and by this rule the application of the statute was limited to final hearings. Fenno v. Primrose, 125 Fed. R. 635-636. Affidavits not taken before any oflBcer authorized by any Act of Con- gress to perform this duty should be disregarded. Haight v. Morris Aqueduct, 4 Wash. C. C. 601; Fed. Cases, 5,902. Rule 'XliVIl-'-Depositions — To Be Taken in Exceptional Instances The court, upon application of either party, when allowed by statute, or for good and exceptional cause for departing from the general rule, to be shown by affidavit, may permit the deposition of named witnesses, to be used before the court or upon a reference to a master, to be taken before an ex- aminer or other named officer, upon the notice and terms specified in the order. All depositions taken under a stat- ute, or under any such order of the court, shall be taken and filed as follows, unless otherwise ordered by the court or judge for good cause shown: Those of the plaintiff within sixty days from the time the cause is at issue; those of the defendant within thirty days from the expiration of the time ' for the filing of plaintiff's depositions; and rebutting deposi- tions by either party within twenty days after the time for taking original depositions expires. A new Rule promulgated November 4, 1912. Decisions Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held, under former Rule 67 courts were authorized to ap- point examiners to take testimony orally beyond the limits of their own districts. White v. Toledo, St. L. & K. C. R. Co., 79 Fed. R. 133-135; 24 C. C. A. 467; Western, etc., R. Co. v. Drew, 3 Woods, 691; Fed. Cases, 17,434. The attendance of witnesses before such commissioner may be com- pelled by the court of the district in which the examination is held. lb. 134. Witnesses subpoenaed to appear and testify before a master appointed to take testimony in another district, who refuse to appear, or who appear and refuse to be sworn and testify, may be punished for con- tempt. In re Spofford, 62 Fed. R. 443-444, 10 C. C. A . 493. kuleXLVli] EQUITY RULES 539 Under the rules in force prior to the revision promulgated No- vember 4, 1912, Hdd, under Clause 1 of former Rule 67, that the appointment of commissioners to take testimony abroad was not grantable as of course, but required allowance by the judge, on previous notice to the adverse party. United States v. Parrott, 1 McAll. 447; Fed. Cases, 15,999. The practice of permitting a master in his discretion to take testimony outside of the district of his appointment, has become of almost uni- versal application. Consolidated Fastner Co. v. Columbia, etc., Co., 85 Fed. R. 54. A master may take testimony in a foreign country. Bate Refrigerat- ing Co. V. Gilette, 28 Fed. R. 673-675. Held, the taking of testimony orally before an examiner in the presence of the parties is much more satisfactory than taking it by a commission. lb. 676. The master is a judicial officer, a representative of the court, and it is not the general practice to interfere with his acts in limine, but to wait until his report comes in before hearing exception, on the ground of irregularity or excess of authority. lb. 674. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held, the mode of taking testimony by deposition under former Rule 67 was by oral questions put at the time if desired, and not necessarily by written interrogatories given to the officer be- fore commencing the taking. Bischoffcheim v. Baltzer, 10 Fed. R. 1-3. Under former Rule 67, Clause 2, if either party gave the other notice that he desired the evidence to be taken orally all the evidence was to be so taken in the presence of parties and counsel, and the witnesses might be cross-examined and re-examined in the manner used in common-law courts; but the notice so given was subject to the power of the chancellor for special reasons to annul its usual effect. lb. 3. Where testimony in a foreign country can be taken orally it ought not to be taken otherwise except for special reasons. lb. 4. Where complainant, who resided abroad, applied for an order for a commission to examine himself on written interrogatories the court allowed defendant to crossi-examine him orally. lb. Where the notice read that the deposition taken under sec. 863, Rev. Stats. {U. S. Crnnp. Stats. 1901, p. 662), would be taken before " W. G. P., notary, or some other officer authorized by law to take depositions" and it was taken before "N. F. E." a notary. Held, regular and the notice in conformity to the statute. Gormley v. Bunyan, 138 U. S. 623, 34 L. ed. 1090. 540 EQUITY RULES [Rule XLVII The mere clerical error of the clerk in wrongly spelling the name of the Commissioner is not material. Bibb v. Allen, 149 U. S. 481-488, 37 L. ed. 823. A motion to suppress for irregularities should be promptly made, so as to afford opportunity to re-take or correct the deposition. It is too late when made after the case is called for trial (a case at law) . lb. If not satisfied with the first deposition a party may have another. Nash V. Williams, 20 Wall. 226, 22 L. ed. 251. Deposition and return set out. Spaids v. Cooley, 113 U. S. 278, 28 L. ed. 985. A lost deposition may be proved by a copy. The party taking is not bound to supply it with another and different deposition. Burton v. Driggs, 20 Wall. 125, 22 L. ed. 299. Objections which go to defects or irregularities in the taking of the deposition which might have been obviated by retaking, if not noted when the deposition is taken or presented before trial by motion to suppress are waived. The party taking a deposition is entitled to have the question of its admissibility settled in advance of trial. Doane v. Glenn, 21 Wall. 33, 22 L. ed. 476. Objection to copies of papers, etc., embodied in or annexed to a depo- sition should be by motion to suppress made before trial, so as to afford opportunity to produce the originals if competent. ' Ins. Co. v. Guardiola, 129 U. S. 642, 32 L. ed. 802. Where motion to suppress is made before trial, if objection is not made and exception taken when the deposition is offered at the trial the objec- tion is deemed waived. Nor. Pac. R. v. Wrein, 158 U. S. 274, 39 L. ed. 977. Hdd, testimony taken before an examiner was a deposition. Missouri V. Illinois, 202 U. S. 598-600, 50 L. ed. 1160. The effect of Act Mar. 2, 1892, is not to enlarge the grounds for taking depositions, but in respect to depositions authorized to be taken by Federal law the courts, may follow either the State or Federal practice in the manner of taking them. Hanks Dental Assn. v. International, etc., Co., 194 U. S. 303-309, 48 L. ed. 98. The act does not enlarge the instances in which depositions may be taken. Nat'l Cash Register v. Leland, 77 Fed. B. 242, 37 C. C. A. 372, approved 94 Fed. B. 502. * The complainant may have an order that the deposition of defendant may be taken. Texas v. Chiles, 21 Wall. 488, 22 L. ed. 650. Rule XL VII] EQUITY RULES 541 Formerly the deposition of a party to the cause could not be read. Hoyt V. Hammerkin, 14 How. 350, 14 L. ed. 451. Changed by sec. 858, Rev. Stats., U. S. Comp. Stats. 1901, p. 659. The form of the oath administered to the witnesses need not be set out in the return. The commissioners are to examine the witnesses produced by the party suing out the commission left with them before the commission is closed. It is immaterial in whose handwriting the deposition is. That a commission is sued out by plaintiff does not preclude defendant from joining with consent of plaintiff and a joint commission may issue (no interrogatories need be annexed to the com- mission when sued out). Keene v. Meade, 3 Pet. 1-9, 7 L. ed. 584. Under the former rules where application for a commission was made leave would not be granted to the opposite party to orally cross-examine in absence of notice. Coates v. Merrick Thread Co., 41 Fed. B. 73. The authority of commissioners is special and must be executed strictly according to the tenor of the commission. Armstrong v. Brown, 1 Wash. C. C. 43; Fed. Cases, 542. A commissioner acts under a special authority. If directed to take testimony in one county, he cannot execute the commission by taking it in another. He should state when and where the deposition was taken. Boudineau v. Montgomery, 4 Wash. C. C. 186; Fed. Cases, 1,694. Decided in 1827, that where the rule designates the place where the depositions are to be taken, the commission must conform to it, and the depositions must be taken at the place indicated or they cannot be read; also that it should appear by the certificate of the persons taking the depositions, that they were taken at the time and place named therein, and in the notice . Stats. {U. S. Comp. Stats. 1901, p. 662). Ordinary deposi- tions may be taken before consular officers under sec. 1,750, Rev. Stats., but depositions de bene esse are not ordinary notarial acts, such as a notary could perform simply by virtue of his office. The Alexandra, 104 Fed. R. 904^907. The proper course is by commission, where there may be an oral examination of the witnesses. Cortes Co. v. Tannhauser, 18 Fed. R. 667. Where a deposition is taken of witnesses speaking a foreign language and their counsel had read to them the interrogatories and prepared their answers in English before the examiner had actually taken the evidence. Held, that the examination of the witnesses must be by the examiner and not by counsel, although the fact that the witnesses had heard the interrogatories in advance would not alone have been fatal. Western, etc., R. Co. v. Drew, 3 Woods, 691; Fed. Cases, 17,434. Sec. 863, Rev. Slats. ([/. S. Comp. Stats. 1901, p. 662), provides that testimony may be taken in admiralty and equity causes in practically Rule MV] EQUITY RULES 553 the same manner as it is taken in legal actions, where all that was required tp take testimony by deposition de bene esse was that a litigant give notice to the opposite party that he proposed to take the testimony of certain witnesses named, before a notary pubUc anywhere, and the parties then go before a notary and he takes their testimony. By former Rule 68 this privilege was granted in equity causes (after they were at issue), the same as theretofore was done in legal actions. lb. 936. When testimony is taken de bene esse in equity, on a notice merely, the proceeding must be in accordance with the Rule, and the word "depending" in sec. 863, Rev. Stats. (U. S. Comp. Stats. 1901, p. 662), must be understood to mean that the cause be at issue. Until the cause is at issue, no testimony can be taken in it under the statute last men- tioned, lb. 937. Where a party presents facts which entitle him to take testimony by depositions under sec. 863, Bev. Stats. (U. S. Comp. Stats. 1901, p. 662), the Act of Congress of Mar. 9, 1892 (ch. 14, 27 Stat. L. 7) does not limit him to taking the depositions orally before an authority named in the notice, but provides an additional method in which it shall be lawful to take the depositions in the mode prescribed by the laws of the State in which the court is held. Magone v. Colorado S. & M. Co., 135 Fed. B. 846-849. Under sec. 866, Reo. Stats. (JJ. S. Comp. Stats. 1901, p. 663), a mere affidavit that the witness lives more than 100 miles from the place of trial does not warrant the awarding of a dedimus, but there should be a showing of the necessity of the taking of such deposition to prevent the failure or delay of justice. lb. 848. Where no statute of the State where the court is held provides other- wise, the deposition taken under sec. 863, iSew. Stats. {U. S. Comp. Stats. 1901, p. 662), should be taken orally before an authority named in the order, but by the Act of Mar. 9, 1892, in addition to the modes of taking depositions in the Federal courts depositions may be taken in the manner prescribed by the laws of the State in which the courts are held. The statute adopting the State practice as to the manner of taking deposi- tions in no way enlarges or restricts the grounds of taking depositions as declared by the Federal statutes, sees. 866 and 863, Rev. Stats. (JJ. S. Comp. Stats. 1901, pp. 662 and 663). lb. 848. Under sec. 863, Rev. Stats. {U. S. Comp. Stats. 1901, p. 662), the sub- poena diuxs tecum for the production of documents may be issued by the clerk of the district where the testimony is being taken, when directed by order of the court. Crocker-Wheeler Co. v. Bullock, 134 Fed. B. 241- 242. A Federal court has power to issue subpoena duces tecum under sec. 863, Rev. Stats. (U. S. Comp. Stats. 1901, p. 662). Such subpoena does not issue as of course by the clerk but only upon order of the court, on 554 EQUITY RULES [Rule LIV preliminary proof, after proper investigation into the materiality and competency of the evidence, and that the same is in the possession of the witness. The court will not finally determine the question of materiality on such application, but it must be reasonably satisfied that such evi- dence is relevant and material. Dancel v. Goodyear Shoe Machinery Co., 128 Fed. R. 753-762. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held, former Rules 67, 68, and 78 recognized three methods of taking proof: (1) According to the Acts of Congress; (2) under a commission; (3) before a master or examiner appointed in the cause, where the witnesses Uve within the district; and were a readoption of Rules 25, 26, and 28 of the Rules of Equity of 1822. Van Hook v. Pendleton, 2 Blatchf. 84; Fed. Cases, 16,852. When exceptions are intended to be taken to interrogatories or cross- interrogatories, they should be propounded as objections before the commission issues, when they may be ruled upon by the court. Cocker «;. Franldin H. & B. Co., 1 Stmy, 169; Fed. Cases, 2,930. Under the general interrogatory the witness may give evidence of any matter pertinent to the cause, which he might have done, if such matter had formed the subject of a particular interrogatory, and it is no objec- tion that counsel for the other side are unapprised of what the witness deposes. Rhoades v. Selin, 4 Wash. C. C. 715; Fed. Cases, 11,740. It is no objection to a deposition that a material part of the evidence comes in response to the general interrogatory. lb. Held, in a case at law, that all the interrogatories should be answered, because questions are thereafter put on the supposition that all will be answered. Bell v. Davidson, 3 Wash. C. C. 328; Fed. Cases, 1,248. Under the former practice Held, if the general interrogatory was not answered the deposition might be suppressed. Richardson v. Golden, 3 Wash. C. C. 109; Fed. Cases, 11,782. If the general interrogatory was not answered it was fatal. Dodge v. Israel, 4 Wash. C. C. 323; Fed. Cases, 3,952. Held, in a case at law, that the deposition could not be read because of omission to put all the questions to the witness. Gilpins v. Consequa, Pet. C. C. 85; Fed. Cases, 5,452. It is no objection that the cross-interrogatories were put after all the chief interrogatories were answered. lb. Nor is it an objection that the deposition is in English and the com- missioners were foreigners and they fail to state they had a sworn in- terpreter, lb. RuleLV] EQUITY RULES 555 I Where the direct examination of a witness was taken by a commis- sioner, but no cross-interrogatories were, filed, after death of the witness, Held, the deposition should be read. Gass v. Stinson, 3 Sumn. 98; Fed. Cases, 5,262. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held, former Rule 70 was not intended for the examination of a party to the cause. Estava v. Mazange's Adm., 1 Woods, 623; Fed. Cases, 4,527. A deposition should not be suppressed because in the caption it fails to name each of the copartners of a firm, or because it fails to state therein that the place where the testimony is to be taken is distant more than 100 miles, if the court judicially knows it is. Egbert v. Citizens' Ins. Co., 7 Fed. B. 47. Where the officer fails to certify that he delivered the depositions to the court, or that he sealed them and deposited them in the post ofiice at the place where taken, if in fact they came through the mails from such place, addressed to the clerk of the court, and were duly received from the post office by him, marked with the style of the case, and the usual endorsement across the seal, the deposition will not be suppressed. lb. 49-50. No special provision is made by the rules respecting the transmission or custody of depositions. Where sent by mail the fact that in trans- mission the envelope has been abraded so that it is open, will not be ground to suppress the deposition. Eiffert v. Craps, 44 Fed. R. 164. In an action at law, Held, that a deposition taken may be read al- though the witness is present in court, subject to the right of the adverse party to place him on the witness stand. Whitford v. Clark County, 13 Fed. B. 837. The note to this case cites authorities to the contrary. Rule LV — Deposition Deemed Published when Filed Upon the filing of any deposition or affidavit taken under these rules or any statute, it shall be deemed published, unless otherwise ordered by the court. A new Rule promulgated November 4, 1912. Decisions Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held, the general rule was that after publication of the testimony no new witnesses could be examined and no new evidence taken. Wood v. Mann, 2 Sumn. 316; Fed. Cases, 17,953. 556 EQUITY RULES [Rule LVI There is no absolute rule prohibiting the allowance of new testi- mony after publication, but it rests in the sound discretion of the court to be exercised cautiously and only when indispensable to the merits and justice of the cause. lb. Upon a rehearing, or a bill of review, or bUl in the nature of a bill of review, if the evidence of new witnesses ought to be let in to avoid ex- penses and circuity of remedy, it should be done. 7b. New evidence after publication should not be taken, except when the judge entertains a doubt, or when some additional fact or inquiry is indispensable to enable him to make a satisfactory decree. lb. When evidence wiU be received after publication of the testimony; the several exceptions to the general rule enumerated. lb. Rule LVI — On Expiration of Time for Deposiiions^ Case Goes on Trial Calendar After the time has elapsed for taking and filing depositions under these rules, the case shall be placed on the trial calen- dar. Thereafter no further testimony by deposition shall be taken except for some strong reason shown by affidavit. In every such application the reason why the testimony of the witness cannot be had orally on the trial, and why his deposi- tion Tias not been before taken, shall be set forth, together with the testimony which It is expected the witness will give. A new Rule promulgated November 4, 19X2. Decisions Under the rules in force prior to the revision promulgated Novem- ber 4, 191^, Held, former Rule 69 had no application to a hearing before a master to take testimony as to damages on an injunction bond. Coosaw Mining Co. v. Farmer's Mining Co., 67 Fed. B. 31. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held, the refusal of the Circuit Court to suppress depositions taken after the time Umitedby former Rule 69 was within the exercise of its discretion. Grant v. Phenix Life Ins. Co., 121 U. S. 105-116, 30 L. ed. 395. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held, testimony taken more than three months after the filing of the replication might be received at the hearing in the discretion of the court under former Rule 69. Fisher v. Hayes, 6 Fed. B. 76-78. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held, the Umitation of three months allowed by former RuleLVII] EQUITY RULES 557 Rule 69 for taking testimony applied as much to the defendants as to complainants. Ingle v. Jones, 9 Wall. 486-499, 19 L. ed. 621. A distinction was made between documentary and oral evidence, the former being not subject to variance to suit altered conditions. 76. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held, where three months after the filing of replication had elasped without the taking of any testimony, or any motion to extend the time, and therefter plaintiff moved to strike out portions of the answer, there was no error in setting the cause down for hearing on biU and answer after such motion was denied. McGorray v. O'Connor, 87 Fed. R. 586-688, 31 C. C. A. 114. Rule LVII — Continuances After a cause shall be placed on the trial calendar it may be passed over to another day of the same term, by consent of counsel or order of the court, but shall not be continued beyond the term save in exceptional cases by order of the court upon good cause shown by affidavit and upon such terms as the court shall in its discretion impose. Contin- uances beyond the term by consent of the parties shall be allowed on condition only that a stipulation be signed by counsel for all the parties and that all costs incurred thereto- fore be paid. Thereupon an order shall be entered propping the case from the trial calendar, subject to reinstatement within one year upon application to the court by either party, in which event it shall be heard at the earliest convenient day. If not so reinstated within the year, the suit shall be dismissed without prejudice to a new one. A new Rule promulgated November 4, 1912. Decisions Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, where upon bill, answer, and replication after time to take testimony had expired the case was dismissed upon submission by defendant, the decree reciting the equities were with defendant who was decreed costs: Held, such dismissal was a bar to a new suit between the parties. Lyon v. Perin, etc., Co., 125 V. S. 698, 31 L. ed. 841. Where a complainant was granted leave to dismiss a bill. Held, that the decree allowing the dismissal of the bill should not be reversed unless it clearly appears that there was a violation of some established rule 558 EQtfitY EtTiiES [iluleLVlII prevailing in equity, or an abuse of the legal discretion of the court. Peno. Pho. Co. v. Columbia Pho. Co., 132 Fed. R. 808-809, 66 C. C. A. 127. After an interlocutory decree on the merits referring the cause to a master to take an account, the defendant acquires such an interest in the suit, that the complainant cannot discontinue as of right. Garner V. Second Nat'l Bk., 67 Fed. R. 833-836, 16 CCA. 86. An order allowing such dismissal will not be made, where a new con- test will thereby be rendered possible over any question therein at issue. 76. 836. Unless there is an obvious violation of a fundamental rule of a court of equity, or an abuse of the discretion of the court, the decision of a motion for leave to dismiss a biU on application of the complaint will not be reviewed on appeal. Pullman Car Co. v. Central Trans. Co., 171 V. 8. 138-146, 43 L. ed. 112. Rule LVIII — Discovery — Interrogatories — Inspection and Production of Documents -^ Admission of Execution or Genuineness The plaintiff at any time after filing the bill and not later than twenty-one days after the joinder of issue, and the de- fendant at any time after filing his answer and not later than twenty-one days after the joinder of issue, and either party at any time thereafter by leave of the court or judge, may file interrogatories in writing for the discovery by the opposite party or parties of facts and documents material to the sup- port or defense of the cause, with a note at the foot thereof stating which of the interrogatories each of the parties is required to answer. But no party shall file more than one set of interrogatories to the same party without leave of the court or judge. If any party to the cause is a public or private corporation, any opposite party may apply to the court or judge for an order allowing him to file interrogatories to be answered by any officer of the corporation, and an order may be made accordingly for the examination of such ofiicer as may appear to be proper upon such interrogatories as the court or judge shall think fit. Copies shall be filed for the use of the interrogated party and shall be sent by the clerk to the respective solicitors of Rule LVIII] EQUITY RULES 559 record, or to the last known address of the opposite party if there be no record solicitor. Interrogatories shall be answered, and the answers filed in the clerk's office, within fifteen days after they have been served, unless the time be enlarged by the court or judge. Each interrogatory shall be answered separately and fully and the answers shall be in writing, under oath, and signed by the party or corporate officer interrogated. Within ten days after the service of interrogatories, ob- jections to them, or any of them, may be presented to the court or judge, with proof of notice of the purpose so to do, and answers shall be deferred until the objections are deter- mined, which shall be at as early a time as is practicable. In so far as the objections are sustained, answers shall not be required. The court or judge, upon motion and reasonable notice, may make all such orders as may be appropriate to enforce answers to interrogatories or to effect the inspection or pro- duction of documents in the possession of either party and containing evidence material to the cause of action or defense of his adversary. Any party failing or refusing to comply with such an order shall be liable to attachment, and shall also be liable, if a plaintiff, to have his bill dismissed, and, if a defendant, to have his answer stricken out and be placed in the same situation as if he had failed to answer. By a demand served ten days before the trial, either party may call on the other to admit in writing the execution or genuineness of any docxanent, letter or other writing, saving all just exceptions; and if such admission be not made within five days after such service, the costs of proving the docu- ment, letter or writing shall be paid by the party refusing or neglecting to make such admission, imless at the trial the court shall find that the refusal or neglect was reasonable. A new Rule promulgated November 4, 1912. Decisions Complainant is entitled to a discovery only of such documents and facts as will aid in the maintenance of his title or cause of action. Kelley V. Boettcher, 85 Fed. R. 55-60, 29 C. C. A. 14. The statutes permitting parties to be called as witnesses and exam- 560 EQUITY RULES [Rule LVIII ined have not curtailed the power of courts of equity to compel a dis- covery. 76. 67. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held, a bill in equity for a discovery merely was unnecessary since a party might be examined as a witness. Heath v. Erie R. Co., 9 Bhich}. 316; Fed. Cases, 6,307. Bills for discovery solely are not generally sustained at this day. Ex parte Boyd, 105 U. S. 647-657, 26 L. ed. 1200. A State statute authorizing examination of defendant on oath before trial has no application to suits in equity in United States courts. Dravo v. Fabel, 132 U. S. 487, 33 L. ed. 422. After defendant has answered interrogatories but evasively, the court may give plaintiff leave to put additional interrogatories so as to compel a direct and positive disclosure. Langdon v. Goddard, 3 Story, 13; Fed. Cases, 8,061. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held, no one but a defendant could be compelled to answer interrogatories in a bill. French v. First Nat. Bank, 7 Ben. 488; Fed. Cases, 5,099. The great weight of authority, as well as a due regard for the right of the community to have the wheels of justice unclogged, as far as may be consistent with the liberty of the individual, leads us to reject the doc- trine that a witness may avoid answering any question by the mere statement that the answer would criminate him. The true rule is that it is for the judge, before whom the question arises, to decide whether an answer to the question put may reasonably have a tendency to cnimi- nate the witness, or to furnish proof of a Unk in the chain of evidence necessary to convict him of crime. Taft, J., in Ex parte Irvine, 74 Fed. R. 954-960. The reasons for refusing to answer interrogatories should be dis- tinctly stated so the court may be able to judge whether the refusal stands upon sufKcient grounds. Boyer v. Keller, 113 Fed. R. 580-581. If defendant attempts to protect himself from answering by demurrer he is also obliged to specify the reasons for asking protection. lb. 581. The facts which entitle a witness to protect himself from answering must be stated so the court may upon those facts decide whether he is jsrotected. The right to call the defendant as a witness does not justify the court in docUning to require interrogatories to be answcKed, since Rule LIX] EQUITY RULES 561 this practice often enables the evidence to be put in the pleadings with great benefit. Slater v. Banwell, 50 Fed. R. 150-151. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, HM, where he did not derive the information in his official capacity, an officer of a corporation, complainant, could not be made defendant to a cross-bill for the purpose of discovery, it being a rule that a mere witness cannot be joined for the purposes of discovery, and this rule has been extended to members of a corporation who are not officers. McComb V. Chicago, St. L. & N. Or. Co., 7 Fed. R. 426-428. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held, a corporation must answer under its corporate seal and not under oath, although the bill prayed for an answer upon the oath of its proper officers. French v. First Nat. Bank, 7 Ben. 488; Fed. Cases, 6,099. Upon such prayer, Held, that a corporation was not bound to answer, and that the officers of the corporation could not be compelled to answer because they were not parties. lb. Where a corporation is the sole party defendant it is its duty to put in a true and complete answer, if required, the same as a natural person, except that it puts in its answer under the corporate seal. To enable it to make a complete answer it must cause diligent examination to be made of all documents in its possession. Continental Bank v. Heilman, 66 Fed. R. 184. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held, it was the usual rule to join some principal officer of the corporation as a party in a suit for discovery. 7b. Rule LIX — Reference to Master — Exceptional, not Usual Save in matters of account, a reference to a master shall be the exception, not the rule, and shall be made only upon a showing that some exceptional condition requires it. When such a reference is made, the party at whose instance or for whose benefit it is made shall cause the order of reference to be presented to the master for a hearing within twenty days succeeding the time when the reference was made, unless a longer time be specially granted by the court or judge; if he shall .omit to do so, the adverse party shall be at liberty forthwith to cause proceedings to be had before the master, at the costs of the party procuring the reference. A new Rule promulgated November 4, 1912. 36 562 EQUITY EULES [Rule LIX Decisions Complex and intricate accounts ought to be referred to a master. Dubouig de St. Colombe v. United States, 7 Pet. 625-626, 8 L. ed. 807. It is in the discretion of courts to ascertain the facts themselves, if the testimony will enable them to do so, instead of referring them to a master. Field v. Holland, 6 Cranch, 822, 3 L. ed. 136. Where the court has means to satisfactorily take the account and is disposed to do so, the inquiry will not be referred to a master unless both sides desire it. Jewett v. Cunard, 3 Wood & M. 277; Fed. Cases, 1,710. The court itself may state the account after an examination of the testimony taken by the master if for any reason it seems proper to do so. Wheeler v. Billings, 72 Fed. R. 301-304, 181 C. C. A. 573. A proper case for the exercise of the court's discretion is where the court has reason to beUeve that if the master's report was filed in the ordinary form it would be compelled on exceptions filed thereto, to examine and review all the testimony on which the master's findings were based, and that by stating the account itself, it might speed the cause. lb. Where the bill presents a case in which it is necessary an account be taken it may be referred to a master on the presentation of the bill without notice to the defendant. Briggs v. Neal, 120 Fed. R. 224-227, 56 CCA. 572. Upon a creditor's bill brought on behalf of such creditor and such other creditors as may become parties, the usual and correct course is to open a reference in the master's office, and give other creditors having valid claims against the fund an opportunity to come in and have the benefit of the decree. Johnson v. Waters, 111 U.S. 640-674, 28' L. ed. 547. When there are matters to be investigated which, although under the province of the court, are such that the presiding judge cannot at the hearing effectually deal with, they should be referred to a master to inquire and impart the necessary information. Coosaw Min. Co. v. Farmer's Min. Co., 67 Fed. R. 31-33. It is discretionary with the court to refer the case back to a master to reopen the proofs. New evidence discovered after the hearing before the matter is closed, may in proper cases be ground for a bill of review. A defendant is not concluded by the refusal of the court on mere affi- davits to refer the cause back to the master. Thompson v. Wooster, 114 U. S. 104-118, 29 L. ed. 105. RuleLX] EQUITY EULliS 563 Where an account is stated by a master instead of setting it aside as a whole, the court should pass its judgment upon each of the exceptions, or remand the account with directions as to the principles upon which it should be stated. Kelsey v. Hobbey, 16 Pet. 269-276, 10 I., ed. 961. A cause cannot be referred to a master to report his findings of fact and conclusions of law over the objection of one of the parties. Parties to a suit in equity are entitled to the judgment of the court below upon the issues and especially on the points of law raised in the controversy. Garinger v. Pahner, 126 Fed. R. 906-910, 61 CCA. 436. Upon written consent of the parties entered as an order of the court, all questions of law and fact may be referred to a master and his finding is usually conclusive. Kimberly v. Arms, 129 U. S. 512-524, 32 L. ed. 764. The court cannot of its own motion, or upon the request of one party, refer questions of law to a master. lb. 624. Rule LX — Proceedings Before Master Upon every such reference, it shall be the duty of the master, as soon as he reasonably can after the same is brought before him, to assign a time and place for proceedings in the same, and to give due notice thereof to each of the parties, or their solicitors; and if either party shall fail to appear at the time and place appointed, the master shall be at liberty to proceed ex parte, or, in his discretion, to adjourn the exam- ination and proceedings to a future day, giving notice to the absent party or his solicitor of such adjournment; and it shall be the duty of the master to proceed with all reasonable dili- gence in every such reference, and with the least practicable delay, and either party shall be at liberty to apply to the court, or a judge thereof, for an order to the master to speed the proceedings and to make his report, and to certify to the court or judge the reason for any delay. Same as Rule 75 of the Rules adopted March 2, 1842. Decisions The master should appoint a day for proceedings and give notice to the parties or their solicitors. If the plaintiff requires evidence in the possession of the defendant he should be ordered to produce it. Kero- sene L. H. Co. V. Fisher, 1 Fed. B. 91-92. Where the master has ordered several adjournments, it is in his dis- cretion to further adjourn the hearing to accommodate counsel of one 564 EQUITY' RULES [Rules LXI, LXlI party over objection of counsel for the other party. Third National Bank v. National Bank, 86 Fed. R. 852-857, 30 CCA. 436. The court will decline to give directions as to the order to be observed in taking testimony, or other proceedings before the master. Wooster V. Gumbirnner, 20 Fed. R. 167. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held, witnesses who had already been examined before the court could not again be examined before the master without a special order of the court. Such an order when obtained would be limited to such facts as were not testified to by the witnesses. Jenkins v. Eldridge, 3 Story, 299; Fed. Cases, 7,267. Rule LXI — Master's Report — Documents Identified bid not Set Forth In the reports made by the master to the court, no part of any state of facts, account, charge, affidavit, deposition, ex- amination, or answer brought in or used before him shall be stated or recited. But such state of facts, account, charge, affidavit, deposition, examination, or answer shall be identi- fied, and referred to, so as to inform the court what state of facts, account, charge, affidavit, deposition, examination, or answer were so brought in or used. Same as Eule 76 of the Eules adopted March 2, 1842. Decisions The master's report settles no rights. Its office is to present the case to the court, and the court's action, not the report, determines the rights of the parties. Railroad Co. v. Swasey, 23 Wall. 405-410, 23 L. ed. 136. The report of the master is received as true where no exceptions are taken. Harding v. Handy, 11 Wheat. 103-127, 6 L. ed. 429. The purpose of filing exceptions before the master is to save time and give him an opportunity to reconsider his opinions. Story v. Livingston, 13 Pet. 366, 10 L. ed. 200. The exceptions should state article by article the parts of the report which are intended to be excepted to. 76. Rule LXll— Powers of Master The master shall regulate all the proceedings in every hear- ing before him, upon every reference; and he shall have full Rule LXIi] EQUITY RULES 565 authority to examine the parties in the cause, upon oath, touching all matters contained in the reference; and also to require the production of all books, papers, writings, vouchers, and other documents applicable thereto; and also to examine on oath, viva voce, all witnesses produced by the parties before him, or by deposition, according to the acts of Congress, or otherwise, as here provided; and also to direct the mode in which the matters requiring evidence shall be proved before him; and generally to do all other acts, and direct all other inquiries and proceedings in the matters before him, which he may deem necessary and proper to the justice and merits thereof and the rights ,of the parties. Substantially the same as Rule 77 of the Rules adopted March 2, 1812. Statutory Provisions Sec. 868, Rev. Stats., amended June 29, 1906, c. 3608, 34 Stat. L. 618, U. S. Comp. Stats. Supp. 1901, p. 242, reads as follows: "Sec. 858. The competency of a witness to testify in any civil action, suit or proceeding in the courts of the United States shall be determined by the laws of the State or territory in which the court is held." Decisions The master is the court's representative, and it is his duty to pass on all the questions of procedure as they come before him and hear the parties fully, to relieve the court of the necessity of passing on the materiality of disputed questions as they may arise in the progress of the hearing, but the court will correct the errors, if any, upon the coming in of his report upon exceptions properly taken. Hoe v. Scott, 87 Fed. B. 220. The extent of the master's inquiry and whether he should take or refuse evidence are within his province to pass upon. lb. The master has no authority beyond his commission. Even with the consent of the parties he may not go into matters not referred to him. Gordon v. Hobart, 2 Story C. C. 243; Fed. Cases, 5,608. The master has the same discretion to order the proceedings befoie him which the court would have. Story v. Livingston, 13 Pet. 359-368, 10 L. ed. 200. The master has no right to review, reject, or disregard the order, directions or decrees of the court under which he is appointed. Felch V. Hooper, 4 Clifford, 489; Fed. Cases, 4,718, 566 teQtJlTY RULES [Rule LXlI The courts in certain cases will grant a new hearing after decree, but no review of the matters determined in its decree can be had upon ex- ceptions to the master's report. lb. Upon certification by the special examiner to compel a witness to answer an interrogatory, Held by the court, that in case of doubt as to the relevancy or propriety of questions asked on cross-examination the witness should be required to answer. Whitehead & Hoag Co. v. O'Cal- lahan, 130 Fed. R. 343, 64 CCA. 588. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, under former Rule 77 the defendant might be required to produce correspondence applicable to the subject-matter of the refer- ence. Goss Printing Press Co. v. Scott, 119 Fed. B. 941. An officer of a defendant corporation can be compelled to bring its books before the master and his failure to so do wiU subject him to a penalty for contempt. The authority is directly conferred by the Rule. Erie Ry. Co. v. Heath, 8 Blatchf. 413; Fed. Cases, 4,513. In this case an attachment was issued, non-bailable until the books were produced, and then to be bailable in a named sum. An exception should always be taken on the spot to each ruling of the master that the party intends to contest, and it is the duty of the master to note the fact in his minutes. The exception need not be drawn up in form. The reason for the practice exists in the fact that, if the party in whose favor the ruUng was made is notified that an ex- ception is taken and the question is to be revised, he can waive the point by admitting or withdrawing the evidence. Troy Iron & N. Factory V. Corning, 6 Blatchf. 328; Fed. Cases, 14,196. Where evidence is offered before the master and its competency or admissibility is objected to by the adverse party, the master should receive the evidence subject to the objection and this action may be reviewed by the court after the report comes in. Kansas L. & T. Co. v. Electric Ry., etc., Co., 108 Fed. B. 702-704. AU questions upon the evidence, its materiality and sufficiency, are to be determined by the trial court and after it the appellate court. Nelson V. United States, 201 U. S. 92, 50 L. ed. 673. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held, former rules prescribed by the Supreme Court, 77 to 83, established a simple and expeditious procedure in themselves, dis- pensing with the old formalities of the Court of Chancery in England. Hatch V. Indianapolis and S. R. Co., 9 Fed. R. 856-859. Held, further: Where testimony had been taken upon a reference embracing ques- tions of law and fact and the case had been argued before the master, RuleLXIII] EQUITY RULES 567 a party was not entitled to receive a draft of the report, and again argue the same before it was filed. lb. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held, the general rule of chancery that if the complainant examined a defendant as a witness it was a waiver of his right to a decree against him was not appUcable in the Federal courts, as former Rule 77 authorized the master to examine the parties. Jenkins v. Greenwald, 1 Bond, 126; Fed. Cases, 7,270; 13 Fed. Cases, 552. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held, the object of former Rule 77 was to obviate the neces- sity of providing specially in each case for the examination of parties before the master. Foote v. Silsby, 3 Blatchf. 507; Fed. Cases, 4,920. The plaintiff might call and examine the defendant before the master. lb. Held, Rule 77 gave no right to defendants to be sworn and examined as witnesses upon their own apphcation against the objections of the op- posing party. The party defendant could not be called by the master for the purpose of giving testimony in his own behalf. Under sec. 858, Rev. Stats., as amended by Act June 29, 1906, c. 3608, 34 Stat. 618 ( f7. S. Comp. Stats. Supp. 1909, p. 242) which prescribes that in civil suits in the Federal courts the competency of a witness shall be determined by the laws of the State where the action is brought, where by the laws of such State a witness may not testify concerning trans- actions for communications between the witness and a deceased person, such prohibition will be enforced in a suit in the Federal court. Rowland V. Biesecker, 185 Fed. R. 515, 107 CCA. 615. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held, under Equity Rule 62 taking depositions before an examiner in an equity suit is not a part of a judicial trial and the public have not a right to be present as spectators. United States v. United Shoe, etc., Co., 198 Fed. R. 870-875. Until a deposition has been presented to court neither party has a right to be heard upon the competency, materiality or relevancy of the testimony. lb. The master in his discretion may take testimony outside of the dis- trict of his appointment. Consolidated Fastner v. Columbia B. & F. Co., 85 Fed. R. 54. Rule LXIII — Form of Accounts Before Master All parties accounting before a master shall bring in their respective accounts in the form of debtor and creditor; and 568 EQUITY RULES [Rules LXIV, LXV any of the other parties who shall not be satisfied with the account so brought in shall be at liberty to examine the ac- counting party viva voce, or upon interrogatories, as the master shall direct. Same as Rule 79 of the Rules adopted March 2, 1S42. Decisions The Rule is almost a copy of Rule 61 of English chancery practice adopted in 1828 which required the accounting party to state his account in the form of debit and credit, which being verified by the party stands as a basis, in which the other party must show error. The old mode of taking accounts by proving every item was abrogated by former Rule 79. PuUiam v. PuUiam, 10 Fed. B. 23-31. Whether the rule applicable to require sworn statements of account upon reference to a master for an accounting in an infringement suit not decided, but mandamus granted to present the question by petition to the District Court. Re Bechworth, 201 Fed. B. 518, 119 CCA. 614. The facts in this case were upon refusal of a witness to submit sworn statements of account in response to a summons issued by the master upon a reference, and motion to quash the summons; the master denied the motion to quash and certified to the District Court the question of enforcement of his order as for contempt. The District Court held old Rule 79 inapplicable and directed the summons be quashed. Held the ruling withheld submission of statements of the account and was error. lb. Rule LXIV — Former Depositions, etc., May Be Used Before Master All affidavits, depositions and documents which have been previously made, read, or used in the court upon any pro- ceeding in any cause or matter may be used before the master. Same as Rule 80 of the Rules adopted March 2, 1842. I Rule LXV — Claimants Before Master Examinable by Him The master shall be at liberty to examine any creditor or other person coming in to claim before him, either upon written interrogatories or viva voce, or in both modes, as the nature of the case may appear to him to require. The evi- dence upon such examinations shall be taken down by the master, or by some other person by his order and in his Rule LX VI] EQUITY RULES 569 presence, if either party requires it, in order that the same may be used by the court if necessary. Same as Rule 81 of th&Rulea adopted March 2, 1842. RuXiE LXVI — Return of Master's Report — Exceptions — Hearing The master, as soon as his report is ready,' shall return the same into the clerk's office and the day of the return shall be entered by the clerk in the Equity Docket. The parties shall have twenty days from the time of the filing of the report to file exceptions thereto, and if no exceptions are within that period filed by either party, the report shall stand confirmed. If exceptions are filed, they shall stand for hearing before the court, if then in session, or, if not, at the next sitting held thereafter, by adjournment or otherwise. Amendment of Rule 83 of the Rules adopted March 2, 1842. Decisions In the discretion of the court, leave may be granted to file exceptions to the master's report after the time limited has expired. Hatch v. Indianapolis & S. R. Co., 9 Fed. R. 856-860. Upon exceptions to the master's report all previous interlocutory orders are open to revision and the court may change its opinion pre- viously expressed and dismiss the bill. Fourniquet v. Perkins, 16 How. 83-86, 14 L. ed. 854. The exceptions to the report need not be formally overruled or al- lowed, where the final decree makes plain which are allowed and which disallowed. Oliver v. Piatt, 3 How. 333-412, 11 L. ed. 622. An assignment of error to the decree, gives the right to a hearing in the appellate court upon an error well assigned, although no exception was filed to the master's report. Cable v. U. S. Life Ins. Co., Ill Fed. R. 19-26, 49 C. C. A. 216. Where no exceptijons are filed to a master's report the court can con- sider errors which appear on its face. Himl ey v. Rose, 5 Cranch, 313- 316, 3 L. ed. 111. Immaterial errors are no ground for setting aside or recommitting the master's report. Mason v. Crosby, 3 Woodb. & M. 258; Fed. Cases, 9,236. 570 EQUITY RULES [Rule LXVI The office of the master is somewhat like that of a jury in courts of law. When the master has once decided matters of fact and no legal question is involved in them, his report should stand, unless reasons exist as strong as would justify setting aside a verdict. lb. A clear mistake, or a palpable abuse of power, should be corrected. But the court will not retry and re-examine questions of fact raised before the master. lb. Strictly, in chancery practice, no exceptions to a master's report can be made which are not taken before the master. Story v. Livingston, 13 Pet. 359-366, 10 L. ed. 200. Unless the court see reason to be dissatisfied with the report and refer it to the master to review, with hberty to the party to take objec- tion to it. lb. 366. Exceptions to a master's report are not in the nature of a special demurrer. lb. All that is necessary is that the exception shall distinctly point out the finding and conclusion of the master which it seeks to reverse. Having done so it brings up for examination all questions of fact and of law arising upon the report relative to that subject. Foster v. God- dard, 1 Black, 506-509, 17 L. ed. 228. Where the exceptions are vague and general, and require of the court the performance of duties which belong to the master and counsel, they may be overruled. Stanton v. Alabama & C. R. Co., 2 Woods, 506; Fed. Cases, 13,296. General allegations of error in the report without pointing out the particulars are clearly insufficient. Green v. Bishop, 1 Cliff. 186; Fed. Cases, 5,763. The court will not perform the work which a master should do, but may, if it is shown to be erroneous, refer it back to rectify any mistake. Chandler v. Pomroy, 87 Fed. R. 262-267. Every presumption is in favor of the correctness of the master's decision on questions of fact. lb. 266. Where the reference does not require the testimony reported, in the absence of the master's certificate that all the evidence taken was re- ported, his conclusion cannot be impeached. Sheffield & B. C. I. & R. Co. V. Gordon, 151 U. S. 285-293, 38 L. ed. 167, Oct. T., 1893. Exceptions to the report of a master should point out specifically the errors relied upon, to apprise the opposite party, and that the master may have an opportunity to correct his errors or reconsider his opinion. lb. 290, RuleLXVi] EQUITY RtJLE& 671 In passing on exceptions to a master's report, the exceptions thereto are to be regarded so far only as they are supported by the statements of the master, or by evidence brought to the attention of the court by particular reference in the exceptions. Harding v. Handy, H Wheat. 103-126, 6 L. ed. 429. Such testimony need not be reported farther than it is relied on to support, explain, or oppose particular exceptions. lb. 127. The presumptions are in favor of the master's report upon matters of fact. Yet if it cannot stand scrutiny upon argument it is entitled to revision by the court. Webb v. Powers, 2 Woodb. & M. 497; Fed. Cases, 17,323. In the absence of exceptions there can be no inquiry into the correct- ness of the findings of fact in the master's report; but the master's mis- taken apprehensions of the legal consequences of the fact reported may be considered without exceptions. Burke v. Davis, 81 Fed. R. 907-910, 26 CCA. 675. The findings of the master are not absolutely binding upon the court, yet they will not be set aside or modified in the absence of some clear error or mistake. Camden v. Stuart, 144 U. S. 104-118, 36 L. ed. 363. Where a cause was referred to a master to take the testimony and report his findings of fact and conclusions of law thereon, unless some obvious error has intervened in the application of the law or some serious mistake has been made in the consideration of the evidence, a decree in accordance with his findings should be permitted to stand. Crawford V. Neal, 144 U. S. 585-596, 36 L. ed. 552. But not where such reference has been made without the agreement of both parties. Bosworth v. Hook, 77 Fed. B. 686-687, 23 CCA. 404. When a reference of the law and facts is made upon motion of one of the parties, the master's finding has not the force of a verdict or the report of a referee, and on exceptions thereto, the court must determine by its own judgment the issue presented. lb. Where the parties have stipulated that the master who takes the proofs may report the same "with his findings of fact and conclusions of law thereon," his findings are conclusive and binding upon the court, so far as they are based upon conflicting evidence, or the veracity of witnesses, or so far as there is evidence consistent with his findings. U. S. Trust Co. V. Mercantile Trust Co., 88 Fed. R. 140-153, 31 CCA. 427. As the case was referred to a master to report not the evidence merely, but the facts of the case and his conclusions of law thereon, we think his 572 teQtJITY RtTLES [Rule LXVII finding, so far as it involves questions of fact, is attended by a presump- tion of correctness similar to that in the case of a finding by a referee, the special verdict of a jury, the finding of a Circuit Court under sec. 649, Rev. Stats. (U. S. Comp. Stats. 1901, p. 525), or in an admiralty caSe appealed to this court. In neither of these cases is the finding absolutely conclusive, as if there be no testimony tending to support it; but so far as it depends on conflicting testimony, or upon the credibility of wit- nesses, or so far as there is any testimony consistent with the finding, it must be treated as unassailable. Davis v. Schwartz, 155 U. S. 631- 636, 39 L. ed. 293, Oct. T., 1894. The conclusions of the master, depending, upon the weigfiing of con- flicting testimony, have every reasonable presumption in their favor, and are not to be set aside nor modified unless there clearly appears to have been error br mistake upon his part. Tilghman v. Proctor, 125 U. S. 136, 31 L. ed. 668. Where by consent a cause is referred to a master to make findings of fact and conclusions of law, exceptions to his findings of fact should be first submitted to the master for his consideration and action so that he may know in what particulars his report is objectionable and be enabled to reconsider his opinion and correct his errors. McNamara v. Home L. & C. Co., 105 Fed. R. 202-204. Where reference has been had upon both fact and law a party may file exceptions to the master's report as to the conclusions of law after the report has been filed in court. Home L. & C. Co. v. McNamara, 111 Fed. R. 822-827, 49 C. C. A. 642. Where the master submitted a draft report to counsel of the respec- tive parties, exceptions to such report are not waived by, failure to file the same with the master, but exceptions to the principal finding may be filed in the court. Jennings v. Dolan, 29 Fed. R. 861-862. It is not necessary that exceptions should specifically point out the unconstitutionality of an act under which the master has given priority to certain claims. Fidelity Ins. & S. D. Co. v. Shenandoah Iron Co., 42 Fed. R. 372-374. Rule LXVII — Costs on exceptions to master's report In order to prevent exceptions to reports from being filed for frivolous causes, or for mere delay, the party whose ex- ceptions are overruled, shall, for every exception overruled, pay five dollars costs to the other party, and for every excep- tion allowed shall be entitled to the same costs. An amendment of Eule 84 of the Eulea adopted March 2, 1842. Rule LXVIII] EQUITY RULES 573 Decisions Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held, solicitor's fees were not included in the term "costs" under this rule. Garretson e. Clark, 17 Blatchf. 256, Fed. Cases, 6,249. Rule LXVIII — Appointment and Compensation of Masters The District Courts may appoint standing masters in chan- cery in their respective districts (a majority of all the judges thereof concurring in the appointment), and they may also appoint a master pro hac vice in any particular case. The compensation to be allowed to every master shall be fixed by the District Court, in its discretion, having regard to all the circumstances thereof, and the compensation shall be charged upon and borne by such of the parties in the cause as the court shall direct. The master shall not retain his report as security for his compensation; but when the compensation is allowed by the court, he shall be entitled to an attachment for the amount against the party who is ordered to pay the same, if, upon notice thereof, he does not pay it within the time prescribed by the court. Substantially the same as Rule 82 of the Rules adopted March 2, 1842. Statutory Provisions No clerk of the District or Circuit Courts of the United States or their deputies shall be appointed a receiver, or a master in any case, except where the judge of said court shall determine that special reasons exist therefor, to be assigned in the order of appointment. Act of Mar. 3, 1879, ch. 183, 20 Stat. L. 415 {U. S. Comp. Stats. Supp. 1911, p. 128, sec. 68, Judicial Code), Act March 3, 1911, oh. 231, 36 Stat. L. 231. Sec. 982, Reo. Stats. (U. S. Comp. Stats. 1901, p. 706). If any at- torney, proctor, or other person admitted to conduct causes in any court of the United States, or of any territory, appears to have multiplied the proceedings in any cause before such court, so as to increase the costs unreasonably and vexatiously, he shall be required by order of the court to satisfy the excess of posts so increased. Decisions It is a matter of discretion whether the examiners shall be special or standing examiners. Van Hook v. Pendleton, 2 Blatchf. 85; Fed. Cases, 16,852. A master being an officer of the court should be selected and ap- pointed by the court. Courts ought not to regard arrangements 574 EQUITY EULES [Rule LXVIlf between counsel as to the appointment and compensation of the master. The compensation of the master should be measured by the amount of work and time required and the responsibility assumed, with due regard to the magnitude of the interests involved. Such compensation should be reasonable but not exorbitant. Finance Committee v. War- ren, 82 Fed. B. 525-527, 27 CCA. 472. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held, former Equity Rule 82 required a master to file his report whether his fees were paid or not, and provided for an attachment to compel payment. Frese v. Biedenfeld, 14 Blatchf. 402; Fed. Cases, 5,111. There is no rule requiring an examiner to file testimony taken by him without payment of his fees. lb. The provisions in a decree for pajTnent to a master of his fees are not subject to be stayed by proceedings for appeal. Myers v. Dunbar, 12 Blatchf. 380; Fed. Cases, 9,990. The master is not a party to the suit, and the provision in the rule for his payment is not subject to be stayed by pipoceedings which stay the execution of the decree inter partes. lb. While the defendants would not be able to recover any moneys paid the master, if successful on appeal, it will be competent for the court on reversal of its decree to regard the amount paid to the master, as part of the costs to be recovered from the opposite party. lb. Motion to require security for costs is in order at any time, if a non- resident is the plaintiff or if extra costs grow out of an order of reference when not contemplated. Huganin v. Thatcher, 18 Fed. B. 105. The fee allowed for each adjournment should be paid by the party asking for the adjournment. Brickill v. The Mayor, etc., 55 Fed. B. 665. Special services should be compensated by a special allowance. Erie Ry. Co. V. Heath, 10 Blatchf. 214; Fed. Cases, 4,516. A stipulation of counsel to increase the fees allowed the special mas- ter above those allowed by the rules of the trial court was disapproved. The receipt of such additional compensation without the sanction of the court is wrong. Be Berkeley, 203 Fed. B. 7-12. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held, in ordinary cases of no special difficulty or labor the master under former Rule 82 should be allowed the compensation al- lowed by the State law to a referee, which in New York is $3.00 a day, RuleLXVIII] EQUITY KULES 575 this being adopted as a general rule, although former Rule 83 left fees in the discretion of the court. Doughty v. West B. & C. Mfg Co 8 Blalchf. 107; Fed. Cases, 4,030. The docket fee allowed by the Act of Feb. 26, 1853, is allowed upon a reference to a master. The hearing before a master is neither "a trial" nor a "final hearing." lb. The clerk has no power to fix the compensation to be allowed. lb. Sec. 982, Rev. Stats. (U. S. Comp. Stats. 1901, p. 706) only permits the court to order that an attorney who has unnecessarily increased the costs shall personally pay the excess of such costs over the amount which was properly incurred. Its purpose is to punish the attorney who vexatiously increases costs. Motion Picture Patents Co. v. Steiner, 201 Fed. R. 63, 119 C. C. A. 401. So much of a decree dismissing a bill as awarded an extra allowance as costs is appealable where the contention is that there is no law per- mitting such an award. 76. In a suit to recover damages under the act to regulate commerce approved February 4, 1887, 24 Slat. 379, c. 104 {U. S. Comp. Stats. 1901, p. 3154) where the unliquidated damages were over $2,000 but the jury awarded less than $500, Held an allowance for attorney's fees taxed as costs was error. The court in such case has power only to entertain and decide the case, but it is forbidden to allow costs (by sec. 968, Rev. Stats., U. S. Comp. Stats. 1901, p. 702). Delaware, L. & W. R. Co. V. Lyne, 193 Fed. R. 984, 113 C. C. A. 604. If the risk of losing costs is to be avoided in suits under the interstate commerce act involving small amounts, the action should be brought in the appropriate State court. 76., p. 606. An order appointing a standing master need not be recorded and is not open to collateral attack on the ground that one is indispensable. Seaman v. Northwestern M. L. Ins. Co., 86 Fed. R. 493-497, 30 CCA. 212. The parties may assent to the appointment of a deputy clerk as master and this consent need not be specified in the decree. Fischer V. Hayes, 22 Fed. R. 92-93. To the same effect Briggs v. Neal, 120 Fed. R. 224, 56 C C. A. 578. Though the appointment of clerks or other deputies is forbidden by the Act of Mar. 3, 1879, 20 Stat. L. 415, except when the judge shall de- termine that special reason exists therefor, to be assigned in the order of appointment, the omission of the judge to assign such reason in the order is not reversible error, where the opinion states a special reason for the appointment. Briggs v. Neal, 120 Fed. R. 224r-227, 56 CCA. 578. 576 EQUITY RULES [Rule LXIX Rule LXIX — Petition for Rehearing Every petition for a rehearing shall contain the special matter or cause on which such rehearing is applied for, shall be signed by counsel, a,nd the facts therein stated, if not ap- parent on the record, shall be verified by the oath of the party or by some other person. No rehearing shall be granted after the term at which the final decree of the court shall have been entered and recorded, if an appeal lies to the Circuit Court of Appeals or the Supreme Court. But if no appeal lies, the petition may be admitted at any time before the end of the next term of the court, in the discretion of the court. An amendment of Rule 88 of the Rules adopted March 2, 1S42. Decisions If a petition for rehearing is presented, a motion therefor made in season and entertained by the court, the time limited for a writ of error or appeal does not begin to run until the petition or motion is disposed of. Aspen M. & S. Co. v. BiUings, 150 U. S. 31-36, 37 L. ed. 988, Oct. T., 1893. In such case although the decree may be entered in form, such entry does not discharge the parties from attendance in the cause; they are bound to follow the petition for rehearing until disposed of. lb. 36. The rule construed to mean that application must be made for re- hearing during the term, which being entertained the decree is thereby prevented from passing beyond the control of the court, which may grant or deny the rehearing after the term. lb. 37. Rehearings after a decree are not a matter of right, but rest in the sound discretion of the court. Daniel v. Mitchell, 1 Story, 198; Fed. Cases, 3,563. Where petitioned for on the ground of newly-discovered evidence they are governed by the same consideration as cases where leave is asked to file a bill of review after a decree, upon like ground. lb. A mistake of law by counsel, as to the pertinency or force of the evi- dence, is not ground for rehearing. Baker v. Whiting, 1 Story, 218; Fed. Cases, 786. A rehearing will not be granted on the ground of new evidence, where the party could by reasonable inquiry and diligence have obtained it before the final hearing. lb. Where rehearing on the ground of newly-discovered evidence is granted it will be upon the fiUng of a supplemental bill. lb. RuleLXIXj EQUITY RULES 577 The burden is upon the applicant to show that the omission to pro- duce the testimony was not due to negligence, and that he could not by proper diligence and inquiry have obtained knowledge of its existence before the decree. Gilette «. Bate Refrigerating Co., 12 Fed. R. 108-110. The facts and circumstances must be set out so that the court can draw its own conclusions. lb. That testin^ony fully considered is applied in an argument to one point, and by the court applied to another, is not ground for a rehearing. Hunter v. Marlboro, 2 Woodb. & M. 168; Fed. Cases, 6,908. An application for a rehearing must usually state some reason that would constitute good ground for a new trial at common law. lb. It is not ground for a new hearing that some of the evidence is not referred to in the opinion of the court, if it was argued by counsel and considered by the court. Bently v. Phelps, 3 Woodb. & M. 403; Fed. Cases, 1,332. Rehearings in equity are only allowed where some plain, obvious, and palpable error or omissions, or mistake has been made, or where some- thing material to the decree is brought to the notice of the court which has before escaped its attention. Jenkins v. Eldredge, 3 Story, 299; Fed. Cases, 7,267. A rehearing will not be granted upon a certificate of counsel stating errors of law generally, and not pointing out any specific mistake, except that the court came to a wrong conclusion. Tufts v. Tufts, 3 Woodb. & M. 426; Fed. Cases, 14,232. If the affidavits filed in support of the motion show that the newly- discovered evidence is merely cumulative, a rehearing will be denied. Rogers v. Marshall, 13 Fed. B. 59. Where the newly-discovered evidence would not have varied the de- cree, a rehearing will be denied. Adair v. Thayer, 7 Fed. B. 920. To grant a new hearing on newly-discovered evidence, the evidence offered should of itself be such as to make it probable that its intro- duction would change the result. Munson v. The Mayor, 11 Fed. B. 72-73. Final decrees may be modified upon motion during the terms at which they are rendered. Raikoad Co. v. Mayor, 7 Wall. 575, 19 L. ed. 275. The provisions of the Rule are more liberal than the practice which preceded it, but the Supreme Court did not mean to adopt the English 37 578 EQUITY BULBS [Rule LXIX practice on the subject. Emerson v. Davies, 1 Woodb. & M.21; Fed, Cases, 4,437. If the petition for rehearing be filed during the term, the court re- tains jurisdiction over the case and may subsequently decide upon the application. Giant Powder Co. v. California V. P. Co., 5 Fed. B. 197- 202. The petition is not an ex parte proceeding. It can only be presented on notice, and only considered after the other side have had an oppor- tunity to answer it. lb. 199. The practice in this country is essentially different from the old practice in the Enghsh courts, where on petition, approved by the certificate of two counsel, leave was granted almost as a matter of course. lb. 200. The decisions of the courts of England and of the American States have no force in the Federal court upon the question, since the Rule is imperative. Scott v. Hore, 1 Hughes, 163; Fed. Cases, 12,535. A decree rendered by default, because of the neglect of counsel can- not be opened on a motion for rehearing. lb. Where no appeal lies, a rehearing may be granted if filed before the end of the next term after the final decree. Clarke v. Threlkeld, 2 Cranch C. C. 408; Fed. Cases, 2,865. An exception to the general rule that the jurisdiction of the court over its decrees terminates with the close of the term at which they were rendered, is made by the Rule in cases where no appeal Ues. Moelle V. Sherwood, 148 U. S. 21-26. The effect of the Rule is to deprive the court of the power to grant a rehearing after the lapse of the term next succeeding the entry of the final decree. Glenn v. Dimmock, 43 Fed. B. 550-551. A party taking a lease from a receiver must be deemed to have knowl- edge that the court has full power to vacate any decree it has made during the term at which it was rendered. Henderson v. Carbondale Coal & C. Co., 140 U. S. 25-40, 35 L. ed. 332. The appUcation for rehearing must be made to the court which rendered the decree. An appellate court cannot on motion set aside the decree of the court below and grant a rehearing. Roemar v. Simon, 91 U. S. 149, 23 L. ed. 267. The application to the court below cannot be made after the term at which the decree was rendered. 76. 150. RuleLXIX] EQUITY RULES 579 The granting or refusing a rehearing rests in the sound discretion of the. court rendering the decree and furnishes no ground for an appeal. Buffington v. Harvey, 95 U. S. 99-100, 24 L. ed. 381. Where it is the practice to keep the term of court open until the statu- tory time has arrived to open the next term, a petition for rehearing, filed before the term at which the decree was rendered has been ad- journed "sine die," is within the time prescribed by the Rule. First National Bank v. Woodrum, 86 Fed. R. 1004-1005. A motion to reopen the decree and take further evidence and reargue the case is not a motion for a rehearing, and, therefore, is not governed by the strict rules which apply to rehearings, technically so called, but is rather a motion addressed to the discretion of the court with reference to the order of trial. So held in a suit for infringement of patent where a decree for injunction and an account had been rendered. Campbell, P. P. & Mfg. Co. V. Harden, 70 Fed. R. 339-340. Where a decree dismissing a bill for infringement of patent is reversed, and on the mandate a decree for an accounting is made thereafter by the lower court, that court may afterwards allow amendments to the pleadings and grant a rehearing for the introduction of newly-discovered evidence. C. A. Potts & Co. v. Creager, 71 Fed. R. 574r-576. The Rule concerns only petitions for rehearing filed prior to the taking of an appeal; it does not apply to the filing of a supplemental biU in the nature of a bill of review. In re Gamewell Fire A. Telegraph Co., 73 Fed. R. 908-910, 20 C. C. A. 111. When a decree of the Circuit (District) Court has been decided on appeal, that court cannot vary the decree rendered in the appellate court, nor examine it for any other purpose than execution, nor give any other or further relief, nor review it even for apparent error upon any matter decided on appeal. In re Sandford Fork and Tool Co., 160 U. S. 247-255, 40 L. ed. 414. But the Circuit (District) Court may consider and decide any mat- ters left open by the mandate of the appellate court, and its decisions of such matters may be reviewed by a new appeal. lb. 256. A decree entered on report of a master fixing the amount and priority of claims against an insolvent corporation and ordering a distribution of a fund, is a final decree, from which an appeal lies, and, under former Rule 88 a petition for rehearing could not be entertained by the Circuit Court after the term at which the decree was entered, although a portion of the fund ordered to be distributed was still in the registry of the court. Halstead v. Forest Hill Co., 109 Fed. B. 820-822. 580 EQUITY EULES [Rule LXX To the same effect, Hoffman v. Knox, 50 Fed. R. 484r-489, IC.C.A. 535. Where an appellate court gives permission to apply to the trial court to file a bill of review it may pass upon the questions, and determine the parties' right to file a bill of review, or it may grant permission and leave the trial court to pass upon its duty to give or refuse leave to file the bill. Board of Councihnen v. Deposit Bank, 120 Fed. B. 165-172. The proper remedy where the court strikes out claims under sec. 57g of the Bankruptcy Act of 1898 is by appeal, and not a petition for re- vision. In re Dickson, 111 Fed. R. 726-729, 49 CCA. 574. Rule HKK-^Suits by or Against Incompetents Guardians ad litem to defend a suit may be appointed by the court, or by any judge thereof, for infants or other persons who are under guardianship, or otherwise incapable of suing for themselves. All infants and other persons so incapable may sue by their guardians, if any, or by their prochein ami; subject, however, to such orders as the court or judge may direct for the protection of infants and other persons. Same as Rule 87 of the Rules adopted March 2, 1842. Decisions A decree against a woman shown by the bill to be both a minor and feme covert will be reversed where no appearance by or for her was entered, and no guardian ad litem was appointed. O'Hara v. MacCon- nell, 93 U. S. 160-162, 23 L. ed. 842. The duty of watching over the interests of infants devolves in great measure upon the court. While not reversible error, it excites attention where the record shows infants had parents' and a stranger is appointed guardian ad litem. Bank v. Ritchie, 8 Pet. 128-144, 8 L. ed. 890. Such guardian may not be appointed without bringing the minors into court or issuing a commission for the purpose. The adversary counsel should not be allowed to name the guardian. lb. 144. Even if the answer of the guardian consents to the decree, the court should satisfy itself as to the facts. /6. 144. A decree against an infant made by consent of counsel though un- usual, if made without fraud or collusion is binding upon the infant, and cannot be set aside by rehearing, appeal, or review, the infant being usually bound by acts done in good faith by his solicitor or counsel in the course of the suit, to the same extent as a person of full age. Thomp- son V. Maxwell Land Grant Co., 168 U. S. 451^63, 42 L. ed. 539. RuleLXXI] EQUITY EULES 581 Where infants answer by a guardian ad litem submitting their rights to the protection of the court, it is the court's duty to give the minors the benefit of the statute of limitations. White v. Miller, 158 U S 128- 146, 39 L. ed. 927, Oct. T., 1894. In State courts the usual practice is to bring in non-resident minors by appointment of a guardian ad litem, and thus subject them to a decree for sale or partition of lands. Manson v. Dancanson, 166 U. S 540 41 L. ed. 1108. ' ' Federal courts can only appoint guardians ad litem for infants where property of an infant is involved in legal proceedings before them. N. Y. Life Ins. Co. v. Bangs, 103 U. S. 435, 26 L. ed. 582. A State statute directing the guardian to appear and defend does not do away with the necessity of personal service of process on the infant where a personal contract or right of an infant is being litigated. lb. Rule LXXI — Form of Decree In drawing up decrees and orders, neither the bill, nor answer, nor other pleadings, nor any part thereof, nor the report of any master, nor any other prior proceeding, shall be recited or stated in the decree or order; but the decree and order shall begin, in substance, as follows: "This cause came on to be heard (or to be further heard, as the case may be) at this term, and was argued by counsel; and thereupon,' upon consideration thereof, it was ordered, adjudged and decreed as follows, viz:" (Here insert the decree or order.) Same as Rule 86 of the Kulea adopted March 2, 1842. Decisions Held, it is proper for the court to announce in an interlocutory decree the opinion it has formed as to the rights of the parties, and await a master's report upon matters of account before final decree. Forgay v. Conrad, 6 How. 201-206, 12 L. ed. 404. Under the Rule the decree may state conclusions of fact as well as of law and often does so. Putnam v. Day, 22 Wall. 60-67, 22 L. ed. 764. Under the English practice the decree always recites the substance of the bill and answer and pleadings; but under the rules prescribed by the Supreme Court, the decree does not, and generally does not recite the facts on which the decree is founded. Whiting v. The Bank, 13 Pet. 6-13. 582 EQUITY RULES [Rule LXXII This difference is important to note in applying the rule that no bill of review lies for errors of law, except where such errors are apparent on the face of the decree. In America the error must be apparent on the record, which includes the bill, answer, and other pleadings, to- gether with the decree. lb. 14. The bill, answer, and other pleadings, together with the decree, con- stitute the record of the case. lb. Adverse interests as between codefendants may be passed upon and decided, and if the parties have had a hearing and an opportunity of asserting their rights, they are concluded by the decree as far as it affects rights presented to the court, and passed upon by its decree. Corcoran v. Chesapeake, etc.. Canal Co., 94 U. S. 741-744, 24 L. ed. 190. When asked in a subsequent biU to enforce a prior decree obtained by consent, the court has a right to decline to treat such consent decree as res adjudicata. Lawrence Mfg. Co. v. Janesville Mills, 138 U. S. S52- 562, 34 L. ed. 1005. A decree which passes upon questions not at issue, rendered against a party who takes no actual part in the litigation subsequent to filing an answer is void and may be contested collaterally. Hovey v. Elliott, 167 U. S. 409-445, 42 L. ed. 215, citing Reynolds v. Stockton, 140 U. S. 254, 35 L. ed. 464. A decree of foreclosure and sale is not final for an appeal where the amount due upon the debt remains to be determined. Railroad Co. V. Swasey, 23 WaU. 405-410, 23 L. ed. 136. A final decree is one which determines the principal matters in con- troversy. Dean v. Nelson, 7 WaU. 342, 19 L. ed. 94, and cases cited. Injunctional decrees are not absolutely final until the end of the term: until then they may be modified on motion. Railroad v. Mayor, 7 Wall. 575, 19 L. ed. 275. Rule LXXII — Correction of Clerical Mistakes in Orders and Decrees Clerical mistakes in decrees or decretal orders, or errors arising from any accidental slip or omission, may, at any time before the close of the term at which final decree is rendered, be corrected by order of the court or a judge thereof, upon petition, without the form or expense of a rehearing. An amendment of Rule 85 of the Rules adopted March 2, 1842. RuleLXXIII] EQUITY RULES 583 Decisions A decree is usually considered as final after the end of the term at which it is rendered, when there is no special minute to the contrary. Jenkins v. Eldridge, 1 Woodb. &M.61; Fed. Cases, 7,269. Under the early practice decrees were deemed to be enrolled as of the term when rendered. Whiting v. Bank, 13 Pet. 6-13; Dexter v. Arnold, 5 Mason, 303; Fed. Cases, 3,856. Where it is apparent that the decree rendered by another judge should have been as petitioner claims, yet as the error may have been judicial and not clerical, that fact wiU not justify an alteration of the decree after term. Hicklin v. Marco, 64 Fed. R. 609-610. It is within the power of the court to correct clerical error in its own decrees at any time, and it may ascertain the existence of alleged errors by any satisfactory evidence, the judge's docket, his recollection, or other evidence. 76. 609. The court has full power over its decrees to amend, correct, or vacate them during the term at which they are rendered. Doss v. Tyack, 14 How. 297-313, 14 L. ed. 428. The Circuit (District) Court has no power to set aside its decrees on motion after the term at which they are rendered. McMicken v. Perin, 18 How. 507-511, 15 L. ed. 504. Although the decree is not according to the bill, it can only be cor- rected after the term by bill of review. So Held, where a decree directed the sale of land not described in the bill, Robinson v. Rudkins, 28 Fed. R.8. That the Circuit (District) Court retains jurisdiction of the cause for the purpose of enforcing all the provisions of its decree rendered, and passing the accounts of and discharging a receiver, does not warrant it to take jurisdiction of a bill of review for apparent errors brought after the time hmited by statute for taking an appeal. Chamberlain v. Peoria, D. & E. R. Co., 118 Fed. B. 32-34, 55 CCA. 54. Rule LXXIII — Preliminary Injunctions and Temporary Restraining Orders No preliminary injunction shall be granted without notice to the opposite party. Nor shall any temporary restraining order be granted without notice to the opposite party, unless it shall clearly appear from specific facts, shown by affidavit 584 EQUITY RULES [Rule LXXIII or by the verified bill, that immediate and irreparable loss or damage will result to the apphcant before the matter can be heard on notice. In case a temporary restraining order shall be granted without notice, in the contingency specified, the matter shall be made returnable at the eariiest possible time, and in no event later than ten days from the date of the order, and shall take precedence of all matters, except older matters of the same character. When the matter comes up for hearing the party who obtained the temporary restraining order shall proceed with his apphcation for a preliminary injunction, and if he does not do so the court shall dissolve his temporary restraining order. Upon two days' notice to the party obtaining such temporary restraining order, the opposite party may appear and move the dissolu- tion or modification of the order, and in that event the court or judge shall proceed to hear and determine the motion as expeditiously as the ends of justice may require. Every temporary restraining order shall be forthwith filed in the clerk's ofiice. A substitute for Rule 55 of the Rules adopted March 2, 1842 Statutory Piovisions Rev. Siats., sec. 646, U. S. Comp. Stats. 1901, p. 523. . As also Act of Mar. 3, 1875, ch. 137 (18 Stat. L. 471). Re-enacted as sec. 36, Judicial Code. All injunctions had in any suit removed from a State court to the Federal courts shall remain in full force until dissolved or modified by the court into which the suit is removed. Rev. Stats., sec. 718, U. S. Comp. Stats. 1901, p. 580. Re-enacted as sec. 263, Judicial Code. Where notice of motion for an injunction is given and irreparable injury appears imminent if there be delay, the District Court or judge, may grant a temporary restraining order, with or without security, until decision upon a motion for injunction. Sec. 264, Judicial Code. Writs of injunction may be granted by any justice of the Supreme Court in cases where they might be granted by the Supreme Court; and by any judge of a District Court in cases where they might be granted by such court. But no justice of the Supreme Court shall hear or allow any application for an injunction or restraining order in any cause pending in the circuit to which he is allotted, else- where than within such circuit, or at such place outside of the same as the parties may stipulate in writing, except when it cannot be heard by the district judge of the district. In case of the absence from the district of the district judge, or of his disability, any circuit judge of the circuit in which the district is situated may grant an injunction RuleLXXIII] EQUITY RULES 585 or restraiaing order in any case pending in the District Court, where the same might be granted by the district judge. Sec. 265, Judicial Code. The writ of injunction shall not be granted by any court of the United States to stay proceedings in any court of a State, except in cases where such injunction may be authorized by any law relating to proceedings in bankruptcy. Sec. 266, Judicial Code. No interlocutory injunction suspending or restraining the enforcement, operation, or execution of any statute of a State by restraining the action of any officer of such State in the enforce- ment or execution of such statute, shall be issued or granted by any justice of the Supreme Court, or by any District Court of the United States, or by any judge thereof, or by any circuit judge acting as district judge, upon the ground of the unconstitutionality of such statute, unless the application for the same shall be presented to a justice of the Supreme Court of the United States, or to a circuit or district judge, and shall be heard and determined by three judges, of whom at least one shall be a justice of the Supreme Court, or a circuit judge, and the other two may be either circuit or district judges, and unless a majority of said three judges shall concur in granting such applica- tion. Whenever such appUcation as aforesaid is presented to a jus- tice of the Supreme Court, or to a judge, he shall immediately call to his assistance to hear and determine the application two other judges: Provided, however, that one of such three judges shall be a justice of the Supreme Court, or a circuit judge. Said application shall not be, heard or determined before at least five days' notice of the hearing has been given to the governor and to the attorney general of the State, and to such other persons as may be defendants in the suit: Provided, That if of opinion that irreparable loss or damage would result to the complainant unless a temporary restraining order is granted, any justice of the Supreme Court, or any circuit or district judge, may grant such temporary restraining order at any time before such hearing and determination of the application for an interlocutory injunction, but such temporary restraining order shall remain in force Only until the hearing and determination of the application for an interlocutory injunction upon notice as aforesaid. The hearing upon such application for an interlocutory injunction shall be given prec- edence and shall be in every way expedited and be assigned for a hearing at the earliest practicable day after the expiration of the notice herein- before provided for. An appeal may be taken direct to the Supreme Court of the United States from the order granting or denying, after notice and hearing, an interlocutory injunction in such case. Sec. 129, Judicial Code. Where upon a hearing in equity in a District Court, or by a judge thereof in vacation, an injunction shall be granted, continued, refused, or dissolved by an interlocutory order or decree, or an application to dissolve an injunction shall be refused, or an inter- locutory order or decree shall be made appointing a receiver, an appeal may be taken from such interlocutory order or decree granting, con- 586 EQUITY RULES [Rule LXXIII tinuing, refusing, dissolving, or refusing to dissolve, an injunction, or appointing a receiver, to the Circuit Court of Appeals, notwithstanding an appeal in such case might, upon final decree under the statutes regulating the same, be taken directly to the Supreme Court: Provided, That the appeal must be taken within thirty days from the entry of such order or decree, and it shall take precedence in the appellate court; and the proceedings in other respects in the court below shall not be stayed unless otherwise ordered by that court, or the appellate court, or a judge thereof, during the pendency of such appeal: Provided, however, _ That the court below may, in its discretion, require as a condition of the appeal an additional bond. Act Feb. 25, 1885, ch. 149 (23 Stat. L. 321), conferred jurisdiction on the District and Circuit Courts to issue the writ of injimction to prevent illegal inclosures of the public lands. Act Feb. 4, 1887, ch. 104, sec. 16 (24 Stat. L. 384).] An act to regulate commerce as amended by the Act of Mar. 2, 1889, ch. 382, authorizes the issuance of the writ of injunction to restrain violations of the inter- state commerce law. Act Mar. 3, 1881, ch. 138 (21 Stat. L. 503), sec. 7.] Injunction may issue to restrain infringement of a trade-mark. Act Mar. 3, 1899, ch. 428 (30 Stat. L. 1151), sec. 12, as amended by the Act of Feb. 20, 1900 (31 Stat. L. 32).] The Secretary of the Navy may enjoin the erection of obstructions in navigable waters and enforce removal of the same. Decisions A preliminary injunction will not be granted upon the mere statement of a plaintiff's apprehension. Jenny v. Crase, 1 Cranch C. C. 443; Fed. Cases, 7,285. No injunction can be granted unless special and sufficient cause is clearly shown. Perry v. Parker, 1 Woodb. & M. 280; Fed. Cases, 11,010. Injunctions in the Federal courts are special and not as a matter of course. lb. In patent cases if the title of complainant is denied he must show former recoveries or long possession, to warrant the issuance of an in- junction before the disputed questions of title are settled at law. 76. Under the Act of 1793, injunctions were prohibited in United States courts without notice first to the opposing party. Perry v. Parker, 1 Woodb. & M. 280; Fed. Cases, 11,010; New York v. Connecticut, 4 Dallas, 1. The clause of the Act of 1793 prohibiting injunction without notice was repealed by the Act of June 22, 1874, and the act adopting the RuleLXXIII] EQUITY EULES 587 Revised Statutes (sec. 5596, Rev. Stats., U. S. Comp. Stats. 1901, p. 3750); Yuengling v. Johnson, 1 Hughes, 607; Fed. Cases, 18,195. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held, it was not indispensable that a biU for an injunction should contain a prayer for discovery. Lawrence v. Bowman, 1 McAll. 