LifH POftTUND CEMfcNT GOHPMft UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY Of elementary treatises on all the principal subjects of the law. The special features of these books are as follows: 1. A succinct statement of leading principles In black-letter type. 2. A more extended commentary, elucidating the principles. 3- Notes and authorities. Published in regular octavo form, and sold at the uniform price of $3.75 per volume, including delivery. Bound In American Law Buckram. 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24. 25. 26. 27. 28. 29. 30. 31. 32. 33. 34. 35. 36. 37. Norton on Bills and Notes. (3d Ed.) Clark on Criminal Law. (2d Ed.) Shipman on Common-Law Pleading. (2d Ed.) Clark on Contracts. (2d Ed.) Black on Constitutional Law. (3d Ed.) Fetter on Equity. Clark on Criminal Procedure. Tiffany on Sales. (2d Ed.) Glenn on International Law. Jaggard on Torts. (2 vols.) Black on Interpretation of Laws. (2d Ed.) Hale on Bailments and Carriers. Smith on Elementary Law. Hale on Damages. (2d Ed.) Hopkins on Real Property. Hale on Torts. Tiffany on Persons and Domestic Relations. (2d Ed.) Croswell on Executors and Administrators. Clark on Corporations. (2d Ed.) George on Partnership. Shipman on Equity Pleading. McKelvey on Evidence. (2d Ed.) Barrows on Negligence. Hughes on Admiralty. Eaton on Equity. Tiffany on Principal and Agent. Gardner on Wills. Vance on Insurance. Ingersoll on Public Corporations. Hughes on Federal Jurisdiction and Procedure. (2d Ed.) Childs on Surety and Guaranty. Costigan on American Mining Law. Wilson on International Law. Gilmore on Partnership. Black on Judicial Precedents. Tiffany on Banks and Banking. Cooley on Municipal Corporations. In preparation: Handbooks of the law on other subjects to be an- nounced later. Published and for sale by WEST PUBLISHING CO., ST. PAUL, MINN. C5855k HANDBOOK OF JURISDICTION AND PROCEDURE IN UNITED STATES COURTS BY ROBERT M. HUGHES, M.A. OF THE NORFOLK (VA.) BAR AUTHOR OF HANDBOOK OF ADMIRALTY LAW SECOND EDITION ST. PAUL, MINN. WEST PUBLISHING CO. 1913 r COPYRIGHT, 1904 BT WEST PUBLISHING CO. COPYRIGHT, 1913 BT WEST PUBLISHING CO. (HUGHES FED.PB.,2D ED.) In Memoriam ROBERT W. HUGHES, LL. D. U. S. District Judge 1874-1898. (v)* 761635 PREFACE TO THE SECOND EDITION THIS treatise is designed to fulfill the usual functions of the Hornbooks on the subject of which it treats. It does not pur- port to be an exhaustive or elaborate discussion, as such a plan would involve several volumes, instead of one. It is, however, intended to be a means of ready reference to the law on those questions of ordinary routine which the author's experience as a specialist in federal practice has taught him most frequently arise. It is believed that the need exists for a work of this character, notwithstanding the several excellent text-books covering the general subject which go into much greater de- tail. The work is designed, also, for use in law schools, where the need of such a treatise seems to be specially apparent. It has seemed to the author much better and simpler in the discussion of the subject to commence with the inferior courts and follow up through the courts of last resort, though that is not the usual scheme adopted by other text-books on the sub- ject. While this plan involves some duplication and cross- referencing, its advantage in enabling the student to trace a case from its inception to its final conclusion is so great as to have convinced the author that it is the best method of treat- ing the subject. In order to facilitate the use of the book as a court vade mecum, many statutes have been quoted verbatim; and the Supreme Court Rules, the Equity Rules and the Judicial Code have been inserted as an appendix. The index under these respective heads refers to those so quoted. In the discussion of so much detail, mistakes are inevitable, and, although the author has endeavored to exercise the ut- most care, he cannot hope to have escaped them. He begs the indulgence of the bar if any such have occurred. (vii) TABLE OF CONTENTS CHAPTER I OF THE SOURCE OF FEDERAL JURISDICTION AND THE LAW ADMINISTERED BY FEDERAL COURTS Section Page 1. The Source of the Jurisdiction 3-5 2. Derivation of Powers of Federal Courts 5 3. No Federal Common Law 5-8 4. The Law Administered 8 5. Same Law of Local State When No Written Federal Law Applicable 8-9 6. Same Statutes of Local State 9-12 7. Same Unwritten Law of Local State 13 8. Same Construction of State Statute 13-16 9. State Law of Title to Real Property 16 10. Contract or Personal Relations 17 11. Not Bound by State Law in Questions of General or Commercial Character 17-19 CHAPTER II THE DISTRICT COURT ITS CRIMINAL JURISDICTION AND PRACTICE 12. The Federal Judicial System 20-22 13. The District Court 23-24 14. Criminal Jurisdiction of the District Courts 24-27 15. Criminal Procedure 28 16. Procedure by Complaint 28 17. United States Commissioners 28-33 18. Place of Trial Warrant of Removal 33 19. Same Proper Place 34-38 CHAPTER III THE DISTRICT COURT (Continued) CRIMINAL JURISDICTION AND PRACTICE (Continued) 20. Indictment 39-41 21. Same Form of Indictment 42-48 HUGHES FED.PB.(2o ED.) (viii) TABLE OP CONTENTS IX Section Page 22. Information 49 23. Same Form of Information 49 24. The Defense 50-55 25. The Trial and Its Incidents 55-68 CHAPTER IV THE DISTRICT COURT (Continued) MISCELLANEOUS JURIS- DICTION 26. Penalties, Forfeitures, and Seizures 69 27. Same Nature and Form 69-73 28. Admiralty 74 29. Same Nature and Form 74-76 30. Particular Classes of Litigation, Including Questions under the Laws Relating to the Slave Trade, the Revenue, Domestic and Foreign, the Postal Laws, the Patent, Copyright, and Trade-Mark Laws, the In- terstate Commerce Laws, Questions on Debentures, the Civil Rights Laws, the National Bank Laws, Suits by Aliens for Torts and Suits against Consuls 76-82 CHAPTER V THE DISTRICT COURT (Continued) BANKRUPTCY 31. Bankruptcy Jurisdiction Over 83 32. Same History of the Legislation 83 33. Same Policy of the Legislation 84-87 34. Constitutionality of Bankrupt Legislation 87-90 35. Same Effect of Federal on State Legislation 90-91 36. The Bankruptcy Courts 92-94 37. Parties Voluntary Proceedings 95-96 38. Same Involuntary Proceedings 96-99 39. Pleadings 99-107 40. Acts of Bankruptcy Definition and Enumeration 107 41. Same Transfers to Hinder, Delay, and Defraud Cred- itors 107-109 42. Same Illegal Preferences 109-110 43. Same Suffering Preferences by Legal Process 110-113 44. Same Assignment as an Act of Bankruptcy 113-115 45. Same Admission of Insolvency in Writing 116-117 46. Time of Filing Petition 117-118 TABLE OP CONTENTS CHAPTER VI THE DISTRICT COURT (Continued) BANKRUPTCY (Continued) Section Page 47. The Process on an Involuntary Petition 119-121 48. The Warrant of Seizure 122-124 49. The Appointment of a Receiver 124-126 50. The Defense 126-128 51. The Right to a Jury 128-129 52. The Adjudication 130 53. The Creditors' Meeting 131-140 54. The Examination of the Bankrupt 140-143 CHAPTER VII THE DISTRICT COURT (Continued) BANKRUPTCY (Continued) 55. The Trustee 144-145 56. The Title of the Trustee 145-152 57. The Trustee's Duties of Administration Recordation of Decree of Adjudication 152 58. Same The Collection of the Assets 153-154 59. Same Trustee's Rights against Parties Claiming Ad- versely under Alleged Void Transfers, etc 154-156 60. Same The Circumstances Avoiding an Alleged Illegal Transfer 157-158 61. Same Same Insolvency 158-160 62. The Trustee's Interest in Insurance Policies 160 63. The Trustee's Interest in Rights of Action 161 64. The Trustee's Power of Sale 161-163 65. The Trustee's Duties as to Distribution of the Estate 163-165 66. The Trustee's Duties as to the Bankrupt's Exemptions 165-166 CHAPTER VIII DISTRICT COURT (Continued) BANKRUPTCY (Continued) 67. The Discharge Application for 167-169 68. Same Method of Opposing 169-170 69. Same Burden of Proof 170-172 70. Grounds of Opposition to Discharge 172-178 71. The Debts Not Affected by a Discharge 178-181 72. Revocation of a Discharge 181-182 TABLE OF CONTENTS CHAPTER IX THE DISTRICT COURT (Continued) PARTICULAR CLASSES OF JURISDICTION Section Page 73. Claims against the United States Proper Forum.... 183-184 74. Same The Subjects of Jurisdiction 184-188 75. Same The Procedure 188-189 76. Same The Appeal 189-190 77. Same--The Proper Appellate Court 190-192 78. Suits to Abate Unlawful Inclosures of Public Lands. . 192-193 79. Suits under Immigration Laws 193-194 80. Suits against Restraints and Monopolies 194-195 81. Claims of Indians for Lands under Treaties 196 82. Suits against United States for Partition 196 83. Suits under Chinese Exclusion Laws 197 84. Unclassified Cases 197 CHAPTER X THE DISTRICT COURT (Continued) JURISDICTION TO ISSUE CERTAIN EXTRAORDINARY WRITS 85. Ad Quod Damnum or Condemnation Proceedings 198-202 86. Writ of Habeas Corpus 202-206 87. Same Federal Jurisdiction 206-209 88. Same When Jurisdiction Exercised 209-211 89. Same The Particular Federal Courts Having Jurisdic- tion to Issue 211-213 90. Same Procedure on Habeas Corpus 213-216 91. Ne Exeat 216-217 CHAPTER XI DISTRICT COURT (Continued) ORIGINAL JURISDICTION OVER ORDINARY CONTROVERSIES 92. The Ordinary Civil Jurisdiction of the District Courts 218-220 93. Same Suits of a Civil Nature at Common Law or in Equity Meaning of "Suit" 220-223 94. Same Same Suits at Law 223 95. Same Same Suits in Equity 223-225 96. Same Suits by the United States or Any Officer Thereof 225-226 Xii TABLE OF CONTENTS Section Page 97. Same Controversies between Citizens of the Same State Claiming Lands under Grants of Different States 226-227 98. Same Jurisdictional Amount 227-235 99. Same Federal Questions 235-243 100. Same Controversies between Citizens of Different States Natural Persons 243-247 CHAPTER XII THE DISTRICT COURT (Continued) ORIGINAL JURISDICTION (Continued) 101. Same Same Corporations 248-255 102. Same Same Plurality of Litigants 255-260 103. Same Controversies between Citizens of a State and Foreign States, Citizens, or Subjects 260-264 104. Same Venue of Actions 264-269 105. Same Same Rule when Litigants are Numerous 269-270 106. Same Same Suits against Defendants of Different Districts in Same State, and Suits in Rem 270-277 CHAPTER XIII THE DISTRICT COURT (Continued) ORIGINAL JURISDICTION (Continued) 107. Same Jurisdiction as Affected by Assignment 278-285 108. Same Devices to Confer Jurisdiction 285-290 109. Jurisdiction as Incident to or Derivative from Other Grounds of Jurisdiction 290-300 CHAPTER XIV THE DISTRICT COURT (Continued) JURISDICTION BY RE- MOVAL 110. Removals from State Courts Purpose of Such Juris- diction 301-302 111. Nature of the Right How Far Waivable 303-306 112. Scope of the Jurisdiction 307-308 113. Federal Questions 309-319 114. Suits by the United States 319 TABLE OF CONTENTS CHAPTER XV THE DISTRICT COURT (Continued) JURISDICTION BY RE- MOVAL (Continued) Section Page 115. Controversies between Citizens of Different States.... 320-322 116. Devices to Prevent Removal 322-324 117. Controversies between Citizens of the Same State Claiming Lands under Grants of Different States. .. 325-326 118. Controversies between Citizens of a State and Foreign States, Citizens or Subjects 326-328 119. Parties Entitled to Remove 328-329 120. Separable Controversies 329-338 121. Removal on Ground of Prejudice or Local Influence.. 338-343 122. Removal because of State Denial of Equal Civil Rights 343-346 123. Removal of Suits against Officers or Persons Enforcing the Internal Revenue Laws 346-350 CHAPTER XVI THE DISTRICT COURT (Concluded) JURISDICTION BY RE- MOVAL (Concluded) 124. Steps to Secure and Effect Removal In General 351-352 125. Form of Petition in General 353-356 126. Place to File Petition 356-357 127. Proper Averments in the Petition 357-364 128. The Removal Bond 364-365 129. Time of Filing Petition 365-371 130. Steps at Filing of Petition 371-374 131. Filing and Subsequent Procedure in Federal Court 375-379 132. Motion to Remand 380-381 CHAPTER XVII OTHER COURTS VESTED WITH ORIGINAL JURISDICTION 133. The Supreme Court 382-387 134. Other Courts of Less General Interest 387-388 TABLE OF CONTENTS CHAPTER XVIII PROCEDURE IN THE ORDINARY FEDERAL COURTS OF ORIGINAL JURISDICTION COURTS OF LAW Section Page 135. Distinction between Law and Equity 389-390 136. Procedure in Courts of Law 391-392 137. Same Process 392-394 138. Same Attachments 394-395 139. Same Appearances 396 140. Same Parties to Common-Law Actions 396-397 141. Same Pleading 397-399 142. Same Continuances 399-400 143. Same Trial 400-402 144. Same Same Evidence 402-404 145. Same Same Instructions to Jury 404-407 146. Same Same Bill of Exceptions 407^10 147. Same Same Verdict 410-411 148. Same Motion for New Trial 411-412 149. Same Motion In Arrest of Judgment 412 150. Same Judgment 412-415 151. Same Execution 415-417 CHAPTER XIX PROCEDURE IN THE ORDINARY FEDERAL COURTS OF ORIGINAL JURISDICTION (Continued) COURTS OF EQUITY 152. General Limits of Equitable Jurisdiction 418-419 153. The Equity Procedure in tne Federal Courts How Regulated 420-423 154. Same Pleading General Requisites of the Bill 423-426 155. Same Same Injunction Bills 426-429 156. Same Same Judges Who may Issue Injunctions 429-430 157. Same Same Injunctions to State Courts 430-431 158. Same Same Injunctions to State Officials or Boards 431-433 159. Same The Process 434-436 160. Same Defaults 436-438 161. Same The Defense Motions 439-443 TABLE OF CONTENTS XV CHAPTER XX PROCEDURE IN THE ORDINARY FEDERAL COURTS OF ORIGINAL JURISDICTION (Continued) COURTS OF EQUITY (Continued) Section Page 162. The Defense (Continued) The Answer 444-446 163. Same Same Joinder of Issue on 446-448 164. The Proofs 448-449 165. Same Testimony by Deposition before Examiners. ... 449-450 166. Same Testimony by Deposition under Statutes 450-452 167. References 452-457 168. The Decree Form of 458 169. Same Its Enforcement 458-462 170. Same Reopening of Decree 463^65 CHAPTER XXI APPELLATE JURISDICTION THE CIRCUIT COURT OF APPEALS 171. The Appellate Courts 466-468 172. The Circuit Court of Appeals Its Organization 469-470 173. Jurisdiction of the Circuit Court of Appeals 471-473 174. Same Cases Excepted from the Jurisdiction of the Circuit Court of Appeals 473-479 175. Same Instances of the Jurisdiction 479-488 176. Same Cases in which the Decision of the Circuit Court of Appeals is Final 488-492 177. Same Power of Circuit Court of Appeals to Issue Auxiliary Writs 493 CHAPTER XXII APPELLATE JURISDICTION (Continued) THE SUPREME COURT 178. The Supreme Court of the United States Its Organ- ization 494-496 179. The Appellate Jurisdiction of the Supreme Court The Courts whose Decisions are Reviewable by the Supreme Court 498 180. Appeals from the United States District Courts 496-513 181. Appeals from the Circuit Courts of Appeals 514-524 182. Appeals from Territorial Courts 525 183. Appeals from the Court of Appeals of the District of Columbia 526 XVl TABLE OP CONTENTS Section Page 184. Appeals from the Court of Claims 527 185. Appeals from the Commerce Court 527 186. Review of State Court Decisions 527-528 187. Same Constitutionality 528-529 188. Same The Proceedings Reviewable 530 189. Same The Courts whose Decisions are Reviewable. . . 531-532 190. Same By Whom the Right of Review may be Invoked 532 191. Same Character of Questions Reviewable 532-537 192. Same How a Federal Question must be Raised or Shown by the Record 537-543 CHAPTER XXIII PROCEDURE ON ERROR AND APPEAL 193. Review by the Supreme Court 544-546 194. Same Writ of Error 547-558 195. Same Appeal 558-562 196. Same Other Methods 563-574 197. Review by the Circuit Court of Appeals 574-577 198. Trial in the Appellate Courts 577-579 APPENDIX RULES OF THE UNITED STATES SUPREME COURT (Page 581) RULES OF PRACTICE FOR THE COURTS OF EQUITY OF THE UNITED STATES (Page 601) THE JUDICIAL CODE (Page 623) THE COMMERCE COURT (Page 701) TABLE OF CASES CITED (Page 705) INDEX (Page 739) f t This volume contains Key-Number Annotations That is to say. for every point of law which is stated or discussed in tKe text, and in su{>f>ort of which cases are cited, there is added to tlie author s note a citation to the Key- Number section or sections in the Decennial Digest or in tne Key-Number Series, under which all cases di- rectly involving that point Kave been digested. A SHnilar citation to the Century Digest is given, except where tKe principle involved is one on wlucn no case law existed prior to 1897. HUGHES FED.PB.(2o ED.) (xviil)t A HANDBOOK OF FEDERAL JURISDICTION AND PROCEDURE SECOND EDITION INTRODUCTION WHAT IT COMPREHENDS The subject of federal jurisdiction and procedure includes the body of laws administered in the federal courts, and the organization and powers of the different courts charged with the duty of admin- istering those laws. The federal government being one of delegated powers only, the questions coming before the federal courts for discussion and decision necessarily are only those which the federal Constitution, or the acts of Congress passed in pursuance thereof, have intrusted to those courts. The subject logically resolves itself into the following general analysis, which will be followed in this work: A. The law administered and its origin : (1) Solely statutory. (2) Composed of (a) Federal statutes; (b) State laws. HUGHES FED.PR.^D KD.) 1 INTRODUCTION B. The courts administering the federal law: (1) The courts of original jurisdiction: (a) The District Court. (b) The Supreme Court (c) Various minor courts, including: (1) The Court of Claims. (2) The Court of Customs Appeals. (3) The Commerce Court. (4) The courts of the dependencies. (2) The courts of appellate jurisdiction: (a) The Circuit Court of Appeals. (b) The Supreme Court. (Ch. 1, 1) FEDEBAL JTJBISDICTION CHAPTER I OF THE SOURCE OF FEDERAL JURISDICTION AND THE LAW ADMINISTERED BY FEDERAL COURTS 1. The Source of the Jurisdiction. 2. Derivation of Powers of Federal Courts. 3. No Federal Common Law. 4. The Law Administered. 5. Same Law of Local State When No Written Federal Law Ap- plicable. 6. Same Statutes of Local State. 7. Same Unwritten Law of Local State. 8. Same Construction of State Statute. 9. State Law of Title to Real Property. 10. Contract or Personal Relations. 11. Not Bound by State Law in Questions of General or Commer- cial Character. THE SOURCE OF THE JURISDICTION 1. The jurisdiction administered by the federal courts aris- es exclusively from the federal Constitution and the laws and treaties made under its authority. Our dual system of government renders us subject to the constitution and laws of our state in most matters of local concern, and to the federal Constitution in national and international matters. This latter Constitution, be- coming effective thirteen years after the independence of the original states, and only adopted after great opposition, is a constitution of limited scope; containing simply the powers therein expressly granted, and leaving with the states all powers not enumerated and too vast to be numer- able. In the conflict along the necessarily uncertain border land between those federal powers expressly granted and those cautiously and jealously withheld, it required little 4 FEDEKAL JURISDICTION (Ch. 1 prescience to realize that a system of national courts was necessary to protect the new government in retaining and defending the privileges and duties imposed upon it by this new and untried document. The experience of the states under the Articles of Confederation had taught this beyond peradventure. And our history since the adoption of the Constitution has shown that if state courts alone had been intrusted with the duty of construing the Constitu- tion, especially in those doubtful and difficult questions as to the relative powers of the states and the nation, it would have been rendered impotent to accomplish the objects for which it was designed. The national courts and the long line of great jurists who have sat in them have saved it from this fate, and given it vigor and vitality. If, as some say, they have made of it an instrument which its original draftsman never designed and of which they never dream- ed, it is fair to say in their vindication that they have made of us a nation of which our fathers never dreamed. The judicial power of the United States courts, as a whole, is conferred by article 3, 2, par. 1, of the Consti- tution, which provides: "The judicial power shall extend to all cases, in law and equity, arising under this Constitu- tion, the laws of the United States, and , treaties made, or which shall be made, under their authority; to all cases affecting ambassadors, other public ministers and consuls; to all cases of admiralty and maritime jurisdiction; to con- troversies to which the United States shall be a party; to controversies between two or more states ; between a state and citizens of another state; between citizens of different states, between citizens of the same state claim- ing lands under grants of different states, and between a state, or the citizens thereof, ami foreign states, citizens or subjects." It will appear, when we come to consider the distribu- tion of this general mass among the different federal 3) NO FEDERAL COMMON LAW 5 courts, that Congress has not exhausted the powers con- ferred upon it by this section, and that it has left many controversies to the state courts which it could have be- stowed upon the federal courts. DERIVATION OF POWERS OF FEDERAL COURTS 2. The federal courts are courts of limited jurisdiction, and derive their powers solely from statute. Except as to the subjects intrusted to the Supreme Court by paragraph 2 of this same section, an act of Congress is necessary before the courts can take cognizance of any of the cases above named. 1 As the national government is a government of dele- gated powers only, its courts are courts of special jurisdic- tion only, and hence the party applying to them for relief must first satisfy them that they have the right to give it. 2 This must be shown by reference to some statute giving the right to the relief sought, for the United States, as a nation, have no common law. NO FEDERAL COMMON LAW 3. There is no. general common law of the United States as a nation, and hence the common-law rights admin- istered by the federal courts arise incidentally in exercising some statutory jurisdiction conferred upon them. 1 U. S. v. Hudson, 7 Cranch, 32, 3 L. Ed. 259 ; In re Wisner, 203 U. S. 455, 27 Sup. Ct. 150, 51 L. Ed. 264 ; Columbus Iron & Steel Co. v. Kanawha & M. R. Co. (C. C.) 171 Fed. 713. See "Courts," Dec. Dig. (Key-No.) 255; Cent. Dig. 792. 2 GRACE v. AMERICAN CENT. INS. CO., 109 U. S. 278, 3 Sup. Ct. 207, 27 L. Ed. 932; Fishback v. Western Union Telegraph Co., 161 U. S. 96, 16 Sup. Ct. 506, 40 L. Ed. 630; McEldowney v. Card (C. C.) 193 Fed. 477, 482. See "Courts," Dec. Dig. (Key-No.) 255, 261; Cent. Dig. 192-794. 6 FEDERAL JURISDICTION (Ch. 1 Before the adoption of the federal Constitution, each state was an independent sovereign, with its own body of laws, the basis of which, as to the original thirteen states, was the English common law. The formation of the na- tional government made no change in this respect, and the organization of the national courts merely resulted in addi- tional tribunals, before whom questions of general jurisdic- tion would come in the states where they sat, and in the cases of which they are given jurisdiction. The federal court of a state is not an alien tribunal. It takes judicial notice of all things of which a court of the same state would take judicial notice, and is in many particulars, to be presently discussed, controlled by the decisions of the state court. The fact that the United States, as a nation, have no common law, was decided very early in its history. In U. S. v. Hudson 3 an attempt was made to prosecute the de- fendant as guilty of a common-law libel, but the court held that the prosecution would not lie. In the later case of Wheaton v. Peters 4 the Supreme Court reiterated that there was no common law of the United States, but that the law of the state was administered by the federal court, including so much of the common law as that state had adopted. This subject has undergone much discussion of recent years, and expressions may be found in judicial opinions intimating that there is a body of common law of the United States as a nation. They are in cases where the federal courts have not felt themselves bound by decisions of courts of the state. Properly construed they do not as- sert a right to administer any federal common law, but merely a right of independent judgment in deciding ques- s 7 Cranch, 32, 3 L. Ed. 259. See "Common Law," Dec. Dig. (Key- No.) 13; Cent. Dig. 11; "Courts," Dec. Dig. (Kev-Xo.) 2G1; Cent. Dig. 792. * 8 Pet. 591, 8 L. Ed. 1055. 3) NO FEDERAL COMMON LAW 7 tions of general interest in which the nation at large is in- terested. Or, to put it in another way the federal courts in such cases are not asserting the existence of any federal common law but merely claiming the right to differ with the courts of, the state on the question what is the common law when that question is one of general importance. As the federal courts were designed to protect nonresidents, this right of independent judgment as to what is the com- mon law is essential to the accomplishment of the object for which they were created. This distinction is well drawn by Mr. Justice Matthews in Smith v. Alabama, 5 where he says: "There is no com- mon law of the United States, in the sense of a national customary law, distinct from the common law of England as adopted by the several states each for itself, applied as its local law, and subject to such alterations as may be provided by its own statutes. * * * A determination in a given case of what that law is may be different in a court of the United States from that which prevails in the judicial tribunals of ,a particular state. This arises from the circumstance that the courts of the United States, in cases within their jurisdiction, where they are called upon to administer the law of the state in which they sit or by which the transaction is governed, exercise an independent though concurrent jurisdiction, and are required to ascer- tain and declare the law according to their own judgment. This is illustrated by the case of New York Cent. R. Co. v. Lockwood, 17 Wall. 357 [21 L. Ed. 627], where the common law prevailing in the state of New York, in ref- erence to the liability of common carriers for negligence, received a different interpretation from that placed upon it by the judicial tribunals of the state; but the law as e SMITH v. ALABAMA, 124 TL S. 465, 8 Sup. Ct. 564, 31 L. Ed. 508. Bee "Common Law," Dec. Dig. (Key-No.) 18; Cent. Dig. 11; "Court*," Dec. Dig. (Key-No.) 261; Cent. Dig. 192. 8 FEDERAL JUBISDICTION (Ch. 1 applied was none the less the law of that state." The language of Mr. Justice Brewer in Western Union Tele- graph Co. v. Call Publishing Co. 6 probably means no more than this. So also his language in Kansas v. Colorado. 7 THE LAW, ADMINISTERED 4. A federal court of original jurisdiction administers the body of law of the state wherein it sits, whenever questions arising under that law come before it in controversies of which it is given jurisdiction. For instance, federal courts are given cognizance of con- troversies between citizens of different states. Such a con- troversy may involve almost any question which might arise in a state court between citizens of the state, whether at common law, in equity, or questions of extraordinary remedies. In the absence of congressional enactments specially bearing upon it, the federal court would try the case substantially as the state court, following the deci- sions of the latter in some instances, and striking out along its own lines in others. Hence it is now necessary to con- sider how far state laws and decisions are binding upon the federal courts, and how far they may be disregarded. SAME LAW OF LOCAL STATE WHEN NO WRIT- TEN FEDERAL LAW APPLICABLE 5. Under section 721, Rev. St. U. S. [U. S. Comp. St. 1901, p. 581], the laws of the several states, except where the Constitution, treaties, or statutes of the United States otherwise require or provide, shall e 181 U. S. 92, 21 Sup. Ct. 561, 45 L. Ed. 765. i 206 U. S. 46, 27 Sup. Ct. 655, 51 L. Ed. 956. See "Courts," Dec. Dig. (Key-Xo.) 261, 359; Cent. Dig. 792, 939-940, 978. THE LAW ADMINISTERED 9 be regarded as rules of decision in trials at com- mon law in the courts of the United States in cases where they apply. Under this provision it becomes necessary to consider what is meant by the "laws of the several states." In those commonwealths deriving their jurisprudence from the English common law, the body of law is either statu- tory or unwritten. The evidence of the latter is the deci- sions of the courts of the state administering it. Hence it becomes necessary to consider how far each of these two sources of state law is applied in the federal courts. SAME STATUTES OF LOCAL STATE 6. The statutes of a state, in so far as they regulate sub- stantive rights, and also in so far as they regulate remedies on the common-law side of the court, are adopted and enforced by the federal courts where they do not conflict with the federal Con- stitution and statutes. Under this principle, state statutes of limitations are enforced by the federal courts in common-law actions. 8 The statute of frauds of a state is enforced in the federal courts. 9 State statutes giving a right of action for dam- ages resulting in death authorize such actions in the fed- eral as well as the state courts. 10 State statutes permitting s Bauserman v. Blunt, 147 U. S. 647, 13 Sup. Ct. 466, 37 L. Ed. 316 ; Security Trust Co. v. Black River Nat. Bank, 187 U. S. 230, 22 Sup. Ct. 52, 47 L. Ed. 147; Newbery v. Wilkinson (C. C.) 190 Fed. 62. See "Courts," Dec. Dig. (Key-No.) 366, 375; Cent. Dig. 38-$. 9 Moses v. Lawrence County Bank, 149 U. S. 298, 13 Sup. Ct 900, 37 L. Ed. 743. See "Courts," Dec. Dig. (Key-No.) 311; Cent. Dig. 972-974- 10 Dennick v. Central R. Co. of New Jersey, 103 U. S. 11, 26 L. Ed. 439 ; Atchison, T. & S. F. R. Co. v. Sowers, 213 U. S. 66, 29 Sup. Ct. 10 FEDERAL JURISDICTION (Ch. 1 a plea of set-off, legal in its nature, authorize the filing of such a plea, in similar cases in the federal courts, and a cross-judgment upon it, but not with the effect of ousting the equitable jurisdiction of the federal courts, or of con- ferring an equitable jurisdiction or allowing equitable de- fenses in such courts on their common-law side, for the distinction between law and equity is sedulously guarded in these courts. 11 State statutes permitting compulsory surgical examina- tions apply to the federal courts, except where their special provisions conflict with some federal statute. 12 But the mode of compelling an adverse party to pro- duce documents is governed by the federal statutes. 18 Statutes of Evidence State statutes of evidence apply in the federal courts, being expressly adopted as to competency of witnesses. 14 Before the enactment of section 858, it had been held that state statutes of evidence were adopted by section 721 as rules of decision in the federal courts on the common-law side. 15 397, 53 L. Ed. 695 ; Southern Pac. Co. v. Da Costa, 190 Fed. 689, 111 C. C. A. 417. See "Courts," Dec. Dig. (Key-No.) 371; Cent. Dig. 975. 11 Scott v. Armstrong, 146 TJ. S. 499, 512, 13 Sup. Ct. 148, 36 L. Ed. 1059; Charnley v. Sibley, 73 Fed. 980, 20 C. C. A. 157; Davis v. Bessemer City Cotton Mills, 178 Fed. 784, 102 C. C. A. 232; Arm- strong Cork Co. v. Merchants' Refrigerating Co., 184 Fed. 199, 107 C. C. A. 93; post, p. 390. See "Courts," Dec. Dig. (Key-No.) 335, 371; Cent. Dig. 902-907y 2 . 12 Union Pac. Co. v. Botsford, 141 U. S. 250, 11 Sup. Ct 1000, 35 L. Ed. 734; Camden & S. R. Co. v. Stetson, 177 U. S. 172, 20 Sup. Ct. 617, 44 L. Ed. 721 ; Hanks Dental Ass'n v. International Tooth Crown Co., 194 U. S. 303, 24 Sup. Ct. 700, 48 L. Ed. 989; post, p. 403. See "Courts," Dec. Dig. (Key-No.) 351; Cent. Dig. 924. is Senate v. Winton Motor Carriage Co. (D. C.) 197 Fed. 777. See "Courts," Dec. Dig. (Key-No.) 351, 376; Cent. Dig. 924, 984. i* U. S. Comp. St. 1901, p. 659, as amended June 29, 1906, 34 Stat. 618, c. 3608. IB Ryan v. Bindley, 1 Wall. 66, 17 L. Ed. 559. See "Courts," Dec. Dig. (Key-No.) 348, 376; Cent. Dig. 922, 984. 6) THE LAW ADMINISTERED 11 This does not mean, however, that state decisions as to common-law rules of evidence are binding on the federal courts. In questions of evidence not statutory, the latter courts decide for themselves what the common-law rule is. 16 By the act of July 2, 1862, 17 an express provision was inserted in the federal statute law, making the state laws as to the competency of witnesses the rules of decision in the federal courts, not only at common law, but in equity and admiralty also. Then, after the agitation in relation to the liberation of the negro race had resulted in their emancipation, it was thought necessary to extend the rules of evidence for their protection; and the consequence was a provision in the appropriation act of July 2, 1864, 18 to the effect that in the courts of the United States there shall be no exclusion of any witness on account of color, nor, in civil actions, be- cause he is a party to or interested in the issue tried. This was amended by the act of March 3, 1865, 19 by adding the clause in reference to executors, administrators, and guardians. Until 1906 section 858 was a combination of these three acts. Its text was as follows : "In the courts of the United States no witness shall be excluded in any action on ac- count of color, or in any civil action because he is a party to or interested in the issue tried: provided, that in ac- tions by or against executors, administrators, or guardians, in which judgment may be rendered for or against them, neither party shall be allowed to testify against the other, 16 Union Pac. Ry. Co. v. Yates, 79 Fed. 584, 25 C. C. A. 103, 40 L. R. A. 553 ; Chicago & N. W. Ry. Co. v. Kendall, 167 Fed. 62, 93 C. C. A. 422, 16 Ann. Cas. 560. But compare Stewart v. Morris, 89 Fed. 290, 32 C. C. A. 203. See "Courts," Dec. Dig. (Key-No.) 348; Cent. Dig. 922. IT 12 Stat. 588, c. 189 (U. S. Comp. St. 1901, p. 659). is 13 Stat. 351, c. 210 (U. S. Comp. St. 1901, p. 659). i 13 Stat. 533, c. 113 (U. S. Comp. St. 1901, p. 659). 12 FEDERAL JURISDICTION (Ch. 1 as to any transaction with, or statement by, the testator, intestate, or ward, unless called to testify thereto by the opposite party, or required to testify thereto by the court. In all other respects the laws of the state in which the court is held shall be the rules of decision as to the com- petency of witnesses in the courts of the United States in trials at common law, and in equity and admiralty." 20 But the amendment of June 29, 1906, cut out all but the last sentence, and rearranged it so as to read as follows: "The competency of a witness to testify in any civil ac- tion, suit or proceeding in the courts of the United States shall be determined by the laws of the state or territory in which the court is held." 21 This renders obsolete a number of decisions based on the variant language of the federal statute and various state statutes. Hence, under section 721, state statutes of evidence gov- ern in the common-law courts in common-law cases, so far as they do not conflict with the other sections contained in title 13., c. 17, of the Revised Statutes, whilst under section 858 they apply to equity and admiralty courts as well, so far as they regulate the competency of witnesses, and do not conflict with other provisions of federal law. 22 The act does not apply to criminal cases by its express language. 23 20 u. S. Comp. St 1901, p. 659. 21 34 Stat. 618, c. 3608; Rowland v. Biesecker, 185 Fed. 515, 106 C. C. A. 615. See "Courts," Dec. Dig. (Key-No.) 376; Cent. Dig. 925, 984. 22 CONNECTICUT MUT. LIFE INS. CO. v. TRUST CO., 112 U. S. 250, 5 Sup. Ct. 119, 28 L. Ed. 708 ; Ex parte Fisk, 113 U. S. 713, 5 Sup. Ct. 724, 28 L. Ed. 1117 ; Goodwin v. Fox, 129 U. S. 601, 9 Sup. Ct. 367, 32 L. Ed. 805. The recent act of February 26, 1913, makes special provision for proof of handwriting in the federal courts, allowing proof by comparison. of different specimens either by witnesses or by the court or jury. See ''Courts," Dec. Dig. (Key- No.) 376; Cent. Dig. 925, 98.$. 23 Logan v. U. S., 144 U. S. 263, 12 Sup. Ct. 617, 36 L. Ed. 429; 7-8) THE LAW ADMINISTERED 13 SAME UNWRITTEN LAW OF LOCAL STATE 7. The federal court adopts not only the statutory law of the state, but its unwritten law as well, in the main. It follows the decisions of the state courts generally, but with some exceptions hereinafter noted. SAME CONSTRUCTION OF STATE STATUTE 8. Under this principle, the federal court adopts the con- struction placed upon the statute of a state by its court of last resort, if rendered before the cause of action arose. In such case the state decision construing the statute en- ters into and becomes part of the statute, as far as the fed- eral court is concerned. 24 Hence, if a state court of last resort holds one of its statutes to be valid as far as the state Constitution is concerned, such construction will be followed by a federal court. 25 This principle applies to constructions of the state Con- stitution as well as to decisions on its Code. 26 It applies to Hendrix v. U. S., 219 U. S. 79, 31 Sup. Ct. 193, 55 L. Ed. 102. See "Courts," Dec. Dig. (Key-No.) 376; Cent. Dig. 984. 24 First Nat. Bank v. Chehalis County, 166 U. S. 440, 17 Sup. Ct. 629, 41 L. Ed. 1069 ; Smiley v. Kansas, 196 U. S. 447, 25 Sup. Ct. 289, 49 L. Ed. 546. See "Courts," Dec. Dig. (Key-No.) 366; Cent. Dig. 954-968. 25 Brown v. New Jersey, 175 U. S. 172, 20 Sup. Ct. 77, 44 L. Ed. 49 ; Ughbanks v. Armstrong, 208 U. S. 481, 28 Sup. Ct. 372, 52 L. Ed. 582. See "Courts," Dec. Dig. (Key-No.) 366; Cent. Dig. 954-968. 20 Wilkes County v. Coler, 180 U. S. 506, 21 Sup. Ct. 458, 45 L. Ed. 642; Stanly County v. Coler, 190 U. S. 437, 23 Sup. Ct. 811, 47 L. Ed. 1126 ; Peters v. Gilchrist, 222 U. S. 483, 32 Sup. Ct 122, 56 L. Ed. 278. See "Courts," Dec. Dig. (Key-No.) 366; Cent. Dig. 956, 957. 14 FEDERAL JURISDICTION (Ch. 1 state constructions of its statutes of limitation. 27 Also to questions relating to municipal or county organizations, their powers and boundaries. 28 The federal courts, under this principle, will follow the state decisions as to the effect of its Sunday laws upon the validity of a contract, or the right of recovery for a tort. 29 Also the construction of a state statute regulating assignments to secure creditors. 80 So as to statutes regulating sales of state lands. 81 So as to powers of state corporations. 32 The above are illustrations of a numerous class in which the state decisions are followed. The reason is the great inconvenience that would result from having two inde- pendent and co-ordinate sets of courts administering the same body of law in different ways. Where no necessity arises of protecting the litigants for whom the federal courts were specially intended, the state decisions will be followed. But when that necessity arises, the federal courts can no , longer permit their hands to be tied, and hence the exceptions to the rule spring from such necessi- 27 Balkam v. Woodstock Iron Co., 154 U. S. 177, 14 Sup. Ct 1010, 38 L. Ed. 953 ; Dibble v. Bellingham Bay Land Co., 163 U. S. 63, 16 Sup. Ct. 939, 41 L. Ed. 72. See "Courts," Dec. Dig. (Key-No.) 366; Cent. Dig. 983. 28 Claiborne County v. Brooks, 111 U. S. 400, 4 Sup. Ct 489, 28 L. Ed. 470; Forsyth v. City of Hammond, 166 U. S. 506, 17 Sup. Ct 665, 41 L. Ed. 1095; Thompson v. Searcey County, 57 Fed. 1030, 6 C. C. A. 674 ; General Oil Co. v. Crain, 209 U. S. 211, 28 Sup. Ct 475, 52 L. Ed. 754. See "Courts," Dec. Dig. (Key-No.) S66; Cent. Dig. 962, 963. 2 Hill v. Hite, 85 Fed. 268, 29 C. C. A. 549; Bucher v. Cheshire R. Co., 125 U. S. 555, 8 Sup. Ct. 974, 31 L. Ed. 795 ; Kuhn v. Fair- mont Coal Co., 215 XL S. 349, 30 Sup. Ct 140, 54 L. Ed. 228. See "Courts," Dec. Dig. (Key-No.) 366; Cent. Dig. 939, 956-964. so May v. Tenney, 148 U. S. 60, 13 Sup. Ct 491, 37 L. Ed, 368. See "Courts," Dec. Dig. (Key-No.) 366; Cent. Dig. 968. si Lockard v. Asher Lumber Co., 131 Fed. 689, 65 C. C. A. 517. See "Courts," Dec. Dig. (Key-No.) 366; Cent. Dig. 958, 959. 32 Anglo-American Land Mortgage & Agency Co. v. Lombard, 132 Fed. 721, 68 C. C. A. 89. See "Courts," Dec. Dig. (Key-No.) 366; Cent. Dig. 962. 7-8) TH E LAW ADMINISTERED 15 ties. Therefore the state construction of the state statute is no longer binding when the question is whether that statute violates the federal statutes or Constitution in other words, when a federal question is involved. 33 In such cases the federal courts must act upon their own con- victions. For the same reason, when a state court has upheld the validity of municipal bonds issued under a state statute, and rights have been acquired on the faith of such decision, federal courts will not feel bound by subsequent decisions denying the validity of such bonds, but will follow the first decision. 34 So, if such bonds when issued had not been pronounced invalid by the state court, the federal court will determine their validity for itself, but it will follow the last state deci- sion upholding the bonds. 85 In considering the validity of municipal bonds, state de- cisions made before the bonds are issued will be followed. 36 But a change in state decisions will be considered bind- ing only as to bonds thereafter issued, and a state decision after their issue which affects their validity is not bind- ing. 87 33 Scott v. McNeal, 154 U. S. 34, 14 Sup. Ct. 1108, 38 L. Ed. 896; Central Trust Co. v. Citizens' St. Ry. Co. of Indianapolis (C. C.) 82 Fed. 1. See "Courts," Dec. Dig. (Key-No.) 366; Cent. Dig. 954- 968. 34 Gelpcke v. Dubuque, 1 Wall. 175, 17 L. Ed. 520. See "Courts," Dec. Dig. (Key-No.) S68; Cent. Dig. 951. 35 Folsom v. Township Ninety-Six, 159 U. S. 611, 16 Sup. Ct. 174, 40 L. Ed. 278; Wilkes County v. Coler, 180 U. S. 506, 21 Sup. Ct 458, 45 L. Ed. 642 ; Wade v. Travis County, 174 U. S. 499, 19 Sup. Ct 715, 43 L. Ed. 1060. See "Courts," Dec. Dig. (Key-No.) 365, 366; Cent. Dig. 951-963. se Lytle v. Lansing, 147 U. S. 59, 13 Sup. Ct 254, 37 L. Ed. 78. See "Courts," Dec. Dig. (Key-No.) 366; Cent. Dig. 354-368. 3 r Douglass v. Pike County, 101 U. S. 677, 25 L. Ed. 968; Knox County v. Ninth Nat. Bank, 147 U. S. 91, 13 Sup. Ct 267, 37 L. Ed. 93 ; Loeb v. Columbia Tp., 179 TJ. S. 472, 21 Sup. Ct. 174, 45 L. Ed. 280. See "Courts," Dec. Dig. (Key-No.) 368; Cent. Dig. 951. 16 FEDERAL JURISDICTION (Ch. 1 In Burgess v. Seligman 38 similar principles were applied as to the liability of a stockholder under a state statute. When the federal court has construed such a statute in the absence of any decision by the state court, it will not feel bound to change its decision on account of a subse- quent state court decision construing the statute differ- ently. STATE LAW OF TITLE TO REAL PROPERTY 9. The federal courts follow the state decisions in relation to title to real property. This is because the state decisions establish rules of property on which titles and rights are acquired, and to unsettle them would introduce uncertainty too great to be endured. 39 They do not, however, feel bound to follow the state decisions as to the construction of a particular devise not depending on any general settled rule of property in the state. 40 as 107 U. S. 20, 2 Sup. Ct 10, 27 L. Ed. 359. See "Courts," Dec. Dig. (Key-No.) 369; Cent. Dig. 953, 953%. 39 LOWNDES v. HUNTINGTON, 153 U. S. 1, 14 Sup. Ct. 758, 38 L. Ed. 615; St. Anthony Falls Water Power Co. v. Board of Wa- ter Com'rs, 168 U. S. 349, 18 Sup. Ct. 157, 42 L. Ed. 497 ; Sauer v. New York, 206 U. S. 536, 27 Sup. Ct. 686, 51 L. Ed. 1176; Seefeld v. Duffer, 179 Fed. 214, 103 C. C. A. 32 ; The Golden Eod (D. C.) 197 Fed. 830. See "Courts," Dec. Dig. (Key-No.) 367; Cent. Dig. 958, 959. 40 Barber v. Pittsburg, Ft W. & C. R. Co., 166 U. S. 83, 17 Sup. Ct. 488, 41 L. Ed. 925. See "Courts," Dec. Dig. (Key-No.) 366, 367; Cent. Dig. 954-960. 11) GENERAL OB COMMERCIAL QUESTIONS 17 CONTRACT OR PERSONAL RELATIONS 10. They follow the state decisions in general, in matters of contract or in personal relations. Hence the state decisions are adopted as to the validity of a state marriage and the rights of married women. 41 Also in questions whether contracts made within the state and operating therein are in accordance with public pol- icy. 42 So as to conditional sales and chattel mortgages. 43 Also as to the liability of a municipal corporation for torts. 44 NOT BOUND BY STATE LAW IN QUESTIONS OF GENERAL OR COMMERCIAL CHARACTER 11. In questions of a general or commercial character un- affected by local statute the federal courts do not feel bound by the state decisions, but act upon their own convictions of what is right. This right in a federal court of deciding for itself ques- tions of general law was laid down as to questions arising 4iMeister v. Moore, 96 U. S. 76, 24 L. Ed. 826; Slaughter v. Glenn, 98 U. S. 242, 25 L. Ed. 122 ; Canal Bank of New Orleans v. Partee, 99 U. S. 325, 25 L. Ed. 390. See "Courts," Dec. Dig. (Key- No.) 366; Cent. Dig. 054-968. 42 Missouri, K. & T. Trust Co. v. Kruinseig, 172 U. S. 351, 19 Sup. Ct. 179, 43 L. Ed. 474 ; Hartford F. Ins. Co. v. Chicago, M. & St. P. R. Co., 175 U. S. 91, 20 Sup. Ct. 33, 44 L. Ed. 84. See "Courts," Dec. Dig. (Key-No.) 366; Cent. Dig. 954-968. 43 Bryant v. Swofford Bros. Dry Goods Co., 214 U. S. 279, 29 Sup. Ct. 015, 53 L. Ed. 997. See "Courts," Dec. Dig. (Key-No.) 366; Cent. Dig. 954-968. 44 Clarke v. Atlantic City (C. C.) 180 Fed. 598. See "Courts," Dec. Dig. (Key-No.) 366; Cent. Dig. 954-968. HUGHES FED.PB.(2o ED.) 2 18 FEDEBAL JURISDICTION (Ch. 1 under the law merchant in the early case of Swift v. Ty- son. 45 Such a right would appear essential in order for a federal court to guard the interests of nonresidents against the possibility of state decisions laying down rules which would work in favor of the resident. The law merchant being common to all civilized nations, a federal court could not tie itself down to the theory of treating it as a local rule of action. 46 The construction of insurance contracts is also a ques- tion of general law, as to which the federal courts feel at liberty to form their own opinions. 47 The liability of common carriers, the validity of stipula- tions in their bills of lading, the measure of damages in suits against them, are also matters of general interest, as to which the federal courts act independently, except in so far as such matters are validly regulated by state statute. 49 The federal courts also consider the law of master and servant as one of general interest, and not of mere local concern; and hence they decide for themselves whether a given case is a case of fellow service or of liability, re- gardless of the state decisions and in the absence of stat- ute. As the federal decisions on the subject differ widely 45 16 Pet. 1, 10 L. Ed. 865. See "Courts," Dec. Dig. (Key-No.) I 372; Cent. Dig. 977-979. 46 Brooklyn City & N. R. Co. v. National Bank of the Republic, 102 U. S. 14, 26 L. Ed. 61 ; Phipps v. Harding, 70 Fed. 468, 17 C. C. A. 203, 30 L. R. A. 513 ; Dygert v. Trust Co., 94 Fed. 913, 37 C. C. A. 389; Forrest v. Safety Banking & Trust Co. (C. C.) 174 Fed. 345. See "Courts," Dec. Dig. (Key-No.) 372; Cent. Dig. 977-979. 47 Washburn & Moen Mfg. Co. v. Reliance M. Ins. Co., 179 U. S. 1, 15, 21 Sup. Ct 1, 45 L. Ed. 49; Gordon v. Ware Nat Bank, 132 Fed. 444, 65 C. C. A. 580, 67 L. R. A. 550. See "Courts," Dec. Dig. (Key-No.) 372; Cent. Dig. 977-979. 48 Myrick v. Michigan Cent. Ry. Co., 107 U. S. 102, 1 Sup. Ct. 425, 27 L. Ed. 325 ; Lake Shore & M. S. R. Co. v. Prentice, 147 U. S. 101, 13 Sup. Ct. 261, 37 L. Ed. 97; New York Cent. R. Co. v. Lockwood, 17 Wall. 357, 21 L. Ed. 627. See "Courts," Dec. Dig. (Key-No.) 372; Cent. Dig. 977-979. 11) GENERAL OR COMMERCIAL QUESTIONS 19 from those of some states, this makes the selection of the forum a very important step in many of these cases. 49 The federal courts follow their own judgment as to the measure of damages. 50 Also as to questions of negli- gence. 51 49 Baltimore & O. R. Co. v. Baugh, 149 U. S. 368, 13 Sup. Ct. 914, 37 L. Ed. 772; Snipes v. Southern R. Co., 166 Fed. 1, 91 C. C. A. 593; Illinois Cent. R. Co. v. Hart, 176 Fed. 245, 100 C. C. A. 49. See "Courts," Dec. Dig. (Key-No.) 372; Cent. Dig. 977-979. 50 Western Union Tel. Co. v. Burris, 179 Fed. 92, 102 C. C. A. 386; Norfolk & P. Traction Co. v. Miller, 174 Fed. 607, 98 C. C. A. 453 ; Woldson v. Larson, 164 Fed. 548, 90 C. C. A. 422 ; H. T. Smith Co. v. Minetto-Meriden Co. (C. C.) 168 Fed. 777. See "Courts," Dec. Dig. (Key-No.) 366; Cent. Dig. 977-979. 51 Force v. Standard Silk Co. (C. C.) 160 Fed. 992; Id., 170 Fed. 184, 95 C. C. A. 286 ; Snare & Triest Co. v. Friedman, 169 Fed. 1, 94 C. C. A. 369, 40 L. R. A. (N. S.) 367. See "Courts," Dec. Dig. (Key- No.) 366; Cent. Dig. 977-979. 20 DISTRICT COURT CRIMINAL JURISDICTION (Ch. 2 CHAPTER II THE DISTRICT COURT ITS CRIMINAL JURISDICTION AND PRACTICE 12. The Federal Judicial System. 13. The District Court. 14. Criminal Jurisdiction of the District Courts. 15. Criminal Procedure. 16. Procedure by Complaint 17. United States Commissioners. 18. Place of Trial Warrant of Removal. 19. Same Proper Place. THE FEDERAL JUDICIAL SYSTEM 12. The judicial power of the United States is vested in one Supreme Court, established by the Constitution, and various inferior courts organized by Congress under the authority of the Constitution. The Original United States Courts, and Their Evolution into the Present System Article 3, 1, of the Constitution, provides that the judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as Congress may from time to time ordain and establish. It thus ap- pears that the only court established by the Constitution is the Supreme Court. The others are creatures of congres- sional action. Acting under this authority, Congress, by the judiciary act of 1789, established the first federal courts, and dis- tributed the jurisdiction among them. They divided the United States, as then constituted, into judicial districts, no district containing more than one state, and established in each district a district court and a circuit court. Since then, as the country grew, additional districts and circuits 12) THE FEDERAL JUDICIAL SYSTEM 21 have been established. This original act, with subsequent enlargements, is now embodied in the Judicial Code of March 3, 1911, in effect January 1, 1912. 1 These district and circuit courts were given by the original act of 1789 all of the original jurisdiction which the United States courts then exercised, except the small amount conferred upon the Supreme Court. Until 1891 the circuit court had some appellate supervision over the district court. Under the original act, a judge, known as the district judge, was to be chosen, who was to hold both the district court and the circuit court in his district, except in cases of appeals from his own decisions in the district court. 2 In order to provide for this case, and also for holding the circuit court in cases of special interest, the nation was divided into larger units, known as circuits; and one jus- tice of the United States Supreme Court was assigned to each of these circuits. This Supreme Court justice could hold the circuit court of any district contained in his cir- cuit. He could sit with the district judge; or, in cases of appeals from the district court to the circuit court, he it was who heard and disposed of those appeals. This con- tinued to be the system until just after the Civil War, when an additional judge, known as a circuit judge, was provided for each circuit; the main object being to relieve the justices of the Supreme Court from the labor of hold- ing the circuit court, as the growth of business in the Su- preme Court had rendered it impracticable for them to continue to do much circuit court work. Then by the act of March 3, 1891, establishing the circuit courts of ap- peals, 3 additional circuit judges were established. This scheme of distributing the main federal original jurisdic- tion between the district and circuit courts, the district 1 36 Stat. 1087 (U. S. Comp. St. Supp. 1911, p. 128). 2 Section 551, Rev. St. (U. S. Comp. St 1901, p. 446). s U. S. Comp. St 1901, p. 547. 22 DISTRICT COURT CRIMINAL JURISDICTION (Ch. 2 court having in the main the cases of special jurisdiction, and the circuit court the cases of more usual character, continued until 1911. By that time it had been increas- ingly realized that the great mass of the work in the cir- cuit courts was being done by the district judges. Com- mittees and commissions had been for several years en- gaged in rearranging and codifying. The result was first the Penal Code of March 4, 1909, in effect January 1, 1910,* and next the Judicial Code of March 3, 1911, in effect Janu- ary 1, 1912, 5 which abolished the circuit court entirely and amalgamated its jurisdiction with that of the district court, thus making the latter practically the sole repository of the jurisdiction in which the bar at large is interested. This latter act codifies and includes the first thirteen chapters of the judiciary title of the Revised Statutes, 6 chapter 15 on juries, 7 and chapters 20 and 21 relating to the court of claims. 8 Chapters 14 on district attorneys, marshals and clerks, 16 on fees, 17 on evidence, 18 on procedure and 19 on limitations are yet to be codified. There are also many courts of special jurisdiction which have been established since the original act. One of these is the court of claims, established in 1855. 9 There are also the courts of the District of Columbia and the courts of the territories; and then there are the courts of appellate jurisdiction, consisting of the circuit courts of appeals, es- tablished by the act of March 3, 1891, 10 and the Supreme Court, which, as already mentioned, was established by the Constitution itself. It will now be necessary to review the organization, ju- risdiction, and practice of these several courts. *35 Stat 1088 (U. S. Comp. St. Supp. 1911, p. 1588). 5 36 Stat 1087 (U. S. Comp. St Supp. 1911, p. 128). e Title 13 (U. S. Comp. St. 1901, pp. 306-597). 7 Id. pp. 623-630. 8 U. S. Comp. St. 1901, pp. 729-764. Sections 1049-1093, Rev. St. (U. S. Comp. St. 1901, p. 729 et seq.). 10 U. S. Comp. St. 1901, p. 546. 13) THE COURT 23 (j , , THE DISTRICT COURT 13. The district courts are courts of original jurisdiction, each having territorial supervision over an area known as a judicial district, and held by a judge known as a district }udge. The District Court, and Its Personnel This court is held by the district judge, who is required to live within his district. The districts being denned largely by state lines, the territorial jurisdiction of the dis- trict courts follows the lines as laid down by the act of the states. When two states agree as to a boundary line which has been in dispute, and the effect of such agreement is to throw into one state territory which had been in another, the corresponding district court extends over such new territory. 11 The statutes contain various provisions for holding the district court, if for any reason the district judge of that district is prevented from sitting. These provisions will be found in sections 13 to 23 of the Judicial Code. The first of these sections applies in terms only to cases of disability of the district judge, and apparently does not apply to a case where there is a vacancy in the office. 12 The only provi- sions expressly applying to vacancies are sections 22 and 23. Apparently, however, the language of section 14, which allows the designation of another judge in case of accumulation of business, would permit such designation, not only when business has accumulated on account of an unusual press of litigation, or on account of disability, but also where there is a vacancy. In any event, if the ap- 11 In re Devoe Mfg. Co., 108 U. S. 401, 2 Sup. Ct 894, 27 L. Ed. 764. See "Courts," Dec. Dig. (Key-No.) 419; Cent. Dig. 1120. 12 Ball v. U. S., 140 U. S. 118, 11 Sup. Ct. 761, 35 L. Ed. 377. See "Courts," Dec. Dig. (Key-No.) 421; Cent. Dig. 1121. 24 DISTRICT COURT CRIMINAL JURISDICTION (Ch. 2 pointment of another judge to hold court in case of ac- cumulation of business is made, and there is nothing on the record to show that there is an actual vacancy in the office, the act of a judge so holding court could not be questioned; for he would be a judge de facto, and his acts would be binding upon litigants. 13 There is also a provision contained in section 20 of the Judicial Code providing for the case where a district judge is so interested in a suit that it would be improper for him to sit, or is a material witness. General Nature of the Jurisdiction of the District Court As a rule, the jurisdiction conferred upon the district court was of an exceptional or special character ; the great mass of civil controversies of which the federal courts are given original jurisdiction having been conferred upon the circuit court. But now its jurisdiction is very extensive, and covers cases cognizable both in criminal courts, the common-law courts, and the chancery courts, to say noth- ing of the courts of extraordinary jurisdiction, like the ad- miralty and bankruptcy courts. CRIMINAL JURISDICTION OF THE DISTRICT COURTS 14. The second clause of section 24 of the Judicial Code gives the district courts jurisdiction of all crimes and offenses cognizable under the authority of . the United States committed within their respec- tive districts or upon the high seas. In this connection it must be remembered that there is no such thing as a common-law offense against the United States, but offenses are statutory only; and, in order to is McDowell v. TJ. S., 159 U. S. 596, 16 Sup. Ct. Ill, 40 L. Ed. 271. See "Judges," Dec. Dig. (Key-No.) 6; Cent. Dig. 11, 12. 14) JURISDICTION OF THE COURTS 25 sustain a prosecution under this section, some act of Con- gress other than section 24 must be specified which creates such an offense. 14 Crimes against the United States are nearly all con- tained in the Penal Code of March 4, 1909. 15 Most of these statutes punishing crimes against the per- son applied to lands or reservations under the exclusive jurisdiction of the United States, or, in case of offenses on the water, to such waters as are not only within the ad- miralty and maritime jurisdiction of the United States, but are also out of the jurisdiction of any particular state. Un- der this provision, crimes of this nature committed in a harbor, or in a body of water bounded on each side by the same state, are not cognizable by the federal courts, but the punishment of such offenses is left to the state courts. 16 It had also been held that the statutes giving the federal courts jurisdiction over offenses committed on the high seas apply to the Great Lakes, the Supreme Court holding that in the proper sense of the terra the Great Lakes are high seas, just as much as the Mediterranean or the Baltic. This was decided in U. S. v. Rodgers, 17 which was a case where the offense was committed in 1887, and the decision was rendered in 1893. Prior to the decision in that case, i* Pettibone v. U. S., 148 U. S. 197, 13 Sup. Ct. 542, 37 L. Ed. 419; U. S. v. Eaton, 144 U. S. 677, 12 Sup. Ct. 764, 36 L. Ed. 591 ; U. S. v. Martin (D. C.) 176 Fed. 110. See "Criminal Law," Dec. Dig. (Key- No.) 89; Cent. Dig. 128. 1535 Stat. 1088 (U. S. Comp. St. Supp. 1911, p. 1588). "IT. S. v. ROGERS (D. C.) 46 Fed. 1; SAME v. RODGERS, 150 U. S. 249, 14 Sup. Ct. 109, 37 L. Ed. 1071 ; Ex parte Ballinger (D. C.) 5 Hughes, 387, 88 Fed. 781; U. S. v. Peterson (D. C.) 64 Fed. 145; U. S. v. Bevans, 3 Wheat. 336, 4 L. Ed. 404; Wynne v. U. S., 217 U. S. 234, 30 Sup. Ct. 447, 54 L. Ed. 748 ; Ex parte O'Hare, 179 Fed. 662, 103 C. C. A. 220. See "Criminal Law," Dec. Dig. (Key-No.) 97; Cent. Dig. 183-190. IT U. S. v. RODGERS, 150 U. S. 249, 14 Sup. Ct. 109, 37 L. Ed. 1071. See "Criminal Law," Dec. Dig. (Key-No.) 97; Cent. Dig. 183-190. 26 DISTRICT COURT CRIMINAL JURISDICTION (Ch. 2 however, Congress, by the act of September 4, 1890, 18 had expressly provided for an extension of the criminal juris- diction of the federal courts over the Great Lakes and their connecting waters. In the Penal Code the rulings of the courts were adopted, and the subject made clear by the in- sertion of a section covering the subject. 19 It is impossible within the limits of this treatise to dis- cuss the statutes defining the various crimes against the United States. It is not the national policy to create of- fenses cognizable by the United States courts, except in so far as it may be necessary to see to the proper execution of the federal laws. The great mass of offenses are of- fenses against the states, and not the United States; and the offenses against the latter relate principally to offenses on the high seas which would not fall under the authority of any single state, to offenses committed on lands under the exclusive jurisdiction of the United States, like forts and military reservations, and to offenses against the cus- toms and revenue laws, the pension laws, the postal laws, and the national banking laws. It is essential to the prop- er administration ,of the government that these offenses should be cognizable by the federal courts. Under article 1, 8, cl. 17, of the Constitution, Congress is given the power of exclusive legislation over the seat of government, and over all places purchased by consent of the Legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and all other needful buildings. Under this clause the jurisdiction of the United States courts over crimes committed on such places is nec- essarily exclusive, 20 but even under this clause the letter of the Constitution is followed, and, in case of land pur- is U. S. Comp. St 1901, p. 3627. i Penal Code, 272 (U. S. Comp. St. Supp. 1911, p. 1671). 20 Sharon v. Hill (C. C.) 24 Fed. 726; Ft. Leavenworth R. Co. v. Lowe, 114 U. S. 525, 5 Sup. Ct. 995, 29 L. Ed. 264; U. S. v. Press Publishing Co., 219 U. S. 1, 31 Sup. Ct. 212, 55 L. Ed. 65, 21 Ann. 14) JURISDICTION OF THE COURTS 27 chased by the United States without the assent of the state, the jurisdiction is not necessarily exclusive. 21 In speaking of offenses exclusively cognizable by the United States courts, the offense, in so far as it is an of- fense against the federal law, is necessarily exclusively punishable by the federal courts. 22 But in many cases the same act or state of facts may be an offense both against the state laws and the federal laws, and in such case the offender may be prosecuted in both courts, though the first court that arrests him would not permit interference by the other court. 23 The offenses created and defined by the federal statutes in reference to federal buildings or other lands owned by the United States or under their exclusive jurisdiction are substantially the usual offenses punishable in the state courts. By way of extra precaution, it is pro- vided by section 289 of the Penal Code that anything which is an offense under the law of the state in which such place is situated shall be an offense against the United States and punishable as it is by the state law in force at the time of the enactment of that section, which went into effect on January 1, 1910. 2 * Cas. 942; Judicial Code, 256 (U. S. Comp. St. Supp. 1911, p. 233). See "Criminal Law," Dec. Dig. (Key-No.) 97; Cent. Dig. 183-190. 21 U. S. v. Perm (C. C.) 48 Fed. 669. See "Criminal Law," Dec. Dig. (Key-No.) 97; Cent. Dig. 183-190. 22 Thomas v. Loney, 134 U. S. 372, 10 Sup. Ct. 584, 33 L. Ed. 949; Fitzgerald v. Green, 134 U. S. 377, 10 Sup. Ct. 586, 33 L. Ed. 951; Ohio v. Thomas, 173 U. S. 276, 19 Sup. Ct 453, 43 L. Ed. 699 ; Ex parte Roach (D. C.) 166 Fed. 344; Commonwealth v. Kitchen, 141 Ky. 655, 133 S. W. 586. See "Criminal Law," Dec. Dig. (Key-No.) 95; Cent. Dig. 161-175. 23 Penal Code, 326 (U. S. Comp. St. Supp. 1911, p. 1685); Cross v. North Carolina, 132 U. S. 131, 10 Sup. Ct 47, 33 L. Ed. 287; Crossley v. California, 168 U. S. 640, 18 Sup. Ct. 242, 42 L. Ed. 610; Callahan v. U. S., 195 Fed. 924, 115 C. C. A. 612. See "Criminal Law," Dec. Dig. (Key-No.) 100; Cent. Dig. 114. 24 U. S. v. Press Publishing Co., 219 U. S. 1, 31 Sup. Ct. 212, 55 L. Ed. 65, 21 Ann. Cas. 942. See "Criminal Law," Dec. Dig. (Key- No.) { 95; Cent. Dig. 183-190. 28 DISTRICT COURT CRIMINAL JURISDICTION (Ch. 2 CRIMINAL PROCEDURE 15. Criminal proceedings in the federal courts are insti- tuted (a) By complaint before an examining officer, looking to an indictment; (b) By indictment or information, as the initial step. PROCEDURE BY COMPLAINT 16. It is provided that, upon complaint under oath before them, a justice or judge of the United States, a United States commissioner, and certain state offi- cers of the state wherein the offender is found, may have the offender arrested and imprisoned or bailed, as the case may be, for trial before such court of the United States as by law has cogni- zance of the offense, under procedure agreeable to the usual mode of process against offenders in the state in which the procedure is being con- ducted. UNITED STATES COMMISSIONERS 17. The officers before whom offenders are usually brought under this procedure are the United States com- missioners. These officers have various powers, similar on the criminal side to the ordinary magis- trates in the judicial systems of the states. Section 1014, Rev. St., 25 also provides that in such case the procedure shall be agreeably to the usual mode of pro- 26U. S. Comp. St. 1901, p. 716. 15-17) CRIMINAL PROCEDURE 29 cess against offenders in such state. The usual procedure under this section is by complaint on oath before some of the above officers. The fourth amendment to the Consti- tution provides that no warrants shall issue, but upon prob- able cause, supported by oath or affirmation, and particu- larly describing the place to be searched, and the persons or things to be seized. Under these constitutional and statutory provisions, it has been held that a complaint must be on oath, of personal knowledge, and not merely on an oath or affirmation of mere belief. 29 The procedure in such case follows the usual practice of the state, as re- quired by the statute, and the officer issuing the warrant proceeds as the corresponding state officer would pro- ceed. 27 The procedure by indictment or information, in cases where an information lies, is also very common and well known. 28 The Warrant On complaint duly sworn to as above described, the offi- cer issues a warrant of arrest to bring the prisoner before him at a given time and place. It is not necessary, how- ever, that the warrant should be returned before the officer issuing it, for by the act of August 18, 1894, 29 it must be returned by the marshal before the nearest judicial officer who has jurisdiction for a hearing, commitment, or taking of bail; the object of this act being to prevent excessive 26U. S. v. Burr, Fed. Cas. No. 14,692; U. S. v. Collins (D. C.) 79 Fed. 65 ; Rice v. Ames, 180 U. S. 371, 21 Sup. Ct. 406, 45 L. Ed. 577. See "Criminal Law," Dec, Dig. (Key-No.) 209; Cent. Dig. 415- 420. 2TU. S. v. Sauer (D. C.) 73 Fed. 671; U. S. v. Dunbar, 83 Fed. 151, 27 C. C. A. 488 ; U. S. v. Zarafonitis, 150 Fed. 97, 80 C. C. A. 51, 10 Ann. Cas. 290 ; Zarafonitis v. U. S., 156 Fed. 1023, 84 C. C. A. 680. See "Courts," Dec. Dig. (Key-No.) 837; Cent. Dig. 908; "Criminal Law," Dec. Dig. (Key-No.) 209; Cent. Dig. 415-420. 28 U. S. v. Baumert (D. C.) 179 Fed. 735. See "Criminal Law," Dec. Dig. (Key-No.) 211; Cent. Dig. 420-431; "Indictment and Information," Dec. Dig. (Key-No.) 3, 9, 36. 2 U. S. Comp. St. 1901, p. 717. 30 DISTRICT COURT CRIMINAL JURISDICTION (Ch. 2 costs by having commissioners issue warrants for parties at great distances, thereby multiplying both commission- er's and marshal's fees. The warrant must, as required by amendment 4 to the Constitution, particularly describe the person to be ar- rested. Consequently a warrant not conforming to this re- quirement would be illegal. As an illustration, in West v. Cabell 30 the warrant was against James West. Under it the officer arrested Vandy West. The warrant was held to be void, though testimony was adduced to show that Vandy West was really the man who was in the mind of the commissioner when the warrant was issued. A seal is not essential to the validity of the warrant. If there is no statute requiring it, and the officer issuing it has no seal, but it is merely signed, the warrant is valid. 81 United States Commissioners When the warrant has been issued and the accused ar- rested, he is brought before the committing officer for a preliminary examination. The officer before whom he is usually brought in such case is now known as a United States commissioner. By the act of May 28, 1896, 82 the office of circuit court commissioner was abolished, and that of United States commissioner established. This offi- cer has various powers, similar on the civil side to those of a notary public, and on the criminal side to those of a mag- istrate. His powers are summarized in U. S. v. Allred S3 as follows : "The duties of these officers are prescribed by law, and they are, in general, to issue warrants for offenses so 153 TJ. S. 78, 14 Sup. Ct. 752, 38 L. Ed. 643. See, also, U. S. v. Doe (D. C.) 127 Fed. 982; Todd v. U. S., 158 U. S. 278, 15 Sup. Ct. 889, 39 L. Ed. 982. See "Criminal Law," Dec. Dig. (Key-No.) 218; Cent. Dig. 444-453. si Starr v. U. S., 153 U. S. 614, 14 Sup. Ct 919, 38 L. Ed. 841. See "Criminal Law," Dec. Dig. (Key-No.) 218; Cent. Dig. 448. 32 u. S. Comp. St. 1901, p. 499. 33 155 U. S. 591, 15 Sup. Ct. 231, 39 L. Ed. 273. See "United States Commissioners," Dec. Dig. (Key-No.) 4-1 ; Cent. Dig. S. 15-17) CRIMINAL PROCEDURE 31 against the United States; to cause the offenders to be ar- rested and imprisoned, or bailed, for trial, and to order the removal of offenders to other districts (Rev. St. 1014 [U. S. Comp. St. 1901, p. 716]) ; to hold to security of the peace and for good behavior (section 727 [U. S. Comp. St. 1901, p. 584]); to carry into effect the award or arbi- tration, or decree of any consul of any foreign nation; to sit as judge or arbitrator in such differences as may arise between the captains and crews of any vessels belonging to the nations whose interests are committed to his charge; and to enforce obedience by imprisonment until such award, arbitration, or decree is complied with (section 728) ; to take bail and affidavits in civil causes (section 945 [U. S. Comp. St. 1901, p. 694]); to discharge poor con- victs imprisoned for nonpayment of fines (section 1042 [U. S. Comp. St. 1901, p. 724]); to take oaths and acknowledg- ments (section 1778 [U. S. Comp. St. 1901, p. 1211]); to institute prosecutions under the laws relating to crimes against the elective franchise, and civil rights of citizens, and to appoint persons to execute warrants thereunder (sections 1982-1985 [U. S. Comp. St. 1901, pp. 1264, 1265]); to issue search warrants authorizing internal rev- enue officers to search premises, where a fraud upon the revenue has been committed (section 3462 [U. S. Comp. St. 1901, p. 2283]) ; to issue warrants for deserting foreign seamen (section 5280 [U. S. Comp. St. 1901, p. 3598]); to summon masters of vessels to appear before him and show cause why process should not issue against such vessel (section 4546 [U. S. Comp. St. 1901, p. 3087]); to issue warrants for and examine persons charged with being fugi- tives from justice (sections 5270 and 5271 [U. S. Comp. St. 1901, pp. 3591, 3593]); and to take testimony and proofs of debt in bankruptcy proceedings (sections 5003 and 5076)." His duties under section 1014 are assimilated to those of a state committing magistrate, and in holding the prelim- 32 DISTEICT COURT CRIMINAL JURISDICTION (Ch. 2 inary examination of the accused he acts as a state magis- trate would act under the state practice. 34 In this respect, however, he is in no sense holding a court of the United States, but is acting simply as a committing magistrate. 35 As the Constitution requires that no warrant shall issue but upon probable cause, it becomes his duty, in holding such examination, and in issuing the warrant in the first instance, to examine into the question whether there is probable cause to believe that the accused has committed any offense. In making this inquiry, he may examine into the facts, and in fact it is usually necessary for him to do so, in order to decide whether the prisoner is entitled to bail. 36 Under section 1015 of the Revised Statutes, the prisoner is entitled to bail in all except capital cases, and the United States commissioner may decide whether to admit him to bail or not ; and this he may do either when holding an examination under a warrant issued on com- plaint, or when the other procedure by indictment has been taken, and the prisoner has been arrested on the in- dictment. 37 If bail is wanted in capital cases, the commis- sioner has no power to take it, but in such cases only some federal judge has the power to take bail. The preliminary examination is a valuable right, and the s* U. S. v. Martin (D. C.) 17 Fed. 150 ; U. S. v. Greene (D. C.) 100 Fed. 941; Greene v. Henkel, 183 U. S. 249, 22 Sup. Ct. 218, 46 L. Ed. 177. See "United States Commissioners," Dec. Dig. (Key-No.) 7; Cent. Dig. 3. 35 Todd v. U. S., 158 U. S. 278, 15 Sup. Ct. 889, 39 L. Ed. 982; U. S. v. Tom Wan (D. C.) 160 Fed. 207; Tom Wan v. IT. S., 163 Fed. 1008, 90 C. C. A. 178. See "United States Commissioners," Dec. Dig. (Key-No.) 7; Cent. Dig. 3. 36 IT. S. v. Smith (C. C.) 17 Fed. 510; U. S. v. Hughes (D. C.) 70 Fed. 972. See "Bail," Dec. Dig. (Key-No.) 47; Cent. Dig. 174. sr u. S. v. Sauer (D. C.) 73 Fed. 671; Hoeffner v. U. S., 87 Fed. 185, 30 C. C. A. 610; Id., 87 Fed. 1005, 31 C. C. A. 594; U. S. v. Louis (C. C.) 149 Fed. 277. See "Sail," Dec. Dig. (Key-No.) 47; Cent. Dig. 174. 18-19) PLACE OF TBIAL WARRANT OP REMOVAL 33 prisoner can have it either on prosecutions instituted by complaint or by indictment. 38 If the commissioner thinks that there is probable cause to believe that the accused has committed the crime with which he is charged he may commit him for trial, a writ being necessary in such case. 39 Under the sixth amendment to the Constitution, the ac- cused is entitled, among other^things, to have compulsory process for obtaining witnesses in his favor. Pursuant to this provision, section 879 of the Revised Statutes 40 gives the commissioner who holds this examination the right to require the defendant's witnesses, in case of offenses on the high seas or elsewhere within the admiralty and mari- time jurisdiction of the United States, to be recognized to appear at that place where the accused will need their tes- timony. PLACE OF TRIAL WARRANT OF REMOVAL 18. To insure the constitutional guaranty of a speedy and public trial by an impartial jury of the state and district wherein the crime shall have been com- mitted, it is provided that, where an offender is committed in any district other than that where the offense is to be tried, the judge of the district where he is committed shall issue a warrant to re- move him to the district where the trial is to be had. 38 U. S. v. Farrington (D. C.) 5 Fed. 343. See "Criminal Law," Dec. Dig. (Key-No.) 223; Cent. Dig. 463-465. soErwin v. U. S. (D. C.) 37 Fed. 470, 2 L. R. A. 229; U. S. v. Harden (D. C.) 10 Fed. 802. See "Criminal Law," Dec. Dig. (Key- No.) 241; Cent. Dig. 458, 501-508. *o U. S. Comp. St. 1901, p. 668. HUGHES FED.PB.(2o ED.) 3 34 DISTRICT COURT CRIMINAL JURISDICTION (Ch. 2 SAME PROPER PLACE 19. The proper place for the trial of offenses committed within any district is in that district, and the prop- er place for the trial of offenses committed on the high seas or outside of any district at all is the district where the offender is found or where he is first brought. Warrant of Removal The sixth amendment to the Constitution provides that the accused shall enjoy the right to a speedy and public trial by an impartial jury of the state and district wherein the crime shall have been committed. In conformity to this provision, section 1014 also provides that, where an offender is committed in any district other than that where the offense is to be tried, the judge of the district where he is committed shall issue a warrant to remove him to the district where the trial is to be had. This warrant of re- moval must show on its face that such a trial of some of- fense is to be had, though it is not very technical in its form. For instance, in U. S. v. Horner, 41 the warrant transferring him to another district stated that the prisoner was to be tried "on such counts of the indictment as he can be legally tried on in said district." There was at least one count in the indictment which showed jurisdiction in the court of the district to try him, and it was held that the warrant was sufficiently definite. When a judge is requested under this provision to issue such a warrant of transfer, he acts not merely in a minis- terial capacity, but in a judicial one; and he may examine into the case, certainly so far as to inspect the proceedings 4i (D. C.) 44 Fed. 677; Horner v. U. S., 143 U. S. 207, 12 Sup. Ct 407, 36 L. Ed. 126. Sec "Criminal Law," Dec. Dig. (fey-No.) 242; Cent. Dig. 509, 510. 18-19) PLACE OF TRIAL WARRANT OF REMOVAL 35 and see that the court to which he is asked to move >he prisoner has jurisdiction. As to the question of fact, a cer- tified copy of the indictment is prima facie, but not con- clusive, evidence, and would justify him in sending the prisoner on, though he would have the right, in his discre- tion, to hear additional evidence if he saw fit. 42 When an application is made by the authorities of another district to a judge to remove the prisoner to such district for trial, it ought to show that proceedings have been instituted in such district, though not necessarily an indictment. 43 The prisoner is entitled to notice of the time when the judge is to examine into the question of sending him to another dis- trict, but before any removal an examination or an indict- ment in one of the two districts is necessary. 44 A removal to the District of Columbia is authorized by the act. 45 * The Place of Trial Article 3, 2, of the Constitution, provides that the trial shall be held in the state where the crime shall have been committed, but when not committed within any state the trial shall be at such place or places as the Congress may by law have directed; and the sixth amendment provides that the trial shall be in the state and district wherein the crime shall have been committed. The provisions of these amendments apply only to trials in the federal courts, not * 2 Price v. McCarty, 89 Fed. 84, 32 C. C. A. 162; In re Wood (D. C.) 95 Fed. 288; U. S. v. Greene (D. C.) 100 Fed. 941; Greene v. Henkel, 183 U. S. 249, 22 Sup. Ct. 218, 46 L. Ed. 177 ; Price v. Hen- kel, 216 U. S. 488, 30 Sup. Ct. 257, 54 L. Ed. 581. See "Criminal Law," Dec. Dig. (Key-Xo.) 242; Cent. Dig. 509. 510. "U. S. v. Price (D. C.) 84 Fed. 636; Greene v. Henkel, 183 U. S. 249, 22 Sup. Ct 218, 46 L. Ed. 177. See 'Criminal Laic," Dec. Dig. (Kcy-Xo.) 242; Cent. Dig. 509, 510. " U. S. v. Karlin (D. C.) 85 Fed. 963; U. S. v. Yarborough (D. C.) 122 Fed. 293. See "Criminal Law," Dec. Dig. (Key-Xo.) 242; Cent. Dig. 509, 510. 45 Benson v. Henkel, 198 U. S. 1, 25 Sup. Ct 569, 49 L. Ed. 919. See "Criminal Law," Dec. Dig. (Key-No.) 242; Cent. Dig. 509, 510. 36 DISTRICT COURT CRIMINAL JURISDICTION (Ch. 2 to proceedings in the state courts, and they apply only to strictly criminal proceedings, not to contempt proceed- ings. 46 In furtherance of these constitutional provisions, section 40 of the Judicial Code provides that the trial of capital offenses shall be had in the county where the of- fense was committed, where it can be done without great inconvenience. Section 41 provides that the trial of of- fenses committed on the high seas or elsewhere, out of the jurisdiction of any particular state or district, shall be in the district where the offender is found, or into which he is first brought; and section 42 provides that where an offense is begun in one judicial circuit, and completed in another, it shall be deemed to have been committed in either, and may be dealt with in either. Under these con- stitutional and statutory provisions, the proper place for the trial of offenses committed within any district is that district. It may be sometimes a difficult question to decide just where an offense has been committed. That depends upon the character of the offense, and the proper construction of the statute creating it. To illustrate, it was held in Re Palliser 47 that a New York party who wrote to a Con- necticut postmaster, offering to buy stamps on credit, against the statute forbidding it, committed his offense in Connecticut, where the letter was received, and the Con- necticut district was the proper place where he should be tried. So, too, in U. S. v. Homer, 48 where a lottery ticket 46 Nashville, C. & St. L. R. Co. v. Alabama, 128 U. S. 96, 9 Sup. Ct. 28, 32 L. Ed. 352 ; Eilenbecker v. District Court, 134 U. S. 31, 10 Sup. Ct. 424, 33 L. Ed. 801 ; In re Cole, 163 Fed. 180, 184, 90 C. C. A. 50, 23 L. R. A. (N. S.) 255. See "Criminal Law," Dec. Dig. (Key- No.) 242; Cent. Dig. 509, 510. 47 (C. C.) 40 Fed. 575; Palliser v. U. S., 136 U. S. 257, 10 Sup. Ct 1034, 34 L. Ed. 514. See "Criminal Law," Dec. Dig. (Key-No.) 97; Cent. Dig. m-191. 48 (D. C.) 44 Fed. 677; Homer v. U. S., 143 U. S. 207, 12 Sup. Ct. 407, 36 L. Ed. 126. See "Criminal Law," Dec. Dig. (Key-No.) 97; Cent. Dig. 171-191. 18-19) PLACE OF TRIAL WARRANT OF REMOVAL 37 was mailed in New York to a party in Illinois, it was held that the offense was triable in Illinois. The proper venue of an indictment against a senator for receiving illegal compensation under section 1782 of the Revised Statutes 49 is where the money was put to -his credit in bank. 50 The Supreme Court, however, has never finally settled defi- nitely where the prosecution for murder should be tried, if the fatal blow was given in one district and the death oc- curred in another, though the question is discussed in Pal- liser v. U. S. 51 and Ball v. U. S. 52 The question is set at rest by section 336 of the Penal Code, which places the commission of the crime of murder or manslaughter at the place where the injury or other cause of death happened. In a prosecution for a conspiracy the venue may be laid wherever an overt act is performed by any one of the con- spirators. 53 The constitutional provision in reference to trying the case in the district where it arose does not, however, pre- vent Congress from enacting, as it has done in section 41 of the Judicial Code, that the trial of offenses on the high seas, or outside of any district at all, shall be in the district where the offender is found or into which he is first brought. 54 In U. S. v. Arwo B5 a murder had been committed on the 4 U. S. Comp. St. 1901, p. 1212. so Burton v. U. S., 196 U. S. 283, 25 Sup. Ct. 243, 49 L. Ed. 482. See "Criminal Law," Dec. Dig. (Key-No.) 118; Cent. Dig. 232. 51 136 U. S. 257, 10 Sup. Ct. 1034, 34 L. Ed. 514. See "Criminal Law," Dec. Dig. (Key-No.) 112; Cent. Dig. 220-230. 52 140 U. S. 118, 11 Sup. Ct. 761, 35 L. Ed. 377. See "Criminal Law," Dec. Dig. (Key-No.) 112, 113; Cent. Dig. 220-232. ss Penal Code, 37 (U. S. Comp. St. Supp. 1911, p. 1600) ; Hyde v. U. S., 225 U. S. 347, 32 Sup. Ct. 793, 56 L. Ed. 1114. See "Crimi- nal Laic," Dec. Dig. (Key-No.) 113; Cent. Dig. 190, 232. S* U. S. v. Dawson, 15 How. 467, 14 L. Ed. 775; Cook v. U. S., 138 U. S. 157, 11 Sup. Ct. 268, 34 L. Ed. 906. See "Criminal Law," Dec. Dig. (Key-No.) 97; Cent. Dig. 111-191. 55 19 Wall. 486, 22 L. Ed. 67. See "Criminal Law," Dec. Dig. (Key- No.) 97; Cent. Dig. 177-191. 38 DISTRICT COURT CRIMINAL JURISDICTION (Ch. 2 high seas. The murderer was taken into the Southern District of New York, and turned over to the authorities there. The vessel containing him stopped five days at quarantine at the mouth of the lower harbor of New York City, which was in the Eastern District of New York. The Supreme Court held, in an opinion containing no dis- cussion of the question, that he could be tried in the South- ern District, where the officers had carried him. Under sections 5570 and following 56 there are various regulations in relation to guano islands which have come under the jurisdiction of the United States. Section 272 of the Penal Code applies the provisions of the Code to these islands. In Jones v. U. S. 57 it was held that such offenses, under section 730, now section 41 of the Judicial Code, could be tried in the district where the offender was brought. 66 U. S. Comp. St. 1901, p. 3739. 57 137 U. S. 202, 11 Sup. Ct. 80, 34 L. Ed. 691. See "Criminal Law," Dec. Dig. (Key-No.) 97; Cent. Dig. 177-191. 20) DISTRICT COURT CRIMINAL JURISDICTION 39 CHAPTER III THE DISTRICT COURT (Continued) CRIMINAL JURISDICTION AND PRACTICE (Continued) 20. Indictment 21. Same Form of Indictment. 22. Information. 23. Same Form of Information. 24. The Defense. 25. The Trial and Its Incidents. INDICTMENT 20. Indictment by a grand jury is the most formal mode of criminal procedure, and is required by law in all cases of capital or infamous offenses. The general rules of criminal procedure and practice in the federal courts are based upon those of the common law, though the rigor and technicality of the common law have been much modified by statute. 1 The fourth, fifth, sixth, seventh, and eighth amendments to the Constitution are practically a bill of rights, and show the solicitude of our ancestors to protect the citizen in every way from un- just prosecutions. In fact, these amendments are prac- tically parts of the original Constitution, for the only way in which some of the states were induced to adopt the Constitution in their state conventions was the assurance of its advocates that it should at once be amended by these additions. The fifth amendment provides, among other things, that no person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of i Howard v. U. S., T5 Fed. 986, 21 C. C. A. 586, 34 L. R. A. 509. See "Courts," Dec. Dig. (Key-No.) 337; Cent. Dig. 908. ' 40 DISTRICT COURT CRIMINAL JURISDICTION (Ch. 3 a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger. This renders an indictment neces- sary in all cases of capital or infamous offenses. The ques- tion, what constitutes an infamous offense was long un- settled, but recent decisions of the Supreme Court have laid down as the test the punishment which can be in- flicted. Any offense which may be punishable by confine- ment in a state prison or penitentiary for a term of years, either with or without hard labor, is an infamous offense, in the sense of this provision. The test is not the punish- ment that is actually inflicted in the special case, but the punishment that might be inflicted on the crime charged in the indictment, whether that punishment, as a matter of fact, is inflicted in the special case or not ; and the Supreme Court in these cases has repudiated the test of infamous offenses based upon the question of its effect on the pris- oner in regard to his competency as a witness thereafter, and applies simply the test as to the character of the pun- ishment. 2 The question whether a given act is a felony or not did not affect the question whether the offense is in- famous. If the punishment was as defined above, the of- fense was infamous, though only a misdemeanor; and, if not as defined above, it might not have b'een infamous, though a felony. With these decisions in view, the committee, in drafting the Penal Code (Act March 4, 1909, c. 321, 35 Stat. 1088 [U. S. Comp. St. Supp. 1911, p. 1588]), provided by section 335 that all offenses which may be punished by death or imprisonment for a term exceeding one year shall be deemed felonies; and all other offenses, misdemeanors. The provisions as to hard labor were omitted because the 2 Ex parte WILSON, 114 U. S. 417, 5 Sup. Ct. 935, 29 L. Ed. 89 ; Mackin v. U. S., 117 TL S. 348, 6 Sup. Ct. 777, 29 L. Ed. 909; In re Claasen, 140 U. S. 200, 11 Sup. Ct. 735, 35 L. Ed. 409. See "Indictment and Information," Dec. Dig. (Key-No.) 2; Cent. Dig. 4-8. 20) INDICTMENT 41 United States frequently use state prisons, whose disci- pline is controlled by the state, which may inflict hard labor. 3 But section 338 of the Penal Code provides that the omission of the words "hard labor" shall not prevent the court from imposing it. This provision makes felonies and infamous offenses practically the same. Independent of statute, a felony means those offenses punishable by forfeiture of lands or goods with capital or other punishment superadded. 4 Under section 1021 of the Revised Statutes, 5 no indict- ment shall be found, nor shall any presentment be made, without the concurrence of at least twelve grand jurors. It is not, however, necessary for the indictment to show upon its face that it was found by twelve grand jurors. * The Court to Try Indictments Sections 1037, 1038 and 1039 of the Revised Statutes 7 provided for the transfer of cases from the circuit courts to the district courts of the same district for trial in cer- tain cases, and vice versa. These sections are not specif- ically repealed by the Judicial Code (Act March 3, 1911, c. 231, 36 Stat. 1087 [U. S. Comp. St. Supp. 1911, p. 128]), but the grant of all criminal jurisdiction to the district court by section 24, paragraph 2, of that act, and the aboli- tion of the circuit court by section 289, render the above sections obsolete. All .criminal cases are now tried in the district court. s In re Karstendick, 93 U. S. 396, 23 L. Ed. 889. See "Indictment and Information," Dec. Dig. (Key-No.) 2; Cent. Dig. 4-8. 4 Bannon v. TJ. S., 156 U. S. 464, 15 Sup. Ct. 467, 39 L. Ed, 494. See "Indictment and Information," Dec. Dig. (Key-No.) 2, 3; Cent. Dig, 4-23. s U. S. Comp. St. 1901, p. 719. e U. S. v. Laws, 2 Low. 115, Fed. Gas. No. 15,579 ; Caha v. U. S., 152 U. S. 211, 14 Sup. Ct. 513, 38 L. Ed. 415. See "Indictment and Information," Dec. Dig. (Key-No.) 56, 57; Cent. Dig. 175-179. i U. S. Comp. St. 1901, p. 723. 42 DISTBICT COUBT CRIMINAL JURISDICTION (Ch. 3 SAME FORM OF INDICTMENT 21. An indictment in the federal courts, though defective in matter of form, is sufficient if the necessary facts of time, place, and circumstance are so stated as to enable the accused to concert his defense and protect himself from a second prosecution, and so as to enable the court to decide whether it is legally sufficient to support a conviction. Section 1025, Rev. St. U. S., 8 provides that no indict- ment found and presented by a grand jury in any district or circuit or other court of the United States shall be deemed insufficient, nor shall the trial, judgment, or other proceeding thereon be affected, by reason of any defect or imperfection in matter of form only, which shall not tend to the prejudice of the defendant. Under this federal statute of jeofails, indictments in the federal courts are simple and devoid of archaic terms or cumbrous forms. At the same time they must be so defi- nite as to give the accused notice of the crime charged against him, enable him to concert his defense, and enable him also to plead former acquittal or conviction in the event of a second trial for the same offense. The general requisites of an indictment are well defined in U. S. v. Cruikshank 9 as follows: "In criminal cases prosecuted under the laws of the United States, the accused has the constitutional right 'to be informed of the nature and cause of the accusation.' Amend. 6. In United States v. Mills, 7 Pet. 142 [8 L. Ed. 636], this was construed to mean that the indictment must set forth the offense 'with clearness and all necessary certainty, to apprise the accused U. S. Comp. St. 1901, p. 720. 92 U. S. 542, 23 L. Ed. 588. See "Indictment and Information," Dec. Dig. (Key-No.) 71; Cent. Dig. 193, 19%. 21) INDICTMENT 43 of the crime with which he stands charged' ; and in United States v. Cook, 17 Wall. 174 [21 L. Ed. 538], that 'every ingredient of which the offense is composed must be ac- curately and clearly alleged.' It is an elementary principle of criminal pleading that where the definition of an of- fense, whether it be at common law or by statute, includes generic terms, it is not sufficient that the indictment shall charge the offense in the same generic terms as in the definition, but it must state the species it must descend to particulars. 1 Archb. Cr. Pr. & PI. 291. The object of the indictment is, first, to furnish the accused with such a description of the charge against him as will enable him to make his defense, and avail himself of his conviction or acquittal for protection against a further prosecution for the same cause; and, second, to inform the court of the facts alleged, so that it may decide whether they are suffi- cient in law to support a conviction, if one should be had. For this, facts are to be stated, not conclusions of law alone. A crime is made up of acts and intent, and these must be set forth in the indictment "with reasonable par- ticularity of time, place, and circumstances." In statu- tory offenses the language of the statute may be followed, but this does not dispense with the necessity of setting out the specific elements of the offense itself with sufficient definiteness to put the prisoner on his defense, and to en- able him to protect himself from a second prosecution. 10 It must charge the time and place, though a blank as to the exact date is not always fatal, and naming the cpunty instead of the town is at least not fatal on a motion in ar- rest of judgment. 11 As to offenses on the high seas, it is 10 TJ. S. v. Fero (D. C.) 18 Fed. 901; U. S. v. Brazeau (C. C.) 78 Fed. 464 ; Peters v. U. S., 94 Fed. 127, 36 C. C. A. 105 ; Cochran v. U. S., 157 U. S. 286, 15 Sup. Ct. 628, 39 L. Ed. 704 ; Harper v. U. S., 170 Fed. 385, 95 C. C. A. 555 ; Hauger v. U. S., 173 Fed. 54, 97 C. C. A. 372; U. S. v. Raley (D. C.) 173 Fed. 159. See "Indictment and Information," Dec. Dig. (Key-^io.) 110; Cent. Dig. 289-19^. 11 Ball v. U. S., 140 U. S. 118, 11 Sup. Ct. 761, 35 L. Ed. 377; Id., 44 DISTRICT COURT CRIMINAL JURISDICTION (Ch. 3 not necessary to charge the special place where they hap- pened, for the general allegation that they were on the high seas and out of the jurisdiction of any particular state is sufficient. 12 In setting out a draft contained in a registered letter al- leged to have been stolen, a description of it, giving the name of the maker, the payee, the payee's address, and the place where it is payable, with an allegation that further particulars are unknown to the grand jury, is sufficient; the draft having been destroyed. 13 The indictment must give the name, not the mere initials, of the accused; but, if the sound is the same, the fact that the spelling is incor- rect does not vitiate it. 14 An indictment must set out a written document in haec verba, though, as to certain mat- ter made unmailable by the federal statutes, an allegation in the indictment that it is improper to be put upon the records of the court renders it discretionary with the court whether to require such matter to be set out in the in- dictment, and the exercise of such discretion is not review- able ; nor does a failure to require it to be set out infringe the prisoner's constitutional right to be informed of the nature and cause of the accusation. 15 The indorsement 163 U. S. 662, 16 Sup. Ct 1192, 41 L. Ed. 300; Ledbetter v. IT. S., 170 U. S. 606, 18 Sup. Ct. 774, 42 L. Ed. 1162; U. S. v. Conrad (C. C.) 59 Fed. 458. See "Indictment and Information," Dec. Dig. (Key- No.) 86, 87; Cent. Dig. 230-255. 12 ANDERSEN v. U. S., 170 U. S. 481, 18 Sup. Ct. 689, 42 L. Ed. 1116. See "Indictment and Information," Dec. Dig. (Key-No.) 86; Cent. Dig. 230-243. isRosencrans v. U. S., 165 U. S. 257, 17 Sup. Ct 302, 41 L. Ed. 70S. See "Indictment and Information," Dec. Dig. (Key-No.) 11; Cent. Dig. 193, 194. i* U. S. v. Upham (C. C.) 43 Fed. 68; Faust v. U. S., 163 U. S. 452, 16 Sup. Ct. 1112, 41 L. Ed. 224. See "Indictment and Information," Dec. Dig. (Key-No.) 81; Cent. Dig. 216-224. isU. S. v. Noelke (C. C.) 1 Fed. 426; U. S. v. Watson (D. C.) 17 Fed. 145 ; Dunlop v. U. S., 165 U. S. 486, 17 Sup. Ct. 375, 41 L. Ed. 799 ; Rosen v. U. S., 161 U. S. 29, 16 Sup. Ct 434, 480, 40 L. Ed. 606. See "Indictment and Information," Dec. Dig. (Key-No.) 81; Cent* Dig. 216-224. 21) INDICTMENT 45 on the indictment of a reference to the statute on which the district attorney supposes it to be based is not a part of the indictment itself, and the indictment is good if sustain- able under some other statute. 16 Section 5396 of the Revised Statutes 17 makes special provision for an indictment charging perjury, and this special provision is not modified or done away with by section 1025 (U. S. Comp. St. 1901, p. 720). 18 Whether an indictment on a statute must negative an exception in the statute depends upon the form of the statute itself. If the exception is in the same clause as the offense, so in- terwoven as to be inseparable, the indictment should nega- tive it; but, if it is in a separate clause, then the exception is matter of defense, and need not be negatived in the in- dictment. 19 So liberal is the practice under section 1025 that the omission of the usual phrase, "contrary to the statute in such case made and provided, and against the peace and dignity of the United States" is mere matter of form, and does not vitiate the indictment. 20 Nor is it necessary to use the word "feloniously," when the statute itself does not use it. 21 The recital in the in- i6 Williams v. U. S., 168 U. S. 382, 18 Sup. Ct. 92, 42 L. Ed. 509; Rogers v. U. S., 180 Fed. 54, 103 C. C. A. 408, 31 L. R. A. (N. S.) 264. See "Indictment and Information," Dec. Dig. (Key-No.) 34; Cent. Dig. 138-148. IT U. S. Comp. St 1901, p. 3655. is Markham v. U. S., 160 U. S. 319, 16 Sup. Ct. 288, 40 L. Ed. 441. See "Indictment and Information," Dec. Dig. (Key-No.) 111; Cent. Dig. 295-298. i Shelp v. U. S., 81 Fed. 694, 26 C. C. A. 570; U. S. v. Wood (D. C.) 168 Fed. 438; U. S. v. Freed (C. C.) 179 Fed. 236. See "Indict- ment and Information," Dec Dig. (Key-No.) 111; Cent. Dig. 295- 298. 20 Frisbie v. U. S., 157 U. S. 160, 15 Sup. Ct 586. 39 L. Ed. 657. See "Indictment and Information" Dec. Dig. (Key-No.) 32; Cent. Dig. 122-131. 21 Bannon v. U. S., 156 U. S. 464, 15 Sup. Ct. 467, 39 L. Ed. 494. See "Indictment and Information," Dec. Dig. (Key-No.) 91; Cent. Dig. 261-265; "Burglary," Cent. Dig. 35; "Forgery," Cent. Dig. 61. 46 DISTEICT COURT CRIMINAL JURISDICTION (Ch. 3 dictment that it was found upon the oaths of the grand jurors, when one of them affirmed, is also a mere matter of form. 22 An indictment need not set out regulations made by any of the departments under statutory authority, nor need they be offered in evidence, for the courts notice them judicially. 23 Charges or allegations in an indict- ment which are not necessary may be disregarded, but cannot be struck out. There is no such thing as amend- ing an indictment. It is supposed to be the act of the grand jury, and it is not for the court to say what charges in it induced them to find it, and what not. An amend- ment by the court, even in striking out words which could be disregarded as surplusage, makes it no longer an in- dictment of a grand jury, makes it an absolute nullity, de- prives the court of jurisdiction to try it, and entitles the prisoner to be released on habeas corpus. 24 Each count of an indictment must charge but one dis- tinct offense, but section 1024, Rev. St. U. S., 25 provides that when there are several charges against any person for the same act or transaction, or for two or more acts or transactions connected together, or for two or more acts or transactions of the same class of crimes or offenses, which may be properly joined, instead of having several indictments the whole may be joined in one indictment, in separate counts; and, if two or more indictments are found, in such cases the court may order them to be consolidated. Although each count must charge a distinct offense, a 22 Bram v. U. S., 168 U. S. 532, 18 Sup. Ct 183, 42 L. Ed. 568. See "Indictment and Information," Dec. Dig. (Key-No.) SO; Cent. Dig^ 120. 23Wilkins v. IT. S., 96 Fed. 837, 37 C. C. A. 588; Caha v. U. S., 152 U. S. 211, 14 Sup. Ct. 513, 38 L. Ed. 415. See "Indictment and Information," Dec. Dig. (Key-No.) 61; Cent. Dig. 183. 24 Ex parte BAIN, 121 U. S. 1, 7 Sup. Ct. 781, 30 L. Ed. 849; U. S. v. Linnier (C. C.) 125 Fed. 83, 87. See "Habeas Corpus," Dec. Dig. (Key-No.) SO; Cent. Dig. 25; "Indictment and Information," Dig. (Key-No.) 159; Cent. Dig. 505-514. 25 U. S. Comp. St. 1901, p. 720. 21) INDICTMENT 47 count for murder does not become liable to the charge of duplicity by reciting that the murder was committed by shooting and drowning/ 16 A count may charge as a single offense a series of acts which constitute a single transac- tion, though these acts may become separate offenses as regards separate persons, 27 and it may be that two sup- posed offenses may be merely successive acts in one trans- action. 28 A single count may charge one defendant as a principal, and another as accessory, and this does not make it liable to the charge of duplicity. 29 Under this power of joinder, separate murders may be joined in one indictment under separate counts. 30 Felon- ies and misdemeanors may be joined also, and any offenses if of the same general class. 31 There is, however, a limit to this power of joinder. In McElroy v. U. S. 32 the Su- preme Court held, in a case of indictments against three parties for assault with intent to kill one party, another indictment against the same parties for assault with intent to kill another party, another indictment against the same parties for arson of the dwelling house of one party, and 26 ANDERSEN v. U. S., 170 U. S. 481, 18 Sup. Ct. 689, 42 L. Ed. 1116. See "Indictment and Information," Dec. Dig. (Key-No.) 125; Cent. Dig. 334-400. 27TJ. S. v. Scott (C. C.) 74 Fed. 213; U. S. v. Delaware, L. & W. R. Co. (C. C.) 152 Fed. 269, 273. See "Indictment and Information," Dec. Dig. (Key-No.) 125; Cent. Dig. 334-400. 28 u. S. v. Fero (D. C.) 18 Fed. 901; U. S. v. Stone (D. C.) 49 Fed. 848. See "Indictment and Information," Dec. Dig. (Key-No.) 125; Cent. Dig. 334-400. 2U. S. v. Berry (D. C.) 96 Fed. 842. See "Indictment and Infor- mation," Dec. Dig. (Key-No.) 125; Cent. Dig. 334-400. so Pointer v. U. S., 151 U. S. 396, 14 Sup. Ct. 410, 38 L. Ed. 208. See "Indictment and Information," Dec. Dig. (Key-No.) 130; Cent. Dig. 419-423. 31 U. S. v. Spintz (C. C.) 18 Fed. 377; Williams v. U. S., 168 U. S. 382, 18 Sup. Ct. 92, 42 L. Ed. 509. See "Indictment and Informa- tion," Dec. Dig. (Key-No.) 131; Cent. Dig. 424- 32 164 U. S. 76, 17 Sup. Ct. 31, 41 L. Ed. 355. See "Criminal Law," Dec. Dig. (Key-No.) 619; Cent. Dig. 1316; "Indictment and In- formation," Cent. Dig. 402. 48 DISTRICT COURT CRIMINAL JURISDICTION (Ch. 3 another indictment against three of these parties for arson of the dwelling house of another party, that these could not be consolidated, and these different defendants ar- raigned together in an omnibus trial for these various of- fenses. It is discretionary with the court to compel the govern- ment to elect on which of several indictments or counts it will proceed, and this may be done at any time during the trial; and the court will always do it if convinced that a trial upon too many indictments or counts would embar- rass the defendant in his defense. 33 A corporation and its officers may be joined in an indict- ment under the Elkins act for rebating, where the acts of the officers are criminally imputed to the corporation. 84 It is allowable for the different counts to refer to each other. 35 The fact that one count is invalid, because based upon a complaint made on information only, does not in- validate other counts made upon a complaint based on per- sonal knowledge. 36 83 Pointer v. U. S., 151 U. S. 396, 14 Sup. Ct. 410, 38 L. Ed. 208; Pierce v. U. S., 160 U. S. 355, 16 Sup. Ct. 321, 40 L. Ed. 454; Gardes v. U. S., 87 Fed. 172, 30 C. C. A. 596 ; Id., 171 U. S. 689, 19 Sup. Ct 884, 43 L. Ed. 1179. See "Indictment and Information," Dec. Dig. (Key-No.) 132; Cent. Dig. 425-453. 34 New York Cent. & H. R. Co. v. U. S., 212 U. S. 481, 29 Sup. Ct. 304, 53 L. Ed. 613. See "Indictment and Information" Dec. Dig. (Key-No.) 124; Cent. Dig. 327-333. s s Blitz v. U. S., 153 U. S. 308, 14 Sup. Ct. 924, 38 L. Ed. 725; Crain v. U. S., 162 U. S. 625, .16 Sup. Ct 952, 40 L. Ed. 1097 ; U. S. v. Peters (C. C.) 87 Fed. 984; Peters v. U. S., 94 Fed. 127, 36 C. C. A. 105. See "Indictment and Information," Dec. Dig. (Key-No.) 99; Cent. Dig. 270, 270y 2 . se Rice v. Ames, 180 U. S. 371, 21 Sup. Ct. 406, 45 L. Ed. 577. See "Indictment and Information," Dec. Dig. (Key-No.) 100; Cent. Dig. 271. 22-23) INFOEMATION 49 INFORMATION 22. Information by the district attorney is a method of criminal procedure less formal than the indict- ment, and an information lies in any cases not capital or infamous. SAME FORM OF INFORMATION 23. Information must conform substantially to the rules stated above in relation to indictments. The requisites of an indictment apply to informations. An information lies in any cases not capital or infamous, as above defined. Section 1022, Rev. St. U. S., 37 which provides that all crimes and offenses committed against the provisions of chapter 7, tit. "Crimes" (this chapter defining offenses against the elective franchise), which are not infamous, may be prosecuted by indictment or by in- formation filed by a district attorney, must be construed in conjunction with the fifth amendment of the Constitu- tion, and was not intended to mean that only those special offenses could be proceeded against by information. 98 An information must be by leave of court, and the judge may give the accused an opportunity to show cause against its filing. 39 A complaint, to justify an information, must show personal knowledge and probable cause. 40 37 U. S. Comp. St. 1901, p. 720. as in re WILSON, 11~4 U. S. 417, 5 Sup. Ct. 935, 29 L. Ed. 89. See "Indictment and Information," Dec. Dig. (Key-No.) 2, S; Cent. Dig. 4-23. 39 U. S. v. Smith (C. C.) 40 Fed. 755. See "Indictment and Infor- mation," Dec. Dig. (Key-No.) 40; Cent. Dig. 151. 4 Johnston v. TJ. S., 87 Fed. 187, 30 C C. A. 612; U. S. v. Tu- reaud (C. C.) 20 Fed. 621. See "Indictment and Information," Dec. HUGHES FED.PB.(2o ED.) 4 50 DISTRICT COURT CRIMINAL JURISDICTION (Ch. 3 THE DEFENSE 24. The method of defense is substantially the same as in the state courts, i. e. by motions to quash, demur- rers, or pleas, dilatory or peremptory, according to the character of the defense. Prisoner Entitled to Copy of Indictment and Lists of Jurors and Witnesses Before Trial Section 1033 of the Revised Statutes 41 provides that, when any person is indicted of treason, a copy of the in- dictment and a list of the jury, and of the witnesses to be produced on the trial for proving the indictment, stating the place of abode of each juror and witness, shall be de- livered to him at least three entire days before he is tried for the same. When any person is indicted of any other capital offense, such copy of the indictment and list of the jurors and witnesses shall be delivered to him at least two entire days before the trial. This requirement, as is ob- vious from its language, applies only to capital offenses. The prisoner must ask for it before pleading or the com- mencement of the trial, or he will be held to have waived it. 42 If a witness is offered whose name is not on the list furnished, the defendant must object at once, and not wait until the witness has been examined in chief, as such ac- tion also will be a waiver. 43 Dig. (Key-No.) 41; Cent. Dig. 152-169; "Criminal Law," Cent. Dig. 415-4S4, 460-477. 41 U. S. Comp. St. 1901, p. 722. 42 u. S. v. Cornell, Fed. Gas. No. 14,868 ; TJ. S. v. Curtis, Fed. Cas. No. 14,905. See "Criminal Law," Dec. Dig. (Key-No.) 62S; Cent. Dig. 1409-1419. 43 Hickory v. U. S., 151 U. S. 303, 14 Sup. Ct. 334, 38 L. Ed. 170. See, in general, Van Duzee v. U. S. (D. C.) 41 Fed. 571 ; U. S. v. Van Duzee, 140 U. S. 169, 11 Sup. Ct. 758, 35 L. Ed. 399 ; Logan v. U. S., 144 U. S. 263, 12 Sup. Ct. 617, 36 L. Ed. 429. See "Criminal Law," Dec. Dig. (Key-No.) 628; Cent. Dig. 1409-1419. 24) THE DEFENSES 51 General Defenses The method of defense in criminal cases in the federal courts is practically the same that prevails in the courts of the different states, and the general rules of criminal procedure are applicable. Dilatory defenses must be made first and promptly. Defenses of this sort are usually made either by motion to quash or by plea in abatement. A mo- tion to quash may be made although dependent on facts not appearing on the face of the record, and evidence may be adduced on the hearing of the motion. In fact, the mere affidavit to a written motion to quash, setting out facts not admitted, and accompanied by no evidence, is not sufficient proof to sustain it. For instance, a motion to quash an indictment on the ground that negroes were improperly excluded from the jury was held to have been properly denied when the only proof of the fact alleged was the affidavit to the written motion. 44 A motion to quash is addressed to the discretion of the court, and there- fore the action of the court upon it is not usually a ground of error. 45 An exception to the make-up of a grand jury may be made by a plea in abatement or by motion to quash, and, if it depends upon facts not shown by the rec- ord, evidence is admissible in support of it, but it must be made before pleading in bar. 46 A plea in abatement is also the proper way to raise questions of this character de- pendent on outside facts, but any objection to the composi- tion of a grand jury must be offered at the earliest oppor- 44 Smith v. Mississippi, 162 TJ. S. 592, 16 Sup. Ct. 900, 40 L. Ed. 1082. See "Indictment and Information," Dec. Dig. (Key-No.) 140; Cent. Dig. 475. 45 Logan v. U. S., 144 U. S. 263, 12 Sup. Ct. 617, 36 L. Ed. 429; Durland v. TJ. S., 161"IT. S. 306, 16 Sup. Ct. 508, 40 L. Ed. 709. See "Criminal Law," Dec. Dig. (Key-No.) 1149; Cent. Dig. 3039- 3043, 3058. 46 Carter v. Texas, 177 TJ. S. 442, 20 Sup. Ct. 687, 44 L. Ed. 839; Burehett v. U. S., 194 Fed. 821, 114 C. C. A. 525. See "Criminal Laic," Dec. Dig. (Key-No.) 279; Cent. Dig. 643, 644; "Indict- ment and Information," Dec. Dig. (Key-No.) 139; Cent. Dig. 473. 52 DISTRICT COURT CRIMINAL JURISDICTION (Ch. 3 tunity; and the plea in abatement is too late, if the pris- oner had any earlier opportunity in court to question the manner in which the grand jury was formed. 47 A pjea in abatement is waived by pleading in bar. 48 Defenses of law going to the substance are raised by demurrer, but under section 1025, heretofore discussed, special demurrers to mere matters of form are practically superseded. 49 If a demurrer is overruled, the proper judg- ment is respondeat ouster. 50 In Hillegass v. U. S. 51 it was held that when a demur- rer is overruled and the accused is allowed to plead over, and does so, he cannot assign the ruling of the court on his demurrer as error, as pleading over is a waiver. The court must have had in mind demurrers in matters of form. Under the act of March 2, 1907, 52 jurisdiction is con- ferred on the Supreme Court to review at the instance of the government certain rulings on demurrers involving the construction of statutes in criminal cases. This act is not mentioned in the repealing sections of either the Ju- dicial or Penal Codes ; so it is still in force. 58 After dilatory defenses are disposed of, and the prison- er is arraigned, section 1032, Rev. St. U. S., 54 provides that when any person indicted for any offense against the United States, whether capital or otherwise, upon his ar- raignment stands mute, or refuses to plead or answer 47 Agnew v. U. S., 165 U. S. 36, 17 Sup. Ct. 235, 41 L. Ed. 624. See "Criminal Law," Dec. Dig. (Key-No.) 27.9; Cent. Dig. 643, G44. 48 TL S. v. Gale, 109 U. S. 65, 3 Sup. Ct. 1, 27 L. Ed. 857. See "Criminal Law," Dc.c. Dig. (Key-No.) 279; Cent. Dig. 643, 644. 4 U. S. v. Kilpatrick (D. C.) 16 Fed. 765.- See "Indictment and Information," Dec. Dig. (Key-No.) 147; Cent. Dig. 490-494. 60 Section 1026, Rev. St. U. S. (U. S. Comp. St. 1901, p. 720). 51183 Fed. 199, 105 C. C. A. 631. See "Indictment and Informar tion," Dec. Dig. (Key-No.) 197; Cent. Dig. 636. 62 34 Stat. 1246, c. 2564. es U. S. v. Winslow, 227 U. S. 202, 33 Sup. Ct 253, 57 L. Ed, > See "Courts," Dec. Dig. (Key-No.) 385. 6*U. S. Comp. St. 1901, p. 722. 24) THE DEFENSE 53 thereto, it shall be the duty of the court to enter the plea of not guilty on his behalf, in the same manner as if he had pleaded not guilty thereto, and when the party pleads not guilty, or such plea-is entered as aforesaid, the cause shall be deemed at issue, and shall, without further form or cer- emony, be tried by a jury. This section applies to infor- mations as well as indictments. 55 The record in a criminal case must show both an ar- raignment and a plea; otherwise there is no issue for the jury to try, and a verdict and judgment following would be fatally defective. 56 Nearly all defenses going to the merits may be made under a plea of not guilty, but there is one which, in its very nature, should be pleaded spe- cially. Under amendment 5 of the Constitution, it is pro- vided that no person shall be subject, for the same offense, to be twice put in jeopardy of life or limb. A defense of once in jeopardy, therefore, could hardly be proved under a plea of not guilty, for the prisoner might be actually guilty, and yet entitled to set up this defense. In some cases, in fact, such a plea might be interposed in conjunc- tion with a plea of not guilty without its being inconsis- tent. For instance, in Thompson v. U. S., 57 the judge dis- covered during the trial of the case that one of the mem- bers of the jury had been on the grand jury which found the indictment. He, thereupon, against the prisoner's ob- jection, discharged the jury and continued the case over for a new trial. On the second trial the prisoner pleaded that the proceedings on the first trial entitled him to raise 55U. S. v. Borger (C. C.) 7 Fed. 193; In re Smith (C. C.) 13 Fed. 25. See "Criminal Law," Dec. Dig. (Key-No.) 266; Cent. Dig. 619, 620. 56 Shelp v. U. S., 81 Fed. 694, 26 C. C. A. 570; Grain v. U. S., 162 U. S. 625, 16 Sup. Ct. 952, 40 L. Ed. 1097; Johnson v. U. S., 225 TL S. 405, 32 Sup. Ct. 748, 56 L. Ed. 1142 ; Beck v. U. S., 145 Fed. 625, 76 C. C. A. 417. See "Criminal Law," Dec. Dig. (Key-No.) 261, 1086; Cent. Dig. 612, 613, 2153, 2754. 57 155 U. S. 271, 15 Sup. Ct. 73, 39 L. Ed. 146. See "Criminal Law," Dec. Dig. (Key-No.) 270, 291; Cent. Dig. 624-628, 667. 54 DISTRICT CODBT CRIMINAL JURISDICTION (Ch. 3 the defense of once in jeopardy. The Supreme Court held that this plea was not inconsistent with the plea of not guilty, under the circumstances of that special case; but it also held that the plea was not sustainable on the facts, in view of the power of federal courts to discharge juries for facts developed during the trial. Plea of Former Jeopardy The fifth amendment provides that no person shall be subject, for the same offense, to be twice put in jeopardy of life or limb. This constitutional provision has been the subject of some interesting decisions in the federal courts. The fact that a failure to testify in certain cases before Congress is punishable as a contempt does not make a statute void which also punishes it as a misdemean- or, on the ground of being twice in jeopardy, for the pro- ceedings are entirely different in nature. 58 On the other hand, where a law authorizes a procedure in rem against property for violation of customs laws, and also a direct criminal proceeding against the owner of the property, the acquittal of the owner is a bar to a subsequent proceeding against the property. 59 The provision does not invalidate a law authorizing the infliction of a severer punishment for a second offense. 60 A party who appeals from a criminal decision against him, and secures its reversal, cannot on the new trial plead the former erroneous trial as placing him in jeopardy.' 1 Where a party is indicted for murder BS In re Chapman, 166 U. S. 661, 17 Sup. Ct 677, 41 L. Ed. 1154. See "Criminal Law," Dec. Dig. (Key-No.) 162; Cent. Dig. 285. 69 Coffey v. U. S., 116 U. S. 436, 6 Sup. Ct. 437, 29 L. Ed. 684. See "Judgment," Dec. Dig. (Key-No.) 151; Cent. Dig. 1309, 1310. eo Moore v. Missouri, 159 U. S. 673, 16 Sup. Ct 179, 40 L. Ed. 301; Graham v. West Virginia, 224 U. S. 616, 32 Sup. Ct. 583, 56 L. Ed. 917. See "Criminal Law," Dec. Dig. (Key-No.) 162; Cent. Dig. 285. i Ball v. U. S., 163 U. S. 662, 16 Sup. Ct 1192, 41 L. Ed. 300; Murphy v. Massachusetts, 177 U. S. 155, 20 Sup. Ct. 639, 44 L. Ed. 711 ; Steinman v. U. S., 185 Fed. 47, 107 C. C. A. 151. See "Criminal Law," Dec. Dig. (Key-No.) 192, 193; Cent. Dig. 376-378. 25) THE TRIAL AND ITS INCIDENTS 55 on an indictment which, if objected to, would be fatally defective, and goes to trial on the merits, without except- ing to the indictment, and is acquitted, he can plead once in jeopardy to a new proceeding by the government on a correct indictment. 62 Under the power of the federal courts, the act of a court in discharging a jury after finding that one of the jury had been on the grand jury that found the indictment the discharge of the jury being against the protest of the prisoner does not violate this provision, and the prisoner can be tried a second time. 63 Parol evi- dence is always admissible, and sometimes necessary, to prove the facts which are the basis of this plea. 64 Sometimes the same acts constitute distinct offenses, in which case an acquittal on one does not bar a prosecution on the other. 65 Some offenses are continuing in nature. In such case an acquittal does not bar a prosecution for subsequent acts. 68 THE TRIAL AND ITS INCIDENTS 25. (a) EVIDENCE The accused is entitled to be con- fronted with adverse witnesses, to compulsory process for his own, and to testify in his own be- half; but his failure to testify cannot be the sub- ject of unfavorable presumptions or comments. 2 Ball v. TL S., 163 U. S. 662, 16 Sup. Ct. 1192, 41 L. Ed. 300. See "Criminal Law," Dec. Dig. (Key-No.) 186; Cent. Dig. 812, 820, 345-361. es THOMPSON v. U. S., 155 TT. S. 271, 15 Sup. Ct. 73, 39 L. Ed. 146. See "Criminal Law," Dec. Dig. (Key-No.) 182; Cent. Dig. S30-S32. 6* Durland v. U. S., 161 U. S. 306, 16 Sup. Ct. 508, 40 L. Ed. 709. See "Criminal Law," Dec. Dig. (Key-No.) 295; Cent. Dig. 6T4- 678. 65 Gavleres v. U. S., 220 U. S. 338, 31 Sup. Ct. 421, 55 L. Ed. 489. See "Criminal Law," Dec. Dig. (Key-No.) 195; Cent. Dig. 382, 383. 6 U. S. v. Swift (D. C.) 186 Fed. 1002. See "Criminal Law," Dec. Dig. (Key-No.) 198; Cent. Dig. 385. 56 DISTRICT COUET CRIMINAL JURISDICTION (Ch. 3 (b) INSTRUCTIONS AND EXCEPTIONS THERE- TO Instructions from the court propound the law to the jury, and should be followed, though a verdict of acquittal in disregard of the principles laid down will stand. Errors in them prejudicial to the accused may be availed of by bill of excep- tions. (c) VERDICT AND SENTENCE The proper meth- od of setting aside a verdict and preventing sen- tence is by motion for new trial if the errors com- plained of are not of record, or motion in arrest of judgment if they are of record. Evidence The sixth amendment entitles the accused to be con- fronted with the witnesses against him, and to have com- pulsory process for obtaining witnesses in his favor. Un- der this provision, section 878, Rev. St. U. S., 67 provides that whenever any person indicted in a court of the Unit- ed States makes affidavit setting forth that there are witnesses whose evidence is material to his defense ; that he cannot safely go to trial without them; what he ex- pects to prove by each of them; that they are within the district in which the court is held, or within one hundred miles of the place of trial ; and that he is not possessed of sufficient means, and is actually unable to pay the fees of such witnesses the court in term, or any judge thereof in vacation, may order that such witnesses be subpoenaed if found within the limits aforesaid. In such case the costs incurred by the process and the fees of the witnesses shall be paid in the same manner that similar costs and fees are paid in case of witnesses subpoenaed in behalf of the United States. This privilege of the prisoner to be confronted with the witnesses has been jealously guarded by the courts in T U. S. Comp. St. 1901, p. 668. 25) THE TRIAL AND ITS INCIDENTS 57 criminal cases. For instance, in a proceeding against the receiver of stolen stamps, the record of the conviction of the thief was held not admissible in evidence against the receiver of the stamps for the purpose of showing that the ownership of the stamps was in the United States, as such record would have deprived the prisoner of the right of confronting witnesses on an essential element of the of- fense. 68 For the same reason, the testimony of one of the government's witnesses who had gone before the com- missioner at the preliminary hearing could not be proved against the prisoner; it appearing that the witness had es- caped, and that the defendant had not in any way partici- pated in or connived at his escape. 69 If, however, the prisoner himself is responsible for the witness' absence, the testimony could be proved against him. 70 The constitu- tional provision, however, does not apply to witnesses in- troduced by the government in rebuttal, as, from the very nature of the case, it could not have been intended to ap- ply to such a case. 71 It does not apply to a civil suit for the value of property forfeited under a federal law, as such procedure is not in its nature a criminal prosecution. 72 It does not forbid the reception in evidence of dying declara- tions, if they measure up to the requirements prescribed by the common law, and they are admissible both for and against the accused. 73 es Kirby v. U. S., 174 U. S. 47, 19 Sup. Ct. 574, 43 L. Ed. 809. See "Criminal Law," Dec. Dig. (Key-No.) 662; Cent. Dig. 1538-1548. 69 MOTES v. U. S., 178 U. S. 458, 20 Sup. Ct. 993, 44 L. Ed. 1150. See "Criminal Law," Dec. Dig. (Key-No.) 662; Cent. Dig. $ 1538- 1548. 70 Reynolds' v. U. S., 98 TJ. S. 145, 25 L. Ed. 244. See "Criminal Law," Dec. Dig. (Key-No.) 662; Cent. Dig. 1538-1548. 71 Goldsby v. U. S., 160 U. S. 70, 16 Sup. Ct. 216, 40 L. Ed. 343. See "Criminal Law," Dec. Dig. (Key-No.) 662; Cent. Dig. 1538- 1548. 72 U. S. v. Zucker, 161 U. S. 475, 16 Sup. Ct. 641, 40 L. Ed. 777. See "Criminal Law," Dec. Dig. (Key-No.) 662; Cent. Dig. 1538- 1548. 73Mattox v. U. S., 146 U. S. 140, 13 Sup. Ct. 50, 36 L. Ed. 917; Carver v. U. S., 160 U. S. 553, 16 Sup. Ct. 388, 40 L. Ed. 532; Id., 58 DISTRICT COURT CRIMINAL JURISDICTION (Ch. 3 Another constitutional provision which is rigidly guard- ed is contained in the fifth amendment, which provides that no person shall be compelled in any criminal case to be a witness against himself. Under this the courts have held that the confessions of the accused cannot be used against him unless it is clear that they are entirely volun- tary, and that they have been made without any induce- ment held out to the prisoner, or any improper influences brought to bear upon him ; though the mere fact that they are made while in custody is not in itself sufficient to pre- vent them from being voluntary. 74 Under the decisions of the Supreme Court, there is a strong presumption of innocence, and the prisoner must be guilty beyond a reasonable doubt. Even the ordinary presumption of sanity does not negative this, but the bur- den is on the government to prove the crime beyond a reasonable doubt, and the capacity of the prisoner to com- mit crime is part of the elements of the crime. 76 The gen- eral good character of the prisoner is always admissible, and may be considered as itself sufficient to raise a reason- able doubt, though the rest of the evidence, taken alone, would not have left room for such a doubt. 78 The flight of the prisoner, or concealment of suspicious circumstanc- es, is valuable as part of the chain of evidence, but is not sufficient alone to raise a legal presumption of guilt. 77 164 TJ. S. 694, 17 Sup. Ct. 228, 41 L. Ed. 602. See "Homicide," Dec. Dig. (Key-No.) 200; Cent. Dig. 425-427. 74 Pierce v. U. S., 160 U. S. 355, 16 Sup. Ct. 321, 40 L. Ed. 454; Dram. v. U. S., 168 U. S. 532, 18 Sup. Ct 183, 42 L. Ed. 568 ; Shaw v. U. S., 180 Fed. 348, 103 C. C. A. 494. See "Criminal Law," Dec. Dig. (Key-No.) 519; Cent. Dig. 1163-1114. 7 5 Davis v. U. S., 160 U. S. 469, 16 Sup. Ct. 353, 40 L. Ed. 4S9; Matheson v. U. S., 227 U. S. 540, 33 Sup. Ct. 355, 57 L. Ed. . See "Criminal Law," Dec. Dig. (Key-No.) 311, 331; Cent. Dig. 742- 7-U. 76 Edgington v. U. S., 164 U. S. 361, 17 Sup. Ct 72, 41 L. Ed. 467; Searway v. U. S., 184 Fed. 716, 107 C. C. A. 635. See "Criminal Law," Dec. Dig. (Key-No.) 376, SSI; Cent. Dig. 836-846. 77 Hickory v. U. S., 160 U. S. 408, 16 Sup. Ct 327, 40 L. Ed. 474; 25) THE TRIAL AND ITS INCIDENTS 59 Where several are indicted jointly for a conspiracy or a joint crime, the acts and statements of the different de- fendants are evidence against each other, up to the point when the offense is consummated, or the idea of commit- ting the offense abandoned, but not thereafter. 78 Prisoner May, but Need Not, Testify By the act of March 16, 1878, 79 it is provided that in the trial of all indictments, informations, complaints, and other proceedings against persons charged with the com- mission of crimes, offenses, and misdemeanors, in the United States courts, territorial courts, and courts-martial, and courts of inquiry, in any state or territory, including the District of Columbia, the person so charged shall, at his own request, but not otherwise, be a competent wit- ness. And his failure to make such request shall not cre- ate any presumption against him. The court is extreme- ly careful, under this statute, to forbid any comments whatever upon the failure of the accused to testify. In fact, in one case the Supreme Court said that all reference to his failure to testify must be rigidly excluded. 80 When the prisoner does take the witness stand, his testimony is entitled to be considered fairly; and the judge must not make hostile comments upon the fact that he is the ac- cused, or say to the jury that such fact alone should de- stroy or seriously impair the weight of his testimony, Alberty v. U. S., 1G2 U. S. 499, 16 Sup. Ct. 864, 40 L. Ed. 1051; Starr v. U. S., 164 U. S. 627, 17 Sup. Ct. 223, 41 L. Ed. 577. See "Criminal Laic," Dec. Dig. (Key-No.) 351; Cent. Dig. 737. 7 s Logan v. U. S., 144 U. S. 263, 12 Sup. Ct. 617, 36 L. Ed. 429; Brown v. U. S., 150 U. S. 93, 14 Sup. Ct. 37, 37 L. Ed. 1010; St. Clair v. U. S., 154 U. S. 134, 14 Sup. Ct. 1002, 38 L. Ed. 936 ; Wiborg v. U. S., 163 U. S. 632, 16 Sup. Ct. 1127, 1197, 41 L. Ed. 2S9; Fitzpat- rick v. U. S., 178 U. S. 304, 20 Sup. Ct. 944, 44 L. Ed. 1078 ; Steers v. U. S., 192 Fed. 1, 112 C. C. A. 423. See "Criminal Law," Dec. Dig. (Key-No.) 422, 424; Cent. Dig. 984-988, 1002-1010. 79 u. S. Comp. St. 1901, p. 660. so WILSON v. U. S., 149 U. S. 60,' 13 Sup. Ct. 765, 37 L. Ed. 650. See "Criminal Law," Dec. Dig. (Key-No.) 721; Cent. Dig. 1672. 60 DISTRICT COURT CRIMINAL JURISDICTION (Ch. 3 though it can call the attention of the jury to the fact that the prisoner would have a strong motive to testify in his own interest. How far the court can go in this particular is difficult to define. 81 If a prisoner waives his right of exemption from testifying, and takes the witness stand, he takes it cum onere, and subjects himself to cross-examin- ation, like any other witness. 82 This protection applies simply to statements improperly extorted from the accused. It does not apply to evidence obtained from an examination of his person, or to evidence from his private papers, though improperly obtained. 83 The fact that a decoy is used to establish the guilt of a prisoner is not sufficient to exclude evidence of such de- coy, and the prisoner may be convicted upon it. 84 The accused must be present during the trial, and this is a right which he cannot waive. 86 This, however, ap- plies only to the court of original jurisdiction. When an appellate court affirms the action of the lower court, and enters an order to that effect, it is not necessary for the accused to be present, though the order of the appellate si Hicks v. TJ. S., 150 U. S. 442, 14 Sup. Ct. 144, 37 L. Ed. 1137; Reagan v. U. S., 157 U. S. 301, 15 Sup. Ct. CIO, 39 L. Ed. 709; Hick- ory v. U. S., 160 U. S. 408, 16 Sup. Ct. 327, 40 L. Ed. 474 ; Allison v. U. S., 160 U. S. 203, 16 Sup. Ct. 252, 40 L. Ed. 395. See "Criminal Law," Dec. Dig. (Key-No.) 743, 786; Cent. Dig. 1722, 1895-1901. 82 Fitzpatrick v. U. S., 178 U. S. 304, 20 Sup. Ct. 944, 44 L. Ed. 1078; Sawyer v. U. S., 202 U. S. 150, 26 Sup. Ct. 575, 50 L. Ed. 972, 6 Ann. Gas. 269. See "Witnesses," Dec. Dig. (Key-No.) 277/ Cent. Dig. 925, 979-984. ss Holt v. U. S., 218 U. S. 245, 31 Sup. Ct 2, 54 L. Ed. 1021, 2O Ann. Cas. 1138 ; Ripper v. U. S., 178 Fed. 24, 101 C. C. A. 152 ; Id., 179 Fed. 497, 103 C. C. A. 478. See "Criminal Laic," Dec. Dig. (Key- No.) 393-395; Cent. Dig. 871-877. s* Andrews v. TJ. S., 162 U. S. 420, 16 Sup. Ct. 798, 40 L. Ed. 1023; Price v. U. S., 165 U. S. 311, 17 Sup. Ct. 366, 41 L. Ed. 727. See "Criminal Law," Dec. Dig. (Key-No.) 37; Cent. Dig. 42; "Bur- glary," Cent. Dig. 23; "Post Office," Dec. Dig. (Key-No.) 42 ; Cent. Dig. 52, 61. SB Hopt v. Utah, 110 TJ. S. 574, 4 Sup. Ct. 202, 28 L. Ed. 262. See "Criminal Law," Dec. Dig. (Key-No.) 636; Cent. Dig. 1465-1482* 25) THE TKIAL AND ITS INCIDENTS 61 court names the time and place of execution, as that is not technically a part of the judgment. 86 The granting or refusing of a continuance is a matter of discretion in the trial court, and not reviewable. 87 It is the duty of the court to curb any improper or un- fair remarks of counsel during the progress of a criminal trial. For instance, in Hall v. U. S., 88 the prosecuting at- torney, in commenting upon the fact which had come out in reference to the character of the prisoner during the trial that he had been tried for killing a negro in Missis- sippi and acquitted remarked that trials in the state of Mississippi of a white man for killing a negro were farces. The defendant excepted to these remarks, and the Su- preme Court held that they were improper, and awarded him a new trial on that ground. So, in Williams v. U. S., 89 where the defendant was be- ing tried for accepting bribes to admit Chinese into this country, the prosecuting attorney, in answer to the point made by the defendant that more had been sent back dur- ing his tenure of office than before or since, remarked that, no doubt, every Chinese woman who did not pay Williams was sent back. Exception ( was taken to this statement and overruled, and the Supreme Court granted a new trial on that, among other grounds. The proper method of taking advantage of such points as this is by a bill of exceptions setting out the necessary se Schwab v. Berggren, 143 U. S. 442, 12 Sup. Ct 525, 36 L. Ed. 218. See "Criminal Law," Dec. Dig. (Key-No.) 987; Cent. Dig. 2511, 2531. ST Isaacs v. U. S., 159 U. S. 487, 16 Sup. Ct. 51, 40 L. Ed. 229; Fi- delity & Deposit Co. v. L. Bucki & Son Lumber Co., 189 U. S. 135, 23 Sup. Ct. 582, 47 L. Ed. 744. See "Criminal Law," Dec. Dig. (Key- No.) 1151; Cent. Dig. 3045-3049. ss 150 U. S. 76, 14 Sup. Ct. 22, 37 L. Ed. 1003. Compare Sawyer v. U. S., 202 U. S. 150, 26 Sup. Ct. 575, 50 L. Ed. 972, 6 Ann. Gas. 269. See "Criminal Law," Dec. Dig. (Key-No.) 722y 2 ; Cent. Dig. 1675. 8 168 U. S. 382, 18 Sup. Ct. 92, 42 L. Ed. 509. See "Criminal Law," Dec. Dig. (Key-No.) 722, 726; Cent. Dig. 1674, 1681. 62 DISTRICT COURT CRIMINAL JURISDICTION (Ch. 3 facts to show its relevancy and the ruling of the court thereon. 90 Instructions to the Jury In criminal cases the jury should take the law from the court, and should follow its instructions. They are not judges of both law and fact under the federal practice, but if they disregard the instructions, and bring in a verdict of acquittal in the teeth of the instructions, the government has no remedy. Despite this result, if they choose to dis- regard their duty, it is none the less their duty to take the law from the court, though in a criminal case the court cannot peremptorily instruct the jury to bring in a ver- dict of guilty. 91 In the federal practice the judge can ex- press his opinion on questions of fact, but in such case he must caution the jury that his opinion is not binding up- on them, and that they are sole judges of the fact. 92 He must not, however, comment in an argumentative or pas- sionate way upon the facts in such manner as to prejudice the jury against the prisoner or interfere too eagerly in the conduct of the case; 93 and it is error in him to com- ment on the witnesses called to prove the defendant's character, and to tell the jury to disregard their evidence, on the ground that they themselves are lacking in charac- ter, for the jury is just as much judge of the credibility of witnesses on the subject of character as on any other sub- so WILSON v. U. S., 149 U. S. 60, 13 Sup. Ct. 765, 37 L. Ed. 650. See "Criminal Laic," Dec. Dig. (Key-No.) 1090; Cent. Dig. 2819. 01 SPARF v. U. S., 156 U. S. 51, 15 Sup. Ct 273, 39 L. Ed. 343. See "Criminal Law," Dec. Dig. (Key-No.) 753; Cent. Dig. 1713, 1727-1730. 82 Simmons v. U. S., 142 U. S. 148, 12 Sup. Ct. 171, 35 L. Ed. 968. See "Criminal Law," Dec. Dig. (Key-No.) 762; Cent. Dig. 17S1, 1750, 1754, 1758, 1759, 1769. as Starr v. U. S., 153 U. S. 614, 14 Sup. Ct. 919, 38 L. Ed. 841; Rudd v. U. S., 173 Fed. 912, 97 C. C. A. 462 ; Adler v. U. S., 182 Fed. 464, 104 C. C. A. 608. See "Criminal Law," Dec. Dig. (Key-No.) 656; Cent. Dig. 1524-1533. 25) THE TRIAL AND ITS INCIDENTS 63 ject." The prisoner must be proved guilty beyond a reasonable doubt, and it is for the court to instruct the jury what constitutes a reasonable doubt, though it is dif- ficult to define it as an abstract proposition. 95 If the pris- oner wishes the jury to be instructed on any proposition of law, he must ask the instruction of the court. It is not error in the court, if it does not instruct on all propositions of law that may be involved, when it has not been asked to do) so. 96 If, however, the legal proposition which the prisoner wishes to be propounded to the jury is covered by another instruction, or by the general charge which the court gives, it is not error in the court to refuse to repeat it. 97 Error The proper method of embodying in the record any er- rors in the court in reference to the instructions is by a bill of exceptions. In fact, this is probably the most com- mon use of a bill of exceptions. Section 953 of the Revised Statutes, 98 as last amended, provides "that a bill of excep- tions allowed in any cause shall be deemed sufficiently au- thenticated if signed by the judge of the court in which a* Smith v. U. S., 161 IT. S. 85, 16 Sup. Ct. 483, 40 L. Ed. 626. See "Criminal Law," Dec. Dig. (Key-No.) 742; Cent. Dig. 1138, 1719- 1721. 5Hopt v. Utah, 120 U. S. 430, 7 Sup. Ct 614, 30 L. Ed. 708; Dunbar v. U. S., 15B U. S. 185, 15 Sup. Ct. 325, 39 L. Ed. 390. See "Criminal Law," Dec. Dig. (Key-No.) 789; Cent. Dig. 1846-1849, 1904-1922, 1960, 1967. se Goldsby v. U. S., 160 TJ. S. 70, 16 Sup. Ct. 216, 40 L. Ed. 343. See "Criminal Law," Dec. Dig. (Key-No.) 824; Cent. Dig. 1996- 2004. 97 Coffin v. U. S., 162 U. S. 664, 16 Sup.'Ct. 943, 40 L. Ed. 1109; White v. U. S., 164 U. S. 100, 17 Sup. Ct. 38, 41 L. Ed. 365 ; Humes v. U. S., 170 U. S. 210, 18 Sup. Ct. 602, 42 L. Ed. 1011; TJ. S. v. Holt (C. C.) 168 Fed. 141; Holt v. TJ. S., 218 U. S. 245, 31 Sup. Ct. 2, 54 L. Ed. 1021, 20 Ann. Cas. 1138. See "Criminal Law," Dec. Dig. (Key-No.) 829; Cent. Dig. 2011. s TJ. S. Comp. St. 1901, p. 696; Guardian Assur. Co. of London v. Quintana, 227 U. S. 100, 33 Sup. Ct. 236, 57 L. Ed. . See "Crim- inal Law," Dec. Dig. (Key-No.) 1090; Cent. Dig. 2818. 64 DISTRICT COURT CRIMINAL JURISDICTION ( Ch. 3 the cause was tried, or by the presiding judge thereof if more than one judge sat at the trial of the cause, without any seal of the court or judge annexed thereto. And in case the judge before whom the cause has heretofore been or may hereafter be tried is, by reason of death, sickness, or other disability, unable to hear and pass upon the mo- tion for a new trial and allow and sign said bill of ex- ceptions, then the judge who succeeds such trial judge, or any other judge of the court in which the cause was tried, holding such court thereafter, if the evidence in such cause has been or is taken in stenographic notes, or if the said judge is satisfied by any other means that he can pass upon such motion and allow a true bill of exceptions, shall pass upon said motion and allow and sign such bill of excep- tions; and his ruling upon such motion and allowance and signing of such bill of exceptions shall be as valid as if such ruling and allowance and signing of such bill of ex- ceptions had been made by the judge before whom such cause was tried; but in case said judge is satisfied that, owing to the fact that he did not preside at the trial, or for any other cause, that he cannot fairly pass upon said motion, and allow and sign said bill of exceptions, then he may, in his discretion, grant a new trial to the party moving there- for." An exception to an instruction or to a charge must point out definitely the part excepted to, as it is not the duty of the court to search through a long charge or instruction for error." If the defendant asks a number of instruc- tions which are refused, a general exception to their re- fusal fails if any one of them is wrong. He must specify the separate errors in connection with each instruction. 1 so Edgington v. TJ. S., 164 U. S. 361, 17 Sup. Ct. 72, 41 L. Ed. 467; Richards v. U. S., 175 Fed. 911, 99 C. C. A. 401. See "Criminal Law," Dec. Dig. (Kcji-No.) 1059; Cent. Dig. 2671. i Thiede v. Utah, 159 U. S. 510, 16 Sup. Ct. 62, 40 L. Ed. 237. See "Criminal Laic," Dec. Dig. (Key-No.) 1059; Cent. Dig. 2671. 25) THE TRIAL AND ITS INCIDENTS 65 A bill of exceptions to the refusal of the court to grant the instructions asked by the defendant should set out the in- structions actually given; for, as the presumptions are in favor of the correctness of proceedings in the lower court, the appellate court might otherwise presume that the in- structions actually given covered the points embodied in the instructions of the accused. 2 The instructions must be incorporated in the bill of exceptions so as to enable the appellate court to see wherein there was error. 3 It is al- lowable in federal practice to join all of the exceptions in one bill, but this does not dispense with the necessity of taking separate exceptions to the separate rulings and pointing out the separate errors relied on. 4 The bill of exceptions need not state that it contains all the evidence, if the fact otherwise appears. 6 The Verdict It is allowable for the judge to recall the jury and give them further instructions, and even to impress on them the importance of coming to an agreement, and of making mu- tual concessions for that purpose. 6 When there is more than one count in an indictment, the jury may agree to bring in a verdict on one or more counts, though they dis- 2 Andrews v. U. S., 162 U. S. 420, 16 Sup. Ct. 798, 40 L. Ed. 1023, See "Criminal Laic," Dec. Dig. (Key-No.) 1091; Cent. Dig. 2818, 2940-2945. 3 Clune v. U. S., 159 U. S. 590, 16 Sup. Ct. 125, 40 L. Ed. 269. See "Criminal Law," Dec. Dig. (Key-No.) 1091, 1122; Cent. Dig. 2818, 2940-2945. 4 LEES v. U. S., 150 U. S. 476, 14 Sup. Ct. 163, 37 L. Ed. 1150; Richardson v. U. S., 181 Fed. 1, 104 C. C. A. 69. See "Criminal Law," Dec. Dig. (Key-No.) 1091, 1122; Cent. Dig. 2818, 2940- 2945. s Clyatt v. U. S., 197 U. S. 207, 25 Sup. Ct. 429, 49 L. Ed. 726. See "Criminal Law," Dec. Dig. (Key-No.) 1122; Cent. Dig. 2940-2945. e Allis v. U. S., 155 U. S. 117, 15 Sup. Ct. 36, 39 L. Ed. 91 ; Allen v. U. S., 164 U. S. 492, 17 Sup. Ct. 154, 41 L. Ed. 528. Compare Burton v. U. S., 196 U. S. 283, 25 Sup. Ct. 243, 49 L. Ed. 482. See "Criminal Law," Dec. Dig. (Key-No.) 863; Cent. Dig. 2065-2067. HUGHES FED.PB.(2o ED.) 5 66 DISTRICT COURT CRIMINAL JURISDICTION (Ch. 3 agree as to others, and where there are separate defendants they may acquit some and convict others ; and, even when the case goes to the appellate court, the court may set aside the verdict as to one count, and let it stand as to others. 7 A verdict finding the defendant guilty on some counts, and not mentioning the other counts at all, is an acquittal on the other counts. 8 A general verdict of guilty is valid if any count is good, and convicts on all the counts. 9 Section 1035, Rev. St. U. S., 10 provides that in all criminal cases the defendant may be found guilty of any offense the commission of which is necessarily in- cluded in that with which he is charged in the indictment, or may be found guilty of an attempt to commit the of- fense so charged, provided that such attempt be itself a separate offense. Under this section it is proper for the court to instruct the jury that it should not find the pris- oner guilty of a lesser offense where there is no evidence whatever to show that the lesser offense was actually com- mitted, 11 but, if there is any evidence at all that a lesser offense was committed, the court must not take this ques- tion from the jury, and must not instruct them against finding a verdict of the lesser offense. 12 The jury may, by 7 St. Glair v. U. S., 154 U. S. 134, 14 Sup. Ct. 1002, 38 L. Ed. 936 ; Bucklin v. U. S., 159 U. S. 680, 16 Sup. Ct 182 r 40 L. Ed. 304 ; Ballew v. U. S., 160 U. S. 187, 16 Sup. Ct. 263, 40 L. Ed. 388; Sel- vester v. U. S., 170 U. S. 262, 18 Sup. Ct. 580, 42 L. Ed. 1029. See "Criminal Law," Dec. Dig. (Key-No.) 878; Cent. Dig. 2098-2101. s Jolly v. U. S., 170 U. S. 402, 18 Sup. Ct. 624, 42 L. Ed. 1085. See "Criminal Laic," Dec. Dig. (Key-No.) 878; Cent. Dig. 2098-2101. Friedenstein v. U. S., 125 U. S. 224, 8 Sup. Ct 838, 31 L. Ed. 736; Dunbar v. U. S., 156 U. S. 185, 15 Sup. Ct 325, 39 L. Ed. 390; Kaye v. U. S., 177 Fed. 147, 100 C. C. A. 567. See "Criminal Law," Dec. Dig. (Key-No.) 878; Cent. Dig. 2098-2101. 10 U. S. Cornp. St. 1901, p. 723. 11 SPARF v. U. S., 156 U. S. 51, 15 Sup. Ct 273, 39 L. Ed. 343. See "Criminal Law," Dec. Dig. (Key-No.) 795; Cent. Dig. 1923- 1927. 12 Stevenson v. U. S., 162 U. S. 313, 16 Sup. Ct 839, 40 L. Ed. 980. See "Criminal Law," Deo. Dig. (Key-No.) 7^8; Cent. Dig. 1923- 1927. 25) THE TRIAL AND ITS INCIDENTS 67 consent of parties and in the presence of the defendant, bring in a sealed verdict. 13 New Trials A motion for a new trial is addressed to the discretion of the federal court, and is not ordinarily reviewable, though, where the acts to which exceptions have been taken can only be availed of by granting the accused a new trial, and those acts are properly excepted to, the fact that the question comes up in the form of a motion for a new trial will not prevent the appellate court from re- lieving the accused against the errors so committed. 1 * Motions in Arrest of Judgment This motion only lies for matter apparent on the record, or for the lack of matter that ought to be apparent on the record. For mere matters of form, the court will not sus- tain such a motion even for points which in some cases might have been good on demurrer. 15 Judgment and Sentence The judgment should be definite, and show that it is based upon the verdict and the criminal statute under which the prosecution is instituted, though any defect in this particular may be supplied by the full record, if that itself is complete, showing an indictment, arraignment, plea, trial, and conviction. 16 It must conform strictly to the statute, and, if it goes on and adds a character of im- 13 Pounds v. TJ. S., 171 U. S. 35, 18 Sup. Ct. 729, 43 L. Ed. 62. See "Criminal Law," Dec. Dig. (Key-No.) 873; Cent. Dig. 208%. i* Mattox v. TJ. S., 146 U. S. 140, 13 Sup. Ct. 50, 36 L. Ed. 917. See "Criminal Laic," Dec. Dig. (Keu-No.) 1156; Cent. Dig. 3067-3071. i5U. S. v. Barnhart (U. S.) 17 Fed. 579; Durland v. U. S., 161 U. S. 306, 16 Sup. Ct. 508, 40 L. Ed. 709; Connors v. U. S., 158 U. S. 408, 15 Sup. Ct. 951, 39 L. Ed. 1033 ; Ledbetter v. U. S., 170 U. S. 606, 18 Sup. Ct. 774, 42 L. Ed. 1162 ; Morris v. U. S., 168 Fed. 682, 94 C. C. A. 168 ; Floren v. U. S., 186 Fed. 961, 108 C. C. A. 159. See "Criminal Law," Dec. Dig. (Key-No.) 974; Cent. Dig. 2469-2478. ie White v. U. S., 164 U. S. 100, 17 Sup. Ct. 38, 41 L. Ed. 365; Pointer v. U. S., 151 U. S. 396, 14 Sup Ct. 410, 38 L. Ed. 208. See "Criminal Law," Dec. Dig. (Key-No.) 995; Cent. Dig. 2518-2543. 68 DISTEICT COURT CRIMINAL JURISDICTION (Ch. 3 prisonment not authorized by law, it is void as, for ex- ample, where a judgment sentenced a person accused of crime to imprisonment for one year and the payment of a fine, and then illegally added that the imprisonment should take place in a state penitentiary, the judgment was void, and the prisoner was released on habeas corpus. 17 When a writ of error is taken to a judgment, it is merely stayed, not vacated. 18 Where a prisoner is convicted on several offenses, the court can impose a single sentence, making it greater than it would have been on any one. 19 Section 330 of the Penal Code (Act March 4, 1909, c. 321, 35 Stat. 1152 [U. S. Comp. St. Supp. 1911, p. 1686]) permits the jury in certain capital cases to qualify their verdict by add- ing thereto, "Without capital punishment," and in such case the court cannot sentence to death. This statute has been construed to give the jury power to add this qualify- ing clause in any capital case, though there is no evidence whatever of palliating circumstances, and the court must not take this right away from them by instructions. 20 IT In re Bonner, 151 U. S. 242, 14 Sup. Ct. 323, 38 L. Ed. 149. See "Criminal Law," Dec. Dig. (Key-No.) 995; Cent. Dig. 2518-25>,S. is Schwab v. Berggren, 143 U. S. 442, 12 Sup. Ct 525, 36 L. Ed. 218. See "Criminal Law," Dec. Dig. (Key-No.) 1084; Cent. Dig. 2728-2785. i In re De Bara, 179 U. S. 316, 21 Sup. Ct. 110, 45 L. Ed. 207. See "Criminal Law," Dec. Dig. (Key-No.) 991; Cent. Dig. 25/8, 2525, 2528. 20 Winston v. U. S., 172 U. S. 303, 19 Sup. Ct. 212, 43 L. Ed. 456. See, also, on this same statute, MOTES v. U. S., 178 U. S. 458, 20 Sup. Ct. 993, 44 L. Ed. 1150. See "Criminal Law," Dec. Dig. (Key- No.) 884; Gent. Dig. 2107. 27) DISTRICT COURT MISCELLANEOUS JURISDICTION 69 CHAPTER IV THE DISTRICT COURT (Continued) MISCELLANEOUS JURIS- DICTION 26. Penalties, Forfeitures, and Seizures. 27. Same Nature and Form. 28. Admiralty. 29. Same Nature and Form. 30. Particular Classes of Litigation, Including Questions under the Laws Relating to the Slave Trade, the Revenue, Domestic and Foreign, the Postal Laws, the Patent, Copyright, and Trade- Mark Laws, the Interstate Commerce Laws, Questions on De- bentures, the Civil Rights Laws, the National Bank Laws, Suits by Aliens for Torts and Suits against Consuls. PENALTIES, FORFEITURES, AND SEIZURES 26. The district court has jurisdiction of all suits for penal- ties and forfeitures incurred under any law of the United States, and of all seizures on land and on waters not within the admiralty and maritime ju- risdiction. The ninth clause of section 24 of the Judicial Code gives the district court jurisdiction "of all suits for penalties and forfeitures incurred under any law of the United States," and the third clause of the same section gives it jurisdic- tion of all seizures on land and on waters not within ad- miralty and maritime jurisdiction. SAME NATURE AND FORM 27. These proceedings are against the offender or against the property or both. Suits for penalties are in the form of an ordinary common-law action on a money demand. Suits for forfeitures against the 70 DISTKICT COUBT MISCELLANEOUS JURISDICTION (Ch. 4 property are in the form of an information in rem. They partake both of a civil and a criminal na- ture, possessing certain attributes of each. Penalties and forfeitures are common all through the federal statutes, in connection with the navigation laws, the customs laws, the internal revenue laws, etc. They usually prescribe a penalty against the offender, and, where the offense is sufficiently grave, a forfeiture of the property engaged in the violation of law. In some of the statutes, the property itself is treated as the offender, independent of the question of ownership. In such case the procedure against the property as an offending thing is independent of the procedure against the owner. In fact, it is possible for the owner to be acquitted and the property condemned in such case. Other proceedings make the act of the owner and the forfeiture of the property so interwoven that the one is an incident of the other. The special statute must be referred to in each case, to ascertain whether the case falls under one or the other of these classes. Under the first of these two clauses "suits for penalties and for- feitures" mean civil actions. 1 Under section 42 of the Judicial Code all pecuniary penalties and forfeitures may be sued for and recovered, either in the district where they accrue, or in the district where the offender is found ; and, under section 45, proceedings on seizures, for forfeiture under any law of the United States, made on the high seas, may be prosecuted in any district into which the property so seized is brought, and proceedings instituted. Proceed- ings on such seizures made within any district shall be prosecuted in the district where the seizure is made, except in cases where it is otherwise provided. i The Little Ann, Fed. Gas. No. 8,397 ; U. S. v. Mann, Fed. Cas. No. 15,718. See "Courts," Dec. Dig. (Key-No.) 284; Cent. Dig. 820-831; "War," Dec. Dig. (Key-No.) 2; Cent. Dig. 7. 27) PENALTIES, FORFEITURES, AND SEIZURES 71 Suits for penalties are in the form of an ordinary com- mon-law action on a money demand. Suits for forfeitures against the property are in the form of an information in rem. These procedures partake both of a civil and a crim- inal nature. Where no fine or imprisonment is imposed, 2 they are civil in their form so much so, indeed, that the government has an appeal. But they are so far criminal in their nature that a defendant cannot be required to give evidence against himself. 3 On the other hand, in a civil action sounding in dollars and cents, the evidence can be taken by deposition, and the constitutional provision in reference to confronting the accused with witnesses does not prevent its being so taken. 4 Where the act of the owner is so connected with the illegal use of the property as to make it an essential element of the offense, his ac- quittal would bar a procedure in rem against the prop- erty. 5 These cases are triable by a jury, but the parties may waive a jury. 6 Where the violation of law by the thing itself is independent of the act of the owner, the pro- cedure against the thing and the prosecution of the owner are distinct, and a forfeiture of the thing may be decreed 2 Hepner v. U. S., 213 TJ. S. 103, 29 Sup. Ct. 475, 53 L. Ed. 720, 27 L. R. A. (N. S.) 739, 16 Ann. Gas. 960 ; Chicago, B. & Q. R. Co. v. U. S., 220 U. S. 559, 31 Sup. Ct. 612, 55 L. Ed. 582. They are so far civil that a recovery may be had on a preponderance of evidence. New York C. & H. R. R. Co. v. U. S., 165 Fed. 833, 91 C. C. A. 519. See "Aliens," Dec. Dig. (Key-No.) 58; "Penalties," Dec. Dig. (Key-No.) 16; Cent. Dig. 13-16. a LEES v. U. S., 150 U. S. 476, 14 Sup. Ct. 163, 37 L. Ed. 1150. See "Courts," Dec. Dig. (Key-No.) 414; Cent. Dig. 1109; "Wit- nesses," Dec. Dig. (Key-No.) 800; Cent. Dig. 1242, 1242^. *U. S. v. Zucker, 161 U. S. 475, 16 Sup. Ct. 641, 40 L. Ed. 777. See "Criminal Laic," Dec. Dig. (Key-No.) 662; Cent. Dig. 3, 1538-1548. 6 Chantangco v. Abaroa, 218 U. S. 476, 31 Sup. Ct. 34, 54 L. Ed. 1116. See "Judgment," Dec. Dig. (Key-No.) 559; Cent. Dig. 1077, 1078. e Henderson's Distilled Spirits, 14 Wall. 44, 20 L. Ed. 815. See "Jury," Dec. Dig. (Key-No.) 28, 29; Cent. Dig. 176-203. 72 DISTRICT COURT MISCELLANEOUS JURISDICTION (Ch. 4 without a conviction of the owner. 1 The procedure, on a libel of information, which is by nature largely an ad- miralty proceeding, or at least based on the practice of the admiralty court, is required by admiralty rule 22 of the Supreme Court to state the place of seizure, whether on land or on the high seas, or on navigable waters within the admiralty and maritime jurisdiction of the United States, and the district within which the property is brought, and where it then is. The information or libel of information shall also propound in distinct articles the matters relied on as grounds or causes of forfeiture, and aver the same to be contrary to the form of the statute or statutes of the United States in such case provided, as the case may require, and shall conclude with a prayer of due process to enforce the forfeiture, and give notice to all per- sons concerned in interest to appear and show cause at the return day of the process why the forfeiture should not be decreed. By section 923 of the Revised Statutes, 8 in such cases fourteen days' notice of the seizure and libel shall be given by causing the substance of the libel, with the order of the court thereon, setting forth the time and place ap- pointed for trial, to be inserted in some newspaper pub- lished near the place of seizure, and by posting up the same in the most public manner, for the space of fourteen days, at or near the place of trial, and proclamation shall be made in such manner as the court shall direct ; and, if no person appears and claims the property or bonds it, the court can proceed to hear and determine the cause according to law. By section 1047 of the United States Revised Statutes, 9 suits for penalties or forfeitures are limited to five years, except where there are special provisions in special cases. Statutory forfeitures, unlike common-law forfeitures, i U. S. v. The Three Friends, 166 U. S. 1, 17 Sup. Ct. 495, 41. L. Ed. 897. See "Neutrality Laics," Dec. Dig. (Key-No.) 4. U. S. Comp. St. 1901, p. 686. U. S. Comp. St. 1901, p. 727. 27) PENALTIES, FORFEITURES, AND SEIZURES 73 take effect, not from the date of sentence, but from the commission of the offense, even as against an innocent pur- chaser. 