THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW MONTGOMERY'S MANUAL OF -PmCTICE AND FORMS SECOND EDITION BY CHARLES C, MONTGOMERY, B. A., LL. B. OF THE Los ANGELES, CALIFORNIA, BAR PROFESSOR FEDERAL JURISDICTION AND PROCEDURE AND OF EQUITY JURISPRUDENCE AND PROCEDURE, COLLEGE OF LAW, UNIVERSITY OF SOUTHERN CALIFORNIA. FORMERLY PROFESSOR CONSTITUTIONAL LAW, CREIGHTON UNIVERSITY, OMAHA, NEBRASKA. SAN FRANCISCO BANCROFT- WHITNEY COMPANY 1918 PREFACE TO SECOND EDITION. Since the preparation of the manuscript for the first edition of this Manual a large number of decisions have been published settling points of practice under the new equity rules ; also there have been a number of new statutes passed bearing on the jurisdiction and procedure of the federal courts. The revision follows out the plan of the original work in gathering into one volume of convenient size all the statutes and court rules bearing on the subject of procedure, at law, in equity and in criminal cases, and the special procedure for removal and appeal and error. A complete rearrangement, however, has been found necessary to accommodate new matter. Tables of statutes, code sections, Supreme Court rules, C. C. A. rules, equity rules and constitutional provisions and amendments have been added to supplement the index in assisting the practi- tioner to find what is in the book in the quickest and easiest way. The Circuit Courts of Appeals rules have been so arranged that the practitioner may see at a glance the rules in his own circuit and the corresponding and similar rule in other circuits. The equity suit occupies thirty-four chapters in the revision instead of ten chapters in the original work. These additional chapters are to accommodate the new decisions. Many new forms and suggestions have been added. It is hoped that the Manual will greatly lighten the labor of the practitioner in the preparation and trial of his cases in the federal courts. CHARLES C. MONTGOMERY. \ Los Angeles, May, 1918. PREFACE TO FIRST EDITION. This Manual contains in one volume, of convenient size for office or court room use, verbatim all the federal statutes and court rules (except district courts) relating to the practice and procedure of the ordinary law, equity, or criminal case in the federal courts, with many forms and suggestions as to the steps to be taken in such cases. Many statutes on procedure are not included in the new Judi- cial Code, particularly statutes of limitations, evidence, witnesses, depositions, and costs and fees. These are included verbatim in the text, as well as the provisions of the Judicial Code annotated, and with amendments to date. The Judicial Code is also set out in its original form in the Appendix, with references to the places where its various provisions may be found in the text. The new equity rules are set out and annotated in the Appendix, and quoted verbatim in the text whenever bearing on the subject thereof. The Supreme Court rules and rules of all the Circuit Courts of Appeals are set out in the Appendix, and, where necessary, are quoted and referred to in the text. The verbatim quoting of the statutes and rules is in such form that there can be no confusion as to what is and what is not a part of the statute or rule quoted. The forms are scattered through the work in juxtaposition to the laws or rules on which they are based. There are threefold, and in many instances fourfold, references to other works, authoritative publications containing such statutes or rules. "With the assistance of the Manual, the practitioner may, (Tii) Vlll PREFACE TO FIRST EDITION. with the present law in convenient form at hand, quickly refer to its former condition, and note the similarities or changes therein. The references and annotations will also be useful in working out some of the finer points of practice, the work being designed as a guide book rather than an exhaustive treatise. I am gratefully indebted to Mr. Claire T. Yan Etten, of the Los Angeles Bar, for chapters 11, 28, 39, 40 and 41, relating to appellate jurisdiction and procedure of the Supreme Court and Circuit Court of Appeals, and also chapter 37, on "Receivers and Injunctions," and for other valuable assistance in the work. I am likewise indebted to Mr. Paul Vallee, of the Los Angeles Bar, for the annotations to the Judicial Code, the arrangement of the rules of the Circuit Courts of Appeals in the Appendix, and for much other useful aid in the preparation of the work. CHARLES C. MONTGOMERY. Los Angeles, California, May 1, 1914. TABLE OF CONTENTS. CHAPTER 1. THE FEDERAL JUDICIAL SYSTEM. SEO. 1. Functions of the Federal Courts. 2. Federal Jurisdiction Limited. 3. Judicial Power Under the United States Constitution. 4. Federal Courts Enumerated. 5. Federal Procedure at Law and in Equity. 6. Differences in Procedure at Law and in Equity in the Federal Courts. 7. Actions at Law Wherein Conform to State Practice. 8. Suits in Equity Rules of Procedure. 9. Possibility of a Federal Blended Procedure. 10. Differences Between Federal and State Court Procedure. 11. Why a Special Study of Federal Procedure Required. 12. Desirability of Special Study of Federal Procedure. CHAPTER 2. JUDICIAL OFFICERS DISTRICT COURT. 20. Judicial Officers Enumerated. 21. Judges Division of Business and Assignment of Cases for Trial. 22. Designation of District Judges to Hold Court in Place or Aid of Another District Judge. 23. Circuit Judge, When to Act as District Judge. 24. Outside District Judges for Districts in the Second Circuit. 25. Substitutes in Cases of Interest, Relationship, Bias or Prejudice. 26. Duties a*nd Powers of Judges Designated in Place or Aid of District Judges. 27. Other Judicial Officers Disqualification for Appointment. 28. Clerks and Deputy Clerks. 29. Marshals. 30. Deputy Marshals. 31. Marshal's Field Deputies. 32. Criers and Bailiffs. 33 United States District Attorneys. 34. Assistant District Attorneys. 35. Court Commissioners. TABLE OF CONTENTS. CHAPTER 3. JUDICIAL DISTRICTS, TEEMS, EECORDS, EEPOETS AND RULES OF PRACTICE. SEO. 50. Judicial Districts, Terms and Places of Holding Court. 51. Special Terms, Adjournments and Continuances. 52. When Courts are Open. 53. Orders of Judge at Chambers and in Vacation. 54. District Court Records. 55. Reports of Decisions. 56. Admission to Practice Before. 57. Rules of Practice Law Actions. 58. Rules of Practice Equity Suits. CHAPTER 4. TERRITORIAL JURISDICTION VENUE. 60. In General. 61. Civil Suits In General. 62. Nonlocal Suits in State of More than One District. 63. Nonlocal Suits Where District Contains More than One Division Criminal Cases Transfer. 64. Local Suits With Defendant in Another District Same State. 65. Local Suits With Subject Matter Lying Partly in One District and Partly in Another. 66. Liens Clouds on Title Absent Defendant. 67. Receiver's Jurisdiction Over Real Property in Other Districts in Circuit. 68. Transfer to Another Division on Stipulation. 69. On Creation of New District or Division or Transfer of Territory. 70. Same Preservation and Enforcement of Lions. 71. Infringement of Letters Patent. 72. Under Copyright Laws. 73. To Enjoin Comptroller of Currency. 74. Part of Several Defendants not Found. 75. Crimes and Offenses. 76. Penalties and Forfeitures. 77. Taxes and Internal Revenue. 78. Condemnation Insurrectionary Property. 79. Seizures for Forfeiture Embargo or Insurrection. 80. Prosecutions for Failure to File Tariffs, Giving Rebates, etc. 81. Prosecutions for Violations of the Sixteen Hour Law. 82. Suits Affecting Orders of Interstate Commerce Commission. TABLE OP CONTENTS. XI SEO. 83. Prosecutions for Injuries to Fortifications. 84. Prosecutions of Offenses Against the Postal Laws in Selling Intoxicat- ing Liquors. 85. Prosecutions for Violations of Immigration Lawa. 86. Issue of Venue How Raised. CHAPTER 5. DISTRICT COURT'S JURISDICTION. 90. In General. 91. District Court Jurisdiction Exclusive of State Courts. 92. Exclusive Jurisdiction. 93. District Court Jurisdiction Concurrent With that of State Courts Amount in Controversy. 94. Original Jurisdiction. 95. Original Jurisdiction Interpleader of Insurance Companies. 96. Jurisdiction Prosecution Violation of Immigration Laws. 97. Jurisdiction by Assignment. 98. Agriculture. 99. Alien Enemies. 100. Same Duties of Marshal. 101. Customs Duties. 102. Rivers, Harbors and Canals Actions to Remove Obstructions. 103. White Slave Traffic. 104. Appellate Jurisdiction Chinese Exclusion Laws. 105. Appellate Jurisdiction Yellowstone National Park. 106. Jurisdiction of Crimes on Indian Reservations South Dakota. 107. Power to Enforce Foreign Consular Awards. 108. Powers of Foreign Consuls Over Disputes Between Seamen. 109. Arrest of Seamen on Application of Consul. 110. Commitment and Discharge. 111. Jurisdiction in Cases Transferred from Territorial Courts. 112. Jurisdiction Under Reclamation Act. 113. Jurisdiction Under Income Tax Law. 114. Jurisdiction in Arbitration of Disputes Between Common Carriers and Employees. CHAPTER 6. FEDERAL QUESTIONS. 120. What is a Federal Question! 121. Arises in Suits With Federal Officers Involving Official Acts. 122. Arises in Suits With Federal Corporations Existing Under Federal Laws. ill TABLE OF CONTENTS. SEO. 123. Exception Suits With National Banks Other Than by or Against Of- ficers of the United States. 124. Arising Under the Constitution. 125. As a Ground of Original Jurisdiction. 126. As a Ground for Removal. 127. Citizenship not Material in Suits Involving a Federal Question Ex- cept When Affecting Venue. 128. Amount Required to be in Controversy. 129. Question must Appear on the Face of the Bill in the Federal Court. 130. How Question must Appear in a State Court to be Removed to Federal Court. 131. Plea of Res Adjudicata as Raising a Federal Question. 132. Raising the Issue as to Federal Question. CHAPTER 7. DIVERSE CITIZENSHIP. 140. In General. 141. What is Citizenship! 142. Territorial and District of Columbia Citizens are not Included. 143. States and Territories are not Citizens. 144. Corporations. 145. Joint Stock Companies. 146. Partnerships. 147. National Banks. 148. Married Women. 149. Personal Representatives. 150. Trustees. 151. Guardians. 152. Aliens. 153. Indians. 154. Term "Citizen" Collective. 155. Change of Domicile After Suit Commenced. 156. Change of Citizenship or Transfer of Subject Matter to Give Juris- diction. 157. Shifting Parties to Create Diversity. 158. Venue as Affecting Jurisdiction Based on Diverse Citizenship. 159. Issue of Citizenship How Raised. 160. When Want of Diversity Appears on the Trial. 161. Amendment to Show Diversity. TABLE OF CONTENTS. XI 1! CHAPTER 8. AMOUNT IN CONTROVERSY. BECL 170. In General. 171. When Amount in Controversy is Material. 172. Same Removal of Land Grant Cases. 173. When the Amount in Controversy is not Material. 174. What is "Amount in Controversy." 175. Amount Stated in Declaration or Bill Controls Unless Pleaded Erro- neously or in Bad Faith. 176. Amount in Controversy Includes What. 177. Effect of Valid Setoff or Payment. 178. Aggregating Amounts to Create Jurisdiction. 179. Amendment to Show. 180. State Statutes Do not Control as to Splitting Demands. 181. Raising Issue as to Amount or Good Faith. CHAPTER 9. REMOVAL OF CAUSES JURISDICTION AND PROCEDURE. 190. In General. 191. Jurisdiction First Four Classes of Removal Cases. 192. x Class One; Removal by Defendant or Defendants on Ground of Fed eral Question. 193. Class Two; Removal by Nonresident Defendant or Defendants on Ground of Diverse Citizenship. 194. Class Three; Removal of a Separable Controversy Wholly Between Citizens of Different States. 195. Procedure on Removal Class One, Two and Three Petition for Re- moval to be Filed Before Appearance Day in State Court. 196. Bond on Removal in Classes One, Two and Three. 197. Duty of State Court in Such Cases. 198. Notice to Adverse Party in Such Cases. 199. Procedure After Removal in Classes One, Two, and Three. 20. Class Four; Removal on Ground of Prejudice. 201. Remanding Separable Controversy in Class Four. 202. Remanding upon Failure to Show Prejudice Class Four. 203. Remanding in Classes One, Two, Three and Four. 204. Common Carrier Employers' Liability Cases not Removable, nor for Property Damages, Unless in Excess of $3,000 Involved. 205. Class Five; Suits Between Citizens of a State Under Land Grants from Different States. XIV TABLE OF CONTENTS. SEC. 206. Class Six; Removal of Suits of Aliens Against Officers. 207. Class Seven; Removal of Civil Eights Cases. 208. Habeas Corpus Proceedings Where Civil Bights Denied, and Othei Cases. 209. Class Eight; Bemoval in Cases Against Revenue or Congressional Officers. 210. Procedure on Eemoval Under Class Eight Cases Against Revenue or Congressional Officers. 211. Procedure After Eemoval in Class Eight. 212. Certiorari and Habeas Corpus Proceedings in Class Eight Suits Against Eevenue or Congressional Officers. 213. Proofs of Eecords When Copies Eefused by State Court Clerks. 214. Enforcement of Eeturn of Record from State to Federal Courts. 215. Eemand or Dismissal of Case Fraudulently or Improperly Removed. 216. Provisional Remedies of State Court Preserved -Bonds Given in State Suit Valid on Eemoval. 217. Proceedings After Eemoval Generally. CHAPTER 10. STATUTES OF LIMITATIONS. 230. In General. 231. Capital Offenses. 232. Offenses not Capital. 233. Unless Fleeing from Justice. 234. Crimes Under Revenue and Slave-trade Laws. 235. Crimes Under Internal Revenue Laws. 236. Seduction of Female Passenger on Vessel. 237. Violation of Naturalization Laws. 23$. Penalties and Forfeitures Under Federal Laws. 239. Penalties and Forfeitures Under Customs Revenue Laws. 240. Settlements for Customs Duties. 241. Forfeiture or Penalty Under Copyright 'Laws Criminal Prosecutions. 242. Forfeiture and Damage Suits for False Claims Against United States. 243. Claims Against United States. 244. Recovery of Taxes Wrongfully Collected. 245. Suits by United States to Vacate Land Patents. 246. Suits by United States to Vacate Railway or Wagon Road Patents. 247. Suits by Patentee of Lands Patented to Indians. 248. Under Employers' Liability Acts and Under Act Limiting Hours of Labor. 249. Action for Neglect to Prevent Conspiracy Against Civil Rights. 250. Infringement of Patent. TABLE OF CONTiSNTS. XV SEO. 251. Infringement of Copyrights. 252. Liability of Stockholders of National Banks. 253. Interstate Commerce Act. 254. Suspension of Statute of Limitations Under Trading With the Enemy Act. CHAPTER 11. EVIDENCE. 270. In General. 271. Statutes of United States Evidence of Little and Brown's Edition. 272. Same Supplement of Revised Statutes. 273. Same Richardson's Supplement of Revised Statutes. 274. Proof State and Foreign Legislative Acts and State Court Records and Proceedings. 275. Exemplified Copies Records of Public Offices, not Appertaining to a Court in States and Territories. 276. Copies of Foreign Records Filed in Department Offices Relating to Land Titles in United States. 277. Copies Extracts from Journals of Congress Certified. 278. Pamphlet Copies of Statutes and Bound Copies of Act*. 279. Printed and Bound Copies of Acts. 280. Copies Lost or Destroyed Judicial Records. 281. Restoration of Lost or Destroyed Judicial Records. 282. Copies Lost Supreme Court Record. 283. Restoration of Records Service of Notice on Nonresidents. 284. Copies Lost Returns and Official Papers Judicial Officers. 285. Restoration of Records in Which United States are Interested by United States Attorneys. 286. Copies Executive Department Records, etc. 287. Copies Solicitor of the Treasury Records, etc. 288. Copies Comptroller of the Currency Records, etc. 289. Copies National Bank Organization Certificates. 290. Copies Bonds, Contracts, and Other Papers of United States In Set- tlement of Accounts with Government. 291. Copies Treasury, War, Navy, Records in Suits Against Delinquents. 292. Same Certification of Copies to be Made by Secretary or an Assist- ant Secretary of the Treasury under Seal of Department. 293. Copies Treasury Department Books and Proceedings in Embezzlement Suits. 294. Copies Department of the Interior. 295. Copies Postoffice Records. 296. Copy Pestoffice Department Demand on Postmasters. XVI TABLE OF CONTENTS. SEO. 297. Copies Land Office Records Certification of. 298. Subpoena Duces Tecum to Register of Land Office. 299. Copies Commissioner of Indian Affairs Certification of. 300. Copies Patent Office Records, Letters Patent, etc. 301. Copies Foreign Letters Patent. 302. Copies Printed Copies of Specifications and Drawings of Patents. 303. Copies Patent Office Records Trademarks. 304. Copies United States Consular Records. 305. Cop'ies United States Clerks' New Records in Certain States. 306. Copies United States Clerks' New Records North Carolina. 307. Judicial Notice Taken of the Seal of the Department of Commerce and Labor. 308. Burden of Proof Seizure Cases under Customs Duties Laws. 309. Reports of Investigations of Accidents from Failure of Boilers Not Admissible in Damage Suits. 310. Government Paramount Title does not Affect Mining Titles Possessory Action. 311. Publication of Interstate Commerce Reports and Decisions as Evi- dence. 312. Proof of Signature and Handwriting. 313. Things as Evidence Under Alaska Prohibition Laws. 314. Sufficiency of Evidence to Convict Under Alaska Prohibition Laws. 315. Prima Facie Evidence Under District of Columbia Prohibition Law. 316. Same Payment of Special Taxes. CHAPTER 12. WITNESSES. 330. Competence of Witnesses Determined by State Laws. 331. Competency of Witnesses in Prosecutions Under Alaska Prohibition Laws. 332. Perjury not Now a Disqualification. 333. Not Disqualified by Claiming Compensation Under Customs Revenue Laws. 334. Officers and Informers not Disqualified in Suits for Fines, Penalties, or Forfeitures. 335. Immunity of Witnesses in Cases Under Commerce and Anti-trust Laws. 336. Immunity in Criminal Cases. 337. Same Testimony Given Before Congress. 338. Defendant as Witness in Criminal Proceedings. 339. Compulsory Process for Witnesses in Criminal Cases. TABLE OP CONTENTS. IV11 8EO. 340. Recognizance of Witnesses Criminal Case*. 341. Same In Vermont. 342. Same On Behalf of the United States by District Attorney. 343. Subpoena for Witnesses in Another District. 344. Subpoena and Attendance of Witnesses for United States. 345. Subpoena for Witnesses for Indigent Defendant in Criminal Cases. 346. Enforcing Attendance and Testimony of Witnesses. 347. Court's Power to Punish Witnesses for Contempt. / 348. Fees and Mileage of Witnesses Who Testify on Letters Rogatory. 349. Amount of Fees and Mileage of Witnesses. 350. Fees and Mileage in Certain States Double Mileage Prohibited. 351. Subpoena for Witnesses in Contested Patent Cases. 352. Enforcing Attendance and Testimony of Witnesses in Patent Cases. 353. Fees of Witnesses in Patent Cases. 354. Subpoena to Witnesses in Claim Cases Against United States Pend- ing in Departments. 355. Enforcing Attendance and Testimony of Witnesses in Claim Cases Against United States Pending in Departments. 356. Fees of Witnesses in Claim Cases Against United States Pending in Departments. 357. Compulsory Attendance of Witnesses Under Interstate Commerce Act. 358. Compulsory Attendance of Witnesses Under-Income Tax Law. 359. Administration of Oaths. 360. Discovery Under Act for National Security and Defense Stimulating Agriculture. 361. Compelling Attendance of Witnesses, etc., Under Act Establishing Bureau of War Bisk Insurance, CHAPTER 13. DEPOSITIONS. 370. In General. ,1 371. Time for Taking Depositions at Law. 372. Time for Taking Depositions in Equity. 373. Same Depositions in Equity After Issue. 374. Grounds for Depositions in Equity: When Allowed by Statute, or for Good and Exceptional Cause. 375. Depositions De Bene Esse Conditions for Taking and Using. 376. Officers Before Whom Depositions De Benc Esse may be Taken. 377. Notice of Taking Depositions De Bene Esse. 378. Compelling Attendance of Witness Depositions De Bene Esse. 379. Mode of Taking Depositions De Bene Esse. 380. Equity Rule as to Form of Deposition. XVill TABLE OP CONTENTS. SEO. 381. Equity Rule as to Objections to Evidence. 382. Equity Rule as to Signing Deposition. 383. Delivery into Court of Depositions De Bene Eug. 384. Depositions Under a Commission. 385. Witnesses Exempt from Attendance Depositions Under a Commission. 386. Compelling Attendance and Testimony of Witnesses for Depositions Under Commission. 387. Compelling Production of Papers, Written Instruments, Books or Docu- ments in Taking Depositions Under a Commission. 388. Depositions to Perpetuate Testimony Under State Laws Admissible in Court's Discretion. 389. Depositions may be Taken in Mode Prescribed by State Law. 390. Depositions in Equity Under Court Order Before Commissioner, Master or Examiner. 391. Same Notice. 392. Deposition in Equity Published on Filing. 393. Letters Rogatory or Commissions to Take Depositions of Witnesses in Foreign Countries. 394. Taking Testimony to be Used in Foreign Countries. 395. Same Witness Need not Criminate Himself. 396. Publicity in Taking Depositions in Anti-trust Cases. CHAPTER 14. COSTS AND FEES. 400. In General. 401. Taxable Costs and Fees. 402. Bill of Costs. 403. Same Must be Verified. 404. Costs Indigent Parties. 405. Payment of Costs and Witness Fees for Indigent Defendant in Crim- inal Cases. 406. Costs not Allowed for Recovery Less Than Five Hundred Dollars. Where Amount in Controversy Material or Libelant Recovers Less Than Three Hundred Dollars. 407. Costs Where Cases can be Consolidated. 408. Mode .of Recovery of Fees. 409. Fees of Attorneys, Solicitors, Proctors. 410. Attorney's Liability for Costs Vexatiously Increased. 411. Fees Salary United States District Attorney. 412. Clerks' Fees. 413. Marshals' Fees. 414. Attorneys, Clerks aad Marshals' Fees Under Civil Rights "Lam. TABLE OF CONTENTS. lix SEC. 415. Fees of United States Commissioners. 416. Same Under Chinese Exclusion Laws. 417. Costs and Witness Fees in Extradition Cases. 418. Witnesses' Fees. 419. Court Officer not Entitled to Witness Fees. 420. Witness Fees Depositions in District of Columbia. 421. Same Under Letters Rogatory from a Foreign Country. 422. Witness Fees of Seamen. 423. United States Liable for Only Four Witness Fees on Preliminary Crim- inal Examination. 424. Witness Fees in Prize Cases How Paid. 425. Juror Fees Grand and Petit. 426. Mode of Payment Juror and Witness Fees.- 427. Printer's Fees. 428. Same Folio Defined. 429. Appraiser's Fees on Execution Sales. 430. No Costs Against United States in Internal Revenue Suits upon In- formation. 431. No Costs Against Prosecutor nor for Claimant When Reasonable Cause for Seizure. 432. Successful Claimant Entitled to Possession When His Own Costs Paid. 433. Double Costs Against Nonsuited Plaintiff in Action Against Revenue Officer. 434. Defendant Subjected to Fine, Forfeiture or Conviction Shall Pay Costs of Prosecution. 435. Defendant to be Awarded Costs if Informer on Penal Statute Nonsuited or Discontinues. 436. Informer on Penal Statute to Pay Costs if Nonsuit or Discontinuance. 437. Costs in Copyright Suits. 438. Costs on Infringement of Patent. CHAPTER 15. AN ACTION AT LAW SUMMARY. 450. In General. 451. Initial Pleading. 452. Attachment and Garnishment. 453. Process. 454. Defensive Pleading. 455. Amendment. 456. Continuances and Adjournments. 457. Consolidation. XX TABLE Otf CONTENTS. SEC. 458. Trial by Jury. 459. Trial by Judge. 460. Depositions, Evidence, Witnesses. 461. Charge to Jury and Verdict. 462. Judgment and New Trial. 463. Execution. CHAPTER 16. THE INITIAL PLEADING LAW ACTIONS. 470. Differences Between Federal and State Initial Pleadings. 471. Effect of Failure to Show Jurisdietional Grounds. 472. Effect of Erroneously Beginning as a Suit in Equity. 473. Legal and Equitable Causes of Action may not be Joined. 474. Form of Initial Pleading. CHAPTER 17. ATTACHMENT AND GARNISHMENT IN LAW CASES. 480. Attachment and Garnishment Adoption of State Laws Except Against National Banks. 481. Rules by Federal Courts Adopting State Attachment Remedies. 482. Construction of State Attachment Statutes by State Courts Followed in Federal Courts. 483. Attachment not a Basis for Substituted Service, but Merely a Provi- sional Remedy. 484. Causes of Action in Which Attachments are Authorized Governed by State Law. 485. Property Subject to Attachment State Laws Govern. 486. Affidavit for Attachment Should Conform to State Law. 487. Amendment of Affidavit for Attachment. 488. Bond for Attachment. 489. The Writ of Attachment Amendment, 948, Rev. Stats. 490. Lien of Attachment. 491. Priorities Several Attachments. 492. Delivery Bond. 493. Third-party Claims Follow StaAe Laws. 494. Dissolution of Attachments Under 933, Rer. Stats. Conforms to State Laws. 495. Attachments in Postal Suits. 496. Same Application for Warrant Under 925, Rev. Stats. 497. Same Issuing Warrant Duties of Clerk and Marshal Under 926, Bev. Stats. TABLE OP CONTENTS. XXI raa 498. Same Ownership of Property Trial Under 927, Rev. Stats. 499. Same Proceeds of Sale Investment Under 928, Rev. State. 500. Same Publication of Warrant Under 929, Rerv. Stats. 501. Same Garnishees of Delinquents in Postal Suits Under 930, Rev. Stats. 502. Same Discharge of Warrant on Giving Bond Under 931, Rev. Stats. 503. Same Adoption of State Attachment Laws and Former Practice not Affected by Postal Attachment Laws. 504. Garnishment General Statement. 505. Effect of Garnishment. 506. Notice of Garnishment. 507. Persons and Property Subject to Garnishment. 508. Issue by Garnishee. 509. Judgments Against Garnishee. CHAPTER 18. PROCESS LAW ACTIONS. . v. 520. In General. 521. When Suit is Begun. 522. The Forms of Process for the Commencement of Suits, Except as to Signature, Teste and Sealing, Conform to State Practice. 523. Amendment of Process. 524. By Whom Process is Served. 525. Method of Service of Process. 526. Service by Publication Under 57, Jud. Code. 527. Special Appearance. 528. Suit in Forma Pauperis. CHAPTER 19. DEFENSIVE PLEADING LAW ACTIONa 540. In General. 541. Time and Order of Pleading Conform to State Laws. 542. Default Judgment. 543. Forms of Pleadings Conform to State Practice. 544. Sufficiency, Scope and Manner of Pleading Conform to State Laws. 545. Equitable Defenses to an Action at Law. 546. Amendment of Pleading. XX11 TABLE OF CONTENTS. CHAPTER 20. CONTINUANCES AND ADJOURNMENTS. SEO. 560. Continuances In General. 561. Continuances on Death of Party. 562. Survival of Action. 563. Continuance of Suit Against Delinquent in Suit for Public Moneys. 564. Continuances of Suits Under Postal Laws. 565. Continuances of Suits on Debentures. 566. Continuances of Suits Under Tariff Laws. CHAPTER 21. MISCELLANEOUS INCIDENTAL MATTERS. 570. Consolidation of Cases. 571. Discovery At Law. 572. Motion and Notice to Produce Books or Papers in Civil Suits Under Customs Revenue Laws. 573. Dismissal or Nonsuit. 574. Verification Oaths Acknowledgments. CHAPTER 22. TRIAL LAW ACTION* 580. In General. 581. Method of Trial Under 566, Rev. Stats. 582. Cases to Which Provision not Applicable. 583. Constitutional Jury Twelve Men. 584. Qualifications and Exemptions In General. 585. Same Under Civil Rights Acts. 586. 'Same Penalty for Exclusion. 587. Exempt After Serving Term in a "Year. 588. Jurors From Where Drawn. 589. Impaneling Jurors. 590. Venire Issuance and Return. 591. Talesmen for Petit Juries. 592. Special Juries. 593. Challenges. 594. Trial by Judge. 595. Mode of Proof Law Actions. TABLE OF CONTENTS. I BEG. 596. The Taking of Exceptions Doe* not Conform to State Practice. 597. Time for Excepting to Rulings. 598. Conduct of the Trial. 599. Charge to the Jury Instructions. CHAPTER 23. VERDICT MOTION FOB NEW TRIAL BILL OF EXCEPTIONS. 610. Special Verdict. 611. Form and Effect of General Verdict. 612. Amendment of Verdict. 613. Motion for New Trial. 614. Bill of Exceptions Authentication, Signing and Contents. CHAPTER 24. JUDGMENTS AND EXECUTION LAW ACTIONa Judgments In General. Executions In General. Judgments at Law Generally Conform to State Practice. Interest on Judgments Bate, Allowance of, Levy for Conforms to State Law. 624. Judgments Kind of Money Payable in Suits for Duties. 625. Becord of Judgment as Bequired by State Laws. *>26. Indexes of Judgment Becords. 627. Lien of Judgment Manner and' Extent Conform to State Laws. 628. Lien of Judgment or Execution not Divested by Creation of a New Dis- trict or Division, nor by the Division or Transfer of Territory. 629. Amendments of Judgment. 630. Vacation of Judgment Governed by Federal Decisions. 631. Executions in Common-law Causes Conform to State Statutes by Bule of Court. 632. Executions not to Issue Against Bevenue Officers for Moneys Paid into Treasury on Probable Cause. 633. Execution Stay Pending Motion for New Trial Vacation of Judgment by Granting New Trial. 634. Execution Stay for One Term Where State Law Allows Such Stay. 635. Executions may Bun and be Executed in Any Part of a State, and on Behalf of the United States in Any Other State or Territory. 636. Execution Imprisonment for Debt Modifications of State Law Adopted. XXIV TABLE OF CONTENTS. SEC. 637. Execution Discharge from Arrest or Imprisonment in Civil Actions Con- form to State Laws. 638. Execution Imprisonment for Debt in Government Suits Discharge of Poor Debtor Under 3471, Rev. Stats. 639. Same Discharge by President When Secretary of Treasury not Author- ized. '640. Execution Sale of Eeal Estate or Personal Property Place of Sale. 641. Execution Sale of Real Estate Publication of Notice. 642. Execution Sale of Real Estate Marshal's Successor to Continue Pro- ceedings. . 643. Execution Sale of Real Estate in Government Suits Purchase by Government. 644. Execution Sale of Personal Property Appraisal Under 993, Rev. Stats., in Same Manner as Required by State Law. CHAPTER 25. A SUIT IN EQUITY SUMMARY. The Bin. 'V 1 ^ . Precipe and Subpoena. 662. Discovery Interrogatories by Plaintiff. 663. Depositions Under Order of Court. 664. Return of Subpoena. 665. Time for Defensive Pleading. 666. Hearing of Motion to Dismiss. 667. Time for Answer After Overruling Motion to Dismiss. 668. Time for Answer to Amended Bill. 669. Issue When No Counterclaim or 'Setoff. 670. Discovery Interrogatories by Defendant. 671. Depositions in Special Cases After Filing the Bill Before Issue Joined. 672. "Counterclaim Time for Serving Copy on Other Defendants. 673. Motion to Strike Out Defense. 674. Time for Reply. 675. Issue When Counterclaim or Setoff is Pleaded. 676. Trial Calendar. 677. Depositions After Case on Trial Calendar. 678. Continuances. 679. Reinstatement of Cases Dropped from Calendar Time for. TABLE OP CONTENTS. XXV CHAPTER 26. THE BILL, IN EQUITY. SEO. 690. General Statement. 691. Differences Between State and Federal Statement of Cause of Action. 692. Contents of a Bill in Equity Equity Rule 25. 693. Caption of the Bill. 694. Citizenship and Residence of Parties. 695. Jurisdictional Grounds. 696. Statement of Ultimate Facts The Cause of Action. 697. Proper Parties. 698. The Prayer of the Bill. 699. Signing the Bill. 700. Verifying the Bill CHAPTER 27. PARTIES. 710. Real Party in Interest; Necessary Parties; Intervention Rule 37. 711. Defect of Parties may Cause Dismissal on Court's Own Motion. 712. Real Party in Interest Capacity of Plaintiff to Sue. 713. Persons Having an Interest may Join as Plaintiffs. 714. Party Refusing to Join as Plaintiff may be Made a Defendant. 715. Class Suits Rule 38. 716. Common Interest a Material Issue. 717. Representatives of a Class. 718. Where Parties have a Representative Others may not Sue Unless Rep- resentative Refuses to Act. 719. Absence of Persons Who Would be Proper Parties Rule 39. 720 Absence of Parties Illustrations. 721. Nominal Parties Rule 40. 722. Heir as Party Suit to Execute Trusts of Will Rule 41. 723. Joint and Several Demands Rule 42. 724. Saving Rights of Absent Parties Where Defendant Makes Tardy , Objection Rule 44. CHAPTER 28. INTERVENTION. 730. Intervention Last Part Rule 37. 731. Intervention Does not Lie for Unliquidated Demands. 732. Citizenship of Intervener and Amount of Claim not Material to Juris- diction. 733. Procedure. XXVi TABLE OF CONTENTS. CHAPTER 29. STOCKHOLDERS' BILL. SEC. 740. The Equity Eule No. 27. 741. Stockholders' Bill Old and New Eules Compared. 742. Same Purposes of the Eule. 743. Allegation as to "Reason for not Making Such Effort." 744. Where Statutory Receiver has Been Appointed. CHAPTER 30. JOINDER OF CAUSES OF ACTION. 750. The Equity Eule No. 26. 751. Eule Available to Both Parties Alike. 752. Examples of Joinder. 753. Causes of Action must be Within Court's Jurisdiction to be Joined. CHAPTER 31. AMENDMENTS. 760. Amendments Eules 28 and 19. 761. Amendments to Cure a Variance. 762. Amendment Where Plaintiff Fails to Set Down for Argument Objec- tion in Answer for Defect of Parties Rule 43. 763. Amendment on Death of Party Rule 45. CHAPTER 32. SUPPLEMENTAL PLEADING. 770. The Equity Rule No. 34. 771. - Supplemental Pleading Used to Bring in Matters Occurring Since Original Pleading Filed. 772. Allowance of Supplemental Pleadings in Court's Discretion. 773. Equity Rule 35 as to Form of Supplemental Pleading. TABLE OP CONTENTS. XXV11 CHAPTER 33. EEVIVOR. SEC. 780. The Equity Bule No. 45. 781. Eevivor may be Made by Motion. Time. 782. Revival in Stockholder's Suit. CHAPTER 34. PROCESS IN EQUITY. 790. The Summons in Equity is the Subpoena* 791. Issue Form Return of Subpoena. 792. The Precipe. 793. The Subpoena. 794. "Alias Subpoenas. 795. Process in Behalf of and Against Persons not Parties., 796. Process by Whom Served. 797. Manner of Serving Subpoenas. 798. Forms of Returns. 799. Form of Process and Return How Governed. 800. Substituted Service. CHAPTER 35. DECREE PRO CONFESSO. 810. Time for Defensive Pleading Twenty Days After Service of Subpoena. 811. Default When Taken. 812. Pleading Required to Save from Decree Pro Confesso. 813. Decree Pro Confesso When Made Final. CHAPTER 36. DEFENSIVE PLEADINGS EQUITY. 820. Kinds of Defensive Pleading. 821. Motion Day. 822. Notices. 823. Motions Grantable of Course, 824. Defect of Parties. 825. Notice of Orders. XXV111 TABLE OF CONTENTS. CHAPTER 37. TRANSFERRING TO LAW SIDE ADEQUATE REMEDY AT LAW. SEC. 840. Action at Law Erroneously Begun as Suit in Equity to be Transferred to Law Side Under Rule 22. 841. Amendment of Pleadings to Conform Action to Proper Side of Court Law or Equity. 842. Amendment Setting Up a New Cause of Action Does not Relate Back to Prevent Bar of Statute of Limitations. 843. Motion Should be to Transfer to Law Side Under Rule 22 or to Deter- mine Questions of Law Under Rule 23, and not to Dismiss Under ' Rule 29. 844. Rules 22 and 23 Do not Change Mode of Beginning a Suit in Equity. 845. Equity Suits not Maintainable Where Legal Remedy Adequate. 846. What is an Adequate Remedy at Law. 847. Necessity of Mixed Character of Remedies Gives Equity Jurisdiction as Legal Remedy Alone is not Then Adequate. 848. Where Recovery of Money is Only Relief Sought Remedy at Law is Adequate. 849. Where Account may be Adjusted by Jury Remedy at Law Adequate. 850. Where Remedy at Law Does not Afford a Practical and Efficient Result Equity may Take Jurisdiction. 851. When Legal Remedy Need not be Exhausted to Maintain Creditor's Bill. CHAPTER 38. ADMINISTERING LEGAL RELIEF IN AN EQUITABLE SUIT. 860. The Rule in Equity No. 23. 861. Illustrations Specific Performance and Damages Quiet Title and Possession. 862. Court may Submit Incidental Issues to a Jury. 863. Where* Equitable Jurisdiction Wholly Fails, Equity will not Retain Case to Determine Legal Issues. 864. The Rule Does not Permit the Joinder of Legal and Equitable Claims to Make Up the Necessary Jurisdietional Amount in Controversy. CHAPTER 39. MOTION TO DISMISS IN POINT OF LAW. 880. Motion to Dismiss Under Equity Rule 29. 881. Applies to Bankruptcy Cases. 882. Admits Allegations of Bill Well Pleaded. TABLE OF CONTENTS. XXIX SEO. 883. A Motion to Dismiss is in Effect a Demurrer, Evidence not to be Con- sidered. 884. Same Defense of Another Suit Pending cannot be Raised on Motion to Dismiss. 885. Same Defense of Special Statute of Limitations not Allowed on a Motion to Dismiss. 886. Motion to Dismiss Nonjoinder. 887. Defense in Bar Set Up on Motion to Dismiss. 888. Motion to Dismiss on Ground of Laches. 889. Judicial Notice in Aider of Motion to Dismiss. 890. Motion to Dismiss on Plaintiff's Answers to Interrogatories. 891. Illustration of Motion to Dismiss. CHAPTER 40. ANSWER AS A PLEA. 900. The Equity Rule No. 29. 901. Separate Hearing of Answer as a Plea. 902. Answer as a Plea may be Disposed of Either as an Issue of Law or of Mixed Law and Fact. 903. Answer as a Plea Should also Show Defendant's Other Defenses Should Set Out Defendant's Whole Defense. 904. On Sustaining of Plea Court will Dismiss the BUL CHAPTER 41. TO OBTAIN FTJBTHEB AND BETTER STATEMENT OR PARTICULARS. 920. Definiteness and Certainty Rule 20. 921. Bill of Particulars. 922. Is a Matter of Discretion. 923. Cannot be Used to Obtain Information of Facts Which are Matters of Expert Testimony. 924. Can be Used to Narrow the Issues by Requiring Defendant to Particularize. CHAPTER 42. STRIKING OUT REDUNDANT, IMPERTINENT OR SCANDALOUS MAT- TER UNDER RULE 21. 930. Striking Out Rule 21. 931. Illustration of Impertinent Matters. 932. Illustration of Scandalous Matters. 933. Error in Striking must be Corrected by Appeal and not by Mandamus. XXX TABLE OF CONTENTS. CHAPTER 43. DISCOVERY. SEO. 940. The Equity Rule No. 58. 941. Alters Procedure not Principles of Discovery. 942. Not a Part of the Pleadings and Waiver of Answer Under Oath Does not Relieve from Answering Interrogatories. 943. General Prayer for Discovery in Bill not Sufficient Interrogatories Should be Filed. 944. Purpose of Rule 58 is to Obtain Discovery of Facts Material to Plain- tiff's Case or to Defendant's Defense, not Evidentiary Matters, nor a Bill of Particulars. 945. Matters Disclosed in the Answer Material to Plaintiff's Case are Subject to Interrogatories. 946. Interrogatories as to Writings as a Basis for Call for Productions. 947. Best Evidence Rule Applicable to Interrogatories. 948. Interrogatories may not be Used to Discover Evidence. 949. Interrogatories may not be Used to Require Opinion nor Expert Testi- mony. 950. Interrogatories may Test Contested Infringement. 951. A Witness is not Subject to Interrogatories. 952. As to Form of Objections to Interrogatories. CHAPTER 44. THE ANSWER AS A TRAVERSE. 960. General Statement. 961. Some Differences in Answers in Federal and State Courts. 962. Answer as Such is not Evidence. 963. Time for Answer. 964. Contents of Answer. 965. Rules as to Form of Answer. 966. Amendment's. 967. Attacks upon Answer. 968. Reply When Required When Cause at Issue. 969. Setting Down for Hearing on Bill and Answer. 970. Supplemental Answer. TABLE OP CONTENTS. XXII CHAPTER 45. COUNTERCLAIM AND SETOFF. an. 980. Counterclaim and Setoff Under Second Paragraph Equity Rule 30. 981. Illustration of Counterclaim Growing Out of Same Transaction Un- fair Competition. 982. Setoff or Counterclaim Subject of an Independent Equity Suit Against Plaintiff. 983. Cross-bill Abolished. 984. Counterclaim may not be Used to Bring in New Parties nor for Intervention. 985. Unliquidated Damages Unless Arising Out of the Transactions In- volved are not Matters of Counterclaim. 986. Effect of Failure to Plead Counterclaim or Setoff. CHAPTER 46. MOTION TO STRIKE OUT. 1000. Equity Rule 33 Motion to Strike Out Five Day Notice. 1001. Illustrative Case of Motion to Strike Out Defense as Insufficient. 1002. Form of Motion to Strike Out. CHAPTER 47. REPLY. 1010. Equity Rule 31 Reply to Setoff or Counterclaim Issue. 1011. The Scope of the Reply. CHAPTER 48. DEPOSITIONS. 1020. Depositions Rules 47, 54 and 55. 1021. Not "Good and Exceptional Cause" to Avoid Several Dnys in Trial. 1022. Time for Taking Depositions Rule 47 Governs Unless Conflicting With 863, Rev. State., et seq. 1023. Extending Time. XXX11 TABLE OF CONTENTS. CHAPTER 49. SETTING FOE TRIAL CALENDAR. SEO. 1030. Rule 56 as to Case Going on Trial Calendar and Restricting Taking Depositions Thereafter. 1031. Sufficiency of Showing of Compliance With the Rule Restricting Depositions After Case has Gone on Trial Calendar. 1032. Equity Rule 57 Restricting Allowance of Continuances After Case on Trial Calendar. 1033. Case is not Dropped from the Calendar After Hearing but Court may Render Decree After Term. CHAPTER 50. TRIAL EQUITY SUITS. 1040. In General. 1041. Depositions After Issue and Affidavits of Expert Witnesses in Patent and Trademark Cases. 1042. Mode of Proof Under 862, Rev. Stats. 1043. Rulings on Admissibility of Evidence Under Equity Rule 46. 1044. Appointment of a Stenographer Under Equity Rule 50. 1045. Affidavits of Expert Witnesses Patent and Trademark Cases Under Equity Rule 48. 1046. Pleading and Proof in Actions for Infringement Under 4920, Rev. State. CHAPTER 51. MASTERS IN CHANCERY. 1060. Appointment and Compensation Under Equity Rule 68. 1061. Reference of Exceptional Matters to, Under Equity Rule 59; 1062. Notice and Hearing of Reference Under Equity Rule 60. 1063. Regulation and Method of Proceedings Under Equity Rules 62, 63 and 64. 1064. Illustration of Exceptional Matters. 1065. Ruling as to Form of Accounts Before Master Under Equity Rule 68. TABLE OF CONTENTS. XXX1U CHAPTER 52. MASTER'S REPORT. SCO. 1070. Master's Report Exceptions Costs, Under Equity Rules 61, 86, 67. 1071. Exceptions to Draft Report, not Sufficient, but must be Filed After the Report Itself is Filed. 1072. Report Confirmed if No Objections Filed but Subject to be Set Aside on Questions of Law. 1073. Master's Conclusions on Matters of Fact Presumed Correct. 1074. Equity Rule 66 Applies to Bankruptcy Matters. 1075. Effect of Master's Report When Reference by Consent or on Stipulation. CHAPTER 53. RECEIVERS. 1080. Persons Ineligible to Act as Receivers. 1081. Receivers Manage Property According to State Laws. 1082. Rights of Employees on Properties in Hands of Receivers to be Heard on Terms of Employment. 1083. Receivers When Suable Without Leave of Court. CHAPTER 54. INJUNCTIONS. 1100. Power of Federal Courts to Issue Writs In General. 1101. Injunctions When may be Granted by Justice or Judge Instead of by Court. 1102. Injunctions Under the Clayton Act. 1103. Preliminary Injunctions and Temporary Restraining Orders Notice. 1104. Procedure Where Order Granted Without Notice. 1105. Dissolution and Modification of Temporary Restraining Orders. 1106. Order to be Filed Forthwith. 1107. Injunction Pending Appeal. 1108. When Proceedings in State Courts may be Stayed. 1109. Injunction to Restrain Enforcement of State Laws on Ground of Uncon stitutionality By Whom Granted. 1110. Hearing of Application in Such Cases Notice. 1111. Appeal from Order Granting or Denying Injunction in Such Cases. 1112. Enforcement of Injunction. 1113. Writs of Ne Exeat When and by Whom Granted. XXXIV TABLE OP CONTENTS. \ SEO. 1114. Writs of Scire Facias By What Courts Issuable. 1115. Power of Courts to Administer Oaths and Punish for Contempt. 1116. Injunction Restraining Receivership Proceedings Against Nationa! Banks. 1117. No Interlocutory Injunction Against National Banks in State Courts. 1118. Tax Assessment or Collection may not be Enjoined. 1119. Injunctions on Distress Warrant Against Officer for Failure to Account for Public Moneys Procedure. 1120. Procedure upon Refusal to Grant, or on Dissolution of Such Injunction. 1121. Injunction Against Violation of Prohibition Laws. 1122. Forma Interlocutory and Perpetual Injunctions. CHAPTER 55. DISMISSAL BY PLAINTIFF. 1130. Generally Plaintiff may Dismiss at any Time Before Decree on the Merits. 1131. After Master's Report Filed Voluntary Dismissal by Plaintiff not Allowed. CHAPTER 56. DECREE EQUITY SUITS. 1140. Rules as to Form of Decree. 1141. Findings. 1142. Drafting the Decree. 1143. Enforcement. 1144. Enforcement on Conditions. 1145. Decree Outside the Issues Invalid. 1146. Retaining Case to Afford Complete Relief. 1147. Lien of Decree not Divested by Creation of a New District or Division Nor hj the Division or Transfer of Territory. CHAPTER 57. REHEARING. 1160. Correction of Mistakes Rehearing Equity Rules 72 and 69. 1161- Allowance of Petition for Rehearing at Same Term at Which Decree Entered Suspends Decree Until Disposition of Petition. 1162. Petition for Rehearing on Newly Discovered Evidence. 1163. Rehearing not Granted Where New Evidence Known When Briefs were Filed. 1164. Granting a Rehearing a Matter of Discretion. TABLE OF CONTENTS. XXXV CHAPTER 58. BILL OF REVIEW. no. 1180. Function of Bill of Review. 1181. Time for Filing Leave of Court. 1182. Form of Bill of Review. CHAPTER 59. CRIMINAL JURISDICTION. 1200. Criminal Jurisdiction of the District Court. 1201. Places Within Which the Criminal Laws of the United States Apply. 1202. Penal Laws Enforced in, and Governing the Federal Courts. 1203. Adoption of State Penal Laws for Reserved Federal Territory Within State Boundaries. 1204. State and Federal Jurisdictions of Offenses. 1205. Jurisdiction of State Courts Under State Laws not Affected. 1206. Venue of Criminal and Penal Prosecutions. 1207. Statutes of Limitations Criminal Cases. CHAPTER 60. GRAND JURY. 1220. When Grand Jury Summoned. 1221. Grand Jury to have not Less Than Sixteen nor More Than Twenty-three Members Talesmen. 1222. Foreman of Grand Jury. 1223. Discharge of Grand Juries. 1224. Grand Jury Indictments by at Least Twelve Jurora. CHAPTER 61. INDICTMENTS. 1240. Form of Indictment for Perjury. 1241. Form of Indictment for Subornation of Perjury. 1242. Form of Indictment Before a Navy Court-martial. 124'3. Joining Charges Against a Person in One Indictment Consolidation of Indictments. 1244. Defects of Form in Indictment Immaterial Unless Prejudicial. 1245. Judgment Respondeat Ouster on Demurrer to an Indictment. XiXVl TABLE OF CONTENTS. CHAPTER 62. ARREST AND BAIL CIVIL AND CRIMINAL, SEO. 1260. Arrest Imprisonment Bail Removal for Trial Offenders Against the United States. 1261. Marshal Making Arrest to Take Prisoner to Nearest Judicial Officer and Return Before Such Officer the Warrant With Certified Copy of Complaint Attached. 1262. Officers Authorized to Hold to Security of the Peace and for Good Be- havior. 1263. Bail Admitted in Cases not Capital. 1264. Bail Admitted in Capital Cases Only by Court or Judge. 1265. Bail in Criminal Cases Removed by Writ of Error from State Court. 1266. Bail Surrender of. 1267. New Bail as Better Security. 1268. Recognizance Remittance of Forfeiture of. 1269. Copy of Writ Jailer's Authority and Original Returned With Of- ficer's Return. 1270. Writ for Removal of Prisoner from One District to Another. 1271. One Writ Sufficient Where Several Indictments Against Same Person. 1272. No Writ Necessary to Bring into Court Person in Custody. 1273. Special Bail in Suits for Duties or Penalties in States Where Imprison- ment for Debt not Abolished. 1274. Committing Defendant Who has Given Bail in Another District. 1275. Same Holding Defendant Until Final Judgment in First Suit. 1276. Calling Bail in Kentucky. 1277. Bail de Bene Esse by Clerks in Absence of Judges. CHAPTER 63. EXTRADITION. 1300. When and by Whom Warrant may Issue for Arrest of Fugitive from Justice from a Foreign Country. 1301. Person Held for Extradition Only on Evidence Establishing Probable Cause. 1302. No Extradition for Political Offense. 1303. Extradition to Foreign Country or Territory Occupied or Under Control of United States of Persons Committing Certain Offenses. 1304. Hearing Certification of Testimony t'o Secretary of State Warrant for Commitment Pending Surrender. 1305. Hearing to be Public on Land. 1306. Witnesses for Indigent Prisoners. TABLE OF CONTENTS. XXXV11 SIC. 1307. Evidence on the Hearing. 1308. Surrender' of Person by Secretary of State for a Fair and Impartial Trial. 1309. Betaking of Escaped Person Held for Extradition. 1310. Time Allowed for Extradition Two Months After Commitment. 1311. Extradition Provisions Continue During Existence of Treaty. 1312. Transportation and Protection of Person Extradited to the United States. 1313. Same Powers of Agent Receiving Such Persons Extradited from For- eign Country. 1314. Same Penalty for Opposing Agent or Attempting Rescue. 1315. Interstate Extradition. 1316. Penalty for Resisting Agent or Attempting Rescue, Interstate Extra- dition. CHAPTER 64. HABEAS CORPUS. 1330. Constitutional Provision. 1331. Courts Authorized to Issue Writ of Habeas Corpus. 1332. Power of Judges to Grant Writs of Habeas Corpus. 1333. Cases Where Federal Writ of Habeas Corpus will Issue. 1334. Application for Writ of Habeas Corpus How Made. 1335. Allowance and Direction of Writ of Habeas Corpus. 1336. Time of Return of Writ of Habeas Corpus. 1337. Form of Return of Writ of Habeas Corpus. 1338. Producing the Person. 1339. The Day for Hearing. 1340. Denial of Return Counter Allegations Amendments. 1341. Summary Hearing Disposition of Party. 1342. In Cases Involving the Law of Nations Notice to be Served on State Attorney General. CHAPTER 65. ARRAIGNMENT AND TRIAL. 1360. How Offenses are Prosecuted. 1361. Duty of District Attorney to Prosecute. 1362. Standing Mute Plea not Guilty. 1363. Persons Indicted of Treason or Capital Offense Entitled to Copy of Indictment and List of Jurors and Witnesses. 1364. Persons Indicted for Capital Crimes Entitled to Counsel and to Com- pel Witnesses. XXXViii TABLE OP CONTENTS. SEC. 1365. Accused lias Right to Trial by Jury. 1366. Peremptory Challenges Criminal Cases. 1367. Excessiye Peremptory Challenges in Capital Oases Disregarded. 1368. Challenges in Prosecutions for Bigamy or Polygamy. 1369. Trial of Criminal Cases. CHAPTER 66. VERDICT AND JUDGMENT IN CRIMINAL CASES. 1380. Verdict for Less Offense Than Charged. 1381. Verdict Against One or More Several Joint Defendants. 1382. Qualified Verdict in Cases of Murder in First Degree or Rape. 1383. Execution Postponed in Capital Case Carried to Appellate Court. 1384. Judgments for Fines How Collected. 1385. Discharge of Indigent Convicts Imprisoned for Fines. 1386. Confinement in State Jail or Penitentiary When Use of so Allowed by State Law. 1387. Where No Penitentiary or Jail Suitable or Available Attorney Gen- eral may Designate in a Convenient State or Territory Trans- portation of Prisoners Change of Place to Preserve Health or Custody of Prisoner or Because of His Improper or Cruel Treatment. 1388. Transportation of Criminals to Places of Imprisonment by Marshal. 1389. Confinement of Juvenile Offenders Under Sixteen in House of Refuge. 1390. Confinement of Juvenile Offenders Under Twenty Separate from Prisoners Over Twenty. CHAPTER 67. PARDON AND PAROLE. 1400. Mitigation or Remission of Fine, etc., by Secretary of Treasury upon Summary Investigation by District Judge. 1401. Same Rules and Mode of Proceeding may be Prescribed by Secre- tary of Treasury. 1402. Same Penalty of Imprisonment or Removal from Office Excepted Preservation of Informer's Right to Share of Fine, etc. 1403. Execution of Death Penalty. 1404. No Corruption of Blood or Forfeiture of Estate. 1405. Whipping and Pillory Abolished. 1406. Pardoning Power of the President. 1407. Parole of Prisoners. TABLE OP CONTENTS. CHAPTER 68. COURT OF CLAIMS. SEC. 1430. Organization. 1431. Sessions. 1432. Jurisdiction. 1433. Statute of Limitations. 1434. Rules of Practice. 1435. Witnesses. 1436. New Trials. 1437. Settling of Accounts Interest. 1438. Costs. 1439. Judgments and Their Effects. 1440. Appeals. CHAPTER 69. COURT OF CUSTOMS APPEALS. 1450. In General. 1451. General Appraisers Board of. 1452. Court of Customs Appeals Organization. 1453. Sessions. 1454. Jurisdiction. 1455. Time for Appeal from Board of General Appraisers. 1456. Calendar. CHAPTER 70. CIRCUIT COURT OF APPEALS. 1470. Judicial Circuits. 1471. Organization, Judges, Marshals, Clerks and Deputies. 1472. Terms. 1473. Rules of Procedure. 1474. Admission to Practice. 1475. Reports of Decisions. XI TABLE OF CONTENTS. CHAPTER 71. APPELLATE JUEISDICTION OF CIRCUIT COURT OF APPEALS. SEC. 1500. Appellate Jurisdiction. 1501. Appeal and Error from District Courts to Circuit Court of Appeals. 1502. Appeals from Interlocutory Orders in Injunction and Receivership Proceedings in District Courts. 1503. Appellate and Supervisory Jurisdiction in Bankruptcy Cases. 1504. Appeal and Error from the United States Court for China. 1505. Appeals and Writs of Error from District Court for Alaska. 1506. Place of Hearing of Appeals and Writs of Error from Alaska. 1507. Appellate Jurisdiction from District Court Canal Zone. 1508. Appellate Jurisdiction The Danish West Indian Islands. 1509. Appellate Jurisdiction Porto Rico. 1510. Powers and Duties of Judges upon AppeaJ. CHAPTER 72. THE SUPREME COURT. 1530. Judges, Clerks, Deputies and Marshal. 1531. Supreme Court Reporter. 1532. Admission to Practice. 1533. Terms and Adjournments. 1534. Powers and Jurisdiction. CHAPTER 73. APPELLATE JURISDICTION OF SUPREME COURT. 1550. In General. 1551. Appeals from District Courts Direct to the Supreme Court. 1552. What Constitutes a Question of Jurisdiction. 1553. Rules for Determining the Respective Jurisdiction of the Circuit Courts of Appeal, and the Supreme Court W'here the Jurisdiction of the Court is in Issue. 1554. Appeals from Final Sentences and Decrees in Prize Causes. 1555. Cases Involving the Construction or Application of the United States Constitution. 1556. Constitutionality of United States Law, or Validity or Construction of Treaty Drawn in Question. TABLE OF CONTENTS. xli SEC. 1557. State Law or Constitution Claimed to Contravene the Constitution of the United States. 1558. Clauses 3, 4, and 5 of 238, Judicial Code. 1559. Appeal and Error Circuit Court of Appeals to Supreme Court. 1560. Appellate Jurisdiction of the Supreme Court in Cases from Court of Claims. 1561. Appeal and Error to Supreme Court from Hawaii, Porto Rico, Alaska, Philippine Islands, District of Columbia and Bankruptcy Courts. 1562. Prohibition, Mandamus and Other Writs to Revise and Correct Pro- ceedings in Lower Court, and Preserve Jurisdiction. CHAPTER 74. REMOVAL FROM STATE COURT OF LAST RESORT TO UNITED STATES SUPREME COURT BY WRIT OF ERROR JURISDICTION. 1600. In General. 1601. Statute Regulating Removal by Writ of Error. 1602. Writ of Error or Certiorari to Review State Court Decisions Time for Taking. 1603. What Judgment and Decrees Reviewable. 1604. Classification of Cases Reviewable. 1605. Decision of State Court Involving the Validity of a Federal Treaty, Statute, or Authority, Their Validity Having Been Drawn in Question. 1608. Decisions Involving the Validity of State Statutes Whose Authority Drawn in Question as Repugnant to the Federal Constitution, Laws, or Treaties. 1607. Decisions for or Against Right, Title, Privilege, or Immunity Claimed Under United States Constitution, Treaty, Statute, Authority, or Com- mission. 1608. General Propositions Flowing from 237, Judicial Code. 1609. Procedure on Removal from State Courts of Last Resort. CHAPTER 75. APPEAL AND ERROR. 1650. In General. 1651. Parties. 1652. Time for Writs of Error or Appeals from District Courts to the Su- preme Court of the United States. 1653. Time for Writs of Error or Appeals to Circuit Courts of Appeals. 1654. Time for Appeals to Circuit Courts of Appeals from Interlocutory Orders. xlii TABLE OP CONTENTS. SEC. 1655. Time for Writs of Error or Appeals from Circuit Courts of Appeals to Supreme Court. 3656. Time to Secure Review of State Court Decisions. 1657. Procedure on Writs of Error and Appeals to Circuit Courts of Appeals the Same as to Supreme Court. 1658. Allowance of Writs of Error or Appeals. 1659. Amendment of Writ of Error. 1660. Writ of Error By Whom Issued. 1661. Assignment of Errors on Writ of Error. 1662. Form of Assignment of Errors. 1663. Citation. 1664. Bond. 1665. No Bond Required of United States. 1666. Supersedeas. 1667. Injunction Pending Appeal. 1668. Proceedings in Forma Pauperis. 1669. Record on Error. 1669a. Transcript on Appeal and Error. 1670. Reduction and Preparation of Record on Appeal and Error to Su- preme Court. 1671. Reduction and Preparation of Record Under New Equity Rules. 1672. Printing and Filing of Record on Appeal and Error to Circuit Courts of Appeals. 1673. Printing and Filing of Record on Appeal and Error to Supreme Court Use of Record in Circuit Court of Appeals as Part of Transcript. 1674. One Record Sufficient When Both Parties Appeal to Supreme Court Direct. 1675. Time for Return of Appeals and Writs of Error. 1676. Summary of Procedure on Appeal and Error. 1677. Review of Final Decisions of Circuit Courts of Appeals upon Certiorari. 1678. Certification by Circuit Courts of Appeals to Supreme Court. 1679. Appellate Procedure District Courts of Alaska t9 the Supreme Court. 1680. Appellate Procedure Hawaii and Porto Rico. 1681. Appellate Procedure From Supreme Court of Philippines. 1682. Appellate Procedure From District of Columbia. 1683. Appellate Procedure From District of Columbia Where Decision of Circuit Court of Appeals is Otherwise Final. 1684. Certiorwri Ninth Circuit to Supreme Court in Alaska Cases. 1685. Procedure After Transcript Reaches Appellate Court. 1686. No Reversal for Error in Fact. 1687. Damages and Costs on Error. 1688. Dismissal of Appeal. 1689. Diminution of Record. TABLE OF CONTENTS. SEO. 1690. Mandate. 1691. Death of Party After Judgment, but Before Appeal. 1692. Death of Party During Appellate Proceedings. 1693. Mistake as to Proper Method of Review not Ground for Dismissal. CHAPTER 76. MISCELLANEOUS PROVISIONS. 1700. Construction of Code. 1701. Definitions. 1702. Priority of Revenue Cases or "Where State a Party. 1703. Suits Under Revenue and Postal Laws, etc., Brought in Name of United States. 1704. District Attorney's Prosecution of Fraud on the Revenue. 1705. Warrants for Searches and Seizures Under Customs Laws. 1706. Procedure in Seizure Cases Under Customs Laws. 1707. Bailing Property Seized Under Customs Laws. 1708. Property Taken Under Revenue Laws Irrepleviable. 1709. Credits Allowed in Government Suits Against Individuals. 1710. Credits Allowed in Government Suits Under Postal Laws. 1711. Interest in Postal Suits OB Balances Due. 1712. Sale after Condemnation Under Revenue Laws. 1713. Paying Money into Court. 1714. Withdrawal of Money Paid into Court. 1715. Liens on Vessels for Repairs, Supplies or Other Necessaries Procedure in Bern. 1716. Seizing and Detaining Letters, etc., Carried Contrary to Law. 1717. Same Disposition of Seizures. 1718. Mandamus to Compel Obedience to Provisions of Interstate Commerce Act Respecting Securing Information Concerning Stocks, Bonds and Other Securities. 1719. Trading With the Enemy Act Jurisdiction of District Court 170. Same Courts Philippine Islands and Canal Zone. 1721. Limitation on Suits by Alien Enemy. 1722. Suits by Enemy Against Licensee Relative to Patents, Trademarks, Prints, Labels and Copyrights Under Trading With the Enemy Act. 1723. Same Against Others Than Licensee. 17^4. Action on Claim Against Bureau War Risk Insurance. 1725. Jurisdiction of Prosecutions Under Act for National Security and De- fense Production, Conservation and Distribution of Food Products and Fuel. 1726. Civil Action Under Liquor Laws of District of Columbia for Injuries by Intoxicated Person or in Consequence of Intoxication. 1727. Condemnation Proceedings Land for Military Purposes. 1728. Condemnation Proceedings for Harbor Improvements. TABLE OF CONTENTS. APPENDIX. PAGE The Judicial Code as Amended to Oct. 6, 1917 ...................... 661 Rules of the United States Supreme Court ........................... 817 Rules of the United States Circuit Court of Appeals ................. 845 Rules in Admiralty United States Circuit Court of Appeals ........... 961 Equity Rules in Force February lat, 1913, Compared With Old Equity Rules ... ...................................................... &71 Tables of Statutes, Code Sections, Rules and Constitutional Provisions Quoted or Cited Herein ......................................... 1023 a. Revised Statutes of the United States ........... . ............ 1025 b. Judicial Code Sections ....................................... 1029 c. Criminal Code Sections ........................................ 1031 d. Chronological Table of Acts of Congress Other Than Revised Statutes and Code Sections ................................ 1032 e. Supreme Court Rules ......................................... 1034 f . Circuit Courts of Appeals Rules ............. . ................ 1034 g. Equity Rules ............................ . ................... 1035 h. Constitutional Provisions ..................................... 1036 i. Amendments to the United States Constitution ................. 1036 INDEX. (Pages 1039 to 1222) MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE. CHAPTER 1. THE FEDERAL JUDICIAL SYSTEM. 8EC. 1. Functions of the Federal Courts. 2. Federal Jurisdiction Limited. 3. Judicial Power Under the United States Constitution. 4. Federal Courts Enumerated. 5. Federal Procedure at Law and in Equity. 6. Differences in Procedure at Law and in Equity in the Federal Courts. 7. Actions at Law Wherein Conform to State Practice. 8. Suits in Equity Rules of Procedure. 9. Possibility of a Federal Blended Procedure. 10. Differences Between Federal and State Court Procedure. 11. Why a Special Study of Federal Procedure Required. 12. Desirability of Special Study of Federal Procedure. 1. Functions of the Federal Courts. Cases arising under the constitution or laws of the United States, or in which the United States or some state might be a party, ought to be insured a uniformity of decision impossible to obtain with a number of in- dependent state judicial systems such as exist in the United States. Likewise for the sake of uniformity and also to insure national dig- nity and sanction, cases arising under treaties, affecting ambassa- dors and other public ministers and consuls, and cases of admiralty and maritime jurisdiction, should be determinable in national or federal courts. These cases are said to involve federal questions (chapter 6, post), and belong to one of the two classes of cases ex- pressed by^the federal constitution as included in the judicial power of the United States. (Art. 3, 2, cl. 1, U. S. Const., quoted Pst, 3.) Manual 1 (1) 2-3, Ch. 1 MANUAL OF FEDERAL PROCEDURE. 2 There also exists, where there are state sovereignties with courts more or less subject to local prejudice or political control, the necessity of impartial tribunals independent of local influence to determine controversies between citizens of different states or be- tween the citizens of a state and aliens. Therefore, the federal courts are vested with a certain jurisdiction in cases of diverse citizenship. (Chapter 7, post.} The judicial power of the United States extends to cases involv- ing (1) federal questions, (2) diverse citizenship. 2. Federal Jurisdiction Limited. The theory that the United States government created by the constitution is one of limited and enumerated powers, and that the constitution is the measure and test of the powers conferred, 1 applies with as much force to its judicial as to its executive and legislative powers. At the time of the adoption of the constitution the several states had their own systems of courts, which had general jurisdiction over persons and things within their territorial limits. Whatever judicial powers were not conferred on the federal judiciary were withheld, and belonged to the several states or the people thereof. Therefore, in prosecuting or defending any litigation in the fed- eral court it must always be remembered that "the jurisdiction of the federal court is a limited one, depending either upon the exist- ence of a federal question or diverse citizenship of the parties. Where these elements of jurisdiction are wanting, it cannot proceed, even with the consent of the parties." 2 3. Judicial Power Under the United States Constitution. The constitution, in defining the judicial power of the federal courts, recognized both classes of cases mentioned in the preceding section, (1) those involving federal questions, and (2) 'those where there might be a diversity of citizenship. 1 Calder v. Bull, 3 Dall. (U. S.) 386, 1 L. Ed. 648; Gibbons v. Ogden, 9 Wheat. (U. S.) 187, 6 L. Ed. 68; United States v. Cruikshank, 92 U. S. 542, 550, 23 L. Ed. 588. 2 Kardo Co. v. Adams, 231 Fed. 950, 956, 146 C. C. A. 146, quoting Byers v. McAuley, 149 U. S. 608, 37 L. Ed. 867, 13 Sup. Ct. 906, 910. 3 THE FEDERAL JUDICIAL SYSTEM. Ch. 1, 4 Art. 3, 2, cl. 1, U. 8. Const. "The judicial Power shall extend to all Cases, in Law and Equity, arising under this Con- stitution, 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 claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects." (11 U. S. Comp. Stats. 1916, p. 14,015 et seq.) On account of the tender consideration of states' rights, the above provision was modified as follows : lltJi Amendment, U. 8. Const. "The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." (11 U. S. Comp. Stats. 1916, p. 14,422 et seq.) 4. Federal Courts Enumerated. Art. 3, Part 1, U. 8. Const. "The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." (11 U. S. Comp. Stats. 1916, p. 13,906 et seq.) District courts. Each state in the United States constitutes one or more federal judicial districts in each of which is located a fed- eral district court. These courts are the federal courts of general, original jurisdiction. The consideration of their jurisdiction, prac- tice and procedure occupies the first and larger part of this book. The other inferior and appellate courts, are treated respectively in separate chapters devoted to each. Court of Claims (chapter 68, post), with five judges, sits at Washington to take jurisdiction of claims against the United State? other than pensions and sounding in tort. 5, Ch. 1 MANUAL OF FEDERAL PROCEDURE. 4 Court of Customs Appeals (chapter 69, post), with five judges, sits at Washington and may also sit in the several circuits. It re- views decisions of the board of general appraisers under the cus- toms and duties or tariff laws. Circuit Court of Appeals (chapters 70 and 71, post) consist of three or -more judges for each circuit. A justice of the supreme court is also assigned to each circuit, and district judges may be assigned to sit. These courts have final appellate jurisdiction over the district courts within their respective circuits, except where a direct appeal is allowed exclusively to the supreme court or on certification of a question from the circuit court of appeals to the supreme court. Supreme court (chapters 72 and 73, post), with nine judges, sits at Washington. -It has original jurisdiction of matters in which a state is a party, and of cases brought by ambassadors or other public ministers or in which a consul or vice-consul is a party. It has original and exclusive jurisdiction of cases between states and be.- tween a state and the United States, and of cases against ambassa- dors, other public ministers and their domestics. It has appellate jurisdiction on writ of error or appeal from the district courts in certain cases, and on writ of error from the courts of last resort of the several states in certain cases. It has appellate jurisdiction of certain cases from the circuit court of appeals, court of claims, from United States district court and supreme court of Porto Rico, the supreme court of Hawaii, district court of Alaska, the supreme court of the Philippine Islands, the court of appeals of the District of Columbia, and certain cases where a territory has become a state. 5. Federal Procedure at Law and in Equity. In the Federal courts there are two systems of pleadings and practice, viz., law and equity. The same judge may sit at one time as a law judge and try a case, with a jury to determine questions of fact, and at another time he may sit as a chancellor or equity judge determiri- 5 THE FEDERAL JUDICIAL SYSTEM. Ch. 1, 6 iiiLT the questions of law and fact without a jury, unless he calls one in an advisory capacity. As an equity judge he will not give an equitable remedy if the remedy at law is adequate, but under new Equity Rule 22, he may transfer the case to the law side, if improperly brought on the equity side, instead of dismissing as formerly. (See chapter 37, post.) The federal constitution, in various provisions, recognizes arid fixes the distinction between common law and equity, especially in the seventh amendment preserving the right of trial by jury in suits at common law where the value in controversy shall exceed twenty dollars. This double system was inherited from England, where formerly there were separate courts of law and equity, with a chancellor or equity judge sitting on the equity bench and a common-law judge on the common-law bench. In most of the states to-day the same form of action is used in an equity case as in a law case and the system is a blending of law and equity. But the main distinctions between law and equity are nevertheless maintained: (1) Preserving the right to trial by jury in law cases; (2) refusing to give equitable remedies where the legal remedies of possession or compensation are adequate ; and (3) enforcing equitable decrees in certain cases by process for contempt for neglect or refusal to obey. The reason for the original separation of the two systems is historical and not in the inherent nature of these branches of the law, but it seems that the distinction will remain an essential ele- ment of our system, even in the blended or reform procedure, so long as the right to trial by jury is preserved for common-law cases. Congress by the adoption of the act of March 3, 1915, c. 90, adding 274b to the Jud. Code, has already taken a long step forward in progress toward the reform system of pleading, open- ing a way for further legislation after the act has been more fully subjected to the tests of practice. (See 545, post.) 7, Ch. 1 MANUAL OP FEDERAL PROCEDURE. 6 6. Differences in Procedure at Law and in Equity in the Federal Courts. In the Federal courts an action at law differs from a suit in equity in a number of particulars, in the main as follows : (1) Pleading: At law, conforms "as near as may be" to state practice; in equity is governed by equity rules. (2) Trial: At law, defendant entitled to a jury to determine issues of fact ; in equity, issues both at law and fact are determined by the judge. (3) Re- lief granted: At law, compensation or possession; in equity, pre- ventive, specific, foreclosure, receiverships and all other remedies except legal, but including compensation and possession as inci- dental to the equitable relief sought. Equitable remedies are not given where legal remedies are adequate and complete. (4) En- forcing final orders: A judgment at law is enforceable by execution and writ of assistance; equitable decree by execution for money judgments, by contempt proceedings for specific or preventive relief when necessary under Equity Rule 8, and writ of assistance for possession under Equity Rule 9. (Chapter 56, post.) (5) Review in appellate court : At law, by writ of error ; in equity, by appeal. (Chapter 75, post.) 7. Actions at Law Wherein Conform to State Practice. Generally speaking, an action at law is an action wherein is sought the remedy of possession or compensation without any equitable incidents requiring the aid of equity. Among the equitable incidents requiring the aid of equity are fraud, accident, mistake, trusts, the necessity of avoiding a multi- plicity of suits, and the inadequacy of the legal remedies. Under 914 et seq. of the Revised Statutes, the conduct of an action at law conforms "as near as may be" to that existing at the time in like causes in the courts of record of the state within which such district court is held. Chapter 15, post, summarizes the proceedings in a law action with reference to conformity to state practice. Pleading and practice in a law case in the federal courts are governed by the state statutes and state court rules, except in those 7 THE FEDERAL JUDICIAL SYSTEM. Ch. 1, 8-9 matters (1) where there has been congressional action by statutory enactments, or (2) which involve the judge's personal administra- tive powers, or (3) wheTe the federal district court rules have established such minor changes as the difference in jurisdiction and organization of the state and federal courts may require. In addition to a good cause of action there must always be an affirmative showing (1) of ground of federal jurisdiction; (2) that the requisite amount in controversy is involved, which in cases of concurrent jurisdiction with the state courts must exceed, exclusive of interest and costs, the sum or value of three thousand dollars, except in certain cases set out in 24 of the Judicial Code ; (3) that the action is one at law as distinguished from equity; and it should also appear (4) that the venue of the action is prop- erly laid under the federal statutes. 8. Suits in Equity Rules of Procedure. Suits in equity are governed by the equity rules promulgated by the United States supreme court, under 917, Revised Statutes, with such minor variations not inconsistent with those rules as the district judges, with the concurrence of a majority of the circuit judges for the circuit, may from time to time establish under Equity Rule 79 and under 913 and 918, Revised Statutes. Chapter 25, post, gives the main steps in an equity suit under these rules. In a suit in equity, as in an action at law, regard must be paid to (1) the ground of federal jurisdiction, (2) that there is the requisite amount in controversy. (3) that the cause is equitable as distinguished from legal, (4) and the proper venue. 9. Possibility of a Federal Blended Procedure. To estab- lish ar federal blended procedure it would seem that very few rules would be required for a law action additional to those now existing for the conduct of a suit in equity. It would be necessary to make provision (1) to preserve the right of a jury trial for questions of fact in law actions; (2) to adjust the giving of equitable remedies and legal remedies in the same suit or sepa- rate suits determinable at the same time; and (3) to provide for 10, Ch. 1 MANUAL OF FEDERAL PROCEDURE. 8 the enforcement of state statutory remedies wherein same may not be conformable to the federal practice. The adoption of such a system would be a strong influence "toward uniformity and simplicity in state systems. A remarkable innovation in federal procedure has been created by the act of March 3, 1915, chapter 90, adding 274b to the Jud. Code, permitting equitable defenses to an action at law (quoted and annotated 545, post). This is a great step toward the aboli- tion of the distinction between the two systems of pleading and practice, and establishing in the federal courts the reform mode of procedure. 10. Differences Between Federal and State Court Procedure. The differences between federal and state practice and procedure are due (1) to the limited nature of federal jurisdiction requiring (a) some"" ground of federal jurisdiction to be involved in all ac- tions in the federal court, and (b) that in certain cases the amount in controversy must exceed three thousand dollars exclusive of interest and costs; (2) to the distinctions maintained in federal courts between actions at law and suits in equity; (3) to the fed- eral statutes relating to venue. It will be seen from the above that there are four points for consideration in determining the jurisdiction and consequent procedure in actions brought in federal courts. First, whether or not a federal ground of jurisdiction is in- volved, because some such ground must appear in addition to the facts necessary generally to constitute a cause of action. These grounds of federal jurisdiction are treated in chapters 6 and 7, respectively, entitled "Federal Questions," "Diverse Citizenship." Second, whether or not there is the requisite amount in con- troversy. Congress, having power in its discretion to establish inferior courts, necessarily has power to define their jurisdiction. In defining the jurisdiction of the district court, the federal stat- utes have fixed a limitation based on the amount in controversy. This subject is treated in chapter 8, entitled "Amount in Con troversy." 9 THE FEDERAL JUDICIAL SYSTEM. Ch. 1, 11 Third, whether or not the suit is at law or in equity. A sepa- rate system of procedure has been rendered necessary in federal equity suits, because a number of states have adopted a blended form of procedure, combining legal and equitable causes of action and defenses, while the federal system has maintained the distinc- tions between law and equity. Chapters 15 to 24, inclusive, give the main proceedings for an action at law in the federal court indicating in what respects the state courts' procedure is followed and in what particulars the practice is not in conformity with that of the state courts; and chapters 25 to 58, inclusive, give the procedure for a suit in equity in the federal court. Fourth, certain restrictions have been adopted in the federal courts respecting the place of trial of actions, or venue. These restrictions are not jurisdictional if waived by the parties, but may defeat the action if timely objection be made. On removal, timely objection on this ground may cause the case to be remanded This subject of venue is treated in chapter 4, entitled "Territorial Jurisdiction Venue. ' ' 11. Why a Special Study of Federal Procedure Required. Federal equity procedure is now wonderfully simplified under the equity rules which took effect February 1, 1913 (Appendix), and the Judicial Code which took effect January 1, 1912 (Ap- pendix). There will be but little difficulty in mastering the present equity procedure if the practitioner will bear in mind the points men- tioned in the preceding section respecting jurisdiction, federal and equitable, amount in controversy and venue. But special study of the subject is required because the federal equity procedure is a complete, separate system differing in many vital particulars from state systems. In chapter 25, entitled "A Suit in Equity Summary," are set out the main points in the conduct of a suit in equity and the time within which each step must be taken. 12., Ch. 1 MANUAL OF FEDERAL PROCEDURE. 10 For an action at law in the federal court, the practitioner must search out those matters wherein the federal statutes, federal court rules and decisions have changed the mode of procedure from that in the state court. In chapter 15 post, "An Action at Law Summary," it is endeavored to indicate the main points in conformity and those not in conformity with state practice. In chapters 59 to 67 are set out statutes relating to criminal procedure. Appellate procedure is dealt with in chapters 74 and 75. Procedure in removal of cases from a state to the federal district court is treated in chapter 9. 12. Desirability of Special Study of Federal Procedure. The number of cases coming under federal jurisdiction, particu- larly the concurrent jurisdiction of the federal district court, is greatly increasing with the consolidation and combination of busi- nesses and with the growth of national control of matters formerly left to state legislation. Time devoted to the study of federal jurisdiction and procedure will be well spent in view of the strong tendency toward national control of numerous matters affecting the different business inter- ests in every community. A special study of federal procedure is required if the lawyer desires to be equipped to handle business of importance. The larger the interests involved, the greater liability there is of such matters being in litigation in the federal rather than the state court, either by being brought there originally or on removal. The necessity is undoubtedly increasing for the state practitioner to become conversant Vith the judicial system, jurisdiction and procedure not only of his own state (and to some extent of other states), but also of the nation. 11 JUDICIAL OFFICERS DISTRICT COURT. Cll. 2, 20 CHAPTER 2. JUDICIAL OFFICERS DISTRICT COURT. SKO. 20. Judicial Officers Enumerated. 21. Judges Division of Business and Assignment of Cases for Trial. 22. Designation of District Judges to Hold Court in Place or Aid of Another District Judge. 23. Circuit Judge, When to Act as District Judge. 24. Outside District Judges for Districts in the Second Circuit. 25. Substitutes .in Cases of Interest, Relationship, Bias or Prejudice. 26. Duties and Powers of Judges Designated in Place or Aid of District Judges. 27. Other Judicial Officers Disqualification for Appointment. 28. Clerks and Deputy Clerks. 29. Marshals. 30. Deputy Marshals. 31. Marshal's Field Deputies. 32. Criers and Bailiffs. 33. United States District Attorneys. 34. Assistant District Attorneys. 35. Court Commissioners. 20. Judicial Officers Enumerated. In every state in the United States there is at least one federal judicial district. These districts are described with their terms and places of holding court in chapter 5, Jud. Code (Appendix, post}. 1, Jud. Code (Appendix, post), provides for at least one judge in every district except certain districts in Alabama, Mississippi, and Tennessee. Since the adoption of the Judicial Code there have been passed various acts for additional judges for several districts. These acts will appear in an appendix under those sections of chapter 5 of the Judicial Code setting out the districts in the several states. The states are arranged in alphabetical order. Other judicial district officers are: a clerk, deputy clerks, a marshal, deputy marshals, field deputy marshals, bailiffs, court 21-22, Ch. 2 MANUAL OP FEDERAL, PROCEDURE. 12 crier, district attorney, assistant district attorneys, and sometimes counsel to aid the district attorney. There are also court commissioners ( 35, post), receivers (chap- ter 53, post), examiners, masters in chancery under Equity Rule 68 (chapter 51, post), and officers appointed under the bank- ruptcy laws not covered by this work. 21. Judges Division of Business and Assignment of Cases for Trial. Where there is more than one judge in a district they have authority, under 23, Jud. Code (Appendix, post), to agree upon a division of business and assignment of cases for trial, but in case they do not so agree, the senior circuit judge shall make the necessary orders. 22. Designation of District Judges to Hold Court in Place or in Aid of Another District Judge. When any district judge is prevented by any disability from holding court, 13, Jud. Code (Appendix, post), provides for the appointment of another district judge from the same circuit, or if public interest so requires, a judge from any district in another circuit. So likewise, when from the accumulation or urgency of business in any district court the public interests require the aid of another judge, 14, Jud. Code (Appendix, post), authorizes the appoint- ment of one from another district in the same circuit, who may hold court separately at the same time as the other judges. Ordinarily the appointment is made by any circuit judge of the circuit in which the district lies, and in their absence by the cir- cuit justice of the circuit in which the district lies. But in case of absence or inability of such circuit judge and circuit justice, 15, Jud. Code (Appendix, post), designates the chief justice of the United States to make the appointment. Likewise under 16, Jud, Code (Appendix, post), a new designa- tion and appointment of any other district judge is authorized. When the senior circuit judge is present in the circuit, it is his duty, under 17, Jud. Code (Appendix, post), to appoint the dis- 13 JUDICIAL OFFICERS DISTRICT COURT. Ch. 2, 23-27 trict judge of any judicial district within his circuit to hold court in the place or in aid of any other district judge within the same circuit. 23. Circuit Judge, When to Act as District Judge. Under 18, Jud. Code (Appendix, post), a circuit judge may sometimes be assigned to hold district court. 24. Outside District Judges for Districts in the Second Cir- cuit. By the amendment of October 3, 1913, c. 18, to 18, Jud. Code (Appendix, post), district judges from other circuits for the second circuit may be appointed if they consent in writing and the senior circuit judge of the circuit within which the desig- nated judge resides certifies in writing that the business of the district of such judge shall not suffer thereby. 25. Substitutes in Cases of Interest, Relationship, Bias or Prejudice. Provisions are made for an outside judge in case of interest or relationship of the incumbent by 20, Jud. Code (Ap- pendix, post), and for the designation of another judge on affidavit of personal bias or prejudice of the trial judge by 21, Jud. Code (Appendix, post). 26. Duties and Powers of Judges Designated in Place or Aid of District Judges. By 19, Jud. Code (Appendix, post), the out- side judge is given all the duties and powers of a district judge of the district for which he is appointed. 27. Other Judicial Officers Disqualification for Appoint- ment. Under 67, Jud. Code (Appendix, post), no person shall be appointed to or employed in any office or duty in any court who is related by affinity or consanguinity within the degree of first cousin to the judge of such court. An exception is made in the amendment of December 21, 1911, c. 4, allowing persons employed 28, Ch. 2 MANUAL OF FEDERAL PROCEDURE. 14 in the circuit courts, which were abolished, to be employed in the district court succeeding to such circuit court's jurisdiction. By 68, Jud. Code (Appendix, post), no clerk or his deputy may be appointed master or receiver in any case, except for special reasons assigned in the order of appointment. 28. Clerks and Deputy Clerks. A clerk of the district court is appointed by the judge thereof under 3, Jud. Code (Appendix, post), except as otherwise provided by law. The deputy clerks, under 4, Jud. Code (Appendix, post), are appointed by the clerks with the approval of the district judge. The term of the district clerk is at the will of the district judge (Ex parte Herman, 13 Pet. (U. S.) 230, 10 L. Ed. 138), and of the deputy clerks, at the pleasure of the clerk appointing them, with the concurrence of the district judge, under 4, Jud. Code (Appendix, post). The oath of the clerk is set out in 794, Rev. Stats. (4 Fed. Stats. Ann., 2d ed., p. 637 ; 2 U. S. Comp. Stats. 1916, 1321, p. 2182). A bond is required under 795, Eev. Stats. (4 Fed. Stats. Ann., 2d ed., p. 637; 2 U. S. Comp. Stats. 1916, 1322, p. 2183), and see 220, Jud. Code (Appendix, post), and 3, Act Feb. 22, 1875, c. 95, 18 Stats. 333 (4 Fed. Stats. Ann., 2d ed., p. 640; 2 U. S. Comp. Stats. 1916, 1196, p. 1557) Additional bonds may be required, when the business of the court makes necessary, under the provisions of 2, Act Feb. 22, 1875, c. 95, 18 Stats. 333 (4 Fed. Stats. Ann., 2 ed., p. 639 ; 2 U. S. Comp. Stats. 1916, 1331, p. 2188). If any clerk shall willfully refuse or neglect to make any report, certificate, statement or other document required by law to be by him made, he may be removed by the President ( 5, Act Feb. 22, 1875, c. 95, 18 Stats. 333 (4 Fed. Stats. Ann., 2d ed., p. 773; 2 U. S. Comp. Stats. 1916, 1328, p. 2187). 15 JUDICIAL OFFICERS DISTRICT COURT. Ch. 2, 29 For failure to do as set out in 5, same act, there is an addi- tional punishment provided, 6, said act, making the neglect or refusal a misdemeanor. The bond of deputy clerks is required under 796, Rev. Stats. (4 Fed. Stats. Ann., 2d ed., p. 640; 2 U. S. Comp. Stats. 1916, 1324, p. 2185). The oath of the deputy clerk is the same as that of the clerk 29. Marshals. 776, Rev. Stats. "A marshal shall be appointed in each dis- trict, except in the middle district of Alabama, and the north- ern district of Georgia, and the western district of South Carolina. The marshal of the southern district of Alabama shall perform the duties of marshal of the middle district of said state, and shall keep an office at Montgomery in said middle district. The marshal of the southern district of Georgia shall perform the duties of marshal of the northern district of said state. The marshal of the eastern district of South Carolina shall perform the duties of marshal of the western district of said state." (4 Fed. Stats. Ann., 2d ed., p. 626; 2 U. S. Comp. Stats. 1916, 1302, p. 2162.) That portion of the above-quoted section, relating to certain dis- tricts of Alabama and Georgia, has been superseded by special provisions for those states. These provisions with a number of others relating to officers in particular districts may be found in 4 Fed. Stats. Ann., 2d ed., pp. 777-799 ; 2 U. S. Comp. Stats. 1916, 1341-1374, p. 2196 et seq. The term of the marshal is four years, under 779, Rev. Stats. (4 Fed. Stats. Ann., 2d ed., p. 627; 2 U. S. Comp. Stats. 1916, 1303, p. 2163). Vacancies in marshal's office may be filled under 793, Rev. Stats. (4 Fed. Stats. Ann., 2d ed., p. 621 ; 2 U. S. Comp. Stats. 1916, 1318, p. 2181), and 2, Act June 24, 1898, c. 495 (4 Fed. Stats. Ann., 2d ed., p. 625; 2 U. S. Comp. Stats. 1916, 1320, p. 2182). The oath of the marshal is defined by 782, Rev. Stats. (4 Fed. Stats. Ann., 2d ed., p. 629; 2 U. S. Comp. Stats. 1916, J305, p. 2165). 30, Ch. 2 MANUAL OP FEDERAL PROCEDURE. 16 The bond of the marshal is required by 783, Rev. Stats. (4 Fed. Stats. Ann., 2d ed., p. 640; 2 U. S. Comp. Stats, 1916, 1307, p. 2166). Suit on marshal's bond is authorized under 784, Rev. Stats. (4 Fed. Stats. Ann., 2d ed., p. 642; 2 U. S. Comp. Stats. 1916, 1308, p. 2167). Bond to be further security after judgment is provided in 785, Rev. Stats. (4 Fed. Stats. Ann., 2d ed., p. 645 ; 2 U. S. Comp. Stats. 1916, 1309, p. 2171). Limitation of suit on bond is defined in 786, Rev Stats. (4 Fed. Stats. Ann., 2d ed., p. 646; 2 U. S. Comp. Stats. 1916, 1310, p. 2171). 30. Deputy Marshals. 780, Rev. Stats. ' ' ( Deputy marshals. ) Every marshal may appoint one or more deputies, who shall be removable from office by the judge of the district court, or by the circuit court for the district, at the pleasure of either." (4 Fed. Stats. Ann., 2d ed., p. 627; 2 U. S. Comp. Stats. 1916, 1304, p. 2164). Oath of deputy marshal set out in 782, Rev. Stats. (4 Fed. Stats. Ann., 2d ed., p. 629; 2 U. S. Comp. Stats. 1916, 1305, p. 2165). 10, Act May 28, 1896, c. 252. (Marshal's office deputies and clerks.) "That when in the opinion of the Attorney General the public interest requires it, he may, on the recommendation of the marshal, which recommendation shall state the facts as distinguished from conclusions, showing necessity for the same, allow the marshals to employ neces- sary office deputies and clerical assistance, upon salaries to be fixed by the Attorney General, from time to time, and paid as hereinafter provided. When any of such office deputies is engaged in the service of any writ, process, subpoena, or other order of the court, or when necessarily absent from the place of his regular employment, on official business, he shall be allowed his actual traveling expenses only, and his necessary and actual expenses for lodging and subsistence, not to ei- 17 JUDICIAL OFFICERS DISTRICT COURT. Ch. 2, 31-32 ceed three dollars per clay, and the necessary actual expenses in transporting prisoners, including necessary guard hire; and he shall make and render accounts thereof as hereinafter provided." (4 Fed. Stats. Ann., 2d ed., p. 740; 2 U. S. Comp. Stats., 1916, 1425, p. 2317.) 31. Marshal's Field Deputies. 11, Act May 28, 1896, c. 252, as amended ly act March 4, 1911, c. 269. "That at any time when, in the opinion of the marshal of any district, the public interest will thereby be promoted, he may appoint one or more deputy marshals for such district, who shall be known as field deputies, and, who, unless sooner removed by the district court as now provided by law, shall hold office during the pleasure of the marshal, except as hereinafter provided, and who shall each, as his com- pensation, receive the gross fees, including mileage, as pro- vided by law, earned by him, not to exceed one thousand five hundred dollars per fiscal year, or at that rate for any part of a fiscal year ; and in addition shall be allowed his actual neces- sary expenses, not exceeding two dollars a day, while en- deavoring to arrest, under process, a person charged with or convicted of crime: Provided, That a field deputy may elect to receive actual expenses on any trip in lieu of mileage: Provided further, That in special cases, where in his judg- ment justice requires, the Attorney General may make an ad- ditional allowance, not, however, in any case to make the aggregate annual compensation of any field deputy in excess of two thousand five hundred dollars nor more than the gross fees earned by such field deputy. The marshal, immediately after making any appointment or appointments under this section, shall report the same to the Attorney General, stating the facts as distinguished from conclusions constituting the reason for such appointment, and the Attorney General may at any time cancel any such appointment as the public inter- est may require." (4 Fed. Stats. Ann., 2d ed., p. 628; 2 U. S. Comp. Stats. 1916, 1423, p. 2317.) 32. Criers and Bailiffs. The court appoints a crier and the marshal may appoint not to exceed five bailifl's, under 5, Jud. Code (Appendix, post). 33, Ch. 2 MANUAL OF FEDERAL PROCEDURE. 18 33. United States District Attorneys. 767, Rev. Stats. " (District attorneys for all the districts.) There shall be appointed in each district, [except in the middle district of Alabama, and the northern district of Georgia, and the western district of South Carolina] , a person learned in the law, to act as attorney for the United States in such dis- trict. [The district attorney of the northern district of Ala- bama shall perform the duties of district attorney of the middle district of said State; and the district attorney of the southern district of Georgia shall perform the duties of dis- trict attorney of the northern district of said State; and the district attorney of the eastern district of South Carolina shall perform the duties of district attorney for the western district of said State]." (4 Fed. Stats. Ann., 2d ed., p. 619; 2 U. S. Comp. Stats. 1916, 1294, p. 2154.) Those portions of the above-quoted section in brackets have been superseded by special provisions. There are also other special pro- visions relating to other states. Such special provisions may be found in 4 Fed. Stats. Ann., 2d ed., pp. 777-799 ; 2 U. S. Comp. State. 1916, 1341-1374, p. 2196 et seq. Their term is four years and they are required to be sworn under 769, Rev. Stats. (4 Fed. Stats. Ann., 2d ed., p. 624; 2 U. S. Comp. Stats. 1916, 1295, p. 2156).. Special counsel may 'be retained to aid United States district at- torneys under 363, Rev. Stats. (4 Fed. Stats. Ann., 2d ed.. p. 620; 1 U. S. Comp. Stats. 1916, 538, p. 282), but heads of departments must call on department of justice for counsel under 189, Rev. Stats. (3 Fed. Stats. Ann., 2d ed., p. 258; 1 U. S. Comp. Stats. 1916, 271, p. 116). Compensation and oath of such special counsel are provided for in 366, Rev. Stats. (4 Fed. Stats. Ann., 2d ed., p. 622; 1 U. S. Comp. Stats. 1916, 541, p. 285). Vacancies in office may be temporarily filled under 793, Rev. Stats. (4 Fed. Stats. Ann., 2d ed., p. 626 ; 2 U. S. Comp. Stats. 1916, 1318, p. 2181). 19 JUDICIAL OFFICERS DISTRICT COURT. Ch. 2, 34-35 34. Assistant District Attorneys. Part 8, Act May 28, 1896, c. 252. "That whenever, in the opinion of the district judge of any district or the chief justice of any territory and the district attorney, evidenced by writing, the public interest requires it, one or more assistant district attorneys may be appointed, by the Attorney General ; but such opinion shall state to the Attorney General the facts as distinguished from conclusions, showing the necessity there- for. Such assistant district attorneys shall be paid such salary as the Attorney General may from time to time de- termine as to each, which shall in no case exceed two thousand five hundred dollars per annum : Provided, That the necessary expenses for lodging and subsistence actually paid, not exceed- ing four dollars per day and actual and necessary traveling expenses of the district attorney and his assistants, while absent from their respective official residences and necessarily employed in going to, returning from, and attending before any United States court, commissioner, or other committing magistrate, and while otherwise necessarily absent from their respective official residences on official business, shall be al- lowed and paid in the manner hereinafter provided." (4 Fed. Stats. Ann., 2d ed., p. 622 ; 2 U. S. Comp. Stats. 1916, 1420, p. 2313.) The provisions of the above-quoted section do not apply to Alaska, Southern District of New York nor District of Columbia ( 24, Act May 28, 1896, c. 252; 4 Fed. Stats. Ann., 2d ed., p. 721 ; ! 6 U. S. Comp. Stats. 1916, 1431, p. 2321). 35. Court Commissioners. These are officers with magis-- terial powers in both civil and criminal matters coming under the jurisdiction of the federal laws. Part 19, Act May 28, 1896, c. 252, as amended Act March 2, 1901, c. 814. "It shall be the duty of the district court of each judicial district to appoint such number of persons, to be known as United States commissioners, at such places in the district as may be designated by the district court, which United States commissioners shall have the same powers and perform the same duties as are now imposed upon commissioners of the circuit courts. The appointment 35, Cll. 2 MANUAL OF FEDERAL PROCEDURE. 20 of such United States commissioners shall be entered of record in the district courts, ~and notice thereof at once given by the clerk to the Attorney General. That such United States commissioners shall hold their offices, respec- tively, for the term of four years, but they shall be at any time subject to removal by the district court; and no person shall at any time be a clerk or deputy clerk of a United States court and a United States commissioner without the approval of the Attorney General: Provided, That all acts and parts of acts applicable to commissioners of the circuit courts, except as to appointment and fees, shall be appli- cable to United States commissioners appointed under this act. Warrants of arrest for violations of internal revenue laws may be issued by United States commissioners upon the sworn complaint of a United States district attorney, assistant United States district attorney, collector or deputy collector of internal revenue, or revenue agent or private citizen, but no such warrant of arrest shall be issued upon the sworn coin- plaint of a private citizen unless first approved in writing by a United States district attorney. That United States com- missioners and all clerks and all deputy clerks of United States courts are hereby authorized to administer oaths." (4 Fed. Stats. Ann., 2d ed., p. 631 ; 2 U. S. Comp. Stats. 1916, 1333, p. 2189.) Commissioners may be appointed by the district judge to ad- minister oaths to appraisers of vessels or goods and merchandise seized for breaches of the laws of the United States 61, Jud. Code (Appendix, post}. The duties of these officers are prescribed by law, and they are, in general, to issue warrants for offenses against the United States; to cause the offenders to be arrested and imprisoned, or bailed, for trial, and to order the removal of offenders to other districts 1014, Rev. Stats. (2 Fed. Stats. Ann., 2 ed., p. 654; 3 U. S. Comp. Stats. 1916, 1674, p. 3447) ; 1015, Rev. Stats. (1 Fed. Stats. Ann., 2d ed., p. 490; 3 U. S. Comp. Stats. 1916, 1679, p. 3485) ; 1016, Rev. Stats. (1 Fed. Stats. Ann., 2d ed., pp. 490, 491; 3 U. S. Comp. Stats. 1916, 1680, p. 3486). To hold to security of the peace and for good behavior, 270, Jud. Code (Appendix, post). 21 JUDICIAL OFFICERS DISTRICT COURT. Ch. 2, 35 To enrry into effect the award or arbitration, or dccree^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 271, Jud. Code (Appendix, post). To take bail and affidavits in civil causes 945, Rev. Stats. (4 Fed. Stats. Ann., 2d ed., p. 772; 3 U. S. Comp. Stats. 1916, 1571, p. 3131). To discharge poor convicts imprisoned for nonpayment of fines 1042, Rev. Stats. (3 Fed. Stats. Ann., 2d ed., p. 328; 3 U. S. Comp. Stats. 1916, 1706, p. 3569). To administer oaths and take acknowledgments 1778, Rev. Stats. (4 Fed. Stats. Ann., 2d ed., p. 772; 4 U. S. Comp. Stats. 1916, 3259, p. 4455). 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 1982-1985, Rev. Stats. (2 Fed. Stats. Ann., 2d ed., p. 133 ; 4 U. S. Comp. Stats. 1916, 3935, p. 4805). To issue search-warrants authorizing internal revenue officers to search premises, where a fraud upon the revenue has been com- mitted 3462, Rev. Stats. (4 Fed. Stats. Ann., 2d ed., p. 323; 6 U. S. Comp. Stats. 1916, 6364, p. 7399). To summon masters of vessels to appear before him and show cause why process should not issue against such vessel 4546, Rev. Stats. (Fed. Stats. Ann., 2d ed., title "Seamen"); 7 U. S. Comp. Stats. 1916, 8335, p. 8838). To issue warrants for and examine persons charged with being fugitives from justice 5270, 5271, Rev. Stats'. (3 Fed. Stats. Ann., 2d ed., p. 265 and p. 281; 10 U. S. Comp. Stats. 1916, 10,110, 10,111, p. 12,367 et seq.). "While their duties are thus prescribed by law, and while they are, to a certain extent, independent in their statutory and judi- cial action, there is no law providing how their duties shall be 35, Ch. 2 MANUAL OF FEDERAL PROCEDURE. 2'Z performed, and so far as relates to their administrative action, we think they were intended to be subject to the orders and di- rections of the court appointing them. As was said by this convt in Griffin v. Thompson, 43 U. S. (2 How.) 244, 257, 11 L. Ed. 253, 258, 'there is inherent in every court a power to supervise the conduct of its officers, and the execution of its judgments and process. Without this power courts would be wholly impotent and useless.' While no express power is given over these officers by statute, their relations to the court are such that some power of this kind must be implied. Though not strictly officers of the court, they have always been considered in the same light as mas- ters in chancery and registers in bankruptcy, and subject to its supervision and control. What shall be the nature of the require- ments in each particular case must be left largely to the discre- tion of the court. Certainly we cannot presume that the court will abuse its discretion, or will act otherwise than is deemed con- ducive to the public good." (U. S. v. Allred, 155 U. S. 591, 39 L. Ed. 273, 15 Sup. Ct. 231.) 23 JUDICIAL DISTRICTS, ETC. Ch. 3, 50-51 CHAPTER 3. JUDICIAL DISTEICTS, TERMS, RECORDS, REPORTS AND RULES OF PRACTICE. SEC. 50. Judicial Districts, Terms and Places of Holding Court. 51. Special Terms, Adjournments and Continuances. 52. When Courts are Open. 53. Orders of Judge at Chambers and in Vacation. 54. District Court Records. 55. Reports of Decisions. 56. Admission to Practice Before. 57. Rules of Practice Law Actions. 58. Rules of Practice Equity Suits. 50. Judicial Districts, Terms and Places of Holding- Court. Chapter 5, Jud. Cod$ (Appendix, post), sets out in alphabetical order the states, with the judicial districts and divisions into which they are divided, the counties included in each district and division, the time of holding the regular terms of court and the places where the courts sit. A judicial district includes the territory embraced in certain counties of some state at a given date. Each state contains one or more judicial districts. The territorial limits of a district never include territory of more than one state. Many districts are subdivided into divisions for convenience in holding court. 51. Special Terms, Adjournments and Continuances. Judi- cial officers for district courts have been treated in chapter 2 above. Special terms may be ordered by the district judge when busi- ness requires, under 11, Jud. Code (Appendix, post). If the judge is absent, the marshal or clerk may adjourn court by order under 12, Jud. Code (Appendix, post). 52-54, Ch. 3 MANUAL OF FEDERAL PROCEDURE. 24 So, also, if the office of judge becomes vacant, the clerk may continue pending proceedings, under 22, Jud. Code (Appendix, post). Trials commenced may be completed in a new term. They are not stayed or discontinued by the arrival of a new term, under 8, Jud. Code (Appendix, post). Monthly adjournments of terms may be made to expedite crim- inal cases, under 10, Jud. Code (Appendix, post). The altering of terms does not affect the validity of proceedings already taken, and matters pending are triable in the next term following, under 7, Jud. Code (Appendix, post). 52. When Courts are Open. The district courts, as courts of admiralty and as courts of equity, are always open for the pur- pose 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. This is a pro- vision of 9, Jud. Code (Appendix, post), and Equity Kule 1. 53. Orders of Judge at Chambers and in Vacation. Any district judge may, upon reasonable notice to the parties, make, direct and award, at chambers or in the clerk's office, and in vaca- tion 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. This is the provision of latter part 9, Jud. Code (Appendix, post), and also Equity Rule 1. 54. District Court Records. Records of the district court are kept where the court is held, and, if more than one of such places, where the district judge designates under 6, Jud. Code (Appendix, post). On a territory becoming a state, provisions for* transferring territorial records to the federal district court appear in 62 and 63, Jud. Code (Appendix, post). 25 JUDICIAL DISTRICTS, ETC. Ch. 3, 55-58 55. Reports of Decisions. The decisions of the district courts are to be found in the Federal Reporter, containing, in 1917, about 244 volumes. This set also contains the United States cir- cuit court decisions up to the time said court was abolished, Janu- ary 1, 1912. It also contains the decisions of the circuit court of appeals, established in 1891, and the' commerce court, established in 1911, and since abolished. (As to the commerce court, see chap- ter 9, Jud. Code, in our Appendix.) Decisions prior to 1880 are contained in the Federal Cases. 56. Admission to Practice Before. The rules for admission to practice before the district courts of the United States are con- tained in the court rules adopted by the several district courts, and vary in the different districts. Generally, attorneys who have been admitted to practice in the state courts are eligible to be admitted on motion. 57. Rules of Practice Law Actions. This subject is treated post, chapters 15 to 24, inclusive. The rules governing law actions generally conform to those of state courts of record as modified by federal statutes and rules of practice of the district courts in the several districts. Among the conformity statutes are 914, 915, 916, 918, 990, 991, 993, 966, 967, 858, Rev. Stats, of the United States, and Act June 1, 1874, c. 200. There are numerous special federal statutes dealing with various subjects relating to proce- dure. Among some of such subjects are venue, amendments, evi- dence, depositions, witnesses, costs and fees and bills of excep- tions. Sec chapter 15, post, summarizing these statutes. 58. Rules of Practice Equity Suits. Equity suits are governed by the United States statutes, supreme court rules and additional district court rules. Under 917, Rev. Stats., the su- preme court is given power to prescribe rules in equity and admir- alty suits, and under 918 and 913, Rev. Stats., and Equity Rule 79, the district courts may prescribe additional rules for their own practice. The equity suit is treated post, chapters 25 to 55, inclusive. 60, Ch. 4 MANUAL OF FEDERAL PROCEDURE. 26 CHAPTER 4. TERRITORIAL JURISDICTION VENUE. SEC. 60. In General. 61. Civil Suits In General. 62. Nonlocal Suits in State of More than One District. 63. Nonlocal Suits Where District Contains More than One Division Criminal Cases Transfer. 64. Local Suits With Defendant in Another District Same State. 65. Local Suits With Subject Matter Lying Partly in One District and Partly in Another. 66. Liens Clouds on Title Absent Defendant. 67. Receiver's Jurisdiction Over Real Property in Other Districts in Circuit. 68. Transfer to Another Division on Stipulation. 69. On Creation of New District or Division or Transfer of Territory. 70. Same Preservation and Enforcement of Liens. 71. Infringement of Letters Patent. 72. Under Copyright Laws. 73. To Enjoin Comptroller of Currency. 74. Part of Several Defendants not Found. 75. Crimes and Offenses. 76. Penalties and Forfeitures. 77. Taxes and Internal Revenue. 78. Condemnation Insurrectionary Property. 79. Seizures for Forfeiture Embargo or Insurrection. 80. Prosecutions for Failure to File Tariffs, Giving Rebates, etc. 81. Prosecutions for Violations of the Sixteen Hour Law. 82.. Suits Affecting Orders of Interstate Commerce Commission. 83. Prosecutions for Injuries to Fortifications. 84. Prosecutions of Offenses Against the Postal Laws in Selling Intoxicat- ing Liquors. 85. Prosecutions for Violations of Immigration Laws. 86. Issue of Venue How Raised. 60. In General. In considering the subject of venue, the federal district or division corresponds to the county in state systems. The distinctions exist in the federal as in the state practice re- specting suits of local and suits transitory in their nature. Suits of a local nature must be brought in the district in which lies some 27 TERRITORIAL JURISDICTION VENUE. Ch. 4, 60 part of the land or other property of a fixed character, the subject of the suit. Suits not of a local nature should be brought in the district whereof the defendant is an inhabitant, except where the jurisdic- tion is founded only on the fact that the action is between citizens of different states, in which case thesuit shall be brought only in the district of residence of either the plaintiff or the defendant. These are the provisions of 51, Jud. Code, quoted 61, post. Where there is more than one district in a state and several de- fendants in a suit not of a local nature, it may be brought where any of the defendants reside and process issued to the other de- fendants residing in other districts in the state. ( 52, Jud. Code, quoted 62, post.) In like manner, where there is more than one division in a dis- trict and several defendants in a suit not of local nature, the suit may be brought in the division of the residence of any of the de- fendants and process issued to the other defendants in other divi- sions and districts in the state. ( 53, Jud. Code, quoted 63, post.) Suits of local nature should be brought where the land lies, and if a defendant resides in a different district in the same state, origi- nal process may be served on him therein. ( 54, Jud. Code, quoted 64, post.) If the suit is of local nature and the subject matter lies partly in one district and partly in another within the same state, suit may be brought in either district. ( 55, Jud. Code, quoted 65, post.) In suits to enforce any legal or equitable lien upon, or claim to, or to remove any encumbrance or lien or cloud upon the title to, real or personal property within the district where the suit is brought, service may be made on nonresident or absent defendants by publication. ( 57, Jud. Code, quoted 66, post.) In a suit in which a receiver is appointed, where the land or other property of a fixed character, the subject of the suit, lies within different states in the same circuit, the receiver upon proper 61-62, Ch. 4 MANUAL OF FEDERAL PROCEDURE. 28 proceedings may control same, although outside the district of his appointment. ( 56, Jud. Code, quoted 67, post.) There are special provisions relating to crimes and offenses ( 75, post) ; penalties and forfeitures ( 76, post) ; taxes and internal revenue ( 77, post) ; seizures ( 79, post); patent cases ( 71, post); under the copyright .laws (81, post); suits against the comptroller of currency (73, post); prosecutions for injuries to fortifications ( 83, post) ; prosecutions for violations of the postal laws regarding use of the mails advertising, etc., in prohibition states, intoxicating liquors ( 84, post) ; prosecutions for violations of the sixteen hour law ( 81, post) ; interstate commerce act ( 82, post) ; failure to file tariffs, etc.. ( 80, post) ; and prosecutions for violation of the immigration laws ( 85, post). 61. Civil Suits In General. 5i, Jud. Code (Embracing 739, Rev. Stats.). "Except as provided in the five succeeding sections, no person shall be arrested in one district for trial in another, in any civil action before a district court; and, except as provided in the six succeeding sections, no civil suit shall be brought in any dis- trict court against any person by any original process or pro ceeding in any other district than that whereof he is an in- habitant; 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." (5 Fed. Stats. Ann., 2d ed., p. 486; 1 U. S. Comp. Stats. 1916, 1033, pp. 1116-1159; Sim- kins' Federal Equity Suit, 3d ed., pp. 48, 53, 92, 94, 96, 100, 110, 314, 316, 333, and 833.) This section is substantially what was already the law. 62. Nonlocal Suits in State of More Than One District. 55, Jud. Code (Re-enacting 740, Rev. Stats.). "When a state contains more than one district, every suit not of a local nature, in the district court thereof, against a single defend- ant, 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. 29 TERRITORIAL JURISDICTION VENUE. Ch. 4, 63 in either district, and a duplicate writ may be issued against the defendants, directed to the marshal of any other district in which any defendant resides. The clerk issuing the dupli- cate writ shall indorse thereon that it is a true copy of a writ sued out of the court of the proper district ; and such original and duplicate writs, when executed and returned into the office from which they issue, shall constitute and be proceeded on as one suit ; and upon any judgment or decree rendered therein, execution may be issued, directed to the marshal of any dis- trict in the same state." (5 Fed. Stats. Ann., 2d ed., p. 518; 1 U. S. Oomp. Stats. 1916, 1034, p. 1159; Simkins' Federal Equity Suit, 3d ed., pp. 48, 98, 105, 107, 108, 313, 316 ; Foster's Federal Practice, 5th ed., pp. 182, 577.) 63. Nonlocal Suits Where District Contains More Than One Division Criminal Cases Transfer. 53, Jud. Code. "When a district contains more than one division, every suit not of a local nature against a single de- fendant must be brought in the division where he resides; but if there are two or more defendants residing in different divisions of the district it may be brought in either division. All mesne and final process subject to the provisions of this section may be served and executed in any or all of the divi- sions of the district, or if the state contains more than one 'district, then in any of such districts, as provided in the pre- ceding 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 dis- trict. 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 manner 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 jStates such re- moval shall be to the United States district court in the divi- sion in which the county is situated from which the removal 64-66, Ch. 4 MANUAL OF FEDERAL PROCEDURE. 30 is made ; and the time within which the removal shall be per- fected, in so far as it refers to or is regulated by the terms of United States courts, shall be deemed to refer to the terms of the United States district court in such division." (5 Fed. Stats. Ann., 2d ed., p. 520; 1 U. S. Comp. Stats. 1916, 1035, p. 1161; Simkins' Federal Equity Suit, 3d ed., pp. 48, 108, 134, 333, 313, 316; Foster's Federal Practice, 5th ed., p. 577.) 64. Local Suits With Defendant in Another District Same State. 54, Jud. Code (Re-enacting 741, Rev. Stats.). "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. " (5 Fed. Stats. Ann., 2d ed., p. 523 ; 1 U. S. Comp. Stats. 1916, 1036, p. 1163; Simkins' Federal Equity Suit, 3d ed., pp. 49, 100, 313, 316; Foster's Federal Practice, 5th ed., pp. 208, 577.) 65. Local Suits With Subject Matter Lying 1 Partly in One District and Partly in Another. 55, Jud. Code (Re-enacting 742, Rev. Stats.). "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 jurisdiction 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." (5 Fed. Stats. Ann., 2d ed., p. 523; 1 U. S. Comp. Stats. 1916, 1037, p. 1164; Simkins' Federal Equity Suit, 3d ed., pp. 100, 313, 316; Foster's Federal Practice, 5th ed., pp. 182, 210, 577.) 66. Liens Clouds on Title Absent Defendant. 57, Jud. Code (Old 738, 742, Rev. Stats.). "When in any suit commenced in any district court of the United States 31 TERRITORIAL JURISDICTION VENUE. Ch. 4, 66 to enforce any legal or equitable lien upon or claim to, or to remove any encumbrance or lien or cloud upon the title to real or personal property within the district where such suit is brought, one or more of the defendants therein shall not be an inhabitant of or found within the said district, or shall not voluntarily appear thereto, it shall be lawful for the court to make an order directing such absent defendant or defendants to appear, plead, answer, or demur by a day certain to be designated, which order shall be served on such absent de- fendant or defendants, if practicable, whenever found, and also upon the person or persons in possession or charge of said property, if any there be; or where such personal service upon such absent defendant or defendants is not practicable, such order shall be published in such 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, answer, 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 jurisdiction, and proceed to the hearing and adjudication of such suit in the same manner as if such absent defendant had been served with process within the said district; but said adjudication shall, as regards said absent defendant or defendants without appear- ance, affect only the property which shall have been the sub- ject of the suit and under the jurisdiction of the court therein, within such district; and when a part of the said real or per- sonal property against which such proceedings shall be taken shall be within another district, but within the same state, such suit may be brought in either district in said state: Provided, however, That any defendant or defendants not actually personally notified as above provided may, at any time within one year after final judgment in any suit men- tioned in this section, enter his appearance in said suit in said district court, and thereupon the said court shall make an order setting aside the judgment therein and permitting said defendant or defendants to plead therein on payment by him or them of such costs as the court shall deem just; and there- upon said suit shall be proceeded with to final judgment according to law." (5 Fed. Stats. Ann., 2d ed., p. 525; I 67-68, Ch. 4 MANUAL OF FEDERAL PROCEDURE. 32 U. S. Comp. Stats. 1916, 1039, p. 1165; Simians' Federal Equity Suit, 3d ed., pp. 48, 49, 102, 103, 237, 336, 337; Fos- ter's Federal Practice, 5th ed., pp. 185, 599.) 67. Receiver's Jurisdiction Over Real Property in Other Districts in Circuit. 55, Jud. Code (New}. "Where in any suit in which a receiver shall be appointed the land or other property of a fixed character, the subject of the suit, lies within different states in the same judicial circuit, the receiver so appointed shall, upon giving bond as required by the court, immediately be vested with full jurisdiction and control over all the prop- . erty, the subject of the suit, lying or being within such cir- cuit ; 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 disapproval ; and subject, also, to the filing and entering in the district court for each district of the cir- cuit 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 ap- pointment within such thirty days, or the failure to file such certified copy of the bill and order of appointment within ten days, as herein required, shall devest such receiver of jurisdiction over all such property except that portion thereof lying or being within the state in Avhich the suit is brought. In any case coming within the provisions of this section, in which a receiver shall be appointed, process may issue and be executed within any district of the circuit in the same manner and to the same extent as if the property were wholly within the same district; but orders affecting such property shall be entered of record in each district in which the property affected may lie or be." (5 Fed. Stats. Ann., 2d ed., p. 524; 1 U. S. Comp. Stats. 1916, 1038, p. 1164; Foster's Federal Practice, 5th ed., pp. 211, 577, 953, 957.) 68. Transfer to Another Division on Stipulation. 55, Jud. Code (Drawn from 24 Stats. 425; 34 Stats. 206). "Any civil cause, at law or in equity, may, on written stipu- 33 TERRITORIAL JURISDICTION VENUE. Ch. 4, 69 lation 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 transferred to the court of any other division of the same district, without regard to the residence of the defendants, for trial. When a cause shall be ordered to be transferred to a court in any other division, it shall be the duty of the clerk of the court from which the transfer is made to carefully transmit to the clerk of the court to which the transfer is made the entire file of papers in the cause and all documents and deposits in his court pertaining thereto, together with a certified transcript of the records of all orders, interlocutory decrees, or other . 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 hence- forth constitute a part of the record of the cause in the court to which the transfer shall be made. The clerk receiving such transcript and original papers shall file the same and the case shall then proceed to final disposition as other cases of a like nature." (5 Fed. Stats. Ann., 2d ed., p. 537; 1 U. S. Comp. Stats. 1916, 1040, p. 1180; Simkins' Federal Equity Suit, 3d ed., pp. 108, 134.) 69. On Creation of New District or Division or Transfer of Territory. 59, Jud. Code. "Whenever any new district or division has been or shall be established, or any county or territory has been or shall be transferred from one district or division to an- other district or division, prosecutions for crimes and offenses committed within such district, division, county, or territory prior to such transfer, shall be commenced and proceeded with the same as if such new district or division had not been created, or such county or territory had not been transferred, unless the court, upon the application of the defendant, shall order the Manual 8 70, Ch. 4 MANUAL OP FEDERAL PROCEDURE. 34 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 ter- ritory, 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." (5 Fed. Stats. Ann., 2d ed., p. 538; 1 U. S. Comp. Stats. 1916, 1041, p. 1180.) 70. Same Preservation and Enforcement of Liens. 60, Jud. Code (Embracing 24 Stats. 309, and 31 Stats. 881). "The creation of a new district or division, or the trans- fer of any county or territory from one district or division to another district or division, shall not affect or devest any lien theretofore acquired in the circuit or district court by virtue of a decree, judgment, execution, attachment, seizure, or otherwise, upon property situated or being within 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 ac- quired, upon the request and at the cost of the party desiring the same, shall make a true and certified copy of the record . . thereof, which, when so made and certified, and filed in the proper court of the district or division in which such property is situated or shall be, after such transfer, shall constitute the rec- ord of such lien in such court, and shall be evidence in all courts and places equally with the original thereof ; and thereafter like proceedings shall be had thereon, and with the same effect, as though the cause or proceeding had been originally insti- tuted in such court. The provisions of this section shall apply not only in all cases where a district or division is created, or a county or any territory is transferred by this or any future act, but also in all cases where a district or division has been created, or a county or any territory has been transferred by any law heretofore enacted." (5 Fed. Stats. Ann., 2d ed., p. 538; 1 U. S. Comp. Stats. 1916, 1042, p. 1181.) 35 TERRITORIAL JURISDICTION VENUE. Ch. 4, 71-74 71. Infringement of Letters Patent. 45, Jud. Code (Re-enacting 29 Stats. 695). "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 inhab- itant, or in any district in which the defendant, whether a person, partnership, or corporation, shall have committed acts of infringement and have a regular and established place of business. If such suit is brought in a district of which the defendant is not an inhabitant, but in which such defendant has a regular and established place of business, service of process, summons, or subpoena upon the defendant may be made by service upon the agent or agents engaged in con- ducting such business in the district in which suit is brought." (5 Fed. Stats. Ann., 2d ed., p. 478; 1 U. S. Comp. Stats. 1U16, 1030, p. 1105; Foster's Federal Practice, 5th ed., p. 184.) 72. Under Copyright Laws. 35, Act March 4, 1909, c. 320. "That civil actions, 'suits, or proceedings arising under this Act may be instituted in the district of which the defendant or his agent is an inhabitant, or in which he may be found." (2 Fed. Stats. Ann., 2d ed., p. 593 ; 9 U. S. Comp. Stats. 1916, 9556, p. 10,994.) 73. To Enjoin Comptroller of Currency. 49, Jud. Code (Re-enacting 736, Rev. Stats.}. "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." (5 Fed. Stats. Ann., 2d ed., p. 482; 1 U. S. Comp. Stats. 1916, 1031, p. 1109; Simkins' Federal Equity Suit, 3d ed., p. 145; Foster's Fed- eral Practice, 5th ed., p. 187.) . 74. Part of Several Defendants not Found. 50, Jud. Code (Re-enacting 757, Rev. Stats.). "Whon there are several defendants in any suit at law or in equity, and one or more of them are neither inhabitants of nor found within the district in which the suit is brought, and do not 75, Ch. 4 MANUAL OF FEDERAL PROCEDURE. 36 voluntarily appear, the court may entertain jurisdiction, and proceed to the trial and adjudication of the suit between the parties who are properly before it; but the judgment or de- cree rendered therein shall not conclude or prejudice other parties not regularly served with process nor voluntarily ap- pearing to answer; and nonjoinder of parties who are not inhabitants of nor found within the district, as aforesaid, shall not constitute matter of abatement or objection to the suit." (5 Fed. Stats. Ann., 2d ed., p. 482; 1 U. S. Comp. Stats. 1916, 1032, p. 1109; Simkins' Federal Equity Suit, 3d ed., p. 101.) 75. Crimes and Offenses. Capital offenses. 40, Jud. Code (Re-enacting 729, Eev. Stats.}. "The trial of. offenses punishable with death shall be had in the county where the offense was committed, where that can be done with- out great inconvenience.'' (5 Fed. Stats. Ann., 2d ed., p. 467; 1 U. S. Comp. Stats. 1916, 1022, p. 1092; Foster's Federal Practice, 5th ed., p. 1723.) Committed on high seas or outside state jurisdiction. 41, Jud. Code (Re-enacting 730, Rev. Stats.}. "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." (5 Fed. Stats. Ann., 2d ed., p. 468; 1 U. S. Comp. Stats, 1916, 1023, p. 1092; Foster's Federal Practice, 5th ed., p. 1724.) Committed in two districts. 42, Jud. Code (Re-enacting 731, Rev. Stats.}. "When any offense against the United States is begun in one judicial district and completed in another, it shall be deemed to have been committed in either, and may be dealt with, inquired of, tried, determined, and punished in either district, in the same manner as if it had been actually and wholly committed there- in." (5 Fed. Stats. Ann., 2d ed., p. 470; 1 U. S. Comp. Stats. 1916, 1024, p. 1096; Foster's Federal Practice, 5th ed., p. 1723; Hyde & Schneider v. United States, 225 U. S. 347, 56 L. Ed. 1114, 32 Sup. Ct. 793.) 37 TERRITORIAL JURISDICTION VENUE. Ch. 4, 76 Sale of arms and intoxicants in Pacific Islands deemed on high seas. 309, Grim. Code (Drawn from 32 Stats. 33) . "All offenses against the provisions of the section last preceding ( 308 Crim. Code), committed on any of said islands or on the waters, rocks, or keys adjacent thereto, shall be deemed com- mitted on the high seas on board a merchant ship or vessel belonging to the United States, and the courts of the United States shall have jurisdiction accordingly." (Fed. Stats. Ann., 2d ed., "Penal Laws"; 10 U. S. Comp. Stats. 1916, 10,482, p. 12,928.) Vessel defined. 310, Crim. Code (New"). "The words, 'vessel of the United States,' wherever they occur in this chapter, shall be construed to mean a vessel belonging in whole or in part to the United States, or any citizen thereof, or any corporation created by or under the laws of the United States, or of any state, territory, or district thereof." (Fed. Stats. Ann., 2d ed., "Penal Laws"; 10 U. S. Comp. Stats. 1916, 10,483, p. 12,928.) 76. Penalties and Forfeitures. Pecuniary penalties and forfeitures. 43, Jud. Code (Re-enacting 732, Rev. Stats.). "All pecuniary penalties and forfeitures may be sued for and re- covered either in the district where they accrue or in the dis- trict where the offender is found." (5 Fed. Stats. Ann., 2d ed., p. 475; 1 U. S. Comp. Stats. 1916, 1025, p. 1102.) Seizures made on high seas for forfeitures. 45, Jud. Code (Re-enacting 734, Rev. Stats.). "Pro- ceedings on seizures made on the high seas, for forfeiture und^r any law of the United States, may be prosecuted in any dis- trict 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 seiz- ure is made, except in cases where it is otherwise provided." (5 Fed. Stats. Ann., 2d ed., p. 476; 1 U. S. Comp. Stats. 1916, 1X)27, p. 1102; Foster's Federal Practice, 5th ed., p. 188.) 77-79, Ch. 4 MANUAL OF FEDERAL PROCEDURE. 38 77. Taxes and Internal Revenue. 44, Jud. Code '(Re-enacting 733, Rev. Stats.}. "Taxes accruing under any law providing internal revenue may be sued for an.d recovered either in the district where the liability for such tax occurs or in the district where the delinquent re- sides." (5 Fed. Stats. Ann., 2d ed., p. 476; 1 U. S. Comp. Stats. 1916, 1026, p. 1102.) 78. Condemnation Insurrectionary Property. 46, Jud. Code (Re-enacting 755, Rev. Stats.}. "Pro- ceedings for the condemnation of any property captured, whether on the high seas or elsewhere out of the limits of any judicial district, or within any district, on 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." (5 Fed. Stats. Ann., 2d ed., p. 477; 1 U. S. Comp. Stats. 1916, 1028, p. 1104; Simkins' Federal Equity Suit, 3d ed., p. 131; Foster's Federal Practice, 5th ed., p. 188.) 79. Seizures for Forfeiture Embargo or Insurrection. 47, Jud. Code (Re-enacting 564, Rev. Stats.}. "Pro- ceedings 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 con- veying 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." (5 Fed. State. Ann. 2d ed., pp. 477, 478, 39 TERRITORIAL JURISDICTION VENUE. Ch. 4, 80-82 1 U. S. Comp. Stats. 1916, 1029, p. 1104; Foster's Federal Practice, 5th ed., p. 188.) 80. Prosecutions for Failure to File Tariffs, Giving- Rebates, etc. Part 1, Act Feb. 19, 1903, c. 70S, as amended 2, Act June 29, 1906, c. 3591. "Every violation of this section shall be prosecuted in any court of the United States having juris- diction of crimes within the district in which such violation was committed, or through which the transportation may have been conducted; and whenever the offense is begun in one jurisdiction and completed in another it may be dealt with, inquired of, tried, determined, and punished in either juris- diction in the same manner as if the offense had been actually and wholly committed therein." (4 Fed. Stats. Ann., 2d ed., pp. 549, 550; 8 U. S. Comp. Stats. 1916, 8597, p. 9265.) It is sufficient to sustain the jurisdiction of a court that the shipments with respect to which it is charged that rebates were granted were transported into the district, and such jurisdiction is not defeated by the fact that the arrangement was made, or the rebates paid or settled for, in another district. (Northern Central Ky. Co. v. United States, 241 Fed. 25.) 81. Prosecutions for Violations of the Sixteen Hour Law. Part 3, Act March 4, 1907, c. 2939, as amended by 1, Act May 4, 1916, c. 109. Prosecutions to be brought "in the dis- trict court of the United States having jurisdiction in the locality where such violations shall have been committed." (Fed. Stats. Ann., 2d ed., "Railroads"; 8 U. S. Comp. Stats. 1916, 8679, p. 9455.) 82. Suits Affecting Orders of Interstate Commerce Com- mission. Part Act October 22, 1913, c. 32. "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 83, Ch. 4 MANUAL OF FEDERAL PROCEDURE. 40 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 petition 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 transporta- tion relates to 'a through shipment, the term 'destination' shall be construed as meaning final destination of such shipment. ' ' (5 Fed. Stats. Ann., 2d ed., p. 1108 ; 1 U. S. Comp. Stats. 1916, 994, p. 833.) On reversal of commerce court, the supreme court will remand to the district court. (The Los Angeles Switching Case, 234 U. S. 294, 58 L. Ed. 1319, 34 Sup. Ct. 814.) For payment of money. 16, Act of February 4, 1887, c. 104, as amended 5, Act March, 2, 1889, c. 382, and 5, Act June 29, 1906, c. 3591, and 13, Act June 18, 1910, c. 309. Suits to enforce payment of money may be brought in the district court "for the district in which he resides or in which is located the principal operat- ing office of the carrier, or through which the road of the car- rier runs, or in any state court of general jurisdiction having jurisdiction of the parties, . . . ' (4 Fed. Stats. Ann., 2d ed., p. 476; 8 U. S. Comp. Stats. 1916, 8584, pt. (2), p. 9222.) 83. Prosecutions for Injuries to Fortifications. Part 44, Grim. Code, as amended Act March 4, 1917, c. 180. " . . . shall be punished on conviction thereof in a district or circuit court of appeals of the United States for the district or circuit in which the offense is committed, or into which the offender is first brought, by a fine of not more than $5,000. or by imprisonment for a term not exceeding five years, or by both, in the discretion of the court." (Fed. Stats. Ann., 2d ed., title "Penal Laws," Pamphlet Supp., Nos. 9-10, p. 73; U. S. Comp. Stats. 1916, 10,208.) 41 TERRITORIAL JURISDICTION VENUE. Cll. 4, 84-86 44, Grim. Code, as amended 19, Act of May 22, 1917, by adding : ' ' Provided, That offenses hereunder committed within the Canal Zone or within any defensive sea areas which the President is authorized to establish by said section, shall be cognizable in the District Court of the Canal Zone, and juris- diction is hereby conferred upon said court to hear and deter- mine all such cases arising under said section and to impose the penalties therein provided for the violation of any of the provi- sions of said section." (Fed. Stats. Ann., 2d ed., title "Penal Laws," Pamphlet Supp., No. 11, pp. 55-56; U. S. Comp. Stats. 1916, 10,208; Adv. Sheets, 241 Fed. 215.) 84. Prosecutions of Offenses Against the Postal Laws in Sell- ing Intoxicating Liquors. The venue of prosecutions for using the mails for advertisements, etc., of intoxicating liquors in- tended for prohibition states is designated as follows: Part 5, Act March 3, 1917, c. 162. " . . . Any person violating any provision of this section may be tried and pun- ished, either in the district in which the unlawful matter or publication was mailed or to which it was carried by mail for delivery, according, to direction thereon, or in which it was caused to be delivered by mail to the person to whom it was addressed." (Fed. Stats. Ann., 2d ed., title "Intoxicating Liquors," Pamphlet Supp., Nos. 9-10, p. 62; U. S. Comp. Stats. 1916, 10,387b.) 85. Prosecutions for Violations of Immigration Laws. Part 25, Act February 15, 1917, c. - . "... Such prosecutions or suits may be instituted at any place in the United States at which the violation may occur or at which the person charged with such violation may be found. . . . ' (Pamphlet Supp., Fed. Stats. Ann., 2d ed., Nos. 9-10, p. 50, title, "Immigration.") 86. Issue of Venue How Raised. Objections as to the venue of actions must be raised at the earliest possible moment, as this is a personal privilege, and may be waived by the defend- ant's failure to seasonably object. 36, Ch. 4 MANUAL OF FEDERAL PROCEDURE. 42 In cases of removal the question of venue may be important in determining whether or not the suit was one of which the dis- trict court had original jurisdiction. But the defect will be waived if not put in issue by the plaintiff in his motion to remand. The filing of petition and bond for removal is a waiver by the defendant. The issue should be raised in the motion to remand. (In re Moore, 209 U. S. 490, 14 Ann. Gas. 1161, 52 L. Ed. 904, 28 Sup. Ct. 706, cited in American Oil & Supply Co. v. Western Gas Const. Co. [2d Cir.], 239 Fed. 506.) If a suit is originally brought in the federal court and it is not brought in the district of which the defendant is an inhabi- tant (except in the special cases heretofore indicated), or if, in case of diversity of citizenship, the suit is not brought in the residence district of the plaintiff or defendant, the issue as to venue would be raised in a suit in equity under Rule 29 by motion to dismiss. The motion to dismiss should be confined to that special ground, otherwise it may amount to a waiver. (Alder Goldman Commission Co. v. Williams, 211 Fed. 530.) In a suit at law the issue would be raised in that form of plead- ing used to raise jurisdictional questions in the state court of record of the state wherein the district is situated. Generally the pleading would be a demurrer for defects apparent on the face of the record. For a motion to dismiss, the following form is suggested : "In the District Court of the United States for the District of , Division. John Doe, Plaintiff, vs. Eichard Eoe, Defendant. MOTION TO DISMISS. Now comes the defendant in the above-entitled action and moves the court to dismiss same at plaintiff's costs on the ground that, as appears on the face of the bill, at the commencement of this action defendant was not, and is not now, an inhabitant of, nor residing in the district of 43 TERRITORIAL JURISDICTION VENUE. Cll. 4, 86 , where this suit is brought, but that at the commencement of this action and now, defendant was, and is, an inhabitant of, and resides in county which is in the district of the state of and not the district where this suit is brought. , Solicitor." If the objection be that he is not sued in the proper division of the district, the word "division" may be substituted for district in the above form. In case of a corporation, the allegation may be : "That it is not an inhabitant of or residing in the county of , district of , but is an inhabitant of and residing in county in the district of , where its principal office or headquarters are situated, its corporate meetings held and its corporate business transacted. If the bill has the necessary allegations as to citizenship, which may not be true, the issue may be raised in the answer under Equity Rule 29, "In the District Court of the United States in the District of , Division. John Doe, Plaintiff, Richard Eoe, Defendant. ANSWEB. Defendant answering plaintiff's complaint alleges: As a separate defense, denies that defendant at the commencement of this suit was or is now an inhabitant of or resident of the division of where this suit is brought, but alleges that at the commencement of the suit defendant was and now is an inhabitant of , and resides in - county, which is in the district of the state of , and, therefore, this action is not properly within the jurisdiction of this court. ..." 90, Ch. 5 MANUAL OF FEDERAL PROCEDURE. 44 CHAPTER 5. DISTRICT COURT'S JURISDICTION. SEC. 90. In General. 91. District Court Jurisdiction Exclusive of State Courts. 92. Exclusive Jurisdiction. 93. District Court Jurisdiction Concurrent With that of State Courts Amount in Controversy. 94. Original Jurisdiction. 95. Original Jurisdiction Interpleader of Insurance Companies. 96. Jurisdiction Prosecution Violation of Immigration Laws. 97. Jurisdiction by Assignment. 98. Agriculture. 99. Alien Enemies. 100. Same Duties of Marshal. 101. Customs Duties. 102. Rivers, Harbors and Canals Actions to Remove Obstructions. 103. White Slave Traffic. 104. Appellate Jurisdiction Chinese Exclusion Laws. 105. Appellate Jurisdiction Yellowstone National Park. 106. Jurisdiction of Crimes on Indian Reservations South Dakota. 107. Power to Enforce Foreign Consular Awards. 108. Powers of Foreign Consuls Over Disputes Between Seamen. 109. Arrest of Seamen on Application of Consul. 110. Commitment and Discharge. 111. Jurisdiction in Cases Transferred from Territorial Courts. 112. Jurisdiction Under Reclamation Act. 113. Jurisdiction Under Income Tax Law. 114. Jurisdiction in Arbitration of Disputes Between Common Carriers and Employees. 90. In General. Although the jurisdiction of the federal courts is limited, the number and importance of cases involving some ground of federal jurisdiction is considerable and is con- stantly increasing. By the Judicial Code which took effect January 1, 1912, the United States circuit courts were abolished and the district courts were made the federal courts of general, original jurisdiction. As one or more of these federal district courts is located in every state in the United States, the general practitioner should 45 DISTRICT COURT'S JURISDICTION. Ch. 5, 90 be concerned with the scope of its jurisdiction and mode of pro- cedure. The reasons why a practitioner should be familiar with federal jurisdiction and procedure are as follows: (1) such court may be available to him as the best or most convenient court in which to bring a suit; (2) the trial of a case brought by him in the state court may be prevented by his adversary's removal of the case to the federal court; (3) on account of the locality or bias of a state court, the practitioner may find it desirable to remove the suit for a defendant to the federal court; (4) he may be called upon to defend a suit brought in the federal court; (5) he may be employed to pass upon a title litigated in the federal courts. The original jurisdiction of the federal district court is set out in 24, Jud. Code ( 94 below), part of which is made exclusive by 256, Jud. Code ( 92 below), and part by other provisiona (91 following), the remainder being concurrent with that of state courts of record in the various states ( 93 below). Under 24, Jud. Code, the jurisdiction of the district courts is limited to cases involving a federal question (chapter 6, post), or diverse citizenship (chapter 7, post), also with respect to the amount in controversy (chapter 8, post), and the denial of the right of certain assignees to sue unless their assignors could have brought the suits in the federal courts ( 97 below). Considerable volume of business comes into the federal district courts through its jurisdiction on removal of cases from the state courts. This jurisdiction on removal under 28 et seq., Jud. Code, is limited to those cases of concurrent jurisdiction of which the dis- trict court has original jurisdiction. This subject is treated in a separate chapter, chapter 9, entitled, "Removal of Causes Juris- diction and Procedure." Under special provisions of the federal statutes giving jurisdic- tion to the United States courts, several include the United States district court. The United States district court has jurisdiction of various matters ' under the titles, "Agriculture" ( 98, infra), "Alien Enemies" (99, infra), "Arbitration Disputes, Common Carriers 91, Ch. 5 MANUAL OP FEDERAL PROCEDURE. 46 and Employees" ( 114, infra), "Customs Duties" ( 101, infra), "Income Tax Law" (113, infra), "Reclamation Act" (112, infra), "Rivers, Harbors, and Canals" ( 102, infra), and "White Slave Traffic" ( 103, infra), and others. The appellate- jurisdiction of the district court is given by the Chinese exclusion laws, 25, Jud. Code ( 104, infra), over Yellow- stone National Park by 26, Jud. Code .( 105, infra), over crimes in Indian Reservation in South Dakota by 27, Jud. Code ( 106, infra) . The district courts are given power to eniorce awards of foreign consuls by 271, Jud. Code ( 107, infra). In this connection we set out the powers of foreign consuls under 4079, 4080, 4081, Rev. Stats. ( 108, 109, 110, infra). By 64, Jud. Code, the district court is given jurisdiction of cases transferred from territorial courts ( 111, infra). The grounds of federal jurisdiction are treated separately as above suggested in chapters 6 and 7, entitled respectively, "Fed- eral Questions" "Diverse Citizenship." Chapter 8 treats of "Amount in Controversy" as affecting jurisdiction. Chapter 4 treats of "Territorial Jurisdiction Venue." Chapter 5, Jud. Code (Appendix, post), gives the boundaries of the judicial districts and divisions, the times and places of holding court. 91. District Court Jurisdiction Exclusive of State Courts. The district court's exclusive jurisdiction extends over those mat- ters peculiarly within the scope of national control, such as case.s against consuls and vice-consuls, 1 admiralty and maritime causes, 2 seizures and prizes, 3 patents and copyrights, 4 penalties and for- feitures under the federal laws, 5 crimes and offenses of federal cognizance, 6 and also cases where Congress has legislated to the exclusion of state control, as under the bankruptcy laws. 7 So, 1 Subd. 18th, 24, Jud. Code, subd. 8th, 256, Jud. Code. 2 Subd. 3d, 24, Jud. Code, subd. 3d, 256, Jud. Code. 8 Subd. 3d, 24, Jud. Code. subd. 4th, 256, Jud. Code. 4 Subd. 7th, 24, Jud. Code, subd. 5th, 256, Jud. Code. 5 Subd. 9th. 24, Jud. Code, subd. 2d, 256, Jud. Code. Subd. 2d, 24, Jud. Code, subd. 1st, 256, Jud. Code. 7 Subd. 19th, 24, Jud. Code, subd. 6th, 256, Jud. Code. 47 DISTRICT COURT'S JURISDICTION. Ch. 5, 92 also, though not mentioned in 256, Jud. Code, it would have juris- diction, exclusive of the state courts, of suits against the United States, concurrently with the court of claims. 8 It also has juris- diction exclusive of the state courts, of suits for the unlawful in- closure of public lands, 9 and against trusts, monopolies and un- lawful combinations. 10 The amount involved is not material in these cases of exclusive jurisdiction. 11 24, Jud. Code, is quoted in full 94, infra, and 256, Jud. Code, is quoted 92 below. 92. Exclusive Jurisdiction. 256, Jud. Code (from 711, Rev. Stats.}. "The jurisdic- tion 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 : "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. (Part old par. 4, 711, Rev. Stats., and part par. 8, 563, Rev. Stats., and part par. 6, 629, Rev. Stats.) "Fourth. Of all seizures under the laws of the United States, on land or on waters not within admiralty and mari- time 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. 8 Subd. 20th, 24, Jud. Code, 145, Jud. Code. Subd. 21st, 24, Jud. Code. 10 Subd. 23d, 24, Jud. Code, Loewe v. Lawlor, 130 Fed. 633. 11 Laat part subd- 1, 24, Jud. Code. 93-94, Ch. 5 MANUAL OF FEDERAL PROCEDURE. 48 "Eighth. Of all suits and proceedings against ambassadors, -or other public ministers, or their domestics, or domestic ser- vants, or against consuls or vice consuls." (5 Fed. Stats. Ann., 2d ed., p. 921; 2 U. S. Comp. Stats. 1916, 1233, p. 1841; Foster's Federal Practice, 5th ed., pp. 16, 21; Simkins' Fed- eral Equity Suit, 3d ed., pp. 41, 47.) 93. District Court Jurisdiction Concurrent With that of State Courts Amount in Controversy. The federal district courts also have an extensive jurisdiction which is not exclusive but concurrent with that of the state courts of record in the vari- ous states where the several districts lie. Cases where the matter in controversy exceeds, exclusive of inter- est and costs, the sum or value of $3,000, and involving either a federal question or diverse citizenship, may be brought either in the federal- district court of the proper district, or on proper pro- ceedings may be removed thereto from state court wherein such district is located. The amount in controversy is not material under subdivisions second to twenty-fifth, inclusive, 24, Jud. Code, quoted in full below, 94. 94. Original Jurisdiction. 124, Jud. Code (Draurn from 563, Rev. Stats.). "The district courts shall have original jurisdiction as follows: "First. (Where the United States are plaintiffs; and of civil suits at common law or in equity.) Of all suits of a civil nature, at common law or in equity, brought by the United States, or by any officer thereof authorized by law to sue, or between citizens of the same state claiming lands under grants from different states; or where the matter in contro- versy exceeds, exclusive of interest and costs, the sum or value of three thousand dollars, and (a) arises under the Consti- tution or laws of the United States, or treaties made, or which shall be made, under their authority, or (b) is between citi- zens of different states, or (c) is between citizens of a state and foreign states, citizens, or subjects. No district court shall have cognizance of any suit (except upon foreign bills of exchange) to recover upon any promissory note or other 49 DISTRICT COURT 'g JURISDICTION. Ch. 5, 94 chose in action in favor of any assignee, or of any subsequent holder if such instrument be payable to bearer, and be not made by any corporation, unless such suit might have been prosecuted in such court to recover upon said note or other chose in action if no assignment had been made: Provided, however, That the foregoing provision as to the sum or value of the matter in controversy shall not be construed to apply to any of the cases mentioned in the succeeding paragraphs of this section. "Second. (Of crimes and offenses.) Of all crimes and offenses cognizable under the authority of the United States. "Third. (Of admiralty causes, seizures, and prizes.) Of all civil causes of admiralty and maritime jurisdiction, sav- ing to suitors in all cases the right of a common-law remedy where the common law is competent to give it, and to claim- ants the rights and remedies under the workmen's compen- sation law of any State; 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. "Fourth. (Of suits under any law relating to the slave trade.) Of all suits arising under any law relating to the, slave trade. "Fifth. (Of cases under internal revenue, customs, and tonnage laws.) Of all cases arising under any law providing for internal revenue, or from revenue from imports or ton- nage, except those cases arising under any law providing rev- enue from imports, jurisdiction of which has been conferred upon the court of customs appeals. "Sixth. (Of suits under postal laws.) Of all cases aris- ing under the postal laws. "Seventh. (Of suits under the patent, the copyright, and the trademark laws.) Of all suits at law or in equity arising *"\ under the patent, the copyright, and the trademark laws. "Eighth. , (Of suits for violation of interstate commerce laws.) Of all suits and proceedings arising under any law regulating commer.ce, except those suits and proceedings exclu- sive jurisdiction of which has been conferred upon the com- merce court. (Commerce court now abolished and jurisdic- tion transferred to district court. See ch. 9 of the Judicial Code, in our Appendix.) Manual 4 94, Ch. 5 MANUAL OP FEDERAL PROCEDURE. 50 "Ninth. (Of penalties and forfeitures.) Of all suits and proceedings for the enforcement of penalties and forfeitures incurred under any law of the United States. "Tenth. (Of suite on debentures.) Of all suits by the assignee of any debenture for drawback of duties, issued under any law for the collection of duties, against the person to whom such debenture was originally granted, or against any indorser thereof, to recover the amount of such debenture. "Eleventh. (.Of suits for injuries on account of acts done under laws of the United States.) Of all suits brought by any person to recover damages for any injury to his person or property on account of any act done by him, under any law of the United States, for the protection or collection of any of the revenues thereof, or to enforce the right of citizens of the United States to vote in the several states. "Twelfth. (Of suits concerning civil rights.) Of all suits authorized by law to be brought by any person for the re- covery of damages on account of any injury to his person or property, or of the deprivation of any right or privilege of a citizen of the United States, by any act done in furtherance of any conspiracy mentioned in section nineteen hundred and eighty, Revised Statutes. "Thirteenth. (Of suits against persons having knowledge of conspiracy, etc.) Of all suits authorized by law to be brought against any person who, having knowledge that any of the wrongs mentioned in section nineteen hundred and eighty, Revised Statutes, are about to be done, and having power to prevent or aid in preventing the same, neglects or refuses so to do, to recover damages for any such wrongful act. "Fourteenth. (Of suits to redress the deprivation, under color of law, of civil rights.) Of all suits at law o.r in equity authorized by law to be brought by any person to redress the deprivation, under color of any law, statute, ordinance, regu- lation, custom, or usage of any state, of any right, privilege, or immunity, secured by the Constitution of the United States, or of any right secured by any law of. the United States pro- viding for equal rights of citizens of the United States, or of all persons within the jurisdiction of the United States. "Fifteenth. (Of suits to recover certain offices.) Of all suits to recover possession of any office, except that of elector 51 DISTRICT COURT'S JURISDICTION. Ch. 5, 94 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 touching the title to such office arises out of the denial of the right to vote to any citizen offering to vote, on account of race, color, or previous condition of servitude : Provided, That such jurisdiction shall extend only so far as to determine the rights of the parties to such office by reason oLthe denial of the right guaranteed by the Constitution of the United States, and secured by any law, to enforce the right of citizens of the United States to vote in all the states. "Sixteenth. (Of suits against national banking associa- tions.) Of all cases commenced by the United States, or by direction of any officer thereof, against any national banking association, and cases for winding up the affairs of any such bank ; and of all suits brought by any banking association established in the district for which the court is held, under the provisions of title, 'National Banks,' Revised Statutes, to enjoin the Comptroller of the Currency, or any receiver act- ing under his direction, as provided by said title. And all national banking associations established under the laws of the United States shall, for the purpose 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 re- spectively located. "Seventeenth. (Of suits by aliens for torts.) Of all suits brought by any alien for a tort only, in violation of the laws of nations or of a treaty of the United States. "Eighteenth. (Of suits against consuls and vice consuls.) Of all suits against consuls and vice consuls. "Nineteenth. (Of suits and proceedings in bankruptcy.) Of all matters and proceedings in bankruptcy. "Twentieth. (Of suits against the United States.) Con- current 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 regula- tion of an Executive Department, or upon any contract, ex- press or implied, with the government of the United States, or for damages, liquidated or unliquidated, in cases not sound- ing in tort, in respect to which claims the party would be en- titled to redress against the United States, either in a court of law, equity, or admiralty, if the United States were suable, 94, Ch. 5 MANUAL OF FEDERAL PROCEDURE. 52 and of 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, 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 commonly known as 'war claims,' or to hear and determine other claims which had been rejected or reported on adversely prior to the third day of March, eighteen hundred and eighty-seven, by any court, department, or com- mission 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 and tried under the provisions of this paragraph shall be tried by the court without a jury. "Twenty-first. (Of suits for the unlawful inclosure of public lands.) Of proceedings in equity, by writ of injunc- tion, to restrain violations of the provisions of laws of the United States to prevent the unlawful inclosure of public lands; and it shall be sufficient to give the court jurisdiction if service of original process be had in any civil proceeding on any agent or employee having charge or control of the inclosure. 53 DISTRICT COURT'S JURISDICTION. Ch. 5, 95 "Twenty-second. (Of suits under immigration and con- tract labor laws.) Of all suits and proceedings arising under any law regulating the immigration of aliens, or under the contract labor laws. "Twenty-third. (Of suits against trusts, monopolies, and unlawful combinations.) Of all suits and proceedings aris- ing under any law to protect trade and commerce against restraint and monopolies. "Twenty-fourth. (Of suits concerning allotments of land to Indians.) 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 judgment or decree of any such court in favor of any claimant to an allotment of land shall have the same effect, when properly certified to the Secretary of the Interior, as if such allotment had been allowed and approved by him; but this provision shall not apply to any lands now or heretofore 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. (Subd. 24 as amended act Dec. 21, 1911, ch. 5, 37 Stats, at L. 46.) "Twenty-fifth. (Of partition suits where United States is joint tenant.) Of suits in equity brought 'by any tenant in common or joint tenant for the partition of lands in cases where the United States is one of such tenants in common or joint tenants, such suits to be brought in the district in which such land is situate." (4 Fed. Stats. Ann., 2d ed., pp. 838-862 ; 1 U. S. Comp. Stats. 1916, 991, p. 552; Simkins' Federal Equity Suit, 3d ed., pp. 41, 42, 47, fi3, 87, 91, 95, 168, 210, 317, 775, 809, 812, 815, 824. 828, 834; Foster's Federal Practice, 5th ed., pp. 18, 22, 122, 184, 199, 367, 379, 380, 642, 1524, 1932, 2012.) 95. Original Jurisdiction Interpleader of Insurance Com- panies. Act Feb. 22, 1917, c. 113. (Original jurisdiction; bills of interpleader filed by insurance companies, etc.; process; hearing; orders and decrees; district in which bills shall be filed.) 95, Ch. 5 MANUAL OF FEDERAL PROCEDURE. 54 "The district courts of the United States shall have origi- nal cognizance to entertain suits in equity begun by bills of interpleader where the same are filed by any insurance com- pany or fraternal beneficiary society, duly verified, and where it is made to appear by such bill that one or more per- sons, being bona fide claimants against such company or society, reside within the jurisdiction of said court ; that such company or society has made or issued some policy of insurance or certificate of membership providing for the pay- ment of a sum of money of at least $500 as insurance or benefits to a beneficiary or beneficiaries or to the heirs, next of kin, or legal representative of the person insured or mem- ber; that two or more adverse claimants, citizens of different States, are claiming or may claim to be entitled to such in- surance or benefits and that such company or society de- posits the amount of such insurance or benefits with the clerk of said court and abide the judgment of said court. In all such cases the court shall have the power to issue its process for said claimants, returnable at such time as the said court or a judge thereof shall determine, which shall be addressed to and served by the United States marshals for the respec- tive districts wherein said claimants reside or may be found; to hear said bill of interpleader and decide thereon accord- ing to the practice in equity; to discharge said complainant from further liability upon the payment of said insurance or benefit as directed by the court, less complainant's actual court costs; and shall have the power to make such orders and decrees as may be suitable and proper and to issue the necessary writs usual and customary in such cases for the purpose of carrying out such orders and decrees: 'Provided, That in all cases where a beneficiary or beneficiaries are named in the policy of insurance or certificate of membership or where the same has been assigned and written notice thereof shall have been given to the insurance company or fraternal benefit society, the bill of interpleader shall be filed in the district where the beneficiary or beneficiaries may reside.' ' (Pamphlet Supp. Fed. Stats. Ann. Nos. 9-10, p. 65; U. S. Comp. Stats. 1916, 991a, Advance Sheets, 239 Fed. No. 1, p. 56.) 55 DISTRICT COURT'S JURISDICTION. Ch. 5, !::>-!) 7 96. Jurisdiction Prosecution Violation of Immigration Laws. Part 25, Act Feb. 15, 1917, c. . "That the district courts of the United States are hereby invested with full jurisdiction of all causes, civil and criminal, arising under any of the provisions of this Act. That it shall be the duty of the United States district attorney of the proper district to prosecute every such suit when brought by the United State; under this act. . . ." (Pamphlet Supp. Fed. Stats. Ann. Nos. 9-10, p. 50, "Immigration.") 97. Jurisdiction by Assignment. 12 In the latter part of subdivision first, 24, Jud. Code, quoted in full 94, supra, it is provided as follows: "No district court shall have cognizance of any suit (ex- cept upon foreign bills of exchange) to recover upon any promissory note or other chose in action in favor of any as- signee, or of any subsequent holder, if such instrument be payable to bearer, and be not made by any corporation, unless such suit might have been prosecuted in such court to recover upon said note or other chose in action if no assignment had been made." The purpose of this provision is to prevent the conferring of jurisdiction on the "district courts by fraudulent assignments creating an apparent diversity of citizenship. 13 The exceptions permitting assignees to bring suit are: 1st, Suits upon foreign bills of exchange; 2d, suits that might have been prosecuted in such courts if no assignment had been made; 3d, suits upon choses in action made by a corporation payable to bearer. 14 An action in equity by the assignee of an oil and gas lease to restrain others from operating the land for oil and gas is not 12 See note 4 Fed. Stats. Ann., 2d ed., pp. 974-988; 1 U. S. Comp. Stats. 1916, pp. 715-732; Simkins' Federal Equity Suit, 3d ed.. pp. 209-223. 13 See Barclay v. Levee Commissioners, 1 Woods (U. S.), 254, 2 Fed. Cas. No. 997. 14 See Newgass v. New Orleans. 33 Fed. 196, 198; Wilson v. Knox County, 43 Fed. 481; New Orleans v. Quinlan, 173 U. S. 191, 43 L. Ed. 664, 19 Sup. Ct. 329; Quinlan v. New Orleans, 92 Fed. 695; Skinner v. Bar, 77 Fed. 816. 97, Ch. 5 MANUAL OF FEDERAL PROCEDURE. 56 a suit to recover upon a chose in action as an assignee within this provision. (Shaffer v. Marks, 241 Fed. 139.) Another exception is where the assignor is merely the nominal owner. 15 The objection may be raised at any time. 16 The matter being jurisdictional, where the citizenship of the original payee is material, it should be shown in the bill, dis- tinctly alleged, and not by inference. The form of allegation may be as follows: "John Doe, plaintiff, alleges that at all times since the assignment to him of the within cause of action, he was and is a citizen of the state of , and a resident of the county of in said state; that his assignor, Henry Smith, at all times hereinafter mentioned was and is a citizen of the state of and a resident of the county of in said state, and competent to have prosecuted in this court a suit upon the cause of action herein set out if no assignment had been made; that defendant, Richard Roe, at all times hereinafter mentioned, was and is a citizen of the state of residing in said county of said state." It is not enough to allege in the complaint that the assignor was a citizen of a different state from defendant, but there must be shown diverse citizenship of the assignor and the defendant at the time of bringing the suit. 17 In order to remove a case from a state to the federal court, the bill filed in the state court must show proper citizenship of the assignors. 18 --*. tt Objection may be made by motion to dismiss if the defect ap- pears on the face of the complaint, or in the answer, under Equity Rule 29, in equity suits ; or in an action at law by an appropriate form of state pleading provided to raise jurisdictional points. The following is suggested as matter to be incorporated in what- ever form of pleading is used to raise the objection: "Defendant further alleges that the bill of complaint shows that plaintiff derives title and right to sue through an assignment from Henry Smith, that said Henry Smith was and is now a citizen of the state of ; and, 15 Kirven v. Virginia Carolina Chemical Co., 145 Fed. 2S8, 7 Ann. Cas. 219, 76 C. C. A. 172. 16 Utah-Nevada Co. v. De Lamar, 133 Fed. 113, 66 C. C. A. 179. 17 Benjamin v. City of New Orleans, 71 Fed. 758; same case circuit court of appeals, 74 Fed. 417, 20 C. C. A. 591. 18 Simkins' Federal Equity Suit, 3d ed., p. 221. 57 DISTRICT COURT'S JURISDICTION. Ch. 5, 98-100 therefore, that there is no diversity of citizenship on which to base the jurisdiction of this court in this suit." 98. Agriculture. 5, Act of April 26, 1910, c. 191. "That it shall be the duty of each district attorney to whom the Secretary of Agriculture shall report any violation of this act, or to whom any director of experiment station or agent of any state, territory, or the District of Columbia, under authority of the Secretary of Agriculture, shall present satisfactory evi- dences of any such violation, to cause appropriate proceed- ings to be commenced and prosecuted in the proper courts of the United States, without delay, for the enforcement, of the penalties as in such case herein provided." (36 Stats. 332 ; 1 Fed. Stats. Ann., 2d ed., p. 222 ; 8 U. S. Comp. Stats. 1916, 8769.) 99. Alien Enemies. 4069, Rev. Stats. "After any such proclamation has been made, the several courts of the United States having criminal jurisdiction, and the several justices and judges of the courts of the United States, are authorized, and it shall be their duty, upon complaint against any alien enemy resi- dent and at large within such jurisdiction or district, to the danger of the public peace or safety, and contrary to the tenor or intent of such proclamation, or other regulations which the President may have established, to cause such nlien to be duly apprehended and conveyed before such court, judge or justice; and after a full examination and hearing on such complaint, and sufficient cause appearing, to order such alien to be removed out of the territory of the United States, or to give sureties for his good behavior, or to be otherwise restrained, conformably to the proclamation or regulations established as aforesaid, and to imprison or otherwise secure such alien, until the order which may be so made shall be per- formed." (1 Fed. Stats. Ann., 2d ed., p. 365 j 7 U. S. Comp. Stats. 1916, 7617.) 100. Same Duties of Marshal. 4070, Rev. Stats. "When an alien enemy is required by the President, or by ordor of any court, judge, or justice, to 101, Ch. 5 MANUAL OP FEDERAL PROCEDURE. 58 depart and to be removed, it shall be the duty of the marshal of the district in which "he shall be apprehended to provide therefor, and to execute such order in person, or by hig deputy, or other discreet person to be employed by him, by causing a removal of such alien out of the territory of the United States; and for such removal the marshal shall have the warrant of the President, or of the court, judge, or jus- tice ordering the same, as the case may be." (1 Fed. Stats. Ann., 2d ed., p. 365; 7 U. S. Comp. Stats. 1916, 7618.) 101. Customs Duties. 3, Act June 10, 1910, c. 283. "That any licensed custom- house broker aggrieved by the decision of the Secretary of the Treasury may, within thirty days thereafter, and not after- wards, apply to the United States circuit court for the cir- cuit in which the collection district is situated for a review of such decision. Such application shall be made by filing . in the office of the clerk of said court a petition praying relief in the premises. Thereupon the court shall immediately give notice in writing of such application to the Secretary of the Treasury, who shall forthwith transmit to said court the record and evidence taken in the case, together with a state- ment of his decision therein. The filing of such application shall operate as a stay of the revocation of the license. The matter may be brought on to be heard before the said court in the same manner as a motion, by either the United States district attorney or the attorney for the custom-house broker, and the decision of said United States circuit court for the circuit in which the collection district is situated shall be upon the merits as disclosed by the record and be final, and the proceedings remanded to the Secretary of the Treas- ury for further action to be taken in accordance with the terms of the decree. (36 Stats. 465; 2 Fed. Stats. Ann., 2d ed., p. 1008; 6 U. S. Comp. Stats. 1916, 5552.) See subd. 5, 24, Jud. Code, quoted 94 above, giving the district court original jurisdiction of cases arising under the customs laws. 59 DISTRICT COURT'S JURISDICTION. Ch. 5, 102-104 102. Rivers, Harbors and Canals Actions to Remove Obstructions. Part 5, Act June 21, 1906, c. 3508, as amended Act June 23, 1910, c. 360. "And the removal of any structures erected or maintained in violation of the provisions of this act or the order or direction of the Secretary of War or the Chief of Engineers made in pursuance thereof may be enforced by injunction, mandamus, or other summary process, upon ap- plication to the circuit court in the district in which such structure may, in whole or in part, exist, and proper pro- ceedings to this end may be instituted under the direction of the Attorney General of the United States at the request of the Chief of Engineers or the Secretary of War; and in case of any litigation arising from any obstruction or al- leged obstruction to navigation created by the construction of any dam under this act the cause or question arising may be tried before the circuit court of the United States in any district in which any portion of said obstruction or dam touches." (Fed. Stats. Ann., 2d ed., title "Rivers, Harbors and Canals"; 10 U. S. Comp. Stats. 1916, 9980, p. 12,277.) 103. White Slave Traffic. 5, Act June 25, 1910, c. 395. "That any violation of any of the above sections two, three, and four shall be prosecuted in any court having jurisdiction of crimes within the district in which said violation was committed, or from, through, or into which any such woman or girl may have been carried or transported as a passenger in interstate or foreign com- merce, or in any territory, or the District of Columbia, con- trary to the provisions of any of said sections." (36 Stats. 826; Fed. Stats. Ann., 2d ed., title "White Slave Traffic"; 8 U. S. Comp. Stats. 1916, 8816.) 104. Appellate Jurisdiction Chinese Exclusion Laws. 25, Jud. Code (Draum from Act Sept. 13, 1888, c. 1013, 13). "The district courts shall have appellate jurisdiction of the judgments and orders of United States commissioners in cases arising under the Chinese exclusion laws." (4 Fed. Stats. Ann., 2d ed., p. 1063; 1 U. S. Comp. Stats. 1916, 1007; Foster's Federal Practice, 5th cd., pp. 20, 2414, 2418.) 105-107, Ch. 5 MANUAL OP FEDERAL PROCEDURE. 60 105. Appellate Jurisdiction Yellowstone National Park. 26, Jud. Code (Re-enacting Act May 7, 1894, c. 72). "The district court for the district of Wyoming shall have jurisdiction of all felonies committed within the Yellowstone National Park, and appellate jurisdiction of judgments in cases of conviction before the commissioner authorized to bo appointed under section five of an act entitled, 'An Act to Protect the Birds and Animals in Yellowstone National Park, and to Punish Crimes in Said Park, and for Other Pur- poses,' approved May seventh, eighteen hundred and ninety- four." (4 Fed. Stats. Ann., 2d ed., p. 1063; 1 U. S. Comp. Stats. 1916, 1008 ; Foster's Federal Practice, 5th ed., pp. 21, 263, 2420.) 106. Jurisdiction of Crimes on Indian Reservations South Dakota. 57, Jud. Code (Re-enacting Act Feb. 2, 1903, c. 351). "The district court of the United States for the district of South Dakota shall have jurisdiction to hear, try, and deter- mine 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 as- sault with a dangerous weapon, committed within the limits of any Indian reservation in the state of South Dakota." , (4 Fed. Stats. Ann., 2d ed., p. 1063; 1 U. S. Comp. Stats. 1916, 1009; Foster's Federal Practice, 5th ed., p. 21.) 107. Power to Enforce Foreign Consular Awards. 271, Jud. Code (Re-enacting 728, Rev. Stats.). "The district courts and the United States commissioners shall have power to carry into effect, according to the true intent and meaning thereof, the award or arbitration or decree of any consul, vice consul, or commercial agent of any foreign nation, made or rendered by virtue of authority conferred on him as such consul, vice consul, or commercial agent, to sit as judge or arbitrator in such differences as may arise between the cap- tains 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 com- 61 DISTRICT COURT'S JURISDICTION. Ch. 5, 108 mercial 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 en- force 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 authority of the United States, until such award, arbitration, or decree is complied with, or the parties are otherwise dis- charged therefrom, by the consent in writing of such consul, vice consul, or commercial agent, or his successor in office, or by the authority of the foreign government appointing such consul, vice consul, or commercial agent : Provided, how- ever, That the expenses of the said imprisonment and main- tenance 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 process, and do all other acts necessary and proper to carry into effect the premises under the authority of said courts and commissioners." (5 Fed. Stats. Ann., 2d ed., p. 1057; 2 U. S. Comp. Stats. 1916, 1248; Foster's Federal Practice, 5th ed., p. 20.) 108. Powers of Foreign Consuls Over Disputes Between Seamen. 4079, Rev, Stats. "Whenever it is stipulated by treaty or convention between the United States and any foreign nation that the consul general, consuls, vice consuls, or con- sular or commercial agents of each nation, shall have ex- clusive jurisdiction of controversies, difficulties, or disorders arising at sea or in the waters or ports of the other nation, be- tween the master or officers and any of the crew, or between any of the crew themselves, of any vessel belonging to the na- tion represented by such consular officer, such stipulations shall be executed and enforced within the jurisdiction of the United States as hereinafter declared. But before this sec- tion shall take effect as to the vessels of any particular nation having such treaty with the United States, the President shall be satisfied that similar provisions have been made for the execution of such treaty by the other contracting party, 109-110, Ch. 5 MANUAL OF FEDERAL PROCEDURE. 62 and shall issue his proclamation to that effect, declaring this section to be in force as to such nation." (3 Fed. Stats. Ann., 2d ed., p. 57 ; 7 U. S. Comp. Stats. 1916, 7629.) 109. Arrest of Seamen on Application of Consul. 4080, Rev. Stats. ' ' In all cases within the purview of the preceding section the consul general, consul, or other consular or commercial authority of such foreign nation charged with the appropriate duty in the particular case, may make application to any court of record of the United States, or to any judge thereof, or to any commissioner, of a circuit court, setting forth that such controversy, diffi- culty, or disorder has arisen, briefly stating the nature thereof, and when and where the same occurred, and ex- hibiting a certified copy or extract of the shipping articles, roll, or other proper paper of the vessel, to the effect that the person in question is of the crew or ship's company of such vessel ; and further stating and certifying that such per- son has withdrawn himself, or is believed to be about to with- draw himself, from the control and discipline of the master and officers of the vessel, or that he has refused, or is about to refuse, to submit to and obey the lawful jurisdiction of such consular or commercial authority in the premises; and further stating and certifying that, to the best of the knowl- edge, and belief of the officer certifying, such person is not a citizen of the United States. Such application shall be in writing and duly authenticated by the consular or other sufficient official seal. Thereupon such court, judge, or com- missioner shall issue his warrant for the arrest of the person so complained of, directed to the marshal of the United States for the appropriate district, or in his discretion to any person, being a citizen of the United States, whom he may specially depute for the purpose, requiring such person to be brought before him for examination at a certain time and place. " (3 Fed. Stats. Ann., 2d ed., p. 58 ; 7 U. S. Comp. Stats. 1916, 7630.) 110. Commitment and Discharge. 4081, Rev. Stats. "If, on such examination, it is made to appear that the person so arrested is a citizen of the United 63 DISTRICT COURT'S JURISDICTION. Ch. 5, 111 States, he shall be forthwith discharged from arrest, and shall be left to the ordinary course of law. But if this is not made to appear, and such court, judge, or commissioner finds, upon the papers hereinbefore referred to, a sufficient prima facie case that the matter concerns only the internal order and discipline of such foreign vessel, or, whether in its nature civil or criminal, does not affect directly the execu- tion of the laws of the United States, or the rights and duties of any citizen of the United States, he shall forthwith, by his warrant, commit such person to prison, where prisoners under sentence of a court of the United States may be law- fully committed, or, 'in his discretion, to the master or chief officer of such foreign vessel, to be subject to the lawful orders, control, and discipline of such master or chief officer, and to the jurisdiction- of the consular or commercial authority of the nation to which such vessel belongs, to the exclusion of any authority or jurisdiction in the premises of the United States or any state thereof. No person shall be detained more than two months after his arrest, but at the end of that time shall be set at liberty and shall not again be arrested for the same cause. The- expenses of the arrest and the detention of _the person so arrested shall be paid by the con- sular officers making the application." (3 Fed. Stats. Ann., 2d ed., p. 59; 7 U. S. Comp. Stats. 1916, 7631, p. 8143.) So much of section 4081 of the Revised Statutes as relates to the arrest or imprisonment of officers and seamen deserting or charged with desertion from merchant vessels of foreign na- tions in the United States and territories and possessions thereof, and for the co-operation, aid and protection of competent legal authorities in effecting such arrest or imprisonment, is repealed by 17, Act March 4, 1915, c. 153, U. S. Comp. Stats. 1916, 8382b, p. 8912. 111. Jurisdiction in Gases Transferred from Territorial Courts. 64, Jud. Code (Re-enacting substantially 569, Rev. Stats.). "When any territory is admitted as a state, and a district court is established therein, the said district court shall take cognizance of all cases which were pending and 112-114, Ch. 5 MANUAL OF FEDERAL PROCEDURE. 64 undetermined in the trial courts of such territory, from the judgments or decrees to be rendered in which writs of error could have been sued out or appeals taken to the Supreme Court or to the circuit court of appeals, and shall proceed to hear and determine the same." (5 Fed. Stats. Ann., 2d ed., p. 540; 1 U. S. Comp. Stats. 1916, 1046.) 112. Jurisdiction Under Reclamation Act. 5, Act August 9, 1912, c. 278. , "That jurisdiction of suits by the United States for the enforcement of the pro- visions of this act is hereby conferred on the United States district courts of the districts in which the lands are situated." (Fed. Stats. Ann., 2d ed., title "Waters"; 5 U. S. Comp. Stats. 1916, 4732.) The United States by injunction may restrain the diversion of Boater. (U. S. v. Union Gap Irr. Co., 209 Fed. 274.) 113. Jurisdiction Under Income Tax Law. 20, Act Sept. 8, 1916, 'c. 463. "That jurisdiction is hereby conferred on the district courts of the United States for the district within which any person summoned under this title to appear to testify or to produce books shall reside, to compel such attendance, production of books, and testi- mony by appropriate process. (Pamphlet Supp. Fed. Stats. Ann., 2d ed., title "Internal Revenue," No. 8, p. 97; 6 U. S. Comp. Stats. 1916, 6336s, p. 7359.) T14. Jurisdiction in Arbitration of Disputes Between Com- mon Carriers and Employees. Part 5, Act July 15, 1913, c. 6. Arbitrators under the above act "may invoke the aid of the United States courts to compel witnesses to attend and testify and to produce such books, papers, contracts, agreements, and documents to the same extent and under the same conditions and penalties r.s is provided for in the act to regulate commerce approved February fourth, 1887, and amendments thereto." (Fed. Stats. Ann., 2d ed., title "Labor"; 8 U. S. Comp. Stats. 1916, 8670.) 65 DISTRICT COURT'S JURISDICTION. Ch. 5, 114 8, Act July 15, 1913, c. 6. "That the award, being filed in the clerk's office of a district court of the United States as hereinbefore provided, shall go into practical operation, and judgment shall be entered thereon accordingly at the ex- piration of ten days from such filing, unless within ten days either party shall file exceptions thereto for matter of law apparent on the record, in which case said award shall go into practical operation, and judgment be entered accord- ingly, when such exceptions shall have been finally disposed of either by said district court or on appeal therefrom. At the expiration of ten days from the decision of the district court upon exceptions taken to said award as aforesaid judg- ment shall be entered in accordance with said decision, un- less during said ten days either party shall appeal there- from to the circuit court of appeals. In such case only such portion of the record shall be transmitted to the appellate court as is necessary to the proper understanding and con- sideration of questions of law presented by said exceptions and to be decided. The determination of the circuit court of appeals upon said questions shall be final, and, being certi- fied by the clerk thereof to the district court, judgment pur- suant thereto shall thereupon be entered by said district court. If exceptions to an award are finally sustained, judgment shall be entered setting aside the award in whole or in part; but in such case the parties may agree upon a judgment to be entered disposing of the subject-matter of the controversy, which judgment when entered shall have the same force and effect as judgment entered upon an award. Nothing in this act contained shall be construed to require an employee to render personal service without his consent, and no injunc- tion or other legal process shall be issued which shall compel the performance by any employee against his will of a contract for personal labor or service." (Fed. Stats. Ann., 2d ed., title "Labor"; 8 U. S. Comp. Stats. 1916,- 8673; Georgia etc. By. Co. v. Brotherhood, etc., 217 Fed. 755, 132 C. C. A. 559.) Mnn*l ft 120, Cil. 6 MANUAL OF iJ'KDEKAL i'iiOCED URB. b'G CHAPTER 6. FEDERAL QUESTIONS. SEC. 120. What is a Federal Question! 121. Arises in Suits With Federal Officers Involving Official Acts. 122. Arises in Suits With Federal Corporations Existing Under Federal Laws. 123. Exception Suits With National Banks Other Than by or Against Of- ficers of the United States. 124. Arising Under the Constitution. 125. As a Ground of Original Jurisdiction. 126. As a Ground for Removal. 127. Citizenship not Material in Suits Involving a Federal Question Ex- cept When Affecting Venue. 128. Amount Required to be in Controversy. 129. Question must Appear on the Face of the Bill in the Federal Court. 130. How Questions must Appear in a State Court to be Removed to Federal Court. 131. Plea of Res Adjudicata as Raising a Federal Question. 132. Raising the Issue as to Federal Question. 120. What is a Federal Question? A federal question is one arising under the constitution or a law of the United States or treaties made, whenever the correct decision of the suit de- pends upon the construction of either, or when the title or right set up by the party may be defeated by one construction or sustained by the opposite construction. 1 A federal question does not arise merely because it becomes necessary in the progress of the litigation to construe the federal constitution, laws or treaties. 2 1 Cohens v. Virginia, 6 Wheat. (U. S.) 379, 5 L. Ed. 285; Osborn v. Bank of United States, 9 Wheat. (U. S.) 822, 6 L. Ed. 224; Oregon v. Three Sisters Irr. Co., 158 Fed. 346; Hall v. Chicago etc. R. R. Co., 149 Fed. 564. 2 Miller v. Illinois Central R. Co., 168 Fed. 982; Leggett v. Great North- ern R. Co., 180 Fed. 314. 67 FEDERAL QUESTIONS. Ch. 6, 121 121. Arises in Suits With Federal Officers Involving Offi- cial Acts. Part 24, Jud. Code. ' ' The district court shall have origi- nal jurisdiction as follows: "First. Of all suits of a civjl nature, at common law or in equity, brought by the United States, or by an officer thereof authorized by law to sue. ..." (Quoted above in full, 94.) Suits brought by federal officers find their authority in this sec- tion and preceding provisions of the law of like character. Suits against federal officers stand on a different footing and are dis- cussed hereafter. A receiver of a national bank appointed by a comptroller of currency comes within this clause, and may sue without regard to the citizenship of the parties or the amount in- volved. 3 So, also, an agent of a national bank who has displaced a receiver comes under the rule, 4 and a postmaster-general suing under the official bond of a postmaster. 5 Suits against United States officers do not come under the above- quoted provision, 6 but are held to arise under the laws of the United States as necessarily involving the construction thereof. "An action against a United States marshal and his deputy, growing out of their acts in executing the process of a court of the United States, is, regardless of citizenship of the parties, within the jurisdiction of the United States circuit (now district) court for the proper district; and this is so even where there is no dis- puted question of federal law in the case." 7 "A case in which an attack upon the official acts of a United States marshal is made covertly, by suppressing the facts which constitute an essential part of the res gestae in the first pleading, is none the less a case arising under the laws of the United States. ' ' 8 3 Gibson v. Peters, 150 U. S. 342, 37 L. Ed. 1104, 14 Sup. Ct. 134; Scho- field v. Palmer, 134 Fed. 753; Murray v. Chambers, 151 Fed. 142. * McConville v. Oilmour, 36 Fed. 277, 1 L. R. A. 498. " Postmaster-General v. Early, 12 Wheat. (U. S.) 136, 6 L. Ed. 577; Postmaster-General v. Furber. 4 Mason, 333, 19 Fed. Gas. No. 11,308. Hallam v. Tillinghast, 75 Fed. 849. 7 Wood v. Drake, 70 Fed. 882, citing Bock v. Perkins, 139 U. S. 628, 35 L. Ed. 314, 11 Sup. Ct. 677; Grant v. Spokane Nat. Bank, 47 Fed. 673. Ibid. 121, Ch. 6 MANUAL OP FEDERAL PROCEDURE. 68 "The national government must be permitted to exercise its power within the states through its own agencies. The national courts are the proper tribunals for adjudicating of questions as to the validity of their own process, and the lawfulness of the acts of their own ministers in executing the same. ' ' 9 The following are illustrations of suits by and against federal officers held to involve federal question by reason of the character of the party : Action against executors and heirs of an internal revenue col- lector to recover taxes alleged to have been illegally collected by such collector ; 10 a suit upon a bond of the clerk of the circuit court ; u on bond of a marshal ; 12 to recover damages for wrongful levy by marshal; 13 suit on government contractor's bond. 14 Special provision is made for removal of cases against a United States officer acting under the civil rights laws. Part 31, Jud. Code 15 (Re-enacting 641, Rev. Stats.}. "When any civil suit or criminal prosecution is commenced in any state court, for any cause whatsoever, . . . against any officer, civil or military, or other person, for any arrest or im- prisonment or other trespasses or wrongs made or committed by virtue of or under color of authority derived from any law providing for equal rights as aforesaid, or 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 de- fendant, filed in said state court at any time before the trial or final hearing of the cause stating the facts and verified by oath, be removed for trial into the next district court to be heard in the district where it is pending. ..." (Quoted in full infra, 207.) Wood v. Drake, 70 Fed. 881-883, and cases cited. 10 Sinking Fund Commissioners v. Buckner, 48 Fed. 533; see, also, Orner v. Saunders, 3 Dill. 284, 18 Fed. Cas. No. 10,584. 11 Howard v. United States, 184 U. S. 681, 46 L. Ed. 754, 22 Sup. Ct. 543. 12 Feibelman v. Packard, 109 U. S. 421, 27 L. Ed. 984, 3 Sup. Ct. 289. 13 Hurst v. Cobb, 61 Fed. 1. But see McKee v. Bains, 10 Wall. (U. S.) 22, 19 L. Ed. 860, where a suit against a marshal for trespass in levying on goods for a third party, held not to involve a Federal question. 14 Mullin v. United States, 109 Fed. 817, 48 C. C. A. 677. 15 Constitutional, Ex parte Virginia, 100 U. S. 339, 25 L. Ed. 676; Strauder v. West Virginia, 100 U. S. 310, 25 L. Ed. 667; California v. Chue Fan, 42 Fed. 865. 69 FEDERAL QUESTIONS. Ch. 6, 122 Federal receivers. It was formerly held that a federal question arose in the case of receivers appointed by federal courts by virtue of a federal appointment. But it is now held that such appointment does not raise a federal question so as to allow removal to a fed- eral court on that ground. 16 66, Jud. Code, permits a federal receiver to be sued without previous leave of the court in respect to any act or transaction of his in carrying on the business connected with the property. (Quoted in full infra, 1083.) 122. Arises in Suits With Federal Corporations Existing Under Federal Laws. A federal corporation is organized un- der and depends upon a federal law. It is held that a suit against a federal corporation therefore involves a federal question irre- spective of the citizenship of the parties or any other law involved. If a complaint filed in the state court shows on its face that the defendant corporation is one organized under federal laws, ex- cept in cases of national banks, 17 the suit may be removed to the federal court as presenting a federal question. 18 It has even been held that the suit is removable, though there is nothing in the plaintiff's pleading showing that defendant is a fed- eral corporation. 19 But a different holding appears in Oregon Short Line etc. R. Co. v. Skottowe, 162 U. S. 490, 40 L. Ed. 1048, 16 Sup. Ct. 869. 5 and 6, Act of Jan. 28, 1915, c. 22. " 5. (Jurisdic- tion of United States Courts Action by or against railroad.) No court of the United States shall have jurisdiction of any action or suit by or against any railroad company upon the 16 Pope v. Louisville etc. B. Co., 173 U. S. 573, 43 L. Ed. 814, 19 Sup. Ct. 500; Dale v. Smith. 182 Fed. 360; People v. Bleecker St. etc. R. Co., 178 Fed. 156; Pepper v. Rogers, 128 Fed. 987; Rural Home Telephone Co. v. Powers, 176 Fed. 986. n 123, post. 18 Pacific Railroad Removal Cases, 115 U. S. 1, 29 L. Ed. 319, 5 Sup. Ct. 1113. 19 Texas etc. R. Co. v. Cody, 166 U. S. 606, 41 L. Ed. 1132, 17 Sup. Ct. 703; Supreme Lodge, etc. v. Wilson, 66 Fed. 785, 14 C. C. A. 264; Sullivan v. Barnard, 81 Fed. 886; Pitkin v. Cowen, 91 Fed. 599; Gold Washing & Water Co. v. Keyes, 96 U. S. 199, 24 L. Ed. 656. 123, Ch. 6 MANUAL OP FEDERAL PROCEDURE. 70 ground that said railroad company was incorporated under an Act of Congress." (38 Stats. 804; 6 Fed. Stats. Ann., 2d ed., title "Judiciary"; 2 U. S. Comp. Stats. 1916, 1233a, p. 1889.) 6. (Effect of Act Pending cases Amendment or re- peal of existing acts.) That this Act shall not affect cases now pending in the Supreme Court of the United States or cases in which writs of error or appeals have been allowed at the date of its approval. And nothing in this Act shall be deemed to repeal, amend, or modify the provisions of an Act entitled 'An Act providing for writs of error in certain in- stances in criminal cases,' approved March second, nineteen hundred and seven." (38 Stats. 804; 6 Fed. Stats. Ann., 2d ed., title " Judiciary "j 3 U. S. Comp. Stats. 1916, 1704a, p. 3567.) 123. Exception Suits With National Banks Other Than by or Against Officers of the United States. Subd. 16, 24. "Of all cases commenced by the United States, or by direction of any officer thereof, against any national banking association, and cases for winding up the affairs of any such bank; and of all suits brought by any banking association established in the district for which the court is held, under the provisions of title 'National Banks,' 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 11 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." (Quoted above in full 94.) The latter part of this section places national banks on the same footing as individuals of other corporations with respect to the right to sue and be sued in the federal courts. There must be either diversity of citizenship, or a federal question otherwise in- volved, to permit suits by or against national banks under this provision. 20 20 American National Bank v. Tappan, 174 Fed. 431; State Nat. Bank v Eureka Springs Water Co., 174 Fed. 827; Continental Nat. Bank v. Buford, 191 U. S. 123, 48 L. Ed. 119, 24 Sup. Ct. 54. 71 FEDERAL QUESTION'S. Ch. 6, 124-125 124. Arising Under the Constitution. Questions too numer- ous to discuss in this work arise under the federal constitution. Art. 1, 10, U. S. Const. "No state shall . . . pass any . . . law impairing the obligation of contracts. ..." (11 U. S. Comp. Stats. 1916, p. 13,549.) Art. 4, 1, U. S. Const. "Full faith and credit shall be given in each state to the public acts, records, and judicial pro- ceedings of every state. ..." (11 U. S. Comp. Stats. 1916. p. 14,121.) . Art. 4, 2, cl. 1, U. S. Const. "The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states." (11 U. S. Comp. Stats. 1916, p. 14,208.) 14th Amendment, pt. 1, U. 8. Const. "... no state shnll make or enforce any law which shall abridge the privileges or immunities of citizens of the United States ; nor shall any state deprive any person of life, liberty, or property without due process of law; nor deny to any person within its juris- diction the equal protection of the laws." (11 U. S. Comp. Stats. 1916, p. 14,441.) 15th Amendment, 1, U. 8. Const. "The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude." (11 U. S. Comp. Stats. 1916, p. 14,977.) 125. As a Ground of Original Jurisdiction. Art. 3,1, cl. 1, U. 8. Const. "The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior court as Congress may from time to time ordain and establish. ..." (11 U. S. Comp. Stats. 1916, p. 13,906.) Art. 3, 5, cl. 1, U. S. Const. "The judicial powers ?hall extend to all cases in law and equity, arising under this Con- stitution, the laws of the United States, and treaties made, or which shall be made, under their authority; ..." (11 U. S. Comp. Stats. 1916, p. 14,015.) Under the foregoing provisions of the United States constitu- tion, Congress establishes the United States district courts as the 126, Ch. 6 MANUAL OF FEDERAL PROCEDURE. 72 courts of original jurisdiction with certain limitations as to grounds of jurisdiction and as to the amount in controversy. One of those grounds of jurisdiction is the existence of a federal question. Part 24, Jud. Code. "The district courts have original jurisdiction as follows: First. "... where the matter in controversy exceeds, exclusive of interest and costs, the sum or value of $3,000, and (a) arises under the Constitution or laws of the United States, or treaties made, or which shall be made, under their author- ity, . . . Provided, however, That the foregoing provision as to the sum or value of the matter in controversy shall not be construed to apply to any of the cases mentioned in the suc- ceeding paragraphs of this section. ..." (Quoted above in full, 94.) 126. As a Ground for Removal. Under the constitutional provision quoted in the preceding section, Congress has power to provide for the removal of suits from state courts to the federal courts when such courts have original or appellate jurisdiction in such suits. 21 The jurisdiction on removal depends upon the original jurisdic- tion in the district court, and therefore separate consideration is unnecessary, except in so far as the general subject of removal is treated in chapter 9, entitled, "Removal of Causes Jurisdiction and Procedure." It should be noted, however, that under the last part of 28, Jud. Code, actions based on federal "employers' liability law" are not removable, although the district courts have original jurisdiction concurrent with that of the state courts in that kind of action. Part 28, Jud. Code 22 (Re-enacting 25 Stats. 434). "Any suit of a civil nature, at law or in equity, arising under the 21 Mayor etc. of Nashville v. Cooper, 6 Wall. (U. S.) 247, 18 L. Ed. 851. 22 Foulk v. Gray, 120 Fed. 156; Smith v. Lyon, 133 U. S. 315, 33 L. Ed. 635, 10 Sup. Ct. 303; In re Pennsylvania Co., 137 U. S. 457, 34 L. Ed. 741, 11 Sup. Ct. 143; Hanrick v. Hanrick, 153 U. S. 192, 38 L. Ed. 685, 14 Sup. Ct. 835; In re Cilley, 58 Fed. 977; Gumbel v. Pitkin, 124 U. S. 131, 31 L. Ed. 374, 8 Sup. Ct. 379. 73 FEDERAL QUESTIONS. Ch. 6, 127 Constitution or laws of the United States, or treaties made, or which shall be made, under their authority, of which the district courts of the United States were given original juris- diction by this title, which may now be pending or which may hereafter be brought, in any state court, may be removed by the defendant or defendants therein to the district court of the United States for the proper district. ..." (See 204, post.) Added part 28, Jud. Code, by Amendment Act January 20, 1914, c. 11. "And provided further, That no suit brought in any State court of competent jurisdiction against a rail- road company, or other corporation, or person, engaged in and carrying on the business of a common carrier, to recover damages for delay, loss of, or injury to property received for transportation by such common carrier under section twenty of the Act to regulate commerce, approved February fourth, eighteen hundred and eighty-seven, as amended June twenty- ninth, nineteen hundred and six, April thirteenth, nineteen hundred and eight, February twenty-fifth, nineteen hundred and nine, and June eighteenth, nineteen hundred and ten, shall be removed to any court of the United States where the matter in controversy does not exceed, exclusive of interest and costs, the sum or value of $3,000." 127. Citizenship not Material in Suits Involving- a Federal Question Except When Affecting- Venue. The existence of a federal question is sufficient to sustain jurisdiction of the federal court independent of citizenship, provided the requisite amount or value is involved and the venue properly laid. Suits at law or in equity, Western Union Teleg. Co. v. Louisville & N. R. Co., 201 Fed. 932; In re Silvies River, 199 Fed. 495 Constitution, laws, or treaties, Anaconda Copper Mining Co. v. Butte- Balaklava Copper Co., 200 Fed. 808. As to nonresidents, see Wind River Lumber Co. v. Frankfort Marine Accident & Plate Glass Ins. Co., 196 Fed. 340, 116 C. C. A. 160. As to separable controversy, In re Silvies River, 199 Fed. 495. Diverse citizenship, Anaconda Copper Mining Co. v. Butte-Balaklava Cop- per Co., 200 Fed. 808. Remanding, Rice v. Boston & M. R. R., 203 Fed. 580. 128, Ch. 6 MANUAL OP FEDERAL PROCEDURE. 74 Citizens of the same state may sue each other in the federal courts if a federal question is involved. 23 Equity Rule 25 requires the citizenship and residence of each party to be set out in the bill. In suits based on a federal ques- tion the citizenship and residence of the parties is immaterial ex- cept in transitory actions where the residence of the defendant fixes the venue of the action under 51, Jud. Code. The requirements of the rule as to citizenship and residence in suits based on a federal question are chiefly for the sake of uni- formity and to identify the parties. In such suits of a local nature, citizenship and residence of any of the parties are other- wise immaterial. If the basis of the federal court's jurisdiction is diverse citi- zenship as well as a federal question, necessarily a proper showing of citizenship is essential. 128. Amount Required to be in Controversy. (See chapter 8, post.) In that part of 24, Jud. Code, quoted in 125 above, it will be noted that, in cases based on a federal question, the mat- ter in controversy, exclusive of interest and costs, must exceed the sum or value of $3,000, except in certain cases arising under fed- eral laws enumerated in subdivisions second to twenty-five of that section, or if brought by the United States, or its officers. To make diverse citizenship the ground of jurisdiction, the amount in controversy must always exceed $3,000, exclusive of interest and costs. Where less than such amount is involved diverse citizenship is not material; there must be a federal question on which to base jurisdiction. As the jurisdiction on removal depends on the original juris- diction conferred on the district court, the amount required to be 23 San Joaquin etc. River Canal Co. v. Stanislaus Cdunty, 90 Fed. 516, 520; Lund v. Chicago etc. E. Co., 78 Fed. 385; Jewett v. Whitcomb, 69 Fed. 417; United States Express Co. v. Allen, 39 Fed. 712; Ames v. Kansas, 111 U. S. 449, 28 L. Ed. 482, 4 Sup. Ct. 437; Owings v. Norwood, 5 Cranch (U. S.), 344, 3 L. Ed. 120; Fatten v. Brady, 184 II. S. 611, 46 L. Ed. 715, 22 Sup. Ct. 493. 75 FEDERAL QUESTIONS. Ch. 6, 129-130 in controversy on removal is the same as that necessary to sustain the case if originally brought in the federal court. 129. Question must Appear on the Face of the Bill in the Federal Court. To entitle a plaintiff to bring a suit originally in the United States district court, the federal question must appear on the face of his bill as a part of his cause of action. 24 It must be real, and not colorable merely. 25 It must be essential to his cause of action, and not merely in anticipation of a defense based on that ground. 26 130. How Question must Appear in a State Court to be Re- moved to Federal Court. To entitle a defendant to remove a case from the state court to the United States district court, the federal question must appear on the face of the initial pleading in the state court. The defendant cannot, in his petition for re- moval, set up the facts supplementing plaintiff's pleading so as to show a federal question. 27 The defendant, however, is not precluded in such a case from obtaining the determination of a federal court as to a federal question involved in the suit, for if the plaintiff's pleading does not show such question, the defendant may, nevertheless, set up the federal question in his own pleading, and thus preserve the right of review by the supreme court of the United States on writ of error. This subject is treated more in detail in chapter 74, entitled "Writ of Error to State Court of Last Resort." 24 Citj B. Co. v. Citizens' Street B. Co., 166 U. S. 557, 41 L. Ed. 1114, 17 Sup. Ct. 653; St. Paul M. & M. B. Co. v. St. Paul & N. P. B. Co., 68 Fed. 2, 15 C. C. A. 167; New Orleans v. New Orleans Water Works, 142 U. S. 79, 35 L. Ed. 943, 12 Sup. Ct. 142; Hamblin v. Western Land Co., 147 U. S. 532, 37 L. Ed. 267, 13 Sup. Ct. 353; St. Louis etc. B. Co. v. State of Missouri, 156 U. S. 478, 39 L. Ed. 502, 15 Sup. Ct. 443. 25, Tennessee v. Union & Planters' Bank, 152 U. S. 454, 38 L. Ed. 511, 14 Sup. Ct. 654. 20 Florida Central B. Co. v. Bell, 176 U. S. 321, 44 L. Ed. 4S6, 20 Sup. Ct. 399. 27 Tennessee v. Union & Planters' Bank, 152 U. S. 454, 38 L. Ed. 511, 14 Sup. Ct. 654; Chappell v. Waterworth, 155 F. S. 102, 39 L. Ed. 85, 15 Sup. Ct. 34; Wlalker v. Collins, 50 Fed. 737, 1 C. C. A. 642, 59 Fed. 70, 8 C. C. A. 1, reversed in Walker v. Collins, 167 U. S. 58, 42 L. Ed. 76, 17 Sup. Ct. 738; Mayo v. Dockery, 108 Fed. 897. 131, Ch. 6 MANUAL OP FEDERAL PROCEDURE. 76 131. Plea of Res Adjudicata as Raising* a Federal Question. "Where a state court refuses to give effect to the judgment of a court of the United States rendered upon the point in dispute, and with jurisdiction of the case and the parties, a question is un- doubtedly raised which, under the act of 1867 (now 237, Jud. Code), may be brought to this court for revision. The case would be one in which a title or right is claimed under an author- ity exercised under the United States, and the decision is against the title or right so set up. It would thus be a case arising under the laws of the United States, establishing the circuit court (now district court), and vesting it with jurisdiction; and hence it would be within the judicial power of the United States, as de- fined by the constitution; and it is clearly within the chart of appellate power given to this court, over cases arising in and decided by the state courts. "The refusal by the courts of one state to give effect to the de- cisions of the courts of another state is an infringement of a dif- ferent article of the constitution, to wit, the first section of article four; and the right to bring such a case before us by writ of error under the twenty-fifth section of the Judiciary Act, or the act of 1867 (now 237, Jud. Code), is based on the refusal of the state court to give validity and effect to the right claimed under that article and section. "In either case, therefore, whether the validity or due effect of a judgment of the state court, or that of a judgment of a United States court, is disallowed by a state court, the constitu- tion and laws furnish redress by a final appeal to this court." 28 28 Dupasseur v. Eochereau, 68 U. S. 134, 135; Des Moines Nav. & E. Co. v. Iowa Homestead Co., 123 U. S. 555, 556, 31 L. Ed. 202, 8 Sup. Ct. 217; National Foundry & Pipe Works v. Oconto Water Supply Co., 183 U. S. 233, 234, 46 L. Ed. 157, 22 Sup. Ct. Ill; Pittsburg etc. E. Co. v. Long Island Loan & Trust Co., 172 U. S. 507, 43 L. Ed. 528, 19 Sup. Ct. 238; Phoenix Fire etc. Ins. Co. v. Tennessee, 161 U. S. 185, 40 L. Ed. 66(5, 16 Sup. Ct. 471; Mutual Life Ins. Co. v. McGrew, 188 U. S. 311, 63 L. R. A. 33, 47 L. Ed. 480, 23 Sup. Ct. 375; Embry v. Palmer, 107 U. S. 8, 9, 27 L. Ed. 346, 2 Sup. Ct. 25; Crescent City Livestock Co. v. Butchers' Union Slaughter-house, 120 U. S. 141, 30 L. Ed. 614, 7 Sup. Ct. 472. 77 FEDERAL QUESTIONS. Ch. 6, 132 132. Raising 1 the Issue as to Federal Question. The want of a federal question, being a matter of jurisdiction, may be raised under Equity Rule 29, either by a motion to dismiss or in the answer and separately heard, and in an action at law by the appropriate defensive pleading provided for raising jurisdictional questions in the state court, generally by demurrer if the defect appears on the face of the complaint, or by plea or answer if it does not so appear. In case of removal the objection would be made in a motion to remand. In the event that a federal ques- tion is properly pleaded, but is fraudulently made for the pur- pose of giving jurisdiction when no actual federal question is involved that should be set up in the answer under Equity Rule 29 in some such form as follows : Defendant further answering alleges that this suit does not really and substantially involve a controversy within the jurisdiction of this court in that this suit is wholly based on the alleged existence of a federal question; that the allegations .in plaintiff's complaint that this suit is dependent [here state allegations mentioned in complaint as ground of federal juris- diction], are not made truly and in good faith but are stated with a false and fraudulent purpose of imposing upon the jurisdiction of this court and are therefore fictitious and fraudulent. Wherefore defendant prays that the suit be dismissed [or remanded] with costs. 140, Ch. 7 KANUAL OF FEDERAL PROCEDURE. 78 CHAPTER 7. DIVERSE CITIZENSHIP. SEC. 140. In General. 141. What is Citizenship? 142. Territorial and District of Columbia Citizens are not Included. 143. States and Territories are not Citizens. 144. Corporations. 145. Joint Stock Companies. 146. Partnerships. 147. National Banks. 148. Married Women. 149. Personal Representatives. 150. Trustees. 151. Guardians. 152. Aliens. 153. Indians. 154. Term. "Citizen" Collective. 155. Change of Domicile After Suit Commenced. 156. Change of Citizenship or Transfer of Subject Matter to Give Juris- diction. 157. Shifting Parties to Create Diversity. 158. Venue as Affecting Jurisdiction Based on Diverse Citizenship. 159. Issue of Citizenship How Raised. 160. When Want of Diversity Appears on the Trial. 161. Amendment to Show Diversity. 140. In General. Part 24, Jud. Code. "The district courts shall have original jurisdiction as follows : "First. Of all suits of a civil nature, at common law or in equity, . . . where the matter in controversy exceeds, ex- clusive of interest and costs, the sum "or value of three thou- sand dollars and ... (b) is between citizens of different states, or (c) is between citizens of a state and foreign states, citizens or subjects. ..." Part 51, Jud. Code. "... 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 79 DIVERSE CITIZENSHIP. Ch. 7, 141 of the residence of either the plaintiff or the defendant." (supra, 61.) It will be seen from the above quotations that in suits based on diversity of citizenship that (1) the matter in controversy must exceed, exclusive of interest and costs, the sum or value of three thousand dollars; (2) that the controversy must be between citizens of different states or between citizens of a state and foreign states, citizens, or subjects; and (3) that, where the fact that the action is between citizens of different states is the sole ground of juris- diction, the action should be brought in the district of the residence of either the plaintiff or the defendant. The existence of a federal question in these cases is immaterial except as bearing on the question of venue, which in actions not local should be in the district of the residence of "defendant where both grounds of jurisdiction exist. Where there is a federal question of such character that the amount in controversy is not material and the suit involves less than three thousand dollars, then the fact that there is a diversity of citizenship is immaterial because the amount in controversy will not support diversity of citizenship as a ground of federal jurisdiction. "Where diversity of citizenship is a sole ground of jurisdiction, the existence of a proper diversity and a proper amount in con- troversy are jurisdictional, and cannot be waived. The matter of venue is not jurisdictional in the same sense, but may defeat the action if timely objection be made by the opposing party. 141. What is Citizenship? Citizenship is residence within a particular state with a bona fide intention that such residence shall be permanent. The residence and intention together constitute what is known as domicile. 