aiortif U Ham Brliool ffiibtarg 
 
Cornell University Library 
 KF 8816.A2 1912 
 
 Federal court rules annot^J^lSi-Kifiifiiii' 
 
 3 1924 020 170 910 
 
The original of tiiis book is in 
 tine Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924020170910 
 
FEDERAL COURT RULES ANNOTATED 
 
 RULES OF PRACTICE 
 
 IN THE 
 
 United States, Circuit Court of Appeals 
 
 FOR THE 
 
 THIRD CIRCUIT 
 
 AND IN THE 
 
 United States District Court 
 
 FOR THE 
 
 Middle District of Pennsylvania 
 
 At Law and in Bankruptcy 
 With Annotations 
 
 By 
 
 R. W. ARCHBALD 
 
 Newark, N. J. 
 SONEY & SAGE 
 
 1912 
 
 17599 
 
Copyright, 1912, 
 By SONEY & SAGE 
 
TABLE OF CONTENTS. 
 
 Pages 
 
 Introduction to Court of Appeals Rules 3-4 
 
 Rules of Circuit Court of Appeals 5-68 
 
 Index to Court of Appeals Rules 69-76 
 
 Comparative table of Rules of Eastern and Middle Dis- 
 tricts 80-81 
 
 Comparative table of Rules of Western and Middle Dis- 
 tricts 81-82 
 
 Introduction to Middle District Rules 83-84 
 
 ■Rules of the Middle District 85-144 
 
 Index to Middle District Rules 145-157 
 
 Bankruptcy Rules 159-174 
 
 Index to Bankruptcy. Rules 175-178 
 
Middle District of Pennsylvania, w. 
 
 Ordered, that the Rules of Court of the Middle District of 
 Pennsylvania, including the Rules in Bankruptcy, as printed 
 by Soney & Sage, are hereby adopted as the authorized 
 edition of the Rules of Court of this District. 
 
 October 1, 1912. 
 
 CHARLES B. WITMER, 
 
 District Judge. 
 
INTRODUCTION. 
 
 The Circuit Court of Appeals of each circuit consists of 
 three judges, of whom two constitute a quorum (a) ; and is 
 to be made up from the Justice of the Supreme Court assigned 
 to the circuit, the Circuit Judges, and the several District 
 Judges of the circuit (b). The judges of the Commerce 
 Court may also be assigned as Circuit Judges to the Court 
 of Appeals of any circuit for service (c). 
 
 There are now four Circuit Judges in the second, seventh 
 and eighth circuits ; three in the first, third, fifth, sixth and 
 ninth; and two in the fourth. The attendance of the District 
 Judges on the Court of Appeals of their respective circuits 
 is conditioned by the statute on whether a full Court is made 
 up without them by the attendance of the Supreme Court 
 Justice assigned to the Circuit and the Circuit Judges, and 
 may be regulated by general or particular assignment. It is 
 governed in the fifth circuit by a standing order (d) ; as it is 
 also in practice in the third circuit; and possibly in the others. 
 The freedom with which the composition of the court may be 
 adjusted to meet any emergency is one of the great merits of 
 the system. It is competent for three District Judges, duly 
 designated, to hold a Circuit Court of Appeals (e). No judge 
 may sit in a case in which he sat in the Court below, and if 
 he does it vitiates the judgment (/). 
 
 The Third Judicial Circuit of the United States is made up 
 of the Eastern, Western, and Middle Districts of Pennsyl- 
 vania, the District of New Jersey and the District of Dela- 
 ware (g) ; and the Court of Appeals of the Circuit sits at 
 Philadelphia (h). There are two terms of court in each year, 
 beginning on the first Tuesday of March and the first Tuesday 
 of October. 
 
 The Circuit Judges in commission in the Third Circuit 
 at this time are Hon. George Gray of Wilmington, Delaware, 
 appointed by President McKinley in 1899; Hon. Joseph Buf- 
 fington of Pittsburg, Pennsylvania, appointed by President 
 
Roosevelt in 1906; and Hon. John B. McPherson of Philadel- 
 phia, Pennsylvania, appointed by President Taft in 191 2.* 
 
 The District Judges, in the order of their appointment, are 
 as follows: Hon. Edward G. Bradford, of the District of 
 Delaware, appointed by President McKinley in 1897; Hon. 
 James B. Holland, of the Eastern District of Pennsylvania, 
 appointed by President Roosevelt in 1904; Hon. Joseph Cross 
 of the District of New Jersey, appointed by President Roose- 
 velt in 1905; Hon. James S. Young, of the Western District 
 of Pennsylvania, appointed by President Roosevelt in 1908; 
 Hon. Charles P. Orr, of the Western District of Pennsylvania, 
 appointed by President Taft in 1909; Hon. John Rellstab, of 
 the District of New Jersey, appointed by President Taft in 
 1909; Hon. Charles B. Witmer, of the Middle District of 
 Pennsylvania, appointed by President Taft in 191 1 ; and Hon. 
 J. Whitaker Thompson of the Eastern District of Pennsylvania, 
 appointed by President Taft in 1912. 
 
 (o) Act March 3, 1911, Sect. 117. 36 Stat., 1131. 
 (6) Act March 3, 1891, Sect. 3. 26 Stat., 827. Act March 3, 1911, 
 Sect. 121. 36 Stat, 1 132. 
 
 (c) Act March 3, 191 1, Sect. 20S. 36 Stat., 1148. 
 (rf) 150 Fed. Ixxxv. 
 
 (e) Peters v. Hanger, 134 Fed., 586. 136 Fed., 181. See also Mc- 
 Knight V. Cramer Furniture Co., 189 Fed., 48. Kreplik v. Couch 
 Patents Co., 190 Fed., 565. 
 
 (f) American Construction Co. v. Jacksonville Railway, 148 U. S., 
 372. Moran v. Dillingham, 174 U. S., 153. 
 
 (g) Act March 3, 1911, Sect. 116. 36 Stat., 1131. 
 (h) Ibid, Sect. 126. 36 Stat, 1132. 
 
 * Hon. William M. Lanning, of Trenton, New Jersey, appointed by 
 President Taft in 1909, who was in office when the following Rules 
 of Court were adopted, died February 16, 1912, pending their prepara- 
 tion for publication. 
 
RULES (a) 
 
 OP THE 
 
 United States Circuit Court of Appeals 
 
 FOR THE 
 
 THIRD CIRCUIT. 
 
 Adopted in Open Court, June 16, 1891. 
 
 Revised January 31, 1910, to Talte Effect 
 
 IVIarch 1, 1910. 
 
 (a) The right to make rules of practice inheres in every Court. 8 
 Amer. & Eng. Encycl. Law, 2 Ed., p. 29. 11 Cycl., 740. i Rose Fed. 
 Proced., Sect. 801. The Circuit Courts of Appeal are also given the 
 specific power by statute. Act March 3, 1891, Sect. 2. 26 Stat, 826. 
 Act March 3, 1911, Sect. 122. 36 Stat., 1132. In pursuance of this 
 authority a set of rules applicable to all the circuits was originally 
 promulgated. 150 Fed., xxv-xxxvi ;_ and these form the basis of those 
 which are now in force in the various circuits with certain modifica- 
 tions. 150 Fed., xxxvii-cxxxviii. 188 Fed., v-xxviii. 193 Fed., i-xx. 2 
 Rose Fed. Proced. p. 1872-2040. 3 Foster's Fed. Prac, 2465-2507. They 
 are largely predicated upon the Rules of the Supreme Court, to be found 
 in 222 U. S., appendix. See also 2 Rose Fed. Proced., 1761-1778. 3 
 Foster's Fed. Prac, 2448-2464. As so promulgated they have the force 
 and effect of law to the extent that they are applicable. American 
 Graphophone Co. v. National Phonograph Co., 127 Fed., 349. United 
 States V. Barber Lumber Co., 169 Fed., 184. The Rules of the Third 
 Circuit, which make up the present collection, went into effect March 
 I, 1910, and have been revised down to the date of this publication. 
 Their arrangement under heads does not necessarily control their 
 construction. United States v. Cigars, 138 Fed., 166. The titles are 
 as fixed by the Court, except as otherwise indicated. 
 
R 1-2-3 COURT OF APPEALS RULES. 6 
 
 RULE I. NAME. 
 
 The court adopts "United States Circuit Court of Appeals 
 (a) for the Third Circuit" as the title of the court. 
 
 (a) This is the title imposed by the organic act creating these 
 Courts. Act March 3, 1891, Sect. 2. 26 Stat, 826. Act March 3, 
 1911, Sect. 117. 36 Stat, 1131. A defect in the title is not fatal to a 
 pleading but substantial accuracy in the designation of the Court 
 should be observed. 31 Cycl., 93, 94. 
 
 RULE 2. SEAL. 
 
 The seal shall contain the words "United States" on the 
 upper part of the outer edge; and the words "Circuit Court 
 of Appeals" on the lower part of the outer edge, running 
 from left to right; and the words "Third Circuit" (a) in two 
 lines in the centre, ^yith a dash beneath. 
 
 (o) Except in the designation of the number of the Circuit the 
 seal in all the Circuits is the same. 
 
 RULE 3. TERMS. 
 
 The terms of this court shall commence and be held on the 
 first Tuesday of March and the first Tuesday of October in 
 each year, at the city of Philadelphia. 
 
 The terms in the several Circuits are as follows : 
 
 First Circuit; one term annually at Boston, Mass., on the first Tues- 
 day of October, with stated sessions on the first Tuesday of every 
 month thereafter. 150 Fed., xxxvii. 
 
 Second Circuit; one term annually at New York on the third Tues- 
 day of October. 150 Fed. xlix. 
 
 Third Circuit ; two terms annually at Philadelphia, Pa., on the first 
 Tuesday of March and the first Tuesday of October. 
 
 Fourth Circuit; three terms a year, at Richmond, Va., on the first 
 Tuesday of February, May and November; with special sessions on 
 the second Tuesday of every month, in which there is no regular ses- 
 sion. 193 Fed., V. 
 
7 COURT OF APPEALS RULES. R 4 
 
 Fifth Circuit; at Atlanta, Ga., on the first Monday of October; at 
 Montgomery, Ala., on the third Monday of October; at Forth Worth, 
 Texas, on the first Monday of November; and at New Orleans, La., 
 on the third Monday of November, 150 Fed., Ixxvii. 
 
 Sixth Circuit; one term annually at Cincinnati, Ohio, on the Tues- 
 day after the first Monday of October, with adjourned sessions on the 
 Tuesday following the first Monday of each month thereafter, except- 
 ing August and September. 150 Fed., Ixxxvii. 
 
 Seventh Circuit; one term annually at Chicago, 111., on the first Tues- 
 day of October divided into three sessions to begin on the first Tuesday 
 of October, January and May respectively. 150 Fed., xcviii. 
 
 Eighth Circuit; three terms annually, at St. Paul, Minn., on the first 
 Monday of May; at Denver, Col., on the first Monday of September; 
 and at St. Louis, Mo., on the first Monday of December. 188 Fed. v. 
 
 Ninth Circuit ; at Seattle, Wash., on the second Monday of September ; 
 at Portland Ore., on the third Monday of September ; and at San Fran- 
 cisco, Cal., on the first Monday of October, with adjourned sessions on 
 the first Monday of each month thereafter. 150 Fed., cxxxiv, cxxxv. 
 
 Writs of error and appeals from Alaska are heard at San Francisco, 
 Portland or Seattle, according as the trial Court shall determine; sub- 
 ject however to stipulation otherwise by the attorneys. Act March 3, 
 191 1, Sect. 135. 36 Stat, 1 135. 
 
 The terms so fixed in the various circuits are in part controlled by 
 statute. Act March 3, 1911, Sect. 126, et seq. 36 Stat, 1132. 
 
 RULE 4. QUORUM. 
 
 I. If, at any term, a quorum (a) does not attend on any 
 day appointed for holding it, any judge who does attend may 
 adjourn the court from time to time (b), or, in the absence 
 of any judge, the clerk (c) may adjourn the court from day 
 to day. If, during a term, after a quorum has assembled, less 
 than that number attend on any day, any judge attending may 
 adjourn the court from day to day until there is a quorum, or 
 may adjourn without day, and, in the absence of all the 
 judges, the clerk may adjourn the court from day to day. 
 
 [C. C. A. Rule 4, Sect, i, in force in all the Circuits.] 
 
 (o) Any two of the judges competent to sit in the Court of Appeals 
 constitute a quorum. Act March 3, igii. Sect. 117. 36 Stat, 1131. 
 But no judge before whom the cause or question may have been 
 tried or heard in the Court below may sit in the Court of Appeals on 
 the trial or hearing of such cause or question. Ibid. Sect. 120. 36 
 Stat, 1 132. Where this is not observed it vitiates the proceedings. 
 Morgan v. Dillingham, 174 U. S., 153- But this would not seem to 
 apply to a mere ministerial act not involving discretion or judg- 
 ment. 17 Amer. & Eng. Encycl. Law, 2 Ed., 744. 
 
 (&) This rule is in line with the authority conferred by statute on 
 the judges of the Supreme Court Rev. Stat. Sect. 685, 686. Act 
 March 3, 1911, Sect 231, 232. 36 Stat., 1156. But it does not seem to 
 have been directly extended to the Courts of Appeal. 
 
R 5 COURT OF APPEALS RULES. 8 
 
 (c) The delegation of authority to the clerk may be questioned, the 
 function in its nature being judicial. State v. McBain, 102 Wisconsin, 
 431. Wight V. Wallbaum, 39 111., 554. In re Terrill, 52 Kansas, 29. 
 
 2. Any judge attending when less than a quorum is present 
 may 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. 
 
 [C. C. A. Rule 4, Sect. 2, in force in all the circuits.] 
 
 RULE 5. CLERK (a). 
 
 1. The clerk's office shall be kept in the City of Philadel- 
 phia (b). 
 
 (o) The clerk is appointed by the Court and exercises the saine 
 powers and performs the same duties in regard to all matters within 
 his jurisdiction as are exercised and performed by the clerk of the 
 Supreme Court, so far as the same may be applicable. Act March 3, 
 191 1, Sect. 124. 36 Stat., 1 132. He is authorized to appoint, with the 
 approval of the Court, such number of deputies as the Court may 
 deem necessary, who are removable at pleasure with the approval of 
 the Court; and in case of his death continue in office, unless removed, 
 performing his duties until a clerk has been appointed and qualified. 
 Ibid, Sect., 125. 
 
 (6) The clerks' offices in the various circuits are as follows: First 
 Circuit at Boston, Mass.; Second Circuit at New York, N. Y. ; Third 
 Circuit at Philadelphia, Pa. ; Fourth Circuit at Richmond, Va. ; Fifth 
 Circuit at New Orleans, La. ; Sixth Circuit at Cincinnati, Ohio ; Sev- 
 enth Circuit at Chicago, 111. ; Eighth Circuit at St. Lous, Mo. ; and 
 Ninth Circuit at San Francisco, Cal. 
 
 2. The clerk shall not practice either as attorney or 
 counsellor in this court or in any other court while he shall 
 continue to be clerk of this court (a). 
 
 [S. C. Rule I, Sect. i. C. C. A. Rule 5, Sect. 2, in force 
 in all the circuits.] 
 
 (a) 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 
 Sup'reme Court of the United States, shall act as a solicitor, proctor, 
 attorney or counsellor in any cause depending in any of said Courts 
 or in any district for which he is acting as such officer under penalty 
 of being stricken from the rolls. Act March 3, 191 1, Sects. 273, 274. 
 36 Stat., 1 164. 
 
 3. He shall, before he enters on the execution of his 
 office, take an oath in the form prescribed by section 794 of the 
 Revised Statutes, and shall give bond in a sum to be fixed, and 
 with sureties to be approved by the court, faithfully to discharge 
 the duties of his office and seasonably to record the decrees, 
 judgments, and determinations of the court (a). A copy of 
 
9 COURT OF APPEALS RULES. R 6 
 
 such bond shall be entered on the journal of the court, and 
 the bond shall be deposited for safe keeping as the court may 
 direct (b). 
 
 [C. C. A. Rule 5, Sect. 3, in force in all the circuits.] 
 
 _ (o) _ The bond of the clerk is available to a private suitor to indem- 
 nify him for failure by the clerk to perform the duties devolving upon 
 him, as by the refusal to issue a process ordered. United States v. 
 Bell, 127 Fed., 1002. 135 Fed., 336. 
 
 (&) The production of the bond with the approval of the Court 
 thereon is a sufficient prima facie authentication in a suit brought to 
 enforce the same. Hartz v. Commonwealth, i Grant (Pa.), 359. Where 
 'the bond is lost, it may be proved by the entries on the record. Harvey 
 v. Thomas, 10 Watts, 63. Boyd v. Commonwealth, 36 Pa., 355. 
 
 4. He 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 (a). ■ 
 
 [S. C. Rule I, Sect. 2. C. C. A. Rule 5, Sect. 4, in force 
 in all the circuits.] 
 
 (a) This corresponds with the English practice. Taylor Evid., Sect. 
 1532. Private persons have no right to remove public records or papers 
 from the office or files where they belong ; when permission is given to 
 do so, it is a matter of favor and not of right. French v. Neal, 24 
 Pick. (Mass.), 55. Sternberger v. McSween, 14 S. Car., 35. A record 
 may be proved by a compared or officially certified copy. 24 Amer. & 
 Eng. Encycl. Law, 25 Ed. 198. And instead of removing the originals, 
 copies should be taken where they will do. Federal Chemical Co. v. 
 Green, 33 Ky. Law Rep., 671. no S. W., 859. Seay v. Yarborough, 94 
 N. C, 291. The original may sometimes be necessary, as in case of 
 perjury or forgery. Taylor Evid., Sect. 1535 ; in which case leave will 
 be granted as a matter of right. Anon, i Ves. Jr., 152. Jervis v. White, 
 8 Ves., 313. Keenan v. Boylan, i Sch. & Lef., 232. Stratford v. Greene, 
 I Ball & Beat, 296. But otherwise, by reason of the danger of loss or 
 mutilation, a record should not be removed. Taylor Evid., Sect. 1534. 
 Where material to be produced, a subpoena duces tecum to the cus- 
 todian is the proper means. Fox v. Jones, 7 B. & C, 732. Dunham 
 V. Chicago, 55 III., 357. Dickinson v. Kingsbury, 8 Cal. App., 179. 
 q6 Pacf, 329. 
 
 RULE 6. MARSHAL, CRIER AND OTHER 
 OFFICERS. 
 
 I. The marshal (a) and crier (b) shall be in attendance 
 during the sessions of the court, with such number of bailiffs 
 and messengers as the court may, from time to time, order. 
 
 [C. C. A. Rule 6, in force in all the circuits.] 
 
 (o) Originally each of the Courts of Appeal had a marshal of its 
 own appointed by the court. Act March 3, 1891, Sect. 2. 26 Stat., 
 826. But this was repealed, and the marshal of the district in which 
 the court is held is now made the marshal of the Court. Act July 16, 
 
R 7 COURT OF APPEALS RULES. 10 
 
 1892, Sect I. 27 Stat., 222. Act March 3, 1911, Sect. 123. 36 Stat., 
 1 132. 
 
 (&) Criers and bailiffs are officers of the court. United States v. 
 McCave, 129 Fed., 708. They are entitled to three dollars a day for 
 each day they attend under the order of the court, whether the court 
 is opened or not. Ibid. Act March 3, 1905. 33 Stat., 1259- 
 
 RULE 7. ATTORNEYS AND COUNSELLORS. 
 
 I. All attoi^eys and counsellors admitted to practice in the 
 Supreme Court of the United States, or in any Circuit Court 
 of the United States, shall become attorneys and counsellors in^ 
 this court (a), on taking an oath or affirmation in the form 
 prescribed by Rule 2 of the Supreme Court of the United States 
 (b) and on subscribing the roll (c), but no fee shall be charged 
 therefor (d) ; and all attorneys and counsellors of the Circuit 
 Courts of the United States for the Third Circuit, shall be 
 attorneys and counsellors of this court without taking any 
 further oath. 
 
 [C. C. A. Rule 7, in force, with modifications, in all the 
 circuits.] 
 
 (a) The admission of an attorney is a judicial act. The Legisla- 
 ture may prescribe the necessary qualifications, but cannot otherwise 
 control it. Ex parte Secombe, 19 How., 9. Ex parte Garland, 4 Wall., 
 333. Brackenridge's Case, i Serg. & Rawle, 187. Splane's Petition, 123 
 Pa., 527. Manning v. French, 149 Mass., 391. In re Cooper, 22 N. Y., 67. 
 
 Attorneys are officers of the court, but are not officers of the United 
 States. Ex parte Garland, 4 Wall., ' 333. Savings Bank v. Ward, 100 
 U. S., 19s. 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 respec- 
 tively are permitted to manage and conduct catises therein. Rev. Stat., 
 Sect. 747. Women are eligible to practice in the Supreme Court. Act 
 Feb. IS, 1879. 20 Stat, 292. The clerk is prohibited from practicing 
 in any Court (Rule S supra) ; and the assistant or deputy clerks and 
 the marshal and deputy marshals, in any cause depending in the 
 Court of Appeals. Act March 3, 1911, Sects. 273, 274. .36 Stat., 1164. 
 
 (&) The form of oath in the Supreme Court is as follows : 
 
 "I, , do swear (or affirm), that I will demean my- 
 self as an attorney and counsellor of this Court uprightly and accord- 
 ing to law ; and that I will support the Constitution of the United 
 States." S. C. Rule 2, Sect 2. 2 Rose Fed. Proced^, 1761. 
 
 (c) See generally I Tidd Prac, 71. The admission of an attorney 
 to practice must be proved by the record, which is primarily the roll 
 where his name is entered. Foster v. Cale, i Strange, 76. And it may 
 also be shown by a book into which the names are copied alphabetically 
 therefrom. Rex v. Crossley, 2 Esp., 526. Humphreys v. Harvey, i 
 Bingh. N. C, 62. _ Hence the judgment, when an attorney is disbarred, 
 is that he be stricken from the rolls. Foster v. Cale, i Strange, 76. 
 Humphreys v. Harvey, i Bingh. N. C, 62. Per Park J. Where an 
 attorney, for proper reasons, has changed his name, the roll may be 
 
1 1 COURT OF APPEALS RULES. R 8-9 
 
 changed to correspond. In re James, 5 Exch., 310. In re Dearden. 
 Ibid, 740. Re Matthews, 16 Beav., 245. Enrollment cannot be entered 
 nunc pro tunc, where it is required by statute before beginning prac- 
 tice. Ex parte Fellows, 3 111. (2 Scam.), 369. 
 
 (d) In the fourth circuit, by rule of court, there is a fee of $5 ; 
 and in the fifth and sixth a fee of $10. For the admission of attorneys 
 in the District Courts the clerk, by statute, is limited to a charge of 
 $1. Act June 28, 1902. 32 Stat., 476. By the construction of the At- 
 torney General's Office, this includes the certificate issued by the clerk. 
 
 RULE 8. PRACTICE. 
 
 I. The practice shall be the same as in the Supreme Court 
 of the United States, as far as the same shall be applicable. 
 
 [C. C. A. Rule 8, in force in the same form in all the cir- 
 ciiits.] 
 
 The various Circuit Courts of Appeals Rules are predicated upon 
 and closely follow those of the Supreme Court, which furnish a guide 
 when the Circuit Court of Appeals Rules themselves are silent. The 
 state practice conformity act is limited to the practice and proceedings 
 in the trial court, and has nothing to do with proceedings on appeal 
 or preparatory thereto. Gillum v. Stewart, 112 Fed., 30. Francisco 
 V. Chicago & Albany R. R., 149 Fed., 354. Ghost v. United States, 
 168 Fed., 841. 
 
 RULE 9. PROCESS. 
 
 I. All process (a) of this court shall be in the name of the 
 President of the United States, and shall be in like form, {h) 
 and tested in the same manner as process of the Supreme 
 Court. 
 
 [S. C. Rule 5, Sect. i. C. C. A. Rule 9, in force without 
 modification in all the circuits.] 
 
 (a) All process must be under the seal of the Court and signed 
 by the clerk; Rev. Stat. Sect. 911; and bear teste from the date of its 
 issue. Rev. Stat. Sect. 912. In these respects the state practice does 
 not control. Gillum v. Stewart, 112 Fed., 30. The return is governed 
 by Rule 14, Sect. 6, infra. Writs of error returnable to the Circuit 
 Court of Appeals may be issued as well by the clerk of the District 
 Court under its seal as by the clerk of the Court of Appeals. Rev. 
 Stat. Sect. 1004. Act January 22, 1912. 37 Stat., — . Massina v. 
 Cavazos, 6 Wall., 355, 357. Sheppard v. Wilson, S How., 210. North- 
 ern Pacific R. R. v. Amato, 49 Fed., 881, 882. But they must be attested 
 in the name of the Chief Justice, and not of the District Judge. Long 
 v. Farmers' State Bank, 147 Fed., 360. 
 
 A defective writ may be amended, a mistake in the teste and return 
 corrected, and the want of a seal supplied. Rev. Stat. Sects. 954, 1005. 
 Texas & Pacific R. R. v. Kirk, iii U. S., 486. It has been held, how- 
 ever, that there must be something by which to amend. Dwight v. 
 Merritt, 4 Fed., 614. Brown v. Pond, S Fed., 30, yy. A motion to dis- 
 miss on the ground of defects in the writ is too late two days before 
 the argument, after the defendant in error has filed a brief and taken 
 issue on the assignments. Long v. Farmers' State Bank, 147 Fed., 360. 
 
R 10 COURT OF APPEALS RULES. 12 
 
 The Court of Appeals cannot issue a writ of prohibition as original 
 and independent process, but only in aid of its appellate jurisdiction. 
 Zell V. Judges, 149 Fed., 86. And the same is true of mandamus. 
 United States v. Judges, 85 Fed., 177, 179; Barber Asphalt Co. v. Mor- 
 ris, 132 Fed., 945; McClellan v. Garland, 217 U. S., 268, 279; Covington & 
 Cincinnati Bridge Co. v. Hager, 203 U. S., 109; and habeas corpus. 
 Whitney v. Dick, 202 U. S., 132. In ex parte Crawford, 154 Fed., 769, 
 a case of habeas corpus, the question was not raised. 
 
 (6) For form of writ of error see 2 Loveland's Fed. Forms, No. 
 131 1 ; and for form of citation see Ibid, No. 1317. The parties should 
 be correctly described in the writ as they are to appear, and be styled 
 in the Appellate Court as well as the way they appear in the Court below. 
 Massina v. CaVazos, 6 Wall., 355-361. If a writ of error designates the 
 parties as plaintiff and defendant, following their position in the Court 
 below, while it is a clerical mistake, it does not affect the right to 
 prosecute the proceedings. Hackfeld v. United States, 141 Fed., 9. 
 
 RULE 10. BILL OF EXCEPTIONS (a). 
 
 I. The judges of the circuit and district courts shall not 
 allow any general exception to the whole of the charge to the 
 jury in a civil or a criminal trial at common law {b), nor shall 
 a series of. exceptions be allowed which produces the same 
 result (c). But the party excepting shall state distinctly and 
 separately the several matters in such charge to which he 
 excepts, and only such matters shall be included in the bill of 
 exceptions and allowed by the court. , Exceptions to the charge 
 or to the judge's action upon the requests for instruction shall 
 be taken immediately on the conclusion of the charge before 
 the jury retire (d), shall be specified in writing or dictated to 
 the stenographer, and shall be specific and not general {e). 
 
 [S. C. Rule 4, Sect. i. C. C. A. Rule 10, Sect, i, in force 
 
 in substance in all the circuits.] 
 « 
 
 (a) For the form of a bill of exceptions and what it should con- 
 tain and when and how it is to be settled, see District Court Rules 
 44, 45, 46, and notes, infra, p. 106. Also 2 Rose Fed. Proced., Sect. 
 1932; and I Loveland Fed. Forms, Nos. 138 and 139. 
 
 The evidence in an action at law is only brought into the record by 
 a bill of exceptions. Suydam v. Williamson, 20 How., 427, 433. Eng- 
 land V. Gebhardt, 112 U. S., 502. And the same is true of the rul- 
 ings of the court upon the admission or rejection of evidence and the 
 instructions to the jury. Storm v. United States, 94 U. S., 76, 81. 
 Claassen v. United States, 142 U. S., 140, 147. Newport News Co. v. 
 Pace, 158 U. S., 36. A ruling of the trial court can only be reviewed 
 on appeal where it has been challenged by an exception. Potter v. 
 United States, 122 Fed., 49. 
 
 Evidence not contained in the bill of exceptions will not be consid- 
 ered. Lee Won Jeong v. United States, 145 Fed., 512. But it may be 
 included in the bill by appropriate reference over to other parts of 
 the record where it is found. Jones v. Buckell, 104 U. S., 554, 556. 
 
13 COURT OF APPEALS RULES. R lo-n 
 
 The bill of exceptions should contain the rulings of the court excepted 
 to and so much of the testimony as is necessary to explain the bearing 
 of these rulings on the issues involved, and should be confined to this 
 and not brmg in superfluous or irrelevant matters. Lincoln v. Claflin, 
 7 Wall., 132, 136. Laber v. Cooper, Ibid, 565. The Francis Wright, 
 105 U. S., 381, 389. Block V. Darling, 140 U. S., 234. Newport News 
 Railway v. Yount, 136 Fed., 589. 
 
 No exceptions to rulings at the trial can be considered unless they 
 were taken at the time, and were also embodied in a formal bill of 
 exceptions presented to the judge at the same term or within a fur- 
 ther time allowed by order of court entered at the term; by standing 
 rule of court; or by consent of parties. And save under very extraor- 
 dinary circumstances they must be allowed by the judge and filed 
 with the clerk during the same term. After the term has expired with- 
 out the_ court's control over the case being reserved by standing rule 
 or special order, and especially after a writ of error has been taken, 
 all authority of the court to allow a bill of exceptions, then presented, 
 or to alter or amend one already allowed and field, is at an end Jen- 
 nings v. Phil., Bait. & Wash. R. R., 218 U. S., 255. 
 
 Extraordinary circumstances, however, will excuse the failure to sign 
 a bill of exceptions at the same term. Koewing v. Wilder, 126 Fed., 472 ; 
 and such circumstances exist where the exhibits were mislaid without 
 fault or negligence of the plaintiff in error and not found until after the 
 term had expired; Pittsburgh Gas & Coke Co. v. Goff-Kirby Coal Co., 
 151 Fed., 466; or where the stenographer is unable to transcribe his 
 notes within the time fixed for settling the bill. Dalton v. Gunnison, 165 
 Fed., 873; or the judge who tried the case was unable by reason of 
 illness to sign the bill. Roberts v. Bennett, 135 Fed., 748. But these 
 extenuating facts should be certified, if possible, by the trial judge. 
 Pittsburgh Gas & Coke Co. v. Goff-Kirby Coal Co., 151 Fed., 466. 
 Jones v. Grover & Baker Sewing Machine Co., 131 U. S., cl. 
 Michigan Ins. Bank v. Eldred, 143 U. S., 293. A bill of exceptions 
 must be signed by the trial judge. That his initials are at the foot 
 of it is not enough. Origet v. United States, 125 U. S., 240. United 
 States ex rel Kinney v. United States Fidelity & Guaranty Co., 222 
 U. S., 283. It will not be regarded if it is not signed. Kjiight v. 
 Illinois Central R. R., 180 Fed., 368. Nor can the failure to sign be 
 supplied by an attached certificate by the judge that it had been settled 
 and signed within the time allowed by law. Oxford & Coast Line R. R. 
 V. Union Bank, 153 Fed., 723 ; nor by a stipulation of counsel that the 
 bill is correct. Malony v. Adsit, 175 U. S., 281. Nor will a new and 
 amended bill be allowed to be filed after the case has been argued, par- 
 ticularly where no good reason is shown why the original was not 
 complete. Pittsburg Gas & Coke Co. v. Goff-Kirby Coal Co., 151 Fed., 
 466. Nor can a bill be allowed nunc pro tunc after the term where 
 control of the case has not been reserved by order or rule. Reader v. 
 Haggin, 160 Fed., 909. But the pendency of a rule for a new trial ex- 
 tends the time within which to settle a bill. Kentucky Distilleries Co. 
 V. Lillard, 160 Fed., 34. 
 
 (6) Where the case is tried to the Court without a jury and special 
 findings are made, such special findings become part of the record, 
 and their sufficiency to support the judgment may be determined with- 
 out an exception and without a bill. Chicago, Rock Island & Pacific 
 R. R. V. Barrett, 190 Fed., 118. But where there is a general finding 
 and no bill of exceptions taken, the only question is whether the plead- 
 ings support the findings and judgment. Marinette Saw Mill Co. v. 
 
R lo-n COURT OF APPEALS RULES. 14 
 
 Scofield, 174 Fed., 562. Fellman v. Royal Ins. Co., 185 Fed., 689. 
 Jackson v. Mutual Life Ins. Co., 186 Fed., 447. 
 
 (c) The whole of the charge is not to be made the subject of a 
 bill. Phoenix Life Ins. Co. v. Raddin, 120 U. S., 183. Block v. Dar- 
 ling, 140 U. S., 234. The rule is mandatory and cannot be disregarded 
 by the trial judge. Price v. Pankhurst, 53 Fed., 312. The ground of 
 an exception must be stated at the time in order that the Court shall 
 have its attention directed to the error alleged to be committed and be 
 able to correct it. Merchants Ins. Co. v. Buckner, no Fed., 345. Por- 
 ter V. Buckley, 147 Fed., 140. Aetna Indemnity Co. v. Farmers' Nat. 
 Bank, 169 Fed., 737, 745. 
 
 (rf) The fact that exception was taken to the charge before the 
 jury had retired must appear in the record in order to have the excep- 
 tion considered. Sheppard v. Wilson, 6 How., 260. Phelps v. Mayer, 
 15 How., 160. Mann v. Dempster, 179 Fed., 837. Star Co. v. Madden, 
 188 Fed., 910. This is not a mere formal or technical provision, but 
 is in the interest of justice in order that there may be opportunity for 
 correction if the Court is advised of the need of it, in time. Phelps 
 v. Mayer, 15 How., 160. A rule of the trial court, which permits of 
 exceptions to the charge after the jury have retired, against the settled 
 policy of the Federal Courts, will be regarded as perinitting this 
 course only where it is in the interest of justice, and to_ avoid the con- 
 fusing of the jury, or where instructions have been given in the ab- 
 sence of counsel. It will not be regarded as permitting exceptions to be 
 generally taken in this manner. Montana Mining Co. v. St. Louis Min- 
 ing & Milling Co., 147 Fed., 897. But where the Court permitted 
 the jury to retire before the party had an opportunity to take exceptions, 
 this action may be made the subject of a valid exception and ground 
 for reversal. Mann v. Dempster, 179 Fed., 837. Berwind-White Coal 
 Co. V. Firment, 170 Fed., 151. Western Union Tel. Co. v. Baker, 85 Fed., 
 690. In the absence also of a rule to the contrary it would seem to be 
 enough that exceptions to the refusal of the Court to give instructions 
 requested were noted at the trial in open court, even though it was after 
 the jury had retired. Gandia v. Pettingill, 222 U. S., 452, 459. 
 
 («) A general exception to .the Court's instructions and to each 
 and every part thereof is insufficient. Baggs v. Martin, 108 Fed., 33. 
 Block V. Darling, 140 U. S., 234. Jones v. East Tennessee, &c. R. R., 
 IS7 U. S., 682. So also is an exception, to so much of the charge "as 
 requires the evidence to show that there was an intention to deceive." 
 Phoenix Assur. Co. v. Lucker, "jy Fed., 243; or to the charge of the 
 Court, so far as the instructions are inconsistent with the request for 
 rulings made. Partridge v. Boston & Maine R. R., 184 Fed., 211. 
 Nor is a general exception to the charge, that it erroneously sub- 
 mitted the case under a Federal Statute which was not applicable, 
 sufficient to sutain assignments based on the differences in liability 
 between the state and the federal law. Erie R. R. v. Kennedy, 191 
 Fed., 332. A general exception also to the refusal of a series of in- 
 structions will not be considered if any one of them is sound. Beaver 
 V. Taylor, 93 U. S., 46, 54. Thiede v. Utah, 159 U. S., 510, 520. Hodge 
 V. Chicago & Alton Railway, 121 Fed., 48. Union Pacific R. R. v. 
 Thomas, 152 Fed., 365. Nor can the refusal of a motion for a directed 
 verdict be assigned for error unless the attention of the trial court is 
 called to the grounds on which it was asked. Adams v. Shirk, 104 
 Fed., 54. O'Halloran v. McGuirk, 167 Fed., 493. Louis. & Nash. R. 
 R. V. Womack, 173 Fed., 752, 759. Choctaw, Okla. & Gulf R. R. v. 
 Jackson, 192, Fed., 792. 
 
15 COURT OF APPEALS RULES. R n 
 
 2. Exceptions to the admission or rejection of evidence 
 shall be specific and not general: ('o) , and the bill of exceptions 
 to such admission or rejection shall contain only so much 
 of the evidence admitted or offered and rejected as is neces- 
 sary for the presentation and decision of the questions saved 
 for review. Unless there be saved a question which requires 
 the consideration of all the evidence, a bill of exceptions con- 
 taining all of it shall not be allowed (b). 
 
 [S. C. Rule 4, Sect. 2. C. C. A. Rule lo, Sect. 2, in fourth 
 and seventh circuits. There is apparently nothing to corre- 
 spond with this rule in any of the other circuits.] 
 
 (o) Exceptions to the ruling of the trial court with respect to the 
 reception or rejection of evidence are necessary in order to have the 
 ruling reviewed. National Bank v. Schufelt, 145 Fed., 509. An ex- 
 ception to the admission of evidence will not be considered where it 
 is general or fails to show the ground of the objection. Burton v. 
 Driggs, 20 Wall., 125. Toplitz v. Hedden, 146 U. S., 252. Railroad Co. 
 V. Hellenthal, 88 Fed., 116. Merchants' Ins. Co. v. Buckner, no Fed. 
 345. Davidson S. S. Co. v. United States, 142 Fed., 315. Erie ,R. R. 
 V. Schomer, 171 Fed., 798. Pioneer S. S. Co. v. Jenkins, 189 Fed., 312. 
 An objection to a question as "immaterial, incompetent and irrelevant'' 
 is not sufficient, as being too general. Shandrew v. Chicago, St. Paul 
 & Milwaukee R. R., 142 Fed., 320. So a recital in a record, "excepted 
 to, admitted, exception noted," does not show a proper and timely 
 objection, following the answer to a question. Atlantic Coast Line v. 
 Linstedt, 184 Fed., 36. 
 
 (&) Where a non-suit is entered or a judgment non obstante vere- 
 dicto rendered on a point reserved under the Pennsylvania practice 
 (Act April 22, 1905, P. L. (Pa.), 286), all of the evidence is necessarily 
 involved and must therefore be contained in the bill of exceptions. 
 An assignment that there was no evidence to support the judgment 
 presents a question of law which can not be reviewed unless first 
 passed upon by the trial court by some appropriate action. Keeley v. 
 Ophir Hill Mining Co., 169 Fed., 598. Jackson v. Mutual Life Ins. 
 Co., 186 Fed., 447. 
 
 RULE II. ASSIGNMENTS OF ERROR (a). 
 I. The plaintiff in error or appellant shall file (b) with the 
 clerk of the court below, with his petition for the writ of error 
 or appeal, his assignments of error (c), as required by section 
 997 of the Revised Statutes, which shall set out separately 
 and particularly each error asserted and intended to be urged 
 (d). When the error alleged is to the admission or the re- 
 jection of evidence, the assignment shall quote the full sub- 
 stance of the evidence admitted or rejected (e) ; when the error 
 alleged is to the charge of the court, the assignment shall set 
 cut the part referred to totidem verbis (/), whether it be in 
 instructions given or in instructions refused ; when the error 
 
R II COURT OF APPEALS RULES. 16 
 
 alleged is based on the trial court's refusal to enter a judgment 
 non obstante veredicto (g) for the plaintiff in error on the 
 whole record, the assignment shall state the reasons presented 
 to the trial court for the entry of such judgment; when the 
 error alleged is to a ruling upon the report of a master or 
 referee, the assignment shall state the exception to the report 
 and the action of the court upon it. Such assignments of error 
 shall form part of the transcript of the record and be printed 
 with it. When error is not so assigned, counsel will not be 
 heard, except at the request of the court, and errors not as- 
 signed according to this rule will be disregarded. The court, 
 at its option, however, may notice a plain error not assigned 
 (h). 
 
 [S. C. Rule 35, Sect i. C. C. A. Rule ii in force in sub- 
 stance in all the circuits.] 
 
 (a) Assignments of error are required both on appeal and writ of 
 error. Randolph v. Allen, 73 Fed., 23 ; and in a bankruptcy appeal 
 the same as any other. Flickinger v. First Nat. Bank, 14S Fed., 162. 
 They are also required on an appeal in admiralty, even though the case 
 to a certain extent is heard de novo. Cook v. Smith, 187 Fed., 538. 
 The assignments should be entitled in the trial Court and not the 
 Court of Appeals. Church Cooperage Co. v. Pinkney, 170 Fed., 266. 
 
 In preparing assignments of error the rules should be strictly ob- 
 served. Walton V. Wild Goose Mining Co., 123 Fed., 209. An appeal 
 may be dismissed for failure to comply with the rules with regard to 
 assignments of error and briefs. Moline Trust Co. & Savings Bank v. 
 Wylie, 149 Fed., 734. An assignment of error cannot be used to bring 
 up questions which the record of the Covirt below does not show were 
 raised. Canal & Claiborne St. R. R. v. Hart, 114 U. S., 654, 663. 
 Neither will assignments of error be considered which are based on 
 evidence not contained in the bill of exceptions although printed in 
 the record. Lee Won Jeong v. United States, 145 Fed., 512. The 
 verdict of a jury in an equity case being advisory merely, assignments 
 of error based on the refusal of instructions will not be entertained. 
 McKinley Mining Co. v. Alaska Mining Co., 183 U. S., 563. See fur- 
 ther 2 Rose Fed. Proced., Sect. 193 1 and notes. 
 
 (6) Assignments of error must be drawn up and filed. It is not 
 enough to insert them in the briefs. Realty Co. v. Rudolph, 217 U. S., 
 547. Briscoe v. Rudolph, 221 U. S., 547. Stillwagon v. Bait. & Ohio 
 R. R., IS9 Fed., 97. Aetna Indemnity Co. v. Crowe Coal Co., 154 
 Fed., S4S. 
 
 (c) The filing of an assignment of errors before or at the time of 
 the allowance of a writ of error or appeal is indispensable under this 
 rule; see also Rule 14, Sect. 6 infra; and where it is not so filed the 
 writ of error or appeal will be dismissed. Dufour v. Lang, 54 Fed., 
 913. Simpson v. First Nat. Bank, 129 Fed., 257. Lockman v. Lang, 
 132 Fed., I. An assignment of errors is filed with the petition, within 
 the meaning of the rule, where the errors complained of are incorpo- 
 rated in the petition for appeal and the petition is then filed with the 
 clerk. Central Trust Co. v. Continental Trust Co., 86 Fed., 517; or 
 where they are filed at the same time with the petition and the order 
 
17 COURT OF APPEALS RULES. R ii-n 
 
 allowing the appeal. Copper River Mining Co. v. McClellan, 138 Fed., 
 333- 
 
 The reasons for the rule are (i) that the opposing counsel and the 
 appellate court may be informed of the questions to be discussed; and 
 (2) where a writ of error is applied for, that the judge, who allows 
 the writ may be advised whether it ought to issue. Simpson v. First 
 Nat. Bank, 129 Fed., 257. The right to an appeal, however, is absolute 
 and its allowance when applied for imperative, the only question to be 
 considered being the sufficiency of the security offered. Pullman 
 Palace-Car Co. v. Central Transportation Co., 71 Fed., 809. Simp- 
 son V. First Nat. Bank, 129 Fed., 257. No formal allowance of an 
 appeal therefore is necessary, the acceptance of security and the is- 
 suing of a citation being enough. Sage v. Railroad , Co., 96 U. S., 712. 
 Hence the assignment of errors in case of an appeal is in time if filed 
 before the security, by which the appeal is perfected, is approved. 
 And where an appeal is allowed on condition that certain security be 
 given, the filing of an assignment of errors at the same time with the 
 filing of an approval of the required bond is a sufficient compliance 
 with the rule. Simpson v. First Nat. Bank, 129 Fed., 257. Lockman 
 v. Lang, 132 Fed., i. Additional assignments after the appeal has been 
 perfected by service of the citation form no- part of the record and 
 will not be considered. Mast v. Superior Drill Co., 154 Fed., 45. 
 Cross assignments are not allowed. Rogers v. Penobscot Mining Co., 
 154 Fed., 606. O'Neil v. Wolcott Mining Co., 174 Fed., 527. Midland 
 Valley R. R. v. Fulgham, 181 Fed., 91. 
 
 (d) An assignment that the court erred in refusing to charge as 
 requested in certain numbered points does not comply with the rule. 
 Empire State Cattle Co. v. Atchison, Topeka & Santa Fe R. R., 147 
 Fed., 457. Neither is an assignment sufficient, that the court erred 
 in entering a decree for the appellee and in not sustaining a cross 
 bill. The Myrtie M. Ross, 160 Fed., 19. Nor that the court erred in 
 dismissing the bill, denying an injunction, and refusing an account. 
 Walter Baker Co. v. Gray, 192 Fed., 921, 929. An assignment that 
 there was no evidence to support the judgment presents a question 
 of law which cannot be reviewed unless presented to and passed upon 
 by the trial court. Keeley v. Ophir Hill Mining Co., 169 Fed., 598. 
 Jackson v. Mutual Life Ins. Co., 186 Fed., 447. An action tried on 
 one theory in the court below will not be allowed to be presented on 
 another in the appellate court. Hatcher v. North Western Insurance 
 Co., 184 Fed., 23. Bort v. McCutchen, 187 Fed., 798. 
 
 (e) Where the assignment is to the admission or rejection of evi- 
 dence, the evidence received or the question or ofifer of evidence re- 
 jected must be incorporated in the assignment. Railroad Co. v. Smith, 
 21 Wall., 25s, 261. Buckstaff v. Russell, 151 U. S., 626. A reference 
 over to the bill of exceptions is not enough. . Atlas Distilling Co. v. 
 Rheinstrom, 86 Fed., 244. Gallot v. United States, 87 Fed., 446. An 
 assignment that the Court erred in overruling defendant's offer of a 
 certain letter from H. to G. without setting out the letter does not 
 comply with the rule. Crosby v. Emerson, 142 Fed., 713. Nor is it 
 sufficient to simply identify an exhibit by number. North Western 
 Steam Boiler Co. v. Great Lake Engineering Works, 181 Fed., 38. In 
 case of the exclusion of an answer to a particular question in a deposi- 
 tion the answer or the full substance of it must be set out. Shauer v. 
 Alterton, 151 U. S., 607. Buckstaff v. Russell, 151 U. S., 626, 636. 
 Where error is assigned to the refusal to admit evidence or allow a 
 witness to answer questions, the evidence which it was proposed to 
 introduce or which the questions were intended to elicit should be set 
 
R 12 COURT OF APPEALS RULES. 18 
 
 forth. United States v. Indian, &c. District, 85 Fed., 928. Turner v. 
 United States, 66 Fed., 289. American Nat. Bank v. National Wall 
 Paper Co., "jy Fed., 85. But where the question rejected is proper in 
 form and apparently calculated to elicit evidence which is relevant to 
 the issue or favorable to the party in whose behalf it is propounded, 
 error may be assigned on its rejection without more. Buckstaff v. 
 Russell, 151 U. S., 626, 636. 
 
 (/) Garrett v. Pope Motor Car Co., 168 Fed., 905. 
 
 {g) The practice with regard to entering judgment non obstante 
 veredicto in accordance with the Pennsylvania Statute obtains in the 
 Federal Courts of that State. Keiper v. Equitable Life Assur. Soc, IS9 
 Fed., 206. Smith v. Jones, 181 Fed., 819. Cf. Missouri K. & T. R. R. 
 V. Collier, 157 Fed,, 347. But to entitle the party to a review, binding 
 instructions must be asked. Philadelphia v. Bilyeu, 36 Pa. Super. Ct., 
 562. Missouri K. & T. R. R. v. Collier, 157 Fed., 347. And there must 
 be an exception to the ruling of the Court entering judgment notwith- 
 standing the verdict. Hatcher v. North Western Insurance Co., 184 
 Fed., 23. Where a judgment non obstante has been reversed the Court 
 may grant a new trial instead of entering a final judgment. Western 
 Bank Note Co. v. Slentz, 188 Fed., 57. Sloan v. Phila. & Read. R. R., 
 23s Pa., iss. 
 
 (A) The Court will not depart from the rule to notice a technical 
 or immaterial error. Atchison, Topeka & Santa Fe R. R. v. Mulligan, 
 67 Fed., 569. National Ace. Soc. v. Spiro, 78 Fed., 774. The error 
 must be convincing and controlling to be noticed when not assigned. 
 Mast V. Superior Drill Co., 154 Fed., 45. But a palpable error, the cor- 
 rection of which is necessary to the administration of justice, will be 
 noted without an assignment. Baltimore & Ohio R. R. v. McCune, 174 
 Fed., 991. A defect in jurisdiction, such as want of diversity of citizen- 
 ship, which cannot be waived, will be noticed without an assignment; 
 although not those which cannot be, such as a lack of proper service' 
 Rogers V. Penobscot Mining Co., 154 Fed., 606. Morrison v. Burnette, 
 Ibid, 617. Stillwagon v. Baltimore & Ohio R. R., 159 Fed., 97. Hare 
 V. Birkenfield, 181 Fed., 825. So where the case is tried to the Court 
 without a jury, whether a special finding is sufficient to support the 
 judgment is of such controlling character that the Court will, notice it, 
 sua sponte. Chicago, Rock Island & Pacific R. R. v. Barrett 100 
 Fed., 118. ' ^ 
 
 RULE 12. OBJECTIONS TO EVIDENCE IN THE 
 
 RECORD. 
 
 I. In all cases of equity or admiralty jurisdiction, heard in 
 this court, no objection shall be allowed to be taken to the 
 admissibility of any deposition, deed, grant, exhibit, or trans- 
 lation 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. 
 
 [S. C. Rule 13. C. C. A. Rule 12, in force in the same 
 form in all the circuits.] 
 
 Exceptions cannot be taken for the first time in the Court of Appeals 
 to matters appearing in the record as sent up; such as depositions 
 
19 . COURT OF APPEALS RULES. R 13 
 
 (Mechanics' Bank v. Seton, i Pet., 299, 307. Howard v. Stillwell Mfg. 
 Co., 139 U. S., 199, 205. San Pedro Canon Co. v. United States, 146 
 U. S., 120, 136) ; deeds (Mitchel v. United States, 9 Pet., 711) ; or 
 the report of a master or referee (Canal Co. v. Gordon, 6 Wall., 561. 
 Lumber Co. v. Buchtel, loi U. S., 633). And the party as a rule will 
 be confined to the objections made at the time. Hinde v. Longworth, 
 II Wheat., 209. The objections also must be specific and not vague. 
 Thomas v. Lawson, 21 How., 331, 337. 
 
 RULE 13. SUPERSEDEAS AND COST BONDS. 
 
 I. Supersedeas bonds (a) in the circuit and district courts 
 must be taken, with good and sufficient security (b), that the 
 plaintiff in error or appellant shall prosecute his writ or appeal 
 to effect (c), and answer all damages and costs if he fail to 
 make his plea good {d). Such indemnity where the judgment 
 or decree is for the recovery of money (e) not otherwise se- 
 cured (f)j must be for the whole amount of the judgment 
 or decree, including just damages for delay (g), and costs 
 (A) and interest on the appeal; but in all suits where the 
 property in controversy necessarily follows the suit, as in 
 real actions (i) and replevin, and in suits on mortgages (/), 
 or where the property is in the custody of the marshal under 
 admiralty process, or where the proceeds thereof, or a bond 
 for the value thereof, is in the custody of the court, indemnity 
 in all such cases will be required only 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 (k). 
 
 [S. C. Rule 29. C. C. A. Rule 13, Sect, i, in force in all 
 the circuits. Supreme Court Rule 29, according to Kountze v. 
 Omaha Hotel Co., 107 U. S. 378, 388, was formulated after 
 the decision in Rubber Co. v. Goodyear, 6 Wall., 153.] 
 
 (a) I. A supersedeas is a statutory and not a natural right, and 
 is therefore obtained only upon strict compliance with the prescribed 
 conditions. Sage v. Central R. R., 93 U. S., 412, 417. It operates only 
 in favor of those parties who have applied for and obtained it. Ex 
 parte French, ico U. S., i. A writ of error does not operate as a 
 supersedeas unless a copy of the writ for the opposite party is filed in 
 the clerk's office within sixty days after the entering of judgment, 
 Sundays excluded. Act Feb. 18, 1875, 18 Stat., 318. Kitchen v. Ran- 
 dolph, 93 U. S., 86. Foster v. Kansas, 112 U. S., 201. And an appeal 
 being subject to the same regulations (R. S. Sect. 1012), it must be 
 perfected by the entry of security within the same period. Kitchen v. 
 Randolph, 93 U. S., 86. 
 
 When the proper steps have been taken a writ of error or appeal 
 operates as a supersedeas as a matter of law. Kitchen v. Randolph, 93 
 U. S., 86, 88. Goddard v. Ordway, 94 U. S., 672. Hovey v. McDonald, 
 109 U. S., 150, 160. The only function of the judge in that connec- 
 
R 13-n COURT OF APPEALS RULES. 20 
 
 tion is to determine the amount and sufficiency of the security to be 
 required. McCourt v. Singers-Bigger, 150 Fed., 102. But when such 
 steps have not been talcen it is beyond the power of the Appellate 
 Court or of the court of first instance to give the writ of error or appeal 
 the character of a superseadeas. Sage v. Central R. R., 93 U. S., 417. 
 Peugh V. Davis, no U. S., 227. New England R. R. v. Hyde, loi Fed., 
 397. Logan v.. Goodwin, loi Fed., 654. Robinson v. Furber, 189 Fed., 
 918. Nor can this be effected by a nunc pro tunc order, except where 
 the delay was the act of the Court, and no injustice will be done. Sage 
 V. Central R. R., 93 U. S., 4i7- 
 
 2. The sixty days within which the proper steps must be taken to 
 make the writ of error or appeal a supersedeas is to be computed 
 from the date of the judgment to be reviewed. Slaughter-House Cases, 
 10 Wall, 291. Wurts v. Hoagland, 105 U. S., 701. Sundays are ex- 
 cluded in the computation. Where therefore a decree was entered 
 March 29, and the appeal bond was not approved until May 31, and not 
 filed with the clerk until June I, it was nevertheless in time. Danville 
 v. Brown, 128 U. S., 503. And where the judgment or decree is that 
 of the highest court of a State, and is required by the State law to be 
 returned to a lower court for execution, the sixty days begin to run 
 only from the return of the case to such lower court. Slaughter-House 
 Cases, ID Wall., 291. The time in any event is suspended, pending an 
 application for a rehearing or a vacation or setting aside of the judg- 
 ment or decree, whereby until disposed of, it does not take final form 
 for the purpose of a writ of error or appeal. Kingman v. Western 
 Mfg. Co., 170 U. S., 67s. And where a first appeal fails by reason of 
 the clerk not having sent up the record in season, and a second appeal 
 is taken within the six months limited by the statute, the Court of 
 Appeals may permit a supersedeas bond to be given after the expira- 
 tion of sixty days from the rendition of judgment. Sutherland v. 
 Pearce, 186 Fed., 787. But a stay granted for the purpose of affording 
 opportunity to apply to the Supreme Court for a certiorari will not 
 operate to extend the sixty days. Title, Guaranty & Surety Co. v. 
 United States, 222, U. S., 401. 
 
 It is to be noted, however, with regard to the exclusion of Sun- 
 days, that this does not apply to the six months given by the statute 
 within which a writ of error or appeal must be taken, so that if the 
 last day falls on Sunday an appeal taken on Monday is too late. John- 
 son V. Meyers, S4 Fed., 417. Meyer v. Hot Springs Improvement Co., 
 i6g Fed., 628. 
 
 3. In cases where a writ of error may be a supersedeas eKecution 
 shall not issue until the expiration of ten days after the judgment has 
 been entered. Act Feb. 18, 1875, 18 Stat., 318. And Sundays are ex- 
 cluded in the computation, the same as in the case of the sixty days 
 within which to obtain a supersedeas. Danville v. Brown, 128 U. S., 
 503. Danielson v. Northwestern Fuel Co., 55 Fed., 49. This does not 
 apply, however, to the judgment of a State Court. Doyle v. Wisconsin, 
 94 U. S., so. The ten days begin to run from the date of the entry 
 of judgment and not from when the same was signed by the judge. 
 Commissioners v. Gorman, 19 Wall., 661. Where, however, a decision 
 was announced, but before a decree could be entered, it had to be 
 settled and signed by the Court, it is not until after that, that the 
 time begins to run. Silsby v. Foote, 20 How. 290. But where a decree 
 was entered dismissing the bill, the running of the time will not be 
 deferred by mere delay in taxing up and entering a decree for the 
 costs. Fowler v. Hamill, 139 U. S., 549. 
 
21 COURT OF APPEALS RULES. R 13-n 
 
 Where the ten days have expired when execution issued, a super- 
 sedeas subsequently obtained only operates to stay proceedings from 
 that time on. It cannot interfere with what has been already done. 
 Commissioners v. Gorman, 19 Wall., 661. 
 
 (&) The security must be approved by the judge who fixed the 
 amount required and signed the citation. Gay v. Hudson River Power 
 Co., 190 Fed., 812, 820. 
 
 The right of the judge allowing the appeal to increase the bond after 
 the jurisdiction of the appellate court has attached by its approval 
 may be doubted. Butchers' Assoc, v. Slaughter House Co., i Woods, 
 SO. But the order of approval may be annulled the next day after a 
 supersedeas has been allowed, within the time when the court had a 
 right to refuse or grant it, the security being found insufficient. 
 Black v. Zacharie, 3 How., 483. So, too, while the case is still in the 
 grasp of the court an order granting a supersedeas may be vacated. 
 Timolat v. Philadelphia Pneumatic Tool Co., 130 Fed., 903. The ap- 
 pellate court may always be appealed to for the purpose of modifying 
 the stay or increasing the bond when it is no longer sufficient. Rubber 
 Co. v. Goodyear, 6 Wall., 153, 156. French v. Shoemaker, 12 Wall., 
 86, 99. Jerome v. McCarter, 21 Wall., 17, 31. Martin v. Hazard 
 Powder Co., 93 U. S., 302. WiUiams v. Clafiin, 103 U. S., 753. Har- 
 wood v. Dieckerhoff, 117 U. S., 200. Mexican Construction Co. v. 
 Reusens, 118, U. S., 49, 53. But a motion to increase the amount of 
 a supersedeas bond must be addressed to the appellate court and not 
 to the court of first instance. Clarke v. Eureka Co. Bank, 131 Fed., 
 145- 
 
 (c) This means prosecuting the appeal with success. Conimon- 
 weath V. Lenhart, 233 Pa., 526. Crane v. Buckley, 203 U. S., 441, 447. 
 And where therefore the appellant succeeded in having the time with- 
 in vvhich payment should be made in order to prevent a foreclosure 
 extended on appeal, the sureties on the appeal bond were not liable 
 for use and occupation during the time for which it was so extended. 
 Ibid. But the bail on appeal are liable for an unpaid fine, which the 
 defendant was sentenced to pay in addition to imprisonment, even 
 where after affirmance the defendant surrenders himself and goes to 
 jail. Commonwealth v. Lenhart, 233 Pa., 526. The terms of the bail 
 bond required on appeal in criminal cases as prescribed by Rule 15 
 infra, would seem to exonerate the sureties from payment of costs. 
 
 (d) If a writ of error is non-prossed for failure to justify, the 
 bail are not liable. Tilden v. Worrell, 30 Pa., 272. But they are, where 
 there is a non pros on any other grounds. Mechling v. Merchants' 
 Bank, 3 Walker (Pa.), 466. 
 
 Where judgment is reversed on the writ of error on which the super- 
 sedeas bond in suit was given, the sureties do not become liable by an 
 affirmance on a subsequent writ. Bank v. Cowperthwaite, i Wilcox 
 (Pa.), 273. 
 
 (e) A judgment for the recovery of money is one which adjudges 
 the defendant either individually or in a representative capacity to pay 
 a specific sum. Fuller v. Aylesworth, 75 Fed., 694. 
 
 (f) A judgment is to be regarded as "'otherwise secured" within 
 the meaning of the rule, where, by reason of a lien on the property 
 secured to the plaintifif otherwise than by the judgnient, or by reason 
 of the actual custody of property liable to satisfy the claims asserted, 
 the court has the means of enforcing the judgment by subjecting 
 specific property thereto. Louisville & Nashville R. R. v. Pope, 74 
 Fed., I. 
 