10 The draft of the Judicial Code submitted by the Revi- sion Committee shows that this ninth clause of section 24 of the Code (U. S. Comp. St. Supp. 1911, p. 135) was in- tended to include the special provision embodied in para- graph 6 of section 563 of the Revised Statutes (U. S. Comp. St. Supp. 1911, p. 455), conferring jurisdiction on the dis- trict court of suits under section 3490 of the Revised Stat- utes 1X against persons making false claims against the United States. 12 Powers of Secretary of Treasury Under sections 5293 and 5294 of the Revised Statutes, 18 the Secretary of the Treasury is given a large discretion in remitting penalties incurred where no intent to violate the law seems to exist; and it is but just to the department of the treasury to say that, in the exercise of this discretion, great generosity and mercy have been shown, as against parties innocent of any intent to violate the law. This power may be exercised by the Secretary of the Treasury even in suits brought by informers before actual trial and judgment, and these sections giving him this power are not unconstitutional, as violating the pardoning power of the President. 1 * 10 U. S. v. Stowell, 133 U. S. 17, 10 Sup. Ct. 244, 33 L. Ed. 555; 581 Diamonds v. U. S., 119 Fed. 556, 56 C. C. A. 122, 60 L. R. A. 595. See "Customs Duties," Dec. Dig. (Key-No.) ISO; Cent. Dig. 296-315. 11 U. S. Comp. St 1901, p. 2328. 12 U. S. v. Shapleigh, 54 Fed. 126, 4 C. C. A. 237. See "United States," Dec. Dig. (Key-No.) 122; Cent. Dig. 110. is U. S. Comp. St. 1901, pp. 3605-3607. Some of these powers are now vested in the Department of Commerce and Labor. 32 Stat. 825, 829 (II. S. Comp. St Supp. 1911, p. 122, 10). 14 The Laura, 114 U. S. 411, 5 Sup. Ct. 881, 29 L. Ed. 147. See "Pardon," Dec. Dig. (Key-No.) 4; Cent. Dig. 5. 74 DISTRICT COURT MISCELLANEOUS JURISDICTION (Ch. 4 ADMIRALTY 28. Jurisdiction in matters of admiralty and maritime law is vested in the district court, and this jurisdiction is made exclusive, except where expressly speci- fied to the contrary. This is an important class of jurisdiction of the district courts. SAME NATURE AND FORM 29. The admiralty procedure is in rem or in personam, and extends to matters in contract and in tort coming under the admiralty and maritime law. The prac- tice is largely governed by a set of rules pre- scribed by the Supreme Court for the purpose. The third clause of section 24 of the Judicial Code gives the court jurisdiction of all civil causes of admiralty and maritime jurisdiction, saving to suitors in all cases the right of a common-law remedy where the common law is competent to give it, of all seizures on land and on waters not within admiralty and maritime jurisdiction and of all prizes brought into the United States ; and the jurisdiction of the district court over admiralty causes is made exclu- sive except where expressly specified to the contrary. The admiralty and maritime jurisdiction of the district courts at least of those district courts on the seacoast or important navigable waters is probably its most impor- tant class of jurisdiction. The procedure in admiralty is sui generis, consisting of actions in rem and actions in personam. Those in rem are against the vessel or thing itself. Those in personam are ordinary civil suits on the admiralty side of the court against individuals for ad- miralty causes of action. : 28-29) ADMIBALTY 75 Cases of admiralty cognizance are either in contract or in tort. Those in contract depend upon the character of the cause of action, those being of admiralty cognizance which are marine in their nature. Those in tort depend upon the locality, admiralty having jurisdiction of such actions where they arise and become consummate on nav- igable waters within the jurisdiction of. the admiralty courts. Illustrations of admiralty causes of action in con- tract are suits against vessels for supplies and repairs, suits under charter parties, and suits on bills of lading; and illustrations of actions of tort in the admiralty are colli- sions between vessels, and personal injuries inflicted by negligence on navigable waters. The pleading which sets -out the cause of action is called a libel, and the defense is made by answer or exception. In an action in rem, the property itself is seized, and, if not bonded, the libelant has a decree of sale of the property entered by the court, and it is sold by the marshal, and the proceeds applied to pay the claims asserted against it. The procedure and practice in the admiralty courts are regulated by the rules in admiralty prescribed by the Supreme Court for the government of admiralty causes. They provide a simple and excellent .system of pleading, by which causes are quickly matured, and substantial justice administered. Most of these admiralty causes of action are of a nature that gives the common-law courts also jurisdiction ; that is, jurisdiction over the cause of action, but not jurisdiction over the procedure. For instance, in a case of collision be- tween two vessels, the injured party can proceed by a libel in rem against the other vessel, and the district court alone has jurisdiction of such a pleading. 15 But on the other hand, as a collision is a tort at common law, if due to neg- 15 The Glide, 167 U. S. 606, 17 Sup. Ct 930, 42 L. Ed. 296. See "Admiralty," Dec. Dig. (Key-No.) 1-25; Cent. Dig. 1-264; "Col- lision," Dec. Dig. (Key-No.) 111; Cent. Dig. 234; "Maritime Liens," Dec. Dig. (Key-No.) 60; Cent. Dig. 98. 76 DISTRICT COURT MISCELLANEOUS JURISDICTION (Ch. 4: ligence, the injured party can bring an ordinary action of tort in a common-law court, or, if the citizenship and amount are requisite, he can bring an ordinary action of tort in the district court of the United States on its com- mon-law side. 18 PARTICULAR CLASSES OF CONTROVERSIES 30. The district court has jurisdiction, under section 24, paragraphs 4-18, inclusive, of the following par- ticular classes of controversies, of greater or less importance : (a) Under laws relating to slave trade; (b) Under internal revenue, customs and tonnage laws; (c) Under postal laws ; (d) Under patent, copyright and trade-mark laws; (e) Violation of interstate commerce laws; (f) On debentures; (g) On account of acts done under laws of United States ; (h) Against persons having knowledge of conspiracy against civil rights; (i) To redress deprivation under color of law of civil rights ; (j) To recover certain offices; v (k) Against national banking associations; (1) By aliens for torts ; (m) Against consuls and vice consuls. Suits under Laws Relating to Slave Trade This constitutes paragraph 4 of section 24 (U. S. Comp. St. Supp. 1911, p. 136). It was a jurisdiction formerly ex- ercised by the circuit court, but is now of no practical im- portance. is The jurisdiction of the admiralty courts is so extensive that it is impossible in this treatise to discuss it. Reference is made to the author's treatise on Admiralty, published in the year 1901. 30) PABTICULAE CLASSES OF CONTROVERSIES 77 Cases Arising under Any Law Providing for Internal Rev- enue, or for Revenue from Imports or Tonnage, except That Conferred on the Court of Customs Appeals This is paragraph 5 of section 24, and is intended as a combination of paragraph 5, 563, of the Revised Statutes (U. S. Comp. St. 1901, p. 456), conferring on the dis- trict court jurisdiction of suits in equity to enforce liens for federal taxes on real estate, and paragraph 4, 629, of the Revised Statutes (U. S. Comp. St. 1901, p. 503), which conferred jurisdiction of various questions of reve- nue on the circuit court. Section 3207 of the Revised Statutes 1T gives the right to file a bill in chancery to enforce tax liens on real estate ; and section 3213 18 gives a right of action to the United States in any proper form of action or by any appropriate form of proceeding, qui tam or otherwise, before any cir- cuit or district court of the United States for the district within which a fine or forfeiture may have been incurred, for the recovery of forfeitures under the tax laws con- nected with the internal revenue ; and the same section gives a right of action for taxes in the district where the liability to the tax is incurred, or where the party who owes the tax resides at the commencement of the action. 19 Suits under Postal Laws This is paragraph 6, 24, and was taken from paragraph 7, 563, of the Revised Statutes. Suits under Patent, Copyright and Trade-Mark Laws This constitutes paragraph 7 of section 24, and is one of the classes of jurisdiction formerly exercised by the circuit court. IT U. S. Comp. St. 1901, p. 2081. U. S. v. Mackoy, 2 Dill. 299, Fed. Cas. No. 15,696; U. S. v. Rindskopf, 8 Biss. 507, Fed. Cas. No. 16,166. See "Courts," Dec. Dig. (Key-No.) 297. i U. S. Comp. St 1901, p. 2083. 78 DISTRICT COURT MISCELLANEOUS JURISDICTION (Ch. 4- This very extensive ground of federal jurisprudence can- not be discussed in the limits prescribed by this treatise, and must be left to books dealing specially with that sub- ject. The mere fact that a patent may be incidentally con- nected with the litigation is not sufficient to confer juris- diction under this clause. The right of the party must de- pend directly upon the patent or copyright law itself, and must not be merely incidentally involved. It does not cover mere suits on contracts connected with a patent, like questions of construction, or questions involving the va- lidity of a license to use a patent. 20 A suit to enjoin the assessment of taxes on the ground that they are levied on patent rights is not a suit arising under the patent or copyright laws of the United States, in. the sense of this statute. 21 On the other hand, an action for damages for the infringement of a copyright, under the- provisions of section 4966 of the Revised Statutes, 22 does arise under the patent or copyright laws of the United States, 23 as also a suit to recover the penalty of one dollar for each copy of the copyrighted article circulated contrary, to the provisions of section 4965 of the Revised Statutes. 24 20 Excelsior Wooden Pipe Co. v. Bridge Co., 185 U. S. 282, 22 Sup. Ct. 681, 46 L. Ed. 910 ; H. C. Cook Co. v. Beecher, 217 TJ. S. 497, 3O Sup. Ct. 601, 54 L. Ed. 855; Henry v. A. B. Dick Co., 224 U. S. 1,. 32 Sup Ct. 364, 56 L. Ed. 645 ; The Fair v. Kohler D. & S. Co., 228 U. S. 22, 33 Sup. Ct 410, 57 L. Ed. ; post, pp. 242, 490. See "Courts," Dec. Dig. (Key-No.) 290; Cent. Dig. 832. 21 Holt v. Manufacturing Co., 176 TJ. S. 68, 20 Sup. Ct 272, 44 L. Ed. 374. See "Courts," Dec. Dig. (Key-No.) 290; Cent. Dig. 832. 22 U. S. Comp. St. 1901, p. 3415. 23 Brady v. Daly, 175 U. S. 148, 20 Sup. Ct 62, 44 L. Ed. 109. See "Courts," Dec. Dig. (Key-No.) 291; Cent. Dig. 833; "Copy- rights," Cent. Dig. 49, 67. 2* Falk v. Publishing Co. (C. C.) 100 Fed. 77; Id., 107 Fed. 126, 46 C. C. A. 201 ; Werckmeister v. American Tobacco Co., 207 U. S. 375, 28 Sup. Ct 125, 52 L. Ed. 254. See "Courts," Dec. Dig. (Key-No.) g 291; Cent. Dig. 833; "Copyrights," Cent. Dig. 49, 67. 30) PARTICULAR CLASSES OF CONTROVERSIES 79 Suits for Violation of Interstate Commerce Laws This is paragraph 8 of section 24. The proceedings which are exclusively to be taken in the commerce court are excepted from the operation of this paragraph. This exception is set out in section 207 of the Judicial Code (U. S. Comp. St. Supp. 1911, p.216) * No clause of the Constitution has been responsible for as much legislation in recent years as the commerce clause. It has been used as a clothesline on which to hang every- thing; and a discussion of the legislation under it is far beyond the purview of this treatise. The best known ex- amples are the statutes regulating carriers in their relation to the public and their employees, anti-trust laws, pure food laws and laws against the "white slave" traffic. The decisions on these various laws are increasingly numerous. A few of the later ones are added in a footnote. 26 * The Commerce Court is now abolished. See post, p. 701. 25 (i) Under the interstate commerce act (Act Feb. 4, 1887, c. 104, 24 Stat. 379 [U. S. Comp. St. 1901, p. 3154]) : Atlantic Coast Line R. Co. y. Riverside Mills, 219 U. S. 106, 31 Sup. Ct. 164, 55 L. Ed. 167, 31 L. R. A. (N. S.) 7; Int. Comm. Commission v. Union Pacific R. Co., 222 U. S. 541, 32 Sup. Ct. 108, 56 L. Ed. 308; Railroad Com- mission of Ohio v. Worthington, 225 U. S. 101, 32 Sup. Ct. 653, 56 L. Ed. 1004. (2) Under the safety appliance act (Act March 2, 1893, c. 196, 27 Stat. 531 fU. S. Comp. St. 1901, p. 3174]) : Southern Rail- way Co. v. U. S., 222 U. S. 20, 32 Sup. Ct. 2, 56 L. Ed. 72; Pacific Coast Railway Co. v. U. S., 173 Fed. 448, 98 C. C. A. 31. (3) Under the employer's liability act (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St Supp. 1911, p. 1322]) : Mondou v. New York, N. H. & H. R. Co., 223 U. S. 1, 32 Sup. Ct. 169, 56 L. Ed. 327, 38 L. R. A. (N. S.) 44; Philadelphia, B. & W. R. Co. v. Schubert, 224 U. S. 603, 32 Sup. Ct. 589, 56 L. Ed. 911; Missouri Pac. R. Co. v. Castle, 224 U. S. 541, 32 Supp. Ct 606, 56 L. Ed. 875. (4) Under the pure food laws : Hipolite Egg Co. v. U. S., 220 U. S. 45, 31 Sup. Ct. 364, 55 L. Ed. 364; Savage v. Jones, 225 U. S. 501, 32 Sup. Ct. 715, 56 L. Ed. 1182 ; Standard Stock Food Co. v. Wright, 225 U. S. 540, 32 Sup. Ct. 784, 56 L. Ed. 1197. See "Courts," Dec. Dig. (Key-No.) 289; Cent. Dig. 830. 80 DISTRICT COURT MISCELLANEOUS JURISDICTION (Ch. 4 Suits on Debentures This is the tenth paragraph of section 24, and is a com- bination of the jurisdiction heretofore exercised by both the district and circuit courts. These debentures are issued in connection with the col- lection of duties, under the circumstances set out in sec- tions 3038-3042 of the Revised Statutes. 26 Suits for Injuries on Account of Acts Done under Laws of the United States This is paragraph 11 of section 24, and is a jurisdiction heretofore conferred on the circuit court. 27 Suits under the Civil Rights Amendments and Statutes These constitute paragraphs 12, 13, 14, and 15 of sec- tion 24. These acts have been the subject of some interesting decisions by the Supreme Court. It has been held that the exclusion of colored men from juries is a violation of these acts, and gives a colored man who is being proceeded against a good ground of exception. 28 The mere fact, however, of separating the races, is not a violation of this act, provided equal accommodations are furnished to both. This applies to their separation in public schools or on public conveyances. 29 And it has also been held that a statute which does not in terms discriminate against the 26 TJ. S. Comp. St. 1901, p. 1997-1909. 27 See Crawford v. Johnson, 6 Fed. Gas. 777; Knight v. Shelton (C. C.) 134 Fed. 423. See "Courts," Dec. Dig. (Key-No.) 282, 284; Cent. Dig. 820-838. 28 In re Virginia, 100 U. S. 339, 25 L. Ed. 676; Neal v. Delaware, 103 U. S. 370, 26 L. Ed. 567; Carter v. Texas, 177 U. S. 442, 20 Sup. Ct. 687, 44 L. Ed. 839. See "Civil Rights," Dec. Dig. (Key-No.) 10; Cent. Dig. 5; "Constitutional Law" Dec. Dig. (Key-No.) 221; Cent. Dig. 724. 29 Davenport v. Cloverport (D. C.) 72 Fed. 6S9; Gumming v. Board, 175 U. S. 528, 20 Sup. Ct. 197, 44 L. Ed. 262 ; Plessy v. Ferguson, 163 U. S. 537, 16 Sup. Ct. 1138, 41 L. Ed. 256. See "Civil Rights," Dec. Dig. (Key-No.) 5-9; Cent. Dig. 6-10; "Constitutional Law," Dec. Dig. (Key-No.) 215-220; Cent. Dig. 714-720. 30) PARTICULAR CLASSES OF CONTROVERSIES 81 colored race or deprive them of the right to vote is not void on that account where that result is merely incidental, and where it does not appear that there is any purpose in the administration of the law to discriminate against them. 30 Some of the provisions of the civil rights act of March 1, 1875, 31 have been held unconstitutional. 32 An interesting discussion of the subject will be found in Brawner v. Irwin 33 and Bailey v. Alabama (a peonage case). 34 Suits against National Banking Associations This is paragraph 16 of section 24. In substance it ap- plies to suits by the United States or its officers, and suits for winding up the affairs of such banks, and suits by such banks against the comptroller of the currency or any re- ceiver appointed by him under the provisions of the na- tional banking act. As to all other suits by or against national banks, the paragraph provides that such a bank shall be deemed a citizen of the state in which it is located. This paragraph combines the former district and circuit court jurisdiction given by the Revised Statutes with the qualifying clause as to citizenship taken from the acts of July 12, 1882, 35 and August 13, 1888. 38 so Williams v. Mississippi, 170 U. S. 213, 18 Sup. Ct 583, 42 L. Ed. 1012. See, in general, Civil Rights Cases, 109 U. S. 3, 3 Sup. Ct. 18, 27 L. Ed. 835. See "Elections," Dec. Dig. (Key-No.) 12; Cent. Dig. 8. si U. S. Rev. St. 1977 et seq. (U. S. Comp. St. 1901, p. 1259 et seq.) 32 Civil Rights Cases, 109 U. S. 3, 3 Sup. Ct. 18, 27 L. Ed. 835. Sec "Civil Rights," Dec. Dig. (Key-No.) 1; Cent. Dig. 1, 2; "Constitutional Law," Dec: Dig. (Key-No.) 209; Cent. Dig. 678. ss (C. C.) 169 Fed. 964. See "Civil Rights." Dec. Dig. (Key-No.) 1, 13; Cent. Dig. 1, 2, 11, 12; "Courts," Dec. Dig. (Key-No.) 282. 34 219 U. S. 219, 31 Sup. Ct. 145, 55 L. Ed. 191. See "Constitu- tional Law," Dec. Dig. (Key-No.) 83; Cent. Dig. 150-151%. 35 U. S. Comp. St. 1901, p. 3457. se U. S. Comp. St. 1901, p. 514. "'HUGHES FED.PB.(2D ED.) 6 82 DISTRICT COURT MISCELLANEOUS JURISDICTION (Ch. 4 Until these acts, the district court had jurisdiction of suits by or against national banks, regardless of either the question of citizenship or of the amount involved. 37 Suits between a national bank and a citizen of its own state can no longer be brought in the federal courts, unless there iS some other ground of jurisdiction involved in the suit, such as the existence of a federal question. 38 If the court would have jurisdiction of the cause pf action provided the na- tional bank was a state bank, it would still have jurisdic- tion, but these cases would go into the district court on the ground of diversity of citizenship or the existence of a federal question ; these grounds being discussed in another connection. 39 Suits by Aliens for Tort, and Suits against Consuls or Vice Consuls Jurisdiction of these cases is conferred on the district court by the seventeenth and eighteenth paragraphs of section 24. They are maintainable against a consul under these provisions, though the consul may be a citizen of the United States appointed as consul by some foreign power. 40 37 Kennedy v. Gibson, 8 Wall. 498, 19 L. Ed. 476. See "Banks and Banking," Dec. Dig. (Key-No.) 275; Cent. Dig. 1056-1066; "Courts," Dec. Dig. (Key-No.) 282. 33 National Bank of Jefferson v. Fore (C. C.) 25 Fed. 209; Union Nat. Bank v. Miller (C. C.) 15 Fed. 703. See "Banks and Banking," Dec. Dig. (Key-No.) 275; Cent. Dig. 1056-1066. 3? Leather Manufacturers' Nat. Bank v. Cooper, 120 U. S. 778, 7 Sup. Ct 777, 30 L. Ed. 816; Huff v. Union National Bank (C. C.) 173 Fed. 333; International Trust Co. v. Weeks, 203 U. S. 364, 27 Sup. Ct 69, 51 L. Ed. 224 ; post, p. 240. See "Banks and Banking," Dec. Dig. (Key-No.) 275; Cent. Dig. 1056-1066. 40 Baiz, In re, 135 U. S. 403, 10 Sup. Ct. 854, 34 L. Ed. 222. See, in general, lasigi v. Van De Carr, 166 U. S. 391, 17 Sup. Ct. 595, 41 L. Ed. 1045; Bors v. Preston, 111 U. S. 261, 4 Sup. Ct. 407, 28 L. Ed. 419. See "Ambassadors and Consuls," Dec. Dig. (Key-No.) 8; Cent. Dig. 23-25; "Courts," Dec. Dig. (Key-No.) 301, 518; Cent. Dig. 842. 31-32) DISTBICT COUET BANKRUPTCY 83 CHAPTER V THE DISTRICT COURT (Continued) BANKRUPTCY 31. Bankruptcy Jurisdiction Over. 32. Same History of the Legislation. 33. Same Policy of the Legislation. 34. Constitutionality of Bankrupt Legislation. 35. Same Effect of Federal on State Legislation. 36. The Bankruptcy Courts. 37. Parties Voluntary Proceedings. 38. Same Involuntary Proceedings. 39. Pleadings. 40. Acts of Bankruptcy Definition and Enumeration. 41. Same Transfers to Hinder, Delay, and Defraud Creditors. 42. Same Illegal Preferences. 43. Same Suffering Preferences by Legal Process. 44. Same Assignment as an Act of Bankruptcy. 45. Same Admission of Insolvency in Writing. 46. Time of Filing Petition. BANKRUPTCY JURISDICTION OVER 31. The district court is the principal tribunal exercising supervision over matters of bankruptcy. SAME HISTORY OF THE LEGISLATION 32. Several United States bankruptcy statutes have been in force at different intervals, varying somewhat in their nature according to the exigencies of the period. The present statute on the subject was put into force by the act of July 1, 1898. 1 U. S. Comp. St. 1901, p. 34ia 84 DISTRICT COURT BANKRUPTCY (Ch. 5 SAME POLICY OF THE LEGISLATION 33. The general policy of bankrupt laws is at once the re- lief of honest but unfortunate debtors, by enabling them to start life anew, relieved of a load of in- debtedness which would otherwise crush their fu- ture, and again the protection of the bankrupt's creditors, who find a remedy in its provisions for the better enforcement of their claims. The poli- cy of these laws has varied according as they have had most in view the protection of the cred- itor or the relief of the debtor. The necessity for uniform legislation on this subject vindicates the wisdom of vesting the national government with the power to regulate the question. Paragraph 19, 24, of the Judicial Code, confers on the district court original jurisdiction of all matters and pro- ceedings in bankruptcy. Article 1, 8, of the Constitution, conferred power upon Congress, among other things, to establish uniform laws on the subject of bankruptcies throughout the United States. This power was not exercised until 1800, when the first bankrupt law was passed. It remained in force but a short time. In 1841 another bankrupt law was passed, which also was repealed very shortly. Soon after the Civil War, and largely in consequence of the financial misfor- tunes which had been caused by it, the act of March 2, 1867, was passed. This law remained in force for over twenty years, when it, too, was repealed. Then for a period of about twenty years no national bankrupt law was in force, but the act of July 1, 1898, put into force the present statute on the subject. Bankrupt laws are based upon sound reasons of public policy, and the importance of having uniform laws of this character throughout the United States was the main rea- 33) POLICY OF LEGISLATION 85 son which induced the authors of the national Constitu- tion to confide that power to Congress instead of the states. By a national bankrupt law the rights of creditors can best be protected against frauds of dishonest debtors and partial state legislation in favor of the resident debtor against the nonresident creditor. On the other hand, a national bankrupt law, as distinguished from a state law, is in the interest of the honest debtor as well, for thereby alone can he obtain a release from all of his debts; since a state statute, which has no extraterritorial jurisdiction, could not discharge him from the claims of nonresident creditors. The proper purposes of a bankrupt act, there- fore, are to protect creditors from fraud, to secure an equal and equitable distribution of a debtor's estate among his creditors, and to relieve honest debtors from the burden of debts which have fallen upon them through misfor- tune, and which they could never pay. The state itself, as has been well said, has an interest in extending this relief to such debtors, since it is for the good of the state that all its members should be industrious, and contribute their efforts to building up the general prosperity. Any one who has been so unfortunate as to contract an enormous load of indebtedness, which he recognizes to be beyond his ability to pay, even by the labor of a lifetime, is liable to have his industry paralyzed, and to become a mere drone on society. On the other hand, if he is allowed to turn over all his property as a trust fund to his creditors, and secure a discharge from his indebtedness, he can start life anew, with the feeling that he will reap some benefit from his labor, and will thereby be induced again to become a useful member of the body politic. The policy of bankrupt laws has varied according as the lawmakers have had most in mind the protection of the creditor or the relief of the debtor. The act of March 2, 1867, with which the older members of the bar are familiar, was mainly a collection law in the interest of the creditor, 86 DISTRICT COURT BANKRUPTCY (Ch. 5 though it did not entirely lose sight of the interest of the debtor. The present law was in its inception mainly in the interest of the debtor. Subsequent amendments, however, have changed this considerably, and made it more of a collection law, though it still remains as to its distinctive features primarily in the interest of the debtor. A bankrupt law is in a certain sense a proceeding in rem. It treats the debtor's property as a trust fund, takes charge of it through the machinery of the bankrupt court, and divides it among his creditors. 2 Nothing can better illustrate the advance in civilization than the contrast between the present and former meth- ods of treating the debtor. The old laws of imprisonment for debt locked up many deserving, talented, and industri- ous citizens, withdrew them from the general class of pro- ducers, and made them a charge upon the community. The horrors of this state of affairs have played too promi- nent a part, in history and literature, to require more than a passing reminder. On the other hand, the abolition of imprisonment for debt and the enactment of the bankrupt laws have placed every citizen in a position where he not only can, but probably will, labor for the general weal, as he still has left the motive of acquisition, which is the mainspring of prosperity. In view of the object of a bankrupt law, the courts have treated such laws, not as special statutory proceedings, to be strictly construed, like attachment laws, but as remedial, and to be liberally construed. On this point Judge Deady has said in In re Muller: 3 "In the course of the argument counsel have insisted that this is a special proceeding, purely statutory, and that the act must be taken most 2 Hills v. The McKimmiss Co. (D. C.) 188 Fed. 1012. See "Bank- ruptcy," Dec. Dig. (Key-No.) 4; Cent. Dig. 3, 4. a Fed. Cas. No. 9,912. See, also, Blake, Moffit & Towne v. Valen- tine (D. C.) 89 Fed. 691; Norcross v. Nathan (D. C.) 99 Fed. 418; Botts v. Hammond, 99 Fed. 916, 920, 40 C. C. A. 179. See "Bank- ruptcy," Dec. Dig. (Key-No.) 4; Cent. Dig. S, 4. 34) CONSTITUTIONALITY OF LEGISLATION 87 strictly against the creditor and in favor of the bankrupt. In my judgment, this view of the matter is not supported by reason or authority. The act does not attempt to pun- ish the bankrupt, but to distribute his property fairly and impartially between his creditors, to whom in justice it belongs. It is remedial, and seeks to protect the honest creditor from being overreached and defrauded by the un- scrupulous. It is intended to relieve the honest but un- fortunate debtor from the burden of liabilities which he cannot discharge, and allow him to commence the business of life anew. The power to pass bankrupt laws is one of the express grants of power to the national government, and history teaches that the want of a uniform law on this subject throughout the states was one of the prominent causes which led to the assembling of the constitutional convention, and consequent formation and adoption of the federal Constitution. Such a statute is not to be con- strued strictly, as if it were an obscure or special penal en- actment, and this was the sixteenth instead of the nine- teenth century. The act establishes a system, and regu- lates, in all their details, the relative rights and duties of debtor and creditor. Such an act must be construed as, indeed, should all acts according to the fair import of its terms, with a view to effect its objects and to promote jus- tice." CONSTITUTIONALITY OF BANKRUPT LEGIS- LATION 34. A national bankrupt law may constitutionally provide for discharges from debts existing at the time of its passage; also for an adjudication without no- tice to creditors. It may limit the classes to which it applies, and adopt state exemptions, though they vary in the different states, without contra- vening the constitutional requirement of uniform- ity. 88 DISTRICT COUET BANKRUPTCY (Ch. 5 Although the Constitution forbids a state from passing any laws that would impair the obligation of contracts, there is no similar prohibition against congressional ac- tion. For this reason a national bankrupt law can ac- complish the objects of bankruptcy legislation when a state law could not; for Congress can pass a bankrupt law that would authorize the discharge of the debtor not only from debts incurred subsequent to the passage of the law, but also from debts existing at the time of its passage.* Under its power to pass a bankrupt law, Congress can also prescribe penal offenses for violation of its provisions, but it could not make a penal law ex post facto ; so that an act innocent at the time it was committed cannot be made, even by Congress, an offense upon the happening of some subsequent act either of the bankrupt or another. 5 As a bankrupt procedure is in the nature of a proceed- ing in rem, a bankrupt law is not invalid, as depriving creditors of their property without due process of law, be- cause it fails to provide for notice to them of the adjudi- cation of bankruptcy. Under the voluntary proceeding, as will be seen later on, the debtor, on filing his petition, is adjudged a bankrupt by the court without giving notice to his creditors ; but the law requires notice of subsequent proceedings to be given, so that, before any distribution of the property so surrendered by the debtor, the creditors have ample opportunity to prove their claims and litigate any questions in which they are interested. They also have opportunity to contest the right of the bankrupt to a discharge ; hence they have their day in court, and the law for that reason is constitutional. 6 * In re Owens, Fed. Cas. No. 10,032 ; Darling v. Berry (C. C.) 13 Fed. 659. See "Bankruptcy," Dec. Dig. (Key-No.) 5; Cent. Dig. 2. 5 U. S. v. Fox, 95 IT. S. 670, 24 L. Ed. 538. See "Bankruptcy," Dec. Dig. (Key-No.) 6; Cent. Dig. 2. e HANOVER NAT. BANK v. MOYSES, 186 U. S. 181, 22 Sup. Ct. 857, 46 L. Ed. 1113. See "Bankruptcy," Dec. Dig. (Key-No.) S; Cent. Dig. 1; "Constitutional Law," Dec. Dig. (Key-No.) 309; Cent. Dig. 929, 930. 34) CONSTITUTIONALITY OF LEGISLATION 89 The Constitution, giving Congress the power to enact bankruptcy laws, requires that they shall be uniform. The present act and the act of March 2, 1867, provided that the exemptions allowed by the different state laws should be preserved for the benefit of the bankrupt. As these varied in different states, it was contended under both of these statutes that the law was unconstitutional for lack of uniformity; but the courts have decided that this pro- vision did not destroy its uniformity, as it was uniform in its general provisions and procedure, and the states could best judge of the need of an exemption and the extent of it. 7 Nor does the act in its original form lose its character of uniformity from the fact that it allowed individuals to file a voluntary petition, but denied that privilege to a cor- poration, and the further fact that it limited the right of proceeding in involuntary cases to a certain class of cor- porations; for the law is still uniform as to the classes af- fected by it, and it is within the discretion of Congress to regulate the parties to whom such a law shall apply. The original bankrupt legislation of England applied only to traders, and the earlier legislation of this country was limited in the same way. There are not the same reasons for giving a corporation a discharge from its debts that ex- ist in the case of an individual. The ordinary procedure for winding up corporations is usually adequate, and, as to them, the reason of state policy which requires the debt- or to be encouraged by a discharge, in order to induce him to continue his labors, does not apply. Hence the only reason for applying a bankrupt law to a corporation is to secure an equitable distribution of its assets among its creditors, and that can ordinarily be accomplished in other ways. Therefore Congress can, in its discretion, discrim- 7 In re Beckerford, Fed. Cas. No. 1,209 ; Darling v. Berry (C. C.) 13 Fed. 659; HANOVER NAT. BANK v. MOYSES, 186 U. S. 181, 22 Sup. Ct. 857, 46 L. Ed. 1113. See "Bankruptcy," Dec. Dig. (Key- A'o.) 3; Cent. Dig. 1. 90 DISTRICT COUBT BANKRUPTCY (Ch. 5 inate between corporations and individuals, and also as among corporations themselves, in deciding whether to make a bankrupt law apply. 8 SAMEEFFECT OF FEDERAL ON STATE LEG- ISLATION 35. The national bankrupt laws do not invalidate state laws, but only cause them to become inoperative while the federal law remains in force. Validity of State Insolvent Laivs, and Effect on Such Laws of National Bankrupt Legislation In the absence of any national bankrupt legislation, a state can pass laws in the nature of local insolvent laws, intended to secure an equitable distribution of a debtor's estate among his creditors, and to relieve a debtor of an unbearable load of debt ; but, from their nature, these local laws can but partially accomplish their object. In the first place, the state cannot make them applicable to debts existing at the time of their passage, for the constitutional provision against impairing the obligation of contracts stands in the path. Nor can a state make such a law bind- ing on parties living beyond its jurisdiction, as the pow- er of a state does not extend beyond its own territory, and hence it cannot provide for giving the notice necessary to bind nonresidents. Such laws, however, are binding upon such nonresidents as voluntarily appear in the state court, prove their claim, and participate in the proceeding, for it is a mere question of notice, and by so appearing they submit themselves to the jurisdiction of the state court. 9 sLeidigh Carriage Co. v. Stengel, 95 Fed. 637, 37 C. C. A. 210; HANOVER NAT. BANK v. MOYSES, 186 TJ. S. 181, 22 Sup. Ct 857, 46 L. Ed. 1113. See "Bankruptcy" Dec. Dig. (Key-No.) 48; Cent. Dig. 38. Baldwin v. Hale, 1 Wall. 223, 17 L. Ed. 531 ; OILMAN v. LOCK- WOOD, 4 Wall. 409, 18 L. Ed. 432 ; Brown v. Smart, 145 U. S. 454, 35) EFFECT OF FEDERAL ON STATE LEGISLATION 91 When such state laws are in existence, and a national bankrupt law is passed, it supersedes but does not have the effect of completely nullifying the state law. It leaves it in a state of suspended animation, so that the instant the bankrupt law is repealed the state law conies again in- to effect, without any additional legislation by the state. On the same theory, if a state enacts a local law while a bankrupt law is in existence, that law is not absolutely null and void; it remains in suspension until the national bankrupt law is repealed, and then it takes immediate ef- fect. 10 But state laws giving additional remedies in aid of execution or in cases not covered by the bankrupt law are not superseded. 11 State laws regulating the administration of property conveyed under general assignments are not necessarily insolvent laws; and proceedings under them may be sus- tained when not in conflict with the bankrupt law, or in the absence of bankruptcy proceedings. 12 12 Sup. Ct. 958, 36 L. Ed. 773. See "Bankruptcy," Dec. Dig. (Key- No.) 9; Cent. Dig. 7-9; "Assignments for Benefit of Creditors," Dec. Dig. (Key-No.) 23; Cent. Dig. 75-77, 88; "Insolvency," Dec. Dig. (Key-No.) 2; Cent. Dig. 1. ioTua v. Carriere, 117 U. S. 201, 6 Sup. Ct. 565, 29 L. Ed. 855; Butler v. Goreley, 146 U. S. 303, 13 Sup. Ct. 84, 36 L. Ed. 981 ; In re Salmon & Salmon (D. C.) 143 Fed. 395; In re Pickens Mfg. Co. (D. <3.) 158 Fed. 894. See "Bankruptcy," Dec. Dig. (Key-No.) 9; Cent. Dig. 7-9. 11 Ex parte Crawford, 154 Fed. 769, 83 C. C. A. 474; State Nation- al Bank v. Syndicate Co. (C. C.) 178 Fed. 359. See "Bankruptcy," Dec. Dig. (Key-No.) 9; Cent. Dig. 7-9. 12 Johnson v. Crawford (C. C.) 154 Fed. 761; In re Farrell, 176 Fed. 505, 100 C. C. A. 63. See "Bankruptcy," Dec. Dig. (Key-No.) S; Cent. Dig. 7-9; "Assignments for Benefit of Creditors" Dec. Dig. (Key-No.) 23; Cent. Dig. 75-77, 88. 92 DISTRICT COURT BANKRUPTCY (Ch. 5 THE BANKRUPTCY COURTS 36. The courts of bankruptcy as designated by the statute, in the preliminary definitions, are the district courts of the United States and of the territories, the supreme court of the District of Columbia, and the United States courts of the Indian Terri- tory and of Alaska, and these tribunals are invest- ed with such powers as will enable them to exer- cise control in matters of bankruptcy. The question of the proper forum, as to locality, is fixed by the terms of the statute, together with certain rules of the Supreme Court promulgated under the authority of the statute. The second section of the bankrupt act provides that "the courts of bankruptcy, as hereinbefore denned, name- ly, the district courts of the United States in the several states, the supreme court of the District of Columbia, the district courts of the several territories, and the United States courts in the Indian Territory and the district of Alaska, are hereby made courts of bankruptcy, and are hereby invested, within their respective territorial limits as now established, or as they may be hereafter changed, with such jurisdiction at law and in equity as will enable them to exercise original jurisdiction in bankruptcy pro- ceedings in vacation, in chambers and during their respec- tive terms, as they are now or may be hereafter held," to do the various things incidental to the administration of the bankruptcy law. The Proper Forum as to Locality Under this section, the court having jurisdiction to ad- judge a person bankrupt is the court of the district where- in the bankrupt has had his principal place of business, resided, or had his domicile for the preceding six months,. 36) THE BANKRUPTCY COURTS 93 or the greater portion thereof, or who, though not having his principal business, residence, or domicile within the United States, has property within its jurisdiction, or who, though without the United States, has been adjudged bank- rupt by a court of competent jurisdiction, and has property within the jurisdiction of such district court. Under sec- tion 30 of the bankrupt law the Supreme Court is given the power to prescribe necessary rules, forms, and orders as to procedure in bankruptcy; and, pursuant to that right, certain rules were made by the Supreme Court at the October term, 1898, the first term after the bankrupt law was enacted. Under this power the court has pre- scribed that, where a proceeding has been instituted in more than one district, the first hearing shall be had in the district in which the debtor has his domicile, but in case of partnerships the first hearing shall be had on the petition first filed, or, in case of voluntary petitions by dif- ferent members of the same partnership, the court in which the petition is first filed shall take and retain jurisdiction, subject to the right prescribed by the bankrupt act to trans- fer cases to the district where it can be proceeded with for the greatest convenience of parties in interest. 13 Under these provisions, where a bankrupt had a work- shop in one district, but carried on business on his own account in another, it was held that the latter was a prop- er district in which to file a petition, though the court did not go so far as to say that it could not have been filed in the other. 14 So in an involuntary proceeding against a corporation which had its main works in Rhode Island, but had shut down there, and continued business in New York, where its executive and banking business was done, it was held that the petition could properly be filed in New York. 15 In the case of a party who spent most of his is Bankr. Rule 6, 172 U. S. 654, 18 Sup. Ct. v, 43 L. Ed. 1189. i* Tiffany v. La Plume Condensed Milk Co. (D. C.) 141 Fed. 444. See "Bankruptcy," Dec. Dig. (Key-No.) 16; Cent. Dig. 20. is In re Marine Machine & Conveyor Co. (D. C.) 91 Fed. 630. The 94 DISTRICT COURT BANKRUPTCY (Ch. 5 time abroad, it was held that he could still file his petition in the district of his domicile, if his original domicile had not been given up, and he had returned before filing his petition, with the intention of making his home at that point. 16 Under the power to transfer from one district to another given by section 32 of the act, an involuntary petition had been filed in Georgia, and the debtor had filed his voluntary petition in New York. He had lived in Georgia. The great bulk of his debts had been contracted there, and he was an employe of a corporation which was located in Georgia, and had succeeded to the business of his former firm. It was held in this case that Georgia was the proper and most convenient district, and that the right to transfer applied not simply to involuntary cases, but to an involuntary proceeding in one district, and a volun- tary in another. 17 But if a petition is filed where the debt- or had not resided or been domiciled, a creditor who wishes to object must do so promptly. He cannot come into the proceeding, prove his claim, and then urge this lack of ju- risdiction in opposition to the bankrupt's discharge; for by coming into the proceeding he has waived any objec- tions to jurisdiction; the question being merely one of personal jurisdiction, and not of jurisdiction over the sub- ject-matter. 18 principal place of business of a corporation is a question of fact, not necessarily controlled by its charter. Burdick v. Dillon, 144 Fed. 737, 75 C. C. A. 603 ; In re Matthews Consolidated Slate Co. (D. C.) 144 Fed. 724 ; In re Pennsylvania Consolidated Coal Co. (D. C.) 163 Fed. 579; In re Perry Aldrich Co. (D. C.) 165 Fed. 249. The fact that it has ceased operations where it had been conducting its prin- cipal business, and is engaged in liquidating its affairs, does not prevent proceedings against it in such district. Tiffany v. La Plume Condensed Milk Co. (D. C.) 141 Fed. 444; Robertson v. Union Pot- teries Co. (D. C.) 177 Fed. 279. See "Bankruptcy," Dec. Dig. (Key- No.) 16; Cent. Dig. 20. IB In re Williams (D. C.) 99 Fed. 544. See "Bankruptcy," Dec. Dig. (Key-No.) 14; Cent. Dig. 20. IT in re Waxelbaum (D. C.) 98 Fed. 589. See "Bankruptcy," Dec. Dig. (Key-No^ 18; Cent. Dig. 22. is in re Worsham, 142 Fed. 121, 73 C. C. A. 665; In re Walrath 37) PARTIES 95 PARTIES VOLUNTARY PROCEEDINGS 37. Any person who owes debts, except certain corpora- tions, may avail himself of the benefits of the act as a voluntary bankrupt. This, however, does not apply to any one non compos mentis, nor to one under legal disability. This applies to a resident alien. 19 Notwithstanding its broad language, however, there are some parties who can- not avail of the act. An infant cannot file a voluntary pe- tition in bankruptcy, nor can an involuntary petition be filed against him ; for an infant needs no discharge against the great mass of his debts. Hence, where an involuntary proceeding had been instituted against a partnership which had an infant member, the proceeding was dismissed as to him, though it was retained as to the other partners. 20 On similar principles, a lunatic cannot file a voluntary petition, nor can an involuntary petition be filed against him for debts incurred while non compos mentis, as a lunatic could not commit an act of bankruptcy. If, however, the act of bankruptcy was committed while sane, his supervening lunacy would not prevent a procedure against him. 21 Nor can a married woman file a voluntary petition, or be pro- ceeded against, except in states where her common-law (D. C.) 175 Fed. 243. See "Bankruptcy," Dec. Dig. (Key-No.) 21; Cent. Dig. 24. is In re Boynton (D. C.) 10 Fed. 277. See "Bankruptcy," Dec. Dig. (Key-No.) 13; Cent. Dig. 13-16. 20 in re Duguid (D. C.) 100 Fed. 274; In re Stein, 127 Fed. 547, 62 C. C. A. 272 ; Jennings v. Stannus, 191 Fed. 347, 112 C. C. A. 91. See "Bankruptcy," Dec. Dig. (Key-No.) 13; Cent. Dig. 13-16. 21 In re Marvin, Fed. Cas. No. 9,178; In re Pratt, Fed. Gas. No. 11,371 ; In re Weitzel, Fed. Cas. No. 17,365 ; In re Kehler, 153 Fed. 235 ; Id., 159 Fed. 55, 86 C. C. A. 245. See "Bankruptcy," Dec. Dig. (Key-No.) 13; Cent. Dig. 13-16. 96 DISTRICT COURT BANKRUPTCY (Ch. 5 disabilities have been removed, and she has power to con- tract. 22 The eighth section of the present bankrupt law provides, also, that the death or insanity of the bankrupt shall not abate the proceedings. This alludes to death or insanity supervening after the filing of the petition. The original act excluded corporations from the class entitled to file voluntary petitions. But the amendment of June 25, 1910, 23 changed this so as to deny the privilege only to "municipal, railroad, insurance or banking corporations." SAME INVOLUNTARY PROCEEDINGS 38. Under the fourth section of the bankrupt act, as amend- ed February 5, 1903, and June 25, 1910, any natu- ral person, except a wage earner, or a person en- gaged chiefly in farming or tillage of the soil, any unincorporated company, and any moneyed, busi- ness or commercial corporation, except a munici- pal, railroad, insurance or banking corporation, owing debts to the amount of one thousand dol- lars or over, may be adjudged an involuntary bankrupt. This is inapplicable to persons under legal disabilities, on the same principle as the ex- ception above stated in the case of voluntary bankruptcy. For reasons already given, infants, lunatics, and married women cannot be proceeded against under the qualifica- tions stated, so that they are excepted as much as if they had been expressly named. All other natural persons, ex- 22 In re Kinkead, Fed. Gas. No. 7,824; In re Goodman, Fed. Gas. No. 5,540; McDonald v. Tefft-Weller Co., 128 Fed. 381, 63 C. C. A. 123, 65 L. R. A. 106. See "Bankruptcy," Dec. Dig. (Key-Xo.) 13; Cent. Dig. 13-16. 23 36 Stat. 838 (U. S. Comp. St Supp. 1911, p. 1493). 38) PARTIES 97 cept those named in the act, may be proceeded against. The better opinion is that the status of the party at the time of the act of bankruptcy governs. 24 Wage Earners and Farmers The exception of wage earners from the list of involun- tary bankrupts introduces a large field for construction by the courts. The twenty-seventh of the preliminary defini- tions in the act defines it as meaning an individual who works for wages, salary, or hire, at a rate of compensation not exceeding $1,500 per .year. But for this definition, it would probably have been held to include those who work for wages, as distinguished from those who work for sal- aries, or compensation measured by the work rather than the period. The word "wages" usually implies the com- pensation of persons of small means. 25 Counsel fees are considered as above the grade of wages, and could hardly be included. 26 Under similar statutes, like lien acts, a con- tractor is not usually counted as an employe, nor his com- pensation as wages. 27 Another section of the act (section 64) names among the preferred debts wages due to work- men, clerks, or servants. It is not entirely safe to consid- er the decisions construing this section as in point in refer- ence to the meaning of "wage earner," for the use of dif- ferent language by Congress is indicative of different in- tent; and, besides, a clause changing the ordinary rule of equality would be .more strictly construed than the first. Under this latter section, however, it has been held that 2* In re Leland (D. C.) 185 Fed. 830. Compare In re Wakefield (D. C.) 182 Fed. 247. See "Bankruptcy," Dec. Dig. (Key-No.) 67; Cent. Dig. 17-18, 86, 87. 25 Gordon v. Jennings, 9 Q. B. Div. 45. See "Bankruptcy," Dec. Dig. (Key-No.) 68; Cent. Dig. 18, 86, 87. 26 Louisville, E. & St L. R. Co. v. Wilson, 138 U. S. 501, 11 Sup. Ct. 405, 34 L. Ed. 1023. See "Bankruptcy," Dec. Dig. (Key-No.) 68; Cent. Dig. 18, 86, 87. 27 Riley v. Warden, 2 Exch. 59; Vane v. Newcombe, 132 U. S. 220, 10 Sup. Ct. 60, 33 L. Ed. 310. See "Bankruptcy," Dec. Dig. (Key-No.) 68; Cent. Dig. 18, 86, 87. HUGHES FED.Pu.(2D ED.) 7 98 DISTEICT COURT BANKRUPTCY (Ch. 5 a traveling salesman who is paid a salary of five thousand dollars does not secure any priority on account of "wages due to workmen, clerks, or servants." 28 Nor does the clause apply to the general manager of a mercantile cor- poration, who is paid a salary of twelve hundred dollars per annum, or to the president of a business corporation who is paid a salary of seven hundred dollars per annum. 29 As to tillers of the soil, reference may be made to the cases cited below. 80 Decedents There is no such thing as a proceeding in involuntary bankruptcy against a decedent's estate. 31 The reason is that the ordinary laws for the administration of estates give ample remedies for securing its just distribution among creditors ; and, as far as the debtor is concerned, he can hardly be considered as interested in securing a dis- charge. Corporations As to the corporations against whom involuntary pro- ceedings may be taken, the policy of the law in its original form was very different from that of the act of March 2, 1867 (14 Stat. 517, c. 176). That act allowed the proceed- ing against all moneyed, business, and commercial corpo- ss in re Scanlan (D. C.) 97 Fed. 26; In re Greenewald (D. C.) 99 Fed. 705. See "Bankruptcy," Dec. Dig. (Key-No.) 68; Cent. Dig. 18, 86, 87. 2 In re Grubbs-Wiley Grocery Co. (D. C.) 96 Fed. 183; In re Car- olina Cooperage Co. (D. C.) 96 Fed. 950.. See "Bankruptcy," Dec. Dig. (Key-No.) 68; Cent. Dig. 18, 86, 87. so in re Thompson (D. C.) 102 Fed. 287; In re Luckhardt (D. C.) 101 Fed. 807; In re Wakefield (D. C.) 182 Fed. 347; In re Dwyer (C. C. A.) 184 Fed. 880; American Agricultural Chemical Co. v. Brinkley, 194 Fed. 411, 114 C. C. A. 373. Sec "Bankruptcy," Dec. Dig. (Key-No.) 68; Cent. Dig. 18, 86, 87. si Adams v. Terrell (C. C.) 4 Fed. 796. But the proceedings do not abate. In re Hicks, 107 Fed. 910; In re Spalding, 139 Fed. 244, 71 C. C. A. 370. See "Bankruptcy," Dec. Dig. (Key-No.) 25, 67; Cent. Dig. 53, 134. 39) PLEADINGS 99 rations and joint stock companies. The language of the present act as originally passed limited the procedure to corporations engaged principally in mining, manufactur- ing, trading, printing, publishing or mercantile pursuits. But the later amendments have made it about as wide as the act of March 2, 1867, and have rendered useless a num- ber of decisions construing the original act. PLEADINGS 39. Bankruptcy proceedings are instituted by filing a peti- tion sworn to by the petitioner, made out upon certain forms prescribed by the Supreme Court, which petition sets forth the facts necessary to show the jurisdiction and the grounds of bank- ruptcy. With the voluntary petition are filed various schedules showing creditors, liabilities, assets, securities, and exemptions. In the involuntary proceeding the schedules need only be furnished by the pe- titioner in the event the bankrupt is absent or cannot be found. All creditors with provable claims can file petitions in involuntary bankruptcy when an act of bankruptcy has been committed. In bankruptcy proceedings, amendments are free- ly allowed. A petition once filed cannot be dis- missed without notice to the creditors. Voluntary Proceedings Voluntary proceedings are instituted by the filing of a petition by the person entitled to the benefits of the act as a voluntary bankrupt. Form 1 82 prescribed by the Su- preme Court is used for this purpose. It contains allega- tions necessary to show the court the district in which it 32 172 U. S. C67, 18 Sup. Ct. xi, 43 L. Ed. 1195. 100 DISTRICT COURT BANKRUPTCY (Ch. 5 should be filed; also a statement that the petitioner owes debts which he is unable to pay in full, and that he is willing to surrender his property for the benefit of his creditors, except such as is exempt by law, and that he desires to obtain the benefit of the bankrupt act. It ends by a prayer that he be adjudged a bankrupt, and is sworn to. Annexed to the petition is a series of schedules. Schedule A contains a statement of the bankrupt's debts, and is subdivided so as to show (1) a statement of all creditors who are to be paid in full, or to whom priority is secured by law; (2) a statement of creditors holding secu- rities ; (3) a statement of creditors whose claims are unse- cured; (4) a statement of the bankrupt's liabilities on paper for which others are primarily liable; and (5) a statement of accommodation paper. Schedule B is a statement of the bankrupt's property, and is subdivided so as to show (1) his real estate; (2) his personal property, classified under numerous subhead- ings; (3) his choses in action, which are shown separate from his other personal property; (4) his property in re- version, remainder, or expectancy; (5) his property claim- ed as exempt; and (6) the books, papers, and other docu- ments relating to his business and estate. At the end of these two detailed schedules is a summary both of his debts and assets. This form requires the report of every thing claimed to be exempt, though, as a matter of fact, the exemption conies under the control of the bankrupt court only in a very qualified way. The eleventh subdi- vision of section 47 of the act requires the trustee to set apart the bankrupt's exemption, and report the items and estimated value thereof to the court as soon as practicable after his appointment. While, therefore, the bankrupt court has the power of examining into the exemption to this extent, yet, when the exemption has once been set apart, it belongs to the bankrupt exclusively, and the court has no jurisdiction of controversies concerning it, as it is 39) PLEADINGS 101 not part of the trust fund under the court's control. 88 The ' bankrupt court will follow the state decisions construing exemption laws. 84 Pension money claimed as exempt under the provisions of the federal statutes must be reported. 85 Partnership Petitions Form 2 36 of the forms prescribed is intended to be used for a partnership petition. The fifth section of the bank- rupt act contains careful provisions intended to secure the distribution of the partnership assets to the partnership debts, and the individual assets to the individual debts; hence the partnership petition must not only show the jurisdictional facts necessary, as in the case of the in- dividual petition, but it must further show separately the partnership assets and the assets of the individual part- ners. When all the partners join in a partnership peti- tion, the proceeding is a voluntary one ; and, if they should join in the petition, it is unnecessary for the individual part- ners to file separate petitions. 37 When a petition is filed by a portion only of the partners, which purports not only to be an individual petition, but a partnership petition, the proceeding as to the partners who do not join therein is an involuntary one, and they are entitled to notice, and an opportunity of contesting the proceeding. This is required by the eighth order in bankruptcy. 38 An individual peti- 33 in re Camp (D. C.) 91 Fed. 745; Id., 97 Fed. 981, 38 C. C. A. 689; In re Grimes (D. C.) 96 Fed. 529; In re Yeager (D. C.) 182 Fed. 951 ; In re Baughman (D. C.) 183 Fed. 668. See "Bankruptcy," Dec. Dig. (Key-No.) 400; Cent. Dig. 671-615. s* In re Wyllie, Fed. Cas. No. 18,112; In re Gerber, 186 Fed. 693, 108 C. C. A. 511. See "Bankruptcy," Dec. Dig. (Key-No.) 396; "Courts," Dec. Dig. (Key-No.) 366. 3 s in re Bean (D. C.) 100 Fed. 262. See "Bankruptcy," Dec. Dig. (Key-No.) 396, 400. se 172 U. S. 679, 18 Sup. Ct. xviii, 43 L. Ed. 1207. 37 in re Gay (D. C.) 98 Fed. 870. See "Bankruptcy," Dec. Dig. (Key-No.) 44. ss Metzker v. Bonebrake, 108 U. S. 66, 2 Sup. Ct. 351, 27 L. Ed. 654 ; In re Murray (D. C.) 96 Fed. 600 ; In re Altman (D. C.) 95 Fed. 102 DISTRICT COURT BANKRUPTCY (Ch. 5 tion, purporting to be on behalf of the individual only, would not involve any procedure against the partnership; for the individual member of a partnership may be insol- vent; and the other partners, and the partnership itself, may be perfectly solvent. As long as a partnership owes debts, bankruptcy pro- ceedings may be taken, for there is no "final settlement," in the language of the fifth section of the act, when debts are due, though there may be no assets. 39 When a voluntary petition is filed in the proper court, a bankruptcy adjudication is a matter of course, and it cannot be contested on the facts. Though the debtor may be solvent, if he voluntarily chooses to come into the bank- rupt court and surrender his property for the benefit of his creditors, the court, in the language of Judge Lowell, "takes him at his word, and makes provision for carry- ing out his intention of distributing his property." The creditors would have no right to complain, or to deny his right, though he were solvent; and hence, in the case of a voluntary petition, it is not necessary, in any event, to al- lege insolvency, and the creditors have no right to contest the filing of the petition. 40 If, however, a petition is filed in a court which has no jurisdiction of it, creditors may, by prompt action, move to dismiss the petition for want of jurisdiction; but they cannot appear and participate in the proceeding, and afterwards question the jurisdiction of the court by opposing the bankrupt's discharge on that ground. 41 263; 172 U. S. 656, 18 Sup. Ct. v, 43 L. Ed. 1190; In re Junck (D. C.) 169 Fed. 481. See "Bankruptcy," Dec. Dig. (Key-No.) 44. so in re Hirsch (D. C.) 97 Fed. 571. See "Bankruptcy," Dec. Dig. (Key-Ne.) 42. 40 in re Jehu (D. C.) 94 Fed. 638; HANOVER NAT. BANK v. MOYSES, 186 U. S. 181, 22 Sup. Ct 857, 46 L. Ed. 1113. See "Bank- ruptcy," Dec. Dig. (Key-No.) 47; Cent. Dig. 41, 42. 41 In re Waxelbaum (D. C.) 98 Fed. 589; In re Walrath (D. C.) 175 Fed. 243. See "Bankruptcy," Dec. Dig. (Key-No.) 47, 48; Cent. Dig. 41, 4. 39) PLEADINGS 103 A bankrupt may amend his petition by adding the name of creditors omitted, and it is not necessary to give notice of such intended amendment. 42 This right to amend is recognized by the eleventh order in bankruptcy. 43 When a petition has been filed, it cannot be dismissed without notice to the creditors. This is required by paragraph "g" of section 59 of the act. Involuntary Proceedings Form 3 44 provides for the case of an involuntary peti- tion. Its first paragraph shows the jurisdictional facts that is, the debtor's residence or place of business and al- so contains the allegation that he owes debts to the amount of one thousand dollars, as required by section 4b of the bankrupt act. It must show his business also. 45 Its next paragraph shows that the petitioners or creditors have provable claims in excess of the securities held by them to the sum of five hundred dollars, which is the requisite pre- scribed by section 59b of the act. It then sets out the claims. The next paragraph alleges insolvency, where necessary, and charges an act of bankruptcy; stating the facts of the act of bankruptcy with sufficient certainty to enable proper defense to be made. It cannot merely fol- low the language of the statute. 46 It prays for a sub- 42 in re Hill (D. C.) 5 Fed. 448. This decision was under the act of March 2, 1867 (14 Stat 517, c. 176). Section 17 (3) of the present act (Act July 1, 1898, c. 541, 30 Stat. 550 [U. S. Comp. St. 1901, p. 3428]) makes the discharge when granted bar all claims that have been duly scheduled in time for proof and allowance. Section 57n requires claims to be proved within one year from the adjudication. Hence an amendment so late as to deprive the creditor from shar- ing in the dividends or deny him a reasonable opportunity of prov- ing his claim would be refused. In re Kittler (D. C.) 176 Fed. 655. See "Bankruptcy," Dec. Dig. (Key-No.) 44; Cent. Dig. 43-46. 43 172 U. S. 657, 18 Sup. Ct v, 43 L. Ed. 1190. 4* 172 U. S. 681, 18 Sup. Ct. six, 43 L. Ed. 1208. 45 In re Taylor, 102 Fed. 728, 42 C. C. A. 1. See "Bankruptcy," Dec. Dig. (Key-No.) 81; Cent. Dig. 113-118. 4 In re Cliff e (D. C.) 94 Fed. 354; In re Nelson (D. C.) 98 Fed. 76. Bee "Bankruptcy," Dec. Dig. (Key-No.) 81; Cent. Dig. 118-118. 104 DISTRICT COURT BANKRUPTCY (Ch. 5 poena, and that the debtor be adjudged a bankrupt, and is sworn to. It would not seem, under the language of the act, to be necessary to file any schedule with an invol- untary petition at the outset, but the ninth order in bank- ruptcy 47 provides that, if the bankrupt is absent or cannot be found, the petitioning creditor must file, within five days after the adjudication, a schedule giving the names and places of residence of all the creditors of the bank- rupt, according to the best information of the petitioning creditor. The eleventh order in bankruptcy 48 allows these^ petitions also to be amended. The amendment may add additional grounds, and it may also make the averments of the petition more certain. 40 Not every creditor of the bankrupt can file such peti- tions. By the fifty-ninth section of the act, this can be done only by those who have provable claims. Those who have preferences cannot prove their claims, except to the excess of the debt over the security. This is regulated by the fifty-seventh and fifty-ninth sections of the act. The act as first passed provided that the claims of credit- ors who had received preferences should not be allowed unless such creditors should surrender their preferences. This, however, has been amended by the act of February 5, 1903, so that the present form of this paragraph provides that the claims of creditors who have received preferences voidable under section 60, subd. "b," or to whom convey- ances, transfers, assignments, or incumbrances void or voidable under section 67, subd. "e," have been made or given, shall not be allowed unless such creditors shall sur- render such preferences, conveyances, transfers, assign- ments, or incumbrances. 47 172 U. S. 656, 18 Sup. Ct. v, 43 L. Ed. 1190. 8 172 U. S. 657, 18 Sup. Ct. v, 43 L. Ed. 1190. 49 in re Mercur (D. C.) 95 Fed. 634; In re Nelson (D. C.) 98 Fed. 76; Ryan v. Hendricks, 166 Fed. 94, 92 C. C. A. 78; Millan v. Ex- change Bank, 183 Fed. 753, 106 C. C. A. 327. See "Bankruptcy" Dec. Dig. (Key-No.) 84; Cent. Dig. 126-129. 39) PLEADINGS 105 Under this amendment, those who have valid preferences can prove their claims without being held to waive their preferences. Under the act of 1867 it had been held that a secured creditor who came into the proceeding and proved his claim waived his preference. 50 A creditor of a partnership may prove against an indi- vidual member of the partnership, as that individual is still his debtor. 51 If the petition shows the requisite number and amount of creditors and debts on its face, the court has jurisdic- tion, and the proceeding could not be attacked collaterally by showing that, as a matter of fact, these jurisdictional facts did not exist. Such a question would be for the bankrupt court itself, and could not be inquired into by another court where the proceedings on their face appear to be regular. 52 Paragraph "f" of the fifty-ninth section of the act allows creditors other than the original petitioners to enter their appearance at any time and join in the pe- tition, or to file an answer, and be heard in opposition to the petition. If it develops on the examination of the question of fact that there is a deficiency of creditors, in number or amount, others who join in the petition under this provision can be counted, and the jurisdiction of the court will be upheld. 53 In estimating the amount, interest may be included -as part thereof. 54 BO in re Bear (D. C.) 5 Fed. 53. See "Bankruptcy," Dec. Dig. (Key- No.) 16, 864; Cent. Dig. 504. 51 In re Mercur (D. C.) 95 Fed. 634. See "Bankruptcy," Dec. Dig. (Key-No.) 309; Cent. Dig. 555-564. 52 In re Duncan, Fed. Cas. No. 4,131; In re Hecox, 164 Fed. 823, 90 C. C. A. 627 ; In re Dempster, 172 Fed. 357, 97 C. C. A. 51. See "Bankruptcy," Dec. Dig. (Key-No.) 21, 100; Cent. Dig. 24, 141- 144. s s in re Romanow (D. C.) 92 Fed. 510; In re Bedingfield (D. C.) 96 Fed. 190 ; In re John A. Etheridge Furniture Co. (D. C.) 92 Fed. 329. See "Bankruptcy," Dec. Dig. (Key-No.) 76, 77; Cent. Dig. 55, 99, 100. s* Sloan v. Lewis, 22 Wall. 150, 22 L. Ed. 832. See "Bankruptcy," Dec. Dig. (Key-No.) 77; Cent. Dig. 55, 101-108. 106 DISTRICT COUET BANKRUPTCY (Ch. 5 A creditor who joins in the proceeding cannot defeat the proceeding by subsequently withdrawing. 55 Under the provisions of the act, neither a voluntary nor involuntary petition can be dismissed, even by consent of parties, until after notice to the creditors. 56 This provision, however, alludes only to dismissals of petitions before a hearing on the merits. No notice is re- quired when the petition is dismissed by the court as the result of a trial. 57 The only party defendant to the petition in the first in- stance is the alleged bankrupt. If there is a proceeding against him, and he is a member of a partnership, other members of the partnership cannot voluntarily come in and submit the partnership to the proceeding, as the act provides opportunity for them to avail of it by filing sepa- rate petitions. 58 The petition must allege insolvency, except in cases where insolvency is not a material issue, and it must also charge an act of bankruptcy with reasonable certainty. This brings up for discussion the question, what consti- tutes acts of bankruptcy? Here it is important to remem- ber that the acts of the bankrupt alone are being consid- ered, and those simply for the purpose of deciding the question whether he should be adjudicated a bankrupt. There are many dealings by him which are acts of bank- ruptcy as far as he is concerned, and violations of the bankrupt law, and yet which are not voidable as to the grantees or beneficiaries under them. The bankrupt may intend to give a preference, for instance, and his act in SB in re Bedingfield (D. C.) 96 Fed. 190. See "Bankruptcy," Dec. Dig. (Key-No.) 77, 92. 56 Section 59g (U. S. Comp. St. 1901, p. 3445) ; In re Cronin (D. C.) 98 Fed. 584. See "Bankruptcy," Dec. Dig. (Key-No.) 48, 92; Cent. Dig. 47, 133-136. 57 Neustadter v. Dry Goods Co. (D. C.) 96 Fed. 830. See "Bank- ruptcy," Dec. Dig. (Key-No.) 50, 99; Cent. Dig. 136, 146. ss Mahoney v. Ward (D. C.) 100 Fed. 278. See "Bankruptcy," Dec. Dig. (Key -No.) 88; Cent. Dig. 58, 98-112. 40-41) ACTS OF BANKRUPTCY 107 giving it will be an act of bankruptcy; and yet the grantee, if he has not the knowledge, or means of knowledge, re- quired by the bankrupt law, may be enabled to sustain his preference. Hence at this stage of the proceeding, which involves simply the issue whether the defendant should be adjudicated a bankrupt, the question of the validity of his acts as to third parties is not involved. Those questions come up after adjudication, when proceedings are taken to set them aside. ACTS OF BANKRUPTCY DEFINITION AND ENUMERATION 40. Acts of bankruptcy are such acts as, in accordance with the terms of the statute, render- him who commits them a subject for involuntary bank- ruptcy proceedings. These acts, as specified in the third section of the act, may be enumerated as follows: (a) Transfers to hinder, delay, and defraud creditors. (b) Illegal preferences. (c) Suffering preference by legal process. (d) Assignments. (e) Admission of insolvency in writing. SAME TRANSFERS TO HINDER, DELAY, AND DEFRAUD CREDITORS 41. It is an act of bankruptcy for a person to convey, trans- fer, conceal, or remove, or permit to be concealed or removed, any part of his property, with intent to hinder, delay, or defraud his creditors, or any of them. This is broader in meaning than the state statutes based on the statute of Elizabeth. Solvency is a good defense to a petition filed un- der this act of bankruptcy. 108 DISTRICT COUET BANKRUPTCY (Ch. 5 This subdivision makes an act of bankruptcy any at- tempt to defraud creditors which would constitute a viola- tion of the state statutes based upon the statutes of Eliza- beth. However, it goes further than this. At common law, independent of the bankrupt act, a preference of one creditor over another by a debtor was not a violation of such statutes, if the debt was an actual, bona fide debt; but, under the bankrupt act, even a preference of one bona fide creditor over another is held to be not only an act of bankruptcy, but void, as intended to hinder, delay, and defraud creditors; and not only a preference of one credi- tor over another, but a debt of general assignment, secur- ing all creditors exactly alike, is held to be not only an act of bankruptcy, but void, as to the trustee in bankruptcy, as intended to hinder, delay, and defraud creditors; for its effect would be to withdraw the administration of the bankrupt's estate from the bankrupt court and place it in the hands of a trustee, and this would hinder the creditors from the collection of their debts through the court pri- marily designed for that purpose. 59 A sale of property, however, is not necessarily fraudu- lent, though the vendor is insolvent. If made in the ordi- nary course of business, without circumstances of suspi- cion, it would be valid as to the vendee, and could hardly be considered an act of bankruptcy. Any contrary doc- trine would put a clog upon the free alienation of property, which would be injurious in its effects upon the business community. 00 So, where a corporation issued bonds to 69 WEST CO. v. LEA, 174 U. S. 590, 19 Sup. Ct. 836, 43 L. Ed. 1098; Gutwillig, In re (D. C.) 90 Fed. 475. An assignment, if per- fected, is an act of bankruptcy, though invalid. Canner v. Webster Tapper Co., 168 Fed. 519, 93 C. C. A. 941; In re Federal Lumber Co. (D. C.) 185 Fed. 926. See "Bankruptcy," Dec. Dig. (Key-No.) 58; Cent. Dig. 57, 72-79. eo Tiff any v. Lucas, 15 Wall. 410, 21 L. Ed. 198; Richardson v. Shaw, 209 U. S. 365, 28 Sup. Ct. 512, 52 L. Ed. 835, 14 Ann. Cas. 981 ; In re McLoon (D. C.) 162 Fed. 575. See "Bankruptcy," Dec. Dig. (Key-No.) 57; Cent. Dig. 57, 66, 69-79. 42) ACTS OF BANKRUPTCY 109 take up its floated indebtedness, and conveyed its property in trust to secure them, with the idea of thereby placing itself in a better position to carry on its business, this could not be held to be an act of bankruptcy, though the corporation at the time might have been insolvent. 61 This first act of bankruptcy does not add, as several of the others do, the qualification that the act must be done while insolvent. However, paragraph "c" of section 3 provides that it shall be a complete defense to any pro- ceeding instituted under the first subdivision of the sec- tion to allege and prove that the party proceeded against was not insolvent, as defined in this act, at the time of filing the petition against him. In West Co. v. Lea 62 the Supreme Court decided that the subdivision in paragraph "c" referred simply to this provision relating to transfers to hinder, delay, and defraud creditors, and not to any of the others; hence, under this decision, solvency is a com- plete defense to a petition alleging such a conveyance by the debtor as is contemplated under this first subdivision. SAME ILLEGAL PREFERENCES 42. It is an act of bankruptcy for a person to transfer, while insolvent, any portion of his property to one or more of his creditors, with intent to prefer such creditors over his other creditors. In this act of bankruptcy the intent of the debtor alone is ma- terial. This act is described in section 3 as consisting of hav- ing "transferred while insolvent any portion of his prop- erty to one or more of his creditors, with intent to prefer such creditors over his other creditors." ei In re Union Pac. R. Co., Fed. Cas. No. 14,376. See "Bankrupt- cy," Dec. Dig. (Key-No.) 57; Cent. Dig. 57, 66, 69-79. 2 174 U. S. 590, 19 Sup. Ct. 836, 43 L. Ed. 1098. See "Bankrupt- cy," Dec. Dig. (Key-No.) 54; Cent. Dig. 54, 84, 85. 110 DISTRICT COURT BANKRUPTCY (Ch. 5 In considering this as an act of bankruptcy, independent of the question how far it is voidable, the intent of the debtor alone is material. If he intended a preference, the fact that the creditor was not aware of such intent, or had not such reasonable cause to suspect it as to charge him with knowledge, will not affect the act as an act of bank- ruptcy, however good a defense it may be to an attempt to set it aside as to the creditor. 63 When a debtor transfers property to cover a debt, and its necessary effect is to give the creditor a preference, the intent to prefer will be in- ferred, as that is a natural consequence of the act. 64 Pref- erences of this sort may be accomplished as well by a pay- ment in money as by a transfer of any other kind of prop- erty. 65 It is to be noted that intent is necessary in both the acts of bankruptcy so far described. SAME SUFFERING PREFERENCES BY LEGAL PROCESS 43. It is an act of bankruptcy for a person to suffer or per- mit, while insolvent, any creditor to obtain a pref- erence through legal proceedings, and not at least five days before a sale or final disposition of any property affected by such preference to vacate or discharge such preference. As the policy of the bankrupt law is an equitable dis- tribution of a bankrupt's estate among his creditors, it is es in re Rome Planing Mill Co. (D. C.) 96 Fed. 812. See "Bank- ruptcy," Dec. Dig. (Key-No.) 58; Cent. Dig. 57, 72-79, 83. 64 Johnson v. Wald, 93 Fed. 640, 35 C. C. A. 522; In re Smith (D. C.) 176 Fed. 426. See "Bankruptcy," Dec. Dig. (Key-No.) 58; Cent. Dig. 57, 72-79, 83. 6o in re Ft. Wayne Electric Corp., 99 Fed. 400, 39 C. C. A. 582. But not an innocent payment in the usual course of business. In re Morgan & Williams (D. C.) 184 Fed. 938. See "Bankruptcy," Dec. Dig. (Key-No.) 58; Cent. Dig. 57, 72-79, 83. 43) ACTS OF BANKRUPTCY 111 necessary to secure it not only against the acts of the bankrupt himself, but also against the attempt of his cred- itors to secure priority over each other. This is the object of this section, and, being its object, it is an act of bank- ruptcy, if such a result is brought about by the creditors, though the bankrupt himself is not privy to their act, and merely suffers them to proceed. Under this section an intent of the debtor is unnecessary, which sharply distin- guishes it from the two preceding sections, and also from the corresponding section of the bankrupt act of 1867. This clause of the act came under the consideration of the Su- preme Court in Wilson v. Nelson. 66 There a debtor, long before the filing of a petition in bankruptcy, and indeed before the enactment of the bankrupt law, had given a creditor an irrevocable power of attorney to confess judg- ment upon a promissory note. After the bankrupt act went into effect, the creditor executed this power of at- torney, and proceedings were instituted, alleging that the act of the debtor in permitting the execution of this power of attorney was an act of bankruptcy. The court sustained this contention, although the debtor had merely passively acquiesced, and in fact was powerless to do anything. The opinion was based upon the language of the present act, and distinguished cases decided under the old act, which it held were no longer in point. Prior to this decision, some decisions of inferior courts had held that in the case of a power of attorney given under similar circumstances, and afterwards executed, the act of the debtor in permit- ting it was not an act of bankruptcy, but these cases must now be considered as overruled. Care must be taken, however, to distinguish this case from a procedure to foreclose a lien created before the act, or so long before the filing of the petition as not to ee 183 U. S. 191, 22 Sup. Ct 74, 46 L. Ed. 147. See "Bankruptcy," Dec. Dig. (Key-No.) 59; Cent. Dig. 81, 82. 112 DISTRICT COURT BANKRUPTCY (Ch. 5 be subject to attack. In such case the fact that the lien is foreclosed afterwards does not make it an act of bank- ruptcy on the part of the debtor. The distinction is due to the fact that no lien arises at the time of giving a power of attorney to confess judgment, and the mere giving of that power of attorney does not enable a creditor to obtain a preference, as it may never be executed, whereas, in pro- ceedings to foreclose a lien, the lien is already in existence, and the obtaining of the preference would date back to the time of executing the lien, and not, as in the case of a pow- er of attorney, to the time of executing the power of at- torney. 67 Under this clause, however, the mere appoint- ment of a receiver for a corporation would not be an act of bankruptcy, as no final disposition of the property would be made by such appointment. 68 Creditors who wish to proceed under this section do not have to wait until an actual sale, or disposition of the property. If a sale has been advertised, they can proceed within five days before the advertisement is to be carried out.! 9 No actual participation by the debtor is necessary, but mere passive submission is an act of bankruptcy under this clause, if the result is that the creditor secures the preference. 70 e 7 in re Chapman (D. C.) 99 Fed. 395; In re Ferguson (D. C.) 95 Fed. 429; METCALF BROS. v. BARKER, 187 U. S. 165, 23 Sup. Ct. 67, 47 L. Ed. 122. See "Bankruptcy," Dec. Dig. (Key-No.) 59; Cent. Dig. 81, 82. es in re Baker-Ricketson Co. (D. C.) 97 Fed. 489. See "Bankrupt- cy," Dec. Dig. (Key-No.) 59; Cent. Dig. 81, 82. 69 In re Rome Planing Mill Co. (D. C.) 96 Fed. 812. An advertise- ment of a sale in attachment proceedings to save expense does not come under this provision, as it only substitutes money for property and does not diminish the debtor's estate. In re Crafts-Riordon Shoe Co. (D. C.) 185 Fed. 931. The title of the trustee is transferred to the proceeds. Jones v. Springer, 226 U. S. 148, 33 Sup. Ct. 64, 57 L. Ed. . See "Bankruptcy," Dec. Dig. (Key-No.) 59; Cent. Dig. 81, 82. TO in re Reichman (D. C.) 91 Fed. 624; In re Cliff e (D. C.) 94 Fed. 354; In re Tupper (D. C.) 163 Fed. 766, 772. See "Bankruptcy," Dec. Dig. (Key-No.) 59; Cent. Dig. 81, 82. 44) ACTS OF BANKRUPTCY 113 The language of this clause is conditioned upon the debtor not having, at least five days before a sale or final disposition of any property affected by such preference, vacated or discharged such a preference. The privilege of vacating or discharging thus given to the debtor would seem, however, to be rather an empty one. If he goes and pays off the creditor and releases the property, and is in- solvent when he does it, that would be an act of bank- ruptcy of itself. Hence, if he is actually insolvent, about the only thing he can do is to file a petition in bankruptcy himself; and this procedure is hinted at in the decisions. 71 But even that privilege cannot be exercised by some corpo- rations, so that, if such a corporation is insolvent, nothing remains but to let matters take their course. Either an individual or a corporation can defend on the ground of solvency, if the facts sustain it, for in this subdivision in- solvency is a necessary requisite. SAME ASSIGNMENTS AS AN ACT OF BANK- RUPTCY 44. It is an act of bankruptcy for a person to make a gen- eral assignment for the benefit of his creditors, or, being insolvent, to apply for a receiver or trustee for his property, or when, because of insolvency, a receiver or trustee is put in charge of his prop- erty under the laws of a state, of a territory, or of the United States. In the act as originally passed, any one committed an act of bankruptcy who made a general assignment for the benefit of his creditors. To this the amendment of Febru- 7i WILSON v. NELSON, 183 U. S. 191, 22 Sup. Ct. 74, 46 L. Ed. 147 ; In re Moyer (D. C.) 93 Fed. 188 ; In re Tupper (D. C.) 163 Fed. 766, 771. See "Bankruptcy," Dec. Dig. (Key-No.) 59; Cent. Dig. 81, 82. HUGHES FED.PB.(2o ED.) 8 114 DISTRICT COURT BANKRUPTCY (Ch. 5 ary 5, 1903, has added the following words: "or being in- solvent applied for a receiver or trustee for his property, or because of insolvency, a receiver or trustee has been put in charge of his property under the laws of a staie, of a territory, or of the United States." Under the act of 1867, the mere making of a general assignment, though without preferences, was an act of bankruptcy, as it was evidence of an intent to prevent the administration of the debtor's property in the bankrupt court; 72 and the making of a general assignment is an act of bankruptcy, independent of any intent on the part of the debtor to defeat the operation of the law, and inde- pendent of the fact whether he is insolvent or not, for neither intent nor insolvency are specified as essentials un- der this clause as it stood in the original draft of the present act. 73 It has even been held that a paper purporting to be an assignment is an act of bankruptcy, though, as a matter of fact, it is invalid, and though it is a partnership assignment that does not convey individual property. 74 In Rumsey & Sikemier Co. v. Novelty & Machine Mfg. Co. 75 it was held that, as the act applies only to general assignments, a debt which reserved a balance to the gran- tor after payment of creditors, if not in actual bad faith, or with no intent to evade the law, was not a general as- signment, and did not contravene the act. This decision would seem subject to serious question. If it purported to be a conveyance of all the bankrupt's property to secure 72Boese v. King, 108 TJ. S. 379, 2 Sup. Ct. 765, 27 L. Ed. 760; WEST CO. v. LEA, 174 U. S. 590, 19 Sup. Ct. 836, 43 L. Ed. 1098. See "Bankruptcy" Dec. Dig. (Key-No.) 60; Cent. Dig. 80. 73 WEST CO. v. LEA, 174 U. S. 590, 19 Sup. Ct. 836, 43 L. Ed. 1098. See "Bankruptcy," Dec. Dig. (Key-No.) 60; Cent. Dig. 80. 74 in re Meyer, 98 Fed. 976, 39 C. C. A. 368. See "Bankruptcy," Dec. Dig. (Key-No.) 60; Cent. Dig. 80. 75 (D. C.) 99 Fed. 699. This was overruled in the later case of In re Thomlinson Co., 154 Fed. 834, 83 C. C. A. 550. See "Bankruptcy," Dec. Dig. (Key-No.) 60; Cent. Dig. 80. 44) ACTS OF BANKRUPTCY 115 all his creditors, it is difficult to see how a mere reservation of any unused balance would prevent it from being a gen- eral assignment. However, creditors who prove their claims before the assignee, and participate in the benefit of the general assignment, could not come into court after- wards and allege such assignment as an act of bank- ruptcy. 76 An application of a corporation under a state statute for a dissolution and the appointment of a receiver would not be a general assignment or an act of bankruptcy, under the language of the original act. 77 In consequence of the decisions holding that the appoint- ment of a receiver was not an act of bankruptcy under the original act, the amendment was introduced which has been set out above. Clearly, under it, the appointment of a receiver, either at the request of or against the wishes of the alleged bankrupt, is an act of bankruptcy, if such appointment is made on the ground of insolvency. Hence insolvency, while not an essential under the first part of this fourth clause as it now stands, is essential under the part added by the amendment. However, the appointment of a receiver on other grounds than insolvency would still not be an act of bankruptcy. 78 76 Simonson v. Sinsheimer, 95 Fed. 948, 37 C. C. A. 337; In re Romanow (D. C.) 92 Fed. 510; Moulton v. Coburn, 131 Fed. 201, 66 C. C. A. 90. See "Bankruptcy," Dec. Dig. (Key-No.) 76. 77 In re Empire Metallic Bedstead Co., 98 Fed. 981, 39 C. C. A. 372. See "Bankruptcy," Dec. Dig. (Key-No.) GO; Cent. Dig. 80. 7 s in re Edward Ellsworth Co. (D. C.) 173 Fed. 699; In re Hud- son River Electric Co. (D. C.) 173 Fed. 934 ; Id., 183 Fed. 701, 106 C. C. A. 139, 33 L. R. A. (N. S.) 454 ; In re Electric Supply Co. (D. C.) 175 Fed. 612 ; In re Boston & Oaxaca Mining Co. (D. C.) 181 Fed. 422. The appointment of receivers of an insolvent corporation at its request is an act of bankruptcy, though unauthorized by law. Ex- ploration Mercantile Co. v. Pacific Hardware & Steel Co., 177 Fed. 825, 101 C. C. A. 39. See "Bankruptcy," Dec. Dig. (Key-No.) 60; Cent. Dig. 80. 116 DISTRICT COURT BANKRUPTCY (Ch. 5 SAME ADMISSION OF INSOLVENCY IN WRITING 45. It is an act of bankruptcy for a person to admit in writing his inability to pay his debts, and his willingness to be adjudged a bankrupt on that ground. This act of bankruptcy is thu v s denned in the act, "ad- mitted in writing his inability to pay his debts, and his willingness to be adjudged a bankrupt on that ground." The admission must be unqualified, and must be before the filing of the petition. For instance, a corporation which passed a resolution authorizing one of its officers to make this admission in the event of an involuntary petition in bankruptcy being filed against said company did not accomplish its purpose, for, under the language of the ad- mission, it could not be made until the petition was filed, and, under the language of the bankrupt act, a petition could not be filed until it had made an admission in writ- ing, and that admission had to be set out in the petition. It is an interesting question what officers of a corpora- tion can make an admission of this sort, fraught with such far-reaching consequences. Under ordinary principles of corporation law, a board of directors has power to do any- thing necessary in carrying on the business of the com- pany, but it has not power to take steps which might cause a dissolution of the company. Hence it has been held that, under the law of Massachusetts, this admission can- not be made by the board of directors, and that even a subsequent vote of the stockholders could not date back so as to make it valid. 80 Undoubtedly the stockholders TO In re Baker-Ricketson Co. (D. C.) 97 Fed. 489. See "Bankrupt- cy," Dec. Dig. (Key-No.) 61. so in re Bates Mach. Co. (D. C.) 91 Fed. 625. See "Bankruptcy," Dec. Dig. (Key-No.) 63. 46) TIME OF FILING PETITION 117 themselves could make or authorize such an admission, for they can wind up the corporation. The question de- pends largely upon the corporation laws of the different states. In Re Marine Machine & Conveyor Co. 81 an ad- mission by the president and directors was held sufficient, though the question of their power to make it did not seem to have received any special attention. TIME OF FILING PETITION 46. The petition must be filed within four months after the commission of the act of bankruptcy. Petitions must be made in duplicate, and both the original and duplicate must be filed within this period. Where the act consists of having made a transfer with intent to defraud or to give a preference, or of having made a general assignment, the four months date from the re- cording of the paper, if it is a paper that requires record. 82 If the transfer or preference, however, is made by such an act or writing that it does not require record, the four months date from the time when the beneficiary takes no- torious, exclusive, or continuous possession of the property, si (D. C.) 91 Fed. 630. See, also, In re Rollins Gold & Silver Min. Co. (D. C.) 102 Fed. 982. See, as to powers of the board of directors and other officers, Cresson & Clearfield Coal & Coke Co. v. Stauffer, 148 Fed. 981, 78 C. "C. A. 609; In re Quartz Gold Mining Co. (D. C.) 157 Fed. 243 ; Van Emon v. Veal, 158 Fed. 1022, 85 C. C. A. 547 ; In re Burbank Co. (D. C.) 168 Fed. 719; In re Southern Steel Co. (D. C.) 169 Fed. 702 ; In re American Guarantee & Security Co. of Cali- fornia (D. C.) 192 Fed. 405. The admission is sufficient to author- ize an adjudication, though the corporation may not in fact be in- solvent. In re Northampton Portland Cement Co. (D. C.) 179 Fed. 796. See "Bankruptcy," Dec. Dig. (Key-No.) 63. 82 The necessity of record and the question as to who are included under the term "creditors" depends upon the provisions of the local statute and its construction by the local courts. Holt v. Crucible Steel Co., 224 TJ. S. 262, 32 Sup. Ct. 414, 56 L. Ed. 756. See "Bank- ruptcy," Dec. Dig. (Key-No.) 79. 118 DISTRICT COURT BANKRUPTCY (Ch. 5 unless petitioning creditors have received actual notice of such transfer or assignment. Under section 59c, petitions must be in duplicate; and accordingly it has been held that both the original and the duplicate must be filed with- in the four months, and that the failure to file the dupli- cate is not such an error as can be subsequently corrected under the eleventh order in bankruptcy. 83 The day on which the act of bankruptcy is committed is excluded in the computation of the time. 84 The four months date from the act of bankruptcy, not from the mere recording of any paper indirectly connected with it. Hence, where an in- solvent corporation sold land, and used the proceeds to pay some of its creditors, and this use of the proceeds was at- tacked as a preference, it was held that the time ran from the date of the payments to the creditors, not from the date of recording the deed of sale of the land. 88 s s in re Stevenson (D. C.) 94 Fed. 110; In re Dupree (D. C.) 97 Fed. 28. But the requirement is waived by defending on other grounds. In re Plymouth Cordage Co., 135 Fed. 1000, 68 C. C. A. 434. A copy certified by the clerk and served on the bankrupt is a compliance with the statute. Millan v. Exchange Bank, 183 Fed. 753, 106 C. C. A. 327. See "Bankruptcy," Dec. Dig. (Key-No.) 79. s* Id. 85 in re Mingo Valley Creamery Ass'n (D. C.) 100 Fed. 282. See "Bankruptcy" Dec. Dig. (Key-No.) 79. 47) DISTRICT COURT BANKRUPTCY 119 CHAPTER VI THE DISTRICT COURT (Continued) BANKRUPTCY (Continued) 47. The Process on an Involuntary Petition. 48. The Warrant of Seizure. 49. The Appointment of a Receiver. 50. The Defense. 51. The Right to a Jury. 52. The Adjudication. 53. The Creditors' Meeting. 54. The Examination of the Bankrupt. THE PROCESS ON AN INVOLUNTARY PETITION 47. The process in an involuntary proceeding consists of an order to show cause, as a preliminary, and service of a copy of the petition and a writ of sub- poena upon the defendant. The subpoena is simi- lar to the original equity subpoena, and its service is like that of the equity subpoena, except in cer- tain respects specified by the statute. In case personal service cannot be made, an order of pub- lication is provided for, which is modeled upon the order prescribed in suits to enforce equitable claims. Section 18a of the bankruptcy act of 1898 (30 Stat. 551, c. 541 [U. S. Comp. St. 1901, p. 3429]) provides that, upon the filing of a petition for involuntary bankruptcy, service thereof, with a writ of subpoena, shall be made upon the person therein named as defendant in the same manner that service of such process is now had upon the com- mencement of a suit in equity in the courts of the United States, except that it shall be returnable within fifteen days unless the judge shall, for cause, fix a longer time. 120 DISTRICT COURT BANKRUPTCY (Ch. 6 The original act went on to provide that, in case per- sonal service cannot be made, then notice shall be given by publication in the same manner and for the same time as provided by law for notice of publication in suits in equity in courts of the United States. The amendment of February 5, 1903 (32 Stat. 797, c. 487 [U. S. Comp. St. Supp. 1911, p. 1491]), changed this last clause by providing that this notice of publication shall be given in the same manner and for the same time as pro- vided by law for notice by publication in suits to enforce a legal or equitable lien in courts of the United States, ex- cept that, unless the judge shall otherwise direct, the or- der shall be published not more than once a week for two consecutive weeks, and the return day shall be ten days after the last publication, unless the judge shall, for cause, fix a longer time. Under this provision the first process on an involuntary petition is an order to show cause, providing also that a copy of the petition and a writ of subpoena be served upon the defendant. A form of such an order to show cause is given as form 4 x of those prescribed by the Supreme Court of the United States, and the subpoena as No. 5 2 of the same forms. This subpoena is not in the exact form of the original equity subpoena, and the act does not require it to be, but merely requires that its service shall be like that of the equity subpoena, except in the particulars named. 3 This subpoena must be issued, and cannot be waived by the bankrupt. He can accept service on it, but he cannot stop its issue. This is for the reason that creditors also can contest an involuntary petition, and the issuance of the 1 172 U. S. 682, 18 Sup. Ct. xx, 43 L. Ed. 1209. 2 172 U. S. 683, 18 Sup. Ct. xx, 43 L. Ed. 1209. s A service on an adult member of the bankrupt's family in case of his absence is a personal service in the sense of and under the provisions of equity rule 13 (29 Sup. Ct. xxvi). In re Norton (D. C.) 148 Fed. 301. See "Bankruptcy," Dec. Dig. (Key-No.) 86. 47) THE PROCESS ON AN INVOLUNTABY PETITION 121 subpoena is necessary in order to fix a return day within which creditors can contest.* In case the subprena is not served, the court can order an alias. 5 The Order of Publication In case personal service cannot be made, an order of publication can be had as prescribed by the act. This or- der of publication is modeled upon the order prescribed in suits to enforce equitable liens. Section 738 of the Re- vised Statutes first provided for service by publication in such cases, but its provisions were enlarged and practically superseded by the act of March 3, 1875. 6 It provides, in substance, that, when personal service cannot be made, "it shall be lawful for the court to make an order directing such absent defendant, or defendants, to appear, plead, an- swer or demur, by a day certain to be designated." No form of an order of publication is given among those pre- scribed by the Supreme Court. Such an order would be a simple one, and need only follow the statute. The fol- lowing is suggested as a form for the purpose: "It appearing that personal service cannot be made upon the defendant herein, it is ordered that said defendant do appear, plead, answer, or demur to the petition within ten days from the last publication hereof, at , in the District of ; and it is fur- ther ordered that this order be published in the , a newspaper published in the , of , in , District of , where this suit is pending, on the day of and the day of " * In re L. Humbert Co. (D. C.) 100 Fed. 439. But the failure to Issue the subprena on account of such waiver does not affect the va- lidity of the adjudication as to any except creditors who did not ac- quiesce in it or who desire to make defense to the petition. In re Western Inv. Co. (D. C.) 170 Fed. 677. See "Bankruptcy," Dec. Dig. (Key-No.) 87. s Gleason v. Smith, 145 Fed. 895, 76 C. C. A. 427. See "Bankrupt- cy," Dec. Dig. (Key-No.) 86. TJ. S. Comp. St 1901, p. 513, now section 57 of the Judicial Code. 122 DISTBICT COURT BANKRUPTCY (Ch. 6 THE WARRANT OF SEIZURE 48. If, through danger of dissipation of the property, a ne- cessity appears therefor, it is provided that an order may issue for the seizure of the property on behalf of the court, on satisfactory affidavits hav- ing been given, with bond. The petitioning creditors may simply issue and serve the notice above, without any interference with the prop- erty of the defendant bankrupt. If, however, they believe that there is danger of its dissipation, they are permitted, by section 69a of the act, on satisfactory proof by affidavit that the bankrupt has neglected, or is neglecting, or is about to so neglect his property that it has thereby de- teriorated, or is thereby deteriorating, or is about thereby to deteriorate in value, to apply to the judge for a warrant to the marshal to seize and hold it subject to further or- ders, and the judge is authorized to issue such a warrant. In such case a bond must be given to indemnify the bank- rupt for any damages inflicted. This provision evidently contemplates such a procedure after the filing of the peti- tion, and requires at least a prima facie case to be made by affidavit. The bond prescribed by it and by section 3e of the act is only in case it is desired before adjudication to protect the property, as is evident from the language of these two sections. After adjudication the court has constructive custody of the property, and in such case it can proceed by summary process to take charge of the property, without requiring a bond. 7 This warrant to the marshal authorizes the seizure not only of property in the hands of the bankrupt himself, but 7 BRYAN v. BERNHEIMER, 181 U. S. 188, 195, 21 Sup. Ct. 557, 45 L. Ed. 814. See "Bankruptcy," Deo. Dig. (Key-No.) 109, 288. 48) THE WARRANT OF SEIZURE 123 ' also of property claimed to be his that may be found in other hands. 8 This fact, however, should not be allowed to confuse the procedure under the involuntary petition with the sum- mary procedure to gain possession of the property. The only proper issue in the involuntary petition itself is whether the bankrupt has committed an act of bankruptcy. That is the only issue which the law contemplates as being tried upon that petition, and it would be bad practice to combine in the same petition a proceeding against third parties. That should be raised by an additional petition to the court, or rule to show cause, so as to keep the two is- sues entirely separate. 9 Under such a warrant the marshal may be directed to take charge of property in the hands of an assignee under a general assignment, as the bankruptcy act supersedes proceedings of this sort in state courts under state in- solvent laws. 10 The Supreme Court has held that where there has been an adjudication in bankruptcy, but a trustee has not been appointed, the bankrupt court could retake the property by summary process, on petition, out of the hands of parties who had replevied the property in the bankrupt's posses- sion after the adjudication. The court, however, bases this right rather upon subdivision 15 of section 2, allowing the courts to make such orders, issue such process, and enter such judgments in addition to those specifically provided for as may be necessary for the enforcement of the provi- sions of this act, and upon clause 3 of bankruptcy ordeJ* s BRYAN v. BERNHEIMER, 181 U. S. 188, 195, 21 Sup. Ct. 557, 45 L. Ed. 814. See "Bankruptcy," Dec. Dig. (Key-No.) 116. In re Kelly (D. C.) 91 Fed. 504. See "Bankruptcy," Dec. Dig (Key-No.) 116. 10 In re Sievers (D. C.) 91 Fed. 366; Davis v. Bohle, 92 Fed. 325, 34 C. C. A. 372 ; Bryan v. Bernheimer, 181 U. S. 188, 21 Sup. Ct. 557, 45 L. Ed. 814. See "Bankruptcy," Dec. Dig. (Key-No.) 116. 124 DISTRICT COURT BANKRUPTCY (Ch. 6 12, 11 than upon the clause authorizing the order of sei- zure. 12 This warrant can also be used to compel the agent of the bankrupt, who has bankrupt money in his possession and asserts no adverse claim, to deliver the money to a proper custodian. In such case a mere refusal to surrender the money does not constitute an adverse claim, and the party holding it can be proceeded against by a rule to show cause. 13 This principle, however, does not interfere with the gen- eral principle of comity of courts. If a state court has pos- session of bankrupt's property to enforce a lien created not against the provisions of the bankrupt act, and is proceed- ing to enforce that lien, the bankrupt court will not dispos- sess it merely because the final judgment enforcing the lien may come within the four months named in section 67 of the bankrupt act. 1 * THE APPOINTMENT OF A RECEIVER 49. Further provision is made for the protection of the bankrupt estate in the allowance of a receiver for this purpose when necessity therefor is shown. But this step is by no means a matter of course, and the exercise of the power should be carefully guarded. 11 172 U. S. 657, 18 Sup. Ct vi, 43 L. Ed. 1190. 12 White v. Schloerb, 178 U. S. 542, 20 Sup. Ct. 1007, 44 L. Ed. 1183. See "Bankruptcy," Dec. Dig. (Key-No.) 211. is Mueller v. Nugent, 184 U. S. 1, 22 Sup. Ct. 269, 46 L. Ed. 405. As to the issue of summary process, see In re Brodbine, 93 Fed. 643 ; Mound Mines Co. v. Hawthorne, 173 Fed. 882, 97 C. C. A. 394. See "Bankruptcy," Dec. Dig. (Key-No.) 116, 211. nMETCALF BROS. v. BARKER, 187 U. S. 165, 23 Sup. Ct. 67, 47 L. Ed. 122 ; Pickens v. Roy, 187 U. S. 177, 23 Sup. Ct. 78, 47 L. Ed. 128. See "Bankruptcy" Dec. Dig. (Key-No.) 156, 211. 49) THE APPOINTMENT OP A RECEIVER 125 Section 2, subd. 3, of the act, allows the courts to appoint receivers, or the marshals, upon the application of the parties in interest, in case the courts shall find it absolutely necessary for the preservation of estates, to take charge of the property of bankrupts after the filing of a petition, and until it is dismissed or the trustee is qualified. The cau- tious language of this clause shows that such a receiver is by no means a matter of course, and that the exercise of this power should be carefully guarded. 15 The receiver is intended mainly as a curator or temporary custodian of the property. The act of 1867, though it did not contain any express provision allowing the appointment of a receiver, was con- strued as authorizing their appointment in cases where they were necessary, though the courts held them to be mere receivers to hold with limited powers. 18 Nor would they be appointed unless it appeared that the probabilities of the case were in favor of the complainant. 17 Under the present act, the decisions have given them more extended powers than that of mere custodians. They may be appointed not only for the purpose of holding the property of the bankrupt, but of stopping the dissipation of the property by a grantee alleged to hold it illegally, and for that purpose may not only hold the property that they get possession of without suit, but may proceed in the courts to protect property alleged to belong to the bank- rupt. This was expressly decided as to the powers of a re- ceiver in Re Fixen, 18 and would seem to follow necessari- 16 T. S. Faulk & Co. v. Steiner, Lobman & Frank, 165 Fed. 861, 91 C. C. A. 547 ; In re Standard Cordage Co. (D. C.) 184 Fed. 156. See "Bankruptcy," Dec. Dig. (Key-No.) 114. IB Lansing v. Manton, Fed. Cas. No. 8,077. See "Bankruptcy," Dec. Dig. (Key-No.) 114; Cent. Dig. 164-166. IT Wilkinson v. Dobbie, Fed. Cas. No. 17,670. See "Bankruptcy," Dec. Dig. (Key-No.) 114; Cent. Dig. 164-166. is (D. C.) 96 Fed. 748. This decision is questioned in Guaranty Title & Trust Co. v. Pearlman (D. C.) 144 Fed. 550, but tbe better 126 DISTRICT COURT BANKRUPTCY (Ch. 6 ly from the language of the court in Bryan v. Bernheimer. 19 The latter case was a proceeding by the marshal, but the principle is the same. The decisions conflict on the question whether a receiver can sue outside the district of his appointment. Some hold that he cannot, but may apply for temporary relief in an- other district till the appointment of a trustee. 20 But the better view is that a bankrupt proceeding is not bounded by district or state lines, and that its receiver is a statutory receiver and may sue anywhere. 21 He may take property, though in charge of a state in- solvent court. 22 And if the property is of such a nature as to render it necessary, he may sell it. 23 THE DEFENSE 50. The defense is set up by the bankrupt or by a creditor by means of a demurrer, plea, or answer; the questions generally raised being that of the juris- diction, or whether there can be an adjudication in bankruptcy; the creditors being allowed to make only such defenses as could be set up by the bank- rupt. opinion is in accord with it. See In re Dempster, 172 Fed. 353, 97 C. C. A. 51. See "Bankruptcy," Dec. Dig. (Key-No.) 114, 115; Cent. Dig. 164-166. i 181 U. S. 188, 21 Sup. Ct. 557, 45 L. Ed. 814. See "Bankruptcy," Dec. Dig. (Key-No.) 114, 115; Cent. Dig. 164-166. 20 In re Schrom (D. C.) 97 Fed. 760; In re Dunseath & Son Co. (D. C.) 168 Fed. 973. See "Bankruptcy," Dec. Dig. (Key-No.) 115; Cent. Dig. 165. 21 In re Dempster, 172 Fed. 353, 97 C. C. A. 51. See "Bankrupt- cy," Dec. Dig. (Key-No.) 115; Cent. Dig. ^65. 22 in re John A. Etheridge Furniture Co. (D. C.) 92 Fed. 329. See "Bankruptcy," Dec. Dig. (Key-No.) 115; Cent. Dig. 165. 23 i n re Becker (D. C.) 98 Fed. 407; In re Desrochers (D. C.) 183 Fed. 991. See "Bankruptcy," Dec. Dig. (Key-No.) 115; Cent. Dig. 165. 50) THE DEFENSE 127 Section 18b of the bankrupt act provides that the bank- rupt or any creditor may appear and plead to the petition within ten days after the return day, or within such further time as the court may allow. The amendment of Febru- ary 5, 1903, has reduced this ten days to five days. It is apparent, therefore, that the defense may be made either by the bankrupt himself or by a creditor; and for this rea- son, as stated above, a subpoena must issue so as to fix the time within which the creditor can appear. 24 The fact, however, that a creditor may also defend, does not give him the right to raise any issue that the bankrupt could not raise. On the original petition the validity of transfers, as far as the creditor is concerned, is not in- volved. When he defends he simply stands in the shoes of the bankrupt, and sets up such defense as the bankrupt alone could set up. 25 Assuming that the jurisdictional facts are all made out, practically the only issue that the bankrupt or a creditor can raise on the petition itself is whether an act of bankruptcy has been committed. This is clear from the language of many clauses in the act. For instance, section 18d speaks of the bankrupt or any of his creditors appearing within the time limited and controvert- ing "the facts alleged in the petition." Section 59b pro- vides that the prayer of the petition is "to have him ad- judged a bankrupt," and section 59f adds a provision that creditors other than the original petitioners may "be "heard in opposition to the prayer of the petition"; thus showing that, when creditors appear, they can only resist the ad- judication in bankruptcy, and cannot raise questions as to the validity of conveyances to them, or other questions personal to them. There are other means provided for raising these questions. 2* In re L. Humbert Co. (D. C.) 100 Fed. 439. See "Bankruptcy" Dec. Dig. (Key-No.) 86, 87; Cent. Dig. 130-155. 25 Sinsheimer v. Simonson, 107 Fed. 898, 47 C. C. A. 51; Louis- ville Trust Co. v. Comingor, 184 U. S. 18, 22 Sup. Ct. 293, 46 L. Ed. 413. See "Bankruptcy," Dec. Dig. (Key-No.) 89. 128 DISTRICT COURT BANKRUPTCY (Ch. 6 As to the form of the defense, the provision that the bankrupt or any creditor may appear and plead is not to be construed literally, as meaning that the form of the de- fense must be a plea. Section 19a provides that a person against whom an involuntary petition has been filed shall be entitled to a jury trial on filing a written application therefor "at or before the time within which an answer may be filed." Section 59f provides that creditors other than original petitioners may at any time enter 'their ap- pearance and join in the petition, "or file an answer and be heard in opposition to the prayer of the petition." It is clear, therefore, that the word "plead" is merely equivalent to "making defense," and that the form of defense may be according to the ordinary rules of pleading; that is, by plea, demurrer, or answer. Form 6 of those prescribed by the Supreme Court 2 830. er Devine v. Los Angeles, 202 U. S. 313, 26 Sup. Ct 652, 50 L. Ed. 1046; McGilvra v. Ross, 215 U. S. 70, 30 Sup. Ct 27, 54 L. Ed. 95. Also, as analogous, Donnelly v. U. S., 228 IT. S. 243, 33 Sup. Ct. 449, 57 L. Ed. . See "Courts," Dec. Dig. (Key-No.) 288; Cent. Dig. 830. es in re Lennon, 166 U. S. 548, 17 Sup. Ct 658, 41 L. Ed. 1110. See "Courts," Dec. Dig. (Key-No.) 289; Cent. Dig. 830. 69 Judicial Code, 24, par. 16; CONTINENTAL NAT. BANK v. 99) ORDINARY CIVIL JURISDICTION 241 Under this, the mere fact that the suit is against a na- tional bank does not give jurisdiction. But if the question raised in the suit is such as would constitute a federal ques- tion independent of the fact that the defendant is a national bank, the court would have jurisdiction. For instance, the question whether a national bank which had acquired stock in a state bank, and was sued as a stockholder, had a right to acquire such stock, or whether it was acquired in the regular course of business, constitutes a federal question, and gives jurisdiction. 70 A suit for damages against directors of a national bank for making a false report, though in form an action of de- ceit, raises a federal question. 71 On the other hand, where a stockholder of a national bank had sold his stock, and the purchaser had failed to transfer it, in consequence of which the vendor remained as a stockholder on the books of the bank, and was sued after the failure of the bank for his stock assessment, a suit by him against the purchaser for failing to transfer did not involve a federal question. 72 A suit based on the refusal of election officers to receive a vote at a congressional election is essentially a suit aris- ing under the federal Constitution, of which the court has jurisdiction, though it may subsequently decide that there is no merit in the contention. 78 BUFORD, 191 U. S. 119, 24 Sup? Ct. 54, 48 L. Ed. 119 ; ante, p. 82. See "Courts" Dec. Dig. (Key-No.) 294; Cent. Dig. 836; "Banks and Banking," Cent. Dig. 1056, 1059. 70 California Nat Bank v. Kennedy, 167 U. S. 362, 17 Sup. Ct. 831, 42 L. Ed. 198. See "Courts," Dec. Dig. (Key-No.) 299; Cent. Dig. 841. 71 Thomag v. Taylor, 224 U. S. 73, 32 Sup. Ct. 403, 56 L. Ed. 673. See "Courts," Dec. Dig. (Key-No.) 299; Cent. Dig. 841. 72 Le Sassier v. Kennedy, 123 U. S. 521, 8 Sup. Ct 244, 31 L. Ed. 262 ; In re Jones, 164 U. S. 691, 17 Sup. Ct 222, 41 L. Ed. 601. See "Courts," Dec. Dig. (Key-No.) 294; Cent. Dig. 836; "Banks and Banking," Cent. Dig. 1056-1059. 73 Swafford v. Templeton, 185 U. S. 487, 22 Sup. Ct 783, 46 L. Ed. 1005. Compare this case with the case of Excelsior Wooden Pipe Co. HUGHES FED.PB.(2o ED.) 16 242 DISTRICT COUKT ORDINARY CONTBOVER8IE8 (Ch. 11 It is not enough, however, in order to confer a federal question, that some act of Congress or title claimed under the United States may be incidentally involved. The case must turn necessarily upon the construction of a federal question. This is illustrated by controversies arising out of patents and trade-marks. If the jurisdiction is invoked on the ground of an infringement, then a federal question is involved ; but if, on the other hand, the controversy is sim- ply over contracts arising out of grants of the right to sell patents, and turns upon the construction of these contracts between the parties, a federal question is not involved, though the subject of litigation is a patent, or trade-mark. 74 Nor is a federal question involved simply from the fact that suit is brought against a receiver appointed by a fed- eral court. The basis of the suit itself must involve a fed- eral question, and the mere fact that a federal receiver is sued is not sufficient to give jurisdiction. 75 Nor is it sufficient to constitute a federal question that v. Pacific Bridge Co., 185 U. S. 282, 22 Sup. Ct. 681, 46 L. Ed. 910, in order to ascertain how far the jurisdiction of the court is de- feated by the defendant's pleading. The true distinction appears to be that if the claim of the plaintiff is bona fide and appears clearly upon his bill, and that claim is not formally admitted by the plead- ings, the court has jurisdiction, though the facts in the case, on the plaintiff's own proof, should show that his claim is not well founded. But if the claim as set up by him is formally admitted on the plead- ings, then there is no controversy between the parties involving a federal question, and the court may consider this as showing a want of federal jurisdiction. See "Courts," Dec. Dig. (Key-No.) 281, 282; Cent. Dig. 820-825. 74 Pratt v. Paris Gaslight & Coke Co., 168 U. S. 255, 18 Sup. Ct. 62, 42 L. Ed. 458; Excelsior Wooden Pipe Co. v. Pacific Bridge Co., 185 U. S. 282, 22 Sup. Ct. 681, 46 L. Ed. 910; Baglin v. Cusenier Co., 221 U. S. 580, 31 Sup. Ct 669, 55 L. Ed. 863 ; Henry v. A. B. Dick Co., 224 U. S. 1, 32 Sup. Ct. 364, 56 L. Ed. 645 ; The Fair v. Kohler Die & Specialty Co., 228 U. S. 22, 33 Sup. Ct. 410, 57 L. Ed. ; post, p. 490. See "Courts," Dec. Dig. (Key-No.) 290-292; Cent. Dig. 832-834. 76 Bausman v. Dixon, 173 U. S. 113, 19 Sup. Ct. 316, 43 L. Ed. 633; Gableman v. Peoria, D. & E. R. Co., 179 U. S. 335, 21 Sup. Ct 171, 45 L. Ed. 220. See "Uourts," Dec. Dig. (Key-No.) 295; Cent. Dig. 837. 100) ORDINARY CIVIL JURISDICTION 243 the title in litigation traces back to the United States, where no question of the effect of the federal link in the title is involved, but merely conflicting questions of title between diverse claimants. 78 SAME CONTROVERSIES BETWEEN CITIZENS OF DIFFERENT STATES NATURAL PERSONS 100. In suits involving over $3,000, the jurisdiction extends to cases involving controversies between citizens of different states. The word "citizen," in this connection, is not used in the political sense of a voter, but in the sense of being a permanently domiciled member or subject of a state. Citizen- ship of the state and of the United States must both concur. In considering what is meant in the Constitution and statutes by "citizens of different states," the question will first be discussed as to natural persons. The word "citizen" is not used in this connection in its political sense, or in reference to any political rights, like the right to vote. It is used in the sense of its original def- inition ; that is, as an integral part of the membership of a state, or a subject of a state. It means those who have a permanent domicile in a state, and not those who may merely have a temporary residence there. The distinction between "domicile" and "residence" is well known in the law. The meaning of "domicile" is explained in Mitchell 76 St Paul & N. P. Ry. Co. v. St. Paul, M. & M. R. Co., 68 Fed. 2, 15 C. C. A. 167; Id., 18 Sup. Ct. 946, 42 L. Ed. 1212; Northern Pac. R. Co. v. Soderberg, 188 TJ. S. 526, 23 Sup. Ct. 365, 47 L. Ed. 575; Shulthls v. McDougal, 225 U. S. 561, 32 Sup. Ct. 704, 56 L. Ed. 1205. See "Courts," Dec. Dig. (Key-No.) 285; Cent. Dig. 827, 828. 244 DISTRICT COURT ORDINARY CONTROVERSIES (Ch. 11 v. U. S. 77 It is defined as a "residence at a particular place, accompanied with positive or presumptive proof of an in- tention to remain there for an unlimited time ; and, when once acquired, it is presumed to continue until positive proof of change." In order to give jurisdiction to the fed- eral courts on this ground, two things must concur : The parties must be citizens of a state, in the sense of being reg- ularly domiciled in that state, and not having a mere tem- porary residence there; and they must also be citizens of the United States, within the requirements of the four- teenth amendment, which provides that all persons born or naturalized in the United States are citizens of the United States and of the state where they reside. A party may be a citizen of the United States, and yet the federal courts would not have jurisdiction on the ground of citizenship. For instance, a person having his permanent abode in the District of Columbia is a citizen of the United States, but the federal courts have no jurisdiction on the ground of citizenship where he is on one side of a controversy, as the District of Columbia is not a state. 78 So a party regularly domiciled in a territory is a citizen of the United States, but he is not a citizen of a state, and therefore cannot give jurisdiction to the federal courts. 79 On the other hand, a party may be regularly domiciled in a state, and a citizen of a state in the political sense of the word, and yet the federal courts would not have jurisdic- tion unless he is also a citizen of the United States. For 77 21 Wall. 350, 22 L. Ed. 584; Ex parte Petterson (D. C.) 166 Fed. 536; Pickering v. Winch, 48 Or. 500, 87 Pac. 763, 9 L. R. A. (N. S.) 1159; Anderson v. Blakesly (Iowa) 136 N. W. 210. See "Courts," Dec. Dig. (Key-No.) 307; Cent. Dig. 850-854; "Domicile," Dec. Dig. (Key-No.) 2; Cent. Dig. 2. 78 Barney v. Baltimore, 6 Wall. 280, 18 L. Ed. 825; Hooe v. Jamie- son, 166 U. S. 395, 17 Sup. Ct. 596, 41 L. Ed. 1049. See "Courts," Dec. Dig. (Key-No.) 307; Cent. Dig. 850-854. 79 Watson v. Bonfils, 116 Fed. 157, 53 C. C. A. 535; Clark v. South- era Pac. Co. (C. C.) 175 Fed. 122. See "Courts," Dec. Dig. (Key-No.) 307; Cent. Dig. 850-854. 100) ORDINARY CIVIL JURISDICTION 245 instance, an alien who has never been naturalized cannot be a proper party to a suit in the federal courts based on the ground of diverse citizenship, though the state may have given an unnaturalized alien the right to vote. 80 That citizenship of the United States alone is not suffi- cient to confer jurisdiction is well settled. 81 Mere residence is not sufficient to confer jurisdiction, but domicile is required. 82 The fact that citizenship, in this connection, does not mean political citizenship or the right to vote, is illustrated by the fact that women who have no right to vote can still sue in the federal courts on the ground of diverse citizen- ship; and the same rule applies to infants. 83 In considering the question of domicile, the ordinary rules of law in reference to the domicile of different parties apply. For instance, the domicile of a child is that of the parent. 84 An interesting case on this point is Lamar v. Micou, 86 which holds that the infant's domicile was that of the fa- so Poppenhauser v. India-Rubber Comb Co. (C. C.) 14 Fed. 707; Lanz v. Randall, Fed. Cas. No. 8,080. See "Courts," Dec. Dig. (Key- No.) 307; Cent. Dig. 850-854. si Nichols v. Nichols (C. C.) 92 Fed. 1; Pope v. Williams, 193 U. S. 621, 24 Sup. Ct. 573, 48 L. Ed. 814. See "Courts," Dec. Dig. (Key- No.) 307; Cent. Dig. 850-854. sz Wolfe v. Hartford Life & Annuity Ins. Co., 148 U. S. 389, 13 Sup. Ct. 602, 37 L. Ed. 493 ; Neel v. Pennsylvania Co., 157 U. S. 153, 15 Sup. Ct. 589, 39 L. Ed. 654; Collins v. Ashland (D. C.) 112 Fed. 175 ; Harding v. Standard Oil Co. (C. C.) 182 Fed. 421. See "Courts," Dec. Dig. (Key-No.) SOT; Cent. Dig. 850-854. ss Minor v. Happersett, 21 Wall. 162, 169, 22 L. Ed. 627; Blumen- thal v. Craig, 81 Fed. 320, 26 C. C. A. 427. See "Courts," Dec. Dig. (Key-No.) 307; Cent. Dig. 850-854. s* Dresser v. Edison Illuminating Co. (C. C.) 49 Fed. 257; Hess v. Kimble, 79 N. J. Eq. 230, 81 Atl. 363. See "Courts," Dec. Dig. (Key- No.) 307; Cent. Dig. 850-854; "Domicile," Dec. Dig. (Key-No.) 5; Cent. Dig. 24-35. 85 112 U. S. 452, 5 Sup. Ct. 221, 28 L. Ed. 751. See "Courts," Dec. Dig. (Key-No.) 307; Cent. Dig. 850-854; "Domicile," Dec. Dig. (Key-No.) 5; Cent. Dig. 24-85. 246 DISTRICT. COURT ORDINARY CONTROVERSIES (Ch. 11 ther or the widowed mother, but did not change, when the mother remarried, to the domicile of the second husband, nor to that of a guardian at a mere temporary residence of the child. So, too, the domicile of the wife is that of the husband where they are not living apart under a legal sep- aration. 86 Domicile may often be proved by declarations, provided the court is satisfied that the declaration was not made for the purpose of manufacturing evidence on the subject. 87 A domicile may be actually acquired, and, though acquir- ed for the purpose of enabling the party to sue in the fed- eral courts, it is still his domicile, and entitles him, under such circumstances, to sue; but, if the change of domicile is merely colorable, the court will dismiss any suit of its own motion. 88 A state cannot sue in the federal courts on the ground of diverse citizenship, as a state cannot, in the nature of things, be a citizen of a state. 89 In considering the parties for the purpose of jurisdiction, the court looks at the character of the party on the record who is the actual dominus litis, not at mere nominal parties or parties beneficially interested. For instance, where a bond is made payable to a state or marshal, any suit brought by the party interested in the breach of the bond as relator is governed by his citizenship, and not by the se Nichols v. Nichols (C. 0.) 92 Fed. 1. See "Courts," Dec. Dig. (Key-No.) SOT; Cent. Dig. 850-854; "Domicile," Dec. Dig. (Key- No.) 5; Cent. Dig. 24-35. 87 Doyle v. Clark, Fed. Cas. No. 4,053. See "Courts," Dec. Dig. (Key-No.) 323; Cent. Dig. 885; "Domicile," Dec. Dig. (Key-No.) 8-10; Cent. Dig. 36-39. ss Morris v. Gilmer, 129 U. S. 315, 9 Sup. Ct. 289, 32 L. Ed. 690; Barney v. Baltimore, 6 Wall. 280, 18 L. Ed. 825. See "Courts," Dec. Dig. (Key-No.) 307; Cent. Dig. 850-854. so Postal Tel. Cable Co. v. Alabama, 155 U. S. 482, 15 Sup. Ct 192, 39 L. Ed. 231. See "Courts," Dec. Dig. (Key-No.) 307; Cent. Dig. 850-854; "Removal of Causes," Dec. Dig. (Key-No.) 26, 40; Cent. Dig. 60-63, 81. 100) ORDINARY CIVIL JURISDICTION 247 citizenship of the formal payee, who has no actual inter- est in the suit. 90 For the same reason, where a suit is brought by a party in a representative character, his citizenship, and not that of the parties for whose benefit the suit is really brought, is the test. An illustration of this is a suit by a trustee, in which case his citizenship, and not that of the beneficiaries, governs. 91 So, in a suit by an administrator, his citizenship, and not that of the beneficiaries in the estate, is the test. 92 The same principle applies to the suit of a guardian for the benefit of his ward, where the guardian can sue in his own name. 93 On the other hand, a suit by a minor through his next friend is regulated by the citizenship of the minor, as a next friend is strictly hardly a party to the suit at all. 94 If the relation of the parties is such at the institution of suit as to give the court jurisdiction, the substitution' of new parties, or the change of residence of the old parties, will not divest a jurisdiction once acquired. 95 so Indiana ex rel. Stanton v. Glover, 155 U. S. 513, 15 Sup. Ct 186, 39 L. Ed. 243 ; Howard v. U. S., 184 U. S. 676, 22 Sup. Ct. 543, 546, 46 L. Ed. 754; Hollenbach v. Elmore & H. Contracting Co. (C. C.) 174 Fed. 845. Compare United States Fidelity & Guaranty Co. v. U. S., 204 U. S. 349, 27 Sup. Ct. 381, 51 L. Ed. 516. See "Courts," Dec. Dig. (Key-No.) 30.9; Cent. Dig. .857. i Blumenthal v. Craig, 81 Fed. 320, 26 C. C. A. 427. See "Courts," Dec. Dig. (Key-No.) 311; Cent. Dig. 858. 92 Cincinnati, H. & D. R. Co. v. Thiebaud, 114 Fed. 918, 52 C. C. A. 538. See "Courts," Dec. Dig. (Key-No.) 311; Cent. Dig. 858. 93 Mexican Cent. R. Co. v. Eckman, 187 U. S. 429, 23 Sup. Ct. 211, 47 L. Ed. 245. See "Courts," Dec. Dig. (Key-No.) 311; Cent. Dig. 858. 94 Blumenthal v. Craig, 81 Fed. 320. 26 C. C. A. 427. See "Courts," Dec. Dig. (Key-No.) 311; Cent. Dig. 858. 9BHardenbergh v. Ray, 151 U. S. 112, 14 Sup. Ct. 305, 38 L. Ed. 93 ; Collins v. Ashland (D. C.) 112 Fed. 175. See "Courts," Dec. Dig. (Key-No.) 317, 319; Cent. Dig. 864. 248 DISTRICT COURT ORIGINAL JURISDICTION (Ch. 12 CHAPTER XII THE DISTRICT COURT (Continued) ORIGINAL JURISDICTION (Continued) 101. Same Same Corporations. 102. Same Same Plurality of Litigants. 103. Same Controversies between Citizens of a State and Foreign States, Citizens, or Subjects. 104. Same Venue of Actions. 105. Same Same Rule when Litigants are Numerous. 106. Same Same Suits against Defendants of Different Districts in Same State, and Suits in Rein. SAME SAME CORPORATIONS 101. For purposes of federal jurisdiction a corporation is considered a citizen of the state which gives it its charter. Frequently corporations hold legislative power from more than one state. In such case a mere license or enabling act does not make it a corporation of the second state also. 1. How Far a Citizen of the State Creating It At the time of the adoption of the Constitution the part played by corporations in the business of the country was slight. It is a matter of doubt whether the framers of the Constitution had them in mind at all. Consequently, when the question was first raised whether a corporation was a citizen in the sense in which that term was used in reference to the jurisdiction of the federal courts, it was de- cided that a corporation could only be treated as a citizen, for the purposes of jurisdiction, in case all the corporators composing the corporation were citizens of the state of 101) ORDINARY CIVIL JURISDICTION 249 its creation, and this was a matter of averment and proof in each case. 1 This remained the doctrine for a great many years, but the increasing importance of corporations rendered it nec- essary for the court to consider the question more thor- oughly, and consequently, in Louisville, C. & C. R. Co. v. Letson, 2 the Supreme Court based the jurisdiction of the federal courts over corporations on the theory that the cor- poration was itself an inhabitant of the state of its crea- tion, contracting in its own name, and having a legal ex- istence independent of its membership. It has been seen that the word "citizen" is not used in its political sense, but means a person with a permanent domicile, or a subject. Hence, when this last test was laid down by the court, it came pretty close to the doctrine which had been applied in the case of individuals. But not content with this, the court did not take long to go a step further to the final conclusion that after all, when a corporation is chartered by a state, there is a conclusive presumption that its corporators are all citizens of the same state; that, properly speaking, the individual stockholders are not parties at all, but that the corporation stands in the position of their representative or trustee; and hence an averment that a corporation is incorporated under the laws of a certain state shows that it has a domicile in or is a subject or citizen of that state. 3 The test laid down in this latter case is that, in order 1 Bank of TJ. S. v. Deveaux, 5 Cranch, 61, 3 L. Ed. 38; Commercial & R. Bank of Vicksburg v. Slocomb, 14 Pet. 60, 10 L. Ed. 354. See "Corporations," Dec. Dig. (Key-No.) 52; Cent. Dig. 140-150; "Courts," Dec. Dig. (Key-No.) 274, 293, 294, 314; Cent. Dig. 814, 835, 836, 860. 2 2 How 497, 11 L. Ed. 353. See "Courts," Dec. Dig. (Key-No.) 314; Cent. Dig. 860. s ST. LOUIS & S. F. R. CO. v. JAMES, 161 U. S. 545, 16 Sup. Ct. 621, 40 L. Ed. 802. Compare Doctor v. Harrington, 196 U. S. 579, 25 Sup. Ct. 355, 49 L. Ed. 606. See "Courts," Dec. Dig. (Key-No.) 274, 314; Cent. Dig. 814, 860. 250 DISTRICT COURT ORIGINAL JURISDICTION (Ch. 12 to make a corporation a citizen in the spirit and letter of the Constitution, it must be created out of natural persons whose citizenship of the state creating it could be imputed to the corporation itself. Hence it follows, from the ground on which these decisions have rested, that the al- legation that a corporation is a citizen of a state is mean- ingless, but the allegation should be that it is a corpora- tion organized under the laws of that state.* The principle of this line of decisions applies as well to foreign corporations as to those organized under the laws of a state. They, too, are conclusively presumed to be composed of citizens or subjects of the foreign govern- ment creating them. 5 Nor does a state requirement that they become domi- ciled in a state in order to obtain a license to do business affect their status for purposes of jurisdiction. 6 ' Under section 24, par. 16, of the Judicial Code, a national bank, for purposes of jurisdiction, is treated as a corpora- tion of the state in which it is located. 7 A corporation organized under the laws of a territory becomes a corporation of a state when the territory be- comes a state. 8 But these principles apply only to corporations. They do not apply to unincorporated associations, nor to joint- stock companies which are not so organized as to amount * Baltimore & O. R. Co. v. McLaughlin, 73 Fed. 519, 19 O. C. A. 551 ; Thomas v. Ohio State University, 195 U. S. 207, 25 Sup. Ct 24, 49 L. Ed. 160. See "Courts," Dec. Dig. (Key-No.) 814; Cent. Dig. 860. o National S. S. Co. v. Tugman, 106 U. S. 118, 1 Sup. Ct 58, 27 L. Ed. 87. See "Courts," Dec. Dig. (Key-No.) 314; Cent. Dig. 860. St. Louis & S. F. R. Co. v. Cross (C. C.) 171 Fed. 480. See "Courts," Dec. Dig. (Key-No.) 814; Cent. Dig. 860. t CONTINENTAL NAT. BANK OF MEMPHIS v. BUFORD, 191 U. S. 119, 24 Sup. Ct 54, 48 L. Ed. 119. See "Courts," Dec. Dig. (Key-No.) 294, 814; Cent. Dig. 886, 860. s Shulthis v. McDougal, 225 U. S. 561, 32 Sup. Ct. 704, 56 L. Ed. 1205. See "Courts," Deo. Dig. (Key-No.) 814, S82; Cent. Dig. 860. 101) ORDINARY CIVIL JURISDICTION 251 to corporations. 9 Nor do they apply to partnerships or limited partnership associations so long as they are not imbued with the character of corporations. 10 Status of Corporations under Legislation of More than One State This is one of the most difficult questions in federal ju- risprudence. Its difficulty arises from the fact that wheth- er the corporation is a corporation of one state or the oth- er, or of both states granting them privileges, is a question of legislative intent, dependent upon the statute to be passed upon in each case. The mere grant to a corporation already organized un- der the laws of one state of a privilege or license by anoth- er state does not constitute it a corporation of the second state. Though the legislation of the second state goes so far as to require the corporation to file its charter in some office of the second state and agree to be considered a domestic corporation of that state, it still remains a cor- poration of the first state, and the legislation of the second state is not construed as amounting to incorporation. 11 So, too, where the second state recites the charter grant- ed by the first state, and goes on to give the same powers and impose the same duties, that is construed as a mere license, and not as creating a new corporation. 12 Chapman v. Barney, 129 U. S. 677, 9 Sup. CL 426, 32 L. Ed. 800 ; Roundtree v. Adams Express Co., 165 Fed. 152, 91 C. C. A. 186 ; Weir v. Rountree, 216 U. S. 607, 30 Sup. Ct. 418, 54 L. Ed, 635 ; Irving v. Joint District (C. C.) 180 Fed. 896 (a labor union). See "Courts," Dec. Dig. (Key-No.) S15; Cent. Dig. 861. 10 Great Southern Fire Proof Hotel Co. v. Jones, 177 U. S. 449, 20 Sup. Ct. 690, 44 L. Ed. 842 ; H. L. Bruett v. Austin Drainage Ex. o. (C. C.) 174 Fed. 668 (a partnership). See "Courts," Dec. Dig. (Key-No.) 815; Cent. Dig. 861. 11 ST. LOUIS & S. F. R. CO. v. JAMES, 161 U. S. 545, 16 Sup. Ct. 621, 40 L. Ed. 802 ; Missouri Pac. R. Co. v. Castle, 224 U. S. 541, 32 Sup. Ct. 606, 56 L. Ed. 875. See "Courts," Dec. Dig. (Key-No.) 314; Cent. Dig. 860. 12 Baltimore & O. R. Co. v. Harris, 12 Wall. 65, 20 L. Ed. 354; Baltimore & O. R. Co. v. Koontz, 104 U. S. 5, 26 L. Ed. 643 ; Atlantic 252 DISTRICT COURT ORIGINAL JURISDICTION (Ch. 12 In order for the legislation of the second state to con- stitute a new corporation of that state, the language used must go so far as to imply actual creation, not a mere recognition of a previous creation. 13 On the other hand, when the intent of the second state to create a new corporation is clear, the effect is, in con- templation of law, that there are two corporations. There is, first, the corporation of the original state, which owes its existence to that state, and cannot be regenerated by another state; and there is, second, the new corporation of the second state, owing its existence and allegiance to the second state. These two corporations may in name be one, may have the same stockholders, own the same prop- erty, and even be operated as a unit, but they still retain their character as distinctive and separate corporations. 1 * The character of legislation which will constitute an additional corporation is illustrated by Memphis & C. R. Co. v. Alabama. 15 In this case a railroad had already been chartered in Tennessee, but by an act of the Legislature of Alabama a corporation under the same name was au- thorized to take subscriptions to capital stock in Alabama, required to have a place for the stockholders to meet in Alabama, and to do various other things consistent only with the idea of its being an Alabama corporation. When it was sued in Alabama on a tax question arising under the laws of Alabama, the Supreme Court held that the intent of the Legislature of Alabama to make a separate corpora- Coast Line R. Co. v. Dunning, 166 Fed. 850, 94 C. C. A. 128. See "Courts," Dec. Dig. (Key-No.) 314; Cent. Dig. 860. is Louisville, N. A. & C. R. Co. v. Louisville Trust Co., 174 TJ. S. 552, 19 Sup. Ct 817, 43 L. Ed. 1081. See "Courts," Dec. Dig. (Key- No.) 314; Cent. Dig. 860. 14 Ohio & M. R. Co. v. Wheeler, 1 Black, 286, 17 L. Ed. 130. See "Courts," Dec. Dig. (Key-No.) 314; Cent. Dig. 860. is 107 TJ. S. 581, 2 Sup. Ct. 432, 27 L. Ed. 518. See "Corporations," Dec. Dig. (Key-No.) 52; Cent. Dig. 140-150; "Courts," Dec. Dig. (Key-No.) 314; Cent. Dig. 860; "Removal of Causes," Dec. Dig. (Key-No.) 27; Cent. Dig. 64-68. 101) ORDINARY CIVIL JURISDICTION 253 tion was clear, and that as to such a procedure it must necessarily be considered a corporation of Alabama, and could not remove the case into the federal courts on the ground of its being a nonresident. Where there is double legislation by two states, though the legislation of the second state may amount to incorpo- ration, the original corporation organized by the first state still remains. 18 Difficult questions under this branch of jurisdiction arise when corporations of different states are consolidated. In such case each corporation, as a rule, retains its original citizenship, and, when sued, the corporation is supposed to be a corporation of the state where it was sued, and hence could not be sued by a citizen of that state. 17 But when a new corporation is organized, and the old corpora- tions, under a consolidation agreement, convey their prop- erties to the new corporation and wind up, then the new corporation is treated as a citizen of the state which or- ganizes it. 18 When a corporation acting under the laws of two states brings a suit, the question as to its citizenship depends on the question which of the original corporations is actually suing; for if, in contemplation of law, there are still two separate corporations, and the corporation first organized remains a corporation of the original state and loses no rights by going into another state, then, clearly, in such case, it may be the original corporation which is suing, IB Louisville, N. A. & C. R. Co. v. Trust Co., 174 U. S. 552, 19 Sup. Ct. 817, 43 L. Ed. 1081. See "Courts," Dec. Dig. (Key-No.) 31 4; Cent. Dig. 860; "Removal of Causes," Dec. Dig. (Key-No.) 27; Cent. Dig. 64-68. 17 Baldwin v. Railroad Co. (C. C.) 86 Fed. 167; Smith v. New York, N. H. & H. Railroad Co. (C. C.) 96 Fed. 504. See "Courts," Dec. Dig. (Key-No.) 314; Cent. Dig. 860; "Removal of Causes" Dec. Dig. (Key-No.) 27; Cent. Dig. 64-68. is Westheider v. Railroad Co. (C. C.) 115 Fed. 840. See "Courts," Dec. Dig. (Key-No.) 314; Cent. Dig. 860; "Removal of Causes" Dec. Dig. (Key-No.) 27; Cent. Dig. 254 DISTRICT COURT ORIGINAL JURISDICTION (Ch. 12 and not the corporation of the second state. This doctrine is illustrated by comparing the two cases of Ohio & M. R. Co. v. Wheeler 19 and Nashua & L. R. Corp. v. Boston & L. R. Corp. 20 In the first a corporation describing itself as created by the laws of the states of Indiana and Ohio, and having its principal place of business in Ohio, and a citizen of Ohio, sued a citizen of Indiana in the Indiana federal court. The Supreme Court held, on this allegation of the pleadings, that it was not a single corporation un- der the joint laws of Ohio and Indiana, but that there were, in contemplation of law, two separate corporations, one conclusively presumed to be composed of citizens of the state of Ohio, and the other conclusively presumed to be composed of citizens of the state of Indiana. Hence it was the same as if a citizen of Ohio and a citizen of Indiana sued a citizen of Indiana in the federal courts, and thus, as citizens of Indiana were on two different sides of the controversy, it was not a case of which the court had juris- diction. On the other hand, in the second case, the Nash- ua Corporation, alleging itself to be a corporation of the state of New Hampshire, sued a corporation of the state of Massachusetts. It appeared from an examination of the legislation of the two states that a corporation had been chartered by the state of New Hampshire composed of seven corporators, and subsequently a corporation of the same name by the state of Massachusetts composed of three of these same corporators, and that by subsequent legislation the stockholders and property of the two cor- porations were blended into one for all practical operating purposes. The Supreme Court held, however, that it had to consider that it was a New Hampshire corporation i 1 Black, 286, 17 L. Ed. 130. See "Courts," Dec. Dig. (Key-No.) S14; Cent. Dig. 860; "Removal of Causes," Dec. Dig. (Key-No.) 27; Cent. 'Dig. 64-68. 20 136 U. S. 356, 10 Sup. Ct. 1004, 34 L. Ed. 363. See "Courts," Dec. Dig. (Key-No.) 314; Cent. Dig. 860; "Removal of Causes," Dec. Dig. (Key-No.) 27; Cent. Dig. 64-68. 102) ORDINARY CIVIL JURISDICTION 255 which was suing, and not the Massachusetts corporation, and hence that the federal court for the district of Massa- chusetts had jurisdiction. SAME SAME PLURALITY OF LITIGANTS 102. In the case of more than one plaintiff or defendant, the federal jurisdiction cannot be acquired by di- verse citizenship when any one or more of the parties on either side is a citizen of the same state as any one or more on the other side; but only a party can defeat the jurisdiction who is an indis- pensable party to the suit, and the omission of parties not indispensable is authorized by statute and court rule in aid of the federal jurisdiction. Jurisdiction as Affected by the Number of Litigants Heretofore the discussion has been on the theory that there is but one party on each side of the litigation. A more numerous class is where there is more than one liti- gant on each side. In this case it is a doctrine of the fed- eral courts that the terms "plaintiff" and "defendant" are used collectively, and mean that all the plaintiffs must be capable of suing all the defendants ; that is, that all the par- ties on each side of the litigation must be of different citi- zenship. Hence a citizen of New York and a citizen of Massachusetts cannot sue a citizen of Massachusetts in the federal courts, as that would not be a controversy be- tween citizens of different states. 21 The jurisdiction, however, depends only upon those who are indispensable as parties, and in order to obviate, as 21 Peninsular Iron Co. v. Stone, 121 TJ. S. 631, 7 Sup. Ct 1010, 30 L. Ed. 1030 ; FLORIDA CENT. & P. R. CO. v. BELL, 176 U. S. 321, 20 Sup. Ct 399, 44 L. Ed. 486 ; Key West Cigar Mfg. Ass'n v. Rosen- bloom (C. C.) 171 Fed. 296. See "Courts," Dec. Dig. (Key-No.) 308, 314; Cent. Dig. 855, 856, 860. 256 DISTRICT COURT ORIGINAL JURISDICTION (Ch. 12 far as possible, the inconvenience of having the jurisdic- tion defeated, section 50 of the Judicial Code reads as fol- lows: "When there are several defendants in any suit at law or in equity, and one or more of them are neither inhabi- tants of nor found within the district in which the suit is brought, and do not voluntarily appear, the court may en- tertain jurisdiction, and proceed to the trial and adjudica- tion of the suit between the parties who are properly before it; but the judgment or decree rendered therein shall not conclude or prejudice other parties not regularly served with process nor voluntarily appearing to answer; and nonjoinder of parties who are not inhabitants of nor found within the district, as aforesaid, shall not constitute mat- ter of abatement or objection to the suit." This authorizes the omission of parties only on the ground of their absence from the jurisdiction and the in- ability to reach them with process, but not where they are necessary parties and in reach of process. For instance, in Allnut v. Lancaster, 22 there were 114 defendants, all in reach of the court's process, and it was held that in such case it was necessary to make them par- ties. This statute applies both to common law and eq- uity, and authorizes the omission even of those who would, under ordinary rules of practice, be considered as necessary parties, provided the decree, when rendered, does not so change the state of affairs as to injuriously affect the in- terests of the absent party. Hence, in Clearwater v. Mere- dith, 23 it was held that where there were four guarantors in a contract, one of whom was out of the jurisdiction, the other three could be sued and the absent one could be omit- 22 (C. C.) 76 Fed. 131. See, also, Shearson v. Littleton (C. C.) 105 Fed. 533; Jackson v. Jackson, 175 Fed. 710, 99 C. C. A. 286. See "Courts," Dec. Dig. (Key-No.) 308-310; Cent. Dig. 855-857. 23 21 How. 489, 16 L. Ed. 201. See "Courts," Dec. Dig. (Key-No.) 308-310; Cent. Dig. 855-857. 102) ORDINARY CIVIL JURISDICTION 257 ted, as in such case the judgment would not bind him, and he would still be free to defend just as if no suit had ever been brought against the others. So, in Inbusch v. Farwell, 24 a suit against the administrator of one part- ner and two sureties on a bond signed by them, and also by two other partners, was sustained, the other partner being inaccessible. But where the omitted parties are what may be termed indispensable parties, being so neces- sary that a decree without their presence would prejudice their rights and leave the case in a shape contrary to eq- uity and good conscience, the statute does not apply, and the jurisdiction of the court would not attach. 26 In addition to the above statute, the thirty-ninth equity rule provides as follows: "In all cases where it shall appear to the court that persons, who might otherwise be deemed proper parties to the suit, cannot be made parties by reason of their being out of the jurisdiction of the court, or incapable otherwise of being made parties, or because their joinder would oust the jurisdiction of the court as to the parties before the court, the court may in its discretion proceed in the cause without making such persons parties; and in such cases the decree shall be without prejudice to the rights of the absent parties." This rule, however, applies only to equity cases. It is broader than the statute above quoted, because it applies not only to a defect of parties, due to their being out of reach of process, but also to parties within the reach of process, whose joinder would oust the jurisdiction of the court. Under this rule and the above statute, parties in the federal courts need not be so numerous as in the or- 24 1 Black, 566, 17 L. Ed. 188. See "Courts," Dec. Dig. (Key-No.) 308-310; Cent. Dig. 855-857. 2 s Barney v. Baltimore, 6 Wall. 280, 18 L. Ed. 825; Ober v. Gal- lagher, 93 U. S. 199, 23 L. Ed. 829; Waterman v. Canal-Louisiana Bank & T. Co., 215 U. S. 33, 30 Sup. Ct. 10, 54 L. Ed. 80. See "Courts," Dec. Dig. (Key-Xo.) 310; Cent. Dig. 857. HUGHES FED.PB.(2o ED.) 17 258 DISTRICT COURT ORIGINAL JURISDICTION (Ch. 12 dinary chancery courts, and many who would ordinarily be made parties are not necessarily so made in the federal courts. The leading case on this subject is Shields v. Bar- row. 26 This case classifies parties in the federal courts in- to formal, necessary, and indispensable, holding that only the latter class are the ones whose absence would com- pletely defeat the jurisdiction. Parties who are ordinarily considered necessary parties would not defeat the jurisdic- tion of the federal court, if the court can proceed without prejudicing their rights or leaving the record at final de- cree in a shape contrary to equity and good conscience. Substantially the same rule is laid down in Williams v. Bankhead, 27 where the court says: "The general rule as to parties in chancery is, that all ought to be made parties who are interested in the controversy, in order that there may be an end of litigation. But there are qualifications of this rule, arising out of public policy and the necessities of particular cases. The true distinction appears to be as follows: First. Where a person will be directly affect- ed by a decree, he is an indispensable party, unless the par- ties are too numerous to be brought before the court, when the case is subject to a special rule. Secondly. Where a person is interested in the controversy, but will not be directly affected by a decree made in his absence, he is not an indispensable party, but he should be made a party if possible, and the court will not proceed to a decree with- out him if he can be reached. Thirdly. Where he is not interested in the controversy between the immediate liti- gants, but has an interest in the subject-matter which may se 17 How. 130, 15 L. Ed. 158; Federal Mining & Smelting Co. v. Bunker Hill & S. M. Co. (C. C.) 187 Fed. 474. See "Courts," Dec. Dig. (Key-No.) 808-310; Cent. Dig. 855-857. 2719 Wall. 563, 22 L. Ed. 184. See, also, Minnesota v. Securities Co., 184 U. S. 199, 22 Sup. Ct. 308, 46 L. Ed. 499 ; Kuchler v. Greene (C. C.) 163 Fed. 91 ; South Penn Oil Co. v. Miller, 175 Fed. 729, 99 C. C. A. 305. See "Courts," Dec. Dig. (Key-No.) 308-310; Cent. Dig. 855-857. 102) ORDINARY CIVIL JURISDICTION 259 be conveniently settled in the suit and thereby prevent further litigation, he may be a party, or not, at the option of the complainant." An illustration of parties who are merely formal in the sense of this statute and rule is given by Walden v. Skin- ner. 28 In this 'case the executors of a trustee, who were joined for the mere purpose of conveying a title, but against whom no personal relief was prayed, were held to be merely formal. So, too, in Einstein v. Georgia Southern & F. R. Co., 29 where two of three trustees sued as plaintiffs, and another refused to join and was therefore made defendant, he was held to be only a formal party. An ordinary trustee, un- less the instrument creating him is very restricted in con- ferring powers upon him, represents the beneficiaries, and therefore the latter are not necessary parties. 30 When a trustee is made a party defendant and no re- lief is prayed against him, he would not defeat the juris- diction; but where there are charges against him, and therefore relief is prayed, he is a necessary party, and would defeat the jurisdiction if it places two citizens of the same state on opposite sides. 31 There are, however, many cases where parties have been held indispensable and their joinder defeats the jurisdiction on that account. In Williams v. Bankhead 32 the claimant of a fund was held 28 101 U. S. 577, 25 L. Ed. 963. See "Courts," Dec. Dig. (Key-No.) 309; Cent. Dig. 857. 2 (C. C.) 120 Fed. 1008. See Atchison, T. & S. F. R. Co. v. Phillips, 176 Fed. 663, 100 C. C. A. 215. See "Courts," Dec. Dig. (Key-No.) 808-310; Cent. Dig. 855-857. so Kerrison v. Stewart, 93 U. S. 155, 23 L. Ed. 843; Dodge v. Tul- leys, 144 U. S. 451, 12 Sup. Ct. 728, 36 L. Ed. 501 ; Allen-West Com- mission Co. v. Brashear (C. C.) 176 Fed. 119. See "Courts," Dec. Dig. (Key-No.) 308-310; Cent. Dig. 855-857. si Post v. Buckley (C. C.) 119 Fed. 249. See "Courts," Dec. Dig. (Kci/-No.) 308-310; Cent. Dig. 855-857. 32 19 Wall. 563, 22 L. Ed. 184. See "Courts," Dec. Dig. (Key-No.) 308-310; Cent. Dig. 855-857. 260 DISTRICT COURT ORIGINAL JURISDICTION (Ch. 12 to be a necessary party. So in Massachusetts & S. Const. Co. v. Cane Creek Tp., which was a suit to recover bonds in the possession of a third party, raising certain questions as to the contract under which they were placed with that party, it was held that the custodian of the bonds, though only a stakeholder, was an indispensable party. 33 In many cases a jurisdiction may be given by dismissing the suit as to parties who would otherwise defeat it. 34 In deciding upon the jurisdiction, the court does not con- sider itself bound by the arrangement which the pleader has chosen to give the parties on the record. It will ar- range them according to their actual interest, and then decide whether the jurisdiction can be sustained. 35 SAME CONTROVERSIES BETWEEN CITIZENS OF A STATE AND FOREIGN STATES, CITIZENS, OR SUBJECTS 103. In civil suits involving over $3,000, the federal juris- diction extends to controversies between citizens of a state and foreign states, citizens, or subjects. 155 U. S. 283, 15 Sup. Ct. 91, 39 L. Ed. 152; New Orleans Wa- terworks Co. v. New Orleans, 164 U. S. 471, 17 Sup. Ct. 161, 41 L. Ed. 518. See "Courts," Dec. Dig. (Key-No.) 308-310; Cent. Dig. 55-857. 3 * Horn v. Lockhart, 17 Wall. 570, 21 L. Ed. 657; Mason v. Dul- lagharn, 82 Fed. 689, 27 C. C. A. 296; Hopkins v. Stave Co., 83 Fed. 912, 28 C. C. A. 99; Delaware, L. & W. R. Co. v. Frank (C. C.) 110 Fed. 689 ; Ladew v. Tennessee Copper Co. (C. C.) 175 Fed. 245 ; Id., 218 U. S. 357, 31 Sup. Ct. 81, 54 L. Ed. 1069; Id., 218 U. S. 369. 31 Sup. Ct. 84, 54 L. Ed. 1073. See "Courts," Dec. Dig. (Key-No.) 318; Cent. Dig. 863. 35 First Nat. Bank v. Trust Co., 80 Fed. 569, 26 C. C. A. 1; John- son v. Ford (C. C.) 109 Fed. 501; Joseph Dry Goods Co. v. Hecht, 120 Fed. 760, 57 C. C. A. 64 ; Kelly v. Mississippi Valley Coaling Co. (C. C.) 175 Fed. 482 ; Helm v. Zarecor, 222 U. S. 32. 32 Sup. Ct 10, 56 L. Ed. 77. See "Courts," Dec. Dig. (Key-No.) 317. 103) ORDINARY CIVIL JURISDICTION 261 A foreign state may sue in the courts of another coun- try, and it would be a breach of international courtesy not to allow it so to do. 36 An illustration of a suit by a foreign state is given in the case of Republic of Colorrtbia v. Cauca Co., 37 which was a suit by the republic of Colombia to set aside an award of arbitrators. Citizens or subjects of foreign states are usually desig- nated in the case as aliens, although that is not the lan- guage of the statute. The court has jurisdiction of a suit under this clause, although the alien sued or suing resides in the United States, 38 and though the plaintiff is not a citizen of the state where suit is brought. 39 For the purposes of jurisdiction under this clause, a foreigner remains an alien until he is completely natural- ized. He does not become a citizen by taking out his pre- liminary naturalization papers, though the state laws give such a party the right to vote. 40 On the other hand, a citizen of the United States does not become an alien, by a mere change of residence from the United States. It must appear that the change is per- manent, and that an obligation to the new sovereign has been distinctly assumed. 41 ae The Sapphire v. Napoleon III, 11 Wall. 164, 20 L. Ed. 127. See "Courts," Dec. Dig. (Key-No.) 321; Cent. Dig. 847-849. ST (C. C.) 106 Fed. 337; Republic of Columbia v. Cauca Co., 113 Fed. 1020, 51 C. C. A. 604; Id., 190 U. S. 524, 23 Sup. Ct. 704, 47 L. Ed. 1159. See "Courts," Dec. Dig. (Key-No.) 321; Cent. Dig. 841-849. ss Breedlove v. Nicolet, 7 Pet 413, 8 L. Ed. 731. See "Courts," Dec. Dig. (Key-No.) 821; Cent. Dig. 847-849. ss BARROW S. S. CO. v. KANE, 170 U. S. 100, 18 Sup. Ct. 526, 42 L. Ed. 964. See "Courts," Dec. Dig. (Key-No.) 321; Cent. Dig. 847-849. 40 City of Minneapolis v. Reum, 56 Fed. 576, 6 C. C. A. 31; Frick v. Lewis, 195 Fed. 693, 697, 115 C. C. A. 493. See "Courts," Dec. Dig. (Key-No.) 321; Cent. Dig. 847-849. 41 Bishop v. Averill (C. C.) 76 Fed. 386; Winans v. Attorney Gen- eral [1904] App. Gas. 287. See "Courts," Dec. Dig. (Key-No.) 321; Cent. Dig. 847-849. 262 DISTRICT COURT ORIGINAL JURISDICTION (Ch. 12 If, however, a female citizen of the United States marries a Canadian and goes with him to his permanent home, her national character is determined by her husband's resi- dence, and she becomes a subject of Great Britain. 42 On the other hand, independent of statute, a female citizen of the United States, by marrying a resident unnaturalized alien, does not thereby become an alien herself, they con- tinuing to reside in the United States. 43 A citizen of Cuba after the Spanish War is a citizen of a foreign state, notwithstanding the close relations be- tween that country and the United States. She is Cuba Libre. 44 In view of the constant practice of nations to appoint citizens of other nations as consuls, there is no presump- tion that a person so appointed by a foreign country is an alien. 45 This clause of the statute gives jurisdiction simply be- tween citizens of this country and foreign states, citizens, or subjects. Hence it does not confer jurisdiction in con- troversies between citizens of two foreign states, 46 nor in 42 Jenns v. Landes (C. C.) 85 Fed. 801. See "Citizens," Dec. Dig. (Key-No.) 8; Cent. Dig. 7; "Courts," Dec. Dig. (Key-No.) 321; Cent. Dig. 847-849. 43Comitis v. Parkerson (C. C.) 56 Fed. 556, 22 L. R. A. 148; Wal- lenburg v. Missouri P. R. Co. (C. C.) 159 Fed. 217. These cases arose before the expatriation act of March 2, 1907 (34 Stat. 1228, c. 2534, [U. S. Comp. St. Supp. 1911, p. 490]). This act was entitled "An act in reference to the expatriation of citizens and their protection abroad," and its third section provided that any American woman who marries a foreigner should take the nationality of her husband, but could resume her American citizenship at the termination of the marital relation. See In re Martorana (D. C.) 159 Fed. 1010, 171 Fed. 397. See "Citizens," Dec. Dig. (Key-No.) 8; Cent. Dig. 7; "Courts," Dec. Dig. (Key-No.) 321; Cent. Dig. 847-849. 44 Betancourt v. Association (C. C.) 101 Fed. 305. See "Courts," Dec. Dig. (Key-No.) 321; Cent. Dig. 847-849. 45 Bors v. Preston, 111 U. S. 252, 4 Sup. Ct. 407, 28 L. Ed. 419. See "Courts," Dec. Dig. (Key-No.) SO 1; Cent. Dig. 842, 885. 46 Pooley v. Luco (C. C.) 72 Fed. 561; Gage v. Riverside Trust Co. (C. C.) 156 Fed. 1002. See "Courts," Dec. Dig. (Key-No.) 321; Cent. Dig. 847-849. 103) ORDINARY CIVIL JURISDICTION 263 controversies between citizens of foreign states and citi- zens of the District of Columbia, as the latter is not a state. 47 Pleadings must Show the Jurisdiction The courts hold that an averment must clearly show that an alien is a citizen of a foreign power. In Stuart v. City of Easton 48 the Supreme Court held that an aver- ment that a party on whom jurisdiction depended was a citizen of London, England, was not sufficient for the pur- pose of jurisdiction. The opinion is very short, and it is not entirely clear wherein the defect consists. Probably it was that the averment simply showed citizenship of the city of London, but did not show necessarily that the par- ty was a citizen or subject of Great Britain. Soon after this decision Judge Taft, speaking for the circuit court of appeals, held, in Rondot v. Rogers Tp., 49 that the proper averment should allege not only that the party was a subject, but also expressly that he was an alien, although, as above stated, the word "alien" is not used in the stat- ute at all. But in the later case of Hennessy v. Richard- son Drug Co. 60 the Supreme Court held that it was not necessary to expressly aver the alienage, and that an aver- ment that the complainants were "all of Cognac in France, 47 Land Co. of New Mexico v. Elkins (C. O.) 20 Fed. 545. See "Courts," Dec. Dig. (Key-No.) 821; Cent. Dig. 847-849. 