1 Accordingly the mere averment of residence, which may be transient or with the expectation of not l Butler v. Farnsworth, 4 Wash. 101, 4 Fed. Gas. No. 2240; Morris v. Gilmor, 129 U. S. 315, 32 L. Ed. 690. 9 Snp. Ct. 289; Mitchell v. United States, 21 Wall. (U. S.) 350, 22 L. Ed. 58 1 ; Marks v. Marks, 75 Fed. 324; Doyle v. Clark, 1 Flipp. 536, 7 Fed. Gas. No. 4053. 142, Ch. 7 MANUAL OF FEDERAL PROCEDURE. 80 remaining, is not the equivalent of the averment of citizenship for the purpose of supporting jurisdiction in the federal court. 2 This ruling has been held to be unaffected by the definition of citizenship as contained in the fourteenth amendment of the con- stitution of the United States, wherein it is declared that ' ' all per- sons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. 3 142. Territorial and District of Columbia Citizens are not Included. The citizenship must be of that kind that identifies itself with a particular state. To be a citizen of the United States, and not of some state, is not enough. 4 Territorial and District of Columbia citizens are not citizens of a state, so as to base federal jurisdiction on the ground of diverse citizenship. 5 Thus a citizen and resident of Indian territory against a citizen of a state 6 and an action between state citizens and citizens of Porto Rico do not present a diversity of citizenship. 7 On the ground of diverse citizenship the citizen of a territory cannot sue a citizen of a state in the federal courts and vice versa, 6 nor can a citizen of the District of Columbia sue a citizen of a state in the federal courts. 9 2 Home v. George H. Hammond Co., 155 U. S. 393, 39 L. Ed. 197, 15 Sup. Ct. 167; Wolfe r. Hartford Life etc. Ins. Co., 145 U. S. 389, 37 L. Ed. 493, 13 Sup. Ct. 602; Menard v. Goggan, 121 U. S. 253, 30 L. Ed. 914, 7 Sup. Ct. 873; Everhart v. Huntsville Female College, 120 U. S. 223, 30 L. Ed. 623, 7 Sup. Ct. 555; Grace v. American Cent. Ins. Co., 109 U. S. 278, 27 L. Ed. 932, 3 Sup. Ct. 207; Brown v. Keene, 8 Pet. (U. S.) 112, 8 L. Ed. 885; Turner v. Bank of North America, 4 Dall. (U. S.) 8, 1 L. Ed. 718. 3 Marks v. Marks, 75 Fed. 324; Shaw v. Quincy Min. Co., 145 U. S. 444, 36 L. Ed. 768, 12 Sup. Ct. 935; Anderson v. Watt, 138 U. S. 694, 34 L. Ed. 1078, 11 Sup. Ct. 449. 4 Prentiss v. Brennan, 2 Blatchf. 162, 19 Fed. Gas. No. 11,385. 5 Johnson v. Bunker Hill etc. Co., 46 Fed. 417; Hooe v. Jamieson, 166 U. S. 395, 41 L. Ed, 1049, 17 Sup. Ct. 596; 4 Fed. Stats. Ann., 2d ed., p. 943. 6 Kansas City S. R. Co. v. McGinty, 76 Ark. 356, 88 S. W. 1001. 7 Healy v. McCormick, 157 Fed. 318. 8 Johnson v. Bunker Hill etc. Co., 46 Fed. 417. Seddon v. Virginia etc. Co., 36 Fed. 8, 1 L. R. A. 108; Hepburn v. Ellzey, 2 Cranch (U. S.), 445, 2 L. Ed. 332; New Orleans v. Winter, 1 Wheat. (U. S.) 91, 4 L. Ed. 44. 81 DIVERSE CITIZENSHIP. Ch. 7, 143-144 143. States and Territories are not Citizens. "A state is not a citizen of any state, and, under the judiciary acts of the United States, it is firmly settled that a suit between a state and a citizen or corporation of another state is not between citizens of different states; and that in such cases the circuit courts (now district courts) of the United States have no jurisdiction of it unless it arises under the constitution, laws, or treaties of the United States." 10 The District of Columbia and the territories have been held not citizens so as to create diversity of citizenship. 11 144. Corporations. Corporations, though artificial persons, are treated for the purpose of determining diverse citizenship as citizens of the state under which they are created. 12 A corporation does not become a citizen of another state than that of its incorporation by transacting business and having an office therein, or agreeing as a condition of being permitted to transact business in such other state that it may be sued therein. 18 Where a corporation is incorporated in two states, it is a citizen of both states for jurisdictional purposes. 14 Corporations of different states consolidated in each of the states is a citizen of each. 15 10 State v. Indiana, etc. r. Alloghany Oil Co., 85 Fed. 870. Sec, also, Ames v. Kansas, 111 U. S. 449, 28 L. Ed. 4S2, 4 Sup. Ct. 437; Germania Ins. Co. v. Wisconsin, 119 U. S. 473, 30 L. Ed. 461, 7 Sup. Ct. 260; Postal Tel. Cable Co. v. Alabama, 155 U. S. 482, 39 L. Ed. 231, 15 Sup. Ct. 192; State v. Tolleston Club, 53 Fed. 18; Ayer etc. Tie Co. v. Kentucky, 202 U. S. 409, 6 Ann. Cas. 205, 50 L. Ed. 1082, 26 Sup. Ct. 679; O'Conor v. Texas, 202 U. S. 501, 50 L. Ed. 1120, 26 Sup. Ct. 720; Southern R. Co. v. St:ih>. I'M Ind. 613, 75 N. E. 272; Darnell v. State, 174 Ind. 143, 90 N. E. 769; Ex parte Nebraska, 209 U. S. 436, 52 L. Ed. 876, 28 Sup. Ct. 581. 11 Johnson v. Bunker Hill etc. Co., 46 Fed. 417; Maxwell v. Federal Gold & Copper Co., 155 Fed. 110, 83 C. C. A. 570. 12 Barrow Steamship Co. v. Kane, 170 U. S. 100, 42 L. Ed. 964, 18 Sup. Ct. 526. 13 Baltimore etc. R. Co. v. Koontz, 104 U. S. 5, 26 L. Ed. 643; Philadel- phia etc. R. Co. v. Quigley, 21 How. (U. S.) 202, 16 L. Ed. 73. 14 Memphis etc. R. Co. v. Alabama, 107 U. S. 581, 27 I* Ed. 518, 2 Sup. Ct. 432. 15 Baldwin v. Chicago etc. R. Co., 86 Fed. 187. Manual 6 144, Ch. 7 MANUAL OP FEDERAL PROCEDURE. 82 A municipal corporation is a citizen of the state creating it the same as a private corporation. 16 Because a corporation is a citizen of the state wherein it is in- corporated, the allegation of citizenship may read: " Company, a corporation, organized and existing under the laws of the state of , with its principal place of business in the county of , said state." It has been held that the following statements were sufficient on which to base diverse citizenship: " Foreign corporation formed under and created by the laws of the state of New York." 17 "A corporation organized and domiciled in the state of New York." 18 "A body corporate by an act of the general assembly of Maryland." 19 "A body corporate in the state of Maryland incorporated by a law of the general assembly of Maryland. ' ' 20 "The Covington Drawbridge Company of Covington is a corporation of the state of Indiana. ' ' 21 "Organized under and pursuant to the laws of the state of New Jersey." 22 The following averments were held insufficient: "A body politic in the law of and doing business in the , state of California." 23 1 Ysleta v. Canada, 87 Fed. 6; Cowles v. Mercer County. 7 Wall. (U. S.) 121, 19 L. Ed. 87. 17 United States Express Co. v. Kountze, 8 Wall. (U. 8.) 342, 19 L. Ed. 457. 18 Ward v. Blake Mfg. Co., 56 Fed. 437, 5 C. C. A. 538. 19 Marshall v. Baltimore etc. E. Co., 16 How. (U. S.) 314, 14 L. Ed. 953. 20 Covington Draw Bridge Co. v. Shepherd, 21 How. (U. S.) 112, 16 L. Ed. 38; Philadelphia etc. B. Co. v. Quigley, 21 How. (U. S.) 202, 16 L. Ed. 73. 21 Covington Draw Bridge Co. v. Shepherd, 21 How. (U. S.) 112, 16 L. Ed. 38. 22 Block v. Standard Distilling etc. Co., 95 Fed. 978. 23 Pennsylvania v. Quicksilver Co v 10. Wall. (U. S.) 553, 19 L. Ed. 998. 83 DIVERSE CITIZENSHIP. Ch. 7, 145 "A corporation duly established by law and having its prin- cipal place of business at Boston, in the state of Massachu- setts." 24 "Doing business in the state of Iowa." 28 A corporation organized under the laws of a foreign country is an alien. 28 In Robertson v. Scottish Union etc. Ins. Co., 68 Fed. 173, the court held that the allegation in a petition for removal of a cause to a federal court, that the defendant is "a company duly char- tered and incorporated under the laws of Great Britain," is a sufficient statement of the citizenship of such defendant to give the federal court jurisdiction. In Dundee Mortgage etc. Investment Co. v. School District, 21 Fed. 151, held that an allegation that plaintiff is a foreign corporation duly incorporated under the laws of Great Britain, in legal effect is the same as saying that it is a subject of Great Britain, and is sufficient. 145. Joint Stock Companies. Joint stock companies partake both of the nature of partnerships and of corporations, and ac- cordingly there has been a conflict of opinion as to whether the rule governing partnerships, or the rule governing corporations, should apply to these companies. It is now held that joint stock companies do not come under the rule governing corporations, but that the citizenship of the company depends upon the citizenship of the members. 27 An allegation that certain company was "a joint stock company organized under and by virtue of a law of the state of New York, and which said company is authorized by the laws of the state of New York to maintain and bring suits in the name of its president, for or on account of any right of action accruing to said company, and a citizen of the state of New York, ' ' 24 New York etc. B. Co. v. Hyde, 56 Fed. 188, 5 C. C. A. 461. 25 Brock v. Northwestern Fuel Co., 130 U. S. 342, 32 L. Ed. 905, 9 Sup. Ct. 552. 26 Baltimore etc. R. Co. v. Koontz, 104 U. S. 5, 26 L. Ed. 643; National Steamship Co. v. Tugman, 106 U. S. IIS. 27 K Ed. 87, 1 Sup. Ct. 58. 27 Thomas v. Board of Trustees of Ohio State University, 195 U. S. 211. 49 L. Ed. 164, 25 Sup. Ct. 24; Saunders v. Adams Express Co., 136 Fed. 494. 146-148, Ch. 7 MANUAL OP FEDERAL PROCEDURE. 84 was fatally defective in that it did not state that the company was a corporation. 28 146. Partnerships. A partnership is not a legal entity so as to have a citizenship of itself, but federal jurisdiction of suits by or against partnerships and voluntary associations depend upon the citizenship of the members composing them. 29 147. National Banks. Part subd. 16, 24, Jud. Code, "... 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 state in which they are respectively located. ' ' The above-quoted provision makes jurisdiction as to national banks, except when the United States or a federal officer is a party, the same as any other corporation. 30 148. Married Women. The general rule is that the domicile of the husband is the domicile of the wife. But the rule does not apply when the wife is abandoned. 31 When an alien female mar- ries a citizen, she becomes a citizen. 32 3, Act March 2, 1907, c. 2534. "That any American woman who marries a foreigner shall take the nationality of her husband. At the termination of the marital relation she may resume her American citizenship, if abroad, by regis- tering as an American citizen within one year with a consul of the United States, or by returning to reside in the United 28 Chapman v. Barney, 129 U. S. 679, 32 L. Ed. 800, 9 Sup. Ct. 426. 29 Adams v. May, 27 Fed. 908; Conn v. Chicago etc. E. Co., 48 Fed. 177; Sawyer v. Switzerland Marine Ins. Co., 14 Blatchf. 452, Fed. Cas. No. 12,408. 30 First Nat. Bank v. Forrest, 40 Fed. 705; George v. Wallace. 135 Fed. 286, 68 C. C. A. 40; American Nat. Bank v. Tappan, 174 Fed. 431; Conti- nental Nat. Bank v. Buford, 191 TJ. S. 123, 48 L. Ed. 119, 24 Sup. Ct. 54. 31 Thompson v. Stalmann, 139 Fed. 93; Watertown v. Greaves, 112 Fed. 183, 56 L. R. A. 865, 50 C. C. A. 172. 32 1994, Eev. Stats.; 2 Fed. Stats. Ann., 2d ed., p. 117; 4 U. S. Comp. Stats. 1916, 1994, p. 3948. 85 DIVERSE CITIZENSHIP. Ch. 7, 149-150 States, or, if residing in the United States at the termination of the marital relation, by continuing to reside therein." (34 Stats. 1228 5 2 Fed. Stats. Ann., 2d ed., p. 123 ; 4 U. S. Comp. Stats. 1916, 3960, p. 4833.) 4, Act March 2, 1907, c. 2534. "That any foreign woman who acquires American citizenship by marriage to an Amer- ican shall be assumed to retain the same after the termination of the marital relation if she continue to reside in the United States, unless she makes formal renunciation thereof before a court having jurisdiction to naturalize aliens, or if she re- sides abroad she may retain her citizenship by registering as_ such before a United States consul within one year after the termination of such marital relation." (34 Stats. 1229; 2 Fed. Stats. Ann., 2d ed., p. 124; 4 U. S. Comp. Stats. 1916, 3961, p. 4834.) 149. Personal Representatives. "The test of jurisdictional authority is to be found in the citizenship of the parties who are actually before the court; and, if either of such parties sue or is sued in a representative capacity, his own citizenship, and not the citizenship of him whom he represents, is the determining factor." In a suit against the administrator, there must be diver- sity of citizenship between him and the complainant; and the fact that his decedent possessed the requisite citizenship at the time of the transactions giving rise to the suit, and at the time of his death, is immaterial. 33 It is not material in what state letters testamentary or of administration are granted. 34 , 150. Trustees. "If a trustee, by his citizenship, is qualified to sue in a federal court, the citizenship of the beneficiary under the trust is wholly unimportant. If the trustee is disqualified by reason of citizenship in the same state as that of the necessary defendants, the suit cannot be entertained, even though the bene- 33 Bangs v. Loveridge, 60 Fed. 963; Dodge v. Perkins, Fed. Cas. No. 3954, 4 Mason, 435; Susquehanna etc. R. Co. v. Blatehford, 11 Wall. (U. S.) 172, 20 L. Ed. 179. 34 Brisenden v. Chamberlain, 53 Fed. 310; Hess v. Reynolds, 113 U. S. 76. 28 L. Ed. 927, 5 Sup. Ct. 377. 151, Ch. 7 MANUAL OF FEDERAL PROCEDURE. 86 ficiary might be qualified. The jurisdiction is to be determined, in all such instances, by the citizenship of the trustee. Neither is the rule changed by the refusal of the trustee to act. His re- fusal may authorize .the beneficiary to exhibit a bill against the debtor to obtain a decree of a foreclosure. But, if the legal title to the property conveyed in trust be in the trustee, then the court cannot grant any relief until the trustee was made a party de- fendant." 35 But where the trustee is a naked trustee, and his .sole duty is to hold the property until defeasance, with no power over it, and no right or duty to foreclose, the rule does not apply. 36 A non- resident cestui que trust may sue in the federal court, when the trustee refuses to sue, by making the trustee a party defendant, where he is a resident of the same state as the other defendants. 37 151. Guardians. Where an infant sues or defends by a guardian or next friend, it has been held that the federal juris- diction depends on the citizenship of the infant. 38 The domicile of the infant is that of its parents; if the father is living, that of the father; if dead, that of the mother. Where the parents are divorced, the domicile will be governed by the domicile -of the parent to whom the infant has been awarded. 39 It has been held that when the law of the state of the forum gives the general guardian a right to sue in his own name as such guardian, he is to be treated as the party plaintiff so far as federal jurisdiction is concerned. 40 35 Shipp v. Williams, 62 Fed. 4, 10 C. C. A. 247; Gardner v. Brown, 21 Wall. (U. S.) 36, 22 L. Ed. 527; McRea v. Branch Bank of Alabama, 19 How. (U. S.) 376, 15 L. Ed. 688; Knapp v. Troy etc. R. Co., 20 Wall. (U. S.) 117, 22 L. Ed. 328; Watson v. Asbury Park etc. R. Co., 73 Fed. 1. 36 D. A. Tompkins Co. v. Catawba Mills, 82 Fed. 780. 37 Einstein v. Georgia So. & F. R. Co., 120 Fed. 1009; Omaha Hotel Co. v. Wade, 97 U. S. 13, 24 L. Ed. 917; Reinach v. Atlanta G. W. R. Co., 58 Fed. 33, 38. 38 Woolridge v. McKenna, 8 Fed. 650; In re McClean, 26 Fed. 49; Wil- coxsen v. Chicago etc. 'R. Co., 116 Fed. 444; Voss v. Neineber, 68 Fed. 947; Wiggins v. Bethune, 29 Fed. 51. 39 Marks v. Marks, 75 Fed. 325; Toledo Traction Company v. Cameron, 137 Fed. 49, 69 C. C. A. 28. 40 Mexican C. R. Co: v. Eckman, 187 U. S. 429, 47 L. Ed. 245, 23 Sup. Ct. 211. 87 DIVERSE CITIZENSHIP. Ch. 7, 152-153 152. Aliens. Aliens are citizens or subjects of foreign states, and the district courts are given jurisdiction, when the con- troversy is between a citizen or citizens of a state and a citizen or citizens and subjects of foreign state. 41 An alien may sue a citizen or a citizen may sue an alien. 42 In this class of cases as in suits between citizens of different states, the citizenship of parties on one side of the controversy must be attached to a particular state or states with an alien on the other side. 43 The bare allegation that the opposing party is an alien is not sufficient. It must be alleged that he is a subject or citizen of .some one foreign state. 44 Federal courts have no jurisdiction of suits between aliens where no federal question is involved either alone or by joining citizens. 45 A description of plaintiff as "a citizen of London, England," is not a sufficient averment that plaintiff is a citizen of Great Britain. 46 The declaration may be amended to show that the plaintiff was an alien when the suit was commenced, instead of a citizen as alleged. 47 153. Indians. Indians are neither citizens nor aliens. An Indian residing within the United States is not "a foreign citizen or subject." 48 A member of an Indian tribe maintaining tribal relations is not a citizen of the United States, nor of the state of his residence, unless he has been naturalized in some manner. 49 41 Prentiss v. Brennan, 2 Blatchf. 162, 19 Fed. Gas. No. 11,385. 42 Mossman v. Higginson, 4 Dall. (U. S.) 12, 1 L. Ed. 720; Piquignot v. Pennsylvania R. Co., 16 How. (U. S.) 104, 14 L. Ed. 863; Sherwood v. Newport News etc. Co., 55 Fed. 1, 5. 43 Piequet v. Swan, 5 Mason, 35, 19 Fed. Gas. No. 11,134. 44 Wilson v. City Bank, 3 Sumn. 422, 30 Fed. Cas. No. 17,797. 45 Johnson v. Accident Ins. Co. of North America, 35 Fed. 376; Hodgson v. Bowerbank, 5 Cranch (U. S.), 304, 3 L. Ed. 108; Rateau v. Bernard, 3 Blatchf. 244, 20 Fed. Cas. No. 11,579; Pooley v. Luco, 72 Fed. 561. 46 Stuart v. Easton, 156 U. S. 46, 39 L. Ed. 341, 15 Sup. Ct. 268. 47 Betzoldt v. American Ins. Co., 47 Fed. 705. 48 Karrahoo v. Adams, 1 Dill. 344, 14 Fed. Cas. No. 7614. 4 Paul v. Chilsoquie, 70 Fed. 401, 154:, Ch. 7 MANUAL OF FEDERAL PROCEDURE. 88 A child deriving citizenship through its negro mother, though with an Indian father, is a citizen for the purpose of jurisdiction. 50 154. Term "Citizen" Collective. The word "citizen," as used in the statute, is used in a collective sense, and means all parties on one side of a suit, considered as a whole, differ from all the parties on the other side of the suit in citizenship. "While the designation of a party 'plaintiff' or 'defendant' was in the singular number, it was intended to embrace all persons who were on one side, however numerous, so that distinct interest must be represented by persons all of whom were entitled to sue or were liable to be sued, in the federal court. 51 The reason for this is apparent when it is remembered that the original intent of making diverse citizenship a ground of fed- eral jurisdiction was to furnish an impartial tribunal for the determination of controversies between such parties. If a citizen of a state is opposed to a citizen of the same state, presumably justice would be given in the state court to its own citizens, and the joinder of nonresidents on one side or the other would not affect the case. The federal court's jurisdiction is limited, and if it cannot take jurisdiction of a case between citizens of the same state, the mere fact that there is diverse citizenship as to other parties would not confer jurisdiction. It must appear that every party on one side of the action is a citizen of a different state from every party on the other side. 52 If two causes of action are set out, diversity must appear in both. 53 The- same rule applies in suits between citizens and aliens. All the necessary parties on one side must 50 Alberty v. United States, 162 U. S. 499, 40 L. Ed. 1051, 16 Sup. Ct. 864. si Saginaw Gaslight Co. v. City of Saginaw, 28 Fed. 529; Straw-bridge v. Curtiss, 3 Cranch (U. S.), 267, 2 L. Ed. 435; Susquehanna etc. R. & Coal Co. v. Blatchford, 11 Wall. (IP. S.) 172. 20 L. Ed. 179. 52 Mexican C. R. Co. v. Pinkney, 149' U. S. 194, 37 L. Ed. 699. 13 Sup. Ct. 859; Anderson v. Bassman, 140 Fed. 10, 11; Peninsular Iron Co. v. Stone, 121 U. S. 633, 30 L. Ed. 1020, 7 Sup. Ct. 1010. 53 Howe & D. Co. T. Haugan,- 140 Fed. 184, 185; King v. Inlander, 133 Fed. 416. 89 DIVERSE CITIZENSHIP. Ch. 7, 155-156 be citizens of a state and all on the other side must have citizen- ship otherwise. 54 155. Change of Domicile After Suit Commenced. A change of citizenship after the suit is commenced will have no effect on the jurisdiction of the court, where the parties were citizens of different states at the commencement of the suit. 55 Nor will an assignment of the cause of action after the suit is begun, whereby the parties become citizens of the same state, affect the jurisdiction of the court once obtained. 58 156. Change of Citizenship or Transfer of Subject Matter to Give Jurisdiction. 57 If a citizen removes from one state to another in order to prosecute suits in the courts of the United States, provided the removal be real, the motive of the act can- not be inquired into. 58 But the change must be bona fide, and not merely ostensible. 59 A person who, residing in and transacting business in St. Louis, for the purpose of acquiring a residence for jurisdictional purposes crosses the river to East St. Louis, and there rents a room in which he sleeps at night while he continues to transact his business and also to take his meals in St. Louis, does not acquire a residence for jurisdictional purposes. 60 Another mode of securing federal jurisdiction is to transfer the subject of litigation or the cause of action, to a nonresident. The test in this case is the same as that applied in a change of resi- dence, whether or not the transfer was made in good faith. The M Tracy v. Morel, 88 Fed. 801; Sawyer v. Switzerland Marine Ins. Co., Fed. Cas. No. 12,408, 14'Blatchf. 452; Ex parte Girard, 3 Wall. Jr. 263, 265, Fed. Cas. No. 5457. 55 Pacific Mut. Life Ins. Co. v. Tompkins, 101 Fed. 539, 41 C. C. A. 488; Conolly v. Taylor, 2 Pet. (U. S.) 556, 7 L. Ed. 518; Anderson v. Watts, 138 U. S. 694, 34 L. Ed. 1078, 11 Sup. Ct. 449; Morgan v. Morgan, 2 Wheat. (U. S.) 297, 4 L. Ed. 24. See, also, cases cited 4 Fed. Stats. Ann., 2d ed., p. 949 et seq. 56 Anderson v. Watts, 138 TJ. S. 694, 34 L. Ed. 1078, 11 Sup. Ct. 449, supra; Hardcnbergh v. Ray, 151 U. S. 112, 38 L. Ed. 93, 14 Sup. Ct. 305. 57 See 97 above as to jurisdiction by assignment. 58 Briggs v. French, 2 Sumn. 251, 4 Fed. Cas. No. 1871. - 69 Mitchell v. United States, 21 Wall. (U. S.) 352, 22 L. Ed. 587. o Kingman v. Holthaus, 59 Fed. 305. 157, Ch. 7 MANUAL OP FEDERAL PROCEDURE. 90 mere fact that the subject matter of the suit has been transferred for the purpose of giving jurisdiction to the court will not defeat jurisdiction, provided there has been a bona fide sale and transfer, by which the transferee becomes the real owner and thereby the party to the suit. 61 But where it appears that a conveyance to plaintiff has been made without consideration for the sole purpose of making a case of diverse citizenship, the case will be dismissed on motion. 62 When all interest in the subject matter is parted with upon good consideration, then the fact that the motive was to get federal jurisdiction will not be considered. 63 But if at any time it appears that the parties to the suit have been improperly or collusively made or joined, either as plaintiffs or defendants, for the purpose ofc creating a case cognizable or removable under the act, the circuit court will proceed no further, but shall dismiss the suit or remand it to the court from which it was removed. 64 157. Shifting' Parties to Create Diversity. It should appear in the bill that there is a diversity of citizenship to give jurisdic- tion; prior to the act of March 3, 1875, this was sufficient, and their position on the bill was conclusive. 65 But since 1875 the rule is that jurisdiction does not lawfully attach until all neces- sary parties are made parties. It is not in the discretion of the pleader to arrange parties in the suit so as to confer jurisdiction. They must be arranged according to their interests in the suit, and the court, when passing on the question of jurisdiction, will 61 Manhattan L. Ins. Co. v. Broughton, 109 U. S. 125, 27 L. Ed. 878, 3 Sup. Ct. 99; Collinson v. Jackson, 14 Fed. 305, 309, 8 Sawy. 357; Hawley v. Kepp, 2 Flipp. 177, 11 Fed. Cas. No. 6249; Briggs v. French, 2 Sumn. 251, 4 Fed. Cas. No. 1871. 62 Williams v. Nottawa, 104 U. S. 209, 26 L. Ed. 719; Bernards Tp. v. Stebbins, 109 U. S. 341, 27 L. Ed. 956, 3 Sup. Ct. 252; Greenwalt v. Tucker, 10 Fed. 884, 3 McCrary, 450; Maxweld v. Levy, 2 Dall. (U. S.) 381, 1 L. Ed. 424, 4 Dall. (U. S.) 330, 11 L. Ed. 854, 16 Fed. Cas. No. 9321. 63 Norton v. European & N. A. K. Co., 32 Fed. 865; Lake County v. Dud- ley, 173 U. S. 243, 43 L. Ed. 684, 19 Sup. Ct. 398; Irvine Co. v. Bond, 74 Fed. 849; Alkire Grocery Co. v. Eichesin, 91 Fed. 79, 84; Ashley v. Board of Supervisors of Presque Isle County, 83 Fed. 534, 27 C. C. A. 585; Board of Commissioners of Lake County v. Schradsky, 97 Fed. 2, 38 C. C. A. 17. 64 Fountain v. Town of Angelica, 12 Fed. 8, 20 Blatchf. 448; Hawes v. Contra Costa Water Co., 25 Alb. Law J. 146 (S. C., 11 Fed. 93, note); Bar- ney v. Baltimore City, 6 W r all. (U. S.) 2SO, 18 L. Ed. 825. 65 Bland v. Fleeman, 69 Fed. 669, 672. 91 DIVERSE CITIZENSHIP. Ch. 7, 157 \ do this. It will look to the real facts of the ease, as developed by the pleadings, and will disregard the artificial arrangement of the parties by the pleader, and ascertain from the pleadings where the real controversy lies, and arrange the parties accordingly. Parties cannot, by arranging themselves as plaintiffs or defend- ants in a cause, create a fictitious ground of federal jurisdiction. This is denominated a joinder of parties to confer jurisdiction. 66 Where there are several defendants to a suit some of whom have the required diverse citizenship to support the bill, and some who have not, jurisdiction may be retained over the defendants as to whom diversity of citizenship exists, and a dismissal of the com- plaint may, and in the proper case will, be permitted against defendants who are not found to be within the jurisdiction of the court, unless such defendants are indispensable to the entry of a decree against the remaining defendants, and when it may be done without prejudice. 67 When the parties are before the court the court will, for the purpose of ascertaining the jurisdic- tion, arrange them according to their actual interests, and place them on the side of the controversy to which they belong, and, if it then appears that the controversy is not between citizens of different states, the court is without jurisdiction. 68 If some of the parties plaintiff have "interests identical with some of the par- ties defendant, and the interest is not separable, you cannot sepa- rate them because they are citizens of different states to get jurisdiction by diversity." 69 66 Bland v. Fleeman, 69 Fed. 669, 672: Stephens v. Smartt, 172 Fed. 466. 471. 6T Horn v. Lockhart, 17 Wall. (U. S.) 570, 21 L. Ed. 657; Oxley Stave Co. v. Coopers' International Union, 72 Fed. 695; Mason v. Dullagham, 82 Fed. 689, 27 C. C. A. 296; Grove v. Grove, 93 Fed. 865; Smith v. Con- sumers' Cotton-Oil Co., 86 Fed. 359, 30 C. C. A. 103; Delaware, L. & W. R. Co. v. Frank, 110 Fed. 689. 68 Marvin v Ellis, 9 Fed. 367; Covert v. Waldron, 33 Fed. 311; Rich v. Bray. 37 Fed. 273, 2 L. R. A. 225; Williams v. Nottawa, 104 U. S. 209, 2(1 L. Ed. 719; Detroit City v. Dean, 106 U. S. 537, 27 L. Ed. 300, 1 Sup. Ct. 560; Mansfield etc. R. Co. v. Swan, 111 U. S. 379, 28 L. Ed. 462, 4 Sup. Ct. 510; Cashman v. Amador etc. Canal Co., 118 U. S. 58, 30 L. Ed. 72, 6 Sup. Ct. 926; Cilley v. Patten, 62 Fed. 498; Walster v. United States. 42 Fed. 892; Patten v. Cilley, 50 Fed. 337, 1 C. C. A. 522; In re Cilley, 58 Fed. 977. 69 Carroll v. Chesapeake & O. Coal Agmcy Co., 124 Fed. 305, 309, 61 C. C. A. 49; Mangels v. Donau Brewing Co., 53 Fed. 513; Dawson v. Columbia Ave. 157, Ch. 7 MANUAL OP FEDERAL PROCEDURE. 92 In Old Colony Trust Co. v. Atlanta Ry. Co., 100 Fed. 798, which was a suit by a trust company against two railroad com- panies to enjoin the former company from enforcing a right which it said it had obtained by an ordinance of the city to condemn a certain portion of the track of the latter company, the latter company came into court by cross-bill, and adopted all of the allegations of the bill of the trust company, and arranged itself by all pleadings on the side of the litigation with the trust com- pany. The court said: "The pleadings put it on the side of the complainant necessarily; its interests are there very clearly; the whole countenance Of the case puts the latter railway company on the same side with the trust company in this litigation. So, I think there can be no question here that it is not only the duty of the court, but it is its imperative duty, under the law, to put the latter railway company on the side with the complainant; and it being a citizen of Georgia, and the defendant railway company being a citizen of Georgia, necessarily the jurisdiction fails. It is well understood that this court, however, will not oust its own jurisdiction will not defeat its own jurisdiction unless it is met squarely with a state of facts which requires it; that is, where litigation is brought into court, the court will not seek to rid itself of hearing the case, if it finds that, by dispensing with certain parties, it can relieve the existing situation, and have only proper parties before the court on the question of diverse citizenship. The question then arises 'here, whether or not the latter railway com- pany is an indispensable party to this litigation. If it is not, of course the court, under the rule and practice just suggested, would dismiss it from the litigation, and leave the case cognizable in the circuit court. Now, can this litigation be settled without the presence of the latter company? Will the court undertake to decree that A has a right against B at the instance of C, without having B before it? In my judgment, it is absolutely necessary Sav. Fund etc. Co., 197 U. S. 178, 49 L. Ed. 713, 25 Sup. Ct. 420; Joseph Dry Goods Co. v. Hecht, 120 Fed. 761, 57 C. C. A. 64; Venner v. Great Northern R. Co., 209 U. 8. 24, 52 L. Ed. 666, 28 Sup. Ct. 328; Gage v. River- side Trust Co., 156 Fed. 1003. 93 DIVERSE CITIZENSHIP. Ch. 7, 158 to have the latter company before the court in order to determine and fully dispose of the issues presented in this case. In that view, there is but one course for the court to pursue, and that is to dismiss this litigation from the court for want of jurisdiction on account of the citizenship of the parties; and this without preju- dice to the rights of the parties in the case." Where a copartnership is sued one or more of the partners may be left out, when they are citizens of the same state as the plain- tiff, so as to give the federal courts jurisdiction. 70 But previous to this in Ruble v. Hyde, 1 McCrary, 513, 3 Fed. 331, it had been held that a copartner could not be left out to give jurisdiction to the federal courts, and as this ease was not mentioned in Smith v. Consumers' Cotton-Oil Co., 86 Fed. 359, 30 C. C. A. 103, it would appear that it had been overlooked, or there would have been a different conclusion on a similar statement of facts. When a suit is brought in the name of a state on the relation of an individual, it is the citizenship and the residence of the individual that govern the jurisdiction of the circuit court. 71 158. Venue as Affecting Jurisdiction Based on Diverse Citizenship. Part 51, Jud. Code. "... 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." (Supra, 61.) By reason of the provision of the statute above quoted, a suit by a citizen of one state against a citizen of another state broutrht in a third state would not lie, because the venue would be improp- erly laid and on timely objection the suit would be dismi scd. But 70 50, Jud. Code, 73, supra; Clearwater v. Meredith, 21 How. (U. 8.) 489, 16 L. Ed. 201; Inbusch v. Farwcll, 1 Black (U. S.), 566, 17 L. Ed. 188; Smith v. Consumers' Cotton Oil Co., 86 Fed. 359, 30 C. C. A. 103; Barney v. Baltimore City, 6 Wall. (U. S.) 280, 18 L. Ed. 825. 71 Indiana v. Glover, 155 U. S. 513, 39 L. Ed. 243, 15 Sup. Ct. 186; McNutt r. Bland, 2 How.-(U. S.) 9, 11 L. Ed. 159. 159, Ch. 7 MANUAL OP FEDERAL PROCEDURE. 94 venue not being jurisdietional, the defect might be waived by the defendant's failure to object at the outset of the action. This is a very different matter from that discussed in the pre- ceding section. The following illustration will show the difference in the two classes of cases: Supposing a citizen of California sued a citizen of Nevada to- gether with a citizen of California in the federal district court in Arizona. The fact that there was a California citizen on each side of the controversy would be fatal to setting up diverse citizen- ship as a ground of federal jurisdiction, unless the suit against the California defendant could be dismissed. Assuming that this could be done, leaving the contest between the California and a Nevada citizen, there would be the requisite diversity of citizen- ship as a ground of federal jurisdiction, and the Arizona federal court would not be deprived of jurisdiction unless the Nevada defendant moved to dismiss for defect in venue. 159. Issue of Citizenship How Raised. The required diver- sity of citizenship must appear on the face of initial pleading on the part of the complainant, and if it does not appear, the court will assume that it has no jurisdiction and dismiss the bill. 72 If the suit is in equity, the matter is governed by the Equity Rule 29, providing for a motion to dismiss if the fact that there is not a proper diversity of citizenship appears on the face of the bill, or in the answer if it does not appear on the face of the bill. 72 Boston Safe Deposit & Trust Co. v. City of Racine, 97 Fed. 817; Con- solidated Water Co. v. Babcock, 76 Fed. 243; First National Bank v. Rad- ford Trust Co., 80 Fed. 569, 26 C. C. A. 1; Timmons v. Elyton Lanrl Co., 139 U. S. 378, 35 L. Ed. 195, 11 Sup. Ct. 585; Home v. George H. Hammond Co., 155 U. S. 394, 39 L. Ed. 197, 15 Sup. Ct. 167. 95 DIVERSE CIT1ZENSUIP. Ch. 7, 159 If a motion to dismiss is filed it may be in the following form: In the District Court of the U. S. for the District of > , Division. John Doe, Plaintiff, v. Richard Roe, Defendant. MOTION TO DISMISS. And now comes Richard Roe, the defendant in the above-entitled action, and moves the court to dismiss this action and that he take his costs in this suit incurred, for that it appears by the pleadings filed, [or by the evi- dence taken], in the cause that [naming party] is not a citizen of the state of , as alleged, and therefore no diversity of citizenship exists as alleged and upon which basis the court is alleged to have juris- diction. A. B., Solicitor, etc. It is a practice to be recommended, that the question of diver- sity of citizenship should be raised in the answer, before the case goes to trial. If it is not raised, the court will not infer a want of jurisdiction unless it affirmatively appears in the legitimate evidence taken on the main issues in the case. The court will not admit evidence on issues not raised in the pleadings. But if the issue is raised in the answer, all evidence tending to prove the issue will be admitted. If the answer raises the issue of diversity of citizenship, it may be substantially as follows: Tn the District Court of the U. S. for the District of , Division. John Doe, Plaintiff, ANSWIB. Richard Roe, Defendant. Comes now the defendant, Richard Roe, and answers plaintiff's bill of complaint, as follows, to wit: Denies that the plaintiff is now, or ever has been a citizen of the state of [naming state] or that he is now, or ever has been an inhabitant of said state of [naming state] or that he does now, or ever has resided therein. But defendant alleges that plaintiff is now, and at the commence- ment of this suit was, a citizen and resident of the state of [naming state} of which state, that is, the 'state of [naming state] the defend- ant Richard Roe is and was at the commencement of this action, a citizen 160, Ch. 7 MANUAL OF FEDERAL PROCEDURE. 96 and resident. That there IB, therefore, no diversity of citizenship, nor ground of jurisdiction in this court. [Then take up other defenses t'o the bill.] Wherefore defendant prays the said plaintiff, John Doe, take nothing by Ms bill, that the said bill be dismissed, and that the defendant have his costs herein incurred. A. B., Solicitor. If the action is at law the issue would be raised in the same manner as a question of jurisdiction in the state court in which that district court is situated. All defenses in an action at law are open to a defendant in the district court of the United States under any form, of plea, answer, or demurrer, which would have been open to him under like pleading in the courts of the state within which the district court is held. This may be by general denial where the state law permits. 73 If the defense of no juris- diction must be especially pleaded in the state court, it may be so pleaded in the federal court, and testimony in reference to the citizenship of the parties is only admissible in support of allegations properly made in the pleadings. 74 If the issue is raised by demurrer in the state court, the same rule applies in the dis- trict court. 75 160. When Want of Diversity Appears on the Trial. It may happen that the want of the required citizenship, when it does not appear in the pleadings, and is not raised in the answer, will appear on the trial of the case. If it should appear thus, it is the duty of the court sua sponte to dismiss the case without either 73 Chemung Canal Bank v. Lowery, 93 U. S. 72, 23 L. Ed. 806; Oscanyan v. Winchester Repeating Arms Co., Fed. Gas. No. 10,600, 15 Blatchf. 79, 17 Am. Law Reg. (N. S.) 626, 13 Amer. Law Rev. 161; affirmed, Oscanyan v. Arms Co., 103 U. S. 261, 26 L. Ei. 539; Lafayette Bridge Co. v. Streator, 105 Fed. 729; Theroux v. Northern Pac. R. Co., 64 Fed. 84, 87, 12 C. C. A. 52; Johnston v. Klopsch, 88 Fed. 692; Celluloid Mfg. Co. v. American Zylonite Co., 34 Fed. 744; Frank v. Chetwood, 9 Rep. 6, 9 Fed. Gas. No. 5051. 74 Preferred Ace. Ins. Co. v. Barker, 93 Fed. 158, 35 C. C. A. 250. 75 Chemung Canal Bank v. Lowery, 93 U. S. 76, 23 I*. Ed. 806. See, also, Kent v. Bay State Gas Co., 93 Fed. 887. 97 DIVERSE CITIZENSHIP. Ch. 7, 101 motion or suggestion. But the defendant may take the initiative by filing a motion. 78 57, Jud. Code. "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 said dis- trict court, at any time after such suit has been brought or re- moved thereto, that such suit does not really and substan- tially involve a dispute or controversy properly within the jurisdiction of said district court, or that the parties to ?aid 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 chapter, the said district court shall proceed no further therein, but shall dismiss the suit, or remand it to the court from which it was removed, as justice may require, and shall make such order as to costs as shall be just." (36 Stats. 1098; 5 Fed. Stats. Ann., 2d ed., p. 398; 1 U. S. Comp. Stats. 1916, 1019, p. 1033.) Thus, the court must dismiss the case at once if it appears at any time during the progress of the case that it is without juris- diction. 77 When the issue is raised it may be tried by the judge or submitted to a jury. 78 161. Amendment to Show Diversity. 274c, Jud. Code, 79 by Amendment March 3, 1915, c. 90. "That where, in any suit brought in or removed from any state court to any district of the United States, the jurisdic- 76 Williams v. Nottawa, 104 U. S. 212, 2fi L. Ed. 720; Farmington Village Corp. v. Pillsbury, 114 U. S. 144, 29 L. Ed. 114, 5 Sup. Ct. 807; Little v. Giles, 118 U. S. 603, 604, 30 L. Ed. 269, 7 Sup. Ct. 32; Hartog v. Memory, 116 U. S. 588, 29 L. Ed. 725, 6 Sup. Ct. 521; Morris v. Gilmer, 129 U. S. 315, 32 L. Ed. 690, 9 Sup. Ct. 289. 77 Turner v. Farmers' Loan & T. Co., 106 U. S. 555, 27 L. Ed. 274, 1 Sup. Ct. 519; King Iron Bridge Co. v. Otoe County, 120 U. S. 226, 30 L. Ed. 624, 7 Sup. Ct. 552. 78 Wetmore v. Bymer, 169 U. S. 115, 42 L. Ed. 684, 18 Sup. Ct. 293; Canadian Pac. R. Co. v. Wenham, 146 Fed. 206, 207. 79 Amendment, Swayne v. Barsch (9th Cir.), 226 Fed. 581, 141 C. C. A. 337. By consent, Kennedy v. Bank of Georgia, 8 How. (U. S.) 586, 12 L. Ed. 1209. Discretionary power, Ayers v. Watson, 137 U. S. 584, 34 L. Ed. 803, 11 Sup. Ct. 201. Does not include dismissal, Thomas v. Ander- san (8th Cir.), 223 Fed. 41, 138 C. C. A. 405. On removal, 5 Fed. Stats. Ann., 2d ed., p. 418. 161, Ch. 7 MANUAL OF FEDERAL PROCEDURE. 98 tion of the district court is based upon the diverse citizenship of the parties, and such diverse citizenship in fact existed at the time the suit was brought or removed, though defectively alleged, either party may amend at any stage of the proceed- ings and in the appellate court upon such terms as the court may impose, so as to show on the record such diverse citizen- ship and jurisdiction, and thereupon such suit shall be pro- ceeded with the same as though the diverse citizenship had been fully and correctly pleaded at the inception of the suit, or, if it be a removed case, in the petition for removal." (38 Stats. 956 ; 5 Fed. Stats. Ann., 2d ed., p. 1061 ; 2 U. S. Comp. Stats. 1916, 1251c, p. 2023.) 99 AMOUNT IN CONTBOVERSY. Ch. 8, 170 CHAPTER 8. AMOUNT IN CONTEOVERSY. SEC. 170. In General. 171. When Amount in Controversy is Material. 172. Same Removal of Land Grant Cases. 173. Wlhen the Amount in Controversy is not Material. 174. What is "Amount in Controversy." 175. Amount Stated in Declaration or Bill Controls Unless Pleaded Erro- neously or in Bad Faith. 176. Amount in Controversy Includes What. 177. Effect of Valid Setoff or Payment. 178. Aggregating Amounts 1 to Create Jurisdiction. 179. Amendment to Show. 180. State Statutes Do not Control as to Splitting Demands. 181. Raising Issue as to Amount or Good Faith. 170. In General. The federal statutes have made the sum or value of the matter in controversy an essential element of a large number of cases of which the district courts have jurisdiction both originally and on removal. The matter in controversy must exceed, exclusive of interest and costs, the sum or value of $3,000 in cases brought in the fed- eral court originally or on removal, and whether the action be based on the ground of diverse citizenship or a federal question, but with certain exceptions in the latter class of cases. Cases in which the amount in controversy is material are specifically enumer- ated in 171 following. The amount in controversy is not material in suits brought by the United States. 1 The amount is not material in suits between citizens of the same state claiming under land grants from different states in cases originally brought in the federal court, 2 but is 1 United States v. Say ward, 160 U. S. 493, 40 L. Ed. 508, 16 Sup. Ct. 371; United States v. Reid, 90 Fed. 522; United States v. Flournoy Live Stock etc. Co., 71 Fed. 576; United States v. Kentucky River Mills, 45 Fed. 273; United States v. Shaw, 39 Fed. 433, 3 L. B. A. 232. 2 United States v. Say ward, 160 U. S. 493, 40 L. Ed. 508, 16 Sup. Ct. 371. 171, Ch. 8 MANUAL OF FEDERAL PROCEDURE. 100 material on removal under 30, Jud. Code ( 172 below). The amount is not material in eases of which the federal courts have exclusive jurisdiction and in other cases especially excepted in paragraphs 2 to 25 of 24, Jud. Code. The provisions of 24, Jud. Code, setting out the cases in which the amount in contro- versy is not material, are indicated in 173 hereafter. 24, Jud. Code, is quoted in full 94 above. The present chapter gives some suggestions as to what is meant by the sum or value of the matter in controversy and as to the pleading and determination of the issue of "amount in contro- versy. ' ' 171. When Amount in Controversy is Material. 24, Jud. Code. ' ' The district court shall have original jurisdiction as follows: First. Of all suits of a civil nature, at common law or in equity, . . . where the matter in con- troversy exceeds, exclusive of interest and costs, the sum or value of three thousand dollars, and (a) arises under the Constitution or laws of the United States or treaties made, or which shall be made, under their authority, or (b) is between citizens of different states, or (c) is between citizens of state and foreign states, citizens or subjects. . . . Provided, how- ever, That the foregoing provision as to the sum or value of the matter in controversy shall not be construed to apply to any of the cases mentioned in the succeeding paragraphs of this section. ..." (Quoted in full above, 94.) 28, Jud. Code. "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 authority, 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. . . . 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. ..." (See Amendment Jan. 20, 1914, quoted 204, post.) 101 AMOUNT IN CONTROVERSY. Ch. 8, 172-173 172. Same Removal of Land Grant Cases. 30, Jud. Code 3 (Re-enacting part 647, Rev. Stats.). "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 thou- sand dollars, exclusive of interest and costs, the sum or value being made to appear, one or more of the plaintiffs or defend- ants, before the trial, may state to the court, and make affi- davit if the court require it, that he or they claim, and shall rely upon, a right or title to the land under a grant from a state, and produce the original grant, or an exemplification of it, except where the loss of public records shall put it out of his or their power, and shall move that any one or more of the adverse party inform the court whether he or they claim a right or title to the land under a grant from some other state, the party or parties so required shall give such information, or otherwise not be allowed to plead such grant or give it in evidence upon the trial. If he or they inform the court that he or they do claim under such grant, any one or more of the party moving for such information may then, on petition and bond, as hereinbefore mentioned in this chapter, remove the cause for trial to the district court of the United States next to be holden in such district ; and any one of either party re- moving the cause shall not be allowed to plead or give evidence of any other title than that by him or them stated as afore- said as the ground of his or their claim." (36 Stats. 1096; 5 Fed. Stats. Ann., 2d ed., p. 375; 1 U. S. Comp. Stats. 1916, 1012, p. 1014; Foster's Federal Practice, 5th ed., pp. 20, 1832, 1869.) 173. When the Amount in Controversy is not Material. In many cases under 24, Jud. Code, the amount in controversy is immaterial. The provision as to value of the matter in contro- versy is expressly stated in 24, Jud. Code, not to apply to the cases already mentioned, 91 and 92 above, as coming under the exclusive jurisdiction of the federal courts, and also not to apply to suits under the following laws mentioned in the various subdivisions 3 This act substitutes $3,000 for $2,000 as the jurisclictional amount, and substitutes the words "district court" for the words "circuit court." Pawlet v. Clark, 9 Cranch (U. S.), 292, 3 L. Ed. 735. In general, Stevenson v. Fain, 195 U. S. 165, 49 L. Ed. 142, 25 Sup. Ct. 6. 174, Ch. 8 MANUAL OP FEDERAL PROCEDURE. 102 of 24, Jud. Code, as follows : admiralty causes, seizures and prizes (subd. 3) ; relating to slave trade (subd. 4) ; cases under internal revenue, customs and tonnage laws (subd. 5) ; suits under postal laws (subd. 6) ; suits under the trademark laws (subd. 7) ; suits for violation of interstate commerce laws (subd. 8) ; suits on debentures for drawback of duties (subd. 10) ; suits for injuries on account of acts done under laws of the United States (subd. 11) ; suits concern- ing civil rights (subd. 12) ; suite against persons having knowledge of conspiracy under civil rights laws (subd. 13) ; suits to redress the deprivation under color of law of civil rights (subd. 14) ; suits to re- cover certain offices (subd. 15) ; suits involving national banking as- sociation (subd. 16) ; suits by aliens for torts (subd. 17) ; suits under immigration and contract labor laws (subd. 22) ; suits con- cerning allotment of lands to Indians (subd. 24) ; partition suits where United States is a joint tenant (subd. 25). In criminal prosecutions under the foregoing classification or suits for penal- ties and forfeitures the jurisdiction would be exclusive of the state courts, under 256, Jud. Code, subds. 1 and 2 ( 92 above). The amount or value in controversy is also immaterial in all suits in law or in equity, brought by the United States or by any officer thereof authorized by law to sue, or between citizens of the same state claiming lands under grants from different states under the first part of 24, Jud. Code, quoted 94 above. But if in any action commenced in a state court the title of land be con- cerned, and the parties are citizens of the same state claiming under land grants of different states, the matter in dispute must exceed $3,000, exclusive of interest and costs, to entitle a party to remove to the federal court ( 30, Jud. Code). 174. What is "Amount in Controversy." The statutes and decisions use the terms interchangeably, "amount in controversy," "matter in dispute," "amount in dispute." By such terms are meant either the amount sued for in good faith or the value of the property or .right involved, depending upon the nature of the case. Generally speaking, when there is a definite amount that can be determined as being in dispute between the parties, this will fix 103 AMOUNT IN CONTROVERSY. Ch. 8, 174 the jurisdiction. But where a particular matter of itself less than the jurisdictional amount or value involves a right or estate as the subject of the dispute, which right or estate depends upon the determination of the controversy, the value of the right or estate will fix the jurisdiction. Thus, the specific amount or value involved governs in a suit to enjoin an illegal property tax, the amount of the tax; 4 or to remove as a cloud on title a claim for a specified amount 5 or enforce a lien, 6 or partition of a specified interest, 7 or to obtain specific per- formance of contract. 8 But there are many cases where a specific amount or value does not measure the amount or value of the matter in controversy, but the value of the object to be obtained and right to be protected, controls. For instance, the maintenance of a schedule rate, pre- venting the establishment of a new schedule, 10 the property right of board of trade in its market quotations; 11 prevention of ticket scalping; 12 enforcement of a joint interest in a fund as on the dis- solution of a partnership or corporation, 13 suit to quiet title or to remove cloud from title, where the value of the land is generally the determining element. 14 If the matter in controversy has no pecuniary measure, the federal courts can take no jurisdiction, as in habeas corpus pro- 4 Douglas Co. v. Stone, 191 U. S. 557, 48 L. Ed. 301, 24 Sup. Ct 843; Turner v. Jackson Lumber Co,, 159 Fed. 926, 87 C. C. A. 106; Purnell y. Page, 128 Fed. 496. o Cooper v. Preston, 105 Fed. 403. Stillwell-Bierce & S. V. Co. v. Williamston Oil & Fertilizer Co., 80 Fed. 68. 7 Rich v. Bray, 37 Fed. 273, 276, 2 L. R. A. 225. 8 Johnston v. Trippe, 33 Fed. 530. Texas & P. R. Co. v. Kuteman, 54 Fed. 547, 4 C. C. A. 503. 10 Northern P. R. Co. v. Pacific Coast etc. Assn., 165 Fed. 2, 91 C. C. A. 39; Chesapeake & D. Canal Co. v. Gring, 159 Fed. 662, 86 C. C. A. 530; Southern P. Co. v. Bartine, 170 Fed. 725 11 Board of Trade v. Cella Commission Co., 145 Fed. 28, 76 C. C. A. 28; John D. Park & Sons Co. v. Hartman, 153 Fed. 24, 12 L. R. A. (N. S.) 135, 82 C. C. A. 158. 12 Nashville, C. & St. R. R. Co. v. McConnell, 82 Fed. 65; Delaware, L. & W. R. Co. v. Frank, 110 Fed. 689. 13 Kent v. Honsinger, 167 Fed. 620; Taylor v. Decatur Mineral & Land Co., 112 Fed. 449. i* Holland v. Challen, 110 U. S. 15, 28 L. Ed. 52, 3 Sup. Ct. 495; Smith v. Adams, 130 U. S. 167, 32 L. Ed. 895, 9 Sup. Ct. 566. 175-176, Ch. 8 MANUAL OP FEDERAL PROCEDURE. 104 ceedings by a father to obtain possession of his infant child, 15 or an action for divorce, alimony being within the discretion of the court. 18 175. Amount Stated in Declaration or Bill Controls Unless Pleaded Erroneously or in Bad Faith. If the sum demanded is so manifestly fictitious as to make it legally certain that the amount alleged was only to get jurisdiction and is not the real amount in controversy, the court will dismiss. 17 The same is true where it appears from the nature of the case stated in the pleadings that there could not legally be a judgment for an amount necessary to the jurisdiction. Thus, where a demand for $1,000 was alleged to be the value of certain property, and in addition $10,000 damages were claimed, the court reached the conclusion that the claim for damages could not be sustained as a matter of law, and the suit was dismissed. 18 176. Amount in Controversy Includes What. The statute says, "exclusive of interest and costs." Hence, items of expense in connection with a cause of action cannot be included unless the contract sued on covers same. 19 Attorneys' fees may be added when a part of the contract. 20 But where a statute makes attor- neys ' fees a part of the costs, they may not be considered. 21 A suit on a bond and matured interest coupons which are no longer a mere incident of the principal indebtedness but have become a principal' obligation, will give the jurisdictional amount. 22 15 Ex parte Everts, 1 Bond, 197, 8 Fed. Caa. No. 4581, 7 Amer. Law Reg. 79. 16 Bowman v. Bowman, 30 Fed. 849. 17 Jones v. McCormick Harvesting Machine Co., 82 Fed. 295, 27 C. C. A. 133; Battle v. Atkinson, 115 Fed. 384. 18 Vance v. Vandercook Co., 170 U. 8. 468, 42 L. Ed. 1111, 18 Sup. Ct. 645 19 Less v. English, 85 Fed. 471, 29 C. C. A. 275. 20 Kogers v. Eiley, 80 Fed. 762: Swofford v. Cornucopia Mines, 140 Fed. 958. 21 Peters v. Queen Ins. Co., 182 Fed. 113. 22 Edwards v. Bates County, 163 U. S. 269, 41 L. Ed. 155, 16 Sup. Ct. 967. 105 AMOUNT IN CONTROVERSY. Ch. 8, 177-180 177. Effect of Valid Setoff or Payment. A party, in alleging the amount of his claim, is presumed to know of any payments made on the claim or valid setoffs existing against it, and hence if such payment or setoff appears from the record undisputed the court will not have jurisdiction. 23 But if tKe payment or setoff is disputed, the mere pleading thereof will not defeat the claim, because, as the court says, "who can say in advance that the de- fense will be insisted on, or, if presented, would be sustained by the court?" 24 178. Aggregating 1 Amounts to Create Jurisdiction. If the claims are joint claims, they may be aggregated to create the juris- dictional amount, 25 but not if they are separable. 26 So, also, an assignee of several claims against single defendant may sue in the federal court, provided the several assignors had the requisite diversity of citizenship necessary to confer jurisdiction. This is so even though the claim of each assignor was less than the juris- dictional amount. 27 179. Amendment to Show. Amendments are permitted to show jurisdictional allegations, and this is true of the allegations as to the amount in controversy when the facts warrant such an amendment. 28 180. State Statutes do not Control as to Splitting 1 Demands. The general rule that the federal court will not follow the state laws and decisions in matters which affect their jurisdiction applies to a state statute requiring demands to be split up into separate 23 Bedford Quarries Co. v. Welch, 100 Fed. 513. 24 Schunk v. Moline M. & S. Co., 147 U. S. 500, 37 L. Ed. 255, 13 Sup. Ct. 416. 25 Holt v. Bergevin, 60 Fed. 2. 26 Jones v. Mutual Fidelity Co., 123 Fed. 506, 510. 27 Bowden v. Burnham, 59 Fed. 752, 8 C. C. A. 248; Bernheim v. Birn- baum, 30 Fed. 885; Davis v. Mills, 99 Fed. 39. 28 Bowden v. Burnham, 59 Fed. 754, 8 C. C. A. 249; Bureau o'f National Literature v. Sells (W. D. Wash.), 211 Fed. 379, 383. . 181, Ch. 8 MANUAL, OF FEDERAL, PROCEDURE. 106 suits, which would defeat the jurisdiction of the court by reducing the demand below the jurisdictional amount. 29 181. Raising Issue as to Amount or Good Faith. The issue as to the amount in controversy, when it appears from the face of the record as a matter of law that the proper amount is not in- volved, may be raised in equity suits under Equity Rule 29, by a motion to dismiss or in the answer, and at law by demurrer or other appropriate pleading authorized by state statutes. Where such defect does not appear from the face of the record, the objec- tion should be made under Equity Rule 29 in the answer when it may be separately heard. In an action at law objection would be by a plea or other appropriate pleading under the state practice. Raising the issue of "amount" as a matter of law, the following allegation is suggested: "Defendant alleges that it appears on the face of the bill of complaint that this ease does not really and substantially involve a dispute or controversy properly within the jurisdiction of the court, in that the matter in controversy, as appears from the bill of complaint, does not exceed the sum or value of three thousand dollars exclusive of interest and costs." If the issue is as to good faith, the following allegation may be used: "That this suit does not really and substantially involve a dispute or contro- versy properly within the jurisdiction of this court in that the amount sued for as alleged in the complaint is not truly stated and is not alleged in good faith, and defendant alleges that the matter in controversy does not exceed the sum or value of three thousand dollars exclusive of interest and costs." 29 O'Connell v. Reed, 56 Fed. 531, 5 C. C. A. 586; Texas etc. E. Co. v. Gentry, 163 U. S. 353, 41 L. Ed. 186, 16 Sup. Ct. 1104. 107 BEMOVAL OF CAUSES, ETC. Ch. 9 CHAPTER 9. REMOVAL OF CAUSES JURISDICTION AND PROCEDURE. SEC. 190. In General. 191. Jurisdiction First Four Classes of Removal Cases. 192. Class One; Removal by Defendant or Defendants on Ground of Fed- eral Question. 193. Class Two; Removal by Nonresident Defendant or Defendants on Ground of Diverse Citizenship. 194. Class Three; Removal of a Separable Controversy Wholly Between Citizens of Different States. 195. Procedure on Removal Class One, Two and Three Petition for Re- moval to be Filed Before Appearance Day in State Court. 196. Bond on Removal in Classes One, Two and Three. 197. Duty of State Court in Such Cases. 198. Notice to Adverse Party in Such Cases. 199. Procedure After Removal in Classes One, Two, and Three. 200. Class Four; Removal on Ground of Prejudice. 201. Remanding Separable Controversy in Class Four. 202. Remanding upon Failure to Show Prejudice Class Four. 203. Remanding in Classes One, Two, Three and Four. 204. Common Carrier Employers' Liability Cases not Removable, nor for Property Damages, Unless in Excess of $3,000 Involved. 205. Class Five; Suits Between Citizens of a State Under Land Grants from Different States. 206. Class Six; Removal of Suits of Aliens Against Officers. 207. Class Seven; Removal of Civil Rights Cases. 208. Habeas Corpus Proceedings Where Civil Rights Denied, and Other Cases. 209. Class Eight; Removal in Cases Against Revenue or Congressional Officers. 210. Procedure on Removal Under Class Eight Cases Against Revenue or Congressional Officers. 211. Procedure After Removal in Class Eight. 212. Certiorari and Habeas Corpus Proceedings in Class Eight Suits Against Revenue or Congressional Officers. 213. Proofs of Records When Copies Refused by State Court Clerks. 214. Enforcement of Return of Record from State to Federal Courts. 215. Remand or Dismissal of Case Fraudulently or Improperly Removed. 216. Provisional Remedies of State Court Preserved Bonds Given in State Suit Valid on Removal. 217. Proceedings After Removal Generally. 190, Ch. 9 MANUAL OF FEDERAL PROCEDURE. 108 190. In General. There are eight classes of cases in which there may be a removal from the state to the federal court. Cases arising under the employers' liability act are specifically denied removal in the closing paragraph, 28, Jud. Code, quoted in 204, infra. Class one includes cases involving a federal question. These may be removed by the defendant or defendants therein without regard to his or their residence. ( 192, infra.} Class two includes cases based on diverse citizenship. These may be removed by a nonresident defendant or defendants. ( 193, infra.) Class three includes separable controversies between citizens of different states of either classes one or two. Thus any defendant with a separable controversy based on a federal question, or any nonresident defendant relying on diverse citizenship and with a separable controversy, may remove. ( 194, infra.) The procedure is the same for classes one, two and three. ( 195, et seq. infra.) Class four includes cases between a citizen of a state and a citizen of another state, where such nonresident defendant may remove on the ground of prejudice or local influence. (200, infra.) The time for removal and procedure in this class of cases differs from that in the first three classes of cases. All four classes of cases may be remanded to the state court if improperly removed, either under 28 or 37, Jud. Code. ( 203, infra.) Class five includes cases between citizens of the same state claim- ing under land grants from different states. ' These are removable by either party under 30, Jud. Code, and must involve in excess of $3,000 exclusive of interest and costs, although such amount is not required to give the federal court original jurisdiction. ( 205, infra.) Class six includes cases removable by defendant nonresident civil officers in suits brought against them, by aliens under 34, Jud. Code. (206, infra.) 109 REMOVAL OP "CAUSES, BTO. Ch. 9, 191 Class seven includes cases arising under the civil rights laws. These are removable by a defendant denied such civil rights under 31, Jud. Code. ( 207, infra.) Class eight includes cases against revenue or congressional offi- cers. These cases may be removed by them at any time before trial. (209, w/ra.) There are general provisions respecting proofs of state court records where copies are refused by the clerks of such court ( 213, infra) ; for enforcing the return of the record from the state court ( 214, infra) ; for preserving on removal attachment and sequestration liens, injunctional orders, bonds and undertak- ings (216, infra), and for proceedings after removal (217, infra). Remanding cases fraudulently or improperly removed, lacking jurisdictional grounds, may be done under 37, Jud. Code. (215, infra.) The changes made in the practice by the Judicial Code are very few. It is now required under 29, Jud. Code, what before was the general practice, that the petition for removal be verified. ( 195, infra.) The bond for removal is now conditioned to enter in the district court "within thirty days from the date of filing said petition, a certified copy of the record, etc." ( 196, infra), where formerly the condition was to enter suit "on or before the first day of the next regular session." The old practice of giving notice is now obligatory under 29, Jud. Code, requiring "written notice of said petition and bond" prior to filing same. ( 198, infra.) The forms given in this chapter are adapted from Desty's Fed- eral Procedure. 191. Jurisdiction First Four Classes of Removal Cases. 58, Jud. Code. "(Removal of suits from state to United States district courts.) 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 authority, of which the district courts of the United States are given original jurisdiction by this title, which may now be 191, Ch. 9 MANUAL OP FEDERAL PROCEDURE. 110 pending or which may hereafter be brought, in any state court, may be removed by the defendant or defendants therein to the district court of the United States for the proper district. Any other suit of a civil nature, at law or in equity, of which the district courts of the United States are given jurisdiction by this title, and which are now pending or which may here- after 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 controversy which is wholly between citizens of different states, and which can be fully determined as be- tween 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. And where a suit is now pending, or may hereafter be brought, in any state court, in which there is a controversy between a citizen of the state in which the suit is brought and a citizen of another state, any defendant, being such citizen of another state, may remove such suit into the district court of the United States for the proper district, at any time before the trial thereof, when it shall be made to appear to said district court that, from prejudice or local influence, he will not be able to obtain justice in such state court, or in any other state court to which the said defendant may, under the laws of the state, have the right, on account of such prejudice or local influence, to remove said cause : Provided, That if it further appear that said suit can be fully and justly determined as to the other defendants in the state court, without being affected by such prejudice or local influence, and that no party to the suit will be prejudiced by a separation of the parties, said district court may direct the suit to be remanded, so far as relates to such other defendants, to the state court, to be proceeded with therein. At any time before the trial of any suit which is now pending in any district court, or may hereafter be entered therein, and which has been removed to said court from a state court on the affidavit of any party plaintiff that he had reason to believe and did believe that, from prejudice or local influ- ence, 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, Ill REMOVAL OP CAUSES, ETC. Ch. 9, 192 unless it shall appear to the satisfaction of said court that said party will not be able to obtain justice in said state court, it shall cause the same to be remanded thereto. Whenever any cause shall be removed from any state court into any district court of the United State:;, and the district court shall decide that the cause was improperly removed, and order the same to be remanded to the state court from whence it came, such remand shall be immediately carried into execution, and no appeal or writ of error from the decision of the district court so remanding such cause shall be allowed: Provided, That no case arising under an act entitled, "An Act Relating to the Liability of Common Carriers by Railroad to Their Employees in Certain Cases," approved April twenty-second, nineteen hundred and eight, or any amendment thereto, and brought in any state court of competent jurisdiction, shall be removed to any court of the United States." (36 Stats. 1094.) "And provided further, That no suit brought in any State court of competent jurisdiction against a railroad company, or other corporation, or person, engaged in and carrying on the business of a common carrier, to recover damages for de- lay, loss of, or injury to property received for transportation by such common carrier under section twenty of the Act to regulate commerce, approved February fourth, eighteen hun- dred and eighty-seven, as amended June twenty-ninth, nine- teen hundred and six, April thirteenth, nineteen hundred and eight, February twenty-fifth, nineteen hundred and nine, and June eighteenth, nineteen hundred and ten, shall be removed to any court of the United States where the matter in contro- versy does not exceed, exclusive of interest and costs, the sum or value of $3,000." (38 Stats. 278 ; 5 Fed. Stats. Ann., 2d ed., p. 16 ; 1 U. S. Comp. Stats. 1916, 1010, p. 841.) 192. Class One; Removal by Defendant or Defendants on Ground of Federal Question. Cl. 1,28, Jud. Code (above quoted in full). "Any suit of a civil nature, at law or in equity, arising under the Con- stitution or laws of the United States, or treaties made, or which shall be made, under their authority, of which the dis- trict courts of the United States are given original jurisdic- tion by this title, which may now be pending or which may 193-194, Ch. 9 MANUAL OF FEDERAL PROCEDURE. 112 hereafter be brought, in any state court, may be removed "by the defendant or defendants therein to the district court of the United States for the proper district." 193. Class Two ; Removal by Nonresident Defendant or De- fendants on Ground of Diverse Citizenship. Cl. 2, 28, Jud. Code (quoted in full supra, 191). " . . . 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 here- after 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. ..." 194. Class Three; Removal of a Separable Controversy Wholly Between Citizens of Different States. Any defendant or defendants with a separable controversy wholly between citizens of different states may remove same from the state to the federal court, in cases of which the district court might have taken juris- diction originally on the ground of a federal question. Likewise any nonresident defendant or defendants may remove his or their separable controversies where the district courts might have taken jurisdiction originally on account of diverse citizenship. (Aliens may not remove a separable controversy.) Both classes of cases are included in the following statutory provision: Cl. 3, 28, Jud. Code (quoted in full supra, 191). "... And when in any suit mentioned in this section there shall be a controversy which is wholly between citizens of different states, and which can be fully determined as between them, then either one or more of the defendants actually interested in such controversy may remove said suit into the district court of the United States for the proper district. ..." . To constitute a separable controversy, the case must be one capable of separation into parts, so that in one of the parts a con- troversy will be presented with citizens of one or more states, on 113 REMOVAL OF CAUSES, BTO. Ch. 9, 194 one side, and citizens of other states, on the other, which can be fully determined without the presence of the other parties to the suit as it has been begun. 1 It must appear from the record that, upon the allegation of plaintiff's petition, there arises in the cause a controversy capable of separation from the other issues or ques- tions presented by the petition, which, when separated, would be between citizens of different states. 2 When the cause of action is single, the fact that different defendants have different defenses does not create separable controversies. 8 In Bates v. Carpentier, 98 Fed. 452, the court said "that, in order to justify a removal of a cause on the ground of a separate controversy between citizens of different states, the whole subject matter of the suit must be capable of being finally determined as between them, and complete relief afforded as to the separate causes of action, without the presence of others, originally made parties to the suit." In Goldsmith v. Gilliland, 24 Fed. 154, 10 Sawy. 606, it was de- cided that a suit to quiet title to real property presented a subject matter capable of such separable determination, and, ' ' where a num- ber of persons claim undivided interests in real property adversely to one in possession of the same, the latter may maintain a suit to quiet his title against any or all of such claims, and neither of said persons or adverse claimants is a necessary party to a suit for that purpose against the other." Where an action is brought by one plaintiff against several, de- fendants, not because they claim any joint interest or are sub- ject to any joint liability in respect to the subject matter of the action, but merely for convenience, it will generally be capable of resolution into separable controversies betjveen the plaintiff and the individual defendants. 4 A bill in equity to quiet title 1 Fraser y. Jennison, 106 U. 8. 191, 27 L. Ed. 131, 1 Sup. Ct. 171; Ayres v. Wiswall, 112 U. S. 187, 28 L. Ed. 693, 5 Sup. Ct. 90. 2 Stanbrough v. Cook, 38 Fed. 369, 3 L. R. A. 400; Barth v. Coler, 60 Fed. 466, 9 C. C. A. 81; Thurber v. Miller, 67 Fed. 371, H C. C. A. 432. 3 Bobbins v. Ellenbogen, 71 Fed. 4, 18 C. C. A. 83. 4 Bates v. Carpentier, 98 Fed. 452. Manual 8 194, Ch. 9 MANUAL OP FEDERAL PROCEDURE. 114 to real property, brought under the above conditions, has been decided to include a separable controversy with each of the de- fendants, so that, if one of them is a nonresident, he may remove the suit. 5 The fact that separate answers are filed, which raise separate issues in defending against one cause of action, does not create separable controversies, within the meaning of that term as used in the statute. They simply present different questions to be settled in determining the rights of the parties in rjespect to the one cause of action for which the suit was brought. 6 In Shainwald v. Lewis, 108 U. S. 158, 27 L. Ed. 691, 2 Sup. Ct. 385, the suit was brought for the dissolution and settlement of an alleged partnership. The court said there was no separable or re- movable controversy. "The main dispute," said the court, "is about the existence of the partnership. All the other questions in the case are dependent on that. If the partnership is established, the rights of the defendants are to be settled in one way ; if not, in another. There is no controversy in the case which now can be separated from that about the partnership, and fully determined by itself." In Fidelity Ins. etc. Deposit Co. v. Huntington, 117 U. S. 280, 29 L. Ed. 898, 6 Sup. Ct. 733, the suit was a creditors' bill to subject encumbered property to the payment of the creditors' judgment, by sale and distribution of the proceeds among lienholders accord- ing to their priority. One lienholder sought to remove the suit, as to him, to a United States court, upon the ground that as to him there was a wholly separable controversy. The court said: "There is but a single cause of action, and that is the equitable execution of a judgment against the property of the judgment debtor. This cauge of action is not divisible. Each of the defend- 6 Field v. Lownsdale, Deady, 288, Fed. Gas. No. 4769; Goodenough v. Warren, 5 Sawy. 494, Fed. Cas. No. 5534; Stanbrough v. Cook, 38 Fed. 369, 3 L. B. A. 400. 6 Hyde v. Euble, 104 U. S. 407, 26 L. Ed. 823; Winchester v. Loud, 108 U. S. 130, 27 L. Ed. 677, 2 Sup. Ct. 311; Shainwald v. Lewis, 10S U. S. 158, 27 L. Ed. 691, 2 Sup. Ct. 385; Fidelity Ins. etc. Deposit Co. v. Hunt- ington, 117 U. S. 280, 29 L. Ed. 898, 6 Sup. Ct. 733; Graves v. Corbin, 132 U. S. 571, 33 L. Ed. 462, 10 Sup Ct. 196; Torrence v. Shedd, 144 U. S. 527, 36 L. Ed. 528, 12 Sup. Ct. 726. 115 REMOVAL OP CAUSES, ETO. Ch. 9, 194 ants may have a separate defense to the action, but we have held many times that separate defenses do not create separate contro- versies, within the meaning of the removal act." In Graves v. Corbin, 132 U. S. 571, 33 L. Ed. 462, 10 Sup. Ct. 196, the suit was a bill in equity filed in a state court by a judgment creditor of a partnership to reach its entire property. Certain judgments confessed by the firm, on which levies had been made, were attached for fraud. One of the judgment creditors removed the cause to the circuit court upon the ground that as to him there was a separable controversy. After a final decree for the plaintiff, the supreme court, on an appeal therefrom, held that the case was not removable. A suit to try title to land is not a separable controversy. 7 An action to foreclose a mortgage where there are several defendants is not a separable controversy. 8 The rule as illustrated by these cases in concise form is that if a nonresident party has an interest in a controversy which is sepa- rate and distinct, and does not necessarily involve the interest of the other defendants in the issue, or the other party on the same side, he can remove the whole case into the federal court. On the other hand, if the interests of the other party are so identified and so mixed up that they must and should be decided together, and depend on the finaj decree, which must depend upon ana involve the rights of both parties, then it cannot be removed when one of the parties is a citizen of the same state with the plaintiff or de- fendant. 9 Another class of cases in which the question of separable contro- versy arises is where there is a joint and several liability. Where the plaintiff's cause of action is joint and several, he has the option T Lomax v. Foster Lumber Co., 174 Fed. 959, 99 C. C. A. 463. 8 Thompson v. Dixon, 28 Fed. 6. 9 Wilson v. St. Louis etc. Ry. Co., 22 Fed. 3; affirmed, St. Louis etc. By. Co. v. Wilson, 114 U. S. 60, 29 L. Ed. 66, 5 Sup. Ct. 738; Central B. Co. v. Mills, 113 U. S. 249, 28 L. Ed. 949, 5 Sup. Ct. 456; Louisville & N. B. Co. v. Ide, 114 U. S. 52, 29 L. Ed. 63, 5 Sup. Ct. 735; Putnam v. Ingraham, 114 IT. S. 57, 29 L. Ed, 65, 5 Swp. Ct. 746; Pirie v. Tvedt, 115 U. S. 41, 29 L. Ed. 331, 5 Sup. Ct. 1034, 1161; Crump v. Thurbor, 115 U. S. 56, 29 L. Ed. 328, 5 Sup. Ct. 1154; Price v. Foreman, 12 Fed. 801, 11 Biss. 328; Mitchell v. Tillotson, 12 Fed. 737, 11 Biss. 325; Winchell v. Carle, 24 Fed. 865. 194, Ch. 9 MANUAL OP FEDERAL PROCEDURE. 116 whether to sue the defendants individually or to join them in one action. If he elects to pursue the latter course, his choice determines the character of the suit, and no one of the defendants can treat the suit as it concerns him as several, for the purpose of a removal to the federal court. 10 In Pirie v/Tvedt, 115 TJ. S. 41, 29 L. Ed. 331, 5 "Sup. Ct. 1034, 1161, the court said: "The cause of action is several as well as joint, and the plaintiffs might have sued each defendant separately, or all jointly. It was for the plaintiffs to elect which course to pursue. They did elect to proceed against all jointly, and to this defendants are not permitted to object. The fact that a judgment in the action may be rendered against a part of the defendants only does not divide a joint action in tort into separate parts, any more than it does a joint action in contract. ' ' A defendant has no right to say that an action shall be several which the plaintiff elects to make joint. A separate defense may defeat a joint recovery, but it cannot deprive a plaintiff of his right to prosecute his own suit to final determina- tion in his own way. The cause of action is the subject matter of the controversy; and that is for all purposes of the suit, what- ever the plaintiff declares it to be in his pleadings. 11 And if a person has a cause of action on which he may properly sue either one or two parties, and he chooses to sue both, he may do so though his motive in joining them is to prevent a removal to a federal court. That is, the motive is not considered. 12 In the case of Deere, Wells & Co. v. Chicago, M. & St. P. R. Co., 85 Fed. 876, it was held that an action for damages against a railroad company incorporated by another state, and one of its section fore- men, who is a citizen of the same state with plaintiff, charging them 10 Brown v. Core Bros. & Co., 75 Fed. 689; Boyd v. Gill, 19 Fed. 145, 21 Blatchf. 543; Western Union Tel. Co. v. Brown, 32 Fed 337; Mutual Reserve Fund Life Assn. v. Farmer, 77 Fed. 929, 23 C. C. A. 574; Louisville & N. R. Co. v. Ide, 114 U. S. 52, 29 L. Ed. 63, 5 Sup. Ct. 735; Pirie v. Tvedt, 115 U. S. 41, 29 L. Ed. 331, 5 Sup. Ct. 1034, 1161; Little v. Giles, 118 U. S. 596 30 L. Ed. 269, 7 Sup. Ct. 32; Torrence v. Shedd, 144 U. S. 527, 36 L. Ed. 528, 12 Sup. Ct. 726. 11 Louisville & N. R. Co. v. Ide, supra; Sloane v. Anderson, 117 U. S. 275, 29 L. Ed. 899, 6 Sup. Ct. 730; Little v. Giles, supra; Thorn Wire Hedge Co. v. Fuller, 122 U. S. 535, 30 L. Ed. 1235, 7 Sup. Ct. 1265. 12 Deere, Wells & Co. v. Chicago, M. & St. P. R. Co., 85 Fed. 876. 117 REMOVAL OP CAUSES, ETC. Ch. 9, 195 jointly with setting out a fire on the railroad right of way to clear it of dry grass and weeds, and negligently permitting it to spread to plaintiff's premises, does not disclose a separable controversy which would enable the railroad company to remove the cause. In one action against a railroad company for negligence in han- dling a train and against a Pullman company for negligence in con- structing the berth out of which the plaintiff was thrown, the court said: "In the first count of the declaration there is a separate and distinct cause of action stated against each one of the defendants, and neither one of the defendants could be held liable on the facts specifically averred against the other." The controversy is sepa- rable. 13 195. Procedure on Removal Class One, Two and Three Petition for Removal to be Filed Before Appearance Day in State Court. Cl. 1, 29, Jud. Code (Part new, part re-enacting 25 Stats. 433}. "Whenever any party entitled to remove any suit men- tioned in the last preceding section, except suits removable on the ground of prejudice or local influence, may desire to re- move 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 be- fore the defendant is required by the laws of the state or the rule of the state court in which such suit is brought to answer or plead to the declaration or complaint of the plaintiff, for the removal of such suit into the district court to be held in the district where such suit is pending. . . . " 14 (36 Stats. 1095 ; 5 Fed. Stats. Ann., 2d ed., p. 235 ; 1 U. S. Comp. Stats. 1916, 1011, p. 954.) 13 Batey v. Nashville etc. Ry., 95 Fed. 368. See, also, Dougherty v. Yazoo etc. R. Co., 122 Fed. 205, 58 C. C. A. 651; Fergason v. Chicago etc. Ity. Co., 63 Fed. 177; Hartshorn v. Atchison etc. R. Co., 77 Fed. 9; Cokcr v. Monaghan Mills, 110 Fed. 803; Lewis v. Cincinnati etc. Ry. Co., 192 Fed. 654; Veariel v. United Engineering etc. Co., 197 Fed. 877; Gustafson v. Chicago etc. Ry. Co., 12S Fed. 85; Yeates v. Illinois Cent. R. Co., 137 Fed. 943; Henry v. Illinois Cent. R. Co., 132 Fed. 715. u Consent of counsel does not give district court jurisdiction, In re Foley, 76 Fed. 390. But facts may be admitted which will give the court 195, Ch. 9 MANUAL OP FEDERAL PROCEDURE. 118 The party removing is also required to file a bond and tran- script and give notice as set out in the following sections : FORM 1. PETITION FOR REMOVAL WHERE CAUSE INVOLVES A FEDERAL QUESTION. In the District Court of, etc., State of Idaho. [Title of Cause.] To the Honorable Judge of the Court Aforesaid: Your petitioners, defendants in the above-entitled action, respectfully repre- sent and show to yourhonorable court: That this is a civil action brought in this court in pursuance of an adverse claim, filed in the United States land office at Coeur d'Alene city, state of Idaho, by the plaintiff herein, to the application of the petitioners for a United States patent to a certain parcel of mineral land, situated in Shoshone county, in said state. That said action is in pursuance of the provisions of 2326 of the Revised Statutes of the United States, for the determination of contro- versies arising between claimants to the right of possession of mineral lands claimed for patent by the parties thereto. Your petitioners allege that they are each citizens of the United States and residents and citizens of the county of Shoshone, state of Idaho, and that the Shoshone Mining Company is a corporation doing business and claiming to be oiganized and existing under the laws of the state of Idaho. That the value of the premises described in the complaint, exclusive of in- terest and costs, exceeds the sum of three thousand ($3,000) dollars. That this action is a special action created and authorized by the statutes of the .United States, to facilitate the sale and disposition of the public min- eral lands by the land department, and involves the right of possession con- ferred b> said statutes on claimants of the same who desire to obtain patents for the lands claimed by them, and is therefore within the jurisdiction of the courts of the United States. That this action involves the questions of what is a lawful location of a min- eral claim; what discovery of mineral i"S required to support such location, and what rights follow such location, discovery, and attempted appropriation, and the proper construction of the acts of Congress relating thereto. That your petitioners are claimants of the title to the premises in contro- versy and the plaintiff is an adverse claimant thereto under the statute. jurisdiction, Pittsburg etc. R. Co. v. Ramsey, -22 Wall. (U. S.) 322, 22 L. Ed. 823; Hyde v. Victoria Land Co., 125 Fed. 970. In general, Fayette Title & Trust Co. v. Maryland, P. & W. V. Tel. & Tel. Co., 180 Fed. 928. Petition, time for filing, Lewis v. Cincinnati, N. O. & T. P. Ry. Co., 192 Fed. 654. Grounds for remand, Western Union Tel. Co. v. Louisville & N. R. Co. et al., 201 Fed. 932. Procedure, Goins v. Southern Pac. Co., 198 Fed. 432. Application, notice, Cayce v. Southern R. Co. ? 195 Fed, 786, 119 REMOVAL OF CAUSES, ETC. Ch. 9, 195 Your petitioners herewith present a good and sufficient bond as provided by the statute in such cases, that they will enter in such district court for the Northern Division of the District of Idaho, within thirty days from the filing of this petition a certified copy of the record in this suit and for the payment of all costs which may be awarded by the said court, if the said district court shall hold that this suit was wrongfully or improperly removed thereto. (If special bail was originally requisite in said cause add here, "and shall then and there appear and enter special bail in said suit.") Your petitioners therefore pray that this court proceed no further herein, except to make the order of removal as required by law and to accept the bond presented herewith, and direct a transcript of the record herein to be made for said court as provided by law, and as in duty bound your petitioners will ever pray. State of , | ; 3 County of VW and XY, being each duly sworn according to law, severally depose and say: I am one of the petitioners in the above-written petition and have read said petition, and the same is true of my own knowledge, except such matters as are therein stated on information and belief, and as to such statements I be- lieve it to be true. Subscribed and sworn to, etc. FORM 2. VERIFICATION BY ATTORNEY. State of County of VP, being first duly sworn, on oath says that he is one of the attorneys of the defendant in the above-entitled cause and of the petitioner named in the foregoing petition ; that he has read the same and believes the same to be true, and affiant further says that said petitioner is absent from and is a nonresi- dent of the county of , state of , in which said suit is brought, and that affiant makes this affidavit for the reason that the defendant is absent from and is a nonresident of the said county of , in which said suit is brought. VP. Sworn, etc. FORM 3. PETITION FOR REMOVAL INVOLVING FEDERAL QTTESTION. In the Superior Court, etc. State of California. [Title of Cause.] Now at the time of filing his first appearance in said entitled cause comes t.ho said defendant and presents to this honorable court his petition for re- 195, Ch. 9 MANUAL OF FEDERAL PROCEDURE. 120 moval of this suit to the district court of the United States, in and for the northern district of California, held at the city of San Francisco, and as grounds therefor respectfully shows: First. That as shown by plaintiff's complaint on file herein, this suit arises under the laws of the United States providing for the disposition and sale of the public gold-bearing mineral lands. Second. That each of the plaintiffs is and for more than five years last past has been a citizen of the state of California. Third. That the defendant is and for more than five years last past has been a citizen of Minnesota. Fourth. That the lands in controversy in this suit are of the value of $3,000. [Conclusion as in Form 1.] [Verification as in Form 1 or 2.] FORM 4. PETITION FOE REMOVAL INVOLVING FEDERAL QUESTION. In the Superior Court of, etc. State of California. [Title of Cause.] Your petitioners respectfully show that they are the defendants in this ac- tion, which is of a civil nature, in equity, and that the matter or amount in dispute exceeds the sum of $3,000, -exclusive of interest and costs. That said action is in equity, of a civil nature, and arises under the constitu- tion and laws of the United States. That the defendants, at and about the time of the commencement of the above-entitled action, were in the possession and occupancy of the mining ground known as the St. Lawrence Mine, near Moore's Flat, in Nevada county, state of California, and were engaged in working said property by the hydraulic process under a license or permit duly and regularly made and issued to the defendant Ah Wing as the owner of the property by the commissioners appointed and acting under and in pursuance of an act of the Congress of the United States, approved March 3, 1893, entitled, "An Act to Create the Cali- fornia Debris Commission, and to Regulate Hydraulic Mining in the State of California." That said mining was carried on by said defendants in conformity to the license or permit aforesaid, and the rules, regulations, and requirements of said commission, and the provisions of said act of Congress. That said action is brought to restrain and enjoin the defendants and each and all of them from working said mine by the hydraulic process; that the question of the force and effect of the said act of Congress and of the power and authority of said debris commission under said act of Congress, and of the legal effect of the license or permit granted by said commission to the de- fendant Ah Wing, and other acts performed by said commission relating to the subject matter of this action, are involved in said action ; that said defense rests mainly upon said act of Congress and upon the power and authority of 121 REMOVAL OP CAUSES, ETC. Ch. 9, 195 the said commission thereunder, as will more fully appear from the complaint on file, and from the answer of the defendants thereto, filed herewith, to which reference is hereby made. [Conclusion as in Form 1.] [Verification as in Form 1 or 2.] FORM 5. PETITION FOE REMOVAL CITIZENS or DIFFERENT STATIS. (Nonresident Plaintiff v. Nonresident Defendant.) In the Superior Court of, etc. State of Washington. [Title of Cause.] To the Honorable Judges of the Above-entitled Court: Comes now your petitioner, the above-named defendant, by his attorneys, and respectfully represents to this honorable court: 1. That on the day of , , the above-named plaintiff filed a com- plaint in the superior court of King county, state of Washington, praying for a judgment against the defendant upon a promissory note for the sum of three thousand ($3,000) dollars, with interest at 10 per cent per annum from , with costs, and attorneys' fees of 5 per cent of the amount due. - 2. That on said date, and immediately after filing said complaint, the said plaintiff caused to be sued out a writ of attachment, and caused said writ of attachment to be delivered to the sheriff, who thereupon levied upon property of your petitioner in King county, Washington. 3. Your petitioner further avers that the time has not elapsed wherein your petitioner is allowed under the practice and laws of the state of Washington and the rules of said court to appear, plead, demur, or answer said complaint. 4. Your petitioner further avers that at the time of the commencement of said suit, and ever since then, and at the present time the plaintiff in said ac- tion, the Harrisburg Trust Company, was and is a corporation organized and existing under and by virtue of the laws of the commonwealth of Pennsylvania, and was a citizen and resident of the state of Pennsylvania, having its prin- cipal place of business at the city of Harrisburg in said state, and the defend- ant, at the time of the commencement of said suit was, and ever since has been, and still is, a citizen of the state of Wisconsin and a resident thereof, residing at the city of Oconomowoc in said state of Wisconsin. 5. Your petitioner further avers that this is a controversy between citizens of different states and more than three thousand ($3,000) dollars, exclusive of interest and costs, is involved therein. [Conclusion as in Form 1.] [Verification as in Form 1 or 2.] 195, Ch. 9 MANUAL OP FEDERAL PROCEDURE. 122 FORM 6. PETITION FOE REMOVAL CITIZENS OP DIFFERENT STATES. (Resident Plaintiff v. Nonresident Defendant.) " In the Superior Court of, etc. State of California. [Title of Cause.] To the Honorable Superior Court of Humboldt County, State of California. The petition of and defendants in the above-entitled action, re- spectfully shows to this honorable court. That your petitioners are defendants in the above-entitled action. That said action has been commenced against them in said court by said plaintiff, and that said action is of a civil nature. That said plaintiff, in his complaint herein, claims in substance that on the day of , , your petitioner entered into a contract in writing with plaintiff for the purchase and acquisition of certain timber lands situate in said county and state, and that in such purchase and acquisition said plaintiff rendered certain services for defendants upon an agreed price, amounting to the sum of $5,479.46, for which he demands judgment against said defendants. That your petitioners dispute said claim and deny all liability under the con- tract set out in the complaint herein. That the matter in dispute in this action exceeds the sum of three thousand dollars, exclusive of interest and costs. That the controversy in this action and every issue of fact and law therein is wholly between citizens of different states, and which can be fully deter- mined as between them that is to say, the plaintiff, , is now, and was at the time of the filing of the complaint in this action, a citizen and resident of the state of California, and the defendants, and , were then and still are citizens and residents of the state of New York. That the time for your petitioners, as defendants in this action, to answer or plead to the complaint in said action has not yet expired and will not so ex- pire until the day of , , and your petitioners have not yet filed any pleading or in any way appeared therein. [Conclusion as in Form 1.] [Verification as in Form 1 or 2.] FORM 7. PETITION FOE REMOVAL^ (Resident Plaintiff v. Nonresident Defendant and Resident Defendant Who has Disclaimed All Interest in the Action.) In the Superior Court of, etc. State of California. [Title of Cause.] The petition of , one of the above-named defendants, shows to the court as follows: That the above suit was begun against your petitioner, and , in the superior court of the city and county of San Francisco, state of California, by 123 REMOVAL OP CAUSES, ETC. Ch. 9, 195 the filing of a complaint and the service of a summons and copy of the com- plaint therein, on the day of , . That the defendant, , filed his answer in said cause on the day of , . That your petitioner has not yet filed his answer; but that, as to your petitioner, said cause is now pending on his motion to strike out portions of the complaint herein; that said cause has not been tried. That at the time said suit was begun, and at the present time, the plaintiff was and is a citizen and resident of the state of California, and the defendant, , was and is a citizen and resident of the state of Nevada; and that the said defendant, , was and is a citizen and resident of the state of California. That the matters in dispute in said suit, and for which said suit is brought, exceed the sum of three thousand dollars, exclusive of costs. That the defend- ant, , has no interest in said action or the matters in dispute therein, or in any of the property therein mentioned, and has filed his answer disclaiming any interest of any name or nature in the same, or in the property described therein, and the same is wholly and solely the property of the defendant, . [Conclusion as in Form 1.] [Verification as in Form 1 or 2.] FORM 8. PETITION FOR REMOVAL* (Citizens v. Aliens.) In the Superior Court of, etc. State of California. [Title of Cause.] The petition of , one of the above-named defendants, shows to the court as follows: That the above suit was begun against your petitioners, , and , in the superior court of the county of Marin, state of California, by the filing of a complaint, and the service of a summons and a copy of the complaint herein on the defendants. That your petitioners have not yet filed their answer, but that, as to your petitioners, said cause is now pending, and that said cause has not been tried. That at the time said suit was begun, and at the present time, the plaintiffs are citizens and residents of the state of California, and the defendants are aliens and subjects of the United Kingdom of Great Britain and Ireland; the said defendant, , being a resident of the county of Marin, and the said residents of the county of Alameda, state of California. That the matters in dispute in said suit, and for which said suit is brought, exceed the sum of three thousand dollars, exclusive of interest and costs. [Conclusion as in Form 1.] [Verification as in Form 1 or 2.] 195, Ch. 9 MANUAL OF FEDERAL PROCEDURE. 124 FORM 9. PETITION FOR REMOVAL FROM STATE COURT TO DISTRICT COURT. (Resident Plaintiff v. Alien Defendant.) In the Superior Court of, etc. State of Washington. [Title of Cause.] To the Honorable, the Superior Court of the State of Washington, in and for the County of Jefferson, and to the Honorable Judge Thereof: The petition of , the defendant in the above-entitled action, respect- fully shows: I. That said action is a suit of a civil nature at common law, of which the district court of the United States has original jurisdiction, and has been brought and is now pending in this honorable court, and has not yet been tried, nor has the time at or before which the defendant, this petitioner, is required, by laws of the state of Washington, or any rules or rule of this honorable court, to answer or plead to the complaint of plaintiff elapsed, and the matter in dispute in said suit exceeds, exclusive of interest and costs, the sum and value of three thousand dollars, and said suit is a con- troversy between the plaintiff, who, at the time of the commencement of said suit, was and now is a citizen of the state of Washington, and this de- fendant, who is not a citizen of the state of Washington, but was, at the time of the commencement of said suit, and now is, a foreign citizen and subject; that is to say, a citizen of the British Empire and a subject of her Britannic Majesty, Queen Victoria, and that there are no other parties to said suit. n. That by reason of the premises this petitioner, said defendant, desires and is entitled to have said suit removed from said superior court of the state of Washington into the district court of the United States for the proper district at this time. in. That the district court of the United States for the ninth circuit, and. in and for the northern division of the district of Washington, holding terms at the city of Seattle, is the district court of the United Stafes for the proper district, being the district court of the United States held in the district where said suit is pending. [Conclusion as in Form 1.] [Verification as in Form 1 or 2.] 125 REMOVAL OF CAUSES, ETC. Ch. 9, 195 FORM 10. PETITION FOR REMOVAL SEPARABLE CONTROVERSY. In the Superior Court of, etc. State of California. [Title of Cause.] To the Honorable, the Superior Court of the City and County of San Fran- cisco, State of California: The petition of , one of the above-named defendants, shows as follows: Your petitioner shows to this honorable court that he is one of the defend- ants in this suit, which is of a civil nature, and that the matter or amount in dispute in this cause exceeds the sum or value of three thousand dollars, ex- clusive of interest and costs. That the controversy herein is between citizens of a state and of a foreign state; that the plaintiff, , was at the time of the commencement of this suit, and still is, a citizen of the state of California, residing in the county of Sonoma, in said state, and that your petitioner, , was, at the time of the commencement of this suit, and for seventeen years last past has been, a resi- dent of the city of Denver, in the state of Colorado, and that your petitioner desires to remove this suit before the trial thereof into the next district court of the United States to be held in the northern district of California. Your petitioner further shows that the causes of action that the plaintiff herein has against the two defendants for damages for the death of are separable controversies. That on the day of , , your petitioner was engaged as an in- dependent contractor to do certain work in the construction of a building on the lot of land situate at the southwest corner of Market and Third streets; that in the prosecution of said work it became and was necessary to place a certain piece of timber in an upright position, so that one end of said timber was against the under part of said cornice, and the other end was on the roof of the building on the lot next adjoining on the west. That the defendant, , is the owner of said last-mentioned lot. That it is claimed by the plain- tiff that the aforesaid piece of timber fell from its place and struck the said , who was on the street beneath, and so injured him that he subsequently died. That the cause of action that the plaintiff, has, if she has any, against your petitioner, is for his negligence, through his agents and servants, in im- properly placing the said piece of timber. That the cause of action that plain- tiff, , has, if she has any, against the defendant, , is for maintaining a nuisance upon his said premises. That therefore the said two causes of ac- tion are separable. [Conclusion as in Form 1.] [Verification as in Form 1 or 2.] 196, Ch. 9 MANUAL OF FEDERAL PROCEDURE. 126 FORM 11. PETITION FOR REMOVAL, SEPARABLE CONTKOVERSIES AFTER DISMISSAL OF SUIT AGAINST OTHER DEFENDANTS. [Title of Court and Cause.] To the Honorable, the Court of State of . JTour petitioner respectfully shows that it is one of the defendants in the above-entitled suit, and that the matter and amount in dispute in said suit ex- ceeds, exclusive of interest and costs, the sum or value of three thousand dollars. That there is in said suit a controversy which is wholly between citizens of different states, and which can be fully determined as between them, to wit, between your petitioner, the Ry. Co., defendant in said suit, who avers that it was at the commencement of this suit, and still is, a corporation organ- ized under the laws of the states of Virginia and West Virginia, and of no other state, and that it was then and still is a citizen and resident of the states of Virginia and West Virginia, and of no other state, and that it was not then, and is not now, a resident or citizen of the state of Kentucky and the plain- tiff, , who was, at the commencement of this suit, and still is, a resident and citizen of the state of Kentucky. Your petitioner further says that the said defendants, , and , are all and every of them, citizens and resi- dents of the state of Kentucky, and that they are fraudulently and improperly joined as parties defendant for the sole purpose of defeating the right of peti- tioner to remove to the United States circuit court. That because of said joinder of said and , being citizens of the same state as said plaintiff, said cause was remanded to the state court. Your petitioner says that the said suit as to said and was, on the day of , dismissed, that the said cause is now, for the first time, pending as to the said alone. [Conclusion as in Form 1.] [Verification as in Form 1 or 2.] 196. Bond on Removal in Classes One, Two and Three. Part 29, Jud. Code. ' ' Whenever any parties entitled to remove any suit mentioned in the preceding section, except suits removable on the ground of prejudice or local influence, . . . (he) 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 im- properly removed thereto, and also for their appearing and entering special bail in such suit if special bail was originally requisite therein." (See 195, supra.') 127 REMOVAL OP CAUSES, ETC. Ch. 9, 196 FORM 12. BOND ON REMOVAL. [Title of State Court and Cause.] Know all men by these presents, that we, XY and Z, as principals, and M and N, as sureties, residents, and - of the county of - , state of - , are held and firmly bound unto AB, plaintiff in the above-entitled cause, his successors and assigns, in the sum of five hundred ($500) dollars, lawful money of the United States of America, for the payment of which well and truly to be made, we and each of us bind ourselves, and each of us, our heirs, executors, and administrators, jointly and severally, by these presents. The conditions of this obligation are such that : Whereas, the said XY and Z have applied by petition to the (superior) court of the state of - , in and for the county of - , for the removal of a cer- tain cause therein pending wherein AB is plaintiff and the said XY and Z are defendants, to the district court of the United States for the district of - , - division, for further proceedings on grounds in the said petition set forth, and that all further proceedings in said action in said - court be stayed. Now, therefore, if your petitioners, the said XY and Z shall enter in said district court of the United States for the district of - , aforesaid, within thirty days from the date of filing said petition, a certified copy of the record in such suit, and shall pay or cause to be paid all costs that may be awarded therein by said district court of the United States if said court shall hold that said suit was wrongfully or improperly removed thereto, [Note. If special bail was originally requisite in said cause add here: "And shall then and there appear and enter special bail in said suit"], then this obligation shall be voidj otherwise shall remain in full force and effect. Signed, subscribed and sworn, etc. Sureties' justification. f - , 1 of - > ) State of County M and N, the sureties named in the foregoing bond, being first duly sworn, each for himself, deposes and says as follows: I am the same person whose name is subscribed to the 'foregoing bond, and I state I am a householder and resident of the county and state aforesaid, and that I am worth the sum of five hundred ($500) dollars named therein as the penalty thereof, over and above all my just debts and liabilities, exclusive of property which is exempt from execution. M. N. Subscribed and sworn, etc. 197-198, Ch. 9 MANUAL OP FEDERAL PROCEDURE. 128 197. Duty of State Court in Such Cases. Part 25, Jud. Code. " ... It shall then be the duty of the state court to accept said petition and bonu and proceed no further in such suit." 198. Notice to Adverse Party in Such Cases. Part 29, Jud. Code. "... Written notice of said peti- tion and bond for removal shall be given the adverse party or parties prior to filing the same. ? ' FORM 13. NOTICE OF PETITION AND BOND FOE ORDER OF REMOVAL* [Title of State Court and Cause.] To Messrs. P and Q, Attorneys for Plaintiff: Please take notice that the defendants will on , the day of , , at 10 o'clock, A. M., or as soon thereafter as counsel can be heard, move the court for an order removing said cause to the district court of the United States for the district of in accordance with the petition and bond of defendants, copies of which are hereto attached. Dated the day of , . , Attorney for Defendants. FORM 14. ORDER or REMOVAL. [Title of State Court and Cause.] This cause coming on for hearing upon petition and bond of the defendant herein for an order transferring this cause to the United States district court for the district of , division, and it appearing to the court that the defendant has filed his petition for such removal in due form of law, and that the defendant has filed his bond duly conditioned, with good and sufficient sureties, as provided by law, and that defendant has given plaintiff due and legal notice thereof, and it appearing to the court 'that this is a proper cause for removal to said district court. Now, therefore, said petition and bond are hereby accepted and it is hereby ordered and adjudged that this cause be and it hereby is removed to the United States district court for the district of , division, and the clerk is hereby directed to make up the record in said cause for transmission to said court forthwith. Done in open court, this day of , . , Judge. 129 REMOVAL OF CAUSES, ETC. Cll. 9, 199 FORM 15. CLERK'S CERTIFICATE WITH RECORD. [Title of State Court and Cause.] State of , County of I, , county clerk of said county of , and ex-officio clerk of the su- perior court in and for said county, hereby certify the above and foregoing to be a full, true, and correct copy of the record, and the whole thereof, in the above-entitled suit heretofore pending in said superior court, being the suit No. , wherein AB is plaintiff and XY are defendants, said record consist- ing of the complaint, filed by said plaintiff in said suit on the day of , ; the summons and return thereon, filed in said suit on the day of , [here add any other proceedings that may have been filed] the petition for removal of said suit to the United States district court, filed by said defendant in said suit on the day of , the bond for removal, the notice of petition and bond, and the order of removal of said suit to said United States district court, entered of record in said suit on the day of , , all as appears on file and of record in my office. In testimony, etc. [Seal] , Clerk. FORM 16. NOTICE OP REMOVAT/.. In the District Court of, etc., of the United States. [Title of Cause.] You and each of you will please take notice that on the day of , , the above-entitled cause was duly transferred from the court of the county of , state of , to the district court of the United States, in and for the district of , and that the record in said cause has this clay been duly filed in the said United States district court. Dated , . P&Q, Attorneys for Defendant. To the above-named plaintiff and to Messrs. - - and , Attorneys for Plaintiff. 199. Procedure After Removal in Classes One, Two and Three. Part 29, Jud. Code. " . . . The said copy being entered within said thirty days as aforesaid in said district court of the United States, the parties so removing the said cause shall, Manual 9 200, Ch. 9 MANUAL OP FEDERAL PROCEDURE. 130 within thirty days thereafter," plead, answer, or demur to the declaration or complaint in said cause, and the cause shall then proceed in the same manner as if it had been originally com- menced in the said district court." (See 195 above.) 200. Class Four ; Removal on Ground of Prejudice. Part 28, Jud. Code. "... 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 preju- dice or local influence he will not be able to obtain justice in such state court, or in any other state court to which the said defendant may, under the laws of the state, have the right, on account of such prejudice or local influence, to remove said cause. ..." (See 191 above.) The petition or affidavit in this class of cases is addressed to the federal district court, instead of the state court, as in classes one, two and three discussed above. No notice of the filing of the petition seems to be required, nor need a bond be given although both notice and bond are the usual practice. The dis- trict court enters an order of removal, which order should be filed in the state court (Form 14, above, may be used by entitling in the federal court), and a transcript of the record obtained from the state court (Form 19 gives the writ to obtain same) should be filed in the federal court. 15 Removal in these cases, instead of being required before the defendant is obligated under state practice to plead, may be "at any time before trial thereof," to wit, "before or at the term at which the cause could first be tried and before trial thereof." 16 15 Pennsylvania Co. v. Bender, 148 U. S. 255, 37 L Ed. 441, 13 Sup. Ct. 591. i McDonnell v. Jordan, 178 U. S. 229, 44 L. Ed. 1048, 20 Sup. Ct. 886. 131 REMOVAL OF CAUSES, ETC. Ch. 9, 200 FORM 17. PETITION FOR REMOVAL ON GROUND or PREJUDICE OR LOCAL INFLUENCE. In the District Court of the United States, etc. [Title of Cause.] PETITION FOR REMOVAL FROM THE SUPERIOR COURT OF THE STATE OF , IN AND FOR THE COUNTY OF . To the Honorable, the Judge of the District Court of the United States for the District of : Your petitioner, the above-named Z, respectfully shows to this honorable court that A, as plaintiff, brought suit of a civil nature" in the superior court of the stater< , in and for the county of , against your petitioner Z, and that the matter or amount in dispute in said cause exceeds the sum or value of three thousand dollars, exclusive of interest and costs. That the said controversy is between citizens of different states; that the plaintiff A was, at the time of the commencement of this suit and still is a citizen of the state of , the state wherein such suit is pending, and is re- siding at in said state; and that your petitioner Z was, at the time of the commencement of this suit, and still is, a citizen of the state of , and of no other state, residing in the city of in said state, and that your peti- tioner desires to remove this suit which is now pending and undetermined in said state court, before the 1 trial thereof, into the district court of the United States to be held in the , district of . Your petitioner further shows unto this honorable court that from prejudice and local influence in favor of the plaintiff and adverse to this defendant he will not be able to obtain justice in said court or in any other state court to which said defendant may, under the laws of the state, have a right to remove said cause, on account of such prejudice or local influence. Wherefore your petitioner prays that an order be entered for the removal of said case from the court of said state to this court, and that a writ of certiorari issue for the return to this court of a certified copy of the record in said state court. , Petitioner. [Verification as in Form 1 or 2.] FORM 18. AFFIDAVIT FOR REMOVAL OF CAUSE FOR PREJUDICE, Era [Title of Federal Court and Cause.] United States of America, ) - District of , j 88> I, Z, being duly sworn, do say that I am the defendant [or one of the de- fendants] in the above-entitled cause which is now pending for trial in the ' superior court of the state of in and for the county of , and that from prejudice and local influence I shall not be able to obtain justice in said 201, Ch. 9 MANUAL OF FEDERAL PROCEDURE. 132 state court or in any other state court to which I may, under the laws of said state, have the right, on account of such prejudice or local influences, to re- move said cause. Subscribed and sworn to, etc. FOEM 19. WRIT OP CERTIORARI FOE BEMOVAL ON GROUND OF PREJUDICE OB LOCAL INFLUENCE. The President of the United States of America to the Superior Court of the State of , in and for the County of , Greeting : It being represented to us that there is now pending before^pu a certain cause No, , wherein A is plaintiff and Z is defendant, which cause was commenced in the superior court of the state of , in and for the county of , by A against the said Z, for the purpose of [state object of suit], and that on the day of , a summons was issued out of said court and that no trial has yet been had; and, whereas, said defendant has caused to be filed, in our district court for the district of , his petition for the removal of the said cause from the said superior court to the district court of the United States for the district of , and a bond with good and sufficient surety, according to the statutes of the United States in such case made and provided; and has made it appear to us that, from prejudice or local influence he will not be able to obtain justice in such state court or any other state court to which the defendant may, under the laws of the state, have the right to remove the said cause, we are willing to remove the" said cause, and that the records and proceedings therein should be certified by said superior court and removed into our district court of the United States in and for the district of , and do hereby command you to certify and send the records and proceedings aforesaid, with all things concerning the same, to the said district court of the United States, together with this writ, so that you may have the same at the United States courthouse in the city of , in the said district of , on the day of in the said district court to be then and there held, that the said district court may cause to be done thereupon what of right, according to the laws of the United States, should be done. Witness, the Honorable , Judge of said district court, and the seal of the said district court hereto affixed, the day of , . , Clerk of said District Court. 201. Remanding Separable Controversy in Class Four. Part 28, Jud. Code. " . . . Provided, That if it further appear that said suit can be fully and justly determined as to the other defendants in the state court, without being affected by such prejudice or local influence, and that no party to the 133 REMOVAL OP CAUSES, ETC. Ch. 9, 202-204 suit will be prejudiced by a separation of the parties, said dis- trict court may direct the suit to be remanded, so far as re- lates to such other defendants, to the state court, to be pro- ceeded with therein. ..." 202. Remanding upon Failure to Show Prejudice Class Four. Part 28, Jud. Code. " ... 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 jus- tice in said state court, the district court shall, on application of the other party, examine into the truth of said affidavit and the grounds thereof, and, unless it shall appear to the satisfaction of said court that said party will not be able to obtain justice 4n said state court, it shall cause the same to be remanded thereto. ..." 203. Remanding- in Classes One, Two, Three and Four. Part 28, Jud. Code. " . . . 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 re- manded to the state court from whence it came, such remand shall be immediately carried into execution, and no appeal or writ of error from the decision of the district court so re- manding such cause shall be allowed. ..." (See 37, Jud. Code, in 215, infra.) 204. Common Carrier Employers' Liability Cases not Re- movable, nor for Property Damages, Unless in Excess of $3,000 Involved. Part 55, Jud. Code. "... 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 hundred and eight, or any amendment thereto, and brought in any 205, Ch. 9 MANUAL OP FEDERAL PROCEDURE. 134 state court of competent jurisdiction, shall be removed to any court of the United States." Act January 20, 1914, c. 48, amending 28, Jud. Code, by inserting at the conclusion thereof, "And provided further, That no suit brought in any state court of competent juris- diction against a railroad company, or other corporation, or person, engaged in carrying on the business of a common car- rier, to recover damages for delay, loss of, or injury to prop- erty received for transportation by such common carrier under section twenty of the act to regulate commerce, approved Feb- ruary fourth, eighteen hundred and eighty-seven, as amended June twenty-ninth, nineteen hundred and six, April thir- teenth, nineteen hundred and eight, February twenty-fifth, nineteen hundred and nine, and June eighteenth, nineteen hundred and ten, shall be removed to any e^ourt of the United States where the matter in controversy does not exceed, exclu- sive of interest and costs, the sum or value of $3,000." 205. Class Five; Suits Between Citizens of a State Under Land Grants from Different States. 30, Jud. Code. "If in any action commenced in a state court the title of land be concerned, and the parties are citi- zens of the same state, and the matter in dispute exceeds the sum or value of three thousand dollars, exclusive of interest 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 original grant, or an exemplification of it, except where the loss of public records shall put it out of his or their power, and shall move that any one or more of the adverse party inform the court whether he or they claim a right or title to the land under a C 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 infor- mation may then, on petition and bond, as hereinbefore men- tioned in this chapter, remove the cause for trial to the district 135 fcEMOVAL OP CAUSES, ETC. Ch. 9, 206-20? court of the United States next to be holden in such district ; and any one of either party removing the cause shall not be allowed to plead or give evidence of any other title than that by him or them stated as aforesaid as the ground of his or their claim." (36 Stats. 1096; 5 Fed. Stats. Ann., 2d ed., p. 375; 1 U. S. Comp. Stats. 1916, 1012.) 206. Class Six ; Removal of Suits of Aliens Against Officers. 34, Jud. Code. "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 ac- crued was, a civil officer of the United States, being a non- resident of that state wherein jurisdiction is obtained by the state court, by personal service of process, such action may be removed into the district court of the United States in and for the district in which the defendant shall have been served with the process, in the same manner as now provided for the removal of an action brought in a state court by the provisions of the preceding section." (36 Stats. 1098; 5 Fed. Stats. Ann., 2d ed., p. 386; 1 U. S. Comp. Stats. 1916, 1016.) 207. Class Seven ; Removal of Civil Rights Cases. 31, Jud. Code. "When any civil suit or criminal prose- cution is commenced in any state court, for any cause what- soever, against any person who is denied or cannot enforce in the judicial tribunals of the state, or in the part of the state where such suit or prosecution is pending, any right secured to him by any law providing for the equal civil rights of citi- zens of the United States, or of all persons within the juris- diction of the United States, or against any officer, civil or military, or other person, for any arrest or imprisonment or other trespasses or wrongs made or committed by virtue of or under color of authority derived from any law providing for equal rights as aforesaid, or for refusing to do any act on the ground that it would be inconsistent with such law, such suit or prosecution may, upon the petition of such defendant, filed in said state court at any time before the trial or final hear- ing of the cause, stating the facts and verified by oath, be re- moved for trial into the next district court to be held in the district where it is pending. Upon the filing of such petition 208, Ch. 9 MANUAL OF FEDERAL PROCEDURE. 136 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 judgment and execution in the state court. It shall be the duty of the clerk of the state court to furnish such de- fendant, petitioning for a removal, copies of said process against him, and of all pleadings, depositions, testimony, and other proceedings in the case. If such copies are filed by said petitioner in the district court on the first day of its session, the cause shall proceed therein in the same manner as if it had been brought there by original process; and if the said clerk refuses or neglects to furnish such copies, the petitioner may thereupon docket the case in the district court, and the said court shall then have jurisdiction therein, and may, upon proof of such refusal or neglect of said clerk, and upon rea- sonable 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." (36 Stats. 1096; 5 Fed. Stats. Ann., 2d ed., p. 376; 1 U. S. Comp. Stats. 1916, 1013; Foster's Federal Practice, 5th ed., pp. 20, 1762, 1879.) 208. Habeas Corpus Proceedings Where Civil Rights Denied, and Other Cases. 32, Jud. Code. "When all the acts necessary for the re- moval of any suit or prosecution, as provided in the preceding section, have been performed, and* the defendant petitioning for such removal is in actual custody on process issued by said state court, it shall be the duty of the clerk of said district court to issue a writ of habeas corpus cum causa, and of the marshal, by virtue of said writ, to take the body of the de- fendant into his custody, to be dealt with in said district 137 REMOVAL OP CAUSES, ETC. Ch. 9, 209-210 court according to law and the orders of said court, or, in vacation, 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." (36 Stats. 1097; 5 Fed. Stats. Ann., 2d ed., p. 380; 1 U. S. Comp. Stats. 1916, 1014.) 209. Class Eight; Removal in Cases Against Revenue or Congressional Officers. Part 33, Jud. Code (Combining 643, Rev. Stats, and first part 8, Sundry Civil Appropriation Act, 28 Stats. 401}. "When any civil suit or criminal prosecution is commenced in any court of a state against any officer appointed 'under or acting by authority of any revenue law of the United States now or hereafter enacted, or against any person acting under or by authority of any such officer, on account of any act done under color of his office or of any such law, or on account of any right, title, or authority claimed by such officer or other person under any such law; or is commenced against any person holding property or estate by title derived from any such officer, and affects the validity of any such revenue law ; or when any suit is commenced against any person for (sic) 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 order of such House, the said suit or prosecu- tion may, at any time before the trial or final hearing there- of, 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. . . ." (36 Stats. 1097 ; 5 Fed. Stats. Ann., 2d ed., p. 380 ; 1 U. S. Comp. Stats. 1916, 1015.) 210. Procedure on Removal Under Class Eight Cases Against Revenue or Congressional Officers. Part 33, Jud.' Code. "... the said suit or prosecution (i. e., against revenue or congressional officers) may, at any time before the trial or final hearing thereof, be removed for trial into the district court next to be holden in the district where the same is pending, upon the petition of such defend- ant to said district court, and in the following manner: Said petition shall set forth the nature of the suit or prosecution 210, Ch. 9 MANUAL OP FEDERAL PROCEDURE. 138 and be verified by affidavit, and, together with a. certificate signed by an attorney or counselor at law of some court of record of the state where such suit or prosecution is com- menced, 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 pre- sented to the said district court, if in session, or if it be not, to the clerk thereof at his office, and shall be filed in said office." (See 209 above.) FORM 20. PETITION FOR REMOVAL BY CERTIORABI IN ACTION AGAINST REVENUE OFFICERS. In the District Court of, etc., of the United States. [Title of Cause.] To the Honorable Judges of the District Court of the United States, for the Northern District of California. The petition of , and , the defendants above named, respectfully showeth : That before the commencement of the suit above named, and at all the times hereinafter mentioned, the said and were and now are the duly appointed and qualified collector of. internal revenue of the United States and deputy internal revenue agent of the United States, respectively, for the first revenue district of California, and the said was at such times and is the United States marshal for the northern district of California, all of your petitioners acting under and by the authority of the internal revenue laws of the United States. That heretofore, and on the day of , , one was the occupant and lessee of the premises, No. 624 Market Street, and the owner and in control of certain personal property therein contained, to wit: certain machinery, tools, implements, apparatus, fixtures, boxes, barrels, tobacco, and cigars, shelving and counters, and other articles and things. That said on or about said day, and continuously theretofore and thereafter, and while in the occupancy of said premises and in the ownership and control of said personal property as aforesaid, having bonded the same as a cigar and tobacco manufactory, then and there committed certain vio- lations against the said internal revenue laws of the United States in the use and management of said property, to wit, the said did then and there and upon said premises wrongfully, unlawfully, and knowingly, and contrary to the provisions of sections 3372, 3374, 3397, and 3400 of the Revised Statutes of the United States, remove from said manufactory, with- out the proper stamps denoting the tax thereon, tobacco made therein, made false and fraudulent entries of manufactures and sales of tobacco [etc.; 139 REMOVAL OF CAUSES, ETC. Ch. 9, 210 other charges specified], and committed other offenses against said revenue laws of the United States. That thereafter a suit for divorce was instituted in the superior court of the city and county of San Francisco within the state and district aforesaid by against the said , her husband, and such proceedings were there- upon had that a decree of said superior court was made and entered granting the divorce and awarding said personal property to said , subject to the payment of certain claims alleged to have been established in said court against her, and on the day of , , a receiver, , was appointed by said court for said property. That said receiver thereupon duly qualified and acted as such. That thereafter the said receiver and , the latter having, since the appointment and with the consent of said receiver, bonded the said premises as a cigar and tobacco manufactory, committed certain violations against the said internal revenue laws of the United States, to wit: did then and there and upon the said premises [repeats the charges as above], and committed other offenses against the said revenue laws of the United States. That heretofore, and on the day of , your petitioners, as such collector, and as such internal revenue agent, seized said personal property for the violations aforesaid of said laws, and thereafter, on the day of , said collector delivered the same into the custody of your peti- tioner , as such United States marshal, who now holds the same by virtue of such delivery. That said receiver has not yet been discharged by said superior court. That heretofore, and on the day of , the suit above entitled was commenced in said superior court by said receiver, against your peti- tioners for $20,000 damages for an alleged wrongful conversion of said prop- erty by reason of the seizure and acts hereinbefore mentioned. That at all of such times your petitioners were acting under color of their said respective officers and by authority of the internal revenue laws aforesaid. That your petitioners have been served with process in said suit, to wit: with summons and complaint inaugurating the same, and said process has been served as aforesaid within this said northern district of California, and that there has not been as yet any trial or final hearing of said suit. Your petitioners therefore pray that, in pursuance of the statute of said United States in such case made and provided, the said suit, so commenced in said superior court of the city and county aforesaid against your petitioners, may be removed therefrom into this honorable court for trial and determina- tion, and thereupon proceed as a cause originally commenced in the same; and that a writ of certiorari in this behalf, for the record and proceedings heretofore had in said cause in said superior court, may issue from this honor- able court to the said superior court of said city and county as by the same statute is provided. 211-212, Ch. 9 MANUAL OF FEDERAL PROCEDURE. 140 State and Northern District of California, ss. , and , the above-named petitioners, make oath and say that the matters set forth in the foregoing petition are true in substance and in fact, the said making oath upon information and belief. [Signatures.] Subscribed and sworn to, etc. CERTIFICATE. I, , an attorney and counselor at law of the supreme* court of said state, and assistant United States attorney for the northern district of Cali- fornia, do hereby certify that as counsel for the petitioners above named I have 1 examined the proceedings against them in the foregoing petition men- tioned, and have carefully inquired into all the matters set forth in said peti- tion, and that I believe the same to be true. , Assistant United States Attorney. 211. Procedure After Removal in Class Eight. Part 33, Jud. Code. ' ' The cause shall thereupon be en- tered on the docket of the district court, and shall proceed as a cause originally commenced in that court; but all bail and other security given upon such suit or prosecution shall con- tinue in like force and effect as if the same had proceeded to final judgment and execution in the state court." (See 209 above.) 212. Certiorari and Habeas Corpus Proceedings in Class Eight Suits Against Revenue or Congressional Officers. Last Part 33, Jud. Code. " . . . When the suit is com- menced 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 sim- ilar form or proceeding by which a personal arrest is ordered, he shall issue a writ of "habeas corpus cum causa, & duplicate of which shall be delivered to the clerk of the state court, or left at his office, by the marshal of the district or his deputy, or by some person duly authorized thereto; and thereupon it shall be the duty of the state court to stay all further proceed- ings 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 pro- 141 REMOVAL OP CAUSES, ETC. Ch. 9, 212 ceedings, 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 Tiabecus corpus cum causa, to take the body of the defendant into his custody, to be dealt with in the cause according to law and the order of the dis- trict 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 proceed- ings 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 distric.t court. On failure of the plaintiff so to proceed, judg- ment of non prosequitur may be rendered against him, with costs for the defendant." (See 209 above.) FORM 21. ORDER FOR WRIT or CERTIORARI IN ACTION AGAINST REVENUE OFFICERS. In the District Court, etc., of the United States. In re the Petition of et al., for Writ of Certiorari in v. et al. Upon motion of , Esq., assistant United States attorney, and on filing petition of and ordered, that a writ of certiorari issue herein to the superior court of the city and county of San Francisco, re- quiring said court to transmit the record and proceedings in said cause of v. et al., to this court within ten days. Further ordered, that said writ be served by delivering to said superior court and to the clerk thereof each a certified copy and that be and he hereby is appointed an elisor to serve said writ of certimari, the marshal of this district, being a party to this proceeding. FORM 22. WRIT or CERTIORARI IN ACTION AGAINST REVENUE OFTTOERS. In the District Court of the United States, Within and for Northern District of California. Northern District of California, n .uistrict or waiirornia, \ United States of America, j ss * To the Superior Court in and for the City and County of San Francisco, State of California, Greeting: Being informed that there is now pending before you a suit wherein is plaintiff, and and are defendants, which said suit is 213, Ch. 9 MANUAL OP FEDERAL PROCEDURE. 142 brought for damages alleged to have been suffered by said plaintiff by reason of an alleged wrongful conversion of certain property by said de- fendants, the said alleged wrongful conversion occurring while said defend- ants were in discharge of their duties as officers of the United States, tinder the revenue laws' of the United States, and which said suit has been com- menced by the service of process, to wit, summons and complaint upon said and and said suit has not yet been heard and determined. Therefore, we being willing for certain reasons that said case and the records and proceedings heretofore had therein should be certified by said superior court and removed into our district court of the United States in and for the northern district of California do hereby command you that you send, without delay and within ten days, to the said district court as aforesaid, the records and proceedings in said case, so that the said district court may act thereon as of right and according to law ought to be done. > ipn Witness, the Honorable , Judge of said district court, , this day of , A. D. . [Seal] , Clerk of the United States District Court, in and for the Northern District of California. 213. Proofs of Records When Copies Refused by State Court Clerks. 55, Jud. Code (re-enacting 645, Rev. Stats.). "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 afore- said, direct such record to be supplied by affidavit or other- wise, as the circumstances of the case may require and allow; and thereupon such proceeding, trial, and judgment may be had in the said court of the United States, and all such pro- cesses awarded, as if certified copies of such records and proceedings had been regularly before the said court." (36 Stats. 1098 ; 5 Fed. Stats. Ann., 2d ed., p. 387 ; 1 U. S. Comp. Stats. 1916, 1017; Foster's Federal Practice, 5th ed., p. 1877.) REMOVAL OP CAUSES, ETC. Ch. 9, 214 214. Enforcement of Return of Record from State to Fed- eral Courts. 39, Jud. Code (re-enacting 18 Stats. 472). "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 remove the same, a copy of the record therein, after tender of legal fees for such copy, said clerk so offending shall, on conviction thereof in the district court of the United States to which said action or proceeding was removed, be fined not more than one thousand dollars, or imprisoned not more than one year, or both. The district court to which any cause shall be remov- able under this chapter shall have power to issue a writ of certiorari to said state court commanding said state court to make return of the record in any such cause removed as afore- said, or in which any one or more of the plaintiffs or defend- ants have complied with the provisions of this chapter for the removal of the same, and enforce said writ according to law. If it shall be impossible for the parties or persons removing any cause under this chapter, or complying with the pro- visions 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 pro- ceed to final judgment. The said district court may make an order requiring the parties thereto to plead de novo; and the bond given, conditioned as aforesaid, shall be discharged so far as it requires copy of the record to be filed as aforesaid." (36 Stats. 1099; 5 Fed. Stats. Ann., 2d ed., p. 466; 1 U. S. Comp. Stats. 1916, 1021; Foster's Federal Practice, 5th ed., p. 1878; Simkins' Federal Equity Suit, 3d ed., 781.) 215, Ch. 9 MANUAL OP FEDERAL PROCEDURE. K4 FOEM 23. WRIT OP CERTIORARI UNDER 39, JUDICIAL CODE. The President of the United States of America to the Judge of the [describe he court], Greeting: Whereas, it has been represented to the district court of the United States for the district of , that a certain suit was commenced in the [state court], wherein A, a citizen and resident of the state of was plaintiff, and Z, a citizen of the state of was defendant, and that the said Z duly filed in the said state court his petition for the removal of said cause into the said district court of the United States, and filed -with said petition the bond with surety required by law, and that the clerk of said state court has refused to said petitioner for the removal of said cause a copy of the record therein, though his legal fees therefor were tendered by said peti- tioner. You, therefore, are hereby commanded that you forthwith certify or cause to be certified to the said district court of the United States for the , district of , a full, true, and complete copy of the record and pro- ceedings in said cause in which the said petition for removal was filed as aforesaid, plainly and distinctly, and in as full and ample a manner as the same now remain before you, together with this writ; so that the said district court may be able to proceed thereon and do what shall appear to them of right ought to be done. Herein fail not. Witness, the Honorable , Judge of said district court, and the seal of the said court hereto affixed, the day of , . , Clerk of said District Court. 215. Remand or Dismissal of Case Fraudulently or Improp- erly Removed. 37, Jud. Code. "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 said dis- trict court, at any time after such suit has been brought or removed thereto, that such suit does not really and substan- tially involve a dispute or controversy properly within the jurisdiction of said district court, or that the parties to said suit have improperly or collusively made or joined, either as plaintiffs or defendants, for the purpose of creating a case cognizable or removable under this act, the said district court shall proceed no farther therein, but shall dismiss the suit or remand it to the court from which it was removed, as justice may require, and shall make such order as to costs as shall be just." (Annotated 160, supra.) 145 REMOVAL, OP CAUSES, ETC. Ch. 9, 216 FORM 24. MOTION TO REMAND ON THE GROUND OF No JURISDICTION, UNDER $ 37, JUDICIAL CODE. [Title of Federal Court and Cause.] Now comes the plaintiff and moves this court to remand the above- entitled cause to the superior court in and for the county of , in the state of , on the ground that this court is without jurisdiction to hear and determine the cause. [Set out in what respects jurisdiction is lacking.] , Attorneys for Plaintiff. FORM 25. ORDER REMANDING CAUSE. At a Stated Term, etc. [Title of Federal Court and Cause.] Present, The Honorable, etc. Plaintiff's motion to remand heretofore heard and submitted to the court for consideration and decision having been fully considered, and the opinion of the court having been delivered, it is in accordance with said opinion, Ordered that said motion be, and the same is, granted, and that this cause be, and the same is hereby, remanded to the superior court of the county of Amador, state of California, for further proceedings. , Judge United States District Court. 216. Provisional Remedies of State Court Preserved Bonds Given in State Suit Valid on Removal. 36, Jud. Code (drawn from 18 Stats. 471, superseding 646, Rev. Stats.). "When any suit shall be removed from a state court to a district court of the United States, any attach- ment or sequestration of the goods or estate of the defendant had in such suit in the state court shall hold the goods or estate so attached or sequestered to answer the final judg- ment or decree in the same manner as by law they would have been held to answer final judgment or decree had it been ren- dered by the court in which said suit was commenced. All bonds, undertakings, or security given by either party in such suit prior to its removal shall remain valid and effectual not- withstanding said removal; and 'all injunctions, orders, and other proceedings had in such suit prior to its removal shall remain in full force and effect until dissolved or modified by the court to which such suit shall be removed." (36 Stats. 1098 ; 5 Fed. Stats. Ann., 2d ed., p. 387 ; 1 U. S. Comp. Stats. Manual 10 217, Ch. 9 MANUAL OF FEDERAL PROCEDURE. 146 1916, 1018; Foster's Federal Practice, 5th ed., pp. 977, 1910; Simians' Federal Equity Suit, 3d ed., p. 789.) 217. Proceedings After Removal Generally. 38, Jud. Code (re-enacting 18 Stats. 472). "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." (36 Stats. 1098; 5 Fed. Stats. Ann., 2d ed., p. 446; 1 U. S. Comp. Stats. 1916, 1020; Foster's Federal Practice, 5th ed., p. 578; Simkins' Federal Equity Suit, 3d ed., pp. 789, 790, 838.) 147 STATUTES OF LIMITATIONS. Ch. 10, 230 CHAPTER 10. STATUTES OF LIMITATIONS. SEC. 230. In General, 231. Capital Offenses. 232. Offenses not Capital. 233. Unless Fleeing from Justice. 234. Crimes Under Revenue and Slave-trade Laws. 235. Crimes Under Internal Revenue Laws. 236. Seduction of Female Passenger on Vessel. 237. Violation of Naturalization Laws. 238'. Penalties and Forfeitures Under Federal Laws. 239. Penalties and Forfeitures Under Customs Revenue Laws. 240. Settlements for Customs Duties. 241. Forfeiture or Penalty Under Copyright Laws Criminal Prosecutions. 242. Forfeiture and Damage Suits for False Claims Against United States. 243. Claims Against United States. 244. Recovery of Taxes Wrongfully Collected. 245. Suits by United States to Vacate Land Patents. 246. Suits by United States to Vacate Railway or Wagon Road Patents. 247. Suits by Patentee of Lands Patented to Indians. 248. Under Employers' Liability Acts and Under Act Limiting Hours of Labor. 249. Action for Neglect to Prevent Conspiracy Against Civil Bights. 250. Infringement of Patent. 251. Infringement of Copyrights. 252. Liability of Stockholders of National Banks. 253. Interstate Commerce Act. 254. Suspension of Statute of Limitations Under Trading With the Etaemy Act. 230. In General. Unless a federal statute of limitations is prescribed for the particular suit, the state statute of limitations of the state in which the district lies will govern under 721, Rev. Stats., quoted next page 148. 1 l Michigan Ins. Bank v. Eldred, 130 TJ. 8. 696, 32 L. Ed. 1081, 9 Sup. Ct. 691; Davie v. Briggs, 97 U. S. 637, 24 L. Ed. 1089; Elmendorf v. Taylor, 10 Wheat. (U. S.) 176, 6 L. Ed. 2S9; Campbell v. City of Haverhill, 155 U. S. 615, 39 L. Ed. 280, 15 Sup. Ct. 217; Lewis v. Lewis, 7 How. (U. S.) 776, 12 L, Ed. 909; Pond v. United States, 111 Fed. 989, 49 C. C. A. 5S2; Butler v. Poole, 44 Fed. 586. 231-232, Ch. 10 MANUAL OF FEDERAL PROCEDURE. 148 In the absence of federal legislation, the federal courts recog- nize the state statutes of limitations, giving them the same con- struction and effect as are given by state tribunals. This ap- plies to a state statute allowing renewal of a case after nonsuit or dismissal. (Fordham v. Hicks (S. D. Ga. N. D.), 224 Fed. 810, 813.) 721, Rev. Stats. "The laws of the several states, except where the Constitution, treaties, or statutes of the United States otherwise require or provide, shall be regarded as rules of decision in trials at common law, in the courts of the United States, in cases where they apply." (5 Fed. Stats. Ann., 2d ed., 1123 ; 3 Comp. Stats. 1916, 1538, p. 2981.) Special limitations for crimes and offenses are set out in 231- 237, infra; for penalties and forfeitures in 238, 239, 241, 242, infra; suits against the United States, 243, 244, infra; actions respecting land patents, 245-247, infra, and other actions, 248- 253, infra. 231. Capital Offenses. $1043, Rev. Stats. "No person shall be prosecuted, tried or punished for treason or other capital offense, wilful murder excepted, unless the indictment is found within three years next after such treason or capital offense is done or com- mitted." (2 Fed. Stats. Ann., 2d ed., p. 692; 3 U. S. Comp. Stats. 1916, 1707, p. 3577.) 232. Offenses not Capital. 1044, Rev. Stats. ' ' No person shall be prosecuted, tried, or punished for any offense, not capital, except as provided in section one thousand and forty-six (R. S.) unless the in- dictment is found, or the information is instituted within three years next after such offense shall have been committed. But this act shall not have effect to authorize the prosecution, trial or punishment for any offense, barred by the provisions of existing laws." (2 Fed. Stats. Ann., 2d ed., p. 692 ; 3 U. S. Comp. Stats. 1916, 1708, p. 3577.) X49 STATUTES OF LIMITATIONS. Ch. 10, 233-236 233. Unless Fleeing from Justice. 1045, Rev. Stats. "(Fleeing from justice.) Nothing in the two preceding sections shall extend to any person fleeing from justice." (2 Fed. Stats. Ann., 2d ed., p. 696; 3 U. S. Comp. Stats. 1916, 1709, p. 3585.) 234. Crimes Under Revenue and Slave-trade Laws. 1046, Rev. Stats. "No person shall be prosecuted, tried, or punished for any crime arising under the revenue laws, or the slave-trade laws of the United States, unless the indict- ment is found or the information is instituted within five years next after the committing of such crime." (2 Fed. Stats. Ann., 2d ed., p. 697 ; 3 U. S. Comp. Stats. 1916, 1710, p. 3586.) 235. Crimes Under Internal Revenue Laws. i, Act July 5, 1884, c, 225. "That no person shall be prosecuted, tried, or punished for any of the various offenses arising under the internal revenue laws of the United States unless the indictment is found or the information insti- tuted within three years next after the commission of the offense, in all cases where the penalty prescribed may be im- prisonment in the penitentiary, and within two years in all other cases : Provided, That the time during which the person committing the offense is absent from the district wherein the same is committed shall not be taken as any part of the time limited by law for the commencement of such proceedings ; Pro- vided furtlier, That the provisions of this act shall not apply - to offenses committed prior to its passage: And provided fur- ther, That where a complaint shall be instituted before a com- missioner of the United States within the period above limited, the time shall be extended until the discharge of the grand jury at its next session within the district: And provided fur- ther, That this act shall not apply to offenses committed by officers of the United States." (23 Stats. 122; 4 Fed. Stats. Ann., 2d ed., p. 330; 3 U. S. Comp. Stats. 1916, 1711, p. 3587.) 236. Seduction of Female Passenger on Vessel. Part 281, Grim. Code. " ... No conviction shall be had on the testimony of the female seduced, without other evidence, 237-239, Ch. 10 MANUAL OF FEDERAL PROCEDURE. 150 nor unless the indictment is found within one year after the arrival of the vessel on which the offense was committed at the port of its destination." (Fed. Stats. Ann., 2d ed., title "Penal Laws"; 10 U. S. Comp. Stats. 1916, 10,454, p. 12,900.) 237. Violation of Naturalization Laws. 24, Act June 29, 1906, c. 3592. (Limit for prosecutions. 1 ) "That no person shall be prosecuted, tried, or punished for any crime arising under the provisions of this act unless the indictment is found or the information is filed within five years next after the commission of such crime." (34 Stat^. 603; Fed. Stats. Ann., 2d ed., title "Naturalization"; 5 U. S. Comp. Stats. 1916, 4380, p. 5255.) 238. Penalties and Forfeitures Under Federal Laws. 1047, Rev. Stats. "No suit or prosecution for any pen- alty or forfeiture, pecuniary or otherwise, accruing under the laws of the United States, shall be maintained, except in cases 'where it is otherwise specially provided, unless the same is commenced within five years from the time when the penalty or forfeiture accrued: Provided, That the person of the offender, or the property liable for such penalty or forfeiture, shall, within the same period, be found within the United States; so that the proper process therefor may be instituted and served against such person or property. 2 " (3 Fed. Stats. Ann., 2d ed., p. 330; 3 U. S. Comp. ' Stats. 1916, 1712, p. 3588.) 239. Penalties and Forfeitures Under Customs Revenue Laws. 52, Act June 22, 1874, c. 391. "That no suit or action to recover any pecuniary penalty or forfeiture of property accruing under the customs revenue laws of the United States shall be instituted unless such suit or action shall be com- * United States v. Smith etc. Co., 184 Fed. 532; United States v. Guest, 143 Fed. 456, 74 C. C. A. 590; Carter v. New Orleans etc. R. Co., 143 Fed. 99, 74 C. C. A. 293; United States v. Witteman, 152 Fed. 377, 81 C. C. A. 503; City of Atlanta v. Chattanooga Foundry & Pipe Co., 101 Fed. 900; 'United States v. One Dark Bay Horse, 130 Fed. 240. 151 STATUTES OP LIMITATIONS. Ch. 10, 240-242 menced within three years after the time when such penalty or forfeiture shall have accrued: Provided, That the time of the absence from the United States of the person subject to such penalty or forfeiture, or of any concealment or ab- sence of the property, shall not be reckoned within this period of limitation." (18 Stats. 190; 2 Fed. Stats. Ann., 2d ed., p. 1183; 3 U. S. Comp. Stats. 1916, 1713, p. 3591.) 240. Settlements for Customs Duties. 21, Act June 22, 1874, c. 391. "That whenever any goods, wares, and merchandise shall have been entered and passed free of duty, and whenever duties upon any imported goods, wares, and merchandise shall have been liquidated and paid, and such goods, wares, and merchandise shall have been delivered to the owner, importer, agent, or consignee, such entry and passage free of duty and such settlement of duties shall, after the expiration of one year from the time of entry, in the absence of fraud and in the absence of protest by the owner, importer, agent, or consignee, be final and conclusive upon all parties." (18 Stats. 190; 2 Fed. Stats. Ann., 2d ed., p. 1136; 6 U. S. Comp. Stats. 1916, 5714, p. 6820.) 211. Forfeiture or Penalty Under Copyright Laws Crimi- nal Prosecutions. 139, Act March 4, 1909, c. 320. "That no criminal pro- ceeding shall be maintained under the provisions of this Act unless the same is commenced within three years after the cause of action arose." (35 Stats. 1084; 2 Fed. Stats. Ann., 2d ed., p. 608; 9 U. S. Comp. Stats. 1916, 9560, p. 10,996.) 242. Forfeiture and Damage Suits for False Claims Against United States. 13494, Rev. Stats. "Every such suit shall be commenced within six years from the commission of the act, and not after- ward." (2 Fed. Stats. Ann., 2d ed., p. 210; 6 U. S. Comp. Stats. 1916, 6415, p. 7466.), 243-244, Ch. 10 MANUAL OF FEDERAL PROCEDURE. 152 243. Claims Ag-ainst United States. 156, Jud.-Code (Re-enacting 1069, Rev. Stats.}. "Every claim against the United States, cognizable by the court of claims, shall be forever barred, unless the petition setting 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 Representatives, as provided by law, within six years after the claim first accrues: 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 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 prevent any claim from being barred, nor shall any of the said dis- abilities operate cumulatively." (36 Stats. 1139; 5 Fed. Stats. Ann., 2d ed., p. 668; 2 U. S. Comp. Stats. 1916, 1142; Foster's Federal Practice, 5th ed., p. 2314.) See also subd. 20, 24, Jud. Code, quoted in 94 supra. 244. Recovery of Taxes Wrongfully Collected. 3227, Rev. Stats. "No suit or proceeding for the recovery of any internal tax alleged to have been erroneously or illegally assessed or collected, or of any penalty alleged to have been collected without authority, or of any sum alleged to have been excessive or in any manner wrongfully collected, shall be maintained in any court, unless the same is brought within two years next after the cause of action accrued: Provided, That actions for such claims which accrued prior to June 6, 1872, may be brought within one year from said date; and that where any such claim was pending before the Commissioner, as provided in the preceding section, an action thereon may be brought within one year after such decision, and not after. But no right of action which was already barred by any statute on the said date shall be revived by this section." (3 Fed. Stats. Ann., 2d ed., p. 1037; 6 U. S. Comp. Stats. 1916, 5950, p. 6986.) 3228, Rev. Stats. "All claims for the refunding of any internal tax alleged to have been erroneously or illegally as- 153 STATUTES OF LIMITATIONS. Ch. 10, 245-246 scssecl or collected, or of any penalty alleged to have been collected without authority, or of any sum alleged to have been excessive or in any manner wrongfully collected, must be presented to the Commissioner of Internal Revenue within two years next after the cause of action accrued: Provided, That claims which accrued prior to June 6, 1872, may be pre- sented to the Commissioner at any time within one year from said date. But nothing in this section shall be construed to revive any right of action which was already barred by any statute on that date." (3 Fed. Stats. Ann., 2d ed., p. 1037; 6 U. S. Comp. Stats. 1916, 5951, p. 6991.) 245. Suits by United States to Vacate Land Patents. Part 8, Act March 3, 1891, c. 561. "That suits by the United States to vacate and annul any patent heretofore issued shall only be brought within five years from the passage of this act, and suits to vacate and annul patents hereafter issued shall only be brought within six years after the date of the issuance of such patents. (26 Stats. 1099 ; Fed. Stats. Ann., 2d ed., title "Public Lands"; 5 U. S. Comp. Stats. 1916, 5114, p. 6065.) 246. Suits by United States to Vacate Railway or Wagon Road Patents. 1, March 2, 1896, c. 39. "That suits by the United States to vacate and annul any patent to lands heretofore erroneously issued under a railroad or wagon road grant shall only be brought within five years from the passage of this act, and suits to vacate and annul patents hereafter issued shall only be brought within six years after the date of the issuance of such patents, and the limitation of section eight of chapter five hundred and sixty-one of the acts of the second session of the Fifty-first Congress and amendments thereto is ex- tended accordingly as to the patents herein referred to. But no patent to any lands held by a bona fide purchaser shall be vacated or annulled, but the right and title of such purchaser is hereby confirmed : Provided, That no suit shall be brought or maintained, nor shall recovery be had for lands or the value thereof, that were certified or patented in lieu of other lands covered by a grant which were lost or relinquished by the grantee in consequence of the failure of the government or 247-249, Ch. 10 MANUAL OP FEDERAL PROCEDURE. 154 its officers to withdraw the same from sale or entry." (29 Stats. 42; Fed. Stats. Ann., 2d ed., title "Public Lands"; 5 U. S. Comp. Stats. 1916, 4901, p. 5893.) 247. Suits by Patentee of Lands Patented to Indians. 1, Act May 31, 1902, c. 946. "That in all actions brought in any state court or United States court by any patentee, his heirs, grantees, or any person claiming under such patentee, for the possession or rents or profits of lands patented in severalty to the members of any tribe of Indians under any treaty between it and the United States of America, where a deed has been approved by the Secretary of the Interior to the land sought to be recovered, the statutes of limitations of the states in which said land is situate shall be held to apply, and it shall be a complete defense to such action that the same has not been brought within the time prescribed by the statutes of said state the same as if such action had been brought for the recovery of land patented to others than mem- bers of any tribe of Indians." (32 Stats. 284; 3 Fed. Stats. Ann., 2d ed., p. 847 ; 5 U. S. Comp. Stats. 1916, 4216, p. 5013.) 248. Under Employers' Liability Acts and Under Act Limit- ing Hours of Labor. Part 6, Act April 22, 1908, c. 149. "That no action shall be maintained under this act unless conynenced within two years from the day the cause of action accrued." (35 Stats. 66; Fed. Stats. Ann., 2d ed., title "Railroads"; 8 U. S. Comp. Stats. 1916, 8662, p. 9432.) Part 1, Act May 4, 1916, c. 109. In prosecutions under the act to promote the safety of employees and travelers upon railroads by limiting the hours of service of employees thereon "no suit shall be brought after the expiration of one year from the date of such violation." (39 Stats. 61; Pamphlet Supp., Fed. Stats. Ann. No. 7, p. 37; 8 U. S. Comp. Stats. 1916, part 8679, p. 9455.) 249. Action for Neglect to Prevent Conspiracy Against Civil Rights. Part 1981, Rev. Stats. "... But no action under the provision of this section shall be sustained which is not com- 155 STATUTES OP LIMITATIONS. Ch. 10, 250-253 menced within one year after the cause of action has accrued." (2 Fed. Stats. Ann., 2d ed., p. 133 ; 4 U. S. Comp. Stats. 1916, 3934, p. 4805.) 250. Infringement of Patent. Part 4921, Rev. Stats., as amended 6, Act March 3, 1897, c. 391. " . . .. But in any suit or action brought for the in- fringement of any patent, there shall be no recovery of profits or damages for any infringement committed more than six years before the filing of the bill of complaint or the issuing of the writ in such suit or action, and this provision shall apply to existing causes of action." (Fed. Stats. Ann., 2d ed., title "Patents"; 8 U. S. Comp. Stats. 1916, 9467, p. 10,490.) 251. Infringement of Copyrights. Actions for infringe- ments of copyrights, except in a case of forfeiture or penalty under copyright laws governed by 39, act March 4, 1909, c. 320 ( 241 above), are governed by state statutes of limitation. (Brady v. Daly, 175 U. S. 158, 44 L. Ed. 109, 20 Sup. Ct. 66.) 252. Liability of Stockholders of National Banks. Under 2 of the Act June 30, 1876, c. 156, 19 Stats. 63, Fed. Stats. Ann., 2d ed., title "National Banks," 9 U. S. Comp. Stats. 1916, 9807, p. 12,039, this action is governed by the state statute of limitations, but it does not begin to run until the amount of the stockholders' liability has been ascertained and assessed by the comptroller of currency. 8 253. Interstate Commerce Act. Part 16, Act February 4, 1887, c. 104, as amended 5, Act March 2, 1889, c. 382, and 5, Act June 29, 1906, c. 3591, and 13, Act June 18, 1910, c. 309. "All complaints for the re- covery of damages shall be filed with the commission within two years from the time the cause of action accrues, and not after, and a petition for the enforcement of an order for the payment of money shall be filed in the circuit (now district) 3 Rankin v. Barton, 199 U. S. 228, 50 L. Ed. 163, 26 Sup. Ct. 29. See, also, McClaine v. Ranlcin, 197 U. S. 154, 3 Ann. Cas. 500, 49 L. Ed. 702, 25 Sup. Ct. 410. 254, Ch. 10 MANUAL, OP FEDERAL, PROCEDURE. 156 court or state court within one year from the date of the order, and not after." (4 Fed. Stats. Ann., 2d ed., p. 477; 8 U. S. Comp. Stats. 1916, 8584, part (2), p. 9222.) 254. Suspension of Statute of Limitations Under Trading With the Enemy Act. Part 8, Act October 6, 1917, c. . " (c) The running of any statute of limitations shall be suspended with reference to the rights or remedies on any contract or obligation entered into prior to the beginning of the war between parties neither of whom is an. enemy or ally of enemy, and containing any promise to pay or liability for payment which is evidenced by drafts or other commercial paper drawn against or se- cured by funds or other property situated in an enemy or ally of enemy country, and no suit shall be maintained on any such contract or obligation in any court within the United States until after the end of the war, or until the said funds or property shall be released for the payment or satisfaction of such contract or obligation: Provided, "however, That nothing herein contained shall be construed to prevent the suspension of the running of the statute of limitations in all other cases where such suspension would occur under exist- ing law." (Pamphlet Supp., Fed. Stats. Ann. No. 12, p. 131.) 157 EVIDENCE. Ch. 11 CHAPTER 11. EVIDENCE. SEC. 270. In General. 271. Statutes of United States Evidence of Little and Brown's Edition. 272. Same Supplement of Revised Statutes. 273. Same Richardson's Supplement of Revised Statutes. 274. Proof State and Foreign Legislative Acts and State Court Records and Proceedings. 275. Exemplified Copies Records of Public Offices, not Appertaining to a Court in States and Territories. 276. Copies of Foreign Records Filed in Department Offices Relating to Land Titles in United States. 277. Copies Extracts from Journals of Congress Certified. 278. Pamphlet Copies of Statutes and Bound Copies of Acts, 279. Printed and Bound Copies of Acts. 280. Copies Lost or Destroyed Judicial Records. 281. Restoration of Lost or Destroyed Judicial Records. 282. Copies Lost Supreme Court Record. 283. Restoration of Records Service of Notice on Nonresidents. 284. Copies Lost Returns and Official Papers Judicial Officers. 285. Restoration of Records in Which United States are Interested by United States Attorneys. 286. Copies Executive Department Records 1 , etc. 2-87. Copies Solicitor of the Treasury Records, etc. 288. Copies Comptroller of the Currency Records, etc. 289. Copies National Bank Organization Certificates. 290. Copies Bonds, Contracts, and Other Papers of United States in Set- tlement of Accounts with Government. 291. Copies Treasury, War, Navy, Records in Suits Against Delinquents. 292. Same Certification of Copies to be Made by Secretary or an Assist- ant Secretary of the Treasury under Seal of Department. 293. Copies Treasury Department Books and Proceedings in Embezzlement Suits. 294. Copies Department of the Interior. 295. Copies Postoffice Records. 296. Copy Postoffice Department Demand on Postmasten. 2S7. Copies Land Office Records Certification of. 298. Subpoena Dw.es Tecum to Register of Land Office. 299, Copies Commissioner of Indian Affairs Certification of. 270, Ch. 11 MANUAL OF FEDERAL PROCEDURE. 158 300. Copies Patent Office Records, Letters Patent, etc. 301. Copies Foreign Letters Patent. 302. Copies Printed Copies of Specifications and Drawings of Patents. 303. Copies Patent Office Kecords Trademarks. 304. Copies United States Consular Records. 305. Cop'ies United States Clerks' New Records in Certain States. 306. Copies United States Clerks' New Records North Carolina. 307. Judicial Notice Taken of the Seal of the Department of Commerce and Labor. 308. Burden of Proof Seizure Cases under Customs Duties Laws. S09. Reports of Investigations of Accidents from Failure of Boilers' Not Admissible in Damage Suits. 310. Government Paramount Title does not Affect Mining Titles Possessory Action. 311. Publication of Interstate Commerce Reports and Decisions as Evi- dence. 312. Proof of Signature and Handwriting. 313. Things as Evidence Under Alaska Prohibition Laws. 314. Sufficiency of Evidence to Convict Under Alaska Prohibition Laws. 315. Prime Facie Evidence Under District of Columbia Prohibition Law. 316. Same Payment of Special Taxes. 270. In General. Equity Rule 46 provides that "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 on the admissibility of all evidence offered as in actions at law. . . . ' (See chapter 50, post.) 861, Rev. Stats, (quoted 595, post), provides that "the mode of proof in the trials of actions at common law shall be by oral tes- timony and by examination of witnesses in open court, except as hereinafter provided." 721, Rev. Stats. ( 230, supra), provides that, except as other- wise provided, the laws of the several states "shall be regarded as thp rules of decision in trials at common law." The last-mentioned section has been held to apply to rules of evi- dence prescribed by the laws of the state in which the federal court was sitting. 1 The laws of the state relating to evidence means not only the statutes of the state, but also the decisions of its highest i Parker v. Moore. Ill Fed. 470. 159 EVIDENCE. Ch. 11, 270 courts respecting rules of evidence, 2 but not as to common-law rules of evidence. 3 The decided tendency in both law and equity is to conform to state rules of evidence as is indicated by the new rule 46, above mentioned, and recent amendment 858, Rev. Stats., as to com- petency of witnesses. ( 330, post.) The federal courts do not, however, follow the state practice, allowing the examination of a party before trial, 4 except in order- ing a surgical examination of the person of the plaintiff in an ac- tion for personal injuries, 5 and not then when there is no state statute. 6 Discovery by the production of books and papers in common-law actions is governed by 724, Rev. Stats. ( 571, post), and in equity by Equity Rule 58 (Chapter 43, post). State laws have been followed as to printed copies of state laws being prima facie evidence thereof. 7 Section 905, Rev. Stats. ( 274 below), provides for the authentication of state laws, although it has not been held mandatory and the statutes of Penn- sylvania were admitted in the District of Columbia, though not so authenticated. 8 So, also, the state law was followed as to exemption from process of a witness in attendance on court. 9 But state laws will not be followed where the federal statutes make other provisions. 10 This chapter contains a number of special federal statutes on evidence. 2 Nashua Savings Bank v. Anglo-American Land etc. Co., 189 U. S. 22&, 47 L. Ed. 782, 23 Sup. Ct. 517. 3 Union Pac. R. Co. v. Yatea, 79 Fed. 588, 40 L. E. A. 553, 25 C. C. A. 103. 4 Ex parte Fisk, 113 U. S. 713, 28 L. Ed. 1117, 5 Sup. Ct. 724. 5 Camden etc. R. Co. v. Stetson, 177 U. S. 172, 44 L. Ed. 721, 20 Sup. Ct 617 e Union Pac R. Co. r. Botsford, 141 U. S. 250, 35 L. Ed. 734, 11 Sup. Ct. 1000. 7 Beatrice v. Edminson, 117 Fed. 427, 54 C. C. A. 601. 8 Commercial & Farmers' Bank v. Patterson, 2 Cranch, 346, Fed. Caa. No. 3056. Ex parte Levi, 28 Fed. 651. 10 Potter v. National Bank, 102 U. S. 165, 26 L. Ed. 111. 271-274, Ch. 11 MANUAL OF FEDERAL PROCEDURE. 160 271. Statutes of United States Evidence of Little and Brown's Edition. 908, Rev. Stats. "The edition of the Laws and Treaties of the United States, published by Little & Brown, shall be com- petent evidence of the several public and private acts of Con- gress, and of the several treaties therein contained, in all the courts of law and equity and of maritime jurisdiction, and in all the tribunals and public offices of the United States, and of the several states, without any further proof or authenti- cation thereof." (Fed. Stats. Ann., 2d ed., title "Statutes"; 3 U. S. Comp. Stats. 1916, 1522.) 272. Same Supplement of Revised Statutes. 5 of Act April 9, 1890, c. 73. 1 .JOiS' J.IJEW Orfj 'IdlUflD 308. Burden of Proof Seizure Cases Under Customs Duties Laws. 909, Rev. Stats. "(Burden of proof, when it lies on claimant in seizure cases:) In suits or informations Torought, where any seizure is made pursuant to any act providing for or regulating the collection of duties on imports or ton- nage, if the property is claimed by any person, the burden of proof shall lie upon such claimant: Provided, That prob- able cause is shown for such prosecution, to be judged of by the court." (3 Fed. Stats. Ann., 2d ed., p. 322; 3 U. S. Comp. Stats. 1916, 1532.) 175 EVIDENCE. Ch, 11, 309-312 309. Reports of Investigations of Accidents from Failure of Boilers Not Admissible in Damage Suits. Part 5, Act Feb. 17, 1911, c. 103. "Neither said report nor any report of said investigation nor any part thereof shall be admitted as evidence or used for any ptfrpose in any suit or action for damages growing out of any matter men- tioned iu said report or investigation." (36 Stats. 916; Fed. Stats. Ann., 2d ed., title "Railroads"; 8 U. S. Comp. Stats. 1916, 8637 (2).) 310. Government Paramount Title does not Affect Mining Titles Possessory Action. 910, Rev. Stats. "No possessory action between persons, in any court of the United States, for the recovery of any mining title, or for damages to any such title, shall be affected by the fact that the paramount title to the land in which such mines lie is in the United States." (Fed. Stats. Ann., 2d ed., title "Mineral Lands, Mines and Mining"; 3 U. S. Comp. Stats. 1916, 1533.) 311. Publication of Interstate Commerce Reports and De- cisions as Evidence. Part 14, Act Feb. 4, 1887, c. 104, 24 Stats. 384, as amended 4, Act March 2, 1889, c. 382, 25 Stats. 859, and as atwndcd 5, Act June 29, 1906, c. 3591, 34 Stats. 589. "... The Commission may provide for the publication of its reports and decisions in such form and manner as may be best adapted for public information and use, and such authorized publica- tions shall be competent evidence of the reports and decisions of the Commission therein contained in all courts of the United States and of the several states without any further proof or authentication thereof. The Commission may also .cause to be printed for early distribution its annual reports." (4 Fed. Stats. Ann., 2d ed., p. 457 j 8 U. S. Comp. Stats. 1916, 8582 (3), p. 9195.) 312. Proof of Signature and Handwriting. Act February 26, 1913, c. 79. "In any proceeding before a court or judicial officer of the United States where the 313, Ch. 11 MANUAL OP FEDERAL PROCEDURE. 176 genuineness of the handwriting of any person may be involved, any admitted or proved handwriting of such person shall be competent evidence as a basis for comparison by witnesses, or by the jury, court, or officer conducting such proceeding,- to prove or disprove such genuineness." (37 Stats. 683 ; 3 Fed. Stats. Ann., 2d ed., p. 227; 3 U. S. Comp. Stats. 1916, 1471, Maxey v. U. S., 207 Fed. 327, 125 C. C. A. 77 ; Short v. U. S., 221 Fed. 248, 137 C. C. A. 104.) 313. Tilings as Evidence Under Alaska Prohibition Laws. Part 17, Act Feb. U, 1917, c. 53. "... if any such be found, to take into his possession and safely keep, to be pro- duced as evidence when required, all alcoholic liquors and all the means of dispensing the same, also all the paraphernalia or part of the paraphernalia of a barroom or other alcoholic liquor establishment, and any United States internal revenue tax receipt or certificate for the manufacture or sale of alcoholic liquor, effective for the period of time covering the alleged offense, and forthwith report all the facts to the dis- trict attorney or his deputy, and such alcoholic liquor or the means for dispensing same, or the paraphernalia of a barroom or other alcoholic liquor establishment, or any United States internal-revenue tax receipt or certificate for the sale of alcoholic liquor, effective as aforesaid, shall be prima facie evidence of the violation of the provisions of this Act." (Pamphlet Supp., Fed. Stats. Ann., Nos., 9-10, p. 9, title "Alaska"; U. S. Comp. Stats. 3643J, Adv. Sheets, 238 Fed. No. 5, p. 9.) 26, Act Feb. 14, 1917, c. 53. Internal Revenue Special Tax Stamp or Receipt Use as Evidence. "That the issuance by the United States of any internal revenue special tax stamp or receipt to any person as a dealer in intoxicating liquors shall be prima facie evidence of the sale of intoxicating liquors by such person during the time the stamp or receipt is in force and effect. "A copy of such stamp or receipt or of the record of the issuance thereof, certified to by a United States internal- revenue officer having charge of such record, is admissible as evidence in like case and with like effect as the original stamp or receipt." (Pamphlet Supp., Fed. Stats. Ann., Nos. 9-10, 177 EVIDENCE. Ch. 11, 314-315 p. 10, title "Alaska"; U. S. Comp. Stats. 3G43nn, Adv. Sheets, 238 Fed. No. 5, p. 12.) 314. Sufficiency of Evidence to Convict Under Alaska Pro- hibition Laws. 18, Act Feb. 14, 1917, c. 53. "That it shall not be neces- sary, in order to convict any person, company, house, associa- tion, copartnership, club, or corporation, his, its, or their agents, officers, clerks, or servants of manufacturing, importing, or selling alcoholic liquors, to prove the actual manufacture, importing, sale, delivery of, or payment for any alcoholic liquors, but the evidence of having or keeping them in hand, stored or deposited, taking orders for, or offering to sell or barter, or exchanging them for goods or merchandise, or giving them away, shall be sufficient to convict ; nor shall it be neces- sary in a warrant, information, or indictment to specify the particular kind of alcoholic liquor which is made the subject of a charge of violation of this Act." (Pamphlet Supp., Fed. Stats. Ann., Nos. 9-10, p. 9, title "Alaska"; U. S. Comp. Stats., 3643jj, Adv. Sheets, 238 Fed. No. 5, p. 10.) 315. Prima Facie Evidence Under District of Columbia Pro- hibition Law. Part 10, Act of Mch. 3, 1917, c. 165. Sale of Intoxicat- ing Liquors District of Columbia; Evidence. " ... to take into his possession and safely keep, to be produced as evidence when required, all alcoholic liquors and all the means of dispensing the same, also all the paraphernalia or part of the paraphernalia of a barroom or other alcoholic liquor es- tablishment, and any United States internal revenue tax re- ceipt or certificate for the manufacture or sale of alcoholic liquor effective for the period of time covering the alleged offense, and forthwith report all the facts to the corporation counsel of the District of Columbia, and such alcoholic liquor or the means for dispensing same, or the paraphernalia of a barroom or other alcoholic liquor establishment, or any United States internal revenue tax receipt or certificate for the sale of alcoholic liquor effective as aforesaid, shall be prima facie evidence of the violation of the provisions of this Act." (U. S. Comp. Stats., 3369 ii, Adv. Sheets, 239 Fed. No. 2, p. 123.) Manual 12 316, Ch. 11 MANUAL OP FEDERAL PROCEDURE. 178 316. Same Payment of Special Taxes. 12, Act Melt. 3, 1917, c. 165. "That the payment of the special tax required of wholesale or retail liquor dealers by the United States by any person or persons other than manu- facturers or druggists licensed under section five of this Act, within the District of Columbia, shall be prima facie evidence that such person or persons are engaged in keeping and sell- ing, offering and exposing for sale alcoholic liquors contrary to the provisions of this Act, and a certificate from the collector of internal revenue, his agents, clerks, or deputies showing the payment of such tax, and the name or names of person to whom issued, and the names of the person or persons, if any, associated with the person to whom such tax receipt is issued, shall be sufficient evidence of the payment of such tax and of the association of such persons for the selling and keeping, offering and exposing for sale of liquors contrary to the provisions of this Act in all trials or legal inquiries." (U. S. Comp. Stats., 3369jj, Adv. Sheets, 239 Fed. No. 2, p. 124.) 179 WITNESSES. Ch. 12 CHAPTER 12. WITNESSES. SEC. 330. Competence of Witnesses Determined by State Laws. 331. Competency of Witnesses in Prosecutions Under Alaska Prohibition Laws. 332. Perjury not Now a Disqualification. 333. Not Disqualified by Claiming Compensation Under Customs Revenue Laws. 334. Officers and Informers not Disqualified in Suits for Fines, Penalties, or Forfeitures. 335. Immunity of Witnesses in Cases Under Commerce and Anti-trust Laws. 336. Immunity in Criminal Cases. 337. Same Testimony Given Before Congress. 338. Defendant as Witness in Criminal Proceedings. 339. Compulsory Process for Witnesses in Criminal Cases. 340. Recognizance of Witnesses Criminal Cases. 341. Same In Vermont. 342. Same On Behalf of the United States by District Attorney. 343. Subpoena for Witnesses in Another District. 344. Subpoena and Attendance of Witnesses for United States. 345. Subpoena for Witnesses for Indigent Defendant in Criminal Cases. 346. Enforcing Attendance and Testimony of Witnesses. 347. Oourt's Power to Punish Witnesses for Contempt. 348. Fees and Mileage of Witnesses Who Testify on Letters Rogatory. 349. Amount of Fees and Mileage of Witnesses. 350. Fees and Mileage in Certain States Double Mileage Prohibited. 351. Subpoena for Witnesses in Contested Patent Cases. 352. Enforcing Attendance and Testimony of Witnesses in Patent Cases. 353. Fees of Witnesses in Patent Cases. 354. Subpoena to Witnesses in Claim Cases Against United |5tates Pend- ing in Departments. 355. Enforcing Attendance and Testimony of Witnesses in Claim Cases Against United States Pending in Departments. 356. Fees of Witnesses in Claim Cases Against United States Pending in Departments. 357. Compulsory Attendance of Witnesses Under Interstate Commerce Act. 358. Compulsory Attendance of Witnesses Under Income Tax Law. 359. Administration of Oaths. 360. Discovery Under Act for National Security and Defense Stimulating Agriculture. 361. Compelling Attendance of Witnesses, etc., Under Act Establishing Bureau of War Risk Insurance. 330-332, Ch. 12 MANUAL OF FEDERAL PROCEDURE. 180 330. Competence of Witnesses Determined by State Laws. ' 858, Rev. Stats. ' ' The competency of a witness to testify in any civil action, suit, or proceeding in the courts of the United States shall be determined by the laws of the state or territory in which the court is held." (Fed. Stats. Ann., 2d ed., title "Witnesses"; 3 U. S. Comp. Stats. 1916, 1464.) The phrase "civil actions" includes all judicial controversies in which the rights of property are involved whether between private parties or such parties and the government. 1 An objec- tion to the competency of a witness is waived, where such objection was not made at the time the witness was sworn nor at any time during trial. 2 331. Competency of Witnesses in Prosecutions Under Alaska Prohibition Laws. Part 16, Act Feb. 14, 1917, c. . "... in all cases the members, shareholders, associates or employees in any club or association mentioned in this section shall be competent witnesses to prove any violations of the provisions of this sec- tion of this Act, or of any fact tending thereto ; and no person shall be excused from testifying as to any offense committed by another against any of the provisions of this Act by reason of his testimony tending to criminate himself, but the tes- timony given "by such person shall in no case be used against him. ..." (Pamphlet Supp., Fed. Stats. Ann., Nos. 9-10, p. 6, title "Alaska.") 332. Perjury not Now a Disqualification. 125 of the Grim. Code, Fed. Stats. Ann., 2d ed., title "Penal Laws," 10 U. S. Comp. Stats. 1916, 10,295, supersedes 5392, Rev. Stats., making perjury of a witness a disqualification. The new provision omits to make such a witness incompetent. So, also, subornation of perjury would not disqualify a witness under 126 of the Crim. Code. (Fed. Stats. Ann., 2d ed., title "Penal Laws"; 10 U. S. Comp. Stats. 1916, 10,296.) 1 Green v. United States, 9 Wall. (U. S.) 655, 19 L. Ed. 806; United States v. Ten Thousand Cigars, Woolw. 123, Fed. Gas. 16.451. 2 Bise v. United States, 144 Fed. 374, 7 Ann. Caa. 165, 74 C. C. A. 1. 181 WITNESSES. Ch. 12, 333-336 333. Not Disqualified by Claiming Compensation Under Customs Revenue Laws. 8, Act June 22, 1874, c. 391. "That no officer, or other person entitled to or claiming compensation under any pro- vision of this act, shall be thereby disqualified from becoming a witness in any action, suit, or proceeding for the recovery, mitigation, or remission thereof, but shall be subject to ex- amination and cross-examination in like manner with other witnesses, without being thereby deprived of any right, title, share, or interest in any fine, penalty, or forfeiture to which such examination may relate; and in every such case the de- fendant or defendants may appear and .testify and be ex- amined and cross-examined in like manner." (3 Fed. Stats. Ann., 2d ed., p. 225; 8 U. S. Comp. Stats. 1916, 5802.) 334. Officers and Informers not Disqualified in Suits for Fines, Penalties or Forfeitures. 5295, Rev. Stats. "Any officer or other person entitled to or interested in a part or share of any fine, penalty, or for- feiture incurred under any law of the United States, may be examined as a witness in any of the proceedings for the re- covery of such fine, penalty, or forfeiture by either of the parties thereto, and such examination shall not deprive such witness of his share or interest in such fine, penalty, or for- feiture." (3 Fed. Stats. Ann., 2d ed., p. 338; 10 U. S. Comp. Stats. 1916, 10,137.) 335. Immunity of Witnesses in Cases Under Commerce and Anti-trust Laws. Act June 30, 1906, c. 3920. Extends "only to a natural person who, in obedience to a subpoena, gives testimony under oath or produces evidence, documentary or otherwise, under oath." (34 Stats. 798; Fed. St&U Ann., 2d ed., title "Witnesses"; 6 U. S. Comp. Stats. 1916, 8580.) 336. Immunity in Criminal Cases. Part 5th Amend. U. S. Const. "Xo person . . . shall be compelled in any criminal case to be a witness against him- self." (11 U. S. Comp. Stats., 1916, p. 14,320.) 337-339, Ch. 12 MANUAL OP FEDERAL PROCEDURE. 182 The seizure or compulsory production of a man's private papers to be used against him is equivalent to compelling him to be a witness against himself. 3 In Prosecutions Under Prohibition Laws District of Columbia. Part 7, Act March 3, 1917, c. 165. "And no person shall be excused from testifying as to any offense committed by another against any of the provisions of this Act by reason of his testimony tending to criminate himself, but the testimony given by such person shall in no case be used against him." (U. S. Comp. Stats., 3369h, Adv. Sheets, 239 Fed. No. 2, p. 122.) 337. Same Testimony Given Before Congress. 859, Rev. Stats. "No testimony given by a witness be- fore either House, or before any committee of either House of Congress, shall be used as evidence in any criminal pro- ceeding against him in any court, except in a prosecution for perjury committed in giving such testimony. But an official paper or record produced by him is not within the said privilege." (3 Fed. Stats. Ann., 2d ed., p. 166; 3 U. S. Comp. Stats. 1916, 1467.) 338. Defendant as Witness in Criminal Proceeding's. Act March 16, 1878, c. 37. "That in the trial of all indict- ments, informations, complaints, and other proceedings against persons charged with the commission 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 com- petent witness. And his failure to make such request shall not create any presumption against him." (20 Stats. 30; Fed. Stats. Ann., 2d ed., title "Witnesses"; 3 U. S. Comp. Stats. 1916, 1465.) 339. Compulsory Process for Witnesses in Criminal Cases. Part Sixth Amend. U. S. Const. "In all criminal prosecu- tions, the accused shall enjoy the right ... to be confronted 3 Boyd v. United States, 116 U. S. 616, 29 L. Ed. 746, 6 Sup. Ct. 524, Ip re Kanter ? 117 Fed. 356, 133 WITNESSES. Ch. 12, 340-342 with the witnesses against him ; to have compulsory process for obtaining witnesses in his favor." (11 U. S. Comp. Stats. 1916, p. 14,388.) 340. Recognizance of Witnesses Criminal Cases. 879, Rev. Stats. "Any judge or other officer who may be authorized to arrest and imprison or bail persons charged with any crime or offense against the United States may, at the hearing of any such charge, require of any witness pro- duced against the prisoner, on pain of imprisonment, a recog- nizance, with or without sureties, in his discretion, for his appearance to testify in the case. And where the crime or offense is charged to have been committed on the high seas, or elsewhere within the admiralty and maritime jurisdiction of the United States, he may, in his discretion, require a like recognizance, with such sureties as he may deem necessary, of any witness produced in behalf of the accused, whose tes- timony in his opinion is important, and is in danger of being otherwise lost. ' ' (Fed. Stats. Ann., 2d ed., title ' ' Witnesses ' ' ; 3 U. S. Comp. Stats. 1916, 1490.) 341. Same In Vermont. 880, Rev. Stats. "In the district of Vermont, all recog- nizances of witnesses taken by any magistrate in said district, for their appearance to testify in any case cognizable either in the district or circuit court thereof, shall be to the circuit court next thereafter to be held in the said district." {Fed. Stats. Ann., 2d ed., title "Witnesses"} 3 U. S. Comp. Stats. 1916, 1491.) 342. Same On Behalf of the United States by District Attorney. 881, Rev. Stats. "Any judge of the United States, on the application of a district attorney, and on being satisfied by proof that the testimony of any person is competent and will be necessary on the trial of any criminal proceeding in which the United States are parties or are interested, may compel such person to give recognizance, with or without sureties, at his discretion, to appear to testify therein; and, for that purpose, may issue a warrant against such person, under hjs; 343-344, Ch. 12 MANUAL OF FEDERAL PROCEDURE. 181 hand, with or without seal, directed to the marshal or other officer authorized to execute process in behalf of the United States, to arrest and bring before him such person. If the person so arrested neglects or refuses to give recognizance in the manner required, the judge may issue a warrant of com- mitment against him, and the officer shall convey him to the prison mentioned therein. And the said person shall remain in confinement until he is removed to the court for the pur- pose of giving his testimony, or until he gives the recognizance required by said judge." (Fed. Stats. Ann., 2d ed., title "Witnesses"; 3 U. S. Comp. Stats. 1916, 1492.) 343. Subpoena for Witnesses in Another District. 876, Rev. Stats. "Subpoenas for witnesses who are re- quired to attend a court of the United States, in any district, may run into any other district: Provided, That in civil causes the witnesses living out of the district in which the. court is held do not live at a greater distance than one hun- dred miles from the place of holding the same." (Fed. Stats. Ann., 2d ed., title "Witnesses"; 3 U. S. Comp. Stats. 1916, 1487.) In civil actions if a witness lives out of the district at a greater distance than one hundred miles from the place of holding court, his testimony must be taken by deposition. 4 In criminal cases there seems to be no limit. 5 344. Subpoena and Attendance of Witnesses for United States. 577, Rev. Stats. ' ' Witnesses who are required to attend any term of a [circuit or] district court on the part of the United States shall be subpoenaed to attend to testify gener- ally on their behalf, and not to depart the court without leave thereof, or of the district attorney; and under such process they shall appear before the grand or petit jury, or both, as they may.be required by the court or district attorney." (Fed. Stats. Ann., 2d ed., title "Witnesses"; 3 U. S. Comp. Stats. 1916, 1488.) 4 Smith v. Chicago etc. E. Co., 38 Fed. 321. 5 United States v. Potter, Boyce U. S. Pr. 98, 27 Fed. Gas. No. 16,075. 185 WITNESSES. Ch. 12, 345-348 345. Subpoena for Witnesses for Indigent Defendant in Criminal Cases. 875, Rev. Stats. "Whenever any person indicted in a court of the United 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 dis- trict 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 witness 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." (Fed. Stats. Ann., 2d ed., title "Witnesses"; 3 U. S. Comp. Stats. 1916, 1489.) 346. Enforcing Attendance and Testimony of Witnesses. 4073, Rev. Stats. ' ' If any person shall refuse or neglect to appear at the time and place mentioned in the summons issued, in accordance with section forty hundred and seventy- one, or if upon his appearance he shall refuse to testify, he shall be liable to the same penalties as would be incurred for a like offense on the trial of a suit in the district court of the United States." (3 Fed. Stats. Ann., 2d ed., p. 223; 1 U. S. Comp. Stats. 1916, 7621.) 347. Court's Power to Punish Witnesses for Contempt. 268, Jud. Code (Re-enacting 725, Rev. Stats.). "The said courts shall have power ... to punish, by fine or imprison- ment, at the discretion of the court, contempts of their author- ity : ... the disobedience or resistance ... by any . . . wit- ness ... to any lawful writ, process, order, rule, decree, or command of said courts." (36 Stats. 1163; 5 Fed. Stats. Ann., 2d ed., p. 1009; 2 U. S. Comp. Stats. 1916, 1245.) 348. Fees and Mileage of Witnesses Who Testify on Letters Rogatory. 4074, Rev. Stats. "Every witness who shall so appear and testify shall be allowed, and shall receive from the party 349-350, Ch. 12 MANUAL OP PEDEHAL PROCEDURE. 186 at whose instance he shall have been summoned, the same fees and mileage as are allowed to witnesses in suits depending in the district courts of the United States." (Fed. Stats. Ann., 2d ed., title "Witnesses"; 7 U. S. Comp. Stats. 1916, 7622.) 349. Amount of Fees and Mileage of Witnesses. 848, Rev. Stats. ' ' For each day 's attendance in court, or before any officer pursuant to law, one dollar and fifty cents, and five cents a mile for going from his place of residence to the place of trial or hearing, and five cents a mile for return- ing. When a witness is subpoenaed in more than one cause between the same parties, at the same court, only one travel fee and one per diem compensation shall be allowed for attend- ance. Both shall be taxed in the case first disposed of, after which the per diem attendance fee alone shall be taxed in the other cases in the order in which they are disposed of. "When a witness is detained in prison for want of security for his appearance, he shall be entitled, in addition to his sub- sistence, to a compensation of one dollar a day." (Fed. Stats. Ann., 2d ed., title "Witnesses''} 2 U. S. Comp. Stats. 1916, 1452.) 350. Fees and Mileage in Certain States Double Mileage Prohibited. 1, Act May 27, 1908, c. 200. "Jurors and witnesses in the United States courts in the States of Wyoming, Montana, Washington, Oregon, California, Nevada, Idaho, Colorado, and Utah, and in the Territories of New Mexico and Arizona shall be entitled to receive for actual attendance at any court or courts and for the time necessarily occupied in going to and returning from the same, three dollars a day, and fifteen cents for each mile necessarily traveled over any stage line, or by private conveyance, and five cents for each mile by any rail- way or steamship in going to and returning from said courts : Provided, That no constructive or double mileage fees shall be allowed by reason of any person being summoned as both a witness and juror, or as a witness in two or more cases pend- ing in the same court and triable at the same term thereof." (35 Stats. 377; Fed. Stats. Ann., 2d ed., title "Witnesses"; 2 U. S. Comp. Stats. 1916, 1453, p. 2339.) 187 WITNESSES. Ch. 12, 351-353 351. Subpoena for Witnesses in Contested Patent Cases. 4906, Rev. Stats. "The clerk of any court of the United States, for any district 4or territory wherein testimony is to be taken for use in any contested case pending in the Patent Office, shall, upon the application of any party thereto, or of his agent or attorney, issue a subpoena for any witness residing or being within such district or territory, commanding him to appear and testify before any officer in such district or ter- ritory authorized to take depositions and affidavits, at any time and place in the subpoena stated. But no witness shall be re- quired to attend at any place more than forty' miles from the place where the subpoena is served upon him." (Fed. Stats. Ann., 2d ed., title "Witnesses"; 8 U. S. Comp. Stats. 1916, 9451.) 352. Enforcing Attendance and Testimony of Witnesses in Patent Cases. 4908, Rev. Stats. "Whenever any witness, after being duly served with such subpoena, neglects or refuses to ap- pear, or after appearing refuses to testify, the judge of the court whose clerk issued the subpoena may, on proof of such neglect or refusal, enforce obedience to the process, or punish the disobedience, as in other like cases. But no witness shall be deemed guilty of contempt for disobeying such subpoena, unless his fees and traveling expenses in going to, returning from, and one day's attendance at the place of the examina- tion, are paid or tendered him at the time of the service of the subpoena; nor for refusing to disclose any secret inven- tion or discovery made or owned by himself." (Fed. Stats. Ann., 2d ed., title "Witnesses"} 8 U. S. Comp. Stats. 1916, 9453.) 353. Fees of Witnesses in Patent Cases. 4907, Rev. Stats. "Every witness duly subpoenaed and in attendance shall be allowed the same fees as are allowed to witnesses attending the courts of the United States." (Fed. Stats. Ann., 2d ed., title "Witnesses"; 8 U. S. Comp. Stats. 1916, 9452.) 354-357, Ch. 12 MANUAL OP FEDERAL PROCEDURE. 188 354. Subpoena to Witnesses in Claim Cases Against United States Pending in Departments. 184, Rev. Stats. "Any hcacj of a department or bureau in which a claim against the United States is properly pending may apply to any judge or clerk of any court of the United States, in any state, district, or territory, to issue a subpoena for a witness being within the jurisdiction of such court, to appear at a time and place in the subpoena stated, before any officer authorized to take depositions to be used in the courts of the United States, there to give full and true answers to such written interrogatories and cross-interrogatories as may be submitted with the application, or to be orally examined and cross-examined upon the subject of such claim." (2 Fed. Stats. Ann., 2d ed., p. 175; 1 U. S. Comp. Stats. 1916, 266.) 355. Enforcing Attendance and Testimony of Witnesses in Claim Cases Against United States Pending in Departments. 186, Rev. Stats. "If any witness, after being duly served with such subpoena, neglects or refuses to appear, or, appear- ing, refuses to testify, the judge of the district in which the subpoena issued may proceed, upon proper process, to enforce obedience to the subpoena, or to punish the disobedience in like manner as any court of the United States may do in case of process of subpoena ad testificandum issued by such court. ' ' (2 Fed. Stats. Ann., 2d ed., p. 176 ; 1 U. S. Comp. Stats. 1916, 268.) 356. Fees of Witnesses in Claim Cases Against United States Pending in Departments. 185, Rev. Stats. ' ' Witnesses subpoenaed pursuant to the preceding section shall be allowed the same compensation as is allowed witnesses in the courts of the United States." (2 Fed. Stats. Ann., 2d ed., p. 175; 1 U. S. Comp. Stats. 1916, 267.) 357. Compulsory Attendance of Witnesses Under Interstate Commerce Act. Part 3, Act Feb. 19, 1903, c. 708. "And in proceedings under this act and the acts to regulate commerce, the said 189 WITNESSES. Ch. 12, 358-359 courts shall have the power to compel the attendance of wit- nesses, both upon the part of the carrier and the shipper, who shall be required to answer on all subjects relating directly or indirectly to the matter in controversy, and to compel the pro- duction of all books and papers, both of the carrier and the shipper, which relate directly or indirectly to such transaction ; the claim that such testimony or evidence may tend to crimi- nate the person giving such evidence shall not excuse such person from testifying or such corporation producing its books and papers, but no person shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter, or thing concerning which he may testify or produce evidence, documentary or otherwise, in such proceeding." (32 Stats. 848 ; 4 Fed. Stats. Ann., 2d ed., p. 566; 8 U. S. Comp. Stats. 1916, 8599.) 358. Compulsory Attendance of Witnesses Under Income Tax Law. 20, Act Sept. 8, 1916, c. 463. "That jurisdiction is hereby conferred upon the district courts of the United States for the district within which any person summoned under this title to appear to testify or to produce books shall reside, to compel such attendance, production of books, and testimony by appro- priate process." (Pamphlet Supp., Fed. Stats. Ann., 2d ed., title Internal Revenue, No. 8, p. 97; 6 U. S. Comp. Stats. 1916, 63,365, p. 7359.) 359. Administration of Oaths. 266, Jud. Code (see 347, supra}. "The said courts shall have power to impose and administer all necessary oaths. . . . ' 183, Rev. Stats., as Amended by Act Feb. 13, 1911, c. 43. "Any officer or clerk of any of the departments lawfully de- tailed to investigate frauds on, or attempts to defraud, the government, or any irregularity or misconduct of any officer or agent of the United States, and any officer of the Army, Navy, Marine Corps, or Revenue-cutter Service detailed to conduct an investigation, and the recorder, and if there be none the presiding officer, of any military, naval, or revenue- cutter service board appointed for such purpose, shall have authority to administer an oath to any witness attending to 359, Cll. 12 MANUAL OF FEDERAL PROCEDURE. 190 testify or depose in the course of such investigation." (36 Stats. 898; Fed. Stats. Ann., 2d ed., title "Public Offi- cers"; 1 U. S. Comp. Stats. 1916, 265, p. 114.) Part 12, Act Sept. 24, 1917, c. . (i) "The comptroller and the .auditor, and such persons as may be authorized in writ- ing by either of them, may administer oaths to American citi- zens in respect to any matter within the jurisdiction of either of said officers and certify the official character, when known, of any foreign officer whose jurat or certificate may be necessary on any paper to be filed with them." (Adv. Sheets, 244 Fed. No. 3, p. 323; U. S. Comp. Stats. 1916, 420a.) Act March 4, 1917, c. 179. "That hereafter, in the perform- ance' of the duties required of the Department of Agriculture by the provisions of this Act relating to the Bureau of Markets, the Secretary of Agriculture shall have power to administer oaths, examine witnesses, and call- for the production of books and papers." (U. S. Comp. Stats. 1916, 795a; Adv. Sheets, 239 Fed. No. 3, p. 146.) Act Jan. 25, 1895, c. 45, as Amended, Act March 3, 1901, c. 834, and Act March 4, 1917, c. 180. "That judges advo- cate of naval general courts-martial and courts of inquiry, and all commanders in chief of naval squadrons, commandants of navy yards and stations, officers commanding vessels of the Navy, and recruiting officers of the Navy, and the adjutant and inspector, assistants adjutant and inspector, commanding officers, recruiting officers of the Marine Corps, and such other officers of the Regular Navy and Marine Corps, of the Naval Reserve Force, of the Marine Corps Reserve, and of the National Naval Volunteers as may be hereafter designated by the Secretary of the Navy, be, and they are hereby, author- ized to administer oaths for the purposes of the administra- tion of naval justice and for other purposes of naval admin- istration." (U. S. Comp. Stats. 1916, 3037; Adv. Sheets, 239 Fed. No. 3, p. 154.) Part 17, Act Feb. 4, 1887, as Amended ~by 2, Act Aug. 9, 1917, c. - . "That . . . Any member of the (Interstate Commerce) commission may administer oaths and affirmations and sign subpoenas." Act Oct. 6, 1917, c. . " [Affidavits before whom taken pei-sons in military or naval service.] That during the con- tinuance of the present Avar with Germany, and until his dis- 191 WITNESSES. Ch. 12, 360 charge from service, any man serving in the armed forces of the United States, who, prior to the beginning of his services . was a settler, an applicant, or entryman under the land laws of the United States, or who has, prior to enlistment, filed a contest, with the view of exercising preference right of entry therefor, may make any affidavit required by law or regulation of the department, affecting such application, entry, or con- test, or necessary to the making of entry in the case of the successful termination of such contest awarding him prefer- ence right of entry, before his commanding officer as provided in section twenty-two hundred and ninety-three of the Revised Statutes of the United States, which affidavits shall be as bind- ing in law and with like penalties as if taken before the Register of the United States Land Office." (Pamphlet Supp., Fed. Stats. Ann. No. 12, p. 110, title " Public Lands.") 360. Discovery Under Act for National Security and De- fense Stimulating Agriculture. Act Aug. 10, 1917, c. . 2. [Authority of Secretary of Agriculture investigation relative to production, etc., of food.] "That the Secretary of Agriculture, with the approval of the President, is authorized to investigate and ascertain the demand for, the supply, consumption, costs, and prices of, and the basic facts relating to the ownership, production, transpor- tation, manufacture, storage, and distribution of, foods, food materials, feeds, seeds, fertilizers, agricultural implements and machinery, and any article required in connection with the production, distribution, or utilization of food. It shall be the duty of any person, when requested by the Secretary of Agri- culture, or any agent acting under his instructions, to answer correctly, to the best of his knowledge, under oath or other- wise, all questions touching his knowledge of any matter au- thorized to be investigated under this section, or to produce all books, letters, papers, or documents in his possession, or under his control, relating to such matter. Any person who shall, within a reasonable time to be prescribed by the Secre- tary of Agriculture, not exceeding thirty days from the date of the receipt of the request, willfully fail or refuse to answer such questions or to produce such books, letters, papers, or documents, or who shall willfully give any answer that is false or misleading, shall be guilty of a misdemeanor, and upon 361, Ch. 12 MANUAL OF FEDERAL PROCEDURE. li/2 conviction thereof, shall be punished by a fine not exceeding $1,000 or by imprisonment not exceeding one year, or both." (Pamphlet Supp., Fed. Stats. Ann. No. 12, p. 2, title "Agri- culture.") 361. Compelling- Attendance of Witnesses, etc., Under Act Establishing Bureau of War Risk Insurance. Act Oct. 6, 1917, c. . "15. That for the purposes of k this Act, the director, commissioners, and deputy commission- ers shall have power to issue subpoenas for and compel the attendance of witnesses within a radius of one hundred miles, to require the production of books, papers, documents, and other evidence, to administer oaths and to examine witnesses upon any matter within the jurisdiction of the bureau. The director may obtain such information and such reports from officials and employees of the departments of the Government of the United States and of the States as may be agreed upon by the heads of the respective departments. In case of dis- obedience to a subpoena, the bureau may invoke the aid of any district court of the United States in requiring the attend- ance and testimony of witnesses and the production of docu- mentary evidence, and such court, within the jurisdiction of which the inquiry is carried on, may, in case of contumacy or refusal to obey a subpoena issued to any officer, agent, or employee of any corporation or other person, issue an order requiring such corporation or other person to appear before the bureau, or to give evidence touching the matter in ques- tion ; and any failure to obey such order of the court may be punished by such court as a contempt thereof. Any person so required to attend as a witness shall be allowed and paid the same fees and mileage as are paid witnesses in the district courts of the United States." (Pamphlet Supp., Fed. Stats. Ann. No. 12, p. 152, title "War Dept, etc.) J 93 DEPOSITIONS. Ch. 13, 370 CHAPTER 13. DEPOSITIONS. SEO. 370. In General. 371. Time for Taking Depositions at Law. 372. Time for Taking Depositions in Equity. 373. Same Depositions in Equity After Issue. 374. Grounds for Depositions in Equity: When Allowed by Statute, or for Good and Exceptional Cause. 375. Depositions De Bene Esse Conditions for Taking and Using. 376. Officers Before Whom Depositions De Bene Esse may be Taken. 377. Notice of Taking Depositions De Bene Esse. 378. Compelling Attendance of Witness Depositions De Bene Esse. 379. Mode of Taking Depositions De Bene Esse. 380. Equity Rule as to Form of Deposition. 381. Equity Rule as to Objections to Evidence. 382. Equity Rule as to Signing Deposition. 383. Delivery into Court of Depositions De Bene Esse. 384. Depositions Under a Commission. 385. Witnesses Exempt from Attendance Depositions Under a Commission. 386. Compelling Attendance and Testimony of Witnesses for Depositions Under Commission. 387. Compelling Production of Papers, Written Instruments, Books or Docu- ments in Taking Depositions Under a Commission. 388. Depositions to Perpetuate Testimony Under State Daws Admissible in Court's Discretion. 389. Depositions may be Taken in Mode Prescribed by State Law. 39P. Depositions in Equity Under Court Order Before Commissioner, Master or Examiner. 391. Same Notice. 392. Deposition in Equity Published on Filing. 393. Letters Rogatory or Commissions to Take Depositions of Witnesses in Foreign Countries. 394. Taking Testimony to be Used in Foreign Countries. 395. Same Witness Need not Criminate Himself. 396. Publicity in Taking Depositions in Anti-trust Cases. 370. In General. Depositions in law actions can only be taken on grounds specified in the federal statutes, and in equity "when allowed by statute or for good and exceptional cause for Manual 18 371-372, Ch. 13 MANUAL OF FEDERAL PROCEDURE. 19-1 departing from the general rule." (Equity Rule 47, 373, 374, post.) The federal statutes authorize two classes of depositions: (1) On notice, de bene esse, that is to say, provisionally anticipating that it will be impossible to produce the witness in open court for the reasons specified in 863, Kev. Stats. ( 375 et seq., post) ; (2) on commission under 866, Rev. Stats. ( 384, post). The manner of taking these depositions is specified for de bene esse in 863-865, Rev. Stats. ( 376 et seq., post), and on commis- sion in 866, 868 ; 869, 870, Rev. Stats. ( 384 et seq., post) ; the latter kind of depositions not being affected by 863-865, Rev. Stats. Depositions may also be taken under act March 9, 1892, chapter 14 ( 389, post) in the mode, though not on the grounds, prescribed by the laws of the state, and under 867, Rev. Stats. ( 388, post), a federal court in its discretion may admit in evidence in any cause before it any deposition taken in perpetuam rei memo- riam, under state law. Depositions in equity may also be taken under order of court ( 374 et seq., post). Letters rogatory or on commission are used to obtain testimony of witnesses in foreign countries ( 393, post). Depositions may be taken to be used in foreign countries under 4071, 4072, Rev. Stats. ( 394 et seq., post). 371. Time for Taking Depositions at Law. At law, the stat- ute does not designate the time for taking depositions. In provid- ing for special notice whenever by reason of want of an attorney of record the giving of notice as therein required shall be imprac- 'ticable, possibly the statute implies that such depositions may be taken before issue joined. 372. Time for Taking Depositions in Equity. Equity Rule 54. "After a cause is at issue, depositions may be taken as provided by 863, 865, 866, and 867, Revised Statutes. But .if in any case no notice has been given the opposite party of the time and place of taking the deposition. 195 DEPOSITIONS. Ch. 13, 373-374 he shall, upon application and notice, be entitled to have the witness examined orally before the court or to a cross-exam- ination before an examiner or like officer, or a new deposition taken with notice, as the court or judge under all the circum- stances shall order." (3 U. S. Comp. Stats. 1916, 1536, p. 2519; Simkins' Federal Equity Suit, 3d ed., pp. 492, 497, 514. 539.) It will be noted from the above, that depositions taken in equity suits de bene esse or on commission under the federal statutes are only so taken after the cause is at issue. If necessity exists for taking depositions before cause is at issue, such depositions should be taken under Rule 47 ( 374, below) on affidavit showing good and exceptional cause for departing from the general rule and an order of court specifying the notice and terms for taking. Time for taking depositions in equity after issue is set out in the following section: 373. Same Depositions in Equity After Issue. Last Part Equity Rule 47. "... 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 depositions; and rebutting depositions by either party within twenty days after the time for taking original depositions expires." (3 U. S. Comp. Stats. 1916. 1536, p. 2516; Foster's Federal Practice, 5th ed., p. 1131, 352.) 374. Grounds for Depositions in Equity : When Allowed by Statute, or for Good and Exceptional Cause. First Part Equity Pule 47. "The court, upon application of either party, when allowed by statute, or for good and ex- ceptional cause for departing from the general rule, to be shown by affidavit, may permit the deposition of named wit- nesses, to be used before the court or upon a reference to a master, to be taken before an examiner or other named officer, 375-376, Ch. 13 MANUAL OF FEDERAL, PROCEDURE. 196 upon the notice, and terms specified in the order. . . . ' (3 U. S. Comp. Stats. 1916, 1536, p. 2516; Foster's Federal Practice, 5th ed., p. 1131, 352.) 