R 13-n COURT OF APPEALS RULES. 22 
 
 (g) An appeal bond operative as a supersedeas and conditioned as 
 required by the rule covers not only the money decree appealed from, 
 but also damages for the delay and costs. American Surety Co. v. 
 North Packing Co., 178 Fed., 810. In a criminal case it covers the 
 fine. Commonwealth v. Lenhart, 233 Pa., 526. But probably not the 
 costs. See Rule 15, infra. 
 
 (h) The security required is security to answer all damages and 
 costs. Hence the bond is not sufficient to effect a supersedeas where it 
 contains no security for the costs. Seward v. Corneau, 102 U. S., 161. 
 Deford v. Meliaffy, 13 Fed., 481. But an inadvertent variance by which 
 the supersedeas bond is less by a few dollars than it should be, no ob- 
 jection being made at the time, will not overcome its effect. Clarke 
 V. Eureka County Bank, 131 Fed., 145. The surety on an appeal bond 
 is liable not only for the costs in the Court of Appeals, but also- in 
 the lower court. Expanded Metal Co. v. Bradford, 177 Fed., 604. 
 Fidelity & Deposit Co. v. Expanded Metal Co., 183 Fed.,, $68. Young 
 V. Daley, 185 Fed^, 209. 
 
 (i) Whether on a writ of error in ejectment the bail are liable for 
 mesne profits by way of damages, and the bond should therefore be 
 sufficient to cover them in order to make the writ a supersedeas, is 
 involved in controversy. It was held that they were not in Warren 
 V. Steer, 118 Pa., 529, and Johnson v. Hessel, 134 Pa., 315. See also. 
 Burgess v. Doble, 149 Mass., 256. But in Gardner v. Kiehl, 182 Pa., 
 194, 200, Warren v. Steer was spoken of as a much to be regretted 
 decision ; and in Gleeson's Est, 192 Pa., 279, it was squarely held that 
 on a writ of error from the Stipreme Court of Pennsylvania to the 
 Supreme Court of the United States in an ejectment case, the obligors 
 on the appeal bond were bound for all damages arising from the use 
 and detention of the property pending the appeal, although not for 
 repairs made. And a similar ruling as to the necessity for the bond 
 covering the rent and mesne profits pending the appeal in order to 
 have it operate as a supersedeas was made in St. Louis Smelting Co. v. 
 Wyman, 22 Fed., 184. And see Tarpey v. Sharp, 12 Utah, 383, 390, 43 
 Pacif. Rep., 104; Lum v. Reed, 53 Miss., 71; Kirkland v. Trott, 7$ Ala., 
 321 ; and Laurence v. Lippencott, 6 N. J. Law, 577. But on the other 
 hand, in Roberts v. Cooper, ig How., 373, which was, an ejectment for 
 a mine, where a bond of only one thousand dollars had been exacted, 
 the Court refused to require additional security upon a showing by 
 affidavit that the plaintiff would be damaged over $25,000. by reason 
 of the delay sustained in the working of the mine. And in Ex parte 
 French, 100 U. S., i, the bond being ample to cover the mesne profits 
 recovered, the court refused to order execution of the judgment be- 
 cause of the damage that might arise, as alleged, from a detention of 
 the property pending the appeal. 
 
 (/) In an ordinary foreclosure suit an appeal bond does not operate 
 in a Federal Court as security for the amount of the decree; nor for 
 interest pending the appeal ; nor for the balance due after applying 
 the proceeds of the -sale of the mortgaged premises ; nor for the rents 
 and profits, or the use and detention of the property pending the ap- 
 peal; but only for the costs of the appeal, and the deterioration or 
 waste of the property, and perhaps burdens accruing by non-payment 
 of taxes, or loss by fire if not properly insured. Kountze v. Omaha 
 Hotel Co., 107 U. S., 378. Supervisors v. Kennicott, 103 U. S., 554, 
 557. This, it is to be observed, is not the Pennsylvania rule. Smead 
 V. Stuart, 194 Pa., 578. Koecker v. Fidelity Trust Co., 103 Pa., 331. 
 But even there, security in double the amount of the judgment is not 
 required where, by the terms of the mortgage, the lien and collection 
 
23 COURT OF APPEALS RULES. R 13-n 
 
 of the judgment is restricted to the land. Hosie v. Gray, 73 Pa. 502. 
 But on an appeal from an order confirming a foreclosure sale and 
 directing the execution of a deed and the delivery of immediate pos- 
 session to the purchaser, the surety on a supersedeas bond is liable 
 for the value of the use and possession of the property for the time 
 the purchaser is kept out of the same. Woodworth v. Northwest. 
 Mutual, Life Ins. Co., 185 U. S., 3S4. And where, after a decree of 
 foreclosure of a chattel mortgage, possession of the property was ob- 
 tained by the appellant pending an appeal, and it was destroyed by fire, 
 the sureties on the appeal bond were held liable for the full value of the 
 property. Perry v. Tacoma Mill Co., 152 Fed., 115. 
 
 {k) Parties who sign supersedeas, cost, or delivary bonds volun- 
 tarily connect themselves with the suit in such a manner as to be 
 subject to the jurisdiction of the court in which the suit is pending, 
 and to a summary judgment upon their undertaking, when the amount 
 of their liability can be ascertained without an issue and trial. Egan 
 V. Chicago & Great Western R. R., 163 Fed., 344. Cimiotti Unhairing 
 Co. V. American Fur Refining Co., 158 Fed., 171. Commonwealth 
 V. Fidelity & Deposit Co., 180 Fed., 292. Upon the discharge of the 
 liability on a supersedeas bond the court may order the bond to be 
 cancelled. Perry v. Tacoma Mill Co., 152 Fed., 115. 
 
 2. On all appeals from any interlocutory order or decree 
 granting or continuing an injunction (a) in a circuit or district 
 court, the appellant shall, at the time of the allowance of said 
 appeal {b), file with the clerk of such circuit or district court 
 a bond to the opposite party in such sum as such court shall 
 direct, to answer all costs if he shall fail to sustain his appeal. 
 
 [C. C. A. Rule 13, Section 2, substantially- the same in all 
 the circuits.] 
 
 (a) By Act March 3, 1911, Sect. 129, 36 Stat., 1134, an appeal may 
 be taken from an order refusing, dissolving, or refusing to dissolve an 
 injunction, the same as from the granting and continuing of one. 
 This restores the law to what it was after the passage of the Act of 
 Feb. 18, 189s, 28 Stat, 666. 
 
 (&) The allowance of a stay on an appeal from an order awarding 
 an injunction is a matter of discretion and not of right. In re Haber- 
 man Mfg. Co., 147 U. S., 525. The effect of an injunction is not stayed 
 by the mere granting of an appeal with a bond in the form of a 
 supersedeas bond. Knox County v. Harshman, 132 U. S., 14. The 
 court or judge allowing the appeal may suspend or modify the in- 
 junction pending it. Equity Rule 93. Leonard v. Land Co., 115 U. S., 
 465. New River Mineral Co. v. Seeley, 117 Fed., 981. See also Rule 
 14, Sect. I, infra. Unless this is done the injunction retains its in- 
 trinsic force. Act March 3, 1911, Sect, 129, 36 Stat., 1134. Hovey 
 V. McDonald, 109 U. S., 150, 162. The suspensive character given to 
 the appeal at the time it is allowed cannot be recalled by the lower 
 court, before the appeal is finally disposed of. Shelby Steel Tube Co. 
 V. Delaware Seamless Tube Co., 161 Fed., 798. And this means until 
 the mandate comes down. Durant v. Essex Co., loi U. S., 555. A 
 supersedeas secured at the time of the appeal . continues in force 
 pending a petition to the Supreme Court for a certiorari. Boston & 
 Maine R. R. v. Gokey, 150 Fed., 686. 
 
R 14 COURT OF APPEALS RULES. 24 
 
 RULE 14. WRITS OF ERROR, APPEALS, RETURNS 
 AND RECORDS (a). 
 
 I. Any appeal to this court, or writ of error from this 
 court, allowable by law (b), may be allowed, in term time or 
 vacation, by the circuit justice, or by any of the circuit judges 
 within this circuit, or by any district judge within the district 
 where the case to be reviewed was heard or tried, who may 
 also take the proper security (c), sign the citation (d), and, 
 if he deem it proper so to do, grant a supersedeas (e) and 
 stay of execution (f) or of proceedings pending such writ 
 of error or appeal. 
 
 [S. C. Rule 36, Section i. No C. C. A. Rule to correspond 
 except Rule 35, Sect, i in second circuit ; and Rule 37, Sect, i 
 of the sixth circuit; and see Act March 3, 1911, Sect. 132, 
 36 Stat, 1 1 34.] 
 
 (a) For helpful suggestions with regard to the mode of taking 
 an appeal or writ of error see ISO Fed. Ixxiii; 2 Rose Fed., Proced., 
 sects. 1923, 1972; 3 Foster's Fed. Prac, sects. 496, 511; and 2 Loveland 
 Fed. Forms, p. 1684, et seq. Proceedings on appeal in the Federal Courts 
 are governed by the Acts of Congress. The state practice under the 
 conformity act affords little if any guide. Laurel Oil & Gas Co. v. 
 Galbreath Oil & Gas Co., 165 Fed., 162. 
 
 Parties on error or appeal. All parties against whom a joint judg- 
 ment or decree is entered and who appear by the record to be in- 
 terested must join in the writ of error or appeal. 3 Foster's Fed. 
 Prac, 2054. 2 Rose Fed. Proced., Sect. 1916. Masterson v. Herndon, 
 10 Wall., 416. Davis v. .Trust Co., 152 U. S., S90- Beardsley v. Ar- 
 kansas &c. Railway, 158 U. S., 123. Lewis v. Sittel, 165 Fed., 157. Ibbs 
 V. Archer, 185 Fed., 37. Ireton v. Pa. Co., 185 Fed., 84. Where this 
 is not done it must appear that the party not joining was notified ancf 
 failed or refused to do so. Hardee v. Wilson, 146 U. S., 179. Ibbs v. 
 Archer, 185 Fed., 37. And where a general judgment is rendered 
 against the original defendants and the sureties on a supersedeas bond; 
 the judgment is joint and all must join in the writ of error unless 
 there is a summons and severance. Lamon v. Speer Hardware Co., 
 igo Fed., 734. But if the appeal is allowed in open cotirt there is no 
 need for a summons and severance. McNulta v. West Chicago Park 
 Commissioners, gg Fed., 328. King v. Thompson, no Fed., 319. 
 Neither is there, where a party has no real interest. Mercantile Co. 
 V. Kanawha & Ohio R. R., 58 Fed., 6. And where all the parties are 
 joined in the writ, the omission of some of them in the petition is im- 
 material. Fitzpatrick v, Graham, 119 Fed., 353. One of several de- 
 fendants also may sue out a writ of error where his interest is separate. 
 Winters v. United States, 207 U. S., 564. Alsop v. Conway, 188 Fed., 
 568. 
 
 So all parties to a suit, including interveners, who would be injur- 
 iously affected by a reversal of the decree must be made respondents 
 on the appeal. Wilson v. Kiesel, 164 U. S., 248. But not those who 
 have no interest in' maintaining or reversing it. Basket v. Hassell, 
 107 U. S., 602. Marchand v. Livandais, 127 U. S., 775. Amadeo v. 
 Northern Assur. Co., 201 U. S., 194. A person may be an indispen- 
 
25 COURT OF APPEALS RULES. R 14-n 
 
 sible party in the lower court and yet not be indispensible on appeal. 
 Love V. Export Storage Co., 143 Fed., i. 
 
 Tim,e within which to appeal. A writ of error or appeal to the Cir- 
 cuit Court of Appeals must be taken within six months, and when 
 more then six months intervene after the entry of judgment a court 
 of error has no jurisdiction. Connecticut Fire Ins. Co. v. Oldendorff, 
 73 Fed., 88, 90. Condon v. Central Loan & Trust Co., Ibid, 907. Blaf- 
 fer V. New Orleans Water Supply Co., 160 Fed., 389. The rule is 
 strictly adhered to, and the fact that a writ of error was allowed 
 within that time but not issued is not sufficient. Rutan v. Johnson, 130 
 Fed., 109. The time cannot be enlarged by agreement. Clark v. Doerr, 
 143 Fed., 960. In re Brown, 174 Fed., 339; nor by order of court. 
 Stevens v. Clark, 62 Fed., 321; nor can the parties confer jurisdic- 
 tion by a voluntary appearance. D'odson v. Fletcher, 79 Fed., 129; nor 
 will the time be extended by motion to vacate the judgment after the 
 time for taking the appeal has expired, where the motion brings nothing 
 new into the record, and is merely in substance and effect an ap- 
 plication for a reargument. United States v. Fidelity & Deposit Co., 
 155 Fed., 117. But the time does not begin to run until the entry of 
 a final judgment. Marks v. Northern Pacific R. R., 76 Fed., 941. And 
 hence whEre a petition for a rehearing is presented in season, or a mo- 
 tion for a new trial is duly made, the judgment is not final for the 
 purpose of an appeal or writ of error until the petition or motion if 
 entertained is disposed of. Kingman v. Western Mfg. Co., 170 U. S., 
 67s, 678. Cherokee Nation v. Whitmire, 223 U. S., 108, iii. A peti- 
 tion for review in bankruptcy by analogy with an appeal should be 
 taken within ten days, unless the circumstances justify a delay. Blan- 
 chard V. Amnions, 25 Amer. Bank. Rep., 590; 183 Fed., 556. And it 
 is so prescribed by rule (Rule 38), in the second circuit. In re 
 Brown, 23 Amer. Bank. Rep., 93 ; 174 Fed., 339. It must be taken in 
 any event within six months. In re Groetzinger & Sons, II Amer. 
 Bank. Rep., 467; 127 Fed., 124. Blanchard v. Ammons, 25 Amer. 
 Bank. Rep., 590; 183 Fed., 556. 
 
 The six months is not extended by the fact that the last day falls 
 on Sunday. Johnson v. Meyers, 54 Fed., 417. Meyer v. Hot Springs 
 Improvement Co., 169 Fed., 628. But an appeal if taken in time may 
 be perfected by the entry of a proper bond, notwithstanding the fact 
 that the six months have expired. Blaffer v. New Orleans Water 
 Supply Co., 160 Fed., 389. Nor is the failure to give bond for costs 
 at the time of taking an appeal ground for dismissing it, provided the 
 bond is filed within a reasonable time, and the appellee is not prejudiced 
 by the delay. Corcoran v. Kostrometinoff, 164 Fed., 685. Herr v. St. 
 Louis & Santa Fe R. R., 174 Fed., 938. And where a writ of error 
 has been allowed and the citation duly issued and served, an informali- 
 ty in the bond will not affect the jurisdiction of the court. Smythe v. 
 New Orleans Land Co., 184 Fed., 892. 
 
 (b) Wh-at appeals allowable. Where jurisdiction in the court be- 
 low is in issue and is sustained, and a decision rendered in favor 
 of the defendant on the merits, the question of jurisdiction may be 
 reviewed by the Court of Appeals. Campbell v. Golden Cycle Mining 
 Co., 141 Fed., 610. But not where the decision is in favor of the de- 
 fendant on the question of jurisdiction, Ibid. So the Court of 
 Appeals has jurisdiction and that of the Supreme Court is not exclu- 
 sive, where the plaintiff's case, although a constitutional ■ question is 
 involved, depends not only on that, but' on the proper construction 
 of an Act of Congress. Harris v. Rosenberger, 145 Fed., 449. And 
 generally the question of jurisdiction is reviewable by the Court of 
 
R 14-n COURT OF APPEALS RULES. 26 
 
 Appeals when it is not the sole question determined. Meeker v. 
 Lehigh Valley R. R., 183 Fed., 548. And a decree in an ancillary 
 bill is appealable to the Court of Appeals even though it involves 
 a constitutional question, the jurisdiction of that court being depend- 
 ent on its jurisdiction over the original suit. Railroad Commission 
 V. Worthington, 187 Fed., 965, 225 U. S., loi. But vsfhere jurisdiction 
 depends entirely on whether a state law violates the Federal Con- 
 stitution an appeal is to be taken to the Supreme Court, and not to 
 the Court of Appeals. Paducah v. East Tenn. Tel. Co., 182 Fed., 625. 
 
 A motion for a new trial in an action at law is not a necessary pre- 
 liminary to a writ of error, notwithstanding the State practice to that 
 effect. Boatmen's Bank v. Trower, 181 Fed., 804. An appeal is a 
 matter of right and may be ■ denied only where no appeal whatever is 
 allowed. Brown v. McConnell, 124 U. S., 489. Simpson v. First Nat. 
 Bank, 129 Fed., 257. McCourt v. Singers-Bigger, 150 Fed., 102. And 
 a second appeal lies where there were subsequent issues not adjudged 
 upon the first one. McCourt v. Singers-Bigger, 150 Fed., 102. United 
 States V. Camou, 184 U. S., 574. United States v. New York Indians, 
 173 U. S., 464, 472. Nor are appeals in equity and admiralty limited 
 to cases where the amount in controversy exceeds $50. The Joseph 
 B. Thomas, 148 Fed., 762. But there is no appeal from a decree sim- 
 ply for costs. Canter v. Insurance Co., 3 Pet., 307. Elastic Fabrics Co. 
 V. Smith, ICO U. S., no, 112. Russell v. Farley, 105 U. S., 433, 437. 
 Paper-Bag Co. v. Nixon, Ibid, 766. DuBois v. Kirk, 158 U. S., 58, 67. 
 Wright V. Gorman-Wright Co., 152 Fed., 408. 
 
 > Where a new trial has been granted under a misconception, upon 
 the idea that the verdict rendered was not possible under the pleadings, 
 a writ of error is allowable to correct this mistake. James v. Evans, 
 149 Fed., 136. So also is it, upon the refusal of the Court to exercise 
 its discretion, on a mistaken conception of its powers. Dwyer v. United 
 States, 170 Fed,, 160. The refusal of the lower court to consider a 
 motion for a new trial made in time and sustained by evidence, show- 
 ing proper grounds for it also may be reviewed and reversed. Mattox 
 V. United States, 146 U. S., 140. Felton v. Spiro, 78 Fed., 576. Ogden 
 V. United States, 112 Fed., 523. But to make the refusal error the 
 application must involve something new and not passed upon at the 
 trial. Gourdain v. United States, 154 Fed., 453. 
 
 An order requiring the production of books and papers at the trial 
 is interlocutory and not final, and no writ of error therefore lies. 
 Webster Coal and Coke Co. v. Cassatt, 207 U. S., 181. Penna. R. R. 
 V. International Coal Mining Co., 156 Fed., 765. The same is true of 
 a refusal of judgment for want of an affidavit of defense under the 
 Pennsylvania practice. Shumaker v. Security Life & Annuity Co., 
 IS9 Fed., 112; or the sustaining of a demurrer to the plaintiff's state- 
 ment, where nothing further is done. Morris v. Dunbar, 149 Fed., 
 406; or the refusal of an amendment to the pleadings, such refusal 
 resting in the sound discretion of the Court. Stillwagon v. Baltimore 
 & Ohio R. R., 159 Fed., 97. 
 
 But the judgment is none the less final, because the costs included 
 in it have not been taxed. AUis-Chalmers Co. v. United States, 162 
 Fed., 679. There is nothing which can be revised on a petition of 
 review in bankruptcy without either the evidence or an agreed state 
 of facts, on which the order of the bankruptcy court is predicated. 
 Hegner v. American Trust Co., 187 Fed., 599. The Court of Appeals 
 is not required to make a finding of facts and conclusions of law un- 
 der General Order in bankruptcy No. 36 in a case appealable to the 
 
27 COURT OF APPEALS RULES. R 14-n 
 
 Supreme Court unless this has been requested before decision made. 
 Crucible Steel Co. v. Holt, 174 Fed., 127. 
 
 (c) The bond to be effective as a supersedeas must be approved 
 by the judge who signs the citation and fixes the amount. Gay v. 
 Hudson River Power Co., 190 Fed., 812, 820. 
 
 (d) The citation may be signed by the District as well as the Cir- 
 cuit Judge. Brown v. McConnell, 124 U. S., 489. Rodd v. Heartt, 17 
 Wall., 354. Richards v. Mackall, 113 U. S., 539. Huntington v. 
 Laidley, 176 U. S., 668, 677. But where a writ of error runs to a 
 State Court, the citation is to be signed by a Justice of the United 
 States Supreme Court, or by the Chief Justice, Judge or Chancellor 
 of the State Court which rendered the decision. Rev. Stat., 999. Barte- 
 meyer v. Iowa, 14 Wall., 26. It cannot be signed by an Associate Jus- 
 tice except as it appears that he was acting as Chief Justice pro tem. 
 Butler V. Gage, 138 U. S., 52, 56. Havnor v. New York, 170 U. S., 
 408. Missouri Valley Land Co. v. Wiese, 208 U. S., 234. 
 
 When an appeal is taken in open Court it is taken against all ad- 
 verse interests, and all parties being present in contemplation of law 
 are affected with notice, and no citation is necessary. Railroad Com- 
 pany v. Blair, loo U. S. 661. Taylor v. Lessnitzer, 220 U. S., 90. Wil- 
 liams V. City Bank, 186 Fed., 419. But notice is. required when the ap- 
 peal is otherwise taken. Dodge v. Knowles, 114 U. S., 430, 438. Hewitt 
 V. Filbert, 116 U. S., 142. Richardson v. Green, 130 U. S., 104, 114. And 
 it is always required in case of a writ of error. United States v. Phil- 
 lips, 121 U. S., 254; unless there is a waiver or the equivalent. Villa- 
 bolos V. United States, 6 How., 81, 90. Goodwin v. Fox, 120 U. S., 775. 
 
 (e) See Rule 13 and the citations under it. 
 
 (/) After the jurisdiction of the appellate court has attached, ap- 
 plications for a stay, or to vacate or modify one which has been 
 granted must be made to the appellate and not the lower court. 
 Butchers Assoc, v. Slaughter House Co., i Woods, SO- Rubber Co. v. 
 Goodyear, 6 Wall., 153, 156. French v. Shoemaker, 12 Wall., 86, 99. 
 Jerome v. McCarter, 21 Wall., 17, 31. Martin v. Hazard Powder Co., 
 93 U. S., 302. Williams v. Claflin, 103 U. S., 753. Harwood v. Dieck- 
 erhoflf, 117 U. S., 200. Mexican Construction Co. v. Reusens, 118 U. S., 
 49) S3- The application must be made to the Court itself and not 
 to a single judge. In re Ironclad Mfg. Co., 190 Fed., 320. But when 
 the case has been sent down by mandate to the lower Court, if there 
 is occasion for a stay it is to be asked for there. Bost. & Maine R. R. 
 v. Gokey, 150 Fed., 686. 
 
 2. The clerk of the court to which any writ of error may 
 be directed, or from which any appeal may be taken, upon 
 being paid or tendered his fees therefor (a), shall make a 
 return of the same (b) by transmitting a true copy of the 
 record (c), bill of exceptions (d), assignment of errors (e), 
 and all proceedings in the case (/), under his hand and the 
 seal of the court (g). 
 
 [S. C. Rule 8, Sect. i. C. C. A. Rule 14, Sect, i, in force 
 in substance in all the circuits. In the Supreme Court and in 
 the seventh circuit there is an additional provision that "the 
 clerk may require of the appellant or plaintiff in error a written 
 
R 14-n COURT OF APPEALS RULES. 28 
 
 praecipe stating in detail what the transcript shall contain, and 
 when a praecipe is filed shall insert a copy thereof in the 
 transcript."] 
 
 (o) A writ of error or appeal cannot be prosecuted in forma pau- 
 peris. Bradford v. Southern Railway, 195 U. S., 243. Taylor v. Adams 
 Express Co., 164 Fed., 616. Herman Keck Mfg. Co. v. Lorsch, 179 
 Fed., 485. The George Hill, 192 Fed., 1022. And this extends to the 
 printing of the record, which cannot be dispensed with. In re Bradford's 
 Petition, 139 Fed., 518. But the bond for costs in an admiralty case 
 will under some circumstances be dispensed with, and a typewritten 
 instead of a printed copy of the record be accepted. The George Hill, 
 192 Fed., 1022. As the law stood prior to the Act of February 13, 1911, 
 36 Stat., 901, the clerk was entitled to fifteen cents a folio for making 
 up and certifying the record. Rev. Stat. Sect. 828. McIIwaine v. Elling- 
 ton, 99 Fed., 133. Mohrstadt v. Mutual Life Ins. Co., 14s Fed., 751. 
 Hoysradt v. D. L. & W. R. R., 182 Fed., 880. 9 Compt. Decisions, 285. 
 But in Cavender v. Cavender, 10 Fed., 828, it is held that the proper 
 fee is ten cents. The clerk is entitled to his fees in advance. Steever 
 V. Rickman, 109 U. S., 74. Bean v. Patterson, no U. S., 401. Caven- 
 der v. Cavender, 10 Fed,, 828. Hoysradt v. D. L. & W. R. R„ 182 Fed., 
 880. But he has no right, as a condition to certifying and transmitting 
 the record, to demand payment of the costs which accrued prior to 
 the appeal. Jennings v. Johnson, 148 Fed., 337. 
 
 By Act of February 13, 1911, Sect. I, 36 Stat, goi, however, which 
 was passed to diminish the expenses of proceedings on appeals and 
 writs of error, it is in substance provided, that the appellant or plain- 
 tiff in error shall cause to be printed under such rules as the lower 
 Court shall prescribe and shall file in the office of the clerk of th€ 
 Circuit Court of Appeals at least twenty-five days before the case is 
 called for argument twenty-five printed transcripts of the record of 
 the lower court, and of such part or abstract of the proofs, as the rules 
 of the Court of Appeals may prescribe in such form as the Supreme 
 Court may by rule require, one of which printed transcripts shall be 
 certified under the hand of the clerk and the seal of the court. But 
 except where the case is carried from the Court of Appeals to the 
 Supreme Court, which is provided for in the second section, not here 
 noted, there seems to be no change as to the fees to be charged by 
 the clerk of the District Court. As to the fees of the clerk of the 
 Court of Appeals for supervising and indexing, see Colt's Mfg. Co. v. 
 New York Goods Co., 186 Fed., 625. 
 
 (b) The original writ of error should be returned to the appel- 
 late court with a transcript of the record attached. Rev. Stat., Sect. 
 997. Massina v. Cavazos, 6 Wall., 355. The destruction of the original 
 will excuse its return if a copy is attached to the transcript. Ibid. 
 And where by mistake a copy of the writ was annexed to the tran- 
 script, instead of the original, but the original was produced with the 
 citation, and an acknowledgment of service duly certified thereon, it 
 was held to be sufficient. Burnham v. Railway Co., 87 Fed., 168. 
 
 (c) No absolute rule can be laid down as to what the record should 
 or should not contain, but the instructions issued by the clerk of the 
 Circuit Court of Appeals of the fourth circuit with regard to the 
 preparation of the transcript will be found to be of value. 2 Rose Fed. 
 Proced., 1956. 150 Fed., Ixxiv. The second admiralty rule has also 
 been suggested as a guide. Railway Co. v. Stewart, 95 U. S., 279. Ir- 
 relevant and useless matter which only cumbers the case and in- 
 
29 COURT OF APPEALS RULES. R 14-n 
 
 creases the costs, should clearly be eliminated. Ibid. And costs may 
 be imposed where this is not observed. Ball & Socket Co. v. Kraetzer, 
 ISO U. S., Ill, 118. Where the case has been disposed of on demurrer 
 to the bill it is not necessary to include the evidence. Missouri, Kan- 
 sas & Texas R. R. v. Dinsmore, 108 U. S., 30. And where there has 
 been a previous appeal, matters preceding the mandate should be 
 omitted. Supervisors v. Kennicott, 94 U. S., 498. Union Pacific R. R. 
 V. United States, 116 U. S., 402. Nashua & Lowell R. R. v. Bost. & 
 Lowell R. R., 61 Fed., 237, 243. But an original and a cross bill should 
 be included as they constitute one suit. Gregory v. Pike, 64 -Fed., 4x5. 
 Ex parte Railroad Co., 95 U. S., 221, 225. When both parties appeal 
 one transcript is enough. Rev. Stat., Sect. 1013. 
 id) See Rule 10 and notes, supra. 
 
 (e) See Rule 11 and notes, supra. 
 
 (f) The clerk may refuse to certify a transcript where there are 
 palpable and substantial omissions. Nashua & Lowell R. R. v. Bost. & 
 Lowell R. R., 61 Fed., 237, 243. The attorney for the appellant in case 
 of doubt may be called on by the clerk to indicate by praecipe what 
 the record should contain. Burnham v. Railway, 87 Fed., i68. Penna. 
 Co. V. Railway, SS Fed., 131. The rules expressly provide for this 
 in the seventh circuit. Where the clerk is requested to insert a matter 
 by one party and to leave it out by another the Court below may be 
 appealed to to direct what shall be done. Hoe v. Kahler, 27 Fed., 
 145. As to the right of counsel to stipulate what shall be included in 
 the transcript, see Lamb Knit Goods Co. v. Lamb Glove & Mitten Co., 
 120 Fed., 267. Where by stipulation or praecipe less than the whole 
 record is sent up, the certificate should show it. Meyer v. Mansur Im- 
 plement Co., 85 Fed., 874. Cunningham v. German Ins. Bank, 103 
 Fed., 932. 
 
 (g) For form of authentication, see 2 Loveland's Fed. Forms. Nos. 
 1465-1469. The record is authenticated by annexing a transcript to the 
 writ of error and returning it under the seal of the court duly certi- 
 fied by the clerk or his deputy. Worcester v. Georgia, 6 Pet, 515. 
 Blitz V. Brown, 7 Wall., 693. Garneau v. Dozier, 100 U. S., 7. Where 
 the clerk by mistake has failed to sign the certificate, the appellate 
 court may allow his signature to be added. Idaho Improvement Co. v. 
 Bradbury, 132 U. S., 509. A defect in the authentication will not de- 
 feat jurisdiction. Burnham v. North Chicago R. R., 87 Fed., 168. If 
 the clerk refuses to certify he may be compelled by mandamus or rule. 
 United States v. Booth, 18 How., 476. United States v. Gomez, 3 Wall., 
 752, 766. 
 
 3. In all cases brought to this court, by writ of error or 
 appeal, to review any judgment or decree, the clerk of the 
 court by which such judgment or decree was rendered shall 
 annex to and transmit with the record a copy of the opinion 
 or opinions filed in the case. 
 
 [S. C. Rule 8, Sect. 2. C. C. A. Rule 14, Sect. 2, in force 
 in substance in all the circuits.] 
 
 The opinion of the Court in an action at law is no part of the record, 
 even where required by rule of Court to be transmitted with 
 it. England v. Gebhardt, 112 U. S., 502, 506. But the case is different 
 in equity where the reasons given for a decision may be looked to to 
 determine the scope of it. Russell v. Russell, 129 Fed., 434. Larkins 
 
R 14 COURT OF APPEALS RULES. 30 
 
 V. Lindsay, 205 Pa., 534. So on error to a state court where by stat- 
 ute the opinion of the court is required to be spread on the record, it is 
 examinable upon error to ascertain the questions decided. Gross v. 
 United States Mfg. Co., 108 U. S., 477. Crossley v. New Orleans, 108 
 U. S., los. Egan v. Hart, 165 U. S., 188. Adams v. Burlington R. R., 
 112 U. S., 123, 129. But for a proper understanding of the rulings 
 of the lower court the opinion should always be included. Teller v. 
 United States, iii Fed., iig. 
 
 4. No case will be heard until a complete record (a), con- 
 taining in itself, and not by reference, all the papers (&), ex- 
 hibits, depositions (c), and other proceedings, which are 
 necessary to the hearing in this court, shall be filed. 
 
 [S, C. Rule 8, Sect. 3. C. C. A. Rule 14, Sect. 3, in force 
 in substance in all the circuits except the fourth which has a 
 substitute. 193 Fed. viii.] 
 
 (a) As to what should go into the transcript in order to make a 
 complete record, see notes to Sect. 3 of this rule. It is the 
 duty of the appellant to see that the record is complete. Redfield 
 V. Parks, 130 U. S., 623. Dalton v. Moore, 141 Fed., 311. And the 
 appeal may be dismissed where it is not. Railroad Co. v. Schutte, 100 
 tJ. S., 644. A certiorari may be sued out to bring up what is omitted. 
 Redfield v. Parks, 130 U. S., 623. American Construction Co. v. Jack- 
 sonville R. R., 148 U. S., 372, 380. Flickinger v. Bank, 145 Fed., 162. 
 Where by stipulation or praecipe less than the whole record is sent up 
 the certificate should show it. Meyer v. Mansur Implement Co., 85 
 Fed., 874. Cunningham v. German Ins. Bank, 103 Fed., 932. 
 
 (6) The mere fact that a paper is found among the files does not 
 make it a part of the record. Rio Grande Irr. Co. v. Gil(Jersleeve, 174 
 U. S., 603, 608. 
 
 (c) Affidavits and depositions do not become a part of the record 
 even though they appear in the transcript, unless they are made so 
 in some appropriate manner. Baltimore & Potomac R. R. v. Trustee?, 
 91 U. S., 127. Stewart v. Wyoming Ranche Co., 128 U. S., 383. Evans 
 v. Stettnisch, 149 U. S., 605. 
 
 5. Whenever it shall be necessary or proper, in the opinion 
 of the presiding judge in any circuit or district court, that 
 original papers of any kind 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 connection with the transcript of the proceedings. 
 
 [S. C. Rule 8, Sect. 4. C. C. A. Rule 14, Sect. 4, in force 
 in all the circuits.] 
 
 This" is the rule in admiralty by express statute. Rev. Stat., Sect. 698. 
 It is also now provided by statute in all cases. Act Feb. 13, 191 1. ' 36 
 Stat., 901. 
 
 Original papers are not to be incorporated into the record merely 
 to save the expense of copies. This is not justified by the rule. 
 
31 COURT OF APPEALS RULES. R 14 
 
 Dowagiac Mfg. Co. v. Brennan, 156 Fed., 213. Nor will original 
 books and papers be transmitted in the absence of a showing that tran- 
 scribed or photographic copies will not answer. Herman Keck Mfg. 
 Co. V. Lorsch, 179 Fed., 485. The rule is to be confined to such papers 
 as require actual inspection as Originals in order to give, them full ef- 
 fect in the determination of the case. Craig v. Smith, loo U. S., 232. 
 Hence original affidavits of the authenticity of which there is no ques- 
 tion are not to be sent up. Ibid. But where exhibits used in the trial 
 court are treated by both parties as before the court on appeal, any 
 informality in the way they got there will be disregarded. Wilson v. 
 Chicago Lumber Co., 143 Fed., 705. 
 
 6. All appeals, writs of error (a), and citations (b) must 
 be made returnable not exceeding thirty (c) days from the 
 day of signing the citation, whether the return day fall in 
 vacation or in term time, and be served (d) before the return 
 day^ (e) ; but the citation must be signed, and the bond for 
 costs must be approved and filed (/), and the assignments 
 of error submitted and filed, with the petition for the appeal 
 or writ of error, immediately after the appeal or writ of error 
 is allowed; provided, however, that every appeal taken from 
 an interlocutory decree, under 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," ap- 
 proved March 3, 1891, and amendments to said section, shall 
 be made returnable in ten days (g) from the allowance of the 
 appeal and the signing of the citation. 
 
 [S. C.'Rule 8, Sect. 5. C. C. A. Rule 14, Sect. 5, in force 
 ii simpler form in all the circuits except the seventh, where 
 it is substantially as above.] 
 
 (o) Writs of error may be issued as well by the clerk of the Dis- 
 trict Court as by the clerk of the Court of Appeals. Rev. Stat., Sect. 
 1004. Act January 22, 1912, 37 Stat., Massina v. Cavazos, 6 
 
 Wall., 3SS, 357. Northern Pacific R. R. v. Amato, 49 Fed., 881. Shep- 
 pard V. Wilson, 5 How., 211. The parties should be correctly described 
 in the writ as they are to appear and be styled in the appellate court, 
 as well as the way they appear in the court below. Massina v. Cavazos, 
 6 Wall., 355, 361. But that they are designated as plaintiff and de- 
 fendant, following their position in the court below, while a clerical 
 error does not affect the right to prosecute the proceedings. Hackfeld 
 V. United States, 141 Fed., 9. 
 
 (b) A citation is a summons to the opposite party to appear. Villa- 
 bolos V. United States, 6 How., 81, 90. It is intended in case of an 
 appeal as notice that the appeal has been taken and will be prosecuted. 
 Dcdge V. Knowles, 114 U. S., 430, 438. Where an appeal is allowed in 
 open court, at the term at which the decree is entered, a citation is not 
 necessary, the allowance of the appeal being sufficient notice. Railroad 
 V. Blair, 100 U. S., 661. Taylor v. Lessnitzer, 220 U. S., 90. Wil- 
 liams V. City Bank, 186 Fed., 419. But if the appeal is taken out 
 
R 14-n COURT OF APPEALS RULES. 32 
 
 of court, or after the term, the citation should issue, it being neces- 
 sary in order to show that the appeal or writ of error has not been 
 abandoned. Dodge v; Knowles, 114 U. S., 430, 438. Hewitt v. Fil- 
 bert, 116 U. S., 142. Richardson v. Green, 130 U. S., 104, 114. No 
 citation would seem to be necessary in an appeal in bankruptcy. In 
 re Hill & Co.', 148 Fed., 832. 
 
 But a citation is essential where a writ of error is taken, and where 
 none has been issued, and the defendant in error fails to appear, the 
 writ will be dismissed. Notice in open court at the time the judgment 
 was rendered is not sufficient, there being a difference in this respect 
 between a writ of error and an appeal. United States v. Phillips, 121 
 U. S., 254. A citation, however, may be waived, and a general appear- 
 ance constitutes such a waiver. Villabolos v. United States, 6 How., 81, 
 90; and so does the acceptance of service of a defective citation. 
 Bigler v. Waller, 12 Wall., 142 ; or whatever is equivalent to the ac- 
 knowledgment of notice. Goodwin v. Fox, 120 U. S., 775. 
 
 (c) In the fourth circuit it is forty, and in the eighth it is sixty days. 
 193 Fed., ix. 188 Fed., xi. The requirement that writs of error 
 and citations shall be made returnable and transcript be filed not 
 exceeding thirty days from the date of the citation is directory and 
 not jurisdictional, and an appeal will not be dismissed for non- 
 compliance therewith. Love v. Busch, 142 Fed., 429. Nome & Sinook 
 Co. V. Ames Mercantile Co., 187 Fed., 928. Nor will the cast be 
 dismissed because the citation did not issue until after the time 
 limited for the appeal. Nome & Sinook Co. v. Ames Mercantile 
 Co., 187 Fed., 928. And where a defective citation is issued an alias 
 may issue if required. Ibid. 
 
 (d) Personal service of the citation on the party cited or his at- 
 torney is requisite in the absence of an equivalent notice, or of a 
 waiver. Dayton v. Lash, 94 U. S., 112. Hewitt v. Filbert, 116 U. S., 
 142. Service by mail is not sufficient. Tripp v. Santa Rosa Street 
 Railroad, 144 U. S., 126. It seems to be otherwise with regard to 
 service of a brief. Russo-Chinese Bank v. National Bank of Com- 
 merce, 187 Fed., 80. Where the citation on its face runs to all par- 
 ties, but is not served on some who are essential to the appeal, who 
 are not brought into court, and do not appear, the want of service is 
 fatal. Davis v. Mercantile Trust Co., 152 U. S., 595. 
 
 (e) The citation should be served before the return day, but the 
 failure to do so will not bring about a dismissal. Railroad v. Blair, 
 100 U. S., 661. Richards v. Mackall, 113 U. S., 539, 542. Nor does 
 it have to be served thirty days before the time to which the writ of 
 error is returnable. AH that is required is that the defendant in error 
 shall have thirty days notice before being compelled to go to a hear- 
 ing. National Bank v. Bank of Commerce, 99 U. S., 608. Sutherland 
 V. Pearce, 186 Fed., 783. A new or alias citation may issue when 
 necessary. Dayton v. Lash, 94 U. S., 112. Sutherland v. Pfearce, 186 
 Fed., 783. Nome & Sinook Co. v. Ames Mercantile Co., 187 Fed., 928. 
 And where a writ of error has been seasonably taken and returned, an 
 alias to bring in parties not previously served may issue even though 
 the time within which the writ was to be taken has expired. Altenberg 
 V. Grant, 83 Fed., 980. But an alias citation cannot issue after the 
 term at which the appeal has been docketed. Hewitt v. Filbert, 116 
 U. S., 142. And where an appeal in admiralty was taken within six 
 months, but the citation was not served on parties entitled to be 
 heard in opposition thereto, and the record was not filed by the time 
 required by the rules, nor until nearly a year after the appeal had been 
 
3S COURT OF APPEALS RULES. R 14-n 
 
 allowed, a citation to bring in requisite parties at that time was refused. 
 Hudson V. Limestone Natural Gas. Co., 144 Fed., 952. 
 
 (/) An appeal if taken in time may be perfected by the entry of 
 a proper bond, notwithstanding the expiration of the six months with- 
 in which it must be taken. Blaffer v. New Orleans Water Supply Co., 
 160 Fed., 389. Nor is the failure to give bond for costs at the time of 
 taking the appeal ground for dismissal, provided it is filed within a 
 reasonable time and the appellee is not prejudiced by the delay. Cor- 
 coran V. Kostrometinofif, 164 Fed., 685. Herr v. St. Louis & Santa Fe 
 R. R., 174 Fed., 938. And where a writ of error has been allowed 
 and citation duly issued and served, an informality in the bond will 
 not affect the jurisdiction of the cotirt. Smythe v. New Orleans 
 Land Co., 184 Fed., 892. 
 
 (g) This hmitation is also found in the rules of the fifth but not 
 in the other circuits. 150 Fed., Ixxix. An appeal from the refusing, 
 dissolving or refusing^ to dissolve an injunction or appointing a re- 
 ceiver being now also allowed (Act March 3, 191 1, Sect. 129, 36 Stat., 
 1 134), the same limitation by analogy would probably be applied. 
 
 7. The records in cases of admiralty and maritime juris- 
 diction shall be made up in the same manner, as nearly as 
 practicable, as are the records in equity cases. 
 
 [S. C. Rule 8, Sect. 6. C. C. A. Rule 14, Sect. 6.] 
 
 There are special rules as to appeals in admiralty in the first, second 
 and ninth circuits ; 150 Fed., xl. Ibid. Iv-lx. Ibid, cxxxv-cxxxviii ; 
 and instructions issued by the clerk, approved by the court, and having 
 the effect of a rule, in the fourth circuit. 150 Fed., Ixxiii-Ixxvi ; and a 
 ■ special rule 35 as to additional testimony in admiralty appeals in the 
 sixth circuit. 150 Fed., xcvi. The general rule however prevailing in 
 all is that the record in admiralty cases shall be made up as provided 
 in Supreme Court Admiralty Rule 52. 2 Rose Fed. Proced., Sect. 1963. 
 By Rev. Stat, Sect. 6g8: "Upon the appeal of any cause in equity, or 
 of admiralty and maritime jurisdiction, or of prize or no prize, a tran- 
 script of the record as directed by law to be made, and copies of the 
 proofs and of such entries and papers on file as may be necessary on 
 the hearing of the appeal, shall be transmitted to the Supreme Court; 
 provided that either the court below or the Supreme Court may order 
 any original document or other evidence to be sent up, in addition to 
 the copy of the record or in lieu of a copy of a part thereof." The 
 record "directed by law to be made," which is here referred to, is the 
 final record prescribed by Rev. Stat., Sect. 750; the distinction being 
 recognized between that which constitutes the final record, and that 
 which may be made part of the record for the purpose of appeal. In 
 re Cooper, 143 U. S., 472, 507. These provisions are applicable to the 
 Courts of Appeal, the same as to the Supreme Court. Act March 3, 
 1891, Sect. II. 26 Stat., 829. The Philadelphian, 60 Fed., 427. Proofs 
 intended to be used on appeal should be reduced to writing and filed, 
 and without this the Court of Appeals may refuse to consider them. 
 The Philadelphian, 60 Fed., 427. The Boston, i Sumner, 328. Where 
 the testimony is objected to and ruled out, it should still be returned. 
 Blease v. Garlington, 92 U. S., I, 7. The evidence in an admiralty 
 case will not be considered, although included in the transcript unless 
 made a part of the bill of exceptions. The Wyandotte, 145 Fed., 321. 
 
R 15 COURT OF APPEALS RULES. 34 
 
 RULE 15. BAIL IN ERROR (In Criminal Cases). 
 
 I. Where a writ of error has been allowed in a criminal 
 case, the justice or judge who allowed the writ, or any judge of 
 the court which entered the judgment to be reviewed, shall 
 have power to admit the plaintiff in error to bail for his ap- 
 pearance in such court on the determination of the proceed- 
 ings on the writ of error to abide by and obey any order that 
 may be made therein. The bond or recognizance for such 
 appearance shall be substantially in the following form: 
 
 "United States of America, ■) 
 District of j 
 
 We (here insert name of defendant), residing at 
 
 and (here insert the name of surety), residing at , 
 
 in the State of , acknowledge ourselves to 
 
 be jointly and severally indebted to the United States of 
 
 America in the sum of . . . .• dollars, lawful 
 
 money of the United States of America, to be levied of our 
 goods and chattels, lands and tenements, upon this condition : 
 
 That if the said , the defendant, upon whose 
 
 application a writ of error has been allowed by the United 
 States Circuit Court of Appeals for the Third Circuit and is 
 now pending, shall be and appear at the District Court of the 
 
 United States for-the district of 
 
 upon the determination of the proceedings on said 
 
 writ of error, and the receipt and filing of a mandate or other 
 process or certificate showing the disposition thereof by the 
 said Court of Appeals, or, within five days thereafter, to an- 
 swer and obey whatever final order or judgment, except as to 
 costs, shall be made in the premises, and not depart said court 
 without leave thereof, then this recognizance to be void ; other- 
 wise, to remain in full force and virtue. 
 
 (L. S.) 
 
 (L. S.) 
 
 (L. S.)" 
 
 Taken, acknowledged and subscribed, this 
 
 day of A. D., 191 .. , in open court. 
 
 Clerk of District Court. 
 
35 COURT OF APPEALS RULES. R i6 
 
 [S. C. Rule 36, Sect. 2. C. C A. Rule 35, in first, second 
 and eighth circuits; and Rule 37 in fifth and sixth. No cor- 
 responding rule in fourth, seventh or ninth.] 
 
 The questions discussed and disposed of in re Claasen, 140 U. S., 
 200 form the basis of this rule. See also Hudson v. Parker, 156 U. S., 
 277. Ballew V. United States, 160 U. S., 187. There is abundant au- 
 thority for a rule of this character. McKnight v. United States, 113 
 Fed., 451. 
 
 The defendant may at any time be arrested by his bail and sur- 
 rendered to the Marshal. Rev. Stat. Sect. 1018. And this may be 
 done wherever he is found, by the bail in person or by agent, and 
 with or without process ; it being the same as the arrest by the sheriff 
 of an escaping prisoner. Taylor v. Taintor, 16 Wall., 366. Where the 
 defendant is surrendered in this way an entry of it should be made 
 on the record. United States v. Stevens, 16 Fed., loi. Where the 
 defendant is about to abscond and his bail is insufficient he may be 
 required to give better security. Rev. Stat., Sect. 1019. United States 
 v. Ebbs, 49 Fed., 151. Where the defendant defaults, and his recog- 
 nizance is forfeited, the bail have no action against the defendant for 
 the amount of the recognizance in the absence of express agreement, 
 nor are they entitled to be subrogated to the rights of the Government. 
 United States v. Ryder, no U. S., 739. Where the recognizance has 
 been duly forfeited the Government has a perfect cause of action 
 against the bail in the proper forum, after due notice. Kirk v. United 
 States, 124 Fed., 324. 137 Fed., 753. But it cannot proceed on two 
 nihils in the district where the bail was given, the surety having his 
 residence in another. Ibid. 
 
 Nothing can be recovered on the bail bond, but the penalty and costs. 
 United States v. Broadhead, 127 U. S., 212. 
 
 The bail is not discharged by the arrest and detention of the de- 
 fendant in another jurisdiction. United States v. Marrin, 170 Fed., 
 476. Taylor v. Taintor, 16 Wall.,' 371. But an agreement to continue 
 the case indefinitely discharges the bail. Reese v. United States, 9 
 Wall., 13. And so does an agreement postponing the defendant's ap- 
 pearance. United States v. Backland, 33 Fed., 156; or allowing him 
 to leave the country. Reese v. United States, 9 Wall., 13. 
 
 The failure of the defendant to pay the fine imposed on an affirm- 
 ance of the sentence is a breach of the bond. Commonwealth v. Len- 
 hart, 233 Pa., 526. This may not be true as to non-payment of the 
 costs, in view of the terms of the bond as given above. 
 
 RULE 16. TRANSLATIONS. 
 
 I. Whenever any record transmitted to this court upon a 
 writ of error or appeal shall contain any document, paper, testi- 
 mony, or other proceeding in a foreign language, and the 
 record does not also contain a translation of such document, 
 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 
 
R 17 COURT OF APPEALS RULES. 36 
 
 it back to the inferior court, in order that a translation may 
 
 be there supplied and inserted in the record. 
 
 [S. C. Rule II. CCA. Rule 15, in force in all the cir- 
 cuits.] 
 
 A true translation of a document is the putting into English of 
 that which is the exact effect of the words used under the circum- 
 stances. Chatenay v. Brazilian Submarine Co., i Q. B. (1891), 79, 82. 
 
 Where pleadings, documents, or depositions are in a foreign lan- 
 guage they should be accompanied by a sworn translation before they 
 are filed. Sirattionds v. DuBarre, 3 Bro. C. C, 263. Lord Belmore v. 
 Anderson, 4 Bro., C. C. 90. It is no objection to the depositions that 
 they were taken in English before foreign Commissioners who were 
 not assisted by a sworn interpreter. Gilpins v. Consequa, i Pet., C. C, 
 8s. Amory v. Fellowes, 5 Mass., 219. Where the correctness of a 
 translation is disputed by a witness whose depositions are being taken, 
 the question is for the Court when the case conies up. Foster v. Glad- 
 stone, 12 W. R., 525. Where an interpreter is used the depositions 
 must be taken down as the testimony of the witness is translated by 
 him. Euberweg v. La Compagnie Genl. Transatlantique, 35 Fed., 530. 
 A deposition taken and returned in a foreign language may be trans- 
 lated into English before or at the trial. 13 Cycl., 983. 
 
 RULE 17. FILING RECORDS, DOCKETING CASES 
 AND ENTERING APPEARANCES. 
 
 I. The plaintiff in error or appellant shall file the record 
 of the case and cause it to be docketed by the clerk (a) of 
 this court on or before the return day of the citation (b), 
 whether in vacation or in term time ; but for good cause 
 shown (c) the justice or judge who signed the citation, or 
 any circuit or district judge (d), may extend the return day 
 (e) thereof, the order for extension to be filed with the clerk 
 of this court. 
 
 [S. C Rule 9, Sect, i, clause i. C. C A. Rule 16, Sect, i, 
 clause I, in force with variations in all the circuits.] 
 
 (a) It is the return and the depositing of the record in the clerk's 
 office that keeps alive the jurisdiction of the appellate court. Credit 
 Co. V. Arkansas Central Railway, 128 U. S., 258. Caillot v. Deetken, 
 113 U. S., 215. Hewitt V. Filbert, 116 U. S., 142. Hill v. Chicago & 
 Evanston R. R., 129 U. S., 170, 174. Evans v. State Bank, 134 U. S., 
 330. Green v. Elbert, 137 U. S., 615. Where therefore no return of 
 the transcript has been made, either before or during the term next 
 succeeding the allowance of the writ of error or appeal, the appellate 
 court acquires no jurisdiction, and the case must be dismissed. Hill 
 v. Chicago & Evanston R. R., 129 U. S., 170. Wauton v. DeWolf, 142 
 U. S., 138. Jacobs v. George, 150 U. S., 415. But where there has 
 been such a return, the docketing of the case after that is a mere 
 matter of procedure and may be allowed after the term, provided the 
 cause in the meantime has not been docketed and dismissed. Edwards 
 V. United States, 102 U. S., 575. Green v. Elbert, 137 U. S., 615, 621. 
 
37 COURT OF APPEALS RULES. R 17-n 
 
 The record, in other words, is in season if filed at any time during the 
 return term, provided there has been no previous motion to dismiss. 
 Nashua & Lowell R. R. v. Boston & Lowell R. R., 61 Fed., 237. It 
 does not matter that the mere return day has passed. Andrews v. 
 Thum, 64 Fed., 149. West Chicago R. R. v. Ellsworth, ^^ Fed., 664. 
 
 (&) A citation is to be made returnable not exceeding thirty days 
 from the day of- signing it. Rule 14, Sect. 6, supra. The case should 
 therefore be docketed and the record filed by that time, in order to 
 keep within the above rule. 
 
 (c) The rules with regard to the return day and the filing of the 
 transcript on or before that date are directory, and it is within the 
 sound discretion of the court to relieve a party who has not complied 
 therewith. Florida v. Charlotte, &c. Co., 70 Fed., 883. Thus a dis- 
 missal has been refused where the transcript was a day late, an effort 
 having been made to file it the day before, but the clerk's office not 
 being open. Farmers &c. Co. v. Chicago &c. R. R., 73 Fed., 314; or 
 where there has been a confusion between, the return day of the cita- 
 tion and of the writ. Town of Oilman v. Fernald, 141 Fed., 940; or 
 where the failure to file has been due to th% fraud of the opposite 
 party; or to an order of the lower court; or to the contumacy of the 
 clerk. Ableman v. Booth, 21 How., 506. United States v. Gomez, 3 
 Wall., 752. Grigsby v. Purcell, 99 U. S., 505. Green v. Elbert, 137 U. 
 S., 615, 621. Even where the appellant delayed so long in filing the 
 record that it was impossible for him to file and furnish the opposite 
 party with printed copies and briefs, there is no ground for dismissing 
 the appeal if the record has been filed in time. Jones v. Mann, 72 Fed., 
 8s. 
 
 (d) Quaere; whether the time for filing the record can be extend- 
 ed by a district judge, who is not at the time an actual member of the 
 court of appeals. West v. Irwin, 54 Fed., 419. 
 
 (e) An order extending the filing of the record made after the 
 time has expired is ineffective. In re Alden Electric Co., 123 Fed., 415. 
 
 2. If the plaintiff in error or appellant shall fail to com- 
 ply 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 have it dismissed (a), whether in 
 term time or vacation, upon due proof of notice (Z?) 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 citation (c), and that the writ of 
 error or appeal was duly sued out or allowed; 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 dismissed under this 
 section of this rule, unless upon special order of the court ((f). 
 
 [S. C. Rule 9, Sect, i, clause 2. C. C. A. Rule 16, Sect, i, 
 clause 2, in force in substance in all the circuits. In the fourth 
 circuit it is Sect. 2.] 
 
R 17-n COURT OF APPEALS RULES. 38 
 
 (a) The purpose of the rule is to enable the defendant in error or 
 appellee to secure a dismissal when the writ of error or appeal is not 
 being diligently prosecuted, or was not sued out in good faith. Suther- 
 land V. Pearce, 186 Fed., 783. The defendant in error or appellee can- 
 not docket the case and have it dismissed unless the plaintiiif in error 
 or appellant is in default. Hartshorn v. Day, 18 How., 28. And if the 
 plaintiff in error dockets the case in time, the docketing stands notwith- 
 standing the motion to dismiss. Davies v. Corbin, 113 U. S., 687. 
 
 (b) By Rule 19, Sect. 9, infra, notice of a motion to dismiss is 
 required in all cases except where it is otherwise provided. The notice 
 must be served long enough before the motion is heard to enable the 
 opposite party to be present and contest it if he so desires. Davidson v. 
 Lanier, 131 U. S., Ixxii. It must also specify the time when the motion 
 will be made. Glenny v. Langdon, 94 U. S., 604. 
 
 (c) It is ground for dismissal at the instance of the appellee, when 
 the appellant has failed to enter the appeal and file a transcript, on or 
 before the return of the citation, as provided in the first section of the 
 rule. Wong Sang v. United States, 144 Fed., 968. But where the 
 transcript was filed within the time specified in the citation, but after 
 the return day of the writ of error, which was not made returnable, as 
 it should have been, at the same time, and the case has not been carried 
 over the term, it will not be dismissed. Town of Oilman v. Fernald, 
 141 Fed., 940. 
 
 (d) The plaintiff in error or appellant is not barred by a dismissal 
 from taking a second appeal, provided it is taken within the period 
 limited by law. Steamer Virginia v. West, 19 How., 182. United 
 States V. De Pacheco, 20 How., 261. 
 
 3. Instead of having the case docketed for the purpose of 
 having it dismissed under the provisions of the second sec- 
 tion of this rule, the defendant in error or appellee, on pay- 
 ment of the usual fees, may file the record and cause the 
 case to be docketed by the clerk, and if the record be iiled 
 and the case docketed, either by the plaintiff in error or 
 appellant, within 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 argu- 
 ment. 
 
 [S. C. Rule 9, Sect. 2. C. C. A. Rule 16, Sect. 2 (Sect. 3 in 
 fourth circuit), substantially the same in all the circuits.] 
 
 The clerk is not bound to docket a case until his fees are paid or 
 secured, and where this is not done the case will be dismissed. Owings 
 V. Tierman, 10 Pet., 24. Rensselaer v. Watts, 7 How., 784. Nor will 
 it be reinstated upon a bond being subsequently filed. Selma & Meri- 
 dian R. R. V. Louisiana National Bank, 94 U. S., 253. But the case 
 will not be dismissed where the omission has been remedied before 
 the motion to dismiss is made. Edwards v. United States, 102 U. S., 
 575. The present practice is to make a deposit of a certain sum with 
 the clerk. Green v. Elbert, 137 U. S., 615, 622. 
 
 4. On the filing of the record the appearance of the 
 counsel for the party docketing the case shall be entered, and 
 
39 COURT OF APPEALS RULES. R i8 
 
 on or before the return day of the citation the counsel for the 
 appellee or defendant in error shall also enter [an] appearance 
 for the appellee or defendant in error. 
 
 [S. C. Rule 9, Sect. 3. C. C. A. Rule 16, Sect. 3 (Sect. 4 in 
 fourth circuit), in force in substance in all the circuits.] 
 
 The purpose of the rule is to have some attorney of the court re- 
 sponsible for the prosecution of the case. Hurley v. Jones, 97 U. S., 318. 
 
 RULE 18. DOCKET AND ARGUMENT LISTS. 
 
 1. Upon the filing of the record in any case by the plain- 
 tiff 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; 
 such docket shall have all its cases arranged in their proper 
 chronological order. 
 
 2. The clerk shall prepare and cause to be printed, previous 
 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 
 chronological order of docketing the same, subject, however, 
 to the following system of grouping: The first group shall be 
 composed of the cases in which all the circuit judges shall be 
 competent to sit; the second, of the cases in which all the 
 circuit judges except the youngest in commission shall be 
 competent to sit; the third, of the cases in which all the 
 circuit judges except the next to the youngest in commis- 
 sion shall be competent to sit; and the fourth, of the cases 
 in which all the circuit judges except the oldest judge in 
 commission shall be competent to sit. 
 
 [C. C. A. Rule 17. The rules in the different circuits differ 
 with regard to the making up and the call of the argument list 
 or calendar. They will be found in 150 Fed., xli, et seq., for 
 all the circuits except the fourth and the eighth; and in 193 
 Fed., xi, for the fourth; and in 188 Fed., xx for the eighth 
 circuit; and must be there consulted, if there is occasion to 
 know the exact terms in each instance.] 
 
R 19 COURT OF APPEALS RULES. 40 
 
 RULE 19. ARGUMENTS, CONTINUANCES AND 
 DISMISSALS. 
 
 1. The cases in the Argument List shall be called for argu- 
 ment at each term, or adjourned term, and cases shall be 
 argued on call unless the court shall for good cause other- 
 wise order. 
 
 2. If the defendant in error or appellee fails to appear 
 when his case is called for argument (a), the court may 
 proceed to hear the argurnent on the part of the plaintiff 
 in error or appellant and to give judgment according to the 
 right of the case (b). 
 
 [S. C. Rule 17. The second section of this rule appears as 
 one or other section of C. C. A. Rule 22, in force under that 
 number in all the circuits.] 
 
 (a) This means the time when called for actual argument, and not 
 merely the time of going over the docket to see what cases are ready. 
 Lem Hing Dun v. United States, 49 Fed., 145. 
 
 (6) The judgment is as conclusive as if there was an actual ap- 
 pearance and argument. United States v. Yates, 6 How., 60s, 608, 
 
 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. 
 
 [S. C. Rule 18. C. C. A. Rule 22, in force in all the cir- 
 cuits under different numbered sections'.] 
 
 5. Where no counsel appears for the plaintiff in error 
 or appellant, and no brief has been filed for him, the defend- 
 ant in error or appellee may have the writ of error or appeal 
 dismissed at the cost of the defaulting party. 
 