419; Fed. Cases, 8,134. When on motion for injunction there appears such a repugnancy as to the facts as to make it necessary to decide the relative truth of the conflicting statements of the affidavits filed by either party, or the credibility of the witnesses, the injunction should be refused. Cooper v. Mathews, 8 Law Rep. 413; Fed. Cases, 3,200. The complainant is not entitled as a matter of right to file further affidavits in answer to those of defendant's; in case of an entire surprise an opportunity may be given for reply. Day v. Boston Belting Co., 16 Law Rep. 330; Fed. Cases, 3,674, citing Farmer v. Calvert Litho., etc., Co., 1 Flip. 228; Fed. Cases, 4,651. In England the practice is to move for an injunction ex parte and there is no hearing; then the defendants may move to dissolve the injunction and the parties are heard by the court. 76. Affidavits may be read in behalf of both parties upon an application for injunction. Brooks v. Bicknell, 3 McLean, 250; Fed. Cases, 1,944. Affidavits are read to support the injunction on a motion to dissolve it on the coming in of the answer by the well-established practice in England. 76. The denial of plaintiff's title in an answer does not prevent the court from awarding a temporary injunction. Clum v. Brewer, 2 Curt. 506; Fed. Cases, 2,909. Where the right to a temporary injunction depends upon the terms of a written instrument, and there are no controverted facts, it is the duty of the court to interpret the instrument and grant or refuse an injunction accordingly. 76. The practice of allowing complainant to file affidavits in reply to the affidavits of defendant on complainant's motion for an injunction, should not be allowed where it would result in determining a vital question of the cause upon ex parte affidavits. Illingsworth v. Spaulding, J. & Co., 9 Fed. R. 154-155. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held, it was only in the case of the common injunction that the defendant had the right to have the injunction dissolved upon an answer denying the whole equity of the bill. In cases of a special m- 588 EQUITY RULES [Rule LXXIII junction, upon the ground of irreparable mischief, the dissolution of the injunction is not of course upon the coming in of an answer denying the whole equity of the bill; and in such case, upon motion to dissolve such an injunction, the plaintiff may be entitled to read affidavits in contra- diction to the answer; if not to the whole answer, to many points. Poor i>. Carleton, 3 Sum. 70; Fed. Cases, 11,272. Under the rules in force prior to the revision promulgated Novem- ber 4, 1912, Held, if the answer neither admitted nor denied the allega- tions of the bill the allegations of the biU were taken to be true upon a question of dissolution of an injunction. Young v. Grundy, 6 Cr. 51, 3 L. ed. 149. Complainants insisted that an answer filed before the time required had only the force of an affidavit, Held, that the answer filed instanta will be given the weight of an answer on motion to grant or continue an injunction. Brooks v. Bicknell, 3 McLean, 250; Fed. Cases, 1,944. While on the trial, matter of avoidance in an answer responsive to the bill must be proved; on a motion for injunction it is equivalent to the affidavit of the defendant. Tobin v. Walkinshaw, 1 McAll. 26; Fed. Cases, 14,068. The granting or dissolving of an injunction rests in the sound discre- tion of the chancellor and on the justice and equity of each particular case. Tucker v. Carpenter, Hempst. 440; Fed. Cases, 14,217. Even after answer it is in the sound discretion of the court to continue an injunction if justice will be attained by that course. Nelson v. Robinson, Hempst. 464; Fed. Cases, 10,114. Where there is equity on the face of the bill an injunction will not be dissolved on the answer, unless there is positive denial of all the material facts which form that equity; and a denial on information and belief is not sufficient. 76. Where the answer denies all material allegations of the bill and there is no proof, or the proof offered leaves the case in doubt as to the equi- ties, an injunction will be denied. Shoemaker v. National M. Bank, 1 Hughes, 101; Fed. Cases, 12,801. As upon application for a preliminary injunction the court does not settle the rights of the parties the case is heard upon affidavits alone, and neither party has the right of cross-examination. Day v. Boston Belt- ing Co., 16 Law Rep. 329; Fed. Cases, 3,674. At the time of granting an order to show cause against a motion for preliminary injunction under sec. 718, Rev. Stats. (17. °d. the principal and sureties by the court to which such war- rant is returnable, to enforce the final decree so rendered, or upon appeal by the appellate court. Decisions Bail is a substitute for the property as regards all the claims to be made against it by the promoter of the suit. It is security, and not for the amount of the claim, but for the value of the property to the same extent as if it were still in the custody of the court. United States v. Ames, 99 U. S. 35-37, 25 L. ed. 295. The usual practice is to require nonresident parties to supply at least two sureties, and libellants, if resident within the district, one surety, resident therein; but it is not indispensable to the validity of the stipu- lation in any case. The Infanta, Abb. Ad. 327; Fed. Cases, 7,031. Irregularities in the proceedings known to the party concerned must be objected to at the first legal opportunity in court after the time of their occurrence or they wiU be deemed to be waived. 76. Sureties upon the bond for the release of property may not object that the court has not acquired jurisdiction to enter the decree, where the respondent has appeared or service has been made upon him, and respondent has obtained possession of the property by means of the bond. Harriman v. Rockaway Beach P. Co., 8 Fed. B. 94r-96. But see The Berkley, 58 Fed. R. 920, where it was held that where the vessel is seized iindei' an invalid warrant so ths-t she cannot be held, the 616 RULES IN ADMIRALTY [Rule V sureties in a bond for her release are also discharged. The fact that the stipulation is in the words "personally appeared" does Hot in case of seizure under an invalid warrant operate as a general appearance and waive objection to the jurisdiction. Sureties are discharged by amending the libel to join another party, or when the libellant takes notes as collateral security from the owners. The Maggie Jones, 1 Fliv- 635; Fed. Cases, 8,947. The decree in execution upon the bond may be awarded against the surety without a separate suit. Munks v. Jackson, 66 Fed. R. 571-573, 13 C. C. A. 641. Upon a failure to give new or further stipulation as required by a court, it may stay its further proceedings, deny all relief or dismiss the libel and petition. In re Morrison, 147 U. S. 14-35, 37 L. ed. 60. Rule V Bonds or stipulations in admiralty suits may be given Bonds and stipulations; and taken in open court, or at chambers, by whom may be taken, ^j. ^gforg ^ny commissioner of the court who is authorized by the court to take affidavits of bail and depositions in cases pending before the court, or any com- missioner of the United States authorized by law to take bail and affidavits in civil cases. Statutory Provisions Act Aug. 15, 1876, ch. 304. An Act to provide for the appointment of commissioners for taking affidavitife, etc., for the courts of the United States. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, that notaries public of the several States, Territories and the District of Columbia be, and they are hereby authorized to take depositions, and do all other acts in relation to taking testimony to be used in the courts of the United States, take acknowledgments and affidavits, in the same manner and with the same effect as commissioners of the United States Circuit Court may now lawfully take or do. Approved Aug. 15, 1876. Decisions Poor persons may sue in admiralty without security for costs upon making oath that they are unable to give security and the certificate of a reputable attorney that he has investigated the case and believes Rules VI, VII] EULES IN ADMIRALTY glT the party has a good cause of action. Bradford v. Bradford 2 Fli-n 280; Fed. Cases, 1,766. ' *^- Appended to the case is the form of oath, order of the court, and a note by Hammond, J., who delivered the opinion. Rule VI In all suits in personam, where bail is taken, the court may, upon motion, for due cause shown, when ban may be re- reduce the amount of the sum contained newsuretieB^'reqZed. " in the bond or stipulation therefor; and in all cases where a bond or stipulation is taken as bail, or upon dissolving an attachment of property as aforesaid, if either of the sureties shall become insolvent pending the suit, new sureties may be required by the order of the court, to be given, upon mo- tion, and due proof thereof. Decisions Where the sureties become insolvent application should be made to the court for an order requiring new sureties to be furnished. Dis- obedience to such order puts the party in contempt and he may be denied the right to further contest the suit until he complies with the order. The Old Concord, 1 Brown's Adm. 270; Fed. Cases, 10,482. Rule 6 does not provide expressly for suit in rem, but under the authority of Rule 47 the court may require additional security upon motion and cause shown. The City of Hartford, 11 Fed. B. 89. Rule VII In suits in personam, no warrant of arrest, either of the person or property of the defendant, warrant of arrest in , ,, , ^. n ^ personam; when may shall issue tor a sum exceedmg five hun- issue. ' dred dollars, unless by the special order of the court, upon affidavit or other proper proof showing the propriety thereof. Decisions A sworn libel is required for the foundation of any process of attach- ment, but the affidavit which justifies the arrest may be a separate deposition. Martin v. Walker, Abb. Ad. 579; Fed. Cases, 9,170. An action for an assault against the master, brought after an action instituted upon the same cause of action against the two mates of a ves- 618 RULES IN ADMIRALTY [Rules VIII, IX sel not found in the jurisdiction, where it is not shown that the master knew of the purpose of the mates to assault the libellant, or could have prevented it, HM, not a case in which an order of arrest should issue without the security usually required. Cole v. Tollison, 40 Fed. R. 303- 304. Rule VIII In all suits in rem against a ship, her tackle, sails, apparel, Suits in rem, ships, fumiture, boats, or other appurtenances, tafned possession'^of "by' if such tackle, sails, apparel, furniture, ™""" boats, or other appurtenances are in the possession or custody of any third person, the court may, after a due monition to such third person, and a hear- ing of the cause, if any, why the same should not be delivered over, award and decree that the same be delivered into the custody of the marshal or other proper oflBcer, if, upon the hearing, the same is required by law and justice. Rule IX In all cases of seizure, and in other suits and proceedings Cases of seizure, process ^^ ™wi) the process, unless Otherwise '"■ provided for by statute, shall be by a warrant of arrest of the ship, goods, or other thing to be How marshal to execute arrcsted; and the marshal shall thereupon same; whatnotlce to give. ^^^^^^ ^^^ ^^^^ ^^^ gj^jp^ ^^^^^^ ^^ ^^^^^ thing, into his possession for safe custody, and shall cause pubhc notice thereof and of the time assigned for the return of such process and the hearing of the cause, to be given in such newspaper within the district as the District -Court shall order; and if there is no newspaper published therein, then in such other public places in the district as the court shall direct. Decisions The distinguishing feature of a suit in admiralty is that the vessel or thing proceeded against is itself seized and impleaded as the defendant, and is judged and sentenced accordingly. The Moses Taylor, 4 Wall. 411-427, 18 L. ed. 397. The court may determine the question of its jurisdiction although the marshal's return shows a seizure outside of the jurisdiction. The question may be determined upon a plea to the jurisdiction, which Rule IX] RULES IN ADMIRALTY 619 may be joined with an answer to the merits. The Lindrup 70 Fed R 718-719. ■ ■ The service of a regular process is a warning to all parties who heve an interest in the cause to come in and protect their interest. Unless they do so, if due notice were given they are bound by the decree. Commander in Chief, 1 WaU. 43-52, 17 L. ed. 609. The filing of a libel and issuance of an attachment without seizure of the vessel is not notice of the suit, even constructive. The Robert Gaskin, 9 Fed. R. 62-63. Where claimants voluntarily give a stipulation to pay the decree rendered, the court has jurisdiction to proceed in a Ubel in rem against a vessel within the jurisdiction where the libel was filed, although no monition was issued and no seizure of the vessel made. The Frank Vanderkerchen, 87 Fed. R. 763-765. Ordinarily, seizure of the property precedes the appearance of the claimants, but it makes no difference whether claimants voluntarily entered into the stipulation before the actual seizure or waited until the vessel had been taken into actual custody. lb. 765. In the execution of admiralty process in rem the officer should take actual possession and hold it in such manner that his possession may be seen. The Hibernia, 1 Spr. 78; Fed. Cases, 6,455. Jurisdiction of the property is acquired by its seizure, by the marshal under process of the court, and this seizure and the process served by the marshal are, in view of the law, notice to all persons interested of the pendency of proceedings and of their right to intervene and protect their interests. Daly v. Doe, 3 Fed. R. 903-912. The failure to pubUsh notice before the default entered a8 required by the rule does not render the decree invalid. 76. 912. The whole world are parties in an admiralty cause. Every person, therefore, who can assert any title to the property has constructive notice by its seizure and is bound by any decree rendered respecting it. The Mary, 9 Cranch, 126-144, 3 L. ed. 678. Where there are several authorities claimed competent to bind the goods of a party where executed by a proper officer, they should be con- sidered effectually and for all purposes bound by the authority which first actually attaches upon them in point of execution, and under which an execution should first have been executed. Taylor v. Carrol, 20 How. 583-694, 15 L. ed. 1028. Where the Federal and State courts have concurrent jurisdiction in rem the right tp maintain the jurisdiction must attach to that tribunal 620 RULES IN ADMIRALTY [Rule IX which first exereises it, and takes possession of the thing in litigation. The Robert Fulton, 1 Paine, 620; Fed. Cases, 11,890. That a suit in replevin has been instituted in the State court does not supersede the right of a court of admiralty to proceed to enforce a lien in rem. Such suit being a paramount right against all persons whomso- ever. Certain Logs of Mahogany, 2 Sumn. 589; Fed. Cases, 2,559. Where there is a contest between process issued by a State court and process issued by a Federal court as to which made the first seizure, the sheriff should either apply to the State court to be protected, or to the Federal court to order its officer to withdraw. The Circassian, 1 Ben. 128; Fed. Cases, 2,721. Where there is a conflict between the marshals of different districts exercising concurrent jurisdiction, the question of priority is properly raised by petition. 76. ■ Where the sheriff under process from the State court has the custody of the property and the marshal seizes it, although such levy by the marshal does not operate to oust the sheriff, it becomes legal as soon as the sheriff abandons the levy and will take precedence of a collusive appointment thereafter of a receiver by the State court. The Roslyn, 9 Ben. 119; Fed. Cases, 12,068, A court of admiralty will enforce paramount maritime hens by pro- ceeding against a" vessel sold under process in a State court; such sale and delivery to the purchaser does not divest or impair the paramount maritime liens. The Gazelle, 1 Spr. 378; Fed. Cases, 5,289. The thing taken in proceedings in rem remains in the custody of the court until claims before the court are finally satisfied, and if the thing is taken from the officer, its redelivery will be enforced by attachment; whether taken by a party to the cause or not. The Phoebe, 1 Ware, 368, Fed. Cases, 11,066. The court in its discretion may entertain two hbels for the same cause of action, one in personam and one in rem. La Normandie, 58 Fed. R. 427-432, 7 C. C. A. 285. A judgment m personam cannot ordinarily be entered in a suit in rem without an amendment, and the issue of new process or the voluntary appearance of the defendant. The Monte A., 12 Fed. R. 331-337. Motion to dismiss for want of jurisdiction in a libel in rem may be made even after full hearing had upon the merits. The John C. Sweezy, 55 Fed. R. 540-541. RuleX] EtTLES IN ADMIRALTY 621 The filing of a cross-bill in personam and obtaining a stay in the original libel, Held, not to be a waiver of objections on the ground that the lien is not maritime. The Electra, 74 Fed. B. 689-696 21 C C. A. 12. The use of the process of attachment in admiralty has prevailed since the Federal courts were established. Atkins v. Fiber Co 18 Wall 272-304, 21 L. ed. 844. '' Since Congress may prescribe the forms and modes of proceedings in the judicial tribimals it establishes to carry into execution the judicial powers delegated by the Constitution; it may authorize the courts to proceed by attachments against property or by arrest of the person as may be deemed most to promote justice. Steamer St. Lawrence, 1 Black, 522-528, 17 L. ed. 183, Dec. T., 1863. Where the libeUant has acted in good faith under the advice of counsel, a cross-libel for damages caused by the attachment and deten- tion of the vessel in the suit will not be sustained. The Alcalde, 132 Fed. R. 576-579. Where the court is satisfied that a suit in rem for collision was brought in good faith, and that there has been no abuse of judicial process, a cross-libel for damages on account of the detention of the ship, by her seizure under the process of the court issued in the case at the instance of the libellant, will be dismissed. The Admiral CeciUe, 134 Fed. R. 672- 675. In proceedings in rem the allowance of process is the act of the law, so that no damages are allowed for the arrest and detention of the ves- sel, unless where bad faith or deceit is practiced in suing out the writ, or unless the suit is one which may be characterized as a malicious prosecution. Portland Shipping Co. v. The Alex Gibson, 44 Fed. R. 371-374. RtTLE X In all cases where any goods or other things are arrested, if the same are perishable, or are lia- Perishable goods, how ble to deterioration, decay, or injury, by "^y^^"^^- being detained in custody pending the suit, the court may, upon the application of either party, in its discretion, order the same or so much-thereof to be sold as shall be perishable or liable to depreciation, decay, or injury; and the proceeds, or so much thereof as shall be a full security to satisfy the 622 RtJLES IN ADMiRALTTf [Rule Xl decree, to be brought into court to abide the event of the suit; or the court may, upon the application of the claimant, Or may be delivered to order a delivery thereof to him, upon a claimant on his giving . , j i i_ j j "a. stipulation. duc appraisement, to be had under its direction, either upon the claimant's depositing in court so much money as the court shall order, or upon his giving a stipulation, with sureties, in such sum as the court shall direct, to abide by and pay the money awarded by the final decree rendered by the court, or the appellate court, if any appeal intervenes, as the one or the other course shall be ordered by the court. Decisions If the cargo is liable to deteriorftte or perish, or the ship to be injured by the delay incident to salvage proceedings, the proper course is to apply to the court for the sale thereof. It is not a matter of right for either party to have the delivery on bail in such cases. The Ship Na- thaniel Hooper, 3 Sumn. 542; Fed. Cases, 10,032. Under Rule 10 it is not sufficient ground to refuse the sale of a ship which is deteriorating in the hands of the marshal, because an appeal is pending as to the propriety of the court's entertaining jurisdiction while the ship was in the hands of a- receiver appointed by a State court. The Wilamett Valley, 63 Fed. R. 130-132, 11 C. C. A. 11. The property does not follow the appeal into the appellate court, but remains in the custody of the officer of the court below, which has the power to order it sold, notwithstanding the appeal, if liable to deprecia- tion. Jennings v. Carson, 4 Crunch, 2-26, 2 L. ed. 531. After an appeal the trial court still retains power to care for the goods seized, and may order a, sale of such goods as are likely to perish. Jones V. Walker, 2 Hayw. N. C. 291; Fed. Cases, 7,506. The court will protect the title of the purchaser to the property or- dered to be sold as perishable, against both claimant and hbeUant. 7b. Rule XI In like manner, where any ship shall be arrested, the same Ship when may be may, upou the application of the claim- deUvered to claimant. ^^^^ ^^ delivered tO him UpOU a dUB appraisement, to be had under the direction of the court, upon the claimant's depositing in court so much money as Rule XI] RULES IN ADMIRALTY 623 the court shall order, or upon his giving a stipulation, with sureties, as aforesaid; and if the claimant shall decline any such application, then the court may, in its discretion, upon the application of either party, upon due Or when win be sold, cause shown, order a sale of such ship, and the proceeds thereof to be brought into court or otherwise disposed of, as it may deem most for the benefit of all concerned. Decisions The power to release on bail does not depend on any rule, but is an inherent power of the court. Place v. City of Norwich, 1 Ben. 89; Fed. Cases, 11,202. Filing a stipulation to obtain the release of a vessel is not a waiver of the question of her hability. The Fidehty, 16 Blatchf. 569; Fed. Cases, 4,758. If it shall appear on trial even after the merits are determined in favor of the claimants, that in reality they have no title to the property, the court will retain the property in its own custody until the true owner can interpose a claim. United States v. Four Hundred and Twenty-four Casks of Wine, 1 Pet. 547-550, 7 L. ed. 257. Where a stranger to the suit, claiming to be the owner, gives a bond conditioned for the restoration of the property and to perform any other judgment which the court may render, and pay costs and damages, he makes himself a party to the suit as if process had been served on him, and is bound by a default, under the terms of his bond. Briggs v. Tay- lor, 84 Fed. R. 681-683, 28 C. C. A. 517-518. The filing of a stipulation to release a vessel from an attachment, is not a waiver of any ground of defense to the suit, and respondent sued in personam, whose vessel is attached because personal service cannot be made in the district, may seasonably plead that the court has no jurisdiction of the cause. Manchester v. Hotchkiss, 10 Am. L. B. 379; Fed. Cases, 9,004. Where several libels are filed amounting to more than the appraised value of the vessel, she may be discharged on claimants giving a stipula- tion in the full value of the vessel. The Antelope, 1 Ben. 521; Fed. Cases, 481. Where several libels are filed against a vessel in the aggregate amount exceeding her value, she may be discharged upon a stipulation in the 624 EtTLES IN ADMIRALTY [Rule XI amount of her value without including her freight, there being no pro- ceedings against the freight. The Vivid, 3 Biss. 397; Fed. Cases, 16,977. The stipulator cannot at his option be discharged from his undertak- ing on restoring the property to the custody of the court, nor can it be done by order of the court merely at the instance of the stipulator, and for his relief. Livingston v. The Jewess, 1 Ben. 19; Fed. Cases, 8,412. Where another element of equity has been mingled with the case by the re-arrest of the property so that the claimant was deprived by an act of law of the benefit of the discharge, the stipulations may be va- cated by the order of the court. lb. Under Rule 11 and sec. 941, Bev.Stats. (U. S. Comp. Stats. 1901, p. 692), possession may be retained by giving bond where the libel is to determine the right of possession of the vessel. The Poconoket, 61 Fed. R. 106-109. Where one of the owners has given a stipulation to refund the value of the ship as appraised, with damages, interest, and costs, he is not at liberty thereafter to insist that the ship is worth less than the appraised value, or that he has discharged other liens for which the owners were personally liable, to that extent diminishing its value. The Virgin, 8 Pet. 538-553, 8 L. ed. 1036. The surety having paid the money stipulated may at once claim to be subrogated to the rights of the original libellant, but he is not entitled to be paid out of the proceeds of the sale of the ship in preference to the ejcisting liens. Carrol v. Leathers, 1 Newb. 432; Fed. Cases, 2,455. The surety is regarded only in the light of an ordinary creditor of his principal, upon whose personal credit he relied when he bound himself for the payment of the bond. It is his own fault if he has failed to exact from his principal a separate stipulation to indemnify him against all loss. lb. Although the rules are silent with regard to this form of stipulation, the court in general admiralty practice has the power upon the applica- tion of the surety to direct it to be given. lb. The surety has the right to proceed against the vessel seized and sold, as against any other property belonging to his principal, but it is the right of any ordinary creditor and not a privileged one, as holding a lien. lb. A surety by paying the decree does not become subrogated to the rights of the libellant so as to acquire a lien upon the vessel. If the surety desires protection he should exact security from his principal, as his legal redress is only that of one who has incurred obligations from having paid money for which he voluntarily and without consideration has undertaken to pay. The Robertson, 8 Biss. 180; Fed. Cases, 1,923. Rule XI] RULES IN ADMIRALTY 625 The court may order a chartered ship to be delivered to her owners if the charterers refuse to claim her. The Prometheus, 1 LoweU, 491- Fed. Cases, 11,442. ' A vessel discharged upon stipulation returns to her owner forever discharged from the lien, the foundation of the proceedings against her. The court has no power to order her re-arrest; but where the sureties become insolvent, may require new sureties to be furnished. The Old Concord, 1 Brown's Adm. 270; Fed. Cases, 10,482. The rule allowing the re-arrest of a vessel discharged on stipulation in the case of fraud or an improvident release, only allows such re-arrest before judgment, because the cause of action after judgment has passed into res adjudicata, and the court is then without power in the cause. The Hattie Bell, 65 Fed. B. 119-120. If a redelivery of a vessel is ordered it must be subject to all existing and subsequent accruing liens, and also to the rights of any bona fide purchaser, if a sale has in the meantime taken place. The Union, 4 Blatchf. 90; Fed. Cases, 14,3.46. In cases of fraud, or the improvident discharge of a vessel, if season- able application be made, she may be ordered back into the custody of the marshal. lb. The absence from the rules prescribed by the Supreme Court of any provision for the case of insolvent stipulators, is no reason why the court may not require the claimant to furnish new stipulators when the originals became insolvent. The Virgo, 13 Blatchf. 255; Fed. Cases, 16,976. The death of one stipulator does not defeat the right of the libellant to execution against the survivor, which may be had without exhaust- ing the remedy of the libellant against the claimant, where the decree adjudged the stipulants to pay into the court the amount of their stipulation. The C. F. Ackerman, 14 Blatchf. 360; Fed. Cases, 2,564. The final decree where the res has been surrendered may be entered against both principals and sureties at the time of its rendition, upon a stipulation under sec. 941, Rev. Stats. (U. S. Comp. Stats. 1901, p. 692). Ex parte Warden, 108 U. S. 153-156, 27 L. ed. 685. It is no doubt within the power of the court to postpone a decree against the surety until after the time for appeal by the principal has expired and then to proceed only on notice, but it is not imperative. lb. The vessel should not be released during appeal in a cause of damage, nor will the court order the libellants to give bond to pay such damages 40 626 RULES IN ADMIRALTY [Rule XII as may be sustained by the claimants by reason of her detention during the appeal in case the libel be dismissed in the appellate court. The Adolph, 5 Fed. R. 114-115. Rule 11 was designed to give to the owners of vessels sued for dam- ages, all practical relief against the hardships of exercising in good faith the right of arrest. 7b. 116. Where two part owners appear by different proctors and one of the claimants signs the stipulation, the other who gave no stipulation will not be held liable by the decree. The Zodiac, 5 Fed. B. 220. Eule 11 is designed for the purpose of securing the payment of pe- cuniary demands. It is not imperative and should not be applied in those cases where the object of the suit is not the enforcement of money, nor to secure any payment of damages, but to take possession of the vessel herself, to prevent her violation of neutrality laws. The Mary N. Hogan, 17 Fed. R. 813-814. Where the complaint is made under sec. 5j283, Rev. Stats., the vessel should not be released on bond. lb. 815. A vessel may be sold before the final decree upon motion of claimant where the libeUant does not oppose the application, the proceeds to be placed in the registry of the court and stand in the place of the res. The Nevada, 85 Fed. R. 681. In admiralty there is no hard and fast rule to shut out proofs of mis- take in valuation. Where a stipulation is voluntarily entered into without an appraisal as provided for by Rule 11, and where no person will suffer injury, admiralty will apply equitable principles. to enable one who has by mistake furnished a stipulation, excessive, to correct the mistake. The Iris, 100 Fed. fl. 104-114, 40 C. C. A. 301. . Rule XII In all suits by material men for supplies or repairs, or Suits by material men, Other necessarfes, the Ubellant may pro- against whom and what. ^^^^ ^^^^^^ ^^^ ^j^jp ^^^ ^^^^^^^^ -^ rem, or against the master or owner alone, in personam. Decisions The general principles governing liens on domestic vessels stated to be: (1) By common law material men furnishing repairs to a domestic ship have no maritime lien upon the ship itself: (2) as to repairs or necessaries in the port or State to which the ship belongs the local law governs, and no lien is imphed unless by that law; (3) where the local RuleXII] RULES IN ADMIRALTY 627 law gives a lien, the provisions of such law must be strictly followed, or no lienis acquired. The Sue, 137 Fed. R. 133-135. The lien or supplies may be enforced against the person of the master, the vessel itself, or the owners thereof, whether the supplies be furnished with their knowledge or not; and this appUes to foreign vessels in a neutral port. North v. The Eagle, Bee, 78; Fed. Cases, 10,309. Where a State statute gives a lien on a vessel for repairs and suppUes furnished in her home port, the same presumption in favor of the mas- ter's authority to contract therefor on her credit arises as exists under the maritime law where repairs are furnished in a foreign port. The Templar, 59 Fed. B. 203. Where a third party claims a lien prior and superior to that of the libellant under the provisions of the State statute, the admiralty court has no power in a proceeding in rem to decide it, and adjust the priorities in dispute. The Steamer St. Laurence, 1 Black, 622-531, 17 L. ed. 184, Dec. T., 1861. A proceeding in rem upon the ground that the local law gives a lien where none is given by the maritime code, is inapplicable to our mixed form of government. lb. A State statute giving a lien is enforced in admiralty not as a right which the court is bound to enforce, but as a discretionary power, where no controversy beyond the limits of admiralty jurisdiction is involved. lb. 530. A court of admiralty has no jurisdiction of charges not of admiralty nor of a maritime nature, although a lien may be given therefor by the State statute. Boon v. The Hornet, Crabbe, 426; Fed. Cases, 1,640. The lien given by a State law may be enforced in rem in admiralty, but it must be such a suit as the admiralty can entertain. 76. A maritime lien will not be enforced against bona fide purchasers or incumbrances, without notice, after failure to assert it within a reason- able time. The Bristol, 11 Fed. B. 156-162. See cases cited on p. 162, where the lien has been held to be lost by delay. A lien not enforced until more than two years after the supplies were furnished, was dismissed as against bona fide purchasers. The Utility, Bl. & H. 218; Fed. Cases, 16,806. Admiralty has jurisdiction to enforce a lien for repairs made by ship carpenters upon a domestic vessel, although no such lien exists by the State law. In re Kirkland, 12 Am. L. B. 300; Fed. Cases, 7,842. 628 RULES IN ADMIRiiLTY [Rule XII The local laws only furnish rules to ascertain the rights of parties, and thus assist in the administration of the prpper remedy, where jurisdiction is vested in admiralty by the laws of the United States. The Steamboat Orleans v. Phcebus, 11 Pet. 175-184, 9 L. ed. 677. "Necessaries," as used in Rule 12, mean those things which pertain to the navigation of a vessel, and are incidental thereto, i. e., those things which directly aid in keeping her in motion for the purpose of receiving, carrying, and dehvering cargoes. Hubbard v. Roach, 2 Fed. R. 393-394. The charge for supplies furnished by material men to foreign ships in our ports or to our ships in foreign ports is enforceable in admiralty. The Nestor, 1 Sumn. 73; Fed. Cases, 10,126. The ports of other States are foreign ports. lb. The fact that the master and owners are personally liable for the supplies does not destroy the lien. lb. Giving credit for a fixed time does not extinguish the lien for supplies, but no lien can be maintained until the term of credit has expired. The John Wallace, Jr., 1 Spr. 178; Fed. Coses,- 7,432. The maritime lien is waived by any act inconsistent with the intention to hold such hen, such as taking negotiable notes of the owner. The Chusan, 1 Spr. 39; Fed. Cases, 2,716. Entries in a ledger, the daybook entries not appearing, charging owners rather than the vessel, Held, not to displace the, hen, as the en- tries in books are always explainable, and the truth of the transaction can be shown independent of them. The Patapsco, 13 Wall. 329-334. Where the supplies are furnished in a foreign port, the presumption of law is that the credit is given to the vessel. lb. 334. A note taken for the amount of supplies furnished for a vessel will not waive the maritime hen on the vessel unless so understood at the time. The note, however, must be returned or surrendered at the hear- ing. The Eclipse, 3 Biss. 99; Fed. Cases, 4,268. A charterer to whom is given the possession and management of a vessel becomes the owner pro hac vice, and his contracts for supplies bind the vessel, though the general owner appoints the master and crew. The India, 16 Fed. B. 262-263. If supplies are furnished a foreign vessel in a foreign port where by law such furnishing creates a lien on the ship, a court of admiralty in the United States will administer the foreign law as it would be apphed RuleXIl] ifttJLES IN ADMIRALTY 629 in the ship's home port, though such law differs from the American law. The Maud Carter, 29 Fed. B. 156-167. Under Rule 12 all ships, domestic or foreign, are hable for repairs, supplies, or other necessaries furnished at the expressed or implied request of the owner or master, in home ports as well as in foreign ports. The Augusta, 5 Am. L. Term Rep. 495; Fed. Cases, 647. The anployee of a contractor employed to repair a vessel has a lien thereon, unless the labor was performed with the notice that he must look to the contractor for payment. lb. Rule 12 as altered, places contracts for repairs and supplies for all ships, whether foreign or domestic, on an equality as to proceedings in admiralty. The Selt, 3 Biss. 344; Fed. Cases, 12,649. Held, that the repairs made with the knowledge of the mortgagee create a lien which should be satisfied not according to priority of date, but upon equitable principles. lb. Admiralty jurisdiction does not authorize the courts to take cogni- zance of questions of property between the mortgagee and the owners of a vessel. Bogart v. Steamboat John Jay, 17 How. 399-402, 15 L. ed. 95. The mortgagee has a right in admiralty to so much of the funds as is not required to pay prior liens. The Island City, 1 Lowell, 375; Fed. Cases, 7,109. Liens created by the statute of a State for repairs or supplies furnished a vessel in her home port have precedence over a mortgage recorded under sec. 4,192, Rev. Stats. (U. S. Camp. Stats. 1901, p. 2,837), upon the principle that such suppUes are furnished on the credit of a ship to preserve her existence for the benefit of all having any interest in her. The J. E. Rumbell, 148 U. S. 1-19, 37 L. ed. 345. For necessary repairs or supplies furnished in a foreign port, a lien is given by the general maritime law. lb. For repairs or supplies in the home port, no lien exists under the general law independently of local statutes. lb. 12. Whenever the statute of a State gives a Uen for repairs or supplies in her home port to be enforced in rem, such lien is in the nature of a maritime lien, and may be enforced in admiralty. lb. Such liens are within the exclusive jurisdiction of the courts of the United States sitting in admiralty. lb. Note. — This case reviews the decisions in the several circuits upon questions of priority of liens for supplies or repairs over mortgage liens. State legislatures have no authority to create a maritime lien, nor can they confer jurisdiction on the State courts to enforce such Uen by 636 RULES IN ADMIBALTY [Rule XII a suit or proceeding in rem as practiced in the admiralty courts. Ed- wards V. EUiot, 21 Wall. 552-556, 22 L. ed. ^87. A maritime lien does not arise on a contract to build a ship or furnish material for that purpose, but State laws may create such hens and may enact reasonable rules and regulations for their enforcement not inconsistent with the exclusive jurisdiction of admiralty courts. 76. Liens granted by the State laws in favor of material men for neces- saries furnished to a vessel in her home port in the same State can only be enforced by proceedings in rem in the admiralty courts. The Lotta- wanna, 21 Wall. 558-580, 22 L. ed. 664. All persons who are employed to repair a vessel or do work upon her are material men within the meaning of Rule 12. City of Salem, 10 Fed. R. 843-844. The admiralty possesses a general jurisdiction in cases of suits by material men in personam and in rem, but where the proceeding is in rem to enforce a specific lien, the party must establish the existence of such lien. The General Smith, 4 Wheat. 438-443, 4 L. ed. 609. Where a lien exists by maritime law of foreign jurisdiction, our ad- miralty has jurisdiction to enforce it here, even though all parties are foreigners. The Maggie Hammond, 9 Wall. 435-451, 19 L. ed. 772. In the enforcement of a lien for supplies or repairs to a domestic vessel, the admiralty jurisdiction depends upon the local law of the State where such repairs are made, but questions of lien upon a foreign vessel are governed by the general maritime law. The Chusan, 2 Story, 455; Fed. Cases, 2,717. By the general maritime law material men have a threefold remedy for supplies and materials furnished to a foreign ship: first, against the vessel; second, against the owner, and third, against the master; and none of the remedies is displaced except upon proof that exclusive credit was given to one of the parties or to the vessel. lb. Under Rule 12 every case of contract for supplies, repairs, etc., for a vessel, domestic as well as foreign, may be enforced by proceedings in rem against the vessel or in personam against the owner. The Steamer Circassian, 11 Blatchf. 472; Fed. Cases, 2,726. The person who advances money on the credit of a foreign ship iFor the purpose of repairing her or furnishing her with necessary supplies, and which is used for that purpose, has a lien on the ship for such ad- vance. The J. F. Spenser, 6 Ben. 151 ; Fed. Cases, 7,316. Freight money received by a consignee is deemed to be applied to Rule XIII] flULES IN ADMIEALTY 631 the discharge of liens on the ship in the absence of an express application by the shipowner. 76. An action in rem is no bar to a subsequent suit in -personam for the same claim, unless the defendants executed a stipulation for the amount of the claim. Atlantic Mutual Ins. Co. v. Alexandre, 16 Fed. R. 279-281. A lien for wharfage upon a domestic vessel exists and is enforceable in admiralty. The Kate Tremaine, 5 Ben. 60; Fed. Cases, 7,622. The maritime law implies a lien on the ship for every lawful contract of the master made for the benefit of the ship. 76. Supplies furnished in one State to a vessel belonging in another are supplies for a foreign ship, the different States in the United States for this purpose being held foreign to each other. The Chusan, 2 Story, 455; Fed. Cases, 2,717. Contracts to furnish labor or materials for the repair of a vessel, whether made on the credit of the vessel or the personal credit of the owner or master, are maritime liens within the admiralty jurisdiction. The Iris, 100 Fed. R. 104^110, 40 CCA. 301. It is not essential to a lien under a State statute which gives the lien to the one furnishing the labor or material for the repair of a vessel under a contract with the owner, that the repairs should be made with the understanding that the credit is given to the vessel. 76. 112. Where repairs have been furnished to a vessel, the burden is on the one claiming that the lien which arises by provision of law was waived, as by contract. The L. X. B., 93 Fed. R. 233-239. The mere giving of notes in payment of repairs to a vessel does not in itself create a waiver of the maritime lien therefor, even where the notes contain a provision rendering them an equitable chattel mortgage. 76. The notes not being paid, they may be returned and the lien enforced. 76. 238. Rule XIII In all suits for mariners' wages, the libellant may proceed against the ship, freight, and master, suUs for wages, against or against the ship and freight, or against "^ °™ »" ^ the owner, or the master alone in personam. Decisions Unless restricted by a treaty the courts of the United States may assume jurisdiction of a lien for wages by a foreign seaman against a foreign vessel. The Amalia, 3 Fed. B. 652-653. 632 BULBS IN ADMIRALTY [Rule XIII A vessel under charter is liable for the wages of seamen hired by the charterer, although the owner may not be personally Uable therefor, The Samuel Ober, 4 Fed. R. 621-622. The seamen's wages are nailed to the last plank of tJie strip, bo also to the last fragment of the freight, and take precedence of bottomry bonds and all other claims. Pitman v. Hooper, 3 Sumn. 60; Fed. Cases, 11,185. The right of the seaman to his wages is not affected by any private contract with regard to freight between the owner arid the shipper. lb. A lien for seamen's wages attaches to the ship and freight into whoso- ever hands they may come and takes priority over all others. Brown V. h\i]l,2Sumn. 443; Fed. Cases, 2,018. Seamen have a paramount lien upon the freight earned by the ship, which may be enforced in admiralty by attachment of the freight money wherever found. The Sailor Prince, 1 Ben. 234; Fed. Cases, 12,218. Seamen have threefold security for their wages, the vessel, the owner, and the master. Bronde v. Haven, Gilp. 592; Fed. Cases, 1,924. Portions of a wrecked vessel saved through the efforts of seamen are subject to a hen on the proceeds for their wages. Bracket v. The Hercules, Gilp. 184; Fed. Cases, 1,762. If they abandon the wreck thfe contract between them and the owners is dissolved and their privilege against the ship and claim for wages is lost. Lewis V. The Elizabeth and Jane, 1 Ware, 33; Fed. Cases, 8,321. The poUcy of the law is to connect the right of wages with the safety of the ship. lb. All hands employed upon a vessel except the master are entitled to a lien if their services are in furtherance of the main object of the voyage. So iishwrnen employed in catching and preserving fish may proceed against the vessel for their wages, notwithstanding that they take no part in its navigation. The Minna, 11 Fed. R. 759-760. The master of a vessel has no hen thereon for his wages. Covert v. British Brig Wexford, 3 Fed. R. 577-579. The master may maintain a suit in personam for wages or for com- pensation in the nature of wages. Hammond v. Essex Fire Marine Ins. Co., 4 Mason, 195; Fed. Cases, 6,001. Rule XIII] RULES IN ADMIRALTY 633 A seaman does ncrt lose his lien on the vessel for wages by taking an order on -the owner or charterer for a balance due at the close of the voy- age. The Eastern Star, 1 Ware, 184; Fed. Cases, 4,254. The lien can only be lost by the extinguishment of the debt by pay- ment, or by that which the law regards as equivalent to payment. 76. The owner of a vessel, although his name is not stated in the ship's articles, is liable for the wages of the seamen. Bronde v. Haven, Oilp. 692; Fed. Cases, 1,924. Under Rule 13 a vessel and her owner cannot be joined in the same libel for mariners' wages. The Ethel, 66 Fed. B. 340-342, 13 CCA. 504. A claim for wages and a claim for money advanced for the use of the ship may be united in one action, and such claim may be sued in a joint libel with a person claiming wages only. The Merchant, 1 Abb. Ad. 1; Fed. Cases, 9,434. Rule 13 prohibits joining a suit for wages against the owner personally with one against the vessel. lb. In no case, under Rules 12-20, can the ship and owner be joined in the same libel. The Corsair, 145 U. S. 335-342, 36 L. ed. 727. Seamen's wages have preference over material men's claims. The Steamboat America, 16 Law Reps. N. S. 264; Fed. Cases, 288. A lien for wages is not discharged by the sale of the vessel under execution. Foster v. The Pilot, Newb. Ad. 215; Fed. Cases, 4,980. Security for costs is not required in suits for seamen's wages. The Shelbourne, 30 Fed. R. 510-511. Under sees. 4,546 and 4,547, Rev. Stais. (U. S. Camp. Stats. 1901, p. 3,087), suits to recover seamen's wages are cumulative and do not interfere with the right to recover by ordinary admiralty proceedings against the vessel. The Schooner Edwin Post, 6 Fed. R. 206-208. A seaman who ships for the voyage has a lien for wages although the vessel does not make the contemplated voyage. The Island City, 1 Lowell, 375; Fed. Cases, 7,109. A seaman who ships for a certain time but who is discharged by the master may sue for his wages at once, though the stipulated term of service has not expired. The Cadmus, 1 Blatchf. & H. 139; Fed. Cases, 2,280. 034 RULES IN ADMIRALTY [Rule XIII The Act of Congress, sec. 4,546, Bev. Stats. (17. S. Comp. Stats. 1901, p. 3,087), has reference only to actions in rem and not to actions in personam. lb. A seaman may sue in personam for his wages as soon as the period of his service is completed. Freeman v. Baker, 1 Bl. & H. 372; Fed. Cases, 5,084. A libel for wages is not defeated by an attachment of the same wages in a common-law court. Bourne v. Ross, 17 Fed. R. 703. Under Rev. Stats., sec. 4,546 (U. S. Comp. Stats. 1901, p. 3,087), no proceedings can be had against the vessel as a general rule until ten days after the right to wages has accrued, but proceedings may be had within the ten days, first, if a dispute has arisen; second, if the vessel has departed from the port of her discharge; third, if she is about to proceed to sea. The William Jarvis, 1 Spr. 485; Fed. Cases, 17,697. In the last two cases the statute does not apply and the right to process is the same as if it had never been passed, lb. It is optional for the seamen either to proceed by summons to the master or to make direct application for admiralty process. lb. Where a commissioner, or justice of the peace, grants a certificate to show cause to recover wages, the judge may stay such proceedings or act on the petition de novo. The Eagle, 1 Olc. 232; Fed. Cases, 4,233. The statute, sec. 4,546, Rev. Slats. (U. S. Comp. Stats. 1901, p. 3,087), only prohibits the issuing of process against the vessel within ten days, not the filing of the libel. Francis v. Basset, 1 Spr. 16; Fed. Cases, 5,037. A libel for seaman's wages will not be dismissed because prematurely brought, if substantial justice can be done under it. The L. B. Snow, 15 Fed. R. 282-284. Special appliances on board a ship necessary for the proper conduct of its business are part of the ship's furniture and liable for seaman's wages and supplies, although they are owned by a third party. The Edwin Post, 11 Fed. R. 602-606. The services of a ship's watchman rendered in the home port do not create a maritime lien. The Brig E. A. Barnard, 2 Fed. R. 712-720. The services of a stevedore in loading a vessel do not create a mari- time lien. lb. 715. Although the hbellant describes himself as master if the facts show that he was a seaman, he may maintain a Ubel for wages. The Imogen M. Terry, 19 Fed. R. 463. RuleXlV] RtriiES IN ADMI5RALTV 635 The lien of a mariner is personal and cannot be assigned so as to enable the assignee to enforce the lien in admiralty. The Gate City, 5 Biss. 200; Fed. Cases, 5,267. Where those who claim to be seamen give credit personally to a third person, not the master or agent of the owners, but a charter party, the rule that aU persons employed on a vessel for the purpose of the voyage have by law the legal rights of mariners should not be extended by impUcation or construction for their benefit. The Sarah E. Kenedy, 29 Fed. R. 264r-268. The law of the ship's home is applied by comity to regulate the mutual relations of the ship, her owner, master, and crew, as among themselves, their liens for wages and modes of discipline. The Brantford City, 29 Fed. R. 373-384. Liens for reparation for wrongs done are superior to any prior liens for wages, money borrowed, pilotage, etc. Norwich Company v. Wright, 13 WaU. 104r-122, 20 L. ed. 585. A claim for an assault and battery by an ofiicer of a ship cannot be joined in a libel in rem on a claim for wages. The Guiding Star, 1 Fed. R. 347-359. Rule XIV In all suits for pilotage the libellant may proceed against the ship and master, or against the ship, suUb for pilotage, against or against the owner alone or the master whom and what, alone in personam. Decisions Suits for pilotage on waters as far as the tides ebb and flow are within the admiralty jurisdiction. Hobart v. Drogan, 10 Pet. 108-120, 9 L. ed. 363. Admiralty has jurisdiction as well in personam as in rem for pilotage dues performed on, from, or to the sea. The Anne, 1 Mason, 508; Fed. Cases, 412. * Contracts for pilotage made by a duly authorized person in the em- ploy of the owner are a lien on the ship. lb. A sum given by State statute as half pilotage to a pilot who first tenders his services, which are refused, is not a penalty, but is compensa- tion under implied contract and may be enforced in admiralty. Ex parte McNeil, 13 Wall. 236-242, 20 L. ed. 624. It is improper to join the ship and owner in one libel for pilotage and if seasonably objected to is a fatal objection. Dean v. Bates, 2 Woodb. & M. 87; Fed. Cases, 3,704. 636 IlTJLEg IN ADMIEALTY [Rule XV Rule XV In all suits for damage by collision, the libellant may Suits for eoiiimon, against proccsd against the sMp and master, or whom and what. against the ship alone, or against the master or the owner alone in personam. Decisions The admiralty has jurisdiction in cases of tort and collison as well in our rivers where the tide ebbs and flows as on the high seas. Waring V. Clark, S How. 441-464, 12 L. ed. 226. The jurisdiction of the admiralty courts of the United States extends to collisions between foreign vessels happening on the high seas. The Belgenland, 9 Fed. R. 576. A seaman permanently injured in the performance of his duty on shipboard, in consequence of the negligence of the master, may main- tain a libel for the injury against the ship to recover damages. The A. Heaton, 43 Fed. R. 692-594. It is the settled law of this country that a libel in admiralty may be maintained against the ship for any personal injury for which the owners are Uable under the general law. 7b. Admiralty has jurisdiction of a libel by a father to recover compensa- tion for the death of a son killed in a collision. The Garland, 5 Fed. B. 924-926. Where a State statute gives the administrator the right to recover for death caused by the wrongful act, neglect, or default of another, if the tort occurs upon navigable waters a libel in rem lies therefor. 76. 927. Unless a hen is given by the local law for damages incurred by loss of life, where by the local law a right of action survives to the adminis- trator or relatives of the deceased, there exists no lien which may be enforced by proceedings in rem in a court of admiralty. The Corsair, 145 V. S. 335-347, 36 L. ed. 727. If the local law delegates a right of action, the District Court may administer the law by proceedings in personam. lb. 347. Courts of admiralty of the United States have not exclusive juris- diction of suits in personam growing out of collisions on navigable waters; sec. 563, Rev. Stats. {U. S. Comp. Stats. 1901, p. 455), saves to suitors the right of a common-law remedy where that law is competent to give it. Schoolmaker v. Gilmore, 102 U. S. 118-119, 26 L. ed. 96. Rule XV] RULES IN ADMIRALTY 637 In a libel in rem if the case provted show a elear right fpr recovery against the person, the libellant will be permitted after the decree to amend the libel to introduce proper allegations in personam, and pro- ceed thereon, where no surprise or advantage is taken against the de- fendant by means of such changes. Steamship Zodiac, 5 Fed. B. 220- 223. An amendment cannot be allowed to make the suit one in rem, and one in ■personam against the owner, if the suit is for damages under Rule 15. /6.223. A libel in rem against the vessel and in personam against the master may be joined under Rule 15. Newell v. Norton & Ship, 3 Wall. 257- 266, 18 L. ed. 271. As printed in the text it reads " vessel and owner"; the word "owner" is evidently a misprint for "master." The joinder in the same libel of a proceeding in rem against the ship and in personam against the owner in an action for damages by collision is not admissible under Rule 15. This rule provides that the iwocefiding may be, first, against the ship and master; second, against the ship; third, against the owner alone; fourth, against the master alone. Ward V. Ogdensburg, 5 McLean, 622; Fed. Cases, 17,158. Proceedings may be had in rem or in personam successively in each way until fuU satisfaction is had. lb. Rule 15 should not be extended to restrict the right conferred of joining other parties allowed by Rule 59. Joice v. Canal Boats, 32 Fed. B. 553-554. The mortgagee of a vessel injured or destroyed by a collision may be joined in a libel for damages resulting from the coUision. The Grand Republic, 10 Fed. B. 398-399. Where the collision arises from the negligence of the master, the ship is primarily, although not exclusively, liable. Hale v. Wash. Ins. Co., 2 Story, 176; Fed. Cases, 5,916. In a collision between a steamer and a sailing vessel the presumption is that the steamer is in fault. Farr v. The Steamship Farnley, 1 Fed. B. 631-633. Whenever one vessel does damage to another within the admiralty Jurisdiction, the offending vessel becomes hypothecated to the vessel and cargo sustaining the injury, to the extent of the damage occasioned, and the owner of the injured vessel has a maritime lien to the extent of the injury sustained, of equal rank with those of material men or lenders on bottomry. The America, 16 Law. Bep. 264; Fed. Cases, 288. 63S RULES IN ADMIRALTt [Rule XVI Suit may be brought by the underwriters for the loss of a vessel by collision before the insurance money is actually paid, if the owner in good faith intends to hold the insurer liable. The Manistee, 7 Biss. 35; Fed. Cases, 9,028. In a colUsion case, the damages may include expenses of towing the injured vessel to a place of safety, costs of a survey, demurrage, and interest on various items of damage recoverable, The Bulgaria, 83 Fed. R. 312-314. Where a collision takes place in a foreign port the rights of the parties depend upon the foreign statutes there in force, and if doubts exist as to the true construction of such statutes, the court will adopt that which is sanctioned by the courts of the place where the collision oc- curred. Smith V. Condry, 1 Hmu. 28-33, 11 L. ed. 35. Rule XVI In all suits for an assault or beating on the high seas, or Suits for aasauit, against elsewhere within the admiralty and ^^°^- maritime jurisdiction, the suit shall be in personam only. Decisions Rule 16 precludes a seaman from maintaining a suit in rem to recover damages for alleged assaults and injuries inflicted by the captain. The Lyman D. Foster, 85 Fed. B. 987-988. -A seaman is entitled to damages against the master for assault (1) where personal violence is inflicted not excessive, but wantonly and without cause; (2) where there was provocation or cause, but the punish- ment was cruel or excessive; (3) usually where the punishment is in- flicted with a deadly or dangerous weapon. Forbes v. Parsons, Craibe, 283; Fed. Cases, 4,929. The master is liable for an unjustifiable assault by an oflBcer upon a seaman where he knew of the trespass and did not interfere to prevent it. Hanson v. Fowle, 1 Sawy. 539; Fed. Cases, 6,042. Where injuries due to negligence were inflicted by the bite of a dog, on board the ship by consent of the master and owners. Held, the action was not within the terms of Rule 16, proceeding in personam but may be against the vessel for damages. The Lord Derby, 17 Fed. R. 265-266. Where a master is prosecuted for assault upon a seaman he may justify or show in mitigation that the seaman was habitually careless, Rule XVII] RULES IN ADMIRALTY 639 disobedient, or negligent. Pittingill v. Dinsmore, 2 Ware, 212; Fed. Cases, 11,045. The master's torts, involving the breach of a passenger contract, while acting strictly within the- scope of his employment render the ship liable. McGuire v. The Golden Gate, 1 McAll. 104; Fed. Cases, 8,815. The owner if not a participant is only liable for the actual damages upon a breach of passenger contract. 76. Admiralty has jurisdiction in personam over torts committed on the high seas, and a passenger may sue in admiralty the master for ill treat- ment and injuries received during the voyage. Chamberlain v. Chand- ler, 3 Mason, 242; Fed. Cases, 2,575. The jurisdiction of admiralty as to torts is limited to torts com- mitted on the high seas or on waters within the ebb and flow of the tide. Thomas v. Lane, 2 Sumn. 1 ; Fed. Cases, 13,902. Where a tort is a continued act and partly committed on land and the remainder on the high seas, the jurisdiction of the common-law courts attaches to it. If the tort originates in a port and is not a com- plete and perfect wrong until the ship is at sea, it comes within ad- miralty jurisdiction. The Yankee, 1 McAll. 467; Fed. Cases, 18,124. Admiralty does not entertain suits in rem for an assault, and in pro- ceedings in rem for wages the libellant cannot join a claim for assault. The Guiding Star, 1 Fed. B. 347-348. A claim for assaults cannot be Utigated in a suit in rem, but where the Ubel contains a cause of action in rem, the court may treat the claim for assaults as surplusage. The Falls of Keltic, 114 Fed. R. 357-359. A libel against the master and also against the ship may be main- tained for injuries due to the fault or neglect of the master. The City of Carlisle, 39 Fed. B. 808-816. Rule XVII In all suits against the ship or freight, founded upon a mere maritime hypothecation, either guits for hypothecation, express or implied, of the master, for "samst w om an moneys taken up in a foreign port for supplies or repairs or other necessaries for the voyage, without any claim of marine interest, the libellant maj proceed either in rem or against the master or the owner alone in personam. 640 RULES IN ADMIRALTY [Rule XVII Decisions To make a valid hypothecation of the ship by the master the creditor must show that the advances were made for repairs and supplies neces- sary for effectuating the objects of the voyage, or the safety of the ship, and that they could not be procured otherwise than by such hypothe- cation. The Aurora, 1 Wheal. 96-103, 4 L. ed. 46. A bond given to the consignee who had funds in hand is void. Hurry V. The Ship John and AUce, 1 Wash. C. C. 293; Fed. Cases, 6,923. Where the claim is against the owner only and no privilege is given on the vessel, no necessity need be shown afiirmatively. The Grape- shot, 9 Wall. 129-136, 19 L. ed. 651. Where proof is made of necessity for repairs or supplies, or funds raised to pay for them by the master and of credit given the ship, a presumption wiU arise, v conclusive in the absence of evidence to the contrary, of necessity for credit. 76. 141. Hypothecation of a ship can only be made in a foreign port. All porta other than that of the particular State of the United States where the vessel belongs are deemed foreign. Burk v. The M. P. Rich, 1 Cliff. 308; Fed. Cases, 2,161. If the master has funds of his own, or of the owner, within his control, or if reasonably he can procure them on his own credit or that of the owner, or by advances on the freight, or passage money, he is not at liberty to resort to a bottomry bond. 7b. Drafts for repairs were drawn by the master on the owner and ex- pressed on their face that they were ''recoverable against the vessel, freight, and cargo." Held, the drafts themselves did not create a lien on the vessel. The Woodland, 104 U. S. 180-181, 26 L. ed. 706. The master can neither sell nor hypothecate the cargo except in case of urgent necessity, and then only for the benefit of the cargo, consider- ing the situation in which it has been placed. The Julia Blake, 107 U. S. 418-426, 27 L. ed. 595. The fact that money is advanced for necessities to a ship in her home port does not give the advancers a lien as against other attaching creditors. The Brig E. A. Barnard, 2 Fed. R. 712-717. Where the master being the owner borrowed money while in the home port of the ship for repairs there made, and gave a written statement which was attached to a draft for the sum, the statement declaring that the lenders should have "beside the responsibility of the owner a lien on the ship and freight," Held, not a bottomry bond. 76. 717. Rules XVIII, XIX] RULES IN ADMIRALTY 641 Rule XVIII In all suits on bottomry bonds, properly so called, the suit shall be in rem only against the Suits on bottomry bonds, _. 1 ii. i J ii_ 7 when in rem and when in property nypotnecated, or the proceeds penonam. of the property, in whosesoever hands the same may be found, unless the master has, without authority, given the bottomry bond, or by his fraud or misconduct has avoided the same, or has subtracted the property, or unless the owner has, by his own misconduct or wrong, lost or subtracted the property, in which latter cases the suit may be in per- sonam against the wrongdoer. Decisions A bottomry bond executed in a foreign country between foreigners will be enforced in the admiralty courts of the United States when the ship is within tjie United States territory. The Jerusalem, 2 Gal. 190; Fed. Cases, 7,293. A master cannot pledge the vessel for repairs when the owners of the vessel are present at- the place where the repairs are made, or when he has funds of the owners in his control. Patton v. The Randolph, 1 Oilp. 457; Fed. Cases, 10,837. One part owner cannot take from the master a bottomry bond on the share of another part owner. lb. A valid bottomry bond may be made by the owners of a vessel citizens of the State in which is the home port of the vessel, in favor of citizens of the same State, as well as in a foreign port. The Draco, 2 Sumn. 157; Fed. Cases, 4,057. The assignee of a bottomry bond may sue in admiralty in his own name or in the name of his assignor. Burke v. The M. P. Rich, 1 Clif. 308; Fed. Oases, 2,161. Rule XIX In all suits for salvage, the suit may be in rem against the property saved, or the proceeds fflJ^' i^^'^H,:''^'^ thereof, or in personam against the party personam. at whose request and for whose benefit the salvage service has been performed. 41 642 EULES IN ADMIKALTY [Rule XIX Decisions Under the Tucker Act of Mar. 3, 1887, conferring jurisdiction over certain claims against the United States upon the District Court, such court has jurisdiction to determine claims for salvage against the United States. United States v. Cornell Steamboat Co., 137 Fed. B. 455-457, 69 CCA. 603. Possession is not necessary to give vaUdity to the lien for salvage services upon the property saved. Eads v. The Steamboat Bacon, 1 Newb. Ad. 274; Fed. Cases, 4,232. The hen for salvage is enforceable against bailees of the property saved. Gates v. Johnson, 21 Law Rep. 279; Fed. Cases, 5,268. Where property has been taken by virtue of a writ of replevin from a State court, the salvor may maintain a libel in personam against the ovfrner for salvage. Hudson v. Whitmire, 77 Fed. B. 846-848. A corporation existing for the purpose of wrecking is entitled to salvage although the persons in its employ have no share in it. The Comanche, 8 Wall. 448-474, 19 L. ed. 397. Nothing short of a contract to pay a given sum for salvage services to be rendered, or a binding engaspment to pay at all events whether successful or unsuccessful, will bar a meritorious claim for salvage. lb. 477. If in fact a salvage service is rendered, it is none the less so because the compensation to be received is determined by the terms of an agree- ment by which the compensation is not to be paid at all events but is contingent upon success. 76. 478. A libel for salvage may be filed in the name of the master and owners, though the master disclaim any right. The Blackwell, 10 Wall. 1-11, 19 L. ed. 870. Salvors may maintain a libel against the ship or cargo, or both, but a libel in rem against the vessel and in personam against the consignee of her cargo in the same suit, cannot be maintained. The Sabine, lOf U. S. 384-390, 25 L. ed. 982. Mere employment to render salvage services is no bar to a hbel there- for, the rule being that nothing short of a contract to pay a given sum for the services to be rendered, or a binding engagement to pay at all events whether successful or unsuccessful in the enterprise, will defeat the jurisdiction of the admiralty court. 76. 390. Suit must be by libel in rem, but an fittachment may be eitber-by Rule XIX] RULES IN ADMIRALTY 643 notice, or by actual levy on the property, such notice being by service upon the party holding the property, or its proceeds. Snow v. 180% Tons of Scrap Iron, 11 Fed. R. 517-519. Under Rule 19 the joinder of proceedings in rem and in personam in the same libel for salvage is prohibited. There may be a joinder against both the vessel and cargo in rem or against the owners of the vessel and the owners of the cargo in personam. Knott v. The Sabine, 2 Woods, 211; Fed. Cases, 10,366. A libel in rem and also in personam may be maintained for salvage, but the salvors can have but one satisfaction. Brevoor v. The Fair American, 1 Pet. Adm. 87; Fed. Cases, 1,847. The question is still open as to whether in suits for salvage the suits may be in personam and in rem jointly. Bondis v. Sherwood, 22 How. 214-217, 16 L. ed. 238. Under a contract for raising a sunken vessel for a stipulated sum the contractors cannot repudiate their contract and libel the vessel for salvage. lb. A suit in admiralty for salvage will not be stayed because an action of replevin between the owner and the salvor is pending in the State courts, wherein the lien for salvage may be determined. A Raft of Spars, 1 Abb. Ad. 291; Fed. Cases, 11,528. Where the owners of a vessel entitled to salvage sue without joining the master and crew or in their behalf, the proper practice is to deter- mine the amount to be awarded and to apportion it between the vessel, master, and crew. The Steamer Leipsic, 5 Fed. B. 108-114. The court of admiralty has jurisdiction to compel contribution to the ' libellants who sue jointly, by one who has received entire salvage com- pensation to which all are jointly entitled. McConnochie v. Kerr, 9 Fed. R. 50-51. It is not necessary to sustain an award for salvage, that the master and crew shall be utterly, unable to extricate their vessel or that destruc- tion must be certain but for the aid rendered; it is sufficient if there is great probability of loss without such aid. The Dolcoath, 15 Fed. B. 264-268. A seaman cannot maintain a libel for compensation claimed for extra services rendered during stress of storm, or because of great peril encountered in saving the vessel from wreck. Miller v. Kelly, Abb. Ad. 564; Fed. Cases, 9,577. 644 RULES IN ADMIRALTY [Rule XX A libel in •personam against the master cannot be maintained without proof that the service was performed for his benefit. Ih. The person incidentally benefited cannot be made liable under Rule 19 unless he has requested the salvage service or the service has been per- formed directly for his benefit. The remedy in -personam is not con- fined to the legal owner of the property saved, but extends to one who has a direct pecuniary interest in such property. United States v. Cornell Steamboat Co., 202 V. S. 184r-193, 50 L. ed. 987. A vessel belonging to a foreign government may be seized in admi- ralty when it is not employed in nor has yet formed any part of the public service of such foreign government, but is still in the hands of a private bailee. Long v. The Tampico, 16 Fed. R. 491-499. The personal property of the United States subject to a hen for sal- vage cannot be seized when in actual possession of the United States authorities. The Davis, 10 Wall. 1&-20, 19 L. ed. 875. Rule XX In all petitory and possessory suits between part owners In petitory and poases- or advcrse proprietors, or by the owners Bory suits, process, na- . ., ,i t. • . ture of. of a snip or the majority thereoi, against the master of a ship, for the ascertainment of the title and delivery of the possession, or for the possession only, or by one or more part owners against the others to obtain security for the return of the skip from any voyage undertaken without their consent, or by one or more part owners against the others to obtain possession of the ship for any voyage, upon giving security for the safe return thereof, the process shall be by an arrest of the ship, and by a monitioa to the adverse party or parties to appear and make answer to the suit. Decisions Process under Rule 20 must be in rem and in personam. The S. C. Ives, 1 Newh. Ad. 205; Fed. Cases, 7,958. An attachment of a vessel, in a common-law suit against the agents of the vessel, will not prevent a decree in favor of the owners in a peti- tionary suit. The Taranto, 1 Spr. 170; Fed. Cases, 13,751. A part owner who disapproves of a voyage sanctioned by the other part owners may require security to the amount of his interest, con- Rule XX] RULES IN ADMIRALTY 645 ditioned on the safe return of the vessel. Fox v. Paine, Crdbbe, 271- Fed. Cases, 5,014. Such security may be required although the part owner did not dissent to the voyage until after the vessel was nearly ready for sea. The Marengo, 1 Spr. 506; Fed. Cases, 9,066. Where one joint owner leaves the ship in an unsafe condition, with no one in charge, and the other part owner takes possession, an ad- miralty court will not disturb such possession. The Ocean, 1 Spr. 535; Fed. Cases, 10,401. A part owner may sustain a petitionary suit against a fraudulent possessor under a forged bill of sale, although the other part owner is not before the court. The Friendship, 2 Curt. 426; Fed. Cases, 5,123. Under a charter which gave possession and control of the ship to the charterers for the term of three months, with no clause for re- possession on a breach of the contract, Held, that admiralty had no authority to decree the possession to the owners upon a libel alleging that the charterers had broken their contract. The Prometheus, 1 Low. 491; Fed. Cases, 1,142. Where there is a dispute between part owners of a vessel, the court will not decree a sale of the whole boat upon the petition of the minority owners. Lewis v. Kinney, 5 Dill. 159; Fed. Cases, 8,325. Doubted if the court has power to require a stipulation and ascertain the reasonable compensation for the value of the use of the minority interest, instead of the usual stipulation for the return of the vessel. lb. In possessory suits, a court of admiralty having jurisdiction of the principal cause of action, has also jiu'isdiction to decree an accounting between the parties as to the earnings and expenses of the vessel prior to filing the hbel. The Emma B., 140 Fed. R. 771. Wh«re a Ubel for partition of a vessel is filed, the court will not re- quire that she be kept in custody, provided the respondent will give a proper bond for the return of the vessel. lb. 770. The right to a lien given by a State statute to persons furnishing supplies or labor for repairs to a vessel under contract with her master and part owner is not affected by the filing of a bill by other part owners for possession after the eontraet was made. The Templar, 59 Fed. R. 203. Where there are funds in the registry of the court from the sale of a vessel in a possessory suit, the court has power to pay thereform claims for repairs and supplies furnished the vessel. lb. 646 RULES IN ADMIRALTY [Rule XXI ' The proper proceedings by the purchasers of a ship at a marshal's sale to obtain possession, where the ship is claimed to be wrongfully withheld, is by an arrest of the ship and a monition to the adverse party to appear and answer. Blanchard v. The Cavalier, 38 Hunt Mer. Mag. 325; Fed. Cases, 1,508. The proceeding is in personam, the vessel being placed under attach- ment only for the purpose of being adjudged to the party who estab- lishes his right to her. 76. The master may not refuse to deliver a vessel to her owners because he claims a lien upon her. Muir v. The Brig Brisk, 4 Ben. 252; Fed. Cases, 9,901. Rule XXI In all cases of a final decree for the payment of money, the libellant shall have a writ of execution, in the nature of Money decrees enforced a fieri fttcias, Commanding the marshal by execution. ^j. j^jg deputy to Icvy and collect the amount thereof out of the goods and chattels, lands and tenements, or other real estate, of the defendant or stipu- lators. Decisions The stipulation for the release of a vessel takes the place of the vessel. The Fidelity, 16 Blatchf. 669; Fed. Cases, 4,758. Only those who have signed the stipulation given to release the vessel may be proceeded against by personal execution. Atlantic Mutual Ins. Co. v. Alexandre, 16 Fed. B. 279-282. The phrase "defendants or stipulators" in Rule 21 refers to the judgment against one or the other according to the nature of the action, and not to a judgment against both jointly. 7b. 282. Under Rule 21 execution goes against the stipulators on a decree against the principal, the sureties subjecting themselves by force of their undertaking to abide and fulfill the decree against the principal, and the execution issues without intermediate applications or delays. Gaines v. Travis, Abb. Ad. 422; Fed. Cases, 5,180. No decree can be made for costs where a suit in rem is dismissed for want of jurisdiction. The Lindrup, 70 Fed. R. 718-719. A court of admiralty has jurisdiction to enforce the decree of a foreign admiralty court at the instance of a party without letters rogatory. Pennsylvania Ry. Co. v. Gilhooley, ^ Fed. B. 618-619. Rule XXII] RULES IN ADMIRALTY 647 The fact that a decree upon a release bond is in excess of the penalty named in the bond does not deprive the court of jurisdiction. The judgment of the court is a nullity for the excess only. Munks v. Jack- eon, 66 Fed. B. 571-574, 13 CCA. 641. The death of the claimant will not prevent a judgment against the surety upon the release bond. 76. 574. Where the decree of the lower court is confirmed on appeal no execu- tion can issue until the entry of a formal decree of award. Harris v. Wheeler, 8 Blatchf. 81; Fed. Cases, 6,130. There is no rule of practice in admiralty which requires notice of a final decree. Gaines v. Travis, Abb. Ad. 422; Fed. Cases, 5,180. A decree for the payment of money must be enforced by execution as prescribed in Rule 21. The court has no power to enforce such a decree by sequestration, or punishment for contempt. The Blanch Page, 16 Blatchf. 1; Fed. Cases, 1,524. Under Rule 21 an execution in the nature of a fieri facias issues on a final decree for the payment of money commanding the marshal to levy and collect the amount thereof out of the goods and chattels, lands and tenements, or other real estate of the defendants or stipu- lators. Ward V. Chamberlain, 2 Black, 430-435. 17 L. ed. 319. Judgments and decrees rendered in the courts of the United States are liens on defendant's real estate in all cases where similar judgments or decrees of State courts are made liens by the law of the State in which the same are rendered. Decrees for the payment of money in admiralty suits in personam are similarly liens upon the land. lb. 438. Where no stipulation has been given for its payment when final decree has been rendered in favor of a libellant, and the execution can- not be levied upon corporeal property of the defendant because none is found, the court has power by supplementary proceedings to cause his rights and credits to be seized by attachment or garnishment, where property of that kind is subject to debts by the local law. Lee V. Thompson, 3 Woods, 167; Fed. Cases, 8,202. Rule XXII All informations and libels of information upon seizures for any breach of the revenue, or naviga- J°f°™?«?°= ^iLF't tion, or other laws of the United States, state. shall state the place of seizure, whether it be on land or on the high seas, or on navigable waters within the admiralty 648 BULES IN ADMIRAIiTT [Rule XXII and maritime jurisdiction of the United States, and the district within which the property is brought and where it then is. The information or libel of information shall also To propound grounds propound in distinct articles the matters of forfeiture and have ,. , , , . prayer for process. relied on as grounds or causes oi for- feiture, and aver the same to be contrary to the form of the statute or statutes of the United States in, such case provided, as the case may require, and shall conclude with a prayer of due process to enforce the forfeiture, and to give notice to all persons concerned in interest to appear and show cause at the return-day of the process why the forfeiture should not be decreed. Decisions The libel for forfeiture must be certain and particular in its aver- ments of all the material facts which constitute the offense. The Brig Caroline v. The United States, 7 Cranch, 496-500, 3 L. ed. 417. If informal, it may be amended by leave of the court. lb. 600. An averment that the vessel was "built, fitted or otherwise pre- pared or caused to sail," Held, bad for uncertainty as to which of the several illegal acts constitute the offense charged. The Brig Caroline, 1 Brock. 384; Fed. Cases, 2,418. The Ubel to obtain a forfeiture must propound in distinct articles the various allegations of fact upon which the libellant relies, as grounds of forfeiture. 18,000 Gallons of Distilled Spirits, 5 Ben, 4; Fed. Cases, 4,317. The government will not be compelled to elect which of several allegations in a libel it will rely upon to sustain a forfeiture. lb. The libel must aver specially all the facts which constitute the offense, but it may be amended even after reversal to supply substantial aver- ments. The Schooner Anne v. The United States, 7 Cranch, 570-572, 3 L. ed. 442. The fact and place of seizure must be averred in the libel or it will be dismissed at any stage of the proceedings. United States v. One Raft of Timber, 13 Fed. R. 796-799. A general reference to the provisions of the statute offended against is not sufficient; there must be independent of this allegation a case stated which shows the law has been violated. The reference to the Rule XXII] KULES IN ADMIRALTY 649 Btatute may direct attention to the particular statute by which the prosecution is to be sustained, but forms no part of the description of the defense. Schooner Hoppet v. United States, 7 Crunch, 389-393, 3 L. ed. 380. The same technical nicety required in indictments in common law is not required in an information for forfeiture. It is suflBcient if the offense be described in the words of the law and so set out that if the allegation be true, the case must be within the statute. The Samuel, 1 Wheat. 9-15, 4 L. ed. 23. Matters which constitute a defense need not be alleged in the libel. The Margaret, 9 Wheal. 421^26, 6 L. ed. 125. Jurisdiction depends upon the fact and place of seizure not upon the place where the offense was committed, and this seizure must be sub- sisting at the time the hbel was filed. The Anne, 9 Cranch, 289-291, 3 L. ed. 734. If a seizure be completely abandoned and the property restored by the voluntary act of the party who made the seizure, all rights under it are gone. /6. 291. Upon information of forfeiture against the vessel and her master jointly, the suit should be dismissed as to the master claiming the right to a jury trial, and proceeded with against the vessel. United States V. The Queen, 11 Blatchf. 416; Fed. Cases, 16,108. In ft hbel of information, it is of no consequence whether the original grounds of seizure are sustained or not, if the goods are in point of law subject to forfeiture. The United States are not bound to the causes which influence the acts of the seizors. Wood v. United States, 16 Pet. 342-359, 10 L. ed. 987. The Ubel of information may state the charge in the alternative, if each alternative constitutes an offense. The Emily & Caroline, 9 Wheat. 381-387, 6 L. ed. 116. Where a vessel has been seized and released on bond, this fact may be pleaded in abatement to a subsequent libel in another district for other offenses committed during the same period. The Haytian Re- pubUc, 57 Fed. R. 508-512, 6 C. C. A. 465. A libel may be amended to charge a fact not known to the libellot when the seizure was made. /&. 511. No action of trespass lies in a common-law tribunal while proceed- ings for forfeiture are pending. After an acquittal, an action of tres- pass against the officer may be maintained in the State court for the seizure, unless the acquittal was with a certificate of reasonable cause of seizure. Gelston v. Hoyt, 3 Wheat. 246-314, 4 L. ed. 382. Where property is libelled as forfeited to the government, the sole 650 RULES IN ADSIIRALTY [Rule XXIII object of the suit is to ascertain whether the seizure be rightful and forfeiture incurred, or not. lb. 314. If it is condemned, the title to the property is completely changed. If it is acquitted, the taint of forfeiture is completely removed, and cannot be reannexed to it. lb.. 318. If a seizure is made on the high seas or within the territory of a foreign power, the district court where the property is carried has jurisdiction to proceed in rem for a forfeiture. The Merino, 9 Wheat. 391-402, 6 L. ed. 118. Informations under the revenue laws, and forfeiture of goods seek- ing no judgment of fine or imprisonment against a person, are civil actions, although so far in the nature of criminal proceedings that a general verdict on several counts in the information is upheld, if one count is good. Snyder v. United States, 112 U. S. 216-217, 28 L. ed. 697. Rule XXIII AH libels in instance causes, civil or maritime, shall state Libels in instance causes, the nature of the cause; as, for example, what to state. ^j^^^^ j^ jg ^ cause, civil and maritime, of contract, or of tort or damage, or of salvage, or of possession, or otherwise, as the case may be; and, if the libel be in rem, that the property is within the district; and, if in personam, the names and occupations and places of residence of the To propound allegations parties. The libel shall also propound '°''®'' ™" and articulate in distinct articles the va- rious allegations of fact upon which the libellant relies in support of his suit, so that the defendant may be enabled ■to answer distinctly and separately the several matters contained in each article; and it shall conclude with a prayer of due process to enforce his rights, in rem or in personam (as the case may require), and for such reUef and redress as the court is competent to give in the premises. And the May require answer on libellant may further require the defend- °** ■ ant to answer on oath all interrogatories propounded by him touching all and singular the allega- tions in the libel at the close or conclusion thereof. Decisions A libel should always show the jurisdiction of the court by suitable averments. Boono v. The Hornet, Crabbe, 426; Fed. Cases, 1,640. Rule XXIII] RULES IN ADMIRALTY 651 It is indispensable to found jurisdiction that the libel should state that the tort was committed at a place within the jurisdiction of ad- miralty. Thomas v. Lane, 2 Sumn. 1 ; Fed. Cases, 12,902. Separate and distinct trespasses by several persons charged not jointly but severally cannot be joined in the same Ubel. lb. The libel should state the subject-matter in articles with certainty and precision, by averments admitting of distinct answers. The Boa- ton, 1 Sumn. 328; Fed. Cases, 1,673. The answer should meet every material allegation of the libel and either admit or deny or set up a defense to each averment. lb. No evidence is admissible except it is relevant to some of the allega- tions in the libel or answer. lb. A Ubel for a maritime tort must set forth by a distinct allegation each separate and distinct wrong on which the libellant intends to rely, and for which he claims damages, and proofs must be confined to the issues made by the libel and answer. Pettingill v. Dinsmore, 2 Ware, 212; Fed. Cases, 11,045. In admiralty the rules of pleading do not require the technical ac- curacy necessary in courts of law. In admiralty there are no technical rules erf variance or departure. Though a party cannot properly prove what is not properly alleged, yet the court having the whole matter before it where facts appear from proceedings properly had in the cause are bound to decree in accordance with the facts established. The Prudence, 204 Fed. B. 66. In a hbel for collision, Rule 23 requires a plain statement of the move- ments of the two vessels as they approached each other, their courses, the mode in which they were sailed and the circumstances of wind and tide where they have any bearing, and also the distinct state- ments of the acts which are claimed to have caused the disaster and of circumstances connecting the alleged faults and collision as cause and effect, so that they can be plainly understood. McWilliams v. Steam Tug Vun, 2 Fed. R. 874r-875. If the libellant sets forth a detailed statement of the movements of his own vessel he cannot be required to add averments as t& other matters of detail upon which he does not intend to rely on the trial. Virginia Home Ins. Co. v. Sundberg, 54 Fed. B. 389-390. A Ubel for injuries should state each distinct act of injury with rea- sonable certainty of time and place in separate statements. Tread- well V. Joseph, 1 Sumn. 390; Fed. Cases, 14,157. It is not necessary to state any fact which constitutes a defense. The Aurora v. United States, 7 Cram:h, 382-388, 3 L. ed. 378. 652 RULES m ADMIRALTY [RuleXXIII Where the vessel was in the district when the Ubel was verified, but had left when the libel was filed, and upon her retvirn was duly served with process, it is a compliance with Rule 23, that the Ubel shall state that the property is within the district. The Queen of the Pacific, 61 Fed. R. 213-214. Pleas and exceptions in admiralty must set forth the matter of de- fense in clear and definite terms, though it is not necessary they should embody the formalities of common-law pleas. The Navarro, 1 Ah. 127; Fed. Cases, 10,059. Where a defense is put in by way of justification, it must admit the fact. Treadwell v. Joseph, 1 Sumn. 390; Fed. Cases, 14,157. The burden of proof is on the respondent where a justification is pleaded. 