375. Depositions De Bene Esse Conditions for Taking and Using. Part 863, Rev. Stats. "The testimony of any witness may be taken in any civil cause depending in a district or circuit court by deposition de bene esse, when the witness lives at a greater distance from the place of trial than one hundred miles, or is bound on a voyage to sea, or is about to go out of the United States, or out of 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. . . . ' (3 Fed. Stats. Ann., 2d ed., p. 172; 3 U. S. Comp. Stats. 1916, 1472.) Last Part 865, Rev. Stats. "... But unless it appears to the satisfaction of the court that the witness is then dead, or gone out of the United States, or to a greater distance than one hundred miles from the place where the court is sitting, or that, by reason of age, sickness, bodily infirmity, or imprison- ment, he is unable to travel and appear at court, such deposi- tion shall not be used in the cause." (3 Fed. Stats. Ann., 2d ed., p. 185; 3 U. S. Comp. Stats. 1916, 1474.) 376. Officers Before Whom Depositions De Bene Esse may be Taken. Part 863, Rev. Stats. "... The deposition may be taken before any judge of any court of the United States, or any commissioner of a circuit court, or any clerk of a district or circuit court, or any chancellor, justice, or judge of a supreme court, mayor or chief magistrate of a city, judge of a county court or court of common pleas of any of the United States, or any notary public, not being of counsel or attorney to either of the parties, nor interested in the event of the cause. . . . ' (3 Fed. Stats. Ann., 2d ed., p. 172; 3 U. S. Comp. Stats. 1916, 1472.) Notaries may Take Depositions. Act Aug. 15, 1876, c. 304. "That notaries public of the sev- eral states, territories, and the District of Columbia be and they 197 DEPOSITIONS. Ch. 13, 377 are hereby, authorized to take depositions, and do all other acts in relation to taking testimony to be used in the courts of the United States, take acknowledgments and affidavits, in the same manner and with the same effect as commissioner of the United States circuit court may now lawfully take or do." (19 Stats. 206; 6 Fed. Stats. Ann., 2d ed., p. 1245; 3 U. S. Comp. Stats. 1916, 1475.) 377. Notice of Taking Depositions De Bene Esse. Part 863, Rev. Stats. " . . . Reasonable notice must first be given in writing by the party or his attorney proposing to take such deposition, to the opposite party or his attorney of record, as either may be nearest, which notice shall state the name of the witness and the time and place of the taking of his deposition; and in all cases in rem, the person having the agency or possession of the property at the time of seizure shall be deemed the adverse party, until a claim shall have been put in; and whenever, by reason of the absence from the dis- trict and want of an attorney of record or other reason, the giving of the notice herein required shall be impracticable, it shall be lawful to take such depositions as there shall be urgent necessity for taking, upon such notice as any judge author- ized to hold courts in such circuit or district shall think rea- sonable and direct." (3 Fed. Stats. Ann., 2d ed., p. 172; 3 U. S. Comp. Stats. 1916, 1472.) FORM OP NOTICE. In the District Court of the United States in and for the * District of , Division. John Doe, Plaintiff, NOTICE OF TAKING DEPOSITIONS. Richard Roe, Defendant. . To Henry Smith, Defendant [or plaintiff] or John Jones, Hie Attorney. Please take notice that on (Monday) the day of , 1918, at o'clock - - M. the deposition de bene esse of Charles Black, of the city of , county of , and state of , will be taken on behalf of the plain- tiff [or defendant] herein, before Frank Monroe, who is a commissioner of the district court of the United States for district of [or a notary public in and for the county of , state of , or other officer specified 378-379, Ch. 13 MANUAL OF FEDERAL PROCEDURE. 198 in section 863, Rev. Stats.] who is not of counsel or attorney to either of the parties, nor interested in the event of the cause, at his office, No. , in the city of , county of , state of . The said witness resides at , more than one hundred miles from the place where the trial of this action will occur [or is bound on a voyage to sea, or about to go out of the United States, or out of the district where the case is to be tried, and to a greater distance, than one hundred miles from the place of trial, or is ancient or infirm]. The examination of said witness will proceed from day to day until com- pleted and will be taken under sections 863, 864, 865, Revised Statutes of the United States. Dated, .. , Attorney for Plaintiff [or Defendant]. 378. Compelling Attendance of Witness Depositions De Bene Esse. Part 863, Rev. Stats. "Any person may be compelled to appear and depose as provided by this section, in the same manner as witnesses may be compelled to appear and testify in court." (3 Fed. Stats. Ann., 2d ed., p. 172; 3 U. S. Comp. Stats. 1916, 1472.) 379. Mode of Taking Depositions De Bene Esse. 864, Rev. Stats. "Every person deposing as provided in the preceding section shall be cautioned and sworn to testify the whole truth, and carefully examined. His testimony shall be reduced to writing or typewriting by the officer taking the deposition, or by some person under his personal supervision, or by the deponent himself in the officer's presence, and by no other person, and shall, after it has been reduced to writing or typewriting, be subscribed by the deponent. (3 Fed. Stats. Ann., 2d ed., p. 184; 3 U. S. Comp. Stats. 1916, 1473.) 199 DEPOSITIONS. Ch. 13, 379 FORM OF DEPOSITION. In the District Court of the United States in and for the District of , Division. John Doe, Plaintiff, DEPOSITION OF V. Richard Roe, Defendant. Taken on Behalf of Defendant [or Plaintiff]. State of , County of District of Division, of the city of , county of and state of , residing more than one hundred miles from the place where the trial of this action will occur [as being bound on a voyage to sea, or about to go out of the United States, or out of the district where the case is to be tried, and to a greater distance than one hundred miles from the place of trial, or being ancient or infirm] a witness called on behalf of the plaintiff [or defendant] herein, being duly cautioned and sworn to testify the whole truth, -and being carefully examined, deposes and says as follows: , Esquire, appeared as attorney for plaintiff and , Esquire, ap- peared as attorney for defendant. [The testimony on request of either party should be by question and answer otherwise in narrative form.] Q. 1. State your name and age. A. Q. 2. State your residence. FORM OF OFFICER'S CONCLUDING CERTIFICATE. In the District Court of the United States in and for the District of , Division. John Doe, Plaintiff, v. Richard Roe, Defendant. State of , County of District of Division, I hereby certify that on the day of , , before me, , a commissioner of the United States for the - district of - - [or other 380, Ch. 13 MANUAL OF FEDERAL PROCEDURE. 200 official designation], at my office, No. , in the city of , county of , state of , personally appeared, pursuant to the notice hereto annexed, between the hours of o'clock M. and o'clock M., , the witness named in said notice, and , Esquire, appearing for plaintiff, and ! , Esquire, appearing for defendant', and the said being by me first duly cautioned and sworn ,to testify the whole truth, and being carefully examined, deposed and said as in the foregoing annexed deposition set out. I further certify that said deposition was begun on the day of , , and continued from day to day until the .day of , , when same was completed. I further certify that the several exhibits attached to said deposition, were offered in evidence and marked for identification as is set out in said deposi- tion. I further certify that the said deposition was then and there reduced to writing [or typewriting] by me [or under my personal supervision^ or by the witness in my presence], and was, after it had been reduced to writing [or typewriting], subscribed by the witness, and the same has been retained by me for the purpose of sealing up and directing the same to the clerk of the court as required by law. I further certify that the reason why the said deposition was taken was that the said witness resides at , more than one hundred miles from the place where this cause is to be tried [or other reason, specified section 863, Revised Statutes]. I further certify that I am not of counsel or attorney to either of the par- ties, nor am I interested in the event of the cause. I further certify that the fee for taking said deposition, $ , has been paid to me by the plaintiff [or defendant], and the same is just and reason- able. Witness my hand and official seal at , this day of , . [Seil] , [Title.] 380. Equity Rule as to Form of Deposition. Equity Rule 49. "All evidence offered before an examiner or like officer, together with any objections, shall be saved and returned into the court. Depositions, whether upon oral ex- amination before an examiner or like officer or otherwise, shall be taken upon questions and answers reduced to writing, or in the form of narrative, and the witnesses shall be subject to cross and re-examination." (3 U. S. Comp. Stats. 1916, 1536, p. 2518; Foster's Federal Practice, 5th ed., p. 1132, 352; Simkins' Federal Equity Suit, 3d ed., pp. 501, 531, 533.) 201 DEPOSITIONS. Ch. 13, 381-384 381. Equity Rule as to Objections to Evidence. Part Equity Rule 51. "Objections to the evidence, before an examiner or like officer, shall be in short form, stating the grounds of objection relied upon, but no transcript filed by such officer shall include argument or debate. . . . Objection to any question or questions shall be rioted by the officer upon the depositions, 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 deposi- tions, or parts of them, as may be just." (3 U. S. Comp. Stats. 1916, 1536, p. 2518; Foster's Federal Practice, 5th ed., p. 1132, 352; Simkins' Federal Equity Suit, 3d ed., p. 526.) 382. Equity Rule as to Signing Deposition. Part Equity Rule 51. "... The testimony of each wit- ness, after being reduced to writing, shall be read over to or by him, and shall be signed by him in the presence 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 rec- ord the reasons, if any, assigned by the witness for such re- fusal. ..." (3 U. S. Comp. Stats. 1916, 1536, p. 2518; Foster's Federal Practice, 5th ed., p. 1132, 352; Simkins' Federal Equity Suit, 3d ed., pp. 502, 531, 533.) 383. Delivery into Court of Depositions De Bene Esse. Part 865, Rev. Stats. "Every deposition taken under the two preceding sections (863-4, R. S.) shall be retained by the magistrate taking it, until he delivers it with his own hand into the court for which it is taken ; or it shall, together with a certificate of the reasons as aforesaid of taking it and of the notice, if any, given to the adverse party, be by him sealed up and directed to such court, and remain under his seal until opened in court. . . . ' (3 Fed. Stats. Ann., 2d ed., p. 185; 3 U. S. Comp. Stats. 1916, 1474.) 384. Depositions Under a Commission. 866, Rev. Stats. "(Depositions under a dedimus potes- tatem and in perpetuam, etc.) In any case where it is neces- sary, in order to prevent a failure or delay of justice, any of 385-386, Ch. 13 MANUAL OF FEDERAL PROCEDURE. 202 the courts of the United States may grant a dedimus potes- tatem to take depositions according to common usage ; and any circuit court, upon application to it as a court of equity, may, according to the usages of chancery, direct depositions to be taken in perpetuam rei memoriam, if they relate to any mat- ters that may be cognizable in any court of the United States. And the provisions of sections eight hundred and sixty-three, eight hundred and sixty-four, and eight hundred and sixty- five, shall not apply to any deposition to be taken under the authority of this section." (3 Fed. Stats. Ann., 2d ed., p. 189 ; 3 U. S. Comp. Stats. 1916, 1477.) 385. Witnesses Exempt from Attendance Depositions Un- der a Commission. 870, Rev. Stats. "No witness shall be required, under the provisions of either of the two preceding sections ( 868, 869, R. S.), to attend at any place out of the county where he re- sides, nor more than forty miles from the place of his resi- dence, to give his deposition ; nor shall any witness be deemed guilty of contempt for disobeying any subpoena directed to him by virtue of the said sections, unless his fee for going to, returning from, and 'one day's attendance at the place of ex- amination, are paid or tendered to him at the time of the ser- vice of the subpoena." (3 Fed. Stats. Ann., 2d ed., p. 195; 3 IT. S. Comp. Stats. 1916, 1481.) 386. Compelling Attendance and Testimony of Witnesses for Depositions Under Commission. tats. 184; 4 Fed. Stats. Ann., 2d ed., p. 743; 2 U. S. Comp. Stats. 1916, 1451.) 416. Same Under Chinese Exclusion Laws. 2, Act March 3, 1901, c. 845. "A United States Commis- sioner shall be entitled to receive a fee of five dollars for hear- ing and deciding a case arising under the Chinese Exclusion laws." (31 Stats. 1093; 2 Fed. Stats. Ann., 2d ed., p. 108; 5 U. S. Comp. Stats. 1916, 4333.) 417. Costs and Witness Fees in Extradition Cases. 4, Act Aug. 3, 1882, c. 378. ' ' That all witness fees and costs of every nature in cases of extradition, including the fees of -the commissioner, shall be certified by the judge or commissioner before whom the hearing shall take place to the Secretary of State of the United" States, who is hereby authorized to allow the payment thereof out of the appropria- tion to defray the expenses of the judiciary; and the Secre- tary of State shall cause the amount of said fees and costs so allowed to be reimbursed to the Government of the United States by the foreign government by whom the proceedings for extradition may have been instituted." (22 Stats. 2K>; 3 Fed. Stats. Ann., 2d ed., p. 313 ; 10 U. S. Comp. Stats. 1916, 10,115.) 418, Ch. 14 MANUAL OF FEDERAL PROCEDURE. 224 418. Witnesses' Fees. 848, Rev. Stats. "For each day's attendance in court, or before any officer pursuant to law, one dollar and fifty cents, and five cents a mile for going from his place of resi- dence to the place of trial or hearing, and five cents a mile for returning. When a witness is subpoenaed in more than one cause between the same parties, at the same court, only one travel fee and one per diem compensation shall be al- lowed for attendance. Both shall be taxed in the case first disposed of, after which the per diem attendance fee alone shall be taxed in the other cases in the order in which they are disposed of. "When a witness is detained in prison for want of security for his appearance, he shall be entitled, in addition to his subsistence, to a compensation of one dollar a day." (Fed. Stats. Ann., 2d ed., title "Witnesses"; 2 U. S. Comp. Stats. 1916, 1452.) 1, Act May 27, 1908, c. 200. (Fees and mileage of jurors and witnesses in certain states and territories.) "Jurors and witnesses in the United States courts in the States of Wyoming, Montana, Washington, Oregon, California, Nevada, Idaho, Colorado and Utah, and in the territories of New Mexico and Arizona shall be entitled to receive for actual attendance at any court or courts and for the time necessarily occupied in going to and returning from the same, three dollars a day, and fifteen cents for each mile necessarily traveled over any stage line, or by private conveyance, and five cents for each mile by any railway or steamship in going to and returning from said courts: Provided that no constructive or double mileage fees shall be allowed by reason of any person being summoned as both a witness and juror, or as a witness in two or more cases pending in the same court and triable at the same term thereof. " (35 Stats. 377 ; 6 Fed. Stats. Ann., 2d ed., p. 239; 2 U. S. Comp. Stats. 1916, 1453, p. 2339.) Witness fees in extradition cases are set out, 417, supra. Witnesses before the Interstate Commerce Commission are en- titled to the same fees and mileage as are paid to witnesses in the federal courts. (Part 18, Act Feb. 4, 1887, c, 104; 24 Stats. 2 Jo COSTS AND FEES. Ch. 14, S 419-422 386; 4 Fed. Stats. Ann., 2d ed., p. 499; 8 U. S. Comp. Stats. 1916, 8587.) Other matters relating to witness fees are in the following sec- tions : 419. Court Officer not Entitled to Witness Fees. 849, Rev. Stats. ' ' No officer of the United States courts, in any state or territory, or in the District of Columbia, shall be entitled to witness fees for attending before any court or commission where he is officiating." (Fed. Stats. Ann., 2d ed., title "Witnesses"; 2 U. S. Comp. Stats. 1916, 1454.) iioV 420. Witness Fees Depositions in District of Columbia. 574, Rev. Stats. "Every witness appearing and testify- ing under the said provisions relating to the District of Columbia shall be entitled to receive for each day's attendance, from the party at whose instance he is summoned, the fees now provided by law for each day he shall give attendance." (3 Fed. Stats. Ann., 2d ed., p. 196; 3 U. S. Comp. Stats. 1916, 1485.) 421. Same Under Letters Kogutory from a Foreign Country. 4074, Rev. Stats. "Every witness who shall so appear and testify shall be allowed, and shall receive from the party at whose instance he shall have been summoned, the same fees and mileage as are allowed to witnesses in suits depending in the district courts of the United States." (3 Fed. Stats. Ann., 2d ed., p. 224; 7 U. S. Comp. Stats. 1916, 7622.) 422. Witness Fees of Seamen. 851, Rev. Stats. "There shall be paid to each seaman or other person who is sent to the United States from any foreign port, station, sea, or ocean, by any United States minister, charge d'affaires, consul, captain, or commander, to give tes- timony in any criminal case depending in any court of the United States, such compensation, exclusive of subsistence and transportation, as such court may adjudge to be proper, Manual 15 423-424, Ch. 14 MANUAL OF FEDERAL PROCEDURE. 226 not exceeding one- dollar for each day necessarily employed in such voyage, and in arriving at the place of examination or trial. In fixing such compensation, the court shall take into consideration the condition of said seaman or witness, and whether his voyage has been broken up, to his injury, by his being sent to the United States. When such seaman or person is transported in an armed vessel of the United States, no charge for subsistence or transportation shall be allowed. When he is transported in any other vessel, the compensation for his transportation and subsistence, not exceeding in any case fifty cents a day, may be fixed by the court, and shall be paid to the captain of said vessel accordingly." (Fed. Stats. Ann., 2d ed., title "Witnesses"; 2 U. S. Comp. Stats. 1916, 1456.) 1, Act July 1, 1916, c. 209. "That courts of the United States shall be open to seamen, without furnishing bonds or prepayment of or making deposit to secure fees or costs, for the purpose of entering and prosecuting suit or suits in their own name and for their own benefit for wages or salvage and to enforce laws made for their health and safety." (Pamph- let Supp., Fed. Stats. Ann., No. 8, p. 128; 3 U. S. Comp. Stats. 1916, 1630a, p. 3240.) 423. United States Liable for Only Four Witness Fees on Preliminary Criminal Examination. 981, Rev. Stats. "In no case shall the fees of more than four witnesses be taxed against the United States, in the exam- ination of any criminal case before a commissioner of a cir- cuit court, unless their materiality and importance are firs* approved and certified to by the district attorney for the dis- trict in which the examination is had ; and such taxation shall be subject to revision as in other cases." (2 Fed. Stats. Ann., 2d ed., p. 643 ; 3 U. S. Comp. Stats. 1916, 1622.) 424. Witness Fees in Prize Cases How Paid. 4651, Rev. Stats. "Whenever the court shall allow fees to any witness in a prize cause, or fees for taking evidence out of the district in which the court sits, and there is no money subject to its order in the cause, the same shall be paid by the 227 COSTS AND FEES. Ch. 14, 425-427 marshal, and shall be repaid to him from any money deposited to the order of the court in the cause ; and any amount not so repaid the marshal shall be allowed as witness fees paid by him in cases in which the United States is a party." (Fed. Stats. Ann., 2d ed., title "Prizes"; 7 U. S. Comp. Stats. 1916, 8425.) See, also, 426, infra, as to mode of payment of witness and juror fees. 425. Juror Fees Grand and Petit. 852, Rev. Stats. "For actual attendance at any court or courts, and for the time necessarily occupied in going to and returning from the same, three dollars a day during such at- tendance. For the distance necessarily traveled from their residence in going to and returning from said court by the shortest practicable route five cents a mile." (6 Fed. Stats. Ann., 2d ed., title "Juries"; 2 U. S. Comp. Stats. 1916, 1457.) 426. Mode of Payment Juror and Witness Fees. 855, Rev. Stats. ' ' In cases where the United States are parties, the marshal shall, on the order of the court, to be en- tered on its minutes, pay to the jurors and witnesses all fees to which they appear by such order to be entitled, which sum shall be allowed him at the Treasury in his accounts." (4 Fed. Stats. Ann., 2d ed., p. 709; 2 U. S. Comp. Stats. 1916, 1461.) 427. Printer's Fees. 853, Rev. Stats. "For publishing any notice or order re- quired by law, or the lawful order of any court, Department, Bureau, or other person, in any newspaper, except as men- tioned in sections 3823, 3824 and 3825, title 'Public Printing, Advertisements, and Public Documents,' forty cents per folio for the first insertion, and twenty cents per folio for each subsequent insertion. The compensation herein provided shall include the furnishing of lawful evidence, under oath, of pub- lication, to be made and furnished by the printer or publisher making such publication." (2 Fed. Stats. Ann., 2d ed., p. 635; 2 U. S. Comp. Stats. 1916, 1459.) 428-431, Ch. 14 MANUAL OP FEDERAL PROCEDURE. 228 428. Same Folio Defined. 854, Rev. Stats. "The term. 'folio' in this chapter shall mean one hundred words, counting each figure as a word. When there are over fifty and under one hundred words, they shall be counted as one folio; but a less number than fifty words shall not be counted, except when the whole statute, notice, or order contains less than fifty words." (2 Fed. Stats. Ann., 2d ed., p. 636; 2 U. S. Comp. Stats. 1916, 1460.) 429. Appraiser's Fees on Execution Sales. Last Part 993, Rev. Stats. " . . . When such appraisers attend they shall be entitled to the like fees as in cases of appraisement under the laws of the State." (3 Fed. Stats. Ann., 2d ed., p. 239; 3 U. S. Comp. Stats. 1916, 1639.) 430. No Costs Against United States in Internal Revenue Suits upon Information. 969, Rev. Stats. "When a suit for the recovery of any penalty or forfeiture accruing under any law providing in- ternal revenue is brought upon information received from any person other than a collector, deputy collector, or inspector of internal revenue, the United States shall not be subject to any costs of suit." (2 Fed. Stats. Ann., 2d ed., p. 638; 3 U. S. Comp. Stats. 1916, 1610.) 431. No Costs Against Prosecutor nor for Claimant When Reasonable Cause for Seizure. 970, Rev. Stats. "(Claimant not entitled to costs when reasonable cause of seizure.) When, in any prosecution com- menced on account of the seizure of any vessel, goods, wares, or merchandise, made by any collector or other officer, under any act of Congress authorizing such seizure, judgment is ren- dered for the claimant, but it appears to the court that there was reasonable cause of seizure, the court shall cause a proper certificate thereof to be entered, and the claimant shall not, in such case, be entitled to costs, nor shall the person who made the seizure, nor the prosecutor, be liable to suit or judgment on account of such suit or prosecution : Provided, That the vessel, 229 COSTS AND FEES. Ch. 14, 432-435 goods, wares, or merchandise be, after judgment, forthwith returned to such claimant or his agent." (2 Fed. Stats. Ann., 2d ed., p. 638; 3 U. S. Comp. Stats. 1916, 1611.) 432. Successful Claimant Entitled to Possession When His Own Costs Paid. 979, Rev. Stats. "When judgment is rendered in favor of the claimant of any vessel or other property seized on behalf of the United States, and libeled or informed against as for- feited under any law thereof, he shall be entitled to possession of the same when his own costs are paid." (2 Fed. Stats. Ann., 2d ed., p. 643; 3 U. S. Comp. Stats. 1916, 1620.) 433. Double Costs Against Nonsuited Plaintiff in Action Against Revenue Officer. 971, Rev. Stats. "If, in any suit against an officer or other person executing or aiding or assisting in the seizure of goods, under any act providing for or regulating the collection of duties on imports or tonnage, the plaintiff is nonsuited, or judg- ment passed against him, the defendant shall recover double costs." (2 Fed. Stats. Ann., 2d ed., p. 640; 3 U. S. Comp. Stats. 1916, 1612.) 434. Defendant Subjected to Fine, Forfeiture or Conviction shall Pay Costs of Prosecution. 974, Rev. Stats. " (When costs of prosecution to be paid by defendant.) When judgment is rendered against the de- fendant in a prosecution for any fine or forfeiture incurred under a statute of the United States, he shall be subject to the payment of costs; and" on every conviction for any other offense not capital, the court may, in its discretion, award that the defendant shall pay the costs of the prosecution." (2 Fed. Stats. Ann., 2d ed., p. 641; 3 U. S. Comp. Stats. 1916, 1615.) 435. Defendant to be Awarded Costs if Informer on Penal Statute Nonsuited or Discontinues. 975, Rev. Stats. "If any informer or plaintiff on a penal statute, to whom the penalty or any part thereof, if recovered. 436-438, Ch. 14 MANUAL OF FEDERAL PROCEDURE. is directed to accrue, discontinues his suit or prosecution or is nonsuited therein, or if, upon trial, judgment is rendered in favor of the defendant, the court shall award the defendant his costs, unless such informer or plaintiff is an officer of the United States specially authorized to commence such prosecu- tion, and the court, at the trial in open court, certifies upon the record that there was a reasonable cause for commencing the same; in which case no costs shall be adjudged to the de- fendant." (2 Fed. Stats. Ann., 2d ed., p. 642; 3 U. S. Comp. Stats. 1916, 1616.) 436. Informer on Penal Statute to Pay Costs if Nonsuit or Discontinuance. 976, Rev. Stats. "If any informer on a penal statute, to whom the penalty or any part thereof, if recovered, is directed to accrue, discontinues his suit or prosecution, or is nonsuited therein, or if upon trial judgment is rendered in favor of the defendant, such informer shall be alone liable to the clerk, marshal, and attorney for the fees of such prosecution, unless he is an officer of the United States whose duty it is to com- mence such prosecution, and the court certifies that there was reasonable cause for commencing the 'same; in which case the United States shall be responsible for such fees." (2 Fed. Stats. Ann., 2d ed., p. 642 ; 3 U. S. Comp. Stats. 1916, 1617.) 437. Costs in Copyright Suits. 972, Rev. Stats. "In all recoveries under the copyright laws, either for damages, forfeitures, or penalties, full costs shall be allowed thereon." (2 Fed. Stats. Ann., 2d ed., p. 640; 3 U. S. Comp. Stats. 1916, 1613.) 40, Act March 4, 1909, c. 320. ."That in all actions, suits, or proceedings under this act, except when brought by or against the United States or any officer thereof, full costs shall be allowed, and the court may award to the prevailing party a reasonable attorney's fee as part of the costs." (35 Stats. 1084 ; 2 Fed. State. Ann., 2d ed., p. 608 ; 9 U. S. Comp. Stats. 1916, 9562.) 438. Costs on Infringement of Patent. 973, Rev. Stats. "When judgment or decree is rendered for the plaintiff or complainant, in any suit at law or in equity. 231 COSTS AND FEES. Oh. 14, 438 for the infringement of a part of a patent r in which it appears that the patentee, in his specification, claimed to be the origi- nal and first inventor or discoverer of any material or substan- tial part of the thing patented, of which he-was not the' original and first inventor, no costs shall be recovered, unless the proper disclaimer, as provided by the patent laws, has been entered at the Patent Office before the suit was brought." (2 Fed. Stats. Ann., 2d ed., p. 640; 3 U. S. Comp. Stats. 1916, 1614.) 4922, Rev. Stats. "Whenever, through inadvertence, acci- dent, or mistake, and without any wilful default or intent to defraud or mislead the public, a patentee has, in his specifica- tion, claimed to be the original and first inventor or discoverer of any material or substantial part of the thing patented, of which he was not the original and first inventor or discoverer, every such patentee, his executors, administrators, and assigns, whether of the whole or any sectional interest in the patent, may maintain a suit at law or in equity, for the infringement of any part thereof, which was bona fide his own, if it is a material and substantial part of the thing patented, and defi- nitely distinguishable from the parts claimed without right, notwithstanding the specifications may embrace more than that of which the patentee was the first inventor or discoverer. But in every such case in which a judgment or decree shall be ren- dered for the plaintiff no costs shall be recovered unless the proper disclaimer has been entered at the Patent Office before the commencement of the suit. But no patentee shall be en- titled to the benefits of this section if he has unreasonably neg- lected or delayed to enter a disclaimer." (Fed. Stats. Ann., 2d ed., title "Patents"; 8 U. S. Comp. Stats. 1916, 9468.) 150, Ch. 15 MANUAL OF FEDERAL PROCEDURE. 232 CHAPTER 15. AN ACTION AT LAW SUMMARY. SEO. 450. In General. 451. Initial Pleading. 452. Attachment and Garnishment. 453. Process. 454. Defensive Pleading. 455. Amendment. 456. Continuances and Adjournments. 457. Consolidation. 458. Trial by Jury. 459. Trial by Judge. 460. Depositions, Evidence, Witnesses. 461. Charge to Jury and Verdict. 462. Judgment and New Trial. 463. Execution. 450. In General 914, Rev. Stats. "The practice, pleadings, and forms and modes of proceeding in civil causes, other than equity and ad- miralty causes, in the [circuit and] district courts, shall con- form, as near as may be, to the practice, pleadings, and forms and modes of proceeding existing at the time in like causes m the courts of record of the state within which such [circuit or] district courts are held, any rule of court to the contrary not withstanding." (6 Fed. Stats. Ann., 2d ed., p. 21; 3 U. S. Comp. Stats. 1916, 2912 et seq.) 918, Rev. Stats. "The several [circuit and] district courts may, from time to time, and in any manner not inconsistent with any law of the United States, or with any rule prescribed by the Supreme Court under the preceding section, make rules and orders directing the returning of writs and processes, the filing of pleadings, the taking of rules, the entering and mak- ing up of judgments by default, and other matters in vacation, and otherwise regulate their own practice as may be necessary or convenient for the advancement of justice and the preven- tion of delays in proceedings." (6 Fed. Stats. Ann., 2d ed., p. 77 ; 3 U. S. Comp. Stats. 1916, 1544, p. 3095 et seq.) 233 AN ACTION AT LAW SUMMARY. Ch. 15, 451-452 Under the foregoing provisions, an action at law conforms in many particulars to a similar action in the state courts of record of the state wherein the federal district is located. But there are a number of federal statutes that exist governing matters of pro- cedure which prevent a complete uniformity with the practice in the several states. There are other matters concerning which the federal judges, in the exercise of their discretion, have refused to follow the state rules or laws. The object of this chapter is to summarize the conduct of an ac- tion at law with reference to conformity with state laws. 451. Initial Pleading. (Chapter 16, post.} The initial plead- ing conforms as to form and sufficiency except that it is necessary to show (1) ground of federal jurisdiction, (2) ground of legal jurisdiction, that the causes of action are legal as distinguished from equitable, and legal and equitable causes are not permitted to be joined in the same petition, (3) the requisite amount in contro- versy, and (4) that venue is properly laid. (See 470. 474, infra.) As to parties under subdivision first, 24, Jud. Code, assignees may not sue except when the assignor or assignors could have sued in the federal court. (See 97, infra.) Joinder of parties is governed by 50, Jud. Code. Survival of right of action in the executor or administrator is governed by 55, Jud. Code. In other respects rules of state courts as to parties will govern as in case of suits by assignees, assigning causes of ac- tion for torts, executors and administrators, misjoinder of plain- tiffs or defendants and right of action for death. 452. Attachment and Garnishment. (Chapter 17, post.) The remedies of attachment and garnishment are given in conform- ity to state laws under 915, Rev. Stats., except as against national banks under 5242, Rev. Stats. (See 480, infra.) It is presumed that the federal courts have adopted the state laws on this subject, and they follow the state courts' construction of state attachment statutes. (See 482, infra.) 453, Cll. 15 MANUAL OP FEDERAL PROCEDURE. 234 But attachment cannot be made a basis of jurisdiction so as to authorize service by publication. The federal courts do not follow state practice in jurisdictional matters. (See 483, infra.) The state statutes are followed as to causes of action in which attachments will issue, the property subject to attachment, the grounds for attachment to be stated in the affidavit, the bonds given to obtain or release, the form of writ, the effect of lien, priorities, third-party claims, and under 933, Rev. Stats., the dissolution of the attachment. (See 494, infra.) But state laws are not followed as to amendments of the affidavit or the writ, amendments being governed by 948, Rev. Stats., for amending process. (See 487, infra.) In like manner, state laws are followed in garnishment proceed- ings under 915, Rev. Stats., relating to attachments and 916, Rev. Stats., relating to executions, but not as to amendments under 948, Rev. Stats., relating to amendment process and 954, Rev. Stats., relating to amendments generally. There are special provisions as to attachments in postal suits and garnishments in suits by the government against corporations. 453. Process. (Chapter 18, post.) The time when suit begins follows state law; so also the state statute of limitations. ( 521, infra.) The form and body of process follows the state practice, but the signature, seal and test are governed by 911, 912, Rev. Stats., and amendment of, by 948, 954, Rev. Stats., and the sufficiency of process and service are governed by federal decisions. ( 522- 523, infra.) The marshal or his deputy serve the process as required by 787, 788, Rev. Stats. But the method of personal service follows state practice, although substituted service is governed by 57, Jud. Code. The federal decisions govern special appearance. ( 524-526. infra.) 262, Jud. Code, allows other writs not provided by statute, 235 AN ACTION AT LAW SUMMARY. Cll. 15, 454 15 454. Defensive Pleading. (Chapter 19, post.) The time and order of pleading follow state practice. Defaults may conform to state law under 918, Rev. Stats. ( 542, infra.) So do also the sufficiency and scope of the pleading. Pleas in abatement, de- murrers, answers, setoffs, or counterclaims and replications, when provided by state practice, will be used in like cases in the fed- eral courts. State rules as to verification are followed. ( 541, 543, 544, infra.) Under 274b, Jud. Code, added by amendment Act March, 3, 1915, chapter 90, equitable defenses are now permitted in an action at law. ( 545, post.) 455. Amendment. Amendment of pleading is .covered by 954, Rev. Stats. ( 546, infra.) Amendment of process by the same section and also 948, Rev. Stats. ( 523, infra.) 456. Continuances and Adjournments. (Chapter 20, post.) Continuances conform to state practice except as modified by 955 and 956, Rev. Stats., on the death of a party ; 957, Rev. Stats., in suits against a delinquent for public money; 958, Rev. Stats., in postal suits; 959, Rev. Stats., suits on debentures; and 9GO, Rev. Stats., suits under tariff laws. ( 561-566, infra.) There are also provisions for adjournments when the judge is unable to act, 12, Jud. Code, or his office becomes vacant, under 22, Jud. Code, and for concluding in a new term trials already commenced, under 8, Jud. Code. 457. Consolidation. Consolidation of suits under 921, Rev. Stats., conforms to state practice. 920, Rev. Stats., provides for consolidation for revenue seizure case. ( 570, infra.) 458. Trial by Jury. (Chapter 22, post) The right of trial by jury is guaranteed by the seventh Amendment of the United States Constitution, and is provided for by 566, Rev. Stats. 459-460, Ch. 15 MANUAL OF FEDERAL PROCEDURE. 236 Chapter "12, Jud. Code, as to juries, sets out the provisions gov- erning the qualifications and exemptions of jurors, the matters of impaneling, venire, talesmen, special jury, challenges, etc. The conduct of a jury trial, being a matter of personal administration of the judge, does not conform to state laws. Thus, there is not a conformity with respect to the scintilla of evidence rule, nor with respect to withdrawing case from the jury or permitting the jury to separate or submitting special issues or waiving jury. 459. Trial by Judge. ( 594, post.) By 291, Jud. Code, the powers and duties of circuit courts are imposed upon district courts, and hence under 649 and 700, Rev. Stats., the district judge would have authority to try questions of fact on waiver of jury. The admission and exclusion of evidence can only be con- sidered when excepted to at the time and duly presented by bill of exceptions under 700, Rev. Stats. The findings of fact by the judge are equivalent to verdict by the jury under 649, 700, 1011, Rev. Stats. 460. Depositions (chapter 13, supra). Evidence (chapter 11, supra), Witnesses (chapter 12, supra). The causes for tak- ing depositions are set out in 863 and 866, Rev. Stats., and the methods of taking same are provided for in 863 to 870, Rev. Stats., inclusive, but may be in the same manner though not for the same cause as provided in the state practice, under Act March 9, 1892, chapter 14. There are many statutory provisions relating to special matters of evidence, permitting copies of documents of departments, the record and exemplification of books kept by public officers of a state or territory, copies of foreign records, evidence of acts of state legislatures, and records of judicial proceedings. This subject is treated in chapter 11. Tlie competence of witnesses conforms under 858, Rev. Stats. State laws are followed as to credibility. The examination and cross-examination of witnesses conform to state practice under 237 AN ACTION AT LAW SUMMARY. Ch. 15, 461-462 861, Rev. Stats., but not as to the examination of a party before trial. See 724, Rev. Stats., 571, post. Subpoenas for witnesses are authorized under 876 and 877^ Rev. Stats., and in contested patent cases under 4906, Rev. Stats., and their attendance is enforced under 268, Jud. Code; so, also, the answers of witnesses may be enforced under 268, Jud. Code, and in contested patent cases under 4908, Rev. Stats. The pro- duction of books is provided for in 724, Rev. Stats., and subpoena duces tecum under 724 and 869, Rev. Stats. The materiality of evidence and the effect of withdrawing erroneously admitted evi- dence are governed by federal decisions. The subject of witnesses is , treated in detail, chapter 12, supra. 461. Charge to Jury and Verdict. The charge to the jury is also a matter of personal administration of the judge, and is governed by the federal decisions. Thus state laws forbidding comments on evidence are not followed. Section 918, Rev. Stats., governs the giving of special charges. Exceptions to charges are governed by Circuit Courts of Appeal Rule 10 (Appendix, post) and Supreme Court Rule 4 (Appendix, post). ( 615, post.) The form and effect of a verdict conform to state practice, but the di- recting of a verdict is governed by the federal decisions. ( 611, infra.) 462. Judgment and New Trial (chapter 24, post). Judg- ments in law actions may conform by general rule to state laws under 914, Rev. Stats., as to allowance of interest by $ 966, Rev. Stats. ( 623, post), recording, docketing, and indexing under the Act of August 1, 1888, chapter 729 ( 625, 626, 627, post). The manner, effect, and extent of the lien or judgments conform under the last-mentioned act, and when they cease to be liens under 967, Rev. Stats. ( 627, post), and the lien is preserved on change of boundaries by 60, Jud. Code (628, post). Judgments by de- fault are authorized by 918, Rev. Stats. (542, post). Amend- ment of judgments is governed by 954, Rev. Stats. ( 629, post), 463, Ch. 15 MANUAL, OP FEDERAL PROCEDURE. 238 and vacation of judgments is governed by Federal decisions ( 630, post). New trials are governed by 269, Jud. Code ( 613, post). 463. Execution (621, post). Executions on judgments in law actions may conform by general rule to state statutes under 916, Rev. Stats. ( 631, post), but do not run against revenue officers for moneys paid on probable cause into the treasury, under 989, Rev. Stats. ( 632, post). Stay of execution pending motion for new trial is governed by 987, Rev. Stats. ( 633, post), and there is partial conformity to state law under 988, Rev. Stats. ( 634, post), allowing a stay for one term. Executions run to any part of the state under 985, Rev. Stats. ( 635, post), and on judgments in favor of the United States to any part of the United States, under 986, Rev. Stats. (635, post). Place of sale of real and personal property is governed by 1 and 2, Act March 3, 1893, chapter 225 ( 640, post). Publication of notice of sale of real estate by 3 ( 641, post) of the same act and proceedings are not interrupted by vacancy in the marshal's office, under 994, Rev. Stats. (642, post). The gov- ernment may be a purchaser in its own suits under 3470, Rev. State. (643, post). Appraisal of personal property sold on execution may conform to state laws under 993, Rev. Stats. ( 644, post). State laws may be followed regarding abolishment of imprison- ment for debt under 990, Rev. Stats. ( 636, post), and for the discharge of a person from arrest or imprisonment in civil cases under 991, Rev. Stats. ( 637, post). In government cases a poor debtor may be discharged from imprisonment by the Secretary of the Treasury under 3471, Rev. Stats. ( 638, post), or by the President under 3472, Rev. Stats. ( 639, post). 239 TEE INITIAL PLEADING LAW ACTIONS. Oh. 16, 470 CHAPTER 16. THE INITIAL PLEADING LAW ACTIONS. BEO. 470. Differences Between Federal and State Initial Pleadings. 471. Effect of Failure to Show Jurisdiction^ Grounds. 472. Effect of Erroneously Beginning as a Suit in Equity. 473. Legal and Equitable Causes of Action may not be Joined. 474. Form of Initial Pleading. 470. Differences Between Federal and State Initial Plead- ings. Under 914, Rev. Stats., the initial pleading in actions at law as distinguished from suits in equity conforms "as near as may be" to the pleadings and forms existing at the time in like causes in the courts of record of the state witliin which the federal courts are held. Because, however, of the limited jurisdiction of the federal courts and the distinction that exists in such courts between law and equity cases in respect to practice, pleading, forms and mode of proceed- ing, it is necessary for the initial pleading in an action at law in the federal court to disclose, in addition to those matters required to make a good pleading in the state court of record of the state within which the federal court is held: (1) Some ground of fed- eral jurisdiction, (2) the proper amount in controversy, (3) facts showing that the cause of action is legal in its nature as dis- tinguished from equitable, (4) proper venue under federal laws. In other respects the initial pleading, a petition, declaration, or complaint, in an action at law in the federal court, is governed by the state statutes and rules in like causes in the courts of record of the state in which the federal court is located. 1 There should i Beers v. Haughton. 9 Pet. (U. S.) 359, 9 L. Ed. 155; Ex parte Boyd, 105 U. S. 647, 26 L. Ed. 1200; Indianapolis etc. B. Co. v. Horst, 93 U. S. 300, 23 L. Ed. 901; United States Bank v. Halstcad, 10 Wheat. (U. S.) 51, 6 L. Ed. 264; Parsons v. Bedford, 3 Pet. (U. S.) 44&, 7 L. Ed. 737; Matter of Freeman, 2 Curt. 491, Fed. Gas. No. 5083; United States v. Knight, 3 Sumn. 358, Fed. Cas. No. 15,539. 471-472, Ch. 16 MANUAL OF FEDERAL PROCEDURE. 240 also be consulted the federal district court rules of the district in which the action is brought as to the details of methods of doing business of these courts under the authority of 918, Rev. Stats., giving power to regulate by rules their own practice. 2 471. Effect of Failure to Show Jurisdictional Grounds. 57, Jud. Code. "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 substan- tially involve a dispute or controversy properly within 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 chapter, the said district court shall proceed no- further therein, but shall dismiss the suit or remand it to the court from which it was removed, as justice may require and shall make such order as to costs as shall be just." (5 Fed. Stats. Ann., 2d ed., p. 398; 1 U. S. Comp. Stats. 1916, 1019, p. 1033; Foster's Federal Practice, 5th ed., p. 1169.) 472. Effect of Erroneously Beginning as a Suit in Equity. Equity Rule 22. "If at any time it appear that a suit com- menced 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 proceeded with, with only such alter- ation in the pleadings as shall be essential." (3 U. S. Comp. Stats. 1916, 1536, p. 2502; Foster's Federal Practice, 5th ed., pp. 336, 725, 1184; Simkins' Federal Equity Suit, 3d ed., pp. 27, 28, 29, 302, 552.) 274a, Jud. Code, added by Act March 3, 1915, c. 90. "That in case any of said courts shall find that a suit at law should have been brought in equity or a suit in equity should have been brought at law, the court shall order any amend- ment to the pleadings which may be necessary to conform them 2 Ewing v. Burnham, 74 -p e( j 384; 'Mutual Bldg. Fund etc. Savings Bank v. Bossieux, 1 Hughes, 386, Fed. Cas. No. 9977. 241 THE INITIAL PLEADING LAW ACTIONS. Ch. 16, 473-474 to the proper practice. Any party to the suit shall have the right, at any stage of the cause, to amend his pleadings so as to obviate the objection that his suit was not brought on the right side of the court. The cause shall proceed and be de- termined upon such amended pleadings. All testimony taken before such amendment, if preserved, shall stand as testimony in the cause with like effect as if the pleadings had been origi- nally in the amended form." (38 Stat. 956; 5 Fed. Stats. Ann., 2d ed., p. 1059; 2 U. S. Comp. Stats. 1916, 125 la, p. 2023 ; 226 Fed. 653 ; 227 Fed. 199 ; 228 Fed. 577 ; 231 Fed. 654; 233 Fed. 309; 237 Fed. 61.) 473. Legal and Equitable Causes of Action may not be Joined. The fact that a state statute abolishes the forms of ac- tion has no effect on the forms of pleading in equity suits in the federal courts in that state, nor does such statute in fact change or destroy the essential distinctions that exist between law and equity cases, to wit: (1) in their manner of trial, at law by a jury, in equity by the judge; (2) in the nature of the remedies granted, in law, compensatory or possessory, which if adequate and complete will preclude the granting of equitable remedies, such as injunction, specific performance, and the like ; and, (3) in the manner of enforcement of the court's orders, in all cases applicable by the writ of execution and such other process as the state statute may give, but in equity under Equity Rule 8, by acting in personam by means of contempt proceedings wherever it is necessary to so enforce the orders and secure the relief sought. 474. Form of Initial Pleading. The following is given merely by way of suggestion and illustration, and will vary ac- cording to the state practice where the federal court is situated. There should be the usual caption followed by a statement of the citizenship and residence of the parties; the ground or grounds of federal jurisdiction, amount in controversy, and a statement of a cause of action, legal in its nature, to wit: requiring a possessory Manual 16 474, Ch. 16 MANUAL OF FEDERAL PROCEDURE. 242 or compensatory remedy without equitable incidents. The prayer for relief should be signed by counsel and verified as required by the state practice. The form below will illustrate: In the District Court of the United States Within and for the District of , Division. John Jones, Plaintiff, v. COMPLAINT AT LAW. MONEY (OR POSSESSION). Hen.ry Smith, Defendant. John Jones, for his cause of action, alleges: I. That he is a citizen of the state of , residing at in said state, and the defendant is a citizen of the state of , residing at , county of , in said state. II. [Here set out the ground of federal jurisdiction and, if material, the amount or value involved.] III. [A statement of facts showing that the claim is legal, in other words, a statement of a cause of action for which the remedies or compensation or possession will be complete and adequate, and not requiring the interposition of equity.] IV. [The prayer for relief.] V. [Signature and verification as prescribed by state practice of the state where the federal court is located.] It is well to set out the citizenship and residence of the parties, whether the case depends on diverse citizenship or not, as that will give uniformity of pleading in all suits and, except in local actions, will also show whether the venue has been properly laid. 3 The only remedies that may be sought in a federal suit at law are possessory or compensatory, and the initial pleading in a suit at law can seek these remedies, and no others. 3 Whithead v. Shattuck, 138 U. S. 146 34 L. Ed. 873, 11 Sup. Ct. 276-; South Penn Oil Co. v. Miller, 175 Fed. 729, 735, 99 C. C. A. 305. See, also, Beatty v. Wilson, 161 Fed. 453. ATTACHMENT AND GARNISHMENT. Ch. 17 CHAPTER 17. ATTACHMENT AND GARNISHMENT IN LAW CASES. BEO. 480. Attachment and Garnishment Adoption of State Laws Except Against National Banks. 481. Rules by Federal Courts Adopting State Attachment Remedies. 482. Construction of State Attachment Statutes by State Courts Followed in Federal Courts. 483. Attachment not a Basis for Substituted Service, but Merely a Provi- sional Remedy. 484. Causes of Action in Which Attachments are Authorized Governed by State Law. 485. Property Subject to Attachment State Laws Govern. 486. Affidavit for Attachment Should Conform to State Law. 487. Amendment of Affidavit for Attachment. 488. Bond for Attachment. 489. The Writ of Attachment Amendment, 948, Rev. Statg. 490. Lien of Attachment. 491. Priorities Several Attachments. 492. Delivery Bond. 493. Third-party Claims Follow State Laws. 494. Dissolution of Attachments "Under 933, Rev. Stats. Conforms to State Laws. 495. Attachments in Postal Suits. 496. Same Application for Warrant Under 925, Rev. Stats. 497. Same Issuing Warrant Duties of Clerk and Marshal Under 926, Rev. Stats. 498. Same Ownership of Property Trial Under 927, Rev. Stats. 499. Same Proceeds of Sale Investment Under 928, Rev. Stats. 500. Same Publication of Warrant Under 929, Rev. Stats. 501. Same Garnishees of Delinquents in Postal Suits Under 930, Rev. Stats. 502. Same Discharge of Warrant on Giving Bond Under 031, Rev. Stats. 503. Same Adoption of State Attachment Laws and Former Practice not Affected by Postal Attachment Laws. 504. Garnishment General Statement. 505. Effect of Garnishment. 506. Notice of Garnishment. 507. Persons and Property Subject to Garnishment. 508. Issue by Garnishee. 509. Judgments Against Garnishee. 480, Ch. 17 MANUAL OF FEDERAL PROCEDURE. 244 SEC. 510. Garnishees in Suits by the Government Against Corporations. 511. Same Issue Tendered When Garnishee Denies Indebtedness. 512. Srfme Garnishee in Contempt on Failing to Appear. 513. Claim to Property in Alien Property Custodian Limitation of Attach- ment of. 480. Attachment and Garnishment Adoption of State Laws Except Against National Banks. 915, Rev. Stats. "In common-law causes in the [circuit and] district courts the plaintiff shall be entitled to similar remedies, by attachment or other process, against the prop- erty of the defendant, which are now provided by the laws of the state in which such court is held for the courts thereof ; and such circuit or district courts may, from time to time, by general rules, adopt such state laws as may be in force in the states where they are held in relation to attachments and other process: Provided, That similar preliminary affidavits or proofs, and similar security, as required by such state laws, shall be first furnished by the party seeking such attachment or other remedy." (6 Fed. Stats. Ann., 2d ed., p. 64; 3 U. S. Comp. State. 1916, 1539, p. 3069.) Not Against National Banks. Part, 5242, Rev. Stats. "... no attachment . . . shall be issued against such association or its property before final judgment in any suit, action, or proceeding, in any state, county, or municipal court." (6 Fed. Stats. Ann., 2d ed., p. 903; 9 U. S. Comp. Stats. 1916, 9834.) Under 5242, Rev. Stats., above quoted, the power to issue attachments against national banks being eliminated from state statutes, there would be no right to same in the federal courts under 915, Rev. Stats., allowing adoption of state laws. 1 Property transferred to the alien property custodian is not liable to attachment except as provided in Act Oct. 6, 1917. (See 513, post.) i Pacific Nat. Bank v. Mixter, 124 U. S. 721, 31 L. Ed. 570, 8 Sup. Ct. 718. 245 ATTACHMENT AND GARNISHMENT. Ch. 17, 431-483 481. Rules by Federal Courts Adopting State Attachment Remedies. The rules adopting state laws for attachment pro- ceedings need not be in writing. 2 It is presumed that the federal courts have adopted the state statutes. 3 The federal courts have a large discretion in these matters. 4 482. Construction of State Attachment Statutes by State Courts Followed in Federal Courts. The scope, meaning and application of the state attachment law and practice under it as construed by the state courts will be followed in the federal courts. 5 483. Attachment not a Basis for Substituted Service, but Merely a Provisional Remedy. Attachments in the federal courts cannot be made the basis for service on an absent defendant by publication because of the requirements of 51 of the Jud. Code as to the venue of actions requiring the suit to be brought in the district of a defendant's residence, except as in the succeed- ing sections provided. 57, Jud. Code, allows service by pub- lication on absent defendants in suits to enforce liens or remove clouds from title. "The attachment proceeding, therefore, in the courts of the United States, has altogether a different character from that proceeding in rem in common use in the states, the object of which is either to enforce the appearance of the absent defendant or to subject his property to the payment of his debts. In the fed- eral courts there must be jurisdiction over the person of the defendant and of a subject matter, independent of the proceed- 2 Citizens' Bank v. Farwell, 56 Fed. 570, 6 C. C. A. 24; Logan v. Goodwin, 104 Fed. 490, 43 C. C. A. 658; United States v. Stevenson, 1 Abb. 495, Fed. Gas. No. 16,395. 3 Logan v. Goodwin, 104 Fed. 490, 43 C. C. A. 658; Lowry v. Story, 31 Fed. 771; Fullerton v. United States Bank, 1 Pet, (U. S.) 604, 7 L. Ed.' 280. 4 Shcpard v. Adams, 168 U. S. 62-5, 42 L. Ed. (W2, 18 Sup. Ct. 214. ' Third Nat. Bank of Baltimore v. Teal, 5 Fed. 503, 4 Hughes, 572; Fleitas v. Cockrem, 101 U. S. 301, 25 K Ed. 954. 483, Ch. 17 MANUAL OF FEDERAL PROCEDURE. 246 ing in attachment, and without which no attachment can be effectual." 6 "It is conceded that the person against whom this suit was brought in the circuit court (of the United States for the dis- trict of Iowa) was an inhabitant of the state of Massachusetts, and was not found in or served with process in Iowa. Clearly, then, he was not suable in the circuit court of the district of Iowa, and unless he could be sued no attachment could issue for that court against his property." 7 In Bucyrus v. McArthur (M. D. Tenn.), 219 Fed. 266, at pages 268, 269, the court said : "It is well settled that the federal courts, under the provi- sions of the laws of the United States governing the issuance of process are not authorized to issue foreign attachments as the original process commencing suits against defendants not amenable to personal service of process. Toland v. Sprague, 12 Pet. (U. S.) 300, 329, 9 L. Ed. 1093; Saddler v. Hudson, 2 Curt. 6, 21 Fed. Gas. 135 , No. 12,206 ; Dormitzer v. Illinois etc. Bridge Co. (C. C.), 6 Fed. 217, 218. And see Courtney v. Pradt (6th Cir.), 160 Fed. 561, 562, 87 C. C. A. 463, citing Chicago etc. R. Co. v. Sturn, 174 U. S. 710, 715, 43 L. Ed. 1144, 19 Sup. Ct. 797. And section 915 of the Revised Statutes (de- rived from the act of June 1, 1872, c. 255, 6, 17 Stats. 187), adopting in common-law causes in the federal courts the laws of the several states in relation to attachments and other process against the property of defendants, merely authorizes the issuance of ancillary attachments for the purpose of im- pounding the property of defendants of whose person the court may otherwise acquire jurisdiction. Chittenden v. Darden, 2 Woods, 437, 5 Fed. Cas. 642, No. 2688 ; Nazro v.' Cra'gin, 3 Dill. 474, 17 Fed. Cas. 1259, 1260, No. 10,062; North v. Mc- Donald, 1 Biss. 57, 18 Fed. Cas. 332, 333, No. 10,312; Anderson v. Shaffer (C. C.), 10 Fed. 266, 267; Boston Elec. Co. v. Electric Gas-Lighting Co. (C. C.), 23 Fed. 838, 839; and, by implication, Ex parte Des Moines etc. R. R. Co., 103 U. S. 794, 796, 26 L. Ed. Erstein v. Rothschild, 22 Fed. 61. See, also, Lovejoy r. Hartford F. Ins. Co., 11 Fed. 63; Lackett v. Rumbaugh, 45 Fed. 23, 29. 7 Ex parte Des Moines etc. R. R. Co., 103 U. S. 794. 26 L. Ed. 461. See, also, Toland v. Sprague, 12 Pet. (U. S.) 300, 9 L. Ed. 1093, 247 ATTACHMENT AND GARNISHMENT. Ch. 17, 483 461, and Tread well v. Seymour (C. C.), 41 Fed. 579, 581. The contrary opinion in Guillou v. Fontain, 32 Leg. Int. 362, 11 Fed. Gas. 108, No. 5861, is contrary to the great weight of authority, and does not, in my opinion, rightly interpret the provisions of the statute. Such ancillary attachment, when otherwise authorized, may, however, it seems, be issued in con- nection with the personal process when the defendant is amen- able thereto. Toland v. Sprague, supra, 12 Pet at page 329, 9 L. Ed. 1093; North v. McDonald, supra, 18 Fed. Gas., at page 333. "Such ancillary attachment of the defendant's property is, however, a purely statutory remedy, in derogation of the com- mon law. 1 Shinn on Attachment, 8 (g), p. 10; 4 Cyc. 396, and cases cited in note 3; 3 Am. & Eng. Ency. Law (2d ed.), 184. It is entirely unknown to the immemorial practice and usage of courts of equity, either in England or in the United States, and is essentially a legal remedy, which, in the absence of statutory authority, is not available in equity. Drake on Attachments (3d ed.), 4, a, p. 4; Shinn on Attachments, supra, 7, p. 9; 1 Bouv. Law Diet. (15th ed.), 202; 3 Am. & Eng. Ency. Law (2d ed.), 184, 193; Lackland v. Garesche, 56 Mo. 267, 270; McPherson v. Snowden, 19 Md. 197; People's Bank v. Shryock, 48 Md. 427, 30 Am. Rep. 476, 478. And see Courtney v. Pradt (6th Cir.), supra, 160 Fed., at page 562, 87 C. C. A. 463; Shiel v. Patrick (2d Cir.), 59 Fed. 992, 993, 8 C. C. A. 440; Black's Law Diet. (2d ed.), 101. "There is, however, no statutory authority for the issuance of such an attachment in an equity cause in a federal court. Section 915 of the Revised Statutes, adopting in the federal courts the laws of the several states in relation to attachments against the property of defendants, is specifically limited to 'common-law causes'; and section 914 of the Revised Statutes, providing that the practice and procedure in federal courts shall conform to those of the state courts, specifically excludes 'equity causes.' Neither has the supreme court of the United States, in promulgating the rules of equity practice in the dis- trict courts, under the authority vested in it by section 917 of the Revised Statutes, provided for such ancillary writs of attachment. Nor is provision made therefor by any rule of this court; although it may well be that this could be
  • iu- in accordance with the 79th Rule of Equity Practice (198 484-487, Ch. 17 MANUAL OF FEDERAL PROCEDURE. 248 Fed. xli, 115 C. C. A. xli), and under the various statutory provisions cited in Steam Stone-Cutter Co. v. Sears (C. C.), 9 Fed. 8, 20 Blatchf. 23, and Steam Stone-Cutter Co. v. Jones (C. C.), 13 Fed. 567, 21 Blatchf. 138." 484. Causes of Action in Which Attachments are Authorized Governed by State Law. There are some variations in the sev- eral states as to the kind of action in which an attachment will be permitted. The federal courts follow the state laws on this subject. 8 485. Property Subject to Attachment State Laws Govern. The state laws govern as to the property subject to attachment, 9 but in the federal courts property of an equitable nature 10 and property in custodia legis cannot be attached, 11 except as several levies are allowed. 486. Affidavit for Attachment Should Conform to State Law. The state requirements as to grounds to be stated in the affidavit for attachment by whom to be made, etc., govern such affidavits in the federal courts. 12 487. Amendment of Affidavit for Attachment. 545, Rev. Stats. "Any [circuit or] district court may at any time, in its discretion, and upon such terms as it may deem just, allow an amendment of any process returnable to or before it, where the defect has not prejudiced, and the amendment will not injure, the party against whom such 8 Seeley v. Missouri, K. & T. E. Co., 39 Fed. 253; Eothschild v. Knight, 184 U. S. 334, 46 L. Ed. 573, 22 Sup. Ct. 391. 9 Thompson v. Baker, 141 U. S. 648, 35 L. Ed. 889, 12 Sup. Ct. 89; Cbulson v. Panhandle Nat. Bank, 54 Fed. 855, 858, 4 C, C. A. 616; Bigelow v. Chatter- ton, 51 Fed. 614, 2 C. C. A. 402; Richmond v. Brookings, 48 Fed. 241; Mont- gomery v. MeDermott, 103 Fed. 801, 43 C. C. A. 348; Simonds v. Pearce, 31 Fed. 137; Hankinsop v. Page, 31 Fed. 185, 24 Blatchf. 422. 10 Shiel'v. Patrick, 59 Fed. 992, 8 C. C. A. 440. 11 Corbitt v. Farmers' Bank. 114 Fed. 602; Henry v. Gold Park Min. Co., 15 Fed. 649, 5 McCrary, 70; Clarke v. Shaw, 28 Fed. 356. 12 Johnson v. Johnson, 31 Fed. 700; Societe Fonciere v. Milliken, 135 U. S. 304, 34 L. Ed. 208, 10 Sup. Ct. 823; Glidden v. Whittier, 46 Fed. 437; Bigelow v. Chatterton, 51 Fed. 614, 2 C. C. A. 402. 249 ATTACHMENT AND GARNISHMENT. Ch. 17, 488-489_ process issues." (6 Fed. Stats. Ann., 2d ed., title "Judi- ciary"; 3 U. S. Comp. Stats. 1916, 1580.) This section applies to a defective affidavit for attachment. 13 So, also, with respect to defective affidavit for garnishment though amendment not allowed by state law. 14 Where state law authorizes amendment under certain condi- tions, these rights will be given in federal courts. 15 488. Bond for Attachment. "The plaintiff seeking an at- tachment in the federal court against the property of the de- fendant is required to furnish security in the same manner as to amount and the qualification and residence of the sureties that he would have to furnish if he were proceeding in the state court." 16 The construction of the bond is governed by state laws. 17 Amendment of the bond is allowed. 18 Action on bond may be maintained in federal court. 19 489. The Writ of Attachment Amendment, 948, Rev. Stats. (487 above). The form and issuance of the writ should con- form to state practice. 20 Increasing amount will not dissolve attachment. 21 The power to amend in attachment suits is the same as in other cases. 22 The court seal may be added under 948, Rev. Stats. 23 13 Erstein v. Kothschild, 22 Fed. 61. 14 Booth v. Denike, 65 Fed. 43. is Salmon v. Mills, 49 Fed. 333, 1 C. C. A. 278; Fleischner v. Pacific Postal Teleg. Cable Co., 55 Fed. 739; Rothschild v. Knight, 184 U. S. 334, 46 L. Ed. 573, 22 Sup. Ct. 391; Fitzpatrick v. Flannagan, 106 U. S. 648, 27 L. Ed. 211, 1 Sup. Ct. 369. is Singer Mfg. Co. v. Mason, 5 Dill. 488, Fed. Cas. No. 12,903. See, also, Fleitas v. Cock'rem, 101 U. S. 301, 25 L. Ed. 954; Blue Grass Canning Co. v. Steward, 175 Fed. 537, 541, 99 C. C. A. 159. n Fidelity & D. Co. v. L. Bucki & Son Lumber Co., 189 U. S. 135, 47 L. Ed. 744, 23 Sup. Ct. 582. 18 Bumberger v. Gerson, 24 Fed. 257. i Files v. Davis, 118 Fed. 465. 20 Russia Cement Co. v. Le Page Co., 174 Mass. 349, 55 N. E. 70. 21 Cutler v. Lang. 30 Fed. 173. 22 Tilton v. Cofield, 93 U. S. 1G7, 23 L. Ed. 860. 23 Wolf v. Cook, 40 Fed. 4"2. 490-491, Ch. 17 MANUAL OF FEDERAL PROCEDURE. 250 490. Lien of Attachment. The lien created by the levy is governed by state laws. 24 Personal property is taken into the custody of the marshal. 25 By 60, Jud. Code, quoted, 70, supra, and in the Appendix, post, it is provided that the lien of an attachment or seizure, etc., shall not be divested by a change of boundaries, but a certified copy filed in the court of the division or district where the property was located after the change would have the effect of an original. 491. Priorities Several Attachments. The federal and state courts are of co-ordinate authority in administering the state attachment laws. The court under whose authority the first levy is made is entitled to the actual custody and possession of the property. 26 The federal courts are entitled, however, to make a constructive levy on property in the possession of a state officer when the state law authorizes successive levies and a method of settling priorities. 27 Likewise the state authorities may constructively levy on prop- erty in the possession of the marshal, and intervene in proceed- ings in the federal courts in the same district. 28 The rights of other creditors will be preserved in the federal courts even if their claims are less than the jurisdictional amount required to sustain a suit, in such courts, 29 and without reference to the citizenship of the parties. 30 24 Hankinson v. Page, 31 Fed. 184, 24 Blatchf. 422. 25 Adler v. Roth, 5 Fed. 895, 2 McCrary, 445; Coulson v. Panhandle Nat. Bank, 54 Fed. 855-858, 4 C. C. A. 616. See Dudley v. Lamoille Co. Nat. Bank, 14 Fed. 217; Richmond v. Brookings, 48 Fed. 241; People's Sav. Bank & T. Co. v. Batchelder Eg? Case Co., 51 Fed. 131-137, 2 C. C. A. 126; Hankin- son v. Page, 31 Fed. 184, 24 Blatchf. 422. 26 Adler v. Roth, 5 Fed. 895, 2 McCrary, 445; Bates v. Days, 17 Fed. 167, 5 McCrary, 342. 27 Brooks v. Fry, 45 Fed. 776. 28 Gumbel v. Pitkin, 124 U. S. 131, 31 L. Ed. 374, 8 Sup. Ct. 379; Bates v. Days. 17 Fed. 167, 5 McCrary, 342. 2J> Krippendorf v. Hyde, 110 U. S. 284, 28 L. Ed. 145, 4 Sup. Ct. 27; Rice v. Adler-Goldman Co., 71 Fed. 151, 18 C. C. A. 15. 30 Gumbel v. Pitkin, 124 U. S. 132, 31 L. Ed. 374, 8 Sup. Ct. 379; Fountain v. 624 Pieces of Timber, 140 Fed. 381; Hatcher v. Hendrie & B. Mfg. 6 Supply Co., 133 Fed. 267, 68 C. C. A. 19; Central Trust Co. v. Worcester Cycle Mfg. Co., 128 Fed. 483. 251 ATTACHMENT AND GARNISHMENT. Ch. 17, 492-404 On removal the federal courts will distribute the fund or pro- ceeds of attached property under the state laws. 31 492. Delivery Bond. The provision of a state law, or the redelivery of attached property to the defendant upon his fur- nishing a delivery bond, is recognized and followed in the federal courts. 32 Likewise a provision of state law not permitting a de- livery bond to release attached money will be recognized in the federal courts. 33 493. Third-party Claims Follow State Laws. The provi- sion of a state law permitting a third party to claim attached property by affidavit of ownership and furnishing bond will be followed in the federal courts. 34 The raising of the issue of ownership has also been permitted by motion to vacate the attach- ment. 35 494. Dissolution of Attachments Under 933, Rev. Stats. Conforms to State Laws. 933 Rev. Stats. "An attachment of property, upon process instituted in any court of the United States, to satisfy such judgment as may be recovered by the plaintiff therein, ex- cept in the cases mentioned in the preceding nine* sections (in postal suits), shall be dissolved when any contingency occurs by which, according to the laws of the state where said court is held, such attachment would be dissolved upon like process instituted in the courts of said state: Provided, That nothing herein contained shall interfere with any priority of the United States in the payment of debts." (1 Fed. Stats. Ann., 2d ed., pp. 485, 486; 3 U. S. Comp. Stats. 1916, 1559, p. 3110.) 81 Bankers & M. Tel. Co. v. Chicago Carpet Co., 28 Fed. 398. 32 Kbncr v. Held, 125 Fed. 680, 60 C. C. A. 370. 83 United States v. Neely. 154 Fed. 496. 34 Harden v. Starr, 107 Fed. 199; Batavia v. Wallace, 102 Fed. 240, 42 C. 0. A. 310; Tennent-Stribling Shoe Co. v. Roper, 128 Fed. 40, 62 C. C. A. 548. 35 United States v. Neeley, 146 Fed. 763. 495, Ch. 17 MANUAL OP FEDERAL PROCEDURE. 252 Under the provision above quoted, the State law was followed requiring a general appearance before entertaining a motion to dissolve the attachment. (Feurer v. Stewart, 82 Fed. 294.) So, also, a law which provided that the defendants do not waive right to move to discharge of attachment by mere execution of a bond by them for the release of the attached property. (Gliddeu v. Whittier, 46 Fed. 437.) But as in other matters of appellate procedure, State laws give way to federal statutes. Thus the time within which writs of error may be sued out to review an order discharging the attach- ment, the federal law controls. (Logan v. Goodwin, 101 Fed. 654, 41 C. C. A. 573.) As to effect of state insolvency proceedings as a dissolution of attachment: Mayer v. Cahalin, 5 Sawy. 355, Fed. Gas. No. 9340; Mather v. Nesbit, 13 Fed. 872, 4 McCrary, 505 ; Neufeld v. Neufeld, 37 Fed. 560, 13 Sawy. 604; Schwartz v. H. B. Claflin Co., 60 Fed. 676, 9 C. C. A. 204 ; Tua v. Carriere, 117 U. S. 201, 29 L. Ed. 855, 6 Sup. Ct. 565. Effect of pleading insolvency by defendants in an attachment; time of pleading insolvency : Muser v. Kern, 55 Fed. 916. 495. Attachments in Postal Suits. 924, Rev. Stats. "In all cases where debts are due froni' defaulting or delinquent postmasters, contractors, or other officers, agents, or employees of the Postoffice Department, a warrant of attachment may issue against all real and personal property and legal and equitable rights belonging to such officer, agent, or employee, and his sureties, or either of them, in the following cases: "First. When such officer, agent, or employee, and his sureties, or either of them, is a nonresident of the district where such officer, agent, or employee was appointed, or has departed from such district for the purpose of permanently residing out of the same, or of defrauding the United States, or of avoiding the service of civil process. "Second. When such officer, agent, or employee, and his sureties, or either of them, has conveyed away, or is about 253 ATTACHMENT AND GARNISHMENT. Ch. 17, 496-497 to convey away his property, or any part thereof, or has removed or is about to remove the same or any part thereof from the district wherein it is situate, with intent to defraud the United States. "And when any such property has been removed, certified copies of the warrant may be sent to the marshal of the dis- trict into which the same has been removed, under which certified copies he may seize said property and convey it to some convenient point within the jurisdiction of the court from which the warrant originally issued. And alias war- rants may be issued in such cases upon due application, and the validity of the warrant first issued shall continue upon due application, and the validity of the warrant first issued shall continue until the return day thereof." (1 Fed. Stats. Ann., 2d ed., p. 483; 3 U. S. Comp. Stats. 1916, 1550.) 496. Same Application for Warrant Under 925, Rev. Stats. 555, Rev. Stats. "Application for such warrant of at- tachment may be made by any district or assistant district attorney, or any other person authorized by the Postmaster General, before the judge, or, in his absence, before the clerk of any court of the United States having original jurisdiction of the cause of action. And such application shall be made upon an affidavit of the applicant, or of some other credible person, stating the existence of either of the grounds of at- tachment enumerated in the preceding section, and upon pro- duction of legal evidence of the debt." (1 Fed. Stats. Ann., 2d ed., p. 484; 3 U. S. Comp. Stats. 1916, 1551.) 497. Same Issuing Warrant Duties of Clerk and Marshal Under 926, Rev. Stats. 926, Rev. Stats. "Upon any such application and upon due order of any judge of the court, or, in his absence, with- out such order, the clerk shall issue a warrant for the attach- ment of all the property of any kind belonging to the person specified in the affidavit, which warrant shall be executed with all possible dispatch by the marshal, who shall take the prop- erty attached, if personal, into his custody, and hold the same 498-500, Ch. 17 MANUAL OF FEDERAL PROCEDURE. 254 subject to all interlocutory or final orders of the court." (1 Fed. Stats. Ann., 2d ed., p. 484 ; 3 U. S. Comp. Stats. 1916, 1552.) 498. Same Ownership of Property Trial Under 927, Rev. Stats. 927, Rev. Stats. "At any time within twenty days before the return day of such warrant, the party whose property is attached may, on giving notice to the district attorney of his intention, file a plea in abatement, traversing the allega- tions of the affidavit, or denying the ownership of the prop- erty attached to be in the defendants or either of them; in which case the court may, upon application of either party, order an immediate trial by jury of the issues raised by the affidavit and plea; but the parties may, by consent, waive a trial by jury, in which case the court shall decide the issues raised. And any party claiming ownership of the property attached and a specific return thereof shall be confined to the remedy herein afforded, but his right to an action of trespass, or other action for damages, shall not be impaired hereby." (1 Fed. Stats. Ann., 2d ed., p. 484; 3 U. S. Comp. Stats. 1916, 1553.) 499. Same Proceeds of Sale Investment Under 928, Rev. Stats. 928, Rev. Stats. "When the property attached is sold on any interlocutory order of the court or is producing any revenue, the money arising from such sale or revenue shall be invested in securities of the U.nited States, under the order of the court, and all accretions shall be held subject to the orders of the same." (1 Fed. Stats. Ann., 2d ed., p. 485; 3 U. S. Comp. Stats. 1916, 1554.) 500. Same Publication of Warrant Under 929, Rev. Stats. 929, Rev. Stats. "Immediately upon the execution of any such warrant of attachment, the marshal shall cause due pub- lication thereof to be made, in the case of absconding debtors for two months and of nonresidents for four months. The publication shall be made in some newspaper published in 255 ATTACHMENT AND GARNISHMENT. Ch. 17, 501-503 the district where the property is situate, and the details thereof shall be regulated by the order under which the war- rant is issued." (1 Fed. Stats. Ann., 2d ed., p. 485; 3 U. S. Comp. Stats. 1916, 1555.) 501. Same Garnishees of Delinquents in Postal Suits Under 930, Rev. Stats. 930, Rev. Stats. "After the first publication of such notice of attachment as required by law, every person indebted to, or having possession of any property belonging to, the said defendants, or either of them, and having knowledge of such notice, shall account and answer for the amount of such debt and the value of such property ; and any disposal or attempt to dispose of any such property, to the injury of the United States, shall be illegal and void. And when the person in- debted to, or having possession of the property of, such de- fendants, or either of them, is known to the district attorney or marshal, such officer shall see that personal notice of the attachment is served upon such person, but the want of such notice shall not invalidate the attachment." (1 Fed. Stats. .Ann., 2d ed., p. 485; 3 U. S. Comp. Stats. 1916, 1556.) 502. Same Discharge of Warrant on Giving Bond Under 931, Rev. Stats. 931, Rev. Stats. "Upon application of the party whose property has been attached, the court, or any judge thereof, may discharge the warrant of attachment as to the property of the applicant, provided such applicant shall execute to the United States a good and sufficient penal bond, in double the value of the property attached, to be approved by a judge of the court, and with condition for the return of said prop- erty, or to answer any judgment which may be rendered by the court in the premises." (1 Fed. Stats. Ann., 2d ed., p. 485; 3 U. S. Comp. Stats. 1916, 1557.) 503. Same Adoption of State Attachment Laws and Former Practice not Affected by Postal Attachment Laws. .955, Rev. Stats. "Nothing contained in the preceding eight sections shall be construed to limit or abridge, in any manner, such rights of the United States as have accrued or 504-507, Ch. 17 MANUAL OF FEDERAL PROCEDURE. , been allowed in any district under the former practice of, or the adoption of state laws by, the United States courts." (1 Fed. Stats. Ann., 2d ed., p. 485; 3 U. S. Comp. Stats. 1916, 1558.) 504. Garnishment General Statement. Under 915, Rev. Stats., quoted in 480 supra, garnishment proceedings and the rights and liabilities thereunder as prescribed by state laws may be adopted by the federal courts. 36 Thus the effect of garnishment ( 505 below) ; a notice of gar- nishment ( 506 below) ; the persons and property subject to gar- nishment ( 507 below) ; the raising of the issue by the garnishee ( 508 below) ; and the judgment against the garnishee ( 509 below) ; all conform to the state practice. 505. Effect of Garnishment. A garnishee may not be placed in any worse condition than he would if defendant were prose- cuting the claim against him, but otherwise he takes the place of the judgment debtor in relation to the attaching creditor. 37 506. Notice of Garnishment. The state law governs the sufficiency of the notice served on the garnishee. 3 * 507. Persons and Property Subject to Garnishment. The person^ who may be garnished and the kinds of property for which they must answer are governed by state laws. 39 A debtor under a judgment in a federal court cannot be sub- jected to garnishment in the state court, as that would cause a conflict of jurisdictions greatly inconvenient. 40 Debt not due may be garnished. 41 36 Randolph v. Tandy, 98 Fed. 939, 39 C. C. A. 351; Wile v. Cohn, 63 Fed. 759. 37 Fidelity Trust Co. v. New York Finance Co., 125 Fed. 275, 60 C. C. A. 189; Allen v. Aetna Life Ins. Co., 145 Fed. 881, 7 L. R. A. (N. S.) 958, 76 C. C. A. 265. 38 Logan v. Goodwin, 104 Fed. 490, 43 C. C. A. 658; Wile v. Cohn, 63 Fed. 759. 39 Moscow Hardware Co. v. Colson, 158 Fed. 199; Johnson v. Union Pac. R. Co., 145 Fed. 249. 40 Henry v. Gold Park Min. Co., 15 Fed. 649, 5 McCrary, 70. 41 Smith v. Marker, 154 Fed. 838. 85 C. C. A. 372. 257 ATTACHMENT AND GARNISHMENT. Ch. 17, 508-510 508. Issue by Garnishee. The practice as to raising issues by a garuishee conforms to state practice except as to appeal from judgments against him. 42 509. Judgments Against Gamishee. The entry of judg- ment against the garnishee is governed by state laws, and on ad- mission of indebtedness or proof that he is not indebted, the state law giving reasonable attorneys' fees, 43 and also costs, 44 is en- forced. Where the state law authorizes the garnishee to deliver up property to the officer, and be relieved without judgment, the law will be followed. 45 Also, where the state law requires a suit, instead of a garnishment process, against the attached debtor, that law will be followed. 49 510. Garnishees in Suits by the Government Against Cor- porations. 935, Rev. Stats. "In any suit by the United States against a corporation for the recovery of money upon a bill, note, or other security, the debtors of the corporation may be sum- moned as garnishees; and it shall be the duty of any person so summoned to appear in open court and to depose, in writ- ing, to the amount which he was indebted to the said corpora- tion at the time of the service of the summons and at the time of making such deposition; and judgment may be entered in favor of the United States for the sum admitted by such gar- nishee to be due to the said corporation, in the same manner as if it had been due to the United States : Provided, That no judgment shall be entered against any garnishee until after judgment has been rendered against the corporation defend- ant to the said action, nor until the sum in which the garnishee stands indebted is actually due." (3 Fed. Stats. Ann., 2d ed., p. 417; 3 U. S. Comp. Stats. 1916, 1561.) 42 Schuler v. Israel, 120 U. S. 506, 30 L. Ed. 707, 7 Sup. Ct. 648. 43 New York Finance Co. v. Potter, 126 Fed. 432. 44 Eome R. Co. v. Richmond etc. Co., 60 Fed. 43. 45 Allen-West Commission Co. v. Grumbles, 129 Fed. 288, 63 C. C. A. 401; Hatcher v. Hendrie etc. Supply Co., 133 Fed. 267, 68 C. C. A. 19. 46 Brandenstein v. Helvetia Swiss Fire Ins. Co., 159 Fed. 589; also Hel- vetia Swiss Fire Ins. Co. v. Brandenstein, 168 Fed. 1020, 92 C. C. A. 614. Manual 17 511-513, Ch. 17 MANUAL OF FEDERAL PROCEDURE. 258 511. Same Issue Tendered When Garnishee Denies Indebt- edness. 936, Rev. Stats. '"When any person summoned as gar- nishee deposes in open court that he is not, and was not at the time of the service of the summons, indebted to such cor- poration, an issue may be tendered by the United States upon such demand, and if, upon the trial of that issue, a verdict is rendered against the garnishee, judgment shall be entered in favor of the United States, pursuant to such verdict, with costs of suit." (3 Fed. Stats. Ann., 2d ed., p. 417; 3 U. S. Comp. Stats. 1916, 1562.) 512. Same Garnishee in Contempt on Failing to Appear. 937, Rev. Stats. "If any person summoned as garnishee, as aforesaid, fails to appear at the term of the court to which he is summoned, he shall be subject to attachment for contempt of the court." (3 Fed. Stats. Ann., 2d ed., p. 417; 3 U. S. Comp. Stats. 1916, 1563.) 513. Claim to Property in Alien Property Custodian Limi- tation of Attachment of. 9, Act Oct. 6, 1917, c. . "That any person, not an enemy, or ally of enemy, claiming any interest, right, or title in any money or other property which may have been conveyed, transferred, assigned, delivered, or paid to the alien property custodian hereunder, and held by him or by the Treasurer of the United States, or to whom any debt may be owing from an enemy, or ally of enemy, whose property or any part thereof shall have been conveyed, transferred, as- oigned, delivered, or paid to the alien property custodian here- nnder, and held by him or by the Treasurer of the United States, may file with the said custodian a notice of his claim under oath and in such form and containing such particulars as the said custodian shall require; and the President, if ap- plication is made therefor by the claimant, may, with the assent of the owner of said property and of all persons claim- ing any right, title, or interest therein, order the payment, conveyance, transfer, assignment or delivery to said claimant of the money or other property so held by the alien property 259 ATTACHMENT AND GARNISHMENT. Ch. 17, 513 custodian or by the Treasurer of the United States or of the interest therein to which the President shall determine said claimant is entitled : Provided, That no such order by the Presi- dent shall bar any person from the prosecution of any suit at law or in equity against the claimant to establish any right, title or interest which he may have in such money or other property. If the President shall not so order within sixty days after the filing of such application, or if the claimant shall have filed the notice as above required and shall have made no application to- the President, said claimant may, at any time before the expiration of six months after the end of the war, institute a suit in equity in the district court of the United States for the district in which such claimant resides, or, if a corporation, where it has its principal place of business (to which suit the alien property custodian or the Treasurer of the United States, as the case may be, shall be made a party de- fendant), to establish the interest, right, title, or debt so claimed, and if suit shall be so instituted then the money or other property of the enemy, or ally of enemy, against whom such interest, right, or title is asserted, or debt claimed, shall be retained in the custody of the alien property custodian, or in the Treasury of the United States, as provided in this Act, and until any final judgment or decree which shall be entered in favor of the claimant shall be fully satisfied by payment or conveyance, transfer, assignment, or delivery by the defendant or by the alien property custodian or Treasurer of the United States on order of the court, or until final judgment or de- cree shall be entered against the claimant, or suit otherwise terminated. "Except as herein provided, the money or other property conveyed, transferred, assigned, delivered or paid to the alien property custodian shall not be liable to lien, attachment, gar- nishment, trustee, process, or execution, or subject to any order or decree of any court. ' ' This section shall not apply, however, to money paid to the alien property custodian under section ten hereof." (Pam- phlet Supp., Fed. Stats. Ann., No. 12, p. 131; U. S. Comp. Stats. 1916, 31151/46; 244 Fed., Adv. Sheets No. 4, p. 450. 520-521, Ch. 18 MANUAL. OF FEDERAL PROCEDURE. 260 CHAPTER 18. PROCESS L.AW ACTIONS. SEO. 520. IH General. 521. When Suit is Begun. 522. The Forms of Process for the Commencement of Suits, Except as to Signature, Tcste and Sealing, Conform to State Practice. 523. Amendment of Process. 524. By Whom Process is Served. 525. Method of Service of Process. 526. Service by Publication Under 57, Jud. Code. 527. Special Appearance. 528. Suit in Forma Pauperis. 520. In General. Under 721, Eev. Stats, (infra, 230), the federal courts, in following the laws of the several states, adopt the state statutes of limitations except where otherwise prescribed by federal statutes, and in like manner follow the state law as to what is the beginning of a suit. The form and body of process follow the state practice under the conformity act 914, Rev. Stats, (infra, 450), but the signatures, seal and teste are covered by 911, 912, Rev. Stats, (infra, 522), and amendment of process by 948, 954, Rev. Stats, (infra, 523) . The sufficiency of process, because relating to jurisdiction, does not conform to state law, but is governed by federal decisions (infra, 525), so also with respect to special appearances (infra, 527). By whom process is served is provided in 787, 788, Rev. Stats. (infra, 524). The method of service, except substituted service which is governed by 57, Jud. Code (infra, 526) follows the state practice (infra, 525). A suit in forma pauperis is author- ized under 3, Act July 20, 1892, chapter 209 (infra, 528). 521. When Suit is Begun. Under 721, Rev. Stats, (infra, 23Q) relating to the adoption of state rules of decision, the fed- eral courts follow the state laws of limitation. (Chapter 10, infra, 261 PROCESS LAW ACTIONS. Ch. 18, 522 Statutes of Limitations.) So, also, a state ruling that the filing of a petition in a court of the proper jurisdiction is the beginning of the suit has been followed by the federal court. 1 There should be, however, the issuance of process and a bona fide effort to serve same. 2 522. The Forms of Process for the Commencement of Suits, Except as to Signature, Teste and Sealing, Conform to State Prac- tice. 3 Indorsements upon the copy of summons in actions for penalties brought by the United States thus conform. 4 If the fed- eral courts have adopted by rule of court a form of process con- forming to the state law, a subsequent change of the state law would have to be adopted to render improper a writ under the old form. 5 911, Rev. Stats. "All writs and processes issuing from the courts of the United States shall be under the seal of the court from which they issue, and shall be signed by the clerk thereof. Those issuing from the Supreme Court or a circuit court shall bear teste of the Chief Justice of the United States, or, when that office is vacant, of the associate justice next in precedence, and those issuing from a district court shall bear teste of the judge, or, when that office is vacant, of the clerk thereof. The seals of said courts shall be provided at the ex- pense of the United States. " (6 Fed. Stats. Ann., 2d ed., p. 16 ; 3 U. S. Comp. Stats. 1916, 1534.) 912, Rev. Stats. "All process issued from the courts of the United States shall bear teste from the day of such issue." (6 Fed. Stats. Ann., 2d ed., p. 912; 3 U. S. Comp. Stats. 1916, 1535.) 1 International Bank & Trust Co. v. Scott 159 Fed. 60, 86 C. C. A. 248; Goldenberg v. Murphy, 108 U. S. 162, 27 L. Ed. 686, 2 Sup. Ct. 388; Re Conna- way, 178, U. S. 430, 44 L. Ed. 1137, 20 Sup. Ct. 951; Deepwater R. Co. v. Western Pocahontas Coal & Lumber Co., 152 Fed. 824. 2 United States v. American Lumber Co., 80 Fed. 309, 315; Michigan Ins. Bank v. Eldred, 130 U. S. 697, 32 L. Ed. 1082, 9 Sup. Ct. 690. 3 Gillum v. Stewart, 112 Fed. 30, 32; Middleton Paper Co. v. Rock River Paper Co., 19 Fed. 252; Brown v. Pond, 5 Fed. 31; Peaslee v. Haberstro, 15 Blatchf. 472, Fed. Gas. No. 10,884. 4 United States v. Rose, 14 Fed. 681; Miller v. Gages, 4 McLean, 436, Fed. Cas. No. 9571. 5 SBepard v. Adams, 168 U. S. 624, 42 L. Ed. 604, 18 Sup. Ct 214; Elson v. Waterford, 135 Fed. 247. 523, Ch. 18 MANUAL OF FEDERAL PROCEDURE. 262 A garnishment notice does not come under the requirements of 911 and 912, Rev. Stats., but is governed by 915, Eev. Stats., and if it conforms under the later section to the state court proce- dure it will be held valid. 6 523. Amendment of Process. 948, Rev. Stats. ' ' Any circuit or district court may at any time, in its discretion, and upon such terms as it may deem just, allow an amendment of any process returnable to or be- fore it, where the defect has not prejudiced, and the amerid- ment will not injure, the party against whom such process issues." (6 Fed. Stats. Ann., 2d ed., p. 90; 3 U. S. Comp. Stats. 1916, 1580.) 954, Rev. Stats. "No summons, writ, declaration, return, process, judgment, or other proceedings in civil causes, in any court of the Umted States, shall be abated, arrested, quashed, or reversed for any defect or want of form; but such court shall proceed and give judgment according as the right of the cause and matter in law shall appear to it, without regarding any such defect, or want of form, except those which, in cases of demurrer, the party demurring specially sets down, together with his demurrer, as the cause thereof; and such court shall amend every such defect and want of form, other than those which the party demurring so expresses; and may at any time permit either of the parties to amend any defect in the process or pleadings, upon such conditions as it shall, in its discretion and by its rules, prescribe." (6 Fed. Stats. Ann., 2d ed. p. 98; 3 U. S. Comp. Stats. 1916, 1591.) Illustrations of amendments under the foregoing statutes are as follows: a district court summons bearing teste of chief justice; 7 striking out of a summons and declaration "administrator, etc.," and inserting "executor, etc." ; 8 altering date of writs made return- able on Sunday or another wrong day; 9 changing date of sum- 6 Wile v. Cohn, 63 Fed. 759; Middleton Paper Co. y. Rock River Paper Co., 19 Fed. 252. 7 United States v. Turner, 50 Fed. 734. 8 Randolph v. Barrett. 16 Pet. (U. S.) 13-8, 10 L. Ed. 914. s> Norton v. City of Dover, 14 Fed. 106; Hampton v. Rouse, 15 Wall. (U. S.) 684, 21 L. Ed. 250; Semmes T. United States, 91 U. S. 21, 23 L. Ed. 193. 263 PROCESS LAW ACTIONS. Ch. 18, 524 mcfns ; 10 changing name of plaintiff in summons to conform to complaint. 11 Not every defect, however, will be allowed to be amended. A summons not signed nor under seal of court is not amendable, 12 nor a defective indorsement of substantive matter. 13 The power of amendment conferred by these statutes cannot be diminished, but may be enlarged by state practice if the federal courts adopt the state rule. 14 524. By Whom Process is Served. 787, Rev. Stats. "It shall be the duty of the marshal of each district to attend the district [and circuit] courts when sitting therein, and to execute, throughout the district, all law- ful precepts directed to him, and issued under the authority of the United States ; and he shall have power to command all necessary assistance in the execution of his duty." (4 Fed. Stats. Ann., 2d ed., p. 764; 2 U. S. Comp. Stats. 1916, 1311.) 788, Rev. Stats. "The marshals and their deputies shall have, in each state, the same powers, in executing the laws of the United States, as the sheriffs and their deputies in such state may have, by law, in executing the laws thereof." (4 Fed. Stats. Ann., 2d ed., p. 768 ; 2 U. S. Comp. Stats. 1916, 1312.) The marshal is the executive officer of the court, and no other person is authorized to serve process directed to him except him- self or his deputy. 15 Where a state law permits original process to be served by a private person, that law cannot be followed in the federal court, but it must be served by the marshal or his deputy. 16 Independently of state laws, the marshals of the United States have power to deputize persons for the service of writs. 17 10 Gilbert v. South Carolina etc. Exp. Co., 113 Fed. 523. 11 Gulf etc. R. Co. v. James, 48 Fed. 148, 1 C. C. A. 53. 12 Dwight v. Merritt, 4 Fed. 614, 18 Blatchf. 305. is Brown v. Pond,. 5 Fed. 31. l* Norton v. City of Dover, 14 Fed. 106. 15 Schwabacker v. Reilly, 2 Dill. 127, 21 Fed. Cas. No. 12,501. 16 Ibid., and see Shepard v. Adams, 168 U. S. 624, 42 L. Ed. 604, 18 Sup. Ct. 214. " The Tug E. W. Gorgas, 10 Ben. 460, 8 Fed. Cas. No. 4585. 525-526, Ch. 18 MANUAL OF FEDERAL PROCEDURE. 264 525. Method of Service of Process. The federal statutes -do not designate how service shall be made in suits at law, and ac- cordingly the method of service conforms to state practice under 914, Rv. Stats. ( 450, above), except substituted service under 57, Jud. Code ( 526, below). 18 "The laws of the state providing for the service of process of state courts in actions at law furnish the rules for procedure in such case in this (federal) court, so that whatever would be law- ful service of process to bring a party into court if the action were in a court of competent jurisdiction under the state government is lawful and sufficient for the purpose of actions commenced in this court." 19 Substituted service is governed by 57, Jud. Code, as set out in the succeeding section. The sufficiency of service to give jurisdic- tion, as in all other jurisdictional matters, does not conform to state laws, but the federal courts determine for themselves. 20 Service on corporations conforms as a general rule to state laws. 21 On foreign corporations state laws will generally be followed if the corporation is doing business in the state of the forum. 22 526. Service by Publication Under 57, Jud. Code. Service by publication does not come within the above rule. State statutes regulating the manner of bringing in absent defendants by publi- cation are not applicable to the federal courts. The mode provided by 57, Jud. Code, for acquiring jurisdiction over an absent de- fendant by publication is exclusive of every other mode, 23 and must be strictly followed. 24 The action must be in rem for the statute 18 Toledo Computing S. Co. v. Computing Scale Co., 142 Fed. 919, 74 C. C. A. 89; Amy v. Watertown, 130 U. S. 302, 32 L. Ed. 947, 9 Sup. Ct. 530, Swarta v. Christie Grain and Stock Co., 166 Fed. 338. 19 Van Dresser v. Oregon E. & Nav. Co., 48 Fed. 202. 20 Michigan Trust Co. v. Ferry, 175 Fed. 667, 99 C. C. A. 221; Clark v. Wells, 203 U. S. 164, 51 L. Ed. 138, 27 Sup. Ct. 43. 21 Higham v. Iowa State Travelers Assn., 183 Fed. 845. 22 McCord Lumber Co. v. Doyle, 97 Fed. 22, 38 C. C.-A. 34. 23 Bracken v. Union Pac. R. Co., 56 Fed. 447, 5 C. C. A. 548; New York Life Ins. Co. v. Bangs, 103 U. S. 435, 26 L. Ed, 580. 24 Jennings v. Johnson, 148 Fed. 337, 78 C. C. A. 329; King v. Davis, 137 Fed. 198, 207. 265 PROCESS LAW ACTIONS. Ch. 18, 526 to apply. 25 Attachment cannot be made a basis for substituted ser- vice in the federal courts ( 483, infra}. 57, Jud. Code (Re-enacting 8, Act March 3, 1875, c. 137}. "When in any suit commenced in any district court of the United States to enforce any legal or equitable lien or cloud upon or claim to, or to remove any encumbrance or lien upon the title to real or personal property within the district where such suit is brought, one or more of the defendants therein shall not be an inhabitant of or found within the said district, or shall not voluntarily appear thereto, it shall be lawful for the court to make an order directing such absent defendant or de- fendants to appear, plead, answer, or demur by a day certain to be designated, which order shall be served on such absent de- fendant or defendants, if practicable, wherever found, and also upon the person or persons in possession or charge of said property, if any there be ; or where such personal service upon such absent defendant or defendants is not practicable, such order shall be published in such 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 fur- ther time, to be allowed by the court, in its discretion, and upon proof of the service or publication of said order and of the performance of the directions contained in the same, it shall be lawful for the court to entertain jurisdiction, and pro- ceed to the hearing and adjudication of such suit in the same manner as if such absent defendant had been served with process within the said district ; but said adjudication shall, as regards said absent defendant or defendants without appear- ance, affect only the property which shall have been the sub- ject of the suit and under the jurisdiction of the court therein, within such district ; and when a part of the said real or per- sonal property against which such proceedings shall be taken shall be within another district, but within the same state, such suit may be brought in either district in said state : Provided, Jwivever, That any defendant or defendants not actually per- sonally notified as above provided may, at any time within one year after final judgment in any suit mentioned in this section, enter his appearance in said suit in said district court, and 25 Jonos v. Gould, 141 Fed. 698; and, also, Jones v. Gould, 149 Fed. 153, 80 C. C. A. 1. 527-528, Ch. 18 MANUAL, OF FEDERAL PROCEDURE. 266 thereupon the said court shall make an order setting aside the judgment therein and permitting said defendant or defendants to plead therein on payment by him or them of such costs as the court shall deem just; and thereupon said suit shall be pro- ceeded with to final judgment according to law." (36 Stats. 1102 ; 5 Fed. Stats. Ann., 2d ed., p. 525 ; 1 U. S. Comp. Stats. 1916, 1039; Foster's Federal Practice, 5th ed., pp. 185, 599; Simkins' Federal Equity Suit, 3d ed., pp. 48, 49, 102, 103, 237, 336, 337.) 527. Special Appearance. A special appearance is for the sole purpose of attacking the jurisdiction of the court. The fed- eral courts, being courts of limited jurisdiction, encourage special appearances, and will not, therefore, give such an appearance the force and effect of a general appearance though that may be the effect of state laws. 28 528. Suit in Forma Pauperis. 3, Act July 20, 1892, c. 209. "The officers of such court shall issue, serve all process, and perform all duties in such cases, and witnesses shall attend as in other cases, and the plaintiff shall have the same remedies as are provided by law in other cases." 27 (27 Stats. 252 ; 2 Fed. Stats. Ann., 2d ed., p. 651 ; 3 U. S. Comp. Stats. 1916, 1628.) 26 Southern P. Co. v. Denton, 146 U. S. 208, 36 L. Ed. 945, 13 Sup. Ct. 44. 27 Boyle v. Great Northern K. Co., 63 Fed. 539; Donovan v. Salem & P. Nav. Co., 134 Ted. 317; Taylor v. Adams Ex p. Co., 164 Fed. 616, 90 C. C. A. 526; Columb v. Webster Mfg. Co., 76 Fed. 198; Gallaway v. State Nat. Bank of Ft. Worth, 186 U. S. 177, 46 L. Ed. 1111, 22 Sup. Ct. 811. 2G7 DEFENSIVE PLEADING LAW ACTIONS. (Jh. 1 ( J ; $sj 540-541 CHAPTER 19. DEFENSIVE PLEADING LAW ACTIQNa SEO. 540. In General. 541. Time and Order of Pleading Conform to State Lawa. 542. Default Judgment. 543. Forms of Pleadings Conform to State Practice. 544. Sufficiency, Scope and Manner of Pleading Conform to State Laws. 545. Equitable Defenses to an Action at Law. 546. Amendment of Pleading. 540. In General. The time for pleading, unless special rules determine otherwise, follows state practice ( 541, below). Under 918, Rev. Stats., the district courts may make rules for entering judgments by default, and under 961, Rev. Stats., provi- sion is made for judgment by default in suits by the government on bonds. Defaults may, however, follow state practice ( 542, below). The form of pleading is that provided by the state law wherein the district lies ( 543, below). The sufficiency and scope of the pleading is governed by state laws ( 544, below). Equitable defenses to an action at law are now permitted under 274b, Jud. Code, added by amendment Act March 3, 1915, c. 90 (545, below). Amendment of pleading is under 918, 954, Rev. Stats., ( 542, 546, below). 541. Time and Order of Pleading Conform to State Laws. The state statutes and practice are followed as to the time for pleading. 1 i Werthein v. Continental By. ft T. Co., 11 Fed. 689, 20 Blatchf. 508; Eicard v. New Providence Tp., 5 Fed. 433; Phenix Ins. Co. v. Charleston Bridge Co 65 Fed. 628, 13 C. C. A. 58. 542, Ch. 19 MANUAL OF FEDERAL PROCEDURE. 268 Under 914, Rev. Stats., the district courts of the United States are authorized to follow the practice of the courts of the state in regard to the order of pleading, including the manner in which objections may be taken to the jurisdiction and the question as to whether objections to jurisdiction and defenses on the merits should be pleaded successively or together. 2 Thus, the state laws have been followed as to the order of filing pleas in abatement. 3 542. Default Judgment. 918, Rev. Stats. "... District courts may, from time to time, and in any manner not inconsistent with any law of the United States, ... make rules and orders directing . . . the entering and making of judgments by default. ..." (6 Fed. Stats. Ann., 2d ed., p. 77; 3 U. S. Comp. Stats. 1916, 1544.) 961, Rev. Stats. ' ' In all suits brought to recover the for- feiture annexed to any articles of agreement, covenant, bond, or other specialty, where the forfeiture, breach, or nonper- formance appears by the default or confession of the defend- ant, or upon demurrer, the court shall render judgment for the plaintiff to recover so much as is due according to equity. And when the sum for which judgment should be rendered is un- certain, it shall, if either of the parties request it, be assessed by a jury." (6 Fed. Stats. Ann., 2d ed., p. 117 ; 3 U. S. Comp. Stats. 1916, 1599, .p. 3205.) The state statute and practice for setting aside judgment by de- fault has been followed. 4 If the defendant fails to make an appearance within the time allowed for making an appearance under the state statutes, it would seem that the plaintiff might have a judgment entered by default in conformity therewith, under the rule that state laws govern as to time within which to plead. 2 Southern Pac. Co. v. Denton, 146 U. ,S. 209, 36 L. Ed. 945, 13 Sup. Ct. 44. 3 Tennis Bros. Co. v. Wetzel & T. R. Co., 140 Fed. 193; Id., 145 Fed. 458, 7 Ann. Cas. 426, 75 C. C. A. 266; Derk P. Yonkerman Co. v. Chas. H. Fuller's Advertising Agency, 135 Fed. 613. 4 Brown v. Philadelphia etc. R. Co., 9 Fed._183; Republic Ins. Co. v. Will iams, 3 Biss. 370, Fed. Cas. No. 11,707. 269 DEFENSIVE PLEADING LAW ACTIONS. Ch. 19, 543-544 As to what constitutes a sufficient appearance to save from de- fault, the state laws govern. Thus, in Illinois a motion to quash a service of summons was held to be sufficient appearance, 5 and in Nebraska a motion for security for costs was sufficient to save from default. 8 It would not be safe in California to rely on any such pleadings under the California law requiring the defendant to either demur or answer within the time allowed to plead. 543. Forms of Pleadings Conform to State Practice. The form of defensive pleading is that existing in the state -001111, of the forum, whether by plea, answer, demurrer, or other form of defensive pleading. 7 Thus a state rule allowing a plea in abatement to the jurisdic- tion and on the merits to be set up in the answer may be followed in the federal courts. 8 So, also, the verification of pleadings is governed by state laws for similar cases in the federal courts. 9 544. Sufficiency, Scope and Manner of Pleading Conform to State Laws. The sufficiency and scope of pleadings in actions at law are matters in which the district courts will conform to the practice of the courts of record of the states in which they are held. 10 Thus a state law requiring a plea of res judicata to be specially pleaded was followed in the federal court, 11 and a state law giving effect to general issue was followed by the federal courts. 12 The right to plead a setoff or counterclaim when not equitable in char- acter will be controlled by the state practice. 13 5 Wall v. Chesapeake etc. B. Co., 95 Fed. 398, 37 C. C. A. 129. 6 Schofield v. Palmer, 137 Fed. 754. 7 Roberts v. Lewis, 144 U. S. 656, 36 L. Ed. 582, 12 Sup. Ct. 781. 8 Draper v. Town of Springport, 21 Blatchf. 240, 15 Fed. 328. St. Louis etc. R. Co. v. Knight, 122 U. S. 96, 30 L. Ed. 1083, 7 Sup. Ct. 1132; County of Rails v. Douglass, 105 U. S. 728, 26 L. Ed. 957; Cottier v. Stimson, 9 Sawy. 435, 18 Fed. 689. 10 Glenn v. Sumner, 132 U. S. 156, 33 L. Ed. 301, 10 Sup. Ct. 41. 11 Preferred Ace. Ins. Co. v. Barker, 93 Fed. 158, 35 C. C. A. 250. 12 Hodges v. Easton, 106 U. S. 410, 27 L. Ed. 170, 1 Sup. Ct. 307; Burley v. German Am. Bank. Ill U. S. 221, 28 L. Ed. 407, 4 Sup. Ct. 341. 13 Groton Bridge & Mfg. Co. v. American Bridge Co., 151 Fed. 871, 879. 545, Ch. 19 MANUAL OF FEDERAL PROCEDURE. 270 Questions of law may be raised by motion where state law per- mits. So, also, state rules as to demurrers are followed in the fed- eral courts. 14 So, also, the state pleading as to the filing of a repli- cation or making an issue without one will be followed in the federal courts. 15 Amendments, however, are governed by 954, Rev. Stats., 523, infra) . 545.. Equitable Defenses to an Action at Law. 274b, Jud. Code, by Amendment Act March 3, 1915, c. 90. "That in all actions at law equitable defenses may be inter- posed by answer, plea, or replication without the necessity of filing a bill on the equity side of the court. The defendant shall have the same rights in such case as if he had filed a bill embodying the defense of seeking the relief prayed for in such answer or plea. Equitable relief respecting the subject mat- ter of the suit may thus be obtained by answer or plea. In case affirmative relief is prayed in such answer or plea, the plain- tiff shall file a replication. Review of the judgment or decree entered in such case shall be regulated by rule of court. Whether such review be sought by writ of error or by appeal the appellate court shall have full power to render such judg- ment upon the records as law and justice shall require." (38 Stats. 956 ; 5 Fed. Stats. Ann., 2d ed., p 1061 ; 2 U S. Comp. Stats. 1916, 1251b, p. 2023; United States v. Richardson (4th Cir.), 223 Fed. 1010, 139 C.^C. A. 386; Burrough's Adding Machine Co. v. Scandinavian-American Bank (W. D. Wash.), 239 Fed. 179; Illinois Surety Co. v. United States (7th Cir.), 226 Fed. 665, 141 C. C. A. 421.) Act June 1, 1874, c. 200. "When an occupant of land, hav- ing color of title, in good faith has made valuable improve- ments thereon, and is, in the proper action, found not to be the rightful owner thereof, such occupant shall be entitled in the federal courts to all the rights and remedies, and, upon insti- tuting the proper proceedings, such relief as may be given or secured to him by the statutes of the state or territory where the land lies, although the title of the plaintiff in the action U Sommer v. Carbon Hill Coal Co., 89 Fed. 54, 60, 32 C. C. A. 156; Nor- folk & P. Traction Co. v. Eephan, 188 Fed. 276, 110 C. C. A. 254. 15 Stratton v. Essex Co. Park Comm., 164 Fed. 901. 271 DEFENSIVE PLEADING LAW ACTIONS. Ch. 19, 546 may have been granted by the United States after said im- provements were so made." (18 Stats. 522; Fed. Stats. Ann., 2d ed., title "Public Lands"; 3 U. S. Comp. Stats. 1916, 1541.) 546. Amendment of Pleading. Section 918, Rev. Stats., per- mits the federal courts to make rules relating to "the filing of pleadings, taking of rules, . . . and otherwise regulate their own practice" (542, above) ; and 954, Rev. Stats., permits the court to amend defects and want of form "in the process or pleadings, upon such conditions as it shall, in its discretion and by its rules, prescribe" ( 523, above). These sections govern the matter of amendment of pleadings in the federal court, except in so far as state rules and practice may be adopted which are not inconsistent with the federal rules. In many cases amendments of pleadings have been allowed in conformity with state practice, and in many others they have been refused. The matter is entirely within the discretion of the court, and not reviewable except when there has been a gross abuse of discretion. 16 l Lange v. Union P. B. Co., 126 Ted. 338, 340, 62 C. C. A.. 48. 560-561, Ch. 20 MANUAL. OF FJSDERAL taoCKuuRE. 272 CHAPTER 20. SEC. 560. Continuances In General. 561. Continuances on Death of Party. 562. Survival of Action. 563. Continuance of Suit Against Delinquent in Suit for Public Moneys. 564. Continuances of Suits Under Postal Laws. 565. Continuances of Suits on Debentures. 566. Continuances of Suits Under Tariff I/awa. 560. Continuances In General. This matter conforms to state practice under 914, Rev. Stats., there being no statutory provisions except those set out in the following sections, 561 to 566, .inclusive : 955, Rev. Stats., on death of a party ; 956, Rev. Stats., survival of action ; 957, Rev. Stats., suits against delinquents for public moneys ; 958, Rev. Stats., suits under postal laws ; 959, Rev. Stats., suits on debentures ; 960, Rev. Stats., suits under tariff laws. If the judge is unable to act, the marshal or clerk may adjourn court under 12, Jud. Code (Appendix, post). If the office of judge becomes vacant, the clerk may continue pending proceedings under 22, Jud. Code (Appendix, post). Trials commenced in a district court may be concluded in a new term under 8, Jud. Code (Appendix, post). 561. Continuances on Death of Party. .555, Rev. Stats. "When either of the parties, whether plaintiff or petitioner or defendant, in any suit in any court of the United States, dies before final judgment, the executor or administrator of such deceased party may, in case the cause of action survives by law, prosecute or defend any such suit to final judgment. The defendant shall answer accordingly; and the court shall hear and determine the cause and render judgment for or 'against the executor or administrator, as the 273 CONTINUANCES AND ADJOURNMENTS. Ch. 20, 562-563 case may require. And if such executor or administrator, having been duly served with a scire facias from the office of the clerk of the court where the suit is depending, twenty days before hand, neglects or refuses to become party to the suit, the court may render judgment against the estate of the deceased party, in the same manner as if the executor or ad- ministrator had voluntarily made himself a party. The execu- tor or administrator who becomes a party, as aforesaid, shall, upon motion to the court, be entitled to a continuance of the suit until the next term of said court." (6 Fed. Stats. Ann., 2d ed., p. Ill ; 3 U. S. Comp. Stats. 1916, 1592.) 562. Survival of Action. 956, Rev. Stats. ' ' If there are two or more plaintiffs or defendants, in a suit where the cause of action survives to the plaintiff or against the surviving defendant, and one or more of them dies, the writ or action shall not be thereby abated; but, such death being suggested upon the record, the action shall proceed at the suit of the surviving plaintiff against the surviving defendant." (6 Fed. Stats. Ann., 2d ed., p. 115; 3 U. S. Comp. Stats. 1916, 1593.) 563. Continuance of Suit Against Delinquent in Suit for Public Moneys. 557, Rev. Stats. "When suit is brought by the United States against any revenue officer or other person accountable for public money, who neglects or refuses to pay into the Treasury the sum or balance reported to be due to the United States, upon the adjustment of his account it shall be the duty of the court to grant judgment at the return term, upon mo- tion, unless the defendant in open court (the United States attorney being present) makes and subscribes an oath that he is equitably entitled to credits which had been, previous to the commencement of the suit, submitted to the accounting officers of the Treasury, and rejected ; specifying in the affidavit each particular claim so rejected, and that he cannot then safely come to trial. If the court, when such oath is made, sub- scribed, and filed, is thereupon satisfied, a continuance until the next succeeding term may be granted. Such continuance Manual 18 561-566, Ch. 20 MANUAL OP FEDERAL PROCEDURE. 274 may also be granted when the suit is brought upon a bond or other sealed instrument, and the defendant pleads non est fac- tum, or makes a motion to the court, verifying such plea or motion by his oath, and the court thereupon requires the pro- duction of the original bond, contract, or other paper certified in the affidavit. And no continuance shall be granted except as herein provided." (2 Fed. Stats. Ann., 2d ed., p. 215; 3 U. S. Comp. Stats. 1916,. 1595.) 564. Continuances of Suits Under Postal Laws. 958, Rev. Stats. ' ' In suits arising under the postal laws the court shall proceed to trial, and render judgment at the return term; but whenever service of process is not made at least twenty days before the return day of such term the de- fendant is entitled to one continuance, if, on his statement, the court deems it expedient ; and if he makes affidavit that he has a claim against the Postoffice Department, which has been sub- mitted to and disallowed by the sixth auditor, specifying such claim in his affidavit, and that he could not be prepared for trial at such term for want of evidence, the court, if satisfied thereof, may grant a continuance until the next term." (6 Fed. Stats. Ann., 2d ed., p. 116; 3 U. S. Comp. Stats. 1916, 1596.) 565. Continuances of Suits on Debentures. 959, Rev. Stats. l ' In all suits for the recovery of money upon debentures issued by the collectors of customs, under any act for the collection of duties, it shall be the duty of the court to grant ju'dgment at the return term, unless the defendant, in open court, exhibits some plea, on oath, by which the court is satisfied that a continuance is necessary to the attainment of justice; in which case, and not otherwise, a continuance until the next term may be granted." (6 Fed. Stats. Ann., 2d ed., p. 116; 3 U. S. Comp. Stats. 1916, 1597.) 566. Continuances of Suits Under Tariff Laws. 960, Rev. Stats. "When suit is brought on any bond for the recovery of duties due to the United States, it shall be the duty of the court to grant judgment at the return term, upon 275 CONTINUANCES AND ADJOURNMENTS. Ch. 20, 566 motion, unless the defendant, in open court (the United States attorney being present), makes oath that an error has been committed in the liquidation of the duties demanded upon such bond, specifying the errors alleged to have been committed, and that the same have been notified in writing to the collector of the district before the said return term ; whereupon a con- tinuance may be granted until the next term, and no longer, if the court is satisfied that such continuance is necessary for the attainment of justice." (6 Fed. Stats. Ann., 2d ed., p. 116; 3 U. S. Comp. Stats. 1916, 1598.} 570-571, Ch. 21 MANUAL. OF FEDERAL PROCEDURE, 27G CHAPTER 21. MISCELLANEOUS INCIDENTAL MATTERS. SEC. 570. Consolidation of Cases. 571. Discovery At Law. 572. Motion and Notice to Produce Books or Papers in Civil Suits Under Customs Revenue Laws. 573. Dismissal or Nonsuit. 574. Verification Oaths Acknowledgments. 570. Consolidation of Cases. 921, Rev. Stats. "When causes of a like nature or relative to the same question are pending before a court of the United States, or of any territory, the court may make such orders and rules concerning proceedings therein as may be conform- able to the usages of courts for avoiding unnecessary costs or delay in the administration of justice, and may consolidate said causes when it appears reasonable to do so." (6 Fed. .Stats. Ann., 2d ed., p. 80; 3 U. S. Comp. Stats. 1916, 1547.) 920, Rev. Stats. ' ' Whenever two or more things belong- ing to the same person are seized for an alleged violation of the revenue laws, the whole must be included in one suit ; and if separate actions are prosecuted in such cases, the court shall . consolidate them." (6 Fed. Stats. Ann., 2d ed., title "Judi- Comp. Stats. 1916, 1546.) 571. Discovery At Law. 724, Rev. Stats. "In the trial of actions at law, the courts of the United States may, on motion and due notice thereof, require the parties to produce books or writings in their pos- session or power which contain evidence pertinent to the issue, in cases and under circumstances where they might be com- pelled to produce the same by the ordinary rules or proceed- ings in chancery. If a plaintiff fails to comply with such order, the court may, on motion, give the like judgment for the defendant as in cases of nonsuit; and if a defendant fails to 277 MISCELLANEOUS INCIDENTAL MATTERS. Cll. 21, 572 comply with such order, the court may, on motion, give judg- ment against him by default." (3 Fed. Stats. Ann., 2d ed.. p. 160; 3 U. S. Comp. Stats. 1916, 1469.) 572. Motion and Notice to Produce Books or Papers in Civil Suits Under Customs Revenue Laws. 5, Act June 22, 1874, c. 391. "That in all suits and pro- ceedings other than criminal, arising under any of the revenue laws of the United States, the attorney representing the gov- ernment, whenever, in his belief, any businass book, invoice, or paper, belonging to or under control of the defendant or claimant, will tend to prove any allegation made by the United States, may make a written motion, particularly de- scribing such book, invoice, or paper, and setting forth the allegation which he expects to prove ; and thereupon the court in which suit or proceeding is pending may, at its discretion, issue a notice to the defendant or claimant to produce such book, invoice, or paper in court, at a day and hour to be specified in said notice, which, together with a copy of said motion, shall be served formally on the defendant or claim- ant by the United States marshal by delivering to him a certified copy thereof, or otherwise serving the same as original notices of suit in the same court are served; and if the de- fendant or claimant shall fail or refuse to produce such book, invoice, or paper in obedience to such notice, the allegations stated in the said motion shall be taken as confessed unless his failure or refusal to produce the same shall be explained to the satisfaction of the court. And if produced, the said attorney shall be permitted, under the direction of the court, to make examination (at which examination the defendant or claimant, or his agent, may be present) of such entries in said book, invoice, or paper as relate to or tend to prove the alle- gation aforesaid, and may offer the same in evidence on behalf of the United States. But the owner of said books and papers, his agent or attorney, shall have, subject to the order of the court, the custody of them, except pending their examination in court as aforesaid." (3 Fed. Stats. Ann., 2d ed., p. 224; 6 U. S. Comp. Stats. 1916, 5799.) See, also, other statutes of a somewhat similar nature quoted above in 354 et seq., in chapter 12 on "Witnesses." 573-574, Ch. 21 MANUAL OP FEDERAL PROCEDURE. 278 573. Dismissal or Nonsuit. Except in suits lacking a ground of federal jurisdiction, governed by 37, Jud. Code, set out in 471, above, the dismissal by plaintiff, and the granting of a non- suit, conform to state practice, there being no statutory provi- sions applicable. (Central Transp. Co. v. Pullman Palace Car Co., 139 U. S. 24, 35 L. Ed. 55, 11 Sup. Ct. 478.) Thus under a state law plaintiff in a federal suit was permitted to dismiss, without prejudice, before final submission to the jury, although the judge had stated that he would sustain a motion to direct a verdict for defendant. (Chicago, M. & St. I*. Ry. Co. v. Metalstaff, 101 Fed. 769, 41 C. C. A. 669.) See chapter 55, post. 574. Verification Oaths Acknowledgments. 1778, Rev. Stats. ' ' In all cases in which, under the laws of the United States, oaths or acknowledgments may now be taken or made before any justice of the peace of any state or terri- tory, or in the District of Columbia, they may hereafter be also taken or made by or before any notary public duly appointed in any state, district, or territory, or any of the. commissioners of the circuit courts, and, when certified under the hand and official seal of such notary or commissioner, shall have the same force and effect as if taken or made by or before such justice of the peace." (4 Fed. Stats. Ann., 2d ed., p. 772; 4 U. S. Comp. Stats. 1916, 3259.) See, also, 359 above, for other statutory provisions relative to administration of oaths. 279 TRIAL LAW ACTIONS. Ch. 22, 580 CHAPTER 22. TRIAL LAW ACTIONS. SEO. 580. In General. 581. Method of Trial Under 566, Rev. Stats. 582. Cases to Which Provision not Applicable. 583. Constitutional Jury Twelve Men. 584. Qualifications and Exemptions In General. 585. Same Under Civil Bights Acts. 586. Same Penalty for Exclusion. 587. Exempt After Serving Term in a Year. 588. Jurors From Where Drawn. 589. Impaneling Jurors. 590. Venire Issuance and Return. 591. Talesmen for Petit Juries. 592. Special Juries. 593. Challenges. 594. Trial by Judge. 595. Mode of Proof Law Actions. 596. The Taking of Exceptions Does not Conform to State Practice. 597. Time for Excepting to Rulings. 598. Conduct of the Trial. 599. Charge to the Jury Instructions. 580. In General. After the case is at issue, the next step is the production of proof which under 86l, Rev. Stats. ( 595 below), must be in open court, except as otherwise specially pro- vided. There may be material testimony of witnesses who cannot be produced in open court, whose testimony should, if possible, be obtained by depositions. The grounds of taking these deposi- tions are set out in 863 and 866, Rev. Stats. The methods of taking such depositions are provided in 863 to 870, Rev. Stats., inclusive, and may be according to state practice under the Act of March 9, 1892, c. 14, 27 Stats. 7. The statutory provisions as to depositions apply alike to law and equity causes, and, there- fore, have not been treated separately for each kind of suit. The subject of depositions is treated in chapter- 13, above. 581-582, Ch. 22 MANUAL OP FEDERAL, PROCEDURE. 280 Most of the statutory provisions relating to evidence and wit- nesses in like manner apply alike to law and equity cases, and have been treated under the general headings "Evidence," in chapter 11, above, and "Witnesses," in chapter 12, above. This chapter deals with the methods of trial, mode of proof, and conduct of the trial in law actions, including the provisions relating to the qualifications and exemptions of jurors, the selec- tion of the jury, venire, talesmen, challenges, etc., and also respecting the charge to the jury. The jury's verdict, motion for new trial, and bill of exceptions are treated in the following chapter, No. 23. 581. Method of Trial Under 566, Rev. Stats. Part 566, Rev. Stats. "The trial of issues of fact in the district courts, in all causes except in equity and cases of admiralty and maritime jurisdiction and except as other- wise provided in proceedings in bankruptcy, shall be by jury. ..." (6 Fed. Stats. Ann., 2d ed., p. 121; 3 U. S. Comp. Stats. 1916, 1583.) This right to a jury trial is guaranteed in common-law cases by the United States Constitution, as follows: Part 7th Amendment U. S. Constitution. "In suits at common law, where the value in controversy shall ex- ceed twenty dollars, the right to trial by jury shall be pre- served. ..." (11 U. S. Comp. Stats. 1916, 14,401.) 582. Cases to Which Provision not Applicable. This pro- vision in the seventh Amendment refers only to cases at common law where the amount in controversy exceeds twenty dollars. The clause does not prevent a waiver of trial by jury in common-law cases. 1 The guaranty of trial by jury refers only to the federal and not the state courts, and is a limitation on the powers of the federal government. 2 1 Parsons v. Armour, 3 Pet. (U. S.) 413, 425, 7 L. Ed. 724. 2 McBride v. Stradley, 103 Ind. 465, 2 N. E. 358; Seeley v. Bridgeport, 53 Conn. 1, 22 Atl. 1017; Livingston v. Moore, 7 Pet. (U. S.) 469, 8 L. Ed. 751; Walker v. Sauvinet, 92 U. S. 90, 92. 23 L. Ed. 678; Baylis v. Travelers' Tns. Co., 113 U. S. 316, 321, 28 L. Ed. 989, 5 Sup. Ct. 494. 281 TRIAL LAW ACTIONS. Ch. 22, 583-584 It applies to the District of Columbia and to the organized territories which havo been brought under the Constitution, and to their legislative and judicial officers as also to a territorial governor, and to tribunals established under a provisional govern- ment in territory covered by the Constitution, but not to con- sular courts. 3 The constitutional provision does not apply to equity cases, 4 nor to suits in admiralty. 5 Section 566, Rev. Stats., especially excepts those kinds of causes. The constitutional amendment does not apply in suits against the United States in the court of claims. 8 583. Constitutional Jury Twelve Men. Trial by jury means a common-law jury of twelve men, in the presence of and under the supervision of a judge, who instructs them as to the law. 7 A territorial law permitting a verdict by any number of jurors less than twelve is invalid. 8 584. Qualifications and Exemptions In General. 275, Jud. Code (Drawn from 800, Rev. Stats.}. "Jurors to serve in the courts of the United States, in each state re- spectively, shall have the same qualifications, subject to the * Capital Traction Co. v. Hof, 174 U. S. 1, 43 L. Ed. 873, 19 Sup. Ct. 580; Walker V. New Mexico etc. B. B. Co., 165 U. S. 593, 595, 41 L. Ed. 837, 17 Sup. Ct. 421; Thompson v. Utah, 170 U. S. 343, 349, 42 L. Ed. 1061, 18 Sup. Ct. 620; Whallon v. Bancroft, 4 Minn. 109 (Gil. 70) ; Claim of Reside, 9 Opinions of Atty. Gen. 200; Scott v. Billgerry, 40 Miss. 119; Boss v. Mclntyre, 140 U. S. 453, 454, 35 L. Ed. 581, 11 Sup. Ct. 897. 4 Barton v. Barbour, 104 U. S. 126, 133, 26 L. Ed. 672, 676; Woodworth v. Bogers, 3 Woodb. & M. 135, Fed. Cas. No. 18,018, 2 Bobb. Pat. Cas. 625; Buford v. Holley, 28 Fed. 680; Scott v. Billgerry, 40 Miss. 119; Motte v. Bennett, 2 Fish. Pat. Cas. 642, Fed. Cas. No. 9884. 6 The Huntress, 2 Ware (Dav.), 82, 89, Fed. Cas. No. 6914; Bains v. The James and Catherine, Bald. W. 544, Fed. Cas. No. 756; United States v. La Vengeance, 3 Dall. (U. S.) 297, 1 L. Ed. 610. e McElrath v. United States, 102 U. S. 426, 440, 26 L. Ed. 189, 192; Torrey v. United States, 42 Fed. 207. 7 Maxwell v. Dow, 176 U. S. 581, 586, 44 L. Ed. 599. 20 Sup. Ct. 448, 494; Thompson v. Utah, 170 U. S. 343, 42 L. Ed. 1061, 18 Sup. Ct. 620. 8 American Pub. Co. v. Fisher, 166 U. S. 464, 467, 41 L. Ed. 1079, 17 SUP. Ct. 618; Springville City v. Thomas, 166 U. S. 707, 708, 41 L. Ed. 1172, 17 Sup. Ct. 717; Kleinschmidt v. Dunphy, 1 Mont. 118; Hawaii v. Mankichi, 190 U. S. 197, 47 L. Ed. 1016, 23 Sup.'Ct. 787. 585-588, Ch. 22 MANUAL OP FEDERAL PROCEDURE. 282 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." (36 Stats. 1164; 5 Fed. Stats. Ann., 2d ed., p. 1063; 2 U. S. Comp. Stats. 1916, 1252.) 585. Same Under Civil Rights Acts. 278, Jud. Code (Re-enacting proviso, 2, Act June 30, 1879, c. 52}. "No citizen possessing all other qualifications which are or may be prescribed by law shall be disqualified for services as grand or petit juror in any court of the United States on account of race, color, or previous condition of servi- tude." (36 Stats. 1165; 5 Fed. Stats. Ann., 2d ed., p. 1071; 2 U. S. Comp. State. 1916, 1255.) 586. Same Penalty for Exclusion. Part 4, Act March 1, 1875, c. 114. "Any officer or other person charged with any duty in the selection or summoning of jurors, who shall exclude or fail to summon any citizen, for the cause aforesaid, shall, on conviction thereof, be deemed guilty of a misdemeanor, and be fined not more than five thousand dollars." (18 Stats. 336; 2 Fed. Stats. Ann., 2d ed., p. 143 ; 4 U. S. Comp. Stats. 1916, 3929.) 587. "Exempt After Serving Term in a Year. 286, Jud. Code (Drawn from 812, Rev. Stats.}. "No per- son shall serve as a petit juror in any district court more than one term in a year; and it shall be sufficient cause of chal- lenge to any juror called to be sworn in any case 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." (36 Stats. 1166; 5 Fed. State. Ann., 2d ed., p. 1077 ; 2 U. S. Comp. Stats. 1916, 1263.) 588. Jurors From Where Drawn. 577, Jud. Code (Re-enacting 802, Rev. Stats.}. "Jurors shall be returned from such parts of the district, from time to time, as the court shall direct, so as to he most favorable 283 TRIAI^-LAW ACTIONS. Ch. 22, 589 590 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." (36 Stats. 1164; 5 Fed. Stats. Ann.,'2d ed., p. 1070; 2 U. S. Comp. Stats. 1916, 1254.) 589. Impaneling Jurors. 276, Jud. Code (Re-enacting Part 2, Act June 30, 1879, c. 52). "All such jurors, grand and petit, including those summoned 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 prescribed 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 commission in district hav- ing 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 political party in the district in which the court is held opposing that to which the clerk may belong, the clerk and said commis- sioner each to place one name in said box alternately, without reference to party affiliations, until the whole number required shall be placed therein." (36 Stats. 1164; 5 Fed. Stats. Ann., 2d ed., p. 1066; 2 U. S. Comp. Stats. 1916, 1253; Foster's Federal Practice, 5th ed., pp. 1471, 2378.) 590. Venire Issuance and Return. 279, Jud. Code (Part re-enacts 803, Rev. Stats.). "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 person named in such writ wlu> resides elsewhere than at the place at which the court is held, shall be served by the marshal mailing a copy thereof to such per- son commanding him to attend as a juror at a time and place designated therein, which copy shall be registered and de- posited in the postoffice addressed to such person at his usual 591-593, Ch. 22 MANUAL OF FEDERAL PROCEDURE. 284 postoffice address. And the receipt of the person so addressed for such registered copy shall be regarded as personal service of such writ upon such person, and no mileage shall he al- lowed for the service of such person. The postage and registry fee shall be paid by the marshal and allowed him in the settle- ment of his accounts." (36 Stats. 1165; 5 Fed. Stats. Ann., 2d ed., p. 1072; 2 U. S. Comp. Stats. 1916, 1256; Foster's Federal Practice, 5th ed., p. 1697.), 591. Talesmen for Petit Juries. 280, Jud. Code (Re-enacting 804, Eev. Stats.}. "When, from challenges or otherwise, there is not a petit jury to de- termine 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 per- son shall be sworn, as provided in the preceding section." (36 Stats. 1165 ; 5 Fed. Stats. Ann., 2d ed., p. 1073 ; 2 U. S. Comp. Stats. 1916, 1257.1 592. Special Juries. 281, Jud. Code (Re-enacting 805, Rev. Stats.). "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." (36 Stats. 1167; 5 Fed. Stats. Ann., 2d ed., p. 1074 ; 2 U. S. Comp. Stats. 1916, 1258.). 593. Challenges. Part 287, Jud. Code (Drawn from 819, Rev. Stats.). 1 . . . 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 285 TRIAL LAW ACTIONS. Ch. 22, 591 of triers. " (36 Stats. 1166 ; 5 Fed. Stats. Ann., 2d ed., p. 1078 ; 2 U. S. Comp. Stats. 1916, 1264.) 594. Trial by Judge. Although 649 and 700, Rev. Stats., specifically refer to trials by the circuit courts, and have been held to apply only to the circuit courts, and not to the district courts, nevertheless the new Judicial Code specifically provides for imposing the powers and duties of the circuit courts upon the district courts, thus allowing a waiver of jury trial and a trial by the judge. His findings of fact would be equivalent to a verdict of a jury under 649, 700, 1011, Rev. Stats. (Porter v. F. M. Davies & Co. (8th Cir.), 223 Fed. 465, 467, 140 C. C. A. 11.) 291, Jud. Code (New). "Wherever, in any law not em- braced 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." (36 Stats. 1167; 5 Fed. Stats. Ann., 2d ed., p. 1083 ; 2 U. S. Comp. Stats. 1916, 1268 ; Foster's Federal Practice, 5th ed., p. 1559; Ex parte United States, 226 U. S. 420, 57 L. Ed. 281 ; 33 Sup. Ct. 170.) 649, Rev. Stats. "Issues of fact in civil cases in any circuit court may be tried and determined by the court, without the intervention of a jury, whenever the parties, or their attorneys of record, file with the clerk a stipulation in writing waiving a jury. The finding of the court upon the facts, which may be either general or special, shall have the same effect as the verdict of a jury." (6 Fed. Stats. Ann., 2d ed., p. 130; 3 U. S. Comp. Stats. 1916, 1587.) 700, Rev. Stats. "When an issue of fact in any civil cause in a circuit court is tried and determined by the court without the intervention of a jury, according to section six hundred and forty-nine, the rulings of the court in the progress of the trial of the cause, if excepted to at the time, and duly presented by a bill of exceptions, may be reviewed by the Supreme Court upon a writ of error or upon appeal ; and when the finding is special the review may extend to the de- termination of the sufficiency of the facts found to support the judgment." (6 Fed. Stats. Ann., 2d ed., p. 205; 3 U. S. Comp. Stats. 1916, 166, p. 3350.) 595-596, Ch. 22 MANUAL OF FEDERAL PROCEDURE. 286 595. Mode of Proof Law Actions. 861, Rev. Stats. "The mode of proof in the trial of ac- tions at common law shall be by oral testimony and by ex- amination of witnesses in open court, except as hereinafter provided." (3 Fed. Stats. Ann., 2d ed., p. 168 ; 3 U. S. Comp. Stats. 1916, 1468.) The statute above quoted governs the practice of procuring tes- timony to be used in the courts of the United States, and excludes anything in the state practice to the contrary. 9 Open court is in the presence of the court and jury at the trial. 10 The exceptions mentioned are provisions respecting deposi- tions, and letters rogatory set out in chapter 13, above, tran- scripts and copies of official records and other documentary evi- dence set out in chapter 11, above. 596. The Taking of Exceptions Does not Conform to State Practice. . Appellate procedure in federal courts necessarily must be governed by their own rules, as this is a matter which has to do with the organization of the judicial system. Section 953, Rev. Stats., is the only statutory provision as to preserving exceptions 11 except that 700, Rev. Stats., providing for trial of cases without the intervention of a jury, provides that "the ruling of the court in the progress of the trial of the cause if excepted at the time, and duly presented by a bill of exceptions, may be reviewed," etc. In this last-mentioned section the federal courts act independ- ently of state statutes or state practice. 12 Even an agreement of the parties cannot authorize the federal court to depart from the federal rules in this respect. 13 Ex parte Fisk, 113 U. S. 713, 28 L. Ed. 1117, 5 Sup. Ct. 724; Union Pacific Ry. Co. v. Botsford, 141 U. S. 250, 35 L. Ed. 734, 11 Sup. Ct. 1000. 10 Beardsley v. Littell, 14 Blatchf. 102, Fed. Cas. No. 1185. 11 /In re Chateaugay Ore etc. Co.. 128 U. S. 544, 32 L. Ed. 508, 9 Sup. Ct. 150; Duncan v. Landis, 106 Fed. 839, 844, 45 C. C. A. 666. 12 United States v. King, 7 How. (U. S.) 833, 12 L. Ed. 934; Shipinan v. Ohio Coal Exch., 70 Fed. 652, 17 C. C. A. 313. 13 Richmond v. Smith, 15 Wall. (U. S.) 429, 21 L. Ed. 200; Kelsey v. Forsyth, 21 How. (U. S.) 85, 16 L. Ed. 32. 287 TRIAI^LAW ACTIONS. Ch. 22, 597-599 597. Time for Excepting to Rulings. Section 953, Rev. Stats., does not limit the time within which exceptions shall be filed or allowed, 14 nor the time to make, file, and serve a bill of exceptions. 15 Under 700, Rev. Stats., the ruling must be "excepted to at the time." It must show from the record that the party objected at the trial to the rulings and wished the exceptions noted and re- duced to a bill, and that the party persisted in them. 16 The time for presentation and allowance of the bill of exceptions may be extended in the discretion of the court. 17 598. Conduct of the Trial. The conduct of the trial is a matter of personal administration by the judge, and does not, therefore, conform to the state laws or rules on that subject. Thus, the "scintilla of evidence rule" does not apply, 18 but the judge, with due deference to the province of the jury to pass upon the weight and credibility of the evidence, 19 may withdraw the case from the jury and instruct a verdict. 20 Likewise the judge, in his discretion, may permit the jury to separate after the charge is given, 21 or refuse to ask a special ver- dict authorized by state law, 22 or may comment on the evidence though forbidden by state law. 23 599. Charge to the Jury Instructions. The charge to the jury is within the judge's personal administration of the case. As stated in the preceding section, he may comment on the evi- dence and express an opinion as to the facts, provided he sepa- 14 New York etc. R. Co. v. Hyde, 56 Fed. 188, 5 C. C. A. 461. 15 Talbot v. Press Pub. Co., 80 Fed. 567. 16 United States v. Jarvis, 3 Woodb. & M. 217, 26 Fed. Cas. No. 15,469. " Dalton v. Hazelet, 182 Fed. 561, 105 C. C. A. 99. 18 Ozanne v. Illinois C. R. Co., 151 Fed. 900. 19 Wichita R. & L. Co. v. Dulaney, 159 Fed. 417, 86 C. C. A. 397; New- burger Cotton Co. v. York Cotton Mills, 152 Fed. 398, 81 C. C. A. 524. 20 Teis v. Smuggler Min. Co., 158 Fed. 261, lo L. R. A. (N. S.) 893, 85 C. C. A. 478; McGuire v. Blount, 199 U. S. 142, 50 L. Ed. 125, 26 Sup. Ct. 1. 21 Liverpool etc. Ins. Co. v. N. & M. Friedman Co., 133 Fed. 713, 66 C. C. A. 543; Nudd v. Burrows, 91 U. S. 426, 23 L. Ed. 286. 22 United States Mutual Ace. Assn. v. Barry, 131 U. S. 100, 33 L. Ed. 60, 9 Sup. Ct. 75.1. 23 Nudd v. Burrows. 91 U. S. 426, 23 L. Ed. 286, 290; Lincoln v. Power, 151 U. S. 436, 38 L. Ed. 224, 14 Sup. Ct. 387. 599, Ch. 22 MANUAL OP FEDERAL PROCEDURE. 288 rates the law from the facts in his charge, giving the jury to under- stand that the determination of the facts is their own province. 24 The refusal to give special charges after argument was begun was held not error under a rule that special charges should be re- quested before argument. 25 The instructions need not be in writing even though the state law so requires, 26 nor need the judge permit the instructions to be taken by the jury upon retiring if that rule be not expressly adopted from the state practice. 27 24 Union Pac. B. Co. v. Thomas, 152 Fed. 365, 371, 81 C. C. A. 491. 25 Atchison T. & S. F. Ry. Co. v. Hamble, 177 Fed. 644, 101 C. C. A. 270. 26 Lincoln v. Power, 151 U. S. 436, 38 L. Ed. 224, 14 Sup. Ct. 387. 27 Nudd v. Burrows, 91 U. S. 426, 441, 23 L. Ed. 286; Western Union Tel. Co. v. Burgess, 108 Fed. 26, 47 C. C. A. 168. VERDICT, MUTlUiN i-'Uii xXilW TKIAJu, ETC. Ch. 23, blO (Jl'd CHAPTER 23. VERDICT MOTION FOB NEW TBIAL BILL OF EXCEPTIONS. SEC. 610. Special Verdict. 611. Form and Effect of General Verdict. 612. Amendment of Verdict. 613. Motion for New Trial. o!4. Bill of Exceptions Authentication, Signing and Contents. 610. Special Verdict. The federal courts are not bound by requirements of state statutes requiring special verdicts on the re- quest of either party. 1 611. Form and Effect of General Verdict. The form and effect of the verdict under the conformity act, 914, Rev. Stats., are matters in which the federal courts will follow the state practice. 2 612. Amendment of Verdict. Under 954, Rev. Stats., pro- viding for amendment of proceedings, etc., in federal courts, a ver- dict may be amended to conform to technical requirements. 8 Amendments should usually be made before the jury separates, 4 but may be so amended during the term by reference to the judge's notes or on other satisfactory evidence. 8 613. Motion for New Trial. 269, Jud. Code (Re-enacting 726, Rev. Stats.). "All the said courts shall have power to grant new trials, in cases where 1 United States Mutual Ace. Assn. v. Barry, 131 U. S. 100, 119, 33 L. Ed. 60, 9 Sup. Ct. 755. 2 Glenn v. Sumner, 132 U. S. 152. 156, 33 L. Ed. 301, 10 Sup. Ct. 41. 3 Gay v. Joplin, 13 Fed. 650, 4 McCrary, 459. 4 Pressed Steel Car Co. v. Steel Car Forge Co., 149 Fed. 182, 79 C. C. A. 130. 5 Miller v. Steele, 153 Fed. 714, 715, 82 C. C. A. 572; Elliott v. Gilmore, 145 Fed. 964, 965. Manual 19 614, Ch. 23 MANUAL OF FEDERAL PROCEDURE. 290 there has been a trial by jury, for reasons for which new trials . have usually been granted in courts of law." (36 Stats. 1163 ; 5 Fed. Stats. Ann., 2d ed., p. 1047; 2 TJ. S. Comp. Stats. 1916, 1246.) This is a matter of discretion with the trial judge, and not sub- ject to review. 6 And a motion for a new trial is not necessary for purposes of obtaining a review by the appellate court. 7 State statutes may add to the power of the court to grant new trials, as in case of allowing two new trials in ejectment suits. 8 614. Bill of Exceptions Authentication, Signing and Con- tents. 953, Rev. Stats. "That a bill of exceptions allowed in any cause shall be deemed sufficiently authenticated if signed by the judge of the court in which the cause was tried, or by the presiding judge thereof if more than one judge sat 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 motion for a new trial and allow and sign said bill of exceptions, 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 exceptions; and his ruling upon such motion and allowance and signing of such bill of exceptions shall be as valid as if such ruling and allow- ance and signing of such bill of exceptions 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 6 Newcomb v. Wood, 97 U. S. 581, 583, 24 L. Ed. 1085, 1086. 7 Aaron v. United States, 155 Fed. 833, 84 C. C. A. 67; Boatmen's Bank v. Trower Bros. Co., 181 Fed. 804, 104 C. C. A. 314; Owen v. Giles, 157 Fed 825, 85 C. C. A. 189. 8 Smale v. Mitchell, 143 U. S. 99, 108, 36 L. Ed. 90, 92, 32 Sup. Ct. 353. See, also, Clark v. Sohier, 1 Woodb. & M. 368, 4 Fed. Gas. No. 283o. 291 VERDICT, MOTION FOR NEW TRIAL, ETC. Ch. 23, 614 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 therefor." (6 Fed. Stats. Ann., 2d ed., p. 93; 2 U. S. Comp. Stats. 1916, 1590.) The contents of the bill of exceptions are set out in Rule 10 of the circuit courts of appeal (Appendix, post), and Rule 4 of the supreme court (Appendix, post), of which paragraph 1 is the same as in Rule 10, first, seventh, eighth and ninth circuits, and para- graph 2 the same as paragraph 2, Rule 10, fourth circuit. Ch. 24 MANUAL OF FEDERAL i'JROCEDURE. 292 CHAPTER 24. JUDGMENTS AND EXECUTION LAW ACTIONS. SEC. 620. Judgments In General. 621. Executions In General. 622. Judgments at Law Generally Conform to State Practice. 623. Interest on Judgments Rate, Allowance of, Levy for Conforms to State Law. 624. Judgments Kind of Money Payable in Suits for Duties. 625. Record of Judgment as Required by State Laws. 626. Indexes of Judgment Records. 627. 'Lien of Judgment Manner and Extent Conform to State Laws. 628. Lien of Judgment or Execution not Divested by Creation of a New Dis- trict or Division, nor by the Division or Transfer of Territory. 629. Amendments of Judgment. 630. Vacation of Judgment Governed by Federal Decisions. 631. Executions in Common-law Causes Conform to State Statutes by Rule of Court. 632. Executions not to Issue Against Revenue Officers for Moneys Paid into Treasury on Probable Cause. 633. Execution Stay Pending Motion for New Trial Vacation of Judgment by Granting New Trial. 634. Execution Stay for One Term Where State Law Allows Such Stay. 635. Executions may Run and be Executed in Any Part of a State, and on Behalf of the United States in Any Other State or Territory. 636. Execution Imprisonment for Debt Modifications of State Law Adopted. 637. Execution Discharge from Arrest or Imprisonment in Civil Actions Con- form to State Laws. 638. Execution Imprisonment for Debt in Government Suits Discharge of Poor Debtor Under 3471, Rev. Stats. 639. Same Discharge by President When Secretary of Treasury not Author- ized. 640. Execution Sale of Real Estate or Personal Property Place of Sale. 641. Execution Sale of Real Estate Publication of Notice. 642. Execution Sale of Real Estate Marshal's Successor to Continue Pro- ceedings. 643. Execution Sale of Real Estate in Government Suits Purchase by Government. 644. Execution Sale of Personal Property Appraisal Under 993, Rev. Stats., in Same Manner as Required by State Law. 293 JUDGMENTS AND EXECUTION LAW ACTIONS. Ch. 24, G20-621 620. Judgments In General. Judgments in law actions may conform by general rule to state laws under the "conformity act," 914, Rev. Stats. Judgments by default are authorized by 918, Rev. Stats. ( 542, above), and defaults in suits by govern- ment on bonds, 961, Rev. Stats. (542, above, and amendments by 954, Rev. Stats. ( 629, below). The allowance of interest ( 623, below) as provided by state laws is permitted by 966, Rev. Stats., interest or bonds for duties is provided by 963, Rev. Stats., and interest on customs debentures by 965, Rev. Stats. The kind of money payable in suits for duties is provided by 962, Rev. Stats. ( 624, below). The recording, docketing, and indexing of judgments conform under 1, Act Aug. 1, 1888, c. 729 ( 625, below). The clerks of the United States courts are required to keep in- dexes of such judgments by 2,' Act Aug. 1, 1888, c. 729 (626, below). The manner, effect, and extent of the lien of judgments con- form to state laws under 1, Act Aug. 1, 1888, c. 729, and when they shall cease to be liens by 967, Rev. Stats. (627, below). The lien of a judgment on execution by change of boundaries is preserved by 60, Jud. Code ( 70, above). Amendments for defect in form are permitted under 954, Rev. Stats., regardless of state statute ( 629, below). Judgments may be vacated within the term, but not after term, except by an independent suit in equity for equitable cause (630, below). 621. Executions In General. Executions on judgments in law actions may conform by general rule to state statutes un- der 916, Rev. Stats. ( 631, below). Executions are not to issue against revenue officers for moneys paid into the treasury on probable cause under 989, Rev. Stats. (632, below). Executions may be stayed pending motion for new trial under 987, Rev. Stats. ( 633, below). And where state allows stay for 622, Ch. 24 MANUAL OF FEDERAL PROCEDURE. 294 one term or more, there may be stay for one term in the federal court under 988, Rev. Stats. (634, below). Executions may run and be executed in any j>art of a state under 985, Rev. Stats., and on judgment in favor of the United States may run in every state and territory under 986, Rev. Stats. ( 635, below). State laws regarding abolishment of imprisonment for debt are effective under 990, Rev. Stats. (636, below), and for the dis- charge of a person from arrest or imprisonment in civil cases by 991, Rev. Stats. ( 637, below). A poor debtor may be discharged from imprisonment for debt in government suits by the Secretary of the Treasury under 3471, Rev. Stats. ( 638, below), or by the President under 3472, Rev. Stats. ( 639, below), when the Secretary is not authorized. The place of sale of real or personal property is governed by 1 and 2, Act March 3, 1893, c. 225 ( 640, below), and the publi- cation of notice of sale of real estate by 3 of the same act ( 641, below). Proceedings for sale of real estate are not interrupted by a vacancy in the marshal's office but are continued by his successor under ^994, Rev. Stats. (642, below). The government may be a purchaser in execution sales of real estate in government suits under 3470, Rev. Stats. ( 643, below). Appraisal of personal property sold on execution may conform under 993, Rev. Stats., to state laws ( 644, below). 622. Judgments at Law Generally Conform to State Prac- tice. Part 91 4, Rev. Stats. "The practice, . . . forms, and modes of proceeding in civil causes . . . shall conform, as near as may be, to the practice, . . . forms, and modes of pro- ceeding existing at the time in like causes in the courts of rec- ord of the state within which such . . . district courts are held, any rule of court to the contrary notwithstanding." (6 Fed. Stats. Ann., 2d ed., p. 21 j 3 U. S. Comp. Stats. 1916, 1537, p. 2912.) 205 JUDGMENTS AND EXECUTION LAW ACTIONS. Ch. 24, 023-624 Judgments by default generally conform to state statutes though the district courts may provide for same by rule under 918, Rev. Stats. This subject is treated in 542, supra. 623. Interest on Judgments Rate, Allowance of, Levy for Conforms to State Law. 966, Rev. Stats. "Interest shall be allowed on all judg- ments in civil causes, recovered in a circuit or district court, and may be levied by the marshal under process of execution issued thereon, in all cases where, by the law of the state in which such court is held, interest may be levied under process of execution on judgments recovered in the courts of such state ; and it shall be calculated from the date of the judgment, at such rate as is allowed by law on judgments recovered in the courts of such state." (4 Fed. Stats. Ann., 2d ed., p. 604; 3 U. S. Comp. Stats. 1916, 1605.) Interest on Bonds for Duties. 963, Rev. Stats. "Upon all bonds, on which suits are brought for the recovery of duties, interest shall be allowed, at the rate of six per centum a year, from the time when said bonds became due." (2 Fed. Stats. Ann., 2d ed., p. 1132; 3 U. S. Comp. Stats. 1916, 1601.) Interest on Customs Debentures. 965, Rev. Stats. ' ' In suits upon debentures issued by the collectors of the customs under any act for the collection of duties, interest shall be allowed, at the rate of six per centum per annum, from the time when such debenture became due and payable." (2 Fed. Stats. Ann., 2d ed., p. 1132 ; 3 U. S. Comp. Stats. 1916, 1603.) 624. Judgments Kind of Money Payable in Suits for Duties. 1962, Rev. Stats. "In all suits by the United States for the recovery of duties upon imports, or of penalties for the nonpayment thereof, the judgment shall recite that it is ren- dered for duties, and such judgment, with interest thereon, and costs, shall be payable in the coin by law receivable for 625-626, Ch. 24 MANUAL OF FEDERAL PROCEDURE. 296 duties; and the execution issued thereon shall set forth that the recovery is for duties, and shall require the marshal to satisfy the same in the coin by law receivable for duties; and in case of levy upon and sale of the property of the judgment , debtor, the marshal shall refuse payment from any purchaser at such sale in any other money than that specified in the exe- cution." (2 Fed. Stats. Ann., 2d ed., p. 1132; 3 U. S. Comp. Stats. 1916, 1600.) 625. Record of Judgment as Required by State Laws. Part 1, Act Aug. 1, 1888, c. 729. ." '. . . That whenever the laws of any state require a judgment or decree of a state court to be registered, recorded, docketed, 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 regis- tered, recorded, docketed, indexed, or otherwise conformed to the rules and requirements relating to the judgments and de- crees of the courts of the state." (25 Stats. 357; 4 Fed. Stats. Ann., 2d ed., p. 608; 3 U. S. Comp. Stats. 1916, 1606.) Section 3, Act August 1, 1888, chapter 729, obviating the neces- sity of filing a transcript of a judgment in the state office of the county where the clerk of the United States has a permanent office, is repealed by Act August 17, 1912, c. 300, 37 Stats. 311 ; 3 U. S. Comp. Stats. 1916, p. 3211. 626. Indices of Judgment Records. 2, Act Au& 1, 1888, c. 729. "That the clerks of the sev- eral courts of the United States shall prepare and keep in their respective offices complete and convenient indices and cross indices of the judgment records of said courts, and such indices and records shall at all times be open to the inspection and examination of the public." (25 Stats. 357; 4 Fed. Stats. Ann., 2d ed., p. 609; 3 U. S. Comp. Stats. 1916, 1607.) 297 JUDGMENTS AND EXECUTION LAW ACTIONS. Ch. 24, 627-G29 627. Lien of Judgment Manner and Extent Conform to State Laws. Part 1, Act Aug. 1, 1888, c. 729. "That judgments and decrees rendered in a circuit or district court of the United States within any state shall be liens on property throughout such state, in the same manner, and to the same extent, and under the same conditions only, as if such judgments and de- crees had been rendered by a court of general jurisdiction of such state: . . . ". (25 Stats. 357; 4 Fed. Stats. Ann., 2d ed., p. 608; 3 U. S. Comp. Stats. 1916, 1606.) 967, Eev. Stats. "Judgments and decrees rendered in a circuit or district court, within any state, shall cease to be liens on real estate or chattels real, in the same manner and at like periods as judgments and decrees of the courts of such state cease, by law, to be liens thereon." (4 Fed. Stats. Ann., 2d ed., p. 606; 3 U. S. Comp. Stats. 1016, 1608.) 628. Lien of Judgment or Execution not Divested by Crea- tion of a New District or Division, nor by the Division or Trans- fer of Territory. By 60, Jud. Code, quoted in 70, supra, and in the Appendix, it is provided that the lien of a judgment or execution, etc., shall not be divested by a change of boundaries of any territory, and that a certified copy thereof may be filed in the proper court of the division or district in which the property is located after such transfer, and have the same effect as an original. 629. Amendments of Judgment. Part 954, Rev. Stats. "No . . . judgment ... in civil causes, in any court of the United States, shall be abated, arrested, quashed, or reversed for any defect or want of form, . . . and such court shall amend every such defect and want of form . . . upon such conditions as it shall, in its discretion and by its rules, prescribe." (6 Fed. Stats. Ann., 2d ed., title "Judiciary"; 3 U. S. Comp. Stats. 1916, 1591.) This section does not permit amendments in judgments except as to defects or want of form. 1 1 Albers v. Whitney, 1 Story, 310, 1 Fed. Gas. No. 137. 630-631, Ch. 24 MANUAL OF FEDERAL PROCEDURE. 298 The judgment may be amended, modified, or set aside during the term of entry. 2 630. Vacation of Judgment Governed by Federal Decisions. The inherent power to vacate a judgment during the term in which it is entered is settled beyond controversy. 3 But a judgment cannot be changed or substantially modified after the term has ex- pired regardless of state law or practice. 4 There may, however, be an independent equity suit to relieve of a judgment at law where there is fraud or other equitable grounds. 5 631. Executions in Common-law Causes Conform to State Statutes by Rule of Court. 916, Rev. Stats. "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 1;he 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 en- acted 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 force in such state in relation to remedies upon judgments, as aforesaid, by execution or otherwise." (3 Fed. Stats. Ann., 2d ed., p. 229 ; 3 U. S. Comp. Stats. 1916, 1540.) "When parties seek attachments, garnishments, executions, pro- visional remedies of various kinds, in the courts of the United States, it is not the habit of counsel or of the court to search the statutes of a quarter of a century ago, and to conform the pro- ceedings of the federal courts to those then in force in the courts of the several states, but they adopt and use remedies prescribed by their state statutes in force at the time they act. A general and uniform practice becomes a general and established rule of the court, and in the absence of convincing evidence to the con- 2 Southern Pac. R. Co. v. Kelley, 187 Fed. 937, 939, 109 C. C. A. 659. 3 Ibid. 4 Bronson v. Schulten, 104 U. S. 410, 26 L. Ed. 797. (> Johnson v. Waters, 111 U. S. 640, 667, 28 L. Ed. 547, 556, 4 Sup. Ct. 619, 291) JUDGMENTS AND EXECUTION LAW ACTIONS. Ch. 24, 632-G33 trary the presumption in the appellate court is that the remedial statutes in force in the states at the time when proceedings under them were taken in the federal courts had been adopted by those courts, either by written rule or by general practice." 8 632. Executions not to Issue Against Revenue Officers for Moneys Paid into Treasury on Probable Cause. 989, Rev. Stats. ' ' When a recovery is had in any suit or proceeding against a collector or other officer of the revenue for any act done by him, or for the recovery of any money exacted by or paid to him and by him paid into the Treasury, in the performance of his official duty, and the court certifies that there was probable cause for the act done by the collector or other officer, or that he acted under the directions of the Secretary of the Treasury, or other proper officer of the gov- ernment, .no execution shall issue against such collector or other officer, but the amount so recovered shall, upon final judgment, be provided for and paid out of the proper appro- priation from the Treasury." (3 Fed. Stats. Ann., 2d ed., p. 232; 3 U. S. Comp. Stats. 1916, 1635.) 633. Execution Stay Pending Motion for New Trial- Vacation of Judgment by Granting New Trial. 987, Rev. Stats. "When a circuit court enters judgment in a civil action, either upon a verdict or on a finding of the court upon the facts, in cases where such finding is allowed, execution may, on motion of either party, at the discretion of the court, and on such conditions for the security of the ad- verse party as it may judge proper, be stayed forty-two days from the time of entering judgment, to give time to file in the clerk's office of said court a petition for a new trial. If such petition is filed within said term of forty-two days, with a cer- tificate thereon from any judge of such court that he allows it to be filed, which certificate he may make or refuse at his dis- cretion, execution shall, of course, be further stayed to the next session of said court. If a new trial be granted, the former judgment shall be thereby rendered void." (3 Fed. Stats. Ann., 2d ed., p. 230; 3 U. S. Comp. Stats. 1916, 1633.) 6 Logan v, Goodwin, 104 TVd. 490. 43 ff, C. A. 658. 634-636, Ch. 24 MANUAL OF FEDERAL PROCEDURE. 300 634. Execution Stay for One Term Where State Law Allows Such Stay. 988, Rev. Stats. " (When judgment debtor entitled to a continuance of one term.) In any state where judgments are liens upon the property of the defendant, and where, by the laws of such state, defendants are entitled, in the courts thereof, to a stay of execution for one term or more, defend- ants in actions in courts of the United States, held therein, shall be entitled to a stay of execution for one term. " (3 Fed. Stats. Ann., 2d ed., p. 231; 3 U. S. Comp. Stats. 1916, 1634.) 635. Executions may Run and be Executed in Any Part of a State, and on Behalf of the United States in Any Other State or Territory. 985, Rev. Stats. "All writs of execution upon judgments or decrees obtained in a circuit or district court, in any state which is divided into two or more districts, may run and be executed in any part of such state; but shall be issued from, and made returnable to, the court wherein the judgment was obtained." (3 Fed. Stats. Ann., 2d ed., p. 229 ; 3 U. S. Comp. Stats. 1916, 1631.) 986, Rev. Stats. "All writs of execution upon judgments obtained for the use of the United States, in any court thereof, in one state, may run and be executed in any other state, or in any territory, but shall be issued from, and made return- able to, the court wherein the judgment was obtained." (3 Fed. Stats. Ann., 2d ed., p. 230; 3 U. S. Comp. Stats. 1916, 1632.) 636. Execution Imprisonment for Debt Modifications of State Law Adopted. 990, Rev. Stats. "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, condi- tions, 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 therein; and the same course of proceedings shall be adopted 301 JUDGMENTS AND EXECUTION LAW ACTIONS. Ch. 24, 637-638 therein as may be adopted in the courts of such state." (3 Fed. Stats. Ann., 2d ed., p. 234; 3 U. S. Comp. Stats. 1916, 1636.) 637. Execution Discharge from Arrest or Imprisonment in Civil Actions Conform to State Laws. 991, Rev. Stats. "When any person is arrested or im- prisoned in any state, on mesne process or execution issued from any court of the United States, in any civil action, he shall be entitled to discharge from such arrest or imprison- ment in the same manner as if he were so arrested and im- prisoned on like process from the courts of such state. The same oath may be taken, and the same notice thereof shall be required, as may be provided by the laws of such state, and the same course of proceedings shall be adopted as may be adopted in the courts thereof. But all such proceedings shall be had before one of the commissioners of the circuit court for the district where the defendant is so held." (3 Fed. Stats. Ann., 2d ed., p. 237; 3 U. S. Comp. Stats. 1916, 1637.) 638. Execution Imprisonment for Debt in Government Suits Discharge of Poor Debtor Under 3471, Rev. Stats. 3471, Rev. Stats. "Any person imprisoned upon execu- tion issuing from any court of the United States, for a debt due to the United States, which he is unable to pay, may, at any time after commitment, make application, in writing, to the Secretary of the Treasury, stating the circumstances of his case and his inability to discharge the debt ; and thereupon the Secretary may make, or require to be made, an examina- tion and inquiry into the circumstances of the debtor, by the oath of the debtor, which the Secretary, or any other per- son by him specially appointed, is authorized to administer, or otherwise, as the Secretary shall deem necessary and ex- pedient, to ascertain the truth; and upon proof made to his satisfaction, that the debtor is unable to pay the debt for which he is imprisoned, and that he has not concealed or made any conveyance of his estate, in trust, for himself, or with an intent to defraud the United States, or to deprive them of their legal priority, the Secretary is authorized to receive from such debtor any deed, assignment, or conveyance of his 639-640, Ch. 24 MANUAL OF FEDERAL PROCEDURE. 302 real or personal estate, or any collateral security, to the use of the United States. Upon a compliance by the debtor with such terms and conditions as the Secretary may judge reason- able and proper, the Secretary must issue his order, under his hand, to the keeper of the prison, directing him to dis- charge the debtor from his imprisonment under such execu- tion. The debtor shall not be liable to be imprisoned again for the debt ; but the judgment shall remain in force, and may be satisfied out of any estate which may then, or at any time afterward, belong to the debtor. The benefit of this section shall not be extended to any person imprisoned for any fine, forfeiture, or penalty, incurred by a breach of any law of the United States, or for moneys had and received by any officer, agent, or other person, for their use; nor shall its provisions extend to any claim arising under the postal laws." (3 Fed. Stats. Ann., 2d ed., p. 240; 6 U. S. Comp. Stats. 1916, 6377.) 639. Same Discharge by President When Secretary of Treasury not Authorized. 3472, Rev. Stats. "Whenever any person is imprisoned upon execution for a debt due to the United States, which he is unable to pay, and his case is such as does not authorize his discharge by the Secretary of the Treasury, under the preced- ing section, he may make application to the President, who, upon proof made to his satisfaction that the debtor is unable to pay the debt, and upon a compliance by the debtor with such terms and conditions as the President shall deem proper, may order the discharge of such debtor from his imprison- ment. The debtor shall not be liable to be imprisoned again for the same debt; but the judgment shall remain in force, and may be satisfied out of any estate which may then, or at any time afterward, belong to the debtor." (3 Fed. Stats. Ann., 2d ed., p. 241; 6 U. S. Comp. Stats. 1916, 6378.) 640. Execution Sale of Real Estate or Personal Property Place of Sale. 1, Act March 3, 1893, c. 225. "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 303 JUDGMENTS AND EXECUTION LAW ACTIONS. Ch. 24, 641-642 greater part thereof, is located, or upon the premises as the court rendering such order or decree of sale may direct." (27 Stats 751 ; 3 Fed. Stats. Ann., 2d ed., p. 241 ; 3 U. S. Comp. Stats. 1916, 1640.) Personal property sold same as real estate unless otherwise ordered. 2, Act March 3, 1893, c. 225. "That all personal prop- erty 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 opinion of the court rendering such order or decree, it would be best o sell it in some other manner." (27 Stats. 751 ; 3 Fed. Stats. Ann., 2d ed., p. 243 ; 3 U. S. Comp. Stats. 1916, 1641.) 641. Execution Sale of Real Estate -Publication of Notice. 3, Act March 3, 1893, c. 225. "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 no- tices of such proposed sale being ordered and had once a week for at least four weeks prior to such sale in at least one news- paper printed, regularly issued, and having a general circu- lation 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 property 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 the notice of sale herein provided for to be made in such other papers as may seem proper." (27 Stats. 751 ; 3 Fed. Stats. Ann., 2d ed., p. 243; 3 U. S. Comp. Stats. 1916, 1642.) 642. Execution Sale of Real Estate Marshal's Successor to Continue Proceedings. 994, Rev. Stats. "When a marshal dies, or is removed from office, or the term of his commission expires, after he has taken in execution, under process from a court of the United States, any lands, tenements, or hereditaments, and before sale or other final disposition thereof, the like pro- 643-644, Ch. 24 MANUAL OF FEDERAL PROCEDURE. 304 cess shall issue to the succeeding marshal, and the same pro- ceeding shall be had as if such marshal had not died or been removed, or the term of his commission had not expired. And when a marshal dies or is removed from office, or the term of his commission expires, after he has sold any lands, tenements, or hereditaments, under process from the court of the United States, and before a deed for the same is exe- cuted by him to the purchaser, such court may, on applica- tion by the purchaser, or by the plaintiff at whose suit the sale was made, setting forth the case and the reason why the title was not perfected by said marshal, order the mar- shal for the time being to perfect the title and execute a deed to the purchaser, upon his paying the purchase money and costs remaining unpaid." (3> Fed. Stats. Ann., 2d ed., p. 239; 3 U. S. Comp. Stats. 1916, 1643.) 643. Execution Sale of Real Estate in Government Suits Purchase by Government. 3470, Rev. Stats. "At every sale, on execution, at the suit of the United States, of lands or tenements of a debtor, the United States may, by such agent as the Solicitor of the Treasury shall appoint, become the purchaser thereof; but in no case shall the agent bid in behalf of the United States a greater amount than that of the judgments for which such estate may be exposed to sale, and the costs. Whenever such purchase is made, the marshal of the district in which the sale is held shall make all needful conveyances, assign- ments, or transfers to the United States." (3 Fed. Stats. Ann., 2d ed., p. 230; 6 U. S. Comp. Stats. 1916, 6376.) 644. Execution Sale of Personal Property Appraisal Under 993, Rev. Stats., in Same Manner as Required by State Law. 993, Rev. Stats. "(Goods taken on & fieri facias, how appraised.) "When it is required by the laws of any state that goods taken in execution on a writ of fieri facias shall 'be appraised, before the sale thereof, the appraisers appointed under the authority of the state may appraise goods taken in execution on a fieri facias issued out of any court of the United States, in the same manner as if such writ had issued 305 JUDGMENTS AND EXECUTION LAW ACTIONS. Ch. 24, 644 out of a court of such state. And the marshal, in whose custody such goods may be, shall summon the appraisers, in the same manner as the sheriff is, by the laws of such state, required to summon them ; and if the appraisers, being duly summoned, fail to attend and perform the duties required of them, the marshal may proceed to sell such goods with- out an appraisement. When such appraisers attend they shall be entitled to the like fees as in cases of appraisements under the laws of the state." (3 Fed. Stats. Ann., 2d ed., p. 239 ; 3 U. S. Comp. Stats. 1916, 1639.) Manual 20 660-662, Ch. 25 MANUAL OF FEDERAL PROCEDURE. CHAPTER 25. A SUIT IN EQUITY SUMMARY. SEC. 660. The Bill. 661. Precipe and Subpoena. 662. Discovery Interrogatories by Plaintiff. 663. Depositions Under Order of Court. 664. Return of Subpoena. 665. Time for Defensive Pleading. 666. Hearing of Motion to Dismiss. 667. Time for Answer After Overruling Motion to Dismiss. 668. Time for Answer to Amended Bill. 669. Issue When No Counterclaim or Setoff. 670. Discovery Interrogatories by Defendant. 671. Depositions in Special Cases After Filing the Bill Before Issue Joined. 672. "Counterclaim Time for Serving Copy on Other Defendants. 673. Motion to Strike Out Defense. 674. Time for Reply. 675. Issue When Counterclaim or Setoff is Pleaded. 676. Trial Calendar. 677. Depositions After Case on Trial Calendar. 678. Continuances. 679. Reinstatement of Cases Dropped from Calendar Time for. 660. The Bill (chapter 26, below). After preparing a bill in equity in conformity with Rule 25 ( 692, below), the same may be filed under Rule 1, providing that the court is always open for such purposes. 661. Precipe and Subpoena (chapter 34, below). Under Rule 12, whenever a bill is filed, and not before, the clerk shall issue the process of subpoena for defendant thereon as of course, on the application of plaintiff. Time for return of sub- poena is twenty days from issuance. (Rule 12.) 662. Discovery Interrogatories by Plaintiff (chapter 43, below). Under Equity Rule 58, the plaintiff, at any time after 307 A SUIT IN EQUITY SUMMARY. Ch. 25, G63-668 filing the bill, and not later than twenty-one days after the joinder at issue, may file written interrogatories for discovery of facts and documents material to the issue. 663. Depositions Under Order of Court (chapter 48, below). Rule 47 specifies the time of taking depositions, and makes an exception as follows: "Unless otherwise ordered by the court or judge for good cause shown." Under this exception it seems that depositions may be taken at any time after filing the bill, even before issue is joined, but ordinarily depositions cannot be taken until after issued is joined. (See 671, below.) 664. Return of Subpoena. Under Equity Rule 12, the subpoena is returnable into the clerk's office twenty days from the issuing thereof. 665. Time for Defensive Pleading (chapters 35 and 36 be- low). Under Equity Rules 12 and 16, unless the time shall be enlarged for cause shown by a judge of the court, defendant must file his answer or other defense to the bill in the clerk's office on or before the twentieth day after service, excluding the day thereof. Hearing of Motion to Dismiss (chapter 39, below). Under Equity Rule 29, 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. 667. Time for Answer After Overruling Motion to Dismiss. Under Equity Rule 29, if the motion to dismiss be denied, the answer shall be filed within five days thereafter. 668. Time for Answer to Amended Bill. Under Equity Rule 32, the defendant shall answer an amendment to the bill G69-672, Ch. 25 MANUAL OP FEDERAL PROCEDURE. 308 made after answer is filed, within ten days after that on which the amendment or amended bill is filed unless the time is en- larged or otherwise ordered by the judge of the court. 669. Issue When No Counterclaim or SetofT. Under Equity Rule 31, unless the answer assert a setoff or counter- claim, no reply shall be required without special order of the court or judge, but the cause shall be deemed at issue upon the filing of the answer. If a setoff or counterclaim be filed, pre- sumably the case is at issue upon filing the reply. (See 675, below.) 670. Discovery Interrogatories by Defendant (chapter 43, below). Under Equity Rule 58, the defendant at any time after filing his answer not later than twenty-one days after joinder of issue may file interrogatories in writing for the discovery of facts and documents material to his defense of the cause. 671. Depositions in Special Cases After Filing the Bill Be- fore Issue Joined. Under Rule 54, as a general rule, deposi- tions under Revised Statutes, 863, 865, 866 and 867, are to be taken after cause is at issue, and under Rule 47 depositions are only taken for good and exceptional cause after the cause is at issue, but in Equity Rule 47 an exception is provided as follows : "... 'All depositions taken tinder a statute, or under any such order of court, shall be taken and filed as follows, unless otherwise ordered by the court or judge for good cause shown; ..." Mention is made of the subject here in order to call attention to this exception permitting depositions to be taken before issue is joined. 672. Counterclaim Time for Serving Copy on Other De- fendants (chapter 45, below). Under Equity Rule 31, if the 309 A SUIT IN EQUITY SUMMARY. Cll. 25, 673-G77 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 filing thereof. 673. Motion to Strike Out Defense (chapter 46, below). Under Equity Rule 33, if an answer set up an affirmative de- fense, setoff, or 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. 674. Time for R'eply (chapter 47, below). If a reply is required to a setoff or counterclaim pleaded in the answer, plaintiff shall reply under Equity Rule 31, within ten days after filing of the answer unless a longer time be allowed by the court or judge. Other defendants should reply ten days after ser- vice of a copy of the answer upon them. 675. Issue When Counterclaim or Setoff is Pleaded. Unless the answer assert a setoff or counterclaim, the cause shall be deemed at issue upon the filing of the answer, but if the answer include a setoff or counterclaim, presumably the cause would be at issue upon the filing of the reply. 676. Trial Calendar (chapter 49, below). After the time has elapsed for taking and filing depositions under these rules, the case shall be placed on the trial calendar under Equity Rule 56. 677. Depositions After Case on Trial Calendar. Under Equity Rule 56, no depositions shall be taken after the case is placed upon the trial calendar, except upon some strong reason shown by affidavit disclosing why the testimony of the witness cannot be had orally on the trial, why his deposition has not been before taken, and setting out the testimony which it is expected the witness will give. 678-679, Ch. 25 MANUAL. OP FEDERAL PROCEDURE. 310 678. Continuances. Under Rule 57, a case may be passed over to another day of the same term by consent of the counsel or order of the court. A case shall not be continued beyond the term, save in excep- tional cases by order of the court upon good cause shown by af- fidavit and upon such terms as the court shall in its discretion impose, and the case shall be dropped from the trial calendar subject to reinstatement within one year on application to the court by either party, in which event it shall be heard on the earliest convenient day. 679. Reinstatement of Cases Dropped from Calendar Time for. Under Equity Rule 57, unless a case dropped from the trial calendar is reinstated within the year, the suit shall be dis- missed without prejudice to a new one. to rmjjf oil THE BILL IN EQUITY. Ch. 26, 690 CHAPTER 26. THE BILL LN EQUITY. SBO. 690. General Statement. 691. Differences Between State and Federal Statement of Cause of Action. 692. Contents of a Bill in Equity Equity Bule 25. 693. Caption of the Bill. 694. Citizenship and Eesidence of Parties. 695. Jurisdictional Grounds. 696. Statement of Ultimate Facts The Cause of Action. 697. Proper Parties. 698. The Prayer of the Bill. 699. Signing the Bill. 700. Verifying the Bill. 690. General Statement. The initial pleading in a suit in equity is the bill. Its filing and not the issuance of summons is the beginning of the suit in equity. (Waldo v. Wilson (4th Cir.), 231 Fed. 654.) The bill is analogous to the declaration in an action at law. While in the past the established formality of its structure placed it in a class apart from most modern pleadings, and while from the very nature of our federal practice this is still true to some extent, there is nevertheless manifested in the equity rules that took effect February 1, 1913, a strong tendency toward greater simplicity and expedition of pleading, and toward conformity with the rules of pleading governing the form and structure of the complaint in a civil action, as adopted in the various states under the reform or code procedure. The supreme court of the United States, by Equity Rule 18, has abrogated technical forms of pleading by providing: "Unless otherwise prescribed by statute or these rules, the technical forms of pleadings in equity are abolished." (3 U. S. Comp. Stats. 1916, 1536, p. 2502; Foster's Federal Practice, 5th ed., p. 511; Simkins' Federal Equity Suit, 3d ed., p. 36.) "' ;' 690, Ch. 26 MANUAL OF FEDERAL PROCEDURE. 312 The rules have so simplified the practice that practitioners have hesitated to avail themselves of the advantages of the new procedure. The remarks of the Judge in a recent case l are so pertinent that they are quoted below: "What may be observed with respect to the pleadings in this case may be applied to many cases which have been brought since the adoption of the new equity rules, for it has become apparent that solicitors in equity, and especially solicitors in patent causes, have hesitated to conform to the provisions of those rules. "Rule 25, which relates to the contents of a bill of com- plaint, is one which should be recognized by the profession as adapted, not only for the relief of the courts, but for the relief of counsel. . . . "It is unnecessary in this case to determine whether or not, jsince the new equity rules, a plaintiff may safely omit the averments of compliance with all conditions precedent to the grant of a patent, but it is well to have in mind as a suggestion . . . that, if the bill avers that the patentee or plaintiff 'is the original and first inventor of a new and useful improvement and invention, . . . which are fully and particularly de- scribed in the letters patent hereinafter mentioned, and which had not been known or used before his said invention,' a great deal of verbiage common in the bills in patent causes can be eliminated. "The general averment that an invention had not been known or used before is certainly not helped by limiting such averment to this country, and then averring that it had not been patented or described in this or any foreign country, that it had not been for more than two years prior to the date of his application described or in public use or on sale in this country, and that it had not been abandoned to the public. The detailed averments thus briefly expressed are altogether not any more forceful than the brief averment hereinabove quoted from the case last cited^ "The prayers of the bill in this case are such as were com- mon prior to the adoption of the equity rules. They include prayers that the defendant be decreed to pay the costs, and i Pittsburgh Water Heater Co. v. Beler Water Heater Co. (W. D. Pa.), 222 Fed. 950-952. 313 THE BILL IN EQUITY. Ch. 26, 690 that the court grant a writ of subpoena, and that the de- fendant be bound to answer, waiving, however, answer under oath. "The equity rules have sufficient provisions as to costs to justify omission of a prayer for the imposition of costs. With respect to the prayer for a subpoena, Rule 12 provides that the clerk shall issue the same whenever a bill is filed upon application by the plaintiff. No prayer for process is necessary, because it is not issued by an order of the court, but by the clerk, under the rule. The prayer that the defend- ant be required to answer is not necessary, except under Rule 40, relating to nominal parties, 'unless the plaintiff specially require him to do so by prayer,' for every defendant, other than a nominal party, is required to answer or take some other step, if he would not have a decree against him. The waiver of an answer under oath seems wholly unnecessary, because the equity rules apparently do not require any answer to be made under oath. It cannot be inferred that an answer should be made under oath, when the bill is not required to be verified by the oath of the plaintiff, except where some special relief pending the suit be required. The answer no longer appears to be the expression of the results of search- ing the conscience of the defendant. The method pointed out in Rule 58 for procuring discovery by means of interroga- tories is now the method of searching the conscience of the opposite party. That rule provides that the answers to the interrogatories shall be in writing under oath and signed by the party. It seems, therefore, a proper inference from the provisions of the equity rules with respect to oaths to por- tions of the record other than the answer, and the omission of the requirement of an oath to an answer, that an answer in equity need not now be made under oath. "The foregoing observations are more by way of sugges- tion to the profession than as laying down rules which should govern in the preparation of a bill. The court is not unmind- ful of the fact that Rule 25 is not an absolute direction of all that a bill should contain, but that it is a statement of what shall be sufficient to sustain a bill. If the matters therein prescribed are contained in the bill, the bill is a good bill, although other matters may be embraced therein. The aim of the rule is brevity and simplicity of allegations in bills, and the profession should lend their aid to such end." 691-692, Ch. 26 MANUAL OP FEDERAL PROCEDURE. 314 691. Differences Between State and Federal Statement of Cause of Action. A bill in equity differs from the statement of a similar cause of action in the state court in these five main points, (1) The citizenship and residence of each party must be shown; (2) a ground of federal jurisdiction must be set out; (3i) in cases where the amount in controversy is material this must be distinctly averred; (4) a ground of equitable juris- diction must appear; (5) the bill need not be verified unless special relief, pending the suit, is desired. The federal courts being courts of limited jurisdiction, a ground of jurisdiction must be made to appear, which, in cases of concurrent jurisdiction with state courts, is either diverse citizenship or a federal question, and in both such cases it must also appear that the amount in controversy, exclusive of interest and costs, must exceed the sum or value of three thousand dol- lars, unless excepted under 24, Jud. Code (chapter 8, above). The citizenship of each party must necessarily be shown where the basis of the court's jurisdiction is diverse citizenship, and, for the sake of uniformity, and as bearing oftentimes on the question of venue, this is also required where the ground of jurisdiction is a federal question. (Venue, chapter 4, above.) 692. Contents of a Bill in Equity Equity Rule 25. "Bill of complaint Contents. Hereafter it shall be suf- ficient that a bill in equity shall contain, in addition to the usual caption: "First, the full name, when known, of each plaintiff and defendant, and the citizenship and residence of each party, If any party be under any disability that fact shall be stated. "Second, a short and plain statement of the 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 state- ment of evidence. "Fourth, if there are persons other than those named as de- fendants who appear to be proper parties, the bill should state why they are not made parties as that they are not 315 THE BILL IN EQUITY. Ch. 26, 693-694 within the jurisdiction of the court, or cannot be made parties without ousting the jurisdiction. "Fifth, a statement of and prayer for any special relief pending the suit or on final hearing, which may be stated and sought in alternative forms. If special relief pending the suit be desired, the bill should be verified by the oath of the plaintiff, or some one having knowledge of the facts upon which such relief is asked." (3 U. S. Comp. Stats. 1916, 1536, p. 2504; Foster's Federal Practice, 5th ed., p. 469 et seq. ; Simkins' Federal Equity Suit, 3d ed., p. 268.) 693. Caption of the Bill. Equity Rule 25 makes five speci- fications for framing a bill in equity "in addition to the usual, caption." The title of the court and the title of the action constitute the "usual caption" mentioned in Rule 25 of the bill, but are not under the rules a part of it so as to cure defects of the statement of the cause of action. It may be set out in the following manner: In the District Court of the United States for the District of , Division Sitting at . John Doe, Plaintiff, v. Richard Roe, Defendant. COMPLAINT IN EUQITY. 694. Citizenship and Residence of Parties. It has always been a requirement of bills in equity in the federal courts that "the full name, when known, of each plaintiff and defendant, and the citizenship and residence of each party," should be set out, the purpose being to show jurisdiction when the same de- pends upon diversity of citizenship and when the ground of jurisdiction is a federal question for the sake of uniformity, and in both cases to protect the parties by enabling them to locate and identify each other with certainty with a view to compelling obedience to any order of the court, and to inform the court as 695, Ch. 26 MANUAL OF FEDERAL PROCEDURE. 316 well as the opposing party of the conditions and disabilities, if any, of the respective parties, and as bearing in many cases on the question of venue. I Following the caption is the statement of the citizenship and residence of each party, as follows: "John. Doe, a citizen of the state of , residing in County of said state, alleges, as his bill of complaint against Richard Roe, a citizen of the state of and residing in County, in said state, as follows: If one or both of the parties is a corporation, it must be desig- nated as such. (Sun Printing & Pub. Assn. v. Edwards, 194 U. S. 377, 48 L. Ed. 1027, 24 Sup. Ct. 696.) "Duly organized and existing under the laws of the state of , [desig- nating the state], and with its principal place of business at [city and county] and a citizen of said state." A bill setting forth that plaintiffs were acting "in behalf of such other creditors of and claimants against the defendants or any of them, as may desire relief similar to that prayed for herein and may intervene and become parties thereto," was held to violate the rule in not setting forth the names, citizenship and residence of such parties. (State of Maine Lumber Co. v. King- field Co. (Conn.), 218 Fed. 902.) 695. Jurisdictional Grounds. "A short, plain statement of the facts upon which the court's jurisdiction depends" refers to the grounds of federal jurisdiction which must affirmatively appear and must be accurate and explicit, leaving nothing for inference. (Lownsdale v. Gray's Harbor Boom Co.,. 117 Fed. 983.) If the Jurisdictional ground is diversity of citizenship, the particular state and county of which each party is a citizen must be set forth by name, and it must be alleged that the party is a "citizen," not merely a "resident," or "inhabitant," thereof. (Denny v. Pironi, 141 U. S. 121, 123, 35 L. Ed, 657, 11 Sup. Ct. 966.) 317 THE BILL IN EQUITY. Ch. 26, 696 In these cases, too, the venue "of the action is placed by statute, in the district of the plaintiffs or defendant's residence, and it must therefore be alleged that the suit is brought in the district court of the district of residence. (Miller v. Pennsylvania R. Co., 91 Fed. 298.) It must be remembered that where the jurisdiction depends on diversity of citizenship the test of jurisdiction is citizenship, not residence, or habitation, and nothing short of an allegation of citizenship will suffice. As to allegations of a federal question, see chapter 6. So important is the affirmative showing of these jurisdictional facts in the bill, that no appeal will be entertained unless they plainly appear by the record, even though no objection be raised in the court below. An insufficient averment of jurisdictional facts may, however, be amended. (Johnson v. F. C. Austin Mfg. Co., 76 Fed. 616 ; Carson v. Dunham, 121 U. S. 421, 427, 30 L. Ed. 992, 994, 7 Sup. Ct. 1030.) 696. Statement of Ultimate Facts The Cause of Action. A statement of the cause of action showing the grounds of equi- table relief should be a "short and simple statement of the ulti- mate facts upon which the plaintiff asks relief, omitting any mere statement of evidence." Commenting on this clause the circuit court of appeals (2d Cir.), Crim v. Rice, 232 Fed. 573, says: "The purpose of the rule is manifest, and it is unnecessary to insert in a bill extraneous matter, which cannot afford information either to the court or opposing litigants. In this bill, many allegations are either repetitions or are phrased in language foreign to properly drawn pleadings. Thus we find that a defendant was 'the agent, representative, straw- man, employee, dummy, tool, and operator of the bankrupt defendants'; that defendants were guilty of 'designing, con- triving, and conspiring to swindle, cheat, deceive, hinder, delay, and defraud' creditors; that certain acts were 'de- vices, fences, screens, and cloaks and legal disguises'; that 696, Ch. 26 MANUAL OF FEDERAL PROCEDURE. 318 one of the defendants 'has been an active participant, di- rector, designer, and operator and conspirator'; that certain banks 'have escaped publicity and criticism by the authori- ties for their negligence in lending money.' . . . "If, because of these expressions and the diffuse character of the bill, a motion had been made under Rule 29, for failure to comply with Rule 25, we think the district court would have been justified in granting the motion on that ground." But since a bill in equity is required to state only the ultimate facts, a court should be cautious not- to dismiss a bill for mere lack of fullness of detail in~allegation. It is not expected that the bill should set out the evidence to be adduced. (Clinchneld Coal Corp. v. Steinman (4th Cir.), 217 Fed. 875, 133 C. C. A. 585.) In respect to this clause in the rule, the bill in equity in the federal courts differs little, if any, from the better forms required in the reformed or code procedure. Ultimate facts. The statement of the plaintiff's case must be composed of allegations of fact only, not inferences drawn from facts, or mere conclusions of law. The meaning of the phrase "ultimate facts," as used in the rule, is perhaps best explained by the last clause of the third paragraph of the rule itself, to wit, "omitting any mere statement of evidence." That is to say, ultimate facts are those facts upon which the plaintiff's case directly depends, and which are to be proved by the evidence. A statement of the ultimate facts is a statement of the issues in- volved, not of the evidence available to prove the issues. These ultimate facts should be alleged in positive form, not hypothetieally or by way of recital, although it has been held that if the fact appear by^ necessary implication, the pleading is not defective. (Investor Pub. Co. of Mass. v. Dobinson, 72 Fed. 603.) Allegations on information and belief are also permitted where the facts are peculiarly within the knowledge of the defendant. (Leaven worth v. Pepper, 32 Fed. 718.) Thus a bill may properly allege on information and belief, in the alternative, that defendant had actual knowledge or con- 319 THE BILL IN EQUITY. Ch. 26, GOG structive notice of an essential fact, where the complainant has no means of knowing the facts as to such knowledge or notice. (Brady v. Reliance Motion Picture Corp. (S. D. N. Y.), 232 Fed. 259.) The "short and simple statement of ultimate facts" has long been the end in view in drawing bills in equity, but the statement must not be made so short and simple as to omit essential allega- tions required to make a cause of action. Infringement of patent. Under previous rules it has been held that a bill in a suit for the infringement of a patent must not only contain an allegation of the due issuance of the patent, but also of all the facts upon which the authority to so issue it depends. The new rule is silent as to the necessity of these conditions. The matter is discussed above, 690. Excusing laches. If it appears from the bill that there has been delay in bringing the suit so that the defense of laches might be interposed, it becomes necessary to anticipate the de- fense and excuse the delay. The facts constituting the excuse must be clearly and distinctly alleged, to enable the court to determine whether the suit has been prosecuted with due dili- gence. Fraud. It is also a well-established rule that facts constituting fraud, accident or mistake must be specifically alleged. Charges of fraud and the like must be clearly proved, and the defendant is entitled to be informed by the bill as to the exact nature of the charges. Mere adjectives of fraud cannot supply the proper averments. (Rice v. Wilson (Del.), 225 Fed. 159, 163.) Complete statement. The statement of the plaintiff's case is the most important part of the bill. It must contain all the material allegations upon which the plaintiff relies. It must state the case completely, for the court has no power to grant relief not shown by the statement to be within the issues. 697-698, Ch. 26 MANUAL OF FEDERAL PROCEDURE, 320 697. Proper Parties. "If there are persons other than those named as defendants who appear to be proper parties, the bill should state why they are not made parties, as that they are not within the jurisdiction of the court, or cannot be made parties without ousting the jurisdiction." Proper parties are those whose interest in the subject matter of the litigation may be conveniently settled by making them parties thereto, but whose presence is not absolutely essential to a final determination of the matter. Classification of parties. In Shields v. Barrow, 17 How. 130, 15 L. Ed. 158, parties are classified as: "(1) Formal parties. (2) Persons having an interest in the controversy and who ought to be made parties, in order that the court may act on that rule which requires it to decide upon and finally determine the entire controversy, and do complete justice by adjusting all the rights involved in it. These persons are commonly termed 'necessary parties,' but if their interests are separable from those of the parties before the court, so that the court can proceed to a decree, and do complete and final justice without affecting other persons not before the court, the latter are not indispensable parties. (3) Parties who not only have an interest in the controversy, but an interest of such nature that a final decree cannot be made without either affecting that interest, or leaving the controversy in such a condition that its final determination may be wholly inconsistent with equity and good conscience." (16 Cyc. 190.) It has long been held, and was formerly a part of old Equity Rule 47, and is now expressly provided by Rule 39, that the court may, in its discretion, determine the suit without the presence of proper parties, so that the purpose of the provision of Rule 25, above quoted, is undoubtedly to place clearly before the court the reason, if any, for the nonjoinder of such parties, in order that the court may exercise its discretion with regard thereto. 698. The Prayer of the BiU. "A statement of, and prayer for any special relief pending the suit, or upon final hearing, 321 THE BILL IN EQUITY. Ch. 26, 698 may be stated and sought in alternative forms. If special relief pending the suit be desired, the bill should be verified by the oath of the plaintiff, or someone having knowledge of the facts upon which the relief is asked." The prayer for process is no longer necessary inasmuch as Equity Rule 12 provides that "whenever a bill is filed, the clerk shall issue the process of subpoena thereon, as of course, upon the application of the plaintiff." It would also seem that a general prayer for relief is no longer necessary, although the cautious pleader will undoubtedly con- tinue to incorporate it in his bill, there being no express prohibi- tion of its use, and in view of the fact that a general prayer for relief has been held under former rules sufficient to save the com- plaint from attack by demurrer when the facts were sufficiently alleged, but the pleader had mistaken the special relief to which he was entitled. "Whether relief to be given by the court must be confined to that thus asked does not appear from the rule, nor can we learn from the rule itself whether the scope of a plaintiff's action is to be determined by his prayers." (Bernheiin v. Louisville Property Co. (N. D. Ky.), 221 Fed. 273, 278.) But the general prayer for relief cannot give the power to grant relief other than that shown to be due the plaintiff under the facts alleged, and it is undoubtedly better pleading under the new rules to ask for all the relief desired by appropriate special prayers which, as provided in the rules, may be stated and sought in alternative forms. Commenting on the rule the court said: "It may be unnecessary to pray specifically for relief against infringement to which the facts pleaded would show a right, but it would 4)e safer for the complainant to amend its bill in this respect, though the bill contains a prayer for general relief." (Nikola Tesla Co. v. Marconi Wireless Tel. Co. (S. D. N. Y.), 227 Fed. 903, 905.) This provision, authorizing prayers for relief in alternative forms, while it has never before appeared in the rules has been Mantl 11 698, Ch, 2G MANUAL OF FEDERAL PROCEDURE. 822 held to be permissible in former adjudicated cases. (Jones .v. Missouri-Edison Electric Co., 144 Fed. 765, 75 C. C. A. 631.) In Boyd v. New York & H. R. Co. (S. D. N. Y.), 220 Fed. 174, 178, the judge comments as follows: "There is one criticism of the bill, mentioned in argu- ments and briefs, to which preliminary consideration may be given. It is urged that the bill contains two inconsistent 'causes of action.' It does, in my opinion, show inconsistent prayers for relief, because it demands (1) the utter de- struction of the lease of 1873, as obnoxious to the Sherman Act, and also (2) the preservation of the present status of Harlem stock, which depends wholly upon the very lease sought to be annulled. "But it is not thought that such "inconsistency is either fatal to the bill, or constitutes a serious blemish thereupon; and for two reasons: First, the prayers of a bill are not parts of the cause of action therein set forth; and, second, inconsistent and even contradictory prayers are permitted by Equity Rule 25, which allows relief to 'be stated and sought in alternative forms.' " 'Alternative' means 'mutually exclusive' (Cent. Diet.), and no phrase could more happily describe the prayers of this bill. 'Cause of action' has not been found easy of definition. But Professor Pomeroy's effort, that it is 'com- posed of the right of the plaintiff and the obligation, duty or wrong of the defendant; and these combined, it is suffi- ciently accurate to say, constitute a cause of action,' has been adopted in Veeder v. Baker, 83 N. Y. 156, at page 160; while the shorter statement of Durham v. Spence, L. R. 6 Ex. 46, that it 'is that which produces the necessity for bringing an action' has been approvingly quoted in Shelby 'Steel Tube Co. v. Burgess Gun Co., 8 App. Div. 444, at page 448, 40 N. Y. Supp. 871, at page 873. "In the light of these definitions, I find, in plaintiff's 'statement of the ultimate facts upon which' they ask relief, only one cause of action; for their right is single, viz., to preserve their property, the duty of the defendants is to co- operate in such preservation; and the wrong alleged is a threatened trespass upon that right. 323 . THE BILL IN EQUITY. Ch. 26, 699-700 "The prayers are but the opinions of the plaintiffs as to the proper method of redress, and inconsistency there is harm- less. The court must select that method which is appropriate and lawful, and such procedure as is illustrated by this motion will produce a selection with the minimum expenditure of time and expense." 699. Signing the Bill. Equity Ride 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 in- serted in the pleading and is not interposed for delay." (3 U. S. Comp. Stats. 1916, 1536, p. 2503; Foster's Federal Practice, 5th ed., pp. 561, 683, 713, 753, 772; Simkins' Fed- eral Equity Suit, 3d ed., pp. 134, 286, 349, 401, 425.) The purpose of the rule is to insure good faith. It does not in any respect vary the relation of counsel and client. It does not make counsel who signs the bill a counsel of record, who cannot be changed except on terms, as in the case with the solicitor of rec- ord, nor entitle him to a lien on the decree for his services. His remedy is at law. (Goodwin Film & Camera Co. v. Eastman Kodak Co. (2d Cir.), 222 Fed. 249, 251, 138 C. C. A. 71.) 700. Verifying the Bill. The bill need not be sworn to by the plaintiff, unless it is a stockholder's bill under Rule 27 or un- less some special relief such as an injunction or writ of ne exeat be desired, pending the suit, in which event it must be verified as required by Rule 25 quoted above. The bill then becomes inHie nature of an affidavit, upon which proceedings for the issuance of the writs granted may be based. If the bill is required to be verified, it is provided : Equity Rule 36. "Every pleading which is required to be sworn to by statute or these rules may be verified before any justice or judge of any court of the United States or of 700, Ch. 26 MANUAL OP FEDERAL PROCEDURE. 324 any state or territory, or of the District of Columbia, or any clerk of any court of the United States, or of any territory, or of the District of Columbia, or any notary public." (3 U. S. Comp. Stats. 1916, 1536, p. 2512; Simkins' Fed- eral Equity Suit, 3d ed., p. 425.) An affirmation in lieu of oath may be used. Equity Rule 78. "Whenever under these rules an oath is or may be required to be taken, the party may, if conscien- tiously scrupulous of taking an oath, in lieu thereof, make solemn affirmation to the truth of the facts stated by him." (3 U. S. Comp. Stats. 1916, 1536, p. 2529; Simkins' Federal Equity Suit, 3d ed., p. 425.) See, also, 359 above as to administration of oaths. 325 PABTIES. Ch. 27, 710 CHAPTER 27. PARTIES. SEO. 710. Real Party in Interest; Necessary Parties; Intervention Rule 37. 711. Delect of Parties may Cause Dismissal on Court's Own Motion. 712. Real Party in Interest Capacity of Plaintiff to Sue. 713. Persons Having an Interest may Join as Plaintiffs. 714. Party Refusing to Join as Plaintiff may be Made a Defendant. 715. Class Suits Kule 38. 716. Common Interest a Material Issue. 717. Representatives of a Class. 718. Where Parties have a Eepresentative Others may not Sue Unless Rep- resentative Kefuses to Act. 719. Absence of Persons Who Would be Proper Parties Rule 39. 720. Absence of Parties Illustrations. 721. Nominal Parties Rule 40. 722. Heir as Party Suit to Execute Trusts of Will Rule 41. 723. Joint and Several Demands Rule 42. 724. Saving Rights of Absent Parties Where Defendant Makes Tardy Objection Rule 44. 710. Real Party in Interest; Necessary Parties; Intervention. Equity Rule 37. "Every action shall be prosecuted in the name of the real party in interest, but an executor, adminis- trator, guardian, trustee of an express trust, a party with whom or in whose name a contract has been made for the ben- efit of another, or a party expressly authorized by statute, may sue in his own name without joining with him the party for whose benefit the action is brought. All persons having an interest in the subject of the action and in obtaining the relief demanded may join as plaintiffs, and any person may be made a 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 necessary or proper to a complete determina- tion of the cause. Persons 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. 711-712, Ch. 27 MANUAL OP FEDERAL PROCEDURE. 326 "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." (3 U. S. Comp. Stats. 1916, 1536, p. 2512; Foster's Federal Practice, 5th ed., p. 404, .110, p. 415, 113, p. 821, 258; Simkins' Federal Equity Suit, 3d ed., pp. 225, 229, 252.) 711. Defect of Parties may Cause Dismissal on Court's Own Motion. In American Ball Bearing Co. v. Adams (N. D. Ohio), 222 Fed. 976, 979, it was contended that the question as to the capacity of the plaintiff to maintain the suit could not be raised and decided by the court, because it was not made by the plead- ings in the case. The court said: "It is enough to say that this is a suit in equity to which both section 37 of the Judicial Code (quoted above 215), and rule 37 (quoted above 710), of the new equity rules of 1912 are applicable, and that under the au- thority of these, as well as under the general authority of a court to prevent imposition, I have no doubt that it is within the power, and that it is the duty of this court when it believes, as I be- lieve in this case, that a plaintiff is without legal capacity to maintain a suit before it to proceed no further therein, but to dismiss the case. I cannot assent to the conclusion that a court is so bound by rules of practice that it must enter a judgment in favor of or against a corporate name which it believes has no right in court, either as a corporation de jure or de facto, simply because the parties to the cause may not have made the validity of the corporate powers of the plaintiff an issue by their plead- ings." 712. Real Party in Interest Capacity of Plaintiff to Sue. Rule 37, quoted above 710, raises no question of legal capacity to sue but is direct-ed to the ground of federal jurisdiction. In Kardo Co. v. Adams (6th Cir.), 231 Fed. 950, 958, 146 C. C. A. 146, the court said: "While that part of equity rule 37 taking effect February 1, 1913, providing that 'every action shall be prosecuted in 327 PARTIES. Ch. 27, 713-715 the name of the real party in interest,' is not found in any previous equity rules made by the Supreme Court for the guidance of courts in equity cases, yet it is but the declaration of a rule in equity in the courts of the United States, which by statute of Ohio and generally in the states which have adopted a code of civil procedure prevails, and which, in cases at law, the courts of the United States follow. It is clear, therefore, that when the nature of the suit is such as to show that it really and substantially involves a controversy within the capacity of the court to determine and grant the relief asked, and no question of citizenship, upon which jurisdiction is based, exists, the case presents no peculiar feature imposing on a court of the United States the duty, on its own motion, without pleadings, of inquiring into the question of the capacity of the plaintiff to sue." 713. Persons Having an Interest may Join as Plaintiffs. The interest referred to in Rule 37, quoted above 710, is an in- terest in law. Therefore, an assignee of a copyrighted drama, where moving-picture rights are reserved by the author is not a proper party to an infringement suit against producing a motion- picture play. (Tully v. Triangle Film Corp., 229 Fed. 297.) 714. Party Refusing to Join as Plaintiff may be Made a Defendant. Thus in a suit by trustees of an insolvent to recover assets, where one of the trustees refuses to join as a complainant, he may be made a defendant. His citizenship in such a case is considered as of a plaintiff, so that the fact of his being joined as defendant with a citizen of the same state does not deprive the court of jurisdiction. (Georgia S. & F. Ry. v. Einstein (5th Cir.), 218 Fed. 55, 133 C. C. A. 657.) 715. Class Suits Rule 38. Equity Rule 38. "When the question is one of common or general interest to many persons constituting a class so numer- ous as to make it impracticable to bring them all before the court, one or more may sue or defend for the whole." (3 U. S. Comp. Stats. 191 G, 1536, p. 2513; Foster's Federal Practice, 5th ed.. 114, p. 423; Simkins' Federal Equity Suit, 3d ed., pp. 228, 237, 238, 239.) 716-717, Ch. 27 MANUAL OP FEDERAL PROCEDURE. 328 716. Common Interest a Material Issue. Under rule 38, quoted above 715, when the allegation of a general or common interest to many persons is denied, the duty devolves on the court to determine whether the common or general interest exists be- fore decreeing against those who are alleged to be in court by representation. A suit against the members of a local labor union would not bring in the general officers of the union unless participants with those served. (Hill v. Eagle Glass & Mfg. Co. (4th Cir.), 219 Fed. 719, 135 C. C. A. 417. See, also, I/ittle v. Tanner, 208 Fed. 605; In re Englehard & Sons Co., 231 U. S. 646, 58 L. Ed. 416, 34 Sup. Ct. 258.) A suit by an alien to restrain the enforcement of a state law requiring employers to employ eighty per cent qualified voters or native-born citizens (Arizona, Nov. 3, 1914), was not an action in which plaintiff could sue on behalf of all others similarly situated. (Raich v. Truax (Ariz.), 219 Fed. 273, and cases cited.) 717. Representatives of a Class. "Where an order of the Interstate Commerce Commission authorized, and a tariff filed thereunder provided, higher rates to four certain cities than to certain other cities, one of such cities, representing the interest of its citizens, and traffic associations formed for the purpose of representing jobbers and merchants in the three other cities, could maintain a suit to enjoin the enforcement of such order and tariff, as they were within the rule that bills may be filed in the name of unincorporated associations and parties in behalf of others similarly situated, and moreover the equity rules seem to contemplate such a suit for the common benefit of all, where the parties are numerous and have a common or general interest. (Merchants' & Manuf. Traffic Assn. v. United States (N. D. Cal.), 231 Fed. 292. A class suit. Helm v. Zarecor (M. D. Tenn.), 213 Fed. 648.) A corporation representing its stockholders for whom it has made a contract is a proper party to sue. (Magruder v. Belle 329 PARTIES. Ch. 27, 718-719 Fourdie Valley Water Users Assn. (8th Cir.), 219 Fed. 72, 133 C. C. A. 524.) 