 [S. C. Rule 16. It also appears as one or other section of 
 C. C. A. Rule 22, in force in all the circuits. See also Rule 
 24, Sect. 4, infra.] 
 
 It was early held that where there was no appearance for the plaintiff 
 in error, the defendant in error might have the plaintiff called and 
 dismiss the writ of error; or he might have the record opened and 
 pray for an affirmance. Montalet v. Murray, 3 Cranch, 249. And to 
 the same effect are Portland Co. v. United States, 15 Wall., i, Ryan 
 V. Koch, 17 Wall., 19, and Fitch v. Richardson, 147 Fed., 196. Where 
 an appearance which has been entered is withdrawn, the writ may be 
 dismissed or the judgment affirmed under this rule. McGuire v. Com- 
 monwealth, 3 Wall., 382, 387. 
 
 The Court may dismiss for failure to file a brief, even where the 
 delay was due to a stipulation between the parties. Missouri K. & T. 
 
41 COURT OF APPEALS RULES. R 19 
 
 Co. V. Kidd, 146 Fed., 499. A motion to open the case and permit a 
 brief to be filed comes too late after an affirmance for want of an 
 appearance and brief, and an adjournment of the session. Watterson 
 V. Payne, 154 U. S., 534- 
 
 6. If a case is called for argument at two terms suc- 
 cessively, 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 appellant unless a sufficient cause is shown 
 for further postponement. 
 
 [S. C. Rule 19. It also appears as Rule 22, Sect. 6, in the 
 first circuit, and as Rule 17, Sect. 3 in the fourth ; and as the 
 last half of Rule 17 in the others, except the seventh and ninth, 
 where it is not found in any form.] 
 
 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 ca^e 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 agreement filed; but no mandate or other pro- 
 cess shall issue without an order of the court. 
 
 [S. C. Rule 28. C. C. A. Rule 20, in force in all the cir- 
 cuits.] 
 
 8. Cases may also be dismissed in accordance with the 
 second section of Rule 17 (a), the first section of Rule 23 
 (b), and the fourth section of Rule 24 (c) of this court. 
 
 (a) That is to say by docketing and having the case dismissed 
 where the plaintiff in error or appellant has failed to file the record 
 on or before the return day; (6) for failure of plaintiff in error or 
 appellant to pay the clerk upon ten days' notice of the estimated cost 
 of printing the record; (c) or where the plaintiff in error or appellant 
 is in default in filing his brief. 
 
 The court may dismiss for failure to file a brief even where the delay 
 was due to a stipulation between the parties. Missouri K. & T. Co. 
 V. Kidd, 146 Fed., 499 ; nor will additional time to print the record or to 
 file and serve briefs, as required by the rules, be granted where nothing 
 will be gained therefrom but delay. Matsumura v. Higgins, 187 Fed., 
 601. 
 
 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. 
 
R 20 COURT OF APPEALS RULES. 42 
 
 [S. C. Rule 6, Sect. 3. C. C. A. Rule 21, Sect. 3, in all the 
 circuits except the first, where it is Sect. 4.] 
 
 Reasonable notice must be given, that is to say, a long enough time 
 before the motion is heard to enable the opposite party to contest it, 
 if he so desires. Davidson v. Lanier, 131 U. S., Ixxii. The notice must 
 specify the time when the motion will be made. Glenny v. Langdon, 
 94 U. S., 604. 
 
 RULE 20. CERTIORARI. 
 
 I. No certiorari for diminution of the record (a) will' be 
 awarded in any case, unless a motion therefor shall be made in 
 writing, 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 must be made at the first term 
 .of the entry of the case; otherwise, the same will not be 
 granted, unless upon special cause shown to the court, account- 
 ing satisfactorily for the delay (b). 
 
 [S. C. Rule 14. C. C. A. Rule 18, in force by that number 
 in all the circuits.] 
 
 (a) A certiorari is the proper remedy where there are alleged de- 
 ficiencies in the record. Hudgins v. Kemp, i8 How., 530, 534. The Rio 
 Grande, 19 Wall., 178, 188. United States v. Davenport, 142 U. S., 
 704. The American Construction Co. v. Jacksonville Railway, 148 U. 
 S., 372, 380. Flickinger v. Bank, 145 Fed., 162. Where the defect is 
 apparent the appellate court may award the writ of its own motion. 
 Morgan v. Curtenius, 19 How., 8. Sweeney v. Lomme, 22 Wall., 208. 
 But it cannot be used to correct errors which exist in the record as it 
 stands in the Court below. Hoskin v. Fisher, 125 U. S., 21;^ 224. 
 Goodenough Mfg. Co. v. Rhode Island Mfg. Co., 154 U. S., 635 ; nor to 
 introduce additional facts not shown in the findings. United States v. 
 Adams, 9 Wall., 661 ; nor is it the proper remedy where the clerk has 
 failed to sufficiently athenticate the record. Hodges v. Vaughan, 19 
 Wall., 12. Neither will it be granted to supply an omission in a bill 
 of exceptions due to the party's own laches. New York & New England 
 R. R. V. Hyde, 56 Fed., 188. Hume v. Bowie, 148 U. S., 245, 253. 
 Kerrch v. United States, 171 Fed., 365. 
 
 Defects in the transcript cannot be supplied by reference to the rec- 
 ord on appeal in another court. South Carolina v. Wesley, 155 U. S., 
 S42. Nor can the transcript in a former appeal in the same case be 
 taken without a further certificate. Merriman v. Chicago &c. R. R., 
 120 Fed., 240. 
 
 A return to the certiorari may be made by the clerk of the lower 
 court instead of the judge. Stewart v. Ingle, 9 Wheat., 526. 
 
 (b) A certiorari on suggestion of a diminution of the record will 
 be awarded even after the term where the delay is satisfactorily ac- 
 counted for. Clark v. Hackett, i Black., 77. Stearns v. United States, 
 4 Wall., I. 
 
4:'» COURT OF APPEALS RULES. R 21 
 
 RULE 21. DEATH OF A PARTY (a) 
 
 1. Whenever, pending a writ of error or appeal in this 
 court, either party shall die (b), the proper representatives 
 in the personalty or realty of the deceased party, according 
 to the nature of the case, may voluntarily come in and be 
 admitted parties to the suit, and thereupon the case shall be 
 heard and determined as in other cases ; and if such repre- 
 sentatives 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, 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 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. 
 
 [S. C. Rule 15, Sect. i. C. C. A. Rule 19, Sect, i, in force 
 in all the circuits.] 
 
 (o) This rule is based on Act March 3, 1875, Sect. 9. 18 Stat., 473. 
 Prior to this enactment the practice was to apply to the court below 
 to revive the suit in the name of the representatives of the deceased 
 party. McClane v. Boon, 6 Wall., 244. 
 
 (&) If one of several plaintiffs or defendants dies before or after 
 an appeal is taken and the cause of action is one that survives as to 
 the rest, the survivors may prosecute the appeal alone, unless upon 
 notice the representatives of the deceased party apply to join. Moses 
 v. Wooster, 115 U. S., 28s. McKinney v. Carroll, 12 Pet, 66, 71. But 
 this cannot be done where the cause does not survive. Dolan v. Jen- 
 nings, 139 U. S., 385. Whether a suit survives depends on the nature 
 of the action. Schreiber v. Sharpless, no U. S., 76. And where the 
 cause of action does not arise under a law of the United States it is 
 governed by that of the State. Martin v. Baltimore & Ohio R. R., 
 151 U. S., 673. Hence -a writ of error in an action, the cause of which 
 does not survive either to heirs or personal representatives by the law 
 under which it is brought, abates by the death of the person who 
 alone was entitled to maintain the action. Ibid. Where the plaintiff 
 below was merely a nominal party, and the record shows that the 
 writ of error is prosecuted by the real party in interest, it will be 
 allowed to stand, without the representatives of the deceased party 
 having been brought in. Amadeo v. Northern Assur. Co., 201 U. S., 
 194. The administrator of the domicile of the deceased party may 
 be substituted, although appointed in a different state from that where 
 suit is brought. Noonan v. Bradley, 12 Wall., 121. 
 
 2. When the death of a party is suggested, and the repre- 
 sentatives of the deceased do not appear within ten days after 
 
R 21 COURT OF APPEALS RULES. 44 
 
 the expiration of such sixty days, and no measures are taken 
 by the opposite party within that time to compel their ap- 
 pearance, the case shall abate. 
 
 [S. C. Rule 15, Sect. 2. C. C. A. Rule 19, Sect. 2, in force 
 in all the circuits.] 
 
 Where the representatives of the deceased party are given the oppor- 
 tunity, but fail to appear the writ of error will abate. Phillips v. Pres- 
 ton, II How., 294. Barribeau v. Brant, 17 How., 43, 46. 
 
 3. When either party to a suit in a circuit or district court 
 of the United States shall desire to prosecute a writ of error 
 or appeal to this court, from any final judgment or decree 
 rendered in the circuit or district 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 jurisdiction of the 
 court which rendered such judgment or decree, so that the 
 suit could not be revived in that court, and that the said party 
 had a proper representative in some State or Territory of the 
 United States, or in the District of Columbia, and stating 
 therein the name and character of such representative, and 
 the State or Territory or District in which such representa- 
 tive resides; and upon such suggestion 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 errone- 
 ous; provided, however, that a proper citation reciting the 
 substance of such order shall be served upon such representa- 
 tive, either personally or by being left at his residence, at 
 
45 COURT OF APPEALS RULES- R 22-23 
 
 least thirty 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 pro- 
 vided 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, 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 there- 
 upon the case shall proceed, and be heard and determined as 
 in other cases. 
 
 [S. C. Rule 15, Sect. 3. C. C. A. Rule 19, Sect. 3, in force 
 in all the circuits.] 
 
 RULE 22. MOTIONS. 
 
 1. All motions tp 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 shall be allowed to the argu- 
 ment of a motion, and no more, without special leave of the 
 court, granted before the argument begins. 
 
 [S. C. Rule 6, Sects, i and 2. C. C. A. Rule 21, Sects. 
 I and 2, the same in all the circuits but the first, where the 
 sections are 2 and 6.] 
 
 Reasonable notice must be given of a motion to dismiss. Rule 19, 
 Sect. 9, supra. Davidson v. Lanier, 131 U. S., Ixxii. Glenny v. Lang- 
 don, 94 U. S., 604. 
 
 RULE 23. PRINTING AND DISTRIBUTING 
 RECORDS (a). 
 I. It shall be the duty of the clerk, immediately 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 {b), 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 or more of the counsel a written 
 
R 23 .COURT OF APPEALS RULES. 46 
 
 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 he printed (c). 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 pre- 
 paring, 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. 
 [S. C. Rules 8 and 10. C. C. A. Rule 23, in force under 
 different sections in all the circuits.] 
 
 (a) The printing as well as the authentication of the record on 
 appeal is now covered by the following Act of Congress, which must 
 be, regarded as modifying the present rule: 
 
 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 cir- 
 cuit 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 office 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 iDy 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 argu- 
 ment : Provided, That either the court below or the circuit court of 
 appeals may order any original document 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 typewritten 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 
 
47 COURT OF APPEALS RULES. R 23-n 
 
 Supreme Court, if there have been at the time of fiUng the record in 
 the court below 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 transcript for such part 
 thereof as is included in said printed record 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 transmit 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 required. 
 Approved, February 13, 1911. 36 Stat., 901. 
 
 (b) In case of doubt the attorney for the appellant may be called 
 on by the clerk to indicate what should go into the record. Burnham v. 
 Railway, 87 Fed., 168. Penn. Co. v. Railway, 55 Fed., 131. 
 
 (c) When requested to insert a matter by one party and to leave 
 it out by the other, the court may be applied to for directions. Hoe v. 
 Kahler, 27 Fed., 145. 
 
 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. 
 
 (b) The pleadings upon which the case was tried. 
 
 (c) The bill of exceptions. 
 
 (d) The motion and reasons for judgment non obstante 
 veredicto, if any. 
 
 (e) The opinion of the court below, if any. 
 (f.) The charge to the jury, if any. 
 
 (g) The verdict of the jury, if any. 
 (h) The judgment entered, 
 (i) The assignments of error. 
 In appeals — 
 
 (a) The docket entries. 
 
 (b) The pleadings on which the case was heard and 
 determined. 
 
 (c) The evidence, if any, on which it was heard and deter- 
 mined. 
 
R 23 COURT OF APPEALS RULES. 48 
 
 (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. 
 
 (f) 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 con- 
 form 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 office, 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. 
 
 See Rule 14, Sects. 2, 3, 4, S, and 7, and notes, supra, as to what is 
 to be included in the record as returned and certified. 
 
 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. 
 
 By section 8 of this rule, infra, where the record or any part thereof 
 has been printed in the court below, it may be embodied in and used 
 as the record in the Court of Appeals, provided it complies in other 
 respects with the requirements. And where the record is so accepted 
 and used, the cost of printing is taxable against the losing party. Jayne 
 V. Loder, 153 Fed., 739. See also Act Feb. 13, 1911, Sect, i, 36 Stat., 
 901, quoted above under the first section of this rule. 
 
 5. If the actual cost of printing the record and the clerk's 
 fee of twenty-five cents per page (a) for preparing the 
 record for the printer, indexing the same, supervising the 
 printing and distributing the copies, shall be less than the 
 amount estimated and paid, the clerk shall refund the differ- 
 ence 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. 
 
 (o) This is the fee fixed by Rule 29, Sect. 7, infra; and is held to 
 be still collectible, notwithstanding the Act of Feb. 13, igii, 36 Stat., 
 901, for the service of indexing. Colt's Mfg. Co. v. New York Goods 
 Co., 186. Fed., 625. 
 
49 COURT OF APPEALS RULES. R 23 
 
 6. In case of reversal, affirmance or dismissal, with costs 
 (a), the actual cost paid for printing the record (b) by the 
 party in whose favor costs are awarded, and the clerk's fee 
 for supervising 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. 
 
 [S. C. Rule 10, Sect. 7. C. C. A. Rule 23, in force in 
 varying form and different numbered sections in all the cir- 
 cuits.] 
 
 (a) See Rule 29, Sects, i, 2 and 3, and notes, infra. 
 
 (b) An established practice of printing the record and taxing the 
 expense as part of the costs has all the force of a rule of court. De- 
 troit Heating Co. v. Kemp, 182 Fed., 847. The cost of printing is tax- 
 able against the losing party, although the printing was done at the 
 instance of the plaintiff in error and not the clerk, where the record 
 as so printed was accepted by the cleric and no timely objection made. 
 Jayne v. Loder,, 153 Fed., 739. The printing of unnecessary parts of 
 the record, however, will be charged against the party who is respon- 
 sible for it, whether successful or not. De Groot v. United States, S 
 Wall., 419, 427. Ball & Socket Fastener Co. v. Kraetzer, 150 U. S., 
 Ill, 118. Railway v. Stewart, 95 U. S., 279, 284. United States Sugar 
 Refinery v. Providence &c. Co., 62 Fed., 375. Eastman Co. v. Getz, 84 
 Fed., 458. Nederland Life Ins. Co. v. Hall, 86 Fed., 741. Ecaubert v. 
 Appleton, 67 Fed., 917. And the court will take proof when necessary 
 to fix the responsibility. United States Sugar Refinery v. Providence 
 &c. Co., 62 Fed., 375. But the cost of printing briefs is not included. 
 Ex parte Hughes, 114 U. S., 548. Kursheedt Mfg. Co. v. Naday, 108 
 Fed., 918. Lee Injector Co. v. Penberthy Injector Co., 109 Fed., 964. 
 
 7. Each printed record shall show, by a note . or memor- 
 andum, the time when each pleading or document was filed, 
 and shall contain at the tops of its pages running titles of its 
 contents. 
 
 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 (a) ; 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 [Sect. 7], for preparing the 
 record for the printer, indexing (b) the same, supervising 
 the printing, and distributing the copies thereof. 
 
R 24 COURT OF APPEALS RULES. 50 
 
 (a) See Act. Feb. 13, 1911, 36 Stat., 901, quoted above in note (o) 
 to section i of this rule. Where an appeal has been taken by the de- 
 fendant the plaintiff is entitled to demand payment of the cost of print- 
 ing the record, used at the hearing, which has been taxed as part of 
 the costs against the defendants, before furnishing the latter with copies 
 for use in making up the record for appeal.. Parsons Non-skid Co. v. 
 Willis Co., 192 Fed., 47. 
 
 (&0 A fee of 25 cents per page for indexing may still be charged, 
 notwithstanding the Act of Feb. 13, 191 1, 36 Stat., 901. Colt's Mfg. 
 Co. V. New York Goods Co., 186 Fed., 625. 
 
 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 unless 
 he removes the remaining copies of the record and briefs 
 within ten days after notice so to do, the same will be de- 
 stroyed. 
 
 RULE 24. BRIEFS (a). 
 
 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 
 delivered by the clerk to such counsel between thirty days 
 and sixty days before the first day of such 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 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 (b), in the order here stated: 
 
 (a) The names of the parties and the nature of the pro- 
 ceedings. 
 
 (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. 
 
51 COURT OF APPEALS RULES. R 24 
 
 (d) A concise abstract or statement of the case. 
 
 (e) The assignments of error relied on (c), 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 par- 
 ticular page of the record where the exception may be found. 
 (d). 
 
 (f) Argument 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 (;e). 
 
 3. At least five days before the case is called for argu- 
 ment, the counsel for the defendant in error or appellee shall 
 file with the clerk twenty printed copies of his brief, and give 
 not less than five copies thereof to the counsel for the plain- 
 tiff in error or appellee (/). His brief shall be of a like 
 character with that required of the plaintiff in error or appel- 
 lant, 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, according to this rule, a plaintiff in error or an 
 appellant is in default, the case may 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 adversary, and by 
 special leave of the court (g). 
 
 5. 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 argu- 
 ment is filed, the adverse party will be entitled to be heard by 
 two counsel. 
 
 [S. C. Rule 21. CCA. Rule 24, substantially the same 
 in all the circuits.] 
 
 (a) On the general subject of briefs, see 2 Cyc, 1013-1025. Printed 
 briefs are evidently contemplated, although the cost of printing them 
 cannot be taxed as costs. Ex parte Hughes, 114 U. S., 548. Kursheedt 
 Mfg. Co. V. Naday, 108 Fed., 918. Lee Injector Co. v. Penberthy In- 
 jector Co., 109 Fed., 964. Unglazed paper is required in the Supreme 
 Court, and the quotations must be printed in type easily read. Wis- 
 consin &c. R. R. V. Jacobson, 179 U. S., 287. 
 
 (b) Conformity with the rules with regard to briefs will be strictly 
 enforced. Lincoln v. Sun Vapor Street Light Co., 59 Fed., 756. An 
 
R 25 COURT OF APPEALS RULES. 52 
 
 impertinent or scandalous brief will be stricken from the fifes. Green v. 
 Elbert, 137 U. S., 615, 624. Smith v. Simpson, 140 Fed., 712. 
 
 (c) The court will not consider assignments not specified or dis- 
 cussed in the briefs. Western Union Tel. Co. v. Winland, 182 Fed., 
 493. Nor will an objection be considered in the brief where there is 
 no corresponding error assigned. Lincoln v. Sun Vapor Street Light 
 Co., 59 Fed., 756, 758. Aetna Indemnity Co. v. Crowe Coal Co., 154 
 Fed., S4S. 
 
 (,d) Davidson S. S. Co. v. United States, 142 Fed., 315. 
 
 {e) A submission will be set aside where this is not observed. 
 School Dist. V. Insurance Co., loi U. S., 472. 
 
 (/) Mailing of briefs to opposing counsel the prescribed time before 
 the argument is a sufficient compliance with the rule. Russo-Chinese 
 Bank v. National Bank of Commerce, 187 Fed., 80. 
 
 (g) See also Rule 19, Sect. S, supra. Where no brief is filed by 
 counsel for the plaintiff in error or appellant, the appeal may be dis- 
 missed. Portland Co. v. United 'States, 15 Wall., i ; or the record may 
 be opened and the judgment affirmed. Ryan v. Koch, 17 Wall., 19. 
 Fitch v. Richardson, 147 Fed., 196. Moline Trust Co. & Savings Bank 
 v. Wylie, 149 Fed., 734. The court may dismiss for failure to file a 
 brief, even where the delay was authorized by a stipulation between 
 the parties. Missouri K. & T. Co. v. Kidd, 146 Fed., 499. A motion 
 to open the case and permit the filing of a brief comes too late after 
 the judgment has been affirmed for want of an appearance and brief, 
 and the session has been adjourned. Waterson v. Payne, 154 U. S., 534. 
 
 RULE 25. ORAL ARGUMENTS (a). 
 
 1. The plaintiff in error or appellant in this court shall be 
 entitled to open and conclude the argument of the case. But 
 when there 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 each party on the 
 argument of a case. 
 
 3. Two hours (c) on each side will be allowed for the 
 argument, and no more, without special 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, always, that a fair opening of 
 the case shall be made by the party having the opening and 
 closing arguments. 
 
 [S. C. Rule 22. C. C. A. Rule 25, substantially the same, 
 except in the matter of time, in all the circuits. Reading at 
 length from briefs or reported cases is prohibited in the 
 seventh circuit, 150 Fed., cvi.] 
 
 (o) The Supreme Court Rules provide that cases may be submitted 
 on printed briefs without oral argument. Rule 20, Sect. i. And stipu- 
 
53 COURT OF APPEALS RULES. R 26-27 
 
 lations for submitting cases cannot be withdrawn except by consent or 
 leave of court for cause shown. Muller v. Dows, 94 U. S., 277. Aur- 
 recoechea v. Ba.ngs, no U. S., 217. But such a stipulation will not 
 be enforced against the protest of one of the parties in advance of the 
 case being reached in its order. Glen v. Fant, 124 U. S., 123. 
 
 (b) Unless there is a cross appeal, appellees cannot be heard except 
 in support of the decree below. Chittenden v. Brewster, 2 Wall., 191. 
 The Stephen Morgan, 94 U. S., 599. Loudon v. Taxing District, 104 
 U. S., 771. 
 
 (c) Two hours on a side is the rule in all the circuits but the sec- 
 ond, fiftli and ninth. In the second circuit, on writs of error, ad- 
 miralty appeals, appeals from the granting of preliminary injunctions, 
 and customs appeals, the time given is an hour on a side; and in other 
 cases an hour and a half. But where there are no difficult questions 
 of law, and the amount involved does not exceed five hundred dollars, 
 and in appeals and petitions for review in bankruptcy the time is half 
 an hour. In the fifth circuit the time is an hour on a side with thirty 
 minutes to plaintiff to reply. And in the ninth the time given is an hour 
 on each side. 
 
 RULE 26. OPINIONS OF THE COURT. 
 
 I. All written opinions delivered by the court shall be filed 
 by the clerk. 
 
 [S. C. Rule 25, Sect. 2. C. C. A. Rule 28 (Rule 26 in 
 seventh circuit), in force in all the circuits, with variations as 
 to printing and recording.] 
 
 RULE 27. REHEARING (a). 
 
 I. A petition for rehearing (b) a cause may be filed with 
 the clerk at any time within thirty days (c) 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 filing of the petition (d) ; 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 the immediate issue of a mandate or other 
 process in the nature of a procedendo (dd). The petition shall 
 be printed, shall briefly and distinctly state the reasons for a 
 rehearing (e), and shall be supported by the certificate of 
 counsel (/). 
 
 [S. C. Rule 30. C. C. A. Rule 29 (Rule 27 in seventh 
 circuit), in force in all the circuits.] 
 
R 27-n COURT OF APPEALS RULES. 54 
 
 {a) On the general subject of a rehearing, see 3 Cyc, 212-219. _ The 
 pendency of a petition for a. rehearing operates to prevent the judg- 
 ment or decree from becoming final, for the purpose of a writ of error 
 or appeal, until it is disposed of. Title Guaranty Co. v. General Elec- 
 tric Co., 222 U. S., 401. And the granting of a rehearing without re- 
 striction operates to vacate the judgment of the appellate court so 
 that the case stands as if no judgment had been entered. Hook v. 
 Mercantile Trust Co., 95 Fed., 41. Where a motion for a rehearing is 
 entertained and permitted to be argued, but not actually granted, and 
 the judges who hear the motion are equally divided, the previous de- 
 cision, even if a reversal, stands. Carmichael v. Eberle, 177 U. S., 63. 
 
 (&) A form of petition will be found in New Orleans v. Warner, 
 176 U. S., 92, and in People v. Pearson, 3 111. (Scamm), 406. 
 
 (c) The thirty day limitation is one of convenience only, and should 
 not be enforced where the ground on which a rehearing is asked is 
 that the authority on which the decision of the court was predicated 
 has been reversed. Unitype Co. v. Long, 149 Fed., 196. _ Ordinarily, 
 however, where the time allowed by the rule for an application for a 
 rehearing has expired, an application will not be entertained unless 
 counsel were not advised of the decision, or the ground of the applica- 
 tion could not have been ascertained within the time. Crabtree v. Mc- 
 Curtain, 66 Fed., i. 
 
 (d) Except for the extension granted by the rule, application would 
 have to be made during the term. Bushnell v. Crooke Mining Co., 150 
 U. S., 82. Kirchberger v. American Acetylene Co., 142 Fed., 169. It 
 must always be made before the case has been remitted to the court 
 below. Browder v. McArthur, 7 Wheat., 58. Sibbald v. United States, 
 12 Pet., 488. Washington Bridge Co. v. Stewart, 3 How., 413. Peck v. 
 Sanderson, 18 How., 42. But this may be remedied by recalling the 
 mandate. American Caramel Co. v. Mills, 162 Fed., 147. Cf. Ex parte 
 Crenshaw, 15 Pet., 119. 
 
 (dd) See Rule 30, infra. 
 
 (e) A petition for a rehearing should not consist of an argument, 
 only applicable in case a rehearing is granted. The Dago, 63 Fed., 182. 
 It is too late to raise a question for the first time on a petition for a 
 rehearing, or to present a theory in conflict with the original argument. 
 Merriman v. Chicago & East. 111. R. R., 66 Fed., 663. It is not enough 
 that the case is one of great importance, where there is no suggestion 
 that any consideration or authority entitled to weight has been over- 
 looked. Camfield v. United States, 67 Fed., 17. Nor will a rehearing 
 be granted on the ground that the record was imperfect when it appears 
 on examination that the matters left out presented nothing affecting 
 the result. Ambler v. Whipple, 23 Wall, 278. The existence of new 
 and material evidence will not be ground for a rehearing, which must 
 be had, if St all, on the record as it was made in the court below. Max- 
 well Land-Grant case, 122 U. S., 365. Gregory v. Pike, 67 Fed., 837, 
 852. Randolph v. Allen, 73 Fed., 23, 32. Where after discovered evi- 
 dence is urged as a ground for rehearing in admiralty (as it may be, 
 the case being de novo), it must be shown why it was not previously 
 ascertained. The Iron Chief, 63 Fed., 289. That the court misquoted 
 the evidence is not sufficient where this did not affect the result. Tor- 
 rent V. Duluth Lumber Co., 32 Fed., 229. A second application for a 
 rehearing on the same point on which a former application was re- 
 fused will npt be entertained. Williams v. Conger, 131 U. S., 390. A 
 request for the findings required in a bankruptcy case on appeal to 
 the Supreme Court should be made prior to a decision by the Court 
 
55 COURT OF APPEALS RULES. R 28 
 
 of Appeals, in anticipation that it may be adverse. Knapp v. Mil- 
 waukee Trust Co., 162 Fed., 675. Crucible Steel Co. v. Holt, 174 Fed., 
 127. So a request to certify Questions to the Supreme Court is too late 
 after a decision has been made. Wall v. Cox, 181 U. S., 244. 
 
 But the reversal of an atithority on which the decision of the court 
 was predicated is a good ground for a rehearing. Unitype Co. v. 
 Long, 149 Fed., 196. And so is the omission from the transcript of 
 that which was material to the decision. Ambler v. Whipple, 23 Wall., 
 278, 282; or where by reason of the failure to issue and serve a cita- 
 tion, the case was not properly before the court. Ex parte Crenshaw, 
 IS Pet., 119, 123; or where there is ground to modify the mandate, as 
 alleged. American Caramel Co. v. Mills, 162 Fed., 147. Novelty Glass 
 Mfg. Co. v. Brookfield, 172 Fed., 221. Exchange Mutual Ins. Co. v. 
 Warsaw-Wilkinson Co., 185 Fed., 487. 
 
 (/) The certificate of counsel required is that the petition 
 for a rehearing in their judgment is well founded. See New Orleans v. 
 Warner, 176 U. S., 92. Where there is no certificate the petition will 
 be denied. Hinds v. Keith, 57 Fed., 10. No reply by the opposite party 
 is allowed to the petition. Ambler v. Whipple, 23 Wall., 278, 282. 
 
 RULE 28. INTEREST. 
 
 I. In cases where a writ of error is prosecuted in this 
 court, and the judgment of the inferior court is 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 (a). 
 
 [S. C. Rule 23, Sect. i. C. C. A. Rule 30, Sect, i, (Rule 
 28 in seventh circuit), in force in all the circuits.] 
 
 (a) Before this rule, interest was allowed on judgments at the rate 
 of six per cent. Perkins v. Fournitjuet, 14 How., 328. The object of 
 the change was to put suitors in the Federal and State Courts on the 
 same footing in this respect. Hammenway v. Fisher, 20 How., 255, 
 25. Interest may be allowed against a foreign state, when a litigant, 
 the same as in other cases. Ex parte Colombia, 195 U. S., 604. It is 
 also to be allowed where judgment against a collector of customs for 
 moneys wrongly demanded on entries is affirmed. Schell v. Cochran, 
 107 U. S., 625. 
 
 Where there has been no allowance of interest by the appellate 
 court, none can be allowed in the court below, upon the case being 
 sent down. Himely v. Rose, 5 Cranch, 313, 317. The Santa Maria, 10 
 Wheat, 431, 442. Boyce v. Grundy, 9 Pet, 275, 290. In re Washing- 
 ton & Georgetown R. R., 140 U. S., 91. Green v. Chicago S. & C. R. R., 
 49 Fed., 907. People's Bank v. Aetna Insurance Co., 76 Fed., 548, SSO- 
 The Glenochil, 128 Fed., 963. Where there has been no allowance of 
 interest or damages it is the equivalent of a denial of both. Boyce v. 
 Grundy, 9 Pet., 275, 290. 
 
 Interest is confined to the debt, and does not extend to the damages 
 awarded for delay. The Perseverance, 3 Dall., 336. Neither is it to be 
 added to a judgmen-t for costs. People's Bank v. Aetna Ins. Co., 76 
 Fed., 548. 
 
R 28 COURT OF APPEALS RULES. 56 
 
 2. In all cases where a writ of error (a) shall delay 
 the proceedings on the judgment of the inferior court, and 
 shall appear to have been sued out merely for delay (b), 
 damages at a rate not exceeding ten per cent, (c), in addition 
 to interest, shall be awarded upon the amount of the judg- 
 ment. 
 
 [S. C. Rule 23, Sect. 2. C. C. A. Rule 30, Sect. 2 (Rule 
 28, in seventh circuit), in force in all the circuits.] 
 
 (a) The court has power to award damages for delay in the case 
 of an appeal, the same as a writ of error. Gibbs v. Diekma, 131 U. S., 
 clxxxvi. 
 
 (6) No damages can be awarded except for delay. Cotton v. Wal- 
 lace, 3 Dall., 302, 304. The remedy for delay is an award of damages 
 under the rule. The case cannot be dismissed upon that ground. Am- 
 ory V. Amory, gi U. S., 356. Damages will be imposed under the rule 
 where there appears to be no plausible ground for the appeal. Texas 
 & Pacific R. R. v. Volk, 151 U. S., 73. They will be awarded where a 
 case is carried up in disregard of the settled precedents of the cotirt. 
 Pennywit v. Eaton, 15 Wall., 382. But not where the law was not 
 settled at the time the writ of error was prosecuted, although it may 
 have become so since. McKee v. Rains, 10 Wall., 22. The case will 
 not be regarded as one which has been sued out for delay, where the 
 question involved is the construction of a state statute, which has not 
 been passed upon by the state courts and is fairly in doubt. Times 
 Dem. Pub. Co. v. Mozee, 136 Fed., 761. The court must be convinced 
 that the purpose of the writ of error or appeal was delay. McNeil v. 
 Holbrook, 12 Pet., 84. 
 
 In the following cases the penalty was imposed under various cir- 
 cumstances. Barrow v. Hill, 13 How., S4- Kilbourne v. State Sav. 
 Inst., 22 How., 503. Sutton v. Bancroft, 23 How., 320. Jenkins v. 
 Banning. Ibid, 455. Prentice v. Pickersgill, 6 Wall., 51 1. Campbell 
 V. Wilcox, 10 Wall., 421. Insurance Co. v. Huchbergers, 12 Wall., 164. 
 Hennessy v. Sheldon. Ibid, 440. Hall v. Jordan, 19 Wall., 271. Pey- 
 ton v. Heinekin, 131 U. S., ci. GiblDs v. Diekma, Ibid, clxxxvi. Whit- 
 ney v. Cook, Ibid cxcvii. Sire v. Ellithorpe Air Brake Co., 137 U. S., 
 S7g. Gregory Consolidated Mining Co. v. Starr, 141 U. S., 222. Wat- 
 terson v. Payne, 154 U. S., 534. 
 
 (c) The court cannot award more than ten per cent, damages, but 
 it can award less. West Wisconsin Railway v. Foley, 94 U. S., 100. 
 
 3. The same rule shall be applied to decrees for the pay- 
 ment of money in cases in equity (a), unless otherwise ordered 
 by this court. 
 
 4. In cases in admiralty^ damages and interest may be 
 allowed, if specially directed by the court (b). 
 
 [S. C. Rule 23, Sects. 3 and 4. C. C. A. Rule 30, Sects. 
 3 and 4 (Rule 28, in the seventh circuit), in force in all the 
 circuits.] 
 
 (a) The court may award damages for delay in the case of appeals 
 the same as writs of error, although the statute (Rev. Stat., Sect. loio) 
 
57 COURT OF APPEALS RULES. R 29 
 
 only speaks of the one, both being made subject by law to the same 
 rules. Rev. Stat, Sects. 10 and 12. Gibbs v. Diekma, 131 U. S., clxxxvi. 
 (6) Where there is no allowance of interest on affirmance, none can 
 be given by the lower court after the case is sent down. The Glenochil, 
 128 Fed., 963. 
 
 RULE 29. COSTS (a). 
 
 I. In all cases where any suit shall be dismissed (b) in 
 this court, except where the dismissal shall be for want of 
 jurisdiction (c), costs (d) shall be allowed to the defendant 
 in error or appellee, unless otherwise agreed by the parties. 
 
 [S. C. Rule 24, Sect. i. C. C. A. Rule 31, Sect, i (Rule 
 29, in seventh circuit), in force in all the circuits.] 
 
 (a) The state law may be followed with regard to costs, where 
 there is no Act of Congress which governs the case. Michigan Alumin- 
 ium Foundry Co. v. Aluminium Co., 190 Fed., 903. t)n petition for 
 a mandamus where there is simply a rule to show cause, costs will not be 
 allowed. In re Haight & Freese, 164 Fed., 688. 
 
 (6) For the various grounds on which a case may be dismissed, see 
 Rule 17, Sect. 2; Rule 19, Sects. 5, 6, 7, and 9; Rule 23, Sect, i; and 
 Rule 24, Sect. 4; and notes. 
 
 (c) Where the case is dismissed for want of jurisdiction, the court 
 ordinarily can give no costs. Burnham v. Rangeley, 2 Wood. & Minot, 
 417. Montalet v. Murray, 4 Cranch, 46. Mclver v. Wattles, 9 Wheat., 
 650. Strader v. Graham, 18 How., 602. Hornthall v. Collector, 9 
 Wall., 560. M. C. & L. M. Railway v. Swan, in U. S., 379. Citizens' 
 Bank v. Cannon, 164 U. S., 319, 324. If there is no jurisdiction there 
 is no power to do anything but to strike the case from the docket. 
 Mayor v. Cooper, 6 Wall., 247, 250. M. C. & L. M. Railway v. Swan, 
 III U. S., 379. No change in this respect has been made by Rev. Stat, 
 Sects. 823 and 983. Pentlarge v. KirlDy, 20 Fed., 898. But see United 
 States V. Treadwell, 15 Fed., 532. Cooper v. New Haven Steamboat 
 Co., 18 Fed., 588. Costs on appeal, however, even on dismissal for 
 want of. jurisdiction, will be given against the party who wrongly in- 
 voked the jurisdiction of the court below. Winchester v. Jackson, 3 
 Cranch, 514. Montalet v. Murray, 4 Cranch 46. Hornthall v. Collector, 
 9 Wall., 560. M. C. & L. M. Railway v. Swan, in U. S., 379. And 
 this is true even where the party is successful in the appellate court, 
 the reversal being due to the fault of such party in wrongfully in- 
 voking that jurisdiction. Blacklock v. Small, 127 U. S., 96. Torrence 
 V. Shedd, 144 U. S., 527. Cates v. Allen, 149 U. S., 451. Tennessee v. 
 Union Planters' Bank, 152 U. S., 454. Hanrick v. Hanrick, 153 U. 
 S., 192, 198. Southwestern Tel. & Telp. Co. v. Robinson, 48 Fed., 769. 
 Craswell v. Belanger, 56 Fed., 529. And where a necessary party de- 
 fendant has been omitted, the other defendant is entitled to his costs 
 on appeal. Gaylords v. Kelshaw, i Wall., 81. On motion to dismiss for 
 want of jurisdiction the defendant in error is also entitled to the costs 
 incident to the motion. Bradstreet v. Higgins, 114 U. S., 262; and an 
 attorney fee, such as is ordinarily allowed on the final disposition of a 
 case, will be given. Josslyn v. Phillips, 27 Fed., 481. Where the ap- 
 pellate court has jurisdiction of the order appealed from, the appellant 
 is entitled to costs on appeal if successful, even though the lower court 
 is directed to dismiss the bill for want of jurisdiction. Industrial & 
 Mining Guaranty Co. v. Electrical Supply Co., 58 Fed., 732. 
 
R 29 COURT OF. APPEALS RULES. 58 
 
 (d) Where costs are awarded on a dismissal it includes the actual 
 costs paid for printing the record by the party in whose favor costs are 
 awarded together with the clerk's fee for supervising the printing when 
 paid by such party. Rule 23, Sect. 6, supra. Nichols, Shepard & Co. 
 V. Marsh, 131 U, S., 401. Ferguson v. Dent, 46 Fed., 88. If the printed 
 record is unnecessarily prolix, the cost of the excess may be taxed 
 against the party responsible for it. United States Sugar Refinery v. 
 Providence Steam & Gas Pipe Co., 62 Fed., 375. No. costs can be al- 
 lowed however, for the printing of briefs. Ex parte Hughes, 114 U. S., 
 548. Kursheedt Mfg. Co. v. Naday, 108 Fed., 918. Lee Injector Co. v. 
 Penberthy Injector Co., 109 Fed., 964. 
 
 2. In all cases of affirmance (a) of any judgment 01 decree 
 in this court, costs (6). shall be allowed to the defendant in 
 error or appellee (c), unless otherwise ordered by the court 
 (d). 
 
 [S. C. Rule 24, Sect. 2. C. C. A. Rule 31, Sect. 2 (Rule 
 29, in seventh" circuit) J in force in all the circuits.] 
 
 (a) Costs will be given on affirmance, even though the decree is 
 sustained on other grounds than those assigned in the court below. 
 Post V. Vacuum Pump Co., 89 Fed., i. This is true of an affirmance 
 by a divided court, which although otherwise ineffective settles the 
 rights of the parties thereto. Westhus v. Union Trust Co., 168 Fed., 
 617. On an affirmance, an attorney fee of twenty dollars will be taxed. 
 Kansas City R. R. v. McDonald, 60 Fed., 522. Shillito Co. v. McClung, 
 66 Fed., 22, 
 
 (b) As to including the cost of printing, see Rule 23, Sect. 6, and 
 notes. And also notes under Sect, i, note (d) of the present rule, supra. 
 
 (c) Where there are several appellees who appear separately and 
 file separate briefs, separate costs should be taxed. Augusta Trust 
 Co. V. Federal Trust Co., 153 Fed., 157. 
 
 (d) Where both parties appeal and the decree is not disturbed, 
 neither party recovers costs. The Parkersburgh, 5 Blatchford, 247. 
 The Atlas, 10 Blatchford, 459. The William Cox, 9 Fed., 672. Where 
 costs are divided by the appellate court, only the ordinary taxable costs 
 incident to the litigation are meant. Kell v. Trenchard, 146 Fed., 245. 
 
 3. In cases of reversal (a) of any judgment or decree in 
 this court costs (b) shall be allowed to the plaintiff in error 
 or appellant, unless otherwise ordered by the court (c). The 
 cost of the transcript of the record (d) from the court below 
 shall be taxable in that court (e) as costs in the case. 
 
 [S. C. Rule 24, Sect. 3. C. C. A. Rule 31, Sect. 3, in all 
 the circuits except the first, where it is Rule 31, Sects. 3 and 4, 
 and the seventh, where it is Rule 29, Sect. 3. In the eighth 
 circuit the section is considerably amplified.] 
 
 (a) The rule in some jurisdictions, that the costs on a reversal are 
 to abide the event of the suit (Wright v. Small, S Binny, 204. Hamil- 
 ton V. Aslin, 3 Watts., 222. Smith v. Sharp, 5 Watts., 292. Lehigh Val- 
 ley R. R. V. McFarland, 44 N. J. Law, 674), does not obtain in the 
 Federal Courts. Berthold v. Burton, 169 Fed., 495. Jennings v. Bur- 
 ton, 177 Fed., 603. 
 
59 COURT OF APPEALS RULES. R 29-n 
 
 (b) When judgment is reversed with costs it includes all the costs 
 of the appeal no matter how or when taxable. Berthold v. Burton, 169 
 Fed., -495. But only the ordinary taxable costs incident to the litiga- 
 tion and not necessarily the expenses of a receivership. Kell v. Tren- 
 chard, 146 Fed., 245. 
 
 (c) Costs do not always follow in case of a reversal. Montalet v. 
 Murray, 4 Cranch, 46. The court has a certain discretion under the 
 rule. M. C. & L. M. Railway v. Swan, iii U. S., 379. Kell v. Trench- 
 ard, 146 Fed., 245. Where the appellant only succeeds in having the 
 decree modified in a minor particular neither party will be given costs. 
 New England R. R. v. Carnegie Steel Co., 75 Fed., 54. Packard v. 
 Lacing Stud Co., 70 Fed., 66. Northern Trust Co. v. Snyder, 77 Fed., 
 818. Mason v. Graham, 23 Wall., 261. Where also the decree in the 
 lower court is broader than the findings, the appellate court in cor- 
 recting the decree will allow no costs to either party. Shute v. Morley 
 Sewing Machine Co., 64 Fed., 368. Blair Camera Co. v. Eastman Co., 
 64 Fed., 491. Where the appellant is in default for delays, even though 
 successful, he will be given no costs. The Ethel, 66 Fed., 340. Nor 
 should costs be allowed on a reversal in bankruptcy when the petition 
 for review was delayed nearly six months, and the property has de- 
 preciated meantime. In re Endlar, 192 Fed., 762. Where a decree in 
 admiralty is reversed on new evidence, not previously accessible, 
 neither party being in fault, each party should pay his own costs on 
 appeal. The Oxford, 66 Fed., 590. Where a party took no appeal he 
 is not entitled to costs in the appellate court, whatever may be the 
 case in the court below. Pollard v. Reardon, 65 Fed., 848. Only the 
 costs of that party in whose favor the judgment is reversed are taxable. 
 Sully V. American National Bank, 179 U. S., 68. Where the Supreme 
 Court on error to a state court modifies, with costs to the defendant, 
 certain judgments of the state court in favor of the plaintiff, the de- 
 fendant, is entitled only to the costs in the Supreme Court, and the 
 plaintifif is still entitled to the costs awarded him by the original judg- 
 ment. Stevens v. Central National Bank, 168 N. Y., 560. 
 
 Upon a reversal for want of jurisdiction the court may make such 
 order in respect to costs as right and justice may require. M. C. & 
 L. M. Railway v. Swan, in U. S., 379, 388. Peper v. Fordyce, 119 
 U. S., 469. Where therefore on removal from a state court, the federal 
 court wrongly took jurisdiction, costs will be awarded against the party 
 by whom the jurisdiction was invoked. Cates v. Allen, 149 U. S., 451. 
 Hanrick v. Hanrick, 153 U. S., 192, 198. Southwestern Tel. & Telp. 
 Co. V. Robinson, 48 Fed., 769. Craswell v. Belanger, 56 Fed., 529. 
 Sneed v. Sellers, 68 Fed., 729. Tug River Coal Co. v. Brigel, 67 Fed., 
 625, 630. Where both parties are responsible for it the costs will be divid- 
 ed. Peper v. Fordyce, 119 U. S., 469. And where the question of juris- 
 diction is raised in the appellate court for the first time, full costs 
 will be given to the defendant in the lower court, but will be divided 
 in the court above. Tug River Coal Co. v. Brigel, 67 Fed.. 625. Where 
 the appellate court has jurisdiction over the order appealed from, the 
 appellant is entitled to costs on the appeal, even though the lower court 
 is directed to dismiss the case for want of jurisdiction. Industrial 
 & Mining Guaranty Co. v. Electrical Supply Co., 58 Fed., 732. And 
 where a necessary party defendant was omitted, the other defendant 
 was held entitled to costs on appeal, even though the case was remand- 
 ed with directions to dismiss the bill unless amended in a way which 
 would give jurisdiction. Gaylords v. Kelshaw, I Wall., 81. But where 
 the want of jurisdiction for failure of the record to show a diversity of 
 
R 29 COURT OF APPEALS RULES. 60 
 
 citizenship was raised for the first time on appeal, the reversal will ■ 
 be without costs. Newcomb v. Burbank, 181 Fed., 334. 
 
 (d) As to what the transcript should contain, see Rule 14, Sect. 2, 
 and notes, supra; and as to the costs of printing, see Rule 23," Sect. 
 6 and notes, supra. 
 
 Where counsel stipulate as to what part of the record is to be in- 
 cluded, it is the duty of the clerk to recognize it, and compensation 
 will only be allowed for that which is embraced in the stipulation. 
 Lamb Knit Goods Co. v. Lamb Glove & Mitten Co., 120 Fed., 267. 
 Where requested to insert a matter by one party and to leave it out by 
 another, the court below may be appealed to for directions. Hoe v. 
 Kahler, 27 Fed., 145. The clerk may refuse to certify where there are 
 palpable omissions. Nashua & Lowell R, R. v. Bost. & Lowell R. R., 
 61 Fed., 237, 243. 
 
 Exemplifications and copies of papers must have been actually used 
 at the trial or at least have been obtained for that purpose, to make 
 the costs of obtaining them taxable. Wooster v. Handy, 23 Fed., 49, 
 60. A copy of the stenographer's notes obtained by counsel for his own 
 convenience cannot be included. The William Branfoot, 52 Fed., 390, 
 395. Gunther v. Liverpool, &c. Ins. Co., 10 Fed., 830. Kelly v. Spring- 
 field Railway, 83 Fed., 183. Monahan v. Godkin, 100 Fed., 196. Nor 
 can the amount paid to the stenographer for a transcript, used by the 
 plaintiff in preparing the bill of exceptions on a former appeal, be 
 taxed. Pine River Logging Co. v. United States, 186 U. S., 279, 297. 
 
 (e) The cost of the transcript is to be taxed in the court below, 
 and not in the appellate court. Lee Injector Co. v. Penberthy Injector 
 Co., 109 Fed., 964. 
 
 4. Neither of the foregoing sections shall apply to cases 
 where the United States are a party; but in such cases no 
 costs shall be allowed in this court for (a) or against (b) 
 the United States. 
 
 [S. C. Rule 24, Sect. 4. C. C. A. Rule 31, Sect. 4, in all the 
 circuits except the first, where it is Rule 31, Sect. 5, and the 
 seventh, where it is Rule 29, Sect. 4.] 
 
 (a) The rule does not prohibit the allowance to the United States 
 if successful of costs in the court below. United States v. Southern 
 Pacific R. R., s6 Fed., 865. United States v. Sanborn, 135 U. S., 271. 
 
 (_b>) But there can be no judgment for costs under any circumstances 
 against the United States. Stanley v. Schwalby, 162 U. S., 255, 272. 
 
 5. When costs are allowed in this court (a), it shall be the 
 duty of the clerk to insert the amount 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 (c), 
 
 [S. C. Rule 24, Sect. 6. C. C. A. Rule 31, Sect. 5, in all 
 the circuits except the first, where it is Sect. 6, and the 
 seventh circuit, where it is Rule 29, Sect. 5.] 
 
61 COURT OF APPEALS RULES. R 29 
 
 (a) See the preceding sections of this rule, and notes. Also, Rule 
 23, Sect. 6 and notes, supra. 
 
 (fo) See Rule 30 and notes, infra. The court below is controlled 
 by the mandate. The Glenochil, 128 Fed., 963. And where costs are 
 awarded and judgment is rendered for them under the mandate, they 
 are beyond the control of the lower court. Scatcherd v. Love, 166 
 Fed., $2. The costs taxed on appeal and inserted in the mandate are 
 to be included in the decree of the court below, and an execution may 
 issue therefor. Corn Prodticts Co. v. Chicago Real Estate Co., 183 
 Fed., 63. It has been held, however, that to authorize an execution 
 for costs awarded by the Court of Appeals the mandate should con- 
 tain a special provision, directing execution to issue. American Trust 
 & Savings Bank v. Ziegler Coal Co., 165 Fed., 512. But while the 
 court below has no authority to modify the mandate, it has authority 
 to construe it ; and where the decree is affirmed "with costs of the 
 action," all the costs of the litigation will be given up to and including 
 the final decree, as well as any costs accruing afterwards. Persons 
 V. Wirgman, 140 Fed., 207. 
 
 (c) Costs taxed in the court of appeals without objection cannot 
 be oljjected to in the lower court after a remand. Fidelity & Deposit 
 Co. V. Expanded Metal Co., 183 Fed., 568. But a mandate fixing the 
 amount which the plaintiflF is entitled to recover does not prevent tlie 
 court below in its decree from including the costs of suit in that court. 
 New Orleans v. Gaines, 138 U. S., 595. 
 
 6. In all cases certified to the Supreme Court (a) or re- 
 moved thereto by certiorari (b) or otherwise, the fees of 
 the clerk of this court shall be paid before a transcript of the 
 record shall be transmitted to the Supreme Court (c). 
 
 [C. C. A. Rule 31, Sect. 6, in all the circuits except the 
 first, where it is Sect. 7; and the seventh, where it is Rule 
 29, Sect. 6.] 
 
 (a) Where the question of jurisdiction is certified nothing else can 
 be considered. Venner v. Great Northern Railway, 209 U. S., 24. A 
 question cannot be certified by the Court of Appeals after it has ac- 
 tually been decided by that Court. Wall v. Cox, 181 U. S., 244. 
 
 (&) As to the fees of the clerk in any case removed to the Supreme 
 Court by certiorari, the Act of February 13, iqii, Sect. 2, 36 Stat., 901, 
 controls. For the provisions of that Act, see Rule 23, Sect, i, note (a), 
 supra. 
 
 (c) The clerk where entitled to fees must be paid in advance. 
 Steever v. Rickman, 109 U. S., 74. Bean v. Patterson, no U. S., 401. 
 Hoysradt v. D. L. & W. R. R., 182 Fed., 88b. A writ of error or appeal 
 cannot be prosecuted in forma pauperis, either to the Supreme Court 
 or the Court of Appeals. Bradford v. Southern Railway, 195 U. S., 
 243. Taylor v. Adams Express Co., 164 Fed., 616. 
 
 7. In pursuance of the Act of Congress of February 19, 
 1897 (29 Stat. 536, c. 263), and of the order of the Supreme 
 Court of January 10, 1898, as amended February 28, 1898 
 (90 Fed. Rep. clxxi), the following table of fees and costs 
 IS established for this court (a) : 
 
R 29 COURT OF APPEALS RULES. 62 
 
 Docketing a case and filing the record $5-00 
 
 Entering an appearance 25 
 
 Transferring a case to the printed calendar i.oo 
 
 Entering a continuance 25 
 
 Filing a motion, order, or other paper 25 
 
 Entering any rule, or making or copying any record 
 
 or other paper, for each one hundred words . . .20 
 
 Entering a judgment or decree i-OO 
 
 Every search of the records of the court and certi- 
 fying the same i-OO 
 
 Affixing a certificate and a seal to any paper i.OO 
 
 Receiving, keeping, and paying money, in pursuance 
 of any statute or order of court, one per cent, 
 on the amount so received, kept and paid. . . . 
 Preparing the record for the printer, indexing the 
 same (b), supervising the printing and dis- 
 tributing the copies, for each printed page of 
 
 the record and index 25 (c) 
 
 Making a manuscript copy of the record (d), when 
 required by the rules, for each one hundred 
 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 five 
 
 dollars in the whole for any copy) i.oo 
 
 Attorney's docket fee 20.00 (e) 
 
 (a) The fees here are those established by the Supreme Court. 
 ISO Fed., cxxxix. 
 
 (6) The indexing is indivisible, as a separate matter, from the super- 
 vising, printing and distributing, and no provision being made for it 
 in the Act of February 13, 191 1, 36 Stat., 901, and it being important 
 to have comprehensive indices for all records, the clerk is entitled to 
 tvifenty-five cents a page, in consequence, the same as previously. Colt's 
 Mfg. Co. v. New York Goods Co., 186 Fed., 625. 
 
 (r) The clerk of the District Court can make no claim to this 
 fee. If he prints the record he is confined to the actual cost. Thorn- 
 ton V. Insurance Co.'s., 125 Fed., 250. Doherty's Accounts, Bowler's 
 Comp. Dec, 253. 
 
 And now by Act Feb. 13, 1911, Sect, i, 36 Stat, 901, the appellant or 
 plaintiff in error shall print, under such rules as the District Court 
 shall prescribe, and shall file with the clerk of the Court, of .Appeals, at 
 least twenty-five days before the case is called for argument, at least 
 
63 COURT OF APPEALS RULES. R 30 
 
 twenty-five printed transcripts of the record, and of such part or ab- 
 stract of the proofs as tlie rules of the Court of Appeals may require, 
 and in such form as the Rules of the Supreme Court may prescribe, 
 one of which printed transcripts shall be certified by the clerk of the 
 lower court, under his hand and the Seal of such court, and three copies 
 of such printed transcript shall be furnished to the adverse party twenty 
 days before the argument. And (Sect. 2), where a final judgment or 
 decree is sought to be reviewed on appeal, to or by a writ of error or 
 certiorari from the Supreme Court, and the record has been printed and 
 used in the court below, and substantially conforms to the printed record 
 in the Supreme Court, if twenty-five copies of the printed record in 
 addition to those provided in the first section of the act have been 
 lodged with the clerk below, at the time of filing the printed record, 
 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 ; and no 
 fees shall be allowed to the clerk of the court below in the preparation 
 of the transcript for such part as is included in the printed record. 
 It is further provided that the clerk's [of the Supreme Court] 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, exclusive of the printed record furnished to him by the 
 clerk of the court below, as the Supreme Court may from time to time 
 prescribe. The avowed purpose of the act is to diminish the costs of 
 proceedings on appeal, and it should be consulted at length, as set out 
 above. Rule 23, note (a), only a summary of its provisions being given 
 here. 
 
 (d) By the proviso to the first section of the Act of February 13, 
 1911, 36 Stat, 901, it is in substance enacted that in cases taken to the 
 Court of Appeals for review, where the record has been printed as is 
 there provided, no written or typewritten transcript shall be required; 
 and (Sect. 2), that the same shall be the case as to such part of the 
 record as is so printed, where the case is carried up to the Supreme 
 Court. 
 
 (e) The docket fee is taxable upon a hearing on appeal. Kansas 
 City Ft. S. & M. R. Co. v. McDonald, 60 Fed., 522. John Shillito Co. 
 V. McClung, 66 Fed., 22. It is also taxable on an application for a 
 mandamus in the Supreme Court. Ex parte Hughes, 114 U. S., 548- 
 Even when a case is dismissed for want of jurisdiction an attorney 
 fee may be taxed. Josslyn v. Phillips, 27 Fed., 481. Riser v. Southern 
 Railway, 116 Fed., 1014. But see Smith v. Western Union Tel. Co., 81 
 Fed., 242. 
 
 RULE 30. MANDATE (a). 
 I. In each case finally determined (b) in this court, a man- 
 date or other proper process in the nature of a procedendo 
 shall be issued to the court below (c), for the purpose of 
 informing such court of the proceedings in this court (d) so 
 that further proceedings may be had in such court as to law 
 and justice may appertain (e). Such mandate or other pro- 
 cess may issue at any time on the order of the court (/), 
 and, when not otherwise ordered, it shall issue as of course 
 at the expiration of thirty days from the date of entering 
 the final judgment or final decree of this court (g). 
 
R 30-n COURT OF APPEALS RULES. 64 
 
 [S. C. Rule 24, Sect. 5, and Rule 39. C. C. A. Rule 32, 
 (Rule 30 in seventh circuit) in force in various forms in all 
 the circuits.] 
 
 (a) For form of mandate see 2 Loveland Fed. Forms, No. 1502. 3 
 Rose Fed. Proced. pp. 2979-2982. 
 
 (6) A case is not finally determined while a petition for a re- 
 hearing is pending. Title Guaranty & Surety Co. v. General Electric 
 Co., 222 U. S., 401. Hook V. Mercantile Trust Co., 95 Fed., 41. 
 
 (c) If a stay has been allowed and is secured it continues in force 
 until the mandate comes down. Shelby Steel Tube Co. v. Delaware 
 Seamless Tube Co., i6i Fed., 798. 
 
 (d) It is by the mandate that the court below is advised of the 
 judgment of the appellate court. Shelby Steel Tube Co. v. Delaware 
 Seamless Tube Co., 161 Fed., 798. A direction in the mandate to pro- 
 ceed in accordance with the opinion filed makes the opinion a part of 
 the mandaite, as though written into it. Metropolitan Co. v. Kaw 
 Drainage Dist., 223 U. S., Sig. The court below is controlled by the 
 mandate, and has no authority except to execute it. Ex parte Sibbald, 
 12 Pet., 488, 492. Ex parte Dubuque & Pacific R. R., i Wall., 69. 
 Durant v. Essex Co., loi U. S., 555. Gaines v. Rugg, 148 U. S., 228, 
 242. Ex parte The Union Steamboat Co., 178 U. S., 3:7. Schlemmer 
 V. Buffalo &c. R. R., 220 U. S., 590. Great Northern R. R. v. Western 
 Union Tel. Co., 174 Fed., 321. Nor can it refuse to carry out the 
 mandate on the ground in its opinion that there is a want of juris- 
 diction. Brown v. Alton Water Co., 222 U. S., 325. The costs as 
 taxed are to be inserted in the body of the mandate. Rule 23, Sect. 6, 
 supra; and execution should be directed to issue therefor. American 
 Trust Co. & Savings Bank v. Ziegler Coal Co., 165 Fed., 512. Where on 
 the reversal of the judgment costs are awarded, and judgment is ren- 
 dered for them under the mandate, they are beyond the control of 
 the court below. Scatcherd v. Love, 166 Fed., 53. So costs taxed in 
 the Court of Appeals without objection, cannot be objected to in the 
 lower court, after the case comes down. Fidelity & Deposit Co. v. 
 Expanded Metal Co., 183 Fed., 568. The court below cannot add in- 
 terest where it has not been given by the appellate court. In re Wash- 
 ington & Georgetown R. R., 140 U. S., 91. The Glenochil, 128 Fed., 963. 
 But a mandate fixing the amount which the plaintiff is entitled to re- 
 cover does not prevent the court below from including in its decree 
 the cost of suit in that court. New Orleans v. Gaines, 138 U. S., 595. 
 
 The mandate is conclusive of all points which were decided. Illinois 
 V. Illinois Central R. R., 184 U. S., 77, 91. United States v. Camou, 
 Ibid, 572, 574. Hence where a decree has been entered in exact ac- 
 cordance with the mandate a second appeal will be dismissd with 
 costs. Aspen Mining Co. v. Billings, 150 U. S., 31, 37. Wright v. Gor- 
 man-Wright Co., 152 Fed., 408. A second appeal, raising the same 
 question, will be regarded as frivolous. In re Kehler, 162 Fed., 674. 
 Singer Mfg. Co. v. Adams, 185, Fed., 768. It is only where the man- 
 date does not cover the entire case, or the court below misconstrues 
 it, and does not give it full effect, that there may be a second appeal. 
 Great Northern R. R. v. Western Union Tel. Co., 174 Fed., 321. If 
 therefore a second writ of error or appeal be taken, nothing but the 
 proceedings subsequent to the mandate can be reviewed. United 
 States V. Camou, 184 U. S., 572, 574. United States v. New York In- 
 dians, 173- U. S., 464, 472. So where a judgment is affirmed on one 
 writ of error and reversed on a cross writ, the questions so determined 
 
65 COURT OF APPEALS RULES. R 30-n 
 
 will not be reconsidered on a subsequent writ to the second judgment. 
 Montana Mining Co. v. St. Louis Mining & Milling Co., 147 Fed., 897. 
 