48 156 U. S. 46, 15 Sup. Ct. 268, 39 L. Ed. 341. See "Courts," Dec. Dig. (Key-No.) 322; Cent. Dig. 876-881. 49 79 Fed. 676, 25 C. C. A. 145. But in Mahoning Valley R. Co. v. O'Hara, 196 Fed. 945, 116 C. C. A. 495, this same court on the au- thority of the decisions referred to in the next note held an allega- tion that the plaintiff was "a citizen of Ireland" sufficient. See "Courts," Dec. Dig. (Key-No.) 322; Cent. Dig. 876-881. so 189 U. S. 25, 23 Sup. Ct. 532, 47 L. Ed. 697. In C. H. Nichols Lumber Co. v. Franson, 203 U. S. 278, 27 Sup. Ct. 102, 51 L. Ed. 181, the allegation "a citizen of Sweden" was held sufficient In fact, the word "citizen" in reference to an alien is practically the equivalent of "subject." See "Courts," Dec. Dig. (Key-No.) 322; Cent. Dig. 876-881. 264 DISTRICT COURT ORIGINAL JURISDICTION (Ch. 12 and citizens of the republic of France," was sufficient for the purposes of jurisdiction. SAME VENUE OF ACTIONS 104. Civil suits in the federal courts are to be brought in the judicial district whereof the defendant is an inhabitant, except that, where the jurisdiction is founded only on the fact that the action is be- tween citizens of different states, suit may be brought in the district of the residence of the plaintiff, if the defendant be found therein and served with process. This exemption from suit, however, being of the person and not of the sub- ject-matter, any defects are waived by the appear- ance of the defendant. Jurisdiction as A ffected by Place of Suit Section 51 of the Judicial Code provides: "Except as provided in the five succeeding sections, no person shall be arrested in one district for trial in an- other, in any civil action before a district court; and, ex- cept as provided in the six succeeding sections, no civil suit shall be brought in any district court against any per- son by any original process or proceeding in any other dis- trict than that whereof he is an inhabitant; but where the jurisdiction is founded only on the fact that the action is between citizens of different states, suit shall be brought only in the district of the residence of either the plaintiff or the defendant." This adopted the policy of the act of March 3, 1887, as corrected August 13, 1888. Prior thereto, the acts pro- vided that suit should not be brought "in any other dis- trict than that whereof he is an inhabitant, or in which he shall be found at the time of serving the writ." This change, by omitting the right to sue in the district where 104) ORDINARY CIVIL JURISDICTION 265 a defendant may be found, renders many of the older de- cisions obsolete. In cases arising before the Judicial Code took effect, it was held 51 that under the provisions of the Sherman anti- trust act of July 2, 1890, 52 allowing suits where the defend- ant resides or is found, suits can be brought in districts where the defendant is not an inhabitant. The language of the Judicial Code is probably to be construed in the same way, as its repealing clause does not specifically mention this act. On the other hand, a suit by resident shippers to re- strain carriers (none of whom reside in the district where suit is brought) from advancing freight rates cannot be sustained. 53 In considering this question as to the place of suit, it must first be observed that the requirement does not go to jurisdiction over the subject-matter, but merely to ju- risdiction over the person, and hence may be waived. If the controversy is between citizens of different states, or involves a federal question, or comes within any other of the provisos defining the jurisdiction over the subject- matter, the courts have jurisdiction of that subject-matter, though suit may be brought in a district where neither the plaintiff nor the defendant resides; and in such cases a general appearance is a waiver of the right to object to jurisdiction over the person. Under the ordinary rules of pleading, a special appearance and a general appearance cannot be combined, but the latter is a waiver of the for- mer; and hence a demurrer which sets up as a ground, not si Standard Oil Co. v. U. S., 221 U. S. 1, 31 Sup. Ct. 502, 55 L. Ed. 619, 34 L. R. A. (N. .S.) 834, Ann. Cas. 1912D, 734 ; Michigan Alumi- num F. Co. v. Aluminum Castings Co. (C. C.) 190 Fed. 879. See "Courts," Dec. Dig. (Key-No.) 271; Cent. Dig. 810. 52 26 Stat. 209, c. 647 (U. S. Comp. St. 1901, p. 3200). 53 Macon Grocery Co. v. Atlantic Coast Line R. Co., 215 U. S. 501, 30 Sup. Ct. 184, 54 L.~Ed. 300. See "Courts," Dec. Dig. (Key-No.) 272; Cent. Dig. 811. 266 DISTRICT COURT ORIGINAL JURISDICTION (Ch. 12 only the exemption from suit in that special district, but other grounds going to the merits, such as want of equity, is treated as a general appearance, and suit may be main- tained. 54 Any appearance, consent, or plea which amounts to a general appearance is a waiver of the question of ju- risdiction. 55 It is not a waiver of the jurisdictional privilege, or a con- sent to be sued in a certain district, for a defendant cor- poration to appoint an agent on whom process may be served, as required by state statute. Though the corpora- tion actually does business there, this does not give the right to sue it, so far as the jurisdiction depends upon the residence of the defendant. 56 As this is a personal privilege, only the party can plead it whose residence does not come within its requirements. 57 This qualification upon the right to sue must be consid- ered, first, in controversies not dependent upon diverse citizenship, and, second, in controversies where the ground of jurisdiction is diverse citizenship. s* Jones v. Andrews, 10 Wall. 327, 19 L. Ed. 935; Southern Pac. Co. v. Denton, 146 TJ. S. 202, 13 Sup. Ct. 44, 36 L. Ed. 942 ; Blueflelds S. S. Co. v. State, 184 Fed. 584, 106 C. C. A. 564 ; Campbell v. John- son, 167 Fed. 102, 92 C. C. A. 554. It is difficult to reconcile Southern Pac. Co. v. Arlington Heights Co., 191 Fed. 101, 111 C. C. A. 581, with these authorities, especially with Jones v. Andrews. See "Courts," Dec. Dig. (Key-No.) 276; Cent. Dig. 815; "Appear- ance," Cent. Dig. HJf. 55 ST. LOUIS & S. F. R. CO. v. McBRIDE, 141 TJ. S. 127, 11 Sup. Ct. 982, 35 L. Ed. 659 ; Ingersoll v. Coram, 211 U. S. 335, 29 Sup. Ct. 92, 53 L. Ed. 208; Texas Co. v. Central Fuel Co., 194 Fed. 1, 114 C. C. A. 21 ; Atchison, T. & S. F. R. Co. v. Gilliland, 193 Fed. 608, 113 C. C. A. 476. See "Courts," Dec. Dig. (Key-No.) 276; Cent. Dig. 815; "Appearance," Cent. Dig. 114. se Southern Pac. Co. v. Denton, 146 U. S. 202, 13 Sup. Ct. 44, 36 L. Ed. 942; Hagstoz v. Mutual L. I. Co. (C. C.) 179 Fed. 569. See "Courts," Dec. Dig. (Key-No.) 276; Cent. Dig. 815. 57 Central Trust Co. v. McGeorge, 151 U. S. 129, 14 Sup. Ct. 286, 38 L. Ed. 98 ; Horn v. Pere Marquette R. Co. (C. C.) 151 Fed. 626. See "Courts," Dec. Dig. (Key-No.) 276; Cent. Dig. 815. 104) ORDINARY CIVIL JURISDICTION 267 Rule When Jurisdiction Not Dependent on Diverse Citizenship In this case the residence or inhabitancy of the defend- ant alone confers jurisdiction. 58 It is plain from the lan- guage 6f the act that it was intended to refer only to the residence of citizens of the United States, and hence it does not apply to an alien defendant. If service can be ob- tained on an alien corporation, and the other requisites of jurisdiction concur, the court can take jurisdiction, though the corporation merely does business at the place where sued, and does not, as in the nature of things it cannot, reside there or become an inhabitant. 59 On the other hand, when an alien is a plaintiff, then the jurisdiction is necessarily governed by the district of the defendant American citizen or corporation. 60 As to the meaning of the term "resident or inhabitant," the Supreme Court has settled that. As there were many states which had more than one district, and it would be incongruous to say that a litigant was a citizen of a dis- trict, the two words are practically synonymous, and mean the regular home or domicile of the party in question. 61 A comparatively recent act of Congress requires surety companies to file a power of attorney in any district where as in re Keasbey & Mattison Co., 160 U. S. 221, 16 Sup. Ct. 273, 40 L. Ed. 402 ; Cound v. Atchison, T. & S. F. R. Co. (C. C.) 173 Fed. 527; Smith v. Detroit & T. S. L. R. Co. (C. C.) 175 Fed. 506. See "Courts," Dec. Dig. (Key-No.) 270; Cent. Dig. 810. 59 BARROW S. S. CO. v. KANE, 170 U. S. 100, 18 Sup. Ct. 526, 42 L. Ed. 964; Tierney v. Helvetia Swiss F. I. Co. (C. C.) 163 Fed. 82. See "Courts," Dec. Dig. (Key-No.) 270, 274; Cent. Dig. 810, 814. eo Galveston, H. & S. A. R. Co. v. Gonzales, 151 U. S. 496, 14 Sup. Ct 401, 38 L. Ed. 248. See "Courts," Dec. Dig. (Key-No.) 270, 274; Cent. Dig. 810, 814. 6i Shaw v. Mining Co., 145 U. S. 444, 12 Sup. Ct. 935, 36 L. Ed. 768 ; Galveston, H. & S. A. R. Co. v. Gonzales, 151 U. S. 496, 14 Sup. Ct 401, 38 L. Ed. 248 ; In re Keasbey & Mattison Co., 160 U. S. 221, 16 Sup. Ct 273, 40 L. Ed. 402; Freeman v. Surety Co. (C. C.) 116 Ped. 548. See "Courts," Dec. Dig. (Key-No.) 270; Cent. Dig. 810. 268 DISTRICT COURT ORIGINAL JURISDICTION (Ch. 12 they give a bond, before they can give bonds to the United States or in the United States courts. 6 ' The fifth section of this act authorized suits where the bond was given. On the same day (August 13, 1894) an act was passed for the protection of supply men in erecting public works, 63 which was amended February 24, ' 1905, 6 * by requiring suit in such case where the contract with the United States was to be performed and not elsewhere. Under section 6 of the employer's liability act 'as amend- ed April 5, 1910, suit may be brought in the district of the residence of the defendant, or in which the cause of action arose, or in which the defendant shall be doing business at the time of commencing such action. 65 When Jurisdiction Dependent on Diverse Citizenship In this case the suit may be either in the district of the residence of the plaintiff or of the defendant. It cannot, however, be in the residence of the plaintiff unless legal service can be secured on the defendant. 66 And, in the case of a corporation, legal service cannot be obtained up- on it, if it does not carry on business in a district, by mere- ly serving one of its officers who happens to be a resident there. 67 Hence, as to nonresident defendants, they can be 62 28 Stat. 279 (U. S. Comp. St. 1901, p. 2315). es 28 Stat. 278, c. 280 (U. S. Comp. St. 1901, p. 2523). e* 33 Stat. 811, c. 778 (U. S. Comp. St Supp. 1911, p. 1071); David- son Bros. Marble Co. v. U. S., 213 U. S. 10, 29 Sup. Ct. 324, 53 L. Ed. 675; U. S. v. Congress Construction Co., 222 U. S. 199, 32 Sup. Ct 44, 56 L. Ed. 163. See "Courts," Dec. Dig. (Key-No.) 269, 270; Cent. Dig. 809, 810. es Act April 22, 1908, c. 149, 35 Stat. 65, as amended by Act April 5, 1910, c. 143, 36 Stat. 291 (U. S. Comp. St. Supp. 1911, p. 1324); Newell v. Baltimore & O. R. Co. (C. C.) 181 Fed. 698. See "Courts," Dec. Dig. (Key-No.) 269, 210; Cent. Dig. 809, 810. e e Barnes v. Telegraph Co. (C. C.) 120 Fed. 550; Kibbler v. St Louis & S. F. R. Co. (C. C.) 147 Fed. 879 ; Bruner v. Kansas Moline Plow Co., 168 Fed. 218, 93 C. C. A. 504 ; Green v. Chicago B. & Q. R. Co., 205 U. S. 530, 27 Sup. Ct. 595, 51 L. Ed. 916. See "Courts," Dec. Dig. (Key-No.) 272, 273; Cent. Dig. 811, 813. 67 Conley v. Mathieson Alkali Works, 190 U. S. 406, 23 Sup. Ct. 728, 47 L. Ed. 1113 ; Cody Motors Co. v. Warren Motor Car Co. (D. 105) ORDINARY CIVIL JURISDICTION 269 sued in the district of the plaintiff; but they cannot be sued in a district where neither plaintiff nor defendant re- sides, though they carry on business there, and though a federal question or other requisite of general jurisdiction may exist; but this exemption from suit may be waived. 68 SAME SAME RULE WHEN LITIGANTS ARE NUMEROUS 105. When the plaintiffs or defendants are numerous, all the plaintiffs must be residents of the district where the suit is brought, if the jurisdiction is based upon the residence of the plaintiff; or all the defendants must be residents of the district where the suit is brought, if the right to sue is based upon the residence of the defendants; but no party not indispensable defeats the jurisdiction. Following analogies laid down in the cases regulating the general question of jurisdiction between citizens of dif- ferent states, it is settled that, when the plaintiffs or de- fendants are numerous, all the plaintiffs must be residents of the district where the suit is brought, if the jurisdiction is based upon the residence of the plaintiffs; or all the defendants must be residents of the district where the suit is brought, if the right to sue is based upon the resi- dence of the defendants. 69 Following the decisions on the same general subject of jurisdiction, this principle applies only to those who are C.) 196 Fed. 254. See "Courts," Dec. Dig. (Key-No.) 274; Cent. Dig. 1814. ss H. J. Decker, Jr., & Co. v. Southern R. Co. (C. C.) 189 Fed. 224. See "Courts," Dec. Dig. (Key-No.) 276; Cent. Dig. 815. 8 SMITH v. LYON, 133 U. S. 315, 10 Sup. Ct. 303, 33 L. Ed. 635; Freeman v. Surety Co. (C. C.) 116 Fed. 548; McAulay v. Moody (C. C.) 185 Fed. ]44. See "Courts," Dec. Dig. (Key-No.) 273; Cent. Dig. 813. 270 DISTRICT COURT ORIGINAL JURISDICTION (Ch. 12 indispensable parties; and even after suit brought, juris- diction could be sustained by dismissing as to any parties who are not indispensable and who otherwise might de- feat jurisdiction. 70 This provision as to the place where suit must be brought is used in the statute merely in reference to the or- dinary civil jurisdiction of the district courts, and hence does not apply to other special classes of jurisdiction. A libel in personam in the district court in admiralty may be maintained in a district other than the residence of the defendant, and the ancient process of the admiralty, courts may be resorted to in order to bring the defendant into court. 71 SAME SAME SUITS AGAINST DEFENDANTS OF DIFFERENT DISTRICTS IN SAME STATE, AND SUITS IN REM 106. In suits not of a local nature, when there are two or more defendants in different districts of the same state, the suit may be brought in any district in which any defendant resides, and process will run into the other districts for the purpose of reaching any defendant in the district in which he resides. Similar provision is made as among the different divisions of a district. In suits of a local nature, where the defendant resides in a different district, in the same state, from that TO Ladew v. Tennessee Copper Co. (C. C.) 179 Fed. 245 ; Id., 218 U. S. 357, 31 Sup. Ct. 81, 54 L. Ed. 1069 ; Id., 218 U. S. 369, 31 Sup. Ct. 84, 54 L. Ed. 1073. See "Courts," Dec. Dig. (Key-No.) 273; Cent. Dig. 813. 71 In re Louisville Underwriters, 134 U. S. 488, 10 "Sup. Ct. 587, 33 L. Ed. 991. So as to suits to obtain the issuance of a patent. Lewis Blind Stitch Co. v. Arbetter Felling Machine Co. (C. C.) 181 Fed. 974. See "Admiralty," Dec. Dig. (Key-No.) 32; Cent. Dig. 306- 812; "Courts" Dec. Dig. (Key-No.) 273; Cent. Dig. 813. 106) ORDINARY CIVIL JURISDICTION 271 in which the suit is brought, the plaintiff may have original and final process against him direct- ed to the marshal of the district in which he re- sides. Any suit of a local nature, at law or in equity, where the land or other subject-matter of a fixed charac- ter lies partly in one district and partly in anoth- er, within the same state, may be brought in either of such districts. In the case of suits to reach property of absent defend- ants in any district, certain proceedings in rem are provided for, enforceable by certain prescribed steps in the nature of an order of publication. These are mainly suits to enforce liens, or to re- move clouds on titles. There are also special pro- visions giving receivers extra-territorial powers and authorizing the transfer of cases from one di- vision or district to another under certain circum- stances. Section 52 of the Judicial Code provides for suits not local in their nature. It reads as follows : "When a state contains more than one district, every suit not of a local nature, in the district court thereof, against a single defendant, inhabitant of such state, must be brought in the district where he resides; but if there are two or more defendants, residing in different districts of the state, it may be brought in either district, and a du- plicate writ may be issued against the defendants, directed to the marshal of any other district in which any defend- ant resides. The clerk issuing the duplicate writ shall en- dorse thereon that it is a true copy of a writ sued out of the court of the proper district; and such original and du- plicate writs, when executed and returned into the office from which they issue, shall constitute and be proceeded on as one suit ; and upon any judgment or decree rendered 272 DISTRICT COURT ORIGINAL JURISDICTION (Ch. 12 therein, execution may be issued, directed to the marshal of any district in the same state." Section 53 makes a quite similar provision as to different divisions of the same district. As to suits of a local nature, section 54 provides as fol- lows: "In suits of a local nature, where the defendant resides in a different district, in the same state, from that in which the suit is brought, the plaintiff may have original and final process against him, directed to the marshal of the district in which he resides." As to suits of a local nature, where the property lies in more than one district, section 55 of the Judicial Code provides : "Any suit of a local nature, at law or in equity, where the land or other subject-matter of a fixed character lies partly in one district and partly in another, within the same state, may be brought in the district court of either district; and the court in which it is brought shall have ju- risdiction to hear and decide it, and to cause mesne or final process to be issued and executed, as fully as if the said subject-matter were wholly within the district for which such court is constituted." The difference between local and transitory actions is well known in the law, and out of the range of the pres- ent discussion. The courts have held that an action of trespass for injuries to land is local in its nature, and tri- able only in the district where the land lies. 72 So with a suit to cancel a mortgage. 73 72 Ellenwood v. Marietta Chair Co., 158 U. S. 105, 15 Sup. Ct. 771, 39 L. Ed. 913; Kentucky Coal Lands Co. v. Mineral Development Co. (C. C.) 191 Fed. 899. See "Courts," Dec. Dig. (Key-No.) 269; Cent. Dig. 809. 73 Co well v. City Water-Supply Co. (C. C.) 96 Fed. 769, reversed 121 Fed. 53, 57 C. C. A. 393, but not on this point. See "Courts," Dec. Dig. (Key-No.) 269; Cent. Dig. 809. 106) ORDINARY CIVIL JURISDICTION 273 Suits to Reach Property of Absent Defendants in the District Section 57 of the Judicial Code provides as follows : "When in any suit commenced in any district court of the United States, to enforce any legal or equitable lien .upon or claim to, or to remove any incumbrance or lien or cloud upon the title to real or personal property within the dis- trict where such suit is brought, one or more of the de- fendants therein shall not be an inhabitant of or found within the said district, or shall not voluntarily appear thereto, it shall be lawful for the court to make an order directing such absent defendant or defendants to appear, plead, answer, or demur by a day certain to be designated, which order shall be served on such absent defendant or defendants, if practicable, wherever found, and also upon the person or persons in possession or charge of said prop- erty, if any there be ; or where such personal service upon such absent defendant or defendants is not practicable, such order shall be published in such manner as the court may direct, not less than once a week for six consecutive weeks. In case such absent defendant shall not appear, plead, an- swer, or demur within the time so limited, or within some further time, to be allowed by the court, in its discretion, and upon proof of the service or publication of said order and of the performance of the directions contained in the same, it shall be lawful for the court to entertain jurisdic- tion, and proceed to the hearing and adjudication of such suit in the same manner as if such absent defendant had been served with process within the said district; but said adjudication shall, as regards said absent defendant or de- fendants without appearance, affect only the property which shall have been the subject of the suit and under the jurisdiction of the court therein, within such district; and when a part of the said real or personal property against which such proceeding shall be taken shall be within an- other district, but within the same state, such suit may be brought in either district in said state: provided, how- HUGHES FED.PB.(2D ED.) 18 274 DISTRICT COURT ORIGINAL JURISDICTION (Ch. 12 ever, .that any defendant or defendants not actually per- sonally notified as above provided may, at any time with- in one year after final judgment in any suit mentioned in this section, enter his appearance in said suit in said dis- trict court, and thereupon the said court shall make an or- der setting aside the judgment therein and permitting said defendant or defendants to plead therein on payment by him or them of such costs as the court shall deem just; and thereupon said suit shall be proceeded with to final judg- ment according to law." This act is intended, in the cases covered by it, to regu- late the suit by the location of the res; and consequently the district or residence of the plaintiff or defendant has nothing to do with it, though the controversy must be one of which the court has jurisdiction from diversity of citi- zenship or otherwise. Suit, however, may be brought where the property is, although neither of the parties re- sides there. 74 The statute covers many different kinds of suits. Suits to Enforce Any Legal or Equitable Lien upon or Claim to Real or Personal Property in the District A suit to quiet title conies under this provision. 75 Also a suit for partition of land is treated as a claim to or suit to settle title to real estate. 76 So, also, a suit to reach a fund in the hands of a trustee in the jurisdiction of the court. 77 Suits to foreclose mortgages clearly come under the provision. 78 A suit to enforce a lien of a judgment on 74 GREELEY v. LOWE, 155 U. S. 58, 15 Sup. Ct. 24, 39 L. Ed. 69; Kentucky Coal Lands Co. v. Mineral Development Co. (C. C.) 191 Fed. 899, 912 ; Texas Co. v. Central Fuel Co., 194 Fed. 1, 114 C. C. A. 21. See "Courts," Dec. Dig. (Key-No.) 269; Cent. Dig. 809. 75U. S. v. Southern Pac. Co. (C. C.) 63 Fed. 481. See "Courts," Dec. Dig. (Key-No.) 269; Cent. Dig. 809. 76 GREELEY v. LOWE, 155 U. S. 58, 15 Sup. Ct 24, 39 L. Ed. 69. See "Courts," Dec. Dig. (Key-No.) 269; Cent. Dig. 803. 77 Goodman v. Niblack, 102 U. S. 556, 26 L. Ed. 229. See "Courts." Dec. Dig. (Key-No.) 269; Cent. Dig. 809. 78 Seybert v. Shamokin & Mt. C. Electric Railroad Co. (C. C.) 110 Fed. 810. See "Courts," Dec. Dig. (Key-No.) 269; Cent. Dig. 809. 106) ORDINARY CIVIL JURISDICTION 275 property within the district is covered by the statute; 79 so, also, an action of ejectment. 80 Suits to Remove Any Incumbrance or Lien or Cloud upon the Title to Real or Personal Property A suit by a creditor of a corporation to set aside a con- veyance made by the corporation comes under this provi- sion of the act. 81 A suit to remove a cloud upon a title caused by a tax sale is covered by the act. 82 On the oth- er hand, it is inapplicable to purely personal actions, as to suits to cancel contracts where no lien or claim or title to property is involved, and suits to abate a nuisance. 83 The act is intended to give the right to enforce claims or liens existing before the institution of the suit, and hence it does not cover proceedings by foreign attachment, where the only lien arises from the institution of the suit itself. In the federal courts the proceeding by attachment is a mere incident to a personal suit against the owner, and cannot be brought unless the defendant can be served legally with process. 84 Prior to the jurisdiction acts of 1887-88, process could be served on a defendant if found 79 De Hierapolis v. Lawrence (C. C.) 99 Fed. 321; Hultberg v. Anderson (C. C.) 170 Fed. 657. See "Courts," Dec. Dig. (Key-No.) 269; Cent. Dig. 809. so Spencer v. Kansas City Stockyards Co. (C. C.) 56 Fed. 741; Elk Garden Co. v. T. W. Thayer Co. (C. C.) 179 Fed. 556. See "Courts," Dec. Dig. (Key-No.) 269; Cent. Dig. 809. si Mellen v. Moline Malleable Iron Works, 131 U. S. 352, 9 Sup. Ct. 781, 33 L. Ed. 178. See "Courts," Dec. Dig. (Keu-No.) 269; Cent. Dig. 809. 82 Dick v. Foraker, 155 U. S. 404, 15 Sup. Ct. 124, 39 L. Ed. 201. See "Courts," Dec. Dig. (Key-No.) 269; Cent. Dig. 809. ss New York Life Ins. Co. v. Bangs, 103 U. S. 435, 26 L. Ed. 580; Ladew v. Tennessee Copper Co., 218 U. S. 357, 31 Sup. Ct. 81, 54 L. Ed. 1069. But it applies where the contracts are a lien or part of a chain of title. Citizens' Savings & Trust Co. v. Illinois C. R. Co., 205 U. S. 46, 27 Sup. Ct. 425, 51 L. Ed. 703. See "Courts," Dec. Dig. (Key-No.) 269, 274; Cent. Dig. 809, 814. s* Ex parte DES MOINES & M. R. CO., 103 U. S. 794, 26 L. Ed. 461. Big Vein Coal Co. v. Read, 229 U. S. 31, 33 Sup. Ct. 694, 57 L. Ed. . See "Courts," Dec. Dig. (Key-No.) 269, 271; Cent. Dig. 809, 810. 276 DISTRICT COURT ORIGINAL JURISDICTION (Ch. 12 in a district, though he did not reside therein; under this last amendment this can no longer be done. On the other hand, even under this last amendment, suit can be brought within the district of the residence of the plaintiff, and ac- companied by an attachment, if service can be obtained on the defendant. A suit for the specific performance of a contract has also been held not to come within the act, as a decree in such cases acts in personam, and not on the land and property itself. 85 A suit to restrain the enforce- ment of a contract of sale of stock by a corporation to cer- tain other defendants as illegal does not come within the act, as there is no question of title or claim in such a case. 86 A suit by heirs against trustees under a will to recover a residue in their hands is not covered by the act. 87 Procedure under the Act It is best, even as between two defendants of different districts in the same state, to follow the language of the act and secure an order from the court directing the absent de- fendant or defendants to appear, plead, answer, or demur by a time certain to be designated, and then to serve that order on the defendants, if practicable, and upon the person in charge of the property. 88 But under sections 52, 54, and 55 of the Judicial Code the original process could be sent into another district in the same state and served. They ought, at least, to cover the case of defendants in different districts in the same state. If, however, original process cannot be served, and only the order of the court under ss Municipal Inv. Co. v. Gardiner (C. C.) 62 Fed. 954. But the act would apply if any lien or charge on the land was reserved as part of the contract Texas Co. v. Central Fuel Oil Co., 194 Fed. 1, 114 C. C. A. 21. See "Courts," Dec. Dig. (Key-No.) 269; Cent. Dig. 809. seLengel v. American Smelting & Refining Co. (C. C.) 110 Fed. 19. See "Courts," Dec. Dig. (Key-No.) 269, 272; Cent. Dig. 809-S11. ST Fayerweather v. Ritch (C. C.) 89 Fed. 385. See "Courts," Dec. Dig. (Key-No.) 269-21/2; Cent. Dig. 809-811. ss Seybert v. Shamokin & Mt. C. Electric Railroad Co. (C. C.) 110 Fed. 810. See "Courts," Dec. Dig. (Key-No.) 344; Cent. Dig. 917. 106) ORDINARY CIVIL JURISDICTION 277 this last act, such order can be sent not only into another district of the same state, but into any other part of the United States, and can be served upon the defendant, if practicable, wherever found. 89 It is therefore necessary, first, to make some effort to find the defendant, and to serve on him the order of the court requiring him to ap- pear and defend himself, and also to serve it upon the per- son in charge of the property. Only after that is done would it be allowable to resort to the substituted service of publication, and the court will probably require some proof of an attempt to locate the defendant before allow- ing the substituted service. The act carries out the theory of procedings in rem un- der constructive service, and makes it only binding as to the property itself in case there is no appearance. If there is an appearance, on the other hand, the suit becomes an ordinary suit in personam, and could be proceeded with by the plaintiff to a personal judgment. 90 An important addition to the pre-existing law is embod- ied in section 56 of the Judicial Code, which confers cer- tain extra-territorial powers on receivers of property situ- ated in more than one district of the same circuit. It will be discussed in another connection. 91 Section 58 'of the Code permits the transfer of cases by consent from one division to another of the same district; and sections 59 and 60 for the proper disposition of cases on the formation of new districts or divisions. 8Mellen v. Moline Malleable Iron Works, 131 U. S. 352, 9 Sup. Ct. 781, 33 L. Ed. 178. See "Courts," Dec. Dig. (Key-Wo.) 344; Cent. Dig. 917. o Cooper v. Reynolds, 10 Wall. 308, 19 L. Ed. 931; Pennoyer v. Neff. 95 U. S. 714, 24 L. Ed. 565. See "Courts," Dec. Dig. (Key-No.) 844; Cent. Dig. 917. 9i Post, p. 295. 278 DISTRICT COURT ORIGINAL JURISDICTION (Ch. 13 CHAPTER XIII THE DISTRICT COURT (Continued) ORIGINAL JURISDICTION (Continued) 107. Same Jurisdiction as Affected by Assignment. 108. Same Devices to Confer Jurisdiction. 109. Jurisdiction as Incident to or Derivative from Other Grounds of Jurisdiction. SAME JURISDICTION AS AFFECTED BY AS- SIGNMENT 107. The assignee of a chose in action arising out of con- tract cannot sue in the federal courts unless his assignor could have sued there, except in certain cases named in the statute. In addition to the qualification as to the right to sue in reference to residence of the plaintiff or defendant, there is a further qualification in the statute in reference to the character of the claim to be asserted. One of the clauses of section 24, par. 1, of the Judicial Code, provides: "No district court shall have cognizance of any suit (except upon foreign bills of exchange) to recover upon any promissory note or other chose in action in favor of any assignee, or of any subsequent holder if such instru- ment be payable to bearer and be not made by any cor- poration, unless such suit might have been prosecuted in such court to recover upon said note or other chose in ac- tion if no assignment had been made." The clause applies to any cause of action arising out of a contract and subsequently assigned. For instance, a suit to enforce specific performance of a contract cannot be 107) ORDINARY CIVIL JURISDICTION 279 brought by the assignee of such a cause of action unless the assignor also could have brought it. 1 So a suit to enforce the lien of a judgment growing out of a contractual right of action cannot be brought by the assignee unless the judgment creditor also could have brought it. 2 In the cases cited in the last note, the Supreme Court limits its decision to judgments based upon causes of ac- tion growing out of contracts. The principle should ap- ply also to an assignment of a judgment based on a cause of action springing out of tort. It will be seen presently that the statute does not apply to a cause of action for tort, but, when that cause of action is reduced to judgment, under ordinary principles the tort is merged in the judg- ment, and the judgment creditor then has a cause of ac- tion springing out of an implied contract. The statute applies to suits by the assignee of city war- rants not payable to bearer, and also to a purchaser of such warrants at a sale held by an administrator of the original payee under an order of the probate court. 3 It applies to notes payable to bearer, unless the maker is a corporation. A note to the maker's own order, and indorsed by the maker in blank, is a note payable to bear- er, and the holder of such a note is not an assignee in the sense of the statute; the reason being that the cause of 1 Corbin v. Black Hawk County, 105 TT. S. 659, 26 L. Ed. 1136 ; Plant Inv. Co. v. Jacksonville, T. & W. R. Co., 152 U. S. 71, 14 Sup. Ct. 483, 38 L. Ed. 358. See "Courts," Dec. Dig. (Key-No.) 312; Cent. Dig. 865-875. 2 Walker v. Powers, 104 U. S. 245, 26 L. Ed. 729 ; Mississippi Mills v. Cohn, 150 U. S. 202, 14 Sup. Ct. 75, 37 L. Ed. 1052. But the judg- ment creditor may sue if the requisites concur as to him, though judgment was obtained on an assigned cause of action on which he could not have sued. Hultberg v. Anderson (C. C.) 170 Fed. 657. See "Courts," Dec. Dig. (Key-No.) 812; Cent. Dig. 865-875. a City of New Orleans v. Benjamin, 153 U. S. 411, 14 Sup. Ct. 905, 38 L. Ed. 764; Glass v. Concordia, 176 U. S. 207, 20 Sup. Ct. 346, 44 L. Ed. 436. See "Courts," Dec. Dig. (Key-No.) 312; Cent. Dig. 865-875. 280 DISTRICT COURT ORIGINAL JURISDICTION (Ch. 13 action by him in such case is necessarily original, as the maker and payee of the note is the same.* But the statute does apply if the note is payable to any payee not the maker, and indorsed by such payee in blank, for there an additional party comes in. 5 Notes made payable to or order that is, with the payee's name left blank are payable to bearer in the sense of the statute. 6 Coupons are also notes payable to bearer in the sense of the statute, although the bonds from which they are de- tached are not, for under the principles of the law merchant a coupon is an independent obligation. 7 Under the statute, however, notes of corporations pay- able to bearer are excepted from its operations, so that the holder of such a note can sue in the federal courts in- dependently of the citizenship of the original assignor. This principle, however, applies only to corporate notes payable to bearer, and not to corporate notes payable to order and indorsed. 8 Municipal corporations come within the language of the exception, and the holder of their notes, if payable to bear- er, can sue independently of the citizenship of the assign- or. 8 4 Barling v. Bank, 50 Fed. 260, 1 C. C. A. 510. Sec "Courts," Dec. Dig. (Key-No.) 312; Cent. Dig. 865-875. s State Nat. Bank of Denison v. Eureka Springs Water Co. (C. C.) 174 Fed. 827. See "Courts," Dec. Dig. (Key-No.) 812; Cent. Dig. 865-875. e Lyon County, Iowa, v. Keene Five-Cent Sav. Bank, 100 Fed. 337, 40 C. C. A. 391. See "Courts," Dec. Dig. (Key-No.) 312; Cent. Dig. 865-875. i Independent School Dist. of Sioux City, Iowa, v. Rew, 111 Fed. 1, 49 C. C. A. 198, 55 L. R. A. 364. See "Courts," Dec. Dig. (Key-No.) 312; Cent. Dig. 3 865-875. s Thomson v. Elton (C. C.) 100 Fed. 145 ; Lake County v. Dudley, 173 U. S. 243, 19 Sup. Ct. 398, 43 L. Ed. 684. See "Courts," Dec. Dig. (Key-No.) 312; Cent. Dig. 865-875. City of New Orleans v. Quinlan, 173 U. S. 191, 19 Sup. Ct. 329, 43 L. Ed. 664. The fact that the rates are payable to the order of the city treasurer and indorsed by him as such in blank, for the 107) ORDINARY CIVIL, JURISDICTION 281 This same principle applies to an Ohio township, which under their law is a corporation. 10 Choses in Action This applies to any right of action springing out of a contract, as stated above; for instance, a suit by the as- signee of a mortgage to quiet title. 11 Under this term is included an assignment of water rents by a water company under a mortgage, with the right to collect the water rents as additional security. The as- signee of such right of action cannot sue unless the as- signor could have sued. 12 Causes of action springing out of tort, however, are not included in the choses in action mentioned by the statute, as they apply only to choses in action growing out of con- tractual rights. Hence the assignee of a cause of action springing from tort can sue in his own name independent- ly of the citizenship of the assignor. Such can be done, for instance, in the case of an action of replevin. 13 So an assignee of a right of action for trespass to real property can sue independently of the citizenship of his assignor. 14 mere purpose of giving them currency, does not affect their character as notes payable to bearer. Citizens' Savings Bank v. Newbury- port, 169 Fed. 766, 92 C. C. A. 232 ; Blair v. Chicago, 201 U. S. 400, 26 Sup. Ct. 427, 50 L. Ed. 801. See "Courts," Dec, Dig. (Key-No.) 312; Cent. Dig. 865-875. 10 Loeb v. Columbia Township Trustees, 179 U. S. 472, 21 Sup. Ct 174, 45 L. Ed. 280. See "Courts," Dec. Dig. (Key-No.) 312; Cent. Dig. 865-875. 11 Farr v. Hobe-Peters Land Co., 188 Fed. 10, 110 C. C. A. 160. See "Courts," Dec. Dig. (Key-No.) 312; Cent. Dig. 865-875. 12 City of Eau Claire v. Pay son, 107 Fed. 552, 46 C. C. A. 466; American Waterworks & Guarantee Co. v. Water Co. (C. C.) 115 Fed. 171. See "Courts," Dec. Dig. (Key-No.) 312; Cent. Dig. 865-875. is Deshler v. Dodge, 16 How. 622, 14 L. Ed. 1084; Buckingham v. Dake, 112 Fed. 258. 50 C. C. A. 492. See "Courts," Dec. Dig. (Key- No.) 312; Cent. Dig. 865-875. i* Ambler v. Eppinger, 137 U. S. 480, 11 Sup. Ct. 173, 34 L. Ed. 765; Noyes v. Crawford (C. C.) 133 Fed. 796. See "Courts," Dec. Dig. (Key-No.) 312; Cent. Dig. 865-875. 282 DISTRICT COURT ORIGINAL JURISDICTION (Ch. 13 And the same principle applies to an assigned right of action against a bank for not protesting a draft sent to it by another bank for collection. 15 M-eaning of "Assignee" The statute applies only to a cause of action existing in some one else and assigned. If the cause of action in its nature is inherent in the suitor, the form which the note evidencing the contract may have taken does not affect his right to sue. For instance, in Holmes v. Goldsmith, 16 a note was made for the accommodation of the payee, and discounted also for his accommodation, he indorsing it to the party who discounted it. In a suit by the holder of the note, it was held that the statute did not apply; that the holder could go against the payee as the party really liable, regardless of the fact that he was in form the in- dorser or payee, for the reason that, as it was accommoda- tion paper, the payee could not have sued the makers ; and therefore, as he had no right of action, there was nothing which he could assign, and hence that the holder of the note could sue, not by virtue of any assignment from him, but by virtue of an original liability of his own. So, also, where a party gave a draft on a city and the city accepted the draft, in a suit by the payee of the draft against the city as acceptor, it was held that the suit was based upon an original liability of the city to the payee, and not upon any assigned right of action. 17 Nor does the statute apply to a party claiming under the equitable doctrine of subrogation, as his right of action is an original one and not an assigned one, and this is not af- is Barney v. Globe Bank, Fed. Gas. No. 1,031. See "Courts," Dec. Dig. (Key-No.) 312; Cent. Dig. 865-875. 16147 U. S. 150, 13 Sup. Ct. 288, 37 L. Ed. 118. See "Courts," Dec. Dig. (Key-No.) 312; Cent. Dig. 865-875. 17 City of Superior v. Ripley, 138 U. S. 93, 11 Sup. Ct 288, 34 L. Ed. 914. See "Courts," Dec. Dig. (Key-No.) 312; Cent. Dig. 865- S75. 107) ORDINARY CIVIL JURISDICTION 283 fected by the fact that an assignment may have been made to evidence the party's right to subrogation. 18 Nor does the statute defeat the right of the assignee to sue in his own name where the original contract had been modified by a new contract, and the right of action proper- ly arises under the new cqntract. This is illustrated by American Colortype Co. v. Continental Colortype Co. 19 In this case employes of a corporation had agreed, during their periods of employment, that they would not di- vulge the secret processes of their employer. The em- ployer transferred these contracts to , another company, and the employes agreed to the transfer. In a suit to restrain these employes from entering the employment of a rival corporation, it was held that under this trans- action the company was asserting a right of action of its own, and not any assigned right of action from the first corporation. The statute plainly refers only to an assignee of the right of action, and does not affect the defendant's side of the litigation. Hence, where the holder of a lease assigned it and the assignee took possession, a suit by the lessor -against the assignee of the lessee, based on the lease, was held not covered by the statute. 20 Nor does the statute. apply to a party suing on a forth- coming bond in an attachment proceeding by virtue of a state statute which required the sheriff to take such a 'bond, such bond being for the benefit of parties injured by the attachment, for the right of action in such case is in is City of New Orleans v. Gaines' Adm'r, 138 U. S. 595, 11 Sup. Ct. 428, 34 L. Ed. 1102. See "Courts," Dec. Dig. (Key-No.) 312; Cent. Dig. 865-875. i 188 U. S. 104, 23 Sup. Ct. 265, 47 L. Ed. 404. See "Courts," Dec. Dig. (Key-No.) 812; Cent. Dig. 865-815. 20 Adams v. Shirk, 105 Fed. 659, 44 C. C. A. 653. See "Courts," Dec. Dig. (Key-No.) 312; Cent. Dig. 865-875. 284 DISTRICT COURT ORIGINAL JURISDICTION (Ch. 13 the party injured, and not by virtue of any assignment from the sheriff. 21 The statute imposes this restriction on the jurisdiction simply in reference to the original assignor and the last as- signee. If jurisdiction can be obtained as far as they are concerned, the citizenship of intermediate assignees or in- dorsers does not defeat it. 22 It has' been held that the statute imposes this restriction simply so far as the citizenship of the party is concerned, not in reference to any other requisite of jurisdiction; and hence a party who held several assignments which togeth- er aggregated $2,000, and in which the assignors had the proper citizenship, was held to be entitled to sue, though the other separate assignors could not have sued, on ac- count of the fact that the separate claims held by them were less than $2,000. 23 The recent case of Waite v. City of Santa Cruz 24 contains expressions in conflict with this, though it discussed another section of the act, and really turned on the point that the transfer was not bona fide. The requisite as to the citizenship applies simply to the time of institution of suit, not to the time of assignment. If the proper citizenship exists as to the assignor and as- signee when suit is brought, the fact that it did not exist when the assignment was made does not affect the ques- tion. 25 21 Smith v. Packard, 98 Fed. 793, 39 C. C. A. 294. See "Courts," Dec. Dig. (Key-No.) 312; Cent. Dig. 865-875. 22 Emsheimer v. New Orleans, 186 U. S. 33, 22 Sup. Ct. 770, 46 L. Ed. 1042 ; Farr v. Hobe-Peters Land Co., 188 Fed. 10, 110 C. C. A. 160. See "Courts" Dec. Dig. (Key-No.) 312; Cent. Dig. 865-875. 23 Bowden v. Burnham, 59 Fed. 752, 8 C. C. A. 248; Hartford Fire Ins. Co. v. Erie R. Co. (C. C.) 172 Fed. 899. See "Courts," Dec. Dig. (Key-No.) 312, 328; Cent. Dig. 865-875. 24 184 U. S. 302, 22 Sup. Ct. 327, 46 L. Ed. 552. See "Courts," Dec. Dig. (Key-No.) 312, 328; Cent. Dig. 865-875. 25 Emsheimer v. New Orleans, 186 U. S. 33, 22 Sup. Ct. 770, 46 L. Ed. 1042; Noyes v. Crawford (C. C.) 133 Fed. 796. Where the claim is transferred back to the original owner by the assignee, the inability of the latter to sue does not affect the right of the original 108) ORDINARY CIVIL JURISDICTION 285 In instituting such a suit, it is essential that the record must show on its face the requisite citizenship both of the assignor and assignee. 26 In considering the questions arising under this act, it is important to bear in mind that, while a somewhat similar requirement has been in the federal statutes, since the orig- inal judiciary act of 1789, the language of the present act is very different. Hence decisions on old cases must be carefully compared with the acts then in force before they can be safely cited as bearing on the present act. SAME DEVICES TO CONFER JURISDICTION 108. Attempts to confer jurisdiction by pretended changes of citizenship or residence, colorable assignments, or improper arrangement of parties are forbidden, and will cause dismissal of the suit by the court ex mero motu, if discovered. The thirty-seventh section of the Judicial Code provides as follows : "If in any suit commenced in a district court, or removed from a state court to a district court of the United States, it shall appear to the satisfaction of the said district court, at any time after such suit has been brought or removed thereto, that such suit does not really and sub- stantially involve a dispute or controversy properly with- in the jurisdiction of said district court, or that the parties to said suit have been improperly or collusively made or joined, either as plaintiffs or defendants, for the purpose of creating a case cognizable or removable under this chap- ter, the said district court shall proceed no further therein, owner. Moore Bros. Glass Co. v. Drevet Mfg. Co. (C. C.) 154 Fed. 737. See "Courts," Dec. Dig. (Key-No.) 272, 312; Cent. Dig. 865-^875. 26 Parker v. Ormsby, 141 U. S. 81, 11 Sup. Ct. 912, 35 L. Ed. 654; Smith v. Fifield, 91 Fed. 561, 33 C. C. A. 681. See "Courts," Dec. Dig. (Key-No.) 322; Cent. Dig. 876-881. 286 DISTRICT COURT ORIGINAL JURISDICTION (Ch. 13 but shall dismiss the suit or remand it to the court from which it was removed, as justice may require, and shall make such order as to costs as shall be just." This statute is intended to prevent attempts to confer upon the federal courts jurisdiction not given them by law. Changes of Citizenship It has sometimes happened that a citizen changes his citizenship for the purpose of acquiring a right to sue in the federal courts. If his change is an actual, bona fide change, and he removes and takes up his domicile in a new place, with the intention of remaining there, the federal court would have jurisdiction, and the single fact that it was his intention to confer jurisdiction would not defeat it. This was held before the enactment of the above stat- ute, and has not been changed by the statute. 27 Independently of this statute, a change of the citizen- ship of the litigant, in the federal courts, after the suit has been brought, does not defeat the jurisdiction; nor does the fact that new parties come into the litigation, as juris- diction is tested by the state of facts at the institution of the suit, and not by subsequent changes. 28 Transfer of Causes of Action This statute has come before the courts more frequently on such transfers than where attempts have been made to change the residence of litigants. The principle, however, is the same. If the assignment of the cause of action is an actual, bona fide assignment, leaving no interest whatever in the assignor, then the court would have jurisdiction, sub- ject to the restriction already discussed, as to the cases in 27 Jones v. League, 18 How. 76, 15 L. Ed. 263; MORRIS v. GIL- MER. 129 U. S. 313, 9 Sup. Ct. 289, 32 L. Ed. 690. See "Courts," Dec. Dig. (Key-No.) 807; Cent. Dig. 854. 28phelps v. Oaks, 117 U. S. 236, 6 Sup. Ct. 714, 29 L. Ed. 888; Collins v. City of Ashland (D. C.) 112 Fed. 175. See "Courts," Dec. Dig. (Key-No.) 319; Cent. Dig. 864. 108) ORDINARY CIVIL, JURISDICTION 287 which an assignee can sue; and that jurisdiction would not be defeated by the motive of the parties in making or ac- cepting the assignment. But where the assignment is col- orable as for instance, where it is made simply for the purpose of collection then the principle would apply, and the court would refuse jurisdiction. The cases of Wil- liams v. Nottawa Tp., 29 Farmington v. Pillsbury, 30 and New Providence Tp. v. Halsey 31 illustrate the refusal of the court to take jurisdiction where the assignment was for collection only. But here, too, if the assignment is an ac- tual one, the motive does not affect the question. 32 On the other hand, if the transfer to one nonresident citizen is good, so that he could sue, the subsequent transfer by him to another, though with the intent of giving the other a right to sue, would not invalidate it. 33 The statute applies to a colorable assignment of a claim intended to be added to a bona fide claim in order to make up the necessary jurisdictional amount. 34 An interesting question arises in the case of organization of new corporations, as affecting this question. In Le- high Min. & Mfg. Co. v. Kelly 35 the stockholders of a Vir- 2 104 TJ. S. 209, 26 L. Ed. 719. See "Courts," Dec. Dig. (Key-No.) 312; Cent. Dig. 865-875. so 114 U. S. 138, 5 Sup. Ct. 807, 29 L. Ed. 114. See "Courts," Dec. Dig. (Key-No.) 312; Cent. Dig. 865-815. si 117 U. S. 336, 6 Sup. Ct. 764, 29 L. Ed. 904. See "Courts," Dec. Dig. (Key-No.) 312; Cent. Dig. 865-875. saLanier v. Nash, 121 U. S. 404, 7 Sup. Ct. 919, 30 L. Ed. 947; Blair v. Chicago, 201 U. S. 400, 26 Sup. Ct. 427, 50 L. Ed. 801; O'Neill v. Wolcott Mining Co.. 174 Fed. 527, 98 C. C. A. 309, 27 L. R. A. (N. S.) 200. See "Courts," Dec. Dig. (Key-No.) g 312; Cent. Dig. 865-875. 33 Ashley v. Board of Sup'rs of Presque Isle County, 83 Fed. 534, 27 C. C. A. 585. See "Courts," Dec. Dig. (Key-No.) 312; Cent. Dig. 865-875. 3* Waite v. Santa Cruz, 184 U. S. 302, 22 Sup. Ct. 327, 46 L. Ed. 552 ; Woodside v. Beekham, 216 U. S. 117, 30 Sup. Ct. 367, 54 L. Ed. 408; ante, p. 284. See "Courts," Dec. Dig. (Key-No.) 328; Cent. Dig. 890-896. 35 160 U. S. 327, 16 Sup. Ct. 307, 40 L. Ed. 444. See, also, Miller & Lux v. East Side Canal & Irrigation Co., 211 TJ. S. 293, 29 Sup. Ct 288 DISTRICT COURT ORIGINAL JURISDICTION (Ch. 13 ginia corporation organized a Pennsylvania corporation, and conveyed to it the land, which up to that time had stood in the name of the Virginia corporation. The Vir- ginia corporation, however, was still kept in existence, so that, although there was no express agreement by the Pennsylvania corporation to reconvey after the termination of the suit, it was in the power of the stockholders of the Virginia corporation to compel such reconveyance. The court held that, under such circumstances, the jurisdiction could not be sustained, as it was a mere device that came within the prohibition of the statute. On the other hand, in Irvine Co. v. Bond 3e an individual organized a corpora- tion, appointed as a board of directors parties whom he could control, and conveyed to them just enough stock to qualify them, and then conveyed to this new corporation the property as to which suit was to be brought. There was nothing to show any intent to convey the fruits of litigation back to the individual, though he controlled all but a few shares of the corporate stock, and practically controlled the board of directors. The court held in this case that the transfer gave jurisdiction to the new cor- poration to sue, despite the above Supreme Court deci- sion. Colorable Assertion of Federal Question The statute also applies where a federal question has been raised for the mere purpose of conferring jurisdic- tion on the court especially when, after the pleadings are made up, it is patent that the federal question is imma- terial, and that the case will turn upon other questions. 37 Ill, 53 L. Ed. 189; Southern Realty Inv. Co. v. Walker, 211 U. S. 603, 29 Sup. Ct. 211, 53 L. Ed. 346. See "Courts," Dec. Dig. (Key- No.) 316; Cent. Dig. 862. se (C. C.) 74 Fed. 849. See, also, Slaughter v. Mallet Land & Cattle Co., 141 Fed. 282, 72 C. C. A. 430; Acord v. Western Poeahontas Cor- poration (C. C.) 156 Fed. 989; Id., 174 Fed. 1019, 98 C. C. A. 625. See "Courts," Dec. Dig. (Key-No.) 316; Cent. Dig. 862. 37 Robinson v. Anderson, 121 TL S. 522, 7 Sup. Ct. 1011, 30 L. Ed. 1021; Excelsior Wooden Pipe Co. v. Bridge Co., 185 U. S 282, 22 108) OEDINAEY CIVIL JURISDICTION 289 Improper Joinder of Parties The statute may also be violated by an improper joinder of parties for the express purpose of conferring jurisdic- tion. 38 For instance, a suit by a stockholder against a cor- poration and the officers of the corporation, who refuse to assert a corporate right the officers being joined merely on the allegation that they had been requested to assert the right and had refused contravenes the statute. 39 In equity cases this is also covered by equity rule 27, which provides as follows: "Every bill brought by one or more stockholders in a corporation against the corpo- ration and other parties, founded on rights which may properly be asserted by the corporation, must be verified by oath, and must contain an allegation that the plaintiff was a shareholder at the time of the transaction of which he complains, or that his share had devolved on him since by operation of law, and that the suit is not a collusive one to confer on a court of the United States jurisdiction of a case of which it would not otherwise have cogni- zance. It must also set forth with particularity the efforts of the plaintiff to secure such action as he desires on the part of the managing directors or trustees, and, if neces- sary, of the shareholders, and the causes of his failure to obtain such action, or the reasons for not making such ef- fort." However, the mere fact that the trustees are in sym- pathy with the action brought by the stockholder would Sup. Ct. 681, 46 L. Ed. 910. As somewhat analogous, see Farrell v. O'Brien, 199 U. S. 89, 25 Sup. Ct 727, 50 L. Ed. 101. See "Courts," Dec. Dig. (Key-No.) 284; Cent. Dig. 818-826. ss Stephens v. Smatt (C. C.) 172 Fed. 466; Williams v. City Bank & Trust Co., 186 Fed. 419, 108 C. C. A. 341. The dropping of a plain- tiff from a bill because he would defeat the jurisdiction does not prove collusion. Mathieson v. Craven (C. C.) 164 Fed. 471. See "Courts," Dec. Dig. (Key-No.) 316; Cent. Dig. 862. 3 City of Detroit v. Dean, 106 U. S. 537, 1 Sup. Ct. 560, 27 L. Ed. 300. See "Courts," Dec. Dig. (Key-No.) 314, 316; Cent. Dig. 860, 862. HUGHES FED.PB.(2o ED.) 19 290 DISTRICT COURT ORIGINAL JURISDICTION (Ch. 13 not defeat the jurisdiction, nor bring them within this rule, if their refusal to bring suit in the name of the cor- poration was actually bona fide, and based on grounds which they thought sufficient. 40 Method of Attacking Jurisdiction under This Section Under the express language of the act, lack of jurisdic- tion need not be raised by the pleadings, though it would be proper to do so. It may be raised at any time, and the court, of it own motion, may raise it. 41 The statute, how- ever, requires that the want of jurisdiction on this ground must "appear to the satisfaction of said court." Under this clause the court discourages attempts to raise the question when it has not been raised by the pleadings, and the case has progressed far on the merits. In such case the party raising it has the burden of proof to show clearly that the statute has been violated. 42 JURISDICTION AS INCIDENT TO OR DERIVA- TIVE FROM OTHER GROUNDS OF JURISDICTION 109. The federal courts have jurisdiction in a large class of matters on the ground that the same is an incident or sequel to jurisdiction already acquired under some of the preceding heads, although they would 40 Bowdoin College v. Merritt (C. C.) 63 Fed. 213. See, also, on this general subject, Illinois Cent R. Co. v. Adams, 180 U. S. 28, 21 Sup. Ct. 251, 45 L. Ed. 410 ; City of Quincy v. Steel, 120 U. S. 241, 7 Sup. Ct. 520, 30 L. Ed. 624; Simpson v. Union Stock Yards Co. (C. C.) 110 Fed. 799. See "Courts," Dec. Dig. (Key-No.) 314, 316; Cent. Dig. 860, 862. 41 MORRIS v. GILMER, 129 U. S. 315. 9 Sup. Ct. 289, 32 L. Ed. 690; Lake County v. Dudley, 173 U. S. 243, 19 Sup. Ct. 398, 43 L. Ed. 684. See "Courts," Dec. Dig. (Key-No.) 277; Cent. Dig. 818. 42 Deputron v. Young, 134 U. S. 241, 10 Sup. Ct. 539, 33 L. Ed. 923 ; Collins v. Ashland (D. C.) 112 Fed. 175 ; Gaddie v. Mann (C. C.) 147 Fed. 955. See "Courts," Dec. Dig. (Key-No.) 324; Cent. Dig. 882-884. 109) INCIDENTAL JURISDICTION 291 not have jurisdiction of such matters as an original proposition. In other words, in these ancillary or incidental proceedings the question of citizenship or amount involved is immaterial, and the jurisdic- tion is conferred by reason of the principle that it is necessary, in order to carry out the objects of the main case and give complete relief, or to set- tle all questions necessarily dependent upon the main case. 48 A common branch of this ancillary jurisdiction is where some additional suit is brought or proceeding instituted to carry out the object of the main litigation, or to realize its fruits. For instance, in Stewart v. Dunham, 4 * which was a creditors' bill to set aside an alleged fraudulent conveyance, it was held that the admission of additional creditors as co- complainants did not defeat the jurisdiction, but that the court had power to consider their claims independent of their citizenship or the amount involved. In Gumbel v. Pitkin, 45 attachments had issued from a United States court, and property had been seized thereun- der. Then a creditor in a state court issued an attachment, and placed it in the hands of .the sheriff, and had notice of this attachment served upon the marshal, but without any seizure, as that could not have been accomplished. He 43Compton v. Jesup, 68 Fed. 263, 15 C. C. A. 397; Id., 167 TJ. S. 1, 17 Sup. Ct. 795, 42 L. Ed. 55 (the questions discussed in the Su- preme Court opinion are not in point on this special question) ; Peck v. Elliott, 79 Fed. 10, 24 C. C. A. 425, 38 L. R. A. 616 ; Hill v. Kuhl- man, 87 Fed. 498, 31 C. C. A. 87; Brun v. Mann, 151 Fed. 145, 80 C. C. 513, 12 L. R. A. (N. S.) 154; Hobbs Mfg. Co. v. Gooding (C. C.) 164 Fed. 91. See "Courts," Dec. Dig. (Key-No.) 264; Cent. Dig. 801. 44 115 U. S. 61, 5 Sup. Ct. 1163, 29 L. Ed. 329. See "Courts," Dec. Dig. (Key-No.) 264; Cent. Dig. 801. 45 124 U. S. 131, 8 Sup. Ct. 379, 31 L. Ed. 374. See, also, as to suits to enforce an attachment lien, Hatcher v. Hendrie & Bolthoff Mfg. & Supply Co., 133 Fed. 267, 68 C. C. A. 19. See "Courts," Dec. Din. (Key-No.) 264, 498; Cent. Dig. 801, 1387. 292 DISTRICT COURT ORIGINAL JURISDICTION (Ch. 13 then asked leave to intervene in the federal court case, and he was allowed to do so (though he was not a party to the first litigation), on the ground that his proceeding was a de- pendent bill ; that he was obliged to come into the federal court, because he could really go nowhere else; and that the court having jurisdiction of the main case had jurisdic- tion to pass upon all questions incidentally involved. From this it appears that a bill may be ancillary or dependent though the parties may be different from the parties in the first suit. In Root v. Woolworth * 6 a decree had been entered set- tling the title to land, and a conveyance by a commissioner of court had been made in pursuance of that decree. The defendant in the first case disregarded the decree, and still asserted title to the land. It was held that a bill would lie by an assignee of the first plaintiff to enjoin the defend- ant from such assertion of title, and that such bill was sup- plemental and ancillary. In White v. Ewing 47 the assets of a corporation were be- ing administered by a court. The receiver brought a num- ber of claims against different debtors to the corporation all in one proceeding, many of whom owed less than two thou- sand dollars. There was no demurrer as to the joinder of all of these defendants in one proceeding. It was held that the court had jurisdiction of these proceedings, as ancillary to* the main suit, whether or not it had jurisdiction of them as independent proceedings. * 150 U. S. 401, 14 Sup. Ct. 136, 37 L. Ed. 1123. But not a bill to distribute the proceeds of a sale of lands recovered from the United States among the parties entitled, in pursuance of a private agree- ment of sale among them. Stillman v. Combe, 197 U. S. 436, 25 Sup. Ct. 480, 49 L. Ed. 822. See "Courts," Dec. Dig. (Key-No.) 264; Cent. Dig. 801. 47 159 u. S. 36, 15 Sup. Ct 1018, 40 L. Ed. 67. See, as analogous, Gundy v. Armstrong, 133 Fed. 417, 66 C. C. A. 627 ; Brown v. Alle- bach (C. C.) 156 Fed. 697., See "Courts," Dec. Dig. (Key-No.) 26$; Cent. Dig. 801. 109) INCIDENTAL JURISDICTION 293 In New Orleans v. Fisher * 8 a judgment creditor of New Orleans filed a bill against the school board of that city to force an accounting of the collections of school taxes. Ju- risdiction was sustained as ancillary to the enforcement of the main judgment which had been obtained in the United States court, though the school board was not a party to the first litigation. In Phelps v. Mutual Reserve Fund Life Ass'n 49 there was a proceeding in a state court against a nonresident in- surance company, against whom judgment had been obtain- ed, which looked to the appointment of a receiver and im- pounding premiums due it. This suit was removed into the federal court, where it was held that it was ancillary to the main suit, and sustainable on that ground. Under this principle the court, having obtained jurisdic- tion in the main cause, has the right to consider any inci- dental questions arising thereunder, or brought to its at- tention by petition or otherwise, which are naturally con- nected with the main litigation, as in this way complete and speedy justice can best be done. In Blake v. Pine Mountain Iron & Coal Company 50 it was decided that, when property was in charge of a receiv- er of a federal court, it could consider the claims of all par- ties thereby affected or interested in the property, regard- less of the grounds of jurisdiction in the main case, as this was necessarily incidental to the main case. In Central Trust Co. v. Benedict 61 a trust company held 48 180 U. S. 185, 21 Sup. Ct. 347, 45 L. Ed. 485. See, also, Preston v. Calloway, 183 Fed. 19, 105 C. C. A. 311; Brown v. Morgan (C. C.) 163 Fed. 395. See "Courts," Dec. Dig. (Key-No.) 264; Gent. Dig. 801. * 112 Fed. 453, 50 C. C. A. 339, 61 L. R. A. 717; Mutual Reserve Fund Life Ass'n v. Phelps, 190 U. S. 147, 23 Sup. Ct 707, 47 L. Ed. 987. See "Courts," Dec. Dig. (Key-No.) 264; Cent. Dig. 801. so 76 Fed. 624, 22 C. C. A. 430. See "Courts," Dec. Dig. (Key-No.) 264, 501; Cent. Dig. 801, 1409. 51 78 Fed. 198, 24 C. C. A. 56. See "Courts," Dec. Dig. (Key-No.) 264; Cent. Dig. 801. 294 DISTRICT COURT ORIGINAL JURISDICTION (Ch. 13 a certain fund as custodian. In a foreclosure receivership suit it was held that the court could consider the petition of the trustee for compensation out of that fund as an in- cident to the main cause. In Central Trust Co. v. Bridges 52 a suit for foreclosure was pending. The court permitted parties who claimed mechanics' liens to come in by petition, and decided that it had the right to consider their claims as ancillary to the main litigation. In Jenks v. Brewster 53 a suit to construe and enforce a decree of a federal court was held to be ancillary to the main suit. Under this principle the court may protect property un- der its control from proceedings by adverse claimants. It has been seen from the above cases that such adverse claim- ants have the right to come into the federal court for relief. The court, however, could not only give them the right to intervene, but can compel them to do so if they attempt in any way to interfere with the property under its control, and this applies to a claim for taxes by a state against the property. 64 The court, under this principle, can take jurisdiction of a suit on an attachment bond given in the main proceeding. Independent of this principle of ancillary process, such a suit would naturally involve a federal question ; but, if this principle alone could be applied to sustain jurisdiction, then the amount involved would have to be three thousand dol- lars. If, however, such proceedings are sustainable on the 52 57 Fed. 753, 6 C. C. A. 539. See "Courts," Dec. Dig. (Key-No.) 264; Cent. Dig. 801. 53 (C. C.) 96 Fed. 625. See "Courts," Dec. Dig. (Key-No.) 264; Cent. Dig. 801. s * Memphis Sav. Bank v. Houchens, 115 Fed. 96, 52 C. C. A. 176; Ex parte Tyler, 149 U. S. 164, 13 Sup. Ct. 785, 37 L. Ed. 689. See "Courts," Dec. Dig. (Key-No.) 264, 500; Cent. Dig. 801, 1407, 1408- 109) INCIDENTAL JURISDICTION 295 ground that they are ancillary, these other requisites of ju- risdiction which apply to the main suit do not apply. 55 One of the most common and useful grounds of ancillary jurisdiction in the federal courts is the case where property which extends into more than one district, or even into more than one state, comes into the possession of the fed- eral court for purposes of administration. The best known instances of these proceedings are those of railroads whose lines run through different states or districts. A great ad- vantage of the federal courts, which has led to these suits being in a great majority of cases brought there, is this very fact that, when one federal court takes jurisdiction of such a proceeding, ancillary proceedings can be filed in every other district or state where the defendant may have property. In such case one district is treated as the main district. The orders and various steps in the proceeding are taken in that district, and the judges in the other dis- tricts do little more than merely register the decrees of the first district. It is a well-settled practice in such case that the claims against the defendant should be asserted in the main case, and not in the ancillary district. 56 This matter has been greatly facilitated in the Judicial Code by adding a section (section 56) giving to a receiver appointed and qualifying in one district jurisdiction over all property involved in the suit and situated in the circuit, on filing in the other district courts a copy of the bill on which he was appointed and the order of appointment. Prior to this provision a receiver had no extra-territorial powers. 57 55 Files v. Davis (C. C.) 118 Fed. 465. See "Courts," Dec. Dig. (Key-No.) 264; Cent. Dig. 801. SB Central Trust Co. v. East Tennessee, V. & G. R. Co. (C. C.) 30 Fed. 895; Central Trust Co. of New York v. United States Flour Milling Co. (C. C.) 112 Fed. 371. See "Courts," Dec. Dig. (Key-No.) 263; Cent. Dig. 799, 800. 57 Strout v. United Shoe Machinery Co. (D. C.) 195 Fed. 313. See "Courts," Dec. Dig. (Key-No.) 264; Cent. Dig. 801. 296 DISTRICT COURT ORIGINAL JURISDICTION (Ch. 13 It is largely a question of convenience which should be selected as the main district in the first instance. As a rule the best district to select is the district of the defendant's principal office; but where suit is first brought in another district, and the defendant company has appeared, or legal service has been obtained upon it, that may be treated as the main district. 68 Mandamus Proceedings The writ of mandamus in the federal courts is not an original proceeding at law or in equity, and therefore the courts have no jurisdiction in proceedings of that nature as original proceedings. 69 In these courts mandamus is a dependent or ancillary proceeding, and can be used only when the court has al- ready acquired jurisdiction in the main case on some well- established ground of federal jurisdiction. But its use in this way in the nature of a writ of execution, or a writ to effectuate the relief granted in the main suit, is quite com- mon. For instance, in Labette County Com'rs v. U. S., 60 where judgment had been obtained in a federal court against a township, a mandamus proceeding against the officers charged with the duty of satisfying such judgment was sustained to enforce the judgment, on the ground that it was such an ancillary proceeding, though the parties de- fendant to the writ were not parties to the original suit. 58 Farmers' Loan & Trust Co. v. Northern Pac. R. Co. (C. C.) 72 Fed. 26. In this important suit the judges of the different circuits met, conferred, and agreed upon a uniform decree. See "Courts" Dec. Dig. (Key-No.) 268; Cent. Dig. 806-812. 6 ROSENBAUM v. BAUER, 120 U. S. 450, 7 Sup. Ct. 633, 30 L. Ed. 743; State of Indiana v. Lake Erie & W. R. Co. (C. C.) 85 Fed. 1 ; In re Winn, 213 U. S. 458, 29 Sup. Ct. 515, 53 L. Ed. 873. Under the tenth section of the interstate commerce act (Act March 2, 1889, c. 382, 25 Stat. 855 [U. S. Comp. St. 1901, p. 3172]), it is authorized as an independent proceeding. Baltimore & O. R. Co. v. United States ex rel. Pitcairn Coal Co., 215 U. S. 481, 30 Sup. Ct. 164, 54 L. Ed. 292. See "Courts," Dec. Dig. (Key-No.) 265; Cent. Dig. 803. eo 112 U. S. 217, 5 Sup. Ct. 108, 28 L. Ed. 698. See "Courts," Dec. Dig. (Key-No.) 264, 265; Cent. Dig. 801, 803. 109) INCIDENTAL JURISDICTION 297 In Hair v. Burnell 61 the judgment had been obtained in a federal court against a stockholder of a corporation, and his stock had been garnished through the corporation, and sold under execution. The court sustained a mandamus by the purchaser of the stock against the corporation to com- pel its transfer on the books to the purchaser. In Board of Liquidation of City of New Orleans v. U. S. 62 a proceeding by mandamus against the board of liqui- dation to enforce a federal judgment against the city was sustained, though the board itself, as a corporation, was not a party to the original suit. Scire Facias The federal courts have jurisdiction of a scire facias not only by virtue of section 716, but also because this, too, is considered an ancillary or dependent proceeding. For in- stance, in Pullman's Palace Car Co. v. Washburn 63 such a proceeding was sustained, which was instituted to en- force liability for costs obtained on a judgment in the fed- eral court. So, too, in Lafayette County, Mo., v. Wonderly 64 a scire facias to revive a personal judgment of the federal courts was sustained as an ancillary proceeding. A common class of ancillary proceedings is those insti- tuted for the purpose of seeking protection against the orig- inal suit on grounds which could not have been raised in such suit. The best-known class of this jurisdiction is bills to enjoin judgments obtained in federal courts. The only i (C. C.) 106 Fed. 280. See "Courts," Dec. Dig. (Key-No) 264, 265; Cent. Dig. 801, 803. 62 108 Fed. 689, 47 C. C. A. 587. See "Courts," Dec. Dig. (Key-No.) 264, 265; Cent. Dig. 801, SOS. 63 (C. C.) 66 Fed. 790; Washburn v. Pullman's Palace-Car Co., 76 Fed. 1005, 21 C. C. A. 598. See "Courts," Dec. Dig. (Key-No.) 264; Cent. Dig. 801. 6*92 Fed. 313, 34 C. C. A. 360; Collin County Nat. Bank of Mc- Kinney, Tex., v. Hughes, 152 Fed. 414, 81 C. C. A. 556; Id., 155 Fed. 389, 83 C. C. A. 661 ; Egan v. Chicago G. W. R. Co. (C. C.) 163 Fed. 344. See "Courts," Dec. Dig. (Key-No.) 264; Gent. Dig. 801. 298 DISTRICT COURT ORIGINAL JURISDICTION (Ch. 13 remedy against such judgments is in the federal courts, and hence such bills are sustainable, and are considered ancil- lary. 65 The same principle applies to bills to enjoin suits which have not proceeded to judgment. The federal courts have jurisdiction of such proceedings in fact, they are the only courts which would have such jurisdiction, as state courts cannot enjoin proceedings in federal courts. For instance, in Bradshaw v. Miners' Bank ee a bill to enjoin the prosecu- tion of a creditors' suit was held ancillary to the main suit, and sustainable on that ground. In Virginia-Carolina Chemical Co. v. Home Ins. Co. 6T the insured had brought separate actions against many in- surance companies, who had separate policies which pro- vided that the companies should be liable only for their proportionate share of the loss. It was held that a bill to adjust the equities of the insurance companies as among themselves and against the insured, and to enjoin the pros- ecution of the common-law suits, would lie as ancillary to the main suit. The same principle applies to suits to set aside decrees or to construe them. 68 In Milwaukee & M. R. Co. v. Milwaukee & St. P. R. Co. 68 the court, in defining these ancillary suits, is careful to call attention to the fact that they may be ancillary in the fed- eral courts, though, under the common-law rules of proce- ss Jones v. Andrews, 10 Wall. 327, 19 L. Ed. 935; Loy v. Alston, 172 Fed. 90, 96 C. C. A. 578. See "Courts," Dec. Dig. (Key-No.) 264; Cent. Dig. 801. ee 81 Fed. 902, 26 C. C. A. 673. See "Courts," Dec. Dig. (Key-No.) 264; Cent. Dig. 801. er 113 Fed. 1, 51 C. C. A. 21. See "Courts," Dec. Dig. (Key-No.) 264; Cent. Dig. 801. es Milwaukee & M. R. Co. v. Milwaukee & St. P. R. Co., 2 Wall. 609, 17 L. Ed. 886; Pacific R. Co. v. Missouri Pac. R. Co., Ill U. S. 505, 4 Sup. Ct. 583, 28 L. Ed. 498. See "Courts," Dec. Dig. (Key-No.) 264; Cent. Dig. 801. 6 2 Wall. 609, 17 L. Ed. 886. See "Courts," Dec. Dig. (Key-No.) 264; Cent. Dig. 801. 109) INCIDENTAL JURISDICTION 299 dure, they would be treated as original. It says : "But we think that the question is not whether the proceeding is supplemental and ancillary, or is independent and original, in the sense of the rules of equity pleading, but whether it is supplemental and ancillary, or is to be considered entire- ly new and original, in the sense which this court has sanc- tioned with reference to the line which divides the juris- diction of the federal courts from that of the state courts. No one, for instance, would hesitate to say that, according to the English chancery practice, a bill to enjoin a judg- ment at law is an original bill, in the chancery sense of the word. Yet this court has decided many times that, when a bill is filed in the circuit court to enjoin a judg- ment of that court, it is not to be considered as an original bill, but as a continuation of the proceeding at law so much so that the court will proceed in the injunction suit without actual service of subpoena on the defendant, and though he be a citizen of another state, if he were a party to the judgment at law. The case before us is analogous. An unjust advantage has been obtained by one party over another by a perversion and abuse of the orders of the court, and the party injured comes now to the same court to have this abuse corrected, and to carry into effect the real intention and decree of the court, and that while the property which is the subject of contest is still within the control of the court, and subject to its order." Cross-Bills Another common procedure sustainable under this prin- ciple of ancillary jurisdiction is the case of cross-bills, which are treated as ancillary, and therefore within the jurisdic- tion of the court, when they relate to the same subject- matter as the original or main litigation. 70 TO Morgan's L. & T. R. & S. S. Co. v. Texas Cent. R. Co., 137 TJ. S. 171, 11 Sup. Ct. 61, 34 L. Ed. 625; Everett v. Independent School Dist of Rock Rapids (C. C.) 102 Fed. 529; Rickey Land & Cattle Co. v. Miller & Lux, 218 U. S. 238, 31 Sup. Ct. 11, 54 L. Ed. 1032 ; Fed- 300 DISTRICT COURT ORIGINAL JURISDICTION (Ch. 13 Under the inherent power of the court to prevent its pro- cess from being used, either fraudulently or otherwise, in such manner as to cause oppression, or to deprive any one of his rights, proceedings to settle adverse claims to prop- erty, either by asserting title or by questioning the proceed- ings in the main case, are sustainable as ancillary and de- pendent. In Krippendorf v. Hyde 71 the marshal had attached the property of a third' party as belonging to the defendant. This third party was allowed to intervene for the purpose of securing relief, and this proceeding was treated as ancil- lary, and justified by the inherent power of the court to prevent its process from being oppressively used. eral Mining & Smelting Co. v. Bunker Hill & Sullivan Mining & Con- centrating Co. (C. C.) 187 Fed. 474. See "Courts," Dec. Dig. (Key- No.) 264; Cent. Dig. 801. 7i 110 U. S. 276, 4 Sup. Ct. 27, 28 L. Ed. 145; Broadis v. Broadis (C. C.) 86 Fed. 951. See "Courts," Dec. Dig. (Key-No.) 264; Cent. Dig. 801. 110) DISTRICT COURT JURISDICTION BY REMOVAL 301 CHAPTER XIV THE DISTRICT COURT (Continued) JURISDICTION BY RE- MOVAL 110. Removals from State Courts Purpose of Such Jurisdiction. 111. Nature of the Right How Far Waivable. 112. Scope of the Jurisdiction. 113. Federal Questions. 114. Suits by the United States. REMOVALS FROM STATE COURTS PURPOSE OF SUCH JURISDICTION 110. The purpose of the federal jurisdiction by removal from state courts in certain cases, principally of diverse citizenship and federal questions, is that in the former local influence and prejudice may be avoided; and in the latter the right to have the federal courts pass upon such questions is essen- tial to the proper administration of federal laws. 1 The class of jurisdiction of the district courts by re- moval from other courts is practically as extensive as its jurisdiction over cases originally instituted there. In discussing the original jurisdiction, it has been seen that these cases may originally be brought in the federal court. Where the parties asserting a federal right or re- siding outside of a state are plaintiffs, this provision is sufficient for their protection; but it was necessary to pro- vide, also, for those cases where the nonresident was a de- fendant, or where the federal question asserted in a state court could be removed by the party against whom it was asserted. Hence the provision allowing the removal of cases from state courts into the federal courts. The con- i Federalist, No. 80. 302 DISTRICT COURT JURISDICTION BY REMOVAL (Ch. 14: stitutional right of Congress to provide not only for giv- ing the federal courts original cognizance of such cases, but also for giving the right of removal, is settled. 2 The provisions for removal of cases, however, elaborate as they are, fall far short of the constitutional powers of Congress. There are many cases involving federal ques- tions, or involving controversies between citizens of dif- ferent states, which cannot be removed into the federal courts. It is true, as will be seen hereafter, that in some of these cases a writ of error can be taken from the state court of last resort to the Supreme Court of the United States, where a federal question is involved, but this does not by any means exhaust the possibilities of such cases. Where a right arising under the Constitution and laws of the United States is asserted in a state court, and decided in favor of the right in the state court, such writs of error do not lie; and there are many questions where the con- struction of the Constitution or an act of Congress may be involved in a state court over which no federal court has any supervision. For instance, it will appear in the sequel that cases can- not be removed on the ground of a federal question being involved unless that fact appears from the plaintiff's own pleading, and cannot be taken by writ of error from a state court to the United States Supreme Court unless an ad- verse decision to the federal right is rendered. In addi- tion the right of removal is limited by the amount involved and by the character of the proceeding. 2 Tennessee v. Davis, 100 TJ. S. 257, 25 L. Ed. 648. See "Removal of Causes," Dec. Dig. (Key-No.) 2; Cent. Dip. 3. 111) NATURE OF THE BIGHT 303 NATURE OF THE RIGHT HOW FAR WAIVABLE 111. This right to remove cases is purely statutory, and, as in similar cases of original suits, cannot be con- ferred by consent, but the parties must show com- pliance with the statute and the jurisdictional facts. 3 But while consent cannot give this right, consent can waive it in special cases, and not only consent, but such acts equivalent to consent as may be consid- ered a waiver, and as would equitably estop a party from attempting to remove his case.* In West Virginia v. King 5 a defendant applied to a state court for removal of a case, and the court refused his peti- tion. He thereafter asked for an amendment of his plead- ings, which was allowed by the court, and applied to the state court of appeals for a writ of prohibition designed to give the case in the state court a certain shape to his ad- vantage. It was held that this action of his was a waiver of his right to remove. It is difficult to understand, however, how, after a pe- tition has been filed and refused, and proper exceptions tak- en, any steps in the state court looking to setting up the best defense thereto can be considered a waiver. The Su- preme Court has frequently decided that, after a petition to remove has been refused, the party may go on and resist s Kingsbury v. Kingsbury, Fed. Gas. No. 7,817 ; Byers v. McAuley, 149 U. S. 608, 13 Sup. Ct. 906, 37 L. Ed. 867. Bee "Removal of Caus- es," Dec. Dig. (Key-No.) 16; Cent. Dig. 6. * Hanover Nat. Bank v. Smith, Fed. Cas. No. 6,035 ; Case v. Olney (C. C.) 106 Fed. 433. Compare Atlanta, K. & N. Ry. Co. v. Southern R. Co., 131 Fed. 657, 66 X3. C. A. 601. See "Removal of Causes," Dec. Dig. (Key-No.) IT; Cent. Dig. 10; "Courts," Cent. Dig. 150. e (C. C.) 112 Fed. 369. See "Removal of Causes," Dec. Dig. (Key- No.) 11; Cent. Dig. 10; "Courts," Cent. Dig. 150. 304 DISTRICT COURT JURISDICTION BY REMOVAL (Ch. 14 the case in the state court, or prosecute it in the federal court and disregard the state court, or do both. 6 But it is not a waiver of the right to remove, where a nonresident defendant enters a special appearance in a state court, and asks to set aside a judgment against him for want of service, and takes a bill of exceptions to the refusal of the court to do so. 7 Nor is it a waiver of the right to remove to give an at- tachment bond in the state court in order to release prop- erty from attachment. 8 But if the petitioner invokes affirmative relief in the state court, instead of simply standing on his defense, he waives his right of removal, as he cannot invoke a juris- diction and afterwards deny it. 9 Although a defendant in a particular case can waive his right to remove, either by express consent or by acts equivalent thereto, he cannot agree generally not to re- move cases to the federal courts, nor can a state statute require such an agreement, as it would be in fraud of the jurisdiction of the courts. This question has come up fre- quently in cases where state legislatures attempt to im- pose on foreign corporations, as a condition of allowing them to do business in the state, an agreement that they would not remove their cases to the federal courts. Chesapeake & O. R. Co. v. McCabe, 213 TJ. S. 207, 29 Sup. Ct. 430, 53 L. Ed. 765 ; Avent v. Deep River Lumber Co. (C. C.) 174 Fed. 298. See "Removal of Causes," Dec. Dig. (Key-No.) 17; Cent. Dig. 10; "Courts," Cent. Dig. 150. 7 Baumgardner v. Bono Fertilizer Co. (C. C.) 58 Fed. 1. See "Re- moval of Causes," Dec. Dig. (Key-No.) 17; Cent. Dig. 10; "Courts," Cent. Dig. 150. s Purdy v. Wallace, Muller & Co. (C. C.) 81 Fed. 513. See "Re- moval of Causes," Dec. Dig. (Key-No.) 17; Cent. Dig. 10; "Courts," Cent. Dig. 150. Merchants' Heat & Light Co. v. James B. Clow & Sons, 204 U. S. 286, 27 Sup. Ct. 285, 51 L. Ed. 488 ; Texas & P. R. Co. v. Eastin & Knox, 214 U. S. 153, 29 Sup. Ct. 564, 53 L. Ed. 946. See "Removal of Causes," Dec. Dig. (Key-No.) 17; Cent. Dig. 10; "Courts," Cent. Dig. 150. 111) NATURE OF THE BIGHT 305 In Doyle v. Continental Ins. Co. 10 there are expressions in the opinion which imply that a state legislature could direct its officers to revoke a license granted to a foreign corporation if a foreign corporation removed a case, on the ground that the state, having the right to refuse the privilege of doing business entirely to a corporation, could not have its action or instructions to its own officers in- quired into. But in the later case of Barron v. Burnside " the Su- preme Court explained that the only question decided in the above case was that an injunction would not lie against a state officer to prevent him from revoking such a license, and that a provision in a state statute requiring such an agreement from a foreign corporation was absolutely void. 12 But while state statutes cannot require an agreement not to remove as a condition of doing business in the state, they may provide that a foreign corporation which re- moves a case shall forfeit any right to continue business in the state, provided that no property rights have vested, and provided further that other constitutional provisions are not violated by the statute. 13 On the same principle, a state cannot limit to its own courts the enforcement of a controversy of which Congress has given the federal courts jurisdiction. If the contro- 1094 u. S. 535, 24 L. Ed. 148. See "Removal of Causes," Dec, Dig. (Key-No.) 3; Cent. Dig. 4, 5. 11 121 U. S. 186, 7 Sup. Ct. 931, 30 L. Ed. 915. See "Removal of Causes," Dec. Dig. (Key-No.) S; Cent. Dig. 4, 5; "Corporations," Cent. Dig. 2506. 12 Southern Pac. Co. v. Denton, 146 U. S. 202, 13 Sup. Ct. 44, 36 L. Ed. 942. See "Removal of Causes," Dec. Dig. (Key-No.) 3; Cent. Dig. 4, 5. is Security Mut. Life Ins. Co. v. Prewitt, 202 U. S. 246, 26 Sup. Ct. G19, 50 L. Ed. 1013, 6 Ann. Cas. 317; Chicago, R. I. & P. R. Co. v. Swanger (C. C.) 157 Fed. 783; Herndon v. Chicago, R. I. & P. R. Co., 218 U. S. 135, 50 Sup. Ct. 633, 54 L. Ed. 970. See "Corpora- tions," Dec. Dig. (Key-No.) 651; Cent. Dig. 2506. HUGHES FED.PB.(2o ED.) 20 306 DISTRICT COURT JURISDICTION BY REMOVAL (Ch. 14 versy is such as can be constitutionally conferred on the federal courts by Congress, and if it has been so conferred, then the act of the state in giving its own courts jurisdic- tion of itself gives the federal courts jurisdiction over it. For instance, in Lincoln Co. v. Luning 14 a state statute gave the right to sue a county simply in the state courts. It was held that a nonresident could bring a suit against the county in the federal courts. In George T. Smith Middlings Purifier Co. v. McGro- arty 15 the state statute limited the procedure to its pro- bate courts. The Supreme Court, considering that the ques- tion involved was not a mere probate proceeding, but a con- troversy between citizens of different states, held that it could be originally brought in the federal courts. The above cases were both cases of original suits in the federal courts. Clark v. Bever ie was a case where a de- cedent's estate was being settled in a probate proceeding, but there was a controversy between citizens of different states as to their rights in these probate proceedings. The court held that such a controversy could be removed into the federal court. In Kirby v. Chicago & N. W. Ry. Co. 17 a condemnation proceeding in a court was held to be removable into the federal courts. i* 133 TL S. 529, 10 Sup. Ct 363, 33 L. Ed. 766. See "Courts," Dec. Dig. (Key-No.) 259; Cent. Dig. 795, 796?. 15136 U. S. 237, 10 Sup. Ct. 1017, 34 L. Ed. 346. See "Courts," Dec. Dig. (Key-No.) 259; Cent. Dig. 795, 796?. is 139 U. S. 96, 11 Sup. Ct. 468, 35 L. Ed. 88. See "Removal of Causes," Dec. Dig. (Key-No.) 3; Cent. Dig. 4, 5. IT (C. C.) 106 Fed. 551. See, also, ante, p. 222; Fishblatt v. Atlan- tic City (C. C.) 174 Fed. 196; Kaw Valley Drainage Dist. of Wyan- dotte County, Kan., v. Metropolitan Water Co., 186 Fed. 315, 108 C. C. A. 393; Madisonville Traction Co. v. St. Bernard Min. Co., 196 U. S. 239, 25 Sup. Ct. 251, 49 L. Ed. 462. See "Removal of Causes," Dec. Dig. (Key-No.) 4; Cent. Dig. 11-20. 112) SCOPE OF THE JURISDICTION 307 SCOPE OF THE JURISDICTION 112. The jurisdiction of the district courts applies, gen- erally speaking, to such cases as could be original- ly brought in the district court, as set out ante, p. 218, and may be summarized as follows: (a) Federal questions. (b) Suits by the United States, or its officers. (c) Suits or separable controversies between citizens of different states. (d) Suits between citizens and aliens. (e) Suits under grants of land from different states, (f) Suits from denial of civil rights. (g) Suits and prosecutions against revenue officers, etc, (h) Suits by aliens against civil officers of the United States. The first section of this act, as carried into section 24 of the Judicial Code, has already been quoted in full in connection with the original jurisdiction of the district court. 18 The second and third sections, as now embodied in section 28 of the Judicial Code, regulate the removal from the state courts of the vast majority of instances where removal is authorized. The first sentence of this section provides for removal, under certain circumstances, of cases arising under the Constitution and laws of the United States, or federal questions, as they are commonly termed. This provision is based upon the character of the controversy, and is independent of citizenship. The second sentence provides for the removal of cases dependent upon the kind of litigants, covering those which could have been originally instituted in the federal courts under the provisions of section 24 of the Judicial Code. They cover suits brought by the United States, contro- 18 Ante, p. 219* 308 DISTRICT COURT JURISDICTION BY REMOVAL (Ch. 14 versies between citizens of different states, and controver- sies between citizens and aliens. The third sentence provides for removing a controversy in the main case which is between citizens of different states, and which can be fully determined as to them, or controversies commonly termed separable. This provides only for controversies between citizens of different states, not for controversies between citizens and aliens. The fourth sentence provides for the removal of contro- versies where prejudice or local influence can be made to appear. This covers only cases between citizens of dif- ferent states. Section 30 of. the Judicial Code provides for controver- sies between citizens of the same state claiming under land grants of different states. Independent of this provision, such a case would have been covered by the provision of section 28 allowing the removal of any suit which could have been originally brought under the provisions of section 24 of the Code, for that section names among such cases controversies between citizens of the same state claiming lands under grants of different states, as has been previously shown ; the only difference being that in case of removal the matter in dispute must exceed $3,000 in value. 19 The next class of cases for which a removal is provided is cases against persons denied any civil right, and is cov- ered by section 31 of the Judicial Code. Under this pro- vision both civil and criminal cases can be removed. The next provision as to removal is the case of suits and prosecutions against revenue officers, and is covered by section 33 of the Judicial Code. The next provision is for the removal of suits by aliens against nonresident citizens of a state who are acting as civil officers of the United States, and is covered by sec- tion 34 of the Judicial Code. i Ante, p. 226. 113) FEDERAL QUESTIONS 309 FEDERAL QUESTIONS 113. In suits of a civil nature at law or in equity, the de- fendant or defendants are given a right of removal from the state to the federal court in cases aris- ing under the Constitution or laws of the United States, or treaties made under their authority. In order for a case to be removable under this prin- ciple, the existence of the federal question must be apparent on the face of the plaintiff's pleadings, and it must be such a case as would be cognizable by the court if the same were originally brought therein. Cases Arising under the Constitution and Laws of the United States, Commonly Called Federal Questions This is the first class named in section 28 of the Judicial Code, which, as stated above, covers the great mass of re- movable cases, and hence it is best to quote the section in full in this connection. It is as follows : "Any suit of a civil nature, at law or in equity, arising under the Constitution or laws of the United States, or treaties made, or which shall be made, under their author- ity, of which the district courts of the United States are given original jurisdiction by this title, which may now be pending or which may hereafter be brought, in any state court, may be removed by the defendant or defend- ants therein to the district court of the United States for the proper district. Any other suit of a civil nature, at law or in equity, of which the district courts of the United States are given jurisdiction by this title, and which are now pending, or which may hereafter be brought, in any state court, may be removed into the district court of the United States for the proper district by the defendant or defendants therein, being nonresidents of that state. And when in any suit mentioned in this section there shall be a 310 DISTRICT COURT JURISDICTION BY REMOVAL (Ch. 14 controversy which is wholly between citizens of different states, and which can be fully determined as between them, then either one or more of the defendants actually inter- ested in such controversy may remove said suit into the district court of the United States for the proper district. And where a suit is now pending, or may hereafter be brought, in any state court, in which there is a controversy between a citizen of the state in which the suit is brought and a citizen of another state, any defendant, being such citizen of another state, may remove such suit into the district court of the United States for the proper district, at any time before the trial thereof, when it shall be made to appear to said district court that from prejudice or local influence he will not be able to obtain justice in such state court, or in any other state court to which the said defend- ant may, under the laws of the state, have the right, on account of such prejudice or local influence, to remove said cause: Provided, that if it further appear that said suit can be fully and justly determined as to the other defend- ants in the state court, without being affected by such prejudice or local influence, and that no party to the suit will be prejudiced by a separation of the parties, said dis- trict court may direct the suit to be remanded, so far as relates to such other defendants, to the state court, to be proceeded with therein. "At any time before the trial of any suit which is now pending in any district court, or may hereafter be entered therein, and which has been removed to said court from a state court on the affidavit of any party plaintiff that he had reason to believe and did believe that, from prejudice or local influence, he was unable to obtain justice in said state court, the district court shall, on application of the other party, examine into the truth of said affidavit and the grounds thereof, and, unless it shall appear to the sat- isfaction of said court that said party will not be able to 113) FEDERAL QUESTIONS 311 obtain justice in said state court, it shall cause the same to be remanded thereto. "Whenever any cause shall be removed from any state court into any district court of the United States, and the district court shall decide that the cause was improperly removed, and order the same to be remanded to the state court from whence it came, such remand shall be imme- diately carried into execution, and no appeal or writ of er- ror from the decision of the district court so remanding such cause shall be allowed: Provided, that no case aris- ing under an act entitled 'An act relating to the liability of common carriers by railroad to their employees in cer- tain cases,' approved April twenty-second, nineteen hun- dred and eight, or any amendment thereto, and brought in any state court of competent jurisdiction shall be re- moved to any court of the United States." Analyzing the first sentence of this section, it will be seen that, in order to remove a case under its provisions, it must be, first, a suit of a civil nature, at law or in eq- uity; second, it must arise under the Constitution or laws of the United States, or treaties made or which shall be made under their authority, of which the district courts are given original jurisdiction; third, it is removable only by the defendant. The question what constitutes a suit of a civil nature at law or in equity has been discussed in connection with the original jurisdiction of the district court. 20 The same general principles apply in connection with the removal of cases. As shown, also, in that same connection, a mandamus proceeding is not such a suit as can be originally brought, and hence not such a suit as can be removed. 21 20 Ante, p. 220. 21 Indiana v. Lake Erie & W. R. Co. (C. C.) 85 Fed. 1; State ex rel. Clark v. White River Valley R. Co., 27 S. D. 65, 129 N. W. 1034. See "Removal of Causes," Dec. Dig. (Key-No.) 4; Cent. Dig. 16, SI. 312 DISTRICT COURT JURISDICTION BY REMOVAL (Ch. 14 For the same reason a mere dependent or ancillary suit cannot be removed. 22 In order to permit the removal of a case as arising un- der the Constitution and laws of the United States, this must appear on the face of the plaintiff's pleadings, and cannot be made to appear by the averments of the petition to remove. The construction of the act of August 13, 1888 (25 Stat. 433, c. 866 [U. S. Comp. St. 1901, p. 508]), as carried into section 28 of the Judicial Code, in this re- spect makes a radical difference between it and the act*of March 3, 1875 (18 Stat. 470, c. 137), which it amended. Under that act, if it appeared either by the plaintiff's pleadings, or the defense thereto, or in any way, at the time of filing the petition of removal, that the case turned on a federal question, it was removable. The reason of the difference in construction is that the later act provides that only those cases can be removed which could have been brought originally in the district court. It has been seen in discussing the original jurisdiction that the district court has no jurisdiction on the ground of a federal ques- tion being involved unless that appears from the plaintiff's own statement of his own case, and that even a statement in the plaintiff's case, by way of anticipation, that the de- fendants will set up a federal question, will not give the court jurisdiction. 23 Hence, as the courts would not have had jurisdiction unless this appeared from the plaintiff's own case, it follows that they cannot have jurisdiction of a case removed from a state court as involving a federal question unless the plaintiff's own statement of his case in the state court necessarily shows that a federal question was involved. The leading case on this subject is Tennessee v. Union 22 Farrell v. O'Brien, 199 U. S. 89, 25 Sup. Ct 727, 50 L. Ed. 101; Daugherty v. Sharp (C. C.) 171 Fed. 466. See "Removal of Causes," Dec. Dig. (Key-No.) 4; Cent. Dig. 21, 22. as Ante, p. 236. 113) FEDERAL QUESTIONS 313 & Planters' Bank. 24 Under this principle there are many cases which naturally involve a federal question on the trial, and which cannot be removed because there is noth- ing on the face of the plaintiff's pleadings to show that a federal question was involved. For instance, it has been seen that a suit against a United States marshal for an il- legal levy involves a federal question. Yet if the plaintiff so words his declaration that nothing appears on the face of it to show that the defendant is a United States marshal, or that he is acting in any federal capacity, but shows merely an ordinary action of trover, the case could not be removed; for the federal question would only come out in defense in such case, and hence would not appear in the plaintiff's petition. 26 Suits against Corporations Organized under Federal Law This principle works out interestingly in suits against corporations owing their existence to federal legislation. It has long been settled that a federal question is involved if a suit is brought against a corporation organized by vir- tue of federal law. In Oregon Short Line & U. N. R. Co. v. Skottowe, 26 the plaintiff's declaration alleged that the defendant corporation was organized under state stat- utes, artd merely held certain additional powers under an act of Congress. The court held that here, too, in order to remove on the ground of being a federal corporation, it must appear on the face of the plaintiff's pleadings to have been such, and that it did not become such merely because an act of Congress gave it some additional powers. 24 152 U. S. 454, 14 Sup. Ct. 654, 38 L. Ed. 511. See, also, Minne- sota v. Northern Securities Co., 194 U. S. 48, 24 Sup. Ct 598, 48 L. Ed. 870; In re Winn, 213 U. S. 458, 29 Sup. Ct. 515, 53 L. Ed. 873; W. G. Coyle & Co. v. Stem, 193 Fed. 582, 113 C. C. A. 450. See "Re- moval of Causes," Dec, Dig. (Key-No.) 25; Cent. Dig. 58-59. 25 WALKER v. COLLINS, 167 U. S. 57, 17 Sup. Ct. 738, 42 L. Ed. 76 ; Mayo v. Dockery (C. C.) 108 Fed. 897. See "Removal of Caus- es," Dec. Dig. (Key-No.) 25; Cent. Dig. 58, 59. ze 162 U. S. 490, 16 Sup. Ct. 869, 40 L. Ed. 1048. See "Removal of Causes," Dec. Dig. (Key-No.) 19, 25; Cent. Dig. 37-46, 59. 314 DISTRICT COURT JURISDICTION BY REMOVAL (Ch. 14 But in the later case of Texas & P. R. Co. v. Cody, 27 which was a suit by a resident of the district where the suit was brought against a nonresident corporation or- ganized under federal law, the court held that the case could be removed by the defendant as a nonresident defend- ant, independent of the question of its paternity. It went on to say, however, that, while the general principle an- nounced in the Oregon Short Line Case was correct, the case could be removed on the ground of the defendant be- ing a federal corporation if it became such by virtue of an act of Congress which they were required to notice judi- cially, though there was nothing on the face of the plain- tiff's declaration to show it; thus restricting to some ex- tent the principle laid down in the Oregon Short Line Case. Independent, however, of this question of pleading, the mere fact that a corporation is a federal corporation injects a federal question into the case. If it cannot be removed on the ground that such federal question is involved, for the reason that it does not so appear on the pleadings, there are many cases where this fact would give a right to a writ of error to the state court from the Supreme Court if the action of the state court deprived the company of any right claimed under the federal acts. 28 However, the fact that the suit in a state court is against a receiver appointed by a federal court does not involve a federal question. In such case the statute permits suits against the receiver, who is appointed under the general 27 166 U. S. 606, 17 Sup. Ct. 703, 41 L. Ed. 1132. In such case the right to remove is not defeated by joining other defendants with the federal corporation, but all must join in the petition to remove. In re Dunn, 212 TJ. S. 374, 29 Sup. Ct. 299, 53 L. Ed. 558 ; Texas & P. R. Co. v. Eastin & Knox, 214 U. S. 153, 29 Sup. Ct 564, 53 L. Ed. 946. See "Removal of Causes," Dec. Dig. (Key-No.) 25; Cent. Dig. 58, 59. 2Boyd v. Great Western Coal & Coke Co. (C. C.) 189 Fed. 115; The Dalles & R. Ferry Co. v. Hendryx (C. C.) 189 Fed. 266. See "Removal of Causes," Dec. Dig. (Key-No.) 25; Cent. Dig. 58, 59. 113) FEDERAL QUESTIONS 815 chancery powers of the court, and the mere fact that he is appointed by a federal court does not make it a federal question. 29 A federal question is not involved when a suit is brought in a state court to enjoin the importation of armed men into the state, for the purpose of controlling a strike, by a corporation organized outside of the state; the ground of the suit being that their importation would be dangerous to the peace and good order of the state. 30 A Suit is Not Removable on the Ground that a Federal Ques- tion is Involved unless it is a Case of Which the District Court is Given Original Jurisdiction by the First Section of the Act In order for the federal court to have original jurisdic- tion if the suit were brought there on the ground that a federal question was involved, it must not only be a suit of a civil nature at common law or in equity, but it must involve, exclusive of interest and costs, the sum or value of three thousand dollars. This monetary limit has been discussed in connection with the original jurisdiction. 31 This restriction, however, limiting the right of removal to suits which could be originally brought in a federal court, refers simply to the question of jurisdiction over the subject-matter, not to the latter part of the section pre- scribing the district of suit. The latter requirement is a mere question of jurisdiction over the person, and is waiv- able, whereas the former is a question of jurisdiction, vital to maintaining any suit at all, and cannot be waived. It 2 Gableman v. Railway Co., 179 U. S. 335, 21 Sup. Ct. 171, 45 L. Ed. 220, limiting Texas & P. Ry. Co. v. Cox, 145 U. S. 593, 12 Sup. Ct. 905, 36 L. Ed. 829; Rural Home Tel. Co. v. Powers (C. C.) 376 Fed* 986; People of State of New York v. Bleecker St. & F. F. R. Co. (C. C.) 178 Fed. 156. See "Removal of Causes," Dec. Dig. (Key- No.) 19; Cent. Dig. 48. so Arkansas v. Kansas & T. Coal Co., 183 U. S. 185, 22 Sup. Ct. 47, 46 L. Ed. 144. See "Removal of Causes," Dec. Dig. (Key-No.) 19; Cent. Dig. 37-46. si Ante, p. 227. 316 DISTRICT COURT JURISDICTION BY REMOVAL (Ch. 14 was the intention of Congress by this restriction on re- moval of cases to limit them simply in reference to juris- diction over the subject-matter, not in reference to juris- diction over the person. 32 This limitation as to original jurisdiction shuts out cases over which federal courts, as courts of equity, have no ju- risdiction, though the state court would have by reason of a special state statute. As an illustration, many states have statutes permitting attacks on deeds alleged to be fraudulent, without obtaining a previous judgment. Hence a suit brought originally in a state court would be within the jurisdiction of that court. The federal courts have held, however, that these statutes cannot confer equity juris- diction on the federal courts. Hence a case of this sort cannot be removed from a state court to the federal court, as the federal court could not entertain jurisdiction of it after it was removed : and, if such case were removed, it would remand it. 33 On the other hand, if the state court in which the suit was originally brought would have no jurisdiction over it, and the case was removed into the federal court, the latter court would acquire no jurisdiction thereby, though it might be a case which might have been originally in- stituted in the federal court. In such case, the federal court would not remand, as the state court is the one which is lacking in jurisdiction, but would dismiss the case, for the federal court could not acquire jurisdiction by removal from a court which did not have jurisdiction in the first instance. 32 MEXICAN NAT. R. CO. v. DAVIDSON, 157 U. S. 201, 15 Sup. Ct. 563, 39 L. Ed. 672. See "Removal of Causes," Dec. Dig. (Key-No.) 11, 12; Cent. Dig. 29-33. ss SCOTT v. NEELY, 140 TJ. S. 106, 11 Sup. Ct. 712, 35 L. Ed. 358; Cates v. Allen, 149 U. S. 451, 13 Sup. Ct. 883, 977, 37 L. Ed. 804. See "Removal of Causes," Dec. Dig. (Key-No.) 11; Cent. Dig. 29-31. 113) FEDERAL QUESTIONS 317 An illustration of this principle is those cases where suits have been instituted in a state court to enforce cer- tain provisions of the interstate commerce act, the enforce- ment of which is conferred by that act upon the federal courts alone. In such case the state courts will have no jurisdiction, and if it was removed, the federal courts would acquire no jurisdiction, though the federal courts would have jurisdiction if the suit had originally been brought there. 84 Where a case is removed of which the federal court would have no jurisdiction, even the removing party could question the jurisdiction. This follows necessarily from the fact that, if the want of jurisdiction appears, the court can dismiss the case of its own motion, and hence either party can question it. 35 Under this branch of jurisdiction of cases removed on the ground of a federal question being involved, the whole case goes up if a substantial federal question is really in- volved. In such case the court obtaining jurisdiction on the ground of a federal question will consider all the issues joined, whether federal or not. 36 The party entitled to remove under this provision is simply the defendant, the theory of the right to remove at all being that it is necessary to protect the party from state influences. The plaintiff, having voluntarily resorted to the state court to assert such a right, could not complain if he is not allowed, after suing in that court, to proceed to s* Darnell y. Illinois Cent. R. Co. (C. C.) 190 Fed. 656. See "Re- moval of Causes," Dec. Dig. (Key-No.) 11; Cent. Dig. 29-81. ss German Savings & Loan Soc. v. Dormitzer, 116 Fed. 471, 53 C. C. A. 639 ; Utah-Nevada Co. v. De Lamar, 133 Fed. 113, 66 C. C. A. 179. Compare Garrozi v. Dastas, 204 U. S. 64, 27 Sup. Ct. 224, 51 L. Ed. 369. See "Removal of Causes," Dec. Dig. (Key-No.) 102; Cent. Dig. 218-224. se Omaha Horse Ry. Co. v. Cable Tramway Co. (C. C.) 32 Fed. 727; Texas v. Day Land & Cattle Co. (C. C.) 49 Fed. 593. See "Courts," Dec. Dig. (Key-No.) 263; Cent. Dig. 799; "Removal of Causes" Dec. Dig. (Key-No.) 95; Cent. Dig. 204, 205. 318 DISTRICT COURT JURISDICTION BY REMOVAL (Ch. 14 another. Hence in this case the removal is given to the defendant or defendants. This has been construed to mean all of the defendants. If they are all necessary par- ties, they must all join in the petition for removal, or the case cannot be removed. 37 When, however, it is said that all the defendants must join in the petition for removal, it means all those who are necessary parties as defendants. The right is not de- feated by the failure of nominal or formal parties to join in the petition. 38 Even important parties who are not served, and who do not appear, are not in this sense parties to the suit, and their failure to join in the petition will not defeat the right of removal. Tremper v. Schwabacher 39 was a suit against several partners. Only one was served with process. The others, not being served, did not appear. The court held that the one who was served could remove the case, though the oth- ers did not join in the petition. The question what parties are necessary in suits in the federal courts has been discussed in a previous connec- tion. 40 Suits under the Employer's Liability Act These suits are expressly excluded from the privilege of removal by the concluding proviso of section 28 of the JU- ST Chicago, R. I. & P. R. Co. v. Martin, 178 U. S. 245, 20 Sup. Ct. 854, 44 L. Ed. 1055 ; German Savings & Loan Soc. v. Dorrnitzer, 116 Fed. 471, 53 C. C. A. 639 ; Miller v. Le Mars Nat. Bank (C. C.) 116 Fed. 551 ; In re Dunn, 212 U. S. 374, 29 Sup. Ct. 299, 53 L. Ed. 558. See "Removal of Causes," Dec. Dig. (Keif-No.) 82; Cent. Dig. 163. s s Henderson v. Cabell (C. C.) 43 Fed. 257; Shattuck v. North British & Mercantile Ins. Co., 58 Fed. 609, 7 C. C. A. 386. See "Re- moval of Causes," Dec. Dig. (Key-No.) 77, 82; Cent. Dig. 161, 163. 39 (C. C.) 84 Fed. 413. There is some conflict of authority on the question. See Buck v. Felder (D. C.) 196 Fed. 419, 422, 423. See "Removal of Causes," Dec. Dig. (Key-No.) 77, S2; Cent. Dig. | 161, 16S. 40 Ante, pp. 256, 269. 114) SUITS BY THE UNITED STATES 319 dicial Code. Even diverse citizenship does not give juris- diction in such case. 41 SUITS BY THE UNITED STATES 114. The federal jurisdiction by removal from the state courts extends to suits by the United States. As the federal courts % are given original jurisdiction of these suits by section 24 of the Judicial Code, it follows that the nonresident defendant could remove such a suit into the federal court if brought in a state court, and that, too, independent of the amount involved, as the federal courts have original jurisdiction of suits by the United States, independent of the amount involved. 4i Symonds v. St. Louis & S. E. R. Co. (C. C.) 192 Fed. 353; Strauser v. Chicago, B. & Q. R. Co. (D. C.) 193 Fed. 293 ; Saiek v. Pennsylvania R. Co. (C. C.) 193 Fed. 303; Ullrich v. New York, N. H. & H. R. Co. (D. C.) 193 Fed. 768 ; Hulac v. Chicago & N. W. R. Co. (D. C.) 194 Fed. 747; Stafford v. Norfolk & W. R. Co. (D. C.) 202 Fed. 605. Contra: Van Brimmer v. Texas & P. R. Co. (C. C.) 190 Fed. 394. See "Removal of Causes," Dec. Dig. (Key-No.) S; Cent. Dig. 4, 5. 320 DISTRICT COURT JURISDICTION BY REMOVAL (Ch. 15 CHAPTER XV THE DISTRICT COURT (Continued) JURISDICTION BY RE- MOVAL (Continued) 115. Controversies between Citizens of Different States. 116. Devices to Prevent Removal. 117. Controversies between Citizens of the Same State Claiming Lands under Grants of Different States. 118. Controversies between Citizens of a State and Foreign States, Citizens or Subjects. 119. Parties Entitled to Remove. 120. Separable Controversies. 121. Removal on Ground of Prejudice or Local Influence. 122. Removal because of State Denial of Equal Civil Rights. 123. Removal of Suits against Officers or Persons Enforcing the Internal Revenue Laws. CONTROVERSIES BETWEEN CITIZENS OF DIF- FERENT STATES 115. The twenty-fourth section of the Judicial Code gives the federal courts jurisdiction of suits of a civil nature at common law or in equity in which there shall be a controversy between citizens of different states, and in which the matter in controversy ex- ceeds, exclusive of interest and costs, the sum or value of $3,000; and the twenty-eighth section gives the right of removal in such cases. This is much the most frequent ground of removal in ac- tual practice. In order to give the right of remov- al, the requisites must concur which have been discussed in connection with the original jurisdic- tion of such suits. 1 If the suit, for instance, is not such a suit as the federal court could entertain under its general equity jurisdiction, i Ante, p. 218. 115) CITIZENS OF DIFFERENT STATES 321 though the state court could entertain it, like a suit by a simple-contract creditor to set aside a conveyance which could be brought in a state court by virtue of a state stat- ute, then the federal courts cannot take jurisdiction, but in such case would have to remand. 2 In this class of cases, also, if the court has jurisdiction over the subject-matter of the case, it may be removed, though the suit is not brought in the district of the defend- ant's residence. 8 As to suits brought in a state court in a district where neither plaintiff nor defendant resided, the earlier decisions preponderated in favor of the doctrine that the defendant could remove such a case, on the theory that the defend- ant alone was interested in the place of suit ; but later cas- es have established the doctrine that such a case is not re- movable by defendant without the consent or waiver of the question by plaintiff. 4 Removal as Affected by Assignment This clause limiting removable cases to those cases of which the courts are given original jurisdiction has wrought one other important change in the law. The previous acts did not have such a clause, and hence it was held under them that the clause forbidding the assignee to bring suit unless his assignor could also sue applied only to cases originally instituted in the federal courts, and did not pre- 2 SCOTT v. NEELY, 140 U. S. 106, 11 Sup. Ct. 712, 35 L. Ed. 358 ; Gates v. Allen, 149 U. S. 451, 13 Sup. Ct 883, 977, 37 L. Ed. 804; Anderson v. Sharp (C. C.) 189 Fed. 247 ; ante, pp. 224, 225. See "Re- moval of Causes," Dec. Dig. (Key-No.) 102; Cent. Dig. 218-224. s MEXICAN NAT. R. CO. v. DAVIDSON, 157 U. S. 201, 15 Sup. Ct. 563, 39 L. Ed. 672. See "Removal of Causes," Dec. Dig. (Key- No.) 12; Cent. Dig. 52, S3. * In re Wisner, 203 U. S. 449, 27 Sup. Ct 150, 51 L. Ed. 264 ; In re Moore, 209 U. S. 490, 28 Sup. Ct. 585, 706, 52 L. Ed. 904, 14 Ann. Cas. 1164; Ex parte Harding, 219 U. S. 363, 31 Sup. Ct 324, 55 L. Ed. 252, 37 L. R. A. (N. S.) 392 ; Puget Sound Sheet Metal Works v. Great Northern R. Co. (D. C.) 195 Fed. 350. See "Removal of Caus- es," Dec. Dig. (Key-No.) 12; Cent. Dig. 32, S3. HUGHES FED.PB.(2o ED.) 21 322 DISTRICT COURT JURISDICTION BY REMOVAL (Ch. 15 vent the removal of such cases when originally instituted in the state courts. But the above change in the law has placed original suits and removable cases on the same foot- ing, so that now a suit by an assignee in a state court can- not be removed into the federal court on the ground of diverse citizenship unless it could have been originally in- stituted in the federal court. 5 In discussing the original jurisdiction of the courts, it has been seen that all the parties on each side must be ca- pable of suing or being sued. This same principle applies to cases removable on the ground of diverse citizenship. 6 It is also true in removal as in original cases that this principle only applies to necessary parties, and that the joinder of nominal or unnecessary parties will not defeat the right of removal. 7 DEVICES TO PREVENT REMOVAL 116. The removal of a case may be prevented by various! devices, as by assigning the cause of action to a plaintiff incompetent to sue in the federal courts, or by so framing the suit as to make parties de- fendants who would defeat the jurisdiction; and such devices are successful in the absence of bad faith. 5 MEXICAN NAT. R. CO. v. DAVIDSON, 157 U. S. 201, 15 Sup. Ct. 563, 39 L. Ed. 672 ; Board of Com'rs of Delaware County v. Die- bold Safe & Lock Co., 133 U. S. 473, 10 Sup. Ct 399, 33 L. Ed. 674. See "Removal of Causes," Dec. Dig. (Key-No.) 11; Cent. Dig. 29-31. e Ante, p. 255 ; Gage v. Carraher, 154 TJ. S. 656, 14 Sup. Ct. 1190, 25 L. Ed. 989; Blake v. McKim, 103 U. S. 336, 26 L. Ed. 563. See "Removal of Causes," Dec. Dig. (Key-No.) 29; Cent. Dig. 69. 7 Patterson v. Railroad Co. (C. C.) Ill Fed. 262 ; Bacon v. Rives, 106 U. S. 99, 1 Sup. Ct. 3, 27 L. Ed. 69; Ex parte State of Nebraska, 209 U. S. 436, 28 Sup. Ct. 581, 52 L. Ed. 876 ; Lawrence v. Southern Pac. Co. (C. C.) 165 Fed. 241 ; ante, p. 256. See "Removal Of Causes," Dec. Dig. (Key-No.) 31; Cent. Dig. 71. 116) DEVICES TO PREVENT EEMOVAL 323 It has been seen in the previous discussion 8 that devices to confer jurisdiction upon the federal courts are forbidden by the law. It is, however, a rule which does not work both ways. Devices to prevent such jurisdiction are fre- quently successful. In Oakley v. Goodnow 9 an Iowa corporation which had a claim against a citizen of New York transferred it to an- other citizen of New York under an agreement that the latter should act as trustee in collecting the fund, and ac- count to the assignor for it. The defendant (the law not then limiting the right of removal to nonresident defend- ants) attempted to remove the case to the federal court, claiming that this was a mere device to defeat jurisdiction. The Supreme Court, however, held that it was a device which accomplished its purpose, and that his only relief was in the state court. It is not an uncommon practice to join other defendants- for the purpose of defeating jurisdiction. In personal injury suits, for instance, against nonresi- dent corporations, it is not uncommon for a plaintiff who may desire to prevent removal to join with the corporation itself the employe who was responsible for the accident, if his citizenship is the same as that of the plaintiff. Under such circumstances the right of removal would be defeated if the cause of action asserted is bona fide, for the plaintiff has the right, in an honest discretion, to bring his suit this way; and this is true though the parties joined might have different defenses, for the right of removal is judged inde- pendent of the defense, and the court has no right to dictate to the plaintiff how he should bring his suit. 10 s Ante, p. 285. 118 U. S. 43, 6 Sup. Ct. 944, 30 L. Ed. 01. See "Removal of Causes," Dec. Dig. (Key-No.) 35; Cent. Dig. 77, 78. 10 Charman v. Lake Erie & W. R. Co. (C. C.) 105 Fed. 449; Chica- go, R. I. & P. R. Co. v. Martin, 178 U. S. 245, 20 Sup. Ct. 854, 44 L. Ed. 1055 ; Person v. Illinois Cent. R. Co. (C. C.) 118 Fed. 342. Com- pare Helms v. Northern Pac. R. Co. (C. C.) 120 Fed. 389. See "Re- moval of Causes" Dec. Dig. (Key-No.) 36; Cent. Dig. 79. 324 DISTRICT COURT JURISDICTION BY REMOVAL (Ch. 15 On the other hand, where such a joinder is made with the knowledge on the plaintiff's part that the allegations on which it is based are false, and that he cannot expect to re- cover, and with the intent on his part to defeat the right of removal, he will fail in his object, and the court, on proper charges in the petition, will permit such removal. Such a right of removal, however, when sustainable under these authorities, rests upon the necessity of practically proving bad faith, and a motive to defeat removal is not sufficient evidence of bad faith. 11 Rearrangement of Parties In passing upon the right of removal, the same principle applies as in original suits. The court judges of the right by the actual interest of the parties, and not by the meth- od in which the pleader may choose to arrange them. 12 11 Wecker r. National Enameling & Stamping Co., 204 U. S. 176, 27 Sup. Ct. 184, 51 L. Ed. 430, 9 Ann. Cas. 757; Chicago, B. & Q. R. Co. v. Willard. 220 U. S. 413, 31 Sup. Ct 460, 55 L. Ed. 521; Chicago, R. I. & P. R. Co. v. Dowell, 229 U. S. 102, 33 Sup. Ct. 684. 57 L. Ed. ; Hukill v. Maysville & B. S. R. Co. (C. C.) 72 Fed. 745 ; Union Terminal R. Co. v. Chicago, B. & Q. R. R. Co. (C. C.) 119 Fed. 209 ; Bryce v. Southern R. Co. (C. C.) 125 Fed. 958 ; Crawford v. Illi- nois Cent. R. Co. (C. C.) 130 Fed. 395 ; Boatmen's Bank of St. Louis v. Fritzlen, 135 Fed. 650, 68 C. C. A. 288 ; McGuire v. Great Northern R. Co. (C. C.) 153 Fed. 434; Foster v. Coos Bay Gas & Electric Co. (C. C.) 185 Fed. 979 ; Enos v. Kentucky Distilleries & Warehouse Co., 189 Fed. 342, 111 C. C. A. 74; Armstrong v. Kansas City Southern R. Co. (C. C.) 192 Fed. 608 ; Clark v. Chicago, R. I. & P. R. Co. (D. C.) 194 Fed. 505. See "Removal of Causes," Dec. Dig. (Key-No.) 36; Cent. Dig. 79. 12 Removal Cases, 100 U. S. 457, 25 L. Ed. 593; Evers v. Watson, 156 II. S. 527, 15 Sup. Ct. 430, 39 L. Ed. 520; Steele v. Culver, 211 U. S. 26, 29 Sup. Ct. 9, 53 L. Ed. 74. See "Removal of Causes," Dec. Dig. (Key-No.) 37; Cent. Dig. 80. 117) LAND GRANTS OF DIFFERENT STATES 325 CONTROVERSIES BETWEEN CITIZENS OF THE SAME STATE CLAIMING LANDS UNDER GRANTS OF DIFFERENT STATES 117. As the federal courts are given jurisdiction of contro- versies between citizens of the same state claiming lands under grants of different states, such a case would be removable. In such case, however, there is a special provision in sec- tion 30 of the Judicial Code, which shows the method un- der which it is necessary to make it appear to the court that such a question is involved. The language of that section is as follows : "If in any action commenced in a state court the title of land be concerned, and the parties are citizens of the same state and the matter in dispute exceeds the sum or value of three thousand dollars, exclusive of inter- est and costs, the sum or value being made to appear, one or more of the plaintiffs or defendants, before the trial, may state to the court, and make affidavit if the court require it, that he or they claim, and shall rely upon, a right or title to the land under a grant from a state, and produce the orig- inal grant, or an exemplification of it, except where the loss of public records shall put it out of his or their power, and shall move that any one or more of the adverse party in- form the court whether he or they claim a right or title to the land under a grant from some other state, the party or parties so required shall give such information, or otherwise not be allowed to plead such grant or give it in evidence upon the trial. If he or they inform the court that he or they do claim under such grant, any one or more of the party moving for such information may then, on petition and bond, as hereinbefore mentioned in this chapter, re- move the cause for trial to the district court of the United States next to be holden in such district; and any one of DISTRICT COURT JURISDICTION BY REMOVAL (Ch. 15 either party removing the cause shall not be allowed to plead or give evidence of any other title than that by him or them stated as aforesaid as the ground of his or their claim." It should be noted that no monetary limit is required in suits of this nature originally instituted in the district court under section 24 of the Judicial Code, whereas there is a limit of $3,000 as to suits removed on this ground. CONTROVERSIES BETWEEN CITIZENS OF A STATE AND FOREIGN STATES, CITI- ZENS OR SUBJECTS 118. In such case the right of removal exists, as it is a class of which the federal courts are given original ju- risdiction by the twenty-fourth section of the Judi- cial Code. This class does not cover controversies between aliens. Of such cases the federal courts have no jurisdiction. 13 There is a conflict of decision on the question whether a federal court would have jurisdiction in a case where citi- zens of a state are plaintiffs, and citizens of a different state and aliens are defendants. In Tracy v. Morel 14 it is held that this latter is a casus omissus in the statute, and that the federal courts would not have jurisdiction. On the other hand, in Roberts v. Pacific & A. R. & Nav. Co. 15 Judge Hanford, in a well-con- 13 Merchants' Cotton Press & Storage Co. v. Insurance Co. of N. A., 151 U. S. 368, 14 Sup. Ct. 367, 38 L. Ed. 195; Pooley v. Luco (C. C.) 72 Fed. 561; ante, p. 262. See "Removal of Causes," Dec. Dig. (Key-No.) 41; Cent. Dig. 82^-84. i* (C. C.) 88 Fed. 801. See "Removal of Causes," Dec. Dig. (Key- No.) 41; Cent. Dig. 82y 2 -84. is (C. C.) 104 Fed. 577, affirmed on this point but reversed on the merits 121 Fed. 785, 58 C. C. A. 61. See "Removal of Causes," Dec. Dig. (Key-No.) 41; Cent. Dig. 118) CITIZENS AND FOREIGN STATES, SUBJECTS, ETC. 327* sidered opinion, holds that such a case would fall within the federal jurisdiction. It seems to the author that, how- ever liberally the removal act ought to be construed, the line of decisions holding- that the case does not fall within the jurisdiction of the federal courts best accords with the statute. If a federal court has jurisdiction, it must be un- der one of two phrases in the first section of the Act of August 13, 1888 either on the language, (1) "in which there shall be a controversy between citizens of different states"; or (2) "a controversy between citizens of a state and foreign states, citizens or subjects." If the rulings of the federal courts in other connections to the effect that a "controversy between citizens of differ- ent states" means a controversy in which all the citizens on one side and all the citizens on the other are citizens of different states, jurisdiction in the case supposed could cer- tainly not be supported upon that, for one of the parties defendant in such case is not a citizen, but an alien. On the other hand, if that same principle of construction is ap-' plied to the second class, a controversy in the case suppos- ed is not between citizens of a state and foreign states, cit- izens or subjects, for one of the defendants is neither a for- eign state, citizen nor subject, but a citizen of a different state. This would seem to be the necessary construction of the statute, and this is the view taken by the standard work on the subject. 16 A suit by an alien against a corporation, nonresident in the district where the suit is brought, is removable by the nonresident corporation. 17 And so as to a suit by a citizen i Black, Dill. Rem. Causes, 34. IT Stalker v. Pullman's Palace-Car Co. (C. C.) 81 Fed. 989; Decker v. Southern R. Co. (C. C.) 189 Fed. 224; Smellie v. Southern Pac. Co. (D. C.) 197 Fed. 641. But there is some conflict. Odhner v. Northern Pac. R. Co. (C. C.) 188 Fed. 507. See "Removal of Causes," Dec. Dig. (Key-No.) 27; Cent. Dig. 64-68. 328 DISTRICT COURT JURISDICTION BY REMOVAL (Ch. 15 against an alien. 18 But not a suit by a state against an alien nonresident. 19 PARTIES ENTITLED TO REMOVE 119. Under all the classes of cases previously discussed, ex- cept cases arising under the Constitution and laws of the United States, the right of removal is in the defendant, provided he is a nonresident. As the right to confer jurisdiction in such cases on the federal courts is based on the theory of protection from local prejudice or injustice, it is natural that only the non- resident should have the right to remove in cases where the jurisdiction does not depend upon a federal question; and the statute follows this theory in the second sentence of section 28 of the Judicial Code. Here, too, the principle applies that all of the defendants who are necessary parties must join in the petition to re- move, and that all must be nonresidents. Though the cit- izenship might otherwise be such as would give the fed- eral courts jurisdiction over the subject-matter, still in this case only the nonresident can remove. 20 If, however, the permanent residence of the defendant is outside of the district where suit is brought, his temporary is Wind River Lumber Co. v. Frankfort Marine, Accident Plate Glass Ins. Co., 196 Fed. 340, 116 C. C. A. 160. See "Removal of Causes," Dec. Dig. (Key -No.) 27, 45; Cent. Dig. 64-68, 89. is O'Conor v. Texas, 202 U. S. 501, 26 Sup. Ct. 726, 50 L. Ed. 1120. See "Removal of Causes," Dec. Dig. (Key-No.) 41; Cent. Dig. 20 Martin v. Snyder, 148 TJ. S. 663, 13 Sup. Ct. 706, 37 L. Ed. 602; Blackburn v. Blackburn (C. C.) 142 Fed. 901 ; Hackett v. Kuhne (C. C.) 157 Fed. 317; McNaul v. West Indian Securities Corp. (C. C.) 178 Fed. 308. See "Removal of Causes," Dec. Dig. (Key-No.) 44, 45; Cent. Dig. 88, 89. 120) SEPARABLE CONTROVERSIES 329 residence in the district will not defeat his right of re- moval. 21 The nominal plaintiff may sometimes be the real defend- ant and as such entitled to remove, as under state statutes prescribing that a party who cannot really control the liti- gation shall occupy the position of plaintiff on the record." SEPARABLE CONTROVERSIES 120. The jurisdiction by removal from state courts extends to controversies wholly between citizens of differ- ent states, and which can be fully determined as between them, when removal could be had as to any one or more of the defendants under the gen- eral principles heretofore discussed; such right of removal being granted in such cases to any one or more defendants actually interested. In order to justify a removal on this ground, the contro- versy in a suit must be a separate and distinct cause of action, on which a separate suit could be maintained as between the parties thereto, inde- pendent of the others, and not a mere incidental controversy growing out of the main suit. This class of removal cases is commonly called separable controversies. In order to obtain a removal on this ground, it must ap- pear from the plaintiff's pleadings that the contro- versy which it is desired to remove is a separable controversy. The third sentence of section 28 of the Judicial Code pro- vides : "And when in any suit mentioned in this section 21 Chiatovich v. Hanchett (C. C.) 78 Fed. 193. See "Removal of Causes," Dec. Dig. (Key-No.) U, 45; Cent. Dig. 88, 89. 22 Mason City & Ft. D. R. Co. v. Boynton, 204 U. S. 570, 27 Sup. Ct. 321, 51 L. Ed. 629. See "Removal of Causes," Dec. Dig. (Key- U; Cent. Dig. 88. 330 DISTRICT COURT JURISDICTION BY REMOVAL (Ch. 15 there shall be a controversy which is wholly between citi- zens of different states, and which can be fully determined as between them, then either one or more of the defendants actually interested in such controversy may remove said suit into the district court of the United States for the proper district." This is the class of removable cases commonly spoken of as separable controversies a class which has been much discussed in the courts. It applies only to controversies between citizens of different states, so that controversies between citizens and aliens are not included. 23 In this class of cases, although the citizenship of the par- ties on whom the right of removal is conferred can be made to appear in the petition for removal, and need not neces- sarily appear in the plaintiff's pleading, as such an allega- tion is not a part of any system of pleading, it must never- theless appear from the plaintiff's pleading that the contro- versy which it is desired to remove is a separable controver- sy. Its capacity of severance must be decided solely upon the plaintiff's pleading, not upon the petition for removal, nor upon the defense set up. There may be separate issues in a case, but they do not constitute separable controver- sies. There may be defenses which are good as to some, and not as to others, but they do not make separable con- troversies. 24 The courts have narrowed very much the cases which are removable under this act. As has been stated above, the fact that the issues or defenses are separate does not make the controversy separate. It is equally well settled 23 Creagh v. Equitable Life Assurance Society of United States (C. C.) 88 Fed. 1. See "Removal of Causes," Dec. Dig. (Key-No.) 48, 59; Cent. Dig. 94. 24 Fidelity Ins., Trust & Safe Deposit Co. v. Huntington, 117 TJ. S. 280, 6 Sup. Ct. 733, 29 L. Ed. 898; Putnam v. Ingraham, 114 U. S. 57, 5 Sup. Ct. 746, 29 L. Ed. 65 ; Louisville & N. R. Co. v. Wangelin, 132 U. S. 599, 10 Sup. Ct 203, 33 L. Ed. 474; Foster v. Coos Bay Gas & Electric Co. (C. C.) 185 Fed. 979. See "Removal of Causes," Dec. Dig. (Key-No.) 48, 61; Cent. Dig. 94, 115. 120) SEPARABLE CONTEOVEBSIES 331 that even a controversy which is separable does not give a ground of removal if that controversy is a question merely incidental to the main controversy in the cause, and not of itself a principal controversy. For instance, Graves v. Cor- bin 2B was a bill to subject partnership assets to the pay- ment of debts, and to set aside,- as fraudulent, certain judg- ments confessed by the partnership. It was neld that one of these judgment creditors could not remove the case, as the question of the validity of his judgment, though de- pending on different grounds, was a mere incident to the main litigation, which was to wind up the partnership as- sets. So, in Torrence v. Shedd, 28 which was a partition suit, a dispute between two of the parties in that suit as to their rela- tive interests in the share of one of these parties was not so separable as to give the right of removal. In Bellaire v. Baltimore & O. R. Co. 27 which was a pro- ceeding by the city of Baltimore to condemn a right of way for a street across a strip of land, to which the owner and the lessee were made parties, it was held that the les- see could not remove, although its interests would be sep- arately valued, as that was a mere incident to the main question, which was the right of condemnation at all. In Colburn v. Hill, 28 which was a creditors' suit to wind up a corporation, and distribute its assets, and exclude cer- tain defendants from sharing in the assets on the ground that a certain contract held by them with the corporation 26 132 TL S. 571, 10 Sup. Ct. 196, 33 L. Ed. 462. See, also, Miller v. Clifford, 133 Fed. 880, 67 C. C. A. 52, 5 L. R. A. (N. S.) 49. See "Removal of Causes," Dec. Dig. (Key-No.) % 52; Cent. Dig. 102- 105. 26 144 U. S. 527, 12 Sup. Ct 726, 36 L. Ed. 528. See "Removal of Causes," Dec. Dig. (Key-No.) 51; Cent. Dig. 101. 27 146 U. S. 117, 13 Sup. Ct. 16, 36 L. Ed. 910. See "Removal of Causes," Dec. Dig. (Key-No.) 51; Cent. Dig. 101. 28 101 Fed. 500, 41 C. C. A. 467. See "Removal of Causes," Deo. Dig. (Key-No.) 53; Cent. Dig. 332 DISTRICT COURT JURISDICTION BY REMOVAL (Ch. 15 was invalid, it was held that these defendants could not remove the case on the ground of a separable controversy. The Supreme Court has repeatedly said that, in order to justify a removal on this ground, the controversy in the suit must be a separate and distinct cause of action, on which a separate suit might have been maintained as be- tween the parties therein interested, independent of the others. 29 Under these principles, suits on joint or joint and several contractual liabilities are not removable by some of the de- fendants. If. the plaintiff elects to bring his suit in such a shape as to claim a joint liability against the defendants on contract, it is not for them to prevent him from trying his suit in his own way; and part of them cannot, therefore, obtain a removal on this ground. 30 On the same principle, a case which appears from the plaintiff's declaration to be a joint action in tort against several defendants cannot be removed by one of those de- fendants. 31 There have been many decisions on the question of suits for personal injuries where both the defendant corporation and the employe causing the accident are sued. In such case, if, as far as the pleadings show, the cause of action is a joint one, it cannot be removed by one of the two de- fendants. This, however, though to a certain extent a 2 e HYDE v. RUBLE, 104 U. S. 407, 26 L. Ed. 823; Fraser v. Jenuison, 106 U. S. 191, 1 Sup. Ct. 171, 27 L. Ed. 131. See "Remov- al of Causes," Dec. Dig. (Key-No.) 48; Cent. Dig. 93, 94. so Louisville & N. R. Co. v. Ide, 114 U. S. 52, 5 Sup. Ct. 735, 29 L. Ed. 63; STONE v. SOUTH CAROLINA, 117 U. S. 430, 6 Sup. Ct. 799, 29 L. Ed. 962; Lewis v. Cincinnati, N. O. & T. P. Ry. Co. (O. C.) 192 Fed. 654 ; ante, pp. 323, 324. See "Removal of Causes," Dec. Dig. (Key-No.) A9; Cent. Dig. 95-99. 31 Pirie v. Tvedt, 115 U. S. 41, 5 Sup. Ct. 1034, 1161, 29 L. Ed. 331; CHESAPEAKE & O. RY. CO. v. DIXON, 179 U. S. 131, 21 Sup. Ct 67, 45 L. Ed. 121 ; Chicago, R. I. & P. R. Co. v. Dowell, 229 U. S. 102, 33 Sup. Ct. 684, 57 L. Ed. ; Stevenson v. Illinois Cent. R. Co. (C. C.) 192 Fed. 956. See "Removal of Causes," Dec. Dig. (Key- No.) 49; Cent. Dig. 95-99. 120) SEPAEABLE CONTROVERSIES 333 question of pleading, depends upon the further question whether such suits are, in fact and in law, joint suits against the employer and employe. In Chesapeake & O. Ry. Co. v. Dixon, 82 referred to in a previous connection, the Supreme Court was careful to base its opinion upon the fact that the declaration alleged joint negligence ; and the decision was influenced to some extent by the fact that in Kentucky, where the action arose, the decisions were that a joint action by an injured party against an employer and employe was one in which they were jointly liable. But in Helms v. Northern Pac. R. Co. 33 Judge Amidon, in an exceedingly well considered opinion, reviewing the authorities, including the above- named Supreme Court case, held that under certain circum- stances, at least, such a suit would not be a suit for a joint tort; that the liability of a master and servant rested on different grounds; and that, unless it appeared from the declaration, or at least was consistent with it, that the neg- ligence complained of was such a negligence as gave a joint cause of action, the defendant could remove. The case was a suit by a servant against the fellow servant who caused the negligence, and the corporation who employed them both. At common law the corporation would not as 179 U. S. 131, 21 Sup. Ct. 67, 45 L. Ed. 121. See, also, Southern Ry. Co. v. Carson, 194 U. S. 136, 24 Sup. Ct. 609, 48 L. Ed. 907; Alabama G. S. R. Co. v. Thompson, 200 U. S. 206, 26 Sup. Ct 161, 50 L. Ed. 441, 4 Ann. Cas. 1147 ; Cincinnati, N. O. & T. P. R. Co. v. Bohon, 200 U. S. 221, 26 Sup. Ct. 166, 50 L. Ed. 448, 4 Ann. Cas. 1152; Southern R. Co. v. Miller, 217 U. S. 209, 30 Sup. Ct. 450, 54 L. Ed. 732; Chicago, B. & Q. R. Co. v. Willard, 220 U. S. 413, 31 Sup. Ct. 460, 55 L. Ed. 521 ; Chicago, R. I. & P. R. Co. v. Schwyhart, 227 U. S. 184, 33 Sup. Ct. 250, 57 L. Ed. . See "Removal of Caus- es," Dec. Dig. (Key-No.) 49; Cent. Dig. 95-99. ss (C. C.) 120 Fed. 389. The question is influenced greatly by the consideration whether under the law of the state the suit would be a joint one. McAllister v. Chesapeake & O. R. Co. (D. C.) 198 Fed. 660 ; Chicago, R. I. & P. R. Co. v. Schwyhart, 227 U. S. 184, 33 Sup. Ct. 250, 57 L. Ed. . See "Removal of Causes," Dec. Dig. (Key- No.) 49; Cent. Dig. 95-99. 334 DISTRICT COURT JURISDICTION BY REMOVAL (Ch. 15 have been liable, on account of the fellow-servant principle, but was made liable by a state statute. Consequently he held that the liability of the defendant employe was on the ground of negligence, and that of the company on the lan- guage of the statute, which did not necessarily require neg- ligence, and hence that the causes of action were separate, and that the case could be removed. Where the grounds of negligence against the company and employe are different, especially where the ground as to one is statutory, there is a separable controversy. 34 In separable controversies the principle also applies that the right of removal depends upon those who are necessary parties, grouped or rearranged according to the actual in- terests of the parties, and not according to the fancy of the pleader. 35 A party is not a necessary party who has not been served with process and brought before the court when the plain- tiff proceeds to trial against the one in court. In Berry v. St. Louis & S. F. R. Co., 36 which was a suit against a resi- dent and nonresident, and in which process was not serv- ed on the resident defendant, it was held that the nonresi- dent could remove the case, though the liability asserted 34 Lockard v. St. Louis & S. F. R. Co. (C. C.) 167 Fed. 675 ; Evans- berg v. Insurance Stove Range & Foundry Co. (C. C.) 168 Fed. 1001 ; Jackson v. Chicago, R. I. & P. R. Co., 178 Fed. 432, 102 C. C. A. 159 ; Marach v. Columbia Box Co. (C. C.) 179 Fed. 412 ; Shaver v. Pacific Coast Condensed Milk Co. (C. C.) 185 Fed. 316; Nichols v. Chesapeake & O. R. Co., 195 Fed. 913, 115 C. C. A. 601; Cayce v. Southern R. Co. (D. C.) 195 Fed. 786. See "Removal of Causes," Dec. Dig. (Key-No.) 49; Cent. Dig. 95-99. ss Geer v. Mathieson Alkali Works, 190 U. S. 428, 23 Sup. Ct 807, 47 L. Ed. 1122; Lamm v. Parrott Silver & Copper Co. (C. C.) Ill Fed. 241; Ireton v. Pennsylvania Co., 185 Fed. 84, 107 C. C. A. 304. 8ee "Removal of Causes," Dec. Dig. (Key-No.) //S; Cent. Dig. & 93, 9.'/. so (C. C.) 118 Fed. 911; ante, p. 318. But there is some conflict, though the text states in the opinion of the author the better doc- trine. Compare Armstrong v. Kansas City Southern R. Co. (C. C.) 192 Fed. 608. See "Removal of Causes" Dec. Dig. (Key-No.) 40; Cent. Dig. 95-99. 120) SEPARABLE CONTROVERSIES 335 was joint and several, as the plaintiff, by not bringing the resident defendant into court and pushing his case against the other, had voluntarily elected to make the controversy separable. In order to sustain a removal on the ground of separable controversy, it is necessary as, indeed, is stated in the statute that the controversy must be fully determinable as between the parties to that controversy. 37 The following are instances of controversies held sepa- rable : A suit to avoid an alleged fraudulent transfer between two corporations, to which the directors of one of the cor- porations were made parties, though not for the purpose of any actual relief against them, was held removable, though the plaintiff and some of the directors were citizens of the same state. 38 A suit against a corporation alleged to be insolvent, and a second defendant alleged to have assumed its debts, was held to be removable by the second defendant. 39 A suit involving the liability of the officers of a corpora- tion for damages for alleged misconduct as such officers, no conspiracy or concerted action among them being al- leged, was held removable by some of these officers. 40 37 East Tennessee, V. & G. R. Co. v. Grayson, 119 U. S. 240, 7 Sup. Ct 190, 30 L. Ed. 382 ; Wilson v. Oswego Tp., 151 U. S. 56, 14 Sup. Ct. 259, 38 L. Ed. 70; Merchants' Cotton Press & Storage Co. v. In- surance Co. of N. A., 151 U. S. 368, 14 Sup. Ct. 367, 38 L. Ed. 195. See "Removal of Causes," Dec. Dig. (Key-No.) 57; Cent. Dig. 109. ss Geer v. Mathieson Alkali Works, 190 U. S. 428, 23 Sup. Ct. 807, 47 L. Ed. 1122. Also in a foreclosure suit, an attack by mortgagor and mortgagee on the validity of a prior mortgage is removable by the prior mortgagee. Fritzlen v. Boatmen's Bank. 212 U. S. 364, 29 Sup. Ct. 366, 53 L. Ed. 551. See "Removal of Causes," Dec. Dig. (Key-No.) 48, 53; Cent. Dig. 93, 94, 104. 39 Mecke v. Valleytown Mineral Co., 93 Fed. 697, 35 C. C. A. 151. See, as analogous, Stimson v. United Wrapping Mach. C\>. (C. C.) 156 Fed. 298. See "Removal of Causes," Dec. Dig. (Key-No.) 50; Cent. Dig. 100. *o Toutsey v. Hoffman (C. C.) 108 Fed. 693. See "Removal of Causes," Dec. Dig. (Key-No.) 49; Cent. Dig. 95-99. 336 DISTRICT COURT JURISDICTION BY REMOVAL (Ch. 15 A suit against two defendants in tort on entirely discon- nected grounds was held to be removable. 41 A suit by a stockholder against his corporation and a second corporation, attacking the management of the first corporation by the second, was held removable by the sec- ond, as the cause of action asserted was one in which the stockholder and his own corporation were practically, in- terested alike, and against the second. 42 A bill to quiet title against several defendants not claim- ing through any common source was held removable by some of these defendants. 43 On the other hand, in Little v. Giles 44 a suit to quiet title, which alleged that the defendants were conspirators in their efforts to cloud the title, was held not to be a sep- arable controversy. The parties entitled to remove on the ground of a separa- rable controversy are, in the language of the statute, either one or more of the defendants actually interested. 45 Does This Apply to Resident Defendants? There is a difference of decision on the question whether this right of removal under the separable controversy clause is conferred on any defendants, or simply on non- resident defendants. On the one hand, it is urged that the reason for giving the removal is the same as in any other case where it is limited to nonresidents, and that this must have been the policy of Congress. On the other hand, it 41 Coker v. Monaghan Mills (C. C.) 110 Fed. 803. See "Removal of Causes," Dec. Dig. (Key-No.) 50; Cent. Dig. 100. 42 Lamm v. Parrott Silver & Copper Co. (C. C.) Ill Fed. 241. See "Removal of Causes," Dec. Dig. (Key-No.) 48; Cent. Dig. 93, 94. 43 Carothers v. McKinley Mining & Smelting Co. (C. C.) 116 Fed. 947; McMullen v. Halleck Cattle Co. (C. C.) 193 Fed. 282. See "Re- moval of Causes," Dec. Dig. (Key-No.) 52; Cent. Dig. 102-105. 44 118 TJ. S. 596, 7 Sup. Ct. 32, 30 L. Ed. 269. See "Removal of Causes," Dec. Dig. (Key-No.) 52, 55; Cent. Dig. 102-105. 4o Rand v. Walker, 117 U. S. 340, 6 Sup. Ct. 769, 29 L. Ed. 907. See "Removal of Causes," Dec. Dig. (Key-No.) 59; Cent. Dig. 112, 113. 120) SEPARABLE CONTROVERSIES 337 is urged that the language of the statute does not limit the right to nonresident defendants. 46 A careful perusal of the statute would seem to indicate that the authorities holding any defendant, whether resi- dent or not, entitled to remove, best accord with its lan- guage. Where the language of the statute itself is plain, it is unnecessary to resort to rules of construction or pol- icy. A legislature is presumed to have said what it meant, and to have meant what it said. When this entire section is examined, it is to be observed that the first section, which gives the right of removal in federal questions, confers it upon the defendant or defendants whether they are resident or not. Then the second section, which gives the right of removal on the ground of citizenship, gives the right only to the defendant or defendants who are nonresidents. Then comes the third clause, which is the one under discussion, and which simply speaks o-f the defendants, and says noth- ing about their residence. Then the fourth clause, conferring the right in cases of prejudice or local influence, limits it to the defendant who is a citizen of another state. Congress, in thus varying" the language in these different sentences of the same section, must be presumed to have done so- intentionally ; and it is beyond the purview of the courts to read into its act a sen- tence that it has deliberately inserted in one place and omit- ted in another. In the judgment of the author, therefore, the defendant, whether resident or not, ought to have the right of removal on this ground. The effect of the removal of a separable controversy is to take with it not simply that controversy, but the entire suit. It was not the intent of Congress to split a suit up into different parts, and leave it to be considered by different courts; and the express language of the act is that when 4 Stanbrough v. Cook (C. C.) 38 Fed. 369, 3 L. R. A. 400; Thurber v. Miller, 67 Fed. 371, 14 C. C. A. 432. See "Removal of Causes," Dec. Dig. (Key-No.) 60; Cent. Dig. 114. HUGHES FED.PK.(2o ED.) 22 338 DISTRICT COURT JURISDICTION BY REMOVAL (Ch. 15 a controversy exists in a suit, and that is removed, the suit itself goes with it. 47 And this is true though the effect may be to take into the federal court, along with this separable controversy, other grounds of action of which the court would not have had jurisdiction, had they been brought in the federal court independently. 48 REMOVAL ON GROUND OF PREJUDICE OR LO- CAL INFLUENCE 121. This ground entitles the nonresident defendant to re- move, but only on proof of the existence of such prejudice or local influence. The fourth sentence of section 28 of the Judicial Code provides as follows : "And where a suit is now pending, or may be hereafter brought, in any state court, in which there is a controversy between a citizen of the state in which the suit is brought and a citizen of another state, any defend- ant, being such citizen of another state, may remove such suit into the district court of the United States for the proper district, at any time before the trial thereof, when it shall be made to appear to said district court that from prejudice or local influence he will not be able to obtain justice in such state court, or in any other state court to which the said defendant may, under the laws of the state, have the right, on account of such prejudice or local in- fluence, to remove said cause : Provided, that if it further appear that said suit can be fully and justly determined as to the other defendants in the state court, without being *7 BARNEY v. LATHAM, 103 U. S. 205, 26 L. Ed. 514 ; Connell v. Smiley, 156 U. S. 335, 15 Sup. Ct. 353, 39 L. Ed. 443. See "Removal of Causes," Dec. Dig. (Key-No.) 58; Cent. Dig. 110. 48 Hoge v. Canton Insurance Office of Hong Kong (C. C.) 103 Fed. 513. See "Removal of Causes," Dec. Dig. (Key-No.) 58; Cent. Dig. 121) PBEJUDICE OB LOCAL INFLUENCE 339 affected by such prejudice or local influence, and that no party to the suit will be prejudiced by a separation of the parties, said district court may direct the suit to be re- manded, so far as relates to such other defendants, to the state court, to be proceeded with therein." This provision of the Judicial Code repeals the previous acts on the subject, as the act of August 13, 1888, had been held to supersede the acts which preceded it. 49 The language of this sentence is quite different from those of the three preceding sentences. The first limits the removal of cases on the ground of a federal question to those of which the district courts are given original juris- diction by the preceding section. The second, regulating the removal of entire controversies on the ground of citi- zenship, also applies only to those cases of which the dis- trict courts are given jurisdiction by the preceding section. The third, authorizing removal on the ground of a separa- ble controversy, limits such right to "any suit mentioned in this section," which amounts to the same thing. The fourth contains no such qualifying clause, and, independent of authority, it may be questioned whether this qualifica- tion was intended to be inserted. However, the Supreme Court, in Re Pennsylvania Co., 50 in which the question in- volved was whether the two thousand dollar limit applied to causes removed on the ground of prejudice or local in- fluence, construing the acts preceding the Code, held that it was the intention of Congress to limit these causes, also, to those of which the court would have had original juris- diction. The court construed the first part of the sentence, "where a suit is now pending" to be equivalent to the words "and when in any suit mentioned in this section." The re- 49 risk v. Henarie, 142 U. S. 459, 12 Sup. Ct. 207, 35 L. Ed. 1080; Hanrick v. Hanrick, 153 U. S. 192, 14 Sup. Ct. 835, 38 L. Ed. 685. See "Removal of Causes," Dec. Dig. (Key-No.) 2; Cent. Dig. 2, S. 50 137 U. S. 451, 11 Sup. Ct 141, 34 L. Ed. 738. See "Removal of Causes," Dec. Dig. (Key-\o.) 11; Cent. Dig. 29-31. 340 DISTRICT COURT JURISDICTION BY REMOVAL (Ch. 15 enactment of them in the Judicial Code indicates the inten- tion of Congress to adopt this construction. The Parties The controversy removable under the language of the statute is "a controversy between a citizen of the state in which the suit is brought and a citizen of another state." Hence controversies between citizens and aliens are not re- movable on this ground. 51 In reference to the parties plaintiff, the word is used col- lectively, and under the principles established in other cases of jurisdiction, the plaintiffs, where there are more than one, must be citizens of the state where the suit is brought. 52 Whether all the plaintiffs and all the defendants must be different in citizenship is a question on which there was a violent conflict of authority. Under the removal acts pre- vious to the present, this was necessary. 53 But the language of the present section is that "any de- fendant" may remove the case. Influenced by this lan- guage, there is a line of authorities to the effect that any defendant who is a citizen of another state from that in which the suit is brought can remove it, though there are other defendants whose citizenship is the same as that of the plaintiff. 54 On the other hand, there are authorities which hold that the controversy itself must be one in which all the plain- tiffs are of a different citizenship from all of the defendants, si Grand Trunk R. Co. v. Twitchell, 59 Fed. 727, 8 C. C. A. 237. See "Removal of Causes," Dec. Dig. (Key-No.) 67; Cent. Dig. 120-12^. 52 Gann v. Northeastern R. Co. (C. C.) 57 Fed. 417. See "Removal of Causes," Dec. Dig. (Key-No.) 67; Cent. Dig. 120. 