718. Where Parties have a Representative Others may not Sue Unless Representative Refuses to Act. Holders of mortgage bonds of a railroad company cannot maintain a suit to enjoin the enforcement of a state statute fixing rates unless it is shown that the mortgage trustee, representing all the bondholders, has refused to bring the suit. The case is not within federal equity rule 38, for here the mortgage trustee is normally the official representative of the bondholders. The trustees under the consolidated mortgage being properly before the court, it is immaterial whether the individual holders of bonds secured by that mortgage are prop- erly joined with the trustee as parties plaintiff. (Winthrop v. Fellows (Mich.), 230 Fed. 702, 705.) 719. Absence of Persons Who Would be Proper Parties. Equity Rule 39. "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 other- wise 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." (3 U. S. Comp. Stats. 1916, 1536, p. 2513; Foster's Federal Practice, 5th ed., 117, p. 431; Simkins' Federal Equity Suit, 3d ed., pp. 225, 227, 231.) It is the usual rule in the federal courts that, if a case may be finally decided between the parties litigant without bringing others before the court who would, generally speaking, be neces- sary parties, such parties may be dispensed with if they are citizens of another state. But, if parties not before the court have rights so closely related to the issues between the parties in court that a final decision cannot be made between them with- 720, Ch. 27 MANUAL OP FEDERAL PROCEDURE. 330 out affecting the rights of those not before the court, the court may not dispense with such persons. (Ex parte Equitable Trust Co., 231 Fed. 571, 145 C. C. A. 457.) 720. Absence of Parties Illustrations. Under 50, Jud. Code, and Rule 39 (quoted 719, above) a federal court has jurisdiction of a suit by a packer to require inspectors to inspect and pass a product where the chief inspector in charge at the place of suit is before the court, although department heads, who are made parties, cannot be served. (St. Louis Independent Packing Co. v. Houston (8th Cir.), 215 Fed. 553, 132 C. C. A. 65.) In a recent case (Lowenthal v. Georgia Coast & P. B. Co., 233 Fed. 1010, at page 1015), the court holding that a trustee was not an indispensable party said: "The contention that the bill must be dismissed because the trustee is not made a party defendant is equally unfounded. The trustee is a corporation and a citizen of New York. It is not found in this district, and does not voluntarily appear. But the railway property is here, and to this the lien and mortgage securing plaintiff's bonds inheres. Here, also, is the defendant corporation a corporation of this state. "In such cases, the court may entertain jurisdiction and proceed to the trial and adjudication of the suit between the parties who are properly before it, but the judgment and de- cree rendered therein shall not conclude or prejudice other parties not legally served with process, nor voluntarily appear- ing to answer. A nonjoinder of parties who are not in- habitants of nor found in the district as aforesaid shall not constitute matter of abatement or objection to the suit. Jud. Code, 50. "The rule in equity No. 39 [quoted 719, above] , also nega- tives the contention. It provides that in all cases where it shall appear to the court that persons that might otherwise be deemed proper parties to the suit cannot be made parties by reason of their being without the jurisdiction of the court, or incapable otherwise of their being made parties, or because this joinder would oust the jurisdiction of the court as to parties before it. The court may in its discretion proceed in the cause, without making such persons parties, and in such 331 PARTIES. Ch. 27, 721 cases the decree shall be without prejudice to the rights of the absent parties. Thus Congress has taken action to remove the obstacle in the way of the plaintiff and the court which this motion to dismiss seeks to introduce. "Obviously, to join the trustee as a party, as a citizen of another state, at this time, when it cannot be served, would be to hazard the jurisdiction of the court, to grant the pre- liminary relief now sought. While the trustee may be a proper party, and may be heard as to any right it may set up, it is clearly not an indispensable party to this application." Where a contract was made by the corporation on behalf of subsidiary corporations of which it owns all the stock and takes all the profits earned, such subsidiary corporations are not neces- sary parties in a stockholders' suit to set the contract aside. (Ross v. Quinnesec Iron Mining Co. (6th Cir.), 227 Fed; 337, 142 C. C. A. 33.) In suit (Grigsby v. Miller (Or.), 231 Fed. 521) by a deceased wife's administrator to set aside a deed given by her and her husband, the husband, though a proper and necessary, was held not an "indispensable, party," one so necessary that a decree without his presence would prejudice his rights and leave the case contrary to equity and good conscience, a party whose in-. terest in the subject matter of the suit and the relief sought is so bound up with that of other parties that his legal presence as a party is an absolute necessity to the court's right to pro- ceed, since, though the husband has an inchoate interest in the cause, in that, if plaintiff succeeded, he would be benefited by the litigation to the extent of having his title to the property potentially established, subject to the right of the adminis- trator to subject it to the payment of the wife's debts, plaintiff as administrator could proceed without such husband as a party and obtain all the relief to which he was entitled, without affect- ing the husband's interests or rights. 721. Nominal Parties. Equity Rule 40. "Where no account, payment, convey- ance, or other direct relief is sought against a party to a suit, not being an infant, the party, upon service of the subpoena 722-724, Ch. 27 MANUAL OF FEDERAL PROCEDURE. 332 upon him, need not appear and answer 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 does not appear and answer he shall be bound by all the proceedings in the cause. If the plaintiff shall require him to appear and answer he shall be entitled to the costs of all the pro- ceedings against him unless the court shall otherwise direct." (3 U. S. Comp. Stats. 1916, 1536, p. 2514; Foster's Federal Practice, 5th ed., 154, p. 561, 409, p. 1284; Simkins' Federal Equity Suit, 3d ed., p. 239.) .722. Heir as Party Suit to Execute Trusts of Will. Equity Rule 41. "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 if he desires to have the will established against him." (3 U. S. Comp. Stats. 1916, 1536, p. 2514; Foster's Federal Practice, 5th ed., 119, p. 435; Simkins' Federal Equity Suit, 3d ed., pp. 229, 254.) 723. Joint and Several Demands. Equity Rule 42. "In all cases in which the plaintiff has a joint and several demand against several persons, either as principals or sureties, it shall not be necessary to bring before the court as parties to a suit concerning such demand all the persons liable thereto; but the plaintiff may proceed against one or more of the persons severally liable." (3 U. S. Comp. Stats. 1916, 1536, p. 2515; Foster's Federal Practice, 5th ed., 112, p. 414; Simkins' Federal Equity Suit, 3d ed., pp. 229, 240.) 724. Saving Rights of Absent Parties Where Defendant Makes Tardy Objection. Equity Rule 44. "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 objec- tion applies, the court shall be at liberty to make a decree saving the rights of the absent parties." (3 U. S. Comp. State. 1916, 1536, p. 2515; Foster's Federal Practice, 5th ed., 129, p. 456; Simkins' Federal Equity Suit, 3d ed., pp. 263, 427.) 333 INTERVENTION. Ch. 28, 730-731 CHAPTER 28. INTERVENTION. SEO. 730. Intervention Last Part Rule 37. 731. Intervention Does not Lie for Unliquidated Demands. 732. Citizenship of Intervener and Amount of Claim not Material to Juris- diction. 733. Procedure. 730. Intervention Last Part Rule 37. Last Part Equity Rule 37. "... Anyone claiming an in- terest 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." (710 above; Atlas Underwear Co. v. Cooper Underwear Co., 210 Fed. 348 ; Hutchinson v. Phila- delphia & G. S. S. Co., 216 Fed. 795.) 731. Intervention Does not Lie for Unliquidated Demands. In Glass v. Woodman (8th Cir.), 223 Fed. 621, 139 C. C. A. 167, the court held that the right of intervention does not necessarily follow from the absence of other remedy; but an intervener should have some interest in or claim to the demand in suit, or some connection with, interest in, or lien upon the subject mat- ter of the litigation. The court also held that one having an unliquidated demand against the complainants in a foreclosure suit in a federal court, who are nonresident aliens, is not, be- cause of such fact, entitled 'to intervene in the suit for the pur- pose of litigating his claim and enforcing the same against the interest of complainants therein. The court in the case last above cited called attention to the two kinds of cases of intervention, stating page 623 as follows: "Some cases are so circumstanced that intervention is an absolute right; others rest in the discretion of the trial court, whose action will not be reviewed on appeal. (Credits Com- mutation Co. v. United States, 91 Fed. 570, 34 C. C. A. 12; Id., 177 U. S. 311, 44 L. Ed. 782, 20 Sup. Ct. 636.)" 732-733, Ch. 28 MANUAL OF FEDERAL PROCEDURE. 334 732. Citizenship of Intervener and Amount of Claim not Material to Jurisdiction. Intervention being in its nature auxiliary, the citizenship of the intervener is not material where the federal court has jurisdiction of the original suit and has in its possession the property or fund in which the intervener claims an interest. (Compton v. Jesup, 68 Fed. 279, 15 C. C. A. 397.) Citizenship is material when the federal court does not have possession of the property or fund in which the intervener claims an interest. (United Electric Securities Co. v. Louisiana Elect. Light Co., 68 Fed. 673.) Intervention will lie regardless of citizenship where the inter- vener claims an interest in attached property. (Gumbel v. Pit- kin, 124 U. S. 132, 31 L. Ed. 374, 8 Sup. Ct. 379.) The amount or value of the intervener 's claim is also not material where the federal court has jurisdiction of the main suit. (People's Saving Inst. v. Miles, 76 Fed. 252, 22 C. C. A. 152.) 733. Procedure. The procedure consists of filing an appli- cation and obtaining an order. As to contents of the petition, see Empire Distilling Co. v. McNulta, 77 Fed. 701, 23 C. C. A. 415, 46 U. S. App. 578. As to amendments, see Anthony v. Campbell, 112 Fed. 212, 50 C. C. A. 195. The better practice is to give notice. (Central Trust Co. v. Madden, 70 Fed. 453, 17 C. C. A. 236.) The petition may be contested by any parties to the suit. (Powell v. Leicester Mills, 92 Fed. 115.) An order is made allowing the application, unless waived by filing an answer to the intervention. (Illinois Steel Co. v. Ram- sey, 176 Fed. 853, 864, 100 C. C. A. 323.) The order being granted, the applicant is a party to the suit in all subsequent proceedings giving the right of appeal. (Mer- cantile Trust & D. Co. v. Roanoke & S. R. Co., 109 Fed. 3, 8.) 335 STOCKHOLDERS' BILL. Ch. 29, 740-741 CHAPTER 29. STOCKHOLDERS' BILL. SEO. 740. The Equity Rule No. 27. 741. Stockholders' Bill Old and New Rules Compared. 742. Same Purposes of the Rule. 743. Allegation as to "Reason for not Making Such Effort." 744. Where Statutory Receiver has Been Appointed. 740. The Equity Rule No. 27. Equity Rule 27. "Every bill brought by one or more stockholders in a corporation against the corporation 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 cognizance. It must also set forth with particularity the efforts of the plaintiff to secure such action as he desires on the part of the managing directors or trustees, and if neces- sary, of the shareholders, and the causes of his failure to obtain such action, or the reason for not making such effort." (3 U. S. Comp. Stats. 1916, 1536, p. 2505; Foster's Federal Practice, 5th ed., pp. 515, 521, 562, 849; Simkins' Federal Equity Suit, 3d ed., pp. 240, 243, 287, 425.) This "verification by oath" is a requirement peculiar to this class of bills only, unless special relief pending suit be desired, as discussed under 698, above. 741. Stockholders' Bill Old and New Rules Compared. The rule is a re-embodiment of old Rule 94, promulgated in 1882, the language being identical, with the exception of the last phrase, "or the reason for not making such effort," which is new. 741, Ch. 29 MANUAL OP FEDERAL PROCEDURE. 336 An examination of the decisions construing former Rule 94 makes clear the reasons for the addition of the phrase, it having been held that if the circumstances are such that it is apparent that efforts on the part of the plaintiff to secure such action as he desires by the directors or trustees or by the other share- holders of the corporation would be useless, then such efforts are unnecessary. But the circumstances manifesting the use- lessness of such efforts must be clearly alleged. (Doctor v. Har- rington, 196 U. S. 579, 49 L. Ed. 606, 25 Sup. Ct. 355 ; Delaware & EL Co. v. Albany & S. B. Co., 213 U. S. 435, 53 L. Ed. 862, 29 Sup. Ct. 540.) Old Rule 94 expresses primarily the conditions which must precede the exercise of the right of a stockholder to protect the corporation, but emergencies may arise in which the antagonism between the directory and the corporate interests may be unmis- takable and the requirements of the rule may be dispensed with, or, it is more accurate to say, do not apply. (Delaware & H. Co. v. Albany & S. R. Co., 213 U. S. 435, 53 L. Ed. 862, 29 Sup. Ct. 540; Hyams v. Calumet & Hecla Mining Co. (6th Cir.), 221 Fed. 529, 137 C. C. A. 239; Granite Brick Co. v. Titus (4th Cir.), 226 Fed. 557, 141 C. C. A. 313; Dana v. Morgan (S. D. N. Y.)> 219 Fed. 313.) Thus an allegation that the defendants who made the con- tract and benefit by it are in absolute control of the affairs of the. corporation is sufficient to excuse efforts to secure action by the officers. (Ross v. Quinnesec Iron Mining Co. (6th Cir.), 227 Fed. 337, 142 C. C. A. 33.) So where a stockholder sues on behalf of the corporation to set aside an alleged fraudulent contract made by it, formal re- quest of the corporation to sue may be excused where the circum- stances show that it would have been futile. (Dana v. Morgan (S. D. N. Y.), 219 Fed. 313.) Where the allegations in a petition for leave to intervene in bankruptcy proceedings of stockholders of the defendant cor- poration, and the proposed answer made a part thereof showed that an adjudication in bankruptcy was not being opposed by 337 STOCKHOLDERS' BILL. Ch. 29, 742 the directors, so that they might acquire the property at less than its value, Equity Rule 27, requiring that the stockholder of a corporation, seeking to bring a stockholder's action, must have endeavored to secure such action as he desires on the part of the directors, will be dispensed with, as is the case where the pleadings show that the interests of the directors are antag- onistic to those of the corporation. (Ogden v. Gilt Edge Consol. Mines Co. (8th Cir.), 225 Fed. 723, 140 C. C. A. 597.) By the addition of the alternative phrases, Eule 27 is made broad enough to cover all cases in which a stockholder may bring a suit "founded on rights which may properly be asserted by the corporation," and conforms to the law as declared by the cases above cited, recognizing that there may be reasons which excuse the efforts of the plaintiff to secure action by the directors or stockholders. A full and unequivocal compliance with the requirements of the rule is necessary. (Ziegler v. Lake Street El. R. Co., 76 Fed. 662, 22 C. C. A. 465.) The absence of either of the required allegations constitutes ground for a motion to dismiss the bill. (Illinois Central R. R. Co. v. Adams, 180 U. S. 28, 45 L. Ed. 410, 21 Sup. Ct. 251; Equity Rule 29; Veuner v. Great Northern Ry. Co., 153 Fed. 408.) 742. Same Purposes of the Rule. The purposes of the rule are obvious, to wit: 1. It is intended to preclude persons from buying stock in corporation for the purpose of extortion by litigation; hence the requirement of the allegation that the plaintiff was a share- holder at the time of the transaction of which he complains, or that his share had devolved on him since by operation of law. (Robinson v. West Virginia Loan Co., 90 Fed. 770, 772; Dimpfel v. Ohio & M. Ry. Co., 110 U. S. 209, 28 L. Ed. 121, 3 Sup. Ct. 573.) 2. The purpose of the clause requiring it to be alleged "that the suit is not a collusive one, to confer on a court of the United States jurisdiction of a cause of which it would not otherwise Manual 22 743, Ch. 29 MANUAL OF FEDERAL PROCEDURE. 338 have cognizance," is "to secure the federal court from imposition upon the jurisdiction." (Delaware &.H. Co. v. Albany & S. R. Co., 213 U. S. 435, 53 L. Ed. 862, 29 Sup. Ct. 540 ; Young v. Alham- bra Min. Co., 71 Fed. 810.) The rule was intended only to exclude cases brought by a stockholder collusively in order to give apparent jurisdiction to a court which would not have it if the suit were by the corpora- tion. (Delaware & H. R. Co. v. Albany & S. R. Co., 213 U. S. 435, 53 L. Ed. 862, 29 Sup. Ct. 540.) 3. The remainder of the rule, requiring that the bill ' ' set forth with particularity the efforts of the plaintiff to secure such action as he desires, on the part of the managing directors or trustees, and if necessary, of the shareholders, and the causes of his failure to obtain such action or the reason for not making such effort," recognizes the right of the corporate directory to corporate control, making the corporation paramount even when its rights are to be protected or sought through litigation. (Kelly v. Dolan (E. D. Pa.), 218 Fed. 966.) 743. Allegation as to "Reason for not Making Such Effort." The court, in Russell v. Shippen Bros. Lumber Co. (N. D. Ga.), 224 Fed. 254, 256, says : "In the original bill there was a paragraph in the following language : " 'Your orators are further informed, and on information and belief allege, that the chief executive officer of the said lumber company is among said claimants, and avers an indebt- edness against said company in a large amount, which indebt- edness is not admitted by your orators ; and your orators aver that the validity of said indebtedness so claimed should be carefully investigated before the same is paid by said lumber company, and that there are equitable rights in favor of said lumber company against said chief executive which should be asserted in favor of said' company by one whose interest does not conflict with his duties.' "This is clearly defective in pleading what it was evidently intended for in compliance with new rule No. 27, quoted. 339 STOCKHOLDERS' BILL. Ch. 29, 744 "This last language, 'or the reasons for not making such effort,' was added to old equity rule 94, and is now a part of the same rule, known in the new rules as No. 27, as stated. "The supplemental bill, after stating that William H. Shippen sets up claim against the Shippcn Bros. Lumber Com- pany for over $50,000, proceeds in this language : " 'Your orators further aver that it would be useless to make demand upon said William H. Shippen to file suit against himself, and that your orators have made demand upon the Shippen Bros. Lumber Company, one of the defendants herein, and upon its officers and directors, that defendant institute suit against the said William H. Shippen and Frank E. Ship- pen for the purpose of enjoining and restraining them and their agents from acting as officers and directors of the said lumber company, and for the purpose of restraining them from diverting the assets of the said company, and restraining them from asserting any rights and liabilities which they or either of them claim against said Shippen Bros. Lumber Company on any account whatsoever, and especially upon a certain alleged note of said Shippen Bros. Lumber Company claimed to be held and owned by the said William H. Shippen, and that for reasons unknown to your orators this demand has been refused. This suit is not filed for the purpose of col- lusively giving jurisdiction to this honorable court of a cause of which it has not jurisdiction.' ' ' This allegation seems to be sufficient, under rule 27. ... "Considered as a stockholders' proceeding against the Ship- pen Bros. Lumber Company originally, as I have stated, I think what was alleged in the original bill in compliance with equity rule 27, though defective, was cured by this supple- mental bill and by the allegations therein made. . . . ' ' The motion to dismiss will be overruled and denied. ' ' 744. Where Statutory Receiver has Been Appointed. Where a corporation is stripped of its assets by act of its directors, the right of action is not only primarily, but until it has passed to others is always, in the corporation, and the recovery is for its benefit; it being necessarily a party. And where a corporation is injured by the acts of its directors, it in general may sue or withhold the right to sue, and the action, when brought, must be brought by it and in its name. 744, Ch. 29 MANUAL OF FEDERAL PROCEDURE. 340 But where a corporation is injured by being deprived of its assets by directors, and on demand of a stockholder fraudulently refused to sue, the stockholder may maintain a bill for its benefit. Where a statutory receiver has been appointed for a corpora- tion, neither the corporation nor a stockholder can maintain an action for alleged loss of the corporation's assets without the sanction of the court appointing the receiver, but with such sanction a suit for the corporation's benefit may be brought in a foreign jurisdiction in which defendants can be served. Where a statutory receiver has been appointed for a corpora- tion, a stockholder, with the consent of the court appointing the receiver, may sue in equity, for the benefit of the corporation and its receiver, to redress, in a foreign jurisdiction, an injury to the corporation. (Kelly v. Dolan (E. D. Pa.), 218 Fed. 966.") 341 JOINDER OF CAUSES OF ACTION. Ch. 30, 700-751 CHAPTER 30. JOINDER OF CAUSES OF ACTION. SEO. 750. The Equity Bule No. 26. 751. Eule Available to Both Parties Alike. 752. Examples of Joinder. 753. Causes of Action must be Within Court's Jurisdiction to be Joined. 750. The Equity Rule No. 26. Equity Rule 26. "The plaintiff may join in one bill as many causes of action, cognizable in equity, as he may have against the defendant. But when there is more than one plaintiff, the causes of action 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 together, the court may order separate trials." (3 U. S. Comp. Stats. 1916, 1536, p. 2505.) This is a new rule. 751. Rule Available to Both Parties Alike. Rule 26 (also a new rule) authorizes the plaintiff to "join in one bill as many causes of action cognizable in equity as he may have against the defendant," and a proper construction of Rule 30 gives the defendant the same option ; thus both parties are, in the matter of joining causes of action, placed on an equal footing. In the case of the plaintiff so joining, the court, by express authority con- tained in the concluding sentence of Rule 26, is given discretion to order separate trials if it appears that such "causes cannot be conveniently disposed of together." In case the joinder is the result of the defendant's action, the court has a like dis- cretion. Rule 30 declares that such counterclaim "shall have the same effect as a cross-suit," and by analogy, if not by neces- 752-753, Ch. 30 MANUAL OF FEDERAL PROCEDURE. 342 sary implication, the defendant in such cross-suit is to be treated as a plaintiff, and the joinder of different causes of action by him in one suit is subject to the court's power of ordering sepa- rate trials if they "cannot be conveniently disposed of together." (Electric Boat Co. v. Lake Torpedo Boat Co. (D. N. J.), 215 Fed. 377, at p. 381.) 752. Examples of Joinder. Where diverse citizenship exists between the parties and the requisite amount is involved to give a federal court jurisdiction, a cause of action for infringement of a trademark and one for unfair competition may be joined in one suit. (Samson Cordage Works v. Puritan Cordage Mills (6th Cir.), 211 Fed. 603, L. R. A. 1915F, 1107, 128 C. C. A. 203.) As to joinder of causes of action under copyright act, see L. A. Westermann Co. v. Dispatch Printing Co. (6th Cir.), 233 Fed. 609, 61*, 147 C. C. A. 417. A bill for the foreclosure of two mortgages is not multifarious, but within Equity Rule 26 above quoted, permitting the joinder of causes of action when it will promote the convenient admin- istration of justice. (Crawford v. Washington Northern E. Co., 233 Fed. 961, 966, 147 C. C. A. 635.) 753. Causes of Action must be Within Court's Jurisdiction to be Joined. Under Equity Rule 26, authorizing a joinder of causes of action, a suit of which a federal court has jurisdiction because of the nature of the cause of action cannot be used as a means for bringing within its jurisdiction a different cause of action between the same parties, over which the court would have jurisdiction only on the ground of diversity of citizenship which does not exist. (Vose v. Roebuck Weatherstrip & Wire Screen Co., 210 Fed. 687.) Thus in Unit Const. Co. v. Huskey Mfg. Co., 241 Fed. 129, it was held that a federal court is not given jurisdiction of a suit for unfair competition between citizens of the same state by the fact that it is joined with a cause of action for infringement of a patent, nor because the unfair competition charged is con 343 JOINDER OF CAUSES OF ACTION. Ch. 30, 753 nected with the sale of the alleged infringing articles. (Equity 'Rule 26 does not apply.) Patent infringement and unfair competition in trade are sepa- rate causes of action, distinct in their nature. Patent infringe- ment is the violation of an exclusive monopoly created by statute, while no element of monopoly is im olved in unfair competition. 7 GO, Ch. 31 MANUAL OF FEDERAL PROCEDUEE. 344 CHAPTER 31. AMENDMENTS. SEC. 760. Amendments Kules 28 and 19. 761. Amendments to Cure a Variance. 762. Amendment Where Plaintiff Fails to Set Down for Argument Objec- tion in Answer for Defect of Parties Rule 43. 763. Amendment on Death of Party Rule 45. 760. Amendments Rules 28 and 19. As of course. Equity Rule 28. "The plaintiff may, as of course, amend his bill before the defendant has responded thereto, but if such amendment be filed after any copy has issued from the clerk's office, the plaintiff at his own cost shall furnish to the solicitor of record of each opposing party a copy of the bill as amended, unless otherwise ordered by the court or judge." (3 U. S. Comp. Stats. 1916, 1536, p. 2507; Foster's Federal Practice, 5th ed., p. 716; Simkins' Federal Equity Suit, 3d ed., pp. 354, 355, 362, 363.) Under former rule the plaintiff was permitted, unless the amendments were numerous, to furnish copies of the amendments only, with suitable references as to their proper places of in- sertion. Not as of course. If the plaintiff fails to amend before the defendant files his pleading in response to the bill, -his right to do so as of course is gone, and he must then obtain the consent of the defendants or leave of court or of the judge before his amendment can be effective under Rule 28. Equity Rule 19. "The court may at any time, in further- ance of justice, upon such terms "as may be just, permit any process, proceeding, pleading or record to be amended, or material supplemental matter to be set forth in an amended 345 AMENDMENTS. Ch. 31, 760 or supplemental pleading. The court, at every stage of the proceeding, must disregard any error or defect in the proceed- ing which does not affect the substantial rights of the parties." (3.U. S. Coinp. Stats. 1916, 1536, p. 2502; Foster's Federal Practice, 5th ed., p. 716; Simkins' Federal Equity Suit, 3d ed., pp. 201, 286, 321, 354, 586, 729.) Any error or defect in the bill which does not affect the sub- stantial right of party will be disregarded by the court even in the absence of an offer to amend. These rules, 19 and 28, covering the subject of amendments to the bill, supplant former Equity Rules 28, 29, 30, 45 and 46, and their apparent effect is to greatly broaden the power of the courts in permitting amendments at any or all stages of the pro- ceeding. An examination of the decisions on this point under the former rule, however, discloses the fact that the courts have always con- sidered that the power of a court of equity to grant amendments is wholly discretionary, and that in furtherance of justice they will not consider themselves hampered by the particular rules in court. The federal courts have always been guided in this regard by the circumstances of the particular case, and Equity Rules 19 and 28, seemingly more liberal than their predecessors, are in reality little more than the embodiment of the law as it has long been construed by the court. In a case decided since the above text was written the court said: "The allowance or refusal of amendments is a matter which is largely within the sound discretion of a trial court, and in the absence of a clear abuse thereof its action is not review- able on appeal. We cannot say that the court grossly abused its discretion in refusing to allow the bill to be amended. The fact that we might have permitted the bill to be amended, if we had been in the trial court's place, would not justify us in interfering with the exercise of that court's discretion, unless we were satisfied that its discretion had been grossly abused." (Williams v. Cobb (2d Cir.), 219 Fed. 663, at p. 669, 134 C. C. A. 217.) f 761, Ch. 31 MANUAL OF FEDERAL PROCEDURE. 346 761. Amendments to Cure a Variance. It was held to be stating a new cause of action against which the statute of limi- tations had run to change a complaint for damages because of alleged incompetency of a fellow-servant known to the employer and not known to the plaintiff, where there was failure to allege negligence, to a complaint charging that plaintiff was injured through the negligent act of a fellow-servant and that a statute of Kansas, within which the injury occurred, made the railroad company liable for the negligent act of a fellow-employee, re- gardless of his incompetency and of knowledge thereof. This would be a departure from law to law. (Union Pac. Ry. Co. v. Wyler, 158 U. S. 285, 39 L. Ed. 983, 15 Sup. Ct. 877.) So, also, it was a departure from law to law to change a com- plaint seeking damages for alleged breach of warranty in a contract of sale to one alleging rescission on the ground of fraud, and seeking recovery of the purchase price paid. (Whalen v. Gordon, 95 Fed. 305, 37 C. C. A. 70.) On a fact basis it was held a departure to change a complaint for an unconditional recovery of property on the ground of fraud to a bill to redeem. (Warner v. Godfrey, 186 U. S. 365, 46 L. Ed. 1203, 22 Sup. Ct. 852.) On the other hand, where the broad basis of fact was the injury to plaintiff, without fault or. his part, through the negligence of the railway company with respect to the appliances on which he was working at the time, it was held not to be a departure to change the original declaration charging negligence on account of "the defective condition of the cross-ties and roadbed" to a charge that plaintiff was injured "on account of the drawhead and coupling-pin not being suitable to the purpose for which they were used; he being ignorant thereof and of the defective con- dition of the tracks." (Texas & P. Ry. Co. v. Cox, 145 U. S. 593, 36 L. Ed. 829, 12 Sup. Ct. 905.) Prom an analysis of these cases and under Equity Rule 19 the circuit court of appeals (7th circuit), affirmed a decree where an amendment to the complaint had been permitted where the bill was to enforce a statutory lien for work done under a certain 347 AMENDMENTS. Ch. 31, 762-763 contract and oral modification and the amended bill set up the same statutory right but alleged an adoption with a modifica- tion of the contract set up in the original contract. (Galesburg & K. El. Co. v. Hart, 221 Fed. 7, 136 C. C. A. 533.) 762. Amendment Where Plaintiff Fails to Set Down for Argument Objection in Answer for Defect of Parties Rule 43. Equity Rule 43. "Where the defendant shall by his an- swer 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, notwith- standing an objection for want of parties taken by the answer. he shall not at the hearing of the cause, if the defendant's objection shall then be allowed, be entitled as of course to an order to amend his bill by adding parties; but the court shall be at liberty to dismiss the bill, or to allow an amend- ment on such terms as justice may require." (3 U. S. Comp. Stats. 1916, 1536, p. 2515; Foster's Federal Practice, 5th ed., 129, p. 456; Simkins' Federal Equity Suit, 3d ed., pp. 262, 264, 426.) 763. Amendment on Death of Party Rule 45. Equity Rule 45. "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 take the necessary orders for notice to the parties to be substituted and for the filing of such pleadings or amendments as may be necessary." (3 U. S. Comp. Stats. 1916, 1536, p. 2515 ; Foster's Federal Practice, 5th ed., 216, p. 736, 221, p. 750, 224, p. 753; Simkins' Federal Equity Suit, 3d ed., pp. 379, 381, 382, 383, 442.) 770-771, Ch. 32 MANUAL OP FEDERAL PROCEDURE. 348 CHAPTER 32. SUPPLEMENTAL PLEADING. SEO. 770. The Equity Rule No. 34. 771. Supplemental Pleading Used to Bring in Matters Occurring Since Original Pleading Filed. 772. Allowance of Supplemental Pleadings in Court's Discretion. 773. Equity Rule 35 as to Form of Supplemental Pleading. 770. The Equity Rule No. 34. Equity Ride 34. "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 plead- ing, alleging material facts occurring after his former plead- ing, or of which he was ignorant when it was made, including the judgment or decree of a competent court rendered after the commencement of the suit, determining the matters in con- troversy or a part thereof." (3 U. S. Comp. Stats. 1916, 1536, p. 2512; Foster's Federal Practice, 5th ed., 231 et seq., p. 765; Simkins' Federal Equity Suit, 3d ed., pp. 366, 368, 370, 371, 376, 438, 439.) 771. Supplemental Pleading Used to Bring in Matters Occur- ring Since Original Pleading Filed. In Kryptok Co. v. Hauss- mann & Co. (E. D. Pa.), 216 Fed. 267, at p. 268, the court said: "As the matters sought to be brought into the pleadings have occurred since the filing of the original bill, they cannot be brought in by amendment, but must be by supplemental bill. If a plaintiff be without a cause of action at the time of the filing of his bill, he is not helped, in the sense of having his action continued, by bringing in subsequent matters which constitute a good cause of action but' which are sought to be brought in after answer filed. A fortiori he would not be entitled to a preliminary injunction in the same suit. The legal effect, however, of the matters sought to be introduced here does not go to the existence of an original cause of action 349 SUPPLEMENTAL PLEADING. Ch. 32, 772-773 but to a confirmation of it, out of or from which, as a matter of practice, the allowance of certain incidental rights flow. "Rule 34 was adopted to meet just such a contingency, and is directly applicable in the present case." 772. Allowance of Supplemental Pleadings in Court's Dis- cretion. Under old Rule 57, now Equity Rule 34, the action of the court, in refusing to permit supplemental pleadings, could be reviewed only in case of gross abuse of discretion. (Liebiging v. Matthews (8th Cir.), 216 Fed. 1, 132 C. C. A. 245.) 773. Equity Rule 35 as to Form of Supplemental Pleading. Equity Rule 35. "It shall not be necessary in any bill of revivor or supplemental bill to set forth any of the state- ments in the original suit, unless the special circumstances of the case may require it." (3 U. S. Comp. Stats. 1916, 1536, p. 2512; Foster's Federal Practice, 5th ed., 223, p. 752, and 232, p. 772; Simkins' Federal Equity Suit, 3d ed., pp. 372, 375, 383.) 780 781. Oh. 33 MANUAL, or FEDERAL PROCEDURE. 350 CHAPTER 33. EEVIVOR. SEC. 780. The Equity Rule No. 45. 781. Eevivor may be Made by Motion- Time. 782. Eevival in Stockholder's Suit. 780. The Equity Rule No. 45. Equity Rule 45. Death of party Eevivor. "In the event of the death of either party the court may, in a proper case, upon motion, order the suit to be revived by the substitution of the proper parties. If the successors or representatives of the deceased party fail to make such application within a reasonable time, then any other party may, on motion, apply for such relief, and the court, upon any such motion, may make the necessary orders for notice to the parties to be sub- stituted and for the filing of such pleadings or amendments as may be necessary." (3 U. S. Comp. Stats. 1916, 1536, p. 2515; Foster's Federal Practice, 5th ed., pp. 736, 750, 753; Simkins' Federal Equity Suit, 3d ed., p. 379 et seq., and p. 442.) This is a new rule superseding old Rule 56. 781. Reviver may be Made by Motion Time. In Spring v. Webb (D. Vt.), 227 Fed. 481, the court held that revivor should be moved within a reasonable time after plaintiff's death, other- wise a motion to dismiss was proper. The court said: "Bills of revivor are cumbrous survivals of antiquity, and in my judgment Rule 45 was intended to regulate and make identical the method of revival and the method of penalizing a failure to revive; i. e., to make simple motions applicable to both contingencies." This is a different rule of procedure from that established Under old Rule 56. (Dillard 's Admr. v. Central Virginia Iron 351 REVIVOB. Ch 33 782 Co., 125 Fed. 157; Fitzpatrick v. Domingo, 14 Fed. 216, 4 Woods, 163; Brown v. Fletcher, 140 Fed. 639.) 955 and 956, Rev. Stats., quoted above in 561 and 562, together with Equity Rule 45, control the revival of actions in the federal courts, the equity rule, of course, not applying to law actions. V 782. Revival in Stockholder's Suit. A stockholder's suit, in which the bill charges the failure or refusal of the corporation to bring action for torts against the defendants, is capable of revivor, after the death of the original plaintiff, in the name of any other shareholder similarly situated, or in the name of the deceased plaintiff's executors, if his shares of stock have de- scended to them, even conceding that actions of tort fail with the death of the plaintiff under the state law, and that the United States courts obey, in respect of abatement and revival, the laws of the state in which they sit, since the cause of action put forward in a stockholder's suit is derivative, and the stock- holder's primary right of the corporation, which does not fail with the stockholder's death. (Spring v. Webb (D. Vt.), 227 Fed. 481.) 790-791, Ch. 34 MANUAL OF FEDERAL, PROCEDURE. 352 CHAPTER 34. PROCESS IN EQUITY. SEO. 790. The Summons in Equity is the Subpoena. 791. Issue Form Eeturn of Subpoena. 792. The Precipe. 793. The Subpoena. 794. Alias Subpoenas. 795. Process in Behalf of and Against Persons not Partiet. 796. Process by Whom Served. 797. Manner of Serving Subpoenas. 798. Forms of Eeturns. 799. Form of Process and Eeturn How Governed. 800. Substituted Service. 790. The Summons in Equity is the Subpoena. Equity Rule 7. "The process of subpoena shall constitute the proper mesne process in all suits of equity, in the first in- stance, to require the defendant to appear and answer the bill." (3 U. S. Comp. Stats. 1916, 1536, p. 2498; Foster's Federal Practice, 5th ed., pp. 570, 574; Simkins' Federal Equity Suit, 3d ed., pp. 312, 313.) 791. Issue Form Return of Subpoena. Equity Rule 12. "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 con- tain the names of the parties and be returnable into the clerk 's office twenty days from the issuing thereof. At the^ bottom of the subpoena shall be placed a memorandum, that the de- fendant is required to file his answer or other defense in the clerk's office on or before the twentieth day after service, excluding the day thereof; otherwise the bill may be taken pro confesso. Where there are more than one defendant, a writ of subpoena may, at the election of the plaintiff, be sued out separately for each defendant, or a joint subpoena against all the defendants." (3 U. S. Comp. Stats. 1916, 1536, 353 PROCESS IN EQUITY. Ch. 34, 792-71)3 p. 2500; Foster's Federal Practice, 5th ed., pp. 570, 571; Simkins' Federal Equity Suit, 3d ed., pp. 285, 313, 318, 319, 330, 385, 394, 406, 431, 454.) 792. The Precipe. The "application of the plaintiff" men- tioned in Rule 12 (791, above) is called the "precipe." This is a printed form which may be obtained from the clerk. The following form is suggested: United States of America. District Court of the United States, District of , Division. ^1 Clerk's Office. vs. > No. Precipe To the Clerk of Said Court, Sir: Please issue - . After the words "please issue" there may be inserted the following.- Subpoena for the defendants [naming them], Dated - . - , Attorney for Plaintiff. 793. The Subpoena. After filing of the bill and the precipe, the clerk will issue, sign, and seal a subpoena. The subpoena is a printed form entitled in the court from which it issues, and under 911, Rev. Stats. (522, supra), it is in the name of the Presi- dent of the United States bearing teste of the judge of the district court. The following form is sufficient : United States of America. District Court of the United States, - District of - , - Division. In Equity. The President of the United States of America, Greeting. To - : You are hereby commanded to appear in said district court of the United States aforesaid within the time specified in the memorandum below to file your answer or other defense to a bill of complaint exhibited against you in said court by - who - citizen of the - and to do and re- ceive what the court shall have considered in that behalf^ And this you are not to omit under penalty of five thousand dollars. Manual 28 794-795, Ch. 34 MANUAL OP FEDERAL PROCEDURE. 354 Witness the 'Honorable district judge of said court this day of in the year of our Lord one thousand nine hundred and of our Independence, one hundred and , Clerk. By , Deputy Clerk. Memorandum Pursuant to Equity Eule 12. You are hereby required to file your answer or other defense in the above suit in the clerk's office of said court pursuant to said bill, on or before the twentieth day after service hereof upon you, excluding the day thereof, otherwise the said bill will be taken pro confesso. , Clerk. By , Deputy Clerk. 794. Alias Subpoenas. Inasmuch as the subpoena is return- able into the clerk's office twenty days from the issuing thereof, it will frequently happen that there will be a failure to serve within the time in which the subpoena must be returned. If service be not made within the time limited an alias subpoena may issue. Equity Rule 14. "Whenever any subpoena shall be re- turned not executed as to any defendant, the plaintiff shall be entitled to other subpoenas against such defendant, until due service is made." (3 U. S. Comp. Stats. 1916, 1536, p. 2501; Foster's Federal Practice, 5th ed., p. 573; Simkins' Federal Equity Suit, 3d ed., p. 313.) 795. Process in Behalf of and Against Persons not Parties. Equity Rule 11. "Every person, not being a party in any cause, who has obtained an order, or in whose favor an order shall have been made, may enforce obedience to such order by the same process as if he were a party ; and every person, not being a party, against whom obedience to any order of the court may be enforced, shall be liable to the same proceas for enforcing obedience to such orders as if he were a party." (3 U. S. Comp. Stats. 1916. 1536, pp. 2499, 2500; Foster's Federal Practice, 5th ed., p. 1343; Simkins' Federal Equity Suit, 3d ed., p. 590.) 355 PROCESS IN EQUITY. Ch. 34, 796-798 796. Process by Whom Served. Equity Rule 15. "The service of all process, mesne and final, shall be by the marshal of the district, or his deputy, or by some other person especially appointed by the court or judge for that purpose, and not otherwise. In the latter case, the person serving the process shall make affidavit there- of." (3 U. S. Comp. Stats. 1916, 1536, p. 2501; Foster's Federal Practice, 5th ed., pp. 574, 576; Simkins' Federal Equity Suit, 3d ed., p. 315.) Under this rule the marshal serves the process in equity. (United States v. Mitchell (E. D. N. Y.), 223 Fed. 805, 806.) 797. Manner of Serving Subpoenas. Equity Rule 13. "The service of all subpoenas shall be by delivering a copy thereof to the defendant personally, or by leaving a copy thereof at the dwelling house or usual place of abode of each defendant, with some adult person who is a member of or resident in the family." (3 U. S. Comp. Stats. 1916, 1536, p. 2500; Foster's Federal Practice, 5th ed., p. 574; Simkins' Federal Equity Suit, 3d ed., pp. 315, 316.) 798. Forms of Returns. In the event that the service is made on the defendant personally, the marshal's certificate may be in the following form: United States Marshal's Office. | District of . C BB * I hereby certify that I received the within writ on the day of , nd personally served the same on and by delivering to and leaving with and said defendants named therein, personally, at the county of in said district a copy thereof . , United States Marshal. By , Deputy. Dated at 799, Ch. 34 MANUAL OF FEDERAL PROCEDURE. 356 If someone other than the marshal or his deputy make service, his affidavit should be in form somewhat as follows for personal service : r State of . | County of . ( 88 ' ) being first duly sworn on oath says: That on the day of 19 , he personally served same on and by delivering to and leaving with and said defendant named therein personally in the county of in the said district, a copy thereof . Subscribed and sworn to before me this day of , 19 . [Seal] (Official Designation.) In the event that the service is not made on the defendant per- sonally, but by substituted service authorized in the above-quoted Equity Rule 13 (797, above), the marshal's return or the affi- davit of service as the ease may be should show this fact by reciting that he personally served the writ on the defendants named "by leaving a copy thereof at the dwelling house (or if the defendant has no dwelling house then state 'at the usual place of abode') of the defendant with ... an adult person who is a member of (or if not a member state 'who is a resident in') the family." 799. Form of Process and Return How Governed. 913, Rev. Stats. ' ' The forms of mesne process and the forms and modes of proceeding in suits of equity and of ad- miralty and maritime 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 sub- ject to alteration and addition by the said courts, respectively, and to regulation by the Supreme Court, by rules prescribed, from time to time, to any [circuit or] district court, not in- consistent with the laws of the United States." (6 Fed. PROCESS IN EQUITY. Ch. 34, 800 Stats. Ann., 2d ed., p. 18 ; 3 U. S. Comp. Stats. 1916, 1536, p. 2496; Foster's Federal Practice, 5th ed., p. 1428.) 922, Rev. Stats. "When the marshal or his deputy is a party in any cause, the writs and precepts therein shall be directed to such disinterested person as the court or any jus- tice or judge thereof may appoint, and the person so appointed may execute- and return them." (6 Fed. Stats. Ann., 2d ed., p. 81; 3 U. S. Comp. Stats. 1916, 1548, p. 3107; Foster's Federal Practice, 5th ed., p. 575.) 800. Substituted Service. In Johnson-Brown Co. v. Dela- ware, L. & W. R. Co. (S. D. Ga.) f 239 Fed. 590, it was held that substituted service of a bill in equity against a foreign corpora- tion, made on its attorney without any order having been pro- cured therefor, is invalid ; the proper procedure being to apply for an order for such service, accompanied by an affidavit showing its necessity. In a suit by a trustee in bankruptcy to set aside as a preference an assignment of a debt owing to the bankrupt by a nonresi- dent, where the debtor admitted the debt and offered to, but did not, pay the money into court, the court cannot obtain juris- diction over the assignees, who were nonresidents of the district, by substituted service under Jud. Code, 57 ( 526. supra}, pro- viding that, in any suit to enforce a lien on or claim to real or personal property within the district where the suit is brought, an absent defendant may be served with an order to defend wherever he may be found or by publication, since the jurisdiction conferred by that section rests on a real and not a constructive basis, and the existence of the property within the district is essential to the court's jurisdiction, (Murphy v. Ford Motor Co., 241 Fed. 134.) 810-811, Ch. 35 MANUAL OF FEDERAL PEGGED UitE. 358 CHAPTER 35. DECREE PEO CONPESSO. SEO. 810. Time for Defensive Pleading Twenty Days After Service of Subpoena. 811. Default When Taken. 812. Pleading Eequired to Save from Decree Pro Confesso. 813. Decree Pro Confesso When Made Final. 810. Time for Defensive Pleading Twenty Days After Ser- vice of Subpoena. Equity Rule 12. " ... 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, excluding the day thereof; other- wise the bill may be taken pro confesso. . . . ' (3 U. S. Comp. Stats. 1916, 1536, p. 2500; Foster's Federal Practice, 5th ed., pp. 570, 571; Simkins' Federal Equity Suit, 3d ed., pp. 313, 318, 330, 385, 386, 394, 406, 431.) But the time above mentioned under Rule 16 ( 811, below) may be enlarged "for cause shown by a judge of the court." Rules 12 and 16 should be read together. 811. Default When Taken. Equity Rule 16. "It shall be the duty of the defendant, unless the time shall be enlarged, for cause shown, by a judge of the court, to file his answer or other defense to the bill in the clerk's office within the time named in the subpoena as required by Rule 12, quoted in the preceding section. In de- fault 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." (3 U. S. Comp. Stats. 1916, 1536, p. 2501; Foster's Federal Practice, 5th ed., pp. 614, 617, 623, 681; Simkins' Federal Equity Suit, 3d ed., pp. 330, 385, 386, 387, 390, 394, 406, 431, 454.) 359 DECREE PRO CONFESSO. Ch. 35, 812 812. Pleading Required to Save from Decree Pro Confesso. In order to save from default, the defendant, under Rule 16 (811, above), "unless the time shall be enlarged for cause shown, by a judge of the court," is required "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 "(810, above), to wit, "on or before the twentieth day after service, excluding the day thereof; otherwise the bill may be taken pro confesso." What is such "other defense" as will save a defendant from the taking of the bill against him pro confessof To avoid confusion it must be remembered that the state rules as to pleadings do not apply to federal equity suits, but the fed- eral equity rules and decisions wholly determine the procedure, time, order, -and manner of pleading. Hence the filing of a written appearance, a motion for security for costs, a demurrer, a plea, or any other defensive pleading not authorized by the federal equity rules, would not be sufficient to save from default in a fed- eral equity suit even though sufficient in a similar suit in the state courts under the state practice of the state wherein the federal court may be located. Under the new rules in force February 1, 1913, the following would seem to come under the term "other defense," which would save from default: (1) A special appearance by motion to quash the process on some jurisdictional ground; (2) under Rule 29, motion to dismiss on certain points of law arising upon the face of the bill (chapter 39, post} ; (3) under Rule 20, a motion makes more definite and certain (chapter 41, post) ; (4) under Rule 21, a motion to strike redundant, impertinent or scandalous matter (chapter 42, post) (5) under Rule 22, a motion to transfer to the law side an action at law erroneously begun as a suit in equity (chapter 37, post). It is, however, not certain that anything other than a motion to dismiss is intended by the term "other defense," as there is no time designated for filing answer except after over- ruling any other motion than a motion to dismiss or after filing an amended bill. 813, Ch. 35 MANUAL OP FEDERAL PROCEDURE. 360 813. Decree Pro Confesso When Made Final. Equity Rule 17. "Decree pro confesso to be followed by final decree setting aside default. When the bill is taken pro confesso the court may proceed to a final decree at any time after the expiration of thirty days after the entry of the order pro confesso, and such decree shall be deemed absolute unless the court shall, at the same term, set aside the same, or enlarge the time for filing the answer, upon cause shown upon motion and affidavit. No such motion shall be granted, unless upon the payment of the costs of the plaintiff up to that time, or such part thereof as the court shall deem reasonable, and unless the defendant shall undertake to file his answer within such time as the court shall direct, and submit to such other terms as the court shall direct, for the purpose of speeding the cause." (3 U. S. Comp. Stats. 1916, 1536, p. 2501; Fos- ter's Federal Practice, 5th ed., p. 618; Simkins' Federal Equity Suit, 3d ed., pp. 385, 387, 391, 393.) 361 DEFENSIVE PLEADINGS EQUITY. Ch. 36, 820-821 CHAPTER 36. DEFENSIVE PLEADINGS EQUITY, SEC. 820. Kinds of Defensive Pleading. 821. Motion Day. 22. Notices. 823. Motions Gran table of Course. 824. Defect of Parties. 825. Notice of Orders. 820. Kinds of Defensive Pleading. Under Equity Rule 29 (chapter 39, post}, demurrers and pleas are abolished, and under Equity Rule 21 (chapter 42, post), the right to except to bills and other proceedings for scandal or impertinence shall not ob- tain. The old forms have evidently been abandoned so that the new proceedings will not be confused by them. All defenses are made either by motions or in the answer, and all issues not requiring trial of the principal case may be determined on short notice before the trial. 821. Motion Day. Equity Rule 6. "Each district court shall establish regu- lar times and places, not less than once each month, when motions requiring notice and hearing may be made and dis- posed of; but the judge may at any time and place, and on such notice, if any, as he may consider reasonable, make and direct all interlocutory orders, rulings and proceedings for the advancement, conduct and hearing of causes. If the pub- lic 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." (3 U. S. Comp. Stats 1916, 1536, p. 2498; Foster's Federal Practice, 5th ed., p. 804; Simkins' Federal Equity Suit, 3d ed., pp. 129, 204, 307, 310, 311.) 822, Ch. 36 MANUAL OF FEDERAL PROCEDURE. 362 822. Notices. Second Paragraph Equity Rule 1. "... 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." (3 U. S. Comp. Stats. 1916, 1536, p. 2497; Foster's Federal Practice, 5th ed., 251, p. 798; Simkins' Federal Equity Suit, 3d ed., pp. 309, 332, 371, 402.) Part Equity Rule 6. " . . . but the judge may at any time and place, and on such notice, if any, as he may consider - reasonable, make and direct all interlocutory orders, rulings, and proceedings for the advancement, conduct, and hearing of causes." (3 U. S. Comp. Stats. 1916, 1536, p. 2498; Simkins' Federal Equity Suit, 3d ed., pp. 129, 204, 310, 311, 332, 371, 402, 404, 414.) Part Equity Rule 29. "... 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 within five days there- after or a decree pro confesso entered." (3 U. S. Comp. Stats. 1916, 1536, p. 2508.) Part Equity Rule 73. "... Upon two days' notice to the party obtaining such temporary restraining order, the op- posite party may appear and move the dissolution or modifica- tion of the order, and in that event the court or judge shall proceed to hear and determine the motion as expeditiously as the ends of justice may require. . . . ' (3 U. S. Comp. Stats. 1916, 1536, p. 2526; Foster's Federal Practice, 5th ed., 255, p. 815, 257, p. 817, 291, p. 905; Simkins' Fed- eral Equity Suit, 3d ed., p. 475.) Under Equity Rule 33 (Chapter 46, post) the plaintiff on five days' notice, or such further time as the court may allow, tests the sufficiency of an affirmative defense in the answer by a mo- tion to strike out. 363 DEFENSIVE PLEADINGS EQUITY. Ch. 36, 823-824 823. Motions Grantable of Course. Equity Bide 5. "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." (3 U. S. Comp. Stats. 1916, 1536, p. 2498; Foster's Federal Practice, 5th ed., pp. 797, 819; Simkins' Federal Equity Suit, 3d ed., pp. 306, 310; Columbia Metal Box Co. y. Halper, 220 Fed. 912, 136 C. C. A. 478.) 824. Defect of Parties. Equity Rule 43. "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, notwith- standing an objection for want of parties taken by the answer, he shall not at the hearing of the cause, if the defendant's objection shall then be allowed, be entitled as of course to an order to amend his bill by adding parties ; but the court shall be at liberty to dismiss the bill, or to allow an amendment on such terms as justice may require." (3 U. S. Comp. Stats. 1916, 1536, p. 2515; Foster's Federal Practice, 5th ed., 129, p. 456; Simkins' Federal Equity Suit, 3d ed., pp. 262, 264, 426.) Equity Rule 44. "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 ob- jection applies, the court shall be at liberty to make a decree saving the rights of the absent parties." (3 U. S. Comp. Stats. 1916, 1536, p. 2515; Simkins' Federal Equity Suit, 3d ed., pp. 263, 427.) 825, Ch. 36 MANUAL OF FEDERAL PROCEDURE. 364 825. Notice of Orders. Equity Rule 4. "Neither the noting of an order in the equity docket nor its entry in the order book shall of itself be deemed notice to the parties or their solicitors; and when an order is made without prior notice to, and in the absence of, a party, the clerk, unless otherwise directed by the court or judge, shall forthwith send a copy thereof, by mail, to such party or his solicitor and 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." (3 U. S. Comp. Stats. 1916, 1536, p. 2498; Foster's Federal Practice, 5th ed., pp. 798, 813, 819, 1364; Simkins' Federal Equity Suit, 3d ed., p. 309.) 365 TRANSFERRING TO LAW SIDE. Ch. 37, CHAPTER 37. TRANSFERRING TO LAW SIDE ADEQUATE REMEDY AT LAW. SEC. 840. Action at Law Erroneously Begun as Suit in Equity to be Transferred to Law Side Under Rule 22. 841. Amendment of Pleadings to Conform Action to Proper Side of Court Law or Equity. 842. Amendment Setting Up a New Cause of Action Does not Relate Back to Prevent Bar of Statute of Limitations. 843. Motion Should be to Transfer to Law Side Under Rule 22 or to Deter- mine Questions of Law Under Rule 23, and not to Dismiss Under Rule 29. 844. Rules 22 and 23 Do not Change Mode of Beginning a Suit in Equity. 845. Equity Suits not Maintainable Where Legal Remedy Adequate. 846. What is an Adequate Remedy at Law. 847. Necessity of Mixed Character of Remedies Gives Equity Jurisdiction as Legal Remedy Alone is not Then Adequate. 848. Where Recovery of Money is Only Relief Sought Remedy at Law is Adequate. 849. Where Account may be Adjusted by Jury Remedy at Law Adequate. 850. Where Remedy at Law Does not Afford a Practical and Efficient Result Equity may Take Jurisdiction. 851. When Legal Remedy Need not be Exhausted to Maintain Creditor's Bill. 840. Action at Law Erroneously Begun as Suit in Equity to be Transferred to Law Side Under Rule 22. Equity Rule 22. "If at any time it appear that a suit com- menced 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 proceeded with, with only such alteration in the pleadings as shall be essential." (3 U. S. Comp. Stats. 1916, 1536, p. 2502; Foster's Federal Prac- tice, 5th ed., pp. 336 r 725, 1184; Simkins' Federal Equity Suit, 3d ed., pp. 27, 28, 29, 302, 552.) Under this rule the motion is to transfer to the law side and not to dismiss. (Corsicana National Bank v. Johnson (5th Cir.), 218 Fed. 822, 134 C. C. A. 510.) 841, Ch. 37 MANUAL OP FEDERAL PROCEDURE. 366 Plaintiff should not be turned out of court but should be per- mitted to alter his complaint by adopting such parts thereof as he may be able to utilize as a basis for his complaint at law. (Watson v. Huntington (2d Cir.), 215 Fed. 472, 131 C. C. A. 520.) The rule is much broadened by the Act of March 3, 1915, c. 90, adding 274a to the Judicial Code, quoted in 841, below. "The rule and the statute have swept away any and all technical objection whatever, and a motion to dismiss on the ground of an adequate remedy at law will not lie." (Collins v. Bradley (W. D. Wis.), 227 Fed. 199, 201.) Under the above rule a motion was made to transfer the case to the law side of the court. With the exception of a claim for a balance of salary, the subject matter of the suit was held to be equitable and the motion denied, under Equity Rule 23 quoted, 860 below. (Wright v. Barnard, 233 Fed. 329, 330, 331.) 841. Amendment of Pleadings to Conform Action to Proper Side of Court Law or Equity. 274a, Jud. Code, Added by Amendment March 3, 1915, c. 90. "That in case any of said courts shall find that a suit at law should have been brought in equity or a suit in equity should have been brought at law, the court shall order any amendments to the pleadings which may be necessary to con- form them to the proper practice. Any party to the suit shall have the right, at any stage of the cause, to amend his plead- ings so as to obviate the objection that his suit was not brought on the right side, of the court. The cause shall proceed and be determined upon such amended pleadings. All testimony taken before such amendment, if preserved, shall stand as tes- timony in the cause with like effect as if the pleadings had been originally in the amended form." (38 Stats. 956; 5 Fed. Stats. Ann., 2d ed., p. 1059 ; 2 U. S. Comp. Stats. 1916, 1251a, p. 2023; Waldo v. Wilson (4th Cir.), 231 Fed. 654, 145 C. C. A. 540; Webb v. Southern R. Co. (S. D. Ala.), 235 Fed. 578; National Surety Co. v. United States (6th Cir.), 228 Fed. 577, L. R. A. 1917A, 336, 143 C. C. A. 99.) 367 ^TRANSFERRING TO LAW SIDE. Ch. 37, 842-843 842. Amendment Setting Up a New Cause of Action Does not Relate Back to Prevent Bar of Statute of Limitations. Where a bill to rescind a sale of land 'for fraud and to recover incidental damages was transferred to the law side of the court under Equity Rule 22, because the plaintiff has put it out of his power to restore the vendor to his former position, an amended petition claiming damages for the fraud, if allowable, sets up a new cause of action, and did not relate back to the filing of the original bill, so that it was barred where four years had elapsed after the discovery of the fraud before the filing of the amend- ment. (Friederichsen v. Renard (8th Cir.), 231 Fed. 882, 146 C. C. A. 78.) 843. Motion Should be to Transfer to Law Side Under Rule 22 or to Determine Questions of Law Under Rule 23 and not to Dismiss Under Rule 29. In Goldschmidt Thermit Co. v. Primos Chemical Co. (E. D. Pa.), 216 Fed. 382, at page 383, the court said on a motion to dismiss: "... as the decree of a chancellor is always of grace, and is never the absolute right of a litigant, the courts will refuse to entertain jurisdiction, where the averments which confer it are wholly colorable, and relief is vainly asked through a purely equitable remedy for the mere purpose of giving juris- diction, in order to grant other relief which may be obtained at law. In other words, it is not that the courts do not have jurisdiction, but that they refuse to exercise it. The strength of the plaintiff's appeal to have its bill entertained is in its contention that a suit for damages would not enable it to get that to which it is entitled. "This feature of the case of the plaintiff was recognized in Tompkins v. International Paper Co., 183 Fed. 773, 106 C. C. A. 529, and it there saved the bill from dismissal. It cannot at this stage of the case be found that this is not the situation of the present plaintiff. Thus seems ta stand the case without reference to the equity rules. By what token, however, can these rules be ignored? They are directly ap- plicable to the question now raised and disposed of it. Rule 22 expressly provides what shall be done 'at any time it ap- 843, Ch. 37 MANUAL OF FEDERAL PROCEDURE. 368 pears' that the suit should have been brought at law. More than this, Rule 23 commands us not to dismiss a bill on this ground. The case may be proceeded with, and when it ap- pears, if it does develop, that this case should be tried at law and the amount of damages assessed by the verdict of a jury, this may be done." In Goldschmidt Thermit Co. v. Primes Chemical Co. (E. D. Pa. ) , 225 Fed. 769, at page 775, the court said on motion to transfer to the law side: "The administrative policy enjoined upon us by these rules [22 and 23] is not to permit plaintiffs to be hampered by procedure objections on the ground that complaint had been made to the wrong court, but, while preserving to defendants all their rights in the disposition of cases, nevertheless to dis- pose of them by having them determined by that court to whose decision they are properly subject. "The spirit and intendment is that the question by what tribunal the case should be decided is to 1 e determined when the question can be decided in the full light of all the in- formation obtainable. Plaintiff is to have accorded to it its right to equitable relief in form and method of procedure, and the defendant is to be given full protection in the asser- tion of its right in a proper case to have it submitted to a jury. The question is one to be decided on its merits with no more regard to mere form of procedure than is required, and, whenever it appears that a case brought in equity should have been brought at law, full power is given to make the transfer. It is the experience of every trial lawyer of extensive practice, as well as of every trial judge, that when a case of accounting is about to be submitted to a jury, the suggestion is often forced from the judge, or from counsel, that the accounting should be referred to someone well equipped to render it. If such should turn out to be this case, it would be discovered that a mistake had been made in now transferring it. "The conclusion reached is this: The defendant is within its rights in insisting upon the case being tried at law, if there is no real ground for a court of equity retaining juris- diction. This right, however, will remain in the case to be accorded to the defendant at any stage. All that is now de- 369 TRANSFERRING TO LAW SIDE. Ch. 37, 844-845 cidod is that on the face of the record technically a court of equity has jurisdiction, and we cannot find from the record now before us that the averments which confer this jurisdic- tion are merely colorable, nor can we find at present that the case is one which the defendant is entitled as a matter of right to have tried at law. "The motion to transfer is therefore dismissed, with leave to defendant to renew it at any time." 844. Rules 22 and 23 Do not Change Mode of Beginning a Suit in Equity. The mode of instituting a suit in equity by filing the bill, etc., has not been changed. Hence a motion to set aside a judgment after the term at which it was rendered could not be treated as a suit in equity and be docketed on the equity calendar, and proceeded with in accordance with the practice and procedure in such cases. (Wellman v. Bethea (E. D. S. C.), 213 Fed. 367.) 845. Equity Suits not Maintainable Where Legal Remedy Adequate. 557, Jud. Code (Formerly 723, Rev. Stats.}. "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." "The statute (above quoted) is no more than a legislative expression of pre-existing familiar law. As far back as Boyce v. Grundy, 3 Pet. (U. S ) 213, 7 L. Ed. 655, it was said, and it has been repeated in numerous cases since, including Will- iams v. Neely, 134 Fed. 10, 69 I R. A. 232, 67 C. C. A. 171, that such statute is merely declaratory of the well-recognized rule that a suit in equity cannot be sustained where there is a plain, adequate, and complete remedy at law. The converse is equally the settled law; that is, if the plaintiff has a justi- fiable cause and he has no plain, adequate, and complete remedy at law, he must have one in, equity. This plaintiff could not maintain an action at law, ejectment, or other simi- lar statutory action, for the plaintiff did not have, at the time Manual 24 846-847, Ch. 37 MANUAL OP FEDERAL PROCEDURE. '370 of the filing of the bill, the legal title coupled with the present right to possession." (Continental Trust Co. v. Tallassee Falls Mfg. Co. (M. D. Ala. N. D.), 222 Fed. 694, 702.) 846. What is an Adequate Remedy at Law. "The same answer has been made to this question by the courts of every jurisdiction, federal and state. It is that the remedy afforded by an action at law must be full, adequate, and complete. Mere existence of a remedy in the sense of the right to bring an action at law will not of itself suffice, but the remedy afforded by the action must be of the character, described." (Goldschmidt Thermit Co. v. Primos Chemical Co., 225 Fed. 772.) 847. Necessity of Mixed Character of Remedies Gives Equity Jurisdiction as Legal Remedy Alone is not Then Adequate. "The application of the principle of reference to the law side of the court is also accompanied with another principle. A case may be of a mixed character respecting the remedies called for, and there may be a commingling of the remedies to which the plaintiff is entitled, some of which may be purely equitable and which can be afforded only through chancery forms of procedure, and others, or at least one other, which may be administered through legal forms. "The principle then applicable is this: When the right to an equitable remedy exists in a plaintiff and he has filed his biU through and by which a court of equity has taken jurisdiction of his complaint, the court having thus acquired jurisdiction will proceed to a final and full determination of all his rights, notwithstanding the fact that this may involve findings which of themselves could have been made in an action at law. Among these equitable remedies, which are recognized as the right of a litigant to have applied, is the right to an injunc- tion, and in most jurisdictions at least to an accounting, where the accounting is complex and of a character with which a tribunal, made up of a jury, could not be expected to cope. The necessity for dlscoyery also may in itself confer equitable jurisdiction." (Goldschmidt Thermit Co. v. Primos Chemi- cal Co., 225 Fed. 773.) 371 TRANSFERRING TO LAW SIDE. Ch. 37, 848-850 848. Where Recovery of Money is Only Relief Sought Remedy at Law is Adequate. Where, in a suit by a bankrupt's trustee to recover an alleged preference, the only relief de- manded was the recovery of money claimed to have been paid to defendant by the bankrupt under circumstances alleged to constitute a voidable preference, there was a plain, adequate, and complete remedy at law; and hence a bill in equity was not maintainable under Judicial Code, 267, providing that suits in equity shall not be sustained in courts of the United States in any case where a plain, adequate, and complete remedy may be had at law. (First State Bank of Milliken v. Spencer (8th Cir.), 219 Fed. 503, 135 C. C. A. 253.) 849. Where Account may be Adjusted by Jury Remedy at Law Adequate. An action of ejectment would not be enjoined, and the litigation taken over by a court of equity, on the ground that, if an accounting should be decreed, a court of law would be without jurisdiction, where the defendant in the ejectment action, seeking the injunction, did not concede that there ever would be an accounting, especially where the account was short, and no reason was apparent why it could not be adjusted by a jury. (Weber v. Hertzell (8th Cir.), 230 Fed. 965, 145 C. C. A. 159.) 850. Where Remedy at Law Does not Afford a Practical and Efficient Result Equity may Take Jurisdiction. The district court was held to have had jurisdiction of an amended bill in equity by the holder of bonds issued by a regularly organized state irrigation district, alleging that the directors of the dis- trict had made and collected assessments for the payment of interest on the bonds, but had defaulted in interest, and had cast a cloud on the title to the bonds by claiming that part of them had been issued without consideration or without adequate con- sideration, on the ground of its independent equitable jurisdic- tion over trustees. 851, Ch. 37 MANUAL OF FEDERAL PROCEDUEE. 372 In such case the court held that the district court, though re- quired by Judicial Code, 267, to deny relief in equity in any case where adequate and complete remedy may be had at law, might take, jurisdiction on the ground that the only available action at law to recover the interest due on the bonds as they became due did not afford a practical and efficient result. (Thompson v. Emmett Irr. Disk (9th Cir.), 227 Fed. 560, 142 C, C. A. 192.) 851. When Legal Remedy Need not be Exhausted to Main- tain Creditor's Bill. As a general rule, a creditor's bill to set aside a fraudulent conveyance can be maintained only by one who has reduced his claim to judgment and had execution issued thereon and returned unsatisfied, since the debtor is en- titled to a trial by jury as to the correctness of plaintiff's de- mand, and the remedy at law must have been exhausted and the existence of a lien on the property or interest therein by con- tract or judgment is required. But, where it was admitted, by a mo- tion to dismiss, that plaintiff's demand was valid, that the debtor was wholly insolvent, and had no property anywhere subject to execution, and had left the state in which the land fraudulently conveyed was situated plaintiff's failure to reduce his demand to judgment did not defeat his right to sue, since a jury trial is unnecessary where the demand is admitted. The recovery of judg- ment is dispensed with where it is improper or impossible or would be useless. A judgment in another state would be no better than no judgment as a condition precedent to such suit, and, moreover, a judgment is not a lien on realty fraudulently con- veyed; it being the filing of the creditor's bill which creates the lien. (Adler Goldman Commission Co. v. Williams, 211 Fed. 530.) 373 LEGAL RELIEF IN EQUITABLE SUIT. Ch. 38, 8oO-861 CHAPTER 38. ADMINISTEEINO LEGAL BELIEF IN AN EQUITABLE SUIT. SEC. 860. The Rule in Equity No. 23. 861. Illustrations Specific Performance and Damages Quiet Title and Possession. 862. Court may Submit Incidental Issues to a Jury. 863. Where Equitable Jurisdiction Wholly Fails, Equity will not Retain Case to Determine Legal Issues. 864. The Rule Does not Permit the Joinder of Legal and Equitable Claims to Make Up the Necessary Jurisdictional Amount in Controversy. 860. The Rule in Equity No. 23. Rule 23. Matters Ordinarily Determinate at Law, When Arising in Suit in Equity to be Disposed of Therein. "If in a suit in equity a matter ordinarily determinable at law arises, such matter shall be determined in that suit according to the principles applicable, without sending the case or question to the law side of the court. "It is well settled that when equity obtains jurisdiction to administer one of its peculiar remedies, it will afford complete relief, even though to do so may involve the giving of relief which might have been obtained at law." (Bureau of National Literature v. Sells (W. D. Wash.), 211 Fed. 379, 382.) 861. Illustrations Specific Performance and Damages Quiet Title and Possession. In a suit by the United States for the specific enforcement of an agreement by a railroad company to execute a stipulation and bond to protect the public interests from loss or injury by reason of the construction and maintenance of its road over a national forest reservation, a court of equity has incidental jurisdiction to award damages for injuries previously caused by defendant to timber in the reservation. (Chicjiim. M. & St. P. Ry. Co. of Idaho v. United States (9th Cir.), 218 Fed. 288, 134 C. C. A. 84.) 862-863, Ch. 38 MANUAL OF FEDERAL PROCEDURE, 374 The rule is that a court of equity which has rightfully acquired jurisdiction of a cause will retain it to do complete justice between the parties. In a suit by a mortgage trustee for a cancellation of deeds as a cloud on the title to the mortgaged property, on a find- ing that the deeds are fraudulent and that defendants are wrong- fully in possession, the court will not leave them in such posses- sion, but will decree possession to complainant, although when the suit was commenced it did not have the right of possession under the terms of the mortgage. (Continental Trust Co. v. Tallassee Falls Mfg. Co. (M. D. Ala. N. D.), 222 Fed. 694, 702.) 862. Court may Submit Incidental Issues to a Jury. In Vosburg v. Watts (4th Cir.), 221 Fed. 402, 408, 137 C. C. A. 272, the court held that Rule 23 was not intended to deprive a court of equity of the discretionary right to have its "conscience en- lightened" or its work facilitated by referring to a jury some question of fact which is incidental and subordinate to the main contention. 863. Where Equitable Jurisdiction Wholly Fails, Equity will not Retain Case to Determine Legal Issues. "While this rule [Rule 23] permits the decision of a matter ordinarily determinable at law in a suit in equity when there remains jurisdiction to grant equitable relief upon the cause of action in suit, it does not authorize such a determination when jurisdiction of the cause in equity has entirely failed, and section 723 of the Revised Statutes [ 267, Jud. Code] grants to each of the parties the right to the trial of the matter by a jury according to the course of the common law." (Lin- den Inv. Co. v. Honstain Bros. Co. (8th Cir.), 221 Fed. 178, 18], 136 C. C. A. 121.) In this case a cause of action for a mechanic's lien failed because there was no showing as required by state law that the party for whose immediate use and benefit the building was erected has some estate or interest in the land. The court refused to allow the case to be retained for a personal judgment against said party. 375 LEGAL RELIEF IN EQUITABLE SUIT. Ch. 38, 864 864. The Rule Does not Permit the Joinder of Legal and Equi- table Claims to Make Up the Necessary Jurisdictional Amount in Controversy. A plaintiff having a claim of equitable cognizance of less than $3,000 for enforcement of a lien cannot invoke the juris- diction of a federal court by joining in a bill of equity seeking to enforce equitable claims separate and distinct legal causes of ac- tion for goods sold, and on an account stated entirely disconnected from the equitable claim, sufficient in amount to make over $3,000. (Bucyrus v. McArthur (M. D. Tenn.), 219 Fed. 266, 271, 272.) In the case last cited the court said : Page 271: "The Jurisdictional amount involved under the lien claims on the steam shovel is furthermore merely the amount claimed and not the value of the shovel. New Eng- land Mortgage Co. v. Gay, 145 U. S. 123, 130, 36 L. Ed. 646, 12 Sup. Ct. 815. Obviously, therefore, this court has no juris- diction under these two claims of an equitable nature, which aggregate only $2,453.05, exclusive of interest, unless in arriv- ing at the Jurisdictional amount there can be added one or both of the disconnected legal demands which have been joined in the bill. This is not a case presenting the joinder of dif- ferent equitable claims in one bill, where the test of the Juris- dictional amount is the aggregate of the claims. 1 Street's Fed. Eq. Prac., 367, p. 213, and cases cited ; and Lilienthal v. McCormick (9th Cir.) 117 Fed. 89, 95, 54 C. C. A. 475, in which the plaintiff claimed a lien on the same property, both for the advances and damages, each of these claims, however, being of an equitable nature, involving the enforcement of a lien. Nor is the question affected by Equity Rule 26, which merely authorizes the plaintiff to join in one bill as many causes of action 'cognizable in equity' as he may have against the defendant. Nor does Equity Rule 23, when read in con- nection with Equity Rule 26, authorize the joinder in a bill in equity of disconnected matters cognizable only at law, this rule obviously relating only to aiixiliary matters of legal cogni- zance which may arise in the determination of an equity cause. . . . "These matters are entirely disconnected, and if the case remained in court so much of the bill as relates to the third pr fourth claims would pearly have to be transferred to the 864, Ch. 38 MANUAL OF FEDERAL PROCEDURE. 370 law side of the court as a separate suit, leaving in the equity suit only the first and second claims. In neither of these two suits, however, would the requisite jurisdictional amount be involved. ' ' Page 272: "I may add, as an illustration of the complexity which would be introduced if a bill of this character could be maintained, that while the equitable portion of the bill relat- ing to liens claimed on the steam shovel may well be one of such 'a local nature' that a subpoena could be directed to the marshal of the Eastern District of Tennessee, where the de- fendant resides, under section 54 of the Judicial Code, or that at least the defendant could be brought before the court by substituted service of process, under section 57 of the Judi- cial Code, the legal claims set forth in the bill appear to be . of a purely transitory character. And since the defendant does not reside within this district and does not appear to be within the district, there is no provision of law by which he r ' could be summoned to appear and make defense to so much of the bill as relates to these transitory causes of action. The marshal of this district in which the suit is brought would, of course, be powerless to serve a subpoena upon the defend- ant outside of this district; while, to this extent, the action being of a transitory character, there would be no authority, statutory or otherwise, for the service of a writ of subpoena by the marshal of the Eastern district or for substituted ser- vice in that district." 377 MOTION TO DISMISS LN POINT OF LAW. Ch. 39, 880-881 CHAPTER 39. MOTION TO DISMISS IN POINT OF LAW. SEO. 880. Motion to Dismiss Under Equity Rule 29. 881. Applies to Bankruptcy Cases. 882. Admits Allegations of Bill Well Pleaded. 883. A Motion to Dismiss is in Effect a Demurrer, Evidence not to be Con- sidered. 884. Same Defense of Another Suit Pending cannot be Raised on Motion to Dismiss. 885. Same Defense of Special Statute of Limitations not Allowed on a Motion to Dismiss- 886. Motion to Dismiss Nonjoinder. 887. Defense in Bar Set Up on Motion to Dismiss. 888. Motion to Dismiss on Ground of Laches. 889. Judicial Notice in Aider of Motion to Dismiss. 890. Motion to Dismiss on Plaintiff's Answers to Interrogatories. 891. Illustration of Motion to Dismiss. 880. Motion to Dismiss Under Equity Rule 29. Part Equity Rule 29. "Every defense in point of law aris- ing upon the face of the bill, whether for misjoinder, non- joinder, or insufficiency of fact to constitute a valid cause of action in equity, which might heretofore have been made by demurrer, or plea, shall be made by motion to dismiss or in the answer. ... 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 within five days thereafter or a decree pro confesso entered." (Quoted in full 900, post.) 881. Applies to Bankruptcy Cases. A court of bankruptcy is an equity court, and subject to new Equity Rule 29, abolishing demurrers in equity suits. (Pollack v. Meyer Bros. Drug Co. (8th Cir.), 233 Fed. 861, 147 C. C. A. 535.) 882-883, Ch. 39 MANUAL OP FEDERAL PROCEDURE. 378 882. Admits Allegations of Bill Well Pleaded. A motion to dismiss a bill in equity admits all the allegations of the bill which are well pleaded. (Johnson v. Chicago, M. & St. P. Ry. Co. (W. D. Wash. N. D.), 224 Fed. 196, 200; Fordham v. Hicks (S. D. Ga. W. D.), 224 Fed. 810, 811.) "On motion to dismiss a bill, its averments must be treated as true, the same as in case of a demurrer." (Lowenthal v. Georgia Coast & R. R. Co., 233 Fed. 1010.) 883. A Mot: on to Dismiss is in Effect a Demurrer, Evidence not to be Considered. A demurrer, filed prior to February 1, 1913, was sustained subsequent to that date. Where the record did not show when it was submitted, it would be assumed, on ap- peal, either that it was submitted before February 1, 1913, or that the court treated it as a motion to dismiss. (Weber v. Hertzell (8th Cir.), 230 Fed. 965, 145 C. C. A. 159.) "The motions to dismiss were filed under Rule 29 of those in force February 1, 1913, and have the force and effect of demurrers. In the consideration of such motions the court cannot consider affidavits filed by defendants on disputed questions of fact. This additional difficulty is met with at the outset that, while many affidavits were introduced and are in the record offered by both the complainant and defendants, they were offered on the application for a temporary injunc- tion and not on the motion to dismiss. "Inasmuch as it seems desirable that the court first pass on the motions to dismiss, the court, in considering them, can only consider the third amended and supplemental bill, including, however, the exhibits incorporated therein and such additional matters as are conceded by the complainant." (Central Trust Co. of New York v. Denver & R. G. R. Co. (8th Cir.), 219 Fed. 110, 113, 135 C. C. A. 12.) In considering the motion the pleadings alone are involved. (Hosier v. Ireland, 219 Fed. 490, 491, 135 C. C. A. 201.) The proposition must be absolutely clear that taking the allega- tions of the bill to be true, it must be dismissed at the hearing. (Ralston Steel Car Co. v. National Dump Car Co. (D. Maine), 222 Fed. 590.) 379 MOTION TO DISMISS IN POINT OP LAW. Ch. 39, 884-885 $884. Same Defense of Another Stdt Pending cannot be Raised on Motion to Dismiss. "Under the old rules these facts would be raised by a plea in abatement, and to sustain it would require evidence. Spe- cial pleas of abatement are now abolished by Equity Rule 29, but may be set up in the answer. In any event the plea would be bad. This court had that question before it a short time ago in Falls City Construction Co. v. Monroe County, 208 Fed. 482, and it is unnecessary to repeat the reasons why such a plea is not good." (Adler & Goldman Commission Co. v. Williams, 211 Fed. 530, 532.) 885. Same Defense of Special Statute of Limitations not Allowed on a Motion to Dismiss. "It is to be noted that, while this rule requires that every defense heretofore presentable by plea in bar or abatement shall be made by answer, it is not every defense in point of law arising upon the face of the bill that heretofore was avail- able on demurrer that can be disposed of on motion without answer. The proposed defense could have been pleaded in bar of the complainant's action and disposed of in advance of the principal case, at the discretion of the court. It can- not, however, be disposed of on motion, without answer, be- cause it does not involve misjoinder or nonjoinder, and is not based on an insufficiency of fact to constitute a valid cause of action in equity the only grounds upon which a bill of com- plaint may be dismissed without answer. The bill alleges every fact necessary to constitute a valid cause of action in equity, as well as the reasons for the lapse of time in bringing suit. In such a situation, a statute (no longer existing) which, while in force, did not impair the cause of action to which it related, but only limited the time within which an action to enforce it could be brought, should be pleaded, with pertinent statements of fact making it applicable to the case made out by the bill. "The motion to dismiss is denied." (Tilden v. Barber (D. N. J.), 227 Fed. 1010, 1011.) 836-887, Ch. 39 MANUAL OP FEDERAL PROCEDURE. 380 886. Motion to Dismiss Nonjoinder. "The defendants have filed a motion to dismiss the suit on the ground of nonjoinder of parties, because the bill showa that' Rogers was jointly interested with Viets and Bancroft in the agreement of May 5, 1913, for the purchase and sale of the timber land. Viets, Bancroft, and Rogers are named as the parties of the one part to said agreement, while the Maine - Land & Lumber Company, one of the defendants, is named as the other party to said agreement. Defendants also moved to dismiss the complaint because Rogers still has a united in- terest with the other two in the subject matter of this suit, and that therefore it was necessary and indispensable that Rogers be made a party plaintiff to this cause, and as he is now, and was at the time this suit was brought a citizen of Connecticut, the necessary diversity of citizenship required to give this court jurisdiction does not exist. "In addition to this reason for dismissal, the defendants, in their motion, have set up other claims which need not be noticed here, as the motion to dismiss must be granted for nonjoinder of parties. "In case the plaintiffs bring a suit in the state court, based upon a bill of complaint like that set out in this action, the defendants may then raise, by demurrer or otherwise, the other questions which they have herein presented in their motion to dismiss, at which time such questions may be heard and determined." (State of Maine Lumber Co. v. King-field Co. (Conn.), 218 Fed. 902, 904.) "Where a motion to dismiss is made for a defect in the pleadings, and a hearing is had in advance of the trial, the motion must be considered on the complaint alone ; and hence, where defendant answered, alleging nonjoinder of. an indis- pensable party, and it was necessary to invoke the record in another case to show the necessity for joining such party, a motion to dismiss would not be heard in advance of the trial, but the issue would be heard and determined before the taking of testimony on the main issue." (Bogert v. Southern Pac. Co. (E. D. N. Y.), 211 Fed. 776.) 887. Defense in Bar Set Up on Motion to Dismiss. Under Rule 29, in a suit for infringement, the defense that defendant is 381 MOTION TO DISMISS IN POINT OF LAW. Ch. 39, 888-890 a contractor with the government for the articles infringing a patent and for that reason is protected by Act June 25, 1910, c. 423, may be set up by motion to dismiss. (Marconi Wireless Telegraph Co. v. Simon (S. D. N. Y.), 227 Fed. 906, 908.) 888. Motion to Dismiss on Ground of Laches. Under Rules 25 and-29, when laches is apparent on the face of the bill, it may be taken advantage of by motion to dismiss, which is equivalent to a demurrer. (Alexander v. Fidelity Trust Co. (E. D. Pa.), 215 Fed. 791.) In the case last cited the court said: "It is clear that these rules change only the manner of rais- ing such questions, and neither the questions themselves nor the equitable principles by which they are to be determined." 889. Judicial Notice in Aider of Motion to Dismiss. De- murrers under the old practice and motions to dismiss under the new can only be sustained in matters of judicial notice in a very clear case. (United States v. Mackey (8th Cir.), 216 Fed. 126, 132 C. C. A. 370.) 890. Motion to Dismiss on Plaintiff's Answers to Interroga- tories. "The procedure under Equity Rule 58, as followed in this case, was sanctioned by this court in Bronk v. Charles H. Scott Co., 211 Fed. 338, 128 C. C. A. 17, where it said: " 'If the decree cannot be sustained by an application of the law to the facts admitted by appellant in her bill and in her answers to appellee's interrogatories, the cause must be remanded for trial in due course. Undoubtedly the purpose of authorizing interrogatories was to enable the court to make a summary disposition of a cause by applying the law to an admitted state of facts; but, when the facts are not a-lmitted, neither that rule nor any other warrants a summary disposi- tion on affidavits or other untested showings by the party moving for the summary disposition, in lieu of proofs duly taken with proper opportunity for the adversary to cross- examine.' 891, Cll. 39 MANUAL OF FEDERAL PROCEDURE. 382 "In the instant case no question arises of the validity of the patent in suit. . . . The defense of noninfringement is the only one which this record raises. The bill broadly and aptly charges infringement, and is upon its face entirely suffi- cient. To dismiss it on motion would be unwarranted, unless / from the answers to the interrogatories it so clearly appears that the defendant did not infringe the patent in suit that the court can say that under no admissible evidence whiefc-might by any possibility exist can the conclusion of noninfringement be avoided." (Asbestos Shingle, Slate & Sheathing Co. v. As- bestos Shingle Co. (7th Cir.), 239 Fed. 539, 541, 152 C. C. A. 417.) 891. Illustration of Motion to Dismiss. "Defendant has moved the court to dismiss the bill, upon the ground that the facts stated therein are insufficient to con- stitute a valid cause of action in equity, in that the release signed by plaintiff relates to personal injuries and a satisfac- tion of the damage and claim for personal injuries occurring March 5, 1910, and that plaintiff's cause of action, if any, for injuries received on that date, accrued at that time, and that the law action commenced by plaintiff is barred by section 159 of Kemington & Ballinger's Code of Washington, which pro- vides that an action for an injury by one person of another must be commenced within three years from the date of the accrual o the cause of action." (Johnson v. Chicago, M. & St. P. Ky. Co. (W. D. Wash. N. D.), 224 Fed. 196, 197.) FORM MOTION TO DISMISS. In the District Court of the United States, in and for the Southern Dis- trict of California, Southern Division. In Equity No. . , Corporation, -\ Plaintiff, y > MOTION TO DISMISS. >, Incorporated, a Corporation, I Defendant. I Now comes , Incorporated, a corporation, the defendant in the above- entitled action, and moves the court to dismiss this action and that it takes its costs in this suit incurred for .the following reasons: 383 MOTION TO DISMISS IN POINT OP LAW. Ch. 39, 891 L Because ft appears in the complaint filed in this cause that a certain indispensable party defendant, to wit, , the lessor in the lease described, is a citizen of the same state as the state in which the plaintiff is a citizen, and therefore no diversity of citizenship exists as alleged and upon which basis the court is alleged to have jurisdiction. n. That there is insufficiency of fact to constitute a valid cause of action: in equity against the defendant. m. That there is a nonjoinder of an indispensable party, to wit, , the lessor in the lease set out in the complaint. , Solicitor for Defendant. , Of Counsel. FOBM DECKLE DISMISSING. In the District Court of the United States, in and for the Southern Dis- trict of California, Southern Division. In Equity No. . , Corporation, ^ Plaintiff, v. I DECREE DISMISSING STJIT ON DEFEND- , Incorporated, a Corporation, f ANT ' S MOTI N TO DlSM ' SS ' Defendant. ) This cause came on to be heard at this term, and was argued by counsel; and thereupon, upon consideration thereof, on the - - day of , 1917, the Honorable , District Judge, announced his decision, and caused a minute entry thereof to be made as follows: "This cause having heretofore been submitted to the court for its con- sideration and decision on defendant's motion to dismiss the bill of com- plaint; the court, having duly considered the same, and being fully advised in the premises, now announces its conclusions thereon, and it is accord- ingly ordered that said motion of defendant to dismiss the bill of complaint be, and same hereby is granted." It is, therefore, ordered, adjudged and decreed as follows, viz: That defendant's motion to dismiss be sustained, and that thin cause be and hereby is dismissed, and that defendant recover from plaintiff its costs herein expended. - , District Judge. O. K. as to form. , Solicitors for Plaintiffs. 900-9U1, Cll. 40 MANUAL OF FEDERAL PROCEDURE. 384 CHAPTER 40. SEC. 900. The Equity Rule No. 29. 901. Separate Hearing of Answer as a Plea. 902. Answer as a Plea may be Disposed of Either as an Issue of Law or of Mixed Law and Fact. 903. Answer as a Plea Should also Show Defendant's Other Defenses Should Set Out Defendant's Whole Defense. 904. On Sustaining of Plea Court Will Dismiss the Bill. 900. The Equity Rule No. 29. Equity Rule 29. "(Defenses How Presented.) Demur- rers and pleas are abolished. Every defense in point of law arising upon the face of the bill, whether for misjoinder, non- joinder, or insufficiency of fact to constitute a valid cause of action in equity, which might heretofore have been made by demurrer or plea, shall be made by motion to dismiss or in the answer; and every such point of law going to the whole or a material part of the cause or causes of action stated in the bill may be called up and disposed of before final hearing at the discretion of the court. Every defense heretofore present- able by plea in bar or abatement shall be made in the answer and may be separately heard and disposed of before the trial of the principal case in the discretion of the court. If the defendant move to dismiss the bill or any part thereof, the motion may be set down for hearing by either party upon five days' notice, and, if it be denied, answer shall be filed within five days thereafter or a decree pro confesso entered." (3 TJ. S. Comp. Stats. 1916, 1536, p. 2508; Foster's Federal Practice, 5th ed., pp. 455, 458, 485, 508, 562, 623, 630, 765, 786, 836, 1118, 1174; Simkins' Federal Equity Suit, 3d ed., pp. 128, 129, 200, 204, 261, 296, 301, 310, 311, 362, 375, 386, 394, 395, 398, 399, 402, 404, 405, 407, 411, 412, 414, 416, 418, 419, 421, 426, 431, 442, 452.) 901. Separate Hearing of Answer as a Plea. Under Rule 29, motion to dismiss will be denied where the case is on the calen- dar, and defendant invokes the record of other cases in such a way 385 ANSWER AS A PLEA. Ch. 40, 902 that they must be treated as proofs. But upon the call of the case the plea will be heard upon such record as may be offered before taking testimony in support of the main issue. (Bogert v. Southern Pac. Co. (E. D. N. Y.), 211 Fed. 776.) 902. Answer as a Plea may be Disposed of Either as an Issue of Law or of Mixed Law and Fact. "Demurrers are now abolished by Rule 29. The question of whether the bill on its face avers such facts as ' constitute a valid cause of action in equity' can now be raised by a 'motion to dismiss' the bill, or it may be raised in the answer. Under Rule 29, when raised by motion to dismiss, the motion may be set down for hearing upon five days' notice. "When raised by answer, it may be disposed of by the court as a matter of pleading, or a trial question, in the discretion of the court In this case the question has been raised by answer. "It has thus been taken out of the domain of questions of pleading and has been transferred to the domain of trial ques- tions. This docs not preclude the respondents at the trial of the case from raising the question at the outset as if it were a question of pleading, for the reason that it would be idle to go on with the trial of the case when the result of it could be determined at the outset. "There is a distinction, however, between disposing of the question as a trial question and disposing of it as a question of pleading either on a demurrer, as under the old practice, or on a motion to dismiss, under the present practice. The distinction is this : Cases disposed of upon demurrers in form must necessarily be decided according to the record as it then stands, and the same thing is true of a motion to dismiss under the present rules. When the question is raised as a trial ques- tion, then, as on all questions of like character raised in the trial of the case, the plaintiff may move to amend his record, and if the amendment is allowed, and no surprise is pleaded, the trial proceeds upon its trial merits without regard to the old state of pleadings. The distinction referred to, therefore, involves a right of the complainants, which is, or at least may be, of very great practical value." (Alexander v. Fidelity Trust Co. (E. D. Pa.), 214 Fed. 495, 497.) Manual 25 903, Ch. 40 _ MANUAL OP FEDERAL PROCEDURE. 386 On motion for a preliminary injunction which was granted, questions of law as to exoneration and a principle of governmental policy were raised. The court in discussing future disposition of the case in the pleadings said, page 299: "As demurrers in equity have been abolished, the real ques- tion intended to be raised by the defendants can be raised only under Rule 29. This must be either on motion called up and disposed of in the discretion of court, or on motion set down for hearing upon five days' notice. If counsel representing all the parties are in accord upon the suggestion that the case be finally disposed of as if upon demurrer, they may by stipu- lation, or by conforming strictly with the requirements of Rule 29, put the case in formal shape to be finally ruled." (Southwestern Surety Ins. Co. v. Wells. (E. D. Pa.), 217 Fed. 294.) 903. Answer as a Plea Should Also Show Defendant's Other Defenses Should Set Out Defendant's Whole Defense. "On motion by complainants under Equity Rule 29 for de- cision of points of law in respect to the cause or causes o.f action stated in the bill, raised by portions of the answer of defendants or some of them. Motion granted." (Boyd v. New York & H. R. Co. (S. D. N. Y.), 220 Fed. 174, 175.) Page 178: "The pleadings are under the equity rules of February 1, 1913, and each answer contains matter tendering issues of law. Complainants have thereupon made this motion. "The matter specified in the notice of motion may in part be described with accuracy, in terms of the old practice. The Central has demurred generally to the whole bill. "All the defendants have asserted by answer that private complainants cannot in this form of action avail themselves/ of the prohibitions of the Sherman Act, and all assert that the consolidation of the Harlem and Central is not within the purview of the statute. With some hesitation I think these contentions would formerly have been raised by motion to expunge. "These probable equivalents are referred to only as aids in passing from old to new ; for, if the modern practice is worthy of acceptance, its excellence will not arise from doing only 387 ANSWER AS A PLKA. Ch. 40, ( Jl)3 the old things under new names. The new method must show itself a better, quicker, more far-reaching instrument for as- certaining truth; otherwise it were folly to trouble ourselves with new names. "There is nothing novel in embodying and presenting legal propositions in an answer, and the points thus presented may be every degree of importance. "What is new is the obligation on defendant to show all his propositions at once, whether of fact or law, and let oppo- nent and court consider whether, in view of the facts alleged, any of the legal theories propounded can profitably be con- sidered before testimony taken; or by taking merely such evi- dence as has heretofore been often adduced in support of a plea. "Evidently this casts a burden upon judicial discretion hitherto unknown. Many a judge has heard in succession a demurrer, a plea or two, and several motions before getting to an answer, and never seen, nor thought he had a right to see, the whole defense at a glance. Whether the panorama now afforded is real reform depends almost altogether on how sympathetically and skillfully the new procedure is adminis- tered. That early efforts will sometimes be mistakes is to be expected. "This case affords opportunity and imposes necessity of considering at least two points, which are of importance to the scheme of procedure, and not merely in this litigation : (1) Where an answer asserts that the bill states no case, can any fact allegations of defendant's pleading be considered? (2) When defendants raise legal propositions going to less than complainant's whole case, what test can be suggested to guide the court in deciding whether to consider or decline the points in advance of final hearing? "On the first point, it seems to me clear that, when defend- ant alleges that complainant shows no case at all, he cannot complain if the court considers any admission or allegation of the answer which explains or enlarges (but does not contra- dict) the bill of complaint. "One who 'demurs generally' nowadays must be understood to do so, not only on what complainant shows, but also after having had his own conscience purged. Thus only is avoided the old and bad habit of trying everything else before stating facts. 904, Ch. 40 MANUAL OF FEDERAL PROCEDURE. 388 "Similarly, where one defendant demurs after stating his own actions or position, and other defendants deny knowledge regarding the first defendant, any relief to which complainant is entitled on the statement of No. 1 will not be stayed by His fellow's lack of knowledge. "For these reasons I have above recited the Central's admis- sions as to consolidation, and feel free to act on them, notwith- standing the ignorance of the other answers. "On the second query, I am of opinion that no legal point (going to less than the whole case) should be decided in ad- vance of final hearing, unless such decision will add to or eliminate from the case a clearly defined and easily stated mass of testimony, the presence or absence of which will not change or affect the method of presenting the other aspects of the litigation. "Applying this to the case at bar, it seems advisable now to pass upon the applicability of the Sherman Act, because the propositions of complainant evidently require much expen- sive fact evidence for ultimate solution, which (if defendants are right) it will be useless to prepare and present." (Boyd v. New York & H. R. Co. (S. D. N. Y.), 220 Fed. 174, 178, 179, 180.) 904. On Sustaining of Plea Court will Dismiss the Bill. "The district court sustained the pleas to the jurisdiction as to the cause of action based on trademark and unfair competi- tion, but allowed a replication to be filed to the plea in respect to the cause of action on infringement, This was the proper practice under old Rule 33, then in force. The issue on the plea was tried and the court sustained the plea and dismissed the bill. This is the proper practice under new 'Rule 29." (W. S. Tyler Co. v. Ludlow-Saylor Wire Co. (2d Cir.), 212 Fed. 156, 129 C. C. A. 12.) 389 TO OBTAIN BETTEB STATEMENT. Ch. 41, 920-923 CHAPTER 41. TO OBTAIN FURTHER AND BETTER STATEMENT OR PARTICULARS. SEO. 920. Definiteness and Certainty Rule 20. 921. Bill of Particulars. 922. Is a Matter of Discretion. 923. Cannot be Used to Obtain Information of Facts Which are Matters of Expert Testimony. 924. Can be Used to Narrow the Issues by Requiring Defendant to Particularize. 920. Definiteness and Certainty Rule 20. Equity Ride 20. " (Further and particular statement in pleading may be required.) A further and better statement of the nature of the claim or defense, or further and better particulars of any matter stated in any pleading, may in any case be ordered, upon such terms, as to costs and otherwise, as may be just." (3 U.' S. Comp. Stats. 1916, 1536, p. 2502 ; Foster's Federal Practice, 5th ed., pp. 485, 788; Simldns' Federal Equity Suit, 3d ed., pp. 275, 355, 359, 436, 454.) 921. Bill of Particulars. Where defendants believe that they cannot safely proceed to trial without a more complete statement of complainants' alleged grievances, a bill of particu- lars may be required as provided by Equity Rule 29. (Williams v. Pope (W. D. N. Y.), 215 Fed. 1000.) 922. Is a Matter of Discretion. "A rule for a bill of particulars is an appeal to the discre- tion of the court, and this appeal will be granted or refused according to the circumstances." (Gimbel Bros. v. Adams Express Co. (E. D. Pa.), 217 Fed. 318.) 923. Cannot be Used to Obtain Information of Facts Which are Matters of Expert Testimony. Plaintiff and defendant each entered motions for further particulars of answer and bill. The court said: 924, Ch. 41 MANUAL OP FEDERAL PROCEDURE. 390 "The motion of the plaintiff is likewise overruled. Where the answer sets up the existence of some concrete thing which may be made the subject of an exhibit as a publication, draw- ing, photograph, or device which is claimed to be an anticipa- tion of the patented device, and which is proposed to be made the subject of expert testimony, the plaintiff may fairly ask to have it submitted in advance to the inspection of ' expert witnesses for the plaintiff. If a request for opportunity to make this inspection be denied, or if what is offered in evi- dence differs from what was submitted for inspection, the , present rules furnish the means of preventing a plaintiff from being taken by surprise. "Rule 48 would furnish all the information which could fairly be asked, and there would seldom be occasion to resort to it. The discretion of the trial judge can readily afford all the additional protection required." (Todd v. Whitaker (E f . D. Pa.), 217 Fed. 319, 320.) 924. Can be Used to Narrow the Issues by Requiring De- fendant to Particularize. In sustaining a motion to require de- fendant to make its answer more definite and certain, the court said: "This cause came on for hearing upon the motion of the plaintiff that the defendant be required to make its answer more definite and certain, by setting forth in what respects each of the patents pleaded by reference in paragraph 8 of the answer discloses any of the elements or combinations of elements described in plaintiff's letters patent, and in what respect they negative the novelty and invention of the device shown and described in complainant's letters patent set forth in the bill of complaint. "This court is in entire sympathy with this motion, believ- ing, as we do, that the pleading objected to by the motion does not conform to the provisions of Equity Rule No. 30, requir- ing the defendant in its answer to set out its defense to each claim asserted by the bill in short and simple terms. It seems to me to be the purpose of rule to establish in equity cases substantially the rule of pleading provided by such Codes as that of the state of Ohio, the requirement of which with respect to the answer in a case either at law or in equity is that it shall contain a general or specific denial of each ma- terial allegation controverted by the defendant, and a state- 391 TO OBTAIN BETTER STATEMENT. Ch. 41, 924 ment in ordinary and concise language of any new matter constituting a defense, counterclaim, or setoff. "It is the practice in patent cases for counsel to refer to a great number of patents as showing the state of the prior art upon which the claims of invalidity and limited scope of the patent sued upon are based, and when the case comes to trial it is usual to find counsel relying upon only a very small num- ber of such patents, and often upon one, or at most a few of the many features contained in them. . . . "It is plain that from this manner of pleading it results that a trial court has no guide whatever, when hearing oral testimony, for determining what is relevant and what not relevant to the issue, when the state of the prior art is relied upon as a defense. It is obvious, also, that under the former practice there were means of defining the issues before the hearing which do not exist under the new practice, and I am convinced that it was the purpose of the new rules to require that counsel shall so study the patents upon which they intend to rely that in their pleadings they can state in short and simple terms just what they claim with respect to them, rather than to defer such study until after a record is made up of volumes of irrelevant matter, and then, by study and analysis, to pick out what is essential to a decision of the case. "Counsel defending against this motion say that the prac- tice followed in this answer conforms to the practice which has prevailed in this court for more than a score of years. This is no doubt true, but the very purpose of these new equity rules is to change this former practice, because it has been found to be expensive to litigants, burdensome to courts, and a fruitful source of delay of justice. It is also urged that it is for the court to determine whether the patents referred to, or any of them, by their disclosures negative novelty or invention. With this the court cannot agree, but is of opinion that it is for the court to determine whether the claims prop- erly made in the pleadings in a case with respect to patents referred to negative novelty or invention, and that the new rulas require this changed manner of pleading, to the end that such claims shall be more clearly defined in the pleadings than heretofore, so that, when cases are called for trial in open court, both judge and counsel may be definitely advised as to just what the claims of the respective parties are. "Counsel . . . contend that until the plaintiffs shall so far disclose their position thnt the defendant may know whether 924, Ch. 41 MANUAL OF FEDERAL PROCEDURE. 392 they intend to claim that all of the parts in the construction involved are old, but that the combination itself is new, or whether they intend to contend that the claims of the patent relied upon are valid, because they specify either some new element or some new form of an old element, etc., the defend- ant should not be required to specify what particular defen- sive patent will be relied upon, or what particular thing in the evidence of the prior art will be relied upon as the final reason that the claims of the plaintiff's patent are invalid. "To this claim of counsel the answer suggests itself that the timely interposing of a motion might have secured a suffi- cient definition of the claims of the plaintiffs in the bill to have enabled the defendant to know just what case it is to meet. This court cannot refrain from observing in this con- nection that the old notion that a suit at law or in equity is chiefly a game affording an opportunity for the matching of wits of counsel and for the exercise of the ingenuity of courts is fast giving place to the conception that suits both at law and in equity should be sincere and candid attempts to reach the real point of difference between the parties to them, and to secure a just settlement of such difference. "With this now current conception of a suit in equity in mind, it seems to this court that the application of the new equity rules to patent cases should command the cordial sup- port and assistance of the bar, without which, of course, judges will be in large part powerless to give them full effect. It may be that there is much in the claim often made that the new equity rules cannot be successfully applied to pleading in patent cases, but several judges throughout the country, notably in the Southern district of New York and in Massa- chusetts, are making a determined effort to give the applica- tion of them to such cases a fair trial. With this effort this court is in entire sympathy, both from its conviction that it is its duty to give effect to these rules prescribed by the Su- preme Court of the United States, and also because of its con- viction that their application to such cases will greatly curtail the extent of records made up in them, and so the expense to litigants, and will result in a genuine reform, leading to a more prompt decision of cases, and also to a larger measure of justice in the determination of them. Delay of decision and excessive cost often defeat justice." (Coulston v. H. Franke Steel Range Co. (N. D. Ohio E. D.), 221 Fed. 669.) 393 STKIKING OUT REDUNDANT MATTER. Ch. 42, 930-931 CHAPTER 42. STRIKING OUT REDUNDANT, IMPERTINENT OR SCANDALOUS MAT- TER UNDER RULE 21. SEC. 930. Striking Out Rule 21. 931. Illustration of Impertinent Matters. 932. Illustration of Scandalous Matters. 933. Error in Striking must be Corrected by Appeal and not by Mandamus. 930. Striking Out^-Rule 21. Equity Ride 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 mo- tion or its own initiative, order any redundant, impertinent, or scandalous matter stricken out, upon such terms as the court shall think fit." (3 U. S. Comp. Stats. 1916, 1536, p. 2502; Foster's Federal Practice, 5th ed., pp. 786, 808; Sim- kins' Federal Equity Suit, 3d ed., pp. 310, 348, 423, 434.) Under Equity Rule 21 exceptions to pleadings for scandal or impertinence no. longer obtain, but such matter may be stricken out by the court. (Williams v. Pope (W. D. N. Y.), 215 Fed. 1000.) 931. Illustration of Impertinent Matters. In a suit for in- fringement of letters patent, the defendant pleaded in its answer as a defense and as a counterclaim damages for unfair conduct of the complainant in respect to other patents; threatening of defendant's customers and a conspiracy in violation of the Sher- man Law. This was claimed the right to do under new rule in equity 30, but Judge Veeder in the District Court, upon com- plainant's motion, struck these sections out of the answer as being impertinent. (Lovell-McConnell Mfg. Co. v. Bindrim (2d Cir.), 219 Fed. 533, 534, 135 C. C. A. 283. See, also, Nikola Tesla Co. v. Marconi Wireless Tel. Co. (S. D. N. Y.), 227 Fed. 903, 904.) 932-933, Ch. 42 MANUAL OF FEDERAL PROCEDURE. 394 932. Illustration of Scandalous Matters. ''Where a bill charged fraudulent conduct against an at- torney, without stating any facts to support the charge, such charge is scandalous, and should be stricken from the bill." (Crim v. Rice (2d Cir)., 232 Fed. 570, 146 C. C. A. 528.) 933. Error in Striking must be Corrected by Appeal and not by Mandamus. Equity Rule 21 abolishes exceptions, but au- thorizes the court, either upon motion or of its own initiative, to strike out impertinent matter, and a mistake in doing so is one of law which can be corrected only by appeal from the final decree and not by mandamus. (Lovell-McConnell Mfg. Co. v. Bindrim (2d Cir.), 219 Fed. 533, 535.) 395 DISCOVERY. Ch. 43, 940 CHAPTER 43. DISCOVERY. SEO. 940. The Equity Rule No. 58. 941. Alters Procedure not Principles of Discovery. 942. Not a Part of the Pleadings and Waiver of Answer Under Oath Does not Relieve from Answering Interrogatories. 943. General Prayer for Discovery in Bill not Sufficient Interrogatories Should be Filed. 944. Purpose of Rule 58 is to Obtain Discovery of Facts Material to Plain- tiff's Case or to Defendant's Defense, not Evidentiary Matters, nor a Bill of Particulars. 945. Matters Disclosed in the Answer Material to Plaintiff's Case are Subject to Interrogatories. 946. Interrogatories as to Writings as a Basis for Call for Productions. 947. Best Evidence Rule Applicable to Interrogatories. 948. Interrogatories may not be Used to Discover Evidence. 949. Interrogatories may not be Used to Require Opinion nor Expert Testi- mony. 950. Interrogatories may Test Contested Infringement. 951. A Witness is not Subject to Interrogatories. 952. As to Form of Objections to Interrogatories. 940. The Equity Rule No. 58. Equity Rule 58. "(Discovery Interrogatories Inspec- tion and production of documents Admission of execution or genuineness.) The plaintiff at any time after filing the bill and not later than twenty-one days after the joinder of issue, and the defendant at any time after filing his answer and not later than twenty-one days after the joinder of issue, and either party at any time thereafter by leave of the court or judge, may file interrogatories in writing for the discovery by the opposite party or parties of facts and documents ma- terial 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^X tli an one set of interrogatories to the same party without leave r" of the court or judge. 940, Ch. 43 MANUAL OF FEDERAL PROCEDURE. 396 "If any party to the cause is a public or private corpora- tion, any opposite party may apply to the court or judge for an order allowing him to file interrogatories to be answered by any officer of the corporation, and an order may be made accordingly for the examination of such officer as may appear to be proper upon such interrogatories as the court or judge shall think fit. "Copies shall be filed for the use of the interrogated party and shall be sent by the clerk to the respective solicitors of record, or to the last known address of the opposite party if there be no record solicitor. "Interrogatories shall be answered, and the answers filed in the clerk's office, within fifteen days after they have been served, unless the time be enlarged by the court or judge. Each interrogatory shall be answered separately and fully and the answers shall be in writing, under oath, and signed by the party or corporate officer interrogated. Within ten days after the service of interrogatories, -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 de- ferred 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 interrogatories or to effect the inspection or pro- duction of documents in the possession of either party and containing evidence material to the cause of action or defense of his adversary. Any party failing or refusing to comply with such an order shall be liable to attachment, and shall also be liable, if a plaintiff, to have his bill dismissed, and, if a defendant, to have his answer stricken out and be placed in the same situation as if he had failed to answer. "By a demand served ten days before the trial, either party may call on the other to admit in writing the execution or genuineness of any document, letter or other writing, saving all just exceptions; and if such admission be not made within five days after such service, the costs of proving the document, letter or writing shall be paid by the party refusing or neglect- ing to make such admission, unless at the trial the court shall find that the refusal or neglect was reasonable." (3 U. S. 397 DISCOVERY. Ch. 43, 941-943 Comp. Stats. 1916, 1536, p. 2520; Foster's Federal Practice, 5th ed., 348, p. 1120; Simians' Federal Equity Suit, 3d ed., pp. 292, 390, 498, 507, 520, 525.) 941. Alters Procedure not Principles of Discovery. "E'quity Rule 58 is not intended to change the substantive rules of equity as to discovery, but merely to alter proced and the interrogatories authorized thereunder are such only as tend to establish complainant's case." (Speidel Co N. Barstow Co., 232 Fed. 617.) tive ure, mly . v. 942. Not a Part of the Pleadings and Waiver of Answer Under Oath Does not Relieve from Answering Interrogatories. Under Equity Rule of Practice 58, providing for the filing of in- terrogatories by either party at any time after filing the bill or answer, and not later than twenty-one days after the joinder of issue, for discovery from the party of facts and documents neces- sary to the support or defense of the cause, when construed with the rules prescribing the pleadings, and in view of the recog- nized purpose of the rules to simplify pleading and expedite the taking of testimony and the final hearing, the interrogatories are no longer part of the pleadings, as they formerly were, and a waiver of oath to the answer does not relieve the defendant from answering the interrogatories. (Luten v. Camp (E. D. Pa.), 221 Fed. 424.) In the case last cited the court said: "The purpose of Rule 58 was to provide for a simple prac- tice equally open to either party for interrogating the other without such interrogatories becoming part of the pleadings." 943. General Prayer for Discovery in Bill not Sufficient Interrogatories Should be Filed. "Rule 58 provides for discovery upon filed interrogatories. I cannot see that any question of discovery is involved upon the present motion merely by reason of the fact that there is a general prayer for discovery in the bill." (Webb v. Samuels (S. D. N. Y.), 227 Fed. 948.) 9-M, Ch. 43 MANUAL OF FEDERAL PROCEDURE. 398 944. Purpose of Rule 58 is to Obtain Discovery of Facts Material to Plaintiff's Case or to Defendant's Defense, not Evi- dentiary Matters, nor a Bill of Particulars. "Under this rule [58] the plaintiff's right of discovery ex- tends only to facts resting in the knowledge of the defendant or documents in his possession material to the support of the plaintiff's case; and the defendant's correlative right of dis- /covery, only to facts and matters material to his defense; ana y neither is entitled to discovery of an inquisitorial character ( as to the ground of action or defense of the other; although^ as theretofore, the right to such discovery. as to matters mate- rial to the cause of action or defense of the interrogating party will not be defeated by the fact that such matters also involve the ground of defense or action of the interrogated party. ' ' This construction of the rule is, I think, emphasized by the fact that the plaintiff is given the right to file interroga- tories at any time after his bill is filed, although the answer may not have yet been filed, and at a time when the interroga- tories can relate only to his own cause of action ; while, on the other hand, the defendant is given no right to file interroga- tories until after his answer has been filed, thus indicating that the discovery to which he is entitled is to relate to the ground of defense set forth in the answer, and not to the"\ plaintiff's cause of action, as to which the interrogatorias might have been filed before the answer, if such right had : been contemplated by the rule. Furthermore, the concluding^ 1 phrase in the language of the rule as above quoted, providing that the court or judge may make such orders as may be ap- propriate to enforce answers to interrogatories or the produc- tion of documents 'in the possession of either party and con- taining evidence material to the cause of action or defense of his adversary,' clearly shows, from its grammatical construc- tion, that the matters as to which a discovery may be obtained must be 'material to the cause of action or defense of the in- terrogating party, the 'adversary' clearly referred to in the ruje. t* "This construction of the rule furthermore finds strong support by analogy, in the fact that under state statutes au- . | thorizing the examination of parties before trial at the in- / stance of the adverse party, operating as a substitute for / 399 . DISCOVERY. Ch. 43, 944 discovery in equity, such examination will not be permitted to enable the examining party 'to ascertain' the evidence on' which the opposite party bases his cause of action or defense, or to ascertain the names of his witnesses, or for the purpose of aiding the party in the preparation of his case for trial.' 14 Cyc. 342 ; ancTcases cited in notes 37, 38 and 39. "So under statutes providing for the production of books or papers of the adverse party, production will not be per- mitted to enable a party 'to ascertain the evidence on which his opponent's action or claim rests, unless the claim is made that they are forgeries and the inspection is sought to enable the party to prove that fact.' 14 Cyc. 371, and cases cited in notes to 59 and 60. 'But where the books or documents are material to the case of the applicant, it is no objection to their production or inspection that they relate also to the case of his adversary.' 14 Cye. 371, and cases cited in note 6. "This construction of the rule is not, as I view it, in con- flict with the decisions in Luten v. Camp, 221 Fed. 424, and Blast Furnace Appliances Co. v. Worth Bros. Co., 221 Fed. .430, in which the discovery allowed related directly to facts and documents within the knowledge or possession of the in- terrogated party, which were material to the ground of action or defense of the interrogating party. And taking this view"" of the rule I cannot agree in the correctness of the doctrine which may apparently be implied from the opinions in Bronk v. Scott Co.l7tVCir.) ; 211 Fed. 338, 128 C. C. A. 17, and P. M. Co. v. Ajax Rail Anchor Co., 216 Fed. 634, to the effect! that under this rule either party may require discovery as to \ the nature of his adversary's case, the claims which he makes in regard thereto and the facts supporting it. These' cases apparently proceed, in part at least, upon the implied theory that the object of the rule is to enable either party to obtain a more definite statement of the other's case and greater par- ticularity as to the claims upon which he intends to rely ; whereas I am constrained to conclude from the language of the rule itself that it was not intended to serve as a provision for requiring further particulai\s. which is covered by the 20th Equity Rule, but to accomplish the very different purpose of enabling either party to obtain discovery of facts and docu- ments material to his own rasp which are within the knowl- edge or in the possession of the adverse party. 945-948, Ch. 43 MANUAL OF FEDERAL PROCEDURE. - 400 "It is furthermore clear that to the extent that discovery may be granted as to material matters of fact, it must be lim- ited to an inquirylis to the material facts, and does not extend to a disclosure of evidence or facts which merely tend to prove the material facts. P. M. Co. v. Ajax Bail Anchor Co., 216 Fed., at page 636; Luten v. Camp, 221 Fed., at page 428." (J. H. Day Co. v. Mountain City Mill Co. (E. D. Tenn. S. D.), 225 Fed. 622, 623, 624.) 945. Matters Disclosed in the Answer Material to Plaintiff's Case are Subject to Interrogatories. Under Equity Rule 58, per- mitting a plaintiff to file interrogatories for discovery within twenty-one days after the joinder of issues, when that rule is construed in connection with the purpose of the rules to simplify the pleadings and expedite the production of proof, matters dis- closed in the answer material to plaintiff's case may be made the subject of interrogatories. (Blast Furnace Appliances Co. v. Worth Bros. Co. (E. D. Pa.), 221 Fed. 430.) 946. Interrogatories as to Writings as a Basis for Call for Production. Plaintiff might also inquire as to whether the license was in writing and the date thereof, and for the corre- spondence relating thereto, in order that he might call for its production. (Blast Furnace Appliances Co. v. Worth Bros. Co. (E. D. Pa.), 221 Fed. 430.) 947. Best Evidence Rule Applicable to Interrogatories. "Interrogatories as to the precise showing by line's, letters, figures, and characters on blue-prints are improper, since the prints themselves are the best evidence, and, if in the posses- sion of the defendants, their production may be compelled by order of the court." (Luten v. Camp (E. D. Pa.), 221 Fed. 424.) 948. Interrogatories may not be Used to Discover Evidence. "In regard to the interrogatories which were filed under Rule 58 of the equity rules, either party has a right to require the other to answer questions relating to material matters. 401 DISCOVERT. Ch. 43, 949 This rule was in substance taken from order 31 of the English equity rules of practice, which has been in force for a consid- erable time, and has been construed and applied in very many English cases. It is well settled by these decisions that the disclosure of evidence is not required. The nature of the case and the facts supporting it may be required to be stated. Mere evidence or facts tending to prove the nature of the case, or the facts upon which it is based, are quite generally held not proper to be inquired into. Marriott v. Chamberlain, 17 Q. B. 1). 154; ITooton v. Dalby (1907), 2 K. B. 18." (P. M. Co. v. Ajax Rail Anchor Co. (N. D. 111. E. D.), 216 Fed. 634, 636.) Under Equity Rule of Practice 58, entitling plaintiff to a dis- covery of facts material to the support of the cause, and author- izing the court or judge to make orders for the production of documents in the possession of either party containing evidence material to the cause of action or defense of the other party, a party may interrogate his adversary as to the facts on which his cause of action is based, but not as to mere evidence or facts tending to prove the nature of the case, or facts tending to prove the main facts. (Luten v. Camp (E. D. Pa.), 221 Fed. 424.) Interrogatories as to notice to the inventor of the commence- ment, completion and use of the infringing furnace is not a fact material to the support of the plaintiff's cause, but is merely evi- dentiary on the issue of the existence of the license from the in- ventor, and is not a proper subject of inquiry. (Blast Furnace Appliances Co. v. Worth Bros. Co. (E. D. Pa.), 221 Fed. 430.) 949. Interrogatories may not be Used to Require Opinion nor Expert Testimony. It is improper to propound interroga- tories requiring a comparison between the blue-prints and the plaintiff's plans, which is a matter for expert testimony, or to be determined by inspection of the documents at the trial, and ia merely evidentiary, and not a fact in support of plaintiff's case. (Luten v Camp (E. D. Pa.), 221 Fed. 424.) Manual 2 949, Ch. 43 MANUAL OP FEDERAL PROCEDURE. 402 "The second, third, and fourth interrogatories inquire as to the opinion of the complainant as to the construction of the patent. This is a matter to be supplied by expert testi- mony in support of the contention of infringement, or the validity of the patent, or both. It is a matter purely eviden- tiary, and one which within the English rule, and the proper construction of Rule 58 cannot be inquired into. The same considerations apply to interrogatories 5, 6, and 7, inquiring whether complainant has manufactured devices under its patent, whether it has any interest in other patents, and whether it considers defendant's device to infringe any such other patents. These questions all relate to evidence of cir- cumstances or facts tending to prove some contention of de- fendant, supposedly the one set up in the sixth paragraph of the answer, which is to be struck out. The eighth and ninth interrogatories, inquiring whether complainant contemplates bringing other patent suits, and whether it had knowledge of one of the letters pleaded in the answer, should be treated in the same way." (P. M. Co. v. Ajax Rail Anchor Co. (N. D. 111. E. D.), 216 Fed. 634, 636.) A party will not be required to answer interrogatories pro- pounded under Equity Rule 58, where they suggest a "fishing expedition," or at least an attempt to pry into the adversary's case. The court said: "Rule 58 was not intended to be used to impose unreason- able burdens upon parties, or to require of parties opinions either as to the reading of drawings or as to the functions of particular parts of the machinery. It provides 'for the dis- covery, by the opposite party or parties, of facts and docu- ments material to the support or defense of the cause.' Plainly it is intended to aid a party in making out his case, _.-,, where the ascertainment of facts in support or defense of the cause is difficult. We have used the word 'difficult,' because we have recognized that there is a line of cases holding to the doctrine that discovery will not be permitted if the facts can be otherwise procured. We do not believe that that is a correct expression of the law, because a party should not be put to unnecessary labor or difficulty in making out his case. Yet he should not impose a burden upon the opposite party in requiring the latter to make discovery, if the knowledge of 403 DISCOVEEY. Ch. 43, 950 the facts can be procured otherwise with ease. Knowledge of the apparatus and method of the opposite party can be procured with ease by inspection. If there be identity of the plaintiffs' and defendant's apparatus and methods, such iden- tity can be easily ascertained, and be the subject of parol testimony by those who have made such inspection." (Win- dow Glass Machine Co. v. Brookville Glass & Tile Co., 229 Fed. 833, 836.) 950. Interrogatories may Test Contested Infringement. "The general purpose of Rule 58 is to expedite the decision of causes by eliminating the necessity for inquiry into the un- controverted features of what is included in the issues as made up of record. The rule embraces all material inquiries. One of them here is the fact of infringement. The answer denies infringement. It also denies the existence of any pro- prietary right. The plaintiff must prove infringement. If it be not a contested fact, it can be admitted before trial. In- terrogatories will test this. Any material inquiry, subject to the qualification next noted, may therefore be made, the effect of an answer to which may narrow the field of controversy at the trial. The distinction between facts and judgment from the facts, and between facts to be proven and evidentiary facts, so clearly expressed by Judge Thompson in Luten v. Camp (D. C.), 221 Fed. 424, and Blast Furnace Appliances Co. v. Worth Bros. Co. (D. C.), 221 Fed. 430, must be kept in mind." (Rodman Chemical Co. v. E. F. Houghton Co., 233 Fed. 470, 471.) In Blast Furnace Appliances Co. v. Worth Bros. Co. (E. D. Pa.), 221 Fed. 430, the court held that in a suit to enjoin in- fringement of a patent by the construction of a second blast fur- nace from plans furnished by the inventor for the first furnace, where the defendant pleaded a setoff on account of defects in the plans for the first furnace, plaintiff may interrogate defendant as to u'hat payments were made for the first plaiis and when. Where defendant pleaded a license from the inventor, plaintiff might interrogate him as to the date of the construction of the furnace, in order to fix the date of the infringement, and also as bearing upon the question of license. 951-952, Ch. 43 MANUAL OP FEDERAL PROCEDURE. 404 Plaintiff may also ask for the production of the drawings fur- nished for the first furnace and of the corrections made therein, from which drawings the second furnace was constructed. In a suit against a county, a bridge contractor, and a bridge designer, to restrain an infringement of a patent for reinforced concrete construction, proof that the contract for the bridge and the blueprints contained therein infringed the patent, and that they were prepared or adopted by the defendants, is necessary to establish the right to relief, and plaintiff can therefore in- terrogate the defendants in relation thereto. (Luten v. Camp (E. D. Pa.), 221 Fed. 424.) 951. A Witness is not Subject to Interrogatories. A mere witness not a party to a suit cannot be compelled to answer in- terrogatories attached to the bill. (First State Bank of Milliken v. Spencer (8th Cir.), 219 Fed. 503, 135 C. C. A. 253.) 952. As to Form of Objections to Interrogatories. The rule does not provide for any particular form of objections. In P. M. Co. v. Ajax Rail Anchor Co. (N. D. 111. E. D.), 216 Fed. 634, 635, complainant objected to all the interrogatories and moved that they be stricken out, on account of impertinence and immate- riality. Below is given a form containing various suggestive objec- tions to interrogatories. 405 DISCOVERY. CJi. 43, 052 In the United States restrict Court for the Southern Division of the Southern District of California. Florence Black, Plaintiff, v. James Smith, Defendant. In Equity No. OBJECTIONS TO PLAIN-HIT'S INTERROGATORIES. Comes now the, defendant James Smith and mafceg objections to the inter- rogatories propounded by plaintiff as follows, to wit: To Interrogatory No. 1, on the ground that the facts sought rest as much in the knowledge of plaintiff as of defendant; that the interrogatory is of an inquisitorial character and the facts sought are not material to the support of plaintiff's case, but said Interrogatory is intended to anticipate the defense of the statute of limitations. To Interrogatory No. 2, on the ground that the facts sought are not ultimate facts, or material to the support of plaintiff's case, and the allegations of the plaintiff in respect to the facts if true are not difficult to be proven by other evidence. To Interrogatory No. 3, on the ground that the disclosure is sought of facts which would merely tend to prove other facts, and is not material to plaintiff's case, or if material may be reached by demand to admit the genuineness of the instrument mentioned in the interrogatory. To Interrogatory No. 4, as seeking disclosure of evidence not the best evidence. ' To Interrogatory No. 5, as calling for opinion evidence and for facts which are the subject of expert testimony. To Interrogatory No. 6, on the ground that said interrogatory is inquisi- torial, irrelevant and premature. To Interrogatory No. 7, as calling for a bill of particulars. To Interrogatory No. 8, on the ground that said interrogatory is too broad, and is inquisitorial. To Interrogatory No. 9, as being impertinent, inquisitorial and not material to plaintiff's case. To Interrogatory No. 10, as being too broad, and further, as being inquisi- torial and as. seeking to ascertain evidence on which the defendant may base his defenses, and because the facts sought to be elicited are not material to plaintiff's case, are merely evidentiary and irrelevant. Wm. Brown, Solicitor for Defendant. 960, Ch. M MANUAL OF FEDERAL, PROCEDURE. 400 CHAPTER 44. THE ANSWER AS A TRAVERSE. SEO. 960. General Statement. 961. Some Differences in Answers in Federal and State Courti. 962. Answer as Such is not Evidence. 963. Time for Answer. 964. Contents of Answer. 965. Rules as to Form of Answer. 966. Amendment's. 967. Attacks upon Answer. 968. Reply When Required When Oause at Tssne. 969. Setting Down for Hearing on Bill and Answer. 970. Supplemental Answer. 960. General Statement. The similarity of the provisions of the new equity rules that took effect February 1, 1913, to the code provisions of the several states that have adopted the re- form procedure, is especially marked with respect to the answer in equity. Under Rule 18 technical forms of pleading are abol- ished. Under Rule 29, defenses formerly presentable by pleas or demurrers must be contained in the answer, though they may be separately heard. Rule 30 provides for specific denials, de- nials on lack of knowledge, admission of averments not denied, amendments on notice when justice requires and allows incon- sistent defenses, setoffs, and counterclaims in the answer. There has been much hesitation on the part of the profession to discard the old forms in framing answers as well as in draw- ing bills. In the case of Pittsburg Water Heater Co. v. Beler Water Heater Co. (W. D. Pa.), 222 Fed. 950, 952, 953, the courts commented on this matter as follows: "It is natural, when bills in equity are drafted without re- gard to the equity rules, that answers should be drawn with equal inattention to the provisions of such rules. Without going into the answer in this case at length, it is sufficient to 407 ANSWKB AS A TRAVERSE. Ch. 44, 9G1-962 say that it is not in accord with Rule 30, in that it does not set forth 'in short and simple terms,' the matters of defense. As an illustration it is only necessary to refer to the fact that eight lines of the printed answer are used to reserve to de- fendant some supposed benefit by reason of the manifest im- perfections of the plaintiff's bill. The real defenses to the bill are that Shook was not the first and original inventor and that there was no infringement." 961. Some Differences in Answers in Federal and State Courts. 1. Points of law raised by demurrer or plea in state practice now may be set out in the answer under Equity Rule 29 and may be separately heard and disposed of before trial of the principal case in the discretion of the court. (See chapter 40, "Answer as a Plea.") 2. Counterclaim covers matters pleaded in state courts by cross-bill or cross-complaint. 3. No general denial. 4. No verification unless special relief pending suit sought. 962. Answer as Such is not Evidence. The answer is no longer evidence, except possibly as containing admissions on the part of the defendant. Under the old chancery practice the answer was considered as evidence because the testimony of a party was not admissible on the ground that interest made him incompetent. The reason -for making the answer evidence disappeared with the change of practice authorized by 858, Rev. Stats., providing that "in the oonrts of the United States no witness shall be excluded in any action . . . because he is a party to or interested in the issues tried." The new rules conform to the present conditions, the revision omitting or changing all that existed in the old rules supporting the proposition. Thus old Equity Rule 59, providing for verifi- cation of the answer, has been superseded by new Rule 30, which 963, Ch. 44 MANUAL OF FEDERAL PROCEDURE. 403 provides for the verification of "every pleading which is required to. be sworn to by statute, or these rules." Old Equity Rule 41. "Answer, when not evidence," is not contained in the new rules. So, also, there has been omitted from the revision old Rules 42, 43 and 44, relating to answering interrogatories contained in the bill. New Equity Rule 58 is the only relic of the old chancery practice requiring defendants to answer under oath. The answer could not be evidence under the new rules, as Equity Rule 30 provides: "The answer may state as many de- fenses, in the alternative, regardless of consistency, as the de- fendant deems essential to his defense." In the event of plead- ing of inconsistent defenses, if the answer were evidence, there would be a conflict of evidence. 963. Time for Answer. Unless the defendant files within twenty days after service of the subpoena some "other defense" as permitted by Equity Rules 12 and 16, or "unless the time shall be enlarged for cause shown, by a judge of the court" un- der Rule 16, it is the duty of the defendant to file an answer. tinder Rule 29, "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 within five days thereafter, or a decree pro con~ fesso entered." Equity Rule 32 provides for the answer to amended bill as follows: "In every case where an amendment to the bill shall be made after answer filed, the defendant shall put in a new or supplemental answer within ten days after that on which the amendment or amended bill is filed, unless the time is enfarged or otherwise ordered by a judge of the court; and upon his de- fault, the like proceedings may be had as a case of an omission to put in an answer." 409 ANSWER AS A TRAVERSE. Ch. 44, 964 964. Contents of Answer. Part Rule 29. ' ' Every defense in point of law arising upon the face of the bill, whether for mis joinder, nonjoinder, or insufficiency of fact to constitute a valid cause of action in equity which might heretofore have been made by demurrer or plea, shall be made by motion to dismiss or in the answer. . . . 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 principal case in the discretion of the court." (3 U. S. Comp. Stats. 1916, 1536, p. 2508; Foster's Federal Practice, 5th ed., pp. 455, 458, 485, 508, 562, 623, 630, 765, 786, 836, 1118, 1174; Sim- kins' Federal Equity Suit, 3d ed., pp. 32, 35, 36, 122, 124, 128, 129, 200, 204, 261, 296, 301, 310, 311, 362, 375, 386, 394, 395, 398, 399, 402, 404, 405, 407, 411, 412, 414, 416, 418, 419, 421, 426, 431, 442, 452.) Equity Rule 30. Answer contents counterclaim. "The defendant in his answer shall in short and simple terms set out his defense to each claim asserted by the bill, omitting any mere statement of evidence and avoiding any general denial of the averments of the bill, but specifically admitting or denying or explaining the facts upon which the plaintiff relies, unless the defendant is without knowledge, in which case he shall so state, such statement operating as a denial.. Averments other than of value or amount of damage, if not denied, shall be deemed confessed, except as against an infant, lunatic, or other person non compos and not under guardian- ship. The answer may be amended, by leave of the court or judge, upon reasonable notice, so as to put any averment in issue, when justice requires it. The answer may state as many defenses, in the alternative, regardless of consistency, as the defendant deems essential to his defense. "The answer must state in short and simple form any coun- terclaim 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 pro- nounce a final judgment in the same suit both on the original 9G5, Ch. 44 MANUAL OF FEDERAL PROCEDURE. 410 and cross claims."' (3 U. S. Comp. Stats. 1916, 1536, p. 2509; Foster's Federal Practice, 5th ed., pp. 624, 628, 630, 681, 683, 686, 695, 697, 703, 716, 729, 1060; Simkins' Federal Equity Suit, 3d ed., pp.- 283, 285, 362, 375, 394, 395, 411-413, 421-428, 429-431, 436-438, 444-449, 451-455.) Chapter 45, post^ deals with the "Counterclaim and Setoff" provided for in the last section of Equity Rule 30, above quoted. In Pittsburg Water Heater Co. v. Beler Water Heater Co. (W. D. Pa.), 222 Fed. 950, the court said: "It seems, therefore, a proper inference from the provi- sions of the equity rules with respect to oaths to portions of the record other than the answer, and the omission of the requirement of an oath to an answer, that an answer in equity need not now be made under oath. ' ' 965. Rules as to Form of Answer. Equity Rule 18 provides : "Unless otherwise prescribed by statute or .these rules, the tech-' nical forms of pleading in equity are abolished." Under Equity Rule 24, the answer is required to 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 instruction 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 interposed for delay." There is no provision as to verification. If the answer contains a counterclaim or setoff which seeks special relief pending the suit, the counterclaim or setoff should be verified by analogy to the fifth subdivision of Rule 25, pro- viding: "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. " Incase the pleading is verified, Equity Rule 36 provides for the officers before whom the same may be done, as follows: "Every pleading which is required to be sworn to by statute, or these rules, may be verified before any justice or judge of any court of the United 411 ANSWER AS A TRAVERSE. Ch. 44, 966-967 States, or of any state or territory, or of the District of Colum- bia, or any clerk of any court of the United States, or of any territory, of the District of Columbia, or any notary public." Equity Rule 78 provides for an affirmation in lieu of an oath where the party has conscientious scruples against taking an oath. 966. Amendments. By Equity Rule 30, above quoted (964), it is provided that "the answer may be amended by leave of the court or judge upon reasonable notice, so as to put any averment in issue when justice requires it." By Equity Rule 33, an answer setting up an affirmative de- fense, setoff, or counterclaim, "if found insufficient but amend- able, the court may allow an amendment upon terms or strike out the matter." 967. Attacks upon Answer. Further and particular state- 'ment may be required. Equity Rule 20. "A further and better statement of the nature of the claim or defense, or further and better particu- lars 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." (Chapter 41, supra.) Redundant, impertinent, or scandalous matter may be stricken out. Equity Rule 21. "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." (Chapter 42, supra.) The sufficiency of the defense may be tested by a motion to strike out. Equity Rule 33. "Exceptions for insufficiency of. an an- swer are abolished. But if an answer set up an affirmative defense, set-off, or counterclaim, the plaintiff may, upon five 968-970, Ch. 44 MANUAL OF FEDERAL PROCEDURE. 412 days' notice, or such further time as the court may allow, test the sufficiency of the same by motion to strike out. If found insufficient but amendable the court may allow an amendment upon terms, or strike out the matter." (3 U. S. Comp. Stats. 1916, 1536, p. 2511; Foster's Federal Practice, 5th ed., pp. 786, 787; Simkins' Federal Equity Suit, 3d ed., pp. 432, 435.) Chapter 46, post, deals with this "Motion to Strike Out." 968. Reply When Required When Cause at Issue. Equity Rule 31. "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 mat- ter 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 allowed 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 there- of, and 'ten days shall be accorded to such defendants for filing a reply. In default of a reply, a decree pro confesso on the counterclaim may be entered as in default of an answer to the bill." (3 U. S. Comp. Stats. 1916, 1536, p. 2511.) 969. Setting Down for Hearing on Bill and Answer. "Where complainant sets a cause down for hearing on bill and answer, all allegations of the answer well pleaded are admitted, and only questions of law are presented for deter- mination." (City of Wichita v. Wichita Water Co. (8th Cir.), 222 Fed. 789, 138 C. C. A. 3>37.) 970. Supplemental Answer. Equity Rale 34, as to supple- mental pleading, applies as well to answers as to bills. See chapter 32 above. 413 COUNTERCLAIM AND SETOFP. Ch. 45, 980 CHAPTER 45. COUNTERCLAIM AND SETOFP. BEO. 980. Counterclaim and Setoff Under Second Paragraph Equity Rule 30. 981. Illubtration of Counterclaim Growing Out of Same Transaction Un- fair Competition. 982. Setoff or Counterclaim Subject of an Independent Equity Suit Against Plaintiff. 983. Cross-bill Abolished. 984. Counterclaim may not be Used to Bring in New Parties nor for Intervention. 985. Unliquidated Damages Unless Arising Out of the Transactions In- volved are not Matters of Counterclaim. 986. Effect of Failure to Plead Counterclaim or Setoff. * 980. Counterclaim and Setoff Under Second Paragraph Equity Rule 30. 2d Par. Equity Rule 30. "The answer must state in short and simple form any counter-claim arising out of the trans- action which is the subject matter of the suit, and may, with- out cross bill, set out any set-off or counter-claim against the plaintiff which might be the subject of an independent suit in equity against him, and such set-off or counter-claim, so set up shall have the same effect as a cross-suit, so as to enable the court to pronounce a final judgment in the same suit, both on the original and cross-claims." (3 U. S. Comp. Stats. 1916, 1536, p. 2509; Foster's Federal Practice, 5th ed., pp. 624, 628, 630, 681, 683, 686, 695, 697, 703, 716, 729, 10GO; Simkins' Federal Equity Suit, 3d ed., pp. 283, 285, 362, 375, 394, 395, 411, 412, 413, 421, 422, 423, 424, 425. 426, 428, 429, 431, 432, 433, 434, 436, 437, 438, 444, 445, 446, 447, 448, 449, 451, 452, 453, 454, 455.) This short paragraph is the only federal authority that recog- nizes counterclaims and setoffs, for prior to the adoption of the new equity rules the only relief that could be sought in an answer was the dismissal of the bill. Affirmative matter could not be set 980, Ch. 45 MANUAL OP FEDERAL PROCEDURE. 414 up in the answer, but was required to be pleaded by cross-bill. The federal decisions relating to federal procedure, therefore, do not define counterclaims and setoffs, the federal statutes do not provide for them, nor do the new rules except that above quoted, and Rule 31 providing for replies to counterclaims or setoffs, and Rule 33 for testing the sufficiency of same by a motion to strike out. The rule designates two kinds of counterclaims: (1) Those "arising out of the transaction which is the subject matter of the suit"; (2) those "which might be the subject of an independent suit in equity against" plaintiff. The second kind of a counterclaim is broad enough to include matters "connected with the subject of the action" though not necessarily "arising out of the transaction which is the subject matter of the suit." It is broader than and includes that kind of cross-claim which is known as a "setoff, " which term seems to be merely an alternative expression for "counterclaim." There is a large group of states which make a distinction be- tween setoff and counterclaim, the setoff being used to set out independent or external matters as the subject of a cross-claim, while in another group of states, the term "setoff" is not used, but there are two kinds of counterclaims, the second kind of which correspond to the "setoff" above mentioned. (Pomeroy's Code Remedies, 4th ed., p. 835.) That the term "setoff" is merely an alternative term for "counterclaim" is borne out by the fact that the rules always use these terms in the alternative with the disjunctive "or." In Rule 30, "set out any setoff or counterclaim," and again, "and such setoff or counterclaim." In Rule 31, "unless the answer asserting setoff or counterclaim," and again, "if the answer include a set- off or counterclaim," and the rule also provides for a decree pro confesso on the counterclaim, but does not mention such a decree in connection with setoff. 415 COUNTERCLAIM AND SETOPP. Cll. 45, <)S1 981. Illustration of Counterclaim Growing Out of Same Transaction Unfair Competition. "Plaintiff having brought a suit in this district thereby sub- jected itself to any counterclaim or set-off which is fairly within the Equity Rule above quoted. The counterclaims pleaded in the answer grow out of the very same transactions and matters covered by the original bill. The three patents referred to in the answer upon expansion bolts are all along the same line, and the question of unfair competition is inti- mately connected with the rights of the respective parties under these patents. These matters ought to be all disposed of in one suit, as they relate to questions very closely con- nected together. It is probable that a decision may be reached in this district long before it could be had in the Southern district of New York or in the Supreme Court of the state of New York, where the unfair competition suit is pending. It seems to me that the ends of justice will be promoted by allowing these interrogatories and counterclaims to stand, and have the whole matter in the suit between these parties de- cided at any early date." (United States Expansion Bolt Co. v. H. G. Kroncke Hardware Co. (W. D. Wis.), 216 Fed. 186, 189.) Dismissal of Plaintiff's Bill on the Merits Does not Affect Defendant's Counterclaim for Unfair Competition. In Buffalo Specialty Co. v. Vancleef (N. D. 111.), 217 Fed. 91, which is quoted more fully in 982 below, the court allowed a counterclaim for unfair competition as being the subject of an independent suit in equity against plaintiff and held that dismissal of the bill on the merits did not affect the counterclaim. Matters of unfair competition which do not grow out of the transaction which is the subject matter of the suit cannot be set up as a counterclaim in a suit between citizens of the same state, because by itself it would have no federal ground of jurisdiction to support it. In Electric Boat Co. v. Lake Torpedo Boat Co. (D. N. J.), 215 Fed. 377, the court held that the word "transaction," as so used, embraced both the right and the breach of it, together with the 982, Ch. 45 MANUAL OF FEDERAL PROCEDURE. 416 various occurrences that make up each; and hence, in a suit be- tween citizens of the same state, where complainant sued for in- fringement of certain patents, defendant was not entitled to set up as a counterclaim damages for unfair competition and alleged malicious prosecution, consisting of matters occurring before the facts on which complainant relied occurred and independent thereof. 982. Setoff or Counterclaim Subject of an Independent Equity Suit Against Plaintiff. Equity Rule 30 provides that the answer "may, without cross-bill, set out any setoff or counterclaim against the plaintiff which might be the subject of an independent suit in equity against him." Does this setoff or counterclaim include other matters than that which formerly could have been set up by cross-bill ? The cross-bill under the former practice has been confined to matters germane to the purposes of the bill. It was required to be connected with it in some way. The use of the term "setoff" indicates separate unconnected extrinsic cause of action, and would seem to be much broader. Since the foregoing portion of the text was written for the first edition of this manual many decisions have been published adopt- ing the liberal view of the rule. On the other hand, a large num- ber of opinions adopt a strict construction and confine the counter- claim or setoff to matters germane to the bill. In Electric Boat Co. v. Lake Torpedo Boat Co. (D. N. J\), 215 Fed. 377, the court held that the word "cross-bill" was used as synonymous with "cross-suit" and cross-claim, so that the limita- tion on what counterclaims may be set up is not that it must have arisen out of the transaction which is the basis of the original bill, but that the subject matter is such as might be the subject of an independent suit in equity against the complainant, and hence, in a suit for infringement of a patent, defendant may set up in its answer a counterclaim for infringement by complainant of a dif- 417 COUNTERCLAIM AND SETOFF. Ch. 45, 982 ferent patent unrelated to the transaction and made the basis of complainant's bill. In Harper Bros. v. Klaw (S. D. N. Y.), 232 Fed. 609, 611, Judge Hough said: "Prior to the present rules in equity defendants would have been obliged to file a cross-bill, if they had sought to obtain the relief here demanded. Whether such a cross-bill as this could be sustained under Lautz v. Gordon (C. C.), 28 Fed. 264, and Hogg v. Hoag (C. C.), 107 Fed. 807, and 154 Fed. 1003, 83 C. C. A. 677, is a point on which muph learning (probably useless) might be expended. It is my opinion that Rule 30 in equity has deliberately and wisely enlarged tEe function of a cross-bill, now called a counterclaim. ... "It is in my opinion now proper to do what these defend- ants have done; i. e., deny the equity of plaintiffs' bill, ground such denial on the language of a written document, and serve a counterclaim to prevent plaintiffs from violating said contract as understood by defendants. It is proper to do this, even though it cannot be said that the matter of the counterclaim, cross-suit, or cross-bill is merely auxiliary to the original suit. It is enough that in the language of the present rule the counterclaim shows something 'which might be the subject of an independent suit in equity against' the plaintiffs." (Harper Bros. v. Klaw (S. D. N. Y.), 232 Feel. 609, 611.) In Buffalo Specialty Co. v. Vancleef et al. (N. D. 111.), 217 Fed. 91, at page 93, the court said: " "It will be seen that rule 30 requires defendant to set up any counterclaim which arises out of the transaction forming the subject matter of the bill, but allows without requiring him to set up any equitable counterclaim or set-off which might be the subject of an independent suit by defendant against plaintiff. The language is perfectly clear: If defend- ant has an independent cause of action in equity against plain- tiff, he may counterclaim it. If any corroboration of this view were needed, it is found in the fact that the Supreme Court, in adopting the rule, omitted the last clause of the English rule which restricts counterclaims to those which can be conveniently disposed of and those which ought to be al- Mannal 27 982, Cb. 45 MANUAL OF FEDERAL PROCEDURE. 418 lowed. Not only was any set-off or counterclaim which may be the subject of an independent suit included, but an excep- tion was rejected. Moreover, it has always been held by the English courts that independent causes of action, wholly un- connected with the claim, of the plaintiff, may be counter- claimed. Birmingham Estates Co. v. Smith, 13 Ch. D. 506, 509. Nor is a counterclaim to be excluded because plaintiff is a foreigner who could not be sued in England. By invok- ing the jurisdiction, he consents to be sued there by counter- action, unless plaintiff be a sovereign, not suable without its consent. Griendtovan v. Hamlyn & Co., 8 L. T. R. 231; Strousberg v. Costa Rica Republic, 29 W. R. 125, Ch. App. ; Imperial Japanese Govt. v. Peninsular & Oriental etc. Nav. -Co. (1895), A. C. 644, P. C. Nor is the amount recoverable by counterclaim limited by the jurisdiction of the court (Amon v. Babbett, 22 Q. B. D. 543, Ch. App.), unless objec- tion is made by giving written notice, as required by the Judiciary Act of 1873. By adopting the English rule, its construction in England is adopted, at least to the extent of excluding construction at variance with plain and explicit language. Under such circumstances, the clear meaning of the words should not be rejected on account of supposed in- convenience in applying the rule. "It is said in argument that it could not have been the intention of the rule to compel a nonresident plaintiff to sub- mit to cross-suits in districts foreign to his residence, and thus run counter to express statutes, like section 51 of the Judicial Code, or the Act of March 3, 1897, c. 395, relating to place of suit. Section 51 provides that civil suits, other than those of diverse citizenship, shall only be brought in the district where defendant inhabits, the others only in the district of the residence of either party. The act of 1897 applies only to patent cases, and provides that the court shall have jurisdic- tion only in the district where defendant inhabits, or where he has committed infringement and has an established place of business. But these acts do not relate to the general juris- diction of the district court, only to the power of the particu- lar court to proceed. They give defendant a privilege which he may waive. If the counterclaim defendant (original plain- tiff) raises the question of jurisdiction at the outset, and succeeds, defendant may have a speedy decision of this ques- 419 COUNTERCLAIM AND SETOFP. Ch. 45, 982 tion by the Supreme Court. Whatever the decision may be affects the scope of rule 30, not its construction. "It is true that the weight of authority in the construc- tion of the new rule limits its scope to counterclaims which might formerly have been made the subject of a cross-bill. Terry Steam Turbine Co. v. B. F. Sturtevant Co. (D. C.), 204 Fed. 103; Williams Patent Crusher etc. Co. v. Kinsey Mfg. Co. (D. C.), 205 Fed. 375; Adamson v. Shaler (D. C.), 208 Fed. 566; Klauder-Weldon Dyeing Mach. Co. v. Giles (D. C.), 212 Fed. 452; Sydney v. Mugford Printing etc. Co. (D. C.), 214 Fed. 841. To the contrary are Marconi Wire- less Tel. Co. v. National Elec. Signaling Co. (D. C.), 206 Fed. 295; Salt's Textile Mfg. Co. v. Tingue Mfg. Co. (D. C.), 208 Fed. 156; Vacuum Cleaner Co. v. American Rotary Valve Co. (D. C.), 208 Fed. 419; and Electric Boat Co. v. Lake Torpedo Boat Co., 215 Fed. 377. The cases supporting a limited application of the rule proceed upon the theory that it was not intended to change the substantive law providing what could be treated as a set-off or -counterclaim prior to the rule (Judge Thomas, 214 Fed. 841), and that the words 'shall have the same effect as a cross-suit' mean to limit the counterclaim to what might have been brought in by cross- bill. These words are adopted from the English rule, except that 'cross-suit' is there 'cross-action.' Why not give them the settled construction of the English courts? As Judge Chatfield says in the Marconia case: 'Here we have a delib- erate use of new terms covering any "independent suit in equity" to have the result of a "cross-suit," and yet to be pleaded "without cross-bill." "The contrary view is strongly argued by Judge Dodge in the Terry Case, Judge Geiger in the Adamson Case, and Judge Thomas in the Sydney Case. But the new equity rules were conceived in a most liberal spirit, and I think the one in question should be given its manifest meaning, so as to allow all mutual claims in equity to be set off or opposed, as is done under the English practice. I have examined many English decisions under order 19, and am convinced that the rule has there worked justly. It has been given a broad and liberal construction but has not been extended (as its terms prohibit) to cases so incongruous as to be incapable of trial with the original suit. Bartholomew v. Rawlings, W. N. 56 ; Huggons v. Tweed, 10 Ch. D. 359; Compton v. Preston, 21 983, Ch. 45 MANUAL OF FEDERAL PROCEDURE. 420 Ch. D. 138. Such an exception may also properly be applied under rule 30, since the rule relates only to equitable causes of action. If it would be inequitable to subject the plaintiff to the defense of an incongruous cross-action, surely the court would decline jurisdiction. I am convinced, therefore, that the dismissal of the bill had no effect on the counterclaim for unfair competition. The Electric Boat Company Case con- tains an able discussion of the construction of the words of the rule." 983. Cross-bill Abolished. The only reference in the index of the equity rules to the cross-bill reads as follows: "Cross-bill counterclaim to be stated in answer, and not by." The only reference in the rules to the cross-bill is in Equity Rule 30, pro- viding that the defendant "may, mthout cross-bill, set out any setoff or counterclaim against the plaintiff which might be the subject of an independent suit in equity against him." The fed- eral statutes and the new equity rules do not provide for the procedure in the event of the filing of a cross-bill, and the evident intent is that a counterclaim or setoff should be used, instead of cross-bill. Since the above was first written the court held in the case of In re Grand Union Co. (2d Cir.), 219 Fed. 353, 135 C. C. A. 237, that Rule 30 obviates the necessity of filing a cross-bill, and affirm- ative relief may now be asked in the answer. The new counterclaim and setoff seem to cover all or almost all which could have been pleaded by the cross-bill under the former practice. The purposes of the cross-bill were as follows : 1. Affirmative relief. As the only prayer of the answer under the old practice was for dismissal of the bill, the cross-bill was the only method of obtaining affirmative relief. The new rule provides that the "setoff 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." There can be no doubt but that under Rule 30, the reformation of an instrument sued upon may be sought by the defendant on the ground of mistake or fraud, or that the defend- 421 COUNTERCLAIM AND SETOFP. Ch. 45, 983 ant could set up usury, or pray that an agreement be surrendered which is sought to be specifically enforced. In fact, these are matters arising out of the transaction which is the subject matter of the suit, and must be set out in the answer, and not by cross-bill. 2. Discovery. The cross-bill is no longer necessary for discov- ery in aid of an answer, as Equity Rule 58 now provides for the filing of interrogatories in writing for the discovery, by the opposite party or parties, of facts and documents material to the support or the defense of the cause. This was also true under the old rules, but the old rules by old Equity Rule 72 recognized the right of defendant to obtain discovery by cross-bill by requiring an answer to the original bill before the plaintiff was compelled to answer the cross-bill. Old Equity Rule 72 is now abolished, and there is no recognition of the cross-bill in the new rules except the permission to set up matters without a cross-bill. 3. To set up new matter arising after issue joined. Under the old practice it was not possible to set up new matter by a supple- mental answer. Old Rule 46 as to supplement pleading referred to the bill only. Therefore it was necessary to set up this new matter by cross-bill. This is no longer necessary, because the new Equity Rule 34 provides for a supplemental answer as well as a supplemental bill. Equity Rule 34. "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 plead- ing, alleging material facts occurring after his former plead- ing, or of which he was ignorant when it was made, including the judgment or decree of a competent court rendered after the commencement of the suit determining the matters in con- troversy or a part thereof." (3 U. S. Comp. Stats. 1916, 1536, p. 2512; Simkins' Federal Equity Suit, 3d ed., pp. 366, 368, 370, 371, 376, 438, 439.) 4. Means of defense. The cross-bill is no longer necessary to set up matters which could not be pleaded in the answer, because 983, Ch. 45 MANUAL OP FEDERAL PROCEDURE. 422 the answer is now of such a broad character that defensive matters which were formerly barred may now be included under the pro- vision of Equity Rule 30, which reads: "The answer may state as many defenses, in the alternative, regardless of consistency, as the defendant deems essential to his defense. ' ' Hence, a discharge in bankruptcy; an agreement or conveyance, or matters purely legal, could be set up in an original or a supplemental answer. 5. To settle conflicting claims between the defendants. The new rule provides for two distinct kinds of counterclaims: (1) "Any counterclaim arising out of the transaction which is the subject matter of the suit"; (2) "any setoff or counterclaim against the plaintiff which might be the subject of an independent suit in equity against him." The second kind of counterclaim would not cover conflicting claims among the defendants themselves, as the rule specifically states that the setoff or counterclaim is "against the plaintiff." Equity ilule 31 provides: "If the answer includes a set-off or counterclaim, the party against whom it is asserted shall reply within ten (10) days after the filing of the answer, unless a longer time be allowed by the court or judge." The party men- tioned is evidently the plaintiff, as other defendants ought to be given notice of a counterclaim affecting them before being re- quired to reply to same. The first kind of counterclaim mentioned, one, "arising out of the transaction which is the subject matter of the suit," evidently may affect the rights of others than the plaintiff, for Equity Rule 31 provides with respect to this class of counterclaim, "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 (10) days from the filing thereof, and ten (10) days, shall be accorded to such defendant for filing a reply." It would therefore seem that conflicting claims between the defendants arising out of the transaction which i$ the subject mat- ter of the suit could be litigated by counterclaim. 423 COUNTEfeCLAm AND SETOPP. Cb, 45, 984 6. For a complete determination of all matters affected by the bill. That this is the intent of the rule as is indicated by the language that "such set-off or counterclaim, so set up, sliall have the same effect as a cross suit, so as to enable the court to pro- nounce a final judgment in the same suit both on the- original and cross claims." 984. Counterclaim may not be Used to Bring in New Parties nor for Intervention. An injunction was sought against owner of patent to restrain him from terrorizing the trade through a succession of threats, etc. Parties interested in the patent sought to intervene to file counterclaims for infringement of the patent, being the infringement asserted by defendant in its conduct, which is the subject matter of the suit. The court held new Equity Rules 30 and 37 do not permit one who is not a necessary or proper party to the determination of the issues in the case to intervene by counterclaim. (Atlas Under- wear Co. v. Cooper Underwear Co., 210 Fed. 347, 355.) In United States v. Woods (8th Cir.), 223 Fed. 316, 138 C. C. A. 578, the court held that Equity Rule 30, providing that the answer may, without cross-bill, set out any setoff or counterclaim against the plaintiff which might be the subject of an independent suit in equity against him, does not authorize the filing of a cross-bill in a suit by the government on behalf of the Creek Indians to cancel conveyances of allotted lands, which bill prayed that in- dividuals claiming an interest in the lands adverse to defendant be joined as parties and required to litigate their claims. (Page 317.) "The general rule is that new parties cannot be introduced into a cause by a cross-bill; that only parties to the original bill, plaintiffs or defendants, can be made parties to a cross-bill. If the plaintiff desires to make new parties, he amends his bill and in that way introduces them. If the defendant requires the presence of parties other than those named in the original bill, he complains of a nonjoinder by answer, and plaintiff is then forced to amend or the bill may be dismissed. Such is the general rule in equity." 985-986, Ch. 45 MANUAL OF FEDERAL PROCEDURE. 424 985. Unliquidated Damages Unless Arising Out of the Transaction Involved are not Matters of Counterclaim. In Williams v. Adler Goldman Commission Co. (8th Cir.), 227 Fed. 374, 142 C. C. A. 70, it was sought to interpose counterclaims for unliquidated, damages in a suit by creditors to set aside a convey- ance as fraudulent. The court said: (Page 378.) "The great per cent in number and amount of items set up in the counterclaim are for unliquidated dam- ages and could not 'be the subject of an independent suit in equity,' and none of the items arise 'out of the transaction which is the subject matter of the suit.' Equity Rule 30." 986. Effect of Failure to Plead Counterclaim or Setoff. The rule provides that "the answer must state . . . any counter- claim arising out of the transaction which is the subject matter of the suit." This would seem to preclude setting up such matter thereafter, as under the rule stated in this form, the issues would necessarily be involved and therefore res adjudicata. The text is now supported by Portland Wood Pipe Co. v. Slick Bros. Const. Co. (D. Idaho), 222 Fed. 528. In that case the court held that in a suit by a nonresident of the district to foreclose a mechanic's lien, in which the contractor and a subcontractor, resident citizens of the district, are made defendants, and the subcontractor by a cross-bill asserts a lien upon the property, the court has jurisdiction over a counterclaim by the contractor against the subcontractor for moneys advanced and supplies furnished the subcontractor on account during the progress of, and for use in carrying on, the work, though the amount of the counterclaim exceeds the amount due the subcon- tractor, and has jurisdiction to render judgment against the sub- contractor for the balance, under the rule that, where the court has jurisdiction of the controversy exhibited by the complaint, it may assume jurisdiction to adjudicate incidental issues raised by cross- bills between defendants, regardless of citizenship or the amount in dispute, especially in view of Equity Rule 30, providing that the answer must state in short and simple form any counterclaim 425 COUNTERCLAIM AND SETOFF. Ch. 45, 986 arising out of the transaction which is the subject matter of the suit, and Rev. Codes Idaho, section 4185, providing, relative to counterclaims arising out of the transaction set forth in the com- plaint as the foundation of plaintiff's claim, that if defendant omit to set up such a counterclaim, he cannot afterward maintain an action against the plaintiff therefor. The rule provides also that the "answer may^ without cross-bill, set out any setoffs or counterclaims against the plaintiff which might be the subject of an independent suit in equity against him." The use of the verb in the permissive form would indi- cate that as to such matters the defendant would not afterward be barred from proceeding by an independent suit in equity on his claim. It has been generally held that, in the absence of ex- press statutory provisions to the contrary, the failure to plead these matters does not bar them, and no such effect is given by the statutes authorizing the counterclaim. In code states the defendant may elect to set up his cross-demand as a counterclaim, or may not do so, but may set up and maintain a separate action upon it. (Pomeroy's Code Remedies, p. 938, eases cited.) 1000-1001, Ch. 46 MANUAL OF FEDERAL PROCEDURE. 426 CHAPTER 46. MOTION TO STRIKE OUT. SEO. 1000. Equity Rule 32 Motion to Strike Out Five Day Notice. 1001. Illustrative Case of Motion to Strike Out Defense as Insufficient. 1002. Form of Motion to Strike Out. 1000. Equity Rule 33 Motion to Strike Out^-Five Day Notice. Equity Rule 33. "(Testing sufficiency of defense.} Ex- ceptions for insufficiency of an answer are abolished. But if an answer set up an affirmative defense, setoff or counter- claim, the plaintiff may, upon five days' notice, or such fur- ther time as the court may allow, test the sufficiency of the same by motion to strike out. If found insufficient but amendable the court may allow an amendment upon terms, or strike out the matter." (3 U. S. Comp. Stats. 1916, 1536, p. 2511; Marconi Wireless Tel. Co. v. National Electric Sig- naling Co., 206 Fed. 295, 301; Sydney v. Mugford Printing etc. Co., 214 Fed. 841; Shera v. Merchants' Life Ins. Co., 237 Fed. 484, 485.) This is a new rule superseding old rules 61, 63, 64. 1001. Illustrative Case of Motion to Strike Out Defense as Insufficient. The bill was brought to foreclose builder's or mechanic's statutory lien. The owner's amended answer set up claim of noncompliance with Florida statute as to foreign cor- poration filing its articles of incorporation. After the evidence closed the owner filed amendment to show noncompliance until the date of the contract and commencement of the work. Plain- tiff submitted motion to strike out. Motion denied and bill dis- missed. On appeal the case was reversed, the court stating: "Before the allowance of the last-mentioned amendment, the only allegation of the owner's answer as to a noncom- pliance by the plaintiff with the Florida foreign corporation 427 MOTION TO STRIKE OUT. Ch. 46, 1002 statute was one which was not supported by the evidence adduced. Without further pleading by the plaintiff, that allegation was to be deemed to be denied by it. Equity Rule 31 (198 Fed. xxvii, 115 C. C. A. xxvii). . . . The aver- ments of the last-mentioned amendment to the answer failed to show that the plaintiff was under a disability to acquire contractual rights throughout the period in which the aver- ments of the bill and the evidence supporting them showed that such rights were accruing to it. In other words, the averments of that amendment did not show the existence of a state of facts constituting a defense to the bill as a whole. The sufficiency of the defense set up by that plead- ing was properly tested by a motion to strike out. Equity Rule 33." (Turner Construction Co. v. Union Terminal Co. (5th Cir.), 229 Fed. 702, 704, 705, 144 C. C. A. 112.) 1002. Form of Motion to Strike Out. [Title of Court.] MOTION TO STRIKE OUT COUNTERCLAIM AS INSUTFICIENT. [Title of Case.] Plaintiff moves to strike out defendant's counterclaim on the ground that same does not state facts sufficient to constitute a counterclaim against this plaintiff under Equity Rule 30. John Brown, Solicitor for Plaintiff. ' 1010-1011, Ch. 47 MANUAL OF FEDERAL. PROCEDURE. 428 CHAPTER 47. REPLY. SEO. 1010. Equity Rule 31 Reply to Setoff or Counterclaim Issue. 1011. The Scope of the Reply. 1010. Equity Rule 31 Reply to Setoff or Counterclaim- Issue. Equity Rule 31. " (Reply When required When cause at issue.) 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, un- less a longer time be allowed by the court or judge. If the counterclaim is one which affects the rights of other defend- ants they or their solicitors shall be served with a copy of same within 10 days from the filing thereof, and ten days shall be accorded such defendants for filing a reply. In default of a reply, a decree pro confesso on the counterclaim may be en- tered as in default of an answer to the bill." (3 U. S. Comp. Stats. 1916, 1536, p. 2511; Foster's Federal Practice, 5th ed., pp. 615, 624, 695, 698; Simkins' Federal Equity Suit, 3d ed., pp. 355, 386, 415, 428, 440, 445, 451, 491.) 1011. The Scope of the Reply. Rule 31, quoted 1010 above, does not require a reply without special order of .the court or judge, unless the answer assert a setoff or counterclaim. Necessarily the ''reply" contemplated by this rule transcends the scope of the "replication" used when the defendant's plead- ing was limited to the controversy forming the basis of the plain- tiff's complaint, and includes that which would be an answer and counterclaim under Rule 30. (Electric Boat Co. v. Lake Torpedo Boat Co., 215^Fed. 377.) Matter of confession and avoidance does not require a reply. (Shera v. Merchants' Life Ins. Co., 237 Fed. 484, 486.) 429 DEPOSITIONS. Ch. 48, 1020 CHAPTER 48. DEPOSITIONS. no. 1020. Depositions Rules 47, 54 and 55. 1021. Not "Good and Exceptional Cause" to Avoid Several Days in Trial. 1022. Time for Taking Depositions Rule 47 Governs Unless Conflicting With 863, Eev. Stats., et seq. 1023. Extending Time. 1020. Depositions Rules 47, 54 and 55. Equity Rule 47. "(Depositions To be taken in excep- tional instances.) The court, upon application of either party, when allowed by statute, or for good and exceptional cause for departing from the general .rule, to be shown by affidavit, may permit the deposition of named witnesses, to be used before the court or upon a reference to a master, to be taken before an 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 depositions; and rebutting depositions by either party within twenty days after the time for taking original .depositions expires." Equity Rule 54. " (Deposition under Rev. Stats., 863, 865, 866, 867 Cross-examination.) After a cause is at issue, depositions may be taken as provided by 863, 865, 866 and 867, Revised Statutes. But if in any case no notice has been given the opposite 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 under all the circumstances shall order." 1021-1022, Ch. 48 MANUAL OP FEDERAL PROCEDURE. 430 Equity Rule 55. " (Deposition deemed published when fled.} 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." 1021. Not "Good and Exceptional Cause" to Avoid Several Days in Trial. "Good and exceptional cause for departing from the general rule" requiring the testimony of witnesses to be taken orally in open court is not shown merely by the fact that a trial will probably occupy several days. (North v. Herrick, 203 Fed. 591.) 1022. Time for Taking Depositions Rule 47 Governs Unless Conflicting With 863, Rev. Stats., et seq. Although it is held that Rule 47 was not intended to vary or limit 863, Rev. Stats. (Iowa Washing Machine Co. v. Montgomery Ward & Co. (S. D. N. Y.), 227 Fed. 1007), and the ruling in Victor Talking Machine Co. v. Sonora Phonograph Corp., quoted below, is not followed in Iowa Washing Machine Co. v. Montgomery Ward & Co. cited just above and by other courts, it is well to note the reasoning and opinion in Victor Talking Mach. Co. v. Sonora Phonograph Corp. (S. D. N. Y.), 221 Fed. 676, 677, 678, as follows: "These rules, with others, were designed to expedite the progress of suits in equity. After the lapse of time under the rules, the cause is automatically placed on the calendar, and any departure from the automatic action of the rules in var- ious respects may be had only when 'otherwise ordered by the court or judge for good cause shown. ' If, therefore, after the time expiration, it becomes necessary to take depositions, there is no difficulty in making a proper presentation to the court or judge and obtaining an appropriate order. "It is urged, however, that Rule 47 cannot limit the time of taking depositions, in view of section 863 of the United States Rev. Stats., and that, where the witness is one within the purview of that section, a deposition may be taken after the time prescribed in Rule 47. But Rule 47 refers, among other things, to 'all depositions taken under a statute,' and, as it must be assumed that the Supreme Court was construing 4,11 DEPOSITIONS. Ch. 48, 1023 (among others) section 863, the validity of the rule is, of course, conclusive upon this court. I see nothing in Rule 54 inconsistent with Rule 47 ; nor do I read Henning v. Boyle (C. C.), 112 Fed. 397, and In re National Equipment Co., 195 Fed. 488, 115 C. C. A. 398 (decided prior to February 1, 1913), as contrary to the conclusion now stated. "In the suits at bar, plaintiff gave notice of the taking of depositions on December 20, 1913, some six months after issue was joined. Neither Rule 47 nor Rule 1 of this court was complied with. Defendant promptly and clearly notified plaintiff that it objected to this taking of testimony by deposi- tion, that its counsel would not attend, and that it would move, at the trial, to strike out the testimony thus taken and for further germane relief. Nevertheless plaintiff proceeded and, in doing so, it took chances. There was nothing further which defendant was called upon to do. It might have waited until the trial, but, instead, has moved now, and, even if laches were an answer (which I doubt), there is none in this case. "If I have construed the rule correctly, I may add that, on the facts in this case, I doubt the power to make an order nunc pro tune. If the matter is one of discretion, I think it would be an abuse of discretion to allow, over objection, an order nunc pro tune which would abrogate the rule, upon the observance of which defendant had the right to rely. The motion to suppress the fact depositions is granted." 1023. Extending Time. If, after the time expiration, it be- comes necessary to take depositions, there is no difficulty, on making a proper presentation to the court or judge, in obtaining an appropriate order. (Victor Talking Mach. Co. v. Sonora Phonograph Corp., 221 Fed. 676.) 1030-1031, Ch. 49 MANUAL OF FEDERAL PROCEDURE. 432 CHAPTER 49. SETTING FOB TRIAL CALENDAR. SEO. 1030. Rule 56 as to Case Going on Trial Calendar and Restricting Taking Depositions Thereafter. 1031. Sufficiency of Showing of Compliance With the Rule Restricting Depositions After Case has Gone on Trial Calendar. 1032. Equity Rule 57 Restricting Allowance of Continuances After Case on Trial Calendar. 1033. Case is not Dropped from the Calendar After Hearing but Court may Render Decree After Term. 1030. Rule 56 as to Case Going on Trial Calendar and Restricting Taking Depositions Thereafter. Equity Rule 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. Thereafter no further tes- timony by deposition shall be taken except for some strong reason shown by affidavit. In every such application the rea- son why the testimony of the witness cannot be had orally on the trial, and why his deposition has not been before taken, shall be set forth, together with the testimony which it is expected the witness will give." 1031. Sufficiency of Showing of Compliance With the Rule Restricting Depositions After Case has Gone on Trial Calendar. In United Lace & Braid Mfg. Co. y. Barthels Mfg. Co. (E. D. N. Y.), 217 Fed. 175, 176, the court said: "While these papers do not set forth in detail entirely satisfactory reasons, showing inability to produce upon the trial the witnesses named, or others who would testify in the same way upon the same matters, nor just what evidence each witness will give with respect to the issues in the case, and while therefore the rule is not yet fully met, in the way that the usual application to examine a particular witness would 433 SETTING FOR TRIAL CALENDAR. Ch. 49, 1032-1033 be required to be presented, nevertheless it would appear that the motion should be granted to the extent of allowing the plaintiff to obtain the depositions, in the form of direct ex- amination, and to give opportunity at the same hearing for cross-examination of any of the witnesses named, in Provi- dence and Boston, whose actual presence at the trial shall not be of any benefit at the hearing of the case. In such a mat- ter as the present, there would seem to be no necessity for requiring strict compliance with the rule, nor in preventing the preparation of depositions for submission upon the trial, when all questions and objections as to the materiality and relevancy of the testimony, and as to the competency of using a deposition instead of requiring the actual presence of the witnesses to give oral testimony, can be raised. All such rights will be preserved to the defendant, who may attend the taking of the depositions without prejudice thereto." 1032. Equity Rule 57 Restricting Allowance of Continuances After Case on Trial Calendar. Equity Rule 57. " (Continuances.) After a cause shall be placed on the trial calendar it may be passed over to another day of the same term, by consent of counsel or order of the court, but shall not be continued beyond the term save in ex- ceptional 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 stipu- lation 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." 1033. Case is not Dropped from the Calendar After Hearing but Court may Render Decree After Term. In Davis v. Virginia Ry. & Power Co. (4th Cir.), 229 Fed. 633, 638, 144 C. C. A. 43, the court said: Maminl 28 1033, Ch. 49 MANUAL OP FEDERAL PROCEDURE. 434 "... It is argued that the ease was finally disposed of by being automatically dropped from the calendar on October 4, 1913, the last day of the April term, under the requirement of Equity Rule 57, and that the failure to appeal within six months from that date was fatal. The point is not well taken. The rule forbidding continuances was meant to prevent delay in the hearing of causes, and perhaps it was intended also as a stimulating admonition to judges to decide cases as promptly as possible; but it does not mean that after a case has been heard it shall be dropped from the calendar at the end of the term and thus disposed of before the court has made a final decree." 435 , TRIAL EQUITY SUITS. Ch. 50, 1040-KH1 CHAPTER 50. TRIAL EQUITY SUITS. 6EO. 1040. In General. 1041. Depositions After Issue and Affidavits of Expert Witnesses in Patent and Trademark Cases. 1042. Mode of Proof Under 862, Rev. Stats. 1043. Rulings on Admissibility of Evidence Under Equity Rule 4& 1044. Appointment of a Stenographer Under Equity Rule 50. 1045. Affidavits of Expert Witnesses Patent and Trademark Cases Under Equity Rule 48. 1046. Pleading and Proof in Actions for Infringement Under 4920, Rev. Stats. 1040. In General. Under Equity Rule 46 (1043, post), the trial of an equity suit, like that of an action at law, is by producing the witnesses in open court, unless under Equity Rule 47 ( 1020, supra), depositions have been taken for good and ex- ceptional cause for departing from the general rule, or, under Equity Rule 54 (1020, supra), after the cause was at issue, depositions were taken under 863, 865 and 867, Rev. Stats. Discovery by means of written interrogatories and demanding the admission of the genuineness of documents, etc., under Equity Rule 58 is treated in chapter 43 above. 1041. Depositions After Issue and Affidavits of Expert Wit- nesses in Patent and Trademark Cases. Under Equity Rule 47 (chapter 48, supra), depositions may be taken when allowed by statute or for good and exceptional cause for departing from the general rule. Those of the plaintiff within sixty days from the time the cause is at issue; of the defendant within thirty days from the expiration for filing plaintiff's depositions; rebutting depositions by either party within twenty days after the time for taking original depositions expires. 1042-1043, Ch. 50 MANUAL OF FEDERAL PROCEDURE. 436 Under Equity Rule 54, if the cause is at issue, depositions may be taken as provided by 863, 865, 866, and 867, Revised Stat- utes. - In cases involving the validity or scope of a patent or trade- mark, the testimony in chief of expert witnesses as to matters of opinion may be set forth in affidavits, under Equity Rule 48, those of plaintiff within forty days after the causes at issue, defendant within twenty days after plaintiff's time has expired, and rebut- ting affidavits within fifteen days after the expiration of the time for filing original affidavits. 1042. Mode of Proof Under 862, Rev. Stats. 862, Rev. Stats. ' ' The mode of proof in causes of equity . . . shall be according to rules now or hereafter prescribed by the Supreme Court, except as herein specially provided." (3 Fed. Stats. Ann., 2d ed., p. 171; 3 U. S. Comp. Stats. 1916, 1470.) In chapter 11, on "Evidence," will be found quoted the statu- tory provisions permitting the admission of copies of documents, for restoring laws, judgments, and records and admission of same in evidence, and with respect to acts of the state legislatures, records, and judicial proceedings of state courts, their authenti- cation and proof and other matters of like character. Provisions as to subpoenas and other matters relating to wit- nesses are set out in chapter 12 above. Depositions are treated in chapters 13 and 48 above. 1043. Rulings on Admissibility of Evidence Under Equity Rule 46. Equity Rule 46. "In all trials in equity the testimony of witnesses shall be taken orally in open court, except as other- wise provided by statute or these rules. The court shall pass upon the admissibility of all evidence 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 437 TRIAL EQUITY SUITS. Ch. 50, 1044-1045 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 appel- late 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 prejudice will result from an affirmance, in which event it shall direct such further steps as justice may require." (3 U. S. Comp. Stats. 1916, 1536, p. 2516; Foster's Federal Practice, 5th ed., 352, p. 1130; Simkins' Federal Equity Suit, 3d ed., pp. 131, 294, 492, 496, 520, 714.) 1044. Appointment of a Stenographer Under Equity Rule 50. Equity Rule 50. "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." (3 U. S. Comp. Stats. 1916, 1536, p. 2518; Foster's Federal Practice, 5th ed., 352, 420, pp. 1132, 1327.) 1045. Affidavits of Expert Witnesses Patent and Trade- mark Cases Under Equity Rule 48. Equity Rule 48. "In a case involving the validity or scope of a patent or trade mark, the district court may, upon peti- tion, 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 desire the production of any affiant for cross-examina- tion, 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 unless the affiant is produced and submits to cross-examination in compliance with such direc- tion, his affidavit shall not be used as evidence in the cause." 1046, Ch. 50 MANUAL OF FEDERAL PROCEDURE. 438 (3 U. S. Comp. Stats. 1916, 1536, p. 2518; Foster's Federal Practice, 5th ed., 352, p. 1131; Simkins' Federal Equity Suit, 3d ed., pp. 492, 519, 520.) Under Rule 48, where the answer sets up matter which may be the subject of expert testimony, the court in its discretion may grant a motion to have expert's testimony set forth in affidavits and filed. (P. M. Co. v. Ajax Rail Anchor Co., 216 Fed. 634.) In Todd v. Whitaker (E. D. Pa.), 217 Fed. 319, the court said: "If a request for opportunity to make this inspection be denied, or if what is offered in evidence differs from what was submitted for inspection, the present rules furnish the means of preventing a plaintiff from being taken by surprise. . . . The discretion of the trial judge can readily afford all the additional protection required." 1046. Pleading 1 and Proof in Actions for Infringement Under 4920, Rev. Stats. 4920, Rev. Stats. "In any action for infringement the defendant may plead the general issue, and having given notice in writing to the plaintiff or his attorney thirty days before, may prove on trial any one or more of the following special matters: "First. That for the purpose of deceiving the public the description and specification filed by the patentee in the Patent Office was made to contain less than the whole truth . relative to his invention or discovery, or more than is neces- sary to produce the desired effect; or, "Second. That he had surreptitiously or unjustly ob- tained the patent for that which was in fact invented by another, who was using reasonable diligence in adapting and perfecting the same; or "Third. That it has been patented or described in some printed publication prior to his supposed invention or dis- covery thereof, or more than two years prior to his applica- tion for a patent therefor; or, "Fourth. That he was not the original and first inventor or discoverer of any material and substantial part of the thing patented; or, 439 TRIAL EQUITY SUITS. Ch. 50, 104G "Fifth. That it had been in public use or on sale in this country for more than two years before his application for a patent, or had been abandoned to the public. "And in notices as to proof or previous invention, knowl- edge, or use of the thing patented, the defendant shall state the names of the patentees and the dates of their patents, and when granted, and the names and residences of the persons alleged to have invented or to have had the prior knowledge of the 'thing patented, and where and by whom it had been used; and if any one or more of the special matters alleged shall be found for the defendant, judgment shall be rendered for him, with costs. And the like defenses may be pleaded in any suit in equity for relief against an alleged infringe- ment; and proofs of the same may be given upon like notice in the answer of the defendant, and with the like effect." (Fed. 'Stats. Ann., 2d ed., "Patents"; 8 U. S. Comp. Stats. 1916, 9466.) 1060-1061, Ch. 51 MANUAL OF FEDERAL PROCEDURE. 440 CHAPTER 51. MASTERS IN CHANCERY. SEO. 1060. Appointment and Compensation Under Equity Rule 68. 1061. Reference of Exceptional Matters to, Under Equity Rule 59. 1062. Notice and Hearing of Reference Under Equity Rule 60. 1063. Regulation and Method of Proceedings Under Equity Rules 62, 63 and 64. 1064. Illustration of Exceptional Matters. 1065. Ruling as to Form of Accounts Before Master Under Equity Rule 68. 1060. Appointment and Compensation Under Equity Rule 68. Equity Rule 68. "The district courts may appoint stand- ing masters in chancery in their respective districts (a major, ity of all the judges thereof concurring in the appointment), and they may also appoint a master pro hac vice in any par- ticular 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 or- dered to pay the same, if, upon notice thereof, he does not pay it within the time prescribed by the court." (3 U. S. Comp. Stats. 1916, 1536, p. 2524; Foster's Federal Practice, 5th ed., 385, p. 1213; Simkins' Federal Equity Suit, 3d ed., p. 557.) 1061. Reference of Exceptional Matters to, Under Equity Rule 59. Equity Ride !~>9. "Save in matters of account, a reference to master shall be the e.xception, not the rule, and shall be made only upon a showing that some exceptional condition 441 MASTERS IN CHANCERY. Ch. 51, 1062 ^j'eqtiires it. When such a reference is made, the party at whose^msTance 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." (3 U. S. Comp. Stats. 1916, 1536, p. 2521; Foster's Federal Practice, 5th ed., 386, p. 1214; Simkins' Federal Equity Suit, 3d ed., pp. 558, 559, 561.) 1062. Notice and Hearing of Reference Under Equity Rule 60. * Equity Rule 60. "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 plate for proceedings in the same, and to give due notice thereof to each of the parties, or his solicitor; and if either party shall fail to appear at the time and place appointed, the master shall be at liberty to proceed ex parte, or, in his discretion, to adjourn the 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 pro- ceed with all reasonable diligence in every such reference, and with the least practicable delay, and either party shall be at liberty to apply to the court, or a judge thereof, for an order to the master to speed the proceedings and to make his report, and to certify to the court or judge the reason for any delay." (3 U. S. Comp. Stats. 1916, 1536, p. 2522; Foster's Federal Practice, 5th ed., 386, 388, pp. 1214, 1218; Simkins' Federal Equity Suit, 3d ed., p. 526.) 1062, Ch. 51 MANUAL OP FEDERAL taocEDURE. 442 In the United States District Court, Southern District of California, South- ern Division. K. Company, a Corporation, Complainant, v. Frank Doe, Defendant. OEDEB ON ACCOUNTING. Before , Esq., Special Master. Pursuant to the interlocutory decree entered and enrolled in the above- entitled suit and in furtherance of the references therein made for the purpose of taking and stating an account of the profits, gains, savings and ad- vantages which the said defendants have derived, received or made since , 1916, by reason of or through the infringement of the letters patent, sued on in said suit and found in and by said interlocutory decree, b^ an 7 manufacture, use or sale, or improvement to any or either of said devices containing and embodying the improvements described in said letters patent and claimed in the claim thereof, and for the purpose of assessing the damages which complainant has sustained since said date or shall sustain by reason of such infringement by the defendant, you, Frank Doe, are hereby ordered and directed to appear and attend before me at the hour o'clock P. M. on , May , 1917, at my office, Room , Building, Los Angeles, California, and bring with you and render an account or statement in writing under oath of the number of infringing devices or parts thereof made and the number sold by you in complete or contributory infringement of letters patent No. granted the day of , 1912, to the K. Company; the details of such manufacture and each manufacture and of such sales and each sale and of such use and each use and the total profits, gains, savings and advantages derived, received, realized or made by you in, by or by reason of, or through the manufacture or sale or use of each of said devices containing and embodying the improvements described in said letters patent and claimed in the claim thereof and infringed by you, and also set forth in detail specification in said account the following items: 1. The total number of devices containing and embodying the improve- ments in said letters patent and claimed in the claim thereof and the separate parts thereof made, sold or used by you and embraced within the claim of said letters patent No. referred to in the interlocutory decree herein to the date of the entry and enrollment of the interlocutory decree herein; 2. A statement showing to whom each of said infringing irrigating con- nections containing and embodying the improvements described in said letters patent and claimed in the claim thereof were sold, the dates of such sales, the actual cost of manufacture thereof, and the selling price received therefor. 443 MASTERS IN CHANCERY. Ch. 51, 1063 And that you have with you at said time all the books, papers, documents, statements, exhibits, records, vouchers and other things referring to the sale of such irrigating connections, or any thereof, or such separate parts thereof, so directly or contributorily infringing such letters patent as afore- said, or to the cost of manufacture, or to the sale thereof, or the amount, or amounts received by you therefrom in any manner, or to the number of such irrigating connections or parts thereof made by you, or on your behalf either in the county of Los Angeles, California, or elsewhere. This order is directed to you, your attorneys, officers, , directors, clerks, agents, servants, workmen, employees and associates and each of them as may stand in any relation to you in the premises; all in accordance with said interlocutory decree and the powers therein thereby conferred upon me and in accordance with the Rules 60, 62, 63 and 64 of the Rules of Practice for the Courts of Equity of the United States and statutes of the United States in such case made and provided. Dated Los Angeles, California, , 1917. , Special Master. 1063. Regulation and Method of Proceedings Under Equity Rules 62, 63 and 64. Equity Ride 62. "The master shall regulate all the pro- ceedings 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 ref- erence ; and also to require the production of all books, papers, writings, vouchers, and other documents applicable thereto; and also to examine on oath, viva voce, all witnesses produced by the parties before him, or by deposition, according to the acts of Congress, or otherwise, as here provided; and also to direct the mode in which the matters requiring evidence shal) 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." (3 U. S. Comp. Stats. 1916, 1536, p. 2522; Foster's Federal Practice, 5th ed., 388, p. 1217; Simkins' Federal Equity Suit, 3d ed., p. 563.) Equity Rule 65. "The master shall be at liberty to exam- ine any creditor or other person coming in to claim before him, either upon written interrogatories or viva voce, or in both modes, as the nature of the case may appear to him to require. The evidence upon such examinations shall be taken 1064-1065, Ch. 51 MANUAL OP FEDERAL. PROCEDURE. 444 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." (3 II. S. Comp. Stats. 1916, 1536, p. 2523; Simkins' Federal Equity Suit, 3d ed., pp. 520, 562.) Equity Rule 63. "All parties accounting before a master shall bring in their respective accounts in the form of debtor and creditor; and any of the other parties who shall not be satisfied with the account so brought in shall be at liberty to examine the accounting party viva voce, or upon interroga- tories, as the master shall direct." (3 U. S. Comp. Stats. 1916, 1536, p. 2523; Foster's Federal Practice-, 5th ed., 389 et seq., pp. 1219, 1220; Simkins' Federal Equity Suit, 3d ed., p. 563.) Equity Rule 64. "All affidavits, depositions, and docu- ments which have been previously made, read, or used in the court upon any proceeding in any cause or matter may be used before the master." (3 U. S. Comp. Stats. 1916, 1536, p. 2523; Simkins' Federal Equity Suit, 3d ed., p. 563.) 1064. Illustration of Exceptional Matters. In Destructor Co. v. City of Atlanta (N. D. Ga,), 232 Fed. 746, it was held that ' ' where the question at issue in a suit in equity was as to whether a refuse-burning plant built for a city fulfilled the requirements and warranties of the contract, which by its terms was to be determined by tests, and the contractor alleged that the city re- fused to cooperate in making such tests, it was within the power of the court to appoint a disinterested commission to make the tests and report the results bearing on all questions in .dispute. ' ' 1065. Ruling as to Form of Accounts Before Master. In Cushman & Denison Mfg. Co. v. Grammes (E. D. Pa.), 225 Fed. 883, at page 887, the court said: "When the right of a plaintiff to an accounting is found, Rule 63 gives ample authority to require the defendant to file such account, and sufficiently designates its form and what it shall contain. In form it must be a debtor and cred- itor statement. The rule indicates that it shall be on the 445 MASTERS IN CHANCERY. Ch. 51, 1065 basis of a cash statement of moneys received and disbursed. The analogue of an account stated by a sales agent or other fiduciary will afford a guide to what is required. If the account is accepted by the plaintiff, the profits have been ascertained, and this inquiry is at an end. If the statement is not acceptable, the case of a hearing upon exceptions to the account of any trustee supplies the required guide. The account, as stated by the defendants, is one thing. The evi- dence from which the master finds the facts upon which to base an account stated by him is another thing. Care should be taken to keep the distinction clear. The first should be a financial statement in cash account form simply. It should not be a list of possible witnesses, nor a statement of evi- dence, by which the items of the account may be vouched. The parties may call witnesses or offer evidence bearing upon accounting facts. Subpoenas may issue and include the usual duces tecum clauses. The production of books and papers may be compelled. Rules 62 and 63 and the ordinary rules which pertain to such matters apply. If a defendant objects to account, or a witness is asked to testify, or to produce books or papers, and objection is made, the question raised should be passed upon by the master. If the order of the master is met by a refusal to comply, the refusal may be certified to the court, or the opposite party may ask the master to find the facts and to state an account against the defendants from all the evidence before him. 4< In making such orders, care should, of course, always be taken to preserve to each party all his rights. Under the guise of requiring an account, or eliciting facts through tes- timony and evidence, neither party should be required to disclose the course of his dealings, so that a rival or competi- tor may injure him or gain an unfair advantage. The test is always: Is the requirement relevant to the decision of the cause? Almost everything in such cases must in the first in- stance be left to the discretion of the trial judge, or of the master acting in that capacity. Bringing these abstractions to the concrete, we decline to adjudge the defendants to be in contempt because of what this record discloses, and are of opinion that the order requiring the defendants in their accounting to give the names and addresses of their customers should be revoked. The basis of the expressed willingness of the defendants to give the information does not warrant a contempt finding." 