 (e) The court below may consider and decide whatever is left 
 open by the mandate. Hinckley v. Morton, 103 U. S., 764. Mason v. 
 Pewabic Co., 153 U. S., 361. In re Sanford Fork & Tool Co., 160 U. S., 
 247, 256. It has a certain measure of discretion also in the manner 
 of conforming to tlie mandate. Davis v. Packard, 8 Pet., 324. And 
 while the court below has no authority to modify the mandate, it has 
 authority to construe it. Persons v. Wirgman, 140 Fed., 207. And the 
 opinion of the appellate court may be appealed to for that purpose. 
 In re Sanford Fork & Tool Co., 160 U. S., 247, 356. While therefore 
 ordinarily the mandate is to be specifically obeyed, where new rights 
 have intervened and new conditions arisen, the court below has the 
 right and it is its duty to afford relief, this being recognized in the 
 directions of the mandate, to take such proceedings, "as according 
 to right and justice and the laws of the United States ought to be 
 had." United States ex rel. Strickley v. Marshall, 122 Fed., 428. Where 
 a decree has been entered pursuant to a mandate, permission must be 
 obtained from the appellate court to prosecute a bill of review. South- 
 ard v. Russell, 16 How., 547. Kingsbury v. Buckner, 134 U. S., 650. 
 Novelty Tufting Machine Co. v. Buser, 158 Fed., 83. Fellows v. Bor- 
 den's Condensed Milk Co., 188 Fed., 863, 187 Fed., 1005. Kelley v. Dia- 
 mond Drill & Machine Co., 136 Fed., 855. Where a judgment is reversed 
 with a procedendo, the appellate court will not direct in the mandate 
 the further steps to be taken, but will leave it to the lower court to 
 decide. Exchange Ins. Co. v. Warsaw-Wilkinson Co., 185 Fed., 487. 
 A new trial follows as a matter of course upon a reversal, without 
 its being expressed in the mandate. Newcomb v. Burbank, 182 Fed., 
 954. The only remedy for prejudicial error in a trial at law in a Fed- 
 eral Court being a new trial the appellate court has no authority to 
 re-examine the facts and render judgment thereon. Mutual Reserve 
 Life Ins. Co. v. Heidel, 161 Fed., 535. Where the only error is in the 
 instructions with regard to damages, the court of appeals in reversing 
 may limit a retrial to that question. Farrar v. Wheeler, 145 Fed., 482. 
 If a decree which is reversed has been executed pending an appeal, 
 the mandate should include a direction to the court below to award 
 restitution. Morris' Cotton, 8 Wall, 507. Ex parte Morris & Johnson, 
 9 Wall., 605. Where tlie Supreme Court reverses the Court of Ap- 
 peals which has previously reversed the District Court, the Court of 
 Appeals is not to issue an order to the District Court, but simply com- 
 municate to it the directions given by the Supreme Court. Ex parte. 
 First National Bank, 207 U. S., 61, 66. But this does not apply to 
 points not covered by the decision of the Supreme Court, as to which 
 the court below is bound by the opinion and mandate of the Court 
 of Appeals. Hill v. MutuarLife Ins. Co., 113 Fed., 44. 
 
 A mandate may be recalled for correction. Killian v. Ebbinghaus, 
 III U. S., 798. Cannon v. United States, iiS U. S., 355. American 
 Caramel Co. v. Mills,- 162 Fed., 147. Novelty Glass Co. v. Brookfield, 
 172 Fed., 221. But a motion to modify the mandate should be made 
 at the same term. Schell v. Dodge, 107 U. S., 629. Le More v. United 
 States, 131 U. S., Ixxxv. Phipps v. Sedgwick, 131 U. S., cxxxix. 
 
 (f) Under some circumstances a mandate will be issued at once. 
 Pacific Express Co. v. Malin, 131 U. S., 394. It is also sometimes re- 
 tained to permit of an application for a certiorari to the Supreme 
 Court. Atlantic Transport Co. v. Maryland, 196 Fed., 1004. 
 
 Where judgment has been affirmed and the mandate sent down, and 
 application has been promptly made for a certiorari to the Supreme 
 
R 31 COURT OF APPEALS RULES. 66 
 
 Court, execution will be stayed by the District Court to await the re- 
 sult. Boston & Maine R. R. v. Gokey, 150 Fed, 686. But application 
 for a stay for that purpose must be made to that court after the man- 
 date has once issued. Oceanic Steam Navigation Co. v. Watkins, 188 
 Fed., 909. 
 
 (gi) A petition for a rehearing must be made within the thirty 
 days allowed for the purpose before the mandate goes out. Rule 27, 
 supra. Crabtree v. McCurtain, 66 Fed., i. 
 
 RULE 31. CUSTODY OF PRISONERS (a) ON 
 HABEAS CORPUS (b). 
 
 1. Pending an appeal (c) from the final decision of any 
 court or judge (d) declining to grant the writ of habeas 
 corpus, the custody of the prisoner shall not be disturbed. 
 
 [S. C. Rule 34, Sect. i. C. C. A. Rule 33, Sect. i. In the 
 seventh circuit, Rule 31.] 
 
 (o) By Rev. Stat, Sect. 765, the custody of the prisoner or per- 
 son confined or restrained of his liberty, pending an appeal, is to be 
 as may be prescribed by the Supreme Court (or Court of Appeals), or 
 in default of that by the court or judge hearing the case. The present 
 rule is in conformity with the authority so conferred. Carper v. Fitz- 
 gerald, 121 U. S., 87. From the time of the issuing of the writ, the 
 custody of the prisoner is entirely under the control of the court 
 which issues it, or to which the return is made. In re Kaine, 14 
 How., 134. Barth v. Clise, 12 Wall., 402. And any interference there- 
 with is a contempt. United States v. Shipp., 203 U. S., 563. 
 
 (6) The Circuit Court of Appeals has no original independent 
 jurisdiction in habeas corpus. Whitney v. Dick, 202 U. S., 132. In 
 Ex parte Crawford, 154 Fed., 769, where jurisdiction was taken, the 
 question was not raised. 
 
 (c) The proper mode of obtaining a review of habeas corpus pro- 
 ceedings is by appeal, and not by writ of error. Rice v. Ames, 180 
 U. S., 371. Fisher v. Baker, 203 U. S., 174. Rainbow v. Young, 154 
 Fed., 489. But there is no appeal in habeas corpus from the Court of 
 Appeals to the Supreme Court, there being no amount in controversy. 
 A certiorari is the only means of reviewing the action of the Court of 
 Appeals in such proceedings. Whitney v. Dick, 202 U. S., 132. The 
 Court of Appeals, however, may review on appeal the action of the 
 District Court. United States v. Fowkes, 53 Fed., 13. Webb v. York, 
 74 Fed., 753. And that too even when a jurisdictional question ";s in 
 volved. King v. McLean Asylum, 64 Fed., 325. But see Davis v. iiurke, 
 97 Fed., 501. 
 
 Where the constitutionality of a law of the United States or the 
 validity or construction of a treaty is involved, and in all cases which 
 come within section S of the Court of Appeals act (Act of March 3, 
 1891, 26 Stat., 826), an appeal lies directly from the District to the 
 Supreme Court. Rice v. Ames, 180 U. S., 371. McKane v. Durston, 
 153 U. S., 684. In re Lennon, 150 U. S., 393, 399. 
 
 (d) See Sect. 3, note (a), infra. 
 
 2. Pending an appeal from the final decision of any court 
 or judge (a) discharging the writ (b) after it has been issued, 
 
67 COURT OF APPEALS RULES. R 32 
 
 the prisoner shall be remanded to the custody from which he 
 was taken by the writ, or shall, for good cause shown, be 
 detained in custody of the court or judge, or be enlarged upon 
 recognizance, as hereinafter provided. 
 
 [S. C. Rule 34, Sect. 2. C. C. A. Rule 33, Sect 2. In 
 seventh circuit. Rule 31.] 
 
 (a) See Sect. 3 note (a), infra. 
 
 (6) Where the writ has been discharged the prisoner is not en- 
 titled as a matter of right to go at large on bail pending an appeal. 
 Ex parte Green, 165 Fed., 557. 
 
 3. Pending an appeal from a final decision of any court 
 or judge (a) discharging the prisoner (b), he shall be en- 
 larged upon recognizance, with surety, for appearance to 
 answer the judgment of the appellate court, except where, 
 for special reasons, sureties ought not to be required. 
 
 [S. C. Rule 34, Sect. 3. C. C. A. Rule 33, Sect. 3. In 
 seventh circuit. Rule 31.] 
 
 (a) No appeal lies from an order of a judge sitting as a judge and 
 not as a court, discharging a prisoner on habeas corpus. Carper v. 
 Fitzgerald, 121 U. S., 87. Lambert v. Barrett, 157 U. S., 697. It is not 
 a final decision from which an appeal will lie. Ex parte Jacobi, 104 
 Fed., 681. 'But an appeal and not a writ of error is the proper mode 
 of obtaining a review, where a final decision has been made. See Sect. 
 I, n. (c) of this rule, supra. 
 
 (&) Where a prisoner is discharged on a habeas corpus simply be- 
 cause of a defect in the sentence, opportunity should be given to have 
 the sentence corrected. In re Medley, 134 U. S., 160. In re Bonner, 
 151 U. S., 242. United States v. Carpenter, 151 Fed., 214. Substan- 
 tial justice, promptly administered is ever to be the rule in habeas corpus. 
 Storti V. Mass., 183 U. S., 138, 143. 
 
 RULE 32. MODELS, DIAGRAMS, AND EXHIBITS 
 OF MATERIAL. 
 
 1. Models, diagrams, and exhibits of material forming 
 part of the evidence 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 clerk (a) of this court at least ten 
 days before the case is heard or submitted. 
 
 2. All models, diagrams and exhibits of material placed 
 in the custody of the clerk for the inspection of the court on 
 the hearing of a 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 clerk to notify the 
 counsel in the case, by mail or otherwise, of the require- 
 
R 32 COURT OF APPEALS RULES. 68 
 
 merits 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. 
 
 [S. C. Rule 33, Sects, i and 2. C. C. A. Rule 34, Sects. 
 I and 2. In seventh circuit, Rule 32.] 
 
 (o) In the Supreme Court and in the Eighth and Ninth Circuits 
 the marshal is to have the custody. 
 
iisriDiE] 
 
 Rule. Sees. 
 Abatement, death of party to abate writ of error or 
 
 appeal, when 21 2, 3 
 
 Adjournment, for want of quorum 4 i 
 
 Admiralty, objections to evidence in record 12 i 
 
 records on appeal in 14 7 
 
 clerk to make up and transmit. .. 14 2 
 
 how made up 14 7 
 
 opinions to be transmited on 14 3 
 
 original papers in 14 5 
 
 Affirmance, costs on 29 2 
 
 costs of printing on 23 6 
 
 interest and damages on 28 i 
 
 Appeal, allowance of 14 i 
 
 clerk to return record on ;. 14 2 
 
 death of party after proceedings to revive.. 21 1,2 
 
 before proceedings to revive. 21 3 
 
 record on, parts to be printed 23 2 
 
 returnable in thirty days 14 6 
 
 preliminary injunctions, ten days. 14 6 
 
 Appearance, of counsel, case docketed for argument on. 17 4 
 
 dismissal for want of when called 19 4 
 
 executors or administrators, abatement for 
 
 want of, by 21 2 
 
 fee for entering 29 7 
 
 Arguments, cases to be argued as called 19 i 
 
 continuance for cause, when 19 3 
 
 dismissal, when neither party appears at. . 19 4 
 
 on call at second term 19 6 
 
 how many counsel heard on -! jj ^ 
 
 *. 25 2 
 
 motions, time allowed on 22 2 
 
 oral, time allowed on 25 2 
 
 when defendant in error or appellee fails to 
 
 appear 19 2 
 
 who to open and close 25 i 
 
 Argument Lists, arrangement of cases on 18 2 
 
 called when 19 i 
 
 preparation and printing by clerk.... 18 2 
 
 records, when to be filed for 18 2 
 
 Assignments of error to be filed with petition for appeal 
 
 or writ 14 6 
 
 requisites of 11 i 
 
 Attorneys, admission of 7 i 
 
 fee on 7 i 
 
 dismissal of case by stipulation of 19 7 
 
 docket fee of 29 7 
 
 oatb, when required 7 i 
 
 qualifications of... 7 i 
 
 roll of 7 I 
 
70 INDEX TO COURT OF APPEALS RULES. 
 
 Rule. Sees. 
 
 Bail, in error in criminal cases, form of 15 I 
 
 in habeas corpus, pending appeal 31 i, 2, 3 
 
 Bailiffs, attendance of 6 i 
 
 number fixed by court 6 i 
 
 Bill of exceptions to admission or rejection of evidence. 10 2 
 
 to charge of court general not allowed. 10 i 
 
 when to be taken... 10 I 
 
 Bond, for costs approved and filed when 14 6 
 
 on appeal from preliminary injunction 13 2 
 
 supersedeas, amount and condition of 13 I 
 
 when money judgment to be secured. 13 I 
 
 where property follows the suit... 13 I 
 
 where proceeds in custody of court. 13 I 
 security for, taken by district or 
 
 circuit judge 14 I 
 
 Briefs, dismissal for failure to file I „. ^ 
 
 ( 24 4 
 
 fees for filing of . , 29 7 
 
 filed with clerk, when 24 I, 3 
 
 form and contents of 24 2, 3 
 
 preservation of copies of 23 9 
 
 served on opposing counsel, when 24 1,3 
 
 Certificate and seal, fee for 29 7 
 
 Certiorari for diminuation of record 21 
 
 from Supreme Court, clerk's fee on 29 6 
 
 Charge of Court, exception to not to be general 10 i 
 
 to be taken before jury 
 
 retires 10 I 
 
 Circuit Judge, allowance of appeal or writ of error by.. 14 i 
 
 citation to be signed by 14 I 
 
 security to be taken by 14 i 
 
 supersedeas or stay by 14 I 
 
 Citation, return day of 14 6 
 
 extension of 17 I 
 
 to be filed where.. 17 I 
 
 record to be filed before 17 i 
 
 served when 14 6 
 
 signed when 14 6 
 
 who to sign 14 i 
 
 Clerk, estimate of cost of printing record by 23 i 
 
 fees of, on certiorari from Supreme Court 29 6 
 
 on docketing cases 19 i 
 
 models, diagrams, &c., custody of 32 I 
 
 disposition of after ar- 
 gument 32 2 
 
 oath and bond of S 3 
 
 office at Philadelphia 5 i 
 
 practice of law by, prohibited 5 2 
 
 preparation and printing of argument list by.. .. 18 2 
 
 printing of records by I ^ ' J ?,' 
 
 t 4. S> 7- 
 
 records and papers not to be permitted to be 
 
 taken out of office 5 4 
 
 opinions to be transmitted with 14 3 
 
 return of on writ oi error or appeal.... 14 2 
 
INDEX TO COURT OF APPEALS RULES. 71 
 
 Rule. Sees. 
 
 Continuance of argument for cause 19 3 
 
 fee for entering 29 7 
 
 Costs, bond for, how and when approved 14 6 
 
 on affirmance for failure of either party to appear 19 4 
 
 on dismissal on call at second term 19 6 
 
 for want of appearance of plaintiff 
 
 in error or appellant 19 S 
 
 for want of appearance by either 
 
 party 19 4 
 
 for want of jurisdiction 29 I 
 
 on stipulation of parties 19 7 
 
 on reversal 29 3 
 
 of printing on reversal, affirmance or dismissal.. 23 6 
 
 to be taxed in mandate and items given 29 5 
 
 United States, none allowed for or against 29 4 
 
 Counsel, how many to be heard on argument < ^^ e 
 
 t 24 5 
 Counsellors, admission of, (see Attorneys). 
 
 Court, name or title of i i 
 
 seal of 2 I 
 
 terms of 3 i 
 
 Crier, attendance of 6 i 
 
 Criminal cases, bail on appeal in 15 i 
 
 Damages, when appeal or writ of error taken for delay. . 28 2, 3, 4 
 
 Death of party, proceedings tO' revive on 21 1,3 
 
 when abatement to follow 21 2, 3 
 
 Decree, affirmance of, costs on 29 2,4 
 
 damages for delay 28 2 
 
 fee for entering 29 7 
 
 interest on at state rate 28 I 
 
 reversal of, costs on 29 3, 4 
 
 Deed, in equity or admiralty record, when tO' be objected 
 
 to 12 I 
 
 Delay, (see Damages). 
 
 Depositions in equity or admiralty record, when to be 
 
 obj ected to 12 i 
 
 to be included in record on appeal 14 4 
 
 Diagrams (see Models). 
 
 Diminution of record, certiorari on suggestion of 20 i 
 
 Dismissal, costs of printing on 23 6 
 
 for failure of plaintiff in error or appellant to 
 
 file record ....._ 17 2 
 
 for failure of plaintiff in error or appellant f 19 5 
 
 to appear and file brief 1 24 4 
 
 either party to appear 29 4 
 
 executors and administrators 
 
 to appear and be substituted 21 i 
 plaintiff in error or appellant 
 
 to pay costs of printing. ... 23 I 
 
 want of jurisdiction, costs on 29 I 
 
 notice of motion for, necessary 29 9 
 
 on agreement of attorneys filed 19 7 
 
 on call for argument for two terms ig 6 
 
 District Judge, allowance of appeal or writ of error by. . 14 i 
 
 citation to be signed by 14 i 
 
 security to be taken by 14 i 
 
 supersedeas on stay of execution by.. .. 14 i 
 
72 INDEX TO COURT OF APPEALS RULES. 
 
 Rule. Sees. 
 
 Docket, chronological order of cases on i8 i 
 
 Docketing cases, by plaintiff in error or appellant.. 17 i 
 
 defendant in error, or appellee.... 17 2 
 
 fee for 29 7 
 
 instead of dismissal, when. 17 3 
 
 when appearance to be entered on. ... 17 4 
 
 Death of party, before writ of error or appeal taken. ... 21 3 
 
 pending writ of error or appeal. 21 1,2 
 
 Equity, objections to evidence in record 12 i 
 
 Errors, (see Assignments of Error). 
 
 not assigned, when may be noticed 11 i 
 
 Evidence in equity and admiralty record, objections to.. 12 1 
 exceptions to admission or rejection of to be 
 
 specific 10 2 
 
 Exceptions, see Bill of. 
 
 Execution, see Stay. 
 
 Executors and administrators, (see death of party). 
 
 Exhibits, custody of 32 i 
 
 disposition after argument 32 2 
 
 vvhen necessary to record on appeal 14 4 
 
 Fees, on filing record by plaintiff in error or appellant. . 17 i 
 
 by defendant in error or appellee. 17 2 
 
 schedule of, under Act of Congress 29 7 
 
 Foreign language, translation of documents or testi- 
 mony in 16 I 
 
 in equity or admiralty, 
 objections to, when 
 
 tO' be made . .■ 12 i 
 
 Habeas Corpus. 
 
 bail on, pending appeal, when taken.. 31 1,2,3 
 
 custody of prisoners pending appeal from refusal of 
 
 writ 31 I 
 
 from discharge 
 
 of writ .... 31 2 
 from discharge 
 
 of prisoner.. 31 3 
 
 Injunctions, bond on appeal from preliminary 13 2 
 
 Interest, on judgment to be at state rate 28 i 
 
 damages added as penalty for 
 
 delay 28 2 
 
 on decree, for payment of money 28 3 
 
 in admiralty 28 4 
 
 Judgment, afifirmance of, costs on 29 2, 4 
 
 costs of printing on 23 6 
 
 damages for delay 28 2,3,4 
 
 interest on 28 I, 2, 4 
 
 dismissal, costs of printing on 23 6 
 
 for failure of plaintiff in error or 
 
 appellant to appear and file brief. 19 5 
 for failure of either party to appear. 19 4 
 for failure of executors or adminis- 
 trators to appear and be substi f 21 1, 2, 
 
 tuted \ 3,4 
 
 for want of jurisdiction, costs on.. 29 i 
 
 on agreement of attorneys filed.. 19 7 
 
 on call for argument for two terms. 19 6 
 
 notice of motion for necessary. ... 19 9 
 
INDEX TO COURT OF APPEALS RULES. 73 
 
 Rule. Sees. 
 
 reversal of, costs on 29 3, 4 
 
 costs of printing on 23 6 
 
 fee for entering 29 7 
 
 Mandate, costs to be taxed in and itemized 29 s 
 
 fee for issuing 29 7 
 
 not to issue without order •< ]^ ' 
 
 ordered as of course after thirty days 30 i 
 
 rehearing not allowed after 27 i 
 
 thirty days stay allowed for 27 i 
 
 Marshal, attendance of 6 i 
 
 Messengers, attendance and number of 6 i 
 
 Models, diagrams and material exhibits, custody of 32 i 
 
 disposition of af- 
 ter argument.. 32 2 
 
 Money, receiving and paying out, fee for 29 7 
 
 Motions, argument of, limit of time for 22 2 
 
 fee for filing 29 7 
 
 must be in writing 22 i 
 
 Name of Court i i 
 
 Notice, dismissal only ordered after 19 9 
 
 thirty days required, on personal representative 
 
 to appear and be substituted 21 i 
 
 Objections, see Bill of Exceptions. 
 
 to depositions, exhibits or translations in 
 
 equity and admiralty to be made when. . . 12 I 
 
 Opinions, fee for certified copy of 29 7 
 
 to be filed by clerk 26 I 
 
 to be transmitted with record on appeal or 
 
 writ of error 14 3 
 
 Original Papers to be transmitted with record on ap- 
 peal or writ of error, when 14 5 
 
 Patents, copies of, to be furnished to Court 23 i 
 
 Petitions for rehearing, to be presented when 27 i 
 
 certificate of counsel on 27 i 
 
 must be made within thirty days \ Z^ 
 
 not allowed after mandate or- 
 dered 27 I 
 
 reasons for to be succinctly 
 
 stated 27 I 
 
 Practice, same as in Supreme Court 8 i 
 
 Preliminary Injunctions, appeals on, returnable when.. 14 6 
 
 bonds on • ! J3 2 
 
 Printing Records, clerk to make estimate of 23 i 
 
 plaintiff in er- 
 ror or appel- 
 lant to pay 
 on 10 days' 
 
 notice 23 i 
 
 case dismissed 
 for non-pay- 
 ment 23 I 
 
74 INDEX TO COURT OF APPEALS RULES. 
 
 Rule. Sees, 
 to print only 
 
 specified parts 23 2 
 unless noti- 
 fied by coun- 
 sel 23 I 
 
 court may or- 
 der other 
 
 parts 23 I 
 
 to supervise printing and index- 
 ing 23 I 
 
 costs of, on reversal, affirmance or 
 dismissal to be taxed against party 
 
 adjudged to pay 23 6 
 
 fee for printing case in calendar 29 7 
 
 and indexing record. 29 7 
 
 Prisoners, custody of pending appeal in Habeas Corpus. 31 i, 2, 3 
 Procedendo, see Mandate. 
 
 Process, form and teste of 9 i 
 
 not to issue without order 19 7 
 
 Record. 
 
 admiralty appeals, how made up, on 14 7 
 
 objection to evidence in 12 i 
 
 appellant, appearance by. on filing of 17 4 
 
 failure of to file 17 2 
 
 filing of, by 17 i 
 
 not allowed after dismissal. 17 2 
 
 extending time for 17 I 
 
 to get on argument list.... 18 2 
 
 appellee, appearance of, on filing and docketing.... 17 4 
 
 filing and docketing, by, for argument.... 17 3 
 
 for dismissal. . 17 2 
 
 assignments of error to form part of 11 I 
 
 clerk of court of appeals, to enter,and docket <, {, 
 
 printing by ] ^ 
 
 of district court, to make return of 14 2 
 
 complete, no case heard without 14 4 
 
 cost of printing, against whom taxed 23 6 
 
 defendant in error, appearance on filing and 
 
 docketing 17 4 
 
 filing and docketing by, for argument.. . 17 3 
 
 for dismissal... 17 2 
 
 depositions, objections- to in admiralty 12 i 
 
 to be included in 14 4 
 
 diminution, certiorari, on suggestion of 20 I 
 
 dismissal for failure to file 17 2 
 
 • to be filed before 17 2 
 
 docketing of, by plaintiff in error or appellant.... 17 I 
 
 defendant in error or appellee. ... 17 2, 3 
 
 exhibits, complete record to contain 14 4 
 
 objections to in admiralty 12 i 
 
 fee for copy of 29 7 
 
 manuscript copy 29 7 
 
 printing and indexing 29 7 
 
 filing and docketing of, by return of citation 17 i 
 
 I 
 I 
 I, 2, 
 
 3.4 
 
INDEX TO COURT OF APPEALS RULES. 75 
 
 Rule. Sees. 
 
 before dismissal 17 2 
 
 to get on argument list.... 18 2 
 
 time for extended, how... 17 i 
 extension to be 
 
 filed 17 2 
 
 opinions to be transmitted with 14 3 
 
 original papers w'hen sent up : 14 S 
 
 records not allowed out of clerk's office.... 5 4 
 plaintiff in error, filing by (see appellant), 
 printing of. 
 
 clerk to supervise and index 23 4 
 
 estimate of, to be made by 23 i 
 
 copies to be furnished to counsel 23 3 
 
 preserved and filed 23 9 
 
 remaining to be destroyed 23 9 
 
 cost of, estimate to be made by clerk 23 i 
 
 plaintiff in error or appellant to 
 
 pay within ten days 23 i 
 
 excess to be refunded 23 5 
 
 deposit to meet \ o ' 
 
 taxed against losing party 23 6 
 
 filing date of pleading to be given 23 7 
 
 parts of, required 23 1,2 
 
 when printed in court below 23 8 
 
 Rehearing, must be applied for within thirty days. ..... 30 i 
 
 not allowed after mandate -j ^ 
 
 petition for, to be printed 27 i 
 
 term, ending before 27 i 
 
 Reversal, costs on 29 3 
 
 of printing to be included 23 6 
 
 of transcript to be included 29 3 
 
 Seal of court, form and legend of 2 i 
 
 Search and certificate, fee for 29 7 
 
 Specifications of error, see assignrrjents of error. 
 
 Stay of execution, pending appeal, by whom allowed... 14 i 
 
 Supersedeas, allowed by whom 14 i 
 
 bond on, in case of money judgment or de- 
 cree 13 I 
 
 where property follows the suit.. 13 I 
 where property or proceeds in 
 
 custody of court 13 i 
 
 on appeal from preliminary in- 
 junction 13 2 
 
 Supreme court, practice adopted 8 i 
 
 process followed 9 i 
 
 Terms of court 3 i 
 
 argument list called at opening of 19 i 
 
 Title of court i i 
 
 Transcript, see record. 
 
 Translation, of documents or. testimony in foreign lan- 
 guage, case remanded for want of 16 I 
 
 in equity or admiralty record, when to be 
 
 objected to 12 i 
 
 United States, costs for or against 29 4 
 
76 INDEX TO COURT OF APPEALS RULES. 
 
 Rule. Sees. 
 
 Writ of error, abatement on death of party. 21 2, 3 
 
 allowance of 14 i 
 
 clerk to return record on 14 2 
 
 criminal cases, bail in 15 i 
 
 death of party to, abatement on 21 2, 3 
 
 substitution on 21 i, 3 
 
 dismissal of (see Dismissal). 
 
 fee for 29 7 
 
 record on, clerk to make return of 14 2 
 
 complete record required 14 4 
 
 depositions and exhibits to be 
 
 included 23 4 
 
 opinions to be transmitted with 14 3 
 original papers transmitted 
 
 when 14 s 
 
 parts to be printed 23 2 
 
 returnable, when 23 6 
 
Rules 
 
 OP THE 
 
 United States District Court 
 
 FOB THE 
 
 Middle District of Pennsylvania 
 
 In Force April 1, 1P12 
 
 Including 
 Rules in Bankruptcy 
 
 With Notes 
 
PREFACE 
 
 The majority of the rules in this compilation were origi- 
 nally adopted as Rules of the Circuit Court of the District, 
 with the approval of the Circuit Court Judges then in 
 Commission, Hon. George M. Dallas, Hon. George Gray, and 
 Hon. Joseph Buffington; as well as a Committee of the Bar, 
 consisting of Everett Warren, Esq., of Scranton, C. La Rue 
 Munson, Esq., of Williamsport, and Charles L. Bailey, Jr.. 
 Esq., of Harrisburg. But by the recent Act of Congress (a) 
 the jurisdiction previously exercised by the Circuit Courts of 
 the United States, passed, on January i, 1912, to the District 
 Courts ; and in view of this event, the combined rules of the 
 two courts of the district have been brought into a single col- 
 lection, in the form in which they will henceforth have to be 
 used (b). Suggestive and explanatory annotations have been 
 added, which, it is hoped, will assist in their construction and 
 contribute to their value. The Bankruptcy Rules have not 
 been included in this arrangement, but have been kept by 
 themselves as covering a distinct branch. 
 
 R, W. A. 
 Scranton, Pa., April i, 1912. 
 
 (a) Act March 3, 1911. 36 Stat., 1087-1169. 
 
 (6) The following order of court has been entered by Judge Wit- 
 mer : "It is hereby ordered that the rules of the Circuit Court of the 
 United States for the Middle District of Pennsylvania, be, and the 
 same are, hereby adopted as the rules of the District Court, for said 
 district, in so far as the said Circuit Court rules are applicable." 
 Adopted January i, 1912. 
 
COMPARATIVE TABLE OF RULES 
 
 OF THE 
 
 Eastern and Western Districts 
 
 WITH THE 
 
 Middle District 
 
 Eastern District 
 
 Rule I. Sec. i 
 
 I 
 
 2 
 
 Middle District. 
 
 Same as Rule i. . 
 
 4 
 
 5 
 
 34 
 
 29 
 
 30 
 38 
 36. 
 37 
 39 
 35 
 40. 
 42 
 42 
 43 
 39 
 22 
 
 54. 
 55 
 53 
 55 
 48 
 
 49 
 49 
 49 
 51 
 
COMPARATIVE TABLE OF RULES. 
 
 81 
 
 Rule 
 
 tern 
 
 Dist 
 
 rict. 
 
 
 
 Middle District. 
 
 9- 
 
 Sec. 
 
 6. 
 
 Same 
 
 as 
 
 Rule 
 
 Si- 
 
 9- 
 
 it 
 
 7- 
 
 
 
 
 
 Si- 
 
 lO. 
 
 (I 
 
 2. 
 
 
 
 
 
 4S- 
 
 lO. 
 
 it 
 
 3- 
 
 
 
 
 
 44- 
 
 lO. 
 
 it 
 
 3- 
 
 
 
 
 
 4S- 
 
 lO. 
 
 It 
 
 3- 
 
 
 
 
 
 46. 
 
 IS- 
 
 it 
 
 I to 
 
 9- 
 
 
 
 
 62. 
 
 IS- 
 
 a 
 
 2 to 
 
 9- 
 
 
 
 
 61. 
 
 i6. 
 
 
 
 
 
 
 
 23- 
 
 17- 
 
 it 
 
 I. 
 
 
 
 
 
 64. 
 
 i8. 
 
 
 
 
 
 
 
 69. 
 
 19- 
 
 
 
 
 
 
 
 67. 
 
 19- 
 
 it 
 
 3- 
 
 
 
 
 
 18. 
 
 19- 
 
 it 
 
 4- 
 
 
 
 
 
 79- 
 
 20. 
 
 '^ 
 
 I. 
 
 
 
 
 
 70. 
 
 20. 
 
 it 
 
 2. 
 
 
 
 
 
 74- 
 
 20. 
 
 it 
 
 3- 
 
 
 
 
 
 75- 
 
 20. 
 
 it 
 
 4- 
 
 
 
 
 
 76- 
 
 20. 
 
 it 
 
 S- 
 
 
 
 
 
 76. 
 
 22. 
 
 it 
 
 2. 
 
 
 
 
 
 78. 
 
 2S- 
 
 
 
 
 
 
 
 88. (ff) 
 
 27- 
 
 
 
 
 
 
 
 9S- 
 
 27. 
 
 it 
 
 4- 
 
 
 
 
 
 91- 
 
 28. 
 
 it 
 
 I. 
 
 
 
 
 
 90. 
 
 28. 
 
 it 
 
 2. 
 
 
 
 
 
 90. 
 
 28. 
 
 It 
 
 3- 
 
 
 
 
 
 90. 
 
 (a) In this district the return day is the first Monday 
 of each month. 
 
 Western District. 
 
 Middle District. 
 
 Rule 
 
 I. 
 
 Sec. 
 
 I. 
 
 Same 
 
 as 
 
 Rule 
 
 I. 
 
 
 
 I. 
 
 f( 
 
 I. 
 
 <f 
 
 ti 
 
 
 4- 
 
 
 
 I. 
 
 it 
 
 5- 
 
 11 
 
 ti 
 
 ti 
 ti 
 
 
 iS- 
 
 last clause 
 
 
 2. 
 
 
 I. 
 
 
 
 
 2. 
 
 
 
 2. 
 
 it 
 
 2. 
 
 a 
 
 a 
 
 
 4- 
 
 
 
 3- 
 
 
 
 a 
 
 it 
 
 
 S- 
 
 
 
 4- 
 
 
 
 a 
 
 it 
 
 
 8. 
 
 
 
 7- 
 
 it 
 
 I. 
 
 a 
 
 (i 
 
 
 29. 
 
 
 
 7- 
 
 it 
 
 I. 
 
 a 
 
 ti 
 
 
 32- 
 
 
 
 7- 
 
 it 
 
 3- 
 
 tc 
 
 It 
 
 
 30- 
 
 
 
 8. 
 
 
 
 " 
 
 a 
 
 
 36- 
 
 
82 
 
 COMPARATIVE TABLE OF RULES. 
 
 Western District. 
 
 Rule 8, 
 9 
 9 
 
 Sec. 
 
 9 
 
 9 
 9 
 9 
 
 lO 
 10, 
 
 II 
 II 
 II 
 II 
 13 
 13 
 14 
 
 17 
 
 17 
 
 17. 
 17- 
 20. 
 20. 
 21 
 24. 
 
 25 
 
 27. 
 
 28. 
 
 28, 
 
 29, 
 
 29, 
 
 31 
 
 32 to 40. 
 
 37 to 40. 
 
 42. 
 
 2. 
 
 Middle 
 
 D 
 
 istri 
 
 Same as' 
 
 Rule 
 
 38. 
 
 it i( 
 
 
 
 39- 
 35- 
 40. 
 42. 
 
 li a 
 (I ti 
 a it 
 it. i( 
 
 i> ti 
 
 
 
 42. 
 
 43- 
 45- 
 44- 
 SI- 
 So- 
 48. 
 
 71- 
 
 71- 
 
 ic a 
 
 
 
 27. 
 20. 
 
 ii a 
 
 
 { 
 
 10. 
 
 cc a 
 
 
 60. 
 10. 
 
 a li 
 
 
 
 10. 
 61. 
 
 ti a 
 li a 
 
 
 
 62. 
 67. 
 69. 
 88. 
 
 11 (I 
 a li 
 
 
 
 78. 
 24. 
 
 a ic 
 
 it (I 
 11 a 
 
 
 
 70. 
 
 85- 
 86. 
 
 li li 
 ii li 
 
 
 
 90. 
 
 SS- 
 
 11 11 
 
 
 
 S4- 
 30- 
 
 (a) 
 
 (a) In this district the return day is the first Monday 
 of each month. 
 
INTRODUCTION. 
 
 The Middle District of Pennsylvania was created by Act of 
 Congress of March 2, 1901 (a) ; and embraces thirty-two 
 counties, eleven of which were taken from the Eastern, and 
 twenty-one from the Western District, as follows : 
 
 Eastern. 
 
 Western. 
 
 
 Adams. 
 
 Bradford. 
 
 Mifflin. 
 
 Carbon. 
 
 Cameron. 
 
 Montour. 
 
 Cumberland, 
 
 Centre. 
 
 Northumberland, 
 
 Dauphin. 
 
 Clinton. 
 
 Potter. 
 
 Franklin. 
 
 Columbia. 
 
 Snyder. 
 
 Lebanon. 
 
 Fulton. 
 
 Sullivan. 
 
 Monroe. 
 
 Huntington. 
 
 Susquehanna 
 
 Perry. 
 
 Juniata. 
 
 Tioga. 
 
 Pike. 
 
 Lackawanna. 
 
 Union. 
 
 Wayne. 
 
 Luzerne. 
 
 Wyoming. 
 
 York. 
 
 Lycoming 
 
 
 The Courts of the District were opened at Harrisburg, May 
 6, 1901 (b) ; up to which time, by the provisions of the Act, 
 the jurisdiction and authority of the Courts and officers of the 
 Eastern and Western Districts over the territory taken from 
 each remained unchanged (c). 
 
 Terms of the Court are required to be held at Williamsport 
 on the second Monday of January and the second Monday of 
 June; at'Scranton on the fourth Monday of February and the 
 third Monday of October; and at Harrisburg on the first 
 Monday of May and the first Monday of December (d), in 
 each year. 
 
 (a) 31 Stat. c. 801, p. 880. 
 
 (b) Ibid, Sect. 10. 
 
 (c) Ibid, Sect. 7. 
 
 (d) Act June 30, 1902, Sect, i, 32 Stat. c. 1335, p. 549. 
 
 The records are directed to be kept at Scranton (<?) ; but the 
 clerk is required to maintain an office in charge of himself 
 
84 ' INTRODUCTION. 
 
 or a deputy at Harrisburg (/) ; and the Court is authorized 
 to provide by rule for the keeping of provisional or tempo- 
 rary records at Harrisburg and Williamsport of such actions, 
 suits, or proceedings, as may be entered or brought at either 
 place (^r). Civil suits instituted at Harrisburg are to be tried 
 there, if that is the nearest place of holding Court to the 
 residence of either party, unless by consent they are tried 
 elsewhere (h). 
 
 Previous to the creation of the Middle District, the Courts 
 of the Western District were held at Williamsport (i), and at 
 Scranton (/) ; and records of the Circuit, but not of the 
 District Court, were kept at both places. The records at 
 Williamsport still remain there, in charge of the resident deputy 
 clerk (k) ; but those at Scranton are made records of the 
 Middle District, and appropriate proceedings may be had upon 
 them at that place (I). 
 
 (e) Act June 30, 1902, Sect. 2, 32 Stat., p. 549. 
 
 (f) Act March 3, 1911, Sect. 103. 36 Stat, 1123. 
 
 (g) Act June 30, 1902, Sect. 2, 32 Stat. c. 133s, p. 549. 
 (h) Act March 3, 191 1, Sect. 103, 36 Stat., 1123. 
 
 (0 Act May 26, 1824, 4 Stat., c. 170, p. 50. 
 (f) Act August S, 1886, 24 Stat., c. 931, p. 336. 
 (k) Act June 30, igo2, Sect. 2, 32 Stat., c. 1335, p. S49. 
 (/) Act March 2, 1901, Sect. 9, 31 Stat., p. 882. Act June 30, 1902, 
 Sect., 2, 32 Stat., 549. 
 
85 MIDDLE DISTRICT RULES. R 1-2 
 
 ACCOUNTS. 
 
 [See Auditors.] 
 ADMISSIONS DISPENSING WITH EVIDENCE. 
 
 Rule I. In all actions (a) upon any bond, bill note, draft, 
 check (b) or other instrument of writing for the payment of 
 money, or any deed, mortgage, or recognizance, including an 
 assignment of the same, a copy of which has been filed with 
 the plaintiff's statement, it shall not be necessary for the plain- 
 tiff at the trial to prove the execution thereof, or the hand- 
 writing of the makers, drawers, acceptors, endorsers, or de- 
 mand, non-acceptance, non-payment, protest, or notice of dis- 
 honor; but the same shall be taken to be admitted, unless the 
 defendant by affidavit filed at or before the time of filing his 
 plea, shall deny such execution or hand-writing, or that de- 
 mand was made, and acceptance or payment refused, or pro- 
 test and notice duly given. 
 
 [East. Dist. (Pa.), Rule i, Sect. i. West. Dist, Rule i.] 
 
 (o) This rule does not apply to a suit against executors or adminis- 
 trators. Perkins v. Humes, 200 Pa., 235. 
 
 (&) An unaccepted check cannot be made the subject of a suit by 
 the payee against the bank on which it is drawn, even though the 
 maker has enough money on deposit to pay it. Tibby Bros. Glass Co. 
 V. Farmers & Mechanics Bank, 220 Pa., i. 
 
 Rule 2. In all actions, founded in whole or in part on 
 a book account (a), if the plaintiff shall file with his statement 
 a copy of the book entries relied upon, together with the 
 credits which he admits the defendant is entitled to, verified 
 by affidavit that such account is correctly copied from his 
 books of original entry, the account shall be taken to be ad- 
 mitted, unless the defendant by affidavit, at or before the time 
 of filing his plea, shall deny the same, or the items or parts 
 thereof which he disputes ; and in case of the denial of a part, 
 is shall not be necessary to prove the remainder; provided, 
 that the defendants shall not be confined to the items of credit 
 which are so given by the plaintiff. 
 
 [West. Dist. (Pa.), Rule 2, Sect, i.] 
 
 (o) A copy of the book account attached to the plaintiff's statement 
 does not permit the whole statement to be offered in evidence, but 
 only the book account. Knowlan v. Clopp, 29 Pa. Sup. Ct., 424. 
 
R 3-4-5-6-7 MIDDLE DISTRICT RULES. 86 
 
 Rule 3. In case the plaintiff shall not have filed with 
 his statement the copy provided for in Rules i and 2, he 
 may thereafter file the same and serve a copy thereof on the 
 defendant or his attorriey, not less than thirty days prior to 
 the time set for trial; and unless the defendant shall, within 
 fifteen days thereafter, by affidavit duly filed and served, deny 
 the same as provided in said rules, it shall be taken to be 
 admitted in the same manner and to the same extent as is 
 there provided. 
 
 Rule 4. Rules i and 2 shall apply to a specification or 
 plea of set off or counter claim by the defendant, based upon 
 a similar instrument of writing or book account, of which 
 due notice in writing shall be given to the plaintiff; the plain- 
 tiff's affidavit in denial thereof being required to be filed within 
 fifteen days thereafter. 
 
 [East. Dist. (Pa.), Rule i. Sect. i. West. Dist, Rule i. 
 Sect. 2, and Rule 2, Sect. 2.] 
 
 Rule 5. In all actions by or against partners, it shall not 
 be necessary at the trial to prove the partnership^ but the same 
 shall be taken to be admitted as alleged of record, unless one 
 or more of the defendants, by affidavit, filed at or before the 
 time of filing their plea, shall deny the existence of such 
 partnership, and shall state what if any relation they bear to 
 the subject matter of the action, and whether a partnership 
 exists with respect to the same, and, if so, who are the 
 parties to it, if known. 
 
 [East. Dist. (Pa.), Rule i, Sect. 2. West. Dist., Rule 3.] 
 
 Rule 6. Similarly, in any action by or against a corpora- 
 tion, it shall not be necessary to prove the fact of incorpora- 
 tion, but the same shall be taken to be admitted, unless de- 
 nied by the defendants, by affidavit similarly filed. 
 
 By Act June 24, 1885 (Pa.), P. L., 149, the existence of the corpo- 
 ration shall be taken to be admitted unless put in issue by the plead- 
 ings ; and when there is no denial of the averment of incorporation, 
 the defendant will be precluded from alleging that the corporation is 
 dissolved. Monongahela Bridge Co. v. Pittsburg Traction Co., 196 
 Pa., 25. 
 
 Rule 7. Whenever any written exhibit is offered in the 
 taking of depositions, or the hearing of evidence before a 
 commissioner, auditor, examiner, or referee, a copy thereof, 
 attached to such depositions, or to the evidence reported or 
 returned by such commissioner, auditor, examiner or referee, 
 
87 MIDDLE DISTRICT RULES. R 8-9 
 
 and certified to be a true copy of the original as so produced, 
 may be read upon the trial of the cause, or upon the argument 
 of any motion or rule, where the original itself would be 
 evidence, without the further production thereof, unless due 
 notice to produce it shall have been given ten days prior to the 
 time fixed for the trial or argument; and provided that the 
 genuineness of the original is not in dispute. 
 
 This is an appropriate rule. 13 Cyc, 939. As justifying it, there may 
 be cases where the original exhibit cannot be attached. Jackson v. 
 Shepherd, 6 Cow. (N. Y.), 444, 
 
 A witness who has produced a paper at the taking of his deposi- 
 tions is not bound to surrender it, or to do more than permit a copy 
 to be made. Smith v. Nat'l Bank, 193 Fed., 255. 
 
 Rule 8. Where, in any action, either party may desire 
 to give in evidence any written document, not directly put in 
 issue by the pleadings, and neither admitted nor denied 
 therein, he shall be entitled, upon praecipe, to a rule on the 
 opposite party to admit the execution thereof, the document 
 in question being deposited with the clerk, pending the rule, 
 and subject to inspection there; and if the opposite party 
 shall not, within fifteen days of the service of the rule, admit 
 in writing the execution of the document, the court, in its 
 discretion, may order him to pay the cost of making proof 
 thereof, if it shall appear that he unreasonably neglected or 
 refused to comply with the rule. 
 
 Provided, however, that no such admission, if made, shall 
 be construed to extend to the competency or relevancy of 
 such document, but only to its genuineness, or that it is what, 
 on its face, it purports to be. 
 
 [West. Dist. (Pa.), Rule 4.] 
 
 Rule 9. Upon obtaining a rule to show cause, founded 
 on a petition or affidavit, a copy of the same, together with 
 the rule, shall be served upon the opposite party or his attor- 
 ney; and upon failure of such party to make answer thereto, 
 under oath, within 15 days after service of the rule, denying 
 the same, the facts stated therein shall be taken to be ad- 
 mitted for the purpose of such rule. If answer is made, but 
 there is only a partial denial, the facts shall be taken to be 
 admitted to the extent that they are not denied. 
 A rule of this character was enforced in Russell's Appeal, 93 Pa., 384. 
 
R 10 MIDDLE DISTRICT RULES. 88 
 
 AFFIDAVIT OF DEFENCE (a). 
 
 Rule lo. Sect. i. In all actions of assumpsit (b) or of 
 scire facias, the plaintiff, having filed a declaration or state- 
 ment of his demand, as required by these rules, shall be en- 
 titled to judgment unless the defendant shall file a sufficient 
 affidavit of defence thereto (c), as follows: 
 
 If the plaintiff has served his writ and a copy of his state- 
 ment on the defendant, not less than fifteen days before the 
 return day of the writ, and if the defendant has not filed an 
 affidavit of defence on or before the return day (d), the 
 plaintiff may, after the return day^ move for judgment in the 
 office of the clerk, and judgment shall be entered by the clerk, 
 who shall assess the debt or damages in all cases in which the- 
 amount thereof is set forth with certainty in the statement 
 of the plaintiff, or can be rendered certain by computation. 
 
 [West. Dist. (Pa.), Rule 17, Sects. 2, 3 and 4.] 
 
 (a) For authority of the court to make this and the following 
 kindred rules, see Standard Underground Cable Co. v. Johnstown Tel. 
 Co., 26 Pa. Sup. Ct., 432. Under the Pennsylvania practice an affi- 
 davit of defence is not a pleading, nor is it the equivalent of an an- 
 swer under code pleading. Its sole purpose is to prevent a summary 
 judgment, and hence it need not set up the defendant's whole case, 
 but only enough to prevent the taking of judgment. U. S. v. Scho- 
 field, 1&2 Fed., 240. But this is not true where what is known as the 
 Allegheny rule is in force. 
 
 (b) By statute in Pennsylvania (Act May 23, 1887, P. L., 271), the 
 distinction between actions ex contractu is abolished, and demands, 
 theretofore recoverable, in debt, assumpsit or covenant, are thereafter 
 to be sued for and are made recoverable in a single form of action' 
 called assumpsit. But notwithstanding this, an affidavit of defence is 
 not required in an action of assumpsit for breach of promise of mar- 
 riage. Zimmerman v. Drake, 17 Dist (Pa.), 754. Nor for a penalty. 
 Bartoe v. Guckert, 158 Pa., 124, Osborn v. First Nat. Bank, 154 Pa., 
 134. Commercial Nat'l Bank v. Kirk, 222 Pa., 567. Nor for damages 
 for the negligent performance of a contract. Corry v. Pa. R. R., 194 
 Pa., S16. Brady v. Osborn Engineering Co., 132 Fed., 412. Nor 
 where the action is of a mixed character, part contract and part tort. 
 Kinney v. Mitchell, 136 Fed., 773. Nor on an order for reparation, 
 made by the Interstate Commerce Commission, for excessive freight 
 charges. Naylor v. Lehigh Valley R. R., 188 Fed., 860. It is no ob- 
 jection, however, that the case sounds in damages, where they may 
 be liquidated with certainty. Commonwealth v. Yeisley, 6 Pa. Sup. Ct., 
 273. And although the plaintiff states a claim in trespass, he is en- 
 titled to an affidavit, where the facts show that he may recover in as- 
 sumpsit as well. Duffield v. Rosenzweig, 144 Pa., 520. 
 
 (c) The filing of an affidavit of defence is a waiver of formal de- 
 fects in the statement. Felty v. Natl. Ace. Soc, 139 Fed., 57. 
 
 (rf) An affidavit of defence may be filed as of right at any time 
 before judgment. Calehuff v. Driver, 46 Pa. Sup. Ct., 79. Bordentown 
 Banking Co. v. Restein, 214 Pa., 30. 
 
89 MIDDLE DISTRICT RULES. R 11-12 
 
 Sect. 2. Similarly in replevin (a), if the writ shall have 
 been served fifteen days before the return day, the defendant 
 or party intervening as such shall within fifteen days after 
 the filing of the plaintiff's declaration and service of a copy 
 thereof upon him, file an affidavit of defence, setting up the 
 facts denying the plaintiff's title to the goods and chattels in 
 controversy, and showing his own title thereto, and in the 
 event of his failure so to do, the plaintiff, at any time after 
 the return day (b), upon proof of such service, shall be en- 
 titled to judgment, to be entered by the clerk. 
 
 (a) This is regulated in Pennsylvania as to replevin by Act 19 April, 
 1901, Sects. 4 and S, P. L. (Pa.), 89; and the rule conforms to the state 
 practice. Griesmer \. Hill, 225, Pa., 545. 
 
 But the act does not apply to landlord and tenant cases which are 
 still governed by the Act of March 21, 1772. Williams v. Rutherford, 
 14 Dist. (Pa.), 282. Rosenfeld v. Goldberg. Ibid, 381. But see 
 Crawford v. Fulmer, Ibid, 487. 
 
 (6) It is not necessary under the statute that a return day inter- 
 vene. Griesmer v. Hill, 36 Pa. Sup. Ct., 69. 
 
 Rule II. In the actions mentioned in the foregoing rule, 
 if the plaintiff fails to file and serve his declaration or state- 
 ment, at the time and in the manner there stated, he may file 
 and serve the same at any time thereafter, and if the defend- 
 ants shall not file an affidavit of defence within fifteen days 
 after such service (a), the plaintiff shall be entitled to judg- 
 ment, not' sooner however than the return day of the writ (b). 
 
 [See Act May 25, 1887, Sect. 6.] 
 
 (o) Where there is more than fifteen days between the service of 
 the copy of the statement, and entry of judgment, and a return day 
 has intervened, the judgment is good. Weigley v. Teal, 125 Pa., 498. 
 Marlin v. Waters, 127 Pa., 177. Newbold v. Pennock, 154 Pa., 591. 
 
 (&) Judgment cannot be entered by default for want of an affidavit 
 of defense until fifteen days after the return day, where the summons 
 was not served until that day, even though the statement and rule to 
 file an affidavit of defence was entered and served before that time. 
 Commonwealth v. Bangs, 22 Pa., Sup. Ct., 403. Hanna v. Massey, 20 
 Dist. (Pa.), 921. 
 
 An affidavit of defence may be filed as of right at any time before' 
 judgment. CalehufI v. Driver, 46 Pa. Sup. Ct., 79. Bordentown Bank- 
 ing Co. V. Restein, 214 Pa., 30. 
 
 Rule 12. Service of the declaration or statement, pro- 
 vided in the foregoing rules, shall be by copy (a), and shall 
 be made as follows: 
 
 (a). By the marshal with the writ, in which case his f-eturn 
 shall be accepted in lieu of the affidavit of service otherwise 
 required. 
 
R 13 MIDDLE DISTRICT RULES. 90 
 
 (b). By any competent person, upon the defendant, in the 
 manner prescribed by law for the service of the writ, or upon 
 his attorney of record, personally. 
 
 (c). If the defendant resides out of the district, and has 
 no attorney of record therein, service may be made upon him, 
 wherever found, by messenger or registered letter. 
 
 (d). If the defendant's residence is unknown, and he has 
 no attorney of record within the district, service may be made 
 by leaving with the clerk a copy of the statement, marked 
 "defendant's copy," which shall be delivered to the defendant 
 or his attorney upon the entry of an appearance. 
 
 An affidavit of the time, place, and manner of service, shall 
 be filed in all cases, except where it is made by the marshal; 
 and in case of service by registered letter it shall be accom- 
 panied by the post-office return receipt. 
 
 (a) The service of a copy of the plaintiff's statement is a sufficient 
 compliance with the statute with regard to notice of filing. Standard 
 Cable Co. v. Johnstown Telephone Co., 26 Pa. Sup. Ct., 432. 
 
 Rule 13. In an action against an executor or adminis- 
 trator, no affidavit of defence shall be required, where the de- 
 fendant shall suggest, under oath, that the cause of action 
 and the defence thereto arose in the lifetime of the decedent 
 (a). And the same rule shall apply, where an action is de- 
 fended by the committee of a lunatic (b), or by a guardian 
 (c), trustee (d), or receiver (e), and the matters involved 
 occurred prior to his appointment. 
 
 (o) An executor or administrator cannot ordinarily be required to 
 file an affidavit of defence. Seymour v. Hubert, 83 Pa., 346. Mutual 
 Life Ins. Co. v. Tenan, i88 Pa., 239. This exemption, however, does 
 not extend to cases where the cause of action arose after the death of 
 the decedent, and relates to transactions in which the personal repre- 
 sentative took a part. Palairet v. Fidelity Co., 16 W. N. C, 146. 
 Miller's Petition, 3 Bist. (Pa.), 393. Reakirt v. Flannagan, 6 Dist. 
 (Pa.), 402. But an administrator de bonis non is within the rule, 
 where the cause of action arose under his predecessor. Johnston v. 
 Shurtleff, i Lacka. Leg. News, 255. 
 
 (&) Alexander v. Ticknor, i Phila., 120. Ash v. Conyers, 2 M., 94. 
 
 (c) But where the proceedings are in rem and the guardian has 
 custody, and is able to ascertain all the facts, as fully as if the prop- 
 erty was his own, judgment may be taken for want of an affidavit. 
 Charlton v. Allegheny City, I Grant (Pa.), 208. 
 
 (d) A trustee in bankruptcy is not necessarily absolved from filing 
 an affidavit. Booth v. Wolff Process Leather Co., 224 Pa., 583. 
 
 (e) Hays v. Railroad, 27 Pittsburg Leg. Jour., 105. The general 
 rule is, that a receiver, as an officer of the Court and acting in a 
 representative capacity, is exempt. Speck v. Lansdale & Norristown Ry., 
 
91 MIDDLE DISTRICT RULES. R 14-15 
 
 21 Montg., 215. And the same is true as to an assignee for the benefit 
 of creditors. Boyd v. Moir, 7 Montg., 50. Nor will an affidavit be re- 
 quired of the widow and heirs of a decedent, brought in on a scire 
 facias to revive. Stadeltnan v. Pa. Trust Co., 12 Phila., 332. Lewis 
 V. Quigley, i Lehigh, 188. 
 
 Rule 14. Every affidavit shall be in the first person, 
 and shall be divided into convenient paragraphs, consecutively 
 numbered, each being devoted as nearly as may be to a single 
 subject. It shall be made by the defendant, when practicable 
 (a) ; and if by one of several defendants on behalf of all, it 
 shall so state. Where made by a person who is not a party to 
 the record the reason shall be given (&), which, if not suffi- 
 cient, the affidavit may be excepted to on that ground. If the 
 defendant is a corporation (c), the affidavit may be made 
 by any officer, agent, or employee, having the requisite knowl- 
 edge and authority, which must appear. 
 
 (a) Where the affidavit is made on information and belief, it should 
 aver the ability of the defendant to prove the facts so alleged. Ban- 
 ning v. Murphy, 226 Pa., 568. 
 
 (6) Where the affidavit is made by a stranger to the record, the 
 reason should appear. Griel v. Buckius, 114 Pa., 187. Citizens Natural 
 Gas Co. V. Waynesburg Natural Gas. Co., 210 Pa., 137. Phillips v. 
 Allen, 32 Pa., Sup. Ct., 356. 
 
 (c) This does not include municipal corporations, whicli are re- 
 lieved by statute. Act April 26, 1893, P. L. (Pa.), 26; except where a 
 part of the claim is admitted to be due. Act May 3, 1909, P. L., 394. 
 
 Rule 15. Where defence is made to a part only of the 
 plaintiff's claim, the affidavit shall state to what part, and 
 tender judgment for the balance; and thereupon the plaintiff 
 may take judgment and have execution for the amount so ad- 
 mitted to be due (a) ; or, in the action of replevin, for the 
 goods admitted to be the property of the plaintiff (&). But if 
 the plaintiff refuses to accept, in satisfaction of his claim (c), 
 the judgment tendered, and proceeds for the balance, he shall 
 pay the costs which subsequently accrue, unless he recovers 
 more than the judgment tendered. 
 
 [As to last clause of the rule, see West. Dist. (Pa.), Rule i. 
 Sect. 5.] 
 
 (o) Act May 31, 1893, P. L. (Pa.), 185. Judgment for the part of 
 the plaintiff's claim admitted to be due, must be strictly confined to 
 that which is so admitted. United Oil Cloth Co. v. Dash, 32 Pa. Sup. 
 Ct., IS5- 
 
 (b) Act April 19, 1901, Sect. 5, P. L. (Pa.), 89. 
 
 (c) Care should be taken to state in the praecipe for judgment 
 whether it is accepted in full satisfaction or pro tanto only. Coleman 
 
R 16-17 MIDDLE DISTRICT RULES. U2 
 
 V. Nantz, 63 Pa., 178. Stedman v. Poterie, 139 Pa., 100. Taber v. Olm- 
 sted, 158 Pa., 351. 
 
 Rule 16. Where an affidavit is filed to the whole of 
 the plaintiff's claim, but is adjudged by the court to be in- 
 sufficient as to a portion of it, the plaintiff may take judgment 
 and have execution for such portion, and proceed for a re- 
 covery of the balance, the same as if no such judgment had 
 been entered (a). 
 
 (o) Act July 15, 1897, P. L. (Pa.), 276. To justify judgment for 
 a part of the plaintiff's claim, the court should adjudge what portion 
 of the affidavit of defence it considers insufficient. Pierson v. Krause, 
 208 Pa., IIS. The items as to which it is claimed that the affidavit of 
 defence is insufficient should be enumerated in the rule for judgment, 
 or specially indicated by the court in its adjudication. Law v. Wal- 
 dron, 230 Pa., 458. The plaintiff is not entitled to judgment for a part, 
 on a rule for judgment as to the whole of his claim. Faux v. Fitler, 
 223 Pa., s68. 
 
 As to partial judgments in actions of replevin, see Act April 19, 1901, 
 . Sect. 5, P. L., 89. 
 
 Rule 17. Where an affidavit of defence is considered 
 insufficient in form or substance, exceptions may be filed 
 thereto, particularly stating in what respect it is objectionable; 
 and thereupon a rule shall be entered on the defendant to 
 show cause why the plaintiff should not have judgment not- 
 withstanding the affidavit of defence (a) ; and if, after argu- 
 ment, the Court shall be of opinion, that the exceptions are 
 well taken, judgment may be entered for the plaintiff, or a 
 supplemental affidavit be ordered (b). 
 
 (a) It is too late to enter a rule for judgment for want of a suffi- 
 cient affidavit of defence after any step has been taken in the case 
 calculated to induce the belief that the affidavit has been accepted as 
 sufficient. Thompson v. Donaldson, 43 Pa. Sup. Ct., S^S- 
 
 But where judgment has not been asked for, an affidavit of defence 
 may be withdrawn and a demurrer interposed. Ewald v. Coe, 15 Dist. 
 (Pa.), 102. 
 
 (6) No writ of error can be taken in the Federal Courts to the 
 refusal of judgment for want of a sufficient affidavit of defence; this 
 being an interlocutory order. Shuraaker v. Security Life & Annuity 
 Co., 159 Fed., 112. On a rule for judgment for the whole of the 
 plaintiff's claim, he is not entitled to judgment for a part as to which 
 the affidavit is possibly deficient. Faux v. Fitler, 223 Pa., 568. 
 