53 Rosenthal v. Coates, 148 U. S. 142, 13 Sup. Ct. 576, 37 L. Ed. 399. See "Removal of Causes," Dec. Dig. (Key-No.) 68; Cent. Dig. 122, 123. S* Montgomery County v. Cochran (C. C.) 116 Fed. 985 ; Jackson & Sharp Co. v. Pearson (C. C.) 60 Fed. 113 ; Bonnet v. Meikle (C. C.) 77 Fed. 485. See "Removal of Causes," Dec. Dig. (Key-No.) 68; Cent. Dig. 122, 123. 121) PREJUDICE OR LOCAL INFLUENCE 341 and that, if the controversy is of that character, then any nonresident defendant may remove. 55 The question has recently been set at rest by the Su- preme Court, which holds that removals on the ground of local prejudice must, like those under the rest of the sec- tion, be suits originally cognizable in the district court, and are governed by the same principles as to parties. 56 Conditions on Which Removal is Allowed Procedure The statute gives the right of removal when it shall be made to appear to said district court that from prejudice or local influence he will not be able to obtain justice in such state court or in any other state court to which he is en- titled to remove the case. There is nothing in the statute to show how this must be made to appear.- The better authority is that a petition should be filed in the federal court alleging not merely the petitioner's belief or the bare statement of prejudice or local influence, but setting out such facts as would show it. 57 It then becomes a question for the district court whether to require proof, and what kind of proof should be required. The court must be not morally, but legally satisfied of the existence of such prejudice or local influence; and it may, in its discretion, allow proof of such fact by affidavit. 68 On this petition in the federal court an order is obtained 66 Campbell v. Milliken (C. C.) 119 Fed. 982. See "Removal of Causes," Dec. Dig. (Key-No.) 68; Cent. Dig. 122, 123. 60 Cochran v. Montgomery County, 199 U. S. 260, 26 Sup. Ct 58, 50 L. Ed. 182, 4 Ann. Cas. 451, reversing Montgomery County v. Cochran (C. C.) 116 Fed. 985, and following the reasoning of In re Pennsylvania Co., 137 U. S. 451, 11 Sup. Ct. 141, 34 L. Ed. 738. See, also, Armstrong v. Kansas City Southern R. Co. (C. C.) 192 Fed. 608. See "Removal of Causes," Dec. Dig. (Key-No.) 68; Cent. Dig. 122, 123. 6? Schwenk & Co. v. Strang, 59 Fed. 209, 8 C. C. A. 92; Collins v. Campbell (C. C.) 62 Fed. 850; Ellison v. Louisville & N. R. Co., 112 Fed. 805, 50 C. C. A. 530. See "Removal of Causes," Dec. Dig. (Key- No.) 91; Cent. Dig. 202. 68 City of Detroit v. Detroit City R. Co. (C. C.) 54 Fed, 1 ; In re 342 DISTRICT COURT JURISDICTION BY REMOVAL (Ch. 15 to remove the case, which order should be filed in the state court. 59 Then, if the plaintiff desires to contest the question of prejudice or local influence, he can do so by a motion to re- mand to the state court, on which the court will hear such evidence as it may think material. 60 The present statute differs from the original act in re- quiring proof not merely that the defendant cannot obtain justice in the state where the suit is pending, but in any other state court to which he has the right to remove it. This qualifying clause, however, only applies where the plaintiff has the right to such change of venue in the state court, not where it is discretionary with the state court whether to allow the change of venue or not. 61 The statute seems to draw a distinction between preju- dice and local influence, and to allow removal for either of these two causes. 62 It does not mean that the petitioner must prove, as an actual fact, that he cannot obtain justice. Such a require- ment would practically make the law a dead letter. He need only prove the existence of such prejudice or local in- fluence, not that the court or jury was actually affected by it. 63 Proof that a decision in favor of the petitioner would af- fect the judge's chances of re-election has been held suffi- Pennsylvania Co., 137 U. S. 451, 11 Sup. Ct. 141, 34 L. Ed. 738. See "Removal of Causes," Dec. Dig. (Key-No.) 91; Cent. Dig. 202. so Pennsylvania Co. v. Bender, 148 U. S. 255, 13 Sup. Ct. 591, 37 L. Ed. 441. See "Removal of Causes," Dec. Dig. (Key-No.) 90, 91; Cent. Dig. 202. eo Dennison v. Brown (C. C.) 38 Fed. 535; Amy v. Manning (C. C.) 38 Fed. 868. See "Removal of Causes," Dec. Dig. (Key-No.) 63, 107; Cent. Dig. 117, 178, 225-234. 61 Rike v. Floyd (C. C.) 42 Fed. 247; City of Tacoma v. Wright (C. C.) 84 Fed. 836; Parker v. Vanderbilt (C. C.) 136 Fed. 246. See "Removal of Causes," Dec. Dig. (Key-No.) 91; Cent. Dig. 202. 62 Neale v. Foster (C. C.) 31 Fed. 53. See "Removal of Causes," Dec. Dig. (Key-No.) 3; Cent. Dig. 117. es City of Tacoma v. Wright (C. C.) 84 Fed. 836. See "Removal of Causes," Dec. Dig. (Key-No.) 62, 63; Cent. Dig. 116, 117. 122) STATE DENIAL OF EQUAL CIVIL RIGHTS 343 cient, and it applies whether the case is triable by a judge or a jury. 64 The existence of such prejudice or local influence is enough to justify the removal, whether such feeling was, as a matter of fact, justified, under the circumstances, or not. 88 REMOVAL BECAUSE OF STATE DENIAL OF EQUAL CIVIL RIGHTS 122. The denial of civil rights by state legislative authority gives the right of removal to the party so injured. Section 31 of the Judicial Code provides as follows: "When any civil suit or criminal prosecution is commenced in any state court, for any cause whatsoever, against any person who is denied or cannot enforce in the judicial tri- bunals of the state, or in the part of the state where such suit or prosecution is pending, any right secured to him by any law providing for the equal civil rights of citizens of the United States, or of all persons within the jurisdiction of the United States, or against any officer, civil or mili- tary, or other person, for any arrest or imprisonment or other trespasses or wrongs made or committed by virtue of or under color of authority derived from any law pro- viding for equal rights as aforesaid, or for refusing to do any act on the ground that it would be inconsistent with such law, such suit or prosecution may, upon the petition of such defendant, filed in said state court at any time be- fore the trial or final hearing of the cause, stating the facts 4 City of Detroit v. Detroit City R. Co. (C. C.) 54 Fed. 1 ; Mont- gomery County v. Cochran (C. C.) 116 Fed. 985 (reversed on the juris- dictional question Cochran v. Montgomery County, 199 U. S. 260, 26 Sup. Ct 58, 50 L. Ed. 182, 4 Ann. Gas. 451). See "Removal of Caus- es," Dec. Dig. (Key-No.) 62, 63; Cent. Dig. 116, 117. B Bartlett v. Gates (C. C.) 117 Fed. 362. See "Removal of Caw- es," Dec. Dig. (Key-No.) 62, 6S; Cent. Dig. 116, 117. 344 DISTRICT COURT JURISDICTION BY REMOVAL (Ch. 15 and verified by oath, be removed for trial into the next district court to be held in the district where it is pend- ing. * * *" The primary object of this provision was the protection of the colored race in the civil rights conferred upon them as a consequence of the Civil War. In its language, how- ever, it is ample to cover any deprivation of equal civil rights, and is by no means limited to the colored race. The main rights which it is intended to cover, however, are those rights conferred by the fourteenth amendment, and the acts of Congress passed in pursuance thereof. The right to authorize removal from a state court by virtue of this statute is within the constitutional power of Con- gress. 66 The essential principle to bear in mind under this section is that it alludes to state legislation, not to the mere prac- tice or administration by state officers or courts of state laws which show no intent to discriminate upon their face. This has been repeatedly decided by the Supreme Court. Strauder v. West Virginia 67 was a criminal prosecution against a colored man, removed by him under this act be- cause the West Virginia statute provided upon its face that only white persons should be summoned as jurors. The court upheld the right of removal. On the other hand, Virginia v. Rives 68 was a prosecu- tion in a Virginia state court against a negro for murder. The Virginia laws regulating the summoning of jurors did not contain any provision limiting them to the white race, but it was charged that the uniform practice of the state ee Strauder v. West Virginia, 100 U. S. 303, 25 L. Ed. 664. See "Removal of Causes," Dec. Dig. (Key-No.) 2; Cent. Dig. 3. 67 100 U. S. 303, 25 L. Ed. 664. Bee "Removal of Causes," Dec. Dig. (Key-No.) 70; Cent. Dig. 127;- "Criminal Law," Cent. Dig. 198. es 100 U. S. 313, 25 L. Ed. 667. See, also, Kentucky v. Powers, 201 U. S. 1, 26 Sup. Ct. 387, 50 L. Ed. 633, 5 Ann. Cas. 692, which con- tains a thorough review of the authorities. See "Removal of Caus- es" Dec. Dig. (Key-No.) 70; Cent. Dig. 127. 122) STATE DENIAL OF EQUAL CIVIL BIGHTS 345 officers was to summon only white men upon the jury. The Supreme Court denied the right of removal in such case, because the discrimination was not by the state in its legislation, but by the officers of the state in their prac- tice under it. If the state legislation charged to bring about the dis- crimination is in form a dead letter, then the right of re- moval does not exist. In Neal v. Delaware 69 the Delaware Constitution of 1831, limiting the summoning of jurors to white persons, was still in force, but the Delaware courts had held that the amendments to the federal Constitution adopted after the war practically amended their state Con- stitution, also, although there had never been a state con- vention formally amending it. The Supreme Court held in such case that the right of removal did not exist. In Bush v. Kentucky 70 the state act which attempted to discriminate in the summoning of jurors had been held by such court to be unconstitutional, but had never been for- mally repealed. The Supreme Court held that a petition to remove as to acts after the decision of the state Supreme court holding the law invalid could not be sustained. Under this principle that the right is given only against state legislation, and not against the mere administration of the state law, there is no ground of removal under this act from the fact, even if proved, that there exists a per- sonal or class prejudice against the obnoxious race. Such a case is not provided for where the parties are citizens of the same state. 71 The fact that the state is suing in its own courts does not create any such inequality or denial of equal protection e 103 IT. S. 370, 26 L. Ed. 567. See "Removal of Causes," Dec. Dig. (Key-No.) 10; Cent. Dig. 127. 70107 U. S. 110, 1 Sup. Ct. 625, 27 L. Ed. 354. See "Removal of Causes," Dec. Dig. (Key-No.) 70; Cent. Dig. 127. 7i Gibson v. Mississippi, 162 U. S. 565, 16 Sup. Ct 904, 40 L. Ed. 1075 ; Texas v. Gaines, Fed. Cas. No. 13,847. See "Removal of Caus- es," Dec. Dig. (Key-No.) 70; Cent. Dig. 127. 346 DISTRICT COURT JURISDICTION BY REMOVAL (Ch. 15 of its laws as to authorize the right of removal under this act. 72 People of New York v. Bennett 73 reviews the decisions on this subject. It held that the New York statute of 1895 against bookmaking and pool selling in connection with horse racing did not constitute a denial of the equal protection of the laws, from the fact that it made things offenses if committed at one place, when they would not be if committed at another. REMOVAL OF SUITS AGAINST OFFICERS OR PERSONS ENFORCING THE INTERNAL REVENUE LAWS 123. Suits in state courts, whether civil or criminal, against officers or others acting under federal authority in enforcing the revenue laws, are removable by them. The first part of section 33 of the Judicial Code T4 pro- vides as follows : "When any civil suit or criminal prose- cution is commenced in any court of a state against any officer appointed under or acting by authority of any rev- enue law of the United States now or hereafter enacted, or against any person acting under or by authority of any such officer, on account of any act done under color of his office or of any such law, or on account of any right, title, or authority claimed by such officer or other person under any such law; or is commenced against any person holding property or estate by title derived from any such officer, 72 State of Alabama v. Wolff e (C. C.) 18 Fed. 836. See "Removal of Causes," Dec. Dig. (Key-No.) 70; Cent. Dig. 127. 73 (C. C.) 113 Fed. 515. See "Removal of Causes," Dec. Dig. (Key- No.) 70; Cent. Dig. 127; "Criminal Law," Cent. Dig. 198. 74 Act March 3, c. 231, 36 Stat. 1097 (U. S. Comp. St Supp. 1911, p. 144). 123) ENFORCEMENT OF INTERNAL REVENUE LAWS 347 and affects the validity of any such revenue law; or when any suit is commenced against any person for or on ac- count of anything done by him while an officer of either house of Congress in the discharge of his official duty, in executing any order of such house, the said suit or prose- cution may, at any time before the trial or final hearing thereof, be removed for trial into the district court next to be holden in the district where the same is pending, up- on the petition of such defendant to said district court." The object of this statute is to protect federal officers in performing their duties under the revenue laws against suits in state courts, civil or criminal, on account of acts done while acting in that capacity. This provision is con- stitutional. 76 It applies to suits commenced in a state court. When the proceeding is a criminal proceeding in which an indict- ment is necessary, it is not supposed to be commenced until an indictment has been found by the grand jury of the state. A preliminary examination before a magistrate un- der such circumstances cannot be removed, because it may be that, when sent on to the grand jury, an indictment would not be found, and it could not have been the intent of Congress to place on the federal grand juries the burden of finding indictments under state laws. 76 There are, however, many cases which can be commenced without any indictment at all. For instance, under the criminal laws of Virginia, magistrates have original juris- diction of a large class of misdemeanors, and try them as a court of original jurisdiction, not as a mere examining court. A prosecution of this sort against a federal officer for acts contemplated by the section above quoted is re- TB Tennessee v. Davis, 100 TL S. 257, 25 L. Ed. 648. See "Removal of Causes," Dec. Dig. (Key-No.) 2; Cent. Dig. 3. i Virginia v. Paul, 148 U. S. 107, 13 Sup. Ct. 536, 37 L. Ed. 386. See "Removal of Causes," Dec. Dig. (Key-No.) 21, 22; Cent. Dig. 50. 348 DISTRICT COURT JURISDICTION BY REMOVAL (Ch. 15 movable, though the magistrate's court may not be a court of record. 77 The prosecutions removable from the state court are for acts as an officer of the United States in administering the revenue laws. 78 It includes not only regular officers like marshals or dep- uty marshals, but soldiers of the army detailed to assist, or men summoned as a posse for the same purpose. 79 It includes not only criminal prosecutions, but civil suits against federal officers to hold them liable for their acts as such in connection with the revenue laws. For instance, a suit is removable from the state court which sought to re- cover back taxes from a collector of internal revenue on the ground that they had been illegally assessed by him. 8<> It includes an action by a railroad company against a collector of customs for freight collected by his deputy from the consignees of goods passing through the custom- house, and in -such case the federal court has jurisdiction to decide whether the collector is liable for the acts of his deputy under such circumstances. 81 Suits in connection with those portions of the postal laws which look to the raising of revenue are removable. This would not include suits in connection _with the money-order 77 Commonwealth of Virginia v. Bingham (C. C.) 88 Fed. 561. See "Removal of Causes," Dec. Dig. (Key-No.) 21, 22; Cent. Dig. 50. 78 Tennessee v. Davis, 100 U. S. 257, 25 L. Ed. 648. Hence a suit against a federal officer acting under the reclamation act of June 17, 1902 (32 Stat. 388), is not removable, as it is not a revenue law. Twin Falls Canal Co. v. Foote (C. C.) 192 Fed. 583. See "Removal of Causes," Dec. Dig. (Key-No.) 21, 22; Cent. Dig. % 50. 7e Commonwealth of Virginia v. De Hart (C. C.) 119 Fed. 626; Da- vis v. South Carolina, 107 U. S. 597, 2 Sup. Ct. 636, 27 L. Ed. 574. See "Removal of Causes," Dec. Dig. (Key-No.) 21, 22; Cent. Dig. 50. so Venable v. Richards, 105 U. S. 636, 26 L. Ed. 1196. See "Re- moval of Causes," Dec. Dig. (Key-No.) 21, 22; Cent. Dig. 50. si Cleveland, C., C. & I. B. Co. v. McClung, 119 U. S. 454, 7 Sup. Ct. 262, 30 L. Ed. 465. See "Removal of Causes," Dec. Dig. (Key-No.)' 21, 22; Cent. Dig. 50. 123) ENFORCEMENT OF INTERNAL REVENUE LAWS 349 system, as that was not intended by Congress to be a means of raising revenue, but as a mere convenience. 82 The suits in connection with those parts of the postal laws relating to the raising of revenue under them are re- movable. 83 And a suit in a state court against contractors charged with the duty of building a government post office, and in connection with other acts as such contractors, is remov- able. 84 The statute, however, does not authorize the removal of a suit against a United States commissioner to recover fees illegally exacted by him. 85 Nor prosecutions in a state court for violation of the state liquor laws, though the accused may hold a federal liquor license. A license of this sort is not a license to vio- late state laws. 86 The removal under this act is effectual when the federal court, by the process more fully set out in the statute, noti- fies the state court of the fact of removal. 87 The effect of removing such a case is rather anomalous. The federal court tries the action as a prosecution under the laws of the state, and follows the construction of the sa U. S. v. Norton, 91 IT. S. 566, 23 L. Ed. 454. See "Removal of Causes," Dec. Dig. (Key-No.) 21, 22; Cent. Dig. 49-51. s s Warner v. Fowler, Fed. Cas. No. 17,182; U. S. v. Bromley, 12 How. 88, 13 L. Ed. 905. See, as illustrating the principle, Bryant Bros. Co. v. Robinson, 149 Fed. 321, 79 C. C. A. 259 ; Lewis Pub. Co. v. Wyman (C. C.) 152 Fed. 200; People's U. S. Bank v. Goodwin (C. C.) 162 Fed. 937. See "Removal of Causes," Dec. Dig. (Key-No.) 21, 22; Cent. Dig. 49-31. s* Ward v. Congress Construction Co., 99 Fed. 598, 39 C. C. A. 669. See "Removal of Causes," Dec. Dig. (Key-No.) 21, 22; Cent. Dig. 50. sBBenchley v. Gilbert, Fed. Cas. No. 1,291. See "Removal of Causes," Dec. Dig. (Key-No.) 21, 22; Cent. Dig. 50. 8 Com. v. Casey, 12 Allen (Mass.) 214. See "Removal of Causes," Dec. Dig. (Key-No.) 21, 22; Cent. Dig.- 50. 87 Virginia v. Paul, 148 U. S. 107, 13 Sup. Ct 536, 37 L. Ed. 386. See "Removal of Causes," Dec. Dig. (Key-No.) 95; Cent. Dig. 204, 205. 350 DISTRICT COURT JURISDICTION BY REMOVAL (Ch. 15 state law by the state court. If it is a prosecution in a state court for murder, then the question what constitutes murder or homicide is to be settled by the law of the state against whose sovereignty the act, if an offense at all, is an offense. 88 In such case the prosecution in the federal court is con- ducted by the state prosecuting officers, and the federal prosecuting officers, if they take part at all, defend the ac- cused, as he is setting up a defense under the federal law. 8 * ss State of North Carolina v. Gosnell (C. C.) 74 Fed. 734. See "Courts," Dec. Dig. (Key-No.) 337, 359; Cent. Dig. 908, 941. 8 State of Delaware v. Emerson (C. C.) 8 Fed. 411. See "Removal of Causes," Dec. Dig. (Key-No.) 70; Cent. Dig. 127; "Criminal Law," Cent. Dig. 198. 124) DISTRICT COURT JURISDICTION BY REMOVAL 351 CHAPTER XVI THE DISTRICT COURT (Concluded) JURISDICTION BY RE- MOVAL (Concluded) 124. Steps to Secure and Effect Removal In General. 125. Form of Petition in General. 126. Place to File Petition. 127. Proper Averments in the Petition. 128. The Removal Bond. 129. Time of Filing Petition. 130. Steps at Filing of Petition. 131. Filing and Subsequent Procedure in Federal Court. 132. Motion to Remand. STEPS TO SECURE AND EFFECT REMOVAL IN GENERAL 124. The method of removing a cause is to file a petition in the state court showing on its face a removable case, accompanied by a proper bond. An ordet should then be obtained from the state court ac- cepting the bond. A transcript of the record must be filed afterwards in the federal court. The re- fusal of the state court to enter such order does not defeat the right of removal. Section 29 of the Judicial Code provides as follows: "Whenever any party entitled to remove any suit men- tioned in the last preceding section, except suits remov- able on the ground of prejudice or local influence, may de- sire to remove such suit from a state court to the district court of the United States, he may make and file a petition, duly verified, in such suit in such state court at the time, or any time before the defendant is required by the laws of the state or the rule of the state court in which such suit is brought to answer or plead to the declaration or 352 DISTRICT COURT JURISDICTION BY REMOVAL (Ch. 16 complaint of the plaintiff, for the removal of such suit in- to the district court to be held in the district where such suit is pending, and shall make and file therewith a bond, with good and sufficient surety, for his or their entering in such district court, within thirty days from the date of filing said petition, a certified copy of the record in such suit, and for paying all costs that may be awarded by the said district court if said district court shall hold that such suit was wrongfully or improperly removed thereto, and also for their appearing and entering special bail in such suit if special bail was originally requisite therein. It shall then be the duty of the state court to accept said petition and bond and proceed no further in such suit. Written notice of said petition and bond for removal shall be given the adverse party or parties prior to filing the same. The said copy being entered within said thirty days as afore- said in said district court of the United States, the parties so removing the said cause shall, within thirty days there- after, plead, answer, or demur to the declaration or com- plaint in said cause, and the cause shall then proceed in the same manner as if it had been originally commenced in the said district court." Under this provision the only method of removal is by petition, and the necessity for filing a petition is jurisdic- tional. The case cannot be removed by consent, nor can a petition be waived by consent. 1 i Hegler v. Faulkner, 127 U. S. 482, 8 Sup. Ct. 1203, 32 L. Ed. 210; First Nat. Bank v. Prager, 91 Fed. 689, 34 C. C. A. 51. See "Removal of Causes," Dec. Dig. (Key-No.) 86, 89; Cent. Dig. 132, 166-179. 125) FOBM OF PETITION IN GENEBAL 353 FOR** OF PETITION IN GENERAL 125. The petition must allege all necessary jurisdictional facts, and such facts must be alleged as existing both at the date of commencing the suit in the state court and at the date of filing the petition. A petition which does not make this allegation is defective. 2 There is some conflict of authority on the question whether the petition must aver the necessary facts positively, or whether an averment on informa- tion and belief is sufficient. In Wolff v. Archibald 3 it was decided that the averment of jurisdictional facts must be positive. On the other hand, in Carlisle v. Sunset Telephone & Telegraph Co., 4 it was held that as the petitioner could not, in the nature of things, know the necessary facts positively of his own knowledge, an averment on information and belief was suf- ficient. This latter view seems to the author the more reasonable and correct one. Under the former acts the petition was not required to be under oath, with some exceptions. But the present act requires it to be "duly verified." This will hardly be con- strued to mean the personal oath of the petitioner, being apparently intended somewhat as a pledge of good faith which counsel or local agents can give. In view of the short time allowed, it would often be difficult to secure the personal affidavit of a nonresident in time. 2 Mattlngly v. Northwestern Virginia R. Co., 158 U. S. 53, 15 Sup. Ct 725, 39 L. Ed. 894 ; Dalton v. Milwaukee Mechanics' Ins. Co. (C. C.) 118 Fed. 936; Stevens v. Nichols, 130 U. S. 230, 9 Sup. Ct 518, 32 L. Ed. 914. See "Removal of Causes," Dec. Dig. (Key-No.) 86; Cent. Dig. 182, 166-179. s (C. C.) 14 Fed. 369. See "Removal of Causes," Dec. Dig. (Key- A'o.) 86; Cent. Dig. 132, 166-179. * (C. C.) 116 Fed. 896. See, also, Holton v. Helvetia-Swiss Fire HUGHES FED.PB.(2o ED.) 23 354 DISTRICT COURT JURISDICTION BY REMOVAL (Ch. 16 Signature by Counsel The petition need not be signed by the petitioner him- self, but may be signed by his counsel. 6 How far Record may Supplement Defective Petition It has been stated above that the petition must show all the necessary jurisdictional facts. As a matter of good pleading, this should always be done, independent of the remainder of the record, as the court should be entitled to have the petitioner's case clearly and consecutively pre- sented in a single paper without being put to the trouble of searching through the record. At the same time it is the result of the decisions that, though the petition itself may be defective in jurisdictional facts, yet if those facts appear from other parts of the record the case is removable. In Reed v. Hardeman Co. 6 the petition averred that the amount involved was over $500, but the declaration showed that it was over $25,000. The court held that the case was removable under the act of August 13, 1888, though the averment of the petition itself did not show the necessary jurisdictional amount. In National S. S. Co. v. Tugman 7 a petition was defec- tive in not showing the alienage of one of the parties ; but other parts of the record showed it, and the court held that the case was removable. Ins. Co. of St. Gall, Switzerland (C. C.) 163 Fed. 659. See "Removal of Causes," Dec. Dig. (Key-No.) 86; Cent. Dig. 132, 166-119. 5 Dennis v. Alachua Co., Fed. Cas. No. 3,791 ; Removal Cases, 100 TJ. S. 457, 25 L. Ed. 593. See "Removal of Causes," Dec. Dig. (Key- No.) 86; Cent. Dig. 166-179. e 77 Tex. 165, 13 S. W. 1024. See "Removal of Causes," Dec. Dig. 'Key-No.) 86; Cent. Dig. 132, 115. 7 106 U. S. 118, 1 Sup. Ct 58, 27 L. Ed. 87. See, also, Denny v. Pironi, 141 U. S. 121, 11 Sup. Ct. 966, 35 L. Ed. 657; Powers v. Chesapeake & O. R. Co., 169 U. S. 92, 101, 18 Sup. Ct. 264, 42 L. Ed. 673; Kyle v. Chicago, R. I. & P. R. Co. (C. C.) 173 Fed. 238. See "Removal of Causes" Dec. Dig. (Key-No.) 86; Cent. Dig. 166- 119. 125) FORM OF PETITION IN GENERAL 355 How far Petition Amendable This must be considered, first, as to the power of the state court to allow an amendment before the order of re- moval is entered, and, second, as to the power of the fed- eral court after the transcript has been filed in the latter court. As to the state courts, an amendment can certainly be allowed at any time before the lapse of the time prescribed by law within which the petition must be filed. 8 It has also been held that the state court can allow the amendment of a petition even after the time within which the petition must be filed. 9 On principle, there is no reason why a state court can- not allow an amendment at any time before it has entered the order of removal. If the case is a removable case, and the defect is merely in stating such facts, the party ought not to be deprived of his statutory right to remove by the omission of a statement of fact which existed at the time the petition was filed, although not set out in the petition. The extent of the right to amend the petition for remov- al after it is filed in the federal court is not clear. Many cases hold that an entire failure to aver a removable case cannot be corrected by amendment, because, unless the pe- tition shows a jurisdictional case, the state court has never lost its jurisdiction, and it is unfair to that court to try to make a new case in the federal court. Hence they hold that only defects in matters of form can be amended. 10 The question turns largely on how far the Supreme Court meant to go in Kinney v. Columbia Savings & Loan sHardwick v. Kean, 95 Ky. 563, 26 S. W. 589; Security Co. v. Pratt, 65 Conn. 161, 32 Atl. 396. See "Removal of Causes," Dec. Dig. (Key-No.) 94, 107; Cent. Dig. 178. Roberts v. Pacific & A. R. & Nav. Co. (C. C.) 104 Fed. 577. See "Removal of Causes," Dec. Dig. (Key-No.) 94; Cent. Dig. 178. 10 Shane v. Butte Electric R. Co. (C. C.) 150 Fed. 801; Wallen- burg v. Missouri Pac. R. Co. (C. C.) 159 Fed. 217; Santa Clara County v. Goldy Mach. Co. (C. C.) 159 Fed. 750. See "Removal of Causes," Dec. Dig. (Key-No.) 94; Cent. Dig. { 178. 356 DISTRICT COURT JURISDICTION BY REMOVAL (Ch. 16 Ass'n. 11 There the petition contained the general juris- dictional allegation as to citizenship of different states, but did not state this to be the fact at the commencement of the suit as well as at the filing of the petition. The lower court allowed this to be inserted by amendment, and the Supreme Court held that its action was correct, and that such an amendment was allowable. This was the only point directly involved, and the court was careful to limit its decision to "the power of the circuit court to per- mit amendments of pleadings to show diverse citizenship, and of removal proceedings where there is a technical de- fect and there are averments sufficient to show jurisdic- tion." But the opinion also quotes approvingly older de- cisions which allowed an allegation of residence to be changed to one of citizenship; and it has always been held that an allegation of residence was not sufficient to give jurisdiction. But, notwithstanding this, it is the pre- ponderant, and better opinion that a petition which shows no jurisdiction at all and is not helped out by other parts of the record is too defective to amend. PLACE TO FILE PETITION 126. Sections 29, 30 and 31 of the Judicial Code require the petition for removal to be filed in the state court in the following cases: (a) Suits by the United States or any officer thereof. (b) Suits between citizens of the same state claiming under land grants from different states. 11 191 U. S. 78, 24 Sup. Ct 30, 48 L. Ed. 103. See, also, as exam- ples of amendments, Flynn v. Fidelity & Casualty Co. (C. C.) 145 Fed. 265 ; Muller v. Chicago, I. & L. R. Co. (C. C.) 149 Fed. 939 ; Wilbur v. Red Jacket Consol. Coal & Coke Co. (C. C.) 153 Fed. 662 ; De La Montanya v. De La Montanya (D. C.) 158 Fed. 117 ; Kyle v. Chicago, R. I. & P. R. Co., 173 Fed. 238. See "Removal of Causes," Dec. Dig. (Key-No.) 94, 107; Cent. Dig. 178. 127) PROPER AVERMENTS IN THE PETITION 357 (c) Cases turning on federal questions. (d) Cases turning on the citizenship of the parties. (e) Cases turning on the citizenship of the parties and removed as separable controversies. (f) Cases turning on a denial of equal civil rights. Under sections 28 and 33 of the Judicial Code, the peti- tion to remove must be filed in the district court of the United States: (a) When the ground of removal is prejudice or local influence. (b) When it is a suit or prosecution against revenue of- ficers, etc. PROPER AVERMENTS IN THE PETITION 127. A petition for removal under any one of the various classes of removal cases must show in its aver- ments all the necessary facts to entitle the peti- tioner to a removal on the particular ground re- lied on. When the Ground is the Existence of a Federal Question In order to ascertain the proper allegations in such a pe- tition, it is necessary to compare the twenty-fourth section of the Judicial Code regulating the original jurisdiction of the court, with the twenty-eighth section, regulating its jurisdiction by removal. When this comparison is made, it will be seen that the petition ought to show the charac- ter of the suit, so as to show that it is a suit of a civil na- ture, at law or in equity, of which the court would have original jurisdiction, thus excluding proceedings by man- damus and other proceedings which, as shown in a pre- vious connection, cannot be brought originally in the fed- eral courts. The petition then ought to show that the suit arises under the "Constitution and laws of the United States, or treaties made or which shall be made under their 358 DISTRICT COURT JURISDICTION BY REMOVAL (Ch. 16 authority." Prior to the act of August 13, 1888, it was es- sential to show this by the petition, at least in those cases where it did not appear on the plaintiff's pleading, for un- der the prior acts a suit could be removed, as involving such a question, where the question was raised for the first time by the defendant's pleading; but it has been seen that under the present act the plaintiff's pleading must show the existence of a federal question upon its face before the case is removable at all. 12 Hence, while it is better plead- ing, and due the court, to state not merely in general terms that the case arises under the Constitution and laws of the United States, or treaties made or which shall be made under their authority, but also to state exactly what the question is and how it arises; still a failure to do this would not be fatal, because it would necessarily appear on the plaintiff's own pleading, and hence would come under the principle above described, that the petition may be supplemented by other parts of the record. 13 The petition should conclude with the prayer for rerqov- al, and have the bond attached. Averments Necessary When the Application is to Remove the Entire Controversy on the Ground of Citizenship, etc. In this class of cases the form of the petition is neces- sarily more important, for it is the petition which shows that the case is a removable case, and not the other parts of the record. In an ordinary case in a state court it is no part of any system of pleading to set out the citizenship of the parties. Hence the record in this case must be 12 Minnesota v. Northern Securities Co., 194 U. S. 48, 24 Sup. Ct 598, 48 L. Ed. 870. See "Removal of Causes," Dec. Dig. (Key-No.) 86; Cent. Dig. 132, 166-119. is But there are strong decisions to the effect that the petition must not merely aver the existence of a federal question in general terms, but must state facts necessary to show that such a question is involved and how it arose. City of New Castle v. Postal-Tele- graph Cable Co. (C. C.) 152 Fed. 572 ; Rural Home Tel. Co. v. Pow- ers (C. C.) 176 Fed. 986. See "Removal of Causes," Dec. Dig. (Key- No.) 86; Cent. Dig. 132, 166-179. 127) PBOPEB AVEBMENTS IN THE PETITION 359 supplemented by proper averments in the petition itself, and the pleader cannot ordinarily hope to fall back upon the other parts of the record to help him out. The twenty-fourth section of the Judicial Code, regulat- ing jurisdiction, and the twenty-eighth section, regulating removals, must be read together in order to see the neces- sary averments. Reading them together, it will be seen that the petition ought to show the character of the suit, whether at law or in equity, and that it is one of which the district court would have original jurisdiction. It ought to show the amount involved, and the citizenship of each of the parties at the time of the commencement of the suit and at the time of filing the petition. In addition, as only the nonresident defendant can remove, it ought to show the residence or habitation of each party, both plain- tiff and defendant; and, if it is a suit by the assignee, it ought to show the same as to the assignor. But where these facts appear in other parts of the record, in such case an omission to allege these facts would be supplemented by the record. But still the petition ought to collate all these facts for the convenience of the court. 14 It is not sufficient to allege merely that the plaintiffs and defendants are citizens of different states, but the citizenship of each one must be given. 18 Same Corporations These are the general rules as to the drafting of the pe- tition. There are, however, many instances where general allegations are tantamount to the allegations stated to be necessary above. Most of these questions arise in con- nection with the proper averments as to the legal status of corporations. The general principles discussed in ref- i* Hall v. Tevls (C. C.) 177 Fed. 600; Katalla Co. v. Rones, 186 Fed. 30, 108 C. C. A. 132. See "Removal of Causes," Dec. Dig. (Key- No.) 86; Cent. Dig. 132, 166-179. IB Cameron v. Hodges, 127 U. S. 322, 8 Sup. Ct 1154, 32 L. Ed. 132. See "Removal of Causes," Dec. Dig. (Key-No.) 86; Cent. Dig. 166-119. 360 DISTRICT COURT JURISDICTION BY REMOVAL (Ch. 16 erence to the proper allegations in original suits 18 apply to such circumstances. In the case of an alien corporation, for instance, an al- legation that the corporation is organized under the laws of a certain foreign country is, in law, equivalent to the allegation that this was the state of facts both at the com- mencement of the suit and the filing of the petition for removal, for it speaks of the date of creation. 17 The principle that a corporation must not be alleged to be a citizen, and that such an allegation is meaningless, ap- plies as well to removal cases as to original cases. 18 An allegation that the corporation is organized under the laws of a certain state, and has its principal office at a cer- tain place in said state, is a sufficient allegation both of citizenship and residence, 19 though, for safety's sake, an allegation that such was the state of facts both at the com- mencement of the suit and the filing of the petition would be a wise addition. In some cases it has been held that, in making the prop- er allegations as to a corporation, it should be stated not only that it is a citizen of a given state, with its principal office in that state, but also that it is not a citizen of the state where the suit is pending. The reason given for this decision is that a corporation may be a citizen of more than one state, and that this possibility ought to be ex- cluded. 20 On the other hand, it has been held that an allegation ie Ante, p. 248 et seq. IT Continental Wall-Paper Co. v. Lewis Voight & Sons Co. (C. C.) 106 Fed. 550. See "Removal of Causes," Dec. Dig. (Key-No.) 86; Cent. Dig. 166-119. is Dinet v. Delavan (C. C.) 117 Fed. 978. See "Removal of Causes," Deo. Dig. (Key-No.) 86; Cent. Dig. 166-179. i Ante, p. 250. 20 Overman Wheel Co. v. Pope Mfg. Co. (C. C.) 46 Fed. 577. See "Removal of Causes," Dec. Dig. (Key-No.) 86; Cent. Dig. 166- 179. 127) PROPER AVERMENTS IN THE PETITION 361 that it is a corporation of a certain state, with its principal office in that state, is sufficient. 21 It seems to the author that this latter class of authori- ties is best based on reason. A study of the Supreme Court decisions in relation to corporations holding charters or permissive legislation from more than one state will show that a corporation cannot be a citizen of two states. On the contrary, those cases have held that where a cor- poration is chartered simultaneously by two states, and keeps but one set of books, one set of officers, and one organization, still, in contemplation of law, they are two entirely distinct and separate corporations. Hence an averment that a corporation was organized under the laws of a certain state, with its principal office in that state, would be tantamount to the averment that it was the cor- poration which was bringing the suit, and this ought to be sufficient. 22 If this were not true, certainly an allegation to the above effect ought to be sufficient to make a prima facie case, and to put on any party who should question it the onus of denying it. Averment of Residence As to a corporation, an averment that it is organized un- der the laws of a certain state, with its principal office in that state, is equivalent to an averment of residence in that state. 28 21 Myers v. Murray, Nelson & Co. (C. C.) 43 Fed. 695, 11 L. R. A. 216; Shattuck v. North British & Mercantile Ins. Co., 58 Fed. 609, 7 C. C. A. 386; Wilcox & Gibbs Guano Co. v. Phoenix Ins. Co. (C. C.) 60 Fed. 929. See "Removal of Causes," Dec. Dig. (Key-No.) 86; Cent. Dig. 166-179. Nashua & L. R. Corp. v. Boston & L. R. Corp., 136 U. S. 356, 10 Sup. Ct. 1004, 34 L. Ed. 363. See "Courts," Dec. Dig. (Key-No.) 314; Cent. Dig. 860; "Removal of Causes," Dec. Dig. (Key-No.) 86; Cent. Dig. 166-179. 2 s HO ward v. Gold Reefs of Georgia (C. C.) 102 Fed. 657; Baum garten v. Alliance Assur. Co., Limited, of London (C. C.) 153 Fed. 301. See "Removal of Causes," Dec. Dig. (Key-No.) 86; Cent. Dig. 166-179. 362 DISTRICT COURT JURISDICTION BY REMOVAL (Ch. 16 In reference to such an averment as among individuals, it was held in Fife v. Whittell 24 that, as only a nonresident defendant could remove, there must be an express aver- ment in the petition that the defendant is a nonresident, though there is already an express averment that the de- fendant is a citizen and resident of a certain state, different from the one where the suit was instituted. On the other hand, in Zebert v. Hunt 25 it was held that an allegation of citizenship and residence in another state was sufficient to show nonresidence. To the author it seems that it certainly ought to be sufficient. If a suit is brought in the Eastern District of Virginia, and the peti- tion alleges that the defendant is a citizen and resident of the state of New York, it would seem hypercritical in the extreme to require him to go on and allege further that he was not a resident of the state of Virginia. Something might be left for the court to presume. Allegations Necessary in Removals on the Ground of Sepa- rable Controversies As the plaintiff's own petition must show that the plain- tiff's controversy is separable, this allegation is not essen- tial, but should be inserted for the reasons given in pre- vious connections. Hence the petition in such case ought to show the character of suit, the amount, the citizenship of the parties to the controversy, alleged in accordance with the rules given in the last connection, and sufficient to show that the defendant is a nonresident defendant. Of course, as in all other cases, there should be a prayer for removal and a proper bond. 24 (C. C.) 102 Fed. 537. But such an averment would be necessary as to an alien defendant, since an alien may still be a resident. Mayer v. Karaghuesian (C. C.) 169 Fed. 736. See "Removal of Causes," Dec. Dig. (Key-No.) 86; Cent. Dig. 166-179. 25 (C. C.) 108 Fed. 449. See, also, Lawrence v. Southern Pac. Co. (C. C.) 165 Fed. 241 ; Harding v. Standard Oil Co. (C. C.) 182 Fed. 421. See "Removal of Causes," Dec. Dig. (Key-No.) 86; Cent. Dig. 166-119. 127) PBOPEB AVERMENTS IN THE PETITION 363 Allegations When the Ground is Prejudice or Local Influence This petition, as shown above, goes to the United States district court. As there is no record in that court to help out the petition, it must be prepared with special care. It must show the character of the suit, the amount in- volved, the citizenship and residence of both parties as detailed above, and the facts which are claimed to show the existence of prejudice or local influence. A mere allega- tion that such prejudice or local influence exists would not be sufficient, but the petition should set out wherein the prejudice or local influence is supposed to exist. It is a delicate matter for a judge to remove a suit from another court on such a ground, and the petitioner must expect that the first impulse of the federal judge in such case will be a negative, and must make his strongest allegations to meet it. It should be accompanied by affidavits or other proof sufficient to make such a case appear to the court. 20 Removal on Ground of Denial of Civil Rights In this case the amount and citizenship are immaterial. The petition under such circumstances should show the character of the suit or prosecution, show the right denied, and state the facts constituting the denial, and an affidavit is necessary. Removal on Ground of Prosecution of Revenue Officers The petition in this case moist be filed in the federal court, and, as there is no record in this court at the time of its filing, it must necessarily be full. It must show the nature of the suit or prosecution, and have a certificate of an attorney or counselor who appears in the court when the suit or prosecution is commenced, or in the United States court, stating that, as counsel for the petitioner, he has examined the proceedings, and carefully inquired into 2 City of Detroit v. Detroit City R. Co. (C. C.) 54 Fed. 1. See "Removal of Causes," Dec. Dig. (Key-No.) 87; Cent. Dig. 180- 183. 364 DISTRICT COURT JURISDICTION BY REMOVAL (Ch. 16 all the matters set forth in the petition, and believes them to be true. The petition must be verified by affidavit. THE REMOVAL BOND 128. In order to effect a removal, the petitioner is required to file a bond, with proper surety, to insure the transfer on his part of the record in the case to the proper federal court at the proper time, and to cover all costs incident to the removal of the case. Section 29 of the Judicial Code requires, in reference to the main sources of jurisdiction by removal, that with the petition the petitioner shall file a bond, "with good and sufficient surety, for his or their entering in such district court within thirty days from the date of filing said peti- tion a copy of the record in such suit, and for paying all costs that may be awarded by the said district court if said district court shall hold that such suit was wrongfully or improperly removed thereto, and also for their appearing and entering special bail in such suit if special bail was originally requisite therein." This bond is not an ordinary court bond, and the word "bond" is not used in the sense of a writing obligatory, and it need not be executed by the party asking the removal nor be accompanied by a power of attorney when signed by an agent. 27 In the Removal Cases 28 the Supreme Court approved a bond not under seal and signed with the plaintiff's name by 27 Removal Cases, 100 U. S. 457, 25 L. Ed. 593; Loop v. Winter's Estate (C. C.) 115 Fed. 362 ; People's Bank of Greenville v. -SEtna Ins. (C. C.) 53 Fed. 161; Mutual Life Ins. Co. of New York v. Langley (C. C.) 145 Fed. 415; Fayette Title & Trust Co. v. Maryland P. & W. V. Telephone & Telegraph Co. (C. C.) 180 Fed. 928. See "Remov- al of Causes," Dec. Dig. (Key-No.) 88; Cent. Dig. 184-188. 28100 U. S. 457, 25 L. Ed. 593. See "Removal of Causes," Dec. Dig. (Key-No.) 88; Cent. Dig. 184-188. 129) TIME OF FILING PETITION 365 his attorneys. A defect in a bond is not jurisdictional, but the court may allow it to be amended, or a new one to be substituted. 29 The statute does not name any fixed amount as a pen- alty. There is some difference of opinion among the courts whether a bond should name a penalty or not. It would seem to be the correct practice to name a penalty, but the penalty named should be sufficiently large to cover all possible costs in the event of a remand ; and, if it is, the better opinion is that the bond would be in proper form. 30 TIME OF FILING PETITION 129. The petition for removal must be filed at or before the time when the defendant is required by the laws of the state, or the rule of the state court in which the suit is brought, to first answer or plead to the declaration or complaint of the plaintiff. But the question of the time of filing the petition is not one of jurisdiction, but merely modal or formal, and may be waived. In the cases covered by the twenty-eighth section of the Judicial Code, except removals on the ground of prejudice or local influence, the statute requires that the defendant may make and file a petition in such suit in such state court at the time or any time before the defendant is required by the laws of the state, or the rule of the state court in which such suit is brought, to answer or plead to the declaration or complaint of the plaintiff. This is quite a departure / 2 Overman Wheel Co.,/*. Pope Mfg. Co. (C. C.) 46 Fed. 577; Ayres v. Watson, 113 U. S. 594, 5 Sup. Ct. 641, 28 L. Ed. 1093 ; Chase v. Erhardt (D. C.) 198 Fed/305. See "Removal of Causes," Dec. Dig. (Key-No.) 88; Cent. Dig. 184-188. so Commonwealth v. Louisville Bridge Co. (C. C.) 42 Fed. 241; Johnson v. F. C. Austin Mfg. Co. (C. C.) 76 Fed. 616; Groton Bridge Co. v. American Bridge Co. (C. C.) 137 Fed. 284. See "Removal of Causes," Dec. Dig. (Key-No.) 88; Cent. Dig. 184-188. 366 DISTRICT COURT JURISDICTION BY REMOVAL (Ch. 16 from the policy of the earlier acts, which allowed a longer time within which to file the petition. At the same time, the question of the time of filing the petition is not one of jurisdiction, but is, as has been said more than once, mere- ly modal and formal. Hence it is a requirement which may be waived either by direct consent or by conduct. The plaintiff who wishes to contend that the petition has not been filed in time must act promptly. If he goes to trial on the merits, or contests the right of removal on oth- er grounds, he waives this right. 31 Nor can this question be raised for the first time in an appellate court. 32 The question when the petition should be filed depends upon the statutes and practice of the different states. But the petition must be filed when the defendant is required to put in any defense to the complaint, whether of a dilatory character or to the merits. If, under the practice of the state court, dilatory pleas must be filed at an earlier date than pleas to the merits, then the defendant must file his petition at the time when the dilatory plea is due. 38 Rule in Case of Extension of Time The question whether an extension of time within which the defendant shall answer extends the time for filing the petition is one in which the decisions are in great conflict. In the New York circuit it is held that such an extension does extend the time for filing the petition. 34 si Guarantee Co. of North Dakota v. Han way, 104 Fed. 369, 44 C. C. A. 312; Martin v. Baltimore & O. Ry. Co., 151 U. S. 673, 14 Sup. Ct 533, 38 L. Ed. 311; Kansas City, Ft. S. & M. R. Co v. Daughtry, 138 U. S. 298, 11 Sup. Ct. 306, 34 L. Ed. 963. See "Re- moval of Causes," Dec. Dig. (Key-No.) 81; Cent. Dig. 137, 138. 32 Knight v. International & G. N. R. Co., 61 Fed. 87, 9 C. C. A. 376; Newman v. Schwerin, 61 Fed. 865, 10 C. C. A. 129. See "Re- moval of Causes," Dec. Dig. (Key-No.) 81; Cent. Dig. 137. ss MARTIN v. RAILWAY CO., 151 U. S. 673, 14 Sup. Ct. 533, 38 L. Ed. 311; A. Overholt & Co. v. German- American Ins. Co. (C. C.) 155 Fed. 488. See "Removal of Causes," Dec. Dig. (Key-No.) 79; Cent. Dig. 135-160. 3* Lord v. Lehigh Val. R. Co. (C. C.) 104 Fed. 929; Dancel v. Good- 129) TIME OF FILING PETITION 367 There is, however, highly respectable authority the oth- er way. 85 The decisions in the different districts on this point are necessarily largely influenced by the practice of the states in which the decisions are rendered. The case of Martin v. Baltimore & O. Ry. Co., above cited, seems to establish that the petition must be filed before any judgment of de- fault, even conditional in its nature, is entered against the defendant. Hence, on principle, the proper doctrine ap- pears to be that if, at the time the extension is granted, no judgment by default has been entered against the de- fendant, and if the effect of the extension is that no judg- ment by default can be entered until the period of exten- sion expires, then the defendant can file his petition dur- ing such extension. But if a judgment by default has to be set aside in order to grant the extension, it would be too late. In Chiatovich v. Hanchett 8 f . 59 BOND v. DUSTIN, 112 TJ. S. 604, 5 Sup. Ct. 296, 28 L. Ed. 835; Illinois Car & Equipment Co. v. Wagon Co., 112 Fed. 737, 50 C. C. A. 504; Glenn v. Sumner, 132 U. S. 152, 10 Sup. Ct. 41, 33 L. Ed. 301. See "Courts," Dec. Dig. (Key-No.) 352; Cent. Dig. 927. 70 United States Mut. Ace. Ass'n v. Barry, 131 U. S. 100, 9 Sup. Ct. 755, 33 L. Ed. 60; INDIANAPOLIS & ST. L. R. CO. v. HORST, 93 U. S. 291, 23 L. Ed. 898; Toledo, St: L. & W. R. Co. v. Reardon, 148) PEOCEDURE IN COURTS OF LAW 411 The federal court has power to amend a verdict in mat- ters of form, and to receive a sealed verdict, and put it in proper form, when the parties had stipulated that the jury could send in their verdict sealed during a recess. 71 SAME MOTION FOR NEW TRIAL 148. The federal courts follow the usual practice of com- mon-law courts in regard to new trials, and do not feel bound in this respect by state practice. Section 269 of the Judicial Code provides in reference to the federal courts : "All of the said courts shall have power to grant new trials, in cases where there has been a trial by jury, for reasons for which new trials have usual- ly been granted in the courts of law." Here the federal courts decline to follow the state court practice, consider- ing that the question as to granting or withholding a new trial is not a question of pleading, practice, or procedure. 72 The granting or refusing of a new trial in the federal courts is a matter of discretion, and cannot be the subject of a bill of exceptions. 73 159 Fed. 3G6, 86 C. C. A. 360. See "Courts," Dec. Dig. (ffey-Yo.) 352; Cent. Dig. 927. TI Lincoln Tp. v. Cambria Iron Co., 103 U. S. 412, 26 L. Ed. 518: Koon v. Phoenix Mut. Life Ins. Co., 104 U. S. 106, 26 L. Ed. 670. But a court cannot before discharging a jury ask how they stand. Burton v. U. S., 196 U. S. 283, 2.~> Sup. Ct. 243, 49 L. Ed. 482. See "Criminal Law," Dec. Dig. (A'c//-Yo.) 864; "Trial," Dec. Dig. (Key- Yo.) 840; Cent. Dig. 795-199. T2 INDIANAPOLIS & ST. L. R. CO. v. HORST, 93 U. S. 291, 23 L. Ed. 898; Fishburn v. Chicago. M. & St. P. Ry. Co., 137 U. S. 60, 11 Sup. Ct. 8, 34 L. Ed. 585; Hughey v. Sullivan (C. C.) 80 Fed. 72. Sec "Courts" Dec. Dig. (A'e/y-.Yo.) 353; Cent. Dig. 933. -sNewcoinb v. Wood, 97 U. S. 581, 24 L. Ed. 1085; Murhard Es- tate Co. v. Portland & S. R. Co., 163 Fed. 194, 90 C. C. A. 64. The rourt has power to put the successful party on terras as a condi- tion of refusing a new trial. Darnell v. Krouse (C. C.) 134 Fed. 509; Daigneau v. Grand Trunk R. Co. (C. C.) 153 Fed. 593. See 412 PROCEDURE ORIGINAL JURISDICTION (Ch. 18 There is one important qualification of the above doctrine that the federal courts do not follow the state court prac- tice in reference to new trials. Some states have laws giv- ing a new trial as an absolute matter of right in certain classes of cases, mainly involving title to real estate. Where such a law exists, the federal courts will follow it in cases pending on their common-law side, and will grant a new trial under these circumstances. 74 SAME MOTION IN ARREST OF JUDGMENT 149. The practice of the federal courts in respect to mo- tions in arrest of judgment corresponds to the general common-law doctrine. A motion in arrest of judgment under section 954, which is the federal statute of jeofails, will not lie for a variance, nor on account of mere matters of fact, nor for mere de- fects of form, but only for substantial and irremediable de- fects in the cause of action. 76 SAME JUDGMENT 150. At this point, as far as questions of practice, pleading, or procedure are concerned, section 914 of the Re- vised Statutes, assimilating the federal to the state practice, no longer applies; proceedings subse- quent to the judgment being the dividing line. 76 "Appeal and Error," Dec. Dig. (Key-No.) 977; Cent. Dig. 3860- S865. 74 Smale v. Mitchell, 143 U. S. 99, 12 Sup. Ct. 353, 36 L. Ed. 90. See "Courts," Dec. Dig. (Key-No.) 353; Cent. Dig. 933. 75 Adams v. Shirk, 104 Fed. 54, 43 C. C. A. 407; Id., 117 Fed. 801, 55 C. C. A. 25 ; Peden v. Bridge Co. (C. C.) 120 Fed. 523 ; American Bridge Co. v. Peden, 129 Fed. 1004, 64 C. C. A. 580. See "Judg- ment," Dec. Dig. (Key-No.) 259-266; Cent. Dig. 457-499. 7e Detroit United Ry. v, Nichols, 165 Fed. 289, 91 C. C. A. 257. See "Courts," Dec. Dig. (Key-No.) 355; Cent. Dig. 935, 936. 150) PROCEDURE IN COURTS OF LAW 413 While the federal courts will follow the state practice as to the mere form of the judgment, their control over it from that time forward is regulated by the federal decisions and statutes, and not by the state practice. They may correct the record, after the term, in mere clerical errors, but in no other way. 77 Under the federal practice and decisions a judgment can- not be set aside after the term during which it is rendered, though the statute of the state may provide summary rem- edies by motion for the purpose of regulating judgments in its own courts. 78 It is hard to reconcile with the authorities last cited the case of Travelers' Protective Ass'n v. Gilbert. 79 There the court held that it could adopt a state remedy by motion for the reopening of a judgment, and that, when such a right existed in the state practice, it took away from the federal courts their equitable jurisdiction for the reopening or set- ting aside of judgments. Both these propositions are in- consistent with the above case of Bronson v. Schulten, in which the court says that, independent of these state stat- utes allowing the correction of judgments by motion, the power to regulate judgments after the term in which they -were rendered was an equitable power. Nothing is better settled in federal law than the doctrine that the ancient equitable jurisdiction possessed by the federal courts re- mains with them despite newer remedies given by state statutes. The states cannot defeat the federal jurisdiction 77 City of Manning v. Insurance Co., 107 Fed. 52, 46 C. C. A. 144; Home St. Ry. Co. v. Lincoln, 162 Fed. 133, 89 C. C. A. 133. But they may during the term. Southern P. Co. v. Kelley, 187 Fed. 937, 109 C. C. A. 659. See "Courts," Dec. Dig. (Key-No.) 354; Cent. Dig. 934. 7 8 BRONSON v. SCHULTEN, 104 TJ. S. 410, 26 L. Ed. 997; City of Manning v. Insurance Co., 107 Fed. 52, 46 C. C. A. 144 ; Tubnian v. Baltimore & O. R. Co., 190 U. S. 38, 23 Sup. Ct 777, 47 L. Ed. 946; Menge v. Warriner, 120 Fed. 816, 57 C. C. A. 432. See "Courts," Dec. Dig. (Key-No.) 354; Cent. Dig. 934. 7 111 Fed. 269, 49 C. C. A. 309, 55 L. R. A. 538. See "Courts," Dec. Dip. (Key-No.) 354; Cent. Dig. 934. 414 PROCEDURE ORIGINAL JURISDICTION (Ch. IS- in equity on the ground that an adequate remedy exists at law by legislation prescribing remedies at law, though those remedies were simpler than the equitable remedy. 80 The state law is not only inapplicable on questions as to the method of setting aside judgments by the court which rendered them, but, a fortiori, it is still less applicable to proceedings for the review of a judgment. 81 The act of August 1, 1888, 82 provides as follows: "That judgments and decrees rendered in a circuit or dis- trict court of the United States within any state, shall be liens on property throughout such state in the same man- ner and to the same extent and under the same conditions only as if such judgments and decrees had been rendered by a court of general jurisdiction of such state: provided, that whenever the laws of any state require a judgment or decree of a state court to be registered, recorded, docket- ed, indexed, or any other thing to be done, in a particular manner, or in a certain office or county, or parish in the state of Louisiana before a lien shall attach, this act shall be applicable therein whenever and only whenever the laws of such state shall authorize the judgments and decrees of the United States courts to be registered, recorded, dock- eted, indexed, or otherwise conformed to the rules and re- quirements relating to the judgments and decrees of the courts of the state." Under this act it has been held that, in case the state where the federal court sits permits or requires its officers to docket federal judgments, a judgment of the federal court is not a lien on lands in every county of the district, but is only a lien in the special county where the court is so Post, p. 419 si West v. East Coast Cedar Co., 113 Fed. 737, 51 C. C. A. 411; Friedly v. Giddlngs (C. C.) 110 Fed. 438; Giddings v. Freedley, 12& Fed. 355, 63 C. C. A. 85, 65 L. R. A. 327 ; Knight v. Illinois Cent. R. Co., 180 Fed. 368, 103 C. C. A. 514. See "Courts," Dec. Dig. (Key- A T o.) 356; Cent. Dig. 937; "Appeal and Error," Cent. Dig. 3397, 82 U. S. Comp. St. 1901, p. 701. 151) PROCEDURE IN COURTS OF LAW 415 sitting, unless it is also docketed in the state clerk's office of the other counties. 83 A judgment in the federal courts is not a lien on property of the debtor fraudulently conveyed by a conveyance good as between the debtor and the fraudulent grantee, and dat- ed previous to the judgment. 8 * The authorities bearing on the lien of federal judgments are well collated in the footnote to Blair v. Ostrander. 85 SAME EXECUTION 151. State remedies in the nature of execution in force on June 1, 1872, and any later ones adopted by rule of court, are available in the federal courts in com- mon-law causes. In reference to executions, section 916 of the Revised Statutes 86 provides: "The party recovering a judgment in any common-law cause in any circuit or district court, shall be entitled to similar remedies upon the same, by execution or otherwise, to reach the property of the judgment debtor, as are now provided in like causes by the laws of the state in which such court is held, or by any such laws hereafter enacted which may be adopted by general rules of such circuit or district court; and such courts may, from time to time, by general rules, adopt such state laws as may hereafter be in 83 Dartmouth Sav. Bank v. Bates (C. C.) 44 Fed. 546. See "Judg- ment," Dec. Dig. (Key-\o.) 778; Cent. Dig. 1339. 64 Luhrs v. Hancock, 181 U. S. 567, 21 Sup. Ct. 726, 45 L. Ed. 1005. See "Judgment," Dec. Dig. (Key-No.) 779; Cent. Dig. 1340, 1342. 8M7 L. R. A. 469; Id., 109 Iowa, 204, 80 N. W. 330, 77 Am. St. Rep. 532. See, also, Great Falls Nat. Bank v. McClure, 176 Fed. 208, 99 C. C. A. 562. A state statute of limitations to the enforce- ment of judgments applies in the federal courts. General Electric Co. v. Kurd (C. C.) 171 Fed. 984. See "Courts," Dec. Dig. (Key-No.) 354; Cent. Dig. 93^. se U. S. Comp. St 1901, p. 684. 416 PROCEDURE ORIGINAL JURISDICTION (Ch. 18 force in such state in relation to remedies upon judgments, as aforesaid, by execution or otherwise." Under this statute only the reme.dies in the state court in the nature of an execution which were in existence when that statute was passed that is, on June 1, 1872 are avail- able in the federal courts, unless the federal court has by rule adopted subsequent state legislation on the subject. 87 Under section 985 of the Revised Statutes 88 executions of the federal court may run into another district of the same state. Under section 987 89 the court has power to grant a stay of execution for certain purposes. 90 Section 990 of the Revised Statutes 91 provides as fol- lows: "No person shall be imprisoned for debt in any state, on process issuing from a court of the United States, where, by the laws of such state, imprisonment for debt has been or shall be abolished. And all modifications, conditions, and restrictions upon imprisonment for debt, provided by the laws of any state, shall be applicable to the process issuing from the courts of the United States to be executed there- in; and the same course of proceedings shall be adopted therein as may be adopted in the courts of such state." 92 Under section 993, 83 any appraisement of goods taken 87 Canal & C. Streets R. Co. v. Hart, 114 TJ. S. 654, 5 Sup. Ct. 1127, 29 L. Ed. 226; Lamaster v. Keeler, 123 U. S. 376, 8 Sup. Ct. 197, 31 L. Ed. 238. See "Courts," Dec. Dig. (Key-No.) 354; Cent. Dig. 934. ss U. S. Comp. St. 1901, p. 707. 8 TJ. S. Comp. St. 1901, p. 708. so Eaton v. Cleveland, St L. & K. C. R. Co. (C. C.) 41 Fed. 421; Sanborn v. Bay, 194 Fed. 37, 114 C. C. A. 57. See "Courts," Dec. Dig. (Key-No.) 356; Cent. Dig. 937; "Appeal and Error," Dec. Dig. (Key-No.) 460. 91 U. S. Comp. St. 1901, p. 709. 92 in re Bergen, 2 Hughes, 513, Fed. Gas. No. 1,338 ; Stroheim v. Beimel, 77 Fed. 802, 23 C. C. A. 467 ; Hayes v. Canada, A. & P. S. S. Co., 184 Fed. 821, 108 C. C. A. 175. See "Courts," Dec. Dig. (Key- No.) 355; Cent. Dig. 936. 93 U. S. Comp. St. 1901, p. 709. 151) PBOCEDUEE IN COURTS OF LAW 417 on a writ of execution which is required by the state laws must be followed by the federal courts. The federal courts also have power to set aside sales under writs of execution. Mere inadequacy of price alone would not result in a re- sale ; but where the inadequacy is so gross as to shock the conscience, and especially where unfair and questionable methods have been resorted to, the court will not hesitate to set the sale aside. 94 The act of March 3, 1893, 95 lays down important rules in reference to the sale of property under orders of the feder- al court. It can, however, be best discussed in connection with the chancery procedure of the federal courts. * SCHROEDER v. YOUNG, 161 U. S. 334, 16 Sup. Ct 512, 40 L. Ed. 721. See "Execution," Dec. Dig. (Key-No.) 250, 251; Cent. Dig. 697-716. 5 U. S. Comp. St. 1901, p. 710. HUGHES FED.PB.r2o ED.) 27 418 PROCEDURE ORIGINAL JURISDICTION (Ch. 19 CHAPTER XIX PROCEDURE IN THE ORDINARY FEDERAL COURTS OF ORIGINAL JURISDICTION (Continued) COURTS OF EQUITY. 152. General Limits of Equitable Jurisdiction. 153. The Equity Procedure in the Federal Courts How Regulated. 154. Same Pleading General Requisites of Bill. 155. Same Same Injunction Bills. 156. Same Same Judges who may issue injunctions. 157. Same Same Injunctions to State Courts. 158. Same Same Injunctions to State Officials or Boards. 159. Same The Process. 160. Same Defaults. 161. Same The Defense Motions. GENERAL LIMITS OF EQUITABLE JURISDIC- TION 152. The general limits of the equitable jurisdiction of the federal courts are those that prevailed in the High Court of Chancery in England at the time of the adoption of the Constitution of the United States. The distinction between law and equity in the federal courts is made in the Constitution itself, and naturally the jurisdiction in equity which the framers of the Constitu- tion had in mind was that jurisdiction as it prevailed at the time when the Constitution was adopted. 1 It is practically the jurisdiction of the High Court of Chancery in England as it then existed. 2 Section 267 of the Judicial Code provides as follows: "Suits in equity shall not be sustained in any court of the United States in any case where a plain, adequate, and complete remedy may be had at law." 1 Vattier v. Hinde, 7 Pet. 252, 8 L. Ed. 675. See "Courts," Dec. Dig. (Key-No.) 335; Cent. Dig. 902-90T&. 2 Ante, p. 223. 152) GENERAL LIMITS OF EQUITABLE JURISDICTION 419 This section is declaratory of the law as it existed at the time when the Constitution was adopted. It is measured by the subjects over which courts of equity had jurisdic- tion at that time, and, as state courts can neither enlarge nor diminish the jurisdiction of the federal courts, it is not affected by the fact that under subsequent legislation a statutory remedy is given which is as good as the equi- table remedy. Such legislation does not narrow the juris- diction of the federal courts in equity. 3 Even in the federal courts the single fact that there is a remedy at law is not sufficient to oust the courts of their equitable jurisdiction. It must be as full, adequate, and complete as the equitable remedy.* But while the state statutes cannot enlarge or restrict the equitable jurisdiction of the federal courts by making a matter a case of equity cognizance which is not so under the practice of the English High Court of Chancery, the federal courts can avail of any new remedy in the nature of an equitable remedy given for the enforcement of a right which is equitable in its nature. 5 An equity court has no jurisdiction, however, to give a direct decree against the obligors on a bond given for re- lease of property or other purposes incidental to a chan- cery suit. It leaves the parties to their remedy at law. 6 3 Mississippi Mills v. Cohn, 150 TJ. S. 202, 14 Sup. Ct. 75, 37 L. Ed. 1052; ante, p. 224. See "Courts," Dec. Dig. (Key-No.) 259; Cent. Dig. 795, 796. * Arrovvsmith v. Gleason, 129 U. S. 86, 9 Sup. Ct. 237, 32 L. Ed. 630; Empire Circuit Co. v. Sullivan (C. C.) 169 Fed. 1009; Rum- barger v. Yokum (C. C.) 174 Fed. 55. See "Courts," Dec. Dig. (Key- No.) 262; Cent. Dig. 797. s Holland v. Challen, 110 U. S. 15, 3 Sup. Ct. 495, 28 L. Ed. 52 ; Farr v. Hobe-Peters Land Co., 188 Fed. 10, 110 C. C. A. 160. See "Courts," Dec. Dig. (Key-No.) 335; Cent. Dig. 907. s Bein v. Heath, 12 How. 1GS, 13 L. Ed. 939 ; Phillips v. Gilbert, 101 U. S. 721, 25 L. Ed. 833. See "Courts," Dec. Dig. (Key-No.) 335; Cent. Dig. 902. 420 PROCEDURE ORIGINAL JURISDICTION (Ch. 19 THE EQUITY PROCEDURE IN THE FEDERAL COURTS HOW REGULATED 153. The equity procedure of the federal courts is inde- pendent of that in the state courts. The federal courts, in this branch of their jurisdiction, have their own rules and practice. These rules are in accordance with the practice in equity that pre- vailed at adoption of the federal Constitution as modified by a code of rules laid down by the Su- preme Court of the United States under authority of law, together with certain rules of the lower federal courts regulating details of their own pro- cedure. The rules of procedure are prescribed by the Supreme Court under authority of sections 913 and 917 of the Re- vised Statutes, 7 which provide as follows: "The forms of mesne process and the forms and modes of proceeding in suits of equity and of admiralty and mari- time jurisdiction in the circuit and district courts shall be according to the principles, rules, and usages which belong to courts of equity and of admiralty, respectively, except when it is otherwise provided by statute or by rules of court made in pursuance thereof; but the same shall be subject to alteration and addition by the said courts, re- spectively, and to regulation by the Supreme Court, by rules prescribed, from time to time, to any circuit or dis- trict court, not inconsistent with the laws of the United States." "The Supreme Court shall have power to prescribe, from time to time, and in any manner not inconsistent with any law of the United States, the forms of writs and other pro- T U. S. Comp. St. 1901, pp. 683, 684. 153) EQUITY PROCEDUEE IN FEDERAL COURTS 421 cess, the modes of framing and filing proceedings and pleadings, of taking and obtaining evidence, of obtaining discovery, of proceeding to obtain relief, of drawing up, entering, and enrolling decrees, and of proceeding before trustees appointed by the court, and generally to regulate the whole practice, to be used, in suits in equity or ad- miralty, by the circuit and district courts." Under authority conferred by these statutes the Su- preme Court at its February term, 1822, prescribed thirty- three rules to regulate the equity practice of the federal courts of first jurisdiction. 8 Subsequent thereto, at the January term, 1842, these rules were much enlarged, and were increased in number to ninety-two. 9 Since that time three others have been added. One is in reference to giving a personal decree against the mort- gagor under certain circumstances in a foreclosure suit, which was promulgated at the December term, 1863. 10 Another one gave the judge who took part in a decision granting or dissolving an injunction a certain discretion as to suspending or modifying an injunction during the pendency of an appeal. It was promulgated at the Oc- tober term, 1878. 11 And the last was intended to prevent collusive suits by stockholders for causes of action which should be asserted in the first instance by the directors or managing officers of a corporation. It was promulgated at the October term, 1881. 12 These rules remained in force until November 4, 1912. when the Supreme Court promulgated a new draft which went into effect February 1, 1913. This draft changed the old ones so radically as practically to constitute a new sys- tem and render obsolete a great mass of decisions constru- ing the old ones. 13 s 7 Wheat, xvii. 11 97 U. S. vii. 1 How. xli 12 104 U. S. ix. 10 1 Wall. v. is See 33 Sup. Ct xx. 422 PROCEDURE ORIGINAL JURISDICTION (Ch. 10 The right of Congress to authorize the adoption of these rules by the courts has been upheld. 14 The courts, however, can only regulate procedure un- der this power; they cannot, under the guise of a rule, af- fect the jurisdiction of the courts. 15 Under old rule 90 the practice of the federal courts in cases not covered by the rules is "the present practice of the High Court of Chancery in England." Although, as has been seen above, the question of jurisdiction in equity depends upon the English jurisdiction of the equity courts, as it was at the time of the Constitution, or the enactment of the judiciary act immediately after the adoption of the Constitution, yet, as regards questions of practice, this rule meant to adopt the practice of the High Court of Chan- cery as it existed at the time the rules were adopted. That was in 1842. 16 In Thomson v. Wooster 17 the Supreme Court calls at- tention to the fact that the best exponent of the English practice is the edition of Daniell's Chancery Practice issued in the year 1837. It also recommends Smith's Chancery Practice as valuable for the same purpose. It may be added that the first edition of Story's Equity Pleading was published about this same time. A companion work to this is Curtis' Equity Precedents. In the recent revision, old rule 90, adopting the practice of the English High Court of Chancery as of 1842, is omitted. This omission, however, cannot change the fact i*Wayman v. Southard, 10 Wheat. 1, 42, 6 L. Ed. 253. See "Courts," Dec. Dig. (Key-No.) 258, 259; Cent. Dig. 793, 795. is The St. Lawrence, 1 Black, 522, 17 L. Ed. 180; In re Phenix Ins. Co., 118 U. S. 610, 7 Sup. Ct. 25, 30 L. Ed. 274. See "Courts," Dec. Dig. (Key-No.) 78-80, 832; Cent. Dig. 274-292, 911. 16 THOMSON v. WOOSTER, 114 U. S. 104, 5 Sup. Ct. 788, 29 L. Ed. 103; Badger v. Badger, Fed. Cas. No. 717. See "Courts," Dec. Dig. (Key-No.) 335; Cent. Dig. 902-907y 2 . IT THOMSON v. WOOSTER, 114 U. S. 104, 5 Sup. Ct. 788, 29 L. Ed. 105. See "Courts," Dec. Dig. (Key-No.) 335; Cent. Dig. 154) EQUITY PROCEDURE IN FEDERAL COURTS 423 that section 913, just quoted, requires the practice to be "according to the principles, rules, and usages which be- long to courts of equity," except as changed by statute or rule. As we get these "principles, rules, and usages" from the mother country, we must still look to the standard au- thorities in matters not controlled by rule. Under section 918 of the Revised Statutes, 18 the district courts can prescribe rules of practice not inconsistent with the rules of the Supreme Court, but by rule 79 a majority of the circuit judges for the circuit must concur in their adoption. SAME PLEADING GENERAL REQUISITES OF THE BILL 154. The ancient form of bills in equity has been much simplified in the federal equity rules by authoriz- ing the omission of formal averments and abbre- viating the method of stating the cause of action. But it must show (a) The jurisdiction of the court as a federal court. (b) The jurisdiction of the court as an equity court. The bill must be signed by counsel as a pledge of good faith. The first step in the institution of an equity suit in the federal courts is filing the bill. Its general form is the subject of the twenty-fifth rule. Any bill in equity in the federal courts must, independent of its special character, embody two essentials: First, it must show the jurisdiction of the court as a federal court ; and second, it must show the jurisdiction of the court as an equity court. i U. S. Conip. St. 1901, p. 685. 424 PROCEDURE ORIGINAL JURISDICTION (Ch. 19 Federal Jurisdiction The allegations necessary to show its jurisdiction as a federal court have been discussed in connection with the general jurisdiction of the federal courts. 19 It must show in general the citizenship of the parties, if that is the ground of the jurisdiction; the federal question involved, if that is the ground of jurisdiction; the amount involved, if that is an essential element of jurisdiction; and the resi- dence. These are covered by the first two paragraphs of the twenty-fifth rule. Equity Jurisdiction In showing the jurisdiction of the court as an equity court, the general rules of chancery pleading and prac- tice apply; but they are beyond the range of this treatise. It was once said that a bill in chancery contained a story thrice told. Under the equity rules, however, many of the allegations customary in the old English bills in chancery may be omitted, though they are still frequently inserted, apparently for no other reason than that lawyers, when they prepare bills, follow blindly the old form books. The only thing necessary is in the language of the twen- ty-fifth rule, "a short and simple statement of the ultimate [facts upon which the plaintiff asks relief, omitting any mere statement of evidence." The bill should ask the special relief desired, and con- tain a prayer for general relief. Under the latter prayer any relief may be granted consistent with the facts stated, although it is not specially prayed for. 20 If it asks special relief pending the suit, it must be sworn to. Parties On account of the constant inconvenience experienced in the federal courts from inability to make the proper par- i Ante, p. 218 et seq. zoHobson v. Me Arthur, 16 Pet. 182. 10 L. Ed. 930; Tyler v. Sav- age, 143 U. S. 79, 12 Sup. Ct. 340, 36 L. Ed. 82. See "Equity," Dec. Dig. (Key-No.) 427; Cent. Dig. 1001-1014. 154) EQUITY PROCEDURE IN FEDERAL COURTS 425 ties, it is provided by rule 25 that, in case persons appear- ing to be proper are not made parties, the bill must show that they are out of the jurisdiction, or cannot be joined without ousting the jurisdiction. It has been shown in a previous connection that this does not authorize a bill where the parties omitted from it are so essential that no proper decree can be made in their absence. 21 Signature of Counsel Under rule 24 every bill or other pleading shall be signed individually by one or more solicitors of record, and such signatures shall be considered as a certificate by each solicitor that he has read the pleading so signed by him, that upon the instructions laid before him regarding the case there is good ground for the same, that no scandalous matter is inserted in the pleading, and that it is not inter- posed for delay. This signature of counsel is intended as a pledge of good faith. A bill which does not contain it is defective, though an indorsement by counsel will be treated as a sig- nature. 22 A bill which is not signed by counsel will be ordered off the rolls, but if it is signed the court will permit it to be re- stored to the rolls, though in that case it is practically a new bill, and does not relate back to the time of its first filing. 23 Impertinent Matter It is an inherent power of courts of equity to protect their own records, and to guard litigants from unnecessary and irrelevant attacks. Hence a bill which is rambling and prolix may be ordered off the files. If it contains any scandalous or impertinent matter, the court will act all the 21 Ante, p. 256 et seq. 22 Dwight v. Humphreys, Fed. Gas. No. 4,216. See "Equity," Dec. Dig. (Key-No.) Sfl; Cent. Dig. 613. 23 Roach v. Hulings, Fed. Cas. No. 11,874. See "Equity," Dec. Dig. (Key-No.) 311; Cent. Dig. 613. 420 PROCEDURE ORIGINAL JURISDICTION (Ch. 19 more quickly ; and under rule 21 it can in such case act on its own motion. 24 Parties The suit should be prosecuted in the name of the real party in interest, and any person may be a defendant who has or claims an interest adverse to the plaintiff. Rules 37, 38, and 39 contain liberal provisions for suits in a rep- resentative capacity, for interventions, and for omission of absent parties who would defeat the jurisdiction. Interrogatories Under the old rules the plaintiff could propound inter- rogatories to the defendant, annexing them to his bill; but the defendant could not return the compliment, his only remedy being a bill of discovery. 25 The new rules in this respect are more flexible. Rule 58 allows either to propound interrogatories to the other, under judicious restrictions as to time, contents, and en- forcement. It is so liberal in its provisions as to obviate the necessity for bills of discovery. SAME SAME INJUNCTION BILLS 155. Injunction proceedings are instituted by the filing of a bill followed by an order to show cause. In ex- ceptional cases, where it is necessary to preserve the status quo, the court will issue a temporary restraining order. The injunction bill must be sworn to. The injunction remedy is an extraordinary one, and such relief should not be granted unless it is necessary for the protection of the plaintiff's rights. 24 Kelley v. Boettcher, 85 Fed. 55, 29 C. C. A. 14. See "Equity," Dec. Dig. (Key-No.) 151; Cent. Dig. 380-382. 25 Oro Water, Light & Power Co. v. Oroville (C. C.) 162 Fed. 975. See "Courts," Dec. Dig. (Key-No.) 351; Cent. Dig. 924; "Equity," Dec. Dig. (Key-No.) 140; Cent. Dig. 317, 318. 155) EQUITY PROCEDURE IN FEDERAL COURTS 427 The practice on bills praying special relief, like injunction bills, is carefully regulated by the federal statutes and rules. A bill for an injunction should always be sworn to, though this is not necessary in ordinary bills. When filed, the proper practice is to issue a rule to show cause why the injunction should not be granted, and name a day for the hearing of such a rule. The remedy by injunction is an extraordinary remedy, and in theory such relief should not be granted unless it is necessary for the protection of the plaintiff's rights. It should never be granted merely be- cause it will do no harm. 28 Equity rule 73 (corresponding to old rule 55, but much stricter) provides: "No preliminary injunction shall be granted without no- tice to the opposite party. Nor shall any temporary re- straining order be granted without notice to the opposite party, unless it shall clearly appear from specific facts, shown by affidavit or by the verified bill, that immediate and irreparable loss or damage will result to the applicant before the matter can be heard on notice. In case a tem- porary restraining order shall be granted without notice, in the contingency specified, the matter shall be made re- turnable at the earliest possible time , and in no event later than ten days from the date of the order, and shall take precedence of all matters, except older matters of the same character. When the matter comes up for hearing the par- ty who obtained the temporary restraining order shall pro- ceed with his application for a preliminary injunction, and if he does not do so the court shall dissolve his temporary restraining order. Upon two days' notice to the party ob- taining svich temporary restraining order, the opposite par- ty may appear and move the dissolution or modification of the order, and in that event the court or judge shall pro- 2 Ladd v. Oxnard (C. C.) 75 Fed. 703; American Cereal Co. v. Ell Pettijohn Cereal Co., 76 Fed. 372, 22 C. C. A. 236; Teller v. U. K, 113 Fed. 463, 51 C. C. A. 297. See "Injunction," Dec. Diy. (Key- .Vo.) 136, 137; Cent. Dig. 305-309. 428 PROCEDURE ORIGINAL JURISDICTION (Ch. 19 ceed to hear and determine the motion as expeditiously as the ends of justice may require. Every temporary restrain- ing order shall be forthwith filed in the clerk's office." And this notice is necessarily implied by section 263 of the Judicial Code, 27 which reads as follows: "Whenever notice is given of a motion for an injunction out of a district court, the court or judge thereof may, if there appears to be danger of irreparable injury from delay, grant an order restraining the act sought to be enjoined until the decision upon the motion ; and such order may be granted with or without security, in the discretion of the court or judge." When the effect of issuing a rule to show cause without any preventive process would be that it would leave the defendant free to change the status quo, the court, in its discretion, may issue a temporary restraining order. The sole purpose of this order, however, in contemplation of the statutes regulating the subject, is to preserve the status quo. It is necessarily ex parte in its nature, and can be made an instrument of great oppression; for by such an order the defendant is often compelled to take action going beyond the mere preservation of the status quo. It is prac- tically condemning him unheard. 28 Thus the theory as to issuing injunctions in the federal courts is simple, and thoroughly settled both by the stat- utes and decisions. It is, in the first place, the filing of the bill and the issuing of an order to show cause; in the next place, the issuing of a temporary restraining order in 27 See, also, Mowrey v. Indianapolis & C. R. Co., Fed. Cas. No. 9,891. See "Injunction," Dec. Dig. (Key-No.) 1^3; Cent. Dig. 815. 28 Fanshawe v. Tracy, Fed. Cas. No. 4,643; Walworth v. Cook Co., Fed. Cas. No. 17,136; Cohen v. Delavina (C. C.) 104 Fed. 946; Miller v. Mutual Reserve Fund Life Ass'n (C. C.) 109 Fed. 278; North American Land & Timber Co. v. Watkius, 109 Fed. 101, 48 C. C. A. 254 ; Barstow v. Becket (C. C.) 110 Fed. 826 ; United Railroads of San Francisco v. San Francisco (C. C.) 180 Fed. 948; Blacklock v. U. S., 208 TJ. S. 75, 28 Sup. Ct. 228, 52 L. Ed. 396. See "Injunc- tion," Dec. Dig. (Key-No.) US; Cent. Dig 315. 156) EQUITY PROCEDURE IN FEDERAL COURTS 429 the exceptional cases where that order is necessary to pre- serve the status quo. It must be confessed, however, that the practice of the courts does not always accord with the theory. It is not uncommon to turn the temporary re- straining order into an order that is in all respects the equivalent of an ex parte injunction order. Thus the good nature of judges and pertinacity of counsel often change the established practice, and not always with the effect of furthering the ends of justice. SAME SAME JUDGES WHO MAY ISSUE INJUNCTIONS 156. Injunctions may be issued by Supreme Court justices or district judges, and in exceptional cases by cir- cuit judges. Section 264 of the Judicial Code provides what judges may issue injunctions. It reads: "Writs of injunction may be granted by any justice of the Supreme Court in cases where they might be granted by the Supreme Court; and by any judge of a district court in- cases where they might be granted by such court. But no justice of the Supreme Court shall hear or allow any application for an injunction or restraining order in any cause pending in the circuit to which he is allotted, else- where than within such circuit, or at such place outside of the same as the parties may stipulate in writing, except when it cannot be heard by the district judge of the dis- trict. In case of the absence from the district of the dis- trict judge, or of his disability, any circuit judge of the circuit in which the district is situated may grant an in- junction or restraining order in any case pending in the district court, where the same might be granted by the dis- trict judge." 430 PROCEDURE ORIGINAL JURISDICTION (Ch. 19 Under this the Supreme Court judges issue injunctions only in exceptional cases. 29 SAME SAME INJUNCTIONS TO STATE COURTS 157. The federal courts may issue injunctions to the parties in state courts : (a) In limited liability proceedings. (b) In bankruptcy proceedings. (c) Whenever it becomes necessary to protect their own jurisdiction previously acquired, or (d) When an injunction is necessary to relief in a case in which it has had prior jurisdiction. Criminal proceedings in a state court will not be en- joined. Section 265 of the Judicial Code provides as follows: "The writ of injunction shall not be granted by any court of the United States to stay proceedings in any court of a state, except in cases where such injunction may be au- thorized by any law relating to proceedings in bankruptcy." Notwithstanding the general language of this provision, a federal court will refrain from issuing injunctions to state courts only when the state court has first acquired juris- diction. 30 But it will issue injunctions to the state courts, or rather to the parties, wherever it is necessary to protect its own jurisdiction previously acquired, or when necessary to re- lief in a case of which it has had prior jurisdiction. 31 20 Searles v. Jacksonville, P. & M. R. Co., 2 Woods, 621, Fed. Cas. No. 12,586. See "Courts," Dec. Dig. (Key-No.) 262; Cent. Dig. 797. so in re Watts, 190 TJ. S. 1, 23 Sup. Ct. 718, 47 L. Ed. 933; MORAN v. STURGES, 154 U. S. 256, 14 Sup. Ct. 1019, 38 L. Ed. 981 ; Kansas City Gas" Co. v. Kansas City (D. C.) 198 Fed. 500. See "Courts" Dec. Dig. (Key-No.) 260, 282, 508; Cent. Dig. U18- 1430. siDietzsch v. Huidekoper, 103 U. S. 494, 26 L. Ed. 497. See "Courts." Dec. Dig. (Key-No.) 508; Cent. Dig. U t 18-USO. 158) EQUITY PROCEDURE IN FEDERAL COURTS 431 The prohibition against injunctions to the state courts ap- plies not simply to the courts or their officers, but to the parties as well. A federal court will not enjoin the parties from a proceeding' in a state court any more than it will en- join the court officers. 82 Criminal proceedings in a state court will not be en- joined. 88 This statute was first pased in 1793. The limited lia- bility act of 1851 is not affected by it, and the federal courts will issue injunctions to state courts under that act to pre- vent vessel owners from being proceeded against in the state courts. 84 The right to issue injunction proceedings in bankruptcy cases is expressly reserved by this act; in fact, it is allow- able to enjoin proceedings in state courts which contravene the provisions of the bankrupt act even by such summary process as by rule to show cause. 35 SAME SAME INJUNCTIONS TO STATE OF- FICIALS OR BOARDS 158. Injunctions to state officials or boards intended to question the constitutionality of state statutes can only be issued by a court of three judges, a major- ity of whom must concur, and after five days' no- 2 Wagner v. Drake (D. C.) 31 Fed. 849; Dial v. Reynolds, 96 U. S. 340, 24 L. Ed. 644. See "Courts," Dec. Dig. (Key-No.) 508; Cent. Dig. 1418-1430. 33 Harkrader v. Wadley, 172 IT. S. 148, 19 Sup. Ct. 119, 43 L. Ed. 399. See "Courts," Dec. Dig. (Key-No.) 508; Cent. Dig. l' t lS- 1430. 34 Providence & N. Y. S. S. Co. v. Hill Mfg. Co., 109 U. S. 578. 3 Sup. Ct. 379, 27 L. Ed. 1038: MORAN v. STURGES. 154 U. S. 250, 14 Sup. Ct. 1019, 38 L. Ed. 981; In re Whitelaw (D. C.) 71 Fed. 733. See "Courts," Dec. Dig. (Key-No.) 508; Cent. Dig. 1393, 1418- U,SO. 3 5 White v. Schloerb, 178 U. S. 542, 20 Sup. Ct. 1007. 44 L. Ed. 1183. See "Bankruptcy," Dec. Dig. (Key-No.) 217; Cent. Dig. 323, SSO, 340; "Courts," Cent. Dig. 432 PROCEDURE ORIGINAL JURISDICTION (Ch. 19 tice. A temporary restraining order may issue, and the case is expedited in every way possible, both in the inferior and appellate court. Section 266 of the Judicial Code is an addition to pre- existing law. As amended March 4, 1913 (37 Stat. 1013, c. 160), it reads: "No interlocutory injunction suspending or restraining the enforcement, operation, or execution of any statute of a state by restraining the action of any officer of such state in the enforcement or execution of such statute, or in the enforcement or execution of an order made by an ad- ministrative board or commission acting under and pursu- ant to the statutes of such state, shall be issued or granted by any justice of the Supreme Court, or by any district court of the United States, or by any judge thereof, or by any circuit judge acting as district judge, upon the ground of the unconstitutionality of such statute, unless the appli- cation for the same shall be presented to a justice of the Supreme Court of the United States, or to a circuit or dis- trict judge, and shall be heard and determined by three judges, of whom at least one shall be a justice of the Su- preme Court or a circuit judge, and the other two may be either circuit or district judges, and unless a majority of said three judges shall concur in granting such application. Whenever such application as aforesaid is presented to a justice of the Supreme Court, or to a judge, he shall im- mediately call to his assistance to hear and determine the application two other judges: Provided, however, that one of such three judges shall be a justice of the Supreme Court, or a circuit judge. Said application shall not be heard or determined before at least five days notice of the hearing has been given to the governor and to the attorney general of the state, and to such other persons as may be defend- ants in the suit : Provided, that if of opinion that irrepara- ble loss or damage would result to the complainant unless a temporary restraining order is granted, any justice of the 158) EQUITY PROCEDURE IN FEDERAL COURTS 433 Supreme Court, or any circuit or district judge, may grant such temporary restraining order at any time before such hearing and determination of the application for an inter- locutory injunction, but such temporary restraining order shall remain in force only until the hearing and determina- tion of the application for an interlocutory injunction upon notice as aforesaid. The hearing upon such application for an interlocutory injunction shall be given precedence and shall be in every way expedited and be assigned for a hear- ing at the earliest practicable day after the expiration of the notice hereinbefore provided for. An appeal may be taken direct to the Supreme Court of the United States from the order granting or denying, after notice and hear- ing, an interlocutory injunction in such case. It is fur- ther provided that if before the final hearing of such appli- cation a suit shall have been brought in a court of the state having jurisdiction thereof under the laws of such state, to enforce such statute or order, accompanied by a stay in such state court of proceedings under such statute or order pending the determination of such suit by such state court, all proceedings in any court of the United States to restrain the execution of such statute or order shall be stayed pend- ing the final determination of such suit in the courts of the state. Such stay may be vacated upon proof made after hearing, and notice of ten days served upon the attorney general of the state, that the suit in the state courts is not being prosecuted with diligence and good faith." This act applies only to state statutes and state officers, not to mu- nicipal ordinances or municipal officers. 88 Cumberland Telephone & Telegraph Co. v. Memphis (D. C.) 198 Fed. 955. See "Courts," Dec. Dig. (Key-No.) 102, 508. HUGHES FED.PB.(2o ED.) 28 434 PROCEDURE ORIGINAL JURISDICTION (Ch. li) SAME THE PROCESS 159. Process issues upon the filing of the bill. It is usual to file with the clerk a praecipe for process. A gen- eral appearance is a waiver of issuance or service of process. Service of process must be in accordance with equity rule 13, and the return must show such service. Form of Process On filing the bill the process issues. It is usual to file with the clerk a praecipe for process, and not to rely upon him to issue it merely because it is prayed in the bill. In fact this is implied from the language of rule 12, which pro- vides that whenever a bill is filed, and not before, the clerk shall issue the process of subpoena thereon, as of course, up- on the application of the plaintiff. It contains the names of the parties, and is returnable into the clerk's office twen- ty days from the issuing thereof. At its bottom is a memo- randum that the defendant is required to file his answer or other defense in the clerk's office on or before the twentieth day after service, excluding the day thereof; otherwise the bill may be taken pro confesso. As the object of the issuance and service of process is to notify the defendant of the proceedings against him, it is unnecessary in case the defendant on hearing of the pro- ceeding voluntarily appears. A general appearance on his part is a waiver of the issuance or service of process. 37 Service of Process Equity rule 13 provides as follows: "The service of all subpoenas shall be by delivering a copy thereof to the defendant personally, or by leaving a copy thereof at the dwelling house or usual place of abode 37 Seattle L. S. & E. R. Co. v. Union Trust Co., 79 Fed. 179, 24 C. C. A. 512. See "Courts," Dec. Dig. (Key-No.) 3^5; Cent. Dig. 917. 159) EQUITY PROCEDURE IN FEDERAL COURTS 435 of each defendant, with some adult person who is a mem- ber of or resident in the family." As notice of suit is essential to the defendant in order to enable him to protect himself, the provisions as to service must be carefully obeyed, and- the return must show that they have been so obeyed. Hence, where the return was to the effect that the service had been made on an adult per- son, who resided in the defendant's place of abode, the court held it insufficient. It was also held that the return must show that the party on whom it was served was a member or resident in the family of the defendant, not merely an adult resident in the defendant's place of abode, as such a person might be a mere stranger, like a guest at a hotel, for instance, if the defendant resided at a hotel. 88 The service need not necessarily be in a dwelling house, and hence a service was upheld which was made in a grocery store in a dwelling house which was all one building, and the party who kept the store lived upstairs. 39 A process of subpoena is necessary in order to bring the defendants into court, though other notices may have been served on them. For instance, where in an injunction bill, an order to show cause why the injunction should not be issued was served on the defendant, it was still held that process was necessary. 40 Notwithstanding the provisions of this rule, substituted service is sometimes permissible. This is usually the case when the proceeding is ancillary to some other proceeding. In such case service may be made upon the plaintiff's at- torney. But the record should show the necessity for such ssBlythe v. Hinckley (C. C.) 84 Fed. 228. But compare In re Risteen (D. C.) 122 Fed. 732; In re Norton (D. C.) 148 Fed. 301. See "Equity," Dec. Dig. (Key-No.) 12S; Cent. Dig. 296-302. 39 Phoenix Ins. Co. v. Wulf (C. C.) 1 Fed. 775. See "Equity," Dec. Dig. (Key-No.) 123; Cent. Dig. 296-30>. > Wheeler v. Walton & Whann Co. (C. C.) 65 Fed. 720. See "Eq- uity," Dec. Dig. (Key-No.) 121; Cent. Dig. 294. 436 PROCEDURE ORIGINAL JURISDICTION (Ch. 19 service, and an order of court should be obtained allowing it. 41 It has also been seen in another connection that in case of certain proceedings to foreclose an equitable lien, serv- ice may be made by publication. 42 Service under rule 15 must be made by the marshal or his deputy, or by some person specially appointed by the court for the purpose, in which latter case the person so appoint- ed must make affidavit thereof. 43 SAME DEFAULTS 160. If the defendant does not appear and defend within the time required by the equity rules, the plaintiff may take a decree by default; in which case no proof is necessary if the allegations of the bill are sufficient as a basis for a decree. The defendant is required by rule 16 to file his answer or other defense to the bill within the time named in the sub- prena as required by rule 12, that is, on or before twenty days from service of process on him, on pain of having the bill taken for confessed and the cause heard ex parte. And equity rule 17 provides as follows : "When the bill is taken pro confesso the court may pro- ceed to a final decree at any time after the expiration of thirty days after the entry of the order pro confesso, and such decree shall be deemed absolute, unless the court shall, at the same term, set aside the same, or enlarge the time for filing the answer, upon cause shown upon motion 41 Abraham v. North German Ins. Co. (C. C.) 37 Fed. 731, 3 L..R. A. 188 ; Gregory v. PIRe, 79 Fed. 520, 25 C. C. A. 48. See "Equity," Dec. Dig. (Key-No.) 122; Cent. Dig. 295. 42 Ante, p. 277 et seq. 43Ryman v. Chales (C. C.) 12 Fed. 855; Puleston v. U. S. (C. C.) 85 Fed. 570, 577. See "Equity," Dec. Dig. (Key-No.) 123, 124; Cent. Dig. 296-303. 160) EQUITY PROCEDURE IN FEDERAL COURTS 437 and affidavit. No such motion shall be granted, unless up- on the payment of the costs of the plaintiff up to that time, or such part thereof as the court shall deem reasonable, and unless the defendant shall undertake to file his answer with- in such time as the court shall direct, and submit to such other terms as the court shall direct, for the purpose of speeding the cause." When the bill is so taken for confessed, the only ques- tions left open are such questions as cannot be covered by the averments of the bill ; as, for instance, the amount of damages in an infringement suit. The fact of infringement is no longer open. 44 And after default no proof is necessary on the allegations of the bill, except as to matters of account or of similar character. 48 If, however, the allegations of the bill themselves are insufficient to support a decree, a default cannot be entered even where no appearance or defense has been interposed. 46 The default necessary to justify a decree by default is a default due to the failure of the defendant to appear and de- fend. If he has appeared and defended, the court cannot strike his answer from the files as a punishment for con- tempt, and then proceed against him as for a default. Such action would not be due process of law. 47 If the defendant has appeared, though he has not de- fended, he is in court so far that he is entitled to notice of 4* Reedy v. Western Electric Co., 83 Fed. 709, 28 C. C. A. 27. See "Equity" Dec. Dig. (Key-No.) 420; Cent. Dig. 970. < THOMSON v. WOOSTER, 114 U. S. 104, 5 Sup. Ct 788, 29 L. Ed. 105 ; U. S. v. 650 Cases of Tomato Catsup (D. C.) 166 Fed. 73 ; Webster v. Oliver Ditson Co. (C. C.) 171 Fed. 895. See "Equity," Dec. Dig. (Key-No.) 420; Cent. Dig. 970. 4 e Wong Him v. Callahan (C. C.) 119 Fed. 381. See "Equity," Dec. Dig. (Key-No.) 420; Cent. Dig. 970. 47 Hovey v. Elliott, 167 U. S. 409, 17 Sup. Ct. 841, 42 L. Ed. 215; Barnes v. Trees (D. C.) 194 Fed. 230. Compare Hammond Pack- ing Co. v. Arkansas, 212 U. S. 322, 29 Sup. Ct. 370, 53 L. Ed. 530, 15 Ann. Cas. 645. See "Constitutional Law," Dec. Dig. (Key-No.) 273, 312. PROCEDURE ORIGINAL JURISDICTION (Ch. 19 any application for final decree even after .default; for he has the right to be heard as to the form of final decree to be entered, though he may not care to defend on the mer- its. 48 A final decree entered on a default cannot be set aside after the expiration of the term at which it is entered. 49 If, however, the decree entered upon default is only inter- locutory in its nature, it may be set aside at a subsequent term. 50 But if the decree was entered by default in a case where the court had not acquired jurisdiction by service of process or otherwise, it may be set aside on motion even at a sub- sequent term, as it is no decree at all. 51 This doctrine that a default decree, if final, cannot be set aside, must not be confounded with the right of the court under equity rule 69 to grant a rehearing in ordinary cases at any time during the succeeding term. 52 4 s Bennett v. Hoefner, Fed. Gas. No. 1,320; Southern Pac. R. Co. v. Temple (C. C.) 59 Fed. 17 ; Davis v. Garrett (C. C.) 152 Fed. 723 ; Provident Life & Trust Co. of Philadelphia v. Camden & T. R. Co., 177 Fed. 854, 101 C. C. A. 68. These decisions were rendered under the old rules which required a formal appearance one rule day be- fore the answer. The new rules do not require this, but there are many motions of a defendant that constitute an appearance; so that the reason of the decisions still holds good. See "Equity," Dec. Dig. (Key-No.) 422; Cent. Dig. 932-91,9. 4 a Austin v. Riley (C. C.) 55 Fed. 833; Stuart v. St. Paul (C. C.) 63 Fed. 644. See "Equity," Dec. Dig. (Key-No.) 430; Cent. Dig. 1034-1047. so Blythe v. Hinckley (C. C.) 84 Fed. 228. See "Equity," Dec. Dig. (Key-No.) 430; Cent. Dig. 1034-1041. 51 Eldred v. American Palace Car Co. of New Jersey (C. C.) 103 Fed. 209; Arredondo v. Cuebas y Arredondo, 223 IT. S. 376, 32 Sup. Ct. 277, 56 L. Ed. 476. See "Equity," Dec. Dig. (Key-No.) 430; Cent. Dig. 1034-1047. 52 MOELLE v. SHERWOOD, 148 U. S. 21, 13 Sup. Ct. 426, 37 L. Ed. 350. See "Courts," Dec. Dig. (Key-No.) 430; Cent. Dig. 1034-1047. 161) EQUITY PROCEDURE IN FEDERAL COURTS SAME THE DEFENSE MOTIONS 161. The defense is made by motion or answer, those ap- pearing on the face of the bill or intended to ques- tion the jurisdiction being made by motion. Dila- tory defenses may be made in the answer, and dis- posed of before the main trial. Defenses involving a special appearance only should be made by motion to dismiss. Perhaps the most radical change in the new rules is that abolishing demurrers and pleas, and substituting motions and answers. New rule 29 reads : "Demurrers and pleas are abolished. Every defense in point of law arising upon the face of the bill, whether for misjoinder, nonjoinder, or insufficiency of fact to constitute a valid cause of action in equity, which might heretofore have been made by demurrer or plea, shall be made by mo- tion to dismiss or in the answer ; and every such point of law going to the whole or a material part of the cause or causes of action stated in the bill may be called up and dis- posed of before final hearing at the discretion of the court. Every defense heretofore presentable by plea in bar or abatement shall be made in the answer and may be sepa- rately heard and disposed of before the trial of the princi- pal case in the discretion of the court. If the defendant move to dismiss the bill or any part thereof, the motion may be set down for hearing by either party upon five days' notice, and, if it be denied, answer shall be filed with- in five days thereafter or a decree pro confesso entered." Special Appearances The implication of this language is that only defenses ap- pearing on the face of the bill shall be made by motion to dismiss. But this cannot be the intent. There are some defenses which must be the subject of a special appearance, 440 PROCEDURE ORIGINAL JURISDICTION (Ch. 19 and which depend on facts not appearing on the face of the bill. They could not be joined with defenses in the answer going to the merits; for a general and special appearance cannot in the nature of things be combined, 53 and it is not probable that the court intended to abrogate this doctrine. A familiar example is an objection to the service of pro- cess. Another is an objection to the district of suit. These are questions of jurisdiction over the person, which cannot be combined with defenses to the merits. They do not ap- pear on the face of the bill; for that shows nothing as to the service of process, and the district of the defendant's residence might be misstated. It is believed that such de- fenses must be made by motion even if its hearing involved the taking of testimony. Otherwise the rules do not pro- vide for the case. A question like the jurisdiction of the court as a federal court either over the subject-matter or person was raised by demurrer under .the old rules if it appears from the facts stated in the bill itself. 5 * Now it would be raised by mo- tion to dismiss. Matters in Bar Legal Defenses Under the old rules, legal defenses going to the merits and appearing on the face of the bill were raised by demur- rer. Under the new rule above quoted, they are raised by motion to dismiss, and the hearing on such motion must proceed along lines similar to the old hearings on demurrer. But under the new rule they may also be raised in the an- swer. 53 Jones v. Andrews, 10 Wall. 327, 19 L. Ed. 935. See "Appear- ance," Dec. Dig. (Key-No.) 23; Cent. Dig. 114; "Equity," Dec. Dig. (Key-No.) 127; Cent. Dig. 806. 5* Southern Pac. Co. v. Denton, 146 U. S. 202, 13 Sup. Ct 44, 36 L. Ed. 942. See "Courts," Dec. Dig. (Key-No.) 280; Cent. Dig. 816- 818; "Equity," Dec. Dig. (Key-No.) 220; Cent. Dig. 497. 161) EQUITY PROCEDURE IN FEDERAL COURTS 441 Instances of Defense Formerly Available by Demurrer, Now by Motion to Dismiss, or in the Answer This is the proper way to raise the question that there is an adequate remedy at law. If the case asserted in the bill belongs to any general class of jurisdiction in which an equity court is competent to grant relief, the failure to make the point is a waiver of the right to set up that there is an adequate legal remedy. 88 The defense that the plaintiff has been guilty of laches, or that his claim is barred by the statute of limitations, can be raised in the same way if the necessary facts appear on the bill. 58 The defense that the bill does not show any equity is also available in this way, if appearing on the face of the bill. But the court will grant relief under such circumstances if, on any possible state of the evidence or the facts contained in the bill, it could give relief, though those facts may be stated vaguely. 87 Two important additions to the old rules and practice are new rules 22 and 23. The first provides for transferring to the law side of the court a suit wrongly brought in equi- ty, with only such change in the pleadings as is essential, and the second makes a similar provision as to a suit wrongly brought on the common-law side, and provides for hearing on common-law principles any common-law mat- ter that may arise in an equity suit, without sending it to the common-law side. 55 Brown, B. & Co. v. Lake Superior Iron Co., 134 U. S. 530, 10 Sup. Ct. 604, 33 L. Ed. 1021; Perego v. Dodge, 163 U. S. 160, 16 Sup. Ct 971, 41 L. Ed. 113; Metropolitan Ry. Receivership, 208 U. S. 90, 28 Sup. Ct. 219, 52 L. Ed. 403 ; Acord v. Western Pocahontas Corporation (C. C.) 156 Fed. 989 ; Id., 174 Fed. 1019, 98 C. C. A. 62H. See "Equity," Dec. Dig. (Key-No.) 220; Cent. Dig. 497. so Speidel v. Henrici, 120 U. S. 377, 7 Sup. Ct. 610, 30 L. Ed. 718; Thurmond v. Chesapeake & O. Ry. Co., 140 Fed. 697, 72 C. C. A. 191. See "Equity," Dec. Dig. (Key-No.) 223; Cent. Dig. 502. 57 Pacific Live Stock Co. v. Hanley (C. C.) 98 Fed. 327; Failey v. Talbee (C. C.) 55 Fed. 892. See "Equity," Dec. Dig. (Key-No.) 223; Cent. Dig. 502. 442 PROCEDURE ORIGINAL JURISDICTION (Ch. 19 No express procedure for raising this question is pre- scribed, but the natural way would be by motion, though there is no reason why it could not be combined with other defenses in the answer. The same may be said as to new rule 26, which states the causes of action which may be joined in one bill. Facts Admitted by Motion to Dismiss A demurrer admits only facts well pleaded ; not general statements or inferences or conclusions of law. 58 The same principle would apply to a motion raising questions ap- parent on the face of the bill. Joinder of Issue on Motion The only step necessary in order to join issue on a mo- tion to dismiss is to have it set down for hearing, as al- lowed by the last sentence of rule 29. This requires five days' notice to the opposing party. Decision on Motion Under rule 29, if the motion is denied, the answer shall be filed within five days thereafter, or a decree pro confesso may be entered. This implies that the defendant is enti- tled to answer as of right ; and it was so held under the old rule corresponding to rule 29. 59 Amendments of Bill If the motion goes to matters which are capable of amendment, the court in sustaining it will permit such amendment. The new rules are liberal in this respect. Rule 19 provides : "The court may at any time, in furtherance of justice, upon such terms as may be just, permit any process, pro- ceeding, pleading or record to be amended, or material sup- sschlcot County v. Sherwood, 148 U. S. 529, 13 Sup. Ct. 695, 37 L. Ed. 546; Equitable Life Assur. Soc. of United States v. Brown, 213 U. S. 25, 29 Sup. Ct. 404, 53 L. Ed. 682. See "Equity," Dec. Dig. (Key-No.) 239; Cent. Dig. 494. sWooster v. Blake (C. C.) 7 Fed. 816. See "Equity," Dec. Dig. (Key-No.) 176; Cent. Dig. 432. 161) EQUITY PROCEDURE IN FEDERAL COURTS 443 plemental matter to be set forth in an amended or supple- mental pleading. The court, at every stage of the proceed- ing, must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties." And rule 28 provides : "The plaintiff may, as of course, amend his bill before the defendant has responded thereto, but if such amendment be filed after any copy has issued from the clerk's office, the plaintiff at his own cost shall furnish to the solicitor of rec- ord of each opposing party a copy of the bill as amended, unless otherwise ordered by the court or judge. "After pleading filed by any defendant, plaintiff may amend only by consent of the defendant or leave of the court or judge." This right to amend the bill after decision is discretionary with the court, and is not a matter of absolute right. If the plaintiff has been negligent about it, or has unduly delayed his request to amend, the court may, in its discretion, refuse him the right. 60 eo Mercantile Nat. Bank v. Carpenter, 101 U. S. 567, 25 L. Ed. 815; Edward P. Allis Co. v. Withlacoocuee Lumber Co., 105 Fed. 680, 44 C. C. A. 673. See "Equity," Dec. Dig. (Key-No.) 271; Cent. Dig. 558-560. 444 PROCEDURE ORIGINAL JURISDICTION (Ch. 20 CHAPTER XX PROCEDURE IN THE ORDINARY FEDERAL COURTS OF ORIGINAL JURISDICTION (Continued) COURTS OF EQUITY (Continued) 162. The Defense (Continued) The Answer. 1G3. Same Same Joinder of Issue on. 164. The Proofs. 165. Same Testimony by Deposition, before Examiners. 166. Same Testimony by Deposition under Statutes. 167. References. 168. The Decree Form of. 169. Same Its Enforcement. 170. Same Reopening of Decree. THE DEFENSE (Continued) THE ANSWER 162. The answer is the method of setting up defenses of fact, and also such defenses of law as may be made by motion to dismiss, and are not required to be set up by a special appearance. An answer, so far it is responsive to the bill, has pro- bative force, if under oath, and is conclusive un- less contradicted by two witnesses or one witness and strong corroborating circumstances. Equity rule 30 provides: "The defendant in his answer shall in short and simple terms set out his defense to each claim asserted by the bill, omitting any mere statement of evidence and avoiding any general denial of the averments of the bill, but specifically admitting or denying or explaining the facts upon which the plaintiff relies, unless the defendant is without knowl- edge, in which case he shall so state, such statement oper- ating as a denial. Averments other than of value or amount of damage, if not denied, shall be deemed confess- ed, except as against an infant, lunatic or other person non 162) THE DEFENSE 445 compos and not under guardianship, but the answer may be amended, by leave of the court or judge, upon reason- able notice, so as to put any averment in issue, when jus- tice requires it. The answer may state as many defenses, in the alternative, regardless of consistency, as the defend- ant deems essential to his defense. "The answer must state in short and simple form any counterclaim arising out of the transaction which is the subject-matter of the suit, and may, without cross-bill, set out any set-off or counterclaim against the plaintiff which might be the subject of an independent suit in equity against him, and such set-off or counterclaim, so set up, shall have the same effect as a cross-suit, so as to enable the court to pronounce a final judgment in the same suit both on the original and cross-claims." An answer in equity, if under oath, and responsive to the charges of the bill, is more than a simple pleading put- ting facts in issue. It has probative force in itself, and is conclusive unless overcome by the testimony of two wit- nesses, or one witness and corroborating circumstances. This rule, coming from the doctrines of the civil law, is firmly established in chancery practice. 1 But this rule ceases where the reason for it no longer exists, and hence even an answer under oath, professing not to be on personal knowledge, has no probative force, and merely puts the matter in issue. 2 There is nothing in the new rules indicating any inten- tion to abrogate the pre-existing law as to the probative force of a sworn answer, unless it might be inferred from the allowance of inconsistent defenses (which would be a right hard answer to swear to) ; but this is hardly enough 1 LATTA v. KILBOURN, 150 U. S. 524, 14 Sup. Ct. 201, 37 L. Ed. 1169 ; Kennedy v. Ouster, 174 Fed. 972, 98 C. C. A. 584. See "Equi- ty," Dec. Dig. (Key-No.) 31,5; Cent. Dig. 715-124. 2 Hanchett v. Blair, 100 Fed. 817, 41 C. C. A. 76 ; Savings & Loan Soc. v. Davidson, 97 Fed. 69G, 38 C. C. A. 365. See "Equity," Dec. Dig. (Key-No.) S$l; Cent. Dig. 687. 446 PROCEDURE ORIGINAL JURISDICTION (Ch. 20 to warrant an intent to change a rule of such long stand- ing, and hence it is believed that this is still the law. Prior to the new rules, statements in the bill neither ad- mitted nor denied by the answer were not considered as impliedly admitted but had to be proved. 3 But rule 30, above quoted, changes this, except as to averments of value or amount of damage. Another material change made by new rule 30 is the al- lowance of inconsistent defenses in the answer. Hereto- fore it was not allowed. 4 Under rule 43, want of parties may be set up by an- swer. An important effect of rule 30 is the allowance of many defenses or counterclaims to be set up by answer which heretofore could be asserted only by cross-bill. 5 SAME SAME JOINDER OF ISSUE ON 163. The joinder of issue on an answer is made (a) In some cases by motion to strike out. (b) In others by reply. Usually no formal reply is necessary. Under the former practice the method of questioning the sufficiency of an answer, whether in point of law or in re- spect of its being a full answer to the charges of the bill,, was by exception. But new rule 33 provides: "Exceptions for insufficiency of an answer are abolished. But if an answer set up an affirmative defense, set-off or s Lovell v. Johnson (C. C.) 82 Fed. 206 ; Butterfield v. Miller, 195 Fed. 200, 208, 115 C. C. A. 152. See "Equity," Dec. Dig. (Key-No.) 325; Cent. Dig. 641-647. 4 Ozark Land Co. v. Leonard (C. C.) 24 Fed. 660 ; Von Schroder v. Brittan (C. C.) 98 Fed. 169. See "Equity," Dec. Dig. (Key-No.) 184; Cent. Dig. $5. 5 Mitchell v. International Tailoring Co. (C. C.) 169 Fed. 145. See "Equity," Dec. Dig. (Key-No.) 196; Cent. Dig. 450-454. 163) THE DEFENSE 447 counterclaim, the plaintiff may, upon five days' notice, or such further time as the court may allow, test the suffi- ciency of the same by motion to strike out. If found in- sufficient but amendable the court may allow an amend ment upon terms, or strike out the matter." The language of this rule makes it manifest that a mo- tion to strike out will lie only to new or affirmative mat- ter in the answer, and not for its failure to fully answer the bill or to set up a sufficient defense of a merely nega- tive nature. If defendant fails to answer fully, plaintiff under new rule 30 can treat this as an admission of the truth of the unanswered part. If he wishes a discovery he can pro- pound interrogatories and compel a reply under the provi- sions of new rule 58. If on the other hand the answer fails to set up a good defense in law, the plaintiff is not hurt, but can contend for his relief with the greater confidence. So the abolition of the old practice of exceptions does no harm. If the answer was not subject to exception for insuffi- ciency, the method of putting in issue the facts set up in it was under the former practice by replication. Now new rule 31 provides: "Unless the answer assert a set-off or counterclaim, no reply shall be required without special order of the court or judge, but the cause shall be deemed at issue upon the filing of the answer, and any new or affirmative matter therein shall be deemed to be denied by the plaintiff. If the answer include a set-off or counterclaim, the party against whom it is asserted shall reply within ten days after the filing of the answer, unless a longer time be al- lowed by the court or judge. If the counterclaim is one which affects the rights of other defendants they or their solicitors shall be served with a copy of the same within ten days from the filing thereof, and ten days shall be ac- corded to such defendants for filing a reply. In default of 448 PROCEDURE ORIGINAL JURISDICTION (Ch. 20 a reply, a decree pro confesso on the counterclaim may be entered as in default of an answer to the bill." Hearing on Bill and Answer Another step, which practically amounts to joining is- sue on the answer, is by going to trial on bill and answer. This is tantamount to the position that the answer is so in- sufficient as not to amount to a legal defense in other words to a demurrer to the answer. 6 But when this step is taken, the sufficiency of all the facts well pleaded in the answer, whether they consist of mere denials of the bill, or of defenses of new matter, is admitted; and the plaintiff, by resorting to it, runs the risk of making his case rest upon the position that he is entitled to a decree upon bill and answer ; and, if he should turn out to be mistaken, he has no further right to insist upon joining issue and taking proofs. Amendments of Answers. Under the former practice, amendments of answers were allowed witn reluctance. This was the old doctrine of the English chancery courts, and was emphasized by old equity rule 60. But the new rules are more liberal in this respect. New rule 19 allows the amendment of any pleading in fur- therance of justice, and new rule 30 makes special provi- sion for the amendment of answers. THE PROOFS 164. The evidence in equity cases is taken in open court as a rule, the other methods being the exception and requiring a special showing to authorize their use. By section 862 of the Revised Statutes 7 it is provided that "the mode of proof in causes of equity and of admiral- e Banks v. Manchester, 128 TJ. S. 244, 9 Sup. Ct. 36, 32 L. Ed. 425. See "Equity," Dec. Dig. (Key-No.) 213; Cent. Dig. 486. i U. S. Comp. St. 1901, p. 661. 165) THE PROOFS 449 ty and maritime jurisdiction shall be according to rules now or hereafter prescribed by the Supreme Court, except as herein specially provided." The special provisions alluded to are those authorizing the taking of depositions. Subject to these provisions, the equity rules make elaborate provision for the taking of testimony. They are contained in rules 46 to 56, inclusive. The policy of these rules is a complete reversal of the former policy on the subject. The previous practice con- templated depositions as the rule. Under new rule 46 the evidence is taken in open court, except as otherwise pro- vided. The court rules upon the admissibility of evidence at the time, allowing a party whose evidence is excluded to embody in the record ^vdiat he expects to prove, and to except. Under rule 48, arrangements may be made for taking the testimony down in shorthand, and having the stenographer's fees taxed as costs. SAME TESTIMONY BY DEPOSITION BEFORE EXAMINERS 165. In exceptional cases the evidence may be taken by deposition before an examiner appointed by the court. Equity rule 47 provides that when allowed by statute, or in exceptional cases to be shown by affidavit, the cour^ may permit the deposition of named witnesses to be taken be- fore an examiner or other named officer. The depositions of the plaintiff must be taken within sixty days after the cause is at issue, those of the defendant within sixty days after the expiration of the plaintiff's time, and the rebutting evidence within twenty days after the expiration of the defendant's time. Rule 49 provides that they shall be tak- en on question and answer or in narrative form, thus doing away with the old practice of written interrogatories in HUGHES FED.PB.(2o ED.) 29 450 PROCEDURE ORIGINAL JURISDICTION (Ch. 20 such cases. Under rule 51, provision is made for noting ex- ceptions to evidence, and for having it written down and signed. Rule 52 provides for compelling the attendance of witnesses when in reach of a subpoena. And rule 53 pro- vides for notice to the adverse party. SAME TESTIMONY BY DEPOSITION UNDER STATUTES 166. Testimony may also be taken by deposition in the cases provided by statute. Rule 54 provides as follows: "After a cause is at issue, depositions may be taken as provided by sections 863, 865, 866 and 867, Revised Stat- utes. But if in any case no notice has been given the op- posite party of the time and place of taking the deposition, he shall, upon application and notice, be entitled to have the witness examined orally before the court, or to a cross- examination before an examiner or like officer, or a new deposition taken with notice, as the court or judge un- der all the circumstances shall order." In addition to the methods prescribed by these sections, such depositions may be taken in the mode prescribed by the laws of the state where the court is held. 8 It will be observed that rule 54 allows depositions under these statutes only "after a cause is at issue." But section 863 allows such depositions "in any civil cause depending in a circuit or district court * * * when the witness lives at a greater distance from the place of trial than one s Act March 9, 1892, c. 14, 27 Stat. 7 (U. S. Comp. St. 1901, p. 664). But this act only adopts the state method of taking depositions; it does not enlarge the conditions under which they may be taken beyond those named in the federal statutes. Hanks Dental Ass'n v. 'international Tooth Crown Co., 194 U. S. 303, 24 Sup. Ct. 700, 48 L. Ed. 989. See "Courts," Dec. Dig. (Key-No.) 350; Cent. Dig. 923. 166) THE PEOOFS 451 hundred miles, or is bound on a voyage to sea, or is about to go out of the United States, or out of the district in which the case is to be tried, and to a greater distance than one hundred miles from the place of trial, before the time of trial, or when he is ancient and infirm." This language is wide enough to allow depositions before a case is at issue, and that must have been its intent. .Oth- erwise valuable testimony would be inevitably lost while waiting for the case to be at issue. Even under new rule 12, which has greatly shortened the time formerly allowed defendant, process is not returnable until twenty days after issue, and the defendant need not defend till twenty days after service. Hence, if process is served on the last day, thirty-nine days might elapse before issue. If the defend- ant then moves to dismiss instead of answering and raises a delicate jurisdictional question which the court takes un- der advisement, there is no telling how long a time may elapse before issue. Even the Supreme Court cannot repeal a statute by a rule. Section 862 conferring the power to regulate the mode of proof in equity and admiralty cases expressly ex- cepts cases "herein specially provided." Section 917 giv- ing a similar power to make rules limits it to cases "not in- consistent with any law of the United States." This pre- serves the right given by section 863, which contains no language limiting the right to cases at issue, and which has been construed not to mean that; and hence it is be- lieved that notwithstanding this limitation in the rule, dep- ositions can be taken in the urgent cases named in section 863, although the case is not at issue. 9 In Flower v. MacGinniss, li2 Fed. 377, 50 C. C. A. 291, it was held that depositions may be taken in admiralty before issue joined. In Stegner v. Blake (C. C.) 36 Fed. 183, the statute was held to apply to the equity court On the other hand, Flower v. MacGin- niss, supra, and Stevens v. Missouri, K. & T. R. Co. (C. C.) 104 Fed. (134, held that depositions could not be taken until after Issue in an equity case. The ruling was based on the language of old rule CA. 452 PROCEDURE ORIGINAL JURISDICTION (Ch. 20 Under rule 56, the case goes on the trial calendar after the lapse of the time allowed for depositions, and it takes a strong showing thereafter to allow the taking of any more depositions. REFERENCES 167. It is common in chancery cases to have references of various matters to special masters or commission- ers. This, however, is not a matter of right, and under the new rules is only made on showing an exceptional condition requiring it. When special questions are referred to a master, his re- port is entitled to great weight, because of his su- perior facilities for investigation; but his findings are not conclusive, and may be set aside by the court. Exceptions to a master's report must be filed twenty days from the filing of the report, or may be taken at the time the same is read to the parties by the- master. Exceptions are not necessary for the purpose of raising questions of law appearing on the face of the re- port. On consent of parties, the court may refer to a master the entire question, both of law and fact, in the case. When this is done, the decision of the mas- which was in this respect the same as new rule 54. Neither case considered the question of the right of the court to make a rule in conflict with the statute as guarded by the limitations above quoted on the power of the court. The first case expressly held that a case in equity is "depending" as soon as the bill is filed. The stat- ute itself draws no distinction between equity and admiralty cases, and the preservation of testimony may be just as important in one as in the other. The author believes, in spite of these decisions and the language of the rule, that depositions taken under section 863 (U. S. Comp. St. 1901, p. 661) in an equity case before issue ought to be admitted. See "Admiralty," Dec. Dig. (Key-No.) 16; Cent. Dig. 588-591; "Courts," Dec. Dig. (Key-No.) S50; Cent. Dig. 167) REFERENCES 453 ter is presumptively correct, and can be overruled only when there has been manifest error in the consideration given to the evidence, or in the ap- plication of the law. The matter of references is covered by new rules 59 to 68, inclusive. A reference is not a matter of right, and is not allowed unless the plaintiff shows a prima facie case; nor is it al- lowed for the mere purpose of aiding him to make out his case. 10 Under new rule 65, a reference, save in matters of ac- count, is the exception, not the rule, and is made only on showing that some exceptional condition requires it. Nor is the court bound to refer any questions, but it may, if it sees fit, go into questions of account itself, or have the accounts made up at the bar of the court. 11 The appointment of masters in chancery is provided by rule 68, which allows district courts to appoint standing masters in chancery in their respective districts, or to ap- point a master pro hac vice in any particular case. Their duties are defined by Justice Field in Kimberly v. Arms. 12 Under section 68 of the Judicial Code, clerks or their dep- uties should not be appointed special masters unless the court certifies in the order that there is a good reason for such appointment in the special case. If, however, they are appointed, such appointment cannot be questioned col- laterally, and their acts are valid. 13 10 Columbian Equipment Co. v. Mercantile Trust & Deposit Co., 113 Fed. 23, 51 C. C. A. 33. See "Equity," Dec. Dig. (Key-No.) 399, 400; Cent. Dig. 864-868. 11 Brown v. Grove, 80 Fed. 564, 25 C. C. A. 644. See "Equity," Dec. Dig. (Key-No.) 899, 400; Cent. Dig. 864-868. 12 129 U. S. 512, 9 Sup. Ct 355, 32 L. Ed. 764. See "Equity," Dec. Dig. (Key-No.) 395; Cent. Dig. 85-M56, 920, 921. is Seaman v. Northwestern Mutual Life Insurance Co., 86 Fed. 500, 30 C. C. A. 212. As to the effect of disregarding the statute, 454 PROCEDURE ORIGINAL JURISDICTION (Ch. 20 There are no special statutes regulating- the amount of compensation of such masters, but that is a question of dis- cretion in the court. 14 The practice of referring the whole case to a master has been frequently disapproved, for only separate questions should be referred to mm. If an order is entered by consent of both parties refer- ring to him all questions in the case, it comes very near an arbitration, and his findings in such case are difficult to question. On this subject Mr. Justice Field says in Kim- berly v. Arms : 15 "A master in chancery is an officer appointed by the court to assist it in various proceedings incidental to the progress of a cause before it, and is usually employed to take and state accounts, to take and report testimony, and to perform such duties as require computation of interest, the value of annuities, the amount of damages in particular cases, the auditing and ascertaining of liens upon property involved, and similar services. The information which he may communicate by his findings in such cases, upon the evidence presented to him, is merely advisory to the court, which it may accept and act upon or disregard, in whole or in part, according to its own judgment as to the weight of the evidence. * * * "It is not within the general province of a master to pass upon all the issues in an equity case, nor is it competent for the court to refer the entire decision of a case to him without the consent of the parties. It cannot, of its own see Briggs v. Neal, 120 Fed. 224, 56 C. C. A. 572 ; Quinton v. Neville, 154 Fed. 432, 83 C. C. A. 252. See "Equity," Dec. Dig. (Key-No.) 393; Cent. Dig. 852, 853. i* Finance Committee of Pennsylvania v. Warren, 82 Fed. 525, 27 C. C. A. 472. See "Equity," Dec. Dig. (Key-No.) 39 It; Cent. Dig. S57-859. is 129 U. S. 512, 9 Sup. Ct. 355, 32 L. Ed. 764. See, also, Davis v. Schwartz, 155 U. S. 631, 15 Sup. Ct. 237, 39 L. Ed. 289 ; Jefferson Hotel Co. v. Brumbaugh, 168 Fed. 867, 94 C. C. A. 279. See "Equi- ty," Dec. Dig. (Key-No.) 409; Cent. Dig. 904, 920-923. 167) BEFERENCES 455 motion, or upon the request of one party, abdicate its duty to determine by its own judgment the controversy present- ed, and devolve that duty upon any of its officers. But when the parties consent to the reference of a case to a master or other officer to hear and decide all Jhe issues therein, and report his findings, both of fact and of law, and such reference is entered as a rule of the court, the master is clothed with very different powers from those which he exercises upon ordinary references, without such consent, and his' determinations are not subject to be set aside and disregarded at the mere discretion of the court. A reference, by consent of parties, of an entire case, for the determination of all its issues, though not strictly a submission of the controversy to arbitration a proceeding which is governed by special rules is a submission of the controversy to a tribunal of the parties' own selection, to be governed in its conduct by the ordinary rules applicable to the administration of justice in tribunals established by law. Its findings, like those of an independent tribunal, are to be taken as presumptively correct subject, indeed, to be reviewed under the reservation contained in the con- sent and order of the court, when there has been manifest error in the consideration given to the evidence, or in the application of the law, but not otherwise." But where the master is appointed otherwise than by consent, and only special questions are referred to him, his findings, while strong, are not conclusive. There is always a presumption in favor of such findings, as he has had the opportunity of seeing the witnesses themselves, and has other facilities for judging of the value of their testimony which are not available to the court. But in such case they can be questioned with some show of success. 19 iBosworth v. Hook, 77 Fed. 686, 23 C. C. A. 404; Girard Life Ins., Annuity & Trust Co. v. Cooper, 162 U. S. 529, 16 Sup. Ct. S79, 40 L. Ed. 1062 ; Blassengame v. Boyd, 178 Fed. 1, 101 C. C. A. 129. 21 Ann. Cas. 800. See "Equity," Dec. Dig. (Key-No.) 409; Cent. Dig. 904, 920-923. 456 PROCEDURE ORIGINAL JURISDICTION (Ch. 20 ' A master, in exercising a reference, may take testimony outside of the district. 17 When the master's report is completed and filed in the clerk's office, the parties have twenty days therefrom for the purpose of filing exceptions. 18 Great ca're is requisite in the preparation of these excep- tions. Exceptions to questions of fact cannot be taken at all unless the evidence is sent up with the report. 19 Nor can they be first taken in the appellate court. 20 They must be specific, must raise clearly defined issues, and, when to questions of fact, they should refer to the part of the testimony relied on to set the finding aside. 21 The proper practice in reference to the preparation of ex- ceptions is for the master, when he has completed his draft of report, and before he files it, to notify the different parties interested to appear before him, and then to submit it to them. When they so appear, they should point out to him the parts in it in which they think he is in error, so as to give him the opportunity of correcting it if he sees fit; and he should embody in his report a statement that the parties had excepted to certain parts. This procedure is rendered necessary by the line of decisions which hold that matters not brought to the attention of the master can- not be made the subject of exception. 22 IT Consolidated Fastener Co. v. Columbian Fastener Co. (C. C.) 85 Fed. 54. See "Equity," Dec. Dig. (Key-No.) 395; Cent. Dig. 854. is Rule 66. See "Equity," Dec. Dig. (Key-No.) 410; Cent. Dig. 905-919. i SHEFFIELD & B. COAL, IRON & R. CO. v. GORDON, 151 U. S. 285, 14 Sup. Ct. 343, 38 L. Ed. 164. See "Equity," Dec. Dig. (Key-No.) 410; Cent. Dig. 905-919. 20 Topliff v. Topliff, 145 U. S. 156, 12 Sup. Ct. 825, 36 L. Ed. 658. See "Appeal and Error," Dec. Dig. (Key-No.) 266; Cent. Dig. 1552-1571. 21 SHEFFIELD & B. COAL, IRON & R. CO. v. GORDON, 151 U. S. 285, 14 Sup. Ct. 343, 38 L. Ed. 164; Stanton v. Alabama & C. Railroad Co., Fed. Cas. No. 13,296; Farrar v. Bernheim, 75 Fed. 136, 21 C. C. A. 264. See "Equity," Dec. Dig. (Key-No.) 410; Cent. Dig. 905-919. 22 Columbus S. & H. R. Co.'s Appeal, 109 Fed. 177, 48 C. C. A. 167) REFERENCES 457 If the master should disregard this practice, and file his report without giving the parties an opportunity, it would seem pretty clear, under the language of the sixty-sixth rule, that they could then file their exceptions anyhow. Exceptions are not necessary for the purpose of raising questions of law appearing on the face of the report. 23 The reports which can be excepted to within twenty days are those reports referred to the master in which he acts in a semijudicial capacity, but the rule does not apply to the right of a special master appointed to conduct sales of property. 24 An exception should not be used as a means of setting up a new defense in the case which has not already appear- ed in the pleadings. 25 The master, in the exercise of a sound discretion, may permit new evidence after he has submitted the draft of report to the parties, if he thinks the equities of the case call for it. 26 But after the report has been drafted it is not permissible for a petitioner to come in and amend his petition so as to set up a new ground of recovery thereon. 27 276 ; McMicken v. Perln, 18 How. 507, 15 L. Ed. 504 ; Gay Mfg. Co. v. Camp, 68 Fed. 67, 15 C. C. A. 226. See "Equity" Dec. Dig. (Key- A T o.) 410; Cent. Dig. 905-919. 23 Home Land & Cattle Co. v. McNamara, 111 Fed. 822, 49 C. C. A. 642 ; Burke v. Davis, 81 Fed. 907, 26 C. C. A. 675 ; Celluloid Mfg. Co. v. Cellonite Mfg. Co. (C. C.) 40 Fed. 476. See "Equity," Dec. Dig. (Key-No.) 410; Cent. Dig. 905-919. 24 Pewabic Min. Co. v. Mason, 145 U. S. 349, 12 Sup. Ct. 887, 36 L. Ed. 732. See "Equity," Dec. Dig. (Key-No.) 410; Cent. Dig. 905-919. 2 s City of New Orleans v. Warner, 180 U. S. 199, 21 Sup. Ct 353, 45 L. Ed. 493. See "Equity," Dec. Dig. (Key-No.) 410; Cent. Dig. 905-919. 2 e Central Trust Co. v. Richmond & D. R. Co. (C. C.) 69 Fed. 761. See "Equity," Dec. Dig. (Key-No.) 405; Cent. Dig. 880-885, 899. 2 T Central Trust Co. v. Marietta & N. G. Ry. Co. (C. C.) 75 Fed. 41. See "Equity," Dec. Dig. (Key-No.) 405; Cent. Dig. 880-885, 892. 458 PROCEDURE ORIGINAL JURISDICTION (Ch. 20 THE DECREE FORM OF 168. In the federal practice, it is not necessary, in prepar- ing the decree, to "bring the case on," as it is tech- nically called, by reciting all the previous proceed- ings in the case. A decree may simply commence as follows : "This cause came on to be heard at this term, and was argued by coun- sel; and thereupon, upon consideration thereof, it was ad- judged, ordered, and decreed as follows," etc. 28 SAME ITS ENFORCEMENT 169. Equity decrees are enforceable: (a) Against the property of the parties : (1) By writ of execution if the decree is for money; (2) By a sale of the property under a master com- ; missioner in other cases. (b) Against the parties themselves when the purpose of the suit is to compel some specific act by them. An equity decree may, under some circumstances, be en- forced against the property of the parties, and, under oth- ers, against the parties themselves, and it must be consid- ered under these two divisions. (a) Against Property of Parties Final process to execute a decree, if it is for money, is by writ of execution in the form used in the district court in actions of assumpsit. 29 If the decree is not simply for money, but contemplates the sale of property under control of the court, its method of enforcement is the appointment of a standing or special master to conduct the sale. It is usual to require a bond 2 s Rule 71. 2 9 Rule 8. 169) THE DECREE 459 of such an officer, but is not necessary, for frequently the provisions of the decree are such that the master does not handle the money, which is paid into court or otherwise provided for. 30 By Sale The act of March 3, 1893, 31 makes important provisions as to sales of property in the federal courts. It is as fol- lows: "Be it enacted," etc., "that all real estate or any interest in land sold under any order or decree of any United States court shall be sold at public sale at the courthouse of the county, parish, or city in which the property, or the greater part thereof, is located, or upon the premises, as the court rendering such order or decree of sale may direct. "Sec. 2. That all personal property sold under any order or decree of any court of the United States shall be sold as provided in the first section of this act, unless, in the opin- ion of the court rendering such order or decree, it would be best to sell it in some other manner. "Sec. 3. That hereafter no sale of real estate under any order, judgment, or decree of any United States court shall be had without previous publication of notices of such pro- posed sale being ordered and had once a week for at least four weeks prior to such sale in at least one newspaper printed, regularly issued and having a general circulation in the county and state where the real estate proposed to be sold is situated, if such there be. If said property shall be situated in more than one county or state, such notice shall be published in such of the counties where said prop- erty is situated, as the court may direct. Said notice shall, among other things, describe the real estate to be sold. The court may, in its discretion, direct the publication of so Seaman v. Northwestern Mutual Life Ins. Co., 86 Fed. 493, 30 C. C. A. 212. See "Equity," Dec. Dig. (Key-No.) 438; Cent. Dig. 1055. si 27 Stat. 751, c. 225 (U. S. Comp. St. 1901, p. 710). 460 PROCEDURE ORIGINAL JURISDICTION (Ch. 20 the notice of sale herein provided for to be made in such other papers as may seem proper." This statute has been construed to be intended as a safe- guard for the protection of the defendant, from which it follows that its provisions may be waived by him either expressly or impliedly. Hence when a sale was conducted not in strict accordance with its terms, but was confirmed after notice to the defendant, and no objection by him, it was held to be valid. 88 Sales of Real Estate On the other hand, as to sales of real estate, it has been held to be. mandatory, and to render a sale otherwise than at auction absolutely void and liable to repudiation by a purchaser even after confirmation. 88 It does not apply to sales of real estate in bankruptcy. 84 In conducting a judicial sale, the bid of an intending pur- chaser is a mere offer, and the court may accept it or not, as it sees fit. 35 A bidder at the judicial sale so far becomes a party to the cause that the court may proceed against him by rule to compel his compliance with his contract, and it is not nec- essary to bring a separate suit against him for the price. 36 It follows from the above that, as a bid is a mere offer, 82 Nevada Nickel Syndicate v. Nickel Co. (C. C.) 103 Fed. 391; Na- tional Nickel Co. v. National Nickel Syndicate (C. C.) 106 Fed. Ill ; Godchaux v. Morris, 121 Fed. 482, 57 C. C. A. 434. See "Judicial Sales," Dec. Dig. (Key-No.) 11; Cent. Dig. 25-30. 33 Cumberland Lumber Co. v. Tunis Lumber Co., 171 Fed. 352, 96 C. C. A. 244. See "Courts," Dec. Dig. (Key-No.) 355; Cent. Dig. 935, 936. 34 In. re Britannia Mining Co. (C. C. A.) 203 Fed. .450, reversing 197 Fed. 459 ; In re National Mining Exploration Co. (D. C.) 193 Fed. 232. These may be private. Ante, p. 162. See "Bankruptcy," Dec. Dig. (Key-No.) 261, 262. so Camden v. May hew, 129 U. S. 73, 9 Sup. Ct. 246, 32 L. Ed. 60S; State of Tennessee v. Quintard, 80 Fed. 829, 26 C. C. A. 165. See "Judicial Sales," Dec. Dig. (Key-No.) 20; Cent. Dig. 44. 3 Stuart v.,Gay, 127 U. S. 518, 8 Sup. Ct. 1279/32 L. Ed. 191; Camden v. Mayhew, 329 U. S. 73, 9 Sup. Ct. 246, 32 L. Ed. 60& See "Judicial Sales," Dec. Dig. (Key-No.) 28; Cent. Dig. 55. 169) THE DECBEE 461 the court may set the sale aside. But while it has this power, it is reluctant to use it, for few parties would at- tend judicial sales unless they have some assurance that the sale will be a finality. Hence mere inadequacy of price is not sufficient to set a sale aside, unless it is so great as to shock the conscience; but it may result in the court looking into the facts more closely, and finding other grounds for refusing to confirm the sale. 37 (&) Enforcement against the Parties Themselves Equity decrees are not only for the sale of property, but frequently for the purpose of compelling some specific act by the parties themselves. Hence, in enforcing such or ders, equity must have some power to proceed against the parties personally. This is provided by equity rule 8. It may Order Conveyances by the Party, or the Delivery up of Deeds or Other Documents Where a part of the property is within the jurisdiction of the court, it may transfer the title not only to the part within its jurisdiction, but also to that part without it, by ordering a master to make a deed to the property or by compelling the parties before the court to make the proper conveyances. 38 In this respect the federal courts have such an advantage over the local tribunals that the large railway foreclosures generally find their way into the former courts. By means of their jurisdiction over the parties, ancillary bills and 87 SCHROEDER v. YOUNG, 161 U. S. 334, 16 Sup. Ct 512, 40 L. Ed. 721 ; Magann v. Segal, 92 Fed. 252, 34 C. C. A. 323. See "Judi- cial Sales," Dec. Dig. (Key-No.) 39, 1,0; Cent. Dig. 77, 78. ss MULLER v. DOWS, 94 U. S. 444, 24 L. Ed. 207; Central Trust o. v. Wabash, St. L. & P. Ry. Co. (C. C.) 29 Fed. 618; Boston Safe Deposit & Trust Co. v. Bankers' & Merchants' Telegraph Co. (C. C.) 36 Fed. 289 ; Woodbury v. Allegheny & K. R. Co. (C. C.) 72 Fed. 371, Compare Fall v. Eastin, 215 U. S. 1, 30 Sup. Ct. 3, 54 L. Ed. 65, 23 L. R. A. (N. S.) 924, 17 Ann. Cas. 853; Jones v. Byrne (C. C.) 149 Fed. 457. See "Courts," Dec. Dig. (Key-No.) 263; Cent. Dig. 799; "Judgment," Dec. Dig. (Key-No.) 818. 462 PROCEDURE ORIGINAL JURISDICTION (Ch. 20 the extra territorial powers of receivers under section 56 of the Judicial Code, they can act more promptly, and with- in territory unknown to the local tribunals. Compelling Obedience to Order The federal courts will not only order conveyances, but they have summary means of compelling obedience to their orders. Under rule 8, if the defendant can be found, a writ of attachment will be issued against him, under which he will be held until he complies with the requirements of the court. If he cannot be found, a writ of sequestration may issue against his property, as a means of compelling obedience. And under the provisions of rule 9 a writ of assistance will lie to compel the delivery of possession. This writ is a proper means of putting a purchaser at a mortgage or other foreclosure sale in possession of the property purchased. 39 An ancillary bill may also be used for this purpose where a writ of assistance is unavailing. 40 Under rule 8, if the orders of the court are not complied with, it may appoint some other person to perform the act for and at the cost of the disobedient party. A court will also by its process compel restitution of property to the proper party. For instance, where a low- er court decided in favor of one party, and the case was afterwards reversed, it was held that the lower court could compel the party who had meanwhile collected the money to pay it back, although the ground of reversal was lack of jurisdiction in the lower court, for it retained at least enough jurisdiction to undo the wrong that it had done. 41 so Terrell v. Allison, 21 Wall. 289, 22 L. Ed. 634. See "Equity," Dec. Dig. (Key-No.) 489; Cent. Dig. 1056. 40 ROOT v. WOOL WORTH, 150 U. S. 401, 14 Sup. Ct. 136, 37 L, Ed. 1123; Alton Water Co. v. Brown, 166 Fed. 840, 92 C. C. A. 598. See "Equity," Dec. Dig. (Key-No.) 437; Cent. Dig. 1053, 1054. 41 Northwestern Fuel Co. v. Brock, 139 U. S. 216, 11 Sup. Ct. 523, 35 L. Ed. 151. See "Appeal and Error," Dec. Dig. (Key-No.) 1208; 170) THE DECREE 4C3 SAME REOPENING OF DECREE 170. Decrees may be reopened on motion, by petition for rehearing, and by bill of review, according to the nature of the grounds on which application is made. Equity rule 72 permits the correction of clerical errors in decrees at any time before the close of the term at which final decree is rendered, when the matter is brought to the attention of the court by petition, and in such case a re- hearing is not necessary. Equity rule 69 provides for the case of special rehearings, and is as follows: "Every petition for a rehearing shall contain the special matter or cause on which such rehear- ing is applied for, shall be signed by counsel, and the facts therein stated, if not apparent on the record, shall be veri- fied by the oath of the party, or by some other person. No rehearing shall be granted after the term at which the final decree of the court shall have been entered and recorded, if an appeal lies to the circuit court of appeals or the Su- preme Court. But if no appeal lies, the petition may be admitted at any time before the end of the next term of the court, in the discretion of the court." 42 It is not sufficient merely to file a petition during the term named by the above rule. Some action upon the pe- tition must be taken by the court in order to preserve the rights of the parties. 43 Cent. Dig. 4701-4709; "Equity," Dec. Dig. (Key-No.) 426; Cent. Dig. 999, 1000. 42 MOELLE v. SHERWOOD, 148 U. S. 21, 13 Sup. Ct 426, 37 L. Ed. 350. See "Equity," Dec. Dig. (Key-No.) 480; Cent. Dig. 1034-1047. 43 Graham v. Swayne, 109 Fed. 366, 48 C. C. A. 411. See "Equi ty," Dec. Dig. (Key-No.) 430; Cent. Dig. 1084-1047. 464 PROCEDURE ORIGINAL JURISDICTION (Ch. 20 Motion Under some circumstances, decrees may be reopened on motion. For instance, if the judge has been deceived by counsel into entering an order which he did not intend to enter, it may be set aside on motion. 44 This method may also be resorted to for the purpose of introducing new evidence where the circumstances of the case permit such introduction. 45 But such motion will not be entertained after the close of the term. 46 Bill of Review A common method of avoiding the effect of final decrees is by bill of review. This method, however, only lies for substantial error of law apparent on the face of the record, or for new matter arising since the entry of tne decree, or for newly discovered evidence which could not have been found and produced by the use of reasonable diligence be- fore the entry of the decree. 47 A bill of review for errors of law will not lie at any time after the period prescribed for an appeal, for the reason that there must be some finality to litigation, and the adop- 44 U. S. v. Williams, 67 Fed. 384, 14 C. C. A. 440. See "Equity," Dec. Dig. (Key-No.) 480; Cent. Dig. 1034-1047. 45 Campbell Printing-Press & Mfg. Co. v. Harden (C. C.) 70 Fed. 339. The court may do this during the term though an appeal has been taken, and may request the return of the record from the ap- pellate court for the purpose. Nutter v. Mossberg (C. C.) 118 Fed. 168. See "Equity," Dec. Dig. (Key-No.) 430; Cent. Dig. 1034- 1047. 46 McGregor v. Vermont Loan & Trust Co., 104 Fed. 709, 44 C. C. A. 146. See "Equity," Dec. Dig. (Key-No.) 430; Cent. Dig. 1034- 1047. 47 Hill v. Phelps, 101 Fed. 650, 41 C. C. A. 56; Acord v. Western Pocahontas Corporation (C. C.) 156 Fed. 989; Id., 174 Fed. 1019, 98 C. C. A. 625 ; Taylor v. Easton, 180 Fed. 363, 103 C. C. A. 509. See '^Equity," Dec. Dig. (Key-No.) 442, 445, 452; Cent. Dig. 1065- 1070, 1078-1094. 170) THE DECEEE 465 tion of the statutory limitations in regard to appeals fur- nishes a good point at which to draw the line. 48 The above rules in relation to reopening decrees relate, of course, to final decrees. Interlocutory decrees are al- ways considered in the breast of the court. "Blythe Co. v. Hlnckley, 111 Fed. 827, 49 C. 0. A. 647; Home St. Ry. Co. v. Lincoln, 162 Fed. 133, 89 C. C. A. 133. See "Equity," Dec. Dig. (Key-No.) f 452; Cent. Dig. 1101-1109. HUGHES FED.PB.(2o ED.) 30 466 APPELLATE JURISDICTION (Ch. 21 CHAPTER XXI APPELLATE JURISDICTION THE CIRCUIT COURT OF APPEALS. 171. The Appellate Courts. 172. The Circuit Court of Appeals Its Organization. 173. Jurisdiction of the Circuit Court of Appeals. 174. Same Cases Excepted from the Jurisdiction of the Circuit Court of Appeals. 175. Same Instances of the Jurisdiction. 176. Same Cases in which the Decision of the Circuit Court of Appeals is Final. 