1070, Ch. 52 MANUAL OF FEDERAL PROCEDURE. 446 CHAPTE'R 52. MASTER'S REPORT. SEO. 1070. Master's Report Exceptions Costs, Under Equity Rules 61, 66, 67. 1071. Exceptions to Draft Report, not Sufficient', but must be Filed after the Report Itself is Filed. 1072. Report Confirmed if No Objections Filed but Subject to be Set Aside on Questions of Law. 1073. Master's Conclusions on Matters of Fact Presumed Correct. 1074. Equity Rule 66 Applies to Bankruptcy Matters. 1075. Effect of Master's Report When Reference by Consent or on Stipulation. 1070. Master's Report Exceptions Costs, Under Equity Rules 61, 66 and 67. Equity Rule 61. "In the reports made by the master to the court, no part of any state of facts, account, charge, affi- davit, deposition, examination, or answer brought in or used before him shall be stated or recited. But such state of facts, account, charge, affidavit, deposition, examination, or answer shall be identified, and referred to, so as to inform the court what state of facts, account, charge, affidavit, deposition, examination, or answer were so brought in or used." (3 U. S. Comp. Stats. 1916, 1536, p. 2522.) Equity Rule 66. "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." (3 U. S. Comp. Stats. 1916, 1536, p. 2523; Fos- ter's Federal Practice, 5th ed., 392, p. 1231; Simkins' Fed- eral Equity Suit, 3d ed., pp. 564, 565, 568, 569, 571.) Equity Rule 67. "In orde~r to prevent exceptions to re- ports from being Hied for frivolous causes, or for mere delay, 447 MASTER'S REPORT. Ch. 52, 1071-107-1 the party whose exceptions are overruled, 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." (3 U. S. Comp. Stats. 1916, 1536, p. 2524; Foster's Federal Practice, 5th ed., 355, p. 1149; Simkins' Federal Equity Suit, 3d ed., pp. 566, 567, 573.) 1071. Exceptions to Draft Report, not Sufficient, but must be Filed After the Report Itself is Filed. Under Equity Rule 66, requiring the master to return his report into the clerk's office, and giving the parties twenty days from the time of the filing of the report to file exceptions thereto, exceptions to the report must be filed within the time fixed, and exceptions to the master's draft or proposed report merely give him an opportunity to correct his report and are insufficient to present any objections to the report. (Decker v. Smith (N. D. N. Y.), 225 Fed. 776.) 1072. Report Confirmed if No Objections Filed but Subject to be Set Aside on Questions of Law. The report of a special master, to which no exceptions have been filed, stands confirmed, but under Equity Rule 66, the court may decline to follow its result, if satisfied that the decision of the master on the question of law upon which it depends was wrong. (Isaac McLean Sons Co. v. William S. Butler & Co. (D. Mass.), 227 Fed. 325.) 1073. Master's Conclusions on Matters of Fact Presumed Correct. The conclusions of a master on matters of fact have every reasonable presumption in their favor, and are not to be set aside or modified unless there clearly appears to have been error or mistake on his part. .(Grushlaw v. Phoenix Knitting Works (:M Cir.), 223 Fed. 513, 516. 130 C. C. A. 61.) 1074. Equity Rule 66 Applies to Bankruptcy Matters. Equity Rule 66 provides that parties shall have twenty days from the time of filing the report of the master to file exceptions thereto, and, if none are filed within that period, the report shall stand 1075, Ch. 52 MANUAL OF FEDERAL, PROCEDURE. 448 confirmed. Held that, where an application for discharge of a bankrupt was referred to the referee as a special master to take testimony and report the same with his findings of fact, together with his recommendations in favor of or against the discharge, exceptions to the referee's report must be filed, if at all, within 20 days after the filing of the report. (In re Pierce, 210 Fed. 389, 390.) 1075. Effect of Master's Report When Reference by Consent or on Stipulation, Where by consent of the parties an order was entered appointing a special master with power to hear and con- sider all testimony whether taken by himself or by deposition, to view all physical evidence offered, to inspect the premises involved in the suit, and to report all testimony with exhibits, together with his findings of fact and conclusions of law, his findings of fact were conclusive upon the court, unless unsupported by any legal evidence, or contrary to all the evidence, and his conclusions of law, based upon the facts so found, only were reviewable on exceptions. Exceptions to the report of a master which present questions of law only are not a waiver of the conclusive effect of his findings of fact. (Hattiesburg Lumber Co. v. Herrick (5th cir.), 212 Fed. 834, 129 C. C. A. 288.) When, pursuant to a stipulation of the parties, all of the issues in a suit in equity are referred to a master, to take the proofs and report the same, together with his findings, his findings of fact are not subject to be set aside and disregarded at the mere dis- cretion of the court ; but so far as a finding depends on conflicting testimony or on the credibility of witnesses, or so far as there is anj competent testimony consistent with a finding, it must be treated as unassailable. Nor may the court disregard such find- ings, and proceed to make findings of its own, because the master failed to make findings on all the issues, or for other insufficiency in his report; but in such case the cause should be resubmitted, with proper instructions. (Connor v. United States (9th Cir.), 214 Fed. 522, 524, 131 C. C. A. 68.) 1-49 RECEIVERS. Ch. 53, 1080-1083 CHAPTER 53. REOEIVERa SEO. 1080. Persons Ineligible to Act as Receivers. 1081. Receivers Manage Property According to State Laws. 1082. Rights of Employees on Properties in Hands of Receivers to be Heard on Terms of Employment. 1083. Receivers When Suable Without Leave of Court. 1080. Persons Ineligible to Act as Receivers. 68. Jud. Code. "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." (36 Stats. 1105; 5 Fed. Stats. Ann., 2d ed., p. 548; 1 U. S. Comp. Stats. 1916, 1050.) Part 20, Act May 28, 1896, c. 252. "It shall not be law- ful to appoint any of the officers named in this section (mar- shal, deputy marshal, attorney, or assistant attorney of any district; jury commissioner, marshal's clerk, bailiff, crier, juror, janitor of a public building, civil or military employee of the government, or clerk or employee of any United States justice or judge) receiver or receivers in any case or cases now pending or that may hereafter be brought in the courts of the United States." (4 Fed. Stats. Ann., 2d ed., p. 635; 2 U. S. Comp. Stats. 1916, 1334.) 1081. Receivers Manage Property According to State Laws. 55, Jud. Code (Re-enacting 35 Stats. 436). "Whenever in any cause pending in any court of the United States there shall be a receiver or manager in possession of any property, such receiver or manager shall manage and operate such prop- erty 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 possession thereof. Any receiver or manager who Manual 29 1082-1083, Ch. 53 MANUAL OF FEDERAL PROCEDURE. 450 shall wilfully violate any provision of this section shall be fined not more than three thousand dollars, or imprisoned not more than one year, or both." (36 Stats. 1104; 5 Fed. Stats. Ann., 2d ed., p. 540; 1 U. S. Comp. Stats. 1916, 1047; Fos- ter's Federal Practice, 5th ed., p. 1007.) 1082. Rights of Employees on Properties in Hands of Re- ceivers to be Heard on Terms of Employment. P, Act July 15, 1913, c. 6, "That whenever receivers appointed by a Federal court are in the possession and con- trol of the business of employers covered by this act the em- ployees of such employers shall have the right to be heard through their representative's in such court upon all questions affecting the terms and conditions of their employment; and no reduction of wages shall be made by such receivers with- out the authority of the court therefor, after notice to such employees, said notice to be given not less than twenty days before the hearing upon the receivers' petition or application, and to be posted upon all customary bulletin boards along or upon the railway or in the customary places on the premises of other employers covered by this act." (38 Stats. 107; 6 Fed. Stats. Ann., 2d ed., p. 267; 8 U. S. Comp. Stats. 1916, 8674.) 1083. Receivers When Suable Without Leave of Court. 66, Jud. Cod* (Re-enacting 25 Stats. 436}. "Every re- ceiver 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 receiver or manager was appointed ; but such suit shall be subject to the general equity jurisdiction of the court in which such manager or receiver was appointed so far as the same may be necessary to the ends of justice." (36 Stats. 1104; 5 Fed. Stats. Ann., 2d ed., p. 541; 1 U. S. Comp. Stats. 1916, 1048; Foster's Federal Practice, 5th ed., pp. 167. 215, 1012; Simkins' Federal Equity Suit, 3d ed., pp. 162, 181, 256.) 451 INJUNCTIONS. Ch. 5i, 1100 CHAPTER 54. INJUNCTIONS. SEC. 1100. Power of Federal Courts to Issue Writs In General. 1101. Injunctions When may be Granted by Justice or Judge Instead of by Court. 1102. Injunctions Under the Clayton Act. 1103. Preliminary Injunctions and Temporary Restraining Orders Notice. 1104. Procedure Where Order Granted Without Notice. 1105. Dissolution and Modification of Temporary Restraining Orders. 1106. Order to be Filed Forthwith. 1107. Injunction Pending Appeal. 1108. When Proceedings in State Courts may be Stayed. 1109. Injunction to Restrain Enforcement of State Laws on Ground of Uncon-. stitutionality By 'Whom Granted. 1110. Hearing of Application in Such Cases Notice. 1111. Appeal from Order Granting or Denying Injunction in Such Cases. 1112. Enforcement of Injunction. 1113. Writs of Ne Exeat When and by Whom Granted. 1114. Writs of Scire Facias By What Courts Issuable. 1115. Power of Courts to Administer Oaths and Punish for Contempt. 1116. Injunction Restraining Receivership Proceedings Against National Banks. 1117. No Interlocutory Injunction Against National Banks in State Courts. 1118. Tax Assessment or Collection may not be Enjoined. 1119. Injunctions on Distress Warrant Against Officer for Failure to Account for Public Moneys Procedure. 1120. Procedure upon Refusal to Grant, or on Dissolntion of Such Injunction. 1121. Injunction Against Violation of Prohibition Laws. 1122. Forms Interlocutory and Perpetual Injunctions. 1100. Power of Federal Courts to Issue Writs In General. Part 262, Jud. Code (Drawn from 716, Rev. Stats., and 12, Act. Mch. 3, 1891, c. 517). "... The Supreme Court, the circuit courts of appeals, and the district courts shall have power to issue all writs not specifically provided for by stat- ute, which may be necessary for the exercise of their respec- tive jurisdictions, and agreeable to the usages and principles of law." (36 Stats. 1162; 5 Fed. Stats. Ann., 2d ed., p. 928; 1101-1102, Ch. 54 MANUAL OF FEDERAL PROCEDURE. 452 2 U. S. Comp. Stats. 1916, 1239; Poster's Federal Practice, 5th ed., pp. 8, 1469, 1527, 2413; Simkins' Federal Equity Suit, 3d ed., p. 41.) 1101. Injunctions When may be Granted by Justice or Judge Instead of by Court. 264, Jud. Code (Drawn from 719, Rev. Stats.). "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, elsewhere than within such cir- cuit, or at such place outside of the same as the parties may stipulate in writing, except when it cannot be heard by the district judge of the district. In case of the absence from the district of the district judge, or of his disability, any circuit judge of the circuit in which the district is situated may grant an injunction or restraining order in any case pending in the district court, where the same might be granted by the dis- trict judge." (36 Stats. 1162; 5 Fed. Stats. Ann., 2d ed., p. 954; 2 U. S. Comp. Stats. 1916, 1241; Foster's Federal Practice, 5th ed., pp. 812, 816, 902.) 1102. Injunctions Under the Clayton Act. 15, Act October 15, 1914, c. 323 (Clayton Act). [Injunc- tions Courts Duty of district attorneys Parties defendant.] "That the several district courts of the United States are hereby invested with jurisdiction to "prevent and restrain violations of this Act, and it shall be the duty of the several district attorneys of the United States, in their respective districts, under the direction of the Attorney General, to institute pro- ceedings in equity to prevent and restrain such violations. . Such proceedings may be by way of petition setting forth the case and praying that such violation shall be enjoined or other- wise prohibited. When the parties complained of shall have been duly notified of such petition, the court shall proceed, ^as soon as may be, to the hearing and determination of the case ; 453 INJUNCTIONS. Ch. 54, 1102 and pending such petition, and before final decree, the court may at any time make such temporary restraining order or prohibition as shall be deemed just in the premises. When- ever it shall appear to the court before which any such pro- ceeding may be pending that the ends of justice require that other parties should be brought before the court, the court may cause them to be summoned, whether they reside in- the district in which the court is held or not, and subpoenas to that end may be served in any district by the marshal thereof." (38 Stats. 736; 8 U. S. Comp. Stats. 1916, 8835n, p. 9694.) 16, Act Oct. 15, 1914 (Clayton Act). [Injunctive re- lief by private parties.] "That any person, firm, corporation, or association shall be entitled to sue for and have injunctive relief, in any court of the United States having jurisdiction over the parties, against threatened loss or damage by a viola- tion of the antitrust laws, including sections two, three, seven and eight of this Act, when and under the same conditions and principles as injunctive relief against threatened conduct that will cause loss or damage is granted by courts of equity, under the rules governing such proceedings, and upon the execution of proper bond against damages for an injunction improv- idently granted and a showing that the danger of irreparable loss or damage is immediate, a preliminary injunction may issue: Provided, That nothing herein contained shall be con- strued to entitle any person, firm, corporation, or association, except the United States, to bring suit in equity for injunctive relief against any common carrier subject to the provisions of the Act to regulate commerce, approved February fourth, eigh- teen hundred and eighty-seven, in respect to any matter subject to the regulation, supervision, or other jurisdiction of the Inter- state Commerce Commission." (38 Stats. 737; 8 U. S. Comp Stats. 1916, 8835o, p. 9697.) 17, Act Oct. 15, 1914 (Clayton Act). [Preliminary in- junctions and temporary restraining orders Notice.] "That no preliminary injunction shall be issued without notice to the opposite party. No temporary restraining order shall 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 injury, loss, or damage will result 1102, Ch. 54 MANUAL OP FEDERAL PROCEDURE. 454 to the applicant before notice can be served and a hearing had thereon. Every such temporary restraining order shall be indorsed with the date and hour of issuance, shall be forth- with filed in the clerk's office and entered of record, shall define the injury and state why it is irreparable and why the order was granted without notice, and shall by its terras expire within such time after entry, not to exceed ten days, as the court or judge may fix, unless within the time so fixed the order is extended for a like period for good cause shown, and the reasons for such extension shall be entered of record. In case a temporary restraining order shall be granted without notice in the contingency specified, the matter of the issuance of a preliminary injunction shall be set down for a hearing at the earliest possible time and shall take precedence of all mat- ters except older matters of the same character ; and when the same comes up for hearing the party obtaining the temporary restraining order shall proceed with the application for a pre- liminary injunction, and if he does not do so the court shall dissolve the temporary restraining order. Upon two days' notice to the party obtaining such temporary restraining order the opposite party may appear and move the dissolution or modification of the order, and in that event the court or judge shall proceed to hear and determine the motion as expeditiously as the ends of justice may require. Section two hundred and sixty-three of an Act entitled "An Act to codify, revise, and amend the laws relating to the judiciary," approved March third, nineteen hundred and eleven, is hereby repealed. Nothing in this section contained shall *be deemed to alter, repeal, or amend section two hundred and sixty-six of an Act entitled "An Act to codify, revise, and amend the laws relat- ing to the judiciary," approved March third, nineteen hundred and eleven. " (38 Stats. 737 ; 6 Fed. Stats. Ann., 2d ed., p. 139 ; 2 U. S. Comp. Stats. 1916, 1243a, p. 1962.) 18, Act of Oct. 15, 1914 (Clayton Act). [Restraining orders, etc. Security as condition precedent.] "That, except as otherwise provided in section 16 of this Act, no restraining order or interlocutory order of injunction shall issue, except upon the giving of security by the applicant in such sum as the court or judge may deem proper, conditioned upon the pay- ment of such costs and damages as may be incurred or suffered 455 INJUNCTIONS. Ch. 54, 1102 by any party who may be found to have been wrongfully en- joined or restrained thereby." (38 Stats. 738; 6 Fed. Stats. Ann., 2d ed.^ p. 140; 2 U. S. Comp. Stats. 1916, 1243b, p. 1963.) 19, Act of Oct. 15, 1914 (Clayton Act}. [Restraining orders, etc. Contents.] "That every order of injunction or restraining order shall set forth the reasons for the issuance of the same, shall be specific in terms, and shall describe in reasonable detail, and not by reference to the bill of complaint or other document, the act or acts sought to be restrained, and shall be binding only upon the parties to the suit, their officers, agents, servants, employees, and attorneys, or those in active concert or participating with them, and who shall, by personal service or otherwise, have received actual notice of the same." (38 Stats. 738 ; 6 Fed. State. Ann., 2d ed., p. 140; 2 U. S. Comp. Stats. 1916, 1243c, p. 1943.) 20, Act of Oct. 15, 1914 (Clayton Act). [Restraining orders, etc. When not to issue.] "That no restraining order or injunction shall be granted by any court of the United States, or a judge or the judges thereof, in any case between an employer and employees, or between employers and em- ployees, or between employees, or between persons employed and persons seeking employment, involving, or growing out of, a dispute concerning terms or conditions of employment, unless necessary to prevent irreparable injury to property, or to a property right, of the party making the application, for which injury there is no adequate remedy at law, and such property or property right must be described with particularity in the application, which must be in writing and sworn to by the applicant or by his agent or attorney. And no such restraining order or injunction shall prohibit any person or persons, whether singly or in concert, from terminating any relation of employment, or from ceasing to perform any work or labor, or from recommending, advising, or persuading others by peaceful means so to do; or from at- tending at any place where any such person or persons may lawfully be, for the purpose of peacefully obtaining or com- muniicating information, or from peacefully persuading any person to work or to abstain from working; or from ceasing to patronize or to employ any party to such dispute, or from recommending, advising, or persuading others by peaceful and 1103, Ch. 54 MANUAL OF FEDERAL PROCEDURE. 456 lawful means so to do; or from paying or giving to, or with- holding from, any person engaged in such dispute, any strike benefits or other moneys or things of value ; or from peaceably assembling in a lawful manner, and for lawful purposes; or from doing any act or thing which might lawfully be done in the absence of such dispute by any party thereto; nor shall any of the acts specified in this paragraph be considered or held to be violations of any law of the United States." (38 Stats. 738 ; 6 Fed. Stats. Ann., 2d ed., p. 141 ; 2 U. S. Comp. Stats. 1916, 1243d, p. 1964.) 1103. Preliminary Injunctions and Temporary Restraining Orders Notice. Part Equity Rule 73. "No preliminary injunction shall be granted without notice to the opposite party. Nor shall any temporary restraining order be granted without notice to the opposite party, unless it shall clearly appear from specific facts, shown by affidavit 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. . . . ' (3 U. S. Comp. Stats. 1916, 1536, p. 2526; Foster's Federal Practice, 5th ed., 255, 257, 291, pp. 815, 817, 905; Simians' Federal Equity Suit, 3d ed., p. 474.) Under Equity Rule 73, a court of equity is without power to issue an injunction unless there is a properly verified bill upon which to base the same. (Cathey v. Norfolk & W. By. Co.>x (4th Cir.), 228 Fed. 26, 29, 142 C. C. A. 482.) A restraining order was issued without notice and without any averment of immediate and irreparable loss, restraining defendant from selling a patent obtained while in complainant's employ and while under contract to assign to complainant any patent obtained on inventions while in complainant's employ. Under Rule 73 the record showed that complainant would be remediless and would suffer such loss, and the restraining order without notice and pre- liminary injunction were properly granted. (Thullen v. Triumph Electric Co. (3d Cir.), 212 Fed. 143, 128 C. C. A. 655.) 457 INJUNCTIONS. Ch. 54, 1104-110(5 Under Rule 73, motion made to dissolve, court held that a tem- porary restraining order granted under 263, Jud. Code (repealed by the Clayton Act, 1102, supra} , ceases without further order of the court on the hearing of the motion for temporary injunction. (Pack v. Carter (9th Cir.), 223 Fed. 638, 139 C. C. A. 184.) 1104. Procedure Where Order Granted Without Notice. Part Equity Rule 73. "... In case a temporary restrain- ing order shall be granted without notice, in ^he contingency specified, the matter shall be made returnable 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 party who obtained the temporary restraining order shall proceed with his application for a pre- liminary injunction, and if he does not do so the court shall dissolve his temporary restraining order. . . . ' (3 U. S. Comp. Stats. 1916, 1536, p. 2526; Foster's Federal Practice, 5th ed., 255, 257, 291, pp. 815, 817, 905.) 1105. Dissolution and Modification of Temporary Restrain- ing Orders. In addition to the penalty of dissolution prescribed by the preceding section, a temporary restraining order may be dissolved or modified in accordance with the following rule : Part Equity Rule 73. "... Upon two days' notice to the party obtaining such temporary restraining order, the opposite party may appear and move the dissolution or modifi- cation of the order, and in that event the court or judge shall proceed to hear and determine the motion as expeditiously as the ends of justice may require. . ,.,.. ' (3 U. S. Comp. Stats. 1916, 1536, p. 2526; Foster's Federal Practice, 5th ed., 255, 257, 291, pp. 815, 817, 905; Simkins' Federal Equity Suit, 3d ed., p. 475.) 1106. Order to be Filed Forthwith. Part Equity Rule 73. "... Every temporary restrain- ing order shall be forthwith filed in the clerk's office." (3 U. S. Comp. Stats. 1916, 1536, p. 2526; Foster's Federal 1107-1109, Ch. 54 MANUAL OF FEDERAL PROCEDURE. 458 Practice, 5th ed., 255, 257, 291, pp. 815, 817, 905; Simkins' Federal Equity Suit, 3d ed., p. 474.) 1107. Injunction Pending Appeal. Equity Rule 74. "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." (3 U. S. Comp. Stats. 1916, 1536, p. 2527; Simkins' Federal Equity Suit, 3d ed., p. 629.) 1108. When Proceedings in State Courts may be Stayed. 555, Jud. Code (Re-enacting 270, Rev. Stats.). "The writ of injunction shall not be granted by any court of the United States to stay proceedings in any court of a state, ex- cept in cases where such injunction may be authorized by any law relating to proceedings in bankruptcy." (36 Stats. 1162 ; 5 Fed. Stats. Ann., 2d ed., p. 959 ; 2 U. S. Comp. Stats. 1916, 1242; Foster's Federal Practice, 5th ed., p. 856; Simkins' Federal Equity Suit, 3d ed., pp. 475, 476.) 1109. Injunction to Restrain Enforcement of State Laws on Ground of Unconstitutionality By Whom Granted. First Part 266, Jud. Code (Re-enacting 17, Act June 18, 1910, c. 309}. "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 admin- istrative board or commission acting under and pursuant to the statutes of such state, shall be issued or granted by any justice of the Supreme Court, or by any district coiirt of the United States, or by any judge thereof, or by any circuit judge acting as district judge, upon the ground of the uncon- 459 INJUNCTIONS. Ch. 51, 1110 stitntionality of such statute, unless the application for the same shall be presented to a justice of the Supreme Court of the United States, or to a circuit or district judge, and shall be heard and determined by three judges, of whom at least one shall be a justice of the Supreme Court, or a circuit judge, and the other two may be either circuit or district judges, and unless a majority of said three judges shall concur in granting such application. Whenever such application as aforesaid is presented to a justice of the Supreme Court, or to a judge, he shall immediately call to his assistance to hear and determine the application two other judges: Provided, hawever, That one of such three judges shall be a justice of the Supreme Court, or a circuit judge." (36 Stats. 1162, as amended by Act March 4, 1913, c. 160, 37 Stats. 1013 ; 5 Fed. Stats. Ann., 2d ed., p. 983; 2 U. S. Comp. Stats. 1916, 1243; Foster's Federal Practice, 5th ed., pp. 397, 906; Simkins' Federal Equity Suit, 3d ed., pp. 471, 472, 473, 475.) Last Part 266, Added by Amendment of March 4, 1913, c. 160; 37 Stats. 1013. "It is further provided that if before the final hearing of such application a suit shall have been brought in a court of the state 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 pending 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.'^ (5 Fed. Stats. Ann., 2d ed., p. 983; 2 U. S. Comp. Stats. 1916, 1243; Foster's Federal Practice, 5th ed., pp. 397, 906; Sim- kins' Federal Equity Suit, 3d ed., pp. 471, 472, 473, 475.) 1110. Hearing- of Application in Such Cases Notice. Part 266, Jud. Code. "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 de- 1111-] 112, Oil. 54 MANUAL OF FEDERAL PROCEDURE. 460 fendants in the suit: Provided, That if of opinion that irre- parable loss or damage would result to the complainant unless a temporary restraining order is granted, any justice of the Supreme Court, or any circuit or district judge, may grant such temporary restraining order at any time before such hearing and determination of the application for an inter- locutory injunction, but such temporary restraining order shall remain in force only until the hearing and determination of the application for an interlocutory injunction upon notice as aforesaid. The hearing upon such application for an inter- locutory injunction shall be given precedence and shall be in every way expedited and be assigned for a hearing at the earliest practicable day after the expiration of the notice here- inbefore provided for." (36 Stats. 1162; 5 Fed. Stats. Ann., 2d ed., p. 984; 2 U. S. Comp. Stats. 1916, 1243; Foster's Fed- eral Practice, 5th ed., pp. 397, 906; Simkins' Federal Equity Suit, 3d ed., pp. 471, 472, 473, 475.) 1111. Appeal from Order Granting or Denying- Injunction in Such Cases. Part 266, Jud. Code. "An appeal may be taken direct to the Supreme Court of the United States from the order grant- ing or denying, after notice and hearing, an interlocutory injunction in such case." (36 Stats. 1162; 5 Fed. Stats. Ann., 2d ed., p. 983 ; 2 U. S. Comp. Stats. 1916, 1243 ; Foster's Fed- eral Practice, 5th ed., pp. 397, 906; Simkins' Federal Equity Suit, 3d ed., pp. 471, 472, 473, 475.) 1112. Enforcement of Injunction. Equity Ride 7. "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 defend- ant 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." (3 U. S. Comp. Stats. 1916, 1536, 461 INJUNCTIONS. Ch. 54, 1113 p. 2498; Foster's Federal Practice, 5th ed., pp. 570, 574; Simkins' Federal Equity Suit, 3d ed., pp. 312, 590.) Equity Rule 8. "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 hi 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 cterk's office, that the same has not been complied with within the prescribed time, the clerk shall issue a writ of attachment against the delinquent party, from which, if attached thereon, he shall not be discharged, unless upon a full 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 affi- davit, 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 mandatory order, in- junction or decree for the specific performance of any act or contract be not complied with, the court or a judge, besides, 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 disobedient party, and the act, when so done, shall have like effect as if done by him." (3 U. S. Comp. Stats. 1916, 1536, p. 2498; Foster's Federal Practice, 5th ed., pp. 209, 814, 1262, 1272, 1345, 1353, 1364, 1365, 1385, 1387; Simkins 1 Federal Equity Suit, 3d ed., pp. 585, 590, 591, 593, 771.) 1113. Writs of Ne Exeat When and by Whom Granted. 261, Jud. Code (Re-enacting 717, Rev. Stats.). "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 1114-1115, Ch. 54 MANUAL OF FEDERAL PROCEDURE. 462 no writ of ne exeat shall be granted unless a suit in equity . is commenced, and satisfactory proof is made to the court or judge granting the same that the defendant designs quickly to depart from the United States." (36 Stats. 1162; 5 Fed. Stats. Ann., 2d ed., p. 926; 2 U. S. Comp. Stats. 1916, 1238; Foster's Federal Practice, 5th ed., p. 1045; Simkins' Federal Equity Suit, 3d ed., pp. 284, 285, 48" 0, 481.) 1114. Writs of Scire Facias By What Courts Issuable. Part 262, Jud. Code. ' ' The Supreme Court and the dis- trict courts shall have power to 'issue writs of scire facias." (36 Stats. 1162; 5 Fed. Stats. Ann., 2d ed., p. 928; 2 U. S. Comp. Stats. 1916, 1239; Foster's Federal Practice, 5th ed., pp. 8, 1469, 1527, 2413; Simkins' Federal Equity Suit, 2d ed., p. 41.) 1115. Power of Courts to Administer Oaths and Punish for Contempt. 268, Jud. Code. "The said courts shall have power to impose and administer all necessary oaths, and to punish, by fine or imprisonment, at the discretion of the court, contempts of their authority : Provided, That such power to punish con- tempts shall not be construed to extend to any cases except the misbehavior of any person in their presence, or so near thereto as to obstruct the administration of justice, the mis- behavior of any of the officers of said courts in their official transactions, and the disobedience or resistance by any such officer, or by any party, juror, witness, or other person to any lawful writ, process, order, rule, decree, or command of the said courts." (36 Stats. 1162; 5 Fed. Stats. Ann.. 2d ed.. p. 1009; 2 U. S. Comp. Stats. 1916, 1245; 2 Foster's Federal Practice, 5th ed., 428, p. 1354; Simkins' Federal Equity Suit, 3d ed., pp. 471, 472, 473, 475.) 22, Act of Oct. 15, 1914 (Clayton Act}. [Contempt Procedure.} "That whenever it shall be made to appear to any district court or judge thereof, or to any judge therein sitting, by the return of a proper officer, on lawful process, or upon the affidavit of some credible person, or by information filed by any district attorney, that there is reasonable ground to 463 INJUNCTIONS. Ch. 54, 1115 believe that any person has been guilty of such contempt, the court or judge thereof, or any judge therein sitting, may issue a rule requiring the said person so charged to show cause upon a day certain why he should not be punished therefor, which rule, together with a copy of the affidavit or informa- tion, shall be served upon the person charged, with sufficient promptness to enable him to prepare for and make return to the order at the time fixed therein. If upon or by such return, in the judgment of the court, the alleged contempt be not sufficiently purged, a trial shall be directed at a time and place fixed by the court: Provided, however, That if the accused, being a natural person, fail or refuse to make return to the rule to show cause, an attachment may issue against his per- son to compel an answer, and in case of his continued failure or refusal, or if for any reason it be impracticable to dispose of the matter on the return day, he may be required to give reasonable bail for his attendance at the trial and his submis- sion to the final judgment of the court. Where the accused is a body corporate, an attachment for the sequestration of its property may be issued upon like refusal or failure to answer. In all cases within the purview of this Act such trial may be by the court, or, upon demand of the accused, by a jury; in which latter event the court may impanel a jury from the jurors then in attendance, or the court or the judge thereof in chambers may cause a sufficient number of jurors to be selected and summoned, as provided by law, to attend at the time and place of trial, at which time a jury shall be selected and impaneled as upon a trial for misdemeanor; and such trial shall conform, as near as may be, to the practice in criminal cases prosecuted by indictment or upon information. If the accused be found guilty, judgment shall be entered accordingly, prescribing the punishment, either by fine or im- prisonment, or both, in the discretion of the court. Such fine shall be paid to the United States or to the complainant or other party injured by the act constituting the contempt, or may, where more than one is so damaged, be divided or appor- tioned among them as the court may direct, but in no case shall the fine to be paid to the United States exceed, in case the accused is a natural person, the sum of $1,000, nor shall such imprisonment exceed the term of six months: Provided, That in any case the court or a judge thereof may, for good 1115, Ch. 54 MANUAL OF FEDERAL PROCEDURE. 464 cause shown, by affidavit or proof taken in open court or before such judge and filed with the papers in the case, dis- pense with the rule to show cause, and may issue an attach- ment for the arrest of the person charged with contempt; in which event such person, when arrested, shall be brought before such court or a judge thereof without unnecessary delay and shall be admitted to bail in a reasonable penalty for his ap- pearance to answer to the charge or for trial for the contempt ; and thereafter the proceedings shall be the same as provided herein in case the rule had issued in the first instance." (38 Stats. 738 ; 6 Fed. State. Ann., 2d ed., p. 142 ; 2 U. S. Comp. Stats. 1916, 1245c, p. 2008.) 23, Act of Oct. '15, 1914 (Clayton Act). [Contempt- Review of conviction Bail.] "That the evidence taken upon the trial of any persons so accused may be preserved by bill of exceptions, and any judgment of conviction may be reviewed upon writ of error in all respects as now provided by law in criminal cases, and may be affirmed, reversed, or modified as justice may require. Upon the granting of such writ of error, execution of judgment shall be stayed, and the accused, if thereby sentenced to imprisonment, shall be admitted to bail in such reasonable sum as may be required by the court, or by any justice, or any judge of any district court of the United States or any court of the District of Columbia." (38 Stats. 739 ; 6 Fed. Stats. Ann., 2d ed., p. 142 ; 2 U. S. Comp. Stats. 1916, 1245c, p. 2009.) 24, Act of Oct. 15, 1914 (Clayton Act). [Contempts- Existing statutes when applicable.] "That nothing herein con- tained shall be construed to relate to contempts committed in the presence of the court, or so near thereto as to obstruct the administration of justice, nor to contempts committed in dis- obedience of any lawful writ, process, order, rule, decree, or command entered in any suit or action brought or prosecuted in the name of, or on behalf of, the United States, but the same, and all other cases of contempt not specifically embraced within section twenty-one of this Act, may be punished in conformity to the usages at law and in equity now prevailing." [38 Stats. 739 ; 6 Fed. Stats. Ann., 2d ed., p. 143 ; 2 U. S. Comp. Stats. 1916, 1245d, p. 2009.) 465 INJUNCTIONS. Ch. 54, 1116-1117 25, Act of Oct. 15, 1914 (Clayton Act). [Contempts- Statute of limitations Other suits Pending proceedings. "That no proceeding for contempt shall be instituted against any person unless begun within one year from the date of the act complained of; nor shall any such proceeding be a bar to any criminal prosecution for the same act or acts ; but nothing herein contained shall affect any proceedings in con- tempt pending at the time of the passage of this Act." (38 Stats. 740 ; 6 Fed. Stats. Ann., 2d ed., p. 143 ; 2 U. S. Comp. Stats. 1916, 1245e, p. 2009.) 1116. Injunction Restraining Receivership Proceedings Against National Banks. 5237, Rev. Stats. "Whenever an association against which proceedings have been instituted, on account of any alleged refusal to redeem its circulating notes as aforesaid, denies having failed to do so, it may, at any time within ten days after it has been notified of the appointment of an agent, as provided in section fifty-two hundred and twenty-seven, apply to the nearest circuit, or district, or territorial court of the United States to enjoin further proceedings in the premises; and such court, after citing the Comptroller of the Currency to show cause why further proceedings should not be enjoined, and after the decision of the court or finding of a jury that such association has not refused to redeem its circulating notes, when legally presented in the lawful money of the United States, shall make an order enjoining the Comp- troller, and any receiver acting under his direction, from all further proceedings on account of such alleged refusal." (6 Fed. Stats. Ann., 2d ed., p. 872; 9 U. S. Comp. Stats. 1916, 9824.) 1117. No Interlocutory Injunction Against National Banks in State Courts. Part 5242, Rev. Stats. "No . . . injunction . . . shall be issued against such association (national bank) or its prop- erty before final judgment in any suit, action, or proceeding in any state, county, or municipal court." (6 Fed. Stats. Ann., 2d ed., p. 903; 9 U. S. Comp. Stats. 1916, 9834.) Manual 30 1118-1119, Ch. 54 MANUAL OP FEDERAL PROCEDURE. 466 1118. Tax Assessment or Collection may not be Enjoined. 3224, Rev. Stats. ' ' No suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court." (3 Fed. Stats. Ann., 2d ed., p. 1032; 6 U. S. Comp. Stats. 1916, 5947.) This section applies only to federal taxation. (Shelton v. Platt, 139 U. S. 597/35 L. Ed. 273, 11 Sup. Ct. 646; Schulenberg- Boeckler Lumber Co. v. Hayward, 20 Fed. 422 ; State R. R. Tax Cases, 92 U. S. 575, 23 L. Ed. 663.) It is doubtful, inasmuch as it is contained in that part of the Revised Statutes relating to internal revenue, whether it applies to other forms of taxation. 1119. Injunctions on Distress Warrant Against Officer for Failure to Account for Public Moneys Procedure. 3636, Rev. Stats. "Any person who considers himself aggrieved by any warrant of distress issued under the fore- going provisions may prefer a bill of complaint to any dis- trict judge of the United States, setting forth therein the nature and extent of the injury of which he complains; and thereupon the judge may grant an injunction to stay proceed- ings on such warrant altogether, or for so much thereof as the nature of the case requires. But no injunction shall issue till the party applying for it gives bond, with sufficient security, in a sum to be prescribed by the judge, for the per- formance of such judgment as may be awarded against him ; nor shall the issuing of such injunction in any manner impair the lien produced by the issuing of the warrant. And the same proceedings shall be had on such injunction as in other cases, except that no answer shall be necessary on the part of the United States; and if, upon dissolving the injunction, it appears to the satisfaction of the judge that the application for the injunction was merely for delay, the judge may add to the lawful interest assessed on all sums found due against the complainant such damages as, with such lawful interest, shall not exceed the rate of ten per centum a year. Such in- junction may be granted or dissolved by the district judge either in or out of court." (Fed. Stats. Ann., 2d ed., "Public Moneys"; 7 U. S. Comp. Stats. 1916, 6635.) 467 INJUNCTIONS. Ch. 54, 1120-1121 1120. Procedure upon Refusal to Grant, or on Dissolution of Such Injunction. 3637, Rev. Stats. "When the district judge refuses to grant an injunction to stay proceedings on a distress warrant, as aforesaid, or dissolves such injunction after it is granted, any person who considers himself aggrieved by the decision in the premises may lay before the circuit justice, or circuit judge of the circuit within which such district lies, a copy of the proceeding had before the district judge ; and thereupon the circuit justice or circuit judge may grant an injunction or permit an appeal, as the case may be, if, in his opinion, the equity of the case requires it. The same proceedings, sub- ject to the same conditions, shall be had upon such injunction in the circuit court as are prescribed in the district court." (Fed. Stats. Ann., 2d ed., "Public Moneys"; 7 U. S. Comp. Stats. 1916, 6636.) The appellate powers of the circuit court herein referred to were, by act of 1891, vested in the circuit courts of appeals, and Supreme Court. 1121. Injunction Against Violation of Prohibition Laws. Alaska. 20, Act Feb. 14, 1917, c. . "That any United States District Attorney for the Territory of Alaska may maintain an action in equity in the name of the United States to abate and perpetually enjoin such a nuisance as defined in- the pre- ceding section. No bond shall be required. Any person, violating the terms of any injunction granted in such pro- ceedings shall be punished for contempt by a fine of not more than $500 or by imprisonment in the Federal jail for not more than six months, or both such fine and imprisonment, in the discretion of the court." (Pamphlet Supp., Fed. Stats. Ann., Nos. 9, 10, pp. 9, 10.) District of Columbia. Act Mch. 3,1917, c. 165, 14. "The United States district attorney for the District of Columbia, or any citizen of the District of Columbia, may maintain an action in equity in the 1122, Ch. 54 MANUAL OP FEDERAL, PROCEDURE. 468 name of the United States to abate and perpetually enjoin such a nuisance as defined in the preceding section. The in- junction shall be granted at the commencement of the action. and no bond shall be required. Any person violating the terms of any injunction granted in such proceedings shall be punished for contempt by a fine of not less than $100 nor more than $500 and by imprisonment in the District jail or workhouse for not less than thirty days nor more than six months, in the discretion of the court." (U. S. Comp. Stats. 1916, 3369kk, Advance Sheets 239, Fed. No. 2, Supp. p. 125.) Act Mch. 3, 1917, c. 165, 15. Restraining violations of Act. "When any violation of this Act is threatened, or shall have occurred, or is occurring, the doing of, or the continu- ance or repetition of the unlawful act, or any of like kind by the offending party may be prevented by a writ of injunction out of a court of equity upon a bill filed in all respects as in cases of liquor nuisances; in like manner the writ of injunc- tion may be employed to compel obedience to any provision of this Act." (U. S. Comp. Stats. 1916, 33691, Advance Sheets 239, Fed. No. 2, Supp. p. 125.) r f-.t3 p *?, frX? 4 ' r -i "V ' *'&&& rflr ' -rJ rtT fdf T /? 1122. Forms Interlocutory and Perpetual Injunctions. United States District Court, Southern District of California, Southern Division. In Equity No. . > INTERLOCUTORY DECREE SUSTAINING PATENT. K. Company, a Corporation, Complainant, v. Frank Doe, Defendant. This cause having come on to be heard, upon the pleadings, proceedings and proofs herein filed on behalf of both parties, and after hearing , Esq., counsel for complainant, and , Esq., counsel for defendant, and after due proceedings had, upon consideration, on motion of , Esq., solicitor and counsel for complainant, and due deliberation had, it is hereby Ordered, adjudged and decreed, as follows: First. That the letters patent of the United States of America, issued to , assignor to K. Company, his assignee, on the day of , 1912, for new and useful improvements ih irrigating connections, No. and assigned 469 INJUNCTIONS. Ch. 54, 1122 to the complainant K. Company, a corporation, are good and valid in law, the claim of which is as follows: [Statement of Claim.] Second. That the said was the first true and original inventor of the invention and improvement described and claimed in said letters patent, and particularly recited in the claim thereof. Third. That the complainant the K. Company, a corporation duly organized and existing under and by virtue of the laws of the state of California, and having its principal place of business in the city of Los Angeles, county of Los Angeles, state of California, is the lawful owner of said letters patent, and is entitled t'o the exclusive rights in, to and under said letters patent, and in and to the invention and improvements secured thereby. Fourth. That the defendant Frank Doe has infringed upon said letters patent, and the claim thereof, and upon the exclusive rights of the complain- ant under same, by manufacturing, using and vending to others to be used, irrigating connections, containing and embodying the improvements described in said letters patent and particularly claimed in the claim thereof. Fifth. That the complainant do recover of the defendant the profits, gains, savings and advantages which the said defendant has derived, received or made since , 1912, by reason of the infringement of the exclusive rights under said letters patent, by any manufacture, use or sale, or inducement to any or either of said acts, of irrigating connections, containing and embodying the improvements described in said letters patent and claimed in the claim thereof, and that complainant do recover of said defendant any and all damages which the complainant has sustained since said date by reason of such infringement of its exclusive rights, by said defendant. Sixth. And it is hereby referred to , a master of this court, who i hereby appointed to take, ascertain and state the number of infringing devices or parts thereof made, and the number sold by the said defendant in in- fringement of the claim of said letters patent, and the number of such infringing devices or parts thereof which the said defendant have on hand, and the gains, profits, savings and advantages derived by the said defendant from and through said infringement, and to assess the damages thereby suffered by the said complainant and to report thereon to this court with all convenient speed. And the said defendant, his agents, attorneys, clerks, servants, workmen, and employees, are hereby directed and required to attend before the said master from time to time as required by him, and to produce before him such books, papers, statements, exhibits, vouchers and documents as they may be directed by said master to produce, and to submit to such oral or other examina- tion as the master may direct. Seventh. That a perpetual injunction issue out of and under the seal of this court, directed to said defendant Frank Doe, his associates, officers, agent's, attorneys, clerks, servants, workmen and employees, enjoining and restraining 1122, Cll. 54 MANUAL OF FEDERAL PROCEDURE. 470 them and each of them from directly or indirectly making or causing to be made, using or causing to be used, advertising for sale, vending or causing to be sold in any manner, any articles, devices or parts thereof containing and employing or embodying the said invention and improvements described in said letters patent, No. , and claimed in the claim thereof, and from counter- feiting or imitating the said invention and improvements or any part or parts thereof in any way, or from infringing upon or violating the said letters patent in any way whatsoever. Eighth. That the complainant do recover of the defendant the costs, charges and disbursements of this suit to be taxed, and that the question of increase of damages and all further questions be reserved until the coming in of the master's report. , United States District Judge. 0. K. as to form. , Solicitor for Defendant. United States District Court, Southern District of California, Southern Dirision. In Equity No. . K. Company, a Corporation, Complainant, T. INJUNCTION. Frank Doe, Defendant. The President of the United States of America to Frank Doe, His Agents, Attorneys, Clerks, Servants, Workmen and Employees, Greeting: Whereas it has been represented to us in our district court of the United States for the Southern District of California, Southern Division, that letters patent of the United States were issued to , assignor to K. Company, his assignee, for new and useful improvements in irrigating connections, dated the day of , 1912, No. , the claim of which is as follows : [Describe claim] ; of which the plaintiff is the sole and exclusive owner, and that the plaintiff is also the owner of all rights to recover damages and profits from all infringers of said letters patent (as well prior as subsequent to the assignment of said letters patent to plaintiff) ; that said letters patent are good and valid, and have been infringed by the defendants herein by the manufacture, use and sale of irrigating connections, containing and embodying said invention: Now, therefore, we do strictly command and enjoin you, the said Frank Doe, your agents, attorneys, clerks, servants, workmen and employees, for the remainder of the term of the life of said letters patent from further infring- ing the same, from directly or indirectly making or causing to be made, using or causing to be used, advertising for sale, vending or causing to be sold in 471 INJUNCTIONS. Ch. 54, 1122 any manner, any artirles, devices or parts thereof containing and employing or embodying the said invention and improvements described in said letters patent No. , and claimed in the claim thereof, and from counterfeiting or from imitating the said invention and improvements or any part or parts thereof in any way, or from infringing upon or violating the said letters patent in any way whatsoever; Witness the Honorable , Judge of the district court of the United States, this day of , 1916, and in the 140th year of the Independence of the United States of America. [Seal] Attest: , Clerk. 1130-1131, Ch. 55 MANUAL OF FEDERAL PROCEDURE. 4:72 CHAPTER 55. DISMISSAL BY PLAINTIFF. 8EO. 1130. Generally Plaintiff may Dismiss at any Time Before Decree on the Merits. 1131. After Master's Report Filed Voluntary Dismissal by Plaintiff not Allowed. 1130. Generally Plaintiff may Dismiss at Any Time Before Decree on the Merits. The right of a complainant to dismiss without prejudice, at least before the case has reached a stage where the court could render a final decree on the merits, is not subject to the imposition of conditions other than the payment of costs. A party is protected under the general rules of evidence in the right to use depositions taken in a former case between the same parties, where the testimony would not otherwise be pro- curable ; but the relevancy of such testimony must be determined in the case in which it is offered. (Young v. Samuels & Bro. (D. R. I.), 232 Fed. 784, and cases cited.) 1131. After Master's Report Filed Voluntary Dismissal by Plaintiff not Allowed. After the reference of a suit to a master to hear and determine all issues of fact and law, and after the master on evidence submitted by both parties had made his re- port containing a number of findings, including a general one in favor of defendants, and after plaintiff had filed exceptions thereto, the court should not permit plaintiff to dismiss his bill without prejudice, as such a discontinuance of the case involved more for the defendant than the incidental annoyance of a second litigation upon the same subject matter, and would be manifestly prejudicial to defendant, since it deprived him of the benefit of findings in his favor which were prima facie correct, and could not be set aside or modified unless error or mistake clearly ap- peared. (Smith v. Carlisle (5th Cir.), 228 Fed. 666, 143 C. C. A. 188.) 473 DECREE EQUITY SUITS. Oh. 56, 1140 CHAPTER 56. DECREE EQUITY SUITS. SCO. 1140. Rules as to Form of Decree. 1141. Findings. 1142. Drafting the Decree. 1143. Enforcement. 1144. Enforcement on Conditions. 1145. Decree Outside the Issues Invalid. 1146. Retaining Case to Afford Complete Relief. 1147. Lien of Decree not Divested by Creation of a New District or Division Nor by the Division or Transfer of Territory. 1140. Rules as to Form of Decree. Equity Rule 71. Form of Decree. "In drawing up de- crees and orders, neither the bill nor answer nor other plead- ings, 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 further heard, as the case may be) at this term, and was argued by counsel ; and thereupon, upon consideration thereof, it was ordered, adjudged, and decreed as follows, viz.:' ' (Here insert the decree or order.) (3 U. S. Comp. Stats. 1916, 1536, p. 2526; Simkins' Federal Equity Suit, 3d ed., p. 584.) Equity Rule 10. Decree for Deficiency in Foreclosures, etc. "In suits for the foreclosure of mortgages, or the enforce- ment of other liens, a decree may be rendered for any balance that may be found due to the plaintiff over and above the pro- ceeds of the sale or sales, and execution may issue for the col- lection of the same, as is provided in Rule 8 when the decree is solely for the payment of money." (3 U. S. Comp. Stats. 1916, 1536, p. 2499; Foster's Federal Practice, 5th ed., p. 1273; Simkins' Federal Equity Suit, 3d ed., p. 585.) Part Equity Rule 8. " . . .If the decree be for the per- formance of any specific act, as, for example, for the execution 1141-1143, Ch. 56 MANUAL OP FEDERAL PROCEDURE. ' 474 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. . . . ' (3 U. S. Comp. Stats. 1916, 1536, p. 2498; Foster's Federal Practice, 5th ed., pp. 814, 1272, 1364; Simkins' Federal Equity Suit, 3d ed., pp. 584, 590, 591.) Under Rule 8 it was held in Richards v. Harrison (S. D. Iowa), 218 Fed. 134, that the omission of a recital in a judgment for a writ of execution was immaterial because this rule provides that when the judgment is for the payment of money only it shall be enforced by writ of execution. 1141. Findings. In Liebing v. Matthews (8th Cir.), 216 Fed. 1, 12, 132 C. C. A. 245, the court said: "There is no rule in equity that the court shall in its decree find all the facts necessary to sustain the decree except where, as in Peirsoll v. Elliott, 6 Pet. (U. S.) 95, 8 L. Ed. 332, in the absence of a finding of facts, it would be impossible to tell what the decree in fact meant." 1142. Drafting the Decree. The decree should be drawn by the solicitor of the successful party. It should then be sub- mitted to opposing counsel and if he has any objections not ad- mitted by counsel drawing the decree, such objections should be noted and submitted to the cojurt for settlement. On settlement of objections, or if none are made, the decree is presented to the judge for signature and delivered to the clerk for filing and rec- ord in the equity journal. (Equity Rule 3, Cl. 3.) 1143. Enforcement. Equity Rule 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 convey- ance of land or the delivering up of deeds or other documents, the decree shall, in all ca. c ;c.s. prescribe the time within which 475 DECREE EQUITY SUITS. Ch. 5G, 1144 the act shall be clone, of which the defendant shall be bound, without further service, to take notice; and upon affidavit of the plaintiff, filed in the clerk's office, that the same has not been complied with within the prescribed time, the clerk shall issue a writ of attachment against the delinquent party, from \vhieh, if attached thereon, he shall not be discharged, unless upon a full compliance with the decree and the payment of all costs, or upon a special order of the court, or 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 twn est invents, to compel obedience to the decree. If a mandatory order, injunction, or decree for the specific performance of any act or contract be not com- plied with, the court or a judge, besides, or instead of, pro- ceedings 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 disobedient party, and the act, when so done, shall have like effect as if done by him." (3 U. S. Comp. Stats. 1916, 1536. p. 2498; Foster's Federal Practice, 5th ed., pp. 209, 814 ; 1262, 1272, 1345, 1364, 1385, 1387; Simians' Federal Equity Suit, 3d ed., pp. 585, 590, 591, 593, 771.) Equity Rule 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 decree or order, the party prosecuting the same shall be entitled to a writ of assistance from the clerk of the court." (3 U. S. Comp. Stats. 1916, 1536, p. 2499; Foster's Federal Practice, 5th ed., pp. 1385, 1386; Simkins' Federal Equity Suit, 3d ed., pp. 584, 590, 592.) 1144. Enforcement on Conditions. In Union Cent. Life Ins. Co. v. Drake (8th Cir.), 214 Fed. 536, 131 C. C. A. 82, the court held that, a court of equity may, in a case where the rules and prin- ciples of equity demand it, condition its grant of relief sought by the plaintiff with the enforcement of a claim or equity held by a defendant which by reason of the statute of limitations, an adjudi- cation, or otherwise, the latter could not enforce in any other way. 1145-1147, Ch. 56 MANUAL OP FEDERAL PROCEDURE. 47G 1145. Decree Outside the Issues Invalid. In Mitchell v. Hitch- man Coal & Coke Co., 214 Fed. 685, 131 C. C. A. 425, the court held that a decree determining that a labor union was an unlawful combination or conspiracy in restraint of trade in violation of the Sherman Anti-Trust Law (Act July 2, 1890, c. 647, 26 Stats. 209), could not be sustained where there was no allegation of defend- ant's violation of such law in the pleadings. 1146. Retaining Case to Afford Complete Relief. In St. Louis etc. Ry. v. Bellanw, 211 Fed. 172, a preliminary injunction was granted upon the petition of a railroad company enjoining the enforcement of a rate. Later the bill was dismissed and the injunction dissolved. Held that, under Equity Rule 10, provid- ing that "every person not being a party in any cause ... in whose favor an order shall have been made, shall be enabled to enforce obedience to such order by the same process as if he were a party to the cause," the court had jurisdiction to retain the cause after dismissal of the bill for the purpose of enforcing the claims of all shippers and passengers under the bonds, and that in aid of such jurisdiction it had power to enjoin individual claim- ants from maintaining separate suits in the state courts. 1147. Lien of Decree not Divested by Creation of a New District or Division nor by the Division or Transfer of Territory. By 60, Jud. Code, already quoted in 70, supra, it is provided that the lien of a decree, etc., shall not be divested by a change of boundaries of any territory, and that a certified copy thereof may be filed in the proper court of the division or district in which the property is located after such transfer, and have the same effect as an original. 477 REIIEAHINQ. Ch. 57, 1160-1161 CHAPTER 57. BEHEARING. SEO. 1160. Correction of Mistakes Rehearing Equity Rules 72 and 69. 1161. Allowance of Petition for Rehearing at Same Term at Which Decree Entered Suspends Decree Until Disposition of Petition. 1162. Petition for Rehearing on Newly Discovered Evidence. 1163. Rehearing not Granted Where New Evidence Known When Briefs were Filed. 1164. Granting a Rehearing a Matter of Discretion. 1160. Correction of Mistakes Rehearing Equity Rules 72 and 69. Equity Rule 72. "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 hearing." (3 U. S. Cpmp. Stats. 1916, 1536, p. 2526; Foster's Federal Practice, 5th ed., 444, p. 1392; Simkins' Federal Equity Suit, 3d ed., p. 585.) Petition for Rehearing. Equity Rule 69. "Every petition for a rehearing shall con- tain the special matter or cause on which such rehearing is applied for, shall be signed by counsel, and the facts therein stated, if not apparent on the record, shall be verified by the oath of the party or by some other person. No rehearing shall be granted after the term at which the final decree of the court shall have been entered and recorded, if an appeal lies to the circuit court of appeals or the Supreme Court. But if no appeal lies, the petition may be admitted at any time before the end of the next term of the court, in the discretion of the court." (3 U. S. Comp. Stats. 1916, 1536, p. 2525.) 1161. Allowance of Petition for Rehearing at Same Term ^at Which Decree Entered Suspends Decree Until Disposition of Petition. In United States v. Midway Northern Oil Co. (S. D. Cal.), 232 Fed. 619, the court held that while a court is without 1162, Cll. 57 MANUAL OF FEDERAL PROCEDURE. 478 power to entertain a petition for rehearing after the terra at which final decree was entered, where a petition is filed during the term by leave of court, the decree does not become final until the petition is disposed of. 1162. Petition for Rehearing on Newly Discovered Evidence. In Sheeler v. Alexander, 211 Fed. 544, the court held under Equity Rule 69 that a rehearing in an infringement suit after an interlocutory decree, on the ground of newly discovered evidence, may properly be had upon petition. To entitle a defendant to a rehearing on the ground of newly discovered evidence it must be shown : (1) That he exercised due and reasonable diligence before the hearing to procure the evi- dence sought to be introduced; and (2) that the new evidence is material in determining the issues raised by the pleadings and is probably true, and on such questions counter-affidavits may be received. Day, J., said (pp. 546, 547) : "While the cases are not fully in accord as to the proper procedure to be followed when an application is made for a rehearing on account of newly discovered evidence, it is ap- parent from the decisions that if a decree has been entered in the lower courts, and an appeal has been taken therefrom to the Circuit Court of Appeals, so that the App*ellate Court has jurisdiction, the proper proceeding is for the petitioner to file a petition duly verified and addressed to the Appellate Court, and praying for leave to file in the lower court a supplemental bill in the nature of a bill of review. "Inasmuch as rehearings are granted only upon such grounds as would authorize a new trial in an action at law, that is, for newly discovered evidence, or errors of law ap- parent upon the record, it would seem to be a proper course of procedure in the filing of a petition for a rehearing where only an interlocutory decree has been entered, and there has been no appeal taken to the Circuit Court of Appeals, for the party seeking a rehearing to file its petition with the clerk of the court, and if he relies upon newly discovered evidence, he should set forth this evidence in the bill as far as possible in the petition for rehearing, and. in any event, in affidavits filed with the petition for rehearing and accompanying it. After 47y REHEARING. Ch. 57, 1 103 -1 104 filing this petition for a rehearing and the affidavits, he should then obtain an order upon the adverse party to show cause at some later date why his prayer for a rehearing should not be granted. The adverse party may then answer the petition for a rehearing, and upon the petition and answer the applica- tion may be heard. If the application for a rehearing is granted, then the petitioning party would be required to file either a supplemental bill or answer, as the case might be, in order that the hearing might be had on the original bill and answer and on the supplemental pleadings." 1163. Rehearing not Granted Where New Evidence Known When Briefs were Filed. In American Hoist & Derrick Co. v. Nancy Hawks Hay Press & Foundry Co. (N. D. Ga.), 224 Fed. 524, the court held that a rehearing in' an equity case will not be granted to allow the introduction of new evidence, where such evidence was known at the time the briefs were filed, but no mo- tion was made to suspend or delay the case for the purpose of in- troducing such evidence. 1164. Granting a Rehearing a Matter of Discretion, In Sheeler v. Alexander (above quoted. 1162), 211 Fed. 544, at page 545, the court on a petition for rehearing under Equity Rule 69 of an infringement suit on the ground of newly discovered evi- dence, after referring to Equity Rule 18 abolishing technical forms of pleading, Equity Rule 19 allowing the court to disregard any errors not affecting substantial rights of the parties, Equity Rule 34 permitting supplemental pleadings, and Equity Rule 46 providing for oral testimony in open court at the trial, said : "It would seem to be the spirit of these new E'quity Rules that they were drawn by the Supreme Court with the intent of leaving the judge free to adjust matters in the interests of substantial justice, as he sees fit. unhampered by precedent and by technical definitions and distinctions." 1180-1181, Ch. 58 MANUAL OF FEDEKAJL PROCEDURE. 480 CHAPTER 58. BILL OF REVIEW. sic. 1180. Function of Bill of Review. 1181. Time for Filing Leave of Court. 1182. Form of Bill of Review. 1180. Function of Bill of Review. A bill of review is to correct errors apparent on the face of the record, and for newly discovered evidence after the term, or for new matter arising since the decree, or for fraud in procuring the decree. If a peti- tion for rehearing can be filed within the term in which the decree was rendered, that would be the proper proceeding, but if it is impossible to reach the matter by petition for rehearing a bill of review may be filed after term. 1181. Time for Filing Leave of Court. After the end of the term at which a decree is rendered, it becomes an absolute finality and the court has no power to change, revise or grant other relief against it in the cause in which it was rendered, ex- cept that it may do so for errors of law, appearing on the face of the decree, which rendered it void. A bill of review may then be filed in the nature of an original bill, and this without leave of court. (Farmers & Merchants' Bank of Phoenix v. Arizona Mutual Savings & Loan Assn. (9th Cir.), 220 Fed. 1, 135 C. C. A. 577; In re Brown (S. D. N. Y.), 213 Fed. 701.) A bill of review must be filed within the time allowed for ap- peal from such decree. (Lewis v. Holmes (7th Cir.), 224 Fed. 410, 140 C. C. A. 8.) 481 BILL OF REVIEW. Ch. 58, 1182 1182. Form of Bill of Review. [Title of the Case.] [Title of the Court.] To the District Judge for the District of . Petitioner, as plaintiff, vs. [name all other parties in the original suit], as defendants. Your petitioner shows unto your honors that on the day of , A. D. 19 , herein defendant filed hia complaint in the United States District Court for the District of , against your petitioner, alleg- ing [set out substance of complaint]. That your petitioner appeared and answered said bill on the day of , A. D. 19 , as follows [setting out substance of answer] ; that cause was heard on the day of , A. D. 19 , and a decree was rendered and recorded in said cause as follows [quote decree]. That said decree is erroneous and it would be inequitable to permit it to stand as entered in this cause because [set out errors complained of]. That no decree should have been rendered, but the bill should have been dismissed. That because of the error thus apparent your petitioner prays that said decree be reviewed and reversed, and no further proceedings taken thereon, and your petitioner prays that a subpoena be directed to the said de- fendant, commanding him on the day of , 19 , to show cause why the decree should not be reviewed and reversed. , Solicitor. State of , County of I, , plaintiff in the foregoing petition for review, being duly sworn state that I have read the same and know the contents thereof, and that the matters and things therein alleged are true. , Plaintiff. Sworn to before me this day of , A. D. 19 . , Notary. Manual 81 1200-1201, Cll. 59 MANUAL. OF .FEDERAL, PROCEDURE. 482 K% CHAPTER 59. CRIMINAL JURISDICTION. SEC. 1200. Criminal Jurisdiction of the District Court. 1201. Places Within Which the Criminal Laws of the United States Apply. 1202. Penal Laws Enforced in, and Governing the Federal Courts. 1203. Adoption of State Penal Laws for Reserved Federal Territory Within State Boundaries. 1204. State and Federal Jurisdictions of Offenses. 1205. Jurisdiction of State Courts Under State Laws not Affected. 1206. Venue of Criminal and Penal Prosecutions. 1207. Statutes of Limitations Criminal Cases. 1200. Criminal Jurisdiction of the District Court. Par. Second, 24, Jud. Code. ' ' Of all crimes and offenses cognizable under authority of the United States." (36 Stats. 1091; 4 Fed. Stats. Ann., 2d ed., p. 838; U. S. Comp. Stats. 1916, 991, par. 2, p. 758.) Par. Ninth, 24, Jud. Code. "Of all suits and proceedings for the enforcement of penalties and forfeitures incurred under any law of the United States." (36 Stats. 1092 ; 4 Fed. Stats. Ann. 2d ed., p. 1048; 1 U. S. Comp. Stats. 1916, 991 (9), p. 800.) This jurisdiction is exclusive of the state courts under paragraphs first and second of 256, Jud. Code. (36 Stats. 1161 ; 5 Fed. Stats. Ann., p. 921; 2 U. S. Comp. Stats., 1233, pp. 1841, 1848.) 1201. Places Within Which the Criminal Laws of the United States Apply. 311, Cr. Code. "Except as otherwise expressly provided, the offenses denned in this chapter shall be punished as here- inafter provided, when committed within any territory or dis- trict or within or upon any place within the exclusive juris- diction of the United States." (Fed. Stats. Ann., 2d ed., "Penal Laws"; 10 U. S. Comp. Stats. 1916, 10,484.) 272, Cr. Code. "The crimes and offenses denned in this chapter shall be punished as herein prescribed : 483 CRIMINAL, JURISDICTION. Ch. 59, 1202 "First. When committed upon the high seas, or on any other waters within the admiralty and maritime jurisdiction of the United States and out of the jurisdiction of any par- ticular state, or when committed within the admiralty and maritime jurisdiction of the United States and out of the juris- diction of any particular state on board any vessel belonging in whole or in part to the United States or any citizen thereof, or to any corporation created by or under the laws of the United States, or of any state, territory, or district thereof. "Second. When committed upon any vessel registered, licensed, or enrolled under the laws of the United States, and being on a voyage upon the waters of any of the Great Lakes, namely: Lake Superior, Lake Michigan, Lake Huron, Lake Saint Glair, Lake Erie, Lake Ontario, or any of the waters connecting any of said lakes, or upon the River Saint Lawrence where the same constitutes the international boundary line. "Third. When committed within or on any lands reserved or acquired for the exclusive use of the United States, and under the exclusive jurisdiction thereof, or any place purchased or otherwise acquired by the United States by consent of the legis- lature of the state in which the same shall be, for the erection of a fort, magazine, arsenal, dockyard, or other needful building. "Fourth. On any island, rock, or key containing deposits of guano, which may, at the discretion of the President, be considered as appertaining to the United States." (Fed. Stats. Ann., 2d ed., "Penal Laws"; 10 U. S. Comp. Stats. 1916; 10,445.) 310, Cr. Cod*. "The words 'vessel of the United States/ wherever they occur in this chapter, shall be construed to mean a vessel belonging in whole or in part to the United States, or any citizen thereof, or any corporation created by or under the laws of the United States, or of any state, territory, or dis- trict thereof." (Fed. Stats. Ann., 2d ed., "Penal Laws"; 10 U. S. Comp. Stats. 1916, 10,483.) 1202. Penal Laws Enforced in, and Governing the Federal Courts. 752, Rev. Stats. "The jurisdiction in civil and criminal matters conferred on the district and circuit courts by the pro- visions of this title, and of title 'Civil Rights,' and of title 1203-1204, Ch. 59 MANUAL OP FEDERAL PROCEDURE. 48-1 * Crimes,' for the protection of all persons in the United States in their civil rights, and for their vindication, shall be exercised and enforced in conformity with the laws of the United States, so far as such laws are suitable to carry the same into effect; but in all cases where they are not adapted to the object, or are deficient in the provisions necessary to furnish suitable remedies and punish offenses against law, the common law, as modified and changed by the Constitution and statutes of the state wherein the court having jurisdiction of such civil or criminal cause is held, so far as the same is not inconsistent with the Constitution and laws of the United States, shall be extended to and govern the said courts in the trial and dis- position of the cause, and, if it is of a criminal nature, in the infliction of punishment on the party found guilty." (6 Fed. Stats. Ann., 2d ed., p. 120; 3 U. S. Comp. Stats. 1916, 1542.) 1203. Adoption of State Penal Laws for Reserved Federal Territory Within State Boundaries. 289, Cr. Code. "Whoever within the territorial limits of any state, organized territory, or district, but within or upon any of the places now existing or hereafter reserved or ac- quired, described in section two hundred and seventy-two of this act, shall do or omit the doing of any act or thing which is not made penal by any law of Congress, but which, if com- mitted or omitted wdthin the jurisdiction of the state, territory, or district in which such place is situated, by the laws thereof now in force, would be penal, shall be deemed guilty of a like offense and be subject to a like punishment; and every such state, territorial, or district law shall, for the purpose of this section, continue in force, notwithstanding any subsequent repeal or amendment thereof by any such state, territory, or district." (Fed. Stats. Ann., 2d ed., "Penal Laws"; 10 U. S. Comp. Stats. 1916, 10,462.) 1204. State and Federal Jurisdictions* of Offenses. Except within reserved territory as set out in the preceding: section under 289, Cr. Code, the federal courts do not execute the penal laws of a state ; nor have they any common-law criminal jurisdiction. 1 1 United States v. .Britton, 108 U. S. 199; 27 L. Ed. 698, 2 Sup. Ct. 531; Benson v. McMahon, 127 U. S. 457, 32 L. Ed. 234, 8 Sup. Ct. 1240; Jones v. 485 CRIMINAL JURISDICTION. Ch. 59, 1205 In criminal cases the law administered is entirely federal, pro- vided and prescribed by Congress under the limitations' of the Con- stitution. 2 The statute adopting state laws as rules of decision does not apply to criminal prosecutions in the federal courts. 3 The laws of evidence in federal criminal trials are those that existed in the states when the judiciary act was adopted in 1789 and as modified by subsequent acts of Congress. 4 The saline act may be an offense against both state and federal laws. 5 But this does not prevent the state court taking jurisdiction of and punishing the act done as an offense against the state ; nor a territory from punishing an act also punishable under federal law. 6 So long as the act done is within the punishing power of both state and nation, the fact that the state courts may not take jurisdiction of the crime as denounced by the federal law does not prevent their punishing it under the state law. 7 In a sense there are two distinct crimes involved in such cases ; 8 and an acquittal or conviction of one does not bar trial for the other on the ground of former jeopardy. 8 1205. Jurisdiction of State Courts Under State Laws not Affected. 326, Cr. Code. "Nothing in this title shall be held to take away or impair the jurisdiction of the courts of the several United States, 137 U. S. 202, 34 L. Ed. 691, 11 Sup. Ct. 80; United States v. Eaton, 144 U. S. 677, 36 L. Ed. 591, 12 Sup. Ct. 764; United States v. Wil- son, 3 Blatchf. (N. S.) 435, 438, Fed. Cas. No. 16,731; United States v. Plumer, 3 Cliff. 28, Fed. Cas. No. 16,056. 2 United States v. Reid, 12 How. (U. S.) 361, 363, 13 L. Ed. 1023. 3 Ibid. 4 7ft id; Logan v. United States, 144 U. S. 263, 36 L. Ed. 429, 12 Sup. Ct. 617; United States v. Hall, 53 Fed. 353. 5 United States v. Marigold, 9 How. (U. S.) 569, 13 L. Ed. 261; Fox v. Ohio, 5 How. (U. S.) 433, 12 L. Ed. 223; Moore v. Illinois, 14 How. (U. S.) 19, 14 L. Ed. 306; Ex parte Siebold, 100 U. S. 390, 25 L. Ed. 724; United States v. Wells, 28 Fed. Cas. No. 16,665; State v. Kirkpatrick, 32 Ark. 117, 121; People v. Welch, 141 N. Y. 2(56, 38 Am. St. Rep. 793, 24 L. B. A. 117, 36 N. E. 328. e Cross v. 'North Carolina, 132 U. S. 139, 33 L. Ed. 290, 10 Sup. Ct. 49; Crossley v. California, 168 U. S. 641, 42 L. Ed. 610, 18 Sup. Ct. 242. 7 Pettibone v. United States, 148 U. S. 197, 37 L.- Ed. 419, 13 Sup. Ct. 542. 8 United States v. Barnhart, 22 Fed. 285, 10 Sawy. 491; State v. Oleeon, 26 Minn. 507, 5 N. W. 959. State v. Sly, 4 Or. 277, 279; United States v. Amy, 14 Md. 149, note, 4 Quart. Law J. 163, Fed. Cas. No. 14,445; Carter v. McClaughry, 183 U. S. 365, 46 L. Ed. 236, 22 Sup. Ct. 181. 1206, Ch. 59 MANUAL OP FEDERAL PROCEDURE. 486 states under the laws thereof." (Fed. Stats. Ann., 2d ed., "Penal Laws"; 10 U. S. Coxnp. Stats. 1916, 10,500.) The making of certain offenses against the laws of the United States punishable does not prevent the states from taking hold of any offenses which may be involved that are contrary to state laws, and not cognizable under the United States laws. 10 2, Act February 13, 1913, c. 50. (Act punishing larceny and asportation of interstate shipments.) "That nothing in this act shall be held to take away or impair the jurisdiction of the courts of the several states under the laws thereof ; and a judgment of conviction or acquittal on the merits under the laws of any state shall be a bar to any prosecution hereunder for the same act or acts." (37 Stats. 670; 4 Fed. Stats. Ann., p. 575 ; 8 U. S. Comp. Stats. 1916, 8604, p. 9288.) j-.-ot :'&! iw/flrj rfj^i Manoipfj .=> r>mnu o'ffojto r: v 1206. Venue of Criminal and Penal Prosecutions. This sub- ject is treated in 75, 76, 77, 78 and 79, chapter 4, supra, and is only summarized here. Capital offenses in the county where the offense is committed, where that can be done without great inconvenience (40, Jud. Code). Offenses on the high seas or elsewhere out of the jurisdiction of a particular state or district, in the district where the offender is found or first brought ( 41, Jud. Code). Larceny, etc., of interstate shipments "in any district wherein the crime shall have been committed." Asporting such goods is a separate offense and "prosecutions therefor may be instituted in any district into which such freight, express, baggage, goods, or chattels shall have been removed or into which they shall have been brought by such offender." (Act February 13, 1913, c. 50, 37 Stats. 670, of which 2 is quoted in 1205, above.) Offenses committed in two districts, in either district (42, Jud. Code). Sale of arms and intoxicants on the Pacific islands deemed com- mitted on high seas or vessel belonging to United States ( 309, Cr. 10 Ex parte Houghton, 8 Fed. 897. 487 CRIMINAL JURISDICTION. Ch. 59, 120? Code). Vessel is defined in 310, Cr. Code, quoted in the last part, 1201 above. Pecuniary penalties and forfeitures where they accrue or the offender is found (43, Jud. Code). Seizures made on high seas for forfeitures, where the property is seized ( 45, Jud. Code). Condemnation of insurrectionary property where the same is seized or taken and proceedings first instituted (46, Jud. Code). Seizures on embargo or insurrection in any district into which the property so seized may be taken and proceedings instituted (47, Jud. Code). 1207. Statutes of Limitations Criminal Cases. Statutes of limitations is the general subject of chapter 10, supra. Limitations as to capital offenses are set out in 231, supra; offenses not capital, 232, 233 ; under the customs revenue laws, 239 ; under internal revenue laws, 235 ; seduction of female passenger, 236 ; violations of the naturalization laws, 237. 1220-1221, Ch. 60 MANUAL OF FEDERAL, PROCEDURE. 488 CHAPTER 60. GRAND JURY. SEC. 1220. When Grand Jury Summoned. 1221. Grand Jury to have not Less Than Sixteen nor More Than Twenty-thre* Members Talesmen. 1222. Foreman of Grand Jury. 1223. Discharge of Grand Juries. 1224. Grand Jury Indictments by at Least Twelve Jurors. 1220. When Grand Jury Summoned. 284, Jud. Code (Re-enacting 810, Rev. Stats., as amended Act March 28, 1910). "No grand jury shall be summoned to attend any district 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 in- habitants shall certify in writing to the district judge, or the senior district judge of the district, that the exigencies of the public service require it, the judge may, in his discretion, 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 im- prisonment before indictment found of a person accused of a crime or offense, or the time during which a person so ac- cused may be held under recognizance before indictment found." (36 Stats. 1165; 5 Fed. Stats. Ann. 2d ed., p. 1075; 2 U. S. Comp. Stats. 1916, 1261; Foster's Federal Practice, 5th ed., p. 1695.) 1221. Grand Jury to have not Less Than Sixteen nor More Than Twenty-three Members Talesmen. 282, Jud. Code (Re-enacting 808, Rev. Stats.). "Every grand jury impaneled before any district court shall consist of not less than sixteen nor more than twenty-three persons. 489 GRAND JURY. Ch. 60, 1222-1224 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 attendance other jurors sufficient to complete the grand jury, the court shall make a like order to the marshal to summon a sufficient number of persons for that purpose." (36 Stats. 1165; 5 Fed. Stats. Ann., 2d ed., p. 1074; 2 U. S. Comp. State. 1916, 1259; Foster's Federal Practice, 5th ed., p. 1698.) 1222. Foreman of Grand Jury. 283, Jud. Code (Re-enacting 809, Eev. Stats.}. "From the persons summoned and accepted as grand jurors, the court shall appoint the foreman, who shall have power to admin- ister oaths and affirmations to witnesses appearing before the grand jury." (36 Stats. 1165; 5 Fed. Stats. Ann., 2d ed., p. 1075; 2 U. S. Comp. Stats. 1916, 1260.) 1223. Discharge of Grand Juries. 285, Jud. Code (Re-enacting 811, Rev. Stats.). "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." (36 Stats. 1166; 5 Fed. Stats. Ann., 2d ed., p. 1077; 2 U. S. Comp. Stats. 1916, 1262; Foster's Federal Practice, 5th ed., p. 1695.) 1224. Grand Jury Indictments by at Least Twelve Jurors. 1021, Rev. Stats. "No indictment shall be found, nor shall any presentment be made, without the concurrence of at least twelve grand jurors." (2 Fed. State. Ann., 2d ed., p. 675 ; 3 U. S. Comp. State. 1916, 1685.) 1240-124:1, Ch. 61 MANUAL OF FEDERAL PROCEDURE. 490 CHAPTEK 61. INDICTMENTS. SEC. 1240. Form of Indictment for Perjury. 1241. Form of Indictment for Subornation of Perjury. 1242. Form of Indictment Before a Navy Court-martial. 1243. Joining Charges Against a Person in One Indictment Consolidation of Indictments. 1244. Defects of Form in Indictment Immaterial Unless Prejudicial. 1245. Judgment Bespondeat Ouster on Demurrer to an Indictment. 1240. Form of Indictment for Perjury. 5396, Rev. Stats. ' ' In every presentment or indictment prosecuted against any person for perjury, it shall be sufficient to set forth the substance of the offense charged upon the de- fendant, and by what court,' and before whom the oath was taken, averring such court or person to have competent au- thority to administer the same, together with the proper aver- ment to falsify the matter wherein the perjury is assigned, without setting forth the bill, answer, information, indictment, declaration, or any part of any record or proceeding, either in law or equity, or any affidavit, deposition, or certificate, other than as hereinbefore stated, and without setting forth the commission or authority of the court or person before whom the perjury was committed." (Fed. Stats. Ann., 2d ed., "Per- jury"; 3 U. S. Comp. Stats. 1916, 1687.) 1241. Form of Indictment for Subornation of Perjury. 5397, Rev. Stats. "In every presentment or indictment for subornation of perjury it shall be sufficient to set forth the substance of the offense charged upon the defendant, without setting forth the bill, answer, information, indict- ment, declaration, or any part of any record or proceeding, either in law or equity, or any affidavit, deposition, or cer- tificate, and without setting forth the commission or author- ity of the court or person before whom the perjury was com- mitted, or was agreed or promised to be committed." (Fed. Stats. Ann., 2d ed., "Perjury"; 3 U. S. Comp. Stats. 1916, 1668.) 491 INDICTMENTS. Ch. 61, 1242-121,") 1242. Form of Indictment Before a Navy Court-martial. 1023, Rev. Stats. "In prosecutions for perjury committed on examination before a naval general court-martial, or for the subornation thereof, it shall be sufficient to set forth the offense charged on the defendant, without setting forth the authority by which the court was held, or the particular mat- ters brought before, or intended to be brought before, said court." (Fed. Stats. Ann., 2d ed., "Perjury"; 3 U. S. Comp. Stats. 1916, 1689.) 1243. Joining Charges Against a Person in One Indict- ment Consolidation of Indictments. 1024, Rev. Stats. "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 in- dictments 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." (2 Fed. Stats. Ann., 2d ed., p. 676; 3 U. S. Comp. Stats. 1916, 1690.) 1244. Defects of Form in Indictment Immaterial Unless Prejudicial. 1025, Rev. Stats. "No indictment 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." (2 Fed. Stats. Ann., 2d ed., p. 681; 3 U. S. Comp. Stats. 1916, 1691.) 1245. Judgment Respondeat Ouster on Demurrer to an In- dictment. 1026, Rev. Stats. "In every case in any court of the United States, where a demurrer is interposed to an indict- ment, or to any count or counts thereof, or to any informa- tion, and the demurrer is overruled, the judgment shall be respondeat ouster; and thereupon a trial may be ordered at the same term, or a continuance may be ordered, as justice may require." (2 Fed. Stats. Ann., 2d ed., p. 687; 3 U. S. Comp. Stats. 1916, 1692.) 1260, Ch. 62 MANUAL OP FEDERAL PROCEDURE. 492 CHAPTER 62. . ARREST AND BAIL CIVIL AND CRIMINAL. SEC. 1260. Arrest Imprisonment Bail Removal for Trial Offenders Against the United States. 1261. Marshal Making Arrest to Take Prisoner to Nearest Judicial Officer and Return Before Such Officer the Warrant With Certified Copy of Complaint Attached. 1262. Officers Authorized to Hold to Security of the Peace and for Good Be- havior. 1263. Bail Admitted in Cases not Capital. 1264. Bail Admitted in Capital Cases Only by Court or Judge. 1265. Bail in Criminal Cases Removed by Writ of Error from State Court. 1266. Bail Surrender of. 1267. New Bail as Better Security. 1268. Recognizance Remittance of Forfeiture of. 1269. Copy of Writ Jailer's Authority and Original Returned With Of- ficer's Return. 1270. Writ for Removal of Prisoner from One District to Another. 1271. One Writ Sufficient Where Several Indictments Against Same Person, 1272. No Writ Necessary to Bring into Court Person in Custody. 1273. Special Bail in Suits for Duties or Penalties in States Where Imprison- ment for Debt not Abolished. 1274. Committing Defendant Who has Given Bail in Another District. 1275. Same Holding Defendant Until Final Judgment in First Suit. 1276. Calling Bail in Kentucky. 1277. Bail de Bene Esse by Clerks in Absence of Judges. 1260. Arrest Imprisonment Bail Removal for Trial Offenders Against the United States. 1014, Rev. Starts. "For any crime or offense against the United States, the offender may, by any justice or judge of the United States, or by any commissioner of a circuit court to take bail, or by any chancellor, judge of a supreme or superior court, chief or first judge of common pleas, mayor of a city, justice of the peace, or other magistrate, of any state where he may be found, and agreeably to the usual mode of process against offenders in such state, and at the expense of the United States, be arrested and imprisoned, or bailed, as the case may be, for trial before such court of the United 493 ARREST AND BAIL CIVIL AND CRIMINAL. Ch. 62, 1261-1262 States as by law has cognizance of the offense. Copies of the process shall be returned as speedily as may be into the clerk's office of such court, together with the recognizances of the wit- nesses for their appearance to testify in the case. And where any offender or witness is committed in any district other than that where the offense is to be tried, it shall be the duty of the judge of the district where such offender or witness is im- prisoned, seasonably to issue, and of the marshal to execute, a warrant for his removal to the district where the trial is to be had." (2 Fed. Stats. Ann., 2d ed., p. 654; 3 U. S. Comp. Stats. 1916, 1674.) 1261. Marshal Making 1 Arrest to Take Prisoner to Nearest Judicial Officer and Return Before Such Officer the Warrant with Certified Copy of Complaint Attached. Act Aug. 18, 1894, c. 301. "Provided, That it shall be the duty of the marshal, his deputy, or other officer, who may arrest a person charged with any crime or offense, to take the defendant before the nearest circuit court commissioner or the nearest judicial officer having jurisdiction under existing laws for a hearing, commitment, or taking bail for trial, and the officer or magistrate issuing the warrant shall attach thereto a certified copy of the complaint, and upon the arrest of the accused, the return of the warrant, with a copy of the com- plaint attached, shall confer jurisdiction upon such officer as fully as if the complaint had originally been made before him, and no mileage shall be allowed any officer violating the provisions hereof." (2 Fed. Stats. Ann., 2d ed., p. 674; 3 U. S. Comp. Stats. 1916, 1678.) 1262. Officers Authorized to Hold to Security of the Peace and for Good Behavior. 270, Jud. Code (Drawn from 757, Rev. Stats.). "The judges of the Supreme Court and of the circuit court of ap- peals and district courts, United States commissioners, and the judges and other magistrates of the several states who are or may be aiithorized by law to make arrests for offenses against the United States, shall have the like authority to hold to security of the peace and for good behavior, in cases arising under the Constitution and laws of the United States, as may 1263-1265, Ch. 62 MANUAL OP FEDERAL PROCEDURE. 494 be lawfully exercised by any judge or justice of the peace of the respective states, in cases cognizable before them." (36 Stats. 1163 ; 5 Fed. Stats. Ann., 2d ed., p. 1056 ; 2 U. S. Comp. Stats. 1916, 1247.) Bail and affidavits in civil cases may be taken by a court commis- sioner under 945, Rev. Stats. ; 4 Fed. Stats. Ann., p. 772 ; 3 U. S. Comp. Stats. 1916, 1571. 1263. Bail Admitted in Cases not Capital. 1015, Rev. Stats. "Bail shall be admitted upon all arrests in criminal cases where the offense is not punishable by death ; ' and in such cases it may be taken by any of the persons au- thorized by the preceding section [1260, supra], to arrest and imprison offenders." (1 Fed. Stats. Ann., 2d ed., p. 490; 3 U. S. Comp. Stats. 1916, 1679.) 1264. Bail Admitted in Capital Cases Only by Court or Judge. 1016, Rev. Stats. "Bail may be admitted upon all arrests in criminal cases where the punishment may be death; but in such cases it shall be taken only by the Supreme Court or a circuit court, or by a justice of the Supreme Court, a cir- cuit judge, or a judge of a district court, who shall exercise their discretion therein, having regard to the nature and circumstance of the offense, and of the evidence, and to the usages of law." (1 Fed. Stats. Ann., 2d ed., pp. 490, 491; 3 U. S. Comp. Stats. 1916, 1680.) 1265. Bail in Criminal Cases Removed by Writ of Error from State Court. 1017, Rev. Stats. "When a writ of error is issued for the revision of the judgment of a state court, in any criminal pro- ceeding where is drawn in question the validity of a statute of, or an authority exercised under, the United States, or where any title, right, privilege, or immunity is claimed under the Constitution, or any statute of, or commission held or authority exercised under, the United States, the defendant, if charged with an offense that is bailable by the laws of such state, shall not be released from custody until a final judgment upon such 495 ARREST AND BAIL CIVIL AND CRIMINAL. Oh. 62, writ, or until a bond, with sufficient sureties, in a reasonable sum, as ordered and approved by the state court, is given ; and if the offense is not so bailable, until a final judgment upon the writ of error. " (1 Fed. Stats. Ann., 2d ed., p. 491 ; 3 U. S. Comp. Stats. 1916, 1681.) 1266. Bail Surrender of. 1018, Rev. Stats. "Any party charged with a criminal offense and admitted to bail may, in vacation, be arrested by his bail, and delivered to the marshal or his deputy, before any judge or other officer having power to commit for such offense ; and at the request of such bail, the judge or other officer shall recommit the party so arrested to the custody of the marshal, and indorse on the recognizance, or certified copy thereof, the discharge and exoneretur of such bail ; and the party so com- mitted shall therefrom be held in custody until discharged by due course of law." (1 Fed. Stats. Ann., 2d ed., p. 491; 3 U. S. Comp. Stats. 1916, 1682.) 1267. New Bail as Better Security. 1019, Rev. Stats. "When proof is made to any judge of the United States, or other magistrate having authority to com- mit on criminal charges as aforesaid, that a person previously admitted to bail on any such charge is about to abscond, and that his bail is insufficient, the judge or magistrate shall require such person to give better security; or, for default thereof, cause him to be committed to prison ; and an order for his arrest may be indorsed on the former commitment, or a new warrant therefor may be issued by such judge or magistrate, setting forth the cause thereof." (1 Fed. Stats. Ann., 2d ed., p. 492; 3 U. S. Comp. Stats. 1916, 1683.) 1268. Recognizance Remittance of Forfeiture of. 1020, Rev. Stats. ' ' When any recognizance in a criminal cause, taken for, or in, or returnable to, any court of the United States, is forfeited by a breach of the condition thereof, such court may, in its discretion, remit the whole or a part of the penalty, whenever it appears to the court that there has been no wilful default of the party, and that a trial can, notwith- 1269-1272, Ch. 62 MANUAL OF FEDERAL PROCEDURE. 496 standing, be had in the cause, and that public justice does not otherwise require the same penalty to be enforced." (1 Fed. Stats. Ann., 2d ed., p. 492; 3 U. S. Comp. Stats. 1916, 1684.) 1269. Copy of Writ Jailer 's Authority and Original Re- turned With Officer's Return. 1028, Rev. Stats. "Whenever a prisoner is committed to a sheriff or jailer by virtue of a writ, warrant, or mittimus, a copy thereof shall be delivered to such sheriff or jailer, as his authority to hold the prisoner, and the original writ, warrant, or mittimus shall be returned to the proper court or officer, with the officer's return thereon." (2 Fed. Stats. Ann., 2d ed., p. 672; 3 U. S. Comp. Stats. 1916, 1694.) 1270. Writ for Removal of Prisoner from One District to Another. 1029, Rev. Stats. "Only one writ or warrant is necessary to remove a prisoner from one district to another. One copy thereof may be delivered to the sheriff or jailer from whose custody the prisoner is taken, and another to the sheriff or jailer to whose custody he is committed, and the original writ, with the marshal 's return thereon, shall be returned to the clerk of the district to which he is removed." (2 Fed. Stats. Ann., 2d ed., p. 673; 3 U. S. Comp. Stats. 1916, 1695.) 1271. One Writ Sufficient Where Several Indictments Against Same Person. 1027, Rev. Stats. "When two or more charges are made, or two or more indictments are found against any person, only one writ or warrant shall be necessary to commit him for trial , and it shall be sufficient to state in the writ the name or gen- eral character of the offenses, or to refer to them only in very general terms." (2 Fed. Stats. Ann., 2d ed., p. 672; 3 U. S. Comp. Stats. 1916, 1693.) 1272. No Writ Necessary to Bring into Court Person in Custody. 1030, Rev. Stats. "No writ is necessary to bring into court any prisoner or person in custody, or for remanding 497 ARREST AND BAIL CIVIL AND CRIMINAL. Ch. 62, 1273-1274 him from the court into custody; but the same shall he done on the order of the court or district attorney, for which no fees shall be charged by the clerk or marshal." (2 Fed. Stats. Ann., 2d ed., p. 673; 3 U. S. Comp. Stats. 1916, 1696.) 1273. Special Bail in Suits for Duties or Penalties in States Where Imprisonment for Debt not Abolished. 942 , Rev. Stats. "In all suits or prosecutions for the re- covery of duties or pecuniary penalties prescribed by the laws of the United States, commenced in any state where, by the laws thereof, imprisonment for debt shall not have been abol- ished, the person against whom process is issued shall be held to special bail, subject to the rules which prevail in civil suits in which special bail is required." (1 Fed. Stats. Ann., 2d ed., p. 488; 3 U. S. Comp. Stats. 1916, 1568.) 1274. Committing Defendant Who has Given Bail in Another District. 943, Rev. Stats. ' ' When a defendant who has procured bail to respond to the judgment in a suit in any court of the United States in any district is afterward arrested in any other district and is committed to a jail, the use of which had been ceded to the United States for the custody of prisoners, the judge of the court wherein the suit in which the defendant ' has so procured bail is depending, shall, at the request of the bail, order that such defendant be held in said jail, in the custody of the marshal of the district in which it is. The said marshal, upon the delivery of such order, duly authenticated, shall receive such person into his custody, and thereupon be chargeable for an escape, and shall forthwith make a certifi- cate, under his hand and seal of such commitment, and trans- mit the same to the court from which the order issued, and, if required, shall make and deliver to such bail or to his attor- ney a duplicate thereof. Upon the return of said certificate, the court which made the said order, or any judge thereof, may direct that an exoneretur be entered upon the bailpiece, where special bail shall have been found, or otherwise discharge such bail." (1 Fed. Stats. Ann., 2 ed., p. 489; 3 U. S. Comp. Stats. 1916, 1569.) Manual 32 1275-1277, Ch. 62 MANUAL OP FEDERAL PROCEDURE. 498 1275. Same Holding Defendant Until Final Judgment in First Suit. 944, Rev. Stats. "When a defendant is committed by vir- tue of the order provided in the preceding section, he shall, unless sooner discharged by law, be holden in jail until final judgment is rendered in the suit in which he procured bail as aforesaid, and sixty days thereafter, if such judgment is ren- dered against him, in order that he may be charged in execu- tion, which may, in such cases, be directed to and served by the marshal in whose custody he is." (1 Fed. Stats. Ann., 2d ed., p. 489; 3 U. S. Comp. Stats. 1916, 1570.) 1276. Calling Bail in Kentucky. 946, Rev. Stats. ' ' When a bail bond is given for the ap- pearance of any person to answer in the district or circuit court for the district of Kentucky, the clerk of such court shall call the party at the time he is bound to appear. If the party fails, the clerk shall enter such failure on his minutes, and on said entry judgment may afterward be made of record by the court; but if the party appears, the clerk shall take another bond, with sureties similar to the first, for further appearance at the next succeeding term of the court, and if the party fails to give such other bond and surety, he shall stand committed by order of the clerk until he complies." (1 Fed. Stats. Ann., 2d ed., p. 489 ; 3 U. S. Comp. Stats. 1916, 1572.) 1277. Bail de Bene Esse by Clerks in Absence of Judges. 547, Rev. Stats. "Recognizances of special bail may be taken de bene esse by the clerks of the circuit and district courts, in the absence or in case of the disability of the judges, in any action depending in either of the said courts, where special bail is demandable." (1 Fed. Stats. Ann., 2d ed., pp. 489, 490; 3 U. S. Comp. Stats. 1916, 1573.) 499 EXTRADITION. Ch. 63, 1300 CHAPTER 63. EXTRADITION. SEC. 1300. When and by Whom Warrant may Issue for Arrest of Fugitive from Justice from a Foreign Country. 1301. Person Held for Extradition Only on Evidence Establishing Probable Cause. 1302. No Extradition for Political Offense. 1303. Extradition to Foreign Country or Territory Occupied or Under Control of United States of Persons Committing Certain Offenses. J304. Hearing Certification of Testimony to Secretary of State Warrant for Commitment Pending Surrender. 1305. Hearing to be Public on Land. 1306. Witnesses for Indigent Prisoners. 1307. Evidence on the Hearing. 1308. Surrender of Person by Secretary of State for a Fair and Impartial Trial. 1309. Retaking of Escaped Person Held for Extradition. 1310. Time Allowed for Extradition Two Months After Commitment. 1311. Extradition Provisions Continue During Existence of Treaty. 1312. Transportation and Protection of Person Extradited to the United States. 1313. Same Powers of Agent Receiving Such Persons Extradited from For- eign Country. 1314. Same Penalty for Opposing Agent or Attempting Rescue. 1316. Interstate Extradition. 1316. Penalty for Resisting Agent or Attempting Rescue, Interstate Extra- dition. 1300. When and by Whom Warrant may Issue for Arrest of Fugitive from Justice from a Foreign Country. First Part, 5270. "Whenever there is a treaty or conven- tion for extradition between the government of the United States and any foreign government, any justice of the Supreme Court, circuit judge, district judge, commissioner, authorized so to do by any of the courts of the United States, or judge of a court of record of general jurisdiction of any state, may, upon complaint made under oath, charging any person found within the limits of any state, district, or territory, with having committed within the jurisdiction of any such foreign govern- 1301-1303, Ch. 63 MANUAL OF FEDERAL PROCEDURE. 500 ment any of the crimes provided for by such treaty or con- vention, issue his warrant for the apprehension of the person so charged, that he may be brought before such justice, judge, or commissioner, to the end that the evidence of criminality may be heard and considered. . . . ' (3 Fed. Stats. Ann., 2d ed., p. 265; 10 U. S. Comp. Stats. 1916, 10,110, p. 12,367.) 1301. Person Held for Extradition Only on Evidence Estab- lishing Probable Cause. Part 5270, Rev. Stats. "... Provided, further, That such proceedings shall be had before a judge of the courts of the United States only, who shall hold such person on evidence establishing probable cause that he is guilty of the offense charged: . . ." (3 Fed. Stats. Ann., 2d ed., p. 265; 10 U. S. Comp. Stats. 1916, 10,110, p. 12,368.) 1302. No Extradition for Political Offense. Part 5270, Rev. Stats. " . . . And provided further, That no return or surrender shall be made of any person charged with the commission of any offense of a political nature. ..." (3 Fed. Stats. Ann., 2d ed., p. 265 ; 10 U. S. Comp. Stats. 1916, 10,110, p. 12,368.) 1303. Extradition to Foreign Gauntry or Territory Occupied or Under Control of United States of Persons Committing Certain Offenses. Part 5270, Rev. Stats. "... Provided, That whenever any foreign country or territory, or any part thereof, is occu- pied by or under the control of the United States, any person who shall violate, or who has violated, the criminal laws in force therein, by the commission of any of the following offenses, namely: Murder and assault with intent to commit murder; counterfeiting or altering money, or uttering or bringing into circulation counterfeit or altered money; coun- terfeiting certificates or coupons of public indebtedness, bank notes, or other instruments of public credit, and the utterance or circulation of the same; forgery or altering and uttering what is forged or altered; embezzlement or criminal malver- sation of the public funds, committed by public officers, em- 501 EXTRADITION. Ch. 63, 1304 ployees, or depositaries; larceny or embezzlement of an amount not less than one hundred dollars in value ; robbery ; burglary, defined to be the breaking and entering by night time into the house of another person with intent to commit a felony therein ; and the act of breaking and entering the house or building of another, whether in the day or night time, with the intent to commit a felony therein ; the act of entering, or of breaking and entering, the offices of the government and public authorities, or the offices of banks, banking houses, savings banks, trust companies, insurance or other companies, with the intent to commit a felony therein; perjury or the sub- ornation of perjury; rape, arson; piracy by the law of nations; murder, assault with intent to kill, and manslaughter, com- mitted on the high seas, on board a ship owned by or in con- trol of citizens or residents of such foreign country or terri- tory, and not under the flag of the United States or of some other government; malicious destruction of or attempt to de- stroy railways, trams, vessels, bridges, dwellings, public edifices, or other buildings, when the act endangers human life, and* who shall depart or flee, or who has departed or fled, from justice therein to the United States, any territory thereof or to the District of Columbia, shall, when found therein, be liable to arrest and detention by the authorities of the United States, and on the written request or requisition of the military governor or other chief executive officer in control of such foreign country or territory shall be returned and surrendered, as hereinafter provided, to such authorities for trial under the laws in force in the place where such offense was committed. All the provisions of sections fifty-two hundred and seventy to fifty-two hundred and seventy-seven of this title, so far as applicable, shall govern proceedings authorized by this pro- viso: ..." (3 Fed. Stats. Ann., 2d ed., p. 266; 10 U. S. Comp. Stats. 1916, 10,110, p. 12,367.) 1304. Hearing Certification of Testimony to Secretary of State Warrant for Commitment Pending Surrender. Part 5270, Rev. Stats. " ... If, on such hearing, he deems the evidence sufficient to sustain the charge under the provisions of the proper treaty or convention, he shall certify the same, together with a c6py of all the testimony taken before him, to the Secretary of State, that a warrant may issue^upon 1305-1307, Ch. 03 MANUAL OF FEDERAL PROCEDURE. 502 the requisition of the proper authorities of such foreign gov- ernment, for the surrender of such person, according to the stipulations of the treaty or convention ; and he shall issue his warrant for the commitment of the person so charged to the proper jail, there to remain until such surrender shall be made. ..." (3 Fed. Stats. Ann., 2d ed., p. 265; 10 U. S. Comp. Stats. 1916, 10,110, p. 12,367.) 1305. Heaiing to be Public on Land. 1, Act Aug. 3, 1882, c. 378. "That all hearings in cases of extradition under treaty stipulation or convention shall be held on land, publicly, and in a room or office easily accessible to the public." (22 Stats. 215; 3 Fed. Stats. Ann., 2d ed., p. 312; 10 U. S. Comp. Stats. 1916, 10,112, p. 12,396.) 1306. Witnesses for Indigent Prisoners. 3, Act Aug. 3, 1882, c. 378. "That on the hearing of any case under a claim of extradition by any foreign government, upon affidavit being filed by the person charged, setting forth that there are witnesses whose evidence is material to his defense, that he cannot safely go to trial without them, what he expects to prove by each of them, and that he is not pos- sessed of sufficient means, and is actually unable to pay the fees of such witnesses, the judge or commissioner before whom such claim for extradition is heard may order that such wit- nesses be subpoenaed; and in such cases the costs incurred by the process, and the fees of witnesses, shall be paid in the same manner that similar fees are paid in the case of witnesses subpoenaed in behalf of the United States." (3 Fed. Stats. Ann., 2d ed., p. 312; 10 U. S. Comp. Stats. 1916, 10,114; Charlton v. Kelly, 229 U. S. 447, 37 L. Ed. 1274, 46 L. R. A. (N. S.) 397, 33 Sup. Ct. 945.) 1307. Evidence on the Hearing. 5 and 6, Act Aug. 3, 1882, c. 378. "Sec. 5 (Evidence on hearing). That in all cases where any depositions, warrants, or other papers or copies thereof shall be offered in evidence upon the hearing of any extradition case under title sixty-six of the Revised Statutes of the United States, such depositions, warrants, and other papers, or the copies thereof, shall be re- 503 EXTRADITION. Ch. 63, 1308 ceived and admitted as evidence on such hearing for all the purposes of such hearing if they shall be properly and legally authenticated so as to entitle them to be received for similar purposes by the tribunals of the foreign country from which the accused party shall have escaped, and the certificate of the principal diplomatic or consular officer of the United States resident in such foreign country shall be proof that any depo- sition, warrant, or other paper or copies thereof, so offered, are authenticated in the manner required by this act." (3 Fed. Stats. Ann., 2d ed., p. 313 ; 10 U. S. Comp. Stats. 1916, 10,116 ; Ex parte Schorer, 197 Fed. 67 ; Ex parte La Mantia, 206 Fed. 330.) "Sec. 6. (Repeal.) The act approved June nineteenth, eighteen hundred and seventy -six, entitled, 'An Act to Amend Section fifty-two hundred and seventy-one of the Revised Stat- utes of the United States,' and so much of said section fifty- two hundred and seventy-one of the Revised Statutes of the United States as is inconsistent with the provisions of this act are hereby repealed." (22 Stats. 215; 3 Fed. State. Ann., 2d ed., p. 315.) 5271, Rev. Stats. " (Evidence on the hearing.) In every case of complaint, and of a hearing upon the return of the warrant of arrest, copies of the depositions upon which an original warrant in any foreign country may have been granted, certified under the hand of the person issuing such warrant, and attested upon the oath of the party producing them to be true copies of the original depositions, may be re- ceived in evidence of the criminality of the person so appre- hended, if they are authenticated in such manner as would entitle them to be received for similar purposes by the tribunals of the foreign country from which the accused party escaped. The certificate of the principal diplomatic or consular officer of the United States resident in such foreign country shall be proof that any paper or other document so offered is authen- ticated in the manner required by this section. " (3 Fed. Stats. Ann., 2d ed., p. 281; 10 U. S. Comp. Stats. 1916, 10,111.) 1308. Surrender of Person by Secretary of State for a Fair and Impartial Trial. Last Part 5270, Rev. Stats. " ... If so held such person shall be returned and surrendered to the authorities in con- 1309-1310, Ch. 63 MANUAL OP FEDERAL PROCEDURE. 504 trol of such foreign country or territory on the order of the Secretary of State of the United States, and such authorities shall secure to such a person a fair and impartial trial." (3 Fed. Stats. Ann., 2d ed., p. 265; 10 U. S. Comp. Stats. 1916, 10,110, p. 12,368.) First Part 5 272, Eev. Stats. "It shall be lawful for. the Secretary of State, under his hand and seal of office, to order the person so committed to he delivered to such person as shall be authorized, in the name and on behalf of such foreign government, to be tried for the crime of which such person shall be so accused, and such person shall be delivered up accordingly; and it shall be lawful for the person so author- ized to hold such person in custody, and to take him to the territory of such foreign government, pursuant to such treaty. ..." (3 Fed. Stats. Ann., 2d ed., p. 282; 10 U. S. Comp. Stats. 1916, 10,118.) 1309. Retaking of Escaped Person Held for Extradition. Last Part 5272, Rev. Stats. " ... If the person so ac- cused shall escape out of any custody to which he shall be committed, or to which he shall be delivered, it shall be lawful to retake such person in the same manner as any person accused of any crime against the laws in force in that part of the United States to which he shall so escape, may be retaken on an escape." (3 Fed. Stats. Ann., 2d ed., p. 282; 10 U. S. Comp. Stats. 1916, 10,118.) 1310. Time Allowed for Extradition Two Months After Com- mitment. 5273, Rev. Stats. "Whenever any person who is com- mitted under this title or any treaty, to remain until delivered up in pursuance of a requisition, is not so delivered up and conveyed out of the United States within two calendar months after such commitment, over and above the time actually re- quired to convey the prisoner from the jail to which he was committed, by the readiest way, out of the United States, it shall be lawful for any judge of the United States, or of any state, upon application made to him by or on benalf of the person so committed, and upon proof made to him that reason- able notice of the intention to make such application has been 505 EXTRADITION. Ch. 63, 1311-1313 given to the Secretary of State, to order the person so com- mitted to be discharged out of custody, unless sufficient cause is shown to such judge why such discharge ought not to be ordered." (3 Fed. Stats. Ann., 2d ed., p. 283 ; 10 U. S. Comp. Stats. 1916, 10,119.) 1311. Extradition Provisions Continue During Existence of Treaty. 5374, Rev. Stats. "The provisions of this title relating to the surrender of persons who have committed crimes in foreign countries shall continue in force during the existence of any treaty of extradition with any foreign government, and no longer." (3 Fed. Stats. Ann., 2d ed., p. 283; 10 U. S. Comp. Stats. 1916, 10,120.) 1312. Transportation and Protection of Person Extradited to the United States. 5575, Rev. Stats. "Whenever any person is delivered by any foreign government to an agent of the United States, for the purpose of being brought within the United States and tried for any crime of which he is duly accused, the President shall have power to take all necessary measures for the trans- portation and safe-keeping of such accused person, and for his security against lawless violence, until the final conclusion of his trial for the crimes or offenses specified in the warrant of extradition, and until his final discharge from custody or imprisonment fbr or on account of such crimes or offenses, and for a reasonable time thereafter, and may employ such portion of the land or naval forces of the United States, or of the militia thereof, as may be necessary for the safe-keeping and protection of the accused." (3 Fed. Stats. Ann., 2d ed., p. 283; 10 U. S. Comp. Stats. 1916, 10,121.) 1313. Same Powers of Agent Receiving Such Persons Ex- tradited from Foreign Country. 5575, Rev. Stats. "Any person duly appointed as agent to receive, in behalf of the United States, the delivery, by a foreign government, of any person accused of crime committed within the jurisdiction of the United States, and to convey him 1314-1315, Ch. 63 MANUAL OP FEDERAL PROCEDURE. 506 to the place of his trial, shall have all the powers of a marshal of the United States, in the several districts through which it may be necessary for him to pass with such prisoner, so far as such power is requisite for the prisoner's safe-keeping." (3 Fed. Stats. Ann., 2d ed., p. 284; 10 U. S. Comp. Stats. 1916, 10,122.) 1314. Same Penalty for Opposing Agent or Attempting Rescue. 5577, Rev. Stats. ' ' Every person who knowingly and will- fully obstructs, resists, or opposes such agent in the execution of his duties, or who rescues or attempts to rescue such pris- oner, whether in the custody of the agent or of any officer or person to whom his custody has lawfully been committed, shall be punishable by a fine of not more than one thousand dollars, and by imprisonment for not more than one year." (3 Fed. Stats. Ann., 2d ed., p. 284; 10 U. S. Comp. Stats. 1916, 10,123.) 1315. Interstate Extradition. 5578, Rev. Stats. "Whenever the executive authority of any state or territory demands any person as a fugitive from justice, of the executive authority of any state or territory to which such person has fled, and produces a copy of an indict- ment found or an affidavit made before a magistrate of any state or territory, charging the person demanded with having committed treason, felony, or other crime, 'certified as authentic by the governor or chief magistrate of the state or territory from whence the person so charged has fled, it shall be the duty of the executive authority of the state or territory to which such person has fled to cause him to be arrested and secured, and to cause notice of the arrest to be given to the executive authority making such demand, or to the agent of such authority appointed to receive the fugitive, and to cause the fugitive to be delivered to such agent when he shall appear. If no such agent appears within six months from the time of the arrest, the prisoner may be discharged. All costs or ex- penses incurred in the apprehending, securing, and trans- mitting such fugitive to the state or territory making such EXTRADITION. Ch. 63, 1316 demand shall be paid by such state or territory." (3 Fed. Stats. Ann., 2d ed., p. 285; 10 U. S. Comp. Stats. 1916, 10,126.) 1316. Penalty for Resisting Agent or Attempting Rescue, Interstate Extradition. 5575, Rev. Stats. "Any agent so appointed who receives the fugitive into his custody shall be empowered to transport him to the state or territory from which he has fled. And every person who, by force, sets at liberty or rescues the fugi- tive from such agent while so transporting him, shall be fined not more than five hundred dollars or imprisoned not more than one year." (3 Fed. Stats. Ann., 2d ed., p. 311; 10 U. S. Comp. Stats. 1916, 10,127.) 1330-1331, Ch. 64 MANUAL OP FEDERAL PROCEDURE. 508 CHAPTER 64. HABEAS CORPUS. SEC. 1330. Constitutional Provision. 1331. Courts Authorized to Issue Writ of Habeas Corpus. 1332. Power of Judges to Grant Writs of Habeas Corpus. 1333. Cases Where Federal Writ of Habeas Corpus will Issue. 1334. Application for Writ of Habeas Corpus How Ma2, growing out of any treaty with foreign nations or Indian tribes. 153, Jud. Code (Appendix, post). An act conferring jurisdiction -in the Court of Claims to hear, determine and render judgment in claims of the Sisseton and Walepton bands of Sioux Indians against the United States. Right of appeal is given to either party to the Supreme Court of the United States. 39 Stats., 47, c. 63. No person shall file and prosecute in the Court of Claims or in the Supreme Court on appeal therefrom any claim against a per- son claiming authority from the United States government when such claim is pending elsewhere. 154, Jud. Code (Appendix, post). Any alien whose government allows citizens of the United States to prosecute claims against said government in its courts 535 COURT OF CLAIMS. Ch. 68, 1432 shall be accorded the same privilege in the United States Court of Claims, provided the court has jurisdiction over the subject matter. 155, Jud. Code (Appendix, post). The Court of Claims shall have jurisdiction to hear and deter- mine all claims for proceeds of abandoned property and to ad- judge said claims. 162, Jud. Code (Appendix, post). The Court of Claims has jurisdiction to take over claims trans- mitted to it by any other executive department and to decide all controverted questions of fact and law, provided, however, it has been transmitted with the consent of the claimant, and report its findings to the department. 148, Jud. Code (Appendix, post). All claims transmitted to Court of Claims by head of depart- ments shall be proceeded in as other claims pending in the Court of Claims and subject to the same rules and regulations. 149, Jud. Code (Appendix, post). Whenever any bill is pending in either house of Congress pro- viding for payment of a claim against the United States, said bill may be referred to Court of Claims for investigation of facts and a report is to be made to the house concerning said bill, pro- vided the court has jurisdiction over subject-matter of the bill. 151, Jud. Code (Appendix, post). 180, Jud. Code (Appendix, post), provides for the settlement and adjustment by the Court of Claims of debts due to the United States. 5261, Rv. Stats. (10 U. S. Comp. Stats. 1916, 10,068, p. 12,322), provides for the right of any railway company to bring suit in the Court of Claims on bonds issued to said com- pany, the interest on which has not been paid. Every owner of a patent may bring suit to recover in the Court of Claims for the unlicensed use of said patent by the United States. (Act June 25, 1910, c. 423; 9 U. S. Comp. Stats. 1916, 9465, p. 10,457.) 1433-1434, Ch. 68 MANUAL, OF FEDERAL PROCEDURE. 536 1433. Statute of Limitations. Every claim cognizable by the Court of Claims shall be forever barred unless filed as pro- vided by law within six years after said claim accrues, except- ing in a case of married women, infants and idiots, lunatics, and insane persons, and persons beyond the seas, and in this case within three years after disability has ceased. 156, Jud. Code (Appendix, post). 1434. Rules of Practice. 157, Jud. Code (Appendix, post), provides for powers of the court to establish its rules of government and practice. The claimant in all cases must set forth fully his claim in his petition, the action of Congress or any department upon the same, and persons interested therein. When and upon what consider- ation said persons became interested, that there is no assignment or transfer of interest on said Claim except as is stated in the petition. That said claimant is justly entitled to the amount claimed from the United States, after allowing all just credits and offsets. That the claimant, if a citizen, has at all times borne true allegiance to the government of the United States and whether a citizen or not, has in no way aided or abetted or given encouragement to a rebellion against the United States, the petition shall be verified by the said claimant, his attorney or agent. 159, Jud. Code (Appendix, post). The judges and clerks of said court may administer oaths and affirmations and take acknowledgments of instruments in writ- ing and give certificates of the same. 158, Jud. Code (Appen- dix, post). As to whether a person aided or not the rebellion, known as the Civil "War, is a jurisdictional fact to be considered before allowing the claim ; in the case of a claim against the United States for stores furnished the army or navy. 184, Jud. Code (Appendix, post). The Attorney General or his assistants under his direction shall appear for the defense and protection of the interests of the 537 COURT OF CLAIMS. Ch. 68, 1434 United States in all cases which may be transmitted to the Court of Claims. 185, Jud. Code (Appendix, post). No claims shall be allowed by the accounting officers or the Court of Claims wherein the claimant claims more than is justly due; and does this with the intent to defraud the United States. 173, Jud. Code (Appendix, post). In cases where the claimant corruptly practices or attempts to practice fraud against the United States in representing his claim, the claimant shall "ipso facto" fbrfeit his claim forever, and this is a bar to further prosecution of the same. 172, Jud. Code (Appendix, post). When the facts set out in petition appear in the mind of the court insufficient for grounds of relief, the court shall not au- thorize the taking of any testimony. 165, Jud. Code (Appen- dix, post). 160, Jud. Code (Appendix, post), provides for traverse by the government in allegations as to true allegiance and not aiding or abetting any rebellion against the United States. And also if said issues are decided against the claimant, said petition shall be dismissed. The burden of proof is on the claimant in all actions regarding the loyalty or disloyalty of individuals during the Civil War. 161, Jud. Code (Appendix, post). The method of taking testimony to be used before the Court of Claims is by commission. The Court of Claims shall have the right to appoint commissioners to take testimony and also gives power to prescribe the fees they are to receive. 163, Jud. Code (Appendix, post). 167, Jud. Code (Appendix, post), provides that the testimony in cases pending in the Court of Claims shall be taken in the county in which the witness resides, when the same can be done conveniently. 168, Jud. Code (Appendix, post), provides for the issuing of subpoenas by the Court of Claims. 1440, Ch. 68 MANUAL OF FEDERAL PROCEDURE. 540 justment of claims against the United States. The purpose of these reports is to furnish guides in like cases. The Attorney General shall report to Congress, at the beginning of each regular session, the suits under section 180, Jud. Code (Ap- pendix, post), in which a final judgment or decree has been ren- dered, giving date and statement of costs in each case. 183, Jud. Code (Appendix, post). The payment on claims referred from departments and decided by the Court of Claims in favor of the claimant shall be made out of any specific appropriation applicable to the case, and where no appropriation exists it shall be paid in same manner as any other decree of said court. 150, Jud. Code (Appendix, post). Reports of the Court of Claims to Congress under 148 and 151, Jud. Code (Appendix, post), if not acted upon during session at which they were reported, shall be continued from session to session and Congress to Congress until finally acted upon. 187, Jud. Code (Appendix, post). All judgments in favor of the government, on setoffs or counter- claims, shall be enforced the same as any other judgment of said court would be enforced. 146, Jud. Code (Appendix, post). 1440. Appeals. The United States or the claimant shall have the right to appeal as provided and restricted according to law. 181, Jud. Code (Appendix, post). In Indian cases the United States or the tribe of Indians, or other party in interest, shall have the right of appeal as prescribed and provided for by law. 182, Jud. Code (Appendix, post). 541 COURT OF CUSTOMS APPEALS. Ch. 69, 1450-1451 CHAPTER 69. COUBT OF CUSTOMS APPEAIA SEO. 1450. In General. 1451. General Appraisers Board of. 1452. Court of Customs Appeals Organization. 1453. Sessions. 1454. Jurisdiction. 1455. Time for Appeal from Board of General Appraisers. 1456. Calendar. 1450. In General. The court of customs appeals was estab- lished in 1909 to have appellate jurisdiction over matters decided by the board of general appraisers. This jurisdiction was exer- cised prior to 1909 by the circuit courts of the United States. An appeal lay to the circuit court of appeals and from there to the Supreme Court of the United States in cases provided. The court of customs appeals has superseded the jurisdiction of the circuit courts in these matters, and its judgment is final. r;.- ; '.. ,(.1^4 .b3 ,d 8ii. t 7SO . II MX .'K>bA-yrVL .v gB&fenioiT) 1451. General Appraisers Board of. There are nine gen- eral appraisers of merchandise, appointed by the President, by and with the consent of the Senate. They are employed at such ports as are designated by the Secretary of the Treasury. It is the duty of a general appraiser to revise and correct the reports of the assistant appraisers. He also must reappraise any mer- chandise when the collector deems the appraisement too low, or when the importer, owner, agent, or consignee of the merchandise is dissatisfied with the appraisement. The decision of the ap- praiser, unless objection is made to it, is final and conclusive as to the dutiable value of such merchandise against all parties interested therein. The board of general appraisers consists of three of the general appraisers, which are on duty at the port of New York. If the 1440, Ch. 68 MANUAL OP FEDERAL PROCEDURE. 540 justment of claims against the United States. The purpose of these reports is to furnish guides in like cases. The Attorney General shall report to Congress, at the beginning of each regular session, the suits under section 180, Jud. Code (Ap- pendix, post), in which a final judgment or decree has been ren- dered, giving date and statement of costs in each case. 183, Jud. Code (Appendix, post). The payment on claims referred from departments and decided by the Court of Claims in favor of the claimant shall be made out of any specific appropriation applicable to the case, and where no appropriation exists it shall be paid in same manner as any other decree of said court. 150, Jud. Code (Appendix, post). Reports of the Court of Claims to Congress under 148 and 151, Jud. Code (Appendix, post), if not acted upon during session at which they were reported, shall be continued from session to session and Congress to Congress until finally acted upon. 187, Jud. Code (Appendix, post). All judgments in favor of the government, on setoffs or counter- claims, shall be enforced the same as any other judgment of said court would be enforced. 146, Jud. Code (Appendix, post). 1440. Appeals. The United States or the claimant shall have the right to appeal as provided and restricted according to law. 181, Jud. Code (Appendix, post). In Indian cases the United States or the tribe of Indians, or other party in interest, shall have the right of appeal as prescribed and provided for by law. 182, Jud. Code (Appendix, post). 541 COURT OF CUSTOMS APPEALS. Ch. 69, 1450-1451 CHAPTER 69. COURT OF CUSTOMS APPEALa 8EO. 1450. In General. 1451. General Appraisers Board of. 1452. Court of Customs Appeals Organization 1453. Sessions. 1454. Jurisdiction. 1455. Time for Appeal from Board of General Appraisers. 1456. Calendar. 1450. In General. The court of customs appeals was estab- lished in 1909 to have appellate jurisdiction over matters decided by the board of general appraisers. This jurisdiction was exer- cised prior to 1909 by the circuit courts of the United States. An appeal lay to the circuit court of appeals and from there to the Supreme Court of the United States in cases provided. The court of customs appeals has superseded the jurisdiction of the circuit courts in these matters, and its judgment is final. 1451. General Appraisers Board of. There are nine gen- eral appraisers of merchandise, appointed by the President, by and with the consent of the Senate. They are employed at such ports as are designated by the Secretary of the Treasury. It is the duty of a general appraiser to revise and correct the reports of the assistant appraisers. He also must reappraise any mer- chandise when the collector deems the appraisement too low, or when the importer, owner, agent, or consignee of the merchandise is dissatisfied with the apprnisement. The decision of the ap- praiser, unless objection is made to it, is final and conclusive as to the dutiable value of such merchandise against all parties interested therein. The board of general appraisers consists of three of the general appraisers, which are on duty at the port of New York. If the 1452, Ch. 69 MANUAL OF FEDERAL PROCEDURE. 542 decision of the general appraiser as to the dutiable value of the merchandise is unsatisfactory to the importer, owner, consignee, or agent, or to the collector, and notice is given to the collector within two days after the decision of the general appraiser, the collector must transmit the invoice and all the papers appertaining thereto, to the board of general appraisers, at New York, or to a board of three general appraisers, at that port or any other port designated by the Secretary of the Treasury, who shall examine the case thus submitted, and decide it. The general appraisers are judicial officers of the Treasury De- partment, and their duty is confined to examining the case sub- mitted to them, and the single question involved is the dutiable value of the merchandise. The general board of nine general appraisers establishes the rules of each of the three general boards. 1 By the act of October 3, 1913, c. 16, last part, III, N., 38 Stats, at L. 187 (6 U. S. Comp. Stats. 1916, 5595, p. 6714), the determination of the board of general appraisers as to payment of duties shall be final " except in cases where an appeal shall be filed in the United States court of customs appeals within the time and manner provided by law." (Louisiana v. McAdoo, 234 U. S. 627, 58 L. Ed. 1506, 34 Sup. Ct. 938.) 1452. Court of Customs Appeals Organization. 194, Jud. Code (Appendix, post), provides for the organization'and general powers of the court of customs appeals. 188, Jud. Code (Appendix, post), provides that there shall be a United States court of customs appeals and that the same shall consist of a presiding judge and four associate judges; each ap- pointed by the President with the consent and advice of the Senate. Any three members shall constitute a quorum and a con- currence of three members shall be necessary for a decision. l Act of June 10, 1890, 26 Stats. 136, pars. 12, 14, 15, amended July 24, 1897, amended May 27, 1908, 35 Stats. 403, 21 Op. Atty-Gen. 85; United States v. Loeb, 107 Fed. 692, 46 C. C. A. 562; 23 Op. Atty-Gen. 377; In re Muser, 49 Fed. 831; United States v. Newhall, 91 Fed. 525, 34 C, C. A. 690; United States v. Beebe, 103 Fed. 785; 117 Fed. 670. 5-13 COURT OF CUSTOMS APPEALS. Ch. G9, 1453 -1 1:4 191, Jud. Code (Appendix, post), relates to the clerk of the court of customs appeals ; states his duties, compensation, residence, powers and the fees he may charge for his services. 192, Jud. Code (Appendix, post), sets out the fact that flie court may appoint an assistant clerk and stenographic clerks, and states what their compensation shall be. Also states that a steno- graphic reporter may be appointed and what his compensation may be. 190, Jud. Code (Appendix, post), provides that a marshal may be appointed and what his duties and powers are to be. Also states what he is allowed for compensation. 193, Jud. Code (Appendix, post), provides that the marshal of said court is to provide suitable rooms and furnishings for said court. Also provides for the appointment of bailiffs and messen- gers of court and their compensation. 1453. Sessions. 189, Jud. Code (Appendix, post), sets out the time when said court is to be in session, and what compensa- tion a judge is to receive when traveling and how the expenses of said judge are to be paid. 1454. Jurisdiction. 195, Jud. Code, as amended Act Aug. 22, 1914, c. 267 (Appendix, post), provides that the court of customs appeals has exclusive appellate jurisdiction to review by appeal the final decisions of the general board of appraisers in all cases as to the construing of the law and all issues of fact. It sets out the decisions reviewable in the court of customs appeals. 196, Jud. Code (Appendix, post), provides that all appeals on customs subject-matter are to be taken to the United States court of customs appeals. 197, Jud. Code (Appendix, post), provides for certification of cases pending in other courts to the court of customs appeals. 1455-1456, Cn. 69 MANUAL OP FEDERAL PROCEDURE. 544 1455. Time for Appeal from Board of General Appraisers. 198, Jud. Code (Appendix, post), provides for appeal from de- cisions of appraisers and states such appeal shall be made within sixty days after entry of decree or judgment. 1456. Calendar. 199, Jud. Code (Appendix, post}, pro- vides for a court calendar and the calling of the same every sixty days, but not during the months of July and August. 545 CIKCU1T COURT OP APPEALS. Ch. 70, 1470-1471 CHAPTER 70. CIECUIT COURT OF APPEALS. SEC. 1470. Judicial Circuits. 1471. Organization, Judges, Marshals, Clerks and Deputies. 1472. Terms. 1473. Rules of Procedure. 1474. Admission to Practice. 1475. Reports of Decisions. 1470. Judicial Circuits. There are nine judicial circuits of the United States provided for in chapter 6 of the Judicial Code (Appendix, post). 116, Jud. Code (Appendix, post), sets out the districts in- cluded in the various circuits. First : Rhode Island, Massachusetts, New Hampshire and Maine, to which by Act of Jan. 28, 1915, c. 22, Porto Rico was added. Second: Vermont, Connecticut, and New York. Third : Pennsylvania, New Jersey and Delaware. Fourth : Maryland, Virginia, West Virginia, North Carolina and South Carolina. Fifth: Georgia, Florida, Alabama, Mississippi, Louisi- ana, and Texas. Sixth: Ohio, Michigan, Kentucky and Tennessee. Seventh : 'Indiana, Illinois, and Wisconsin. Eighth : Nebraska, Minnesota, Iowa, Missouri, Kansas, Arkansas, Colorado, Wyo- ming, North Dakota, South Dakota, Utah. Oklahoma, and New Mexico. Ninth: California, Oregon, Washington, Nevada, Idaho, Montana, Arizona, and Hawaii. 1471. Organization, Judges, Marshals, Clerks and Deputies. 117, Jud. Code (Appendix, post), provides that in each circuit there be a circuit court of appeals, consisting of three judges, any two forming a quorum. It is a court of record with appellate jurisdiction as limited and established in said chapter 6, Jud. Code. 118, Jud. Code (Appendix, post), sets out how the circuit judges are appointed, the number of circuit judges in the various Manual 35 1472, Ch. 70 MANUAL OF FEDERAL PROCEDURE. 54:6 circuits, the compensation received by them, their places of resi- dence, and certain of their duties. 121, Jud. Code (Appendix, post), states how and the manner in which the terms "circuit justices" and "justices of a circuit" are to be used in this title. 119, Jud. Code (Appendix, post), sets out in what manner and how the allotments of various circuit court judges are made and the reasons for said allotment. 120, Jud. Code (Appendix, post), states the duties of chief justice of the Supreme Court and his associate justice, when in attendance of any session of the circuit court of appeals. It also provides for district judges sitting on the circuit court of appeals, and that a judge who sat in the court below is disqualified above. A judge who sat at the hearing below of a whole cause at any stage thereof is undoubtedly disqualified to sit in the circuit court of appeals at the hearing of the whole cause at the same or at any later stage. (Moran v. Dillingham, 174 U. S. 153, 43 L. Ed. 930, 19 Sup. Ct. 620.) A decree in which a disqualified judge took part will be quashed and set aside without regard to the merits. (Ibid. ; American Constr. Co. v. Jacksonville etc. R. Co., 148 U. S. 372, 37 L. Ed. 486, 13 Sup. Ct. 758.) 124, Jud. Code (Appendix, post), concerns the appointment of a clerk, and sets out his duties pertaining to matters within the court's jurisdiction. 125; Jud. Code (Appendix, post), sets out the right of the clerk to appoint deputies subject to approval by the court; the rights and duties of said deputies in case of death of clerk and their lia- bilities ; the liabilities of administrator and' executor upon defaults and misfeasances caused after death of clerk. 123, Jud. Code (Appendix, post), sets out the rights and duties of United States marshals in reference to these courts. 1472. Terms. 126, Jud. Code (Appendix, post), provides for terms to be held annually by the circuit court of appeals in the several judicial circuits at the following places and at such 547 CIRCUIT COURT OP APPEALS. Ch. 70, 1473-1474 times as fixed by the court: First circuit, Boston; second circuit, New York; third circuit, Philadelphia; fourth circuit, Richmond: fifth circuit, New Orleans, Atlanta, Fort Worth and Montgomery ; sixth circuit, Cincinnati; seventh circuit, Chicago; eighth circuit, St. Louis, Denver, or Cheyenne, and St. Paul; ninth circuit San Francisco, and each year in two other places in said circuit to be designated by judges of said Court ; and in each of the above cir- cuits, terms may be held at such other times and places as may be designated by each respective court. This section goes on to state that there are certain dates on which said terms shall be held in various circuits, and what matters are to be taken up at this time. 1473. Rules of Procedure. 122, Jud. Code (Appendix, post), concerns the procedure of the various circuit courts of ap- peals and contains all information regarding seals, writs, and process as conformable to each court's jurisdiction. Under the authority of this statute, rules have been promulgated for each of the nine circuits. These rules are so similar in many respects that they are printed in our Appendix as one set of rules with notations of differences where any exist in any of the several circuits from the general rule existing in the other circuits. In taking an appeal in any circuit these rules should be con- sulted. 1474. Admission to Practice. Under Rule 7 Circuit Court of Appeals in all circuits, an attorney may be admitted to practice in the circuit court of appeals when admitted to practice in the Supreme or District Court of the United States on taking the oath or affirmation in the form prescribed in rule 2 of the Su- preme Court of the United States. In the sixth, eighth and ninth circuits it is enough if the attorney has been admitted to the court of last resort in the state of his residence and takes the requisite oaths. Fees are prescribed in last-named circuits. 1475, Ch. 70 MANUAL OF FEDERAL PROCEDURE. 548 1475. Reports of Decisions. All decisions from the time when the circuit courts of appeals were established, in 1891, have been reported currently in the Federal Reporter, and are now re- ported also in the C. C. A. Reports, of which there are now more than one hundred volumes. 549 APPELLATE JURISDICTION OF C. C. A. Ch. 71, 1500 CHAPTER 71. APPELLATE JURISDICTION OF CIRCUIT COURT OF APPEALS. SEC. 1500. Appellate Jurisdiction. 1501. Appeal and Error from District Courts to Circuit Court of Appeals. 1502. Appeals from Interlocutory Orders in Injunction and Receivership Proceedings in District Courts. 1503. Appellate and Supervisory Jurisdiction in Bankruptcy Cases. 1504. Appeal and Error from the United States Court for China. 1505. Appeals and Writs of Error from District Court for Alaska. 1506. Place of Hearing of Appeals and Writs of Error from Alaska. 1507. Appellate Jurisdiction from District Court Canal Zone. 1508. Appellate Jurisdiction The Danish West Indian Islands. 1509. Appellate Jurisdiction Porto Rico. 1510. Powers and Duties of Judges upon Appeal. 1500. Appellate Jurisdiction. The jurisdiction of the circuit courts of appeals is wholly appellate, and is governed by chapter 6, Jud. Code, 128 et seq., which sections are largely re-enactments of the act of Mar. 3, 1891, c. 517. The jurisdiction includes not only appeals and writs of error from certain final decisions in district courts, under 128, Jud. Code ( 1501, post), including Hawaii and Porto Rico, and under 134, Jud. Code ( 1505, post), Alaska, but also appeals from in- terlocutory orders granting, refusing, dissolving, or refusing to dissolve an injunction, or appointing a receiver, under 129, Jud. Code ( 1502, post), and in bankruptcy cases under 130, Jud. Code (1503, post), and appeals and writs of error from the United States court for China, under 131, Jud. Code ( 1504, post), and in the fifth circuit from final judgments and decrees of the district courts in the Canal Zone, under part 9, Act Aug. 24, 1912, c. 390 ( 1507, post). As to Danish West India and Porto Rico, see 1508, 1509, below. 1501, Ch. 71 MANUAL, OP FEDERAL PROCEDURE. 550 1501. Appeal and Error from District Courts to Circuit Court of Appeals. 128, Jud. Code (as amended Act Jan. 28, 1915, c. 22, 2, Re-enacting part of 6, Act of March 3, 1891, 26 Stats. 828} . "The circuit court of appeals shall exercise appellate juris- diction to review by appeal or writ of error final decisions 1 in the district courts, including the United States district court for Hawaii and the United States district court for Porto Kieo, 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 other- wise provided by law; and, except as provided in sections two hundred and thirty-nine and two hundred and forty, the judg- ments and decrees of the circuit court of appeals shall be final 2 in all cases in which the jurisdiction is dependent entirely upon the opposite parties to the suit or controversy being aliens and citizens of the United States or citizens of different states; also in all cases arising under the patent laws, under the trademark laws, under the copyright laws, under the revenue laws, and under the criminal laws, and in all ad- miralty cases." (5 Fed. Stats. Ann., 2d ed., p. 607; 2 U. S. Comp. State.. 1916, 1120; Foster's Federal Practice, 5th ed., pp. 1979, 2374, 2410, 2436; Simkins' Federal Equity Suit, 3d ed., p. 622.) Final judgments and decrees appealable from district courts to the circuit court of appeal are determined by a process of elimi- nation, and include "all final decisions in district courts, in all cases other than those in which appeals and writs of error may be taken direct to the Supreme Court, as provided in 238, Jud. Code, unless otherwise provided by law." 1 "Final decision" means a final decision which was then appealable" under the existing law. North American Trading Co. v. Smith, 93 Fed. 7, 35 C. C. A. 183. Appel- late jurisdiction, Four Hundred and Forty-three Cans of Frozen Egg Product v. United States. 226 U. S. 172, 57 K Ed. 174, 33 Sup. Ct. 50, re- versing United States v. Four Hundred and Forty-three Cans of Frozen Egg Product, 193 Fed. 589, 113 C. C. A. 457. 2 Final decisions of C. C. A., see Missouri, Kansas & Texas Ey. Co. v. Wulf, 226 U. S. 570, 57 L. Ed. 355, 33 Sup. Ct. 135. Final decisions of districts courts, In re Metropolitan Trust Co., 218 U. S. 312, 54 L. Ed. 1061, 31 Sup. Ct. 18. 551 APPELLATE JURISDICTION OP C. C. A. Ch. 71, 1502-1503 1502. Appeals from Interlocutory Orders in Injunction and Receivership Proceedings in District Courts. 129, Jud. Code (Re-enacting 7, Act of March 3, 1891, 31 Stats. 660). "Where upon a hearing in equity in a district court, or by a judge thereof in vacation, an injunction shall be granted, continued, refused, or dissolved by an inter- locutory order or decree, or an application to dissolve an in- junction shall be refused, or an interlocutory order or decree shall be made appointing a receiver, an appeal may be taken from such interlocutory order or decree granting, continuing, refusing, dissolving, or refusing to dissolve an injunction, or appointing a receiver to the circuit court of appeals, notwith- standing an appeal in such case might, upon final decree under the statutes regulating the same, be taken directly to the Su- preme Court: Provided, That the appeal must be taken with- in thirty days from the entry of such order or decree, and it shall take precedence in the appellate court ; and the proceed- ings in other respects in the court below shall not be stayed unless otherwise ordered by that court, or the appellate court, or a judge thereof, during the pendency of such appeal : Pro- vided, however, That the court below may, in its discretion, require as a condition of the appeal an additional bond." (36 Stats. 1134; 5 Fed. Stats. Ann., 2d ed., p. 629; 2 U. S. Comp. Stats. 1916, 1121, p. 1444; Foster's Federal Practice, 5th ed., pp. 930, 1943, 2411, 2436 ; Simkins' Federal Equity Suit, 3d ed., pp. 626, 627, 628, 629.) The purpose of this section is to save the parties from the ex- pense of further litigation should the appellate court be of the opinion that plaintiff was not entitled to an injunction because his bill had no equity to support it. '(Smith v. Vulcan Iron Works, 165 U. S. 518, 41 L. Ed. 810, 17 Sup. Ct. 407 ; Jackson Co. v. Gardiner Inv. Co., 200 Fed. 113, 118 C. C. A. 287; Pioneer Lace Mfg. Co. v. Dodd, 181 Fed. 688, 104 C. C. A. 586 ; Pressed Steel Car Co. v. Chicago & A. B. Co., 192 Fed. 517, 113 C. C. A. 73.) 1503. Appellate and Supervisory Jurisdiction in Bankruptcy Cases. 130, Jud. Code. "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 1504-1505, Ch. 71 MANUAL OP FEDERAL PROCEDURE. 552 System of Bankruptcy throughout the United States,' ap- proved July 1, 1898, and all laws amendatory thereof, and shall exercise the same in the manner therein prescribed." (36 Stats. 1134; 5 Fed. Stats. Ann., 2d ed., p. 643; 2 U. S. Comp. Stats. 1916, 1122.) This section is only declaratory of the appellate jurisdiction con- ferred upon the circuit court of appeals by 24 and 25 of the bankruptcy act of 1898, and for a full treatment of this jurisdic- tion we refer to that act and to the various works on bankruptcy. 1504. Appeal and Error from the United States Court for China. 131, Jud. Code. "The circuit court of appeals for the ninth circuit is empowered to hear and determine writs of error and appeals from the United States court for China as provided in the act entitled, ' An Act Creating a United States Court for China and Prescribing the Jurisdiction Thereof,' approved June 30, 1906." (36 Stats. 1134; 5 Fed. Stats. Ann., 2d ed., p. 643; 2 U. S. Comp. Stats. 1916, 1123; Fos- ter's Federal Practice, 5th ed., pp. 280, 2411, 2539.) This section, like the preceding one, is merely declaratory of the appellate jurisdiction conferred by 3 of the act referred to. 1505. Appeals and Writs of Error from District Court for Alaska. 1 34, Jud. Code. ' ' 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 247, 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 when- ever 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 Su- 553 APPELLATE JURISDICTION OF C. C. A. Ch. 71, 1506-1507 preme Court, and thereupon the Supreme Court shall give its instruction upon the question or proposition certified to it, and its instruction shall be binding upon the circuit court of appeals." (36 Stats. 1134; 5 Fed. Stats. Ann., 2d ed., p. 644; 2 U. S. Comp. Stats. 1916, 1125; Foster's Federal Practice, 5th ed., pp. 2411, 2437, 2539.) 1506. Place of Hearing of Appeals and Writs of Error from Alaska. 135, Jud. Code. "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 before the hear- ing of any appeal, writ of error, or other cases, 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." (36 Stats. 1135; 5 Fed. Stats. Ann., 2d ed., p. 646; 2 U. S. Comp. Stats. 1916, 1126.) 1507. Appellate Jurisdiction from District Court Canal Zone. Part 9, Act Aug. 24, 1912, c. 390 (Re-enacting Act of Jan. 11, 1909, c. 15, 35 Stats, at L. 585). "The circuit court of appeals of the fifth circuit of the United States shall have jurisdiction to review, revise, modify, reverse, or affirm the final judgments and decrees of the district court of the Canal Zone and to render such judgments as in the opinion of the said appellate court should have been rendered by the trial court in all actions and proceedings in which the Constitution, or any statute, treaty, title, right, or privilege of the United States, is involved and a right thereunder denied, and in cases in which the value in controversy exceeds one thousand dol- lars, to be ascertained by "the oath of either party, or by other competent evidence, and also in criminal causes wherein the offense charged is punishable as a felony. And such appellate 1508-1509, Ch. 71 MANUAL OF FEDERAL PROCEDURE. 554 jurisdiction, subject to the right of review by or appeal to the Supreme Court of the United States as in other cases au- thorized by law, may be exercised by said circuit court of appeals in the same manner, under the same regulations, and by the same procedure as nearly as practicable as is done in reviewing the final judgments and decrees of the district courts of the United States." (37 Stats. 566; Fed. Stats. Ann., 2d ed., title "Rivers, Harbors and Canals"; 10 U. S. Comp. Stats. 1916, 10,045.) 1508. Appellate Jurisdiction The Danish West Indian Islands. Act Mch. 3, 1917, c. 171, pt. 2 (Courts, etc.}. ". . . The jurisdiction of the judicial tribunals of said islands shall extend to all judicial proceedings and controversies in said islands to which the United States or any citizen thereof may be a party. In all cases arising in the said West Indian Is- lands and now reviewable by the courts of Denmark, writs of error and appeals shall be to the Circuit Court of Appeals for the Third Circuit, and, except as provided in sections two hundred and thirty-nine and two hundred and forty of the Judicial Code, the judgments, orders, and decrees of such court shall be final in all such cases." (U. S. Comp. Stats. 1916, 3924b ; 239 Fed. Adv. Sheets No. 2, Supp., p. 129.) 1509. Appellate Jurisdiction Porto Rico. Act March 2, 1917, c. 145, 42. "(Appeals and removal of causes from and writs of error and certiorari to courts of Porto Rico; terms of court of district court; pleadings and proceedings to be in English language ; district court attached to first circuit; appeals to and review by circuit court of appeals and Supreme Court of United States.) "The laws of the United States relating to appeals, writs of error and certiorari, removal of causes, and other matters or proceedings as between the courts of the United States and the courts of the several States shall govern in such matters and proceedings as between the district court of the United States and the courts of Porto Rico. Regular terms of said United States district court shall be held at San Juan, com- mencing on the first Monday in May and November of each 555 APPELLATE JURISDICTION OF C. C. A. Ch. 71, 1510 year, and also at Ponce on the second Monday in February of each year, and special terms may be held at Mayaquez at such stated times as said judge may deem expedient. All pleadings and proceedings in said court shall be conducted in the English language. The said district court shall be at- tached to and included in the first circuit of the United States, with the right of appeal and review by said circuit court of appeals in all cases where the same would lie from any dis- trict court to a circuit court of appeals of the United States, and with the right of appeal and review directly by the Su- preme Court of the United States in all cases where a direct appeal would be from such district courts." (Fed. Stats. Ann., 2d ed., 1918 Supp., title "Porto Rico"; Pamph. Supp. Nos. 9, 10, January- April, 1917, p. 94; U. S. Comp. Stats. 1917, Supp. 3803r, Adv. Sheets, 239 Fed. No. 1, p. 80.) Appellate Jurisdiction from Supreme Court, Porto Rico. Act March 2, 1917, c. 145, 43. "Writs of error and appeals from the final judgments and decrees of the Supreme Court of Porto Rico may be taken and prosecuted to the Circuit Court of Appeals for the First Circuit and to the Supreme Court of the United States, as now provided by law." (Fed. Stats. Ann., 2d ed., 1918 Supp., title "Porto Rico"; Pamph. Supp. Nos. 9, 10, January-April 1917, p. 94 ; U. S. Comp. Stats. 1917, Supp. 3803rr, Adv. Sheets, 239 Fed. No. 1, p. 80.) 1510. Powers and Duties of Judges upon Appeal. 132, Jud. Code (Re-enacting 11 of C. C. A. Act of March 3, 1891, c. 517, 26 Stats, at L. 829). "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 condition of such allowances, as by law belong to the justices or judges in respect of other courts of the United States respectively." (36 Stats. 1134; 5 Fed. Stats. Ann., 2d ed., p. 643; 2 U. S. Comp. State. 1916, 1124; Simkins' Federal Equity Suit, 3d ed., p. 676.) 1530, Ch. 72 MANUAL OF FEDERAL, PROCEDURE. 556 CHAPTER 72. THE SUPREME COUET. sea 1530. Judges, Clerks, Deputies and Marshal. 1531. Supreme Court Reporter. 1532. Admission to Practice. 1533. Terms and Adjournments. 1534. Powers and Jurisdiction. 1530. Judges, Clerks, Deputies and Marshal. 215, Jud. Code (Appendix, post), provides for a chief justice and eight associate justices, any six constituting a quorum. 216, Jud. Code (Appendix, post) , gives precedence to judges in order of commission, except when same date, when age gives precedence. 217, Jud. Code (Appendix, post), confers on associate justice, who is first in precedence, the po'wers of chief justice when there is a vacancy or when the chief justice is incapable of performing the duties and powers of his office. 218, Jud. Code (Appendix, post), provides that the chief jus- tice of the Supreme Court of the United States shall receive $15,000 per annum, and the associate justices $14,500 each per annum, pay- able monthly. 219, Jud. Code (Appendix, post), gives the Supreme Court power to appoint a clerk and a marshal, and a reporter of its decisions. 220, Jud. Code (Appendix, post), relates to the rights, powers and duties of the clerk of the Supreme Court of the U. S. Also provides as to his bond. 221, Jud. Code (Appendix, post), sets out the fact that depu- ties may be appointed by the court on application of the clerk; provides as to the misfeasances and defaults of said deputies and their relation to the clerk's estate in case of his death. 557 THE SUPREME COURT. Ch. 72, 1531-1533 224, Jud. Code (Appendix, post). The marshal is entitled to a salary of $4,500 per annum; sets out his duties, rights and powers; states he may appoint assistants, with the approval of the court. 1531. Supreme Court Reporter. The duties of the reporter are defined in 225, Jud. Code, his salary and allowances are desig- nated in 226, Jud. Code, and the distribution of reports and digests is set out in 227, Jud. Code. The cost of these books and provision for additional reports and digests is made in 228, Jud. Code. Provision is made for distribution of sets of the Federal Reporter and Digests in 229, Jud. Code. These sections may be found with annotations in the Appendix. 1532. Admission to Practice. Ride 2 of the Supreme Court of the United States. "1. It shall be requisite to the admission of attorneys or counselors to practise in this court, that they shall have been such for three years past in the supreme courts of the states to which they respectively belong, and that their private and profes- sional character 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 de- mean myself, as an attorney and counselor of this court, up- rightly, and according to law ; and that I will support the Con- stitution of the United States. ' ' 255, Jud. Code (Appendix, post), provides that any woman a member of the bar for three years, of good standing, good moral character, and who can produce such record> shall be admitted to practice before the Supreme Court of the United States. 1533. Terms and Adjournments. 230, Jud. Code (Ap- pendix, post). The Supreme Court holds at the seat of govern- ment, one term annually, commencing on the second Monday in 1534, Ch. 72 MANUAL OF FEDERAL PROCEDURE. 558 October, and such adjourned or special terms as it may find necessary in its dispatch of business. 231, Jud. Code (Appendix, post). 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. 1534. Powers and Jurisdiction. 233, Jud. Code (Appendix post), relates to the jurisdiction of the Supreme Court of the United States, as to interstate and foreign matters. 235, Jud. Code (Appendix, post). "The trial of issues of fact in the Supreme Court in all actions of law against citizens of the United States, shall be by Jury." 234, Jud. Code (Appendix, post), sets out the power of the court to issue writs of prohibition to the district court in certain cases and the power to issue writs of mandamus to any courts or persons holding authority under the United States, when such pro- ceedings will be warranted. JURISDICTION OP SUPKEME COURT. Ch. 73, 1556 CHAPTER 73. APPELLATE JURISDICTION OF SUPREME COURT. SEC. 1550. In General. 1551. Appeals from District Courts Direct to the Supreme Court. 1552. What Constitutes a Question of Jurisdiction. 1553. Rules for Determining the Respective Jurisdiction of the Circuit Courts of Appeal, and the Supreme Court W/here the Jurisdiction of the Court is in Issue. . 1554. Appeals from Final Sentences and Decrees in Prize Causes. 1555. Cases Involving the Construction or Application of the United States Constitution. 1556. Constitutionality of United States Law, or Validity or Construction of Treaty Drawn in Question. 1557. State Law or Constitution Claimed to Contravene the Constitution of the United States. 1558. Clauses 3, 4, and 5 of 238, Judicial Code. 1559. Appeal and Error Circuit Court of Appeals to Supreme Court. 1560. Appellate Jurisdiction of the Supreme Court in Cases from Court of Claims. 1561. Appeal and Error to Supreme Court from Hawaii, Porto Rico, Alaska, Philippine Islands, District of Columbia and Bankruptcy Courts. 1562. Prohibition, Mandamus and Other Writs to Revise and Correct Pro- ceedings in Lower Courts, and Preserve Jurisdiction. 1550. In General. The appellate jurisdiction of the Su- preme Court is now prescribed by chapter 10, Jud. Code, 236 et seq. It is to be noted that the "appellate jurisdiction conferred by this chapter includes jurisdiction of writs of error as well as appeals, and the most of the sections herein quoted apply alike to appellate procedure in law as well as in equity. The appellate jurisdiction of the Supreme Court, as herein treated, is divided into two general classes: 1. Appellate jurisdiction over decisions of district courts. 2. Appellate jurisdiction over decisions of circuit court of appeals. 1551, Ch. 73 MANUAL OP FEDERAL PROCEDURE. 560 The appellate jurisdiction of the Supreme Court over state courts is treated in chapter 74, under the head of "Writ of Error to State Court of Last Resort. " The Supreme Court has also appel- late jurisdiction over the decrees of the Court of Claims, the courts of Porto Rico, Hawaii, Alaska, the Philippine Islands, District of Columbia, and bankruptcy courts. 1551. Appeals from District Courts Direct to the Supreme Court. 555, Jud. Code, as amended Act Jan. 28, 1915, c. 22 (Drawn from Act March 3, 1891, 5, c. 517, 26 Stats, at L. 827}. "Appeals and writs of error may be taken from the district courts including the United States district court for Hawaii and the United States district court for Porto Rico, direct to the Supreme Court in the following cases: " (1) 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; (2) from the final sentences and decrees in prize causes; (3) in any case that involves the construction or the application of the Constitution of the United States; (4) 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; (5) 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." (36 Stats. 1157; 38 Stats. 803; 5 Fed. Stats. Ann., 2d ed., p. 794; 2 U. S. Comp. Stats. 1916, 1215; Foster's Federal Practice, 5th ed., pp. 1980, 2361, 2369, 2390, 2436, 2456, 2539.) A direct appeal is allowed to the Supreme Court from orders affecting the Interstate Commerce Commission. Part Act October 22, 1913, c. 32. "... 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 in- terlocutory 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 561 JURISDICTION OP SUPREME COURT. Ch. 73, 1552 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 judgment or decree of the district 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 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 de- fendants in the case and upon the attorney general of the State." (38 Stats. 220; 5 Fed. Stats. Ann., 2d ed., p. 1113; 1 U. S. Comp. Stats. 1916, pt. 998, p. 836, and 1000, p. 837.) In order to maintain jurisdiction in the Supreme Court in the class of cases covered by clause No. 1, of the above-quoted section of the Judicial Code, the record must distinctly show, without equivocation, that the court below sends up for consideration the single and definite question of jurisdiction. 1 No other question except that of jurisdiction can be certified to the Supreme Court under this provision, but it has been held 2 that if fhe case is taken to the Supreme Court on the single ground of jurisdiction and is thus before that court, then the Supreme Court will pass upon questions of fact where the decision below was erroneous, and may then set aside the judgment of the court below. 1552. What Constitutes a Question of Jurisdiction. The question of jurisdiction may be certified to the Supreme Court upon the following grounds: (1) Where it appears that process has not been served. 8 1 Arkansas T. Schlierholz, 179 TJ. S. 600, 45 L. Ed. 336, 21 Sup. Ct. 229; Shields v. Coleman, 157 U. S. 168, 39 L. Ed. 660, 15 Sup. Ct. 570; Chappoll v. United States, 160 U. S. 499, 40 L. Ed. 510, 16 Sup. Ct. 397; Mexican C. R. Co. v. Echman, 187 U. S. 429, 47 L. Ed. 245, 23 Sup. Ct. 211; Cosmo- politan Mining Company T. Walsh, 193 U. S. 460, 48 L. Ed. 749, 24 Sup. Ct. 489; Anglo-American Provision Company v. Davis Provision Co., 191 U. S. 376, 48 L. Ed. 228, 24 Sup. Ct. 93. 2 Commercial Mutual Accident Co. v. Davis, 231 U. S. 256, 53 L. Ed. 787, 29 Sup. Ct. 445. 3 Board of Trade v. Hammond Elevator Co., 198 U. S. 424, 49 L. Ed. 1111, 25 Sup. Ct. 740; Remington v. Central Pac. R. Co., 198 U. S. 95, 49 L. Ed. 959, 25 Sup. Ct. 577; Kendall v. American Automatic Loom Co.. 19S Manual 36 1553, Ch. 73 MAKtTAL OF FEDERAL fEOCEDtTRE. 5C2 (2) Where a party sues as assignee in a case in which his as- signor could not have maintained the action. 4 (3) In cases of improper removal from a state court. 5 (4) Whenever the jurisdiction of the court below has been directly attacked (under former equity rules, by plea or demurrer, now by motion to dismiss or by answer.) 9 But the objection that a court of equity has no jurisdiction because of the presence of an adequate remedy at law does not constitute sufficient grounds for certification of the question of jurisdiction to the Supreme Court. 7 1553. Rules for Determining 1 the Respective Jurisdiction of the Circuit Courts of Appeal, and the Supreme Court Where the Jurisdiction of the Court is in Issue. Inasmuch as only "the question of jurisdiction alone" may be certified directly to the Supreme Court, under clause (1) of 238, Jud. Code ( 1551, supra), we must consider the effect of a mixture of questions of jurisdiction, and of issues on the merits of the case. The Supreme Court, in the case of U. S. v. John, 155 Ui-S. 109, 39 L. Ed. 87, 15 Sup. Ct. 39, has laid down six rules, governing the various situations which arise in connection with this situation, as follows: "(1) If the jurisdiction of the circuit court is in issue, and decided in favor of the defendant, as that disposes of the case, U. S. 477, 49 I*. Ed. 1133, 25 Sup. Ct. 768; Davis v. Cleveland C. C. & St. L. R. R. Co., 217 U. S. 157, 54 L. Ed. 708, 27 L. B. A. (N. S.) 823, 30 Sup. Ct. 463, 156 Fed. 775, 84 C. C. A. 453; St. Louis Cotton Compress Co. v. American Cotton Co., 60 C. C. A. 80, 125 Fed. 196. 4 Barling v. Bank of British N. A., 50 Fed. 261, 1 C. C. A. 510, 7 U. S. App. 194. 5 Powers v. Chesapeake & Ohio R. R. Co., 169 U. S. 92, 42 K Ed. 673, 18 Sup. Ct. 264; Kansas City N. W. R. R. Co. v. Zimmerman, 210 U. S. 336, 52 L. Ed. 1084, 28 Sup. Ct. 730. 6 Davis & Rankin Bldg. & Mfg. Co. v. Barber, 60 Fed. 465, 9 C. C. A. 79, 18 U. S. App. 476; Hennessy v. Richardson Drug Co., 189 U. S. 25, 47 L. Ed. 697, 23 Sup. Ct. 532; The Alliance, 70 Fed. 274, 17 C. C. A. 124, 44 U. S. App. 52; Equity Rule 29. 7 Kansas City N. W. R. R. Co. v. Zimmerman, 210 U. S. 338, 52 L. Ed. 1084, 28 Sup. Ct. 730; Louisville Trust Co. v. Knott, 191 U. S. 225, 48 L. Ed. 159, 24 Sup. Ct. 119; Blythe v. Hinkley, 173 U. S. 501, 43 L. Ed. 783, 19 Sup. Ct. 497; United States ex rel. Mudsill- Mining Co. v. Swan, 65 Fed. 647, 13 C. C. A. 77, 31 U. S. App. 112. JURISDICTION OP SUPREME COUET. Ch. 73, 1553 the plaintiff should have the question certified, and take his appeal or writ of error directly to this court. (2) If the question of jurisdiction is in issue, and the jurisdiction sustained, and then judgment or decree is rendered in favor of the defendant on the merits, the plaintiff, wro has maintained the jurisdiction, must appeal to the circuit court of appeals, where, if the question of jurisdiction arises, the circuit court of appeals may certify it. (3) If the question of jurisdiction is in issue, and the jurisdiction sustained, and the judgment on the merits is rendered in favor of the plaintiff, then the defendant can elect either to have the question certified, and come directly to this court, or to carry the whole case to the circuit court of appeals, and the question of jurisdiction can be certified by that court. (4) If in the case last supposed the plaintiff has ground of complaint in respect of the judgment he has recovered, he may also carry the case to the cir- cuit court of appeals on the merits, and this he may do by way of cross appeal or writ of error if the defendant has taken the case there, or independently if the defendant has carried the case to this court on the question of jurisdiction alone, and in this in- stance the circuit court of appeals will suspend a decision upon the merits until the question of jurisdiction has been determined. (5) The same observations are applicable where a plaintiff objects to the jurisdiction, and is, or both parties are, dissatisfied witli the judgment on the merits. (6) In every case in which the com- plaining party has the right or has and exercises the option to carry his case to the circuit court of appeals for review, that court may decide the question of jurisdiction as well as the ques- tion on the merits, for the power of that court to certify the ques- tion of jurisdiction to the Supreme Court assumes the power to decide it." 8 See also New Orleans v. Benjamin, 153 U. S. 411, 38 L. Ed. 764, 14 Sup. Ct. 905; Evans-Snider-Buel Co. v. McCaskill, 101 Fed. 658, 41 C. C. A. 577; McLish v. Roff, 141 U. S. 661, 35 L. Ed. 895, 12 Sup. Ct. 113; Harris v. Kosenberger, 145 Fed. 449, 13 L. E. A. (N. S.) 762, 76 C. C. A. 22o; Gates v. Bucki, 53 Fed. 965, 4 C. C. A. 116, 12 U. S. App. 69; Carter v. Roberta, 177 U. S. 500, 44 L. Ed. 863, 20 Sup. Ct. 713; Reliable Incubator & Brooder Co. v. Stahl, 105 Fed. 667, 44 C. C. A. 657; Northern P. R. Co. v. Glaspell, 1554r-1555, Ch. 73 MANUAL OP FEDERAL PROCEDURE. 564 It is evident, then, that if the jurisdiction of the district court is put in issue with other issues on the merits, then an election is given to the party desiring to appeal.. He may have the ques- tion of jurisdiction alone certified directly to the Supreme Court, or he may appeal the entire case on the m9rits, to the circuit court of appeals, whereupon that court may either determine the juris- dictional question itself, or may certify it to the Supreme Court for determination. 9 Whether the same party may prosecute two appeals from the same determination of his suit, having the question of jurisdiction certified directly to the Supreme Court, while he appeals from the decision and the merits to the circuit court of appeals, is doubtful. The circuit court of appeals has held 10 that this is permissible, but the Supreme Court has reached the opposite conclusion. 11 1554. Appeals from Final Sentences and Decrees in Prize Causes. The second clause of 238, Jud. Code (1551, supra) ; confers upon the Supreme Court the jurisdiction of appeals from all final decrees in prize causes. The amount in controversy is immaterial, and no certificate of the district judge as to the im- portance of the particular case is required. 12 - : % . < 1555. Cases Involving the Construction or Application of the United States Constitution, Under the third clause of 238, Jud. Code ( 1551, supra], the district court must have actually construed or applied the Constitution to the case, or must have declined to do so upon being requested so to do. 13 The mere fact 49 Fed. 482, 1 C. C. A. 327, 4 U. 8. App. 238'; Robinson v. Caldwell, 165 U. S. 361, 41 I*. Ed. 746, 17 Sup. Ct. 343. Ibid. 10 Pullman Palace Car Co. v. Central Transportation Co., 76 Fed. 402, 22 C. C. A. 246, 39 U. S. App. 307. 11 American Sugar Refining Co. v. New Orleans, 181 U. S. 277, 45 L. Ed. 859, 21 Sup. Ct. 646. See also Robinson v. Caldwell, 165 U. S. 359, 41 L. Ed, 745, 17 Sup. Ct. 343; Columbus Const. Co. v. Crane Company, 174 U S. 601, 43 L. Ed. 1103, 19 Sup. Ct. 721; Union & Planters' Bank v. Memphis, 189 U. S. 74, 47 L. Ed. 714, 23 Sup. Ct. 604. 12 Paquete v. Habana, 175 U. S. 677, 44 L. Ed. 320, 20 Sup. Ct. 290. 13 Cornell v. Green, 163 U. S. 75, 41 L. Ed. 76. 16 Sup. Ct. 969. 565 JURISDICTION OF SUPREME COURT. Ch. 73, 1556-1557 that the Constitution might have been involved, or might have been challenged, if it was not actually so involved or challenged, does not vest the Supreme Court with jurisdiction. 14 The clause has been held to include a case involving the, con- stitutional power of Congress over the navigable waters of the United States ; 15 a case involving the right of citizens of a state to vote for congressmen of the United States; 16 a case in which the question whether the complainants are engaged in Interstate Commerce under paragraph 3 of 8 of article I of the Constitu- tion is involved. 17 1556. Constitutionality of United States Law, or Validity or Construction of Treaty Drawn in Question. As in cases in- cluded under the preceding clause, the questions must be actually involved, and the court must have been required to pass upon them in reaching this decision. 18 Allegations that the questions were involved, if not supported by the facts of the case, do not vest the Supreme Court with jurisdiction. 19 Questions of fact, although the facts be the outgrowth of the operation of a treaty or statute, do not confer jurisdiction upon the Supreme Court, as the validity or construction of a statute or treaty, or the consti- tutionality of a United States law, involves only questions of law. 20 1557. State Law or Constitution Claimed to Contravene the Constitution of the United States. The general requirement and propositions of law applicable to this clause are similar to those applicable to the two preceding clauses, and will be discussed jointly with them in the succeeding sections. 14 World's Columbian Exposition v. United States, 56 Fed. 654, 6 C. C. A. 58; Northern Pacific B. R. Co. v. Amato, 144 U. S. 465, 472, 36 L. Ed. 596, 12 Sup. Ct. 740; Snow v. United States, 118 U. S. 346, 30 L. Ed. 207, G Sup. Ct. 1059. 15 Cummings v. Chicago, 188 U. S. 410, 47 L. Ed. 525, 23 Sup. Ct. 472. is Wiley v. Sinkler, 179 U. S. 62, 45 L. Ed. 84, 21 Sup. Ct. 17. ii Macon v. Georgia Packing Co., 60 Fed. 781, 9 C. C. A. 262. 18 Muse v. Arlington Hotel Company, 168 U. S. 430, 42 L. Ed. 531, 18 Sup. Ct. 109. i9Budzisz v. Illinois Steel Co., 170 U. S. 41, 42 L. Ed. 941, 18 Sup. Ct. 503 20 In re Newman, 79 Fed. 615; Borgmeyer v. Idler. 159 U. S. 408, 40 L. Ed. 199, 16 Sup. Ct. 34. 1558, Cll. 73 MANUAL OF FEDERAL PROCEDURE. 566 "A state law" includes municipal ordinances as the acts of a state perpetrated through its properly constituted instrumentality, and if the constitutionality of such ordinances is involved the case comes within the purview of this clause. 21 However, a state law which is void under the state Constitution, as well as being in contravention of the Constitution of the United States, cannot raise the question so as to give the Supreme Court jurisdiction. 22 1558. Clauses 3, 4, and 5 of 238, Jud. Code ( 1551, supra). The questions included under the 3d, 4th, and 5th clauses of 238, Jud. Code, relating to the Constitution, treaties, and laws of the United States, are so closely related, and partake so largely of the same nature that they have been construed and discussed together by the courts, and many of the rules and propositions of law which have been laid down apply to them all. The Supreme Court has said: "When our jurisdiction is invoked under 5 ... on the ground that the case falls within the fourth, fifth, or sixth of the classes of cases therein enumerated, it must appear that a title, right, privilege, or immunity was claimed under the Constitution, and a definite issue in respect to the possession of the right must be distinctly deducible from the record; or that the constitutionality of the particular law or the validity or con- struction of the particular treaty was necessarily and directly drawn in question; or that the Constitution or law of a state was distinctly claimed to be in contravention of the Constitution of the United States." Where an appeal or writ of error is taken direct to the Supreme Court under clauses 3, 4, or 5 of 238, Jud. Code, the Supreme Court acquires jurisdiction, not only of the questions specified in 21 Pike's Peak Power Co. v. Colorado Springs, 105 Fed. 1, 44 C. C. A. 333; Dawson v. Columbia Ave. Savings Fund etc. Co., 102 Fed. 200, 42 C. C. A. 258; City R. R. Co. v. Citizens St. R. R. Co., 166 U. S. 557, 41 L. Ed. 1114, 17 Sup. Ct. 653; Walla Walla v. Walla Walla Water Co., 172 U. S. 1, 43 L. d. 341, 19 Sup. Ct. 77; St. Paul Gas Light Co. v. St. Paul, 181 U. S. 142, 45 L. Ed. 788, 21 Sup. Ct. 575; Davis & Farnum Mfg. Co. v. Los Angeles, 189 U. S. 207, 47 L. Ed. 778, 23 Sup. Ct. 498; Owensboro v. Owens- boro Water Works, 115 Fed. 318, 53 C. C. A. 146. & Jndianapolis v. Central Trust Co., 83 Fed. 529, 27 C. C. A. 580. 567 JURISDICTION OF SUPREME COURT. Ch. 73, 1559-1560 that section, but of all the questions involved in the entire case. This is shown by the fact that under 238, Jud. Code, where an appeal or writ of error is taken direct to the Supreme Court in a case in which the jurisdiction of the district court is in issue, it is specifically directed that the question of jurisdiction alone shall be certified to the Supreme Court; and there is no such limita- tion prescribed in regard to any of the other cases in which juris- diction on appeal or error is conferred by 238, Jud. Code. 23 Upon review under these clauses a certificate, as required by clause (1) is unnecessary, and of no effect. The questions raised under any of the clauses of 238, Jud. Code, must be real, and must represent substantial controversies, not only as to the prin- ciples involved, but as to the relation of the party by whom they are raised, to them. 24 Under 238, Jud. Code, only those questions which the record shows to have been raised in the lower court are available to confer jurisdiction in the Supreme Court, and an assignment of errors cannot be availed of to import questions into a cause which the record does not so show to have been raised. 1559. Appeal and Error Circuit Court of Appeals to Su- preme Court. There are three classes of cases that may go from the circuit court of appeals to the Supreme Court: (1) Where the judgment of the circuit court of appeals is not made final and the matter in controversy shall exceed $1,000 besides costs. 241, Jud. Code (Appendix, post) ; (2) On certiorari from the Supreme Court to the circuit court of appeals. 240, Jud. Code (Appen- dix, post) ; (3) And on certification to the Supreme Court by the circuit court of appeals. 239, Jud. Code (Appendix, post). 1560. Appellate Jurisdiction of the Supreme Court in Cases from Court of Claims. By 242, Jud. Code (Appendix, post), appeals from the Court of Claims are allowed the United States 23Hornor v. United States, 143 U. S. 570. 36 L. Ed. 266, 12 Sup. Ct. 522. 24 Lampasas v. Bell, 180 U. S. 284, 45 L. Ed. 527, 21 Sup. Ct. 368, 1561, Ch. 73 MANUAL OF FEDERAL PROCEDURE. 568 and on vbehalf of plaintiff where the amount in controversy exceeds $3,000 or his claim is forfeited under 172, Jud. Code (Appendix, post). These appeals shall be taken within ninety days, as provided 243, Jud. Code (Appendix, post). 1561. Appeal and Error to Supreme Court from Hawaii, Porto Rico, Alaska, Philippine Islands, District of Columbia and Bankruptcy Courts. Hawaii and Porto Rico. Under 246, Jud. Code (Appendix, post), as amended 2, Act of Jan. 28, 1915, c. 22, 2, writs of error and appeals may be prosecuted from the Su- preme Courts of Hawaii and Porto Rico the same as from courts of last resort of a state under 237, Jud. Code (Appendix, post), and in all other cases by certiorari where petition is presented within six months from date of judgment or decree. Writs of error and appeal may be taken to circuit court of appeals where amount involved, exclusive of costs, exceeds the value of $5,000. Alaska. Under 247, Jud. Code (Appendix, post), certain of the Alaska district court judgments may be reviewed by the Su- preme Court in the same time, manner and under the same regu- lations as from other district courts. Philippine Islands. Likewise under acts superseding 248, Jud. Code (Appendix, post), certain judgments of the Supreme Court of the Philippine Islands may be reviewed by the Su- preme Court of the United States. Territorial Courts After Admission as State. 249, Jud. Code (Appendix, post), provides for review of judgments or decrees of territorial courts after the territory has been admitted as a state. District of Columbia. Appellate proceedings from the court of appeals for the District of Columbia are governed by 250, 251, Jud. Code (Appendix, post). Bankruptcy Courts. Appellate jurisdiction in "bankruptcy cases is conferred on the Supreme Court by 252, Jud. Code (Appendix, post). 569 JURISDICTION OF SUPREME COURT. Ch. 73, 1562 1562. Prohibition, Mandamus and Other Writs to Revise and Correct Proceedings in Lower Court and Preserve Jurisdic- tion. Under 234, Jud. Code (Appendix, post), formerly 688, Rev. Stats., and 262, Jud. Code (Appendix, post), formerly 716, Rev. Stats., the Supreme Court has power to issue writs of prohibition, writs of mandamus, writs of scire facias and all other writs necessary to the exercise of its jurisdiction and agreeable to the usages and principles of law. Under these provisions the Supreme Court may revise and cor- rect District Court decisions by mandamus where relief cannot be obtained by appeal or error. (In re Pollitz, 206 U. S. 323, 51 L. Ed. 1081, 21 Sup. Ct. 729 ; Ex parte Harding, 219 U. S. 363, 37 L. R. A. (N. S.) 392, 55 L. Ed. 252, 31 Sup. Ct. 324.) Mandamus will lie to compel the District Court to take jurisdic- tion in a proper case. (In re Pollitz,' 206 U. S. 323, 51 L. Ed. 1081, 27 Sup. Ct. 729; Grossmayer, Petitioner, 177 U. S. 48, 44 L. Ed. 665, 20 Sup. Ct. 535.) So also mandamus has been used to remand a case improperly removed, if the defect appears on the face of the record. (In re Winn, 213 U. S. 458, 53 L. Ed. 873, 29 Sup. Ct 515.) 1600, Oh. 74 MANUAL OF FEDERAL P&OCEDURE. 570 CHAPTER 74. REMOVAL FROM STATE COURT OF LAST RESORT TO UNITED STATES SUPREME COURT BY WRIT OF ERROR J URISDICTION. SEC. 1600. In General. 1601. Statute Regulating Removal by Writ of Error. 1602. Writ of Error or Certiorari to Review State Court Decisions Time for Taking. 1603. What Judgment and Decrees Reviewable. 1604. Classification of Cases Reviewable. 1605. Decision of State Court Involving the Validity of a Federal Treaty, Statute, or Authority, Their Validity Having Been Drawn in Question. 1606. Decisions Involving the Validity of State Statutes Whose Authority Drawn in Question as Repugnant to the Federal Constitution, Laws, or Treaties. 1607. Decisions for or Against Right, Title, Privilege, or Immunity Claimed Under United States Constitution, Treaty, Statute, Authority, or Com- mission. 1608. General Propositions Flowing from 237, Judicial Code. 1609. Procedure on Removal from State Courts of Last Resort. 1600. In General. In addition to the removal of causes from state to Federal courts as treated in chapter 9, cases may be re- moved to the Supreme Court of the United States under 237, Jud. Code, after they have been finally decided by the highest state court having jurisdiction of the cause. The grounds of. removal under this section are more restricted than those previously enumerated, extending only to cases in which the decision of a state court is adverse to the Federal Constitu- tion, treaties, laws, or authority, or to a right, title, privilege, or immunity claimed thereunder, the purpose of the review by the Supreme Court being to preclude any possibility of unconstitu- tional legislation by state courts. The procedure upon removal under this section is identical with that upon writ of error to the Federal courts ( 1656, post), except that under 999, Rev. Stats. (3 U. S. Comp. Stats. 1916, 1659, p. 3317), the writ is allowed by a justice of the Supreme Court 571 APPELLATE REVIEW STATE COURT. Ch. 74, 1601 of the United States or by the chief justice, judge or chancellor of the state court and thirty days' notice must be given the adverse party.. 1601. Statute Regulating Removal by Writ of Error. 237, Jud. Code (Re-enacting 709, Rev. Stats.; amended Act Dec. 23, 1914, c. 20, and Act Sept. 6, 1916, c. 448, 2). "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 statute of, or an authority exercised under the United States, and the decision is against their validity; or where is drawn in ques- tion the validity of a statute of or an authority exercised under any state, on the ground of their being repugnant to the Con- stitution, treaties, or laws of the United States, and the decision is in favor of their validity, 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 complained of had been rendered or passed in a court of the United States. The Supreme Court may reverse, modify, or affirm the judgments or decree of such state court, and may in its discretion award execution or remand the same to the court from which it was removed by the writ. "It shall be competent for the Supreme Court, by certiorari or otherwise, to require that there be certified to it for review and determination with the same power and authority and with like effect as if brought up by writ of error, any cause wherein a final judgment or decree has been rendered or passed by the highest court of a State in which a decision could be had, where is drawn in question the validity of a treaty or statute of, or an authority exercised under the United States, and the decision is in favor of their validity ; or where is drawn in question the validity of a statute of, or an authority ex- ercised under any State, on the ground of their being repug- nant to the Constitution, treaties, or laws of the United States and the decision is against their validity; or where any title, right, privilege, or immunity is claimed under the Constitu- tion, -or any treaty or statute of, or commission held or au- thority exercised under the United States, and the decision is either in favor of or against the title, right, privilege, or immunity especially set up or claimed, by either party, under such Constitution, treaty, statute, commission, or authority." (36 Stats. 1156; amended 38 Stats. 790, 39 Stats. 726; 5 Fed. Stats. Ann., 2d ed., p. 723 ; 2 U. S. Comp. Stats. 1916, 1G02-1603, Ch. 74 MANUAL OP FEDERAL PROCEDURE. 572 1214, p. 1580; Foster's Federal Practice, 5th ed., pp. 2436, 2538; Simkins' Federal Equity Suit, 3d ed., pp. 41, 746, 154.) 1602. Writ of Error or Certiorari to Review State Court Decisions Time for Taking. This section re-enacts 709, Rev. Stats., the language of that section being unchanged except by the amendment above quoted. A writ of error or certiorari are the methods by which the judg- ments or decrees of the highest courts of the states having juris- diction of the suits can be reviewed by the United States Supreme Court, and consequently writs of error or certiorari can only issue to the state courts in cases within its purview. 1 Stipulation by parties to the cause cannot confer jurisdiction upon the Supreme Court. 2 Under 6, Act Sept. 6, 1916, c. 448 (2 U. S. Comp. Stats. 1916, 1228a, p. 1805), the writ of error or certiorari must be sued out within three months of the date of entry of the judgment or decree. 1603. What Judgment and Decrees Reviewable. It is only "final judgments or decrees 3 of the highest court of a state in which a decision of the suit could be had," that are reviewable under this section. This does not limit the jurisdiction to the highest court of the state, but only to the highest court having jurisdiction of the particular cause to be reviewed. 4 1 Cohens v. Virginia, 6 Wheat. 264, 5 L. Ed. 257; Verden v. Coleman, 22 How. (U. S.) 192, 16 L. Ed. 336; Dower v. Richards, 151 U. S. 658, 38 L. E\L 305, 14 Sup. Ct. 452, 17 Mor. Min. Rep. 704; Capitol Nat. Bank v. Cadiz Nat. Bank, 172 U. S. 425, 43 L. Ed. 502, 19 Sup. Ct. 202. 2 Mills v. Brown, 16 Pet. 525, 10 L. Ed. 1055. SMcKnight v. James, 155 U. S. 687, 39 L. Ed. 310, 15 Sup. Ct. 248; Great Western Tel. Co. v. Burnham, 162 U. S. 341, 40 L. Ed. 991, 16 Sup. Ct. 850. * Sullivan v. Texas, 207 U. S. 416, 52 L. Ed. 274, 28 Sup. Ct. 215; Bacon .v. Texas, 163 U. S. 207, 41 L. Ed. 132, 16 Sup. Ct. 1023; Fisher v. Perkins, 122 U. S. 522, 30 L. Ed. 1192, 7 Sup. Ct. 1227; Groat Western Tel. Co. v. Burnham, 162 U. S. 339, 40 L. Ed. 991, 16 Sup. Ct. 850; Clark v. Pennsyl- vania, 128 U. S. 395, 32 L. Ed. 487, 9 Sup. Ct. 113; Gregory v. McVeigh, 23 Wall. 294, 23 L. Ed. 156; Stanley v. Schwalby, 162 U. S. 255, 40 L. Ed. 960, 16 Sup. Ct. 754; Williams v. Bruffy, 102 U. S. 248, 26 L. Ed. 135; Downham v. Alexandria, 9 Wall. 659, 19 L. Ed. 807; Tinsley v. Anderson, 171 U. S. 101, 43 L. Ed. 91, 18 Sup. Ct. 805; Pepke v, Cronan, 155 U. S. 100, 39 L. Ed. 84, 15 Sup. Ct. 34; Newport Light Co. v. Newport, 151 U. S. 527, 38 L. Ed. 259, 14 Sup. Ct. 429, but see Olney v. Arnold, 3 Dall. 308, 1 L. Ed. 614, as to what is "highest court of State." 573 APPELLATE REVIEW STATE COURT. Ch. 74, 1604-1605 If, however, the state court to which the writ of error is to be addressed is not the highest court of the state, the record must affirmatively show that a decision of the case could not have been had in such court. 5 "Any suit," within the meaning of this sec- tion, has been held to include a proceeding for mandamus; 6 a pro- ceeding for a writ of prohibition to restrain a municipal corpora- tion from carrying an ordinance into effect ; 7 but an order made by a judge in chambers, remanding a prisoner in habeas corpus proceedings, is not reviewable. 8 1604. Classification of Cases Reviewable. It is to be noted that this section confers appellate jurisdiction in three classes of cases: 1. The decision of the state court, in a suit in which is drawn in question the validity of a treaty or statute of, or an authority exer- cised under the United States. ( 1605, below.) 2. The decision of the state court, in a suit in which is drawn in question the validity of a statute or authority exercised under any state, on the ground of their being repugnant to the Constitution, treaties, or laws of the United States. ( 1606, below.) 3. Where the decision of the state court is either in favor of or against the title, right, privilege, or immunity claimed under the Constitution or any treaty or statute of, or commission held, or authority exercised under the United States. ( 1607, below.) 1605. Decision of State Court Involving- the Validity of a Federal Treaty, Statute, or Authority, Their Validity Having Been Drawn in Question. Formerly the state court must have decided against the validity of the treaty or statute ; otherwise there was no right to review. 9 The amendment of 1916 has changed this. 5 Fisher v. Perkins, 122 U. S. 522, 30 L. Ed. 1192, 7 Sup. Ct. 1227; Mullen v. Western Union Beef Co., 173 U. S. 116, 43 L. Ed. 635, 19 Sup. Ct. 404. McPherson v. Blacker, 146 U. S. 1, 36 L. Ed. 869, 13 Sup. Ct. 3; Hart- man v. Grecnhow, 102 U. S. 672, 26 It. Ed. 271; American Exp. Co. v. Michigan, 177 IT. S. 404, 44 L. Ed. 823, 20 Sup. Ct. 695. 7 Weston v. Charlestown, 2 Pet. 449, 7 L. Ed. 481. SMcKnight v. James, loo U. S. 685, 39 L. Ed. 310, 15 Sup. Ct. 248. See also Holmes v. Jennison, 14 Pet. 540, 10 I*. Ed. 579. 1605, Ch. 74 MANUAL OF FEDERAL PROCEDURE. 574 The validity of the statute, treaty, or authority must be "drawn in question" if there is to be a review of the decision thereon by writ of error. In order to be "drawn in question," within the meaning of the section, it is not enough that rights claimed under a treaty or statute are controverted, or that acts are done which dispute the authority. 10 But the validity of a statute is "drawn in question" whenever the power to enact it as it is by its terms, or is made to read by construction, is fairly open to denial and is denied. 11 Authority exercised under the United States" must be real and existing, not merely asserted. "Authority," as used in the section, stands upon the same footing as a treaty or statute ; and if from the record it appears that the authority did not exist or was not in force, the decision of the state court will not be re- viewed. 12 But the validity not the exercise of the authority merely must be drawn in question. 13 And there is a palpable difference between the denial of the validity of the authority and a denial of a title, privilege, or right 9 Gordon v. Caldcleugh, 3 Cranch, 268, 2 L. Ed. 436; Mclntire v. Wood, 7 Cranch, 504, 3 L. Ed. 420; McClung v. Silliman, 6 Wheat. 598, 5 L. Ed. 340; Williams v. Norris, 12 Wheat. 117, 6 L. Ed. 571; Montgomery v. Her- nandez, 12 Wheat. 129, 6 L. Ed. 575; Menard v. Aspasia, 5 Pet. 505, 8 L. Ed. 207; Strader v. Baldwin, 9 How. 261, 13 L. Ed. 130; Ableman v. Booth, 21 How. 506, 16 L. Ed. 169; Reddall v. Bryan, 24 How. 420, 16 L. Ed. 740; Eyan v. Thomas, 4 Wall. (U. S.) 603, 18 L. Ed. 460; Baker v. Baldwin, 187 U. S. 61, 47 L. Ed. 75, 23 Sup. Ct. 19. lOKennard v. Nebraska, 186 U. S. 304, 46 L. Ed. 1175, 22 Sup. Ct. 879; Florida Cent. B. Co. v. Bell, 176 U. S. 321, 44 L.'Ed. 486, 20 Sup. Ct. 399; Blackburn v. Portland Gold Min. Co., 175 U. S. 571, 44 L. Ed. 276, 20 Sup. Ct. 222, 20 Mor. Min. Eep. 358; Telluride Power Trans. Co. v. Eio Grande W. E. Co., 175 U. S. 639, 44 L. Ed. 305, 20 Sup. Ct. 245; Columbia Water Power Co. v. Col. E. S. E. C., 172 U. S. 475, 43 L. Ed. 521, 19 Sup. Ct. 247; Borgmeyer v. Idler, 159 U. S. 408, 40 L. Ed. 199, 16 Sup. Ct. 34; Bushnell v. Crooke Min. etc. Co., 148 U. S. 682, 37 L. Ed. 610, 13 Sup. Ct. 771; Cook County v. Calumet & C. Canal etc. Co., 138 U. S. 635, 34 L. Ed. 1110, 11 Sup. Ct. 435; Ferry v. King County, 141 U. S. 668, 35 L. Ed. 895, 12 Sup. Ct. 12<8; Baltimore Ey. Co. v. Hopkins, 130 U. S. 210, 32 L. Ed. 908, 9 Sup. Ct. 503. 11 Baltimore & P. E. Co. v. Hopkins. 130 U: S. 210, 32 L. Ed. 908, 9 Sup. Ct. 503; Miller v. Cornwall Ey. Co., 168 U. S. 131, 42 L. Ed. 409, 18 Sup. Ct. 34. 12 Millingar v. Hartupee, 6 Wall. 258, 18 L. Ed. 829. 13 Walsti v. Columbus E. Co., 176 U. S. 469, 44 L. Ed. 548, 20 Sup. Ct. 393; Hamblin v. Western Land Co., 147 U. S. 531, 37 L. Ed. 267, 13 Sup. Ct 353; New Orleans v. New Orleans Water Works Co., 142 U. S. 79. 35 L. Ed. 943, 12 Sup. Ct. 142; Millingar v. Hartupee, 6 Wall. 258, 18 L. Ed. 829. 575 APPELLATE REVIEW STATE COURT. Ch. 74. 160f> or immunity claimed under it. A denial of the latter does not present a federal question. 14 "Authority," as used in the section, is construed to mean personal authority, and not an abstract riirht created under a statute. 15 Consequently this clause has been ap- plied in those cases in which the authority exercised by a public officer of the United States has been called in question, not where a general right is set up under a statute. 18 Thus, a decision against the validity of the authority of the President of the United States to approve a deed of Indian treaty lands is reviewable under this clause ; 1T as is the decision of a state court denying the claim of a disbursing officer of the United States that money in. his hands due United States seamen could not be attached by process out of a state court. 18 A refusal by a state court to give effect to a judgment of a United States court rendered upon the point in dispute, with jurisdiction of the case and of the parties, involves the denial of the validity of an authority exercised under the United States, and may be reviewed by the Supreme Court. 19 A judgment of the supreme court of the District of Columbia is subject to review under this clause. 20 14 Baltimore & P. R. Co. v. Hopkins, 130 U. S. 210, 32 L. Ed. 908, 9 Sup. Ct. 503; Abbott v. Tacoma Bnnk of Commerce, 175 U. S. 409, 44 L. Ed. 217, 20 Sup. Ct. 153; Cook County v. Calumet & C. Canal etc. Co., 138 U. S. 636, 34 L. Ed. 1110, 11 Sup. Ct. 435; United States v. Lynch, 137 U. S. 280, 34 L. Ed. 700, 11 Sup. Ct. 114; Clough v. Curtis, 134 U. S. 361, 33 L. Ed. 945, 10 Sup. Ct. 573. 15 Telluride Power Transmission Co. v. Rio Grande Western R. Co., 175 U. S. 639, 44 L. Ed. 305, 20 Sup. Ct. 245. iMcGuire v. Massachusetts, 3 Wall. 387, 18 L. Ed. 226; Millingar v. Hartupee,.6 Wall. (U. S.) 258, 18 L. Ed. 829; Daniels v. Tearney, 102 U. S. 415, 26 L. Ed. 187; Sharpe v. Doyle, 102 U. S. 686, 26 L. Ed* 277: Buck v. Colbath, 3 Wall. 334, 18 L. Ed. 257. IT Pickering v. Lomax, 145 U. S. 310, 36 L. Ed. 716, 12 Sup. Ct. 860. 18 Buchanan v. Alexander, 4 How. 20, 11 L. Ed. 857. l Mutual L. Ins. Co. v. McGrew (1903), 188 U. S. 311, 63 L. E. A. 33, 47 L. Ed. 480, 23 Sup. Ct. 375; Hancock Nat. Bank v. Farnum, 176 U. S. 640, 44 L. Ed. 619, 20 Sup. Ct. 506; Dupasseur v. Rocheroau, 21 Wall. 130, 22 L. Ed. 588; Pittsburgh etc. R. Co. v. Long Island L. & T. Co., 172 U. S. 493, 43 L. Ed. 528, 19 Sup. Ct. 238; Central Nat. Bank v. Rtovena. 171 TJ. S. 109, 43 L. Ed. 97, 18 Sup. Ct. 837; Crescent City Live Stock Co. v. Butchor's Union Slaughter House Co., 120 TJ. S. 141, 30 L. Ed. 614, 7 Sup. Ct. 472; Palmer v. llu>s.-y. 119 U. S. 9G, 30 I* T.d. 362, 7 Sup. Ct. 158. 20 Embrj v. Palmer, 107 U. S. 3, 27 L. Ed. 346, 2 Sup. Ct. 25. 1606, Ch. 74 MANUAL OF FEDERAL PROCEDURE. 576 1606. Decisions Involving the Validity of State Statutes Whose Authority Drawn in Question as Repugnant to the Federal Constitution, Laws, or Treaties. It is only the statute of a state which can be re-examined under this clause, 21 and a statute of a territory is not a statute of a state, nor is it an act of Congress, nor a statute of the United States, within the meaning of this section, and consequently the decision of the state courts, that the law of a territory is not repugnant to the Constitution of the United States, is not reviewable. 22 In considering this clause, it is necessary, as it was in consider- ing the preceding one, to determine when the validity of a treaty, statute, or authority is ' ' drawn in question. ' ' In order to give the Supreme Court jurisdiction to review a judgment rendered by the highest court of this state in favor of the validity of a statute or an authority exercised under a state, the validity of the statute or authority must have been drawn in question upon the ground of their being repugnant to the Constitution, laws, or treaties of the United States. When no such ground has been presented to or considered by the courts of the state, it cannot be said that those courts have disregarded the Constitution of the United States, and the Supreme Court has no jurisdiction. 23 Whether or not the Constitution of a state is violated by state law is not within the scope of this clause. 24 Nor is the question of the correct construc- 21 Scott v. Jones, 5 How. 343, 12 L. Ed. 181. 22 Messenger v. Mason, 10 Wall. 507, 19 L. Ed. 1028; Miners' Bank v. Iowa, 12 How. 1, 13 L. Ed. 867. 23Scudder v. Coler, 175 U. S. 32, 44 L. Ed. 62, 20 Sup. Ct. 26; Columbia Water Power Co. v. Columbia Elec. Street E. R. Co., 172 TJ. S. 475, 43 L. Ed. 521, 19 Sup. Ct. 247 (cases therein cited); Miller v. Cornwall E. Co., 168 U. S. 131, 42 L. Ed. 409, 18 Sup. Ct. 34; Levy v. Superior Court, 167 U. S. 175, 42 L. Ed. 126, 17 Sup. Ct. 769; Adams v. Preston, 22 How. 473, 16 L. Ed. 273; Murdock v. Memphis, 20 Wall. (U. S.) 590, 22 L. Ed. 429; Michigan Central E. R. Co. v. Michigan Southern E. E. Co., 19 How. 378, 15 I*. Ed. 689. 24 Calder v. Bull, 3 Dall. 386, 1 L. Ed. 648; Jackson Y. Lamphire, 3 Pet. 280, 7 L. Ed. 679; Withers v. Buckley, 20 How. 84, 15 L:- Ed. 816; Congdon & Tenn. Mining Co. v. Goodman, 2 Black, 574, 17 L. Ed. 257; Solomons Y. Graham, 15 Wall. 208, 21 L. Ed. 37; Leeper v. Texas, 139 U. S. 462, 35 L. Ed. 225, 11 Sup. Ct. 577; Murray v. Louisiana, 163 U. S. 101, 41 L. Ed. 87, 16 Sup. Ct. 990; East Hartford v. Hartford Bridge Co., 10 How. 511, 13 L. Ed. 518; Baldwin v. Kansas, 129 U. S. 52, 32 L. Ed. 640, 9 Sup. Ct. 193; Missouri v. Harris, 144 U. S. 210, 36 L. Ed. 407, 12 Sup. Ct. 838; Sage v. Louisiana Board of Liquidation, 144 U. S. 647, 36 L. Ed. 577, 12 Sup. Ct. 755; Powell v. Brunswick County Supervisors, 150 U. S. 433, 37 L. Ed. 577 APPELLATE REVIEW STATE COURT. Ch. 74, 1607 tion of a state law, when its validity is admitted. 25 Formerly the decision in the state court must have been in favor of the validity of the statute of or the authority exercised under the statutes drawn in question. 26 But the amendment of 1916 has changed this so that a decision either for or against is revicwable. It is not necessary that the state law be either in the form of a statute enacted by the legislature of the state or in the form of a Constitution established by people of the state; a by-law or ordinance of a municipal cor- poration may be such an exercise of legislative power that it may be properly considered as a law within the meaning of this clause of the section. 27 1607. Decisions for or Against Right, Title, Privilege, or Immunity Claimed Under United States Constitution, Treaty, Statute, Authority, or Commission. To give the Supreme Court jurisdiction in this class of cases the right, title, or immunity which is denied by the decisions of the state court must grow out of the Constitution or a treaty or statute of the United States which has been relied upon. 28 The title, right, privilege, or immunity claimed under the Con- stitution or treaty or statute of or commission held under the United States, with possibly some rare exceptions, must be spe- 1134, 14 Sup. Ct. 166; In re Kemmler, 136 U. S. 436, 34 L. Ed. 519, 10 Sup. Ct. 930; McElvaine v. Brush, 142 U. S. 155, 35 L. Ed. 971, 12 Sup. Ct. 156. 25Congdon & Tcnn. Mining Co. v. Goodman, 2 Black, 574, 17 L. Ed. 257; Scott v. Jones, 5 How. 343, 12 L. Ed. 181; Lossiuer v. Price. 12 How. 59, 13 L. Ed. 893; Commercial Bank v. Buckingham, 5 How. 317, 12 L. Ed. 169; Smith v. Hunter, 7 How. 738, 12> L. Ed. 894; Grand Gulf R. Co. v. Marshall, 12 How. 165, 13 L. Ed. 938; Ferry -v. King County, 141 U. 8. 668, 35 L. Ed. 895, 12 Sup. Ct. 128; Snell v. Chicago, 152 U. S. 191, 38 L. Ed. 408, 14 Sup. Ct. 489. 26McKinney v. Carroll, 12 Pet. 66, 9 L. Ed. 1002; Commonwealth Bank v. Griffith, 14 Pet. 56, 10 L. Ed. 352; Walker v. Taylor, 5 How. 64, 12 L. Ed. 52. 27 Bacon v. Texas, 163 U. S. 207, 41 L. Ed. 132, 16 Sup. Ct. 1023; New Orleans Water Works Co. v. Louisiana Sugar Kenning Co., 125 U. S. 18, 31 L. Ed. 607, 8 Sup. Ct. 741. 28 Miller v. Lancaster Bank, 106 U. S. 542, 27 L. Ed. 289, 1 Sup. Ct. 536; Long v. Converse, 91 U. S. 105, 23 L. Ed. 233; Hale v. Gainea, 22 How. 160, 16 L. Ed. 269; Wynn v. Morris, 20 How. 5, 15 L. Ed. 800; Henderson v. Tennessee, 10 How. 323, 13 L. Ed. 439; Verden v. Coloman, 1 Black, 472, 17 L. Ed. 161; Montgomery v. Hernandez, 12 Wheat. 129, 6 L. Ed. 575. Manual 87 1607, Ch. 74 MANUAL OF FEDERAL PROCEDURE. 578 cially set up or claimed in the court below in order to vest the Supreme Court with jurisdiction. 29 An exception to this rule is found in a case where the validity of a treaty or statute of the United States is raised and a decision is against it, or where the validity of a state statute is drawn in question and the decision is in favor of its validity. In such cases the federal question need not be specifically set up if it appears in the record, was decided and such decision was necessarily involved in the case so that it could not have been determined without deciding such question. 30 Ordinarily, however, the right, title, privilege, or immunity re- lied upon must not only be specially set up or claimed, but it must be so claimed or set up at the proper time and in the proper 29 Home for Incurables v. New York, 187 U. S. 155, 63 L. R. A. 329, 47 L. Ed. 117, 23 Sup. Ct. 84; Bolln v. Nebraska, 176 U. S. 83, 44 L. Ed. 382, 20 Sup. Ct. 287; Telluride Power Transmission Co. v. Rio Grande West- ern' Railway Co., 175 U. S. 639, 44 L. Ed. 305, 20 Sup. Ct. 245; Columbia Water Power Co. v. Columbia Electric Street Railway Co., 172 U. S. 475, 43 L. Ed. 521, 19 Sup. Ct. 247; Levy v. Superior Court, 167 U. S. 175, 42 L. Ed. 126, 17 Sup. Ct. 769; Oxley Stave Co. v. Butler Co., 166 U. S. 648. 41 L. Ed. 1149, 17 Sup. Ct. 709; Chicago etc. R. Co. v. Chicago, 164 U. S. 454, 41 L. Ed. 511, 17 Sup. Ct. 129; Powell v. Brunswick County Super- visors, 150 U. S. 433, 37 L. Ed. 1134, 14 Sup. Ct. 166; Roby v. Colehour, 146 U. S. 153, 36 L. Ed. .922, 13 Sup. Ct. 47; Leeper v. Texas, 139 U. S. 462, 35 L. Ed. 225, 11 Sup. Ct. 577; Baldwin v. Kansas, 129 U. S. 52, 32 L. Ed. 640, 9 Sup. Ct. 193; Chappell v. Bradshaw, 128 U. S. 132, 32 L. Ed. 369, 9 Sup. Ct. 40; French v. Hopkins, 124 U. S. 524, 31 L. Ed. 536, 8 Sup. Ct. 589; Spies v. Illinois, 123 U. S. 131, 31 L. Ed. 80, 8 Sup. Ct. 21; Arm- strong v. Athens County, 16 Pet. 281, 10 L. Ed. 965; Mississippi & Missouri R. Co. v. Rock, 4 Wall. 177, 18 L. Ed. 381. 30 Miller v. Nicholk, 4 Wheat. 311, 4 L. Ed. 578; Willson v. Blackbird Creek Marsh Co., 2 Pet. 245, 7 L. Ed. 412; -Satterlee v. Mathewson, 2 Pet. 380, 7 L. Ed. 458; Fisher v. Cockerell, 5 Pet. 248, 8 L. Ed. 114; Crowell v. Randell, 10 Pet. 368, 9 L. Ed. 458; Harris v. Dennie, 3 Pet. 292, 7 L. Ed. 683; Farney v. Towle, 1 Black, 350, 17 L. Ed. 216; Hoyt v. Sheldon, 1 Black, 518, 17 L. Ed. 65; Mississippi & Missouri etc. R. Co. v. Rock, 4 Wall. 177, 18 L. Ed. 381; Furman v. Nichol, 8 Wall. 44, 19 L. Ed. 370; Columbia Water Power Co. v. Columbia Elec. St. R. R. Co., 172 U. S. 475, 43 L. Ed. 521, 19 -Sup. Ct. 247; Kaukauna Water Power Co. v. Green Bay etc. Canal Co., 142 U. S. 254, 35 L. Ed. 1004, 12 Sup. Ct. 173; Hickie v. Starke, 1 Pet. 94, 7 K Ed. 67; Bridge Proprs. v. Hoboken Land Co., 1 Wall. 116, 17 L. Ed. 571; Yazoo & M. V. R. Co. v. Adams, 180 U. S. 1, 45 L. Ed. 395, 21 Sup. Ct. 240; Telluride Power Transmission Co. v. Rio Grande Western Railway Co., 175 U. S. 39, 44 L. Ed. 305, 20 Sup. Ct. 245; Green Bay etc. Canal Co. v. Patten Paper Co., 172 U. S. 58, 43 L. Ed. 364, 19 Sup. Ct. 97; Chicago etc. R. R. Co. v. Chicago, 166 U. S. 226, 41 L. Ed. 979, 17 Sup. Ct. 581; Sayward v. Denny, 158 U. S. 180, 39 L. Ed. 941, 15 Sup. Ct. 777; Powell v. Brunswick County Supervisors, 150 U. S. 440, 37 L. Ed. 1134, 14 Sup. Ct. 166; Davis v. Packard, 6 Pet. 41, 8 L. Ed. 312. 579 APPELLATE REVIEW STATE COURT. Ch. 74, 1607 manner. 31 The question must be raised in the state court by the individual who seeks to have it reviewed in the Supreme Court. The fact that someone else has raised it in the state court is of no avail to the appellant or plaintiff in error, if he himself fail to raise it in the court below. 32 Moreover the right, title, privilege, or immunity must be personal to the appellant or plaintiff in error. 33 A state officer, testing the constitutionality of a state law solely in the interest of third persons, has no standing to review the judgment, even though a judgment for costs was ren- dered against him personally. 34 "The proper time to present the question is in the trial court whenever that is required by state practice in accordance with which the highest court of a state will not revise the judgment of the court below on questions not therein raised." 86 And if it is not presented before decision by the court 31 Mutual Life Ins. Co. v. McGrew, 188 U. S. 292, 63 L. R. A. 33, 47 L. Ed. 480, 23 Sup. Ct. 375; Say ward v. Denney, 158 U. 8. 180, 39 L. Ed. 941, 15 Sup. Ct. 777; Morrison v. Watson, 154 U. S. Ill, 38 L. Ed. 927, 14 Sup. Ct. 995; Miller v. Texas, 153 U. S. 535, 38 L. Ed. 812, 14 Sup. Ct. 874; Maxwell v. Newbold, 18 How. 515, 15 L. Ed. 508; Hoyt v. Sheldon, 1 Black, 518, 17 L. Ed. 65. 82 De Lamar's Nevada Gold Mining Co. v. Nesbitt, 177 U. S. 523, 44 L. Ed. 872, 20 Sup. Ct. 715; Texas etc. R. Co. v. Johnson, 151 U. S. 81, 38 L. Ed. 81, 14 Sup. Ct. 250; Missouri v. Andriano, 138 U. S. 496, 34 L. Ed. 1012, 11 Sup. Ct. 385; Linton v. Stanton, 12 How. 423, 13 L. Ed. 1050; Strader v. Baldwin, 9 How. 261, 13 L. Ed. 130; Manning v. French, 133 U. 8. 186, 33 L. Ed. 582, 10 Sup. Ct. 258; McNulta v. Lochridge, 141 U. S. 327, 35 L. Ed. 796, 12 Sup. Ct. 11; Kizer v. Texarkana etc. B. R. Co., 179 U. S. 199, 45 L. Ed. 152, 21 Sup. Ct. 100; Conde v. York, 168 U. S. 642, 42 L. Ed. 611, 18 Sup. Ct. 234; Northern P. R. Co. v. Patterson, 154 TJ. S. 130, 38 L. Ed. 934, 14 Sup. Ct. 977; Ludeling v. Chaffe, 143 U. S. 301. 36 L. Ed, 313, 12 Sup. Ct. 439; Giles v. Little, 134 U. S. 645, 33 L. Ed. 1062, 10 Sup. Ct. 623; Miller v. Lancaster Nat. Bank, 106 U. S. 542,.27 L. Ed. 289, 1 Sup. Ct. 536; Long v. Converse, 91 U. S. 105, 23 L. Ed. 233; Owings v. Norwood, 5 Cranch, 344, 3 L. Ed. 120; Montgomery v. Hernandez, 12 Wheat. 129, 6 L. Ed. 575; Hale v. Gaines, 22 How. 144, 16 L. Ed. 264; Verden v. Coleman, 1 Black, 472, 17 If. Ed. 161: Sully v. American National Bank, 178 U. S. 289, 44 L. Ed. 1072, 20 Sup. Ct. 935; Smith v. Indiana, 191 U. S. 138, 48 L. Ed. 125, 24 Sup. Ct. 51. 33 Ibid. 34 Smith v. Indiana, 191 U. S. 138, 48 L. Ed. 125, 24 Sup. Ct. 51. 35 Spies v. Illinois, 123 U. S. 131, 31 L. Ed. 80, 8 Sup. Ct. 21; see also Jaeobi v. Alabama, 187 U. S. 133, 47 L. Ed. IOC, 23 Sup. Ct. 48; Layton v. Missouri, 187 U. S. 356, 47 L. Ed. 214, 23 Sup. Ct. 137; Erie R. R. Co. v. Purdy, 185 U. S. 148, 46 L. Ed. 847, 22 Sup. Ct.. 605; Mutual Life Ins. Co. v. McGrew, 188 U. S. 308, 47 L. Ed. 480, 23 Sup. Ct. 375, 63 L. R. A. 33; Baldwin T. Kansas, 129 U. S. 52, 32 L. Ed. 640, 9 Sup. Ct. 193. 1607, Ch. 74 MANUAL OF FEDERAL PROCEDURE. 580 of last resort in the state, it then becomes too late to present it. 36 It is not sufficient, therefore, to make the claim for the first time in the petition for writ of error; 37 or in a petition for rehear- ing after 'judgment, 38 except in a case where the highest state court has entertained a petition for rehearing, containing federal ques- tions, and has decided them. 39 The proper manner in which to raise the question is by motion, exception, pleading, or any other action which asserts the right, title, privilege or immunity positively and unmistakably upon 36Bolln v. Nebraska, 176 U. S. 83, 44 L. Ed. 382, 20 Sup. Ct. 287; Citi- zens' Sav. Bank v. Owensboro, 173 U. S. 636, 43 L. Ed. 840, 19 Sup. Ct. 571; Winona etc. Land Co. v. Minnesota, 159 U. S. 540, 40 L. Ed. 252, 16 Sup. Ct. 88. 37 Say-ward v. Denny, 158 U. S. 180, 39 L. Ed. 941, 15 Sup. Ct. 777; Morri- son v. Watson, 154 U. S. Ill, 38 L. Ed. 927, 14 Sup. Ct. 995; Miller v. Texas, 153 U. S. 535, 38 L. Ed. 812, 14 Sup. Ct. 874; Duncan v. Missouri, 152 U. S. 377, 38 L. Ed. 485, 14 Sup. Ct. 570; Powell v. Brunswick County Supervisors, 150 U. S. 433, 37 L, Ed. 1134, 14 Sup. Ct. 166; Schuyler Nat. Bank v. Bollong, 150 U. S. 85, 37 L. Ed. 1008, 14 Sup. Ct. 24; Loeber v. Schroeder, 149 U. S. 580, 37 L. Ed. 856, 13 Sup. Ct. 934; Brown y. Massa- chusetts, 144 U. S. 573, 36 L. Ed. 546, 12 Sup. Ct. 757; Butler v. Gage, 138 U. S. 52, 34 L. Ed. 869, 11 Sup. Ct. 235; Chappell v. Bradshaw, 123 U. S. 132, 32 L. Ed. 369, 9 Sup. Ct. 40; Brooks v. Missouri, 124 U. S. 394, 31 L. Ed. 454, 8 Sup. Ct. 443; Spies v. Illinois, 123 U. S. 131, 31 L. Ed. 80, 8 Sup. Ct. 21. 38 Johnson v. New York L. Ins. Co., 187 U. S. 496, 47 L. Ed. 273, 23 Sup. Ct. 194; Simmerman v. Nebraska, 116 U. S. 54, 29 L. Ed. 535, 6 Sup. Ct. 333; Santa Cruz County v. Santa Cruz R. Co., Ill U. S. 361, 28 L. Ed. 456, 4 Sup. Ct. 474; Meyer v. Richmond, 172 U. S. 82, 43 L. Ed. 374, 19 Sup. Ct. 106; Winona etc. R. Co. v. Plainview, 143 U. S. 371, 36 L. Ed. 191, 12 Sup. Ct. 530; Worthy v. Barrett, 9 Wall. 611, 19 L. Ed. 565; Mutual L. Ins. Co. v. MeGrew, 188 U. S-. 