93 MIDDLE DISTRICT RULES. R i8 
 
 APPEARANCES. 
 
 Rule 1 8. Appearances (a) by attorney shall be by 
 praecipe to the clerk, who shall file and note the same of record 
 (b), and enter the name of the attorney on the margin of the 
 docket, opposite the name of the party for whom he appears 
 
 (0- 
 
 [East. Dist. (Pa.), Rule 19, Sect. 3.] 
 
 (a) On the general subject of appearances, see 3 Cyc, 500-535. i 
 Foster's Fed. Prac, Sects. 99-102. i Troubat & Haly's Prac, Sect. 271, 
 A general appearance waives all mere defects and irregularities ; 3 Cyc, 
 514-520. I Foster's Fed. Prac, Sect. loi ; including want of service. 
 Creighton v. Kerr, 20 Wall., 8; Jewett v. Garrett, 47 Fed., 625; or the 
 objection that the defendant does not reside in the district. Interior 
 Construction Co. v. Gibney, 160 U. S., 217. Western Loan Co. v. 
 Butte Mining Co., 210 U. S., 368. But not matters, which go to the 
 Court's jurisdiction over the subject in controversy. United States 
 V. Yates, 6 How., 606. Creighton v. Kerr, 20 Wall., 8. Romaine v. 
 Union Ins. Co., 28 Fed., 625. 3 Cyc, 515. 3 Cent. Dig., title, Appear- 
 ances, Sect, 76. 
 
 (b) The defendant may reserve his rights by appearing specially; 
 as to move the Court to set aside the service of process. Harkness v. 
 Hyde, 98 U. S., 476; or to call attention to other irregularities by which 
 jurisdiction is sought to be obtained over him. Goldey v. Morning 
 News, 156 U. S., 518. Wabash R. R. v. Brow, 164 U. S., 271. Citizens 
 Sav. & Trust Co. v. Illinois Cent. R. R., 205 U. S., 46. United States 
 V. American Bell Tel. Co., 29 Fed., 17. Internat'l Wireless Tel. Co. v. 
 Fessenden, 131 Fed., 491. But the taking of any step without this, 
 by which it is recognized that the case is in Court, will amount to a 
 general appearance, and bring the party in for all purposes. 3 Cyc, 504. 
 New Jersey v. New York, 6 Pet., 323. Jones v. Andrews, 10 Wall., 327. 
 Texas Pac. R. R. v. Cox, 145 U. S., 593^ Lycoming Ins. Co. v. Storrs, 
 97 Pa., 354. Byers v. Byers, 208 Pa., 23. And this is the effect of a 
 demurrer calling for a judgment on the merits. St. Louis R. R. v. 
 McBride, 141 U. S., 127. Western Loan Co. v. Butte Mining Co., 210 
 U. S., 368. Peale v. Marian Coal Co., 172 Fed., 639. Nelson v. Rusted, 
 182 Fed., 921. Order of Commerciar 'Travelers v. Bell, 184 Fed., 298; 
 or the setting up of a counter claim. Merchants Heat & Light Co. v. 
 Clow, 204 U. S., 286; or joining in a prayer for a receiver. Horn v. 
 Pere Marquette R. R., 151 Fed., 626. But not necessarily, of a removal 
 from the State Courts. Wabash R. R; v. Brow, 164 U. S., 271; the 
 defendant having the -right to remove for the very purpose of object- 
 ing. Goldey V. Morning News, 156 U. S., 518. Davis v. Qeveland &c. 
 R. R., 146 Fed., 403. Flint v. Coffin, 176 Fed., 872. And the defendant 
 is not bound, as by a general appearance, by pleading to the merits, 
 after his objections, upon due exception, have been overruled. Hark- 
 ness V. Hyde, 98 U. S., 476. Southern Pac. Co. v. Denton, 146 U. S., 
 202. St. Louis & Santa Fe R. R. v. Loughmiller, 193 Fed., 689. Nor 
 by a mere argument^ of the merits on a hearing with regard to the 
 sufficiency of pleas to the jurisdiction. Citizens Sav. & Trust Co, v. 
 Illinois Central R. R., 205 U. S., 46. 
 
 (c) The effect of a general appearance cannot be recalled, by the 
 withdrawal of that by which it was brought about, even though it be 
 done with leave. Eldred v. Bank, 17 Wall., 551. Creighton v. Kerr, 
 
R 19-20 MIDDLE DISTRICT RULES. 94 
 
 20 Wall., 8. Nor should leave to withdraw be given without notice. 
 Daley v. Iselin, 212 Pa., 279. 
 
 Rule 19. No special appearance shall be entered without 
 leave of Court, the purpose of which shall be stated in writ- 
 ing and filed of record at the time. 
 
 A Court may make and enforce such a rule. Mahr v. Union Pacific 
 R. R., 140 Fed., 921. A special appearance, under the Federal practice, 
 is not to be confused with an appearance de bene esse, which is peculiar 
 to the Pennsylvania law. Blair v. Weaver, 11 S. & R., 84. See the 
 two defined. 3 Cyc, 502. See also Taylor v. McCafiferty, 27 Pa. Sup. 
 Ct, 122. 
 
 A defendant is entitled to reserve his rights, by appearing specially; 
 as to move the Court to set aside the service of process. Harkness v. 
 Hyde, 98 U. S., 476. Flint v. Coffin, 176 Fed., 872 ; or to call attention 
 to other irregularities affecting the jurisdiction of the Court. Goldey 
 V. Morning News, 156 U. S., 518. Wabash R. R. v. Brow, 164 U. S., 
 271. Clark V. Wells, 203 U. S., 164. Citizens Savings & Trust Co. v. 
 Illinois Central R. R., 205 U. S., 46. United States v. Amer. Bell 
 Tel. Co., 29 Fed., 17. Internat'l Wireless Tel. Co. v. Fessenden, 131 
 Fed., 491. 
 
 A party who appears specially cannot be compelled, by rule of Court, 
 to agree, that, if the objection which he makes is overruled, his ap- 
 pearance shall be taken as a general one. Davidson Marble Co. v. 
 Gibson, 213 U. S., 10. 
 
 But an application for relief of any kind, as for an extension of 
 time in which to answer, will amount to a general appearance unless 
 it be otherwise specially noted at the time. Murphy v. Herring Safe 
 Co., 184 Fed., 495. A mere demand for a copy of the complaint under 
 the New York practice is at most only a special appearance. Hoyt 
 v. Ogden Portland Cement Co., 185 Fed., 889. 
 
 Rule 20. In actions of assumpsit, trespass, and scire 
 facias (a), the plaintiff having filed his declaration or state- 
 ment prior to the return day of the writ, shall be entitled to 
 judgment, at any time thereafter, for want of an appearance 
 (b), to be" entered by the clerk (c) ; provided the writ shall 
 have been served ten days prior to the time of taking judg- 
 ment. 
 
 [West. Dist. (Pa.), Rule 17, Sect, i.] 
 
 (a) Judgment for want of an appearance, in the actions named, 
 is regulated in Pennsylvania by statute. Act June 13, 1836. Sects. 33 
 and 34. P. L., 578. The two essentials are, that the plaintiff shall have 
 filed his declaration or statement before the return day; and that 
 the defendant, having been served within the jurisdiction, shall have 
 had ten days in which to appear. Fitzsimons v. Salomon, 2 Binn., 436. 
 Foreman v. Schricon, 8 W. & S., 43. Dennison v. Leech, 9 Pa., 164. 
 Black V. Johns, 68 Pa., 83. Kohler v. Luckenbaugh, 84 Pa., 258. When 
 the declaration is not filed before the return day, the only thing the 
 plaintiff can do is to enter a common appearance and rule the defendant 
 to plead. Foreman v. McFerrin, 13 S. & R., 290. Seidel v. Hurley, i 
 Wood. Dec, 352. Hanna v. Massey, 20 Dist. (Pa.), 921. 
 
95 MIDDLE DISTRICT RULES. R 21-22 
 
 Judgment for want of an appearance cannot be taken in replevin. 
 Crofut V. Chichester, 3 Phila., 457; the plaintiff being confined to en- 
 tering a common appearance and ruling the defendant to plead. Act 
 April 19, 1901, Sect. S, P. L., 90. 
 
 In ejectment the defendant does not have to appear until the second 
 terin, and judgment for want of an appearance cannot be entered 
 against him until that time. Act March 21, 1806. 4 Sm. Laws, 332. 
 Act April 13, 1807, Sect. 2. 4 Sm. Laws, 476. Vanderslice v. Garven, 
 14 S. & R., 273. Young V. Cooper, 6 W. N. C, 43. And this has not 
 been changed by the Act of May 8, 1901, P. L., 142. Lorenz v. Berry, 
 207 Pa., 296. 
 
 For judgment for want of an appearance in attachment executions, 
 see Rule 26, infra. 
 
 The establishment of monthly return days has not changed the prac- 
 tice as to entering judgment on two returns of nihil to writs of scire 
 facias. Magaw v. Stevenson, i Grant (Pa)., 402. Stevens v. North 
 Penn. Coal Co., 35 Pa., 265. Haupt v. Davis, 79 Pa., 238. 
 
 On the general subject of judgment for want of an appearance, see 
 Commonwealth v., Lehigh Val. R. R., 165 Pa., 162. 
 
 (b) As to what is to be taken as equivalent to an appearance, see 
 Myler v. Wittish, 204 Pa., 180. Where an appearance is entered and 
 afterward withdrawn, the case may be treated as though there were 
 no appearance, and judgment by default be rendered. Rio Grande Ir- 
 rigation Co. v. Gildersleeve, 174 U. S., 603. 
 
 (c) In ejectment, application for judgment for want of an appear- 
 ance must be made to the Court. Thompson v. Owen, 8 Kulp, 36. 
 
 ARGUMENTS. 
 
 Rule 21. The Court, by standing order, being always 
 open, cases may be argued at any time, at the convenience of 
 counsel. Where the time cannot be agreed upon, it will be 
 fixed by the court by special order, on the application of either 
 party. 
 
 [As to the Court being opened every day see Rule 87.] 
 
 Rule 22. Where testimony is required for the disposi- 
 tion of a case upon argument, it shall be taken by depositions 
 upon a rule for that purpose to be entered ex parte, as of 
 course. 
 
 [East. Dist (Pa.), Rule 7, Sect. 4.] 
 
 See also Rule 53, infra. A rule of this kind is justified. Importers 
 Nat'l Bank v. Lyons, 134 Fed.,' 5T0. Despeaux v. Pennsylvania R. R., 
 147 Fed., 926. 
 
 The provision for an allowance of an attorney fee of $2.50 for 
 each deposition taken and admitted has reference to depositions admit- 
 ted at the trial or final hearing of the case and not to depositions taken 
 for an interlocutory purpose. Michigan Aluminum Foundry Co. v. 
 Aluminum Co., 190 Fed., 903. 
 
R 23-24-25 MIDDLE DISTRICT RULES. 96 
 
 Rule 23. Arguments shall be oral, printed or typewritten 
 briefs of the points intended to be made and the authorities 
 relied on being furnished at the time to the court and the 
 opposing counsel. The moving party, or party having the 
 affirmative of the question, shall begin and conclude, arguing 
 the case fully in the opening argument, and being confined in 
 conclusion to a reply. 
 
 [East. Dist. (Pa.), Rule 16.] 
 
 Rule 24. In equity cases, the record and briefs of counsel 
 if so ordered shall be printed for the use of the Court, the 
 record being printed by the clerk and the expense taxed, as 
 a part of the costs to be paid by the losing party. Before 
 printing the record the clerk shall make an estimate of the 
 expense and notify each party of the amount with which 
 he is chargeable, which, subject to subsequent adjustment, 
 shall be paid by such party before his part is printed. And 
 upon the failure of either party to so pay the estimated 
 amount within a reasonable time, that part of the record 
 will not be considered. 
 
 [West. Dist. (Pa.), Rule 28. C. C. A. Rule 23.] 
 
 Where there is an established practice of printing the record, it has 
 the effect of a rule, and the printing bill will be taxed against the losing 
 party. Detroit Heating Co. v. Kemp, 182 Fed., 847. 
 
 But there must be a rule or its equivalent to make the printing tax- 
 able. Keasbey Co. v. American Magnesia Co., 149 Fed., 439. 
 
 The record as printed may be used on appeal. C. C. A. Rule 23, 
 Sect. 8. See also Act Feb. 13, 191 1, 36 Stat, 901. 
 
 ATTACHMENTS. 
 
 Rule 25. All remedies by attachment or other like pro- 
 cess which are given by the laws of the State of Pennsylvania 
 in common law cases, are hereby adopted and made applicable 
 to such cases in this Court, preliminary affidavits or proofs 
 being made, and security furnished, the same as is there re- 
 quired. 
 
 This rule is expressly authorized by Rev. Stat., Sect. 915. In the 
 absence of a showing to the contrary it will be presumed, on appeal, 
 that the state law with regard to attachments has been adopted with- 
 out a formal rule. Citizens Bank v. Farwell, 56 Fed., 570. The exer- 
 cise of the jurisdiction so conferred draws with it whatever is inciden- 
 tal thereto, even though other parties, not otherwise subject to the 
 jurisdiction of the Court, may be affected thereby. Gumbel v. Pitkin, 
 124 U. S., 131. An attachment being merely an incident, if the suit 
 cannot be maintained for want of jurisdiction over the defendant, the 
 
97 MIDDLE DISTRICT RULES. R 26-27 
 
 attachment falls. Laborde v. Ubarri, 214 U. S., 173. United States v. 
 Brooke, 184 Fed., 341. The Federal Courts can acquire no jurisdic- 
 tion therefore, by foreign attachment over a non-resident debtor, not 
 served with process, even though that be the state law. Central 
 Trust Co. v. Chattanooga R. R., 68 Fed., 685. With this exception the 
 Federal Courts administer the law of attachments, as it is laid down 
 by the state. Perez v. Fernandez, 202 U, S., 80, 97. Bates v. Days, 17 
 Fed., 167. 
 
 Where there are two or more districts in a state, an attachment exe- 
 cution runs into all. Prevost v. Gorrell, 5 W. N. C, 151. Act March 
 3, 191 1, Sect. S3. 36 Stat., iioi. 
 
 Rule 26. The plaintiff in an attachment execution 
 shall be entitled to jiidgment against the garnishee for want 
 of an appearance (a) at any time after the return day (fo), 
 provided the writ shall have been served ten days prior to the 
 time of taking judgment (c). 
 
 (a) For form of judgment for want of an appearance in case of 
 an attachment, see Layman v. Beam, 6 Whart., 181. Jones v. Tracy, 
 75 Pa., 420. Longwell v. Hartwell, 164 Pa., 533. The judgment es- 
 tablishes that the garnishee has in his hands the property attached. 
 Lorenz v. King, 38 Pa., 93. But where the attachment and the return 
 are general, the judgment by default is interlocutory merely, and the 
 plaintiff must establish, by writ of inquiry, the possession by the gar- 
 nishee of the goods or credits relied on, and their nature and value. 
 It is only where money or a debt is attached, the amount of which is 
 specified in the return, that the requisites for a final judgment appear. 
 Longwell v. Hartwell, 164 Pa., 533. 
 
 (&) The matter of appearing is left largely to the discretion of the 
 Court. Struemple v. Sausser, 8 Dist. (Pa.), 53. The act of assembly 
 simply requires the garnishee "to appear at the next term of the Court, 
 or at such other time as the Court * * * shall appoint." Act June 16, 
 1836, Sect., 35. P. L., 767. Where the defendant appears in Court 
 personally or by counsel on the hearing of a motion to dissolve, and 
 being served with a rule to plead files an answer and demurrer, this 
 is equivalent to a formal appearance. Myler v. Wittish, 204 Pa., 180. 
 
 (c) The writ does not need to issue and be returned ten days prior 
 to the return day. Shaeffer v. Wilson, i Chest. Co., 161. Struemple v. 
 Sausser, 8 Dist. (Pa.), 53. 
 
 Rule 27. In an attachment execution, the plaintiff may 
 file with his praecipe, to be served with the writ or afterwards, 
 interrogatories to be exhibited to the garnishee, and thereupon 
 enter a rule as of course to answer the same, returnable not 
 earlier than the return day of the writ (a) ; and due service 
 of the writ having been made on the garnishee, and the rule 
 and interrogatories having also been served (b) not less than 
 fifteen days before the return day of said rule, judgment may 
 be entered against the garnishee by default, if he neglects or 
 refuses to answer the same (c). Or if he answers admitting 
 
R 27-n MIDDLE DISTRICT RULES. 98 
 
 property of the defendant in his hands, judgment may be 
 taken for the amount so admitted (d). 
 [West. Dist. (Pa.), Rule 14, Sect. 3.] 
 
 (o) The interrogatories may be served with the writ, but the gar- 
 nishee is not bound to answer until the return day. Crammond v. 
 Trustees, 4 S. & R., 147. 
 
 (b) Service of the interrogatories and rule does not have to be 
 made by art officer. Ringwalt v. Brindle, 59 Pa., 51. 
 
 (c) On failure of the garnishee to answer, the judgment to be 
 entered is, that he has "in his possession goods and effects of the 
 defendant liable to such writ of attachment to an amount or value 
 sufficient to satisfy the demands of the plaintiff, together with all legal 
 costs of suit and charges." Act June 13, 1836, Sect. 57. P. L., 582. 
 And thereupon execution may issue against the garnishee in like man- 
 ner, as in the case of a judgment rendered against him for his own 
 proper debt. Ibid. The plaintiff may also have execution against the 
 garnishee, as for his own proper debt, in case he neglect or refuse on 
 demand to produce and deliver the goods and effects of the defendant 
 found in his hands. Ibid, Sect. 60, P. L., 583. 
 
 (d) For form of judgment, on answers by the garnishee admitting 
 the possession of assets, see Davidson v. Mullally, 3 Lack. Jurist, i8r. 
 Zurflieh v. Sossong, Ibid, 7. There must be a clear admission by the 
 garnishee of the possession of assets to authorize judgment on the an- 
 swers. Bank v. Meyer, 59 Pa., 361. McCallum v. Lockhart, 179 Pa., 
 427. Hagy V. Hardin, 186 Pa., 428. If the answers are insufficient or 
 evasive, the practice is to file exceptions and ask for more specific an- 
 swers. McCallum v. Lockhart, 179 Pa., 427. The plaintiff would not 
 seem to be entitled to move for judgmeht because of their insuffi- 
 ciency. Ibid. Lauback v. Black, i W. N. C, 314. But see Henwood 
 V. Legion of Honor, 2 Dist. (Pa.), 170. Where the garnishee admits 
 owing the money attached, but states that it is claimed by others than 
 the defendant, he may be relieved from liability by paying it into 
 Court, to be disposed of on an issue between the parties. Good v. 
 Grant, 76 Pa., 52. Fish v. Keeney, 91 Pa., 138. Where the garnishees 
 are executors or administrators a judgment de propriis should not be 
 entered in the first instance. Lorenz v. King, 38 Pa., 93. Mauer v. 
 Kerper, 102 Pa., 444. 
 
 Unless the plaintiff recovers more than is admitted to be due by the 
 answers, he must pay the costs. Newlin v. Scott, 26 Pa., 102. Irwin 
 V, R. R., 43 Pa., 488. Where money or other property is attached in 
 the hands of executors or administrators, the garnishee, after the third 
 term, may obtain a rule on the parties to proceed with the attachment 
 within such time as the Court may direct, or in default, the Court may 
 discharge the garnishee from liability therefor. Act Feb. 28, 1873, 
 P. L., 37. Aside from this, an attachment execution binds not only the 
 property in the hands of the garnishee at the time, but whatever comes 
 into them afterwards. Franklin Fire Ins. Co. v. West, 8 W. & S., 350. 
 Sheetz v. Hobensack, 20 Pa., 412. Mahon v. Kunkle, 50 Pa., 216. 
 Hays V. Lycoming Ins. Co., 99 Pa., 621. Although possibly not, after 
 a plea. Mullen v. Maguire, i W. N. C, 577. Excelsior Brick Co. v. 
 Gibson, 21 W. N. C, 32. But see Silverwood v. Bellas, 8 Watts., 420. 
 Raiguel v. McConnell, 25 Pa., 362. Benners v. Buckingham, 5 Phila., 
 68. German Sav. B'ank v. Braddock Mill Co., 44 Pitts. Leg. Journ., 
 193- 
 
99 MIDDLE DISTRICT RULES. R 28 
 
 Rule 28. In an attachment against a fraudulent debtor 
 (o), on exceptions filed for defects apparent on the record 
 (b), or on a denial under oath of the charges made in the 
 plaintiff's affidavit (c), the defendant shall be entitled as of 
 course to a rule to dissolve (d), to be heard as to the facts, 
 upon depositions duly taken (e). In other respects, the pro- 
 ceedings shall be the same as in the case of an attachment 
 execution (/). 
 
 (a) A debt not due is not sufficient to sustain a fradulent attach- 
 ment. Jones V. Brown, 167 Pa., 395. Alexander v. Driesen, 4 Lack. 
 Leg. News, 41. But it is not necessary that this should be true of the 
 whole debt sued on. Lewis v. Lehman, 2 Lack, Leg. News, loi. And 
 where the plaintiff has included more than he can maintain, it may be 
 eliminated by amendment, provided the substance of the claim is not 
 disturbed. Solomon v. Driesen, 2 Lack. Leg. News, 361. 
 
 (b) Exception may be taken that the affidavit is insufficient. Biddle 
 V. Black, 99 Pa., 380. But an affidavit in the words of the Act is 
 sufficient in the first instance. Sharpless v. Ziegler, 92 Pa., 467. And 
 much more is it, where there are specific charges of fraud. Werner 
 V. Zierfuss, 162 Pa., 360. Werner v. Gross, 174 Pa., 622. 
 
 (f) Where the defendant has denied, under oath, the charges 
 made in the affidavit, the burden is on the plaintiff to sustain them by 
 evidence. Holland v. Atzerodt, i Walk., 237. Bailey v. Parker, 2 Lack. 
 Jurist, 73. Matthews v. D'alsheimer, 10 W. N. C, 371. Morris v. Hine- 
 man, 9 Kulp., 498. 
 
 (rf) A motion to dissolve is too late after any step has been taken 
 which recognizes the validity of the proceedings. 4 Cyc, 784. Loewen- 
 stein V. Sheetz, 7 Phila., 361. Raub v. Morton, 2 Law Times (N. S.), 
 9. But not, after a bond by the defendant for the forthcoming of the 
 property, authorized by the statute, the property being still in legal 
 custody, and the defendant having thus an interest to contest the 
 regularity of the proceedings. 4 Cyc, 687. Maitland Driving Park v. 
 Fisk, 2 Lack. Leg. News, 210. Dienelt v. Aronica Fabric Co., 2 Pa. 
 Co. Ct., 206. Fernau v. Butcher, 113 Pa., 292. Even after an assign- 
 ment for the benefit of creditors, the defendant has a contingent in- 
 terest which entitles him to move to dissolve. Holland v. Atzerodt, 
 I Walk., 237. 
 
 (e) The action of the Court on the motion to dissolve is not re- 
 viewable, except for irregularities appearing on the record. Wetherald 
 v. Shupe, 109 Pa., 389. Hoppes v. Houtz, 133 Pa., 34. Hall v. 
 Oyster, 168 Pa., 399. Moss v. Mitchell, 174 Pa., 517. Lafferty v. Cor- 
 coran, 17s Pa., 5. Slingluff v. Sisler, 193 Pa., 264 
 
 (f) After a motion to dissolve has been refused, the question of 
 fraud is not open, and the only issue at the trial is as to the validity 
 of the plaintiff's claim. Walls v. Campbell, 125 Pa., 346. Slingluff v. 
 Sisler, 196 Pa., 121. 
 
R 29 MIDDLE DISTRICT RULES. 100 
 
 ATTORNEYS (a). 
 
 Rule 29. Any person of good moral and professional 
 character shall be entitled to admission (b) as an attorney and 
 counsellor of this court; who shall have been previously ad- 
 mitted to the Supreme Court of the United States; or to the 
 Court of Appeals of this or any other circuit; or, if a resident 
 of Pennsylvania, to the Supreme Court or the Superior Court 
 of that state; or, if not such resident, to the court of last 
 resort of the state or territory where he does reside. He 
 shall subscribe to the roll and take the following oath (c) : 
 
 "I do swear (or affirm) that I will demean myself as an 
 attorney and counsellor of this court (d) uprightly (e), and 
 according to law, and that I will support the Constitution of 
 the United States." 
 
 Attorneys and counsellors of other courts, who do not 
 possess the full qualifications required by the foregoing rule, 
 may be admitted specially, for the purposes of a particular 
 case, at the discretion of the court. 
 
 [East. Dist. (Pa.), Rule 3, Sect. i. West. Dist. Rule 7, 
 Sect. I.] 
 
 (o) The Federal Courts are authorized by statute to regulate by 
 rule who shall be permitted to manage and conduct cases therein. Rev. 
 Stat., Sect-. 747 ; except that parties may manage their own cases if 
 they so desire. Ibid ; and clerks and marshals, with their assistants 
 and deputies are prohibited from acting as to matters in their own 
 district. Rev. Stat, Sect. 748. Women are also eligible. Act Feb. 15, 
 1879. 20 Stat., 292. 
 
 (b) The admission of an attorney is a judicial act, as to which the 
 legislature may prescribe qualifications, but cannot otherwise control. 
 Ex parte Secombe, 19 How., 9. Ex parte Garland, 4 Wall., 378. 
 Brackenridge's Case, i S. & R., 187. Splane's petition, 123 Pa., 527. In 
 re Cooper, 22 N. Y., 67. Manning v. French, 149 Mass., 391. The 
 fee to be paid to the Clerk for admission is $1.00. Act Congress June 
 29, 1902. 32 Stat., 476; which includes tlie certificate. . 16 Comptrol- 
 ler's Dec, 372. 
 
 (c) The form of oath is that prescribed by the rules of the U. S. 
 Supreme Court, i Rose's Fed. Proc, Sect. 489. The English oath is,' 
 that the person admitted, "will truly and honestly demean himself 
 in the practice of an attorney, according to the best of his knowledge 
 and ability." i Tidd Prac, 70. The oath required by statute in 
 Pennsylvania is as follows : "You do swear (or affirm) that you will 
 support the constitution of the United States and of this Common- 
 wealth; and that you will behave yourself in the office of attorney 
 within this Court, according to the best of your learning and ability; 
 and with all good fidelity as well to the Court, as to the client; that 
 you will use no falsehood, nor delay any person's cause for lucre or 
 malice." Act April 14, 1834, Sect. 69, P. L., 354. For oath recom- 
 mended by Committee of American Bar Association, see 14 Pa. Bar 
 
101 MIDDLE DISTRICT RULES. R 30-31-32 
 
 Assoc. Reports, p. 270. For provisions of Mass. oath, see 39 Amer. 
 Law Review, p. 641. 
 
 (d) Attorneys are officers of the Court, but not officers of the 
 United States. Ex parte Garland, 4 Wall,, 333. Nat'l Savings Bank 
 V. Ward, 100, U. S., 195. 
 
 (e) An attorney violates his oath when he consciously presses for 
 an unjust judgment. Rush v. Cavenaugh, 2 Pa., 187. 
 
 Rule 30. Any attorney or counsellor admitted to prac- 
 tice in this court who is not a resident of the District or does 
 not maintain an office therein for the regular transaction of 
 business, shall, in each case or proceeding in which he appears, 
 have associate counsel, resident of and maintaining an office in 
 the District, whose appearance shall also be entered of record, 
 upon whom all notices, rules, and pleadings may be served in 
 accordance with the rules and practice of this court. And the 
 attendance of such associate counsel upon any motion, hearing, 
 or taking of testimony, shall be a sufficient appearance for the 
 party or parties whom he so represents. 
 
 [East. Dist. (Pa.), Rule 3, Sect. 4. West. Dist., Rule 7, 
 Sect. 3 and Rule 42.] 
 
 Where a non-resident attorney has appeared and acted, the appear- 
 ance, nunc pro tunc, of a resident attorney may be allowed so as to 
 comply with this rule. Byrne's Account, 17 Dist. (Pa.), 427. 
 
 Rule 31. An alphabetical roll shall be kept of the attor- 
 neys of the Court, in a book provided for the purpose, which 
 shall be signed by each at the time he is admitted, and shall 
 show his residence, the date of his admission, and upon 
 whose motion it was allowed. 
 
 As to the antiquity of this practice, see I Tidd, 71. The admission 
 of an attorney must be proved by the record, which is primarily' the 
 roll where his name is entered. Forster v. Cale, i Strange, 76. But 
 it may also be shown by a book into which the names are copied 
 alphabetically therefrom. Rix v. Crossley, 2 Esp., 526. Humphreys v. 
 Harvey, i Bingh. N. C, 62. Hence, when an attorney is disbarred, 
 the judgment is that he be stricken from the roll. Forster v. Cale, I 
 Stranpe, 76. Humphreys v. Harvey, i Bingh. N. C, 62. Per Park, 
 J. Where enrollment is required by statute before practicing, it can- 
 not be entered nunc pro tunc. Ex parte Fellows, 3 111. (2 Scam), 
 369. Where an attorney for proper reasons has changed his name, 
 the roll may be changed to correspond. In re James S, Exch., 310. In 
 re Dearden. Ibid, 740. Re Matthews, 16 Beav., 245. 
 
 Rule 32. Every attorney, appearing in a case, shall have 
 his name entered of record therein, which appearance shall 
 not be withdrawn, except by leave of court ; and (unless other- 
 wise provided by these rules) so long as it remains, any notice 
 required to be given in the case may be served upon him with 
 
R 33-34 MIDDLE DISTRICT RULES. 102 
 
 the same effect as if served upon the party whom he repre- 
 sents. 
 
 [West. Dist. (Pa.), Rule 7, Sect, i.] 
 
 An appearance by attorney once regularly entered cannot be with- 
 drawn except by leave of Court, and so long as it remains, the op- 
 posite party has the right to treat the attorney as the authorized rep- 
 resentative of the other on whom notice may be servd. U. S. v. 
 Curry, 6 How., 106. Creighton v. Kerr, 20 Wall., 8. Leave to with- 
 draw should not be given without notice. Daley v. Iselin, 212 Pa., 
 279- 
 
 If the attorney withdraws his appearance, although without leave, 
 the case may be treated as though there were no appearance and 
 judgment by default be enterd for want of it. Rio Grande Irrigation 
 Co. \ . Gildersleeve, 174 U. S., 603. A party has an absolute right 
 to change his attorney at any time ; and where the case has been taken 
 on a contingent fee of doubtful validity, the court as a condition to 
 substitution will not compel the party to pay for services rendered. 
 Silverman v. Penna. R. R., 141 Fed., 382. 
 
 Rule 33. Any attorney may be required (a) to file his 
 warrant of attorney (&), as of course, at the term to which he 
 declares' or appears (c) ; or afterwards, for cause shown. 
 
 (a) The subject of this rule is largely covered by statute in Penn- 
 sylvania. Act April 14, 1834, Sect. 71. P. L., 354. But Courts have 
 inherent authority to require an attorney to file his warrant under their 
 supervisory powers. King of Spain v. Oliver, 4 Wash. C. C, 429. 
 Commissioners v. Purdy, 36 Barb. (N. Y.), 266. 
 
 (b) The original warrant must be filed and not a copy. Common- 
 wealth V. Peterson, i Clark, 482. Neither will affidavits or letters take 
 its place. Fisler v. Reach, 202, Pa., 74. Day v. Adams, 63 N. C, 254. 
 But it need not be under seal. Kinnersley v. Mussen, 5 -Taunt, 264. 
 Osborn v. U. S. Bank, 9 Wheaton, 738. Grubb v. Serrill, i Del. Co., 
 141. And where it is for the plaintiff it must proceed from the party 
 in whom the right of action resides. Fisler v. Reach, 202 Pa., 74. 
 Hess V. Hess, i W. N. C, 194. Mississippi R. R. v. Southern R. R., 
 8 Phila., 107. City v. Strawbridge, 4 W. N. C, 215. But in a suit by 
 partners the warrant of a majority is sufficient. Clarke v. Slate Co., 
 136 Pa., 408. And the Auditor General is authorized to warrant for 
 the state in a suit to collect a license fee. Commonwealtli v. Dehner, 
 12 W. N. C, 223. 
 
 (c) A rule on an attorney to file his warrant is, in the first in- 
 stance, an office rule. Dunn v. Stone, 11 W. N. C, 95. And is a 
 matter of right if applied for in time. Mississippi R. R. v. Southern 
 R. R., 8 Phila.. 107. It is too late, however, after plea pleaded, except 
 for cause shown. Mercier- v. Mercier, 2 Dall., 142. Campbell v. 
 Galbreath, 5 Watts., 423. Sheetz v. Whitaker, 7 W. N. C, 570. 
 Rogers v. Crommelin, i Cranch, C. C, 536. Knowlton v. Plantation, 
 14 M-e., 20. Beckley v. Newcomb, 24 N. H., 359. 
 
 Rule 34. All agreements of attorneys (a), not made in 
 open court (b), shall be in writing, or otherwise they will not 
 be enforced. 
 
 [East. Dist. (Pa.), Rule 2.] 
 
103 MIDDLE DISTRICT RULES. R 35 
 
 (a) This is a salutary rule intended to prevent misunderstandings 
 and unpleasantness. Powell v. Tobias, 2 Phila., 274. Reamer's App., 
 18 Pa., 510. It has prevailed from an early day in Pennsylvania. 
 Shippen v. Bush, i Dall., 270. And exists very generally elsewhere. 
 Combs V. Wyckoff, i Caines Rep. (N. Y.), 147. Parker v. Root, 7 
 Johnson, 320. Huff v. State, 29 Ga., 424. Palatka R. R. v. State, 23 
 Fla., S46. Smith v. Wadleigh, 17 Me., 353. Suydam v. Dequindre, 
 Walk. Chan. (Mich.), 23. Roberts v. Partridge, 118 N. C, 355. 
 Livesey v. Pier, g Wash., 658. Evans v. State, 19 Fed. (Louis.), 676. 
 Lee v. Simpson, 42 Fed. (S. Car.), 434. In some states it is en- 
 forced by statute. Goben v. Goldsberry, 72 Ind., 44. State v. Stew- 
 art, 78 Iowa, 726. McCann v. McLennan, 3 Neb., 25. Merritt v. Wil- 
 cox, 52 Calf., 238. But it only applies to the ordinary routine of prac- 
 tice, and does not extend to an agreement with reference to a sher- 
 iff's sale. Reamers' App., 18 Pa., 510. 
 
 (b) Agreements in open Court stand on a different footing, and 
 are sufficiently evidenced by being noted on the journal by the clerk. 
 Lewis V. Wilson, 151 U. S., 551. 
 
 Rule 35. No attorney shall be accepted as bail or secur- 
 ity of any kind, in any matter depending in, or which may 
 come into Court (a) except by leave of Court (b) for cause 
 shown. 
 
 [East. Dist. (Pa.), Rule 3, Sect. 3, and Rule 5, Sect. 2. 
 West. Dist, Rule 9, Sect. 2.] 
 
 (a) This rule was adopted at an early day in the Ejiglish Courts. 
 I Tidd Prac.,'247. Doug., 466, n. i H. Black, 76. And it prevails 
 very generally in the United States. 4 Cyc, 919. Nor can there be 
 any question as to the power of the Court to so provide. Ohio R. R. 
 y. Hardy, 64 Ind., 455. It is intended, in part at least, for the bene- 
 fit of attorneys, to protect them from the importunity of clients. I 
 Tidd. Prac, 247. Although it is not confined to the case in which 
 the attorney is professionally engaged. I Chitty, 714, n. Gilbank v. 
 Stephenson, 30 Wis., 155. It is of importance in preventing unpleas- 
 ant relations between the Court and its attorneys, over questions of 
 financial responsibility, or because of having to enforce the security. 
 The moral influence on the bar is also salutary. Abbott v. Zeigler, 9 
 Ind., 511. The contrary practice borders. on champerty. 3 Amer. & 
 Eng. Encycl. Law, 2nd Ed., 291. But in the absence of a rule there is 
 nothing to prevent an attorney from becoming security. Abbott v. 
 Zeigler, 9 Ind., 511. 3 Amer. & Eng., Encycl. Law, 2 Ed., 292. And 
 while he cannot justify fn the face of it, if he is taken and not ex- 
 cepted to, he is liable, i Chitty., 714, n. 4 Cyc, 919. 3 Amer. & Eng. 
 Encyc. Law, 2 Ed., 292. 
 
 (6) The violation of the rule is a contempt. Wallace v. Scoles, 6 
 Ohio, 429. Ohio R. R. V. Hardy, 64 Ind., 455. But the proceedings 
 will not, in the first instance, be dismissed, but the party will be al- 
 lowed to remedy the defect. Branger v. Buttrick, 30 Wis., 153, Ohio 
 R. R. v. Hardy, 64 Ind., 455. To prevent evasion, the rule is held to 
 extend to persons indemnified by the attorney. Capon v. Dillamore, i 
 Bingh., 423. Hunt v.' Blaquire, 4 Bingh., 488. Anon, i Dowl. Prac. 
 Cases, I. But in some Courts this is covered by special rule. Green- 
 sill v. Hopley, i Bos., & Pul., 103. Chick's Bail, i Chitty, 714. n. 
 
R 36-37-38 :middle district rules. 104 
 
 AUDITORS. 
 
 Rule 36. Where the proceeds of any marshal's or other 
 execution or judicial sale are brought into court and referred 
 to an auditor for distribution, public notice of the time and 
 place of hearing shall be given by the auditor by advertise- 
 ment for three successive weeks in two newspapers to be 
 designated by the court, which are published in the county 
 where the case originated, or the principal parties interested 
 are found ; in which notice all persons shall be required to make 
 known their claims before the auditor or be debarred from 
 coming in upon the fund. And a like notice shall be posted 
 in the clerk's office at least ten days before the hearing. This 
 rule shall also apply to the auditing of the accounts of trustees, 
 receivers, or others acting in an official or fiduciary capacity. 
 [East. Dist. (Pa.), Rule 4, Sect. 2. West. Dist., Rule 8.] 
 
 Rule 37. In any case referred to an auditor, any person 
 desiring an issue shall reduce his request to writing, stating 
 the facts that are in dispute, which shall be verified by affi- 
 davit, and submit the same to the auditor within two days 
 after the conclusion of the hearing. And it shall be the duty 
 of the auditor to forthwith make report thereof to the court 
 together with his opinion upon the propriety of granting the 
 same. 
 
 [East. Dist. (Pa.), Rule 4, Sect. 3.] 
 
 Rule 38. Any person adversely affected by the report of 
 an auditor may except thereto, and in order to afford opportu- 
 nity therefor no auditor shall file his report until ten days 
 after he has notified the parties who appeared before him, of 
 his intention so to do, on a day designated, giving them access 
 to his report, meanwhile; and unless justice requires it, no 
 exception, not filed before the auditor, shall be considered by 
 the court. Upon exceptions being filed, it shall be the duty 
 of the auditor to re-examine the matters excepted to, and 
 correct his report, if they are found in whole or in part to be 
 well taken. The exceptions so filed shall be returned by the 
 auditor, along with his report, which shall be confirmed nisi 
 by the clerk when filed and if no exceptions be taken thereto 
 within ten days it shall be confirmed finally. If no exceptions 
 are returned by the auditor, the report shall be confirmed 
 absolutely by the clerk, when filed. 
 
 [East. Dist. (Pa.), Rule 4, Sect. i. West. Dist, Rule 8.] 
 
105 MIDDLE DISTRICT RULES. R 39-40-41-42 
 
 BAIL. 
 
 Rule 39. No capias ad respondendum shall issue unless 
 an affidavit of due cause of action, stating the facts, shall be 
 first made and filed. Nor shall bail be demanded thereon, 
 exceeding $1,000 unless specially allowed by one of the judges 
 of the court. 
 
 [East. Dist. (Pa.), Rule 5, Sects, i and 6. West. Dist., 
 Rule 9, Sect, i.] 
 
 Rule 40. No attorney (a), marshal, marshal's officer, 
 bailiff, or other person concerned in the execution of process, 
 shall become bail or security thereon or in any matter de- 
 pending in or to come before the court, except by leave of 
 court for cause shown. And if bail is entered in disregard of 
 this rule it may be stricken off upon motion. 
 
 [East. Dist. (Pa.), Rule 5, Sect 2. West. Dist., Rule 9, 
 Sect. 2.1] 
 
 (a) See also Rule 35, supra. 
 
 Rule 41. It shall be the duty of the marshal, upon taking 
 bail to the action, to give notice in writing of the names and 
 places of residence of such bail, to the plaintiff in the action, 
 his agent or attorney, on or before the return day of the writ. 
 
 This is required of the sheriff, by statute, in Pennsylvania. Act 
 June 13, 1836, Sect. 13. P. L., 574. 
 
 Rule 42. Bail taken by the marshal may be excepted to 
 by the plaintiff, at any time within twenty days after the return 
 day of the writ, of which due notice shall be given to the 
 marshal. Exceptions to such bail must be made in writing 
 and filed with the clerk, and notice given to the defendant to 
 justify, which he shall be required to do, or substitute or 
 add new bail, within ten days thereafter. In case of the 
 justification, addition, or substitution of bail, the plaintiff shall 
 be entitled to five days' notice in writing of the time and place 
 of doing so, which notice, in case of additional or new bail, 
 shall state the residence and occupation of such bail and the 
 property owned by him. 
 
 [East. Dist. (Pa.), Rule 5, Sects. 3 and 4. West. Dist., 
 Rule 9, Sects. 4 and 5.] 
 
 The Courts of Pennsylvania are authorized by statute to make "such 
 rules respecting the time and manner of giving notice of bail, except- 
 ing to bail, and justifying bail * * * as the convenient administration 
 of justice in such Court may require." Act June 13, 1836, Sect. 15, 
 
R 43-44 MIDDLE DISTRICT RULES. 106 
 
 P. L., 574. Where bail is excepted to, and is not justified, the proper 
 course is to rule the marshal to bring in the body, and compel the 
 defendant to put in good bail or pay into Court the sum demanded. 
 Filler v. Bryson, 6 W. & S., $66. And the Court will enforce obedience 
 to the rule by attachment. White v. Fitler, 7 Pa., 533. The right 
 to except may be waived by acts which manifest such an intention. 
 Murtland v. Wright, 7 W. N. C., 388. As where exceptions are taken 
 but not persisted in. Fitler v. Bryson, 6 W. & S., 566. Cummings v. 
 Meeker, 2 M., 83. White v. Fitler, 7 Pa., 533. But this does not dis- 
 charge the bail. Commonwealth v. Heilman, 4 Pa., 455. 
 
 Rule 43. A rule to show cause of action, and why the 
 defendant should not be discharged on common bail, is of 
 course, but must be taken within ten days after the return day 
 of the writ (a). 
 
 [East. Dist. (Pa.) Rule 5, Sect. 5. West. Dist. Rule 9, 
 Sect. 6.] 
 
 (a) For practice, see Logan v. O'Neill, 34 W. N. C, 281. 
 
 BILLS OF EXCEPTIONS (a). 
 
 Rule 44. Bills of exceptions shall be settled and filed at 
 the term at which the case is tried, or at a time beyond it to 
 which by order of court the settlement of the same is enlarged 
 (b). Or where a rule for a new trial is pending, they may be 
 settled at any time before it is discharged (c). 
 
 [East. Dist. (Pa.), Rule 10, Sect. 3. West. Dist, Rule 10, 
 Sect. 2.] 
 
 (a) For form of a bill of exceptions, see i Loveland Fed. Forms, 
 Nos. 138 & 139. As to what such bills shall contain, see C. C. A. Rules, 
 Third Circuit, Rule 10, Sects, i & 2. See also Atlantic Coastline 
 V. Linstedt, 184 Fed., 36. The authentication of such bills is regulated 
 by Rev. Stat., Sect 953, as amended by Act June 5, 1900, 31 Stat., 270. 
 A bill must be disregarded which is not signed by the trial judge. 
 Knight V. Illinois Central R. R., 180 Fed., 368. 
 
 (&) The general rule with regard to the allowance of bills of ex- 
 ceptions is thus stated by Mr. Justice Gray, Bank v. Eldred, 143 U. S., 
 293 : "By the uniform course of decision, no exceptions to rulings at 
 a trial can be considered by this Court unless they were taken at the 
 trial, and are also embodied in a formal bill of exceptions, presented 
 to the Judge at the same term, or within a further time allowed by 
 order entered at that term, or by standing rule of Court, or by 
 consent of parties ; and save under very extraordinary circumstances, 
 they must be allowed by the Judge and filed with the clerk during the 
 same term. After the term has expired without the Court's control 
 over the case being reserved by standing rule, or special order, and 
 especially after a writ of error has been entered in this Court, all au- 
 thority of the Court below to allow a bill of exceptions then first pre- 
 sented, or to alter or amend a bill of exceptions already allowed and 
 filed is at an end." 
 
107 MIDDLE DISTRICT RULES. R 45 
 
 Bills of exceptions cannot be allowed nunc pro tunc after the term 
 has expired unless control of the case has been reserved by rule or 
 order. Jones v. Grover, & Baker Sewing Machine Co., 131 U. S. cl. 
 Michigan Ins. Bank v. Eldred, 143 U. S., 293. Reader v. Haggin, 160 
 Fed., 909. Wyss v. Maryland Casualty Co., 193 Fed., 53. And an 
 exception to the action of the court, allowing judgment for the de- 
 fendant non obstante veredicto, is too late after the next term has be- 
 gun. McCord V. Bait. & Ohio R. R., 187 Fed., 743. But there may 
 be exceptional circumstances, under which a bill of exceptions can 
 be signed after the expiration of the term; as where the exhibits were 
 mislaid and unable to be found before. Pittsburgh Gas & Coke Co. 
 V. Goff-Kirby Coal Co., 151 Fed., 466; or the stenographer is unable 
 to transcribe his notes in time. Dalton v. Gunnison, 165 Fed., 873 ; or 
 the trial judge by reason of illness is unable to sign the bill. Roberts 
 V. Bennett, 135 Fed., 748. The consent of the opposite party to the 
 settlement of a bill after the term will not be implied, where he sim- 
 ply attends on notice and remains silent. Jennings v. Phila. Bait. & 
 Wash. R. R., 218 U. S., 255. A standing rule does not prevent the 
 court from granting additional time for filing a bill. U. S. v. Waite, 193 
 Fed., 258. And the Court, even after the term, may correct the mis- 
 takes or misprisions of the clerk. In re Wight, 134 U. S., 136. Ommen 
 V. Talcott, 180 Fed., 925. And see Metropolitan Trust Co., 218 U. S., 
 312. The court, by an order made at the trial term, may continue the 
 settling of a bill to a time beyond. Minahan v. Grand Trunk R. R., 
 138 Fed., 37. Where a bill of exceptions was duly settled and certified, 
 but was not filed in time nor served as required by the rules, it will 
 be assumed on appeal that the court relaxed its rules for good cause 
 shown. Seattle v. Board of Home Missions, 138 Fed., 307. 
 
 (c) A bill of exceptions may be settled and filed at the term at 
 which a rule for a new trial is discharged. Merchants Ins. Co. v. 
 Buckner, g8 Fed., 222. Kentucky Distilleries Co. v. Lillard, 160 Fed., 34. 
 
 Rule 45. No bills of exceptions to the admission or 
 rejection of evidence shall be allowed unless objection was 
 made and noted at the time (o). Exceptions to the charge of 
 the court and the answers to points must specify the particular 
 part of the charge or the particular answer objected to, and a 
 general exception will not be allowed (b). They may be 
 taken after the jury have retired, but must be taken before they 
 have returned with their verdict (c). 
 
 [East. Dist. (Pa.), Rule 10, Sects. 2 and 3. West. Dist., 
 Rule 10, Sect, i.] 
 
 (a) The ground of objections must be stated. A recital in the rec- 
 ord with regard to the answer to a question, "excepted to, admitted, 
 objection noted," is not sufficient. Atlantic Coast Line v. Linstedt, 184 
 Fed., 36; and an exception to the charge, "so far as the instructions 
 are inconsistent with requests for rulings," is bad. Partridge v. Bost. 
 & Maine R. R., 184 Fed., 211. The ground of the exceotion must be 
 specified in order that the court shall have its attention directed to 
 the error alleged to have been committed and be able to correct it. 
 Merchants' Ins. Co. v. Buckner, no Fed., 345. Aetna Indemnity Co. 
 v. Farmers Nat. Bank, 169 Fed., 737. 
 
R 46-46 a MIDDLE DISTRICT RULES. 108 
 
 (b) A general exception to the charge is prohibited by the Rules 
 of the Supreme Court (Rule 4), as well as by those of the Court of 
 Appeals of this circuit (Rule 10). 
 
 (c) Since this rule was adopted, the Court of Appeals of this cir- 
 cuit has promulgated a rule which requires that exceptions shall be 
 taken before the jury have retired. C. C. A., Rule 10, Sect. i. 
 Star Co. V. Madden, 188 Fed., 910. This is not a" mere formal or 
 technical provision, but is in the interest of justice in order that there 
 may be opportunity for correction if the court is advised of the need 
 of it in time. Phelps v. Mayer, 15 How., 160. The fact that excep- 
 tion was taken to the charge before the jury had retired must appear 
 in the record. Sheppard v. Wilson, 6 How., 260. Mann v. Dempster, 
 179 Fed., 837. Star v. Madden, 188 Fed., 910. A rule of court which 
 permits of exceptions to the charge after the jury have retired, but 
 before they have returned will not be regarded to apply generally, but 
 only where it is in the interest of justice, in order to avoid confusing 
 the jury, or where instructions' have been given in the absence of 
 counsel. Montana Mining Co. v. St. Louis Mining & Milling Co., 147 
 Fed., 897. But where the court directed the jury to retire before the 
 party had an opportunity to except, this may itself be made the ground 
 of an exception, which will call for a reversal. Western Union Tel. 
 Co. V. Baker, 85 Fed., 6go. Berwind-White Coal Co. v. Firment, 170 
 Fed., 151. Mann v. Dempster, 179 Fed., 837. In the absence of a rule 
 it would seem to be enough that exceptions to the refusal of the court 
 to a party's requests were noted at the trial in open court, although 
 after the jury had retired. Gandia v. Pettingill, 222 U. S., 452, 459. 
 
 Rule 46. Bills of exceptions shall state the issues tried, 
 and the evidence given on either side to sustain them (elimi- 
 nating all irrelevant matters) together with the charge of the 
 court, or so much thereof as is material to a proper under- 
 standing of the case. Copies of proposed bills shall be submit- 
 •ted to opposing counsel not less than five days before they 
 are presented to the court for allowance. 
 
 [East. Dist. (Pa.), Rule 10, Sect. 3.] 
 
 See I Loveland Fed. Forms, Nos. 138 & 139 for forms of such bills. 
 Bills of exceptions will be assumed to contain all the relevant testi- 
 mony, whether so stated or not. Clyatt v. U. S., 167 U. S., 207. 
 
 COMMISSIONERS. 
 
 Rule 46 a. United States Commissioners of this District 
 shall mail or send to the office of the Marshal at Scranton, all 
 process issued by them for the arrest or apprehension of 
 alleged criminal ofifenders, in order that such process may be 
 noted on the Marshal's docket before being executed; pro- 
 vided, that, in any case, where the delay caused by mailing 
 or sending such process to the Marshal's office would materi- 
 ally increase the expense of the proceeding, or permit the de- 
 fendant to escape, or where for other good reason it is im- 
 
109 
 
 MIDDLE DISTRICT RULES. R 46 b-47 
 
 portant that the writ shall be served without this delay, the 
 Commissioner issuing the writ may hand the same to the 
 Marshal or one of his Deputies, but in no instance to any 
 other person, and shall further enter at large upon his docket 
 the necessity for this action, and state the same briefly in his 
 accounts. 
 
 Rule 46 b. Immediately upon the termination of any case 
 pending before a United States Commissioner of the district, 
 he shall transmit to the clerk a complete transcript of the 
 proceedings had, together with the original warrant, informa- 
 tion, subpoena, recognizance or commitment, and all other 
 papers. 
 
 CONDEMNATION PROCEEDINGS. 
 
 Rule 47. In all cases, where property is sought to be 
 condemned by the government (a) in pursuance of authority 
 for that purpose given by law (b) ; or has been taken, injured, 
 or destroyed, by any municipal or other corporation under the 
 power of eminent domain (c), or as the result of a municipal 
 improvement (d) ; application for the appointment of viewers 
 to assess the damages shall be by petition which shall set 
 forth the property taken or affected, together with a map or 
 plot of the same, the names of the owner or owners thereof, 
 and such other facts as are necessary to give jurisdiction. 
 And ten days' notice in writing of the intended application 
 shall be given to the opposite party or others interested, which 
 shall be served in the manner provided for the service of a 
 summons. The practice, pleading, forms, and modes of pro- 
 cedure, in other respects, shall conform to those existing at 
 the time in like cases in the state courts (e). 
 
 (fl) For form of petition, see i Loveland Fed. Forms, Nos. 152, 153 
 & 154. 
 
 (6) Proceedings for the condemnation of land for the improve- 
 ment of rivers and harbors are regulated by Act of Congress, of 
 April 24, 1888. 25 Stat, 94. And those for the condemnation of sites 
 for public buildings and other public uses, by Act of August I, 1888. 
 25 Stat., 357 ; jurisdiction being vested by the latter in the District 
 Court of the district where the lands lie. And this is extended to 
 proceedings to condemn land by the Gettysburg Battlefield Commis- 
 sion, by Act. Feb. 11, 1895, 28 Stat, 651; the validity of which has 
 been sustained. United States v. Gettysburg R. R., 160 _U. S., 668. 
 But costs cannot be taxed in such cases against the United States. 
 Carlisle v. Cooper, 64 Fed., 472. 
 
 (c) A proceeding to condemn, under the state law, is an action at 
 law, within the meaning of the judiciary Act of 1789, of which the 
 
R 48 MIDDLE DISTRICT RULES. 110 
 
 Courts of the United States have jurisdiction under the general grant 
 of authority thereby conferred. Kohl v. United States, 91 U. S., 367. 
 In re Rugheimer, 36 Fed., 374. Proceedings of that character, begun 
 in the state Courts may therefore be removed into the Federal Courts 
 under the removal statutes. Boom Co. v. Patterson, 98 U. S., 403. 
 Pacific R. R. Removal cases, 115 U. S., 3. Searl v. School Dist., 124 
 U. S., 197. Martin v. Bait. & Ohio R. R, 150 U S, 673. Mineral R. R. 
 V. Lake Copper Co., 25 Fed., 520. Kansas City R. R. v. Interstate 
 Lumber Co., 37 Fed., 4. Sugar Creek R. R. v. McKell, 75 Fed., 35. 
 Postal Tel. Co. v. Southern R. R., 88 Fed., 804. Union Terminal R. R. 
 V. Chic. B. & Q. R. R., 119 Fed., 209. South Dakota Cent. R. R. 
 V. Chic. M. & St. P. R. R., 141 Fed., 578. Helena Power Co. v. 
 Spratt, 146 Fed., 310. Kansas City v. Hennegan, 152 Fed., 249. So 
 may an assessment proceeding for a municipal improvement. In re 
 City of Chicago, 64 Fed., 898; or an appeal from the decision of the 
 state engineer with regard to a permit to appropriate water. Waha- 
 Lewiston Co. v. Lewiston-Sweetwater Irrigation Co., 158 Fed., 137. 
 Nor can the state defeat the right to remove by changing the form of 
 the action. Wilson v. Smith, 66 Fed., 81. 
 
 (d) A Federal Court also has jurisdiction to appoint viewers in 
 an original proceeding on the petition of a citizen of another state, 
 whose property has been taken for a municipal improvement. In 
 re Delafield, 109 Fed., 577. 
 
 But a petition to railroad commissioners for leave to condemn is not 
 removable. New York &c., v. Crockcroft, 46 Fed., 881. Nor proceed- 
 ings to determine the right to condemnation. Hartford & C. W. R. 
 Co. V. Montague, 94 Fed., 227. Nor an appeal from an assessment of 
 taxes, where the Court with respect to such proceedings is not a 
 judicial body, but acts merely as a board of commissioners. Upshur 
 Co. V. Rich, 13s U. S., 467. But it would seem to be otherwise where 
 the appeal proceeds according to judicial methods. Ibid. 
 
 (e) Conformity to the state practice is prescribed by Act of August 
 I, 1888, Sect. 2. 25 Stat, 327. Broadmoor Land Co. v. Curr, 142 Fed., 
 421. In re Rugheimer, 36 Fed., 369. Carlisle v. Cooper, .64 Fed., 472. 
 In re Secretary of Treasury, 45 Fed., 396, Chappell v. United States, 
 81 Fed., 764, 160 U. S., 499. United States v. Engeman, 45 Fed., 546. 
 As to the proper practice under the state law, see Emery v. Pa. 
 Monongahela & Southern R. R., 15 Dist. (Pa.), 149. The mere fact, 
 that by the state practice the land owner is described as the plaintiff, 
 does not prevent a removal by him as the practical defendant in the case. 
 Mason City &c. R. R. v. Boynton, 204 U. S., 570. 
 
 COSTS («.). 
 
 Rule 48. Where the plaintiff in any action at law or suit 
 in equity is not a resident of the district (b), or, being so at 
 the time of suit brought, afterwards removes therefrom; and 
 in any case in which the defendant, his agent or attorney, shall 
 make oath that the costs, as he verily believes, stating his 
 reasons, could not be recovered of the plaintiff on execution; 
 the defendant, upon filing an affidavit that he has a just de- 
 fence against the whole of the plaintiff's demand, may have a 
 rule on the plaintiff to give security for costs within a time 
 
Ill MIDDLE DISTRICT RULES. R 48-n 
 
 designated (c), and, in the meantime, proceedings shall be 
 stayed; and, on failure to give such security, a judgment of 
 non pros may be entered on motion. 
 
 [East. Dist. (Pa.), Rule 9, Sect. i. West. Dist., Rule 11, 
 Sect. 6.] . 
 
 (a) By Revised Statute, Section 968, the plaintiff in an action at 
 law originally brought in the District Court or a petitioner in equity 
 who recovers less than $500 exclusive of costs in a case which cannot 
 be brought there unless the amount in dispute, exclusive of costs, 
 exceeds that amount "shall not be allowed, but at the discretion of 
 the court may be adjudged to pay, costs." This provision is not affect- 
 ed by the fact that the jurisdictional limit of the court has been raised 
 since this enactment. Eastman v. Sherry, t,-j Fed., 844, Johnson \. 
 Watkins, 40 Fed., 187. It does not apply, however, where a statute 
 expressly provides that a plaintiff shall have full costs regardless of 
 the amount recovered. Merchant v. Lewis, I Bond, 172; nor does it 
 apply to cases of removal from a state court, such cases not being 
 "originally brought" in the District Court within the terms of the law. 
 Field V. Schell, 4 Blatchf., 435. Kreager v. Judd, 5 Fed., 27. Costs are 
 also recoverable in an action against joint defendants where the total 
 sum recovered exceeds $500, although the amount collectible against 
 each defendant may be less. Johnson v. Mississippi &c. R. R., 31 Fed., 
 551. Neither are costs to be denied upon an action by a receiver of a 
 national bank to recover assets. Murray v. Chambers, 151 Fed., 142. 
 Nor is a plaintiff who -recovers less than $500. to be penalized for 
 costs unless it appears to the satisfaction of the court that the dam- 
 ages claimed were colorable. McCarthy v. American Thread Co., 143 
 Fed., 678. 
 
 But where nominal damages only are recovered, the statute pro- 
 hibits the allowance of an attorney fee given in a suit under the in- 
 terstate commerce law. Del., Lack. & Western R. R. v. Lyne, 193 
 Fed., 984. 
 
 (&) Security for costs may be required of a non-resident plaintiff 
 where this is in accordance with the state practice. Schofield v. 
 Palmer, 134 Fed., 753. Handy Varnish Co. v. Midland Linseed Oil Co., 
 191 Fed., 256; or a rule of court. Osborne v. Pennsylvania R. R., 159 
 Fed., 301. 20 Amer. Bank. Rep., 277. Winkley v. Bowen Mfg. Co., 
 180 Fed., 624. Karns v. Imlay, 181 Fed., 751. But see this doubted in 
 Woods V. Bailey, in Fed., 121. 
 
 A non-resident plaintiff may be required to give security for costs 
 even where a resident plaintiff is joined. Electric Vehicle Co. v. Gal- 
 lagher, 14s Fed., 394. A trustee in bankruptcy, if a non-resident, comes 
 within the rule. Osborne v. Pennsylvania R. R., 20 Amer. Bank. Rep., 
 '^77 \ 159 Fed., 301. Parties who sign gupersedaes cost or delivery 
 bonds voluntarily connect themselves with the suit in such a manner 
 as to subject themselves to the jurisdiction of the court, in which 
 the suit is pending and to a summary judgment upon their under- 
 taking, when the amount of their liability can be ascertained with- 
 out an issue and trial. Egan v. Chic. & Great West R. R., 163 Fed., 
 
 344- 
 
 (c) By proceeding with the case without requiring security, the 
 right to it is waived. Winkley Co. v. Bowen Mfg. Co., 180 Fed., 624. 
 