76. The parties may be required to supply any defect in the pleadings at any stage of the cause by exceptions filed at the proper time. The Havre, 1 Ben. 295; Fed. Cases, 6,232. Inserting the name of a party having no interest as a party libellant, while a variance that would be fatal in an action at law, is in admiralty an irregularity which wiU be disregarded. Talbot v. Wakeman, 19 How. Pr. 36; Fed. Cases, 13,731. A mortgagee of a ship sunk by collision may be joined with the owners as libellants in an action against the offending vessel, as such mortgagee has an interest in the injured vessel sufficient to entitle him to seek relief in admiralty. Where jurisdiction of the res has been otherwise acquired in direct proceedings in admiralty, the mortgagee's interest in the res is recognized, and he may intervene for the protection of his interests either before or after the sale. The Grand Republic, 10 Fed. B. 398-400. Where property of different parties is injured by a common disaster through the negligence of a carrier, the different shippers, or their assignees, may file a joint libel in admiralty to recover damages; in such case the demand of each libellant should be alleged in a distinct article. Sun Mutual Ins. Co. v. Mississippi Valley Trans. Co., 14 Fed. B. 699- 701. A libel on a charter party should have attached thereto a copy of the charter on which the suit is brought. Card v. Hines, 33 Fed. B. 189. The interrogatories annexed to a libel must be confined to the allega- tions of the libel. Havermeyers & E. S. R. Co. v. Compania Trans. Espanola, 43 Fed. R. 90.' See note on page 91. Rule XXIV] RULES IN ADMIRALTY 663 Answers to interrogatoriea propounded under Rule 23 are not strictly evidence in the cause in any different sense than that in which the plead- ings are evidence. Such answers to interrogatories are designed as ampUfications of the pleadings, so as to dispense with the taking of proof on the facts which may be admitted. The Serapis, 37 Fed R 436-442. It is immaterial whether the answers to the interrogatories are made a part of the answer itself or separately. They are parts of the record and, like the pleadings, may be referred to by either party. What is admitted needs no further proof, but as respects matters at issue, such answers are not affirmative proof in favor of the party making them. lb. 442. But see the next case. Each party in admiralty has a right to require the personal answers of the other under oath to any interrogatories touching the matter in issue. The David Pratt, 1 Ware, 509; Fed. Cases, 3,597. If the defendant refuses to answer any interrogatory propounded by the hbellant, the court will take the charges in the libel upon which they are founded as confessed. lb. Answers to special interrogatories are evidence. lb. Where claimants in their answer interpose new matter in avoidance of the allegations of the libel, the libellant may not propound inter- rogatories to the claimant thereafter, but should amend his libel upon application to the court, and attach thereto the desired interrogatories. The Edwin Baxter, 32 Fed. R. 296. No citizen of the United States having a cause of action cognizable in a court of admiralty, can be denied the right to invoke the jurisdic- tion of our courts; and a, citizen of the United States may sue in the Federal courts, a foreign ship upon a maritime contract, and in such suit the court will incidentally therein decide the claims of foreign co-libeUants. The Falls of Keltic, 114 Fed. R. 357-359. Where the Ubel is filed upon a shipping contract and also for its tortuous violation by the master, the case is not one in which the court will compel the libellant to elect which branch of the remedy he will pursue. He may pursue his claim in a joint action against the ship in rem and the master personally. The Zenobia, Abb. Ad. 48; Fed. Cases, 18,208. Rule XXIV In all informations and libels in causes of admiralty and maritime jurisdiction, amendments in Amendments to ubeia, matters of form may be made at any ^^-° *"'"™°' time, on motion to the court, as of course. And new counts 654 RULES IN ADMIRALTY [Rule XXIV may be filed, and amendments in matters of substance may On motion. be made, upon motion, at any time before the final decree, upon such terms as the court shall When terms imposed on impose. And whcre any defect of form ''''^"*°*- is set down by the defendant upon special exceptions, and is allowed, the court may, in granting leave to amend, impose terms upon the libellant. Decisions The allowance of amendments to a libel is within the discretion of the court. Newell v. Norton, 3 WaU. 257-266, 18 L. ed. 271. The libellant may move to amend his libel when excepted to with- out submitting to the exception. Towne v. Western Metropolis, 28 How. Pr. 283; Fed. Cases, 14,114. Amendments even in matters of substance are allowable until the termination of the cause; but where the opposite party would be prej- udiced thereby an amendment wiU not be allowed. O'Connell v. 1,002 Bales of Sisal Hemp, 75 Fed. R. 408-409. ft A. supplemental libel may be allowed to stand as an original libel. Henderson v. Three Hundred Tons of Iron Ore, 38 Fed. R. 36. A decree in admiralty may be altered to conform to the facts arising after the libel is filed. The C. H. Poster, 1 Fed. R. 733-735. Where the amendment is not germane to the claim set forth in the original libel, it should not be allowed. The Zona, 80 Fed. R. 933-936; 26 C. C. A. 261. After a Ubel has been filed for a collision and the usual stipulation, answer, and judgment given, other libels for damages arising from the same collision are deemed to be a new cause of action, and the court has no jurisdiction against the sureties, upon the stipulation given in the original libel. The Oregon, 158 U. S. 186-205, 39 L. ed. 943. The mere change in the name of the libellant as substituting the real party in interest for a nominal party, does not release the sureties. The Beaconsfield, 158 U. S. 303-312, 39 L. ed. 993. A libel may be amended after reversal, where defective for want of substantial averments. The Schooner Anne v. United States, 7 Cranch, 670-572, 3 J., ed. 472. Rule XXIV] RULES IN ADMIKALTY 655 A libel may be amended in the appellate court so as to make a claim for damages because of a vexatious appeal. Weaver v. Thomson, 1 Watt. Jr. 343; Fed. Cases, 17,311. If the cause of action is defectively stated in the Ubel, but it ap- pears that the offense has been committed, the court on appeal will remand the cause with directions that the libel be amended. The Mary Ann, 8 Wheat. 380-390, 8 L. ed. 641. The appellate court may allow amendments to the pleadings, either to the libel or to the answer, in order that the case may be properly beard. The Morning Star, 14 Fed. B. 866-867. On appeal the court is cautious in admitting new matters of defense, where the matter must have been well known at the time of the hear- ing, or before. Coffin v. Jenkins, 3 Story, 108; Fed. Cases, 2,948. Parties have a right to make any amendment in the appellate court, which is required to bring forward the merits of the case. But an amendment which introduces a new subject of controversy will not be allowed. Housemant'. Schooner North Carolina, 15Pe<.40-50, 10L.ed.654. Amendments will not be allowed to give jurisdiction to the appellate court where no jurisdiction existed when the trial was had and appeal taken. Held, in a cause where it was sought to amend by including interest, to give jurisdiction. Udall v. Steamship Ohio, 17 How. 17-19, 15 L. ed. 42. An amendment wiU not be allowed making a suit in rem a suit in personam where the joinder of a claim in rem and one in personam is forbidden. The Steamship Zodiac, 5 Fed. B. 220-223. A suit in rerri cannot be turned into a suit in personam by amend- ment without further service of process, and claimant's consent. The Monte A., 12 Fed. B. 331-335. Where the proof makes out a case, but not the case alleged in the pleadings, the libel may be amended to introduce new allegations showing the actual facts. The City of New Orleans, 33 Fed. B. 683-685. Where the merits clearly appear on the record, it is a settled practice in admiralty not to dismiss the libel, but to aUow the party to assert his rights in a new allegation. The Imogen M. Terry, 19 Fed. B. 463- 464. The libel may be amended to pray for interest on the award in a collision case, after all the issues except the amount of damages have been determiaed. The J. E. Trudeau, 54 F^d. B- 907-912; 4 C. C, 4, 657, 656 EULES JN ADMIEALTY [Rule XXV An amendment of a libel to increase the claim for demurrage should be denied, when the facts were known before the claim was presented, and the amount claimed has been named in a pleading three times verified, and the amendment was not asked until after the matter had been referred to the commissioners, after a decision in the cause. New Haven Steamboat Co. v. The Mayor, 36 Fed. B. 716-718. Where no cause of action esdsted when the libel was filed, Held, that the proceedings being wholly defective should not be sustained through a supplemental libel, founded on matters arising subsequently; but a supplemental libel may be filed to be treated as an original Hbel as of that date. Henderson v. Three Hundred Tons of Iron Ore, 38 Fed. B. 36-40. The fact that the property has been released on bail will not preclude a proper amendment of the Ubel. Rule 24 does not mean that in every case counts presenting new causes of action may be added, but leaves the matter to the discretion of the court to be exercised upon principles of justice. The general rule of pleading is unabated that amendments are always limited by due consideration of the rights of the opposite party, and where by the amendment he would be prejudiced, it is not allowed. The Corozal, 19 Fed. B. 655-656. Where the res is the same, the tort and contract on which the claim for damages is based, are the same, and where the original hbel contains all the facts and the parties that are necessary to amend by, the libel may be amended so as to allow a person who originally sued in her own right, to sue as guardian of her minor children. The Manhasset, 19 Fed. B. 430. Where the cause of action set forth in the libel is for a tort, but the evidence establishes a cause of action upon contract, an amendment which wiU work no hardships to the defendant may be allowed, under the liberal practice of admiralty courts. Davis v. Adams, 102 Fed. B. 520, 523; 42 C. C. A. 493. Amendments may be made in the appellate court to include claims rejected in the trial court because not specified in the pleading, provided the amendment is confined to the original subject of the controversy and not outside of the general scope of the pleadings. The Charles Morgan, 115 U. S. 69-76, 29 L. ed. 316. Rule XXV In all cases of libels in personam, the court may, in its deteidait to ''Tve™™- <^scretion, upon the appearance of the curity for coats, when, defendant, where no bail has been taken, and no attachment of property has been made to answer Rule XXVI] KULES IN ADMIRALTY 657 the exigency of the suit, require the defendant to give a stipulation, with sureties, in such sum as the court shall direct, to pay all costs and expenses which shall be awarded against him in the suit, upon the final adjudication thereof, or by any interlocutory order in the progress of the suit. Decisions The court will not order the defendant to give stipulation to the action under pain of imprisonment in a case in which he is not liable to arrest. Louisiana Ins. Co. v. Nickerson, 2 Low. 310; Fed. Cases, 8,539. It is the ordinary practice of admiralty to require a stipulation for costs from a respondent on entering his appearance and answering in an action in personam, although the process is a citation and not a warrant. Rawson v. Lyon, 15 Fed. R. 831-832. The privilege to require a stipulation for costs may be waived by delay, and as all the obUgations of the defendant to the libeUants as to the manner of conducting the case are merged in the final decree, it is then too late to seek to require the respondent to file a stipulation for costs. Pharo v. Smith, 18 UmB. Pr. 47; Fed. Cases, 11,062. Rule XXVI In suits in rem, the party claiming the property shall verify his claim on oath or solemn afiir- in guits in rem, claim to mation, statbig that the claimant by ''^^^^^'i- whom or on whose behalf the claim is made is the true and bona fide owner, and that no other person is the owner thereof. And, where- the claim is put in by an agent or consignee, he shall also make oath that Oath by agent, he is duly authorized thereto by the owner; or, if the property be, at the time of the arrest, in the possession of the master of a ship, that he is the lawful bailee thereof for the owner. And, upon putting in such claim, the claimant shall file a stipulation, with sureties, in such sum claimant to give se- as the court shall direct, for the payment °""'^ °"^^ ^' of all costs and expenses which shall be awarded against him by the final decree of the court, or, upon an appeal, by the appellate court. 42 658 RULES IN ADMIKALTY [Rule XXVI Decisions A claimant in admiralty practice assumes the situation of a defendant as respects the Ubel, and as such may be required to answer the libel. The Two Marys, 12 Fed. B. 152-154. / A mortgagee whose mortgage is in default so that he is entitled to possession may appear as a claimant and obtain the discharge of the vessel from attachment by giving the usual bond. The Jenny Lind, 3 Blatchf. 513; Fed. Cases, 7,287. To intervene and defend in admiralty in rem, the party must have a lien or a proprietory interest in the vessel seized which must be set out and verified in the claim and answer. The R. W. Skillinger, 1 Flip. 436; Fed. Cases, 12,181. Where the claim is put in by an agent he must make oath that he is duly authorized thereto by the owner. lb. The objection to the right of a claimant to intervene in an admiralty cause must be taken by a, proper exception before answer and replica- tion and hearing upon the merits. If the right is not put in issue by preliminary exceptions, the libellant wiU be deemed to have adnaitted the claimant's right to contest. Thomas v. Kosciusko, 11 N. Y. Leg. Obs. 38; Fed. Cases, 13,901. The owner of property sued in rem is not recognized until he comes in, claims, and defends. The J. W. French, 13 Fed. R. 916-918. If the claim is not put in issue, and the libeUant goes to hearing on the merits without an objection, it is an admission that the claimant had an interest in the property at the time of the answer, and the right to defend. The Prindiville, 1 Brown's Adm. 485; Fed. Cases, 11,435. , If a claim is made through an agent, the agent must make oath to his, behef of the verity of the claim, and if necessary produce proof of his authority before he can be' admitted to put in a claim. If this is not done it furnishes matter of exception. United States v. 422 Casks of Wine, 1 Pet. 547-549, 7 L. ed. 257. The facts of the claimant's interest may be put in issue by exception, but if the claim is admitted without objection, and pleadings to the merits are put in, it is a waiver of the right to contest the claimant's interest, and an admission that the party is rightfully in court and capable of contesting the merits. lb. 550. If it should afterward appear that the property in suit belongs to a third person, the court may retain the property in its custody imtil the true owner can interpose a claim. lb. 550. lluieXXVli] RULES IN ADklHALTt 659 Each article of the libel must be met by a distinct article in the an- swer, as no form of general issue is allowable, and the verification should be that the statements made by the respondent in the answer are true or that they are true according to his information and belief. A veri- fication in the form that the party behaves so and so, is improper. United States v. Twenty-five Barrels of Alcohol, 10 Int. Rev. Rec. 17; Fed. Cases, 16,562. If the owner desires to contest the liability of the ship for losses sued for, under Rule 26 he is required to give a stipulation for the costs regularly incident to the contest, including fees of the clerk, marshal, proctors, witnesses, etc., but not for the amount of the clerk's com- missions. The Vernon, 36 Fed. B. 113-114. Rule XXVII . In all libels in causes of civil and maritime jurisdiction, whether in rem or in ■personam, the answer Answer of defendant to of the defendant to the allegations in beonoath. the libel shall be on oath or solemn affirmation; and the answer shall be full and explicit and To be fuu and explicit. distinct to each separate article and separate allegation in the libel, in the same order as numbered in the libel, and shall also answer in like manner each interrogatory propounded at the close of the libel. Decisions The answer is required to be on oath. Gammell v. Skinner, 2 Gal. 45; Fed. Cases, 5,210. A plea to the jurisdiction must be verified by defendant himself and not by another on his behalf. Teasdale v. The Rambler, Bee's Adm. 9; Fed. Cases, 13,815. The libellant is not bound to swear to the libel, but the answer must be sworn to by the respondent. Coffin v. -Jenkins, 3 Story, 108; Fed. Cases, 2,948. A special repUcation is only allowed upon order of the court to be filed as a cross-bill. lb. The rule of chancery courts that the answer of the defendant is equal to two disinterested witnesses, or one witness and countervailing cir- cumstances, does not prevail in admiralty courts, even when the answer is responsive to interrogatories propounded. Eads v. The H. D. Bacon, 1 Newb. Ad. 274; Fed. Cases, 4,232. 660 RULES INf ADMIRALTY [Rule XXVIIl Where respondent has no knowledge concerning the matter contained in any article of the libel, he may answer that he is ignorant thereof, but he should also state what his beUef about the matter is. The City of Salem, 10 Fed. B. 843-844. Rule XXVIII The libellant may except to the suiEciency, or fullness, or Libeiiant may except distinctness, OF relevancy of the answer to answer. ^^ ^j^^ articles and interrogatories in the libel; and, if the court shall adjudge the same exceptions, or any of them, to be good and valid, the court shall order Defendant when to an- the defendant forthwith, within such swerover. ^jjjjg ^^ ^j^g court shall direct, to answer the same, and may further order the defendant to pay such costs as the court shall adjudge reasonable. Decisions The exceptions should specify whether taken for insufficiency or impertinence. An exception to an allegation for both causes, or one or the other of them, is bad. The Whistler, 13 Fed. B. 295-296. An exception for insufficiency is allowed when the answer so far as excepted to is not a full and explicit response to the allegation or alle- gations of the hbel; an exception for impertinence raises the question whether the answer is a response and defense to such allegation. 76. 296. A general exception as to the form of the answer will not be allowed. Ejfceptions should briefly and clearly specify the parts excepted to. The Dictator, 30 Fed. B. 699. Exceptions to a libel or answer must be decided on the pleadings, and affidavits will not be considered. The Prince Steam Shipping Co. V. Lehman, 39 Fed. B. 704. Where exceptions to an answer allege the ground of exception fol- lowed by specifications, the failure to sustain any specification will be fatal to the exception to which the specification is attached. The In- trepid, 42 Fed. B. 185-187. Exceptions to pleadings in collision cases are permitted only when made in good faith for the sole purpose of obtaining a full statement of facts which the law requires. Ih. 188. Where exceptions strike at the substance of the entire controversy*, or where they object to mere errors of form and style of an answer, they lluleXXIX] RULES IN ADMIRALTY 661 will be overruled. New Haven Towing Co. v. City of New Haven 116 Fed. R. 762. An allegation in an answer which serves no legal purpose, and is a mere slur upon the hbellant, should be struck out on exceptions for impertinence. The Pioneer, 1 Deady, 58; Fed. Cases, 11,176. The court wiU disregard exceptions of a formal nature first raised at the hearing. Furniss v. The Magoon, Olc. 55; Fed. Cases, 5,163. Objections in the nature of a dilatory plea which do not go to the merits of the action will be deemed to be waived after an answer or claim filed. lb. A plea to the jurisdiction may be joined with an answer to the merits. The Lindrup, 70 Fed. R. 718-719. Exceptions to a pleading in admiralty have the effect of a demurrer, and also that of a motion to make the pleading more definite and cer- tain. Quinn v. The Transport, 1 Ben. Adm. 86; Fed. Cases, 11,516. Where, in a collision case, the hbellant states a bare cause of action and omits the fuU and frank narrative of the material circumstances attending the accident, an exception to the libel should be sustained. Jb, Rule XXIX If the defendant shall omit or refuse to make due answer to the libel upon the return-day of the PeJendant not answer- ^ ^ '^ ing, libel taken pro con- process, or other day assigned by the /«ss»- court, the court shall pronounce him to be in contumacy and default; and thereupon the Ubel shall be adjudged to be taken pro confesso against him, and the court shall proceed to hear the cause ex parte, and adjudge therein as to law and justice shall appertain. But the court may, in its dis- cretion, set aside the default, and, upon Default may be set the application of the defendant, admit him to make answer to the libel, at any time before the final hearing and decree, upon his payment of all the costs of the suit up to the time of granting leave therefor. Decisions Where the respondent refuses to answer interrogatories attached to or contained in the libel, the court will take the charges in the libel on which they are founded as confessed. The David Pratt, 1 Ware, 609; Fed. Cases, 3,597. 66^ ETJLES IN ADMiRALTY' [Rule XXX Where the defendant's neglect to answer the libel is due to ignorance of the practice of the court, any evidence which he may offer may be received by the court if in the ends of justice the rules of the court should be waived, so as not to operate as a surprise on the ignorance of a party and debar him from making a just defense. 76. If the rules of court do not allow this defense to be made by defend- ant's proctor, it may receive any proper evidence offered in the interest of justice by a proctor as amicus curice. lb. The effect of a default to appear in an admiralty proceeding is the same as in an action at law. It is a virtual confession. The default es- tabUshes the fact averred in the libel of information as effectively as it can be estabUshed on hearing, and warrants a decree if the libel contains the necessary averments. Miller v. The United States, 1 1 Wall. 268-303, 20 L. ed. 135. Neither sec. 19, nor any other part of the Act of 1789 requires that there shall be a hearing after default in admiralty causes. lb. 302. Upon an application to vacate an order pro confesso, the respondent must satisfactorily account for laches, and exhibit either by answer or affidavit a meritorious defense. Scott v. Young America, Newb. 107; Fed. Cases, 12,550. A decree pro confesso is not a final decree, but the court thereafter is to hear the cause ex parte, or may refer it to a commissioner to ascertain and report. The Lopez, 43 Fed. R. 95-96. The case of Miller v. The United States, 11 Wall. 268, distinguished, and the rule in admiralty suits ex contractu held to be different. lb. 96. Rule XXX In all cases where the defendant answers, but does not ^u/red'^t"* m^e™urthlr ^'^^^^^ ^^^^y ^^^ explicitly and . dis- answ^r- tinctly to all the matters in any article of the libel, and exception is taken thereto by the libellant, and the exception is allowed, the court may, by attachment, compel the defendant to make further answer thereto, or may direct the matter of the exception to be taken pro confesso against the defendant, to the full purport and effect of the article^ to which it purports to answer, and as if no answer had been put in thereto. Decisions No form of general issue is allowed to a libel, a libel of information, or an information. But each article therein must be met by an article in Rule XXXI] RULES IN ADMIRALTY 663 the answer making a distinct issue on the matters alleged. United States V. Twenty-five Barrels of Alcohol, 10 Int. Rev. 17; Fed. Cases, 16,526. The answer must admit or deny each allegation of the libel jn order that the libeUant may know what allegations he must meet. The Dic- tator, 30 Fed. B. 699. An omission in an answer to notice an allegation of the Hbel does not admit it. lb. , The libellant is entitled to an admission or denial of each distinct and separate avea-ment in his libel, separately and distinctly. Virginia Home Ins. Go. v. Sundberg, 54 Fed. R. 389-390. Rule XXXI The defendant may object, by his answer, to answer any allegation or interrogatory contained in what allegations de- ,,,.,,,., .,, , . , tendant need not an- the libel which will expose him to any swer. prosecution or punishment for crime, or for any penalty, or any forfeiture of his property for any penal offense. Decisions i Rule 31 is but an application of the provision of the Fifth Amend- ment of the Constitution, that no person shall be compelled in a criminal case to be a witness against himself, and the rule of the common law extending to cases of liability to a pecuniary forfeiture. Pollock v. The Laura, 5 Fed. R. 133-143. The exemption provided by Rule 31 is equally applicable to a case where the defendant may expect the like evil consequences of an ad- mission in the same suit, as to a case where his admission may be used against him in a criminal prosecution in some other suit or court. 7b. 143. A corporation is entitled to the benefit of Rule 31. lb. 143. Held, in a proceeding for the offense of perjury, that since the passage of the Act of Feb. 25, 1868, sec. 860, Rev. Stats. {U. S. Comp. Stats. 1901, p. 661), providing that no answer or pleading of ^ny party shall be used against such party, in any proceeding for the enforcement of any penalty or forfeiture, etc., that the general rule which excuses a witness from testifying where his answer may lead to some criminal charge against him, should be no longer upheld. United States v. McCarthey, 18 Fed. R. 87-89. It is not necessary that a person should be personally before the court in order to avail himself of the privilege given by Rule 31. If a party 664 RULES IN ADMIRALTY [Rule XXXII desires to avail himself of the privilege of not giving evidence of in- criminating matter he must say so in unmistakable language and give the reason for excusing himself, and the privilege should be claimed after the paxty is sworn, so that his claim may be under the sanction of an oath. In re Knickerbocker Steamboat Co., 139 Fed. B. 713-716. Rule XXXII The defendant shall have a right to require the personal Defendant may require answer of the libellant upon oath or answer of the libellant m ,' i • j_ x • to interrogatories. solemn aflirmation to any interrogatories which he may, at the close of his answer, propound to the libellant touching any matters charged in the libel, or touching any matter of defense set up in the answer, sub- ject to the like exception as to matters which shall expose the libellant to any persecution, or punishment, or for- feiture, as is provided in Eule 31. In default of due an- on default of same, U- swer by the libellant to such interroga- bei may be dismissed. ^^^^^ ^j^g ^^^^ ^^^ adjudge the libellant to be in default, and dismiss the libel, or may compel his answer in the premises, by attachment, or take the subject- matter of the interrogatory pro confesso in favor of the defendant, as the court, in its discretion, shall deem most fit to promote public justice. Decisions « If the libel is evidently evasive and designed not to bring out in the pleadings the real points of the Utigation, instead of clearly stating the case as required by Rule 23, the defendant may require specific charges ^y interrogatories attached to the answer, in order to ascertain and define the issues to be tried. The Mexican Prince, 70 Fed. R. 246- 247. Where the answer denied the facts alleged in the libel as a cause of action, Held, that interrogatories might be propounded to the libellant designed to obtain particulars of the claim sued on, and plaintiff is not entitled to a judgment on the pleadings while such interrogatories are unanswered. The Oregon, 116 Fed. R. 482-483, 53 C. C. A. 650. Where the interrogatories addressed to the libellant attached to an answer or contained therein are wholly unanswered, the libellant is not entitled to judgment on the pleadings. lb. 484. Rules XXXIII, XXXIV] RULES IN ADMIRALTY 665 Where the party interrogated refuses to answer, the court will take the charges in the pleading upon which the interrogatory is founded as confessed. The David Pratt, 1 Ware, 509; Fed. Cases, 3,S97. Each party has a right to require the answer of the other on oath upon interrogatories, touching the matter in issue. Ih. In admiralty causes the practice of examining witnesses at any stage of the suit has always been sanptioned, because otherwise it would often be impossible to obtain the testimony of mariners, and others having no fixed domicile. Mower «. MacGinniss, 112 Fed. B. 377-378, 50 C. C. A. 291. Rule XXXIII Where either the libellant or the defendant is out of the country, or unable, from sickness or Answer under oath, when waived or taken other casualty, to make an answer to under a commission, any interrogatory on oath or solemn affirmation at the proper time, the court may, in its discretion, in furtherance of the due administration of justice, dispense therewith, or may award a commission to take the answer of the defend- ant when and as soon as it may be practicable. Rule XXXIV If any third person shall intervene in any cause of ad- miralty and maritime jurisdiction in intervenor, how may rem for his own interest, and he is en- "'°"'®'°- titled, according to the course of admiralty proceedings, to be heard for his own interest therein, he shall propound the matter in suitable allegations, to which, if admitted by the court, the other party or parties in the suit may be required, by order of the court, to make due answer; and such further proceedings shall be had and decree rendered by the court therein as to law and justice shall appertain. But every such intervener shall be required, upon to give stipulation itt filing his allegations, to give a stipulation, ''°°'^' ^'°" with sureties, to abide by the final decree rendered in the cause, and to pay all such costs and expenses and damages as shall be awarded by the court upon the final decree, whether it is rendered in the original or appellate court. 666 BULES' IN ADMIRALTY [Rule XXXIV Decisions A creditor who has acquired a lien by attachment, or any person claiming an interest in the thing in suit, may intervene and contest in a proceeding in rem. The Mary Ann, 1 Ware, 99; Fed. Cases, 9,195. A mortgagee may intervene to protect his interest. The Old Concord, 1 Brovm's Adm. 270; Fed. Cases, 10,482. In a possessory suit material men cannot intervene to enforce a lien upon the vessel. The Taranto, 1 Spr. 170; Fed. Cases, 13,751. Where there remains in court a sum of money subject to distribution, a party having a lien upon the property out of which the money was made which was legally fixed, may claim distribution, although the original demand was not such as could be sued for in admiralty. Harper V. New Brig, Gilp. 536; Fed. Cases, 6,090. An underwriter who has accepted an abandonment and succeeded to the rights of the original claimant may intervene and control the suit. The Ann C. Pratt, 1 Curt. 340; Fed. Cases, 409. Underwriters as such have no right to intervene in admiralty unless the property has been abandoned to them and accepted by them, so that they have an interest in the thing and not in the cause. The Henry Ewbank, 1 Sumn. 400; Fed. Cases, 6,376. An intervener is one who seeks merely to protect his own interests and have his claim paid out of the property in suit, or seciu'ed, before its delivery to another, and differs from a claimant who demands the pos- session or redelivery of the property in suit. The Two Marys, 12 Fed. R. 152-154. Rule 34 has reference only to those cases where the vessel is still in custody, or where she has been sold and the proceeds paid into court. The Oregon, 158 U. S. 186-210, 39 L. ed. 943. Others than intervening claimants are not entitled to file exceptions to a libel in rem. Florence Cotton Oil Co. v. Alabama H. Co., 128 Fed. R. 915-918. Rule 34 requires the court to pass upon the claim of an intervenor before he is given any standing in court. The Clara A. M'lntyre, 94 Fed. R. 552-556. Where a vessel has been seized by State officers for a violation of law and a libel filed to recover possession, the State officers may appear Rules XXXV, XXXVI] RTTLES IN ADMIRALTY 667 and answer the libel without giving the stipulation of sureties required by Rule 34. 76.561. Insurance companies which have paid the loss may intervene at any time before the final distribution of the fund, to present their claim to an interest in the fund and its estabHshment by decree of the court. Mason ». Marine Ins. Co., 110 Fed. R. 452-455, 49 C. C. A. 106. Where the libel has been answered by an agent of the owners, the owners cannot afterwards raise a new issue by. intervention, which if supported by proof would require the libel to be dismissed, where the original answer admitted the liability but only contested the amount, especially if no notice is given of the fiUng of such intervention, and no copy served on the proctor of Ubellants. The Alexandra, 104 Fed. B. 904-906. In proceedings in rem where the res is in the custody of the law in the enforcement of a lien by one or more creditors, all other creditors may intervene by petition and have their claims allowed, and, if the claims stand in different ranks of privilege, paid according to their priority. The Young Mechanic, 3 Ware, 58; Fed. Cases, 18,182. Rule XXXV The stipulations required by the last preceding rule, or on appeal, or in any other admiralty or stipulations, before whom maritime proceeding, shall be given and ""^ ^^ **''^"" taken in the mianner prescribed by Rule 5 as amended. Rule XXXVI Exceptions may be taken to any libel, allegation, or answer for surplusage, irrelevancy, im- Exceptions, if allowed, . , , J -t ,,„„„ matter to be expunged; pertmence, or scandal; and ii, upon reference to a master, the exception shall be reported to be so objectionable, and allowed by the court, the matter shall ■ be expunged, at the cost and expense of the party in whose libel or answer the same is found. Decisions Although new matter is sufficient as a defensive allegation or peremp- tory exception to the suit, it is impertinent to blend and confuse it with the response to the particular article or allegation of the libel. The California, 1 Sawy. 463; Fed. Cases, 2,312. 668 RULES IN ADMIRALTY ' [Rule XXXVll When it becomes necessary to insert in an answer some matter which cannot be pertinently introduced as responsive to any allegation in the libel, such matter must be separately stated in an article framed after the manner of an article in the libel. lb. If the answer contains matter not responsive to the allegations and interrogatories of the libel, and not constituting a defense thereto, it is impertinent, but if the answer is responsive to the aMegations, it is not impertinent because the facts set out are not a defense to the suit. lb. Wheii the answer fails to set up a full, expUcit, and distinct response to the allegation or article of the Ubel which it professes to answer, it may be excepted to for insufficiency. lb. An exception on the ground that the libel "does not set forth any facts showing wherein this exceptor failed, neglected, or refused to carry out or perform the terms of said alleged contract" is in fact a demurrer, and if any part of the libel is good, the exception is bad as going to the whole Ubel. Dennis v. Slyfield, 117 Fed. R. 474-479, 54 C. C. A. 520. Objections which are merely formal and do not go to the merits of the action, or merely allege that it is prematurely brought, cannot be taken on the final hearing. Furniss v. The Magoon, Ale. 55; Fed. Cases, 6,163. After personally appearing in a cause and asking for affirmative relief by a cross-bill in a proceeding in rem, the defendants cannot object by exception that the cause is not such as to give admiralty jurisdiction. The Fifeshire, 11 Fed. R. 743. Exceptions to an answer for insufficiency and impertinence cannot be joined in the same exception. The Whistler, 13 Fed. R. 295-296. Where separate claims for salvage and towage services against differ- ent defendants are joined, the objection will be deemed to be waived, if no exceptions are filed before the cause is tried. Merritt & Chapman D. & W. Co. V. Chubb, 113 Fed. R. 173-176, 51 C. C. A. 119. Rule XXXVII In cases of foreign attachment, the garnishee shall be required to answer on oath or solemn Garnishee to answer on affirmation as to the debts, credits, or °*"'' effects of the defendant in his hands, and to such interroga- Hule XXXVli] RULES IN ADMIRALTf 669 tories touching the same as may be propounded by the Ubellant; and if he shall refuse or neglect Refuaing, may be ar- so to' do, the court may award compul- "^**'^' sory process in personam against him. If he admits any debts, credits, or effects, the same shall be held in his hands, liable to answer the exigency of the suit. Decisions Where a defendant has concealed himself or absconded, the process of attachment or garnishment may issue. Manro v. The Almeida, 10 Wheat. 473-492, 6 L. ed. 369. The goods themselves if accessible may be attached, or the goods and credits in the hands of a third person may be attached by notice. lb. 492. The garnishee has a right to put in an answer. If the garnishee makes default the court requires some evidence to sustain the claim that he has debts or credits of the principal in his hands; but if the libellant without disclosure can upon default show that the garnishee holds debts, effects, or credits of the principal in his hands, he may have execution of them. Shorey ». Reynolds, 1 Spr- 418; Fed. Cases, 12,807. After default the garnishee has no right to make answer that he had not when summoned debts, effects, or credits of the principal, and thereby discharge himself. lb. After default the hbellant may have compulsory process against the garnishee to compel an answer. lb. By the former practice the libeUant before answer under oath, might take upon himself the burden of proving assets to be in the hands of the garnishee, and that issue was tried without any answer. Rule 37 now makes it the absolute right and imperative duty of the garnishee to answer, so that the libellant now has no right to contest the answer of the garnishee. 76. On default of the garnishee the libellant may have process to compel him to answer. McDonald v. Reynolds, 21 Law Hep. 157; Fed. Cases, 8,765. The Ubellant is not entitled to execution in personam against the garnishee. lb. Compulsory process wiU only issue to compel a garnishee to answer. 76. The answer of a garnishee is not conclusive as between two attaching creditors in a proceeding to try title to the fund in court. Dent v. Radman, 1 Fed. B. 882-888. 670 fttJLES m ADMIRAL1*Y [Rule XXXVIII In disposing of a fund paid into the registry of a court, proof will be required of the right of the claimant or claimants. lb. Rule XXXVIII In cases of mariners' wages, or bottomry, or salvage, or Property, etc., in hands other proceeding in rem, where freight brought' ■mS)"^court. or other procceds of property are attached to or are boimd by the suit, which are in the hands or pos- session of any person, the court may, upon due application, by petition of the party interested, require the party charged with the possession thereof to appear and show cause why the same should not be brought into court to answer the exigency of the suit; and if no sufficient catise be shown, the court may order the same to be brought into court to answer the exigency of the suit, and upon failure of the party to comply with the order, may award an attachment, or other compulsive process, to compel obedience thereto. Decisions Where a maritime lien exists and attaches upon proceeds, an ad- miralty court exerts its jurisdiction over them by way of monition to the parties holding the proceeds. Sheppard v. Taylor, 5 Pet. 675-677, 8 L. ed. 269. The proper process in the first instance against a person not a party to the cause who has in his possession properties subject to the suit is a monition and not an execution. On the return of the monition the party may appear and justify himself, and bring all the matters before the court to be determined on the merits. The Gran Para, IQ Wheat. 497-500, 6 L. ed. 375. The proper remedy in admiralty for a party holding a lien on freight is a libel against the freight. It is not necessary to make an assignor a party. The assignee may sue in his own name. American Steel Barge Co. V. Chesapeake & Ohio C. A. Co., lUFed. R. 669-674; 53 C. C.A. 301. The appropriate primary process is a monition to the holder of the bill of lading or owners of the cargo, requiring them to pay the freight into court. lb. 674. Rule 38 does not justify any proceeding against the cargo until after an order to pay the freight into court, unless in peculiar cases. 76. 675. Money not strictly the proceeds of the cargo but deposited by each consignee to cover the value of the cargo delivered but Uable for con- Rule XXXIX] RULES IN ADMIRALTY 671 tribution for salvage, may be treated as a substitute for the cargo de- livered and be required to be brought into court to be subject to a libel against the cargo for salvage. The Queen of the Pacific, 18 Fed. B. 700-702. Where a cargo is arrested in admiralty proceedings against the freight, the owner of the cargo or consignee should pay into the registry of the court the freight admitted to be due. He cannot be compelled to give bail for the value of the cargo, and ought not to be allowed to give se- curity for the freight under ordinary circumstances, but should pay the same into the registry and file his claim, and set up his right by answer. The Freight Money of the Monadnock, 5 Ben. Ad. 357; Fed. Cases, 9,704. ■ The paramount lien of seamen for wages will be enforced in admiralty upon freight money, although such money has been attached by the sheriff on proceedings in a State court. The Sailor Prince, 1 Ben. Ad. 234; Fed. Cases, 12,218. That the consignee was garnisheed in a State court for the amount of the freight is no defense to a petition which seeks to bring the freighj in admiralty, to answer in a suit to enforce a paramount maritime hen. The Caroline, 1 Lowell, 173; Fed. Cases, 2,419. Rule XXXIX If, in any admiralty suit, the libellant shall not appear and prosecute his suit, according to the Libellant not appearing, course and orders of the court, he shall ubei to be dismiased. be deemed in default and contumacy; and the court may, upon the application of the defendant, pronounce the suit to be deserted, and the same may be dismissed with costs. Decisions A motion to open a default is discretionary under Rule 39 and is not reviewable on appeal. Cape Fear Towing & T. Co. v. Pearsall, 90 Fed. B. 636-537. Since the claimant has an equal right under the rule to move the case, the libellant's delay in bringing the cause to a hearing after issue joined is not ground for its dismissal. The Mariel, 6 Fed. B. 831-832. Where a suit is dismissed because the cause of action is not within the admiralty jurisdiction of the court, no costs can be g,warded. Re- liance Lumber Co.f . Rothschilds, 127 Fed. R. 745-749. 672 RULES IN ADMIEALTY [Rule XL Rule XL The court may, in its discretion, upon the motion of the Decree against a defend- defendant and the payment of costs, ant, when may be re- . i i i • -j • i • i soinded. rescind the decree m any suit m which, on account of his contumacy and default, the matter of the Ubel shall have been decreed against him, and grant a re- hearing thereof at any time within ten days after the decree has been entered, the defendant submitting to such further orders and terms in the premises as the court may direct. Decisions A rehearing in admiralty cannot be had after the term at which the decree was made. Hogg v. Pennsylvania Annex No. 3, 38 Fed. R. 620- 621; The New England, 3 Sumn. 495; Fed. Cases, 10,151. Contra. An admiralty court has power to review its decree after the term at which the decree waa passed. Janvrin v. Smith, 1 Spr. 13; Fed. Cases, 7,220. A decree in admiralty is deemed to be enrolled at the term at which it is made. The New England, 3 Sumn. 495. A libel in the nature of a bill of review in equity will lie after a final decree under similar circumstances as in equity. 76. To set aside a decree pro confesso the respondent must satisfactorily account for his laches and present by answer or affidavit a good defense. Scott V. The Propeller Young America, 1 Newb. Ad. 107; Fed. Cases, 12,550. A court of admiralty will entertain a hbel for review filed after the term has passed at which the decree complained of was rendered and after the decree has been executed, where actual fraud is charged, and a libellant without fault is otherwise without remedy. Car Company V. Hopkins, 4 Biss. 51; Fed. Cases, 10,334. Where a cause was not tried until eight years after filing the Ubel, and in the meantime the claimant became insolvent and died, and the surety upon his bond had reason to suppose his hability extinguished and knew nothing of the decree rendered until after the expiration of time for appeal, a review of the decree after the term at which it was rendered will be allowed, especially where the testimony does not sup- port the libellant's claim. Jackson v. Munks, 58 Fed. R. 696-600; affirmed, 66 Fed. R. 571. The rule that a cause may not be reheard after the term at which it Rule XL] RULES IN ADMIRALTY 673 was decided except upon a showing of fraud applies only to direct proceedings in the same cause, and not to an original suit. lb. 599. The coiuii has no general power after the expiration of the term to set aside a final decree on the grounds of oversight or mistake. The Illinois, 1 Brovm's Adm. 13; Fed. Cases, 7,003. The time limited in Rule 40 is binding upon the court when once the period prescribed by the rule has passed, though it might be extended on application beforehand. lb. Where a defatilt has been taken, the summary jiu-isdiction to rehear is limited to ten days, irrespective of the terms of court. Snow v. Ed- wards, 2 Lowell, 273; Fed. Cases, 13,145. Although the term has passed in which the decree was rendered and after ten days in defaulted actions, the court has power to entertain a libel of review. lb. A default irregularly taken may be waived by defendant's subsequent appearance before the commissioners without objection. Gaines v. Travis, 1 Abb. Ad. 297; Fed. Cases, 5,179. If the rules requiring notice have not been complied with, it is good ground for opening the decree and letting a party in to defend, but the decree is valid until set aside or reversed. Daly v. Doe, 3 Fed. B. 903- 913. A motion in the trial court for a rehearing on the ground of newly- discovered evidence will be denied where the parties are entitled as a matter of right to a new trial on appeal. Mainwaring v. Bark Carrie Delap, 1 Fed. R. 880-881. A bill of review in an admiralty court is permitted in the absence of other remedy. Such bill of review may be filed to review a decree of an admiralty court after the term at which it was enrolled. It lies where in a suit in rem or in personam property has been disposed of without personal notice to the owner, and also where there has been fraud in the proceedings in the original suit, and where there has been fraud or misconduct by the purchaser, or in the sale. No usual limit of time, or other technical limitations should embarrass the court in detecting and correcting fraudulent proceedings in obtaining its decree. The Columbia, 100 Fed. R. 890-892. An application for a rehearing in the appellate court made after the term when the final decree was entered comes too late. The Comfort, 32 Fed. is. 327-328. 43 674 RULES IN ADMIRALTY [Rule XLI Rule XLI All sales of property under any decree of admiralty shall Sales to be by marshal, be made by the marshal or his deputy, proceeds to be paid into • j i_ j_i registry. or Other proper ofljcer assigned by the court, where the marshal is a party in interest, in pursuance of the orders of the court; and the proceeds thereof, when sold, shall be forthwith paid into the registry of the court by the officer making the sale, to be disposed of by the court according to law. Decisions It is the duty of the marshal to bring the proceeds of sales into court with his regular account. The Avery, 2 Gal. 308; Fed. Cases, 671. Where the decree directs the officer to make sale and bring the pro- ceeds into court, if the sale is made on credit and security given, the creditor may require that the security shall be brought into court. Wallace v. Thornton, 2 Brock. 422; Fed. Cases, 17,111. The court has power to make sale of property in the custody of the collector of customs to secure the payment of duty in a libel to recover freight. Such sale being subject to the claims of the United States. Two Hundred and Fifty Tons of Salt, etc., 5 Fed. R. 216-220. A sale by proceedings in rem in admiralty in a court of competent jurisdiction extinguishes all hens upon the property sold, and vests a clear title in the purchaser. The Trenton, 4 Fed. R. 657-659. Such sales may be impeached by showing that no jurisdiction of the subject-matter existed, that the sale was made by a fraudulent collusion, or was contrary to the principles of justice. lb. 661. • The proceedings must be both fraudulent and collusive and the pur- chaser must be a party to the fraud. The Garland, 16 Fed. R. 283-286. Where upon a sale had the purchaser obtains possession of the prop- erty without paying the price the court will enforce a redehvery of the property or the payment of the purchase money by summary process. The Phcebe, 1 Ware, 368; Fed. Cases, 11,066. On a libel for freight where the claimant alleges a tender and pays into the registry of the court the amount tendered the libellant may have leave to take the money out of court, and proceed tor the balance alleged to be due. Higbee v. Ninety-Six Hundred Cases of Tomatoes, 59 Fed. R. 783-784. RuleXLI] RULES IN ADMIRALTY 675 Under Rule 41 the court has jurisdiction to determine between claimants who have a right to or a lien on the res. Controversies be- tween claimants involving breaches of contract or even equities, but which do not amount to a specific right in or to the res are not within its jurisdiction. Miller v. The Peerless, 45 Fed. B. 491^93. In a case where the mortgagor had given the mortgagee an absolute bill of sale conditioned to pay certain indebtedness, upon a sale of the vessel under maritime liens, Held, that the right of the mortgagor was in no sense a right to the res in respect of the surplus. 76. 493. A court of admiralty has no jurisdiction to entertain an action to foreclose a mortgage; but when the court has a fund to dispose of, the proceeds of mortgaged property, it may entertain claims based on mortgages, to pass upon their vaUdity and priority, and order such to be satisfied out of the funds in the registry of the court, subject to the paramount right of maritime liens and superior liens and claims. The Katy O'Neil, 65 Fed. R. 111-113. Where petitioner has a (maritime) lien granted by a State law, such lien attaches to a surplus in the registry of the court, proceeds of a sale, and as between the Uenor and owner he is entitled to be paid out of the proceeds. Topfer v. Schooner Mary Zephyr, 2 Fed. B. 824-826. Where funds are in the registry of the court upon the sale of a vessel in a possessory suit parties holding claims for repairs and supplies furnished the vessel, who intervene, should be paid out of the proceeds in the registry of the court. The Templar, 59 Fed. R. 203-208. As against the owner the court has no power to distribute the pro- ceeds of a sale in payment of claims not maritime liens. The Lydia A. Harvey, 84 Fed. B. 1000-1001. Where the party could not have proceeded against the property in rem he is not entitled to recover a portion of the proceeds in a case where the owner appears and opposes the appUcation. The Lottawanna, 20 Wall. 201-224, 22 L. ed. 259. The order in which liens are paid usually is: First, The costs of sale and of the keep or storage; second, seamen's wages, unless subject to prior claims for salvage; third, claims for towage and necessaries fur- nished in a foreign port; fourth, claims for supplies and materials fur- nished at the home port, entitled to a lien under the State law; and, fifth, mortgages. The City of Tawas, 3 Fed. R. 170-172. Maritime hens are entitled to be paid in preference to those under a State law. /6. 174. The court may require claimant to prove his right to any part of a fund in court. Dent v. Radman, 1 Fed. B. 882-891. 676 EXILES IN ADMIRALTY [Rule XLII When several torts are of the same character, each arising out of negligence and each claimant arrests the vessel at the same time to respond, there is no principle of maritime law which requires an elder lienor not guilty of laches, and not having committed any waiver or abandonment to have his claim postponed to that of a younger Uenor. The Frank D. Fowler, 17 Fed. R. 653-656. Under maritime law priority in filing the Kbel does not give priority to the debt amoug creditors of the same rank and equal merit who intervene and prove their debts. The Lady Boone, 21 Fed. B. 731-732. In the distribution of surplus moneys the court can only take cogni- zance of the hen upon the fimds, that is, some vested legal or equitable interest in the res from which the fund was derived, as distinct from the claims of general creditors. The Advance, 63 Fed. R. 704r-706. A creditor at large, or a judgment creditor merely, has no such interest and cannot be heard to make a claim to the fund as against the legal owner. 76. 706. Claims for insurance premiums and moneys advanced for the operat- ing expenses, and to disburse a ship at foreign ports, are not maritime liens and have no priority as against a mortgagee. The AUianca, 65 Fed. R. 245. The principle appUed to railway companies in the hands of a receiver, giving preference to certain wages and supply debts over a recorded mortgage, is not applicable to proceedings in admiralty. 76. 246. Upon an appUcation to have the remnants remaining in the registry of court paid over to the receiver of an insolvent corporation, owner of the vessel, Held, such proceeds of sale after paying maritime liens would be turned over to such receiver rather than paid "pTo rata upon claims filed and found not maritime Hens. The Liberty, 119 Fed. R. 539. The claims of creditors before the court when a decree is made or when under the rules the parties before the court are entitled to a decree, take precedence of claims of prior dignity filed thereafter. The Sealark, 34 Fed. R. 52-53. It is no objection to a resale of a vessel where a material increase has been offered, that the purchaser at the first sale has paid into court the sum bid and gone to expense by reason of such purchase. The Sue, 137 Fed. R. ,133-134. Rule XLII All moneys paid into the registry of the court shall be Moneys to be deposited, deposited in some bank designated by and how drawn. ^j^^ ^^^^^^ ^^^ gj^^^jj j^^ g^ deposited in the name of the court, and shall not be drawn out, except RuleXLIII] RULES IN ADMIRALTY 677 by a check or checks signed by a judge of the court and countersigned by the clerk, stating on whose account and for whose use it is drawn, and in what suit and out of what fund in particular it is paid. The clerk shall keep a regular book, containing a memorandum and copy of all the checks so drawn and the date thereof. Decisions Prior to distribution imder final decree, if any part of the sum in the registry of the court is withdrawn without authority, the court by sum- mary proceedings may compel its restitution and any person having an interest in such proceeds in the registry of the court is entitled to inter- vene by summary proceedings. Osborne v. United States, 91 U. S. 474-479, 23 L. ed. 388. Where the court upon final decree has ordered the payment of a sum, proceeds of a Ubelled vessel, and the clerk has drawn a check for such amount, but before it is mailed an execution in the State comi is served upon the clerk attaching aU debts and credits of the payee in the check. Held, that the clerk holds the check in an ofiicial capacity, and that the fund is in the custody of the court and not subject to attachment or garnishment under process of another court. In re Forsyth, 78 Fed. B. 296-302. Rule XLIII Any person having an interest in any proceeds in the registry of the court shall have a right, Intervenor tor proceeds, by petition and summary proceeding, '""' to come m. to intervene pro interesse sva) for delivery thereof to him; and upon due notice to the adverse parties, if any, the court shall and may proceed summarily to hear and decide thereon, and to decree therein according to law Effect if claim dis- and justice. And if such petition or ™°°°'*" claim shall be deserted, or, upon a hearing, be dismissed, the court may, in its discretion, award costs against the petitioner in favor of the adverse party. Decisions Money in the registry of the court decreed to the Ubellant will not be appropriated to such Ubellant's debts upon the application of a creditor. Brackett v. The Hercules, Qilp. 184; Fed. Cases, 1,762. Where there is a fund in court, parties entitled to such surplus, whether by State or Federal laws, and whether their claims are maritime -678 RULES IN ADMIRALTY [Rule XLIII or not, may intervene and secure a distribution. The Skylark, 2 Biss. 251; Fed. Cases, 12,928. A mortgagee cannot file a libel against the proceeds, but should apply by petition for a distributive share, if he has failed to appear as claimant to the hbel filed against the mortgaged vessel. Schuchardt v. The Ship Angelique, 19 How. 239-241, 15 L. ed. 625. The mortgage is subordinate to maritime hens given either by State or under maritime law. Its only standing in admiralty is against the balance in the registry by petition under Rule 43. The AUce Getty, 2 Flip. 18; Fed. Cases, 193. The priority of a recorded mortgage under sec. 4,192, Rev. Stats., Act of July 29, 1850 (U. S. Comp. Stats. 1901, p. 2837), announced in the cases of The Grace Greenwood, 2 Biss. 131; Fed. Cases, 5,652 and The Sky- lark, 4 Biss. 388; Fed. Cases, 12,929, declared not to exist, but that the lien for supplies and repairs given by a State statute takes precedence of such recorded mortgage. The J. E. Rumbell, 148 U. S. 1-19, 37 L. ed. 345. Seamen and salvors are alone entitled to be paid before all Ubels and petitions for distribution of proceeds are heard and determined. The Fanny, 2 Low. 508; Fed. Cases, 4,638. A salvor cannot proceed in admiralty to secure a contribution of a fund in court already decreed to be paid another salvor. Sheldrake v. The Chatfield, 52 Fed. 'R. 495-500. Rule 43 does not allow one claiming no interest in a ship libelled to claim by petition a share of what the court may decree to the libellants, and by the summary methods of admiralty litigate a claim between petitioner and libellant. 76. 500. The court has power to distribute the surplus proceeds to all those who come in by petition under Rule 43 in the order of their several priorities, no matter how their claims originated, if they have a specific lien on, or vested right in, such surplus. The Lottawanna, 21 Wall. 558-582, 22 L. ed. 654. Any person having a specific lien on, or vested right in, the proceeds may intervene by petition, although his claim requires the settlement of partnership accounts. The L. B. Goldsmith, Newb. 123; Fed. Cases, 8,152. Where a vessel has been seized under a warrant of arrest and a notice given as required by Rule 9, upon a libel filed by a material man, other material men may intervene and proceed without further advertisement to enforce their liens, as the jurisdiction of the court is complete by the possession of the res first taken. The Julia, 57 Fed. R. 233-236. RuleXLIV] ETJLES IN ADMIKALTY 679 Where a vessel has been libelled and sold in a suit for salvage and pro- ceeds brought into court, Held, that the owner could not be permitted under Rule 43 to intervene for a delivery of the fund upon filing bond and stipulation before any proceedings for distribution of the fund were taken under Rules 57 and 58. Rule 43 refers to cases where a person claims such an interest in the proceeds in the registry of the court that entitles him to recover the whole or fiart thereof rightfully belonging to him without the necessity of further adjudication than that authorized and required by the rule. The Chief, 142 Fed. R. 349-353, 73 C. C A 459. While admiralty will distribute a fund among all claimants of equal degree without reference to priority of proceedings to enforce, yet where one has contributed nothing to establish the liability of a vessel for a collision and taken no part in a protracted Utigation to that end he will not be allowed to share in the proceeds of the sale of such vessel until the claim of the party prosecuting the suit has been satisfied in fuU. Wood- worth V. Insurance Company, 5 Wall. 87-89, 18 L. ed. 517. Rule XLIV In cases where the court shall deem it expedient or neces- sary for the purposes of justice, the court when court may refer ... matters to commis- may refer any matters arismg m the sionera. progress of the suit to one or more commissioners, to be appointed by the court, to hear the parties and make report thereon. And such commissioner or com- And powers of auoh. missioners shall have and possess all the powers in the premises which are usually given to or exercised by masters in chancery on reference to them, including the power to administer oaths to and to examine the parties and witnesses touching the premises. Decisions Where the validity of a bottomry bond is contested the court will order a reference to ascertain its particulars at the time and occasion upon which the advances were made by the obUgees. Furniss v. Magoon, Ale. 55; Fed. Cases, 5,163. After the court has determined the main questions in a controversy, it is proper to refer a case to a commissioner to take proofs of the nature, extent, and value of the services and credits claimed. Shaw v. Collyer, 18 How. Pr. 238; Fed. Cases, 12,718. It is unnecessary to state the special reason for a reference to the clerk to take testimony as a commissioner. Such reference may be made 680 RULES IN ADMIRALTY [Rule XLIV whenever the court deems it necessary or expedient. It is only neces- sary to state a special reason for the appointment of the clerk as a re- ceiver or master. The Wavelet, 25 Fed. R. 733-734. An exception to the commissioner's report goes to the merits of his decision and reaches no further than to bring before the comt for con- sideration the adequacy of the grounds in law or fact upon which the report is founded. The Columbus, 1 Abh. Ad. 37; Fed. Cases, 3,041. The exceptive allegation to a proceeding in a cause has in the civil law the character of a plea. It cannot be employed in admiralty prac- tice to determine the regularity of the acts of an officer of the court not incorporated in and constituting a substantive part of the proceed- ing excepted to. 76. The propriety of the refusal of a commissioner to allow contradictory testimony to be given cannot be raised by an exception to his report. It should be raised by an application to the court before the report is made to direct the commissioner to allow the person to be sworn. The E. C. Scranton, 4 Ben. Adm. 127; Fed. Cases, 4,272. Objection to the admission of evidence before a commissioner cannot be raised by exception to his report. The Transit, 4 Ben. 138; Fed. Cases, 14,138. But see next case. When the commissioner excludes evidence offered by a witness about to go to sea or when the testimony may be lost if not then taken, the correctness of the rulings of a commissioner may be brought before the court for an immediate decision by means of a certificate of the com- missioner as to his ruling. In the absence of such urgency the practice is for the commissioner to proceed to a report, which, with the evidence and his rulings upon objections taken to the admission of evidence, should be brought before the court upon the proper exceptions taken to his conclusions, and to such rulings of the commissioner as were ob- jected to at the time. The Beaver, 8 Ben. 594; Fed. Cases, 1,200. Held, that the case of The Transit, 4 Ben. 138, was not intended to decide that the correctness of the commissioner's rulings upon evidence should not be examined into after the report made. lb. A general exception to the amount found by a commissioner upon a reference is sufficient, where all the evidence taken is attached to the commissioner's report. The Merritt & C. D. & W. Co. v. Morris & C. D. Co., 132 Fed. B. 154-155. Where the cause is referred to a commissioner (for findings of fact and conclusions of law) by written consent of the parties, the same regard must be had for his findings as to those of a master in chancery. In such pase his findings of fact and conclusions of law are to be treated as un^ RuleXLIV] RULES IN ADMIRALTY 681 assailable so far as they depend on conflicting testimony, or upon the credibility of witnesses; though not absolutely conclusive, if there is no testimony to support them. The Elton, 83 Fed. R. 519-521, 31 C. C. A 496. Where there is a conflict of testimony upon a question of fact, the court will adopt the conclusion of the commissioner unless there is a palpable preponderance of evidence against it. Holmes ». Dodge, Abb. Ad. 60; Fed. Cases, 6,637. Where it appears from the commissioner's report that the testimony was in direct conflict and that the commissioner gave credit to one witness and discredited the opposing witness, it not appearing from collateral facta or circumstances that the decision of fact made by the commissioner should be changed, exceptions to his report should be disallowed. 76. The report of a commissioner should stand in respect to exceptions like exceptions to a jury trial, where they should be taken at a time and under circumstances where error can be easily corrected if urged and if not urged will be treated as waived. The Eliza Lines, 114 Fed. R. 307- 313, 52 CCA. 195. Rule 44 contemplates that proceedings before commissioners shaU be under rules which govern masters in chancery in equity proceedings. Equity Rule 83 requires that parties file exceptions to the report of a master within a given time, and if none are presented within that time exceptions are waived and the report stands confirmed. lb. 313. By Rule 44 like powers are conferred upon commissioners acting upon references in admiralty proceedings as are usually exercised by masters in chancery in the equity courts, and their conclusions are given the same force and effect, and will not be disturbed unless it is apparent that there was a clear mistake in the process by which the conclusions were reached. The Cayuga, 59 Fed. R. 483-488, 8 C C A. 188. The powers conferred upon a commissioner in admiralty causes are analogous to those of masters in chancery, and his findings upon ques- tions of fact depending upon conflicting testimony or upon the credi- bility of witnesses will not be disturbed unless clearly erroneous. La Bourgogne, 144 Fed. R. 781-783, 75 C C A. 647. The rule that the commissioner's findings upon questions of fact should not be disturbed unless plainly wrong, has little application where but little of the important evidence is taken by the commissioner. Sovereign of the Seas, 139 Fed. R. 812-«15. Findings of fact by a commissioner should be made in distinct para- graphs euccesgively numbered, Exceptions thereto and briefs referring 682 RULES IN ADMIRALTY [Rule XLV thereto should refer to such paragraphs by numbers. The Ataska, 117 Fed. R. 885-893. In an appellate court the decision of the trial court on questions of fact where the judge saw and heard the witnesses testify will have con- trolUng weight, but an appellate court will more readily examine the evidence and reach its own conclusions thereon where the same is taken by an examiner. The Sapho, 94 Eed. B. 545-547, 36 CCA. 395. Where the judge saw none of the witnesses and the controversy in- volves a sharp conflict of evidence the appellate court will examine the entire record. Lazarus v. Barber, 136 Fed. R. 534-535, 69 CCA. 310. In admiralty causes all the testimony should be included. The Dis- trict Court should admit aU the testimony offered because the ultimate judgment must be made by the appellate court, which may have a different opinion in regard to the competency and materiality of testi- mony offered in the District Court; where, therefore, testimony ten- dered at the hearing in open court is objected to it should all be received subject to the objection, unless it is so utterly irrelevant and immaterial that there can be no possibility of any doubt about it. The power of the court to punish with costs useless testimony will ordinarily be a sufficient deterrent to such practice. Minnesota S. S. Co. v. Lehigh Valley Co., 129 Fed. R. 22-30, 63 CCA. 672. Where in an admiralty cause the testimony is heard by the court it should be taken down in writing, so the appellate court may pass upon both the law and facts. If there is no official stenographer, counsel should arrange therefor. Neilson v. Coal, etc., Co., 122 Fed. R. 617-618, 60 CCA. 175. The court has authority to direct the employment of a stenographer in the taking of testimony, and make the expense part of the taxed cqgts, where one of the parties refuses to consent to such employment. The practice is to have the parties stipulate for the emplojrment of a stenog- rapher where necessary and the court has failed to make a general or special order. Rogers v. Brown, 136 Fed. R. 813-814. ■Rule XLV All appeals from the District to the Circuit Court must Appeals, when to be be made while the court is sitting, or "*'^°' within such other period as shall be designated by the District Court by its general rules, or by an order specially made in the particular suit; or in case no RuleXLV] RULES IN ADMIRALTY 683 such rule or order be made, then within thirty days from the rendering of the decree. Decisions Held, in the absence of any statute regulating the time for taking appeals, that under the Judiciary Act of 1789 provision was made for appeals from the Circuit Court to the Supreme Court, but no provision made for appeals from the District Courts to the Circuit Courts, except to the next Cu-cuit Court; thus requiring appeals from the District Courts to be made only at the time of the decree or before the adjourn- ment of the court or the term. An appeal three days after the court adjourned sine die not allowed. Norton v. Rich, 3 Mason, 443; Fed. Cases, 10,352. There is no statutory provision to regulate either the mode of appeal from the District to the Circuit Court or the security to be given in order to stay execution on such appeal in admiralty causes. Prior to the act creating the Circuit Court of Appeals, all the statutory provi- sions upon these points were confined to appeals to the Supreme Court. The Brantford City, 32 Fed. B. 324r-325. In prize cases, Held, that an appeal to the Supreme Court from the District Court might be taken within thirty days after the final decree, whenever the purposes of justice required it. Neustra Seflora de Regla, 17 Wall. 29-31, 21 L. ed. 596. Where during the term a petition is filed to have the final decree opened and the petition is referred to a master, the time Umited to take an appeal does not run until the court has acted upon the petition. Brockett v. Brockett, 2 How. 238-241, 11 L. ed. 251. It is not necessary that all the defendants should join in the appeal bond, although all should join in the appeal. lb. 240. Where a decree is entered as of a prior date the rights of the parties in respect to appeal date from the actual entry and filing of the final decree. Rubber Company v. Goodyear, 6 Wall. 153-156, 18 L. ed. 762. In garnishment proceedings in admiralty the first decree ascertaining the liability of the garnishees is interlocutory, and only after a final decree with an award of execution against the funds in their hands, can the garnishees take an appeal. Cushing v. Laird, 107 U. S. 69-76, 27 L. ed. 391. The requirement of a District Court rule that the appeal be in writing IS mere procedure, but if the District Court allow an appeal without writing, it does not affect the jurisdiction of the appellate court. The S. S. Osborne, 105 U. S. 447-450, 26 L. ed. 1065. 684 RULES IN ADMIRALTY [Rule XLV Cross-appeals must be prosecuted as other appeals or they will be dismissed. 76. 451. If the cross-libel is dismissed, a review of the decree of dismissal can- not be had until the original cause is determined; an order dismissing a cross-libel for want of jurisdiction is not a final decree within the rule that appeals lie only from final decrees. Bowker v. United States, 186 17. S. 135-142, 46 L. ed. 1090. Appellants are not obligated to pay the sum awarded against them on appeal until the time when execution can issue on the decree, which is not until the expiration of ten days after the rendering of the decree, where the final decree provides for the award of execution, unless an appeal be taken within ten days after the entry of the decree. The New Orleans, 17 Blatchf. 216; Fed. Cases, 10,181. Upon an appeal from the District to the Circuit Court, Held, that an appeal in admiralty has the effect to supersede and vacate the decree from which it is taken and that an entirely new trial with other testi- imony and other pleadings if necessary or asked for in the appellate court is contemplated, and that the decree made in the Circuit Court is to be enforced by that court where the record remains, and the District Court has nothing further to do with the cause. The Lucille, 19 WaU. 73-74, 22 L. ed. 64. An appellant who recovered judgment below cannot take a nonsuit in the appellate court after the case is entered if the defendant objects. Where the appellant in an admiralty suit declines to prosecute his suit further, the court should give judgment upon the merits. Folger v. The Robert Shaw, 2 Woodb. & M. 531; Fed. Cases, 4,899. A bill of exceptions Held not necessary to give the Supreme Court jurisdiction of an appeal from the Circuit Court, in admiralty, under the provisions of the Act of Feb. 16, 1876, 18 Stat. L. 315. The S. C. Tryon, 105 U. S. 267-270. The findings which the statute requires must be stated by the court and become part of the record, and errors of law arising on them need not be presented by exceptions. lb. 270. Even after appeal a new allegation may be filed where cause is shown, and the appellate court will remand the cause to the Circuit Court to allow it to be done. The Adelane, 9 Cranch, 244, 3 L. ed. 720. After aft appeal from the District to the Circuit Court was taken. Held a motion to amend the pleadings so as to include a claim for damages growing out of the original cause of action, but rejected in the District Court because not specified in the pleadings, should be allowed. The Charles Morgan, 115 U. S. 69-75, 29 L. ed. 316. RuleXLV] RTJLES IN ADMIRALTY 685 The case of the North Carolina, 15 Pet. 40, holding that a libel could not be amended after an appeal so as to bring in a new claim for dam- ages, was decided before the present admiralty rules were adopted. 76 76. Upon an application in the Supreme Court for leave to amend the pleadings and introduce new testimony, that court refused to determine whether, since the Act of Feb. 16, 1875, new testimony could be taken in the Supreme Court after an appeal in admiralty, or amendments to the pleading be allowed under any circumstances. The Merchants' Ins. Co. V. Allen, 121 U. S. 67-73, 30 L. ed. 858. The findings of fact in an admiralty suit have the same effect on ap- peal under the Act of Feb. 16, 1875, as a special verdict in an action at law. The Maggie J. Smith, 123 U. S. 349-352, 31 L. ed. 175. Construing the Act of Feb. 16, 1875, it is settled: (1) That the facts found by the court below are conclusive; that the bill of exceptions cannot be used to bring up the evidence for a review of these findings; that the only r ulin gs upon which the Supreme Court are authorized to pass are such as might have been presented by a bill of exceptions pre- pared as in actions at law, and that the findings have practically the same effect as the special verdict of the jury; (2) that it is only the ultimate facts which the court is bound to find and the Supreme Court will not take notice of a refusal to find the mere incidental facts, which amount only to evidence on which the ultimate fact was obtained; (3) if the com't below neglects or refuses to make a finding as to the existence of the material fact established by uncontradicted evidence, or finds such a fact when not supported by any evidence, and an exception be taken, the question may be brought up for review on that particular. The City of New York, 147 U. S. 72-76, 37 L. ed. 84. Under the Act of Feb. 16, 1875, the Circuit Court is bound to pass upon and find every material and ultimate fact necessary to a proper determination of the question of law, and in case of refusal to make such finding an exception may be taken thereto which will be considered upon appeal. The E. A. Packer, 140 17. S. 360-364, 35 L. ed. 453. Where, in the opinion of the appellate court, the findmgs of the trial court are ambiguous, contradictory or incomplete or fail to establish a satisfactory basis for a decision, they will not be followed. lb. 364. The Supreme Court has jurisdiction of appeals from aU final sentences and decrees in prize causes without regard of the amount in suit and without any certificate of the district judge as to the importance of the particular case. The Paquette Habana, 175 U. S. 677-686, 44 L. ed. 320. By the Act of Mar. 3, 1891, estabUshing the Ckcuit Court of Appeals, 686 RULES IN ADMIRALTY [Rule XLV the entire appellate jurisdiction from the Circuit and District Courts of the United States was distributed according to the scheme of that act between the Supreme Court and the Circuit Court of Appeals by designating the class of cases of which each of these courts were to have final jurisdiction. Ih. 681. Note.— But see United States v. Dalcour, 203 U. S. 408, 51 L. ed. 248, Oct. Term, 1906, in which the court announced that appeals might still be taken to the Supreme Court direct from the District Court in a certain other class of cases; holding the words in sec. 6 of the act, "un- less otherwise provided by law," apphed to previous legislation, and not as it had theretofore held to contemporaneous and subsequent enact- ments. Held, that sec. 631, Rev. Stats. {JJ. S. Comp. Stats. 1901, p. 618), was not repealed by the Act of Mar. 3, 1891, and that the Circuit Court of Appeals has jurisdiction of causes in admiralty where the matter in dispute is less than the sum of fifty dollars ($50.00). No. American Trade & Trans. Co. v. Smith, 93 Fed. R. 7-9, 35 CCA. 183. Where a libel is ordered to stand dismissed if not amended within ten days, the prosecution of an appeal within that time is an election to waive the rights to amend, and the decree of dismissal takes place immediately. The Three Friends, 166 U. S. 1-49, 41 L. ed. 897. An admiralty case may be reviewed by certiorari from the Supreme Court to the Circuit Court of Appeals, as well as by a direct appeal from the District or Circuit Courts, in the cases where such appeal is allowed directly. 76. The writ of certiorari to review causes pending in the Circuit Court of Appeals before final action by that court will only be issued under extraordinary circumstances. lb. 49. Upon a writ of certiorari from the Supreme Court to the Circuit Court of Appeals, the entire case is open for examination where the judgment of the trial court has been reversed, the case remanded for assessment of damages, and after assessment and decree a second appeal to the Court of Appeals upon the question of damages. Panama Railroad v. Napier Shipping Co., 166 U. S. 280-284, 41 L. ed. 1004. The decree of the District Court dismissing a libel upon motion of the claimant because no evidence had been submitted is not a final decree from which an appeal will lie. The Delaware, 33 Fed. R. 589. In such case the remedy of the party, if he fails to procure the order of dismissal to be set aside and the cause to be reinstated, is to bring a fresh suit; the decree of dismissal is not conclusive between the parties. The Merchant, 4 Blatchf. 105; Fed. Cases, 9,436. Rule XL V] fttFLES IN ADMIRALTY 687 A decree establishing a maritime lien and awarding libellants a defi- nite sum and directing that the vessel be sold and the proceeds paid into the registry of the court, is a final decree, upon which an appeal may be had. The fact that the proceeds are directed to abide the further order of the court, does not affect the finaUty of the decree. The Eugene 87 fed. 72. 1001-1002, 37 C. C. A. 345. Where no time is fixed by the general rule or special order of the trial court, within which the bond may be given, the appellant has thirty days under Rule 45 from the rendition of the decree to perfect his ap- peal. The Canary, No. 2, 22 Fed. R. 536. Where an appeal has been taken by petition and citation and re- spondent has been served with notice and has appeared, the appeal has a standing irrespective of the bond, and where such respondent has participated in taking evidence in the appellate court, the appeal will not be dismissed because no bond or an irregular bond has been given. The Natchez, 27 Fed. R. 309-310. Whether the Circuit Court had power to allow an amendment in an appeal process when the statement of the title of the action and parties thereto was defective, considered doubtful but not decided. 76. 310. Upon a judgment against a defendant and sureties, the defendant alone sued out a writ of error without joining the sureties and the appellate court dismissed the writ for the nonjoinder. Held, that the judgment of dismissal could be rescinded and the writ amended by inserting the names of all the judgment defendants. Coasting Co. v. Tolson, 136 U. S. 572-578, 34 L. ed. 539. On the authority of the above case. Held, that the Court of Appeals upon proper petition filed in time should allow the sureties on a bond given for the release of a vessel to be made parties appellant. The City of Naples, 69 Fed. R. 794-795, 16 C. C. A. 421. The time prescribed for appeals in Rule 45 is altered by the time given in sec. 11 of the Act of Mar. 3, 1891, authorizing appeals to be taken within six months. Ih. 795. Sureties on a stipulation entered into under sec. 941, Rev. Stats. (U. S. Comp. Stats. 1901, p. 692), and Rule 11 are not parties to the suit in the sense that requires them to be joined in an appeal by the claimants whose sureties they are, unless upon the record it appears that some question arises touching the obligation of the sureties, or involving the terms of the stipulation bond; if any such question has been made, the sureties will have a right to be heard and take an appeal on any decree affecting their liability, otherwise they are not proper parties. The New York, 104 Fed. R. 561-563, UC.C.A. 38. A decree entered in the District Court in pursuance of the mandate 688 RULES IN ADMIRALTY [Rule XLV from the Supreme Court may be reviewed on appeal to the Circuit Court of Appeals as to any matters not considered by the Supreme Court and left open by its mandate. 7b. 566. Under sec. 11 of the Act of Mar. 3, 1891, the time allowed for appeals from the Circuit Court to the Court of Appeals is six months. lb. 565. The appellate jurisdiction of the Circuit Court was aboUshed by sec. 4 of the Act of 1891. /6. 565. Upon a decree in favor of several libellants by name for various sums and an appeal bond in favor of one, Held, the appeal was so defective that it gave no jurisdiction, and the court was without power to allow an amendment. The City of Lincoln, 19 Fed. R. 460-461. Upon appeal by the libellant, Held, that the appeal opened the whole case, and that the party could not claim the benefit of the decree below, and, standing secure on that, try his fortune in the appellate court. The Cassius, 41 Fed. R. 367-368. Where there has been a joint judgment against two defendants and one of the defendants fails to join in the appeal and is not served with summons and notice of severance, the appellate coin-t cannot consider the appeal; and the defendant not appealing, cannot after the expira- tion of the time allowed for an appeal appear in the appellate court, waive the service of citation and make himself a party and thus perfect the appeal. Consumers' Cotton Oil Co. v. Niohol, 120 Fed. R. 818-819, 57 C. C. A. 321. Unless all persons who appear to have an interest in the decree are made parties to the appeal or given notice to appear and join in the appeal or otherwise defend their interest, the appeal must be dismissed. Grand Island, etc., Co. v. Sweeney, 95 Fed. R. 396-398, 39 C. C. A. 127. If the decree be joint in form but separable in fact, or law, the mere form will not make it such a joint decree as to require all those nomi- nallv joined in the decree to unite in appellate proceedings. Hanrick v. Patrick, 119 U. S. 156-163, 30 L. ed. 396. The decree will not be dismissed where the transcript is not properly made up and certified because of a general confusion in the minds of all parties and the appellant is not solely to blame. The Ethel, 31 Fed. R. 576. The Courts of Appeals of the First, Second, and Ninth Circuits have expressed the opinion that the Act of Feb. 16, 1875, does not apply to admiralty cases appealed from the District Court to the Court of Ap- peals. The Philadelphian, 60 Fed. R. 423; The Avilla, 48 Fed, R. 684; The State of California, 49 Fed, R. 172, 1 C, C, A. 224. RuleXLVI] RULES IN ADMIRALTY 689 The question is undetermined in the Eighth Circuit. Pioneer Fuel Co. V. McBride, 84 Fed. R. 495-497, 28 CCA. 466. In respect to admiralty cases the Court of Appeals stands in the rela- tion of the Supreme Court to the Circuit Courts, and a cause brought from either the Circuit or District Courts comes into such court for re- view rather than for trial. lb. 497. The Act of Feb. 16, 1875, relieving the Supreme Court from deciding questions of fact in admiralty causes does not apply to the Circuit Court of Appeals. The Coquitlam, 77 Fed. R. 744r-748, 23 C. C A. 438. The appellate court will not reverse a conclusion reached by the District Court on a controverted question of fact where the evidence is contradictory, unless it clearly appears to be contrary to the pre- ponderance of evidence, and this notwithstanding the witness may not have testified in the presence of the court. 76. 748. In the Seventh Circuit it is held upon a review of the cases that the Act of Feb. 16, 1875, c. 77, 18 Stat. 315 (17. S. Comp. Stats. 1901, p. 525) which provided that Circuit Courts in admiralty causes might empanel a jury whose verdict, unless set aside, should on review by the Supreme Court be conclusive, on the issues of fact submitted, has no application to appeals in admiralty from the District Courts to the Circuit Court of Appeals. The Nyack, 118 C C. A. 67-73. Questions of fact and law involved in an admiralty appeal come to the Circuit Court of Appeals substantially as they do to the district judge. He may order a jury trial when either party so requests. Whether the verdict is binding or advisory only not decided. The Circuit Court of Appeals may review the whole case as if it were originally brought there, except that aa a general rule it will not reverse where the evidence is conflicting. lb. Rule XLVI In all cases not provided for by the foregoing rules, the District and Circuit Courts are to regu- courts to regulate fu^ late the practice of the said courts re- ' " practice. spectively, in such manner as they shall deem most expedient for the due administration of justice in suits in admiralty. Decisions Statutes of limitation as such are not enforced in courts of admiralty, but such courts usually proceed in analogy to the statutes unless there is something exceptional in the case. The Southwark, 128 Fed. R. 149- 150. 44 690 BULBS IN ADMIRALTY [Rule XLVI A court of admiralty will not follow the ruling of the Court of Appeals of New York that a foreign corporation cannot plead the State statute of limitations, when it appears the corporation has been continuously subject to the service of process within the State. Davis v. Smokeless Fuel Co., 196 Fed. R. 763, 116 C. C. A. 384. While admiralty courts are not bound by the conformity act, sec. 721, Rev. Stats., (U. S. Comp. Stat. 1901, p. 581), yet they will follow a State statute of limitations by analogy in determining whether a claim is stale. lb. Counsel fees may be allowed tp be taxed in a case where a fund is in court to be distributed, under the doctrine of Trustees v. Greenough, 105 U. S. 635. Where many hbels have been filed by several different proctors the various claims should be consolidated, and one docket fee to eadh proctor is not an unreasonable allowance. The Gordon- Campbell, 131 Fed. R. 963-967. Where a court of admiralty has distribution of a fund arising from the sale of a vessel and the maritime liens have been paid, the holder of a mortgage recorded under sees. 4192 and 4193, Rev. Stats., (U. S. Comp. Stats. 1901, p. 2837), will be allowed to prove his claim and share in the fund according to the priority. lb. 966. While interest is allowed as a matter of right on claims arising out of contract, the allowance of interest in the way of damages in cases of collision and other cases of pure damage, as well as the allowance of costs, is in the discretion of the court. Bethell v. Miller & Rittenhouse Co., 136 Fed. R. 446. The power to require additional security where that previously given has become insufiicient or worthless as also that of abating an exorbitant security, is one of the incidental powers of the court in regulating its practice and proceedings. The City of Hartford, 11 Fed. R. 89-90. Proceedings required to obtain leave to maintain a suit in forma pauperis must conform to the provisions of the Act of July 20, 1892 (27 Stat. L. 252), although the rules of the court make different provi- sion. Donovan v. Salem & P. Nav. Co., 134 Fed. R. 316-317. Where a proceeding in rem is instituted against a vessel and the vessel arrested and released upon the usual bond and surety, and after testi- mony taken the claimants objected to the jurisdiction of the court ap- pearing on the face of the libel, it being apparent that no judgment in personam could be allowed in the cause, the subject-matter of the action being within the jurisdiction of admiralty. Held, that the libel could be amended to set out a cause of action in personam against the owner under the general power possessed by courts of admiralty, unless there RuleXLVI] RULES IN ADMIRALTY 691 existed rules prohibiting remedies in rem and in personam in the same libel, or if the subject-matter of the original libel was without the juris- diction of admiralty. The Monte A., 12 Fed. R. 331-338. Rule 46 recognizes the pre-existmg powers of the court to regulate its practice in admiralty for the furtherance of justice. In collision cases a vessel sued alone is entitled to contribution, or an apportionment of damages against another vessel equally liable as a substantial right, and such contribution may be enforced by further process against the other vessel upon the petition of the one sued; such remedy being expedient, direct, and effectual, and not interfering with the rights of the libellant or imposing on him additional burdens or obligations on the trial, except to subject him to the HabUity of an appeal by more than one defendant. Therefore in collision cases, if a Ubel is filed against one vessel only the court may upon the petition of the vessel sued, award further process in the cause against another vessel to respond for its share of the damage. The Hudson, 15 Fed. B. 162-176. Rule 46 gives the District Courts power to establish the practice of allowing a joinder of proceedings in rem and in personam upon a con- tract of affreightment and process in rem and in personam upon the same Ubel to issue. The Planet Venus, 113 Fed. R. 387-389. In a case not provided for by the admiralty rules of the Supreme Court there is no fixed rule which prevents the joinder in one libel of causes of action in rem and in personam, where such course will promote the cause of justice and conduce to the convenience of the parties and of the court. The Thomas P. Sheldon, 113 Fed. R. 779-784. If successive suits upon the same demand may be maintained in personam and in rem, until satisfaction is obtained, it is whoUy a ques- tion of practice whether the two may be brought concurrently, or whether the second suit wiU not be allowed untU the remedy in the first may be exhausted, to be determined with reference to the convenient administration of justice. The Normandie, 40 Fed. R. 690-591. A Ubel to recover damages for a breach of warranty of seaworthiness and to recover possession of goods deUvered under a charter party for transportation, may be joined in the same Ubel. The Director, 36 Fed. «.335. The practice in admiralty allows the joining of a number of claims of Uke character in one Ubel to avoid a multipUcity of suits. The Queen of the Pacific, 61 Fed. R. 213-214. Thirty-eight separate claims for damages arising out of breach of contract of affreightment by failure to deUver merchandise described in several bills of lading, and for damages for injuries to the same, 692 RULES IN ADMIRALTY [Rule XLVIl claimed to have been occasioned by the negligence of the officers and crew of the vessel Ubelled, were joined in this suit. The mode of proceeding allowed by Rules 12-20 is exclusive of any other in the cases to which they apply, but under Rule 46, in all other cases the court may proceed as may be deemed most expedient foi- the due administration of justice. The Director, 26 Fed. R. 708-711. Under Rule 46, it is the general practice in admiralty procedm-e in a hbel upon a contract of affreightment to proceed against the vessel and the master in one suit. 76. 