291, 6-3 L. R. A. 33, 47 L. Ed. 480, 23 Sup. Ct. 375; Turner v. Richardson, 180 U. S. 9-2, 45 L. Ed. 438, 21 Sup. Ct. 295; Capital Nat. Bank v. Cadiz First Nat. Bank, 172 U. S. 425, 43 L. Ed. 502, 19 Sup. Ct. 202; Meyer v. Richmond, 172 U. S. 82, 43 L. Ed. 374, 19 Sup. Ct: 106; Miller v. Cornwall R. Co., 168 U. S. 131, 42 L. Ed. 409, 18 Sup. Ct. 34; Zadig v. Baldwin, 166 U. S. 488, 41 L. Ed. 1087, 17 Sup. Ct. 639; Pirn v. St. Lours, 165 U. S. 273, 41 L. Ed. 714, 17 Sup. Ct. 322; Sayward v. Denny, 158 U. S. 180, 39 L. Ed. 941, 15 Sup. Ct. 777; Loeber v. Schroeder, 149 U. S. 580, 37 L. Ed. 856, 13 Sup. Ct. 934; Bushnell v. Crooke Min. etc. Co., 148 U. S. 682, 37 L. Ed. 610, 13 Sup. Ct. 771; Winona etc. R. Co. v. Plainview, 143 U. S. 371, 36 L. Ed. 191, 12 Sup. Ct. 530; Leeper v. Texas, 139 U. S. 462, 35 L. Ed. 225, 11 Sup. Ct. 577; Butler v. Gage, 138 U. S. 52, 34 L. Ed. 869, 11 Sup. Ct. 235; Texas etc. R. Co. v. Southern Pac. R. Co., 137 U. S. 48, 34 L. Ed. 614, 11 Sup. Ct. 10; Susquehanna Boom Co. v. West Branch Boom Co., 110 U. S. 57, 28 L. Ed. 69, 3 Sup. Ct. 438. 39Mallett v. North Carolina, 181 U. S. 589, 45 L. Ed. 1015, 21 Sup. Ct. 730; Mutual Life Ins, Co. v. -McGrew, 188 U. S. 291, 63 L. R. A. 33. 47 L. Ed. 480, 23 Sup. Ct. 375; Leigh v. Green, 193 U. S. 79, 48 L. Ed. 623, 21 Sup. Ct. 390. 581 APPELLATE REVIEW STATE COURT. Ch. 74, 1607 the record. 40 No particular form of words or phrases has ever been declared necessary, and all that is required is that the as- sertion of the rights be brought clearly to the attention of the court. 41 But the fact that it was so called to the court's attention and that it was decided or that its decision was necessary to the judgment cr decree rendered in the case must appear upon the face of the record 42 either expressly or by necessary implica- 40Oxley Stave Co. v. Butler County, 166 U. S. 648, 41 L. Ed. 1149, 17 Sup. Ct. 709; Mutual Life Ins. Co. v. McGrew, 188 U. S. 291, 63 L. R. A. 33, 47 L. Ed. 480, 23 Sup. Ct. 375; Kipley v. Illinois, 170 U. S. 182, 42 L. Ed. 998, 18 Sup. Ct. 550; Levy v. Superior Court, 167 U. S. 175, 177, 42 L. Ed. 126, 17 Sup. Ct. 769; Dewey v. Des Moines, 173 U. S. 193, 43 L. Ed. 665, 19 Sup. Ct. 379; Bolln v. Nebraska, 176 U. S. 83, 44 L. Ed. 382, 20 Sup. Ct. 287; Winona etc. Land Co. v. Minnesota, 159 U. S. 540, 40 L. Ed. 252, 16 Sup. Ct. 88; Michigan Sugar Co. v. Michigan, 185 U. S. 112, 46 L. Ed. 829, 22 Sup. Ct. 581; New York Central E. B. Co. v. New York, 186 U. S. 269, 46 L. Ed. 1158, 22 Sup. Ct. 916; Chapin v. Fye, 179 U. S. 127, 45 L. Ed. 119, 21 Sup. Ct. 71; De Lamar's Nev. Gold Mining Co. v. Nesbitt, 177 U. S. 523, 44 L. Ed. 872, 20 Sup. Ct. 715; Keokuk & H. Bridge Co. v. Illinois, 175 U. S. 626, 44 L. Ed. 299, 20 Sup. Ct. 205; Miller v. Cornwall E. Co., 168 U. S. 131, 42 L. Ed. 409, 18 Sup. Ct. 34; Porter v. Foley, 24 How. 415, 16 L. Ed. 740; Maxwell v. Newbold, 18 How. 511, 15 L. Ed. 506; Lawler v. Walker, 14 How. 149, 14 L. Ed. 364; Hoyt v. Sheldon, 1 Black, 518, 17 L. Ed. 65; Edwards v. Elliott, 21 Wall. 532, 22 L. Ed. 487; Messenger v. Mason, 10 Wall. 507, 19 L. Ed. 1028; Erie B. E. Co. v. Purdy, 185 U. S. 148, 46 L. Ed. 847, 22 Sup. Ct. 605. 41 Green Bay etc. Canal Co. v. Patten Paper Co., 172 U. S. 58, 43 L. Ed. 364, 19 Sup. Ct. 97; Carter v. Texas, 177 U. S. 442, 44 L. Ed. 839, 20 Sup. Ct. 687; Erie E. E. Co. v. Purdy, 185 U. S. 148, 46 L. Ed. 847, 22 Sup. Ct. 605. Citizens Sav. Bank v. Owcnsboro, 173 U. S. 636, 43 L. Ed. 840, 19 Sup. Ct. 530; Dewey v. Des Moines, 173 U. S. 193, 43 L. Ed. 665, 19 Sup. Ct. 379; Capital Nat. Bank v. Cadiz First Nat. Bank, 172 U. S. 425, 43 L. Ed. 502, 19 Sup. Ct. 202; Green" Bay etc. Canal Co. v. Patten Paper Co.. 172 U. S. 58, 43 L. Ed. 364, 19 Sup. Ct. 97; Kipley v.'Ulinois, 170 U. S. 182. 42 L. Ed. 998, 18 Sup. Ct. 550; Miller v. Cornwall E. Co., 168 U. S. 131, 42 L. Ed. 409, 18 Sup. Ct. 34; Louisville etc. E. Co. v. Louisville, 166 U. S. 709, 41 L. Ed. 1173, 17 Sup. Ct. 725; Dibble v t Bellingham Bay Land Co., 163 U. S. 63, 41 L. Ed. 72, 16 Sup. Ct. 939; Chemical Nat. Bank v. City Bank, 160 U. S. 646, 40 L. Ed. 568, 16 Sup. Ct. 417; Winona & St. P. Land Co. v. Minnesota, 159 U. S. 540, 40 L. Ed. 252, 16 Sup. Ct. 88; Goodenough Horseshoe Mfg. Co. v. Ehode I. Horseshoe Co., 154 U. S. 635, 24 L. Ed. 368, 14 Sup. Ct. 1180; Gray v. Coan, 154 U. S. 589, 38 L. Ed. 1088, 14 Sup. Ct. 1168; Morrison v. Watson, 154 U. S. Ill, 38 L. Ed. 927, 14 Sup. Ct. 995; Miller v. Texas, 153 U. S. 535, 38 L. Ed. 812, 14 Sup. Ct. 874; Marsh v. Nichols, 140 U. S. 344, 35 L. Ed. 413, 11 Sup. Ct. 798; Murray v. Charles- town, 96 U. S. 432, 24 L. Ed. 760; Wolf v. Stix, 96 U. S. 541, 24 L. Ed. 640; Suydam v. Williamson, 20 How. 427, 15 L. Ed. 978; Christ Church v. Phil. Co., 20 How. 26, 15 L. Ed. 802; Carter v. Bennett, 15 How. 354, 14 L. Ed. 727; Ocean Ins. Co. v. Polleys, 13 Pet. 157, 10 L. Ed. 105; Crowell v. Ean- dcll, 10 Pet. 368, 9 L. Ed. 458; Davis v. Parkard, 7 Pet. 276, 8 L. Ed. 684; Satterlee v. Matthewso'n, 2 Pet. 380, 7 L. Ed. 458; Miller v. Nicholls, 4 1G07, Ch. 74 MANUAL OF FEDERAL PROCEDURE. 582 tion. 43 In this connection, note that a certificate of a chief justice of the highest court of a state, that certain federal questions were presented and passed upon, is not a part of the record, its office being merely to make more certain that which is too indefinite in the record, and it is insufficient, in itself, to give the Supreme Court jurisdiction. 44 To authorize a review of this class of cases as of the preceding classes, the decision formerly must have been adverse to a title, right, privilege, or immunity claimed by the plaintiff in error. 45 The amendment of 1916 now permits review of decisions in favor of federal claims. Wheat. 311, 4 L. Ed. 578; The Victory, 6 Wall. 382, 18 L; Ed. 848; Say ward v. Denny, 158 U. S. 180, 39 L. Ed. 941, 15 Sup. Ct. 777; Choteati v. Mar- guerite, 12 Pet. 507, 9 L. Ed. 1174; Coons v. Gallaher, 15 Pet. 18, 10 L. Ed. 645; Commercial Bank v. Buckingham, 5 How. 317, 12 L. Ed. 169; Grand Gulf R. & Banking Co. v. Marshall, 12 How. 165, 13 L. Ed. 938; Maxwell v. Newbold, 18 How. 511, 15 L. Ed. 506; Hoyt v. Sheldon, 1 Black, 518, 17 L. Ed. 65; Taylor v. Morton, 2 Black, 481, 17 L. Ed. 277; Gibson v. Chou- teau, 8 Wall. 314, 19 L. Ed. 317; Cockroft v. Vose, 14 Wall. 5, 20 L. Ed. 875; Detroit City R. Co. v. Guthard, 114 U. S. 133, 29 L. Ed. 118, 5 Sup. Ct. 811; Kansas Endowment Assn. v. Kansas, 120 U. S. 103, 30 L. Ed. 593, 7 Sup. Ct. 499; Nauer v. Thomas, 13 Allen (Mass.), 572; Inglee v. Cool- idge, 2 Wheat. 363, 4 L. Ed. 261; Fisher v. Cockerell, 5 Pet. 248, 8 L. Ed. 114; Crawford v. Branch Bank, 7 How. 279, 12 L. Ed. 700; Attorney-Gen- eral v. Federal Street Meeting House, 1 Black, 262, 17 L. Ed. 61; Parmelee v, Lawrence, 11 Wall. 36, 20 L. Ed. 48; Brooks v. Missouri, 124 U. S. 394, 31 L. Ed. 454, 8 Sup. Ct. 443; Powell v. Brunswick County Supervisors, 150 U. S. 433, 37 L. Ed. 1134, 14 Sup. Ct. 166; Ansbro v. United States, 159 U. S. 695, 40 L. Ed. 310, 16 Sup. Ct. 187; Murdock v. Memphis, 20 Wall. 636, 22 L. Ed. 444; Ware v. Galveston City Co., Ill U. S. 170, 28 L. Ed. 393, 4 Sup. Ct. 337. 43 Craig v. Missouri, 4 Pet. 410, 7 Ji. Ed. 903; Powell v. Brunswick County Supervisors, 150 U. S. 433, 37 L. Ed. 1134, 14 Sup. Ct. 166; Sayward v. Denny, 158 U. S. 180, 39 L. Ed. 941, 15 Sup. Ct. 777. 44 Home for Incurables v. New York, 187 U. S. 155, 63 L. R. A. 329, 47 L. Ed. 117, 23 Sup. Ct. 84; Yazoo & M. V. R. R. Co. y. Adams, 180 U. S. 41, 45 L. Ed. 415, 21 Sup. Ct. 256; Henkel v. Cincinnati, 177 U. S. 170, 44 L. Ed. 720, 20 Sup. Ct. 573; Dibble v. Bellingham Bay Land Co., 163 U. S. 63, 41 L. Ed. 72, 16 Sup. Ct. 939; Say ward v. Denny, 158 U. S. 180, 39 L. Ed. 941, 15 Sup. Ct. 777; Newport Light Co. v. Newport, 151 U. S. 527, 38 L. Ed. 259, 14 Sup. Ct. 429; Powell v. Brunswick County Supervisors, 150 U. S. 433, 37 L. Ed. 1134, 14 Sup. Ct. 166; Roby v. Colehour, 146 U. S. 153, 36 L. Ed. 922, 13 Sup. Ct. 47; Felix v. Scharnweber, 125 U. S. 54, 31 L. Ed. 687, 8 Sup. Ct. 759; Caperton v. Bowyer, 14 Wall. 216, 20 L. Ed. 882; Lawler v. Walker, 14 How. 149, 14 L. Ed. 364; Parmelee v. Lawrence, 11 Wall. 36, 20 L. Ed. 48; Messenger v. Mason, 10 Wall. 507, 19 L. Ed. 1028. 45 De Lamar's Nev. Gold Min. Co. v. Nesbitt, 177 U. S. 523, 44 L. Ed. 872, 20 Sup. Ct. 715; Rae v. Homestead Loan etc. Co., 176 U. S. 121, 44 L. Ed. 398, 20 Sup. Ct. 341; Abbott v. Taeoma .Bank of Commerce, 175 U. S. 409, 44 L, Ed. 217, 20 Sup. Ct. 153; Jersey City etc. Power Co. v. Morgan, 160 U. S. 288, 40 L. Ed. 430, 16 Sup. Ct. 276; Sayward v. Denny, 583 APPELLATE REVIEW STATE COURT. Ch. 74, 160S 1608. General Propositions Flowing from 237, Judicial Code. Having discussed each of the three classes of cases review- able by writ of error under 237, Judicial Code, there still remain certain general rules or propositions applicable to the section as a whole, which are briefly as follows: 1. It is not necessary that any particular amount of money be involved in order to entitle the plaintiff in error to a review. 48 2. The section applies alike to criminal and civil cases either in law or in equity. 47 3. Federal question must be real, not fictitious; that is, there must be some ground for the averment of the question. 48 4. Questions of fact cannot be reviewed by the Supreme Court, but must be taken as found. 49 5. "If it appears that the judgment of the state court was cor- rect, the jurisdiction does not attach regardless of the presence of a federal question.". 80 158 U. S. 180, 39 L. Ed. 941, 15 Sup. Ct. 777; Dower r. Richards, 151 U. 8. 658, 38 L. Ed. 305, 14 Sup. Ct. 452, 17 Mor. Min. Rep. 704; Tyler v. Cass Co., 142 U. S. 288, 35 L. Ed. 1016, 12 Sup. Ct. 225; Gordon v. Caldcleugh, 3 Crunch, 268, 2 L. Ed. 436; Buel v. Van Ness, 8 Wheat. 312, 5 L. Ed. 624; Fulton v. McAffee, 16 Pet. 149, 10 L. Ed. 918; Ocean Ins. Co. v. Polleys, 13 Pet. 157, 10 L. Ed. 105; Ross v. Doe, 1 Pet. 655, 7 L. Ed. 302; Hale v. Gaincs, 22 How. 144, 16 L. Ed. 264; Nelson v. Moloney, 174 U. S. 164, 43 L. Ed. 934, 19 Sup. Ct. 622; Missouri Pacific Ry. Co. v. Fitzgerald, 160 U. S. 556, 40 L. Ed. 536, 16 Sup. Ct. 389. 46Weston v. Charleston, 2 Pet. 449, 7 L. Ed. 481; Holmes v. Jennison, 14 Pet. 540, 10 L. Ed. 579; The Paquete Habana, 175 U. S. 682, 44 L. Ed. 320, 20 Sup. Ct. 290. As to amount and value as an element of Supreme Court's appellate jurisdiction and history of changes therein, see Kirby v. America Soda Fountain Co., 194 U. S. 144, 48 L. Ed. 911, 24 Sup. Ct. 619. 47 Cohens v. Virginia, 6 Wheat. 264, 6 L. Ed. 257; Verden v. Coleman, 22 How. 192, 16 L. Ed. 336; Dower v. Richards, 151 U. S. 658, 38 L. Ed. 305, 14 Sup. Ct. 452, 17 Mor. Min. Rep. 704. 48Hamblin v. Western Land Co., 147 U. S. 531, 37 L. Ed. 267, 13 Sup. Ct. 353. See also Millingar-r. Hartupee, 6 Wall. 258, 18 L. Ed. 829; New Orleans v. New Orleans Water Works Co., 142 U. S. 79, 35 L. Ed. 943, 12 Sup. Ct. 142; Wilson v. North Carolina, 169 U. S. 586, 42 L. Ed. 8G5, 18 Sup. Ct. 435; St.' Louis etc. R. Co. v. Missouri, 156 U. S. 478, 39 L. Ed. 502, 15 Sup. Ct. 443. 4 Hedrick v. Atchison etc. R. Co., 167 U. S. 673, 42 L. Ed. 320, 17 Sup. Ct. 922; Atchison etc. R. Co. v. Matthews, 174 U. S. 96, 43 L. Ed. 909, 19 Sup. Ct. 609; Backus v. Fort St. Union Depot Co., 169 U. S. 557, 42 L. Ed. 853, 18 Sup. Ct. 445; Egan v. Hart, 165 U. S. 188, 41 L. Ed. 680, 17 Sup. Ct. 300; In re Buchanan, 158 U. S. 31, 39 L. Ed. 884, 15 Sup. Ct. 723; Chicago etc. R. Co. v. Chicago, 166 U. S. 226, 41 L. Ed. 979, 17 Sup Ut. 581; Missouri etc. R. Co. v. Haber, 169 U. a 613, 42 L. Ed. 878, 18 Sup. Ct. 488. 50 Hammond v. Johnston. 1^2 T. S. 7. 3." L. Ed. 941, 12 Sup. Ct. 141. 1608, Ch. 74 MANUAL OF FEDERAL PROCEDURE. 584 The Supreme Court has summarized most of the essential con- ditions necessary to its jurisdiction to review decisions of state courts under this section, in the early case of Murdock v. Memphis, 20 Wall. 635, where Miller, J., says in the opinion: "We hold the following propositions on this subject as flowing from the statute as it now stands: "That it is essential to the jurisdiction of this court over the judgment of a state court that it shall appear that one of the questions mentioned in the act (now 237, Judicial Code) must have been raised and presented to the state court. "That it must have been decided by the state court, or that its decision was necessary to the judgment or decree rendered in the case. "That the decision must have been against the right, claimed or asserted by the plaintiff in error under the Constitution, treaties, laws, or authority of the United States. (This is now changed by the amendment of 1916.) "These things appearing, this court has jurisdiction and must examine the judgment so far as to enable it to decide whether this claim of right was correctly adjudicated by the state court. "If it finds that it was rightly decided, the judgment must be affirmed. "If it was erroneously decided against a plaintiff in error (or appellant) then this court must further inquire whether there is any other matter or issue adjudged by the state court, which is sufficiently broad to maintain the judgment of that court, notwithstanding the error in deciding the issue raised by the Federal question. If this is found to be the case, the judgment must be affirmed without inquiring into the sound- ness of the decision on such other matter or issue. "But if it be found that the issue raised by the question of Federal law is of such controlling character that its correct decision is necessary to any final judgment in the case, or that there has been no decision by the state court of any other matter or issue which is sufficient to maintain the judgment of that court, without regard to the Federal question, then this court will reverse the judgment of the state court, and will either render such judgment here as the state court should have rendered, or remand the case to that court as the circum- stances of the case may require." 585 APPELLATE REVIEW STATE COURT. Ch. 74, 1609 1609. Procedure on Removal from State Courts of Last Resort. 1003, Rev. Stats. "Writs of error from the Supreme Court to a state court in cases authorized by law shall be issued in the same manner and under the same regulations, and shall have the same effect, as if the judgment or decree complained of had been rendered or passed in a court of the United States." (6 Fed. Stats. Ann., 2d ed., p. 194; 3 U. S. Comp. Stats. 1916, 1662.) Thus, it is seen that the procedure on removal of causes from state courts is identical with that upon writ of error from the United States court, the discussion of which is found in chapter 75. From the nature of the proceeding, however, the forms to be used will differ from those suggested there. The following are suggested as guides : PETITION FOB WRIT OF ERROR. To the Honorable Chief Justice of the Supreme Court of the United States and to the Associate Justices of the Court: , the plaintiff in the above-entitled cause, shows by this petition to this honorable court, that in the records, proceedings and decisions in the court of the state of , the same being the highest court of said state in which a decision could be had in this suit, a manifest error has occurred, greatly to the damage of said . \ That, as appears in the record and proceedings there was drawn in ques- tion [here state the federal question particularly involved]; all of which fully appears in the records and proceedings of the case and is specifically set forth in the assignment of errors filed herewith. Wherefore petitioner prays that a writ of error be allowed, and that a transcript of record, proceedings and papers upon which said decree was rendered, duly authenticated, be ordered sent to the Supreme Court of the United States at Washington, D. C., under the rules of such court in such cases made and provided, and that the same may be by this honorable court inspected and corrected in accordance with law and justice. Signed, ; Solicitor. WRIT OF ERROR. The President of the United States to the Honorable Judges of the Supreme Court of the State of , Greeting: Whereas in the record and proceeding and in the rendition of the judg- ment of the above-entitled cause which is now before you or some of you 1609, Ch. 74 MANUAL OF FEDERAL PROCEDURE. 586 between , plaintiff, and , defendant, your court being the highest court of said state having jurisdiction of the cause, there was drawn in question [here state the federal question involved], and whereas there is manifest error in said decision to the damage of , the petitioner in error, and whereas we are willing that if there is error it should be duly corrected, we command you, therefore, if judgment be given therein, that you send under seal of your court, the record and proceedings in said cause to the Supreme Court of the United States together with this writ, within such time as may be necessary in order that you have the same at Washington on the day o-f , 19 , that the record may be then inspected by the Supreme Court of the United States to be then and there held in order that justice may be done. Witness the Honorable , Chief Justice of the Supreme Court the day of , A. D. 19 . [Seal] - , Clerk of the Supreme Court of the United States. The allowance of the writ may be indorsed upon it as follows: Allowed upon - giving bond in the sum of - dollars according to law. t Justice of the Supreme Court of the United States. Or a separate order of allowance may be made in substantially the following form: In the Supreme Court of the United States - Term, - , 19 . ORDER OF ALLOWANCE OF WRIT OF ERROB. C.D. On this - day of - , 19 , the application of A. B., plaintiff in this action, for a writ of error, came on to be heard, said plaintiff being repre- sented by counsel, and it appearing to the court from the petition filed herein and from the record filed therewith that his application should be granted, and that a transcript of the record proceedings and papers, upon which the judgment of the court was rendered properly certified, should be sent to the Supreme Court of the United States, as prayed, in order that such proceedings may be had as may be just. Now, therefore it is ordered that the writ of error be allowed upon bond being furnished by the plaintiff conditioned according to law in the sum of $ - [if it is desired that this act as a supersedeas, insert that provision here], and that a true copy of the record, assignment of errors and all proceedings in the case in the - court of - shall be transmitted to the Supreme Court of the United States, duly certified according to law, in order that said court may inspect the same and take such action thereon as it deems proper according to law. 587 APPELLATE REVIEW STATE COURT. Ch. 74, 1609 For the bond, citation, assignment of errors, and other papers, the forms given in chapter 75 may be used, the proper title of court and judge or justice being inserted. The procedure on certiorari is the same as from the Circuit Court of Appeals to the Supreme Court. Instructions for certiorari pro- ceedings by the clerk of the Supreme Court appear in our Appen- dix immediately before the Supreme Court Rules. Ch. 75 MANUAL OF FEDERAL PROCEDURE. 588 CHAPTER 75. APPEAL AND ERROR. SEO. 1650. In General. 1651. Parties. 1652. Time for Writs of Error or Appeals from District Courts to the Su- preme Court of the United States. 1653. Time for Writs of Error or Appeals to Circuit Courts of Appeals. 1654. Time for Appeals to Circuit Courts of Appeals from Interlocutory Orders. 1655. Time for Writs of Error or Appeals from Circuit Courts of Appeals to Supreme Court. 1656. Time to Secure Eeview of State Court Decisions. 1657. Procedure on Writs of Error and Appeals to Circuit Courts of Appeals the Same as to Supreme Court. 1658. Allowance of Writs of Error or Appeals. 1659. Amendment of Writ of Error. 1660. Writ of Error By Whom Issued. 1661. Assignment of Errors on Writ of Error. 1662. Form of Assignment of Errors. 1663. Citation. 1664. Bond. 1665. No Bond Required of United State*. 166. Supersedeas. 1667. Injunction Pending Appeal. 1668. Proceedings in Forma Pauperis. 1669. Record on Error. 1669a. Transcript on Appeal and Error. 1670. Reduction and Preparation of Record on Appeal and Error to Su- preme Court. 1671. Reduction and Preparation of Record Under New Equity Rules. 1672. Printing and Filing of Record on Appeal and Error to Circuit Courts of Appeals. 1673. Printing and Filing of Record on Appeal and Error to Supreme Court Use of Record in Circuit Court of Appeals as Part of Transcript. 1674. One Record Sufficient When Both Parties Appeal to Supreme Court Direct. 1675. Time for Return of Appeals and Writs of Error. 1676. Summary of Procedure on Appeal and Error. 1677. Review of Final Decisions of Circuit Courts of Appeals npon Certiorari. 589 APPEAL AND ERROR. Ch. 75, 1650 SEC. 1678. Certification by Circuit Courts of Appeals to Supreme Court. 1679. Appellate Procedure District Courts of Alaska to the Supreme Court. 1680. Appellate Procedure Hawaii and Porto Rico. 1681. Appellate Procedure From Supreme Court of Philippines. 1682. Appellate Procedure From District of Columbia. 1683. Appellate Procedure From District of Columbia Where Decision of Circuit Court of Appeals is Otherwise Final. 1684. Certiorari Ninth Circuit to Supreme Court in Alaska Cases. 1685. Procedure After Transcript Reaches Appellate Court. 1686. No Reversal for Error in Fact. 1687. Damages and Costs on Error. 1688. Dismissal of Appeal. 1689. Diminution of Record. 1690. Mandate. 1691. Death of Party After Judgment, but Before Appeal. 1692. Death of Party During Appellate Proceedings. 1693. Mistake as to Proper Method of Review not Ground for Dismissal. 1650. In General. A judgment at law is carried up for re- v view, not by appeal, but by writ of error. (Porter v. F. M. Davies & Co. (8th Cir.), 223 Fed. 465, 466, 140 C. C. A. 11; Clark v. Belt (8th Cir.), 223 Fed. 573, 579, 138 C. C. A. 1.) The term "appeal" is reserved exclusively for the designation of proceedings for the review of equity cases; this phraseology is closely adhered to by the federal courts, and an error of law cannot be considered under an appeal, nor can an equity suit be reviewed by writ of error. (Stevens v. Clark, 62 Fed. 321, 10 C. C. A. 379 ; Highland Boy Gold Mining Co. v. Strickley, 116 Fed. 852, 54 C. C. A. 186 ; Francisco v. Chicago & A. R. R. Co., 149 Fed. 359, 9 Ann. Cas. 628, 79 C. C. A. 292; Ghost v. United States, 168 Fed. 843, 94 C. C. A. 253 ; Missouri Pac. R. R. Co. v. Chicago & A. R. R! Co., 132 U. S. 191, 33 L. Ed. 309, 10 Sup. Ct. 65.) The principal distinction between the two methods of review lies in scope of the examination of the appellate court. Only questions of law can be considered upon a writ of error, while an appeal carries up the entire cause, both as to law and fact, for reconsideration. Writs of error, together with all other preliminary proceedings upon review, either in law or equity, are regulated, not by state 1650, Ch. 75 MANUAL OP FEDERAL PROCEDURE. 590 laws, for the conformity act has no application to them, Tmt by federal statutes or rules, or, in their absence, by the common law in case of a review of a law question and by the English chancery practice in reviews of equity cases. In fact, the statutes governing procedure upon writs of error are, with a very few exceptions, identical with those governing appeals, and the procedure is applicable to and, as a rule, governs, writs of error as well as appeals. There are four general classes of cases in appellate proceedings : 1. United States district courts to the United States Supreme Court. 2. United States district courts to circuit courts of appeals. 3. Circuit courts of appeals to Supreme Court. 4. State courts to United States Supreme Court. In addition to these four classes of cases, there is provided a method of review by the Supreme Court in cases where the decision of the circuit courts of appeals is otherwise final (infra, chapter 73), by certiorari or by certification of questions of law from the circuit court of appeals to the Supreme Court. Procedure in all four of those general classes is identical, except as to the time within which the appeal must be sued out, and as to differences in practice due to variations in the various rules of different circuits, which should always be examined by the prac- titioner. These rules will be found in the Appendix, where the corresponding rules of each circuit are grouped together, and where circuit courts of appeals rules are designated by number in this chapter, the compilation in the Appendix is referred to. Consequently all appellate proceedings are herein treated col- lectively, except as to time, while proceedings upon certiorari or certification of questions of law, are separately treated. Procedure in the appellate court from courts of Hawaii, Porto Rico, Alaska, Philippines and District of Columbia, falls within one of the four classes enumerated as indicated. Procedure in the appellate court, after the transcript has been properly filed therein, dismissal of appeals, writ of mandate, and 591 APPEAL AND ERROR. Ch. 75, 1651 effect of death on appeals, are separately treated in the latter part of this chapter. 1651. Parties. In case of a joint judgment or decree, all parties who are affected by it must join in the application for appeal or a writ of error, unless some of them, upon being notified by those of their codefendants who desire to sue out the writ or appeal of their intention so to do, refuse to join; in which case the party or parties desiring are entitled to, without such joinder, upon motion stating the facts. But the notice and consequent order permitting the severance of the parties must be incorporated in the record. (Hardee v. Wilson, 146 U. S. 180, 36 L. Ed. 933, 13 Sup. Ct. 39 ; Godbe v. Tootle, 154 U. S. 577, 19 L. Ed. 831, 14 Sup. Ct. 1167; Estis v. Trabue, 128 U. S. 229, 32 L. Ed. 437, 9 Sup. Ct. 58; Humes v. Third Nat. Bank, 54 Fed. 917, 4 C. C. A. 668.) This notice and refusal and the order allowing the writ upon motion showing these facts, is known as "Summons and Sever- ance," and is essential to the jurisdiction of the appellate court. But notice in open court at the time when the judgment is ren- dered, the writ being allowed at that time upon motion, or appeal taken if shown by the record, amounts to summons and severance, and no written notice is then required. *(Lamon v. Speer Hard- ware Co., 190 Fed. 734, 111 C. C. A. 462 ; Alsop v. Conway, 188 Fed. 572, 110 C. C. A. 366 ; Ireton v. Pennsylvania Co., 185 Fed. 84, 107 C. C. A. 304; Love v. Export Storage Co., 143 Fed. 1, 74 C. C. A. 155 ; Loveless v. Ransom, 107 Fed. 627, 46 C. C. A. 515 ; McNulta v. West Chicago Park, 99 Fed, 328, 39 C. C. A. 545.) Failure to join all interested parties without having obtained a severance is fatal to the jurisdiction of the appellate court, and the motion for severance must be incorporated in the record in order to vest that court with jurisdiction. This matter may be raised at any time before final disposition of the appeal. (Love- less v. Ransom, 107 Fed. 627, 46 C. C. A. 515.) It is said in the case ,of Hardee v. Wilson, 146 U. S. 179, 36 L. Ed. 933, 13 Sup. Ct. 39, that there are two reasons for the rule : 1651, Ch. 75 MANUAL OP FEDERAL PROCEDURE. 592 (1) That the successful parties may be at liberty to proceed in the enforcement of his judgment or decree against the parties who do not desire to have it reviewed; (2) that the appellate tribunal shall not be required to decide a second or third time the same question on the same record. An exception to this rule exists in a case where one of several defendants affected by a joint decree takes his appeal in open court when the decree is entered. (Detroit v. Guarantee Trust Co., 168 Fed. 611, 93 C. C. A. 604.) Inasmuch as all parties are then deemed present in court, the allowance of the appeal under these conditions takes the place of summons and severance, and if citation issues, or if other notice is given, it is considered superfluous, any defects being immaterial. (Swift & Co. v. Kortrecht, 110 Fed. 328, 49 C. C. A. 68.) Ordinarily only a party to the suit is entitled to appeal (Ex parte Cockeroft, 104 U. S. 578, 26 L. Ed. 856 ; In re Woerishoff er, 74 Fed. 916, 21 C. C. A. 175, and cases cited). But there are cases in which the interest of persons not made parties to the original suit are so affected by the decree that they are entitled to a review. (Davis v. Mercantile Trust Co., 152 U. S. 594, 38 L. Ed. 563, 14 Sup. Ct. 693.) When this is the case,' the interest of such persons must clearly appear as well as the manner in which such interest is affected by the decree complained of, which should probably be done by a sworn petition for appeal, setting up those facts and petitioning for an order of intervention allowing them to become parties for the purposes of appeal. (Aiken v. Smith, 54 Fed. 896, 4 C. C. A. 654.) Such intervention, however, rests within the discretion of the court, and if the petition is refused mandamus will not lie. (In re Columbia Leal Estate Co., 112 Fed. 645, 50 C. C. A. 406.) An example of a case in which an appeal may be allowed on behalf of one not a party to the original proceeding is found in the case of an appeal by a receiver in a foreclosure suit who is not a party to the original suit. (Hovey v. McDonald, 109 U. S. 155, 27 L. Ed. 889; 3 Sup-. Ct. 136.) 593 APPEAL AND ERROR. Ch. 75, 1652-1653 Another illustration is the case of a purchaser of property at a foreclosure sale. (Davis v. Mercantile Trust Co., 152 U. S. 594, 38 L. Ed. 563, 14 Sup. Ot. 693.) Where a corporation is a party to a suit, an appeal may be prosecuted in the corporate name, but if the appellant is a part- nership, the appeal may not be taken in the firm name, but must be prosecuted in the name of the individual partners, each of whom must personally sign the appeal bond. (Estis v. Trabue, 128 U. S. 225, 32 L. Ed. 437, 9 Sup. Ct. 58.) The rule that all parties must be joined in an appeal applies to appellees as well as to appellants, but where several appellees are representatives of a class, "citation need be served only upon a few of each class who should appear in good faith in defense of the interest of that class." (Kidder v. Fidelity Ins. Trust & Safe Deposit Co., 105 Fed. 821, 44 C. C. A. 593.) 1652. Time for Writs of Error or Appeals from District Courts to the Supreme Court of the United States. The act of Sept. 6, 1916, c. 448, 6 (quoted 1655, below), provides that no writ of error, appeal or writ of certiorari intended to bring up a , case for review by the Supreme Court shall be allowed unless ap- plied for within three months after the entry of the judgment or decree complained of. Certiorari to the Philippines may be in six months. 1653. Time for Writs of Error or Appeals to Circuit Courts of Appeals. Those sections of the Judicial Code relating to cir- cuit courts of appeals are largely re-enactments of the act of March 3, 1891. However, section 11 of that act prescribing the time, procedure and method of appeal has not been re-enacted (except as to the concluding sentence thereof, which now constitutes sec- tion 132, Judicial Code), but still remains in force. That part of the act relating to the time within which appeals and writs of error must be taken is as follows: Manual 88 1654^1655, Ch. 75 MANUAL OP FEDERAL PROCEDURE. 594 Part 11, Act March 3, 1891. "No appeal or writ of error by which any order, judgment, or decree may be reviewed in the circuit court of appeals under the provisions of this act shall be taken or sued out except within six months after the entry of the order, judgment, or decree sought to be reviewed : Provided, however, That in all cases in which a lesser time is now by law limited for appeals or writs of error, such limits of time shall apply to appeal or writs of error in such cases taken to or sued out from the circuit courts of appeals." (6 Fed. Stats. Ann., 2d ed., p. 161 ; 3 U. S. Comp. Stats. 1916, 1647.) 1654. Time for Appeals to Circuit Courts of Appeals from Interlocutory Orders. Part 129, Jitd. Code. "The appeal . . . (from an inter- locutory order or decree, granting, continuing, refusing, dis- solving, or refusing to dissolve an injunction, or appointing a receiver ,^-to the circuit court of appeals) must be taken within thirty days from the entry of such order or decree." (36 Stats. 1134; 5 Fed. Stats. Ann., 2d ed., p. 629; 2 U. S. Comp. Stats. 1916, 1121; Foster's Federal Practice, 5th ed., pp. 930, 1943, 2411, 2436; Simkins' Federal Equity Suit, 3d ed. pp. 626, 627, 628, 629.) 1655. Time for Writs of Error or Appeals from Circuit Courts of Appeals to Supreme Court. Writs of error or appeals in the third class of cases above enumerated must be taken within three months. 6, Act Sept. 6, 1916, c. 448. Time for application for writ of error, appeal, or certiorari. "No writ of error, appeal, or writ of certiorari intended to bring up any cause for review by the Supreme Court shall be allowed or entertained unless duly applied for within three months after entry of the judg- ment or decree complained of: Provided, That writs of cer- tiorari addressed to the Supreme Court of the Philippine Islands may be granted if application therefor be made within six months." (39 Stats., p. - -, 6 Fed. Stats. Ann., 2d ed v p. 158, in note to 1008, Rev. Stats. ; 2 U. S. Comp. Stats. 1916, 1228a, p. 1805.) 595 APPEAL AND ERROR. Ch. 75, 1656-1658 1656. Time to Secure Review of State Court Decisions. 1003, Rev. Stats. "Writs of error from the Supreme Court to a state court, in cases authorized by law, shall be issued in the same manner and under the same regulations, and shall have the same effect, as if the judgment or decree complained of had been rendered or passed in a court of the United States." (6 Fed. Stats. Ann., 2d ed., p. 194; 3 U. S. Comp. Stats. 1916, 1662.) The writ of error must therefore be allowed within three months after the entry of judgment or decree, as provided by 6, Act Sept. 6, 1916, c. 448 (quoted 1655, supra). 1657. Procedure on Writs of Error and Appeals to Circuit Courts of Appeals the Same as to Supreme Court. Part 11, Act March 3, 1891, c. 517. "All provisions of law now in force regulating the methods and system of review through appeals and writs of error shall regulate the methods and systems of appeals and writs of error provided for in this act in respect to the circuit courts of appeals, including all provisions for bonds or other securities to be required and taken on such appeals and writs of error." (6 Fed. Stats. Ann., 2d ed., p. 170; 3 U. S. Comp. Stats. 1916, 1651.) The effect of this act is to make the practice and procedure upon appeals and writs of error to the circuit court of appeals identical with that upon appeal and error to the Supreme Court, except as to difference resulting from differences between rules of the various circuits. The latter part of this act is 132, Jud. Code, quoted above, 1510, giving the circuit judges the same powers and duties as other judges as to allowance of appeals and writ of error. 1658. Allowance of Writs of Error or Appeals. The first step in prosecuting an appeal, whether to the Supreme Court or the circuit court of appeals, is to have the appeal "allowed." When this is done the appeal is "taken" in the sense prescribed by the statutes fixing the time for appeal. 1658, Ch. 75 MANUAL OF FEDERAL, PROCEDURE. 596 There are two methods of having an appeal allowed : First. When the decree of the lower court is rendered, appel- lant may give notice of appeal in open court, at the same time filing his assignment of errors (which by court rules must be filed before the allowance) and also filing and procuring the accept- ance of the necessary bond within the term of court then pending, An appeal thus allowed in open court is perfected without any written petition for appeal or citation. Second. If the appeal is not perfected as above, the first step toward having it allowed is the preparation and filing of a petition for appeal addressed to the lower court, which may be substantially in the following form: ' S^nW LiO .S'i/F.foSOO'T'I V [Title of Cause.] [Title of Court.] In Equity. PETITION FOB APPEAL. To the Honorable - , District Judge. The above-named - feeling aggrieved by the decree rendered and entered in the above-entitled cause on the - day of - , A. D. 19 , does hereby appeal from said decree to the circuit court of appeals for the - circuit [or to the Supreme Court of the United States] for the reasons set forth in the assignment of errors filed herewith, and he prays that his appeal be allowed and that citation be issued as provided by law, and that a transcript of the record proceedings and document upon which said decree was based, duly authenticated be sent to the United States Circuit Court of Appeals for the - Circuit [or to the Supreme Court of the United States, sitting at - ], under the rules of such court in such cases made and provided. And your petitioner further prays that the proper order relating to the required security to be required of him be made. * ''.;! petition having been filed, it must be allowed, for in all appealable cases, the right of appeal is absolute, the only discre- tion which the judge can exercise being as to the sufficiency of the appeal bond, and if he refuses to allow the appeal, mandamus may be resorted to. But a writ of error may be denied if the grounds assigned in the assignment of errors appear insufficient to the court. (Simp- son v. First National Bank, 129 Fed. 257, 63 C. C. A. 371.) 597 APPEAL AND ERROR. Ch. 75, 1659 No particular form of allowance is required, the usual proceed- ing being an indorsement upon the petition, to the following effect : Appeal allowed upon giving bond as required by law for the sum of $ . , Judge. Or the following separate order of allowance may be made: [Title of Cause.] [Title of Court.] In Equity No. . ORDER ALLOWING APPEAU On motion of , Esq., solicitor and counsel for complainant, it is hereby ordered that an appeal to the Supreme Court of the United States from the decree heretofore filed and entered herein, be, and the same is hereby allowed, and that a certified transcript of the record, testimony, exhibits, stipulations, and all proceedings be forthwith transmitted t<> said Supreme Court of the United States. It is further ordered that tLe bond on appeal be fixed at the sum of $ . [If supersedeaa be desired, here insert, "the same to act as a supersedes bond and also as * bond for cost and damages on appeal."] Dated , 19, , Justice. The mere approval of the bond or signing oi the petition by the judge amounts to an allowance of the appeal, and if the peti- tion for appeal and assignment of errors are filed within the time allowed, a subsequent allowance of the appeal operates by relation as of that time, and the appeal is properly perfected within that time. 1659. Amendment of Writ of Error. Prior to the passage of the act of June 1, 1872, any formal defect in a writ of error defeated the jurisdiction of the Supreme Court, and could not be so amended as to cure any such defect. (Insurance Co. of Valley of Va. v. Mordecai, 21 How. 195, 16 L. Ed. 94; Porter v. Foley, 21 How. 393, 16 L. Ed. 154; Carroll v. Dorsey, 20 How. 204, 15 L. Ed. 803; Hodge v. Williams, 22 How. 87, 16 L. Ed. 237; Wilson v. Life & F. Ins. Co., 12 Pet. 140, 9 L. Ed. 1032; Deneale v. Archer, 8 Pet. 526, 8 L. Ed. 1033 ; Davenport v. Fletcher, 16 How. 142, 14 L. Ed 879; Miller v. McKenzie, 10 Wall. 582, 19 L. Ed. 1043; Mus- 1G59, Ch. 75 MANUAL OP FEDERAL PROCEDURE. 598 sina v. Cavazos, 6 Wall. 355, 361, 18 L. Ed. 810; The Protector, 11 Wall. 82, 20 L. Ed. 47 ; Moulder v. Forest, 154 U. S. 567, 19 L. Ed. 154, 14 Sup. Ct. 1207.) 1005, Rev. Stats., taken from the act of June 1, 1872, permits an amendment of writs of error as to matters of form subject to the discretion of the court. The section is as follows: "The Supreme Court may, at any time, in its discretion and upon such terms as it may deem just, allow an amend- ment of a writ of error, when there is a mistake in the tcste of the writ, or a seal to the writ is wanting, or when the writ is made returnable on a day other than the day of the com- mencement of the term next ensuing the issue of the writ, or when the statement of the title of the action or parties thereto in the writ is defective, if the defect can be remedied by reference to the accompanying record, and in all other particulars of form: Provided, the defect has not preju- diced, and the amendment will not injure the defendant in error." (6 Fed. Stats. Ann., 2d ed., p. 196; 3 U. S. Comp. Stats. 1916, 1664.) This section permits amendments in the instances therein enumerated to be allowed by the circuit court of appeals as well as by the Supreme Court, it being provided by the act of March 3, 1891, section 11, that "all provisions of law now in force regu- lating the methods and system of review through appeals or writs of error shall regulate the method and system of appeals and writs of error provided for in this act in respect of the circuit court of appeals, including all provision for bonds or other securi- ties to be required and taken on such appeals and writs of error." (Cotter v. Alabama G. S. R. Co., 61 Fed. 747, 10 C. C. A. 35.) The statute is largely self-explanatory as to the cases in which an amendment may be allowed, but it is to be borne in mind that permission to amend is not a matter of right, but is given only when in the discretion of the court it is deemed just and proper. (Pearson v. Yewdall, 95 U. S. 294, 24 L. Ed. 436.) The theory of 1005, Rev. Stats., is that a colorable writ shall operate as a writ of error, the court being given power to amend 599 APPEAL AND ERROR. Ch. 75, KJ,")9 it in so far as it is informal. (Cotter v. Alabama G. S. R. Co., 61 Fed. 747, 10 C. C. A. 35.) But a purported writ of error in the name of the chief justice of the supreme court of a state, bearing the teste of that chief justice, signed by the clerk and sealed by the seal of that court, but not in the name of the President, or under the authority of the United States, is not a colorable writ in such sense as to allow amendment. (Bondurant v. Watson, 103 U. S. 278, 26 L. Ed. 447.) However, a writ running in the name of the President of the United States, but defective in that it was not tested by the chief justice of the United States, nor signed by the clerk of the Su- preme Court of the United States, and did not bear the seal of either the Supreme Court or the circuit court, but, instead, was sealed with the seal of the supreme court of Texas, tested by the chief justice and signed by the clerk of that court, is held to be a colorable writ and subject to amendment. (Texas etc. Ry. Co. v. Kirk, 111 U. S. 486, 28 L. Ed. 481, 4 Sup. Ct. 500.) The power to permit the amendment of a defective writ under this section is very liberal, and it is not fatal that more than six months had passed since the final decree sought to be reviewed was pronounced. The statute allows the amendment at any time in the discretion of the court. (Cotter v. Alabama G. S. R. Co., 61 Fed. 747, 10 C. C. A. 35.) Power to allow an amendment, however, depends primarily upon whether or not the defect can be remedied by reference to the accompanying record. If it cannot, no amendment can be granted. (Cotter v. Alabama G. S. R. Co., 61 Fed. 750, 10 C. C. A. 35; Martin v. Burford, 176 Fed. 555, 100 C. C. A. 159; Estis v. Trabue, 128 U. S. 228, 32 L. Ed. 437, 9 Sup. Ct. 58.) But when an amendment is allowed, it dates back by relation to the date of its original issuance, and presupposes jurisdiction from that date. (Knickerbocker Life Ins. Co. v. Pendleton, 115 U. S. 339, 29 L. Ed. 432, 6 Sup. Ct. 74.) 1659, Ch. 75 MANUAL OF FEDERAL PROCEDURE. 600 No amendment can be allowed if it will result in prejudice or injury to the adverse party, or if it appears that the amendment requested, if granted, would be useless, as in a case where the question presented by the record is already settled by previous decisions of the Supreme Court. (Pearson v. Yewdall, 95 U. S. 294, 24 L. Ed. 436.) The name of a party omitted by accident may be added by way of amendment if the same is authorized by a reference to the record. (Walton v. Marietta Chair Co., 157 U. S. 346, 39 L. Ed. 725, 15 Sup. Ct. 626; Thomas v. Green County, 146 Fed. 969, 77 C. C. A. 487.) But the objection that a plaintiff is not the real party in in- terest cannot be set up by way of amendment, and the same may be said of the objection that the plaintiff is without capacity to sue. These things must be set up before trial. (Texas & P. R. Co. v. Jackson, 193 Fed. 948, 113 C. C. A. 576 ; St. Louis & S. F. R. Co. v. Herr, 193 Fed. 950, 113 C. C. A. 578 ; Northwestern S. S. Co. v. Cochran, 191 Fed. 149, 111 C. C. A. 626.) Amendments in "all particulars of form" have been held to include a case where the writ of error was not attached to the transcript nor made a part of the record, but was returned to the appellate court upon the day when the transcript was filed therein properly indorsed. Having performed its function, it is permitted to be attached to the record after being received by the appellate court as should have been done in the first instance. (Cotter v. Alabama G. S. R. Co., 61 Fed. 747, 10 C. C. A. 35.) Amendments under this section have been allowed in the follow- ing cases: Texas R, Co. v. Kirk, 111 U. S. 486, 28 L. Ed. 481, 4 Sup. Ct. 500; Course v. Stead, 4 Ball. 22, 1 L. Ed. 724; Burnham v. North Chicago Street R. R. Co., 87 Fed. 168, 30 C. C. A. 594 ; Alaska United Gold Mining Co. v. Keating, 116 Fed. 561, 53 C. C. A. 655; Miller v. Texas, 153 U. S. 535, 38 L. Ed. 812, 14 Sup. Ct. 874; McPhaul v. Lapsey, 20 Wall. 282, 22 L. Ed. 346; Walton v. Marietta Chair Co., 157 U. S. 342, 39 L. Ed. 725, 15 Sup. Ct. 626; Pacific Bank v. Mixter, 114 U. S. 463, 29 L. Ed, 221, 801 APPEAL AND ERROR. Ch. 75, 1660-1661 5 Sup. Ct. 944; Moore v. Simonds, 100 U. S. 145, 25 L. Ed. 590; Gumbel v. Pitkin, 113 U. S. 545, 28 L. Ed. 1128, 5 Sup. Ct. 616; Estis v. Trabue, 128 U. S. 225, 32 L. Ed. 437, 9 Sup. Ct. 58 ; United States v. Schoverling, 146 U. S. 76, 36 L. Ed. 893, 13 Sup. Ct. 24; Atherton v. Fowler, 91 U. S. 143, 23 L. Ed. 265 ; Evans v. Brown, 109 U. S. 180, 27 L. Ed. 898, 3 Sup. Ct. 83 ; Mossman v. Higginson, 4 Dall. 12, 1 L. Ed. 720; Sea v. Connecticut Mutual I^ife Ins. Co., 154 U. S. 659, 25 L. Ed. 772, 14 Sup. Ct. 1191 ; Hampton v. Rouse, 15 Wall. 684, 21 L. Ed. 250; Semmes v. United States, 91 U. S. 21, 23 L. Ed. 193 ; National Bank v. Bank of Commerce, 99 U. S. 608, 25 L. Ed. 362. 1660. Writ of Error By Whom Issued. 1004, Rev. Stats. ' ' Writs of error returnable to the Su- preme Court or a circuit court of appeals may be issued as well by the clerks of the district courts, under the seals thereof, as by the clerk of the Supreme Court or of a circuit court of appeals. When so issued they shall be, as nearly as each case may admit, agreeable to the form of a writ of error issued by the clerk of the supreme court or the clerk of a circuit court of appeals." (37 Stats. 54; 6 Fed. Stats. Ann., 2d ed., p. 194; 3 U. S. Comp. Stats. 1916, 1663.) 1661. Assignment of Errors on Writ of Error. 997, Rev. Stats. "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 record, an assignment of errors, and a prayer for reversal, with a citation to the adverse party." (6 Fed. Stats. Ann., 2d ed., p. 163; 3 U. S. Comp. Stats. 1916, 1653.) This assignment of errors must set forth separately and par- ticularly each error asserted and intended to be urged under Supreme Court Rule 35 (Appendix, post), and C. C. A. Rule 11 (Appendix, post). It must be filed with the petition for the writ, and no writ can be allowed until the assignment has been filed. The form of assign- 1662-1663, Ch. 75 MANUAL OP FEDERAL PROCEDURE. 602 ment suggested 1662 below, will suffice as a guide for the assign- ment upon error. The assignment of errors on appeal differs from the petition for appeal in that it must set out specifically and directly every re- spect in which the decree is erroneous and the reason why it is so ; while the petition asks for the allowance of the appeal in general terms. The assignment of errors must be so complete and clear that the court may obtain therefrom a specific statement of the ques- tion presented without reference to the brief or any other source outside of the assignment itself. (Van Gunden v. Virginia Coal & Iron Co., 52 Fed. 838, 3 C. C. A. 294; Grape Creek Coal Co. v. Farmers' Loan & Trust Co., 63 Fed. 891, 12 C. C. A. 350.) 1662. Form of Assignment of Errors. [Title of Cause.] [Title of Trial Court.] In Equity No. . ASSIGNMENT or ERRORS. Now comes the defendant in the above-entitled cause and files the follow- ing assignment of errors upon which he will rely upon his prosecution of the appeal in the above-entitled cause, from the decree made by this honorable court on the day of , 19 . I. That the United States district court for the district of erred in overruling the demurrer interposed by the defendant and appellant to the original complaint filed in the cause. II. [State in separate paragraphs each error complained of.] Wherefore the appellant pray that said decree be reversed and that said district court for the district of be ordered to enter a decree reversing the decision of the lower court in said cause. , Attorneys for Appellant. 1663. Citation. Except in cases of appeals allowed in open court at the term during which the decree appealed from was rendered, a citation returnable at the same term with the appeal 603 APPEAL AND ERROR. Ch. 75, 1663 or writ of error is necessary to perfect jurisdiction of the appeal or writ of error, unless waived. (Jacobs v. George, 150 U. S. 415, 37 L. Ed. 1127, 14 Sup. Ct. 159; Hewitt v. Filbert, 116 U. S. 142, 29 L. Ed. 581, 6 Sup. Ct. 319 ; West v. Irwin, 54 Fed. 419, 4 C. C. A. 401.) 999, Rev. Stats. "When the writ is issued by the Su- preme Court to a circuit 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; and when it is issued by "the Supreme Court to a state court, the citation shall be signed by the chief justice or judge, or chancellor of such court, rendering the judgment or passing the decree complained of, or by a justice of the Supreme Court of the United States, and the adverse party shall have at least thirty days' notice." (6 Fed. Stats. Ann., 2d ed., p. 184; '3 U. S. Comp. Stats. 1916, 1659, p. 3316.) ) 998, Rev. Stats. "When the writ is issued by a circuit court to a district court, the citation shall be signed by the judge of such district court, or by the circuit judge of such circuit court, or by a justice of the Supreme Court, and the adverse party shall have at least twenty days' notice." (6 Fed. Stats. Ann., 2d ed., p. 183; 3 U. S. Comp. Stats. 1916, 1658, p. 3312.) This citation is a formal notice of the allowance of an appeal, is intended only for the purpose of notice, is not jurisdictional, and may be waived or substituted by proof of other equivalent notice. (Farmers' Loan & Trust Co. v. Chicago & N. R. R. Co., 73 Fed. 317, 19 C. C. A. 477 ; Dayton v. Lash, 94 U. S. 112, 24 L. Ed. 33 ; Grigsby v. Purcell, 99 U. S. 505, 25 L. Ed. 354 ; Chicago etc. R. Co. v. Blair, 100 U. S. 661, 25 L. Ed. 587 ; Jacobs v. George, 150 U. S. 415, 37 L. Ed. 1127, 14 Sup. Ct. 159.) A distinction is drawn, however, between citation on appeal and upon error, in that notice in open court, in the former, excuses the issuance of the citation, while in the latter it does not. (United States v. Phillips, 121 U. S. 254, 30 L. Ed. 914, 7 Sup. Ct. 874; Loveless v. Ransom, 109 Fed. 391, 48 C. C. A. 434.) 1664, Ch. 75 MANUAL OP FEDERAL PROCEDURE. 604 The citation should be signed as prescribed by 998-999, Rev. Stats., but failure to sign is immaterial if the defendant in error enter his appearance. (Freeman v. Clay, 48 Fed. 849, 1 C. C. A. 115.) No particular form of citation is required by statute, but, in the absence of a printed form supplied by the court from which the appeal is taken, the following is suggested : [Title of Trial Court.] In Equity No. . [Title of Cause.] CITATION ON APPEAL. United States of America, ss. To and , Greeting: You are hereby cited and admonished to be and appear at the Supreme Court of the United States, to be held at the city of Washington, in the District of Columbia, on the day of , A. D. 19 , pursuant to an order allowing an appeal filed and entered in the clerk's office of the dis- trict court of the United States for the district of . from a final decree signed, filed, and entered on the day of , 19 , in that certain suit, being in equity No. , wherein is plaintiff and you are defendant and appellee, to show cause, if any there be, why the decree rendered against the said appellant, as in said order allowing appeal men- tioned, should not be corrected and why justice should not be done to the parties in that behalf. Witness the Honorable , United States District Judge for the District of , this day of , 19 , and of the Independence of the United States . > U. S. District Judge for the District of . The citation must be served personally upon the attorney of record, or the party who recovers judgment, the return being made according to the rule of court governing the service of cita- tions. (Supreme Court Rule 8, C. C. A. Rule 14.) 1664. Bond. The petition having been filed, accompanied by the assignment of errors, a bond is required of the appellant payable to the appellee, conditioned as provided in the following quoted section: 605 APPEAL AND ERROR. Ch. 75, 1664 1000. Rev. Stats. " 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 super- sedeas as aforesaid." (6 Fed. Stats. Ann., 2d ed., p. 187; 3 U. S. Comp. Stats. 1916, 1660.) The text and form suggested below apply as well to error pro- ceedings with such changes in phraseology as may be necessary to adapt it. This bond must be approved before the appeal is perfected, but it is not jurisdictional, and if not given at the time when the appeal is taken, the failure to do so constitutes a mere irregu- larity which may be cured by the Supreme Court allowing the appellant to file the proper bond within a reasonable time. (Brown v. McConnel, 124 U. S. 489, 31 L. Ed. 495, 8 Sup. Ct. 559 ; Schenck v. Diamond Match Co., 73 Fed. 22, 19 C. C. A. 352 ; Anson v. Blue Ridge R. R. Co., 23 How. 1, 16 L. Ed. 517 ; Davidson v. Lanier, 4 Wall. 447, 18 L. Ed. 377 ; Seymour v. Freer, 5 Wall. 822, 18 L. Ed. 564.) In accordance with this rule a bond furnished one month after the appeal is taken has been held to be furnished within a reason- able time. (Schenck v. Diamond Match Co., 73 Fed. 22, 19' C. C. A. 352.) A lapse of four years where permission to supply the bond has never been asked has been held to constitute ground for 'dismissal of appeal. (Beardsley v. Arkansas & L. R. R. Co., 158 U. S. 123, 39 L. Ed. 919, 15 Sup. Ct. 786.) Not being jurisdictional, bond may be waived by the appellees. (Kingsbury v. Buckner, 134 U. S. 650, 33 L. Ed. 1047, 10 Sup. Ct. 638.) The sufficiency of the security is discretionary with the trial judge, and he may, within his discretion, accept a bond signed by 1664, Ch. 75 MANUAL OF FEDERAL PROCEDURE. 606 any number of sureties, or one in which they are either jointly and severally or jointly or severally bound, or one in which each surety is only bound severally for a specified part of the security. (New Orleans Ins. Co. v. Albro Co., 112 U. S. 506, 28 L. Ed. 809, 5 Sup. Ct. 289.) The security required upon appeal must be taken by the justice or judge signing the citation. He cannot delegate this power to, the clerk. (Freeman v. Clay, 48 Fed. 849, 1 C. C. A. 115 ; O'Reilly v. Edrington, 96 U. S. 724, 24 L. Ed. 659; Martin v. Hunter's Lessee, 1 Wheat. 361, 4 L. Ed. Ill ; Haskins v. St. L. & E. R. R. Co., 109 U. S. 106, 27 L. Ed. 873, 3 Sup. Ct. 72.) But if he should do so, the appeal will not usually be dismissed, but opportunity will be afforded the appellant to secure a bond properly approved by the judge. (Cases last cited above.) All obligees should be individually named in the bond to insure certainty, but the fact that they are not, as where it is made payable to John Smith et al., will not be considered grounds for the dismissal of the appeal, and opportunity will be given to file a proper bond. (Swift & Co. v. Kortrecht, 110 Fed. 328, 49 C. C. A. 68.) On the other hand, if others besides the party from whom the decree appealed from is taken are named as obligees in the bond, its validity is not thereby affected. (Hill v. Chicago & E. Ry. Co., 129 U. S. 170, 32 L. Ed. 651, 9 Sup. Ct. 269.) The bond may be in 1 the following form : [Title of Trial Court.] In Equity No. *-. [Title of Cause.] BOND ON APPEAL. Know all men by these presents, that we, , as principal, and and , as sureties, of the county of , state of , are held and firmly bound unto in the sum of $ , lawful money of the United States, to be paid to them and their respective executors, administrators and successors; to which payment, well and truly to be made, we bind ourselves and each of us, jointly and severally, and each of our heirs, executors, and administrators, by these presents. Sealed with our seals and dated this day of , 19 . 607 APPEAL AND ERROR. Cll. 75, 1GG5 Whereas the above-named , has prosecuted a writ of error to the Supreme Court of the United States to reverse the judgment of the district court for the district of , in the above-entitled cause: Now, therefore, the condition of this obligation is such that if the above-named shall prosecute his said appeal to effect and answer all costs if he fail to make good his plea, then this obligation shall be void; otherwise to remain in full force and effect. State of , County of On the day of , 19 , personally appeared before me and , respectively known to me to be the persons described in and who duly executed the foregoing instrument as parties thereto, and respectively acknowledged, each for himself, that they executed the same as their free act and deed for the purposes therein set forth. And the said and , being respectively by me duly sworn, says, each for himself and not one for the other, that he is a resident and house- holder of the said county of and that he is worth the sum of $ over and above his just debts and legal liability and property exempt from execution. Subscribed and sworn to before me this day of , A. D. 19 . [Seal] , Notary Public. The within bond is approved both as to sufficiency and form this day of , 19. , , Justice. 'l 1665. No Bond Required of United States. 1001, Rev. Stats. "Whenever a writ of error, appeal, or other process in law, admiralty, or equity issues from or is brought up to the Supreme Court or a circuit court, either by the United States or by direction of any department of the government, no bond, obligation, or security shall be re- quired from the United States, or from any party acting under the direction aforesaid, either to prosecute said suit or to answer in damages or costs. In case of an adverse decision, 1666, Ch. 75 MANUAL OF FEDERAL PROCEDURE. . 608 such costs as by law are taxable against the United States, or against the party acting by direction as aforesaid, shall be paid out of the contingent fund of the department under whose directions the proceedings were instituted." (6 Fed. Stats. Ann., 2d ed., p. 192 ; 3 U. S. Comp. Stats. 1916, 1661.) 1666. Supersedes. 1007, Rev. Stats. "In any case where a writ of error may be a supersedeas, the defendant may obtain such super- sedeas by serving the writ of (or) 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 required by law on the issuing of the citation. But if he desires to stay process on the judgment, he may, having served his writ of error as aforesaid, give the security required by law within sixty days after the rendition of such judgment 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, executions shall not issue until the expiration of ten days." (6 Fed. Stats. Ann., 2d ed., p. 198; 3 U. S. Comp. Stats. 1916, 1666.) See also Rule 29, Supreme Court, and Rules C. C. A., in our i , Appendix. Under this section, which applies alike to appeals and writs of error, it is held that supersedeas, if applied for in strict com- pliance with the statute, is a matter of right. (McCourt v. Singers- Bigger, 150 Fed.. 102, 80 C. C. A. 56.) No discretion is vested in the judge, othe'r than as to the amount of the bond, except in appeals from injunction, where the granting of a supersedeas is discretionary under 129, Jud. Code ( 1502, supra} . Strict compliance with the statute is required, however; for supersedeas is purely a statutory remedy, and unless the pre- scribed steps are taken within sixty days, Sundays excluded, from the rendering of the decree, it is not within the power of the court to award a supersedeas, although the bond required may be given 609 APPEAL AND ERROR. Ch. 75, 1GG6 after that time, with the permission of the appellate court. (Sage v. Cent. Ry. Co., 93 U. S. 417, 23 L. Ed. 935; New England R. Co. v. Hyde, 101 Fed. 398, 41 C. C. A. 404.) Commenting upon the clause extending the time for giving the bond, the Supreme Court says in the case of Kitchen v. Randolph, 93 U. S. 86, 23 L. Ed. 810: "Had the section stopped here [the first clause] a plaintiff in error or appellant would have been compelled to elect, when he sued out his writ of error or took his appeal, whether he would have a supersedeas or not ; because it is* made one of the conditions of the stay of proceedings that the requisite security shall be given, upon the issuing of the citation. Hav- ing once made his election, he would be concluded by what he had done. But Congress foreseeing, undoubtedly, that cases might arise in which serious loss would result from such a rule, went further, and, in a subsequent part of the section, provided that if a writ of error had been served, as required in the first paragraph, a stay might be had as a matter of right by giving the required security within sixty days, and afterwards, as a matter of favor, if permission could be ob- tained from the designated justice or judge. Thus prompt action in respect to the writ was required and indulgence granted only as to the security." The supersedeas order may be incorporated in the bond, or it may be in the form of a separate order as follows: [Title of Trial Court.] [Title of Cause.] SUPERSEDEAS ORDER. This cause coming on to be heard this day of 19 , upon the application of the appellant for an appeal to the Supreme Court of the United States, and said appeal having been allowed, it is ordered that the same shall operate as a supersedeas, the said appellant having executed bonds in the sum of $ as provided by law, and the clerk is hereby directed to stay the mandate of the district court of the district of , until the further order of this court. , Justice. Manual 89 1667-1668, Ch. 75 MANUAL OP FEDERAL PROCEDURE. 610 The effect of a supersedeas is to hold in abeyance all proceed- ings in the court below, until the decree is affirmed. (Ransom v. Pierre, 101 Fed. 669, 41 C. C. A. 585 ; Hovey v. McDonald, 109 U. S. 150, 27 L. Ed. 888, 3 Sup. Ct. 136.) 1667. Injunction Pending Appeal. Equity Rule 74. "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 injunc- tion 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." (3 U. S. Comp. Stats. 1916, 1536, p. 2527; Simkins' Federal Equity Suit, 3d ed., p. 629.) 1668. Proceedings in Forma Pauperis. Since the enactment of the act June 25, 1910, c. 435, amending the act of July 20, 1892, c. 209 (quoted 404, supra), the Supreme Court holds that the statute applies to appellate proceedings, writs of error or appeals. In Kinney v. Plymouth Rock Squab Co., 236 U. S. 43, 59 L. Ed. 457, at p. 458 (35 Sup. Ct. 236), the court says: "Clarifying the 1st section as amended by these considera- tions, it becomes clear that the sole change operated by the amendment was to bring defendants within the statute, and to extend its provisions so as to embrace, first, proceedings on application for the allowance of a writ of error or appeal to this court and the circuit court of appeals, second, the appellate proceedings in such courts. This being true, it is clear that as to the new subjects, the allowance of the right in those cases was made to depend upon the exercise of the same discretion as to the meritorious character of the cause to the same extent provided under the statute before amendment. That is to say, there is no ground for a contention that at one and the same time the statute brought certain proceedings within its scope and yet exempted them from its operation. Indeed, this conclusion is not alone sustained by the implica- 611 APPEAL AND ERROR. Ch: 75, 1669 tion resulting from the fact that the safeguards provided for the exercise of the authority found in the statute as originally enacted were not changed by the amendment, but further plainly results from the express provisions of the amended section (46) manifesting the purpose to subject the granting of the right in both the new instances provided for, to the exercise of the judicial discretion to determine the poverty, and good faith of the applicant and the meritorious character of the cause in which the relief was asked." 1669. Record on Error. 997, Rev. Stats. "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 record, an assignment of errors, and a prayer for reversal, with a citation to the adverse party." (6 Fed. Stats. Ann., 2d ed., p. 163; 3 U. S. Comp. Stats. 1916, 1653.) In addition to this section, the contents of the transcript on error, like that on appeal, is governed by Supreme Court Rule 8, and Circuit Court of Appeals Rules 14 and 15 (Appendix, post). The complete record upon a writ of error taken from a judg- ment at law consists of the following papers and proceedings: The complaint or declaration; the subpoena properly indorsed with the marshal's return; the defensive pleading and joining of issue; proceedings in impaneling the jury, verdict of the jury; judgment of the court; bill of exceptions; petition for writ of error; assignment of errors; order allowing the writ of error; the writ of error; the citation; the bond, and the certificate of the clerk authenticating the record. It is not always necessary that all the documents enumerated be incorporated in the transcript, and the better practice is a stipu- lation between counsel, agreeing as to the contents of the record. If this cannot be done, it is the duty of the clerk to make up the record in accordance with a precipe filed by the plaintiff in error. The instructions prepared by the circuit courts of appeals of the fourth and eighth circuits (Appendix, post) will be found to be of use to the practitioner. 1669a, Ch. 75 MANUAL OF FEDERAL PROCEDURE. 612 It is to be noted that by the terms of 997, Rev. Stats, supra, the transcript is to be annexed to and returned with the original writ of error, and must be authenticated. The clerk's certificate of authentication may be in substantially the following form: [Title of Court.] [Title of Cause.] CERTIFICATE OP TRANSCRIPT. I, , Clerk of the : Court, etc., hereby certify the foregoing tran- script, consisting of pages constitutes a full, true and correct copy of the proceedings had and orders entered in the above-entitled cause, as set forth therein, as the same appears on file and of record in this office, with the exception of the writ of error, the citation," and assignment of error! herewith attached, at pages , , and , respectively, which are the original writ, assignment and citation. The foregoing constitutes the entire transcript in the cause. Witness my hand and the efficial seal of said Court, this day of , A. D. 19. , Clerk. V 1669a. Transcript on Appeal and Error. Part Supreme Court Rule 8. "I. 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. . . . "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, con- taining 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 appeal, such presiding judge may make such rule or order for the safe-keeping, transporting, and return of such original 613 APPEAL AND ERROR. Ch. 75, 1669a papers as to him may seem proper, and this court will receive and consider such original papers in connection with the tran- script of the proceedings." (-2 U. S. Comp. Stats. 1916, p. 1812.) See also Rule 14, Circuit Court of Appeals, in Appendix. 698, Rev. Stats. "Upon the appeal of any cause in equity, or of admiralty and maritime jurisdiction, or of prize or no prize, a transcript of the record, as directed by law to be made, and copies of the proofs, and of such entries and papers on file as may .be necessary on the hearing of the appeal, shall be transmitted to the Supreme Court: Provided, That either the court below or the Supreme Court may order any original document or other evidence to be sent up, in addition to the copy of the record, or in lieu of a copy of a part thereof. And on such appeals no new evidence shall be received in the Supreme Court, except in admiralty and prize causes." (6 Fed. Stats. Ann., 2d ed., p. 174; 3 U. S. Comp. Stats. 1916, 1654.) Record on appeal as made up by the clerk of the lower court if complete contains the following papers and proceedings: The bill of complaint; process or subpoena, with the proper return of the marshal indorsed thereon ; the answer or other defensive plead- ing; the testimony, exhibits, etc., of both parties, plaintiff and defendant; the opinion and decree of the court; the petition for appeal; the assignment of error; bond on appeal; the citation on appeal and the clerk's certificate. (See instruction for prepara- tion of record contained in Rules of C. C. A. after Rule 38, 4th Circuit, and Rule 45, 8th Circuit, Appendix, post.) It is not always necessary, however, that all of these papers and proceedings are necessary for a hearing of the appeal, and therefore it may be stipulated by counsel for the opposing party that certain proceedings may be omitted from the record. If, when the record reaches the appellate court, anything has been omitted therefrom which is considered necessary for a hear- ing of the appeal, the proper procedure is for counsel to suggest to the appellate court a diminution of the record, whereupon the 1670, Ch. 75 MANUAL OP FEDERAL PROCEDURE. 614 omitted portion will, if considered necessary by the court, be ordered sent up. 1670. Reduction and Preparation of Record on Appeal and Error to Supreme Court. Part Supreme Court Rule 8, Subd. 1. "In order to enable the clerk of the court (to which any writ of error may be directed) to perform such duty (i. e., transmitting copy of the record), and 'for the purpose of reducing the size of tran- scripts of records in cases brought to this court by appeal or writ of error, by eliminating all papers not necessary to the consideration of questions to be reviewed, it shall be the duty of the appellant or plaintiff in error, or his attorney, to file with the clerk of the lower court, together with proof or acknowledgment of service of a copy on the appellee or de- fendant in error, or his counsel, a precipe, which shall indi- cate 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 incorporated into the transcript of the record to be filed in this court, he shall file with the clerk of the lower court his precipe also, within ten days thereafter (unless the time shall be enlarged by a judge of the lower court), indicating such additional 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 pro- vided. "The parties or their counsel, however, may agree, by writ- ten stipulation to be filed with the clerk of the lower court, the portions of the record which shall constitute the transcript of record on appeal, or writ of error, and the clerk in such case shall transmit only the papers designated in such stipu- lation. ' ' If this court shall find that portions of the record unneces- sary to a proper presentation of the case have been incorpo- rated 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 U. S. Comp. Stats. 1916, p. 1812.) 615 APPEAL AND ERROR. Ch. 75, 1671 1671. Reduction and Preparation of Record Under New Equity Rules. Equity Ride 75. "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 with proof or acknowledgment of service of a copy on the appellee or his solicitor, a prccipe 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 precipc 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 con- densed form, all parts not essential to the decision of the questions presented by the appeal being omitted and the testi- mony 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 reproduced 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 precipe 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 to approve 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. 1671, Ch. 75 MANUAL OF FEDERAL PROCEDURE. GIG " (c) If any difference arise between the parties concern- ing directions 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 direc- tions which the court or judge may give on the subject." (3 U. S. Comp. Stats. 1916, p. 2527; Foster's Federal Prac- tice, 5th ed., 704, p. 2499; Simkins' Federal Equity Suit, 3d ed., (a), pp. 707, 708, (b) p. 708, (c) p. 708.) Equity Rule 76. "In preparing the transcript on an ap- peal, 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 exhibits, documents and other papers included therein; and for any infraction of this or any kindred rule the appellate court may withhold or im- pose costs as the circumstances of the case and the discourage- ment 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 omis- sion be corrected by a supplemental transcript." (3 U. S. Comp. Stats. 1916, 1536, p. 2529.) Equity Rule 77. "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 judge thereof, may prepare and sign a statement of the case showing how the questions arose and were decided in the district court and setting forth so much only of the facts alleged and proved, or sought to be proved, as is essential to a decision of such questions by the appellate court. Such statement, when filed in the office of the. clerk of the district court, shall be treated as superseding, for the purposes of the appeal, all parts of the record other than the decree from which the appeal is taken, and, together with such decree, shall be copied and certified to the appellate court as the record on appeal." (3 U. S. Comp. Stats. 1916, '1536, p. 2529.) 617 APPEAL AND ERROR. Ch. 75, 1671 Construction ~by Circuit Court of Appeals. Per Curiam. "Motions recently decided and others now pending involv- ing these rules justify a formal statement of our conclusions. "Rule 75 fixes no time within which the statement of evi- dence must be settled and filed in order to ' become a part of the record for the purposes of the appeal.' Undoubtedly, the better practice is to complete this step before claiming, or, at least, before perfecting the appeal, and if the term expires before the final statement of evidence is filed, to enter an order carrying this matter into the next term: but where appeals are required within thirty days, or even within ten days, the time may be wholly insufficient to perfect the record in this respect, and the expiration of the term may very commonly be forgotten, particularly as it has never been a matter of importance in equity appeals. It is said that the completing of this statement of evidence corresponds to the settling of a bill of exceptions at law, and the familiar rule is invoked that a purported bill of exceptions which was not settled within the trial term or pursuant to a reservation during the trial term is a nullity and will be stricken from the record. We are not satisfied that the analogy is close enough to justify the incorporation of this harsh rule into the practice pursuant to Rule 75, which must have been adopted with due considera- tion of the existing practice by which appeals were claimed and perfected regardless of the expiration of terms; and we conclude that the trial court has power to approve and direct the filing of the statement of evidence, although the term has expired when the decree was rendered, and although no order was entered carrying the subject matter over until the next term. "The same general view leads also to the conclusion that the perfecting of an appeal by the approval of a' bond and the signing of citation does not deprive the trial court of juris- diction to settle the evidence. It is true that for general pur- poses, jurisdiction over the cause is thereby ended, and that the shaping of this statement of evidence involves the decision by the judge of disputed claims; but, upon the whole, the proceeding is rather ministerial, and it sufficiently pertains to the making of the return to the appeal, so that we think a statement of evidence so approved and filed cannot, for that reason alone, be stricken from the record. 1671, Ch. 75 MANUAL OP FEDERAL PROCEDURE. 613 "Instances occur where Rule 75 is wholly disregarded, and the return to the appeal includes the evidence in full, in accordance with the old practice, and we are asked to dismiss appeals where the record is so made up, or to strike out the statement of evidence, thereby leading to an affirmance. To send the record back for correction in this respect involves delay and the exercise of uncertain power; while to dismiss the appeal or to strike all the evidence from the record may cause the loss of substantial rights through the blunder in practice by counsel. This drastic remedy may prove to be necessary in some cases, but we are reluctant to apply it now. The enforcement of both rules rests, primarily, upon the dis- trict judges, whose obligation we pointed out in Pittsburgh, C. C. & St. L. R. Co. v. Glinn, 208 Fed. 989, 126 C. C. A. 77, and we have no doubt that they will observe the new practice when approving a statement of evidence or bill of exceptions ; but in equity appeals, if counsel overlook the rule and follow the old practice, the matter may not come to the attention of the trial judge. If such cases occur, the clerk who makes return to the appeal should not include the evidence in full, and his due attention will usually prevent informality in this respect. In those instances, however, where the record reaches this court containing the evidence in full, we think general Equity Rule 76 provides a remedy which, at least during the transition in the general practice, will be sufficient. The reference in Rule 76 to 'any kindred rule' quite clearly ap- plied to Rule 75. It is true that the offending solicitor in this situation is the solicitor for appellant, and that appel- lant pays, in the first instance, the entire cost of printing, so that if he is unsuccessful in this court, no disposition of the costs of printing can operate as a penalty, but if he is success- ful, he can be denied the recovery of such costs ;j,and the fur- ther affirmative costs, contemplated by Rule 76, might, in a proper case, be imposed upon the offending solicitors." (222 Fed. 884 et seq. ; 3 U. S. Comp. Stats. 1916, 1536, p. 2528.) As to Narrative Form of Statement. In United States v. Motion Picture Patents Co., 230 Fed. 541, the court held that the district court could not approve a tran- script of the record for transmission to the Supreme Court with- 619 APPEAL AND ERROR. Ch. 75, 1671 out the statement in narrative form required by Rule 75, unless leave to omit such statement was obtained from the Supreme Court, as it would be an evasion of the duty imposed on the district court to apply the exception contained in the rule as to setting forth parts of the testimony in full to the whole testimony. See, also, Louisville & N. R. Co. v. United States, 238 U. S. 1, 10, 59 L. Ed. 1177, 1180, 35 Sup. Ct. 696. Deportation Proceedings. On an appeal in deportation proceedings the evidence should be brought up by a certificate of the evidence under Equity Rule 75, rather than by a common-law bill of exceptions. (Wong Keow v. United States (7th Cir.), 215 Fed. 95, 131 C. C. A. 403.) Illustration of Statement of Evidence Under Rule To. United States District Court, Southern District of California, Southern Division. In Equity No. . K. Company, Plaintiff, v. ^- STATEMENT or EVIDENCE UNDER EQUITY RULE 75. Frank Doe et al., Defendants. Plaintiff offered in evidence copy of letters patent No. , dated , 19, as "Plaintiff's Exhibit 1." It was stipulated that plaintiff was and is a corporation as alleged in the bill of complaint. Testimony of K., for Plaintiff. K., called on behalf of plaintiff, duly sworn, testifies: I am 38 years of age, reside in , Cal., and a manufacturer of irriga- tion appliances for sixteen years past; I am the inventor named in "Plain- tiff's Exhibit 1" [etc.]. This making of cement joints is not a new thing, no, not very new; I have been at it for the last ten years. As to the holding power of cement on iron for ordinary pressure, it is all right; it is good; we made cement joints eight or nine years ago, and they are still in the ground yet. 1672, Ch. 75 MANUAL OF FEDERAL PROCEDURE. 620 On Cross-examination. On our cast-iron pipe ends there is generally a bead, and the other end is a bell and spigot end. There is what we call a "lead lock." Inside the bell there is a sort of groove running around on the inside of the bell, a groove that lead will run into. I cannot remember any particular place within the last eight or ten years where this construction was used [etc.]. Q. Did you ever put a valve with a flange shape like that on the end of a pipe? [Indicating device.] A. How do you mean? This would be on the valve, do you meant Q. Yes, put your pipe on the inside here, have a flange in this shape. A. No, I never did. Q. Would you think that would hold if it were placed on the end of a pipe and filled in with cement here a half an inch thick? Q. (By the Court.) Do you think it would hold under pressure? A. Well, your Honor, it would depend how much pressure would be on that, pipe. There is an awful short space there for material to hold there. . . . 1672. Printing and Filing 1 of Record on Appeal and Error to Circuit Courts of Appeal. Paragraph 1, Act. Feb. 13, 1911, c. 147. "That in any cause or proceeding wherein the final judgment or decree is sought to be reviewed on appeal to, or writ of error from, a United States circuit court of appeals the appellant or plain- tiff in error shall cause to be printed under such rules as the lower court shall prescribe, and shall file in the office of the clerk of such circuit court of appeals at least twenty days before the case is called for argument therein, at least twenty-five printed transcripts of the record of the lower court, and of such part or abstract of the proofs as the rules of such circuit court of appeals may require, and in such form as the Supreme Court of the United States shall by rule prescribe, one of which printed transcripts shall be cer- tified under the hand of the clerk of the lower court and under the seal . thereof, and shall furnish three copies of such printed transcript to the adverse party at least twenty days before such argument: Provided, That either the court below or the circuit court of appeals may order any original document or other evidence to be sent up in addition to the printed copies of the record or in lieu of printed copies of a part thereof; and no written or typewritten transcript of the .record shall be required." (6 Fed. Stats. Ann., 2d ed., p. 180; 3 U. S. Comp. Stats. 1916, 1656.) 621 APPEAL AND EEROR. Ch. 75, 1673-1674 1673. Printing and Filing of Record on Appeal and Error to Supreme Court Use of Record in Circuit Court of Appeals as Part of Transcript. Paragraph 2, Act Feb. 13, 1911, c. 47. "That in any cause or proceeding wherein the final judgment or decree is sought to be reviewed on appeal to or by writ of error or of certiorari from the Supreme Court of the United States, in which the record has been printed and used upon the hearing in the court below and which substantially conforms to the printed record in said Supreme Court, if there have been at the time of filing the record in the court below twenty- five copies of said printed record, in addition to those pro- vided in the preceding section, lodged with the clerk of the court below, one copy thereof shall be used by the clerk of the court below in the preparation and as a part of the tran- script of the record of the court below ; and no fee shall be allowed the clerk of the court below in the preparation of the transcript for such part thereof as is included in said printed record so lodged with him. And the clerk of the court below, in transmitting the transcript of record to the Supreme Court of the United States for review, shall at the same time transmit the remaining uncertified copies of the printed record so lodged with him, which shall be used in the preparation and as a part of the printed record in the Supreme Court of the United States, and the clerk's fee for preparing the record for the printer, indexing the same, supervising the printing, and binding and distributing the copies, shall be at such rate per folio thereof, exclusive of the printed record so furnished by the clerk of the court below, as the Supreme Court of the United States may from time to time by rule prescribe ; and no written or typewritten transcript of so much of the record as shall have been printed as herein provided shall be required." (36 Stats. 901; 6 Fed. Stats. Ann., 2d ed., p. 182; 3 U. S. Comp. Stats. 1916, 1657.) 1674. One Record Sufficient When Both Parties Appeal to Supreme Court Direct. 1013, Rev. Stats. "Where appeal is duly taken by both parties from the judgment or decree of a circuit or district court to the Supreme Court, a transcript of the record filed in 1675-1676, Ch. 75 MANUAL OP FEDERAL PROCEDURE. 622 the Supreme Court by either appellant may be used on both appeals, and both shall be heard thereon in the same manner as if records had been filed by the appellants in both cases." (6 Fed. Stats. Ann., 2d ed., p. 180; 3 U. S. Comp. Stats. 1916, 1655.) 1675. Time for Return of Appeals and Writs of Error. Supreme Court Rule 8, Subd. 5. "All appeals, writs of error, and citations must be made returnable 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, Montana, Arizona, 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 twenty days." (2 U. S. Comp. Stats. 1916, p. 1813.) C. C. A. Rule 14, Subd. 5. "All appeals, writs of error, and citations must be made returnable not exceeding thirty days from the day of signing the citation, whether the re- turn day fall in vacation or in term time, and be served before the return day." (2 U. S. Comp. Stats. 1916, p. 1294.) 1676. Summary of Procedure on Appeal and Error. In all appeals, whether from the district courts to the circuit courts of appeal, or from the district courts direct to the Supreme Court, or from the circuit courts of appeal to the Supreme Court in those cases where such appeals may be taken, the following steps must be taken in order to get the record into the appellate court : First. Except in cases of appeal allowed in open court or writs of error taken and allowed in open court at the term during which judgment was rendered at the time when the decree appealed from was rendered, a petition for appeal (or writ of error) in writing must be addressed to the lower court, or, if in vacation, to the judge thereof. Second. With, this petition there must be filed an assignment of errors. 623 APPEAL AND ERROR. Ch. 75, 1 Third. The allowance of the appeal must be indorsed upon the petition by the justice or judge of the lower court, or a separate order allowing the appeal or the order allowing the writ of error must be signed by him. Fourth. Before the appeal can be perfected a satisfactory bond on appeal must be furnished by the appellant, which bond may act as a supersedeas if desired. This bond may be given either at the time when the appeal is allowed, or within a reasonable time thereafter, and must be approved by the justice or judge allowing the appeal, and by no one else. The same applies to writs of error. Fifth. The citation or notfce of appeal, in cases where it is required, must be signed by the judge and served upon the appellee. So, also, as to allowance of the writ of error. Sixth. The writ of error must be issued either by the clerk of the district court, the circuit court of appeals, or the Supreme Court, as the case may be. All of these papers and proceedings are filed with the clerk of the court; below, and constitute a part of the record on appeal. 1677. Review of Final Decisions of Circuit Courts of Appeals upon Certiorari. Part 240, Jud. Code. "In any case, civil or criminal, in which the judgment or decree of a circuit court of appeals is made final by the provisions of this title, it shall be compe- tent for the Supreme Court to require, by certiorari or other- wise, upon the petition of any party thereto, any such case to be certified to the Supreme Court for its review and de- termination with the same power and authority in the case as if it had been carried by appeal or writ of error to the Supreme Court." (36 Stats. 1157; 5 Fed. Stats. Ann., 2d ed., p. 854; 2 U. S. Comp. Stats. 1916, 1217.) See, also, 4, Act Jan. 28, 1915, c. 22, as amended 3, Act Sept. 6, 1916, c. 448, 38 Stats. 804, 39 Stats. 727, 5 Fed. Stats. Ann., 2d ed., p. 608, in note to 128, Jud. Code; 2 U. S. Comp. Stats. 1916, 1120a, pp. 1443, 1444, 1677, Ch. 75 MANUAL or FEDERAL PROCEDURE. 624 Instructions as to applications for writs of certiorari under acts of March 3, 1891, and Sept. 6, 1916, by Honorable James D. Maher, Clerk of the Supreme Court of the United States, may be found in our Appendix immediately preceding the Supreme Court Rules. The following forms are suggested : [Title of Court.] [Title of Cause.] PETITION FOE WRIT OP CERTIORAM. To the Honorable the Supreme Court of the United States: The petition of respectfully shows to this honorable court [here state facts and proceedings numbered in separate paragraphs leading to and includ- ing the decree of the circuit court of appeals]. A certified copy of the entire record of said case in the said circuit court of appeals is hereby furnished, attached to and made a part of this application and marked exhibit "A" in compliance with Rule 37 of this honorable court. Your petitioner is advised and believes that the said judgment of the United States circuit court of appeals in said case is erroneous, and that this honorable court should require the said case to be certified to it for its review and deter- mination in conformity with the provision in 240, Judicial Code, said case being made final in said circuit court of appeals by the provision in 128, Judi- cial Code. The said ease was decided in said circuit court of appeals [here set forth argument advanced against the decision of the circuit court of appeals and the reasons why it should be reviewed by the Supreme Court]. Wherefore your petitioner respectfully prays that a writ of certiorari may be issued out of and under the seal of this court, directed to the United States circuit court of appeals for the circuit, commanding the said court to certify and send to this court, on a day certain to be therein designated, a full and complete transcript of the record and all proceedings of the said circuit court' of appeals in the said case, entitled v. , No. , to the end that the said case may be reviewed and determined by this court as provided by section 240, Judicial Code, or that your petitioner may have such other or further relief or remedy in the premises as this court may deem appropriate and in conformity with said provision of the Judicial Code and that the said judgment of the said circuit court of appeals in the said case and every part thereof may be reversed by this Honorable Court. -, Petitioner. [Verification.] 625 APPEAL AND ERROR. Ch. 75, 1678 [Title of Court.] [Title of Cause.] WRIT OF' CERTIORAM. United States of America, ss. The President of the United States of America, to the Honorable Judges of the United States Circuit Court for the Circuit, Greeting: Being informed that there is now pending before you a suit in which is appellant [or plaintiff in error] and is appellee [or defendant in error], which suit was removed to said circuit court of appeals by virtue of an appeal [or a writ of error] from the district court of the United States for the district of ; and we being willing for certain reasons, that the said cause and the record and proceedings therein should be certified by said circuit court of appeals and removed into the Supreme Court of the United States, do hereby command you that you send without delay to the said Supreme Court, as afore- said, the record and proceedings in said cause, so that the said Supreme Court may act thereon as of right and according to law ought to be done. Witness the Honorable , Chief Justice of the Supreme Court of the United States. , Clerk of the Supreme Court. 1678. Certification by Circuit Courts of Appeals to Supreme Court. * Part 239, Jud. Code. "In any case within its appellate jurisdiction . . . the circuit court of appeals at any time may certify to the Supreme Court of the United States any ques- tions or propositions of law concerning which it desires the instruction of that court for its proper decision; and there- upon the Supreme Court may either give its instruction on 'the questions and propositions certified to it, which shall be bind- ing upon the circuit court of appeals in such case, or it may require that the whole record and cause be sent up to it for its consideration, and thereupon shall decide the whole matter in controversy in the same manner as if it had been brought there for review by writ of error or appeal." (36 Stats. 1157 ; 5 Fed. Stats. Ann., 2d ed., p. 838 ; 2 U. S. Comp. Stats. 1916, 1216; Foster's Federal Practice, 5th ed., p. 2378; Simkins' Federal Equity Suit, 3d ed., pp. 735, 737.) T - H In view of the final clause of the section above quoted, the only difference in procedure upon a review of this class of cases is in Manual 40 1679, Ch. 75 MANUAL OF FEDERAL PROCEDURE. 626 the manner of getting the questions before the Supreme Court, subsequent proceedings being the same as if the cause had been brought there by writ of error or appeal. The form of the certificate is substantially as follows : CERTIFICATE OP QUESTIONS BY CIRCUIT JUDGES TO THE SUPREME COURT. The United States Circuit Court of Appeals for the Circuit. [Title of Cause.] Appeal from the District Court of the United States for the District of . This cause coming on for hearing before the court after full argument, it is ordered, in view of the important questions arising with the record and the doubt which the court has as to the correct decision thereof that certain ques- tions shall be certified to the Supreme Court of the United States for its instruc- tion thereon, that accompanying said question there shall also be a statement from which such question can be fully understood} which question and the statement accompanying them are as follows: [Questions and statements are here set forth.] [To be signed by all judges.] 1679. Appellate Procedure District Courts of Alaska to the Supreme Court. Part 547, Jud. Code. "Appeals and writs of error may be taken and prosecuted from final judgments and decrees . of the district court for the district of Alaska or any division thereof, direct to the Supreme Court of the United States (in the cases enumerated) within the same time, in the same manner, and under the same regulations as writs of error and appeals are taken from the district court to the Supreme Court." (36 Stats. 1158; 5 Fed. Stats. Ann., 2d ed., p. 905; 2 U. S. Comp. Stats. 1916, 1224; Foster's Federal Practice, 5th ed., pp. 2388, 2437, 2456, 2539.) This procedure is included within the first class of appeals enumerated in 1650, supra, and the practice is the same as that in appeals from district courts direct to the United States Supreme Court, heretofore described. f)27 APPEAL AND ERROR. Ch. 75, 1680 1680. Appellate Procedure Hawaii and Porto Rico. 246, Jud. Code, as amended 2, Act Jan. 28, 1915, c. 22. "Writs of error and appeals from the final judgments and decrees of the Supreme Court of the Territory of Hawaii and of the Supreme Court of Porto Rico may be taken and prose- cuted to the Supreme Court of the United States within the same time, in the same manner, under the same regulations, and in the same classes of cases, in which writs of error and appeals from the final judgments and decrees of the highest court of a State in which a decision in the suit could be had, may be taken and prosecuted to the Supreme Court of the United States under the provisions of section two hundred and thirty-seven; and in all other cases, civil or criminal, in the Supreme Court of the Territory of Hawaii or the Supreme Court of Porto Rico, it shall be competent for the Supreme Court of the United States to require by certiorari, upon the petition of any party thereto, that the case be certified to it, after final judgment or decree, for review and determination, with the same power and authority as if taken to that court by appeal or writ of error; but certiorari shall not be al- lowed in any such case unless the petition therefor is pre- sented to the Supreme Court of the United States within six months from the date of such judgment or decree." (36 Stats. 1158, as amended 38 Stats. 804; 5 Fed. Stats. Ann., 2d ed., p. 900; 2 U. S. Comp. Stats. 1916, 1223, p. 1787.) Part 2, Act Jan. 28, 1915, c. 22. "Writs of error and appeals from the final judgments and decrees of the supreme courts of the Territory of Hawaii and Porto Rico, wherein the amount involved, exclusive of costs, to be ascertained by the oath of either party or of other competent witnesses, exceeds the value of $5,000, may be taken and prosecuted in the cir- cuit courts of appeals." (38 Stats. 804; 6 Fed. Stats. Ann., 2d ed., p. 145.) 1681, Ch. 75 MANUAL OF FEDERAL PROCEDURE. 628 [Title of Trial Court and Cause.] WRIT OF ERROR TO THE SUPRKME COURT OF HAWAII. The United jStates of America, ss. The President of the United States of America to the Supreme Court of the Territory of Hawaii, Greeting: Because in the record and proceedings as also in the rendition of the judg- ment and decree which is in the said supreme court of the territory of Hawaii, before you or some of. you, being the highest court of law or equity of said territory in which a decision could be had in the said suit, where was drawn in question the validity of a treaty or statute of, or an authority exercised under, the United States and the decision was against their validity; [or here state any other Federal question involved] a manifest error has happened to the great damage of , plaintiff in error herein, as by their assignment of errors appears, we being willing that error, if any there be, should be duly corrected, and full justice done to the parties aforesaid in this behalf, do command you if judgment be therein given, that then under your seal, distinctly and openly, you send the record and proceedings aforesaid, with all things concerning the same, to the Supreme Court of the United States, so that you have the same at Washington within thirty days from the date hereof in the said Supreme Court to be then and there heard, that the record and proceedings aforesaid being inspected, the said Supreme Court may cause further to be done therein to correct' that error, if any there be, what of right should be done according to the laws of the United States. Witness the Honorable , Chief Justice of the said Supreme Court, this day of , A. D. 19. ) Clerk of the Supreme Court of the Territory of Hawaii. [Seal of the Supreme Court, Title of Court and Cause.] Allowed by ~~> Chief Justice of the Supreme Court of the Territory of Hawaii. 1681. Appellate Procedure From Supreme Court of Phil- ippines. Part 248, Jud. Code. "Such final judgments or decrees (of the supreme court of the Philippine Islands in the cases enumerated in chapter 39) may and can be reviewed, re- versed, 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 applicable, as the final judgments and decrees of the district courts of the United States." 629 APPEAL AND EHROB. Ch. 75, 1GS2-1683 (36 Stats. 1158; 5 Fed. Stats. Ann., 2d ed., p. 908; Foster's Federal Practice, 5th ed., pp. 2391, 2456, 2539.) The procedure upon appeal in these cases also falls within the first classification enumerated in 1650, supra. 1682. Appellate Procedure From District of Columbia. Part 250, Jud. Code. "Writs of error and appeals (from final judgments or decrees of the court of appeals of the District of Columbia in the cases enumerated and discussed in 2018 of chapter 39) shall be taken within the same time, .in the same manner, and under the same regulation, as writs of error and appeals are taken from the circuit courts of appeals to the Supreme Court of the United States." (36 Stats. 1159 ; 5 Fed. Stats. Ann., 2d ed., p. 913 ; 2 U. S. Comp. Stats. 1916, 1227; Foster's Federal Practice, 5th ed., pp. 1382, 1519, 2387, 2436, 2439, 2457.) Appellate procedure in the cases covered by this section falls within the third class of appeals enumerated in 1650, supra, and the discussion of that class of appeals applies to appellate proce- dure under this section. 1683. Appellate Procedure From District of Columbia, Where Decision of Circuit Court of Appeals is Otherwise Final. 251, Jud. Code. "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 require, by certiorari or otherwise, any such case to be certified to it for its review and determina- tion with the same power and authority in the case as if it had been carried by writ of error or appeal to said Supreme Court. It shall also be competent for said court of appeals, in any case in which its judgment or decree 'is made final under the section last preceding, at any time to certify to the Supreme Court of the United Slates 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 question and proposi- tions certified to it, which shall be binding upon said court 1684, Ch. 75 MANUAL OP FEDERAL, PROCEDURE. 630 o 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." (36 Stats. 1159 ; 5 Fed. Stats. Ann., 2d ed., p. 917; 2 U. S. Comp. Stats. 1916, 1228; Foster's Federal Practice, 5th ed., pp. 1520, 2379, 2387.) The language of this section is substantially the same as that of 239 and 240, Judicial Code, which apply to appeals from circuit courts of appeals of the various circuits to the Supreme Court, and the procedure under the above-quoted section is the same as that discussed under 239, 240, Judicial Code in 1677, 1678, supra. 1684. Certiorari Ninth Circuit to Supreme Court in Alaska Cases. Part 134, Jud. Code (Drawn from 202 of the Criminal Code of Alaska, and 504 and 505 of the Civil Code of Alaska). "Whenever such circuit court of appeals (for the ninth circuit) 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 instruc- tion shall be binding upon the circuit court of appeals." (36 Stats. 1134; 5 Fed. Stats. Ann., 2d ed., p. 644; 2 U. S. Comp. Stats. 1916, 1125; Foster's Federal Practice, 5th ed., pp. 2411, 2437, 2539.) i The cases covered by this section are those in which appeals may be taken from district courts of Alaska to the circuit court of appeals for the ninth circuit, the decision of said circuit court of appeals being final except for the review by the Supreme Court as above provided. The language of the section is similar to that of 239, Judicial Code, which provides for like procedure in all cases decided by the circuit courts of appeals of the various cir- cuits, in which their judgments are otherwise final, and the effect 631 APPEAL AND ERROR. Ch. 75, 1685-1687 of the section above quoted is to provide the same procedure in this class of appeals from the district courts of Alaska, as is pro- vided by 239, Judicial Code, in parallel appeals from district courts of the United States. 1685. Procedure After Transcript Reaches Appellate Court. Part Sup. Ct. Rule 8, and Cir. Ct. App. Rule 14. "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." (2 U. S. Comp. Stats. 1916, 1232, p. 1813.) This rule having been complied with the cause is docketed, heard, and decided in accordance with the rules of the particular appellate court to which the cause has been taken. It is not prac- ticable in a manual of this size to here set forth at length the pro- visions of all these rules. They are contained in the Appendix, and to them the practitioner must refer for information as to docketing, printing, and filing of brief, time for argument, and all the details relating to the conduct of the appeal before the appellate tribunal. 1686. No Reversal for Error in Fact. 1011, Rev. Stats. "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." (6 Fed. Stats. Ann., 2d ed., p. 230; 3 U. S. Comp. Stats. 1916, 1672.) 1687. Damages and Costs on Error. 1010, Rev. Stats., Com-p. Stats. 1901, p. 715, 4 F. S. A. 623. "Where, upon writ of error, judgment is affirmed in the Supreme Court or a circuit court, the court shall adjudge to the respondent in error just damages for his delay, and single or double costs at its discretion." (6 Fed. Stats. Ann., 2d ed., p. 228 j 3 U, S, Comp. Stats. 1916, 1671.) 1688, Ch. 75 MANUAL OF FEDERAL PROCEDURE. 632 1688. Dismissal of Appeal. Under the rules of the Supreme Court and the circuit courts of appeals, the appellee may secure the dismissal of an appeal upon any of the following grounds: 1. Transcript not properly filed or cause not docketed before return day named in citation. (Sup. Ct. Rule 9, C. C. A. Rule 16.) 2. Record not printed in time. (Sup. Ct. Rule 10, C. C. A. Rule 23.) 3. Nonappearance of counsel for appellant or failure to file brief. (Sup. Ct. Rule 16, C. C. A. Rule 22.) 4. Appearance not entered when case calls. (Sup. Ct. Rule 18, C. C. A. Rule 22.) 5. Requisite numbers of copies of brief not filed, or not filed in time. (Sup. Ct. Rule 21, C. C. A. Rule 24.) 6. By stipulation filed with clerk in vacation. (Sup. Ct. Rule 28, C. C. A. Rule 20.) 7. Neither party prepared to argue cause upon second call when called at two successive terms. (Sup. Ct. Rule 19.) 8. Failure of deceased appellants, representatives to appear. (C. C. A. Rule 19.) In addition to the above-named grounds prescribed by the rules, the following, held by the courts sufficient to warrant dismissal, have been gathered together and set forth in Simkins' "A Federal Equity Suit" (3d ed.), chapter CIX, p. 720. 9. Appellant may dismiss by leave of court. (United States v. Griffith, 141 U. S. 212, 35 L. Ed. 719, 11 Sup. Ct. 1005.) 10. When it appears that further prosecution is collusive. (Mills v. Green, 159 U. S. 654, 40 L. Ed. 293, 16 Sup. Ct. 132 ; Benner v. Hayes, 80 Fed. 953, 26 C. C. A. 271 ; Weaver v. Kelley, 92 Fed. 421, 34 C. C. A. 423.) 11. When there is no material issue. (Allen v. Georgia, 166 U. S. 140, 41 L. Ed. 949, 17 Sup. Ct. 525.) 12. When the question is moot, or some abstract proposition. (Kimball v. Kimball, 174 U. S. 158, 43 L. Ed. 932, 19 Sup. Ct. 639 ; United States v. Evans, 213 U. S. 297, 53 L. Ed. 803. 29 Sup. Ct. 507; Mills v. Green, 159 U. S. 653, 40 L. Ed. 293, 16 Sup. Ct. 132.) 633 APPEAL AND ERROR. Ch. 75, 1688 13. Where relief becomes impossible. (Mills v. Green, 159 U. S. 653, 40 L. Ed. 293, 16 Sup. Gt. 132; Flour Inspectors v. Glover, 160 U. S. 170, 40 L. Ed. 382, 16 Snp. Ct. 321 ; Katz v. San Antonio. 91 Fed. 567, 34 C. C. A. 10, 63 U. S. App. 452; Gamewell Fire Alarm Tel. Co. v. Municipal Signal Co., 77 Fed. 492, 23 C. C. A. 250, 33 U. S. App. 714; Lockwood v. Wickes, 75 Fed. 118, 21 C. C. A. 257, 36 U. S. App. 321, 40 U. S. App. 136, as when stat- utes repealed. Flour Inspectors v. Glover, 160 U. S. 170, 40 L. Ed. 382, 16 Sup. Ct. 321 ; Board of Flour Inspectors v. Glover, 161 U. S. 103, 40 L. Ed. 632, 16 Sup. Ct. 492.) 14. An appeal will be dismissed if no citation is sued out, or sued out and not served, but the regular appearance of appellee waives it. (Peace River Phosphate Co. v. Edwards, 70 Fed. 728, 17 C. C. A. 359, 30 U. S. App. 513 ; Freeman v. Clay, 48 Fed. 849, 1 C. C. A. 115, 2 U. S. App. 151.) 15. An appeal will be dismissed when based on grounds affect- ing the jurisdiction of the court a quo, or the jurisdiction of the appellate court, as when the appeal was not sued out within the time limited. (Gorman Wright Co. v. Wright, 134 Fed. 363-365, 67 C. C. A. 345 ; Great Southern Fire Proof Hotel Co. v. Jones, 177 U. S. 449-453, 44 L. Ed. 842-844, 20 Sup. Ct. 690; Waxahachie v. Coler, 92 Fed. 284, 34 C. C. A. 349.) 16. When decree joint, and appeal by one without notice to others. (Fitzpatrick v. Graham, 119 Fed. 353, 56 C. C. A. 95, and cases cited.) 17. When no assignment of errors or brief. (Moline Trust & Sav. Bank v. Wylie, 149 Fed. 734, 79 C. C. A. 440; Fitch v. Rich- ardson, 147 Fed. 196, 77 C. C. A. 422.) To procure the dismissal of an appeal, a written motion must be prepared and filed, and notice given in accordance with Supreme Court Rule 6, 3, and Circuit Court of Appeals Rule 21, 3. The motion may be in the following form: 1689, Ch. 75 MANUAL OP FEDERAL PROCEDURE. 634 [Title of Court and Cause.] MOTION TO DISMISS. The appellee moves the court to dismiss the appeal filed herein for the follow- ing reasons: 1. Because, etc. [setting forth the facts upon which the motion is based]. , Solicitor. The appellant must receive notice of the motion, which may be served in the following form : [Title of Court and Cause.] To , Appellant, and , His Counsel: Please take notice that the appellee will, on the day of , 19 , or as soon thereafter as counsel can be heard, submit to the above-entitled court at , his motion to dismiss the appeal now pending in this cause, a copy of which is attached to this notice. , Solicitor. 1689. Diminution of Record. If the transcript is incomplete or defective, the proper practice is a suggestion of diminution ; of the record, which is done by motion or petition in writing in the appellate court. Supreme Court Rule 14, C. C. A. Rule 18. "No certiorari for diminution of the record will be hereafter awarded in any case, unless a motion therefor shall be made in writing, and the facts on which the same is founded shall, if not admitted by the other party, be verified by affidavit. And all motions for such certiorari must be made at the first term of the entry of the case; otherwise, the same will not be granted, unless upon special cause shown to the court, accounting satisfac- torily for the delay." (2 U. S. Comp. Stats. 1916, 1232. p. 1821.) The petition may be, substantially, as follows: (M. K. & T. Ry. Co. v. Dinsmore, 108 U. S. 30, 27 L. Ed. 640, 2 Sup. Ct. 9) : 635 APPEAL AND ERROR. Ch. 75, 1690 , [Title of Court and Cause.] PETITION FOB CERTIORARI FOR DIMINUTION OF RECORDS. To the Honorable Justices of the Supreme Court of the United States: The petition of respectfully shows to this honorable court as follows [here set forth the failure of the clerk in the lower court to incorporate in the record those proceedings for ths lack of which the diminution is suggested, or whatever the circumstances are, which are responsible for the diminution] : Wherefore your petitioner prays that a writ of certiorari may be issucil out of and under the seal of this court, directed to the United States circuit court of appeals for the circuit [or whatever court the appeal may have been taken from], commanding the said court to certify and send to this court on a day certain to be therein designated, a full and complete transcript of all and every part of the record and proceedings of the said court in the said ease therein entitled, v. , No. , remaining on file in the office of the clerk of the said court, and not embodied in the transcript on appeal in the said cause already filed in this court [or specify what parts of the record it is desired to have sent up]. , Petitioner. It seems that the motion or petition must be verified, unless the facts therein stated are admitted. (Chappell v. United States, 160 U. S. 499, 40 L. Ed. 510, 16 Sup. Ct. 397.) 1690. Mandate. Mandate is the command of the appellate court, directing the lower court in its disposition of a cause after its determination upon appeal or writ of error. It is issued by the clerk of the appellate court, in accordance with the rules of that court (C. C. A. Rule 32, Supreme Ct. Rule 24, 5, and Rule 39, Appendix, post), and in form substantially as follows: [Title of Court and Cause.] WRIT or MANDATE TO DISTRICT COURT ON REVERSAL. United States of America, ss. The President of the United States of America, to the Honorable Judges of the District Court of the United States for the District of : Greeting. [Seal of the U. S. Supreme Court.] Whereas, lately in the district court of the United States for the district of , before you, or some of you, in a cause between , appellant, and appellee, wherein the decree of such district court entered in said cause on the , day of , 19 , is in the following words, yis: 1690, Ch. 75 MANUAL OP FEDERAL PROCEDURE. 636 [Here set forth the decree verbatim.] As by the inspection of the transcript of the record which was brought into the Supreme -Court of the United States by virtue of an appeal taken by , according to the act of Congress in such case made and provided, fully appears. And whereas, on the day of , 19 , the said cause came on to ba heard before the said Supreme Court, on the said transcript' of record, on ap- peal, and was argued by counsel. On consideration whereof it is now here ordered, adjudged and decreed by this court that the decree of said district court in this cause be, and the same is hereby reversed, with costs to the original plaintiff, , against the defend- ant, . [Here set forth the decree of the Supreme Court.] And it is further ordered that this cause be, and the same is hereby, re- manded to the said district court for further proceedings in conformity with the opinion of this court. You, therefore, are hereby commanded that such execution and further pro- ceedings be had in said cause," in conformity with the opinion and the decree of this court, as according to right and .justice, and the laws of the United States, ought to be had, the said appeal notwithstanding. Witness the Honorable , Chief Justice of the United States, this day of , A. D. 19 . " t Clerk of the Supreme Court of the United States. Upon receipt of the mandate by the lower court, nothing is left except for that court to carry it into execution. (Durrant v. Stor- row, 101 U. S. 555, 25 L. Ed. 961 ; Great Northern R. Co. v. Western Union Tel. Co., 174 Fed. 321, 98 C. C. A. 193 ; In re Sanford Fork & Tool Co., 160 U. S. 247, 40 L. Ed. 414, 16 Sup. Ct. 291.) If, in executing the directions contained in the writ of mandate, either party believes that the lower court has misconstrued those direc- tions, his remedy is by appeal or mandamus. (In re Blake, 175 U. S. 117, 44 L. Ed. 94, 20 Sup. Ct. 42 ; Metcalf v. Watertown, 68 Fed. 861, 16 C. C.-A. 37 ; James v. Central Trust Co., 108 Fed. 931, 47 C. C. A. 374.) In such appeals the original judgment is. not reviewable, the only question being as to the proper compliance with the directions contained in the writ of mandate. (United States v. Camou, 184 U. S. 572, 46 L. Ed. 694, 22 Sup. Ct. 505.) If the writ of mandate is clear, leaving nothing to the discre- tion of the lower court, and the action of that court does npt con- 637 APPEAL AND ERROR. Ch. 75, 1691-1693 form to the mandate, the proper remedy is not appeal, but man- damus. (In re Sanford Fork & Tool Co., 160 U. S. 247, 40 L. Ed. 414, 16 Sup. Ct. 291 ; Mason v. Pewabic Min. Co., 153 U. S. 361, 38 L. Ed. 745, 14 Sup. Ct. 847; In re Blake, 175 U. S. 117, 44 L. Ed. 94, 20 Sup. Ct. 42.) 169J . Death of Party After Judgment, but Before Appeal. Prior to the act of March 3, 1875, it was the practice, upon the death of a party after judgment had been rendered, and before the time for taking an appeal had elapsed, to apply to the court below for an order reviving the suit in the name of the repre- sentative of the deceased. (McClane v. Boone, 6 Wall. 246, 18 L. Ed. 836.) Section 9 of that act, however, made all formal revival pro- ceedings unnecessary, the representative of the deceased being merely required to file a certified copy of his appointment. 297, Judicial Code, repeals the act of Mar. 3, 1875, and fur- nishes no substitute for it. Consequently the old practice of formally applying for revivor in the name of the representative of the deceased is again necessary. 1692. Death of a Party During Appellate Proceedings. When appellate proceedings are pending in the Supreme Court and either party dies, Rule 15 of the Supreme Court Rules makes provision for what shall be done. These rules are set out in Appendix, post, and the rule cited may also be found 2 U. S. Comp. Stats. 1916, 1232, p. 1822. The death of a party pending appellate, proceedings to the circuit court of appeals is provided for in Rule 19 of the 1st, 2d, 4th, 5th, 7th, 8th and 9th circuits, and Rule 21 in the 3d circuit and Rule 16 in the 6th circuit. These rules are set out in Appendix. 1693. Mistake as to Proper Method of Review not Ground for Dismissal. 4, Act Sept. 6, 1916, c. , provides that a mis- take in the proper method of taking an appeal shall not cause a dismissal, but the court shall take the action that would be appropriate if proper appellate procedure had been followed. (39 Stats. 727; Fed. Stats. Ann., 2d ed., Pamphlet Sup. No. 8, "Judiciary"; 3 U. S. Comp. Stats. 1916, 1649a, p. 3275.) Ch. 76 MANUAL OF FEDERAL PROCEDURE. 638 CHAPTER 76. MISCELLANEOUS PROVISIONS. SEO. 1700. Construction of Code. 1701. Definitions. 1702. Priority of Eevenue Cases or Where State a Party. 1703. Suits Under Revenue and Postal Laws, etc., Brought in Name of United States. 1704. District Attorney's Prosecution of Fraud on the Revenue. 1705. Warrants for Searches and Seizures Under Customs Laws. 1706. Procedure in Seizure Cases Under Customs Laws. 1707. Bailing Property Seized Under Customs Laws. 1708. Property Taken Under Eevenue Laws Irrepleviable. 1709. Credits Allowed in Government Suits Against Individuals. 1710. Credits Allowed in Government Suits Under Postal Laws. 1711. Interest in Postal Suits on Balances Due. 1712. Sale after Condemnation Under Revenue Laws. 1713. Paying Money into Court. 1714. Withdrawal of Money Paid into Court. 1715. Liens on Vessels for Repairs, Supplies or Other Necessaries Procedure in Sem. 1716.. Seizing and Detaining Letters, etc., Carried Contrary to Law. 1717. Same Disposition of Seizures. 1718. Mandamus to Compel Obedience to Provisions of Interstate Commerce Act Respecting Securing Information Concerning Stocks, Bonds and Other Securities. 1719. Trading With the Enemy Act Jurisdiction of District Court. 1720. Same Courts Philippine Islands and Canal Zone. 1721. Limitation on Suits by Alien Enemy. 1722. Suits by Enemy against Licensee Relative to Patents, Trademarks, Prints, Labels and Copyrights Under Trading With the Enemy Act. 1723. Same Against Others Than Licensee. 1724. Action on Claim Against Bureau War Risk Insurance. 1725. Jurisdiction of Prosecutions Under Act for National Security and De- fense Production, Conservation and Distribution of Food Products and Fuel. 1726. Civil Action Under Liquor Laws of District of Columbia for Injuries by Intoxicated Person or in Consequence of Intoxication. 1727. Condemnation Proceedings Land for Military Purposes. 1728. Condemnation Proceedings for Harbor Improvements. 639 MISCELLANEOUS PROVISIONS. Ch. 76, 1700-1701 1700. Construction of Code. 292, Jud. Code. "Wherever, in any law not contained within this act, a reference is made to any law revised or embraced herein, such reference, upon the taking effect hereof, shall be construed to refer to the section of this act into which has been carried or revised the provision of law to which reference is so made." (36 Stats. 1167; 5 Fed. State. Ann. 2d ed., p. 1084; 2 U. S. Comp. Stats. 1916, 1269.) 293, Jud. Code. "The provisions of sections one to five, both inclusive, of the Revised Statutes (1701, below), 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." (36 State. 1167; 5 Fed. State. Ann., 2d ed., p. 1084; 2 U. S. Comp. Stats. 1916, 1272.) 294, Jud. Code. ' ' The provisions of this act, so far as they are substantially the same as existing statutes, shall be construed as continuations thereof, and not as new enactments, and there shall be no implication of a change of intent by reason of a change of words in such statute, unless such change of intent shall be clearly manifest." (36 Stats. 1167; 5 Fed. Stats. Ann., 2d ed., p. 1084 ; 2 U. S. Comp. State. 1916, 1271 ; Simkins' Federal Equity Suit, 3d ed., p. 42.) 295, Jud. Code. "The arrangement and classification of the several sections of this act have been made for the pur- pose of a more convenient and orderly arrangement of the same, and therefore no inference or presumption of a legis- lative construction is to be drawn by reason of the chapter under which any particular section is placed." (36 Stats. 1167; 5 Fed. State. Ann., 2d ed., p. 1085; 2 U. S. Comp. State. 1916, 1272.) 1701. Definitions. 1-5, Rev. Stats. "1. In determining the meaning of the Revised Statutes, or of any act or resolution of Congress passed subsequent to February twenty-fifth, eighteen hundred and seventy-one, words importing the singular number may extend and be applied to several persons or things; words importing the plural number may include the singular : words 1702, Ch. 76 MANUAL OF FEDERAL PROCEDURE. 640 importing the masculine gender may be applied to females; the words 'insane person' and 'lunatic' shall include every idiot, non compos, lunatic, and insane person; the word 'per- son' may extend and be applied to partnerships and corpo rations, and the reference to any officer shall include any person authorized by law to perform the duties of such office, unless the context shows that such words were intended to be used in a more limited sense; and a requirement of an 'oath* shall be deemed complied with by making affirmation in judi- cial form. "2. (County.) The word 'county' includes a parish, or any other equivalent subdivision of a^state or territory of the United States. "3. (Vessel.) The word 'vessel' includes every descrip- tion of water craft or other artificial contrivance used, or capable of being used, as a means of transportation on water. "4. (Vehicle.) T^ie word 'vehicle' includes every de- scription of carriage or other artificial contrivance used, or capable of being used, as a means of transportation on land. "5. (Company, association.) The word ' company ' or ^as- sociation,' when used in reference to a corporation, shall be deemed to embrace the words 'successors and assigns of such company or association,' in like manner as if these last-named words, or words of similar import, were expressed." (Fed. Stats. Ann., 2ded., title "Statutes"; 1 U. S. Comp. Stats. 1916, 1-5.) 1702. Priority of Revenue Cases or Where State a Party. 949, Rev. Stats. ' ' When a state is a party, or the execu- tion of the revenue laws of a state is enjoined or stayed, in any suit in a court of the United States, such state or the party claiming under the revenue laws of a state, the execu- tion whereof is enjoined or stayed, shall be entitled, on show- ing sufficient reason, to have the cause heard at any time after it is docketed, in preference to any civil cause pending in such court between private parties." (6 Fed. Stats. Ann., 2d ed., p. 92; 3 U. S. Comp. Stats. 1916, 1581.) 641 MISCELLANEOUS PROVISIONS. Ch. 76, 1703-1704 1703. Suits Under Revenue and Postal Laws, etc., Brought in Name of United States. 919, Rev. Stats. "All suits for the recovery of any duties, imposts, or taxes, or for the enforcement of any penalty or forfeiture provided by any act respecting imports or tonnage, or the registering and recording or enrolling and licensing of vessels, or the internal revenue, or direct taxes, and all suits arising under the postal laws, shall be brought in the name of the United States." (6 Fed. Stats. Ann., 2d ed., p. 79; 3 U. S. Comp. Stats. 1916, 1545.) 1704. District Attorney's Prosecution of Fraud on the Revenue. 838, Rev. Stats. "It shall be the duty of every district attorney to whom any collector of customs, or of internal revenue, shall report, according to law, any case in which any fine, penalty, or forfeiture has been incurred in the district of such attorney for the violation of any law of the United States relating to the revenue, to cause the proper proceed- ings to be commenced and prosecuted without delay, for the fines, penalties, and forfeitures, in such case provided, unless, upon inquiry and examination, he shall decide that such pro- ceedings cannot probably be sustained, or that the ends of public justice do not require that such proceedings should be instituted; in which case he shall report the facts in customs cases to the Secretary of the Treasury, and in internal revenue cases to the Commissioner of Internal Revenue for their direc- tion. And for the expenses incurred and services rendered in all such cases, the district attorney shall receive and be paid from the Treasury such sum as the Secretary of the Treasury shall deem just and reasonable, upon the certificate of the judge before whom such cases are tried or disposed of : Provided, That the annual compensation of such district at- torney shall not exceed the maximum amount prescribed by law, by reason of such allowance and payment." (4 Fed. Stats. Ann., 2d ed., p. 761; 2 U. S. Comp. Stats. 1916, 1297.) Manual 41 1705-1706, Ch. 76 MANUAL OF FEDERAL PROCEDURE. 642 1705. Warrants for Searches and Seizures Under Customs Laws. 3066, Rev. Stats. "If any collector, naval officer, sur- veyor, or other person specially appointed by either of them or inspector shall have cause to suspect a concealment of any merchandise in any particular dwelling-house, store-building, or other place, they, or either of them, upon proper applica- tion on oath to any justice of the peace, f or district judge of cities, police justice, or any judge of the circuit or district court of the United States, or any Commissioner of the United States circuit court, shall be entitled to a warrant to enter such house, store, or other place, in the daytime only, and there to search for such merchandise ; and if any shall be found, to seize and secure the same for trial; and all such merchandise, upon which the duties shall not have been paid, or secured to be paid, shall be forfeited." (2 Fed. Stats. Ann., 2d ed., p. 1163; 6 U. S. Comp. Stats. 1916, 5769.) 1706. Procedure in Seizure Cases Under Customs Laws. 923, Rev. Stats. ' l When any vessel, goods, wares, or merchandise are seized by any officer of the customs, and prosecuted for forfeiture by virtue of any law respecting the revenue, or the registering and recording, or the enrolling and licensing of vessels, the court shall cause fourteen days' notice to be given of such seizure and libel, by causing the substance of such libel, with the order of the court thereon, setting forth the time and place appointed for trial, to be inserted in some newspaper published 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 proc- lamation shall be made in such manner as the court shall direct. And if no person appears and claims such vessel, goods, wares, or merchandise, and gives bond to defend the prosecution thereof and to respond the cost in case he shall not support his claim, the court shall proceed to hear and de- termine the cause according to law." (3 Fed. Stats. Ann., 2d ed., p. 324 ; 3 U. S. Comp. Stats. 1916, 1549.) 643 MISCELLANEOUS PROVISIONS. Ch. 76, 1707-1708 1707. Bailing Property Seized Under Customs Laws. 938, Rev. Stats. "Upon the prayer of any claimant to the court, that any vessel, goods, wares, or merchandise, seized and prosecuted under any laws respecting the revenue from imports or tonnage, or the registering and recording, or the enrolling and licensing of vessels, or any part thereof, should be delivered to him, the court shall appoint three proper per- sons to appraise such property, who shall be sworn in open court, or before a commissioner appointed by the district court to administer oaths to appraisers, for the faithful discharge of their duty ; and the appraisement shall be made at the ex- pense of the party on whose prayer it is granted. If, on the return of the appraisement, the claimant, with one or more sureties, to be approved by the court, shall execute a bond to the United States for the payment of a sum equal to the sum at which the property prayed to be delivered is appraised, and produce a certificate from the collector of the district where the trial is had, and of the naval officer thereof, if any there be, that the duties on the goods, wares, and merchandise, or tonnage duty on the vessel so claimed, have been paid or secured in like manner as if the same had been legally entered, the court shall, by rule, order such vessel, goods, wares, or merchandise to be delivered to such claimant; and the said bond shall be lodged with the proper officer of the court. If judgment passes in favor of the claimant, the court shall cause the said bond to be canceled ; but if judgment passes against the claimant, as to the whole or any part of such vessel, goods, wares, or merchandise, and the claimant does not within twenty days thereafter pay into the court, or to the proper officer thereof, the amount of the appraised value of such vessel, goods, wares, or merchandise so condemned, with the costs, judgment shall be granted upon the bond, on motion in open court, without further delay." (3 Fed. Stats. Ann., 2d ed., p. 325; 3 U. S. Comp. Stats. 1916, 1564.) 1708. Property Taken Under Revenue Laws Irrepleviable. 934, Rev. Stats. "All property taken or detained by any officer or other person, under authority of any revenue law of the United States, shall be irrepleviable, and shall be deemed to be in the custody of the law and subject only to the orders. 1709-1711, Ch. 76 MANUAL OP FEDERAL PROCEDURE. 644 and decrees of the courts of the United States having juris- diction thereof." (Fed. Stats. Ann., 2d ed., "Replevin"; 3 U. S. Comp. Stats. 1916, 1560.) 1709. Credits Allowed in Government Suits Against Indi- viduals. 951, Rev. Stats. "In suits brought by the United States against individuals, no claim for a credit shall be admitted, upon trial, except such as appear to have been presented to the accounting officers of the Treasury, for their examination, and to have been by them disallowed, in whole or in part, unless it is proved to the satisfaction of the court that the defendant is, at the time of the trial, in possession of vouchers not before in his power to procure, and that he was prevented from ex- hibiting a claim for such credit at the Treasury by absence from the United States or by some unavoidable accident." (2 Fed. Stats. Ann., 2d ed., p. 211; 3 U. S. Comp. Stats. 1916, 1588.) 1710. Credits Allowed in Government Suits Under Postal Laws. 952, Rev. Stats. "No claim for a credit shall be allowed upon the trial of any suit for delinquency against a postmaster, contractor, or other officer, agent, or employee of the Postoffice Department, unless the same has been presented to the sixth auditor and by him disallowed, in whole or in part, or unless it is proved to the satisfaction of the court that the defend- ant is, at the time of trial, in possession of vouchers not before in his power to procure, and that he was prevented from exhibiting to the said auditor a claim for such credit by some unavoidable accident." (2 Fed. Stats. Ann., 2d ed., p. 215; 3 U. S. Comp. Stats. 1916, 1589.) 1711. Interest in Postal Suits on Balances Due. 964, Rev. Stats. ' ' In all suits for balances due to the Postoffice Department, interest thereon shall be recovered, from the time of the default, at the rate of six per centum a year." (Fed. Stats.. Ann., 2d ed., "Postoffice Department"; 3 U. S. Comp. Stats. 1916, 1602.) 645 MISCELLANEOUS PROVISIONS. Ch. 76, 1712-1714 1712. Sale After Condemnation Under Revenue Laws. 939, Rev. Stats. "All vessels, goods, wares, or merchan- dise which shall be condemned by virtue of any law respect- ing the revenue from imports or tonnage, or the registering and recording, or the enrolling and licensing of vessels, and for which bonds shall not have been given by the claimant, shall be sold by the marshal or other proper officer of the court in which condemnation shall be had, to the highest bidder, at public auction, by order of such court, and at such place as the court may appoint, giving at least fifteen days' notice (except in cases of perishable merchandise) in one or more of the public newspapers of the place where such sale shall be; or if no paper is published in such place, in one or more of the papers published in the nearest place thereto ; for which adver- tising, a sum not exceeding five dollars shall be paid. And the amount of such sales, deducting all proper charges, shall be paid within ten days after such sale by the person selling the same to the clerk or other proper officer of the court directing such sale, to be by him, after deducting the charges allowed by the court, paid to the collector of the district in which such seizure or forfeiture has taken place, as herein- before directed." (3 Fed. Stats. Ann., 2d ed., p. 326; 3 U. S, Comp. Stats. 1916, 1565.) 1713. Paying Money into Court. 995, Rev. Stats. ' ' All moneys paid into any court of the United States, or received by the officers thereof, in any cause pending or adjudicated in such court, shall be forthwith de- posited with the Treasurer, an assistant treasurer, or a desig- nated depositary of the United States, in the name and to the credit of such court: Provided, That nothing herein shall be construed to prevent the delivery of any such money upon security, according to agreement of parties, under the direc- tion of the court. " (6 Fed. Stats. Ann., 2d ed., p. 631 ; 3 U. S. Comp. Stats. 1916, 1644.) 1714. Withdrawal of Money Paid into Court. 996, Rev. Stats, as amended Act March 3, 1911, c. 224. "No money deposited as aforesaid shall be withdrawn except 1715, Ch. 76 MANUAL OF FEDERAL PROCEDURE. by order of the judge or judges of said court, respectively, in term or in vacation, to be signed by such judge or judges, and to be entered and certified of record by the clerk; and every such order shall state the cause in or on account of which it is drawn. "In every case in which the right to withdraw money so deposited has been adjudicated or is not in dispute and such money has remained so deposited for at least five years un- claimed by the person entitled thereto, it shall be the duty of the judge or judges of said court, or its successor, to cause such money to be deposited in the Treasury of the United States, in the name and to the credit of the United States: Provided, That any person or persons or any corporation or company entitled to any such money may, on petition to the court from which the money was received, or its successor, and upon notice to the United States attorney and full proof of right thereto, obtain an order of court directing the pay- ment of such money to the claimant, and the money deposited as aforesaid shall constitute and be a permanent appropria- tion for payments in obedience to such orders, and this act is applicable to all money deposited in the Treasury of the United States in accordance with section nine hundred and ninety-six, Revised Statutes of the United States, as amended February nineteenth, eighteen hundred and ninety-seven." (36 Stats. 1083; 6 Fed. Stats. Ann., 2d ed., p. 632; 3 U. S. Comp. Stats. 1916, 1645.) 1715. Liens on Vessels for Repairs, Supplies or Other Neces- saries Procedure in Rem. 1-5, Act June 23, 1910, c. 373. " (Maritime lien on ves- sels for repairs, supplies, etc.) That any person furnishing repairs, supplies, or other necessaries, including the use of dry dock or marine railway, to a vessel, whether foreign or domes- tic, upon the order of the owner or owners of such vessel, or of a person by him or them authorized, shall have a maritime lien on the vessel which may -be enforced by a proceeding in rem, and it shall not be necessary to allege or prove that credit was given to the vessel." (36 Stats. 604, 605; Fed. Stats. Ann., 2d ed., "Shipping and Navigation"; 7 U. S. Comp. Stats. 1916, 7783, p. 8229.) 647 MISCELLANEOUS PROVISIONS. Ch. 76, 1715 2. "(Persons presumed to have authority.) That the following persons shall be presumed to have authority from the owner or owners to procure repairs, supplies, and other necessaries for the vessel: The managing owner, ship's hus- band, master, or any person to whom the management of the vessel at the port of supply is intrusted. No person tortiously or unlawfully in possession or charge of a vessel shall have authority to bind the vessel." (Fed. Stats. Ann., 2d ed-., "Shipping and Navigation"; 7 U. S. Comp. Stats. 1916, 7784, p. 8237.) 3. " (Charterers, etc.) That the officers and agents of a vessel specified in section two shall be taken to include such officers and agents when appointed by a charterer, by an owner pro hoc vice, or by an agreed purchaser in possession of the vessel, "but nothing in this act shall be construed to confer a lien when the furnisher knew, or by the exercise of reasonable diligence could have ascertained, that because of the terms of a charter party, agreement for sale of the vessel, or for any other reason, the person ordering the repairs, supplies, or other necessaries was without authority to bind the vessel therefor." (Fed. Stats. Ann., 2d ed., "Shipping and Naviga- tion"; 7 U. S. Comp. Stats. 1916, 7785.) 4. "(Waiving lien other proceedings not affected.) That nothing in this act shall be construed to prevent a fur- nisher of repairs, supplies, or other necessaries from waiving his right to a lien at any time, by agreement or otherwise, and this act shall not be construed to affect the rules of law now existing either in regard to the right to proceed against a vessel for advances or in regard to laches in the enforcement of liens on vessels, or in regard to the priority or rank of liens, or in regard to the right to proceed in personam." (Fed. Stats. Ann., 2d ed., "Shipping and Navigation"; 7 U. S. Comp. Stats. 1916, 7786.) 5. " (State laws superseded.) That this act shall super- sede the provisions of all state statutes conferring liens on vessels in so far as the same purport to create rights of action to be enforced by proceedings in rem against vessels for re- pairs, supplies, and other necessaries." (Fed. Stats. Ann., 2d ed., "Shipping and Navigation"; 7 U. S. Comp. Stats. 1916, 7787.) 1716-1718, Ch. 76 MANUAL OF FEDERAL, PROCEDURE. 6-18 1716. Seizing and Detaining Letters, etc., Carried Contrary to Law. 3990, Rev. Stats. "Any special agent of the Postoffice Department, collector, or bther customs officer, or United States marshal or his deputy, may at all times seize all letters and bags, packets, or parcels, containing letters which are being carried contrary to law on board any vessel or on anv P os ^ route, and convey the same to the nearest postoffice, or may, by the direction of the Postmaster General or Secretary of the Treasury, detain them until two months after the final determination of all suits and proceedings which may, at any time within six months after such seizure, be brought against any person for sending or carrying such letters." (Fed. Stats. Ann., 2d ed., "Postal Service"; 7 U. S. Comp. Stats. 1916, 7474.) 1717. Same Disposition of Seizures. 3991, Rev. Stats. "Every package or parcel seized by any special agent of the Postoffice Department, collector, or other customs officer, or United States marshal or his depu- ties, in which any letter is unlawfully concealed, shall be for- feited to the United States, and the same proceedings may be had to enforce the forfeiture as are authorized in respect to goods, wares, and merchandise forfeited for violation of the revenue laws; and all laws for the benefit and protection of customs officers making seizures for violating revenue laws shall apply to officers making seizures for violating the postal laws." (Fed. Stats. Ann., 2d ed., "Postal Service"; 7 U. S. Comp. Stats. 1916, , 7475.) 1718. Mandamus to Compel Obedience to Provisions of Inter- state Commerce Act Respecting Securing Information Concerning Stocks, Bonds and Other Securities. Part 19a, Act Feb. 4, 1887, c. 104, as Added ly Act Mch. 1, 1913, c. 92. "That the district courts of the United States shall have jurisdiction, upon the application of the Attorney General of the United States at the request of the commission, alleging a failure to comply with or a violation of any of the provisions of this section by any common carrier, to issue a 649 MISCELLANEOUS PROVISIONS. Ch. 76, 1719-1720 writ or writs of mandamus commanding such common carrier to comply with the provisions of this section." (37 Stats* 703 ; 4 Fed. Stats. Ann., 2d ed., p. 499 ; 8 U. S. Comp. Stats. 1916, 8591 [15], p. 9247.) 1719. Trading With the Enemy Act Jurisdiction of District Court. 17, Act Oct. 6, 1917, c. . [Jurisdiction of courts.] "That the district courts of the United States are hereby given jurisdiction to make and enter all such rules as to notice and otherwise, and all such orders and decrees, and to issue such process as may be necessary and proper in the premises to en- force the provisions of this Act, with a right of appeal from the final order or decree of such court as provided in sections one hundred and twenty-eight and two hundred and thirty- eight of the Act of March third, nineteen hundred and eleven, entitled 'An Act to codify, revise, and amend the laws relat- ing to the judiciary.' ' (Pamphlet Supp. Fed. Stats. Ann., 2d ed., p. 137, "Trading With the Enemy"; U. S. Comp. Stats. 1916, 31151/41, Adv. Sheets 244, Fed. No. 4, Supp., p. 458.) 1720. Same Courts Philippine Islands and Canal Zone. 18, Act Oct. 6, 1917, c. . "That the several courts of first instance in the Philippine Islands and the district court of the Canal Zone shall have jurisdiction of offenses under this Act committed within their respective districts, and concurrent jurisdiction with the district courts of the United States of offenses under this Act committed upon the high seas and of conspiracies to commit such offense as defined by section thirty-seven of the Act entitled 'An Act to codify, revise, and amend the penal laws of the United States,' approved March fourth, nineteen hundred and nine, and the provisions of such section for the purpose of this Act are hereby extended to the Philippine Islands and to the Canal Zone." (Pamphlet Supp. Fed. Stats. Ann., 2d ed., No. 12, p. 138, "Trading With the Enemy"; U. S. Comp. Stats. 1916, 3115H, Adv. Sheets 244, Fed. No. 4, Supp., p. 458.) 1721-1722, Ch. 76 MANUAL OF FEDERAL PROCEDURE. 650 1721. Limitation on Suits by Alien Enemy. Part 7 (b),Act Oct. 6, 1917, c. . "Nothing in this Act shall be deemed to authorize the prosecution of any suit or action at law or in equity in any court within the United States by an enemy or ally of enemy prior to the end of the war, except as provided in section ten hereof: Provided, how- ever, That an enemy or ally of enemy licensed to do business under this Act may prosecute and maintain any such suit or action so far as the same arises solely out of the business trans- acted within the United States under such license and so long as such license remains in full force and effect : And provided further, That an enemy or ally of enemy may defend by coun- sel any suit in equity or action at law which may be brought against him. "Receipt of notice from the President to the effect that he has reasonable ground to believe that any person is an enemy or ally of enemy shall be prima facie defense to any one re- ceiving the same, in any suit or action at law or in equity brought or maintained, or to any right or set-off or recoup- ment asserted by, such person and based on failure to com- plete or perform since the beginning of the war any contract or other obligation. In any prosecution under section sixteen hereof, proof of receipt of notice from the President to the effect that he has reasonable cause to believe that any person is an enemy or ally of enemy shall be prima, facie evidence that the person receiving such notice has reasonable cause to believe such other person to be an enemy or ally of enemy within the meaning of section three hereof." (Pamphlet Supp. Fed. Stats. Ann., 2d ed.. No. 12, p. 129, "Trading With the Enemy"; U. S. Comp. Stats. 1916, Adv. Sheets 244, Fed. No. 4, Supp., p. 446.) 1722. Suits by Enemy Against Licensee Relative to Patents, Trademarks, Prints, Labels and Copyrights Under Trading With the Enemy Act. 10 (ft, Act Oct. 6, 1917, c. . "The owner of any patent, trademark, print, label, or copyright under which a license is granted hereunder may, after the end of the war and until the expiration of one year thereafter, file a bill in 651 MISCELLANEOUS PROVISIONS. Ch. 76, 1722 equity against the licensee in the district court of the United States for the district in which the said licensee resides, or, if a corporation, in which it has its principal place of business (to which suit the Treasurer of the United States shall be made a party), for recovery from the said licensee for all use and enjoyment of the said patented invention, trademark, print, label, or copyrighted matter: Provided, however, That whenever suit is brought, as above, notice shall be filed with the alien property custodian within thirty days after date of entry of suit: Provided further, That the licensee may make any and all defenses which would be available were no license granted. The court on due proceedings had may adjudge and decree to the said owner payment of a reasonable royalty. The amount of said judgment and decree, when final, shall be paid on order of the court to the owner of the patent from the fund deposited by the licensee, so far as such deposit will satisfy said judgment and decree; and the said payment shall be in full or partial satisfaction of said judgment and decree, as the facts may appear; and if, after payment of all such judgments and decrees, there shall remain any balance of said deposit, such balance shall be repaid to the licensee on order of the alien property custodian. If no suit is brought within one year after the end of, the war, or no notice is filed as above required, then the licensee shall not be liable to make any further deposits, and all funds deposited by him shall be repaid to him on order of the alien property custodian. Upon entry of suit and notice filed as above required, or upon repayment of funds as above provided, the liability of the licensee to make further reports to the President shall cease. "I? suit is brought as above provided, the court may, at any time, terminate the license, and may, in such event, issue an injunction to restrain the licensee from infringement there- after, or the court, in case the licensee, prior to suit, shall have made investment of capital based on possession of the license, may continue the license for such period and upon such terms and with such royalties as it shall find to be just and reasonable." (Pamphlet Supp. Fed. Stats. Ann., 2d ed., No. 12, p. 133; title "Trading With the Enemy.") 1723-1724, Ch. 76 MANUAL OP FEDERAL PROCEDURE. 652 1723. Same Against Others Than Licensee. 10 (g), Act Oct. 6, 1917, c v . [Suits by enemy, etc., against infringers of patents, trademarks, etc. Decree In- junction.] "Any enemy, or ally of enemy, may institute and prosecute suits in equity against any person other than a licensee under this Act to enjoin infringement of letters pat- ent, trade-mark, print, label, and copyrights in the United States owned or controlled by said enemy or ally of enemy, in the same manner and to the extent that he would be entitled so to do if the United States was not at war: Provided, That no final judgment or decree shall be entered in favor of such enemy or ally of enemy by any court except after thirty days ' notice to the alien property custodian. Such notice shall be in writing and shall be served in the same manner as civil process of Federal courts." (Pamphlet Supp. Fed. Stats. Ann., 2d ed., No. 12, p. 134, " Trading With the Enemy.") 1724. Action on Claim Against Bureau War Risk Insurance. 405, Act Oct. 6, 1917, c. . [Actions on claims Par- ties Jurisdiction Judgment Attorney's fees Compensa- tion or fees prohibited Penalty.] "That in the event of dis- agreement as to a claim under the contract of insurance between the bureau and any beneficiary or beneficiaries there- under, an action on the claim may be brought against the United States in the district court of the United States in and for the district in which such beneficiaries or any one of them resides. The court, as part of its judgment, shall determine and allow such reasonable attorney's fees, not to exceed ten per centum of the amount recovered, to be paid by the claim- ant on behalf of whom such proceedings are instituted to his attorney and it shall be unlawful for the attorney or for any other person acting as claim agent or otherwise to ask for, contract for, or receive any other compensation because of such action. No other compensation or fee shall be charged or re- ceived by any person except such as may be authorized by the commissioner in regulations to be promulgated by him. Any person violating the provisions of this section shall be deemed guilty of a misdemeanor, and upon conviction thereof shall, for each and every such offense, be fined not, exceeding $500, 653 MISCELLANEOUS PROVISIONS. Ch. 76, 1725-1726 or be imprisoned at hard labor not exceeding two years, or both, in the discretion of the court." (Pamphlet Supp. Fed. Stats. Ann., No. 12, p. 165, "War Department, etc.") 1725. Jurisdiction of Prosecutions Under Act for National Security and Defense Production, Conservation and Distribution of Food Products and Fuel. 7, Act Aug. 10, 1917, c. . "That whenever any neces- saries shall be hoarded as defined in section six they shall be liable to be proceeded against in any district court of the United States within the district where the same are found and seized by a process of libel for condemnation, and if such necessaries shall be adjudged to be hoarded they shall be dis- posed of by sale in such manner as to provide the most equi- table distribution thereof as the court may direct, and the proceeds thereof, less the legal costs and charges, shall be paid to the party entitled thereto. The proceedings of such libel cases shall conform as near as may be to the proceedings in admiralty, except that either party may demand trial by jury of any issue of fact joined in any such case, and all such pro- ceedings shall be at the suit of and in the name of the United States. It shall be the duty of the United States attorney for the proper district to institute and prosecute any such action upon presentation to him of satisfactory evidence to sustain the same." (Pamphlet Supp. Fed. Stats. Ann. No. 12, p. 23 t "Food Products and Fuel.") 1726. Civil Action Under Liquor Laws of District of Colum- bia for Injuries by Intoxicated Person or in Consequence of In- toxication. 19, Act March 3, 1917, c. 165. "Every wife, child, parent guardian, or employer, or other person who shall be injured in person or property or means of support by any intoxicated person, or in consequence of intoxication, habitual or other- wise, of any person, such wife, child, parent, or guardian shall have a right of action, in his or her own name, against any person who shall, by selling or bartering intoxicating liquors, have caused the intoxication of such person, for all damages actually sustained, as well as for exemplary damages; and a 1727, Ch. 76 MANUAL OP FEDERAL PROCEDURE. 654 married woman shall have the right to bring suit, prosecute, and control the same, and the amount recovered the same as if unmarried ; and all damages recovered by a minor under this Act shall be paid either to such minor or to his or her parents, guardian, or next friend, as the court shall direct." . (U. S. Comp. Stats. 1916, 3369n, Advance Sheets, 239 Fed. No. 2, Supp., p. 126.) 1727. Condemnation Proceedings Land for Military Pur- poses. Act of July 2, 1917, c. . [Fortifications, coast defenses and military training camps Condemnation of land.] "That hereafter the Secretary of War may cause proceedings to be instituted in the name of the United States, in any court hav- ing jurisdiction of such proceedings for the acquirement by condemnation of any land, temporary use thereof or other in- terest therein, or right pertaining thereto, needed for the site, location, construction, or prosecution of works for fortifica- tions, coast defenses, and military training camps, such pro- ceedings to be prosecuted in accordance with the laws relating to suits for the condemnation of property of the States wherein the proceedings may be instituted: Provided, That when the owner of such land, interest or rights pertaining thereto shall fix a price for the same, which, in the opinion of the Secretary of War, shall be reasonable, he may purchase or enter into a contract for the use of the same at such, price without further delay : Provided further, That the Secretary of War is hereby authorized to accept on behalf of the United States donations of land and the interest and rights pertaining thereto required for the above-mentioned purposes : And provided further, That when such property is acquired in time of war or the immi- nence thereof upon the filing of the petition for the condemna- tion of any land, temporary use thereof or other interest therein or right pertaining thereto to be acquired for any of the purposes aforesaid, immediate possession thereof may be taken to the extent of the interest to be acquired and the lands may be occupied and used for military purposes, and the pro- vision of section three hundred and fifty-five of the Revised Statutes, providing that no public money shall be expended upon such land until the written opinion of the Attorney Gen- 655 MISCELLANEOUS PROVISIONS. Ch. 76, 1728 eral shall be had in favor of the validity of the title, nor until the consent of the legislature of the State in which the land is located has been given, shall be, and the same are hereby, suspended during the period of the .existing emergency." (Pamphlet Supp. Fed. Stats. Ann., No. 12, p. 112, "Public Property, Buildings and Grounds.") 1728. Condemnation Proceedings for Harbor Improvements. 9, Act Aug. 8, 1917, c. . [Land or easements needed in work of harbor improvement Procurement Condemnation proceedings.] "That whenever any State, or any reclamation, flood control or drainage district, or other public agency cre- ated by any State, shall undertake to secure any land or ease- ment therein, needed in connection with a work of river and harbor improvement duly authorized by Congress, for the pur- pose of conveying the same to the United States free of cost, and shall be unable for any reason to obtain the same by pur- chase and acquire a valid title thereto, the Secretary of Wai- may, in his discretion, cause proceedings to be instituted in .the name of the United States for the acquirement by con- demnation of said land or easement, and it shall be the duty of the Attorney General of the United States to institute and conduct such proceedings upon the request of the Secretary of War: Provided, That all expenses of said proceedings and any award that may be made thereunder shall be paid by such State, or reclamation, flood control or drainage district, or other public agency as aforesaid, to secure which payment the Secretary of War may require such State, or reclamation, flood control or drainage district, or other public agency as afore- said, to execute a proper bond in such amount as he may deem necessary befpre said proceedings are commenced." (Pamph- let Supp. Fed. Stats. Ann., No. 12, p. 116, "Rivers, Har- bors and Canals.") APPENDIX, PAGE THE JUDICIAL CODE 661 RULES OF THE UNITED STATES SUPREME COURT 817 RULES OP THE UNITED STATES CIRCUIT COURTS OP APPEALS. . . . 845 RULES IN ADMIRALTY UNITED STATES CIRCUIT COURTS OP AP- PEALS 961 EQUITY RULES IN FORCE FEBRUARY 1st, 1913, COMPARED WITH OLD EQUITY RULES 971 TABLES OP STATUTES, CODE SECTIONS, RULES AND CONSTITU- TIONAL PROVISIONS, QUOTED OR CITED HEREIN 1023 a. Revised Statutes of the United States 1025 b. Judicial Code Sections 1029 c. Criminal Code Sections 1031 d. Chronological Table of Acts of Congress Other Than Revised Statutes and Code Sections 1032 e. Supreme Court Rules 1034 f . Circuit Courts of Appeals Rules 1034 g. Equity Rules 1035 h. Constitutional Provisions 1036 i. Amendments to the United States Constitution 1036 Manual i3 (657) THE JUDICIAL CODE. (659) THE JUDICIAL CODE. CHAPTER ONE. DISTRICT COUBTS ORGANIZATION. SEO. 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. Courts 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 busi- ness. 15. When designation to be made by Chief Justice. 16. New appointment and revocation. 17. Designation of district judge in aid of another judge. 18. When circuit judge may be desig- nated 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. 1. (As amended Act July 30, 1914, c. 216.) In each of the districts described in chapter five there shall be a court called a district court, for which there shall be appointed one judge, to be called a district judge, ex- cept that in the northern district of California, the southern district of California, the northern district of Illinois, the district of Minnesota, the district of Nebraska, the district of New Jersey, the eastern district of New York, the northern and southern districts of Ohio, the district of Ore- gon, the eastern and western districts of Pennsylvania, and the western district of Washington, there shall be an additional district judge in each, and in the southern district of New York three additional district judges : Provided, That there shall be one judge for the eastern and western dis- tricts 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 dis- trict of Alabama shall continue as heretofore to be a district judge for the northern district thereof. Every district judge shall reside in the dis- (661) 662 APPENDIX. trict or one of the districts for which he is appointed, and for offending against this provision shall be deemed guilty of a high misdemeanor. (38 Stats. 580.) Provisions as to additional judges in the southern district of Georgia, dis- trict of New Jersey, eastern district of Pennsylvania, eastern and western districts of South Carolina, and western district of Texas will be foun.d under the states referred to respectively under 77, 96, 103, 105 and 108, post. 2. Each of the district judges shall receive a salary of six thousand dollars a year, to be paid in monthly installments. (36 Stats. 1087. Superseding act of Feb. 12, 1903, c. 547, 32 Stats. 825, and 554, Eev. Stats., which are repealed by 297, Jud. Code.) 3. (Re-enactment of 555, Rev. Stats.) A clerk shall be appointed for each district court by the judge thereof, except in cases otherwise pro- vided for by law. (36 Stats. 1087; 4 Fed. Stats. Ann., 2d ed., p. 817; 1 U. S. Comp. Stats. 1916, 970.) 4. (Superseding 558, Rev. Stats.) 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 default or misfeasances in office of any such deputy, whether in the lifetime of the clerk or afler 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 entitled to if the same had occurred in his lifetime. (36 Stats. 1087; 4 Fed. Stats. Ann., 2d ed., p. 817; 1 U. S. Comp. Stats. 1916, 971, p. 536.) 5. (Formerly 715, Rev. Stats.) The district court for each dis- trict may appoint a crier for the court ; and the marshal may appoint such number of persons, not exceeding five, as the judge may determine, to wait upon the grand and other juries, and for other necessary purposes. (36 THE JUDICIAL CODE. Stats. 1088; 4 Fed. Stats. Ann., 2d ed., p. 819; 1 U. S. Comp. Stats. 1916, 972, p. 537.) 6. (Re-enactment of 562, Rev. Stats.) The records of a district court shall be kept at the place where the court is held. When it is held at more than one place in any district and the place of keeping the records is not specially provided by law, they shall be kept at either of the places of holding the court which may be designated by the district judge. (36 Stats. 1088; 4 Fed. Stats. Ann., 2d ed., p. 819; 1 U. S. Comp. Stats. 1916, 973, p. 537.) 7. (Re-enacting 573, Rev. Stats.) No action, suit, proceeding, or process in any district court shall abate or be rendered invalid by reason of any act changing the time of holding such court, but the same shall be deemed to be returnable to, pending, and triable in the terms established next after the return day thereof. (36 Stats. 1088; 4 Fed. Stats. Ann., 2d ed., p. 820; 1 U. S. Comp. Stats. 1916, 974; McGlashan v. United States, 71 Fed. 434, 18 C. C. A. 172.) 8. (Re-enacting 746, Rev. Stats.) 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 discon- tinued by the arrival 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. (36 Sfats. 1088; 4 Fed. Stats. Ann., 2d ed., p. 820; 1 U. S. Comp. Stats. 1916, 975.) It has been held that a trial is commenced when the term ends, although a full jury has not been impaneled. United States v. Loughery, 13 Blatchf. 267, 26 Fed. Cas. No. 15,631. 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 dis- trict 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 grnntable of course, according to the rules and practice of the court. (36 Stats. 1088; 4 Fed. Stats. Ann., 2d ed., p. 821; 1 U. S. Comp. Stats. 1916, 976.) 664: APPENDIX. Re-enacting 574, Rev. Stats. Same as Equity Rule 1, omitting tne words "as courts of admiralty and." McDowell v. United States, 159 U. S. 596, 600, 40 L. Ed. 271, 273, 16 Sup. Ot. Ill ; Central Trust Co. v. Sheffield & Birming- ham Coal, I. R. Co., 60 Fed. 9; Butler v. United States, 87 Fed. 655. In gen- eral, United States v. Finnell, 185 U. S. 236, 46 L. Ed. 890. 22 Sup. Ct. 633; United States v. Marvin, 212 U. 8. 275, 53 L. Ed. 510, 29 Sup. Ct. 297. 10. (Re-enacting without change, Rev. Stats. 578.) 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 delays in such cases. (36 Stats. 1088; 4 Fed. Stats. Ann., 2d ed., p. 825; 1 U. S. Comp. Stats. 1916, 977.) In general, Pitman v. United States, 45 Fed. 159. Adjournment may be after prior adjournment by the judge. Clerk entitled to fees for attendance on day of adjournment. 11. (Re-enacting 581, Rev. Stats.) 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. (36 Stats. 1088; 4 Fed. Stats. Ann., 2d ed., p. 825; 1 U. S. Comp. Stats. 1916, 978.) Butler v. United States, 87 Fed. 655; United States v. Kessel, 63 Fed. 433. Orders made in chambers. United States v. The Schooner Little Charles, 1 Brock. (U. S.) 380, 26 Fed. Gas. No. 15,613. In general. Amer- ican Railroad Co. of Porto Rico v. Castro, 204 U. S. 453, 51 L. Ed. 564, 27 Sup. Ct. 466; Goll v. United States, 151 Fed. 412, 80 C. C. A. 642. 12. (Re-enacting 583, Rev. Stats.) 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 marshal, or clerk, by virtue of a written order directed to him by the judge, to the next regular term, or to any earlier day, as the order may direct. (36 Stats. 1088; 4 Fed. Stats. Ann., 2d ed., p. 825; 1 U. S. Comp. Stats. 1916, 979.) 13. ( Combining 591, Rev. Stats.; 34 Stats. 1417, and amendment thereto, which are repealed by 297, Jud. Code.) When any district judge is prevented, by any disability, from holding any stated or ap- pointed 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 THE JUDICIAL CODE. 665 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 certi- fied by any such circuit judge or, in his absence, by the circuit justice of the circuit in which the district lies, that for any sufficient reason it is impracticable to designate and appoint a judge of another district within the circuit to perform the duties of such disabled judge, the chief justice may, if in his judgment the public interests so require, designate and ap- point 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 dis- ability. Such appointment shall be filed in the clerk's office, and entered on the minutes .of the said district court, and a certified copy thereof, un- der the seal of the court, shall be transmitted- by the clerk to the judge so designated and appointed. (36 Stats. 1089; 4 Fed. Stats. Ann., 2d ed., p. 826; 1 U. S. Comp. Stats. 1916, 980.) Filing the paper is not necessary to the validity of the appointment of the judge. National Home of Soldiers v. Butler (C. C.), 33 Fed. 374, see also The Alaska (C. C.), 35 Fed. 555, 557. This power does not extend to the case* of a vacancy. 9 Op. Atty. Gen. 131. See 603, Rev. Stats. Appointment' not sub- ject to collateral attack. Ball v. United States, 140 U. S. 118, 35 L. Ed. 377, 11 Sup. Ct. 761. Appointee may extend time for filing return to writ of error. Hall v. McKinnon, 193 Fed. 572, 113 C. C. A. 440. Acts of desig- nated judge. McDowell v. United States, 159 U. S. 596, 40 L. Ed. 271, 16 Sup. Ct. 111. May v. United States, 199 Fed. 53, 117 C. C. A. 431; Chees- man v. Hart (C. C.), 42 Fed. 98; Gay v. Hudson Eiver El. Power Co. (C. C.), 190 Fed. 812. 14. (Drawn from 592, Rev. Stats., 36 Stats. 1089, which section is repealed by 297, Jud. Code.) 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 absence of all the circuit judges, to the circuit justice of the circuit 'in which the district lies, such circuit judge or justice may designate and appoint the judge of any other district in the same circuit to have and exercise within the district first named the same powers that are vested in the judge thereof. Each of the said district judges may, in case of such appointment, hold separate!}' at the same time a district court in such district, and discharge all the judicial duties of the district judge therein. (36 Stats. 1089; 4 Fed. Stats. Ann., 2d ed., p. 828; 1 U. S. Comp. Stats. 1916, 981.) In general, McDowell v. United States, 159 U. S. 596, 40 L. Ed. 271, 16 Sup. Ct. 111. Not subject to collateral attack. Ex parte United States, 666 APPENDIX. 226 U. S. 420, 57 L. Ed. 281, 33 Sup. Ct. 170. See In re Manning, 139 U. S. 504, 35 L. Ed. 264, 11 Sup. Ct. 624; Ball v. United States, 140 U. S. 118, 35 L. Ed. 377, 11 Sup. Ct. 761. McDowell v. United States, 159 U. S. 596, 40 L. Ed. 271, 16 Sup. Ct. 111. As to filing of appointment, see National Home for Soldiers v. Butler, 33 Fed. 374, 15. (Superseding 593, Rev. Stats.) If all the circuit judges and the circuit justice are absent from the circuit, or are unable to execute the provisions of either of the two preceding sections, or if the district judge so designated is disabled or neglects to hold the court and transact the busi- ness 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. (36 Stats. 1089; 4 Fed. Stats. Ann., 2d ed., p. 828; 1 U. S. Comp. Stats. 1916, 982.) 16. (Superseding 593, Rev. Stats.) Any such circuit judge, or cir- cuit justice, or the Chief Justice, as the case may be, may, from time to time, if in his judgment the public interests so require, make a new desig- nation and appointment of any other district judge, in the manner, for the duties, and with the powers mentioned in the three preceding sections, and revoke any previous designation and appointment. (36 Stats. 1089; 4 Fed. Stats. Ann., 2d ed., p. 828; 1 U. S. Comp. Stats. 1916, 983.) 17. (Superseding 596, Rev. Stats.) It shall be the duty of the senior circuit judge then present in the circuit, whenever in his judgment the public interest so requires, to designate and appoint, in the manner and with the powers provided in section fourteen, the district judge of any judicial district within his circuit to hold a district court in the place or in aid of any other district judge within the same circuit. (36 Stats. 1098; 4 Fed. Stats. Ann., 2d ed., p. 829; 1 U. S. Comp. Stats. 1916, 984.) McDowell v. United States, 159 U. S. 596, 40 L. Ed. 271, 16 Sup. Ct. 111. Ball v. United States, 140 U. S. 118, 35 L. Ed, 377, 11 Sup. Ct. 761. 18. (New. Amendment, Act October 3, 1913, c. 18.) Whenever, in the judgment of the senior circuit judge of the circuit in which the district lies, or of the circuit justice assigned to such-circuit, or of the Chief Justice, the public interest shall require, the said judge, or associate justice, or Chief Justice, shall designate and appoint any circuit judge of the circuit to hold said district court. . THE JUDICIAL CODE. 667 Whenever it shall be certified by the senior circuit judge of the second circuit, or, in his absence, by the circuit justice of said circuit, that on account of the accumulation or urgency of business in any district court in said circuit it is impracticable to designate and appoint a sufficient number of district judges in other districts within said circuit to relieve such accumulation or urgency of business, the Chief .Justice may, if in his judg- ment the public interests so require, designate and appoint the judge of any district court in another circuit to hold a district court within said second circuit, and to have and exercise within said district to which he is so assigned the same powers that are vested in the judge thereof: Provided, That said judge so designated and appointed shall have consented, in writ- ing, to such designation and appointment : And provided further, That the senior circuit judge of the circuit within which such judge so designated and appointed resides shall certify, in writing, that the business of the district of such judge will not suffer thereby. Such appointment shall be filed in the clerk's office and entered on the minutes of 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. Each of said district judges may, in case of such appointment, hold separately, at the same time, a district court in such district, and discharge all of the judicial duties of the dis- trict judge therein. (38 Stats. 203; 4 Fed. Stats. Ann., 2d ed., p. 829; 1 U. S. Comp. Stats. 1916, 985.) 19. (Drawn from 595, Rev. Stats.) It shall be the duty of the district or circuit judge who is designated and appointed undqf either of the six preceding sections, to discharge all the judicial duties for which he is so appointed, during the time for which he is so appointed ; and all the acts and proceedings in the courts held by him, or by or before him, in pursuance of said provisions, shall have the same effect and validity as if done by or before the district judge of the said district. (36 Stats. 1090; 4 Fed. Stats. Ann., 2d ed., p. 830; 1 U. S. Corap. Stats. 1916, 986.) 20. (Superseding 601, Rev. Stats.) 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 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 dircuit judge for said circuit then present in the circuit; and thereupon such proceedings shall be had as are 668 APPENDIX. provided in section fourteen. (36 Stats. 1090; 4 Fed. Stats. Ann., 2d ed., p. 831; 1 U. S. Comp. Stats. 1916, 987.) 21. (New legislation.) Whenever a party to any action or pro- ceeding, 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 sec- tion last preceding, or chosen in the manner prescribed in section twenty- three, to hear such matter. Every such affidavit shall state the facts and the reasons for the belief that such bias or prejudice exists, and shall be filed not less than ten days before the beginning of the term of the court, or good cause shall be shown for the failure to file it within such time. No party shall be entitled in any case to file more than one such affidavit ; and no such affidavit shall be filed unless 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. (36 Stats. 1090; 4 Fed. Stats. Ann., 2d ed., p. 832; I U. S. Comp. Stats. 1916, 988.) In general, Glascow v. Moyer, 225 U. S. 420, 56 L. Ed. 1147, 32 Sup. Ct. 753. The mere filing of the affidavit does not disqualify the judge. Ex parte N. K. Fairbanks Co., 194 Fed. 978. 22. (Re-enacting 602, Rev. Stats.) 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. (36 Stats. 1090; 4 Fed. Stats. Ann., 2d ed., p. 837; 1 U. S. Comp. Stats. 1916, 989.) In general, Ball v. United States, 140 U. S. 118, 35 L. Ed. 377, 11 Sup. Ct. 761. 23. (Drawn from Act of Feb. 20, 1907, c. 2073, 2 ; Act of March 2, 1907, c. 2575, 2, 34 Stats. 1253 ; Act of March 2, 1909 ; and the Act of Feb. 24, 1910, c. 56, 3, 36 Stats. 202.) In districts having more than one district judge, the judges may agree upon the division of business and THE JUDICIAL CODE. 669 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 assignment of cases for trial in said district. (36 Stats. 1090; 4 Fed. Stats. Ann., 2d ed., p. 838 ; 1 U. S. Comp. Stats. 1916, 990. Concurrent authority of judges. In re Steele, 156 Fed. 853; In re Steele, 162 Fed. 694.) CHAPTER TWO. DISTRICT COURTS JURISDICTION. SEO. 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 inter- nal revenue, customs, and tonnage laws. 6. Of suits under postal laws. 7. Of suits under the patent, the copy- right, 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. 14. Of suits to redress the deprivation, un- der color of law, of civil rights. SEC. 24. Original jurisdiction Cont'd. Par. 15. Of suits to recover certain 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 contract- 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. 670 APPENDIX. 24. The district courts shall have original jurisdiction as follows: First. Of all suits of a civil nature, at common law or in equity, brought by the United States, or by any officer thereof authorized by law to sue, or between citizens of the same state claiming lands under grants from different states; or, where the matter in controversy exceeds, ex- clusive of interest and costs, the sum or value of three thousand dollars, and (a) arises under the Constitution or laws of the United States, or treaties made, or which shall be made, under their authority, or (b) is between citizens of different states, or (c) is between citizens of a state and foreign states, citizens, or subjects. No district court shall have 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 as- signee, or of any subsequent holder if such instrument be payable to bearer and be not made by any corporation, unless such suit might have been prosecuted in such court to recover upon said note or other chose in action if no assignment had been made : Provided, however, That the foregoing, provision as to the sum or value of the matter in controversy shall not be consti'ued to apply to any of the cases mentioned in the succeeding paragraphs of this section. Second. Of all crimes and offenses cognizable under the authority of the United States. Third. Of all civil cavises of admiralty and maritime jurisdiction, sav- ing to suitors in all cases the right of a common-law remedy where the common law is competent to give it, and to claimants the rights and reme- dies under the workmen's compensation law of any state; 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. (As amended 1, Act Oct. 6, 1917, c. ; Pamphlet Supp. Fed. Stats. Ann. No. 12, p. 85.) Fourth. Of all suits arising under any law relating to the slave trade. Fifth. Of all cases arising under any law providing for internal revenue, or from revenue from imports or tonnage, except those cases arising under any law providing revenue from imports, jurisdiction of which has been conferred upon the court of customs appeals. Sixth. Of all cases arising under the postal laws. Seventh. Of all suits at law or in equity arising under the patent, the copyright, and the trade-mark laws. Eighth. Of all suits and proceedings arising under any law regulating commerce, except those suits and proceedings exclusive jurisdiction of which has been conferred upon the commerce court. Ninth. Of all suits and proceedings for the enforcement of penalties and forfeitures incurred under any law of the United States. THE JUDICIAL CODE. 671 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 per- son to whom such debenture was originally granted, or against any indorser thereof, to recover the amount of such debenture. Eleventh. Of all suits brought by any person to recover damages for any injury to his person or property on account of any act done by him, under any law of the United States, for the protection or collection of any of the revenues thereof, or to enforce the right of citizens of the United States to vote in the several states. Twelfth. Of all suits authorized by law to be brought by any person for the recovery of damages on account of any injury to his person or property, or of the deprivation of any right or privilege of a citizen of the United States, by any act done in furtherance of any conspiracy mentioned in section nineteen hundred and eighty, Revised Statutes. Thirteenth. Of all suits authorized by law to be brought against any person who, having knowledge that any of the wrongs mentioned in section nineteen hundred and eighty, Revised Statutes, are about to be done, and, having power to prevent or aid in preventing the same, neglects or refuses so to do, to recover damages for any such wrongful act. Fourteenth. Of all suits at law or in equity authorized by law to be brought by any person to redress the deprivation, under color of any law, statute, ordinance, regulation, custom, or usage of any state, of any right, privilege, or immunity, secured by the Constitution of the United States, or of any right secured by any law of the United States providing for equal rights of citizens of the United States, or of all persons within the jurisdiction of the United States. 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 touching the title to such office arises out of the denial of the right to vote to any citizen offering to vote, on account of race, color, or previous condition of servitude; Provided, That such jurisdiction shall extend only so far as to determine the rights of the parties to such office by reason of the denial of the right guaranteed by the Constitution of the United States, and secured by any law, to en- force the right of citizens of the United States to vote in all the states. Sixteenth. Of all cases commenced by the United States, or by direction of any officer thereof, against any national banking association, and cases for winding up the affairs of any such bank; and of all suits brought by any banking association established in the district for which the court is held, under the provisions of title "National Banks," Revised Statutes, to 672 APPENDIX. enjoin the Comptroller of the Currency, or any receiver acting under his direction, as provided by said title. And all national banking associations established under the laws of the United States shall, for the purposes of all other actions by or against them, real, personal, or mixed, and all suits in equity, be deemed citizens of the states in which they are respectively located. Seventeenth. Of all suits brought by any alien for a tort only, in viola- tion of the laws of nations or of a treaty of the United States. Eighteenth. Of all suits against consuls and vice consuls. Nineteenth. Of all matters and proceedings in bankruptcy. Twentieth. Concurrent with the court of claims, of all claims not ex- ceeding 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 govern- ment 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 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: Pro- vided, 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 commonly known as "war claims," or to hear and determine other claims which had been rejected or reported on adversely prior to the third day of March, eighteen hundred and eighty-seven, by any court, department, or commis- sion 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 pro- vided 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 be- yond the seas at the time the claim accrued, entitled to the claim, shall THE JUDICIAL CODE. 673 not be barred if the suit be brought within three years after the dis- ability has ceased; but no other disability than those enumerated shall prevent any claim from being barred, nor shall any of the said disabilities operate cumulatively. All suits brought and tried under the provisions of this paragraph shall be tried by the court without a jury. Twenty-first. Of proceedings in equity, by writ of injunction, to re- strain violations of the provisions of laws of the United States to prevent the unlawful inclosure of public lands; and it shall be sufficient to give the court jurisdiction if service of original process be had in any civil proceeding on any agent or employee having charge or control of the inclosure. Twenty-second. Of all suits and proceedings arising under any law regulating the immigration of aliens, or under the contract labor laws. Twenty-third. Of all suits and proceedings arising under any law to protect trade and commerce against restraints and monopolies. 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 judgment or decree of any such court in favor of any claimant to an allotment of land shall have the same effect, when properly certified to the Secretary of the Interior, as if such allotment had been allowed and approved by him; but this provision shall not apply to any lands now or heretofore 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. (37 Stats. 46.) Twenty-fifth. Of suits in equity brought by any tenant in common or joint tenant for the partition of lands in cases where the United States is one of such tenants in common or joint tenants, such suits to be brought in the district in which such land is situate. (4 Fed. Stats. Ann., 2d ed., p. 838.) 25. The district courts shall have appellate jurisdiction of the judg- ments and orders of United States commissioners in cases arising under the Chinese exclusion laws. 26. The district court for the district of Wyoming shall have juris- diction of all felonies committed within the Yellowstone National Park and appellate jurisdiction of judgments in cases of conviction before the commissioner authorized to be appointed under section five of an act entitled "An Act to Protect the Birds and Animals in Yellowstone National Manual 48 674 APPENDIX. Park, and to Punish Crimes in said Park, and for Other Purposes," approved May seventh, eighteen hundred and ninety-four. 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, committed within the limits of any Indian reservation in the state of South Dakota. CHAPTER THREE. DISTRICT COURTS REMOVAL, OP CAUSES. ma 28. Removal of suits from state to United States district courts. 29. Procedure for removal. 30. Suits under grants of land from different states. 31. Eemoval of causes against per- sons denied any civil rights, etc. 32. When petitioner is in actual custody of state court. 33. Suits and prosecutions against revenue officers, etc. EEC. 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 re- manded. 38. Proceedings in suits removed. 39. Time for filing record; return of record, how enforced. 28. Any suit of a civil nature, at law or in equity, arising under the Constitution or laws of the United States, or treaties made, or which shall be made, under their authority, of which the district courts of the United States are given original jurisdiction by this title, which may now be pending or which may hereafter be brought, in any state court, may be removed by the defendant or defendants therein to the district court of the United States for the proper district. Any other suit of a civil nature, at law or in equity, of which the district courts of the United States are given jurisdiction by this title, and which are now pending or which may hereafter be brought, in any state court, may be removed into the district court of the United States for the proper district by the defendant or defendants therein, being nonresidents of that state. And when in any suit mentioned in this section there shall be a controversy which is wholly between citizens of different states, and which can be fully determined as between them, then either one or more of the defendants actually interested in such controversy may remove said suit into the district court of the United States for the proper district. And where a suit is now pending, THE JUDICIAL, CODE. 675 or may hereafter be brought, in any state court, in which there is a con- troversy 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 influe'ice he will not be able to obtain justice in such state court, or in any other state court to which the said defendant may, under the laws of the state, have the right, on account of such prejudice or local influence, to remove said cause : Provided, That if it further appear that said suit can be fully and justly determined as to the other defendants in the state court, without being affected by such prejudice or local influence, and that no party to the suit will be prejudiced by a separation of the parties, said district court may direct the suit to be remanded, so far as relates to such other de- fendants, to the state court, to be proceeded with therein. At any time before the trial of any suit which is now pending in any district court, or may hereafter be entered therein, and which has been removed to said court from a state court on the affidavit of any party plaintiff that he had reason to believe and did believe that, from prejudice or local influence, he was unable to obtain justice in said state court, the district court shall, on application of the other party, examine into the truth of said affidavit and the grounds thereof, and, unless it shall appear to the satisfaction of said court that said party will not be able to obtain justice in said state court, it shall cause the same to be remanded thereto. Whenever any cause shall be removed from any state court into any district court of the United States, and the district court shall decide that the cause was improperly removed, and order the same to be remanded to the state court from whence it came, such remand shall be immediately carried into execu- tion, and no appeal or writ of error from the decision of the district court so remanding such cause shall be allowed. Provided, That no case arising under an act entitled "An Act Relating to the Liability of Common Car- riers by Railroad to Their Employees in Certain Cases," approved April twenty-second, nineteen hundred and eight, or any amendment thereto, and brought in any state court of competent jurisdiction, shall be removed to any court of the United States. "And provided further, That no suit brought in any State court of competent jurisdiction against a railroad company, or other corporation, or person, engaged in and carrying on the business of a common carrier, to recover damages for delay, loss of, or injury to property received for transportation by such common carrier under section twenty of the Act to regulate commerce, approved February fourth, eighteen hundred and 676 APPENDIX. eighty-seven, as amended June twenty-ninth, nineteen hundred and six, April thirteenth, nineteen hundred and eight, February twenty-fifth, nine- teen hundred and nine and June eighteenth, nineteen hundred and ten shall be removed to any court of the United States where the matter in controversy does not exceed, exclusive of interest and costs, the sum or value of $3,000." (36 Stats. 1094, as amended by 38 Stats. 278, 5 Fed. Stats. Ann., 2d ed., p. 16.) 29. Whenever any party entitled to remove any suit mentioned in the last preceding section, except suits removable on the grounds of preju- dice or local influence, may desire to remove such suit from a state court to the district court of the United States, he may make and file a petition, duly verified, in such suit in such state court at the time, or at any time before the defendant is required by the laws of the state or the rule of the state court in which such suit is brought to answer or plead to the declaration or complaint of the plaintiff, for the removal of such suit into the district court to be held in the district where 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 aforesaid in said district court of the United States, the parties so removing the said cause shall, within thirty days thereafter, plead, answer, or demur to the declara- tion or complaint in said cause, and the cause shall then proceed in the same manner as if it had been originally commenced in the said district court. 30. If in any action commenced in a state court the title of land be concerned, and the parties are citizens of the same state and the matter in dispute exceeds the sum or value of three thousand dollars, exclusive of interest and 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 original grant, or an exemplification of it, except where the THE JUDICIAL CODB. 677 loss of public records shall put it out of his or their power, and shall move that any one or -more of the adverse party inform the court whether he or (hey 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 informa- tion may then, on petition and bond, as hereinbefore mentioned in this chapter, remove the cause for trial to the district court of the United States next to be holden in such district; and any one of either party removing the cause shall not be allowed to plead or give evidence of any other title than that by him or them stated as aforesaid as the ground of his or their claim. 31. When any civil suit or criminal prosecution is commenced in any state court, for any cause whatsoever, against any person who is de- nied or cannot enforce in the judicial tribunals of the state, or in the part of the state where such suit or prosecution is pending, any right secured to him by any law providing for the equal civil rights of citizens of the United States, or of all persons within the jurisdiction of the United States, or against any officer, civil or military, or other person, for any arrest or imprisonment or other trespasses or wrongs made or committed by virtue of or under color of authority derived from any law providing for equal rights as aforesaid, or for refusing to do any act on the ground that it would be inconsistent with such law, such suit or prosecution may, upon the petition of such defendant, filed in said state court at any time before the trial or final hearing of the cause, stating the facts and verified by oath, be removed for trial into the next district court to be held in the district where it is pending. Upon the filing of such petition 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 judgment and execution in the state court. It shall be the duty of the clerk of the state court to furnish such defendant, petitioning for a removal, copies of said process against him, and of all pleadings, depositions, testimony, and other proceedings in the case. If such copies are filed by said petitioner in the district court on the first day of its session, the cause shall proceed therein in the same manner as if it had been brought there by original process; and if the said clerk refuses or neglects to furnish such copies, the petitioner may thereupon docket the case in the district court, and the said court shall then have jurisdiction therein, and may, upon proof of such refusal or neglect of 678 APPENDIX. said clerk, and upon reasonable notice to the plaintiff, require the plaintiff to file a declaration, petition, or complaint in the cause; and, in case of his default, may order a nonsuit and dismiss the case at the costs of the plaintiff, and such dismissal shall be a bar to any further suit touching the matter in controversy. But if, without such refusal or neglect of said clerk to furnish such copies and proof thereof, the petitioner for removal fails to file copies in the district court, as herein provided, a certificate, under the seal of' the district court, stating such failure, shall be given, and upon the production 'thereof in said state court the cause shall pro- ceed therein as if no petition for removal had been filed. 32. When all the acts necessary for the removal of any suit or prose- cution, as provided in the preceding section, have been performed, and the defendant petitioning for such removal is in actual custody on process issued by said state court, it shall be the duty of the clerk of said district court to issue a writ of habeas corpus cum causa, and of the marshal, by virtue of said writ, to take the body of the defendant into his custody, to be dealt with in said district court according to law and the orders of said court, or, in vacation, of any judge thereof; and the marshal shall file with or deliver to the clerk of said state court a duplicate copy of said writ. 33. That when any civil suit or criminal prosecution is commenced in any court of a State against any officer appointed under or acting by authority of any revenue law of the United States now or hereafter en- acted, or against any person acting under or by authority of any such officer, on account of any act done under color of his office or of any such law, or on account of any right, title, or authority claimed by such officer or other person under any such law, or is commenced against any person holding property or estate by title derived from any such officer and affects the validity of any such revenue law, or against any officer of the courts of the United States for or on account of any act done under color of his office or in the performance of his duties as such officer, or when any civil suit or criminal prosecution 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 order of such House, the said suit or prosecution may at any time before the trial or final hearing thereof be removed for trial into the district court next to be holden in the district where the same is pending upon the petition of such defendant to said district court and in the following manner: Said petitions shall set forth the nature of the suit or prosecu- tion and be verified by affidavit and, together with a certificate signed THE JUDICIAL CODE. 679 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 stat- ing 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 district court, if in session, or if it be not, to the clerk thereof at his office, and shall be filed in said office. The cause shall thereupon be entered on the docket of the district court and shall proceed as a cause originally commenced in that court; but all bail and other security given upon such suit or prosecution shall continue in like force and effect as if the same had proceeded to final judgment and execution in the State court. When the suit is commenced in the State court by summons, subpoena, petition, or any 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 the proceedings in the cause. When it is commenced by capias or by any other similar form of pro- ceeding by which a personal arrest is ordered, he shall issue a writ of habeas corpus cum causa, a duplicate of which shall be delivered to the clerk of the State court or left at his office by the marshal of the district or his deputy or by some other person duly authorized thereto; and there- upon 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 dis- trict court, and any further proceedings, trial, or judgment therein in the State court shall be void. If the defendant in the suit or prosecu- tion be in actual custody on 'mesne process therein, it shall be the duty of the marshal, by virtue of the writ of habeas corpus cum causa, to take the body of the defendant into his custody, to be dealt with in the cause according to law and the order of the district court, or, in vacation, of any judge thereof; and if, upon the removal of such suit or prosecution, it is made to appear to the district court that no copy of the record and proceedings therein in the State court can be obtained, the district court may allow and require the plaintiff to proceed de novo and to file a declaration of his cause of action, and the parties may thereupon proceed as in actions originally brought in said district court. On failure of the plaintiff so to proceed, judgment of non prosequitur may be rendered against him, with costs 'for the defendant. 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 nonresident of that state wherein jurisdiction is obtained by the 680 APPENDIX. state court, by personal service of process, such action may be removed into the district court of the United States in and for the disti'ict 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 provisions of the preceding section. 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 supplied by affidavit or otherwise, as the circumstances of the case may require and allow; and thereupon such proceeding, trial, and judgment may be had in the said court of the United States, and all such process awarded, as if certified copies of such records and proceed- ings had been regularly before the said court. 36. When any suit shall ( be removed from a state court to a dis- trict 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 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 effect until dissolved or modified by the court to which such suit shall be removed. 37. If in any suit commenced in a district court, or removed from a state court to a district court of the United States, it shall appear to the satisfaction of the said district court, at any time after such suit has been brought or removed thereto, that such suit does not really and sub- stantially invoke a dispute or controversy properly within the jurisdiction of said district court, or that the parties to said suit have been improp- erly or collusively made or joined, either as plaintiffs or defendants, for the purpose of creating a case cognizable or removable under this chapter, the said district court shall proceed no further therein, but shall dismiss THE JUDICIAL CODE. 681 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. 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 proceed- ings had been taken in such suit in said disti'ict court as shall have been had therein in said state court prior to its removal. 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 remove the same, a copy of the record therein, after tender of legal fees for such copy, said clerk so offending shall, on conviction thereof in the district court of the United States to which said action or proceeding was removed, be fined not more than one thousand dollars, or imprisoned not more than one year, or both. The district court to which any cause shall be removable under this chapter shall have power to issue a writ of certiorari to said state court commanding such state court to make return of the record in any such cause removed as aforesaid, or in which any one or more of the plaintiffs or defendants have complied with the provisions of this chapter for the removal of the same, and enforce said writ according to law. If it shall be impossible for the parties or persons removing 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 prose- cutor 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 proceed- ing; 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 pro- ceed to final judgment. The said district court may make an order requiring the parties thereto to plead de novo; and the bond given, condj- tioned as aforesaid, shall be discharged so far as it requires copy of the record to be filed as aforesaid. 682 APPENDIX. 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 forfeit- ures, 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 prop- erty is taken. 4&. Jurisdiction in patent cases. 49. Proceedings to enjoin Comptrol- ler of the Currency. 50. When a part of several defend- ants cannot be served. 51. Civil suits; where to be brought. 52. Suits in states containing more than one district. 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 en- force 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 divest lien; how lien to be en- forced. 61. Commissioners to administer oaths to appraisers. 62. Transfer of records to district court when a territory becomes a state. 63. District judge shall demand and compel delivery of records of territorial court. 64. Jurisdiction of district courts in cases transferred from terri- torial courts. 65. Receivers to manage property ac- cording to state laws. 66. Suits against receiver. 67. Certain persons not to be ap- pointed or employed as offi- cers of courts. 68. Certain persons not to be masters or receivers. 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. 41. The trial of all offenses committed upon the high seas, or else- where 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. 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, deter- THE JUDICIAL CODE. 683 mined, and punished in either district, in the same manner as if it had been actually and wholly committed therein. 43. 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. 44. Taxes accruing under any law providing internal revenue may be sued for and recovered either in the district where the liability for such tax occurs or in the district where the delinquent resides. * 45. Proceedings on seizures made on the high seas, for forfeiture under any law of the United States, may be prosecuted in any district into which the property so seized is brought and proceedings instituted. Pro- ceedings 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. 46. Proceedings for the condemnation of any property captured, whether on the high seas or elsewhere out of the limits of any judicial district, or within any district, on account of its being purchased or ac- quired, 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 insur- rection 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. 47. Proceedings on seizures for forfeiture of any vessel or cargo entering any port of entry which has been closed by the President in pursuance of law, or of goods and chattels coming from a state or section declared by proclamation of the President to be in insurrection into other parts of the United States, or of any vessel or vehicle conveying such property, or conveying persons to or from such state or section, or of any vessel belonging, in whole or in part, to any inhabitant of such state or section, may be prosecuted in any district into which the property so seized may be taken and proceedings instituted; and the district court thereof shall have as full jurisdiction over such proceedings as if the seizure was made in that district. 48. In suits brought for the infringement of letters patent the dis- trict courts of the United States shall have jurisdiction, in law or in equity, in the district of which the defendant is an inhabitant, or in any district in which the defendant, whether a person, partnership, or cor- 684 APPENDIX. poration, 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, sendee of process, sum- mons, or subpoana upon the defendant may be made by service upon the agent or agents engaged in conducting such business in the district in which suit is brought. 49. All proceedings by any national banking association to enjoin the Comptroller of the Currency, under the provisions of any lawrelating to national banking associations, shall be had in the district where such association is located. 50. Where there are several defendants in any suit at law or in equity, and one or more of them are neither 'inhabitants of nor found within the district in which the suit is brought, and do not voluntarily appear, the court may entertain jurisdiction, and proceed to the trial and adjudication of the suit between the parties who are properly before it; but the judgment or decree rendered therein shall not conclude or preju- dice other parties not regularly served with process nor voluntarily appear- ing to answer; and nonjoinder of parties who are not inhabitants of nor found within the district, as aforesaid, shall not constitute matter of abatement or objection to the suit. 51. Except as provided in the five succeeding sections, no person shall be arrested in one district for trial in another, in any civil action before a district court; and, except as provided in the six succeeding sec- tions, no civil suit shall be brought in any district court against any person by any original process or proceeding in any other district than that whereof he is an inhabitant; but where the jurisdiction is founded only on the fact that the action is between citizens of different states, suit shall be brought only in the district of the residence of either the plaintiff or the defendant. 52. When a state contains more than one district, every suit not of a local nature, in the district court thereof, against a single defendant, inhabitant of such state, must be brought in the district where he resides; but if there are two or more defendants, residing in different districts of the state, it may be brought in either district, and a duplicate writ may be issued against the defendants, directed to the marshal of any other district in which any defendant resides. The clerk issuing the duplicate writ shall indorse thereon that it is a true copy of a writ sued out of the court of the proper district; and such original and duplicate THE JUDICIAL CODE. 685 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 therein, execution may be issued, directed to the mar- shal of any district in the same state. 53. When a district contains more than one division, every suit not of a local nature against a single defendant must be brought in the division where he resides; but if there are two or more defendants residing in different divisions of the district it may be brought in either division. All mesne and final process subject to the provisions of this section may be served and executed in any or all of the divisions of the district, or if the state contains more than one district, then in any of such districts, as provided in the preceding section. All prosecutions for crimes or offenses shall be had within the division of such districts where the same were committed, unless the court, or the judge thereof, upon the applica- tion of the defendant, shall order the cause to be transferred for prose- cution 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 manner 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 district court in the division in which the county is situated from which the removal is made; and the time within which the removal shall be perfected, in so far as it refers to or is regu- lated by the terms of the United States courts, shall be deemed to refer to the terms of the United States district court in such division. 54. In suits of a local nature, where the defendant resides in a dif- ferent 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. 55. Any suit of a local nature, at law or in equity, where the land or other subject-matter of a fixed character lies partly in one district and partly in another, within the same state, may be brought in the dis- trict court of either district; and the court in which it is brought shall have jurisdiction 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. 686 APPENDIX. 56. Where in any suit in which a receiver shall be appointed the land or other property of a fixed character, the subject of the suit, lies within different states in the same judicial circuit, the receiver so appointed shall, upon giving bond as required by the court, immediately be vested with full jurisdiction and control over all the property, the subject of the suit, lying or being within such circuit; subject, however, to the dis- approval 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 disapproval; and subject, also, to the filing and entering in the district court for each district of the circuit in which any portion of the property rn^ay lie or be, within ten days thereafter, of a duly certified copy of the bill and of the order of appointment. The disapproval of such appointment within such thirty days, or the failure to file such certified copy of the bill and order of appointment within ten days, as herein required, shall divest such receiver of jurisdiction over all such property except that portion thereof lying or being within the state in which the suit is brought. In any case coming within the provisions of this section, in which a receiver shall be appointed, process may issue and be executed within any district of the circuit in the same manner and to the same extent as if the property were wholly within the same district ; but orders* affecting such property shall be entered of record in each district in which the property affected may lie or 'be. 57. When in any suit commenced in any district court of the United States to enforce any legal or equitable lien upon or claim to, or to remove any encumbrance or lien or cloud upon the title to, real or per- sonal property within the district where such suit is brought, one or more of the defendants therein shall not be an inhabitant of or found within the said district, or shall not voluntarily appear thereto, it shall be lawful for the court to make an order directing such absent defendant or de- fendants to appear, plead, answer, or demur by a day certain to be designated, which order shall be served on such absent defendant or de- fendants, if practicable, wherever found, and also upon the person or persons in possession or charge of said property, if any there be; or where such personal service upon such absent defendant or defendants is not practicable, such order shall be published in such 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, answer, 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 publica- tfiE JUDICIAL CODE. 68? tion of said order and of the performance of the directions contained in the same, it shall be lawful for the court to entertain jurisdiction, and proceed to the hearing and adjudication of such suit in the same manner as if such absent defendant had been served with process withjn the said district; but said adjudication shall, as regards said absent defendant or defendants without appearance, affect only the property which shall have been the subject of the suit and under the jurisdiction of the court therein, within such district; and when a part of the said real or per- sonal property against which such proceedings shall be taken shall be within another district, but within the same state, such suit may be brought in either district in said state: Provided, however, That any defendant or defendants not actually personally notified as above provided may, at any time within one year after final judgment in any suit mentioned in this section, enter his appearance in said suit in said district court, and thereupon the said court shall make an order setting aside the judg- ment therein and permitting said defendant or defendants to plead therein on payment by him or them of such costs as the court shall deem just; and thereupon said suit shall be proceeded with to final judgment accord- ing to law. 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 jn 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 transferred to the court of any other division of the same district, without regard to the residence of the defendants, for trial. When a cause shall be ordered to be transferred to a court in any other division, it shall be the duty of the clerk of the court from which the transfer is made to carefully transmit to the clerk of the court to which the transfer is made the entire file of papers in the cause and all documents and deposits in his court pertaining thereto, together with a certified transcript of the records of all orders, interlocu- tory 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 constitute a part of the record of the cause in the court to which the transfer shall be made. The clerk receiving such transcript and original papers shall 688 APPENDIX. file the same and the case shall then proceed to final disposition as other cases of a like nature. 59. Whenever any new district or division has been or shall be estab- lished', or any county or territory has been or shall be transferred from one district or division to another district or division, prosecutions for crimes and offenses committed within such district, division, county, or territory prior to such transfer, shall be commenced and proceeded with the same as if such new district or division had not been created, or such county or territory had not been 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 terri- tory 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. 