177. Same Power of Circuit Court of Appeals to Issue Auxiliary Writs. THE APPELLATE COURTS 171. The federal appellate jurisdiction is vested in the Su- preme Court of the United States and the circuit courts of appeals for the various circuits, and is di- vided between the latter class and the Supreme Court in accordance with regulations fixed by law. THE APPELLATE JURISDICTION AND ITS DISTRIBUTION AMONG THE APPELLATE COURTS (1) Original Organisation Until 1891 the appellate jurisdiction of the federal courts leaving out of view the courts of local interest, like those of the District of Columbia was vested in the circuit court and in the Supreme Court. The appellate jurisdiction of the former was restricted to a few special classes of cases, while that of the latter constituted the great mass of liti- gation that found its way into the federal courts. This system worked satisfactorily until the beginning of the Civil War. Up to that time a small limit as to amount was all that was necessary to enable the Supreme Court to 171) THE APPELLATE COUKTS 467 handle the appellate business which had been entrusted to it. There were many cases, however, as to which there was no appeal at all some of them of great importance, like criminal cases. The growth of the country, and especially the increasing importance of the federal courts due to the new questions springing out of the Civil War, brought to pass at its close that the Supreme Court could not attend to the appellate jurisdiction which had been conferred upon it. Long de- lays became inevitable, with their attendant inconvenience to the litigants. This was the subject of much discussion, and many plans of relief, but nothing definite was accom- plished until 1875, when an attempt was made to relieve the Supreme Court by raising the limit necessary in appeals to five thousand dollars, instead of two thousand, as had been the previous amount. This temporary expedient, however, failed of its purpose, for not only had the volume of litiga- tion immensely increased, but its character. The result was that the Supreme Court, in spite of its struggles against the ever accumulating mass of appeals, found itself hope- lessly in arrears, so that it required from three to five years to secure a hearing of an appeal. This was offering a pre- mium to delays, and put it in the power of litigants to force disadvantageous compromises on the successful par- ty, or keep him out of the fruits of his litigation, even in cases where the appeal had no merit. The discussion of the proper measure of relief continued, but resulted in nothing tangible until 1891. (2) Present Organisation By the act of March 3, 1891, l the whole system of appeals was remodeled, the jurisdiction formerly vested in the ap- pellate courts redistributed, and appeals given in classes where no appeal had been available. The object of the act is expressed in American Const. Co. v. Jacksonville, i 26 Stat. 826, c. 517 (U. S. Comp. St 1901, p. 547). 468 APPELLATE JURISDICTION (Ch. 21 T. & K. W. Ry. Co. 2 In it the Supreme Court said : "The primary object of this act, well known as a matter of pub- lic history, manifest on the face of the act, and judicially declared in the leading cases under it, was to relieve this court of the overburden of cases and of controversies, aris- ing from the rapid growth of the country, and the steady increase of litigation; and, for the accomplishment of this object, to transfer a large part of its appellate jurisdiction to the circuit courts of appeals thereby established in each judicial circuit, and to distribute between this court and those, according to the scheme of the act, the entire appel- late jurisdiction from the circuit and district courts of the United States. * * * The act has uniformly been so construed and applied by this court as to promote its gen- eral purpose of lessening the burden of litigation in this court, transferring the appellate jurisdiction in large classes of cases to the circuit court of appeals, and making the judgments of that court final, except in extraordinary cases." The scheme of this act was to establish in each judicial circuit a local appellate court, to be called the United States circuit court of appeals of that circuit, and to distribute the appellate jurisdiction between these local courts and the Supreme Court ; conferring upon the former the great mass of ordinary litigation, and reserving for the latter questions of general or national interest, with certain provisions in- tended to prevent divergence of decisions in the different circuits. The act with some changes since its passage, now con- stitutes the sixth chapter of the Judicial Code, covering sections 116-135, inclusive. 2 148 U. S. 372, 382, 13 Sup. Ct. 758, 37 L. Ed. 486. See "Courts," Dec. Dig. (Key-No.) 401; Cent. Dig. 1094. 172) CIRCUIT COURT OF APPEALS ORGANIZATION 469 THE CIRCUIT COURT OF APPEALS ITS ORGANIZATION 172. Each judicial circuit has an appellate court called the Circuit Court of Appeals. The judges who may hold this court are the Supreme Court justice for the particular circuit, the circuit judges for the circuit (and certain others by special assignment), and the district judges for the circuit when the circuit justice or circuit judges cannot sit; any two of these judges constituting a quorum. But no judge who sat on the trial court for the original trial of a cause or question can sit on the appel- late court for the trial of the appeal in that cause or question. Prior to this act, the judges competent to hold the cir- cuit courts, in addition to the district judges, were the Supreme Court justice assigned to that special circuit, and the circuit judge for that circuit. The act added a new cir- cuit judge to each circuit, on the idea that the court was, in the first instance, to be composed of the circuit justice for that circuit and the two circuit judges of the circuit ; but as it was realized that the attendance of the circuit justices would necessarily be uncertain, and, further, that the circuit judges would be frequently disqualified by rea- son of having sat in the circuit court, it was also provided that the district judges comprised within that circuit should be competent to sit upon this local appellate court. Two judges, however, constituted a quorum. Thus the court is a very changeable one a fact which has not been to its advantage, as unity of practice and decision is much harder with a changing court than with one composed all the time of the same members. Section 118 of the Judicial Code increased the number of circuit judges, except in the fourth circuit. And the five 470 APPELLATE JURISDICTION (Ch. 21 ^v new circuit judges appointed for the commerce court may also be assigned to the circuit courts of appeals under sec- tion 201 of the Judicial Code. The district judges are only called to sit, under the pro- visions of the third section of the act, when the associate justice and the circuit judges are not all present, and the district judges in such case may be called either by general or particular assignment. The third section, however, pro- vides that no justice or judge before whom a cause or ques- tion may have been tried or heard in a district court or ex- isting circuit court shall sit on the trial or hearing of such cause or question in the circuit court of appeals. In Moran v. Dillingham 3 the Supreme Court strongly intimates that under this provision a judge who has sat in the case is disqualified in the appellate court from hearing the case or any part of it; and, as the object of the act is to furnish an appellate court of judges absolutely uncom- mitted, this would certainly seem to be its natural con- struction. And it holds that a judge who has heard the case on its merits cannot sit in the appellate court on any question involved in it, and that a judge who has heard any single question in the case cannot sit in the appellate court on the hearing of that question, or any other question immediately dependent upon it, if the effect of such appeal may be that the case will be reversed, regardless of the merits of the decision. s 174 U. S. 153, 157, 19 Sup. Ct. 620, 43 L. Ed. 930. See, also, Rex- ford v. Brunswick-Balke-Collender Co., 228 U. S. 339, 33 Sup. Ct 515, 57 L. Ed. ; William Cramp & Sons Ship & Engine Bldg. Co. v. International Curtiss Marine Turbine Co., 228 U. S. 645, 33 Sup. Ct. 722, 57 L. Ed. . See "Judges," Dec. Dig. (Key-No.) 48; Cent. Dig. 220, 221. 173) JUBISDICTION OF CIRCUIT COURT OF APPEALS 471 JURISDICTION OF THE CIRCUIT COURT OF AP- PEALS 173. All final decisions of the district courts, except those special jurisdictional, international, and constitu- tional questions intrusted to the Supreme Court, are reviewable in the circuit court of appeals. The main jurisdiction of the court is denned by section 128 of the Judicial Code as follows: "The circuit courts of appeals shall exercise appellate jurisdiction to review by appeal or writ of error final de- cisions in the district courts, including the United States district court for Hawaii, in all cases other than those in which appeals and writs of error may be taken direct to the Supreme Court, as provided in section two hundred and thirty-eight, unless otherwise provided by law ; and, except as provided in sections two hundred and thirty-nine and two hundred and forty, the judgments and decrees of the circuit courts of appeals shall be final in all cases in which the jurisdiction is dependent entirely upon the opposite par- ties to the suit or controversy being aliens and citizens of the United States, or citizens of different states; also in all cases arising under the patent laws, under the copyright laws, under the revenue laws, and under the criminal laws, and in admiralty cases." Sections 239 and 240, alluded to above, were part of the original act of 1891, but have been carried into the chapter of the Judicial Code devoted to the Supreme Court. As they are necessary to understand the subject, they are set out in full, as follows : "Sec. 239. In any case within its appellate jurisdiction, as defined in section one hundred and twenty-eight, the cir- cuit court of appeals at any time may certify to the Supreme Court of the United States any questions or propositions of law concerning which it desires the instruction of that 472 APPELLATE JURISDICTION (Ch. 21 court for its proper decision; and thereupon the Supreme Court may either give its instruction on the questions and propositions certified to it, which shall be binding upon the circuit court of appeals in such case, or it may require that the whole record and cause be sent up to it for its consid- eration, and thereupon shall decide the whole matter in controversy in the same manner as if it had been brought there for review by writ of error or appeal. "Sec. 240. In any case, civil or criminal, in which the judgment or decree of the circuit court of appeals is made final by the provisions of this title, it shall be competent for the Supreme Court to require, by certiorari or otherwise, upon the petition of any party thereto, any such case to be certified to the Supreme Court for its review and determi- nation, with the same power and authority in the case as if it had been carried by appeal or writ of error to the Su- preme Court." No Monetary Amount As to the limits of this jurisdiction, it should be observed in the first place that there is no limit as to amount. The Paquete Habana, 4 which reviews the earlier statutes as to the amount required for jurisdiction, so holds. The reason is obvious. Under the present federal legislation nearly all the litigation in the district court has a limitation of $3,- 000, applicable to the court of first instance, and that is sufficiently high for purposes of an appeal. Cases involv- ing less than that amount are self-corrective, as appeals are not often taken by litigants, on account of the expense, where the amount involved is small. Subject-Matter Now, as to the subject-matter of the appellate jurisdic- tion, it covers the great mass of litigation; appeals to that court being the rule, and those to the Supreme Court * 175 U. S. 677, 20 Sup. Ct. 290, 44 L. Ed. 320. See, also, Kirby v. American Soda Fountain Co., 194 U. S. 141, 24 Sup. Ct. 619, 4S L. Ed. 911. See "Courts," Dec. Dig. (Key-No.) 405. 174) JURISDICTION OF CIRCUIT COURT OF APPEALS 473 the exception. The statute above quoted uses the language that the appeal shall exist "in all cases other than those in which appeals and writs of error may be taken direct to the Supreme Court as provided in section two hundred and thirty-eight, unless otherwise provided by law" ; and it has been held that this latter clause was a saving clause intend- ed to keep in force acts contemporaneous with this act or subsequent thereto, and not intended to apply to previous provisions as to appeals, as that construction would nullify the whole act. 8 SAME CASES EXCEPTED FROM THE JURISDIC- TION OF THE CIRCUIT COURT OF APPEALS 174. Jurisdictional, prize, and constitutional questions are intrusted to the Supreme Court, though the circuit courts of appeals may acquire cognizance of cases in these classes when questions included therein are connected in the case with other questions over which the latter court has jurisdiction. The statute above quoted excludes from the jurisdiction of the circuit court of appeals those cases which may be taken direct to the Supreme Court under section 238 of the Judicial Code. That section is as follows : "Appeals and writs of error may be taken from the dis- trict courts, including the United States district court for Hawaii, direct to the Supreme Court in the following cases : (a) In any case in which the jurisdiction of the court is in issue, in which case the question of jurisdiction alone B Louisville Public Warehouse Co. v. Collector of Customs, 49 Fed. 561, 1 C. C. A. 371; The Paquete Habana, 175 U. S. 677, 683, 20 Sup. Ct. 290, 44 L. Ed. 320. See "Courts," Dec. Dig. (Key-No.) { 405; Cent. Dig. '1099-1102. 474 APPELLATE JURISDICTION (Ch.21 shall be certified to the Supreme Court from the court be- low for decision. (b) From the final sentences and decrees in prize causes. (c) In any case that involves the construction or ap- plication of the Constitution of the United States. (d) In any case in which the constitutionality of any law of the United States, or the validity or construction of any treaty made under its authority is drawn in question. (e) And in any case in which the constitution or law of a state is claimed to be in contravention of the Constitution of the United States." Thus sections 128 and 238 of the Judicial Code distribute the jurisdiction between the circuit courts of appeals and the Supreme Court on the general idea of conferring all the jurisdiction upon the circuit court of appeals, except juris- dictional, constitutional, or international questions. Instances of Cases Cognisable by the Circuit Court of Appeals Questions of jurisdiction of the trial court are taken to the Supreme Court by certificate. The question what con- stitutes jurisdiction is well expressed by Judge Brown in an admiralty case. 6 In it he said: "Jurisdiction is the power to adjudicate a case upon the merits, and dispose of it as justice may require. As applied to a suit in rem for the breach of a maritime contract, it presupposes, first, that the contract sued upon is a maritime contract; and, second, that the property proceeded against is within the lawful custody of the court. These are the only requirements necessary to give jurisdiction. Proper cognizance of the parties and subject-matter being conceded, all other mat- ters belong to the merits." e The Resolute, 168 U. S. 437, 18 Sup. Ct. 112, 42 L. Ed. 533. Whether the giving of a forthcoming bond in an attachment case waives a special appearance and puts defendant in court is a ques- tion of jurisdiction. Olds v. Herman H. Hettler Lumber Co., 195 Fed. 9, 115 C. C. A. 91. See "Courts," Dec, Dig. (Key-No.) 1-5; Cent. Dig. 1-12. 174) JURISDICTION OF CIRCUIT COURT OF APPEALS 475 Accordingly he held that the question whether a seaman had a lien upon a vessel for wages accrued while a receiver was operating it, and whether he could assert such lien against the purchaser of the vessel after it had left the cus- tody of the receiver, was not a question of jurisdiction. So, too, the question whether the defendant in an involun- tary bankruptcy proceeding was engaged chiefly in farm- ing is not a question of jurisdiction, but a defense going to the merits. 7 So, too, in a proceeding by contempt, the question whether the facts shown made out a case of con- tempt is a question that went to the merits, and not to the jurisdiction, for the court had admitted jurisdiction over the person and over the subject-matter of contempts. 8 And the jurisdiction alluded to in this act means the jurisdiction in the case from which the appeal is taken, not the jurisdic- tion in another case out of which this case grew. 9 So, too, "jurisdiction" is not synonymous with "authority." For instance, a receiver filed a petition for the settlement of his accounts, and the payment of certain costs and expenses, which petition was denied. The contention that the court had no authority to require him to pay these costs and ex- penses was held not to be a jurisdictional question. 10 The jurisdiction referred to in this connection means the jurisdiction of the court as a federal court, not the general jurisdiction of the court as a court. 11 Hence, where the de- fense to a suit in equity is that the court had no jurisdiction T Denver First Nat. Bank v. Klug, 186 U. S. 202, 22 Sup. Ct. 899, 46 L. Ed. 1127. See "Courts," Dec. Dig. (Key-No.) 1, 385, 405. s O'Neal v. U. S., 190 U. S. 36, 23 Sup. Ct. 776, 47 L. Ed. 945. See "Courts," Dec. Dig. (Key-No.) 1; Cent. Dig. 1-10. Ex parte Lennon, 150 U. S. 393, 14 Sup. Ct. 123, 37 L. Ed. 1120. See "Courts," Dec. Dig. (Key-No.) 1; Cent. Dig. 1-10. 10 Chapman v. Atlantic Trust Co., 119 Fed. 257, 56 C. C. A. 61. See "Courts" Dec. Dig. (Key-No.) 1; Cent. Dig. 1-10. nU. S. v. Larkin, 208 U. S. 333, 28 Sup. Ct. 417, 52 L. Ed. 517; Fidelity Trust Co. v. Gaskell, 195 Fed. 865, 115 C. C. A. 527. See "Appeal and Error," Dec. Dig. (Key-No.) IT; Cent. Dig. 61; "Courts," Dec. Dig. (Key-No.) 405. 476 APPELLATE JURISDICTION (Ch. 21 because there was an adequate remedy at law, but there was no question of the jurisdiction as a federal court, this is not such a question of jurisdiction as goes to the Supreme Court under this section, but the appeal in such case would go to the circuit court of appeals. 12 Same Jurisdiction of Circuit Court of Appeals When Juris- dictional Questions Are Involved Notwithstanding the provision of section 238 that the ap- peal shall be taken to the Supreme Court when the jurisdic- tion of the court is in issue, there are many circumstances under which the circuit court of appeals can consider juris- dictional questions. This must first be discussed in connec- tion with appeals by defendant. Suppose that in such a case the defendant pleads to the jurisdiction, and his plea is decided against him. He cannot then appeal to the Su- preme Court, for that would not be a final decree. The court would overrule his plea, and proceed with the case. If it is finally decided against him on the merits, then he has an election either to take the jurisdictional question alone to the Supreme Court, and have it decided there, or to appeal the whole case from the final decree on the merits to the circuit court of appeals. In such case, the latter, having acquired jurisdiction by reason of the appeal of the whole case, can consider the question of jurisdiction of the lower court, for such question is necessarily involved in disposing of the whole case. In such case, however, it may, in its discretion, certify the question of jurisdiction up to the Supreme Court under section 239 giving it the right to ask the instruction of the Supreme Court on any question arising in a case; or the Supreme Court itself may issue its writ of certiorari to the circuit court of appeals, and bring up the whole case. 13 12 SMITH v. McKAY, 161 TL S. 355, 16 Sup. Ct. 490, 40 L. Ed. 731; Blythe v. Hinckley, 173 U. S. 501, 19 Sup. Ct. 497, 43 L. Ed. 783 ; Kansas City N. W. R. Co. v. Zimmerman, 210 U. S. 336, 28 Sup. Ct. 730, 52 L. Ed. 1084. See "Courts," Dec. Dig. (Key-No.) 405. v. Roff, 141 U. S. 661, 12 Sup. Ct. 118, 35 L. Ed. 893; 174) JURISDICTION OF CIRCUIT COURT OF APPEALS 477 The question of jurisdiction may also be complicated with other questions on appeals by the plaintiff, and under cer- tain circumstances the circuit court of appeals can consider such a question. Suppose the trial court decides that it has no jurisdiction. That is a final decree, and in such case the plaintiff must go straight to the Supreme Court on a certifi- cate of the jurisdictional question. Suppose, on the other hand, that the lower court decides in favor of its jurisdic- tion ; that the case proceeds on its merits, and is decided in favor of the defendant on the merits. In such case the plaintiff takes the whole case to the circuit court of appeals, for he cannot complain of a decision upholding the jurisdic- tion, and his only ground of complaint is the action of the court on the merits. In such case the circuit court of ap- peals may, in its discretion, certify the question of jurisdic- tion to the Supreme Court. Suppose, again, that the jurisdiction is sustained; that the- case goes on to trial, and is finally decided for the plain- tiff, but for a less amount than he claims. In such case, if the defendant has taken an appeal to the circuit court of appeals, the plaintiff can take a cross-appeal to the same court. If the defendant has gone to the Supreme Court on the jurisdictional question, the plaintiff can appeal inde- pendently to the circuit court of appeals ; but in such case the latter court will suspend action until the Supreme Court has decided the question of jurisdiction on the defendant's appeal. 14 The Supreme Court can consider the question of juris- diction in such case only on certificate, and, if the case has U. S. v. JAHN, 155 U. S. 109, 15 Sup. CL 39, 39 L. Ed. 87; Meeker v. Lehigh V. K. Co., 183 Fed. 548, 106 C. C. A. 94. Bee "Courts," Dec. Dig. (Key-No.) 405; Cent. Dig. 1108. i*U. S. v. JAHN, 155 U. S. 109, 15 Sup. Ct 39, 39 L. Ed. 87; Anglo-American Provision Co. v. Provision Co., 191 U. S. 376, 24 Sup. Ct. 93, 48 L. Ed. 228; Morrisdale Coal Co. v. Pennsylvania R. Co., 183 Fed. 929, 106 C. C. A. 269. See "Courts," Dec. Dig. (Key- No.) 405; Cent. Dig. 1103. 478 APPELLATE JURISDICTION (Ch. 21 been taken to the circuit court of appeals, the Supreme Court will not consider an appeal, though it would other- wise have jurisdiction by virtue of some of the other claus- es; for the policy of the law is in favor of only one appeal, and it will not permit separate appeals to the circuit court of appeals and the Supreme Court. 15 Same Course of Appeal when Other Classes of Section Are in Issue The only class of the section which requires a certificate taking up a single question is that relating to jurisdiction. In the other classes named, the whole case goes up. Hence the principles which regulate the course of appeal in these cases are a little different from those already discussed. In the first place, if the plaintiff's own pleading shows that the case turned upon any of the questions named in the sec- tion as, for instance, a federal constitutional question the appeal must go to the Supreme Court alone. 16 It is, however, frequently the case that the jurisdiction is invoked in the first place on one ground, and that questions of this character subsequently arise. For instance, suppose the plaintiff bases his right of suit in the first instance in his pleadings on the ground of diverse citizenship. In such case, under section 128, the circuit court of appeals, if that were the only question involved, would have final jurisdic- tion. But suppose the defendant in such case raises a fed- eral constitutional question in his plea or answer, or such a question arises in some subsequent stage of the case. Under such circumstances, the case could be taken to the circuit court of appeals, because the original ground of ju- is ROBINSON v. CALDWELL, 165 TJ. S. 359, 17 Sup. Ct. 343, 41 L. Ed. 745. Where the sole question decided in the lower court is one of jurisdiction, a petition for a writ of error and allowance of same on that sole ground is equivalent to a certificate. TL S. v. Larkin, 208 U. S. 333, 28 Sup. Ct. 417, 52 L. Ed. 517. See "Courts," Dec. Dig. (Key-No.) 385, 405. i6 Union & Planters' Bank v. Memphis, 189 U. S. 71, 23 Sup. Ct. 604, 47 L. Ed. 712; Spreckels Sugar Refining Co. v. McClain, 192 U. S. 397, 24 Sup. Ct. 376, 48 L. Ed. 496. See "Courts," Dec. Dig^ (Key-No.) 382; Cent. Dig. 1019, 1020. 175) JURISDICTION OF CIRCUIT COURT OF APPEALS 479 risdiction was diverse citizenship, or it could be taken first to the Supreme Court, if this subsequent question was a pivotal question in the case, but the litigant cannot do both, one appeal being his limit. 17 If, however, the question is a different one from those enumerated in section 238 as, for instance, a case turning upon conflicting state land grants the appeal is to the circuit court of appeals alone. 18 But if the jurisdiction in the first instance was not based solely on diverse citizenship, the decision in the circuit court of appeals is not final. 19 If the constitutional ques- tion on which the jurisdiction of the trial court is invoked is decided in plaintiff's favor, but the main case against him, he must appeal to the circuit court of appeals, not to the Supreme Court, for an appeal by him in such case would involve no constitutional question. 20 SAME INSTANCES OF THE JURISDICTION 175. The following are important instances in which the circuit court of appeals exercises appellate juris- diction : (a) Certain jurisdictional, constitutional or treaty ques- tions not jurisdictional, under the circumstances just discussed. IT American Sugar Refining Co. v. New Orleans, 181 U. S. 277, 21 Sup. Ct 646, 45 L. Ed. 859; HUGULEY MFG. CO. v. GALETON COTTON MILLS, 184 U. S. 290, 22 Sup. Ct 452, 46 L. Ed. 546; Ayres v. Polsdorfer, 187 U. S. 585, 23 Sup. Ct. 196, 47 L. Ed. 314 ; Watkins v. King, 118 Fed. 524, 55 C. C. A. 290. See "Courts," Dec. Dig. (Key-No.) 405. is Ayres v. Polsdorfer, 187 U. S. 585, 23 Sup. Ct 196, 47 L. Ed. 314. See "Courts," Dec. Dig. (Key-No.) 385, 405. i HUGULEY MFG. CO. v. GALETON COTTON MILLS, 184 U. S. 290, 22 Sup. Ct 452, 46 L. Ed. 546 ; Northern Pac. R. Co. v. Soder- berg, 188 U. S. 526, 23 Sup. Ct 365, 47 L. Ed. 575 ; Spreckels Sugar Refining Co. v. McClain, 192 U. S. 397, 24 Sup. Ct 376, 48 L. Ed. 496. See "Courts," Dec. Dig. (Key-No.) S85, 405. 20 Anglo-American Provision Co. v. Provision Co. No. 1, 191 U. S. 376, 24 Sup. Ct 93, 48 L. Ed. 226. See "Courts," Dec. Dig. (Key-No^ 385, 405. 480 APPELLATE JURISDICTION (Ch. 21 (b) Criminal cases. (c) Habeas corpus cases. (d) Bankruptcy cases. (e) Claims against the United States. (f ) Suits by the United States. (g) Interstate Commerce Commission cases, (h) Decisions of territorial courts. (i) Cases depending on diverse citizenship. (j) Cases involving patent laws. (k) Cases involving revenue laws. (1) Admiralty cases. In any of the above named instances the appeal may be to the Supreme Court of the United States when any of the questions mentioned in section 238 is in- volved in the case. In bankruptcy matters the circuit court of appeals has a general supervisory appellate jurisdiction over the lower courts in matters of law. It has appellate jurisdiction by appeal or writ of error. (a) From a judgment adjudging or refusing to adjudge the defendant a bankrupt ; (b) From a judgment granting or denying a discharge; (c) From a judgment allowing or rejecting a debt or claim of five hundred dollars or over. Jurisdiction over Criminal Cases The act, as originally drawn, gave jurisdiction both over cases of conviction of capital crimes and of infamous of- fenses. This was amended by the act of January 20, 1897. 21 But section 128 of the Judicial Code restored the jurisdic- tion of the circuit court of appeals over all criminal cases. In these cases the only method of reviewing the decision of the trial court is by writ of error, and the only questions reviewable are questions of law. 22 21 29 Stat. 492, c. 68 (U. S. Comp. St. 1901, p. 556). 22 Bucklin v. U. S., 159 U. S. 680, 16 Sup. Ct 182, 40 L. Ed. 304. See "Courts," Dec. Dig. (Key-No.) 405; Cent. Dig. 1101. 175) JURISDICTION OF CIRCUIT COURT OF APPEALS 481 Appeals in Habeas Corpus Cases Under sections 763 and 764 of the Revised Statutes, 23 the appeal from a district court decision in a habeas corpus case went to the circuit court, and the appeal from a cir- cuit court decision went to the Supreme Court. By the act of March 3, 1891, as has been seen, the appellate jurisdic- tion of the circuit court was abolished ; and consequently appeals in habeas corpus cases, both from the district court and the circuit court, went, as a rule, to the circuit court of appeals. Then the abolition of the circuit court by the Judicial Code leaves only the district court to consider. In such cases pending in the district court, an appeal would lie not only from an order of the court, but also from an or- der of the judge at chambers. 24 But while, as stated above, appeals in habeas corpus cas- es, in the absence of special grounds of jurisdiction, go to the circuit court of appeals, they would go to the Supreme Court if the case turned on any one of the classes set forth in section 238 of the Judicial Code, above quoted ; that is, cases involving jurisdictional questions and certain federal questions. The result is that many of these cases neces- sarily go to the Supreme Court, for the classes of habeas corpus cases of which federal courts have jurisdiction are composed largely of cases involving such questions, as will be seen by reference to section 753 of the Revised Stat- utes. 25 The method of review is appeal, not writ of error. 20 as u. S. Comp. St. 1901, pp. 594, 595. 24 Webb v. York, 74 Fed. 753, 21 C. C. A. 65. See "Courts," Dec. Dig. (Key-No.) 405; Cent. Dig. 1099. 25U. S. Comp. St. 1901, p. 592; Ex parte Lennon, 150 U. S. 393. 14 Sup. Ct. 123, 37 L. Ed. 1120; Craemer v. State, 168 U. S. 124, 18 Sup. Ct. 1, 42 L. Ed. 407; Rice v. Ames, 180 U. S. 371, 21 Sup. Ct. 406, 45 L. Ed. 577; Dimmick v. Tompkins, 194 U. S. 540, 24 Sup. Ct. 780, 48 L. Ed. 1110 ; Pettit v. Walshe, 194 U. S. 205, 24 Sup. Ct. 657, 48 L. Ed. 938. See "Courts," Dec. Dig. (Key-No.) 405; Cent. Dig. 1099; "Habeas Corpus," Dec. Dig. (Key-No.) 113. 2 Fisher v. Baker, 203 U. S. 174, 27 Sup. Ct 135, 51 L. EdL 142. HUGHES FED.PB.(2o ED.) 31 482 APPELLATE JURISDICTION (Ch. 21 Appeals in Bankruptcy Quite an extensive jurisdiction is vested in the circuit court of appeals by virtue of the provisions of the bankrupt law. Sections 24 and 25 of that act 27 provide as follows : "Sec. 24 (a) The Supreme Court of the United States, the circuit courts of appeals of the United .States, and the supreme courts of the territories, in vacation in chambers and during their respective terms, as now or as they may be hereafter held, are hereby invested with appellate juris- diction of controversies arising in bankruptcy proceedings from the courts of bankruptcy from which they have appel- late jurisdiction in other cases. The Supreme Court of the United States shall exercise a like jurisdiction from courts of bankruptcy not within any organized circuit of the Unit- ed States and from the supreme court of the District of Columbia. "(b) The several circuit courts of appeal shall have ju- risdiction in equity, either interlocutory or final, to super- intend and revise in matter of law the proceedings of the several inferior courts of bankruptcy within their jurisdic- tion. Such power shall be exercised on due notice and pe- tition by any party aggrieved. "Sec. 25 (a) That appeals, as in equity cases, may be tak- en in bankruptcy proceedings from the courts of bankrupt- cy to the circuit court of appeals of the United States, and to the supreme court of the territories, in the following cas- es, to wit, "(1) From a judgment adjudging or refusing to adjudge the defendant a bankrupt; "(2) From a judgment granting or denying a discharge; and "(3) From a judgment allowing or rejecting a debt or claim of five hundred dollars or over. Such appeal shall be 7 Ann. Cas. 1018 ; Wong Heung v. Elliott, 179 Fed. 110, 102 C. C. A. 408. See "Courts," Dec. Dig. (Key-No.) 405; Cent. Dig. 1099; "Habeas Corpus," Dec. Dig. (Key-No.) 113. 27 U. S. Comp. St. 1901, pp. 3431, 3432.* 175) JURISDICTION OF CIRCUIT COURT OF APPEALS 483 taken within ten days after the judgment appealed from has been rendered, and may be heard and determined by the appellate court in term or vacation, as the case may be. * * * Same Supervisory Review It will be seen from these sections that there are two methods of reviewing the action of the lower court in the circuit court of appeals one by the last paragraph of sec- tion 24, which is an informal supervisory power of review, and the other under the provisions of section 25, which is a formal appeal in the limited cases therein specified. Considering the supervisory power first, it appears that only matters of law can be reviewed under this proceed- ing. 28 In such cases the decision of the circuit court of appeals is final, subject only to the issue of a certiorari pro- vided by the act of March 3, 1891. 29 This right of super- vision, however, extends only to bankruptcy proceedings proper. 30 A plenary suit by the trustee against third par- ties is not such an order of administration, but is a separate suit, and is not reviewable by this process. 31 On the other hand, a claim of a third party against a fund in the hands of a trustee is a bankruptcy matter, and is reviewable as 2 s Mueller v. Nugent, 184 U. S. 1, 22 Sup. Ct. 209, 46 L. Ed. 405; ELLIOTT v. TOEPPNER. 187 U. S. 327, 23 Sup. Ct. 133, 47 L. Ed. 200 ; In re EGGERT, 102 Fed. 735, 43 C. C. A. 1. See "Bankruptcy," Dec. Dig. (Key-No.) //-}/, 449, 456. 29 HOLDEN v. STRATTON, 191 U. S. 115, 24 Sup. Ct. 45, 48 L. Ed. 116. See "Bankruptcy," Dec. Dig. (Key-No.) 448, 441, 449. so HOLDEN v. STRATTON, 191 U. S. 115, 24 Sup. Ct 45, 48 L. Ed. 116; First Nat. Bank v. Chicago Title & Trust Co., 198 U. S. 280, 25 Sup. Ct. 693, 49 L. Ed. 1051. The character of questions in- cluded in bankruptcy proceedings proper is well explained by Judge Lurton in Re Mueller, 135 Fed. 711, 68 C. C. A. 349. See, also. Barnes v. Pampel, 192 Fed. 525, 113 C. C. A. 81. See "Bankruptcy," Dec. Dig. (Key-No.) 440, W- si In re Loving, 224 U. S. 183. 32 Sup. Ct. 446, 56 L. Ed. 725; In re Hamilton Automobile Co., 198 Fed. 856, 117 C. C. A. 135. See "Bankruptcy," Dec. Dig. (Key-No.) 440, 441. 484 APPELLATE JURISDICTION (Ch. 21 far as any legal questions are involved. 32 So, too, an order entered by the bankruptcy court on petition of a creditor to sell the bankrupt's homestead is reviewable as an admin- istration order. 33 The "proceedings of the several inferior courts of bank- ruptcy within their jurisdiction" mean the proceedings of the district courts within the territorial jurisdiction of the corresponding Circuit Court of Appeals. 34 As illustrations of the legal questions reviewable, it has been held that an order requiring a bankrupt to transfer a liquor license, which is transferable, with the consent of certain governmental authorities, under the state law, can be reviewed as to questions of law in this proceeding. 35 So a claim of ownership to funds in trustee's hands is re- viewable as to matters of law. 36 Where the question involved is close on the border line between the cases reviewable under this section and the cases appealable under the next section, the party may take both proceedings, and the appellate court will act upon the one which it considers the proper one. 37 The question whether a creditor can amend his specifications in opposi- tion to the bankrupt's discharge is reviewable under this provision. 38 As to the form of such a petition, it should 82Antigo Screen Door Co., 123 Fed. 249, 59 C. C. A. 248. See "Bankruptcy," Dec. Dig. (Key-No.) $ 440, 441- ss Ingram v. Wilson, 125 Fed. 913, 60 C. C. A. 618. See "Bank- ruptcy," Dec. Dig. (Key-No.) 440, 441. s* In re Seebold, 105 Fed. 910, 45 C. C. A. 117. See "Bankruptcy," Dec. Dig. (Key-No.) 441, 451. s s Fisher v. Cushman, 103 Fed. 860, 43 C. C. A. 381, 51 L. R. A. 292. See "Bankruptcy," Dec. Dig. (Key-No.) 440, 441, 451. seHutchinson v. Le Roy, 113 Fed. 202, 51 C. C. A. 159; Same v. Otis, 115 Fed. 937, 53 C. C. A. 419; Id., 190 U. S. 552, 23 Sup. Ct. 778, 47 L. Ed. 1179. See "Bankruptcy," Dec. Dig. (Key-No.) 440, W- 87 in re Worcester County, 102 Fed. 808, 42 C. C. A. 637. Bee "Bankruptcy," Dec. Dig. (Key-No.) 440, 441- as Goodman v. Curtis, 174 Fed. 644, 98 C. C. A. 398. See "Bank- ruptcy," Dec. Dig. (Key-No.) 440, 441. 175) JURISDICTION OF CIBCUIT COURT OF APPEAU3 485 state the question involved, and be accompanied by enough of the record in the case to show how it arose and was de- termined. 89 Such petition should be filed in the circuit court of ap- peals, and cannot be allowed, nor the proceeding matured, by the district judge. 40 Same Procedure by Appeal or Writ of Error Although the language of section 25 speaks simply of appeals, the Supreme Court has held that a writ of error is proper when the proceeding appealed from in its nature should be taken up by such a writ, and the thirty-seventh 41 bankruptcy order provides: "In proceedings in equity, in- stituted for the purpose of carrying into effect the provi- sions of the act, or for enforcing the rights and remedies given by it, the rules of equity practice established by the Supreme Court of the United States shall be followed as nearly as may be. In proceedings at law, instituted for the same purpose, the practice and procedure in cases at law shall be followed as nearly as may be. * * * " Accordingly, when the procedure has involved a jury trial, as is authorized by some provisions of the bankrupt law, it necessarily follows that there must be bills of ex- ceptions, and that such a case shall be taken to the circuit court of appeals, not by appeal, but by writ of error. 42 The appealable cases in section 25 are, as appears from the quotation above, only three in number. The first of these is from a judgment adjudging or refusing to adjudge the defendant a bankrupt. 43 The second is from a judgment granting or denying a Courier Journal Job Printing Co. v. Schaefer-Meyer Brewing Co., 101 Fed. 699, 41 C. C. A. G14 ; In re Tax t, 133 Fed. 511, 66 C. C. A. 385. See "Bankruptcy" Dec. Dig. (Key-No.) 440, 444. 40 In re Williams (D. C.) 105 Fed. 906. See "Bankruptcy," Dec. Dig. (Key-No.) 444- 41 89 Fed. xiv, 32 C. C. A. xxxvi; 18 Sup. Ct. Ix. Duncan v. Landis, 106 Fed. 839, 45 C. C. A. 666; ELLIOTT v. TOEPPNER, 187 U. S. 327, 23 Sup. Ct 133, 47 L. Ed. 200. See "Bankruptcy," Dec. Dig. (Key-No.) 449; Cent. Dig. 915. ELLIOTT v. TOEPPXER, 187 U. S. 327, 23 Sup. Ct. 133, 47 486 APPELLATE JURISDICTION (Ch. 21 discharge. In re Adler 44 holds that under this provision an appeal from an order refusing to confirm or confirm- ing a composition will not lie; but in U. S. v. Ham- mond 45 the contrary opinion was reached, on the ground that the action of the court in that particular settled the question of discharge, and this seems to be based on better reason. The usual presumptions in favor of the action of an inferior court prevail on such appeals. Where a dis- charge has been refused on the ground of fraud, the error must be manifest before there will be a reversal. 46 The third and much the most usual class of appeals is from judgments allowing or rejecting a debt or claim of five hundred dollars or over. This means a money demand, not a demand for specific property. 47 If the only question about the debt was its priority, and not its validity, the procedure would have to be by re- view; 48 but, when an appeal is taken from the allowance or rejection of such a claim, the court can, as incidental to that appeal, consider the question of rank or lien. 49 The appeal may be taken by the trustee from an order denying his motion to expunge a claim. 50 In one case 51 L. Ed. 200. See "Bankruptcy" Dec. Dig. (Key-No.) 449, 455; Cent. Dig. 916. 44 (D. C.) 103 Fed. 444. See "Bankruptcy," Dec. Dig. (Key-No.) 455; Cent. Dig. 916. 45104 Fed. 862, 44 C. C. A. 229. See "Bankruptcy," Dec. Dig. (Key-No.) 455; Cent. Dig. 916. 46 Osborne v. Perkins, 112 Fed. 127, 50 C. C. A. 158. See "Bank- ruptcy," Dec. Dig. (Key-No.) 467; Cent. Dig. 929. * 7 in re Whitener, 105 Fed. 180, 44 C. C. A. 434; HOLDEN v. STRATTON, 191 U. S. 115, 24 Sup. Ct. 45, 48 L. Ed. 116. See "Bankruptcy," Dec. Dig. (Key-No.) 455; Cent. Dig. 916. 48 in re Worcester County, 102 Fed. 808, 42 C. C. A. 637. See "Bankruptcy," Dec. Dig. (Key-No.) 440; Cent. Dig. 915. 4 Cunningham v. Insurance Bank, 103 Fed. 932, 43 C. C. A. 377; Hutchiuson v. Otis, 190 U. S. 552, 23 Sup. Ct. 778, 47 L. Ed. 1179. See "Bankruptcy," Dec. Dig. (Key-No.) 461; Cent. Dig. 929. so Livingstone v. Heineman, 120 Fed. 786, 57 C. C. A. 154. See "Bankruptcy," Dec. Dig. (Key-No.) 457; Cent. Dig. 917. si In re Roche, 101 Fed. 956, 42 C. C. A. 115. See "Bankruptcy," Dec. Dig. (Key-No.) 457; Cent. Dig. 917. 175) JURISDICTION OF CIRCUIT COURT OF APPEALS 487 it was held that any party affected, including a creditor whose dividend was diminished, could take an appeal ; but the better opinion is that the trustee represents the credi- tors in such a matter, and that only he can take such an appeal, the remedy of objecting creditors being an applica- tion to the court to require an appeal by the trustee. 52 The right of appeal under this section does not exist in contests over an insurance policy claimed to be exempt, as that is riot one of the enumerated classes. 53 Same Claims against the United States under Section 24, Paragraph W, of the Judicial Code In the classes therein enumerated, the course of appeal is to the circuit court of appeals, unless one of the ques- tions named in section 238 of the Judicial Code exists, in which case it goes to the Supreme Court. 84 This question has been touched upon in the chapter which discusses the jurisdiction of the courts in suits against the United States. 85 Suits by the United States Appeals in these cases also go to the circuit court of ap- peals. In U. S. v. American Bell Telephone Co., 80 which was a suit to cancel a patent, the Supreme Court held that the circuit court of appeals had appellate jurisdiction over such a case, though its decision would not be final, as the fact that the United States were parties gave another in- 52 Chatfleld v. O'Dwyer, 101 Fed. 797, 42 C. C. A. 30; Foreriian v. Burleigh, 109 Fed. 313, 48 C. C. A. 376 ; In re Mexico Hardware Co. (D. C.) 197 Fed. 650; In re Pittsburg Lead & Zinc Co. (D. C.) 198 Fed. 316. See "Bankruptcy," Dec* Dig. (Key-No.) 457; Cent. Dig. 917. 63 HOLDEN v. STRATTON, 191 U. S. 115, 24 Sup. Ct 45, 48 L. Ed. 116. See "Bankruptcy," Dec. Dig. (Key-No.) 455; Cent. Dig. 916.' 54 U. S. v. Harsha, 172 U. S. 567, 19 Sup. Ct. 294, 43 L. Ed. 556 ; U. S. v. Coudert, 73 Fed. 505, 19 C. C. A. 543 ; Coudert v. U. S., 175 U. S. 178, 20 Sup. Ct. 56, 44 L. Ed. 122. See "Bankruptcy," Dec. Dig. (Key-No.) 451-453; Cent. Dig. 914- 55 Ante, p. 190. so 159 U. S. 548, 16 Sup. Ct. 69. 40 L. Ed. 255. See "Courts," Dec. Dig. (Key-No.) 382, 406. 488 APPELLATE JURISDICTION (Ch. 2U dependent ground of jurisdiction, and prevented the case from turning simply upon the question that it was a suit under the patent laws. It was held in the same case that a suit to cancel a patent was not a suit under the patent laws in the sense in which it was used in section 6 of the act of March 3, 1891, now section 128 of the Judicial Code. Interstate Commerce Commission Cases Appeals by parties aggrieved under the provisions of this act also go to the circuit court of appeals, in the ab- sence of any special grounds of jurisdiction in the Supreme Court. 57 Appeals from Special Courts Under sections 128, 131, and 134 of the Judicial Code, the decisions of the district court for Hawaii, the United States court for China and the district court for Alaska are reviewable by the circuit court of appeals, subject to the provisions conferring jurisdiction on the Supreme Court in the special kind of questions which it is the policy of Congress to remit to that court. SAME CASES IN WHICH THE DECISION OF THE CIRCUIT COURT OF APPEALS IS FINAL 176. The decision of the circuit court of appeals is final in the following classes of cases on appeal: (a)' Cases depending on diverse citizenship. (b) Cases involving patent or copyright laws. (c) Cases involving revenue laws. (d) Criminal cases. (e) Admiralty cases. 67 Interstate Commerce Commission v. Atchison, T. & S. F. R. Co., 149 U. S. 264, 13 Sup. Ct. 837, 37 L. Ed. 727; Interstate Commerce Commission v. Baird, 194 U. S. 25, 24 Sup. Ct. 563, 48 L. Ed. 860 ; Mitchell Coal & Coke Co. v. Pennsylvania R. Co., 192 Fed. 475, 112 C. C. A. 637 ; A. J. Phillips Co. v. Grand Trunk Western R. Co., 195 Fed. 12, 115 C. C. A. 94. See "Courts," Dec. Dig. (Key-No.) 405; Cent. Dig. 1099. 176) JURISDICTION OF CIRCUIT COURT OF APPEALS 489 In the above classes of cases, however, the appeal may be to the Supreme Court of the United States when any of the questions mentioned in section 238 of the Judicial Code are involved. These are enumerated in section 128 of the Judicial Code, and are as follows: "In which the jurisdiction is dependent entirely upon the opposite parties to the suit or controver- sy, being aliens and citizens of the United States or citi- zens of different states ; also in all cases arising under the patent laws, under the copyright laws, under the revenue laws, and under the criminal laws and in admiralty cases." If, however, the pleadings show that the ground on which the case is based and on which it turned was a federal ques- tion, but not one of those enumerated in section 238, then the decision of the circuit court of appeals is not final. 58 But the mere fact that such a federal question might have been raised does not prevent the decision of the circuit court of appeals from being final when it was not actually raised. 50 If the jurisdiction of the lower court rests both on the diverse citizenship and the existence of a federal question, the jurisdiction of the circuit court of appeals is not final. 60 It frequently happens that jurisdiction would vest in the trial court in the first instance by reason of diverse citizenship, and that constitutional questions subsequently arise in the case. Under these circumstances, if the court 68 FLORIDA CENT. & P. R. CO. v. BELL, 176 TL S. 321, 20 Sup. Ct. 399. 44 L. Ed. 486. See "Courts," Dec. Dig. (Key-No.) 382, 405. 6 World's Columbian Exposition v. U. S., 56 Fed. 654, 6 C. C. A. 58; Empire State-Idaho Mining & Developing Co. v. Hanley, 205 U. S. 225, 27 Sup. Ct 476, 51 L. Ed. 779. See "Courts," Dec. Dig. (Key- No.) 382, 405. o Mississippi Railroad Commission v. Illinois Cent. R. Co., 203 U. S. 335, 27 Sup. Ct. 90, 51 L. Ed. 209; Railroad Commission of Ohio v. Worthington, 225 U. S. 101, 32 Sup. Ct. 653, 56 L. Ed. 1004. See "Courts," Dec. Dig. (Key-No.) 382, 405. 490 APPELLATE JURISDICTION (Ch. 21 acquired jurisdiction originally on the ground of diverse citizenship alone, an appeal will lie to the circuit court of appeals; and, if such an appeal is taken, the decision of that court is final. 61 The Supreme Court also, however, would have jurisdic- tion if a constitutional question should subsequently arise, though the jurisdiction originally vested on the ground of diverse citizenship ; for it could not have been the intent of Congress to deprive it of the right to pass upon such a question. The only qualification is that the litigant cannot take appeals to both courts. 62 A suit by a national bank against a citizen of another state depends on diverse citi- zenship, and the decision of the circuit court of appeals is final in such case. 63 Patent Cases This is one of the class in which the decision of the cir- cuit court of appeals is made final, but the simple fact that a patent may come before the court in litigation does not make the case a patent case under such circumstances. The cases included in this description have been described by the Supreme Court as follows : "Actions at law for infringe- ment, and suits in equity for infringement, for interference, and to obtain patents, are suits which clearly arise under the patent laws ; being brought for the purpose of vindicat- ing rights created by those laws, and coming strictly within the avowed purpose of the act to relieve this court of that i Colorado Cent. Consol. Min. Co. v. Turck, 150 TJ. S. 138, 14 Sup. Ct. 35, 37 L. Ed. 1030 ; Pope v. Louisville, N. A. & C. R. Co., 173 U. S. 573, 19 Sup. Ct. 500, 43 L. Ed. 814; Spencer v. Duplan Silk Co., 191 U. S. 526, 24 Sup. Ct. 174, 48 L. Ed. 287. See "Courts," Dec. Dig. (Key-No.) 382, 405. 62 Cincinnati, H. & D. Ry. Co. v. Thiebaud, 177 U. S. 615, 20 Sup. Ct. 822, 44 L. Ed. 911 ; American Sugar Refining Co. v. City of New Orleans, 181 U. S. 277, 21 Sup. Ct. 646, 45 L. Ed. 859. See "Courts," Dec. Dig. (Key-No.) 382, 405. 63 CONTINENTAL NAT. BANK V. BUFORD, 191 U. S. 119, 24 Sup. Ct. 54, 48 L. Ed. 119. See "Courts," Dec. Dig. (Key-No.) 382, 405. 176) JURISDICTION OF CIRCUIT COURT OF APPEALS 491 burden of litigation which operated to impede the disposi- tion of cases of peculiar gravity and general importance. We are of opinion that it is reasonable to assume that the attention of Congress was directed to this class of cases, and that the language was used as applicable only to them." 64 Accordingly it was held in the case from which the above quotation is taken that a suit by the United States to can- cel a patent as improperly issued was not a suit "arising under the patent laws," in the sense of this act. So, too, a suit to enjoin the collection of a state tax on a patent right was not a suit under the patent laws, but was a suit involving the validity of a state statute, and hence the ap- peal should be to the Supreme Court, and not to the cir- cuit court of appeals. 68 Revenue Laws In this class of cases, also, the decision of the circuit court of appeals is made final. A revenue law is defined by the Supreme Court as a law imposing duties on imposts or tonnage, or a law providing in terms for revenue; that is to say, a law which is directly traceable to the power grant- ed to Congress by section 8, art. 1, of the Constitution, "to lay and collect taxes, duties, imposts, and excises." 6. 71 71 Fed. 768, 18 C. C. A. 314. See, also, McClellan v. Garland, 217 U. S. 268, 30 Sup. Ct. 501, 54 L. Ed. 762. See "Courts," Dec. Dig. (Key-No.) 404- 72 85 Fed. 177, 29 C. C. A. 78. See, also, Vacuum Cleaner Co. v. Platt, 196 Fed. 398, 116 C. C. A. 220. See "Courts," Dec. Dig. (Key- No.) 404. "Travis County v. King Iron Bridge & Mfg. Co., 92 Fed. 690, 34 C. C. A. 620. See "Courts," Dec. Dig. (Key-No.) 404. 74 In re PAQUET, 114 Fed. 437, 52 C. C. A. 239. See "Courts," Dec. Dig. (Key-No.) 404. 75 Whitney v. Dick, 202 U. S. 132, 26 Sup. Ct. 584, 50 L. Ed. 963. See "Courts," Dec. Dig. (Key-No.) 404. 494 APPELLATE JURISDICTION (Ch. 22 CHAPTER XXII APPELLATE JURISDICTION (Continued) THE SUPREME COURT 178. The Supreme Court of- the United States Its Organization. 179. The Appellate Jurisdiction of the Supreme Court The Courts whose Decisions are Reviewable by the Supreme Court. 180. Appeals from the United States District Courts. 181. Appeals from the Circuit Courts of Appeals. 182. Appeals from Territorial Courts. 183. Appeals from the Court of Appeals of the District of Columbia. 184. Appeals from the Court of Claims. 185. Appeals from the Commerce Court. 186. Review of State Court Decisions. 187. Same Constitutionality. 188. Same The Proceedings Reviewable. 189. Same The Courts whose Decisions are Reviewable. 190. Same By Whom the Right of Review may be Invoked. 191. Same Character of Questions Reviewable. 192. Same How a Federal Question must be Raised or Shown by the Record. THE SUPREME COURT OF THE UNITED STATES ITS ORGANIZATION 178. The Supreme Court of the United States is the court exercising the highest powers of appellate jurisdic- tion; this jurisdiction comprising certain appeals from all of the other federal courts and from the state courts of last resort, according to regulations fixed by law. The Supreme Court consists of a chief justice of the Unit- ed States and eight associate justices, any six of whom constitute a quorum. The judges of the Supreme Court are appointed by the President of the United States, and hold office dur- ing good behavior. Under the chief justice, the 178) SUPREME COUET ORGANIZATION 495 associate justices take precedence according to the dates of their commissions, or, if their commis- sions are dated alike, according to their ages. In another connection the original jurisdiction of the Su- preme court has been discussed. It is now necessary to consider its appellate jurisdiction, which is far the most extensive body of law which it administers. Composition of the Supreme Court Section 215 of the Judicial Code provides: "The Su- preme Court of the United States shall consist of a chief justice of the United States and eight associate justices, any six of whom shall constitute a quorum." For a long time the court was composed of seven jus- tices, but this number was afterwards increased to nine, the present number. Under section 216, the associate jus- tices take precedence according to the dates of their com- missions ; if their commissions are dated alike, according to their ages. Sessions of the Supreme Court It is provided by section 230 of the Judicial Code that the court shall hold one term annually at the seat of gov- ernment, commencing on the second Monday in October, and such adjourned or special terms as it may find neces- sary for the dispatch of business. In actual practice, on account of the pressure of business upon it, the court is in almost continuous session from October until the early part of the following May; only adjourning occasionally, and using even those adjournments for the purpose of writ- ing up opinions in cases argued and submitted. Appellate Jurisdiction of the Supreme Court Sources and Regulation of The second paragraph of the second section of article 3 of the Constitution provides : "In all cases affecting ambassadors, other public minis- ters and consuls, and those in which a state shall be party, 496 APPELLATE JURISDICTION (Ch. 22 the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Con- gress shall make." Hence its original jurisdiction springs directly from the Constitution, but its appellate jurisdiction is subject to regulation by Congress. 1 THE APPELLATE JURISDICTION OF THE SU- PREME COURT THE COURTS WHOSE DECISIONS ARE REVIEWABLE BY THE SUPREME COURT 179. The Courts whose decisions are reviewable by the Su- preme Court of the United States under regula- tions fixed by law are: (a) The United States district courts. (b) The United States circuit courts of appeals. (c) The territorial courts, and courts of the dependen- cies. (d) The courts of the District of Columbia. (e) The court of claims. (f) The commerce court.* (g) State courts of last resort. APPEALS FROM THE UNITED STATES DISTRICT COURTS 180. The Supreme Court exercises appellate jurisdiction di- rectly over the district courts of the United States in the following cases : (a) When jurisdictional questions are involved. (b) Prize causes. i National Exchange Bank v. Peters, 144 IT. S. 570, 12 Sup. Ct. 767, 36 L. Ed. 545. See "Courts," Dec. Dig. (Key-No.) 380; Cent. Dig. 996. * Since abolished. See post, p. 701. 180) APPEALS FROM UNITED STATES DISTRICT COURTS 497 (c) Some criminal causes. (d) Constitutional or treaty questions, comprehending: (1) The construction or application of the federal Con- stitution ; (2) The constitutionality of a federal law; (3) The validity or construction of a treaty; (4) The constitutionality of a state law. (e) Suits by the United States under anti-trust legisla- tion. The most of the litigation in these courts is reviewable, as has been seen, by the circuit court of appeals, and the jurisdiction of the Supreme Court is the exception and not the rule; but, under section 238 of the Judicial Code, the latter has jurisdiction over the decisions of the district courts in exceptional cases of general importance. The section reads : "Appeals and writs of error may be taken from the district courts, including the United States dis- trict court for Hawaii, direct to the Supreme Court, in the following cases : In any case in which the jurisdiction of the court is in issue, in which case the question of jurisdiction alone shall be certified to the Supreme Court from the court below for decision ; from the final sentences and decrees in prize causes; in any case that involves the construction or application of the Constitution of the United States; in any case in which the constitutionality of any law of the United States, or the validity or construction of any treaty made un- der its authority is drawn in question; and in any case in which the constitution or law of a state is claimed to be in contravention of the Constitution of the United States." (a) Jurisdictional Questions The first paragraph of the act requires the appeal to go straight to the Supreme Court where the jurisdiction of the lower court is in issue, but in such case the court can only consider the question of jurisdiction, and not the case on the merits. In this respect this first class differs from the HUGHES FED.PB.(2o ED.) 32 498 APPELLATE JURISDICTION (Ch. 22 subsequent ones. In order to give the Supreme Court ju- risdiction over such a question, there must be a certificate of the court accompanying the appeal or writ of error, and without such certificate the court has no power to review even a question of jurisdiction. 2 This certificate must be made by the lower court during the term at which final judgment is rendered, and cannot be made at a subsequent term. 3 There is no specific form which this certificate must follow. It should be, in the main, similar to the old form adopted by the courts when certifying to the Supreme Court particular questions or propositions of law wherein they differed in opinion. 4 In no event can the Supreme Court be required, even where the case turned on a juris- dictional question, to search through the record and ex- hume it from a great mass of pleadings or rulings. 5 At the same time, there is no magic in the mere use of the word "certified," but anything which may present to the appel- late court the single, well-defined question of jurisdiction, severed from all collateral questions, will be sufficient. For instance, in one case the parties who had obtained a receiv- er in a state court applied to a federal court to discharge a receiver which the latter court had appointed; claiming that the state court had first obtained jurisdiction over the 2 ROBINSON v. CALDWELL, 165 U. S. 359, 17 Sup. Ct 343, 41 L. Ed. 745 ; ante, p. 477. A bill of exceptions may be used to pre- sent the question if it does not otherwise appear from the record, but, under well-known principles of pleading, is unnecessary it" the fact otherwise appears from the record. C. H. Nichols Lumber Co. v. Franson, 203 U. S. 278, 27 Sup. Ct. 102, 51 L. Ed. 181 ; Frederic L. Grant Shoe Co. v. W. M. Laird Co., 212 U. S. 448, 29 Sup. Ct. 332, 53 L. Ed. 591. See "Courts," Dec. Dig. (Key-No J 385; Cent. Dig. 1013. s COLVIN v. JACKSONVILLE, 158 U. S. 456, 15 Sup. Ct. 866, 39 L. Ed. 1053. This case contains a good form of certificate of a jurisdictional question. See "Courts" Dec. Dig. (Key-No.) 385; Cent. Dig. 1013. 4 Maynard v. Hecht, 151 U. S. 324, 14 Sup. Ct. 353, 38 L. Ed. 179. See "Courts," Dec. Dig. (Key-No.) 385; Cent. Dig. 1013. 6 Van Wagenen v. Sewall, 160 U. S. 369, 36 Sup. Ct 370, 40 L. Ed. 460. See "Courts," Dec. Dig. (Key-No.) 585; Cent. Dig. 1013 180) APPEALS FROM UNITED STATES DISTRICT COURTS 499 subject-matter, and that its receiver was in prior posses- sion. The federal court refused to discharge its receiver, and from this order an appeal was taken. The petition for an appeal set out the action of the lower court, and prayed for an appeal from the order taking and exercising juris- diction; and the federal judge, in allowing the appeal, stat- ed in the order that it was granted solely upon the ques- tion of jurisdiction. The Supreme Court held this suffi- cient, using the following language: "It is not necessary that the word 'certify' be formally used. It is sufficient if there is a plain declaration that the single matter which is by the record sent up to this court for decision is a ques- tion of jurisdiction, and the precise question clearly, fully, and separately stated. No mere suggestion that the juris- diction of the court was in issue will answer. This court will not of itself search, nor follow counsel in their search of the record, to ascertain whether the judgment of the trial court did or did not turn on some question of jurisdiction. But the record must affirmatively show that the trial court sends up for consideration a single, definite question of jurisdiction." e In another case 7 the record showed that there was a plea to the jurisdiction in the lower court on the ground that the suit was a collusive attempt to confer upon the federal court a jurisdiction not conferred upon it by law. The judgment of the court recited these pleas, the replications thereto, an agreed statement of facts, the recital that the court decided against the jurisdiction, the opinion of the court, and also a bill of exceptions reciting the ruling of the court on the jurisdictional point, and the exception thereto. The order allowing the writ of error also recited the ruling of the court on the question of jurisdiction, and e Shields v. Coleinan, 157 U. S. 168, 15 Sup. Ct. 570, 39 L. Ed. 660. See "Courts," Dec. Dig. (Key-No.) 385; Cent. Dif). 10 IS. i In re Lehigh Min. & Mfg. Co., 156 U. S. 322, 15 Sup. Ct 375, 39 L. Ed. 438. See "Courts," Dec. Dig. (Key-No.) 385; Cent. Dig. 1013. 500 APPELLATE JURISDICTION (Ch. 22 allowed the appeal. It was held that this was a sufficient certificate of the question of jurisdiction. In another case 8 the record showed that the only matter which had been tried in the lower court was a demurrer to a plea to the jurisdiction; that the decision of the court on that issue was against the jurisdiction, and dismissed the case ; and the petition for the allowance of an appeal simply prayed for a review of the judgment holding that the court had no jurisdiction of the case, on which petition the writ of error was allowed. This was held a sufficient certificate under the statute. In another case 9 the court had dismissed the action as not involving a controversy within the cognizance of the federal courts, and this appeared clearly on the face of the record. The petition for appeal alleged that the plaintiff s Interior Const. & Imp. Co. v. Gibney, 160 U. S. 217, 16 Sup. Ct. 272, 40 L. Ed. 401. See, also, The Jefferson, 215 U. S. 130, 30 Sup. Ct. 54, 54 L. Ed. 125, 17 Ann. Cas. 907. See "Courts," Dec. Dig. (Key-No.) 385; Cent. Dig. 1013. 9 Huntington v. Laidley, 176 U. S. 668, 20 Sup. Ct 526, 44 L. Ed. 630. The following was the certificate in this case : "A final decree having been entered herein, on the 25th day of June, 1898, dis- missing this bill and the bill and amended bills therein: Now, therefore, this court, in pursuance of the second paragraph of the fifth section of the act of Congress approved March 3, 1891, and en- titled '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,' hereby certifies to the Supreme Court of the United States for decision the question of jurisdiction alone of this court over this cause as follows : Is this court without jurisdiction of this cause because of the pendency in the state court, prior to the commencement of this suit, of the action of ejectment in which John B. Laidley was plaintiff and the Central Land Co. of West Va. was defendant, which was begun in the circuit court of Cabell Co., West Va., on the first Monday in April, 1882, and of the other actions in ejectment brought prior to this cause in said state court by the said John B. Laidley as plaintiff in relation to the property in question in this suit, and of the chancery cause in which the Central Land Co. of West Va. was complainant and John B. Laidley and others were defendants, which was brought in said state court prior to the commencement of this cause?" See "Courts," Dec. Dig. (Key-No.) 385; Cent. Dig. 1013. 180) APPEALS FROM UNITED STATES DISTRICT COURTS 501 was aggrieved by the decree dismissing the suit on the ground of want of jurisdiction, because of the pendency of a suit in the state court begun prior to the commencement of this cause, and the order provided that the appeal be al- lowed "as prayed for." The Supreme Court held that the allowance of appeal in this form was sufficient, under these circumstances, independent of the fact that the certificate itself was also sufficient. In another case 10 the decree and the allowance of the ap- peal both showed that the only question in issue was juris- diction. The court held that no separate certificate was necessary. On the other hand, if the jurisdictional question appears in the record, not as the sole question passed upon, but only as one of many, and the order allowing the writ of error was in general terms, not specifying this single ques- tion of jurisdiction, that would not be a sufficient certifi- cate, and the court would not take cognizance of the case under such circumstances. 11 So, too, where the record of the case showed that it had turned, not upon a jurisdictional question, but upon the merits, even a certificate failing to present a clear-cut, single jurisdictional question would not give the court pow- er to review. The case in which this principle was an- nounced was a habeas corpus case in a district court in which the writ was issued to a county sheriff, and was prayed on the ground that the party confined under an in- dictment of a state court was acting at the time as a spe- cial agent of the general land office in the Department of the Interior of the United States. The court certified the 10 Excelsior Wooden Pipe Co. v. Pacific Bridge Co., 185 U. S. 282, 22 Sup. Ct. 681, 46 L. Ed. 910. See, also, Chicago v. Mills, 204 U. S. 321, 27 Sup. Ct. 286, 51 L. Ed. 504 ; Herndon-Carter Co. v. James N. Norris Son & Co., 224 TJ. S. 496, 32 Sup. Ct. 550, 56 L. Ed. 857. See "Courts," Dec. Dig. (Key-No.) 385; Cent. Dig. 1013. 11 CHAPPELL v. U. S., 160 U. S. 499, 16 Sup. Ct 397, 40 L. Ed. 510. See "Courts," Dec. Dig. (Key-No.) 385; Cent. Dig. 101S. 502 APPELLATE JURISDICTION (Ch. 22 following questions to the Supreme Court as questions of jurisdiction: (1) Whether this court has jurisdiction in the premises to discharge the petitioner, Charles A. M. Schlierholz, from the custody of John A. Hinkle, sheriff of Independence county, Ark., for the matters and things and under the cir- cumstances set out in the record in this cause. (2) Whether the proper order of this court, under the facts, should have been to remand said petitioner to the custody of the said sheriff of Independence county, Ark., to be dealt with by the Independence circuit court of the state, or to discharge him from said custody. The Supreme Court held that this certificate was not suf- ficiently definite to be considered a certificate of a jurisdic- tional question especially in connection with the fact that the record in the case did not show that any such question had arisen. 12 The petition for the appeal cannot take the place of such a certificate when it merely stated in general terms that the court acted without jurisdiction, but did not specify the special jurisdictional question arising, and the judge allowed the appeal generally in the form used when entire records are taken up. In such case, even a more definite statement of a jurisdictional question in the as- signment of errors will not help. 13 The questions which are considered jurisdictional in this connection have been discussed in the previous chapter. The jurisdiction meant is the jurisdiction in the case from which the appeal is taken, not the jurisdiction in a former case questioned by the latter case. For instance, where a suit is brought, questioning the validity of a foreclosure proceeding in a former suit, the jurisdiction of the court 12 Arkansas v. Schlierholz, 179 TJ. S. 598, 21 Sup. Ct 229, 45 L. Ed. 335. See "Courts," Dec. Dig. (Key-No.) 385; Cent. Dig. 1013. is The Bayonne, 159 U. S. 687, 16 Sup. Ct. 185, 40 L. Ed. 305. See "Courts" Dec. Dig. (Key-No.) 385; Cent. Dig. 1013. 180) APPEALS FKOM UNITED STATES DISTRICT COURTS 503 in this former suit cannot be considered. 14 And the ques- tion whether a suit against a state officer is in effect a suit against a state, is not a jurisdictional, but a constitutional, question, and cannot be considered under this clause of the statute. 15 On the other hand, the question whether the court ever obtained jurisdiction over the defendant by a valid service of process is a question of jurisdiction which can be certified up. 16 Under some circumstances, the Su- preme Court can consider on appeals based on jurisdiction- al questions, not only matters of law, but matters of fact; as, for instance, in an action of ejectment, where the court had held on affidavits that the value of the land involved was less than two thousand dollars, the Supreme Court reviewed this finding on the facts, and reversed it. 17 (b) Prise Causes The section requires appeals to go direct to the Supreme Court "from the final sentences and decrees in prize caus- es." The reason is the international character of the ques- tion involved. Hence, where the question of international law was whether an unarmed fishing vessel not going knowingly to a blockaded port was a lawful prize, the question was taken to the Supreme Court. 18 i* Carey v. Houston & T. C. Ry. Co., 150 U. S. 170, 14 Sup. Ct 63, 37 L. Ed. 1041. See "Courts," Dec. Dig. (Key-No.) 385; Cent. Dig. 1011-1021. is Illinois Cent. R. Co. v. Adams, 180 U. S. 28, 21 Sup. Ct 251, 45 L. Ed. 410. See "Courts," Dec. Dig. (Key-No.) 385; Cent. Dig. 1011-1021. i Mechanical Appliance Co. v. Castleman, 215 U. S. 437, 30 Sup. Ct. 125, 54 L. Ed. 272 ; Davis v. Cleveland, C. C. & St. L. R. Co., 217 U. S. 157, 30 Sup. Ct. 463, 54 L. Ed. 708, 27 L. R. A. (N. S.) 823, 18 Ann. Cas. 907 ; U. S. v. Congress Construction Co., 222 U. S. 199, 32 Sup. Ct 44, 56 L. Ed. 163. See "Courts," Dec. Dig. (Key-No.) 385; Cent. Dig. 1011-1021. IT Wetmore v. Rymer, 169 U. S. 115, 18 Sup. Ct 293, 42 L. Ed. 682; Commercial Mut Ace. Co. v. Davis, 213 U. S. 245, 29 Sup. Ct. 445, 53 L. Ed. 782. See "Courts," Dec. Dig. (Key-No.) 385; Cent. Dig. 1011-1021. is The Paquete Habana, 175 U. S. 677, 20 Sup. Ct 290, 44 L. Ed. 320. See "Courts," Dec. Dig. (Key-No.) 385; Cent. Dig. 999. 504 APPELLATE JURISDICTION (Ch. 22 (c) Some Criminal Causes The pressure of business upon the court has resulted in but little criminal jurisdiction being left it. The most no- table class is of the questions arising under the act of March 2, 1907, which is as follows: "Be it enacted, etc., that a writ of error may be taken by and on behalf of the United States from the district or circuit courts direct to the Supreme Court of the United States hi all criminal cases, in the following instances, to wit: "From a decision or judgment quashing, setting aside, or sustaining a demurrer to, any indictment, or any count thereof, where such decision or judgment is based upon the invalidity, or construction of the statute upon which the indictment is founded. "From a decision arresting a judgment of conviction for insufficiency of the indictment, where such decision is based upon the invalidity or construction of the statute upon which the indictment is founded. "From the decision or judgment sustaining a special plea in bar, when the defendant has not been put in jeop- ardy. "The writ of error in all such cases shall be taken with- in thirty days after the decision or judgment has been ren- dered and shall be diligently prosecuted and shall have prec- edence over all other cases. Pending the prosecution and determination of the writ of error in the foregoing instances, the defendant shall be admitted to bail on his own recognizance : "Provided, that no writ of error shall be taken by or allowed the United States in any case where there has been a verdict in favor of the defendant." 19 This act was not repealed by the Judicial Code. 20 i 34 Stat. 1246, c. 2564. 20 United States v. Winslow, 227 U. S. 202, 33 Sup. Ct. 253, 57 L. Ed. . See "Courts" Dec. Dig. (Key-No.) 885; Cent* Dig. 1022-1081. 180) APPEALS FBOM UNITED STATES DISTEICT COURTS 505 This allowance of a right of review to the United States marks a sharp change of policy, but it certainly guards the rights of the accused in every way possible. Under it a number of cases have been taken to the Supreme Court. 21 Another instance of criminal review still left to the Su- preme Court is in cases of obstructions to navigation by bridges. Under the eighteenth section of the act of March 3, 1899, in relation to rivers and harbors, power is given to the Sec- retary of War, acting through the district attorney, to in- stitute criminal proceedings against parties constructing bridges in such a way as to constitute an unreasonable ob- struction to free navigation. It makes such act on the part of the person so obstructing the navigation a misde- meanor punishable by fine, if he does not remove the ob- struction within a certain time after notice. If provides that an appeal from any case arising under the provisions of this section may be taken direct to the Supreme Court, either by the United States or by the defendants. 22 (d) Constitutional or Treaty Questions The section requires a direct resort to the Supreme Court "in any case that involves the construction or application of the Constitution of the United States." "In any case in which the constitutionality of any law of the United States or the validity or construction of any treaty made under its authority is drawn in question. 21 See, as illustrations, II. S. v. Keltel, 211 U. S. 370, 29 Sup. Ct. 123, 53 L. Ed. 230 ; U. S. v. Biggs, 211 U. S. 507, 29 Sup. Ct. 181, 53 L. Ed. 305; U. S. v. Stevenson, 215 U. S. 190, 30 Sup. Ct 35, 54 L. Ed. 153 ; U. S. v. Corbett, 215 U. S. 233, 30 Sup. Ct 81, 54 L. Ed. 173; U. S. v. Barber, 219 U. S. 72, 31 Sup. Ct 209, 55 L. Ed. 99. See "Courts," Dec. Dig. (Key-Ho.) 385; Cent. Dig. 1022-1031. 2230 Stat 1153, c. 425 (U. S. Cornp. St. 1901, p. 3545). See, as illustrations of such appeals, Union Bridge Co. v. U. S., 204 U. S. 364, 27 Sup. Ct. 3G7, 51 L. Ed. 523; Monongahela Bridge Co. v. U. S., 216 U. S. 177, 30 Sup. Ct. 356, 54 L. Ed. 435; Hannibal Bridge Co. v. U. S., 221 U. S. 194, 31 Sup. Ct 603, 55 L. Ed. 699. See "Courts," Dec. Dig. (Key-No.) 385; Cent. Dig. 1000. 506 APPELLATE JURISDICTION (Ch. 22 "In any case in which the Constitution or law of the state is claimed to be in contravention of the Constitution of the United States." There is a striking difference in the policy of the act be- tween this class of cases and the class involving simply ju- risdictional questions. In the latter, only the jurisdictional question is certified, but in these constitutional or interna- tional questions the whole case goes up, and not simply the constitutional or international question that may be in- volved. 23 If such a question was raised on allegations so false and fictitious as to practically amount to bad faith, or on propositions so bald as to be self-destructive, the court would not take jurisdiction; 24 but, if the question raised is bona fide and colorable, the court will consider the whole case, although it should, in making such decision, hold that the constitutional question on account of which the case was taken up was not sustainable. On this point the Supreme Court has expressed itself as follows : "The argument by which it is sought to support the con- tention that a right to review the case by direct appeal does not exist not only disregards the letter of the statute, but is unsound in reason. It says that the right to the di- rect appeal can alone rest on the proposition 'that the Con- stitution or a law of the state of Texas conflicts with ap- pellant's contract, and contravenes the federal Constitu- tion in other words, it must affirmatively appear upon the face of complainant's bill that there was involved in this case a federal question, the determination of which was es- sential to a correct decision of the case'; but the words of 23 Chappell v. TJ. S., 160 U. S. 499, 16 Sup. Ct. 397, 40 L. Ed. 510; Field v. Barber Asphalt Paving Co., 194 U. S. 618, 24 Sup. Ct 784, 48 L. Ed. 1142. See "Courts," Dec. Dig. (Key-No.) 385; Cent. Dig. 1022-1026, 1031. 2* Goodrich v. Ferris, 214 U. S. 71, 29 Sup. Ct. 580, 53 L. Ed. 914; Missouri Pac. R. Co. v. Castle, 224 U. S. 541, 32 Sup. Ct. 606, 56 L. Ed. 875. See "Courts," Dec. Dig. (Key-No.) 385; Cent. Dig. 1022-1026, 1031. 180) APPEALS FROM UNITED STATES DISTRICT COURTS 507 the statute which empower this court to review directly the action of the circuit court are that such power shall exist wherever it is claimed on the record that a law of a state is in contravention of the federal Constitution. Of course, the claim must be real and colorable, not fictitious and fraudulent. The contention here made, however, is not that the bill, without color of right, alleges that the state, law and city ordinances violate the Constitution of the United States, but that such claim as alleged in the bill is legally unsound. The argument, then, in effect, is that the right to a direct appeal to this court does not exist where it is claimed that a state law violates the Constitution of the United States, unless the claim be well founded. But it cannot be decided whether the claim is meritorious and should be maintained without taking jurisdiction of the case. The authorities referred to as supporting the posi- tion indicate that the argument is a result of a confusion of thought, and that it arises from confounding the power of this court to review on a writ of error the action of a state court with the power exercised by this court under the act of 1891 to review by direct appeal the final action of the circuit court, where on the face of the record it appears that the claim was made that the statute of a state contra- vened the Constitution of the United States. These classes of jurisdiction are distinct in their nature, and are embraced in different statutory provisions. Having jurisdiction of the cause, there exists the power to consider every question arising on the record." " In order to give jurisdiction in this class, it must clearly appear that the question was actually raised and passed on. It is not only necessary that a title, right, privilege, or im- munity is claimed under the Constitution, where the ap- peal is based on the ground that the construction or ap- 26 PENN MUT. LIFE INS. CO. V. AUSTIN, 168 U. S. 680, 694, 695, 18 Sup. Ct. 223, 42 L. Ed. 626. Bee "Courts," Dec. Dig. (Key- No.) 385; Cent. Dig. 1022-1026, 10S1. 508 APPELLATE JURISDICTION (Ch. 22 plication of the Constitution is involved, but a definite issue in respect to the possession of the right must be distinctly deducible from the record. Hence, although the plaintiff stated in his complaint that he would rely upon certain treaty provisions and upon the fifth amendment to the fed- eral Constitution, but there was nothing to show that the question actually arose in the case, the court declined to take jurisdiction. 26 A general exception to an instruction, not stating that it was objected to on the ground that a constitutional ques- tion was involved, is not sufficient to make the record show such a question ; and, as it must appear from the record of the court of original jurisdiction, an assignment of errors cannot be used for the purpose of grafting upon the record such a question for the first time. 27 On the other hand, the Supreme Court would have jurisdiction, although the question was raised for the first time by the defendant's pleading, as by demurrer; the principle being different in this case from the rule that the original jurisdiction of a federal court, as based on a federal question, must appear from the plaintiff's statement of his own case, as has been discussed in a previous connection. 28 It makes no difference which of the two parties appeals. The court has jurisdiction in either case, if such a question is involved. For instance, in Loeb v. Columbia Tp. 29 the federal question was raised by the defendant's demurrer and decided in his favor, and the plaintiff was the appel- lant. On the other hand, in Connolly v. Union Sewer Pipe 26 Muse v. Arlington Hotel Co., 168 U. S. 430, 18 Sup. Ct. 109, 42 L. Ed. 531. See "Courts," Dec. Dig. (Key-No.) 298, 385. 27 Cincinnati, H. & D. R. Co. v. Thiebaud, 177 U. S. 615, 20 Sup. Ct. 822, 44 L. Ed. 911. See "Courts," Dec. Dig. (Key-No.) 385; Cent. Dig. 1022-1026, 1031. 28 Loeb v. Township, 179 U. S. 472, 21 Sup. Ct 174, 45 L. Ed. 280; ante, pp. 236, 312. See "Courts," Dec. Dig. (Key-No.) 385. 29179 U. S. 472, 21 Sup. Ct. 174, 45 L. Ed, 280. See "Courts," Dec. Dig. (Key-No.) 385. 180) APPEALS FROM UNITED STATES DISTRICT COURTS 509 Co. 30 the constitutional question was raised by the plain- tiff, sustained by the court, and appealed by defendant. In both cases the court held that it had jurisdiction. 31 CASES INCLUDED IN THIS CLASS (1) "In Any Case That Involves the Construction or Applica- tion of the Constitution of the United States" In order to give jurisdiction under this heading, the con- stitutional question must be directly involved, and must be a controlling question in the case. 32 Notwithstanding the broad language of this statute, it was not intended to change the long-established principle of criminal law that no appeal lies on behalf of the govern- ment. Hence in criminal cases the United States cannot appeal, except under the act of March 2, 1907, just dis- cussed, though a constitutional question is involved. 33 But the defendant can take any criminal case to the Supreme Court that involves a constitutional question. 3 * Mere irregularities in judicial proceedings which can be corrected by review are not considered constitutional ques- tions. For instance, the allegation that a decree of court deprived the plaintiff of his property without due process of law is not such a question. 35 So the allegation that the action of the court in directing a verdict deprived the liti- so 184 U. S. 540, 22 Sup. Ct. 431, 46 L. Ed. 679. See "Courts," Dec. Difj. (Key-No.) 885. si See, also, Cosmopolitan Min. Co. v. Walsh, 193 U. S. 460, 24 Sup. Ct. 489, 48 L. Ed. 749. See "Courts," Dec. Dig. (Ken-No.) 385. s 2 Carey v. Houston & T. C. Ry. Co., 150 U. S. 170, 14 Sup. Ct 63, 37 L. Ed. 1041. See "Courts," Dec. Dig. (Key-No.) 385. SB U. S. v. Sanges, 144 U. S. 310, 12 Sup. Ct. 609, 36 L. Ed. 445. See "Courts," Dec. Dig. (Key-No.) 385; "Criminal Law," Dec. Dig. (Key-No.) 1024; Cent. Dig. 2599-2614. s* MOTES v. U. S., 178 U. S. 458, 20 Sup. Ct 993, 44 L. Ed. 1150. See "Courts," Dec. Dig. (Key-No.) 385. 35 Carey v. Houston & T. C. Ry. Co., 150 U. S. 170, 14 Sup. Ct 63, 37 L. Ed. 1041. See "Courts," Dec. Dig. (Key-No.) 385. 510 APPELLATE JURISDICTION (Ch. 22 gant of the right of trial by jury is not a constitutional question. 36 So the question whether process was served on a state agent of a foreign corporation in accordance with the state statute regulating it was not a constitutional question. 37 So, too, the question whether parties were collusively joined for the purpose of conferring jurisdiction on a fed- eral court. 38 On the other hand, a constitutional question was held to be involved when a collector of internal reve- nue refused to file in a state court copies of papers in his office which he was forbidden by federal regulations to di- vulge, in consequence of which he was committed for con- tempt by the state court, and a proceeding by habeas corp- us was based thereon. 39 So, too, a constitutional question was involved when the trial court admitted, against the prisoner's objection, the written testimony that a witness had given at the examining trial; the allegation being that this deprived the accused of the constitutional right of be- ing confronted with the witnesses against him. 40 The right to vote for members of Congress being a right claimed under the federal Constitution, a suit against the state election officers for refusing a vote involves a con- stitutional question. 41 The right to build a dock in navigable waters, which was sC. A. Treat Mfg. Co. v. Standard Steel & Iron Co., 157 TJ. S. 674, 15 Sup. Ct. 718, 39 L. Ed. 853. See "Courts," Dec. Dig. (Key- No.) 385. 37 Cosmopolitan Min. Co. v. Walsh, 193 U. S. 460, 24 Sup. Ct 489, 48 L. Ed. 749. See "Courts," Dec. Dig. (Key-No.) 385. ss Merritt v. Bowdoin College, 169 U. S. 551^ 18 Sup. Ct 415, 42 L. Ed. 850. See "Courts," Dec. Dig. (Key-No.) 385. 39 Boske v. Comingore, 177 U. S. 459, 20 Sup. Ct 701, 44 L. Ed. 846. As another exaJriple of a habeas corpus appeal, see Pierce v. Creecy, 210 U. S. 387, 28 Sup. Ct. 714, 52 L. Ed. 1113. See "Courts," Dec. Dig. (Key-No.) 385. 40 MOTES v. U. S., 178 U. S. 458, 20 Sup. Ct 993, 44 L. Ed. 1150. See "Courts," Dec. Dig. (Key-No.) 385. 41 Wiley v. Sinkler, 179 U. s. 58, 21 Sup. Ct. 17, 45 L. Ed. 84. See "Courts," Dec. Dig. (Key-No.) 385. 180) APPEALS FBOM UNITED STATES DISTRICT COUBT8 511 claimed under certain acts of Congress and a permit from the Secretary of War, and which was disputed, involves a constitutional question. 42 (2) "In Any Case in Which the Constitutionality of Any Law of the United States * * * is Drawn in Question" This class of jurisdiction in the Supreme Court only ap- plies where the constitutionality of the federal statute is questioned. A mere question of construction under a fed- eral statute does not come within this class. 48 Hence there are many federal questions of which the federal trial courts have jurisdiction, but which do not fall within this class such as questions involving the mere construction of a federal statute, and not its validity. Such cases cannot go by direct appeal from the courts of original jurisdiction to the Supreme Court, but it will be seen, in discussing the jurisdiction of the Supreme Court over cases from the cir- cuit courts of appeals, that the decision of the circuit courts of appeals is not final in such cases, and that, therefore, if they involve a sufficient amount, they can be taken to the Supreme Court from that court. But wherever the validity of a federal statute is questioned, the appeal lies directly to the Supreme Court. 44 (3) "In Any Case in Which * * * the Validity or Con- struction of Any Treaty Made under Its Authority is Drawn in Question" Here, too, it must appear that the validity or construc- tion of a treaty was actually involved or passed upon. 45 <2 Cummings v. Chicago, 188 U. S. 410, 23 Sup. Ct 472, 47 L. Ed. 525. See "Courts," Dec. Dig. (Key-No.) 385. 43 Spreckels Sugar Refining Co. v. McClain, 192 U. S. 397, 24 Sup. Ct. 376, 48 L. Ed. 496. See "Courts," Dec. Dig. (Key-^o.) 385. 4 Homer v. U. S., 143 U. S. 570, 12 Sup. Ct. 522, 36 L. Ed. 266 (involving the constitutionality of section 3894 of the Revised Stat- utes [U. S. Comp. St 1901, p. 2659] forbidding the use of the mails for lotteries) ; CHAPPELL v. U. S., 160 U. S. 499, 16 Sup. Ct. 397, 40 L. Ed. 510 (involving the validity of a federal condemnation act). See "Courts," Dec. Dig. (Key-lSo.) 385. 45 Muse v. Arlington Hotel Co., 168 U. S. 430, 18 Sup. Ct. 109. 42 512 APPELLATE JURISDICTION (Ch. 22 Where a treaty comes before the court only in an inci- dental way, as part of the history of a case, or as relevant to some main issue involved, this is not sufficient to confer jurisdiction on the Supreme Court under this section. 48 But where the construction of the treaty is necessary for the decision, although it may be connected with other ques- tions in the case, the Supreme Court has jurisdiction. 47 (4) "In Any Case in Which the Constitution or Law of a State is Claimed to be in Contravention of the Constitution of the United States" It has always been the policy of Congress to make the Supreme Court the final arbiter of questions of this char- acter, it being the only class in which an appeal lies from a state court to a federal court, as will be seen hereafter. But such right to review the inferior federal courts of original jurisdiction by the Supreme Court can be invoked only by the party actually affected. For instance, a city cannot set up that an act extending boundaries deprives residents of the outlying territory of their property with- out due process when the parties themselves have made no complaint. 48 And the Supreme Court has the right to review the entire case under this section, though the lower court has certified a question up as a jurisdictional ques- tion, for it is not in the power of the lower court to narrow the jurisdiction of the Supreme Court by such a certifi- cate. 49 L. Ed. 531; Altman & Co. v. U. S., 224 U. S. 583, 32 Sup. Ct 593, 56 L. Ed. 894. See "Courts," Dec. Dig. (Key-No.) 298, 385. 46 Borgmeyer v. Idler, 159 U. S. 408, 16 Sup. Ct. 34, 40 L. Ed. 199; Sloan v. U. S., 193 U. S. 614, 24 Sup. Ct. 570, 48 L. Ed. 814; The Pilot v. United States, 53 Fed, 11, 3 C. C. A. 392. See "Courts," Dec. Dig. (Key-No.) 385. 4 T Rice v. Ames, 180 U. S. 371, 21 Sup. Ct. 406, 45 L. Ed. 577; Mitchell v. Furman, 180 U. S. 402, 21 Sup. Ct. 430, 45 L. Ed. 596; Pettit v. Walshe, 194 U. S. 205, 24 Sup. Ct. 658, 48 L. Ed. 938. See "Courts," Dec. Dig. (Key-No.) 385. 48 Lampasas v. Bell, 180 U. S. 276, 21 Sup. Ct. 368, 45 L. Ed. 527. See "Courts," Dec. Dig. (Key-No.) 385. 4 Giles v. Harris, 189 U. S. 475, 23 Sup. Ct. 639, 47 L. Ed. 909. See "Courts," Dec. Dig. (Key-No.) 385. 180) APPEALS FROM UNITED 8TATE8 DISTRICT COURTS 513 One of the most numerous classes of cases involving the validity of state legislation is where such legislation is claimed to impair the obligation of a contract. 50 The ques- tion whether state legislation denies the equal protection of the laws has also been the subject of many such cases. 61 The language of all these subdivisions to section 238 clear- ly gives an appeal to the Supreme Court only from such proceedings in court as would constitute a case, and not from proceedings of a mere administrative character which happen to be vested in a district court. 62 And in all these cases the Supreme Court has jurisdiction regardless of the amount involved. 5 * (e) Suits by the United States under the Anti-Trust Acts The act of February 11, 1903, 54 provides in its second sec- tion that any suit in equity brought under the anti-trust acts wherein the United States is complainant, may be taken direct to the Supreme Court. 66 eo PENN MUT. LIFE INS. CO. v. AUSTIN, 168 TJ. S. 685, 18 Sup. Ct. 223, 42 L. Ed. 626 ; Illinois Cent. R. Co. v. Adams, 180 U. S. 28, 21 Sup. Ct. 251, 45 L. Ed. 410. See "Courts," Dec. Dig. (Key-No.) 385. si Connolly v. Union Sewer Pipe Co., 184 U. S. 540, 22 Sup. Ct. 431, 46 L. Ed. 679 ; Fidelity Mut. Life Ass'n v. Mettler, 185 U. S. 308, 22 Sup. Ct 662, 46 L. Ed. 922. See "Courts," Dec. Dig. (Key-No.) 385. 52 PACIFIC STEAM WHALING CO. v. U. S., 187 U. S. 447, 23 Sup. Ct 154, 47 L. Ed. 253. See "Courts," Dec. Dig. (Key-No.) 385. 53 Kirby v. American Soda Fountain Co., 194 U. S. 141, 24 Sup. Ct. 619, 48 L. Ed. 911. See "Courts," Dec. Dig. (Key-No.) 385. 8*32 Stat 823, c. 544, amended by Act June 25, 1910, c. 428, 36 Stat 854 (U. S. Comp. St. Supp. 1911, p. 1383). 66 NORTHERN SECURITIES CO. v. U. S., 193 U. S. 197, 24 Sup. Ct. 436, 48 L. Ed, 679; Interstate Commerce Commission v. Baird, 194 U. S. 25, 24 Sup. Ct. 5G3, 48 L. Ed. 860; Baltimore & O. R. Co. v. Interstate Commerce Commission, 215 U. S. 216, 30 Sup. Ct 86, 54 L. Ed. 164. See "Courts," Dec. Dig. (Key-No.) 385; "Monopolies," Dec. Dig. (Key-No.) 24. HUGHES FED.PB.(2o ED.) 33 514 APPELLATE JURISDICTION (Ch. 22 APPEALS FROM THE CIRCUIT COURTS OF APPEALS 181. The Supreme Court exercises appellate jurisdiction over the circuit court of appeals: (a) By certificate from the circuit court of appeals when the judges of that court desire to certify a question to the Supreme Court for its decision. (b) By writ of certiorari from the Supreme Court to the circuit court of appeals when the judges of the Supreme Court desire to review in the highest court the decision of some question of great im- portance. (c) By appeal or writ of error in all cases in which the decision of the circuit court of appeals is not final. (d) In certain cases under the bankrupt act. Section 239 of the Judicial Code provides: "In any case within its appellate jurisdiction, as denned in section one hundred and twenty-eight, the circuit court of appeals at any time may certify to the Supreme Court of the United States any questions or propositions of law concerning which it desires the instruction of that court for its proper decision ; and thereupon the Supreme Court may either give its instruction on the questions and propo- sitions certified to it, which shall be binding upon the cir- cuit court of appeals in such case, or it may require that the whole record and cause be sent up to it for its considera- tion, and thereupon shall decide the whole matter in con- troversy in the same manner as if it had been brought there for review by writ of error or appeal." (a) Review on Certificate Under this paragraph, the first method in which the Su- preme Court can acquire jurisdiction to review cases in the circuit courts of appeals is by a certificate from the latter 181) APPEALS FBOM CIRCUIT COURTS OF APPEALS 515 court, the object of which is to present to the Supreme Court definite propositions of law. There is some ambiguity whether this certificate can be issued in any case of which the circuit court of appeals has jurisdiction, or only in those cases of which it has final ju- risdiction. The more natural construction of the words "in every such subject within its appellate jurisdiction," which precede the provision as to the certificate, would seem, however, to be that they allude to the appellate jurisdiction to review by appeal or writ of error all the decisions of the district courts except those provided for by section 238 of the Judicial Code, and that the words above quoted qualify this first part of the section, and not simply the part imme- diately preceding them, which specify the cases of final ju- risdiction. The object of the certificate will apply to both alike, and it is not only more natural to suppose that the circuit courts of appeals could certify questions up from all cases in its jurisdiction than to suppose that they were lim- ited ; but this view is also strengthened by the fact that, in the subsequent paragraph relating to the right of the Su- preme Court to issue a certiorari, that is expressly limited to cases made final, thus drawing a distinction between the cases going up by a certificate and cases brought up by certiorari. The object of this provision and its limits are well ex- pressed in an opinion of Mr. Justice Brewer: "It may be proper to observe that the purpose of the act of 1891 creating the courts of appeals, was to vest final ju- risdiction as to certain classes of cases in the courts then created '; and this in order that the docket of this court might be relieved, and it be enabled with more promptness to dispose of the cases directly coming to it. In order to guard against any injurious results which might flow from having nine appellate courts acting independently of each other, power was given to this court to bring before it by certiorari any case pending in either of those courts. In 516 APPELLATE JURISDICTION (Cll. 22 that way it was believed that uniformity of ruling might be secured, as well as the disposition of cases whose gravity and importance rendered the action of the tribunal of last resort peculiarly desirable, but the power of determining what cases should be so brought up was vested in this court, and it was not intended to give to any one of the courts of appeals the right to avoid the responsibility cast upon it by statute by transmitting any case it saw fit to this court for decision. If such practice were tolerated, it is easy to perceive that the purpose of the act might be de- feated, and the courts of appeals, by transferring cases here, not only relieve themselves of burden, but also crowd upon this court the very cases which it was the intent of Congress they should finally determine. It is true, power was given to the courts of appeals to certify questions, but it is only 'questions or propositions of law' which they are authorized to certify. And such questions must be, as held in the case just cited, 'distinct questions or proposi- tions of law, unmixed with questions of fact, or of mixed law and fact.' It is not always easy to draw the line, for, in order to present a distinct question of law, it may some- times be necessary to present many facts upon which that question is based ; but care must always be taken that, un- der the guise of certifying questions, the courts of appeals do not transmit the whole case to us for consideration." 56 The form of this certificate is prescribed by rule 37 57 of the United States Supreme Court, as follows: "Where, under section 239 of the act entitled 'An act to codify, revise, and amend the laws relating to the judiciary/ approved March 3, 1911, chapter 231, a circuit court of ap- peals shall certify to this court a question or proposition of law concerning which it desires the instruction of this 56 WARNER v. NEW ORLEANS, 167 TJ. S. 474, 475, 17 Sup. Ct. 892, 42 L. Ed. 239. See "Courts," Dec. Dig. (Key-No.) SSj; Cent. Dig. 1021. 57 32 Sup. Ct. xiv. 181) APPEALS FEOM CIRCUIT COURTS OF APPEALS 517 court for its proper decision, the certificate shall contain a proper statement of the facts on which such question or proposition of law arises." The Supreme Court has repeatedly held that this certif- icate should present separate, independent propositions of law, and show that the court desired instruction upon such questions, and that it could not be used for certifying up questions involving an examination of the entire record, al- though the Supreme Court may, if it desires, require the whole record to be sent up, but that must be the act of the Supreme Court, not of the circuit court of appeals. 88 The Supreme Court has also said that a good analogy to follow in the framework of these certificates is the old cer- tificate of division of opinion, in use before these more recent provisions regulating appeals. 59 The issuing of this certificate is discretionary with the circuit court of appeals, and it should issue only before a decision in the case, and when the court entertains a real doubt. 60 The facts to be embodied in such a certificate are not mere matters of evidence, but the ultimate facts necessary for a right understanding of the question involved. 01 The cases referred to in the footnote to this sentence contain forms of such certificate. 82 5 s Cincinnati, H. & D. R. Co. v. McKeen. 149 U. S. 259, 13 Sup. Ct. 840, 37 L. Ed. 725 ; Hallowell v. U. S., 209 U. S. 101, 28 Sup. Ct. 498, 52 L. Ed. 702. See "Courts:' Dec. Dig. (Key-No.) 884; Cent. Dig. 1021. B Graver v. Faurot, 162 U. S. 435, 16 Sup. Ct. 799, 40 L. Ed. 1030; Felsenheld v. U. S., 186 U. S. 126, 22 Sup. Ct. 740, 46 L. Ed. 1085. See "Courts," Dec. Dig. (Key-No.) 384, 386; Cent. Dig. 1021, 1021-10SO. oo Louisville, N. A. & C. R. Co. v. Pope, 74 Fed. 1, 20 C. C. A. 253 ; German Ins. Co. v. Hearne, 118 Fed. 134, 55 C. C. A. 84; Cella v. Brown, 144 Fed. 742, 75 C. C. A. 608. See "Courts," Dec. Dig. (Key- No.) 384; Cent. Dig. 1021. i Sigafus v. Porter, 85 Fed. 689, 29 C. C. A. 391. See "Courts," Dec. Dig. (Key-No.) S8J, ; Cent. Dig. 1021. z New Orleans v. Benjamin, 153 U. S. 411, 14 Sup. Ct. 905, 38 L. Ed. 764 ; Folsom v. U. S., 160 U. S. 121, 16 Sup. Ct. 222, 40 L. Ed. 518 APPELLATE JURISDICTION (Ch. 22 (&) Review by Certiorari Section 240 of the Judicial Code provides as follows : "In any case, civil or criminal, in which the judgment or decree of the circuit court of appeals is made final by the provisions of this title, it shall be competent for the Su- preme Court to require, by certiorari or otherwise, upon the petition of any party thereto, any such case to be cer- tified to the Supreme Court for its review and determina- tion, with the same power and authority in the case as if it had been carried by appeal or writ of error to the Su- preme Court." The Supreme Court can issue a certiorari to the circuit court of appeals only in the cases "hereinbefore made final" ; that is, in the cases named in section 128 of the Judi- cial Code as final. This power of the Supreme Court is in- tended for use only in exceptional circumstances. It has been issued only in questions of gravity and general im- portance, or in cases where it was necessary to settle a con- flict of decision between inferior courts. 63 It has been is- sued in several admiralty cases involving questions arising out of the international rules of navigation, and in ques- tions arising out of treaties, on account of the international character of these questions. It has been refused, how- ever, on questions of mere local law as, for instance, the question whether the law of master and servant was prop- erly applied in a particular case. 64 It may be issued before a final decree in the circuit court of appeals, if the case is an exceptional one, but it is issued in such cases with great 363; U. S. v. Harsha, 172 U. S. 567, 19 Sup. Ct. 294, 43 L. Ed. 556; Cincinnati, H. & D. R. Co. v. Thiebaud, 177 U. S. 615, 20 Sup. Ct. 822, 44 L. Ed. 911. See "Courts," Dec. Dig. (Key-No.) 384; Cent. Dig. 1021. ea EX parte Lau Ow Bew, 141 U. S. 583, 12 Sup. Ct. 43, 35 L. Ed. 868 ; Columbus Watch Co. v. Bobbins, 148 U. S. 266, 13 Sup. Ct 594, 37 L. Ed. 445; FORSYTH v. HAMMOND, 166 U. S. 506, 17 Sup Ct. 665, 41 L. Ed. 1095. See "Courts," Dec. Dig. (Key-No.) 383. e* In re Woods, 143 tJ. S. 202, 12 Sup. Ct 417, 36 L. Ed. 125. See "Courts," Dec. Dig. (Key-No.) 383. 181) APPEALS FROM CIRCUIT COUET8 OF APPEALS 519 reluctance. 85 It will not be issued in a case where the cir- suit court of appeals itself had no jurisdiction. 66 If issued on the ground that an important question is involved, and it turns out that such is not the case, the Su- preme Court will dismiss the proceeding without consider- ing the merits. 67 As the statute provides that such a case, when certified, goes to the Supreme Court, with the same power and au- thority in the case as if it had been carried by appeal or writ of error, it follows that only errors complained of by the petitioner can be considered by the Supreme Court, and that the party who has applied for the writ cannot complain of any errors against him. 68 When issued to a circuit court of appeals, after a second appeal to the circuit court of appeals from the trial court, it brings up the entire case. 69 No limitation is expressly provided for the time when this writ may issue, but it has been held that the court will apply the limitation of one year to direct appeals from the circuit court of appeals by analogy, and the writ will issue though the circuit court of appeals has already sent its mandate down to the lower court. 70 5 American Const. Co. v. Jacksonville, T. & K. W. Ry. Co., 148 U. S. 372, 385, 13 Sup. Ct. 158, 37 L. Ed. 486; FORSYTH v. HAM- MOND, 166 U. S. 506, 17 Sup. Ct. 665, 41 L. Ed. 1095. Bee "Courts," Dec. Dig. (Key-No.) 383. Good Shot v. U. S., 179 U. S. 87, 21 Sup. Ct. 33, 45 L. Ed. 101. See "Courts," Dec. Dig. (Key-No.) 383. "TJ. S. v. Rimer, 220 U. S. 547, 31 Sup. Ct 596, 55 L. Ed. 578. See "Courts," Dec. Dig. (Key-No.) 383. es Hubbard v. Tod, 171 U. S. 474, 19 Sup. Ct 14, 43 L. Ed. 246. See "Courts," Dec. Dig. (Key-No.) 383. Panama R. Co. v. Napier Shipping Co., 166 U. S. 280, 17 Sup. Ct. 572, 41 L. Ed. 1004. See "Courts," Dec. Dig. (Key-No.) 383. TO The Conqueror, 166 U. S. 110, 17 Sup. Ct. 510, 41 L. Ed. 937. This was decided before the enactment of the Judicial Code, which omits this one-year limitation. But there is no danger that the Su- preme Court will grant belated applications for the writ Ayres v. Polsdorfer, 187 U. S. 585, 23 Sup. Ct. 196, 47 L. Ed. 314; Bonin v. 520 APPELLATE JURISDICTION (Ch. 22 It is an interesting question whether the Supreme Court can issue the writ in any case of which the court of appeals has jurisdiction, and there is some general language in two of its decisions implying that its power to issue the writ is practically coextensive with the appellate jurisdic- tion of the circuit court of appeals. 71 But the language of the paragraph conferring the right to issue the writ seems very clearly to limit it to those cases "hereinbefore made final"; that is, to cases depending on diverse citizenship, or arising under the patent laws, the copyright laws, the revenue laws, or the criminal laws, and in admiralty cases. Hence important questions pending in a lower court may be out of the reach of the Supreme Court entirely. If they are not included in the class of cases "hereinbefore made final," and involve less than a thousand dollars, they cannot be reached by a certiorari, and they cannot be taken from the circuit court of appeals by direct appeal. If they do not involve any of the questions mentioned in section 238, they could not be taken to the Supreme Court direct from the courts of original jurisdiction. For instance, a civil suit by the United States for an amount less than a thou- sand dollars would seem to be beyond the reach of the Su- preme Court, no matter how important the construction of the statute might be on which the right of recovery would hinge. The refusal of the writ does not imply an affirmance. 72 (c) By Appeal or Writ of Error Section 241 of the Judicial Code reads: "In any case in which the judgment or decree of the cir- cuit court of appeals is not made final by the provisions of Gulf Co., 198 U. S. 115, 25 Sup. Ct. 608, 49 L. Ed. 970. See "Courts," Dec. Dig. (Key-No.) 383. 71 Lau Ow Bew v. U. S., 144 U. S. 47, 12 Sup. Ct. 517, 3G L. Ed. 340; FORSYTH v. HAMMOND, 166 U. S. 506, 17 Sup. Ct 665, 41 L. Ed. 1095. See "Courts," Dec. Dig. (Key-No.) 883. 72 Anderson v. Moyer (D. C.) 193 Fed. 499. See "Courts," Dec. Dig. (Key-No.) 888. 181) APPEALS FROM CIRCUIT COURTS OF APPEALS 521 this title, there shall be of right an appeal or writ of error to the Supreme Court of the United States where the mat- ter in controversy shall exceed one thousand dollars, be- sides costs." The question what cases are final, and what are not, has been touched upon in the previous chapter, in connection with the jurisdiction of the circuit court of appeals. The rules regulating the course of appeal in this class of questions are summarized in a recent decision of the Su- preme Court to the effect that the decision of the circuit court of appeals is final if the jurisdiction of the trial court was first invoked on the ground of diverse citizenship. If, on the other hand, the jurisdiction was first invoked on the ground of diverse citizenship, and a constitutional ques- tion subsequently arises, the case can go either to the cir- cuit court of appeals or to the Supreme Court, but not to both. If the jurisdiction of the trial court was invoked both on the ground of diverse citizenship and a federal question (not necessarily a constitutional question), then the jurisdiction of the circuit court of appeals is not final. 78 On the other hand, a decree on a petition of intervention in an equity suit against a receiver for personal injuries is re- viewable by the circuit court of appeals where the jurisdic- tion in the main suit depended on diverse citizenship, but, if an independent common-law suit had been brought against the receiver, then it would not be final, as the ju- risdiction in such case would not be based on diverse citi- zenship. 74 So, too, where the jurisdiction was invoked on 73 HUGULET MFG. CO. v. GALETON COTTON MILLS, 184 U. S. 290, 22 Sup. Ct. 452, 46 L. Ed. 546. See, also, Henningsen v. U. S. Fidelity & Guaranty Co., 208 U. S. 404, 28 Sup. Ct. 389, 52 L. Ed. 547 ; Standard Paint Co. v. Trinidad Asphalt Mfg. Co., 220 U. S. 446, 31 Sup. Ct. 456, 55 L. Ed. 536 ; Louisville & N. R. Co. v. F. W. Cook Brewing Co., 223 U. S. 70, 32 Sup. Ct. 189, 56 L. Ed. 355, ante, p. 521. See "Courts," Dec. Dig. (Key-No^ 382; Cent. Dig. 1020. 7* Rouse v. Hornsby, 161 U. S. 588, 16 Sup. Ct. 610, 40 L. Ed. 817; Shulthis v. McDougal, 225 U. S. 561, 32 Sup. Ct. 704, 56 L. Ed. 1205. See "Courts," Dec. Dig. (Key-No.) 382; Cent. Dig. 1020. 522 APPELLATE JURISDICTION (Ch. 22 the ground of diverse citizenship, but the case was dis- missed because the suit was by an assignee in a case where his assignor could not have sued, the decision of the circuit court of appeals was final, for it depended in the first in- stance on diverse citizenship, though it did not come with- in a well-recognized exception. 76 Where a suit originally depended on diverse citizenship, a federal question is not raised by the charge that a state officer erroneously construed a state law so as to deprive complainants of their property without due process of law, and to deny them the equal protection of the laws, for the act complained of in such case is not the state law itself, but the erroneous action of an officer under it. 76 A suit against a railway for loss of a registered package from the mails by negligence raises no federal question, and, if the trial court acquire jurisdiction by reason of di- verse citizenship, the appeal would go to the circuit court of appeals alone. 77 On the other hand, a suit against a cor- poration claiming its charter by act of Congress involves a federal question, and hence the decision of the circuit court of appeals is not final. 78 So, too, a suit against a marshal for a wrongful attachment raises a federal ques- tion, as it involves his official acts, and the decision of the circuit court of appeals is not final. 79 So a suit on a clerk's 75 Benjamin v. New Orleans, 169 U. S. 161, 18 Sup. Ct. 298, 42 L. Ed. 700. See "Courts," Dec. Dig. (Key-No.) 882; Cent. Dig. 1020, 76 Arbuckle v. Blackburn, 191 U. S. 405, 24 Sup. Ct. 148, 48 L. Ed. 239. See "Courts," Dec. Dig. (Key-No.) 382. 77 Bankers' Mut. Casualty Co. v. Minneapolis, St. P. & S. Ste. M. Ry. Co., 192 U. S. 371, 24 Sup. Ct. 325, 48 L. Ed. 484. See "Courts," Dec. Dig. (Key-No.) 382; Cent. Dig. 1011-1020. 7 s Northern Pac. R. Co. v. Amato, 144 U. S. 465, 12 Sup. Ct. 740, 36 L. Ed. 506 ; Union Pac. R. Co. v. Harris, 158 U. S. 326, 15 Sup. Ct. 843, 39 L. Ed. 1003 ; Texas & P. R. Co. v, Howell, 224 U. S. 577, 32 Sup. Ct. 601, 56 L. Ed. 892, ante, pp. 237, 489. See "Courts," Dec. Dig. (Key-No.) 382; Cent. Dig. 1011-1020. 79 Sonnentheil v. Christian Moerlein Brewing Co., 172 U. S. 401, 19 Sup. Ct. 233, 43 L. Ed. 492. See "Courts," Dec. Dig. (Key-No.) 382; Cent. Dig. 1011-1020. 181) APPEALS FBOM CIRCUIT COURTS OF APPEALS 523 bond for money paid into court, and not accounted for by him, involving the right of litigants to proceed on such bond. 80 So a suit against a receiver of a national bank, for he is an officer of the United States. 81 So a suit by a for- eign state. 82 So a suit in which the ground of jurisdiction was not only diverse citizenship, but an alleged infringe- ment of a trade-mark, for the jurisdiction in such case does not "depend entirely" upon diverse citizenship. 88 (d) Appeals under the Bankrupt Act Section 252 of the Judicial Code provides: "The Supreme Court of the United States is hereby in- vested with appellate jurisdiction of controversies arising in bankruptcy proceedings, from the courts of bankruptcy, from which it has appellate jurisdiction in other cases; and shall exercise a like jurisdiction from courts of bankruptcy not within any organized circuit of the United States and from the supreme court of the District of Columbia. "An appeal may be taken to the Supreme Court of the United States from any final decision of a court of appeals allowing or rejecting a claim under the laws relating to bankruptcy, under such rules and within such time as may so Howard v. U. S., Use of Stewart, 184 U. S. 676, 22 Sup. Ct 543, 46 L. Ed. 754. See "Courts," Dec. Dig. (Key-No.) 38%; Cent. Dig. 1011-1020. siAuten v. United States Nat Bank, 174 U. S. 125, 19 Sup. Ct 628, 43 L. Ed. 920. See "Courts," Dec. Dig. (Key-No.) 382; Cent. Dig. 1011-1020. sz Colombia v. Cauca Co., 190 U. S. 524, 23 Sup. Ct 704, 47 L. Ed. 1159. See "Courts," Dec. Dig. (Key-No.) 382; Cent. Dig. 1011- 1020. ss Warner v. Searle & Herein Co., 191 U. S. 195, 24 Sup. Ct. 79, 48 L. Ed. 145. Since the above decision the act of February 20, 1905, makes the decision of the circuit court of appeals final in suits for infringement of trade-marks. Hutchinson Pierce & Co. v. Loewy, 217 U. S. 457, 30 Sup. Ct 613, 54 L. Ed. 838. But the act does not apply where other questions than mere infringement are involved, such as the issue of unfair competition. Standard Paint Co. v. Trinidad Asphalt Mfg. Co., 220 U. S. 446, 31 Sup. Ct. 456, 55 L. Ed. 536. See "Courts," Dec. Dig. (Key-No.) 382; Cent. Dig. 1011- 1020. 524 APPELLATE JURISDICTION (Ch. 22 be prescribed by said Supreme Court, in the following cases and no other: "First. Where the amount in controversy exceeds the sum of two thousand dollars, and the question involved is one which might have been taken on appeal or writ of er- ror from the highest court of a state to the Supreme Court of the United States; or "Second. Where some justice of the Supreme Court shall certify that in his opinion the determination of the ques- tion involved in the allowance or rejection of such claim is essential to a uniform construction of the laws relating to bankruptcy throughout the United States. "Controversies may be certified to the Supreme Court of the United States from other courts of the United States, and the former court may exercise jurisdiction thereof, and may issue writs of certiorari pursuant to the provisions of the United States laws now in force or such as may be hereafter enacted." 8 * Where an order had been made postponing a claim to another, from which no appeal was taken, the question whether this order was properly construed by the referee and court in carrying out their duties of administration was not one from which an appeal would lie. 85 The only ap- peal from an order refusing a discharge is to the circuit court of appeals. Its action cannot be reviewed by the Supreme Court. 86 84 HOLDEN v. STRATTON, 191 U. S. 115, 24 Sup. Ct. 45, 48 L. Ed. 116. See "Bankruptcy," Dec. Dig* (Key-No.) 448, 453; Cent. Dig. 914. 85 Wynkoop-Hallenbeck-Crawford Co. v. Gaines, 227 U. S. 4, 33 Sup. Ct. 214, 57 L. Ed. . See "Bankruptcy," Dec. Dig. (Key-No.) 448, 453. SB James v. Stone & Co., 227 U. S. 410, 33 Sup. Ct. 351, 57 L. Ed. . See "Bankruptcy," Dec. Dig. (Key-No.) 448, 453; Cent. Dig. 914. 182) APPEALS FROM TERRITOBIAL COURTS 525 APPEALS FROM COURTS OF THE TERRITORIES OR DEPENDENCIES 182. A limited class of cases may be taken to the Supreme Court from certain courts of Porto Rico, Hawaii, Alaska and the Philippines. As all the territories comprised within the borders of the United States proper are now states, the enactments as to territorial courts lose their importance. But there are spe- cial provisions as to the dependencies. As to Porto Rico, section 244 of the Judicial Code allows a review in the Supreme Court of copyright, constitutional or treaty questions or claims of -authority under acts of Congress, without regard to the sum or value of the mat- ter in dispute, and in all other cases involving more than five thousand dollars. As to Hawaii, section 246 of the Judicial Code allows a right of review of its supreme court in the same class of cases in which the Supreme Court of the United States would have a right of review of the decisions of a state court, and also in cases involving over five thousand dol- lars. As to Alaska, section 247 of the Judicial Code gives a right of review to the Supreme Court in prize cases, con- stitutional questions, or treaty questions. As to the Philippines, section 248 of the Judicial Code gives a right of review to the Supreme Court of constitu- tional questions, questions involving any statute, treaty, title, right, or privilege of the United States, and also cases involving over twenty-five thousand dollars in amount, or land suits involving over that sum in value. 81 87 Harty v. Municipality of Victoria, 226 U. S. 12, 33 Sup. Ct. 4, 57 L. Ed. . See "Courts," Dec. Dig. (Key-No.) 387. 526 APPELLATE JURISDICTION (Ch. 22 APPEALS FROM THE COURT OF APPEALS OF THE DISTRICT OF COLUMBIA 183. The Supreme Court has jurisdiction to review deci- sions of the court of appeals of the District of Columbia only in cases involving constitutional, international, or constructional questions, but may bring up other cases by certiorari. The appellate jurisdiction of the Supreme Court over the court of appeals of the District of Columbia is regulated by sections 250 ar.d 251 of the Judicial Code. The first of these sections is based on the idea of giving a review only of the class of questions which could be brought up from inferior courts of the states or of the United States. The first four classes named are the same as those named in section 238 providing for a review of the decisions of the district courts. The fifth adds cases of federal questions arising in the state courts which might be taken to the Su- preme Court as provided in section 237 of the Judicial Code. And the sixth and last gives a right of review where the construction of any law of the United States is drawn in question by the defendant. All other decisions are final, except that under section 251 the Supreme Court may issue a certiorari to bring up any decision in such case. This section also allows the court of appeals of the District to certify questions of law up to the Supreme Court ; and sec- tion 250 requires only the question of jurisdiction to be certified up when the appeal is claimed on that ground. These provisions radically change the pre-existing law, and assimilate appeals in the District to those in the states. 186) REVIEW OF STATE COURT DECISIONS 527 APPEALS FROM THE COURT OF CLAIMS 184. Under section 242 of the 'Judicial Code, judgments against the United States in any case in which the amount in controversy exceeds three thousand dollars, and judgments forfeiting a plaintiff's claim for fraud under the provisions of section 172 of the Judicial Code are reviewable by the Supreme Court. APPEALS FROM THE COMMERCE COURT 185. Under section 210 of the Judicial Code, appeals from the commerce court lie to the Supreme Court un- der rigid provisions as to promptness and as to superseding the judgment appealed from.* REVIEW OF STATE COURT DECISIONS 186. In order to insure the proper administration of federal laws, the Supreme Court is given jurisdiction to review by writ of error the final decisions of the state court which is the court of last resort in the special instance, in cases involving any question of conflict between state and federal laws or au- thority, where such decision is against the federal law or authority; that is, in cases involving con- stitutional questions as to the relative boundaries of state and federal rights. The right to review decisions of state courts is given by section 237 of the Judicial Code, which reads as follows : "A final judgment or decree in any suit in the highest court of a state in which a decision in the suit could be had, where is drawn in question the validity of a treaty or * Repealed by the act of October 22, 1913, post, p. 701. 528 APPELLATE JURISDICTION (Ch. 22 statute of, or an authority exercised under, the United States, and the decision is against their validity; or where is drawn in question the validity of a statute of, or an au- thority exercised under any state, on the ground of their being repugnant to the Constitution, treaties, or laws of the United States, and the decision is in favor of their va- lidity; or where any title, right, privilege, or immunity is claimed under the Constitution, or any treaty or statute of, or commission held or authority exercised under, the Unit- ed States, and the decision is against the title, right, privi- lege, or immunity especially set up or claimed, by either party, under such Constitution, treaty, statute, commission, or authority, may be re-examined and reversed or affirmed in the Supreme Court upon a writ of error. The writ shall have the same effect as if the judgment or decree com- plained of had been rendered or passed in a court of the United States. "The Supreme Court may reverse, modify, or affirm the judgment or decree of such state court, and may, at their discretion, award execution or remand the same to the court from which it was removed by the writ" This is the famous twenty-fifth section of the judiciary act of 1789. Its validity and policy were not sustained without contest. SAME CONSTITUTIONALITY 187. The right of Congress to give a review to the Supreme Court of decisions of the state courts on federal questions, though once vigorously contested, is set- tled by decisions. After exercising this right of review without question in several cases, it was vigorously denied by the supreme court of appeals of Virginia. In a case where its decision was reversed, and where the United States Supreme Court 187) REVIEW OF STATE COURT DECISIONS 529 sent down the mandate directing them to enter judgment in accordance with the views of the federal court, the Vir- ginia court refused to obey the mandate, and entered upon its records an order reciting that it did so because it did not consider that the Constitution authorized Congress to give a right of review of the decisions of the state courts. 88 Thereupon the Supreme Court reviewed the grounds of the refusal of the Virginia court, and decided in favor of the constitutionality of the act. 89 The ground on which the Virginia court denied the validity of the act was that the federal Constitution, properly construed, only authorized the right of review of decisions of federal courts; that the description of the judicial power contained in the Constitu- tion evidently only referred to the jurisdiction of the fed- eral courts ; that the states, in the powers reserved to them, were as supreme as the federal government in the powers delegated to it; that the two/ therefore, were co-ordinate and the state courts not inferior, but co-ordinate, to the federal courts. This view, however, was contested, not only in the same case, but in subsequent decisions of the Supreme Court, and must be considered as settled. 90 ss Hunter v. Martin, 4 Munf. (18 Va.) 1. See "Courts," Dec. Dig. (Key-No.) 391; Cent. Dig. 1045, 1092. 89 Martin v. Hunter, 1 Wheat. 304, 4 L. Ed. 97. See "Courts," Dec. Dig. (Key-No.) 391; Cent. Dig. 1045, 1092. o Cohens v. Virginia, 6 Wheat. 2G4, 5 L. Ed. 257 ; WILLIAMS v. BRUFFY, 102 U. S. 248, 26 L. Ed. 135. To the student of our politi- cal history, the opinion of Judge Roane in the Virginia court of ap- peals, denying the validity of the act, and the opinion of Chief Jus- tice Marshall in Cohens v. Virginia, 6 Wheat. 264, 5 L. Ed. 257, up- holding it, must ever remain models of powerful judicial reasoning; and the opinion of Judge Roane is well worthy, not only from its logical force, but its literary excellence, to be put in the same class with the decisions of the great Chief Justice himself. The opinion of Mr. Justice Story in the case of Martin v. Hunter does not seem, in the judgment of the author, to be equal to either of the others. Certainly, his contention that the federal Constitution re- quired Congress to confer all the judicial power granted by the Constitution upon some courts has not been sustained by the subse- quent legal history of our country, as there are many cases of federal HUGHES FED.PB.(2D ED.) 34 530 APPELLATE JURISDICTION (Ch. 22 SAME THE PROCEEDINGS REVIEWABLE 188. Any proceeding which is a suit in the state court is reviewable under this provision of law, if it in- volves any of the questions therein mentioned. It is the object of the act to protect federal constitu- tional rights, and whether they arise in an ordi- nary suit, or in an extraordinary proceeding, like habeas corpus or mandamus, provided only they are a court proceeding, they are reviewable. 91 It has been seen in another connection that there are many court proceedings which are yet not suits at law or in equity, in the sense in which that term is used when dis- cussing the original jurisdiction of the federal courts. That criterion, however, does not apply to these cases in the state courts, and the term is used in a wider sense than in discussing the character of proceedings cognizable in the federal trial courts. 92 There is no monetary limit to the right of review in these cases, the question itself being of sufficient importance, no matter how small the amount involved ; and, as a matter of fact, many of the cases taken to the Supreme Court under this provision have involved very small amounts. 93 jurisdiction which could have been conferred upon the federal court, but have not been. See "Courts," Dec. Dig. (Key-No.) S91; Cent. Dig. 1045, 1092. siHartman v. Greenhow, 102 IT. S. 672, 26 L. Ed. 271; American Exp. Co. v. Michigan, 177 U. S. 404, 20 Sup. Ct. 695, 44 L. Ed. 823. See "Courts," Dec. Dig. (Key-No.) 391; Cent. Dig. 1045, 1092. 92 Cases supra. 3 Buel v. Van Ness, 8 Wheat. 312, 5 L. Ed. 624; The Paquete Habana, 175 U. S. 677, 20 Sup. Ct 290, 44 K Ed. 320. See "Courts," Dec. Dig. (Key-No.) 894. 189) REVIEW OF STATE COUBT DECISIONS 531 SAME THE COURTS WHOSE DECISIONS ARE REVIEWABLE 189. The language of the act is, "The highest court of a state in which a decision in the suit could be had." This means the court having final jurisdiction over the special question, not necessarily the state court of highest rank. It must, however, be a decision of a court, not merely an order of the judge at chambers. 94 It means the last court which could decide the special question, 95 but, where an at- tempt is made to review under this provision the decision of a court which is not the highest court of the state, it must be shown that this is the court which has final juris- diction of the special question. If there is a discretionary right of review of such a court by a higher court, the rec- ord must show that the party has exhausted his efforts to- obtain the benefits of such review before he can take the case up from the lower of the two courts. 96 If an appli- cation, however, is made to the highest court of a state for the allowance of an appeal, and that court refuses it, but retains no copy of the record, then the decision should go to the lower court, where the record remains; but if the appellate court acts as a court, and refuses the appeal, and" makes an entry of it on its minutes, and retains a copy of the record, then the appeal should go to the higher court. 9T 94 McKnight v. James, 155 U. S. 685, 15 Sup. Ct 248, 39 L. Ed. 310. See "Courts," Dec. Dig. (Key-No.) 392; Cent. Dig. 1046, 1047. 95 Missouri, K. & T. R. Co. v. Elliott, 184 U. S. 530, 22 Sup. Ct 446, 46 L. Ed. 673. See "Courts," Dec. Dig. (Ken-~So.) 39 >; Cent. Dig. 1046, 1047- Gregory v. McVeigh, 23 Wall. 294, 23 L. Ed. 156; Fisher v. Perkins, 122 U. S. 522, 7 Sup. Ct. 1227, 30 L. Ed. 1192; Mullen v. Western Union Beef Co., 173 U. S. 116, 19 Sup. Ct. 404, 43 L. Ed. 635. See "Courts," Dec. Dig. (Kcv-Xo.) 392; Cent. Dig. 1046, 1047. 97 POLLEYS v. BLACK RIVER IMPROVEMENT CO., 113 U. S. 81, 5 Sup. Ct. 369, 28 L. Ed. 938 ; Stanley v. Schwalby, 162 U. S. 255^ 532 APPELLATE} JURISDICTION (Ch. 22 The writ of error must go to the highest state court, if it has jurisdiction of the matter, even though, as a matter of fact, it is a foregone conclusion that it will act adversely, as in cases of second appeals on questions already settled. 98 SAME BY WHOM THE RIGHT OF REVIEW MAY BE INVOKED 190. Only the party actually injuriously affected by the ad- verse decision can claim such a right of review, not third parties who would be indirectly interested in an adverse decision of the federal question." Only a party against whose federal claim the decision is rendered can appeal, not one in whose favor such a decision is made. 1 SAME CHARACTER OF QUESTIONS RE- VIEWABLE 191. The only questions re viewable under this section are cases of conflicting state and federal rights, viz.: (a) Cases where is drawn in question the validity of a treaty or statute of, or an authority exercised un- der, the United States, and the decision is against the validity. 16 Sup. Ct. 754, 40 L. Ed. 960; Bacon v. Texas, 163 U. S. 207, 16 Sup. Ct. 1023, 41 L. Ed. 132; Wedding v. Meyler, 192 U. S. 573, 24 Sup. Ct. 322, 48 L. Ed. 570; post, p. 569. See "Courts," Dec. Did. {Key-No.) 392; Cent. Dig. 1046, 1047. 98 GREAT WESTERN TELEGRAPH CO. v. BURNHAM, 162 U. S. 339, 16 Sup. Ct 850, 40 L. Ed. 991. See, also, Louisiana Naviga- tion Co. v. Oyster Commission of La., 226 U. S. 99, 33 Sup. Ct. 78, 57 L. Ed. . See "Courts," Dec. Dig. (Key-No.) 892; Cent. Dig. 1046, 1047. 99 Tyler v. Judges of Court of Registration, 179 U. S. 405, 21 Sup. Ct. 206, 45 L. Ed. 252 ; Braxton County Court v. West Virginia, 208 U. S. 192, 28 Sup. Ct. 275, 52 L. Ed. 450. See "Courts," Dec. Dig. {Key-No.) 395; Cent. Dig. 1078, 1079. i Ryan v. Thomas, 4 Wall. 603, 18 L. Ed. 460 ; Rutland R. Co. v. Central Vermont R. Co., 159 U. S. 630, 638, 16 Sup. Ct. 113, 40 L. Ed. 191) REVIEW OF STATE COURT DECISIONS 533 (b) Cases where is drawn in question the validity of a statute of, or an authority exercised under, any state, on the ground of their being repugnant to the Constitution, treaties, or laws of the United States, and the decision is in favor of their validity. (c) Cases where any title, right, privilege, or immunity is claimed under the Constitution, or any treaty or statute of, or commission held or authority exer- cised under, the United States, and the decision is against the title, right, privilege, or immunity spe- cially set up or claimed by either party under such Constitution, treaty, statute, commission, or au- thority. The character of the question decides the right of review, and the citizenship of the parties has nothing to do with it. 2 It is equally manifest that the questions reviewable in this manner are simply federal constitutional questions that is, conflicts of state and federal authority and that ques- tions of the conflict of a state statute with a state con- stitution do not fall under any of these classes. 3 Nor do mere questions of construction, either of the federal or state laws, come under any of these classes, where no ques- tion of their validity is involved. 4 Nor are questions of 284. See "Courts," Dec. Dig. (Key-No.) 395; Cent. Dig. 1078, 1079. 2 French v. Hopkins, 124 U. S. 524, 8 Sup. Ct. 589, 31 L. Ed. 536; Barrington v. Missouri, 208 U. S. 483, 27 Sup. Ct. 582, 51 L. Ed. 890. See "Courts," Dec. Dig. (Key-No.) 394; Cent. Dig. 10^9-1077. s Missouri ex rel. Hill v. Dockery, 191 U. S. 165, 24 Sup. Ct. 53, 48 L. Ed. 133 ; Smith v. Jennings, 206 U. S. 276, 27 Sup. Ct 610, 51 L. Ed. 1061 ; Kiernan v. City of Portland, 223 U. S. 151, 32 Sup. Ct 231, 56 L. Ed. 386. See "Courts," Dec. Dig. (Key-No.) 33.); Cent. Dig. 1049-1077. * Choteau v. Marguerite, 12 Pet 507, 9 L. Ed. 1174 ; Iroquois Transp. Co. v. Delaney Forge & Iron Co., 205 U. S. 354, 27 Sup. Ct 509, 51 L. Ed. 836; Smithsonian Institution v. St. John, 214 U. S. 19, 29 Sup. Ct. 601, 53 L. Ed. 892. See "Courts," Dec. Dig. (Key-No.) 394; Cent. Dig. 1049-1077. 534 APPELLATE JURISDICTION (Ch. 22 general law thus reviewable. 5 The questions, in order to be reviewable, however, must be sufficiently open to doubt to show that the claim is bona fide and with some color of merit, and not a bare assertion of an obviously unfounded one. 6 The effect of a proceeding to review the decision of the state courts under this section is simply to bring up feder- al questions of law. 7 Even in a chancery case only ques- tions of law are reviewable, for the statute provides that the decisions of the state courts are reviewable only by writ of error, and it could not have been the intention to give a general review of all questions of law and fact involved in the case so taken up. 8 The classes of questions reviewable, as has been seen, subdivide into three. The first of these is where the valid- ity of a treaty or statute or authority exercised under the United States is questioned in the state court; but such a federal statute or authority must be actually drawn in question, and no review lies from a mere decision of a state court construing a federal statute. 9 Hence there are many s Grame v. Mutual Assur. Co., 112 TJ. S. 273, 5 Sup. Ct 150, 28 L. Ed. 716. Nor were questions of pleading involving no denial of a federal right. Brinkmeier v. Missouri Pac. R. Co., 224 U. S. 268, 32 Sup. Ct. 412, 56 L. Ed. 758. See "Courts," Dec. Dig. (Key-No.) 394; Cent. Dig. 1049-1077. 6 Wabash R. Co. v. Flannigan, 192 U. S. 29, 24 Sup. Ct. 224, 48 L. Ed. 328 ; Gring v. Ives, 222 U. S. 365, 32 Sup. Ct 167, 56 L. Ed. 235 ; Deming v. Carlisle Packing Co., 226 U. S. 102, 83 Sup. Ct 80, 57 L. Ed. . See "Courts," Dec. Dig. (Key-No.) 394; Cent. Dig. 1049- 1077. 7 Chapman & D. Land Co. v. Bigelow, 206 U. S. 41, 27 Sup. Ct. 679, 51 L. Ed. 953. See "Courts," Dec. Dig. (Key-No J 399; Cent. Dig. 1089-1090. s EGAN v. HART, 165 U. S. 188, 17 Sup. Ct. 300, 41 L. Ed. 680 ; Earling v. Ernigh, 218 U. S. 27, 30 Sup. Ct. 672, 54 L. Ed. 915. But it may be necessary to look into questions of fact to ascertain the federal question involved. Cedar Rapids Gaslight Co. v. City of Cedar Rapids, 223 U. S. 655, 32 Sup. Ct. 389, 56 L. Ed. 594. See "Courts," Dec. Dig. (Key-No.) 399; Cent. Dig. 1089-1090. Kennard v. Nebraska, 186 U. S. 304, 22 Sup. Ct. 879, 46 L. Ed. 191) REVIEW OF STATE COURT DECISIONS 535 federal questions upon which the state courts can pass, and over which the federal courts have no right of review, such as questions of mere construction, not appearing on the face of the plaintiff's pleading, in which case, as has been seen, no right of removal exists, or questions so appearing in cases involving less than three thousand dollars, or pro- ceedings not amounting to suits, in which cases, also, no right of removal exists. The second of these classes is where a state statute is questioned in the state court as repugnant to the federal Constitution or laws, and the court sustains the state stat- ute. This is a very common class of jurisdiction. One of the most frequent instances of its exercise is where state laws are alleged to violate the constitutional provisions against impairing the obligation of contracts a provision applying not simply to the acts of the state legislature, but also to the acts of any subordinate legislative body, like a municipality, but not the acts of executive or judicial offi- cers. 10 Another instance is the question whether the tak- ing of property under a state statute constitutes a taking for public use, or deprives the party of his property with- out due process of law. 11 The third class, under the stat- ute, is where a title, right, privilege, or immunity is claimed under the federal Constitution or laws, or a commission or authority exercised under the United States, and the de- cision is against the right specially set up or claimed by 1175. See "Courts," Dec. Dig. (Key-No.) 394; Cent. Dig. 1049- 1077. 10 Williams v. Louisiana. 103 U. S. 637, 26 L. Ed. 595; Citizens' Bank v. Parker, 192 U. S. 73, 24 Sup. Ct. 181, 48 L. Ed. 346; Grand Rapids & 1. R. Co. v. Osborn, 193 U. S. 17, 24 Sup. Ct. 310, 48 L. Ed. 598; Bacon v. Texas, 163 U. S. 207, 16 Sup. Ct. 1023, 41 L. Ed. 132; State of Louisiana ex rel. Hubert v. New Orleans, 215 U. S. 170, 30 Sup. Ct 40, 54 L. Ed. 144. See "Courts," Dec. Dig. (Key-No.) 394; Cent. Dig. 10 49-1077. 11 Fallbrook Irr. Dist. v. Bradley, 164 U. S. 112, 17 Sup. Ct. 56, 41 L. Ed. 369. See "Courts," Dec. Dig. (Key-No.) 394; Cent. Dig. 1049-1077. 536 APPELLATE JURISDICTION (Ch. 22 either party. This also is a very common exercise of the jurisdiction. It cannot be invoked, however, where both parties set up title through a common source to the United States. 12 It covers, however, not simply questions of valid- ity or supremacy of the federal Constitution or laws, but also authority exercised under the United States in this respect being wider than the clause conferring jurisdiction on the trial courts of the United States by removal, where only questions under the Constitution or laws give the right. 13 The question whether a proceeding in a state court put the accused twice in jeopardy, contrary to the provisions of the federal Constitution, raises such a ques- tion. 14 The question as to the effect of a sale under the bankrupt law is such a question. 15 So, also, the question whether a party is entitled to a removal of his case from the state court under the provisions of the removal act. 16 So rights or causes of action claimed under the national banking law. 17 So, too, the question whether a carrier 12 California ex rel. Hastings v. Jackson, 112 U. S. 233, 5 Sup. Ct. 113, 28 L. Ed. 712. See "Courts," Dec. Dig. (Key-No.) 394; Cent. Dig. 1049-1077. is Carson v. Dunham, 121 U. S. 421, 427, 7 Sup. Ct. 1030, 30 L. Ed. 992. See "Courts," Dec. Dig. (Key-No.) 394; Cent. Dig. 1049-1077. i* Keerl v. State of Montana, 213 U. S. 135, 29 Sup. Ct. 469, 53 L. Ed. 734. See "Courts," Dec. Dig. (Key-No.) 394; Cent. Dig. 1 049-1 077. is Factors' & Traders' Ins. Co. v. Murphy, 111 U. S. 738, 4 Sup. Ct 679, 28 L. Ed. 582 ; New Orleans, S. F. & L. R. Co. v. Delamore, 114 U. S. 501, 5 Sup. Ct 1009, 29 L. Ed. 244. So the denial of the right of a trustee in bankruptcy to recover assets of the estate. Rector v. City Deposit Bank Co., 200 U. S. 405, 26 Sup. Ct. 289, 50 L. Ed. 527. Compare Corbett v. Craven, 215 U. S. 125, 30 Sup. Ct 64, 54 L. Ed. 122. So the refusal of a state court to give effect to a discharge. Zavelo v. Reeves, 227 U. S. 625, 33 Sup. Ct. 365, 57 L. Ed. . See "Courts," Dec. Dig. (Key-No.) 394; Cent. Dig. 1049- 1077. IB SOUTHERN RY. CO. v. ALLISON, 190 U. S. 326, 23 Sup. Ct 713, 47 L. Ed. 1078. See "Courts," Dec. Dig. (Key-No.) 394; Cent. Dig. 1049-1077. IT McCorruick v. Market Nat Bank, 165 U. S. 538, 17 Sup. Ct 433, 192) REVIEW OF STATE COURT DECISIONS 537 who pays duties on imports exacted under a federal statute has a lien against the owner of the goods for reimburse- ment. 18 SAME HOW A FEDERAL QUESTION MUST BE RAISED OR SHOWN BY THE RECORD 192. In order to avail of the right to review the action of a state court on a federal question, it must be raised in the state court in the manner in which a question of that nature should be raised by the state practice, and the record must show this. If, for instance, it arises in connection with a question of evidence, and the party in the state court does not sea- sonably object or take a proper bill of exceptions to the action of the state court, where a bill of exceptions is nec- essary, and therefore the state Supreme Court decides that the question cannot be considered, because not properly raised, the benefit of the question is lost. 19 It need not necessarily appear in the pleadings, and in fact there are many questions which could not be made to appear by the pleadings, but it must certainly appear somewhere in the record that the point was made and insisted upon. On this subject Chief Justice Fuller has said: "As the validity of no treaty or statute of, or authority exercised under, the United States, nor of a statute of, or authority exercised under, any state, was drawn in question, 41 L. Ed. 817; Talbot v. First Nat. Bank, 185 U. S. 172, 22 Sup. Ct. 612, 46 L. Ed. 857. See "Courts," Dec. Dig. (Key-No.) 394; Cent. Dig. 1049-1077. is Wabash R. Co. v. Pearce, 192 U. S. 179, 24 Sup. Ct 231, 48 L. Ed. 397. See "Courts," Dec. Dig. (Key-No.) 394; Cent. Dig. 1049-1077. i o Mutual Life Ins. Co. v. McGrew, 188 U. S. 291, 23 Sup. Ct. 375, 47 L. Ed. 480, 63 L. R. A. 33; Thomas v. Iowa, 209 U. S. 258, 28 Sup. Ct. 487, 52 L. Ed. 782; St. Louis, I. M. & S. R. Co. v. Taylor, 210 U. S. 281, 28 Sup. Ct 616, 52 L. Ed. 1061. See "Courts," Dec. Dig. (Key-No.) 396; Cent. Dig. 1080. 538 APPELLATE JURISDICTION (Ch. 22 it is essential to the maintenance of our jurisdiction that it should appear that some title, right, privilege, or immunity under the Constitution or laws of the United States was specially set up or claimed in the state court, and that the decision of the highest court of the state in which such de- cision could be had was against the title, right, privilege, or immunity so set up or claimed, and in that regard certain propositions must be regarded as settled : "(1) That the certificate of the presiding judge of the state court as to the existence of grounds upon which our interposition might be successfully invoked, while always regarded with respect, cannot confer jurisdiction upon this court to re-examine the judgment below. "(2) That the title, right, privilege, or immunity must be specially set up or claimed at the proper time and in the proper way. "(3) That such claim cannot be recognized as properly made when made for the first time in a petition for rehear- ing after judgment. "(4) That the petition for the writ of error forms no part of the record upon which action is taken here. "(5) Nor do the arguments of counsel, though the opin- ions of the state courts are now made such by rule. "(6) The right on which the party relies must have been called to the attention of the court in some proper way, and the decision of the court must have been against the right claimed. "(7) Or at all events it must appear from the record by clear and necessary intendment that the federal question was directly involved, so that the state court could not have given judgment without deciding it; that is, a definite issue as to the decision of the right must be distinctly de- ducible by the record before the state court can be held to have disposed of such federal question by its decision." 20 20 SAY WARD v. DENNY, 158 TJ. S. 180, 15 Sup. Ct. 777, 39 L. Ed. 941; Hulbert v. Chicago, 202 U. S. 275, 26 Sup. Ct. 617, 50 L. Ed. 1026. See "Courts," Dec. Dig. (Key-No.) 398; Cent. Dig. 1085- 1088. 192) REVIEW Or STATE COURT DECISIONS 539 The requirement as to the record showing is a little stronger in the third class of questions than in the first two due to the fact that in the third class it is required by the language of the statute itself that the title, right, privi- lege, or immunity must be specially set up and claimed. On this point the Supreme Court has said: "To the argument that the federal right was not special- ly set up and claimed, in the language of Rev. St. 709 (U. S. Comp. St. 1901, p. 575), it is replied that this is not one of the cases in which it is necessary to do so. Under this section there are three classes of cases in which the final decree of a state court may be re-examined here: "(1) Where is drawn in question the validity of a treaty or statute of, or authority exercised under, the United States, and the decision is against their validity. "(2) Where is drawn in question the validity of a stat- ute of, or an authority exercised under, any state, on the ground of their being repugnant to the Constitution, treat- ies, or laws of the United States, and the decision is in favor of their validity. "(3) Or where any title, right, privilege, or immunity is claimed under the Constitution or any treaty or statute of, or commission held or authority exercised under, the Unit- ed States, and the decision is against the title, right, privi- lege, or immunity specially set up and claimed by either party under such Constitution, statute, commission, or au- thority. "There is no doubt that under the third class the federal right, title, privilege, or immunity must be, with possibly some rare exceptions, specially set up or claimed, to give this court jurisdiction. "But where the validity of a treaty or statute of the Unit- ed States is raised, and the decision is against it, or the validity of a state statute is drawn in question, and the de- cision is in favor of its validity, this court has repeatedly held that if the federal question appears in the record, and 540 'APPELLATE JURISDICTION (Ch. 22 was decided, or such decision was necessarily involved in the case, and the case could not have been determined with- out deciding such question, the fact that it was not spe- cially set up and claimed is not conclusive against the re- view of such question here." 21 The question must be raised before a judgment in the state court, and if of the third class, must, as has been seen, be specially set up. 22 It may be raised by a motion for a new trial and assignment of errors in the state court, if that is not too late under the state practice, especially if the opinion of the state court shows that the question was passed upon. 23 It cannot, however, be raised for the first time in the assignment of errors and petition for a writ of error in the United States Supreme Court. 24 It cannot be raised for the first time by a petition for rehearing in the state appellate court if the petition is refused, but if the state court on the petition for rehearing, considers the question, then it is properly in the record for the purposes of review by the United States Supreme Court. 25 It must appear from the record, however, that the case in the state court turned on the federal question, and that it must have 21 Columbia Water Power Co. v. Columbia Electric Street R., Light & Power Co., 172 U. S. 475, 19 Sup. Ct. 247, 43 L. Ed. 521 ; Harding v. Illinois, 196 U. S. 78, 25 Sup. Ct. 176, 49 L. Ed. 394. See "Courts," Dec. Dig. (Key-No.) 396; Cent. Dig. 1080. 22 Yazoo & M. R. Co. v. Adams, 180 U. S. 1, 21 Sup. Ct. 240, 45 L. Ed. 395 ; Turner v. Richardson, 180 U. S. 87, 21 Sup. Ct 295, 45 L. Ed. 438. See "Courts," Dec. Dig. (Key-No.) 396; Cent. Dig. 1080. 23 Rothschild v. Knight, 184 U. S. 334, 22 Sup. Ct. 391, 46 L. Ed. 573; Farmers' & Merchants' Ins. Co. v. Dobney, 189 U. S. 301, 23 Sup. Ct. 565, 47 L. Ed. 821 ; Chambers v. Baltimore & O. R. Co., 207 U. S. 142, 28 Sup. Ct. 34, 52 L. Ed. 143. See "Courts," Dec. Dig. (Key-No.) 396; Cent. Dig. 1080. 24 Appleby v. City of Buffalo, 221 U. S. 524, 31 Sup. Ct. 699, 55 L. Ed. 838. See "Courts," Dec. Dig. (Key-No.) 396; Cent. Dig. 10SO. 25McCorquodale v. Texas, 211 U. S. 432, 29 Sup. Ct. 146, 53 L. Ed. 269 ; Kentucky Union Co. v. Commonwealth of Kentucky, 219 U. S. 140, 31 Sup. Ct. 171, 55 L. Ed. 137. See "Courts," Dec. Dig. (Key- No.) 398; Cent. Dig. 1085-1088. 192) REVIEW OF STATE COUBT DECISIONS 541 been passed upon, not merely that it might have been. 28 If the record shows that the federal question was necessarily involved, so that a decision could not have been rendered without passing upon it, then it is sufficiently involved for the purposes of a review by the United States Supreme Court, even though the opinion of the state court does not show that it was passed upon, or though the state court failed to make an express ruling upon it. 27 Where there is no opinion filed by the state court, the certificate of the court that a federal question was passed upon will be considered by the Supreme Court in deciding whether such a question was involved. 28 It is frequently the' case that the record in a state court shows not only federal questions, but nonfederal questions as well. If, under these circumstances, the decision of the state court on the nonfederal question is sufficient to dis- pose of the case without taking the federal question into consideration at all, then no right of review of the case exists in the United States Supreme Court, and it will dis- miss a writ of error taken in such a case. 29 The Supreme Court in such a review has jurisdiction, although it may 2e Detroit City Ry. Co. v. Guthard, 114 U. S. 136, 5 Sup. Ct 811, 29 L. Ed. 118 ; New York Cent & H. R. R. Co. v. New York, 186 U. S. 269, 22 Sup. Ct 916, 46 L. Ed. 1158. See "Courts," Dec. Dig, (Key-No.) 398; Cent. Dig. 1085-1088. 27 Chicago Life Ins. Co. v. Needles, 113 U. S. 574, 5 Sup. Ct 681, 28 L. Ed. 1084; Arrowsmith v. Harmoning, 118 U. S. 194, 6 Sup. Ct. 1023, 30 L. Ed. 243 ; Erie R. Co. v. Purdy, 185 U. S. 148, 22 Sup. Ct 605, 46 L. Ed. 847. See "Courts," Dec. Dig. (Key-No.) 398; Cent. Dig. 1085-1088. 28 Gulf & S. I. R. Co. v. Hewes, 183 U. S. 66. 22 Sup. Ct 26, 46 L. Ed. 86 ; Rector v. City Deposit Bank Co., 200 U. S. 405, 26 Sup. Ct 289, 50 L. Ed. 527. But while such certificate may aid in removing a doubt, it cannot supply a total failure of the record to show a federal question. Louisville & N. R. Co. v. Smith, 204 U. S. 551, 27 Sup. Ct 401, 51 L. Ed. 612; Seaboard Air Line R. Co. v. Duvall, 225 U. S. 477, 32 Sup. Ct 790, 56 L. Ed. 1171. See "Courts," Dec. Dig. (Key-No.) 398; Cent. Dig. 1085-1088. 29 EUSTIS v. BOLLES, 150 U. S. 361, 14 Sup. Ct 131, 37 L. Ed. 1111; Arkansas Southern R. Co. v. German Nat. Bank, 207 U. S. 270. 28 Sup. Ct 78, 52 L. Ed. 201; Berea College v. Kentucky, 211 542 APPELLATE JURISDICTION (Ch. 22 turn out, as the final result, that the federal question claimed was not legally sustainable, for it must have juris- diction to consider at least the question whether it is sus- tainable or not. 30 It appears from the discussion of the various classes of federal jurisdiction heretofore considered that there are three contingencies under which a federal question can come before the federal courts for decision, and slightly different principles regulate each one of these cases. The first is in connection with the original jurisdiction of the federal trial courts, whether in actions originally instituted in them, or actions taken to them by removal. In these cases a federal question may arise not simply in connec- tion with the federal Constitution, as affecting the validity of a state or federal law, but also in connection with the construction of both the federal Constitution, laws, and treaties. Whenever under them the right of recovery hinges upon the construction or application of the federal Constitution, laws, or treaties, such a question is involved, and the original jurisdiction of the federal court vests, pro- vided the fact that such a question is involved appears upon the plaintiff's pleadings. In this connection, therefore, the term "federal question" is used in its widest sense. 31 The second class in which federal questions may arise is in connection with the right of appeal from the federal courts of original jurisdiction direct to the Supreme Court. This class of questions, however, is federal constitutional questions, not mere questions of the construction or appli- cation of a federal law. They may arise, however, not only when the plaintiff's pleadings show such a question to be U. S. 45, 29 Sup. Ct. 33, 53 L. Ed. 81. See "Courts," Dec. Dig. (Key- No.) 391; Cent. Dig. 1045, 1092. so Chicago Life Ins. Co. v. Needles, 113 U. S. 574, 5 Sup. Ct. 681, 28 L. Ed. 1084; Blythe v. Hinckley, 180 U. S. 333, 21 Sup. Ct. 390, 45 L. Ed. 557. See "Courts," Dec. Dig. (Key-No.) 391; Cent. Dig. 1045, 1092. si Ante, pp. 235, 309. 192) KEVIEW OF STATE COURT DECISIONS 643 involved, but also when set up as a defense in the case, and they may arise in this connection whether the decision is in favor of or against the constitutional right asserted. 82 The last class is the one which has just been discussed in connection with the right of review of state court deci- sions by the Supreme Court. In this class the question need not necessarily arise by the plaintiff's pleadings, but may arise in subsequent stages of the cause. The court, however, has jurisdiction in such case only where the de- cision is against the constitutional question asserted, and the questions involved are solely federal constitutional questions, and not questions of mere construction. In this sense, therefore, the term "federal question" has its nar- rowest meaning. "Ante, PP. 497, 505. 544 PROCEDURE ON ERROR AND APPEAL (Cll. 23 CHAPTER XXIII PROCEDURE ON ERROR AND APPEAL 193. Review by the Supreme Court. 194. Same Writ of Error. 195. Same Appeal. 196. Same Other Methods. 197. Review by the Circuit Court of Appeals. 198. Trial in the Appellate Courts. REVIEW BY THE SUPREME COURT 193. Review by the Supreme Court of decisions in the cases over which it exercises appellate jurisdiction is had by means of writ of error or appeal, and by certain other methods provided by statute in cer- tain cases. Only final judgments or decrees can be made the subject of review by writ of error or appeal. The appellate courts of the United States of general in- terest are the Supreme Court and the circuit courts of ap- peals, and the jurisdiction respectively vested in them has been discussed in the two preceding chapters. It is now necessary to consider the method of invoking that jurisdic- tion, and bringing and trying cases before them. The Supreme Court The courts to which the right of review of the Supreme Court extends are, in the first place, the district courts. The time of taking an appeal from these courts is prescrib- ed by section 1008 of the Revised Statutes. 1 It must be within two years after the entry of the judgment, decree, or order which it is desired to review. iU. S. Comp. St. 1901, p. 715. 193) REVIEW BY SUPREME COURT 545 It is not every decree or order which can be made the subject of review. Were this not so, there might be an endless number of appeals in any one case; and hence it is a principle, subject to but few exceptions, to be here- after named, that only final judgments or decrees can be made the subject of appellate review. Thus the case is finally ended in the lower court, and the process of review brings before the appellate court, once and for all, the en- tire case. The question what constitutes a final judgment is a matter of little difficulty in a common-law proceeding. It is a matter of great difficulty in an equity proceeding. The flexible character of equity causes and the infinite va- riety of equity decrees render it difficult to define exactly what constitutes a final decree or order in any equity case. The general principle is that a decree is final if it settles the principles of the cause, and leaves only ministerial acts by which its decision is to be carried out; but, although it may settle the main issue in a cause, it is not final if any- thing is left to the lower court involving the exercis'e of judicial power, rather than ministerial. On this subject the Supreme Court has said : "Probably no question of equity practice has been the subject of more frequent discussion in this court than the finality of decrees. It has usually arisen upon appeals tak- en from the decrees claimed to be interlocutory, but it has occasionally happened that the power of a court to set aside such a decree at a subsequent term has been the subject of dispute. The cases, it must be conceded, are not altogether harmonious. Upon one hand, it is clear that a decree is final, though the case be referred to a master to execute the decree by a sale of property or otherwise, as in the case of the foreclosure of a mortgage. If, however, the decree of foreclosure and sale leaves the amount due upon the debt to be determined, and the property to be sold ascer- tained and defined, it is not final. A like result follows if it merely determines the validity of the mortgage, and, HUGHES FED.PB.