711. While at law and even in equity a party may not sue A. and B. in one action, alleging that one of the two was hable, he did not know which, in admiralty, where the convenience of the court makes a joinder and trial of the plaintiff's claims at the same time desirable, a libel for a cause of action arising out of the same transaction against two parties in the alternative may be allowed. NeaU v. Curran, 93 Fed. R. 831-832. While the statutes of the United States limiting the habiUty of ship- owners cannot be resorted to to limit the liabiUty of a foreigner, the United States courts of admiralty in a proper case are authorized to apply the rule of the general maritime law to determine the extent of liability of the owners of foreign vessels for collisions on the high sea. Churchill v. The British America, 9 Ben. 516; Fed. Cases, 2,715. Rule XLVII In all suits in personam, where a simple warrant of arrest Arrest, allowed only issuBS and is cxecuted, bail shall be when by state law. ^^^^^ ^^ ^^^ marshal and the court in those cases only in which it is required by the laws of the State where an arrest is made upon similar or analogous process issuing from the State court. And imprisonment for debt, on process issuing out of the Imprisonment for debt admiralty court, is abolished, in all abolished where State ' law prohibits. cascs where, by the laws of the State in which the court is held, imprisonment for debt has been, or shall be hereafter abolished, upon similar or analogous process issuing from a State court. Decisions A surety in a stipulation in admiralty is exempt from a liability of imprisonment on execution in all cases where he would be exempt on Uke process issued from the court of a State in which the District Court is held. The Kentucky, 4 Blatchf. 448; Fed. Cases, 7,717.' Rules XL VIII, XLIX] RULES IN ADMIRALTY 693 If a defendant in the State court is exempt from personal arrest and imprisonment on all process whether mesne or final in cases sounding in contract, then the defendant in admiralty will in all such cases be in like manner exempt. 76, A person is imprisoned for debt who is arrested on mesne as well as final process. The Bremena v. Card, 38 Fed. B. 144. Rev. Stats., sec. 990 {U. S. Comp. Stats. 1901, p. 709), and Rule 47, Clause 2, refer only to imprisonment for debt and do not affect the power of the court to issue a warrant of arrest to compel defendants to respond to a claim for imliquidated damages. The word "debt" in the statute does not include claims for unliquidated damages. Bolden v. Jensen, 69 Fed. R. 745-746. The cases of The Carolina, 14 Fed. R. 424; Chiesa ». Conover, 36 Fed. R. 334; The Bremena, 38 Fed. R. 144, disapproved. In an action for damages for personal injuries, Held, under Rule 47, that the bond given by the defenda,nts, conditioned to render them- selves amenable to the process of the court during the pendency of the action and to such as may be issued to enforce the judgment, was a sufficient bond, and that the parties could not be required to give a bond in the terms prescribed by admiralty Rule 3, where imder the State laws a party arrested in a civil action was entitled to his discharge from arrest upon giving an undertaking in the form used. Stone v. Murphy, 86 Fed. R. 158-160. Rule XLVIII Rule 27 shall not apply to cases where the sum or value in dispute does not exceed $50.00 dollars, QuaUfication of Rule 27. exclusive of costs, unless the District Court shall be of opin- ion that the proceedings prescribed by that rule are neces- sary for the purposes of justice in the case before the court. ' All rules and parts of rules heretofore adopted, incon- sistent with this order, are hereby repealed and annulled. RxjLB XLIX Further proof, taken in a Circuit Court upon an admiralty appeal, shall be by deposition, taken 5^J*„^Sioror' upon %S before some commissioner appointed by examination, unfe^s. a Circuit Court, pursuant to the Acts of Congress in that behalf, or before some officer authorized to take deposi- tions by the • thirtieth section of the Act of Congress of 694 RULES IN ADMIRALTY [Rule XLIX Sept. 24, 1789, upon an oral examination and cross- examination, unless the court in which such appeal shall be pending, or one of the judges thereof, shall, upon motion, allow a commission to issue to take such depositions upon written interrogatories and cross-interrogatories. When Notification, by whom such deposition shall be taken by oral and when to be served, examination, a notification from the magistrate before whom it is to be taken, or from the clerk of the court in which such appeal shall be pending, to the adverse party, to be present at the taking of the same, and to put interrogatories, if he think fit, shall be served on the adverse party or his attorney, allowing time for their at- tendance after being notified not less than twenty-four Time may be extended hours, and, in addition thereto, one day, or diminished. gundays exclusive, for every twenty miles' travel; provided, that the court in which such appeal may be pending, or either of the judges thereof, may, upon motion, increase or diminish the length of notice above required. Decisions Under the Act of Mar. 3, 1891, establishing the Circuit Court of Ap- peals, appeals in admiralty he direct from the District Court to the Court of Appeals. The Havilah, 48 Fed. R. 684-685. A deposition taken subsequent to the appeal wiU not be considered at the hearing where the same witness testified in the District Court concerning the matters referred to in the deposition, and no grounds are shown for introducing such additional proof at the hearing on appeal. The Sirius, 54 Fed. iS. 188-196, 4 C. C. A . 273. New evidence may be introduced in the trial of an admiralty cause in the appellate court if material and competent, and if for any cause other than the fault of the party offering the same, such evidence could not be introduced upon the original trial. Ih. Where it does not appear that a party was prevented from presenting the testimony to the trial court and was then informed as to its materi- ality and notified by the opposite party's motion to dismiss, that such testimony was necessary, he will not be allowed to present in the appel- late court testimony taken on deposition, and if filed, the same will be suppressed. The Lurhne, 67 Fed. B. 898, 5 C. C. A. 165. Where the Court of Appeals has adopted the rule that its practice shall be the same as in the Supreme Court of the United States as far RuIeXLIX] EULES IN. ADMIRALTY 695 as appHcable, Held, that testimony sought to be introduced in the appeUate court must be taken under a commission, which may only issue where the party shows that the testimony is material, and presents a satisfactory excuse for not taking the evidence before the trial court The Bechee Dene, 55 Fed. R. 526-528, 5 CCA. 208. The rules applicable to appeals from the District to the Circuit Court before Mar. 3, 1891, Held, not to govern appeals to the Court of Appeals Ih. 528. Where aU prejudice resulting to the appellee because the testimony was not taken in the court below can be corrected in disposing of the costs of the c%se, and substantial justice requires the admission of testi- mony taken since the appeal, it will be received, although a satisfactory excuse for not taking the testimony in the lower court may not be shown. Red River Line v. Cheatham, 60 Fed. B. 517-520, 9 C C A. 124. Parties should endeavor to procure in the first instance all the testi- mony material to the issues presented by the pleadings. The practice of bolstering up a lost cause by additional testimony ought not to be encouraged. Pacific Steam WhaUng Co. v. Grismore, 117 Fed. R. 68-70 54 CCA. 454. In the Circuit Court of Appeals depositions taken after appeal were suppressed on the ground that it did not appear that the party was prevented from taking such testimony in the trial court except by his own choice; thereupon an application was made in the Supreme Court for leave to file a petition for writ of mandamus to the Court of Appeals directing the judges to receive such depositions and give them the consideration they were entitled to receive according to the practice in admiralty; Held, that the Supreme Court had no power to review the action of the Court of Appeals in suppressing the deposition, such action being an exercise of legitimate jurisdiction. In re Hawkins, 147 {7.S.486,37L.ed.251. Upon this application the question was raised, but not decided, whether new evidence could be taken in the appellate court as a matter of right, or the taking of such evidence could be restricted to appUca- tions made within a time presdribed by a rule of the Court of Appeals. Ih. It must be shown that the evidence sought to be introduced in the appellate court was discovered when it was too late to produce it in the trial court, or that the witnesses had been subpoenaed and failed to ap- pear and could not be reached by attachment, or other satisfactory- excuse given, to entitle a party to examine witnesses on appeal. The Mabey, 10 WaU. 419-420, 19 L. ed. 963. Commissions to take testimony under Rule 13 of the Supreme Court 696 EULES IN ADMIRALTY [Rules L, LI were not of course, but only upon a formal application requiring a rea- sonable excuse for not taking the evidence in the court below. 76. 420. Where proper facts were set up by affidavit upon motion made, the commission was issued under Rule 12 of the Supreme Court to take testimony in a cause pending in that court on appeal, where some of the witnesses were alleged to have received a promise for the payment of a sum of money in the event the case was decided in favor of one of the parties. The Western MetropoUs, 12 Wall. 389, 20 L. ed. 394. Where it is claimed upon a motion for a rehearing that an issue upon a particular question was not raised in the pleadings, and that if such issue had been raised, the claimant had a good defense thereto. Held, that although the claimant had omitted to make showing of his de- fense in the court below, it was still open to him to bring this testimony to the attention of the appellate court under th6 admiralty rules relating to new testimony in that c(jiu^. Kenny v. Blake, 125 Fed. R. 672-675, 60 C. C. A. 362. RXJLE L When oral evidence shall be taken down by the clerk of When evidence taken the District Court, Dursuant to the down may be used on .,.« appeal. abovB-mentioned section of the Act of Congress, and shall be transmitted to the Circuit Court, the same may be used in evidence on the appeal, saving to each party the right to take the depositions of the same witnesses, or either of them, if he should so elect. Decisions Rev. Stats., sec. 698 (U. S. Comp. Stats. 1901, p. 568), ajid admiralty Rules 49 and 60 require that proofs in the coin-t of first instance be in some way reduced to writing in cases intended for review of the facts on appeal in the Circuit Court of Appeals. The Philadelphian, 60 Fed. R. 423-427, 9 CCA. 54. The Act of Feb. 16, 1875, which takes from the Supreme Court the review of findings of fact in admiralty appeals is not applicable to the Circuit Court of Appeals; at least in so far as it receives appeals in ad- iniralty from the District Court. lb. Rule LI When the defendant, in his answer, alleges new facts, Replication not allowed, these shall be Considered as denied by ^er°"coiSdered Ts de- the llbcllant, and no replication, general '^"^' . or special, shall be filed, unless allowed or directed by the court on proper cause shown. But within RuleLII] RULES IN ADMIRALTY 697 such time after the answer is filed as shall be fixed by the District Court, either by general rule or by special order, the Ubellant may amend his libel so ubei may be amended, as to confess and avoid, or explain ''ow and when. or add to, the new matters set forth in the answer; and within such time as may be fixed, in like manner, the defend- ant shall answer such amendments. Decisions Under Rule 51 evidence as to matters put in issue by either the Ubel or answer is properly received. Moore v. The Robilant, 42 Fed. B. 162-166. Under Rule 51 where new facts are alleged by the defendant the Ubel- lant is authorized to amend his Ubel so as to confess and avoid, or ex- plain, or add to new matter set forth in the answer, but he is not re- quired to do so. The Mexican Prince, 70 Fed. R. 246-247. Under the practice prior to the adoption of Rule 51, where the Ubel- lant merely intended to deny the truth of the allegations in the answer, a repUcation was not necessary, but when the allegations in the answer were admitted and intended to be avoided by new facts, the matter in avoidance was required to be put upon the record either by a supple- mental Ubel or by repUcation. Gladding v. Constant, 1 Spr. 73; Fed. Cases, 5,468. Rule LII (1) The clerks of the District Courts shall make up the records to be transmitted to the Circuit contents of records from Courts on appeals, so that the same shall contain the following: (i) The style of the court. lii) The names of the parties, settmg forth the original parties, and those who have become parties before the appeal, if any change has taken place. (iii) If bail was taken, or property was attached or arrested, the process of the arrest or attachment and the service thereof; all bail and stipulations; and, if any sale has been made, the orders, warrants, and reports relating thereto. iiv) The libel, with exhibits annexed thereto. 698 RULES IN ADMIRALTY [Rule LII (v) The pleadings of the defendant, with the exhibits annexed thereto. (ot) The testimony on the part of the libellant, and any exhibits not annexed to the libel. (vii) The testimony on the part of the defendant, and any exhibits not annexed to his pleadings. (viii) Any order of the court to which exception was made. (ix) Any report of an assessor or assessors, if excepted to, with the orders of the court respecting the same, and the exceptions to the report. If the report was not excepted to, only the fact that a reference was made, and so much of the report as shows what results were arrived at by the assessor, are to be stated. (x) The final decree. (xi) The prayer for an appeal, and the action of the District Court thereon; and no reasons of appeal shall be filed or inserted in the transcript. What to omit. The following shall be omitted: (i) The continuances. (ii) All motions, rules, and orders not excepted to which are merely preparatory for trial. (m) The commissions to take depositions, notices there- for, their captions, and certificates of their being sworn to, unless some exception to a deposition in the District Court was founded on some one or more of these; in which case, so much of either of them as may be involved in the excep- tion shall be set out. In all other cases it shall be su^cient to give the name of the witness and to copy the interroga- tories and answers, and to state the name of the commis- sioner, and the place where and the date when the deposition was sworn to; and, in copying all depositions taken on interrogatories, the answer' shall be inserted immediately following the question. (2) The clerk of the District Court shall page the copy of Record to be paged, in- the Tccord thus made up, and shall dexed ami certified. ^^^j^^ ^^ j^^j^^ thereto, and he shall certify the entire document, at the end thereof, under the seal of the court, to be a transcript of the record of the RuleLII] RULES IN ADMIRALTY 699 District Court in- the cause named at the beginning of the copy made up pursuant to this rule; and no other certificate of the record shall be needful or inserted. (3) Hereafter, in making up the record to be transmitted to the Circuit Court on appeal, the clerk omission, on stipuia- of the District Court shall omit there- *""'■ from any of the pleading, testimony, or exhibits which the parties by their proctors shall by written stipulation agree may be omitted; and such stipulation shall be certified up with the record. Decisions It is desirable upon appeals in admiralty that the record be so pre- pared as to show which witnesses were examined in the presence of the district judge and which were not. The Egyptian Prince, 67 Fed. R. 612-615, 14 CCA. 573. Where documentary evidence has been omitted from the record it is competent for the party interested to have the same brought before the appellate court by certiorari, although the record contains the usual clerk's certificate that it contains a full and correct copy of the record. Hoskins v. Fisher, 125 U. S. 217-223, 31 L. ed. 759. Where the assignments of error are good but the transcript was not properly made up and certified through ignorance of the parties, the appeal need not be dismissed, but the appellant may be directed to file a proper transcript within a named time. The Ethel, 31 Fed. B. 576. In admiralty cases a liberal practice in relation to appeals is war- ranted; where, therefore, the record did not aver that the damages suffered by the appellant were in a sum sufficient to give the appellate court jurisdiction and it was suggested that in point of fact the sum in controversy exceeded the jurisdictional amount, appellant was allowed a hmited time to make proof of that fact. The Grace Girdler, 6 Wall. 441-442, 18 L. ed. 790. A rule of the District Court that the clerk should prepare and deUver to the Circuit Court the appeal and record in twenty days. Held, not to prevent the Circuit Court from entertaining the cause if for any reason this was not done. The S. S. Osborne, 105 U. S, 447-450, 26 L. ed. 1065. In view of sees. 698 and 750, Rev. Stats. {U. S. Comp. Stats. 1901, pp. 568, 591), the transcript on appeal need not always contain all the proofs, entries, papers, and proceedings in the court below. Nashua & Lowell R. Cor. v. Boston & Lowell R. Cor., 61 Fed. R. 237-244, 9 CCA. 468. 700 EULES IN ADMIRALTY [Rule LII By Clause 6 of Rule 8, Rules of Supreme Court, the record in causes where the facts have been found in the court below shall omit the testi- mony. See The Adriatic, 103 U. S. 730, 26 L. ed. 605. Under the rules of the Supreme Court and the practice of the Court of Appeals, an appeal in admiralty is a trial de novo, and upon assignments of error covering questions of fact the appellate court will not review the opinion of the trial court unless all the evidence presented in the trial court is contained in the record. Nelson v. White, 83 Fed. R. 215- 218, 32 CCA. 166. The transcript should contain all the testimony taken in the court below in appeals from the District Court to the Circuit Court of Appeals, the Act of Feb. 16, 1875, Umiting the Supreme Court to a review of questions of law arising on the record not being applicable to the Court of Appeals. 76.217. Where the record does not contain all the testimony, the opinion of the trial judge may be reviewed, where the assignments of error present simply questions of law, or where the findings of fact .made by the trial judge in connection with his opinions supply all the material facts necessary for a determination for such questions of law as the assign- ments of such error present. lb. 218. Where in making up the record on appeal, testimony taken at the trial could not be included because it was not reduced to writing, and after motion to dismiss the appeal the evidence of witnesses who had testified for the appellant was taken de novo before a notary public, the proctors for the appellee declining to appear after notice; Held, that the district judge had no authority to certify that such new evidence was the purport of the testimony, nor could the appellate court recog- nize the evidence so taken, but the court remanded the case to the court below with instructions to grant a new trial. The GUde, 72 Fed. B. 200-204, 18 CCA. 504. While a case may be tried de novo in the Circuit Court of Appeals it will be done in extreme cases only. 76. 203. In any case in which all the proofs are not reduced to writing in the District Court and no equivalent is found in the record, the Court of Appeals will decline to try the facts anew. The Philadelphian, 60 Fed. 72. 423, 9 CCA. 54. Where the evidence taken is not reduced to writing in the lower court and there is no rule of that court requiring it to be reduced to writing, it would seem that an appeal upon the merits could only be heard, where the evidence adduced appears by an agreed statement of facts, or where a statement is made by the court of the evidence adduced, or of the facts proved. The Edward H. Blake, 92 Fed. B. 205. RuleLIIl] RULES IN ADMIRALTY 701 The transcript of appeal in admiralty causes should contain all the evidence adduced on both sides. /6. 205. Where the record contains only the judge's notes of the testimony, and a part of the testimony of the witnesses, the case is not presented in such a manner as to allow the appellate court to review the testimony. The Alejandro, 56 Fed. R. 621-623, 6 CCA. 64. Rule LIII Whenever a cross-libel is filed upon any counterclaim, arising out of the same cause of action on oross-ubei, out of for which the original libel was filed, ^^""^ "^"'^ °^ ^''*'°"- the respondents in the cross-libel shall give security in the usual amount and form, to respond in damages, as claimed in said cross-libel, imless the court, on security must be given, cause shown, shall otherwise direct; "°'*^^' and all proceedings upon the original libel shall be stayed until such security shall be given. Decisions Only the original parties can be joined as libellants or respondents in a cross-biU. The Ping-on v. Blethen, 11 Fed. B. 607-612. A cross-libel for salvage on account of services rendered to the injured vessel cannot be brought upon a hbel in rem for damages caused by a collision. CroweUv. The Schooner Theresa Wolf, 4 Fed. B. 162. The words in Rule 53 "The same cause of action" do not mean the same legal demand or legal claim, but mean the same transaction, or subject-matter which has been the cause of the action brought, and include cases where the question in dispute is identical in both, the defense in one suit being the ground of claim in the other. Vianello V. The Credit Lyonnais, 15 Fed. B. 637-638. Where a libel was filed to recover the value of cargo not delivered, and a cross-hbel filed to recover the freight unpaid, HeU, that the ques- tions in dispute were the same, and that respondents in the cross-hbel should be required to give security. lb. Libellants in a cross-libel may require the respondents to give security although the vessel has not been bonded, but is still in custody, and although the original libellant has not given security in that action. The Empresa Maritima k Vapor v. Steam Navigation Co., 16 Fed. B. 502-504. 702 EULES IN ADMIRALTY [Rule LIII The object of Rule 53 is that both parties stand on equal terms as regards security in cases of cross-demands upon the same subject of litigation. Where libellants in a suit in rem exact and obtain security through arrest of the property, the defendants in that suit may hke- wise be entitled to security in a cross-suit in parsonam for a counter- claim in respect to the same subject of litigation. 76. 504. Where a cross-libel is filed the court may stay proceedings in the first suit until an appearance be entered and other steps taken in the second suit. Nichols v. Tremlett, 1 Spr. 361; Fed. Cases, 10,247. The object of Rule 53 is to compel the appearance and the furnishing of security by respondent in a cross-libel in personam in cases where it does not appear proper that he should be relieved from giving such security. The Bristol, 4 Ben. 55; Fed. Cases, 1,889. Where a libel for damages sustained by collision is brought and the claimants in that case afterward filed a libel against the vessel belonging to the original libellants in the first case, for damages sustained by them in the same collision, with no prayer for process in personam against any person. Held, that the court did not obtain jurisdiction of the sec- ond libel without a seizure of the vessel. lb. Rule 53 applies as well to actions in rem as to those in personam. The Toledo, 1 Brown's Adm. 445; Fed. Cases, 14,077. Rule 53 applies to a case where the original libel is in personam and prays for an attachment which is issued and served so that the suit is in effect in rem; its object is not simply to compel appearance, but is to place the parties upon an equality. Lochmore S. S. Co. v. Hagar, 78 Fed. B. 642. Held, to be doubtful whether Rule 53 contemplates a case where the original libel is in personam and consequently no security was required of the respondent in the original cause. Franklin Sugar R. Co. v. Punch, 66 Fed. R. 342-343. A demand for security and stay of proceedings should not be allowed when not asked for until the original Ubellants have taken their testi- mony. 7b. 343. The court may order monition in a cross-libel to be served upon the proctors of the original libellant, a nonresident, and upon such service proceed to judgment in personam upon all matters covered by the cross- libel; and a subsequent dismissal of the original libel on motion of the libellant will not affect the jurisdiction so obtained. The Eliza Lines, 61 Fed. B. 308-323. The case of Nichols v. Tremlett, 1 Spr. 361, decided in 1857, Held, not to be in accordance with the present practice. 76. 323. RuIeLIII] RULES IN ADMIRALTY 703 Where a vessel libelled in a suit in rem has changed owners between the time the alleged offense was committed and the filing of the libel, and by the terms of the purchase the former owners are liable for all. claims against the vessel, Held, that the former owners, though not parties to the record in the original suit, but liable if the original libel be sustained, might file a cross-Ubel and require security and have a stay of proceedings in the original hbel until such security is given. The George H. Parker, 1 Fliy. 606; Fed. Cases, 5,334. In a collision cause the respondents to the libel should file their cross-y libel, take out process and have it served in the usual way. When this is done the Ubellants in the first suit become respondents in the cross- Ubel, and as such they must answer or stand the consequences of de- fault. Ward V. Chamberlam, 21 How. 572-574, 16 L. ed. 219. That the respondent in a cross-libel will be seriously embarrassed in his business and put to great expense and sacrifice is not sufficient grounds to exempt him from giving security. Compagnie UniverseUe V. BeUoni, 45 Fed. R. 587. An appeal from an order upon a cross-libel denying a demand for security and stay does not operate to suspend the proceedings in the original suit. FrankUn Sugar R. Co. v. Funch, 73 Fed. B. 844r-845, 20 C. C. A. 61. Assuming without deciding that in the exercise of the authority given by Rule 53 the court may commit an error that would subject its action to review, still there ought to be no reversal of an order made thereunder, unless it clearly appears that the action of the court was unwarranted. The court refused to reverse an order denying a demand for security on a cross-Ubel because of inexcusable delay in asking for it. 7b. 845. In admiralty if the respondent desire to obtain entire damages against the Ubellant, or damages in excess of those claimed by the Ubellant, a cross-Ubel is necessary, although matters of recoupment or counter- claim may be asserted in the answer. Bowker v. United States, 186 I/. S. 135-140, 46 L. ed. 1090. Where an appeal is prosecuted from the District Court direct to the Supreme Court under sec. 5 of the Act of Mar. 3, 1891, a decree dismiss- ing a cross-Ubel is not a final judgment within the rule upon that sub- ject. 76.142. In admiralty a set-off may be pleaded which has no connection with the UbeUant's cause of action, though a cross-Ubel can only be filed upon counterclaims arising out of the same cause of action upon which the original Ubel was filed. The C. B. Sanford, 22 Fed. R. 863-864. If respondent sets up a claun by way of recoupment it goes only to diminish or extinguish the demand of the UbeUant, and he can have no 704 RULES IN ADMIRALTY [Rule LIII decree for more than he is sued for except by filing a cross-libel.- Snow V. Carew, 1 Spr. 324; Fed. Cases, 1,344. Where suit is brought for a balance of wages alleged to be due and respondents by answer claim ' damages through the negligence and carelessness of the libellant, which they seek to set off against the hbel- lant's claim, Held, that such acts of negligence if proved are the sub- ject of set-off, but only to the extent of the wages claimed. The Tom Lysle, 48 Fed. B. 690-692. Actions for damages for misrepresentations and breaches of contract for suppUes are within the jurisdiction of admiralty, and the court upon cross-libel may inquire into breaches of such contract, and all the dam- ages suffered thereby, whatever issues they may involve, and upon such cross-libel filed may require security or a stay of proceedings in an orig- inal libel in rem for the price of such supplies. The Electron, 48 Fed. R. 689-690. By bringing a cross-Ubel the claimant loses no defense properly set up in his answer to the libel. lb. Rule 53 does not permit new and distinct matters not involved in the issues tendered by the original libel to be the basis of a cross-libel, but any cause of action in favor of a party called upon to defend against the original libel founded upon the same contract, or arising out of the same transaction, is a counterclaim which may be set up by cross-libel. The Highland Light, 88 Fed. R. 296-297. Rule 53 must be construed to allow all matters in dispute between the parties which must necessarily be considered in a determination of the original' case to be fully considered for all purposes, so that the rights of both parties may be protected and finally adjudicated in one suit. 76. 297. To a libel in rem to recover charges of loading, a cross-libel was al- lowed to be filed to recover damages for breach of promise to render towage service, both agreements being embodied in the same instru- ments, lb. The rule is well settled in admiralty that respondent may set up and prove and recoup for matters growing out of the same cause of action as is set up in the libel, and by averments in the answer may avail himself of all such matters to the extent of defeating the libellant's demand; but it is also well settled that if respondent desires afiBrmative relief beyond defeating the Ubel and a decree over and against the libel- lant, he must beside answering the case made by the libel, file a cross- bill, which is an independent proceeding with the formalities attendant upon an original libel. The Edward H. Blake, 92 Fed. B. 203-206. Rule 53 is broad enough to cover those cases where the original action is in personam as well as in rem. The court, however, is to see that no injustice is done in its enforcement, and the burden is upon the respond- Rule LIV] RULES IN ADMIRALTY 705 ent in the cross-libel to show circumstances which would make the application of the rule unjust. Morse I. & D. D. Co. v. Luckenbach 123 Fed.B. 332-334, 59 C. C. A . 236. ' To a libel filed for injury to a vessel from the defect of a dock, the dock owner was allowed to file a cross-libel against the vessel for ex- penses of pumping her out and placing her in the dock so that her cargo could be discharged. Genthner v. Wiley, 85 Fed. R. 797. Where the claimant of a libelled vessel procures an order requiring libellant to give security to the claimant for damages claimed in his cross-libel, upon dismissal of the cross-libel the claimant is properly taxed with the amount paid by libellant to a surety company for fur- nishing such bond. Jacobson v. Lewis Klondike Ex. Co., 112 Fed R 73-80, 50 C. C. A. 121. Supplementary rules of practice in admiraMy, under the Act of Mar. 3, 1851, entitled "An ad to limit the liability of shipowners and for other purposes." Rule LIV When any ship or vessel shall be libelled, or the owner or owners thereof shall be sued, for any owners claiming limi- embezzlement, loss, or destruction by tt^fAt^^t "issi! the master, officers, mariners, passengers, ^^^ ^'® ^^^^' or any other person or persons, of any property, goods, or merchandise shipped or put on board of such ship or vessel, or for any loss, damage, or injury by collision, or for any act, matter, or thing, loss, damage, or forfeiture done, occasioned, or incurred, without the privity or knowledge of such owner or owners, and he or they shall desire to claim the benefit of limitation of liability provided for in the third and fourth sections of the said act above recited, the said owner or owners shall and may file a libel or petition in the proper District Court of the United States, as hereinafter specified, setting forth the facts and circumstances on which such limitation of liability is claimed, and praying proper relief in that behalf; and thereupon said court, having caused due appraisement to be had of the amount After appraisement, may or value of the interest of said owner or "f vXT^rinteresT^hi owners, respectively, in such ship or vessel, and her freight, for the voyage, shall make an order for the payment of the same into court, or for the giving of 45 706 EULlES IN ADMIRALTY [Rule LIV a stipulation, with sureties, for payment thereof into court whenever the same shall be ordered; or, if the said owner or owners shall so elect, the said court shall, without such May order transfer of appraisement, make an order for the interest to trustee with- i*ii* i j?i_' j.i_» out appraisement. transfer by him or them oi his or their interest in such vessel and freight, to a trustee to be appointed by the court under the fourth section of said act; and, upon compliance with such order, the said court shall issue a Monition, how served. monition against all persons claiming damages for any such embezzlement, loss, destruction, damage, or injury, citing them to appear before the said court and make due proof of their respective claims at or before a certain time to be named in said writ, not less than three months from the issuing of the same; and public notice of such monition shall be given as in other cases, and such further notice served through the post office, or otherwise, as the court, in its discretion, may direct; and the said court Further prosecution of shall also, ou the appUcatiou of the said suits restrained. owner or owuers, make an order to re- strain the further prosecution of all and any suit or suits against said owner or owners in respect of any such claim or claims. Decisions In a proceeding claiming the benefit of the limitation of liability provided for in sec. 4,282 and sec. 4,284, Rev. Stats. {U. S. Comp. Stats. 1901, p. 2943), Held, that the value of the vessel or interest of the party may be judicially ascertained primarily without a hearing of the persons interested adversely, and that such ex parte appraisement is not void, though irregular. In re Morrison, 147 U. S. 14r-34, 37 L. ed. 60. * The Supreme Court in providing by Rule 54 for the making by the District Court of an order to restrain the prosecution of suits against shipowners in respect to the claims mentioned in that rule, intended that persons prosecuting suits in State courts should be restrained. No provision for notice of application for a restraining order has been made. Inre Providence & N. Y. S. S. Co., 6 Ben. 124; Fed. Cases, 11,451. The Supreme Court had power to make Rule 54 notwithstanding the provisions of the Act of Mar. 2, 1793, sec. 5, that an injunction should not be granted to stay proceedings in any State court. lb. Where upon an appraisement under Rule 54 the privilege is granted to the original libellant of being heard on the appraisement, it is proper that the court should direct a stay of his proceedings while the pre- RuleLIV] RULES IN ADMIRALTY 707 liminary steps are being taken to put into the hands of the court a sum of money or stipulation, representing the interest of the defendants, owners of the vessel libelled. lb. The rule of limited responsibility applies to foreign ships as well as domestic, and as well in favor of foreign shipowners as against them. The Scotland, 105 U. S. 24-31, 26 L. ed. 1001. Where a rule adopted by Congress is the same as a rule of the general maritime law, its efficacy as a rule depends upon the statute and not upon any inherent force of the maritime law, and must be interpreted and administered as statute law. The code or system of laws by which the mutual rights of the parties are to be determined, stated. lb. 29. Shipowners may avail themselves of the Act of Congress limiting their liability by plea or answer instead of the methods prescribed by Rule 54. Rule 54 was not intended to restrict but to aid in consolidat- ing ■claims against the owners arising from the acts of the master or crew. n>. 33. Two modes are given for securing to the owner a limitation of lia- bility to the amount or value of his interest in the vessel or freight, one by sec. 4,284, Rev. Stats., and the other by sec. 4j285, Rev. Stats. (U. S. Crnnp. Stats. 1901, p. 2944). lb. 34. Where the benefit of the limited liability law is pleaded to the libel a, decree may be made against the respondents for the amount of their liability, and the amount paid into court distributed among the parties entitled to it. It is not necessary that the shipowner should surrender the ship and freight, which is but one of the two proceedings to claim relief. He may insist upon the benefit of the law while denying liability, and if found liable the decree may go against the value of the property saved, including the freight or passage money realized. 76. 35. In a collision cause the owner of the vessel is not precluded from thereafter claiming the benefit of the limited liability act by denying all liability whatever. The Benefactor, 103 U. S. 239-243, 26 L. ed. 351. Where in proceedings for damages for collision a decree has been rendered in favor of the libellants, and the owners thereafter file a peti- tion for limited liability, the Ubellants may be restrained from enforcing their decree, until final action had upon the petition, in any other man- ner than by pro rata distribution of the fund standing by stipulation m place of the ship and freight. 76.246. The detent of the liability of the owner is the value of the ship and frdght after the injury has occurred, so that if the ship was destroyed the liability is gone, and if not destroyed the owners may surrender the ship in discharge of their liability. 76.246. Rroceedmgs for the limitation of a liability not instituted until alter a party has obtained satisfaction of his demand are ineffectual as to bim A return of the money should not be compelled, nor m general 708 RULES IN ADMIRALTY [Rule LV should relief be granted, except upon condition of compensating the party for costs and expenses by reason of delay in filing the petition. 7b. 245. A libel for damages in a collision case may be ordered to be stayed until the owners of the offending vessel have an opportunity of fiUng a petition or libel under the Act of Congress limiting their liabiUty. The Maria and EUzabeth, 11 Fed. B. 520-521. The owner of the vessel before suit brought against him or the vessel may institute proceedings to obtain the benefit of the Act of Congress limiting Uability. Ex parte Slayton, 105 U. S. 451-452, 26 L. ed. 1066. Where a vessel has been attached by process from a State court, and afterward the cause removed into the United States court, the possession of the vessel by the marshal or trustee is not necessary for the purpose of proceeding for Umitation of hability; but where further proceedings in the State court have been enjoined, the vessel may be ordered sold by the United States court on application by the trustee on cause shown, and the attachment transferred to the proceeds of the sale. The Mendota, 14 Fed. R. 358-363. In a proceeding for the limitation of lip,bility, the decree adjudging the rights of the parties and referring the cause to a commissioner to take testimony on claims for damages, may be reviewed, upon an appeal from the final decree, made after the master's report is in disposing of the whole cause, although that appeal is taken long after the entry of an interlocutory decree. La Bourgogne, 139 Fed. R. 433-435. Rule LV Proof of all claims which shall be presented in pursuance Eroof before oommis- of Said monition shall be made before sioner and report of same. a commissiouer, to be designated by the court, subject to the right of any person interested, to question or controvert the same; and upon the completion of said proofs, the commissioner shall make report of the claims so proven, and upon confirmation of said report, after hearing any exceptions thereto, the moneys paid or secured to be paid into court as aforesaid, or the proceeds of said ship or vessel and freight (after pajnnent of costs and expense), shall be divided -pro rata amongst the several Pro rata distribution of claimants in proportion to the amount ™°''^''^' of their respective claims, duly proved and confirmed as aforesaid, saving, however, to all parties any priority to which they may be legally entitled. RuIeLVI] RULES IN ADMIRALTY 709 Decisions Rule 55 contemplates the payment of all costs and expenses neces- sarily incident to the sale of the vessel and the proof of the claims, in- cluding the clerk's commission upon the money paid into court. The Vemon, 36 Fed. B. 113-114. Where the fund stiU remains in court the filing of claims may be per- mitted after the time fixed by the monition therefor has expired by those seeking to share in the fund secured by the stipulation furnished under Rule 54. The Argos, 100 Fed. R. 142-144. The Tpro rata distribution of the fund where the amount was not suffi- cient to pay off the claims in fuU provided for by sec. 4,284, Rev. Stats. {U. S. Comp. Stats. 1901, p. 2944), relates to a distribution among those whose losses arise from the collision, and has no reference to other liens of an inferior grade against the vessel. A decree for damages on the cause of collision overrides all prior hens, even the wages of seamen. The Maria and Ehzabeth, 12 Fed. R. 627-630. RXTLE LVI In the proceedings aforesaid, the said owner or owners shall be at hberty to contest his or their Litei or petition con- "^ testing liability to state liability, or the liability of said ship or facts, vessel for said embezzlement, loss, destruction, damage, or injury (independently of the limitation of liability claimed imder said act), provided that, in his or their libel or petition, he or they shall state the facts and circumstances by reason of which exemption from liabiUty is claimed; and any per- son or persons claiming damages as aforesaid, and who shall have presented his or their claim to the conamissioner imder oath, shall and may answer such who, may answer iibei libel or petition, and contest the right *° °™ ^ " of the owner or owners of said ship or vessel, either to an exemption from Hability, or to a Umitation of liability under the said Act of Congress, or both. Decisions Where a petition under the Limited Liability Act is brought after the vessel has been decreed to be hable for damages sustained by a coUision the question of hability is res adjvdicata, and is in no way involved in the appUcation of the owners for the benefit of the act. The, losing party cannot revive and retry the case upon its merits on such petition. The Maria and Ehisabeth, 12 Fed. R. 627-630. 710 RULES IN ADMIRALTY [Rule LVII A person claiming damages may contest the jurisdiction of the court "without presenting his claim to the commissioner as provided in Rule 56, but not the right of the shipowners to exemption from liability. In re Providence-and N. Y. S. S. Co., 6 Ben. 258; Fed. Cases, 11,425 Rule 56 was intended to relieve shipowners from the EngUsh rule requiring them to confess a ship to have been in fault in a collision when they seek the benefit of the law of limited liability. Under Rule 56 a party seeking such limitation is allowed to contest any liability what- ever. The Benefactor, 103 U. S. 239-243, 26 L. ed. 351. This rule was not intended to abrogate the rule of law that a matter once regularly decided between parties in a competent tribunal cannot be again opened by either of them except in appellate proceedings. Rule 56 allowing contestation of all liability cannot be applied where the question of general liabiUty has already been adjudicated. Nor do proceedings under the rule for limitation of liability prevent the due prosecution of an appeal on a primary cause of collision. /&. 243. RtJLE LVII The said libel or petition shall be filed and the said pro- where libel or petition ceedings had in any District Court of ^'°'^' the United States in which said ship or vessel may be libelled to answer for any such embezzlement, loss, destruction, damage, or injury; or, if the said ship or vessel be not libelled, then in the District Court for any District in which the said owner or owners may be sued in wiien ship not libelled, that behalf. When the said ship or or suit begun in district ^ other than where ship vessel has not been libelled to answer 13, where proceedings to be had. the matters aforesaid, and suit has not been commenced against the said owner or owners, or has been commenced in a district other than that in which the said ship or vessel may be, the said proceedings may be had in the District Court of the district in which t^e said ship or vessel may be, and where it may be subject to the control of such court for the purposes of the case as herein- before provided. If the ship have already been libelled and sold, the proceeds shall represent the same for the pur- poses of these rules. Decisions The owners' liability is limited to such loss or damage as occurs on the last voyage preceding the filing of the petition or in which the vessal RuleLVIII] RULES IN ADMIRALTY 711 was lost. Immunity from a liability for a series of losses happening on different voyages cannot be had. The Alpena, 8 Fed. R. 280-283. The measure of the owner's liabiUty is the value of the ship imme- diately after the loss or damage complained of. 76. 285. Where petition for limitation of Uability is filed after proceedings brought against the ship for loss, or damage, it must be filed in the same district where such suits are begun. 76. 285. On objection that one of the petitioners seeking to limit their lia- bQity reside in the district and that neither the ship nor any part of it nor the cargo are in the jurisdiction of the court, Held, that the court had jurisdiction where it had possession of a fund or where it had al- ready taken jurisdiction of proceedings wherein a plain equity required that a final decree should be framed with reference to proceedings that might be had to limit the liabihties of the owner. In re Leonard, 14 Fed. R. 53-55. Where a libel for damages was brought against a vessel in the eastern district and afterwards suit was brought in the State court for the southern district, Held, that the petition should be filed in the eastern district. In re The Lukenbach, 26 Fed. R. 870-871. The words "May be libelled" in the rule construed to include cases in which a ship may have been libelled. lb. 871. In a collision between a vessel owned in New York and one owned in Massachusetts, Held, that the vessel not having been libelled to answer for the loss resulting from the collision, and no suit therefor having been commenced against her owners, proceedings to limit liability were properly instituted by the Massachusetts owners in the District Court in Massachusetts .where the vessel was at the time proceedings were instituted. In re Morrison, 147 U. S. 14-33, 37 L. ed. 60. If the ship has been already libelled and sold, the proceeds represent the same under Rule 57. And if stipulation has been given, the stipu- lation is a substitute for the vessel. The Oregon, 158 U. S. 186-211, 39 L. ed. 943. Rule LVIII All the preceding rules and fegulations for proceeding in cases where the owner or owners of a ship casea in csrcuit Courts or vessel shall desire to claim the benefit '"* of limitation of liabiUty provided for in the Act of Congress in that behalf, shall apply to the Circuit Courts of the United States where such cases are or shall be pending iq said courts upon appeal from the District Courts, ^ 712 RULES IN ADMIKALTX [Rule LIX Decisions Proceedings for limitation of liability should originate in the District Court. The Mary Lord, 31 Fed. R. 416-417. Rule LIX In a suit for damage by collision, if the claimant of any Vessels jointly liable vesscl proceeded against, or any re- cite. fo°r Tmlgef by spondent proceeded against in -personam, °°"™™- shall, by petition, on oath, presented before or at the time of answering the libel, or within such further time as the court may allow, and containing suitable allegations showing fault or negligence in any other vessel contributing to the same coUision, and the particulars thereof, and that such other vessel or any other party ought to be proceeded against in the same suit for such damage, pray that process be issued against such vessel or party to that end, such process may be issued, and, if duly served, such suit shall proceed as if such vessel or party had been originally proceeded against; the other parties in the suit shall answer the petition; the claimant of such vessel or such new party shall answer the libel; and such further proceedings shall be had and decree rendered by the court in the suit as to law and justice shall appertain. But every stipulation given on such petitioner shall, upon filing his filing petition. petition, give a stipulation, with suffi- cient sureties, to pay to the libellant and to any claimant or new party brought in by virtue of such process, all such costs, damages, and expenses as shall be awarded against the petitioner by the court upon the final decree, whether rendered in the original or appellate court; and any such claimant or new party shall give the same bonds or stipula- tions which are required in like cases from parties brought in under process issued on the prayer of a libellant. Decisions A court of admiralty has jurisdiction of an independent suit to enforce contribution in cases of collision by one of two vessels against the other, contributors to a collision; but where there has been a final decree in which both vessels, contributors to the collision and all the parties in Rule LIX] EULES IN ADMIBALTY 713 interest are before the court, and that decree determines the facts as to the collision and apportions the damages between the two vessels, Held, that such decree is conclusive as to all persons touching the rights and liabilities of each of the vessels arising out of the collision and that an independent suit brought by one vessel against the other, to enforce contribution to cargo damages, refused in. the original suit for lack of appropriate pleadings, cannot be maintained. Erie & W. Transp. Co. v. Erie R. Co., 142 Fed. R. 9-15, 73 C. C A. 195. Where a decree in admiralty is rendered against the owner of a vessel and its surety upon a stipulation entered into under sec. 941, Rev. Stats., and the admiralty rules, for the release of a vessel libelled for damages caused by collision, it is not necessary for the surety to join in the appeal or to be severed, but the owner of the vessel alone may prosecute the appeal. The New York, 104 Fed. R. 561-663, 4AC.C.A. 38. The doctrine of an equal division of damages in admiralty in the case of a collision between two vessels where both are guilty of fault contribu- tive to the collision, first announced in 17 How. 170, has been applied where both vessels being in fault, only one of them was injured, as well as to cases where both were injured. In the first case the injured vessel recovering only one-half its damages, and in the second case the dam- ages suffered by two vessels being added together and equally divided and the vessel whose damages exceeded such one-half recovering the excess against the other vessel. The Max Morris, 137 Fed. R. 1-8, 69 C. C. A. 1. Cases recognizing the rule as to an equal division of the loss cited on page 9. Rule 69 authorizes the claimant or respondent in suits for damages by collision to compel the libeUant to bring in another vessel alleged to have been in fault. /6. 11. Where a libel in a colUsion suit was filed against a vessel chartered, where the charterer supplied its own officers and crew, under Rule 59 the court may entertain a petition by the owners and claimants of the vessel to call in the charterer to show cause why he should not be con- demned for the damages resulting from the collision. The Barnstable, 181 U. S. 464-467, 45 L. ed. 954. In a collision through negligence of the charterer the ship itself l<9 treated in some sense as a principal and as liable for the negligence of those in possession of her. lb. 467. The liability of the vessel for the negligence of the charterers is fixed by Rev. Stats., sec. 4,286 (U. S. Comp. Stats. 1901, p. 2944). 7b. 468. If there are no provisions to the contrary in the charter party, the charterers are liable for the consequence of their negligence in the navi- gation of the ship, and are bound to return her to the owners free from any lien caused by their own fault. lb. 468. 714 BULBS IN ADMIRALTY [Rule tlX Upon contracts cxf affreightment made by a charterer as a special owner, a decree for loss by negligence may be made against the ship, final, as between the libellant and the owners, and such decree need not provide that the libellant collect from the charterers in the first instance, and only the deficiency, if any, be collected from the ship. The Atet, 61 Fed. R. 113-115, 9 C. C. A. 390. Where both the ship and charterers are charged with liability for breach of the same contract of affreightment, they may be joined to answer in the same proceeding and the question whether the liability ought to be borne by one rather than the other, or be shared, can be determined in the one suit. The Planet Venus, 113 Fed. R. 387-389. In a suit for collision brought by the owner of one of two vessels in a collision cause, in which the owners of her cargo were joint libellants against another vessel, where the decree was that the two vessels were equally in fault and the recovery of the Ubelknt vessel owner restricted to one-haH of his loss, but full recovery decreed against the other vessel, for the losses sustained by the innocent cargo owners, although the li- bellant owner failed to avail himself of the remedy afforded by Rule 59, Held, he was not precluded from recouping from the amount awarded against his own vessel, in favor of the other vessel, one-half the loss which he Was decreed to pay to the innocent cargo owners. The Living- ston, 104 Fed. R. 918-927. Rule 59 is remedial and should be liberally applied. The owners of a vessel libelled in rem in a collision cause may by petition bring into the suit other parties liable for the same collision with process in personam against them, and it is no objection that the proceedings thereafter are in rem and in personam in the same action. Joice v. Canal Boats, 32 Fed. R. 553-554. While Rule 59 does not in terms provide for other than collision cases, the principle on which it is based may be applied by analogy to other cases to assist in the administration of justice requiring the appearance of any additional defendant who may be responsible for the claim in suit or any part thereof; applied in a suit for salvage where the libellee alleged that the vessel saved had been cast adrift by the negligence of other parties and asked that process be issued against them and that they be made respondents in the action, Dailey v. The City of New York, 119 Fed. R. 1,005, EXILES OF IHE SUPREME COURT OF THE UIITED STATES HELATING TO APPEALS FEOM THE COURT OF CLAIMS As adopted by the Supreme Court in 1886 and sukseqmraiy added to and amended Rule I la all cases hereafter decided in the Court of Claims, m which, by the Act of Congress, such Reeord ob wi>i<=h J appeals are allowable, they shaU be |^^t fiou'ir^'Vly heard in the Supreme Court upon the *^®' "^ ^- 'S- ^^' *°^- following record, and none other: (1) A transcript of the pleadings in the case, of the final judgnient or decree of the court, and of .Transcript of pleadings, , ■ . , , J ,. . , W. aifi U. S. 402; 1 such mteriocutory orders, ruhngs, judg- WaU. 102. ments, and decrees as may be necessary to a proper review of the case.^ (2) A finding by the Court of Claims of the facts in the case, established by the evidence, in Knding of feet and oon- the nature of a special verdict, but not S°''i7;°5 witi. nV-, the evidence establishing them; and a wgf'e^'waul Voi;'^if6 separate statement of the conclusions ^' ^' ^^*" of law upon said facts on which the court founds its judg- ment or decree. The finding of facts and conclusions of law to be certified to this court as part of the record.^ ' Rttle 8, aec. 2, -of the Supreme Court requires the clerk to annex to and transmit with the record a copy of the opinion or opimoos hied in the case. 2 Th^'foHowiog extract from the opinion of the Supreme Court in the case of Burr v. The Des Moines Railroad and Navigation Co., 1 Wail. 102, will explain what is neces- sary to 'be set out in the -findings : "The statement of facts on which this court will inquire if there is or is not error in the applicatio9 of the law to them is a statement of the ultimate facts or proposi-- 715 716 RULES RELATING TO COURT OF CLAIMS [Rules II-V Rule II [Applied only to decisions rendered before its adoption Obsolete rule. in 1866, and therefore long since obsolete.] Rule III In all cases an order of allowance of appeal by the Court Allowance of appeals; of Claims, or the chief justice thereof m^ng "of^Smitefon. T7 in vacation, is essential, and the limita- "'''"■ *°^' tion of time for granting such appeal shall cease to run from the time an application is made for the allowance of appeal.^ Rule IV In all cases in which either. party is entitled to appeal to Findings of fact and the Supreme Court, the Court of Claims conclxisions of law to be ,' ^i i . ^ t p p filed by court. shall make and file their findings ot fact and their conclusions of law therein, in open court, before or at the time they enter judgment in the case. Rule V In every such case, each party, at such time before trial, Parties before trial to and in such form as the court may pre- submit request to find - 1 n 1 . facts. scribe, shall submit to it a request to find all the facts which the party considers proven and deems material to the due presentation of the case in the findings of fact.^ tions which the evidence is intended to establish, and not the evidence on which those ultimate facts are supposed to rest. The statement must be sufficient in itself, without inferences or comparisons, or balancing of testimony, or weighing evidence, to justify the application of the legal principles which must determine the case. It must leave none of the functions of a jury to be discharged by this court, but must have all the sufiiciency, fullness, and perspicuity of a special verdict. If it requires of the court to weigh confiicting testimony, or to balance admitted facts, and deduce from these the proposition of fact on which alone a legal conclusion can rest, then it is not such a state- ment as this court can act upon." ^ Rule 8, sec. 5, and Rule 9, sec. 1, require that the record on appeal in cases from all courts must be filed with the clerk of the Supreme Court and the case docketed within thirty days from the allowance of the appeal. Rule 20, sec. 1, permits submission of appeals from the Court of Claims on printed briefs without oral argument, by consent of both parties, within the first ninety days of the term, and thereafter within thirty days after docketing, but not later than April 1. Twenty-five copies of the arguments, signed by attorneys or counsellors of the Supreme Court, must first be filed. Rule VI] RULES RELATING TO COURT OP CLAMS 717 Rule VI Ordered, that Rule 1, in reference to appeals from the Court of Claims, be, and the same is Rules to apply to cases , . under the District Claims hereby, made applicable to appeals m Act. all cases heretofore or hereafter decided by that court imder the jurisdiction conferred by the Act of June 16, 1880, c. 243, "to provide for the settlement of all outstanding claims against the District of Columbia, and conferring jurisdiction on the Court of Claims to hear the same, and for other purposes." Adopted May 7, 1883. GENEEAL OEBEES IN BANKEUPTOY PRESCRIBED BY THE SUPREME COURT OF THE UNITED STATES At its October Term, A. D. 1898 In pursuance of the powers conferred by the Constitution and laws upon the Supreme Court of the United States, and particularly by the Act of Congress approved July 1, 1898, entitled: "An Act to Establish a Uniform System of Bankruptcy throughout the United States," it is ordered, on this 28th day of November, 1898, that the following rules be adopted and estabUshed as general orders in bankruptcy, to take effect on the first Monday, being the 2d day of January, 1899. And it is further ordered that all proceedings in bankruptcy had before that da^f, in accordance with the act last aforesaid, and being in substantial conformity either with the provisions of these general orders, or else with the general orders established by this court under the bankrupt act of 1867 and with any general rules or special orders of the courts in bankruptcy, stand good; subject, however, to such further regulation by rule or order of those courts as may be necessary or proper to carry into force and effect the bankrupt act of 1898 and the general orders of this court. Rule I — Docket The clerk shall keep a docket, in which the cases shall be entered and numbered in the order in which they are com- menced. It shall contain a memorandum of the filing of the petition and of the action of the court thereon, of the jrefetence of the case to the referee, and of the transmission 719 720 ORDERS IN BANKRUPTCY [Rules II-V by him to the clerk of his certified record of the proceedings, with the dates thereof, and a memorandum of all proceedings in the case except those duly entered on the referee's certi- fied record aforesaid. The docket shall be arranged in a manner convenient for reference, and shall at all times be open to public inspection. Rule II — Filing of Papers The clerk or the referee shall indorse on each paper filed with him the day and hour of filing, and a brief statement of its character. Rule III — Process All process, summons, and subpoenas shall issue out of the court, under the seal thereof, and be tested by the clerk; and blanks, with the signature of the clerk and seal of the court, may, upon application, be furnished to the referees. Rule IV — Conduct of Proceedings Proceedings in bankruptcy may be conducted by the bankrupt in person in his own behalf, or by a petitioning or opposing creditor; but a creditor will only be allowed to manage before the court his individual interest. Every party may appear and conduct the proceedings by attorney, who shall be an attorney or counsellor authorized to practice in the Circuit or District Court. The name of the attorney or counsellor, with his place of business, shall be entered upon the docket, with the date of the entry. All papers or proceedings offered by an attorney to be filed shall be indorsed as above required, and orders granted on motion shall contain the name of the party or attorney making the motion. Notices and orders which are not, by the act or by these general orders, required to be served on the party personally may be served upon his attorney. Rule V — Frame of Petitions All petitions and the schedules filed therewith shall be printed or written out plainly, without abbreviation or Rules VI, VII] ORDERS IN BANKRUPTCY 721 interlineation, except where such abbreviation and inter- lineation may be for the purpose of reference. Rule VI — Petitions in Different Distrids In case two or more petitions shall be filed against the same individual in different districts, the first hearing shall be had in the district in which the debtor has his domicil, and the petition may be amended by inserting an allegation of an act of bankruptcy committed at an earlier date than that first alleged, if such earlier act is charged in either of the other petitions; and in case of two or more petitions against the same partnership in different courts, each having jurisdiction over the case, the petition first filed shall be first heard, and may be amended by the insertion of an allegation of an earlier act of bankruptcy than that first alleged, if such earUer act is charged in either of the 'Other petitions; and, in either case, the proceedings upon the other petitions may be stayed until an adjudication is made upon the petition first heard; and the court which makes the first adjudication of bankruptcy shall retain jurisdiction over all proceedings therein until the same shall be closed. In case two or more petitions shall be filed in different districts by different members of the same partnership for an adjudication of the bankruptcy of said partnership, the court in which the petition is first filed, having jurisdiction, shall take and retain jurisdiction over all proceedings in such bankruptcy until the same shall be closed; and if such petitions shall be filed in the same district, action shall be first had upon the one first filed. But the court so retaining jurisdiction shall, if satisfied that it is for the greatest convenience of parties in interest that another of said courts should proceed with the cases, order them to be transferred to that court. Rule VII — Priority of Petitions Whenever two or more petitions shall be filed by creditors against a common debtor, alleging separate acts of bank- ruptcy committed by said debtor on different days within 46 722 ORDERS IN BANKRUPTCY [Rules VIII, IX four months prior to the filing of said petitions, and the debtor shall appear and show cause agaifist an adjudication of bankruptcy against him on the petitions, that petition shall be first heard and tried which alleges the commission of the earliest act of bankruptcy; and in case the several acts of bankruptcy are alleged in the different petitions to have been committed on the same day, the court before which the same are pending may order them to be consoli- dated, and proceed to a hearing as upon one petition; and if an adjudication of bankruptcy be made upon either petition, or for the commission of a single act of bankruptcy, it shall not be necessary to proceed to a hearing upon the remaining petitions, unless proceedings be taken by the debtor for the purpose of causing such adjudication to be annulled or vacated. Rule VIII — Proceedings in Partnership Cases Any member of a partnership, who refuses to join in a petition to have the partnership declared bankrupt, shall be entitled to resist the prayer of the petition in the same manner as if the petition had been filed by a creditor of the partnership, and notice of the filing of the petition shall be given to him in the same manner as provided by law and by these rules in the case of a debtor petitioned against; and he shall have the right to appear at the time fixed by the court for the hearing of the petition, and to make proof, if he can, that the partnership is not insolvent or has not committed an act of bankruptcy, and to make all defenses which any debtor proceeded against is entitled to take by the provisions of the act; and in case an adjudication of bankruptcy is made upon the petition, such partner shall be required to file a schedule of his debts and an inventory of his property in the same manner as is required by the act in cases of debtors against whom adjudication of bank- ruptcy shall be made. Rule IX — Schedule in Involuntary Bankruptcy In all cases of involuntary bankruptcy in which the bankrupt is absent or cannot be found, it shall be the duty Rules X-XII] ORbiERS IN BANKRTjiPTCY 723 of the petitioning creditor to file, within five days after the date of the adjudication, a schedule giving the names and places of residence of all the creditors of the bankrupt, according to the best information of the petitioning creditor. If the debtor is found, and is served with notice to furnish a schedule of his creditors and fails to do so, the petitioning creditor may apply for an attachment against the debtor, or may himself furnish such schedule as aforesaid. Rule X — Indemnity for Expenses Before incurring any expense in publishing or mailing notices, or in traveling, or in procuring the attendance of witnesses, or in perpetuating testimony, the clerk, marshal, or referee may require, from the bankrupt or other person in whose behalf the duty is to be performed, indemnity for such expense. Money advanced for this purpose by the bankrupt or other person shall be repaid him out of the estate as part of the cost of administering the same. Rule XI — Amendments The court may allow amendments to the petition and schedules on application of the petitioner. Amendments shall be printed or written, signed and verified, like original petitions and schedules. If amendments are made to separate schedules^, the same must be made separately, with proper references. In the application for leave to amend, the petitioner shall state the cause of the error in the paper originally filed. Rule XLl— Duties of Referee (1) The order referring a case to a referee shall name a day upon which the bankrupt shall attend before the ref- eree; and from that day the bankrupt shall be subject to the orders of the court in all matters relating to his bank- ruptcy, and may receive from the referee a protection against arrest, to contmue until the final adjudication on his application for a discharge, unless suspended or vacated by order of the court. A copy of the order shaU forthwith 724 OEDERS IN BANKRUPTCY [Rules XlII-XV be sent by mail to the referee or be delivered to him per- sonally by the clerk or other officer of the court. And there- after all the proceedings, except such as are required by the act or by these general orders to be had before the judge^ shall be had before the referee. (2) The time when and the place where the referees shall act upon the matters arising under the several cases referred to them shall be fixed by special order of the judge, or by the referee; and at such times and places the referees may perform the duties which they are empowered by the act to perform. (3) Applications for a discharge, or for the approval of a composition, or for an injunction to stay proceedings of a court or officer of the United States or of a State, shall be heard and decided by the judge. But he may refer such an apphcation, or any specified issue arising thereon to the referee to ascertain and report the facts. Rule XIII — Appmntment and Removal of Trustee The appointment of a trustee by the creditors shall be subject to be approved or disapproved by the referee or by the judge; and he shall be removable by the judge only. Rule XIV — No Official or General Trustee No official trustee shall be appointed by the court, nor any general trustee to act in classes of cases. Rule XV — Trustee not Appointed in Certain Cases If the schedule of a voluntary bankrupt discloses no assets, and if no creditor appears at the first meeting, the court may, by order setting out the facts, direct that no trustee be appointed; but at any time thereafter a trustee may be appointed, if the court shall deem it desirable. If no trustee is appointed as aforesaid, the court may order that no meeting of the creditors other than the first meeting shall be called. Rules XVl-XVlII] ORDERS IN BANKRUPTCY 725 Rule XVI— Notice to Trustee of Ms Appointment It shall be the duty of the referee, immediately upon the appointment and approval of the trustee, to notify him in person or by mail of his appointment; and the notice shall require the trustee forthwith to notify the referee of his acceptance or rejection of the trust, and shall contam a statement of the penal sum of the trustee's bond. Rule XYIl— Duties of Trustee The trustee shall, immediately upon entering upon his duties, prepare a complete inventory of all the property of the bankrupt that comes into his possession. The trustee shall make report to the court, within twenty days after receiving the notice of his appointment, of the articles set off to the bankrupt by him, according to the provisions of the forty-seventh section of the act with the estimated value of each article, and any creditor may take exceptions to the determination of the trustee within twenty days after the filing of the report. The referee may require the exceptions to be argued before him, and shall certify them to the court for final determination at the request of either party. In case the trustee shall neglect to file any report or statement which it is made his duty to file or make by the act, or by any general order in bankruptcy, within five days after the same shall be due, it shall be the duty of the referee to make an order requiring the trustee to show cause before the judge, at a specified time in the order, why he should not be removed from office. The referee shall cause a copy of the order to be served upon the trustee at least seven days before the time fixed for the hearing, and proof of the service thereof to be delivered to the clerk. All accounts of trustees shall be referred as of course to the referee for audit, unless otherwise specially ordered by the court. Rule XVIII— Safe of Property (1) All sales shall be by public auction unless otherwise ordered by the court. (2) Upon application to the court, and for good cause ?'26 ORDERS IN BANKRUPTCY [Rules XIX-XXI shown, the trustee may be authorized to sell any specified portion of the bankrupt's estate at private sale; in which case he shall keep an accurate account of each article sold, and the price received therefor, and to whom sold, which account he shall file at once with the referee. (3) Upon petition by a bankrupt, creditor, receiver, or trustee, setting forth that a part or the whole of the bank- rupt's estate is perishable, the nature and location of such perishable estate, and that there will be loss if the same is not sold immediately, the court, if satisfied of the facts stated and that the sale is required in the interest of the estate, may order the same to be sold, with or without notice to the creditors, and the proceeds to be deposited in court. Rule XIX — Accounts of Marshal The mg,rshal shall make return, under oath, of his actual and necessary expenses in the service of every warrant addressed to him, and for custody of property, and other services, and other actual and necessary expenses paid by him with vouchers therefor whenever practicable, and also with a statement that the amounts charged by him are just and reasonable. RuLte XX — Papers Filed after Reference Proofs of claims and other papers filed subsequently to the reference, except such as call for action by the judge, may be filed either with the referee or with the clerk. , Rule XXI— Proof of Debts (1) Depositions to prove claims against a bankrupt's estate shall be correctly entitled in the court and in the cause. When made to prove a debt due to a partnership, it must appear on oath that the deponent is a member of the part- nership; when made by an agent, the reason the deposition is not made by the claimant in person must be stated; and when made to prove a debt due to a corporation, the deposition shall be made by the treasurer, or, if the corpora- tion has no treasurer, by the officer whose duties most nearly Rule XXI] ORDERS IN BANKRUPTCY 727 correspond to those of treasurer. Depositions to prove debts existing in open account sliall state when the debt became or will become due; and if it consists of items ma- turing at different dates the average due date shall be stated, in default of which it shall not be necessary to compute interest upon it. All such depositions shall contain an averment that no note has been received for such account, nor any judgment rendered thereon. Proofs of debt re- ceived by any trustee shall be delivered to the referee to whom the cause is referred. (2) Any creditor may file with the referee a request that all notices to which he may be entitled shall be addressed to him at any place, to be designated by the post office box or street number, as he may appoint; and thereafter, and until some other designation shall be made by such creditor, all notices shall be so adciressed; and in other cases notices shall be addressed as specified in the proof of debt. (3) Claims which have been assigned before proof shall be supported by a deposition of the owner at the time of the commencement of proceedings, setting forth the true con- sideration of the debt and that it is entirely unsecured, or if secured, the security, as is required in proving secured claims. Upon the filing of satisfactory proof of the assign- ment of a claim proved and entered on the referee's docket, the referee shall immediately give notice by mail to the original claimant of the filing of such proof of assignment; and if no objection be entered within ten days, or within further time allowed by the referee, he shall make an order subrogating the assignee to the original claimant. If ob- jection be made, he shall proceed to hear and determine the matter. (4) The claims of persons contingently liable for the bankrupt may be proved in the name of the creditor when known by the party contingently liable. When the name of the creditor is unknown, such claim may be proved in the name of the party contingently liable; but no dividend shall be paid upon such claim, except upon satisfactory proof that it will diminish -pro tarda the original debt. (5) The execution of any letter of attorney to represent 728 OEDERS IN BANKEUPTCY [Rule XXII a creditor, or of an assignment of claim after proof, may be proved or acknowledged before a referee, or a United States commissioner, or a notary public. When executed on behalf of a partnership or of a corporation, the person, executing the instrument shall make oath that he is a mem- ber of the partnership, or a duly authorized officer of the corporation on whose behalf he acts. When the person executing is not personally known to the officer taking the proof or acknowledgment, his identity shall be established by satisfactory proof. (6) When the trustee or any creditor shall desire the re- examination of any claim filed against the bankrupt's estate, he may apply by petition to the referee to whom the case is referred for an order for such re-examination, and thereupon the referee shall make an order fixing a time for hearing the petition, of which due notice shall be given by mail addressed to the creditor. At the time appointed the referee shall take the examination of the creditor, and of any witnesses that may be called by either party, and if it shall appear from such examination that the claim ought to be expunged or diminished, the referee may order ac- cordingly. Rule XXII — Taking of Testimony The examination of witnesses before the referee may be conducted by the party in person or by his counsel or at- torney, and the witnesses shall be subject to examination and cross-examination, which shall be had in conforfnity with the mode now adopted in courts of law. A deposition taken upon an examination before a referee shall be taken down in writing by him, or imder his direction, in the form of narrative, unless he determines that the examination shall be by question and answer. When completed it shall be read over to the witness and signed by him in the presence of the referee. The referee shall note upon the deposition any question objected to, with his decision thereon; and the court shall have power to deal with the costs of incompe- tent, immaterial, or irrelevant depositions, or parts of them, as may be just. Rules XXIII-XXVII] ORDERS IN -BANKRUPTCY 729 Rule XXIII— Orders of Referee In all orders made by a referee, it shall be recited, according as the fact may be, that notice was given and the manner thereof; or that the order was made by consent; or that no adverse interest was represented at the hearing; or that the order was made after hearing adverse interests. Rule 'KXIY— Transmission of Proved Claims to Clerk The referee shall forthwith transmit to the clerk a list of the claims proved agamst an estate, with the names and addresses of the proving creditors. Rule XXV — Special Meeting of Creditors Whenever, by reason of a vacancy in the office of trustee, or for any other cause, it becomes necessary to call a special meeting of the creditors in order to carry out the purposes of the act, the court may call such a meeting, specifying in the notice the purpose for which it is called. Rule XXVI — Accounts of Referee Every referee shall keep an accurate account of his travel- ing and incidental expenses, and of those of any clerk or other officer attending him in the performance of his duties in any case which may be referred to him; and shall make return of the same under oath to the judge, with proper vouchers when vouchers can be procured, on the first Tues- day in each month. Rule XXVII — Review by Judge When a bankrupt, creditor, trustee, or other person shall desire a review by the judge of any order made by the referee, he shall file with the referee his petition therefor, setting out the error com;^lained of; and the referee shall forthwith certify to the judge the question presented, a summary of the evidence relating thereto, and the finding and order of the referee thereon. 