60. The creation of a new district or division, or the transfer of any county or territory from one district or division^to another district or division, shall not affect or divest any lien theretofore acquired in the circuit or district court by virtue of a decree, judgment, execution, attach- ment, 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 and at the cost of the party desiring the same, shall make a true and certified copy of the record thereof, which, when so made and certified, and filed in the proper court of the district or division in which such property is situated or shall be, after such transfer, shall constitute the record of such lien in such court, and shall be evidence in all courts and places equally with the original thereof; and thereafter like proceedings sljall be had thereon, and with the same effect, as though the cause or proceeding had been originally instituted in such court. The provisions of this section shall apply not only in all cases where a district or division is created, or a county or any territory is transferred by this or any future act, but also in all cases where a district or division has been created, or a county or any territory has been transferred by any law heretofore enacted. THE JUDICIAL CODE. 689 61. Any district judge may appoint commissioners, before whom ap- praisers 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. 62 (Re-enacting 567, Rev. Stats). 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. (36 Stats. 1104; Benner v. Porter, 50 U. S. 235, 13 L. Ed. 119, 9 How. (U. S.) 235.) 63 (Re-enacting 568, Rev. Stats.). It shall be the duty of the district judge, in the case provided in the preceding section, to demand of the clerk, or other person having possession or custody of the records therein mentioned, the delivery thereof, to be deposited in said district court; and in case of the refusal of such clerk or person to comply with such demand, the said district judge shall compel the delivery of such records by attachment or otherwise, according to law/ (36 Stats. 1104; 5 Fed. Stats. Ann., 2d ed., p. 540; 1 U. S. Comp. Stats. 1916, 1045, p. 1183.) 64. When any territory is admitted as a state, and a district court is established therein, the said district court shall take cognizance of all cases which were pending and undetermined in the trial courts of such territory, from the judgments or decrees to be rendered in which writs of error could have been sued out or appeals taken to the Supreme Court or to the circuit court of appeals, and shall proceed to hear and determine the same. 65. Whenever in any cause pending in any court of the United States there shall be a receiver or manager in possession of any property, such receiver or manager shall manage and operate such property accord- ing to the requirements of the valid laws of the state in which such prop- erty shall be situated, in the same manner that the owner or possessor thereof would be bound to do if in possession thereof. Any receiver or Manual 4 690 APPENDIX. manager who shall willfully violate any provision of this section shall be fined not more than three thousand dollars, or imprisoned not more than one year, or both. 66. (Formerly 3, Act Mch. 3, 1887, c. 373, as Amended Act Aug. 13, 1888, c. 866.) Every receiver or manager of any property appointed by any court of the United States may be sued in respect of any act or transac- tion of his in carrying on the business connected with such property, with- out the previous leave of the court in which such receiver or manager was appointed; but such suit shall be subject to the general equity jurisdic- tion of the court in which such manager or receiver was appointed so far as the same may be necessary to the ends of justice. 67 (Re-enacting 7 of Act of Aug. 13, 1888, c. 866). No person shall be appointed to or employed in any office or duty in any court who is related by affinity or consanguinity within the degree of first cousin to the judge of such court. (36 Stats. 1088; 5 Fed. Stats. Ann., 2d ed., p. 548; 1 U. S. Comp. Stats. 1916, 1049. See Elgutter et al. v. Northwestern Mutual Life Ins. Co., 86 Fed. 500, 30 C. C. A. 218.) Amendment Dec. 21, 1911, c. 4. "Provided, That no such person at present holding a position or employment in a circuit court shall be de- barred from similar appointment or employment in~ the district court succeeding to such circuit court jurisdiction." 68 (Re-enacting act of March 3, 1879, c. 183). 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 appoint- ment. (36 Stats. 1105; 5 Fed. Stats. Ann., 2d ed., p. 548; 1 U. S. Comp. Stats. 1916, 1050, p. 1220. In general, Briggs v. Neal et al., 120 Fed. 224, 56 C. C. A. 572.) THE JUDICIAL CODE, 691 CHAPTER FIVE. DISTRICT COURTS DISTRICTS, AND PROVISIONS APPLICABLE TO PARTICULAR STATES. SE0. 09. Judicial districts. 70. Alabama. 71. Arkansas. 72. California. 73. Colorado. 74. Connecticut. 75. Delaware. 76. Florida. 77. Georgia. 7. Idaho. 79. Illinois. 80. Indiana. 81. Iowa. 82. Kansas. 83. Kentucky. 84. Louisiana. 85. Maine. 86. Maryland. 87. Massachuoetts. 88. Michigan. 89. Minnesota. 90. Mississippi. 91. Missouri. 92. Montana. SEC. 93. Nebraska. 94. Nevada. 95. New Hampshire. 96. New Jersey. 97. New York. 98. North Carolina. 99. North Dakota. 100. Ohio. 101. Oklahoma. 102. Oregon. 103. Pennsylvania, 104. Rhode Island. 105. South Carolina. 106. South Dakota, 107. Tennessee. 108. Texas. 109. Utah. 110. Vermont. 111. Virginia. 112. Washington. 113. West Virginia. 114. Wisconsin. 115. Wyoming. . 69. (Re-enacting 297, Rev. Stats.) The United States are divided into judicial districts as follows: 36 Stats. 1105. , 70, as Amended Act Feb. 28, 1913, c. 89. (Drawn from 532, Rev. Stats.) The state of Alabama is divided into three judicial dis- tricts, to be known as the northern, middle, and southern districts of Alabama. The northern district shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Cullman, Jackson, Lawrence, Limestone, Madison, and Morgan, which shall constitute the northeastern division of said district ; also the territory embraced on the date last mentioned in the counties of Colbert, Franklin, and Lauderdale, which shall constitute the north- western division of said district; also the territory embraced on the* date last mentioned in the counties of Cherokee, Dekalb, Etowah, Marshall, and Saint Clair, which shall constitute the middle division of said district; also the territory embraced on the date last men- tioned in the counties of Blount, Jefferson, and Shelby, which shall constitute the southern division of said district; also the territory 692 APPENDIX. embraced on the date last mentioned in the counties of Walker, Winston, Marion, Fayette, and Lamar, which shall constitute the Jasper division of said district; also the territory embraced on the date last mentioned in the counties of Calhoun, Clay, Cleburne, and Talladega, which shall constitute the eastern division of said district; also the territory embraced on the date last mentioned in the counties of Bibb, Greene, Pickens, Sumter, and Tuscaloosa, which shall con- stitute the western division of said district. Terms of the district court for the northeastern division shall be held at Huntsville on the first Tuesday in April and the second Tuesday in October; for the northwestern division, at Florence on the second Tuesday in February and the third Tuesday in October: Provided, That suitable rooms and accommodations for holding court at Florence shall be furnished free of expense to the government; for the middle division, at Gadsden on the first Tuesdays in February and August: Provided, That suitable rooms and accommodations for the holding court at Gadsden shall be furnished free of expense to the government ; for the southern division, at Birmingham on the first Mondays in March and September, which courts shall remain in session for the transaction of business at least six months in each calendar year; for the Jasper division, at Jasper on the second Tuesdays in January and June; Provided, That suitable rooms and accommodations for holding court at Jasper shall be fur- nished free of expense to the government; for the eastern division, at Anniston on the first Mondays in May and November; and for the western division, at Tuscaloosa, on the first Tuesdays in January and June. The clerk of the court for the northern district shall maintain an office in charge of himself or a deputy at Anniston, at Florence, at Jasper, and at Gadsden, which shall be kept open at all times for the transaction of the business of said court. The district judge for the northern district shall reside at Birmingham. The middle district shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Autauga, Barbour, Bullock, Butler, Chilton, Coosa, Covington, Crenshaw, Elmore, Lowndes, Montgomery, and Pike, which shall constitute the northern division of said district; also the territory embraced on the date last mentioned in the counties of Coffee, Dale, Geneva, Henry, and Houston, which shall constitute the southern division of said district; also the territory embraced on the date last mentioned in the counties of Chambers, Lee, Macon, Randolph, Russell, and Tallapoosa, which shall constitute the eastern division of said middle judicial district. Terms of the district court for the northern division shall be held at Montgomery on the first THE JUDICIAL CODE. 693 Tuesdays in May and December; and for the southern division, at Dothan on the first Mondays in June and December and for the eastern division, at Opelika on the first Mondays in April and November: Provided, That suitable rooms and accommodations for holding court at Opelika shall be furnished free of expense to the government. The clerk of the court for the middle district shall maintain an office, in charge of himself or a deputy, at Dothan, and shall maintain an office in charge of himself or a deputy at Opelika, which said offices at Dothan and Opelika shall be kept open at all times for the transaction of the business of said divisions. The southern district shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Baldwin, Choctaw, Clarke, Conecuh, Escambia, Mobile, Monroe, and Washington, which shall constitute the southern division of said district ; also the territory embraced on the date last mentioned in the counties of Dallas, Hale, Marengo, Perry, and Wil- cox, which shall constitute the northern division of said district. Terms of the district court for the southern division shall be held at Mobile on the fourth Mondays in May and November; and for the northern division at Selma on the first Mondays in May and November. (5 Fed. Stats. Ann., 2d ed., p. 552; 2 U. S. Comp. Stats. 1916, 1052.) 71. (Drawn from 533, Rev. Stats.) The state of Arkansas is divided into two districts, to be known as the eastern and western dis- tricts of Arkansas. The western district shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Sevier, Howard, Little River, Pike, Hempstead, Miller, Lafayette, Columbia, Nevada, Ouachita, Union, and Calhoun, which shall constitute the Texarkana division of said district; also the terri- tory embraced on the date last mentioned in the counties of Polk, Scott, Yell, Logan, Sebastian, Franklin, Crawford, Washington, Ben- ton, and Johnson, which shall constitute the Fort Smith division of said district; also the territory embraced on the date last mentioned in the counties of Baxter, Boone, Carroll, Madison, Marion, Newton, and Searcy, which shall constitute the Harrison division of said dis- trict. , Terms of the district court for the Texarkana division shall be held at Texarkana on the second Mondays in May and November ; for the Fort Smith division, at Fort Smith on the second Mondays in ^January and June; and for the Harrison division, at Harrison on the second Mondays in April and October. The eastern district shall in- clude the territory embraced on the first day of July, nineteen hundred and t-cn, in the counties of Lee, Phillips, Saint Francis, Cross, Monroe, and Woodruff, which constitute the eastern division of said district; 694 APPENDIX. also the territory embraced on the date last mentioned in the counties of Independence, Cleburne, Stone, Izard, Sharp, and Jackson, which shall constitute the northern division of said district; also the terri- tory embraced on the date last mentioned in the counties of Critten- den, Clay, Craighead, Greene, Mississippi, Poinsett, Fulton, Randolph, and Lawrence, which shall constitute the Jonesboro division of said district; and also the territory embraced on the date last mentioned in the counties of Arkansas, Ashley, Bradley, Chicot, Clark, Cleveland, Conway, Dallas, Desha, Drew, Faulkner, Garland, Grant, Hot Spring, Jefferson, Lincoln, Lonoke, Montgomery, Perry, Pope, Prairie, Pulaski, Saline, Van Buren, and White, which shall constitute the western division of said district. Terms of the district court for the eastern division shall be held at Helena on the second Monday in March and the first Monday in October; for the northern division, at Batesville on the fourth Monday in May and the second Monday in December; for the Jonesboro division, at Jonesboro on the second Mondays in May and November; and for the western division, at Little Rock on the first Monday in April and the third Monday in October. The clerk of the court for the eastern district shall maintain an office in charge of himself or a deputy at Little Rock, at Helena, at Jonesboro, and at Batesville, which shall be kept open at all times for the transaction of the business of the court. And the clerk of the court for the western district shall maintain an office in charge of himself or a deputy at Fort Smith, at Harrison, and at Texarkana, which shall be kept open at all times for the transaction of the business of the court. (5 Fed. Stats. Ann., 2d ed., p. 554; 2 U. S. Comp. Stats. 1916, 1056.) Act Sept. 9, 1914, c. 295. (Arkansas Judicial District Terms of Court.) That hereafter the terms of the United States district court for the Jonesboro division of the eastern district of Arkansas shall be held at Jonesboro on the first Monday in May and the fourth. Monday in November. (38 Stats. 713.) (Act of March 4, 1915, c. 170.) 1. (Arkansas eastern district Eastern and western divisions Boundaries changed.) That the counties of Desha and Chicot, in the State of Arkansas, be, and the same are hereby, detached from the western division of the eastern district of Arkansas and are hereby annexed to,t included in, and made a part of the eastern division of the said eastern district of the State of Arkansas. (38 Stats. 1193; 5 Fed. Stats. Ann., 2d ed., p. 1091; 2 U. S. Comp. Stats. 1916, 1056b.) THE JUDICIAL CODE. 695 2. (Western district made smaller.) That the county of Yell, in the State of Arkansas, be, and the same is hereby, detached from the Fort Smith division of the western district of Arkansas and is annexed to, in- cluded in, and made a part of the western division of the eastern district of the State of Arkansas. (38 Stats. 1193; 5 Fed. Stats. Ann., 2d ed., p. 1091; 2 U. S. Comp. Stats. 1916, 1056c.) 3. (Jurisdiction of pending cases.) That this Act shall in no wise affect the jurisdiction as to actions at law or suits in equity now pending, but all actions at law and suits in equity now pending in the respective districts and divisions having jurisdiction thereof at the time of the pas- sage of this Act shall proceed as if this Act had not been passed. (38 Stats. 1193; 5 Fed. Stats. Ann., 2d ed., p. 1091.) Act Oct. 3, 1913, c. 17, 1. That the state of Arizona shall constitute one judicial district, to be known as the district of Arizona. Sec. 2. That terms of the district court shall be held in Tucson on the first Mondays in May and November; at Phoenix on the first Mon- days in April and October; at Prescott on the first Mondays in March and September; and at Globe on the first Mondays in June and December. Causes, civil and criminal, may be transferred by the court or judge thereof from any of the aforesaid places, where court shall be held in said district, to any of the places herein above mentioned in said district, when the convenience of the parties or the ends of justice would be promoted by the transfer; and any interlocutory order made by the court or judge thereof in any of the above-mentioned places. (5 Fed. Stats. Ann., 2d ed., p. 1090; 2 U. S. Comp. Stats. 1916, 1054.) 31. Act June 20, 1910, c. 310. (One judicial district Attached to ninth circuit Judicial officers.) That the said States, when admitted as aforesaid, shall constitute one judicial district, and the circuit and district courts of said district shall be held at the capital of said State, and the said district shall, for judicial purposes, be attached to the ninth judicial circuit. There shall be appointed for said district one district judge, one United States attorney, and one United States marshal. The judge of said district shall receive a yearly salary the same as other similar judges of the United States, payable as provided for bj r law, and shall reside in the district to which he is appointed. There shall be appointed clerks of said courts who shall keep their offices at the capital of said State. The regular terms of said courts shall be held on the first Monday in April and the first Monday in October of each year. The circuit and district courts for said district, and the judges thereof, respectively, shall possess the same powers and 696 APPENDIX. jurisdiction and perform the same duties required to be performed by tbe other circuit and district courts and judges of the United States, and shall be governed by the same laws and regulations. The marshal, district attorney, and the clerks of the circuit and district courts of said district, and all other officers and persons performing duties in the administration of justice therein, shall severally possess the powers and perform the duties lawfully possessed and required to be performed by similar officers in other districts of the United States, and shall, for the services they per- form, receive the fees and compensation now allowed by law to officers performing similar services for the United States in the Territory of Arizona. (36 Stats. 576; 5 Fed. Stats. Ann., 2d ed., p. 1090.) 72. (Drawn from 531, Rev. Stats.) The state of California is divided into two districts, to be known as the northern and southern dis- tricts of California. The southern district shall include the territory em- braced on the first day of July, nineteen hundred and ten, in the counties of Fresno, Inyo, Kern, Kings, Madera, Mariposa, Merced, and Tulare, which shall constitute the northern division of said district; also the ter- ritory embraced on the date last mentioned in the counties of Imperial, Los Angeles, Orange, Riverside, San Bernardino, San Diego, San Luis Obispo, Santa Barbara, and Ventura, which shall constitute the southern division of said district. Terms of the district court for the northern division shall be held at Fresno on the first Monday in May and the second Monday in November ; and for the southern division at Los Angeles, on the second Monday in January and the second Monday in July, and at San Diego on the second Mondays in March and September. The northern district shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Alameda, Alpine, Amador, Butte, Calaveras, Colusa, Contra Costa, Del Norte, El Dorado, Glenn, Humboldt, Lake, Lassen, Marin, Mendocino, Modoc, Mono, Mon- terey, Napa, Nevada, Placer, Plumas, Sacramento, San Benito, San Fran- cisco, San Joaquin, San Mateo, Santa Clara, Santa Cruz, Shasta, Sierra, Siskiyou, Solano, Sonoma, Stanislaus, Sutter, Tehama, Trinity, Tuolumne, Yolo and Yuba. Terms of the district court for the northern district shall be held at San Francisco on the first Monday in March, the second Monday in July, and the first Monday in November; at Sacramento on the second Monday in April; and at Eureka on the third Monday in July. (5 Fed. Stats. Ann., 2d ed., p. 555; 2 U. S. Comp. Stats. 1916, 1057.) (Act of June 12, 1916.) 73. (As amended.) That the State of Colorado shall constitute one judicial district, to be known as the district of Colorado. Terms of the THE JUDICIAL CODE. 697 district court shall be held at Denver on the first Tuesday in May and November; at Pueblo on the first Tuesday in April; at Grand Junction on the second Tuesday in September; at Montrose on the third Tuesday in September, and at Durango on the fourth Tuesday in September. That the Secretary of the Treasury, in constructing the public build- ings heretofore authorized to be constructed at the cities of Grand Junc- tion and Durango, be, and he is hereby, authorized and empowered to provide accommodations in each of said buildings for postoffice, United States court, and other governmental offices, and the existing authoriza- tions for said buildings be and the same are hereby respectively amended accordingly; and the unexpended balance of all appropriations hereto- fore made for the construction of said buildings and all appropriations which may be provided in any pending legislation, or that hereafter may be made for the construction of said buildings, are hereby made available for the purpose stated in this paragraph: Provided, That if at the time the holding of the terms of said court in any year in either of said cities of Grand Junction and Durango there is no business to be transacted by said court, the term may be adjourned or continued by order of the judge of said court in chambers at Denver, Colorado: And provided further, That the marshal and clerk of said court shall each respectively appoint at least one deputy to reside at and who shall main- tain an office at each of the four said places where said court is to be held by the terms of this Act. 74. (Re-enacting 531, Rev. Stats.) The state of Connecticut shall constitute one judicial district, to be known as the district of Con- necticut. Terms of the district court shall be held at New Haven on the fourth Tuesdays in February and September, and at Hartford on the fourth Tuesday in May and the first Tuesday in December. (5 Fed. Stats. Ann., 2d ed., p. 557; 2 U. S. Comp. Stats. 1916, 1059.) 75. (Re-enacting 531, Rev. Stats.) The state of Delaware shall constitute one judicial district, to be known. as the district of Delaware. Terms of the district court shall be held at Wilmington on the second Tuesdays in March, June, September, and December." (5 Fed. Stats. Ann., 2d ed., p. 557; 2 U. S. Comp. Stats. 1916, 1060. 76. (Re-enacting 534, Rev. Stats.) The state of Florida is di- vided into two districts, to be known as the northern and southern dis- tricts of Florida. The southern district shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Baker, Bradford, Brevard, Citrus, Clay, Columbia, Dade, De Soto, Duva, Hamilton, Hernando, Hillsboro, Lake, Lee, Madison, Man- 698 APPENDIX atee, Marion, Monroe, Nassau, Orange, Osceola, Palm Beach, Pasco, Polk, Putnam, Saint John, Sumter, Suwanee, Saint Lucie, and Volusia. Terms of the district court for the southern district shall be held at Ocala on the third Monday in January; at Tampa on the second Monday in February; at Key West on the first Mondays in May and November; at Jacksonville on the first Monday in December; at Fernandina on the first Monday in April; and at Miami on the fourth Monday in April. The district court for the southern district shall be open at all times for the purpose of hearing and deciding causes of admiralty and maritime jurisdiction. The northern district shall include the territory embraced on the first day oi July, nineteen hundred and ten, in the counties of Alachua, Calhoun, Escambia, Franklin, Gadsden, Holmes, Jackson, Jefferson, Lafayette, Leon, Levy, Liberty, Santa Rosa, Taylor, Wakulla, Walton, and Washington. Terms of the district court for the northern district shall be held at Tallahassee on the second Monday in January; at Pensacola on the first Mondays in May and November; at Marianna on the first Monday in April; and at Gainesville on the second Mondays in June and December. (5 Fed. Stats. Ann., 2d ed., p. 558; 2 U. S. Comp. Stats. 1916, 1061.) 77. (Re-enacting 535, Rev. Stats., as amended March 4, 1913, c. 167.) The state of Georgia is divided into two districts, to be known as the northern and southern districts of Georgia. The northern dis- trict shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Campbell, Carroll, Clayton, Cobb, Coweta, Cherokee, Dekalb, Douglas, Dawson, Fannin, Fayette, Fulton, Forsyth, Gilmer, Gwinnett, Hall, Henry, Lumpkin, Milton, Newton, Pickens, Rockdale, Spalding, Towns, and Union, which shall constitute the northern division of said district; also the territory em- braced on the date last mentioned in the counties of Banks, Clarke, Elbert, Franklin, Greene, Habersham, Hart, Jackson, Morgan, Madison, Oglethorpe, Oconee, Rabun, Stephens, Walton, and White, which shall constitute the eastern division of said district; also the territory embraced on the date last mentioned in the counties of Chattahoochee, Clay, Early, Harris, Heard, Meriwether, Marion, Muscogee, Quitman, Randolph, Schley, Stewart, Talbot, Taylor, Terrell, Troup, and Web- ster, which shall constitute the western division of said district; also the territory embraced on the date last mentioned in the counties of Bartow, Chattooga, Catoosa, Dade, Floyd, Gordon, Haralson, Murray, Paulding, Polk, Walker, and Whitfield, which shall constitute the north- western division of said district. Terms of the district court for northern division of said district shall be held at Atlanta on the second THE JUDICIAL OODB. 699 Monday in March and the first Monday in October and at Gainesville on the fourth Mondays in April and November, and it shall be the duty of the judge to assign such cases, both civil and criminal, as may in his judgment be most convenient to the parties to said cases, and as may be in the interest of economical expenditures by the government; for the eastern division at Athens on the second Monday in April and the first Monday in November; for the western division, at Columbus on the first Mondays in May and December; and for the northwestern division, at Rome on the third Mondays in May and November. The clerk of the court for the northern district shall maintain an office in charge of himself or a deputy at Athens, at Columbus, and at Rome, which shall be kept open at all times for the transaction of the business of the court. The southern district shall include the territory em- braced on the said first day of July, nineteen hundred arid ten, in the counties of Appling, Bulloch, Bryan, Camden, Chatham, Emanuel, Effingham, Glynn, Jeff Davis, Liberty, Montgomery, Mclntosh, Screven, Tatnall, Toombs, and Wayne, which shall constitute the eastern divi- sion of said district; also the territory embraced on the date last men- tioned in the counties of Baldwin, Bibb, Butts, Crawford, Dodge, Dooly, Hancock, Houston, Jasper, Jones, Laurens, Macon, Monroe, Pike, Pulaski, Putnam, Sumter, Telfair, Twiggs, Upson, Wilcox, and Wilkinson, which shall constitute the western division; also the territory embraced on the date last mentioned in the counties of Burke, Columbia, Glascock, Jeffer- son, Jenkins, Johnson, Lincoln, McDuffie, Richmond, Taliaferro, Wash- ington, Wilkes, and Warren, which shall constitute the northeastern division ; also the territory embraced on the date last mentioned in the coun- ties of Berrien, Brooks, Charlton, Clinch, Coffee, Decatur, Echols, Grady, Irwin, Lowndes, Pierce, and Ware^ which shall constitute the south- western division; and also the territory embraced on the date last men- tioned in the counties of Baker, Ben Hill, Calhoun, Crisp, Colquitt, Dougherty, Lee, Miller, Mitchell, Thomas, Tift, Turner, and Worth, which shall constitute the Albany division. Terms of the district court for the western division shall be held at Macon on the first Mondays in May and October; for the eastern division, at Savannah on the second Tuesdays in February, May, August, and November; for the northeastern division, at Augusta on the first Monday in April and the third Monday in Novem- ber; for the southwestern division, at Valdosta on the second Mondays in June and December; and for the Albany division, at Albany on the third Mondays in June and December. (5 Fed. Stats. Ann., 2d ed., p. 559; 2 U. S. Coinp. Stats. 1916, 1062.) 700 APPENDIX. (Act of March 3, 1915, c. 96.) 1. (Georgia southern district Additional district judge.) That the President of the United States shall appoint an additional district judge for the southern district of the State of Georgia, by and with the consent of the Senate, who shall reside in the said district and shall possess the same qualifications and have the same power and jurisdiction and receive the same salary now prescribed by law in respect of the present district judge therein; Provided, however, That the President shall make public all indorsements made on behalf of the person appointed as such district judge. (38 Stats. 959; 5 Fed. Stats. Ann., 2d ed., p. 1092.) 2. (Vacancy in office.) That whenever a vacancy shall occur in the office of the district judge for the southern district of the State of Georgia senior in commission such vacancy shall not be filled, and thereafter there shall be but one district judge in said district. (38 Stats. 960; 5 Fed. Stats. Ann., 2d ed., p. 1092.) (Act of March 3, 1915, c. 98.) (Georgia northern district Boundaries enlarged.) That the county of Barrow, in the State of Georgia, is hereby attached to and made a part of the eastern division of the northern judicial district of said State. (38 Stats. 960; 5 Fed. Stats. Ann., 2d ed., p. 1092; 2 U. S. Comp. Stats. 1916, 1062a.) (Act of March 3, 1915, c. 99.) 1. (Georgia southern district Eastern division Boundaries en- larged.) That the counties of Candler, Jenkins, and Evans, in the State of Georgia, are hereby attached to and made a part of the eastern divi- sion of the southern judicial district of said State. (38 Stats. 960; 5 Fed. Stats. Ann., 2d ed., p. 1092; 2 U. S. Comp. Stats. 1916, 1062b.) 2. (Southwestern division Boundaries enlarged.) That the coun- ties of Bacon and Thomas, in the State of Georgia, are hereby attached to and made a part of the southwestern division of the southern judicial district of said State. (38 Stats. 961; 5 Fed. Stats, Ann., 2d ed., p. 1093; 2 U. S. Comp. Stats., 1916, 1062c.) 78. (Re-enacting 26 Stats. 217; 27 Stats. 72; 28 Stats. 5; 30 Stats. 423.) The state of Idaho shall constitute one judicial district, to be known as the district of Idaho. It is divided into four divisions, to be known as the northern, central, southern, and eastern divisions. The territory embraced on the first day of July, nineteen hundred and ten, in THE JUDICIAL CODE. 701 the counties of Bonner, Kootenai, and Shoshone, shall constitute the north- ern division of said district; and the territory embraced on the date last mentioned in the counties of Idaho, Latah, and Nez Perce, shall con- stitute the central division of said district ; and the territory embraced on the date last mentioned in the counties of Ada, Boise, Elaine, Cassia, Twin Falls, Canyon, Elmore, Lincoln, Owyhee, and Washington, shall constitute the southern division of said district; and the territory em- braced on the date last mentioned in the counties of Bannock, Bear Lake, Bingham, Custer, Fremont, Lemhi, and Oneida, shall constitute the eastern division of said district. Terms of the district court for the northern division of said district shall be held at Coeur d'Alene City on the fourth Monday in May and the third Monday in Novem- ber; for the central division, at Moscow on the second Monday in May and the first Monday in November; for the southern division, at Boise City on the second Mondays in February and September; and for the eastern division, at Pocatello on the second Mondays in March and Octo- ber. The clerk of the court shall maintain an office in charge of himself or a deputy at Coeur d'Alene City, at Moscow, at Boise City, and at Pocatello, which shall be open at all times for the transaction of the busi- ness of the court. (5 Fed. Stats. Ann., 2d ed., p. 560; 2 U. S. Comp. Stats. 1916, 1063.) 79. (Re-enacting 536, Rev. Stats.) The state of Illinois is di- vided into three districts, to be known as the northern, southern, and eastern districts of Illinois. The northern district shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Cook, Dekalb, Dupage, Grundy, Kane, Kendall, Lake, Lasalle, McHenry, and Will, which shall constitute the eastern division; also the territory embraced on the date last mentioned in the counties of Boone, Carroll, Jo Daviess, Lee, Ogle, Stephenson, Whiteside, and Winnebago, which shall constitute the western division. Terms of the district court for the eastern division shall be held at Chicago on the first Mondays in February, March, April, May, June, July, September, October, and November, and the third Monday in December; and for the western division, at Freeport on the third Mondays in April and October. The clerk of the court for the north- ern district shall maintain an office in charge of himself or a deputy at Chicago and at Freeport, which shall be kept open at all times for the transaction of the business of the court. The marshal for the northern district shall maintain an office in the division in which he himself does not reside, and shall appoint at least one deputy who shall reside therein. The southern district shall include the territory 702 APPENDIX. embraced on the first day of July, nineteen hundred and ten, in the counties of Bureau, Fulton, Henderson, Henry, Knox, Livingston, Mc- Donough, Marshall, Mercer, Putnam, Peoria, Rock Island, Stark, Taze- well, Warren, and Woodford, which shall constitute the northern divi- sion; also the territory embraced on the date last mentioned in the counties of Adams, Bond, Brown, Calhoun, Cass, Christian, Dewitt, Greene, Hancock, Jersey, Logan, McLean, Macon, Macoupin, Madison, Mason, Menard, Montgomery, Morgan, Pike, Sangamon, Schuyler, and Scott, which shall constitute the southern division. Terms of the dis- trict court for the northern division shall be held at Peoria on the third Mondays in April and October; for the southern division at Springfield on the first Mondays in January and June, and at Quincy on the first Mondays in March and September. The clerk of the court for the southern district shall maintain an office in charge of himself or a deputy at Peoria, at Springfield, and at Quincy, which shall be kept jopen at all times for the transaction of the business of the court. The marshal for said southern district shall appoint at least one deputy residing in the said northern district who shall maintain an office at Peoria. The eastern district shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Alexander, Champaign, Clark, Clay, Clinton, Coles, Crawford, Cumber- land, Douglas, Edgar, Edwards, Effingham, Fayette, Ford, Franklin, Gallatin, Hamilton, Hardin, Iroquois, Jackson, Jasper, Jefferson, John- son, Kankakee, Lawrence, Marion, Massac, Monroe, Moultrie, Perry, ,Piatt, Pope, Pulaski, Randolph, Richland, Saint Clair, Saline, Shelby, .Union, Vermilion, Wabash, Washington, Wayne, White, and William- son. Terms of the district court for the eastern district shall be held at Danville on the first Mondays in March and September; at Cairo on the first Mondays in April and October; and at -East Saint Louis on the first Mondays in May and November. The clerk of the court for the eastern district shall maintain an office in charge of himself or a deputy at Danville, at Cairo, and at East Saint Louis, which shall be kept open at all times for the transaction of the business of the court, and shall there keep the records, files, and documents pertaining to the court at that place. (5 Fed. Stats. Ann., 2d ed., p. 561; 2 U. S. Comp. Stats. 1916, 1064.) 80. (Re-enacting 531, Rev. Stats.) The state of Indiana shall constitute one judicial district, to be known as the district of Indiana. Terms of the district court shall be held at Indianapolis on the first Tuesdays in May and November; at New Albany on the first Mondays in January and July; at Evansville on the first Mondays in April and THE JUDICIAL CODE. 703 October; at Fort Wayne on the second Tuesdays in June and Dec-ember; and at Hammond on the third Tuesdays in April and October. The clerk of the court shall appoint four deputy clerks, one of whom shall reside and keep his office at New Albany, one at Evansville, one at Fort Wayne, and one at Hammond. Each deputy shall keep in his office full records of all actions and proceedings of the district court held at that place. (5 Fed. Stats. Ann., 2d ed., p. 562; 2 U. S. Comp. Stats. 1916, 1065.) 81. (As amended Act of April 27, 1916.) The State of Iowa is divided into two judicial districts, to be known as the northern and southern districts of Iowa. The northern district shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Allamakee, Dubuque, Buchanan, Clayton, Delaware, Fayette, Winneshiek, Howard, Chickasaw, Bremer, Blackhawk, Floyd, Mitchell, and Jackson, which shall constitute the eastern division of said district; also the territory embraced on the date last mentioned in the counties of Jones, Cedar, Linn, Iowa, Benton, Tama, Grundy, and Hardin, which shall constitute the Cedar Rapids division ; also the territory embraced on the date last mentioned in the counties of Emmet, Palo Alto, Pocahontas, Calhoun, Carroll, Kossuth, Humboldt, Webster, Winnebago, Hancock, Wright, Hamilton, Worth, Cerro Gordo, Franklin, and Butler, which shall con- stitute the central division; also the territory embraced on the date last mentioned in the counties of Dickinson, Clay, Bueha Vista, Sac, Osceola, O'Brien, Cherokee, Ida, Lyon, Sioux, Plymouth, Woodbury, and Monona, which shall constitute the western division. Terms of the district court for the eastern division shall be held at Dubuque on the fourth Tuesday in April and the first Tuesday in December, and at Waterloo on the second Tuesdays in May and Sep- tember; for the Cedar Rapids division, at Cedar Rapids on the first Tuesday in April and the fourth Tuesday in September; for the central division, at Fort Dodge on the second Tuesdays in June and November; and for the western division, at Sioux City on the fourth Tuesday in May and the third Tuesday in October. The southern district shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Louisa, Henry, Des Moines, Lee, and Van Buren, which shall constitute the eastern division of said district; also -the territory embraced on the date last mentioned in the counties of Marshall, Story, Boone, Greene, Guthrie, Dallas, Polk, Jasper. Poweshiek, Marion, Warren, and Madi- son, which shall constitute the central division of said district; also 704: APPENDIX. the territory embraced on the date last mentioned in the counties of Crawford, Harrison, Shelby, Audubon, Cass, Pottawattamie, Mills, and Montgomery, which shall constitute the western division of said district; also the territory embraced on the date last mentioned in the counties of Adair, Adams, Clarke, Decatur, Fremont, Lucas, Page, Ringgold, Taylor, Union, and Wayne, which shall constitute the south- ern division of said district; also the territory embraced on the date last mentioned in the counties of Scott, Muscatine, Washington, John- son, and Clinton, which shall constitute the Davenport division of said district; also the territory embraced on the date last mentioned in the counties of Davis, Appanoose, Mahaska, Keokuk, Jefferson, Monroe, and Wapello, which shall constitute the Ottumwa division of said district. Terms of the district court for the eastern division shall be held at Keokuk on the sixth Tuesday after the fourth Tuesday in February and the eighth Tuesday after the third Tuesday in September; for the central division, at Des Moines on the tenth Tuesday after the fourth Tuesday in February and the tenth Tuesday after the third Tuesday in September; for the western division, at Council Bluffs on the fourth Tuesday in February and the sixth Tuesday after the third Tuesday in September; for the southern division, at Creston on the fourth Tues- day after the fourth Tuesday in February and the third Tuesday in September; for the Davenport division, at Davenport on the eighth Tuesday after the fourth Tuesday in February and the second Tues- day after the third Tuesday in September; and for the Ottumwa divi- sion, at Ottumwa on the second Tuesday after the fourth Tuesday in February and the fourth Tuesday after the third Tuesday in September. The clerk of the court for said district shall maintain an office in charge of himself or a deputy at Davenport and at Ottumwa for the transaction of the business of said divisions. (Pamphlet Supp. Fed. Stats. Ann., No. 8, p. 13 et seq., title, "Judiciary.") 82. (As amended Act of September 6, 1916.) That the State of Kansas shall constitute one judicial district, to be known as the dis- trict of Kansas. It is divided into three divisions, to be known as. the first, second, and third divisions of the district of Kansas. The first division shall include the territory embraced -on the first day of July, nineteen hundred and ten, in the counties of Atchison, Brown, Chase, Cheyenne, Clay, Cloud, Decatur, Dickinson, Doniphan, Douglas, Ellis, Franklin, Geary, Gove, Graham, Jackson, Jefferson, Jewell, John- son, Leavenworth, Lincoln, Logan, Lyon, Marion, Marshall, Mitchell, THE JUDICIAL CODE. 705 Morris, Nemaha, Norton, Osage, Osborne, Ottawa, Phillips, Pottawa- tomic, Rawlins, Republic, Riley, Rooks, Russell, Saline, Shawnee, Sheridan, Sherman, Smith, Thomas, Trego, Wabaunsee, Wallace, Washington, and Wyandotte. The second division shall include the territory embraced on the date last mentioned in the counties of Bar- ber, Barton, Butler, Clark, Comanche, Cowley, Edwards. Ellsworth, Finney, Ford, Grant, Gray, Greeley, Hamilton, Harper, Harvey, Hodge- man, Haskell, Kingman, Kiowa, Kearny, Lane, McPherson, Morton, Meade, Ness, Pratt, Pawnee, Reno, Rice, Rush, Scott, Sedgwick, Staf- ford, Stevens, Seward, Sumner, Stanton, and Wichita. The third division shall include the territory embraced on the said date last men- tioned in the counties of Allen, Anderson, Bourbon, Cherokee, Coffey, Chautauqua, Crawford, Elk, Greenwood, Labette, Linn, Miami, Mont- gomery, Neosho, Wilson, and Woodson. Terms of the district court for the first division shall be held at Leavenworth on the second Monday in October; at'Topeka on the second Monday in April; at Kansas City on the second Monday in January and the first Monday in October; and at Salina on the second Monday in May ; terms of the district court for the second division shall be held at Wichita on the second Mondays in March and September; and for the third division, at Fort Scott on the first Monday in May and the second Monday in November. The clerk of the district court shall appoint three deputies, one of whom shall reside and keep his office at Fort Scott, one at Wichita, and the other at Salina, and the marshal shall appoint a deputy who shall re- side and keep his office at Fort Scott and the marshal shall also appoint a deputy, who shall reside and keep his office at Kansas City. 83 (Re-enacting 531, Rev. Stats.). The state of Kentucky is divided into two districts, to be known as the eastern and western districts of Kentucky. The eastern district shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Carroll, Trimble, Henry, Shelby, Anderson, Mercer, Boyle, Gallatin, Boone, Kenton, Campbell, Pendleton, Grant, Owen, Franklin, Bourbon, Scott, Woodford, Fayette, Jessamine, Garrard, Madison, Lincoln, Rock- castle, Pulaski, Wayne, Whitley, Bell, Knox, Harlan, Laurel, Clay, Leslie, Letcher, Perry, Owsley, Jackson, Estill, Lee, Breathitt, Knott, Pike, Floyd, Magoffin, Martin, Johnson, Lawrence, Boyd, Greenup, Carter, Elliott, Morgan, Wolfe, Powell, Menifee, Clark, Montgomery, Bath, Rowan, Lewis, Fleming, Mason, Bracken, Robertson, Nicholas, and Harrison, with the waters thereof. Terms of the district court for the eastern district shall be held at Frankfort on the second Monday in March and the fourth Monday in September; at Covington on the first Monday in April and the Manual 45 706 APPENDIX. third Monday in October; at Richmond on the fourth Monday in April and the second Monday in November; at London on the second Monday in May and the fourth Monday in November ; at Catlettsburg on the fourth Monday in May and the second Monday in December; and at Jackson on the first Monday in March and the third Monday in September: Provided, That suitable rooms and accommodations are furnished for holding court at Jackson, free of expense to the government until such time as a public building shall be erected there. The western district shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Oldham, Jefferson, Spencer, Bullitt, Nelson, Washington, Marion, Larue, Taylor, Cassey, Green, Adair, Russell, Clinton, Cumber- land, Monrpe, Metcalfe, Allen, Barren, Simpson, Logan, Warren, Butler, Hart, Edmonson, Grayson, Hardin, Meade, Breckinridge, Hancock, Daviess, Ohio, McLean, Muhlenberg, Todd, Christian, Trigg, Lyon, Cald- well, Livingston, Crittenden, Hopkins, Webster, Henderson, Union, Mar- shall, Galloway,. McCracken, Graves, Ballard, Carlisle, Hickman, and Ful- ton, with the waters thereof. Terms of the district court for the western district shall be held at Louisville on the second Mondays in March and October; at Owensboro on the first Monday in May and the fourth Monday in November; at Paducah on the third Mondays in April and November; and at Bowling Green on the third Monday in May and the second Monday in December. The clerk of the court for the eastern district shall main- tain an office in charge of himself or a deputy at Frankfort, at Covington, at Richmond, at London, at Catlettsburg, and at Jackson; and the clerk for the western district shall maintain an office in charge of himself or a deputy at Louisville, at Owensboro, at Paducah, and at Bowling Green, each of which offices shall be kept open at all times for the transaction of the business of said court. The clerks of the courts for the eastern and western districts, upon issuing original process in a civil action, shall make it returnable to the court nearest to the county of the residence of the defendant, or of that defendant whose county is nearest to a court, and shall, immediately upon payment by the plaintiff of his fees accrued, send the papers filed to the clerk of the court to which the process is made returnable; and whenever the process is not thus made returnable, any defendant may, upon motion, on or before the calling of the cause, have it transferred to the court to which it should have' been sent had the clerk known the residence of the defendant when the action was brought. (5 Fed. Stats. Ann., 2d ed., p. 566; 2 U. S. Comp. Stats. 1916, 1068.) 84 (Re-enacting Act of March 3, 1881, c. 144 with amendments thereto). The state of Louisiana is divided into two judicial districts, to be known as the eastern and western districts of Louisiana. The eastern district shall in- THE JUDICIAL, CODE. 707 elude the territory embraced on the first day of July, nineteen hundred and ten, in the parishes of Assumption, Iberia, Jefferson, Lafourche, Orleans, Plaquemines, Saint Bernard, Saint Charles, Saint James, Saint John the Baptist, Saint Mary, Saint Tammany, Tangipahoa, Terrebonne, and Washington, which shall constitute the New Orleans division; also the territory embraced on the date last mentioned in the parishes of Ascension, East Baton Rouge, East Feliciana, Livingston, Pointe Coupee, Saint Helena, West Baton Rouge, Iberville, and West Feliciana, which shall constitute the Baton Rouge division of said district. Terms of the district court for the New Orleans division shall be held at New Orleans on the third Mondays in February, May, and November; and for the Baton Rouge division, at Baton Rouge on the second Mondays in April and November. The clerk of the court for the eastern district shall maintain an office in charge of himself or a deputy at New Orleans and at Baton Rouge which shall be kept open at all times for the transaction of the business of the court. The western district shall include the territory embraced on the first day of July, nineteen hundred and ten, in the par- ishes of Saint Landry, Evangeline, Saint Martin, Lafayette, and Ver- milion, which shall constitute the Opelousas division of said district; also the territory embraced on the date last mentioned in the parishes of Rapides, Avoyelles, Catahoula, La Salle, Grant, and Winn, which shall constitute the Alexandria division of said district; also the territory em- braced on the said date last mentioned in the parishes of Caddo, De Soto, Bossier, Webster, Claiborne, Bienville, Natchitoches, Sabine, and Red River, which shall constitute the Shreveport division of said district; also the territory embraced on the date last mentioned in the parishes of Oua- chita, Franklin, Richland, Morehouse, East Carroll, West Carroll, Madison, Tensas, Concordia, Union, Caldwell, Jackson, and Lincoln, which shall constitute the Monroe division of said district; also the territory embraced on the date last mentioned in the parishes of Acadia, Calcasieu, Cameron, and Vernon, which shall constitute the Lake Charles division of said dis- trict. Terms of the district court for the Opelousas division shall be held at Opelousas on the first Mondays in January and June; for the Alexan- dria division, at Alexandria on the fourth Mondays in January and June; for the Shreveport division, at Shreveport on the third Mondays in Febru- ary and October; for the Monroe division, at Monroe on the first Mondays in April and October; and for the Lake Charles division, at Lake Charles on the third Mondays in May and December. The clerk of the court for the western district shall maintain an office in charge of himself or a deputy at Opelousas, at Alexandria, at Shreveport, at Monroe, and at Lake Charles, which shall be kept open at all times for the transaction of 708 APPENDIX. the business of the court. (5 Fed. Stats. Ann., 2d ed., p. 568; 2 U. S. Comp. Stats. 1916, 1069.) 85 (Re-enacting 531, Rev. Stats.). The state of Maine shall con- stitute one judicial district, to be known as the district of Maine. Terms of the district court shall be held at the times and places following: At Portland, on the first Tuesday in April, on the third Tuesday in Septem- ber, and on the second Tuesday in December; at Bangor, on the first Tues- day in June : Provided, however, That in the year nineteen hundred and twelve a session shall be also held at Portland on the first Tuesday in February. (5 Fed. Stats. Ann., 2d ed., p. 569; 2 U. S. Comp. Stats. 1916, 1070.) Act Sept. 8, 1916, c. 475. 1. [Maine judicial district Sessions of court "Division of dis- trict.] That hereafter, and until otherwise provided by law, two sessions of the United States District Court for the District of Maine shall be held in each and every year in the city of Bangor, in said district, beginning, respectively, on the first Tuesday of February and the first Tuesday of June, and three sessions of said court shall be held in each and every year in the city of Portland, in said district, beginning, respectively, on the first Tuesday of April, on the third Tuesday of September, and on the second Tuesday in December. (2 U. S. Comp. Stats. 1916, 1070a.) 2. [Clerks and marshals.] The clerk of said district court for said district of Maine and the marshal of said district shall each at all times maintain by himself or by deputy an office in charge of himself or deputy, both at said city of Bangor and at said city of Portland. The deputy clerk in charge of the office in the division in which the clerk does not reside himself shall reside in the city where the office of which he has charge is located. That said marshal shall appoint a field deputy, who shall have charge of the office in the division in which the marshal does not reside himself, who shall reside in the city where the office of which he . has charge is located, and who, within and for said division, in the absence of the marshal, shall have all the powers of the marshal, and who shall also, throughout said district of Maine, have all the powers of other deputy marshals. And such field deputy, before he enters on the duties of his office, shall give bond before the judge of said district of like tenor, effect, and amount and of similar form and condition, with like sureties, and to be approved in like manner, as now or may hereafter be required by law of the marshal of said district. (2 U. S. Comp. Stats. 1916, 1070b.) THE JUDICIAL CODE. 709 3. [Divisions Number Boundaries.] That for the purpose of hold- ing terms of the United States district court the district of Maine as heretofore constituted shall be divided into two divisions, to be known, respectively, as the northern and southern divisions. The counties of Aroostook, Penobscot, Piscataquis, Washington, Hancock, Waldo, and Somerset shall be known as the northern division, the court for which shall be held in the said city of Bangor. The remaining counties in said State and district of Maine shall constitute the southern division, the court for which shall be held in the said city of Portland. (2 U. S. Comp. Stats. 1916, 1070c.) 4. [Jurisdiction and venue Divisions as separate districts.] That for the purpose of determining the jurisdiction and venue of all causes, suits, actions, bills, petitions, matters, libels, proceedings, prosecutions, in- dictments, complaints, informations, and other judicial business, whether civil or criminal, or whether in equity, in admiralty, in prize, in forfeiture, or in condemnation, in rem, in personam, or mixed, whatsoever, cognizable in the United States district court, each of said divisions shall be as if it were a separate and distinct judicial district of the United States. There shall be but one judge, one clerk, one marshal, and one district attorney for said district of Maine. United States commissioners in either of said divisions, until otherwise provided by law, shall be appointed and have jurisdiction and cognizance through said district of Maine in the same manner and to the same extent and effect that they now have under exist- ing law. (2 U. S. Comp. Stats. 1916, 1070d.) 5. [Transfer of causes from one division to another.] That any cause, suit, action, bill, petition, matter, libel, proceeding, prosecution, in- dictment, complaint, information, or other judicial business, whether civil or criminal, or whether in equity, in admiralty, in prize, in forfeiture, or in condemnation, in rem, in personam, or mixed, whatsoever, pending in either of said divisions, when all the parties thereto so stipulate in writ- ing, and where the ends of justice or the convenience of the parties will be promoted thereby, may, at the discretion of the court or judge, be transferred wholly or specially for the hearing, trial, or determination of any single proceeding, matter, step, or motion therein from one of said divisions to the other. On request of all accused in any criminal prosecu- tion and of all claimants in any cause, proceeding, libel, information, or other matter in rem, the same may be transferred, at the discretion of the court or judge from one of said divisions to the division in which a term of said court is next to be held, without the joinder in such request 710 APPENDIX. of the United States when the Government is the only other party thereto not joining in such request. (2 U. S. Comp. Stats. 1916, 1070e.) 6. [Ex parte, etc., proceedings Hearings by consent.] That all ex parte, of course, default and pro confesso, proceedings and matters, and all interlocutory matters in which all interested parties are present and consenting that such hearing may be had, in whichever of said divisions the same may be cognizable or pending, may be heard and determined by the court or judge and all findings, orders, judgments, and decrees be made, and all mesne and final process therein be tested, sealed, issued, and renewed in either of said divisions, in term time, vacation, or chambers. (2 U. S. Comp. Stats. 1916, lOTOf.) 7. [Change of venue Continuance.] That nothing in this Act con- tained shall be construed to deprive the court or judge of the power to grant a change of venue or continuance in any cause, proceeding, or mat- ter whatsoever according to law and the requirements of justice. (2 U. S. Comp. Stats. 1916, lOTOg.) 8. [Time of taking effect of Act Inconsistent Acts.] That this Act shall take effect on the day following its passage, but it shall not apply to or in any wise affect any cause, suit, action, bill, petition, matter, libel, proceeding, prosecution, indictment, complaint, information, stipulation, bail bond, or recognizance now pending in said court, or which has already been instituted, begun, filed, entered, made, served, found, or taken, but the same shall depend, be entered, returned, continued, prosecuted, tried, heard, and determined and suitable and appropriate orders, judgment, de- crees, and executions, mesne and final and all other process, attachment, monitions, stipulations, bonds, recognizances therein, shall be made, signed, tested, sealed, issued, renewed, served, executed, entered, and returned, the same as under existing law and as if this Act had never been passed, ex- cept for the purposes mentioned in sections five and six of this Act. All Acts and parts of Acts inconsistent with this Act are hereby repealed. (2 U. S. Comp. Stats. 1916, 1070h.) 86 (Re-enacting 531, Rev. Stats.). The state of Maryland shall constitute one judicial district, to be known as the district of Maryland. Terms of the district court shall be held at Baltimore on the first Tuesdays in March, June, September, and December; and at Cumberland on the second Monday in May and the last Monday in September. The clerk of the court shall appoint a deputy who shall reside and maintain an office at Cumberland, unless the clerk shall himself reside there ; and- the marshal shall also appoint a deputy who shall reside and maintain an THE JUDICIAL CODB. 711 office at Cumberland, unless he shall himself reside there. (5 Fed. Stats. Ann., 2d ed., p. 569; 2 U. S. Gomp. Stats, 1916, 1071.) 87 (Re-enacting 531, Rev. Stats.). The state of Massachusetts shall constitute one judicial district, to be known as the district of Massa- chusetts. Terms of the district court shall be held at Boston on the third Tuesday in March, the fourth Tuesday in June, the second Tuesday in September, and the first Tuesday in December; and at Springfield, on the second Tuesdays in May and December: Provided, That suitable rooms and accommodations for holding court at Springfield shall be fur- nished free of expense to the government until such time as a Federal building shall be erected there for that purpose. The marshal and the clerk for said district shall each appoint at least one deputy, to reside in Springfield and to maintain an office at that place. (5 Fed. Stats. Ann., 2d ed., p. 570; 2 U. S. Comp. Stats. 1916, 1072.) 88 (R*-enacting 538, Rev. Stats.), as Amended Act July 9, 1912, c. 222. The state of Michigan is divided into two judicial districts, to be known as the eastern and western districts of Michigan. The eastern district shall include the territory embraced on the first day of July, nine- teen hundred and ten, in the counties of Alcona, Alpena, Arenac, Bay, Cheboygan, Clare, Crawford, Genesee, Gladwin, Gratiot, Huron, losco, Isabella, Midland, Montmorency, Ogemaw, Oscoda, Otsego, Presque Isle, Roscommon, Saginaw, Shiawassee, and Tuscola, which shall constitute the northern division; also the territory embraced on the date last men- tioned in the counties of Branch, Calhoun, Clinton, Hillsdale, Ingham, Jackson, Lapeer, Lenawee, Livingston, Macomb, Monroe, Oakland, St. Clair, Sanilac, Washtenaw, and Wayne, which shall constitute the southern division of said district. Terms of the district court for the southern division shall be held at Detroit on the first Tuesdays in March, June and November; for the northern division, at Bay City on the first Tues- days in May and October, and at Port Huron in the discretion of the judge of said court and at such times as he shall appoint therefor. There shall also be held a special or adjourned term of the district court at Bay City for the hearing of admiralty causes, beginning in the month of February in each year. The western district shall include the ter- ritory embraced on the first day of July, nineteen hundred and ten, in the counties of Alger, Baraga, Chippewa, Delta, Dickinson, Gogebic, Houg-hton, Iron, Keweenaw, Luce, Mackinac, Marquette, Menominee, Ontonagon, and Bchoolcraft, which shall constitute the northern division; also the territory embraced on the said date last mentioned in the coun- ties of Allegan, Antrim, Barry, Benzie, Berrien, Cass, Charlevoix, Eaton, 712 APPENDIX. Emmet, Grand Traverse, Ionia, Kalamazoo, Kalkaska, Kent, Lake, Lee- lanau, Manistee, Mason, Mecosta, Missaukee, Montcalm, Muske^on, Newaygo, Oceana, Osceola, Ottawa, St. Joseph, Van Buren, and Wexford, which shall constitute the southern division of said district. Terms of the district court for the western district of Michigan for the southern division shall be held at Grand Rapids, commencing on the first Tuesdays in March, June, October, and December; and for the northern division at Marquette, -commencing on the first Tuesdays in April and September ; and at Sault Sainte Marie, commencing on the second Tuesdays in Janu- ary and July. (Terms for Western district of Southern Division, 37 Stats. 190, 5 Fed. Stats. Ann., 2d ed., p. 1093.) All issues of fact shall be tried at the terms in the division where such suit shall be commenced. Actions in rem and admiralty may be brought in whichever division of the eastern district service can be had upon the res. -Nothing herein contained shall prevent the district court of the western division from regulating, by gen- eral rule, the venue of transitory actions either at law or in equity, or from changing the same for cause. The clerk of the court for the western district shall reside and keep his office at Grand Rapids, and shall also appoint a deputy clerk for said court held at Marquette, who shall reside and keep his office at that place. The marshal for said western district shall keep an office and a deputy marshal at Marquette. The clerk of the court for the eastern district shall keep his office at the city of Detroit, and shall appoint a deputy for the court held at Bay City, who shall reside and keep his office at that place. The marshal for said district shall keep an office and a deputy marshal at Bay City, and mileage on service of process in said northern division shall be computed from Bay City. (5 Fed. Stats. Ann., 2d ed., p. 570; 2 U. S. Comp. Stats. 1916, 1073.) 89 (Re-enacting 531, Rev. Stats.). The state of Minnesota shall constitute one judicial district, to be known as the district of Minnesota. It is divided into six divisions, to be known as the first, second, third, fourth, fifth, and sixth divisions. The first division shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Winona, Wabasha, Olmsted, Dodge, Steele, Mower, Fillmore, and Houston. The second division shall include the territory embraced on the date last mentioned in the counties of Freeborn, Fari- bault, Martin, Jackson, Nobles, Rock, Pipestone, Murray, Cottonwood, Watonwan, Blue Earth, Waseca, Lesueur, Nicollet, Brown, Redwood, Lyon, Lincoln, Yellow Medicine, Sibley, and Lac qui Parle. The third division shall include the territory embraced on the date last mentioned in the counties of Chisago, Washing-ton, Ramsey, Dakota, Goodhue, Rice, and Scott. The fourth division shall include the territory embraced on THE JUDICIAL CODE. 713 the date last mentioned in the counties of Hennepin, Wright, Meeker, Kandiyohi, Swift, Chippewa, Renville, McLeod, Carver, Anoka, Sher- burne, and Isanti. The fifth division shall include the territory embraced on the date last mentioned in the counties of Cook, Lake, Saint Louis, Itasca, Koochiching, Cass, Crow Wing, Aitkin, Carlton, Pine, Kanabec, Mille Lacs, Morrison, and Benton. The sixth division shall include the territory embraced on the date last mentioned in the counties of Stearns, Pope, Stevens, Bigstone, Traverse, Grant, Douglas, Todd, Ottertail, Roseau, Wilkin, Clay, Becker, Wadena, Norman, Polk, Red Lake, Mar- shall, Kittson, Beltrami, Clearwater, Mahnomen, and Hubbard. Terms of the district court for the first division shall be held at Winona on the third Tuesdays in May and November; for the second division, at Man- kato on the fourth Tuesdays in April and October; for the third division, at Saint Paul on the first Tuesdays in June and December; for the fourth division, at Minneapolis on the first Tuesdays in April and October; for the fifth division, at Duluth on the second Tuesdays in January and July; and for the sixth division, at Fergus Falls on the first Tuesday in May and second Tuesday in November. The clerk of the court shall appoint a deputy clerk at each place where the court is now required to be held at which the clerk shall not himself reside, who shall keep his office and reside at the place appointed for the holding of said court. (5 Fed. Stats. Ann., 2d ed., p. 571; 2 U. S. Comp. Stats. 1916, 1075.) 90 (Re-enacting Act June 15, 1882, c. 218), as Amended Act May 27, 1912, c. 136. The state of Mississippi is divided into two judicial districts, to be known as the northern and southern districts of Mississippi. The northern district shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Alcorn, Attala, Chickasaw, Choctaw, Clay, Itawamba, Lee, Lowndes, Monroe, Oktibbeha, Pontotoc, Prentiss, Tishomingo, and Winston, which shall constitute the eastern division of said district; also the territory embraced on the date last mentioned in the counties of Benton, Calhoun, Carroll, De Soto, Grenada, Lafayette, Marshall, Montgomery, Panola, Tate, Tippah, Union, Webster, and Yalobusha, which shall constitute the western division of said district. Also the territory embraced on the date last mentioned in the counties of Bolivar, Coahoma, Leflore, Quitman, Sunflower, Talla- hatchie, and Tunica, which shall constitute the Delta division of said district. The terms of the district court for the eastern division shall be held at Aberdeen on the first Mondays in April and October; and for the western division, at Oxford on the first Mondays in June and December, and for the Delta division at Clarksdale on the fourth Mon- days in January and July; Provided, That suitable rooms and accom- 714 APPENDIX. modations for holding court at Clarksdale are furnished free of ex- pense to the United States. The southern district shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Adams, Amite, Copiah, Covington, Franklin, Hinds, Holmes, Jefferson, Jefferson Davis, Lawrence, Lincoln, Madison, Pike, Rankin, Simpson, Smith, Scott, Wilkinson, and Yazoo, which shall con- stitute the Jackson division; also the territory embraced on the date last mentioned in the counties of Claiborne, Issaquena, Sharkey, Warren, and Washington, which shall constitute the western division; also the ter- ritory embraced on the date last mentioned in the counties of Clarke, Jones, Jasper, Kemper, Lauderdale, Leake, Neshoba, Newton, Noxubee, and Wayne, which shall constitute the eastern division; also the territory embraced on the date last mentioned in the counties of Forrest, Greene, Hancock, Harrison, Jackson, Lamar, Marion, Perry, and Pearl River, which shall constitute the southern division of said district. Terms of the district court for the Jackson division shall be held at Jackson on the first Mondays in May and November; for the western division, at Vicks- burg on the first Mondays in January and July; for the eastern division, at Meridian on the second Mondays in March and September; and for the southern division, at Biloxi on the third Mondays in February and August. The clerk of the court for each district shall maintain an office in charge of himself or a deputy at each place in his district at which fcourt is now required to be held, at which he shall not himself reside, which shall be kept open at all times for the transaction of the business of the court. The marshal for each of said districts shall maintain an office in charge of himself or a deputy at each place of holding court in his district. (5 Fed. Stats. Ann., 2d ed., p. 572; 2 U. S. Comp. Stats. 1916, 1076.) 91 (Re-enacting Act of Feb. 28, 1887, c. 271, as Amended Act Dec. 22, 1911, c. 8). The state of Missouri is divided into two judicial districts, to be known as the eastern and western districts of Missouri. The eastern dis- trict shall include the territory embraced on the first day of July, nineteen hundred and ten, in the city of Saint Louis and the counties of Audrain, Crawford, Dent, Franklin, Gasconade, Iron, Jefferson, Lincoln, Maries, Montgomery, Phelps, Saint Charles, Saint Francois, Sainte Genevieve, Saint Louis, Warren, and Washington, which shall constitute the eastern division of said district; also the territory embraced on the date last men- tioned in the counties of Adair, Chariton, Clark, Knox, Lewis, Linn, Macon, Marion, Monroe, Pike, Rails, Randolph, Schuyler, Scotland, and Shelby, which shall constitute the northern division of said district; also the terri- tory embraced on the date last mentioned in the counties of Bellinger, But- THE JUDICIAL CODE. 715 ler, Cape Girardeau, Carter, Dunklin, Madison, Mississippi, New Madrid, Pemiscot, Perry, Reynolds, Ripley, Scott, Shannon, Stoddard, and Wayne, which shall constitute the southeastern division of said district. Terms of the district court for the eastern division shall be held at Saint Louis on the third Mondays in March and September, and at Rolla on the second Mondays in January and June: Provided, That suitable rooms and accommodations for holding court at Rolla are furnished free of expense to the United States; for the northern division, at Hannibal on the fourth Monday in May and the first Monday in December; and for the south- eastern division, at Cape Girardeau on the second Mondays in April and October. The western district shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Bates, Caldwell, Carroll, Cass, Clay, Grundy, Henry, Jackson, Johnson, Lafayette, Livingston, Mercer, Putnam, Ray, Saint Clair, Saline, and Sullivan, which shall constitute the western division; also the territory embraced on the date last mentioned in the counties of Barton, Barry, Jasper, Lawrence, McDonald, Newton, Stone, and Vernon, which shall constitute the south- western division ; also the territory embraced on the date last mentioned in the counties at Andrew, Atchison, Buchanan, Clinton, Daviess, Dekalb, Gentry, Holt, Harrison, Nodaway, Platte, and Worth, which shall con- stitute the Saint Joseph division ; also the territory embraced on the date last mentioned in the counties of Benton, Boone, Callaway, Cooper, Camden, Cole, Hickory, Howard, Miller, Moniteau, Morgan, Osage, and* Pettis, which shall constitute the central division; also the territory em- braced on the date last mentioned in the counties of Christian/ Cedar, Dade, Dallas, Douglas, Greene, Howell, Laclede, Oregon, Ozard, Polk, Pulaski, Taney, Texas, Webster, and Wright, which shall constitute the southern division. Terms of the district court for the western division shall be held at Kansas City on the fourth Monday in April and the first Monday in November, and at Chillicothe on the fourth Monday in May and the first Monday in December: Provided, That suitable rooms and accommodations for holding court at Chillicothe are furnished free of expense to the United States; for the southwestern division, at Joplin on the second Mondays in June and January; for the Saint Joseph division, at Saint Joseph on the first Monday in March and third Monday in Sep- tember; for the central division, at Jefferson City on the third Mondays in March and October; and for the southern division, at Springfield on the first Mondays in April and October. The clerk of the court at Saint Louis in the eastern district shall maintain an office in charge of himself or a deputy at Saint Louis and Hannibal, and at such other places of holding court in said district as may be deemed necessary to the judge, 716 APPENDIX. which shall be kept open at all times for the transaction of the business of the court. The clerk of the court for the western district shall main- tain an office in charge of himself or a deputy at Kansas City, at Jeffer- son City, at Saint Joseph, at Chillicothe, at Joplin, and at Springfield, which shall be kept open at all times for the transaction of the business of the court. The marshal for each district shall also maintain an office in charge of himself or a deputy at each place at which court is now held in his district. (5 Fed. Stats. Ann., 2d ed., p. 574; 2 U. S. Comp. Stats. 1916, 1077.) 92 (Re-enacting 25 Stats. 628). The state of Montana shall con- stitute one judicial district to be known as the district of Montana. Terms of the district court shall be held at Helena on the first Mondays in April and November; at Butte on the first Tuesdays in February and Septem- ber; at Great Falls on the first Mondays in May and October; at Missoula on the first Mondays in January and June; and at Billings on the first Mondays in March and August. Causes, civil and criminal, may be transferred by the court or judge thereof from Helena to Butte or from Butte to Helena, or from Helena or Butte to Great Falls, or from Great Falls to Helena or Butte, in said district, when the convenience of the parties or the ends of justice would be promoted by the transfer; and any interlocutory order may be made by the court or judge thereof in either place. (5 Fed. Stats. Ann., 2d ed., 575; 2 U. S. Comp. Stats. 1916, 1078.) 93 ^ (Re-enacting 531, Rev. Stats.). The state of Nebraska shall constitute one judicial district, to be known as the district of Nebraska. Said district is divided into eight divisions. The territory embraced on the first day of July, nineteen hundred and ten, in the counties of Douglas, Sarpy, Washington, Dodge, Colfax, Platte, Nance, Boone, Wheeler, Burt, Thurston, Dakota, Cuming, Cedar, and Dixon, shall con- stitute the Omaha division; the territory embraced on the date last men- tioned in the counties of Madison, Antelope, Knox, Pierce, Stanton, Wayne, Holt, Boyd, Rock, Brown, and Keya Paha, shall constitute the Norfolk division; the territory embraced on the date last mentioned in the coun- ties of Cherry, Sheridan, Dawes, Box Butte, and Sioux, shall constitute the Chadron division; the territory embraced on the date last mentioned in the counties of Hall, Merrick, Howard, Greeley, Garfield, Valley, Sher- man, Buffalo, Custer, Loup, Blaine, Thomas, Hooker, and Grant, shall constitute the Grand Island division ; the territory embraced on the date last mentioned in the counties of Lincoln, Dawson, Logan, McPherson, Keith, Deuel, Garden, Morrill, Cheyenne, Kimball, Banner, and Scott's THE JUDICIAL CODE. 717 Bluff, shall constitute the North Platte division; the territory embraced on the date last mentioned in the counties of Cass, Otoe, Johnson, Nemalia, Pawnee, Richardson, Gage, Lancaster, Saunders, Butler, Seward, Saline, Jefferson, Thayer, Fillmore, York, Polk, and Hamilton, shall constitute the Lincoln division ; the territory embraced on the. date last mentioned in the counties of Clay, Nuckolls, Webster, Adams, Kearney, Franklin, Harlan, and Phelps, shall constitute the Hastings division ; and the ter- ritory embraced on the date last mentioned in the counties of Gosper, Furnas, Red Willow, Frontier, Hayes, Hitchcock, Dundy, Chase, and Perkins, shall constitute the McCook division. Terms of the district court for the Omaha division shall be held at Omaha on the first Monday in April and the fourth Monday in September; for the Norfolk division, at Norfolk on the third Monday in September; for the Chadron division, at Chadron on the second Monday in September; for the Grand Island division, at Grand Island on the second Monday in January, for the North Platte division, at North Platte on the second Monday in June; for the Lincoln division, at Lincoln on the second Monday in May and the first Monday in October; for the Hastings division, at Hastings on the second Monday in March ; and for the McCook division, at McCook on the first Monday in March : Provided, That where provision is made herein for holding court at places where there are no Federal buildings, a suit- able room Jn which to hold court, together with light and heat, shall be provided by the city or county where such court is held, without any expense to the United States. The clerk of the court shall appoint a deputy for each division of the district in which he does not himself reside, who shall keep his office and reside at the place of holding court in the division for which he is appointed. (5 Fed. Stats. Ann., 2d ed., p. 576; 2 U. S. Comp. Stats. 1916, 1079.) 94 (Re-enacting 531, Rev. Stats.). The state of Nevada shall con- stitute one judicial district, to be known as the district of Nevada. Terms of the district court shall be held at Carson City on the first Mondays in February, May, and October. (5 Fed. Stats. Ann., 2d ed., .p. 577; 2 U. S. Comp. Stats. 1916, 1080.) 95 (Re-enacting 531, Rev. Stats.), as Amended Act August 23, 1912, c. 344. "The state of New Hampshire shall constitute one judicial dis- trict, to be known as the district of New Hampshire. Terms of the dis- trict court shall be held at Portsmouth on the last Tuesday in October; at Concord on the last Tuesday in April and second Tuesday in December ; and at Littleton on the third Tuesday in September. (5 Fed. Stats. Ann., 2d ed., p. 577; 2 U. S. Comp. Stats. 1916, 1081.) 718 APPENDIX. 96 (Re-enacting 531, Rev. Stats.), as Amended Act Feb. 14, 1913, c. 53. The state of New Jersey shall constitute one judicial district, to be known as the district of New Jersey. Terms of the district court shall be held at Newark on the first Tuesday in April and the first Tuesday in November; and at Trenton on the third Tuesday in January and the second Tuesday in September of each year. The clerk of the court for the district of New Jersey shall maintain an office, in charge of himself or a deputy, at Newark and at Trenton, each of which offices shall be kept open at all times for the transaction of the business of the court; and the marshal shall also maintain an office, in charge of himself or a deputy, at Newark and at Trenton, each of which offices shall be kept open at all times for the transaction of the business of the court. (5 Fed. Stats. Ann., 2d ed., p. 577; 2 U. S. Comp. Stats. 1916, 1082.) 1, Act of April 11, 1916. (New Jersey judicial district Additional judge Residence, etc.) That the President of the United States be, and he hereby is, authorized and directed, by and with the advice and consent of the Senate, to appoint an additional judge of the district court of the United States for the district of New Jersey, who shall reside in said district, and whose term of office, compensation, duties, and powers shall be the same as now provided by law for the judge of said district. (Pamphlet Supp. Fed. Stats. Ann., title "Judiciary," No. 7, p. 13.) 2. That this Act shall take effect immediately. , 13, Act June 20, 1910, c. 310. That the state, when admitted as aforesaid, shall constitute one judicial district, and the circuit and dis- trict courts of said district shall be held at the capital of said state, and the said district shall, for judicial purposes, be attached to the eighth judicial circuit. There shall be appointed for said district one district judge, one United States attorney, and one United States marshal. The judge of said district shall receive a yearly salary the same as other similar judges of the United States, payable as provided for by law, and shall reside in the district to which he is appointed. There shall be appointed clerks of said courts, who shall keep their offices at the capital of said state. The regular terms of said courts shall be held on the first Monday in April and the first Monday in October of each year. The circuit and district courts for said district, and the judges thereof, respectively, shall possess the same powers and jurisdiction and perform the same duties required to be performed by the other circuit and district courts and judges of the United States, and shall be governed by the same laws and regulations. The marshal, district attorney, and the clerks of the THE JUDICIAL CODE. 719 circuit and district courts of said district, and all other officers and persons performing duties in the administration of justice therein, shall severally possess the powers and perform the duties lawfully possessed and required to be performed by similar officers in other districts of the United States, and shall, for the services they may perform, receive the fees and com- pensation now allowed by law to officers performing similar services for the United States in the Territory of New Mexico. (36 Stats. 565; 5 Fed. Stats. Ann., 2d ed., p. 1094; 2 U. S. Comp. Stats. 1916, 1083.) 97 (Drawn from 597, 599, Rev. Stats.). The state of New York is divided into four judicial districts, to be known as .the northern, eastern, southern, and western districts of New York. The northern district shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Albany, Broome, Cayuga, Chenango, Clinton, Cortland, Delaware, Essex, Franklin, Fulton, Hamilton, Herkimer, Jef- ferson, Lewis, Madison, Montgomery, Oneida, Onondaga, Oswego, Otsego, Rensselaer, Saint Lawrence, Saratoga, Schenectady, Schoharie, Tioga, Tompkins, "Warren, and "Washington, with the waters thereof. Terms of the district court for said district shall be held at Albany on the second Tuesday in February; at Utica on the first Tuesday in December; at Binghamton on the second Tuesday in June; at Auburn on the first Tues- day in October; at Syracuse on the first Tuesday in April; and, in the discretion of the judge of the court, one term annually at such time and place within the counties of Saratoga, Onondaga, Saint Lawrence, Clinton, Jefferson, Oswego, and Franklin, as he may from time to time appoint. Such appointment shall be made by notice of at least twenty days pub- lished in a newspaper published at the place where said court is to be held. The eastern district shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Richmond, Kings, Queens, Nassau, and Suffolk, with the waters thereof. Terms of the district court for said district shall be held at Brooklyn on the first Wednesday in every month. The southern district shall include the ter- ritory embraced on the first day of July, nineteen hundred and ten, in the counties of Columbia, Dutchess, Greene, New York, Orange, Putnam, Rockland, Sullivan, Ulster, and Westchester, with the waters thereof. Terms of the district court for said district shall be held at New York city on the first Tuesday in each month. The district courts of the south- ern and eastern districts shall have concurrent jurisdiction over the waters within the counties of New York, Kings, Queens, Nassau, Richmond, and Suffolk, and over all seizures made and all matters done in such waters; all processes or orders issued within either of said courts or by any judge thereof shall run and be executed in any part of said waters. The western 720 APPENDIX. district shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Allegany, Cattaraugus, Chau- tauqua, Chemung, Erie, Genesee, Livingston, Monroe, Niagara, Ontario, Orleans, Schuyler, Seneca, Steuben, Wayne, Wyoming, and Yates, with the waters thereof. Terms of the district court for said district shall be held at Elmira on the second Tuesday in January; at Buffalo on the second Tuesdays in March and November; at Rochester on the second Tuesday in May; at Jamestown on the second Tuesday in July; at Lock- port on the second Tuesday in October; and at Canandaigua on the second Tuesday in September. The regular sessions of the district court for the western district for the hearing of motions and for proceedings in bankruptcy and the trial of causes in admiralty, shall be held at Buffalo at least two weeks in each month of the year, except August, unless the business is sooner disposed of. The times for holding the same and such other special sessions as the court shall deem necessary shall be fixed by the rules of the court. All process in admiralty causes and proceed- ings shall be made returnable at Buffalo. The judge of any district in the state of New York may perform the duties of the judge of any other district in such state upon the request of any resident judge entered in the minutes of his court; and in such cases such judge shall have the same powers as are vested in the resident judge. (5 Fed. Stats. Ann., 2d ed., p. 578; 2 U. S. Comp. Stats. 1916, 1084.) 98, as Amended Act Oct. 7, 1914, c. 318. The State of North Caro- lina is divided into two districts, to be known as the eastern and western districts of North Carolina. The eastern district shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Beaufort, Bertie, Bladen, Brunswick, Camden, Chatham, Cum berland, Currituck, Craven, Columbus, Chowan, Carteret, Dare, Daplin, Durham, Edgecomb, Franklin, Gates, Granville, Greene, Halifax, Harnett, Hertford, Hyde, Johnston, Jones, Lenoir, Lee, Martin, Moore, Nash, New Hanover, Northampton, Onslow, Pamlico, Pasquotank, Fender, Perqui- mans, Person, Pitt, Robeson, Richmond, Sampson, Scotland, Tyrrell, Vance, Wake, Warren, Washington, Wayne, and Wilson. Terms of the district court for the eastern district shall be held at Laurinburg on the last Mondays in March and September; at Wilson on the first Mondays in April and October; at Elizabeth City on the second Mondays in April and October; at Washington on the third Mondays in April and October; at Newbern on the fourth Mondays in April and October; at Wilmington on the second Monday after the fourth Mondaj's in April and October; and at Raleigh on the fourth Monday after the fourth Mondays in April THE JUDICIAL OODB. 721 and October: Provided, that the city of Washington, the city of Laurin- burg, and the city of Wilson shall each provide and furnish at its own expense a suitable and convenient place for holding the district court at Washington, at Laurinburg, and at Wilson until a courthouse shall be constructed by the United States. The clerk of the court for the eastern district shall maintain an office in charge of himself or a deputy at Raleigh, at Wilmington, at Newbern, at Elizabeth City, at Washington, at Laurinburg, and at Wilson, which shall be kept open at all times for the transaction of the business of the court. The western district shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Alamance, Alex- ander, Ashe, Alleghany, Anson, Buncombe, Burke, Caswell, Cabarrus, Catawba, Cleveland, Caldwell, Clay, Cherokee, Davidson, Davie, Forsyth, Guilford, Gaston, Graham, Henderson, Haywood, Iredell, Jackson, Lincoln, Montgomery, Mecklenburg, Mitchell, McDowell, Madison, Macon, Orange, Polk, Randolph, Rockingham, Rowan, Rutherford, Stanly, Stokes, Surry, Swain, Transylvania, Union, Wilkes, Watauga, Yadkin, and Yancey. Terms of the district court for the western district shall be held in Greens- boro on the first Mondays in June and December; at Statesville on the third Mondays in April and October; at Salisbury on the fourth Mondays in April and October; at Asheville on the first Mondays in May and November; at Charlotte on the first Mondays in April and October; and at Wilkesboro on the fourth Mondays in May and November. The clerk of the court for the western district shall maintain an office in charge of himself or a deputy at Greensboro, at Asheville, at Statesville, and at Wilkesboro, which shall be kept open at all times for the transaction of the business of the court. (38 Stats. 728.) Act of April 27, 1916. (North Carolina eastern judicial district Additional terms.) That two additional terms of the district court, for the trial of civil cases, for the eastern district of North Carolina shall be held at Raleigh, North Carolina, on the first Monday in March and the first Monday in September. (Pamphlet Supp. Fed. Stats. Ann., title, "Judiciary," No. 7, p. 13.) 99, as Amended Act of July 17, 1916, c. 248. That the State of North Dakota shall constitute one judicial district, to be known as the district of North Dakota. The territory embraced on the first day of January, nineteen hundred and sixteen, in the counties of Burleigh, Logan, Mclntosh, Emmons, Kidder, McLean, Adams, Bowman, Dunn, Hettinger, Morton, Stark, Golden Valley, Slope, Sioux, Oliver, Mercer, Billings, and McKenzie shall constitute the southwestern division of said district; and Manual 46 722 APPENDIX. the territory embraced on the date last mentioned in the counties of Cass, Richland, Barnes, Sargent, Ransom, and Steele shall constitute the south- eastern division; and the territory embraced on the date last mentioned in the counties of Grand Forks, Traill, Walsh, Pembina, Cavalier, and Nel- son shall constitute the northeastern division ; and the territory embraced on the date last mentioned in the counties of Ramsey, Benson, Towner, Rolette, Bottineau, Pierce, and McHenry shall constitute the northwestern division ; and the territory embraced on the date last mentioned in the counties of Ward, Williams, Divide, Montrail, Burke, and Renville shall constitute the western division; and the territory embraced on the date last men- tioned in the counties of Griggs, Foster, Eddy, Wells, Sheridan, Stutsman, Lamoure, and Dickey shall ' constitute the central division. The several Indian reservations and parts thereof within said State shall constitute a part of the several divisions within which they are respectively situated. Terms of the district court for the southwestern division shall be held at Bismarck on the first Tuesday in March; for the southeastern division, at Fargo, on the third Tuesday in May; for the northeastern division, at Grand Forks$ on the second Tuesday in November; for the northwestern division, at Devils Lake on the first Tuesday in July; for the western division, at Minot on the second Tuesday in October; and for the central division, at Jamestown on the second Tuesday in April. The clerk of the court shall maintain an office in charge of himself or a deputy at each place at which court is held in his district : Provided, That the Government of the United States shall incur no expense for rent, light, heat, water, or janitor service for the building in which court shall be held until such time as the Government may erect its own court room." (Fed. Stats. Ann., 2d ed., 1918 Supp., title, "Judiciary," Painph. Supp. No. 8, October, 1916, p. 129; 2 U. S. Comp. Stats. 1916, 1086, p. 1258.) 100, as Amended Act of March 4, 1915, c. 159. The State of Ohio is divided into two judicial districts, to be known as the northern and southern districts of Ohio. The northern district shall include the terri- tory embraced on the first day of July, nineteen hundred and ten, in the counties of Ashland, Ashtabula, Cuyahoga, Carroll, Columbiana, Craw- ford, Geauga, Holmes, Lake, Lorain, Medina, Mahoning, Portage, Rich- land, Summit, Stark, Tuscarawas, Trumbull and Wayne, which shall con- stitute the eastern division; also the territory embraced on the date last mentioned in the counties of Auglaize, Allen, Defiance, Erie, Fulton, Henry, Hancock, Hardin, Huron, Lacas, Mercer, Marion, Ottawa, Pauld- ing, Putnam, Seneca, Sandusky, Van Wert, Williams, Wood, and Wyan- dot, which shall constitute the western division of said district. Terms THE JUDICIAL CODE. 723 of the district court for the eastern division shall be held at Cleveland on the first Tuesdays in February, April, and October, and at Youngstown on the first Tuesday after the first Monday in March; and for the western division, at Toledo on the last Tuesdays in April and October. Grand and petit jurors summoned for service at a term of court to be held at Cleveland may, if in the opinion of the court the public convenience so requires, be directed to serve also at the term then being held or author- ized to be held at Youngstown. Crimes and offenses committed in the eastern division shall be cognizable at the terms held at Cleveland or at Youngstown, as the court may direct. Any suit brought in the eastern division may, in the discretion of the court, be tried at the term held at Youngstown. The southern district shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Adams, Brown, Butler, Champaign, Clark, Clermont, Clinton, Darke, Green, Hamilton, Highland, Lawrence, Miami, Montgomery, Preble, Scioto, Shelby, and Warren, which shall constitute the western division; also the territory embraced on the date last mentioned in the counties of Athens, Belmont, Coshocton, Delaware, Fairfield, Fayette, Franklin, Gallia, Guern- sey, Harrison, Hocking, Jackson, Jefferson, Knox, Licking, Logan, Madi- son, Meigs, Monroe, Morgan, Morrow, Muskingum, Noble, Perry, Pickaway, Pike, Ross, Union, Vinton, and Washington, which shall constitute the eastern division of said district. Terms of the district court for the western division shall be held at Cincinnati on the first Tuesdays in Feb- ruary, April, and October; and for the eastern division at Columbus on the first Tuesdays in June and December, and at Steubenville on the first Tuesdays of March and September. Grand and petit jurors summoned for service at a term of court being held at Columbus may, if in the opinion of the court the public convenience so requires, be directed to serve also at the term being held or authorized to be held at Steubenville. Crimes and offenses committed in the eastern division shall be cognizable at the terms held at Columbus, or at Steubenville, as the court may direct. Any suit brought in the eastern division may, in the discretion of the court, be tried at the term held at Steubenville: Provided, That suitable rooms and accommodations for holding court at Steubenville shall be fur- nished free of expense to the Government until the completion of the Federal building; And provided further, That terms of the district court for the southern district shall be held at Dayton on the first Mondays in May and November. Prosecutions for crimes and offenses committed in any part q said district shall also be cognizable at the terms held at Dayton. All suits which may be brought within the southern district, or either division thereof, may be instituted, tried, and determined at the 724 APPENDIX. terms held at Dayton. (38 Stats. 1187; 2 U. S. Comp. Stats. 1916, 1087.) 101, as Amended Act Feb. 20, 1917, c. 102. The State of Oklahoma is divided into two judicial districts, to be known as the eastern and west- ern districts of Oklahoma. The eastern district shall include the territory embraced on the first day of July, nineteen hundred and sixteen, in the counties of Adair, Atoka, Bryant, Craig, Cherokee, Creek, Choctaw, Coal, Carter, Delaware, Garvin, Grady, Haskell, Hughes, Johnston, Jefferson, Latimer, Le Flore, Love, McClain, Mayes, Muskogee, Mclntosh, McCurtain, Murray, Marshall, Nowata, Ottawa, Okmulgee, Okfuskee, Pittsburg, Push- mataha, Pontotoc, Rogers, Stephens, Sequoyah, Seminole, Tulsa, Wash- ington, and Wagoner. Terms of the district court for the eastern district shall be held at Muskogee on the first Monday in January; at Vinita, on the first Monday in March; at Tulsa, on the first Monday in April; at South McAlester, on the first Monday in June, at Ardmore, on the first Monday in October; and at Chickasha, on the first Monday in November in each year. The western district shall include the territory embraced on the first day of July, nineteen hundred and sixteen, in the counties of Alfalfa, Beaver, Beckham, Blaine, Caddo, Canadian, Cimarron, Cleve- land, Comanche, Custer, Dewey, Ellis, Garfield, Grant, Greer, Harmon, Harper, Jackson, Kay, Kingfisher, Kiowa, Lincoln, Logan, Major, Noble, Oklahoma, Osage, Pawnee, Payne, Pottawatomie, Roger Mills, Texas, Tillman, Washita, Woods, and Woodward. Terms of the district court for the western district shall be held at Guthrie on the first Monday in January; at Oklahoma City, on the first Monday in March; at Enid, on the first Monday in June; at Lawton, on the first Monday in September; and at Woodward, on the first Monday in November: Provided, That suit- able rooms and accommodations for holding court at Woodward are fur- nished free of expense to the United States. The clerk of the district court for the eastern district shall keep his office at Muskogee and the clerk for the western district at Guthrie, and shall maintain an office in charge of himself or a deputy at Oklahoma City. (Fed. Stats. Ann., 2d ed., Pamphlet Supp. Nos. 9-10, January-April, 1917, pp. 64, 65, 1918 Supp., title, "Judiciary," Supp. 2 U. S. Comp. Stats. 1916, 1088, Adv. Sheets 239, Fed. No. 1, p. 57.) 102 (Re-enacting 531, Rev. Stats.). The state of Oregon shall constitute one judicial district, to be known as the district of Oregon. Terms of the district court shall be held at Portland on the first Mondays in March, July, and November; at Pendleton on the first Tuesday in April; and at Medford on the first Tuesday in October. The marshal and the THE JUDICIAL CODE. 725 clerk for said district shall each appoint, in the manner provided by law, at least one deputy at Pendleton and one. at Medford, who shall reside and maintain an office at each of said places. (5 Fed. Stats. Ann., 2d ed., p. 585; 2 U. S. Comp. Stats. 1916, 1089.) 103, as Amended Act of Sept. 9, 1914, c. 296. That the State of Pennsylvania is divided into three judicial districts, to be known as the eastern, middle, and western districts of Pennsylvania. The eastern dis- trict shall include the territory embraced on the first day of July, nine- teen hundred and ten, in the counties of Berks, Bucks, Chester, Delaware, Lancaster, Lehigh, Montgomery, Northampton, Philadelphia, and Schnyl- kill. Terms of the district court shall be held at Philadelphia on the second Mondays in March and June, the third Monday in September, and the second Monday in December, each term to continue until the suc- ceeding term begins. The middle district shall include the territory em- braced on the first day of July, nineteen hundred and ten, in the counties of Adams, Bradford, Cameron, Carbon, Center, Clinton, Columbia, Cum- berland, Dauphin, Franklin, Fulton, Huntingdon, Juniata, Lackawanna, Lebanon, Luzerne, Lycoming, Mifflin, Monroe, Montour, Northumberland, Perry, Pike, Potter, Snyder, Sullivan, Susquehanna, Tioga, Union, Wayne, Wyoming, and York. Terms of the district court shall be held at Scran - ton on the second Monday in March and the third Monday in October; at Harrisburg on the first Mondays in May and December; at Sunbury on the second Monday in January; and at Williamsport on the first Mon- day in June. The clerk of the court for the middle district shall maintain an office, in charge of himself or a deputy, at Harrisburg; the civil suits instituted at that place shall be tried there, if either party resides nearest that place of holding court, unless by consent of parties they are removed to another place for trial. The western district shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Allegheny, Armstrong, Beaver, Bedford, Blair. Butler, Cambria, Clarion, Clearfield, Crawford, Elk, Erie, Fayette, Forest. Greene, Indiana, Jefferson, Lawrence, McKean, Mercer, Somerset. Ven- ango, Warren, Washington, and Westmoreland. Terms of the district court shall be held at Pittsburgh on the first Monday of May and the second Monday of November, and terms of the court shall be held at Erie on the third Monday of March and the third Monday of September. The clerk and marshal of said district shall have their principal offices at Pittsburgh, and shall maintain, by themselves or by their deputies, offices at Erie. The clerk shall place all cases in which the defendants reside in the counties of said district nearest Erie upon the trial list for trial at Erie, 726 APPENDIX. where the same shall be tried, unless the parties thereto stipulate that the same may be tried at Pittsburgh. (38 Stats. 713; 5 Fed. Stats. Ann., 2d ed., p. 585; 2 U. S. Comp. Stats. 1916, 1090.) 104 (Re-enacting 531, Rev. Stats., as Amended Feb. 1, 1912, c. 27.) The state of Rhode Island shall constitute one judicial district, to be known as the district of Rhode Island; terms of the district court shall be held at Providence on the fourth Tuesday in May and the third Tuesday in November. (5 Fed. Stats. Ann., 2d ed., p. 586; 2 U. S. Comp. Stats. 1916, 1091.) 105 (Re-enacting 546, Rev. Stats., as Amended February 5, 1912, c. 28.) The state of South Carolina is divided into two districts, to be known as the eastern and western districts of South Carolina. The west- ern district shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Abbeville, Anderson, Chero- kee, Chester, Edgefield, Fairfield, Greenville, Greenwood, Lancaster, Lau- rens, Newberry, Oconee, Pickens, Saluda, Spartanburg, Union, and York. Terms of the district court for the western district shall be held at Green- ville on the third Tuesdays in April and October. The eastern district shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Aiken, Bamberg, Barnwell, Beaufort, Berkeley, Calhoun, Charleston, Chesterfield, Clarendon, Colleton, Darling- ton, Dillon, Dorchester, Florence, Georgetown, Hampton, Horry, Kershaw,' Lee, Lexington, Marion, Marlboro, Orangeburg, Richland, Sumter, and Williamsburg. Terms of the district court for the eastern district shall be held at Charleston on the first Tuesdays in June and December; at Columbia on the third Tuesday in January and the first Tuesday in Novem- ber, the latter term to be solely for the trial of civil cases; and at Florence on the first Tuesday in March. The offices of the clerk of the district court shall be at Greenville, and at Charleston; and the clerk shall reside in one of said cities and have a deputy in the other. (5 Fed. Stats. Ann., 2d ed., p. 587; 2 U. S. Comp. Stats. 1916, 1092.) Act of March 3, 1915, c. 100, 1. 1. (South Carolina districts Additional district judge.) That there shall be a district judge for the eastern district of South Carolina and a district judge for the western district of South Carolina, who shall be appointed as district judges are appointed in other judicial districts of the United States: Provided, That the President, previous to appointing said judge, shall make public all indorsements of the applicants for said THE JUDICIAL CODE. 727 position. The present district judge, who is a resident of the eastern district of South Carolina, is hereby assigned to said eastern district as the district judge thereof. (38 Stats. 961; 1 U. S. Cemp. Stats. 1916, 968e. 2. (Pending causes By whom heard.) That all causes of a civil nature and motions therein submitted and all causes and proceedings of a civil nature, including proceedings in bankruptcy, now pending in the western district of South Carolina in which the evidence has been taken in whole or in part before the present district judge for the eastern and western districts of South Carolina, or taken in whole or in part and submitted to and passed upon by the said district judge, shall be retained by said judge and proceeded with and disposed of by said judge, who may for that purpose continue to exercise jurisdiction in the said western district. (38 Stats. 961; 1 U. S. Comp. Stats. 1916, 968f.) 3. (Additional district attorney.) That there shall be a district attorney for the eastern district of South Carolina and a district attorney for the western district of South Carolina, who shall be appointed as dis- trict attorneys are appointed in other judicial districts of the United States. The district attorney for the eastern district of South Carolina and the district attorney for the western district of, South Carolina shal' each receive an annual salary of $4,500. The present district attorney, who is a resident of the eastern district of South Carolina, is hereby assigned to said eastern district as the district attorney thereof. (38 Stats. 961; 2 U. S. Comp. Stats. 1916, 1362a.) 4. (Additional marshal.) That there shall be a marshal for the eastern district of South Carolina and a marshal for the western district of South Carolina, who shall be appointed as marshals are appointed in other judicial districts of the United States. The marshal for the eastern district of South Carolina and the marshal for the western district of South Carolina shall each receive an annual salary of $4,500. The present marshal, who is a resident of the eastern district of South Carolina, is hereby assigned to said eastern district as the marshal thereof. (38 Stats. 961; 2 U. S. Comp. Stats. 1916, 1362b.) 5 as Amended Act Sept. 1, 1916, c. 434. (Terms Office of clerk.) That terms of the district court for the eastern district shall be held at Charleston on the first Tuesdays in June and December; at Columbia on the third Tuesday in January, and first Tuesday in November; at Florence, first Tuesday in March; and at Aiken, on the first Tuesday in April and October, Terms of the district court of the western district shall be held /28 APPENDIX. at Greenville on the first Tuesday in April and the first Tuesday in October; at Rock Hill, the second Tuesday in March and September; and at Green- wood, the first Tuesday in February and November; and at Anderson, the fourth Tuesday in May and November. The office of the clerk of the dis- trict court for the western district shall be at Greenville and the office of the clerk of the district court for the eastern district shall be at Charleston. (38 Stats. 961; 2 U. S. Comp. Stats. 1916, 1092a.) 106 (Re : enacting act of November 3, 1893, c. 10). The state of South Dakota shall constitute one judicial district, to be known as the district of South Dakota. The territory embraced on the first day of July, nineteen hundred and ten, in the counties of Aurora, BeadJe, Bon Homme, Brookings, Brule, Charles Mix, Clay, Davison, Douglas, Gregory, Hanson, Hutchinson, Kingsbury, Lake, Lincoln, McCook, Miner, Minne- haha, Moody, Sanborn, Turner, Union, and Yankton, and in the Yankton Indian reservation, shall constitute the southern division of said district; the territory embraced on the date last mentioned in the counties^ of Brown, Campbell, Clark, Codington, Corson, Day, Deuel, Edmunds, Grant, Hamlin, McPherson, Marshall, Roberts, Schnasse, Spink, and Walworth, and in the Sisseton and Wahpeton Indian reservation, and in that portion of the Standing Rock Indian reservation lying in South Dakota, shall constitute the northern division; the territory embraced on the date last mentioned in the counties of Armstrong, Buffalo, Dewey, Faulk, Hand, Hughes, Hyde, Jerauld, Lyman, Potter, Stanley, and Sully, and in the Cheyenne River, Lower Brule, and Crow Creek Indian reservations, shall constitute the central division; and the territory embraced on the date last mentioned in the counties of Bennett, Butte, Custer, Fall River, Hard- ing, Lawrence, Meade, Mellette, Pennington, Perkins, Shannon, Todd. Tripp, Washabaugh, and Washington, and in the Rosebud and Pine Ridge Indian reservations, shall constitute the western division. Terms of the district court for the southern division shall be held at Sioux Falls on the first Tuesday in April and the third Tuesday in October; for th6 northern division, at Aberdeen on the first Tuesday in May and the second Tuesday in November; for the central division, at Pierre on the second Tuesday in June and the first Tuesday in October; and for the western division, at Deadwood on the third Tuesday in May and the first Tuesday in Sep- tember. The clerk of the district court shall maintain an office in charge of himself or a deputy at Sioux Falls, at Pierre, at Aberdeen, and at Deadwood, which shall be kept open for the transaction of the business of the court. (5 Fed. Stats. Ann., 2d ed., p. 588; 2 U. S. Comp. Stats. 1916, 1093.) THE JUDICIAL CODE. 729 107. (Re-enacting 547, Rev. Stats.), as Amended Act August 20, 1912, c. 306. The state of Tennessee is divided into three districts, to be known as the eastern, middle, and western districts of Tennessee. The i-Mstcni district shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Bledsoe, Bradley, Ham- ilton, James, McMinn,* Marion, Meigs, Polk, Rhea, and Sequatchie, which shall constitute the southern division of said district; also the territory embraced on the date last mentioned in the counties of Anderson, Blount, Campbell, Claiborne, Grainger, Jefferson, Knox, Loudon, Monroe, Morgan, Roane, Sevier, Scott, and Union, which shall constitute the northern division of said district; also the territory embraced on the date last mentioned in the counties of Carter, Cocke, Greene, Hamblen, Hancock, Hawkins, Johnson, Sullivan, Unicoi, and Washington, which shall con- stitute the northeastern division of said district. Terms of the district court for the southern division of said district shall be held at Chatta- nooga on the fourth Monday in April and the second Monday in Novem- ber; for the northern division, at Knoxville on the fourth Monday in May and the first Monday in December; and for the northeastern division, at Greeneville on the first Monday in March and the third Monday in September. The middle district shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Bedford, Cannon, Cheatham, Coffee, Davidson, Dickson, Franklin, Giles, Grundy, Hickman, Humphreys, Houston, Lawrence, Lewis, Lincoln, Marshall, Maury, Montgomery, Moore, Robertson, Rutherford, Stewart, Sumner, Trousdale, Warren, Wayne, Williamson, and Wilson, which shall constitute the Nashville division of said district; also the territory em braced on the date last mentioned in the counties of Clay, Cumberland, Dekalb, Fentress, Jackson, Macon, Overton, Pickett, Putnam, Smith, Van Buren, and White, which shall constitute the northeastern division of said district. Terms of the district court for the Nashville division of said district shall be held at Nashville on 'the second Monday in March and the fourth Monday in September; and for the northeastern division, at Cookcville on the third Monday in April and the first Monday in Novem- ber: Provided, That suitable accommodations for holding court at Cooke- ville shall be provided by the county or municipal authorities without expense to the United States. The western district shall include the ter- ritory embraced on the first day of July, nineteen hundred and ten, in the counties of Dyer, Fayette, Haywood, Lauderdale, Shelby, and Tipton, which shall constitute the western division of said district; also the terri- tory embraced on the date last mentioned 'in the counties of Benton, Carroll, Chester, Crockett, Decatur, Gibson, Hardeman, Hardin, Hender- 730 APPENDIX. son, Henry, Lake, McNairy, Madison, Obion, Perry, and Weakley, in- cluding the waters of the Tennessee River to low-water mark on the eastern shore thereof wherever such river forms the boundary line between the western and middle districts of Tennessee, from the north line of the state of Alabama north to the point in Henry county, Tennessee, where the south boundary line of the state of Kentucky strikes the east bank of the river, which shall constitute the eastern division of said district. Terms of the district court for the western division of said district shall be held at Memphis on the fourth Mondays in May and November; and for the eastern division, at Jackson on the fourth Mondays in April and October. The clerk of the court for the western district shall appoint a deputy who shall reside at Jackson. The marshal for the western district shall appoint a deputy who shall reside at Jackson. The marshal for the eastern district shall appoint a deputy who shall reside at Chatta- nooga. The clerk of the court for the eastern district shall maintain an office in charge of himself or a deputy at Knoxville, at Chattanooga and at Greenville, which shall be kept open at all times for the transaction of the business of the court." (Fed. Stats. Ann., 2d ed., p. 589; 2 U. S. Comp. Stats. 1916, 1094.) 108 (Re-enacting act of March 11, 1902, c. 183). "The state of Texas is divided into four districts to be known as the northern, eastern, western, and southern districts of Texas. The northern district shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Dallas, Ellis, Hunt, Johnson, Kaufman, Nav- arro, and Rockwall, which shall constitute the Dallas division ; also the territory embraced on the date last mentioned in the counties of Archer, Baylor, Clay, Comanche, Erath, Foard, Hardeman, Hood, Jack, Palo Pinto, Parker, Tarrant, Wichita, Wilbarger, Wise, and Young, which shall constitute the Fort Worth division; also the territory embraced on the date last mentioned in the counties of Armstrong, Bailey, Briscoe, Carson, Castro, Childress, Cochran, Collingsworth, Cottle, Crosby, Dallam, Deaf Smith, Dickens, Donley, Floyd, Gray, Hale, Hall, Hansford, Hart- ley, Hemphill, Hockley, Hutchinson, King, Lamb, Lipscomb, Lubbock, Moore, Motley, Ochiltree, Oldham, Farmer, Potter, Randall, Roberts, Sherman, Swisher, and Wheeler, which shall constitute the Amarillo divi- sion ; also the territory embraced on the date last mentioned in the counties of Andrews, Borden, Callahan, Dawson, Eastland, Fisher, Gaines, Garza, Haskell, Howard, Jones, Kent, Knox, Lynn, Martin, Midland, Mitchell, Nolan, Scurry, Shackelford, Stephens, Stonewall, Taylor, Terry, Throck- morton, and Yoakuni, which shall constitute the Abilene division; also the territory embraced on the date last mentioned in the counties of Brown, THE JUDICIAL COD* 731 Coke, Coleman, Concho, Crockett, Glasscock, Irion, Menard, Mills, Run- nels, Schleicher, Sterling, Sutton, Tom Greene, and Upton, which shall constitute the San Angelo division of the said district. Terms of the district court for the Dallas division shall be held at Dallas on the second Monday in January and the first Monday in May; for the Fort Worth division, at Fort Worth on the first Monday in November and the second Monday in March; for the Amarillo division, at Amarillo on the third Monday in April and the fourth Monday in September; for the Abilene division, at Abilene on the first Monday in October and the second Monday in April; and for the San Angelo division, at San Angelo on the third Monday in October and the fourth Monday in April. The clerk of the court for the northern district shall maintain an office in charge of him- self or a deputy at Dallas, at Fort Worth, at Amarillo, at Abilene, and at San Angelo, which shall be kept open at all times for the transaction of the business of the court. The eastern district shall include the territory embraced on the first day of July, nineteen hundred and ten, in the coun- ties of Anderson, Angelina, Cherokee, Gregg, Henderson, Houston, Nacogdoches, Panola, Rains, Rusk, Smith, Van Zandt, and Wood, which shall constitute the Tyler division; also the territory embraced on the date last mentioned in the counties of Hardin, Jasper, Jefferson, Liberty, Newton, Orange, Sabine, San Augustine, Shelby, and Tyler, which shall constitute the Beaumont division; also the territory embraced on the date last mentioned in the counties of Collin, Cook, Denton, Grayson, and Montague, which shall constitute the Sherman division; also the territory embraced on the date last mentioned in the counties of Camp, Cass, Har- rison, Hopkins, Marion, Morris and Upshur, which shall constitute the Jefferson division; also the territory embraced on the date last mentioned in the counties of Delta, Fannin, Red River, and Lamar, which shall con- stitute the Paris division ; also the territory embraced on the date last mentioned in the counties of Bowie, Franklin, and Titus, which shall constitute the Texarkana division. Terms of the district court for the Tyler division shall be held at Tyler on the fourth Mondays in January and April; for the Jefferson division, at Jefferson on the first Monday in October and the third Monday in February; for the Beaumont division, at Beaumont on the third Monday in November and the first Monday in April ; for the Sherman division, at Sherman on the first Monday in January and the third Monday in May; for the Paris division, at Paris on the third Monday in October and the first Monday in March; and for the Texarkana division, at Texarkana on the third Monday in March and the first Monday in November. The clerk of the court for the eastern district shall maintain an office in charge of himself or a deputy at Sher- 732 APPENDIX. man, at Beaumont, and at Texarkana, which shall he kept open at all times for the transaction of the business of said court. The western district [see amendment below] shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Bastrop, Blanco, Burleson, Burnet, Caldwell, Gillespie, Hays, Kimble, Lampasas, Lee, Llano, Mason, McCulloch, San Saba, Travis, Washington, and Will- iamson, which shall constitute the Austin division; also the territory embraced on the date last mentioned in the counties of Atascosa, Bandera, Bexar, Comal, Dimmit, Edwards, Frio, Gonzales, Guadalupe, Karnes, Kendall, Kerr, Medina, and Wilson, which shall constitute the San Antonio division; also the territory embraced on the date last mentioned in the counties of Brewster, Crane, Ector, El Paso, Jeff Davis, Loving, Reeves, Presidio, Ward, and Winkler, which shall constitute the El Paso division; also the territory embraced on the date last mentioned in the counties of Bell, Bosque, Coryell, Falls, Hamilton, Freestone, Hill, Leon, Limestone, McLennan, Milam, Robertson, and Somervell, which shall constitute the Waco division; also the territory en braced on the date last mentioned in the counties of Kinney, Maverick, Pecos, Terrell, Uvalde, Valverde, and Zavalla, which shall constitute the Del Rio divisioli. Terms of the district court for the Austin division shall be held at Austin on the fourth Monday in January and the second Monday in June; for the Waco division, at Waco on the fourth Monday in February and the second Monday in November; for the San Antonio division, at San Antonio on the first Monday in May and the third Monday in December; for the El Paso division, at El Paso on the first Monday in April and the first Monday in October; and for the Del Rio division, at Del Rio on the third Monday in March and the fourth Monday in October. The clerk of the court for the western district shall maintain an office in charge of him- self or a deputy at Austin, El Paso, and at Del Rio, which shall be kept open at all times for the transaction of business. The southern district [see amendment below] shall include the territory embraced' on the first of July, nineteen hundred and ten, in the counties of Duval, La Salle, MeMullen, Nueces, Webb, and Zapata, which shall constitute the Laredo division; also the territory embraced on the date last mentioned in the counties of Cameron, Hidalgo, and Starr, which shall constitute the Brownsville division ; also the territory embraced on the date last men- tioned in the counties ot Austin, Brazoria, Chambers, Galveston, Fort Bend, Matagorda, and Wharton, which shall constitute the Galveston division ; also the territory embraced on the, date last mentioned in the counties of Brazos, Colorado, Fayette, Grimes, Harris, Lavaca, Madison, Montgomery, Polk, San Jacinto, Trinity, Walker, and Waller, which shall THE JUDICIAL CODE. 733 constitute the Houston division ; also the territory embraced on the date last mentioned in the counties of Bee, Calhoun, Dewitt, Goliad, Jackson, Live Oak, Refugio, Aransas, San Patricio, and Victoria, which shall constitute the Victoria division. Terms of the district court for the Galveston division shall be held at Galveston on the second Monday in January and the first Monday in June; for the Houston division, at Houston on the fourth Mondays in February and September; for the Laredo division, at Laredo on the third Monday in April and the second Monday in November; for the Brownsville division, at Brownsville on the second Monday in May and the first Monday in December; and for the Victoria division, at Victoria on the first Monday in May and the fourth Monday in November. The clerk of the court for the southern district shall maintain an office in charge of himself or a deputy at each of the places now designated for holding court in said district. (2 U. S. Comp. Stats. 1916, 1095.) Act February 5, 1913, c. 28, creates a new division of the western district. That the counties of Reeves, Ward, Martin, Regan, Winkler, Ector, Gaines, Andrews, Upton, Midland, Loving, Jeff Davis, and Crane shall constitute a division of the western judicial district of Texas. (37 Stats. 663; 2 U. S. Comp. Stats. 1916, 1098.) Sec. 2. That terms of the district court of the United States for the said western district of Texas shall be held twice in each year at the city of Pecos, in Reeves county, and that, until otherwise provided by law, the judge of said court shall fix the times at which said court shall be held at Pecos, of which he shall make proclamation and give due notice : Provided, however, That suitable rooms and accommodations shall be fur- nished for the holding of said court and for the use of the officers of said court at Pecos, free of expense to the government of the United States. (2 U. S. Comp. Stats. 1916, 1099.) Act May 29, 1912, c. 144, creates a new division of the southern dis- trict. That the counties of Bee, Live Oak, Aransas, San Patricio, Nueces, Jim Wells, Duval, Brooks, and Willacy shall constitute a division of the southern judicial district of Texas. (37 Stats. 120; 2 U. S. Comp. Stats. 1916, 1096.) "Sec. 2. That terms of the district court of the United States for the said southern district of Texas shall be held twice in each year at the city of Corpus Christi, in Nueces county, and that, until otherwise provided by law, the judge of said court shall fix the times at which said court shall be held at Corpus Christi, of which he shall make publication 734 APPENDIX. and give due notice. (5 Fed. Stats. Ann., 2d ed., p. 1096; 2 U. S. Comp. Stats. 1916, 1097.) 1, Act Feb. 26, 1917, c. 122. Additional division in northern dis- trict. That the counties of Archer, Baylor, Clay, Cottle, Foard, Mon- tague, King, Knox, Wichita, Wilbarger, and Young shall constitute a division of the northern judicial district of Texas. 2. Additional terms of court for northern district; office of clerk. That terms of the district court of the United States for the said northern district of Texas shall be held twice each year at the city of Wichita Falls, in Wichita County, on the fourth Monday in March and the third Monday in November. The clerk of the court for the northern district of Texas shall maintain an office in charge of himself or a deputy at Wichita Falls, which shall be kept open at all times for the transaction of the business of the court : Provided, That suitable accommodations for holding court at Wichita Falls shall be provided by the county or municipal authorities without expense to the United States. (Fed. Stats. Ann., 2d ed., 1918 Supp., title "Judiciary"; Pamphlet Supp. Nos. 9-10, January-April, 1917, p. 66; U. S. Comp. Stats. 1916, Supp., 1095a, 1095b, Adv. Sheets, 239 Fed. No. 4, p. 57.) Act Feb. 26, 1917, c. 120, provides for an additional district judge for western district of Texas. That the President of the United States, by and with the advice and consent of the Senate, shall appoint an additional judge of the district court of the United States for the Western District of Texas, who shall possess the same powers, perform the same duties, and receive the same compensation and allowance as the present judge of said district, and whose official place of residence shall be maintained at El Paso until otherwise provided by law. (1918 Supp. Fed. Stats. Ann., title "Judi- ciary"; U. S. Comp. Stats. 968h; Adv. Sheets, 239 Fed. No. 1.) 109 (Re-enacting 28 Stats. 110, with amendment thereto, 29 Stats. 620). The state of Utah shall constitute one judicial district, to be known as the district of Utah. It is divided into two divisions, to be known as the northern and central divisions. The northern division shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Boxelder, Cache, Davis, Morgan, Rich, and Weber. The central division shall include the territory embraced on the date last mentioned in the counties of Beaver, Carbon, Emery, Garfield, Grand; Iron, Juab, Kane, Millard, Piute, Salt Lake, San Juan, San Pete, Sevier, Summit, Tooele, Uinta, Utah, Wasatch, Washington, and Wayne. THE JUDICIAL CODE. 73") Terms of the district court for the northern division shall be held at Ogden on the second Mondays in March and September; and for the central division, at Salt Lake City on the second Mondays in April and November. The clerk of the court for said district shall maintain an office in charge of himself or a deputy at each of the places where the court is now required to be held in the district.' (5 Fed. Stats. Ann., 2d ed., p. 593; 2 U. S. Comp. Stats. 1916, 1100.) 110 (Re-enacting 531, Rev. Stats., as Amended Feb. 1, 1912, c. 20). The state of Vermont shall constitute one judicial district, to be known as the district of Vermont. Terms of the district court shall be held at Burlington on the fourth Tuesday in February, at Windsor on the third Tuesday in May, at Rutland on the first Tuesday in October, and at Brattleboro on the third Tuesday in December. In each year one of the stated terms of the district court may, when adjourned, be adjourned to meet at Montpelier, and one at Newport; Provided, however, That suitable rooms and accommodations shall be furnished for the holdings for said court and for the use of the officers of said court at Brattleboro, free of expense to the government of the United States, until the public building provided for by act of Congress shall be erected. (5 Fed. Stats. Ann., 2d ed., p. 594; 2 U. S. Comp. Stats. 1916, 1101.) 111 (Re-enacting 549, Rev. Stats.). The state of Virginia is divided into two districts, to be known as the eastern and western dis- tricts of Virginia. The eastern district shall include the territory em- braced on the first day of July, nineteen hundred and ten, in the counties of Accomac, Alexandria, Amelia, Brunswick, Caroline, Charles City, Ches- terfield, Culpepper, Dinwiddie, Elizabeth City, Essex, Fairfax, Fauquier, Gloucester, Goochland, Greensville, Hanover, Henrico, Isle of Wight, James City, King and Queen, King George, King William, Lancaster, Loudoun, Louisa, Lunenberg, Mathews, Mecklenburg, Middlesex, Nanse- mond, New Kent, Norfolk, Northampton, Northumberland, Nottoway, Orange, Powhatan, Prince Edward, Prince George, Prince William, Prin- cess Anne, Richmond, Southampton, Spottsylvania, Stafford, Surry, Sus- sex, Warwick, Westmoreland, and York. Terms of the district court shall oe held at Richmond on the first Mondays in April and October; at Norfolk on the first Mondays in May and November; and at Alex- andria on the first Mondays in January and July. The western district shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Allegheny, Albermarle, Amherst, Appomattox, Augusta, Bath, Bedford, Bland, Botetourt, Buchanan, Buck- ingham, Campbell, Carroll, Charlotte, Clarke, Craig, Cumberland, Dick- 736 APPENDIX. enson, Floyd, Fluvanna, Franklin, Frederick, Giles, Grayson, Greene, Halifax, Henry, Highland, Lee, Madison, Montgomery, Nelson, Page, Patrick, Pulaski, Pittsylvania, Rappahannock, Roanoke, Rockbridge, Rockingham, Russell, Scott, Shenandoah, Smyth, Tazewell, Warren, Wash- ington, Wise, and Wythe. Terms of the district court shall be held at Lynchburg on the Tuesdays after the second Mondays in March and Sep- tember; at Danville on the Tuesdays after the second Mondays in April and November; at Abingdon on the Tuesdays after the first Mondays in May and October; at Harrisonburg on the Tuesdays after the first Mondays in June and December; at Charlottesville on the second Monday in Janu- ary and the first Monday in July; at Roanoke, on the third Monday in February and the third Monday in June; and at Big Stone Gap oh the fourth Monday in January and the second Monday in August. The clerk of the court for the western district shall maintain an office in charge of himself or a deputy at Lynchburg, at Danville, at Charlottesville, at Roanoke, at Abingdon, and at Big Stone Gap, which shall be kept open at all times for the transactions of business of the court. (5 Fed. Stats. Ann., 2d ed., p. 594; 2 U. S. Comp. Stats. 1916, 1102.) 112. (Re-enacting act of- April 5, 1890, c. 65, 25 Stats. 45). The state of Washington is divided into two districts, to be known as the eastern and western district of Washington. The eastern district shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Spokane, Stevens. Ferry, Okanogan, Chelan, Grant, Douglas, Lincoln, and Adams, with the waters thereof, including all Indian reservations within said counties, which shall constitute the northern division ; also the territory embraced on the date last mentioned in the counties of Asotin, Garfield, Whitman, Columbia, Franklin, Walla Walla, Benton, Klickitat, Kittitas, and Yakima, with the waters thereof, including all Indian reservations within said counties, which shall con- stitute the southern division of said district. Terms of the. district court for the northern division shall be held at Spokane on the first Tuesdays in April and September; for the southern division, at Walla Walla on the first Tuesdays in June and December, and at North Yakima, on the first Tuesdays in May and October. The western district shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Whatcom, Skagit, Snohomish, King, San Juan, island, Kitsap, Clallam, and Jefferson, with the waters thereof, including all Indian reservations within said counties, which shall constitute the north- ern division; also the territory embraced on the date last mentioned in the counties of Pierce, Mason, Thurston, Chehalis, Pacific, Lewis, Wah- kiakum, Cowlitz, Clarke, and Skamania, with the waters thereof, including THE JUDICIAL CODE. 737 all Indian reservations within said counties, which shall constitute the southern division of said district. Terms of the district court for the northern division shall be held at Bellingham on the first Tuesdays in April and October; at Seattle on the first Tuesdays in May and Novem- ber; and for the southern division, at Tacoma on the first Tuesdays in February and July. The clerks of the courts for the eastern and western districts shall maintain an office in charge of himself or a deputy at each place in their respective districts where terms of court are now required to be held. (5 Fed. Stats. Ann., 2d ed., p. 595; 2 U. S. Comp. Stats. 1916, 1103.) 113,- as Amended Act Aug. 22, 1914, c. 265. The State of West Virginia is divided into two districts, to be known as the northern and southern districts of West Virginia. The northern district shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Hancock, Brooke, Ohio, Marshall, Tyler, Pleasants, Wood, Wirt, Ritchie, Doddridge, Wetzel, Monangalia, Marion, Harrison, Lewis, Gilmer, Calhoun, Upshur, Barbour, Taylor, Preston, Tucker, Ran- dolph, Pendleton, Hardy, Grant, Mineral, Hampshire, Morgan, Berkeley, and Jefferson, with the waters thereof. Terms of the district court for the northern district shall be held at Martinsburg on the first Tuesday of April and the third Tuesday of September; at Clarksburg on the second Tuesday of April and the first Tuesday of October; at Wheeling on the first Tuesday of May and the third Tuesday of October; at Philippi on the fourth Tuesday of May and the second Tuesday of November; at Elkins on the first Tuesday in July and the first Tuesday in December; and at Parkersburg on the second Tuesday of January and the second Tuesday of June; Provided, That a place for holding court at Philippi shall be furnished free of cost to the United States by Barbour County until other provision is made therefor by law : And provided further, That a place for holding court at Elkins shall be furnished free of cost to the United States by Randolph County until other provision is made therefor by law. The southern district shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Jackson, Roane, Clay, Braxton, Webster, Nicholas, Pocahontas, Greenbrier, Fayette, Boone, Kanawha, Putnam, Mason, Cabell, Wayne, Lincoln, Logan, Mingo, Raleigh, Wyoming, McDowell, Mercer, Summers, and Monroe, with the waters thereof. Terms of the district court for the southern district shall be held at Charleston on the first Tuesday of June and the third Tuesday of November; at Huntington on the first Tuesday of April and the first Tuesday after the third Monday of September; at Bluefield on Manual 47 738 APPENDIX. the first Tuesday of May and the third Tuesday of October; at Williamson on the first Tuesday of October; at Webster Springs on the first Tuesday of September; and at Lewisburg on the second Tuesday of July: Provided, That a place for holding court at Webster Springs shall be furnished free of cost to the United States : And provided further, That a place for hold- ing court at Williamson shall be furnished free of cost to the United States by Mingo County until other provision is made therefor by law. (38 Stats. 702; 5 Fed. Stats. Ann., 2d ed., p. 596; 2 U. S. Comp. Stats. 1916, 1104.) 114 (Re-enacting 550, Rev. Stats.). The state of Wisconsin is divided into two districts, to be known as the eastern and western districts of Wisconsin. The eastern districts shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Brown, Calumet, Dodge, Door, Florence, Fond du Lac, Forest, Green Lake, Kenosha, Kewaunee, Langlade, Manitowoc, Marinette, Marquette, Milwaukee, Oconto, Outagamie, Ozaukee, Racine, Shawano, Sheboygan, Walworth, Washington, Waukesha, Waupaca, Waushara, and Winnebago. Terms of the district court for said district shall be held at Milwaukee on the first Mondays in January and October; at Oshkosh on the second Tuesday in June; and at Green Bay on the first Tuesday in April. The western district shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Adams, Ashland, Bar- ron, Bayfield, Buffalo, Burnett, Chippewa, Clark, Columbia, Crawford, Dane, Dunn, Douglas, Eau Claire, Grant, Green, Iowa, Iron, Jackson, Jefferson, Juneau, La Crosse, Lafayette, Lincoln, Marathon, Monroe, Oneida, Pepin, Pierce, Polk, Portage, Price, Richland, Rock, Rusk, Saint Croix, Sauk, Sawyer, Taylor, Tremepealeau, Vernon, Vilas, Washburu, and Wood. Terms of the district court for said district shall be held at Madison on the first Tuesday in December; at Eau Claire on the first Tuesday in June; at La Crosse on the third Tuesday in September; and at Superior on the fourth Tuesday in January and the second Tuesday in July. The district court for each of said districts shall be open at all times for the purpose of hearing and deciding causes of admiralty and maritime jurisdiction, so far as the same can be done without a jury. The clerk of the court for the western district shall maintain an office in charge of himself or a deputy at Madison, at La Crosse, and at Superior, which shall be kept open at all times for the transaction of the business of the court. The marshal for the western district shall appoint a deputy marshal who shall reside and keep his office at Superior. All writs and other process, except criminal warrants, issued at Superior, may be made THE JUDICIAL CODE. 739 returnable at Superior; and the clerk at that place shall keep in his office the original records of all actions, prosecutions, and special proceedings so commenced and pending therein. Criminal warrants may be returned at any place within the district where court is held. Whenever warrants issued at Superior shall be returned at any other place, the clerk of the court wherein the warrant is returned, shall certify the same, under the seal of the court, together with the plea and other proceedings had thereon, and the determination of the court upon such plea or proceedings, with all papers and orders filed in reference thereto, to the clerk of the court at Superior; and the clerk at Superior shall enter upon his records a minute of the proceedings had upon the return of said warrant, certified as aforesaid. All causes and proceedings instituted in the court at Superior, shall be tried therein, unless by consent of the parties, or upon the order of the court, they are transferred to another place for trial. (5 Fed. Stats. Ann., 2d ed., p. 597; 2 U. S. Comp. Stats. 1916, 1105.) 115 (Re-enacting 26 Stats. 225). The state of Wyoming and the Yellowstone National Park shall constitute one judicial district, to be known as the district of Wyoming. Terms of the district court for said district shall be held at Cheyenne on the second Mondays in May and November; at Evanston on the second Tuesday in July; and at Lander on the first Monday in October; and the said court shall hold one session annually at Sheridan, and in said national park, on such dates as the court may order. The marshal and clerk of the said court shall each, respectively, appoint at least one deputy to reside at Evanston, and one to reside at Lander, unless he himself shall reside there, and shall also maintain an office at each of those places: Provided, That until a public building is provided at Lander, suitable accommodations for holding court in said town shall be furnished the government at an expense not to exceed three hundred dollars annually. The marshal of the United States for the said district may appoint one or more deputy marshals for the Yellowstone National Park, who shall reside in said park. (5 Fed. Stats. Ann., 2d ed., p. 598; 2 U. S. Comp. Stats. 1916, 1106.) 740 APPENDIX. CHAPTER SIX. CIRCUIT COURTS OP APPEALS. SEO. 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, alloted 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. SEO. 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 question to the Supreme Court. 135. Appeals and writs of' error from Alaska; where heard. 116 (Including 604, Rev. Stats.). There shall be nine judicial cir- cuits of the United States, constituted as follows : First. The first circuit shall include the districts of Rhode Island, Massachusetts, New Hampshire, Maine, and Porto Rico. (Amendment Act Jan. 28, 1915, c. 22.) Second. The second circuit shall include the districts of Vermont, Connecticut, and New York. Third. The third circuit shall include the districts of Pennsylvania, New Jersey, and Delaware. Fourth. The fourth circuit shall include the districts of Maryland, Vir- ginia, 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, Michigan, Kentucky, and Tennessee. Seventh. The seventh circuit shall include the districts of Indiana, Illinois, and Wisconsin. Eighth. The eighth circuit shall include the districts of Nebraska, Min- nesota, Iowa, Missouri, Kansas, Arkansas, Colorado, Wyoming, North Dakota, South Dakota, Utah, and Oklahoma. THE JUDICIAL CODE. 741 Ninth. The ninth circuit shall include the district* of California, Oregon, Nevada, Washington, Idaho, Montana, and Hawaii. (3f Stats. 1131; 5 Fed. Stats. Ann., 2d ed., p. 599; 2 U. S. Comp. Stats. Id Hi. $ 1107; Foster's Federal Practice, 5th ed., pp. 8, 9. In general, Barrett v. United States, -169 U. S. 218, 42 L. Ed, 723, 18 Sup. Cf 3-J7.J 117 (Re-enacting 26 Stats. 826). There shall be in each circuit a circuit court of appeals, which shall consist of three judges, of whom two shall constitute a quorum, and which shall be a court of record, with appellate jurisdiction as hereinafter limited and established. (36 Stats. 1131; 5 Fed. Stats. Ann., 2d ed., p. GOO; 2 U. S. Comp. Stats. 1916, 1108.) 118 (Superseding 2, Act of March 3, 1891, 26 Stats. 826). There shall be in the second, seventh, and eighth circuits, respectively, four cir- cuit judges, in the fourth circuit, two circuit judges, and in each of the other circuits, three circuit judges, to be appointed by the President, by and with the advice and consent of the Senate. They shall be entitled to receive a salary at the rate of seven thousand dollars a year, each, payable monthly. Each circuit judge shall reside within his circuit. 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. (36 Stats. 1131, as amended by 37 Stats. 53; 5 Fed. Stats. Ann., 2d ed., p. 601; 2 U. S. Comp. Stats. 1916, 1109.) 119 (Superseding 606, Rev. Stats.). The Chief Justice and asso- ciate justices of the Supreme Court shall be allotted among the circuits by an order of the court, and a new allotment shall be made whenever it becomes necessary or convenient by reason of the alteration of any circuit, or of the new appointment of a Chief Justice or associate justice, or 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 allotted thereto, temporarily assign a justice of another circuit to such circuit. (36 Stats. 1131; 5 Fed. State. Ann., 2d ed., p. 602; 2 U. S. Comp. Stats. 1916, 1111.) 742 APPENDIX. 120 (Re-enacting 3, Act March 3, 1891, c. 217, 26 Stats. 827). The Chief Justice and the associate justices of the Supreme Court assigned to each circuit, and the several district judges within each circuit, shall be competent to sit as judges of the circuit court of appeals within their 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 asso- ciate justice, the circuit judges in attendance upon the court shall preside in the order of the seniority of their respective commissions. In case the full court at any time shall not be made up by the attendance of the Chief Justice or the associate justice, and the circuit judges, one or more district judges within the circuit shall sit in the court according to such order or provision among the district judges as either by general or particular 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 appeals. (36 Stats. 1132; 5 Fed. Stats. Ann., 2d ed., p. 602; 2 U. S. Comp. Stats. 1916, 1112; Poster's Federal Practice, 5th ed., pp. 2417, 2539.) A decree in which a dis- qualified judge took part will be quashed and set aside without regard to its merits. (Moran v. Dillingham, 174 U. S. 153, 43 L. Ed. 930, 19 Sup. Ct. 620.) 121 (Re-enacting 605, Rev. Stats.). The words "circuit justice" and "justice of a circuit," when used in this title, shall be understood to desig- nate the justice of the Supreme Court who is allotted to any circuit; but the word "judge," when applied generally to any circuit, shall be under- stood to include such justice. (36 Stats. 1132; 5 Fed. Stats. Ann., 2d ed., p. 604; 2 U. S. Comp. Stats. 1916, 1113.) 122 (Re-enacting part of 2, Act of March 3, 1891, c. 517, 26 Stats. 826). Each of said circuit courts of appeals shall prescribe the form and style of its seal, and the form of writs and other process and procedure as may be conformable to the exercise of its jurisdiction; and shall have power to establish all rules and regulations for the conduct of the busi- ness of the court within its jurisdiction as conferred by law. (36 Stats. 1132; 5 Fed. Stats. Ann., 2d ed., p. 604; 2 U. S. Comp. Stats. 1916, 1114; Bradford v. Southern Ry. Co., 195 U. S. 243, 49 L. Ed, 178, 25 Sup. Ct. 55.) 123 (Superseding part of 32, Act of March 3, 1891, c. 517, 26 Stats. 826). The United States marshals in and for the several districts of THE JUDICIAL cobfi. 743 said courts shall be the marshals of said circuit courts of appeals, and shall exercise the same powers and perform the same duties, under the regulations of the court, as are exercised and performed by the marshal of the Supreme Court of the United States, so far as the same may be applicable. (36 Stats. 1132; 5 Fed. Stats. Ann., 2d ed., p. 604 j 2 U. 8. Comp. Stats. 1916, 1115.) 124 (Re-enacting part of 2, Act of March 3, 1891, c. 517, 26 Stats. 826). Each court shall appoint a clerk, who shall exercise the same powers and perform the same duties in regard to #11 matters within its juris- diction, as are exercised and performed by the clerk of the Supreme court, so far as the same may be applicable. (36 Stats. 1132; 5 Fed. Stats. Ann., 2d ed., p. 605; 2 U. S. Comp. Stats. 1916, 1116. In general, Morton v. U. S., 59 Fed. 349.) 125 (New legislation). 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 removed at the pleasure of the clerk appointing them, with the approval of the court. In case of the death of the clerk his deputy or deputies shall, unless removed by the court, continue in office and perform the duties of the clerk in his name until a clerk is appointed and has qualified ; and for the defaults or misfeasances in office of any such deputy, whether in the lifetime of the clerk or after his death, the clerk and his estate and the sureties on his official bond shall be liable, and his executor or ad- ministrator shall have, such remedy for such defaults or misfeasances com- mitted after his death as the clerk would be entitled to if the same had occurred in his lifetime. (36 Stats. 1132; 5 Fed. Stats. Ann., 2d ed., p. 605; 2 U. S. Comp. Stats. 1916, 1117.) 126 (Re-enacting 26 Stats. 827). A term shall be held annually by the circuit courts of appeals in the several judicial circuits at the follow- ing 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 Montgomery; in the sixth circuit, in Cincinnati; in the seventh circuit, in Chicago; in the eighth circuit, in Saint Louis, Denver, or Cheyenne, and Saint Paul; in the ninth circuit, in San Francisco, and each year in two other places in said circuit to be designated by the judges of said court; and in each of the above circuits, terms may be held at such other times and in such other places as said courts, respectively, may from time to time designate: Pro- vided, That terms shall be held in Atlanta on the first Monday in October, 744 APPENDIX. 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 Pan! on the first Monday in May. 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 state of Georgia, in the state of Texas, and in the state of Alabama, to the circuit . court of appeals for the fifth judicial circuit shall be heard and -disposed of, respectively, by said court at the terms held in Atlanta, in Fort Worth, and in Montgomery, except that appeals or writs of error in cases of injunctions and in all other ^ases which, under the statutes and rules, or in the opinion of the court, are entitled to be brought to a speedy hear- ing may be heard and disposed of wherever said court may be sitting. All appeals, writs of errors, and other appellate proceedings which may hereafter be taken or prosecuted from the district court of the United States at Beaurnonty 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 court shall sit, in cases of injunctions and in all other cases which, under the statutes and the rules, or in the opinion of the court, are entitled to be brought to a speedy hearing. All appeals, writs of error, and other appellate proceedings which may be taken or prosecuted from the dis- trict 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 terri- tory may, by consent of all the parties, be heard and disposed of at a term of said court other than the one held in Denver or Cheyenne. (30 Stats. 1132; 5 Fed. Stats. Ann., 2d ed., p. 605; 2 U. S. Comp. Stats. 1916, 1118; Foster's Federal Practice, 5th ed., p. 11.) Act of July 17, 1916, c. 241. [Circuit Court of Appeals Fourth Circuit Additional term."] That the judges of the United States Circuit Court of Appeals for the Fourth Circuit shall annually open and hold a term of the court of said circuit at Asheville, North Carolina, at such time as may be fixed by the judges thereof. (Fed. Stats. Ann., 2d ed., 1918 Supp., title "Judiciary"; Pam- phlet Supp. No. 8, October 1916, p. 129; 2 U. S. Comp. Stats. 1916, 1118a, p. 1388.) THE JUDICIAL CODE. 745 127 (Re-enacting part of 26 Stats. 829). The marshals for the several districts in which said circuit courts of appeals may be held shall, under the direction of the Attorney General, and with bis approval, provide such rooms in the public buildings of the United States as may be necessary for the business of said courts, and pay all incidental expenses of said court, including criers, bailiffs, and messengers: Provided, That in case proper rooms cannot be provided in such buildings, then the marshals, with the approval of the Attorney General, may, from time to time, lease such rooms as may be necessary for such courts. (36 Stats. 1133.) 128, as Amended Act of Jan. 28, 1915, c. 22. The circuit court of appeals shall exercise appellate jurisdiction to review by appeal or writ of error final decisions in the district courts, including the United StateS district court for Hawaii and the United States district court for Porto Rico, 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 court of appeals shall be final in all cases in which the jurisdiction is dependent entirely upon the opposite parties to the suit or controversy being aliens and citizens of the United States or citizens of different states; also in all cases arising under the patent laws, under the ^rade-mark laws, under the copyright laws, under the revenue laws, and under the criminal laws, and in all admiralty cases. (38 Stats. 803.) 129. Where upon a hearing in equity in a district court, or by a judge thereof in vacation, an injunction shall be granted, continued, re- fused, or dissolved by an interlocutory order or decree, or an application to dissolve an injunction shall be refused, or an interlocutory order or decree shall be made appointing a receiver, an appeal may be taken from such interlocutory order or decree granting, continuing, refusing, dissolv- ing, or refusing to dissolve, an injunction, or appointing a receiver, to the circuit court of appeals, notwithstanding an appeal in such case might, upon final decree under the statutes regulating the same, be taken directly to the Supreme Court: Provided, That the appeal must be taken within thirty days from the entry of such order or decree, and it shall take precedence in the appellate court; and the proceedings in other resjwjcte in the court below shall not be stayed unless otherwise ordered by that court, or the appellate court, or a judge thereof, during the pendency of such appeal: Provided, however, That the court below may. in its discre- tion, require as a condition of the appeal an additional bond. 746 APPENDIX. 130. The circuit courts of appeals shall have the appellate and super- visory 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. 131. The circuit court of appeals for the ninth circuit is empowered to hear and determine writs of error and appeals from the United States court for China, as provided in the act entitled "An Act Creating a United States Court for China and Prescribing the Jurisdiction thereof," approved June thirtieth, nineteen hundred and six. 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 condi- tions of such allowances, as by law belong to the justices or judges in respect of other courts of the United States, respectively. 133 (Re-enacting 15, C. C. A. Act 1891). The circuit courts of appeals, in cases in which their judgments and decrees are made final by this title, shall have appellate jurisdiction, by writ of error or appeal, to review the judgments, orders, and decrees of the supreme courts of Arizona and New Mexico, as by this title the/ may have to review the judgments, orders, and decrees of the district courts; and for that purpose said terri- tories shall, by orders of the Supreme Court of the United States, to be made from time to time, be assigned to particular circuits. (36 Stats. 1134.) This section is superseded by reason of the territories of Arizona and New Mexico having been admitted as states, by proclamation of the President and acts of Congress, all of which are cited in paragraphs following Judicial Code, 70 and 96, respectively, and are set forth in the title "States." 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 ttie 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 THE JUDICIAL CODE. 747 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 instruc- tions shall be binding upon the circuit court of appeals. 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 before the hearing of any appeal, writ of error, or other case, the parties thereto, through their respective attorneys, may stipulate at which of the above-named places the same shall he 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. 748 APPENDIX. CHAPTER SEVEN. THE COURT OF CLAIMS. no. 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. 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. 3. Disbursing officers. 146. Judgments for set-off or coun- ter-claims; how enforced. 147. Decree on accounts of disburs- ing officers. 148. Claims referred by departments. 149. Procedure in cases transmitted by departments. 150. Judgment's 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. SEC. 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. 167. Testimony; where taken. 168. Witnesses before commissioners. 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 eases. 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 govern- ment. 187. Reports of court to Congress. 136 (Re-enacting 1049, Rev. Stats.). The court of claims, estab- lished by the act of February twenty-fourth, eighteen hundred and fifty- five, shall be continued. It shall consist of a chief justice and four judges, who shall be appointed by the President, by and with the advice and con- THE JUDICIAL CODB. 749 sent 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. (36 Stats. 1135; 5 Fed. Stats. Ann., 2d ed., p. 646; 2 U. S. Comp. Stats. 1916, 1127.) 137 (Re-enacting 1050, Rev. Stats.). The court of claims shall have a seal, with such device as it may order. (5 Fed. Stats. Ann., p. 647; 2 U. S. Comp. Stats. 1128; Taylor v. U. S., 45 Fed. 531.) 138 (Re-enacting 1052, Rev. Stats.). The court of claims shall hold one annual session at the city of Washington, beginning on the first Mon- day in December and continuing as*long as may be necessary for the prompt disposition 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 transaction of business: Provided, That the concurrence of three judges shall be necessary to the decision of any case. (36 Stats. 1136; 5 Fed. Stats. Ann., 2d ed., p. 647; 2 U. S. Comp. Stats. 1916, 1129; Foster's Federal Practice, 5th ed., p. 2342.) 139 ( Re-enacting 1053, Rev. Stats.). 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 perform- ance' 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 session. The bailiff shall hold his office for a term of four years, unless sooner removed by the court for cause. (36 Stats. 1136 ; 5 Fed. Stats. Ann., 2d ed., p. 647; 2 U. S. Comp. Stats. 1916, 1130; Foster's Federal Practice, 5th ed., p. 2300.) 140 (Re-enacting 1054, Rev. Stats.). 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. (36 Stats. 1136.) 141 (Re-enacting 1055, Rev. Stats.). The chief clerk shall give bond to the United States in such amount, in snch form, and with such security as shall be approved by the Secretary of the Treasury. (36 Stats. 1136.) 750 APPENDIX. 142. The said clerk shall have authority when he has given bond as provided in the preceding section, to disburse, under the direction 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 settled. (36 Stats. 1136; 5 Fed. Stats. Ann., 2d ed., p. 648; 2 U. S. Comp. Stats. 1916, 1133; Foster's Federal Prac- tice, 5th ed., p. 2300.) , 143 (Re-enacting 1057, Rev. Stats.). 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 parties 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 decisions to the heads of departments; to the Solicitor, the Comptroller, and the Auditors of the Treasury; to the Commissioner of the General Land Office and of Indian Affairs; to the chiefs of bureaus, and to other officers charged with the adjustment of claims against the United States. (36 Stats. 1136; 5 Fed. Stats. Ann., 2d ed., p. 648; 2 U. S. Comp. Stats. 1916, 1134.) 144 (Re-enacting 1058, Rev. Stats.). Whoever, being elected or ap- pointed 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 qualified, and during his continuation in office, practice in the court of claims, shall be fined not more than ten thousand dollars and imprisoned not more than two years; and shall, moreover, thereafter be incapable of holding any office of honor, trust, or profit under the govern- ment of the United States. (36 Stats. 1136; 5 Fed. Stats. Ann., 2d ed., p. 649; 2 U. S. Comp. Stats. 1916, 1135; Foster's Federal Practice, 5th ed., p. 2329.) 145 (Including 1059, 1069, Rev. Stats. As to jurisdiction.) The court of claims shall have jurisdiction to hear and determine the following matters : First. All claims (except for pensions) founded upon the Constitution of the United States or any law of Congress, upon any regulation of an Executive Department, upon any contract, express or implied, with the government of the United States, or for damages, liquidated or unliqui- dated, in cases not sounding in tort, in respect of which claims the party THE JUDICIAL CODB. 751 would be entitled to redress against the United States either in a eourt 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 commonly 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. Second. All set-offs, counterclaims, claims for damages, whether liqui- dated or unliquidated, or other demands whatsoever on the part of the government of the United States against any claimant against the govern- ment in said court: Provided, That no suit against the government of the United States, brought by any officer of the United 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 Treasury fails to act finally thereon within sit months after the account is received in said office. Third. The claim of any paymaster, quartermaster, commissary of subsistence, or other disbursing officer of the United States, or 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. (36 Stats. 1136; 5 Fed. Stats. Ann., 2d ed., p. 649; 2 U. S. Comp. Stats. 1916, 1136; Foster's Federal Prac- tice, 5th ed., pp. 2301, 2305; United States v. Pitts Co., 193 Fed. 905, 114 C. C. A. 119.) 146 (Re-enacting 1061, Rev. Stats.). Upon the trial of any cause in which any set-off, counter-claim, 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 judg- ments in such court are enforced. (36 Stats. 1137; 5 Fed. Stats. Ann., 2d ed., p. 660; 2 U. S. Comp. Stats. 1916, 1137; Foster's Federal Prac- 752 APPENDIX. tice, 5th ed., p. 2305. In general, Wisconsin Cent. R. R. Co. v. United States, 164 U. S. 190, 41 L. Ed. 406, 17 Sup. Ct. 45.) 147 (Re-enacting 1062, Rev. Stats.). Whenever the court of claims ascertains the facts of any loss by any paymaster, quartermaster, com- missary of subsistence, or other disbursing officer, in the cases herein- before 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. (36 Stats. 1137; 5 Fed. Stats. Ann., 2d ed., p. 661; 2 U. S. Comp. Stats. 1916, 1138; Foster's Federal Practice, 5th ed., p. 2306. In general, McClure v. United States, 116 U. S. 145, 29 L. Ed. 572, 6 Sup. Ct. 321.) 148 (Drawn from 1063). When any claim or matter is pending in any of the executive 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 department 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 jurisdic- tion 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 department by which the same was referred to said court. The Secretary of the Treasury may, upon the certificate of any auditor, or of the Comptroller of the Treasury, direct any claim or matter, of 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 thereto, to the said court for trial and adjudication. (36 Stats. 1137; 5 Fed. Stats. Ann., 2d ed., p. 662; 2 U. S. Comp. Stats. 1916, 1139. In general, U. S. v. Barlow, 184 U. S. 123, 46 L. Ed, 463, 22 Sup. Ct. 468.) 149 (Re-enacting 1064, Rev. Stats.). 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 THE JUDICIAL CODE. 753 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. (36 Stats. 1138; 5 Fed. Stats. Ann., 2d ed., p. 664; 2 U. 8. Comp. Stats. 1916, 1140. Procedure in referred cases, United States v. New York, 160 U. S. 598, 40 L. Ed. 551, 16 Sup. Ct 402.) 150 (Re-enacting 1065, Rev. Stats.). The amount of any final judg- ment 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. (36 Stats. 1138; 5 Fed. Stats. Ann., 2d ed., p. 664; 2 U. S. Comp. Stats. 1916, 1141; Foster's Federal Practice, 5th ed., p. 2310.) 151 (Re-enacting Act, March 3, 1887, c. 359). 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 accordance 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, includ- ing 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 limitations should be removed or which shall be claimed to excuse the claimant for not having resorted 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 equitably due from the United States to the claimant: Provided, however, 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 jurisdiction to render judg- ment or decree thereon, it shall proceed to do so, giving to either, party such further opportunity for hearing as in its judgment justice slnill require, and it shall report its proceedings therein to the House of Con- gress by which the same was referred to said court. (36 Stats. 113S; 5 Fed. Stats. Ann., 2d ed., p. 665; 2 U. S. Comp. Stats. 1916, 1142; Fos- ter's Federal Practice, 5th ed., p. 2312.) '- Manual 48 754 APPENDIX. 152 (Re-enacting 15 of Act of March 3, 1889, c. 359, 24 Stats. 503). If the government of the United States shall put in issue the right of the plaintiff to recover, the court may, in its discretion, allow costs to the prevailing party from the time of joining such issue. Such costs, how- ever, shall include only what is actually incurred for witnesses, and for summoning the same, and fees paid to the clerk of the court. (36 Stats. 1138; 5 Fed. Stats. Ann., 2d ed., p. 677; 2 U. S. Comp. Stats. 1916, 1143; Foster's Federal Practice, 5th ed., p. 2352. Costs, United States v. Har- mon, 147 U. S. 268, 37 L. Ed, 164, 13 Sup. Ct. 327.) 153 (Re-enacting 1066, Rev. Stats.). 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. (36 Stats. 1138; 5 Fed. Stats. Ann., 2d ed., p. 667; 2 U. S. Comp. Stats. 1916, 1144; Foster's Federal Practice, 5th ed., p. 2308. In general, Pam-To-Pee v. United States, 148 U. S. 691, 37 L. Ed. 613, 13 Sup. Ct. 742.) '' J 154 (Re-enacting 1067, Rev. Stats.). No person shall file or prose- cute 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 pend- ing 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 immediately, under the authority of the United States. (36 Stats. 1138; 5 Fed. Stats. Ann., 2d ed., p. 667; 2 U. S. Comp. Stats. 1916, 1145. In general, United States v. Louisiana, 123 U. S. 32, 31 L. Ed. 69, 8 Sup. Ct. 17.) 155 (Re-enacting 1068, Rev. Stats.). Aliens who are citizens or sub- jects 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. (36 Stats. 1139; 5 Fed. Stats. Ann., 2d ed., p. 668; 2 U. S. Comp. Stats. 1916, 1146; Foster's Federal Prac- tice, 5th ed., p. 2309. Aliens, United States v. Winchester & Potomac R. R. Co., 163 U. S. 244, 41 L. Ed. 145, 16 Sup. Ct. 993.) 156 (Re-enacting 1069, Rev. Stats.). Every claim against the United States cognizable by the court of claims shall be forever barred unless the petition setting 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 Representa- THE JUDICIAL CODE. 755 tives, as provided by law, within six years after the claim first accrues: 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 peti- tion 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 prevent any claim from being barred, nor shall any of the said dis- abilities operate cumulatively. (36 Stats. 1139; 5 Fed. Stats. Ann., 2d ed., p. 668; 2 U. S. Comp. Stats. 1916, 1147; Foster's Federal Practice, 5th ed., p. 2314.) 157 (Re-enacting 1070, Rev. Stats.). The said court shall have power to establish rules for its government and for the regulation of prac- tice therein, and it may 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. (36 Stats. 1139; 5 Fed. Stats. Ann., 2d ed., p. 671; 2 U. S. Comp. Stats. 1916, 1148. Practice, Intermingled Cotton Cases, 92 U. S. 651, 23 L. Ed. 756.) 158 (Re-enacting 1071, Rev. Stats.). The judges and clerks of said court may administer oaths and affirmations, taking acknowledgments of instruments in writing, and give certificates of the same. (36 Stats. 1139; 5 Fed. Stats. Ann., 2d ed., p. 672; 2 U. S. Comp. Stats. 1916, 1149; Foster's Federal Practice, 5th ed., p. 2312.) 159 (Re-enacting 1072, Rev. Stats.). The claimant shall in all cases fully set forth in his petition the claim, the action thereon in Congress or by any of the departments, if such action has been had, what persons are owners thereof or interested therein, when and upon what considera- tion 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 off-sets; 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 be- lieves 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. (36 Stats. 1139; 5 Fed. Stats. Ann., 2d ed., p. 672; 2 U. S. Comp. Stats. 756 APPENDIX. 1916, 1150; Foster's Federal Practice, 5th ed., p. 2316. In general, United States v. Louisiana, 123 U. S. 32, 31 L. Ed. 69, 8 Sup. Ct. 17.) 160 (Re-enacting 1073, Rev. Stats.). 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, his petition shall be dismissed. (36 Stats. 1139; 5 Fed. Stats. Ann., 2d ed., p. 673; 2 U. S. Comp. Stats. 1916, 1151.) 161 (Re-enacting part of 1074, Rev. Stats.). Whenever it is mate- rial in any claim to ascertain whether 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 per- son to the United States during such Civil War shall be required to prove affirmatively that such person did, during said Civil War, con- sistently adhere to the United States and did give no aid or comfort to persons engaged in said Confederate service in said Civil War. (36 Stats. 1139; 5 Fed. Stats. Ann., 2d ed., p. 673; 2 U. S. Comp. Stats. 1916, 1152; Foster's Federal Practice, 5th ed., p. 2330.) 162 (Drawn from 1059, Rev. Stats.). The court of claims shall have jurisdiction to hear and determine the claims of those whose prop- erty was taken subsequent to June the first, eighteen hundred and sixty- five, under the provisions of the act of Congress approved March twelfth, eighteen hundred and sixty-three, entitled "An Act to Provide for the Collection of Abandoned Property and for the Prevention of Frauds in Insurrectionary Districts within the United States," and acts amend- atory thereof, where the property so taken was sold and the net pro- ceeds thereof was placed in the Treasury of the United States; and the Secretary of the Treasury shall return said net proceeds to the owners thereof, on the judgment of said court, and full jurisdiction is given to said court to adjudge said claims, any statutes of limitations to the con- trary notwithstanding. (36 Stats. 1139; 5 Fed. Stats. Ann., 2d ed., p. 673 ; 2 U. S. Comp. Stats. 1916, 1153 ; Foster's Federal Practice, 5th ed., p. 2312. In general, Austin v. United States, 155 U. S. 417, 39 L. Ed. 206, 15 Sup. Ct. 167.) 163 (Re-enacting 1075, Rev. Stats.). The court of claims shall have power to appoint commissioners to 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 claim- THE JUDICIAL C< . 757 ant or of the United States. (36 Stats. 1140; 5 Fed. Stats. Ann.. 2d rd., p. 674; 2 U. S. Comp. Stats. 1916, 1154; Foster's Federal Piu 5th ed., p. 2330.) 164 (Re-enacting 1076, Rev. Stats.). 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 records made by the committees of each House of Congress, when deemed necessary in the prosecution of its business. But the head of any de- partment may refuse and omit to comply with any call for information or papers when, in his opinion, such compliance would be injurious to the public interest. (36 Stats. 1140; 5 Fed. Stats. Ann., 2d ed., p. 674; 2 U. S. Comp. Stats. 1916, 1155. In general, Oakes v. United States, 174 U. S. 778, 43 L. Ed. 1169, 19 Sup. Ct. 864.) 165 (Re-enacting 1077, Rev. Stats.). 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. (36 Stats. 1140; 5 Fed. Stats. Ann., 2d ed., p. 675; 2 U. S. Comp. Stats. 1916, 1156; Foster's Federal Practice, 5th ed., p. 2330.) 166 (Re-enacting 1080, Rev. Stats.). The court may, at the in- stance of the attorney or solicitor appearing in behall of the United States, make an order in any case pending therein, directing any claim- ant in such case to appear, upon reasonable notice, before any commis- sioner of the court and be examined on oath touching any or all matters pertaining to said claim. Such examination shall be reduced to writinir 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 appearing in the case, be read and used as evidence on the trial thereof. And if any claimant, after such order is made and due and reasonable notice thereof is given to him, fails to appear, or refuses to testify or answer fully as to all matters within his knowledge material 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. (36 Stats. 1140; 5 Fed. Stats. Ann., 2d ed., p. 675; 2 U. S. Comp. Stats. 1916, 11."; Foster's Federal Prac- tice, 5th ed., 2331. In general, United States v. Greuthouse, 166 U. S. 601, 41 L. Ed. 1130, 17 Sup. Ct. 701.) 167 (Rc-oriactiiig 1081, Rev. Stats.). Tlio testimony in onsrs pend- ing before the court of claims shall be taken in the county where the 758 APPENDIX. witness resides, when the same can be conveniently done. (36 Stats. 1140; 5 Fed. Stats. Ann., 2d ed., p. 676; 2 U. S. Comp. Stats. 1916, 1158; Foster's Federal Practice, 5th ed., p. 2331.) 168 (Re-enacting 1082, Rev. Stats.). 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 sub- poenas 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. (36 Stats. 1140; 5 Fed. Stats. Ann., 2d ed., p. 676; 2 U. S. Comp. Stats. 1916, 1159; Foster's Federal Practice, 5th ed., p. 2332.) 169 (Re-enacting 1082, Rev. Stats.). 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. (36 Stats. 1140; 5 Fed. Stats. Ann., 2d ed., p. 676; 2 U. S. Comp. Stats. 1916, 1160; Foster's Federal Practice, 5th ed., pp. 2310, 2331.) 170 (Re-enacting 1084, Rev. Stats.). The commissioner taking testimony to be used in the court of claims shall administer an oath or affirmation to the witness brought before him for examination. (36 Stats. 1140; 5 Fed. Stats. Ann., 2d ed., p. 677; 2 U. S. Comp. Stats. 1916, 1161; Foster's Federal Practice, 5th ed., p. 2331.) 171 (Re-enacting 1085, Rev. Stats.). When testimony is taken for the claimant, the fees of the commissioner before whom it is taken, and the cost of the commission 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. (36 Stats. 1141; 5 Fed. Stats. Ann., 2d ed., p. 677; 2 U. S. Comp. Stats. 1916, 1162.) 172 (Re-enacting 1086, Rev. Stats.). Any person who corruptly practices or attempts to practice any fraud against the United States in the proof, statement, establishment, 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 THE JUDICIAL CODB. 759 attempted to be practiced, and thereupon to give judgment that such claim is forfeited to the government, and that the claimant be forever barred from prosecuting the same. (36 Stats. 3141; 5 Fed. Stats. Ann., 2d ed., p. 677; 2 U. S. Comp. Stats. 1916, 1163; Foster's Federal Prac- tice, 5th ed., p. 2349.) 173 (Re-enacting 2 of Act of April 30, 1878, c. 77). No claim shall be allowed by the accounting officers under the provisions of the act of Congress approved June sixteen, eighteen hundred and seventy-four, or by the court of claims, or by Congress, to any person where such claim- ant, or those under whom 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. (36 Stats. 1141; 5 Fed. Stats. Ann., 2d ed., p. 678; 2 U. S. Comp. Stats. 1916, 1164.) 174 (Re-enacting 1087, Rev. Stats.). 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 indi- viduals, would furnish sufficient ground for granting a new trial. (36 Stats. 1141; 5 Fed. Stats. Ann., 2d ed., p. 678; 2 U. S. Comp. Stats. 1916, 1165; Foster's Federal Practice, 5th ed., p. 2345; Nance v. United States, 23 Ct. Cl. 463; Payan's Motion, 15 Ct. a. 56.) 175 (Re-enacting 1088, Rev. Stats.). 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 prem- ises has been done to the United States ; but until an order is made stay- ing the payment of a judgment, the same shall be payable and paid as now provided by law. (36 Stats. 1141; 5 Fed. Stats. Ann., 2d ed., p. 678; 2 U. S. Comp. Stats. 1916, 1166; Foster's Federal Practice, 5th ed., p. 2345. In general, Landers v. United States, 210 U. S. 168, 42 L. Ed. 1007, 28 Sup. Ct. 661; Henry's Motion, 15 Ct. Cl. 166; McCollum v. United States, 33 Ct. Cl. 469 ; United States v. Young, 94 U. S. 258, 24 L. Ed. 153; United States v. Crussell, 12 Wall. 175, 20 L. Ed. 384; Young v. United States, 95 U. S. 641, 24 L. Ed. 467.) 176 (Drawn from Act of March 3, 1877, c. 105). 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 760 APPENDIX. 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. (36 Stats. 1141; 5 Fed. Stats. Ann., 2d ed., p. 680; 2 U. S. Comp. Stats. 1916, 1167; Foster's Federal Practice, 5th ed., p. 2352.) 177 (Re-enacting 1091, Rev. Stats.). 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 pay- ment of interest. (36 Stats. 1141; 5 Fed. Stats. Ann., 2d ed., p. 680; 2 U. S. Comp. Stats. 1916, 1168; Foster's Federal Practice, 5th ed., p. 2350. In general, United States ex rel. Augerica v. Bayard, 127 U. S. 251, 32 L. Ed. 159, 8 Sup. Ct. 1156.) 178 (Re-enacting 1092, Rev. Stats.). The payment of the amount due by any judgment of the court of claims, and of any interest thereon allowed by law, as provided by law, shall be a full discharge to the United States of all claim and demand touching any of the matters in- volved in the controversy. (36 Stats. 1141; 5 Fed. Stats. Ann., 2d ed., p. 681; 2 U. S. Comp. Stats. 1916, 1169.) 179 (Re-enacting 1092, Rev. Stats.). 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 aris- ing out of the matters involved in the controversy. (36 Stats. 1141; 5 Fed. Stats. Ann., 2d ed., p. 681; 2 U. S. Comp. Stats. 1916, 1170; Foster's Federal Practice, 5th ed., p. 2351.) 180 (Drawn from 3 and 8 of the Tucker Act of March 3, 1887, c. 359). Whenever any person shall present his petition to the court of claims alleging that he is or has been indebted to the United States as an officer or agent thereof, or by virtue of any contract therewith, or that he is the guarantor, or surety, or personal representative of any officer or agent or contractor so indebted, or that he or the person for whom he is such surety, guarantor, or personal representative has held any office or agency under the United States, or entered into any con- tract 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 in- debtedness 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 THE JUDICL\L CODE. 761 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 shU 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 judgment of said court or of the Supreme Court of the United States, to whicli an appeal shall lie, as in other cases, as to the amount due, shall be binding and conclusive upon the parties. The pay- ment of such amount so found due by the court shall discharge such obli- gation. 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 within said time, such claim and the claim on the original indebtedness shall be for- ever barred. The provisions of section one hundred and sixty-six shall apply to cases under this section. (36 Stats. 1141; 5 Fed. Stats. Ann., 2d ed., p. 681; 2 U. S. Comp. Stats. 1916, 1171; Giering v. United States, 26 Ct. Cl. 319.) 181 (Drawn from 9 of Tucker Act, March 3, 1887, o. 359). 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. (36 Stats. 1142; 5 Fed. Stats. Ann., 2d ed., p. 682; 2 U. S. Comp. Stats. 1916, 1172. In general, Miltenberger v. Logansport Ry. Co., 106 U. S. 286, 27 L. Ed. 117, 1 Sup. Ct. 140.) 182 (Re-enacting 10 of Act of March 3, 1891, c. 538, 26 Stats. 854). In any case brought in the court of claims under any act of Congress by which that court is authorized to render a judgment or decree against the United States, or against any Indian tribe or any Indians, or against any fund held in trust by the United 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 con- A ferred under sections two hundred and forty-two and two hundred and I forty-three; and such right shall be exercised only within the time and in the manner therein prescribed. (36 Stats. 1142; 5 Fed. Stats. Ann., 2d ed., p. 683; 2 U. S. Comp. Stats. 1916, 1173.) 183 (Re-enacting 11 of Tucker Act, March 3, 1887, c. 359). The Attorney General shall report to Congress, at the beginning of each 762 APPENDIX. regular session, the suits under section one hundred and eighty, in which a final judgment or decree has been rendered, giving the date of each and a statement of the costs taxed in each case. (36 Stats. 1142; 5 Fed. Stats. Ann., 2d ed., p. 683; 2 U. S. Comp. Stats. 1916, 1174. In gen- eral, Sena v. Amer. Turquoise Co., 220 U. S. 497, 55 L. Ed. 559, 31 Sup. Ct. 488.) 184 (Re-enacting 4 of Bowman Act of March 3, 1883. c. 116). 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 United 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 preliminary 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. (36 Stats. 1142; 5 Fed. Stats. Ann., 2d ed., p. 683; 2 U. S. Comp. Stats. 1916, 1175; Foster's Federal Practice, 5th ed., p. 2316.) 185 (Drawn from 5 of the Bowman Act of March 3, 1883, c. 116). The Attorney General, or his assistants under his direction, 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 pro- visions 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 de- fend the United States in said court. (36 Stats. 1142; 5 Fed. Stats. Ann.. 2d ed., p. 684; 2 U. S. Comp. Stats. 1916, 1176.) 186 (Combining 1087, Rev. Stats, and 6 of the Bowman Act of March 3, 1883, c. 116). No person shall be excluded as a witness in the court of claims on account of color, because he or she is a party to or interested 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. (36 Stats. 1143, as amended by Act of Feb. 15, 1912, c. 28; 37 Stats. 61; 5 Fed. Stats. Ann., 2d ed., p. 685; 2 U. S. Comp. Stats. 1916, 1177.) THE JUDICIAL COD1. 763 187 (Drawn from 7 of the Bowman Act of March 3, 1883, c. 116). Reports of the court of claims to Congress, under sections one hundred and forty-eight and one hundred and fifty-one, if not finally acted upon during the session at which they are reported, shall be continued from session to session and from Congress to Congress until the same shall be finally acted upon. (36 Stats. 1143; 5 Fed. Stats. Ann., 2d ed., p. 685; 2 U. S. Comp. Stats. 1916, 1178.) CHAPTER EIGHT. THE COURT OP CUSTOMS APPEALS. ML 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 cal- endar; calendar to be called every sixty (lavs. SEC. 188. Court of customs appeals; ap- pointment and salary of judges; quorum; circuit and district 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 messen- gers. 194. To be a court of record; to pre- scribe form and style of seal, and establish rules and regu- lations; may affirm, modify, or reverse and remand case, etc. 188 (Drawn from Act Feb. 5, 1910, c. 62, 36 Stats. 214). There shall be a United States court of customs appeals, 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 issued 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 con- 764 APPENDIX. currence 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 President may, upon the request of the presiding judge of said court, designate 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 quali- fied to so act. (36 Stats. 1143; 5 Fed. Stats. Ann., 2d ed., p. 686; 2 U. S. Comp. Stats. 1916, 1179; Foster's Federal Practice, 5th ed., p. 2330.) 189 (Drawn from Act Feb. 5, 1910, c. 62, 36 Stats. 214). The said court of customs appeals shall always be open for the transaction of business, and sessions thereof may, in the discretion of the court, be held in the several judicial circuits, and at such places as said court may from time to time designate. Any judge who, in pursuance of the pro- visions of this chapter, shall attend 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 marshal in the settlement of his accounts with the United States. (36 Stats. 1143; 5 Fed. Stats. Ann., 2d ed., p. 686; 2 U. S. Comp. Stats. 1916, 1180.) 190 (Drawn from 28 of the Tariff Act of Aug. 5, 1909, c. 6, 36 Stats. 105). 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 appointed 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 Dis- trict 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 mar- shal 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 ex- penditures shall be allowed and paid by the Secretary of the Treasuiy upon claim duly made and approved by said presiding judge. (36 Stats. 1144; 5 Fed. Stats. Ann., 2d ed., p. 686; 2 U. S. Comp. Stats. 1916, 1181.) THE JUDICIAL CODE. 191 (Drawn from 28 of the Tariff Act of Aug. 5, 1909, c. 6, 36 Stats. 105). 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 performed 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 hun- dred dollars per annum, which sum shall be in full payment for all ser- vice 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 com- missioner, master, receiver, or referee. The costs and fees in the said court shall be fixed and established by said court in a table of fees to be adopted and approved by the Supreme Court of the United State* within four months 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 Static: and the same shall be expended, accounted for, and paid over to the Treasury of the United States. (36 Stats. 1144; 5 Fed. Stats. Ann., 2d ed., p. 687; 2 U. S. Comp. Stats. 1916, 1181, 1182.) 192 (Drawn from 28 of the Tariff Act of Aug. 5, 1909, c. 6, 36 Stats. 105). In addition to the clerk, the court may appoint an assist- ant clerk at a salary of two thousand dollars per annum, five steno- graphic clerks at a salary of one thousand six hundred dollars per annum each, one stenographic reporter at a salary of two thousand five hun- dred 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. Suid reporter shall prepare and transmit to the Secretary of the Treasury once a week in time for publication in the Treasury Decisions copit all decisions rendered to that date by said court, and prepare and trans- mit, under the direction of said court, at least once a year, report said decisions rendered 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 din t. (36 Stats. 1144; 5 Fed. Stats. Ann., 2d ed., p. 687; 2 U. S. Comp. Stnt*. 1916, 1183.) 193 (Drawn from 8 of the Tariff Act of Aug. 5, 1909, c. 6, 36 Stats. 105). The marshal of said court for the District of Columbia 766 APPENDIX. and the marshals of the several districts in which said court of customs 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 said court : Provided, That in case proper rooms cannot be provided in such buildings, then the said mar- shals, with the approval of the Attorney 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 cannot, by reason of actual occupancy or use, be occupied or used by said court of customs appeals. (36 Stats. 1144; 5 Fed. Stats. Ann.,, 2d ed., p. 688; 2 U. S. Comp. Stats. 1916, 1184.) 194 (Drawn from 8 of the Tariff Act of Aug. 5, 1909, c. 6, 36 Stats. 105). 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 conferred by law as may be conformable and necessary to the exercise of its juris- diction. 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 jurisdic- tion, and may affirm, modify, or reverse the same and remand the case with such orders as may seem to it proper in the premises, which shall be executed accordingly. (36 Stats. 1144; 5 Fed. Stats. Ann., 2d ed., p. 688; 2 U. S. Comp. Stats. 1916, 1185.) 195 (As Amended Act of Aug. 22, 1914, c. 267). That the Court of Customs Appeals established by this chapter shall exercise exclusive appellate jurisdiction to review by appeal, as herein provided, final deci- sions by a board of general appraisers in all cases as to the construction of the law and the facts respecting the classification of merchandise and the rate of duty imposed thereon under such classifications, and the fees and charges connected therewith, and all appealable questions as to the jurisdiction of said board, and all appealable questions as to the laws and regulations governing the collection of the customs revenues; and the judgments and decrees of said Court of Customs Appeals shall be final in all such cases; Provided, however. That in any case in which THE JUDICIAL CODE. 767 the judgment or decree of the Court of Customs Appeals is made final by the provisions of this title, it shall be competent for the Supremo Court, upon the petition of either party, filed within sixty days next after the issue by the Court of Customs Appeals of its mandate upon decision, in any case in which there is drawn in question the construc- tion of the Constitution of the United States, or any part thereof, or of any treaty made pursuant thereto, or in any other case when the Attorney General of the United States shall, before the decision of the Court of Customs Appeals is rendered, file with the court a certificate to the effect that the case is of such importance as to render expedient its review by the Supreme Court, to require by certiorari or otherwise, such case to be certified to the Supreme Court for its review and deter- mination, with the same power and authority in the case as if it had been carried by appeal or writ of error to the Supreme Court; And pro- vided further, That this Act shall not only apply to any case involving only the construction of section one, or any portion thereof, of an Act en- titled "An Act to provide revenue, equalize duties, and encourage the industries of the United States, and for other purposes," approved August fifth, nineteen hundred and nine, nor to any case involving the construction of section two of an Act entitled "An Act to promote recip- . rocal trade relations with the Dominion of Canada, and for other pur- poses," approved July twenty-sixth, nineteen hundred and eleven. (36 Stats. 1145; 38 Stats. 703; 5 Fed. Stats. Ann., 2d ed., p. 689; 2 U. S. Comp. Stats. 1916, 1186.) 196 (Drawn from 8 of the Tariff Act of Aug. 5, 1909, c. 6, 36 Stats. 105). After the organization of said court, no appeal shall be taken or allowed from any board of United States general appraisers to any other court, and no appellate jurisdiction shall thereafter be exer- cised 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 Imvo heretofore been cer- tified 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 :md hereafter decided by any circuit 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 768 APPENDIX. a circuit or district 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 remain- ing undecided may be reviewed on appeal at the instance of Cither party by the United States court of customs appeals, provided such appeal be taken within one year from the date of the entry of the order, judgment, or decrees sought to be reviewed. (36 Stats. 1145; 5 Fed. Stats. Ann., 2d ed., p. 690; 2 U. S. Comp. Stats. 1916, 1187.) 197 (Drawn f rom 28 of the Tariff Act of Aug. 5, 1909, c. 6, 36 Stats. 105). Immediately upon the organization of the court of customs appeals, all cases within the jurisdiction of that court pending and not submitted for decision in any of the United States circuit courts of ap- peals, 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 accordance herewith : Provided, That where orders for the taking of further testimony before a referee have been made in any of such cases, the taking of such testimony shall be completed before such certification. (36 Stats. 1145; 5 Fed. Stats. Ann., 2d ed., p. 691; 2 U. S. Comp. Stats. 1916, 1188.) 198 (Drawn from 28 of the Tariff Act of Aug. 5, 1909, c. 6, 36 Stats. 105). If the importer, owner, -consignee, or agent of any imported mer- chandise, or the collector or Secretary of the Treasury, shall be dissatis- fied with the decision of the board of general appraisers as to the con- struction of the law and the facts respecting the classification of such merchandise and the rate of duty imposed thereon under such classifica- tion, or with any other appealable decision 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 : Pro- vided, That in Alaska and in the insular and other outside possessions of the United States ninety days shall be allowed for making such applica- tion to the court of customs appeals. Such application shall b^e 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 THE JUDICIAL CODE. 769 . before said board shall be competent evidence before said court of cu- ' 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 fur- ther proceedings to be taken in pursuance of such determination. (36 Stats. 1146; 5 Fed. Stats. Ann., 2d ed., p. 691; 2 U. S. Comp. Stats. 1916, 1189; Foster's Federal Practice, 5th' ed., p. 2458.) 199 (Drawn from 28 of the Tariff Act of Aug. 5, 1909, c. 6, 36 Stats. 105). 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. (36 Stats. 1146; 5 Fed. Stats. ., 2d ed., p. 698; 2 U. S. Comp. Stats. 1916, 1190.) CHAPTER NINE. THE COMMERCE COURT. The commerce court, was abolished by the deficiency appropriation act of October 22, 1913, c. 32, 38 Stats. 219, 221. The jurisdiction of this court was transferred to the various district courts. The chapter is retained in our Appendix for an understanding of the jurisdiction so transferred. The portion of the deficiency bill abolishing the commerce court is as follows: 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," ap- proved June eighteenth, nineteen hundred and ten, is abolished from and after December thirty-first, nineteen hundred and thirteen, and the juris- diction vested in said commerce court by said act is transferred to and Bested 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 comn court are repealed. Nothing herein contained shall be deemed to affect the tenure of any of the judges now acting as circuit judges by appoint ment under the terms of said act, but such judges shall continue to act under assignment, as in the said act provided, as judges of the district 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 <>tli. hereby abolished and no successor to him shall be appointed. (5 Fed. Stats' Ann., 2d ed., p. 1108; 1 U. S. Comp. Stats. 191 G, 992, p. 831.) Manual f 770 APPENDIX. The venue of any suit hereafter brought to enforce, suspend, or set aside, in whole or in part, any order of the Interstate Commerce Commis- sion 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 transportation or is not made upon the petition of any party the venue shall be in the district where the matter complained of in the petition 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 "destina- tion" shall be construed as meaning final destination of such shipment. (5 Fed. Stats. Ann., 2d ed., p. 1108.) The procedure in the district courts in respect to cases of which juris- diction is conferred upon them by this act shall be the same as that hereto- fore prevailing in the commerce court. The orders, writs, and processes of the district courts may in these cases run, be 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. (5 Fed. Stats. Ann., 2d ed., p. 1108.) 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 Interstate Commerce Commission shall be issued or granted by any district 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 judges. Said application shall not be heard or deter- mined before at least five days' notice of the hearing has been given to the Interstate Commerce Commission, to the Attorney General of the United Stages, 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 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 In- terstate Commerce Commission for not more than sixty days from the THE JUDICIAL CODE. 771 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 ar.d iden- tified by reference thereto, that such irreparable damage would result to the petitioner and specifying the nature of the damage. The said judges may, at the time of hearing such application, upon a like finding, continue the temporary stay or suspension in whole or in part until decision UJMMI the application. 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 hearing at the earliest practicable day after the expiration of the notice hereinbefore provided for. (5 Fed. Stats. Ann., 2d ed., p. 1112.) 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 inter- locutory 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 refr, 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 judgment 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 of such final judg- ment or decree, and such appeals may be taken in like manner as appeal- 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. (5 Fed. Stats. Ann., 2d ed., p. 1113.) All cases pending in the commerce court at the date of the pas^i^' of this act shall be deemed pending in and be transferred forthwith to said district courts except cases which may previously have been sub milled to that court for final decree, and the latter to be transferred to the district courts if not decided by the commerce court before De- cember first, nineteen hundred and thirteen, and all cases wherein in- junctions or other orders or decrees, mandatory or otherwise, have been directed or entered prior to the abolition of the said court shall be transferred forthwith to said district courts, which shall have jurisdic- tion to proceed therewith and to enforce said injunctions, orders, or de- crees. Each of said cases and all the records, papers, and proceedings shall be transferred to the district court wherein it might have INM-M til-.l at the time it was filed in the commerce court if this net had tlu>n been in effect; and if it might have been filed in any one of two or m.>n> district courts it shall be transferred to that one of said district courts which may be designated by the petitioner or petitioners in said caw. or. upon failure 772 APPENDIX. of said petitioners to act in the premises within thirty days after the pas- sage 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 com- merce 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 Department 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 commerce 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 necessary 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. (5 Fed. Stats. Ann., 2d ed., p. 1116.) All laws or parts of laws inconsistent with the foregoing provisions relating to the commerce court, are repealed. (5 Fed. Stats. Ann., 2d ed., p. 1117.) SEO. 200. Commerce court created; judges of, appointment and designa- tion; 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- sm sions to be against United States; restraining orders, when granted without notice. 209. Jurisdiction of the court, how invoked; practice and pro- cedure. 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; exception; status of transferred cases. THE JUDICIAL CODB. 773 5 200 (Re-enacting part of Act of June 18, 1910, c. 309, 36 Stnts. r>.19). There shall be a court of the United States, to be known as the conn. court, which shall be a court of record, and shall have a seal of such fonn and style as the court may prescribe. The said court shall be comp of five judges, to be from time to time designated and a^iuued th 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 referred to in the next succeeding section, who shall be designated by the President to serve for one, two, three, four, and five years, resj>ectively, 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 1 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 expiration of the period of his last previous designation. The judge first designated for the five year period shall be 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 lie may be absent or incapable of acting in the order of the date of their designa- tions. 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. (36 Stats. 1146; 5 Fed. Stats. Ann., 2d ed., p. 698. Superseded.) 201 (Re-enacting part of Act of June 18, 1910, 36 Stats. 539). The five additional circuit judges authorized by the act to create a commerce court, and for other purposes, approved June eighteenth, nineteen hun- dred 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 d. nated 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. (36 Stats. 1140; 5 Fed, Stats. Ann 1 ., 2d ed., p. 699. Partly preserved.) 774 APPENDIX. 202 (Re-enacting part of Act of June 18, 1910, 36 Stats. 539). 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 mar- shal, and may also appoint, if they find it necessary, a deputy clerk and deputy marshal; and such clerk, marshal, deputy clerk, and deputy mar- shal, 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 pe*^annum; and the salary of the deputy marshal .two thousand five hundred dollars per annum. The clei-k and marshal may, with the approval of the court, employ all requisite assist- ance. 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 organization 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. (36 Stats. 1147.) 203 (Re-enacting part of Act of June 18, 1910, 36 Stats. 539). The commerce court shall always be open for the transaction 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 undue 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, deputy 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, marshal, 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. (36 Stats. 1148.) 201 (Re-enacting part of Act of June 18, 1910, 36 Stats. 539). The United States marshals of the several districts outside of the city of Wash- ington in which. the commerce court may hold its sessions shall provide, under the direction and with the approval of the Attorney General, such rooms in the public buildings of the United States as may be necessary THE JUDICIAL CODE. 775 for the court's use; but in case proper rooms cannot 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. (36 Stats. 1148.) i 205 (Re-enacting part of Act of June 18, 1910, 36 Stats. 539). If, at any time, the business of the commerce court does not require the ser- vices of all the judges, the Chief Justice of the United States may, by writing, signed by him and filed in the Department 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 cases of illnc 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. (36 Stats. 1148.) 206 (Re-enacting part of Act of June 18, 1910, 36 Stats. 539). 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 the same may be appropriate to the effective exercise of the jurisdiction hereby conferred. The commerce court may issue all writs and process appropriate to the full exercise of its jurisdiction and powers and may prescribe the form thereof. It may also, from time to time, establish such rules and regulations concerning pleading, practice, or procedure in cases or matters within its jurisdiction as to the court shall seem wise and proper. Its orders, writs, and processes 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 districts 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 mar- shals generally when acting under like conditions concerning suits or matters in the district courts of the United States. (36 Stats. 1148; 5 Fed. Stats. Ann., 2d ed., p. 700.) 207 (Re-enacting part of Act of June 18, 1910, 36 Stats. 539). The commerce court shall have the jurisdiction possessed by circuit courts of the United States and the judges thereof immediately prior to June eigh- teenth, nineteen hundred and ten, over all cases of the following kinds : 776 APPENDIX. First. All cases for the enforcement, otherwise than by adjudication and collection of a forfeiture or penalty or by infliction of criminal pun- fshment, of any order of the Interstate Commerce Commission 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 United States. Fourth. All such mandamus proceedings as under the provisions of section twenty or section twenty-three of the act entitled "An Act to Regu- late Commerce," approved February fourth, eighteen hundred 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 jurisdiction possessed by any circuit or district court of the United States over cases or proceedings of a kind not within the above-enumerated classes. (36 Stats. 1148; 5 Fed. Stats. Ann., 2d ed., p. 1105. Construction, Proctor & Gamble Co. v. United States, 188 Fed. 221. Jurisdiction, Proctor & Gamble v. United States, 225 U. S. 2R2, 56 L. Ed. 1091, 32 Sup. Ct. 761. Miscon- ception of extent of powers by Commission, Interstate Comm. v. Clyde Steamship Co., 181 U. S. 29, 45 L. Ed. 729, 21 Sup. Ct. 512. Directing common carriers, Southern Pac. v. Interstate Com. Com., 200 U. S. 536, 50 L. Ed. 594, 26 Sup. Ct. 330. Enforcing order of Commission, Farmers' Loan & Trust Co. v. Northern Pac. Ry. Co., 83 Fed. 249. Power of a court of equity, Re Central Stock Yards Co. v. Louisville & N. R. Co., 112 Fed. 823. Commerce Commission, an administrative body, Western N. Y. & P. R. Co. v. Penn. Refining Co., 137 Fed. 343, 70 C. C. A. 23. General powers, Chicago, R. I. & P. Ry. Co. v. Interstate Com. Com., 171 Fed. 680.) 208 (Re-enacting part Act June 18, 1910, 36 Stats. 542). 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 TIIK JUDICIAL CODE. 777 commerce court, in its discretion, may restrain or suspend, in whole or in part, the operation of the Commission's order pending the final hearint,' and determination of the suit. No order or injunction so restrainii suspending an order of the Interstate Commerce Commission shall be made by the commerce court otherwise than upon notice and after hearin-r, except that in cases where irreparable damage would otherwise ensue to the petitioner, said court, or a judge thereof may, on hearing after not less than three days' notice to the Interstate Commerce 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 Com- mission for not more than sixty days from the date of the order of such court or judge, pending application to the court for its order or injunc- tion, 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 i tioner and specifying the nature of the damage. The court 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 its decision upon the application. (36 Stats. 1149; 5 Fed. Stats. Ann., 2d ed., p. 1110.) 209 (Re-enacting part of Act of June 18, 1910, 36 Stats. 539). The jurisdiction of the commerce court shall be invoked by filing in the office of the clerk of the court a written petition setting forth briefly and succinctly the facts constituting the petitioner's cause of action, and speci- fying the relief sought. A copy of such petition shall be forthwith served by the marshal or a deputy marshal 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 ser- vice shall be made by filing a copy of said petition in the office of the Secretary of the Interstate Commerce Commission and in the Department of 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 categorically respond to the allegations of the petition. N/> replication need be filed to the answer, and objections to the sufficiency of the petition or answer as not setting forth a cause of action or defense must be taken at tlu> final hearing or by motion to dismiss the petition based on said -rounds, which motion may be made at any time before answer is filed. In case no an- shall be filed as provided herein the petitioner nun apply to the court on notice for such relief as may be proper upon the facts alleged in the peti- tion. The court may, by rule, prescribe the method of taking evidence i 778 APPENDIX. 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 evidence. Except as may be otherwise provided in this chapter, or by rule of the court, the practice and procedure in the com- merce court shall conform as nearly as may be to that in like cases in a district court of the United States. (36 Stats. 1149; 5 Fed. Stats. Ann., 2d ed., 1109. A motion to dismiss the petition can be made under this section. Proctor & Gamble Co. v. United States, 118 Fed. 221; Southern Pac. Co. v. Interstate Commerce Commission, 188 Fed. 241.) 210 (Re-enacting part of Act of June 18, 1910, 36 Stats. 539-542). 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 transcript 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 restraining the enforcement of an order of the Interstate Commerce Commission, provided such appeal be taken within thirty days from the entry 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. (36 Stats. 1150; 5 Fed. Stats. Ann., p. 1114. In general, United States v. Bait. & Ohio R. Co., 225 U. S. 306, 56 L. Ed. 1100, 32 ,Sup. Ct. 817.) 211 (Re-enacting part of Act of' June 18, 1910, 36 Stats. 539, 542). All cases and proceedings in the commerce court which but for thi^ chapter would be brought by or against the Interstate Commerce Commis- sion, shall be brought by or against the United States, and the United States may intervene in any case or proceeding in the commerce court whenever, though it has not been made a party, public interests are in- volved. (36 Stats. 1150; 5 Fed. Stats. Ann., p. 1109.) THE JUDICIAL CODB. , , '. 212 (Re-enacting part Act June 18, 1910; 36 Stats. 539). The Attor- ney General shall have charge and control of the interests of the govern- ment in all cases and proceedings in the 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 Inter- state Commerce Commission and any party or parties in interest to the proceeding before the Commission, in which an order or requirement is made, may appear as parties thereto of their own motion and as to 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 wherein 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 justice 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 Interstate Commerce Commission, or in any suit which may be brought by anyone 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 In tor state 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 proceeding- over the objection of such party or intervenor aforesaid, but said intervenor or intcrvenors may prosecute, defend, or continue said suit or proceeding unaffected by the action or non-action of the Attorney General therein. (36 Stats. 1150; 5 Fed. Slats. Ann., 2d ed., p. 1114.) 213 (Re-enacting part Act June 18, 1910; 36 Stats. 530. r>43). (Vn- plainants before the Interstate Commerce Commission interested in n 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. (36 Stats. 1151 ; 5 Fed. Stats. Ann., 2d ed., p. 1115.) 780 APPENDIX. 214 (Re-enacting part Act June 18, 1910; 36 Stats. 539, 543). 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 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 pro- ceedings 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 transferred case or proceeding had been originally begun in the commerce court. The clerk of the court from which any case or proceed- ing 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. (36 Stats. 1151. See Hooker v. Interstate Commerce Commission, 188 Fed. 242.) THE JUDICIAL CODE. 781 CHAPTER TEN. THE SUPREME COURT. SEO. 215. Number of justices. 216. Precedents of the associate jus- tices. 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 ap- peals. 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 di- gests. 228. Additional reports and digests; limitation upon cost; esti- mates to be submitted to Con- gress 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 judgments and decrees of state courts. 238. Appeals and writs of error from United States district courts. SEC. 239. Circuit court of appeals may certify questions to Supreme Court for instructions. 240. Ccrtiorari 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 Unite I 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. 247. Appeals and writs of error from the district court for Alaska direct to Supreme Court in cer- tain cases. 248. Appeals and writs of error from the Supreme court of the Phil- ippine 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 appeals, 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 bo admitted to practice. 215 (Re-enacting 673, Rev. Stats.). The Supreme Court of the United States shall consist of a Chief Justice of the United States and eight associate justices, any six of whom shall constitute a quorum. (36 Stats. 1152; 5 Fed. Stats. Ann., 2d ed., p. 701; 2 U. S. Comp. Stats. 1916, 1191; Foster's Federal Practice, 5th ed., p. 300.) 782 APPENDIX. 216 (Re-enacting 674, Rev. Stats.). 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. (36 Stats. 1152; 5 Fed. Stats. Ann., 2d ed., p. 702; 2 U. S. Comp. Stats. 1916, 1192.) 217 (Re-enacting 675, Rev. Stats.). 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 eveiy associate justice who succeeds to the office of Chief Justice. (36 Stats. 1152; 5 Fed. Stats. Ann., 2d ed., p. 702; 2 U. S. Comp. Stats. 1916, 1194.) 218 (Re-enacting 676, Rev. Stats.). 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. (36 Stats. 1152; 5 Fed. Stats. Ann., 2d ed., p. 702; 2 U. S. Comp. Stats, 1916, 1194.) 219 (Re-enacting 677, Rev. Stats.). The Supreme Court shall have power to appoint a clerk and a marshal for said court, and a re- porter of its decisions. (36 Stats. 1152; 5 Fed. Stats. Ann., 2d ed., p. 702; 2 U. S. Comp. Stats. 1916, 1195.) 220 (Drawn from Act of Feb. 22, 1875, c. 95). The clerk of the Supreme Court shall, before he enters upon the execution of his office, give bond, with sufficient sureties, to be approved by the court, to the United States, in the sum of not less than five thousand and not more than twenty thousand dollars, to be determined and regulated by the Attorney General, faithfully to discharge the duties of his office, and seasonably to record the decrees, judgments, and determinations of the court. The Supreme Court may at any time, upon the motion of the Attorney General, to be made upon thirty days' notice, require a new bond, or a bond for an increased amount within the limits above pre- scribed; and the failure of the clerk to execute the same shall vacate his office. All bonds given by the clerk shall, after approval, be re- corded 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. (36 Stats. 1152; 5 Fed. Stats. Ann., 2d ed., p. 702; 2 U. S. Comp. Stats. 1916, THE JUDICIAL CODE. 783 1196. Bond of Clerk, Howard v. U. S., 184 U. S. 676, 46 L. Ed, 754, 22 gup. Ct. 543.) 221 (Re-enacting 678, Rev. Stats.). One or more deputies of the clerk of the Supreme Court may be appointed by the court on the appli- cation 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 misfeasances in office of any such deputy, whether in the lifetime of the clerk or after his death, the clerk, and his estate, and the sureties on his official bond, shall be liable; and his executor or administrator shall have such remedy for any such defaults or misfeasances committed after his death as the clerk would be entitled to if the same had occurred in his lifetime. (36 Stats. 1153; 5 Fed. Stats. Ann., 2d ed., p. 703; 2 U. S. Comp. Stats. 1916, 1197.) 222 (Re-enacting 679, Rev. Stats.). 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. (36 Stats. 1153.) 223 (Re-enacting part Act March 3, 1883, c. 143, 22 Stats. 631). The Supreme Court is authorized and empowered to prepare the tables of fees to be charged by the clerk thereof. (36 Stats. 1153.) 224 (Re-enacting 680, Rev. Stats.). The marshal is entitled to receive a salary at the rate of four thousand five hundred dollars a year. He shell attend the court at its sessions; shall serve and execute all process and orders issuing from it, or made by the Chief Justice or an associate justice in pursuance of law ; and shall take charge of all prop- erty of the United States used by the court or its members. With the approval of the Chief Justice he may appoint assistants and messengers to attend the court, with the compensation allowed to officers of the House of Representatives of similar grade. (36 Stats. 1153; 5 Fed. Stats. Ann., 2d ed., p. 605; 2 U. S. Comp. Stats. 1916, 1200.) 225 (Re-enacting 681, Rev. Stats.). 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 784 APPENDIX. 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 deci- sions, of which he shall deliver a like number of copies in like manner and time. (36 Stats. 1153.) 226 (Drawn from 862, Eev. Stats.). The reporter shall be en- titled to receive from the Treasury an annual salary of four thousand five hundred dollars when his report of said decisions constitutes one volume and an additional sum of one thousand two hundred dollars when, by direction of the court, he causes to be printed and published in any year a second volume; and said reporter shall be annually en- titled 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 here- after published at a sum not exceeding one dollar and seventy-five cents per volume; and the number of volumes now required to be delivered to the Attorney General shall be furnished by the reporter without any charge 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. (36 Stats. 