(2o ED.) 35 546 PROCEDURE ON ERROR AND APPEAL (Ch. 23 without ordering sale, directs the case to stand continued for further decree upon the coming in of the master's re- port. "It is equally well settled that a decree in admiralty de- termining the question of liability for a collision or other tort, or in equity establishing the validity of a patent, and referring the case to a master to compute and report the damages, is interlocutory merely. "It may be said, in general, that if the court make a de- cree fixing the rights and liabilities of the parties, and thereupon refer the case to a master for a ministerial pur- pose only, and no further proceedings in court are contem- plated, the decree is final; but if it refer the case to him as a subordinate court, and for a judicial purpose, as to state an account between the parties, upon which a further decree is to be entered, the decree is not final. But even if an account be ordered taken, if such accounting be not asked for in the bill, and be ordered simply in execution of the decree, and such decree be final as to all matters within the pleadings, it will still be regarded as final." 2 Even if the appeal from the district or circuit court is on a jurisdictional question only, and by certificate, it can still be taken only after a final decree is entered in the cause. 3 2 McGOURKEY v. TOLEDO & O. R. CO., 146 TJ. S. 536, 13 Sup. Ct. 170, 36 L. Ed. 1079. See, also, Keystone Manganese & Iron Co. v. Martin, 132 U. S. 91, 10 Sup. Ct. 32, 33 L. Ed. 275 ; Guarantee Co. of North America v. Mechanics' Savings Bank & Trust Co., 173 TJ. S. 582, 19 Sup. Ct 551, 43 L. Ed. 818; Montgomery v. Anderson, 21 How. 386, 16 L. Ed. 160; United States Fidelity & Guaranty Co. v. Bray, 225 U. S. 205, 32 Sup. Ct. 620, 56 L. Ed. 1055. See "Appeal and Error," Dec. Dig. (Key-No.) 70, 71; Cent. Dig. 886-401. s Bardes v. First Nat. Bank, 175 U. S. 526, 20 Sup. Ct. 196, 44 L. Ed. 261 ; Bowker v. U. S., 186 U. S. 135, 22 Sup. Ct. 802, 46 L. Ed. 1090. See "Admiralty," Dec. Dig. (Key-No.) 103; "Courts," Dec. Dig. (Key-No.) 382. 194) BEVIEW BY SUPREME COURT 547 SAME WRIT OF ERROR 194. The review is by writ of error in cases of a common- law nature, civil or criminal, which are triable by a jury. By this method, only errors of law which have been em- bodied in the record in the manner usual in com- mon-law cases can be reviewed. The writ of error is a writ of the appellate court to the trial court for the purpose of bringing up the rec- ord for review. Notice of appeal or the issuance of a writ of error is giv- en to the parties by citation. Bond satisfactory to the judge issuing the writ or allow- ing the appeal must be given as a condition of the appeal. The seventh amendment of the Constitution provides: "In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any court of the United States, than accord- ing to the rules of the common law." Pursuant to this constitutional provision, section 1011 of the Revised Statutes* provides: "There shall be no reversal in the Supreme Court or in a circuit court upon a writ of error, for error in ruling any plea in abatement, other than a plea to the jurisdiction of the court, or for any error in fact." Under these provisions, the writ of error performs the office of bringing up for review simply questions of law in cases of common-law nature which are triable by a jury. * U. S. Comp. St 1901, p. 715. This section applies only to cases brought up from the inferior federal courts, not to cases brought up from the state courts. Ruck Stove & Range Co. v. Vickers, 226 U. S. 205, 33 Sup. Ct. 41, 57 L. Ed. . 548 PROCEDURE ON ERROR AND APPEAL (Ch. 23 The question what cases are covered by this constitutional amendment has been discussed at length in a recent de- cision of the Supreme Court. It says : "It must therefore be taken as established, by virtue of the seventh amendment of the Constitution, that either party to an action at law (as distinguished from suits in equity or in admiralty) in a court of the United States, where the value in controversy exceeds twenty dollars, has the right to a trial by jury; that, when a trial by jury has been had in an action at law in a court either of the Unit- ed States or of a state, the facts there tried and decided cannot be re-examined in any court of the United States otherwise than accprding to the rules of the common law of England ; that, by the rules of that law, no other mode of re-examination is allowed than upon a new trial, either granted by the court in which the first trial was had, or to which the record was returnable, or ordered by any appel- late court for error in law ; and therefore that, unless a new trial has been granted in one of these two ways, facts once tried by a jury cannot be tried anew, by a jury or oth- erwise, in any court of the United States. * * * "Trial by jury, in the primary and usual sense of the term at the common law and in the American Constitutions, is not merely a trial by a jury of twelve men before an offi- cer vested with authority to cause them to be summoned and impaneled, to administer oaths to them and to the con- stable in charge, and to enter judgment and issue execution on their verdict; but it is a trial by a jury of twelve men in the presence and under the superintendence of a judge empowered to instruct them on the law and to advise them on the facts, and (except on acquittal of a criminal charge) to set aside their verdict if, in his opinion, it is against the law or the evidence." 5 B CAPITAL TRACTION CO. v. HOF, 174 U. S. 1, 13, 19 Sup. Ct. 580, 43 L. Ed. 873. See "Jury," Dec. Dig. (Key-No.) 9; Cent. Dig. 194) REVIEW BY SUPREME COURT 549 The questions of law which can be examined on writ of error are simply those which appear by the record in a common-law case to have been raised and passed upon by the lower court, or to have been essential to its decision. The record in a common-law case is very different from that in an equity or admiralty case. It contains only the pleadings and orders of court, but not the evidence or the instructions, unless they have been made part of the rec- ord by a bill of exceptions. Hence on writ of error only errors of law can be considered which have been embodied in the record in the manner usual in common-law cases. 6 This same principle applies to common-law cases tried and determined by the court after a jury has been waived by the parties. There, too, according to the provisions of sec- tion 700 of the Revised Statutes, 7 only those rulings of the court in the progress of the cause which are duly ex- cepted to and presented by a bill of exceptions can be re- viewed. 8 Form and Method of Issue of Writ of Error Section 1004 of the Revised Statutes 9 provides as fol- lows: "Writs of error returnable to the Supreme Court may be issued as well by the clerks of the circuit courts under the seals thereof, as by the clerk of the Supreme Court. When so issued they shall be, as nearly as each case may admit, agreeable to the form of a writ of error transmitted to the clerks of the several circuit courts by the clerk of the Su- St. Glair v. U. S., 154 U. S. 134, 14 Sup. Ct 1002, 38 L. Ed. 936. See "Appeal and Error," Dec. Dig. (Key-No.) 859; Cent. Dig. i U. S. Comp. St. 1901, p. 570. s Norris v. Jackson, 9 Wall. 125, 19 L. Ed. 608 ; Mercantile Mut. Ins. Co. v. Folsorn, 18 Wall. 249, 21 L. Ed. 827; Town of Martinton v. Fairbanks, 112 U. S. 674, 5 Sup. Ct. 321, 28 L. Ed. 862 ; Wilson v. Merchants' Loan & Trust Co., 183 U. S. 121, 22 Sup. Ct. 55, 46 L. Ed. 113. See ante, p. 400. See "Courts," Dec. Dig. (Key-No.) 38J, 399, 406; "Appeal and Error" Cent. Dig. 3387-5593. U. S. Comp. St. 1901, p. 713. 550 PROCEDURE ON ERROR AND APPEAL (Ch. 23 preme Court, in pursuance of section 9 of the act of May 8, 1792, chapter 36. * * * " In consequence of the abolition of the circuit court by the Judicial Code the amendment of Rev. St. (U. S.) 1004, by Act Jan. 22, 1912, c. 12, 37 Stat. 54, permits the clerks of the district courts and of the circuit courts of appeals to issue the writ. This writ is the formal method of transferring the rec- ord from the inferior to the appellate court for purposes of review. Although now most frequently issued by the clerk of the district court, it is the writ and process of the Supreme Court commanding the lower court to send up to it for review the record made up as necessary for that pur- pose. Hence the original writ should be returned to the Supreme Court, whose process it is. On this subject Mr. Justice Miller says : "We are of opinion that the original writ should always be returned to this court with the transcript of the record. The writ of error is the writ of this court, and not of the circuit court, whose clerk may actually issue it. The early practice was that it could only issue from the office of the clerk of the Supreme Court, and in the case of West v. Barnes [2 Dall. 401, 1 L. Ed. 433] at the August term, 1791, it was so decided. This decision led to the enactment of the ninth section of the act of 1792, by which it was pro- vided that the clerk of the Supreme Court, assisted by any two justices of said court, should prescribe the form of a writ of error, copies of which should be forwarded to the clerks of the circuit courts, and that such writs might be issued by these clerks, under the seals of their respective courts. The form of the writ provided under this act has been in use ever since. It runs in the name of the Presi- dent, and bears the teste of the chief justice of this court. It is in form and in fact, the process of this court, directed to the judges of the circuit court, commanding them to return with said writ, into this court, a transcript of the record of the case mentioned in the writ. 194) BE VIEW BY SUPREME COUBT 551 "When deposited with the clerk of the court to whose judges it is directed, it is served; and the transcript which the clerk sends here is a return to the writ, and should be accompanied by it." 10 It is not essential that a writ of error should be allowed by any judge in appeals from one federal court to another, for such appeals are matters of right. 11 The practice, how- ever, has always been to have a writ of error allowed by a judge, and this practice is recognized by rule 36 ia of the Supreme Court, which provides : "An appeal or a writ of error from a district court direct to this court, in the cases provided for in sections 238 and 252 of the act entitled 'An act to codify, revise, and amend the laws relating to the judiciary/ approved March 3, 1911, chapter 231, may be allowed, in term time or in vacation by any justice of this court, or by any circuit judge as- signed to the district court, or by any district judge within his district, and the proper security be taken and the cita- tion signed by him, and he may also grant a supersedeas and stay of execution or of proceedings, pending such writ of error or appeal." The form of the writ of error in use, and of the citation accompanying the same, can be seen in Worcester v. Geor- gia. 18 10 MUSSINA v. CAVAZOS, 6 Wall. 355, 18 L. Ed. 810. See, also, Brown v. McConnell, 124 U. S. 489, 490, 491, 8 Sup. Ct. 559, 31 L. Ed. 495. See "Appeal and Error," Dec. Dig* (Key-No.) 399-402; Cent. Dig. 2103-2114. 11 Davidson v. Lanier, 4 Wall. 447, 18 L. Ed. 377; BARTEMEYER v. IOWA, 14 Wall. 26, 20 L. Ed. 792. There is one instance in which an appeal from an inferior federal court is not a matter of right. It is in habeas corpus cases, where the detention is under process of a state court In such case Act March 10, 1908, c. 76, 35 Stat. 40 (U. S. Comp. St. Supp. 1911, p. 255), requires a certificate from the justice or Judge allowing the appeal that there exists probable cause for an appeal. See "Courts," Dec. Dig. (Key-No.) 385, 405. 12 32 Sup. Ct. xiii. i6 Pet. 531, 532, 8 L. Ed. 483. See "Appeal and Error," Dec. Dig. (Key-No.) 399-402; Cent. Dig. 2103-2114; "Courts," Dec. Dig. (Key-No.) 397, 405; Cent. Dig. 1082. 552 PROCEDURE ON ERROR AND APPEAL (Ch. 23 The Return of the Writ of Error and the Papers Accompany- ing it Section 997 of the Revised Statutes 14 provides as fol- lows: "There shall be annexed to and returned with any writ of error for the removal of a cause, at the day and place therein mentioned, an authenticated transcript of the rec- ord, an assignment of errors, and a prayer for reversal, with a citation to the adverse party." The transcript of the record is regulated by Supreme Court rule 8, 15 which provides : "The clerk of the court to which any writ of error may be directed shall make return of the same by transmitting a true copy of the record, and of the assignment of errors, and of all proceedings in the case, under his hand and the seal of the court. * * * "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." This certificate to the record is signed by the clerk, and need not be signed by the judge. 16 The assignment of errors is a very important part of the appellate papers. Although expressly required by statute, the failure to annex an assignment of errors is not fatal to the jurisdiction. The thirty-fifth rule 17 of the Supreme Court provides as follows : "Where an appeal or a writ of error is taken from a dis- trict court direct to this court, under section 238 of the act entitled 'An act to codify, revise and amend the laws re- lating to the Judiciary,' approved March 3, 1911, chapter 14 TJ. S. Comp. St. 1901, p. 712. IB 32 Sup. Ct. vi, vil. is Worcester v. Georgia, 6 Pet. 515, 8 L. Ed. 483. See "Appeal and Error," Dec. Dig. (Key-No.) 612; Cent. Dig. 2697, 2699. 17 32 Sup. Ct. xiii. 194) REVIEW BY SUPREME COURT 553 231, the plaintiff in error or appellant shall file with the clerk of the court below, with his petition for the writ of error and appeal, an assignment of errors, which shall set out separately and particularly each error asserted and in- tended to be urged. No writ of error or appeal shall be allowed until such assignment of errors shall have been filed. When the error alleged is to the admission or to the rejection of evidence, the assignment of errors shall quote the full substance of the evidence admitted or rejected. When the error alleged is to the charge of the court, the assignment of errors shall set out the part referred to toti- derh verbis, whether it be in instructions given or in in- structions refused. Such assignment of errors shall form part of the transcript of the record, and be printed with it. When this is not done counsel will not be heard, except at the request of the court ; and errors not assigned accord- ing to this rule will be disregarded, but the court, at its option, may notice a plain error not assigned." In pursuance of the same policy, the twenty-first rule of the Supreme Court requires the counsel for the plaintiff in error or appellant to embody in his brief a specification of the errors relied on practically in the form of an assign- ment of errors. Under these provisions, the failure to an- nex' the assignment of errors to the transcript itself is not fatal to the jurisdiction, as above stated. 18 But if there is no assignment of errors in the record, and no proper specification in the brief, the appellate court will dismiss the case, as it is entitled to some assistance from counsel in winnowing out from a large record the pivotal questions. 18 is Independent School Dlst of Ackley v. Hall, 106 U. S. 428, 1 Sup. Ct. 417, 27 L. Ed. 237 ; U. S. v. Pena, 175 U. S. 500, 20 Sup. Ct. !,.-,. 44 L. Ed. 251. See "Appeal and Error," Dec. Dig. (Key-No.) i 758; Cent. Dig. 3093. i Benites v. Hampton, 123 U. S. 519, 8 Sup. Ct 254, 31 L. Ed. 260. See "Appeal and Error," Dec. Dig. (Key-No.) 758, 784; Cent. Dig. | 3093, 3126. 554 PROCEDURE ON ERROR AND APPEAL (Ch. 23 It is customary to file a short petition for the writ of er- ror with the assignment of errors, and to insert in it the prayer for reversal, but it is not essential, and almost any language at all similar would be construed as a prayer for reversal. 20 The Citation It is obvious from the above that the writ of error is not a process intended for the parties to the cause at all. It is intended for the lower court, and is a method of directing that court to send up to the appellate court the proper rec- ord. But it is essential that the parties to the cause should also have notice when it is intended to take a case to* an appellate court for review. This is accomplished by the ci- tation, which, as seen above, must also be annexed to the record, and service of it upon the opposite party is neces- sary unless waived. The provision for the citation is con- tained in section 999 of the Revised Statutes, 21 the conclu- sion of which is as follows: "When the writ is issued by the Supreme Court to a cir- cuit court, the citation shall be signed by a judge of such circuit court, or by a justice of the Supreme Court, and the adverse party shall have at least thirty days' notice. * * * This is also provided by Supreme Court rule 36, already quoted. This paper must be signed by the judge, not by the clerk, being different in this respect from the writ of error. 22 It may be served upon the party or upon his attorney of rec- ord. 23 A citation, however, is nothing but an ordinary process, giving a party notice of a new court proceeding, 20 MUSSINA v. CAVAZOS, 6 Wall. 355, 18 L. Ed. 810. See "Ap- peal and Error," Dec. Dig. (Key-No.) 400; Cent. Dig. 2107-2112. 2iTJ. S. Comp. St. 1901, p. 712. 22 Chaffee v. Hayward, 20 How. 208, 15 L. Ed. 804. See "Appeal and Error," Dec. Dig. (Key-No.) 406; Cent. Dig. 2123-2127. 23 Bigler v. Waller, 12 Wall. 142, 20 L. Ed. 260. See "Appeal and Error," Dec. Dig. (Key-No.) 407; Cent. Dig. 2120, 2128-2132. 194) REVIEW BY SUPREME COURT 655 and therefore the ordinary rules as to the service of pro- cess apply to it. A general appearance of the party is a waiver of any defects in form or service. 2 * It cannot be served by mailing it in the post office, directed to the op- posite party or his attorney. 28 In a common-law case taken up by writ of error, the taking of an appeal in open court is not a waiver of the necessity for a citation. This is be- cause a writ of error is not the act of the party, but the act of the court, and differs in this respect from an appeal, in which case, as will be seen, taking and perfecting an appeal in open court obviates the necessity for a citation. 26 The Parties to a Writ of Error The only parties who can sue out a writ of error from an obnoxious judgment are parties to the cause. 27 It is also an established principle that, if the judgment is a joint judgment, all the parties jointly interested must unite in suing out the writ of error, and their separate names must be given. It cannot be sued out merely in a firm name. 28 The reason why all the parties must join where the judg- ment is joint is that otherwise the court could not execute its decree on the parties who refused to join, and such par- ties might in their turn attempt to review the case also. But if the other parties interested do not care to appeal, the one who desires to do so can accomplish this purpose 24Chaffee v. Hayward, 20 How. 208, 15 L. Ed. 804; Aldrlch v. JEtna Ins. Co., 8 Wall 491, 19 L. Ed. 473. See "Appeal and Error," Dec. Dig. (Key-No.) 409; Cent. Dig. 2188-2190. 26Tripp v. Santa Rosa St. Ry. Co., 144 U. S. i26, 12 Sup. Ct 655, 36 L. Ed. 371. See "Appeal and Error," Dec. Dig. (Key-No.) 407; Cent. Dig. 2120, 2128-2130. 26 U. S. v. Phillips, 121 U. S. 254, 7 Sup. Ct. 874, 30 L. Ed. 914. See "Appeal and Error," Dec. Dig. (Key-No.) 397; Cent. Dig. 2101. 27 Payne v. Niles, 20 How. 219, 15 L. Ed. 895. See "Appeal and fc'rror," Dec. Dig. (Key-No.) 327; Cent. Dig. SS 1814-1835. 28 Feibelman v. Packard, 108 U. S. 14, 1 Sup. Ct. 138, 27 L. Ed. 634; Estes v. Trabue, 128 U. S. 225, 9 Sup. Ct 58, 32 L. Ed. 437. See "Appeal and Error," Dec. Dig. (Key-No.) 327; Cent. Dig. 1814-1835. 556 PROCEDURE ON ERROR AND APPEAL (Ch. 23 by a course equivalent to the old proceeding known as "summons and severance." It is not necessary to follow this proceeding exactly, but it is sufficient to give written notice to the other parties similarly interested to appear, and to make the record show that they had been so notified, and had refused to join. In this way only can all parties be bound by the action of the appellate court, and the de- cree dispose of the whole matter in controversy. A mere statement in the petition for appeal that it had been done is not sufficient for this purpose. 29 Method of Suspending the Enforcement of the Judgment Section 1000 of the Revised Statutes 30 provides as fol- lows: "Every justice or judge signing a citation on any writ of error, shall, except in cases brought up by the United States or by direction of any department of the government, take good and sufficient security that the plaintiff in error or the appellant shall prosecute his writ or appeal to effect, and if he fail to make his plea good, shall answer all damages and costs, where the writ is a supersedeas and stays execution, or all costs only where it is not a supersedeas as aforesaid." And section 1007 of the Revised Statutes 31 provides as follows : "In any case where a writ of error may be a su- persedeas, the defendant may obtain such supersedeas by serving the writ of error, by lodging a copy thereof for the adverse party in the clerk's office where the record remains, within sixty days, Sundays exclusive, after the rendering of the judgment complained of, and giving the security re- quired by law on the issuing of the citation.- But if he de- sires to stay process on the judgment, he may, having serv- ed his writ of error as aforesaid, give the security required by law within sixty days after the rendition of such judg- 2Masterson v. Herndon, 10 Wall. 416, 19 L. Ed. 953; Inglehart v. Stansbury, 151 TJ. S. 68, 14 Sup. Ct. 237, 38 L. Ed. 76. See "Ap- peal and Error," Dec. Dig. (Key-No.) 823; Cent. Dig. 1196-1805. 30 U. S. Comp. St. 1901, p. 712. i U. S. Comp. St. 1901, p. 714. 194) EEVIEW BY SUPREME COURT 657 ment, or afterward with the permission of a justice or judge of the appellate court. And in such cases, where a writ of error may be a supersedeas, execution shall not issue until the expiration of ten days." The bond required by these statutes must be taken by the judge, and he cannot delegate it to the clerk. The stat- ute implies that the bond must be approved by him, but this approval may be inferred as, for instance, where it appeared on the face of tne bond that the sureties had jus- tified before the judge. 32 This provision as to the bond is directory only, not jurisdictional, and the Supreme Court itself may give an opportunity to execute and file a proper bond after the case has been taken there. 33 The character of bonds to be given is regulated by Su- preme Court rule 29, 34 which reads as follows: "Superse- deas bonds in the district courts and circuit courts of ap- peals must be taken, with good and sufficient security, that the plaintiff in error or appellant shall prosecute his writ or appeal to effect, and answer all damages and costs if he fail to make his plea good. Such indemnity, where the judgment or decree is for the recovery of money not other- wise secured, must be for the whole amount of the judg- ment or decree, including just damages for delay, and costs and interest on the appeal ; but in all suits where the prop- erty in controversy necessarily follows the event of the suit, as in real actions, replevin, and in suits on mortgages, or where the property is in the custody of the marshal un- der admiralty process, as in case of capture or seizure, or where the proceeds thereof, or a bond for the value 2 Silver v. Ladd, 6 Wall. 440, 18 L. Ed. 828; O'Reilly v. Edrlng- ton, 96 U. S. 724, 24 L. Ed. 659 ; Haskins v. St. Louis & S. E. R. Co., 109 U. S. 107, 3 Sup. Ct. 72, 27 L. Ed. 873. See "Appeal and Error," Dec. Dig. (Key-Xo.) 386; Cent. Dig. 2059-2063. 33 Davidson v. Lanier, 4 Wall. 447, 18 L. Ed. 377; Brown v. Mc- Connell, 124 U. S. 489, 8 Sup. Ct. 559, 31 L. Ed. 495; Stewart v. Masterson, 124 U. S. 493, 8 Sup. Ct 561, 31 L. Ed. 507. See "Appeal and Error," Dec. Dig. (Kcy-lfo.) S S86; Cent. Dig. 2059-2063. 3*32 Sup. Ct. xii. 558 PROCEDURE ON ERROR AND APPEAL (Ch. 23 thereof, is in the custody or control of the court, indemnity in all such cases is only required in an amount sufficient to secure the sum recovered for the use and detention of the property, and the costs of the suit, and just damages for de- lay, and costs and interest on the appeal." Any wording, however, which is practically the equiva- lent of this, makes the bond good. 35 The bond should be payable to the defendants in error of record. 36 A supersedeas under these provisions in a common-law case is only allowed as incident to a writ of error, and can- not be allowed until the writ of error is issued. 37 The supersedeas is, in its origin and nature, simply in- tended to stop execution on the judgment rendered in the case appealed from. It cannot prevent the bringing of sim- ilar suits or any other action. 38 SAME APPEAL 195. An appeal is a process borrowed from the civil law,, and differs from the writ of error, in that it brings up all questions both of law and fact. It is the regular process in all cases not falling under the classification of common-law cases, the most im- portant branches being equity and admiralty cas- 35 Gay v. Parpart, 101 TJ. S. 391, 25 L. Ed. 841. See "Appeal and Error," Dec. Dig. (Key-No.) 384; Cent. Dig. 2049-2056* se Davenport v. Fletcher, 16 How. 142, 14 L. Ed. 879. See "Appeal and Error," Dec. Dig. (Key-No.) 376; Cent. Dig. 2011-2016. 37 in re Ralston, 119 U. S. 613, 7 Sup. Ct. 317, 30 L. Ed. 506. See "Appeal and Error," Dec. Dig. (Key-No.) 459; Cent. Dig. 2218- 2221. 38 Hovey v. McDonald, 109 U. S. 150, 3 Sup. Ct. 136, 27 L. Ed. 888; Natal v. Louisiana, 123 U. S. 516, 8 Sup. Ct. 253, 31 L. Ed. 233. See "Appeal and Error," Dec. Dig. (Key-No.) 490; Cent. Dig. 195) REVIEW BY SUPREME COURT 559 es. A habeas corpus proceeding is also reviewable by appeal, though that is a common-law writ ; the statute expressly requiring that it shall be review- able in this manner.** The Supreme Court has described as follows the differ- ence between an appeal and a writ of error : "An appeal to this court in a proper case is matter of right, and its al- lowance is in reality nothing more than the doing of those things which are necessary to give the appellant the means of invoking our jurisdiction. A writ of error is a process of this court, and it is issued, therefore, only upon our au- thority ; but an appeal can be taken without any action by this court. All that need be done to get an appeal is for the appellant to cite his adversary in a proper way to ap- pear before this court, and for him to docket the case here at the proper time. Such a citation as is required may be signed by a judge of the circuit court from which the ap- peal is taken, or by a justice of this court." 40 Section 1012 of the Revised Statutes 41 provides as fol- lows: "Appeals from the circuit courts and district courts acting as circuit courts, and from district courts in prize causes, shall be subject to the same rules, regulations, and restrictions as are or may be prescribed in law in cases of writs of error." Under this provision the method of taking an appeal is substantially the same as that already described. There must be a properly authenticated transcript of the record, an assignment of error, and a prayer for reversal. The allowance of an appeal, however, is not of itself a writ, like the issuing of a writ of error by the clerk. It is usually al- 39 Rev. St. 7G3, 765 (U. S. Comp. St. 1901, pp. 594, 596). 40 Brown v. McConnell, 124 U. S. 489, 490, 491, 8 Sup. Ct 559, 31 L. Ed. 495. See "Appeal and Error," Dec. Dig. (Key-Xo.) $ 405; Cent. Dig. 2120-2122. . Ed. 716; Id., 102 U. S. 248, 26 L. Ed. 135. Here the party de- 570 PROCEDUEE ON ERROR AND APPEAL (Ch. 23 Process of Review These cases can be taken to the Supreme Court by writ of error only, as only questions of law are reviewable. 70 The writ of error can be issued by the clerk of the district court or of the circuit court of appeals, which includes the feated in the lower court applied to the state court of appeals and not to a judge, and fne court refused the writ on the ground that the decision was plainly right, and this order was entered on its records. The Supreme Court held that this was the equivalent of an order of affirmance, for the reason that the record disclosed no error, and that therefore its writ should go to the state court of ap- peals and not to the lower court, and that such order of the state appellate court was a final decree. As the record remained in the state appellate court and the order went upon its minute book, the reasoning in this case seems to the author conclusive. Since these two decisions the Virginia statute has been changed, so that now under sections 3465-3467, Code 1904, a litigant defeated in the lower court can not only apply to the individual judges of the state appellate court, but if they refuse he can apply to the court at its next term ; and until he does this he has not exhausted his chances of review. The action of the court in refusing his applica- tion on the ground that the decision of the lower court was plainly right is taken on a transcript of the record filed with it, and its order refusing the writ goes on its records. It must imply an ex- amination and approval of the decision. It is not the language of a refusal to take jurisdiction ; for a court that has no jurisdiction has no call to express an opinion on the merits. Recently, however, in Western Union Tel. Co. v. Crovo, 220 U. S. 364, 31 Sup. Ct. 399, 55 L. Ed. 498, where the order of the state appellate court was exactly the same as in the Williams v. Bruffy Case, the Supreme Court in a sentence, without referring to it or any other authority, said that, as the state appellate court had de- nied the writ of error, the writ of the Supreme Court should go to the inferior state court. And later, in Norfolk & S. Turnpike Co. v. Virginia, 225 U. S. 264, 32 Sup. Ct 828, 56 L. Ed. 1082, the Supreme Court served notice on the bar that after that term it would follow the rule laid down in the Crovo Case. This opinion also ignores the Williams v. Bruffy Case. The question is not one of judicial discretion, but of statutory construction. Notwithstanding the warning, the author believes that when the Supreme Court comes to consider thoroughly the present Virginia statutes, and the fact that the action of the state appellate court is a matter of record, it will be compelled to return to the principle of the Williams v. Bruffy Case. See "Courts," Dec. Dig. (Key-No.) 893; Cent. Dig. 1047, 1048. TO Judicial Code, 237. 106) BE VIEW BY SUPBEME COUBT 671 territory where the Supreme Court of the state sits, or by the clerk of the Supreme Court. 71 Writs of error in this case may be allowed by the chief justice or presiding judge of the state court, if it is a court of more than one judge, or by any justice of the United States Supreme Court. On this point the Supreme Court has spoken as follows: "Writs of error to the circuit court, under the twenty- second section of the judiciary act, issue as a matter of course, and can be obtained from the clerk of the circuit court, and, when filed in his office by the party, are duly served; but writs of error to the state courts can only is- sue when one of the questions mentioned in the twenty- fifth section of that act was decided by the court to which the writ is directed ; and, in order that there may be some security that such a question was decided in the case, the statute requires that the citation must be signed by the chief justice or judge or chancellor of the court rendering or passing the judgment or decree complained of, or by a justice of the Supreme Court of the United States. It has been the settled doctrine of this court that a writ of error to a state court must be allowed by one of the judges above mentioned, or it will be dismissed for want of jurisdiction. * * * 72 Accordingly, where the writ of error is allowed by one of the associate judges of the state court, it is of no effect. 78 These writs of error differ from those of the circuit court in the important particular that they are not a strict matter of right. Not only in the above quotation, but in other cases, the Supreme Court has said that they must be al- TI Sections 1003, 1004, Rev. St (U. S. Comp. St. 1901, p. 713). 72 BARTEMEYER v. IOWA, 14 Wall. 26, 20 L. Ed. 792. See, also, Missouri Valley Land Co. v. Weise, 208 U. S. 234, 28 Sup. Ct 294, 52 L. Ed. 466. See "Courts," Dec. Dig. (Key-No.) 397; Cent. Dig. 1081-1084- T s Butler v. Gage, 138 U. S. 52, 11 Sup. Ct. 235, 34 L. Ed. 869; Havnor v. New York, 170 U. S. 408, 18 Sup. Ct. 631, 42 L. Ed. 1087. See "Courts," Dec. Dig. (Key-No.) 597; Cent. Dig. 1081-1084. 572 PROCEDURE ON ERROR AND APPEAL (Ch. 23 lowed by one of the judges above named, as some security that a federal question of the character contemplated is in- volved in the case. 7 * The return of these writs of error is regulated by the eighth rule of the Supreme Court, under which the clerk to which the writ of error is directed makes return by transmitting a true copy of the record and all the accom- panying papers under his hand and the seal of the court. He must include in this the opinion of the lower court. Under section 999 of the Revised Statutes, 75 the citation in this case must be signed by the chief justice or judge or chancellor of the state court rendering the judgment or passing the decree complained of, or by a justice of the Supreme Court of the United States, and the opposite par- ty must have at least thirty days' notice. Under section 1000 of the Revised Statutes, 76 the justice or judge signing the citation has power to take the proper bond. In order for this bond to operate as a supersedeas, the writ of error must be served by lodging a copy for the adverse party in the clerk's office where the record remains within sixty days, Sundays exclusive, after the rendering of the judgment complained of, and giving the security requir- ed by law on the issuing of the citation. The record must show that this has been done. 77 The steps necessary to properly take a case from the state court of last resort to the Supreme Court are therefore as follows : 1. Prepare the assignment of errors and the petition for the writ of error. These are papers of the state court, and 74 Gleason v. Florida, 9 Wall. 779, 19 L. Ed. 730; Spies v. Illinois, 123 U. S. 131, 8 Sup. Ct. 22, 31 L. Ed. 80. See "Courts," Dec. Dig. (Key-No.) 397; Cent. Dig. 1081-1084. 75 U. S. Comp. St. 1901, p. 712. 76 U. S. Comp. St. 1901, p. 712. 7 7 Rev. St. 1007 (U. S. Comp. St. 1901, p. 714); O'Dowd v. Rus- sell, 14 Wall. 402, 20 L. Ed. 857 ; Boise County v. Gorman, 19 Wall. 661, 22 L. Ed. 226. See "Courts," Dec. Dig. (Key-No.) 898; Cent. Dig. 1085-1088. 196) REVIEW BY SUPREME COURT 573 should be entitled in the state court. They can be signed by counsel. 2. Get the presiding judge of the state court to allow the writ of error. A Supreme Court justice could also do it, but ordinarily the judge of the state court is more accessi- ble. The allowance can be indorsed at the foot of the pe- tition for the writ of error, somewhat in the following lan- guage : "Writ of error allowed upon the execution of a bond by in the sum of $ Said bond, when approved, to act as a supersedeas. "Dated.. 'Chief Justice of. Care should be taken to see that the signature of the judge shows that he is the chief justice or presiding judge. 3. Execute the bond with proper acknowledgments and justifications, and have the chief justice approve it. The usual way of doing this is simply to write at the bot- tom of it : "Approved , Chief Justice of 4. Get the clerk of the United States district court for the district, or the clerk of the circuit court of appeals, to issue the writ of error, and have the presiding judge of the state court indorse at the bottom : "Allowed , Chief Justice of " 5. Have the citation signed by the chief justice of the state court, and attested by the clerk of that court. 6. Have the citation served, or service acknowledged. 7. Take these various papers, leave the original assign- ment of errors, petition for writ of error, allowance, and bond, in the state court, have copies of these papers made and attach them to the transcript of the record; attach also to the transcript the original writ of error and the original citation, with proof of service; have the clerk of 574 PROCEDURE ON ERROR AND APPEAL (Ch. 23 the state court certify that the original of the bond was lodged in his office, and that the original writ of error was lodged there on a given date, and a copy for each one of the defendants in error (naming them), and then have him certify all the papers as follows: "Return to Writ of Error. "In obedience to the commands of the within writ, I herewith transmit to the Supreme Court of the United States a duly certified transcript of the complete record and proceedings in the within-entitled cause, with all things concerning the same. "Witness my hand and the seal of the Supreme Court of this day of " 8. Send these papers to the clerk of the Supreme Court, with an entry of appearance, and, last but not least, a check for $25. REVIEW BY THE CIRCUIT COURT OF APPEALS 197. Review by the circuit court of appeals of decisions in the cases over which it exercises appellate juris- diction is had by means of writ of error or appeal in accordance with the general principles govern- ing these methods. Only final decisions of the lower courts can be made the subject of this appellate review, except that ap- peals are allowed by law in certain interlocutory decrees or orders granting, continuing, refusing or dissolving injunctions, or appointing receivers, provided certain requirements prescribed by the statute be followed in the prosecution of such re- views. 197) EEVIEW BY CIRCUIT COURT OF APPEALS 675 Method of Maturing Cases in the Circuit Courts of Appeals From the District and Circuit Courts The time of taking these appeals is limited by the elev- enth section of the act of March 3, 1891, 78 to six months after the entry of the order complained of, except where "a lesser time is now by law limited for appeals or writs of error." Instances of such lesser time are appeals from certain in- terlocutory decrees, which are limited to thirty days, and appeals under section 25 of the bankrupt act, which are limited to ten days. Character of Decisions Renewable Here, too, the general rule is that only final decisions are reviewable, and the authorities heretofore quoted are ap- plicable as indicating what are final decisions; but there is one important exception, in case of review of decisions of district and circuit courts by the circuit court of ap- peals. It is provided by section 129 of the Judicial Code, which reads as follows: "Where upon a hearing in equity in a district court, or by a judge thereof in vacation, an injunction shall be granted, continued, refused, or dissolv- ed by an interlocutory order or decree, or an application to dissolve an injunction shall be refused, or an interlocuto- ry order or decree shall be made appointing a receiver, an appeal may be taken from such interlocutory order or de- cree granting, continuing, refusing, dissolving, or refusing to dissolve, an injunction, or appointing a receiver, to the circuit court of appeals, notwithstanding an appeal in such case might, upon final decree under the statutes regulating the same, be taken directly to the Supreme Court: Pro- vided, that the appeal must be taken within thirty days from the entry of such order or decree, and it shall take precedence in the appellate court; and the proceedings in other respects in the court below shall not be stayed un- less otherwise ordered by that court, or the appellate court, TS U. S. Comp. St 1901, p. 552. 576 PROCEDURE ON ERROR AND APPEAL (Ch. 23 or a judge thereof, during the pendency of such appeal: Provided, however, that the court below may, in its discre- tion, require as a condition of the appeal an additional bond." The hardships of injunction or receivership orders con- stitute the reason for making an exception to the general rule of appellate proceedings allowing only final decrees to be reviewed. An order appointing a receiver, though ex parte, is ap- pealable, under this provision. 79 So, too, an order confirm- ing the appointment of a receiver. 80 When a case is taken to the circuit court of appeals un- der this provision, the latter court has the power, in its discretion, to consider the whole case, and enter a final de- cree in it, if it thinks the case one in which it should ex- ercise this power. 81 In such appeals it is discretionary with the lower court whether to suspend the order of in- junction or the appointment of a receiver. The language of the act speaking of suspending proceedings "in other respects" was not intended to imply that the lower court could not suspend in these respects also. 82 Process of Review This may be by writ of error or appeal, according to the nature of the case. The writ of error under the provisions of section 11, already quoted, can be issued by the clerk of the district court or the clerk of the circuit court of ap- peals; and the judge of either the higher or lower court TO Joseph Dry Goods Co. v. Hecht, 120 Fed. 760, 57 C. C. A. 64. See "Courts," Dec. Dig. (Key-No.) 405; Cent. Dig. 1091-1103. so Pacific Northwest Packing Co. v. Allen, 109 Fed. 515, 48 C. C. A. 521. See "Courts," Dec. Dig. (Key-No.) 405; Cent. Dig. 1097- 1103. si Smith v. Vulcan Iron Works, 165 U. S. 518, 17 Sup. Ct. 407, 41 L. Ed. 810; Metropolitan Water Co. v. Kan. Valley Drainage Dist. of Wyandotte County, 223 U. S. 519, 32 Sup. Ct. 246, 56 L. Ed. 533. See "Courts" Dec. Dig. (Key-No.) 405; Cent. Dig. 1097-1103. 82 in re McKenzie, 180 U. S. 536, 550, 21 Sup. Ct. 468, 45 L. Ed. 657. See "Courts," Dec. Dig. (Key-No.) 405. 198) TKIAL IN APPELLATE COURTS 577 cari allow the appeal or writ of error, approve the bond, sign the citation, and do all other acts necessary to perfect the appeal. 83 Revieiv of Decisions of Territorial Courts The cases from these courts which are reviewable by the circuit court of appeals are taken up by writ of error or appeal, according to their nature. 84 TRIAL IN THE APPELLATE COURTS 198. Trials in the appellate courts are governed by rules prescribed by them under authority of law. The first step necessary is docketing the case. In the Supreme Court this is regulated by rule 9, and it must be docketed by the return day. Substantially similar rules prevail in all the circuit courts of appeals. The next step necessary is to have the record printed. An estimate of the cost is furnished by the clerk, and the appellant must de- posit the necessary funds. In the Supreme Court he must also deposit twenty-five dollars on the entry of his ap- pearance, and most, if not all, of the circuit courts of ap- peals have a similar rule. Further Proof The general rule as to appellate proceedings is that the case is heard on the record coming from the lower court, which is printed in advance of the hearing. There are a few cases in which further proof can be taken in the appel- late court. The most important of these are admiralty cas- es. These cases go to the circuit courts of appeals ordi- narily, and in some of the circuits, as in the First and Sec- ond Circuits, the matter of further proof is regulated by ssTornanses v. Melsin*, 106 Fed. 775, 45 C. C. A. 615; In re Mc- Kenzie, 180 U. S. 536, 550, 21 Sup. Ct. 468, 45 L. Ed. 657. See "Courts" Dec. Dig. (Key-No.) 405. 84 Judicial Code, 128, 131, 134, 135. HUGHES FED.PB.(2o ED.) 37 578 PROCEDURE ON ERROR AND APPEAL (Ch. 23 rule. In many there is no express rule on the subject, but the principle is about the same, and it corresponds with the principle which formerly governed the taking of proof in such cases in the Supreme Court. That principle is that it was only allowed where it was impossible to have the proof in the lower court such as cases of after-discovered evi- dence or loss of evidence. Unless this principle were ap- plied, courts would constantly find an entire new case made in the appellate court. 85 Rule 12 of the Supreme Court and section 698 of the Revised Statutes 86 also pro- vide for taking new proof in admiralty in the Supreme Court. The rule and the statute were both in force before trie act conferring final jurisdiction in admiralty cases on the circuit court of appeals; but, if an admiralty case should be taken to the Supreme Court as, for instance, where it involved a constitutional and jurisdictional ques- tion or went up by certiorari, there is no reason why this rule and statute would not still prevail, and permit the tak- ing of new evidence in the Supreme Court when the cir- cumstances justified it. Briefs The Supreme Court and circuit court of appeals, while permitting oral argument, require printed arguments or briefs to be filed in advance of the calling of the case on the docket. The appellant's brief is required by Supreme Court rule 21 87 to contain a specification of the errors relied on, .and various other information, rendering it easy for the judges to find out the issues involved without the necessity of constant reference to the record. Similar rules apply in the circuits. The preparation of the brief is the most re- sponsible part of the work in the appellate courts. In these courts special care should be taken to present the facts, and ss The Mabey, 10 WaU. 419, 19 L. Ed. 963. See "Admiralty," Dec. Dig. (Key -No.) 111; Cent. Dig. 75 4. se U. S. Comp. St. 1901, p. 568. 87 32 Sup. Ct. x. 198) TRIAL IN APPELLATE COURTS 571) only the necessary facts, as clearly as possible, and in the discussion of questions of law the brief should not be padded with a great mass of references. One or two point- ed cases on each point will have more effect than a multi- tude. If the judges of any appellate court were to read every single case referred to in every single brief during any one term, there is hardly a book in their library which they would not have to handle two or three times over. In case of defeat in the appellate court, a rehearing may be asked during the term, but cannot be asked after the term. 88 The granting of a rehearing, however, is the ex- ception. When the appellate court renders its decision, it notifies the inferior court by sending down its mandate. In ap- peals from the district court to the Supreme Court, the pa- per goes back to the court of first jurisdiction; and in ap- peals from the circuit courts of appeals to the Supreme Court, also, the mandate goes direct to the district or cir- cuit court, and not to the circuit court of appeals. 89 In considering the various statutes referred to which were passed before the abolition of the circuit court and still mention it, the provisions of section 291 of the Judicial Code must be borne in mind. It provides: "Wherever, in any law not embraced within this act, any reference is made to, or any power or duty is conferred or imposed upon, the circuit courts, such reference shall, upon the taking effect of this act, be deemed and held to refer to, and to confer such power and impose such duty upon, the district courts." ssBushnell v. Crooke Mining & Smelting Co., 150 U. S. 82, 14 Sup. Ct. 2, 37 L. Ed. 1007. See "Courts," Dec. Dig. (Kcy-lfo.) 405. s 9 Act March 3, 1891, c. 517, 10, 26 Stat 829 (U. S. Coiup. St 1901, p. 552). APPENDIX RULES OF THE UNITED STATES SUPREME COURT 1 CLERK 1. The clerk of this court shall reside and keep the office at the seat of the national government, and he shall not practice, either as attorney or counselor, in this court, or in any other court, while he shall continue to be clerk of this court. 2. The clerk shall not permit any original record or paper to be taken from the court room, or from the office, without an order from the court, except as provided by rule 10. 2 ATTORNEYS AND COUNSELORS 1. It shall be requisite to the admission of attorneys or coun- selors to practice in this court, that they shall have been such for three years past in the highest courts of the states to which they respectively belong, and that their private and professional charac- ters shall appear to be fair. 2. They shall respectively take and subscribe the following oath or affirmation, viz.: I, , do solemnly swear (or affirm) that I will demean myself, as an attorney and counselor of this court, uprightly and according to law; and that I will support the Constitution of the United States. 3 PRACTICE This court considers the former practice of the courts of King's bench and of chancery, in England, as affording outlines for the practice of this court; and will, from time to time, make such al- terations therein as circumstances may render necessary. HUGHES FED.Pn.(2D ED.) (581) 582 APPENDIX 4 BILL OF EXCEPTIONS The judges of the district courts in allowing bills of exception shall give effect to the following rules: 1. No bill of exceptions shall be allowed which shall contain the charge of the court at large to the jury in trials at common law, upon any general exception to the whole of such charge. But the party excepting shall be required to state distinctly the several mat- ters of law in such charge to which he excepts; and those matters of law, and those only, shall be inserted in the bill of exceptions and allowed by the court. 2. Only so much of the evidence shall be embraced in a bill of exceptions as may be necessary to present clearly the questions of law involved in the rulings to which exceptions are reserved, and such evidence as is embraced therein shall be set forth in condensed and narrative form, save as a proper understanding of the questions presented may require that parts of it be set forth otherwise. PROCESS 1. All process of this court shall be in the name of the President of the United States, and shall contain the Christian names, as well as the surnames, of the parties. 2. When process at common law or in equity shall issue against a state, the same shall be served on the governor, or chief executive magistrate, and attorney general of such state. 3. Process of subpoana, issuing out of this court, in any suit in equity, shall be served on the defendant sixty days before the return day of the said process; and if the defendant, on such service of the subpoena, shall not appear at the return day, the complainant shall be at liberty to proceed ex parte. 6 MOTIONS 1. All motions to the court shall be reduced to writing, and shall contain a brief statement of the facts and objects of the motion. 2. Forty-five minutes on each side shall be allowed to the argu- ment of a motion, and no more, without special leave of the court, granted before the argument begins. 3. No motion to dismiss, except on special assignment by the court, shall be heard, unless previous notice has been given to the adverse party, or the counsel or attorney of such party. 4. All motions to dismiss writs of error and appeals, except mo- tions to docket and dismiss under rule 9, must be submitted in the EULES OF THE UNITED STATES SUPREME COURT 583 first instance on printed briefs or arguments. If the court desires further argument on that subject, it will be ordered in connection with the hearing on the merits. The party moving to dismiss shall serve notice of the motion, with a copy of his brief of argument, on the coupsel for plaintiff in error or appellant of record in this court, at least three weeks before the time fixed for submitting the motion, in all cases except where the counsel to be notified resides west of the Rocky Mountains, in which case the notice shall be at least thirty days. Affidavits of the deposit in the mail of the notice and brief to the proper address of the counsel to be served, duly post- paid, at such time as to reach him by due course of mail, the three weeks or thirty days before the time fixed by the notice, will be regarded as prima facie evidence of service on counsel who reside without the District of Columbia. On proof of such service, the motion will be considered, unless, for satisfactory reasons, further time be given by the court to either party. 5. The court in any pending cause will receive a motion to affirm on the ground that it is manifest that the writ or appeal was taken for delay only, or that the questions on which the decision of the cause depend are so frivolous as not to need further argument The same procedure shall apply to and control such motions as is pro- vided for in cases of motions to dismiss under paragraph 4 of this rule. 6. Although the court upon consideration of a motion to dismiss or a motion to affirm may refuse to grant the motion, it may never- theless, if the conclusion is arrived at that the case is of such a character as not to justify extended argument, order the cause transferred for hearing to a summary docket The hearing of the causes on such docket will be expedited, the court providing from time to time for such speedy disposition of the docket as the regular order of business may permit, and on the hearing of such causes one-half hour will be allowed each side for oral argument 7. The court will not hear arguments on Saturday (unless for special cause it shall order to the contrary), but will devote that day to the other business of the court The motion day shall be Monday of each week; and motions not required by the rules of the court to be put on the docket shall be entitled to preference im- mediately after the reading of opinions, if such motions shall be made before the court shall have entered upon the hearing of a case upon the docket LAW LIBRARY 1. During the session of the court, any gentleman of the bar hav- ing a case on the docket, and wishing to use any book or books in the law library, shall be at liberty, upon application to the clerk of the court, to receive an order to take the same (not exceeding at any 584 APPENDIX one time three) from the library, he being thereby responsible for the due return of the same within a reasonable time, or when re- quired by the clerk. And in case the same shall not be so returned, the party receiving the same shall be responsible for and forfeit and pay twice the value thereof, and also $1 per day for each day's detention beyond the limited time. 2. The clerk shall deposit in the law library, to be there carefully preserved, one copy of the printed record in every case submitted to the court for its consideration, and of all printed motions, briefs, or arguments filed therein. 3. The marshal shall take charge of the books of the court, to- gether with such of the duplicate law books as Congress may direct to be transferred to the court, and arrange them in the conference room, which he shall have fitted up in a proper manner ; and he shall not permit such books to be taken therefrom by anyone except the justices of the court 8 WRIT OF ERROR AND APPEAL, RETURN, AND RECORD 1. The clerk of the court to which any writ of error may be di- rected shall make return of the same, by transmitting a true copy of the record, and of the assignment of errors, and of all proceed- ings in the case, under his hand and the seal of the court In order to enable the clerk to perform such duty, and for the purpose of reducing the size of transcripts of record in cases brought to this court by appeal or writ of error, by eliminating all papers not necessary to the consideration of the questions to be reviewed, it shall be the duty of the appellant or plaintiff in error or his at- torney to file with the clerk of the lower court, together with proof or acknowledgment of service of a copy on the appellee or defendant in error, or his counsel, a praecipe which shall indicate the portions of the record to be incorporated into the transcript of the record on such appeal or writ of error. Should the appellee or defendant in error, or his counsel, desire additional portions of the record incor- porated into the transcript of the record to be filed in this court, he shall file with the clerk of the lower court his praecipe also, within ten days thereafter (unless the time shall be enlarged by a judge of the lower court or by a justice of this court), indicating such ad- ditional portions of the record desired by him. The clerk of the lower court shall transmit to this court as the transcript of the record in the case only the portions of the record below designated by both parties as above provided. The parties or their counsel, however, may agree by written stip- ulation to be filed with the clerk of the lower court the portions of the record which shall constitute the transcript of record on appeal or writ of error, and the clerk in such case shall transmit only the papers designated in such stipulation. BULKS OF THE UNITED STATES SUPREME COURT 583 If this court shall find that portions of the record unnecessary to a proper presentation of the case have been incorporated into the transcript by either party, the court may order that the whole or any part of the clerk's fee for supervising the printing and of the cost of printing the record be paid by the offending party. 2. In all cases brought to this court by writ of error or appeal, to review any 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. 3. No case will be heard until a complete record, containing in itself, and not by reference, all the papers, exhibits, depositions, and other proceedings which are necessary to the hearing in this court, shall be filed. 4. Whenever it shall be necessary or proper, in the opinion of the presiding judge in any district court, that original papers of any kind should be inspected in this court upon writ of error or ap- peal, 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. 5. All appeals, writs of error, and citations must be made return- able not exceeding thirty days from the day of signing the citation, whether the return day fall in vacation or in term time, and be served before the return day, except in writs of error and appeals from California, Oregon, Nevada, Washington, New Mexico, Utah, Arizona, Montana, Wyoming, North Dakota, South Dakota, Alaska, Idaho, Hawaii, and Porto Rico, when the time shall be extended to sixty days, and from the Philippine Islands to one hundred and twenty days. 6. The record in cases of admiralty and maritime jurisdiction, when, under the requirements of law, the facts have been found in the court below, and the power of review is limited to the determi- nation of questions of law arising on the record, shall be confined to the pleadings, the findings of fact, and conclusions of law there- on, the bills of exceptions, the final judgment or decree, and such interlocutory orders and decrees as may be necessary to a proper review of the case. 9 DOCKETING CASES 1. It shall be the duty of the plaintiff in error or appellant to docket the case and file the record thereof with the clerk of this court by or before the return day, whether in vacation or in term time. But, for good cause shown, the justice or judge who signed the citation, or any justice of this court, may enlarge the time, by or before its expiration, the order of enlargement to be filed with the clerk of this court. If the plaintiff in error or appellant shall fail to comply with this rule, the defendant in error or appellee may 586 APPENDIX have the cause docketed and dismissed upon producing a certificate, whether in term time or vacation, from the clerk of the court where- in the judgment or decree was rendered, stating the case and certi- fying that such writ of error or appeal has been duly sued out or allowed. And in no case shall the plaintiff in error or appellant be entitled to docket the case and file the record after the same shall have been docketed and dismissed under this rule, unless by order of the court 2. But the defendant in error or appellee may, at his option, docket the case and file a copy of the record with the clerk of this court ; and if the case is docketed and a copy of the record filed with the clerk of this court by the plaintiff in error or appellant within the period of time above limited and prescribed by this rule, or by the defendant in error or appellee at any time thereafter, the case shall stand for argument. 3. Upon the filing of the transcript of a record brought up by writ of error or appeal, the appearance of the counsel for the party docketing the case shall be entered. 1O PRINTING RECORDS 1. In all cases the plaintiff in error or appellant, on docketing a case and filing the record, shall make such cash deposit with the clerk for the payment of his fees as he may require, or otherwise satisfy him in that behalf. 2. The clerk shall cause an estimate to be made of the cost of printing the record, and of his fee for preparing it for the printer and supervising the printing, and shall notify to the party docketing the case the amount of the estimate. If he shall not pay it within a reasonable time, and for want of such payment the record shall not have been printed when a case is reached in the regular call of the docket, the case shall be dismissed. 3. Upon payment of the amount estimated by the clerk, thirty copies of the record shall be printed, under his supervision, for the use of the court and of counsel. 4. In cases of appellate jurisdiction the original transcript on file shall be taken by the clerk to the printer. But the clerk shall cause copies to be made for the printer of such original papers, sent up under rule 8, 4, as are necessary to be printed ; and of the whole record in cases of original jurisdiction. 5. The clerk shall supervise the printing, and see that the print- ed copy is properly indexed. He shall distribute the printed copies to the justices and the reporter, from time to time, as required, and a copy to the counsel for the respective parties. 6. If the actual cost of printing the record, together with the fee of the clerk, shall be less than the amount estimated and paid, the RULES OF THE UNITED STATES SUPREME COURT 587 amount of the difference shall be refunded by the clerk to the party paying it. If the actual cost and clerk's fee shall exceed the esti- mate, the amount of the excess shall be paid to the clerk before the delivery of a printed copy to either party or his counsel. 7. In case of reversal, affirmance, or dismissal, with costs, the amount of the cost of printing the record and of the clerk's fee 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. 8. Upon the clerk's producing satisfactory evidence, by affidavit or the acknowledgment of the parties or their sureties, of having served a copy of the bill of fees due by them, respectively, in this court, on such parties or their sureties, an attachment shall issue against such parties or sureties, respectively, to compel payment of said fees. 9. The plaintiff in error or appellant may, within ninety days after filing the record in this court, file with the clerk a statement of the errors on which he intends to rely, and of the parts of the record which he thinks necessary for the consideration thereof, with proof of service of the same on the adverse party. The adverse par- ty, within ninety days thereafter, may designate in writing, filed with the clerk, additional parts of the record which he thinks ma- terial ; and, if he shall not do so, he shall be held to have consented to a hearing on the parts designated by the plaintiff in error or appellant. If parts of the record shall be so designated by one or both of the parties, the clerk shall print those parts only ; and the court will consider nothing but those parts of the record, and the errors so stated. If at the hearing it shall appear that any material part of the record has not been printed, the writ of error or appeal may be dismissed, or such other order made as the circumstances may appear to the court to require. If the defendant in error or appellee shall have caused unnecessary parts of the record to be printed, such order as to costs may be made as the court shall think proper. The fees of the clerk under rule 24, 7, shall be computed, as at present, on the folios in the record as filed, and shall be in full for the performance of his duties in the execution hereof. 11 TRANSLATIONS Whenever any record transmitted to this court upon a writ of error or appeal shall contain any document, paper, testimony, or other proceedings in a foreign language, and the record does not also contain a translation of such document, paper, testimony, or other proceedings, 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 order that a translation be supplied and inserted in the record. 588 APPENDIX 12 FURTHER PROOF 1. In all cases where further proof is ordered by the court, the depositions which may be taken shall be by a commission, to be is- sued from this court, or from any district court of the United States. 2. In all cases of admiralty and maritime jurisdiction, where new evidence shall be admissible in this court, the evidence by testimony of witnesses shall be taken under a commission to be issued from this court, or from any district court of the United States, under the direction of any judge thereof; and no such commission shall issue but upon interrogatories, to be filed by the party applying for the commission, and notice to the opposite party or his agent or attor- ney, accompanied with a copy of the interrogatories so filed, to file cross-interrogatories within twenty days from the service of such notice: Provided, however, that nothing in this rule shall prevent any party from giving oral testimony in open court in cases where by law it is admissible. 13 OBJECTIONS TO EVIDENCE IN THE RECORD In all cases of equity or admiralty jurisdiction, heard in this court, no objection shall hereafter be allowed to be taken to the ad- inissibility of any deposition, deed, grant, or other exhibit found in the record as evidence, unless objection was taken thereto in the court below and entered of record ; but the same shall otherwise be deemed to have been admitted by consent 14 CERTIORARI No certiorari for diminution of the record will be hereafter award- ed 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 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, accounting satisfactorily for the delay. 15 DEATH OF A PARTY 1. Whenever, pending a writ of error or appeal In this court, either party shall die, the proper representatives in the personalty or realty of the deceased party, according to the nature of the case, may voluntarily come in and be admitted parties to the suit, and thereupon the case shall be heard and determined as in other cases ;. RULES OF THE UNITED STATES SUPREME COURT 589 and If such representatives shall not voluntarily become parties, then the other party may suggest the death on the record, and there- upon, on motion, obtain an order that unless such representatives shall become parties within the first ten days of the ensuing term, the party moving for such order, if defendant in error or appellee, shall be entitled to have the writ of error or appeal dismissed ; and if the party so moving shall be plaintiff in error or appellant, he shall be entitled to open the record, and on hearing have the judg- ment or decree reversed, if it be erroneous: Provided, however, that a copy of every such order shall be printed in some newspaper of general circulation within the state, territory, or district from which the case is brought, for three successive weeks, at least sixty days before the beginning of the term of the Supreme Court then next ensuing. 2. When the death of a party is suggested, and the representa- tives of -the deceased do not appear by the tenth day of the second term next succeeding the suggestion, and no measures are taken by the opposite party within that time to compel their appearance, the case shall abate. 3. When either party to a suit in a court of the United States shall desire to prosecute a writ of error or appeal to the Supreme Court of the United States, from any final judgment or decree, ren- dered in such 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 prop- er 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, 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 commencement of the term to which such writ of error or appeal is returnable, the plaintiff in error or appellant shall make a suggestion to the court, supported by affidavit, that the said party was dead when the writ of error or appeal was taken or sued out, and had no proper representative within the jurisdic- tion of the court which rendered said judgment or decree, so that the suit could not be revived in that court, and that said party had a proper representative in some state or territory of the United States, and stating therein the name and character of such repre- sentative, and the state or territory in which such representative resides; and, upon such suggestion, he may, on motion, obtain an or- der that, unless such representative shall make himself a party within the first ten days of the ensuing term of the court, the plain- tiff in error or appellant shall be entitled to open the record, and, on hearing, have the judgment or decree reversed, if the same be erroneous: Provided, however, that a proper citation reciting the 590 APPENDIX substance of such order shall be served upon such representative, either personally or by being left at his residence, at least sixty days before the beginning of the term of the Supreme Court then next ensuing: And provided, also, that in every such case if the representative of the deceased party does not appear by the tenth day of the term next succeeding said suggestion, and the measures above provided to compel the appearance of such representative have not been taken within time as above required, by the opposite party, the case shall abate: And provided, also, that the said repre- sentative may at any time before or after said suggestion come in and be made a party to the suit, and thereupon the case shall pro- ceed, and be heard and determined as in other cases. 16 NO APPEARANCE OF PLAINTIFF IN ERROR OR APPELLANT Where no counsel appears and no brief has been filed for the plaintiff in error or appellant, when the case is called for trial, the defendant in error or appellee may have the plaintiff in error or appellant called and the writ of error or appeal dismissed, or may open the record and pray for an affirmance. 17 NO APPEARANCE OF DEFENDANT IN ERROR OR APPELLEE Where the defendant in error or appellee fails to appear when the case is called for trial, the court may proceed to hear an argu- ment on the part of the plaintiff in error or appellant, and to give judgment according to the right of the case. 18 NO APPEARANCE OF EITHER PARTY When a case is reached in the regular call of the docket, and there is no appearance for either party, the case shall be dismissed at the cost of the plaintiff in error or appellant. 19 NEITHER PARTY READY AT SECOND TERM When a case is called for argument at two successive terms, and upon the call at the second term neither party is prepared to argue it, it shall be dismissed at the cost of the plaintiff in error or appel- lant, unless sufficient cause is shown for further postponement. RULES OF THE UNITED STATES SUPREME COURT 591 2O PRINTED ARGUMENTS 1. In all cases brought here on writ of error, appeal, or otherwise, the court will receive printed arguments without regard to the num- ber of the case on the docket, if the counsel on both sides shall choose to submit the same within the first ninety days of the term; and, in addition, appeals from the court of claims may be submitted by both parties within thirty days after they are docketed, but not after the first day of April; but thirty copies of the arguments, signed by attorneys or counselors of this court, must be first filed. 2. When a case is reached in the regular call of the docket, and a printed argument shall be filed for one or both parties, the case shall stand on the same footing as if there were an appearance by counsel. 3. When a case is taken up for trial upon the regular call of the docket, and argued orally in behalf of only one of the parties, no printed argument for the opposite party will be received, unless it is filed before the oral argument begins, and the court will proceed to consider and decide the case upon the ex parte argument. 4. No brief or argument will be received, either through the clerk or otherwise, after a case has been argued or submitted, ex- cept upon leave granted in open court after notice to opposing coun- sel. 21 BRIEFS 1. The counsel for plaintiff in error or appellant shall file with the clerk of the court, at least three weeks before the case is called for argument, thirty copies of a printed brief, one of which shall, on application, be furnished to each of the counsel engaged upon the opposite side. 2. This brief shall contain, in the order here stated (1) A concise abstract, or statement of the case, presenting suc- cinctly the questions involved and the manner in which they are raised. (2) A specification of the errors relied upon, which, in cases brought up by writ of error, shall set out separately and particu- larly each error asserted and intended to be urged; and in cases brought up by appeal the specification shall state, as particularly as may be, in what the decree is alleged to be erroneous. When the error alleged is to the admission or to the rejection of evidence, the specification shall quote the full substance of the evidence admitted or rejected. When the error alleged is to the charge of the court, the specification shall set out the part referred to totidem verbis, whether it be instructions given or instructions refused. When the 592 APPENDIX error alleged is to a ruling upon the report of a master, the specifi- cation shall state the exception to the report and the action of the court upon it. (3) A brief of the argument, exhibiting a clear statement of the points of law or fact to be discussed, with a reference to the pages of the record and the authorities relied upon in support of each point. When a statute of a state is cited, so much thereof as may be deemed necessary to the decision of the case shall be printed at length. 3. The counsel for a defendant in error or an appellee shall file with the clerk thirty printed copies of his argument, at least one week before the case is called for hearing. His brief shall be of like character with that required of the plaintiff in error or appellant, except that no specification of errors shall be required, and no state- ment of the case, unless that presented by the plaintiff in error or appellant is controverted. 4. When there is no assignment of errors, as required by 997 of the Revised Statutes, counsel will not be heard, except at the re- quest of the court ; and errors not specified according to this rule will be disregarded ; but the court, at its option, may notice a plain error not assigned or specified. 5. When, according to this rule, a plaintiff in error or an appel- lant 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 request of the court. 6. When no oral argument is made for one of the parties, only one counsel will be heard for the adverse party. 7. No brief or printed argument, required by the foregoing sec- tions, shall be filed by the clerk unless the same shall be accompa- nied by satisfactory proof of service upon counsel for the adverse party. 8. Every brief of more than 20 pages shall contain on its front fly leaves a subject index with page references, the subject index to be supplemented by a list of all cases referred to, alphabetically ar- ranged, together with references to pages where cases are cited. 22 ORAL ARGUMENTS 1. The plaintiff in error or appellant in this court shall be enti- tled 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 argu- ment of a case. RULES OF THE UNITED STATES SUPREME COURT 593 3. One and one-half hours on each side will be allowed for the argument, and no more, without special leave of the court, granted before the argument begins. But in cases certified from the circuit courts of appeals, cases involving solely the jurisdiction of the court below, and cases under the act of March 2, 1907, 34 Stat. 1246, forty- five minutes only on each side will be allowed for the argument un- less the time be extended. The time thus allowed may be appor- tioned 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. 23 INTEREST 1. In cases where a writ of error is prosecuted to 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 I ~-\r interest in the courts of the state where such judgment is rendered. 2. In all cases where a writ of error shall delay the proceedings on the judgment of the inferior court, and shall appear to have been sued out merely for delay, damages at a rate not exceeding 10 per cent, in addition to interest, shall be awarded upon the amount of the judgment. 3. The same rule shall be applied to decrees for the payment of money in cases in equity, unless otherwise ordered by this court. 4. In cases in admiralty, damages and interest may be allowed if specially directed by the court. 24 COSTS 1. In all cases where any suit shall be dismissed in this court, costs shall be allowed to the defendant in error or appellee, unless otherwise agreed by the parties, except where the dismissal shall be for want of jurisdiction, when the costs incident to the motion to dis- miss shall be allowed. 2. In all cases of affirmance of any judgment or decree in this court, costs shall be allowed to the defendant in error or appellee, unless otherwise ordered by the court. 3. In cases of reversal of any judgment or decree in this court, costs shall be allowed to the plaintiff in error or appellant, unless otherwise ordered by the court. The cost of the transcript of the record from the court below shall be a part of such costs, and be taxable in that court as costs in the case. HUGHES FED.PB.(2o ED.) 38 594 APPENDIX 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 or against the United States. 5. In all cases of the dismissal of any suit in this court, it shall be the duty of the clerk to issue a mandate, or other proper process, in the nature of a procedendo, to the court below, for the purpose of informing such court of the proceedings in this court, so that fur- ther proceedings may be had in such court as to law and justice may appertain. 6. When costs are allowed in this court, it shall be the duty of the clerk to insert the amount thereof in the body of the mandate, or other proper process, sent to the court below, and annex to the same the bill of items taxed in detail. 7. In pursuance of the act of March 3, 1883, authorizing and em- powering this court to prepare a table of fees to be charged by the clerk of this court, the following table is adopted: For docketing a case and filing and indorsing the transcript of the record, $5. For entering an appearance, 25 cents. For entering a continuance, 25 cents. For filing a motion, order, or other paper, 25 cents. For entering any rule, or for making or copying any record or other paper, 20 cents per folio of each one hundred words. For transferring each case to a subsequent docket and indexing the same, $1. For entering a judgment or decree, $1. For every search of the records of the court, $1. For a certificate and seal, $2. For receiving, keeping, and paying money in pursuance of any statute or order of court, 2 per cent on the amount so received, kept, and paid. For an admission to the bar and certificate under seal, $10. For preparing the record or a transcript thereof for the printer, indexing the same, supervising the printing, and distributing the printed copies to the justices, the reporter, the law library, and the parties or their counsel, 15 cents per folio ; but when the necessary printed copies of the record, as printed for the use of the lower court, shall be furnished, the fee for supervising shall be 5 cents per folio. For making a manuscript copy of the record, when required un- der rule 10, 20 cents per folio, but nothing in addition for supervis- ing the printing. For issuing a writ of error and accompanying papers, $5. For a mandate or other process, $5. For filing briefs, $5 for each party appearing. For every printed copy of any opinion of the court or any justice thereof, certified under seal, $2. BULKS OF THE UNITED STATES SUPREME COUET 595 25 OPINIONS OF THE COURT 1. All opinions delivered by the court shall, immediately upon the delivery thereof, be handed to the clerk to be printed. And it shall be the duty of the clerk to cause the same to be forthwith printed, and to deliver a copy to the reporter as soon as the same shall be printed. 2. The original opinions of the court shall be filed with the clerk of this court for preservation. 3. Opinions printed under the supervision of the justices deliver- ing the same need not be copied by the clerk into a book of records ; but at the end of each term the clerk shall cause such printed opinions to be bound in a substantial manner into one or more vol- umes, and when so bound they shall, be deemed to have been re- corded. 26 CALL AND ORDER OF THE DOCKET 1. The court, on the second day in each term, will commence call- ing the cases for argument in the order in which they stand on the docket, and proceed from day to day during the term in the same order (except as hereinafter provided) ; and if the parties, or either of them, shall be ready when the case is called, the same will be heard; and if neither party shall be ready to proceed in the argu- ment, the case shall be continued to the next term of the court un- less some good and satisfactory reason to the contrary shall be shown to the court. 2. Ten cases only shall be considered as liable to be called on each day during the term. But on the coming in of the court on each day the entire number of such ten cases will be called, with a view to the disposition of such of them as are not to be argued. 3. Criminal cases may be advanced by leave of the court on mo- tion of either party. 4. Cases once adjudicated by this court upon the merits, and again brought up by writ of error or appeal, may be advanced by leave of the court on motion of either party. 5. Revenue and other cases in which the United States are con- cerned, which also involve or affect some matter of general public interest, or which may be entitled to precedence under the provisions of any act of Congress, may also by leave of the court be advanced on motion of the Attorney General. 6. All motions to advance cases must be printed, and must con- tain a brief statement of the matter involved, with the reasons for the application. 596 APPENDIX 7. No other case will be taken up out of the order on the docket, or be set down for any particular day, except under special and pe- culiar circumstances to be shown to the court. 8. Two or more cases, involving the same question, may, by the leave of the court, be heard together, but they must be argued as one case. 9. If, after a case has been passed, the parties shall desire to have it heard, they may file with the clerk their joint request to that effect, and the case shall then be by him reinstated for call ten cases after that under argument, or next to be called at the end of the day the request is filed. If the parties will not unite in such a request, either may move to take up the case, and it shall then be assigned to such place upon the docket as the court may direct. 10. No stipulation to pass a case will be recognized as binding up- on the court. A case can only be so passed upon application made and leave granted in open court. 27 ADJOURNMENT The court will, at every term, announce on what day it will ad- journ at least ten days before the time which shall be fixed upon, and the court will take up no case for argument, nor receive any case upon printed briefs, within three days next before the day fixed upon for adjournment. 28 DISMISSING CASES IN VACATION Whenever the plaintiff and defendant in a writ of error pending in this court, or the appellant and appellee in an appeal, shall in vacation, by their attorneys of record, sign and file with the clerk an agreement in writing directing the case to be dismissed, and speci- fying the terms on which it is to be dismissed as to costs, and shall pay to the clerk any fees that may be due to him, it shall be the duty of the clerk to enter the case dismissed, and to give to either party requesting it a copy of the agreement filed ; but no mandate or other process shall issue without an order of the court. 29 SUPERSEDEAS (See ante, p. 557.) 3O REHEARING A petition for rehearing after judgment can be presented only at the term at which judgment is entered, unless by special leave grant- ed during the term; and must be printed and briefly and distinctly RULES OF THE UNITED STATES SUPREME COURT 597 state its grounds, and be supported by certificate of counsel; and will not be granted, or permitted to be argued, unless a justice who con- curred in the judgment desires it, and a majority of the court so determines. 31 FORM OF PRINTED RECORDS AND BRIEFS All records, arguments, and briefs, printed for the use of the court, must be in such form and size that they can be convenient- ly bound together, so as to make an ordinary octavo volume; and, as well as all quotations contained therein, and the covers there- df, must be printed in clear type (never smaller than small pica) and on unglazed paper. 32 WRITS OF ERROR AND APPEALS IN CASES INVOLVING JU- RISDICTION OF LOWER COURT Cases brought to this court by writ of error or appeal, where the only question in issue is the question of the jurisdiction of the court below, will be advanced on motion, and heard under the rules pre- scribed by rule 6, in regard to motions to dismiss writs of error and appeals. 33 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 marshal of this court at least one month before the case is heard or submitted. 2. All models, diagrams, and exhibits of material, placed in the custody of the marshal for the inspection of the court on the hear- ing 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 marshal to notify the counsel in the case, by mail or oth- erwise, of the requirements of this rule; and if the articles are not removed within a reasonable time after the notice is given, he shall destroy them or make such other disposition of them as to him may seem best 34 CUSTODY OF PRISONERS ON HABEAS CORPUS 1. Pending an appeal from the final decision of any court or judge declining to grant the writ of habeas corpus, the custody of the pris- oner shall not be disturbed. 598 APPENDIX 2. Pending an appeal from the final decision of any court or judge discharging the writ after it has been issued, 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 pro- vided. 3. Pending an appeal from the final decision of any court or judge discharging the prisoner, he shall be enlarged upon recogni- zance, with surety, for appearance to answer the judgment of the appellate court, except where, for special reasons, sureties ought not to be required. 35 ASSIGNMENT OF ERRORS 1. See ante, p. 552. 2. The plaintiff in error or appellant shall cause the record to be printed, according to the provisions of 2, 3, 4, 5, 6, and 9, of rule 10. 36 APPEALS AND WRITS OF ERROR FROM DISTRICT COURTS 1. See ante, p. 551. 2. Where such writ of error is allowed in the case of a conviction of an infamous crime, or in any other criminal case in which it will lie under section 238, the district court, or any judge thereof, or any justice of this court, or any circuit judge assigned to the dis- trict court, shall have power, after the citation is served, to admit the accused to bail in such amount as may be fixed, 37 CASES FROM CIRCUIT COURTS OF APPEALS 1. See ante, p. 516. 2. If application is thereupon made to this court that the whole record and cause may be sent up to it for its consideration, the party making such application shall, as a part thereof, furnish this court with a certified copy of the whole of said record. "3. Where an application is submitted to this court for a writ of certiorari to review a decision of a Circuit Court of Appeals or any other court, it shall be necessary for the petitioner to furnish as an exhibit to the petition a certified copy of the entire transcript of record of the case, including the proceedings in the court to which the writ of certiorari is asked to be directed. The petition shall contain only a summary and short statement of the matter involved and the general reasons relied on for the allowance of the writ A failure to comply with this provision will be deemed a sufficient rea- son for denying the petition. Thirty printed copies of such petition EULE8 OF THE UNITED STATES SUPREME COURT 599 and of any brief deemed necessary shall be filed. Notice of the date of submission of the petition, together with a copy of the petition and brief, if any, in support of the same shall be served on the counsel for the respondent at least two weeks before such date in all cases except where the counsel to be notified resides west of the Rocky Mountains, in which cases the time shall be at least three weeks. The brief for the respondent, if any, shall be filed at least three days before the date fixed for the submission of the petition. Oral argument will not be permitted on such petitions, and no peti- tion will be received within three days next before the day fixed upon for the adjournment of the court for the term." 38 INTEREST, COSTS, AND FEES The provisions of rules 23 and 24 of this court, in regard to Interest and costs and fees, shall apply to writs of error and appeals and re- views under the provisions of 238, 239, 240, and 241 of the act en- titled, "An Act to Codify, Revise, and Amend the Laws Relating to the Judiciary," approved March 3, 1911, chapter 231. 39 MANDATES Mandates shall issue as of course after the expiration of thirty days from the day the judgment or decree is entered, unless the time is enlarged by order of the court, or of a justice thereof when the court is not in session, but during the term. PRACTICE IN CASES FROM CIRCUIT COURTS OF APPEALS The provisions of these rules relating to the practice on direct writs of error to and appeals from the district courts shall also be deemed to relate to and cover the practice on writs of error to and appeals from the circuit courts of appeals. RULES OF PRACTICE "~ FOR THE COURTS OF EQUITY OF THE UNITED STATES PROMULGATED BY THE SUPREME COURT OF THE UNITED STATES NOVEMBER 4, 1912 RULE 1 DISTRICT COURT ALWAYS OPEN FOR CERTAIN PURPOSES- ORDERS AT CHAMBERS The District Courts, as courts of equity, shall be deemed always open for the purpose of filing any pleading, of issuing and return- ing mesne and final process, and of making and directing all inter- locutory motions, orders, rules and other proceedings preparatory to the hearing upon their merits, of all causes pending therein. Any District Judge may, upon reasonable notice to the parties, make, direct, and award, at chambers or in the clerk's office, and in vacation as well as in term, all such process, commissions, orders, rules and other proceedings, whenever the same are not grantable of course, according to the rules and practice of the court 2 CLERK'S OFFICE ALWAYS OPEN, EXCEPT, ETC. The clerk's office shall be open during business hours on all days, except Sundays and legal holidays, and the clerk shall be in attend- ance for the purpose of receiving and disposing of all motions, rules, orders and other proceedings which are grantable of course. BOOKS KEPT BY CLERK AND ENTRIES THEREIN The clerk shall keep a book known as "Equity Docket," in which he shall enter each suit, with a file number corresponding to the folio in the book. All papers and orders filed with the clerk in the suit, all process issued and returns made thereon, and all appear- ances shall be noted briefly and chronologically in this book on the folio assigned to the suit and shall be marked with its file number. HUGHES FED.PR.(2o ED.) (601) 602 APPENDIX The clerk shall also keep a hook entitled "Order Book," in which shall be entered at length, in the order of their making, all orders made or passed by him as of course and also all orders made or passed by the judge in chambers. He shall also keep an "Equity Journal," in which shall be entered all orders, decrees and proceedings of the court in equity causes in term time. Separate and suitable indices of the Equity Docket, Order Book and Equity Journal shall be kept by the clerk under the direction of the court. NOTICE OF ORDERS Neither the noting of an order in the Equity Docket nor its en- try in the Order Book shall of itself be deemed notice to the par- ties or their solicitors ; and when an order is made without prior notice to, and in the absence of, a party, the clerk, unless otherwise directed by the court or judge, shall forthwith send a copy thereof, by mail, to such party or his solicitor and a note of such mailing shall be made in the Equity Docket, which shall be taken as sufficient proof of due notice of the order. 5 MOTIONS GRANTABLE OF COURSE BY CLERK All motions and applications in the clerk's office for the issuing of mesne process or final process to enforce and execute decrees; for taking bills pro confesso ; and for other proceedings in the clerk's office which do not require any allowance or order of the court or of a judge, shall be deemed motions and applications grantable of course by the clerk ; but the same may be suspended, or altered, or rescinded by the judge upon special cause shown. MOTION DAY Each District Court shall establish regular times and places, not less than once each month, when motions requiring notice and hear- ing may be made and disposed of; but the judge may at any time and place, and on such notice, if any, as he may consider reason- able, make and direct all interlocutory orders, rulings and pro- ceedings for the advancement, conduct and hearing of causes. If the public interest permits, the senior Circuit Judge of the circuit may dispense with the motion day during not to exceed two months in the year in any district. BULES OF PRACTICE FOB COUBT8 OF EQUITY OF U. 8. 603 PROCESS, MESNE AND FINAL The process of subpoena shall constitute the proper mesne process in all suits in equity, in the first instance, to require the defendant to appear and answer the bill; and, unless otherwise provided in these rules or specially ordered by the court, a writ of attachment and, if the defendant cannot be found, a writ of sequestration, or a writ of assistance to enforce a delivery of possession, as the case may require, shall be the proper process to issue for the purpose of compelling obedience to any interlocutory or final order or decree of the court. 8 ENFORCEMENT OF FINAL DECREES Final process to execute any decree may, if the decree be solely for the payment of money, be by a writ of execution, in the form used in the District Court in suits at common law in actions of assumpsit. If the decree be for the performance of any specific act, as, for example, for the execution of a conveyance of land or the delivering up of deeds or other documents, the decree shall in all cases, prescribe the time within which the act shall be done, of which the defendant shall be bound, without further service, to take notice; and upon affidavit of the plaintiff, filed in the clerk's of- fice, that the same has not been complied with within the prescribed time, the clerk shall issue a writ of attachment against the delin- quent party, from which, if attached thereon, he shall not be dis- charged, unless upon a full compliance with the decree and the payment of all costs, or upon a special order of the court, or a judge thereof, upon motion and affidavit, enlarging the time for the performance thereof. If the delinquent party cannot be found a writ of sequestration shall issue against his estate, upon the return of non est inventus, to compel obedience to the decree. If a man- datory order, injunction or decree for the specific performance of any act or contract be not complied with, the court or a judge, be- sides, or instead of, proceedings against the disobedient party for a contempt or by sequestration, may by order direct that the act required to be done be done, so far as practicable, by some other person appointed by the court or judge, at the cost of the disobedi- ent party, and the act, when so done, shall have like effect as if done by him. 9 WRIT OF ASSISTANCE When any decree or order is for the delivery of possession, upon proof made by affidavit of a demand and refusal to obey the de- 604 APPENDIX cree or order, the party prosecuting the same shall be entitled to a writ of assistance from the clerk of the court. 1O DECREE FOR 'DEFICIENCY IN FORECLOSURES, ETC. In suits for the foreclosure of mortgages, or the enforcement of other liens, a decree may be rendered for any balance that may be found due to the plaintiff over and above the proceeds of the sale or sales, and execution may issue for the collection of the same, as is provided in rule 8 when the decree is solely for the payment of money. 11 PROCESS IN BEHALF OF AND AGAINST PERSONS NOT PARTIES Every person, not being a party in any cause, who has obtained an order, or in whose favor an order shall have been made, may enforce obedience to such order by the same process as if he were a party ; and every person, not being a party, against whom obedi- ence to any order of the court may be enforced, shall be liable to the same process for enforcing obedience to such orders as if he were a party. 12 ISSUE OF SUBPOENA TIME FOR ANSWER Whenever a bill is filed, and not before, the clerk shall issue the process of subpoena thereon, as of course, upon the application of the plaintiff, which shall contain the names of the parties and be returnable into the clerk's office twenty days from the issuing there- of. At the bottom of the subpoena shall be placed a memorandum, that the defendant is required to file his answer or other defense in the clerk's office on or before the twentieth day after service, exclud- ing the day thereof; otherwise the bill may be taken pro confesso. Where there are more than one defendant, a writ of subpoena may, at the election of the plaintiff, be sued out separately for each de- fendant, or a joint subpoena against all the defendants. 13 MANNER OF SERVING SUBPOENA (See ante, p. 434.) 14 ALIAS SUBPOENA Whenever any subpoena shall be returned not executed as to any defendant, the plaintiff shall be entitled to other subpoenas against such defendant, until due service is made. RULES OF PRACTICE FOB COURTS OF EQUITY OF U. 8. 605 15 PROCESS, BY WHOM SERVED The service of all process, mesne and final, shall be by the mar- shal of the district, or his deputy, or by some other person specially appointed by the court or judge for that purpose, and not other- wise. In the latter case, the person serving the process shall make affidavit thereof. 16 DEFENDANT TO ANSWER DEFAULT DECREE PRO CON- FESSO It shall be the duty of the defendant, unless the time shall be en- larged, for cause shown, by a judge of the court, to file his answer or other defense to the bill in the clerk's office within the time named in the subpoena as required by rule 12. In default thereof the plaintiff may, at his election, take an order as of course that the bill be taken pro confesso ; and thereupon the cause shall be proceeded in ex parte. 17 DECREE PRO CONFESSO TO BE FOLLOWED BY FINAL DE- CREESETTING ASIDE DEFAULT (See ante, p. 436.) 18 PLEADINGS TECHNICAL FORMS ABROGATED Unless otherwise prescribed by statute or these rules the techni- cal forms of pleadings in equity are abolished. 19 AMENDMENTS GENERALLY (See ante, p. 442.) 20 FURTHER AND PARTICULAR STATEMENT IN PLEADING MAY BE REQUIRED A further and better statement of the nature of the claim or de- fense, or further and better particulars of any matter stated in any pleading, may in any case be ordered, upon such terms, as to costs and otherwise, as may be just. 606 APPENDIX 21 SCANDAL AND IMPERTINENCE The right to except to bills, answers, and other proceedings for scandal or impertinence shall not obtain, but the court may, upon motion or its own initiative, order any redundant, impertinent or scandalous matter stricken out, upon such terms as the court shall think fit 22 ACTION AT LAW ERRONEOUSLY BEGUN AS SUIT IN EQUITY TRANSFER If at any time it appear that a suit commenced in equity should have been brought as an action on the law side of the court, it shall be forthwith transferred to the law side and be there proceed- ed with, with only such alteration in the pleadings as shall be es- sential. 23 MATTERS ORDINARILY DETERMINABLE AT LAW, WHEN ARISING IN SUIT IN EQUITY TO BE DISPOSED OF THEREIN If in a suit in equity a matter ordinarily determinable at law aris- es, such matters shall be determined in that suit according to the principles applicable, without sending the case or question to the law side of the court. 24 SIGNATURE OF COUNSEL Every bill or other pleading shall be signed individually by one or more solicitors of record, and such signatures shall be considered as a certificate by each solicitor that he has read the pleading so signed by him ; that upon the instructions laid before him regard- ing the case there is good ground for the same ; that no scanda- lous matter is inserted in the pleading; and that it is not inter- posed for delay. 25 BILL OF COMPLAINT CONTENTS Hereafter it shall be sufficient that a bill in equity shall contain, in addition to the usual caption: First, the full name, when known, of each plaintiff and defendant, and the citizenship and residence of each party. If any party be under any disability that fact shall be stated. RULES OF PRACTICE FOB COURTS OF EQUITY OF U 8. 607 Second, a short and plain statement of the grounds upon which the court's jurisdiction depends. Third, a short and simple statement of the ultimate facts upon which the plaintiff asks relief, omitting any mere statement of evi- dence. Fourth, if there are persons other than those named as defendants who appear to be proper parties, the bill should state why they are not made parties as that they are not within the jurisdiction of the court, or cannot be made parties without ousting the jurisdic- tion. Fifth, a statement of and prayer for any special relief pending the suit or on final hearing, which may be stated and sought in alterna- tive forms. If special relief pending the suit be desired the bill should be verified by the oath of the plaintiff, or someone having knowledge of the facts upon which such relief is asked: 26 JOINDER OF CAUSES OF ACTION The plaintiff may join in one bill as many causes of action, cog- nizable in equity, as he may have against the defendant But when there are more than one plaintiff, the causes of action joined must be joint, and if there be more than one defendant the liability must be one asserted against all of the material defendants, or sufficient grounds must appear for uniting the causes of action in order to promote the convenient administration of justice. If it appear that any such causes of action cannot be conveniently disposed of to- gether, the court may order separate trials. 27 STOCKHOLDER'S BlLJj (See ante, p. 289.) 28 AMENDMENT OF BILL AS OF COURSE (See ante, p. 443.) 29 DEFENSES HOW PRESENTED (See ante, p. 439.) 30 ANSWER CONTENTS COUNTER-CLAIM (See ante, p. 444.) 608 APPENDIX 31 REPLY WHEN REQUIRED WHEN CAUSE AT ISSUE (See ante, p. 447.) 32 ANSWER TO AMENDED BILL In every case where an amendment to the bill shall be made after answer filed, the defendant shall put in a new or supplemental an- swer within ten days after that on which the amendment or amended bill is filed, unless the time is enlarged or it is otherwise ordered by a judge of the court; and upon a default, the like proceedings may be had as upon an omission to put in an answer. 33 TESTING SUFFICIENCY OF DEFENSE (See ante, p. 446.) 34 SUPPLEMENTAL PLEADING Upon application of either party the court or judge, may, upon reasonable notice and such terms as are just, permit him to file and serve a supplemental pleading, alleging material facts occurring after his former pleading, or of which he was ignorant when it was made, including the judgment or decree of a competent court ren- dered after the commencement of the suit determining the matters in controversy or a part thereof. 35 BILLS OF REVIVOR AND SUPPLEMENTAL BILLS FORM It shall not be necessary in any bill of revivor or supplemental bill to set forth any of the statements in the original suit, unless the special circumstances of the case may require it. 36 OFFICERS BEFORE WHOM PLEADINGS VERIFIED Every pleading which is required to be sworn to by statute, or these rules, may be verified before any justice or judge of any court RULES OF PRACTICE FOR COURTS OF EQUITY OF U. 8. 609 of the United States, or of any state or territory, or of the Dis- trict of Columbia, or any clerk of any court of the United States, or of any territory, or of the District of Columbia, or any notary public. 37 PARTIES GENERALLY INTERVENTION Every action shall be prosecuted in the name of the real party In interest, but an executor, administrator, guardian, trustee of an ex- press trust, a party with whom or In whose name a contract has been made for the benefit of another, or a party expressly author- ized by statute, may sue in his own* name without joining with him the party for whose benefit the action is brought. All persons hav- ing an interest in the subject of the action and in obtaining the re- lief demanded may join as plaintiffs, and any person may be made a defendant who has or claims an interest adverse to the plaintiff. Any person may at any time be made a party if his presence is nec- essary or proper to a complete determination of the cause. Per- sons having a united interest must be joined on the same side as plaintiffs or defendants, but when any one refuses to Join, he may for such reason be made a defendant. Anyone claiming an interest in the litigation may at any time be permitted to assert his right by intervention, but the intervention shall be in subordination to, and in recognition of, the propriety of the main proceeding. 38 REPRESENTATIVES OF CLASS When the question is one of common or general interest to many persons constituting a class so numerous as to make it impractica- ble to bring them all before the court, one or more may sue or de- fend for the whole. 39 ABSENCE OF PERSONS WHO WOULD BE PROPER PARTIES (See ante, p. 257.) 40 NOMINAL PARTIES Where no account, payment, conveyance, or other direct relief Is sought against a party to a suit, not being an infant, the party, upon service of the subprena upon him, need not appear and an- swer the bill, unless the plaintiff specially requires him to do so by the prayer; but he may appear and answer at his option; and if he HUGHES FED. Ps.(2D ED.) 39 610 APPENDIX does not appear and answer he shall be bound by all the proceed- ings in the cause. If the plaintiff shall require him to appear and answer he shall be entitled to the costs of all the proceedings against him, unless the court shall otherwise direct. 41 SUIT TO EXECUTE TRUSTS OF WILL HEIR AS PARTY In suits to execute the trusts of a will, it shall not be necessary to make the heir at law a party ; but the plaintiff shall be at liberty to make the heir at law a party where he desires to have the will established against him. 42 JOINT AND SEVERAL DEMANDS In all cases in which the plaintiff has a joint and several demand against several persons, either as principals or sureties, it shall not be necessary to bring before the court as parties to a suit concern- ing such demand all the persons liable thereto; but the plaintiff may proceed against one or more of the persons severally liable. 43 DEFECT OF PARTIES RESISTING OBJECTION Where the defendant shall by his answer suggest that the bill of complaint is defective for want of parties, the plaintiff may, within fourteen days after answer filed, set down the cause for argument as a motion upon that objection only; and where the plaintiff shall not so set down his cause, but shall proceed therewith to a hearing, notwithstanding an objection for want of parties taken by the an- swer, he shall not at the hearing of the cause, if the defendant's ob- jection shall then be allowed, be entitled as of course to an order to amend his bill by adding parties; but the court shall be at lib- erty to dismiss the bill, or to allow an amendment on such terms as justice may require. 44 DEFECT OF PARTIES TARDY OBJECTION If a defendant shall, at the hearing of a cause, object that a suit is defective for want of parties, not having by motion or answer taken the objection and therein specified by name or description the parties to whom the objection applies, the court shall be at liberty to make a decree saving the rights of the absent parties. EULES OF PRACTICE FOB COURTS OF EQUITY OF U. 8. 611 45 DEATH OF PARTY REVIVOR In the event of the death of either party the court may, In a proper case, upon motion, order the suit to be revived by the substitution of the proper parties. If the successors or representatives of the deceased party fail to make such application within a reasonable time, then any other party may, on motion, apply for such relief, and the court, upon any such motion may make the necessary or- ders for notice to the parties to be substituted and for the filing of such pleadings or amendments as may be necessary. 46 TRIALTESTIMONY USUALLY TAKEN IN OPEN COURT- RULINGS ON OBJECTIONS TO EVIDENCE In all trials in equity the testimony of witnesses shall be taken orally in open court, except as otherwise provided by statute or these rules. The court shall pass upon the adniissibility of all evi- dence offered as in actions at law. When evidence is offered and excluded, and the party against whom the ruling is made excepts thereto at the time, the court shall take and report so much thereof, or make such a statement respecting it, as will clearly show the char- acter of the evidence, the form in which it was offered, the objection made, the ruling, and the exception. If the appellate court shall be of opinion that the evidence should have been admitted, it shall not reverse the decree unless it be clearly of opinion that material prej- udice will result from an affirmance, in which event it shall direct such further steps as justice may require. 47 DEPOSITIONS TO BE TAKEN IN EXCEPTIONAL INSTANCES The court, upon application of either party, when allowed by stat- ute, or for good and exceptional cause for departing from the gener- al rule, to be shown by affidavit, may permit the deposition of named witnesses, to be used before the court or upon a reference to a mas- ter, to be taken before an examiner or other named officer, upon the notice and terms specified in the order. All depositions taken under a statute, or under any such order of the court, shall be taken and filed as follows, unless otherwise ordered by the court or judge for good cause shown: Those of the plaintiff within sixty days from the time the cause is at issue; those of the defendant within thirty days from the expiration of the time for the filing of plaintiff's depo- sitions; and rebutting depositions by either party within twenty days after the time for taking original depositions expires. 612 APPENDIX 48 TESTIMONY OF EXPERT WITNESSES IN PATENT AND TRADE-MARK CASES In a case involving the validity or scope of a patent or trade-mark, the district court may, upon petition, order that the testimony in chief of expert witnesses, whose testimony is directed to matters of opinion, be set forth in affidavits and filed as follows: Those of the plaintiff within forty days after the cause is at issue; those of the defendant within twenty days after plaintiff's time has expired; and rebutting affidavits within fifteen days after the expiration of the time for filing original affidavits. Should the opposite party de- sire the production of any affiant for cross-examination, the court or judge shall, on motion, direct that said cross-examination and any re-examination take place before the court upon the trial, and un- less the affiant is produced and submits to cross-examination in com- pliance with such direction, his affidavit shall not be used as evi- dence in the cause. 49 EVIDENCE TAKEN BEFORE EXAMINERS, ETC. All evidence offered before an examiner or like officer, together with any objections, shall be saved and returned into the court. Dep- ositions, whether upon oral examination before an examiner or like officer or otherwise, shall be taken upon questions and answers re- duced to writing, or in the form of narrative, and the witness shall be subject to cross and re-examination. 50 STENOGRAPHER APPOINTMENT FEES When deemed necessary by the court or officer taking testimony, a stenographer may be appointed who shall take down testimony in shorthand and, if required, transcribe the same. His fee shall be fixed by the court and taxed ultimately as costs. The expense of taking a deposition, or the cost of a transcript, shall be advanced by the party calling the witness or ordering the transcript 51 EVIDENCE TAKEN BEFORE EXAMINERS, ETC. Objections to the evidence, before an examiner or like officer, shall be in short form, stating the grounds of objection relied upon, hut no transcript filed by such officer shall include argument or debate. RULES OF PRACTICE FOR COURTS OF EQUITY OF U. 8. 613 The testimony of each witness, after being reduced to writing, shall be read over to or by him, and shall be signed by him In the pres- ence of the officer; provided, that if the witness shall refuse to sign his deposition so taken, the officer shall sign the same, stating upon the record the reasons, if any, assigned by the witness for such re- fusal. Objection to any question or questions shall be noted by the officer upon the deposition, but he shall not have power to decide on the competency or materiality or relevancy of the questions. The court shall have power, and it shall be its duty, to deal with the costs of incompetent and immaterial or irrelevant depositions, or parts of them, as may be just. 52 ATTENDANCE OF WITNESSES BEFORE COMMISSIONER, MAS- TER OR EXAMINER Witnesses who live within the district, and whose testimony may be taken out of court by these rules, may be summoned to appear before a commissioner appointed to take testimony, or before a mas- ter or examiner appointed in any cause, by subpoena in the usual form, which may be issued by the clerk in blank and filled up by the party praying the same, or by the commissioner, master, or examin- er, requiring the attendance of the witnesses at the time and place specified, who shall be allowed for attendance the same compensa- tion as for attendance in court; and if any witness shall refuse to appear or give evidence it shall be deemed a contempt of the court, which being certified to the clerk's office by the commissioner, mas- ter, or examiner, an attachment may issue thereupon by order of the court or of any judge thereof, in the same manner as if the con- tempt were for not attending, pr for refusing to give testimony in, the court. In case of refusal of witnesses to attend or be sworn or to answer any question put by the commissioner, master or examiner or by counsel or solicitor, the same practice shall be adopted as is now practiced with respect to witnesses to be produced on examination before an examiner of said court on written interrogatories. 53 NOTICE OF TAKING TESTIMONY BEFORE EXAMINER, ETC. Notice shall be given by the respective counsel or parties to the opposite counsel or parties of the time and place of examination be- fore an examiner or like officer for such reasonable time as the court or officer may fix by order in each case. 54 DEPOSITIONS UNDER REV. STAT. 863, 865, 866, 867 CROSS- EXAMINATION (See ante, p. 450.) 614 APPENDIX 55 DEPOSITION DEEMED PUBLISHED WHEN FILED Upon the filing of any deposition or affidavit taken under these rules or any statute, it shall be deemed published, unless otherwise ordered by the court. 56 ON EXPIRATION OF TIME FOR DEPOSITIONS, CASE GOES ON TRIAL CALENDAR After the time has elapsed for taking and filing depositions under these rules, the case shall be placed on the trial calendar. There- after no further testimony by deposition shall be taken except for some strong reason shown by affidavit. In every such application the reason why the testimony of the witness cannot be had orally on the trial, and why his deposition has noi; been before taken, shall be set forth, together with the testimony which it is expected the witness will give. 57 CONTINUANCES After a cause shall be placed on the trial calendar it may be pass- ed over to another day of the same term, by consent of counsel or order of the court, but shall not be continued beyond the term save in exceptional cases by order of the court upon good cause shown by affidavit and upon such terms as the court shall in its discretion impose. Continuances beyond the term by consent of the parties shall be allowed on condition only that a stipulation be signed by counsel for all the parties and that all costs incurred theretofore be paid. Thereupon an order shall be entered dropping the case from the trial calendar, subject to reinstatement within one year upon application to the court by either party, in which event it shall be heard at the earliest convenient day. If not so reinstated within the year, the suit shall be dismissed without prejudice to a new one. 58 DISCOVERY INTERROGATORIES INSPECTION AND PRO- DUCTION OF DOCUMENTS ADMISSION OF EX- ECUTION OR GENUINENESS The plaintiff at any time after filing the bill and not later than twenty-one days after the joinder of issue, and the defendant at any RULES OF PRACTICE FOR COURTS OF EQUITY OF U. 8. 615 time after filing his answer and not later than twenty-one days aft- er the joinder of issue, and either party at any time thereafter by leave of the court or judge, may file interrogatories in writing for the discovery by the opposite party or parties of facts and docu- ments material to the support or defense of the cause, with a note at the foot thereof stating which of the interrogatories each of the parties is required to answer. But no party shall file more than one set of interrogatories to the same party without leave of the court or judge. If any party to the cause is a public or private corporation, any opposite party may apply to the court or judge for an order allowing him to file interrogatories to be answered by any officer of the cor- poration, and an order may be made accordingly for the examina- tion of such officer as may appear to be proper upon such interroga- tories as the court or judge shall think fit. Copies shall be filed for the use of the interrogated party and shall be sent by the clerk to the respective solicitors of record, or to the last known address of the opposite party if there be no record solic- itor. Interrogatories shall be answered, and the answers filed in the clerk's office, within fifteen days after they have been served, un- less the time be enlarged by the court or judge. Each interrogatory shall be answered separately and fully and the answers shall be in writing, under oath, and signed by the party or corporate officer interrogated. Within ten days after the service of interrogatories, objections to them, or any of them, may be presented to the court or judge, with proof of notice of the purpose so to do, and answers shall be deferred until the objections are determined, which shall be at as early a time as is practicable. In so far as the objections are sustained, answers shall not be required. The court or judge, upon motion and reasonable notice, may make all such orders as may be appropriate to enforce answers to inter- rogatories or to effect the inspection or production of documents in the possession of either party and containing evidence material to the cause of action or defense of his adversary. Any party failing or refusing to comply with such an order shall be liable to attachment, and shall also be liable, if a plaintiff, to have his bill dismisssed, and, if a defendant, to have his answer stricken out and be placed in the same situation as if he had failed to answer. By a demand served ten days before the trial, either party may call on the other to admit in writing the execution or genuineness of any document, letter or other writing, saving all just exceptions; and if such admission be not made within five days after such serv- ice, the costs of proving the document, letter or writing shall be paid by the party refusing or neglecting to make such admission, un- less at the trial the court shall find that the refusal or neglect was reasonable. 616 APPENDIX 59 REFERENCE TO MASTER EXCEPTIONAL, NOT USUAL Save in matters of account, a reference to a master shall be the exception, not the rule, and shall be made only upon a showing that some exceptional condition requires it. When such a reference is made, the party at whose instance or for whose benefit it is made shall cause the order of reference to be presented to the master for a hearing within twenty days succeeding the time when the reference was made, unless a longer time be specially granted by the court or judge ; if he shall omit to do so, the adverse party shall be at liberty forthwith to cause proceedings to be had before the master, at the costs of the party procuring the reference. 60 PROCEEDINGS BEFORE MASTER Upon every such reference, it shall be the duty of the master, as soon as he reasonably can after the same is brought before him, to assign a time and place for proceedings in the same, and to give due notice thereof to each of the parties, or their solicitors ; and if ei- ther party shall fail to appear at the time and place appointed, the master shall be at liberty to proceed ex parte, or, in his discretion, to adjourn the examination and proceedings to a future day, giving notice to the absent party or his solicitor of such adjournment; and it shall be the duty of the master to proceed with all reasonable diligence in every such reference, and with the least practicable de- lay, and either party shall be at liberty to apply to the court, or a judge thereof, for an order to the master to speed the proceedings and to make his report, and to certify to the court or judge the reason for any delay. 61 MASTER'S REPORT DOCUMENTS IDENTIFIED BUT NOT SET FORTH In the reports made by the master to the court, no part of any state of facts, account, charge, affidavit, deposition, examination, or answer brought in or used before him shall be stated or recited. But such state of facts, account, charge, affidavit, deposition, exam- ination, or answer shall be identified, and referred to, so as to in- form the court what state of facts, account, charge, affidavit, depo- sition, examination, or answer were so brought in or used. BULES OF PBACTICE FOB CODBT8 OF EQUITY OF U. 8. G17 62 POWERS OF MASTER The master shall regulate all the proceedings in every hearing before him, upon every reference; and he shall have full authority to examine the parties in the cause, upon oath, touching all matters contained in the reference; and also to require the production of all books, papers, writings, vouchers, and other documents applica- ble thereto; and also to examine on oath, viva voce, all witnesses produced by the parties before him, or by deposition, according to the acts of Congress, or otherwise, as here provided; and also to direct the mode In which the matters requiring evidence shall be proved before him; and generally to do all other acts, and direct all other inquiries and proceedings in the matters before him, which, he may deem necessary and proper to the justice and merits thereof and the rights of the parties. 63 FORM OF ACCOUNTS BEFORE MASTER All parties accounting before a master shall bring in their re- spective accounts in the form of debtor and creditor; and any of the other parties who shall not be satisfied with the account so brought in shall be at liberty to examine the accounting party viva voce, or upon interrogatories^ as the master shall direct. 64 FORMER DEPOSITIONS, ETC., MAY BE USED BEFORE MAS- TER All affidavits, depositions and documents which have been previ- ously made, read, or used in the court upon any proceeding in any cause or matter may be used before the master. 65 CLAIMANTS BEFORE MASTER EXAMINABLE BY HIM The master shall be at liberty to examine any creditor or other person coming in to claim before him, either upon written interrog- atories or viva voce, or in both modes, as the nature of the case may appear to him to require. The evidence upon such examinations shall be taken down by the master, or by some other person by his order and in his presence, if either party requires it, in order that the same may be used by the court if necessary. 618 APPENDIX 66 RETURN OF MASTER'S REPORT EXCEPTIONS HEARING The master, as soon as his report is ready, shall return the same into the clerk's office and the day of the return shall be entered by the clerk in the Equity Docket The parties shall have twenty days from the time of the filing of the report to file exceptions thereto, and if no exceptions are within that period filed by either party, the report shall stand confirmed. If exceptions are filed, they shall stand for hearing before the court, if then in session, or, if not, at the next sitting held thereafter, by adjournment or otherwise. 67 COSTS ON EXCEPTIONS TO MASTER'S REPORT In order to prevent exceptions to reports from being filed for frivo- lous causes, or for mere delay, the party whose exceptions are over- ruled, shall, for every exception overruled, pay five dollars costs to the other party, and for every exception allowed shall be entitled to the same costs. 68 APPOINTMENT AND COMPENSATION OF MASTERS The District Courts may appoint standing masters in chancery in their respective districts (a majority of all the judges thereof con- curring in the appointment), and they may also appoint a master pro hac vice in any particular case. The compensation to be allowed to every master shall be fixed by the District Court, in its discretion, having regard to all the circumstances thereof, and the compensation shall be charged upon and borne by such of the parties in the cause as the court shall direct. The master shall not retain his report as security for his compensation; but when the compensation is allowed by the court, he shall be entitled to an attachment for the amount against the party who is ordered to pay the same, if, upon notice thereof, he does not pay it within the time prescribed by the court. 69 PETITION FOR REHEARING (See ante, p. 463.) 70 SUITS BY OR AGAINST INCOMPETENTS Guardians ad litem to defend a suit may be appointed by the court, or by any judge thereof, for infants or other persons who are RULES OF PRACTICE FOR COURTS OF EQUITY OF U. 8. 619 under guardianship, or otherwise incapable of suing for themselves. All infants and other persons so incapable may sue by their guard- ians, if any, or by their prochein ami ; subject, however, to such orders as the court or judge may direct for the protection of infants and other persons. 71 FORM OF DECREE In drawing up decrees and orders, neither the bill, nor answer, nor other pleadings, nor any part thereof, nor the report of any master, nor any other prior proceeding, shall be recited or stated in the decree or order ; but the decree and order shall begin, in sub- stance, as follows: "This cause came on to be heard (or to be fur- ther heard, as the case may be) at this term, and was argued by counsel; and thereupon, upon consideration thereof, it was ordered, adjudged and decreed as follows, viz.:" (Here insert the decree or order.) 72 CORRECTION OF CLERICAL MISTAKES IN ORDERS AND DE- CREES Clerical mistakes in decrees or decretal orders, or errors arising from any accidental slip or omission, may, at any time before the close of the term at which final decree is rendered, be corrected by order of the court or a judge thereof, upon petition, without the form or expense of a rehearing. 73 PRELIMINARY INJUNCTIONS AND TEMPORARY RESTRAIN- ING ORDERS (See ante, p. 427.) 74 INJUNCTION PENDING APPEAL When an appeal from a final decree, in an equity suit, granting or dissolving an injunction, is allowed by a justice or a judge who took part in the decision of the cause, he may, in his discretion, at the time of such allowance, make an order suspending, modifying or restoring the injunction during the pendency of the appeal, upon such terms, as to bond or otherwise, as he may consider proper for the security of the rights of the opposite party. 75 RECORD ON APPEAL REDUCTION AND PREPARATION In case of appeal: (a) It shall be the duty of the appellant or his solicitor to file with the clerk of the court from which the appeal is prosecuted, together G20 APPENDIX with proof or acknowledgment of service of a copy on the appellee or his solicitor, a prsecipe which shall indicate the portions of the record to be incorporated into the transcript on such appeal. Should the appellee or his solicitor desire additional portions of the record incorporated into the transcript, he shall file with the clerk of the court his prsecipe also within ten days thereafter, unless the time shall be enlarged by the court or a judge thereof, indicating such additional portions of the record desired by him. (b) The evidence to be included in the record shall not be set forth in full, but shall be stated in simple and condensed form, all parts not essential to the decision of the questions presented by the appeal being omitted and the testimony of witnesses being stated only in narrative form, save that if either party desires it, and the court or judge so directs, any part of the testimony shall be repro- duced in the exact words of the witness. The duty of so condensing and stating the evidence shall rest primarily on the appellant, who shall prepare his statement thereof and lodge the same in the clerk's office for the examination of the other parties at or before the time of filing his prsecipe under paragraph (a) of this rule. He shall also notify the other parties or their solicitors of such lodgment and shall name a time and place when he will ask the court or judge fo ap- prove the statement, the time so named to be at least ten days after such notice. At the expiration of the time named or such further time as the court or judge may allow, the statement, together with any objections made or amendments proposed by any party, shall be presented to the court or the judge, and if the statement be true, complete and properly prepared, it shall be approved by the court or judge, and if it be not true, complete or properly prepared, it shall be made so under the direction of the court or judge and shall then be approved. When approved, it shall be filed in the clerk's office and become a part of the record for the purposes of the appeal. (c) If any difference arise between the parties concerning direc- tions as to the general contents of the record to be prepared on the appeal, such difference shall be submitted to the court or judge in conformity with the provisions of paragraph (b) of this rule and shall be covered by the directions which the court or judge may give on the subject. 76 RECORD ON APPEAL REDUCTION AND PREPARATION- COSTS CORRECTION OF OMISSIONS In preparing the transcript on an appeal, especial care shall be taken to avoid the inclusion of more than one copy of the same paper and to exclude the formal and immaterial parts of all ex- hibits, documents and other papers included therein; and for any in- fraction of this or any kindred rule the appellate court may with- hold or impose costs as the circumstances of the case and the dis- EULES OF PRACTICE FOE COURTS OF EQUITY OF U. 8. 621 couragement of like Infractions In the future may require. Costs for such an infraction may be imposed upon offending solicitors as well as parties. If, in the transcript, anything material to either party be omitted by accident or error, the appellate court, on a proper suggestion or its own motion, may direct that the omission be corrected by a sup- plemental transcript. 77 RECORD ON APPEALS-AGREED STATEMENT When the questions presented by an appeal can be determined by the appellate court without an examination of all the pleadings and evidence, the parties, with the approval of the District Court or the m i APPENDIX 81 THESE RULES EFFECTIVE FEBRUARY 1, 1913 OLD RULES ABROGATED These rules shall be in force on and after February 1, 1913, and shall govern all proceedings in cases then pending or thereafter brought, save that where in any then pending cause an order has been made or act done which cannot be changed without doing sub- stantial injustice, the court may give effect to such order or act to the extent necessary to avoid any such injustice. All rules theretofore prescribed by the Supreme Court, regulating the practice in suits in equity, shall be abrogated when these rules take effect THE JUDICIAL CODE ACT MARCH 3, 1911, c. 231. [S. 7031.] An Act to Codify, Revise, and Amend the Laws Relating to the Judiciary. (36 Stat 1087.) Be it enacted, &c., That the laws relating to the judiciary be, and they hereby are, codified, revised, and amended, with title, chapters, head-notes, and sections, entitled, numbered, and to read as follows: TITLE THE JUDICIARY CHAPTER ONE DISTRICT COURTS ORGANIZATION Sec. 1. District courts established; ap- pointment and residence of judges. 2. Salaries of district judges. 3. Clerks. 4. Deputy clerks. 5. Criers and bailiffs. 6. Records; where kept. 7. Effect of altering terms. 8. Trials not discontinued by new term. 9. Court always open as courts of admiralty and equity. 10. Monthly adjournments for trial of criminal causes. 11. Special terms. 12. Adjournment in case of nonat- tendance of judge. 13. Designation of another judge in case of disability of judge. Sec. 14. Designation of another judge in case of an accumulation of business. 15. When designation to be made by Chief Justice. 16. New appointment and revoca- tion. 17. Designation of district judge in aid of another judge. 18. When circuit judge may be des- ignated to hold district court. 19. Duty of district and circuit judge in such cases. 20. When district judge is interested or related to parties. 21. When affidavit of personal bias or prejudice of judge is filed. 22. Continuance in case of vacancy in office. 23. Districts having more than one judge; division of business. District court* established; appointment and residence of judges Sec. 1. In each of the districts described in chapter five, there shall be a court called a district court, for which there shall be ap- pointed one judge, to be called a district judge; except that in the northern district of California, the northern district of Illinois, the district of Maryland, the district of Minnesota, the district of Ne- braska, the district of New Jersey, the eastern district of New HUGHES FED.PB.(2o ED.) (623) 624 APPENDIX York, the northern and southern districts of Ohio, the district of Oregon, the eastern and western districts of Pennsylvania, and the western district of Washington, there shall be a*n additional district judge in each, and in the southern district of New York, three addi- tional district judges: Provided, That whenever a vacancy shall occur in the office of the district judge for the district of Maryland, senior in commission, such vacancy shall not be filled, and there- after there shall be but one district judge in said district: Provided further, That there shall be one judge for the eastern and western districts of South Carolina, one judge for the eastern and middle districts of Tennessee, and one judge for the northern and southern districts of Mississippi: Provided further, That the district judge for the middle district of Alabama shall continue as heretofore to be a district judge for the northern district thereof. Every district judge shall reside in the district or one of the districts for which he is appointed, and for offending against this provision shall be deem- ed guilty of a high misdemeanor. Salaries of district judges Sec. 2. Each of the district judges shall receive a salary of six thousand dollars a year, to be paid in monthly installments. Clerks Sec. 3. A clerk shall be appointed for each district court by the judge thereof, except in cases otherwise provided for by law. Deputy clerks Sec. 4. Except as otherwise specially provided by law, the clerk of the district court for each district may, with the approval of the district judge thereof, appoint such number of deputy clerks as may be deemed necessary by such judge, who may be designated to reside and maintain offices at such places of holding court as the judge may determine. Such deputies may be removed at the pleasure of the clerk appointing them, with the concurrence of the district judge. In case of the death of the clerk, his deputy or deputies shall, unless removed, continue in office and perform the duties of the clerk, in his name, until a clerk is appointed and qualified; and for the de- fault or misfeasances in office of any such deputy, whether in the lifetime of the clerk or after his death, the clerk and his estate and the sureties on his official bond shall be liable ; and his executor or administrator shall have such remedy for any such default or misfeasances committed after his death as the clerk would be en- titled to if the same had occurred in his lifetime. Criers and bailiffs Sec. 5. The district court for each district may appoint a crier for the court; and the marshal may appoint such number of per- sons, not exceeding five, as the judge may determine, to wait upon the grand and other juries, and for other necessary purposes. THE JUDICIAL CODE 625 Records; where kept Sec. 6. The records of a district court shall be kept at the place where the court is held. When it is held at more than one place in any district and the place of keeping the records is not specially pro- vided by law, they shall be kept at either of the places of holding the court which may be designated by the district judge. Effect of altering terms Sec. 7. No action, suit, proceeding, or process in any district court shall abate or be rendered invalid by reason of any act chang- ing the time of holding such court, but the same shall be deemed to be returnable to, pending, and triable in the terms established next after the return day thereof. Trials not discontinued by new term Sec. 8. When the trial or hearing of any cause, civil or criminal, in a district court has been commenced and is in progress before a jury or the court, it shall not be stayed or discontinued by the ar- rival of the time fixed by law for another session of said court; but the court may proceed therein and bring it to a conclusion in the same manner and with the same effect as if another stated term of the court had not intervened. Courts always open as conrts of admiralty and equity Sec. 9. The district courts, as courts of admiralty and as courts of equity, shall be deemed always open for the purpose of filing any pleading, of issuing and returning mesne and final process, and of making and directing all interlocutory motions, orders, rules, and other proceedings preparatory to the hearing, upon their merits, of all causes pending therein. Any district judge may, upon reasonable notice to the parties, make, direct, and award, at chambers or in the clerk's office, and in vacation as well as in term, all such process, commissions, orders, rules, and other proceedings, whenever the same are not grantable of course, according to the rules and practice of the court. Monthly adjournments for trial of criminal causes Sec. 10. District courts shall hold monthly adjournments of their regular terms, for the trial of criminal causes, when their business requires it to be done, in order to prevent undue expenses and de- lays in such cases. Special terms Sec. 11. A special term of any district court may be held at the same place where any regular term is held, or at such other place in the district as the nature of the business may require, and at such time and upon such notice as may be ordered by the district judge. Any business may be transacted at such special term which might be transacted at a regular term. HUGHES FED.PB.(2o ED.) 40 626 APPENDIX Adjournment in case of nonattendance of judge Sec. 12. If the judge of any district court is unable to attend at the commencement of any regular, adjourned, or special term, or any time during such term, the court may be adjourned by the mar- shal, or clerk, by virtue of a written order directed to him by the judge, to the next regular term, or to any earlier day, as the order may direct. Designation of another judge in case of disability of judge Sec. 13. When any district judge is prevented, by any disability, from holding any stated or appointed term of his district court, and that fact is made to appear by the certificate of the clerk, under the seal of the court, to any circuit judge of the circuit in which the district lies, or, in the absence of all the circuit judges, to the circuit justice of the circuit in which the district lies, any such circuit judge or justice may, if in his judgment the public interests so require, designate and appoint the judge of any other district in the same circuit to hold said court, and to discharge all the judicial duties of the judge so disabled, during such disability. Whenever it shall be certified by any such circuit judge or, in his absence, by the circuit justice of the circuit in which the district lies, that for any sufficient reason it is impracticable to designate and appoint a judge of an- other district within the circuit to perform the duties of such dis- abled judge, the chief justice may, if in his judgment the public in- terests so require, designate and appoint the judge of any district in another circuit to hold said court and to discharge all the judicial duties of the judge so disabled, during such disability. Such ap- pointment shall be filed in the clerk's office, and entered on the min- utes of the said district court, and a certified copy thereof, under the seal of the court, shall be transmitted by the clerk to the judge so designated and appointed. Designation of another judge in case of an accumulation of business Sec. 14. When, from the accumulation or urgency of business in any district court, the public interests require the designation and appointment hereinafter provided, and the fact is made to appear, by the certificate of the clerk, under the seal of the court, to any circuit judge of the circuit in which the district lies, or, in the ab- sence of all the circuit judges, to the circuit justice of the circuit in which the district lies, such circuit judge or justice may desig- nate and appoint the judge of any other district in the same circuit to have and exercise within the district first named the same pow- ers that are vested in the judge thereof. Each of the said district judges may, in case of such appointment, hold separately at the same time a district court in such district, and discharge all the judicial duties of the district judge therein. THE JUDICIAL CODE 627 When designation to be made by Chief Justice Sec. 15. If all the circuit judges and the circuit justice are ab- sent from the circuit, or are unable to execute the provisions of ei- ther of the two preceding sections, or if the district judge so desig- nated is disabled or neglects to hold the court and transact the business for which he is designated, the clerk of the district court shall certify the fact to the Chief Justice of the United States, who may thereupon designate and appoint in the manner aforesaid the judge of any district within such circuit or within any other circuit ; and said appointment shall be transmitted to the clerk and be acted upon by him as directed in the preceding section. New appointment and revocation Sec. 16. Any such circuit judge, or circuit justice, or the Chief Justice, as the case may be, may, from time to time, if in his judg- ment the public interests so require, make a new designation and appointment of any other district judge, in the manner, for the du- ties, and with the powers mentioned in the three preceding sections, and revoke any previous designation and appointment. Designation of district judge in aid of another judge Sec. 17. It shall be the duty of the senior circuit judge then present in the circuit, whenever in his judgment the public interest so requires, to designate and appoint, in the manner and with the powers provided in section fourteen, the district judge of any judi- cial district within his circuit to hold a district court in the place or in aid of any other district judge within the same circuit. "When circuit judge may be designated to hold district court Sec. 18. Whenever, in the judgment of the senior circuit judge of the circuit in which the district lies, or of the circuit justice as- signed to such circuit, or of the Chief Justice, the public interest shall require, the said judge, or associate justice, or Chief Justice, shall designate and appoint any circuit judge of the circuit to hold said district court. Duty of district and circuit judge in such cases Sec. 19. It shall be the duty of the district or circuit judge who is designated and appointed under either of the six preceding sec- tions, to discharge all the judicial duties for which he is so appoint- ed, during the time for which he is so appointed ; and all the acts and proceedings in the courts held by him, or by or before him, in pursuance of said provisions, shall have the same effect and validity as if done by or before the district judge of the said district When district judge is interested or related to parties Sec. 20. Whenever it appears that the judge of any district court is in any way concerned in interest in any suit pending therein, or has been of counsel or is a material witness for either party, or is so 628 APPENDIX related to or connected with either party as to render it improper, in his opinion, for him to sit on the trial, it shall be his duty, on application by either party, to cause the fact to be entered on the records of the court; and also an order that an authenticated copy thereof shall be forthwith certified to the senior circuit judge for said circuit then present in the circuit; and thereupon such proceed- ings shall be had as are provided in section fourteen. "When affidavit of personal bias or prejudice of judge is filed Sec. 21. Whenever a party to any action or proceeding, civil or criminal, shall make and file an affidavit that the judge before whom the action or proceeding is to be tried or heard has a personal bias or prejudice either against him or in favor of any opposite party to the suit, such judge shall proceed no further therein, but another judge shall be designated in the manner prescribed in the section last preceding, or chosen in the manner prescribed in section twen- ty-three, to hear such matter. Every such affidavit shall state the facts and the reasons for the belief that such bias or prejudice ex- ists, and shall be filed not less than ten days before the beginning of the term of the court, or good cause shall be shown for the fail- ure to file it within such time. No party shall be entitled in any case to file more than one such affidavit ; and no such affidavit shall be filed unless accompanied by a certificate of counsel of record that such affidavit and application are made in good faith. The same proceedings shall be had when the presiding judge shall file with the clerk of the court a certificate that he deems himself unable for any reason to preside with absolute impartiality in the pending suit or action. Continuance in case of vacancy in office Sec. 22. When the office of judge of any district court becomes vacant, all process, pleadings, and proceedings pending before such court shall, if necessary, be continued by the clerk thereof until such times as a judge shall be appointed, or designated to hold such court; and the judge so designated, while holding such court, shall possess the powers conferred by, and be subject to the provisions contained in, section nineteen. Districts having more than one judge; division of business Sec. 23. In districts having more than one district judge, the judges may agree upon the division of business and assignment of cases for trial in said district; but in case they do not so agree, the senior circuit judge of the circuit in which the district lies, shall make all necessary orders for the division of business and the as- signment of cases for trial in said district THE JUDICIAL CODE G29 CHAPTER TWO DISTRICT COURTS JURISDICTION Sec. 24. Original Jurisdiction. Par. 1. Where the United States are plaintiffs; and of civil suits at common law or In equity. 2. Of crimes and offenses. 3. Of admiralty causes, seizures, and prizes. 4. Of suits under any law relating to the slave trade. 5. Of cases under in- ternal revenue, cus- toms, and tonnage laws. 6. Of suits under postal laws. 7. Of suits under the pat- ent, the copyright, and the trade -mark laws. 8. Of suits for violation of interstate com- merce laws. 9. Of penalties and for- feitures. 10. Of suits on debentures. 11. Of suits for injuries on account of acts done under laws of the United States. 12. Of suits concerning civil rights. 13. Of suits against per- sons having knowl- edge of conspiracy, etc. Sec. Par. 14. Of suits to redress the deprivation, un- der color of law, of civil rights. 15. Of suits to recover cer- tain offices. 16. Of suits against na- tional-banking asso- ciations. 17. Of suits by aliens for torts. 18. Of suits against con- suls and vice con- suls. 19. Of suits and proceed- ings in bankruptcy. 20. Of suits against the United States. 21. Of suits for the un- lawful inclosure of public lands. 22. Of suits under immi- gration and con- tract-labor laws. 23. Of suits against trusts, monopolies, and un- lawful combinations. 24. Of suits concerning allotments of land to Indians. 25. Of partition suits where United States is joint tenant. 25. Appellate jurisdiction under Chi- nese-exclusion laws. 26. Appellate jurisdiction over Yel- lowstone National Park. 27. Jurisdiction of crimes on Indian reservations In South Dakota. Original jurisdiction Sec. 24. The district courts shall have original jurisdiction as fol- lows: Where the United States are plaintiffs; and of civil suits at common law or in equity First [See ante, p. 219.] Of crimes and offenses Second. Of all crimes and offenses cognizable under the author- ity of the United States. 630 APPENDIX Of admiralty causes, seizures, and prizes Third. Of all civil causes of admiralty and maritime Jurisdiction, saving to suitors in all cases the right of a common-law remedy where the common law is competent to give it; of all seizures on land or waters not within admiralty and maritime jurisdiction; of all prizes brought into the United States; and of all proceedings for the condemnation of property taken as prize. Of suits under any law relating to the slave trade Fourth. Of all suits arising under any law relating to the slave trade. Of cases under internal revenue, customs, and tonnage laws Fifth. Of all cases arising under any law providing for internal revenue, or from revenue from imports or tonnage, except those cases arising under any law providing revenue from imports, jurisdiction of which has been conferred upon the Court of Customs Appeals. Of suits under postal laws Sixth. Of all cases arising under the postal laws. Of suits under the patent, the copyright, and the trade-mark laws Seventh. Of all suits at law or in equity arising under the pat- ent, the copyright, and the trade-mark laws. Of suits for violation of interstate commerce laws Eighth. Of all suits and proceedings arising under any law regu- lating commerce, except those suits and proceedings exclusive juris- diction of which has been conferred upon the Commerce Court. Of penalties and forfeitures Ninth. Of all suits and proceedings for the enforcement of pen- alties and forfeitures incurred under any law of the United States. Of suits on debentures Tenth. Of all suits by the assignee of any debenture for drawback of duties, issued under any law for the collection of duties, against the person to whom such debenture was originally granted, or against any indorser thereof, to recover the amount of such debenture. Of suits for injuries on account of acts done under laws of the United States Eleventh. Of all suits brought by any person to recover damages for any injury to his person or property on account of any act done fcy him, under any law of the United States, for the protection or collection of any of the revenues thereof, or to enforce the right of citizens of the United States to vote in the several States. Of suits concerning civil rights Twelfth. Of all suits authorized by law to be brought by any person for the recovery of damages on account of any injury to his THE JUDICIAL CODE 631 person or property, or of the deprivation of any right or privilege of a citizen of the United States, by any act done in furtherance of any conspiracy mentioned in section nineteen hundred and eighty, Revis- ed Statutes. Of suits against persons having knowledge of conspiracy, etc. Thirteenth. Of all suits authorized by law to be brought against any person who, having knowledge that any of the wrongs mentioned in section nineteen hundred and eighty, Revised Statutes, are about to be done, and, having power to prevent or aid in preventing the same, neglects or refuses so to do, to recover damages for any such wrongful act Of suits to redress the deprivation, under color of law, of civ- il rights Fourteenth. Of all suits at law or in equity, authorized by law to be brought by any person to redress the deprivation, under color of any law, statute, ordinance, regulation, custom, or usage, of any State, of any right, privilege, or immunity, secured by the Constitu- tion of the United States, or of any right secured by any law of the United States providing for equal rights of citizens of the United States, or of all persons within the jurisdiction of the United States. Of suits to recover certain offices Fifteenth. Of all suits to recover possession of any office, except that of elector of President or Vice President, Representative in or Delegate to Congress, or member of a State legislature, authorized by law to be brought, wherein it appears that the sole question touch- ing the title to such office arises out of the denial of the right to vote to any citizen offering to vote, on account of race, color, or previous condition of servitude: Provided, That such jurisdiction shall ex- tend only so far as to determine the rights of the parties to such of- fice by reason of the denial of the right guaranteed by the Constitu- tion of the United States, and secured by any law, to enforce the right of citizens of the United States to vote in all the States. Of suits against national-banking associations Sixteenth. Of all cases commenced by the United States, or by direction of any officer thereof, against any national banking asso- ciation, and cases for winding up the affairs of any such bank; and of all suits brought by any banking association established in the district for which the court is held, under the provisions of title "Na- tional Banks," Revised Statutes, to enjoin the Comptroller of the Currency, or any receiver acting under his direction, as provided by said title. And all national banking associations established under the laws of the United States shall, for the purposes of all other actions by or against them, real, personal, or mixed, and all suits in equity, be deemed citizens of the States in which they are respectively located. 