R 49-50-51 MIDDLE DISTRICT RULES. 112 
 
 Rule 49. Bills of costs duly verified by affidavit shall 
 be taxed by the clerk as filed, subject to a re-taxation by the 
 same, upon exceptions taken, on five days' notice to the opposite 
 party or his attorney. Such exceptions shall specify the items 
 objected to, with the reasons therefor, and be, sustained by 
 affidavit; and the party fihng the bill shall thereupon be re- 
 quired to maintain the same by evidence or otherwise, to 
 which the excepting party shall be entitled to reply in like 
 manner. The clerk shall keep a record of the proceedings be- 
 fore him on the re-taxation; and from his final action therein 
 an appeal may be taken to the court, to be entered within 
 ten days after notice of his decision. In case the party except- 
 ing neglects to move for a re-taxation, the party filing the 
 bill, upon five days' notice, may have the exceptions brought 
 to a hearing or dismissed, as he prefers. No exceptions or 
 appeal shall operate to stay the payment or collection of the 
 costs, but the items excepted to, if paid, shall be retained by 
 the clerk until the exceptions or appeal have been finally 
 disposed of. 
 
 [East. Dist (Pa.), Rule 9, Sects. 2, 3 and 4.] 
 
 Rule 50. The clerk shall not be required to enter any 
 suit, file any paper, or issue any process, nor shall the mar- 
 shal be required to serve the same or perform any service, 
 unless the fees therefor shall be first paid by the party re- 
 questing the same. 
 
 [West. Dist (Pa.), Rule 11, Sect. 5.] 
 
 A clerk i.s entitled to hi.s fees in advance. Ommen v. Talcott, 180 
 Fed., 925. Hoysradt v. D. L. & W. R. R., 182 Fed., 880. 
 
 Rule 51. In all cases prosecuted to final judgment, or 
 settled by the parties, in which the costs have not been paid 
 or provided for, the clerk or marshal, to whom they are due, 
 shall be entitled to a rule on the party against whom such 
 judgment is entered, or in favor of whom such settlement 
 was made, to pay his costs, in default of which, execution 
 may issue in the name of such clerk or marshal, therefor 
 (a). And where no steps have been taken in a case, by either 
 party, for two years or more, on application of the clerk or 
 other officer of the court, to whom costs are due, the court may 
 order the same to be taxed, and require the plaintifT to pay 
 them, and in default thereof may enter judgment of non-pros. 
 
 [East. Dist. (Pa.), Rule 9, Sects. 5, 6 and 7. West. Dist., 
 Rule II, Sects. 2 and 3.] 
 
113 MIDDLE DISTRICT RULES. R 52-53 
 
 (a) An execution may issue in favor of the clerk or marshal in the 
 name of the successful party for the costs due. Ranck v. Hill, 3 Pa., 
 423. Ellsbre v. Ellsbre, 28 Pa., 172. Howard Build. Assoc, v. Phila. 
 & Read. R. R., 102 Pa., 220. Hoysradt v. D. L. & W. R. R., 182 Fed., 
 880. 
 
 Rule 52. Where a case is prosecuted in forma pauperis, 
 in accordance with the statute, the foregoing rules, with re- 
 gard to giving security for, or requiring the payment of costs, 
 shall not be enforced. 
 
 See Act of Congress July 20, 1892, 27 Stat., 252. Woods v. Bailey, 
 III Fed., 121. 113 Fed., 390. 
 
 For form of affidavit in such cases, see I Loveland Fed. Forms, p. 
 79- In some districts a certificate of counsel is further required. 
 Ibid, p. 80. 
 
 But neither an appeal nor a writ of error can be prosecuted in forma 
 pauperis. Galloway v. Fort Worth Bank, 186 Fed., 177. Bradford v. 
 Southern Ry., 195 Fed., 243. 
 
 If the defendant disputes the affidavit he may move to dismiss. 
 Woods V. Bailey, 113 Fed., 390. 
 
 The plaintiff is not precluded from suing in forma pauperis by rea- 
 son of non-residence. Willis v. Willis, 20 Dist. (Pa.), 720. 
 
 Where the suit is prosecuted by plaintiff's attorney for a contingent 
 fee, it must be shown that the attorney as well as his client is unable 
 by reason of poverty to give the required security. Phillips v. Louis- 
 ville & Nashville R. R., 153 Fed., 795. 
 
 DEPOSITIONS. 
 
 Rule 53. A rule to take the depositions of witnesses ex 
 parte, to be read upon the hearing of a motion, petition, or 
 rule to show cause (a), shall be of course, on five days' notice 
 (&) to the opposite party or his attorney, of the names of the 
 witnesses to be examined, and the time and place of taking 
 the same, if it is to be executed within the circuit, or ten days, 
 if outside of it. The testimony may be taken before a com- 
 missioner specially appointed by the court for the purpose, 
 or before any person competent to administer an oath under 
 the federal or the state law. The witnesses shall be exam- 
 ined orally, in the presence of the parties and their counsel, 
 as nearly as may be in the manner that they would be in 
 court; and their depositions shall be reduced to writing in the 
 form of question and answer, and be read over to them and 
 signed ; or, by agreement of counsel they may be taken in narra- 
 tive form ; and by like agreement the reading and signing 
 may be dispensed with. Depositions taken by the moving 
 party shall be filed at least ten days before the hearing, and 
 counter depositions, taken by the opposite party, at least one 
 
R 54 MIDDLE DISTRICT RULES. 114 
 
 day before the same, or otherwise they will not be considered 
 by the court (c). 
 
 [East. Dist (Pa.), Rule 8, Sect. 4.] 
 
 (o) See also Rule 22, supra. 
 
 (6) For form of notice, see I Loveland Fed. Forms, 181. 
 
 (c) The taking of depositions de bene esse under Rev. Stat., Sects. 
 863, 865, is another matter. When depositions are taken by rule of 
 court, these sections do not apply. Banert v. Day, 3 Wash. C. C, 243. 
 
 Rule 54. Depositions de bene esse (a), to be used on the 
 trial of a cause, of aged, infirm, or way-going witnesses, or 
 those who reside more than one hundred miles from the place 
 of trial (b), or of one who is the only witness to a material 
 fact, shall be of course, and shall be taken and returned in the 
 manner provided by law. 
 
 [East. Dist. (Pa.), Rule 8, Sect. i. West. Dist., Rules 37 
 to 40, inclusive.] 
 
 (a) The authority to take depositions is to be strictly construed, 
 and the requirements of the law must be complied with. Bell v. Morri- 
 son, I Pet., 351. Potapsco Ins. Co. v. Southgate, 5 Pet., 604. Harris 
 V. Wall, 7 How., 693. Walsh v. Rogers, 13 How., 283. The taking 
 of depositions de bene esse was originally regulated by Rev. Stat., 
 Sects., 863, 864 & 865. But by Act March 9, 1892, 27 Stat., 7, they may 
 now also be taken in the mode prescribed by the state law. This act, 
 however, only applies to the mode of taking them. It does not enlarge 
 the instances when this character of proof can be resorted to. Nat'l 
 Cash-Reg. Co. v. Leland, 77 Fed., 242, S. C. 94 Fed., 502. Texas & 
 Pacific R. R. V. Wilder, 92 Fed., 953. Shellabarger v. Oliver, 64 Fed., 
 306. Tabor v. Indianapolis Journal, 66 Fed., 423. Seeley v. Kansas 
 City Star, 71 Fed., 554. Despeaux v. Pennsylvania R. R., 81 Fed., 
 897. Zych v. Amer. Car Co., 127 Fed., 723. It simply provides for the 
 taking of such depositions as are authorized by the Federal law, 
 either according to the State or to the Federal practice. United 
 States V. Fifty Boxes, 92 Fed., 601. Hanks Dental Assoc, v. Tooth 
 Crown Co., 194 U. S., 303. It will not support therefore an order for 
 the examination of a party before trial however authorized by the 
 state law. Hanks Dental Assoc, v. Tooth Crown Co., 194 U. S., 303. 
 Ex parte Fisk, 113 U. S., 713. United States v. Fifty Boxes, 92 Fed., 
 601. Smith V. Internat'l Mercantile Co., 154 Fed., 786. Nor can a 
 witness be called as for cross examination under a state statute allow- 
 ing it, or at least not in equity or admiralty. Dravo v. Fabel, 132 
 U. S., 487. Jacobs V. Van Sickle, 127 Fed., 62. But see Davidson Co. 
 V. United States, 142 Fed., 315. Mississippi Glass Co. v. Franzen, 143 
 Fed., 501. Nor can a party be compelled to produce books and papers 
 before the trial. Carpenter v. Winn, 221 U. S., 533. For the same 
 reason the testimony of a witness taken at a former trial cannot be 
 read from the stenographer's notes of it, even though authorized by 
 the state law. Salt Lake City v. Smith, 104 Fed., 457. Diamond Coal 
 & Coke Co. V. Allen, 137 Fed., 705. A rule of court providing that 
 the depositions of witnesses may be taken without regard to whether 
 they are aged, way-going or infirm, is not justified by the Pennsyl- 
 vania prac'ice. Internat'l Ccal Mining Co. v. Pennsylvania R. R., 214 
 
115 MIDDLE DISTRICT RULES. R 55 
 
 Pa,, 469. And even where the state practice allows an open commis- 
 sion to take the testimony of unnamed witnesses to be examined orally, 
 it will only be granted by the Federal Courts under the most excep- 
 tional circumstances, if at all. Wallace v, Appleton, i6x Fed., 884. 
 Nor can the testimony of foreign witnesses be taken de bene esse, but 
 must be taken on a commission or dedimus potestatem. Compania 
 Azucarera Cubana v. Ingraham, i8o Fed., 516. 
 
 Depositions de bene esse, in equity, are to be taken as provided by 
 Equity Rule 67. 
 
 The provisions of Rev. Stat., Sects. 863, et seq,, do not apply to 
 depositions taken under a rule of Court. Banert v. Day, 3 Wash. 
 C. C, 243 ; nor to those taken in a foreign country. Bird v. Halsey, 
 87 Fed., 671. 
 
 For mode of taking depositions for use at the trial under the state 
 law, see Act (Pa.), June 25, 1895. P. L., 279. 
 
 Forms appropriate to the present rule may be found in i Loveland 
 Fed. Forms, Nos. 181 to 184 inclusive. 
 
 As to the authentication of exhibits offered in the course of taking 
 depositions, see Rule 7, supra. 
 
 Even as to depositions taken abroad, the examination may be oral. 
 Bischoffscheim v. Beltzer, lo Fed., 4. Cortes v. Tannhauser, 18 Fed., 
 667. 
 
 A subpoena duces tecum on the taking of depositions de bene esse 
 is not of course, but must be moved for. Dancel v. Goodyear Shoe 
 Co., 128 .Fed., 753. Contra. Henning v. Boyle, 112 Fed., 397. Cf. 
 Crocker Co. v. Bullock, 134 Fed., 241. Even though such subpoena be 
 too broad, the witness is in contempt if he refuses to answer any 
 question or produce any papers or books. Hale v. Henkel, 201 U. S., 43. 
 
 (b) A party who resides out of the district and more than 100 miles 
 from the place of trial, may be compelled to appear and testify by 
 depositions de bene esse, which may be taken wherever he can be 
 found. Hartman v. Feenaughty, 139 Fed,, 887. Blood v. Morrin, 140 
 Fed., 918. 
 
 But this is not true of depositions taken on commission which must 
 be executed in the district where the witness resides, unless his at- 
 tendance is voluntary. Tomlinson v. Moore, 189 Fed., 845. 
 
 Rule 55. A dedimus potestatern or commission to take 
 depositions according to common usage (a), or Letters Roga- 
 tory (b) to a foreign country, may be had on motion, sup- 
 ported by affidavitj on five days' notice to the opposite party 
 or his attorney, for cause shown. Interrogatories to accom- 
 pany the same shall be filed by the moving party at least 
 fifteen days' before such commission or Letters Rogatory are 
 to issue, copies of which shall be forthwith served on the 
 opposite party or his attorney, who shall be entitled to file 
 cross interrogatories thereto within ten days thereafter, copies 
 of which shall be similarly served ; or in case of a commission, 
 the depositions may be taken orally, in the presence of the 
 parties and their counsel, upon such terms and conditions as to 
 time, place, notice, and manner of taking the same, as the 
 
R 55-n MIDDLE DISTRICT RULES. 116 
 
 court in its order may direct. Upon the return of such com- 
 mission or Letters Rogatory, notice thereof shall be forth- 
 with given to the respective parties by the clerk by mail, and 
 either party within ten days thereafter may except in writing 
 to the manner of executing the same, in default of which no 
 objections to the admissibility of the depositions will be en- 
 tertained except such as go to the materiality or competency 
 of the evidence or the right of the party to this mode of proof. 
 [East. Dist. (Pa.), Rule 8, Sects, 2 and 5, and Rule 14. 
 West. Dist., Rules 32 to 40, inclusive. Rev. Stat., Sect. 866.] 
 
 (o) Commission or Dedimus Potestatem. For order for a dedi- 
 mus potestatem, see i Loveland Fed. Forms, Nos. 187, 188 and 189. 
 As to the manner of taking depositions under a commission, see 
 Rev. Stat. Sects. 868 to 870 inclusive ; also Giles v. Paxton, 36 Fed., 
 882. Depositions taken under a dedimus potestatem are not to be 
 confused with those taken de bene esse. Sargeant v. Biddle, 4 Wheat., 
 508. The expression "according to common usage," means according 
 to the practice under the state law ; Buddicum v. Kirk, 3 Cranch, 293 ; 
 recourse to which is , directly sanctioned by Act March 9, 1892, 27 
 Stat., 7. The subject is regulated, in Pennsylvania, by Act June 25, 
 189s. P. L., 279. In equity, the equity practice is to be followed. 
 Bischoflfscheim v. Baltzer, 10 Fed., i. And such depositions may be 
 taken when necessary, even though not allowed by the state law. 
 Jones V. Oregon Central Railroad, 3 Sawy., 523. 
 
 A commission is not of course, but is granted only for cause shown. 
 United States v. Parrott, McCall's Rep., 447. Sutton v. Mandeville, 
 I Cranch., C. C, 115. Magone v. Col. Smelting Co., 13s Fed., 846. 
 Where interrogatories are filed, and the oposite party, after notice, 
 fails to file cross interrogatories, the commission may issue without 
 them. The Norway, i Ben., 493. Trevall v. Bache, S Cranch., C. C, 
 463. Where an oral examination is asked for, the practice is to pro- 
 pound particular interrogatories directed to the special matters in- 
 quired into, and to subjoin a general interrogatory as to any matter, 
 within the knowledge of the witness, that is material. Rhoads v. 
 Selin, 4 Wash., C. C, 715. For form of general interrogatory, see 
 United States Equity Rule 71, and Pennsylvania Equity Rule 57. 
 Also Smith v. Cokefair, i Pa., C. C, 48. The omission to answer' the 
 general interrogatory is fatal to the depositions. Richardson v. Gold- 
 en, 3 Wash., C. C, 109. Objections to leading or irrelevant interroga- 
 tories should be made before the commission issues, or they will be 
 regarded as waived. Hill v. Canfield, 63 Pa., tj. Crocker v. F. H. & 
 B. Co., I Story, 169. On a commission to a remote jurisdiction the 
 opposite party may reserve his examination, either oral or by cross 
 interrogatories, until the direct testimony has been returned. Mary- 
 land Trust Co. V. Kirby Lumber. Co., 149 Fed., 443. 
 
 Either party has the right, except under extraordinary circumstances, 
 to have the testimony taken orally. Bischoffscheim v. Baltzer, 10 Fed., 
 I. Edison Electric Co. v. Westinghouse, 138 Fed., 460. Encyclopaedia 
 Britannica v. Werner, Ibid, 461. Maryland Trust Co. v. Kirby Lum- 
 ber Co., 149 Fed., 443. And this applies to depositions taken abroad. 
 Cortes V. Tannhauser, 18 Fed., 667. Edison Electric Co. v. Westing- 
 house, 138 Fed., 460. Compania Azucarera Cubana v. Ingraham, 180 
 Fed., 516. The defendant may cross-examine orally even though the 
 
m MIDDLE DISTRICT RULES. R 55-n 
 
 plaintiff has filed interrogatories ; but where that is done the plaintiff 
 may withdraw his interrogatories and examine the witness orally. 
 Cortes V. Tannhauser, i8 Fed., 667. A witness will be compelled to 
 answer all questions which may possibly be material. Perry v. Rub- 
 ber Tire Co., 138 Fed., 836. It is not the duty of the judge or court 
 within whose jurisdiction depositions are being taken for use else- 
 where, when applied to to compel the production of evidence, to de- 
 termine its competency or materiality. Dowagiac Mfg. Co. v. Lochren, 
 143 Fed., 211. A person cannot be compelled to attend and have his 
 depositions taken on commission in a distript where he does not re- 
 side. Tomlinson v. Moore, 189 Fed., 845. The remedy for the refusal 
 of a witness to testify or to produce material evidence is not by a sup- 
 pression of the depositions ; the witness should be compelled by order, 
 Scherer v. Everest, 168 Fed., 822. Bills of discovery will not be sus- 
 tained where the information can be obtained by depositions, by a 
 cross-examination of plaintiffs, at or before the trial, by examination 
 of public records, or by notice to produce documents. Miller v. Moise, 
 168 Fed., 940. 
 
 A comrnission is the proper method of securing the testimony of 
 foreign witnesses which cannot be taken de bene esse on rule. Com- 
 pania Azucarera Cubana v. Ingraham, 180 Fed., 516. And a commis- 
 sion which is to be executed abroad may be executed before a secre- 
 tary of legation or consular officer. Rev. Stat., Sect. 1750. The return 
 to a commission so executed abroad should be as provided by Rev. 
 Stat, Sect. 875. Where testimony is taken on a commission in a 
 foreign country, the fees and mileage of witnesses are taxable, the 
 same as though they attended in court at the trial. Agius v. Perkins, 
 151 Fed., 958. 
 
 An attorney fee of $2.50 is taxable for each witness examined if the 
 depositions are admitted in evidence. Missouri v. Illinois, 202 U. S., 
 598. This fee is only allowed for depositions which are admitted at 
 the trial. Michigan Aluminum Foundry Co. v. Aluminum Co., 190 Fed., 
 903. When not admitted no fee is taxable. United States v. Venable 
 Construction Co., 158 Fed., 833. It only applies also to depositions 
 taken out of court. Kissinger Co. v. Bradford Co., 123 Fed., 91. It 
 has no application to an admiralty case not heard on depositions but 
 before a judge in open court. Eriksson v. Grandfield, 193 Fed., 296. 
 
 (6) Letters Rogatory. The subject of letters rogatory is cov- 
 ered by Rev. Stat., Sects. 87s, 4071-4074. For forms, see i 
 Loveland Fed. Forms, Nos. 185 and 186. Originally foreign deposi- 
 tions could only be taken on commission. Stein v. Bowman, 13 Pet., 
 219. The difference between letters rogatory and a commission is that 
 the one is to be executed according to the laws of the country to which 
 it goes, and the other according to those of the country from which 
 it comes. 6 Encycl. Plead. & Prac, 497. Kuehling v. Leberman, 9 
 Phila., 160. Letters rogatory must be resorted to where the rules of 
 the foreign country do not permit of the execution of a commission 
 there. Nelson v. United States, Pet, C. C, 235. Winthrop v. Union 
 Insurance Co., 2 Wash., C. C. 7. Anon, 59 N. Y., 313. The same 
 strictness is not required in the execution of letters rogatory as in 
 the case of a commission. Ibid. Kuehling v. Leberman, 9 Phila., 160. 
 
R 56-57-58 MIDDLE DISTRICT RULES. 118 
 
 EXECUTIONS. 
 
 Rule 56. All remedies, by execution or otherwise, given 
 by the laws of the State of Pennsylvania, to reach the prop- 
 erty of a judgment debtor in common law cases, are adopted 
 and made applicable to like cases in which a judgment is re- 
 covered in this court. 
 
 This rule is expressly authorized by Rev. Stat,, Sect. 916. As to 
 any particular form of execution the state law must be adopted as a 
 whole. McCracken v. Ha^ward, 2 How., 608. The warrant of arrest 
 given by Act (Pa.), of 1842 is such a remedy. Johnson v. Crawford, 
 154 Fed., 761. Ex parte Crawford. Ibid, 769. So are so-called gar- 
 nishee or supplementary proceedings. Canal & Claiborne Street 
 Railway v. Hart, 114 U. S., 654. Ex parte Boyd, 105 U. S., 647. Where 
 a state is divided up into districts executions run into and may be 
 executed in any part of it. Rev. Stat, Sect. 985. Act 3 March, 1911, 
 Sect 52 et seq 36 Stat., iioi. And a writ directed to the marshal 
 of one district may be executed by the marshal of another. Prevost 
 V. Gorrell, s W. N. C, 151. 
 
 By Act Aug. I, 1888, 25 Stat, p. 357, where the laws of a state re- 
 quired a judgment or decree of a State Court to be registered, re- 
 corded, docketed, or indexed, or any other thing to be done in a 
 particular manner before a Hen shall attach, this was made applicable 
 to judgments in the Federal Courts, provided the state authorized the 
 judgments and decrees of such courts to be so recorded. And this has 
 been done in Pa. by Act 24, June, 1895, P. L., 247. But the Act of Aug. 
 I, 1888, has been repealed by Act of Aug. 17, 1912. 37 Stat. — , to take 
 effect January i, 1913. The lien of such judgments will therefore 
 hereafter be genera] throughout the state. Massingill v. Downs, 
 7 How., 760. Bayard v. Lombard, 9 How., 530. Prevost v. Gorrell, 
 S W. N. C, 151. Ex parte McGill, 6 Pa., 504. 
 
 Rule 57. No execution shall be stayed without notice 
 to the plaintiff or his attorney of the time and place of applying 
 for such stay and opportunity given to be present and op- 
 pose the same. Nor shall any stay become operative until 
 after a levy has been made and the marshal has been secured 
 therein if security be required. 
 
 The lien of a ti. fa. ends with the return day unless there has been 
 a levy. Sturges' Appeal, 86 Pa., 413. But the time of the levy is not 
 affected by taking a forthcoming bond. McGinnis v. Prieson, 85 Pa., 
 III. To retain the effect of the levy a vend. exp. should be issued. An 
 alias fi. fa. works an abandonment. Missimer v. Ebersole, 87 Pa., 109. 
 
 Application for a stay, after the mandate has come down from the 
 court of appeals, to allow the party to apply for a certiorari to the 
 Supreme Court, should be made to the district court and not the court 
 of appeals. Oceanic Steam Navigation Co. v. Watkins, 188 Fed., 909. 
 And see Bost. & Maine R, R. v. Gokey, 150 Fed., 686. 
 
 Rule 58. Where the defendant in an execution claims 
 the benefit of the $300 state exemption, the marshal when 
 
119 MIDDLE DISTRICT RULES. R 59-59 a-60 
 
 practicable, shall give notice to the plaintiff or his attorney 
 of the time and place of making the appraisement and 
 afford him an opportunity to be present thereat. 
 
 The defendant is entitled to be present as a matter of right. Huddy 
 V. Sproule, 4 Phila., 353. Ruhl v. Crawford, 13 W. N. C. 13 Rosen- 
 thal V. Liberman, Ibid. sso. 
 
 Rule 59. Upon the filing of an inquisition extending or 
 condemning real estate, notice thereof shall be forthwith 
 given by the clerk by mail to the respective parties or their 
 attorneys, and exceptions if any thereto shall be filed within 
 five days thereafter, or otherwise the inquisition shall be ap- 
 proved as of course. 
 
 A vend. exp. issued without an approval of the inquisition will be 
 set aside on application of the defendant, before a sale, if no rights of 
 others have attached. Flick v. McComsey, 10 Lane. Bar, 197. But no 
 one but the defendant can take advantage of this, and he must apply 
 within a reasonable time. Crawford v. Boyer, 14 Pa., 380. Where 
 no exceptions are filed to the inquisition, the approval is a merely 
 ministerial act, of which the issuance of the vend. exp. is the equiva- 
 lent. Fuller V. Sheridan, 2 Luz. Leg. Reg., 207. 
 
 IGNORAMUS. 
 
 Rule 59 a. Every indictment returned ignoramus by the 
 Grand Jury shall be entered by the clerk in the criminal docket 
 as a separate case, the same as if it had been returned a true 
 bill. 
 
 JUDGMENTS. 
 
 Rule 60. Judgments by default, in accordance with the 
 rules (a), may be entered by the clerk (b), and the amount, 
 to which the plaintiff is entitled, be assessed by him where it 
 is set forth with certainty in the declaration or statement, or 
 may be rendered so by calculation (c). 
 
 [West. Dist. (Pa.), Rule 17, Sect. 2.] 
 
 (o) For judgment by default for want of an appearance, see Rules 
 20 and 26, supra; and for want of an affidavit of defence, see Rules 10 
 to 13 inclusive, supra. 
 
 (b) Authority for this rule is to be found in Act (Pa.), April 22, 
 1889, P. L., 41. Lumber Co. v. Home Ins. Co., 167 Pa., 231. Johnson 
 V. Royal Ins. Co., 218 Pa., 423. But in ejectment the Court must be 
 moved for judgment for want of an appearance. Thompson v. Owen, 
 8 Kulp, 36. 
 
 (c) Where the damages are uiTliquidated, a writ of inquiry may 
 "be issued, directed to the marshal. Kohler v. Luckenbaugh, 84 Pa., 
 258; or they may be assessed by order of Court, in the nature of such 
 
R 60 a-6i MIDDLE DISTRICT RULES. 120 
 
 a writ, by a jury in attendance thereon. Act (Pa.), May 22, 1722. 
 Sect. 27. I Sm. Laws, 144. 
 
 For form of such order, see Wright v. Crane, 13 S. & R., 446. In a 
 proper case such an inquest is a matter of right. Bell v. Bell, 9 Watts, 
 47- 
 
 The assessment of damages, by inquest at bar, must be made as to 
 all the defendants, if made as to any. Cridland v. Floyd, 6 S. & R., 
 411. Rennet v. Reed, 10 Watts., 396. Ridgely v. Dobson, 3 W. & S., 
 118. Day V. Brawley, i Pa., 429. Where judgment by default has 
 been entered for a specified amount, when it should have been assessed 
 as provided by the statute, it will be stricken off on motion. Mc- 
 Micken v. Commonweahh, 58 Pa., 213. Bank v. Messinger, 6 Pa. Co. 
 Ct, 609. 
 
 The defendant after the entry of an interlocutory judgment has not 
 the right to demand that damages shall be assessed by a jury attend- 
 ing the next Court instead of by a writ of inquiry to the sheriff. 
 American Soda Water Company v. Taggart, 46 Pa. Super. Ct., 123. " 
 
 As to lien of judgments being co-extensive with the state, see note 
 to Rule 56, supra. 
 
 Rule 60 a. Judgment may be entered, debittim sine breve, 
 on written confession or warrant. of attorney in conformity 
 with the state practice, where the court by proper averments 
 in the praecipe for judgment is shown to have jurisdiction, 
 by reason of the amount involved and the residence and di- 
 verse citizenship of the parties. 
 
 But no such judgment shall be entered where the confession 
 or warrant of attorney is over ten years old^ without leave 
 of Court, being first obtained on affidavit of due execution 
 thereof, and that the money is unpaid, and the parties living; 
 nor where the confession or warrant is over twenty years 
 old, without a rule to show cause similarly obtained and 
 served upon the defendant. 
 
 Judgment by confession or on warrant of attorney is authorizJed in 
 the Federal Courts on the principle that there is a dispute or con- 
 troversy sufficient to give jurisdiction, where there is a demand by 
 the plaintiff against the defendant, which has not been satisfied. 
 Metropolitan Receivership, 208 U. S., 90. 
 
 MARSHAL'S SALES. 
 
 Rule 61. Whenever any real estate, sold by the marshal 
 on execution, is bought by a lien creditor, who appears from 
 the proper records to be entitled as such to receive the whole 
 or any portion of the proceeds, it shall be the duty of the 
 marshal to accept, in satisfaction of his bid, the receipt of 
 such purchaser for the amount' that he appears to be entitled 
 to, as shown by a certificate from the records, a special re- 
 
121 MIDDLE DISTRICT RULES. R 62-63-63 a 
 
 turn of which shall be made with such certificate attached. 
 And, if upon exceptions filed, it is found by the court that he 
 is so entitled, the sale shall be approved ; or otherwise it shall 
 be set aside, and a resale directed, unless the purchaser 
 within ten days shall pay to the marshal the amount of his 
 bid, or the amount thereof to which he is found not to be 
 entitled. 
 
 [East. Dist. (Pa.), Rule 15, Sects. 2 to g, inclusive. West. 
 Dist., Rule 20.] 
 
 This subject is regulated in Pennsylvania by Kci April 20, 1846. 
 P. L., 411. Tlie right to an issue on disputed facts is there provided 
 for, but is omitted from the above rule, as not being consistent with 
 the federal practice. 
 
 Rule 62. Marshal's deeds, for real estate sold on execu- 
 tion, shall be acknowledged in open court on the first Wed- 
 nesday of each term, at ten o'clock in the forenoon; but be- 
 fore the acknowledgment of any deed is taken the process 
 upon which the sale was made shall be duly returned and 
 filed. Exceptions to any sale, or to the right of the purchaser, 
 as a Hen creditor, to apply his lien in satisfaction of his bid, 
 shall be filed before the acknowledgment is taken ; upon which 
 such proceedings shall.be had as may be called for thereby. 
 
 [East. Dist. (Pa.), Rule 15, Sects, i to 9, inclusive. West. 
 Dist, Rule 20.] 
 
 See also Rules 36-38, supra, with regard to auditors. 
 
 NATURALIZATION. 
 
 Rule 63. Petitions for naturalization of aliens (a), and 
 for the cancellation of naturalization certificates^ shall be heard 
 at Scranton on the last Thursday and Friday of each month, 
 except October; and at Harrisburg and Williamsport at the 
 regular terms of court at each of said places. 
 
 (o) By Act of Congress of June 29, igo6. Sect. 6, 34 Stat, p. 
 598, petitions for naturalization are to be heard at stated times fixed 
 by rule of court not less than ninety days after filing the same, and 
 notice posted; and no person shall be naturalized, nor any certificate 
 of naturalization issued, within thirty days of any general election. 
 
 Rule 63 a. In every petition for naturalization, on which 
 no final order has been made within one year after the date 
 of the filing thereof, the clerk of the court shall cause a 
 notice to be mailed to the last known address of the peti- 
 tioner, tO' the effect, that the said petition will be dismissed. 
 
R 63 b MIDDLE DISTRICT RULES. 122 
 
 unless such petitioner shall appear in Court with his witnesses 
 for the final hearing of his petition on one of the regular 
 days set for the hearing of naturalization matters within 
 thirty days after the date of such notice, or shall within such 
 time show cause to the Court for his failure to so appear ; and 
 in all cases in which such notices are sent, and the peti- 
 tioner neglects or fails to appear or show cause, on due proof 
 thereof the petition shall thereupon be dismissed. 
 
 Rule 63 b. It_ appearing to the Court, upon the representa- 
 tion of the Department of Commerce and Labor, 
 
 That in accordance with rule six of the regulations made pursuant to 
 the twenty-eighth section of the Act of Congress approved June 29, 
 1906, relating to naturalization, for carrying into execution the pro- 
 visions thereof, duplicates of all declarations of intention to become a 
 citizen of the United States made as provided in the fourth section of 
 said act are forwarded by the several clerks of court before whom 
 made to the Bureau of Immigration and Naturalization, Division of 
 Naturalization, of the Department of Commerce and Labor; that 
 petitions for naturalization are also forwarded to the said Division of 
 Naturalization in accordance with the twelfth section of said Act and 
 rule seven of the regulations ; 
 
 That upon examination of the said Division it is frequently found 
 that such declarations and petitions are defective in that they con- 
 tain errors or omissions, or otherwise apparently fail to conform to 
 the requirements of said Act ; 
 
 That in ordinary course such defects would not be disclosed in 
 declarations until at least two years thereafter, when a petition for 
 naturalization may be filed and heard, and when, if such defects are 
 material, the declaration may be held insufficient to support a final order 
 of naturalization and the declarant may be required to file a new decla- 
 ration and wait two years longer before filing a petition for naturali- 
 zation ; 
 
 That such defects, wlien the facts allow, and especially where due 
 to mistake, oversight or misunderstanding, may often readily be cured, 
 if specifially pointed out ; and 
 
 That the adoption of a simple procedure for the amendment of such 
 declaration of intention or petition for naturalization so found to be 
 defective is desirable, with a view to relieving the declarant or peti- 
 tioner of a possible hardship, to conserving the time of the court, 
 and to promoting uniformity and efficiency in the administration of 
 the Act ; 
 
 It is ordered. That whenever such a duplicate declaration of inten- 
 tion or petition for naturalization as aforesaid is returned to the clerk 
 of this court by the said Bureau of Immigration and Naturalization, 
 Division of Naturalization, and attention is called to errors, omissions 
 or other defects therein, the alien declarant or petitioner concerned, 
 on appearing in person before the said clerk, with his witnesses if 
 necessary, and with the copy of the declaration previously given to 
 him, shall have leave, if the facts allow, to amend the said declara- 
 tion or petition by making the same conform to the requirements of 
 the statute in that behalf enacted ; and it shall be the duty of the said 
 
123 MIDDLE DISTRICT RULES. R 64 
 
 clerk to note upon the several copies of the declaration or petition 
 originally filed, in such manner as to disclose the nature thereof, the 
 particular amendments made, and the date of making the same, and 
 to file as part of the record of the proceeding the letter of the said 
 Division of Naturalization returning the said declaration or petition 
 for correction; and when such declaration of intention or petition for 
 naturalization shall have been amended as aforesaid the same shall 
 be deemed effective as of the date when it was originally made or 
 filed : Provided, however. That all questions, concerning the suffi- 
 ciency of such declarations or petitions, before or after amendment, 
 as to whether the same could be cured by amendment, and respecting 
 the propriety and sufficiency of the amendments made, shall be re- 
 served for the determination of the court at such time as they may 
 properly come before it for decision ; 
 
 And it is further ordered. That no fees in addition to or other 
 than those prescribed by law and originally charged on account of such 
 declarations or petitions shall be collected by the said clerk from any 
 alien amending his declaration of intention or petition for naturaliza- 
 tion as aforesaid. 
 
 NEW TRIALS. 
 
 Rule 64. A motion for a new trial (a), for judgment on 
 points reserved (b), to take off a compulsory nonsuit, or in 
 arrest of judgment, must be made and the reasons therefor 
 filed within four days after verdict (c). 
 
 [East. Dist. (Pa.), Rule 17, Sect, i.] 
 
 (o) A mere motion for a new trial is not enough; it must receive 
 recognition by the Court in order to permit of consideration at a sub- 
 sequent term. Klein v. Southern Pacific Co., 140 Fed., 213. As a 
 condition to refusing a new trial the court may require the plaintiff 
 to submit to a reduction of the damages. Scheu v. Penna. R. R., 141 
 Fed., 495. When the trial judge dies pending a rule for a new trial, 
 his successor may pass on the question, if he is fairly satisfied 
 that he can do so intelligently. United States v. Meldrum, 146 Fed., 
 390. Where a verdict is inconsistent on its face, and shows an abuse 
 of power, as where the jury gave nominal damages only, when the 
 plaintiff was entitled to substantial damages if entitled to recover at 
 all, the obligation to grant a new trial is positive, and a refusal may 
 be reversed on error. Pugh v. Bluff City Excursion Co., 177 Fed., 399. 
 The refusal of the court to consider a motion for a new trial made in 
 time and sustained by affidavits showing proper grounds is the denial 
 of a right which calls for a reversal. Mattox v. United States, 146 
 U. S., 140; Felton v. Spiro, 78 Fed., 576; Ogden v. United States, 112 
 Fed., 523. So also is the granting of a new trial for unjustifiable rea- 
 sons. James v. Evans, 149 Fed., 136; or the refusal of the trial court 
 to exercise the discretion which it has to award a new trial, on a 
 misconception of its powers. Dwyer v. United States, 170 Fed., 160. 
 But to make the refusal error the application must involve something 
 new and not passed upon at the trial. Gourdain v. United States, 154 
 Fed., 453. A motion for a new trial is not essential to the prosecution 
 of a writ of error, even though required by the state practice. Aaron 
 V. United States, 155 Fed., 833. Boatmen's Bank v. Trower, 181 Fed., 
 804. 
 
R 65-66 MIDDLE DISTRICT RULES. 124 
 
 (b) The Federal Courts will follow the State Law with regard to 
 entering judgment non obstante veredicto. Fries-Breslin Co. v. Ber- 
 gen, 176 Fed., 76. Troxell v. D. L. & W. R. R., 180 Fed., 871. Smith 
 V. Jones, 181 Fed., 819. Western Bank Note Co. v. Slentz, 188 Fed., 
 57. The defendant must ask for a directed verdict to make the re- 
 fusal of judgment non obstante veredicto to be error. Missouri K. 
 & T. Co. V. Collier, 157 Fed., 347. An exception must be taken to the 
 refusal of such judgment if a writ of error is to be prosecuted. 
 Philadelphia v. Bilyeu, 36 Pa. Sup. Ct., 562. International Savings & 
 Trust Co. V. Printz, 37 Pa. Sup. Ct, .134. Hatcher v. North West. 
 Insurance Co., 184 Fed., 23. An exception by the plaintiff to the al- 
 lowance of such judgment in favor of the defendant is too late after 
 the next term has begun. McCord v. Baltimore & Ohio R. R., 187 
 Fed., 743. There can be no motion for judgment non obstante vere- 
 dicto where the jury disagree. McKinnon v. Rynkievicz, 14s Fed., 863. 
 
 (c) In Pennsylvania a new trial may be granted after the term 
 and after judgment rendered, under the equitable powers of the Court, 
 for fraud in obtaining the verdict. Fisher v. Ry. Co., 185 Pa., 602. 
 But the remedy in the Federal Courts in such case would seem to be 
 by bill. O'Connor v. O'Connor, 142 Fed., 449. 
 
 Rule 65. No motion for a new trial shall be made after 
 a motion in arrest of judgment or for judgment on a reserved 
 point, but such motions may be made together. 
 
 A motion by plaintiff for a new trial conditioned on the Court's de- 
 ciding in favor of the defendant on a rule for judgment non obstante 
 veredicto, is not objectionable. Usher v. Scranton Railway Co., 132 
 Fed., 405. 
 
 The state practice with regard to entering judgment non obstante 
 veredicto is applicable to actions at law in the federal courts. Fries- 
 Breslin Co. v. Bergen, 176 Fed., 76. Troxell v. D., L. & W. R. R., 180 
 Fed., 871. 
 
 Where a judgment non obstante is reversed, a new trial, instead of 
 the entry of a final judgment, may be granted. Hughes v. Miller, 192 
 Pa., 368. Western Bank Note Co. v. Slentz, 188 Fed., 57. 
 
 A rule for a new trial must be disposed of before judgment for the 
 defendant non obstante veredicto is entered. Walters v. American 
 Bridge Co., 234 Pa., 7. 
 
 Rule 66. A motion for a new trial on the ground of after 
 discovered evidence, in addition to the other requirements, 
 must be accompanied by the affidavits of the witnesses relied 
 upon, giving the substance of their testimony and stating why 
 it could not have been procured before. 
 
 This is a reasonable rule. Dietrick v. Lancaster, 212 Pa., 566; and 
 is of general prevalence, 29 Cyc, 998. But when it is impossible or 
 impracticable to obtain such affidavits it will be excused ; as for in- 
 stance where the witnesses are out of the state; Brown v. Speyers, 20 
 Graft. (Va.), 296; Smith v. Cushing, 18 Wis., 29s ; or in the employ 
 of the opposite party. Payan v. United States, 15 Ct. Claims, 56. 
 
125 MIDDLE DISTRICT RULES. R 67 
 
 NOTICES. 
 
 Rule 67. All notices, when not otherwise expressly pro- 
 vided, shall be in writing, and when given in pursuance of 
 these rules may be served on the opposite party or his attor- 
 ney, in the manner prescribed for the service of a summons. 
 If the notice be in pursuance of a rule granted by the court, 
 a copy of the rule shall be prefixed to the notice. 
 
 [East. Dist. (Pa.), Rule 19. West. Dist, Rule 21.] 
 The following notices are provided for in these rules: 
 
 Rule 
 Audit to distribute proceeds of judicial sale ; 3 weeks advertise- 
 ment and 10 days posting in clerk's office 36 
 
 Auditor's report, intention to file ; 10 days 38 
 
 Bail, justifying of ; 10 days 42 
 
 Bail, taking of new ; 5 days 42 
 
 Commission to take testimony, application for; 5 days 55 
 
 Costs, retaxation of ; 5 days 48 
 
 Declaration or statement, filing of; 15 days before return day.. 10 
 Depositions, execution of rule to take ; 5 days if within the 
 
 circuit ; 10 days if outside the circuit 53 
 
 Document, execution of, rule to admit ; 15 days 8 
 
 Ejectment, rule on defendant to appear and plead; 15 days, not 
 
 sooner than second term 71 
 
 Ejectment, rule on defendant to file answer and abstract; 15 
 
 days after appearance 71 
 
 Execution of document, rule to admit ; 15 days 8 
 
 Exhibit, referred to in depositions, to produce at argument or 
 
 trial ; 10 days 7 
 
 Inquisition on real estate ; Forthwith 59 
 
 Inquisition, exceptions to ; s days thereafter 59 
 
 Interrogatories, rule on garnishee to answer; 15 days. ., 27 
 
 Letters rogatory, application f or ; s days 55 
 
 Naturalization, dismissal of petition; 30 days 63a. 
 
 Rule to admit or deny petition for rule to show cause; 15 days. . 9 
 
 Rule on plaintifl to declare ; 15 days 70 
 
 Rule on defendant in ejectment to appear and plead; 15 days, 
 
 not sooner than second term 71 
 
 Rule on defendant in ejectmient to file answer and abstract; 15 
 
 days after appearance 71 
 
 Rule on defendant in other actions to plead; 15 days after service 
 
 of declaration ^2 
 
 Statement or declaration, filing of plaintiff's; 15 days before 
 
 return day 10 
 
 Setoff, for specification of ; 15 days 76 
 
 Viewers, application for appointment of ; 10 days 47 
 
R 68 MIDDLE DISTRICT RULES. 126 
 
 PLEADINGS (ft). 
 
 Rule 68. The pleadings in all actions (&) shall be the 
 same as may from time to time be prescribed by the state 
 law (c). 
 
 (a) It is only in the absence of remedies by regular pleadings that 
 motions can be made available to settle important questions of law. 
 Illinois Central R. R. v. Adams, i8o U. S., 28, 38. Scully v. Bird, 209 
 'U. S., 481, 486. 
 
 (&) Assumpsit and Trespass. By Act (Pa.), May 25, 1887, 
 P. L., 271, the plaintiff's declaration in assumpsit and in trespass 
 shall consist of a concise statement of his demand, which, in assumpsit, 
 shall be accompanied by copies of all notes, contracts, book entries, 
 or a particular reference to the records of any Court within the coun- 
 ty, upon which the case is founded; and a reference to such record, or 
 the record of any deed, mortgage or other instrument of writing re- 
 corded in the county, shall be sufficient in lieu of a copy thereof. The 
 statement shall be signed by the plaintiff or his attorney, and in the 
 action of assumpsit shall be replied to by affidavit. 
 
 It may be provided by rule of court under this statute that the state- 
 ment in both assumpsit and trespass shall be sworn to. Edison Gen'l 
 Electric Co. v. Thackara Mfg. Co., 167 Pa., 530. KauskoflE v. Stern, ig 
 Phila., 328. 
 
 The plaintiff's statement must be self sustaining. Rosenblatt v. 
 Weinman, 230 Pa., 536. It must set forth the plaintiff's claim with 
 sufficient particularity to enable the defendant to plead understandingly 
 with full knowledge of every claim that can be made or question that 
 can be raised under it at the trial. Park v. Standard Spinning Co., 13s 
 Fed., 860. But it is too late to demur to it after filing an affidavit of 
 defence. Heller v. Royal Ins. Co., 151 Pa., loi. The amount claimed 
 in it must exceed the jurisdictional limit required in the Federal Courts, 
 whether such jurisdiction is based on diverse citizenship or because 
 the case is one arising under the Federal constitution and laws. Turner ■ 
 V. Jackson Lumber Co., 159 Fed., 923. The amount demanded, how- 
 ever, and not the amount recovered is the test of jurisdiction, unless it 
 appears to a legal certainty that the sum demanded is not the amount 
 in dispute, or is fictitious or colorable. Hampton Stave Co. v. Gardnert 
 IS4 Fed., 80s. 
 
 It is not necessary in a scire facias on a mortgage any more than 
 in assumpsit to file a copy of the mortgage, provided the date and 
 place of recording are stated. Act (Pa.), March 12, 1842, Sect. 3. P. 
 L., 66. 
 
 Replevin. The plaintiff's declaration in replevin must be verified 
 by oath and set forth the facts upon which his title to the goods and 
 chattels is based; and the defendant or party intervening must file an 
 affidavit of defence within fifteen days, denying the plaintiff's title, and 
 showing his own. Act (Pa.), April 19, 1901, Sects. 4 and 5. P. L., 
 8g. As to what is a sufficient statement in replevin, see Heisley v. 
 Economy Co., 33 Pa. Sup. Ct, 218. 
 
 Ejectment. The plaintiff in ejectment shall file a declaration 
 consisting of a concise statement of his cause of action with an ab- 
 stract of the title under which he claims the land in dispute ; to which 
 the defendant, in addition to the plea of "not guilty," shall file an 
 answer in the nature of a special plea, setting forth the grounds of 
 
127 MIDDLE DISTRICT RULES. R 68-n 
 
 his defence, with an abstract of the title by which he claims ; and no 
 action of ejectment shall be considered at issue until the plaintiff's state- 
 ment and the defendant's plea and answer shall be filed; nor shall any 
 evidence he received on the trial of the action of any matter not ap- 
 pearing in the pleadings; subject, however, to the power of amendment. 
 Act (Pa.), May 8, 1901, Sect. 2. P. L.. 143. 
 
 A description of the land, with the number of acres which the plain- 
 tiff claims, to be filed on or before the first day of the term to which 
 the process is returnable, would also seem to be required. Act March 
 21, 1806, Sect. 12. 4 Smith's Laws, 332. 
 
 Pleas. Non-assumpsit is the general issue in assumpsit; in addi- 
 tion to which, payment, set-off, and the statute of limitations may be 
 pleaded ; but no other plea. And the only plea in trespass is "not 
 guilty." Act (Pa.), 25 May, 1887, Sect. 7. P. L., 272; as it is in eject- 
 ment. Act April 13, 1807, Sect. 4. 4 Smith's Laws, 479; except that a 
 special plea, giving an abstract of the defendant's title is required in 
 ejectment, by Act of May 8, 1901. Sect. 2, P. L. 143. 
 
 All pleadings are also made subject to the rules which may be pre- 
 scribed with regard to the notice of special matter. Act (Pa.), May 
 25, 1887, Sect. 7, P. L., 272. See such rule infra. Rule 76. 
 
 Notwithstanding these statutory restrictions, a plea in abatement is 
 still admissible. Campbell v. Galbreath, i Watts, 70. S. C. 5 Watts, 423. 
 Zeigler v. Fisher, 3 Pa., 365. Becker v. Lebanon St. Railway, 25 Pa. 
 Sup. Ct., 367. So is a plea of the statute of limitations in an action 
 of trespass. Kulp v. Snyder, 94 Fed., 613. Dickerson v. Central Rail- 
 road, 7 Dist. (Pa.), 104. Or a special plea of res judicata, Troxell v. D. 
 L. & W. R. R., 18s Fed., 540. The defendant is also entitled to plead 
 specially that he acted as judge with regard to the matters complained 
 of. English v. Ralston, 112 Fed., 272. 
 
 Under a plea of the general issue in trespass any evidence may be 
 offered which would have been admissible 'under a special plea. Fisher 
 v. Paff, II Pa. Sup. Ct., 401. Such for instance as a release of dam- 
 ages. Johnson v. Philadelphia & Reading Railroad, 163 Pa., 127. Or 
 evidence of title in trespass to real estate. Edwards v. Woodruff, 25 
 Pa. Sup. Ct., 575. And the plaintiff may reply by any competent and 
 relevant evidence. Fisher v. Paff, 11 Pa. Sup. Ct, 401. 
 
 (c) By Rev. Stat, Sect 436; "The practice, pleading and forms 
 and mode of proceeding in civil causes, other than equity and 
 admiralty causes, in the Circuit and District Courts shall conform as 
 near as may be to the practice, pleadings and forms and modes of 
 proceeding existing at the time in like causes in the Courts of record 
 of the state within which such Circuit and District Courts are held; 
 any rule of Court to the contrary notwithstanding." 
 
 But absolute conformity with state practice is not required. English 
 V. Ralston, 112 Fed., 272. Swift v. Jones, 145 Fed., 489. Hein v. West- 
 inghouse Air Brake Co., 164 Fed., 79. St. Charles v. Stookey, 154 Fed., 
 772. Nor is a Federal Court bound to change its rules to conform to 
 changes in the state practice. Shepard v. Adams, 168 U. S., 618. Bost. 
 & Maine R. R. v. Gokey, 210 U. S., 155. The state practice may be 
 changed and adapted so as to accomplish the relief intended to be given 
 by the Federal law. Hills v. Hoover, 220 U. S., 329. Richardson v. 
 Bosselman, 164 Fed., 781. Debt is the appropriate action to recover on 
 a judgment, and although under the state law, it is denominated as- 
 sumpsit, the applicable principles are those of debt at common law. 
 Du Bois V. Seymour, 152 Fed., 600. 
 
R 69-70-71 MIDDLE DISTRICT RULES. 128 
 
 Rule 6g. If no declaration or statement be filed by the 
 plaintiff within a year after action brought (a), a non pros, 
 shall be entered on praecipe to the clerk, as of course (b). 
 
 [East. Dist. (Pa.), Rule 18. West. Dist, Rule 24, Sect. 2.] 
 
 (a) The year is to be counted from the return day of the writ 
 (original or alias) by which the defendant is brought in. Everett v. 
 Niagara Ins. Co., 142 Pa., 322. Even after a statement has been 
 filed there may be a non pros, if there has been unreasonable delay 
 in proceeding with the action. Waring Bros. v. Pennsylvania R. R., 
 176 Pa., 172. But not in an action involving the title to land short 
 of the time giving title by adverse possession. Hillside Coal & Iron 
 Co. v. Heermans, igi Pa., 116. A non pros, for want of a declara- 
 tion will be taken off for cause shown. Wood v. Harrison, 14 Dist. 
 (Pa.), 822. If a declaration is filed before a non pros, is entered, even 
 though after the year, it will be in time. Ellis v. Donaghy, 6 W. 
 N. C, 541. 
 
 (fe) This does not apply to replevin, which, under Act (Pa.), 
 April 19, 1901, P. L. 88, has a complete code of its own. Ott v. 
 Miller, i6 Dist. (Pa.), 140. 
 
 Rule 70. In every case where the defendant's appear- 
 ance is entered, a rule on the plaintiff to declare is of course, 
 and may be entered at any time after the return day; on fif- 
 teen days' notice of which, if the plaintiff's declaration or 
 statement be not filed, the defendant shall be entitled to a 
 judgment of non pros. 
 
 [East. Dist. (Pa.), Rule 20, Sect. i. West. Dist., Rule 24, 
 Sect. I.] 
 
 This is the rule by statute in replevin. Act (Pa.) April 19, 1901. 
 Sect. 4, P. L., 89. 
 
 The clerk may enter the judgment sec. reg. Act (Pa.) April 22, 
 1889. P. L., 41. Rule 60, supra. 
 
 A non pros, for want of a declaration does not prevent a new suit, 
 if not otherwise barred. Derrickson v. Colonial Trust Co., 17 Dist. 
 (Pa.), 80. 
 
 Rule 71. In the action of ejectment, if the plaintiff's 
 declaration and abstract (a) have been filed on or before the 
 return day of the writ (b), the defendant shall appear and 
 plead on or before the first day of the second term (c) ; 
 and within fifteen days thereafter shall file his answers and 
 abstract (d). If the plaintiff's declaration and abstract have 
 not been so filed, they may be filed at any time thereafter, and 
 upon service of a copy thereof on the defendant he shall 
 be required to appear and plead within fifteen days, not 
 sooner however than the first day of the second term; and 
 within fifteen days more he shall file his answer and abstract. 
 
 [West. (Pa.), Dist., Rule 13, Sects, i and 3.] 
 
129 MIDDLE DISTRICT RULES. R 72-73 
 
 (o) The purpose of an abstract is to narrow the issues and' to 
 hmit the proofs. Davis v. Brothers, 152 Fed., 696. All that needs 
 to be_ shown by the plaintiff's abstract is his claim of title. A de- 
 scription of the land is to be given by the declaration. Reading v. 
 beip, I Lehigh Val., 15. The plaintiff is not entitled to a judgment 
 by default unless his abstract shows a prima facie case. Wirt v. 
 Bertles, 12 Luz. Leg. Reg,, 45. Where the plaintiff's abstract and 
 declaration fail to show title, a non pros, may be entered. Hun- 
 ter V. Bonbright, ly Dist. (Pa.) 188. But see Davis v. Brothers, 152 
 Fed., 696. If he goes to trial on an insufficient declaration and ab- 
 stract, he does so at his peril, as no evidence can be received out- 
 side of it. Fuller v. Railroad, 12 Luz. Leg. Reg., 175. Wescott 
 v. Crawford, 210 Pa., 256. 
 
 (6) The plaintiff's declaration must be filed before the return 
 day of the writ in order to justify a judgment by default for want 
 of an appearance. Lorenz v. Berry, 207 Pa., 296. 
 
 (c) The defendant in ejectment is not bound to appear or do 
 anything until the second teriji. Act March 21, 1806, Sect. 12. 4 
 Smith's Laws, 332. Vanderslice v. Garven, 14 Serg. & Rawle, 272. 
 Young V. Cooper, 12 Phila., 331. This is not changed by the act of 
 1836. Ellison V. Hammen, 2 T. & H. Prac, Sect. 1850. Nor by the 
 act of 1901. Lorenz v. Berry, 207 Pa., 296. 
 
 {i) The Courts may fix by rule the time within which the de- 
 fendant's answer and abstract shall be filed. Act May 8, 1901, Sect. 
 2. P. L., 142. A defendant who makes no claim of title must enter 
 a disclaimer if he wishes to avoid costs. Steinmets v. Logan, 3 
 Watts, 160. McCanna v. Johnston, 19 Pa., 434. Kirkland v. Thomp- 
 son, SI Pa., 216. Lehigh Val. Coal Co. v. Beaver Lumber Co., 203 
 Pa., , 544. A disclaimer is not properly a plea. Kirkland v. Thomp- 
 son, 51 Pa., 216. It merely operates as an estoppel of record, as to 
 the land disclaimed. Greeley v. Thomas, 56 Pa., 35. A judgment 
 for want of a specific answer is not justified. McCloskey v. O'Han- 
 lan, 35 Pa., Sup. Ct, 95. 
 
 Rule 72. In all other actions, the defendant shall file 
 a plea within fifteen days after the return day of the writ, 
 provided the plaintiff's declaration or statement has been filed 
 on or before the return day and notice thereof given. If not 
 so filed, it may be filed at any time thereafter, and the defend- 
 ant shall enter a plea within fifteen days after the service of a 
 copy upon him. 
 
 This rule and the one following are based on the Act of May 25, 
 1887, Sect. 7, P. L., 272, which superseded the previous practice. 
 Howen v. Bennett, 4 Dist. (Pa.), ig6. While a rule on the plaintiff to 
 give security for costs suspends a rule on the defendant to plead, when 
 security has been entered the defendant is in default without fur- 
 ther notice, if he fails to plead within the residue of time stipulated 
 in the rule. American Mfg. Co. v. Morgan Smith Co., 25 Pa., Sup. 
 Ct., 176. But the plaintiff need not plead to a defective statement. 
 Bill Posting Sign Co. v. Jermon, 27 Pa. Sup. Ct., 171. 
 
 Rule 73. Should the defendant fail to plead in any case 
 at the time required by the rules, the clerk on praecipe of the 
 plaintiff shall enter a plea of the general issue. 
 
R 74-75-76 :middle district rules. 130 
 
 A plea entered for the defendant by the clerk, by default, is as 
 binding as if entered by the defendant himself. Connell v. Nicol, 
 2 Lack. Leg. News, 177. 
 
 By a plea of the general issue is meant a plea that will put at issue the 
 general questions involved in the action. It may not always be easy to 
 say just what this is, and where there is any doubt, counsel should 
 indicate to the clerk, what they consider the appropriate plea. Scranton 
 City V. Hull, 3 Lack. Leg. News, g8. In scire facias sur municipal lien, 
 nil debet; payment, and payment with leave may be so regarded. Ibid. 
 
 Judgment by default for want of a plea may be authorized by 
 rule, the same as for want of an appearance or affidavit of defence. 
 Act. (Pa.) April 22, 1889, P. L., 41, Johnson v. Royal Ins. Co., 218 
 Pa., 423. 
 
 Rule 74. No dilatory plea shall be received unless veri- 
 fied by affidavit that the facts set forth therein are true, or 
 probable cause be shown to the court conducing to the belief 
 that they are true. 
 
 [East. (Pa.), Dist, Rule 20, Sect. 2.] 
 
 Taking any step looking to a trial on the merits is a waiver of a 
 dilatory plea. Daley v. Iselin, 212 Pa., 279. 
 
 Where there is no formal plea to the jurisdiction, the plaintiff is 
 not compelled to prove the jurisdictional facts averred in the decla- 
 ration. Bitterman v. Louis. & Nash. R. R., 207, U. S., 205, 224. But 
 see. Cole v. Carson, 153 Fed., 278. Lindsey Live Stock Co. v. justice,. 
 191 Fed., 163. 
 
 On a plea in abatement which is sustained, the only judgment is 
 that the writ be quashed. Warner v. Lehigh Valley R. R., 16 Dist. 
 (Pa.), 20. 
 
 Rule 75. Every demurrer, whether in its nature general 
 or special, shall specify the particular grounds upon which it 
 is based. 
 
 [East. Dist. (Pa.), Rule 20, Sect. 3.] 
 
 But a demurrer must not set up facts outside of the record, or it 
 becomes bad as a speaking demurrer. Wrigjit v. Weber, 17 Pa. Sup. 
 Ct., 451. Pew V. Minor, 216 Pa., 343. 
 
 It is too late to demur to the plaintiff's statement after filing an 
 affidavit of defence. Heller v. Royal Ins. Co., 151 Pa., loi. 
 
 A demurrer which challenges the jurisdiction of the court over 
 the person of the defendant but also asks judgment on the merits 
 amounts to a general appearance, and on being overruled the defend- 
 ant is in court for all purposes. St. Louis & San Francisco R, R. v. 
 McBride, 141 U. S., 127. Nelson v. Husted, 182 Fed., 921. 
 
 Rule 76. Where the defendant pleads set off ; or a 
 general plea is entered with leave to give special matter (a) 
 in evidence, or to justify; upon notice by the plaintiff, a specifi- 
 cation of the same shall be filed by the defendant in writing 
 within fifteen days thereafter ; in default of which no evidence 
 
131 MIDDLE DISTRICT RULES. R 77-78-79 
 
 of such set ofif, special matter, or justification, shall be re- 
 ceived (b). 
 
 [East. Dist. (Pa.), Rule 20, Sects. 4 and 5.] 
 
 (o) _ It is not enough that such special matter is set out in the 
 affidavit of defence. Simons v. West, 2 M., 196. Sullivan v. Johns, 
 S Whart, 366. Mershon v. Anderson, 40 W. N. C, 192. Nor is a 
 reference over to the affidavit sufficient. Erwin v. Leibert, s W. & 
 S., 103. But see Arnold v. Blabon, 147 Pa., 372. 
 
 The rule does not apply to anything admissible under the general 
 issue. Walls v. Walls, 170 Pa., 48; such as a release of damages for 
 personal injuries. Johnson v. Railroad, 163 Pa., 127; or the title to 
 land in trespass. Edwards v. Woodruff, 25 Pa. Sup. Ct, 575. Tay- 
 lor V. Lyon Lumber Co., 13 Pa. Co. Ct., 235. On a plea of payment, 
 however, an equitable defence cannot come in, without notice of the 
 special matter relied on. Lovegrove v. Christman, 164 Pa., 390. Nor 
 in a Federal Court is an equitable defence available in an action at 
 law. Brodliead v. Quarryville Nat'l Bank, 151 Fed., 713. And a 
 counter claim must state facts which show a good cause of action 
 against the plaintiff. Groton Bridge Mfg. Co. v. American Bridge 
 Co., 151 Fed., 871. 
 
 (6) Rose V. Columbian Reinforced Concrete Co., 193 Fed., 403. 
 