730 ORDERS IN BANKRUPTCY [Rules XXVIII-XXX Rule XXVIII — Redemption of Property and Compounding of Claims Whenever it may be deemed for the benefit of the estate of a bankrupt to redeem and discharge any mortgage or other pledge^ or deposit or lien, upon any property, real or personal, or to relieve said property from any conditional contract, and to tender performance of the conditions thereof, or to compound and settle any debts or other claims due or belonging to the estate of the bankrupt, the trustee, or the bankrupt, or any creditor who has proved his debt, may file his petition therefor; and thereupon the court shall appoint a suitable time and place for the hearing thereof, notice of which shall be given as the court shall direct, so that all creditors and other persons interested may appear and show cause, if any they have, why an order should not be passed by the court upon the petition au- thorizing such act on the part of the trustee. Rule XXIX — Payment of Moneys Deposited No moneys deposited as required by the act shall be drawn from the depository unless by check or warrant signed by the clerk of the court, or by a trustee, and countersigned by the judge of the court, or by a referee designated for that purpose, or by the clerk or his assistant under an order made by the judge, stating the date, the sum, and the account for which it is drawn; and an entry of the substance of such check or warrant, with the date thereof, the sum drawn for, and the account for which it is drawn shall be forthwith made in a book kept for that purpose by the trustee or his clerk; and all checks and drafts shall be en- tered in the order of time in which they are drawn, and shall be numbered in the case of each estate. A copy of this general order shall be furnished to the depository, and also the name of any referee or clerk authorized to countersign said checks. Rule XXX — Imprisoned Debtor If, at the time of preferring his petition, the debtor shall be imprisoned, the court, upon application, may order him Rules XXXI-XXXIII] ORDERS IN BANKRUPTCY 731 to be produced upon habeas corpus, by the jailer or any officer in whose custody he may be, before the referee, for the purpose of testifying in any matter relating tp his bank- ruptcy; and, if committed after the filing of his petition upon process in any civil action founded upon a claim provable in bwkruptcy, the court may, upon hke application, discharge him from such imprisonment. If the petitioner, during the pendency of the proceedings in baijkruptey, be arrested or imprisoned upon process in any civil action, the District Court, upon his application, may issue a writ of habeas corpus to bring him before the court to ascertain whether such process has been issued for the collection of any claim provable in bankruptcy, and if so provable he shall be discharged; if not, he shall be remanded to the custody in which he may lawfully be. Before granting the order for discharge the court shall cause notice to be served upon the creditor or his attorney, so as to give him an opportunity of appearing and being heard before the grant- ing of the order. Rule XXXI — Petition for Discharge The petition of a bankrupt for a discharge shall state concisely, in accordance with the provisions of the act and the orders of the court, the proceedings in the case and the acts of the bankrupt. Rule XXXII — Opposition to Discharge or Composition A creditor opposing the application of a bankrupt for his discharge, or for the confirination of a composition, sljall enter his appearance in opposition thereto on the day when the creditors are required to show cause, and shall file a specification in writing of the grounds of his opposition within ten days thereafter, unless the time shall be enlarged by special order of the judge. Rule XXXIU— Arbitration Whenever a trustee shall make application to the court for authority to submit a controversy arising in the settle- 1S^ ORDERS m BAIfK&UPTCY [Rules XXXIV, XXXV ment of a demand against a bankrupt's estate, or for a debt due to it, to the determination of arbitrators or for authority to compound and settle such controversy by agreement with the other party, the application shall clearly and dis- tinctly set forth the subject-matter of the controversy, and the reasons why the trustee thinks it proper and most for the iliterest of the estate that the controversy should be settled by arbitration or otherwise. Rule XXXIV — Costs in Contested Adjudications In cases of involuntary bankruptcy, when the debtor resists an adjudication, and the court, after hearing, adjudges the debtor a bankrupt, the petitioning creditor shall recover, and be paid out of the estate, the same costs that are allowed to a party recovering in a suit in equity; and if the petition is dismissed, the debtor shall recover like costs against the petitioner. Rule XXXV — Compensation of Clerks, Referees, and Trustees (1) The fees allowed by the act to clerks shall be in full compensation for all services performed by them in regard 'to filing petitions or other papers required by the act to be filed with them, or in certifying or delivering papers or copies of records to referees or other ofiicers, or in receiving or paying out money; but shall not include copies furnished to other persons, or expenses necessarily incurred in pub- lishing or mailing notices or other papers. (2) The compensation of referees, prescribed by the act, shall be in full compensation for all services performed by them under the act, or xmder these general orders; but shall not include expenses necessarily incurred by them in pub- Ushing or mailing notices, in traveling, or in perpetuating testimony, or other expenses necessarily incurred in the performance of their duties under the act, and allowed by special order of the judge. (3) The compensation allowed to trustees by the act shall be in full compensation for the services performed by them; fluleXXXVI] ORDERS IN BANKRUPTCY 733 but shall not include expenses necessarily incurred in the performance of their duties and allowed upon the settlement of their accounts. (4) In any case in which the fees of the clerk, referee, and trustee are not required by the act to be paid by a debtor before filing his petition to be adjudged a bankrupt, the judge, at any time during the pendency of the pro- ceedings in bankruptcy, may order those fees to be paid out of the estate; or may, after notice to the bankrupt, and satisfactory proof that he then has or can obtain the money with which to pay those fees, order him to pay them within a time specified, and, if he fails to do so, may order his pe- tition to be dismissed. He may also, pending such pro- ceedings, both in voluntary and involuntary cases, order the commissions of referees and trustees to be paid immediately after such commissions accrue and are earned. Rule XXXVI — Appeals (1) Appeals from a court of bankruptcy to a Circuit Court of Appeals, or to the Supreme Court of a Territory, shall be allowed by a judge of the court appealed from or of the court appealed to, and shall be regulated, except as other- wise provided in the act, by the rules governing appeals in equity in the courts of the United States. (2) Appeals under the act to the Supreme Court of the United States from a Circuit Court of Appeals, or from the Supreme Court of a Territory, or from the Supreme Court of the District of Columbia, or from any court of bankruptcy whatever, shall be taken withm thirty days after the judg- ment or decree and shall be allowed by a judge of the co|irt appealed from, or by a justice of the Supreme Court of the United States. (3) In every case in which either party is entitled by the act to take an appeal to the Supreme Court of the United States, the court from which the appeal lies shall, at or before the time of entering its judgment or decree, make and file a finding of the facts, and its conclusions of law thereon, stated separately; and the record transmitted to 734 ORii>Etts In bankruptcy [Rules XiXVII, XXXVIII the Supreme Court of the United States on such an appeal shall consist only of the pleadings, the judgment or decree, the finding of facts, and the conclusions of law. Rule XXXVII — General Provisions In proceedings in equity, instituted for the purpose of carrying into effect the provisions of the act or for enforcing the rights and remedies given by it, the rules of equity practice established by the Supreme Court of the United States shall be followed as nearly as may be. In proceedings at law, instituted for the same purpose, the practice and pro- cedure in cases at law shall be followed as nearly as may be. But the judge may, by special order in any case, vary the time allowed for return of process, for appearance and plead- ing, and for taking testimony and publication, and may otherwise modify the rules for the preparation of any par- ticular case so as to facilitate a speedy hearing. Rule XXXVIII— Forms The several forms annexed to these general orders shall be observed and used, with such alterations as may be necessary to suit the circumstances of any particular case. APPEAL AND REVIEW IN BANKRUPTCY Act approved July 1, 1898, vol. 30, Stat. L. 553. SECS. 24, 25 OF BANKRUPTCY ACT Sec. 24. JuKlsDiCTioN OF Appellate Couhts. — (a) The Supreme Court of the United States, the Circuit Courts of Appeals of the United States, and the Supreme Courts of the Territories, in vacation in chambers and during their re- spective terms, as now or as they may be hereafter held, are hereby invested with appellate jurisdiction of contro- versies arising in bankruptcy proceedings from the courts of bankruptcy from which they have appellate jurisdiction in other cases. The Supreme Court of the United States shall exercise a like jurisdiction from courts of bankruptcy not within any organized circuit of the United States and from the Supreme Court of the District of Columbia. (6) The several Circuit Courts of Appeal shall have juris- diction in equity, either interlocutory or final, to super- intend and revise in matter of law the proceedings of the several inferior courts of bankruptcy within their jurisdiction. Such power shall be exercised on due notice and petition by any party aggrieved. Sec. 25. Appeals and Writs of Error. — (a) That ap- peals, as in equity cases, may be taken in bankruptcy pro- ceedings from the courts of bankruptcy to the Circuit Court of Appeals of the United States, and to the Supreme Court of the Territories, in the folk)wing cases, to-wit: (1) from a judgment adjudging or refusing to adjudge the defendant a bankrupt; (2) from a judgment granting or denying a discharge; and (3) from a judgment allowing or rejecting , a debt or claim of five hundred dollars or over. Such appeal shall be taken within ten days after the judgment appealed from has been rendered, and may be heard and determined 735 736 APPEAL AND REVIEW IN BANKRUPTCY by the appellate court in term or vacation, as the case may be. (6) From any final decision of a Court of Appeals, allowing or rejecting a claim under this act, an appeal may be had under such rules and within such time as may be prescribed by the Supreme Court of the United States in the following cases and no other: (1) Where the amount in controversy exiceeds the sum of two thousand dollars, and the question involved is one which might have been taken on appeal or writ of error from the highest court of a State to the Supreme Court of the United States; or (2) Where some justice of the Supreme Court of the United States shall certify that in his opinion the deter- mination of the question or questions involved in the al- lowance or rejection of such claim is essential to a uniform construction of this act throughout the United States. (c) Trustees shall not be required to give bond when they take appeals or sue out writs of error. (d) Controversies may be certified to the Supreme Court of the United States from other courts of the United States, and the former court may exercise jurisdiction thereof and issue writs of certiorari pursuant to the provisions of the United States laws now in force or such as may be hereafter enacted. ADDENDA ADDENDA JUDICIARY ACTS JUDICIARY ACT OF SEPT. 24, 1789, AND THE AMENDMENT OF MARCH 2, 1793 An Act to establish the Judicial Courts of the United States [Sec. 1.] Be it enacted, etc. That the Supreme Court of the United States shall consist of a chief justice, and five associate justices, and four of whom shall be a quorum, and shall hold annually, at the seat of government, two sessions, the one commencing the first Monday of February, and the other the first Monday of August. That the associate jus- tices shall have precedence according to the date of their commissions, or, when the coromissions of two or more of them bear date on the same day, according to their respec- tive ages. Sec. 2. That the United States shall be, and they hereby are, divided into thirteen districts, to be limited and called as follows, to wit: one to consist of that part of the State of Massachusetts, which lies easterly of the State of New Hamp- shire, and to be called Maine district; one to consist of the State of New Hampshire, and to be called New Hampshire district; one to consist of the remaining part of the State of Massachusetts, and to be called Massachusetts district; one to consist of the State of Connecticut, and to be called Con- necticut district; one to consist of the State of New York, and to be called New York district; one to consist of the State of New Jersey, and to be called New Jersey district; one to consist of the State of Pennsylvania, and to be called Pennsylvania district; one to consist of the State of Delaware, and to, be called Delaware district; one to consist of the State oip Maryland, and to be called Maryland district; one to consist of the State of Virginia, except that part called 739 740 ADDENDA the district of Kentucky, and to be called Virginia district; one to consist of the remaining part of the State of Virginia, and to be called Kentucky district; one to consist of the State of South Carolina, and to be called South Carolina district; and one to consist of the State x)f Georgia, and to be called Georgia district. Sec. 3. That there be a court called a District Court, in each of the aforementioned districts, to consist of one judge, who shall reside in the district for which he is appointed, and shall be called a district judge, and shall hold annually four sessions, the first of which to commence as follows, to wit: in the districts of New York and of New Jersey on the first, in the district of Pennsylvania on the second, in the district of Connecticut on the third, and in the district of Delaware on the fourth, Tuesdays of November next; in the districts of Massachusetts, of Maine, and of Maryland, on the first, in the district of Georgia on the second, and in the districts of New Hampshire, of Virginia, and of Ken- tucky, on the third, Tuesdays of December next; and the other three sessions, progressively, in the respective districts, on the like Tuesdays of every third calendar month after- wards; and in the district of South Carolina, on the third Monday in March and September, the first Monday in July, and the second Monday in December, of each and every year, commencing in December next; and that the district judge shall have power to hold special courts at his dis- cretion. That the stated District Court shall be held at the places following, to wit: (Here follows a list of places where the District Court was directed to be held.) And that the special court shall be held at the same place, in each district, as the stated courts, or in districts that have two, at either of them, in the discretion of the judge, or at such other place, in the district, as the nature of the business and his discre- tion shall direct. And that, in the districts that have but one place for holding the District Court, the records thereof shall be kept at that place; and in districts that have two, at that place in each district which the judge shall ap- point. Sec. 4. That the before-mentioned districts, except those JUDICIARY ACTS 741 of Maine and Kentucky, shall be divided into three circuits, and be called the Eastern, the Middle, and the Southern Circuits. That the Eastern Circuit shall consist of the dis- tricts of New Hampshire, Massachusetts, Connecticut, and New York; that the Middle Circuit shall consist of the dis- tricts of New Jersey, Pennsylvania, Delaware, Maryland, and Virginia; and that the Southern Circuit shall consist of the districts of South Carolina and Georgia; and that there shall be held annually in each district of said circuits, two courts, which shall be called Circuit Courts, and shall consist of any two justices of the Supreme Court, and the district judge of such districts, any two of whom shall constitute a quorum: Provided, that no district judges shall give a vote in any case of appeal, or error, from his own decision; but may assign the reasons of such his decision. See. 5. That the first session of the said Circuit Court, in the several districts, shall commence at the times following, to wit: (Here follow the times and places for holding the Circuit Courts.) And the Circuit Courts shall have power to hold special sessions for the trial of criminal causes at any other time, at their discretion, or at the discretion of the Supreme Court. Sec. 6. That the Supreme Court may, by any one or more of its justices being present, be adjourned from day to day, until a quorum be convened; and that a Circuit Court may also bp adjourned from day to day by any one of its judges, or if none are present, by the marshal of the district, until a quorum be convened; and that a District Court, in case of the inability of the judge to attend at the commencement of a session, may by virtue of a written order from the said judge, directed to the marshal of the district, be adjourned by the said marshal, to such day, antecedent to the next stated session of the said court, as in the said order shall be appointed; and in case of the death of the said judge, and his vacancy not being supplied, "all process, pleadings, and proceedings, of what nature soever, pending before the said court, shall be continued of course, until the next stated session, after the appointment and acceptance of the office by his successor. 742 ADDENDA Sec. 7. That the Supreme Court and the District Courts, shall have power to appoint clerks for their respective courts; and that the clerk for each District Court shall be clerk also of the Circuit Court in such district, and each of the said clerks shall, before he enters .upon the execution of his oflBce, take the following oath or aflBrmation, to wit: (Here follows the form of oath.) And the said clerks shall also severally give bond, with sufficient sureties (to be approved of by the Supreme and District Courts respectively), to the United States, in the sum of two thousand dollars, faithfully to dis- charge the duties of his office, and seasonably to record the decrees, judgments, and determinations, of the court of which he is clerk. Sec. 8. That the justices of the Supreme Court, and the district judges, before they proceed to execute the duties of their respective offices, shall take the following oath or affirmation, to wit: "I, A. B., do solemnly swear, or affirm, that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent on me as , according to the best of my abilities and vmderstanding, agreeably to the Constitution and laws of the United States. So help me God." Sec. 9. That the District Courts shall have, exclusively of the courts of the several States, cognizance of all crimes and offenses, that shall be cognizable under the authority of the United States, committed within their respective dis- tricts, or upon the high seas; where no other punishment than whipping, not exceeding thirty stripes, a fine not ex- ceeding one hundred dollars, or a term of imprisonment not exceeding six months, is to be inflicted; and shall also have exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction, including all seizures under laws of impost, navigation, or trade, of the United States, where the seizures are made on waters which are navigable from the sea by vessels of ten or more tons burthen, within their respective districts, as well as upon the high seas; saving to suitors, in all cases, the right of a common- JUDICIAEY ACTS 743 law remedy, where the common law is competent to give it; and shall also have exclusive original cognizance of all seizures on land, or other waters than as aforesaid, made, and of all suits for penalties and forfeitures incurred, under the laws of the United States. And shall also have cog- nizance, concurrent with the courts of the several States, or the Circuit Courts, as the case may be, of all causes where an alien sues for a tort only in violation of the law of nations, or a treaty of the United States. And shall also have cog- nizance, concurrent as last mentioned, of all suits at common law, where the United States sue, and the matter in dispute amounts, exclusive of costs, to the sum or value of one hundred dollars. And shall also have jurisdiction, exclu- sively of the courts of the several States, of all suits against consuls, or vice consuls, except for offenses above the de- scription aforesaid. And the trial of issues in fact, in the District Courts, in all causes, except civil causes of admiralty and maritime jurisdiction, shall be by jury. Sec. 10. (Relatestothe jurisdiction of the District Court in Kentucky district and the District Court in Maine district.) Sec. 11. That the Circuit Courts shall have original cogni- zance, concurrent with the courts of the several States, of all suits of a ciAril nature, at common law, or in equity, where the matter in dispute exceeds, exclusive of costs, the sum or value of five hundred dollars, and the United States are plaintiffs, or petitioners; or an alien is a party, or the suit is between a citizen of the State where the suit is brought, and a citizen of another State. And shall have exclusive cognizance of all crimes and offenses cognizable under the authority of the United States, except where this act other- wise provides, or the laws of the United States shall other- wise direct, and concurrent jurisdiction with the District Courts, of the crimes and offenses cognizable therein. But no person shall be arrested in one district for trial in another, in any civil action, before a Circuit or District Court. And no civil suit shall be brought, before either of said courts, against an inhabitant of the United States, by any original process, in any other district than that whereof he is an inhabitant, or in which he shall be found at the time of 744 ADDENDA serving the writ; nor shall any District or Circuit Court, have cognizance of any suit to recover the contents of any promissory note, or other chose in action, in favor of an assignee, unless a suit might have been prosecuted in such court to recover the said contents if no assignment had been made, except in cases of foreign bills of exchange. And the Circuit Courts shall also have appellate jurisdiction from the District Courts, under the regulations and restrictions hereinafter provided. Sec. 12. That if a suit be commenced in any State court against an alien, or by a citizen of the State in which the suit is brought against a citizen of another State, and the matter in dispute exceeds the aforesaid sum or value of five hundred dollars, exclusive of costs, to be made to appear to the satisfaction of the court, and the defendant shall, at the time of entering his appearance in such State court, file a petition for the removal of the cause for trial into the next Circuit Court, to be held in the district where the suit is pending, or if in the district of Maine to the District Court next to be holden therein, or if in Kentucky district, to the District Court next to be holden therein, and offer good and sufficient surety for his entering, in such court, on the first day of its session, copies of said process against him, and also for his there appearing, and entering special bail in the cause, if special bail was originally requisite therein, it shall then be the duty of the State court to ac- cept the surety, and proceed no further in the cause; and any bail that may have been origiaally taken, shall be discharged; and the said copies being entered as aforesaid, in such court of the United States, the cause shall there proceed in the same maimer as if it had been brought there by original process. And any attachment of the goods or estate of the defendant, by the original process, shall hold the goods or estate so attached, to answer the final judg- ment, in the same manner as by the laws of such State they would have been holden to answer final judgment, had it been rendered by the court in which the suit com- menced. And if, in any action commenced in a State court the title of land be concerned, dnd the parties are citizens JUDICIARY ACTS 745 of the same State, and the matter in dispute exceeds the sum or value of five hundred dollars, exclusive of costs, the sum or value being made to appear to the satisfaction of the court, either party, before the trial, shall state to the court, and make aflSdavit if they require it, that he claims, and shall rely upon a right, or title to the land, under grant from a State, other than that in which the suit is pending, and produce the original grant, or an exempli- fication of it, except where the loss of public records shall put it out of his power, and shall move that the adverse party inform the court whether he claims a right or title to the land under a grant from the State in which the suit is pending; the said adverse party shall give such informa- tion or otherwise not be allowed to plead such grant, or give it in evidence upon the trial; and if he informs that he does claim imder such grant, the party claiming under the grant first mentioned, may then, on motion, remove the cause for trial to the next Circuit Court, to be holden in such district, or if in the district of Maine, to the court next to be holden therein; or if in Kentucky district, to the District Court next to be holden therein; but if he is the defendant, shall do it imder the same regulations as in the before-mentioned case of the removal of a cause into such court by an alien: and neither party removing the cause, shall be allowed to plead, or give evidence of, any other title than that by him stated as aforesaid, as the ground of his claim. And the trial of issues in fact in the Circuit Court shall in all suits, except those of equity, and of admiralty and maritime jurisdiction, be by jiu-y. Sec. 13. That the Supreme Court shall have exclusive jurisdiction of all controversies of a civil nature, where a State is a party, except between a State and its citizens, and except also between a State and citizens of other States, or aliens, in which latter case it shall have original, but not exclusive jurisdiction. And shall have exclusively, all such jurisdiction of suits or proceedings against ambassadors, or other public ministers, or their domestics, or domestic servants, as a court of law can have or exercise consistently with the law of nations; and original, but not exclusive 746 ADDENDA jurisdiction of all suits brought by ambassadors, or other public ministers, or in which a consul or vice consul shall be a party. And the trial of issues in fact in the Supreme Court, in all actions at law against citizens of the United States, shall be by jury. The Supreme Court shall also have appellate jurisdiction from the Circuit Courts and courts of the several States, in the cases hereinafter specially provided for: and shall have power to issue writs of pro- hibition to the District Courts, when proceeding as courts of admiralty and maritime jurisdiction, and writs of manda- mus, in cases warranted by the principles and usages of law, to any courts appointed, or persons holding office, un- der the authority of the United States. Sec. 14. That all the before-mentioned courts of the United States shall have power to issue writs of scire facias, habeas corpus, and all other writs not specially provided for by statute, which may be necessary for the exercise of their respective jurisdictions, and agreeable to the princi- ples and usages of law. And that either of the justices of the Supreme Court, as well as judges of the District Courts shall have power to grant writs of habeas' corpus for the purpose of an inquiry into the cause of commitment. Pr(y- vided, that writs of habeas corpus, shall, in no case, extend to prisoners in gaol, unless where they are in custody, un- der or by color of the authority of the United States, or are committed for trial before some court of the same, or are necessary to be brought into court to testify. See. 15. That all the said courts of the United States shall have power, in the trial of actions at law, on motion and due notice thereof being given, to require the parties to produce books or writings in their possession or power, which contain evidence pertinent to the issue, in cases and under circumstances where they might be compelled to produce the same by the ordinary rules of proceeding in chancery; and if a plaintiff shall fail to comply with such order to produce books or writings, it shall be lawful for the courts, respectively, on motion, to give the like judg- ment for the defendant as in cases of nonsuit; and if a de- fendant shall fail to comply with such order to produce • JUDICIARY ACTS 747 books or writings, it shall be lawful for the courts, respec- tively, on motion as aforesaid, to give judgment against him or her by default. Sec. 16. That suits in equity shall not be sustained in either of the courts of the United States, in any case where plain, adequate, and complete, remedy may be had at law. Sec. 17. That all the said courts of the United States shall have power to grant new trials, in cases where there has been a trial by jury, for reasons for which new trials have usually been granted in the courts of law, and shall have power to impose and administer all necessary oaths or affirmations, and to punish, by fine or imprisonment, at the discretion of said courts, all contempts of authority in any cause or hearing before the same; and to make and establish all necessary rules for the orderly conducting of business, in the said courts, provided, such rules are not repugnant to the laws of the United States. Sec. 18. That when, in a Circuit Court, judgment upon a verdict in a civil action shall be entered, execution may, on motion of either party, at the discretion of the court, and on such conditions, for the security of the adverse party, as they may judge proper, be stayed forty-two days from the time of entering judgment, to give time to file, in the clerk's office of said court, a petition for a new trial. And if such petition be there filed within said term of forty- two days, with a certificate thereon, from either of the judges of such court, that he allows the same to be filed, which certificate he may make or refuse at hisj discretion, execution shall, of course, be further stayed % the next session of said court. And if a new trial be granted, the former judgment shall be thereby rendered void. Sec. 19. That it shall be the duty of Circuit Courts, in causes in equity, and of admiralty and maritime jurisdiction, to cause the facts on which they found their sentence or decree, fully to appear upon the record, either from the pleadings and decree itself, or a state of the case agreed by the parties, or their counsel, or, if thdy disagree, by a stating of the case by the court. Sec. 20. That where, in a Circuit Court, a plaintiff in an 748 ADDENDA action, originally brought there, or a petitioner in equity, other than the United States, recovers less than the sum or value of five hundred dollars, or a libellant, upon his own appeal, less than the sum or value of three hundred dollars, he shall not be allowed, but at the discretion of the court, may be adjudged to pay costs. Sec. 21. That from final decrees in a District Court, in causes of admiralty and maritime jurisdiction, where the matter in dispute exceeds the sum or value of three hun- dred dollars, exclusive of costs, an appeal shall be allowed to the next Circuit Court, to be held in such district. Pro- vided, nevertheless, that all such appeals from final decrees as aforesaid, from the District Court of Maine, shall be made to the Circuit Court next to be holden after each appeal in the district of Massachusetts. Sec. 22. That final decrees and judgments, in civil actions in a District Court, where the matter in dispute exceeds the sum or value of fifty dollars, exclusive of costs, may be re-examined, and reversed, or afiirmed, in a Circuit Court holden in the same district, upon a writ of error, whereto shall be annexed and returned therewith, at the day and place therein mentioned, an authenticated transcript of the record, and assignment of errors, and prayer for re- versal, with a citation to the adverse party, signed by the judge of such District Court, or a justice of the Supreme Court, the adverse party having at least twenty days' notice. And upon a like process, may final judgments and decrees in civil actions, and suits in equity in a Circuit Court, brought there by original process, or removed there from courts of the several States, or removed there by appeal from a District Court, where the matter in dispute exceeds the sum or value of two thousand dollars, exclusive of costs, be re- examined and reversed, or affirmed, in the Supreme Court, the citation being in such case signed by a judge of such Circuit Court, or justice of the Supreme Court, and the adverse party having at least thirty days' notice. But there shall be no reversal in either court on such writ of error, for error in ruling any plea in abatement, other than a plea to the jurisdiction of the court, or such plea to a JUDICIABY ACTS 749 petition or bill in equity, as in the nature of a demurrer, or for any error in fact. And writs of error sliall not be brought but within five years after rendering or passing the judgment or decree complained of, or in case the person entitled to such writ of error be an infant, femme covert, non compos mentis, or imprisoned, then within five years as aforesaid, exclusive of the time of such disability. And every justice, or judge, signing a citation on any writ of error as aforesaid, shall take good and sufficient security, that the plaintiff in error shall prosecute his writ to effect and answer all damages and costs, if he fail to make his plea good. Sec. 23. That a writ of error as aforesaid, shall be a supersedeas and stay execution, in cases only where the writ of error is served, by a copy thereof being lodged for the adverse party, in the clerk's office, where the record remains, within ten days, Sundays exclusive, after ren- dering the judgment or passing the decree complained of. Until the expiration of which term of ten days, executions shall not issue in any case where a writ of error may be a supersedeas; and where, upon such writ of error, the Supreme or a Circuit Court shall affirm a judgment or decree, they shall adjudge or decree to the respondent in error just damages for his delay, and single or double costs at their discretion. Sec. 24. That when a judgment or decree shall be re- versed in a Circuit Court, such court shall proceed to render such judgment, or pass such decree, as the District Court should have rendered or passed; and the Supreme Court shall do the same on reversals therein, except where the reversal is in favor of the plaintiff or petitioner in the original suit, and the damages to be assessed, or matter to be de- creed, are uncertain, in which case they shall remand the cause for a final decision. And the Supreme Court shall not issue execution in causes that are removed before them by writs of error, but shall send a special mandate to the Circuit Court, to award execution thereupon. Sec. 25. That a final judgment or decree in any suit, in the highest court of law or equity of a State in which a 750 ADDENDA decision in the suit could be had, where is drawn in question the vaUdity of a treaty or statute of, or an authority ex- ercised under, the United States, and the decision is against their validity; or where is drawn in question the validity of a statute of, or an authority exercised imder, any State, on the ground of their being repugnant to the Constitution, treaties, or laws of the United States, and the decision is in favor of such their validity, or where is drawn in question the construction of any clause of the Constitution, or of a treaty, or statute of, or commission held under the United States, and the decision is against the title, right, privilege, or exemption, specially set up or claimed by either party, under such clause of the said Constitution, treaty, statute or commission, may be re-examined and reversed or affirmed, in the Supreme Court of the United States, upon a writ of error, the citation being signed by the chief justice, or judge or chancellor, of the court, rendering or passing the judgment or decree complained of, or by a justice of the Supreme Court of the United States, in the same maimer and imder the same regulations, and the writ shall have the same effect, as if the judgment or decree complained of had been ren- dered or passed in a Circuit Court, and the proceeding upon the reversal shall also be the same, except that the Supreme Court, instead of remanding the cause for a final decision, as before provided, may at their discretion, if the cause shall have been once remanded before, proceed to a final decision of the same, and award execution. But no other error shall be assigned or regarded as a ground of reversal, in any such case as aforesaid, than such as ap- pears on the face of the record, and immediately respects the before-mentioned questions of validity or construction of the said Constitution, treaties, statutes, commissions, or authorities in dispute. Sec. 26. That in all causes brought before either of the courts of the United States, to recover the forfeiture an- nexed to any articles of agreement, covenant, bond, or other specialty, where the forfeiture, breach, or nonper- formance, shall appear by the default or confession of the defendant, or upon demurrer, the court before whom the JUDICIARY ACTS 751 action is, shall render judgment therein for the plaintiff to recover so much as is due according to equity. And when the sum for which judgment should be rendered is un- certain, the same shall, if either of the parties request it, be assessed by a jury. Sec. 27. That a marshal shall be appointed, in and for each district, for the term of four years, but shall be re- movable from office at pleasiu-e; whose duty it shall be to attend the District and Circuit Courts, when sitting therein, and also the Supreme Coiurt in the district in which that court shall sit; and to execute throughout the district, all lawful precepts directed to him, and issued under the authority of the United States, and he shall have power to command all necessary assistance in the execution of his duty, and to appoint, as there shall be occasion, one or more deputies, who shall be removable from office by the judge of the District Court, or the Circuit Court sitting within the district, at the pleasure of either. And before he enters on the duties of his office, he shall become bound for the faithful performance of the same, by himself and by his deputies, before the judge of the District Court, to the United States, jointly and severally, with two good and sufficient sureties, inhabitants and freeholders of such dis- trict to be approved by the district judge, in the sxmi of twenty thousand dollars, and shall take, before said judge, as shall also his deputies, before they enter on the duties of their appointment, the following oath of office: (Here follows the form of oath.) Sec. 28. That in all causes wherein the marshal, or his deputy, shall be a party, the writs and precepts therein shall be directed to such disinterested person as the court, or. any justice or judge thereof may appoint, and the person so appointed is hereby authorized to execute and return the same. And in case of the death of any marshal, his deputy, or deputies, shall continue in office, unless otherwise specially removed; and shall execute the same in the name of the deceased, until another marshal shall be appointed and sworn: and the defaults, or misfeasances in office of such deputy or deputies in the meantime, as well as before, shall 752 ADDENDA be adjudged a breach of the condition of the bond given, as before directed, by the marshal who appointed them; and the executor or administrator of the deceased marshal shall have like remedy for the defaults and misfeasances in office of such deputy or deputies during such interval, as they would be entitled to if the marshal had continued in life, and in the exercise of his said office, until his successor was appointed, and sworn or affirmed: And every marshal, or his deputy, when removed from office, or when the term for which the marshal is appointed shall expire, shall have power, notwithstanding, to execute all such precepts as may be in their hands, respectively, at the time of such removal or expiration of o'ffice; and the marshal shall be held answerable for the delivery to his successor of all prisoners which may be in his custody at the time of his removal, or when the term for which he is appointed shall expire, and for that purpose may retain such prisoners in his custody, until his successor shall be appointed, and qualified as the law directs. Sec. 29. That in cases punishable with death, the trial shall be had in the county where the offense was committed; or where that cannot be done without great inconvenience, twelve petit jurors at least shall be summoned from thence. And jurors in all cases to serve in the courts of the United States, shall be designated by lot or otherwise, in each State respectively, according to the mode of forming juries therein now practiced, so far as the laws of the same shall render such designation practicable, by the courts or marshals, of the United States; and the jurors shall have the same quali- fications as are requisite for jurors by the laws of the State of which they are citizens, to serve in the highest courts of law of such State, and shall be returned, as there shp,ll be occasion for them, from such parts of the district, from time to time, as the court shall direct, so as shall be most favorable to an impartial trial, and so as not to incur an unnecessary expense, or unduly to burthen the citizens of any part of the district with such services. And writs of venire facias, when directed by the court, shall issue from the clerk's office, and shall be served and returned by the JUDICIARY ACTS 753 marshal in his proper person, or by his deputy, or, in case the marshal or his deputy is not an indifferent person, or is interested in the event of the cause, by such fit person as the court shall specially appoint for that purpose, to whom they shall administer an oath or affirmation, that he will truly and impartially serve and return su£h writ. And when, from challenges, or otherwise, there shall not be a jury to determine any civil or criminal cause, the marshal or his deputy shall, by order of the court where such defect of jurors shall happen, retium jurymen de talibus drmmstan- tibus sufficient to complete the panel; and when the marshal or his deputy are disqualified as aforesaid, jurors may be returned by such disinterested person as the court shall appoint. Sec. 30. That the mode of proof by oral testimony, and examination of witnesses in open court shall be the same in all the courts of the United States, as well in the trial of causes in equity and of admiralty and maritime juris- diction, as of actions at common law. And when the testi- mony of any person shall be necessary in any civil cause depending in any district, in any court of the United States, who shall live at a greater distance from the place of trial than one hundred miles, or is bound on a voyage to sea, or is about to go out of the United States, or out of such district, and to a greater distance from the place of trial than as aforesaid, before the time of trial, or is ancient, or very infirm, the deposition of such person may be taken, de bene esse, before any justice or judge of any of the courts of the United States, or before any chancellor, justice, or judge of a Supreme or Superior Court, mayor, or chief magistrate of a city, or judge of a county court or court of common pleas of any of the United States, not being of counsel or attorney to either of the parties, or inter- ested in the event of the cause, provided that a notifi- cation from the magistrate before whom the deposition is to be taken to the adverse party, to be present at the taking of the same, and to put interrogatories, if he think fit, be first made out and served on the adverse party, or his attorney, as either may be nearest, if either is within one 48 754 ADDENDA hundred miles of the place of such caption, allowing time for their attendance after notified, not less than at the rate of one day, Sundays exclusive, for every twenty miles travel. And in causes of admiralty and maritime jurisdic- tion, or other cases of seizure, when a libel shall be filed, in which an adverse party is not named, and depositions of persons circumstanced as aforesaid, shall be taken before a claim be put in, the like notification, as aforesaid, shall be given to the person having the agency or possession of the property libelled at the time of the capture or seizure of the same, if known to the libellant. And every person de- posing as aforesaid, shall be carefully examined and cau- tioned, and sworn or affirmed to testify the whole truth, and shall subscribe the testimony by him or her given, after the same shall be reduced to writing, which shall be done only by the magistrate taking the deposition, or by the deponent in his presence. And the depositions so taken shall be retained by such magistrate, until he deliver the same with his own hand into the court for which they are taken, or shall, together with a certificate of the reasons as aforesaid, of their being taken, and of the notice, if any given to the adverse party, be by him, the said magistrate, sealed up and directed to such court, and remain imder his seal until opened in court. And any person may be com- pelled to appear and depose as aforesaid, in the same manner as to appear and testify in court. And in the trial of any cause of admiralty or maritime jurisdiction in a District Court, the decree in which may be appealed from, if either party shall suggest to and satisfy the court, that probably it will not be in his power to produce the witnesses, there testifying, before the Circuit Court, should an appeal be had and shall move that their testimony be taken down in writing, it shall be so done by the clerk of the court. And if an appeal be had, such testimony may be used on the trial of the same, if it shall appear to the satisfaction of the court, which shall try the appeal, that the witnesses are then dead, or gone out of the United States, or to a greater distance than as aforesaid, from the place where the court is sitting; or that, by reason of age, sickness, bodily in- JTTDICIART ACTS 755 firmity, or imprisonment, they are unable to travel and appear at court, but not otherwise. And unless the same shall be made to appear on the trial of any cause, with respect to witnesses whose depositions may have been taken therein, such depositions shall not be admitted or used in the cause. Provided, that nothing herein shall be construed to prevent any court of the United States from granting a dedimus potestatem, to take depositions ac- cording to common usage, when it may be necessary to prevent a failure or delay of justice; which power they shall severally possess; nor to extend to depositions taken in perpetuam rei memoriam, which, if they relate to matters that may be cognizable in any court of the United States, a Circuit Court, on application thereto made as a court of equity, may, according to the usages in chancery, direct to be taken. SecT 31. That where any suit shall be depending in any court of the United States, and either of the parties shall die before final judgment, the executor or administrator of such deceased party, who was plaintiff, petitioner, or defendant, in case the cause of action doth by law survive, shall have full power to prosecute or defend any such suit, or action, vmtil final judgment; and the defendant or de- fendants are hereby obliged to answer thereto accordingly; and the court before whom such cause may be depending, is hereby empowered and directed to hear and determine the same, and to render judgment for or against the ex- ecutor or administrator, as the case may require. And if such executor or administrator, having been duly served with a scire facias, from the office of the clerk of the court where such suit is depending, twenty days beforehand, shall neglect or refuse to become a party to the suit, the court may render judgment against the estate of the de- ceased party, in the same manner as if the executor or administrator had voluntarily made himself a party to the suit: And the executor or administrator, who shall become a party as aforesaid, shall, upon motion to the court where the suit is depending, be entitled to a continuance of the same until the next term of the said court. And if there 756 ADDENDA be two or more plaintiffs, or defendants, and one or more of them shall die, if the cause of action shall survive to the surviving plaintiff or plaintiffs, or against the surviving defendant or defendants, the writ or action shall not be thereby abated; but such death being suggested upon the record, the action shall proceed at the suit of the surviving plaintiff or plaintiffs, against the surviving defendant or defendants. Sec. 32. That no summons, writ, declaration, return, process, judgment, or other, proceedings in civil causes, in any of the courts of the United States, shall be abated, arrested, quashed, or reversed, for any defect or want of form, but the said courts respectively, shall proceed and give judgment according as the right of the cause, and matter in law, shall appear unto them without regarding any imperfections, defects, or want of form in such writ, declaration, or other pleading, return, process, judgment, or course of proceeding whatsoever, except those only in cases of demurrer, which the party demurring shall specially set down and express together, with his demurrer as the cause thereof. And the said courts, respectively, shall and may, by virtue of this act, from time to time, amend all and every such imperfections, defects, and wants of form, other than those only which the party demurring shall express as aforesaid; and may, at any time permit either of the parties to amend any defect in the process or plead- ings, upon such conditions as the said courts, respectively, shall, in their discretion, and by their rules, prescribe. Sec. 33. That for any crime or offense against the United States, the offender may, by any -justice or judge of the United States, or by any justice of the peace, or other magistrate of any of the United States, where he may be found, agreeably to the usual mode of process against of- fenders in such State, and at the expense of the United States, be arrested and imprisoned, or bailed, as the case may be, for trial before such court of the United States, as by this act has cognizance of the offense: And copies of the process shall be returned as speedily as may be into the clerk's office of such court, together with the recog- JUDICIARY ACTS 757 nizances of the witnesses, for their appearance to testify in the case; which recognizances the magistrate, before whom the examination shall be, may require on pain of imprison- ment. And if such commitment 'of the offender, or the witnesses, shall be in a district other than that in which the offense is to be tried, it shall be the duty of the judge of that district where the delinquent is imprisoned, sea- sonably to issue, and of the marshal of the same district to execute, a warrant for the removal of the offender, and the witnesses, or either of them, as the case may be, to the district in which the trial is to be had. And upon all ar- rests in criminal cases, bail shall be admitted, except where the punishment may be death, in which cases it shall not be admitted, but by the Supreme or a Circuit Court, or by a justice of the Supreme Court, or a judge of a District Court, who shall exercise their discretion therein, regarding the nature and circumstances of the offense, and of the evidence and the usages of law. And if a person committed by a justice of the Supreme, or a judge of a District Court, for an offense not pimishable with death, shall afterwards procure bail, and there be no judge of the United States in the district to take the same, it may be taken by any judge of the Supreme, or Superior Court of law of such State. Sec. 34. That the laws of the several States, except where the Constitution, treaties, or statutes, of the United States, shall otherwise require or provide, shall be regarded as rules of decision in trials at common law, in the courts of the United States, in cases where they apply. Sec. 35. That in all the courts of the United States, the parties may plead and manage their own causes personally, or by the assistance of such counsel or attorneys at law, as by the rules of the said courts, respectively, shall be permitted to manage and conduct causes therein. And there shall be appointed, in each district, a meet person, learned in the law, to act as attorney for the United States in such district, who shall be sworn, or affirmed, to the faithful execution of his office, whose duty it shall be to prosecute in such district, all delinquents, for crimes and offenses cognizable under the authority of the United 758 ADDENDA States, and all civil actions in which the United States shall be concerned, except before the Suprfeme Court, in the district in which that court shall be holden. And he shall receive as a compensation for his services, such fees as shall be taxed therefor in the respective courts before which the suits or prosecutions shall be. And there shall also be appointed a meet person learned in the law, to act as at- torney general for the United' States, who shall be sworn, or affirmed, to a faithful execution of his office; whose duty it shall be to prosecute and conduct all sxiits in the Supreme Court, in which the United States shall be concerned, and to give his advice and opinion upon questions of law, when required by the President of the United States, or when requested by the heads of any of the departments, touching any matters that may concern their departments, and shall receive such compensation for his services, as shall by law be provided. Approved September 24, 1789. THE ACT ESTABLISHING THE CIRCUIT COURTS OF APPEALS An Act to establish Circuit Courts of Appeals and to define and regulate in certain cases the jurisdiction of the courts of the United States, and for other purposes Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled. Sec. 10. That whenever on appeal or writ of error or otherwise a case coming directly from the District Court (or existing Circuit Court) shall be reviewed and determined in the Supreme Court, the cause shall be remanded to the proper District (or Circuit Court) for further proceedings to be taken in pursuance of such determination. And when- ever on appeal or writ of error or otherwise, a case coming from a Circuit Court of Appeals shall be reviewed and deter- mined in the Supreme Court, the cause shall be remanded by the Supreme Court to the proper District (or Circuit Court) for further proceedings in pursuance of such determination. Whenever, on appeal or writ of error or otherwise, a case coming from a District (or Circuit Court) shall be reviewed and determined in the Circuit Court of Appeals in a case in which the decision in the Circuit Court of Appeals is final, such cause shall be remanded to the said District (or Circuit Court) for further proceedmgs, to be there taken in pur- suance of such determination. Sec. 11. That no appeal or writ of error by which any order, judgment or decree may be reviewed in the Circuit Court of Appeals under the provisions of this act shall be taken or sued out, except within six months after the entry of the order, judgment or decree sought to be reviewed: Provided, however, that in all cases in which a lesser time is now by law limited for appeals or writs of error, such' limits of time shall apply to appeals or writs of error in 759 760 ADDENDA such cases taken to or sued out from the Circuit Courts of Appeals. And all provisions of law now in force regulating the methods and system of review, through appeals or writs of error, shall regulate the method and system of appeals and writs of error provided for in this act in respect of the Circuit Courts of Appeals, including all provisions for bonds or other securities to be required and taken on such appeals and writs of error (the remaining portion of the section is now Sec. 132, Judicial Code). Note. All the Act of March 3d, 1891 (26 Stat. L. 826), except Section 10 and the foregoing from Section 11 appears to have been superseded by the Judicial Code Act of March 3d, 1911 (36 Stat. L., ch. 231, U. S. Comp. Stat. Supp. 1911, p. 128). AN ACT TO DIMINISH THE EXPENSE OF PROCEEDINGS ON APPEAL AND WRIT OF ERROR OR OF CERTIORARI Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That in any cause or proceeding wherein the final judgment or decree is sought to be reviewed on appeal to, or by writ of error from, a United States Circuit Court of Appeals the appellant or plaintiff in error shall cause to be printed under such rules as the lower court shall prescribe, and shall file in the ofllce of the clerk of such Circuit Court of Appeals at least twenty days before the case is called for argument therein, at least twenty-five printed transcripts of the record of the lower court, and of such part or abstract of the proofs as the rules of such Circuit Court of Appeals may require, and in such form as the Supreme Court of the United States shall by rule prescribe, one of which printed transcripts shall be certified under the hand of the clerk of the lower court and under the seal thereof, and shall furnish three copies of such printed transcript to the adverse party at least twenty days before such argument: Provided, That either the court below or the Circuit Court of Appeals may order any original doctmient or other evidence to be sent up in addition to the printed copies of the record or in lieu of printed copies of a part thereof; and no written or tj^jewritten transcript of the record shall be required. Sec. 2. That in any cause or proceeding wherein the final judgment or decree is sought to be reviewed on appeal to or by writ of error or of certiorari from the Supreme Court of the United States, in which the record has been printed and used upon the hearing in the court below and which substantially conforms to the printed record in said Supreme Court, if there have been at the time of filing the record in the court below / 761 762 ADDENDA twenty-five copies of said printed record, in addition to those provided in the preceding section, lodged with the clerk of the court below, one copy thereof shall be used by the clerk of the court below in the preparation and as a part of the transcript of the record of the court below; and no fee shall be allowed the clerk of the court below in the preparation of the tran- script for such part thereof as is included in said printed rec- ord so lodged with him. And the clerk of the court below in transmitting the transcript of record to the Supreme Court of the United States for review shall at the same time trans- mit the remaining uncertified copies of the printed record so lodged with him, which shall be used in the preparation and as a part of the printed record in the Supreme Court of the United States, and the clerk's fee for preparing the record for the printer, indexing the same, supervising the printing and binding and distributing the copies shall be at such rate per folio thereof, exclusive of the printed record so furnished by the clerk of the court below, as the Supreme Court of the United States may from time to time by rule prescribe; and no written or typewritten transcript of so much of the record as shall have been printed as herein provided shall be re- quired. Approved, February 13, 1911. Note. The Act of Feb. 13th, 1911 (36 Slat. L. 901, oh. 47, V. S. Comp. Slats. Supp. 1911, p. 275) to diminiah the expense of proceedings on appeal, etc., repeals the table of fees prescribed by the Supreme Court as to the fees of the clerk in the cases where appellant causes the transcript of the record to be printed and indexed in the court below and uses those records in the appellate court as allowed by the act, and in such cases the clerk of the Circuit Court of Appeals can make no charge for preparing the record for the printer, etc. Bainey v. W. K. Grace Company, 231 U. S. 703, decided January 5, 1914. AN ACT TO CODIFY, REVISE AND AMEND THE LAWS RELATING TO THE JUDI- CIARY Be it enacted by the Senate and House of Representative of the United States of America in Congress assembled, That the laws relating to the judiciary be, and they hereby are, codi- fied, revised, and amended, with title, chapters, head-notes, and sections, entitled, numbered, and to read as follows: TITLE The Judiciabt Chapter One district courts — organization Sec. 1. District courts established; appointment and residence of judges. 2. Salaries of district judges. 3. Clerks. 4. Deputy clerks. 5. Criers and bailiffs. 6. Records; where kept. 7. Effect of altering terms. 8. Trials not discontinued by new term. 9. Court always open as courts of admir^ty and equity. 10. Monthly adjoinaments for trial of criminal causes. 11. Special terms. 12. Adjournment in case of non- attendance of judge. 13. Designation of anotheJ judge in case of disability of judge. 14. Designation of another judge in case of an accumulation of business. Sec. 1. In each of the districts described in chapter five, there shall be a court called a district court, for which there 763 Sec. 15. When designation to be made by Chief Justice. 16. New appointment and revoca- tion. 17. Designation of district judge in aid of another judge. 18. When circuit judge may be designated to hold district court. 19. Duty of district and circuit judge in such cases. 20. When district judge is inter- ested or related to parties. 21. When affidavit of personal bias or prejudice of judge is filed. 22. Continuance in case of va- cancy ia office. 23. Districts having more than one judge; division of busi- ness. 764 , ADDENDA shall be appointed one judge, to be called a district judge; except that in the northern district of California, the northern district of Illinois, the district of Maryland, the district of Minnesota, the district of Nebraska, the district of New- Jersey, the eastern district of New York, the northern and southern districts of Ohio, the district of Oregon, the eastern and western districts of Pennsylvania, and the western dis- trict of Washington, there shall be an additional district judge in each, and in the southern district of New York, three additional district judges: Provided, That whenever a vacancy shall occur in the office of the district judge for the district of Maryland, senior in commission, such vacancy shall not be filled, and- thereafter there shall be but one dis- trict judge in said district: Provided further, That there shall be one judge for the eastern and western districts of South Carolina, one judge for the eastern and middle districts of Tennessee, and one judge for the northern and southern dis- tricts of Mississippi: Provided further, That the district judge for the middle district of Alabama shall continue as hereto- fore to be a district judge for the northern district thereof. Every district judge shall reside in the district or one of the districts for which he is appointed, and for offending against this provision shall be deemed guilty of a high misdemeanor. Sec. 2. Each of the district judges shall receive a salary of six thousand dollars a year, to be paid in monthly install- ments. Sec. 3. A clerk shall be appointed for each District Court by the judge thereof, except in cases otherwise provided for by law. Sec. 4. Except as otherwise specially provided by law, the clerk of the District Court for each district may, with the approval of the district judge thereof, appoint such number of deputy clerks as may be deemed necessary by such judge, who may be designated to reside and maintain offices at such places of holding court as the judge may determine. Such deputies may be removed at the pleasure of the clerk ap- pointing them, with the concurrence of the district judge. In case of the death of the clerk, his deputy or deputies shall, unless removed, continue in office and perform the duties of AN ACT TO CODIFY, ETC. 765 the clerk, in his name, until a clerk is appointed and qualified; and for the default or misfeasances in office of any such deputy, whether in the lifetime of the clerk or after his death, the clerk and his estate and the sureties on his official bond shall be liable; and his executor or administrator shall have such remedy for any such default or misfeasances com- mitted after his death as the clerk would be entitled to if the same had occurred in his lifetime. Sec. 5. The District Court for each district may appoint a crier for the court; and the marshal may appoint such num- ber of persons, not exceeding five, as the judge may deter- mine, to wait upon the grand and other jm-ies, and for other necessary purposes. Sec. 6. The records of a District Court shall be kept at the place where the court is held. When it is held at more than one place in any district and the place of keeping the records is not specially provided by law, they shall be kept at either of the places of holding the court which may be designated by the district judge Sec. 7. No action, suit, proceeding, or process in any District Court shall abate or be rendered invaUd by reason of any act changing the time of holding such court, but the same shall be deemed to be returnable to, pending, and triable in the terms established next after the return day thereof. Sec. 8. When the trial or hearing of any cause, civil or crimuial, in a District Court has been commenced and is in progress before a jury or the com^;, it shall not be stayed or discontinued by the arrival of the time fixed by law for an- other session of said court; but the court may proceed therem and bring it to a conclusion in the same manner and with the "same effect as if another stated term of the court had not intervened. Sec. 9. The District Courts, as courts of admiralty and as courts of equity, shall be deemed always open for the pur- pose of filing any pleading, of issumg and retummg mesne and final process, and of making and directing all interlocu- tory motions, orders, rules, and other proceedings prepara- tory to the hearing, upon their merits, of all causes pending 766 ADDENDA therein. Any district judge may, upon reasonable notice to the parties, make, direct, and award, at chambers or in the clerk's office, and in vacation as well as in term, all such process, commissions, orders, rules, and other proceedings, whenever the same are not grantable of course, according to the rules and practice of the court. Sec. 10. District Courts shall hold monthly adjournments of their regular terms, for the trial of criminal causes, when their business requires it to be done, in order to prevent imdue expenses and delays in such cases. Sec. 11. A special term of any District Court may be held at the same place where any regular term is held, or at such other place in the districl; as the nature of the business may require, and at such time and upon such notice as may be ordered by the district judge. Any business may be trans- acted at such special term which might be transacted at a regular term. Sec. 12. If the judge of any District Court is unable to attend at the commencement of any regular, adjourned, or special term, or any time during such term, the court may be adjom-ned by the marshal, or clerk, by virtue of a written order directed to him by the judge, to the next regular term, or to any earlier day, as the order may direct. Sec. 13. When any district judge is prevented, by any disability, from holding any stated or appointed term of his District Court, and that fact is made to appear by the certificate of the clerk, under the seal of the court, to any circuit judge of the circuit in which the district lies, or, in the absence of all the circuit judges, to the circuit justice of the circuit in which the district lies, any such circuit judge or justice may, if in his judgment the public interests so re- quire, designate and appoint the judge of any other district in the same circuit to hold said, court, and to discharge all the judicial duties of the judge so disabled, during such disability. Whenever it shall be certified by any such circuit judge or, in his absence, by the circuit justice of the circuit in which the district lies, that for any sufficient reason it is impracticable to designate and appoint a judge of another district within the circuit to perform the duties of such disabled judge, AN ACT TO CODIFY, ETC. 767 the chief justice may, if in his judgment the public interests so require, designate and appoint the judge of any district in another circuit to hold said court and to discharge all the judicial duties of the judge so disabled, during such disability. Such appointment shall be filed in the clerk's office, and entered on the minutes of the said District Court, and a certified copy thereof, under the seal of the court, shall be transmitted by the clerk to the judge so designated and appointed. Sec. 14. When, from the accumulation or urgency > of business in any District Court, the public interests require the designation and appointment hereinafter provided, and the fact is made to appear, by the certificate, of the clerk, imder the seal of the court, to any circuit judge of the circuit in which the district lies, or, in the absence of all the circuit judges, to the circuit justice of the circuit in which the district lies, such circuit judge or justice may designate and appoint the judge of any other district in the same circuit to have and exercise within the district first named the same powers that are vested in the judge thereof. Each of the said district judges may, in case of such appointment, hold separately at the same time a District Court in such district, and discharge all the judicial duties of the district judge therein. Sec. 15. If all the circuit judges and the circuit justice are absent from the circuit, or are unable to execute the provi- sions of either of the two preceding sections, or if the district judge so designated is disabled or neglects to hold the court and transact the business for which he is designated, the clerk of the District Court shall certify the fact to the Chief Justice of the United States, who may thereupon designate and appoint in the manner aforesaid the judge of any dis- trict within such circuit or within any other circuit; and said appointment shall be transmitted to the clerk and be acted upon by him as directed in the preceding section. Sec. 16. Any such circuit judge, or circuit justice, or the Chief Justice, as the case may be, may, from time to time, if in his judgment the public interests so require, make a new designation and appointment of any other district judge, in 768 ADDENDA the manner, for the duties, and with the powers mentioned in the three preceding sections, and revoke any previous designation and appointment. Sec. 17. It shall be the duty of the senior circuit judge then present in the circuit, whenever in his judgment the public interest so requires, to designate and appoint, in the manner and with the powers provided in section fourteen, the district judge of any judicial district within his circuit to hold a District Court in the place or in aid of any other district judge within the same circuit. Sec. 18. Whenever, in the judgment of the senior circuit judge of the circuit in which the district lies, or of the circuit justice assigned to such circuit, or of the Chief Justice, the public interest shall require, the said judge, or associate justice, or Chief Justice, shall designate and appoint any circuit judge of the circuit to hold said District Court. Sec. 19. It shall be the duty of the district or circuit judge who is designated and appointed under either of the six preceding sections, to discharge all the judicial duties for which he is so appointed, during the time for which he is so appointed; and all the acts and proceedings in the courts held by him, or by or before him, in pursuance of said provi- sions, shall have the same effect and validity as if done by or before the district judge of the said district. Sec. 20. Whenever it appears that the judge of any Dis- trict Court is in any way concerned in interest in any suit pending therein, or has been of counsel or is a material wit- ness for either party, or is so related to or connected with either party as to render it improper, in his opinion, for him to sit on the trial, it shall be his duty, on application by either party, to cause the fact to be entered on the records of the court; and also an order that an authenticated copy thereof shall be forthwith certified to the senior circuit judge for said circuit then present in the circuit; and thereupon such proceedings shall be had as are provided in section four- teen. Sec. 21. Whenever a party to any action or proceeding, civil or criminal, shall make and file an affidavit that the judge before whom the action or proceeding is to be tried or AN ACT TO CODIFY, ETC. 769 heard has a personal bias or prejudice either against him or in favor of any opposite party to the suit, such judge shall pro- ceed no further therein, but another judge shall be desig- nated in the manner prescribed in the section last preceding, or chosen in the manner prescribed in section twenty-three, to hear such matter. Every such affidavit shall state the facts and the reasons for the belief that such bias or preju- dice exists, and shall be filed not less than ten days before the beginning of the term of the court, or good cause shall be shown for the failure to file it within such time. No party shall be entitled in any case to file more than one such affidavit; and no such affidavit shall be filed unless accom- panied by a certificate of counsel of record that such affidavit and application are made in good faith. The same proceed- ings shall be had when the presiding judge shall file with the clerk of the court a certificate that he deems himself unable for any reason to preside with absolute impartiality in the pending suit or action. Sec. 22. When the office of judge of any District Court becomes vacant, all process, pleadings, and proceedings pend- ing before such court shall, if necessary, be continued by the clerk thereof until such times as a judge shall be appointed, or designated to hold such court; and the judge so designated, while holding such court, shall possess the powers conferred by, and be subject to the provisions contained in, section nineteen. Sec. 23. In districts having more than one district judge, the judges may agree upon the division of business and assign- ment of cases for trial in said district; but in case they do not so agree, the senior circuit judge of the circuit in which the district lies, shall make all necessary orders for the division of business and the assignment of cases for trial in said district. 49 770 ADDENDA Chapter Two DISTBICT COUKTS — ^JURISDICTION Sec. 24. Original jurisdiction. Par. 1. Where the United States are plaintiffs; and of civil suits at common law or in equity. 2. Of crimes and offenses. 3. Of admiralty causes, seizures, and prizes. 4. Of suits under any law relating to the slave trade. 5. Of cases under internal revenue, customs, and tonnage laws. 6. Of suits under postal laws. 7. Of suits under the patent, the copyright, and the trade-mark laws. 8. Of suits for violation of inter-state commerce laws. 9. Of penalties and forfeit- ures. 10. Of suits on debentures. 11. Of suits for injuries on account of acts done under laws of the United States. 12. Of suits concerning civil rights. 13. Of suits against persons having knowledge of con- spiracy, etc. 14. Of suits to redress the deprivation, under color of law, of civil rights. Sec. 24. Original jurisdiction — Con- tinued. Par. 15. Of suits to recover certain offices. 16. Of suits against nation- al-banking associations. 17. Of suits by aliens for torts. 18. Of suits against consuls and vice-consuls. 19. Of suits and proceed- ings in bankruptcy. 20. Of suits against the United States. 21. Of suits for the unlawful inclosure of public lands. 22. Of suits under immigra- tion and contract-labor laws. 23. Of suits against trusts, monopolies, and unlawful combinations. 24. Of suits concerning al- lotments of land to In- dians. 25. Of partition suits where United States is jpint tenant. 26. Appellate jurisdiction under Chinese-exclusion laws. 27. Appellate jurisdiction over Yellowstone National Park. 28. Jurisdiction of crimes on Indian reservations in South Dakota. Sec. 24. The District Courts shall have original jurisdic- tion as follows: First. Of all suits of a civil nature, at common law or in AN ACT TO CODIFY, ETC. 771 equity, brought by the United States, or by any officer thereof authorized by law to sue, or between citizens of the same State claiming lands under grants from different States; or, where the matter in controversy exceeds, exclusive of interest and costs, the sum or value of three thousand dollars, and (a) arises under the Constitution or laws of the United States, or treaties made, or which shall be made, under their authority, or (b) is between citizens of different States, or (c) is between citizens of a State and foreign States, citizens, or subjects. No District Court shall have cogni- zance of any suit (except upon foreign bills of exchange) to recover upon any promissory note or other chose in action in favor of any assignee, or of any subsequent holder if such instrument be payable to bearer and be not made by any corporation, unless such suit might have been prosecuted in such court to recover upon said note or other chose in action if no assignment had been made: Provided, however, That the foregoing provision as to the sum or value of the matter in controversy shall not be construed to apply to any of the cases mentioned in the succeeding paragraphs of this section. Second. Of all crimes and offenses cognizable under the authority of the United States. Third. Of all civil causes of admiralty and maritime juris- diction, saving to suitors in all cases the right of a common- law remedy where the conomon law is competent to give it; of all seizures on land or waters not within admiralty and maritime jurisdiction; of all prizes brought into the United States; and of all proceedmgs for the condenmation of prop- erty taken as prize. Fourth. Of all suits arising under any law relating to the slave trade. Fifth. Of all cases arising under any law providing for internal revenue, or from revenue from imports or tonnage, except those cases arising under any law providing revenue from imports, jurisdiction of which has been conferred upon the Court of Customs Appeals. Sixth. Of all cases arising under the postal laws. Seventh. Of all suits at law or in equity arising under the patent, the copyright, and the trade-mark laws. 772 ADDENDA Eighth. Of all suits and proceedings arising under any law regulating commerce, except those suits and proceedings exclusive jurisdiction of which has been conferred upon the Commerce Court. Ninth. Of all suits and proceedings for the enforcement of penalties and forfeitures incurred under any iaw of the United States. Tenth. Of all suits by the assignee of any debenture for drawback of duties, issued under any law for the collection of duties, against the person to whom such debenture was originally granted, or against any indorser thereof, to recover the amount of such debenture. Eleventh. Of all suits brought by any person to recover damages for any injury to his person or property on account of any act done by him, under any law of the United States, for the protection or collection of any of the revenues thereof, or to enforce the right of citizens of the United States to vote in the several States. Twelfth. Of all suits authorized by law to be brought by any person for the recovery of damages on account of any injury to his person or property, or of the deprivation of any right or privilege of a citizen of the United States, by any act done in furtherance of any conspiracy mentioned in section nineteen hundred and eighty. Revised Statutes. Thirteenth. Of all suits authorized by law to be brought against any person who, having knowledge that any of the wrongs mentioned in section nineteen hundred and eighty. Revised Statutes, are about to be done, and, having power to prevent or aid in preventing the same, neglects or refuses so to do, to recover damages for any such wrongful act. Fourteenth. Of all suits at law or in equity authorized by law to be brought by any person to redress the deprivation, under color of any law, statute, ordinance, regulation, cus- tom, or usage of any State, of any right, privilege, or im- munity, secured by the Constitution of the United States, or of any right secured by any law of the United States providing for equal rights of citizens of the United States, or of all persons within the jurisdiction of the United States. 773 Fifteenth. Of all suits to recover possession of any office, except that of elector of President or Vice President, Repre- sentative in or Delegate to Congress, or member of a State legislature, authorized by law to be brought, wherein it appears that the sole question touching the title to such office arises out of the denial of the right to vote to any citizen offering to vote, on account of race, color, or previous condi- tion of servitude: Provided, That such jurisdiction shall ex- tend only so far as to determine the rights of the parties to such office by reason of the denial of the right guaranteed by the Constitution of the United States, and secured by any law, to enforce the right of citizens of the United States to vote in all the States. Sixteenth. Of all cases commenced by the United States, or by direction of any officer thereof, against any national banking association, and cases for winding up the affairs of any such bank; and of all suits brought by any banking association established in the district for which the court is held, under the provisions of title "National Banks," Re- vised Statutes, to enjoin the Comptroller of the Currency, or any receiver acting under his direction, as provided by said title. And all national banking associations established under the laws of the United States shall, for the purposes of all other actions by or against them, real, personal, or mixed, and all suits in equity, be deemed citizens of the States in which they are respectively located. Seventeenth. Of all suits brought by any alien for a tort only, in violation of the laws of nations or of a treaty of the United States. Eighteenth. Of all suits against consuls and vice consuls. Nineteenth. Of all matters and proceedings in bank- ruptcy. Twentieth. Concurrent with the Court of Claims, of all claims not exceeding ten thousand dollars founded upon the Constitution of the United States or any law of Congress, or upon any regulation of an Executive Department, or upon any contract, express or implied, with the Government of the United States, or for damages, Uquidated or unliquidated, in cases not sounding in tort, in respect to which claims the 774 ADDENDA party would be entitled to redress against the United States, either in a court of law, equity, or admiralty, if the United States were suable, and of all set-offs, counterclaims, claims for damages, whether liquidated or unhquidated, or other demands whatsoever on the part of the Government of the United States against any claimant against the Government in said court: Provided, however, That nothing in this para- graph shall be construed as giving to either the District Courts or the Court of Claims jurisdiction to hear and deter- mine claims growing out of the late Civil War, and com- monly known as "war claims," or to hear and determine other claims which had been rejected or reported on adversely prior to the third day of March, eighteen hundred and eighty- seven, by any court, department, or commission authorized to hear and determine the same, or to hear and determine claims for pensions; or as giviiig to the District Courts jurisdiction of cases brought to recover fees, salary, or com- pensation for official services of officers of the United States or brought for such purpose by persons claiming as such officers or as assignees or legal representatives thereof; but no suit pending on the twenty-seventh day of June, eighteen hundred and ninety-eight, shall abate or be affected by this provision: And -provided further, That no suit against the Government of the United States shall be allowed under this paragraph unless the same shall have been brought within six years after the right accrued for which the claim is made: Provided, That the claims of married women, first accrued during marriage, of persons under the age of twenty- one years, first accrued during minority, and of idiots, lunatics, insane persons, and persons beyond the seas at the time the claim accrued, entitled to the claim, shall not be barred if the suit be brought within three years after the disability has ceased; but no other disability than those enumerated shall prevent any claim from being barred, nor shall any of the said disabilities operate cumulatively. All suits brought and tried under the provisions of this para- graph shall be tried by the court without a jury. Twenty-first. Of proceedings in equity, by writ of in- junction, to restrain violations of the provisions of laws of the AN ACT TO CODIFY, ETC. 775 United States to prevent the unlawful inclosure of public lands; and it shall be sufficient to give the court jurisdiction if service of original process be had in any civil proceeding on any agent or employee having charge or control of the in- closure. Twenty-second. Of all suits and proceedings arising under any law regulating the immigration of aliens, or under the contract labor laws. Twenty-third. Of all suits and proceedings arising imder any law to protect trade and commerce against restraints and monopolies. Twenty-fourth. Of all actions, suits, or proceedings in- volving the right of any person, in whole or in part of Indian blood or descent, to any allotment of land under any law or treaty. Twenty-fifth. Of suits in equity brought by any tenant in common or joint tenant for the partition of lands in cases where the United States is one of such tenants in common or joint tenants, such suits to be brought in the district in which such land is situate. Sec. 25. The District Courts shall have appellate juris- diction of the judgments and orders of United States com- missioners in cases arising under the Chinese exclusion laws. Sec. 26. The District Court for the district of Wyoming shall have jurisdiction of all felonies committed within the Yellowstone National Park and appellate jurisdiction of judgments in cases of conviction before the commissioner authorized to be appointed under section five of an Act entitled "An Act to protect the birds and animals in Yellow- stone National Park, and to punish crimes in said Park, and for other purposes," approved May seventh, eighteen hun- dred and ninety-four. Sec. 27. The District Court of the United States for the district of South Dakota shall have jurisdiction to hear, try, and determine all actions and proceedings in which any person shall be charged with the crime of murder, man- slaughter, rape, assault with intent to kill, arson, burglary, larceny, or assault with a dangerous weapon, committed 776 ADDENDA within the hmits of any Indian reservation in the State of South Dakota. Chapter Three district courts — removal op causes Sec. Sec. 28. Removal of suits from State 34. Removal of suits by aliens. to United States District 35. When copies of records are re- Courts, fused by clerk of State 29. Procedure for removal. court. 30. Suits under grants of land 36. Previous attachment bonds, from different States. orders, etc., remain valid. 31. Removal of causes against 37. Suits improperly in District persons denied any civil Court may be dismissed or rights, etc. remanded. 32. When petitioner is in actual 38. Proceedings in suits removed. custody of State court. 