632 APPENDIX Of suits by aliens for torts Seventeenth. Of all suits brought by any alien for a tort only, in violation of the laws of nations or of a treaty of the United States. Of suits against consuls and vice consuls Eighteenth. Of all suits against consuls aand vice consuls. Of suits and proceedings in bankruptcy Nineteenth. Of all matters and proceedings in bankruptcy. Of suits against the United State* Twentieth. Concurrent with the Court of Claims, of all claims not exceeding ten thousand dollars founded upon the Constitution of the United States or any law of Congress, or upon any regulation of an Executive Department, or upon any contract, express or implied, with the Government of the United States, or for damages, liquidated or unliquidated, in cases not sounding in tort, in respect to which claims the party would be entitled to redress against the United States, either in a court of law, equity, or admiralty, if the United States were suable, and of all set-offs, counterclaims, claims for dam- ages, whether liquidated or unliquidated, or other demands whatso- ever on the part of the Government of the United States against any claimant against the Government in said court: Provided, however, That nothing in this paragraph shall be construed as giving to either the district courts or the Court of Claims jurisdiction to hear and determine claims growing out of the late Civil War, and common- ly known as "war claims," or to hear and determine other claims which had been rejected or reported on adversely prior to the third day of March, eighteen hundred and eighty-seven, by any court, de- partment, or commission authorized to hear and determine the same, or to hear and determine claims for pensions; or as giving to the district courts jurisdiction of cases brought to recover fees, salary, or compensation for official services of officers of the United States or brought for such purpose by persons claiming as such officers or as assignees or legal representatives thereof; but no suit pending on the twenty-seventh day of June, eighteen hundred and ninety-eight, shall abate or be affected by this provision: And provided further, That no suit against the Government of the United States shall be allowed under this paragraph unless the same shall have been brought within six years after the right accrued for which the claim is made: Provided, That the claims of married women, first accrued during marriage, of persons under the age of twenty-one years, first accrued during minority, and of idiots, lunatics, insane persons, and persons beyond the seas at the time the claim accrued, entitled to the claim, shall not be barred if the suit be brought within three years after the disability has ceased; but no other disability than those enumerated shall prevent any claim from being barred, nor shall any of the said disabilities operate cumulatively. All suits brought THE JUDICIAL CODE 633 and tried under the provisions of this paragraph shall be tried by the court without a Jury. Of suits for the unlawful incosure of public lands Twenty-first. Of proceedings in equity, by writ of injunction, to restrain violations of the provisions of laws of the United States to prevent the unlawful inclosure of public lands; and it shall be suffi- cient to give the court jurisdiction if service of original process be had in any civil proceeding on any agent or employee having charge or control of the inclosure. Of suits under immigration and contract-labor laws Twenty-second. Of all suits and proceedings arising under any law regulating the immigration of aliens, or under the contract labor laws. Of suits against trusts, monopolies, and unlawful combina- tions Twenty-third. Of all suits and proceedings arising under any law to protect trade and commerce against restraints and monopolies. Of suits concerning allotments of land to Indians Twenty-fourth. Of all actions, suits, or proceedings involving the right of any person, in whole or in part of Indian blood or descent, to any allotment of land under any law or treaty. And the judg- ment or decree of any such court in favor of any claimant to an al- lotment of land shall have the same effect, when properly certified to the Secretary of the Interior, as if such allotment had been al- lowed and approved by him; but this provision shall not apply to any lands now or hereafter held by either of the Five Civilized Tribes, the Osage Nation of Indians, nor to any of the lands within the Quapaw Indian Agency: Provided, That the right of Appeal shall be allowed to either party as in other cases. (As amended De- cember 21, 1911, 37 Stat. 46.) Of partition suits where United States is joint tenant Twenty-fifth. Of suits in equity brought by any tenant in com- mon or joint tenant for the partition of lands in cases where the United States is one of such tenants in common or joint tenants, such suits to be brought in the district in which land is situate. Appellate jurisdiction under Chinese-exclusion laws Sec. 25. The district courts shall have appellate jurisdiction of the judgments and orders of United States commissioners in cases arising under the Chinese exclusion laws. Appellate jurisdiction over Yellowstone National Park Sec. 26. The district court for the district of Wyoming shall have Jurisdiction of all felonies committed within the Yellowstone National Park and appellate jurisdiction of Judgments in cases of con- 634 APPENDIX viction before the commissioner authorized to be appointed tinder section five of an Act entitled "An Act to protect the birds and an- imals in Yellowstone National Park, and to punish crimes in said Park, and for other purposes," approved May seventh, eighteen hundred and ninety-four. Jurisdiction of crimes on Indian reservations in South. Da- kota Sec. 27. The district court of the United States for the district of South Dakota shall have jurisdiction to hear, try, and determine all actions and proceedings in which any person shall be charged with the crime of murder, manslaughter, rape, assault with intent to kill, arson, burglary, larceny, or assault with a dangerous weapon, com- mitted within the limits of any Indian reservation in the State of South Dakota. CHAPTER THREE DISTRICT COURTS REMOVAL OF CAUSES Sec. 28. Removal of suits from State to United States district courts. 29. Pr6cedure for removal. 30. Suits under grants of land from different States. 31. Removal of causes against per- sons denied any civil rights, etc. 32. When petitioner is in actual cus- tody of State court. 33. Suits and prosecutions against 'revenue officers, etc. Sec. 34. Removal of suits by aliens. 35. When copies of records are re- fused by clerk of State court. 36. Previous attachment bonds, or- ders, etc., remain valid. 37. Suits improperly in district court may be dismissed or remanded. 38. Proceedings in suits removed. 39. Time for filing record; return of record, how enforced. Removal of suits front State to United States district courts Sec. 28. [See ante, p. 309.] Procedure for removal Sec. 29. [See ante, p. 351.] Suits under grants of land from different States Sec. 30. [See ante, p. 325.] Removal of causes against persons denied any civil rights, etc. Sec. 31. When any civil suit or criminal prosecution is commenced in any State court, for any cause whatsoever, against any person who is denied or can not enforce in the judicial tribunals of the State, or in the part of the State where such suit or prosecution is pending, any right secured to him by any law providing for the equal civil rights of citizens of the United States, or of all persons within the THE JUDICIAL CODE 635 jurisdiction of the United States, or against any officer, civil or mili- tary, or other person, for any arrest or imprisonment or other tres- passes or wrongs made or committed by virtue of or under color of authority derived from any law providing for equal rights as afore- said, or for refusing to do any act on the ground that it would be inconsistent with such law, such suit or prosecution may, upon the petition of such defendant, filed in said State court at any time be- fore the trial or final hearing of the cause, stating the facts and ver- ified by oath, be removed for trial into the next district court to be held in the district where it is pending. Upon the filing of such pe- tition all further proceedings in the State courts shall cease, and shall not be resumed except as hereinafter provided. But all bail and other security given in such suit or prosecution shall continue in like force and effect as if the same had proceeded to final judg- ment and execution in the State court. It shall be the duty of the clerk of the State court to furnish such defendant, petitioning for a removal, copies of said process against him, and of all pleadings, depositions, testimony, and other proceedings in the case. If such copies are filed by said petitioner in the district court on the first day of its session, the cause shall proceed therein in the same man- ner as if it had been brought there by original process; and if the said clerk refuses or neglects to furnish such copies, the petitioner may thereupon docket the case in the district court, and the said court shall then have jurisdiction therein, and may, upon proof of such refusal or neglect of said clerk, and upon reasonable notice to the plaintiff, require the plaintiff to file a declaration, petition, or complaint in the cause; and, in case of his default, may order a nonsuit, and dismiss the case at the costs of the plaintiff, and such dismissal shall be a bar to any further suit touching the matter in controversy. But if, without such refusal or neglect of said clerk to furnish such copies and proof thereof, the petitioner for removal fails to file copies in the district court, as herein provided, a certifi- cate, under the seal of the district court, stating such failure, shall be given, and upon the production thereof in said State court the cause shall proceed therein as If no petition for removal had been filed. When petitioner is in actual custody of State court Sec. 32. When all the acts necessary for the removal of any suit or prosecution, as provided in the preceding section, have been per- formed, and the defendant petitioning for such removal is in actual custody on process issued by said State court, it shall be the duty of the clerk of said district court to issue a writ of habeas corpus cum causa, and of the marshal, by virtue of said writ, to take the body of the defendant into his custody, to be dealt with in said dis- trict court according to law and the orders of said court, or, in vaca- tion, of any judge thereof ; and the marshal shall file with or deliver to the clerk of said State court a duplicate copy of said writ. 636 APPENDIX Suits and prosecutions against revenue officers, etc. Sec. 33. When any civil suit or criminal prosecution is commenc- ed in any court of a State against any officer appointed under or act- ing by authority of any revenue law of the United States now or hereafter enacted, or against any person acting under or by authori- ty -of any such officer, on account of any act done under color of his office or of any such law, or on account of any right, title, or author- ity claimed by such officer or other person under any such law; or is commenced against any person holding property or estate by title de- rived from any such officer, and affects the validity of any such rev- enue law ; or when any suit Is commenced against any person for or on account of anything done by him while an officer of either House of Congress in the discharge of his official duty, in executing any or- der of such House, the said suit or prosecution may, at any time be- fore the trial or final hearing thereof, be removed for trial into the district court next to be holden in the district where the same is pending, upon the petition of such defendant to said district court, and in the following manner: Said petition shall set forth the na- ture of the suit or prosecution and be verified by affidavit, and, to- gether with a certificate signed by an attorney or counselor at law of some court of record of the State where such suit or prosecution is commenced, or of the United States, stating that, as counsel for the petitioner, he has examined the proceedings against him and carefully inquired into all the matters set forth in the petition, and that he believes them to be true, shall be presented to the said dis- trict court, if in session, or if it be not, to the clerk thereof at his office, and shall be filed in said office. The cause shall thereupon be entered on the docket of the district court, and shall proceed as a cause originally commenced in that court ; but all bail and other se- curity given upon such suit or prosecution shall continue in like force and effect as if the same had proceeded to final judgment and execu- tion in the State court. When the suit is commenced in the State court by summons, subpoena, petition, or other process except capias, the clerk of the district court shall issue a writ of certiorari to the State court, requiring it to send to the district court the record and proceedings in the cause. When it is commenced by capias or by any other similar form or proceeding by which a personal arrest is ordered, he shall issue a writ of habeas corpus cum causa, a dupli- cate of which shall be delivered to the clerk of the State court, or left at his office, by the marshal of the district or his deputy, or by some person duly authorized thereto; and thereupon it shall be the duty of the State court to stay all further proceedings in the cause, and the suit or prosecution, upon delivery of such process, or leaving the same as aforesaid, shall be held to be removed to the district court, and any further proceedings, trial, or judgment therein in the State court shall be void. If the defendant in the suit or prosecution be in actual custody on mesne process therein, it shall be the duty of the marshal, by virtue of the writ of habeas corpus cum causa, THE JUDICIAL CODE C37 to take the body of the defendant Into his custody, to be dealt with in the cause according to law and the order of the district court, or, in vacation, of any judge thereof; and if, upon the removal of such suit or prosecution, it is made to appear to the district court that no copy of the record and proceedings therein in the State court can be obtained, the district court may allow and require the plaintiff to proceed de novo and to file a declaration of his cause of action, and the parties may thereupon proceed as in actions originally brought in said district court. On failure of the plaintiff so to pro- ceed, judgment of non prosequitur may be rendered against him, with costs for the defendant. Removal of suits by aliens Sec. 34. Whenever a personal action has been or shall be brought in any State court by an alien against any citizen of a State who is, or at the time the alleged action accrued was, a civil officer of the United States, being a non-resident of that State wherein juris- diction is obtained by the State court, by personal service of process, such action may be removed into the district court of the United States in and for the district in which the defendant shall have been served with the process, in the same manner as now provided for the removal of an action brought in a State court by the provi- sions of the preceding section. When copies of records are refused by clerk of State court Sec. 35. In any case where a party is entitled to copies of the records and proceedings in any suit or prosecution in a State court, to be used in any court of the United States, if the clerk of said State court, upon demand, and the payment or tender of the legal fees, refuses or neglects to deliver to him certified copies of such records and proceedings, the court of the United States in which such records and proceedings are needed may, on proof by affidavit that the clerk of said State court has refused or neglected to deliver copies thereof, on demand as aforesaid, direct such record to be sup- plied by affidavit or otherwise, as the circumstances of the case may require and allow; and thereupon such proceeding, trial, and judg- ment may be had in the said court of the United States, and all such processes awarded, as if certified copies of such records and proceed- ings had been regularly before the said court Previous attachment bonds, orders, etc., remain valid Sec. 36. When any suit shall be removed from a State court to a district court of the United States, any attachment or sequestration of the goods or estate of the defendant had in such suit in the State court shall hold the goods or estate so attached or sequestered to answer the final judgment or decree in the same manner as by law they would have been held to answer final judgment or decree had it been rendered by the court in which said suit was commenced. All bonds, undertakings, or security given by either party in such suit 638 APPENDIX prior to its removal shall remain valid and effectual notwithstanding said removal; and all injunctions, orders, and other proceedings had in such suit prior to its removal shall remain in full force and ef- fect until dissolved or modified by the court to which such suit shall be removed. Suits improperly in district court may be dismissed or re- manded Sec. 37. [See ante, p. 285.] Proceedings in suits removed Sec. 38. The district court of the United States shall, in all suits removed under the provisions of this chapter, proceed therein as if the suit had been originally commenced in said district court, and the same proceedings had been taken in such suit in said district court as shall have been had therein in said State court prior to its removal. Time for filing record; return of record, now enforced Sec. 39. In all causes removable under this chapter, if the clerk of the State court in which any such cause shall be pending shall refuse to any one or more of the parties or persons applying to re- move the same, a copy of the record therein, after tender of legal fees for such copy, said clerk so offending shall, on conviction there- of in the district court of the United States to which said action or proceeding was removed, be fined not more than one thousand dol- lars, or imprisoned not more than one year, or both. The district court to which any cause shall be removable under this chapter shall have power to issue a writ of certiorari to said State court com- manding said State court to make return of the record in any such cause removed as aforesaid, or in which any one or more of the plaintiffs or defendants have complied with the provisions of this chapter for the removal of the same, and enforce said writ according to law. If it shall be impossible for the parties or persons remov- ing any cause under this chapter, or complying with the provisions for the removal thereof, to obtain such copy, for the reason that the clerk of said State court refuses to furnish a copy, on payment of legal fees, or for any other reason, the district court shall make an order requiring the prosecutor in any such action or proceeding to enforce forfeiture or recover penalty, as aforesaid, to file a copy of the paper or proceeding by which the same was commenced, within such time as the court may determine; and in default thereof the court shall dismiss the said action or proceeding; but if said order shall be complied with, then said district court shall require the other party to plead, and said action or proceeding shall proceed to final judgment. The said district court may make an order requiring the parties thereto to plead de novo; and the bond given, condition- ed as aforesaid, shall be discharged so far as it requires copy of the record to be filed as aforesaid. THE JUDICIAL CODE CHAPTER FOUR DISTRICT COURTS MISCELLANEOUS PROVISIONS Sec. 40. Capital cases; where triable. 41. Offenses on the high seas, etc., where triable. 42. Offenses begun in one district and completed in another. 43. Suits for penalties and forfei- tures, where brought. 44. Suits for internal-revenue taxes, where brought. 45. Seizures, where cognizable. 46. Capture of insurrectionary prop- erty, where cognizable. 47. Certain seizures cognizable in any district into which the property is taken. 48. Jurisdiction in patent cases. 49. Proceedings to enjoin Comptrol- ler of the Currency. 50. When a part of several defend- ants can not be served. 51. Civil suits; where to be brought. 52. Suits in States containing more than one district. 53. Districts containing more than one division; where suit to be brought; transfer of criminal cases. 54. Suits of a local nature, where to be brought. 55. When property lies in different districts in same State. 56. When property lies in different States in same circuit; juris- diction of receiver. Sec. 57. Absent defendants in suits to enforce liens, remove clouds on titles, etc. 58. Civil causes may be transferred to another division of district by agreement. 59. Upon creation of new district or division, where prosecution to be instituted or action brought. 60. Creation of new district, or transfer of territory not to di- vest lien; how lien to be en- forced. 61. Commissioners to administer oaths to appraisers. 62. Transfer of records to district court when a Territory be- comes a State. 63. District judge shall demand and compel delivery of records of territorial court. 64. Jurisdiction of district courts in cases transferred from territo- rial courts. 65. Receivers to manage property according to State laws. 66. Suits against receiver. 67. Certain persons not to be ap- pointed or employed as officers of courts. 68. Certain persons not to be mas- ters or receivers. Capital cases; where triable Sec. 40. The trial of offenses punishable with death shall be had in the county where the offense was committed, where that can be done without great inconvenience. Offenses on the high seas, etc., where triable Sec. 41. The trial of all offenses committed upon the high seas, or elsewhere out of the jurisdiction of any particular State or district, shall be in the district where the offender is found, or into which he is first brought. Offenses begun in one district and completed in another Sec. 42. When any offense against the United States is begun in one judicial district and completed in another, it shall be deemed to have been committed in either, and may be dealt with, inquired of, tried, determined, and punished in either district, in the same man- ner as if it had been actually and wholly committed therein. 640 APPENDIX Suits for penalties and forfeitures, where brought Sec. 43. All pecuniary penalties and forfeitures may be sued for and recovered either in the district where they accrue or in the dis- trict where the offender is found. Suits for internal-revenue taxes, where brought Sec. 44. Taxes accruing under any law providing internal revenue may be sued for and recovered either in the district where the liabil- ity for such tax occurs or in the district where the delinquent resides. Seizures, where cognizable Sec. 45. Proceedings on seizures made on the high seas, for for- feiture under any law of the United States, may be prosecuted in any district into which the property so seized is brought and pro- ceedings instituted. Proceedings on such seizures made within any district shall be prosecuted in the district where the seizure is made, except in cases where it is otherwise provided. Capture of insurrectionary property, where cognizable Sec. 46. Proceedings for the condemnation of any property cap- tured, whether on the high seas or elsewhere out of the limits of any judicial district, or within any district, on account of its being purchased or acquired, sold or given, with intent to use or employ the same, or to suffer it to be used or employed, in aiding, abetting, or promoting any insurrection against the Government of the United States, or knowingly so used or employed by the owner thereof, or with his consent, may be prosecuted in any district where the same may be seized, or into which it may be taken and proceedings first instituted. Certain seizures cognizable in any district into which the property is taken Sec. 47. Proceedings on seizures for forfeiture of any vessel or cargo entering any port of entry which has been closed by the Presi- dent in pursuance of law, or of goods and chattels coming from a State or section declared by proclamation of the President to be in insurrection into other parts of the United States, or of any vessel or vehicle conveying such property, or conveying persons to or from such State or section, or of any vessel belonging, in whole or in part, to any inhabitant of such State or section, may be prosecuted in any district into which the property so seized may be taken and proceedings instituted; and the district court thereof shall have as full jurisdiction over such proceedings as if the seizure was made in that district. Jurisdiction in patent cases Sec. 48. In suits brought for the infringement of letters patent the district courts of the United States shall have jurisdiction, in law or in equity, in the district of which the defendant is an inhabitant, THE JUDICIAL CODE 641 or in any district in which the defendant, whether a person, partner- ship, or corporation, shall have committed acts of infringement and have a regular and established place of business. If such suit is brought in a district of which the defendant is not an inhabitant, but in which such defendant has a regular and established place of business, service of process, summons, or subpoena upon the defend- ant may be made by service upon the agent or agents engaged in con- ducting such business in the district in which suit is brought Proceedings to enjoin Comptroller of the Currency Sec. 49. All proceedings by any national banking association to enjoin the Comptroller of the Currency, under the provisions of any law relating to national banking associations, shall be had in the district where such association is located. When a part of several defendants can not be served Sec. 50. [See ante, p. 256.] Civil suits; where to be brought Sec. 51. [See ante, p. 264.] Suits in States containing more than one district Sec. 52. [See ante, p. 271.] Districts containing more than one division; where suit to be brought; transfer of criminal cases Sec. 53. When a district contains more than one division, every suit not of a local nature against a single defendant must be brought in the division where he resides ; but if there are two or more de- fendants residing in different divisions of the district it may be brought in either division. All mesne and final process subject to the provisions of this section may be served and executed in any or all of the divisions of the district, or if the State contains more than one district, then in any of such districts, as provided in the preced- ing section. All prosecutions for crimes or offenses shall be had within the division of such districts where the same were committed, unless the court, or the judge thereof, upon the application of the defendant, shall order the cause to be transferred for prosecution to another division of the district. When a transfer is ordered by the court or judge, all the papers in the case, or certified copies thereof, shall be transmitted by the clerk, under the seal of the court, to the division to which the cause is so ordered transferred; and thereupon the cause shall be proceeded with in said division in the same man- ner as if the offense had been committed therein. In all cases of the removal of suits from the courts of a State to the district court of the United States such removal shall be to the United States dis- trict court in the division in which the county is situated from which the removal is made; and the time within which the removal shall be perfected, in so far as it refers to or is regulated by the terms HUGHES FED.PB.(2o ED.) 41 642 APPENDIX of United States courts, shall be deemed to refer to the terms of the United States district court in such division. Suits of a local nature, where to be brought Sec. 54. [See ante, p. 272.] When property lies in different districts in same State Sec. 55. [See ante, p. 272.] When property lies in different States in same circuit; juris- diction of receiver Sec. 56. Where in any suit in which a receiver shall be appointed the land or other property of a fixed character, the subject of the suit, lies within different States in the same judicial circuit, the re- ceiver so appointed shall, upon giving bond as required by the court, immediately be vested with full jurisdiction and control over all the property, the subject of the suit, lying or being within such circuit ; subject, however, to the disapproval of such order, within thirty days thereafter, by the circuit court of appeals for such circuit, or by a circuit judge thereof, after reasonable notice to adverse parties and an opportunity to be heard upon the motion for such disapprov- al; and subject, also, to the filing and entering in the district court for each district of the circuit in which any portion of the property may lie or be, within ten days thereafter, of a duly certified copy of the bill and of the order of appointment. The disapproval of such appointment within such thirty days, or the failure to file such cer- tified copy of the bill and order of appointment within ten days, as herein required, shall divest such receiver of jurisdiction over all such property except that portion thereof lying or being within the State in which the suit is brought. In any case coming within the provisions of this section, in which a receiver shall be appointed, process may issue and be executed within any district of the circuit in the same manner and to the same extent as if the property were wholly within the same district; but orders affecting such property shall be entered of record in each district in which the property af- fected may lie or be. Absent defendants in suits to enforce liens, remove clouds on titles, etc. Sec. 57. [See ante, p. 273.J Civil causes may be transferred to another division of district by agreement Sec. 58. Any civil cause, at law or in equity, may, on written stipulation of the parties or of their attorneys of record signed and filed with the papers in the case, in vacation or in term, and on the written order of the judge signed and filed in the case in vacation or on the order of the court duly entered of record in term, be transfer- red to the court of any other division of the same district, without regard to the residence of the defendants, for trial. When a cause THE JUDICIAL CODE 643 shall be ordered to be transferred to a court In any other division, it shall be the duty of the clerk of the court from which the transfer is made to carefully transmit to the clerk of the court to which the transfer is made the entire file of papers in the cause and all docu- ments and deposits in his court pertaining thereto, together with a certified transcript of the records of all orders, interlocutory decrees, or other entries in the cause ; and he shall certify, under the seal of the court, that the papers sent are all which are on file in said court belonging to the cause; for the performance of which duties said clerk so transmitting and certifying shall receive the same fees as are now allowed by law for similar services, to be taxed in the bill of costs, and regularly collected with the other costs in the cause; and such transcript, when so certified and received, shall henceforth con- stitute a part of the record of the cause in the court to which the transfer shall be made. The clerk receiving such transcript and orig- inal papers shall file the same and the case shall then proceed to final disposition as other cases of a like nature. Upon creation of new district or division, where prosecntion to be instituted or action brought Sec. 59. Whenever any new district or division has been or shall be established, or any county or territory has been or shall be trans- ferred from one district or division to another district or division, prosecutions for crimes and offenses committed within such district, division, county, or territory prior to such transfer, shall be com- menced and proceeded with the same as if such new district or divi- sion had not been created, or such county or territory had not been transferred, unless the court, upon the application of the defendant, shall order the cause to be removed to the new district or division for trial. Civil actions pending at the time of the creation of any such district or division, or the transfer of any such county or territory, and arising within the district or division so created or the county or territory so transferred, shall be tried in the district or division as it existed at the time of the institution of the action, or in the district or division so created, or to which the county or territory is or shall be so transferred, as may be agreed upon by the parties, or as the court shall direct. The transfer of such prosecutions and actions shall be made in the manner provided in the section last preceding. Creation of new district, or transfer of territory not to divest lien; how lien to be enforced Sec. 60. The creation of a new district or division, or the trans- fer of any county or territory from one district or division to anoth- er district or division, shall not affect or divest any lien theretofore acquired in the circuit or district court by virtue of a decree, judg- ment, execution, attachment, seizure, or otherwise, upon property situated or being within the district or division so created, or the county or territory so transferred. To enforce any such lien, the clerk of the court in which the same is acquired, upon the request 644 APPENDIX and at the cost of the party desiring the same, shall make a true and certified copy of the record thereof, which, when so made and certi- fied, and filed in the proper court of the district or division in which such property is situated or shall be, after such transfer, shall con- stitute the record of such lien in such court, and shall be evidence in all courts and places equally with the original thereof; and there- after like proceedings shall be had thereon, and with the same effect, as though the cause or proceeding had been originally instituted in such court The provisions of this section shall apply not only in all cases where a district or division is created, or a county or any ter- ritory is transferred by this or any future Act, but also in all cases where a district or division has been created, or a county or any ter- ritory has been transferred by any law heretofore enacted. Commissioners to administer oaths to appraisers Sec. 61. Any district judge may appoint commissioners, before whom appraisers of vessels or goods and merchandise seized for breaches of any law of the United States, may be sworn; and such oaths, so taken, shall be as effectual as if taken before the judge in open court. Transfer of records to district court when a Territory be- comes a State Sec. 62. When any Territory is admitted as a State, and a district court is established therein, all the records of the proceedings in the several cases pending in the highest court of said Territory at the time of such admission, and all records of the proceedings in the several cases in which judgments or decrees had been rendered in said territorial court before that time, and from which writs of error could have been sued out or appeals could have been taken, or from which writs of error had been sued out or appeals had been taken and prosecuted to the Supreme Court or to the circuit court of appeals, shall be transferred to and deposited in the district court for the said State. District judge shall demand and compel delivery of records of territorial court Sec. 63. It shall be the duty of the district judge, in the case pro- vided in the preceding section, to demand of the clerk, or other per- son having possession or custody of the records therein mentioned, the delivery thereof, to be deposited in said district court; and in case of the refusal of such clerk or person to comply with such de- mand, the said district judge shall compel the delivery of such rec- ords by attachment or otherwise, according to law. Jurisdiction of district courts in cases transferred from terri- torial courts . Sec. 64. When any Territory is admitted as a State, and a district court is established therein, the said district court shall take cogni- THE JUDICIAL CODE 645 zance of all cases which were pending and undetermined in the trial courts of such Territory, from the judgments or decrees to be ren- dered in which writs of error could have been sued out or appeals taken to the Supreme Court or to the circuit court of appeals, and shall proceed to hear and determine the same. Receivers to manage property according to State laws Sec. 65. Whenever in any cause pending in any court of the Unit- ed States there shall be a receiver or manager in possession of any property, such receiver or manager shall manage and operate such property according to the requirements of the valid laws of the State in which such property shall be situated, in the same manner that the owner or possessor thereof would be bound to do if in pos- session thereof. Any receiver or manager who shall willfully violate any provision of this section shall be fined not more than three thou- sand dollars, or imprisoned not more than one year, or both. Suits against receiver Sec. 66. Every receiver or manager of any property appointed by any court of the United States may be sued in respect of any act or transaction of his in carrying on the business connected with such property, without the previous leave of the court in which such re- ceiver or manager was appointed; but such suit shall be subject to the general equity jurisdiction of the court in which such manager or receiver was appointed so far as the same may be necessary to the ends of justice. Certain persons not to be appointed or employed as officers of conrts Sec. 67. No person shall be appointed to or employed in any of- fice or duty in any court who is related by affinity or consanguinity within the degree of first cousin to the judge of such court: Provid- ed, That no such person at present holding a position or employment in a circuit court shall be debarred from similar appointment or em- ployment in the district court succeeding to such circuit court juris- diction. (As amended December 21, 1911, 37 Stat 46.) Certain persons not to be masters or receivers Sec. 68. No clerk of a district court of the United States or his deputy shall be appointed a receiver or master in any case, except where the judge of said court shall determine that special reasons exist therefor, to be assigned in the order of appointment CHAPTER FIVE DISTRICT COURTS DISTRICTS, AND PROVISIONS APPLICA- BLE TO PARTICULAR STATES [Omitted as of no general interest] 646 APPENDIX CHAPTER SIX CIRCUIT COURTS OF APPEALS Sec. 116. Circuits. 117. Circuit courts of appeals. 118. Circuit judges. 119. Allotment of justices to the cir- cuits. 120. Chief Justice and associate jus- tices of Supreme Court, and district judges, may sit In cir- cuit court of appeals. 121. Justices allotted to circuits, how designated. 122. Seals, forms of process, and rules. 123. Marshals. 124. Clerks. 125. Deputy clerks; appointment and removal. 126. Terms. 127. Rooms for court, how provided. 128. Jurisdiction; when judgment final. Sec. 129. Appeals in proceedings for In- junctions and receivers. 130. Appellate and supervisory ju- risdiction under the bankrupt act. 131. Appeals from the United States court for China. 132. Allowance of appeals, etc. 133. Writs of error and appeals from the supreme courts of Arizona and New Mexico. 134. Writs of error and appeals from district court for Alaska to circuit court of appeals for ninth circuit; court may cer- tify questions to the Supreme Court. 135. Appeals and writs of error from Alaska; where heard. Circuits Sec. 116. There shall be nine judicial circuits of the United States, constituted as follows: First. The first circuit shall include the districts of Rhode Island, Massachusetts, New Hampshire, and Maine. Second. The second circuit shall include the districts of Vermont, Connecticut, and New York. Third. The third circuit shall include the districts of Pennsyl- vania, New Jersey, and Delaware. Fourth. The fourth circuit shall include the districts of Mary- land, Virginia, West Virginia, North Carolina, and South Carolina. Fifth. The fifth circuit shall include the districts of Georgia, Florida, Alabama, Mississippi, Louisiana, and Texas. Sixth. The sixth circuit shall include the districts of Ohio, Michi- gan, Kentucky, and Tennessee. Seventh. The seventh circuit shall include the districts of Indi- ana, Illinois, and Wisconsin. Eighth. The eighth circuit shall include the districts of Nebraska, Minnesota, Iowa, Missouri, Kansas, Arkansas, Colorado, Wyoming, North Dakota, South Dakota, Utah, and Oklahoma. Ninth. The ninth circuit shall include the districts of California, Oregon, Nevada, Washington, Idaho, Montana, and Hawaii. Circuit courts of appeals Sec. 117. There shall be in each circuit a circuit court of appeals, which shall consist of three judges, of whom two shall constitute a THE JUDICIAL CODE 647 quorum, and which shall be a court of record, with appellate juris- diction, as hereinafter limited and established. Circuit judges Sec. 118. There shall be in the second, seventh, and eighth cir- cuits, respectively, four circuit judges; in the fourth circuit, two circuit judges; and in each of the other four circuits, three circuit judges to be appointed by the President, by and with the advice and consent of the Senate. They shall be entitled to receive a salary at the rate of seven thousand dollars a year each, payable monthly. Each circuit judge shall reside within his circuit. The circuit judges in each circuit shall be judges of the circuit court of appeals in that circuit, and it shall be the duty of each circuit judge in each circuit to sit as one of the judges of the circuit court of appeals in that circuit from time to time according to law: Provided, That nothing in this section shall be construed to prevent any circuit judge holding district court or serving in the Commerce Court, or otherwise, as provided for and authorized in other sections of this act (As amended January 13, 1912, 37 Stat 52.) Allotment of justices to the circuits Sec. 119. The Chief Justice and associate justices of the Su- preme Court shall be allotted among the circuits by an order of the court, and a new allotment shall be made whenever it becomes neces- sary or convenient by reason of the alteration of any circuit, or of the new appointment of a Chief Justice or associate justice, or other- wise. If a new allotment becomes necessary at any other time than during a term, it shall be made by the Chief Justice, and shall be binding until the next term and until a new allotment by the court. Whenever, by reason of death or resignation, no justice is allotted to a circuit, the Chief Justice may, until a justice is regularly al- lotted thereto, temporarily assign a justice of another circuit to such circuit Chief Justice and associate justices of Supreme Court, and district judges, may sit in circuit court of appeals Sec. 120. The Chief Justice and the associate justices of the Su- preme Court assigned to each circuit, and the several district judges within each circuit, shall be competent to sit as judges of the circuit court of appeals within their respective circuits. In case the Chief Justice or an associate justice of the Supreme Court shall attend at any session of the circuit court of appeals, he shall preside. In the absence of such Chief Justice, or associate justice, the circuit judges in attendance upon the court shall preside in the order of the senior- ity of their respective commissions. In case the full court at any time shall not be made up by the attendance of the Chief Justice or the associate justice, and the circuit judges, one or more district judges within the circuit shall sit in the court according to such or- der or provision among the district Judges as either by general or 648 APPENDIX particular assignment shall be designated by the court: Provided, That no judge before whom a cause or question may have been tried or heard in a district court, or existing circuit court, shall sit on the trial or hearing of such cause or question in the circuit court of ap- peals. Justices allotted to circuits, how designated Sec. 121. The words "circuit justice" and "justice of a circuit," when used in this title, shall be understood to designate the justice of the Supreme Court who is allotted to any circuit; but the word "judge," when applied generally to any circuit, shall be understood to include such justice. Seals, forms of process, and rules Sec. 122. Each of said circuit courts of appeals shall prescribe the form and style of its seal, and the form of writs and other process and procedure as may be conformable to the exercise of its jurisdic- tion; and shall have power to establish all rules and regulations for the conduct of the business of the court within its jurisdiction as conferred by law. Marshals Sec. 123. The United States marshals in and for the several dis- tricts of said courts shall be the marshals of said circuit courts of appeals, and shall exercise the same powers and perform the same duties, under the regulations of the court, as are exercised and per- formed by the marshal of the Supreme Court of the United States, so far as the same may be applicable. Clerks Sec. 124. Each court shall appoint a clerk, who shall exercise the same powers and perform the same duties in regard to all matters within its jurisdiction, as are exercised and performed by the clerk of the Supreme Court, so far as the same may be applicable. Deputy clerks; appointment and removal Sec. 125. The clerk of the circuit court of appeals for each circuit may, with the approval of the court, appoint such number of deputy clerks as the court may deem necessary. Such deputies may be re- moved at the pleasure of the clerk appointing them, with the approv- al of the court. In case of the death of the clerk his deputy or depu- ties shall, unless removed by the court, continue in office and per- form the duties of the clerk in his name until a clerk is appointed and has qualified; and for the defaults or misfeasances in office of any such deputy, whether in the lifetime of the clerk or after his death, the clerk and Ms estate and the sureties on his official bond shall be liable, and his executor or administrator shall have such remedy for such defaults or misfeasances committed after his death as the clerk would be entitled to if the same had occurred in hia lifetime. THE JUDICIAL CODE 649 Terms Sec. 126. A term shall- be held annually by the circuit courts of appeals In the several judicial circuits at the following places, and at such times as may be fixed by said courts, respectively: In the first circuit, In Boston; in the second circuit, in New York; in the third circuit, in Philadelphia ; in the fourth circuit, in Richmond ; in the fifth circuit, in New Orleans, Atlanta, Fort Worth, and Mont- gomery; in the sixth circuit, in Cincinnati; in the seventh circuit, in Chicago; in the eighth circuit, in Saint Louis, Denver or Cheyenne, and Saint Paul; in the ninth circuit, in San Francisco, and each year in two other places in said circuit to be designated by the judg- es of said court; and in each of the above circuits, terms may be held at such other times and in such other places as said courts, re- spectively, may from time to time designate: Provided, That terms shall be held in Atlanta on the first Monday in October, in Fort Worth on the first Monday in November, in Montgomery on the third Monday in October, in Denver or in Cheyenne on the first Monday in September, and in Saint Paul on the first Monday in May. All ap- peals, writs of error, and other appellate proceedings which may be taken or prosecuted from the district courts of the United States in the State of Georgia, in the State of Texas, and in the State of Ala- bama, to the circuit court of appeals for the fifth judicial circuit shall be heard and disposed of, respectively, by said court at the terms held in Atlanta, in Fort Worth, and in Montgomery, except that appeals or writs of error in cases of injunctions and in all oth- er cases which, under the statutes and rules, or in the opinion of the court, are entitled to be brought to a speedy hearing may be heard and disposed of wherever said court may be sitting. All ap- peals, writs of errors, and other appellate proceedings which may hereafter be taken or prosecuted from the district court of the Unit- ed States at Beaumont, Texas, to the circuit court of appeals for the fifth circuit, shall be heard and disposed of by the said circuit court of appeals at the terms of court held at New Orleans: Provided, That nothing herein shall prevent the court from hearing appeals or writs of error wherever the said courts shall sit, in cases of injunc- tions aud in all other cases which, under the statutes and the rules, or in the opinion of the court, are entitled to be brought to a speedy hearing. All appeals, writs of error, and other appellate proceedings which may be taken or prosecuted from the district courts of the United States in the States of Colorado, Utah, and Wyoming, and the supreme court of the Territory of New Mexico to the circuit court of appeals for the eighth judicial circuit, shall be heard and disposed of by said court at the terms held either in Denver or In Cheyenne, except that any case arising in any of said States or Ter- ritory may, by consent of all the parties, be heard and disposed of at a term of said court other than the one held in Denver or Chey- enne. 650 APPENDIX Rooms for court, how provided Sec. 127. The marshals for the several districts in which said cir- cuit courts of appeals may be held shall, under the direction of the Attorney General, and with his approval, provide such rooms in the public buildings of the United States as may be necessary for the business of said courts, and pay all incidental expenses of said court, including criers, bailiffs, and messengers: Provided, That in case proper rooms can not be provided in such buildings, then the mar- shals, with the approval of the Attorney General, may, from time to time, lease such rooms as may be necessary for such courts. Jurisdiction; -when judgment final Sec. 128. [See ante, p. 471.] Appeals in proceedings for injunctions and receivers Sec. 129. [See ante, p. 575.] Appellate and supervisory jurisdiction under the bankrupt act Sec. 130. The circuit courts of appeals shall have the appellate and supervisory jurisdiction conferred upon them by the Act entitled "An Act to establish a uniform system of bankruptcy throughout the United States," approved July first, eighteen hundred and ninety- eight, and all laws amendatory thereof, and shall exercise the same in the manner therein prescribed. Appeals from the United States court for China Sec. 131. The circuit court of appeals for the ninth circuit is em- powered to hear and determine writs of error and appeals from the United States court for China, as provided in the Act entitled "An Act creating a United States court for China and prescribing the ju- risdiction thereof," approved June thirtieth, nineteen hundred and six. Allowance of appeals, etc. Sec. 132. Any judge of a circuit court of appeals, in respect of cases brought or to be brought before that court, shall have the same powers and duties as to allowances of appeals and writs of error, and the conditions of such allowances, as by law belong to the jus- tices or judges in respect of other courts of the United States, re- spectively. Writs of error and appeals from the supreme courts of Arizo- na and New Mexico Sec. 133. The circuit courts of appeals, in cases in which their judgments and decrees are made final by this title, shall have ap- pellate jurisdiction, by writ of error or appeal, to review the judg- ments, orders, and decrees of the supreme courts of Arizona and New Mexico, as by this title they may have to review the judgments, orders, and decrees of the district courts; and for that purpose said THE JUDICIAL CODE 651 Territories shall, by orders of the Supreme Court of the United States, to be made from time to time, be assigned to particular cir- cuits. Writs of error and appeals from district court for Alaska to circuit court of appeals for ninth circuit; court may certify questions to the Supreme Court Sec. 134. In all cases other than those in which a writ of error or appeal will lie direct to the Supreme Court of the United States as provided in section two hundred and forty-seven, in which the amount involved or the value of the subject-matter in controversy shall exceed five hundred dollars, and in all criminal cases, writs of error and appeals shall lie from the district court for Alaska or from any division thereof, to the circuit court of appeals for the ninth circuit, and the judgments, orders, and decrees of said court shall be final in all such cases. But whenever such circuit court of appeals may desire the instruction of the Supreme Court of the United States upon any question or proposition of law which shall have arisen in any such case, the court may certify such question or proposition to the Supreme Court, and thereupon the Supreme Court shall give its instruction upon the question or proposition certified to it, and its in- structions shall be binding upon the circuit court of appeals. Appeals and writs of error from Alaska; where heard Sec. 135. All appeals, and writs of error, and other cases, coming from the district court for the district of Alaska to the circuit court of appeals for the ninth circuit, shall be entered upon the docket and heard at San Francisco, California, or at Portland, Oregon, or at Seattle, Washington, as the trial court before whom the case was tried below shall fix and determine: Provided, That at any time be- fore the hearing of any appeal, writ of error, or other case, the parties thereto, through their respective attorneys, may stipulate at which of the above-named places the same shall be heard, in which case the case shall be remitted to and entered upon the docket at the place so stipulated and shall be heard there. CHAPTER SEVEN THE COURT OF CLAIMS Sec. 136. Appointment, oath, and salary of judges. 137. Seal. 138. Session; quorum. 139. Officers of the court. 140. Salaries of officers. 141. Clerk's bond. 142. Contingent fund. Sec. 143. Reports to Congress; copies for departments, etc. 144. Members of Congress not to practice in the court. 145. Jurisdiction. Par. 1. Claims against the United States. 2. Set-offs. 8. Disbursing officers. 652 APPENDIX Sec. 146. Judgments for set-off or coun- terclaims; how enforced. 147. Decree on accounts of disburs- ing officers. 148. Claims referred by departments. 149. Procedure in cases transmitted by departments. 150. Judgments in cases transmitted by departments; how paid. 151. Either House of Congress may refer certain claims to court. 152. Costs may be allowed prevailing party. 153. Claims growing out of treaties not cognizable therein. 154. Claims pending in other courts. 155. Aliens. 156. All claims to be filed within six years; exceptions. 157. Rules of practice; may punish contempts. 158. Oaths and acknowledgments. 159. Petitions and verification. 160. Petition dismissed, when. 161. Burden of proof and evidence as to loyalty. 162. Claims for proceeds arising from sales of abandoned prop- erty. 163. Commissioners to take testi- mony. 164. Power to call upon departments for information. 165. When testimony not to be taken. 166. Examination of claimant. Sec. 167. Testimony; where taken. 168. Witnesses before commission- ers. 169. Cross-examinations. 170. Witnesses; how sworn. 171. Fees of commissioners, by whom paid. 172. Claims forfeited for fraud. 173. Claims under act of June 16, 1874. 174. New trial on motion of claim- ant. 175. New trial on motion of United States. 176. Cost of printing record. 177. No interest on claims. 178. Effect of payment of judgment. 179. Final judgments a bar. 180. Debtors to the United States may have amount due ascer- tained. 181. Appeals. 182. Appeals in Indian cases. 183. Attorney General's report to Congress. 184. Loyalty a jurisdictional fact in certain cases. 185. Attorney General to appear for the defense. 186. Persons not to be excluded as witnesses on account of color or because of Interest; plain- tiff may be witness for Gov- ernment. 187. Reports of court to Congress. Appointment, oath, and salary of judges Sec. 136. The Court of Claims, established by the Act of Febru- ary twenty-fourth, eighteen hundred and fifty-five, shall be contin- ued. It shall consist of a chief justice and four judges, who shall be appointed by the President, by and with the advice and consent of the Senate, and hold their offices during good behavior. Each of them shall take an oath to support the Constitution of the United States, and to discharge faithfully the duties of his office. The chief justice shall be entitled to receive an annual salary of six thousand five hundred dollars, and each of the other judges an annual salary of six thousand dollars, payable monthly, from the Treasury. Seal Sec. 137. The Court of Claims shall have a seal, with such device as it may order. Session; quorum Sec. 138. The Court of Claims shall hold one annual session at the city of Washington, beginning on the first Monday in December THE JUDICIAL CODE 653 and continuing as long as may be necessary for the prompt disposi- tion of the business of the court. Any three of the judges of said court shall constitute a quorum, and may hold a court for the trans- action of business: Provided, That the concurrence of three judges shall be necessary to the decision of any case. Officers of the court Sec. 139. The said court shall appoint a chief clerk, an assistant clerk, if deemed necessary, a bailiff, and a chief messenger. The clerks shall take an oath for the faithful discharge of their duties, and shall be under the direction of the court in the performance thereof; and for misconduct or incapacity they may be removed by it from office ; but the court shall report such removals, with the cause thereof, to Congress, if in session, or if not, at the next ses- sion. The bailiff shall hold his office for a term of four years, unless sooner removed by the court for cause. Salaries of officers Sec. 140. The salary of the chief clerk shall be three thousand five hundred dollars a year; of the assistant clerk two thousand five hundred dollars a year; of the bailiff one thousand five hundred dollars a year, and of the chief messenger one thousand dollars a year, payable monthly from the Treasury. Clerk's bond Sec. 141. The chief clerk shall give bond to the United States in such amount, in such form, and with such security as shall be ap- proved by the Secretary of the Treasury. Contingent fund Sec. 142. The said clerk shall have authority when he has given bond as provided in the preceding section, to disburse, under the di- rection of the court, the contingent fund which may from time to time be appropriated for its use; and his accounts shall be settled by the proper accounting officers of the Treasury in the same way as the accounts of other disbursing agents of the Government are set- tled. Reports to Congress; copies for departments, etc. Sec. 143. On the first day of every regular session of Congress, the clerk of the Court of Claims shall transmit to Congress a full and complete statement of all the judgments rendered by the court during the previous year, stating the amounts thereof and the par- ties in whose favor they were rendered, together with a brief synop- sis of the nature of the claims upon which they were rendered. At the end of every term of the court he shall transmit a copy of its de- cisions to the heads of departments; to the Solicitor, the Comptrol- ler, and the Auditors of the Treasury; to the Commissioner of the General Land Office and of Indian Affairs; to the chiefs of bureaus, 654 APPENDIX and to other officers charged with the adjustment of claims against the United States. Members of Congress not to practice in the court Sec. 144. Whoever, being elected or appointed a Senator, Member of, or Delegate to Congress, or a Resident Commissioner, shall, after his election or appointment, and either before or after he has quali- fied, and during his continuance in office, practice in the Court of Claims, shall be fined not more than ten thousand dollars and im- prisoned not more than two years ; and shall, moreover, thereafter be incapable of holding any office of honor, trust, or profit under the Government of the United States. Jurisdiction Sec. 145. The Court of Claims shall have jurisdiction to hear and determine the following matters: Claims against the United States First. All claims (except for pensions) founded upon the Consti- tution of the United States or any law of Congress, upon any regula- tion of an Executive Department, upon any contract, express or im- plied, with the Government of the United States, or for damages, liq- uidated or unliquidated, in cases not sounding in tort, in respect of which claims the party would be entitled to redress against the Unit- ed States either in a court of law, equity, or admiralty if the United States were suable: Provided, however, That nothing in this section shall be construed as giving to the said court jurisdiction to hear and determine claims growing out of the late civil war, and common- ly known as "war claims," or to hear and determine other claims which, prior to March third, eighteen hundred and eighty-seven, had been rejected or reported on adversely by any court, department, or commission authorized to hear and determine the same. Set-offs Second. All set-offs, counterclaims, claims for damages, whether liquidated or unliquidated, or other demands whatsoever on the part of the Government of the United States against any claimant against the Government in said court: Provided, That no suit against the Government of the United States, brought by any officer of the Unit- ed States to recover fees for services alleged to have been performed for the United States, shall be allowed under this chapter until an account for said fees shall have been rendered and finally acted upon as required by law, unless the proper accounting officer of the Treas- ury fails to act finally thereon within six months after the account is received in said office. Disbnrsing officers Third. The claim of any paymaster, quartermaster, commissary of subsistence, or other disbursing officer of the United States, or THE JUDICIAL CODE 655 of his administrators or executors, for relief from responsibility on account of loss by capture or otherwise, while in the line of his duty, of Government funds, vouchers, records, or papers in his charge, and for which such officer was and is held responsible. Judgments for set-off or counterclaims; how enforced Sec. 146. Upon the trial of any cause in which any set-off, coun- terclaim, claim for damages, or other demand is set up on the part of the Government against any person making claim against the Government in said court, the court shall hear and determine such claim or demand both for and against the Government and claimant; and if upon the whole case it finds that the claimant is indebted to the Government it shall render judgment to that effect, and such judgment shall be final, with the right of appeal, as in other cases provided for by law. Any transcript of such judgment, filed in the clerk's office of any district court, shall be entered upon the records thereof, and shall thereby become and be a judgment of such court and be enforced as other judgments in such court are enforced. Decree on accounts of disbursing officers Sec. 147. Whenever the Court of Claims ascertains the facts of any loss by any paymaster, quartermaster, commissary of subsist- ence, or other disbursing officer, in the cases hereinbefore provided, to have been without fault or negligence on the part of such officer, it shall make a decree setting forth the amount thereof, and upon such decree the proper accounting officers of the Treasury shall allow to such officer the amount so decreed as a credit in the settlement of his accounts. Claims referred by departments Sec. 148. When any claim or matter is pending in any of the ex- ecutive departments which involves controverted questions of fact or law, the head of such department may transmit the same, with the vouchers, papers, documents and proofs pertaining thereto, to the Court of Claims and the same shall be there proceeded in under such rules as the court may adopt. When the facts and conclusions of law shall have been found, the court shall report its findings to the de- partment by which it was transmitted for its guidance and action: Provided, however, That if it shall have been transmitted with the consent of the claimant, or if it shall appear to the satisfaction of the court upon the facts established, that under existing laws or the provisions of this chapter it has jurisdiction to render judgment or decree thereon, it shall proceed to do so, in the latter case giving to either party such further opportunity for hearing as in its judgment justice shall require, and shall report its findings therein to the de- partment by which the same was referred to said court The Secre- tary of the Treasury may, upon the certificate of any auditor, or of the Comptroller of the Treasury, direct any claim or matter, of 656 APPENDIX which, by reason of the subject matter or character, the said court might under existing laws, take jurisdiction on the voluntary action of the claimant, to be transmitted, with all the vouchers, papers, documents and proofs pertaining 1 thereto, to the said court for trial and adjudication. Procedure in cases transmitted by departments Sec. 149. All cases transmitted by the head of any department, or upon the certificate of any auditor, or of the Comptroller of the Treasury, according to the provisions of the preceding section, shall be proceeded in as other cases pending in the Court of Claims, and shall, in all respects, be subject to the same rules and regulations. Judgments in cases transmitted by departments; how paid Sec. 150. The amount of any final judgment or decree rendered in favor of the claimant, in any case transmitted to the Court of Claims under the two preceding sections, shall be paid out of any specific appropriation applicable to the case, if any such there be; and where no such appropriation exists, the judgment or decree shall be paid in the same manner as other judgments of the said court. Either House of Congress may refer certain claims to court Sec. 151. Whenever any bill, except for a pension, is pending in either House of Congress providing for the payment of a claim against the United States, legal or equitable, or for a grant, gift, or bounty to any person, the House in which such bill is pending may, for the investigation and determination of facts, refer the same to the Court of Claims, which shall proceed with the same in accord- ance with such rules as it may adopt and report to such House the facts in the case and the amount, where the same can be liquidated, including any facts bearing upon the question whether there has been delay or laches in presenting such claim or applying for such grant, gift, or bounty, and any facts bearing upon the question whether the bar of any statute of limitation should be removed or which shall be claimed to excuse the claimant for not having resort- ed to any established legal remedy, together with such conclusions as shall be sufficient to inform Congress of the nature and character of the demand, either as a claim, legal or equitable, or as a gratuity against the United States, and the amount, if any, legally or equi- tably due from the United States to the claimant: Provided, how- ever, That if it shall appear to the satisfaction of the court upon the facts established, that under existing laws or the provisions of this chapter, the subject matter of the bill is such that it has jurisdic- tion to render judgment or decree thereon, it shall proceed to do so, giving to either party such further opportunity for hearing as in its judgment justice shall require, and it shall report its proceedings therein to the House of Congress by which the same was referred to said court. THE JUDICIAL CODE 657 Costs may be allowed prevailing party Sec. 152. If the Government of the United States shall put in Is- sue the right of the plaintiff to recover, the court may, in its dis- cretion, allow costs to the prevailing party from the time of joining such issue. Such costs, however, shall include only what is actually incurred for witnesses, and for summoning the same, and fees paid to the clerk of the court. Claims growing ont of treaties not cognizable therein Sec. 153. The jurisdiction of the said court shall not extend to any claim against the Government not pending therein on December first, eighteen hundred and sixty-two, growing out of or dependent on any treaty stipulation entered into with foreign nations or with the Indian tribes. Claims pending in other courts Sec. 154. No person shall file or prosecute in the Court of Claims, or in the Supreme Court on appeal therefrom, any claim for or in respect to which he or any assignee of his has pending in any other court any suit or process against any person who, at the time when the cause of action alleged in such suit or process arose, was, in respect thereto, acting or professing to act, mediately or immediate- ly, under the authority of the United States. Aliens Sec. 155. Aliens who are citizens or subjects of any government which accords to citizens of the United States the right to prosecute claims against such government in its courts, shall have the privilege of prosecuting claims against the United States in the Court of Claims, whereof such court, by reason of their subject matter and character, might take jurisdiction. All claims to be filed within six years; exceptions Sec. 156. Every claim against the United States cognizable by the Court of Claims, shall be forever barred unless the petition set- ting forth a statement thereof is filed in the court, or transmitted to it by the Secretary of the Senate or the Clerk of the House of Rep- resentatives, as provided by law, within six years after the claim first accrues: Provided, That the claims of married women, first ac- crued during marriage, of persons under the age of twenty-one years, first accrued during minority, and of idiots, lunatics, insane persons, and persons beyond the seas at the time the claim accrued, entitled to the claim, shall not be barred if the petition be filed in the court or transmitted, as aforesaid, within three years after the disability has ceased; but no other disability than those enumerated shall pre- vent any claim from being barred, nor shall any of the said disabi ities operate cumulatively. Rules of practice; may punish contempts Sec. 157. The said court shall have power to establish rules for Its government and for the regulation of practice therein, and it may HUGHES FED.PK.(2o ED.) 42 658 APPENDIX punish for contempt in the manner prescribed by the common law, may appoint commissioners, and may exercise such powers as are necessary to carry into effect the powers granted to it by law. Oaths and acknowledgments Sec. 158. The judges and clerks of said court may administer oaths and affirmations, take acknowledgments of instruments in writing, and give certificates of the same. Petitions and verification Sec. 159. The claimant shall in all cases fully set forth in his peti- tion the claim, the action thereon in Congress or by any of the de- partments, if such action has been had, what persons are owners thereof or interested therein, when and upon what consideration such persons became so interested; that no assignment or transfer of said claim or of any part thereof or interest therein has been made, except as stated in the petition ; that said claimant is justly entitled to the amount therein claimed from the United States after allowing all just credits and offsets; that the claimant and, where the claim has been assigned, the original and every prior owner thereof, if a citizen, has at all times borne true allegiance to the Government of the United States, and, whether a citizen or not, has not in any way voluntarily aided, abetted, or given encouragement to rebellion against the said Government, and that he believes the facts as stated in the said petition to be true. The said petition shall be verified by the affidavit of the claimant, his agent or attorney. Petition dismissed, when Sec. 160. The said allegations as to true allegiance and voluntary aiding, abetting, or giving encouragement to rebellion against the Government may be traversed by the Government, and if on the trial such issues shall be decided against the claimant, nis petition shall be dismissed. Bnrden of proof and evidence as to loyalty Sec. 161. Whenever it is material in any claim to ascertain wheth- er any person did or did not give any aid or comfort to forces or government of the late Confederate States during the Civil War, the claimant asserting the loyalty of any such person to the United States during such Civil War shall be required to prove affirmatively that such person did, during said Civil War, consistently adhere to the United States and did give no aid or comfort to persons engaged in said Confederate service in said Civil War. Claims for proceeds arising from sales of abandoned property Sec. 162. The Court of Claims shall have jurisdiction to hear and determine the claims of those whose property was taken subsequent to June the first, eighteen, hundred and sixty-five, under the provi- sions of the Act of Congress approved March twelfth, eighteen hun- THE JUDICIAL CODE 659 dred and sixty-three, entitled "An Act to provide for the collection of abandoned property and for the prevention of frauds in insur- rectionary districts within the United States," and Acts amendatory thereof where the property so taken was sold and the net proceeds thereof were placed in the Treasury of the United States; and the Secretary of the Treasury shall return said net proceeds to the own- ers thereof, on the judgment of said court, and full jurisdiction is given to said court to adjudge said claims, any statutes of limita- tions to the contrary notwithstanding. Commissioners to take testimony Sec. 163. The Court of Claims shall have power to appoint com- missioners 10 take testimony to be used in the investigation of claims which come before it, to prescribe the fees which they shall receive for their services, and to issue commissions for the taking of such testimony, whether taken at the instance of the claimant or of the United States. Power to call upon departments for information Sec. 164. The said court shall have power to call upon any of the departments for any information or papers it may deem necessary, and shall have the use of all recorded and printed reports made by the committees of each House of Congress, when deemed necessary in the prosecution of its business. But the head of any department may refuse and omit to comply with any call for information or pa- pers when, in his opinion, such compliance would be injurious to the public interest. When testimony not to be taken Sec. 165. When it appears to the court in any case that the facts set forth in the petition of the claimant do not furnish any ground for relief, it shall not authorize the taking of any testimony therein. Examination of claimant Sec. 166. The court may, at the instance of the attorney or solici- tor appearing in behalf of the United States, make an order in any case pending therein, directing any claimant in such case to appear, upon reasonable notice, before any commissioner of the court and be examined on oath touching any or all matters pertaining to said claim. Such examination shall be reduced to writing by the said commissioner, and be returned to and filed in the court, and may, at the discretion of the attorney or solicitor of the United States ap- pearing in the case, be read and used as evidence on the trial there- of. And if any claimant, after such order is made and due and rea- sonable notice thereof is given to him, fails to appear, or refuses to testify or answer fully as to all matters within his knowledge mate- rial to the issue, the court may, in its discretion, order that the said cause shall not be brought forward for trial until he shall have fully complied with the order of the court in the premises. 660 APPENDIX Testimony; where taken Sec. 167. The testimony in cases pending before the Court of Claims shall be taken in the county where the witness resides, when the same can be conveniently done. Witnesses before commissioners Sec. 168. The Court of Claims may issue subpoenas to require the attendance of witnesses in order to be examined before any person commissioned to take testimony therein. Such subpoenas shall have the same force as if issued from a district court, and compliance therewith shall be compelled under such rules and orders as the court shall establish. Cr os s-examinations Sec. 169. In taking testimony to be used in support of any claim, opportunity shall be given to the United States to file interrogatories, or by attorney to examine witnesses, under such regulations as said court shall prescribe; and like opportunity shall be afforded the claimant, in cases where testimony is taken on behalf of the United States, under like regulations. Witnesses; how sworn Sec. 170. The commissioner taking testimony to be used in the Court of Claims shall administer an oath or affirmation to the wit- nesses brought before him for examination. Fees of commissioners, by whom paid Sec. 171. When testimony is taken for the claimant, the fees of the commissioner before whom it is taken, and the cost of the com- mission and notice, shall be paid by such claimant; and when it is taken at the instance of the Government, such fees shall be paid out of the contingent fund provided for the Court of Claims, or other appropriation made by Congress for that purpose. Claims forfeited for fraud Sec. 172. Any person who corruptly practices or attempts to prac- tice any fraud against the United States in the proof, statement, es- tablishment, or allowance of any claim or of any part of any claim against the United States shall, ipso facto, forfeit the same to the Government; and it shall be the duty of the Court of Claims, in such cases, to find specifically that such fraud was practiced or at- tempted to be practiced, and thereupon to give judgment that such claim is forfeited to the Government, and that the claimant be for- ever barred from prosecuting the same. Claims under act of June 16, 1874 Sec. 173. No claim shall be allowed by the accounting officers un- der the provisions of the Act of Congress approved June sixteenth, eighteen hundred and seventy-four, or by the Court of Claims, or by Congress, to any person where such claimant, or those under whom THE JUDICIAL CODE 661 he claims, shall willfully, knowingly, and with intent to defraud the United States, have claimed more than was justly due in respect of such claim, or presented any false evidence to Congress, or to any department or court, in support thereof. New trial on motion of claimant Sec. 174. "When judgment is rendered against any claimant, the court may grant a new trial for any reason which, by the rules of common law or chancery in suits between individuals, would furnish sufficient ground for granting a new trial. New trial on motion of United States Sec. 175. The Court of Claims, at any time while any claim is pending before it, or on appeal from it, or within two years next after the final disposition of such claim, may, on motion, on behalf of the United States, grant a new trial and stay the payment of any judgment therein, upon such evidence, cumulative or otherwise, as shall satisfy the court that any fraud, wrong, or injustice in the premises has been done to the United States; but until an order is made staying the payment of a judgment, the same shall be payable and paid as now provided by law. Cost of printing record Sec. 176. There shall be taxed against the losing party in each and every cause pending in the Court of Claims the cost of printing the record in such case, which shall be collected, except when the judgment is against the United States, by the clerk of said court and paid into the Treasury of the United States. No interest on claims Sec. 177. No interest shall be allowed on any claim up to the time of the rendition of judgment thereon by the Court of Claims, unless upon a contract expressly stipulating for the payment of interest. Effect of payment of judgment Sec. 178. The payment of the amount due by any judgment of the Court of Claims, and of any interest thereon allowed by law, as pro- vided by law, shall be a full discharge to the United States of all claim and demand touching any of the matters involved in the con- troversy. Final judgments a bar Sec. 179. Any final judgment against the claimant on any claim prosecuted as provided in this chapter shall forever bar any further claim or demand against the United States arising out of the matters involved in the controversy. Debtors to the United States may have amount due ascer- tained Sec 180. Whenever any person shall present his petition to the Court of Claims alleging that he is or has been indebted to the Unit- 62 APPENDIX ed States as an officer or agent thereof, or by virtue of any contract therewith, or that he is the guarantor, or surety, or personal repre- sentative of any officer or agent or contractor so indebted, or that he or the person for whom he is such surety, guarantor, or personal rep- resentative has held any office or agency under the United States, or entered into any contract therewith, under which it may be or has been claimed that an indebtedness to the United States had arisen and exists, and that he or the person he represents has applied to the proper department of the Government requesting that the account of such office, agency, or indebtedness may be adjusted and settled, and that three years have elapsed from the date of such application, and said account still remains unsettled and unadjusted, and that no suit upon the same has been brought by the United States, said court shall, due notice first being given to the head of said department and to the Attorney General of the United States, proceed to hear the parties and to ascertain the amount, if any, due the United States on said account. The Attorney General shall represent the United States at the hearing of said cause. The court may postpone the same from, time to time whenever justice shall require. The judg- ment of said court or of the Supreme Court of the United States, to which an appeal shall lie, as in other cases, as to the amount due, shall be binding and conclusive upon the parties. The payment of such amount so found due by the court shall discharge such obliga- tion. An action shall accrue to the United States against such prin- cipal, or surety, or representative to recover the amount so found due, which may be brought at any time within three years after the final judgment of said court ; and unless suit shall be brought with- in said time, such claim and the claim on the original indebtedness shall be forever barred. The provisions of section one hundred and sixty-six shall apply to cases under this section. Appeals Sec. 181. The plaintiff or the United States, in any suit brought under the provision of the section last preceding, shall have the .same right of appeal as is conferred under sections two hundred and forty-two and two hundred and forty-three; and such right shall be .exercised only within the time and in the manner therein prescribed. Appeals in Indian cases Sec. 182. In any case brought in the Court of Claims under any Act of Congress by which that court is authorized to render a judg- ment or decree against the United States, or against any Indian -tribe or any Indians, or against any fund held in trust by the Unit- ed States for any Indian tribe or for any Indians, the claimant, or the United States, or the tribe of Indians, or other party in interest shall have the same right of appeal as is conferred under sections two hundred and forty-two and two hundred and forty-three ; and such right shall be exercised only within the time and in the manner .therein prescribed. THE JUDICIAL CODE 663 Attorney General's report to Congress Sec. 183. The Attorney-General shall report to Congress, at the beginning of each regular session, the suits under section one hun- dred and eighty, in which a final judgment or decree has been ren- dered, giving the date of each and a statement of the costs taxed in each case. Loyalty a jnrisdictional fact in certain cases Sec. 184. In any case of a claim for supplies or stores taken by or furnished to any part of the military or naval forces of the Unit- ed States for their use during the late Civil War, the petition shall aver that the person who furnished such supplies or stores, or from whom such supplies or stores were taken, did not give any aid or comfort to said rebellion, but was throughout that war loyal to the Government of the United States, and the fact of such loyalty shall be a jurisdictional fact; and unless the said court shall, on a pre- liminary inquiry, find that the person who furnished such supplies or stores, or from whom the same were taken as aforesaid, was loyal to the Government of the United States throughout said war, the court shall not have jurisdiction of such cause, and the same shall, without further proceedings, be dismissed. Attorney General to appear for the defence Sec. 185. The Attorney-General, or his assistants under his direc- tion, shall appear for the defense and protection of the interests of the United States in all cases which may be transmitted to the Court of Claims under the provisions of this chapter, with the same power to interpose counter claims, offsets, defenses for fraud practiced or attempted to be practiced by claimants, and other defenses, in like manner as he is required to defend the United States in said court. Persons not to be excluded as witnesses on account of color or because of interest; plaintiff may be witness for Govern- ment Sec. 186. No person shall be excluded as a witness in the Court of Claims on account of color, or because he or she is a party to or in- terested in the cause or proceeding; and any plaintiff or party in interest may be examined as a witness on the part of the Govern- ment. (As amended February 5, 1912, 37 Stat 61.) Reports of court to Congress Sec. 187. Reports of the Court of Claims to Congress, under sec- tions one hundred and forty-eight and one hundred and fifty-one, if not finally acted upon during the session at which they are re- ported, shall be continued from session to session and from Congress to Congress until the same shall be finally acted upon. 664 APPENDIX CHAPTER EIGHT THE COURT OF CUSTOMS APPEALS Sec. 188. Court of Customs Appeals; ap- pointment and salary of judg- es; quorum; circuit and dis- trict judges may act in place of judge disqualified, etc. 189. Court to be always open for business; terms may be held in any circuit; when expenses of judges to be paid. 190. Marshal of the court; appoint- ment, salary, and duties. 191. Clerk of the court; appoint- ment, salary, and duties. 192. Assistant clerk, stenographic clerks, and reporter; appoint- ment, salary, and duties. 193. Rooms for holding court to be provided; bailiffs and mes- sengers. 194. To be a court of record; to pre- scribe form and style of seal, Sec. and establish rules and regu- lations; may affirm, modify, or reverse and remand case, etc. 195. Final decisions of Board of General Appraisers to be re- viewed only by Customs Court. 196. Other courts deprived of juris- diction in customs cases; pending cases excepted. 197. Transfer to Customs Court of pending cases; completion of testimony. 198. Appeals from Board of General Appraisers; time within which to be taken; record to be transmitted to Customs Court. 199. Records filed in Customs Court to be at once placed on calen- dar; calendar to be called ev- ery sixty days. Court of Customs Appeals; appointment and salary of judges; quorum; circuit and district judges may act in place of judge disqualified, etc. Sec. 188. There shall be a United States Court of Customs Ap- peals, which shall consist of a presiding judge and four associate judges, each of whom shall be appointed by the President, by and with the advice and consent of the Senate, and shall receive a salary of seven thousand dollars a year. The presiding judge shall be so designated in the order of appointment and in the commission is- sued to him by the President; and the associate judges shall have precedence according to the date of their commissions. Any three members of said court shall constitute a quorum, and the concur- rence of three members shall be necessary to any decision thereof. In case of a vacancy or of the temporary inability or disqualification, for any reason, of one or two of the judges of said court, the Presi- dent may, upon the request of the presiding judge of said court, des- ignate any qualified United States circuit or district judge or judges to act in his or their place; and such circuit or district judges shall be duly qualified to so act. Court to be always open for business; terms may be held in any circuit; when expenses of judges to be paid Sec. 189. The said Court of Customs Appeals shall always be open for the transaction of business, and sessions thereof may, in the dis- cretion of the court, be held in the several judicial circuits, and at THE JUDICIAL CODE 6G5 such places as said court may from time to time designate. Any judge who, in pursuance of the provisions of this chapter, shall at- tend a session of said court at any place other than the city of Washington, shall be paid, upon his written and itemized certificate, by the marshal of the district in which the court shall be held, his actual and necessary expenses incurred for travel and attendance, and the actual and necessary expenses of one stenographic clerk who may accompany him; and such payments shall be allowed the mar- shal in the settlement of his accounts with the United States. Marshal of the court; appointment, salary, and duties Sec. 190. Said court shall have the services of a marshal, with the same duties and powers, under the regulations of the court, as are now provided for the marshal of the Supreme Court of the United States, so far as the same may be applicable. Said services within the District of Columbia shall be performed by a marshal to be ap- pointed by and to hold office during the pleasure of the court, who shall receive a salary of three thousand dollars per annum. Said services outside of the District of Columbia shall be performed by the United States marshals in and for the districts where sessions of said court may be held ; and to this end said marshals shall be the marshals of said court The marshal of said court, for the District of Columbia, is authorized to purchase, under the direction of the presiding judge, such books, periodicals, and stationery, as may be necessary for the use of said court; and such expenditures shall be allowed and paid by the Secretary of the Treasury upon claim duly made and approved by said presiding judge. Clerk of the court; appointment, salary, and duties Sec. 191. The court shall appoint a clerk, whose office shall be in the city of Washington, District of Columbia, and who shall perform and exercise the same duties and powers in regard to all matters within the jurisdiction of said court as are now exercised and per- formed by the clerk of the Supreme Court of the United States, so far as the same may be applicable. The salary of the clerk shall be three thousand five hundred dollars per annum, which sum shall be in full payment for all service rendered by such clerk ; and all fees of any kind whatever, and all costs shall be by him turned into the United States Treasury. Said clerk shall not be appointed by the court or any judge thereof as a commissioner, master, receiver, or referee. The costs and fees in the said court shall be fixed and es- tablished by said court in a table of fees to be adopted and approved by the Supreme Court of the United States within four mouths after the organization of said court: Provided, That the costs and fees so fixed shall not, with respect to any item, exceed the costs and fees charged in the Supreme Court of the United States; and the same shall be expended, accounted for, and paid over to the Treasury of the United States. 666 APPENDIX Assistant clerk, stenographic clerks, and reporter; appoint- ment, salary, and duties Sec. 192. In addition to the clerk, the court may appoint an as- sistant clerk at a salary of two thousand dollars per annum, five stenographic clerks at a salary of one thousand six hundred dollars per annum each, one stenographic reporter at a salary of two thou- sand five hundred dollars per annum, and a messenger at a salary of eight hundred and forty dollars per annum, all payable in equal monthly installments, and all of whom, including the clerk, shall hold office during the pleasure of and perform such duties as are assigned them by the court. Said reporter shall prepare and trans- mit to the Secretary of the Treasury once a week in time for publi- cation in the Treasury Decisions copies of all decisions rendered to that date by said court, and prepare and transmit, under the direc- tion of said court, at least once a year, reports of said decisions ren- dered to that date, constituting a volume, which shall be printed by the Treasury Department in such numbers and distributed or sold in such manner as the Secretary of the Treasury shall direct Rooms for holding court to be provided; bailiffs and messen- gers Sec. 193. The marshal of said court for the District of Columbia and the marshals of the several districts in which said Court of Customs Appeals may be held shall, under the direction of the At- torney General, and with his approval, provide such rooms in the public buildings of the United States as may be necessary for said court: Provided, That in case proper rooms can not be provided in such buildings, then the said marshals, with the approval of the At- torney-General, may, from time to time, lease such rooms as may be necessary for said court. The bailiffs and messengers of said court shall be allowed the same compensation for their respective services as are allowed for similar services in the existing district courts. In no case shall said marshals secure other rooms than those regularly occupied by existing district courts, or other public officers, except where such can not, by reason of actual occupancy or use, be occu- pied or used by said Court of Customs Appeals. To be a court of record; to prescribe form and style of seal, and establish rules and regulations; may affirm, modify, or reverse and remand case, etc. Sec. 194. The said Court of Customs Appeals shall be a court of record, with jurisdiction as in this chapter established and limited. It shall prescribe the form and style of its seal, and the form of its writs and other process and procedure, and exercise such powers con- ferred by law as may be conformable and necessary to the exercise of its jurisdiction. It shall have power to establish all rules and regulations for the conduct of the business of the court, and as may be needful for the uniformity of decisions within its jurisdiction as conferred by law. It shall have power to review any decision or matter within its jurisdiction, and may affirm, modify, or reverse the THE JUDICIAL CODE 667 same and remand the case with such orders as may seem to It proper in the premises, which shall be executed accordingly. Final decisions of Board of General Appraisers to be reviewed only by Customs Court Sec. 195. The Court of Customs Appeals established by this chap- ter shall exercise exclusive appellate jurisdiction to review by ap- peal, as herein provided, final decisions by a Board of General Ap- praisers in all cases as to the construction of the law and the facts respecting the classification of merchandise and the rate of duty im- posed thereon under such classification, and the fees and charges con- nected therewith, and all appealable questions as to the jurisdiction of said board, and all appealable questions as to the laws and regula- tions governing the collection of the customs revenues; and the judg- ments and decrees of said Court of Customs Appeals shall be final in all such cases. Other conrts deprived of jurisdiction in customs cases; pend- ing cases excepted Sec. 196. After the organization of said court, no appeal shall be taken or allowed from any Board of United States General Apprais- ers to any other court, and no appellate jurisdiction shall thereafter be exercised or allowed by any other courts in cases decided by said Board of United States General Appraisers ; but all appeals allowed by law from such Board of General Appraisers shall be subject to review only in the Court of Customs Appeals hereby established, according to the provisions of this chapter: Provided, That nothing in this chapter shall be deemed to deprive the Supreme Court of the United States of jurisdiction to hear and determine all customs cases which have heretofore been certified to said court from the United States circuit courts of appeals on applications for writs of certiorari or otherwise, nor to review by writ of certiorari any customs case heretofore decided or now pending and hereafter decided by any cir- cuit court of appeals, provided application for said writ be made within six months after August fifth, nineteen hundred and nine: Provided further, That all customs cases decided by a circuit or dis- trict court of the United States or a court of a Territory of the United States prior to said date above mentioned, and which have not been removed from said courts by appeal or writ of error, and all such cases theretofore submitted for decision in said courts and remaining undecided may be reviewed on appeal at the instance of either party by the United States Court of Customs Appeals, pro- vided such appeal be taken within one year from the date of the en- try of the order, judgment, or decrees sought to be reviewed. Transfer to Customs Court of pending cases; completion of testimony Sec. 197. Immediately upon the organization of the Court of Cus- toms Appeals, all cases within the jurisdiction of that court pending 668 APPENDIX and not submitted for decision in any of the United States circuit courts of appeals, United States circuit, territorial or district courts, shall, with the record and samples therein, be certified by said courts to said Court of Customs Appeals for further proceedings in accord- ance herewith: Provided, That where orders for the taking of fur- ther testimony before a referee have been made in any of such cases, the taking of such testimony shall be completed before such certifi- cation. Appeals from Board of General Appraisers; time within which to be taken; record to be transmitted to Customs Court Sec. 198. If the importer, owner, consignee, or agent of any im- ported merchandise, or the collector or Secretary of the Treasury, shall be dissatisfied with the decision of the Board of General Ap- praisers as to the construction of the law and the facts respecting the classification of such merchandise and the rate of duty imposed thereon under such classification, or with any other appealable deci- sion, of said board, they, or either of them, may, within sixty days next after the entry of such decree or judgment, and not afterwards, apply to the Court of Customs Appeals for a review of the questions of law and fact involved in such decision: Provided, That in Alaska and in the insular and other outside possessions of the United States ninety days shall be allowed for making such application to the Court of Customs Appeals. Such application shall be made by filing in the office of the clerk of said court a concise statement of errors of law and fact complained of; and a copy of such statement shall be served on the collector, or on the importer, owner, consignee, or agent, as the case may be. Thereupon the court shall immediately order the Board of General Appraisers to transmit to said court the record and evidence taken by them, together with the certified statement of the facts involved in the case and their decision thereon; and all the evidence taken by and before said board shall be compe- tent evidence before said Court of Customs Appeals. The decision of said Court of Customs Appeals shall be final, and such cause shall be remanded to said Board of General Appraisers for further pro- ceedings to be taken in pursuance of such determination. Records filed in Customs Court to be at once placed on cal- endar; calendar to be called every sixty days Sec. 199. Immediately upon receipt of any record transmitted to said court for determination the clerk thereof shall place the same upon the calendar for hearing and submission; and such calendar shall be called and all cases thereupon submitted, except for good cause shown, at least once every sixty days: Provided, That such calendar need not be called during the months of July and August of any year. TOE JUDICIAL CODE 669 CHAPTER NINE THE COMMERCE COURT [This court Is abolished by the urgent Deficiency Appropriation Bill of October 22, 1913. But the chapter is retained because it is necessary for a proper understanding of the transfer of Jurisdiction. The portion of the act abolishing it is printed post, p. 701.1 Sec. 200. Commerce Court created; judg- es of, appointment and desig- nation; expense allowance to judges. 201. Additional circuit judges; ap- pointment and assignment. 202. Officers of the court; clerk, marshal, etc.; salaries, etc. 203. Court to be always open for business; sessions of, to be held in Washington and else- where. 204. Marshals to provide rooms for holding court outside of Washington. 205. Assignment of judges to other duty; vacancies, how filled. 206. Powers of court and judges; writs, process, procedure, etc. 207. Jurisdiction of the court. 208. Suits to enjoin, etc., orders of Interstate Commerce Commis- Sec. sion to be against United States; restraining orders, when granted without notice. 209. Jurisdiction of the court, how invoked; practice and proce- dure. 210. Final judgments and decrees re- viewable in Supreme Court. 211. Suits to be against United States; when United States may intervene. 212. Attorney General to control all cases; Interstate Commerce Commission may appear as of right; parties interested may intervene, etc. 213. Complainants may appear and be made parties to case. 214. Pending cases to be transferred to Commerce Court; excep- tion; status of transferred cases. Commerce Court created; judges of, appointment and designa- tion; expense allowance to judges Sec. 200. There shall be a court of the United States, to be known as the Commerce Court, which shall be a court of record, and shall have a seal of such form and style as the court may prescribe. The said court shall be composed of five judges, to be from time to time designated and assigned thereto by the Chief Justice of the United States, from among the circuit judges of the United States, for the period of five years, except that in the first instance the court shall be composed of the five additional circuit judges re- ferred to in the next succeeding section, who shall be designated by the President to serve for one, two, three, four, and five years, re- spectively, in order that the period of designation of one of the said judges shall expire in each year thereafter. In case of the death, resignation, or termination of assignment of any judge so designated, the Chief Justice shall designate a circuit judge to fill the vacancy so caused and to serve during the unexpired period for which the original designation was made. After the year nineteen hundred and fourteen no circuit judge shall be redesignated to serve in the Commerce Court until the expiration of at least one year after the 670 APPENDIX expiration of the period of his last previous designation. The judge first designated for the five-year period shall be the presiding judge of said court, and thereafter the judge senior in designation shall be the presiding judge. The associate judges shall have precedence and shall succeed to the place and powers of the presiding judge whenever he may be absent or incapable of acting in the order of the date of their designations. Four of said judges shall constitute a quorum, and at least a majority of the court shall concur in all decisions. Each of the judges during the period of his service in the Commerce Court shall, on account of the regular sessions of the court being held in the city of Washington, receive in addition to his salary as circuit judge an expense allowance at the rate of one thousand five hundred dollars per annum. Additional circuit judges; appointment and assignment Sec. 201. The five additional circuit judges authorized by the Act to create a Commerce Court, and for other purposes, approved June eighteenth, nineteen hundred and ten, shall hold office during good behavior, and from time to time shall be designated and assigned by the Chief Justice of the United States for service in the district court of any district, or the circuit court of appeals for any circuit, or in the Commerce Court, and when so designated and assigned for service in a district court or circuit court of appeals shall have the powers and jurisdiction in this Act conferred upon a circuit judge in his circuit. Officers of the court; clerk, marshal, etc.; salaries, etc. Sec. 202. The court shall also have a clerk and a marshal, with the same duties and powers, so far as they may be appropriate and are not altered by rule of the court, as are now possessed by the clerk and marshal, respectively, of the Supreme Court of the United States. The offices of the clerk and marshal of the court shall be in the city of Washington, in the District of Columbia. The judges of the court shall appoint the clerk and marshal, and may also appoint, if they find it necessary, a deputy clerk and deputy marshal ; and such clerk, marshal, deputy clerk, and deputy marshal, shall hold office during the pleasure of the court. The salary of the clerk shall be four thousand dollars per annum; the salary of the marshal three thousand dollars per annum ; the salary of the deputy clerk two thousand five hundred dollars per annum; and the salary of the deputy marshal two thousand five hundred dollars per annum. The said clerk and marshal may, with the approval of the court, employ all requisite assistance. The costs and fees in said court shall be established by the court in a table thereof, approved by the Supreme Court of the United States, within four months after the organiza- tion of the court; but such costs and fees shall in no case exceed those charged in the Supreme Court of the United States, and shall be accounted for and paid into the Treasury of the United States. THE JUDICIAL CODE 671 Court to be always open for business; sessions of, to be held in Washington and elsewhere Sec. 203. The Commerce Court shall always be open for the trans- action of business. Its regular sessions shall be held In the city of Washington, in the District of Columbia ; but the powers of the court or of any judge thereof, or of the clerk, marshal, deputy clerk, or deputy marshal, may be exercised anywhere in the United States; and for expedition of the work of the court and the avoidance of un- due expense or inconvenience to suitors the court shall hold sessions in different parts of the United States as may be found desirable. The actual and necessary expenses of the judges, clerk, marshal, dep- uty clerk, and deputy marshal of the court incurred for travel and attendance elsewhere than in the city of Washington shall be paid upon the written and itemized certificate of such judge, clerk, mar- shal, deputy clerk, or deputy marshal, by the marshal of the court, and shall be allowed to him in the settlement of his accounts with the United States. Marshals to provide rooms for holding court outside of Wash- ington Sec. 204. The United States marshals of the several districts out- side of the city of Washington in which the Commerce Court may hold its sessions shall provide, under the direction and with the ap- proval of the Attorney General, such rooms in the public buildings of the United States as may be necessary for the court's use; but in case proper rooms can not be provided in such public buildings, said marshals, with the approval of the Attorney General, may then lease from time to time other necessary rooms for the court. Assignment of judges to other duty; vacancies, how filled Sec. 205. If, at any time, the business of the Commerce Court does not require the services of all the judges, the Chief Justice of the United States may, by writing, signed by him and filed in the Depart- ment of Justice, terminate the assignment of any of the judges or temporarily assign him for service in any district court or circuit court of appeals. In case of illness or other disability of any judge assigned to the Commerce Court the Chief Justice of the United States may assign any other circuit judge of the United States to act in his place, and may terminate such assignment when the exigency therefor shall cease; and any circuit judge so assigned to act in place of such judge shall, during his assignment, exercise all the powers and perform all the functions of such judge. Powers of court and judges; writs, process, procedure, etc. Sec. 206. In all cases within its jurisdiction the Commerce Court, and each of the judges assigned thereto, shall, respectively, have and may exercise any and all of the powers of a district court of the United States and of the judges of said court, respectively, so far as 672 APPENDIX the same may be appropriate to the effective exercise of the Jurisdic- tion hereby conferred. The Commerce Court may issue all writs and process appropriate to the full exercise of its jurisdiction and pow- ers and may prescribe the form thereof. It may also, from time to time, establish such rules and regulations concerning pleading, prac- tice, or procedure in cases or matters within its jurisdiction as to the court shall seem wise and proper. Its orders, writs, and process may run, be served, and be returnable anywhere in the United States; and the marshal and deputy marshal of said court and also the United States marshals and deputy marshals in the several dis- tricts of the United States shall have like powers and be under like duties to act for and in behalf of said court as pertain to United States marshals and deputy marshals generally when acting under like conditions concerning suits or matters in the district courts of the United States. Jurisdiction of the court Sec. 207. The Commerce Court shall have the jurisdiction pos- sessed by circuit courts of the United States and the judges thereof immediately prior to June eighteenth, nineteen hundred and ten, over all cases of the following kinds: First. All cases for the enforcement, otherwise than by adjudica- tion and collection of a forfeiture or penalty or by infliction of crim- inal punishment, of any order of the Interstate Commerce Commis- sion other than for the payment of money. Second. Cases brought to enjoin, set aside, annul, or suspend In whole or in part any order of the Interstate Commerce Commission. Third. Such cases as by section three of the Act entitled "An Act to further regulate commerce with foreign nations and among the States," approved February nineteenth, nineteen hundred and three, are authorized to be maintained in a circuit court of the Unit- ed States. Fourth. All such mandamus proceedings as under the provisions of section twenty or section twenty-three of the Act entitled "An Act to regulate commerce," approved February fourth, eighteen hun- dred and eighty-seven, as amended, are authorized to be maintained in a circuit court of the United States. Nothing contained in this chapter shall be construed as enlarging the jurisdiction now possessed by the circuit courts of the United States or the judges thereof, that is hereby transferred to and vested in the Commerce Court. The jurisdiction of the Commerce Court over cases of the foregoing classes shall be exclusive; but this chapter shall not affect the juris- diction possessed by any circuit or district court of the United States over cases or proceedings of a kind not within the above-enumerated classes. THE JUDICIAL CODE 673 Suits to enjoin, etc., orders of Interstate Commerce Commis- sion to be against United States; restraining orders, when granted without notice Sec. 208. Suits to enjoin, set aside, annul, or suspend any order of the Interstate Commerce Commission shall be brought in the Commerce Court against the United States. The pendency of such suit shall not of itself stay or suspend the operation of the order of the Interstate Commerce Commission; but the Commerce Court, in its discretion, may restrain or suspend, in whole or in part, the opera- tion of the commission's order pending the final hearing and deter- mination of the suit. No order or injunction so restraining or sus- pending an order of the Interstate Commerce Commission shall be made by the Commerce Court otherwise than upon notice and after hearing, except that in cases where irreparable damage would other- wise ensue to the petitioner, said court, or a judge thereof may, on hearing after not less than three days' notice to the Interstate Com- merce Commission and the Attorney General, allow a temporary stay or suspension in whole or in part of the operation of the order of the Interstate Commerce Commission for not more than sixty days from the date of the order of such court or judge, pending applica- tion to the court for its order or injunction, in which case the said order shall contain a specific finding, based upon evidence submitted to the judge making the order and identified by reference thereto, that such irreparable damage would result to the petitioner and specifying the nature of the damage. The court may, at the time of hearing such application, upon a like finding, continue the temporary stay or suspension in whole or in part until its decision upon the application. Jurisdiction of the court, how invoked; practice and pro- cedure See. 209. The jurisdiction of the Commerce Court shall be invoked by filing in the office of the clerk of the court a written petition set- ting forth briefly and succinctly the facts constituting the petitioner's cause of action, and specifying the relief sought. A copy of such petition shall be forthwith served by the marshal or a deputy mar- shal of the Commerce Court or by the proper United States marshal or deputy marshal upon every defendant therein named, and when the United States is a party defendant, the service shall be made by filing a copy of said petition in the office of the Secretary of the In- terstate Commerce Commission and in the Department ef Justice. Within thirty days after the petition is served, unless that time is extended by order of the court or a judge thereof, an answer to the petition shall be filed in the clerk's office, and a copy thereof mailed to the petitioner's attorney, which answer shall briefly and categor- ically respond to the allegations of the petition. No replication need be filed to the answer, and objections to the sufficiency of the peti- tion or answer as not setting forth a cause of action or defense must HUGHES FED.PB.(2o ED.) 43 674 APPENDIX be taken at the final hearing or by motion to dismiss the petition based on said grounds, which motion may be made at any time before answer is filed. In case no answer shall be filed as provided herein the petitioner may apply to the court on notice for such relief as may be proper upon the facts alleged in the petition. The court may, by rule, prescribe the method of taking evidence in cases pending in said court; and may prescribe that the evidence be taken before a single judge of the court, with power to rule upon the admission of evi- dence. Except as may be otherwise provided in this chapter, or by rule of the court, the practice and procedure in the Commerce Court shall conform as nearly as may be to that in like cases in a district court of the United States. Final judgments and decrees reviewable in Supreme Court Sec. 210. A final judgment or decree of the Commerce Court may be reviewed by the Supreme Court of the United States if appeal to the Supreme Court be taken by an aggrieved party within sixty days after the entry of said final judgment or decree. Such appeal may be taken in like manner as appeals from a district court of the United States to the Supreme Court, and the Commerce Court may direct the original record to be transmitted on appeal instead of a tran- script thereof. The Supreme Court may affirm, reverse, or modify the final judgment or decree of the Commerce Court as the case may require. Appeal to the Supreme Court, however, shall in no case supersede or stay the judgment or decree of the Commerce Court appealed from, unless the Supreme Court or a justice thereof shall so direct; and appellant shall give bond in such form and of such amount as the Supreme Court, or the justice of that court allowing the stay, may require. An appeal may also be taken to the Supreme Court of the United States from an interlocutory order or decree of the Commerce Court granting or continuing an injunction restrain- ing the enforcement of an order of the Interstate Commerce Commis- sion, provided such appeal be taken within thirty days from the en- try of such order or decree. Appeals to the Supreme Court under this section shall have priority in hearing and determination over all other causes except criminal causes in that court. Suits to be against United States; when United States may intervene Sec. 211. All cases and proceedings in the Commerce Court which but for this chapter would be brought by or against the Interstate Commerce Commission, shall be brought by or against the United States, and the United States may intervene in any case or proceed- ing in the Commerce Court whenever, though it has not been made a party, public interests are involved. Attorney General to control all cases; Interstate Commerce Commission may appear as of right; parties interested may intervene, etc. Sec. 212. The Attorney General shall have charge and control of the interests of the Government in all cases and proceedings in the THE JUDICIAL CODE 675 Commerce Court, and in the Supreme Court of the United States upon appeal from the Commerce Court. If in his opinion the public interest requires it, he may retain and employ in the name of the United States, within the appropriations from time to time made by the Congress for such purposes, such special attorneys and counselors at law as he may think necessary to assist in the discharge of any of the duties incumbent upon him and his subordinate attorneys ; and the Attorney General shall stipulate with such special attorneys and counsel the amount of their compensation, which shall not be in excess of the sums appropriated therefor by Congress for such pur- poses, and shall have supervision of their action: Provided, That the Interstate Commerce Commission and any party or parties in interest to the proceeding before the commission, in which an order or re- quirement is made, may appear as parties thereto of their own mo- tion and as of right, and be represented by their counsel, in any suit wherein is involved the validity of such order or requirement or any part thereof, and the interest of such party; and the court where- in is pending such suit may make all such rules and orders as to such appearances and representations, the number of counsel, and all matters of procedure, and otherwise, as to subserve the ends of jus- tice and speed the determination of such suits: Provided further, That communities, associations, corporations, firms, and individuals who are interested in the controversy or question before the Inter- state Commerce Commission, or in any suit which may be brought by any one under the provisions of this chapter, or the Acts of which it is amendatory or which are amendatory of it, relating to action of the Interstate Commerce Commission, may intervene in said suit or proceedings at any time after the institution thereof; and the Attorney General shall not dispose of or discontinue said suit or pro- ceeding over the objection of such party or intervenor aforesaid, but said intervenor or intervenors may prosecute, defend, or continue said suit or proceeding unaffected by the action or non-action of the Attorney General therein. Complainants may appear and be made parties to case Sec. 213. Complainants before the Interstate Commerce Commis- sion interested in a case shall have the right to appear and be made parties to the case and be represented before the courts by counsel, under such regulations as are now permitted in similar circumstances under the rules and practice of equity courts of the United States. Pending cases to be transferred to Commerce Conrt; excep- tion; status of transferred cases Sec. 214. Until the opening of the Commerce Court, all cases and proceedings of which from that time the Commerce Court is hereby given exclusive jurisdiction may be brought in the same courts and conducted in like manner and with like effect as is now provided by law; and if any such case or proceeding shall have gone to final judgment or decree before the opening of the Commerce Court, appeal 676 APPENDIX may be taken from such final judgment or decree In like manner and with like effect as is now provided by law. Any such case or proceeding within the jurisdiction of the Commerce Court which may have been begun in any other court as hereby allowed, before the said date, shall be forthwith transferred to the Commerce Court, if it has not yet proceeded to final judgment or decree in such other court unless it has been finally submitted for the decision of such court, in which case the cause shall proceed in such court to final judgment or decree and further proceeding thereafter, and appeal may be taken direct to the Supreme Court; and if remanded, such cause may be sent back to the court from which the appeal was taken or to the Commerce Court for further proceeding as the Supreme Court shall direct. All previous proceedings in such transferred case shall stand and operate notwithstanding the transfer, subject to the same control over them by the Commerce Court and to the same right of subsequent action in the case or proceeding as if the trans- ferred case or proceeding had been originally begun in the Commerce Court. The clerk of the court from which any case or proceeding is so transferred to the Commerce Court shall transmit to and file in the Commerce Court the originals of all papers filed in such case or proceeding and a certified transcript of all record entries in the case or proceeding up to the time of transfer. CHAPTER TEN THE SUPREME COURT Sec. 215. Number of justices. 216. Precedence of the associate justices. 217. Vacancy in the office of Chief Justice. 218. Salaries of justices. 219. Clerk, marshal, and reporter. 220. The clerk to give bond. 221. Deputies of the clerk. 222. Records of the old court of appeals. 223. Tables of fees. 224. Marshal of the Supreme Court. 225. Duties of the reporter. 226. Reporter's salary and allow- ances. 227. Distribution of reports and digests. [227a. Distribution of reports to li- braries of circuit courts of appeals.] Sec. 228. Additional reports and di- gests; limitation upon cost; estimates to be submitted to Congress annually. 229. Distribution of Federal Re- porter, etc., and Digests. 230. Terms. 231. Adjournment for want of a quorum. 232. Certain orders made by less than quorum. 233. Original disposition. 234. Writs of prohibition and man- damus. 235. Issues of fact. 236. Appellate jurisdiction. 237. Writs of error from judg- ments and decrees of State courts. 238. Appeals and writs of error from United States district courts. THE JUDICIAL CODE 677 Sec. 239. Circuit court of appeals may certify questions to Supreme Court for instructions. 240. Certiorari to circuit court of appeals. 241. Appeals and writs of error in other cases. 242. Appeals from Court of Claims. 243. Time and manner of appeals from the Court of Claims. 244. Writs of error and appeals from supreme court of and United States district court for Porto Rico. 245. Writs of error and appeals from the Supreme Courts of Arizona and New Mexico. 246. Writs of error and appeals from the Supreme Court of Hawaii. Number of justices Sec. 215. [See ante, p. 495.] Sec. 247. Appeals and writs of error from the district court for Alaska direct to Supreme Court In certain cases. 248. Appeals and writs of error from the Supreme Court of the Philippine Islands. 249. Appeals and writs of error when a Territory becomes a State. 250. Appeals and writs of error from the Court of Appeals of the District of Columbia. 251. Certiorari to Court of Ap- peals, District of Columbia. 252. Appellate jurisdiction under the bankruptcy act. 253. Precedence of writs of error to State courts. 254. Cost of printing records. 255. Women may be admitted to practice. Precedence of the associate justices Sec. 216. The associate justices shall have precedence according to the dates of their commissions, or, when the commissions of two or more of them bear the same date, according to their ages. Vacancy in the office of Chief Justice Sec. 217. In case of a vacancy in the office of Chief Justice, or of his inability to perform the duties and powers of his office, they shall devolve upon the associate justice who is first in precedence, until such disability is removed, or another Chief Justice is appointed and duly qualified. This provision shall apply to every associate justice who succeeds to the office of Chief Justice. Salaries of justices -Sec. 218. The Chief Justice of the Supreme Court of the United States shall receive the sum of fifteen thousand dollars a year, and the justices thereof shall receive the sum of fourteen thousand five hundred dollars a year each, to be paid monthly. Clerk, marshal, and reporter Sec. 219. The Supreme Court shall have power to appoint a clerk and a marshal for said court, and a reporter of its decisions. The clerk to give bond Sec. 220. The clerk of the Supreme Court shall, before he enters upon the execution of his office, give bond, with sufficient sureties, to be approved by the court, to the United States, in the sum of not less than five thousand and not more than twenty thousand dollars, 678 APPENDIX to be determined and regulated by the Attorney General, faithfully to discharge the duties of his office, and seasonably to record the decrees, judgments, and determinations of the court. The Supreme Court may at any time, upon the motion of the Attorney General, to be made upon thirty days' notice, require a new bond, or a bond for an increased amount within the limits above prescribed: and the failure of the clerk to execute the same shall vacate his office. All bonds given by the clerk shall, after approval, be recorded in his office, and copies thereof from the records, certified by the clerk under seal of the court, shall be competent evidence in any court The original bonds shall be filed in the Department of Justice. Deputies of the clerk Sec. 221. One or more deputies of the clerk of the Supreme Court may be appointed by the court on the application of the clerk, and may be removed at the pleasure of the court. In case of the death of the clerk, his deputy or deputies shall, unless removed, continue in office and perform the duties of the clerk in his name until a clerk is appointed and qualified ; and for the defaults or misfeas- ances in office of any such deputy, whether in the lifetime of the clerk or after his death, the clerk, and his estate, and the sureties on his official bond shall be liable; and his executor or administrator shall have such remedy for any such defaults or misfeasances com- mitted after his death as the clerk would be entitled to if the same had occurred in his lifetime. Records of the old court of appeals Sec. 222. The records and proceedings of the court of appeals, appointed previous to the adoption of the present Constitution, shall be kept in the office of the clerk of the Supreme Court, who shall give copies thereof to any person requiring and paying for them, in the manner provided by law for giving copies of the records and proceedings of the Supreme Court; and such copies shall have like faith and credit with all other proceedings of said court. Tables of fees Sec. 223. The Supreme Court is authorized and empowered to prepare the tables of fees to be charged by the clerk thereof. Marshal of the Supreme Court Sec. 224. The marshal is entitled to receive a salary at the rate of four thousand five hundred dollars a year. He shall attend the court at its sessions ; shall serve and execute all process and orders issuing from it, or made by the Chief Justice or an associate jus- tice in pursuance of law; and shall take charge of all property of the United States used by the court or its members. With the ap- proval of the Chief Justice he may appoint assistants and messen- gers to attend the court, with the compensation allowed to officers of the House of Representatives of similar grade. THE JUDICIAL CODM 679 Duties of the reporter Sec. 225. The reporter shall cause the decisions of the Supreme Court to be printed and published within eight months after they are made ; and within the same time he shall deliver three hundred copies of the volumes of said reports to the Attorney General. The reporter shall, in any year when he is so directed by the court, cause to be printed and published a second volume of said decisions, of which he shall deliver a like number of copies in like manner and time. Reporter's salary and allowances Sec. 226. The reporter shall be entitled to receive from the Treasury an annual salary of four thousand five hundred dollars when his report of said decisions constitutes one volume, and an additional sum of one thousand two hundred dollars when, by di- rection of the court, he causes to be printed and published in any year a second volume ; and said reporter shall be annually entitled to clerk hire in the sum of one thousand two hundred dollars, and to office rent, stationery, and contingent expenses in the sum of six hundred dollars: Provided, That the volumes of the decisions of the court heretofore published shall be furnished by the reporter to the public at a sum not exceeding two dollars per volume, and those hereafter published at a sum not exceeding one dollar and seventy- five cents per volume; and the number of volumes now required to be delivered to the Attorney General shall be furnished by the re- porter without any charge therefor. Said salary and compensation, respectively, shall be paid only when he causes such decisions to be printed, published, and delivered within the time and in the manner prescribed by law, and upon the condition that the volumes of said reports shall be sold by him to the public for a price not exceeding one dollar and seventy-five cents a volume. Distribution of reports and digests Sec. 227. The Attorney General shall distribute copies of the Su- preme Court reports, as follows: To the President, the justices of the Supreme Court, the judges of the Commerce Court, the judges of the Court of Customs Appeals, the judges of the circuit courts of appeals, the judges of the district courts, the judges of the Court of Claims, the judges of the Court of Appeals and of the Supreme Court of the District of Columbia, the judges of the several Terri- torial courts, the Secretary of State, the Secretary of the Treasury, the Secretary of War, the Secretary of the Navy, the Secretary of the Interior, the Postmaster General, the Attorney General, the Secretary of Agriculture, the Secretary of Commerce and Labor, the Solicitor General, the Assistant to the Attorney General, each As- sistant Attorney General, each United States district attorney, each Assistant Secretary of each Executive Department, the Assistant Postmasters General, the Secretary of the Senate for the use of the Senate, the Clerk of the House of Representatives for the use of the 680 APPENDIX House of Representatives, the Governors of the Territories, the So- licitor for the Department of State, the Treasurer of the United States, the Solicitor of the Treasury, the Register of the Treasury, the Comptroller of the Treasury, the Comptroller of the Currency, the Commissioner of Internal Revenue, the Director of the Mint, each of the six Auditors in the Treasury Department, the Judge Advocate General, War Department, the Paymaster General, War Department, the Judge Advocate General, Navy Department, the Commissioner of Indian Affairs, the Commissioner of Pensions, the Commissioner of the General Land Office, the Commissioner of Pat- ents, the Commissioner of Education, the Commissioner of Labor, the Commissioner of Navigation, the Commissioner of Corporations, the Commissioner General of Immigration, the Chief of the Bureau of Manufactures, the Director of the Geological Survey, the Direc- tor of the Census, the Forester, Department of Agriculture, the Pur- chasing Agent, Post Office Department, the Interstate Commerce Commission, the Clerk of the Supreme Court of the United States, the Marshal of the Supreme Court of the United States, the Attor- ney for the District of Columbia, the Naval Academy at Annapolis, the Military Academy at West Point, and the heads of such other executive offices as may be provided by law, of equal grade with any of said offices, each one copy; to the Law Library of the Su- preme Court, twenty-five copies; to the Law Library of the De- partment of the Interior, two copies ; to the Law Library of the Department of Justice, two copies; to the Secretary of the Senate for the use of the committees of the Senate, twenty-five copies; to the Clerk of the House of Representatives for the use of the com- mittees of the House, thirty copies ; to the Marshal of the Supreme Court of the United States, as custodian of the public property used by the court, for the use of the justices thereof in the confer- ence room, robing room, and court room, three copies ; to the Secre- tary of War for the use of the proper courts and officers of the Philippine Islands and for the headquarters of military depart- ments in the United States, twelve copies; and to each of the places where district courts of the United States are now holden, includ- ing Hawaii, and Porto Rico, one copy. He shall also distribute one complete set of said reports, and one set of the digests thereof, to such executive officers as are entitled to receive said reports under this section and have not already received them, to each United States judge and to each United States district attorney who has not received a set, to each of the places where district courts are now held to which said reports have not been distributed, and to each of the places at which a district court may hereafter be held, the edition of said reports and digests to be selected by the judge or officer receiving them. No distribution of reports and digests under this section shall be made to any place where the court is held in a building not owned by the United States, unless there be at such place a United States officer to whose responsible custody THE JUDICIAL CODE 681 they can be committed. The clerks of said courts (except the Su- preme Court) shall in all cases keep said reports and digest for the use of the courts and of the officers thereof. Such reports and di- gest shall remain the property of the United States, and shall be preserved by the officers above named and by them turned over to their successors in office. [Distribution of reports to libraries of circuit courts of ap- peals] [Sec. 227a.] * * * That the Secretary of the Interior shall hereafter distribute the Supreme Court Reports to the libraries of the United States circuit courts of appeals. Additional reports and digests; limitation upon cost; esti- mates to be submitted to Congress annually Sec. 228. The publishers of the decisions of the Supreme Court shall deliver to the Attorney General, in addition to the three hun- dred copies delivered by the Reporter, such number of copies of each report heretofore published, as the Attorney General may require, for which he shall pay not more than two dollars per volume, and such number of copies of each report hereafter published as he may require, for which he shall pay not more than one dollar and seven- ty-five cents per volume. The Attorney General shall include in his annual estimates submitted to Congress, an estimate for the current volumes of such reports, and also for the additional sets of reports and digests required for distribution under the section last preced- ing. Distribution of Federal Reporter, etc., and Digests Sec. 229. The Attorney General is authorized to procure complete sets of the Federal Reporter or, in his discretion, other publication containing the decisions of the circuit courts of appeals, circuit courts, and district courts, and digests thereof, and also future vol- umes of the same as issued, and distribute a copy of each such re- ports and digests to each place where a circuit court of appeals, or a district court, is now or may hereafter regularly be held, and to the Supreme Court of the United States, the Court of Claims, the Court of Customs Appeals, the Commerce Court, the Court of Ap- peals and the Supreme Court of the District of Columbia, the Attor- ney General, the Solicitor General, the Solicitor of the Treasury, the Assistant Attorney General for the Department of the Interior, the Commissioner of Patents, and the Interstate Commerce Com- mission ; and to the Secretary of the Senate, for the use of the Sen- ate, and to the Clerk of the House of Representatives, for the use of the House of Representatives, not more than three sets each. Whenever any such court room, office, or officer shall have a partial or complete eet of any such reports, or digests, already purchased or owned by the United States, the Attorney General shall distribute to such 'court room, office, or officer, only sufficient volumes to make 682 APPENDIX a complete set thereof. No distribution of reports or digests under this section shall be made to any place where the court is held in a building not owned by the United States, unless there be at such place a United States officer to whose responsible custody they can be committed. The clerks of the courts (except the Supreme Court) to which the reports and digests are distributed under this section, shall keep such reports and digests for the use of the courts and the officers thereof. All reports and digests distributed under the provisions of this section shall be and remain the property of the United States and, before distribution, shall be plainly marked on their covers with the words "The Property of the United States," and shall be transmitted by the officers receiving them to their suc- cessors in office. Not to exceed two dollars per volume shall be paid for the back and current volumes of the Federal Reporter or other publication purchased under the provisions of this section, and not to exceed five dollars per volume for the digest, the said money to be disbursed under the direction of the Attorney General ; and the Attorney General shall include in his annual estimates submitted to Congress, an estimate for the back and current volumes of such reports and digests, the distribution of which is provided for in this section. Terms Sec. 230. The Supreme Court shall hold at the seat of govern- ment, one term annually, commencing on the second Monday in Oc- tober, and such adjourned or special terms as it may find neces- sary for the dispatch of business. Adjournment for -want of a quorum Sec. 231. If, at any session of the Supreme Court, a quorum does not attend on the day appointed for holding it, the justices who do attend may adjourn the court from day to day for twenty days after said appointed time, unless there be sooner a quorum. If a quorum does not attend within said twenty days, the business of the court shall be continued over till the next appointed session; and if, during a term, after a quorum has assembled, less than that number attend on any day, the justices attending may adjourn the court from day to day until there is a quorum, or may adjourn without day. Certain orders made by less than quorum Sec. 232. The justices attending at any term, when less than a quorum is present, may, within the twenty days mentioned in the preceding section, make all necessary orders touching any suit, pro- ceeding, or process, depending in or returned to the court, prepara- tory to the hearing, trial, or decision thereof. Original jurisdiction Sec. 233. [See ante, p. 383.] THE JUDICIAL CODE 683 Writs of prohibition and mandamus Sec. 234. The Supreme Court shall have power to issue writs of prohibition to the district courts, when proceeding as courts of ad- miralty and maritime jurisdiction ; and writs of mandamus, in cases warranted by the principles and usages of law, to any courts appointed under the authority of the United States, or to persons holding office under the authority of the United States, where a State, or an ambassador, or other public minister, or a consul, or vice consul is a party. Issues of fact Sec. 235. The trial of issues of fact in the Supreme Court, in all actions at law against citizens of the United States, shall be by jury. Appellate jurisdiction Sec. 236. The Supreme Court shall have appellate jurisdiction in the cases hereinafter specially provided for. Writs of error from judgments and decrees of State courts Sec. 237. [See ante, p. 527.] Appeals and writs of error from United States district courts Sec. 238. [See ante, pp. 473, 497.] Circuit court of appeals may certify questions to Supreme Court for instructions Sec. 239. [See ante, pp. 471, 514.] Certiorari to circuit court of appeals Sec. 240. [See ante, pp. 472, 518.] Appeals and writs of error in other cases Sec. 241. [See ante, p. 520.] Appeals from Court of Claims Sec. 242. An appeal to the Supreme Court shall be allowed on behalf of the United States, from all judgments of the Court of Claims adverse to the United States, and on behalf of the plaintiff in any case where the amount in controversy exceeds three thou- sand dollars, or where his claim is forfeited to the United States by the judgment of said court as provided in section one hundred and seventy-two. Time and manner of appeals from the Court of Claims Sec. 243. All appeals from the Court of Claims shall be taken within ninety days after the judgment is rendered, and shall be allowed under such regulations as the Supreme Court may direct Writs of error and appeals from Supreme Court of and United States district court for Porto Rico Sec. 244. Writs of error and appeals from the final judgments and decrees of the supreme court of, and the United States district 684 APPENDIX court for, Porto Rico, may be taken and prosecuted to the Supreme Court of the United States, in any case wherein is involved the va- lidity of any copyright, or in which is drawn in question the valid- ity of a treaty or statute of, or authority exercised under, the United States, or wherein the Constitution of the United States, or a treaty thereof, or an Act of Congress is brought in question and the right claimed thereunder is denied, without regard to the ^urn or value of the matter in dispute ; and in all other cases in which the sum or value of the matter in dispute, exclusive of costs, to be ascer- tained by the oath of either party or of other competent witnesses, exceeds the sum or value of five thousand dollars. Such writs of error and appeals shall be taken within the same time, in the same manner, and under the same regulations as writs of error and ap- peals are taken to the Supreme Court of the United States from the district courts. Writs of error and appeals from the Supreme Courts of Ari- zona and New Mexico Sec. 245. Writs of error and appeals from the final Judgments and decrees of the supreme courts of the Territories of Arizona and New Mexico may be taken and prosecuted to the Supreme Court of the United States in any case wherein is involved the validity of any copyright, or in which is drawn in question the validity of a treaty or statute of, or authority exercised under, the United States, without regard to the sum or value of the matter in dispute ; and in all other cases in which the sum or value of the matter in dis- pute, exclusive of costs, to be ascertained by the oath of either party or of other competent witnesses, exceeds the sum or value of five thousand dollars. Writs of error and appeals from the Supreme Court of Hawaii Sec. 246. Writs of error and appeals from the final judgments and decrees of the supreme court of the Territory of Hawaii may be taken and prosecuted to the Supreme Court of the United States, within the same time, in the same manner, under the same regula- tions, and in the same classes of cases, in which writs of error and appeals from the final judgments and decrees of the highest court of a State in which a decision in the suit could be had, may be taken and prosecuted to the Supreme Court of the United States under the provisions of section two hundred and thirty-seven ; and also in all cases wherein the amount involved, exclusive of costs, to be ascertained by the oath of either party or of other competent witnesses, exceeds the sum or value of five thousand dollars. Appeals and writs of error from the district court for Alaska direct to Supreme Court in certain cases Sec, 247. Appeals and writs of error may be taken and prosecuted from final judgments and decrees of the district court for the dis- trict of Alaska or for any division thereof, direct to the Supreme THE JUDICIAL CODE 685 Court of the United States, in the following cases: In prize cases ; and in all cases which involve the construction or application of the Constitution of the United States, or in which the constitutionality of any law of the United States or the validity or construction of any treaty made under its authority is drawn in question, or in which the constitution or law of a State is claimed to be in con- travention of the Constitution of the United States. Such writs of error and appeal shall be taken within the same time, in the same manner, and under the same regulations as writs of error and appeals are taken from the district courts to the Supreme Court. Appeals and writs of error front the Supreme Court of the Philippine Islands Sec. 248. The Supreme Court of the United States shall have ju- risdiction to review, revise, reverse, modify, or affirm the final judg- ments and decrees of the supreme court of the Philippine Islands in all actions, cases, causes, and proceedings now pending therein or hereafter determined thereby, in which the Constitution, or any stat- ute, treaty, title, right, or privilege of the United States is involved, or in causes in which the value in controversy exceeds twenty-five thousand dollars, or in which the title or possession of real estate exceeding in value the sum of twenty-five thousand dollars, to be ascertained by the oath of either party or of other competent wit- nesses, is involved or brought in question; and such final judgments or decrees may and can be reviewed, revised, reversed, modified, or affirmed by said Supreme Court on appeal or writ of error by the party aggrieved, within the same time, in the same manner, under the same regulations, and by the same procedure, as far as ap- plicable, as the final judgments and decrees of the district courts of the United States. Appeals and writs of error when a Territory becomes a State Sec. 249. In all cases where the judgment or decree of any court of a territory might be reviewed by the Supreme Court on writ of error or appeal, such writ of error or appeal may be taken, within the time and in the manner provided by law, notwithstanding such Territory has, after such judgment or decree, been admitted as a State; and the Supreme Court shall direct the mandate to such court as the nature of the writ of error or appeal requires. Appeals and writs of error from the Court of Appeals of the District of Columbia Sec. 250. Any final judgment or decree of the court of appeals of the District of Columbia may be reexamined and affirmed, reversed, or modified by the Supreme Court of the United States, upon writ of error or appeal, in the following cases: First. In cases in which the jurisdiction of the trial court is in issue; but when any such case is not otherwise reviewable in said 686 APPENDIX Supreme Court, then the question of jurisdiction alone shall be certified to said Supreme Court for decision. Second. In prize cases. Third. In cases involving the construction or application of the Constitution of the United States, or the constitutionality of any law of the United States, or the validity or construction of any treaty made under its authority. Fourth. In cases in which the constitution, or any law of a State, is claimed to be in contravention of the Constitution of the United States. Fifth. In cases in which the validity of any authority exercised under the United States, or the existence or scope of any power or duty of an officer of the United States is drawn in question. Sixth. In cases in which the construction of any law of the United States is drawn in question by the defendant Except as provided in the next succeeding section, the judgments and decrees of said court of appeals shall be final in all cases aris- ing under the patent laws, the copyright laws, the revenue laws, the criminal laws, and in admiralty cases; and except as provided in the next succeeding section, the judgments and decrees of said court of appeals shall be final in all cases not reviewable as hereinbefore provided. Writs of error and appeals shall be taken within the same time, in the same manner, and under the same regulations as writs of error and appeals are taken from the circuit courts of appeals to the Supreme Court of the United States. Certiorari to Court of Appeals, District of Columbia Sec. 251. In any case in which the judgment or decree of said court of appeals is made final by the section last preceding, it shall be competent for the Supreme Court of the United States to re- quire, by certiorari or otherwise, any such case to be certified to it for its review and determination, with the same power and author- ity in the case as if it had been carried by writ of error or appeal to said Supreme Court. It shall also be competent for said court of appeals, in any case in which its judgment or decree is made final under the section last preceding, at any time to certify to the Su- preme Court of the United States any questions or propositions of law concerning which it desires the instruction of that court for their proper decision ; and thereupon the Supreme Court may either give its instruction on the questions and propositions certified to it, which shall be binding upon said court of appeals in such case, or it may require that the whole record and cause be sent up to it for its consideration, and thereupon shall decide the whole matter in controversy in the same manner as if it had been brought there for review by writ of error or appeal. Appellate jurisdiction under the bankruptcy act Sec. 252. [See ante, p. 523.] THE JUDICIAL CODE 687 Precedence of writs of error to State courts Sec. 253. Cases on writ of error to revise the judgment of a State court in any criminal case shall have precedence on the docket of the Supreme Court, of all cases to which the Government of the United States is not a party, excepting only such cases as the court, in its discretion, may decide to be of public importance. Cost of printing records Sec. 254. There shall be taxed against the losing party in each and every cause pending in the Supreme Court the cost of printing the record in such case, except when the judgment is against the United States. Women may be admitted to practice Sec. 255. Any woman who shall have been a member of the bar of the highest court of any State or Territory, or of the court of appeals of the District of Columbia, for the space of three years, and shall have maintained a good standing before such court, and who shall be a person of good moral character, shall, on motion, and the production of such record, be admitted to practice before the Supreme Court of the United States. CHAPTER ELEVEN PROVISIONS COMMON TO MORE THAN ONE COURT Sec. 256. Cases in which jurisdiction of United States courts shall be exclusive of State courts. 