 Rule 77. All pleadings and papers shall be accompanied 
 by a copy to be left with the clerk, for the benefit of the 
 opposite party; and all bills of exceptions, containing the 
 evidence taken at the trial, shall be filed in duplicate for the 
 convenience of the clerk in making up and certifying the 
 record. 
 
 [See Rule 78, infra, as to records and papers not being removed from 
 the clerk's office, the excuse for which is disposed of by the present 
 rule.] 
 
 RECORDS. 
 
 Rule 78. No records or papers shall be allowed to be 
 taken from his office, by the clerk ; nor shall they be so taken 
 by him, upon a subpoena duces tecum, or otherwise, except by 
 leave of court. 
 
 [East. Dist. (Pa.), Rule 22, Sect. 2. West. Dist., Rule 27.] 
 
 For the English rule, see Taylor on Evidence, Sect. 1532. 
 
 A record may be proved by a compared or an officially certified 
 copy. 14 Amer. & Eng. Encycl. Law, 2 Ed., 198. The original is 
 always admissible. Williams v. Conger, 125 U. S., 397. Miller v. 
 Hale, 26 Pa., 432. And sometimes may be necessary, as in case of 
 perjury or forgery. Taylor on Evidence, Sect. IS3S. But otherwise, 
 by reason of danger of loss, it should not be removed. Ibid. 
 
 Rule 79. The satisfaction (a) or discontinuance (b) of 
 a case, or the marking of it to the use of another, may be 
 entered on the docket by the plaintiff or his attorney, being 
 
R 80 MIDDLE DISTRICT RULES. 132 
 
 attested by the clerk; but no one except the clerk shall make 
 any other entries thereon. 
 
 [East. Dist. (Pa.), Rule 19, Sect. 4.] 
 
 (a) In moving for a satisfaction under the statute, the debt must 
 actually have been paid. Felt v. Cook, 95 Pa., 247. Melan v. Smith, 
 134 Pa., 649. And so must the costs. York County v. Ling, 15 Dist. 
 (Pa.), IS3. 
 
 (&) A discontinuance must be by leave of court, but leave will be 
 assumed to have been given in the first instance and will not be al- 
 lowed to be withdrawn except where it involves some unjust disad- 
 vantage to the defendant or other interested party, which is not the fact 
 simply because the case is at issue on a plea of set off. The dis- 
 charge of a rule to strike off the discontinuance is the equivalent of 
 original leave. ConsoHdated Nat'l Bank v. McManus, 217 Pa., 190. 
 
 Rule 80. Upon a writ of error or appeal being taken to 
 the Circuit Court of Appeals, the parties may stipulate that 
 certain parts only of the record are relevant, and they shall 
 thereupon be printed and returned by the clerk at the ex- 
 pense of the party taking the appeal or writ. But in the 
 absence of any such stipulation he shall certify and print 
 the whole (a). 
 
 (a) There is very little, if anything, left to this rule by the changes 
 in the law which have occurred since it was promulgated. By the 
 rules of the Court of Appeals of this Circuit (Rule 23), which took 
 effect March i, 1910, the printing of the record is substantially com- 
 mitted to the clerk of that Court, who, for preparing the record for 
 the printer, indexing the same, supervising the printing, and distribut- 
 ing the copies, is entitled (Rule 29), to a fee of twenty-five cents for 
 each printed page of record and index. There are other provisions 
 with regard to what the record is to contain, which subject is treated at 
 large in the rule, but the rule itself will have to be consulted with re- ■ 
 gard to them. It is there, however, among other things, provided 
 (Sect. 8), that: "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." This rule, however, in turn is modified by Act 
 of Congress of February 13, 1911, 36 Stat., 901, where it is provided 
 that the appellant or plaintiff in error shall print and file with the clerk 
 of the Court of Appeals twenty-five printed transcripts of the record 
 and all such part or abstract of proofs as the rules of the Circuit Court 
 of Appeals may require, in such form as the Supreme Court shall pre- 
 scribe, one of which printed transcripts shall be certified by the clerk 
 of the lower Court under seal, and three copies thereof be furnished 
 to the opposite party at least twenty days before the argument. It 
 is further expressly provided that no written or typewritten transcript 
 of the record shall be required. There is also a provision for utilizing 
 the copies of the record so printed in case of an appeal to the Supreme 
 Court. Apparently the clerk, under this statute, can make no charge 
 for certifying the record, although, as the law stood before this Act 
 was passed, he was entitled to fifteen cents (ijc.) a folio for making 
 
133 MIDDLE DISTRICT RULES. R 8o-n 
 
 up and certifying it. Hoysradt v. D. L. & W. Railroad, 182 Fed., 880; 
 but was entitled to nothing more than the cost of the printing, where 
 that was undertaken. Thornton v. Insurance Co., 125 Fed., 250. ' 
 Doherty Acct's, Bowler's Comp. Dec, 253. 
 
 Orily such parts of the record should, in any case, be printed as 
 are involved in the disposition of the case, and the practice of bur- 
 dening It with others is to be discountenanced. Pennock v. Dialogue, 2 
 Pet, 115. No paper is to be considered a part of the record on re- 
 view that is not made such by the pleadings or the opinion of the 
 Court referring to it. Fisher v. Cockerell, 5 Pet.," 248, 254. The opin- 
 ion of the Court below should always be included. Teller v. United 
 States, III Fed., 119. C. C. A. Rule 14, Sect. 3. No original papers 
 are sent up except where necessary for inspection. Craig v. Smith, 100 
 United States, 226. Herman Keck Mfg. Co. v. Lorsch, 179 Fed., 485. 
 But the appellate court may order any original document or other 
 evidence to be sent up in addition to what is printed. Act Feb. 13, 
 1911, Sect. i_, 36 Stat., 901. C. C. A. Rule 14, Sect. 5. If the record 
 as returned is too meagre, the appellate court, upon proper application, 
 will supply what is omitted by a certiorari. Hoskin v. Fisher, 125 U. S., 
 217. Redfield v. Parks, 130 U. S., 623. C. C. A. Rule 20. In case the 
 clerk is requested to include a paper by one party, and to leave it out 
 by the other, he may apply to the Judge for instructions. Hoe v. Kah- 
 ler, 27 Fed., 145. 
 
 The following order of Court has also recently been pro- 
 mulgated. 
 
 In order to conform the practice of the Clerk's office to the pro- 
 visions of the "Act to diminish the expense of proceedings on appeal," 
 passed February 13th, 191 1, the following rules are adopted, viz.: 
 
 1. The printing of all transcripts of record on appeals or writs of 
 error shall be prepared in the form and style required at the time by 
 the Rules of the United States Circuit Court of Appeals for the Third 
 Circuit. 
 
 2. The Clerk shall, on application of the appellant or plaintiff 
 in error, deliver to him, or to his counsel, for the purpose of printing, 
 such original pleadings, orders, proofs and papers filed in the case in 
 which a transcript is desired, as may be required, and shall also fur- 
 nish therewith copies of orders entered on the journal of the court 
 which may not be in the files in said case. 
 
 A receipt, stating separately each filed paper, shall be given by the 
 person or persons to whom they are delivered, to the Clerk and by 
 him filed. 
 
 All papers taken from the Clerk's Office and for which such receipt 
 is given, shall be carefully preserved and returned to the Clerk at the 
 time the printed transcript is presented for certification. 
 
 3. Where a final decree or judgment of this court is sought to be 
 reviewed on appeal to the United States Circuit Court of Appeals, the 
 parties may agree, by written stipulation to be filed with the Clerk of 
 this Court, that parts only of the record or of the proofs shall be 
 printed. 
 
 4. If the appellant or plaintiff in error does not request the printing 
 of the complete record and proofs but only a part thereof, and a stipu- 
 lation is not filed with the Clerk, as provided in paragraph 3 of this 
 rule, he shall immediately furnish the adverse party with a statement 
 of such parts as he desires printed. The adverse party shall, within 
 
R 81-82 MIDDLE DISTRICT RULES. 134 
 
 ten da3s after receiving such statement, unless the time-^s extended 
 l;y the court, file with the clerk a separate written statment of such 
 additional parts of the record or proofs which he desires included in 
 the printing. 
 
 The appellant or plaintiff in error shall cause transcripts to be print- 
 ed containing all parts of the record or proofs designated by either of 
 the parties in their written statements or by stipulation. 
 Entered, March 2, 1912. 
 
 Rule 81. The clerk's office and the permanent records 
 of the Court shall be at Scranton (a), but auxiliary offices, 
 with a deputy clerk at each, shall also be kept at Harrisburg 
 (b) and at Williamsport, where suits may be begun, process 
 (mesne or final) be isstted, and papers be filed with the same 
 force and effect as if done at Scranton. 
 
 (a) The Act of Congress of June 30, 1902, Sect. 2, 32 Stat, p. 549, 
 provides that the permanent records shall be kept at Scranton, but au- 
 thorizes the Court to provide by rule for the keeping of provisional or 
 temporary records at Harrisburg and Williamsport, of such actions, 
 suits or proceedings as may be there entered or brought. 
 
 (&) By Act March 3, 1911, Sect. 103, 36 Stat., 1123, the clerk of 
 the district is required to maintain an office in charge of himself or a 
 deputy at Harrisburg. 
 
 Rule 82. Where suit is brought at Harrisburg or 
 Williamsport, the deputy clerk shall enter the case in a docket 
 to be kept for the purpose, and shall thereupon issue the ap- 
 propriate process under the seal of the court to bring in the 
 defendant. He shall at the same time forward to the clerk 
 at Scranton the original papers filed in the case, with an ex- 
 act minute of the docket entries made and the process issued, 
 retaining a copy of such papers, to be furnished by counsel. 
 And the clerk shall make a similar entry of the case on the 
 regular docket of the term in its order, assigning to it its 
 proper number, a memorandum of which shall be sent to the 
 deputy clerk and be adopted by him. And thereafter, any 
 paper filed in the case, being furnished in duplicate by coun- 
 sel for the purpose, shall be similarly treated, a copy being 
 retained by the deputy clerk, and the original being for- 
 warded to Scranton, with a minute of the entry made with 
 regard to it. And any order, judgment or decree shall be 
 likewise entered in the same terms in both places. Provided, 
 that when process is issued, the marshal shall make return 
 thereof at Scranton, of which a minute shall be sent to the 
 deputy clerk at the place where suit was brought who shall 
 note the same upon his record. And provided further, that 
 
135 MIDDLE DISTRICT RULES. R 82 a-83 
 
 all searches and certificates shall be made at Scranton, and in 
 case of any variance, the record as it is there shall be taken. 
 
 This and the preceding rule are based on Act June 30, 1902, 32 Stat, 
 P- 549, which was an amendment to the act creating the district, and 
 conforms thereto. 
 
 Rule 82 a. At the conclusion of every case the clerk shall 
 make a final record by copying at large in a docket provided 
 for the purpose, the pleadings, process and decree, together 
 w^ith such orders and memoranda as may be necessary to show 
 the jurisdiction of the Court and the regularity of the proceed- 
 ings. 
 
 As to final records see Rev. Stat. Sect., 750. The Thomas Fletcher, 
 24 Fed., 481. Blain v. Insurance Co., 30 Fed., 667. Jones v. United 
 States, 39 Fed., 410, 413. Consolidated Store Co. v. Dettenthaler, 93 
 Fed., 307. United States v. Van Duzee, 140 U. S., 169. United States 
 V. King, 147 U. S., 676, 684. 
 
 REMOVALS (,0.). 
 
 Rule 83. Where proceedings have been taken for the 
 removal (6) from a state court of a civil suit or action (c), 
 either party may forthwith file, as of course, a transcript of 
 the record in this court, and thereupon, on notice to the oppo- 
 site party, such interlocutory proceedings may be had therein 
 as may be justified thereby {d) . 
 
 (a) The subject of removals is covered by Act March 3, 1911, 
 Sect. 28-39 inclusive. 36 Stat, 1094-1099. For the general practice 
 with regard to same, see Donovan v. Wells Fargo & Co., 169 Fed., 
 363. 
 
 (&) A petition for removal did not formerly need to be verified, 
 altlaough it was considered the better practice to do so. Kansas City 
 R. R. V. Daughtry, 138 U. S., 298, 303. Sweeney v. Coffin, i Dill., 73. 
 Porter v. Northern Pacific R. R., 161 Fed., 773. Donovan v. Wells 
 Fargo & Co., 169 Fed., 363. But by act of March 3, 1911, Sect 29, 
 36 Stat, 1095, this is now required. For form of verification see 2 
 Loveland's Fed. Forms, 1275. A verification by an attorney on in.- 
 formation and belief is sufficient. Porter v. Northern Pacific R. R., 
 161 Fed., y73. A bond capable of being enforced in case of a default 
 is an essential prerequisite to a removal. Alexandria Nat'l Bank v. 
 Willis C. Bates Co., 160 Fed., 839. 
 
 The amount of an attorney fee given by the state law in suits to 
 enforce a miner's lien cannot be added to the amount of the lien, in 
 order to make up the requisite jurisdictional amount for a removal. 
 Swofford v. Cornucopia Mines, 140 Fed., 957. 
 
 Except where the removal is on the ground of local prejudice, it 
 is too late to apply after the time fixed for filing a dilatory plea. 
 First Nat. Bank v. Appleyard, 138 Fed., 939. Martin v. Bait. & Ohio 
 R. R., 151 U. S., 673. Under the Pennsylvania practice it should also 
 
R 83-n MIDDLE DISTRICT RULES. 136 
 
 be made before the time for filing an affidavit of defence. Muir v. 
 Preferred Accident Ins. Co., 203 Pa., 338. Overholt v. German- 
 American Ins. Co., 155 Fed., 488. But where the time for fiHng is 
 extended by agreement, it extends the time to remove. Muir v. 
 Preferred Accident Ins. Co., 203 Pa., 338. Sanderlin v. People's 
 Bank, 140 Fed., 191. Russell v. Harriman Land Co., 14s Fed., 745. 
 Tevis V. Palatine Ins. Co., 149 Fed., 560. Where the defendant is 
 required to appear and plead within twenty days, the petition to 
 remove is in time on the last day of the period, excluding the da(y 
 from which it began to run. South Dakota Cent. R. R. v. Chicago, 
 Michigan & St. Paul R. R., 141 Fed., 578. Where by amendment the 
 plaintiff discloses for the first time a fact which justifies a removal, 
 a petition to remove may be thereupon filed. Robinson v. Parker- 
 Washington Co., 170 Fed., 850. 
 
 The right to remove on the ground that the case involves a ques- 
 tion arising under the Constitution and laws of the United States 
 must appear from the plaintiff's statement, and cannot be made out 
 by the removal petition. Tenn. v. Union & Planters' Bank, 152 U. 
 S., 454. Galveston R. R. v. Texas, 170 U. S., 226. Houston & Cent 
 R. R. V. Texas, 177 U. S., 566. Hall v. Chicago, Rock Island & Pa- 
 cific R. R., 149 Fed., 564. Oregon v. Three Sisters Irr. Co., fs8 
 Fed., 346. People's tj. S. Bank v. Goodwin, 160 Fed., 727. Rural 
 Home Tel. Co. v. Powers, 176 Fed., 986. Dale v. Smith, 182 Fed., 
 360. The existence of a separate controversy, entitling a single 
 defendant to remove, must also appear on the face of the plaintiff's 
 pleadings. Ches. & Ohio R. R. v. Dixon, 179 U. S., 131. A dismissal 
 on the merits as to non-removable defendants, does not aflford oppor- 
 tunity for a removal as to others who might have removed had they 
 been sued alone. Lathrop, Shea & Henwood v. Interior Construction 
 Co., 21S U. S., 246. The burden of proving a fraudulent joinder to 
 prevent a removal is on the removing defendant. Stevenson v. Illi- 
 nois Cent. R. R., 192 Fed., 956. There is a separate controversy as 
 to different tracts of land joined together in condemnation proceed- 
 ings. Deepwater Railway v. West. Pocahontas Coal Co., 152 Fed., 
 824. 
 
 (c) Removabi-e Cases. Condemnation proceedings are removable. 
 Boom Co. V. Paterson, 98 U. S., 403. Searl v. School district, 124 
 U. S., 197. Martin v. Bait. & Ohio R. R., 151 U. S., 673. Helena 
 Power Co. v. Spratt, 146 Fed., 310. Kansas City v. Hennegan, 152 
 Fed., 249. Fishblatt v. Atlantic City, 174 Fed., 196. So also 
 is an assessment proceeding for a municipal improvement. In re City of 
 Chicago, 64 Fed., 897 ; or an appeal from the decision of the state engi- 
 neer with regard to a water appropriation permit. Waha-Lewiston L. & 
 W. Co. v. Lewiston Sweetwater Irr. Co., 158 Fed., 137. There is 
 also a separable controversy which is removable, where the owners 
 of different tracts of land are joined in one condemnation proceed- 
 ing. Deepwater Railway v. West. Pocahontas Coal Co., 152 Fed., 
 824. And the land owner being the real defendant, he may remove 
 into the Federal Court, if the proper conditions exist, however he is 
 denominated by the state law. Mason City, &c., Railroad v. Boynton, 
 204 U. S., 570. Nor can the state defeat the right to remove by 
 changing the form of the action. Wilson v. Smith, 66 Fed., 81. 
 Metropolitan Water Co. v. Kansas City, 164 Fed., 738. 
 
 An action by an alien against a non-resident citizen is removable 
 by the latter. Barlow v. Chicago & Northwestern R. R., 164 Fed., 
 765. Rones v. Katalla Co., 182 Fed., 946. 
 
137 MIDDLE DISTRICT RULES. R 83-n 
 
 A case arising under the Federal law is removable where it involves 
 the jurisdictional amount. Lewis Pub. Co. v. Wyman, 152 Fed., 
 
 200 
 
 A garnishee proceeding after judgment against the defendant is 
 removable by a non-resident garnishee, which the fact that the de- 
 fendant is a citizen and resident of the same state will not defeat. 
 Baker v. Duwamish Mill Co., 149 Fed., 612. 
 
 A corporation, although dissolved, may nevertheless remove where 
 it is authorized to prosecute and defend suits notwithstanding the 
 dissolution. Groom v. Mortimer Land Co., 192 Fed., 849. 
 
 Non-Removable Cases. A case under the Federal Employers' Lia- 
 bility Law is not removable upon any ground. Symonds v. St. Louis, 
 &c., Railway, 192 Fed., 353. Strauser v. Chic, Burl. & Quincy R. R., 
 193 Fed.. 293. Saielc v. Pennsylvania R. R., 193 Fed., 303. Lee v. 
 Toledo, St. Louis & West. R. R., 193 Fed., 685. Ullrich v. New York, 
 New Haven & Hartford R. R., 193 Fed., 768. But see Van Brimmer v. 
 Texas & Pacific R. R., 190 Fed., 394. 
 
 That the defendant is a receiver appointed by a Federal Court does 
 not make the case removable as one arising under the Federal law. 
 Rural Home Telephone Co. v. Powers, 176 Fed., 986. Dale v. Smith, 
 182 Fed., 360. A case is not separable so as to permit of a removal 
 where it is made up of several claims, as to one of which this is not 
 true. Coram v. Davis, 182 Fed., 939. But there is a separate and 
 distinct controversy, which is removable where owners of different 
 tracts of land are joined in one condemnation proceeding. Deep- 
 water Railway v. West Pocahontas Coal Co., 152 Fed., 824. 
 
 Pending actions will not be consolidated so as to make up the 
 requisite jurisdictional amount to warrant a removal. Pearce Mfg. 
 Co. V. Hartford Fire Ins. Co., 15 Dist. (Pa.), 645. A defendant 
 cannot secure a removal by setting up a counter claim exceeding 
 the jurisdictional amount where the plaintiff's claim is insufficient. 
 Illinois Cent. R. R. v. Waller, 164 Fed., 358. The Federal Court 
 cannot get jurisdiction by the removal of a case which was not within 
 the jurisdiction of the state court. Darnell v. Illinois Cent. R. R., 190 
 Fed., 656. 
 
 An appeal from an assessment of taxes is not removable where 
 the Court in respect to such proceedings is not a judicial body, but 
 merely acts as a Board of Commissioners. Upshur Co. v. Rich, 13s 
 U. S., 467. But where the appeal proceeds according to judicial 
 methods, the right to remove would seem to exist. Ibid. 
 
 While condemnation proceedings are removable, a petition to 
 railroad commissioners for leave to condemn is not. New York, &c., 
 R. R. V. Cockcroft, 46 Fed., 881 ; nor proceedings to determine the 
 right to condemnation and compensation. Hartford, &c., R. R. v. 
 Montague, 94 Fed., 227. 
 
 (d) Where the case is removed on the ground of diverse citizen- 
 ship alone, upon the filing of the petition and bond, if filed in time, 
 the jurisdiction of the State Court ceases. Virginia v. Rives, 100 U. 
 S., 313, 316. Mannington v. Hocking Valley R. R., 183 Fed., 133. 
 But the State Court is not required to let go until a case is made 
 out, which shows on its face that the removal is of right. The Re- 
 moval Cases, 100 U. S., 457. And the Federal Court is not put in 
 possession of the case until a transcript of the record has been filed, 
 until which time everything is held in abeyance. Mahoney Mining 
 Co. v. Bennett, 4 Sawy., 289. Delbanco v. Singletary, 40 Fed., 177. 
 
R 83-n MIDDLE DISTRICT RULES. 138 
 
 By Act of March 3, 191 1, Sect. 29, 36 Stat., 109s, except where the 
 removal is on the ground of local prejudice, the removing party is 
 required to file the record in the Federal Court within thirty days from 
 the date of filing the petition, and must plead, answer or demur with- 
 in thirty days thereafter. But it is competent for the court to receive 
 the record in advance, which may be provided for by rule. Creagh v. 
 Equitable Life Assur. Sec, 83 Fed., 849. And to take such action 
 thereon, at the instance of either party, as may be necessary to pre- 
 serve the rights involved. Arthur v. New Eng. Mut. Insurance Co., 
 6 W. N. C, 403. Consolidated Traction Co. v. Guarantors' Liability 
 Co., 78 Fed., 657. In re Newark Traction Co., no Fed., 25. Such as 
 the granting of a restraining order. Mahoney Mining Co. v. Bennett, 
 4 Sawy., 289; the appointment of a receiver. Commercial Bank v. Cor- 
 bett, 5 Sawy., 172; the modification of an injunction. Portland v. Ore- 
 gonian R. R., 6 Fed., 321 ; the dissolution of an injunction and vacating 
 of a receivership. Texas &c. R. R. v. Rust, 17 Fed., 275 ; the hearing 
 of a motion to remand. Hartford &c. R. R. v. Montague, 94 Fed., 227 ; 
 Deblanco v. Singletary, 40 Fed., 177. Mills v. Newell, 41 Fed., 529; 
 Thompson v. Chicago &c. R. R., 60 Fed., 773. Anderson v. Appleton, 32 
 Fed., 857. New Jersey v. Corrigan, 139 Fed., 758. Harrington v. 
 Great North. R. R., 169 Fed., 714. (Contra, as to motion to remand. 
 Kansas City R. R. v. Interstate Lumber Co., 36 Fed., 9. Frink v. Black- 
 inton, 80 Fed., 306) ; or fixing the time for the appointment of com- 
 missioners in condemnation proceedings. In re Newark Traction Co., 
 no Fed., 25. {Contra, in re Barnesville R. R., 4 Fed., 10). The inter- 
 locutory proceedings, however, must not be such as would determine the 
 whole merits of the controversy; or for which there is no need of 
 haste. Thus while depositions de bene esse may be taken. Kansas 
 City R. R. V. Interstate Lumber Co., 36 Fed., 9, 11; a commission to 
 take depositions generally should not be granted. North American 
 Transportation Co. v. Howells, 121 Fed., 694; although where the re- 
 moving party joins in the execution of the commission, as by securing 
 the appointment of a special commissioner, he will be bound. Zych v. 
 American Car & Foundry Co., 127 Fed., 723. Nor should a preliminary 
 injunction, necessary to preserve a franchise, pending the consideration 
 of its exclusive character, be dissolved. New Orleans City R. R. v. 
 Crescent City R. R., S Fed., 160; nor one which was granted to stay 
 a sale on a mortgage. Hamilton v. Fowler, 83 Fed., 321 ; nor can 
 judgment be taken for want of an appearance and plea before the time 
 for filing, on a rule pending at the time of the removal. Torrent v. 
 Martin Lumber Co., 37 Fed., 727. This is regulated in this Court by 
 Rule 86, infra. Cf. Bryce v. Sotithern R. R., 129 Fed., 966. Pelzer 
 Mfg. Co. v. St. Paul, 40 Fed., 185. 
 
 A removal by the defendant does not prevent him from challenging 
 the jurisdiction of either the state or the federal court over him. Me- 
 chanical Appliance Co. v. Castleman, 215 U. S., 437. Davis v. Cleve- 
 land &c. R. R., 146 Fed., 403. North West. Bank v. Silberman, 154 
 Fed., 809; nor is he estopped from removing by a motion made in the 
 State Court to set aside the service before removal. Johnson v. Com- 
 puting Scale Co., 139 Fed., 339. Whether a motion to set aside the 
 service of summons may be renewed, after a removal, where it has been 
 disposed of by the State Court adverselv, is in doubt. Guernsey v. 
 Cross, 153 Fed., 827. Hoyt v. Ogden Portland Cement Co., 185 Fed., 
 889, Cf. Lathrop v. Interior Construction Co., 150 Fed., 666. Flint v. 
 Coffin, 176 Fed., 872. 
 
139 MIDDLE DISTRICT RULES. R 84-85 
 
 Rule 84. Where a case is removed from a state court 
 on the ground of local prejudice (a), a copy of the order of 
 this court directing the removal shall be forthwith filed with 
 the state court, and a transcript of the record be taken and 
 filed with the clerk here (&). 
 
 (a) Local prejudice is not a separate ground of removal. Cochran v. 
 Montgomery, igp U. S., 260; it only operates to extend the time. The 
 requisite diversity of citizenship must also exist. Cleveland v. Cleve- 
 land R. R., 147 Fed., 171. 
 
 (6) This is the course prescribed in Pennsylvania Co. v. Bender, 
 148 U. S., 255, 259 ; and may properly be provided for by rule. Creagh 
 v. Equitable Life Assur. Soc, 83 Fed., 849. A removal of this char- 
 acter must be moved for, on or before the term at which the case 
 could be first tried, and before the trial of it. Parker v. Vanderbilt, 
 136 Fed., 246. It is too late, after a mistrial. Farmers Bank v. Schus- 
 ter, 86 Fed., 161. The opposite party is entitled to be heard before 
 an order of removal on the ground of local prejudice is made. Schwenk 
 V. Strang, 59 Fed., 209. Ellison v. Louis. & Nash. R. R., 112 Fed., 805. 
 If uncontroverted the petition may be taken as prima facie sufficient. 
 In re Pennsylvania Co., 137 U. S., 451. For form of petition, see 2 
 Loveland Fed. Forms, Nos. 1284, 1285 ; and for order staying pro- 
 ceedings in the state court, and for a certiorari to remove the record, 
 see Ibid, Nos. 1289 & 1297. 
 
 Rule 85. A motion to remand (a) a case to the state 
 court shall be made within ten days (b) after a transcript of 
 the record has been filed in this court and notice thereof given, 
 and before the party moving to remand has taken any further 
 step therein (c). 
 
 [West. (Pa.), Dist., Rule 29.] 
 
 (o) A motion to remand may be made immediately upon the filing 
 of the transcript. Harrington v. Great Northern Railroad, 169 Fed., 
 714. It is for the Federal and not the State Court to determine, whether 
 the case has been properly removed. Ches. & Ohio R. R. v. McCabe, 
 213 U. S., 207. Shane v. Butte Electric Railroad, 150 Fed., 801. Bar- 
 low V. Chicago & Northwestern R. R., 164 Fed., 765. The refusal of 
 the State Court to allow a removal does not therefore affect the juris- 
 diction of the Federal Court. Atlantic Coast Line v. Bailey, 151 Fed., 
 891. And notwithstanding the refusal of the State Court to recognize 
 the removal, the Federal Court may enjoin further proceedings there. 
 Madisonville Traction Co. v. St. Bernard Mining Co., 196 U. S., 239. 
 Mutual Life Ins. Co. v. Langley, 145 Fed., 415. 
 
 Even after an order of remand, it may result from subsequent plead- 
 ings, or the conduct of the parties, that the cause is removable, in 
 which case a second application to remove may be made. Fritzlen v. 
 Boatmen's Bank, 212 U. S., 364. 
 
 It is not material that the plaintiffs are citizens of different states 
 from each other, so that none of them are the same as that of the 
 defendant. Sweeney v. Carter Oil Co., 199 U. S., 252. An allegation 
 of residence in a removal petition is not the equivalent of an allega- 
 tion of citizenship of a particular state, so as to make out the diversity 
 
R 86 MIDDLE DISTRICT RULES. 140 
 
 of citizenship on which the right to remove depends. Harding v. 
 Standard Oil Co., 182 Fed., 421. 
 
 A case cannot be removed wliere neither the plaintiff nor defendant 
 is a resident of the district. Ex parte Wisner, 203 U. S., 449. Yellow 
 Astor Mining Co. v. Crane Co., 150 Fed., 580. Southern Pacific R. R. 
 V. Burch, 152 Fed., 168. But objections to the Court's jurisdiction upon 
 this ground may be waived ; which is done by a general appearance. 
 Corwin Mfg. Co. v. Henrici Washer Co., 151 Fed., 938; or by whatever 
 is equivalent thereto, as by the entry of a general demurrer, callipg 
 for a ruling on the merits. Western Loan Co. v. Butte Mining Co., 
 210 U. S., 368. Peale v. Marian Coal Co., 172 Fed., 639. But the de- 
 fendant cannot improve his position after a motion to remand for want 
 of jurisdiction by entering a general appearance. Tierney v. Helvetia 
 Fire Ins. Co., 163 Fed., 82. Where the case has been removed by the 
 defendant on the ground of diversity of citizenship, he cannot have it 
 remanded because it develops at the trial that the plaintiff is an alien. 
 Rones v. Katalla Co., 182 Fed., 946. Nor can the plaintiff amend so 
 as to state a new or different cause of action, for which the defendant' 
 could not have originally been sued in that jurisdiction. Western 
 Wheeled Scraper Co. v. Gahagan, 152 Fed., 648. 
 
 (b) The objection that the removal was taken too late may be 
 waived, if not made in time. Martin v. Baltimore & Ohio R. R., 151 
 U. S., 687. 
 
 (c) A petition to remove may be amended to cure a defective al- 
 legation of citizenship, if moved for before action taken to remand. 
 Kinney v. Col. Sav. Assoc, 191 U. S., 78. Wilbur v. Red Jacket Coal 
 Co., 153 Fed., 662. De La Montanya v. De La Montanya, 1^8 Fed,, 117. 
 But an amendment assigning new grounds cannot be made. Shane v. 
 Butte Electric Railway, 150 Fed., 801. It is only where there is a 
 defective or informal statement of facts that an amendment is allow- 
 able ; not where there is an entire absence of essentials. Santa Clara 
 Co. V. Goldby Machine Co., 159 Fed., 750. 
 
 Where the jurisdictional amount is denied on a motion to remand, 
 the defendant is put to the proof of it. Wetmore v. Rymer, 169 U. S., 
 IIS. Davies v. Wells, 134 Fed., 139. Order of Railroad Telegraphers 
 v. Louisville & Nashville R. R., 148 Fed., 437. New Castle v. Western 
 Union Tel. Co., 152 Fed., 569. But the plaintiff cannot defeat a re- 
 moval by an offer to reduce his claim. Johnson v. Computing Scale 
 Co., 139 Fed., 339. Donovan v. Dixieland Amusement Co., 152 Fed., 
 661. 
 
 On remand to the State Court, a docket fee of $10. is taxable. Riser 
 V. Southern Railway, 116 Fed., 1014. Acker v. Charleston & West 
 Carolina R. R., 190 Fed., 288. 
 
 Rule 86. Where at the time a cause is removed from a 
 state court, a rule to do any act or to file any pleadings is 
 pending (a), the party against whom the rule was taken shall 
 be entitled to ten days after the transcript of the record has 
 been filed in this court and notice of such filing given, in 
 which to comply therewith (b), not less however in any 
 event than the time to which he would have been entitled- if 
 there had been no removal (c). 
 
 [West. (Pa.), Dist, Rule 29.] 
 
141 MIDDLE DISTRICT RULES. R 87-88 
 
 (a) The Federal Court takes the case in the condition it was in 
 at the time of the removal. Act March 3, 191 1, Sects. 36 & 38. 36 
 Stat., 1098. 18 Encycl. Plead. & Prac, 357. Lebensberger v. Scofield, 
 139 Fed., 380. Preston v, McNeil Lumber Co., 143 Fed., 555. And may 
 therefore permit an amendment of process or pleadings to the extent 
 permissible under the state law, provided it does not offend against 
 the Federal Law. Stone v. Speare, 175 Fed., 584 ; or may hear and 
 pass upon a pending motion to modify or vacate a restraining order 
 or preliminary injunction. Mannington v. Hocking Valley R. R., 183 
 Fed., 133; or to dissolve an attachment. Lebensberger v. Scofield, 139 
 Fed., 380. As to whether a motion to set aside the service of summons 
 may be renewed after a removal, even though decided adversely to the 
 defendant by the state court, see Lathrop, Shea & Henwood v. In- 
 terior Construction Co., 150 Fed., 666. Flint v. Coffin, 176 Fed., 872. 
 Contra. Guernsey v. Cross, 153 Fed., 827. Hoyt v. Ogden Portland 
 Cement Co., 185 Fed., 889. 
 
 (6) The removal suspends the running of a pending rule, until the 
 record is filed in the federal court, but does not enlarge the time for 
 complying with the rule further than that. Torrent v. Martin Lumber 
 Co., 37 Fed., 727. Bryce v. Southern R. R., 129 Fed., 966. But this 
 may be regulated by standing order. Pelzer Mfg. Co. v. St. Paul, 40 
 Fed., 185. Bryce v. Southern R. R., 129 Fed., 966. 
 
 (c) Where an order of removal is rescinded by the state court, as 
 improvidently granted, the defendant has a right to notice, and a rea- 
 sonable time to comply with a pending rule. Muir v. Ins. Co., 203 Pa., 
 338. 
 
 TERMS AND RETURN DAYS. 
 
 Rule 87. The terms of Court shall be as they may be 
 fixed from time to time by Act of Congress; but the Court 
 shall be open every day, Sundays and legal holidays excepted, 
 for motions, orders, and such other business as may be trans- 
 acted without a jury. 
 
 By Act of Congress of lune 30, 1902, 32 Stat., p. S49. terms of court 
 are to be held at Williamsport on the second Monday of January and 
 June; at Scranton on the fourth Monday of February and the third 
 Monday of October; and at Harrisburg on the first Monday of May 
 and of December in each year. 
 
 Rule 88. Every writ shall bear date on the day that it 
 is issued (o), and shall be made returnable {b) on the first 
 day of the next succeeding term; provided, that in case of a 
 summons, if there shall not be ten days intervejiing before 
 the next term (c), it shall be made returnable on the first 
 day of the second succeeding term ; and provided further, 
 that the first Monday of August and the first Monday of Sep- 
 tember shall be additional return days to which all writs 
 immediately preceding each of them shall be made returnable, 
 as though it was the first day of a term. 
 
R 89-90-91 MIDDLE DISTRICT RULES. 142 
 
 [East. (Pa.), Dist., Rule 25. West. Dist. Rule 25. In 
 both of these districts, the first Monday of each month is 
 made a return day.] 
 
 (a) A summons cannot be issued on the return day and made re- 
 turnable the same day. Dyott v. Pennock, 2 M., 213. But it may be 
 served on the return daj'. Herberton v. Stockton, 2 M., 164. Boyd v. 
 Serrill, 2 Clark, 327. 
 
 (b) A Federal Court may regulate how its writs shall be return- 
 able, and does not have to conform to the State practice. Shepard v. 
 Adams, 168 U. S., 618. Bost. & Maine R. R. v. Gokey, 210 U. S., 155. 
 Kinney v. U. S. Fidelity & Guaranty Co., 182 Fed., 1005. 
 
 (c). A summons may be issued within ten days of the next return 
 day, if the defendant be given ten days after service in which to appear. 
 Fisher v. Potter, 2 M., 147. But at least ten days must intervene be- 
 tween the issue and the return day. Hatfield v. Swiler, 28 Pa., 522. 
 Judgment for want of an appearance without ten days' service is bad. 
 Fitzsimons v. Salomon, 2 Binn., 436. 
 
 TRIALS AND TRIAL LISTS. 
 
 Rule 89. Every case shall be tried at the place in the 
 district appointed for the holding of Court, which is nearest 
 to the defendant's residence, unless counsel shall agree, or the 
 court shall order otherwise. 
 
 By Act March 3, 1911, Sect. 103, 36 Stat., 1123; civil suits instituted 
 at Harrisburg: shall be tried there, "if either party resides nearest that 
 place of holding court, unless by consent of parties they are removed 
 to another place for trial." 
 
 Rule 90. The trial list shall be made up by the clerk 
 thirty days before the beginning of each term, and all cases 
 at issue shall be placed thereon in the order of their age, 
 notice thereof being forthwith given to counsel. Other cases 
 may be added as of course, at any time, by agreement of the 
 parties; or may be ordered on, by the court, on notice to the 
 parties, not less however as to any case than twenty days 
 before the time when it will be called for trial. 
 
 [East. Dist. (Pa.), Rule 28, Sects, i, 2 and 3. West. Dist, 
 Rule 31.] 
 
 Rule 91. Every application for a continuance, upon the 
 ground of the absence of a material witness, shall be accom- 
 panied by the affidavit of the party applying therefor, setting 
 forth the facts which he expects to prove by such witness, 
 and the efforts made to procure his attendance. And if it 
 be admitted by the opposite party that the witness, if called. 
 
143 MIDDLE DISTRICT RULES. R 92-93-94-95 
 
 would testify, as set forth in the affidavit, the court, in its 
 discretion, may refuse the application. 
 [East. Dist. (Pa,). Rule 27, Sect. 4.] 
 
 Rule 92. No case regularly on the trial list shall be 
 continued by agreement of the parties unless the court con- 
 sents thereto. 
 
 Rule 93. The entire examination of a witness shall be 
 conducted by one only of the counsel, on either side. 
 
 Rule 94. The party calling a witness, when required by 
 the court (a), shall state briefly what is proposed to be 
 proved by his testimony, and the legal purpose of it (b). 
 
 (o) It is within the discretion of the Court to refuse to permit 
 a formal offer of testimony, where a similar offer has already been 
 made and ruled upon. Sprague v. Reilly, 34 Pa. Sup. Ct., 332. 
 
 (6) Where the materiality of an offer of evidence is not apparent, 
 the party may be required to state the purpose. Morgan v. United 
 States, 169 Fed., 242. 
 
 Rule 95. On the trial of a cause, counsel for the party 
 having the affirmative of the issue on the pleadings, shall open 
 the case (a), and at the conclusion of the evidence, shall first 
 address the jury, and be followed by counsel for the oppo- 
 site party ; counsel making the first address having the right 
 to reply and being confined to the points made by his oppo- 
 nent (&). 
 
 In criminal cases, other than capital, where the defendant 
 ofifers no evidence, his counsel shall have the closing address 
 to the jury. 
 
 [East. Dist. (Pa.), Rule 27, Sect, i.] 
 
 (o) Where the plaintiff fails to appear at the trial, a non-suit 
 should be entered. It is error to take a verdict for defendant. Pat- 
 ting V. Spring Valley Coal Co., 98 Fed., 811. Felts v. D. L. & W. R. R., 
 170 Pa., 432. Crumley v. Lutz, 180 Pa., 476. 
 
 If it is evident on the opening of counsel, that the plaintiff has 
 no case, or the defendant has no defence to the case made out by 
 the plaintiff, the Court may direct a verdict accordingly, without 
 taking testimony. Oscanyan v. Arms, 103 U. S., 261. Butler v. 
 National Home, 144 U. S., 64. The Court may also summarily dismiss 
 a case which is clearly frivolous and vexatious. O'Connell v. Mason, 
 132 Fed., 245. Cornue v. Ingersoll, 174 Fed., 666. 
 
 (b) This is declared to be the correct practice. Blight v. Ashley, 
 I Pet., C. C, 20 n. In ejectment the plaintiff is always entitled to 
 begin and conclude. McCausland v. McCausIand, i Yeates, 304. Von 
 Storch V. Von Storch, 196 Pa., 545- 
 
R 96 MIDDLE DISTRICT RULES. 144 
 
 Rule 96. Points upon which the Court is requested to 
 charge the jury, shall be so framed that they can be answered 
 by simply affirming or denying them (a). They shall be sub- 
 mitted in writing, and a copy furnished to the opposing coun- 
 sel, before the argument to the jury has been begun (&). 
 
 (a) A party is entitled to a distinct answer responsive to his 
 points, if they are properly drawn, present questions that fairly arise 
 in the case, and can be answered by a simply affirmance or refusal. 
 Whitmire v. Montgomery, 165 Pa., 253, 261. The last clause of a 
 point, that the verdict should be for the plaintiff or defendant, ac- 
 cording to the party presenting it, is a very common and a very 
 dangerous ' addition, which often prevents an affirmance where the 
 law stated in the point is otherwise unobjectionable. Widdall v. 
 Garsed, 125 Pa., 358, 361. Keiper v. Equitable Life Assur. Soc, 159 
 Fed., 206. It is not for the Court to reform requests and throw out 
 objectionable parts. Exchange Bank v. Moss, 149 Fed., 340. A mo- 
 tion for a directed verdict is too general unless the attention of the 
 Court is called to the ground on which it is predicated. Choctaw, 
 Okla., & Gulf R. R. v. Jackson, 192 Fed., 792. Where both parties 
 ask for binding instruction without more, they both affirm that 
 there are no disputed facts, and the judgment is therefore conclu- 
 sive, if there is any evidence to sustain it. Beuttell v. Magone, 157 
 U. S., 154. Bankers' Mutual Casualty Co. v. State Bank, 150 Fed., 
 78. Pensacola Bank v. Merchants' & Farmers' Bank, 180 Fed., 504. 
 Melton V. Pensacola Bank, igo Fed., 126. But not so, where other 
 instructions are asked in case binding instructions are denied. Em- 
 pire Cattle Co. V. Atch., Topeka & Santa Fe R. R., 210 U. S., i. 
 Minahan v. Grand Trunk Railway, 138 Fed., 37. McCormick v. Na- 
 tional City Bank, 142 Fed., 132, 133. Charlotte National Bank v. 
 Southern .R. R., 179 Fed., 769. Pensacola Bank v. Merchants' & Far- 
 mers' Bank, 180 Fed., 504. Farmers' & Merchants' Bank v. Maines, 
 183 Fed., 37. 
 
 (6) A party cannot complain that the opportunity to present 
 points is not left open indefinitely. Astruc v. Star Co., 182 Fed., 705. 
 The court may therefore refuse to consider requests not presented 
 until after argument, in disregard of the rule. Atch., Topeka & S't. 
 Fe R. R. v. Hamble, 177 Fed., 644; and particularly an oral request 
 not made until after the charge is completed and the jury is about 
 to, retire. Keystone Bank v. Safety Banking Co., 179 Fed., 727. 
 
 The plaintiff has the right to take a voluntary non-suit, even after 
 an announcement of the opinion of the Court, on motion for a di- 
 rected verdict. Meyer v. National Biscuit Co., 168 Fed., 906. 
 
iistideik: 
 
 ACCOUNTS. Rule, 
 
 auditor passing on, to give three weeks' notice 36 
 
 ADMINISTRATORS. 
 
 affidavit of defence, when and, when not required of . . . . 13 
 
 ADMISSIONS. 
 
 book account, when taken as admitted. 2, 3, 4 
 
 corporation, when existence of admitted 6 
 
 partnership, when existence of admitted 5 
 
 petition for rule to show cause, when admitted 9 
 
 partial denial of 9 
 
 writings for payment of money, execution of, admitted 
 
 when I, 3, 4 
 
 writings for payment of money, non-acceptance, non-pay- 
 ment, &c., admitted when i, 3, 4 
 
 written documents, not directly in issue, admitted when. . 8 
 admission as to, not to extend to rele- 
 vancy 8 
 
 AFFIDAVITS OF DEFENCE. 
 
 assumpsit and scire facias, when required in loseci 
 
 exceptions to sufficiency of 17 
 
 executors and administrators, when not required of 13 
 
 form of 14 
 
 to be made by defendant when practicable 14 
 
 when made by some one other than defendant 14 
 
 may be by officer or agent of corporation 14 
 
 judgment for want of sufficient 17 
 
 replevin, when required in loseca 
 
 what to set forth 10 sec2 
 
 rule for judgment for want of sufficient 17 
 
 supplemental affidavit, when ordered 17 
 
 when defence is to part only of plaintiff's claim 15 
 
 where adjudged insufficient in part 16 
 
 AGREEMENTS. 
 
 of attorneys when to be in writing 34 
 
 APPEARANCE. 
 
 attorney not to withdraw without leave 32 
 
 judgment for want of, in certain actions 20 
 
 against garnishee in attachment 
 
 execution 26 
 
 praecipe for 18 
 
 special, when and how allowed 19 
 
 ARGUMENTS. 
 
 briefs, when to be printed 23, 24 
 
 convenience of counsel as to 21 
 
 oral, required 23 
 
 records for, when to be printed 24 
 
 printing of, to be taxed as costs 24 
 
 right to begin and conclude _. 23 
 
 testimony for, to be taken by depositions 22 
 
146 INDEX TO MIDDLE DISTRICT RULES. 
 
 ASSUMPSIT. Rule- 
 affidavit of defence required in, when lo 
 
 judgment for want of appearance in 20 
 
 ATTACHMENT EXECUTION. 
 
 interrogatories to be exhibited to garnishee 27 
 
 judgment against garnishee for failure to answer interroga- 
 tories 27 
 
 judgment against garnishee on admissions in answers 27 
 
 for want of appearance 26 
 
 proceedings in fraudulent attachment to be the same as in. 28 
 
 ATTACHMENTS. 
 
 state laws adopted 25 
 
 requirements of, to be followed 25 
 
 against fraudulent debtor, rule to dissolve 28 
 
 proceedings on, same as in at- 
 tachment execution 28 
 
 ATTORNEYS. 
 
 admission of, qualifications for 29 
 
 pro hac vice, when 29 
 
 agreements of, when to be in writing 34 
 
 appearance to be by praecipe 18 
 
 bail or security, not to become without leave 35, 40 
 
 in disregard of rule will be stricken off 40 
 
 notice to be served on attorney of record 32, 67 
 
 non-resident of district to have resident associate 30 
 
 oath to be taken and subscribed 29 
 
 qualifications for admission 29 
 
 roll of, to be kept 31 
 
 what to contain 31 
 
 to be subscribed by 29 
 
 warrant of, may be required when. ., 33 
 
 judgment how entered on 60 a. 
 
 AUDITORS. 
 
 exceptions to report of, 
 
 ten days' notice of filing report to be given by, to allow of 38 
 
 if not filed before auditor, not to be considered 38 
 
 auditor to re-examine and correct report if well taken 38 
 
 to be returned with report 38 
 
 report to be confirmed nisi, and exceptions filed within 
 
 ten days 38 
 
 if no exceptions returned, report to be confirmed 
 
 finally 38 
 
 distributing proceeds of judicial sale, hearing to be adver- 
 tised three weeks 36 
 
 hearing and notice posted ten days in 
 
 clerk's office 36 
 
 exhibits, how authenticated, before 7 
 
 issue, request for, in case before 37 
 
 facts in dispute to be stated 37 
 
 to be made within two days after hear- 
 ing is concluded. 37 
 
 report on, to be made by auditor 37 
 
INDEX TO MIDDLE DISTRICT RULES. 147 
 
 BAIL. Rule. 
 
 attorneys not to become, without leave 35, 40 
 
 capias ad respond, not to issue without affidavit 39 
 
 nor bail exceeding $1,000 demanded unless specially 
 
 allowed 39 
 
 common, rule for, to be taken within ten days after return 
 
 day 43 
 
 exceptions to, when and how made 42 
 
 marshal not to become bail without leave of court 40 
 
 bail in disregard of this to be stricken off 40 
 
 marshal taking bail to give names and residences to plain- 
 tiff 41 
 
 notice to justify 42 
 
 of giving new bail 42 
 
 BAILIFF. 
 
 not to go bail or security without leave 40 
 
 BILLS. 
 
 execution of, taken as admitted, when i, 2, 3, 4 
 
 BILLS 9F EXCEPTIONS. 
 
 duplicate to be filed for convenience of clerk "j"] 
 
 settlement of 44 
 
 counsel to receive copies five days before. . 46 
 
 to admission or rejection of evidence 45 
 
 to charge of court and answers to points 45 
 
 what to state and contain 46 
 
 BONDS. 
 
 execution of, admitted when i, 3, 4 
 
 BOOK ACCOUNT. 
 
 when taken as admitted, in actions on 2, 3 
 
 in set off or counter claim 4 
 
 BRIEFS. 
 
 to be printed when ; 23 
 
 what to contain 23 
 
 in equity cases 24 
 
 CAPIAS. 
 
 ad respond., not to issue without affidavit 39 
 
 bail exceeding $1,000 to be specially allowed 39 
 
 CAUSE OF ACTION. 
 
 rule to show, and for common bail, when and how taken . . 43 
 
 CHECKS. 
 
 execution of, taken as admitted when I, 3, 4 
 
148 INDEX TO MIDDLE DISTRICT RULES. 
 
 CLERK. . Rule, 
 
 bills of exceptions to be filed in duplicate for convenience of '7^ 
 
 entries in record to be by, with certain exceptions 79 
 
 fees of, to be paid in advance So 
 
 rule on party in default to pay 51 
 
 execution for Si 
 
 judgment of non pros, for non-payment of Si 
 
 where case is prosecuted in forma pauperis 52 
 
 judgment sec. reg., by default to be entered by 60 
 
 for want of affidavit of defence to be 
 
 entered by -< '"^ 
 
 •' I sec 1, 2 
 
 for want of appearance to be entered by 20 
 
 office of, to be at Scranton 81 
 
 deputy clerks at Williamsport and Harrisburg. ... 81 
 
 plea of general issue to be entered by, when 73 
 
 printing record for argument, costs to be estimated by. ... 24 
 
 payment of, how enforced . . 24 
 
 records not to be taken out on subpoena without leave of 
 
 court 78 
 
 retaxation of costs by 49 
 
 appeal from 49 
 
 not to stay collection of costs 49 
 
 to maintain office in charge of self or deputy at Harrisburg. 
 
 Introduction 
 
 COMMISSIONERS. 
 
 tfanscripts of final record to be sent to clerk 46 b. 
 
 warrants sent by, when to be mailed to marshal's office. . 46a. 
 
 COMMITTEE OF LUNATIC. 
 
 when affidavit of defence not required by 13 
 
 COMPULSORY NON-SUIT 
 
 rule to take off to be applied for .within four days 64 
 
 CONDEMNATION PROCEEDINGS. 
 
 application for appointment of viewers, what to set forth. . 47 
 
 map of property to accompany 47 
 
 ten days' notice of, to be given 47 
 
 procedure otherwise, to conform to state practice 47 
 
 CONTINUANCES. 
 
 because of absence of material witness, what required on . . 91 
 
 not to be, by agreement of parties 92 
 
 CORPORATION. 
 
 affidavit of defence made by officer or agent 14 
 
 existence of, when need not be proved 6 
 
INDEX TO MIDDLE DISTRICT RULES. 149 
 
 COSTS. Rule. 
 
 bills of, duly verified to be taxed as filed 49 
 
 retaxation of 49 
 
 exceptions to be specific 49 
 
 not to stay collection of 49 
 clerk to keep record of proceedings 
 
 on 49 
 
 appeal from decision of 49 
 
 clerk's, to be paid in advance 50 
 
 of proving written documents, when imposed 8 
 
 plaintiif, when to pay, when judgment tendered on affidavit 
 
 of defence 15 
 
 printing of record to be taxed as 24 
 
 security for, by attorneys, not to be without leave 35 
 
 when plaintiff required to give 48 
 
 DAMAGES. 
 
 when assessed by clerk on judgment for want of affidavit 
 
 of defence 10 
 
 DECLARATION. 
 
 copy of, to be served fifteen days before return day, when. . 10 
 
 service of, how made and returned 12 
 
 when made by marshal with writ 12 
 
 by any other competent person.... 12 
 where defendant resides out of district, and has 
 
 no attorney of record .• 12 
 
 where defendant's residence is unknown, and no 
 
 attorney of record 12 
 
 to be sworn to except where made by marshal. 12 
 where by registered letter return receipt to be 
 
 filed 12 
 
 to be filed ten days before return day where judgment 
 asked for want of appearance 20 
 
 DEMAND. 
 
 on bond, bill, note, &c., when not necessary to prove.. i, 3, 4 
 
 DEED. 
 
 execution admitted in actions on, when i, 3, 4 
 
 DEMURRER. 
 
 grounds of, to be sp'ecified, whether general or special.... 75 
 
 DEPOSITIONS. 
 
 de bene esse, of .aged witnesses, &c., to be used at trial, how 
 
 taken 54 
 
 dedimus potestatem, or commission tO' take, how obtained 
 
 and executed 55 
 
 exhibits, how authenticated on. 7 
 
 fraudulent attachment, when dissolved on 28 
 
 letters rogatory, how obtained and executed 55 
 
 testimony required on argument, to be taken by 22 
 
 testimony required for hearing of motion, &c., how taken 53 
 
 DISCONTINUANCE. 
 
 may be entered on docket by plaintiff or attorney 79 
 
 DISTRICT COURT. 
 
 always open for motions, Sundays and legal holidays ex- 
 cepted 87 
 
 terms of, to be as fixed by Congress 87 
 
 as now fixed Introduction 
 
150 INDEX TO MIDDLE DISTRICT RULES. 
 
 DRAFTS. Rule, 
 
 execution of, to be taken as admitted, when i, 3, 4 
 
 EASTERN DISTRICT. 
 
 counties of, in Middle District Introduction 
 
 jurisdiction of court and officers, when divested Introduction 
 
 EIECTMENT. 
 
 defendant to appear and plead, when 71 
 
 to file abstract of title, when 71 
 
 EQUITY CASES. 
 
 on argument of, briefs and records to be printed 24 
 
 ERRORS AND APPEALS. 
 
 parties may stipulate as to record 80 
 
 otherwise whole to be certified 80 
 
 EXAMINER. 
 
 exhibits, how authenticated on hearing before 7 
 
 EXCEPTIONS. 
 
 to affidavit of defence as insufficient 17 
 
 to bail, when and how taken 42 
 
 to bills of costs, items to be spfecified 49 
 
 party filing required to maintain 49 
 
 to charge of court must be specific 45 
 
 general exceptions not allowed 45 
 
 must te before jury retires 45 n.(c.) 
 
 to depositions to be taken within ten days 55 
 
 to inquisition on real estate to be filed within five days after 
 
 notice 59 
 
 to marshal's sale of real estate to be filed before acknowl- 
 edgment of deed 62 
 
 to report of auditor, 
 
 auditor to give ten days' notice to allow of 38 
 
 parties to have access to, meantime 38 
 
 exceptions not filed before auditor, not to be con- 
 sidered 38 
 
 auditor to re-examine report in light of 38 
 
 exceptions to be returned with report 38 
 
 report to be confirmed nisi when filed 38 
 
 exceptions to, to be taken within ten days after 38 
 if no exceptions returned, report to be confirmed 
 
 finally 38 
 
 EXECUTIONS. 
 
 exemption, appraisement of, plaintiff to have notice 58 
 
 inquisition on real estate, result of, parties to have notice 
 
 forthwith 59 
 
 not to be stayed without notice to plaintiff 57 
 
 no stay to operate until after levy secured 57 
 
 EXECUTORS. 
 
 when affidavit of defence not required of 13 
 
 EXEMPTION. 
 
 appraisement of, plaintiff to have notice of making 58 
 
 EXHIBITS. 
 
 how authenticated on hearing before auditor 7 
 
 on taking of depositions 7 
 
INDEX TO MIDDLE DISTRICT RULES. 151 
 
 FILES. Rule, 
 
 all papers to be accompanied by copies for use of opposite 
 
 .party 77 
 
 bills of exceptions to be filed in duplicate for use of clerk. . ^^ 
 
 not to be taken from clerk's office 78 
 
 out by clerk on subpoena without leave. . . 78 
 
 FINAL RECORDS. 
 
 to be made, when 82 a. 
 
 FORMA PAUPERIS. 
 
 where suit prosecuted in, rules for security for costs not 
 to apply 52 
 
 GUARDIAN. 
 
 when affidavit of defence not required of 13 
 
 HAND-WRITING. 
 
 of makers, drawers, acceptors, or endorsers, when not 
 necessary to prove i, 3, 4 
 
 HARRISBURG. 
 
 clerk or deputy to have office at Iritroduction 
 
 naturalization court at 63 
 
 provisional records at { Introdu^ction 
 
 suits may be brought and process issued at 82 
 
 suits, when to be tried at \ g- 
 
 iduc 
 
 IGNORAMUS. 
 
 indictment ignored, docketed same as true l)ill 59 a- 
 
 INQUISITION ON REAL ESTATE. 
 
 notice of result to be given by clerk to parties 59 
 
 exceptions to be filed within five days thereafter 59 
 
 ISSUK 
 
 request for, in case before auditor 37 
 
 facts in dispute to be stated 37 
 
 to be made within two days after hearing con- 
 cluded Zl 
 
 report on to be made by auditor 37 
 
 terms of court at | Introduction 
 
152 INDEX TO MIDDLE DISTRICT RULES. 
 
 JUDGMENT. Rule, 
 arrest of, motion for, may be made with motion for new 
 
 trial : 6s 
 
 by default for want of affidavit of defence in assumpsit and 
 
 scire facias lo seci 
 
 for want of appearance in certain actions 20 
 
 sec. reg. may be entered by clerk 60 
 
 • 1 TO SGC2 
 
 for want of affidavit of defence in replevm -j 
 
 for want of appearance against garnishee in 
 
 attachment execution 26 
 
 for want of answer to interrogatories 27 
 
 executions to enforce, given by state laws adopted 56 
 
 non obstante veredicto, motion for to be made within four 
 
 days 64 
 
 non pros, for non-payment of costs Si 
 
 if no declaration filed within a year 69 
 
 for failure to declare on rule 70 
 
 on confession or warrant of attorney, how entered 60 a. 
 
 over ten years old, leave to be 
 
 obtained 60 a. 
 
 over twenty years old, rule to be 
 
 entered 60 a. 
 
 rule for, for want of sufficient affidavit of defence 17 
 
 where tendered for part of claim in affidavit of defence . . 15 
 
 where part of affidavit of defence is insufficient 16 
 
 LETTERS ROGATORY. 
 
 how obtained and executed SS 
 
 LIEN CREDITOR. 
 
 purchase by, at marshal's sale, bid how satisfied and re- 
 turned 61 
 
 LOCAL PREJUDICE. 
 
 removal on ground of, how proceeded with 84 
 
 MARSHAL. 
 
 not to go bail or security without leave 40 
 
 to give notice of name and residence of bail taken 41 
 
 rule on delinquent party to pay costs to Si 
 
 execution for costs in favor of Si 
 
 judgment of non pros, for non-payment of costs to 51 
 
 process to be returned to Scranton, by 82 
 
 United States commissioners to mail all process to 46 a. 
 
 rules as to costs to, not to apply to suit in forma pauperis. 52 
 
 MARSHAL'S SALES. 
 
 audit distributing proceeds of, to be advertised three weeks 36 
 to be posted ten days in clerk's 
 
 office ..;.... 36 
 
 bid, how satisfied where purchaser is lien creditor 61 
 
 special return to be made where purchaser is lien creditor 61 
 
 when resale ordered, where purchaser is Hen creditor 61 
 
 deed for real estate, to be acknowledged when 62 
 
 exceptions to acknowledgment of deed 62 
 
INDEX TO MIDDLE DISTRICT RULES. 153 
 
 MIDDLE DISTRICT. Rule. 
 
 created, when Introduction 
 
 counties . composing Introduction 
 
 courts of, 
 
 opened when and where Introduction 
 
 places where held Introduction 
 
 clerk's and deputy clerk's office { I^^troduction 
 
 records of, where kept { Introdurtion 
 
 records, permanent ) I"troduction 
 
 provisional { ^"trodurtion 
 
 terms of { Introduction 
 
 MORTGAGE. 
 
 execution of, when admitted in action on i, 3, 4 
 
 NATURALIZATION. 
 
 Court at Scranton 63 
 
 at Harrisburg 63 
 
 at Williamsport 63 
 
 Declaration of intention, amendment of 63 b. 
 
 petition for dismissal for non-prosecution when 63 a. 
 