39. Time for filing record; return 33. Suits and prosecutions against of record, how enforced. revenue officers, etc. Sec. 28. Any suit of a civil nature, at law or in equity, arising under the Constitution or laws of the United States, or treaties made, or which shall be made, under their author- ity, of which the District Courts of the United States are given original jurisdiction by this title, which may now be pending or which may hereafter be brought, in any State court, may be removed by the defendant or defendants therein to the District Court of the United States for the proper district. Any other suit of a civil nature, at law or in equity, of which the District Courts of the United States are given jurisdiction by this title, and which are now pending or which may hereafter be brought, in any State court, may be removed into the District Court of the United States for the proper district by the defendant or defendants therein, being non-residents of that State. And when in any suit men- tioned in this section there shall be a controversy which is wholly between citizens of different States, and which can be fully determined as between them, then either one or more of the defendants actually interested in such controversy may remove said suit into the District Court of the United States AN ACT TO CODIFY, ETC. 777 for th^ proper district. And where a suit is now pending, or may hereafter be brought, in any State court, in which there is a controversy between a citizen of the State in which the suit is brought and a citizen of another State, any defendant, being such citizen of another State, may remove such suit into the District Court of the United States for the proper district,-at any time before the trial thereof, when it shall be made to appear to said District Court that from prejudice or local influence he will not be able to obtain justice in such State court, or in any other State court to which the said defendant may, under the laws of the State, have the right, on account of such prejudice or local influence, to remove said cause: Provided, That if it further appear that said suit can be fully and justly determined as to the other defendants in the State court, without being affected by such prejudice or local influence, and that no party to the suit will be prej- udiced by a separation of the parties, said District Court may direct the suit to be remanded, so far as relates to such other defendants, to the State court, to be proceeded with therein. At any time before the trial of any suit which is now pending in any District Court, or may hereafter be entered therein, and which has been removed to said court from a State court on the affidavit of any party plaintiff that he had reason to believe and did believe that, from prejudice or local influence, he was unable to obtain justice in said State court, the District Court shall, on application of the other party, examine into the truth of said affidavit and the grounds thereof, and, unless it shall appear to the satisfaction of said court that said party will not be able to obtain justice in said State court, it shall cause the same to be remanded thereto. Whenever any cause shall be removed from any State court into any District Court of the United States, and the District Court shall decide that the cause was improperly removed, and order the same to be remanded to the State court from whence it came, such remand shall be immediately carried into execution, and no appeal or writ of error from the decision of the District Court so remanding such cause shall be allowed: Provided, That no case arising under an Act entitled "An Act relating to the liability of common carriers 778 ADDENDA by railroad to their employees in certain cases," apptoved April twenty-second, nineteen hundred and eight, or any amendment thereto, and brought in any State court of com- petent jurisdiction shall be removed to any court of the ■United States. Sec. 29. Whenever any party entitled to remove any suit mentioned in the last preceding section, except suits re- movable on the ground of prejudice or local influence, may desire to remove such suit from a State court to the District Court of the United States, he may make and file a petition, duly verified, in such suit in such State court at the time, or any time before the defendant is required by the laws of the State or the rule of the State court in which such suit is brought to answer or plead to the declaration or complaint of the plaintiff, for the removal of such suit into the District Court to be held in the district where sucii suit is pending, and shall make and file therewith a bond, with good and sufficient surety, for his or their entering in such District Court, within thirty days from the date of filing said petition, a certified copy of the record in such suit, and for paying all costs that may be awarded by the said District Court if said District Court shall hold that such suit was wrongfully or improperly removed thereto, and also for their appearing and entering special bail in such suit if special bail was originally requisite therein. It shall then be the duty of the State court to accept said petition and bond and proceed no further in such suit. Written notice of said petition and bond for removal shall be given the adverse party or parties prior to filing the same. The said copy being entered within said thirty days as aforesaid in said District Court of the United States, the parties so removing the said cause shall, within thirty days thereafter, plead, answer, or demur to the declaration or complaint in said cause, and the cause shall then proceed in the same manner as if it had been originally commenced in the said District Court. Sec. 30. If in any action commenced in a State court the title of land be concerned, and the parties are citizens of the same State and the matter in dispute exceeds the sum or value of three thousand dollars, exclusive of interest and AN ACT TO CODIFY, ETC. 779 costs, the sum or value being made to appear, one or more of the plamtiffs or defendants, before the trial, may state to the court, and make affidavit if the court require it, that he or they claim, and shall rely upon, a right or title to the land under a grant from a State, and produce the original grant, or an exemplification of it, except where the loss of public records shall put it out of his or their power, and shall move that any one or more of the adverse party inform the court whether he or they claim a right or title to the land under a grant from some other State, the party or parties so required shall give such, information, or otherwise not be allowed to plead such grant or give it in evidence upon the trial. If he or they inform the court that he or they do claim under such grant, any one or more of the party moving for such information may then, on petition and bond, as hereinbefore mentioned in this chapter, remove the cause for trial to the District Court of the United States next to be holden m such district; and any one of either party removing the cause shall not be allowed to plead or give evidence of any other title than that by him or them stated as aforesaid as the ground of his or their claim. Sec. 31. When any civil suit or criminal prosecution is commenced in any State court, for any cause whatsoever, agamst any person who is denied or cannot enforce in the judicial tribunals of the State, or in the part of the State where such suit or prosecution is pending, any right secured to him by any law providing for the equal civil rights of citizens of the United States, or of all persons within the jurisdiction of the United States, or against any officer, civil or military, or other person, for any arrest or imprisonment or other trespasses or wrongs made or committed by virtue of or under color of authority derived from any law providing for equal rights as aforesaid, or for refusing to do any act on the ground that it would be inconsistent with such law, such suit or prosecution may, upon the petition of such defendant, filed in said State court at any time before the trial or final hearing of the cause, stating the facts and verified by oath, be removed for trial into the next District Court to be held in the district where it is pending. Upon the filing of such 780 ADDENBA petition all further proceedings in the State courts shall cease, and shall not be resumed except as hereinafter pro- vided. But all bail and other security given in such suit or prosecution shall continue in like force and effect as if the same had proceeded to final judgment and execution in the State court. It shall be the duty of the clerk of the State court to furnish such defendant, petitioning for a removal, copies of said process against him, and of all pleadings, depositions, testimony, and other proceedings in the case. If such copies are filed by said petitioner in the District Court on the first day of its session, the cause shall proceed therein in the same manner as if it had been brought there by original process; and if the said clerk refuses or neglects to furnish such copies, the petitioner may thereupon docket the case in the District Court, and the said court shall then have jurisdiction therein, and may, upon proof of such refusal or neglect of said clerk, and upon reasonable notice to the plaintiff, require the plaintiff to file a declaration, petition, or complaint in the cause; and, in case of his default, may order a nonsuit and dismiss the case at the costs of the plaintiff, and such dismissal shall be a bar to any further suit touching the matter in controversy. But if, without such refusal or neglect of said clerk to furnish such copies and proof thereof, the petitioner for removal fails to file copies in the District Court, as herein provided, a certificate, under the seal of the District Court, stating such failure, shall be given, and upon the production thereof in said State coiurt the cause shall proceed therein as if no petition for removal had bee* filed. Sec. 32. When all the acts necessary for the removal of any suit or prosecution, as provided in the preceding section, have been performed, and the defendant petitioning for such removal is in actual custody on process issued by said State court, it shall be the duty of the clerk of said District Court to issue a writ of habeas corpus cum causa, and of the marshal, by virtue of said writ, to take the body of the defendant into his custody, to be dealt with in said District Court according to law and the orders of said court, or, in vacation, of any judge thereof; and the marshal shall file with or AN ACT TO CODIFY, ETC. 781 deliver to the clerk of said State court a duplicate copy of said writ. Sec. 33. When any civil suit or criminal prosecution is commenced in any court of a State against any officer ap- pomted under or acting by authority of any revenue law of the United States now or hereafter enacted, or against any person acting under or by authority of any such officer, on account of any act done under color of his office or of 'any such law, or on account of any right, title, or authority claimed by such officer or other person under any such law; or is commenced against any person holding property or estate by title derived from any such officer, and affects the validity of any such revenue law; or when any suit is com- menced against any person for or on account of any^thing done by him while an officer of either House of Congress in the discharge of his official duty, in executmg any order of such House, the said suit or prosecution may, at any time before the trial or final hearing thereof, be removed for trial into the District Court next to be holden in the district where the same is pending, upon the petition of such defendant to said District Court, and in the following manner: Said petition shall set forth the nature of the suit or prosecution and be verified by affidavit, and, together with a certificate signed by an attorney or counselor at law of some court of record of the State where such suit or prosecution is commenced, or of the United States, stating that, as counsel for the peti- tioner, he has examined the proceedings against him and carefully inquired into all the matters set forth in the petition, and that he believes them to be true, shall be presented to the said District Court, if in session, or if it be not, to the clerk thereof at his office, and shall be filed in said office. The cause shall thereupon be entered on the docket of the District Court, and shall proceed as a cause originally commenced in that court; but all bail and other security given upon such suit or prosecution shall continue in like force and effect as if the same had proceeded to final judgment and execution in the State court. When the suit is commenced in the State court by summons, subpoena, petition, or other process except capias, the clerk of the District Court shall issue a 782 ADDENDA writ of certiorari to the State court, requiring it to send to the District Court the record and proceedings in the cause. When it is commenced by capias or by any other similar form or proceeding by which a personal arrest is ordered, he shall issue a writ of habeas corpus cum causa, a duplicate of which shall be delivered to the clerk of the State court, or left at his office, by the marshal of the district or his deputy, or by some person duly authorized thereto; and thereupon it shall be the duty of the State court to stay all further proceedings in the cause, and the suit or prosecution, upon delivery of such process, or leaving the same as aforesaid, shall be held to be removed to the District Court, and any further proceedings, trial, or judgment therein in the State court shall be void. If the defendant in the suit or prosecu- tion be in actual custody on mesne process therein, it shall be the duty of the marshal, by virtue of the writ of habeas corpus cum causa, to take the body of the defendant into his custody, to be dealt with in the cause according to law and the order of the District Court, or, in vacation, of any judge thereof; and if, upon the removal of such suit or prosecution, it is made to appear to the District Court that no copy of the record and proceedings therein in the State court can be obtained, the District Court may allow and require the plaintiff to proceed de novo and to file a declaration of his cause of action, and the parties may thereupon proceed as in actions originally brought in said District Court. On failure of the plaintiff so to proceed, judgment of non prosequitur may be rendered against him, with costs for the defendant. Sec. 34. Whenever a personal action has been or shall be brought in any State court by an alien against any citizen of a State who is, or at the time the alleged action accrued was, a civil officer of the United States, being a non-resident of that State wherein jurisdiction is obtained by the State court, by personal service of process, such action may be removed into the District Court of the United States in and- for the district in which the defendant shall have been served with the process, in the same manner as now provided for the removal of an action brought in a State court by the provi- sions of the preceding section. AN ACT TO CODIFY, ETC. 783 Sec. 35. In any case where a party is entitled to copies of the records and proceedings in any suit or prosecution in a State court, to be used in any court of the United States, if the clerk of said State court, upon demand, and the payment or tender of the legal fees, refuses or neglects to deliver to him certified copies of such records and proceedings, the court of the United States in which such records and pro- ceedings are needed may, on proof by affidavit that the clerk of said State court has refused or neglected to deliver copies thereof, on demand as aforesaid, direct such record to be supplied by affidavit or otherwise, as the circumstances of the case may require and allow; and thereupon such pro- ceeding, trial, and judgment may be had in the said court of the United States, and all such processes awarded, as if certified copies of such records and proceedings had been regularly before the said court. Sec. 36. When any suit shall be removed from a State court to a District Court of the United States, any attach- ment or sequestration of the goods or estate of the defendant had in such suit in the State court shall hold the goods or estate so attached or sequestered to answer the final judg- ment or decree in the same manner as by law they would have been held to answer final judgment or decree had it been rendered by the court in which said suit was commenced. All bonds, undertakings, or security given by either party in such suit prior to its removal shall remain valid and effectual notwithstanding said removal; and all injunctions, orders, and other proceedings had in such suit prior to its removal shall remain in full force ^nd effect until dissolved or modified by the court to which such suit shall be removed. Sec. 37. If in any suit commenced in a District Court, or removed from a State court to a District Court of the United States, it shall appear to the satisfaction of the said District Court, at any time after such suit has been brought or removed thereto, that such suit does not really and sub- stantially involve a dispute or controversy properly within the jurisdiction of said District Court, or that the parties to said suit have been improperly or coUusively made or joined, either as plaintiffs or defendants, for the purpose of 784 ADDENDA creating a case cognizable or removable under this chapter, the said District Court shall proceed no further therein, but shall dismiss the suit or remand it to the court from which it was removed, as justice may require, and shall make such order as to costs as shall be just. Sec. 38. The District Court of the United States shall, in all suits removed under the provisions of this chapter, pro- ceed therein as if the suit had been originally commenced in said District Court, and the same proceedings had been taken in such suit in said District Court as shall have been had therein in said State court prior to its removal. Sec. 39. In all causes removable imder this chapter, if the clerk of the State court in which any such cause shall be pending shall refuse to any one or more of the parties or persons applying to remove the same, a copy of the record therein, after tender of legal fees for such copy, said clerk so offending shall, on conviction thereof in the District Court of the United States to which said action or proceeding was removed, be fined not more than one thousand dollars, or imprisoned not more than one year, or both. The District Court to which any cause shall be removable under this chapter shall have power to issue a writ of certiorari to said State court commanding said State court to make return of the record in any such cause removed as aforesaid, or in which any one or more of the plaintiffs or defendants have complied with the provisions of this chapter for the removal of the same, and enforce said writ according to law. If it shall be impossible for the parties or persons removing an§r cause under this chapter, or complying with the provisions for the removal thereof, to obtain such copy, for the reason that the clerk of said State court refuses to furnish a copy, on payment of legal fees, or for any other reason, the District Court shall make an order requiring the prosecutor in any such action or proceeding to enforce forfeiture or recover penalty, as aforesaid, to file a copy of the paper or proceeding by which the same was commenced, within such time as the court may determine; and in default thereof the court shall dismiss the said action or proceeding; but if said order shall be complied with, then said District Court shall require the AN ACT TO CODIFY, ETC. 785 other party to plead, and said action or proceeding shall proceed to final judgment. The said District Court may make an order requiring the parties thereto to plead de novo; and the bond given, conditioned as aforesaid, shall be dis- charged so far as it requires copy of the record to be filed as aforesaid. Chapteb Fouk district couets miscellaneous pkovisions Sec. 40. Capital cases; where triable. 41. Offenses on the high seas, etc., where triable. 42. Offenses begun in one district and completed in another. 43. Suits for penalties and for- feitures, where brought. 44. Suits for internal-revenue taxes, where brought. 45. Seizures, where cognizable. 46. Capture of insurrectionary property, where cognizable. 47. Certain seizures cognizable in any district into which the property is taken. 48. Jurisdiction in patent cases. 49. Proceedings to enjoin Comp- troller of the Currency. 50. When a part of several defend- ants cannot be served. 51. Civil suits; where to be brought. 52. Suits in States containing more than one district. 5.3. Districts containing more than one division; where suit to be brought; transfer of criminal cases. 54. Suits of a local nature, where to be brought. 55. When property lies in differ- ent districts in same State. 56. When property lies in differ- ent States in same circuit; jurisdiction of receiver. 50 Sec. 67. Absent defendants in suits to enforce liens, remove clouds on titles, etc. 58. Civil causes may be trans- ferred to another division of district by agreement. 59. Upon creation of new district or division, where prosecu- tion to be instituted or action brought. 60. Creation of new district, or transfer of territory not to divest hen; how lien to be enforced. 61. Commissioners to administer oaths to appraisers. 62. Transfer of records to district court when a Territory be- comes a State. 63. District judge shall demand and compel delivery of rec- ords of territorial court. 64. Jurisdiction of district courts in cases transferred from territorial courts. 65. Receivers to manage property according to State laws. 66. Suits against receiver. 67. Certain persons not to be appointed or employed as officers of courts. 68. Certain persons not to be masters or receivers. 786 ADDENDA Sec. 40. The trial of offenses punishable with death shall be had in the county where the offense was committed, where that can be done without great inconvenience. Sec. 41. The trial of all offenses committed upon the high seas, or elsewhere out of the jurisdiction of any particular State or district, shall be in the district where the offender is found, or into which he is first brought. Sec. 42. When any offense against the United States is begun in one Judicial District and completed in another, it shall be deemed to have been committed in either, and may be dealt with, inquired of, tried, determined, and punished in either district, in the same manner as if it had been actually and wholly committed therein. Sec. 43. All peci^niary penalties and forfeitures may be sued for and recovered either in the district where they accrue or in the district where the offender is found. Sec. 44. Taxes accruing under any law providing internal revenue may be sued for and recovered either in the district where the liability for such tax occurs or in the district where the delinquent resides. Sec. 45. Proceedings on seizures made on the high seas, for forfeiture under any law of the United States, may be prosecuted in any district into which the property so seized is brought, and proceedings instituted. Proceedings on such seizures made within any district shall be prosecuted in the district where the seizure is made, except in cases where it is otherwise provided. Sec. 46. Proceedings for the condemnation of any property captured, whether on the high seas or elsewhere out of the limits of any judicial district, or within any district, on ac- count of its being purchased or acquired, sold or given, with intent to use or employ the same, or to suffer it to be used or employed, in aiding, abetting, or promoting any insurrection against the Government of the United States, or knowingly so used or employed by the owner thereof, or with his consent, may be prosecuted in any district where the same may be seized, or into which it may be taken and proceedings first instituted. Sec. 47. Proceedings on seizures for forfeiture of any vessel AKf ACT TO CODIFY, ETC. ^87 5r cargo entering any port of entry which has been closed by the President in pursuance of law, or of goods and chattels coming from a State or section declared by proclamation of the President to be in insurrection into other parts of the United States, or of any vessel or vehicle conveying such property, or conveying persons to or from such State or section, or of any vessel belonging, in whole or in part, to any inhabitant of such State or section, may be prosecuted in any district into which the property so seized may be taken and proceedings instituted; and the District Court thereof shall have as full jurisdiction over such proceedings as if the seizure was made in that district. Sec. 48. In suits brought for the infringement of letters patent the District Courts of the United States shall have jurisdiction, in law or in equity,' in the district of which the defendant is an inhabitant, or in any district in which the defendant, whether a person, partnership, or corporation, shall have committed acts of infringement and have a regular and established place of business. If such suit is brought in a district of which the defendant is not an inhabitant, but in which such defendant has a regular and established place of business, service of process, summons, or subpoena upon the defendant may be made by service upon the agent or agents engaged in conducting such business in the district in which suit is brought. Sec. 49. All proceedings by any national banking associa- tion to enjoin the Comptroller of the Currency, uiider the provisions of any law relating to national banking associa- tions, shall be had in the district where such association is located. Sec. 50. When there are several defendants in any suit at law or in equity, and one or more of them are neither in- habitants of nor found within the district in which the suit is brought, and do not voluntarily appear, the court may enter- tain jilrisdiction, and proceed to the trial and adjudication of the suit between the parties who are properly before it; but the judgment or decree rendered therein shall not con- clude or prejudice other parties not regularly served with process nor voluntarily appearing to answer; and non-jomder 788 ADDENDA of parties who are iiot inhabitants of nor found within the district, as aforesaid, shall not constitute matter of abate- ment or objection to the suit. Sec. 51. Except as provided in the five succeeding sections, no person shall be arrested in one district for trial in another, in any civil action before a District Court; and, except as provided in the six succeeding sections, no civil suit shall be brought in any District Court against any person by any original process or proceeding in any other district than that whereof he is an inhabitant; but where the jurisdiction is founded only on the fact that the action is between citizens of different States, suit shall be brought only in the district of the residence of either the plaintiff or the defendant. Sec. 52. When a State contains more than one district, every suit not of a local nature, in the District Court thereof, against a single defendant, inhabitant of such State, must be brought in the district where he resides; but if there are two or more defendants, residing in different districts of the State, it may be brought in either district, and a duplicate writ may be issued against the defendants, directed to the marshal of any other district in which any defendant resides. The clerk issuing the duplicate writ shall indorse thereon that it is a true copy of a writ sued out of the court of the proper district; and such original and duplicate writs, when executed and returned into the office from which they issue, shall con- stitute and be proceeded on as one suit; and upon any judg- ment or decree rendered therein, execution may be issued, directed to the marshal of any district in the same State. Sec. 53.. When a district contains more than one division, every suit not of a local nature against a single defendant must be brought in the division where he resides; but if there are two or more defendants residing in different divisions of the district it may be brought in either division. All mesne and final process subject to the provisions of this section may be served and executed in any or all of the divisions of the district, or if the State contains more than one district, then in any of such districts, as provided in the preceding section. All prosecutions for crimes or offenses shall be had within the division of such districts where the same were committed. AN ACT TO CODIFY, ETC. 780 unless the court, or the judge thereof, upon the application of the defendant, shall order the cause to be transferred for prosecution to another division of the district. When a trans- fer is ordered by the court or judge, all the papers in the case, or certified copies thereof, shall be transmitted by the clerk, under the seal of the court, to the division to which the cause is so ordered transferred; and thereupon the cause shall be proceeded with in said division in the same manner as if the offense had been committed therein. In all cases of the re- moval of suits from the courts of a State to the District Court of the United States such removal shall be to the United States District Court in the division in which the county is situated from which the removal is made; and the time within which the removal shall be perfected, in so far as it refers to or is regulated by the terms of United States courts, shall be deemed to refer to the terms of the United States District Court in such division. Sec. 54. In suits of a local nature, where the defendant resides in a different district, in the same State, from that in which the suit is brought, the plaintiff may have original and final process against him, directed to the marshal of the district in which he resides. Sec. 55. Any suit of a local nature, at law or in equity, where the land or other subject-matter of a fixed character lies partly in one district and partly in another, within the same State, may be brought in the District Court of either district; and the court in which it is brought shall ha,ve juris- diction to hear and decide it, and to cause mesne or final process to be issued and executed, as fully as if the said subject-matter were wholly within the district for which such court is constituted. Sec. 56. Where in any suit in which a receiver shall be appointed the land or other property of a fixed character, the subject of the suit, lies within different States in the same judicial circuit, the receiver so appointed shall, upon giving bond as required by the court, immediately be vested with full jurisdiction and control over all the property, the subject of the suit, lying or being within such circuit; subject, how- ever, to the disapproval of such order, within thirty days 790 ADDBNfiA thereafter, by the Circuit Court of Appeals for such circuit, or by a circuit judge thereof, after reasonable notice to adverse parties and an opportunity to be heard upon the motion for such disapproval; and subject, also, to the filing and entering in the District Court for each district of the circuit in which any portion of the property may lie or be, within ten days thereafter, of a duly certified copy of the bill and of the order of appointment. The disapproval of such appointment within such thirty days, or the failure to file such certified copy of the bill and order of appointment within ten days, as herein required, shall divest such receiver of jurisdiction over all such property except that portion thereof lying or being within the State in which the suit is brought. In any case coming within the provisions of this section, in which a receiver shall be appointed, process may issue and be executed within any district of the circuit in the same manner and to the same extent as if the property were wholly within the same district; but orders affecting such property shall be entered of record in each district in which the property affected may lie or be. Sec. 57. When in any suit commenced in any District Court of the United States to enforce any legal or equitable lien upon or claim to, or to remove any incumbrance or lien or cloud upon the title to real or personal property within the district where such suit is brought, one or more of the defendants therein shall not be an inhabitant of or found within the said district, or shall not voluntarily appear thereto,, it shall be lawful for the court to make an order directing such absent defendant or defendants to appear, plead, answer, or demur by a day certain to be designated, which order shall be served on such absent defendant or defendants, if practicable, wherever found, and also upon the person or persons in possession or charge of said prop- erty, if any there be; or where such personal service upon such absent defendant or defendants is not practicable, such order shall be published in such manner as the court may direct, not less than once a week for six consecutive weeks. In case such absent defendant shall not appear, plead, an- swer, or demur within the time so limited, or within some AN ACT TO CODIFY, ETC. 791 further time, to be allowed by the court, in its discretion, and upon proof of the service or publication of said order and of the performance of the directions contained in the same, it shall be lawful for the court to entertain jurisdiction, and proceed to the hearing and adjudication of such suit in the same manner as if such absent defendant had been served with process within the said district; but said adjudication shall, as regards said absent defendant or defendants without appearance, affect only the property which shall have been the subject of the suit and under the jurisdiction of the court therein, within such district; and when a part of the said real or personal property against which such proceedings shall be taken shall be within another district, but within the same State, such suit may be brought in either district in said State: Provided, however, That any defendant or defendants not actually personally notified as above provided may, at any time within one year after final judgment in any suit mentioned in this section, enter his appearance in said suit in said District Court, and thereupon the said court shall make an order setting aside the judgment therein and per- mitting said defendant or defendants to plead therein on payment by him or them of such costs as the court shall deem just; and thereupon said suit shall be proceeded with to final judgment according to law. Sec. 58. Any civil cause, at law or in equity, may, on written stipulation ■ of the parties or of their attorneys of record signed and filed with the papers in the case, in vaca- tion or in term, and on the written order of the judge signed and filed in the case in vacation or on the order of the court duly entered of record in term, be transferred to the court of any other division of the same district, without regard to the residence of the defendants, for trial. When a cause shall be ordered to be transferred to a court in any other division, it shall be the duty of the clerk of the court from which the transfer is made to carefully transmit to the clerk of the court to which the transfer is made the entire file of papers in the cause and all documents and deposits in his court pertaining thereto, together with a certified transcript of the records of all orders, interlocutory decrees, or other 792 ADDENDA entries in the cause; and he shall certify, under the seal of the court, that the papers sent are all which are on file in said court belonging to the cause; for the performance of which duties said clerk so transmitting and certifying shall receive the same fees as are now allowed by law for similar services, to be taxed in the bill of costs, and regularly collected with the other costs in the cause; and such transcript, when so certified and received, shall henceforth constitute a part of the record of the cause in the court to which the transfer shall be made. The clerk receiving such transcript and original papers shall file the same and the case shall then proceed to final disposition as other cases of a like nature. Sec. 59. Whenever any new district or division has been or shall be established, or any county or territory has been or shall be transferred from one district or division to another district or division, prosecutions for crimes and offenses com- mitted within such district, division, county, or territory prior to such transfer, shall be commenced and proceeded with the same as if such new district or division had not been created, or such county or territory had not been trans- ferred, unless the court, upon the application of the defend- ant, shall order the cause to be removed to the new district or division for trial. Civil actions pending at the time of the creation of any such district or division, or the transfer of any such county or territory, and arising within the district or division so created or the county or territory so trans- ferred, shall be tried in the district or division as it existed at the time of the institution of the action, or in the district or division so created, or to which the county or territory is or shall be so transferred, as may be agreed upon by the parties, or as the court shall direct. The transfer of such prosecutions and actions shall be made in the manner pro- vided in the section last preceding. Sec. 60. The creation of a new district or division, or the transfer of any county or territory from one district or divi- sion to another district or division, shall not affect or divest any lien theretofore acquired in the Circuit or District Court by virtue of a decree, judgment, execution, attachment, seizure, or otherwise, upon property situated or being within AN ACT TO CODIFY, ETC. 793 the district or division so created, or the county or territory so transferred. To enforce any such lien, the clerk of the court in which the same is acquired, upon the request and at the cost of the party desiring the same, shall make a true and certified copy of the record thereof, which, when so made and certified, and filed in the proper court of the district or division in which such property is situated or shall be, after such transfer, shall constitute the record of such lien in such court, and shall be evidence in all courts and places equally with the original thereof; and thereafter like proceedings shall be had thereon, and with the same effect, as though the cause or proceeding had been originally instituted in such court. The provisions of this section shall apply not only in all cases where a district or division is created, or a county or any territory is transferred by this or any future Act, but also in all cases where a district or division has been created, or a county or any territory has been transferred by any law heretofore enacted. Sec. 61. Any district judge may appoint commissioners, before whom appraisers of vessels or goods and merchandise seized for breaches of any law of the United States, may be sworn; and such oaths, so taken, shall be as effectual as if taken before the judge in open court. Sec. 62. When any Territory is admitted as a State, and a District Court is established therein, all the records of the proceedings in the several cases pending in the highest court of said Territory at the time of such admission, and all records of the proceedings in the several cases in which judgments or decrees had been rendered in said territorial court before that time, and from which writs of error could have been sued out or appeals could have been taken, or from which writs of error had been sued out or appeals had been taken and prosecuted to the Supreme Court or to the Circuit Court of Appeals, shall be transferred to and deposited in the District Court for the said State. Sec. 63. It shall be the duty of the district judge, in the case provided in the preceding section, to demand of the clerk, or other person having possession or custody of the records therein mentioned, the delivery thereof, to be de- 794 ADDENDA posited in said District Court; and in case of the refusal of such clerk or person to comply with such demand, the said district judge shall compel the delivery of such records by attachment or otherwise, according to law. Sec. 64. When any Territory is admitted as a State, and a District Court is established therein, the said District Court shall take cognizance of all cases which were pending and undetermined in the trial courts of such Territory, from the judgments or decrees to be rendered in which writs of error could have been sued out or appeals taken to the Supreme Court or to the Circuit Court of Appeals, and shall proceed to hear and determine the same. Sec. 65. Whenever in any cause pending in any court of the United States there shall be a receiver or manager in possession of any property, such receiver or manager shall manage and operate such property according to the require- ments of the valid laws of the State in which such property shall be situated, in the same manner that the owner or possessor thereof would be bound to do if in possession thereof. Any receiver or manager who shall willfully violate any provision of this section shall be fined not more than three thousand dollars, or imprisoned not more than one year, or both. Sec. 66. Every receiver or manager of any property ap- pointed by any court of the United States may be sued in respect of any act or transaction of his in carrying on the business connected with such property, without the previous leave of the court in which such receiver or manager was appointed; but such suit shall be subject to the general equity jurisdiction of the court in which such manager or receiver was appointed so far as the same may be neces- sary to the ends of justice. Sec. 67. No person shall be appointed to or employed in any office or duty in any court who is related by afiinity or consanguinity within the degree of first cousin to the judge of such court. Sec. 68. No clerk of a District Court of the United States or his deputy shall be appointed a receiver or master in any case, except where the judge of said court shall determine AN ACT TO CODIFY, ETC. 795 that special reasons exist therefor, to be assigned in the order of appointment. [Chapter 5 describes the boundaries of the several judicial districts and is omitted.] Chapter Six CIRCUIT COURTS OP APPEALS Sec. 116. Circuits. 117. Circuit Courts of Appeals. 118. Circuit judges. 119. Allotment of justices to the circuits. 120. Chief justice and associate justices of Supreme Court, and district judges, may sit in Circuit Court of Ap- peals. 121. Justices allotted to circuits, how designated. 122. Seals, forms of process, and rules. 123. Marshals. 124. Clerks. 125. Deputy clerks; appointment and removal. 126. Terms. 127. Rooms for court, how pro- vided. Sec. 128. Jurisdiction; when judgment final. 129. Appeals in proceedings for injunctions and receivers. 130. Appellate and supervisory jurisdiction under the bankrupt act. 131. Appeals from the United States court for China. 132. Allowance of appeals, etc. 133. Writs of error and appeals from the Supreme Courts of Arizona and New Mexico. 134. Writs of error and appeals from District Court for Alaska to Circuit Court of Appeals for ninth circuit; court may certify questions to the Supreme Court. 135. Appeals and writs of error from Alaska; where heard. Sec. 116. There shall be nine Judicial Circuits of the United States, constituted as follows: First. The first circuit shall include the districts of Rhode Island, Massachusetts, New Hampshire, and Maine. Second, The second circuit shall include the districts of Vermont, Connecticut, and New York. Third. The third circuit shall include the districts of Pennsylvania, New Jersey, and Delaware. Fourth. The fourth circuit shall include the districts of Maryland, Virginia, West Virginia, North Carolina, and South Carolina. 796 AtoENi)A Fifth. The fifth circuit shall include the districts of Georgia, Florida, Alabama, Mississippi, Louisiana, and Texas. Sixth. The sixth circuit shall include the districts of Ohio, Michigan, Kentucky, and Tennessee. Seventh. The seventh circuit shall include the districts of Indiana, Illinois, and Wisconsin. Eighth. The eighth circuit shall include the districts of Nebraska, Minnesota, Iowa, Missouri, Kansas, Arkansas, Colorado, Wyoming, North Dakota, South Dakota, Utah, and Oklahoma. Ninth. The ninth circuit shall include the districts of California, Oregon, Nevada, Washington, Idaho, Montana, and Hawaii. Sec. 117. There shall be in each circuit a Circuit Court of Appeals, which shall consist of three judges, of whom two shall constitute a quorum, and which shall be a court of record, with appellate jurisdiction, as hereinafter limited and established. Sec. 118. There shall be in the second, seventh, and eighth circuits, respectively, four circuit judges, in the fourth circuit, two circuit judges, and in each of the other circuits, three* circuit judges, to be appointed by the President, by and with the advice and consent of the Senate. They shall be entitled to receive a salary at the rate of seven thousand dollars a year, each, payable monthly. Each circuit judge, shall reside within his circuit. Sec. 119. The Chief Justice and associate justices of the Supreme Court shall be allotted among the circuits by an order of the court, and a new allotment shall be made when- ever it becomes necessary or convenient by reason of the alteration of any circuit, or of the new appointment of a Chief Justice or associate justice, or otherwise. If a new allotment becomes necessary at any other time than during a term, it shall be made by the Chief Justice, and shall be binding until the next term and until a new allotment by the court. Whenever, by reason of death or resignation, no justice. is allotted to a circuit, the Chief Justice may, until a justice is regularly allotted thereto, temporarily assign a justice of another circuit to such circuit. AN ACT TO CODIFY, ETC. 797 Sec. 120. The Chief Justice and the associate justices of the Supreme Court assigned to each circuit, and the several district judges within each circuit, shall be competent to sit as judges of the Circuit Court of Appeals within their re- spective circuits. In case the Chief Justice or an associate justice of the Supreme Court shall attend at any session of the Circuit Court of Appeals, he shall preside. In the ab- sence of such Chief Justice, or associate justice, the circuit .judges in attendance upon the court shall preside in the order of the seniority of their respective commissions. In case the full court at any time shall not be made up by the attendance of the Chief Justice or the associate justice, and the circuit judges, one or more district judges within the circuit shall sit in the court according to such order or provision among the district judges as either by general or particular assign- ment shall be designated by the court: Provided, That no judge before whom a cause or question may have been tried or heard in a District Court, or existing Circuit Court, shall sit on the trial or hearing of such cause or question in the Circuit Court of Appeals. Sec. 121. The words "circuit justice" and "justice of a circuit," when used in this title, shall be understood to designate the justice of the Supreme Court who is allotted to any circuit; but the word "judge," when applied generally to any circuit, shall be understood to include such justice. Sec. 122. Each of said Circuit Courts of Appeals shall prescribe the form and style of its seal, and the form of writs and other process and procedure as may be conformable to the exercise of its jurisdiction; and shall have power to estab- lish all rules and regulations for the conduct of the business of the court within its jurisdiction as conferred by law. Sec. 123. The United States marshals in and for the several districts of said courts shall be the marshals of said Circuit Courts of Appeals, and shall exercise the same powers and perform the same duties, under the regulations of the court, as are exercised and performed by the marshal of the Supreme Court of the United States, so far as the same may be apphcable. Sec. 124. Each court shall appoint a clerk, who shall 798 ADDENDA exercise the same powers and perform the same duties in regard to all matters within its jurisdiction, as are exercised and performed by the clerk of the Supreme Court, so far as the same may be applicable. Sec. 125. The clerk of the Circuit Court of Appeals for each circuit may, with the approval of the court, appoint such number of deputy clerks as the court may deem neces- sary. Such deputies may be removed at the pleasure of the clerk appointing them, with the approval of the court. In case of the death of the clerk his deputy or deputies shall, unless removed by the court, continue in office and perform the duties of the clerk in his name until a clerk is appointed and has qualified; and for the defaults or misfeasances in office of any such deputy, whether in the lifetime of the clerk or after his death, the clerk and his estate and the sureties on his official bond shall be liable, and his executor or adminis- trator shall have such remedy for such defaults or mis- feasances committed after his death as the clerk would be entitled to if the same had occurred in his lifetime. Sec. 126. A term shall be held annually by the Circuit Courts of Appeals in the several judicial circuits at the following places, and at such times as may be fixed by said courts, respectively: In the first circuit, in Boston; in the second circuit, in New York; in the third circuit, in Philadel- phia; in the fourth circuit, in Richmond; in the fifth circuit, in New Orleans, Atlanta, Fort Worth, and Montgomery; in the sixth circuit, in Cincinnati; in the seventh circuit, in Chicago; in the eighth circuit, in Saint Louis, Denver < or Cheyenne, and Saint Paul; in the ninth circuit, in San Francisco, and each year in two other places in said circuit to be designated by the judges of said court; and in each of the above circuits, terms may be held at such other times and in such other places as said courts, respectively, may from time to time designate: Provided, That terms shall be held in Atlanta on the first Monday in October, in Fort Worth on the first Monday in November, in Montgomery on the third Monday in October, in Denver or in Cheyenne on the first Monday in September, and in Saint Paul on the first Monday in May. All appeals, writs of error, and other appellate AN ACT TO CODIFY, ETC. 799 proceedings which may be taken or prosecuted from the District Courts of the United States in the State of Georgia, in the State of Texas, and in the State of Alabama, to the Circuit Court of Appeals for the fifth Judicial Circuit shall be heard and disposed of, respectively, by said court at the terms held in Atlanta, in Fort Worth, and in Montgomery, except that appeals or writs of error in cases of injunctions and in all other cases which, under the statutes and rules, or in the opinion of the court, are entitled to be brought to a speedy hearing may be heard and disposed of wherever said court may be sitting. All appeals, writs of errors, and other appellate proceedings which may hereafter be taken or prosecuted from the District Court of the United States at Beaumont, Texas, to the Circuit Court of Appeals for the fifth circuit, shall be heard and disposed of by the said Circuit Court of Appeals at the terms of court held at New Orleans: Provided, That nothing herein shall prevent the court from hearing appeals or writs of error wherever the said courts shall sit, in cases of injunctions and in all other cases which, under the statutes and the rules, or in the opinion of the court, are entitled to be brought to a speedy hearing. All appeals, writs of error, and other appellate proceedings which may be taken or prosecuted from the District Courts of the United States in the States of Colorado, Utah, and Wyoming, and the Supreme Court of the Territory of New Mexico to the Circuit Court of Appeals for the eighth judicial- circuit, shall be heard and disposed of by said court at the terms held either in Denver or in Cheyenne, except that any case arising in any of said States or Territory may, by consent of all the parties, be heard and disposed of at a term of said court other than the one held in Denver or Cheyenne. Sec. 127. The marshals for the several districts in which said Circuit Courts of Appeals may be held shall, under the direction of the Attorney General, and with his approval, provide such rooms in the public buildings of the United States as may be necessary for the business of said courts, and pay all incidental expenses of said court, including criers, bailiffs, and messengers: Provided, That in case proper rooms cannot be provided in such buildings, then the mar- 800 ADDENDA shals, with the approval of the Attorney General, may, from time to time, lease such rooms as may be necessary for such courts. Sec. 128. The Circuit Courts of Appeals shall exercise appellate jurisdiction to review by appeal or writ of error final decisions in the District Courts, including the United States District Court for Hawaii, in all cases other than those in which appeals and writs of error may be taken direct to the Supreme Court, as provided in section two hundred and thirty-eight, unless otherwise provided by law; and, except as provided in sections two hundred and thirty-nine and two hundred and forty, the judgments and decrees of the Circuit Courts of Appeals shall be final in all cases in which the juris- diction is dependent entirely upon the opposite parties to the suit or controversy being aliens and citizens of the United States, or citizens of different States; also in all cases arising under the patent laws, under the copyright laws, under the revenue laws, and under the criminal laws, and in admiralty cases. Sec. 129. Where upon a hearing in equity in a District Court, or by a judge thereof in vacation, an injunction shall be granted, continued, refused, or dissolved by an interlocu- tory order or decree, or an application to dissolve an injunc- tion shall be refused, or an interlocutory order or decree shall be made appointing a receiver, an appeal may be taken from such interlocutory order or decree granting, continuing, re- fusing, dissolving, or refusing to dissolve, an injunction, or appointing a receiver, to the Circuit Court of Appeals, not- withstanding an appeal in such case might, upon final decree under the statutes regulating the same, be taken directly to the Supreme Court: Provided, That the appeal must be taken within thirty days from the entry of such order or decree, and it shall take precedence in the appellate court; and the proceedings in other respects in the court below shall not be stayed unless otherwise ordered by that court, or the appellate court, or a judge thereof, during the pendency of such appeal : Provided, however, That the court below may, in its discretion, require as a condition of the appeal an addi- tional bond. AN ACT TO CODIFY, ETC. 801 Sec. 130. The Circuit Courts of Appeals shall have the appellate and supervisory jurisdiction conferred upon them by the Act entitled "An Act to establish a uniform system of bankruptcy throughout the United States," approved July first, eighteen hundred and ninety-eight, and all laws amend- atory thereof, and shall exercise the same in the manner therein prescribed. Sec. 131. The Circuit Court of Appeals for the ninth cir- cuit is empowered to hear and determine writs of error and appeals from the United States court for China, as provided in the Act entitled "An Act creating a United States court for China and prescribing the jurisdiction thereof," approved June thirtieth, nineteen hundred and six. Sec. 132. Any judge of a Circuit Court of Appeals, in respect of cases brought or to be brought before that court, shall have the same powers and duties as to allowances of appeals and writs of error, and the conditions of such al- lowances, as by law belong to the justices or judges in respect of other courts of the United States, respectively. Sec. 133. The Circuit Courts of Appeals, in cases in which their judgments and decrees are made final by this title, shall have appellate jurisdiction, by writ of error or appeal, to review the judgments, orders, and decrees of the Supreme Courts of Arizona and New Mexico, as by this title they may have to review the judgments, orders, and decrees of the District Courts; and for that purpose said Territories shall, by orders of the Supreme Court of the United States, to be made from time to time, be assigned to particular circuits. Sec. 134. In all cases other than those in which a writ of error or appeal will lie direct to the Supreme Court of the United States as provided in section two hundred and forty- seven, in which the amount involved or the value of the subject-matter in controversy shall exceed five hundred dollars, and in all criminal cases, writs of error and appeals shall lie from the District Court for Alaska or from any division thereof, to the Circuit Court of Appeals for the ninth circuit, and the judgments, orders, and decrees of said court shall be final in all such cases. But whenever such Circuit Court of Appeals may desire the instruction of the 51 802 ADDENDA Supreme Court of the United States upon any question or proposition of law which shall have arisen in any such case, the court may certify such question or proposition to the Supreme Court, and thereupon the Supreme Court shall give its instruction upon the question or proposition certified to it, and its instructions shall be binding upon the Circuit Court of Appeals. Sec. 135. All appeals, and writs of error, and other cases, coming from the District Court for the district of Alaska to the Circuit Court of Appeals for the ninth circuit, shall be entered upon the docket and heard at San Francisco, Califor- nia, or at Portland, Oregon, or at Seattle, Washington, as the trial court before whom the case was tried below shall fix and determine: Provided, That at any time before the hearing of any appeal, writ of error, or other case, the parties thereto, through their respective attorneys, may stipulate at which of the above-named places the same shall be heard, in which case the case shall be remitted to and entered upon the docket at the place so stipulated and shall be heard there. , [Chapter seven is omitted. It establishes the Court of Claims and prescribes its jurisdiction and practice.] [Chapter eight establishes the Court of Customs Appeals, prescribes- its jurisdiction and regulates its practice.] [Chapter nine established the Commerce Court, prescribed its juris- diction and regulated its practice.] AN ACT TO CODIFY, ETC. 803 Chapter Ten the supreme court Sec. 215 216, 217. 218. 219. 220. 221. 222. 223. 224. 225. 226. 227. 228. i. Number of justices. Precedence of the aasociate justices. Vacancy in the office of Chief Justice. Salaries of justices. Clerk, marshal, and reporter. The clerk to give bond. Deputies of the clerk. Records of the old Court of Appeals. Tables of fees. Marshal of the Supreme Court. Duties of the reporter. Reporter's salary and al- lowances. Distribution of reports and 229. 230. 231. 232. 233. 234. 235. 236. 237. 238. 239. Additional reports and di- gests; limitation upon cost; ■estimates to be submitted to Congress annually. Distribution of Federal Re- porter, etc., and Digests. Terms. Adjournment for want of a quorum. Certain orders made by less than quorum. Original disposition. Writs of prohibition and mandamus. Issues of fact. Appellate jiuisdiction. Writsof error from judgments and decrees of State courts. Appeals and writs of error from United States Dis- trict Courts. Circuit Court of Appeals may certify questions to Su- 241. 242. 243. preme Court for instruc- tions. 240. Certiorari to Circuit Court of Appeals. Appeals and writs of error in other cases. Appeals from Court of Claims. Time and manner of appeals from the Court of Claims. 244. Writsof error and appeals from Supreme Court of Porto Rico and United States District Court therefor. Writs of error and appeals from the Supreme Courts of Arizona and New Mexico. Writs of error and appeals from the Supreme Court of Hawaii. Appeals and writs of error from the District Court for Alaska direct to Supreme Court in certain cases. Appeals and writs of error from the Supreme Court of the Philippine Islands. Appeals and writs of error when a Territory becomes a State. Appeals and writs of error from the Court of Appeals of the District of Columbia. Certiorari to Court of Ap- peals, District of Columbia. 252. Appellate jurisdiction under the bankruptcy act. Precedence of writs of error to State courts. Cost of printing records. Women may be admitted to practice. 245. 246. 247. 248. 249. 250. 251. 253. 254. 255. 804 ADDENDA Sec. 215. The Supreme Court of the United States shall consist of a Chief Justice of the United States and eight associate justices, any six of whom shall constitute a quorum. Sec. 216. The associate justices shall have precedence according to the dates of their commissions, or, when the commissions of two or more of them bear the same date, according to their ages. Sec. 217. In case of a vacancy in the office of Chief Justice, or of his inability to perform the duties and powers of his office, they shall devolve upon the associate justice who is first in precedence, until such disability is removed, or another Chief Justice is appointed and duly qualified. This provision shall apply to every associate justice who succeeds to the oflSce of Chief Justice. Sec. 218. The Chief Justice of the Supreme Court of the United States shall receive the simx of fifteen thousand dollars a year, and the justices thereof shall receive the svun of fourteen thousand five himdred dollars a year each, to be paid monthly. Sec. 219. The Supreme Court shall have power to appoint a clerk and a marshal for said court, and a reporter of its decisions. Sec. 220. The clerk of the Supreme Court shall, before he enters upon the execution of his office, give bond, with sufficient sureties, to be approved by the court, to the United States, in the sum of not less than five thousand and not more than twenty thousand dollars, to be determined and regulated by the Attorney General, faithfully to discharge the duties of his office, and seasonably to record the decrees, judgments, and determinations of the court. The Supreme Court may at any time, upon the motion of the Attorney General, to be made upon thirty days' notice, require a new bond, or a bond for an increased amount within the limits above prescribed; and the failure of the clerk to execute the same shall vacate his office. All bonds given by the clerk shall, after approval, be recorded in his office, and copies thereof from the records, certified by the clerk under seal of the court, shall be competent evidence in any court. The original bonds shall be filed in the Department of Justice. AN ACT TO CODIFY, ETC. 805 Sec. 221. One or more deputies of the clerk of the Supreme Court may be appointed by the court on the application of the clerk, and may be removed at the pleasure of the court. In case of the death of the clerk, his deputy or deputies shall, unless removed, continue in office and perform the duties of the clerk in his name imtil a clerk is appointed and qualified ; and for the defaults or misfeasances in office of any such deputy, whether in the lifetime of the clerk or after his death, the clerk, and his estate, and the sureties on his official bond shall be liable; and his executor or administrator shall have such remedy for any such defaults or misfeasances com- mitted after his death as the clerk would be entitled to if the same had occurred in his lifetime. Sec. 222. The records and proceedings of the Court of Appeals, appointed previous to the adoption of the present Constitution, shall be kept in the office of the clerk of the Supreme Court, who shall give copies thereof to any person requiring and paying for them, in the manner provided by law for giving copies of the records and proceedings of the Supreme Court; and such copies shall have hke faith and credit with ^11 other proceedings of said court. Sec. 223. /The Supreme Court is authorized and empowered to prepare me tables of fees to be charged by the clerk thereof. Sec. 224. The marshal is entitled to receive a salary at the rate of foiu- thousand five hundred dollars a year. He shall attend the court at its sessions; shall serve and execute all process and orders issuing from it, or made by the Chief Justice or an associate justice in pursuance of law; and shall take charge of all property of the United States used by the court or its members. With the approval of the Chief Justice he may appomt assistants and messengers to attend the court, with the compensation allowed to officers of the House of Representatives of similar grade. Sec. 225. The reporter shall cause the decisions of the Supreme Court to be printed and published within eight months after they are made; and within the same time he shall deliver three hundred copies of the volumes of said reports to the Attorney General. The repori;er shall, in any year when he is so directed by the court, cause to be prmted 806 ADDENDA and published a second volume of said decisions, of which he shall deliver a like number of copies in like manner and time. Sec. 226. The reporter shall be entitled to receive from the Treasury an annual salary of four thousand five hundred dollars when his report of said decisions constitutes one volume, and an additional sum of one thousand two hundred dollars when, by direction of the court, he causes to be printed and published in any year a second volume; and said re- porter shall be annually entitled to clerk hire in the sum of one thousand two hundred dollars, and to office rent, stationery, and contingent expenses in the sum of six hundred dollars: Provided, That the volumes of the decisions of the court heretofore published shall be furnished by the reporter to the public at a sum not exceeding two dollars per volume, and those hereafter published at a sum not exceeding one dollar and seventy-five cents per volume; and the number of volumes now required to be delivered to the Attorney General shall be furnished by the reporter without any charge there- for. Said salary and compensation, respectively, shall be paid only when he causes such decisions to be printed, published, and delivered within the time and in the manner prescribed by law, and upon the condition that the volumes of said reports shall be sold by him to the public for a price not exceeding one dollar and seventy-five cents a volume. Sec. 227. The Attorney General shall distribute copies of the Supreme Court reports, as follows: [Here follows a list of persons and officers entitled to receive the reports.] Sec. 228. [Relates to the volumes to be delivered to the Attorney General.] Sec. 229. [Relates to the distribution by the Attorney General of reports.] Sec. 230. The Supreme Court shall hold at the seat of government, one term annually, commencing on the second Monday in October, and such adjourned or special terms as it may find necessary for the dispatch of business. Sec. 231. If, at any session of the Supreme Court, a quorum does not attend on the day appointed for holding it, the justices who do attend may adjourn the court from day to AN ACT TO CODIFY, ETC. 807 day for twenty days after said appointed time, unless there be sooner a quorum. If a quorum does not attend within said twenty days, the business of the court shall be continued over till the next appointed session; and if, during a term, after a quorum has assembled, less than that number attend on any day, the justices attending may adjourn the court from day to day imtil there is a quorum, or may adjourn without day. Sec. 232. The justices attending at any term, when less than a quorum is present, may, within the twenty days mentioned in the preceding section, make all necessary orders touching any suit, proceeding, or process, depending in or returned to the court, preparatory to the hearing, trial, or decision thereof. Sec. 233. The Supreme Court shall have exclusive jurisdic- tion of all controversies of a civil nature where a State is a party, except between a State and its citizens, or between a State and citizens of other States, or aliens, in which latter cases it shall have original, but not exclusive, jurisdiction. And it shall have exclusively all such jurisdiction of suits or proceedings against ambassadors or other public ministers, or their domestics or domestic servants, as a court of law can have consistently with the law of nations; and original, but not exclusive, jm-isdiction, of all suits brought by ambas- sadors, or other public ministers, or in which a consul or vice consul is a party. Sec. 234. The Supreme Court shall have power to issue writs of prohibition to the District Courts, when proceeding as courts of admiralty and maritime jurisdiction; and writs of mandamus, in cases warranted by the principles and usages of law, to any courts appointed under' the authority of the United States, or to persons holding office under the author- ity of the United States, where a State, or an ambassador, or other public minister, or a consul, or vice consul is a party. Sec. 235. The trial of issues of fact in the Supreme Court, in all actions at law against citizens of the United States, shall be by jury. Sec. 236. The Supreme Court shall have appellate ju- risdiction in the cases hereinafter specially provided for. 808 ADDENDA Sec. 237. A £nal judgment or decree in any suit in the highest court of a State in which a decision in the suit could be had, where is drawn in question the validity of a treaty or statute of, or an authority exercised under, the United States, and the decision is against their validity; or where is drawn in question the validity of a statute of, or an authority exercised under any State, on the ground of their being re- pugnant to the Constitution, treaties, or laws of the United States, and the decision is in favor of their validity; or where any title, right, privilege, or immunity is claimed under the Constitution, or any treaty or statute of, or commission held or authority exercised under, the United States, and the decision is against the title, right, privilege, or immimity especially set up or claimed, by either party, under such Constitution, treaty, statute, commission, or authority, may be reexamined and reversed or affirmed in the Supreme Court upon a writ of error. The writ shall have the same effect as if the judgment or decree complained of had been rendered or passed in a court of the United States. The Supreme Court may reverse, modify, or affirm the judgment or decree of such State court, and may, at their discretion, award execution or remand the same to the court from which it was removed by the writ. Sec. 238. Appeals and writs of error may be taken from the District Courts, including the United States District Court for Hawaii, direct to the Supreme Court in the follow- ing cases: In any case in which the jurisdiction of the court is in issue, in which case the question of jurisdiction alone shall be certified to the Supreme Court from the court below for decision; from the final sentences and decrees in prize causes; in any case that involves the construction or applica- tion of the Constitution of the United States; in any -case in which the constitutionality of any law of the United States, or the validity or construction of any treaty made under its authority is drawn in question; and in any case in which the constitution or law of a State is claimed to be in contraven- tion of the Constitution of the United States. Sec. 239. In any case within its appellate jurisdiction, as defined in section one hundred and twenty-eight, the Circuit AN ACT TO CODIFY, ETC. 809 Court of Appeals at any time may certify to the Supreme Court of the United States any questions or propositions of law concerning which it desires the instruction of that court for its proper decision; and thereupon the Supreme Court may either give its instruction on the questions and proposi- tions certified to it, which shall be binding upon the Circuit Court of Appeals in such case, or it may require that the whole record and cause be sent up to it for its consideration, and thereupon shall decide the whole matter in controversy in the same manner as if it had been brought there for review by writ of error or appeal. Sec. 240. In any case, civil or criminal, in which the judg- ment or decree of the Circuit Court of Appeals is made final by the provisions of this Title, it shall be competent for the Supreme Court to require, by certiorari or otherwise, upon the petition of any party thereto, any such case to be certified to the Supreme Court for its review and determination, with the same power and authority in the case as if it had been carried by appeal or writ of error to the Supreme Court. Sec. 241. In any case in which the judgment or decree of the Circuit Court of Appeals is not made final by the provi- sions of this Title, there shall be of right an appeal or writ of error to the Supreme Court of the United States where the matter in controversy shall exceed one thousand dollars, besides costs. Sec. 242. An appeal to the Supreme Court shall be allowed on behalf of the United States, from all judgments of the Court of Claims adverse to the United States, and on behalf of the plaintiff in any case where the amount in controversy exceeds three thousand dollars, or where his claim is for- feited to the United States by the judgment of said court as provided in section one hundred and seventy-two. Sec. 243. All appeals from the Court of Claims shall be taken within ninety days after the judgment is rendered, and shall be allowed under such regulations as the Supreme Court may direct. Sec. 244. Writs of error and appeals from the final judg- ments and decrees of the Supreme Court of, and the United States District Court for, Porto Rico, may be taken and 810 ADDENDA prosecuted to the Supreme Court of the United States, in any case wherein is involved the vaUdity of any copyright, or in which is drawn in question the vahdity of a treaty or statute of, or authority exercised under, the United States, or wherein the Constitution of the United States, or a treaty thereof, or an Act of Congress is brought in question and the right claimed thereunder is denied, without regard to the sum or value of the matter in dispute; and in all other cases in which the sum or value of the matter in dispute, exclusive of costs, to be ascertained by the oath of either party or of other competent witnesses, exceeds the sum or value of five thou- sand dollars. Such writs of error and appeals shall be taken within the same time, in the same manner, and under the same regulations as writs of error and appeals are taken to the Supreme Court of the United States from the District Courts. Sec. 245. Writs of error and appeals from the final judg- ments and decrees of the Supreme Courts of the Territories of Arizona and New Mexico may be taken and prosecuted to the Supreme Court of the United States in any case wherein is involved the validity of any copyright, or in which is drawn in question the vahdity of a treaty or statute of, or authority exercised under, the United States, without regard to the sum or value of the matter in dispute; and in all other cases in which the sum or value of the matter in dispute, exclusive of costs, to be ascertained by the oath of either party or of other competent witnesses, exceeds the sum or value of five thousand dollars. Sec. 246. Writs of error and appeals from the final judg- ments and decrees of the Supreme Court of the Territory of Hawaii may be taken and prosecuted to the Supreme Court of the United States, within the same time, in the same man- ner, under the same regulations, and in the same classes of cases, in which writs of error and appeals from the final judgments and decrees of the highest court of a State in which a decision in the suit could be had, may be taken and prosecuted to the Supreme Court of the United States under the provisions of section two hundred and thirty-seven; and also in all cases wherein the amount involved, exclusive of AN ACT TO CODIFY, ETC. 811 costs, to be ascertained by the oath of either party or of other competent witnesses, exceeds the sum or value of five thou- sand dollars. Sec. 247. Appeals and writs of error may be taken and prosecuted from final judgments and decrees of the District Court for the district of Alaska or for any division thereof, direct to the Supreme Court of the United States, in the following cases: In prize cases; and in all cases which involve the construction or application of the Constitution of the United States, or in which the constitutionality of any law of the United States or the validity or construction of any treaty made under its authority is drawn in question, or in which the constitution or law of a State is claimed to be in contravention of the Constitution of the United States. Such writs of error and appeal shall be taken within the same time, in the same manner, and imder the same regulations as writs of error and appeals are taken from the District Courts to the Supreme Court. Sec. 248. The Supreme Court of the United States shall have jurisdiction to review, revise, reverse, modify, or afiirm the final judgments and decrees of the Supreme Court of the Philippine Islands in all actions, cases, causes, and proceed- ings now pending therein or hereafter determined thereby, in which the Constitution, or any statute, treaty, title, right, or privilege of the United States is involved, or in causes in which the value in controversy exceeds twenty-five thousand dollars, or in which the title or possession of real estate ex- ceeding in value the siun of twenty-five thousand dollars, to be ascertained by the oath of either party or of other com- petent witnesses, is involved or brought in question; and such final judgments or decrees may and can be reviewed, revised, reversed, modified, or affirmed by said Supreme Court on appeal or writ of error by the party aggrieved, within the same time, in the same maimer, under the same regulations, and by the same procedure, as far as applicable, as the final judgments and decrees of the District Courts of the United States. Sec. 249. In all cases where the judgment or decree of any court of a Territory might be reviewed by the Supreme Court 812 ADDENDA on writ of error or appeal, such writ of error or appeal may be taken, witliin the time and in the manner provided by law, notwithstanding such Territory has, after such judgment or decree, been admitted as a State; and the Supreme Court shall direct the mandate to such court as the nature of the writ of error or appeal requires. Sec. 250. Any final judgment or decree of the court of Appeals of the District of Columbia may be reexamined and affirmed, reversed, or modified by the Supreme Court of the United States, upon writ of error or appeal, in the following cases: First. In cases in which the jurisdiction of the trial court is in issue; but when any such case is not otherwise review- able in said Supreme Court, then the question of juris- diction alone shall be certified to said Supreme Court for decision. Second. In prize cases. Third. In cases involving the construction or application of the Constitution of the United States, or the constitu- tionality of any law of the United States, or the validity or construction of any treaty made imder its authority. Fourth. In cases in which the constitution, or any law of a State, is claimed to be in contravention of the Constitution of the United States. Fifth. In cases in which the validity of any authority exer- cised under the United States, or the existence or scope of any power or duty of an ofiicer of the United States is drawn in question. Sixth. In cases in which the construction of any law of the United States is drawn in question by the defendant. Except as provided in the next succeeding section, the judgments and decrees of said Court of Appeals shall be final in all cases arising imder the patent laws, the copyright laws, the revenue laws, the criminal laws, and in admiralty cases; and, except as provided in the next succeeding section, the judgments and decrees of said Court of Appeals shall be final in all cases not reviewable as hereinbefore provided. Writs of error and appeals shall be taken within the same time, in the same manner, and under the same regulations as AN ACT TO CODIFY, ETC. 813 writs of error and appeals are taken from the Circuit Courts of Appeals to the Supreme Court of the United States. Sec. 251. In any case in which the judgment or decree of said Court of Appeals is made final by the section last pre- ceding, it shall be competent for the Supreme Court of the United States to require, by certiorari or otherwise, any such case to be certified to it for its review and determination, with the same power and authority in the case as if it had been carried by writ of error or appeal to said Supreme Court. It shall also be competent for said Court of Appeals, in any case in which its judgment or decree is made final imder the section last preceding, at any time to certify to the Supreme Court of the United States any questions or propositions of law concerning which it desires the instruction of that court for their proper decision; and thereupon the Supreme Court may either give its instruction on the questions and proposi- tions certified to it, which shall be binding upon said Court of Appeals in such case, or it may require that the whole record and cause be sent up to it for its consideration, and thereupon shall decide the whole matter in controversy in the same manner as if it had been brought there for review by writ of error or appeal. Sec. 252. The Supreme Court of the United States is hereby invested with appellate jurisdiction of controversies arising in bankruptcy proceedings, from the courts of bank- ruptcy, from which it has appellate jurisdiction in other cases; and shall exercise a like jurisdiction from courts of bank- ruptcy not within any organized circuit of the United States and from the Supreme Court of the District of Columbia. An appeal may be taken to the Supreme Court of the United States from any final decision of a Court of Appeals allowing or rejecting a claim imder the laws relating to bankruptcy, under such rules and within such time as may be prescribed by said Supreme Court, in the following cases and no other : First. Where the amount in controversy exceeds the sum of two thousand dollars, and the question involved is one which might have been taken on appeal or writ of error from the 814 ADDENDA highest court of a State to the Supreme Court of the United States; or Second. Where some justice of the Supreme Court shall certify that in his opinion the determination of the question involved in the allowance or rejection of such claim is essen- tial to a uniform construction of the laws relating to bank- ruptcy throughout the United States. Controversies may be certified to the Supreme Court of the United States from other courts of the United States, and the former court may exercise jurisdiction thereof, and may issue writs of certiorari pursuant to the provisions of the United States laws now in force or such as may be hereafter enacted. i Sec. 253. Cases on writ of error to revise the judgment of a State court in any criminal case shall have precedence on the docket of the Supreme Court, of all cases to which the Gov- ernment of the United States is not a party, excepting only such cases as the court, in its discretion, may decide to be of public importance. Sec. 254. There shall be taxed against the losing party in each and every cause pending in the Supreme Court the cost of printing the record in such case, except when the judgment is against the United States. Sec. 255. Any woman who shall have been a member of the bar of the highest court of any State or Territory, or of the Court of Appeals of the District of Columbia, for the space of three years, and shall have maintained a good stand- ing before such court, and who shall be a person of good moral character, shall, on motion, and the production of such record, be admitted to practice before the Supreme Court of the United States. AN ACT TO CODIFY, ETC. 815 Chapter Eleven PROVISIONS COMMON TO MORE THAN ONE COURT Sec. 256. Cases in which jurisdiction of United States courts shall be exclusive of State courts. 257. Oath of United States judges. 258. Judges prohibited from prac- ticing law. 259. Traveling expenses, etc., of circuit justices and circuit and district judges. 260. Salary of judges after resig- nation. 261. Writs of ne exeat. 262. Power to issue writs. 263. Temporary restraining or- ders. 264. Injunctions; in what cases judge may grant. 265. Injunctions to stay proceed- ings in State courts. 266. Injunctions based upon al- Seo. leged unconstitutionality of State statutes; when and by whom may be granted. When suits in equity may be maintained. 268. Power to administer oaths and punish contempts. New trials. Power to hold to security for the peace and good be- havior. Power to enforce awards of foreign consuls, etc., in certain cases. 272. Parties may manage their causes personally or by counsel. Certain officers forbidden to act as attorneys. Penalty for violating preced- ing section. 267. 269 270 271. 273. 274 Sec. 256. The jurisdiction vested in the courts of the United States in the cases and proceedings hereinafter men- tioned, shall be exclusive of the courts of the several States: First. Of all crimes and offenses cognizable under the authority of the United States. Second. Of all suits for penalties and forfeitures incurred imder the laws of the United States. Third. Of all civil causes of admiralty and maritime juris- diction; saving to suitors, in all cases, the right of a common- law remedy, where the common law is competent to give it. Fourth. Of all seizures imder the laws of the United States, on land or on waters not within admiralty and maritime jurisdiction; of all prizes brought into the United States; and of all proceedings for the condemnation of property taken as prize. 816 ADDENDA Fifth. Of all cases arising under the patent-right, or copy- right laws of the United States. Sixth. Of all matters and proceedings in bankruptcy. Seventh. Of all controversies of a civil nature, where a State is a party, except between a State and its citizens, or between a State and citizens of other States, or aliens. Eighth. Of all suits and proceedings against ambassadors, or other public ministers, or their domestics, or domestic servants, or against consuls or vice-consuls. Sec. 257. The justices of the Supreme Court, the circuit judges, and the district judges, hereafter appointed, shall take the following oath before they proceed to perform the duties of their respective offices: "I, , do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially dis- charge and perform all the duties incumbent upon me as . according to the best of my abilities and understand- ing, agreeably to the Constitution and laws of the United States: So help me God." Sec. 258. It shall not be lawful for any judge appointed under the authority of the United States to exercise the profession or employment of counsel or attorney, or to be engaged in the practice of the law. Any person offending against the prohibition of this section shall be deemed guilty of a high misdemeanor. Sec. 259. The circuit justices, the circuit and district judges of the United States, and the judges of the District Courts of the United States in Alaska, Hawaii, and Porto Rico, shall each be allowed and paid his necessary expenses of travel, and his reasonable expenses (not to exceed ten dollars per day) actually incurred for maintenance, consequent upon his attending court or transacting other official business in pursuance of law at any place other than his official place of residence, said expenses to be paid by the marshal of the district in which such court is held or official business trans- acted, upon the written certificate of the justice or judge. The official place of residence of each justice and of each circuit judge while assigned to the Commerce Court shall be AN ACT TO CODIFY, ETC. 817 at Washington; and the official place of residence of each circuit and district judge, and of each judge of the District Courts of the United States in Alaska, Hawaii, and Porto Rico, shall be at that place nearest his actual residence at which either a Circuit Court of Appeals or a District Court is regularly held. Every such judge shall, upon his appoint- ment, and from time to time thereafter whenever he may change his official residence, in writing notify the Department of Justice of his official place of residence. Sec. 260. When any judge of any court of the United States appointed to hold his office during good behavior resigns his office, after having held a commission or commis- sions as judge of any such court or courts at least ten years continuously, and having attained the age of seventy years, he shall, during the residue of his natural hfe, receive the salary which is payable at the time of his retirement for the office that he held at the time of his resignation. Sec. 261. Writs of ne exeat may be granted by any justice of the Supreme Court, in cases where they might be granted by the Supreme Court; and by any district judge, in cases where they might be granted by the District Court of which he is a judge. But no writ of ne exeat shall be granted unless a suit in equity is commenced, and satisfactory proof is made to the court or judge granting the same that the defendant designs quickly to depart from the United States. Sec. 262. The Supreme Court and the District Cfourts shall have power to issue writs of scire facias. The Supreme Court, the Circuit Courts of Appeals, and the District Courts shall have power to issue all writs not specifically provided for by statute, which may be necessary for the exercise of their respective jurisdictions, and agreeable to the usages and principles of law. Sec. 263. Whenever notice is given of a motion for an injunction out of a District Court, the court or judge thereof may, if there appears to be danger of irreparable injury from delay, grant an order restraining the act sought to be en- joined until the decision upon the motion; and such order may be granted with or without security, in the discretion of the court or judge. 52 818 ADDENDA Sec. 264. Writs of injunction may be granted by any justice of the Supreme Court in cases wliere tliey might be granted by the Supreme Court; and by any judge of a Dis- trict Court in cases where they might be granted by such court.. But no justice of the Supreme Court shall hear or allow any application for an injunction or restraining order in any cause pending in the circuit to which he is allotted, elsewhere than within such circuit, or at such place outside of the same as the parties may stipulate in writing, except when it cannot be heard by the district judge of the district. In case of the absence from the district of the district judge, or of his disability, any circuit judge of the circuit in which the district is situated may grant an injunction or restraining order in any case pending in the District Court, where the same might be granted by the district judge. Sec. 265. The writ of injunction shall not be granted by any court of the United States to stay proceedings in any court of a State, except in cases where such injunction may be authorized by any law relating to proceedings in bankruptcy. Sec. 266. No interlocutory injunction suspending or re- straining the enforcement, operation, or execution of any statute of a State by restraining the action of any officer of such State in the enforcement or execution of such statute, or in the enforcement or execution of an order made by an administrative board or commission acting under and pur- suant to the statutes of such State, shall be issued or granted by any justice of the Supreme Court, or by any District Court of the United States, or by any judge thereof, or by* any circuit judge acting as district judge, upon the ground of the unconstitutionality of such statute, unless the ap- plication for the same shall be presented to a justice of the Supreme Court of the United States, or to a circuit or dis- trict judge, and shall be heard and determined by three judges, of whom at least one shall be a justice of the Su- preme Court, or a circuit judge, and the other two may be either circuit or district judges, and unless a majority of said three judges shall concur in granting such application. Whenever such application as aforesaid is presented to a justice of the Supreme Court, or to a judge, he shall imme- AN ACT TO CODIFY, ETC. 819 diately call to his assistance to hear and determine the appli- cation two other judges: Provided, however, That one of such three judges shall be a justice of the Supreme Court, or a circuit judge. Said application shall not be heard or deter- mined before at least five days' notice of the hearing has been given to the governor and to the attorney general of the State, and to such other persons as may be defendants in the suit: Provided, That if of opinion that irreparable loss or damage would result to the complainant unless a temporary restraining order is granted, any justice of the Supreme Court, or any circuit or district judge, may grant such tem- porary restraining order at any time before such hearing and determination of the application for an interlocutory in- junction, but such temporary restraining order shall remain in force only until the hearing and determination of the application for an interlocutory injunction upon notice as aforesaid. The hearing upon such application for an inter- locutory injunction shall be given precedence and shall be in every way expedited and be assigned for a hearing at the earliest practicable day after the expiration of the notice hereinbefore provided for. An appeal may be taken direct to the Supreme Court of the United States from the order granting or denying, after notice and hearing, an interlocu- tory injunction in such case. It is further provided, that if before the final hearing of such application, a suit shall have been brought in a court of the State havmg jurisdiction thereof, under the laws of such State, to enforce such statute or order, accompanied by a stay in such State comi;, of pro- ceedings under such statute, or order, pending the deter- mination of such suit by such State court, all proceedmgs in any court of the United States to restrain the execution of such statute or order, shall be stayed pending the final deter- mination of such suit in the courts of the State. Such stay may be vacated upon proof made after hearing and notice of ten days served upon the Attorney General of the State, that the suit in the State courts is not being prosecuted with diligence and good faith. (As amended hy the Ad of March Srd,1913. 