257. Oath of United States judges. 258. Judges prohibited from practic- ing law. 259. Traveling expenses, etc., of cir- cuit justices and circuit and district judges. 260. Salary of judges after resigna- tion. 261. Writes of ne exeat. 262. Power to issue writs. 263. Temporary restraining orders. 264. Injunctions; in what cases judge may grant. 265. Injunctions to stay proceedings in State courts. Sec. 266. Injunctions based upon alleged unconstitutionality of State statutes; when and by whom may be granted. 267. When suits in equity may be maintained. 268. Power to administer oaths and punish contempts. 269. New trials. 270. Power to hold to security for the peace and good behavior. 271. Power to enforce awards of foreign consuls, etc., in cer- tain cases. 272. Parties may manage their caus- es personally or by counsel. 273. Certain officers forbidden to act as attorneys. 274. Penalty for violating preceding section. Cases in which jurisdiction of United States courts shall be exclusive of State courts Sec. 256. The jurisdiction vested in the courts of the United States in the cases and proceedings hereinafter mentioned, shall be exclusive of the courts of the several States: 688 APPENDIX First. Of all crimes and offenses cognizable under the authority of the United States. Second. Of all suits for penalties and forfeitures incurred under the laws of the United States. Third. Of all civil causes of admiralty and maritime jurisdiction; saving to suitors, in all cases, the right of a common-law remedy, where the common law is competent to give it. Fourth. Of all seizures under the laws of the United States, on land or on waters not within admiralty and maritime jurisdiction ; of all prizes brought into the United States; and of all proceedings for the condemnation of property taken as prize. Fifth. Of all cases arising under the patent-right, or copyright laws of the United States. Sixth. Of all matters and proceedings in bankruptcy. Seventh. Of all controversies of a civil nature, where a State is a party, except between a State and its citizens, or between a State and citizens of other States, or aliens. Eighth. Of all suits and proceedings against ambassadors, or other public ministers, or their domestics, or domestic servants, or against consuls or vice-consuls. Oath of United States judges Sec. 257. The justices of the Supreme Court, the circuit judges, and the district judges, hereafter appointed, shall take the following oath before they proceed to perform the duties of their respective offices: "I, , do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impar- tially discharge and perform all the duties incumbent upon me as according to the best of my abilities and understanding, agreeably to the Constitution and laws of the United States: So help me God." Judges prohibited from practicing law Sec. 258. It shall not be lawful for any judge appointed under the authority of the United States to exercise the profession or em- ployment of counsel or attorney, or to be engaged in the practice of the law. Any person offending against the prohibition of this section shall be deemed guilty of a high misdemeanor. Traveling expenses, etc., of circuit justices and circuit and district judges Sec. 259. The circuit justices, the circuit and district judges of the United States, and the judges of the district courts of the Unit- ed States in Alaska, Hawaii, and Porto Rico, shall each be allowed and paid his necessary expenses of travel, and his reasonable ex- penses (not to exceed ten dollars per day) actually incurred for maintenance, consequent upon his attending court or transacting other official business in pursuance of law at any place other than THE JUDICIAL CODE 689 his official place of residence, said expenses to be paid by the mar- shal of the district in which such court is held or official business transacted, upon the written certificate of the justice or judge. The official place of residence of each justice and of each circuit judge while assigned to the Commerce Court shall be at Washington; and the official place of residence of each circuit and district judge, and of each judge of the district courts of the United States in Alaska, Hawaii, and Porto Rico, shall be at that place nearest his actual residence at which either a circuit court of appeals or a district court is regularly held. Every such judge shall, upon his appoint- ment, and from time to time thereafter whenever he may change his official residence, in writing notify the Department of Justice of his official place of residence. Salary of judges after resignation Sec. 260. When any judge of any court of the United States ap- pointed to hold his office during good behavior resigns his office, after having held a commission or commissions as judge of any such court or courts at least ten years continuously, and having attained the age of seventy years, he shall, during the residue of his natural life, receive the salary which is payable at the time of his retirement for the office that he held at the time of his resigna- tion. Writs of ne exeat Sec. 261. Writs of ne exeat may be granted by any justice of the Supreme Court, in cases where they might be granted by the Supreme Court; and by any district judge, in cases where they might be granted by the district court of which he is a judge But no writ of ne exeat shall be granted unless a suit in equity is com- menced, and satisfactory proof is made to the court or judge grant- ing the same that the defendant designs quickly to depart from the United States. Power to issue writs Sec. 262. [See ante, p. 493.] Temporary restraining orders Sec. 263. [See ante, p. 428.] Injunctions; in what cases judge may grant Sec. 264. [See ante, p. 429.] Injunctions to stay proceedings in State courts Sec 265. [See ante, p. 430.] Injunctions based upon alleged unconstitntionality of State statutes; when and by whom may be granted Sec. 266. (See ante, p. 432.] When suits in equity may be maintained Sec. 267. [See ante, p. 418.] HUGHES FED.PB.(2o ED.) 44 690 . APPENDIX Power to administer oaths and punish contempts Sec. 268. The said courts shall have power to impose and admin- ister all necessary oaths, and to punish, by fine or imprisonment, at the discretion of the court, contempts of their authority: Provided, That such power to punish contempts shall not be construed to ex- tend to any cases except the misbehavior of any person in their pres- ence, or so near thereto as to obstruct the administration of justice, the misbehavior of any of the officers of said courts in their offi- cial transactions, and the disobedience or resistance by any such of- ficer, or by any party, juror, witness, or other person to any lawful writ, process, order, rule, decree, or command of the said courts. New trials Sec. 269. [See ante, p. 411.] Power to hold to security for the peace and good behavior Sec. 270. The judges of the Supreme Court and of the circuit courts of appeals and district courts, United States commissioners, and the judges and other magistrates of the several States, who are or may be authorized by law to make arrests for offenses against the United States, shall have the like authority to hold to security of the peace and for good behavior, in cases arising under the Con- stitution and laws of the United States, as may be lawfully exer- cised by any judge or justice of the peace of the respective States, in cases cognizable before them. Power to enforce awards of foreign consuls, etc., in certain cases Sec. 271. The district courts and the United States commission- ers shall have power to carry into effect, according to the true in- tent and meaning thereof, the award or arbitration or decree of any consul, vice consul, or commercial agent of any foreign na- tion, made or rendered by virtue of authority conferred on him as such consul, vice consul, or commercial agent, to sit as judge or arbitrator in such differences as may arise between the captains and crews of the vessels belonging to the nation whose interests are committed to his charge, application for the exercise of such power being first made to such court or commissioner, by petition of such consul, vice consul, or commercial agent. And said courts and commissioners may issue all proper remedial process, mesne and final, to carry into full effect such award, arbitration, or decree, and to enforce obedience thereto by imprisonment in the jail or other place of confinement in the district in which the United States may lawfully imprison any person arrested under the au- thority of the United States, until such award, arbitration, or de- cree is complied with, or the parties are otherwise discharged there- from, by the consent in writing of such consul, vice consul, or com- mercial agent, or his successor in office, or by the authority of the foreign government appointing such consul, vice consul, or com- THE JUDICIAL CODE 691 mercial agent: Provided, however, That the expenses of the said imprisonment and maintenance of the prisoners, and the cost of the proceedings, shall be borne by such foreign government, or by its consul, vice consul, or commercial agent requiring such imprison- ment. The marshals of the United States shall serve all such pro- cess, and do all other acts necessary and proper to carry into effect the premises, under the authority of the said courts and commis- sioners. Parties may manage their causes personally or by counsel Sec. 272. In all the courts of the United States the parties may plead and manage their own causes personally, or by the assistance of such counsel or attorneys at law as, by the rules of the said courts, respectively, are permitted to manage and conduct causes therein. Certain officers forbidden to act as attorneys Sec. 273. No clerk, or assistant or deputy clerk, of any Territo- rial, district, or circuit court of appeals, or of the Court of Claims, or of the Supreme Court of the United States, or marshal or deputy marshal of the United States within the district for which he is appointed, shall act as a solicitor, proctor, attorney, or counsel in any cause depending in any of said courts, or in any district for which he is acting as such officer. Penalty for violating preceding section Sec. 274. Whoever shall violate the provisions of the preceding section shall be stricken from the roll of attorneys by the court upon complaint, upon which the respondent shall have due notice and be heard in his defense; and in the case of a marshal or deputy marshal so acting, he shall be recommended by the court for dis- missal from office. CHAPTER TWELVE JURIES Sec. 275. Qualifications and exemptions of jurors. 276. Jurors, how drawn. 277. Jurors, how to be apportioned in the district. 278. Race or color not to exclude. 279. Venire, how issued and served. 280. Talesmen for petit juries. 281. Special juries. 282. Number of grand jurors. Qualifications and exemptions of jurors Sec. 275. Jurors to serve in the courts of the United States, in each State respectively, shall have the same qualifications, subject Sec. 283. Foreman of grand jury. 284. Grand juries, when summoned. 285. Discharge of grand juries. 286. Jurors not to serve more than once a year. 287. Challenges. 288. Persons disqualified for service on jury in prosecutions for polygamy, etc. 692 APPENDIX to the provisions hereinafter contained, and be entitled to the same exemptions, as jurors of the highest court of law in such State may have and be entitled to at the time when such jurors for service in the courts of the United States are summoned. Juror g, how drawn Sec. 276. All such jurors, grand and petit, including those sum- moned during the session of the court, shall be publicly drawn from a box containing, at the time of each drawing, the names of not less than three hundred persons, possessing the qualifications pre- scribed in the section last preceding, which names shall have been placed therein by the clerk of such court and a commissioner, to be appointed by the judge thereof, or by the judge senior in commis- sion in districts having more than one judge, which commissioner shall be a citizen of good standing, residing in the district in which such court is held, and a well-known member of the principal po- litical party in the district in which the court is held opposing that to which the clerk may belong, the clerk and said commissioner each to place one name in said box alternately, without reference to party affiliations until the whole number required shall be placed therein. Jurors, how to be apportioned in the district Sec. 277. Jurors shall be returned from such parts of the district, from time to time, as the court shall direct, so as to be most favor- able to an impartial trial, and so as not to incur an unnecessary expense, or unduly burden the citizens of any part of the district with such service. Race or color not to exclude Sec. 278. No citizen possessing all other qualifications which are or may be prescribed by law shall be disqualified for service as grand or petit juror in any court of the United States on account of race, color, or previous condition of servitude. Venire, how issued and served Sec. 279. Writs of venire facias, when directed by the court, shall issue from the clerk's office, and shall be served and returned by the marshal in person, or by his deputy; or, in case the marshal or his deputy is not an indifferent person, or is interested in the event of the cause, by such fit person as may be specially appointed for that purpose by the court, who shall administer to him an oath that he will truly and impartially serve and return the writ. Any per- son named in such writ who resides elsewhere than at the place at which the court is held, shall be served by the marshal mailing a copy thereof to such person commanding him to attend as a juror at a time and place designated therein, which copy shall be regis- tered and deposited in the post office addressed to such person at his usual post office address. And the receipt of the person so ad- THE JUDICIAL CODE 693 dressed for such registered copy shall be regarded as personal service of such writ upon such person, and no mileage shall be al- lowed for the service of such person. The postage and registry fee shall be paid by the marshal and allowed him in the settlement of his accounts. Talesmen for petit juries Sec. 280. When, from challenges or otherwise, there is not a petit jury to determine any civil or criminal cause, the marshal or his deputy shall, by order of the court in which such defect of jurors happens, return jurymen from the bystanders sufficient to complete the panel ; and when the marshal or his deputy is disqualified as aforesaid, jurors may be so returned by such disinterested person as the court may appoint, and such person shall be sworn, as pro- vided in the preceding section. Special juries Sec. 281. When special juries are ordered in any district court, they shall be returned by the marshal in the same manner and form as is required in such cases by the laws of the several States. Number of grand jurors Sec. 282. Every grand jury impaneled before any district court shall consist of not less than sixteen nor more than twenty-three persons. If of the persons summoned less than sixteen attend, they shall be placed on the grand jury, and the court shall order the marshal to summon, either immediately or for a day fixed, from the body of the district, and not from the bystanders, a sufficient number of persons to complete the grand jury. And whenever a challenge to a grand juror is allowed, and there are not in attend- ance other jurors sufficient to complete the grand jury, the court shall make a like order to the marshal to summon a sufficient num- ber of persons for that purpose. Foreman of grand jury Sec. 283. From the persons summoned and accepted as grand jurors, the court shall appoint the foreman, who shall have power to administer oaths and affirmations to witnesses appearing before the grand jury. Grand juries, when summoned Sec. 284. No grand jury shall be summoned to attend any dis- trict court unless the judge thereof, in his own discretion or upon a notification by the district attorney that such jury will be needed, orders a venire to issue therefor. If the United States attorney for any district which has a city or borough containing at least three hundred thousand inhabitants shall certify in writing to the district judge, or the senior district judge of the district, that the exigen- cies of the public service require it, the judge may, in his discre- 694 APPENDIX tion, also order a venire to issue for a second grand jury. And said court may in term order a grand jury to be summoned at such time, and to serve such time as it may direct, whenever, in its judgment, it may be proper to do so. But nothing herein shall operate to extend beyond the time permitted by law the imprison- ment before indictment found of a person accused of a crime or offense, or the time during which a person so accused may be held under recognizance before indictment found. Discharge of grand juries Sec. 285. The district courts, the district courts of the Territories, and the Supreme Court of the District of Columbia may discharge their grand juries whenever they deem a continuance of the sessions of such juries unnecessary. Jurors not to serve more than once a year Sec. 286. No person shall serve as a petit juror in any district court more than one term in a year; and it shall be sufficient cause of challenge to any juror called to be sworn in any cause that he has been summoned and attended said court as a juror at any term of said court held within one year prior to the time of such challenge. Challenges Sec. 287. When the offense charged is treason or a capital offense, the defendant shall be entitled to twenty and the United States to six peremptory challenges. On the trial of any other felony, the defendant shall be entitled to ten and the United States to six per- emptory challenges ; and in all other cases, civil and criminal, each party shall be entitled to three peremptory challenges; and in all cases where there are several defendants or several plaintiffs, the parties on each side shall be deemed a single party for the purposes of all challenges under this section. All challenges, whether to the array or panel, or to individual jurors for cause or favor, shall be tried by the court without the aid of triers. Persons disqualified for service on jury in prosecutions for polygamy, etc. Sec. 288. In any prosecution for bigamy, polygamy, or unlawful cohabitation, under any statute of the United States, it shall be suf- ficient cause of challenge to any person drawn or summoned as a juryman or talesman First, that he is or has been living in the practice of bigamy, polyg- amy, or unlawful cohabitation with more than one woman, or that he is or has been guilty of an offense punishable either by sections one or three of an Act entitled "An Act to amend section fifty-three hundred and fifty-two of the Revised Statutes of the United States, in reference to bigamy, and for other purposes," approved March twenty-second, eighteen hundred and eighty-two, or by section fifty- three hundred and fifty-two of the Revised Statutes of the United THE JUDICIAL CODE 695 States, or the Act of July first, eighteen hundred and sixty-two, en- titled "An Act to punish and prevent the practice of polygamy in the Territories of the United States and other places, and disap- proving and annulling certain Acts of the legislative assembly of the territory of Utah" ; or Second, that he believes it right for a man to have more than one living and undivorced wife at the same time, or to live in the prac- tice of cohabiting with more than one woman. Any person appearing or offered as a juror or talesman, and chal- lenged on either of the foregoing grounds, may be questioned on his oath as to the existence of any such cause of challenge ; and other evidence may be introduced bearing upon the question raised by such challenge ; and this question shall be tried by the court. But as to the first ground of challenge before mentioned, the per- son challenged shall not be bound to answer if he shall say upon his oath that he declines on the ground that his answer may tend to criminate himself; and if he shall answer as to said first ground, his answer shall not be given in evidence in any criminal prosecu- tion against him for any offense above named; but if he declines to answer on any ground, he shall be rejected as incompetent. CHAPTER THIRTEEN GENERAL PROVISIONS Sec. 289. Circuit courts abolished; rec- ords of to be transferred to district courts. 290. Suits pending in circuit courts to be disposed of in district courts. 291. Powers and duties of circuit courts imposed upon district courts. 292. References to laws revised in this act deemed to refer to sections of act. Sec. 293. Sections 1 to 5, Revised Stat- utes, to govern construction of this act. 294. Laws revised in this act to be construed as continuations of existing laws. 295. Inference of legislative con- struction not to be drawn by reason of arrangement of sec- tions. 296. Act may be designated as "The Judicial Code." Circuit courts abolished; records of to be transferred to dis- trict courts Sec. 289. The circuit courts of the United States, upon the taking effect of this Act, shall be, and hereby are, abolished ; and there- upon, on said date, the clerks of said courts shall deliver to the clerks of the district courts of the United States for their respective districts all the journals, dockets, books, files, records, and other books and papers of or belonging to or in any manner connected with said circuit courts; and shall also on said date deliver to the clerks of said district courts all moneys, from whatever source re- 696 APPENDIX ceived, then remaining in their hands or under their control as clerks of said circuit courts, or received by them by virtue of their said offices. The journals, dockets, books, files, records, and other books and papers so delivered to the clerks of the several district courts shall be and remain a part of the official records of said dis- trict courts, and copies thereof, when certified under the hand and seal of the clerk of the district court, shall be received as evidence equally with the originals thereof; and the clerks of the several district courts shall have the same authority to exercise all the powers and to perform all the duties with respect thereto as the clerks of the several circuit courts had prior to the taking effect of this Act Suits pending in circuit courts to be disposed of in district conrts Sec. 290. All suits and proceedings pending in said circuit courts on the date of the taking effect of this Act, whether originally brought therein or certified thereto from the district courts, shall thereupon and thereafter be proceeded with and disposed of in the district courts in the same manner and with the same effect as if originally begun therein, the record thereof being entered in the rec- ords of the circuit courts so transferred as above provided. Powers and duties of circuit conrts imposed upon district courts Sec. 291. [See ante, pp. 197, 401, 579.] References to laws revised in this act deemed to refer to sec- tions of act Sec. 292. Wherever, in any law not contained within this Act, a reference is made to any law revised or embraced herein, such ref- erence, upon the taking effect hereof, shall be construed to refer to the section of this Act into which has been carried or revised the provision of law to which reference is so made. Sections 1 to 5, Revised Statutes, to govern construction of this act Sec. 293. The provisions of sections one to five, both inclusive, of the Revised Statutes, shall apply to and govern the construction of the provisions of this Act. The words "this title," wherever they occur herein, shall be construed to mean this Act. Laws revised in this act to be construed as continuations of existing laws Sec. 294. The provisions of this Act, so far as they are substan- tially the same as existing statutes, shall be construed as continua- tions thereof, and not as new enactments, and there shall be no im- plication of a change of intent by reason of a change of words in such statute, unless such change of intent shall be clearly manifest. THE JUDICIAL CODE 697 Inference of legislative construction not to be drawn by rea- son of arrangement of sections Sec. 295. The arrangement and classification of the several sec- tions of this Act have been made for the purpose of a more con- venient and orderly arrangement of the same, and therefore no in- ference or presumption of a legislative construction is to be drawn by reason of the chapter under which any particular section is placed. Act may be designated as "The Judicial Code" Sec. 296. This Act may be designated and cited as "The Judicial Code." CHAPTER FOURTEEN REPEALING PROVISIONS Sec. 297. Sections, acts, and parts of acts repealed. 298. Repeal not to affect tenure of office, or salary, or compensa- tion of incumbents, etc. 299. Accrued rights, etc., not af- fected. Sec. 300. Offenses committed, and penal- ties, forfeitures, and liabilities incurred, how to be prosecut- ed and enforced. 301. Date this act shall be effective. Sections, acts, and parts of actc repealed Sec. 297. The following sections of the Revised Statutes and Acts and parts of Acts are hereby repealed: Sections five hundred and thirty to five hundred and sixty, both inclusive; sections five hundred and sixty-two to five hundred and sixty-four, both inclusive; sections five hundred and sixty-seven to six hundred and twenty-seven, both inclusive; sections six hundred and twenty-nine to six hundred and forty-seven, both inclusive ; sec- tions six hundred and fifty to six hundred and ninety-seven, both inclusive; section six hundred and ninety -nine; sections seven hun- dred and two to seven hundred and fourteen, both inclusive; sec- tions seven hundred and sixteen to seven hundred and twenty, both inclusive ; section seven hundred and twenty-three ; sections seven hundred and twenty-five to seven hundred and forty-nine, both in- clusive ; sections eight hundred to eight hundred and twenty-two, both inclusive; sections ten hundred and forty-nine to ten hundred and eighty-eight, both inclusive; sections ten hundred and ninety- one to ten hundred and ninety-three, both inclusive, of the Revised Statutes. "An Act to determine the Jurisdiction of circuit courts of the United States and to regulate the removal of causes from State courts, and for other purposes," approved March third, eighteen hundred and seventy-five. 698 APPENDIX Section five of an Act entitled "An Act to amend section fifty- three hundred and fifty-two of the Revised Statutes of the United States, in reference to bigamy, and for other purposes," approved March twenty-second, eighteen hundred and eighty -two; but sec- tions six, seven, and eight of said Act, and sections one, two, and twenty-six of an Act entitled "An Act to amend an Act entitled 'An Act to amend section fifty-three hundred and fifty-two of the Re- vised Statutes of the United States, in reference to bigamy, and for other purposes,' approved March twenty-second, eighteen hundred and eighty-two," approved March third, eighteen hundred and eighty- seven, are hereby continued in force. "An Act to afford assistance and relief to Congress and the execu- tive departments in the investigation of claims and demands against the Government," approved March third, eighteen hundred and eighty-three. "An Act regulating appeals from the supreme court of the Dis- trict of Columbia and the supreme courts of the several Territories," approved March third, eighteen hundred and eighty-five. "An Act to provide for the bringing of suits against the Govern- ment of the United States," approved March third, eighteen hundred and eighty-seven, except sections four, five, six, seven, and ten thereof. Sections one, two, three, four, six, and seven of an Act entitled "An Act to correct the enrollment of an Act approved March third, eighteen hundred and eighty-seven, entitled 'An Act to amend sec- tions one, two, three, and ten of an Act to determine the jurisdic- tion of the circuit courts of the United States, and to regulate the removal of causes from State courts, and for other purposes,' ap- proved March third, eighteen hundred and seventy-five," approved August thirteenth, eighteen hundred and eighty-eight. "An Act to withdraw from the Supreme Court jurisdiction of crim- inal cases not capital and confer the same on the circuit courts of appeals," approved January twentieth, eighteen hundred and ninety- seven. "An Act to amend sections one and two of the Act of March third, eighteen hundred and eighty-seven, Twenty-fourth Statutes at Large, chapter three hundred and fifty-nine," approved June twenty-sev- enth, eighteen hundred and ninety-eight. "An Act to amend the seventh section of the Act entitled 'An Act to establish circuit courts of appeals and to define and regulate in certain cases the jurisdiction of the courts of the United States, and for other purposes,' approved March third, eighteen hundred and ninety-one, and the several Acts amendatory thereto," approved April fourteenth, nineteen hundred and six. All Acts and parts of Acts authorizing the appointment of United States circuit or district judges, or creating or changing judicial circuits, or judicial districts or divisions thereof, or fixing or chang- THE JUDICIAL CODE 699 ing the times or places of holding court therein, enacted prior to February first, nineteen hundred and eleven. Sections one, two, three, four, five, the first paragraph of section six, and section seventeen of an Act entitled "An Act to create a commerce court, and to amend an Act entitled 'An Act to regulate commerce,' approved February fourth, eighteen hundred and eighty- seven, as heretofore amended, and for other purposes," approved June eighteenth, nineteen hundred and ten. Also all other Acts and parts of Acts, in so far as they are em- braced within and superseded by this Act, are hereby repealed ; the remaining portions thereof to be and remain in force with the same effect and to the same extent as if this Act had not been passed. Repeal not to affect tenure of office, or salary, or compensa- tion of incumbents, etc. Sec. 298. The repeal of existing laws providing for the appoint- ment of judges and other officers mentioned in this Act, or affecting the organization of the courts, shall not be construed to affect the tenure of office of the incumbents (except the office be abolished), but they shall continue to hold their respective offices during the terms for which appointed, unless removed as provided by law; nor (except the office be abolished) shall such repeal affect the salary or fees or compensation of any officer or person holding office or po- sition by virtue of any law. Accrued rights, etc., not affected Sec. 299. The repeal of existing laws, or the amendments there- of, embraced in this Act, shall not affect any act done, or any right accruing or accrued, or any suit or proceeding, including those pend- ing on writ of error, appeal, certificate, or writ of certiorarl, in any appellate court referred to or included within, the provisions of this Act, pending at the time of the taking effect of this Act, but all such suits and proceedings, and suits and proceedings for causes arising or acts done prior to such date, may be commenced and prosecuted within the same time, and with the same effect, as if said repeal or amendments had not been made. Offenses committed, and penalties, forfeitures, and liabili- ties incurred, how to be prosecuted and enforced Sec. 300. All offenses committed, and all penalties, forfeitures, or liabilities incurred prior to the taking effect hereof, under any law embraced in, amended, or repealed by this Act, may be prosecuted and punished, or sued for and recovered, in the district courts, in the same manner and with the same effect as if this Act had not been passed. Date this act shall be effective Sec. 301. This Act shall take effect and be in force on and after January first, nineteen hundred and twelve. THE COMMERCE COURT THE PORTION OF THE DEFICIENCY APPBOPBIATION BILL OF OCTOBER 22, 1913, ABOLISHING IT The Commerce Court, created and established by the Act entitled "An Act to create a Commerce Court and to amend the Act entitled 'An Act to regulate commerce,' approved February fourth, eighteen hundred and eighty-seven, as heretofore amended, and for other purposes," approved June eighteenth, nineteen hundred and ten, is abolished from and after December thirty-first, nineteen hundred and thirteen, and the jurisdiction vested in said Commerce Court by said Act is transferred to and vested in the several district courts of the United States, and all Acts or parts of Acts in so far as they relate to the establishment of the Commerce Court are repealed. Nothing herein contained shall be deemed to affect the tenure of any of the judges now acting as circuit judges by appointment un- der the terms of said Act, but such judges shall continue to act under assignment, as in the said Act provided, as judges of the dis- trict courts and circuit courts of appeals; and in the event of and on the death, resignation, or removal from office of any of such judges, his office is hereby abolished and no successor to him shall be appointed. The venue of any suit hereafter brought to enforce, suspend, or set aside, in whole or in part, any order of the Interstate Commerce Commission shall be in the judicial district wherein is the residence of the party or any of the parties upon whose petition the order was made, except that where the order does not relate to trans- portation or is not made upon the petition of any party the venue shall be in the district where the matter complained of in the peti- tion before the commission arises, and except that where the order does not relate either to transportation or to a matter so complained of before the commission the matter covered by the order shall be deemed to arise in the district where one of the petitioners in court has either its principal office or its principal operating office. In case such transportation relates to a through shipment the term "destination" shall be construed as meaning final destination of such shipment The procedure in the district courts in respect to cases of which jurisdiction is conferred upon them by this Act shall be the same as that heretofore prevailing in the Commerce Court. The orders, writs, and processes of the district courts may in these cases run, be HUGHES FED.PB.(2n ED.) (701) 702 APPENDIX served, and be returnable anywhere in the United States; and the right of appeal from the district courts in such cases shall be the same as the right of appeal heretofore prevailing under existing law from the Commerce Court. No interlocutory injunction suspending or restraining the enforcement, operation, or execution of, or setting aside, in whole or in part, any order made or entered by the Inter- state Commerce Commission shall be issued or granted by any dis- trict court of the United States, or by any judge thereof, or by any circuit judge acting as district judge, unless the application for the same shall be presented to a circuit or district judge, and shall be heard and determined by three judges, of whom at least one shall be a circuit judge, and unless a majority of said three judges shall concur in granting such application. When such application as aforesaid is presented to a judge, he shall immediately call to his assistance to hear and determine the application two other judg- es. Said application shall not be heard or determined before at least five days' notice of the hearing has been given to the Inter- state Commerce Commission, to the Attorney General of the United States, and to such other persons as may be defendants in the suit: Provided, That in cases where irreparable damage would otherwise ensue to the petitioner, a majority of said three judges concurring, may, on hearing, after not less than three days' notice to the Inter- state Commerce Commission and the Attorney General, allow a tem- porary stay or suspension, in whole or in part, of the operation of the order of the Interstate Commerce Commission for not more than sixty days rrom the date of the order of said judges pending the application for the order or injunction, in which case the said order shall contain a specific finding, based upon evidence submitted to the judges making the order and identified by reference thereto, that such irreparable damage would result to the petitioner and speci- fying the nature of the damage. The said judges may, at the time of hearing such application, upon a like finding, continue the tem- porary stay or suspension in whole or in part until decision upon the application. The hearing upon such application for an interlocu- tory injunction shall be given precedence and shall be in every way expedited and be assigned for a hearing at the earliest practicable day after the expiration of the notice hereinbefore provided for. An appeal may be taken direct to the Supreme Court of the United States from the order granting or denying, after notice and hearing, an interlocutory injunction, in such case if such appeal be taken within thirty days after the order, in respect to which complaint is made, is granted or refused ; and upon the final hearing of any suit brought to suspend or set aside, in whole or in part, any order of said commission the same requirement as to judges and the same procedure as to expedition and appeal shall apply. A final judg- ment or decree of the district court may be reviewed by the Su- preme Court of the United States if appeal to the Supreme Court be taken by an aggrieved party within sixty days after the entry THE COMMERCE COURT 703 of such final judgment or decree, and such appeals may be taken in like manner as appeals are taken under existing law in equity cases. And in such case the notice required shall be served upon the defendants in the case and upon the attorney general of the State. All cases pending in the Commerce Court at the date of the passage of this Act shall be deemed pending in and be transferred forthwith to said district courts except cases which may previously have been submitted to that court for final decree and the latter to be transferred to the district courts if not decided by the Commerce Court before December first, nineteen hundred and thirteen, and all cases wherein injunctions or other orders or decrees, manda- tory or otherwise, have been directed or entered prior to the aboli- tion of the said court shall be transferred forthwith to said district courts, which shall have jurisdiction to proceed therewith and to enforce said injunctions, orders, or decrees. Each of said cases and all the records, papers, and proceedings shall be transferred to the district court wherein it might have been filed at the time it was filed in the Commerce Court if this Act had then been in effect; and if it might have been filed in any one of two or more district courts it shall be transferred to that one of said district courts which may be designated by the petitioner or petitioners in said case, or, upon failure of said petitioners to act in the premises with- in thirty days after the passage of this Act, to such one of said district courts as may be designated by the judges of the Commerce Court. The judges of the Commerce Court shall have authority, and are hereby directed, to make any and all orders and to take any other action necessary to transfer as aforesaid the cases and all the records, papers, and proceedings then pending in the Commerce Court to said district courts. All administrative books, dockets, files, and all papers of the Commerce Court not transferred as part of the record of any particular case shall be lodged in the Depart- ment of Justice. All furniture, carpets, and other property of the Commerce Court is turned over to the Department of Justice and the Attorney General is authorized to supply such portion thereof as in his judgment may be proper and necessary to the United States Board of Mediation and Conciliation. Any case hereafter remanded from the Supreme Court which, but for the passage of this Act, would have been remanded to the Com- merce Court, shall be remanded to a district court, designated by the Supreme Court, wherein it might have been instituted at the time it was instituted in the Commerce Court if this Act had then been in effect, and thereafter such district court shall take all nec- essary and proper proceedings in such case in accordance with law and such mandate, order, or decree therein as may be made by said Supreme Court. All laws or parts of laws inconsistent with the foregoing provi- sions relating to the Commerce Court, are repealed. TABLE OF CASES CITED [THE FIGURES REFER TO PAGES] Abraham v. North German Ins. Co., 436. Acord v. Western Pocahontas Corp., 288, 441, 464. Adams v. Shirk, 283, 412. Adams v. Terrell, 98. Addyston Pipe & Steel Co. v. U. S., 195. Adler, In re, 486. Adler v. United States, 62. Agnew v. United States, 52. A. J. Phillips Co. v. Grand Trunk Western R. Co., 488. Alabama Great Southern R. Co. v. Thompson, 333, 370. Albany & R. Iron & Steel Co. v. Lundberg, 397. Alberty v. United States, 59. Alderson, In re, 135. Aldrich v. ^tna Ins. Co., 555. Alkire Grocery Co. v. Richesin, 232. Allen v. Massey, 154. Allen v. United States, 65. Allen-West Commission Co. v. Bra shear, 259. Alliance, The, 492. Allis v. United States, 65. Allis Co. v. Withlacoochee, 443. Allison v. United States, 60. Allnut v. Lancaster, 256. Alsop v. Conway, 234. Altman, In re, 101. Altaian & Co. v. United States, 512. Alton Water Co. v. Brown, 462. A. L. Wolff & Co. v. Choctaw, O. & G. R. Co., 237. Ambler v. Eppinger, 281. American Agr. Chemical Co. v. Brinkley, 98. American Baptist Home Mission Soc. v. Stewart, 221. American Bridge Co. v. Peden, 412. American Cereal Co. v. Eli Petti- john Cereal Co., 427. American Colortype Co. v. Con- tinental Colortype Co., 283. American Const. Co. v. Jackson- ville, T. & K. W. R. Co., 467, 519. American Creosote Works v. C. Lembcke & Co., 390. American Exp. ' Co. v. Michigan, 530. American Guarantee & Security Co. of California, In re, 117. American Smelting & Refining Co. v. Godfrey, 232. American Sugar Refining Co. v. New Orleans, 479, 490. American Telephone & Telegraph Co. of Alabama v. New Decatur, 239. American Waterworks & Guaran- tee Co. v. Water Co., 281. Ames v. Kansas, 222, 238, 383. Ames v. Moir, 180. Amy v. Manning, 342. Amy v. Watertbwn, 394. Andersen v. Treat, 214. HUGHES FED.PB.(2n ED.) 45 (705) 706 CASES CITED [The figures refer to pages] Andersen v. United States, 44, 47. Anderson v. Appleton, 378. Anderson v. Blakesly, 244. Anderson v. Moyer, 520. Anderson v. Sharp, 321. Anderson v. United Realty Co., 374. Anderson v. United States, 195. Andrews v. Swartz, 207. Andrews v. United States, 60, 65. Anglo-American Land Mortgage & Agency Co. v. Lombard, 14. Anglo-American Provision Co. v. Provision Co., 477, 479. Anglo-California Bank v. United States, 492. Annie Faxon, The, 492. Antigo Screen Door Co., In re, 484. A. Overholt & Co. v. German- American Ins. Co., 366. Appel, In re, 217. Appleby v. Buffalo, 540. Ar buckle v. Blackburn, 522. Arkansas v. Kansas & T. Coal Co., 236, 315. Arkansas v. Schlierholz, 502. Arkansas Southern R. Co. v. Ger- man Nat. Bank, 541. Armstrong v. Kansas City South- ern R. Co., 324, 334, 341. Armstrong Cork Co. v. Merchants' Refrigerating Co., 10. Arredondo v. Cuebas y Arrendon- do, 438. Arrowsmith v. Gleason, 224, 419. Arrowsmith v. Harinoning, 541. Ashe v. Union Cent. Life Ins. Co., 372. Ashley v. Board of Sup'rs of Presque Isle County, 287. Atchison, T. & S. F R. Co. v. Gilli- land, 266. Atchison, T. & S. F. R. Co. v. Phil- lips, 259. Atchison, T. & S. F. R. Co. v. Sow- ers, 9. Atlanta, K. & N. R. Co. v. South- ern R. Co., 303. Atlantic Coast Line R. Co. v. Dun- ning, 251. Atlantic Coast Line R. Co. v. Riv- erside Mills, 79. Audubon v. Shufeldt, 136. Austin v. Riley, 438. Auten v. United States Nat. Bank, 226, 523. Avent v. Deep River Lumber Co., 304, 367. Ayres v. Polsdorfer, 479, 519. Ayres v. Watson, 365. B Bacon, In re, 167. Bacon v. Rives, 322. Bacon v. Texas, 532, 535. Badger v. Badger, 422. Baez, In re, 214, 215. Baglin v. Cusenier Co., 242. Bailey v. Alabama, 81. Bain, Ex parte, 46, 205. Baiz, In re, 82, 387. Baker v. Grice, 210. Baker-Ricketson Co., In re, 112, 116. Baldwin v. Hale, 90. Baldwin v. Railroad Co., 253. Balkam v. Woodstock Iron Co., 14. Ball v. United States, 23, 37, 43, 54, 55. Ballew v. United States, 66. Ballinger, Ex parte, 25. Ballinger v. United States, 196. Baltimore & O. R. Co. v. Bates, 371. Baltimore & O. R. Co. y. Baugh. 19. Baltimore & O. R. Co. v. Harris, 251. Baltimore & O. R. Co. v. Inter- state Commerce Commission, 513. Baltimore & O. R. Co. v. Koontz, 251, 377. CASES CITED 707 [The figures refer to pages] Baltimore & O. R. Co. v. Mc- Laughlin, 250. Baltimore & O. R. Co. v. United States ex rel. Pitcairn Coal Co., 296. Baltimore & O. S. R. Co. v. United States, 231. Bamberger v. Terry, 399. Bankers' Mut. Casualty Co. v. Minneapolis, St P. & S. S. M. R. Co., 522. Bank of United States v. De- veaux, 249. Banks v. Manchester, 448. Bannon v. United States, 41, 45. Barber v. Pittsburg, Ft. W. & C. R. Co., 16. Bardes v. First Nat. Bank, 155, 546. Barling v. Bank, 280. Barnes v. Pampel, 483. Barnes v. Telegraph Co., 268. Barnes v. Trees, 437. Barney v. Baltimore, 244, 246, 257. Barney v. Globe Bank, 282. Barney v. Latham, 338. Barrager, In re, 141. Barringtou v. Missouri, 533. Barren v. Burnside, 305. Barrow S. S. Co. v. Kane, 261, 267, 394. Barry, In re, 387. Barry v. Mercein, 232. Barstow v. Becket, 428. Bartemeyer v. Iowa, 551, 571. Bartlett, Ex parte, 208. Bartlett v. Gates, 343. Basch, In re, 181. Bates, In re, 135. Bates Mach. Co., In re, 116. Baughman, In re, 101. Baumau v. Feist, 176. Bauman v. Ross, 200. Baumgardner v. Bono Fertilizer Co., 304. Baumgarten v. Alliance Assur. Co., of London, 361. Bauserrnan v. Blunt, 9. Bausman v. Dixou, 242. Bayonne, The, 502. Bean, In re, 101. Bear, In re, 105. Beatty v. Wilson, 396. Beck v. United States, 53. Becker, In re, 126, 175. Beckerford, In re, 89. Bedingfield, In re, 105, 106. Bein v. Heath, 419. Belden, In re, 162. Bellaire v. Baltimore & O. R. Co., 331. Benchley v. Gilbert, 349. Bender v. Pennsylvania Co., 381. Benites v. Hampton, 553. Benjamin v. New Orleans, 522. Bennett v. Butterworth, 390. Bennett v. Hoefner, 438. Benson v. Henkel, 35. Berea College v. Kentucky, 541. Bergen, In re, 416. Berkowitz, In re, 141, 217. Berry v. St. Louis & S. F. R. Co., 334. Berryman v. Board of Trustees of Whitman College, 233. Betancourt v. Association, 262. B. H. Gladding Co., In re, 165. Bigby v. United States, 185, 191. Bigler v. Waller, 554. Big Vein Coal Co. v. Read, 275, 395. Bimberg, In re, 181. Birdseye v. Shaeffer, 381. Birkett v. Bank, 180. Bishop v. Averill, 261. Black, In re, 166, 174. Blackburn v. Blackburn, 328. Blacklock v. United States, 428. Blair v. Chicago, 281, 287. Blair v. Ostrander, 415. Blake v. McKim, 322. Blake v. Pine Mountain Iron & Coal Co., 293. Blake, Moffit & Towne v. Valen- tine, 86. 708 CASES CITED [The figures refer to pages] Blalock, In re, 174, 176. Blassengame v. Boyd, 455. Blitz v. United States, 48. Block v. Darling, 230. Block v. Rice, 147. Blodgett, Ex parte, 210. Bluefields S. S. Co. v. State, 266. Blumenthal v. Craig, 245, 247. Blythe v. Hinckley, 435, 438, 476, 542. Blythe Co. v. Hinckley, 465. Board of Coin'rs of Delaware County v. Diebold Safe & Lock Co., 322. Board of Coin'rs of Kearney Co. v. Vandriss, 230, 231. Board of Com'rs of Shawnee County, Kan. v. Hurley, 132. Board of Liquidation of City of New Orleans v. United States, 297. Boardman, In re, 215. Boatmen's Bank of St. Louis v. Fritzlen, 324. Bock v. Perkins, 238. Boese v. King, 114. Boise County v. Gorman, 572. Bond v. Dustin, 402, 410. Bonin v. Gulf Co., 519. Bonner, In re, 68, 216. Bonner v. Meikle, 340. Borgmeyer v. Idler, 512. Bors v. Preston, 82, 262, 383. Boske v. Comingore, 208, 211, 510. Boston Safe Deposit & Trust Co. v. Bankers' & Merchants' Tel. Co., 461. Boston & M. R. Co. v. Gokey, 393. Boston & Oaxaca Min. Co., In re, 115. Bostwick v. Brinkerhoff, 568. Bosworth v. Hook, 455. Botts v. Hammond,- 86. Bowden v. Burnham, 284. Bowdoin College v. Merritt, 290. Bowe v. United States, 186. Bowker v. United States, 546. Boyd, In re, 166. Boyd v. Great Western Coal & Coke Co., 314. Boynton, In re, 95. Bracken v. Milner, 180. Bradshaw v. Miners' Bank, 298. Brady v. Daly, 78. Bram v. United States, 46, 58. Brandies v. Cochrane, 560. Brawner v. Irwin, 81. Braxton County Court v. West Virginia, 532. Breedlove v. Nicolet, 261. Briggs v. Neal, 454. Brinkmeier v. Missouri Pac. R. Co., 534. Britannia Min. Co., In re, 460. Broadis v. Broadis, 300. Brodbine, In re, 124. Bromley, In re, 169. Bronson v. Schulten, 413. Brooklyn City & N. R. Co. v. Na- tional Bank of Republic, 18. Brown v. Allebach, 292. Brown v. Grove, 453. Brown v. McConnell, 551, 557, 559. Brown v. Morgan, 293. Brown v. New Jersey, 13. Brown v. Smart, 90. Brown v. United States, 59. Brown v. Webster, 231. Brown, B. & Co. v. Lake Superior Iron Co., 441. Brown & Co., In re, 162. Bruce v. Manchester & K. R. Co., 228. Bruett v. Austin Drainage Exca- vation Co., 251. Brun v. Mann, 291. Brundage, In re, 142. Bruner v. Kansas Moline Plow Co., 268. Bryan v. Bernheimer, 122, 123, 126, 154. Bryant v. Swofford Bros. Dry Goods Co., 17, 146. Bryant Bros. Co. v. Robinson, 349. Bryce v. Southern R. Co., 324. Bucher v. Cheshire R. Co., 14. CASES CITED 709 [The figures refer to pages] Buck v. Felder, 318. Buck Stove & Range Co. v. Vick- ers, 547. Buckingham v. Dake, 281. Bucklin v. United States, 66, 480. Buel v. Van Ness, 530. Buffington v. Harvey, 156. Bullis v. O'Beirne, 180. Burbank Co., In re, 117. Burchett v. United States, 51. Burdick v. Dillon, 94. Burgess v. Seligman, 16. Burka, In re, 135. Burke v. 'Davis, 457. Burley v. United States, 200. Burlingham v. Grouse, 160. Burruss, In re. 207. Burton v. United States, 37, 65, 411. Bush v. Kentucky, 345. Bushnell v. Crooke Mining & Smelting Co., 579. Butler v. Gage, 571. Butler v. Goreley, 91; Butterfield v. Miller, 446. Butts, In re, 180. Byers v. McAuley, 303. Caha v. United States, 41, 46. Caldwell, In re, 163. California v. Southern Pac. Co., 386. California ex rel. Hastings v. Jackson, 536. California Nat. Bank v. Kennedy, 241. Callahan v. United States, 27. Cainden v. Mayhew, 460. Camden & S. R, Co. v. Stetson, 10, 404. Cameron v. Hodges, 359. Cameron v. United States, 141, 192. Camfield v. United States, 193. Camp, In re, 101. Camp v. Field, 380. Campbell v. Boyreau, 401. Campbell v. Johnson, 266. Campbell v. Milliken, 341. Campbell v. United States, 401, 402. Campbell Printing-Press & Mfg. Co. v. Marden, 464. Canal Bank of New Orleans v. Partee, 17. Canal & C. Streets R. Co. v. Hart, 416. Caimer v. Webster Tapper Co., 108. Capital Traction Co. v. Hof, 548. Carey v. Houston & T. C. R. Co., 503, 509. Carley, In re, 170. Carlisle v. Sunset Telephone & Telegraph Co., 353. Carll, Ex parte, 212. Carmichael, In re, 132, 174. Carolina Cooperage Co., In re, 98. Carothers v. McKinley Mining & Smelting Co., 336. Carpenter v. Cudd, 129. Carson v. Dunham, 536. Carter v. Texas, 51, 80. Carver v. United States, 57. Case v. Olney, 303. Gates v. Allen, 225, 316, ,'JL'l. C. A. Treat Mfg. Co. v. Standard Steel & Iron Co., 510. Cayce v. Southern R. Co., 334. Cedar Rapids Gaslight Co. v. Ce- dar Rapids, 534. Cella v. Brown, 517. Celluloid Mfg. Co. v. Cellonite Mfg. Co., 457. Central R. Co. of New Jersey v. Mills, 237. Central Trust Co. v. Benedict, 293. Central Trust Co. v. Bridges, 294. Central Trust Co. v. Citizens' St R. Co. of Indianapolis. 15. Central Trust Co. v. East Tennes- see, V. & G. R. Co., 295. Central Trust Co. v. McGeorge, 266. 710 CASES CITED [The figures refer to pages] Central Trust Co. v. Marietta & N. G. R. Co., 457. Central Trust Co. v. Richmond & D. R. Co., 457. Central Trust Co. v. Wabash, St L. & P. R. Co., 461. Central Trust Co. of New York v. United States Flour Mill. Co., 295. Chaffee v. Hayward, 554, 555. Chamberlain, In re, 176. Chambers v. Baltimore & O. R. Co., 540. Chantango v. Abaroa, 71. Chaplin, In Te, 133. Chapman, In re, 54, 112. Chapman v. Atlantic Trust Co., 475. Chapman v. Barney, 251. Chapman & D. Land Co. v. Bige- low, 534. Chappell, In re, 159. Chappell v. United States, 200, 202, 501, 506, 511. Charman v. Lake Erie & W. R. Co., 323. Charnley v. Sibley, 10. Chase, In re, 167. Chase v. Erhardt, 365. Chase v. United States, 189, 190. Chateaugay Ore & Iron Co., In re, 409. Chatfield v. O'Dwyer, 487. Cheatham Electric Switching De- vise Co. v. Transit Development Co., 403. Cherokee Nation v. Railroad Co., 201. Chesapeake & O. R. Co. v. Dixon, 332, 333. Chesapeake & O. R. Co. v. Mc- Cabe, 304, 373, 568. Chesapeake & O. R. Co. v. White, 374. Chesapeake & Potomac Tel. Co. v. Manning, 567. Chiatovich v. Hanchett, 329, 367. Chicago v. Mills, 501. Chicago, B. & Q. R. Co. v. United States, 71. Chicago, B. & Q. R. Co. v. Willard, 324, 333. Chicago Life Ins. Co. v. Needles, 541, 542. Chicago, R. i. & P. R. Co. v. Dow- ell, 324, 332. Chicago, R. I. & P. R. Co. v. Mar- tin, 318, 323. Chicago, R. I. & P. R. Co. v. Schwyhart, 333. Chicago, R. I. & P. R. Co. v. Swanger, 305. Chicago & N. W. R. Co. v. Ken- dall, 11. Chicot County v. Sherwood, 442. Chisholm v. Georgia, 386. C. H. Nichols Lumber Co. v. Fran- son, 263, 498. Choteau v. Marguerite, 533. Cincinnati Equipment Co. v. Deg- nan, 159. Cincinnati, H. & D. R. Co. v. Mc- Keen, 517. Cincinnati, H. & D. R. Co. v. Thie- baud, 247, 490, 508, 518. Cincinnati, N. O. & T. P. R. Co. v. Bohon, 333. Cincinnati St R. Co. v. Snell, 569. Citizens' Bank v. Cannon, 234. Citizens' Bank v. Parker, 535. Citizens' Sav. Bank v. Newbury- port, 281. Citizens' Savings & Trust Co. v. Illinois Cent. R. Co., 275. City of Da-wson v. Columbia Ave. Saving Fund, Safe Deposit, Ti- tle & Trust Co., 239. City of Detroit v. Dean, 289. City of Detroit v. Detroit City R. Co., 341, 343, 363. City of Eau Claire v. Payson, 281. City of Lincoln v. Power, 404, 405. CASES CITED 711 [The figures refer to pages] City of Manning v. Insurance Co., 413. City of Minneapolis v. Reum, 261. City of New Castle v. Postal-Tele- graph Cable Co., 358. City of New Orleans v. Benjamin, 279. City of New Orleans v. Games' Adm'r, 283. City of New Orleans v. Quinlan, 280. City of New Orleans v. Warner, 457. City of Quincy v. Steel, 290. City of Superior v.. Ripley, 282. City of Tacoma v. Wright, 342. Civil Rights Cases, 81. Claasen, In re, 40. Claff, In re, 168. Claiborne County v. Brooks, 14. Clark v. Bever, 306. Clark v. Chicago, R. I. & P. R. Co., 324, 380. Clark v. Nash, 201. Clark v. Southern Pac. Co., 244. Clark v. Wells, 379. Clarke, Ex parte, 212. Clarke v. Atlantic City, 17. Clarke v. Larremore, 151. Clearwater v. Meredith, 256. Cleveland, C., C. & I. R. Co. v. McClung, 348. Cliffe, In re, 103, 112. Clisdell, In re, 169. Clune v. United States, 65. Clyatt v. United States, 65. Cobb v. Overman, 136. Cochran v. Montgomery County, 341, 343. Cochran v. United States, 43. Cody Motors Co. v. Watten Motor Car Co., 268. Coffey v. United States, 54. Coffin v. United States, 63. Cohen v. Delavina, 428. Cohens v. Virginia, 383, 529. Coker v. Monaghan Mills, 336. Colburn v. Hill, 331. Cole, In re, 36, 179. Coleman v. United States, 185. Collin County Nat. Bank of Mc- Kinney, Tex. v. Hughes, 297. Collins v. Ashland, 245, 247, 286, 290. Collins v. Campbell, 341. Colombia v. Cauca Co., 523. Colorado Cent. Consol. Min. Co. v. Turck, 490. Columbian Equipment Co. v. Mer- cantile Trust & Deposit Co., 453. Columbia Water Power Co. v. Co- lumbia Electric St. R., Light & Power Co., 540. Columbus Iron & Steel Co. v. Kan- awha & M. R. Co., 5. Columbus S. & H. R. Co., Appeal of, 456. Columbus Watch Co. v. Robbins, 518. CoMn v. Jacksonville, 233, 498. Comitis v. Parkerson, 262. Commercial Mut. Ace. Co. v. Da- vis, 503. Commercial & R. Bank of Vicks- burg v. Slocomb, 249. Commonwealth v. Casey, 349. Commonwealth v. Kitchen, 27. Commonwealth v. Louisville Bridge Co., 365. Commonwealth of Virginia v. Bingham, 348. Commonwealth of Virginia v. De Hart, 348. Commonwealth Trust Co. v. Frick, 395. Compton v. Jesup, 291. Conley, In re, 177. Conley v. Mjathieson Alkali Works, 268, 394. Connecticut Mut. Life Ins. Co. v. Trust Co., 12. Connell v. Smiley, 338. Connolly v. Union Sewer Pipe Co., 390, 508, 513. 712 CASES CITED [The figures refer to pages] Connors v. United States, 67. Conqueror, The, 519. Conroy, In re, 168. Consolidated Fastener Co. v. Co- lumbian Fastener Co., 456. Continental Casualty Co. v. Spra- din, 231. Continental Nat. Bank of Mem- phis v. Buford, 240, 250, 490. Continental Wall-Paper Co. v. Lewis Voigiit & Sons Co., 360. Cook v. Hart, 205. Cook v. Robinson, 159. Cook v. United States, 37. Cook Co. v. Beecher, 78, 240. Cooke v. Avery, 239. Cooper v. Reynolds, 277. Corbett v. Craven, 536. Corbin v. Black Hawk County, 279. Corn, In re, 171, 177. Cornwall, In re, 138. Cosmopolitan Min. Co. v. Walsh, 509, 510. Coudert v. United States, 487. Coulter, In re, 146. Cound v. Atchison, T. & S. F. R. Co., 267. Courier Journal Job Printing Co. v. Shaefer-Meyer Brewing Co., 485. Cowell v. City Water-Supply Co., 272. Cox v/Wall, 154. Coyle & Co. v. Stern, 313. Craemer v. State, 481. Craemer v. Washington, 214. Crafts-Riordon Shoe Co., In re, 112, 152. Crain v. United States, 48, 53. Cramp & Sons Ship & Engine Bldg. Co. v. International Cur- tiss Marine Turbine Co., 470. Crawford, Ex parte, 91. Crawford v. Burke, 138, 181. Crawford v. Illinois Cent. R. Co., 324. Crawford v. Johnson, 80. Creagh v. Equitable Life Assur. Soc. of United States, 330, 372. Cresson & Clearfield Coal & Coke Co. v. Stauffer, 117. Crist, In re, 170. Cronin, In re, 106. Cross v. Burke, 202. Cross v. North Carolina, 27. Crossley v. California, 27. Crowley v. Christensen, 215. Cuddy, Ex parte, 215. Cumberland Lumber Co. v. Tunis Lumber Co., 460. Cumberland Telephone & Tele- graph Co. v. Memphis, 433. Cumming v. Board, 80. Cummings v. Chicago, 240, 511. Cunningham v. Insurance Bank, 486. Currier, In re, 140. Daigneau v. Grand Trunk R. Co., 411. Dalles & R. Ferry Co. v. Hendryx, 314. Dalton v. Milwaukee Mechanics' Ins. Co., 353. Dancel v. Goodyear Shoe Mach. Co., 366. Darling v. Berry, 88, 89. Darnell v. Illinois Cent R. Co., 317. Darnell v. Krouse, 411. Dartmouth Sav. Bank v. Bates, 415. Dauchy, In re, 171. Daugherty v. Sharp, 312. Davenport v. Cloverport, 80. Davenport v. Dodge County, 222. Davenport v. Fletcher, 558. Davidson v. Lanier, 551, 557. Davidson Bros. Marble Co. v. United States, 268. Davis v. Bessemer City Cotton Mills, 10. Davis v. Bohle, 123. CASES CITED 713 [The figures refer to pages] Davis v. Cleveland, C., C. & St. L. R. Co., 503. Davis v. Garrett, 438. Davis v. Schwartz, 454. Davis v. South Carolina, 348. Davis v. Turner, 151. Davis v. United States, 58. Dawson v. Columbia Are. Saving Fund, Safe Deposit, Title & Trust Co., 239. De Bara, In re, 68. Debs, In re, 204. Decker, Jr., & Co. v. Southern R. Co., 269, 327. Defiance Water Co. v. Defiance, 236. De Hieropolis v. Lawrence, 275. Delafield. In re, 222. De La Montanya v. De La Mon- tanya, 356. Delaware, L. & W. R. Co. v. Frank, 260. Deming v. Carlisle Packing Co., 534. Dempster, In re, 105, 126. Dennick v. Central R. Co. of New Jersey, 9. Dennis v. Alachua Co., 354. Dennison v. Brown, 342. Denny v. Pironi, 354. Denver First Nat Bank v. Klug, 475. Deputrou v. Young, 290. Deshler v. Dodge, 281. Des Moines & Mississippi Levee Dist. No. 1 v. Chicago, B. & Q. R. Co., 381. Des Moines & M. R. Co., Ex parte, 275, 395. Despeaux v. Pennsylvania R. Co., 403. Desrochers, In re, 126. Detroit v. Dean, 289. Detroit City R, Co. v. Guthard, 541. Detroit United Ry. v. Nichols, 412. Devine v. Los Angeles, 236, 240. Devoe Mfg. Co., In re, 23. Dial v. Reynolds, 431. Diamonds v. United States, 73. Dibble v. Bellingham Bay Land Co., 14. Dick v. Foraker, 275. Dietzsch v. Huidekoper, 430. Dillard v. Collins, 161. Dillon, In re, 135. Dimmick v. Tornpkins, 48L Dinet v. Delavan, 360. Dismal Swamp Contracting Co., In re, 151. District of Columbia v. Barnes, 185. Doctor v. Harrington, 249. Dodge v. Knowles, 560. Dodge v. North Hudson, 399. Dodge v. Tulleys, 259. Donnelly v. United States, 240. Donovan v. Wells Fargo & Co., 373. Doscher, In re, 158. Douglass v. Pike County, 15. Dow's Estate, In re, 176. Doyle v. Clark, 246. Doyle v. Continental Ins. Co., 305. Drainage Dist No. 19, Caldwell County, v. Chicago, M. & St. P. R. Co., 222. Dressel v. North State Lumber Co., 134. Dresser v. Edison Illuminating Co., 245. Duguid, In re, 95. Dunbar v. Dunbar, 136, 137, 138. Dunbar v. United States, 63, 66. Duncan, In re, 105, 207. Duncan v. Landis, 485. Dunlop v. United States, 44. Dunn, In re, 314, 318. Dunseath & Son Co., In re, 126. Dupree, In re, 118. Durland v. United States, 51, 55, 67. Dushaue v. Benedict, 390, 398. 714 CASES CITED [The figures refer to pages] Dvorak, In re, 168. Dwight v. Humphreys, 425. Dwight v. Merritt, 393, 394. Dwyer, In re, 98. Dygert v. Trust Co., 18. E Earling v. Ernigh, 534. Earnhart v. Switzler, 236. East Tennessee, V. & G. R. Co. v. Grayson, 335. East Tennessee V. & G. R, Co. v. Southern Tel. Co., 378. Eaton, In re, 176. Eaton v. Cleveland, St. L. & K. C. R. Co., 416. Edgington v. United States, 58, 64. Edrington v. Jefferson, 381. Edward Ellsworth Co., In re, 115. Edward P. Allis Co. v. Withla- coochee Lumber Co., 443. Edwards v. Bates Co., 231. Egan v. Chicago G. W. R. Co., 297. Egan v. Hart, 534. Eggert, In re, 160, 483. Eilenbecker v. District Court, 36. Einstein v. Georgia Southern & F. R. Co., 259. Eldred v. American Palace Car Co. of New Jersey, 438. Eldridge, In re, 139. Electric Supply Co., In re, 115. Elk Garden Co. v. T. W. Thayer Co., 275. Ellenwood v. Marietta Chair Co., 272. Elliott v. Toeppner, 129, 483, 485. Ellis v. Davis, 223. Ellison v. Louisville & N. R. Co., 341. Ellsworth Co., In re, 115. Empire Circuit Co. v. Sullivan, 419. Empire Metallic Bedstead Co., In re, 115. Empire State-Idaho Mining & Developing Co. v. Hanley, 489. Emsheimer v. New Orleans, 284. Ennis, In re, 147. Enos v. Kentucky Distilleries & Warehouse Co., 324. Equitable Life Assur. Soc. of United States v. Brown, 442. Erickson v. Hodges, 215. Erie Lumber Co., In re, 150. Erie R. Co. v. Purdy, 541. Brkel v. United States, 402. Erwin v. United States, 33. Estes v. Trabue, 555. Etheridge Furniture Co., In re, 105, 126. Ethier, In re, 162. Eustis v. Bolles, 541. Evansberg v. Insurance Stove, Range & Foundry Co., 334. Everett v. Independent School Dist. of Rock Rapids, 299. Everett v. Judson, 147. Evers v. Watson, 324. Excelsior Wooden Pipe Co. v. Pa- cific Bridge Co., 78, 237, 241, 242, 288, 501. Exploration Mercantile Co. v. Pa- cific Hardware & Steel Co., 115. Factors' & Traders' Ins. Co. v. Murphy, 163, 536. Failey v. Talbee, 441. Fair, The, v. Kohler Die & Spe- cialty Co., 78, 242, 491. Falk v. Publishing Co., 78. Fall v. Eastin, 461. Fallbrook Irr. Dist v. Bradley, 201, 535. Fanshawe v. Tracy, 428. Farmers' Loan & Trust Co. v. Northern Pac. R. Co., 296. Farmers' & Merchants' Ins. Co. v. Dobney, 540. Farmington y. Pillsbury, 287. CASES CITED 715 [The figures refer to pages] Farr v. Hobe-Peters Land Co., 281, 284, 419. Farrar v. Bernheim, 456. Farrell, In re, 91. Farrell v. O'Brien, 289, 312. Faulk & Co. v. Steiner, Lobman & Frank, 125. Faust v. United States, 44. Faxon, The Annie, 492. Fayerweather v. Ritch, 276. Fayette Title & Trust Co. v. Mary- laud P. & W. V. Telephone & Telegraph Co., 364. Fayetteville Wagon- Wood & Lum- ber Co., In re, 162. Federal Lumber Co., In re, 108. Federal Mining & Smelting Co. v. Bunker Hill & Sullivan Mining & Concentrating Co., 258, 299. 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Henarie, 339, 371. Fitzgerald v. Green, 27. Fitzpatrck v. United States, 59, 60. Fixen, In re, 125, 133. Floren v. United States, 67. Florida Cent. & P. R. Co. v. Bell, 236, 255, 489. Flower v. MacGinnis, 451. Flynn v. Fidelity & Casualty Co., 356. Foerst, In re, 143. Folsom v. Ninety-Six Tp., 15. Folsom v. United States, 517. Force v. Standard Silk Co., 19. Foreman v. Burleigh, 487. Forrest v. Safety Banking & Trust Co., 18. Forsyth v. Hammond, 14, 518, 519, 520. Forsyth v. Vehmeyer, 179. Ft. Leavenworth R. Co. v. Lowe. 26. Ft. Wayne Electric Corp., In re, 110. Foster v. Coos Bay Gas & Elec- tric Co., 324, 330. Fowle v. Park, 172. Fox v. Southern R. Co., 367, 370. Francis v. McNeal, 159. Frank v. Leopold & Feron Co.. 238. Fraser v. Jennison, 332. Freche, In re, 179. Frederic L. Grant Shoe Co. v. W. M. Laird Co., 137, 498. Freeman v. Surety Co., 267, 269. Fi eese v. Kemplay, 405. Frelinghuysen v. Baldwin, 226. 716 CASES CITED [The figures refer to pages] French v. Hopkins, 533. Freund, In re, 176. Frick v. Lewis, 261. Friedenstein v. United States, 66. Friedly v. Giddings, 414. Friedman v. Zweifler, 172. Frisbie v. United States, 45. Fritzlen v. Boatmen's Bank, 335, 369. Gableman v. Peoria, D. & E. R. Co., 242, 315. Gaddie v. Mann, 290. Gage v. Carraher, 322. Gage v. Riverside Trust Co., 262. Galveston, H. & S. A. R. Co. v. Gonzales, 267. Gammon, In re, 176. Gann v. Northeastern R. Co., 340. Garcewich, In re, 147. Gardes v. United States, 48. Garfield v. United States, 196. Garrozi v. Dastas, 317. Garry v. Jefferson Bank, 171. Gavieres v. United States, 55. Gay, In re, 101, 161. Gay v. Parpart, 558. Gay Mfg. Co. v. Camp, 457. Gaylord, In re, 176. Geer v. Mathieson Alkali Works, 334, 335. Gelpcke v. Dubuque, 15. General Electric Co. v. Hurd, 415. General Oil Co. v. Grain, 14. Generes v. Campbell, 408. George T. Smith Middlings Puri- fier Co. v. McGroarty, 306. Georgia v. Stantou, 384. Gerber, In re, 101. German Ins. Co. v. Hearne, 517. German Nat. Bank v. Speckert, 562. German Savings & Loan Soc. v. Dormitzer, 317, 318. Gerson, In re, 136. Ghost v. United States, 409. Gibson v. Mississippi, 345. Giddings v. Freedley, 414. Giles v. Harris, 512. Gillum v. Stewart, 393. Gilman v. Lockwood, CO. Girard Life Insurance, Annuity & Trust Co. v. Cooper, 455. Gladding Co., In re, 165. Glasgow v. Moyer, 203. Glass, In re, 170. Glass v. Concordia, 279. Gleason v. Florida, 572. Gleason v. Smith, 121. Glenn v. Sumner, 410. Glenny v. Langdon, 154. Glide, The, 75. Glover v. Shepperd, 376. Godchaux v. Morris, 460. Goddard v. Ordway, 561. Goins v. Southern Pac. Co., 372. Golden Rod, The, 16. Goldey v. Morning News, 379. Goldsby v. United States, 57, 63. Goodale, In re, 169. Goodman, In re, 96. Goodman v. Curtis, 484. Goodman v. Niblack, 274. Goodrich v. Ferris, 506. Good Shot v. United States, 519. Goodwin v. Fox, 12. Gordon v. Jennings, 97. Gordon v. Ware Nat. Bank, IS. Gouyet, Ex parte, 212. Grace v. American Cent Ins. Co., 5. Graham v. Swayne, 463. 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Co., 287. Oregon R. & Nav. Co. v. Balfour, 492. Oregon Short Line & U. N. R. Co. v. Skottowe, 313. O'Reilly v. Edrington, 557. Oro Water, Light & Power Co. v. Oroville, 426. Osborne, In re, 170. Osborne v. Perkins, 175, 486. Oscanyan v. Arms Co., 406. Overholt & Co. v. German-Ameri- can Ins. Co., 366. Overman Wheel Co. v. Pope Mfg. Co., 360, 365. Owens, In re, 88. Ozark Land Co. v. Leonard, 446. Pacific Coast R. Co. v. United States, 79. Pacific Live Stock Co. v. Hanley, 441. Pacific Northwest Packing Co. v. Allen, 576. Pacific R. Co. v. Missouri Pac. R. Co., 298. Pacific Steam Whaling Co. v. United States, 221, 513. Page v. Edmunds, 147. Page v. Rogers, 133. Paige, In re, 128. Palliser, In re, 36. Palliser v. United States, 36, 37. Panama R. Co. v. Napier Ship- ping Co., 519. Paquet, In re, 493. Paquete Habana, The, 472, 473, 503, 530. Parker v. Ormsby, 285. 728 CASES CITED [The figures refer to pages] Parker v. Vanderbilt, 342. Patterson, In re, 175. Patterson v. Railroad Co., 322. Pawlet v. Clark, 227. Payne v. Mies, 555. Peaslee v. Haberstro, 393. Peck, In re, 169. Peck v. Elliott, 291. Peden v. Bridge Co., 412. Peninsular Iron Co. v. Stone, 255. Penn Mut. Life Ins. Co. v. Austin, 507, 513. Pennoyer v. Neff, 277. Pennsylvania v. Quicksilver Min. Co., 386. Pennsylvania Co., In re, 339, 341, 342, 380. Pennsylvania Co. v. Bender, 342. Pennsylvania Consol. Coal Co., In re, 94. People of New York v. Bennett, 346. People of State of New York v. Bleecker St. & F. F. R. Co., 315. People's Bank of Greenville v. yEtna Ins. Co., 364. People's United States Bank v. Goodwin, 349. Perego v. Dodge, 441. Perry v. Mechanics' Mut. Ins. Co., 397. Perry Aldrich Co., In re, 94. Person v. Illinois Cent. R. Co., 323. Peters v. Gilchrist, 13. Peters v. United States, 43, 48. Petterson, Ex parte, 244. Pettibone v. United States, 25. Pettit v. Walshe, 481, 512. Pewabic Min. Co. v. Mason, 457. Phelps v. Mutual Reserve Fund Life Ass'n, 293. Phelps v. Oaks, 286. Phenix Ins. 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Walker, 336. Ransford, In re, 151. Reading Hosiery Co., In re, 135. KeugHii v. United States, 60. Heardon v. Balaklala Cousol. Cop- per Co., 399. Rector v. City Deposit Bank Co., 536, 541. Reed, In re, 176, 178. Reed v. Hardeman Co., 354. Reedy v. Western Electric Co., 437. Reichman, In re, 112. Reid Wrecking Co. v. United States, 188. Reisenberg, In re, 230. Removal Cases, 324, 354, 364. Remsen v. C. F. Blauke Tea & Coffee Co., 374. Republic of Colombia v. Cauca Co., 261. Resolute, The, 474. Rexford v. Brunswick-Balke-Col- lender Co., 470. Reynolds v. United States, 57. Rhode Island v. Massachusetts, 384. Ribas v. United States, 185. Rice v. Ames, 29, 48, 481, 512. Richards v. United States, 64. Richardson v. Shaw, 108. Richardson v. United States, 65. Rickey Land & Cattle Co. v. Mil- ler & Lux, 299. Riddle's Sons, In re, 150. Riggin v. Magwire, 137. Rike v. Floyd, 342. Riley v. Warden, 97. Ripper v. United States, 60. Risteen, In re, 435. Roach, Ex parte, 27. Roach v. Hulings, 4l?3. Robb v. Connelly, 209. Roberts v. Lewis, 398. Roberts v. Pacific & A. R. & Nav. Co., 326, 355. Roberts Co., In re, 165. Robertson v. Conway, 234. Robertson v. Perkins, 407. Robertson v. Union Potteries Co., 94. Robinson v. Anderson, 288. Robinson v. Caldwell, 478, 498. Roche, In re, 486. Roeber, In re, 146. Roger Brown & Co., In re, 162. Rogers v. United States, 45. Rogers' Mill. Co., In re, 158. Rollins Gold & Silver Min. Co., In re, 117. Romanow, In re, 105, 115. Rome Planing Mill Co., In re, 110, 112, 129. 730 CASES CITED [The figures refer to pages] Rondot v. Rogers Tp., 263. Root v. Woolworth, 292, 462. Rosen v. United States, 44. Rosenbauui v. Bauer, 222, 296. Rosencrans v. United States, 44. Rosenthal v. Coates, 34Q. Rothschild v. Knight, 540. Roundtree v. Adams Exp. Co., 251. Rouse v. Hornsby, 521. Rowland v. Biesecker, 12. Royall, In re, 209. Royea's Estate, In re, 147. Rudd v. United States, 62. Ruinbarger v. Yokum, 419. Rumsey & Sikemier Co. v. Nov- elty & Machine Mfg. Co., 114. Rural Home Tel. Co. v. Powers, 315, 358. Rutland County Nat. Bank v. Graves, 159. Rutland R. Co. v. Central Ver- mont R. Co., 532. Ryan v. Bindley, 10. Ryan v. Hendricks, 104. Ryan v. Thomas, 532. Sage v. Central R. Co., 560. Saiek v. Pennsylvania R. Co., 319. St. Anthony Falls Water Power Co. v. Board of Water Com'rs, 16. St. Clair v. United States, 59, 66, 549. St. Lawrence, The, 422. St. Louis, I. M. & S. R. Co. v. Taylor, 537. St. Louis, I. M. & S. R. Co. v. Vickers, 404. St. Louis Southwestern R. Co. v. Alexander, 394. St. Louis & S. F. R. Co. v. Cross, 250. St. Louis & S. F. R. Co. v. James, 249, 251. St. Louis & S. F. R. Co. v. Mc- Bride, 266. St. Paul, M. & M. R. Co. v. St. Paul & N. P. R. Co., 237. St. Paul & C. R. Co. v. McLean, 378. St. Paul & N. P. R. Co. v. St. Paul, M. & M. R. Co., 237, 243. Salmon & Salmon, In re, 91. Samuelsohn, In re, 141. Sanborn, In re, 163. Sanborn v. Bay, 408, 416. San Francisco Gas & Electric Co. v. San Francisco, 237, 238. Sansom v. Railroad Co., 406. Santa Clara County v. Goldy Mach. Co., 355. Sapiro, In re, 142. Sapphire, The, v. Napoleon III, 261. Sauer v. New York, 16. Savage v. Jones', 79. Savin, Ex parte, 204. Savings & Loan Soc. v. Davidson, 445. Sawyer v. United States, 60, 61. Sayward v. Denny, 538. Scanlan, In re, 98. Schatz v. Winton Motor Carriage Co., 10. Schillinger v. United States, 186. Schmechel Cloak & Suit Co., In re, 134. Schofleld v. Palmer, 226, 393. Schoolfield v. Rhodes, 390. Schroeder v. Young, 417, 461. Schrom, In re, 126. Schultz, In re, 178. Schunk v. Moliue, Milburn & Stoddard Co., 227, 231. Schwab v. Berggren, 61, 68. Schwenk & Co. v. Strang, 341, 372. Scott, In re, 142. Scott v. Armstrong, 10, 390. Scott v. Donald, 229, 230. Scott v. McNeal, 15. Scott v. Neely, 225, 316, 321, 390. Seaboard Air Line R. Co. v. Du- vall, 541. CASES CITED 731 [The figures refer to pages] Seaman v. Northwestern Mut. Life Ins. Co., 453, 459. Searles v. Jacksonville, P. & M. R. Co., 430. Searway v. United States, 58. Seattle L. S. & E. R. Co. v. Union Trust Co., 434. Security Co. v. Pratt, 355. Security Mut. Life Ins. Co. v. Prewitt, 305. Security Trust Co. v. Black Riv- er Nat. Bank, 9. Seebold, In re, 484. Seefeld v. Duffer, 16. Selvester v. United States, 66. Semniel, In re, 175. Sessler v. Paducah JDistilleries Co., 134. Seybert v. Shaniokin & Mt. C. Electric R. Co., 274, 276. Shaeffer, In re, 162. Shaffer v. Koblegard Co., 175. Shainwald v. Lewis, 217. Shane v. Butte Electric R. Co., 355. Sharon v. Hill, 26. Shattuck v. North British & Mer- cantile Ins. Co., 318, 361. Shaver v. Pacific Coast Condens- ed Milk Co., 334. Shaw, In re, 165. Shaw v. Mining Co., 267. Shaw v. United States, 58. Shea, In re, 162. Shearson v. Littleton, 256. Sheffield & B. Coal, Iron & R. Co. v. Gordon, 456. Shelp v. United States, 45, 53. Shepard v. Ada ins, 392. Shertzer, In re, 177. Shields v. Barrow, 258. Shields v. Colemau, 499. Shoemaker v. United States, 200, 201. Shulthis v. McDougal, 243, 250, 521. Sibray v. United States, 203. Sievers, In re, 123. Sigafus v. Porter, 407, 517. Silver v. Ladd, 557. Silverman, In re, 137, 168. Simmons v. United States, 62. Siinonson v. Sinsheimer, 115. Simpson v. Union Stock Yards Co., 290. Sinsheimer v. Simonson, 127. Skinner, In re, 176. Slaughter v. Glenn, 17. Slaughter v. Mallet Land & Cat- tle Co., 288. Sloan v. Lewis, 105. Sloan v. United States, 512. Sloinka, In re, 165. Smale v. Mitchell, 412. Smellie v. Southern Pac. Co., 327. Smiley v. Kansas, 13. Smith, In re, 53, 110. Smith v. Alabama, 7. Smith v. Detroit & T. S. L. R. Co., 267. Smith v. Fifield, 285. Smith v. Jennings, 533. Smith v. Lyon, 269. Smith v. McKay, 476. Smith v. Mississippi, 51. Smith v. New York, N. H. & H. R. Co., 253. Smith v. Packard, 284. Smith v. United States, 63. Smith v. Vulcan Iron Works, 576. Smith Co. v. Minnetto-Meriden Co., 19. Smith Middlings Purifier Co. v. McGroarty, 306. Smithers v. Smith, 229. Smithsonian Institution v. St. John, 533. Snare & Triest Co. v. Friedman, 19, 399. Snipes v. Southern R. Co., 19. Sonnentheil v. Christian Moerlein Brewing Co., 522. Soudan Mfg. Co., In re, 151. South Dakota v. North Carolina. 385. Southern Loan & Trust Co. v. Benbow, 162. 732 CASES CITED. [The figures refer to pages] Southern Pac. Co. v. Arlington Heights Co., 266. Southern Pac. Co. v. Bartine, 232. Southern Pac. Co. v. Da Costa, 10. Southern Pac. Co. v. Deuton, 266, 305, 440. Southern Pac. Co. v. Kelley, 413. Southern Pac. Co. v. Pool, 405. Southern Pac. R. Co. v. Temple, 438. Southern K. Co. v. Allison, 536. Southern R. Co. v. Carson, 333. Southern R, Co. v. Miller, 333, 379. Southern R. Co. v. United States, 79. Southern Realty Inv. Co. v. Walk- er, 288. Southern Steel Co., In re, 117, 135, 138. South Penn Oil Co. v. Latshaw, 409. South Penn Oil Co. v. Miller, 258. Spalding, In re, 98. Sparf v. United States, 62, 66. Speare v. Stone, 393. Speidel v. Henrici, 441. Spencer, Ex parte, 203. Spencer v. Duplan Silk Co., 490. Spencer v. Kansas City Stock- yards Co., 275. Spies v. Illinois, 572. Spreckels Sugar Refining Co. v. McClain, 478, 479, 491, 511. Stafford v. Norfolk & W. R. Co., 319. Stalker v. Pullman's Palace-Car Co., 327. Stanbrough v. Cook, 337. Standard Cordage Co., In re, 125. Standard Oil Co. of New Jersey v. United States, 195, 265. Standard Paint Co. v. Trinidad Asphalt Mfg. Co., 521, 523. Standard Sanitary Mfg. Co. v. United States, 195. Standard Stock Food Co.. v. Wright, 79. Stanley v. Schwalby, 531. Stanly County v. Coler, 13. Stanton v. Alabama & C. R. Co., 456. Starr v. United States, 30, 59, 62. State v. White River Val. R. Co., 311. State Ins. Co., In re, 374. State Nat. Bank v. Syndicate Co., 91. State Nat. Bank of Denison v. Eureka Spring Water Co., 280. State of Alabama v. Wolffe, 346. State of Arkansas v. Kansas & T. Coal Co., 236, 315. State of Arkansas v. Schierholz, 502. State of California v. Southern Pac. Co., 386. State of California ex rel. Has- tings v. Jackson, 536. State of Delaware v. Emerson, 350. State of Georgia v. Stanton, 384. State of Indiana v. Lake Erie & W. R. Co., 296, 311. State of Indiana ex rel. Stantou v. Glover, 247. State of Kansas v. Colorado, 8, 385. State of Kansas v. United States, 386. State of Kentucky v. Powers, 344. State of Louisiana v. Mississip- pi, 384. State of Louisiana v. Texas, 386. State of Louisiana ex rel. Hubert v. New Orleans, 535. State of Minnesota v. Brundage, 209, 210. State of Minnesota v. Northern Securities Co., 258, 313, 358. State of Missouri v. Illinois, 385. State of Missouri ex rel. Hill v. Dockery, 533. State of Nebraska, Ex parte, 322. State of New Hampshire v. Loui- siana, 385. CASES CITED [The figures refer to pages] 733 State of New York v. Eiio, 210. State of North Carolina v. Gos- uell, 350. State of Pennsylvania v. Quick- silver Min. Co., 386. State of South Dakota v. North Carolina, 385. State of Tennessee v. Davis, 236, 347, 348. State of Tennessee v. Qulntard, 460. State of Tennessee v. Union Plant- ers' Bank, 312. State of Texas v. White, 384. State of Virginia v. Paul, 347, 349. State of Virginia v. Rives, 344. State of Virginia v. West Vir- ginia, 385. State of Wisconsin v. Pelican Ins. Co., 383. Staunton v. Wooden, 153. Steam Vehicle Co. of America, In re, 150. Steele v. Culver, 324. Steele v. United States, 186. Steers v. United States, 59, 404. Stegner v. Blake, 451. Stein, In re, 95. Steiuman v. United States, 54. Stephens v. Merchants' Nat. Bank of Aurora, 129. Stephens v. Smatt, 289. Stern, In re, 137. Stern v. Paper, 160. Stevens v. Fuller, 204. Stevens v. Missouri, K. & T. R. Co., 451. Stevens v. Nichols, 353. Stevenson, In re, 118. Stevenson v. Illinois Cent R. Co., 332, 373. Stevenson v. United States, 66. Stewart v. Dunham, 291. Stewart v. Masterson, 557. Stewart v. Morris, 11. Stillman v. Combe, 292. Stimosn v. United Wrapping Much. Co., 335. Stone v. South Carolina, 332, 373, 374. Stone v. United States, 191. Storti v. Massachusetts, 207, 216. Strauder v. West Virginia, 344. Strauser v. Chicago, B. -& Q. R. Co., 319. Streeter v. Jefferson County Nat. I'.ank, 133. Strc-tton v. Rudy, 215. Stroheim v. Deimel, 416. Strout v. United Shoe Machinery Co., 295. Stuart v. Easton, 263. Stuart v. Gay, 460. Stuart v. St. Paul, 438. Stntsnian County, In re, 220, 221. Sulxer v. Watson, 402. Superior v. Ripley, 282. Swafford v. Templeton, 241. Swan, In re, 213. Swarts v. Hammer, 163. Swift v. Tyson, 18. Symonds v. St. Louis & S. E. R. Co., 319. Tacoma v. Wright, 342. Taft, In re, 485. Talbot v. First Nat. Bank, 537. Taylor, In re, 103, 129, 171. Taylor v. Easton, 464. Teller v. United States, 427. Tennessee v. Davis, 236, 302, 347, 348. Tennessee v. Quintard, 460. Tennessee v. Union & Planters' Bank, 312. Terlinden v. Ames, 204. Terrell v. Allison, 462. Terry, In re, 214, 215. Tevis v. Palatine Ins. Co. of Lon- don, Eng., 367. Texas v. Day Land & Cattle Co., 317. 734 CASES CITED [The figures refer to pages] Texas v. Galnes, 345. Texas v. White, 384. Texas Co. v. Central Fuel Oil Co., 266, 274, 276. Texas & P. R. Co. v. Cody, 314. Texas & P. R. Co. v. Cox, 237, 315. Texas & P. R. Co. v. Eastin & Knox, 304, 314, 373. Texas & P. R. Co. v. Howell, 522. Texas & P. R, Co. v. Nelson, 399. Texas & St. L. R. Co. v. Rust, 376. Thiede v. Utah, 64. Thorn v. Pittard, 409. Thomas v. Iowa, 537. Thomas v. Loney, 27. Thomas v. Ohio State University, 250. Thomas v. Taylor, 241. Thompson, In re, 98, 154. Thompson v. Searcey County, 14. Thompson v. United States, 53, 55. Thomson v. Elton, 280. Thomson v. Wooster, 422, 437. Thorndyke v. Gunnison, 408. Three Friends, The, 72. Thurber v. Miller, 337. Thurmond v. Chesapeake & O. R. Co., 441. Tierney v. Helvetia Swiss F. I. Co., 267. Tiffany v. La Plume Condensed Milk Co., 93, 94. Tiffany v. Lucas, 108. Tilden, In re, 164. Tinker, In re, 174, 179. Tinker v. Colwell, 174, 179. Title Guaranty & Surety Co. v. Guarantee Title & Trust Co., 164. Todd v. United States, 30, 32. Toledo, St. L, & W. R. Co. v. Reardon, 410. Tomato Catsup Cases, 437. Tomlinson Co., In re, 114. Tom Wah v. United States, 32. Topliff v. Topliff, 456. Toranses v. Melsing, 577. Torchia, In re, 162. Torrence v. Shedd, 331. Torrent v. S. K. Martin Lumber Co., 376. Tortat v. Hardin Min. & Mfg. Co., 368. Town of Martinton v. Fairbanks, 549. Tracy v. Morel, 326, 368. Travelers' Protective Ass'n v. Gill- bert, 413. Travis County v. King Iron Bridge & Mfg. Co., 493. Treat Mfg. Co. v. Standard Steel & Iron Co., 510. Tremper v. Schwabacher, 318. Tripp v. Santa Rosa St. R. Co., 555. Troy Bank v. G. A. Whithead & Co., 233. T. S. Faulk & Co. v. Steiner, Lob- man & Frank, 125. Tua v. Carriere, 91. Tubman v. Baltimore & O. R. Co. 413. Tumlin v. Bryan, 158. Tupper, In re, 112, 113. Turner v. Richardson, 540. Twin Falls Canal Co. v. Foote, 348. Tyler, Ex parte, 294. Tyler v. Judges of Court of Regis- tration, 532. Tyler v. Savage, 424. u Ughbanks v. Armstrong, 13. Ullrich v. New York, N. H. & H. R. Co., 319. Union Bridge Co. v. United States, 505. Union Nat. Bank v. Miller, 82. Union Pac. Co. v. Botsford, 10. Union Pac. R. Co., In re, 109. Union Pac. R. Co. v. Callaghan, 407. CASES CITED 735 [The figures refer to pages] Union Pac. R. Co. v. Harris, 237, 522. Union Pac. R. Cc. v. Yates, 11. Union Terminal R. Co. v. Chicago, B. & Q. R. Co., 324. Union Trust Co., In re, 146, 162. Union & Planters' Bank v. Mem- phis, 478. United Railroads of San Francis- co v. San Francisco, 428. United States v. Allred, 30. United States v. American Bell Tel. Co., 487, 491. United States v. American Tobac- co Co., 195. United States v. Ames, 212. United States v. Arwo, 37. United States v. Baltimore & O. R. Co., 388. United States v. Barber, 505. United States v. Barnhart, 67. United States v. Baumert, 29. United States v. Beaty, 200. United States v. Bellingham Bay Boom Co., 240. United States v. Berry, 47. United States v. Bevans, 25. United States v. Biggs, 505. United States v. Borger, 53. United States v. Brazeau, 43. United States v. Brighton Ranch Co., 192. United States v. Brod, 176. United States v. Bromley, 349. United States v. Brooke, 395. United States v. Buffalo Pitts Co., 185. United States v. Burchard, 186. United States v. Burr, 29. United States v. Collins, 29. United States v. Congress Const Co., 268, 503. United States v. Conrad, 44. United States v. Cook, 43. United States v. Corbett, 505. United States v. Cornell, 50. United States v. Cornell Steam- boat Co., 186. United States v. Coudert, 487. United States v. Cruikshank, 42. United States v. Curtis, 50. United States v. Davis, 190. United States v. Dawsou, 37. United States v. Delaware, L. & W. R. Co., 47. United States v. Doe, 30. United States v. Dunbar, 29. United States v. Eaton, 25. United States v. E. C. Knight Co., 194. United States v. Farrington, 33. United States v. Fero, 43, 47. United States v. Fox, 88. United States v. Freed, 45. United States v. Gale, 52. United States v. Gettysburg Elec- tric R. Co., 201. United States v. Great Falls Mfg. Co., 185. United States v. Greathouse, 187. United States v. Greene, 32, 35. United States v. Grizzard, 200. United States v. Hammond, 486. United States v. Harden, 33. United States v. Harsha, 189, 191, 487, 518. United States v. Hill, 491. United States v. Holt, 63. United States v. Hopewell, 492. United States v. Homer, 34, 36. United States v. Hudson, 5, 6. United States v. Hughes, 32. United States v. Hyams, 189. United States v. Jahn, 477, 492. United States v. Joint Traffic Ass'n, 194. United States v. Jones, 185, 201. United States v. Judges of Unit- ed States Court of Appeals, 493. United States v. Karlin, 35. United States v. Keitel, 505. United States v. Kelly, 191. United States v. Kilpatrick, 52. United States v. Larkin, 475, 478. United States v. Laws, 41. United States v. Linuier, 46. 736 CASES CITED [The figures refer to pages] United States v. Louis, 32. United States v. Lynah, 186. United -States v. Mackoy, 77. United States v. Mann, 70. United States v. Martin, 25, 32. United States v. Mills, 42. United States v. Morgan, 186. United States v. Noelke, 44. United States v. Northern Secu- rities Co., 195. United States v. Norton, 349, 491. United States v. O'Neill, 201. United States v. Osborn, 192. United States v. Palmer, 186. United States v. Pena, 553. United States v. Penn, 27. United States v. Peters, 48. United States v. Peterson, 25. United States v. Phillips, 555. United States v. Press Pub. Co., 26, 27. United States v. Price, 35. United States v. Raley, 43. United States v. Reading Co., 195. United States v. Rimer, 519. United States v. Rindskopf, 77. United States v. Rodger s, 25. United States v. Rogers, 25. United States v. Sanges, 509. United States v. Sauer, 29, 32. United States v. Sayward, 225. United States v. Scott, 47. United States v. Severens, 493. United States v. Shapleigh, 73. United States v. Smith, 32, 49. United States v. Society Anony- me Des Anciens Establisse- ments Cail, 186. United States v. Southern Pac. Co., 274. United States v. Spintz, 47. United States v. Stevenson, 505. United States v. Stone, 47. United States v. Stowell, 73. United States v. Swift, 55, 189. United States v. Texas, 386. United States v. The Three Friends, 72. United States v. Tom Wah, 32. United States v. Trans-Missouri Freight Ass'n, 194. United States v. Tureaud, 49. United States v. Union Pac. R. Co., 195. United States v. United States Fidelity & Guaranty Co., 393. United States v. Upham, 44. United States v. Van Duzee, 50. United States v. Watchorn, 214. United States v. Watson, 44. United States v. Williams, 464. United States v. Winslow, 52, 504. United States v. Wood, 45. United States v. Yarborough, 35. United States v. Zarafonitis, 29. United States v. Zucker, 57, 71. United States Fidelity & Guaran- ty Co. v. Bray, 546. United States Fidelity & Guaran- ty Co. v. United States, 226, 238, 247. United States Mut Ace. Ass'n v. Barry, 410. Upshur County v. Rich, 221. Utah-Nevada Co. v. De Lamar, 317. Vacuum Cleaner Co. v. Platt, 493. Van Brimmer v. Texas & P. R. Co., 319. Vance v. Vandercook Co., 229. Van De Mark, In re, 145. Van Doren v. Railroad Co., 399. Van Duzee v. United States, 50. Vane v. Newcombe, 97. Van Emon v. Veal, 117. Van Wagenen v. Sewall, 498. Vattier v. Hinde, 418. Venable v. Richards, 348. Vicksburg Waterworks Co. v. Vicksburg, 239. Village of Norwood v. Baker, 238. Viola, The, 188. Virginia, In re, 80, 212. Virginia v. Paul, 347, 349. Virginia v. Rives, 344. CASES CITED [The figures refer to pages] 737 Virginia v. West Virginia, 385. Virginia-Carolina Chemical Co. v. Home Ins. Co., 298. Von Schroder v. Brittan, 446. W Wabash R. Co. v. Flannigan, 534. Wabash R. Co. v. Pearce, 537. Wabash Western R. Co. v. Brow, 379. Wade v. Travis County, 15. Wagner v. Drake, 431. TVaite v. Santa Cruz, 229, 284, 287. Wakefield, In re, 97, 98. Walden v. Skinner, 259. Waldron v. Waldron, 408. Wales v. Whitney, 203, 204. Walker v. Collins, 313. Walker v. Monad Engineering Co., 392. Walker v. Powers, 279. Wall v. Cox, 154. Wallenburg v. Missouri Pac. R. Co., 262, 355. Walrath, In re, 94, 102. Walter v. Northeastern R. Co., 234. Walworth v. Cook Co., 428. Ward, Ex parte, 206. Ward v. Congress Const Co., 349. Warner v. Fowler, 349. Warner v. New Orleans, 516. Warner v. Searle & Hereth Co., 523. Warner v. Spooner, 131. Warth, In re, 138. Washburn v. Pullman's Palace- Car Co., 297. Washburn & Moen Mfg. Co. v. Re- liance M. Ins. Co., 18. Waterloo Organ Co., In re, 163. Waterman v. Canal-Louisiana Bank & Trust Co., 221, 224, 257. Watkins v. King, 479. Watson v. Bonfils, 244. Watts, In re, 430. Waxelbaum, In re, 94, 102. Wayman v. Southard, 422. HTTQHES FED.PR.(2o ED.) 47 Wayt v. Standard Nitrogen Co., 367. Webb v. York, 481. Webster v. Oliver Ditson Co., 437. Wecker v. National Enameling & Stamping Co., 324. Wedding v. Meyler, 532. Weir v. Rountree, 251. Weissman, In re, 163. Weitzel, In re, 95. Werckmeister v. American To- bacco Co., 78. Werner v. Murphy, 232. Wesson, In re, 172. West v. Barnes, 550. West v. Cabell, 30. West v. East Coast Cedar Co., 414. West v. Louisiana, 238. West v. Smith, 398. West Co. v. Lea, 108, 109, 114. Western Assur. Co. v. Polk, 409. Western Dredging & Improvement Co. v. Heldmaier, 408. Western Inv. Co., In re, 121. Western Union Tel. Co. v. Ann Arbor R. Co., 236. Western Union Tel. Co. v. Burris, 19. Western Union Tel. Co. v. Call Pub. Co., 8. Western Union Tel. Co. v. Crove, 570. Western Union Tel. Co. v. Trapp, 225. Westheider v. Railroad Co., 253. Weston v. Charleston, 222. West Virginia v. King, 303. Wetmore v. Ryrner, 503. W. G. Coyle & Co. v. Stern, 313. Wheaton v. Peters, 6. Wheeler v. New York, N. H. & H. R. Co., 238. Wheeler v. Walton & Whann Co., 435. Wheless v. St Louis, 227, 233. Whitaker v. Pope, 397. Whitcomb v. Suiithson, 370. White v. Ewing, 292. 738 CASES CITED [The figures refer to pages] White v. Schloerb, 124, 431. White v. United States, 63, 67. White v. Van Horn, 405. Whitehead v. Shattuck, 224. Whitelaw, In re, 431. Whitener, In re, 486. Whitney v. Dick, 213, 493. Wiborg v. United States, 59. Wiener & Goodman Shoe Co., In re, 136. Wilbur v. Red Jacket Consol. Coal & Coke Co., 356. Wilcox & Gibbs Guano Co. v. Phoenix Ins. Co., 361. Wild & Co. v. Provident Life & Trust Co., 134. Wiley v. Sinkler, 230, 510. Wilkes County v. Coler, 13, 15. Wilkins v. United States, 46. Wilkinson v. Dobbie, 125. William Cramp & Sons Ship & En- gine Bldg. Co. v. International Curtiss Marine Turbine Co., 470. Williams, In re, 94, 485. Williams v. Bankhead, 258, 259. Williams v. Bruffy, 529, 569, 570. Williams v. City Bank & Trust Co., 289. Williams v. Heard, 148. Williams v. Louisiana, 535. Williams v. Mississippi, 81. Williams v. Nottawa Tp., 287. Williams v. United States, 45, 47, 61. Williamsburg Knitting Mill, In re, 146. Wilson, Ex parte, 40, 49, 153. Wilson v. Merchants' Loan & Trust Co., 402, 549. Wilson v. Nelson, 111, 113. Wilson v. New England Nav. Co., 403. 'Wilson v. Oswego Tp., 335. Wilson v. United States, 59, 62. Winans v. Attorney General, 261. Wind River Lumber Co. v. Frank- fort Marine, Ace. Plate Glass Ins. Co., 328. Winn, In re, 296, 313. Winston v. United States, 68. Wisconsin v. Pelican Ins. Co., 383. Wisner, In re, 5, 321, 381. Woldson v. Larson, 19. Wolf & Levy, In re, 150. Wolfe v. Hartford Life & Annuity Ins. Co., 245. Wolff v. Archibald, 353. Wolff & Co. v. Choctaw, O. & G. R. Co., 237. Wollock, In re, 179. Wong Heuug v. Elliott, 482. Wong Him v. Callahan, 437. Wood, In re, 35, 210. Wood v. A. Wilbert's Sons Shingle & Lumber Co., 156. Woodbury v. Allegheny & K. R Co., 461. Woods, In re, 518. Woodside v. Beckham, 229, 287. Wooster v. Blake, 442. Worcester v. Georgia, 551, 552. Worcester County, In re, 484, 486. World's Columbian Exposition v. United States, 489. Worsham, In re, 94. Wright, In re, 139, 182. W. W. Montague & Co. v. Lowry, 195. Wyat v. Standard Nitrogen Co., 367. Wyllie, In re, 101. Wynkoop - Hallenbeck - Crawford Co. v. Gaines, 524. Wynne v. United States, 25. Yazoo & M. R. Co. v. Adams, 540. Yeager, In re. 101. Yoke Vitrified Brick Co., In re, 165. York Silk Mfg. Co., In re, 135. Youtsey v. Hoffman, 335. Yulee v. Vose, 371. Zarafonitis v. United States, 29. Zavelo v. Reeves. 135, 536. Zebert v. Hunt, 362. INDEX [THE FIGUBES BEFEB TO PAGES] A ABATEMENT, Plea to Indictment, 51. ABSENT PARTIES, Jurisdiction where parties not within district, 256, 273. Service of process, 276. ACTION AT LAW, See Common-Law Procedure. ADEQUATE REMEDY AT LAW, Effect on jurisdiction of equity, 418. ADMIRALTY, Jurisdiction of district court, 74-76. Review in circuit court of appeals, 492, 578. AD QUOD DAMNUM, See Condemnation Proceedings. ALIENS, Allegation of, in pleadings, 263. Controversies between, no federal jurisdiction, 262, 326. Controversies with citizens, jurisdiction of, 261, 326. Suits by, district court jurisdiction, 82. Suits against, locality, 267. See District Court; Removal of Causes. AMENDMENT, Answers in equity, 448. Bills in equity, 442. Indictments, 46. Petitions in bankruptcy, 103. For removal from state court, 355. Pleadings at law, 398. Process, 393. Verdict, 411. . AMOUNT IN CONTROVERSY, See District Court; Injunction. HUGHES FED.PB.(2o ED.) (739) 740 INDEX [The figures refer to pages] ANCILLARY JURISDICTION. Compelling obedience to orders, 461-462. Cross-bills, 299. Enjoining judgments or other proceedings, 297. Incidental to main suit, 234, 290-300. Independent of parties or amount, 291-292. . In general, 290-300. Mandamus, 296. Property in several districts, 295. Restitution after reversal of money collected on decree, 462. Scire facias, 297. Service of process, 435. ANSWER, In equity, 444. To interrogatories, 426. ANTI-TRUST, See Monopolies. APPEAL AND ERROR, Appeal, allowance of, 560, Supersedeas on, 561. Takes up law and fact in other than common-law cases, 558. Assignment of errors, 552. Certificate as method of, from circuit court of appeals, 563. Form and requisites of, 514. Certiorari as method of, from circuit court of appeals, 564. Circuit court of appeals, review by, 574. Of certain interlocutory orders, 575. Process of, 576. Citation, issue and service of, 554. Necessary on writ of error, 555. Not necessary on appeal in open court, 560. Courts of, 466. Supreme court, review by, 544. Final orders only, 545. Time limitations on, from district court, 544, 575. From circuit court of appeals, 561. From state courts, 567. Trial, in appellate court, 577. Briefs, 578. Further proof, 577. Writ of error, form and issue of, 549, 570. Parties to, 555. Return of, 552, 572. Supersedeas and bond, 556, 572. Takes up law questions in law cases, 547, 565. To state courts, 567. INDEX 741 [The figures refer to pages] APPEARANCE, Filing petition to remove not a general, 379. State laws as to, in federal courts, 396. Waives privilege of being sued only in district of residence, 265. ARGUMENT, On appeal or error, 578. ARREST, In criminal cases, 29. Of judgment, 67, 412. See Ne Exeat ASSIGNMENT, As affecting right to bring suit In circuit court, 278. As affecting right to remove suit from state court, 321. Colorable, to confer jurisdiction, 228, 286. ASSIGNMENT OF ERRORS. On appeal or writ of error, 552. ATTACHMENT, Not sustainable unless defendant personally served with process, 275, 395. State laws of, in federal courts, 394. B BANKRUPTCY, Acts of, admission of insolvency, 116. By corporations, 116. Assignments or receiverships, 113, 158. Fraudulent transfers, 107, 151, 157. Illegal preferences, 109, 110, 134, 148, 157. Adjudication, 102, 130, 152. Circuit court of appeals, review by, 483. Courts of, 92, 156. Jurisdiction of suits attacking illegal transfers, 155. Creditors, debts provable, nature, 135. Alimony, 136. Annuities, 136. Contracts, 136-137. Fines, 135. Meeting of, 131. Outlawed debts, 138. Proof of claims, 131. Torts, 137-138. Discharge, application for, 167. Burden of proof, 170. Collateral weight of, 172. Debts unaffected by, 178. 742 INDEX [The figures refer to pages] BANKRUPTCY Continued, Grounds for opposing, 172-178. Opposition to, 1G9. Revocation of, 181. Examination of bankrupt, 140. Process to secure attendance of, 141. Exemption, how set apart, 165. Insolvency, when material element of act of bankruptcy, 109, 113, 115. Meaning of, 158. Insurance, when passes to trustee, 160. Legislation on, constitutionality of, 87. Construed liberally as remedial, 86. Effect on state insolvent laws, 90. History of, 83. Policy of, 84. Petition, defendants to, 106. Defense, how and by whom made, 126. Dismissal of, 106. Limitation on filing, 117. Partnership, 101. Process on, 119. Requisites of, involuntary, 103. Voluntary, 99. Warrant of seizure on, 122. Preference as act of, 109, 110. As affecting proof of claim, 131-134. When voidable, 148, 157. Proceedings in, locality of, 92. Corporations subject to, 98. Decedents, 98. Parties to, voluntary, 95. Involuntary, 96. Wage earners and farmers, 97. Receiver, when appointed, 124. Powers of, 125. Trial, burden of proof, 129. When by jury, 128. Trustee, collection of assets, 153. Distribution of estate, priorities, 163. Election, 144. Interest in rights of action, 161. Power of sale, 161, 460. Power to attack preference, 148, 154. Property passing to, 147, 160, 161. Recording adjudication, 152. Title, 145. INDEX 743 [The figures refer to pages] BILL, In equity, 424. BILLS OF EXCEPTION, In civil cases, 407. In criminal cases, 63. When federal question raised by, 537. BILLS OF REVIEW, Decrees in equity, 4C4. BRIEFS, On appeal or error, 578. c CERTIFICATE, As method of appeal from circuit court of appeals to supreme court, 563. Form and requisites, 516. As method of sending up jurisdictional questions, 498. Form and requisites, 498. See Circuit Court of Appeals ; District Court ; Supreme Court. CERTIORARI. As method of appeal from circuit court of appeals to supreme court, 518, 564. See Circuit Court of Appeals ; Supreme Court. CHANCERY, See Equity. CHARGE, To jury, in civil cases, 404. In criminal cases, 63. CHINESE EXCLUSION LAWS, Jurisdiction of suits concerning, 197. CIRCUIT COURT OF APPEALS, Auxiliary writs, issue by, 493. Bankruptcy cases, when reviewable by, 482. By appeal or writ of error, 485. By supervisory review in matters of law, 483. Criminal jurisdiction, 480. Finality of decisions, 488. Admiralty cases, 492. Citizenship cases, 488. Criminal cases, 492. Patent cases, 490. Revenue cases, 491. Habeas corpus appeals, 481. Interstate commerce commission cases, 488. 744 INDEX [The figures refer to pages] CIRCUIT COURT OF APPEALS Continued, Jurisdiction in general, cases excepted from, 473. Constitutional questions, when, 478. Jurisdictional questions, when, 474-8. No monetary limit, 472. Subjects of, 472. Organization of, 469. Review by, 574. Review of by supreme court, 561. Methods of, 561-6. Special court, review of, decisions, 488, 577. United States, claims against, 487. Suits by, 487. See Appeal and Error ; Supreme Court. CITATION, Issue and service of, 554. Necessary on writ of error, 555. Not necessary on appeal in open court, 560. CITIZENSHIP, Meaning as affecting jurisdiction, 243. Residence not its equivalent, 245. State not a citizen, 246. See Corporations; District Court; Removal of Causes. CIVIL RIGHTS, Violation of, removal of cause for, 343, 363. Suits for, 80. COMMERCE COURT, Jurisdiction and organization, 388. Statute abolishing, 701. COMMON LAW, No common law of United States, 5, 24. COMMON-LAW PROCEDURE, Equitable defenses not permitted in, 390. Equitable titles, suit not sustainable on, 389. Law and equity distinction preserved, 389. Power of federal courts to regulate by rule, 391. State practice, how far adopted, 391. Appearances, 396. Arrest of judgment, 412. Attachments, 394. Bills of exception, 407. Continuances, 399. Evidence, 402. Execution, 376. Instructions to jury, 404. INDEX 745 [The figures refer to pages] COMMON-LAW PROCEDURE Continued, Judgment and reopening of, 412. Jury and waiver of, 400. New trial, 411. Parties, 396. Pleadings and amendments of, 397. Process and amendment of, 392. Trial, 400. Verdict, 410. COMPLAINT, In criminal cases, 28. CONDEMNATION PROCEEDINGS, District court jurisdiction of, 198. Federal statutes authorizing, 198. How far a suit, 222, 306. Procedure, 198-202. Public use, 201. CONSTITUTION, Portions quoted. Article 3, 2, par. 1 4. Article 3, 2, par. 2 495. Amendment 7 547. CONTINUANCE, A matter of discretion, 61, 400. COPYRIGHTS, Jurisdiction of suits concerning, 77. CORPORATIONS, Admissions of insolvency, by whom made in bankruptcy cases, 116. Averment of citizenship and residence, 249, 359. Cannot be required to waive right of removal, 305. Citizen of state first creating, 248-251. Consolidations, 253. Effect of legislation of two states, 251-255. Of congressional legislation, 237, 313. COUNTERCLAIM, As affecting amount of matter in dispute, 230. On suits against United States, 186. COUNTS, In indictment, 46. COURT OF CLAIMS, Organization and jurisdiction, 388. Review of decisions, 527, 567. Suits against United States, concurrent jurisdiction. 187. 746 INDEX [The figures refer to pages] COURT OF CUSTOMS APPEALS, Organization and jurisdiction, 388. CRIMES, District court jurisdiction over, 24. Federal jurisdiction over, how far exclusive, 26. Infamous, if punishable by confinement for term of years, 40. Locality as affecting federal jurisdiction over, 25. Place of commission, 35-38. CRIMINAL PROCEDURE, Complaint before commissioner, 28. Defense, 50. Arraignment and plea, 53. Compulsory process for witnesses, 33, 55. Demurrer, 52. Former jeopardy, 53, 54. Furnishing copy of indictment and lists of jurors and wit- nesses, 50. Motion to quash, 51. Plea in abatement, 51. Indictment, counts to, 46. Court to try, 41. Finding of, 41. Not amendable, 46. Requisites of, 42. When necessary, 40. Information, 49. Judgment and sentence, 67. Motion in arrest of judgment, 56, 67. Place of trial, 34. Preliminary examination, 30, 33. Trial and incidents, 55. Bills of exception, 61, 63. Evidence, accused testifying, 55, 58, 59. Confronting with witnesses, 55. Presumption of innocence, 58. Instructions to jury, 56, 62. New trials, 67. Verdict, 65. Review by circuit court of appeals or supreme court, 52, 480, 504. Warrant of arrest, how issued, 29. Warrant of removal for trial, 33. CROSS-BILL, Jurisdiction, 299. CUSTOMS, Jurisdiction of suits, 77, 491. Removal of suits against officers, 346. INDEX 747 [The figures refer to pages] D DEATH, State statutes giving remedy for, enforced in federal courts, 9. DE BENE ESSE, Depositions, 402, 450. DEBENTURES, Jurisdiction of suits on, 80. DECREE, Finality of for appeal, 545, 561, 567, 568, 575. Dismissing as to one defendant only not final, 562. Must settle principles and leave only ministerial acts, 545. Remanding removed case not final, 381, 561. Reversing and remanding for further proceedings not final, 515, 516, 562. Form of, 458. What injunction and receivership orders appealable, though not final, 575. See Equity Procedure. DEFAULT, Taking bill in equity ,pro conf esso, 436. DEMURRER, In equity, abolished, 439. To indictment, 52. DEPOSITIONS, Adoption of state method of taking, 403, 450. In common-law cases, 402. In equity cases, 450. DISCOVERY, Interrogatories annexed to bill in equity, 426. DISTRICT COURT, Admiralty, jurisdiction of, 74-76. Aliens and consuls, jurisdiction of suits, 82. Ancillary jurisdiction of, 234, 290. Assignment as affecting right to sue in, 278. Assignee, meaning of, 282. Choses in action, 281. Corporate securities, 280. Right to remove, how affected by, 321. Bankruptcy, jurisdiction of, 83. Chinese exclusion laws, 197. Citizens and aliens, controversies between, 260. Controversies between aliens, no jurisdiction, 262. Pleading must show alienage, 263. 748 INDEX [The figures refer to pages] DISTRICT COURT Continued, Citizenship as affecting jurisdiction, 243. Actual litigant, not beneficiary, governs, 246. Corporations, 248. District of Columbia, inhabitant of not citizen of a state, 244. Jurisdictional meaning of, 243. Parties, formal or necessary, 255. Plurality of litigants, 255. Territorial inhabitant not citizen of state, 244. Civil original jurisdiction of, elements, 218. Civil rights acts, suits under, 80, 343. Colorable attempts to confer jurisdiction, 285. Assignment of cause of action, 286, 321. Bald assertion of federal question, 288. Change of citizenship, 286. Excessive claim, 228. Improper joinder of parties, 286. Composition of, judges holding, 23. Condemnation proceedings, jurisdiction of, 198. Criminal jurisdiction of, 24. Customs, suits under, 77. Debentures, suits under, 80. District of suit, 264. Absent defendants, claims against property of, 271, 273. Procedure on, 277. Publication, 277. Contractors on public works, 268. Defendant's district ordinarily, 264, 267. Defendants of different districts, 270. Employer's liability act, suits under, 268, 318. Plaintiff's district, when, 264, 268. Plurality of litigants as affecting, 269. Requirement as to district waivable, 265. Surety company suable wherever bond given, 268. Federal question as conferring jurisdiction, 235, 309. Plaintiff's pleading must show, 236, 312. Habeas corpus, jurisdiction in, 202. Immigration laws, suits under, 193. Indians, allotments of land, 196. Internal revenue, suits under, 77. Interstate commerce act, suits under, 79, 398. Commerce court jurisdiction transferred to, 388, 701. Jurisdiction once vested unaffected by subsequent changes, 247. 286. Land grants of different states, 226. INDEX 749 [The figures refer to pages] DISTRICT COURT Continued, Matter in controversy as affecting jurisdiction, 227. Ad damnum clause as showing, 229. Amount directly involved in pending suit, 227-228. Amount recoverable on face of declaration, 229, 234. Colorable attempts to show, 228. Counterclaim as affecting, 230. Equity suits asking special relief, 232. Interest excluded, 231. Joint or several interests as affecting, 233. Must be capable of money estimate, 231. Not affected by claim being barred by limitations, 230. Plurality of parties as affecting, 233. Monopolies, suits against, 194. National banks, suits by or against, 81, 240. Nature of jurisdiction, 24. Ne exeat, right to issue, 216. Partition suits where United States part owners, 196. Patent, copyright and trade-mark, suits under, 77. Penalties and forfeitures, jurisdiction, 69. Attempts to defraud government, 73. Nature, whether civil or criminal, 70. Procedure on, 70-73. Remission of, 73. Postal laws, suits under, 77. Public lands, abatement of unlawful inclosures, 192. Removal of causes, jurisdiction of, 301. Slave trade, suits under, 76. Suits, character of necessary to jurisdiction, 220, 311. At law, 223, 311. In equity, 223, 311. Taxes, suits to enforce lien of, 77. United States, suits against, 183. Suits by or officers of, 225. DISTRICT OF COLUMBIA, Inhabitant not citizen of state in jurisdictional cases, 244. Review of decisions of court of appeals, 526, 566. DIVERSE CITZENSHIP, See Citizenship. DOMICILE, As an element of citizenship, 243-246. DUTIES, See Customs. 750 INDEX [The figures refer to pages] E EMINENT DOMAIN, See Condemnation Proceedings. EMPLOYER'S LIABILITY ACT, Suits under, 268, 318. EQUITY, Adequate legal remedy, 418, 441. Distinction between, and law preserved, 224, 389, 390. Equitable titles and defenses in actions at law, 389. 390. Federal jurisdiction unaffected by state legislation, 224, 316, 419. Limits of jurisdiction, 418. EQUITY PROCEDURE, Bill, amendments to, 442. Averments as to jurisdiction, 424. Averments as to parties, 424. Counsel's signature, 425. Impertinence in, 425. Injunction bills, 426. Interrogatories, 426. Decree, compelling performance of specific acts, 420, 42L Execution on, if for money, 458. Form of, 458. Sales of property under, 459. Vacating of by bill of review, 464. By motion, 464. By rehearing, 463. Defaults, 436. Defense, mode of making, 439. Answer, amendment of, 448. Issue on, 446. Probative force of, 445. Motion, admissions by, 442. Form and nature, 439 442. Issue on, 442. Right to answer over, 442. Special appearances by, 139. English chancery practice, effect on ours, 422. Hearing, 448. Process, on bill, 434. Service of, 434. Proofs, 448. Depositions, 450. Examiner to take, 449. Ore tenus, 448. INDEX 751 [The figures refer to page*] EQUITY PROCEDURE Continued, References, 452. Appointment of masters, 452. Matters referred, 452. Report and exceptions, 456. Regulation by rules, 420-423. Review, bill of, 464. Transfer to law side and vice versa, 441. EQUITY RULES, History of, 421. List of rules quoted. Rule 13 434. Rule 17- Rule Rule 27- Rule Rule Rule Rule 31-- Rule 33 446. Rule 39 257. Rule 54 450. Rrle 69 463. Rule 73 427. See, also, p. 601 et seq. ERROR, WRIT OF, See Appeal and Error. EVIDENCE, Burden of proof in bankruptcy cases, 129, 150. In criminal cases, 58. Competency of witnesses in federal courts, 10. Depositions in common-law cases, 402. In equity cases, 450. Further proof in appellate courts, 577. Handwriting, proof of, 12. State statutes of, in federal courts, 10, 402. EXAMINATION, Of accused, 30-33. Of bankrupt, 140. Of party before trial, 403. Of witness, 402. EXCEPTIONS, To answer in equity, abolished, 446. To master's report, 456. Method of taking, 456. 752 INDEX [The figures refer to pages] EXCEPTIONS Continued, Requisites of. 456. Time of taking, 456. See Bills of Exception. EXECUTION, In common-law cases, 415. In equity cases, 458. EXEMPTION, Of bankrupt, 165. F FEDERAL COURTS, No common law, 5. State laws as rules of decision, 8. State construction of state law, 13. State decisions as to real property, 16. State decisions as to contract or personal relations, 17. State decisions on commercial or general questions, 18. State statutes do not affect equity jurisdiction, 224. 316. 419. The several classes of, 20. See Common-Law Procedure; Equity Procedure. FEDERAL JURISDICTION, Statutory only, 1, 3, 5. FEDERAL QUESTION, District court jurisdiction by reason of, 235, 309. Colorable assertion, to confer jurisdiction, 237, 288. Corporate rights under federal statutes, 237, 313. Suits on clerk's or marshal's bond, 238, 522. Tax laws not constituting due process of law, 238. Tax laws impairing obligation of contracts, 238. Various other instances, 238-240. Different meanings of, in federal law, 236, 542. Habeas corpus questions, 206. Suits against receivers do not necessarily involve, 241, 314. Supreme court review of district court decisions by reason of, 505. Includes constitutional or treaty questions only, 509-513. Supreme court review of circuit court of appeals decisions by reason of, 521. Supreme court review of state court decisions by reason of, 527. Includes constitutional questions only, 532. Not mere questions of construction, 533. Various instances of, 534-537. FINAL JUDGMENTS AND DECREES, For purpose of appellate review, 545, 561, 567, 568, 575. INDEX 753 [The figures refer to pages] FORFEITURES, Jurisdiction of suits for, 69. Procedure in suits for, 70-73. Remission of, 73. FORMER JEOPARDY, Defense, 53. Plea, 54. FRAUDS, STATUTE OF, Enforced in federal courts, 9. H HABEAS CORPUS, Courts having appellate jurisdiction, 481. Method of review, 481, 559. Federal courts having cognizance of, 211. Federal questions as authorizing, 206. Matter involved incapable of pecuniary estimate, 231. Nature of writ, 202. Procedure on, 213. Reluctance of court to issue, 209. State concurrent jurisdiction, 208. When appeals in not a matter of right, 551. HANDWRITING, Proof of, 12. HIGH SEAS, Include the Great Lakes, 25. IMMIGRATION, Jurisdiction of suits, 193. INDIANS, Suits concerning allotment of land to, 196. INDICTMENT, See Criminal Procedure. INFAMOUS OFFENSES, Punishable by confinement for term of years, 40. INFORMATION, See Criminal Procedure. INHABITANT, Equivalent to resident in considering district of suit, 267. HUGHES FED.PB.(2o ED.) 48 754 INDEX [The figures refer to pages] INJUNCTION, Appeals from orders granting, 575. Bills for, 426. Judges who may grant, 429, 431. Matter in controversy, how estimated in suits for, 232. Notice of application for, 427. Temporary restraining order, 428. To state courts, 430. To state officials, 431. INSOLVENCY, State insolvent laws, effect of bankruptcy act, 90. See Bankruptcy. INSTRUCTIONS, To jury, in civil cases, 404. In criminal cases, 56, 62. INTERLOCUTORY DECREES AND ORDERS, Review on appeal, 575. INTERNAL REVENUE, Jurisdiction of suits, 77, 491. Removal of suits against officers, 346. INTERROGATORIES, In bill in equity, 426. INTERSTATE COMMERCE, Suits under act, forum, 79, 488. Involve federal question, 240. JOINDER, Of parties, to give Jurisdiction, 286. To prevent removal of cause, 322. JUDGES, Of circuit courts of appeals, 469. Of district courts, 23. Who may grant injunction, 429, 431. JUDGMENTS, Finality of for appellate review, 545, 561, 567, 568, 575. In criminal proceedings, 67. Lien of, 239, 414. Motion in arrest, 67, 412. Reopening, 413. See Decree. INDEX 755 [The figures refer to pages] JUDICIAL CODE, Adoption of, 22. See Statutes. See, also, p. 623. JUDICIAL SALES, Statute relating to, 459. Under order or decree, 417, 459. JURISDICTION, Meaning of, 474, 502. See Circuit Court of Appeals ; District Court ; Federal Ju- risdiction; Supreme Court. JURY, In bankruptcy cases, 128. In common-law cases, 400. Lists of jurors in criminal cases, 50. Waiver of, 400. L LACHES, Defense of, when raised by motion, 441. LIENS, Of judgments, 239-240, 414. Of taxes, 77. When and how enforceable against absent defendants, 274-6. LIMITATIONS, State statutes, 9, 138. Time for appeal or writ of error, 544, 561, 567, 575. LOCAL INFLUENCE, Ground for removal of cause, 338. M MANDAMUS, Ancillary only in federal courts, 222, 296, 311. Hence not a suit in cognizance of district court, 222, 311. To compel remand of case improperly removed, 381. To compel signing bill of exceptions, 409. MANDATE, Purpose and course of, 579. MASTER, Reference to, 452. Report and exceptions, 456. MATTER IN CONTROVERSY, See District Court; Injunction. 756 INDEX [The figures refer to pages] MONOPOLIES, Jurisdiction of suits forbidding, 194, 513. MOTIONS, As method of defense in equity, 439. For new trial, 67, 411. In arrest of judgment, 67, 412. To quash indictment, 51. To remand cause removed from state court, 380. To reopen decree, 464. NATIONAL BANKS, Suits by and against, 81, 240. NAVIGATION, Federal question, 240. Supreme court review of certain prosecutions for obstructing. 505. NE EXEAT, Condition of bond on, 217. Courts issuing, 216. Not a matter of right, 217. To secure attendance of bankrupt for examination, 141. NEW TRIAL, A matter of discretion, 67, 411. NOTICE, Of application for injunction, 427. o OBLIGATION OF CONTRACT, As a federal question, 238, 513, 535. OFFICERS, Removal of suits against, 346. P PARTIES, Arrangement of for jurisdictional purposes, 260, 324. Averments as to in bill, 424. Formal or necessary as affecting jurisdiction, 256-260, 269, 318, 334. Improper joinder to confer jurisdiction, 286. State rules as to in federal courts, 396. See Bankruptcy; Common-Law Procedure; Removal of Causes. INDEX 757 [The figures refer to pages] PARTITION, Where United States part owners, 196. PATENTS, Jurisdiction of suits concerning, 77, 242, 487, 490. Use of by government liability, 186. PENAL CODE, Adoption of, 22, 25. PENALTIES, Jurisdiction of suits for, 69. Procedure in suits for, 70-73. Remission of, 73. PETITION, For removal of cause from state court, 353. In bankruptcy, 99. PLEA, In equity, abolished, 439. To indictment, 51-54. PLEADING, See Common-Law Procedure ; Equity Procedure. POSTAL LAWS, Actions under, 77, 348, 349. How far revenue laws, 348, 349. PRACTICE, See Common-Law Procedure; Criminal Procedure; Equity Pro- cedure. PREJUDICE AND LOCAL INFLUENCE, Ground for removal of cause, 338-343. PRIZE, Supreme court appellate jurisdiction over, 503. PROBATE PROCEEDINGS, Federal jurisdiction of, 221, 306. PROCEDURE, See Common-Law Procedure; Criminal Procedure; Equity Pro- cedure. PROCESS, In bankruptcy, 119. In equity on bill, 434. In suits against United States, 188. Of state courts, how far adopted, 392. On appeal or error, 554, 560. PROHIBITION, A suit, 222. 758 INDEX [The figures refer to pages] PROOFS, In equity, 448-452. Of claims in bankruptcy, 131. On appeal, 577. See Evidence ; Witnesses. PUBLICATION, In suits to enforce liens, etc., 277. In bankruptcy, 120-121, 131. PUBLIC LANDS, Suits for unlawful enclosures, 192. QUASHING, Indictment, 51. QUO WARRANTO, Statutory action in nature of, a suit, 222. R RECEIVER, Appeals from orders appointing, 575. Bankruptcy proceedings, 124. Extra-territorial powers of, 277, 295, 461-462. Suits against not necessarily a federal question, 242, 314 REFERENCES, Appointment of masters, 452. Matters referred, 452. Report and exceptions, 456. REMEDY AT LAW, Effect on jurisdiction of equity, 418. REMOVAL OF CAUSES, Bond, form and condition of, 364. Character of suit removable, 311. Court must have original cognizance of, 315, 320, 339. Citizens and aliens, controversies between, 326. Controversies between aliens not removable, 326. Citizens of different states, controversies between, 320. Assignment as affecting right, 321. Devices to prevent, 322. Parties, arrangement of, 324. Removable though in district of neither litigant if plaintiff waives, 321. Civil rights, state denial, 343. INDEX 759 [The figures refer to pages] REMOVAL OF CAUSES Continued, Defendant alone entitled to when federal question involved, 317. Defendant nonresident alone entitled to when diverse cit- izenship involved, 321, 328. Defendant under separable controversy provision, 336. Either party under land grants of different states, 325. Employers' liability act, suits under, 318. Federal question as authorizing, 309. Federal corporations as involving, 313. Plaintiff's pleading must show, 312. Plurality of parties, 318. Takes up entire case, including nonfederal questions, 317. Filing transcript, 375-378. Place to file, 377. Status between filing petition and filing transcript, 376. Time of, not jurisdictional, 377. Land grants of different states, 325. Object of allowing from state courts, 301. Petition, amendable, how far, 355. Averments as to citizenship, 358. As to corporations, 359. As to denial of civil rights, 363. As to federal questions, 357. As to prejudice or local influence, 363. As to revenue prosecutions, 363. As to separable controversies, 362. Filing, effect on state court proceedings, 373. Not a general appearance, 379. Place of, 356, 377. Steps at, 371. Time of, 365-371. Form and essentials of, 353, 357, 358. Necessity for, jurisdictional, 352. Record may supplement, 354. Pleadings, how made up after removal, 376. Plurality of defendants, 318, 328. Prejudice or local influence, 338. Must be originally cognizable by district court, 339. Parties who may remove, 340. Procedure, 341. Procedure subsequent to, 375, 378. Remand, motion to, 380. Revenue officers, suits against, 346. Civil and criminal cases, 347. Federal employes entitled to remove, 348. 760 INDEX [The figures refer to pages] REMOVAL OF CAUSES Continued, Procedure under, 349. Revenue cases, meaning of term, 348-349. Separable controversies, 329. Character of controversy, 330. Instances of, 335. Joint suits, 332. Plaintiff's pleading must show, 330. Takes entire case, 337. Whether resident defendant may remove, 336. Statutes authorizing, 307-308, 325, 329, 338. United States, suits by, 319. Waiver of right to, 303. Not by giving attachment bond in state court, 304. Nor by contesting in state court after petition denied, 303, 374. Nor by special appearance in state court, 304. State cannot require general agreement to waive, 304. RESIDENCE, Allegation of not equivalent to allegation of citizenship, 245. Averments of as to corporations, 249, 359. Equivalent to inhabitant in considering district of suit, 267. RESTITUTION, After reversal, of money collected on decree, 462. RESTRAINING ORDER, On application for injunction, 428. REVENUE CAUSES, Jurisdiction, 77, 491. Removal of suits against revenue officers, 346. REVIEW, Bill of, 464. See Appeal and Error. REVISED STATUTES, See Statutes. RULES OF COURT, In actions at law, 391. In equity, 420-423. Supreme court, 581. SCIRE FACIAS. Jurisdiction, 297. SENTENCE, In criminal proceedings, 67. INDEX 761 [The figures refer to pages] SEPARABLE CONTROVERSY, Removal of cause, 329-336. SERVICE, Of process, in actions at law, 394. In bankruptcy, 119. In suits in equity, 434. In suits against United States, 188. On appeal or error, 554, 560. SET-OFF, How far pleadable in federal courts, 10, 390. Matter in controversy, how estimated when pleaded, 230. SLAVE TRADE, Jurisdiction of suits under slave trade laws, 76. STATE, Not a citizen, 246. Right of foreign to sue, 260, 261. Supreme court jurisdiction of controversies to which a party, 383-387. Territories and District of Columbia not included in, 244. STATE COURTS, Injunctions to stay proceedings, 430. Jurisdiction on habeas corpus, 208. Practice, how far adopted, 391. Removal of causes from, 301-381. Writ of error to, 527-543, 567-574. STATE LAWS, Administered by federal courts, 8-19. Adoption of practice of state courts, 391. Equity jurisdiction not affected, 223. Insolvent laws, effect of bankruptcy act, 90. Tax laws, federal questions under, 238. STATUTES, Quoted as follows: Judicial Code, Sec. 24, par. 1 219, 278. Sec. 28 309. Sec. 29 351. Sec. 30 325. Sec. 31 343. Sec. 37 285. Sec. 50 256. . Sec. 51 264. Sec. 52 271. Sec. 54 272. Sec. 55 272. 762 INDEX [The figures refer to pages] STATUTE S Continued, Quoted as follows: Judicial Code, Sec. 57 273. Sec. 128 471. Sec. 129 575. Sec. 215 495. Sec. 233 383. Sec. 237 527. Sec. 238 473, 497. Sec. 239 471, 514. Sec. 240 472, 518. Sec. 241 520. Sec. 252 523. Sec. 262 493. Sec. 263 428. Sec. 264 429. Sec. 265 430. Sec. 266 432. Sec. 267 418. Sec. 269 411. Sec. 291 197, 401, 579. Revised Statutes, Sec. 649 400. Sec. 700 400. Sec. 717 216. Sec. 858 12. Sec. 862- Sec. 913- Sec. Sec. 91J Sec. 91( Sec. 917- Sec. 918 391. Sec. 948 394. Sec. 953 63. Sec. 954 398. Sec. 990 416. Sec. 997 552. Sec. 1000 556. Sec. 1003 567. Sec. 1007 556. Sec. 1011 547. Sec. 1012 559. Statutes at Large. 1888, Aug. 1 (25 Stat. 357; U. S. Comp. St. 1901, p, 701) 414. 1892, March 9 (27 Stat. 7; U. S. Comp. St. 1901, p. 664) 403. INDEX 763 [The figures refer to pages] STATUTE S Continued, Statutes at Large Continued, 1893, March 8 (27 Stat 751 ; U. S. Comp. St. 1901, p. 710) 459. 1898, July 1, sec. 14b (30 Stat. 549; U. S. Comp. St 1901, p. 3426) 173. Id. sees. 24, 25 (30 Stat. 553; U. S. Comp. St. 1901, p. 3431) 482. Id. sec. 60 a, b (30 Stat. 561 ; U. S. Comp. St. 1901, p. 3444) 148. 1907, March 2 (34 Stat. 1246) 504. STATUTES OF LIMITATION, As affecting provability of debt in bankruptcy, 138. How far pleadable in federal courts, 9. SUIT, See District Court ; Removal of Causes ; Supreme Court. SUIT IN EQUITY. See Equity Procedure. SUPERSEDE AS, Bond to make effective, 556. Condition and requisites of, 557. Effect of, 558. Extent of court's discretion in granting or refusing, 561. See Appeal and Error. SUPREME COURT, Appellate jurisdiction, 496. Bankruptcy appeals, 523. District court appeals, 496. Criminal cases, 504. Constitutional or treaty questions, 505. Jurisdictional questions on certificate, 497-505. Requisites of certificate, 498. Obstructions to navigation, 505. Prize causes, 503. Trust acts, suits under, 513. Circuit court of appeals decisions on certificate, 514, 563. By certiorari, 518, 564. By writ of error or appeal, 520, 565. Constitutional or treaty questions, 505. Classes of, 509-513. How made to appear, 507. Not mere construction of statute, 511. Court of claims, 527, 567. District of Columbia court of appeals, 526, 566. Habeas corpus, right to issue, 212. 764 INDEX [The figures refer to pages] SUPREME COURT Continued, Ne exeat, right to issue, 216. State courts, 527. Constitutionality of provision allowing, 528. Courts subject to review, 531. Parties who may ask, 532. Questions reviewable, 532, 568. How made to appear, 537. Process of review, 570. Suits or proceedings reviewable, 530. Territorial courts, 525, 566. Include the Philippines, Porto Rico, and Hawaii, 525. Organization, 494. Original jurisdiction of, ambassadors, etc., 387, 382. State as party, 383, 387. Sessions, 495. See Appeal and Error ; Circuit Court of Appeals. SUPREME COURT RULES, Quoted as follows: Rule 29 557. Rule 35 552. Rule 36 551. Rule 37 516. See also p. 581 et seq. SURETY COMPANY, Suable wherever bond given, 268. TAXES, Federal questions under tax laws, 238. Suits to enforce liens, 77. See Revenue Causes. TERRITORIAL COURTS, Jurisdiction of, 388. Review of decisions, 488, 525, 566. TRADE-MARK, Suits under, jurisdiction, 77, 242. TRIAL, In civil cases, 400-112. In criminal cases, 55. On appeal or error, 577. TRUSTS, Suits under acts forbidding, 194, 513. INDEX 765 [The figures refer to pages] u UNITED STATES, Limited right of review in criminal cases, 504. Priority in distribution of bankruptcy assets, 163. Suits against, aliens' claims, 187. Appeal, course and form of, 189, 190, 487. Contractual money demands only, 184. Forum, 183. Limitation, 187. Petition and process on, 188. Partition suits, 196. Suits by, court jurisdiction, 225. Circuit court of appeals jurisdiction, 487. Right of removal in, 319. Supreme court jurisdiction, 513. UNITED STATES COMMISSIONERS, Powers of, 28-33. UNITED STATES COURTS, See Federal Courts. VERDICT, Directing in federal courts, 405. Practice of state courts, how far adopted, 410. Requisites in civil cases, 410. In criminal cases, 65. w WAIVER, Of jury in federal court, 400. Of privilege of suit in district of residence only, 265. As affecting right to remove case, 321. Of right to remove case from state court, 277, 374. WARRANT, Of arrest in criminal cases, 29. Of removal for trial, 33. Of seizure in bankruptcy, 122. WITNESSES, Competency in federal courts, 10, 143. Lists to be furnished in criminal cases, 50. Right of accused to be confronted with witnesses, 55. To testify, 55, 58-9. 766 INDEX [The figures refer to pages] WRIT OF ATTACHMENT, To enforce decree, 462. WRIT OF ERROR, See Appeal and Error. WRIT OF SEQUESTRATION, To enforce decree, 462. WEST PUBLISHING CO., PBINTEBS, ST. PAUL, MINH. f)ornbook Scries Comprises elementary treatises on all the principal sub- jects of the law. The books are made on the same gen- eral plan, in which certain special and original features are made prominent. "^ornbook plan" Is to set forth the leading principles in black-letter (like this) And to give the necessary amplification, explanation, ap- plication, etc., under the principles, in type like this. The authorities are grouped in footnotes at the bottom of the page.* This shows why these books are found so serviceable as practitioners' handbooks. A lawyer may want to be re- minded of the law ; in that case he wants it presented in such a way that he can pick out what he needs with the least trouble. *The Hornbook Series now includes treatises on Agency, Admi- ralty, Bailments. Bills and Notes, Common-Law Pleading, Constitu- tional Law, Contracts, Corporations, Criminal Law, Criminal Pro- cedure, Damages, Elementary Law, Equity Jurisprudence, Equity Pleading, Evidence. Executors and Administrators, Federal Juris- diction and Procedure, Insurance, International Law, Interpreta- tion of Laws, Mining Law, Negligence, Partnership, Persons and Domestic Relations. Public Corporations, Real Property, Sales, Torts (2 vols.) and Wills. Uniform price, $3.75 a volume, delivered. Bound in American Law Buckram. West Publishing Co. St. Paul, Minn. 100 William St. 225 Dearborn St. New York. Chicago. C6559a 23arrotps on negligence. 1899. 634 pages. $3.75 delivered. By MORTON BARROWS, A. B., LL. B. TABLE OF CONTENTS. Chap. 1. Definition and Essential Elements. 2. Contributory Negligence. 3. Liability of Master to Servant. 4. Liability of Master to Third Persons. 5. Common Carriers of Passengers. 6. Carriers of Goods. 7. Occupation and Use of Land and Water. 8. Dangerous Instrumentalities. 9. Negligence of Attorneys, Physicians, and Public Officers. 10. Death by Wrongful Act. 11. Negligence of Municipal Corporations. CG559-1 Black on Construction anb 3nterpretatton of CCUPS. 1911. 624 pages. $3.75 delivered. By H. CAMPBELL BLACK, Author of Black's Law Dictionary, and Treatises on Constitution- al Law, Judgments, etc. Second Edition. TABLE OF CONTENTS. Chap. 1. Nature and Office of Interpretation. 2. Construction of Constitutions. 3. General Principles of Statutory Construction. 4. Presumptions in Aid of Construction, and Consideration of Ef- fects and Consequences of Act. 5. Literal and Grammatical Construction, Meaning of Language, and Interpretation of Words and Phrases. 6. Intrinsic Aids in Statutory Construction. 7. Extrinsic Aids in Statutory Construction. 8. Construction of Statute as a Whole and with Reference to Ex- isting Laws. 9. Interpretation with Reference to Common Law. 10. Retrospective Interpretation. 11. Construction of Provisos, Exceptions, and Saving Clauses. 12. Strict and Liberal Construction. 13. Mandatory and Directory Statutes and Provisions. 14. Amendatory and Amended Acts. 15. Construction of Codes and Revised Statutes. 10. Adopted and Re-enacted Statutes. 17. Declaratory Statutes. 18. The Rule of Stare Decisis as Applied to Statutory Construc- tion. With Key-Number Annotations CC559b-2 Black's Constitutional atr>. 1910. 868 pages. $3.75 delivered. By H. CAMPBELL BLACK, Author of Black's Law Dictionary, Treatises on Judgments, Tax Titles, Bankruptcy, etc. Third Edition. TABLE OF CONTENTS. Chap. 1. Definitions and General Principles. 2. The United States and the States. 3. Establishment and Amendment of Constitutions. 4. Construction and Interpretation of Constitutions. 5. The Three Departments of Government. 6. The Federal Executive. 7. Federal Jurisdiction. 8. The Powers of Congress. 9. Interstate Law as Determined by the Constitution. 10. The Establishment of Republican Government. 11. Executive Power in the States. 12. Judicial Powers in the States. 13. Legislative Power in the States. 14. The Police Power. 15. The Power of Taxation. 16. The Right of Eminent Domain. 17. Municipal Corporations. 18. Civil Rights, and Their Protection by the Constitution. 19. Political and Public Rights. 20. Constitutional Guaranties in Criminal Cases. 21. Laws Impairing the Obligation of Contracts. 22. Retroactive Laws. With Key-Number Annotations C6559b -3 23lack on Cfye atr> of 3ubtcial Precebents or tbe Science of Case att> 1912. 766 pages. $3.75 delivered By H. CAMPBELL BLACK TABLE OF CONTENTS Chap. 1. Nature and Authority of Judicial Precedents. 2. Dicta. 3. Doctrine of Stare Decisis. 4. Constitutional and Statutory Construction. 5. Rules of Property. 6. The Law of the Case. 7. Authority of Precedents as Between Various Courts of the Same State. 8. Authority of Precedents as Between the Various Courts of the United States. 9. Decisions of Federal Courts as Authorities in State Courts. 10. Decisions of Courts of Other States. 11. Decisions of Courts of Foreign Countries. 12. Federal Courts Following Decisions of State Courts; in General. 13. Same; Matters of Local Law and Rules of Property. 14. Same; Validity and Construction of State Constitutions and Statutes. 15. Same; Federal Questions. 16. Same; Commercial Law and General Jurisprudence. 17. Same; Equity and Admiralty. 18. Same; Procedure and Evidence. 19. Effect of Reversal or Overruling of Previous Decision. (Elarlt on Contracts. 1904. 693 pages. $3.75 delivered. By WM. L. CLARK, Jr. Second Edition: By FRANCIS B. TIFFANY. TABLE OF CONTENTS. Chap. 1. Contract in General. 2. Offer and Acceptance. 3. Classification of Contracts. 4. Requirement of Writing. 5. Consideration. 6. Capacity of Parties. 7. Reality of Consent. 8. Legality of Object. 9. Operation of Contract. 10. Interpretation of Contract, 11. Discharge of Contract. 12. Agency. 13. Quasi Contract C6559-5 Clark on Corporations. 1907. 721 pages. $3.75 delivered. By WM. L. CLARK, Jr., Author of "Criminal Law," "Criminal Procedure," and "Contracts." Second Edition: By FRANCIS B. TIFFANY. TABLE OF CONTENTS. Chap. 1. Of the Nature of a Corporation. 2. Creation and Citizenship of Corporations. 3. Effect of Irregular Incorporation. 4. Relation between Corporation and its Promoters. 5. Powers and Liabilities of Corporations. 6. Powers and Liabilities of Corporations. 7. Powers and Liabilities of Corporations. 8. The Corporation and the State. 9. Dissolution of Corporations. 10. Membership in Corporations. 11. Membership in Corporations. 12. Membership in Corporations. 13. Management of Corporations Officers and Agents. 14. Rights and Remedies of Creditors. 15. Foreign Corporations. Appendix. CG559-G Clark's Criminal atr. 1902. 517 pages. $3.75 delivered. By WM. L. CLARK, Jr., Author of a "Handbook of the Law of Contracts." Second Edition: By FRANCIS B. TIFFANY. TABLE OF CONTENTS. Chap. 1. Definition of Crime. 2. Criminal Law. 3. Classification of Crimes. 4. The Mental Element in Crime. 5. Persons Capable of Committing Crime. 6. Parties Concerned. 7. The Overt Act. 8. Offenses against the Person. 9. Offenses against the Person. 10. Offenses against the Habitation. 11. Offenses against Property. 12. Offenses against the Public Health, Morals, etc. 13. Offenses against Public Justice and Authority. 14. Offenses against the Public Peace. 15. Offenses against the Government. 16. Offenses against the Law of Nations. 17. Jurisdiction. 18. Former Jeopardy. C6559-7 Clark's Criminal Proceburc. 1895. 665 pages. $3.75 delivered. By WM. L. CLARK, Jr., Author of a "Handbook of Criminal Law," and a "Handbook of Contracts." TABLE OF CONTENTS. Chap. 1. Jurisdiction. 2. Apprehension of Persons and Property. 3. Preliminary Examination, Bail, and Commitment. 4. Mode of Accusation. 5. Pleading The Accusation. ' 6. Pleading The Accusation. 7. Pleading The Accusation. 8. Pleading The Accusation. 9. Pleading The Accusation. 10. Pleading and Proof. 11. Motion to Quash. 12. Trial and Verdict. 13. Proceedings after Verdict. 14. Evidence, 15. Habeas Corpus. C6559-8 on Executors cmb Ctbmtntstrators. 1897. 696 pages. $3.75 delivered. By SIMON GREENLEAF CROSWELL, Author of "Electricity," "Patent Cases," etc. TABLE OF CONTENTS. Chap. Part 1. DEFINITIONS AND DIVISION OF SUBJECT. 1. Definitions and Division of subject. Part 2. APPOINTMENT AND QUALIFICATIONS. 2. Appointment in Court. 3. Place and Time of Appointment and Requisites Therefor. 4. Who may Claim Appointment as Executor. 5. Who may Claim the Right to Administer. 6. Disqualifications for the Office of Executor or Administrator. 7. Acceptance or Renunciation. 8. Proceedings for Appointment of Executors and Administra- tors, 9. Special Kinds of Administrations. 10. Foreign and Interstate Administration. 11. Joint Executors and Administrators. 12. Administration Bonds. Part 3. POWERS AND DUTIES. 13. Inventory Appraisement Notice of Appointment. 14. Assets of the Estate. 15. Management of the Estate. 16. Sales and Conveyances of Personal or Real Assets. 17. Payment of Debts and Allowances Insolvent Estates. 18. Payment of Legacies. 19. Distribution of Intestate Estates. 20. Administration Accounts. Part 4. TERMINATION OF OFFICE. 21. Revocation of Letters Removal Resignation. Part 5. REMEDIES. 22. Actions by Executors and Administrators. 23. Actions against Executors and Administrators. 24. Statute of Limitations Set-off. 25. Evidence and Costs. CG559-9 Costtgcm on XHtntng anx 1908. 765 pages. $3.75 delivered. By GEORGE P. COSTIGAN, Jr. Dean of the College of Law of the University of Nebraska. TABLE OF CONTENTS. Chap. 1. The Origin and History of American Mining Law. 2. The Mining Law Status of the States, Territories, and Posses- sions of the United States. 3. The Land Department and the Public Surveys. 4. The Relation Between Mineral Lands and the Public Land Grants. 5. The Relation Between Mineral Lands and Homestead, Timber and Desert Entries. 6. The Relation Between Mineral Lands and the Various Public- Land Reservations. 7. The Relation Between Mineral Lands and Townsites. 8. Definitions of Practical Mining Terms. 9. Definitions of Mining Law Terms. 10. The Discovery of Lode and Placer Claims. 11. Who May and Who May not Locate Mining Claims. 12. The Location of Lode Claims. 13. The Location of Mill Sites. 14. The Location of Tunnel Sites and of Blind Lodes Cut by Tun- nels. 15. The Location of Placers and of Lodes within Placers. 16. The Annual Labor or Improvements Requirements. 17. The Abandonment, Forfeiture, and Relocation of Lode and Placer Mining Claims. 18. Uncontested Application to Patent Mining Claims. 19. Adverse Proceedings and Protests Against Patent Applications. 20. Patents. 21. Subsurface Rights. 22. Coal Land and Timber and Stone Land Entries and Patents. 23. Oil and Gas Leases. 24. Other Mining Contracts and Leases. 25. Mining Partnerships and Tenancies in Common. 26. Conveyances and Liens. 27. Mining Remedies. 28. Water Rights and Drainage. Appendices. (Satcm on (Squtty. 1901. 734 pages. $3.75 delivered. By JAMES W. EATON, Editor 3d Edition Collier on Bankruptcy, Co-Editor American Bankruptcy Reports, Eaton and Greene's Negotiable Instruments Law, etc. TABLE OF CONTENTS. Origin and History. General Principles Governing the Exercise of Equity Jurisdiction. Maxims. Penalties and Forfeitures. Priorities and Notice. Bona Fide Purchasers Without Notice. Equitable Estoppel. Election. Satisfaction and Performance. Conversion and Reconversion. Accident. Mistake. Fraud. Equitable Property. Implied Trusts. Powers, Duties, and Liabilities of Trustees. Mortgages. Equitable Liens. Assignments. Remedies Seeking Pecuniary Relief. Specific Performance. Injunction. Partition, Dower, and Establishment of Boundaries. Reformation, Cancellation, and Cloud on Title. Ancillary Remedies. O5559-10 (Barbner on tDtUs. 1903. 726 pages. $3.75 delivered. By GEORGE E. GARDNER, Professor in the Boston University Law School. TABLE OF CONTENTS. Chap. 1. History of Wills Introduction. 2. Form of Wills. 3. Nuncupative, Holographic, Conditional Wills. 4. Agreements to Make Wills, and Wills Resulting from Agree- ment. 5. Who may be a Testator. 6. Restraint upon Power of Testamentary Disposition Who may be Beneficiaries What may be Disposed of by Will. 7. Mistake, Fraud, and Undue Influence. 8. Execution of Wills. 9. Revocation and Republication of Wills. 10. Conflict of Laws. 11. Probate of Wills. 12. Actions for the Construction of Wills. 13. Construction of Wills Controlling Principles. 14. Construction Description of Subject-Matter. 15. Construction Description of Beneficiary. 16. Construction Nature and Duration of Interests. 17. Construction Vested and Contingent Interests Remainders Executory Devises. 18. Construction Conditions. 19. Construction Testamentary Trusts and Powers. 20. Legacies General Specific Demonstrative Cumulative Lapsed and Void Abatement Ademption Advance- ments. 21. Legacies Charged upon Land or Other Property. 22. Payment of the Testator's Debts. 23. Election. 24. Rights of Beneficiaries Not Previously Discussed. C6559-12 1911. About 775 pages. $3.75 delivered. By EUGENE A. GILMORE. Author of Gilmore's Cases on Partnership (American Casebook Series). TABLE OF CONTENTS. Chap. 1. What Constitutes a Partnership. 2. Formation and Classification of Partnerships. 3. The Nature and Characteristics of a Partnership. 4. Nature, Extent, and Duration of Partnership Liability. 5. Powers of Partners. 6. Rights and Duties of Partners Inter se. 7. Remedies of Creditors. 8. Actions Between Partners. 9. Actions Between Partners and Third Persons. 10. Termination of the Partnership. 11. Limited Partnerships. With Key-Number Annotations OG559b-13 )ale on Bailments anb Carriers. 1896. 675 pages. $3.75 delivered. By WM. B. HALE. TABLE OF CONTENTS. Cbap. 1. In General. 2. Bailments for Sole Benefit of Bailor. 3. Bailments for Bailee's Sole Benefit. 4. Bailments for Mutual Benefit Pledges. 5. Bailments for Mutual Benefit Hiring. 6. Innkeepers. 7. Carriers of Goods. 8. Carriers of Passengers. 9. Actions against Carriers. on Damages 1912. $3.75 delivered By WM. B. HALE Author of "Bailments and Carriers" Second Edition: By ROGER W. COOLEY TABLE OF CONTENTS Chap. 1. Definitions and General Principles. 2. Nominal Damages. 3. Compensatory Damages. 4. Bonds, Liquidated Damages and Alternative Contracts. 5. Interest. 6. Value. 7. Exemplary Damages. 8. Pleading and Practice. 9. Breach of Contracts for Sale of Goods. 10. Damages in Actions against Carrier. 11. Damages in Actions against Telegraph Companies. 12. Damages for Death by Wrongful Act. 13. Wrongs Affecting Real Property. 14. Breach of Marriage Promise. With Key-Number Annotations C6559b-16 on (Torts. 1896. 636 pages. $3.75 delivered. By WM. B. HALE. Author of "Bailments and Carriers," etc. TABLE OF CONTENTS. Chap. 1. General Nature of Torts. 2. Variations in Normal Right to Sue. 3. Liability for Torts Committed by or with Others. 4. Discharge and Limitation of Liability for Torts. 5. Remedies for Torts Damages. 6. Wrongs Affecting Freedom and Safety of Person. 7. Injuries in Family Relations. 8. Wrongs Affecting Reputation. 9. Malicious Wrongs. 10. Wrongs to Possession and Property. 11. Nuisance. 12. Negligence. 13. Master and Servant. CG559-17 on Heal Property. 1896. 589 pages. $3.75 delivered. By EARL P. HOPKINS, A. B. LL. M. TABLE OF CONTENTS. Chap. 1. What is Real Property. 2. Tenure and Seisin. 3. Estates as to Quantity Fee Simple 4. Estates as to Quantity Estates Tail. 5. Estates as to Quantity Conventional Life Estates. C. Estates as to Quantity Legal Life Estates. 7. Estates as to Quantity Less than Freehold. 8. Estates as to Quality on Condition on Limitation. 9. Estates as to Quality Mortgages. 10. Equitable Estates. . 11. Estates as to Time of Enjoyment Future Estates. 12. Estates as to Number of Owners Joint Estates. 13. Incorporeal Hereditaments. 14. Legal Capacity to Hold and Convey Realty. 15. Restraints on Alienation. 16. Title. C6559-1S on dbmiralty. 1901. 504 pages. $3.75 delivered. By ROBERT M. HUGHES, M. A. TABLE OF CONTENTS. The Origin and History of the Admiralty, and its Extent in the United States. Admiralty Jurisdiction as Governed by the Subject-Matter. General Average and Marine Insurance. Bottomry and Respoudentia ; and Liens for Supplies, Repairs, and Other Necessaries. Stevedores' Contracts, Canal Tolls, and Towage Contracts. Salvage. Contracts of Affreightment and Charter Parties. Water Carriage as Affected by the Harter Act of February 13, 1893. Admiralty Jurisdiction in Matters of Tort. The Right of Action in Admiralty for Injuries Resulting Fatally. Torts to the Property, and Herein of Collision. The Steering and Sailing Rules. Rules as to Narrow Channels, Special Circumstances, and General Precautions. Damages in Collision Cases. Vessel Ownership Independent of the Limited Liability Act. Rights and Liabilities of Owners as Affected by the Limited Lia- bility Act. The Relative Priorities of Maritime Claims. A Summary of Pleading and Practice. APPENDIX. 1. The Mariner's Compass. 2. Statutes Regulating Navigation, Including: (1) The International Rules. (2) The Rules for Coast and Connecting Inland Waters. (3) The Dividing Lines between the High Seas and Coast Wa- ters. (4) The Lake Rules. (5) The Mississippi Valley Rules. (G) The Act of March 3, 1899, as to Obstructing Channels. 3. The Limited Liability Acts, Including: (1) The Act of March 3, 1851, as Amended. (2) The Act of June 26, 1884. 4. Section 941, Rev. St., as Amended, Regulating Bonding of Ves- sels. 5. Statutes Regulating Evidence in the Federal Courts. 0. Suits in Forma Pauperis. 7. The Admiralty Rules of Practice. CG559-19 on 3urtsbictton cmb Procedure. 1904. 634 pages. $3.75 delivered. By ROBERT M. HUGHES, of the Norfolk Bar, Author of "Hughes on Admiralty," and Lecturer at the George Washington University Law School. TABLE OF CONTENTS. Chap. 1. Introduction What it Comprehends. 2. The District Court Its Criminal Jurisdiction and Practice. 3. Same Continued. 4. The District Court Criminal Jurisdiction Miscellaneous Jurisdiction. 5. The District Court Bankruptcy. 6-8. Same Continued. 9. The District Court Miscellaneous Jurisdiction. 10. The Circuit Court Original Jurisdiction. 11-12. Same Continued. 13. The Circuit Court Jurisdiction by Removal. 14-15. Same Continued. 16. The Circuit Court Jurisdiction by Removal Original Juris- diction of the Supreme Court Other Minor Courts of Orig- inal Jurisdiction. 17. Procedure in the Ordinary Federal Courts of Original Juris- diction Courts of Law. 18. Procedure in the Ordinary Federal Courts of Original Juris- diction Courts of Equity. 19. Same Continued. 20. Appellate Jurisdiction The Circuit Court of Appeals. 21. Appellate Jurisdiction The Supreme Court. 22. Procedure on Error and Appeal. The U. S. Supreme Court Rules and the Rules of Practice for the Courts of Equity of the United States are given in an appendix. C6559-20 3ngersoll on Public Corporations. 1904. 738 pages. $3.75 delivered. By HENRY H. INGERSOLL, LL. D., Dean of the University of Tennessee School of Law. TABLE OF CONTENTS. Part 1. QUASI CORPORATIONS. Chap. 1. Nature, Creation, Classification. 2. Quasi Corporations Liabilities, Elements, Counties, Property, etc. 3. Same Continued. 4. Same Continued. Part 2. MUNICIPAL CORPORATIONS. 5. Municipal Corporations. 0. Their Creation How By What Bodies Subject to What Re- strictions, etc. 7. Their Alteration and Dissolution. 8. The Charter. 9. Legislative Control. 10. Proceedings and Ordinances. 11. Officers, Agents, and Employe's. 12. Contracts. 13. Improvements. 14. Police Powers and Regulations. 15. Streets, Sewers, Parks, and Public Buildings. 16. Torts. 17. Debts, Funds, Expenses, and Administration. 18. Taxation. 19. Actions. Part 3. QUASI PUBLIC CORPORATIONS. 20. Quasi Public Corporations. 21. Railroads. 22. Electric Companies. 23. Water and Gas Companies. 24. Other Quasi Public Corporations. C6559-21 on Corts. 1895. 2 vols. 1307 pages. $7.50 delivered. By EDWIN A. JAGGARD, A. M., LL. B., Professor of the Law of Torts in Minnesota University Law School. TABLE OF CONTENTS. Part 1. IN GENERAL. Chap. 1. General Nature of Torts. 2. Variations in the Normal Right to Sue. 3. Liability for Torts Committed by or with Others. 4. Discharge and Limitation of Liability for Torts. 5. Remedies. Part 2. SPECIFIC WRONGS. 6. Wrongs Affecting Safety and Freedom of Persons. 7. Injuries in Family Relations. 8. Wrongs Affecting Reputation. 9. Malicious Wrongs. 10. Wrongs to Possession and Property. 11. Nuisance. 12. Negligence. 13. Master and Servant. 14. Common Carriers. CG559-22 on (Stnbence. 1907. 540 pages. $3.75 delivered. By JOHN JAY McKELVEY, A. M., LL. B., Author of "Common-Law Pleading," etc. Second Edition. TABLE OF CONTENTS. Chap. 1. Introductory. 2. Judicial Notice. 3. Questions of Law and Questions of Fact. 4. Burden of Proof. 5. Presumptions. 6. Admissions. 7. Confessions. 8. Matters Excluded as Unimportant, or as Misleading, though Logically Relevant. 9. Character. 10. Opinion Evidence. 11. Hearsay. 12. Witnesses. 13. Examination of Witnesses. 14. Writings. 15. Demurrers to Evidence. C65r>9-23 Horton on Bills anb Hotes. 1900. 600 pages. $3.75 delivered. By PROF. CHARLES P. NORTON. Third Edition: By Francis B. Tiffany. TABLE OF CONTENTS. Chap. 1. Of Negotiability so far as it Relates to Bills and Notes. 2. Of Negotiable Bills and Notes, and their Formal and Essen- tial Requisites. 3. Acceptance of Bills of Exchange. 4. Indorsement. 5. Of the Nature of the Liabilities of the Parties. 6. Transfer. 7. Defenses as against Purchaser for Value without Notice. 8. The Purchaser for Value without Notice. 9. Of Presentment and Notice of Dishonor. 10. Checks. Appendix. CG559-24 Shipment on (ommotvatr> 1895. G15 pages. $3.75 delivered. By BENJAMIN J. SHIPMAN, LL. B. Second Edition. TABLE OF CONTENTS. Chap. 1. Forms of Action. 2. Forms of Action. 3. The Parties to Actions. 4. The Proceedings in an Action. 5. The Declaration. 6. The Production of the Issue. 7. Material ty in Pleading. 8. Singleness or Unity in Pleading. 9. Certainty in Pleading. 10. Consistency and Simplicity in Pleading. 11. Directness and Brevity in Pleading. 12. Miscellaneous Rules. Appendix. CG559-25 Sfytpmcm on (Equity Pleading. 1897. 644 pages. $3.75 delivered. By BENJ. J. SHIPMAN, LL. B., Author of "Shipruan's Common-Law Pleading." TABLE OF CONTENTS. Chap. 1. Equity Pleading in General. 2. Parties. 3. Proceedings in an Equitable suit. 4. Bills in Equity. 5. The Disclaimer. 6. Demurrer. 7. The Plea. 8. The Answer. 9. The Replication. ! ! CG559-2G Smiths (Elementary aux 1896. 367 pages. $3.75 delivered. BY WALTER DENTON SMITH, Instructor in the Law Department of the University of Michigan. TABLE OF CONTENTS. Chap. Part 1. ELEMENTARY JURISPRUDENCE. 1. Nature of Law and the Various Systems. 2. Government and its Functions. 3. Government in the United States. 4. The Unwritten Law. 5. Equity. 6. The Written Law. 7. The Authorities and their Interpretation. 8. Persons and Personal Rights. 9. Property. 10. Classification of the Law. Part 2. THE SUBSTANTIVE LAW. 11. Constitutional and Administrative Law. 12. Criminal Law. 13. The Law of Domestic Relations. 14. Corporeal and Incorporeal Hereditaments. 15. Estates in Real Property. 16. Title to Real Property. 17. Personal Property. 18. Succession After Death. 19. Contracts. 20. Special Contracts. 21. Agency. 22. Commercial Associations. 23. Torts. Part 3. THE ADJECTIVE LAW. 24. Remedies. 25. Courts and their Jurisdiction. 20. Procedure. 27. Trials. CG359-27 (Tiffany on Clgenqj. 1903. 609 pages. $3.75 delivered. By FRANCIS B. TIFFANY, Author of "Death by Wrongful Act," "Law of Sales," etc. TABLE OF CONTENTS. Chap. Part 1. IN GENERAL. 1. Introductory Definitions. 2. Creation of the Relation of Principal and Agent Appointment. 3. Same (continued) Ratification. 4. What Acts Can be Done by Agent Illegality Capacity of Parties Joint Principals and Agents. 5. Delegation by Agent Subagents. 6. Termination of the Relation. 7. Construction of Authority. Part 2. RIGHTS AND LIABILITIES BETWEEN PRINCIPAL AND THIRD PERSON. 8. Liability of Principal to Third Person Contract. 9. Same (continued). 10. Admissions by Agent Notice to Agent. 11. Liability of Principal to Third Person Torts and Crimes. 12. Liability of Third Person to Principal. Part 3. RIGHTS AND LIABILITIES BETWEEN AGENT AND THIRD PERSON. 13. Liability of Agent to Third Person (including parties to con- tracts). 14. Liability of Third Person to Agent. Part 4. RIGHTS AND LIABILITIES BETWEEN PRINCIPAL AND AGEJSiT. 15. Duties of Agent to Principal. 16. Duties of Principal to Agent. Appendix. 1912. 610 pages. $3.75 delivered. By FRANCIS B. TIFFANY, Author of "Tiffany on Sales," "Tiffany on Agency," etc. TABLE OF CONTENTS. Chap. 1. Introductory. 2. Deposits. 3. Checks. 4. Payment of Checks. 5. Clearing House. 6. Collections. 7. Loans and Discounts. 8. Bank Notes. 9. Banking Corporations. 10. Representation of Bank by Officers. 11. Insolvency. 12. National Banks. 13. Savings Banks. Appendix. With Key-Number Annotations C6559-281/6 Ctffcmy on persons anb Domestic delations. 1909. 656 pages. $3.75 delivered. By WALTER C. TIFFANY. Second Edition : Edited by Roger W. Cooley. TABLE OF CONTENTS. Chap. Part 1. HUSBAND AND WIFE. 1. Marriage. 2. Persons of the Spouses as Affected by Coverture. 3. Rights in Property as affected by Coverture. 4. Contracts, Conveyances, etc., and Quasi-Contractual Obliga- tions. 5. Wife's Equitable and Statutory Separate Estate. 6. Antenuptial and Postnuptial Settlements. 7. Separation and Divorce. Part 2. PARENT AND CHILD. 8. Legitimacy, Illegitimacy, and Adoption. 9. Duties and Liabilities of Parents. 10. Rights of Parents and of Children. Part 3. GUARDIAN AND WARD. 11. Guardians Defined Selection and Appointment. 12. Rights, Duties, and Liabilities of Guardians. 13. Termination of Guardianship Enforcing Guardian's Liability. Part 4. INFANTS, PERSONS NON COMPOTES MENTIS, AND ALIENS. 14. Infants. 15. Persons Non Compotes Mentis and Aliens. Part 5. MASTER AND SERVANT. 16. Creation and Termination of Relation. (Tiffany on Sales. 1908. 534 pages. $3.75 delivered. By FRANCIS B. TIFFANY, A. B., LL. B. Author of "Tiffany on Death by Wrongful Act." Second Edition. TABLE OF CONTENTS. Cbap. 1. Formation of the Contract. 2. Formation of the Contract Under the Statute of Frauds. 3. Effect of the Contract in Passing the Property Sale of Spe- cific Goods. 4. Effect of the Contract in Passing the Property Sale of Goods not Specific. 5. Fraud, and Retention of Possession. 6 Illegality. 7. Conditions and Warranties. 8. Performance. 9. Rights of Unpaid Seller against the Goods. 10. Action for Breach of the Contract. Appendix: Sales Act English Sale of Goods Act C6559a 30 Dance on Insurance. 1896. 683 pages. $3.75 delivered. By WILLIAM REYNOLDS VANCE, Professor of Law in the George Washington University., The principal object of this treatise is to give a consistent state- ment of logically developed principles that underlie all contracts of insurance, with subsidiary chapters treating of the rules peculiar to the several different kinds of insurance. Special attention has been given to the construction of the standard fire policy. This treatment will help to bring about, we believe, the much desired clarification of this branch of the law. The chapters cover, Historical and Introductory. Nature and Requisites of Contract. Parties. Insurable Interest. Making the Contract. The Consideration. Consent of the Parties Concealment, Consent of the Parties Warranties. Agents and their Powers. Waiver and Estoppel. The Standard Fire Policy. Terms of the Life Policy. Marine Insurance. Accident Insurance. Guaranty, Credit, and Liability Insurance, Appendix. C6559-31 IPilson on 3ntemational 1910. 623 pages. $3.75 delivered. By GEORGE GRAFTON WILSON. TABLE OF CONTENTS. Chap. . 1. Persons in International Law. 2. Existence, Independence and Equality. 3. Property and Domain. 4. Jurisdiction. 5. Diplomatic Relations. 6. Consular and Other Relations. 7. Treaties and Other International Agreements. 8. Amicable Means of Settlement of International Differences. 9. Non-Amicable Measures of Redress Short of War. 10. Nature and Commencement. 11. Area and General Effect of Belligerent Operations. 12. Rights and Obligations During War. 13. Persons During War. 14. Property on Land. 15. Property on Water. 16. Maritime Capture. 17. Rules of War. 18. Military Occupation and Government. 19. Prisoners, Disabled and Shipwrecked. 20. Non-Hostile Relations between Belligerents. 21. Termination of War. 22. Nature of Neutrality. 23. Visit and Search. 24. Contraband. 1T>. Blockade. 26. Continuous Voyage. 27. Unneutral Service. 28. Prize. C6R59-32 / . LAW LIBRARY <&, UNIVERSITY OF CALIFORNIA V LOS ANGELES MONOLITH PORTLAND CEMENT A 000 891 851 8