 NEW TRIALS. 
 
 motion for, not to be made after motion in arrest of judg- 
 ment non obstante veredicto 65 
 
 on ground of after discovered evidence 66 
 
 rule for, must be obtained within four days. 64 
 
 settlement of bills of exceptions, on discharge of. 44 
 
 NON-ACCEPTANCE. 
 
 when taken as admitted I, 3, 4 
 
 NON-PAYMENT. 
 
 when need not be proved i, 3, 4 
 
 NON OBSTANTE VEREDICTO. 
 
 motion for judgment to be made within four days 64 
 
 rule for new trial not allowed after 65 
 
 NON PROS. 
 
 judgment for, for non-payment of costs to clerk or mar- 
 shal SI 
 
 where no declaration filed within year 69 
 
 on failure to declare on rule 70 
 
 NON-RESIDENT ATTORNEY. 
 
 to retain resident of district 30 
 
 NON-RESIDENT PLAINTIFF. 
 
 when required to give security for costs 48 
 
 NON-SUIT, COMPULSORY. 
 
 rule to take off to be applied for within four days 64 
 
154 INDEX TO MIDDLE DISTRICT RULES. 
 
 NOTICE. 
 
 execution not to be stayed without _. 57 
 
 of appointment of viewers in condemnation proceedings.. 47 
 
 of appraisement, on claim by defendant of exemption 58 
 
 of name and residence of bail, by marshal 41 
 
 to be in writing, when 67 
 
 to be served on opposite party or attorney of record. .. .32, 67 
 
 to be accompanied by copy of any rule granted 67 
 
 to justify bail 42 
 
 to produce exhibit 7 
 
 to prosecute naturalization petition 63 a. 
 
 NOTICE OF DISHONOR. 
 
 when not necessary to prove i, 3, 4 
 
 PARTNERSHIP. 
 
 when taken as admitted S 
 
 denial of, how and when to be made 5 
 
 PETITION. 
 
 for naturalization, non prossed when 63 a. 
 
 for rule to show cause, facts in, admitted when 9 
 
 partial denial of, effect of 9 
 
 PLEADINGS. 
 
 copies (jf, to be filed for benefit of opposite party TJ 
 
 demurrer, whether general or special, grounds of to be 
 
 specified 75 
 
 dilatory plea to be verified 74 
 
 defendant in ejectment, when to appear and plead 71 
 
 when to file abstract of title 71 
 
 defendant, when to plead in other actions 72 
 
 when in default, clerk to plead general issue.. 73 
 
 rule on plaintiff to declare, how obtained and enforced. ... 70 
 
 set off must be specified on notice 76 
 
 ■ to conform to state law 68 
 
 POINTS FOR CHARGE. 
 
 how to be framed 96 
 
 when to be submitted 96 
 
 PROMISSORY NOTES. 
 
 execution of, taken as admitted when I, 3, 4 
 
 PROTEST. 
 
 when proof of need not be made i, 3, 4 
 
 REAL ESTATE. Rule. 
 
 purchase by lien creditor at marshal's sale, bid how sat- 
 isfied and returned 61 
 
 deed for, acknowledged by marshal when 62 
 
 exceptions to marshal's sale of 62 
 
 RECEIVER. 
 
 accounts of, audit on, to be advertised three weeks 36 
 
 affidavit of defence not required of, when 13 
 
INDEX TO MIDDLE DISTRICT RULES. 155 
 
 RECORDS. Rule. 
 
 entries on, to be made by clerk only 79 
 
 final records, when to be made 82 a. 
 
 in equity cases, to be printed by clerk 24 
 
 expense of, to be first estimated 24 
 
 to be taxed as costs 24 
 
 payment to clerk, how en- 
 forced 24 
 
 not to be taken out of clerk's office 78 
 
 nor produced by clerk on subpoena without leave 78 
 
 old records of Western District at Williamsport and 
 
 Scranton Introduction 
 
 old records of Western District, how proceeded on ... Introduction 
 permanent, to be kept at Scranton | Introduction 
 
 printing of, in equity 24 
 
 provisional or temporary, at Williamsport and f Introduction 
 
 Harrisburg \ 81 
 
 what to be certified on error or appeal 80 
 
 parties may stipulate as to 80 
 
 refer.ee. 
 
 exhibits, how authenticated on hearing before 7 
 
 REMAND. 
 
 motion for, to be made within ten days 85 
 
 REMOVALS. 
 
 transcript of record may be filed forthwith 83 
 
 and interlocutory proceedings had on notice 83 
 
 on grotmd of local prejudice, how proceeded with 84 
 
 remand of, motion for, to be made within ten days 85 
 
 rules pending on, ten days allowed after filing to comply 
 
 with 86 
 
 REPLEVIN. 
 
 affidavit of defence, when required in iosec2 
 
 what to set forth 10 sec2 
 
 REQUESTS. See Points. 
 
 RETAXATION OF COSTS. 
 
 exceptions to be filed to 49 
 
 five days' notice of hearing to be given 49 
 
 RETURN DAYS. 
 
 first day of each term to be 88 
 
 first Monday of August and September made additional. ... 88 
 
 RIGHT TO BEGIN AND CONCLUDE. 
 
 moving party to have, in arguments 23 
 
 party maintaining affirmative to have, at trial 95 
 
 where defendant oflfers no evidence in criminal cases 95 
 
 RULES TO SHOW CAUSE. 
 
 copy of, to be served when 67 
 
 on exceptions to sufficiency of affidavit of defence 17 
 
 pending on removal from state court, ten days allowed to 
 
 comply 86 
 
 petition for, taken as admitted, when 9 
 
 partial denial of 9 
 
 to show cause of action, to be taken within ten days after 
 
 return day ■ 43 
 
 testimony required on argument of, to be taken by deposi- 
 tions 22 
 
156 INDEX TO MIDDLE DISTRICT RULES. 
 
 SATISFACTION. " Rule. 
 
 may be entered on docket by plaintiff or attorney 79 
 
 clerk to attest 79 
 
 SCIRE FACIAS. 
 
 affidavit of defence required in, when lo 
 
 judgment for want of appearance in 20 
 
 SCRANTON. 
 
 clerk's office to be at 8i 
 
 former courts of Western District at Introduction 
 
 records of Introduction 
 
 marshal to return all process to 82 
 
 naturalization courts at 63 
 
 ,.,,.. f Introduction 
 
 permanent records to be kept at ■( g g 
 
 , , . f Introduction 
 
 terms of court at -j g_ jj 
 
 SECURITY. 
 
 attorneys not to become, without leave 35 
 
 non-residents, when required to give, for costs 48 
 
 SET OFF. 
 
 must be specified on notice 76 
 
 writing or book account in, admitted when 4 
 
 SPECIAL APPEARANCE. 
 
 when and how allowed 19 
 
 SPECIAL MATTER. 
 
 when to be specified, on general plea with leave to give. . 76 
 
 STATEMENT. See Affidavit of Defence, Judgment, 
 Declaration, Pisadings. 
 
 STAY OF EXECUTION. 
 
 notice of application for 57 
 
 not to become operative till levy made 57 
 
 TAXATION OF COSTS. 
 
 bill of costs to be taxed as filed 49 
 
 retaxation on exceptions, when and how made 49 
 
 appeal from retaxation of by clerk 49 
 
 TERMS OF COURT. 
 
 to be as fixed by Congr.ess 87 
 
 „„ „, c„„j / Introduction 
 
 as now tixed i g_ 
 
 TRESPASS. 
 
 judgment for want of appearance in 20 
 
 TRIALS AND TRIAL LIST. 
 
 cases to be tried at places nearest defendant's residence.. 89 
 continuances because of absence of material witnesses, how 
 
 obtained 91 
 
 examination of witnesses, how conducted 93 
 
 Harrisburg, trial at, when required Introduction 
 
 offers of evidence, when required 94 
 
 party having affirmative to begin and conclude 95 
 
 points for charge, how framed 96 
 
 when to be submitted 96 
 
 trial list, to be made up thirty days before term 90 
 
 other cases may be added, when go 
 
INDEX TO MIDDLE DISTRICT RULES. 157 
 
 TRUSTEE. Rule. 
 
 affidavit of defence, when not required of 13 
 
 audit of accounts of, to be advertised three weeks , . 36 
 
 UNITED STATES COMMISSIONERS. 
 
 all process issued by, to be mailed to marshal 46 a. 
 
 except in certain cas«s 46 a. 
 
 occasion_ for exception to be noted on docket 46 a. 
 
 transcript with original papers to be sent to clerk on ter- 
 mination of case before 46 b. 
 
 WARRANT OF ATTORNEY. 
 
 judgment on, how entered 60 a. 
 
 where warrant is over ten years old 60 a. 
 
 where warrant is over twenty years old... 60 a. 
 
 when required to be filed 33 
 
 WESTERN DISTRICT. 
 
 counties of, in Middle District Introduction 
 
 former courts of, 
 
 at Scranton Introduction 
 
 records of Introduction 
 
 proceedings on Introduction 
 
 at Williamsport, records of... Introduction 
 
 jurisdiction of courts and officers of, when divested. . . .Introduction 
 
 WILLIAMSPORT. 
 
 former courts of Western District at Introduction 
 
 records of Introduction 
 
 deputy clerk at 81 
 
 naturalization court at 63 
 
 provisional records at { Introdurtion 
 
 suits may be begun and process issued at i " ™ gi'^ "*'* 
 
 . r _, ^ f Introduction 
 
 terms of court at j 87 n 
 
 when cases to be tried at 89 
 
 WITNESSES. 
 
 examination of, how conducted 93 
 
 offers of proposed proof by, when to be made 94 
 
 WRITINGS FOR PAYMENT OF MONEY. 
 
 execution of, to be taken as admitted when i, 3, 4 
 
 WRITTEN DOCUMENTS. 
 
 admission of execution, when and how required 8 
 
 not to extend to relevancy of.... 8 
 
 WRITS. 
 
 to bear teste the day issued 88 
 
 to be returnable first day of next term 88 
 
 provided ten days intervene 88 
 
 first Monday of August and September made additional 
 
 return days for 88 
 
BANKRUPTCY RULES 
 
 OP T1£E 
 
 District Court of the United States 
 
 FOR THE 
 
 Middle District ot Pennsylvania 
 With Notes 
 
 Rule I. Accounts of receivers shall be filed with the 
 clerk, and shall be confirmed nisi when filed, and notice in 
 writing shall forthwith be mailed by the clerk to all creditors 
 at their respective addresses, that, unless excepted to within 
 ten days, they will be confirmed finally. If exceptions are 
 filed, they shall be heard and disposed of by the Court, or may 
 be referred to the referee to take the evidence and make report 
 thereon, or, the Court, without any formal exceptions, may 
 revise and correct such accounts if deemed necessary. If no 
 exceptions are filed within the time specified, or there is no 
 ground for correcting such accounts, they shall be confirmed 
 finally. 
 
 Rule 2. Accounts of trustees, whether excepted to or 
 not, after having been finally disposed of by the referee, shall 
 be forwarded to the clerk for examination and final confirma- 
 tion by the Court. 
 
R 3-4 BANKRUPTCY RULES. 160 
 
 APPRAISEMENTS (a). 
 
 Rule 3. Where an appraisement has been made at the 
 instance of a receiver, there shall be no other or further ap- 
 praisement by the trustee, except on motion and order of 
 Court, for cause shown (b). 
 
 (a) An appraisement should be general rather than special, only 
 such particularity being indulged in as will be sufficient to reasonably 
 identify the property, in character and quantity, and give a fair idea 
 of its value. It is not to descend to the mi'nutias of a merchant tak- 
 ing stock. In re Gordon Supply Co., 13 A. B. R., 352. 133 Fed., 798. 
 The purpose of an appraisement is simply to get a general idea of 
 the extent of the estate, so as to charge the party in whose custody 
 it is with its value, and enable all concerned the better to keep 
 track of it. Incidentally it may serve as a guide to bidders, but it 
 is not to be undertaken with that in view. In re Kyte, 19 A. B. R., 
 768, 158 Fed., 121. On a sale of the property, it is not necessarily a 
 measure of adequacy. In re Zehner, 27 A. B. R., 536. 193 Fed., 787. A 
 per diem fee of five dollars ($5.00) is all that will be allowed to apprais- 
 ers in this district, and it must be an extraordinary case where over 
 two or three days are required. If there is occasion for anything 
 more than this, the trustee must justify it. In re Fidler, 23 A. B. 
 R., 16. 172 Fed., 632. It is against public policy that an appraiser 
 should buy the property appraised. In re Frazin & Oppenheim, 24 
 A. B. R., 598. 174 Fed., 713. 
 
 (b) There is no warrant for a second appraisement simply be- 
 cause the trustee thought the figures of the first were too low. In 
 re Kyte, 19 A. B. R., 768. 158 Fed., 121. 
 
 ATTORNEYS. 
 
 Rule 4. The attorney for the petitioning creditors shall 
 be deemed to be the attorney for .the estate until a trustee 
 is appointed and qualified. Upon the qualification of the trus- 
 tee, he shall have the right, with the approval of the referee, 
 to make a new selection. 
 
 Services rendered for petitioning creditors are not to be confused 
 with those for the estate, nor be made the subject of a claim against 
 the trustee. In re Oppenheimer, 17 A. B. R., 59. 146 Fed., 140. In 
 re Hill Co., 20 A. B. R., 73. 159 Fed., 73. 
 
 Counsel are not debarred from acting for the trustee because of 
 having acted for the bankrupt. In re Dimm, 17 A. B. R., 119. 146 
 Fed., 402. But in most cases it is not best. In re Strobel, 20 A. B. 
 R., 22. 160 Fed., 916. 
 
 Ordinarily the dvities of a receiver do not justify the employment 
 of an attorney. In re Hill Co., 20 A. B. R., 73. 159 Fed., 73. But 
 there may be- occasions where he is entitled to assistance, in which 
 case a suitable allowance will be made. In re Oppenheimer, 17 A. B. 
 R., 59. 146 Fed., 140. 
 
 There is no direct provision in the Bankruptcy Act for payment 
 of attorneys employed by the trustee. It only comes in as a part of 
 
161 BANKRUPTCY RULES. R 5-6 
 
 the administration expenses. In re Stotts, I A B. R. 641. In re 
 Byerly, 12 A. B. R., 186. 128 Fed., 637. 
 
 Attorney fees are only allowable where the attorney has acted 
 directly for the estate and it has been benefited thereby. In re Ket- 
 terer Mfg. Co., 19 A. B. R., 646. 155 Fed., 987. 
 
 Rule 5. An attorney fee of fifty dollars ($50.00) shall 
 be allowed to the petitioning creditors (a) in involuntary 
 cases; and to the bankrupt in voluntary cases (b) ; and the 
 same amount to the bankrupt in involuntary cases, for the 
 assistance of counsel in performing the duties required by the 
 statute (c). No other or further fee shall be allowed in 
 either instance, except by order of the court or referee for 
 cause shown (d). 
 
 (a) Creditors are not to be allowed attorney fees for the ser- 
 vices of counsel in contesting improper claims, setting aside asserted 
 priorities, or securing the appointment of a suitable trustee. In re 
 Medina Quarry Co., 191 Fed., 815. 27 Amer. Bank. Rep., 466. 
 
 (6) The allowance of an attorney fee to a voluntary bankrupt 
 is intended to cover the preparation of the petition and schedules and 
 the petition for a discharge. Matter of Hitchcock, 17 A. B. R., 664. 
 
 (c) And to an involuntary bankrupt, for professional services 
 rendered to the bankrupt in performing the duties enjoined upon him 
 by the act. In re Woodard, 2 A. B. R., 692. 95 Fed., 955. In re 
 Payne, 18 A. B. R., 192. 151 Fed., 1,018. 
 
 (d) But clerical work in posting the bankrupt's books prepara- 
 tory to making up his schedules is not included. In re Connell & 
 Sons, 9 A. B. R., 474. 120 Fed., 846. Nor attendance at hearings 
 before the referee with respect to the allowance of claims. Ohio 
 Valley Bank v. Mack, 20 A. B. R., 919. 163 Fed., 155. Nor services 
 in obtaining a discharge. In re Brundin, 7 A. B. R., 296. 112 Fed., 
 306. Or endeavoring to establish his exemption claim. In re Castle- 
 berry, 16 A. B. R., 430. 143 Fed., 1,018. In re O'Hara, 21 A. B. 
 R., 508. 166 Fed., 384. Nor services or disbursements upon a con- 
 tested composition. In re Fogarty, 26 A. B. R., 568. 187 Fed., 773. 
 And much less, services in resisting the trustee's efforts to recover 
 goods concealed. In re Felson, 15 A. B. R., 185. 139 Fed., 275. 
 
 Rule 6. Where no trustee is appointed, the fee of five 
 dollars ($5.00) deposited with the clerk at the time the peti- 
 tion was filed, for the benefit of the trustee, shall be returned 
 to the attorney who filed the petition, upon a certificate from 
 the referee that the case has been closed. 
 
R 7 BANKRUPTCY RULES. 162 
 
 COMPOSITIONS. 
 
 Rule 7. Where a composition is offered [after adjudica- 
 tion] (a) and application is made for the confirmation of the 
 same (b), the bankrupt shall file with such application the 
 acceptance in writing of a majority in number and amount 
 of his creditors^ together with a certified check or draft for 
 the money necessary to carry out the composition, including 
 the payment of costs and the percentage due to the clerk for 
 receiving and disbursing the money. And thereupon a rule 
 shall be entered upon the creditors to show cause against the 
 composition, returnable before the referee in charge of the 
 case, on a day fixed, not less than ten days (c) thereafter, of 
 which notice shall forthwith be given, by the referee, by mail 
 to all creditors (d), and by publication in the newspaper desig- 
 nated by the Court for the county in which the case arose 
 at least one week prior to the day fixed for the hearing. And 
 if no appearance in opposition thereto is entered at that time 
 (£•), and it be found that a majority of creditors in number 
 and amount have agreed to it, the composition shall be con- 
 firmed finally; and the referee shall make report thereof, and 
 therewith exhibit a list of the creditors with their addresses, 
 and the amounts respectively due to each upon the composi- 
 tion ; for which the clerk shall forthwith draw checks and mail 
 them to such creditors as have proved their claims, retaining 
 one per cent, of the amount so received and paid out. 
 
 But if the composition is opposed, the creditor or creditors 
 objecting thereto shall file with the referee a specification (/) 
 of his or their objections within ten days after appearing, 
 unless the time is enlarged by the Court for cause shown. 
 And such objections shall thereupon be certified to the Court, 
 to be disposed of according to law- (g). 
 
 (a) By act of June 25, 1910, Sec, 5, 36 Stat., 839, a composition ma> 
 be offered either before or after adjudication. Previous to this, it 
 could only be offered afterwards. Bankruptcy Act, Sec. 12 a. For 
 compositions before adjudication, see next rule. 
 
 (6) Application for the approval of a composition must be heard 
 and decided by the Judge and not by the referee. Gen'l Order XII, 
 3. In re Bloodworth-Stembridge Co., 24 A. B. R., 156. 178 Fed., 372. 
 But the Court may refer the case to the referee as special master to 
 hear and make report thereon. In re McDuff, 4 A. B. R., no. loi 
 Fed., 241. In re Rauchenplat, 9 A. B. R., 763. 
 
 (c) Ten days' notice to creditors is imperative. Bankruptcy Act, 
 Sec. 58, a (2). 
 
163 BANKRUPTCY RULES. R 7a 
 
 (d) Claims which have not been proved within a year after adjudi- 
 cation have no standiVig in composition proceedings, and the bankrupt 
 has the right to appear in opposition to such claims. In re French, 25 
 A. B. R., 77. 181 Fed., 583. Cf. In re Wilkens, 191 Fed., 94. Nor is an 
 unschedule claim, not filed until after the notices to creditors have gone 
 out, entitled to come in. on the composition fimd with other creditors, 
 even though such creditor has the right to hold up the proceedings until 
 a new deposit for his benefit is made. In re Ennis & Stoppani, 25 A. B. 
 R., 383. And this is true even where the claim appears in the schedules, 
 and the deposit made by the bankrupt is sufficient to cover it. In re 
 Blond, 188 Fed., 452. 
 
 (e) A creditor, if he desires to oppose a composition, must enter 
 his appearance on the day when parties are required to appear, and 
 file a specification of his objections within ten days afterwards, unless 
 the time is specially enlarged. Gen'l Order, XXXII. This order is 
 mandatory, and must be strictly observed. In re Grant, 14 A. B. R., 
 398. 135 Fed., 889. 
 
 (/) The specifications should have the same particularity as those 
 required in opposition to a discharge. City National Bank v. Doolittle, 
 5 A. B. R., 736. 107 Fed., 236. Alder v. Jones, 6 A. B. R., 245. 109 
 Fed., 967. 
 
 (g) The approval of a composition by a majority of creditors is 
 prima facie proof that the offer is adequate. In re Hoxie, 25 A. B. R., 
 32. 180 Fed., S08. 
 
 Rule 7 a. Where a bankrupt offers terms of composition 
 before adjudication, tlie offer, unless otherwise ordered, shall 
 forthwith be referred to the referee in whose district it arises, 
 who shall call a meeting of creditors for the allowance of 
 claims, examination of the bankrupt, and preservation or con- 
 duct of the estate, at which meeting the referee shall preside ; 
 and if the terms of the composition shall be accepted by a 
 majority in number and amount of the creditors whose claims 
 are filed and allowed at such meeting, an application for the 
 confirmation of the composition may forthwith be filed with 
 the referee, and upon the delivery to the referee of a certi- 
 fied check, drawn to the order of the clerk of the Court, for 
 the amount necessary to carry out the composition, includ- 
 ing the payment of costs, and the percentage due to the clerk 
 for receiving and disbursing the money, a rule shall be entered 
 upon creditors to show cause against the composition, return- 
 able before the referee, of which due notice shall be given, 
 and the composition be proceeded with, the same as in other 
 cases. 
 
R 8 BANKRUPTCY RULES. 1(J4 
 
 DISCHARGE. 
 
 Rule 8. Applications for a discharge (a) shall be by 
 petition in the prescribed form, and shall be signed with the 
 full name of the petitioner, and be accompanied by a certifi- 
 cate from the referee that the bankrupt has been examined by 
 his creditors, or has duly submitted himself for examination; 
 and also by a certified list of the creditors who have proved 
 their claims, or that no claims have been proved, where that 
 is the case. And the Court (b) shall thereupon enter an order, 
 fixing the time at which creditors and others interested shall 
 appear and show cause against the discharge, of which the 
 clerk shall forthwith give notice by publication in the news- 
 paper of the district designated for the purpose, and by mail- 
 ing notice of the petition and order to all known creditors 
 (c). If no appearance in opposition thereto be entered at the 
 time fixed (d), the discharge shall be granted, or, if the dis- 
 charge is opposed, the party objecting (e) thereto shall specify 
 and file the grounds of his objection (/), which shall be certi- 
 fied to the referee, as special master to take the testimony 
 and make report (g). 
 
 (a) Gen'l Order XII, 3, with regard to applications for discharge, 
 is mandatory and must be strictly complied with. In re Albrecht, 5 
 A. B. R., 223, 104 Fed., 974. An application for a discharge must be 
 filed with the clerk, and not with the referee. In re Taylor, 26 A. B. 
 R., 143. 188 Fed., 479. 
 
 (6') The Court and not the referee must fix the time for the hear- 
 ing. In re Johnson, 19 A. B. R., 814. 158 Fed., 342. A referee has 
 no jurisdiction to hear an application for a discharge except as it is 
 referred to him specially. In re Taylor, 26 A. B. R., 143. 188 Fed., 
 479- 
 
 (c) Before incurring the expense of sending out notices, the clerk 
 may require the bankrupt to indemnify him. Gen'l Order X. But money 
 advanced for this purpose must be repaid to the bankrupt out of the 
 estate as part of the administration expenses. In re Hatcher, 16 A. B. 
 R., 722. 145 Fed., 658. Fees to the bankrupt's attorney for obtaining 
 his discharge should not be charged against objecting creditors, even 
 though they may be allowable out of the estate of the bankrupt. In 
 re Gillardon, 26 A. B. R., 103. 187 Fed., 289. The costs incurred in 
 opposing the discharge of a bankrupt, even where the discharge is re- 
 fused will not be taxed against the estate. In re Kyte, 26 A. B. R., 
 507. 189 Fed., S31- A creditor may prosecute objections in forma paur 
 peris. In re Guilbert, 18 A. B. R., 830. 154 Fed., 676. 
 
 (d) As to the manner in which objections to a discharge should 
 proceed, see In re Daugherty, 26 A. B. R., 550. 189 Fed., 239. An 
 appearance must be entered on or before the day when creditors are 
 required to show cause, and a failure to do so precludes them from ap- 
 pearing and filing objections afterwards. In re Ginsburg, 12 A. B. R., 
 459. 130 Fed., 627. In re Grant, 14 A. B. R., 398. 135 Fed., 889. But 
 
165 BANKRUPTCY RULES. R 9 
 
 they have the entire day, and are not barred by failure to appear at a 
 certain hour. In re Barrager, 27 A. B. R., 366. 191 Fed., 247. And 
 the filing of objections before the return day is equivalent to an appear- 
 ance. Groom v. Mortimer, Land Co., 192 Fed., 849. Unless the time 
 is enlarged by the court the objections to the discharge must be filed 
 within ten days thereafter. In re Albrecht, 5 A. B. R., 223. 104 Fed., 
 974. Nor can new grounds of objection be brought in after the ten 
 days have expired. In re Johnson, 192, Fed., 356. 27 A. B. R., 644. It will 
 be presumed on appeal that an appearance was duly entered within the 
 ten days where no objection was made on that ground in the Court below. 
 Shaffer v. Koblegard Co., 2^ A. B. R., 898. 183 Fed., 71. 
 
 (e) If so authorized by creditors, the trustee may file objections. 
 Act May 25, 1910, Sect. 6, 36 Stat., 838. Cf. In re Levey, 13 A. B. R., 
 312. 133 Fed., S72. 
 
 (f) An objection based on the alleged fraudulent failure to keep 
 books is sufficient if framed in the words of the act. In re Magen 
 Bros., 192 Fed., 883. 27 A. B. R., 729. 
 
 (g) The court may avail itself of the services of a master. In re 
 Gillardon, 26 A. B. R., 103. 187 Fed., 289. The evidence in opposition 
 to a discharge must be convincing, but does not need to be so beyond 
 a reasonable doubt. Garry v. Jefjerson Bank, 26 A. B. R., sn- 186 
 Fed., 461. The concealment of assets, as an objection to a discharge, 
 must be clearly proved. In re Taylor, 26 A. B. R., 143. 188 Fed., 479. 
 
 Rule 9. When no application for a discharge has been 
 made within a year (a) after the adjudication, the bankrupt, 
 in order to get an extension, shall set forth by petition the 
 reason why application was not sooner made, and if sufficient 
 appears prima facie to excuse the delay the petition shall be 
 set down for a hearing (b), not less than ten days thereafter, 
 of which notice (c) by mail shall be forthwith given by the 
 clerk to all creditors, who shall be required to appear and 
 show cause, at the time fixed, if they desire to oppose the' 
 same. And if no such cause is shovvn (d), the bankrupt shall 
 be allowed to make application within such further time as 
 may be fixed by the Court, which application shall be by peti- 
 tion in the ordinary form, and be proceeded with as if made 
 at the regular time. 
 
 (a) When no application is made within a year and six months 
 after the adjudication, the Court has no jurisdiction afterwards to grant 
 a discharge. In re Wagner, 15 A. B. R., 100. 139 Fed., 87. 
 
 (6) The bankrupt must sustain his petition at the hearing with satis- 
 factory evidence or it will be dismissed. In re Glickman, 21 A. B. R., 
 171. 164 Fed., 209. And he must show that he was unavoidably pre- 
 vented from applying for a discharge for the whole period, during 
 which the application should have been made. In re Harris & Algor, 
 IS A. B. R., 705. 
 
 (c) Notice to creditors of an application by the bankrupt for an 
 extension of time within which to petition for a discharge is held to 
 be unnecessary in some jurisdictions. In re Fritz, 23 A. B. R., 84. 173 
 Fed., 560. But the practice has been different in this district and is 
 now estalslished by the present rule. 
 
R I0-II-I2 BANKRUPTCY RULES. 166 
 
 (rf) Where notice has been given and an opportunity had to show 
 cause against the extension asked for, creditors will be confined there- 
 after to the statutory objections, and cannot reopen the question of the 
 right to an extension. In re Haynes & Sohs, lo A. B. R., 13. 122 Fed., 
 560. If the extension was granted for insufficient reasons, the remedy 
 is to move to vacate it. Ibid. 
 
 Rule 10. Upon the granting of a discharge in any case, 
 the clerk shall issue to the bankrupt, in evidence thereof, a 
 certified copy of the order, under the hand and seal of the 
 Court, for which he shall be entitled "to receive a fee of one 
 dollar ($1.00). 
 
 Bank. Act, Sect. 21 f. Official Form No. 59. 
 
 DISMISSAL OF PROCEEDINGS. 
 
 Rule II. Upon application being made to dismiss the 
 proceedings, for cause shown, a time shall be fixed for hearing 
 the same not less than ten days thereafter, of which due notice 
 (a) by mail shall forthwith be given by the clerk to all 
 creditors, according to the list, with their addresses, furnished 
 under oath by the bankrupt. And a similar notice shall be 
 given before any petition is dismissed for want of prosecu- 
 tion or by consent of the parties. 
 
 (o) Notice to creditors of the proposed dismissal of proceedings 
 is enjoined by the amendment of 1910. Act June 25, 1910, Sects, gyi 
 and 10. 36 Stat., 841. Before this the decisions were conflicting, notice 
 being held necessary in In re Plymouth Cordage Co., 13 A. B. R., 665 ; 
 135 Fed., 1000; and not necessary, where there was no suggestion of 
 collusion, in In re Levi, 15 A. B. R., 294. 142 Fed., 962. 
 
 EXEMPTIONS (a). 
 
 Rule 12. Where the sale of the goods of a bankrupt by 
 a receiver or the marshal has been ordered before the bank- 
 rupt has had opportunity to claim or have set off to him the 
 exemption allowed by law, he may petition the Court to have 
 such goods as he desires to so claim set aside (b) and not sold 
 (c), to await the establishment of his right,, by virtue of his 
 exemption, thereto. 
 
 (a) The Bankruptcy Court is expressly vested with jurisdiction to 
 determine all claims of bankrupts to their exemptions, and may itself 
 set them off where no trustee has been appointed. Smalley v. Lange- 
 nour, ig6 U. S., 93, 97. Exemptions depend for their allowance on the 
 state law, but the manner of claiming them, and the proceedings to set 
 them apart is regulated by the bankruptcy act. In re Gerber, 26 A. B. 
 R., 608. 186 Fed., 693. The rules and forms prescribed by the Supreme 
 
1G7 BANKRUPTCY RULES. R 13-14-15 
 
 Court have the force and effect of law. And when therefore the bank- 
 rupt has failed to claim his exemption in the manner and at the time 
 prescribed by Gen'l Orders XVII and XXXVIII, and Form 47, the right 
 to it is waived. Ibid. 
 
 (&) On petition of the bankrupt, the Court will direct a receiver 
 to set aside specific property which the bankrupt wishes to exempt to 
 await the result of his exemption claim. In re Joyce, ii A. B. R., 716. 
 And the delivery of the property to the bankrupt may be directed on 
 his giving security for its return in the event that his claim is not sus- 
 tained. In re Shaffer & Son, 11 A. B. R., 717. 
 
 (c) Where goods of the bankrupt have been sold by a receiver 
 before he has had time to make claim to specific articles, he is entitled 
 to his exemption out of the proceeds of the sale. In re LeVay, 11 
 A. B. R., 114. 125 Fed., 990. In re Stein, 12 A. B. R., 384. 130 Fed., 
 ^^^ -, affirmed 14 A. B. R., 30. 134 Fed., 235. In re Sloan, 14 A. B. R., 
 435- 13s Fed., 873. In re Renda, 17 A. B. R., 521. 149 Fed., 614. 
 Where, by arrangement, goods, including those claimed by the bank- 
 rupt as exempt, are sold, and fail to realize the appraised value, the 
 bankrupt is only entitled to a proportionate part of the proceeds. In 
 re Arnold, 22 A. B. R., 392. 169 Fed., 1000. 
 
 Rule 13. Where an order has been entered dispensing 
 with a trustee, the bankrupt, having made due claim to the 
 exemption allowed him by law, may petition the Court to have 
 the same set off to him (a), of which, notice shall be forth- 
 with given by the clerk by mail to all creditors, who shall be 
 required to appear and show cause against the same on a day 
 fixed, not less than ten days thereafter. 
 
 (a) Smalley v. Langenour, ig6 U. S., 93, 97. General Order XV. 
 
 FEES AND COSTS. 
 
 Rule 14. Where the clerk is directed by these rules to 
 give notice by mail to creditors, he shall be entitled to five 
 dollars ($5.00) for the first twenty notices, and ten cents 
 (loc.) for each notice above that number, to be paid out of 
 the estate, or by the party liable therefor (a). 
 
 (a)) The clerk having to account for his fees to the Government, 
 whether collected or not, is entitled to demand them in advance. 
 Steever v. Rickman, 109 U. S., 74. Bean v. Patterson, no U. S., 401. 
 Cavender v. Cavender, 10 Fed., 829. Hoysradt v. D, L. & W. Rail- 
 road, 182 Fed., 880. 
 
 Rule 15. The cost of advertising an application for a 
 discharge in all cases shall be $4.00, which shall be paid to the 
 clerk at the time of filing such application (a), and shall 
 cover the expense of the advertisement, the proof of publi- 
 cation, and all matters connected therewith. 
 
R 15 a-16 BANKRUPTCY RULES. 168 
 
 (a) Before incurring thg expense of sending out notices of an 
 application for a discharge, the clerk may require the bankrupt to in- 
 demnify him. Gen'l. Order X. But money so advanced by the bank- 
 rupt must be repaid to him out of the estate, as part of the expense of 
 administration. In re Hatclier, l6 A. B. R., 722. 145 Fed., 658. 
 
 Rule 15 a. The clerk shall be entitled to the following 
 fees not provided for by the statute (a). 
 For each order, appointing a receiver, and making a 
 
 certified copy thereof $1.00 
 
 For each injunction or restraining order issued i.oo 
 
 For certificates to bankrupts of their discharge, each (b) i.oo 
 For a certified copy of each order for the sale of real 
 
 estate, each folio of 100 words i.oo 
 
 For sending notices to creditors of an application by a 
 
 bankrupt for his discharge (c), for the first twenty 
 
 notices 5.00 
 
 For each notice in excess of twenty, an additional 10 
 
 (a) See Gen'l Order XXXV. 
 (6) See Rule 8 supra. 
 (c) See note to Rule 15. 
 
 Rule 16. Where a petition in voluntary bankruptcy is 
 accompanied by an affidavit, that the petitioner is virithout and 
 cannot obtain (a) the money with which to pay the filing 
 fees, the petition shall be filed without requiring payment of 
 the same. But if the clerk, referee, or trustee, has reason to 
 believe that the affidavit is untrue (b), he may petition and 
 obtain an order for the examination of the bankrupt; and if 
 it is made to appear that the bankrupt has or can obtain the 
 money to pay such fees, he shall be ordered to pay the same 
 within a specified time, or otherwise the petition will be dis- 
 missed. 
 
 (0) Money in hand, such as that from a pension, otherwise ex- 
 empt, may be subjected to the payment of the fees prescribed by the 
 statute. In re Bean, 4 A. B. R., S3. 100 Fed., 262. Nor can a vol- 
 untary bankrupt retain his exemption without paying the costs of 
 the proceedings, notwithstanding an affidavit of poverty. In re Hines, 
 9 A. B. R., 27. 117 Fed., 790. ^.In re Mason, 25 A. B. R., 73. 181 
 Fed., 899. Contra. Sailers v. Bell, 2 A. B. R., 529. 94 Fed., 801. 
 Much more, if he consents, can the costs be paid out of his exemp- 
 tion. In re Castleberry, 16 A. B. R., 430. 143 Fed., 1,018. 
 
 (&) A bankrupt's affidavit of inability is not conclusive, and 
 where doubt is cast upon it the question may be properly sent to the 
 referee to investigate and report. In re Collier, i A. B. R., 182. 93 
 Fed., 191. Anon, 2 A. B. R., 527. 
 
 See also Gen'l Order XXXV, 4. 
 
l«y BANKRUPTCY RULES. R 17-18 
 
 INJUNCTIONS. 
 
 Rule 17. Applications for the stay of legal process or 
 proceedings shall be made to the Court (a), except where the 
 necessity is urgent, and the judge is absent from the district, 
 or not reasonably accessible (b), in which case, they may be 
 made to the referee in whose district the case arises, on 
 certificate from the clerk to that effect. But where an in- 
 junction has been issued or a stay ordered by the referee, 
 the Court may be moved, at any time within ten days there- 
 after, to have the same vacated. 
 
 (a) By Genl. Order XII, 3, applications for an injunction to stay 
 the proceedings of a court, or of a United States or State Officer 
 must be heard and decided by the Judge and not by the referee, ex- 
 cept as he refers the application or any special issue to such referee 
 to_ take and report the facts. It is strongly implied by the terms of 
 this order that a referee has authority to issue an injunction for 
 other purposes, and against other parties than those prohibited. In 
 re Steuer, 5 A. B. R., 209, 214. 104 Fed., 976. In re Berkowitz, 16 
 A. B. R., 251. 143 Fed., 598. And where on an application for an 
 injunction the parties submit to his jurisdiction, inasmuch as the 
 Court might have referred the matter to him in the first instance, 
 they will be held to their submission. In re Benjamin, 15 A. B. R., 
 351. 140 Fed., 320. So the petition for the stay of a sale may, by 
 agreement, be heard and disposed of by the referee. In re Berko- 
 witz, 22 A. B. R., 233. 173 Fed., 1,012. But where the rules of the t 
 district negative the power of the referee to issue an injunction, he 
 is without jurisdiction. In re Siebert, 13 A. B. R., 348. 133 Fed., 
 781. 
 
 (&) By Section 38 (a) 3, of the Bankruptcy Act the referee is 
 expressly authorized to exercise the powers of the Judge as to taking 
 possession of and releasing the property of the bankrupt, on certifi- 
 cate from the clerk, showing the absence or sickness of the Judge, 
 or his inability to act. 
 
 NOTICES. 
 
 Rule 18. All notices required by these rules to be given 
 to creditors or parties interested, except as otherwise pro- 
 vided, shall be given by the clerk (a), by writing, mailed to 
 their last known place of address. 
 
 (o) For fees of clerk for sending notices, see Rule 15 a, supra. 
 
R 19-20-21 BANKRUPTCY. RULES. 170 
 
 RECEIVERS. 
 
 Rule 19. Applications for the appointment of a receiver 
 or for a warrant to the marshal to take possession of the 
 property of the bankrupt shall be made to the court, except 
 where the, necessity is urgent^, and the Judge is absent from 
 the district, or not reasonably accessible, in which case they 
 may be made to the referee, in whose district the case arises, 
 on certificate from the clerk to that effect (a). 
 
 (a) This is the same prrovision, as that with regard to injunc- 
 tions, found in Rule 17. 
 
 Rule 20. Except where notice would defeat the object to 
 be attained, no receiver shall be appointed, nor any warrant 
 to the marshal to take possession of the property of the 
 bankrupt be issued, before adjudication, without notice (a) 
 in writing to the alleged bankrupt of the time and place, when 
 and where application therefor will be made, and a reasonable 
 opportunity to be present and be heard thereon, due. proof of 
 which notice shall be made under oath. 
 
 (a) A receiver ought not to be appointed before an adjudication, 
 without notice to the bankrupt; but may be, where notice would 
 defeat the object of the appointment. In re Francis, 14 A. B. R., 
 676, 136 Fed., 912, affirmed sub nom. Latimer v. McNeal, 16 A. B. 
 R., 43. 142 Fed., 451. 
 
 PETITION OF REVIEW. 
 
 See Referee. 
 RECLAMATION PROCEEDINGS. 
 
 Rule 21. A petition for the reclamation of property in 
 the hands of a receiver or trustee shall be made to the Court, 
 and shall describe the property, and state the nature of the 
 petitioner's ownership, and how the property came into the 
 possession or control of the bankrupt ; which petition shall be 
 heard by the Court, after notice to the receiver or trustee, and 
 answer made thereto; or may be referred to a special master, 
 to hear and make report thereon (a). 
 
 (a) In re Tracy, 24 A. B. R., 539. 179 Fed., 366. 
 
171 BANKRUPTCY RULES. R 22-23-24-25-26 
 
 KEFEREES. 
 
 Rule 22. Referees shall transmit to the clerk the bonds 
 of trustees as soon as they are filed ; but shall retain all other 
 papers and records until the cases are severally closed, when 
 they shall transmit the same to the clerk with certificates to 
 that efifect. 
 
 Rule 23. Referees shall transmit to the clerk a list of 
 the claims which have been proved against the estate, with the 
 names and addresses of the creditors who have proved the 
 same, after all claims have been presented that they have 
 reason to believe will be. They are not required to transmit 
 a separate statement of each proof of debt as it is made. 
 
 Cf. Gen'l Order XXIV. 
 
 Rule 24. Referees shall not be required in their monthly 
 returns of expenses to make separate statements in each case, 
 but only a general statement of their expenses in all cases 
 collectively, since the last monthly statement was made. 
 
 Rule 25. In the event of the resignation or removal of 
 a referee, the fee of fifteen dollars ($15.00) required to be 
 deposited with the clerk, for the benefit of the referee, at the 
 time the petition is filed, shall be paid to the referee to whom 
 the case was originally sent, without regard to whether or not 
 the case was closed by him or by his successor. But, in case 
 of the death of a referee, such fee shall be paid to the referee 
 by whom the case is closed. 
 
 Rule 26. A petition for the review (a) by the Court of 
 an order of a referee shall be in the prescribed form (&), and 
 be filed with the referee (c) within ten days (d) after such 
 order was made, or, otherwise (e), will not be entertained. 
 
 (a) By Gen'l Order XXVII, a petition for the review of an or- 
 der of the referee must be filed with the referee and must set out 
 the order complained of, upon which the referee shall certify to the 
 Court the question presented, a summary of the evidence, and the 
 finding and order made. 
 
 (b) For form of petition see Collier (8th Ed.), 1053. Form No. 
 162. 
 
 (c) A mistake in filing the petition with the clerk instead of the 
 referee may be corrected, even though the time for filing has expired. 
 In re Nippon Trading Co., 25 A. B. R., 695. 182 Fed., 959. 
 
 (d) • Such a petition must be filed within a reasonable time. 
 Crim V. Woodford, 14 A. B. R., 302. 136 Fed., 34. In re Nichols, 
 22 A. B. R., 216. 166 Fed., 603. And what is reasonable may prop- 
 erly be fixed by standing rule. In re Foss, 17 A. B. R., 439. 147 
 
R 27-28 BANKRUPTCY RULES. 172 
 
 Fed., 790. It should never be allowed to unreasonably delay the set- 
 tlement of the estate. In re Grant, 16 A. B. R., 256. 143 Fed., 661. 
 Ten days may be regarded as a proper time limit. In re Scherr, 14 
 A. B. R., 794. 138 Fed., 695. Thirty days should not be exceeded 
 except under extreme circumstances. In re Verdon Cigar Co., 27 A. B. 
 R., 56. 193 Fed., 813. Where there is no rule it rests in the sound 
 discretion of the Court. Bacon v. Roberts, 17 A. B. R., 421. 146 Fed., 
 729. In re Nippon Trading Co., 25 A. B. R., 695. 182 Fed., 959. 
 
 (e) After the time so fixed has passed, a petition can only be 
 filed by special leave. In re Lesher, 25 A. B. R., 218, 176 Fed., 650. 
 
 SALES. 
 
 Rule 27. All sales of a bankrupt's property, real or 
 personal, shall be public, unless otherwise ordered; and due 
 advertisement thereof shall be given; (i) by notices mailed 
 to all creditors at their respective addresses, at least ten days 
 before the date of sale; (2) by ten hand bills posted on the 
 premises and in the most public places in the neighborhood for 
 a like period; and (3) by publication in a designated news- 
 paper of the district, which publication in the case of real estate 
 shall be once a week for four consecutive weeks, the last 
 publication to be at least three days before the day of sale 
 (a). In the case of public sales by a receiver or by the 
 marshal, the notices to creditors shall be sent by the clerk, 
 a list of whom shall be furnished at the time by the party 
 petitioning for the sale ; but in case of sales by a trustee, they 
 shall be sent by the referee, who orders the same. 
 
 (a) The Act of March 3, 1893, 27 Stat., 751, requiring four weeks' 
 advertisement of real estate sales in the Federal Courts, does not 
 apply to sales in bankruptcy. In re Edes, 135 Fed., 595, 14 A. B. R., 
 382. In re National Mining Co., 193 Fed., 232, 27 A. B. R., 92. A 
 provision for four weeks' publication requires that the first advertise- 
 ment shall be at least twenty-eight days before the sale. Wilson v. 
 Northwest, &c., Co., 65 Fed., 38. 
 
 Rule 28. Sales of a bankrupt's real estate shall be made 
 as ordered by the referee, on petition of the trustee, upon 
 such terms as may be prescribed in the order. The petition 
 of the trustee shall accurately describe the property, and set 
 forth the title of the bankrupt, and the liens and incumbran- 
 ces upon it; and no order for a sale free and clear of liens (a) 
 shall be made, nor any lien or incumbrance be divested (b) 
 without due notice to the holder or holders thereof (c), and 
 a reasonable opportunity to be heard thereon, due proof of 
 which notice shall be made under oath and filed with the 
 referee before a sale is ordered. 
 
173 BANKRUPTCY RULES. R 29-30-31 
 
 (a) Where it is for the interest of general creditors the Court 
 may order a sale of the bankrupt's real estate free and clear of 
 hens, even though the encumbrances equal the value of the property. 
 In re Keet, 11 A. B. R., 117. 128 Fed., 651. In re Shoe and Leather 
 Reporter Co., 12 A. B. R., 248. 129 Fed., 588. In re Roger Brown & 
 Co., ig6 Fed., 758. 
 
 (&) An order of sale making no mention of' liens will be taken 
 to mean a sale subject to them. In re Platteville Foundry Co., 17 
 A B. R., 291. 147 Fed., 828. But where the order directs that the 
 sale shall be subject to the lien of a first mortgage all other liens 
 are thereby divested. In re Prince & Walter, 12 A. B. R., 675, 678. 
 131 Fed., 546. 
 
 (c) To sustain an order for the sale of real estate free and clear 
 of liens, the record should show affirmatively that the holders of 
 the liens had notice. In re Saxton Furnace, 14 A. B. R., 483 136 
 Fed., 697. Allgair v. Fisher, 16 A. B. R., 278. 143 Fed., 962. In re 
 Kohl-Hepp Brick Co., 23 A. B. R., 822. 176 Fed., 340. 
 
 Rule 29. Where, on a sale of real estate, the property 
 is purchased by a lien creditor, whose lien is divested thereby, 
 he shall be entitled to satisfy his bid by means of his lien 
 to the extent that the same is prima facie reached by the 
 sale ; subject to exceptions by any party interested, and an 
 order for the payment of the bid in money, or to a re-sale of the 
 property, in case it is found that the lien is not reached (a). 
 
 (a) See in re Saxton Furnace Co., 14 A. B. R., 483. 136 Fed., 
 697. In re Wyoming Valley Ice Co., 153 Fed., 787, 795. Wiegand v. 
 Albert Lewis Lumber Co., 158 Fed., 608. 
 
 Rule 30. Returns of sales shall be made to the referee, 
 by whom they shall be confirmed nisi, with leave to any party 
 interested, to file exceptions within ten days. If no such ex- 
 ceptions are filed, the referee shall certify to the Court the 
 record of the sale, including the petition, order, proofs of 
 notice, posting and publication, and return ; and if found to 
 be in conformity with law, the Court shall confirm the same 
 finally, and authorize the trustee to execute the necessary 
 deed or deeds to the purchasers ; which order of confirmation 
 shall recite the description of the property at length, and be 
 spread in full on the minutes. Or, if exceptions are filed, the 
 referee shall return them to the Court with the rest of the 
 record to be proceeded with as may be thereupon ordered. 
 
 The appraisement made by the trustee is not necessarily a measure 
 of the adequacy of the price at which it is bid off. In re Zehner, 27 
 A. B. R., 536. 193 Fed., 787. 
 
 Rule 31. Private sales of real estate (a) shall be subject 
 in all respects to the same regulations as public sales, except 
 that there shall be no, posting or publication of notices (b). 
 
R 32-33 BANKRUPTCY RULES. 174 
 
 (o) See General Order XVIII. It is discretionary with the Court, 
 whether to order a public or a private sale. In re Hawkins, 11 A. B. R., 
 49. 125 Fed., 633. In re Edes, 14 A. B. R., 382. 135 Fed., 595. 
 
 (&) Where liens are to be divested, personal notice to the lienors 
 should be given in case of a private the same as a public sale. AU- 
 gair V. Fisher, 16 A. B. R., 278. 143 Fed., 962. 
 
 Rule 32. Private sales of personal property, whether 
 made by a trustee or by a receiver, shall not be confirmed 
 without ten days' notice by mail to creditors. 
 
 Rule 33. Where the goods of a bankrupt are sold by the 
 marshal, the money realized shall be paid into Court, to be dis- 
 posed of as may be ordered. 
 
iisriDEix: 
 
 ACCOUNTS. Rule. 
 
 Receivers. 
 
 to be filed with clerk i 
 
 confirmed nisi when filed i 
 
 finally, when i 
 
 creditors to be notified by clerk i 
 
 exceptions to be filed within lo days i 
 
 how disposed of i 
 
 Trustees. 
 
 forwarded to Court, whether excepted to or not 2 
 
 confirmed finally by court, after examination 2 
 
 APPRAISEMENT. 
 
 where made by receiver, none to be made by trustee 3 
 
 ATTORNEYS. 
 
 for petitioning creditors, to be for estate, when 4 
 
 trustee, on qualifying, may appoint 4 
 
 fee of $50. allowed to petitioning creditors in involuntary 
 
 cases 5 
 
 fee of $50. allowed to bankrupt in voluntary cases 5 
 
 no further fee allowed, except for cause shown 5 
 
 where no trustee appointed, $5., filing fee, returned to 6 
 
 CLERK. 
 
 dismissal of proceedings, notice of to creditors to be given by. 11 
 
 fees on notices given to creditors 14 
 
 sundry matters not covered by statute 153. 
 
 notices of receiver's sales to be sent by 27 
 
 receiver's accounts to be filed "^with i 
 
 notice of to creditors to be sent by i 
 
 COMPOSITION. 
 Before Adjudication. 
 
 offer of, to be certified to proper referee 7a. 
 
 meeting of creditors to be called 7a. 
 
 if terms accepted, application for confirmation to be made. ... 7a. 
 certified check for necessary amount, including costs, to be 
 
 drawn 7^- 
 
 rule on creditors to show cause to be entered 7a. 
 
 to be further proceeded with, as in other cases 7a. 
 
176 INDEX TO BANKRUPTCY RULES. 
 
 After Adjudication. 
 
 acceptance of majority of creditors to be filed 7 
 
 check or draft for amount necessary to carry out required. ... 7 
 rule on creditors to show cause returnable before referee, in 
 
 10 days, to be entered. 7 
 
 notice of, to be given by mail by referee 7 
 
 advertised in designated newspaper 7 
 
 appearance in opposition to, to be entered within 10 days. . 7 
 
 objections to, must be specific 7 
 
 to be filed with referee in 10 days after appearance 7 
 
 to be certified to Court for disposition 7 
 
 when not objected to, to be confirmed by referee 7 
 
 referee to report list of creditors and mail dividend checks to 
 
 each 7 
 
 referee to retain 1% on amount received and paid out 7 
 
 DISCHARGE. 
 
 applications for, form of 8 
 
 certificate of referee to accompany 8 
 
 notice of how, to be given 8 
 
 creditors to appear and show cause against. 8 
 
 costs, on advertisement of 15 
 
 appearance in opposition to be entered 8 
 
 certificate of discharge to be issued to bankrupt 10 
 
 objections to, to be filed, and be certified to referee 8 
 
 proceedings for, where no application made within a year .... 9 
 
 DISMISSAL OF PROCEEDINGS. 
 
 applications for, to be heard when ■ 1 1 
 
 for want of prosecution, or by consent, only after notice... . 11 
 
 list of creditors with addresses to be furnished by bankrupt. . 11 
 
 notice of application for. to be given to creditors by clerk. ... 11 
 
 EXCEPTIONS. 
 
 to discharge to be filed, when 8 
 
 to real estate sales, to be made, when 30 
 
 to receiver's accounts, to be filed within 10 days i 
 
 may be heard by Court or sent to referee i 
 
 Court may correct without i 
 
 to trustee's accounts. Court will revise without, when 2 
 
 EXEMPTION. 
 
 how set off on appointment of receiver 12 
 
 how reserved out of receiver's sale 12 
 
 how arranged where no trustee appointed , 13 
 
 FEES AND COSTS. 
 
 attorney fee of $50. allowed petitioning creditors 5 
 
 also to bankrupt S 
 
 clerk's fees on notices to creditors 14 
 
 in sundry matters not provided for by statute. . . . 15a. 
 
 costs on advertisement of application for discharge 15 
 
 $15. deposit, how disposed of, on resignation of referee 26 
 
 how disposed of in case of death 26 
 
 where no trustee appointed, $5. filing fee to be returned to 
 
 attorney 6 
 
INDEX TO BANKRUPTCY RULES. 177 
 
 FORMA PAUPERIS. 
 
 affidavit of inability, to accompany petition i6 
 
 may be disputed i6 
 
 if not true bankrupt required to pay. ... i6 
 
 filing fee not required in case of poverty i6 
 
 INJUNCTIONS. 
 
 stay of legal proceedings to be by Court 17 
 
 where Judge absent, may be by referee 17 
 
 where granted by referee, motion to vacate to be made within 
 
 10 days 17 
 
 LIENS. 
 
 on purchase by holder of. may use to satisfy 29 
 
 sale free and clear of, only made on notice 28 
 
 MARSHAL. • 
 
 proceeds of sale by, to be paid into Court 33 
 
 warrant to, application for, to be made to Court 19 
 
 bankrupt must have notice of, 
 
 before 20 
 
 where Judge is absent, may be to 
 
 referee .19 
 
 NOTICES. 
 
 composition, referee to give, of 7 
 
 discharge applications, to be published by clerk 8 
 
 dismissal of proceedings, creditors to have notice of 11 
 
 of exemption claim, where no trustee appointed 13 
 
 of sale by receivers to be sent by clerk 27 
 
 trustees to be sent by referee 27 
 
 on private sale of personal property, creditors to have 10 days. 32 
 
 receiver's accounts, clerk to give, of filing i 
 
 sale of real estate free of liens, only on notice 28 
 
 where required by rules, to be given by mail by clerk, when. . 18 
 
 OBJECTIONS. 
 
 see exceptions. 
 PETITION FOR REVIEW. 
 
 see review. 
 
 RECEIVERS. 
 Accounts of. 
 
 to be filed with clerk i 
 
 notices to be mailed to creditors i 
 
 exceptions, to be filed within 10 days I 
 
 may be heard by court, or sent to referee i 
 
 court may revise without I 
 
 if none filed, to be finally confirmed, unless grounds 
 
 for correcting found I 
 
 Application for, to be made to court 19 
 
 when may be, to referee 19 
 
 before adjudication, must be on notice 20 
 
 Appraisement by, none to be made by trustee, after 3 
 
 Exemption, how allowed where sale by, ordered 12 
 
 RECLAMATION PROCEEDINGS. 
 
 petition in, to be made to Court 21 
 
 what to set forth 21 
 
 how heard and disposed of 21 
 
 RECORDS. 
 
 referee to retain, till case closed 23 
 
178 INDEX TO BANKRUPTCY RULES. 
 
 REFEREES. 
 
 bonds of trustees, to be transmitted by 23 
 
 other papers retained until case closed 23 
 
 certificate from, to accompany application for discharge. .. . 8 
 
 list of claims proved, to be sent to clerk , 23 
 
 monthly returns of expenses to be general •. . . . 24 
 
 notices to creditors of sale by trustee to be sent by 27 
 
 objections to discharge to be certified to 8 
 
 on resignation or removal, $15 deposit, how disposed of.... 25 
 
 on death, the same to go to referee closing the case 25 
 
 petition for revievjr of, to be filed within 10 days 26 
 
 reclamation proceedings, may be certified to 21 
 
 return of sale by trustee to be made to 30 
 
 sales of real estate, on trustee's petition, ordered by 28 
 
 stay by, When Judge is absent 17 
 
 trustee may appoint attorney, with approval of 4 
 
 warrant to marshal, ordered by, when 19 
 
 REVIEW. 
 
 petition for review of referee, to be in prescribed form.... 26, 
 
 to be filed with referee within 10 days. . 26 
 SALES. 
 
 real or personal, to be public, when 27 
 
 real estate, to be ordered by referee 28 
 
 how advertised 27 
 
 10 days notice by mail to creditors 27 
 
 petition for, by trustee, what to contain 28 
 
 liens and incumbrances to be set forth 28 
 free and clear of liens only ordered on ' ■ 
 
 notice 28 
 
 return of, to be made to referee 30 
 
 exceptions to, to be filed with referee. 30 
 record of, to be certified to court for final confir- 
 mation 30 
 
 notice to creditors of sale by receiver, sent by clerk 27 
 
 of sale by trustee, sent by referee 27 
 
 private sales, subject to same regulations as public 31 
 
 of personal property not confirmed without 
 
 notice to creditors 32 
 
 proceeds of sale by marshal, to be paid into court 33 
 
 STAY. See Injunctions. 
 
 TRUSTEES. 
 
 Accounts of, to be forwarded to court for review 2 
 
 to be examined and confirmed finally by court. . . 2 
 Appraisement by, none to be made, after appraisement by re- 
 ceiver 3 
 
 Attorney, trustee, on qualifying, may appoint 4 
 
 Bonds of, to be transmitted by referee 22 
 
 Exemptions, how allowed when- nO' trustee 13 
 
 Petition of, for sale of real estate, what to contain 28 
 
 list of liens to accompany. . 28 
 
 lienholders to have notice. . 28 
 
 Return of sale to be made by, to referee 30 
 
 Sales by, notice of to be sent by referee .........[ 27 
 
 WARRANT TO MARSHAL, 
 
 notice for, when to be given 20 
 
Additional Rules Issued Since the Publica- 
 tion of Archibald's Federal Rules. 
 
 FEES OF RECEIVERS, TRUSTEES 
 
 AND ATTORNEYS. 
 
 Rule 34. Receivers, Attorneys for Receivers, Trustees, 
 Attorneys for Trustees, and Referees in rendering accounts, 
 or making claim for fees and compensation, shall fully 
 itemize the accounts rendered and accompany all claims 
 for fees and' compensation with a full statement of the 
 services rendered. 
 
 RULES AND FEE BILL GOVERNING CHARGES OF 
 FEES BY REFEREE IN BANKRUPTCY. 
 
 NOW, June 17th, 1913, Referees in Bankruptcy will be 
 allowed the expenses necessarily incurred in the performance 
 of their duties, according to the following scale of maximum 
 charges, until otherwise ordered. 
 
 1. Amounts paid for advertisements (vouchers annexed). 
 
 2. For all clerical aid in preparing advertisements and 
 notices to creditors of first meeting, mailing the same and proof 
 thereof, keeping register, iiles and records, and preparing 
 typewritten memoranda of proceedings prior to the first meet- 
 ing of creditors, including stationery, envelopes, printing, let- 
 ters, messages, and all petty expenses, $5.00. 
 
 3. For similar clerical aid, etc., on notices of application 
 for confirmation of composition, $5.00. 
 
 4. For similar clerical aid, etc., on notices of each and any 
 other meeting of creditors, $2.00. 
 
 5. If notices to creditors exceed 20 in number, in any of 
 above cases, 10 cents in addition to the above for each notice 
 in excess of 20 (the number of creditors to be stated). 
 
 6. For use of ofifice and for clerical aid in taking and keep- 
 ing notes and records of proceedings at first meeting of 
 creditors up to choice or appointment and qualification of 
 
 11 'L 
 
trustee (any adjournments at creditors' request to be paid for 
 by them at the same rate), $2.50. 
 
 7. For use of office and for clerical aid in taking and keep- 
 ing notes and records of proceedings, for each subsequent 
 meeting of creditors, $2.50. 
 
 8. For clerical aid in taking and perpetuating testimony on 
 the examination of the bankrupt or other persons before the 
 referee (where the parties do not agree with the referee's 
 approval in taking such examination themselves) ten cents per 
 folio, whether taken in long hand or transcribed from stenog- 
 rapher's notes, to be paid by the party examining the bank- 
 rupt or witness ; for any copy of testimony, 10 cents per folio, 
 to be paid by the party ordering the same. 
 
 9. For copies of orders, or other papers, 50 cents ; if exceed- 
 ing one page, 25 cents additional for each page, to be paid by 
 the party ordering. 
 
 ID. A deposit of $15.00 with the referee at the time of 
 appearance before him, to meet the foregoing expenses fixed 
 by these rules, shall be required in all cases, the same to be 
 refunded out of the assets of the estate.