37 Stat. L.) Sec. 267. Suits in equity shall not be sustained m any court 820 ADDENDA of the United States in any case where a plain, adequate, and complete remedy may be had at law. Sec. 268. The said courts shall have power to impose and administer all necessary oaths, and to punish, by fine or imprisonment, at the discretion of the court, contempts of their authority: Provided, That such power to punish con- tempts shall not be construed to extend to any cases except the misbehavior of any person in their presence, or so near thereto as to obstruct the administration of justice, the mis- behavior of any of the officers of said courts in their official transactions, and the disobedience or resistance by any such officer, or by any party, juror, witness, or other person to any lawful writ, process, order, rule, decree, or command of the said courts. Sec. 269. All of the said courts shall have power to grant new trials, in cases where there has been a trial by jury, for reasons for which new trials have usually been granted in the courts of law. Sec. 270. The judges of the Supreme Court and of the Circuit Courts of Appeals and District Courts, United States commissioners, and the judges and other magistrates of the several States, who are or may be authorized by law to make arrests for offenses against the United States, shall have the like authority to hold to security of the peace and for good behavior, in cases arising under the Constitution and laws of the United States, as may be lawfully exercised by any judge or justice of the peace of the respective States, in cases cognizable before them. "Sec. 271. The District Courts and the United States commissioners shall have power to carry into effect, accord- ing to the true intent and meaning thereof, the award or arbitration or decree of any consul, vice consul, or commercial agent of any foreign nation, made or rendered by virtue of authority conferred on him as such consul, vice consul, or commercial agent, to sit as judge or arbitrator in such differences as may arise between the captains and crews of the vessels belonging to the nation whose interests are com- mitted to his charge, application for the exercise of such power being first made to such court or commissioner, by AN ACT TO CODIFY, ETC. §21 petition of such consul, vice consul, or commercial agent. And said courts and commissioners may issue all proper remedial process, mesne and final, to carry into full effect such award, arbitration, or decree, and to enforce obedience thereto by imprisonment in the jail or other place of con- finement in the district in which the United States may law- fully imprison any person arrested under the authority of the United States, until such award, arbitration, or decree is complied with, or the parties are otherwise discharged there- from, by the consent ua writing of such consul, vice consul, or commercial agent, or his successor in office, or by the author- ity of the foreign government appointing such consul, vice consul, or commercial agent: Provided, however, That the expenses of the said imprisonment and maintenance of the prisoners, and the cost of the proceedings, shall be borne by such foreign government, or by its consul, vice consul, or commercial agent requiring such imprisonment. The mar- shals of the United States shall serve all such process; and do all other acts necessary and proper to carry into effect the premises, under the authority of the said courts and com- missioners. Sec. 272. In all the courts of the United States the parties may plead and manage their own causes personally, or by the assistance of such coimsel or attorneys at law as, by the rules of the said courts, respectively, are permitted to manage and conduct causes therein. Sec. 273. No clerk, or assistant or deputy clerk, of any Territorial, district, or Circuit Court of Appeals, or of the Court of Claims, or of the Supreme Court of the United States, or marshal or deputy marshal of the United States within the district for which he is appointed, shall act as a solicitor, proctor, attorney, or counsel in any cailse depending in any of said courts, or in any district for which he is acting as such officer. Sec. 274. Whoever shall violate the provisions of the pre- ceding section shall be stricken from the roll of attorneys by the court upon complaint, upon which the respondent shall have due notice and be heard in his defense; and in the case 822 ADDENDA of a marshal or deputy marshal so acting, he shall be recom- mended by the court for dismissal from office. [Chapter twelve relates to Juries.] Chapteh Thirteen general provisions Sec. Sec. 289. Circuit Courts abolished; rec- 293. Sections 1 to 5, Revised ords of to be transferred Statutes, to govern con- to District Courts. struction of this act. 290. Suits pending in Circuit 294. Laws revised in this act to be Courts to be disposed of in construed as continuations District Courts. of ejdsting laws. 291. Powers and duties of Circuit 295. Inference of legislative con- Courts imposed upon Dis- struction not to be drawn trict Courts. by reason of arrangement 292. References to laws revised in of sections. this act deemed to refer to 296. Act may be designated as sections of act. "The Judicial Code." Sec. 289. The Circuit Courts of the United States, upon the taking effect of this Act, shall be, and hereby are, abol- ished; and thereupon, on said Hate, the clerks of said courts shall deliver to the clerks of the District Courts of the United States for their respective districts all the journals, dockets, books, files, records, and other books and papers of or belong- ing to or in any manner connected with said Circuit Courts; and shall also on said date deliver to the clerks of said Dis- trict Courts all moneys, from whatever source received, then remaining in their hands or imder their control as clerks of said Circuit Courts, or received by them by virtue of their said offices. The journals, dockets, books, files, records, and other books and papers so delivered to the clerks of the sev- eral District Courts shall be and remain a part of the official records of said District Courts, and copies thereof, when certified under the hand and seal of the clerk of the district Court, shall be received as evidence equally with the originals thereof; and the clerks of the several District Courts shall have the same authority to exercise all the powers and to perform all the duties with respect thereto as the clerks of the AN ACT TO CODIFY, ETC. 823 several Circuit Courts had prior to the takmg effect of this Act. Sec. 290. All suits and proceedings pending in said Circuit Courts on the date of the taking effect of this Act, whether originally brought therein or certified thereto from the District Courts, shall thereupon and thereafter be proceeded with and disposed of in the District Courts in the same manner and with the same effect as if originally begun therein, the record thereof being entered in the records of the Circuit Courts so transferred as above provided. Sec. 291. Wherever, in any law not embraced within this Act, any reference is made to, or any power or duty is con- ferred or imposed upon, the Circuit Courts, such reference shall, upon the taking effect of this Act, be deemed and held to refer to, and to confer such power and impose such duty upon, the District Courts. Sec. 292. Wherever, in any law not contained within this Act, a reference is made to any law revised or embraced herein, such reference, upon the taking effect hereof, shall be construed to refer to the section of this Act into which has been carried or revised the provision of law to which reference is so made. Sec. 293. The provisions of sections one to five, both in- clusive, of the Revised Statutes, shall apply to ,and govern the construction of the provisions of this Act. The words "this title," wherever they occiu- herein, shall be construed to mean this Act. Sec. 294. The provisions of this Act, so far as they are substantially the same as existing statutes, shall be construed as continuations thereof, and not as new enactments, and there shall be no impUcation of a change of intent by reason of a change of words in such statute, unless such change of intent shall be clearly manifest. Sec. 295. The arrangement and classification of the several sections of this Act have been made for the purpose of a more convenient and orderly arrangement of the same, and there- fore no inference or presumption of a legislative construction is to be drawn by reason of the chapter under which any particular section is placed. 824 ADDENDA Sec. 296. This Act may be designated and cited as "The Judicial Code." Chapter Fouhteen repealing provisions Sec. Sec. 297. Sections, acts, and parts of 300. Offenses' committed, and acts repealed. penalties, forfeitures, and 298. Repeal not to affect tenure of liabilities incurred, how to office, or salary, or com- be prosecuted and en- pensation of incumbents, forced. etc. 301. Date this act shall be ef- 299. Accrued rights, etc., not fective. affected. Sec. 297. The following sections of the Revised Statutes and Acts and parts of Acts are hereby repealed: Sections five hundred and thirty to five hundred and sixty, both inclusive; sections five hundred and sixty-two to five hundred and sixty-four, both inclusive; sections five hundred and sixty-seven to six hundred and twenty-seven, both in- clusive; sections six hundred and twenty-nine to six hundred and forty-seven, both inclusive; sections six hundred and fifty to six hundred and ninety-seven, both inclusive; section six hundred and ninety-nine; sections seven hundred and two to seven hundred and fourteen, both inclusive; sections seven hundred and sixteen to seven hundred and twenty, both inclusive; section seven hundred and twenty-three; sections seven hundred and twenty-five to seven himdred and forty-nine, both inclusive; sections eight hundred to eight hundred and twenty-two, both inclusive; sections ten hun- dred and forty-nine to ten hundred and eighty-eight, both inclusive; sections ten hundred and ninety-one to ten hundred and ninety-three, both inclusive, of the Revised Statutes. "An Act to determine the jurisdiction of Circuit Courts of the United States and to regulate the removal of causes from State courts, and for other purposes," approved March third, eighteen hundred and seventy-five. Section five of an Act entitled "An Act to amend section AN ACT TO CODIFY, ETC. 825 t fifty-three hundred and fifty-two of the Revised Statutes of the United States, in reference to bigamy, and for other purposes," approved March twenty-second, eighteen hun- dred and eighty-two'; but sections si}{, seven, and eight of said Act, and sections one, two, and twenty-six of an Act entitled "An Act to amend an Act entitled 'An Act to amend section fifty-three hundred and fifty-two of the Revised Statutes of the United States, in reference to bigamy, and for other purposes,' approved March twenty-second, eighteen himdred and eighty-two," approved March third, eighteen himdred and eighty-seven, are hereby continued in force. "An Act to afford assistance and relief to Congress and the executive departments in the investigation of claims and demands against the Government," approved March third, eighteen hundred and eighty-three. "An Act regulating appeals from the Supreme Court of the District of Columbia and the Supreme Courts of the several Territories," approved March third, eighteen hundred and eighty-five. "An Act to provide for the bringing of suits against the Government of the United States," approved March third, eighteen hundred and eighty-seven, except sections four, five, six, seven, and ten thereof. Sections one, two, three, four, six, and seven of an Act entitled "An Act to correct the enrollment of an Act approved March third, eighteen himdred and eighty-seven, entitled 'An Act to amend sections one, two, three, and ten of an Act to determine the jurisdiction of the Circuit Courts of the United States, and to regulate the removal of causes from State courts, a,nd for other purposes,' approved March third, eighteen hundred and seventy-five," approved August thirteenth, eighteen hundred and eighty-eight. "An Act to withdraw from the Supreme Court jurisdiction of criminal cases not capital and confer the same on the Circuit Courts of Appeals," approved January twentieth, eighteen hundred and ninety-seven. "An Act to amend sections one and two of the Act of March third, eighteen hundred and eighty-seven. Twenty- fourth Statutes at Large, chapter three hundred and fifty- 826 ADDENDA nine," approved June twenty-seventh, eighteen hundred and ninety-eight. "An Act to amend the seventh section of the Act entitled 'An Act to establish Circuit Courts of Appeals and to define and regulate in certain cases the jurisdiction of the courts of the United States, and for other purposes,' approved March third, eighteen hundred and ninety-one, and the several Acts amendatory thereto," approved April fourteenth, nine- teen himdred and six. All Acts and parts of Acts authorizing the appointment of United States circuit or district judges, or creating or chang- ing judicial circuits, or judicial districts or divisions thereof, or fixing or changing the times or places of holding court therein, enacted prior to February first, nineteen hundred and eleven. Sections one, two, three, four, five, the first paragraph of section six, and section seventeen of an Act entitled "An Act to create a commerce court, and to amend an Act entitled 'An Act to regulate commerce,' approved February fourth, eighteen hundred and eighty-seven, as heretofore amended, and for other purposes," approved June eighteenth, nineteen himdred and ten. Also all other Acts and parts of Acts, in so far as they are embraced within and superseded by this Act, are hereby repealed; the remaining portions thereof to be and remain in force with the same effect and to the same extent as if this Act had not been passed. Sec. 298. The repeal of existing laws providing for the* appointment of judges and other officers mentioned in this Act, or affecting the organization of the courts, shall not be construed to affect the tenure of office of the inciunbents (except the office be aboUshed), but they shall continue to hold their respective offices during the terms for which ap- pointed, unless removed as provided by law; nor (except the office be abohshed) shall such repeal affect the salary or fees or compensation of any officer or person holding office or position by virtue of any law. Sec. 299. The repeal of existing laws, or the amendments thereof, embraced in this Act, shall not affect any act done, AN ACT TO CODIFY, ETC. 827 or any right accruing or accrued, or any suit or proceeding, including those pending on writ of error, appeal, certificate, or writ of certiorari, in any appellate court referred to or included within, the provisions of this Act, pending at the time of the taking effect of this Act, but all such suits and proceedings, and suits and proceedings for causes arising or acts done prior to such date, may be commenced and prosecuted within the same time, and with the same effect, as if said repeal or amendments had not been made. Sec. 300. All offenses committed, and all penalties, for- feitures, or liabilities incurred prior to the taking effect hereof, under any law embraced in, amended, or repealed by this Act, may be prosecuted and punished, or sued for and re- covered, in the District Courts, in the same manner and Avith the same effect as if this Act had not been passed. Sec. 301. This Act shall take effect and be in force on and after January first, nineteen hundred and twelve. Approved, March 3, 1911, oh. 231, 36 Stat, at L. ch. 231, U. S. Comp. Stat. Sup. 1911, p. 128. FORMS Restraining Order Pending Application for Injunction In the United States District Court in and for the District of , Term, 19-. Whereas, in the above cause a motion for the issuance of a preliminary writ of injunction has been duly filed, the hearing thereof being fixed for the — • day of , 19- and it having been made to appear that there is danger of irreparable injury being caused to com- plainant before the hearing of said application for the writ of injunction, unless the said defendants are, pending such hearing, restrained as herein set forth, therefore complainant's application for such restraining order is granted (if security is required, then add upon his giving good security in the sum of — — — ■ — ■, for malong good to the defendants the damages and costs that may be awarded them by reason of the granting of this order) : Now, therefore, take notice that you, and , defendants herein, your agents, servants, and attorneys, and each of you, are hereby specially restrained and enjoined from (here insert the act or acts sought to be restrained) until the hearing upon said application for a writ of injunction and the further order of the court in the premises. Judge. Order Granting Preliminary Injunction ' In the United States District Court in and for the District of , — Term, 19-. Whereas, in the above entitled cause, an application for the issuance of a preliminary writ of injunction was duly filed and set down for hear- ing before the court (or, before the Honorable , a judge of said court), on the day of , 19-, at , 1 See Sec. 266, Judicial Code, ante, p. 817. 828 FORMS 829 notice of such application being given to ■ and ; > defendants herein; and the parties now appearing by their soUcitors and being heard upon such appUcation, and it appear- ing that cause exists for the granting of a writ of injunction, pending thefinal hearing of the cause, as prayed for: It is therefore ordered that upon the complainant giving securi^, by bond, in the sum of , conditioned that {here insert the proper conditions) a writ of injunction issue commanding, restraining, and enjoining the defendants, their agents, servants, and attorneys, from {here set forth the special matter sought to be enjoined) until the further order of the court in the premises. Done and ordered this day of , A. D. Judge. Writ of Preliminary Injunction In the United States District Court in and for the District of , Term, 19-. The President of the United States, To and Whereas, in the above entitled cause, now pending in said District Court of the United States in and for the — ■ — district of , upon appUcation duly made to the court {or if to a Justice of the Supreme Court or a Circuit or District judge, so state, giving his name) it was on the day of , 19-, ordered that a preliminary writ of injunction issue therein as prayed for in the bill of complaint herein filed and as directed in said order: Now, therefore, know ye, that you, and ■ -, your agents, servants, and attorneys, and each of you, are hereby strictly restrained and enjoined from {here set forth clearly the act or acts sought to be restrained) and you and each of you are hereby commanded that you do desist and refrain from doing or causing to be done all or any of the acts and thmgs hereinabove recited and set forth, until the further order of the court in the premises. Witness, the Honorable Edward Douglass White, Chief Justice of the Supreme Court of the United States, and the seal of said District Court this day of a. d. 19-. , Clerk. Note. No interlocutory injunction restraining the enforcement of any statute of a State through its officers may be granted upon the ground of the unconstitutionality of such statute unless heard by three judges of whom one must be a justice of the Supreme Court or a Circuit judge. Section 266, Judicial Code, ante, page 817. 830 ADDENDA Form of Petition for Removal from a State Court Where the Ad- verse Parties are all Citizens of Different States Under Section 28, Judicial Code In the Court or County, State of . plaintiffs, • defendants, Petition for Removal. To said Court. Your petitioner, , respectfully shows to this honorable court that the amount in dispute in the above entitled suit exceeds, exclusive of costs, the sum or value of three thousand dollars; that (!he controversy in said suit is between citizens of different States; that each adverse party is a citizen of different States; that your petitioner was at the time of the commencement of this suit, and still is a citizen of the State of , and that then was, and still is, a citizen of the State of , and that — ■ — ■ — — ■ then was, and stiU is, a citizen of the State of , (and so state the citizenship of other parties) and that this application is within the time prescribed by law. Your petitioner offers herewith a bond with good and sufficient surety for his entering in said District Court of the United States, on the first day of its next session, a copy of the record in this suit, and for paying all costs that may be awarded by said District Court, if said court shall hold that this suit was wrongfully or improperly removed thereto. And he prays this court to proceed no further herein, except to make the order of removal required by law, and to accept the said surety and bond, and to cause the record herein to be removed into said District Court of the United States in and for the district of . by , his attorney. It may be verified in the following form: State of — County of - I, being duly sworn, do say that I am one of the defendants in the above entitled cause; that I have read the foregoing petition and know the contents thereof; and that the statements therein contained are true, as I verily believe. Subscribed by the said — • in my presence, and by him sworn to before me, this the day of , a. d. 19-. Notary Public for ■ My Commission expires FORMS 831 Bond for the Removal of a Cause under Section 29, Judicial< Code [Title of cause.] Know all men by these presents, that I, , as prin- cipal, and , as surety, are held and &mly bound unto in the penal sum of dollars, the pay- ment whereof well and truly to be made unto the said , heirs and assigns, we bind ourselves, our heirs, and representatives jointly and severally, firmly by these presents. The condition of this bond is that the said , having petitioned the Court of county. State of , for the removal of a certain cause pending therein, wherein is plaintiff and , defendant, to jthe District Court of the United States in and for the district of . Now, it the said , shall enter in said District Court of the United States, within 30 days' from the date of the petition filed herein, a certified copy of the record in said suit, and shall well and truly pay all costs that may be awarded by the said District Court of the United States, if said court shall hold that said suit was wrongfully or improperly removed thereto (if special bail was originally requisite in said cause, then add, "and shall then and there appear and enter special bail in said suit"), then this obligation to be void; otherwise in full force and virtue. Witness our hands and seals, this day of ■ , A. d. 19-. [L.S.] IL. S.] It is advisable that the sureties justify, but not absolutely- necessary. Note: By section 29, Judicial Code, written notice of the petition and bond for removal must be given the adverse party prior to filing the Order of State Court for the Removal of Cause At a term of the Court for the State of ■ held in the city of on the day of , a. d. 19-. Present: Honorable , Judge. On the pleadings and proceedings herein, and on the petition and bond filed herein by the defendant under the statutes of the United States, 832 ADDENDA and on motion of , defendant's attorney, it is ordered that the security offered by the defendant be accepted and said bond approved, and that the State court proceed no further in this cause, and that this cause be removed into the United States District Court in and for the district of . , Clerk. Notice of the Removal of a Cause Circuit Court op United States : — fob the Dis- trict OP . To , attorney for the plaintiff: Please take notice that on the day of , 19- by an order of the Court of the State of , the above entitled cause was transferred to the District Court of the United States for the district of . , defendant's attorney. [date.] Note: The provision of Sec. 29, Judicial Code, that the party re- moving a cause into the Federal courts shall within thirty days plead answer or demur to the declaration or complaint does not prohibit a plea to the jurisdiction over the defendant obtained in the State court because process was not served on the defendant, since by Section 38, Judicial Code, all suits removed proceed in the Federal court as if the suit had been originally comm^ced in that court. Cain V. Commercial Pubhshing Co., 232 U. S. 124, decided January 19, 1914. Although by the statutes of the State or the rules of the court all appearances are required to be general, the conformity act (Revised Statutes, Sec. 914, U. S. Comp. Stats. 1901, L. 684), does not pre- vent the defendant upon fiUng a petition for removal from entering in the Federal court a special appearance, and filing a plea to the jurisdic- tion over his person claimed to have been acquired by an alleged service of process from the State court before the cause was removed. lb. Form of Writ of Certiorari Under Sec. 39 of the Act of Mar. 3, 1911 The President of the United States of America to the judge of the Court of (here describe the court). Whereas it has been represented to the District Court of the United States for the district of that a certain suit was commenced FORMS 833 in the Court of (here name the State court), wherein - -, a citizen of the State of , is plaintiff, and the said a citizen of the State of , is de- fendant; and that the said ■ duly filed in the said State court his petition for the removal oT said cause into the said Dis- trict Court of the United States, and filed with said petition the bond with surety required by the Act of Congress of Mar. 3, 1911, entitled, " An Act to codify and revise the laws relating to the judiciary," and that the clerk of the said State court above named has refused to the said petitioner for the removal of said cause a copy of the record therein, though his legal fees therefor have been tendered by the said petitioner: You, therefore, are hereby commanded that you forthwith certify, or cause to be certified to the District Court of the United States for the district of , a full, true and complete copy of the record and proceedings in the said cause, in which the said petition for removal was filed as aforesaid, plainly and distinctly, and in as full and ample a manner as the same now remain before you, together with this writ; so that the said District Court may be able to proceed therein and do what to them shall appear of right ought to be done. Herein fail not. Witness, the Honorable Edward Douglass White, Chief Justice of the Supreme Court, and the seal of the said District Coxul; hereto affixed, this the day of , a. d. 19-. , Clerk of said Circuit Court. Instructions as to Applications for Writs of Certiorari under Sec. 240 of the Judicial Code The following are the requirements of the Supreme Court on applica- tions for writs of certiorari under Sec. 240 of the Judicial Code. Petitions are docketed m the Supreme Court as— , Petitioner, 0. , Respondent. Before the petition wiU be docketed there must be furnished the Clerk: 1. An original petition contaming a short statement of the matter in- volved, and the general reasons reUed on for aUowance of the writ, with written signature of counsel. 2. A certified copy of the transcript of the record, imiludmg all pro- ceedings in the Circuit Court of Appeals. 3. An appearance of counsel for petitioner, signed by a member ot the bar of the Supreme Court. 4 A deposit of $25 on account of costs. Before submission of the petition there must be furnished: 1 Proof of service of notice of date fixed for submission and of copies of petition, and of brief upon counsel for the respondent Two weeks notice should be given. (See Supreme Court lUik 37, ante, page 188.) 2, Thirty printed copies of the petition. 53 834 ADDENDA 3. Thirty printed copies of brief in support of petition, if any such brief is to be filed. 4. At least nine uncertified copies of the record, which must contain all the proceedings in the Circuit Court of Appeals. These copies may be made up by using copies of the record as printed for the Circuit Court of Appeals and adding thereto printed copies of the proceedings in that court. If a sufficient number of records thus made up cannot be ob- tained, making it necessary to reprint the record for use on the hearing of the petition, fifty copies must be printed under supervision of the Clerk of the Supreme Court in order that, should the petition be granted, there may be a sufficient number for use on the final hearing. Monday being motion day, some Monday must be fixed upon for the submission of the petition. No oral argument is permitted on such petitions, but they must be called up and submitted in open court by counsel for petitioner, or by some attorney in his behalf. All papers in the case must be filed not later than the Saturday pre- ceding the Monday fixed for the submission of the petition. Writ of Error from the Supreme Court to a Federal Court United States or America, ss: The President of the United States to the Honorable the Judge of the District Court of the United States for the district of (or to4he Judges of the Circuit Court of Appeals for the circuit), Greeting: BECAtrsB, in the record and the proceedings, as also in the rendition of the judgment of a plea which is in the said Court before you, between and , a manifest error hath happened, to the great damage of the said , as by complaint appears. We being willing that error, if any hath been, should be duly corrected, and fuU and speedy justice done to the parties aforesaid in this behalf, do command you, if judgment be therein given, that then under your seal, distinctly and openly, you send the record and proceed- ings aforesaid, with all things concerning the same, to the Supreme Court of the United States, together with this writ, so that you have the same at Washington, within days from the date hereof; that the record and proceedings aforesaid being inspected, the said Supreme Court may cause further to be done therein to correct that error what of right, and according to the laws and custom of the United States, should be done. Witness, the honorable Edward Douglass White, Chief Justice of the said Supreme Court, this day of , in the year of our Lord one thousand nine hundred-and . [L. S.] Clerk of the Supreme Court of the United States, Allowed (to operate as a supersedeas) by , Associate Justice of the Supreme Court of the United States. FORMS 835 Writ of Error from the Supreme Court to a State Court « United States op America, bs: The President of the United States to the Honorable the (Jiidges, Judge or Justice of the court to which the writ runs), Greeting: Because, in the record and proceedings, as also in the rendition of the judgment of a plea which is in the said court of before you, or some of you, being the highest court of law or equity of the said State in which a decision could be had in the said suit between and — — , wherein was drawn in question the vaUdity of a treaty of (or statute of, or an authority exercised under) the United States, and the decision was against its vahdity (or wherein was drawn in question the vahdity of a statute of, or an authority exercised under, said State, on the ground of their being repugnant to the Constitution, treaties or laws of the United States, and the decision was in favor of such its vaUdity; or wherein was drawn in question the construction of a clause of the Constitution, or o^ a treaty of, or statute of, or commission held under, the United States, and the decision was against the title, right, privi- lege, or exemption specially set up or claimed under such clause of said Constitution, treaty, statute or commission) a manifest error hath happened to the great damage of the said , as by complaint appears. We being willing that error, if any hath been, should be duly corrected, and full and speedy justice done to the parties aforesaid in this behalf, do command you, if judgment therein be given, that then under your seal, distinctly and openly you send the record afid proceedings afore- said, with all things concerning the same, to the Supreme Court of the United States, together with this writ, so that you have the same at Washington, within days from the date hereof; that the record and proceedings aforesaid being inspected, the said Supi'eme Court may cause further to be done therein to correct that error what of right, and according to the laws and custom of the United States, should be done. Witness, the Honorable Edward Douglass White, Chief Justice of the said Supreme Court, the of in the year of our Lord one thousand nine hundred and . [L_ g ] Clerk of the Supreme Court of the United States (or clerk of the United States District Court of the Circuit in which the State is situated). Allowed (to operate as a supersedeas) by 1 Associate Justice of the Supreme Court of the United States. (Or Chief Justice of the Supreme Court of the State of .) Note- No writ of error to a State court can issue without allowance, either by the proper judge of the State court or a Justice of the Su- preme Court (after an examination of the record of the State court). Gleason v. Florida, 9 Wall. 779, 19 L. ed. 731. 836 ADDENDA Held in- Norfolk and S. Turnpike Co. v. Virginia, 225 17. S. 264- 269, 56 L. ed. 1086, that where a writ of error is prdfeeouted to an alleged judgment or decree of a State court of last resort declining to allow a writ of error to a lower State court, or an appeal from such lower court, unless it plainly appears on the face of the record by an affirmance in express terms of the judgment or decree sought to be reviewed, that the refusal of the State court of last resort to allow an appeal or writ of error was the exercise by it of jurisdiction to review the case upon the merits, the appeal or writ of error will run to the lower State court, the judgment of which the Supreme Court will hold is final. Petition for Appeal to the Supreme Court In the United States District Court In and for the district of , Term,, 19-. To the Honorable Chief Justice wnd Associate Justices of the Supreme Court of the United States: Your petitioner, the in the above entitled cause, would respectfully represent and show that in the above entitled cause pending in the United States District Court in and for the district of — — — — , there was entered at the term, 19-, of said court a final decree greatly to the prejudice and injury of your petitioner, which said decree is erroneous and inequitable in many particulars. Wherefore, in order that your petitioner may obtain reUef in the premises, and have opportunity to show the errors complained of, your petitioner prays 'that he may be allowed an appeal in said cause to this honorable court and that the proper orders touching the security re- quired of him may be made. by , His Solicitor. Citation to the Supreme Court United States op America, To . You are hereby notified that in a certain cause in equity in the United States District Court for the district of wherein is complainant and and « , defendants, the therein has prayed an appeal to the Supreme Court of the United States from the decree in said cause entered, and that such appeal has been allowed; wherefore you are hereby cited and admonished to be and appear at the Supreme Court of the United States at Washington, within days from the date hereof, to show cause, if any there be, why the decree appealed FORMS 837 from should not be reversed and set aside, and relief be granted to said appellant as by him prayed and as to justice and equity may appertain. Witness, the Honorable Edward Douglass White, Chief Justice of the Supreme Court of the United States, this day of ^ 19-. Judge. Supreme Courts Rules. Rule S, Clause S. Bond on Appeal or Writ of Error {Title of cause.) Know all men by these presents that we, as principal and as sureties are held and firmly bound unto in the full and just sum of to be paid to the said , executors, administrators or assigns; to which payment, well and truly to be made, we bind ourselves, our heirs, executors and administrators, jointly and severally, by these presents. , Sealed with our seals and dated this day of , in the year of our Lord one thousand nine hundred and . Whereas, lately at a =— — , in a suit depending in the District Court of , between and , a final decree (or a final judgment) was rendered against the said — — - — : — , and the said — -^- — • having obtained the allowance of an appeal (or writ of qwor) and filed a copy thereof in the clerk's office of the ^id court to reverse the said decree (or judgment) in the aforesaid suit (or having prosecuted a writ of error in the Supreme Coprt of the United States to reverse the judgment aforesaid) and a citation having issued directed to the gaid , citing and admonishing him to be and appear at a Su- preme Court of the United States, at Washington, within days from the date hereof. Now the condition of the above obligations is such that if the said shaE prosecute his appeal (or writ of error) to effect, and answer all damages and costs if fail to make his plea good, then the above obligation to be void; else to remain in fuU force and virtue. ^ [L. S.], Sealed and delivered in the presence of i ^^ g j :• j [L. S.] Approved (to operate as a supersedeas) by — ^— — •" -^ — ' — ^^• (The Justice or Judge who allows the appeal or writ of error.) 838 ADDENDA Justification United States of America, District op - being duly sworn, depose and say each for himself that he is worth $ , over and above all just debts, liabilities and ex- emptions. Sworn to before me this day of , a. d. 19-. , Commissioner. Approved the within bond this day of , a. d. 19-. Clerk. If the petition for the allowance of a writ of error is pre- sented to an associate justice of the Supreme Court or to the chief justice of a State court, the above form of subscrip- tion may be varied accordingly. Section ^99, Rev. Stats. FORMS FOR USE IN THE UNITED STATES CIRCUIT COURT OF APPEALS Form of a Certificate from the Cifcuit Court of Appeals Under Sec. 239, of the Act of Mar. 3, 1911, The Judicial Code {Title of the Cmai.) {Title of the catise.) To the Honorable the Chief Justice and Associate Justices of the Su- preme Court of the United States: This cause comes to this court upon a writ of error to review a judg- ment of the Court of , entered upon a verdict of a jury in favor of , the in error who was the below. Upon examination of the record it appears that in addition to ques- tions as to the merits of the controversy presented by assignments of error, the jurisdiction of the District Court is in issue. This court therefore elects to reserve judgment upon the other ques- tions and to certify the question of jurisdiction'to the Supreme Court. Statement of Pacts: The action is for (here set out the nature of the action). The complainant avers . The complainant further avers and the answer admits . (Sufficient of the pleadings should be set out to enable the Supreme Court to determine the question of jurisdiction.) FOKMS 839 Upon the trial the plaintiff testified (here state such facts as may be necessary to a determination of the question of jurisdiction). There was no other testimony in any way bearing upon the plaintiff's residence or citizenship (or other fact upon which jurisdiction depended). Questions Certified: Had the District Court jurisdiction of the controversy between the plaintiff and defendant? In accordance with the provisions of sec. 239 of the Act of Mar. 3, 19H, entitled an Act to codify, revise and amend the laws relating to the judiciary, the foregoing question of law is by the Circuit Court of Appeals for the Circuit hereby certified to the Supreme Court. Witness my hand and official seal at this day of , A. D, 19-. , Clerk of the Circuit Court of Appeals for the Circuit. ' • Note: The certificate from the Circuit Court of Appeals is required to contain a proper statement of the facts upon which the questions of law to be answered arise. The court will deal only with the facts certi- fied and make answer only to questions of law. Questions of fact or mixed law and fact wiU not be answered. Graver v. Faurot, 162 V. S. 435, 40 L. ed. 1031. The entire record should not be certified. The entire case may be required to be certified by the Supreme Court when questions are cer- tified or when certiorari is issued to bring up a decision of the Circuit Court of Appeals that would otherwise be final. lb. Writ of Error United States op America, ss: The President of the United States of America, To the Honorable Judges of the ^ , Greeting : Because, in the records and proceedings, as also in the rendition of the judgment of a plea which is in the said Court, before you, at the Term, 19-, thereof, between '' a manifest error hath happened, to the great damage of the said ' as by complaint appears. We being willing that error, if any hath been, should be duly corrected, and full and speedy justice done to the parties aforesaid in this behalf, do command you, if judgment be therein given, that then, under your seal, distinctly and openly, you send the record and proceedings afore- said, with all things concerning the same, to the United States Circuit 1 Here insert correct name of the court to which the writ is addressed and whose judgment is to be reviewed. 2 Here insert correct style of cause showing who was plaintiff and who defendant in court below. ' Here insert name of party or parties who sue out writ of error. 840 ADDENDA Court of Appeals, for the Circuit, together with this writ, so that you have the said record and proceedings aforesaid at the city of , and filed in the office of the clerk of the United States Circuit Court of Appeals, for the Circuit, on or before the • day of ■ — — , 19-, to the end that the record and proceedings afore- said being inspected, the United States Circuit Court of Appeals may cause further to be done therein to correct that error, what of right, and according to the laws and customs of the United States, should be done. Witness, the Honorable Edward Douglass White, Chief Justice of the Supreme Court of the United States, this day of , in the year of our Lord one thousand nine hundred and . Issued at the Clerk's office in with the seal of the '' and dated as aforesaid. Clerk of Allowed by . , Judge. Form of Return to be Endorsed on Writ of Error by the Clerk of the Court to Which the Writ is Addressed United States of America, ss: In obedience to the command of the within writ, I herewith transmit to the United States Circuit Court of Appeals, for the Circuit, a duly certified transcript of the record and proceedings in the within entitled case, with all things concerning the same. In witness whereof, I hereto subscribe my name and affix the seal of r-^. Clerk of The following form of citation and bond is adapted for appeals in equity cases as well as in cases of writs of error in actions at law: ^ Consult Circuit Court of Appeals Rule 14, Clause 6, ante, page 255. In Eighth Circuit writs of error and appeals are returnable sixty days after citation is signed. In all other circuits, thirty days after. This blank must be filled accordingly, nam- ing a day not more than days after the date of the citation. In Eighth Circuit, 60 days. In all other circuits, 30 days. (See Eule 14, Clause S, Rules of Circuit Court of Appeals, Ante, page 264.) ^ See sec. 1004, Rer>. Slats., and sec. 262, Judicial Code. This blank should be so filled as to show whether the writ is issued by the clerk of a United States District Court or by the clerk of the Circuit Court of Appeals. 3 Here describe the court to which the writ is addressed. FORMS 841 Form of Citation United States op Amemca, To , Greeting: You are hereby cited and admonished to be and appear in the United States Ci rcuit Court of Appeals for the Circuit, at the city of • , within . (here insert 30 or 60 as required by Rule 14 Clause 5) days from and after the day this citation bears date, pursuant *o ' filed in the clerk's office of the " wherein "^ ' and you are « ^ , to show cause, if any there be, why the= ^ rendered against the said« as in said' mentioned should not be corrected, and why speedy justice should not be done the parties in that behalf. Witness, the Honorable « ~ , Judge of — • this - - ■ day. of , A. D. 19-. Judge of - Petition for Appeal to the Supreme Court from the Circuit Court of Appeals To the HoTurrable the Judges of the Circuit Court of Appeals for the Circuit. In the United States Circuit Court of Appeals, Circuit. No. . — «■ . Petition for Appeal to the Supreme Court of the United States from the Circuit Court of Appeals for the Circuit. The above mentioned (appellant or appellee in the Court of Appeals) respectfully shows that the above entitled cause is now pending in the United States Circuit Court of Appeals for the Circuit, and that (judgment or decree) therein has been rendered on the day of , 191-, (affirming or reversing) the (judgment or decree) of the District Court of the United States for the — — District of , and that the matter in controversy in said suit exceeds in value One Thousand Dollars ($1000.00), besides costs: that this cause is one in which the United States Circuit Court of Appeals for the Circuit has not final jurisdiction and that it is a proper cause to be reviewed by the Supreme Court of the United States on Appeal. ' Insert (a writ of error) or (an appeal allowed and). ^ Insert name of court to which writ of error is addressed, or from which appeal is allowed. h 3 Insert plaintiff in error or appellant. * Insert defendant in error or appeHee. s Insert judgment or decree. " Insert plaintiff in error or appellant. ' Insert writ of error or appeal. 8 As to who may sign citation, see sees. 998 and 999, Rn. State., V. S. add see. 132, Judicial Code. 842 ADDENDA Wherefore, the said appellant prays that an appeal be allowed (him or it) in the above entitled cause, directing the Clerk of the United States Circuit Court of Appeals for the Circuit to send the record and proceedings in said cause, with all things concerning the same, to the Supreme Court of the United States, in order that the errors complained of in the assignment of errors herewith filed by the said appellant may be reviewed, and if error be found, corrected ac- cording to the laws and customs of the United States. SoUcitor and Counsel for Appellant. Order Allowing Appeal from the Circuit Court of Appeals to the Supreme Court (to operate as supersedeas) In the United States Circuit Court of Appeals, — Circuit. No. . , Appellant, v. — , Appellee. It is hereby ordered that an appeal in the above entitled cause to the Supreme Court of the United States be, and is hereby, allowed, as prayed; and that it operate as a supersedeas; and that the decree of the District Court of the United States for the District of herein, dated the — — — ■ — day of , 191- (save and except the provision in said decree and the portion thereof enjoining the said defendant, officers and agents, and all persons claiming by, through or under said defendant, since the filing of the bill of com- plaint herein, from ), be hereby superseded pending said ap- peal, and until the same is finally heard and determined upon the ap- pellant, , filing in addition to the appeal bond herein, another good and sufficient bond herein in the sum of Dollars, condi- tioned as required by law, and that if the said do prosecute the same to effect, and if it fails to make its appeal good, shall pay and answer all damages, costs, charges and interest in the said cause, then the said obligation to be void. « (Signed) , United States Circuit Judge, Circuit. Form of Supersedeas or Cost Bond Know all Men by These Presents, ■ That we, , principal and and , as sure- ties are held and firmly bound unto in the full and just sum of *• to be paid to the said ■ heirs, executors, admin- istrators or assigns, to which payment well and truly to be made, we bind ourselves, our heirs, executors and administrators, jointly and severally by these presents. Sealed with our seals, and dated this day of , in the year of our Lord one thousand nine hundred and , FORMS 843 Whereas, lately at the term of the in a suit de- pending in said court between , plaintiff, and defendant, was rendered against the said and the ^^"^~ : ^^ obtained of the said court to reverse the in the aforesaid suit, and a citation directed to the said citing and admonishing to be and appear in the United St ates Cu-c uit Court of Appeals for the Circuit, at the city °' ' (here insert 30 or 60 as required by Rule 14 Clause 5) days from and after the date of said citation. Now, the condition of the above obligation is such, that if the said shall prosecute said to effect, and answer all dam- ages and costs if fail to make good — plea, then the above obligation to be void, else to remain in full force and virtue. [seal.] Sealed and deUvered in presence of [seal.] [seal.] Approved by , Judge. Form of Appearance Bond on Writ of Error in Criminal Cases Know all Men by These Presents: That we, , as principal, and , as sureties, are held and firmly bound unto the United States of America in the full and just sum of dollars, to be paid to the United States of America, to which payment well and truly to be made we bind ourselves, our heirs, executors and administrators jointly and severally by these presents. Sealed with our seals and dated this — day of in the year of our Lord, one thousand nine hundred and . Whereas, lately at the Term, a. d. 19-, of the District Court of the United States for the district of , in a suit depending in said court between the United States of America, plaintiff, and , defendant, a judgment and sentence was ren- dered against the said , and the said ha — obtained a writ of error from the United States Circuit Court of Appeals for the Circuit, to reverse the judgment and sentence in the aforesaid suit, and a citation directed to the said United States of America, citing and admonishing the United States of America to be and appear in the United States Circuit Court of Appeals for the Circuit, at the city of , (here insert 30 or 60 as required by Rule 14, Clause 5) days from and after the date of said citation, which citation has been duly served. Now the condition of the above obligation is such that if the said shall appear either in person or by attorney in the United states Circuit Court of Appeals for the Circuit on such day or days as may be appointed for the hearing of said cause in said court and 844 ADDENDA prosecute his said writ of error and shall abide by and obey all orders made by the United States Circuit Court of Appeals for the Circuit in said cause, and shall surrender himself in execution of the judgment and sentence appealed from as said court may direct, if the judgment and sentence against him shall be affirmed; and if he shall appear for trial in the Court of the United States for the district of on such day or days as Inay be appointed for a retrial by said ^- Court and abide and obey all orders made by said court provided the judgment and sentence against him shall be reversed by the United States Circuit Court of Appeals for the Circuit; then the above obUgation to be void, otherwise to remain in full force> virtue and effect. [SEAl,.] [seal.] [seal.] Approved: , Judge of the . APPEALS, WRITS OF ERROR, RECORDS Manner of Taking Appeals, Suing cmt Writ of Error, Making up Records, etc., in the Circuit Cmrt of Appeals for the Fourth Circuit, from Instructions Prepared by Mr. Henry T. Meloney, Clerk, Published by Permission. METHOD OF TAKING APPEALS Writs of error and citations are no longer made returnable to the term day of the appellate court, but are made re- turnable not exceeding thirty days from the day of agning the citation, whether that day, which is the return day, fall in vacation or in term time; and the record must be filed in the clerk's office of this court before the return day, unless the time be enlarged as provided in Sec. 1 of Rule 16. In that case the order of enlargement must be filed with the clerk of this court. Rule 11 entitled "Assignment of Errors," requires the plauitiff in error, or appellant, to file with the court below, with his petition for the writ of error or appeal, an assigfl- ment of errors, etc. This practically abolishes the necessity of pursuing the old method of praying appeals in "open court"; and all appeals and writs of error should be prayed for by petition in writing addressed to the court below, or to the judge in vacation, who allows the writ or the appeal, by an order in writing, approves the appeal or supersedeas bond, and signs the citation. In cases brought up by writ of error, from the District Courts, the clerk of the District Court, or the clerk of this court, issues the writ of error, which writ fixes the return day of the writ to this coii't, and the citation should bear the same 845 846 ADDENDA return day. But in cases of appeal (in admiralty or in equity), the citation alone fixes the return day. All appeals, therefore, whether by writ of error or appeal, should hereafter be taken in the following man- ner: (1) Petition in writing for the appeal, or writ of error, addressed to the court below, or the judge thereof in vaca- tion. (2) The petition must be accompanied with an assignment of errors, and a prayer for reversal. (3) Appeal or writ of error bond, approval thereof, and the signing of the citation by the judge allowing the appeal or writ. (4) Order in writing of the judge allowing the writ of error or appeal. (5) Issuing the writ of error by the clerk of the District Court or of this court. (6) In case it is desired to have the writ of error issued by the clerk of this court, a certified copy of the petition and order allowing the writ, under the seal of the court, with a fee of $5 for issuing it, must be transmitted to the clerk of, this court, and the writ will be issued and forwarded to the clerk of the court below. All of the above papers and proceedings should be filed with the clerk of the lower court, and incorporated into and certified up in the record by him to this court, except the writ of error and the citation, the originals of which, aftei having been duly served, must be attached to and bound in* the record at their respective places. (For service of writ of error see Sec. 1007, R. S.) . . . In cases brought up by petitions to superintend and re- vise in bankruptcy see Rule 36 (Rules of 4th Circuit). MAKING UP RECORDS In makiijg up a transcript of the record, clerks are re- quested to make a distinct title or heading to each paper or proceeding copied into the record, with the date of filing the same, or the date of such proceeding, and to write upon APPEALS, WBITS OF EKROR, RECORDS 847 but one side of the paper in a clear, legible hand. And a complete index should be made and attached to the record at the beginning of it. In order to have uniformity, records should be com- menced with the style and the term of the court at which the judgment or decree is entered, after the follow- ing form: "The United States of America, District of , to-wit: At a District Court of the United States for the District of , begun and held at the Court-house in the city of , on the first Monday of , being the day of the same month, in the year of our Lord one thousand, nine hundred and . Present: The Honorable District Judge, of the District of '■ Among others were the following proceedings, to-wit: A. B. vs. CD. In Equity (or) In Admiralty (or) At Law Bill of Complaint (or) Libel (or) .Declaration (or Complaint) Filed, , 19— (date of filing)." (Copy same with all material endorsements, and any accompanying papers and exhibits, and so on with every paper or proceeding in the case.) , , , „ As to the general order of making up a record, the follow- ing examples are given: ADDENDA In Equity 1. Style of Court as Above. 2. Bill of Com- plaint, etc. 3. Process. 4. Marshal's Return. 5. Answer. 6. Replication. 7. Testimony and Ex- hibits for Com- plainant. 8. Testimony and Exhibits for De- fendant. 9. Testimony and Exhibits in Re- buttal (if any). lOi Opinion. 11. Decree. ,12. Petition for Ap- peal. 13. Assignment of Er- rors. 14. Appeal Bond and Approval. 15. Order Allowing Appeal. 16. Citation. 17. Clerk's Certifi- cate. In Admiralty 1. Style of Court as Above. 2. Libel. 3. Process. 4. Marshal's Return. 5. Claim. 6. Stipulation. 7. Answer. 8. Testimony and Exhibits for Li- beUants. 9. Testimony and Exhibits for Re- spondent. 10. Testimony and Exhibits in Re- buttal (if any). 11. Opinion. 12. Decree. 13. Petition for Ap- 14. Assignment of Er- rors. 15. Appeal Bond and Approval. 16. O r d e r Allowing Appeal. 17. Citation. 18. Clerk's Certifi- cate. At Law 1. Style of Court as Above. 2. Declaration. 3. Process. 4. Marshal's Return. 5. Plea or Demurrer, etc. 6. Joining of Issue. 7. Impaneling Jury. 8. Verdict. 9. Judgment. 10. Bill of Exceptions. 11. Petition for Writ of Error. 12. Assignment of Er- rors. 13. B o n d and Ap- proval. 14. O r d e r Allowing Writ. 15. Writ of Error. 16. Citation. 17. Clerk's Certificate. In making up records in admiralty cases the following should be omitted (see Admiralty Rule 52) : 1. The continuances. 2. All motions, rules, and orders not excepted to which are merely preparatory for trial. 3. The commissions to take depositions, notices therefor, their captions, and certificates of their being sworn to, unless some exception to a deposition in the District Court was founded on some one or more of these; in" which case, so much of either of them as may be involved in the exception shall be set out. In all other cases it shall be sufficient to give the name of the witness and to copy the interrogatories APPEALS, WRITS OF ERROR, RECORDS 849 and answers, and to state the name of the commissioner, and the place where and the date when the deposition was sworn to; and, in copying all depositions taken on inter- rogatories, the answer shall be inserted immediately fol- lowing the question. Form of Memorandum to be Inserted in a Common Law Case as Provided by Sec. 7 of Rule 14 (1) Petition for writ of error filed day of , 19-. (2) Writ of error granted day of , 19 — . (3) Writ of error issued day of , 19 — . (4) Copy of writ of error lodged for adverse party day of ,19—. (5) Appeal Bond: Dated day of , 19- Penalty $ . Obligors: Conditioned for costs and damages (or for costs). (6) Citation. Dated day of , 19 — . Return, dated day of , 19 — . (Or waiver of service, dated — — ■ — — day of , 19 .) Note: Similar memorandum mviaiis mutandis to be used in ad- miralty and equity cases. The petition for writ of error or appeal, the order granting writ of error or appeal, the writ of error, the appeal bond, the citation, the re- turn of service or waiver of service should not be copied into the record, but the originals thereof should be sent up and accompany the transcript of the record. In transcribing bills of exceptions into the record in cases at law, clerks will carefuUy inspect such bills of exceptions and wherever the words "here insert" occur, the paper or matter called for should be bodily incorporated into the record at that place. 54 850 ADDENDA Form for the Cover of a Transcript of the Record Tbansckipt of the Record United States Circuit Court of Appeals Fourth Circuit No. . — , Plaintiff in Error or Appellant, or Petitioner, versus -, Defendant in Error, or Appellee, or Respondent. In error (or appeal from, or on petition for review from) the District Court of the United States for the District of at Note : AU records are transmitted to the appellate court by order of the court below ; and if such order is not expressed in writing, it is implied, and the clerk should always enter immediately preceding his certificate the following order: "And, thereupon, it is ordered by the court here that a transcript of the record and proceedings in the cause aforesaid, together with all things thereunto relating, be transmitted to the said United States Circuit Court of Appeals for the Fourth Circuit; and the same is trans- mitted accordingly. "Teste. , Clerk." Then comes the general certificate of the clerk, in the usual form, that the foregoing is a full and true record, etc., with the seal of the court attached. INDEX TO THE PRESENT RULES OF THE SUPREME COURT BY NUMBERS AND TITLES ^""^ Page 1. Clerk ^ 2. Attorneys and counsellors gg 3. Practice go 4. Bill of exceptions ; g4 5. Process gg 6. Motions §4 7. Law library g j 8. Writ of error, return, and record g2 9. Docketing cases 1X2 10. Printing records Hg 11. Translations 123 12. Further proof 123 13. Objections to evidence in the record 126 14. Certiorari 127 15. Death of a party 131 16. No appearance of plaintiff 135 17. No appearance of defendant 137 18. No appearance of either party 137 19. Neither party ready at second term 138 20. Printed arguments ^ 138 21. Briefs 140 22. Oral arguments 146 23. Interest 147 24. Costs 151 25. Opinions of the court 156 26. Call and order of the docket 157 27. Adjournment 160 28. Dismissing cases in vacation 161 29. Supersedeas 162 30. Rehearing 171 31. Form of printed records and briefs 173 32 Writ of error and appeals in cases involving jurisdiction of lower court 173 853 §54 INDEX Bule Page 33. Models, diagrams, and exhibits of materials 178 34. Custody of prisoners on habeas corpus 179 35. Assignment of errors 182 36. Appeals and writs of error from District Courts 184 37. From Circuit Courts of Appeals 188 38. Interest, costs, and fees under Sees. 238 to 241, Judicial Code 194 39. Mandates 194 40. Practice in cases from Circuit Courts of Appeals . . . , ... 200 INDEX TO THE PRESENT RULES OF THE SUPREME COURT BY SUBJECTS ABATEMENT- R„,e clause Page Death of party does not cause in Supreme Court.... 15 1 131 Representative made party, when 15 i 131 Of appeal for want of appearance 15 2 131 When party dead, how appeal taken 15 3 132 ADJOURNMENT— Announced ten days prior to 27 160 ADMIRALTY— Record in 8 6 94 When further proof taken on appeal in 12 2 123 Objections to evidence in, not allowed 13 126 ADVANCEMENT OF CAUSES— For argument , 26 4-5 157 AFFIDAVIT— Must accompany motion for certiorari 14 127 Must accompany suggestion of death of party for appeal 15 3 132 AFFIRMANCE— Costs allowed to appellee, etc 24 1 151 Interest, how computed on 23 1 147 Damages, when given on 23 2 147 ALASKA— Docket of cases from 8 5 93 APPEAI^ Interest and damages on 23 2 147 Supersedeas bond required in 29 162 In cases involving jurisdiction of lower court. . 32 173 855 Clauss Page 184 6 85 5 93 1 184 2 184 5 93 1 131 2 131 135 137 137 856 INDEX APPEAL — cmiinued. Rule Under Sees. 238 and 252, Judicial Code 36 Motions to dismiss • 6 Citations on 8 Direct from District Court, when and by whom allowed 36 Bail to be allowed, when 36 APPEARANCE— Of counsel for appellant, etc., entered 9 3 113 When time for extended in writs of error and appeal from certain States and Territories . . 8 Of representative in case of death of party. ... 15 , When action abates for want of 15 Cause dismissed on failure of, by plaintiff 16 Failure to make, by defendant, effect of 17 Effect when neither party makes an 18 APPELLEE— Right of to docket cause, etc 9 2 113 ARGUMENT— When cause stands for ... , 9 1 112 Case dismissed, when parties not prepared after two calls 19 Court will receive printed, when 20 Effect of fiUng printed 20 When oral argument presented 20 How printed brief, affected by oral argument 20 Brief not received after oral argument 20 Appeals from Court of Claims submitted on . . . 20 Two counsel only will be heard 22 Restriction of length of, on oral 22 What brief must contain 21 To be filed by appellee or defendant in error . . 21 Counsel not heard on errors not assigned 21 Default in filing printed, effect of 21 When no oral argument made by one party. . 21 No printed filed without proof of service 21 Briefs to be indexed 21 Order of, opening and close 22 Cross-appeals must be argued together 22 When separate causes heard together 26 When cause will not be taken jip f or 27 On motions 6 Submission on printed 20 No cause taken up within three days of ad- journment 27 160 138 1 138 2 138 3 139 3 139 4 139 1 138 2 146 3 146 2 140 3 141 4 141 5 141 6 142 7 142 8 142 1 146 1 146 8 158 160 2 84 1 136 PEESENT RULES CHF THE SUPREME COURT 857 AEIZONA— Rule Clause Page Docket of cases appealed from 8 5 93 ASSIGNMENT OF ERRORS— Under Act of Max. 3, 1911 36 1 182 Briefs to contain 20 2-4: 138 ATTACHMENT— For ol^ks' fees 10 8 119 ATTORNEYS AND COUNSEL— Admission of, to practice 2 1 59 Form of oath to be taken 2 2 60 Appearance of, entered of record 9 3 113 Printed argimients signed by 20 1 138 Copy of printed argument furnished to 21 1 140 Two only to be heard on argument 22 2 146 Time allowed for argument . . . . ■ 22 3 146 Time allowed for motions 6 2 84 ATTORNEY-GENERAL— When he may have causes adyanced 26 5 157 BAIL— When and how granted 1 36 2 184 BILL OF EXCEPTIONS— Allowance of by district judges 4 64 BOND— Supersedeas . 29 162 BRIEFS— Time for filing by plaintiff in error or appellant. . 21 Time for filing by defendant in error or appellee . 2 1 Service on opposing counsel required 21 Index to, when required, etc 21 For respondent on certiorari, when to be filed . 37 Not received after argument 20 When to be filed with derk 21 What to contain 21 Specification of error, what to set out 21 Form of printed *^ CALIFORNIA— , . r Extension of time in appeals and writs of error c 8 5 y^ from 1 140 3 141 7 192 8 142 3 188 4 139 1 140 2 140 2 140 173 Clause Page 8 158 9 158 161 1 188 127 127 127 127 188 188 200 858 INDEX CASES— Rule Involving same question may be heard to- gether 26 Passed, how restored to call 26 Dismissal of, in vacation 28 From Circuit Court of Appeals 37 CERTIORARI— When awarded for diminution of record 14 When motions for to be made 14 Facts on which motion based, verified by affi- davit 14 When not granted 14 From Circuit Court of Appeals 37 CIRCUIT COURTS OF APPEALS— Cases from, etc 37 Practice in cases from 40 CITATION— Service of 8 5 93 CLERK OF SUPREME COURT— Where to reside and keep his office 1 Table of fees 24 Deposit for fees 10 Shall not permit any original paper taken from office 1 To have charge of hbrary, etc 7 Fee of, for printing records 10 Shall furnish copies of records to printer 10 Fees to be charged under Rule 24 10 Against whom to charge fees in case of dis- missal 10 To issue mandate to court below 24 Deliver copy of opinion to reporter 25 To cause opinions of judges to be recorded .... 25 Must preserve original opinions 25 COMMISSIONS TO TAKE TESTIMONY— What court to issue 12 2 123 CONFERENCE-ROOM— Marshal of court has charge of 7 3 91 CONTINUANCE— Of causes on appeal 26 1 157 1 59 7 152 1 118 2 59 2 91 2 118 4 118 9 119 7 119 5 151 1 156 3 156 2 156 Clause Page 1 118 2 118 7 119 8 119 137 138 1 151 2 151 3 151 6 151 4 151 162 PRESENT RULES OF THE SUPREME COURT 859 COSTS — Rule Clerk must take security for 10 Of printing records 10 Charged in case of dismissal 10 When attachment for may issue 10 On dismissal for want of appearance 18 Default at second term 19 Generally 24 On aflarmance, allowance of 24 On reversal, allowance of 24 Allowed in Supreme Court, inserted in man- date 24 United States exempt from liability for 24 Provisions for, included in supersedeas bond. . . 29 counsel- No appearance of 18 137 COUNSELLORS — See Attorneys and Cootisbl. CRIMINAL cases- How and when advanced on docket 26 3 157 CROSS-APPEALS— Must be argued together 22 1 146 CUSTODY— Of prisoners on habeas corpus 34 1-2 179 DAMAGES— Allowed on frivolous appeals 23 2 147 DEATH— Of party does not abate suit 15 1 131 When on death of party action will abate 15 2 131 Of defendant in error or appellee after judg- ment in lower court 15 3 132 DEEDS, etc.— In record objections to be taken in court below . 13 i-io DEFAULT— If defendant make, plaintiff may proceed ex 1 ... 5 3 oo parte ;• .,„_ Dismissal of writ of error if plaintiff makes. ... lb j^o When defendant makes, plaintiff may proceed . . 17 lrf7 Dismissal for non-appearance of both parties... 18 ^61 In filing brief and assignment of errors, effect of 21 5 141 After argument, how opened 860 INDEX DEFENDANT — Rule Clause Page No appearance of 17 137 DEPOSIT— For clerk's feea 10 1 118 DEPOSITIONS— To be taken on commission 12 1 123 Notice, with copy of interrogatories served ... . 12 2 123 What court to issue, commission to take 12 2 123 Time of filing croas-inteirQgatorieB 12 2 123 DIMINUTION OF RECORD— Application for certiorari on 14 127 DISMISSAL— For want of jurisdiction 6 5 85 Of appeal for failure to docket cause 9 1 112 Who taxed with fee for copy in case of 10 7 119 When writ of error dismissed for non-appear- ance of plaintiff 16 135 For non-appearance of both parties at second term 18 137 Costs allowed on to defendant or appellee 24 1 151 In vacation by agreement of parties 28 161 DISTRICT COURT— May order taking of testimony on commission. 12 123 DISTRICT JUDGE— Allowance of bill of exceptions toy 4 64 DOCKET— Called on second day of term 26 1 157 Ten cases on for each day's hearing 26 2 157 Cases lieard in advance of order 26 4 157 Order of cases on 26 1 157 When causes on heard together 26 8 158 Criminal cases may be advanced on 26 3 157 When other causes may be advanced on 26 5 157 Continuance of causes until next term 26 1 157 When causes reinstated on 26 9 158 When may be passed on appUcation of parties . . 26 10 158 Motions to advance causes on must be printed. 26 6 158 DOCKETING CASES— By plaintiff in error or appellant 9 1 112 By defendant in error or appellee 9 2 113 PRESENt JlULES OF THE SUPREME c6TJRT S61 ERRORS-^ Rule Clause Page Assignment of, as required by Sec. fl97, Rev. Stat 21 4 141 Specification of errors relied on in briefs 21 2 140 EVIDENCE— When and how taken on order for further proof . 12 1 123 In maritime cases, how new evidence taken ... 12 2 123 When deemed admitted without objection. .. . 13 126 Objections to deed, etc., not allowed 13 126 Admission or rejection, error on 21 2 141 EX PARTE ARGUMENT— When court will decide cause on 20 3 139 EXCEPTIONS— Bill of 4 64 EXHIBITS— In record, objections to must be taken below ... 13 126 FEES— Of clerk, security taken 10 1 118 Clerk must charge the legalfor record 10 6 119 Bond for, on appeal or writ of error 10 1 118 Attachment for, when to issue 10 8 119 Taxed on dismissal 10 7 119 Table of clerk's 24 7 152 FRIVOLOUS APPEAL— Damages allowed on 23 2 147 FURTHER PROOF— When and how taken ,■ 12 1 1^ HABEAS CORPUS— Custody of prisoners on 34 179 HAWAII— Return day on cases from ° ° ^^ IDAHO— ^ c K QQ Return day on cases appealed from, when » o »*5 INTEREST- On aflBrming judgment, how computed ^6 i i*' Same rule on affirming decree in equity 23 3 148 T J • li. 23 4 148 Inadmaralty ^3 1 147 At law . n^ Under Sees. 238 to 241, Judicial Code 38 la* 86^ INDEX JURISDICTION— Rule Clause Page Cases involving lower court's 32 173 LAW LIBRARY— Use of books, regulation of 7 1 91 Marshal of court has charge of 7 3 91 Duty of clerk in respect of 7 1 91 Marshal has charge of conference-room 7 3 91 Printed record of cases filed in by clerk 7 2 91 LIST OF CASES— Cited in briefs, when required 21 8 142 MANDATE— On dismissal of suit, clerk to issue 24 5 151 Costs to be inserted in 24 6 151 On dismissal of cause in vacation, none, unless 28 161 Of course 30 days after judgment or decree ... 39 194 MARITIME CASES— Further proof in, how taken 12 2 123 MASTER'S REPORT— Specifications of error to ruling on in briefs. . . 21 2 140 MODELS— Diagrams, etc , 33 178 MONTANA— Return day in cases from 8 5 93 MOTION-DAY 6 7 86 MOTIONS— Must be in writing 6 1 84 Argument on, time of 6 2 84 Notice of must be given 6 3-4 84 Service of notice by mail, how proved 6 4 85 Motion to aflBrm 6 5 85 Day for hearing on 6 7 86 For certiorari supported by affidavit 14 127 When motion to be made 14 127 Submission of 6 4 85 To dismiss 6 4 85 To advance, what to contain 26 6 158 Must be printed 26 6 158 Cases once adjudicated 26 4 157 Criminal cases 26 3 157 PKESENT RULES OF THE SUPREME COURT 863 MOTIOm-conHnued. r„„ Clause Page Revenue cases 26 5 157 Cases involving jurisdiction of lower oo'irt 32 173 When cause put on summary docket 6 6 85 Not put on docket entitled to preference. 6 7 86 NEVADA— Return day in cases on appeal from 8 5 93 NEW MEXICO— Return day in cases on appeal from 8 5 93 NOTICE— Of motion must be given 6 3-4 84 Mode of service of 6 4 85 Of taking depositions in maritime cases 12 2 124 Filing brief after argument, when requisite .... 20 4 139 OATH— Of attorney or counsel 2 2 60 OBJECTIONS TO DEEDS— Exhibits, etc., in the record 13 i26 OPINIONS— Of court, recorded by clerk, when 25 1 156 Duty of clerk respecting 25 3 156 Preservation of 25 2 156 Court below to be amended to record 8 2 93 ORAL ARGUMENT— Order of 22 1 146 Time allowed for 22 3 146 Two coimsel only heard 22 2 146 ORAL TESTIMONY— May be given when by law admissible 12 2 124 OREGON— Return day in causes on appeal from 8 6 93 ORIGINAL PAPERS— Not to be taken from court room or clerk's office 1 2 59 From court below 8 4 93 papers- How sent up on appeal 8 1 93 Translation of, when in foreign language 11 123 864 INDEX PARTIES— RuIb Clause Page Death of 15 1 131 PHILIPPINE ISLANDS— Return day in caaes from. 8 5 93 plaintiff- No appearance of 16 135 PORTO RICO— Return day in cases from 8 ■ 5 93 POSTPONEMENT— . jg^ To next term, after being called, when 26 1-7 -j ,'irQ PRACTICE— In Supreme Court, by what regulated 3 63 On death of party pending appeal or writ of error 16 131 PRINTING— The record . . . ; 10 118 Motions to advance 26 6 158 PROCESS— S8 In whose name to be 5 1 How served on a State 5 2 83 Subpoena, service on individual 5 3 83 RECORD— Printing parts of l 10 9 119 Return of 8 1 92 Designated record from court below 8 1 92 When opinion of court below annexed to 8 2 93 To contaia all necessary papers in full 8 3 93 What to be in admiralty cases 8 6 94 Printed for use of court 10 5 118 Printed under supervision of clerk 10 3 118 Distribution of printed copies 10 5 118 Fees for printing to be charged 10 2 118 Who entitled to copy of 10 3 118 When translations inserted in 11 123 Cost of 10 2 118 Diminution of, certiorari upon 14 127 Under Sec. 240, Judicial Code 37 3 I88 How printed 35 2 182 When to be filed 9 x 173 Time for filing may be enlarged 9 1 112 PBESENT RULES OF THE SUPREME COURT 865 •ule Clause Page 30 171 REHEARING ^"'^ *^'*"°' ^'«" REPORT OF MASTER— Error in ruling on, what to be set out in brief.. 21 2 140 REPORTER— To receive copy of opinion of court 25 1 156 REPRESENTATIVES OP DECEASED PARTIES— Appearing 15 ^ ^g^ Not appearing 2g o i qi RETURN— Of writ of error, when to be made 8 6 93 How to be made g j 92 Of original papers in Supreme Court, when 8 4 93 What to accompany record 8 2-3 93 Complete record to be made 8 3 93 RETURN-DAY— Of appeals, writs of error, and citations 8 S 93 REVENUE CASES— Advanced on motion 26 5 167 REVERSAL— Costs of judgment on 24 3 151 REVIVOR— How on death of party 15 SECOND TERM— Neither party ready for trial 19 SECURITY— For clerk's fees must be taken by clerk 10 On appeal and writ of error in District Courts and Circuit Courts of Appeals 29 SERVICE— Of notice of motion and copy of brief, mode of . 6 Process, how served on a State 6 Subpoena, time of 5 STATE— How process served on 5 STIPULATION— When not binding on the court 26 55 1 131 138 1 118 162 4 85 2 83 3 83 2 83 10 158 866 INDEX SUBMISSION OF CAUSE— Rule Clause Page On printed argument > 20 1 138 SUBPOENA— Must be served sixty days before return-day . . 5 3 83 SUPERSEDEAS— When in case of death of party 15 3 132 Bonds taken in District Court, and Circuit Courts of Appeals 29 162 SUPREME COURT CLERK— See Clehk. TRANSCRIPT— To be filed before return day 9 1 112 TRANSLATIONS— Of documents. in foreign language, supplied ... 11 123 UNITED STATES— Exempt from liabiUty for costs 24 4 151 UTAH— Return day in causes on appeal from 8 5 93 VACATION— Causes dismissed in by agreement 28 161 VERIFICATION— Of application for certiorari 14 127 WASHINGTON— Return day in causes on appeal from 8 6 93 WRIT OP ERROR— Return of, how made, by whom 8 Opinions of court below returned with record . . 8 Will not be heard without complete record .... 8 When original papers sent up, on 8 To be made returnable when 8 In cases involving jurisdiction of District Courts 32 Under Sections 238 and 252, Judicial Code ... 36 1 92 2 93 3 93 4 93 5 93 173 184 IIODEX TO THE RULES OF UNITED STATES CIRCUIT COURTS OF APPEALS BY NUMBERS AND TITLES Rule 1. Name 211 2- Seal..... ;;;:"::::::::::::::::::::::::::: 211 3. Terms and sessions 212 4. Quorum oift 5. Clerk 017 6. Marshal and other officers 219 7. Attorneys and counsellors 220 8. Practice 222 9. Process 225 10. BiU of exceptions 225 11. Assignment of errors .• 239 12. Objections to evidence in the record 251 13. Supersedeas and costs bond 251 14. Writs of error, appeals, return, and record 254 15. Translations (is Rule 16 in Third Circuit, p. 272) 272 16. Docketing and dismissing cases 272 17. Docket and calendars 278 18. Certiorari 281 19. Death of a party 282 20. Dismissing cases by agreement 285 21. Motions 286 22. Call and order of the calendar 288 23. Printing records (is Rule 19 in Sixth Circuit, p. 282) 291 24. Briefs (is Rule 20 in Sixth Circuit, p. 285) 308 25. Oral arguments 317 26. Form of printed records, arguments, and briefs 319 27. Copies of records and briefs 323 28. Opinions of the court (is Rule 30 in Seventh Circuit, p. 329) 323 29. Rehearing (is Rule 27 in Seventh Circuit, p. 323, and is Rule 28 in the Sixth Circuit) 325 30. Interest (is Rule 28 in Third and Seventh Circuits, p. 323) ... 329 867 868 INDEX Bule 31. Costs : 331 Table of fees and costs 333 32. Mandate (is Rule 30 in Seventh Circuit, p. 331) 337 33. Custody of prisoners on habeas corpus (is Rule 31 in Third and Seventh Circuit and is Rule 32 in Sixth Circuit) 340 34. Models, diagrams, and exhibits of material (is Rule 32 in Third and Seventh Circuits and Rule 30 in Sixth Circuit) . . . 341 35. Error in criminal cases 342 36. Petitions in bankruptcy cases (is Rule 38 in First Circuit) 345 37. In Eighth Circuit, review in bankruptcy, rehearing 351 In Second Circuit, Citations from "Federal Cases" 350 In Fifth Circuit, Writs of Error in Criminal Cases 350 38. In Second Circuit, when petition to review orders in bank- ruptcy filed 352 In Eighth Circuit, notice on petition to review 352 39. In Eighth Circuit, response to petition to review 352 40. In Eighth Circuit, printing of record 353 41. Briefs and arguments 353 42. Hearing 353 43. In Eighth Circuit, costs on petition -to revise 353 44. In Eighth Circuit, procedendo on petition to revise 354 45. In Eighth Circuit, appeals and writs of error in bankruptcy cases 354 mDEX TO THE RULES OF THE CIRCUIT COURT OF APPEALS BY SUBJECTS Rule Clause Page ADJOURNMENTS 4 i 2I6 ADMIRALTY— Record in 14 6 255 Further proof in 14 7-8 255 Objections to further proof in 14 9 256 Applications to take further proof in 14 10 256 AGREEMENTS OF COUNSEL— To pass a case 22 11 289 APPEALS— Return and record 14 1 254 APPEARANCE— Of counsel docketing case 16 3 273 For plaintiff in error or appellant, no 22 2 288 For defendant in error or appellee, no 22 3 288 For either party, no 22 4 288 ARGUMENT— Oral 25 1 317 Order of 25 1 317 Nvunber of counsel heard in 25 2 317 Time allowed for, and how apportioned 25 3 317 On motions 21 6 287 , No appearance by defendant, counsel for plain- tiff heard 22 3 288 ASSIGNMENT OF ERRORS— In cawi below H 239 No, counsel not heard except, etc 24 4 309 869 870 INDEX ASSIGNMENT— Rule Clause Page Of cases (Fifth Circuit) 35 343 (Ninth Circuit) 35 345 Of judges (Fifth Circuit) 36 345 ATTORNEYS— Admission of, etc 7 220 BAIL— When and how taken 35 342 BANKRUPTCY CASES— On petitions for revision, etc 36 345 Order to show cause in 36 1 345 Pleadings in 36 2 346 No pleadings in reply by petitioner in 36 3 346 Motions to dismiss in 36 4 346 Briefs on 36 4 346 How disposed of 36 4 346 Proofs in District Court in 36 5 347 Further proofs in 36 5 347 Rules as to record, printing and briefs in 36 6 347 Orders to expedite 36 7 347 BILL OF exceptions- How allowed and contents of 10 225 BRIEFS 24 308 Time for filing 24 1 308 Contents of, for plaintiff in error or appellant ... 24 2 308 ■ For defendant in error or appellee 24 3 309 Failure to file 24 5 310 Citations from "Federal Cases" (Second" Circuit) 37 350 CALENDAR— Call and order of 22 288 CASES— Called for argument, when 22 1 288 Dismissed by agreement 20 285 Involving same question may be argued to- gether 22 10 289 Revenue, and cases once adjudicated, may be advanced 22 9 289 Docketing and dismissing 16 272 CERTIORARI— Motion for in writing , 18 281 RULES OF THE CIRCUIT COURT OF APPEALS 871 CITATIONS- R„„ Clause Page When returnable 14 5 255 CLERK— Office of 5 1 217 Shall not practice 5 2 217 Bond of 5 . 3 217 Original records not to be taken from office of . . 5 4 218 To enter causes and prepare calendar 17 278 To preserve copies of record 27 323 Library in charge of (Seventh Circuit) 33 340 COST— Of printing records 23 2 291 COSTS— In what cases and how taxed 31 331 No, in cases where United States is a party ... 31 5 332 To be inserted in mandate 31 6 332 In cases taken to Supreme Court 31 7 332 COUNSEL^ Two only heard for each party 25 2 317 Time allowed for argument of 25 3 317 On motions 21 6 287 COURT— Name of 1 211 Terms of 3 212 CRIMINAL CASES 35 342 CUSTODY— Of prisoners on habeas corpus 33 340 DAMAGES— For delay in addition to interest 30 2-3 330 And interest in admiralty cases 30 4 330 DEATH- Ofaparty -^ J g After judgment m lower court 19 o mh DIMINUTION- Of the record ^^ ^'*^ DISMISSING— 285 Cases by agreement 872 INDEX DISMISSAL— Rule Clause Page For failure to file brief or assign error 24 5 310 DOCKETING— Cases 16 272 By plaintiff in error or appellant 16 1 272 By defendant in error or appellee 16 2 272 DOCKET AND CALENDARS 17 278 ERRORS— Assignment of 11 239 Specification of, in brief 24 2 308 EVIDENCE— In admiralty cases, new, how taken 14 7-8 255 On petitions for revision in bankruptcy cases, new, how taken 36 5 347 Objections to 12 251 EXCEPTIONS— Bill of 10 225 EXHIBITS— Of material, models, etc ( 34 341 FEES— Table of clerk's 31 333 HABEAS CORPUS— Custody of prisoners on 33 340 HEARING— Assignment of causes for (Fifth Circuit) 35 " " " (Ninth " ) 35 INTEREST 30 In admiralty 30 At law 30 In equity 30 JUDGES— Assignment of (Fifth Circuit) 36 MANDATE 32 MODELS, EXHIBITS, etc 34 343 345 329 4 330 1 329 3 330 348 337 341 Clause Page 286 2-3 286 4 286 5 287 6 287 3 286 3 286 EULES OF THE CIRCUIT COURT OF APPEALS 873 Rule MOTIONS 21 To be in writing and printed 21 Notice of 21 Entered on clerk's list 21 Time allowed for argument of 21 To dismiss, and other special 21 To be accompanied by printed briefs 21 MOTION-DAY 21 1 286 OBJECTIONS— To evidence in the record 12 251 OPINIONS— Of the Court of Appeals 28 323 Of the court below to be annexed to record ... 14 2 255 ORDERS— Judge may make in absence of a quorum 4 216 ORIGINAL PAPERS— Remain in clerk's office 5 4 218 In court below, transmitted to Court of Ap- peals, how 14 4 255 PARTIES— Not ready 22 6 289 Death of 19 282 PRACTICE— Same ae in Supreme Court 8 222 PRISONERS— Custody of 33 340 PROCESS- Form of ^ ^'•^ QUORUM— Absence of * In absence of, judge may make orders 4 RECORD— Of court below, how transmitted ■■ ■ ■ i* To have opinion of court below annexed 14 To contain all necessary papers 14 Cost of printing, to be estimated 23- How printed 1 216 2 216 1 254 2 255 3 255 2 291 4 292 874 INDEX RECORD — coniinued. Rule Clause Page In admiralty cases, how made up 14 6 255 Form and size of 26 319 Enlargement of time for filing 16 272 Diminution of 18 281 REHEARING 29 325 REPRESENTATIVES— Of deceased party appearing 19 1 282 Not appearing. . ; 19 2 282 RESPONSE— . . To petition for review (Eighth Circuit) 39 352 return- To writ of error 14 1 254 RETURN-DAY— of appeals, writs of error, and citations 14 5 265 REVENUE CASES— May be advanced 22 9 289 REVIEW— Under Bankruptcy Act 36 345 Of orders in Bankruptcy 37-38-45 350-4 SATURDAY- NO case heard on (Fourth Circuit) 35 343 SECOND SESSION— Neither party prepared to argue, case dis- posed of, how 22 6 289 SUPERSEDEAS AND COST BONDS 13 251 TERMS— When and where held 3 212 (Ninth Circuit) 36 349 TRANSLATIONS 15 272 WRITS OF ERROR— Return of 14 1 254 On criminal oases 35 342 INDEX TO THE RULES m ADMIRALTY IN THE THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT Rule Page Appearance, failure of appellee to appear 6 357 Appeal, how taken 1 355 Appeal, notice of, how served 2 355 Apostles, what to contain, on appeal 4 355 Bond, on appeal 2 355 Briefs, contents, when to be filed 15 359 Certifying the record 5 357 Docket, when causes placed on 14 359 Execution, stay of, by bond 2 355 Exception to sureties on bonds 2 356 Failure of appellee to appear 6 357 Inhibition, writ of 12 358 Justification of sureties on bonds 2 355 Mandamus to compel return of apostles 13 359 Mandates 16 360 Motions, notice on 11 358 New allegations, on appeal 7 357 New pleadings, on appeal 8 358 New testimony, on appeal 9 358 Notice of appeal, what to be given 1 355 Notice of fiUng bond on appeal 2 355 Notice may state review in part only, sought 3 356 Printing new testimony ' 10 358 Review may be hmited to part of a decree 3 356 Records, certifying 5 357 Relief, different on appeal 7 357 875 876 INDEX Rule Page Rules, when rules of District Court to apply 18 360 Rules, what deemed admiralty 19 360 Stay of execution on appeal 2 356 Testimony, new, on appeal, how taken 9 358 Testimony, new, how printed 10 358 Time, extension of 17 360 INDEX TO RULES OP THE COURT OF CUSTOMS APPEALS Rule Page Amendments 11 367 Appeals 10 366 applications for 10 366 Appearances, notice of 15 368 Assignment of errors 5 354 Attorneys. . 2 363 Briefs and records 8 366 Calendar 7 365 Clerk 1 363 Costs 13 367 Counsel 2 363 Decisions 12 367 Errors, assignment of 5 364 Fees 13 367 Hearing 14 367 Judgments 11 367 Mandates 6, 12 365, 367 Oath of attorney 2 363 Oral arguments 14 367 Process 3 364 Records and briefs 8 366 Rehearings, applications for 16 368 Reply briefs 8 366 Review 4 364 Service 5,8 364,366 Sessions 9 366 Statement of errors 5 364 Statement of facts 5,6 364,365 Time 4,8 364,366 Writs, attestation of 3 364 877 INDEX TO THE RULES IN EQUITY Adopted A. D. 1822 BY NUMBER AND SUBJECT Rule Page 1. Rule Day 369 2. Process 369 3. Death of Party 370 4. Filing bill 370 5. Amending bill 370 6. Appearance day 370 7. Service of decree 371 8. Service of process 371 9. How to swear to answer 371 10. Time to file answer 371 11. Replication 371 12. Crossbill 372 13. General replication and exceptions 372 14. Filing exceptions 372 15. Costs on insufficiency of answer 372 16. Second answer, costs on — ^replication, etc, 373 17. Practice — general rulings 373 18. Bill, pleading thereto 373 19. Plaintiff may set down demurrer or plea for argument 373 20. Overruling plea or demurrer 373 21. Failure of plaintiff to reply 374 22. Costs on plea or demurrer 374 23. Special matter 374 24. When commission to issue 374 25; Time for commission to issue 374 26. How testimony taken on commission 375 27. Guardian ad litem 375 28. Witnesses .'. '. 375 29. Hearings before a master 376 30. Powers of the court 376 31. Re-hearings 376 32. Further rules 376 33. Practice 377 878 DsTDEX TO THE RULES IN EQUITY In Force prom March 2, 1842, to November 4, 1912 BY NUMBERS AND TITLES ^"'' Page 1. Court always open ; 37g 2. Clerk's office 370 3. Orders, rules, etc 379 4. Motions, rules, etc., entered in order book 380 5. Motions for process, etc., grantable by clerk 380 6. Motions and orders not grantable as of course 381 7. Compulsory process 381 8. Final process 38i 9. Writ of assistance 382 10. Persons not parties, how affected 382 11. Subpcena ; 352 12. Subpoena, when returnable 383 13. Service of subpoena 383 14. Alias subpoena 383 15. Who to make service 383 16. Suit entered on docket 384 17. Appearance, day of and how entered 384 18. Default for failure to plead 384 19. Decree on default 385 20. Introductory part of bills 385 21. What bill may omit-and what to state 386 22. Parties out of jurisdiction 386 23. Prayer for process 386 24. Signature of counsel to bill 387 25. Limitation of taxable costs 387 26. Surplusage 387 27. Exceptions for scandal and impertinence 388 28. Amendments; what as of course 388 29. Amendments by order of court 389 30. When order deemed abandoned 389 31. Certificate required to demurrer or plea 389 879 880 INDEX Rule Page 32. May demur to part, plead to part and answer part 390 33. Argument on plea 390 34. Costs on demurrer overruled 390 35. Costs on demurrer allowed 391 36. Demurrer, sufficiency of 391 37. Demurrer to part of matter answered or met by plea 391 38. Failure to reply or set down plea or demurrer 391 39. Sufficiency of answer 391 40. When defendant not bound to answer charge of bill 392 41. Interrogatories to be numbered; when oath waived answer not evidence 393 42. Shall specify the interrogatories each defendant required to answer 393 43. Form of bill preceding the interrogating part 394 44. What interrogatories need not be answered 394 45. No special replication 394 46. New or supplemental answer 395 47. When parties not deemed necessary parties 395 48. When parties numerous 395 49. Trustees, etc., as parties 395 50. When heir at law not a necessary party 396 51. Joint and several debtors 396 52. When answer suggests defect of parties complainant 396 53. Defect of parties suggested at the hearing 397 54. Nominal parties 397 55. Injunctions 397 56. Revivor 398 57. Supplemental bill 398 58. What may be omitted in bill of revivor and supplemental bill 399 59. Before whom answer verified 399 60. Answer, when amendable 399 61. When exceptions to be filed 399 62. Costs on separate answers 400 63. Exceptions for insufficiency, when to be set down for hearing . . 400 64. Answer after exceptions allowed 400 65. Costs on exceptions overruled 401 66. When replication to be filed 401 67. Commissions to take testimony , 401 68. Testimony by deposition 404 69. Time allowed for the taking of testimony after cause at issue . . 404 70. Testimony de bene esse 405 71. Form of last interrogatory 405 72. Complainant on cross-bill to first answer original bill 405 73. Account of personal estate 406 74. Reference; duty of master 406 75. Master to assign time and give notice 406 FOKMEK RULES IN EQUITY 881 Rule Page 76. Master's report 407 77. Proceedings before the master 407 78. Witnesses, how summoned 407 79. Production of accounts and examination of accounting party . . 408 80. Affidavits, etc., used in court, may be used before the master. . 408 81. Examination of creditor or claimant 408 82. Appointment of masters 409 83. Master to file report; within that time exceptions may be filed 409 84. Costs on exceptions 410 85. Clerical mistakes in decrees, etc., corrected without rehearing . 410 86. Decrees not to contain pleadings 410 87. Guardians, how appointed 410 88. Rehearings 411 89. Circuit Courts may make rules 411 90. Practice when rules do not apply 411 91. Affirmation in Ueu of oath 411 92. Balance over in foreclosure suits 412 93. Appeal in injunction cases 412 94. Bill by stockholder against corporation i 412 5& TO THE PRESENT RULES IN EQUITY BY NUMBERS AND TITLES Rule Page District Court always open for certain purposes — Orders at Chambers 1 433 Clerk's Office always open, except, etc 2 434 Books kept by Clerk and entries therein 3 434 Notice of Orders 4 434 Motions grantable of course by Clerk S 435 Motion Day 6 436 Process, Mesne and final 7 436 Enforcement of final decrees 8 442 Writ of assistance 9 443 Decree for deficiency in foreclosures, etc 10 445 Process in behalf of and against persons not parties 11 446 Issue of subpoena — Time for answer 12 446 Manner of serving subpoena 13 448 Alias Subpoena 14 457 Process, by whom served 15 457 Defendant to answer — Default — Decree pro confesso 16 459 Decree pro confesso to be followed by final decree — Setting aside default 17 463 Pleadings — Technical forms abrogated 18 467 Amendments generally 19 467 Further and particular statement in pleading may be re- quired 20 474 Scandal and impertinence, reached by motion to strike 21 475 Action at Law erroneously begun as suit in equity — Transfer. 22 476 Matters ordinarily determinable at law when arising in suit in equity to be disposed of therein 23 477 Signature of counsel 24 478 Bill of complaint — Contents 25 479 Joinder of causes of action 26 485 Stockholder's Bill 27 486 Amendment of bill as of course 28 492 Defenses — ^How presented 29 494 882 PRESENT RULES IN EQUITY 883 Rule Page Answer — Contents — Counterclaim 30 601 Reply — ^When required — When cause at issue Zi 508 Answer to amended bill 32 509 Testing sufficiency of defense 33 509 Supplemental pleading 34 51X Bills of revivor and supplemental Bills — Form 35 515 Officers before whom pleadings verified 36 515 Parties generally — Intervention 37 516 Representatives of a class 38 621 Absence of persons who would be proper parties 39 523 Nominal parties 40 529 Suit to execute trusts of will — Heir as party 41 529 Joint and several demands 42 530 Defect of parties — Resisting objection 43 630 Defect of parties — Tardy objection 44 531 Death of party — Revivor 45 532 Trial — Testimony usually taken in open court — Rulings on objections to evidence 46 535 Depositions — To be taken in exceptional instances 47 638 Testimony of expert witnesses in patent and trade-mark cases 48 642 Evidence taken before examiners, etc 49 543 Stenographer — Appointment — Fees 50 645 Evidence taken before examiners, etc 61 546 Attendance of witnesses before commissioner, Master or Examiner 52 547 Notice of Taking testimony before examiner, etc 53 548 Depositions under Revised Statutes, Sections 863, 865, 866, 867 — Cross-examination 54 549 Deposition deemed published when filed 55 555 On expiration of time for Depositions, case goes on trial Calendar 56 556 Continuances ■ 57 557 Discovery — Interrogatories — Inspection and Production of Documents— Admission of execution, or genuineness 58 658 Reference to Master— Exceptional, not usual 59 561 Proceedings before Master 60 563 Master's report — Documents identified but not set forth 61 564 Powers of Master 62 564 Form of accounts before Master 63 667 Former Depositions, etc., may be used before Master 64 568 Claimants before Master examinable by him 66 568 Return of Master's report— Exceptions— Hearing 66 669 Costs on exceptions to Master's report 67 572 Appointment and compensation of Masters 68 573 Petition for rehearing 884 INDEX Rule Page Suits by or against incompetents 70 580 Form of decree 71 581 Correction of Clerical Mistakes in orders and decrees 72 582 Preliminary injunctions and temporary restraining orders. . . 73 583 Injunction pending appeal 74 595 Record on appeal — Reduction and Preparation 75 597 Record on Appeal — Reduction and Preparation — Costs — Correction of omissions 76 599 Record on Appeal — Agreed statement 77 699 Affirmation in lieu of oath 78 600 Additional rules by District Court 79 600 Computation of time — Sundays and Holidays 80 603 These rules effective February 1st, 1913 — Old rules abrogated 81 603 INDEX TO THE PRESENT RULES IN EQUITY Promulgated November 4, 1912 BY SUBJECTS ABATEMENT— Rule Page defenses formerly presentable by, to be made in answer . . 29 494 answer 29 494 ABSENCE— of persons who would be proper parties 39 523 ACCOUNT— matters of, reference to master 59 561 to be identified but not stated in master's report 61 564 forms of, before master 63 567 ACTION, AT LAW— erroneously begun as suit in equity transfer 22 476 joinder of, causes of 26 485 to be prosecuted in name of real party in inter^t 37 516 ADDITIONAL RULES— by district court 79 ADMINISTRATOR— as party 37 ADMISSIBILITY OF EVIDENCE OFFERED— to be pased on by court 46 ADMISSION— of execution, etc., of documents, etc 58 ADVANCEMENT OF CAUSES— notice of interlocutory orders, etc 6 600 516 535 558 436 AFFIDAVIT— plaintiff's, of noncompliance with decree, attachment to *^ . .8 442 issue 885 886 INDEX AFFIDAVIT— coniintied. «"•« P»ee to be made of service of process by person appointed therefor ; 15 ^57 of expert witnesses in patent and trade-mark cases, pro- visions as to 48 542 required on application for continuance ' 57 557 to be identified but not stated in master's report ... 61 664 previously used in court, etc., may be used before master . 64 668 on application for preliminary injunction 73 583 AFFIRMATION— in lieu of oath 78 600 AGREED STATEMENT— record on appeal ■ 77 599 ALTERNATIVE DEFENSES— may be stated in answer 30 501 AMENDED BILL— answer to 32 609 AMENDMENTS— generally 19 467 permitted of any process, pleading, record, etc., 19 467 of bill as of course 28 492 not after defendant's pleading filed, except, etc 28 492 on suggestion of defect of parties 43 530 of pleadings on substitution of parties 45 532 ANSWER— subpcena, proper process to compel 7 436 time for 12 446 to be filed within time named in subpoena 16 459 enlarging time for filing 17 463 when to be filed, on motion to set aside decree pro con^ fesso 17 463 exceptions to, for scandal and impertinence, shall not obtain 21 476 defenses to be presented in 29 494 to be filed in motion to dismiss denied 29 494 if not filed, decree pro confesso entered 29 494 defenses formerly presentable by plea in bar or abate- ment, to be made in 29 494 what to contain 30 501 amendment of, by leave, on reasonable notice 30 601 to omit statement of evidence 30 501 PRESENT RULES IN EQUITY 887 ANSWER— amtinued. p, , ^ to avoid general denial of averments of bill 30 601 to specifically admit, or deny, or explain facts upon which plaintiff relies " 39 501 contents, counterclaim 30 50I to state counterclaims 30 501 may state defenses in alternative 30 501 cause at issue on filing of, unless, etc 31 508 to amended bill 32 go9 new or supplemental, to be filed to amended bill 32 509 exceptions for insufficiency of, abolished 33 509 if insufficient may be amended or matter stricken out . . 33 509 when defect of parties suggested, proceedings on 43 630 may be stricken out for failure to answer interrogatories or produce documents 58 568 to be identified but not stated in master's report 61 564 APPEAL— injunction pending 74 595 record on, diflferences as to 75 597 reduction and preparation 75 597 costs — Correction of omissions. 76 599 agreed statement 77 599 APPEARANCE— filed with clerk to be noted in equity docket 3 434 subpoena proper process to compel 7 436 APPELLANT— to notify opposing party or solicitors, etc 75 597 to file praecipe indicating portion of record on appeal ... 75 597 to condense evidence, etc 75 597 APPELLATE COURT— not to reverse decree unless 46 535 may direct further steps as justice may require 46 535 APPELLEE— to file prmcipe indicating additional portions of record on appeal 75 597 APPOINTMENT— and fees of stenographers 50 545 compensation of masters 68 573 ASSISTANCE— writ of, when to issue 7 436 on refusal to obey decree for delivery of possession 9 443 888 INDEX ATTACHMENT- Rule Page provisions as to 7 436 for noncompliance with decree 8 442 not to be discharged unless upon full compliance with decree, etc 8 442 may issue for failure to answer interrogatories or pro- duce documents 58 558 ATTENDANCE OF WITNESSES— before commissioner, master, or examiner 52 547 AVERMENTS OF BILL— if not denied, deemed confessed, except, etc 30 601 BILL— subpoena proper mesne process to compel appearance and answer to 7 436 when filed, clerk to issue subpoena 12 446 may be taken pro confesso if answer not filed, etc 12 446 exceptions to, for scandal and impertinence, shall not obtain 21 475 to be -signed by solicitors 24 478 of complaint, contents 25 479 stockholder's 27 486 stockholder's, what to contain 27 486 amendment of, as of course 28 492 amended, answer to •. 32 609 supplemental, what necessary in 35 615 of revivor and supplemental bills, what necessary in ... . 35 515 may be dismissed for failure to answer interrogatories or produce documents 68 658 verifieatioB of, on appUcation for preliminary injunc- tion, etc 73 583 BONI>- onorder suspending, etc., injunction pending appeal. .. . 74 595 BOOKS— clerk to keep equity docket, order book, equity journal. . 3 434 papers, etc., production of, required by mastra' 62 664 CALENDAR— trial, case goes on, when 56 556 CAUSE, SPEEDING— provision as to, on motion set aside decree jyro confesso . . 17 463 CAUSES— advancement, conduct and hearing of, notice of inter- locutory orders for 6 436 PKESENT RULES IN EQUITY §89 CAUSES — continued. of action, joinder of ^"'® ^*8e 't^S' ™''"""° °' -^teonexoeptionsto master's "' ''' 67 572 CERTIFICATE— signature of solicitor to pleading to be considered 24 478 CHAMBERS— awarding process, commissions, orders, rules, etc. bv '''^''^' 1 433 CHARGE— to be identified but not stated in master's report 61 564 CIRCUIT COURT OF APPEALS— if appeal lies to, rehearing not granted after term 69 576 CIRCUIT JUDGE— may dispense with motion day if public interest permits 6 436 CITIZENSHIP— name and residence of each party to be stated in biU . . . . 25 479 CLAIM— further and better statement of nature of, may be ordered 20 474 CLAIMANTS— before master, examinable by him 65 568 CLASS— representatives of, may sue or defend 38 521 CLERICAL MISTAKES— in orders and decrees, correction of 72 582 CLERK— duties of 2 434 to keep equity' docket. 3 434 order book 3 434 equity journal 3 434 motions grantable of course by 5 435 to grant as of course, motions and applications not re- quiring order of court or judge 5 435 to issue writ of assistance on refusal to obey decree for delivery of possession 9 443 to issue subpoena when bill filed, and not before 12 446 of court, verification of pleadings before . . , 36 515 890 INDEX CLERK — continued. Rule to send copies of interrogatories to solicitors of record . . 58 658 office of, awarding of process, commissions, orders, rules, etc., by judge at 1 433 ^hen open 2 434 master to return report into 66 669 temporary restraining orders to be filed in 73 683 statement as to appeal to be filed in 75 597 COMMISSIONER— attendance of witnesses before 52 547 COMMISSIONS— award of, by judge at chambers, etc 1 433 COMPENSATION— and appointment of masters 68 673 of master to be fijced by court 68 673 COMPETENCY, ETC.— of questions asked before examiner not to be decided by him 51 646 COMPUTATION OF TIME— Sundays and hoUdays 80 603 CONDUCT OF CAUSES— notice of interlocutory orders for 6 436 CONTEMPT- for noncompliance with mandatory order, etc 8 442 CONTINUANCES— provisions as to 67 557 COPY— of pj-cEcipe indicating portions of record on appeal 75 597 service of, indicating, etc 75 597 CORPORATE OFFICER— to sign interrogatories under oath 58 558 CORPORATION— when interrogatories to be answered by oflBcer of 58 558 stockholder's bill against 27 486 CORRECTION— of clerical mistakes in orders and decrees 72 582 omissions in transcript on appeal 76 699 PEESENT RULES IN EQUITY 891 COSTS— „ , ^ Rule Page payment of, and full compliance with decree before a dis- charge of attachment g 442 of plaintiff to be paid before court will set aside decree ■pro confesso, etc 17 4g3 terms as to, when further and particular statement in pleading required 20 474 to nominal parties 40 529 stenographer's fees to be taxed as 50 545 of incompetent, etc., depositions, to be dealt with by- court 51 546 on continuances, provisions as to 57 557 proving execution or genuineness of document, etc . . . 58 558 reference to master , 59 561 exception to master's report 67 572 may be imposed upon offending solicitors 76 599 imposition of, for infraction of rule as to record on ap- peal 76 599 COUNSEL— signature of 24 478 to give notice of taking testimony before examiner, etc ... 53 548 consent of , to continuances, provisions as to 57 557 to sign petition for rehearing 69 576 COUNTERCLAIM— to be stated in answer 31 501 to be repUed to 31 508 in default of reply to, decree pro confesso entered 31 508 COURT— on motion or own initiative, may order redundant, im- pertinent or scandalous matter stricken out 21 475 testimony usually to be taken in, at trial 46 535 to deal with costs of incompetent, etc., depositions 61 546 contempt of, by witness refusing to appear before com- missioner, master or examiner 52 547 may appoint standing masters in chancery 68 573 provisions as to approval by, of appellant's statement, etc., on appeal '^^ ^^"^ district, additional rules by 79 600 CREDITOR— making claim before master examinable by hmi 65 568 CROSS BILL- Counterclaim to be stated in answer, and not by M am 892 INDEX CROSS-EXAMINATION— Rule Page of expert witnesses in patent and trade-mark cases 48 542 witness where no notice of deposition given 54 549 DAMAGE— averments in bill as to 30 501 Xo be shown on application for preliminary injunction. . . 73 583 DEATH OP PARTY— revivor 45 532 DECREES— of com't to be entered in equity journal 3 434 process to issue to compel obedience to 7 436 compelling obedience to, writ of sequestration 8 442 discharge of attachment upon compliance with 8 442 for specific performance, provision as to 8 442 for performance of specific act, attachment when 8 442 solely for payment of money, writ of execution on 8 442 final, enforcement of 8 442 for delivery of possession, writ of assistance on refusal to obey 9 443 for deficiency in foreclosures, etc 10 445 pro confesso on default in answer 16 459 when may be set aside ". 17 463 to be followed by final decree 17 463 final, following decree pro confesso 17 463 pro confesso entered, if answer' not filed, etc 29 494 in default of reply to counterclaim 31 508 not to be reversed unless material prejudice would re- sult 46 535 form of 71 581 shall not recite pleadings 71 581 correction of clerical mistakes in 72 682 final, appeals froin in injunction suits 74 595 to be sent up with agreed statement on appeal 77 699 DEEDS, ETC.— dceree for delivering up, attachment in 8 442 DEFAULT— to answer, bill taken pro confesso 16 459 of reply to counterclaim, decree pro confesso 31 508 in answer to amended bill, proceedings on 32 509 DEFECT— in proceeding not affecting substantial rights, court to disregard 19 467 PRESENT EULES IN EQUITY 893 DEFECT— conKnwed. Rule p^ge of parties resisting objection 43 530 tardy objection to , 44 531 DEFENDANT— subpoena proper process to compel appearance and answer of 7 436 if not found, writ of sequestration proper process to issue, etc 7 436 to take notice of certain decrees 8 442 required to file answer on or before 20th day after service of subpoena 12 446 service of subpoena to be upon 13 448 to answer within time named in subpoena 16 459 person refusing to join as plaintiff or defendant may be made defendant 37 516 time within which to take deposition for 47 538 DEFENSE— further and better statement of nature of, may be ordered 20 474 how presented 29 494 what to be heard separately and disposed of before trial, etc 29 494 testing sufiBciency of 33 509 DEFICIENCY IN FORECLOSURES, ETC.— decree for 10 ^'^^ DELAY— signature of solicitor to pleadings certificate that plead- ings not interposed for 24 478 master to certify reason for any to court 60 563 imposition of costs for, on exceptions to master's report . . 67 572 DELIVERY OF POSSESSION— writ of assistance to enforce ' DEMANDS— joint and several 436 530 DEMURRERS- ^^ ^^^ abohshed DEPOSITIONS— g to be taken in exceptional mstances *' '^ time within which to be taken ^^ ^^^ taken before examiners, etc 894 ^ iiJDEX DEPOSITIONS— cora^iwMed. Rule Page expense of taking to be advanced by party calling wit- nesses SO 545 court to deal with costs of incompetent, etc 51 546 under R. S. 863, 865, 866, 867,— Cross-examination .... 54 549 deemed published when filed 55 555 on expiration of time for, case goes on trial calendar. ... 56 556 to be identified but not set forth in master's report 61 564 may be taken by master 62 564 etc., former may be used before master 64 568 previously used in court may be used before master. ... 64 568 DIFFERENCES CONCERNING DIRECTIONS— as to contents of record on appeal, provisions as to 75 597 DISABILITY— of any party to be stated in bill 25 479 DISCOVERY— interrogatories for, when to be filed 58 558 DISMISS— motion to, setting down for hearing 29 494 DISMISSAL— of causes continued, if not reinstated 57 557 DISTRICT COURTS— always open for certain purposes 1 433 to establish times and places when motions may be made and disposed of 6 436 additional rules by 79 600 DISTRICT JUDGE— may make, direct and award process, commissions, orders, rules, etc 1 433 DOCUMENTS— inspection and production of 58 558 court may enforce inspection and production of 58 558 interrogatories for discovery of, when to be filed 58 558 execution or genuineness of, call for admission of 58 558 identified but not set forth in master's report 61 564 production of, required by master 62 564 previously used in court may be used before master. .. . 64 568 DWELLING HOUSE— service of subpoena by leaving copy at 13 448 PRESENT RULES IN EQUITY 895 EQUITY DOCKET— clerk to keep ^"^ ^^« clerk to keep index of ..." .' ' ' ' ' ' ' " ' ' ' ' 3 ^^^ noting of order in, not notice 4 434 day of return of master's report to be entered in . ...... 66 569 E9UITY JOURNAL— clerk to keep .404 clerk to keep index of ' ..... 3 434 EQUITY— suit in, action at law erroneously begun as — transfer 22 476 matters ordinarily determinable at law when arising in, to be disposed of therein 23 477 ERROR OR DEFECT IN PROCEEDINGS— court to disregard when not affecting substantial rights . . 19 467 EVIDENCE— mere statement of, to be omitted from bill 25 479 admissibility of, to be passed on by court 46 535 offered and excluded, proceedings on 46 535 affidavits of expert witnesses in patent and trade-mark cases, when not to be used as 48 542 time within which to be taken 47 533 taken before examiners to be returned to court 49 543 taken before examiners, provisions as to 51 546 objections to, taken before examiner, etc 51 546 court or judge may enforce answers to interrogatories and production of documents containing 58 558 master may direct mode of proving matters before him . 62 564 before master on examination to be taken down 65 568 how to be stated in record 75 597 EX PARTE— cause to be proceeded with after decree pro con/esso. .. . 16 459 EXAMINATION— to be identified but not stated in master's report 61 564 EXAMINERS— evidence taken before, to be returned to court 49 543 evidence taken before, provisions as to 51 546 not to decide on competency, materiaUty or relevancy of questions 51 5™ attendance of witnesses before 52 547 notice of taking testimony before, etc 53 548 cross examination of witness before 54 549 896 INDEX EXCEPTIONS— Rule Page for insufficiency of answer abolished 33 509 to evidence offered and excluded, provisions as to 46 535 to maeter's report 66 569 to master's report, costs on 67 572 EXECUTION— writ of, provisions as to , 8 442 admission of, of documents, etc 58 558 EXECUTOR AS PARTY 37 516 EXPERT WITNESSES— testimony of, in patent and trade-mark cases 48 542 FACTS— ultimate statement of, upon which relief asked, to be stated in bill 25 479 insufficiency of, as defense, how presented 29 494 material, may be alleged in supplemental pleading 34 511 not to be stated in master's report 61 464 FEES— of stenographer 50 545 of masters in chancery 68 573 FILE NUMBER— each suit and all papers, process, etc., to be marked with, and noted on equity docket 3 434 FILING OF DEPOSITION- deemed publication 55 555 FINAL HEARING— points of law may de disposed of before 29 494 FINAL PROCESS— issue and return of 1 433 to be served by marshal, deputy, etc 15 457 JORECLOSURE OF MORTGAGES, ETC — decree for balance due 10 445 FORM OF ACCOUNTS BEFORE MASTER 63 567 FORM OF DECREE 71 531 FORMER DEPOSITIONS, ETC.— may be used before master 64 568 PEESENT RULES IN EQUITY 897 FORMS- R„,. P.^, technical, of pleadings abrogated 18 467 alternative — prkyer for specific relief may be in 25 479 GENUINENESS OF DOCUMENTS— admission of , etc 58 558 GUARDIAN— as party 37 516 may sue for infants 70 680 ad litem, may be appointed by court or judge, etc 70 680 HEARING ON MERITS— court open for making interlocutory motions, orders, etc., preparatory to 1 433 of causes, notice of interlocutory orders for 6 436 final, points of law may be disposed of before 29 494 on exceptions to report of master 66 669 HEIR AS PARTY— to suits to execute trusts of will 41 529 HOLIDAYS— legal, clerk's ofiice not open 2 434 computation of time 80 603 IMPERTINENCE— scandal, exceptions to bills, answers, etc., for, shall not obtain ■•• 21 475 580 INCOMPETENTS— suits by or against 70 INDICES— of equity docket, order book and equity journal, clerk to keep 3 434 INFANTS— nothing to be taken against as confessed 30 501 nominal parties in suits not against 40 529 may sue by guardian or by prochein ami 70 580 guardians ad litem may be appointed to defend suits ^ .. 70 580 agamst INJUNCTION- s 442 for specific performance, provision as to o ^^ preliminary, and temporary restraining orders 7d asd ^ ,. 1 74 ovo pendmg appeal 57 898 INDEX INSUFFICIENCY OF FACT— Rule Page defense of, how presented i 29 494 INTERLOCUTORY— motions, orders, rules, etc., court open for making and directing 1 433 injunctions 73 583 orders, rulings, etc., may be made at any time and place 6 436 INTERROGATORIES— written, practice as to, to be followed in case of refusal of witness before master, examiner, etc 52 547 when to be filed 58 658 when to be answered, etc 58 558 court may enforce answers to 58 658 to be answered separately and fully, in writing, under oath, and signed 68 558 objections to, provisions as to i 58 S58 copies to be sent by clerk to solicitors of record 68 568 examination of accounting party before master on 63 667 claimants before master examinable on 65 568 INTERVENTION— when allowed 37 516 ISSUE— of subpoena 12 446 cause at, upon filing of answer, except, etc 31 608 JOINDER— of causes of action 26 485 of parties, provision as to 37 516 JOINT AND SEVERAL DEMANDS 42 530 JUDGE— district, may make, direct and award process, commis- sions, orders, rules, etc 1 433 in chambers, orders by, to be entered in order book 3 434 on notice, if any, may make interlocutory orders, etc 6 436 verification of pleadings before 36 515 JURISDICTION— ground on which depends to be stated in bill 25 479 JUSTICE— convenient administration of, joinder of causes of action to promote 26 485 PEESENT EULES IN EQUITY 899 LAND— J /. Rule Page decree for conveyance of, attachment in 8 442 LAW— action erroneously begun as suit in equity— transfer .... 22 476 matters ordinarily determinable at, when arising in suit in equity, to be disposed of therein 23 477 points of, may be disposed of before final hearing ' 29 494 LETTER— call for admission of genuineness of, etc 58 558 LOSS— immediate and irreparable to be shown on application for temporarj' restraining order 73 533 LUNATIC— nothing to be taken against as confessed 30 601 suits by or against 70 530 MARSHAL— deputy, etc., to serve all process, except 15 457 MASTER— attendance of witnesses before 52 547 reference to, exceptional not usual 59 561 proceedings before 60 563 duties of 60 563 may proceed ex parte when 60 563 may adjourn examination, etc., when 60 563 to proceed with reasonable diligence 60 563 reports of, — documents to be identified but not set forth 61 564 powers of 62 564 to regulate all proceedings before him 62 564 may require production of all books, papers, etc 62 564 form of accounts before 63 567 former depositions, etc., may be used before 64 568 claimants before, examinable by him 65 568 appointment and compensation of 68 573 entitled to attachment for his compensation, when 68 573 not to retain report as security for compensation 68 573 pro hoc vice, in particular cases, may be appointed by court 68 573 in chancery, standing, may be appointed by the court ... 68 573 MASTER'S REPORT— return of — exceptions — hearing 66 569 costs on exception to 67 572 not to be recited in decree or order 71 581 900 INDEX MATERIAL SUPPLEMENTAL MATTER— Rule may be set forth in amended pleadings 19 467 MATERIALITY— of questions not to be decided by examiner 51 546 MATTER— further and better particulars of, in any pleading may be ordered 20 474 new or affirmative, in answer, deemed denied by plaintiff . 31 508 ordinarily determinable at law, when arising in suit in equity, to be disposed of therein 23 477 MERITS— hearing on, court open for making interlocutory motions, orders, etc., preparatory to 1 433 MESNE PROCESS— issuing and returning 1 433 subpoena shall constitute proper 7 436 to be served by marshal, deputy, etc 16 457 MISJOINDER— defense of, how presented 29 494 MISTAKES— clerical, correction of, in orders and decrees 72 582 MONEY— payment of, final process to execute decree for 8 442 MORTGAGES— foreclosure of, decree for balance due 10 445 MOTIONS— court open for making and directing interlocutory 1 433 when may be made 1 433 or proceedings grantable of course, received and disposed of by clerk 2 434 grantable of course by clerk 5 436 for mesne process grantable of course by clerk 5 435 and applications not requiring order of court or judge grantable of course by clerk 6 436 grantable of course by clerk may be suspended, etc., by judge 5 435 requiring notice and hearing, times and places for 6 436 to enlarge time for filing answer 17 463 will not be granted unless upon payment of costs, 17 463 to strike out, to test sufficiency of answer 33 509 PRESENT RULES IN EQUITY 901 MOTION DAY ^"'* ^^^^ may be dispensed with by senior circuit judge . .' .' .' ' .' 6 436 MOTION TO DISMISS— defenses to be presented in 29 404 NAMES— of plaintiff and defendant to be stated in bill 25 479 NOMINAL PARTIES 40 529 NON EST INVENTUS— return of, issuance of writ of sequestration 8 442 NONJOINDER— defense of, how presented 29 NOTARY PUBLIC— verification of pleadings before 36 494 515 NOTICE— reasonable, to parties, of process, commissions, orders, rules, etc 1 433 of orders 4 434 order without prior, to be mailed by clerk to party, etc. 4 434 of interlocutory orders, etc 6 486 defendant to take of certain decrees 8 442 of motion to dismiss 29 494 reasonable, of amendment of answer, by leave, etc 30 601 reasonable, of filing supplemental pleading 34 511 to be given to parties to be substituted 45 532 reasonable, of motion to enforce answers, etc 58 658 of taking testimony before examiner, etc 53 548 to parties or solicitors of proceedings before master 60 563 no preliminary injunction granted without. ., 73 583 OATH— should be made by plaintiff if special relief asked 25 479 stockholder's bill to be verified by 27 486 interrogatories to be signed under 58 558 petition for rehearing to be verified by 69 576 afiirmation in lieu of 78 600 OBJECTIONS— to defect of parties * 43 630 tardy, to defect of parties 44 631 to evidence taken before examiner, provisions as to ... . 61 546 to be noted by examiner, etc 51 646 902 INDEX OFFICERS— Rul6 Page before whom pleadings verified 36 515 OLD RULES— abrogated 81 603 OMISSIONS, ETC.— in orders and decrees may be corrected without ' re- hearing 72 582 of portions of record on appeal 75 597 correction of, in record on appeal 76 599 ORDERS— when may be made 1 433 award of, by judge at chambers, etc 1 433 interlocutory, making and directing 1 433 grantable of course, received and disposed of by clerk . . 2 434 filed with clerk to be noted in equity docket 3 434 of court to be entered in equity journal 3 434 made or passed by clerk, or judge in chambers, to be entered in order book 3 434 made without notice, to be mailed by clerk 4 434 noting of, in equity docket or entered in order book, not notice to parties 4 434 interlocutory, notice of 6 436 interlocutory, judge may at any time and place make. . . 6 436 process to issue to compel obedience to 7 436 mandatory, for specific performance, provision as to ... . 8 442 for delivery of possession, writ of assistance on refusal to obey 9 443 in favor person not party, how enforced 11 446 against person not party, how enforced 11 446 that bill be taken pro confesso on default 16 459 shall not recite pleadings 71 581 correction of clerical mistakes in 72 582 temporary restraining, and preliminary injunctions 73 583 Justice or judge may make order suspending, etc., in- junction pending appeal 74 595 ORDER BOOK— clerk to keep 3 434 to contain all orders made or passed by judge in cham- bers or by clerk 3 434 index of, clerk to keep 3 434 entry of order in, not notice » 4 434 PAPERS— filed with clerk to be noted in equity docket 3 434 production of, required by master 62 564 PRESENT RULES IN EQUITY 903 PARTIES— p , Rule Page noting of entry of order not notice to 4 434 persons not made 25 479 generally — intervention 37 gjg joinder of 37 gjg proper, absence of persons who would be 39 523 nominal, appearance of 40 529 in cases of joint and several demands 42 530 defect of, resisting objection 43 530 defect of, tardy objection, proceedings on 44 531 to give notice of taking testimony before examiner, etc . 53 548 clerk to send copies of interrogatories to if there be no solicitor of record 58 558 notice to, of proceedings before master 60 563 failing to appear before master 60 563 may be examined on oath by master 62 564 accounting before master, how to bring in accounts 63 567 may examine accounting party viva voce or upon inter- I'ogatory 63 567 time for filing exceptions to master's report by 66 569 to verify petition for rehearing by oath 69 676 to be given notice of preliminary injunctions, etc 73 583 PARTY— when order made in absence of, clerk to mail copy 4 434 heir as, to execute trusts of will 41 529 death of, revivor . . . . , 45 532 procuring reference to master, payment of costs by 59 561 plaintiff, or defendant by representation 38 521 PATENT CASES— testimony of expert witnesses in 48 542 PERSONS NOT PARTIES— process on behalf of and against 11 PERSON APPOINTED TO SERVE PROCESS— to make affidavit thereof 15 457 PERSONS NOT MADE PARTIES— bill should state why omitted 25 PERSON, NON COMPOS— nothing to be taken against as confessed 30 501 guardians appointed by the court to defend 70 580 may sue by guardians 70 580 PERSONS- 07 =,fi joining as parties, all interested ^' oin who would be proper parties, absence of 39 bj6 constituting a class, may sue or defend by representative 38 o21 446 479 904 INDEX PERSON MAKING CLAIM BEFORE MASTER— Rule Page examinable by him ■ 65 568 PETITION— for rehearing 69 576 PLAINTIFF— entitled to subpoena as of course when bill filed 12 446 time within which to take deposition for 47 538 PLEA IN BAR— defenses formerly presentable by to be made in answer . . 29 494 PLEADINGS— court always open for filing of v 1 433 technical forms abrogated .... 1 18 467 court may permit any to be amended 19 467 further and particular statement in, may be required .... 20 474 furthei' and better particulars of matter stated in any may be ordered 20 474 alteration in, on transfer of action at law erroneously begun as suit in equity 22 476 to be signed by solicitors 24 478 when bill may be amended as of course 28 492 demurrers and pleas abolished 29 494 supplemental, permitted when 34 511 officers before whom verified 36 515 filing, or amendment of, on substitution of parties 45 532 PLEAS ABOLISHED 29 494 POSSESSION— delivery of, writ of assistance to enforce 7 436 delivery of, writ of assistance on refusal to obey decree for 9 443 POWERS— of master 62 564 PRACTICE— additional rules for, by district court 79 600 PRECIPE— filing indicating portions of record on appeal 75 597 PRAYER— for special relief to be stated in bill 25 479 PRECEDENCE— given to hearing in cases of temporary restraining orders 73 583 PRESENT RULES IN EQUITY 905 PREJUDICE— I < • , .. Rule Page unless material will result, appellate court not to reverse deoree for rejection of evidence 4g ggg PRELIMINARY— injunctions and temporary restraining orders 73 533 PREPARATION— and reduction of record on appeal 75 597 — costs for infraction of rule as to transcripts 76 594 corrections of omissions in transcripts 76 599 PRO COUFESSO— taking bills, motions for, grantable of course by clerk 5 435 bill may be taken, when answer not filed, etc 12 446 decree on default of answer 16 459 decree to be followed by final decree 17 463 decree entered if answer not filed 29 494 PROCEEDINGS— before master, speeding of 60 563 master's powers 62 564 PROCESS— mesne and final, issuing and returning 1 433 award of, by judge at chambers, etc 1 433 issuing and return of 1 434 issued and returns thereon to be noted in equity docket . . 3 434 for taking bills pro confesso, grantable of course by clerk . . 5 435 mesne or final, to enforce and execute decrees grantable of course by clerk 5 436 mesne and final, defined 7 436 in behalf of and against persons not parties 11 445 by whom served 15 457 mesne and final, to be served by marshal, deputy, etc. . . 15 457 may be served by person appointed therefor 15 457 court may permit any process to be amended 19 467 additional rules as to, by district court 79 600 PROCHEIN AMI— may sue for infants or incompetents 70 580 PRODUCTION OF BOOKS— papers, etc., may be required by master 62 564 PUBLICATIONS— of deposition, when filed 55 565 906 INDEX QUESTIONS— ■ Rule Page competency, materiality, or relevancy of, not to be de- cided by examiner 51 546 RECORD— court may permit any record to be amended 19 467 how evidence to be stated in 75 597 appellant's statement as to record on appeal to become part of— 75 597 on appeal indicating portions of 75 597 on appeal additional portions, how indicated 75 597 on appeal reduction and preparation 75 597 on appeal difference as to 75 597 on appeal reduction and preparation — costs — correction of omissions 76 599 more than one copy of same paper is prohibited 76 599 on appeal agreed statement 77 599 REDUCTION— and preparation of record on appeal 75 597 costs for infraction of rule as to 76 599 corrections of omissions 76 599 REFERENCE— to master — exceptional, not usual 59 561 REHEARING— petition for, provisions as to 69 576 correction of clerical mistakes in orders and decrees without 72 582 REINSTATEMENT— of causes, continued 57 557 RELEVANCY— of questions not to be decided by examiner, etc 51 546 RELIEF— special, prayer for, to be stated in bill 25 479 to be verified by oath of plaintiff, etc 25 479 REPLY— when required — when cause at issue 31 508 more required unless asserts set-off or counterclaim. ... 31 508 REPORT— master's, to court 60 563 documents to be identified but not set forth Bl 564 of master, exceptions, hearing 66 569 of master, costs on exceptions to . 67 57? of master, not to be recited in decree or order. . , 71 581 PRESENT RULES IN EQUITY 907 REPRESENTATIVES— Rule Page of class may sue or defend 38 521 RESIDENCE— and citizenship of each party to be stated in bill 25 479 RESTRAINING ORDERS— temporary, and preliminary injunctions 73 583 RETURNS— on process to be entered on equity docket 3 434 RETURN— of subpoena not executed 14 457 of master's report — exceptions — hearing 66 569 REVIVOR— bills of, what necessary in 35 515 on death of party 45 532 RIGHTS— substantial, court to disregard error or defect in proceed- ings which does not affect 19 467 RULES— ' when they may be awarded 1 interlocutory, making and directing 1 433 award of by judge at chambers, etc 1 433 grantable of course, received and disposed of by clerk . . 2 434 additional, by district court - 79 600 when new equity effective °l old, abrogated *^ SCANDAL AND IMPERTINENCE— 21 433 603 603 SALE— ^ . , , decreed for amount due above proceeds m foreclosure , ,. 1 . . 10 445 and hen sales 475 SCANDALOUS MATTER- . signature of soUcitor, certificate that none mserted m ^^ ^^^ pleading SEQUESTRATION— , ,, ^ 7 436 writ of, proper process if defendant not found 7 43b writ of, against estate of delinquent ■ • ■ • writ of, person other than disobedient party to com- ply with mandatory order for specific performance .... 8 44i 908 INDEX SERVICE — Rule Page of subpcena by delivery of copy, etc 13 448 SET-OFF— to be stated in answer 30 501 repUed to 31 508 SIGNATURES— pleadings to be signed by solicitors of record 24 478 SOLICITORS— noting or entry of order not notice to 4 434 of record to sign every pleading 24 478 of record to be furnished copy of amended bill 28 492 clerk to send copies of interrogatories to 58 558 notice to, of proceedings before master 60 663 offending, in preparation of record, imposition of costs on 76 599 to file prwdpe indicating portions of record on appeal. ... 75 597 SPECIFIC PERFORMANCE— by some other person .than disobedient party 8 442 STANDING MASTER,S— in chancery, courts may appoint 68 673 STATEMENT— further and particular in pleading may be required 20 474 agreed on appeal certified as the record 77 599 STENOGRAPHER— appointment — fees 50 545 STOCKHOLDER'S BILL 27 486 SUBPffiNA— shall constitute proper mesne process, etc 7 436 issue of, time for answer 12 446 to issue when bill filed and not before 12 446 to contain names of parties 12 446 when returnable 12 446 memorandum at bottom thereof 12 446 joint, against more than one defendant 12 446 or separately, for each defendant 12 446 manner of serving 13 448 not executed, provision as to 14 457 14 457 PRESENT RULES IN EQUITY QOO SUBSTITUTION— of proper parties by revivor ^^ g'lg SUFFICIENCY— of defense, how tested 33 ^^ SUITS— papers filed, process issued, etc., to be noted on equity docket _/ 3 ^g^ to execute trusts of will— heir as party 41 529 by or against incompetents 70 ggQ SUPPLEMENTAL PLEADING— when may be filed 34 kj, SUPREME COURT— if appeal lies to, rehearing not granted after term 69 576 SUNDAYS— clerk's office not open 2 434 and holidays — computation of time 80 603 TEMPORARY— restraining orders and preliminary injunctions 73 583 TERM— awarding process, commissions, orders, rules, etc., by judge at chambers, etc., in 1 433 orders, decrees, etc., of court to be entered in equity journal 3 434 rehearing not granted after, if appeal lies 69 576 TESTIMONY— usually to be taken in open court at trial 46 535 of expert witnesses in patent and trade-mark cases 48 542 may be taken down by stenographer 50 545 expense of taking, must be advanced by party calling a witness 50 545 to be signed by witness 61 546 of witnesses before examiner to be read to him. 51 546 ■contempt of court for refusal of witness to give testi- mony before commissioner, examiner, etc 52 547 notice of taking before master or examiner 53 548 no further by deposition to be taken after case goes on trial calendar, except, etc 56 556 how stated in record on appeal 75 597 TESTING SUFFICIENCY OF DEFENSE 33 509 910 INDEX TIME— Eule Page enlargement of, for full compliance with decree 8 442 enlargement of, to file answer 16 459 TIME TO TAKE TESTIMONY 47 538 on expiration of, for depositions, case on trial calendar. . 56 556 computation of — Sundays and holidays 80 603 TRADE-MARK CASES— testimony of expert witnesses in 48 542 TRANSCRIPT— cost of, to be advanced by party ordering 50 545 of evidence before examiner not to include argument ... 51 546 on appeal, indicating portions of 75 597 on appeal, supplemental, correction of, omissions by. . . . 76 599 TRANSFER— of action at law erroneously begun as suit in equity 22 476 TRIAL— testimony usually taken in open court, rulings on objec- tions to evidence 46 535 calendar, on expiration of time for depositions case goes on 56 556 TRIALS— separate — court may order separate trials of joint actions 26 485 TRUSTEE AS PARTY , 37 516 VACATION— awarding process, commissions, orders, rules, etc., by judge at chambers in 1 433 motion day for two months in a year may be dispensed with 6 436 VALUE— averments in bill other than of, if not denied, deemed confessed 30 501 VERIFICATION— bill to be verified by oath if special relief asked 25 479 of pleadings, officers before whom taken 36 515 petition for rehearing to be verified by oath, etc 69 576 VIVA VOCE— master may examine persons before him 65 668 PKESENT RULES IN EQUITY 911 VOUCHERS- R„le Page production of, required by master 62 574 WILL— execution of trusts of — heir as party 41 529 WITNESSES— testimony usually to be taken in open court 46 535 depositions of, may be taken when 47 538 testimony of expert in patent and trade-mark eases .... 48 542 before examiners, etc., cross-examination of, etc 49 543 testimony of, to be read to 51 546 testimony of, to be signed by. i 51 546 refusing to sign testimony 50 545 expense of taking deposition of, to be advanced by party calling 50 545 attendance of before commissioner, etc 62 547 refusing to appear or give evidence before commissioner, master or examiner 52 547 compensation of for attendance before commissioner, master or examiner 52 547 may be examined orally before court, or cross-examined before examiner, etc., when no notice of deposition given 54 549 no testimony of, by deposition, after case goes on trial ^ calendar 56 556 may be examined on oath by master 62 564 testimony of, how stated in record on appeal 75 597 WRITING— call for admission of execution or genuineness of 58 558 WRITINGS- production of required by master "■^ oo* untdex RULES IN ADMIRALTY BY NUMBERS AND TITLES Rule Page 1. Process, issue and service of 606 2. In suits in ■personam 609 3. Bail, summary process. 613 4. Attachment, when dissolved 615 5. Bonds or stipulations 616 6. Reduction of bail; new sureties 617 7. Warrant of arrest 617 8. Ship's tackle, etc., possession of 618 ' 9. Cases of seizure, process in 618 10. Perishable goods may be sold 621 11. Ship, delivery to claimant 622 12. Suits by material-men 626 13. Suits for mariner's wages 631 14. Suits for pilotage 635 15. Suits for damage by collision 636 16. Suits for assault and battery 638 17. Suits for hypothecation 639 18. Suits on bottomry bonds 641 19. Suits for salvage 641 20. In petitory and possessory suits 644 21. Decrees, enforcement of 646 22. Informations and hbels on seizure 647 23. Libels in instance causes 650 24. Amendments to libels, when of course 653 25. Security for costs, when required 656 26. When claim must be verified 657 27. Answer to be verified 659 2S. Exceptions to answer 660 29. Default for want of answer 661 30. Further answer, when required 662 31. Allegations which need not be answered 663 32. Personal answers, right to 664 33. When verification dispensed with 665 9lg RULES IN ADMIRALTY 913 Rule 34. Intervention in suits in rem g65 35. Stipulations, how given gg7 36. Exceptions to libel, answer, etc 667 37. Attachment, garnishee to answer 668 38. Property may be ordered into court 670 39. Non-appearance of libellant 671 40. Decree may be rescinded, when 672 41. Sale of property 674 42. Deposit of moneys 676 43. Intervention for proceeds 677 44. References 679 45. Appeals 682 46. Practice, courts may regulate 689 47. Bail, effect of State laws .692 48. Answer; sum in dispute less than $50 693 49. Further proof on appeal 693 50. Oral evidence transmitted on appeal 696 51. New facts in answer, how put at issue 696 52. Records on appeal, what to contain 697 53. Cross-libel, respondent to give security 701 54. Libel or suit under Act Mar. 3, 1851 705 55. Proof of claims before commissioner 708 56. Who may defend 709 57. Where suits brought under Act Mar. 3, 1851 710 58. Rules to apply in causes pending on appeal 711 59. Collision suits, proceedings for contribution 712 lE-DEX TO ADMIRALTY RULES BY SUBJECTS ADMIRALTY— Rule Provisions for amendment of libels in 24 653 Where third party is permitted to intervene in suits in rem 34 665 How stipulations in, are to be given and taken .... 35 667 When libellant deemed in default 39 671 ADVERSE PROPRIETORS— 20 644 AFFIRMATION— See also Oath. R. 26-32, pp. 657-664; R. 33-7, pp. 665-668 ... 48 693 Provisions as to aflSrmance in suits in rem 26 657 AGENT— Provisions as to verification of claim by agent, in suits in rem 26 657 AMENDMENTS— Provisions for, in informations and libels in causes of admiralty and maritime jurisdiction 24 653 Amendment of libel where answer alleges new facts. 51 696 ANSWER— Of defendant to all libels in civil and maritime causes, contents of, etc 27 669 Exceptions to 28 660 Effect of defendant omitting or refusing to answer libel on return-day, etc . . . ^ 29 661 Provisions for attachment when answer is not filed, or exceptions taken thereto 30 662 Where answer would expose defendant to prosecu- tion or punishment for crime, etc 31 663 As to right of defendant to require personal answer of libellant, upon oath, to interrogatories at close of answer; proceedings on default of due answer. . 32 664 When oath or affirmation of either libellant or de- fendant, to answer an interrogatory may be dis- pensed with 33 665 914 ADMIEAL'fy RULES 915 ANSWER— continued. „ , ~ , . ""'« Page io What, exceptions to answer may be taken 36 667 By garnishee, in case of foreign attachment, pro- visions respecting 37 ggo Not to be verified where amount in dispute does not exceed $50.00 48 ggg , APPEAL— How stipulations on, are to be given 35 667 From District to Circuit Courts, how, when, and within what time made 45 682 Further proof, how taken in a Circuit Court upon an admiralty appeal 49 693 Further proof, when taken, to be used in evidence on 50 696 Provisions as to what shall be contained in, and what shall be omitted from records on appeal from Dis- trict to Circuit Courts 52 697 ARRESTS— Provisions as to bills, etc., where simple warrant of arrest issues in suits in personam 3 613 Amount for which warrant of arrest in suits in per- sonam may issue 7 617 Warrant of arrest of ship, etc., in suits in rem, when, how, and by whom issued and served 9 618 Provisions for sale of perishable articles arrested .... 10 621 Proceedings when ship is arrested in suits in rem .... 11 622 Of ships in petitory and possessory suits, provisions for 20 644 Provisions as to bail in certain cases, in suits in per- sonam 47 692 ASSAULT— On the high seas, suits for, how brought 16 638 ATTACHMENT— In suits in personam where goods, chattels, etc., are attached 4 615 Provisions for attachment against defendant ' to compel further answer to libel, etc 30 662 May issue to compel answer by libellant to interroga- tories in defendant's answer 32 664 Against party having possession of freight or other proceeds of property attached in proceedings in rem..., 38 670 BAIL— Provisions as to bail where a simple warrant of ar- rest issues in suits in personam 3 613 916 INDEX BAIL — continued. Rule Page In suits in personam, when and how reduced 6 617 When and how new sureties may be required 6 617 To be taken in suits in personam 47 692 BEATING— 16 638 BONDS— In cases of arrest in suits in personam 3 613 When goods, chattels, etc., are attached in suits in personam 4 615 Provisions as to bonds to be given on dissolving at- tachment in suits in personam 4 615 How, when, and before whom given and taken 5 616 In suits in personam, when and how bail is reduced . . 6 617 When and how new sureties may be required on. .. . 6 617 BOTTOMRY BONDS— Suits on, how prosecuted 18 641 CLAIMANT— Provisions as to stipulation by claimant of property in suits in rem 4 615 In suits in rem, how party claiming property shall verify claim 26 655 claims- How proofs of claims are made under the limited liability act 55 708 CLERKS— Provisions as to what clerks of District Courts shall put in records on appeals in Circuit Court 52 697 COLLISION— Suits for collision, how prosecuted 15 636 Provisions as to proceedings by claimant of vessel, or respondent proceeded against in personam, against any other vessel contributing to same collision 59 712 COMMISSION— When to issue to take answer of defendant in certain cases 33 665 Provisions for issuing a commission to take further proof in a Circuit Court on an admiralty appeal. . 49 693 COMMISSIONERS— Provisions as to reference to, and powers of same. . . 44 679 Admiralty rules 917 CONSIGNEE— „ , „ „ . . Rule Page JrTovisiona as to verification of claim by consignee, in suits in rem 26 657 COSTS— To be paid by defendant on opening default in an- ^enas 29 661 In case of intervention respecting proceeds of sale in registry of court where claim is deserted or dis- missed 43 g77 CRIM&- Defendant may object by answer to answer allega- tion that would expose him to prosecution and punishment for crime, etc 31 663 CROSS-LIBEL^ General provisions as to same 53 701 DECREE— Provisions for writ of execution on final decree for payment of money 21 646 DEFAULT— Provisions as to default if defendant omit or refuse to answer the libel in time 29 661 When and how default may be set aside 29 661 Dismissal of libel on default of due answer by libel- lant to interrogatories in answer 32 664 LibeUant in admiralty suits, when deemed in default 39 671 When decree rendered against defendant by de- fault may be reopened 40 672 DEPOSITIONS— Provisions for taking further proof in a Circuit Court on an admiralty appeal by deposition 49 693 Either party taking further evidence of same wit- nesses, etc 50 696 DISMISSAI^ Of libel on default of due answer by libellant to in- terrogatories in answer 32 664 When libel may be dismissed on default of libellant. . 39 671 EVIDENCE— Oral evidence in nature of further proof m a Circuit Court on an admiralty appeal, how taken .... 4&-50 693-696 918 INDEX EXCEPTIONS— Rule Page Answer, provisions as to 28 660 Provisions for attachment against defendant where full answer to the libel is not filed and exceptions taken thereto 30 662 To libel, allegation, or answer, to what they may be taken 36 667 EXECUTION— When summary execution to issue when bond or stipulation is given where a simple warrant of arrest in suits in personam^ 3 61? When summary execution to issue when bond or stipulation is given on an attachment being dis- solved in suits in personam 4 615 Nature of, in cases of final decree for payment of money 21 646 FIERI FACIAS— See Execution 21 646 FOREIGN PORTS— Suits for moneys taken up in foreign port for sup- plies, repairs, etc., how brought 17 639 FORFEITURE-See Crime 31 663 FREIGHT— Proceedings against ship and freight in rem by material-ihen 12 626 Proceedings against ship and freight in rem for mariners' wages 13 631 Suits against ship and freight, how brought, when founded upon a mere maritime hypothecation of moneys in a foreign port for supplies, repairs, etc. 17 639 Provisions where freight or other proceeds attached in suits in rem are in the hands or possession of any party 38 670 FURTHER proof- How taken in a Circuit Court upon an admiralty appeal 49 693 When taken, to be used in evidence on appeal 50 696 GARNISHEE— Provisions as to same on foreign attachment 37 668 IMPERTINENCE— Provisions for exceptions to . . ^ 36 667 ADMIRALTY RULES 919 IMPRISONMENT— 1? J Ui Rule Page ior debt on process from admiralty court abolished in certain cases ^^ gg2 INFORMATIONS— Contents of informations and libels of information upon seizures for any breach of the revenue or navigation or other laws of the United States 22 647 Provisions as to amendment of 24 653 INTERROGATORIES— At close of libel, how answered 27 659 INTER VENORS— How third party is permitted to intervene 34 665 Stipulations given by, are to be given and taken 35 667 Proceedings by in tervenor respecting claim for de- livery to him of proceeds 43 677 IRRELEVANCY— Provisions for exceptions to libel, etc., for 36 667 LIBEI^ To be filed before mesne process issues 1 606 Contents of libel and informations upon seizures or any breach of the revenue, navigation, or other laws of the United States 22 647 Of, in instance causes similar to maritime 23 650 Provisions for amendment of informations in causes of admiralty and maritime jurisdiction 24 653 Stipulation by defendant with sureties in case of libel in personam 25 656 Contents of answer to allegations in libel 27 659 When same may be taken pro confesso 29 661 When oath or affirmation of either libellant or de- fendant, to an interrogatory may be dispensed with 33 665 To what exceptions to libel may be taken 36 667 When and how libel may be amended where answer alleges new facts 51 696 When and where filed, contents thereof, and pro- ceedings on filing same under limited liability act 54-7 705-10 Provisions as to proceedings by claimant of vessel or respondent proceeded against in personam to charge any other vessel contributing to same collision . . ■ • ^^ ^^2 920 INDEX LIBELLANT— Rule May be required by defendant to make personal answer upon oath to interrogatories in answer; proceedings on default of due answer 32 664 In admiralty suits, when deemed in default 39 671 LIMITED LIABILITY— Rules as to proceedings under the limited liability act S4-« 705-11 Rules to apply to the Circuit Courts where cases are pending on appeal from District Courts 58 711 MARINERS' WAGES— Suits for same, how prosecuted 13 631 Attachment in suits for, against party having pos- session of freight or other proceeds of property attached in proceedings in rem 38 670 MARITIME CAUSES— Contents of libel in instances causes 23 650 Provisions for amendment of libels in 24 653 Contents of answer in Circuit Court in 27 659 Where third party is permitted to intervene in suits in rem in 34 665 How stipulations in, are to be given and taken .... 35 667 When libellant deemed in default 30 662 Hypothecation, suits founded upon, how brought . . 17 639 MARSHAL— . To serve process 1 606 To take bail on a simple warrant of arrest in suits in personam 3 613 To serve warrant of arrest against ship, etc., in suits in rem 9 618 To levy execution in cases of final decree for pay- ment of money , 21 646 To make sales of property under decree, etc 41 674 When to take bail in suits in personam 47 692 MASTER— Proceedings against, for mariners' wages 13 631 Suits for damages by collision against 15 636 Suits upon a mere hypothecation of master in foreign port for moneys taken up for supplies, etc., how prosecuted 17 639 MATERIAL MEN— How they may proceed , . . 12 626 ADMIRALTY RULES 921 Rule Page MESNE PROCESS— See Process 1-2 606-9 MONITION— When to issue to third person in suits m rem 8 618 Provision for in petitory and possessory suits. . . j . . 20 644 NAVIGATION— Contents of informations and libels of information upon seizures for any breach of the revenue, navi- gation, or other laws of the United States 22 647 NECESSARIES— Suits founded on hypothecation by master for moneys taken up in foreign port for supplies, re- pairs, etc., how prosecuted 17 639 OATH— When oath or affirmation either of libellant or de- fendant, to an answer to an interrogatory may be dispensed with 33 665 Provisions as to oaths and suits in rem 26 657 Or affirmation of libellant required to interroga- tories at close of defendant's answer 32 664 Or affirmation of garnishee to answer in cases of foreign attachment, provisions respecting 37 668 Or affirmation to answer not necessary, where amount m dispute does not exceed $50.00 48 693 OBJECTION— May be taken by defendant by answer, to answer an allegation which would expose him to punish- ment for crime, etc 31 663 PART OWNERS— Nature of process in petitory and possessory smts between them 20 644 PENAL OPTENSE— See Crime. PENALTY— See Crime. PERISHABLE PROPERTY- ^^^ Provisions for sale of PETITIONS — When, where, and how filed under the limited lia. bility act, and prbvisicms thereunder a^' '"" lu 922 INDEX PETITORY SUITS— Rule Page Nature of process in : , 20 644 PILOTAGE— Suits for, how prosecuted 14 635 POSSESSORY SUITS— Nature of process in 20 644 PRACTICE— Provisions for, when not provided for by these rules . 46 689 PROCEEDS— Of property sold under decree, disposition of 41 674 Disposition of moneys resulting from proceeds of sale after payment into court. . 42 676 Proceedings by intervener respecting claim for de- livery to him of 43 677 PROCESS— When mesne process to issue from District Court. . . 1 606 By whom served 1 606 In what mesne process consists in suits in personam. 2 609 Nature of, and how and by whom served in suits in rem 9 618 Nature of process in petitory and possessory suits between part owners and adverse proprietors 20 644 Effect of defendant omitting or refusing to answer Ubel on return-day of proces.s, etc 29 661 Provisions for compulsory process in personam, against garnishee in cases of foreign attachment. . 37 668 PROOF OF CLAIMS— See Claims 55 708 RECORDS— On appeals from District to Circuit Courts, what to contain and what not to contain 52 697 REFERENCE— Provisions as to reference by court to commissioners 44 679 REGISTRY OF COURT— Proceeds of sale of property under decree to be paid mto 41 674 Disposition of moneys after they have been so paid into 42 676 Proceedings by intervenor respecting claim for de- livery to him of proceeds in, etc 43 677 ADMIRALTY RULES 9^3, REHEARING- j^„ p^^^ Provisions as to same when decree has been entered against defendant, by default 40 672 REPAIRS— Suits founded on hypothecation by master for moneys taken up in foreign port for supplies, repairs, etc., how prosecuted 17 639 RETURN— Of arrest 9 618 RETURN-DAY— Effect of defendant omitting or refusing to answer Ubel on return-day, etc .... , 29 661 REVENUE— Contents of informations and libels of information upon seizures for any breach of the revenue, navi- gation, or other laws of the United States 22 647 SALE— Of perishable articles, etc., provisions for 10 621 Proceedings as to sale of ship when arrested in suits in rem 11 622 Of property; by whom made, and disposition of pro- ceeds 41 674 Disposition of moneys resulting from proceeds of sale, after payment into court 42 676 SALVAGE— Suits for, how prosecuted 19 641 Attachment against party having possession of freight or other proceeds of property attached in proceedings in rem in salvage cases 38 670 SCANDAL— Provisions for exceptions to, in Ubel, etc. 36 667 SECURITY Provisions for, in petitory and possessory suitff 20 644 Provisions as to security to be given by respondent in cross-libel SEIZURES— , ,.^ , , . , Contents of informations and libels of mformation upon seizures for any breach of the revenue, navi- gation, or other laws of the United States 22 647 701 924 INDEX SERVICE— Rufe Pag« Of warrant of arrest against ship, etc., in suits in rem, how and by whom made 9 618 SHIP— Proceedings when ship is arrested in suits in rem .... 11 622 Proceedings against, in rem by material men 12 626 Proceedings against, in rem for mariners' wages 13 631 Suits for pilotage against 14 635 Suits for collision against IS 636 Suits against, how brought when founded upon a mere maritime hypothecation of master for moneys in a foreign port for supplies, repairs, etc. . 17 639. Arrest of, in petitory and possessory suits, provi- sions for 20 644 STIPULATION— See also Bonds. By defendant in case of libel in personam, provisions for 25 656 Provisions as to stipulation by claimant of property in suits in rem 26 657 To be given by intervenor in suits in rem; provisions respecting same 34 665 When given by intervenor, or on appeal, or in any other maritime or admiralty proceedings, how to. be given 35 667 SUITS IN PERSONAM— Nature of process in 2 609 Provisions for taking bail where a simple warrant of arrest issues, and proceedings are to be taken on the bond or stipulation given 3 613 Dissolving attachment in suits in personam 4 615 When and how bail may be reduced 6 617 New sureties may be required on hail bond 6 617 Amount for which warrant of arrest may issue 7 617 Suits for pilotage, against whom brought 14 635 Against master or owner for damages by collision, how prosecuted 15 636 Suits for assault or beating on the high seas in per- sonam, only 16 638 How brought wken founded upon a mere maritime hypothecation of master for moneys in a foreign port for supplies, "epairs, etc 17 639 Provisions in suits on bottomry bonds 18 641 Suits for salvage, how prosecuted 19 641 Provisions for stipulation on part of the defendant's sureties 25 656 ADMIRALTY RULES 925 SUITS IN PERSONAM-^on^mwed. H^e Page When bail is to be taken by marshal where simple warrant of arrest issues 47 ggg Imprisonment for debt abolished in certain cases... 47 692 Answer not to be verified where amount in dispute does not exceed $50.00 4g ggo Provisions as to proceedings by claimant of vessel or respondent proceeded against in personam to charge any other vessel contributing to same collision 59 712 SUITS IN REM— Proceedings when tackle, sails, apparel, etc., are in possession or custody of thiid person 8 618 Nature of process, and how served, and by whom ... 9 618 Proceedings when ship is arrested in suits in rem .... 11 622 Proceedings in suits against master or owner, by material men 12 626 Proceedings for mariner's wages 13 631 Against ship, etc., for pilotage 14 635 For damages by collision, how prosecuted 15 636 How brought when founded upon a mere maritime hypothecation of moneys in a foreign port for sup- plies, repairs, etc 17 639 Provisions for suits on bottomry bonds 18 641 For salvage, how prosecuted 19 641 How party claiming property shall verify claim .... 26 657 How third party is permitted to intervene 34 665 Provisions where freight or other proceeds attached are in the hands or possession of any party 38 670 Answer not to be verified where amount in dispute does not exceed $50.00 48 693 SUPPLIES— Suits founded on hypothecation of master for mon- eys taken up in foreign port for supplies, etc., how prosecuted 17 639 SURETIES— Provisions for stipulation by defendant with sureties in case of libel in personam 25 656 On a stipulation to be given by intervenor in suits in rem 34 665 SURPLUSAGE— Provisions for exceptions to hbel, etc., for 36 b07 926 INDEX TIME—, Rule Page For taking appeal from District to Circuit Courts ... 45 682 For rehearing after decree entered against defendant for default 40 672 Amending libel where answer alleges new facts 51 696 UNITED STATES— Contents of informations and libels of information upon seizures for any breach of the revenue, navi- gation, or other laws of the United States 22 647 WAGES— See Mariner's Wages 13-38 631-670 WARRANT— See Arrest and Attachment 7-9 617-618 WRIT OF EXECUTION— See Execution. R. 3-4, pp. 613-15; 21 646 INDEX FOR THE GENERAL ORDERS IN BANKRUPTCY PRESCRIBED BY THE SUPREME COURT OF THE UNITED STATES ACCOUNTS- R,i, p,,. Of marshal 19 720 Of referee 26 729 Advances for expenses may be repaid 10 723 Amendments 11 723 Appeals 36 733 Arbitration 33 731 Assignment of claim before proof 21 726 Attachment for failure to furnish schedule 9 722 APPEALS— In bankruptcy proceedings 36 733 ATTORNEY— Proceedings may be conducted by 4 720 To represent creditor, letter of 21 726 notice and orders may be served upon 4 720 Auction, sale of property to be by 18 725 Bankrupt may conduct proceedings in person 4 720 Blanks for process 3 720 CLAIMS— Assigned before proof 21 726 proved, transmission of to clerk 24 729 Of persons contingently liable ^ 21 726 Reexamination of 21 726 Compounding of 28 730 . Clerks, compensation of 35 732 Compensation to clerks, referees, and trustees 35 732 Composition, opposition to 32 731 Conduct of proceedings 4 720 Consolidation of petitions 7 721 Costs in contested adjudications 34 732 Court making first adjudication of bankruptcy retains jurisdiction of all proceedings 6 721 927 928 INDEX CREDITOR— Rule Page Mailing of notice to 21 726 Can only manage his individual interest 6 721 Creditors, special meeting of , 25 729 Debtor imprisoned , . . . 30 730 Debts, proof of 21 726 DEPOSITIONS— Forms of 21 726 To prove claims 21 726 DISCHARGE— Hearing of applications for 12 723 Petition for 31 731 Opposition to -. 32 731 DOCKET— What to contain 1 719 Name of attorney to be entered 4 ■ 720 Domicil of debtor, hearing to be at 6 721 Equity, proceedings in 37 734 Evidence, taking of 22 728 Expenses, indemnity for 10 723 Forms 38 734 General provisions 37 734 Habeas corpus, to produce imprisoned debtor 30 730 Imprisoned debtor 30 730 Indemnity for expenses 10 723 Inventory to be prepared by trustee 18 725 Involuntary bankruptcy, schedule in 9 722 Law, proceedings at.^ 37 734 Marshal, accounts of 19 726 Money deposited, payment of 29 730 JURISDICTION— Of Appellate Courts in bankruptcy causes — 735 notice- To trustee of his appointment 16 725 Of filing of proof of assignment , 21 726 May be served personally or on attorney 4 720 Opposition to discharge or composition 32 731 ORDER— i Of .referee 23 729 Of referee, review of 27 729 Shall contain name of party or attorney making mo- tion 4 720 GENERAL ORDERS IN BANKRUPTCY 929 PAPERS- R,,, p,^. Filed after reference 20 726 Indorsement and filing of 2 720 Partnership, proceedings in cases of 8 722 Payment of moneys deposited 29 730 PETITIONS— Frame of 5 720 Priority of 7 721 In different districts 6 721 For discharge 31 731 Priority of petitions 7 721 Procedure 37 734 Process 3 720 Proof of debts 21 726 PROPERTY— Sale of 18 725 Redemption of 28 730 Redemption of property 28 730 REFEREE— Accounts of 26 729 Compensation of 35 732 Duties of 12 723 Orders of 23 729 Report of trustee 17-18 725 Review by judge 27 729 SALE— Of property 18 725 Court may authorize private 18 725 Schedule in involuntary bankruptcy 9 722 Special meeting of creditors 25 729 Testimony, taking of 22 728 Transmission of proved claims to clerk 24 729 TRUSTEE— Appointment and removal of 13 724 Compensation of 35 732 Duties of ^l ™ '' No official or general ^^ ^^^ Notice to, of his appointment 16 725 Not appointed in certain cases 15 724 Shall deliver proofs to referee 21 726 Witnesses, examination of 53 19 29 10 57 21 57 21 57 21 63 19 37 13 IKDKK TO SUPREME COURT RULES From a. d, 1790 to a. d. 1852 Rule Page ABATEMENT ON DEATH 61 22 ABSTRACT OF CAUSE— What to contain R. 8, p. 3; R. 29, p. 10; To be furnished before argument R. 8, p. 3; When must be filed R. 8, p. 3; Number of copies to be filed R. 8, p. 3; How disposed of by clerk 57 Effect of not filing R, 8, p. 3; By whom printed 37 ADJOURNMENT— Day of, when announced 47 18 Within three days, no case will be taken up 47 18 ADMIRALTY CASES— New evidence in, how taken 27 8 Objections to evidence in, to be taken below 33 11 AFFIDAVITS— Amount in dispute may be shown by 13 4 For attachment to collect costs 21 7 To move for a certiorari 32 11 AFFIRMANCE— Costs on 45 17 Plaintiff to be charged for one copy of record 37 13 AFFIRMATION— Of counsellors and attorneys 6 2 ALLOTMENT— Of judges, 1812 24 7 930 SUPREME COURT RULES 931 1790-1852 AMOUNT IN DISPUTE- ^ule Page May be shown by affidavit 13 4 APPEAL— When to be docketed 43 15 On what terms plaintiff may docket, after first six days of the term 43 jg When plaintiff may not docket 43 is Not docketed within thirty days after beginning of term, cause will be continued 43 16 How may be dismissed, representatives of a deceased party not coming in 28 9 When defendant may have dismissed. .R. 30, p. 10; 43 16 APPELLANT— In what cases to docket cause and file record R. 19, p. 5; R. 30, p. 10; 43 15 Within what time to do same, R. 19, p. 5; R. 30, p. 10; 43 15 When may proceed ex parte R. 10, p. 3; 15 4 But two counsel can argue for 23 7 When may move for dismissal of a cause 28 9 APPEARANCE BY COUNSEL— By the filing of written argimient 44 16 When cause will be dismissed for want of R. 54, p. 20; 59 21 When to be made to subpoena 10 3 ARGUMENT— After what time, none will be heard 47 18 How many counsel may make, on each side 23 7 Length of, except on special leave 53 19 Not heard on Saturdays 50 18 Printed, will be received by court 40 14 Printed, filing of, an appearance 44 16 Printed, must be signed by attorney or counsel 51 19 Printed, when must be filed 56 20 Printed, when will not be received 58 21 ATTACHMENT— When wiU issue for costs 21 7 ATTORNEYS— Who may be admitted as 2 1 Can not practice as counsellors 3 1 Oath or affirmation of, on admission 6 2 Or counsel must sign printed arguments 51 19 ATTORNEY-GENERAL^ Of a state, when process served on 10 ^ 932 INDEX BAIL — Rule Page Motion to discharge from, how evidence taken on . . . 9 3 BILL OF EXCEPTIONS— Allowed by judges in courts below 38 13 Not to contain judges' charge in full 38 13 Matters of law only to be inserted 38 14 BOND— For costs, to whom given, and penalty of 37 13 BOOKS— Of law library, who may take, and terms 39 14 Of law library, penalty for not returning 39 14 Of law library, judges may take as they wish 39 14 Of court library, where to be put 48 18 Of court library, judges can only take 48 18 BRIEF— Printed, to be furnished before argument 29 10 Printed, when causes will not be received on 47 18 Printed, what to contain R. 8, p. 3; R. 29, p. 10; 53 19 CAUSES— When regarded as for trial at a term 19 5 When argued at first term, at option of defendant R. 16, p. 4; 43 16 When continued, at option of defendant, R. 16, p. 4; 43 16 WiU not be heard without a printed brief 29 10 WiU not be heard, except a complete record filed. .. . 31 11 On docket, when court commences to call 36 12 How many called each day 36 12 Go to bottom of calendar, if neither party ready .... 36 12 Not taken out of their order, except when 36 12 Will not be set down for a particular day 36 12 Called twice, goes over to next term 36 13 May be submitted on printed arguments 40 14 Within what time appellant to docket 43 15 When appellant can not docket 43 16 When defendant may docket or have dismissed 43 16 When defendant may move to have dismissed R. 28, p. 9; 43 16 When goes over to next term for delay in docketing . . 43 16 Will not be argued within three days of adjournment 47 18 When not received on printed briefs 47 18 When heard ex parte, in behalf of appellant R. 10, p. 3 ; 15 4 When heard ex parte, on behalf of defendant 19 6 When heard ex parte, in behalf of either R. 53, p. 20; 58 21 SUPREME COURT RULES 933 1790-1852 CERTIFICATE OF CLERK- j^^,^ p^ ^ To dismiss cause, what to contain 43^ ^6 CERTIORARI— In what cases awarded 32 11 Motions for, when and how made ,,,[, 32 n When not granted, except on special cause. ........ 32 U CHANCERY— Practice of England, how far adopted 7 2 Practice of England, may be altered as necessary. . . 7 2 CIRCUIT COURTS— Judgments of, when writ of error to first term of this ""'i'-t 43 15 Judgment reversed, to whom goes costs 22 7 May issue commissions in cases of further proof .... 25 8 May issue commissions to take evidence in admiralty cases 27 s Judges, allotment of 24 7 •Judges, when may send up original papers 26 8 Judges, what exceptions to allow 38 13 CIRCUITS— Allotment of judges for 24 7 CLERK— Appointment of John Tucker as 1 1 To keep his office at seat of government 1 1 Not to practice as counsel or attorney 1 1 Not to allow records to be taken, except with con- sent of court 12 4 Not to allow original records to be taken in any case. . 35 12 When responsible for records taken out of office 12 4 To take security from plaintiff for costs, in all cases. .37 13 May have attachment to collect costs 21 7 To have printed for the court fifteen copies of record . 37 13 To deliver one copy to each party 37 13 When to allow books to be taken from the library. ... 39 14 To keep a record thereof; and may require their re- turn 39 14 To preserve and record opinions of the court R. 41, p. 15; 42 15 In cases of dismissal, to send mandate to court below 45 17 To take charge of the books of the court 48 18 Not to permit any one, except the judges, to take them 48 18 To distribute copies of the "printed abstract" 57 21 934 INDEX CLERK'S CERTIFICATE— Rule Page To dismiss cause, what to contain 43 16 COMMISSIONS— For further proof, by whom issued 25 8 In admiralty cases, who may issue 27 8 In admiralty cases, terms and conditions of 27 9 CONTINUANCE OP CAUSE— When to next term R. 36, p. 12; 43 16 When at option of defendant R. 16, p. 4; 43 16 When on death of counsel 23 7 COSTS— Security for, from plaintiff, in all cases 37 13 Security for, to be by bond, or a deposit 37 13 Attachment for, on biU being served 21 7 To whom, in Circuit Court, upon reversal 22 7 For record, when each party charged with 37 13 On dismissal, to defendant, unless otherwise agreed . 45 , 17 On affirmance, to defendant, unless otherwise ordered 45 17 On reversal, to plaintiff, unless otherwise ordered. ... 45 17 To be inserted, with taxed items in mandate 45 17 Not allowed for or against Unite(^ States 45 17 None on dismissal for want of jurisdiction. 45 17 None on reversal for want of jurisdiction 45 17 When cause dismissed for want of appearance 54 20 When cause has been called at two terms and dis- missed 55 20 COUNSEL— Who may be admitted as 2 1 Oath or affirmation of 6 2 May be admitted as attorneys 14 4 To furnish a brief to the court 8 3 But two to argue on each side 23 7 May submit cause on printed arguments 40 14 Appearance of, by filing printed arguments 44 16 Or attorney must sign such arguments 51 19 Not to speak over two hours; without leave 53 19 WiU not be heard, unless printed abstract be first filed 53 19 COURT— Clerk to keep his office at seat of government 1 1 Process of, to be in the name of the president 5 2 To be furnished with statement and points 8 3 To be furnished with abstract, before argument 29 10 SUPREME COtfRT RULES 935 1790-1852 COURT — continued. ji^i^ P^ga May issue commissions for further proof 25 8 May issue commissions in admiralty cases 27 8 When original papers may be sent to 26 8 When commences to call the docket 36 12 Now many cases will call each day 36 12 Win decide causes on printed arguments 40 14 Opinions of, to be filed and recorded by the clerk R. 41, p. 15; 42 15 Opinions, originals to be delivered to the reporter .. . 42 15 When will not receive cases on printed briefs 47 18 When will announce time of adjournment 47 18 When will cease to hear further arguments 47 18 CROSS-INTERROGATORIES— On commissions in admiralty cases 27 9 To be filed in twenty (Jays after notice 27 9 DAMAGES— Interest a part thereof i 18 5 Rate of, when writ of error sued out for delay 17 5 Rate of, when there is a real controversy 18 5 To what time calculated, when given 20 6 DEATH OF PARTY— Abatement when suggested 61 22 How representatives may come in 28 9 DEFENDANT— Non-appearance of, on service of subpcena, appellant may proceed ex parte R. 10, p. 3; 15 4 When may appear and proceed to trial 16 4 When may have cause continued R. 16, p. 4; 43 16 Whenmaymovefordismissalof cause....R. 28, p. 9; 43 16 When may proceed ex parte 19 ^ But two counsel can argue for 23 DEPOSIT FOR COST^ When clerk may require ^' DEPOSITION— ,. ^ r u ■, Q s Evidence by, on motion to discharge from bail ..... » ^ In cases of further proof DIMINUTION OF RECORD— ^^ Certiorari for, how awarded 936 INDEX DISMISSAL— Eule Page Of cause, when defendant entitled to 43 16 Of cause, how effected 43 16 Of cause, representatives of deceased party not com- ing in 28 9 Of cause, when one record to be taxed against appel- lant: 37 13 Of cause, when both parties to pay for same 37 13 Of cause, costs on to defendant 45 17 Of cause, mandate to be sent to court below 45 17 Of cause, for want of appearance, and costs on 54 20 Of cause, after being twice called, and costs on ... . 55 20 DISTRICT COURTS— Judges of, what exceptions to allow 38 13 DISTRICT OF COLUMBIA— , Judgments in courts of, when may be heard, at first term of court, after rendition R. 19, p. 5; 43 15 DOCKET— When court commences to call 36 12 How many causes of called each day 36 12 When causes to go to foot of 36 12 Causes put at foot of, can not be taken up 36 13 When plaintiff to put causes on 43 15 When defendant may put causes on 43 16 When plaintiff may not put causes on 43 16 EQUITY CAUSES— All objections to evidence in, to be made in court be- low 33 11 EVIDENCE— On motion to discharge bail, how taken 9 3 New, in admiralty cases, how taken 27 8 Objections to, not allowed, unless made below 33 11 EX PARTE— When appellant may thus proceed R. 10, p. 3; 15 4 When defendant may thus proceed 19 5 FRIDAYS— What motions preferred 50 18 FURTHER PROOF- Taken by commission 25 8 GOVERNOR OF A STATE— When service of process on 10 3 SUPREME COURT RULES 937 1790-1852 HEARING OF CAUSE- Kuie p^ge Not without a printed brief 29 10 Not unless a complete record filed 31 U Will not be set down for a given day 36 12 When goes over to next term 36 13 May be by printed arguments 40 14 Not withii^ three days of adjournment 47 18 £a; parte on behalf of appellant R. 10, p. 3; 15 4 Ex parte on behalf of defendant 19 5 interest- To be computed as part of damages 18 5 INTERROGATORIES— On commissions in admiralty cases 27 9 When judgment affirmed 62 22 JUDGES— Allotment of, for the circuits, 1812 24 7 Of Circuit Court, may send up original papers 26 8 Of courts below, what exceptions to allow 38 13 Charge not to be inserted in bill of exceptions 38 13 To have free use of books in Ifl,w library 39 14 Alone to take books from court library 48 18 JUDGMENTS— Of Circuit Courts, when may be brought up to this court, first term after being rendered 43 15 Of courts in District of Columbia, when 19 6 Of Circuit Court, reversed, to whom costs below 22 7 Transcript of, for reporter 42 Damages on, how calculated 20 15 6 KING'S BENCH— Practice of, how far adopted ' ^ Practice of, may be altered ■ • • 7 2 Matters of, only to be inserted in bills of exceptions . . 38 13 MANDATE— ^. • , ks 17 To be sent to court below, on dismissal ^ j ' What the nature of, and why sent 45 17 Costs, with taxed items, to go with 45 -i^ MOTIONS— , , . . . ■ 4fi 17 To be reduced to writing and what to contam 4b i^ To discharge on bail, evidence in 938 INDEX MOTIONS — continued. Eule Page To substitute representatives of deceased party 28 9 For certiorari in case of diminution 32 11 To dismiss cause 43 16 What ones entitled to a preference, and when 60 19 NEW EVIDENCE— In admiralty causes, how taken 27 8 NON-APPEARANCE— Of defendant, to subpoena, effect of 10 3 Of defendant, to writ of error, effect of 15 4 Generally, effect of 54 20 NOTICE— Of interrogatories on commissions in admiralty 27 8 To file cross-interrogatories 27 9 To appear to subpoena 10 3 OATH— Of counsellors and attorneys 6 2 OBJECTIONS TO EVIDENCE— Must be taken in court below 33 11 OFFICE, CLERK'S— To be kept at seat of government 1 1 OPINIONS OF court- To be filed with the clerk 41 15 To be recorded, and when 42 15 Originals to be delivered to reporter 42 15 ORAL TESTIMONY— When may be given in open court 27 9 ORDERS— Defendant not appearing, to subpoena 10 3 To issue commission for further proof 25 8 To issue commission in admiralty and equity cases. . . 27 8 To dismiss or reverse writ of error or appeal, if repre- sentatives of deceased party do not appear 28 9 In such case, when, where, and how long to be printed 28 9 For certiorari on diminution 32 11 ORIGINAL PAPERS— When may be sent from court below 26 8 ORIGINAL RECORDS— Not be taken from clerk's office or court 35 12 SUPREME COURT RULES 939 1790-1852 PARTIES— „ , „ Rule Pago May show amount in dispute by affidavit 15 4 To give; security for costs 21 7 Attachments may issue against, for costs 21 7 To insert only matters of law in bills of exceptions. . 38 14 Not appearing at second term, cause dismissed 64 20 Death of, representatives may come in 28 9 PAYMENT OF COSTS— Attachment to compel 21 7 PLAINTIFF— May proceed ex parte, if defendant not appears on service of subpoena 10 3 May proceed ex parte, if defendant in error does not appear 15 4 When to file record and docket cause 43 15 Failing to file record, defendant may do so 43 16 But two counsel may argue for 23 7 May have record reversed, if representatives of de- ceased defendant do not come in 28 9 Liable to costs, on dismissal for want of appearance. . 54 20 Liable to costs, on dismissal for neglect to argue 55 20 POINTS— To be furnished the court 8 3 PRACTICE OF court- How far controlled by that of King's Bench, and chancery of England 7 2 PRESIDENT— Process of court to be in his name 5 2 PRINTED ABSTRACT— Twelve copies to be filed with clerk 67 When to be filed, and how disposed of 67 21 21 PRINTED ARGUMENTS— Causes may be submitted on '■ ■ • ■ 40 14 Filing of, an appearance 44 16 Must be signed by attorney or counsel 51 19 When must be filed 56 20 When will not be received ^8 21 PRINTED BRIEFS— After, when case will not be receiived on 47 18 940 INDEX PRINTED STATEMENT— Rule Page Twelve copies to be filed, and what to contain R. 8, p. 3; 57 21 When filed, and how disposed of R. 53, p. 19; 57 21 Effect of not filing R. 8, p. 3; R. 53, p. 19; 58 21 PRINTING RECORDS— Expense, how borne 37 13 PROCEDENDO— Process in nature of, when to issue 45 17 process- To be in the name of the president 5 2 Against a State, on whom to be served 10 3 To compel payment of costs 21 7 In nature of a procedendo to the court below 45 17 record— True copy of, to be sent on writ of error 11 3 When to be delivered, that cause may stand for trial in the com'se of the term 19 5 When so delivered, as that cause to be continued ... 19 5 Complete one must be filed, before argument 31 11 Certiorari in case of diminution of 32 11 Fifteen copies to be printed for court 37 13 Expense of printing same 37 13 One copy to be given to each party 37 13 When each party to pay half fees for a copy 37 13 When plaintiff may file 43 15 When defendant may file 43-62 16-22 When plaintiff may not file 43-63 16-22 When filed so that cause stands continued 43 16 RECORDS— When and how may be taken from clerk's office .... 12 4 Original, not to be taken 35 12 REPORTER— To use original opinions of the court 42 15 How long may retain the same 41 15 To have transcript of judgment or decree 42 15 REPRESENTATIVES— Of a deceased party, how may come in 28 9 Of a deceased party, how may be brought in 28 9 Of a deceased party, effect of not coming in 28 9 SUPREME COURT RULES 941 1790-1852 RETURN TO WRIT OP ERROR- p, , How made ^"'' ^»«« 10 3 REVERSAL— Of cause, if representatives do not come in 28 9 Of judgment or decree, costs on R. 22, p. 7; 45 17 Saturdays- No arguments heard on 5q jg seal- To be attached to return of writ of error n 3 SECURITY— For costs, in what to be 21 7 STATEMENT OF CASE— To be furnished the court 8 3 What must contain R. 29, p. 10; 53 19 Twelve copies to be filed 57 21 How disposed of 57 21 Consequence of not filing 53 19 SUBPCENA- When must be served 10 3 Effect of not appearing on service of 10 3 SUM IN DISPUTE— May be shown by affidavit 13 4 SURETIES FOR COSTS— Attachments may issue against 21 7 TIME— Service of subpoena 10 3 Within which plaintiff may file record 43 15 When plaintiff may not file record 43 16 When defendant may file record 43 16 To file cross-interrogatories in admiralty and equity cases 27 9 Of docketing writs of error and appeals 43 15 In which to file printed arguments 56 20 In which to file printed abstracts 57 21 TESTIMONY— When taken by commission R. 25, p. 8; 27 8 When oral in open court 27 9 Translations 60 21 942 INDEX TRIAL— Rule Page When at first term R. 16, p. 4; 19 5 When may be continued at option of defendant to next term r! 16, p. 4; R. 19, p. 5; 43 16 When goes over in any event 43 16 VALUE OF AMOUNT IN DISPUTE— May be determined by affidavit 13 4 VIVA VOCE TESTIMONY— When not allowed 9 3 When received 27 9 UNITED STATES— Costs not allowed for or against 45 17 WITNESSES— In admiralty cases, testimony of how taken 27 8 WRIT OF ERROR— Return to, how made 11 3 When to issue, that cause may be tried at first term . . 16 42 When issues so that cause is continued 16 4 Damages, when sued out for delay 17 5 Damages, when a real controversy 18 5 How dismissed, case of deceased party 28 9 How reversed, case of deceased party 28 9 When plaintiff may docket 43 15 When plaintiff may not docket 43 16 When defendant may docket 43 16 When defendant may have dismissed 43 16 Dismissal of, costs to defendant 45 17 Affirmance of, costs to defendant 45 17 Reversal of, costs to plaintiff 45 17 Dismissal of for want of appearance, plaintiff to pay costs 54 20 Dismissal of for failure to argue, plaintiff to pay costs 55 20 mDEX TO THE RULES OF THE SUPREME COURT Adopted at the January Teem, a. d. 1858 ABATEMENT- E^, cw Page Death of party does not cause in Supreme Court.... 15 1 31 Representative made party, when 15 i 31 Of appeal for want of appearance 15 2 32 ADJOURNMENT— Announced ten days prior to 28 38 ADMIRALTY— When further proof taken on appeal in 12 2 30 Objections to evidence in, not allowed 13 31 AFFIDAVIT— Must accompany motion for certiorari 14 31 AFFIRMANCE— Costs allowed to appellee, etc 24 1 36 Interest, how computed on 23 1 36 Damages, when given on 23 3 36 APPEAI^ Interest and damages on 23 2 36 APPELLEE— Right of to docket cause, etc 9 2 28 APPEARANCE— When time for extended for certain States and territories 9 3 29 Of representative in case of death of party 15 1 31 When action abates for want of 15 2 32 Cause dismissed on failure of, by plaintiff 16 32 Failure to make, by defendant, effect of 17 32 Effect when neither party makes an 18 32 After, motion to dismiss not heard without notice 31 39 943 944 INDEX ARGUMENT— Rule Clause Page When cause stands for 9 1 28 Case dismissed, when parties not prepared after two calls 19 32 Court will receive printed, when 20 1 33 Effect of fiUng printed 20 2 33 When oral argument presented 20 3 33 Brief not received after oral argument 20 3 33 Two counsel only will be heard 21 1 33-34 Restriction of length of, on oral 21 2 33-34 Effect of failure to file brief 21 3 33 Default in filing printed, effect of 21 5 33-35 Order of, opening and close 22 35 Cross-appeals must be argued together 22 35 No cause taken up for, within three days of adjournment 28 38 ATTORNEYS AND COUNSEL— Admission of, to practice 2 1 25 Form of oath to be taken 2 2 25 Printed arguments signed by 21 4 33 Copy of printed argument furnished-to 21 6 34 Two only to be heard on argument 21 1 33 Time allowed for argument 21 2 33 BILL OF EXCEPTIONS— Allowance of by circuit and district judges 4 26 BRIEFS— Not received after argument 20 3 33 When to be filed with clerk 21 3. 33 What to contain 21 3 33 To be signed 21 4 33 Size of 31(35) 41 CALIFORNIA— Extension of time in appeals and writs of error from 9 3 29 CERTIORARI— When awarded for diminution of record 14 31 When motions for, to be made 14 31 Facts on which motion based, verified by affi- davit 14 01 When not granted 14 31 CIRCUIT COURT— May order taking of testimony on commission . . 12 1 30 KXJLES OF THE SUPBEME COURT 945 Adopted A. D. 1858 CIRCUIT JUDGE— AUowance of bill of exceptions by ^"^ ""'"" "* 2'6 CLERK OF SUPREME COURT— Where to reside and keep his office 1 1 25 Shall not permit any original paper taken ; from office . ■ ^ To have charge of library, etc \,[ 7 1 27 Shall take bond for costs ' jq ^ 29 Fee of, for printing records 10 5 29 Shall furnish copies of records to printer 10 3 29 Fees to be charged by 10 4 29 Against whom to charge fees in case of dis- ^'^'^s^l 10 6 29 To issue mandate to court below 24 5 37 DeUver copy of opinion to reporter 25 1 37 To cause opinions of judges to be recorded 25 2 37 Must preserve original opinions 25 3 37 COMMISSIONS TO TAKE TESTIMONY— What court to issue 12 2 30 CONFERENCE-ROOM— Clerk of court has charge of 7 2 27 CONTINUANCE— Of causes on appeal. , 26 37 COSTS— Clerk must take security for 10 1 29 Of printing records, charged in expenses of court 10 2 29 Charged in case of dismissal 10 6 29 When attachment for may issue 10 7 29 On dismissal for want of appearance 18 32 Default at second term 19 32 GeneraUy 24 1 36 On affirmance, allowance of 24 2 36 On reversal, allowance of 24 3 36 Allowed in Supreme Court, inserted in mandate 24 6 37 United States exempt from liability for 24 4 36 COUNSELLORS— See Attohnets and Counsel. CROSS-APPEALS— Must be argued together 22 35 DAMAGES— Allowed on frivolous appeals 23 3 36 60 3 26 32 32 32 5 33 7 34 1 30 2 30 2 30 2 30 946 INDEX DEATH — ^ule Clause Page Of party does not abate suit 15 1 31 When on death of party action will abate .... 15 2 32 DEEDS, ETC.— Objection to must be taken in court below. .. . 13 31 DEFAULT— If defendant make, plaintiff may proceed ex parte 5 Dismissal of writ of error if defendant makes. 17 When defendant makes, plaintiff may proceed . . 16 Dismissal for non-appearance of both parties ... 18 In filing brief, effect of 21 Argument 21 DEPOSITIONS— To be taken on commission 12 Notice, with copies of interrogatories served ... 12 What court to issue, commission to take 12 Time of filing cross-interrogatories 12 DIMINUTION OF RECORD— Application for certiorari on 14 31 DISMISSAL— Of appeal for failure to docket cause 9 1 28 Who taxed with fee for copy in case of 10 5 29 When writ of error dismissed for non-appear- ance of plaintiff 16 32 For non-appearance of both parties at second term 18 32 Costs allowed on to defendant or appellee 24 1 36 In vacation by agreement of parties 29 38 DISTRICT JUDGE— Allowance of biU of exceptions by 4 26 DOCKET— Called on second day of term 26 Ten cases on for each day's hearing 26 Cases heard in advance of order 26 Order of cases on 26 Continuance of causes until next term 26 Cases heard together 30 DOCKETING CASES— By plaintiff in error or appellant 9 By defendant in error or appellee 9 37 37 37 37 37 39 1 28 2 28 RULES OF THE SUPREME COURT 947 Adopted A. D. 1858 EVIDENCE— r, , r., - Rule Clause Page When and how taken on order for further P™°f-. 12 1 30 In maritime cases, how new evidence taken 12 2 30 When deemed admitted 13 31 Objections to deeds, etc., not allowed 13 31 EXCEPTIONS— Bill of 4 26 EXHIBITS— In record objections to 13 31 FEES— Of clerk, security taken by bond 10 1 29 Clerk must charge th« legal for record 10 3 29 Attachment for, when to issue 10 7 29 Taxed on dismissal for want of jurisdiction .... 10 6 29 Taxed on affirmance, reversal, or dismissal. ... 10 5 29 FRIVOLOUS APPEAIr- Damages allowed on 23 3 36 Injunction in appeals under Equity Rule 63. . 30(34) 40 INTEREST— On affirming judgment, how computed 23 1 36 Same rule on affirming decree in equity 23 2 36 LAW LIBRARY— Use of books, regulation of 7 1 27 Clerk of court has charge of 7 2 27 MANDATE— On dismissal of suit, clerk to issue 24 5 37 Costs to be inserted in 24 6 37 On dismissal of cause in vacation 29 38 MARITIME CASES— Further proof in, how taken 12 2 30 MOTION-DAY— 27 38 MOTIONS— Must be in writing o ^o Day for hearing of 27 38 For certiorari supported by affidavit 14 31 When motion to be made 14 31 2 37 1 37 3 37 3 27 948 INDEX NEVADA R"'^ Clause Page Docket of cases on appeal from 9 3 29 NEW MEXICO— Docket of cases on appeal from 9 3 29 NOTICE— Of taking depositions in maritime cases 12 2 30 OATH— Of attorney or counsel 2 2 25 OPINIONS— Of court, recorded by clerk when 25 Duty of clerk respecting 25 Preservation of 25 Original papers, how sent up 8 OREGON— Docket of causes on appeal from 9 3 29 papers- How sent up on appeal 8 Translation of, when in foreign language 11 PARTIES— Death of, representative shall become 15 Death of, suggested, when cause abates 15 PLAINTIFF— No appearance of 16 32 POSTPONEMENT— To next term, after being called, when 26 37 PRACTICE— In Supreme Court, by what regulated 3 On death of party on appeal or writ of error. ... 15 PROCESS— In whose name to be 6 How served on a State 5 Subpcena, service on individual 6 RECORD— When to be filed 9 What to be filed as 8 Printed for use of court 10 Clerk to supervise printing of 10 1 27 30 1 31 2 32 26 1 31 1 26 2 26 3 26 1 28 2 27 2 29 3 29 KULES OF THE SUPREME COURT 949 Adopted A. D. 1838 RECORD— continued. Rule clause Page Distribution of printed copies 10 3 29 Fees for one copy only to be charged 10 4 29 Who entitled to copy of 10 5 29 When translations inserted in 11 30 Diminution of, certiorari upon 14 31 Opinions of court to be made of 25 2 37 Form and size of 31(35) 41 REPRESENTATIVES OF DECEASED PARTIES— Appearing 15 1 31 Not appearing 15 2 32 REPORTER— To receive copy of opinion of court 25 3 37 RETURN— Of writ of error, how to be made 8 Of original papers in Supreme Court, when. ... 8 What to accompany record 8 Complete record to be made 8 REVERSAL— Costs on judgment of 24 1 36 REVIVOR— How on death of party 15 1 31 SECOND TERM— Neither party ready for trial 19 32 SECURITY— For clerk's fees must be taken by clerk 10 1 29 STATE— How process served on 5 1 27 3 27 1 27 2 27 SERVICE— Of process, how served on a State 5 2 26 Of subpoena, time of 5 3 26 26 SUBPCENA— = o OR Must be served sixty days before return-day. . 5 d /o SUPERSEDEAS BONDS 32 39 SUPREME COURT CLERK— See Cleek. TRANSLATIONS- ,,.11 ^n Of documents in foreign language, supplied , . . H w 950 INDEX UNITED STATES— Rule Clause Page Exempt from liability for costs 24 4 36 UTAH— Docket of causes on appeal from 9 3 29 VACATION— Dismissal of causes in 29 38 VERIFICATION— Of application for certiorari 14 31 WASHINGTON— Docket of causes on appeal from 9 3 29 WRIT OF ERROR— Return of, how made, by whom 8 1 27 Will not be heard without complete record .... 8 2 27 When original papers, sent up, on 8 3 27 Return of 33 40 INDEX FOR MATTERS NOT INCLUDED IN OTHER INDEXES Page Decisions as to the Jurisdiction op the Supreme Court. . ... 43-40 Decisions as to the Practice op the Supreme Court . . 47-57 Sections 10 and 11 op the Act op March 3, 1911, c. 517, Circuit Court on Appeals Act .... . 201-202 Authorities on the Jurisdiction and Practice op the Circuit Court op Appeals . .... 203-210 Statutes Regulating the Jurisdiction op District Courts . . ..... 415 Authorities on the Jurisdiction and Practice op the District Courts . ... 415-430 Authorities on the Jurisdiction op Admiralty Courts . 605-606 Rules op the Supreme Court Relating to Appeals prom THE Court of Claims . 715-717 The General Orders in Bankruptcy . 719-734 Sections 24 and 25 op the Bankruptcy Act op July 1st, 1898, c. 171, POB Appeals and Reviews .... 735-736 The Judiciary Act op September 24th, 1789 . . 739-758 The Act op February 13th, 1911, to Diminish the Ex- pense OP Proceedings on Appeal, etc. . . 760-761 The Judicial Code 762-826 Forms • 827-843 Directions por Taking Writs op Error and Appeals and FOR Making up Records 844-849 951