1153.) 227 (Drawn from 683, Rev. Stats., as amended Act Feb. 12, 1889, c. 135). The Attorney General shall distribute copies of the Supreme 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 cus- toms 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 territorial 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 Attor- ney General, the Secretary of Agriculture, the Secretary of Commerce and Labor, the Solicitor General, the Assistant to the Attorney General, each Assistant 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 THE JUDICIAL CODE. 785 Senate, the Clerk of the House of Representatives for the use of the House of Representatives, the governors of the territories, the Solicitor 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 Depart- ment, 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 Patents, the Commissioner of Education, the Com- missioner 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 Director of the Census, the Forester, Department of Agriculture, the Purchasing Agent, Postoffice Department, the Interstate Commerce Com- mission, the Clerk of the Supreme Court of the United States, the Mar- shal of the Supreme Court of the United States, the Attorney 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 Supreme Court, twenty-five copies; to the Law Library of the Department 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 committees 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 conference room, robing room, and court room, three copies ; to the Secretary of War for the use of the proper courts and officers of the Philippine Islands and for the head- quarters of military departments in the United States, twelve copies; and to each of the places where district courts of the United States are now holdcn, including 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 Unit id 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 dis- trict court may hereafter be held, the edition of said reports and digests to Manual 50 786 APPENDIX. 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 they can be committed. The clerks of said courts (except the Supreme Court) shall in all cases keep said reports and digest for the use of the courts and of the officers thereof. Such reports and digest [s] 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. (36 Stats. 1154.) 228 (Drawn from Act July, 1, 1902, 32 Stats. 631). The publishers of the decisions of the Supreme Court shall deliver to the Attorney General, in addition to the three hundred copies delivered by the re- porter, 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 seventy-five cents per volume. The Attorney Gen- eral 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 preceding. (36 Stats. 1155.) 229. (New.) The Attorney General is authorized to procure com- plete 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 volumes of the same as issued, and distribute a copy of each such reports 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 appeals and the supreme court of the District of Columbia, the Attorney General, the Solicitor General, the Solicitor of the Treasury, the Assistant Attorney General for the De- partment of the Interior, the Commissioner of Patents, and the Inter- state Commerce Commission ; and to the Secretary of the Senate, for the use of the Senate, 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 set of any such reports, or digests, already pur- chased or owned by the United States, the Attorney General shall dis- THE JUDICIAL CODE. 787 tribute to such court room, office, or officer, only sufficient volumes to make a complete set thereof. No distribution of reports or digests ander 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 successors 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 provi- sions 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 Attor- ney 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 pro- vided for in this section. (36 Stats. 1155.) 230 (As Amended Act Sept. 6, 1916, c. 448, 1. Re-enacting 684, Rev. Stats.). The Supreme Court shall hold at the seat of government, one term annually, commencing on the first Monday in October, and such adjourned or special term as it may find necessary for the dispatch of busi- ness. (39 Stats. 726; 5 Fed. Stats. Ann., 2d ed., p. 708; 2 U. 8. Comp. Stats. 1916, 1207; Foster's Federal Practice, 5th ed., p. 8.) 231 (Re-enacting 685, Rev. Stats.). If, at any session of the Supreme Court, a quorum does not attend on the day appointed for hold- ing 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 witbin 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. (36 Stats. 1156; 5 Fed. Stats. Ann., 2d ed., p. 708; 2 U. S. Comp. Stats. 1916, 1208.) 232 (Re-enacting 686, Rev. Stats.). The justices attending at any term, when less than a quorum is present, may, within the twenty days 788 APPENDIX. mentioned in the preceding section, make all necessary orders touching any suit, proceeding, or process, depending in or returned to the court, preparatory to the hearing, trial, or decision thereof. (36 Stats. 1156; 5 Fed. Stats. Ann., 2d ed., p. 708; 2 U. S. Comp. Stats. 1916, 1209.) 233 (Re-enacting 687, Rev. Stats.). The Supreme Court shall have exclusive jurisdiction of all controversies of a civil nature where a state is a party, except between a state and its citizens, or between a state and citizens of other states, or aliens, in which latter cases it shall have original, but not exclusive, jurisdiction. And it shall have exclusively all such jurisdiction of suits or proceedings against ambassa- dors or other public ministers, or their domestics or domestic servants, as a court of law can have consistently with the law of nations ; and original, but not exclusive, jurisdiction, of all suits brought by ambassa- dors, or other public ministers, or in which a consul or vice consul is a party. (36 Stats. 1156; 5 Fed. Stats. Ann., 2d ed., p. 708; 2 U. S. Comp. Stats. 1916, 1210; Simkins' Federal Equity Suit, 3d ed., p. 41.) 234 (Re-enacting 688, Rev. Stats.). The Supreme Court shall have power to issue writs of prohibition to the district courts, when pro- ceeding as courts of admiralty and maritime jurisdiction; and writs of mandamus, in cases warranted by the principles and usages of law, to any courts appointed under the authority of the United States, or to persons holding office under the authority of the United States, where a state, or an ambassador, or other public minister, or a consul, or vice consul is a party. (36 Stats. 1156; 5 Fed. Stats. Ann., 2d ed., p. 717; 2 U. S. Comp. Stats. 1916, 1211; Foster's Federal Practice, 5th ed., p. 1437; Simkins' Federal Equity Suit, 3d ed., p. 41.) 235 (Re-enacting 689, Rev. Stats.). 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. (36 Stats. 1156; 5 Fed. Stats. Ann., 2d ed., p. 722; 2 U. S. Comp. Stats. 1916, 1212. In general, Capital Traction Co. v. Hof, 174 U. S. 1, 43 L. Ed, 873, 19 Sup. Ct. 580.) 236 (Re-enacting 690, Rev. Stats.). The Supreme Court shall have appellate jurisdiction in the cases hereinafter specially provided for. (36 Stats. 1156.) 237 (As Amended Act Sept. 6, 1916, c. 448, 2.). 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 TI7E JUDICIAL CODE. 789 treaty or statute of, or an authority exercised under, tlie United S and the decision is against, their validity: or where is drawn in question the validity of a statute of, or an authority exercised under any * on the ground of their being repugnant to the Constitution, treat ie-. laws of the United States, and the decision is in favor of their validity, 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 complained of had been rendered or passed in a court of the United States. The Supreme Court may reverse, modify, or affirm the judgments or decree of such state court, and may in its discretion, award execution or remand the same to the court from which it was removed by the writ. "It shall be competent for the Supreme Court, by certiorari or other- wise, to require that there be certified to it for review and determination with the same power and authority and with like effect as if brought up by writ of error, any cause wherein a final judgment or decree has been rendered or passed by the highest court of a State in which a decision could be had, where is drawn in question the validity of a treaty or statute of, or an authority exercised under the United States, and the decision is in favor of their validity ; or where is drawn in question the validity of a statute of, or an authority exercised under any State, on the ground of their being repugnant to the Constitution, treaties, or laws of the United States and the decision is against their validity; or where any title, riuht. privilege, or immunity is claimed under the Constitution, or any treaty or statute of, or commission held or authority exercised under the United States, and the decision is either in favor of or against the title, right, privilege, or immunity especially set up or claimed, by either party, under such Constitution, treaty, statute, commission, or authority." (36 Stats. 1156; amended 38 Stats. 790; 39 Stats. 726.) 238 (As amended Act Jan. 28, 1915, c. 22, 38 Stats. 8fl3). Appeals and writs of error may be taken from the district courts, including the United States district court for Hawaii, and the United States District Court for Porto Rico, 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 bo 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 Uuitc.l States, or the validity or construction of any treaty made under its authority, is drawn in quest 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. 790 APPENDIX. 239. In any case within its appellate jurisdiction, as defined in sec- tion one hundred and twenty-eight, the circuit court of appeals at any time may certify to the Supreme Court of the United States any ques- tions 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 propositions cer- tified to it, which shall be binding upon the circuit court of appeals in such case, or it may require that the whole record and cause be sent up to it for its consideration, and thereupon shall decide the whole matter in controversy in the same manner as if it had been brought there for review by writ of error or appeal. (36 Stats. 1157; 5 Fed. Stats. Ann., 2d ed., p. 838; 2 U. S. Comp. Stats. 1916, 1216; Foster's Federal Practice, 5th ed., p. 2378; Simkins' Federal Equity Suit, 3d ed., pp. 735, 737.) 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 deter- mination, with the same power and authority in the case as if it had been carried by appeal or writ of error to the Supreme Court. (36 Stats. 1157 ; 5 Fed. Stats. Ann., 2d ed., p. 854 ; 2 U. S. Comp. Stats. 1916, 1217; Foster's Federal Practice, 5th ed., pp. 1471, 2378.) 241 (Drawn from 6, Act Mch. 3, 1891, c. 517). In any case in which the judgment or decree of the circuit court of appeals is not made final by the provisions of this Title, there shall be of right an appeal or writ of error to the Supreme Court of the United States where the matter in controversy shall exceed one thousand dollars, besides costs. (36 Stats. 1157; 5 Fed. Stats. Ann., 2d ed., p. 877; 2 U. S. Comp. Stats. 1916, 1218; Foster's Federal Practice, 5th ed., p. 2374; Simkins' Federal Equity Suit, 3d ed., p. 741.) 242 (Re-enacting 707, Rev. Stats.). An appeal to the Supreme Court shall be allowed on behalf of the United States, from all judg- ments of the court of claims adverse to the United States, and on behalf of the plaintiff in any case where the amount in controversy exceeds three thousand dollars, or where his claim is forfeited to the United States by the judgment of said court as provided in section one hun- dred and seventy-two. (36 Stats. 1157; 5 Fed. Stats. Ann., 2d ed.. p. 887; 2 U. S. Comp. Stats. 1916, 1219; Foster's Federal Practice, 5tli ed., pp. 2353, 2385, 2438.) THE JUDICIAL CODE. 791 243 (He-enacting 708, Rev. Stats.). All appeals from the court of claims shall be taken within ninety days after the judgment i. ren- dered, and shall be allowed under such regulations as the Supreme Court may direct. (36 Stats. 1157; 5 Fed. Stats. Ann., 2d ed., p. 890; 2 U. S. Comp. Stats. 1916, 1220; Foster's Federal Practice, 5th ed., pp. 2355, 2457.) 244 (Drawn from 35 of the Organic Act of Porto Rico, of April 12, 1906, c. 191; 31 Stats. 77. Repealed Act Jan. 28, 1915, c. 22, 3; 38 Stats. 804). Writs of error and appeals from the final judgments and decrees of the Supreme Court of, and the United States district court for, Porto Rico, 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, 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 there- under is denied, without regard to the sum or value of the matter in dispute; and in all other cases in which the sum or value of the matter in dispute, exclusive of costs, to be ascertained by the oath of either party or of other competent witnesses, exceeds the sum or value of five thousand dollars. Such writs of error and appeals shall be taken within the same time, in the same manner, and under the same regula- tions as writs of error and appeals are taken to the Supreme Court of the United Slates from the district courts. (36 Stats. 1157; 5 Fed. Stats. Ann., 2d ed., p. 893; 2 U. S. Comp. Stats. 1916, 1215; Foster's Federal Practice, 5th ed., pp. 2388, 2438, 2456, 2539.) 245 (Drawn from 702, Rev. Stats, and 1, 2, Act Mch. 3, 1885, c. 355. Superseded by Acts admitting Arizona and New Mexico as States). Writs of error and appeals from the final judgments and de- crees 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 copy- right, 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 dispute, exclusive of costs, to be asccr- tained by the oath of either party or of other competent witnesses, exceeds the sum or value of five thousand dollars. (36 Stats. 1158.) 246 (As Amended by Act Jan. 28, 1915, c. 22, 2). (Writs of error and appeals from the Supreme Court of Hawaii and the Supreme 792 APPENDIX. Court of Porto Rico.) Writs of error and appeals from the final judg- ments and decrees of the Supreme Court of the Territory of Hawaii and of the Supreme Court of Porto Rico may be taken and prosecuted to the Supreme Court of the United States within the same time, in the same manner, under the same regulations, and in the same classes of cases, in which writs of error and appeals from the final judgments and decrees of the highest court of a State in which a decision in the suit could be had, may be taken and prosecuted to the Supreme Court of the United States under the provisions of section two hundred and thirty-seven; and in all other cases, civil or criminal, in the Supreme Court of the Territory of Hawaii or the Supreme Court of Porto Rico, it shall be competent for the Supreme Court of the United States to re- quire by certiorari, upon the petition of any party thereto, that the case be certified to it, after final judgment or decrees, for review and deter- mination, with the same power and authority as if taken to that court by appeal or writ of error; but certiorari shall not be allowed in any such case unless the petition therefor is presented to the Supreme Court of the United States within six months from the date of such judgment or decree. (36 Stats. 1158, as amended by 38 Stats. 804; 5 Fed. Stats. Ann., 2d ed., p. 900; 2 U. S. Comp. Stats. 1916, 1223; Foster's Federal Practice, 5th ed., pp. 2390, 2456, 2558.) 247 (Drawn from 202 of the Criminal Code of Alaska). Appeals and writs of error may be taken and prosecuted from final judgments and decrees of the district court for the district of Alafka or for any division thereof, direct to the Supreme Court of the United States, in the following cases : In priza cases ; and in all cases which involve the construction or application of the Constitution of the United States, or in which the constitutionality of any law of the United States or the validity or construction of any treaty made under its authority is drawn in question, or in which the Constitution or law of a state is claimed to be in contravention of the Constitution of the United States. Such writs of error and appeal shall be taken within the same time, in the same manner, and under the same regulations as writs of error and appeals are taken from the district courts to the Supreme Court. (36 Stats. 1158; 5 Fed. Stats. Ann., 2d ed., p. 905; 2 U. S. Comp. Stats. 1916, 1224; Foster's Federal Practice, 5th ed., pp. 2388, 2437, 2456, 2539.) 248 (Re-enacting 10 of Act of July 1, 1902, c. 1369. Superseded. Acts Aug. 29, 1916, c. 416, 27, and Act Sept. 6, 1916, c. 448, 5). The Supreme Court of the United States shall have jurisdiction to review, revise, reverse, modify, or affirm the final judgments and decrees of the THE JUDICIAL, CODB. 793 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 statute, treaty, title, right, or privilege of the United States is involved, or in causes in which the value in con- troversy exceeds twenty-five thousand dollars, or in which the title or pos- session of real estate exceeding in value the sum of twenty-live thousand dollars, to be ascertained by the oath of either party or of other compe- tent witnesses, is involved or brought in question ; and such final judg- ments 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 applicable, as the final judgments and decrees of the district courts of the United States. (36 Stats. 1158; 5 Fed. Stats. Ann., 2d ed., p. 907; 2 U. S. Comp. Stats. 1916, 1225, 1225a, 1225b; Foster's Federal Practice, 5th ed., pp. 2391, 2456, 2539.) 249 (Re-enacting 703, Rev. Stats., which section is repealed by 297, Jud. Code). 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 iii 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. (36 Stats. 1158; 5 Fed. Stats. Ann., 2d ed., p. 912; 2 U. S. Comp. Stats. 1916, 1226; Foster's Federal Practice, 5th ed., p. 2539.) 250. Any final judgment or decree of the court of appeals of the District of Columbia may be re-examined and affirmed, reversed, or modi- fied 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 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 Con- stitution 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 Stataa. 794 APPENDIX. 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 arising 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. (36 Stats. 1159; 5 Fed. Stats. Ann., 2d ed., p. 913; 2 U. S. Comp. Stats. 1916, 1227; Foster's Federal Practice, 5th ed., pp. 1382, 1519, 2387, 2436, 2439, 2457.) 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 require, by certiorari or otherwise, any such case to be certified to it for its review and determina- tion, with the same power and authority in the case as if it had been carried by writ of error or appeal to said Supreme Court. It shall also be com- petent 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 Supreme Court of the United States any questions or propositions of law concerning which it desires the instruction of that court for their proper decision; and thereupon the Supreme Court may either give its instruction on the questions and 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. (36 Stats. 1159; 5 Fed. Stats. Ann., 2d ed., p. 917; 2 U. S. Comp. Stats. 1916, 1228; Foster's Federal Practice, 5th ed., pp. 1520, 2379, 2387.) The part of the section authorizing certiorari is from Act of March 3, 1897, c. 390, 29 Stats. 692. The part referring to certifying questions is new legislation as concerns the District of Columbia. '252 ( Re-enacting 24 and 25 of the Bankruptcy Act of July 1, 1898). The Supreme Court of the United States is hereby invested with appellate jurisdiction of controversies arising in bankruptcy proceedings, THE JUDICIAL CODS. 795 from tne courts of bankruptcy, from which it has appellate jurisdiction in other cases; and shall exercise a like jurisdiction from courts of bank- ruptcy not within any organized circuit of the United States and from tie 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 be prescribed by said Supreme Court, in the following cases and no other: First. Where the amount in controversy exceeds the sum of two thou- sand dollars, and the question involved is one which might have been taken on appeal or writ of error from the highest court of a state to the Supreme Court of the United States; or Second. Where some justice of the Supreme Court shall certify that in his opinion the determination of the question involved in the allow- ance 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. (36 Stats. 1159; 5 Fed. Stats. Ann., 2d ed., p. 919; 2 U. S. Comp. Stats. 1916, 1229; Simkins' Federal Equity Suit, 3d ed., p. 745.) 253 (Re-enacting 710, Rev. Stats.). Cases on writ of error to revise the judgment of a state court in any criminal case shajl 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. (36 Stats. 1160.) 254 (Drawn from Act Mch. 3, 1877, c. 105). 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 judg- ment is against the United States. (36 Stats. 1160.) 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 th.- District of Columbia, for the space of three years, and shall have main- tained a good standing before such court, and who shall be a person of good moral character, shall, on motion, and the production of such records, be admitted to practice before the Supreme Court of the United State*. 796 APPENDIX. CHAPTER ELEVEN. PROVISIONS COMMON TO MORE THAN ONE COURT. SEO. 256. Cases in which jurisdiction of United States courts shall be exclusive of state courts. 257. Oath of United States judges. 258. Judges prohibited from prac- ticing law. 259. Traveling expenses, etc., of cir- cuit justices and circuit and district judges. 260. Salary of judges after resigna- tion. 261. Writs of ne exeat. 262. Power to issue writs. 263. Temporary restraining orders. 264. Injunctions; in what eases judge may grant. 265. Injunctions to stay proceedings in state courts. SEO. 266. Injunctions based upon alleged unconstitutionality of state statutes; when and by whom may be granted. ' 267. When suits in equity may be maiDtained. 2-68. 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 for- eign consuls, etc., in certain cases. 272. Parties may manage their causes personally or by counsel. 273. Certain officers forbidden to act as attorneys. 274. Penalty for violating preceding section. 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: 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; sav- ing 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 condemna- tion 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. THE JUDICIAL CODS. 797 Eighth. Of all suits and proceedings against ambassadors, or other public ministers, or their domestics, or domestic servants, or against eon- 4 suls or vice consuls. 257 (Re-enacting 712, Rev. Stats.). The justices of the Supreme Court, the circuit judges, and the district judges, hereafter appointed, shall take the following oath before they proceed to perform the duties of their respective offices: "I, , do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially 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." (36 Stats. 1161.) 258 (Re-enacting 713, Rev. Stats.). It shall not be lawful for any judge appointed under the authority of the United States to exercise the profession or employment of counsel or attorney, or to be engaged in the practice of the law. Any person offending against the prohibition of this section shall be deemed guilty of a high misdemeanor. (36 Stats. 1161.) 259 (Drawn from 554, Rev. Stats.). The circuit justices, the circuit and district judges of the United States, and the judges of the district courts of the United States in Alaska, Hawaii, and Porto Rico, shall each be allowed and paid his necessary expenses of travel, and his reasonable expenses (not to exceed ten dollars per day) actually incurred for main- tenance, consequent upon his attending court or transacting other official business in pursuance of law at any place other than his official place of residence, said expenses to be paid by the marshal of the district in which such court is held or official business 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 bis actual residence at which either a circuit court of appeals or a district court is regularly held. Every such judge shall, upon his appointment, 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. (36 Stats. 1161.) 260 (Re-enacting 714, Rev. Stats.). When any judge of any court of the United States appointed to hold his office during good behavior resigns his office, after having held a commission or commissions as jud.se of any such court or courts at least ten years continuously, and having 798 APPENDIX. 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 resignation. (36 Stats. 1161.) 261. Writs of ne exeat may be granted by any justice of the Supreme Court, in cases where they might be granted by the Supreme Court; and by any district judge, in cases where they might be granted by the district court of which he is a judge. But no writ of ne exeat shall be granted unless a suit in equity is commenced, and satisfactory proof is made to the court or judge granting the same that the defendant designs quickly to depart from the United States. (36 Stats. 1162.) 262. The Supreme Court and the district courts shall have power to issue writs of scire facias. The Supreme Court, the circuit courts of appeals, and the district courts shall have power to issue all writs not specifically provided for by statute, which may be necessary for the exer- cise of their respective jurisdictions, and agreeable to the usages and principles of law. (36 Stats. 1162; 5 Fed. Stats. Ann., 2d ed., p. 928; 2 U. S. Comp. Stats. 1916, 1239; Foster's Federal Practice, 5th ed., pp. 8, 1409, 1527, 2413; Simkins' Federal Equity Suit, 3d ed., p. 41.) 263 (Repealed 17, Clayton Act of Oct. 15, 1914, c. 323, 38 Stats. 737). 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. 264 (Drawn from 719, Rev. Stats.). 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, elsewhere than within such circuit, or at such place outside of the same as the parties may stipulate in writing, except when it cannot be heard by the district judge of the district. In case of the absence from the district of the district judge, or of his disability, any circuit judge of the circuit in which the district is situated may grant an injunction or restraining order in any case pending in the district court, where the same might be granted by the district judge. THE JUDICIAL CODE. 799 265 (Re-enacting 720, Rev. Stats.). The writ of injunction shall not be granterl 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. 266 (As Amended Act March 4, 1913, c. 160). No interlocutory in- junction suspending or restraining .the enforcement, operation, or execu- tion of any statute of a state by restraining the action of any officer of such state in the enforcement or execution of such statute, or in the enforcement or execution of an order made by an administrative board or commission acting under and pursuant 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 cimiit judge acting as district judge, upon the ground of the uncon- stitutionally of such statute, unless the application for the same shall be presented to a justice of the Supreme Court of the United States, or to a circuit or district judge, and shall be heard and determined bylhree judges, of whom at least one shall be a justice of the Supreme Court, or a circuit judge, and the other two may be either circuit or district judges, and unless a majority of said three judges shall concur in granting such application. Whenever such application as aforesaid is presented to a justice of the Supreme Court, or to a judge, he shall immediately call to 'his assistance to hear and determine the application two other judges: Provided, however, That one of such three judges shall be a justice of the Supreme Court, or a circuit judge. Said application shall not be heard or determined before at least five days' notice of the hearing has been given to the governor and to the attorney general of the state, and to such other persons as may be defendants in the suit : Provided, That if of opinion that irreparable loss or damage would result to the complainant unless a temporary restraining order is granted, any justice of the Supreme Court, or any circuit or district judge, may grant such temporary restrain- ing order at any time before such hearing and determination of the appli- cation for an interlocutory injunction, but such temporary restraining order shall remain in force only until the hearing and determination of the application for an interlocutory injunction upon notice as aforesaid. The hearing upon such application for an interlocutory injunction shall be given 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, alter notice and hearing, an interlocutory injunction in such case. It is further provided that if before the final hearing of such application a suit shall 800 APPENDIX. have been brought in a court of the State having jurisdiction thereof under the laws of such State, to enforce such statute or order, accom- panied 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 pending the final determination of such suit in the courts of the Stafe. 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 prose- cuted with diligence and good faith. (36 Stats. 1162, as amended by 37 Stats. 1013.) 267 (Re-enacting 723, Rev. Stats.). 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. (36 Stats. 1163.) 268. The said courts shall have power to impose and administer all necessary oaths, and to punish, by fine or imprisonment, at the discretion of the court, contempts of their authority: Provided, That such power to punish contempts shall not be construed to extend to any cases except the misbehavior of any person in their presence, or so near thereto as to obstruct the administration of justice, the misbehavior of any of the officers of said courts in their official transactions, and the disobedience, or resistance by any such officer, or by any party, juror, witness, or other person to any lawful writ, process, order, rule, decree, or command of the said courts. 269. All of the said courts shall have power to grant new trials, in cases where there has been a trial by jury, for reasons for which new trials have usually been granted in the courts of law. 270. The judges of the Supreme Court and of the circuit courts of appeals and district courts, United States commissioners, and the judges and other magistrates of the several States, who are or may be authorized by law to make arrests for offenses against the United States, shall have the like authority to hold to security of the peace and for good behavior, in cases arising under the Constitution and laws of the United States, as may be lawfully exercised by any judge or justice of the peace of the respective states, in cases cognizable before them. 271. The district courts and the United States commissioners shall have power to carry into effect, according to the true intent and meaning thereof, the award or arbitration or decree of any consul, vice consul, or commercial agent of any foreign nation, made or rendered by virtue of THE JUDICIAL CODK. 801 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 inter- ests 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 commis- sioners may issue all proper remedial process, mesne and final, to cany 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 authority of the United States, until such award, arbi- tration, or decree is complied with, or the parties are otherwise discharged therefrom, 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 commercial agent: Provided, however, That the expenses of the said imprisonment and main- tenance of the prisoners, and the cost of the proceedings, shall be borne by such foreign government, or by its consul, vice consul, or commercial agent requiring such imprisonment. The marshals of the United States shall serve all such process, and do all other acts necessary and proper to carry into effect the premises, under the authority of the said courts and commissioners. '272 (Re-enacting 747, Rev. Stats.). 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. (36 Stats. 1164.) 273 (Re-enacting 748, Rev. Stats.). No clerk, or assistant or deputy clerk, of any territorial, district, or circuit court of appeals, or of the court of claims, or of the Supreme Court of die 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 whirli i acting as such officer. (36 Stats. 1164.) 274 (Re-enacting 749, Rev. Stats.). Whoever shall violate the pro- visions of the preceding section shall be stricken from the roll of ntt>r neys 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 dismissal from office. (36 Stats. 1164.) Manual 51 802 i APPENDIX. Act March 3, 1915, c. 90. (Amendment of suit brought on wrong sida of court Equitable defenses interposed in actions at law Amending where diverse citizenship is defectively alleged.) That the Act entitled "An Act to codify; revise, and amend the laws relating to the judiciary," approved March third, nineteen hundred and eleven, be, and the same is hereby, amended by inserting after section two hundred and seventy-four thereof three new sections, to be numbered, respectively, two hundred and seventy-four a, two hundred and seventy-four b, and two hundred and seventy-four c, reading as follows: 274a. That in case any of said courts shall find that a suit at law should have been brought in equity or a suit in equity should have been brought at law, the court shall order any amendment to the pleadings which may be necessary to conform them to the propfer practice. Any party to the suit shall have the right, at any stage of the cause, to amend his pleadings so as to obviate the objection that his suit was not brought on the right side of the court. The cause shall proceed and be determined upon such amended pleadings. All testimony taken before such amend- ment, if preserved, shall stand as testimony in the cause with like effect as if the pleadings had been originally in the amended form. 274b. That in all actions at law equitable defenses may be inter- posed by answer, plea, or replication without the necessity of filing a bill on the equity side of the court. The defendant shall have the same rights in such case as if he had filed a bill embodying the defense of seeking the relief prayed for in such answer or plea. Equitable relief respecting the subject matter of the suit may thus be obtained by answer or plea. In case affirmative relief is prayed in such answer or plea, the plaintiff shall file a replication. Review of the judgment or decree entered in such case shall be regulated by rule of court. Whether such review be sought by writ of error or by appeal- the appellate court shall have full power to render such judgment upon the records as law and justice shall require. 274c. That where, in any suit brought in or removed from any state court to any district of the United States, the jurisdiction of the district court is based upon the diverse citizenship of the parties, and such diverse citizenship in fact existed at the time the suit was brought or removed, though defectively alleged, either party may. amend at any stage of the proceedings and in the appellate court upon such terms as the court may impose, so as to show on the record such diverse citizenship and jurisdiction, and thereupon such suit shall be proceeded with the same as though the diverse citizenship had been fully and correctly pleaded at the inception of the suit, or, if it be a removed case, in the petition for removal. (38 Stats. 956.) THE JUDICIAL CODE. CHAPTER TWELVE. JURIES. Oft 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. ML 283. Foreman of grand jury. 284. Grand juries, when summoned. 286. Discharge of grand juries. 286. Jurors not to serve more than once a year. 287. Challenges. 288. Persons disqualified for service on jury in prosecution for polygamy, etc. 275. Jurors to serve in the courts of the United States, in each state respectively, shall have the same qualifications, subject 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. 276. All such jurors, grand and petit, including those summoned dur- ing 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 prescribed in the section last preced- ing, 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 commission in districts having more than one judge, which com- missioner 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 politi- cal 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. 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 favorable 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. 278. No citizen possessing all other qualifications which are or may h,e prescribed by law shall be disqualified for service as grand or polit juror in any court of the United States on account of race, color, or previous condition of servitude. 804 APPENDIX. 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 person named in such writ who resides else- where 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 registered and deposited in the postoffice addressed to such person at his usual postoffice address. And the receipt of the person so addressed for such registered copy shall be regarded as personal service of such writ upon such person, and no mileage shall be allowed 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. 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 provided in the preceding section. 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 re- quired in such cases by the laws of the several states. 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 attendance other jurors sufficient to coniplete the grand jury, the court shall make a like order to the marshal to summon a suffi- cient number of persons for that purpose. 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. THE JUDICIAL CODE. 805 284. No grand jury shall be summoned to attend any district 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 exigencies of the public service require it, the judge may, in his discretion, also order a venire to issue for a second grand jury. And said court may in term order a grand jury to be sum- moned 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 imprisonment 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 recog- nizance before indictment found. 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. 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. 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 U.nited States to six peremptory chal- lenges ; and in all other cases, civil and criminal, each party shall be en- titled 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 sec- tion. 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. 288. In any prosecution for bigamy, polygamy, or unlawful cohabi- tation, under any statute of the United States, it shall be sufficient cause of challenge to any person drawn or summoned as a juryman or talesman 806 APPENDIX. First, that he is or has been living in the practice of bigamy, poly- gamy, 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 Refer- ence to Bigamy, and for Other Purposes," approved March twenty- second, eighteen hundred and eighty-two, or by section fifty-three hun- dred and fifty-two of the Revised Statutes of the United States, or the act of July first, eighteen hundred and sixty-two, entitled "An Act to Punish and Prevent the Practice of Polygamy in the Territories of the United States and Other Places, and Disapproving and Annulling Cer- tain 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 practice 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 person 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 prosecution against him for any offense above named; but if he declines to answer on any ground, lie shall be rejected as incompetent. THE JUDICIAL CODE. 807 CHAPTER THIRTEEN. GENERAL PROVISIONS. sm 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 construc- tion not to be drawn by reason of arrangement of sections. 296. Act may be designated aa "The Judicial Code." 289. (New.) The circuit courts of the United States, upon the taking effect of this act, shall be, and hereby are, abolished ; and thereupon, 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 belong- ing 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 received, 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 dis- trict 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 wiih 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. (36 Stats. 1167.) 290. (New.) All suits and proceedings pending in said circuit courts on the date of the taking effect of this act, whether originally brought therein or certified thereto from the district courts, shall thereupon and thereafter be proceeded with and disposed of in the district courts in the same manner and with the same effect as if originally begun therein, the record thereof being entered in the records of the circuit courts so transferred as above provided. (36 Stats. 1167.) 808 APPENDIX. 291. Wherever, in any law not embraced within this act, any refer- ence 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. 292. Wherever, in any law not contained within this act, a refer- ence is made to any law revised or embraced herein, such reference, upon the taking effect hereof, shall be construed to refer to the section of this act into which has been carried or revised the provision of law to which reference is so made. 293. The provisions of sections one to five, both inclusive, of the Revised Statutes, shall apply to and govern the construction of the pro- visions of this act. The words "this title," wherever they occur herein, shall be construed to mean this act. 294. The provisions of this act, so far as they are substantially the same as existing statutes, shall be construed as continuations thereof, and not as new enactments, and there shall be no implication of a change of intent by reason of a change of words in such statute, unless such change of intent shall be clearly manifest. 295. The arrangement and classification of the several sections of this act have been made for the purpose of a more convenient and orderly arrangement of the same, and therefore no inference or presump- tion of a legislative construction is to be drawn by reason of the chap- ter under which any particular section is placed. 296. This act may be designated and cited as "The Judicial Code." (36 Stats. 1168.) CHAPTER FOURTEEN. REPEALING PROVISIONS. RFC. 297. Sections, acts, and parts of acts repealed. 2&8. Repeal not to affect tenure of office, or salary, or compensa- tion of incumbent's, etc. 299. Accrued rights, etc., not af- fected. 300. Offenses committed, and penal- ties, forfeitures, and liabili- ties incurred, how to be prose- cuted and enforced. 301. Date this act shall be effective. 297. The following sections of the Revised Statutes and acts and parts of acts are hereby repealed : THE JUDICIAL CODE. 800 Sections five hundred and thirty to five hundred and sixty, both inclu- sive; 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; sections six hundred and fifty to six hundred and ninety-seven, both inclusive; section six hundred and ninety-nine; sections seven hundred and two to seven hundred and fourteen, both inclusive; sections seven hundred and sixteen to seven hundred and twenty, both inclusive; section seven hundred and twenty- three; sections seven hundred and twenty-five to seven hundred and forty-nine, both inclusive; 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. 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 sections 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 Revised 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 Executive Departments in the Investigation of Claims and Demands against the Government," approved March third, eighteen hundred and eighty -three. "An Act Regulating Appeals from the Supreme Court of the District of Columbia and the Supreme Courts of the Several Territories," approved March third, eighteen hundred and eighty-five. "An Act To Provide for the Bringing of Suits against the Govern- ment of the United States," approved March third, eighteen hundred and eighty-seven, except sections four, five, six, seven, and ten thereof. 810 APPENDIX. Sections one, two, three, four, six, and seven of an act entitled "An Act to Correct the Enrollment of an Act Approved March Third, Eigh- teen Hundred and Eighty-Seven, Entitled 'An Act to Amend Sections One, Two, Three, and Ten of an Act to Determine the Jurisdiction of the Circuit Courts of the United States, and to Regelate the Removal of Causes from the State Courts, and for Other Purposes, ' approved March Third, Eighteen Hundred and Seventy-Five," approved August thir- teenth, eighteen hundred and eighty-eight. "An Act to Withdraw from the Supreme Court Jurisdiction of Criminal Cases not Capital and Confer the Same on the Circuit Courts of Appeals," approved January twentieth, eighteen hundred and ninety-seven. "An Act to Amend Sections One and Two of the Act of March Third, Eighteen Hundred and Eighty-Seven, Twenty-Fourth Statutes at Large, Chapter Three Hundred and Fifty-Nine, " approved June twenty-seventh, eighteen hundred and ninety-eight. "An Act to Amend the Seventh Section of the Act Entitled 'An Act to Establish Circuit Courts of Appeals and to Define and Regulate in Certain Cases the Jurisdiction of the Courts of the United States, and for Other Purposes,' Approved March Third, Eighteen Hundred and Ninety-One, and the Several Acts Amendatory Thereto, " approved April fourteenth, 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 cir- cuits, or judicial districts or divisions thereof, or fixing or changing the times or places of holding court therein, enacted prior to February first, nineteen hundred and eleven. Sections one, two, three, four, five, the first paragraph of section six, and section seventeen of an act entitled "An Act to Create a Commerce Court, and to Amend an Act Entitled 'An Act to Regulate Commerce,' Approved February Fourth, Eighteen Hundred and Eighty-Seven, as Heretofore Amended, and for Other Purposes," approved June eighteenth, nineteen hundred and ten. Also other acts and parts of acts, in so far as they are embraced within and superseded by this act, are hereby repealed; the remaining portions thereof to be and remain in force with the same effect and to the same extent as if this act had not been passed. (36 Stats. 1168. In general. United States v. Winslow, 227 U. S. 202, 57 L. Ed, 481, 33 Sup. Ct. 253.) 298. The repeal of existing laws providing for the appointment of fudges and other officers mentioned in this act, or affecting the organ- THE JUDICIAL CODE. 811 ization 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 position by virtue of any law. (36 Stats. 1169. In general, United States v. New Departure Mfg. Co., 195 Fed. 778.) 299. The repeal of existing laws, or the amendments thereof, em- braced in this act, shall not affect any act done, or any right accruing or accrued, or any suit or proceeding, including those pending on writ of error, appeal, certificate, or writ of certiorari, in any appellate court referred to or included within, the provisions of this act, pending at the time of the taking effect of this act, but all such suits and proceedings, and suits and proceedings for causes arising or acts done prior to such date, may be commenced and prosecuted within the same time, and with the same effect, as if said repeal or amendments had not been made. (36 Stats. 1169. In general, Washington Home for Incurables v. Am. Security Co., 224 U. S. 486, 56 L. Ed. 854, 32 Sup. Ct. 554.) 300. All offenses committed, and all penalties, forfeitures, or lia- bilities incurred prior to the taking effect hereof, under any law em- braced 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. (36 Stats. 1169. In general, In re Steiner et al., 195 Fed. 299. 301. This act shall take effect and be in force on and after January first, nineteen hundred and twelve. Approved March 3, 1911. (36 Stats. 1169.) INSTRUCTIONS AS TO APPLICATIONS FOR WRITS OF CER- TIORARI UNDER ACTS OF MARCH 3, 1891, AND SEPTEMBER 6, 1916. The following are the requirements on applications for writs of certiorari: Petitions are docketed in this court as , Petitioner, 7. , Respondent. Before the petition will be docketed there must be furnished this office: (1) An original petition with written signature of counsel. (2) A certified copy of the transcript of the record, including all proceedings in the United States Circuit Court of Appeals or other appellate court. (3) An order for appearance of counsel for petitioner, signed by a member of the bar of this court. (4) A deposit of twenty-five ($25) dollars on account of costs. Before submission of the petition there must be furnished: (1) Proof of service of notice of date fixed for submission and copies of petition and brief upon counsel for the respondent. 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 must be served on counsel for the respondent at least two weeks before such date except where the counsel to be notified resides west of the Rocky Mountains, in which case the time shall be at least three weeks. (2) Thirty (30) printed copies of the petition and brief in support of petition, if any such brief is to be filed, under one cover. (3) At least nine (9) uncertified copies of the record, which must contain all of the proceedings in the United States Circuit Court of Appeals or other appellate court as well as those in the trial court. These copies may be made up by using copies of the record as printed for the appellate court and adding thereto printed copies of the pro- ceedings in that court. If a sufficient number of records thus made up cannot be obtained, making it necessary to reprint the record for use on the hearing of the petition, fifty (50) copies must be printed under my supervision in order that, should the petition be granted, there may be a sufficient number for use on the final hearing. Monday being motion day, some Monday must be fixed upon by counsel for petitioner for the submission of the petition. No oral (813) 814 APPENDIX. argument is permitted on such petitions but they must be called up and submitted in open court by counsel for petitioner, or by some attorney in his behalf. If a respondent desires to oppose a petition, thirty (30) copies of a brief for such respondent must be filed. These briefs must bear tho name of a member of the bar of this court, who should also enter an appearance for the respondent. It is not necessary, however, for such counsel to be present in court when the petition is submitted. All papers in the case must be filed not later than the Saturday preceding the Monday fixed for the submission of the petition. JAMES D. MAKER, Clerk, Supreme Court of the United States. File No. . Supreme Court of the United States. No. , October Term, 191. vs. The clerk will enter my appearance as counsel for the (Name) (P. O. Address) - NOTE. Must be signed by a member of the bar of the supreme court United States. Individual and not firm names must be signed. EULES OF THE SUPBEME COURT OF THE UNITED STATES. Promulgated December 22, 1911. With Amendments of February 26, April 1, and June 10, 1912, March 20 and June 12, 1916, and March 26, 1917. Index to these Rules at the end thereof. a NIL! n \ J I n RULES OF THE SUPREME COURT OF THE UNITED STATES. 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 attor- ney or counsellor, in this court, or in any other court, while he shall continue to be clerk of this court. 2. The clerk shall not permit any original record or paper to be taken from the courtroom, or from the office, without an order from the court, except as provided by Rule 10. 2. ATTORNEYS AND COUNSELLORS. 1. It shall be requisite to the admission of attorneys or counsellors lo 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, an.d that their private and professional characters shall appear to be fair. 2. They shall respectively take and subscribe the following oath or affirmation, viz : I, , do solemnly swear (or affirm) that I will demean myself, as an attorney and counsellor of this court, uprightly, and according to law; and that I will support the Constitution of the United State*. 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 alterations therein as circumstances may render necessary. Mwwl 53 (817) 818 APPENDIX. BILL OF EXCEPTIONS. . The judges of the district courts in allowing bills of exceptions 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 matters of law in such charge to which he excepts; and those matters of law, and those only, shall be inserted in the bill of exceptions and allowed by the court. 2. Only so much of the evidence shall be embraced in a bill of excep- tions as may be necessary to present clearly the questions of law in- volved 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. 5. 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 subpoena, 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. MOTIONS. --, :. -r/Trt'j rroo6 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 argument of a motion, and no more, without special leave of the court, granted before the argument begins. BULKS OP THE SUPREME COURT. 819 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 motions to docket and dismiss under Rule 9, must be submitted in the 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 counsel for plaintiff in error or appellant of record in this court, at least three weeks before the time fixed for submitting the motion, in all cases except where the counsel to be notified resides west of the Rocky Mountains, in which case the notice shall be at least thirty days. AJB- davits 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 satis- factory 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 provided 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 nevertheless, 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 hear- ing 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 immediately after the rcn.linu: of opinions, if such motions shall be made before the court shall have entered upon the hearing of a case upon the docket. 820 APPENDIX. / 7. LAW LIBRARY. 1. During the session of the court, any gentleman of the bar having 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 one time three) from the library, he being thereby responsible for the due return of the same within a reasonable time, or when required. by the clerk. And in case the same shall not be so returned, the party receiving the same shall be responsible for and forfeit and pay twice the value thereof, and also one dollar per day for each day's 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, together 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 any one except the justices of the court. 8. WRIT OP ERROR AND APPEAL, RETURN AND RECORD. 1. The clerk of the court to which any writ of error may be directed shall make return of the same, 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 order to enable the Clerk to perform such duty and for the pur- pose 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 attorney to file with the clerk of the lower court, together with proof or acknowledg- ment of service of a copy on the appellee or defendant in error, or his counsel, a 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 incorporated into the transcript RULES OF THE SUPREME CO UBT. "L'l 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 additional portions of the record desired by him. The clerk of the lower court shall transmit to this Court as the tran- script of the record in the ease only the portions of the record below designated by both parties as above provided. The parties or their counsel, however, may agree by written stipula- tion to be filed with the clerk of the lower court the portions of the record which shall constitute the transcript of record on appeal or writ of error, and the clerk in such case shall transmit only the papers designated in such stipulation. If this Court shall find that portions of the record unnecessary to a proper presentation of the case have been incorporated into the tran- script 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 appeal, such presiding judge may make such rule or order for the safe-keeping, transporting, and return of such original papers as to him may seem proper, and this court will receive and consider such original papers in connection with the transcript of the proceedings. 5. All appeals, writs of error, and citations must be made returnable not exceeding thirty days from the day of signing the citation, whether the return day fall in vacation or in term time, and bo 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. 822 APPENDIX. 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 determination of questions of law arising on the record, shall be confined to the pleadings, the findings of fact, and conclusions of law thereon, the bills of excep- tions, 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 have the cause docketed and dis- missed upon producing a certificate, whether in term time or vacation, from the clerk of the court wherein the judgment or decree was ren- dered, stating the case and certifying that such writ of error or appeal has been duly sued out or allowed. And in no case shall the plaintiff in error or appellant be 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 docket- ing the case shall be entered. 10. 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 BULKS OF THE SUPREME COURT. 823 :the payment of his fees as he may require or otherwise satisfy him in ' that behalf. 2. Immediately after the designation of the parts of the record to be printed or the expiration of the time allotted therefor, the clerk shall make an estimate of the cost of printing the record, his fee for pre- paring it for the printer and supervising fee, and other probable fees, and upon application therefor shall furnish the same to the party docketing the case. If such estimated sum be not paid within ninety days after the cause is docketed, it shall be the duty of the clerk to report that fact to the court, and thereupon the cause will be dismissed, unless good cause to the contrary is shown. 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, section 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 printed 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 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 estimate, the amount of the excess shall be paid to the clerk before the delivery of a printed copy to either party or his counsel. 7. In case of reversal, affirmance, or dismissal, with 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 aeainst such parties or sureties, respectively, to compel payment of said fees. 9. When the record is filed, or within twenty days thereafter, the plaintiff in error or appellant may file with the clerk a statement of the points 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 824 APPENDIX. of the same on the adverse party The adverse party, within thirty days thereafter, may designate in writing, filed with the clerk, additional parts of the record which he thinks material; and, if he shall not do so, he shall be held to have consented to a hearing on the parts desig- nated 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 points 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 defend- ant 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, section 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 pro- ceedings in a foreign language, and the record does not also contain a translation of such document, paper, testimony, or other proceedings, made under the 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. 12. FUETHEB PROOF. 1. In all cases where further proof is ordered by the court, the depositions which may be taken shall be by a commission, tp be issued 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 direc- tion of any judge thereof; and no such commission shall issue but upon RULES OP THE SUPREME COURT. 825 ft interrogatories, to be filed by the party applying for the commission, and notice to the opposite party or his agent or attorney, accompanied with a copy of the interrogatories so filed-, to file cross-interrogatories within twenty days from the service of snch notice: Provided, however, Tliat nothing in this rule shall prevent any party from giving oral testi- mony 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, PO objection shall hereafter be allowed to be taken to the admissibility 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. CERTIORAKL No certiorari for diminution of the record will be hereafter awarded in any case, unless a motion therefor shall be made in writing, and the facts on which the 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 volun- tarily come in and be admitted parties to the suit, and thereupon the - case shall be heard and determined as in other cases; and if such representatives shall not voluntarily become parties, then the other party may suggest the death on the record, and thereupon, on motion, obtain an order that unless such representatives shall become parties within the first ten days of the ensuing term, the party moving for such order, if defendant in error or appellee shall be entitled to have 826 APPENDIX. * the writ of error or appeal dismissed; and if the party so moving shall be plaintiff in error or appellant he shall be entitled to open the record, and on hearing have the judgment or decree reversed, if it be erroneous: Provided, however, That a copy of every such order shall be printed in some newspaper of general circulation within the State, Territory, or District from which the case is brought, for three successive weeks, at least sixty days before the beginning of the term of the Supreme Court then next ensuing. 2. When the death of a party is suggested, and the representatives 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, rendered 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 proper representa- tive within the jurisdiction of the court which rendered such final judg- ment or decree, so that the suit can not 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 commence- ment 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 representa- tive within the jurisdiction of the court which rendered said judgment or decree, so that the suit could not be revived in that court, and that said party had a proper representative in some State or Territory of the United States, and stating therein the name and character of suclT . representative, and the State or Territory in which Such representative resides; and, upon such suggestion, he may, on motion, obtain an order that, unless such representative shall make himself a party within the first ten days of the ensuing term of the court, the plaintiff in error or appellant shall be entitled to open the record, and, on hearing, have the judgment or decree reversed, if the same be erroneous: Provided, however, That a proper citation reciting the substance of such order shall be served upon such representative, either personally or by being RULES OP THE SUPREME COUBT. 827 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 snch representative have not been taken within time as above required, by the opposite party, the case shall abate: And provided, also, That the said representative may at any time before or after said suggestion come in and be made a party to the suit, and thereupon the case shall proceed, and be heard and 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 argument 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 appellant, unless sufficient cause is shown for further postponement 828 APPENDIX. 20. 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 number 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 addi- tion, 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 attor- neys 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 parle argument. 4. No brief or argument will be received, either through the clerk or otherwise, after a case has been argued or submitted, except upon leave granted in open court after notice to opposing counsel. 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 ap- plication, be furnished to each of the counsel engaged upon the opposite side. 2. This brief shall contain, in the order here stated- (1) A concise abstract, or statement of the case, presenting succinctly the questions involved and the manner in which they are raised. (2) A specification of the errors relied upon, which in cases brought up by writ of error, shall set out separately and particularly each error asserted and intended to be urged; and in cases brought up by appeal the specification shall state, as particularly as may be, in what the decree is alleged to be erroneous. When the error alleged is to the admission or to the rejection of evidence, the specification shall quote the full substance of the .evidence admitted or rejected. When the error alleged is to the charge of the court, the specification shall set RULES OP THE SUPREME COURT. 829 out the part referred to tot idem verbis, whether it be instructions given or instructions refused. When the error alleged is to a ruling upon the report of a master, the specification shall state the exception to the report and the action of the court upon it. (3) A brief of the argument, exhibiting a clear statement of the points of law or fact to be discussed, with a reference to the pages of the record and the authorities relied upon in support of each point. When a statute of a State is cited, so much thereof as may be deemed necessary to the decision of the case shall be printed at length. 3. The counsel for a defendant in error or an appellee shall file with the clerk thirty printed copies of his argument, at least one week before 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 statement of the case, unless that presented by the plaintiff in error or appellant is controverted. - 4. When there is no assignment of errors, as required by section 997 of the Revised Statutes, counsel will not be heard, except at the request of the court; and errors not specified according to this rule will be disregarded; but the court, at its option, may notice a plain error not assigned or specified. 5. When, according to this rule, a plaintiff in error or an appellant is in default, the case may be dismissed on motion ; and when a defend- ant in error or an appellee is in default, he will not be heard, except on consent of his adversary, and by request of the court. 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 sections, shall be filed by the clerk unless the same shall be accompanied by satis- factory proof of service upon counsel for the adverse party. 8. Every brief of more than twenty pages shall contain on its front fly leaves a subject index with page references, the subject index to be supplemented by a list of all cases referred to, alphabetically arranged, together with references to pages where the cases are cited. 22. ORAL ARGUMENTS. 1. The plaintiff in error or appellant in this court shall be entitled to open and conclude the argument of the case. Hut 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. 830 APPENDIX. 2. Only two counsel will be heard for each party on the argument of a case. 3. One and one-half hours on each side will be allowed for the argu- ment, 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 Stats. 1246, forty-five minutes only on each side will be allowed for the argument unless the time be extended. The time thus allowed may be apportioned between the counsel on the same side, at their discretion; provided, always, that a fair opening of the case shall be made by the party having the opening and closing arguments. 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 bear 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 dismiss 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 RULES OP THE SUPREME COURT. ordered by the court. The cost of the transcript of the record from the court below shall be a part of such costs, and be taxable in that court as costs in the case. 4. Neither of the foregoing sections shall apply to cases where the United States are a party; but 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 further proceedings may be had in such court as to law and justice may apper- tain. 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 empower- ing this court to prepare a table of fees to be charged by the clerk of this court, the following table is adopted: For docketing a case and filing and indorsing the transcript of the record, five dollars. For entering an appearance, twenty-five cents. For entering a continuance, twenty-five cents. For filing a motion, order, or other paper, twenty-five cents. For entering any rule, or for making or copying any record or other paper, twenty cents per folio of each one hundred words. For transferring each case to a subsequent docket and indexing the same, one dollar. For entering a judgment or decree, one dollar. For every search of the records of the court, one dollar. For a certificate and seal, two dollars. For receiving, keeping, and paying money in pursuance of any statute or order of court, two per cent, on the amount so received, kept, and paid. For an admission to the bar and certificate under seal, ten dollars. For preparing the record or a transcript tln-n-nt for the printer, in- dexing the same, supervising the printing, and distributing the printed copies to the justices, the reporter, the law library, and the partit their counsel, fifteen 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 five cents per folio. 832 APPENDIX. For making a manuscript copy of the record, when required under Rule 10, twenty cents per folio, but nothing in addition for supervising the printing. For issuing a writ of error and accompanying papers, five dollars. For a mandate or other process, five dollars. For filing briefs, five dollars for each party appearing. For every printed copy of any opinion of the court or any justice thereof, certified under seal, two dollars. 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 delivering the same need not be copied by the clerk into a book of records; but at the end of each term the clerk shall cause such printed opinions to be bound in a substantial manner into one or more volumes, and when so bound they shall be deemed to have been recorded. 26. CALL AND ORDER OF THE DOCKET. 1. The court, on the second day in each term, will commence calling 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 argument, the case shall be con- tinued to the next term of the court unless 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 motion of either party. RULES OF TUB SUPREME COURT. 833 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 concerned, 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 contain a brief statement of the matter involved, with the reasons for the application. 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 peculiar 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 upon 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 adjonrn 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, Manual 5 834 APPENDIX.' by their attorneys of record, sign and file with the clerk an agreement in writing directing the case to be dismissed, and specifying the terms on which it is to be 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. 8UPERSEDEAS. Supersedeas bonds in the district courts and Circuit Courts of Appeals 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 otherwise secured, must be for the whole amount of the judgment or decree, including just damages for delay, and costs and interest on the appeal; but in all suits where the property in controversy necessarily follows the event of the suit, as in real actions, replevin, and in suits on mortgages, or where the property is in the custody of the marshal under admiralty process, as in case of capture or seizure, or where the proceeds thereof, or a bond for the value thereof, is in the custody or control of the court, indemnity in all such cases is only required in an amount sufficient to secure the sum recovered for the use and detention of the property, and the costs of the suit, and just damages for delay, and costs and interest on the appeal. 30. REHEARING. A petition for rehearing after judgment can be presented only at the term at which judgment is entered, unless by special leave granted during the term; and must be printed and briefly and distinctly state its grounds, and be supported by certificate of counsel; and will not be granted, or permitted to be argued, unless a justice who concurred in the judgment desires it, and a majority of the court so determines. 31. FOEM 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 conveniently bound RULES OF THE SUPREME COURT. 835 together, so as to make an ordinary octavo volume; and, as well as all quotations contained therein, and the covers thereof, must be printed in clear type (never smaller than small pica) and on unglazed paper. 32. WRITS OP ERROR AND APPEALS IN CASES INVOLVING JURISDICTION OP 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 prescribed by Rule 6, in regard to motions to dismiss writs of error and appeals. 33. MODELS, DIAGRAMS, AND EXHIBITS OP 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 hearing of a case, must be taken away by the parties within one month after the case is decided. When this it not done, it shall be the duty of the marshal to notify the counsel in the case, by mail or otherwise, of the requirements of this rule; and if the articles are not removed within a reasonable time after the notice is given, he shall destroy them, or make such other disposition of them as to him may seem best. 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 prisoner shall not be disturbed. 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 provided. 836 APPENDIX. 3. Pending an appeal from the final decision of any court or judge discharging the prisoner, he shall be enlarged upon recognizance, with surety, for appearance to answer the judgment of the appellate court, except where, for special reasons, sureties ought not to be required. 35. ASSIGNMENT OF ERRORS. 1. Where an appeal or a writ of error is taken from a district court direct to this court, under section 238 of the act entitled "An act to codify, revise, and amend the laws relating to the judiciary," approved March 3, 1911, chapter 231, the plaintiff in error or appellant shall file with the clerk of the court below, with his petition for the writ of error or appeal, an assignment of errors, which shall set out separately and particularly each error asserted and intended to be urged. No writ of error or appeal shall be allowed until such assignment of errors shall have been filed. When the error alleged is to the admission or to the rejection of evidence, the assignment of errors shall quote the full substance of the evidence 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 totidem verbis, whether it be in instructions given or in instructions refused. Such assignment of errors shall form part of the transcript of the record, and be printed with it. When this is not done counsel will not be heard, except at the request of the court; and errors not assigned according to this rule will be dis- regarded, but the court, at its option, may notice a plain error not assigned. 2. The plaintiff in error or appellant shall cause the record to be printed, according to the provisions of sections 2, 3, 4, 5, 6, and 9, of Rule 10. 36. APPEALS AND WRITS OF ERROR FROM DISTRICT COURTS. 1. An appeal or a writ of error from a district court direct to this court, in the cases provided for in 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 assigned to the district court, or by any district judge within his dis- trict, and the proper security be taken and the citation signed by him, BULKS OP THE SUPREME COURT. 837 and he may also grant a superscdecu and stay of execution or of pro- ceedings, pending such writ of error or appeal. 2. Where such writ of error is allowed in the case of a conviction of an infamous crime, or in any other criminal case in which it will lie under section 238, the district court, or any judge thereof, or any justice of this court, or any circuit judge assigned to the district court, shall have power, after the citation is served, to admit the accused to bail in such amount as may be fixed. 37. CASES CERTIFIED AND PETITIONS FOR WRITS OF CERTIORARL 1. 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 Appeals shall certify to this court a question or proposition of law, concerning which it desires the instruction of this court for its proper decision, the certificate shall contain a proper statement of the facts on which such question or proposition of law arises. 2. If 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 reason for denying the petition. Thirty printed copies of such petition 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, 838 APPENDIX. and no petition will be received within three days next before the day fixed upon for the adjournment of the court for the term. 4. An application for a writ of certiorari will be deemed in time when the petition therefor, accompanied by the printed record and brief, is filed within the period prescribed by law: Provided this is followed by submitting the petition in open Court on some motion day not later than the first one which follows a period of four weeks after such filing. Notice of the date of submission and copies of the petition and brief must be served as required by Section 3 of this rule. (Promulgated March 26, 1917.) 38. INTEREST, COST, AND FEES. The provisions of Rules 23 and 24 of this court, in regard to interest and costs and fees, shall apply to writs of error and appeals and reviews under the provisions of sections 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. 40. PEACTICE IN CASES FROM CIRCUIT COURTS OF A~PPEALS. 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. INDEX TO RULES OF THE SUPREME COURT. Rules See. Adjournment 7 Admiralty, record in g g Appearance of counsel 9 j for plaintiff in error or appellant, no 16 defendant in error or appellee, no 17 either party, no 18 Appeals in cases involving jurisdiction of district court 32 Appeals under act of March 3, 1911 36 Appeals direct from district court, when and by whom allowed. 36 1 bail to be allowed, when.. 36 2 Argument, oral 22 order of 22 1 time allowed for 22 3 on motions 6 2 printed 20 submission on 20 1 not received after submission 20 4 Assignment of errors 21 2, 4 under act of March 3, 1911 35 1 Attachment for clerk's fees 10 8 Attorneys, admission of 2 1 oath of 2 2 Bail, when and how granted 36 8 Bill of exceptions 4 Briefs 21 contents of 21 2 time for filing by plaintiff in error or appellant 21 1 defendant in error or appellee 21 3 service on opposing counsel required 21 7 index to, when required, etc 21 8 for respondent on oertiorari, when to be filed 37 3 form of printed 31 not received after argument 20 4 Cases involving same question may be heard together 26 8 passed, how restored to call 26 9 dismissal of, in vacation 28 Cert iorari 14 Certiorari to Circuit Court of Appeals, regulations govern- ing applications for 37 S Circuit Courts of Appeals, cases from, etc 37 practice ii 40 (839) 840 APPENDIX. Rules Sec. Citation, eervice of.... 8 5 Clerk ^ 1 Clerk's fees, table of f 24 7 attachment for 10 8 deposit for 10 1 Conference-room library 7 3 Costs of printing record 10 2, 6, 7 how taxed 24 none recoverable in cases where United States in party , 24 4 Counsel, admission of 2 1 appearance of 9 3 no appearance of 18 two only to be heard on argument 22 2 time allowed for argument 22 3 motions 6 2 Custody of prisoners on habeas corpus 34 Damages for delay 23 2 Defendant, no appearance of 17 . Death of a party 15 defendant in error or appellee after judgment in lower court 15 3 Deposit for clerk's fees 10 1 Dismissal in vacation 28 Docketing cases 9 by plaintiff in error or appellant 9 1 defendant in error or appellee 9 2 Docket, call of 26 day-call 26 2 Errors, assignment of 21 4 specification of 21 2 Evidence, new, how taken 12 1 in admiralty 12 2 in the record, objections to 13 Exceptions, bill of 4 Exhibits of material 33 Fees, table of clerk's 24 7 attachment for 10 8 security for 10 1 Habeas corpus, custody of prisoners on 34 Interest 23 in admiralty 23 4 in equity . . .' 23 3 at law 23 1 under act of March 3, 1911 38 INDEX TO RULES OF THE SUPREME COUBT. 841 Rules See, Jurisdiction cases involving district court 32 Law library 7 mode of obtaining books from, bj counsel 7 1 clerk to deposit records in 7 1! of conference-room 7 3 List of cases in briefs, when required, etc 21 8 Mandates 39 Mandate in case dismissed 24 5 in vacation 28 Motions 6 to be in writing 1 notice of 8 3,4 time allowed for argument 6 2 to affirm 6 5 to dismiss 6 4 Motions, notice and service of briefs 6 4 submission of 6 4 to advance 28 6 eases once adjudicated 26 4 criminal cases 26 3 revenue cases 28 5 eases involving jurisdiction of district court . , 4 32 Motion day 6 7 Opinions of the Supreme Court 25 court below to be annexed to record 8 2 Original papers not to be taken from courtroom or clerk's office 1 from court below 8 4 Parties, death of 15 Petitions for certiorari to C. C. A. regulations governing.... 37 3 Plaintiff in error or appellant, no appearance of 16 Practice - Process, form of service of 5 2, 3 Record return of 8 designated record from court below 8 to contain all necessary papers in full 8 opinion of court below 8 translations of papers in foreign language 11 printed under supervision of clerk 10 S printed form of 3 printing parts of 10 cost of 10 (Wtiorari for diminution of 14 842 APPENDIX. Rules See. In admiralty cases 8 6 in cases coming up under act of March 3, 1911 37 how printed 35 2 Rehearing 30 Representatives of deceased parties appearing 15 1 not appearing 15 2 Return to writ of error 8 day 8 5 Revenue cases advanced on motion 26 5 Second term, neither party ready for trial , 19 Security for clerk's fees 10 1 Subpoena, service of.. 5 3 Supersedeas 29 Translations H Writ of error, return to 8 in cases involving jurisdiction of district courts 32 under act of March 3, 1911 36 KULES OP THE UNITED STATES CIRCUIT COURTS OP APPEALS, (INDEXED IN GENERAL INDEX.) (843) RULES OF THE UNITED STATES CIRCUIT COUETS OP APPEALS. STATEMENT. The rules of the United States Circuit Courts of Appeals as they exist in each of the nine circuits are so similar that but one statement of a rule is made where the rule is alike in a number of the circuits. Where there is a variance in different circuits the variance IB shown either by repeating the rule as it is in the several differing circuits, or by explaining the difference. The rule in any particular circuit may be ascertained by noting the num- ber of the circuit at the head of each rule. If a blank line appears in the place allotted to that circuit number, then its rule will be found below ? ith the number of the circuit over it. Follow down vertically beneath the blank line in the place allotted to the circuit number until the number appears. ^ RULE 1. 1st 2d 3d 4th 5th 7th 8th 9th 1. NAME. The court adopts "United States Circuit Court of Appeals for the Circuit ' ' as the title of the court. The above rule is 1, rule 2, in sixth circuit, and its rule 1 is as follows: 6th 1. DEFINITIONS. In these rules "counsel" shall include attorneys, solicitors, proctors, and advocates; "appellant" shall include, also, plaintiff in error, peti- tioner for review or mandamus, and any other party seeking review in this court; "appellee" shall include, also, defendant in error and any other party respondent in this court. RULE 2. 1st 2d 3d 4th 6th 7th 8th 9th 2. SEAL. The seal shall contain the words "United States" on the upper part of the outer edge; and the words "Circuit Court of Appeals" on the lower (845) 846 APPENDIX. part of the outer edge, running from left to right; and the words Circuit" in two lines, in the center, with a dash beneath. The above is 2, rule 2, in the sixth circuit. 6th 2. NAME AND SEAL. 1. Same as rule 1 of the other circuits above. 2. Same as rule 2 of the other circuits above. RULE 3. 3. TERMS AND SESSIONS. One term of this court shall be held annually at the city of Boston at ten o'clock in the forenoon on the first Tuesday of October. Stated sessions thereof shall be there held at the same hour on the first Tues- day of every month, and may be adjourned to such times and places as the court may from time to time designate. But, unless otherwise ordered, any adjournment shall be held to have been made to the first day of the next stated session. 2d One term of this court shall be held annually at the city of New York on the first Monday of October, and shall be adjourned to such times and places as the court may from time to time designate. 3d The terms of this court shall commence and be held on the first Tues- day of March and the first Tuesday of October in each year, at the city of Philadelphia. 4th 1. There shall be held in the city of Richmond, Virginia, three regular terms of this court ; one on the first Tuesday of January, one on the first Tuesday of April, and one on the first Tuesday of October, in each year ; and there shall be held in the city of Ashyille, North Carolina, fine regular term of this court on the first Tuesday of July, in each year. 2. Special sessions of this court shall be held in Richmond, Virginia, on the second Tuesday of every month of the year except in those months in which regular terms of the court are held. During said sessions such orders, judgments or decrees as may be necessary concerning pending RULES OP THE UNITED STATES CIRCUIT COURTS OF APPEALS. 847 cases may be considered and disposed of, opinions in cases theretofore argued may be filed and decrees and judgments relating thereto entered, mandates issued, and any such further action taken as is authorized by the statute in such case made and provided. 3. If at any such special session no judge shall be in attendance, the clerk shall adjourn the court until the next day, or to such time as the senior circuit judge shall direct, and then in case no direction be made, to the next session or term of the court. 6th A session of this court shall be held annually at the city of Atlanta, Georgia, on the first Monday in October; at the city of Montgomery. Alabama, on the third Monday in October; at the city of Fort Worth, Texas, on the first Monday in November; at the city of New Orleans, Louisiana, on the third Monday in November, and shall be adjourned to such other time and places as the court may from time to time order and designate. 6th One term of this court shall be held annually on the Tuesday after the first Monday in October, and adjourned sessions on the Tuesday after the first Monday of each other month in the year, except August and September. At the July session, no causes will be heard, except upon the special order of the court. All sessions shall be held at Cincinnati, unless otherwise specially ordered by the court. 7th A term of this court shall be held annually at the city of Chicago on the first Tuesday in October, and continue until the first Tuesday in October of the succeeding year. Every term shall be adjourned to such time and places as the court may from time to time designate. Unless otherwise specially ordered, the Court x will hold at Chicago three ses- sions for the hearing of causes during each term, beginning on the first Tuesdays in October and January, respectively, and the second Tuesday in April. 8th 1. Three terms of this court will be hold annually, one at the city of St. Paul on the first Monday of May, one nt tlio <-ity of Denver, on the first Monday of September, and one at the city of St. Louis on the first Monday of December. 848 APPENDIX. 2. Cases from Minnesota, North Dakota, South Dakota, Nebraska, Iowa, Kansas, Missouri, Arkansas, and Oklahoma, in which transcripts to be printed under the supervision of the clerk of this court are filed, or transcripts printed before certification by the clerk of the lower court, and proof by affidavit or admission that three copies of the printed tran- scripts have been served on the defendants in error or appellees, or their counsel, are filed on or before the first day of April, and cases from Colorado, Utah, Wyoming, and New Mexico in which transcripts to be printed under the supervision of the clerk of this court are filed, or tran- scripts printed before certification by the clerk of the lower court and proof by affidavit or admission that three copies of the printed tran- scripts have been served on the defendants in error or appellees, or their counsel, and stipulations of the parties for their hearing at the May term in St. Paul are filed on or before the first day of April, and those only, will be heard at the succeeding May term of the court in St. Paul. 3. Cases from Colorado, Wyoming, Utah, and New Mexico in which transcripts to be printed under the supervision of the clerk of this court are filed, or transcripts printed before certification by the clerk of the lower court and proof by affidavit or admission that three copies of the printed transcripts have been served on the defendants in error or appel- lees, or their counsel, are filed on or before the first day of July and cases from the remainder of the circuit in which transcripts to be printed under the supervision of the clerk of this court are filed, or transcripts printed before certification by the clerk of the lower court and proof by affidavit or admission that three copies of the printed transcripts have been served on the defendants in error or appellees, or their counsel, and stipulations of the parties for their hearing at the September term in Denver are filed on or before the first day of July, and those only, will be heard at the succeeding September term in Denver. 4. Cases from Minnesota, North Dakota, South Dakota, Nebraska, Iowa, Kansas, Missouri, Arkansas, and Oklahoma in which transcripts to be printed under the supervision of the clerk qf this court are filed, or transcripts printed before certification by the clerk of the lower court and proof by affidavit or admission that three copies of the printed tran- scripts have been served on the defendants in error or appellees, or their counsel, are filed on or before the first day of October, and cases from Colorado, Wyoming, Utah, and New Mexico in which transcripts to be printed under the supervision of the clerk of this court are filed, or transcripts printed before certification by the clerk of the lower court and proof by affidavit or admission that three copies of the printed tran- scripts have been served on the defendants in error or appellees, or their RULES OP THE UNITED STATES CIRCUIT COURTS OF APPEALS. 849 m , counsel, and stipulations of the parties for their hearing at the Decem- ber term in St. Louis are filed on or before the first day of October, and those only, will be heard at the succeeding December term in St. Ixmis. 5. These terms of the court may be adjourned to such times and places as the court may from time to time designate. 9th One term of this court shall be held annually at the city of San Fran- cisco on the first Monday of October, and shall be adjourned to such times and places as the court may from time to time designate. (See, also, rule 36.) RULE 4. 2d 3d 4th 5th 7th 8th 9th 4. QUORUM. 1. If at any term ["time" for "term," 2d circuit. Add after "term," "or session," 7th and 9th circuit] a quorum does not attend on any day appointed for holding it, any judge who does attend may adjourn the court from time to time [or "from place to place," 4th cir- cuit] or, in the absence of any judge, the clerk may adjourn the court from day to day. If, during a term [add "or session," 7th circuit] after a quorum has assembled, less than that number attend on any day, any judge attending may adjourn the court from ["time to time," 6th circuit] day to day until there is a quorum, or may adjourn without day ["and in the absence of all the judges, the clerk may adjourn the court from day to day," 3d circuit]. 2. Any judge attending when less than a quorum is present may make all necessary orders touching any suit, proceeding, or process, depending in or returned to the court, preparatory to hearing, trial, or decision thereof. 1st. 4. QUORUM. 1. In the absence of a quorum on any day appointed for holding a term, or on any day to which the court is adjourned, any judge who attends shall adjourn the court from day to day; or, if no judge is pres- ent, the clerk shall so adjourn ; and, in the absence of all the judges and the clerk, the marshal or his deputy shall so adjourn. But the court may, from time to time, as provided in rule 3, enter orders directing an Mnl 5* 850 APPENDIX. adjournment, or adjournments, for longer periods than from day to day, or sine die. 2. Same as section 2 for the other circuits above. 6th Same as section 1 for the 5th circuit with the addition of the clause "or, in the absence of any judge, the clerk may adjourn the court for successive intervals of one week until a judge attends" at the end of such section. There is no section 2. RULE 5. 5. CLERK. 1st 2d 8th 1. The clerk's office shall be kept at the place designated in the act creating the court at which a term shall be held annually. 1. The clerk's office shall be kept in the city of 3d 6th Philadelphia Cincinnati 4th 7th Richmond Chicago 5th 9th New Orleans San Francisco 1st 2d 3d 4th 5th 6th 7th 8th 9th 2. The clerk shall not practice, either as attorney or counselor, in this court or in any other court [omit balance of sentence in' 6th and 7th cir- cuits] while he shall continue to be clerk of this court. 3. He shall, before he enters on the execution of his office, take an oath in the form prescribed by 794 of the Revised Statutes and shall give bond in a sum to be fixed ["in the sum of $2.0,000," 5th circuit] and with sureties to be approved, by the court, faithfully to discharge the duties of his office and seasonably to record the decrees, judgments, and determinations of the court. A copy of such bond shall be entered on the journal of the court, and the bond shall be deposited for safekeeping as the court may direct. 4. He shall not permit any original record or paper to be taken from the courtroom or from the office, without an order from the court. 1 l In the 6th circuit add, "or a judge thereof." In. the 9th circuit add, "except as provided in rule 23." RULES OP THE UNITED STATES CIRCUIT COURTS OF AIM 'K M.S. 851 The following sections are added : 5. All fees collected by the clerk, which are not properly taxable as costs in any case, and which are not by law required to be by him de- posited in the Treasury of the United States, shall constitute a fond to be expended by the clerk, under the direction of the court, in the pur- chase of law books for the library of the court. 6. The clerk shall keep an accurate and itemized account of all moneys received by him officially, including costs and fees in cases in the court and fees and moneys collected on any account whatever, and shall de- posit the same as received daily to his credit as clerk, and separately from all individual accounts, in a national bank designated by the senior judge, and at the end of each month, and whenever required by the court or senior judge, shall submit to the senior judge a detailed report show- ing by items all moneys received and all moneys paid out during the month, and the total balances on hand from each and all sources of re- ceipt. Each report shall be accompanied by a statement, over the signa- ture of the cashier or other officer of the bank in which the deposit is kept, of the amount in the bank to the credit of the clerk at the close of the last day included in the report. RULE 6. 8. MARSHAL, CRIER AND OTHER OFFICERS. 3d 4th 5th 9th The marshal and crier shall be in attendance during the sessions of the court, with such number of bailiffs and messengers as the court may from time to time order. 1st Same as above, omitting the words "and crier" after the words "the marshal." 2d 1. Every marshal and deputy marshal shall, before he enters on the duties of his appointment,, take an oath in the form prescribed by 782 of the Revised Statutes, and the marshal shall, before he enters on the duties of his office, give bond in a sum to be fixed, and with sureties to be approved, by the court, for the faithful performance of said duties by himself and his deputies. Said bond shall be filed and recorded in the office of the clerk of the court. 2. Same as rule above in other circuits. 852 APPENDIX. 6th 1. The crier and bailiffs of the district court of any district where this court may be in session, are hereby authorized to act also during such session as crier and bailiffs of this court. 2. A crier or bailiff specially appointed for this court shall, before he enters on his duties, take an oath in the form prescribed by 782 of the Revised Statutes. 3. Same as 1 in 3d circuit. 7th 1 same as 2 in 6th circuit. 2 same as rule in other circuits first above. 8th Same as rule in other circuits first above with the addition of the clause "of the district in which a term or session of the court is held," after the first two words, "the marshal." RULE 7. 7. ATTORNEYS AND COUNSELORS. 1st 2d ~' 7th All attorneys and counselors admitted to practice in the Supreme Court of the United States, or in any circuit or district court * of the United States, 2 shall become attorneys and counselors in this court on taking an oath or affirmation in the form prescribed by rule 2 of the Supreme Court of the United States and on subscribing the roll ; 3 but no fee shall be charged therefor. 3d 7. ATTORNEYS AND COUNSELORS. Same as in 2d circuit, adding: "and all attorneys and counselors of the district court of the United States for the 3d circuit, shall be attorneys and counselors of this court without taking any further oath." 4th 7. ATTORNEYS AND COUNSELORS. All attorneys and counselors admitted to practice in the Supreme Court of the United States, or in any District Court of the United States, 1 "or district court," omitted in 1st and 7th circuits. 2 "or in the supreme court of a state in this circuit may become," added in 7th circuit. 3 Balance of sentence from note number omitted in 7th circuit. RULES OP THE UNITED STATES CIRCUIT COURTS OF APPEALS. 853 : shall become attorneys and counselors in this court on taking an oath or affirmation in the form prescribed by Rule 2 of the Supreme Court of the United States, subscribing the roll, and paying to the Clerk a fee of $5. The monies received by the clerk under this rule shall be ac- counted for to the court, and be expended under its direction for the purchase of law books for the court library. 6th 7. ATTORNEYS AND COUNSELORS. All attorneys and counselors admitted to practice in the Supreme Court of the United States, or any circuit court of the United States, upon filing certificate of such admission with the clerk of this court, and upon taking an oath or affirmation in the following form, 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." [a copy of which shall be filed with the clerk], shall become attorneys and counselors of this court; provided, however, that any attorney or counselor eligible to admission as an attorney and counselor of this court may be admitted to practice, on motion in open court, upon taking the oath or affirmation as prescribed, and subscribing the roll. On each admission the clerk will collect ten dollars ($10) to be applied to the purchase of law books for the use of the court and bar. 6th 7. ATTORNEYS AND COUNSELORS. An attorney and counselor admitted to practice and in pood standing in the Supreme Court or in a district court of the United States, or in the court of last resort in the state of his residence, may become attorney and counselor in this court on taking an oath or affirmation as prescribed by role 2 of the Supreme Court of the United States, and upon subscrib- ing the roll. On each admission the clerk will collect $10 to be applied to the purchase, repair and rebinding of law books for the use of the court and bar. Every person tnking the oath and paying such sum shall be entitled to a certificate of his admission, signed by the clerk. 8th 7. ATTORNEYS AND COUNSELORS. 1. All attorneys and counselors admitted to practice in the Supreme Court of the United States, or in any circuit couFt or district court of 854 APPENDIX. the United States, or in the supreme court of any state in this circuit, may, upon motion of some member of the bar of this court, be admitted as attorneys and counselors in this court on taking an oath or affirmation in the form prescribed by rule 2 of the Supreme Court of the United States and on subscribing the roll; but no fee shall be charged therefor. 2. And any attorney and counselor admitted to practice in the Supreme Court of the United States or in the supreme court of any state or in the district or circuit courts of the United States for this circuit, may be admitted by order of this court to practice and may be enrolled as an attorney and counselor of this court, thirty days after he furnishes to the clerk of this court a certificate of a clerk or judge of any one of the courts named that the applicant is an attorney of any one of said courts; and upon subscribing and forwarding to the clerk the following oath: "I do solemnly swear (or affirm) that I will demean myself as an attorney and counselor of the circuit court of appeals for the eighth cir- cuit, uprightly and according to law; and that I will support the Con- stitution of the United States. So help me God." 9th 7. ATTORNEYS AND COUNSELORS. All attorneys admitted to practice in the Supreme Court of the United States, or in any District Court of the Ninth Circuit, shall be deemed attorneys of the Circuit Court of Appeals for the Ninth Circuit; but such attorneys, on or before their first appearance in open court, in said court, shall take an oath or affirmation, in the form prescribed by Rule 2 of the Supreme Court of the United States and subscribe the Roll of Attorneys. All other persons who have been admitted to practice in the highest court of any State or Territory, upon presenting satisfactory evidence of good moral character and fair professional standing, may be admitted to practice in said court, upon taking the oath so prescribed, and subscribing the Roll of Attorneys. Appearance cannot be entered unless counsel is a member of the bar of this court, or of the supreme court of the United States, or of a district court within the ninth circuit. Briefs signed by counsel who are not mem- bers of the bar of this court or fully qualified under the provisions of this rule will not be considered by the court. KULES OF THE UNITED STATES CIRCUIT COURTS OF APPEALS. 855 RULE 8. 1st 2d 3d 4th 5th 8th 9th 8. PRACTICE. The practice shall be the same as in the Supreme Court of the United States, as far as the same shall be applicable. 6th 1 same as above. 2 same as rule 9 in other circuits. Ttk 8. PRACTICE. The practice, so far as may be, shall be the same as in the Supreme Court of the United States. RULE 9. 9. PROCESS. 1st 2d 3d 4th 5th 7th 8th 9th All process of this court shall be in the name of the President of the United States, and shall be in like form and tested in the same manner as process of the Supreme Court. In the sixth circuit this is contained in rule 8, and the following is rule 9 in that circuit. 6th 9. SERVICE OF PAPERS. 1. Copies of all papers or proceedings filed by any party in any canse shall, at or before the time of filing, be served upon counsel representing each adverse interest, and proof or acknowledgment of such service shall be indorsed upon each paper filed. The clerk may insist upon such proof as a prerequisite to filing, or may file and require the prompt fur- nishing of such proof, as he may in each case think proper. 2. Service may be personal or by mail. If personal, it shall consist of delivery at his office to counsel or to a clerk therein. If by mail, it shall consist in depositing the same in the postoflfiee with postage paid, addressed to the counsel at his postoffice address, which address shall include his street and number, unless the same are unknown. Each proof of service shall show a full compliance with this rule. 856 APPENDIX. RULE 10. 1st 5th 8th 9th 10. BILL OF EXCEPTIONS. The judges of the ["circuit and" omitted in 8th circuit] district courts shall not allow any bill of exceptions which shall contain the charge of the court at large to the jury in trials at common law, upon any general exception to the Avhole of such charge. But the party ex- cepting shall be required to state distinctly the several matters of law in such charge to which he excepts ; and those matters of law, and those only, shall be inserted in the bill of exceptions and allowed by the court. 2d 10. BILL OF EXCEPTIONS. The judges of the district courts shall not allow any bill of exceptions unless the same contain the whole charge of the court to the jury. No general exception to the whole of such charge shall be allowed, but the party excepting shall be required to state distinctly the several matters of law in such charge to which he excepts. 3d 10. BILL OF EXCEPTIONS. 1. The judges of the District Courts shall not allow any general ex- ception to the whole of the charge to the. jury in a civil or a criminal trial at common law, nor shall a series of exceptions be allowed which produces the same result. But the party excepting shall state distinctly and separately the several matters in such charge to which he excepts, and only such matters shall be included in the bill of exceptions and allowed by the court. Exceptions to the charge or to the judge's action upon the requests for instruction shall be taken immediately on the con- clusion of the charge before the jury retire, shall be specified in writing or dictated to the stenographer, and shall be specific and not general. 2. Exceptions to the admission or rejection of evidence shall be spe- cific and not general, and the bill of exceptions to such admission or re- jection shall contain only so much of the evidence admitted or offered and rejected as is necessary for the presentation and decision of the questions saved for review. Unless there be saved a question which re- quires the consideration of all the evidence, a bill of exceptions contain- ing all of it shall not be allowed. RULES OF THE UNITED STATES CIRCUIT COURTS OF APPEALS. 857 4th 10. BILL OF EXCEPTIONS. 1. Same as 1st circuit, omitting "circuit and " in first line. 2. Only so much of the evidence shall be embraced in a bill of excep- tions as may be necessary to present clearly the questions of law in- volved 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. 6th 10. BILL OF EXCEPTIONS. 1. The assignments of error required by rule 11 shall be filed at or before the settling of the bill of exceptions. The evidence in a bill of exceptions shall not be set forth in full, but shall be stated in simple and condensed form, all parts not essential to the decision of some one of the questions presented by the assignments of error being omitted, and the testimony of witnesses being stated only in narrative form, save that, if either party desires it and the judge s6 directs, any part of the testimony shall be reproduced in the exact words of the witness. 2. No general exception to the whole or any charge to a jury on trials at law shall be allowed in any bill of exceptions. Exceptions to charge, in order to be allowed in a bill of exceptions, must be taken before the jury retires and must state distinctly the sevtral mat.ters of law to which exception is taken. In cases where exception is taken to part of a charge, and such exception may be affected by other parts or by the charge as a whole, the entire charge shall be included in the bill of exceptions. 7th 10. BILL OF EXCEPTIONS AND TRANSCRIPT. 1. Same as 1st circuit. 2. A bill of exceptions shall contain of the evidence only such a state- ment as is necessary for the presentation and decision of questions saved for review and unless there be saved a question which requires the con- sideration of all the evidence, a bill of exceptions containing all the evi- dence shall not be allowed. 3. No document shall be copied more than once in a bill of exceptions or in a transcript of the record of the case, but instead there shall be inserted a reference to the one copy set out. A motion for a new trial and orders and entries relating thereto shall not be set out in the tran- 858 APPENDIX. script unless required by written precipe, of which a copy shall also be set out. 4. The cost of unnecessary matter in the bill ef exceptions or tran- script or in the printed record shall not be recovered of the appellee or defendant in error, and in its discretion the court will in case of dispute appoint a referee to determine and report what was necessary therein, and will tax the cost of the reference as shall seem just. RULE 11. 1st 2d 4th 7th 8th 9th ASSIGNMENT OF ERRORS. The plaintiff in error or appellant shall file with the clerk of the court below, with his petition for the writ of error or appeal, an assignment of errors, which shall set out 1 separately and particularly each error asserted and intended to be urged. No writ of error or appeal shall be allowed until such assignment of errors shall have been filed. When the error alleged is to th^ admission or to the rejection of evidence, the assignment of errors 2 shall quote the full substance of the evidence ad- mitted or rejected. When the error alleged is to the charge of the court, the assignment 3 of errors shall set out the part referred to totidem verbis, whether it be in instructions given ox 1 in instructions refused. 4 Such assignment of errors shall form part of the transcript of the rec- ord 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 ac- cording to this rule will be disregarded, but the court, at its option, may notice a plain error not assigned. 1 In the 7th circuit substitute "specify" for the words "set out." 2 Substitute "specification of the error" for "assignment of errors." 3 Substitute "each specification" for "the assignment." 4 Add "and shall state distinctly the grounds of objection to an instruction given." In the 7th circuit a note refers to rule 24. In the 9th circuit, see note to admiralty rule 1. 3d 11. ASSIGNMENT OF ERRORS. The plaintiff in error or appellant shall file with the clerk of the court below, with his petition for the writ of error or appeal, his assignments of error, as required by 997 of the Rev. Stats., which shall set out sepa- rately and particularly each error asserted and intended to be urged. (See rule 14, 6.) RULES OP THE UNITED STATES CIRCUIT COURTS OP APPEALS. 859 When the error alleged is to the admission or the rejection of evi- dence, the assignment shall quote the full substance of the evidence admitted or rejected; when the error alleged is to the charge of the court, the assignment shall set out the part referred to totidem verbis, whether it be in instructions given or in instructions refused; when the error alleged is based on the trial court's refusal to enter a judgment non obstante veredicto for the plaintiff in error on the whole record, the assignment shall state the reasons presented to the trial court for the entry of such judgment, when the error alleged is to a ruling upon the report of a master or referee, the assignment shall state the exception to the report and the action of the court upon it. Such assignments of error shall form part of the transcript of the record, and be printed with it. When error is not so assigned, counsel will not be heard, except at the request of the court; and errors not assigned according to this rule will be disregarded. The court, at its option, however, may notice a plain error not assigned. 5th 11. ASSIGNMENT OF ERRORS. The plaintiff in error or appellant shall file with the clerk of the court below with his petition for the writ of error or appeal, an assignment of errors, which shall set out separately and~particularly each error asserted and intended to be urged. No writ of error or appeal shall be allowed until such assignment of error 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 re- jected. When the error alleged is to the charge of the court, the assign- ment of errors shall set out the part referred to totidem verbis, whether it be in instructions given or in instructions refused. Such assignment of errors shall form part of the transcript of the record and be printed with it. When this is not done, counsel will not be heard, except at the request of the court, and errors not assigned according to this rule will be disregarded, but the court, at its option, may notice a plain error not assigned. 6th 11. ASSIGNMENT OF ERRORS. The appellant shall file with the clerk of the District Court at or before the time of filing his petition for the writ of error or appeal, an assign- ment of errors, which shall set out separately and particularly each error asserted and intended to be urged. No writ of error or appeal shall be 860 APPENDIX. 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 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 totidem verbis, whether it be in instructions given or in instructions refused. When this is not done, counsel will not be heard, except at the request of the court, and errors not assigned according to this rule will be disregarded ; but the court, at its option, may notice a plain error not assigned. RULE 12. 1st 2d 8d 4th 5th 6th 7th 8th 9th OBJECTIONS TO EVIDENCE IN THE RECORD. In all cases of equity or admiralty jurisdiction, heard in this court, no objection shall be allowed to be taken to the admissibility of any depo- sition, deed, grant, exhibit, or translation, found in the record as evi- dence, unless l 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. i In the 6th circuit, for the words following note number, "objection was taken thereto in the court below and entered of record," substitute "the record shows that objection was taken thereto in the court below and brought to the attention of the trjal judge on the submission of the cause." RULE 13 (Two Sections). 1st 2d 3d 4th 5th 7th 8th 9th SUPERSEDEAS AND COST BONDS. 1. Supersedeas bonds in the circuit and 1 district courts 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 otherwise secured, must be for the whole amount of the judgment or decree, including just damages for delay, and costs and interest 2 on the appeal; but, in all suits where the property in controversy necessarily follows the suit, as in real actions and replevin, and in suits on mortgages, or where the prop- erty is in the custody of the marshal under admiralty process, or where the proceeds thereof, or a bond for the value thereof, is in the custody of the court, indemnity in all such cases will be required only in an RULES OP THE UNITED STATES CIRCUIT COURTS OF APPEALS. 861 amount sufficient to secure the sum recovered for the use and detention of the property, and the costs of the suit and just damages for delay and costs and interest 2 on the appeal. 1 The words "circuit and" appear in the 1st and 7th circuit! but are omitted in the 2d, 3d, 4th, 5th, 8th and 9th circuits. 2 In the 7th circuit the words "costs and interest" arc transposed to read "interest and costs." 6th 13. ALLOWANCE OF WRIT OF ERROR OR APPEAL. 1. An appeal from or writ of error to a District Court in the cases provided for in sections 128, .129 and 130 of the Judicial Code approved March 3, 1911, may be allowed in term time or in vacation by the Cir- cuit Justice, wherever acting, or by any Circuit Judge acting within the circuit, or by any District Judge acting within the district where the case was heard and authorized to hold court in that district; and the proper security may be taken and the citation be signed by him and he may also grant a supersedeas and stay of execution or of proceedings pending such writ of error or appeal. 2. Where such writ of error is duly allowed in a criminal case the Dis- trict Court in which the conviction occurred, or this court, or any judge of either court, shall have power after the citation is served, to admit the accused to bail in such amount as may be fixed. (The provisions for "Supersedeas and Cost Bonds" in the 6th circuit are in rule 14 for that circuit.) RULE 13 (Section 2). 3d 7th 9th 2. On all appeals from any interlocutory order or decree granting or continuing an injunction in a 1 district court, the appellant shall, at the time of the allowance of said appeal, file with the clerk of such 1 district court a bond to the opposite pajty in such sum as such court shall direct, to answer all costs if he shall fail to sustain his appeal. 1st 2. On an appeal from an interlocutory order or decree, the appellant shall, at the time of the allowance thereof, file a bond to the ad\< party in such sum as the judge who allowed the appeal shall direct, to answer all costs if he shall fail to sustain his appeal l Add in 7th Circuit, "circuit or." 862 APPENDIX, i 2d L On all appeals from any interlocutory order or decree, taken under the provisions of section 129 of the Act to codify, revise and amend the laws relating to the judiciary, the appellant shall, at the time of the allowance of said appeal, fi]p with the clerk of the district court a bond to the opposite party in such sum as such court shall direct, to answer all costs if he shall fail to sustain his appeal. 4th 2. On all appeals under section 129 of the Judicial Code, the appellant shall at the time of the allowance of said appeal, if required by the judge of the court below, file with the clerk of such court a bond to the oppo- site party in such sum as such judge shall direct, for all costs and dam- ages, or simply for all costs, as the said judge shall determine, if he shall fail to sustain his appeal. 5th 2. On all appeals from any interlocutory order or decree granting or continuing an injunction in a circuit or district court, the appellant shall, at the time of the allowance of said appealj file with the clerk of such circuit or district court a bond to the opposite party in such sums as such court shall direct, to answer all costs if he shall fail to sustain the appeal. 6th See both sections of rule in 6th circuit quoted under section 1, rule 13 above. 8th 2. On all appeals from any interlocutory order or decree of a district court, or a judge thereof, granting, continuing, refusing, dissolving or refusing to dissolve an injunction or appointing a receiver, the appellant shall, at the time of the allowance of said appeal, file with the clerk of such district court a bond to the opposite party in such sum as such court shall direct, to answer all costs if he shall fail to sustain his appeal. (The Judicial Code, section 128, Act of March 3, 1911.) RULE 14. WRITS OF ERROR, APPEALS, RETURN, AND RECORD. 1. The clerk of the court to which any writ of error may be directed shall make a return of the same by transmitting a true copy of the rcc- RULES OP THE UNITED STATES CIRCUIT COURTS OF APPEALS. 8fi3 ord, bill of exceptions, assignment of errors, and all proceedings in th case, under his hand and the seal of the court. 2. In all cases brought to this court by writ of error or appeal to re- view any judgment or decree, the clerk of the court by which such judg- rn^nt 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 pro- ceedings 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 pre- siding judge in any circuit or district court, that original papers of any kind should be inspected in this court upon writ of error or appeal, such presiding judge may make such rule or order for the safekeeping, trans- porting and return of such original papers as to him may seem proper; and this court will receive and consider such original papers in connec- tion with the transcript of the proceedings. 5. All appeals, writs of error, and citations, must be made returnable 1 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. 6. The record in cases of admiralty and maritime jurisdiction shall be made up as provided in general admiralty rule No. 52 of the Supreme Court. The testimony in such a record shall embrace the viva voce proof in the district court, if the same, or the substance thereof, has been re- duced to writing with the approval of its judge. The reasonable cost of so reducing the same to writing may be taxed as a part of the costs of the record, except so far as allowed as costs in the district court. 7. Further proof in instance causes in admiralty shall include only that which could not with diligence have been had at the trial below, or which was there rejected, or was omitted through misapprehension, pro- vided the evidence be accompanied witfi a certificate of counsel showing reasonable excuse for the misapprehension. Except by order of the court first obtained, merely cumulative proofs shall not be so taken ; but for this purpose the evidence of witnesses who had different duties, interests, or opportunities of observation, will not ordinarily be held cumulative in cases of collision or other maritime tort. 8. Such further proof may be taken after the appeal is allowed, in the manner provided by law for depositions df bene esse, or by any examiner appointed by any circuit or district judge, or selected by the parties, or upon interrogatories and commissions as provided in rule 13 of the circuit courts of this circuit, mutatis mutandis. It must be taken l Add in 9th circuit, "at San Francisco, California." 864 APPENDIX. and filed forthwith after it is obtainable, but it cannot, except by order of the court, be taken or filed within thirty days before any session at which the cause may be heard, nor thereafterwards until the cause has been postponed to the next term or session. 9. Objections to further proof shall be filed with the magistrate and returned with the evidence. Within seven days after the evidence is taken, the party so objecting may file in print a motion to suppress the same, with a copy of the objections and a brief. The other party may within seven days thereafter file in print a counter-statement and brief. The objections and counter-statement, so far as they contain matters of fact dehors the record, shall be verified by affidavit. The court will consider the objections in advance of the trial, or in connection there- with, as it may in each case determine, and without oral argument, and will order suppressed evidence not rightfully taken. The party taking the evidence so suppressed shall pay the costs arising therefrom, includ- ing the printing thereof. 10. Nothing herein shall exclude applications for leave to take fur- ther proof, or objections thereto, in advance of the taking thereof, or objections touching the formalities of taking it; but the latter must be brought to the attention of the court forthwith after the evidence is filed. 2d 14. WRIT OF ERROR, APPEALS, RETURN, AND RECORD. Sections 1 to 5 the same as those of 1st circuit, except for omission of the words "circuit or" before the words "district court" in section 4. 6. The record in cases of admiralty and maritime jurisdiction shall be made up as provided in general admiralty rule No. 52 of the Supreme Court. 3d 14. WRIT OF ERROR, APPEALS, RETURNS, AND RECORD. 1. Any appeal to this court, or writ of error from this court, allow- able by law, may be allowed in term time or vacation, by the Circuit Justice, or by any of the Circuit Judges within this Circuit, or by any district Judge within the district where the case to be reviewed was heard or tried, who may also take the proper security, sign the citation, and, if he deem it proper so to do, grant a supersedeas and stay of exe- cution or proceedings pending such writ of error or appeal. Whenever an appeal or a writ of error to this court shall be allowed by a District Judge, or shall be issued by the clerk of a District Court, the clerk of RULES OK TUB UNITED STATES CIRCUIT COURTS OF APl'UALS. 805 " the District Court shall give immediate notice thereof to the clerk of this court. 2. The clerk of the court to which any writ of error may be directed, or from which any appeal may be taken, npou being paid or tendered his fees therefor, shall make a return of the same by transmitting a true copy of the record, bill of exceptions, assignment of errors, and all proceedings in the case, under his hand and the seal of the court. 3, 4, 5, same as sections 2, 3, 4, for the 1st circuit, 'except that it omits the words 'circuit and" before the words "district court." 6. Same as section 5 for the 1st circuit, with the addition of th'e fol- lowing clause: "But the citation must be signed, and the bond for costs must be approved and filed, and the assignments of error submitted and filed, with the petition for the appeal or writ of error, immediately after the appeal or writ of error is allowed: Provided, however, that every appeal taken from an interlocutory decree, under the seventh section <>t 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 3, 1891, and amendments to said section shall be made returnable in ten days from the allowance of the appeal and the signing of the citation." 7. The records in cases of admiralty and maritime jurisdiction shall be made up in the same manner, as nearly as practicable, as are the rec- ords in equity cases. 4th 14. WRITS OF ERROR, APPEALS, RETURN", AND RECORD. 1. The clerk of the court to which any writ of error may be dim-ted shall (except as otherwise provided by rule 23) make return of the snmc, by certifying under his hand and the seal of said court, in accordance with the act of Congress of February 13, 1911 (36 Stats. 901), and trans- mitting to the clerk of this court one of the printed transcripts of the record provided for by said act. In all cases of appeal and also in all cases of petition for revision in bankruptcy said clerk shall lik( certify, seal and transmit a copy of the printed transcript of the record to the clerk of this court. 2. In every printed transcript of the record the order of the parts thereof shall substantially follow the order in which the same \\ entered or made, and shall contain a copy of such opinion or opinio; the trial judge as may have been filed. It shall be suitably indexed, and where any deposition or report of evidence requires more than one printed page the name of the deponent or witness shall be printed at the Mnnl 6 866 APPENDIX. top of each page. And the foregoing shall, so far as may be applicable, apply to the printed addenda to records hereinafter provided for. 3. Except in cases where counsel shall agree by written and signed stipulation, which shall be a part of the record, as to what portions of the record and proofs of the case in the court below, shall be printed in the transcript of the record for use in this court, the trial judge shall have the power, upon application after reasonable notice to the opposing party or his counsel, to determine what shall be included in such tran- script, and his determination shall be signed by him, and made part of the record; he shall include in such signed paper, such portions of the record and of the proofs as he may deem material for the proper dis- position of the questions to be decided by this court, as also such parts as are specially required by these rules. But if any party desires printed any document or part of the record or proofs directed by the trial judge to be omitted, such party may print the same under separate cover and cause it to be certified and transmitted to this court as an addendum to the record. Such printing and certification shall be pri- marily at the cost of the party who requires it. The cover sheet of such addendum shall contain the title of the cause and shall plainly show fnat it is an addendum to the transcript and shall show at whose instance it was printed. 4. Whenever it shall be necessary or proper, in the opinion of this court or of the court below, that original papers of any kind should be inspected here, this court or the court below may make such rule or order for the safekeeping, transporting and return of such original papers as to it may seem proper. 5. All appeals, writs of error and citations must be made returnable not exceeding forty 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. 6. The transcript of the record in cases of admiralty and maritime jurisdiction shall include the matters which, by admiralty rule 52 of the Supreme Court are required to be included therein. 7. No transcript of the record and proofs shall (unless it be specifically otherwise ordered by the trial judge) contain a copy of the petition for writ of error or petition for appeal, the order granting writ of error or appeal, the writ of error, the appeal bond, the citation, the return of service or waiver of service of citation, in lieu thereof the originals of said documents shall be certified to this court within forty days of the date of the citation (all to be returned to the court below with the man- date of this court except the citation and writ of error) and in said RULES OP THE UNITED STATES CIRCUIT COURTS OF APPEALS. 867 * - transcript there shall be inserted a memorandum stating the date of the petition for writ of error or for appeal, the date of the order granting writ of error or allowing appeal, the date of the writ of error and date when copy thereof or copy of order allowing appeal is lodged in the office of the clerk of the court below for adverse parties, the date, pen- alty, the names of the obligors, the condition (whether for payment of costs and damages or for costs alone) of the appeal bond, the date of the citation, and the date of the service thereof or of the waiver of service thereof. No general replication in equity shall be copied into the transcript of the record, but in lieu thereof there shall be inserted a memorandum showing the date of filing of such replication and by whom filed. When a case has by writ of error or appeal been brought to this court the second time, there shall only be copied in the record the proceedings subsequent to the former writ of error or appeal. It shall be the duty of the trial judge in determining what shall constitute said transcript of the record, to direct the omission of all matter which in his judg- ment is unnecessary to the presentation of the issues to be passed upon by this court and especially to prevent unnecessary duplications in such transcript. And the clerk below shall not certify any transcript of the record and proofs unless it contains cither the stipulation of counsel or the determination of the trial judge mentioned in 3 of this rule. 8. Whenever the printed transcript of the record or any addendum thereto as certified by the clerk of the court below shall contain any corrections or insertions, it shall be the duty of the party filing the printed transcript or addendum in this court to correct all the copies of the same so as to correspond with the certified transcript or addendum. 5th 14. WRITS OF ERROR, APPEALS, RETURN AND RECORD. Sections 1 to 4 same as corresponding sections for the 1st circuit. 5. All appeals, writs of error and citations must be made returnable and the transcript filed in the clerk's office at New Orleans not exceed- ing 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. Provided, however, that appeals taken from interlocutory decrees under the seventh section of the act entitled "An act to establish Cir- cuit Courts of Appeal and define and regulate in certain cases the juris- diction of the courts of the United States and for other purposes," approved March 3, 1891, and amendments thereto, shall be made return- 868 APPENDIX. able not exceeding ten days from the day of taking the same. (As amended Jan. 12, 1905.) 6. Same as section 6 for the 2d circuit. 6th 14. SUPERSEDEAS AND COST BONDS. 1. Upon the allowance of any appeal to, or writ of error from, this court (except when allowed to a party proceeding in forma pauperis, or in other case where, by statute, no bond is required), the court or judge allowing shall take and approve a bond with good and sufficient security that the appellant shall prosecute his writ or appeal to effect, and answer all costs if he fail to make his plea good. 2. If the appeal or writ of error is to operate as a eupersedeas, the court or judge shall, in the allowance, order that it have such effect upon the filing of the required bond, and in such case, the bond shall be con- ditioned to answer all damages and costs. Such indemnity, where the judgment or decree is for the recovery of money not otherwise secured, must be for the whole amount of the judgment or decree, including just damages for delay, and costs and interest on the appeal ; but in all suits where the property in controversy necessarily follows the suit, as in real actions and replevin, and in suits on mortgages, or where the property is in the custody of the marshal under admiralty process, or where the proceeds thereof, or a bond for the value thereof, are in the custody of the court, indemnity will be required only in an amount sufficient to secure the sum recovered for the use and detention of the property, and the costs of the suit and just damages for delay, and costs and interest on the appeal. 7th 14. WRITS OF ERROR, APPEALS, RETURN AND RECORD. 1. The clerk of the court, to which any writ of error may be directed, shall make a return of the same by transmitting a true copy of the rec- ord, bill of exceptions, assignment of errors, and all proceedings in the case necessary to the hearing in this court, under his hand and the seal of the court. The clerk may require of the appellant or plaintiff in error a written precipe stating in detail what the transcript shall coji- tain, and when a precipe is filed shall insert a copy thereof in the transcript. 2. Same as section 2 for the 1st circuit. 3. No case will be heard until a complete record shall have been filed, containing in itself, and not by reference, all the papers, exhibits, depo- sitions, and other proceedings necessary to the hearing in this court. BULBS OP THE UNITED STATES CIRCUIT COURTS OF A1-PKA.LS. 869 P 4. Same as section 4 for the 1st circuit. 5. All appeals, writs of error and citations must be made returnable not exceeding thirty days from the date on which the appeal is allowed, or the writ of error issued, whether the return fall in vacation or in term time, and be served before the return day. "If a party be nonresi- dent the citation and any other writ or notice necessary in the prosecu- tion of the appeal or writ of error may be served upon such party's counsel or attorney of record, who for such purpose may not be dis- charged unless another resident be designated of record in the case upon whom service may be made." 6. Same as in 1st circuit. 8th 14. WRITS OF ERROR, APPEALS, RETURN, AND RECORD. 1 and 2 same as for the 1st circuit, adding in 2 the following: "And in cases at law a complete copy of the charge of the court to the jury." 3. No case will be heard until twenty-five copies of the printed tran- script of the record, containing in themselves, and not by reference, all the papers, exhibits, depositions, sketches, drawings, photographs, maps, blue-prints and other proceedings, which are necessary to the hearing in this court, printed title pages in the form prescribed in 5 of rule 26, chronological printed indexes of each and every item of their contents specifying the pages where evidence, testimony and exhibits including those in the body of any pleading, order or bill of exceptions may be found and briefly naming or describing each exhibit in addition to its number together with a statement of the numbers, names and dates of issue of any patents, shall have been filed in this court. 4, 5 and 6, same as corresponding sections in 1st circuit except that in section 4 it omits the words "circuit and" before the words "district court." 9th 14. WRITS OF ERROR, APPEALS, RETURN AND RECORD. 1. Same as section 1 for the 1st circuit, with the insertion of the words "opinion or opinions" after the word "record." 2. In all cases brought to this court by writ of error or appeal to re- view any judgment or decree, the clerk of the court by which such judg- ment or decree was rendered shall annex to and transmit with the record the original writ of error and citation, or citation issued in the cause, and a certificate under seal stating in detail the cost of the record and by whom paid. 870 APPENDIX. 3, 4 and 5 same as corresponding sections of the 1st circuit except that in section 4, it omits the words "circuit and" before the words "district court," and in section 5 the words "at San Francisco, California" are inserted after the word "returnable." (See also rules 16, 17, 23, 34, 35 and 36 and Rules in Admiralty.) RULE 15. 1st 2d 5th 7th 9th 15. TRANSLATIONS. Whenever any record transmitted to this court upon a writ of error or appeal shall contain any document, paper, testimony or other proceeding in a foreign language, and the record does not also contain a transla- tion of such document, paper, testimony or other proceeding made under the authority of the inferior court, or admitted to be correct, the record shall not be printed; but the case shall be reported to this court by the clerk and the court will thereupon remand it back to the inferior court, in order that a translation may be there supplied and inserted in the record. The above is rule 16 in the 3d circuit. 3d 15. BAIL IN ERROR. 1. Where a writ of error has been allowed in a criminal case, the jus- tice or judge who allowed the writ, or any judge of the court which entered the judgment to be reviewed, shall have power to admit the plaintiff in error to bail for his appearance in such court on the deter- mination of the proceedings on the writ of error to abide by and obey any order that may be made therein. The bond or recognizance for such appearance shall be substantially in the following form: United States of America, ) District of , J S3. We [here insert name of defendant], residing at and [here insert the name of surety], residing at in the state of , acknowledge ourselves to be jointly and severally indebted to the United States of America in the sum of dollars, lawful money of the United States of America, to be levied on our goods and chattels, lands and tenements, upon this condition: That if the said , the defendant, upon whose application a writ of error has been allowed by the United States circuit court of appeals for the third RULES OP THE UNITED STATES CIRCUIT COURTS OP APPEALS. 871 circuit and is now pending, shall be and appear at the district court of the United States for the district of upon the determination of the proceedings on said writ of error, and the receipt and filing of a mandate or other process or certificate showing the disposition thereof by the said court of appeals, or, within five days thereafter, to answer and obey whatever final order or judgment, except as to costs, shall be made in the premises, and not depart said court without leave thereof, then thia recognizance to be void; otherwise, to remain in full force and virtue. (L. 8.) (L. 8.) (L. 8.) Taken, acknowledged and subscribed, this day of A. D. 191 , in open court. , Clerk of District Court. 4th 15. TRANSLATIONS. Whenever any transcript of the record transmitted to this court shall contain any documents, papers, testimony or proceedings in a foreign language, and the transcript does not also contain a translation of the said documents, papers, testimony or proceedings made under the authority of the lower court, or admitted to be correct, the tran- script of the record may be returned by this court to the lower court in order that a translation may there be supplied, printed and certified to this court. 6th In the sixth circuit no provision is made for "Translations," and rule 15 is as follows: 15. RECORDS AND RETURNS ON WRITS OF ERROR AND APPEALS. 1. All appeals, writs of error and citations must be made returnable not exceeding thirty days from the day of allowing the appeal in open court or signing the citation, whether the return fall in vacation or in term time, and must be served before the return day. 2. The clerk of the district court shall make return to any writ of error to, or appear-from, that court, by transmitting, certified under his hand and the seal of the court, a transcript of the record in the district court, prepared as directed by other provisions of this rule. He shall make such return on or before the return day, unless the time therefor be extended as otherwise provided in these rules. 872 APPENDIX. 3. In all appeals, not in admiralty (and save in cases under general equity rule 77), the transcript the contents of which are to be deter- mined pursuant to clauses (a) and (c) of general equity rule 75 (Note 1) shall always include: (1) the statement of evidence; (2) the clerk's certificate showing what portions are included by request of each party ; (3) any opinion or memorandum filed by the judge pertaining to the matter involved in the appeal ; (4) the pleadings affecting the decree or order appealed from, and such order or decree; (5) all proceedings relating to the appeal and the security given thereon, together with a copy of the citation, if one there was, and the evidence of service; (6) in cases removed from the state court, the full transcript on re- moval; and (7) in bankruptcy, shall also contain the petition for adjudi- cation and the order thereon. It shall omit: (1) all formal proceed- ings to bring into court parties wht> afterwards appear generally, unless such proceedings are involved in the desired review; and (2) all motions or petitions filed and all affidavits in connection therewith, and all orders made and proceedings had thereon, unless such matters are in- volved in the desired review. It shall carry, at the beginning of each paper, the name thereof, and the date when it was filed, omitting the title of the court and the cause and all formal indorsements (Note 2). Orders and decrees shall carry a short, descriptive title with the date and entry and the name of the judge, but without other caption (Note 3). Exhibits or documents shall not be duplicated, but a cross-reference shall be made. 4. Upon writ of error from this court, the contents of the transcript shall be determined and the transcript made up in the same manner provided by clauses (a) and (c) of general equity rule 75 and clause 3 of this rule, both applied as near as may be to an action at law. Such transcript shall contain also a copy of the bill of exceptions, the assign- ments of error and the writ of error. 5. The original citation with proof of service and the original writ of error shall be filed with the clerk of the court below and be by him transmitted with the transcript to the clerk of this court. 6. Whenever it shall be necessary or proper, in the opinion of the District Judge, that original papers or exhibits of any kind shall be inspected in this court upon review, he may make such rule or order as to him may seem proper for the safekeeping, transporting and return of such original papers and exhibits; and this court will receive and consider such originals in connection with the transcript. 1 Equity Rule 75, see Equity Rules, this Appendix. 2 e. g., "Answer. Filed February 1, 1913." 3 e. g., "Final Decree. Entered February 1, 1913, by Judge ." RULES OP THE UNITED STATES CIRCUIT COURTS OP APPEALS. 873 7. The record, in cases of admiralty and maritime jurisdiction shall be made up as provided in General Admiralty Rule 52. 8. On motion duly made, or on its own motion, this court will order portions to be stricken from the transcript, or additions to be made thereto by supplementary return, as may appear proper. 8th 15. TRANSLATIONS. Whenever any transcript transmitted to this court upon a writ of error or appeal shall contain any document, paper, testimony or other proceeding in a foreign language, and the transcript does not also con- tain a translation of such document, paper, testimony or other proceed- ing made under the authority of the inferior court, or admitted to be correct, the transcript shall not be printed; but the case shall be re- ported to this court by the clerk, and the court will thereupon remand it back to the inferior court;- and if the record is to be printed in the court below it shall be reported to that court by its clerk, in order that a translation may be there supplied and inserted in the record. RULE 16. 2cl 5th 1 7th 8th 9th 16. DOCKETING CASES. 1. It shall be the duty of the plaintiff in error or appellant to docket the case and file the record ["and docket the case," 9th circuit] thereof with the clerk of this court ["at San Francisco," 9th circuit] by or before the return day, whether in vacation or in term time. Rut for good cause shown, the justice or 2 judge 3 who signed the citation, or any judge of this court may enlarge the time 4 by or before its expiration, the order of enlargement to be filed with the clerk of this court. 6 If the plaintiff in error or appellant shall fail to comply with this rule, the defendant in error or appellee may have the cause dock- eted and dismissed upon producing a certificate, whether in term time or vacation, from the clerk of the court wherein the judgment or decree 1 In 5th circuit a fourth section is added just below, a In 2d circuit added "any district." 3 In 2d circuit substitute for the words "who signed the citation," th.-so words, "within the district." 4 "Upon four days' notice served before its application on the attorney for the opposite party," 2d circuit. 5 From this note number on the balance of this section 1 is sectiou 2 in the 4th circuit. 874 APPENDIX. was rendered, stating the case and certifying that such writ of error or appeal has been duly sued out or allowed. And in no case shall the plaintiff in error or appellant be 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 this court. 2. But the defendant in error or appellee may, at his option, docket the case and file a copy of the record ["and docket the case," 9th circuit] 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 there- after, the case shall stand for argument at the term. 8 3. [Except 9th circuit following.] 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. 7 3. [9th circuit.] 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, if said counsel be qualified under the provisions of rule 7, be entered. 4. [In 5th circuit only.] In all cases the plaintiff in error or appel- lant, on docketing a case and filing the record, shall enter into an under- taking to the clerk, with surety to his satisfaction for the payment of his fees, or otherwise satisfy him in that behalf. 1st 16. DOCKETING AND DISMISSING CASES. 1. The plaintiff in error or appellant shall docket the case, and file the record thereof, on 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 circuit or district judge, may enlarge the time, the order of enlargement to be filed in this court. 2. If the plaintiff in error or appellant shall fail to comply with this rule, the defendant in error or appellee may have the case docketed and dismissed whether in term time or vacation upon producing a certifi- cate from the clerk of the court wherein the judgment or decree was rendered, stating the case, the return day of citation, and that the writ of error or appeal was duly sued out or allowed. And the plaintiff in error or appellant shall not be entitled to docket the case, or file 6 For "at the term" substitute "in due course" in 7th circuit. 7 The following note was added to the rule for the 8th circuit': Note: A deposit of thirty-five dollars to secure clerk's costs is required before the record in a cause is filed and docketed^ BULBS OP THE UNITED STATES CIRCUIT COURTS OP APPEALS. 875 the record, after the same shall have been docketed or dismissed under this rule, unless by. the order of the court after notice to the adverse party. But the defendant in error or appellee may, at his option, docket the case and -file the record ; and, if the case is docketed and the record filed by the plaintiff in error or appellant within the time prescribed by this rule, or by the defendant in error or appellee at any time there- after, the case shall stand for argument. 3. On the filing of the record, the appearance of the counsel for the party docketing the case shall be entered. 3d Rule 16 of 1st circuit with same additions is rule 17 of 3d circuit quoted below under rule 17. Rule 16 of 3d circuit is the same as rule 15 of the other circuits above dealing with "Translations." 4th 16. DOCKETING CASES. 1. Except as otherwise provided by rule 23, it shall be the duty of the appellant, plaintiff in error, or petitioner for revision in bankruptcy to cause to be printed and suitably indexed the transcript of the record (as well as any addendum to the record required by such party) and to deliver the same to the clerk or deputy clerk of the court below for certification, sealing and transmission to this court within forty days from the date of the citation or the filing of the petition for revision ; and also on or before the expiration of the said forty days to file with the clerk of this court at least twenty-four printed copies of the said transcript and addendum above-mentioned, if any. He shall also at the same time furnish to the adverse party at least three copies of the printed transcript of the record, including any addendum thereto printed at his instance. It shall also be the duty of appellant, plaintiff in error, or petitioner for revision to docket the cause in this court on or before the return day, whether in term time or vacation. In case any appellee or defendant in error shall have required an addendum to the tran- script of record, it shall be the duty of such party to file in the office of the clerk of this court, on or before the said return day, at least twenty-four printed copies of such addendum as well as one additional copy thereof, which shall have been duly certified by the clerk of the court below; and such party shall at the same time furnish to the adverse party at least three copies of said printed addendum. 876 APPENDIX. The time within which any of the acts in this section above mentioned are required to be done may for good cause shown be enlarged by the justice or judge who signed the citation or any judge of this court, provided the order of enlargement be made prior to the expiration of such time; such order to be filed with the clerk of this court. 2. Is that part of 1 (first above quoted for 2d, 5th, 7th, 8th, 9th circuits) following the note number 5. 3. Is 2 first above quoted for 2d, 5th, 7th, 8th, 9th circuits. 4. Upon the filing of the transcript of the record in any case brought up by writ of error or appeal, the appearance of counsel for the party docketing the cause shall be entered by the clerk of this court as of course. 5. Defendants in error, appellees, or respondents, are required, at the time of entering their appearance by attorney, to make a deposit of $25 for account of costs to be incurred by them in this court. This is ap- plicable to all cases except when the United States is defendant in error or appellee. 6th [The rule as to "docketing" in this circuit is rule 18.] 1. DEATH OF A PAETY. 1. Whenever a party to a case pending in this court shall die, the personal representative may suggest the death upon the record, filing evidence of his representative capacity, and designating counsel, and thereupon the case shall stand as revived in behalf of or against the interest of the deceased party, and the cause shall proceed as in other cases. 2. Where a party to a case pending in this court shall die and his personal representative does not, within sixty days after such death, appear under clause 1, any other party in interest may suggest such death upon the record, filing evidence of the due appointment of a per- sonal representative, and thereupon, and without notice, the court or any judge thereof will make an order that such personal representative appear and designate counsel. In default of such appearance, within thirty days after service on such personal representative of a certified copy of such order, the adverse party, on proof of such service and with- out further notice, may have, from this court, an order either to revive the cause and direct that it proceed as to the interest held by the de- ceased party, or to dismiss the case as to such interest, as may be by the court thought proper. RULES OF THE UNITED STATES CIRCUIT COURTS OP APPEALS. 877 3. If the death of a party is brought to the attention of this court, and proceedings are not taken under clause 1 or clause 2 sufficiently to dispose of the resulting situation, the court will, on its own motion, direct such steps to be taken as are proper to dispose of the case or expedite the hearing. 4. Whenever any party to a suit pending in a district court shall die, and because of such death and because of the absence of any personal representative of the deceased within the jurisdiction of the district court and any means of compelling the appointment of such a repre- sentative within such jurisdiction the adverse party is not able to have the case revived in the district court and to proceed with the desired review in this court, the adverse party desiring a review may proceed as if such death had not occurred, and may have supersedeas as in other cases, serving all required papers and notices upon such persons as, in the judgment of the district court, will be most likely to give notice to all persons interested in the estate, and as may be directed by the district court. When the record in such a case has been filed in this court, the same proceedings shall be had as specified in clauses 2 and 3, or the court will take such proceedings as may seem to it advisable to bring in the proper parties. RULE 17. 2d 6th DOCKET. The clerk shall enter upon a docket all cases brought to and pending in the court in their proper chronological order, and such docket shall be called at every term, or adjourned term; and if a case is called for hearing at two terms successively, and upon the call at the second term neither party is prepared to argue it, it will be dismissed nt Hie cost of the plaintiff in error or appellant, unless sufficient cause is shown for further postponement. 1st 17. DOCKET AND CALENDARS. 1. The clerk shall enter and number on the docket all cases consecu- tively, in their proper chronological order. 2. He shall print at least twenty days before the first Tuesday of October and of January, and the second Tuesday of April, a calendar of all the pending cases, arranged by districts in the following order: Maine, New Hampshire, Rhode Island, Massachusetts. 878 APPENDIX. 3d In the third circuit the rule as to "Docket and Argument Lists" is rule 18, post. Rule 17 is similar to rule 16 in 1st circuit, supra. Rule 17, 3d circuit, is as follows: 17. FILING RECORDS, DOCKETING CASES AND ENTERING APPEARANCES. 1. The plaintiff in error or appellant shall file the record of the case and cause it to be docketed by the clerk of this court on or before the return day of the citation, whether in vacation or in term time; but for good cause shown the justice or judge who signed the citation, or any Circuit or District Judge, may extend the return day thereof, the order for extension to be filed with the clerk of this court. 2. If the plaintiff in error or appellant shall fail to comply with the first section of this rule the defendant in error or appellee may cause the case to be docketed without the filing of any record and have it dismissed, whether in term time or vacation, upon due proof of notice to the plaintiff in error or appellant of a motion for such dismissal, and upon producing a certificate from the clerk of the court wherein the judgment or decree was rendered, stating the case, the return day of the citation, and that the writ of error or appeal was duly sued out or allowed; and in no case shall the plaintiff in error or appellant be entitled to file the record or to have it docketed after the defendant in error or appellee shall have had the case dismissed under this section of this rule unless upon special order of the court. 3. Instead of having the case docketed for the purpose of having it dismissed under the provisions of the second section of this rule, the defendant in error or appellee, on payment of the usual fees, may file the record and cause the case to be docketed by the clerk, and if the record be filed and the case docketed, either by the plaintiff in error or appellant, within the time prescribed by the first section of this rule, or by the defendant in error or appellee under the provisions of this section, the case shall stand for argument. 4. On the filing of the record the appearance of the counsel for the party docketing the case shall be entered, and on or before the return day of the citation the counsel for the appellee or defendant in error shall also enter appearance for the appellee or defendant in error. The provisions governing the docket in the third circuit are con- tained in rule 18 below. fcULES OF THE UNITED STATES CIRCUIT COURTS OF APPBALS. 4th 17. DOCKET. 1. The clerk shall enter upon a docket all cases brought to and pend- ing in the court in their proper chronological order. 2. All cases in which copies of the printed record are delivered to the adverse party or his counsel at least twenty days before any regular term or adjourned term shall stand for argument at the term holden next after. the docketing of the case. 3. The clerk before each regular term shall print a docket containing all pending cases and such docket shall be called at every term or adjourned term. If a case is called for hearing at two terms suc- cessively, and upon the call at the second term neither party is prepared to argue it, it will be dismissed at the cost of the plaintiff in error, appellant or petitioner for revision, unless sufficient cause is shown for further postponement. 4. By consent of counsel in writing filed with the clerk of this court, any cases not included in section 2 of this rule may be by the clerk placed at the foot of the argument docket and may be argued at any term or adjourned term, provided the briefs on both sides are filed before the case is called. 6th In the sixth circuit the rule as to "The Docket Docketing Dismiss- ing'" is rule 18. And rule 17 is as follows in the sixth circuit: 17. PROCEEDINGS IN FORMA PAUPERIS. 1. Applications for leave to proceed in this court pursuant to the act of July 20th, 1892, as amended July 25th, 1910, must be by special motion with notice under rule 24. If made before return is filed in this court, notice shall be served upon the adverse counsel in the district court. The showing by affidavit must be sufficient to satisfy this court that the appellant is entitled to the benefit of the act. 2. If appellant was plaintiff or complainant below, he must, with his application to this court, make it appear whether or not any other person attorney, counsel, or otherwise is beneficially interested in the recovery sought, and, if so, that every such person is, because of his poverty, unable to pay, or give security for, the costs from which appel- lants seek to be excused. 880 7th 17. DOCKET. The clerk shall prepare calendars of causes for the regular terms of this court, to be held on the first Tuesday of October in each year, and for each adjourned session; placing thereon in proper chronological order only cases in which the record having been printed, briefs upon both sides have been filed seven days before the beginning of the term or session. 8th 17. DOCKET. The clerk shall enter upon a docket all cases brought to and pending in the court in their proper chronological order, and such docket shall be called at every term, or adjourned term, except cases from the dis- tricts of Colorado, Utah, Wyoming and New Mexico, which cases shall only be called at the September term unless counsel otherwise stipulate as provided in rule 3 ; and if a case is called for hearing at two terms successively, and upon the call at the second term neither party is pre- pared to argue it, it will be dismissed at the cost of -the plaintiff in error or appellant, unless sufficient cause is shown for further post- ponement. 9th 17. DOCKET. The clerk shall, upon payment to him by the appellant or plaintiff in error of a deposit of twenty-five dollars in each case, file the record and enter upon a docket all cases brought to and pending in the court in their proper chronological order. RULE 18. 1st 2d 4th 5th '; 7th 8th 9th 18. CERTIORARI. No certiorari for diminution of the record will be hereafter ["here- after" omitted in 8th circuit] awarded in any case, unless a motion therefor shall be made in writing, and the facts on which the same is founded shall, if not admitted by the other party, be verified by affi- davit. And all motions ["any motion," 7th circuit] for such certio- rari 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. BULKS OP THE UNITED STATES CIRCUIT COURTS OP APPEALS. 94 [Rule as to "Certiorari" is numbered 20 in 3d circuit.] 18. DOCKET AND ARGUMENT LISTS. 1. Upon the filing of the record in any case by the plaintiff in error or appellant and the payment by him of a deposit fee of $40.00, the clerk shall enter the case, the record of which is so filed, upon the docket of this court; such docket shall have all its cases arranged in their proper chronological order. 2. The clerk shall prepare and cause to be printed previous to the opening of each term of this court, an argument list of all cases the records of which shall have been filed with him not less than fifteen days before the opening of the term, which cases shall be put on the argument list in the chronological order of docketing the same, subject, however, to the following system of grouping: the first group shall be composed of the cases in which all the circuit judges shall be compe- tent to sit ; the second of the cases in which all the circuit judges except the youngest in commission shall be competent to sit; the third, of the cases in which all the circuit judges except the next to the youngest in commission shall be competent to sit, and the fourth, of the cases in which all the circuit judges except the oldest judge in commission shall be competent to sit. 6th [There is no rule as to "Certiorari," in 6th circuit.] 18. THE DOCKET DOCKETING DISMISSING. [In the other circuits this subject matter is treated in rules 16 and 17.] 1. The clerk shall enter upon the docket in their proper chronological order all cases brought to or in this court. 2. The appellant shall docket the case and file the record thereof with the clerk of this court by or before the return day, whether in vacation or in term time, and at the time of filing the record, the appel- lant shall deposit with the clerk the sum of thirty-five dollars as secur- ity for costs, except in cases in which the proper showing is made and an order of this court is entered thereon allowing the cause to proceed in forma pauperis, and except in the cases where, by statute, advance payment of costs is not required. For good cause shown, the justice or judge who signed the citation, or any judge of this court, may enlarge the time for return at or before its expiration, the order of enlargement to be returned with the record and filed with the clerk of Manual 56 882 APPENDIX. this court. If the appellant fail to comply with this rule, the appellee may have the cause docketed and dismissed, upon producing a certifi- cate from the clerk of the court wherein the said judgment or decree was rendered, stating the case and certifying that such writ of error or appeal has been duly sued out or allowed. In no case shall the 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. 3. The 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 appellant within the period of time above limited and prescribed by this rule, or by the appellee at any time thereafter, the case shall stand for argument. 4. The appearance of the counsel docketing the case shall thereupon be entered upon the docket. 5. All subsequent papers filed, orders made and proceedings had, shall be noted upon the docket. 6. Whenever counsel for appellant and appellee shall, in vacation, sign and file with the clerk an agreement in writing directing the case to be dismissed and specifying the terms as costs, on which terms it is to be dismissed, and shall pay to the clerk any fees due, he shall enter the case on his docket as dismissed and give to either party re- questing it a copy of the agreement filed; but no mandate or other process on such dismissal shall be issued without the order of the court. RULE 19. 1st 2d 4th 5th 7th 8th 9th 19. DEATH OF A PARTY. [This subject matter is under rule 21 in the 3d circuit and rule 16 in the 6th circuit.] 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; and, if such repre- sentatives shall not voluntarily become parties, then the other party may suggest the death on the record, and thereupon, on motion, obtain an order that, unless such representatives shall become parties within sixty days, the party moving for such order, if defendant in error ["or RULES OP THE UNITED STATES CIRCUIT COURTS OP APPEALS. 883 appellee," 4th circuit], 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," 4th circuit], he shall be entitled to open the record, and, on hearing, have the judgment or decree reversed, if it be erroneous: Provided, however, That a copy of every such order shall be person- ally served on said representatives at least thirty days before the ex- piration of such sixty days. 2. When the death of a party is suggested, and the representatives of the deceased do not appear within ten days after the expiration of such sixty days, and no measures are ["shall have been," 7th circuit] taken by the opposite party within that time to compel their ap]>ear- ance, the case ["writ of error or appeal," 7th circuit] shall abate. 3. When either party to a suit in a circuit or 1 district court of the United States shall desire to prosecute a writ of error or appeal to this court from any final judgment or decree rendered in the circuit or 1 district court, and, at the time of suing out such writ of error or appeal, the other party to the suit shall be dead and have no proper representative within the jurisdiction of the court which rendered such final judgment or decree, so that the suit cannot be revived in that court, but shall have a proper representative in some state or territory of the United States, or in the District of Columbia, the party desiring such writ of error or appeal may procure the same, and may have pro- ceedings on such judgment or decree superseded or stayed in the same manner as is now allowed by law in other cases, and shall thereupon proceed with such writ of error or appeal as in other cases. And. within thirty days after the filing of the record in this court the plaintiff in error or appellant shall make a suggestion to the court, supported by affidavit, that the said party was dead when the writ of error or appeal was taken or sued out, and had no proper representative within the jurisdiction of the court which rendered such judgment or decree, so that the suit could not be revived in that court, and that said party had a proper representative in some state or territory of the Ui.ited States, or in the District of Columbia, and stating therein the name and character of such representative, and the state or territory or dis- trict in which such representative resides; and, upon such suggestion he may, on motion, obtain an order that, unless such representative shall make himself a party within ninety days, the plaintiff in error or appellant shall be entitled to open the record, and on hearing have the judgment or decree reversed, if the same be erroneous: Provided, however, that a proper citation, reciting the substance of such order, shall be served upon such representative either personally, or by being 1 "Circuit or" omitted in 8th and 9th circuits. 884 APPENDIX. left at his residence, at least thirty days before the expiration of such ninety days : Provided, also, that in every such case, if the representa- tive of the deceased party docs not appear within ten days after the expiration of such ninety days and the measures above provided to compel the appearance of such representative have not been taken within the time as above required, by the opposite party, the case shall abate: And provided, also, that the said representative may at any time before or after said suggestion come in and be made a party to the suit and thereupon the case ["suit," 5th circuit] shall proceed, and be heard and determined as in other cases. [A note in 7th circuit reads, "See 9, Act. Mch. 3, 1875, Sup. Rev. Stats., p. 177."] 3d In the third circuit the above is rule 21, and rule 19 is as follows : 19. ARGUMENTS, CONTINUANCES, AND DISMISSALS. [See rule 25 in other circuits, and rule 23 in 6th circuit.] 1. The cases in the argument list shall be called for argument at each term, or adjourned term, and cases shall be argued on call unless the court shall for good cause otherwise order. 2. If the defendant in error or appellee fails to appear when his case is called for argument, the court may proceed to hear the argument on the part of the plaintiff in error or appellant and to give judgment according to the right of the case. 3. For good cause shown the court may order the continuance of any case for the term. 4. When a case is reached in the regular call, and there is no appear- ance for either party, it may be dismissed at the cost of the plaintiff in error or appellant. 5. Where no counsel appears for the plaintiff in error or appellant, and no brief has been filed for him, the defendant in error or appellee may have the writ of error or appeal dismissed at the cost of the de- faulting party. 6. If a case is called for argument at two terms successively, and upon the call at the second term neither party is prepared to argue it, it will be dismissed at the cost of the plaintiff in error or appellant unless a sufficient cause is shown for further postponement. 7. Whenever the plaintiff and defendant in a writ of error pending in the court, or the appellant and appellee in an appeal, shall, by their attorneys of record, sign and file with the clerk an agreement in writ- ing directing the case to be dismissed, and specifying the terms on RULES OP THE UNITED STATES CIRCUIT COURTS OP APPEALS. 885 P ; 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 with- out an order of the court. 8. Cases may also be dismissed in accordance with the second section of rule 17, the first section of rule 23, and the fourth section of rule 24 of this court. 9. Except as in the preceding sections of this rule it is otherwise provided, no motion to dismiss a writ of error or an appeal will be heard unless previous notice of the motion has been given to the plain- tiff in error or appellant or his counsel. 6th 19. PRINTING RECORDS. [See rule 23 in other circuits.] 1. In cases where the record is printed by the appellant under act of February 13, 1911, he shall file with the clerk twenty-five printed copies thereof within the time as limited or extended for making return to writ of error or appeal. The clerk shall examine the printed records so offered to ascertain whether the transcript complies with rule 15, 'and also, whether the printed records comply with the statute and are properly indexed. If, in his judgment, they are insufficient in any- particular, he shall bring the matter to the attention of the court, which will thereupon make such order as to it may seem proper for corrected or supplementary return and printed records. As soon as the printed records are approved as filed or perfected as ordered, the clerk shall deliver one copy to each counsel or group of counsel representing a separate interest, and shall continue such distribution as counsel subse- quently appear. 2. The clerk shall, from time to time and as directed by the senior circuit judge, receive proposals for printing such records as arc to be printed by the clerk, which proposals shall be submitted to such judirc, who will, in his discretion, award such printing to the most satisfactory bidder; and the same shall be done, during the period of such award, by the person to whom it is made. 3. In cases where appellant is not proceeding under such statute, the clerk shall at once, upon the docketing of the case, cause an estimate to be made of the cost of printing the record, including his supervising fee as provided in the table of costs following rule 27, and notify coun- sel for appellant of the estimated amount, which shall be paid to the 886 APPENDIX. clerk within ten days after such notice. If not so paid, the case may be dismissed upon motion or by the court upon its own motion. Supple- mental estimates and payments thereof shall be made, if necessary; any excess payment shall be refunded, when the printing is finished. When the record was printed upon a former review of the same case, and enough old records to be reasonably sufficient for use upon the hearing are on file or available, the use of such old records, in lieu of printing, will be permitted, upon the order of the presiding judge, and to the extent specified in such order. 4. At once, upon the payment of such estimate, the clerk shall cause twenty-five copies of the record to be printed forthwith, shall file the same and shall distribute three copies of the same to counsel for each separate adverse interest then or thereafter appearing. Before print- ing, he shall examine the transcript to ascertain whether it complies with rule 15, and if, in his judgment, it omits anything required by that rule, he shall submit the matter to the court, which will make such order as to it may seem proper regarding a corrected or supplementary return ; and the printing shall be delayed until the filing of any further return so ordered. In printing, the clerk shall omit any matters contained in the transcript which, by rule 15, are required to be omitted. If the appellant shall in writing and before the record is printed, request the clerk so to do, he shall print fifty copies instead of twenty-five. If the appellee shall request such additional copies to be printed, the clerk shall comply with such request, if the appellee, upon demand, advances to him the estimated cost of printing the additional twenty-five copies. If, later, a review in the Supreme Court is sought, the clerk shall deliver such twenty-five copies to the party seeking a review; but if such addi- tional records are wanted by the party who did not pay for the print- ing thereof, the clerk shall require payment to him of the actual cost of such additional printing and shall refund the same to the party who had paid therefor. 5. Where the record is printed by the appellant, he shall file there- with proof by affidavit of the actual cost of such printing, including the amounts paid to the clerk in the district court for the transcript. The amounts paid to the clerk 'of the district court for the manuscript tran- script and to the clerk of this court for printing and for his fees in connection therewith, or the amounts so shown to have been paid below by appellant (not exceeding, for printing, the amount which printing and supervision by the clerk of this court would have cost) shall form a part of the costs of the cause in this court and shall be taxed against the party against whom the costs are given and shall be inserted in the mandate or other proper process, RULES OP THE UNITED STATES CIRCUIT COURTS Of APPEALS. 887 RULE 20. Irt 2d 5th 9th 20. DISMISSING CASES. ["DISMISSING CASES BY AGREEMENT," 1st Circuit.] Whenever the plaintiff and defendant in a writ of error pending in this court, or the appellant and appellee in an appeal, shall, by their attorneys of record, sign and file with the clerk an agreement in writ in- direct ing the case to be dismissed, and specifying the terms on which it is to be dismissed, as to costs, and shall pay to the clerk any fees that may be due to him, it shall be the duty of the clerk to enter the case dismissed, and to give to either party requesting it a copy of the agree- ment filed ; but no mandate or other process shall issue without an order of the court. 3d Same as rule 18, "Certiorari," for all other circuits except 6th, 4th In the fourth circuit the following is added to the above: "No attorney's docket fee shall be taxed in a case dismissed under this rule." 6th 20. BRIEFS. [See rule 24 in other circuits.] 1. Counsel for appellant, within twenty-five days after the filing of the printed copies of the record, shall file with the clerk twenty priiited copies of a brief. 2. This brief shall contain, in order here stated: (1) A concise abstract or statement of the case, presenting succinctly the questions involved, and the manner in which they are raised ; (2) A brief of the argument, exhibiting a clear statement of the points of law or fact to be discussed, with a reference to the pages of the record, and the authorities relied upon in support of each point. When a statute of a state is cited, so much thereof as may be deemed necessary to the decision of the case shall be printed at length. 3. Within thirty days after service of appellant's brief, counsel for appellee shall file with the clerk twenty printed copies of his brief, which shall be of like character to that required of appellant, that no statement of the case shall be required. 888 , APPENDIX. 4. Subsequent briefs may be filed by either party; by the appellant, not less than twenty days, and by the appellee, not less than ten days, before the case is put on the call for argument. Later briefs will not be received by the clerk or by the court, without permission of the court or one of the judges thereof. 5. Every brief of more than twenty pages shall contain on its front fly leaves, a subject index with page references, the subject index to bo supplemented by a list of all cases referred to alphabetically arranged together with references to the pages of the brief where the cases are cited. 6. At or before the time of filing any brief, two copies thereof shall be served upon each adverse counsel who has appeared in this court, and if there has been no appearance here for appellee, then upon his counsel in the court below; and the clerk shall require proof or acknowledgment of such services to be filed with the brief. 7. When an appellant is in default under clause 1 of this rule, the case may be dismissed on motion, or further time may be granted; when an appellee is in default under clause 3 of this rule, the appellant may bring such default to the attention of the court by a motion for a sum- mary judgment of reversal, and thereupon the court will entertain such motion, or grant further time, as may seem proper; at the hearing a party who has not filed a brief, as required by this rule, will not be heard orally, unless the court shall so request. 7th 20. DISMISSING CASES. Whenever the parties to a writ of error or an appeal shall, by their attorneys of record, sign'and file with the clerk an agreement in writing directing the case to be dismissed, and specifying the terms on which it is to be dismissed, in respect to costs, and shall pay to the clerk any fees that may be due to him, the clerk shall enter the case dismissed and shall 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. 8th 20. 'DISMISSING CASES. Whenever the plaintiff and defendant in a writ of error pending in this court or the appellant and appellee in an appeal, shall, by their attorneys of record, sign and file with the clerk an agreement in writing directing the case to be dismissed, and specifying the terms on which it is to be dismissed, as to costs, and shall pay to the clerk any fees that RULES OP THE UNITED STATES CIRCUIT COURTS OP APPEALS. 889 may be due to him, it shall be the duty of the clerk seasonably to pre- sent such agreement to the court for its consideration and determination. RULE 21. 2d 4th 5th 7th 8th 9th 21. MOTIONS. 1. [Except in 9th, which follows 3 below.] All motions to the court shall be reduced to writing, and shall contain a brief statement of the facts and objects of the motion. 2. One ["half," 2d, 7th and 9th circuits] hour on each side shall be allowed to the argument of a motion, and no more, without special leave of the court, granted before the argument begins. 3. No motion to dismiss, except on special assignment by the. court, shall be heard, unless previous notice ["as above," 9th circuit] has been given to the adverse party, or the counsel or attorney of such party. 1 in the 9th circuit is as follows: 1. All motions to the court shall be reduced to writing* shall contain a brief statement of the facts and objects of the motion and shall be served upon opposing counsel at least five days before the day noticed for the hearing. When typewritten, an original and three copies must be filed. 1st 2L MOTIONS. 1. The motion day shall be the first Tuesday of every stated session of the court, and any other Tuesday while the court shall remain in session. 2. Same as subdivision 1 in the other circuits above. 3. All motions to dismiss writs of error or appeals (except motions to docket and dismiss under rule 16) or to advance cases, or for a writ of certiorari, and other special motions, shall be printed, and be accom- panied by printed briefs. 4. No motion to dismiss except on special assignment by the court, shall be heard, unless previous notice has been given to the adverse party or his counsel. 5. Any motion, of which counsel shall have given notice to the clerk in advance, shall be entered on the clerk's list in the order in which hr receives notice thereof, and shall have priority in that order before other motions, unless otherwise specially ordered by the court. 890 APPENDIX. 6. Half an hour on each side shall be allowed to the argument of a motion and no more, without special leave of the court granted before the argument begins. 3d Rule 21 in the 3d circuit, "Death of a Party," is the same as rule 19 for the 1st circuit, except that it omits the words "circuit or" before the words "district court" wherever they occur in 3. The rule as to "Motions" is rule 22, 3d circuit. 6th 21. FORM OF PLEADINGS, RECORDS AND BRIEFS. 1. Records printed by the clerk shall be of a uniform size, printed in small pica type, 24 pica ems to a line, 48 lines to a page, solid, with index and suitable cover, containing the title of the court and cause, the court from which the case is brought to this court and the number of the case; size of pages to be 9V2 X (5^ inches, except that in patent cases the size of the page will be 10%x7% inches, that is to say, large enough to bind in copies of patent office drawings and specifications without folding. The type shall be of a clear, strong face, substantially equivalent to that in which this rule is printed and the paper shall be wholly unglazed. Each page shall carry as a running head in addition to the 48 lines, the name of the paper or of the witness testifying, as found on that page. Each pleading, order, exhibit or other paper shall be separated from the preceding matter by a 2-inch space and shall be headed by its title, in black-faced capitals, and its filing date (e. g., "Answer Filed February 15th, 1913"). The full title of the court and cause below shall be given on the title page ; elsewhere, both shall be omitted. 2. Printed arguments and briefs of attorneys shall conform as far as practicable to the size and style of the printed record but shall contain about 36 lines to the page and be leaded with at least two-point leads. Provisions governing motions and hearings thereon in the 6th circuit are contained in rule 24 for that circuit. RULES OP THE UNITED STATES CIRCUIT COURTS OF APPEALS. 891 RULE 22. 2d 5th 8th 9th 22. PARTIES NOT READY. 1. Where no counsel appears, and no brief has been filed for the plain- tiff in error or appellant, when the case is called ["has been called for trial" 5th circuit] the defendant may have the plaintiff 1 called and the writ of error or appeal dismissed. 2. Where the defendant 2 fails to appear when the case is called for trial, the court may proceed to hear an argument on the part of the plaintiff, 1 and to give judgment according to the right of the case. 3. When a case is reached in the regular call of the docket, and there is no appearance for either party, the case shall be dismissed at the cost of the plaintiff. 1 1 In 8th circuit, reads "plaintiff in error or appellant." 2 In 8th circuit, reads "defendant in error or appellee." 6th 22. CALL AND ORDER OF THE CALENDAR. 1. On the first Tuesday of October and of January, and on the second Tuesday of April, the court, except as may, from time to time, be other- wise ordered, will commence calling cases for argument in the order in which they stand on the calendar, and proceed from day to day during the session in the same order ; but no case from the district of Massachu- setts shall be called before the second Tuesday of the session. 2. Same as subdivision 1 of the- other circuits above. 3. Same as subdivision 2 of the other circuits above. 4. Same as subdivision 3 of the other circuits above except substitute "calendar" for "docket," "may" for "shall" before "be dismissed." 5. If either of the parties is ready when the case is called, the samo may be heard ; and, if neither party is ready, the case may be dismissed, or be postponed to the next session, as the court may order. 6. If a case is called for hearing at two stated sessions successively and, on the call at the second session, neither party is prepared to argue it, it will be dismissed at the cost of the plaintiff in error or appellant, unless sufficient cause is shown for further postponement. 7. The court will not hear arguments on Mondays or Saturdays, unless for special cause it shall so order. 8. Five cases are liable to be called on the coming in of the court on each day. 892 APPENDIX. 9. Revenue and other cases which concern the United States, ami which also involve or affect some matter of general public interest, and criminal cases, and cases once adjudicated by this court on their merits and again brought up by writ of error or appeal, may be advanced by order of the court. 10. Two or more cases involving the same question may, by leave of the court, be heard together, to be argued as one case or more, as the court may order. 11. No agreement of counsel to pass or postpone a case, or to sub- stitute one case for another, shall become effective except on leave. 3d 22. MOTIONS. Same as 1 and 2 of rule 21 above for the 2d circuit, except one hour allowed for argument. Provisions governing the procedure in the 3d circuit when the parties fail to appear or are not ready are contained in 2-6 of rule 19 for that circuit, above. 4th 22. PARTIES NOT READY. 1. When a case is called for hearing, and no counsel appears and no brief has been filed for the plaintiff in error or appellant, the defendant in error or appellee may have the adverse party called and the writ of error or appeal dismissed. 2. Where the defendant in error or appellee fails to appear when the case is called for hearing, the court *nay proceed to hear argument on the part of the plaintiff in error or appellant, and to give judgment according to the right of the case. 3. When a case is reached in the regular call of the docket and no counsel appears for either party and no submission of the case is asked, the case may be dismissed at the cost of the plaintiff in error or appellant. 6th 22. THE HEARING CALENDAR. 1. Upon the expiration of the time limited for filing briefs, the case shall stand for hearing when reached. 2. A calendar, containing all cases docketed and not heard, shall be printed by the clerk for the October, January and April sessions. The cases on the calendar which stand for hearing under clause 1 will be called for argument in their order (as far as practicable) on the calendar, except as special advancements may have been made. RULES OP THE UNITED STATES CIRCUIT COURTS OF. APPEALS. 893 3. By leave of court and on motion of either party (1) cases entitled by statute to precedence, (2) criminal cases, (3) appeals, writs of error or petitions to revise in bankruptcy matters, and (4) cases which are for the second time in this court, may be advanced and set for a desig- nated session. The court may also, on its own motion or for good cause shown on motion of either party, advance any case to be heard at any session, though the time permitted under the rules for filing briefs may not have expired at the day set for hearing. 4. Not more than three cases will be heard on one day (counting, how- ever, as one case, two or more which are heard together). The call for the next day shall, at the adjournment of court, be exhibited in the clerk's office. Counsel choosing to rely on the judgment of the clerk as to the probable time of hearing any case must do so at their own risk. 5. When the case is called, if either party is ready, the case will be heard. If there is no appearance for either party, the case will be dis- missed. If the appellant does not appear by counsel or by printed brief but the appellee does appear, the case will be dismissed. If the appel- lant appears and the appellee does not, the court will hear the appellant. 6. By agreement of counsel in open court or by stipulation filed in the clerk's office, hearing may be continued once to any later session^nrin-,' the term or from the last session of one term to the first session of the next term, -but not to a later day during the same session. Subsequent continuances can be made only by the court and will be only for reasons satisfactory to the court; and engagement of counsel in other courts will not be considered good cause. 7. Two or more cases, involving the same question, may, by order of the court, be heard together, but they must be argued as one cause. 7th 22. PARTIES NOT READY. 1. Where no counsel appears, and no brief has been filed for the plain- tiff in error or appellant, when the case is called for trial the other party may have the writ of error or appeal dismissed. 2. If the appellee or defendant in error fails to appear when the rase is called, the court may proceed to hear argument on the part of the plaintiff in error or appellant and to give judgment according to the right of the case. 3. When a case is reached in the mrular call of the docket, and there is no appearance for either party, and no brief on file for the appellant or plaintiff in error, the case shall be dismissed at the cost of the lant or plaintiff in error. 894 APPENDIX. RULE 23. 1st . 23. PRINTING RECORDS. 1. In all cases, the plaintiff in error or appellant, on docketing a case and filing the record, shall enter into an undertaking to the clerk, with surety to his satisfaction, for the payment of his fees, or otherwise sat- isfy 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 shall notify to the party docketing the case the amount of the estimate. If he shall not pay it within a reasonable time, the clerk shall notify the adverse party, and he may pay it. If neither party shall pay it, and for want of such payment the record shall not have been printed when the case is reached at the regular call of the docket, the case may be dismissed. 3. Upon payment by either party of the amount estimated by the clerk, twenty-five copies of the record shall be printed under the clerk's supervision, for the use of the court and of counsel. 4. The clerk shall take to the printer the original transcript on file, but shall cause copies to be made for the printer of such origjnal papers sent up under rule 14, or other original papers, as are necessary to be printed. 5. The clerk shall supervise the printing, and see that the printed copies are properly indexed; and he shall distribute printed copies to the judges and the reporter, from time to time, as required, and three copies to the counsel for each party. An additional number of copies may be printed at the request of either party for his own use and at his own expense, or by order of the court. 6. The parties may stipulate in writing that parts only of the record shall be printed, and the case may be heard on the parts so printed; but the court may direct the printing of other parts of the record. 7. The clerk may receive from either party, and use as parts of the printed record, o far as the same may be of proper and convenient size and type, any portions which have been printed in any other court, and also printed copies of patents and other exhibits, allowing the party fur- nishing the same such sum therefor as the clerk deems reasonable, to be added t6 and form a part of the cost of printing. 8. If the actual cost of printing the record, together with the fee of the clerk, shall be less than the amount estimated and paid, the amount of the difference shall be refunded by the clerk to the party paying it. RULES OF THE UNITED STATES CIRCUIT COURTS OF AI'l'BALS. 895 If the actual cost and clerk's fee shall exceed the estimate, the excess shall be paid to the clerk before the delivery of a printed copy to either party or his counsel. 9. In case of reversal, affirmance, or dismissal,' with costs, the costs of printing the record and 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. [See order of the supreme court establishing a table of fees for the circuit courts of appeals. This table appears below, 6th circuit, rule 27, subdivision 6.] 2d 23. PRINTING RECORDS. In cases which fall within the provisions of the Act of February 13, 1911 (36 Stats. 901), the plaintiff in error or appellant will print the record and serve copies thereof in accordance with the provisions of said Act. In other cases on the filing of the transcript, the clerk shall forth- with cause fifteen copies of the same to be printed, and shall. furnish three copies thereof to each party, at least thirty days before the argu- ment, and shall file nine copies thereof in his office. The parties may stipulate in writing that parts only of the record shall be printed, and the case may be heard on the parts so printed; but the court may direct the printing of other parts of the record. The clerk shall be entitled to demand of the appellant, or plaintiff in error, the cost of printing the record, before ordering the same to be done. If the record shall not have been printed when the case is reached for argument, for failure of a party to advance the costs of printing, the case may be dismissed. In case of reversal, affirmance, or dismissal, with costs, the amount paid for printing the record shall be taxed against the party against whom costs are given. 3d 23. PRINTING AND DISTRIBUTING RECORDS. 1. It shall be the duty of the clerk, immediately after the record of any case shall have -been filed with him and docketed and the deposit fee of forty dollars shall have been paid, to notify counsel for all par- ties that he will print only the parts of the record mentioned in the second section of this rule, specifying what those parts shall be, and to notify the counsel for plaintiff in error or appellant of his estimate of the cost of printing such parts of the record and of his fee for pre- paring the parts for the printer, indexing the same and supervising the 896 APPENDIX. printing thereof. He shall print no other parts of the record unless, within ten days after such notice, he receives from some one or more of the counsel a written certificate that in his or their judgment other speci- fied parts thereof should be printed in order to enable this court prop- erly to decide the questions raised, in which event the parts so certified as necessary shall also be printed. The court may, in its discretion, direct the printing of other parts of the record, and, in lieu of printing patents or other exhibits, separate printed copies thereof, not less than ten in number, may be filed with the clerk. If other parts of the record than those specified in his notice shall be required to be printed by any of the counsel, or by this court, the clerk shall immediately notify the counsel for the plaintiff in error or appellant of his estimate of the addi- tional cost of preparing, printing and indexing such other parts. The plaintiff in error or appellant shall pay to the clerk, within ten days after notice of any estimate, the amount thereof, in default of which the writ of error or appeal may be dismissed upon the motion of the oppo- site party, or by the court of its own motion. 2. By writing filed either with the clerk of this court, or with the clerk of the court below, the plaintiff in error or the appellant may waive the provisions of the act of Congress approved February 12, 1911 ; and if the act be waived the printing, indexing, supervising and dis- tributing, shall be done by the clerk of this court as heretofore under the provisions of rule 23; and the clerk shall then be entitled to charge the supervising fee of twenty-five cents per printed page, as provided by rule 29. When the record is printed below, the parties and the clerk of the District Court, and (when record is printed in the Court of Appeals) the clerk of this court, shall be careful to avoid as far as pos- sible the duplication of material in order to reduce the costs and fees attendant upon the printing the record. 3. Unless additional parts of the record shall be required to be printed under the provisions of the first section of this rule, the clerk shall print, for the use of the court, only the following parts thereof: In writs of error (a) The docket entries. (b) The pleadings on which the case was heard and determined. (c) The bill of exceptions. (d) The motion and reasons for judgment non obstante veredicto, if any. (e) The opinion of the court below, if any. (f ) The charge to the jury, if any. (g) The verdict of the jury, if any. RULES OP THE UNITED STATES CIRCUIT COURTS OF APPEALS. 897 (h) The judgment entered, (i) The assignments of error. In appeal (a) The docketing entries. (b) The pleadings on which the case was held and determined. (c) The evidence, if any, on which it was heard and determined. (d) A report of the examiner, master, auditor, referee, or other officer who first decided the case, if any. (e) The exceptions to that report, if any. (f ) The opinion of the court, if any. (g) The judgment or decree entered, (h) The assignments of error. In bankruptcy and other cases not being strictly within either of the above classes, the printed record shall conform as nearly as may be prac- ticable to the record in appeals. 4. The clerk shall cause twenty-five copies of the record to be printed, and three copies thereof to be furnished to the counsel of the i>!aintifT in error or appellant, and also three copies to each of the counsel, who shall have entered appearance for any of the other parties, and the re- maining copies to be filed in his office, all if possible, within thirty days after the payment to him of the amount of his estimate made under the provisions of the first section of this rule. 5. The clerk shall supervise the printing of the record, have it prop- erly indexed and distribute printed copies thereof to the judges of the court from time to time as required. 6. If the actual cost of printing the record aod the clerk's fee of twenty-five cents per page for preparing the record for the printer, indexing the same, supervising the printing and distributing the coj shall be less than the amount estimated and paid, the clerk shall rrt'uml the difference to the party paying the same, but if they shnll exceed the clerk's estimate, the amount of such excess shall be paid to the clerk before he shall file the printed copies of the record or deliver any of them to the parties. 7. In case of reversal, affirmance, or dismissal, with costs, the actual cost paid for printing the record by the party in whose favor costs are awarded, and the clerk's fee for supervising the printing, etc.. where such fee is paid by the parties in whose favor costs are awarded, shall be taxed against the party against whom costs are given and shall be inserted in the body of the mandate or other proper process. Manual *T 898 APPENDIX. 8. Each printed record shall show by a note or memorandum, the time when each pleading or document was filed, and shall contain at the tops of its pages the running titles of its contents. 9. In any case where the record, or any part thereof, has been printed in the court below, the same may be embodied in and used as the printed record of this court; provided, the manner and style of printing shall correspond to the requirements of the several sections of this rule for printing done under the supervision of the clerk of this court; but the plaintiff in error or appellant shall pay to the clerk of this court not only the deposit fee of forty dollars on filing the record and having it docketed, but also the fee prescribed by rule 29 for preparing the record for the printer, indexing the same, supervising the printing and dis- tributing the copies thereof. 10. The clerk shall on or before the conclusion of each case, collect and file for preservation in this court three copies of the printed record and of each brief, printed motion and argument submitted in such case, and shall immediately after the mandate in any case shall have been sent down to the lower court, notify the defeated party in this court that unless he removes the remaining copies of the record and brief within ten days after notice so to do, the same will be destroyed, 4th 23. PRINTING RECORDS BY CONSENT. This rule shall apply only to cases in which counsel for all parties to any cause pending in this court, or about to be brought into this court, shall by stipulation,, in writing, filed with the clerk of the court below, agree to be governed by the terms hereof. 1. The transcript may be made and the record printed as has been heretofore the practice of this court, and the same shall, subject to the provisions 3, 6, and 7 of rule 14, be made up by the clerk of the court below and transmitted to this court under his hand and seal as heretofore. 2. All records in such cases shall be printed under the supervision of the clerk of this court by such printer and at such rate as this court may designate. In such cases, upon the payment of the estimated cost of printing, together with the supervising and other fees established by law (which amount shall be deposited with the clerk within ten days after notice thereof), the clerk shall cause to be printed thirty-five copies of the record, twenty-five copies of which shall be filed for the use of the court, three copies furnished to the adverse party, and the remaining opies to be delivered to the appellant, plaintiff in error or petitioner. RULES OF THE UNITED STATES CIRCUIT COURTS OF AIM 'HALS. 899 3. The parties may stipulate in writing that parts only of the tran- script of the record shall be printed, and the case may be heard on the parts so printed, but the court may direct the printing of other parts of the record. 4. If the record shall not have been printed when the case is reached on the regular call of the docket, the case may be dismissed. 5. In case of reversal, affirmance, or dismissal, with costs, the amount paid for the printing of the record and the clerk's fees for supervising, the same shall be taxed against the party against whom costs are given. 6. In cases brought here under this rule it shall b the duty of the plaintiff in error or appellant to docket the case and file the record thereof with the clerk of this court by or before the return day, whether in vacation or in term time but for good cause shown the justice or judge who signed the citation, or any judge of this court, may enl.-i the time by or befoi'e its expiration, the order of enlargement to he filed with the clerk of this court. If the plaintiff in error or appellant shall fail to comply with this rule, the defendant in error or appellee may have the cause docketed and dismissed upon producing a ccrtilic-ato from the clerk of the court wherein the judgment or decree was rendered, stating the case and certifying that such writ of error or appeal has been duly sued out or allowed. And in no case shall the plaintiff in error or appellant be entitled to docket the case and file the record after the same shall have been docketed and dismissed under this rule unless by order of the court. 7. But the defendant in error or appellee may, at his 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 at the term. 8. Upon the filing of the transcript of a record brought up by a writ of error or appeal, the appearance of the counsel for the party docketing the case shall be entered as of course. 5th 23. PRINTING RECORDS. 1. The clerk shall, upon the docketing of a case, forthwith cause an estimate to be made of the cost of printing the record and of his !>< for preparing it for the printer and supervising the printing; anr.!<. hut, at the end of each term, the clerk shall cause such printed opinions to be bound in a substantial manner into one or more volumes, and when so bouml 918 APPENDIX, they shall be deemed to have been recorded within the meaning of this rule. 8th 26. FORM OF PRINTED RECORDS, ARGUMENTS AND BRIEFS. 1. All transcripts of record, arguments and briefs for the use of this court, except in patent causes as hereinafter provided, shall be printed on unglazed paper not less than 6*4 inches in width x 9^ inches in length, including a sufficient margin so that they can be conveniently trimmed and bound in volumes. The paper should equal a weight of eighty pounds per ream on basis of size of sheet 25x38 inches. 2. All records and briefs in patent causes may be printed on unglazed paper, of the weight, as provided in 1 of this rule, of such size that copies of letters patent may be inserted therein without folding, but the size of such records and briefs in patent causes shall not be less than Ty% inches wide and 9^ inches long, so that the records and briefs can be conveniently trimmed and bound in volumes. 3. All records, briefs, supplemental transcripts and returns to writs of certiorari shall be printed in clear 11-point or small pica type (never smaller than 10-point) of 26 pica or 28 small pica ems to a line, and 52 lines, including running head, solid, per printed page, containing substan- tially 1,400 small pica ems. Where testimony or deposition by question and answer are printed, the answer shall follow on the same line as ques- tion whenever the same can be done. 4. All indexes to records and tabular exhibits, which from their nature require smaller type may be printed in 8-point, or brevier type. 5. All covers for records shall be printed in a neat and workmanlike manner on substantial paper equal to a weight of 96 pounds per ream on the basis of a sheet 25x40 inches, and shall contain in conspicuous type the following matter, viz. : First. TRANSCRIPT OF RECORD. Second. UNITED STATES CIRCUIT COURT OP APPEALS EIGHTH CIRCUIT. Third. The abbreviation for number "No." followed by a blank line % of an inch in length. Fourth. The title of the cause as it will be docketed in this court, viz.: , Appellant (or Plaintiff in Error), as the case may be, vs. , Appellee (or Defendant in Error). Fifth. The words "In Error to" (or "Appeal from") as the nature of the case may require, followed by the correct title of the trial court. RULES OF THE UNITED STATES CIRCUIT COURTS OP APPEALS. 919 6. Unless otherwise expressly directed by counsel, the full titles of the * court and cause once correctly shown in the printed transcript shall not be repeated when unchanged. There shall be placed at the head of each subsequent pleading, etc., a brief designation of its character. Unless otherwise expressly directed by counsel, the indorsements on pleadings, etc., shall not be printed in full ; it shall be sufficient to print : "Filed in the Court on ," giving the correct date and name of the court. The date of all orders and decrees and the name of the judge or judges making them shall always appear. In printed transcripts the pleadings, orders, testimony of witnesses, etc., shall be separated by a face rule three inches long. The clerk shall indicate to the printer the appropriate places therefor. When inserts are folded several times to conform to the size of the printed record, stubs should be inserted at the binding side of the record to equalize the space occupied by the folds. Unmounted photographs should be used when copies of such are required in printed records. As this rule is intended primarily for the guidance of the printer his attention should be directed thereto before the record or brief is printed. A sample copy of a printed record will be furnished by the clerk of this court on application therefor. Records and briefs not printed in substantial conformity with the pro- visions of this rule will not be accepted or filed. 9th 26. FORM OF PRINTED RECORDS, ARGUMENTS, BRIEFS, AND PETITIONS FOR REHEARING. 1. All records printed for the nse of the court must be printed on un- glazed paper, 9*4 inches long and 6*4 inches wide. The printed page, exclusive of any marginal note, reference or running head, must be 7 inches long and 4 inches wide, excepting in patent cases where counsel furnish to the clerk at the time of docketing the cause patent office draw- ings and specifications for insertion. In such cases the margin of the record may be sufficiently enlarged to accommodate such drawings and specifications. The record must be properly indexed. Pica double- leaded is the only mode of composition allowed. 2. All arguments, briefs and petitions for rehearing, printed for the use of the court, must be printed on unruled white writing paper, 9*4 inches long and 6*4 inches wide. The printed page, exclusive of any marginal note, reference or running head, must be 7 inches long and 4 inches wide. Pica double leaded is the only mode of composition allowed. 920 APPENDIX. RULE 27. 1st 2d 5th - 9th 27. COPIES OF RECORDS AND BRIEFS. The clerk shall carefully preserve in his office one copy of a printed record in every case submitted to the court for its consideration and of all printed motions, briefs, and arguments filed therein. 3d. 27. REHEARING. 1. A petition for rehearing a cause may be filed with the clerk at any time within thirty days after the entry therein of the final judgment or final decree of this court, and, if the term within which such judgment or decree shall have been entered shall expire during said period of thirty days, the judgment or decree, and the record on which the same shall have been entered, shall nevertheless remain subject to the control of this court until the full expiration of the time herein allowed for the filing of the petition; Provided, however, that no such petition shall be filed after this court, by any order made within said period of thirty days, shall have directed the immediate issue of a mandate or other pro- cess in the nature of a procedendo (see rule 30). The petition shall be printed, shall briefly and distinctly state the reasons for a rehearing, and shall be supported by the certificate of counsel. 4th 27. COPIES OF RECORDS AND BRIEFS. The clerk shall cause to be bound two copies of the printed record in every case, and of all printed motions, briefs and arguments filed there- in ; one copy to be carefully preserved in his office, and one copy for the use of the court library. The cost of the same to be paid for by the clerk out of the revenues of his office. .=; :** 6th 27. COSTS. 1. Where any case shall be dismissed out of this court for lack of jurisdiction herein, only such costs as are incidental to hearing and de- termining the question of jurisdiction will be awarded; in all other cases (except when provided by statute or general rule) upon the final disposi- tion of a proceeding in this court costs will be awarded to the party here prevailing, unless the court, by a special direction, denies, otherwise awards or apportions the costs. RULES OP THE UNITED STATES CIRCUIT COURTS OP APPEALS. 921 2. In rases to which the United States is a party, no costs in this court will be awarded. 3. In denying or apportioning costs under clause 1, the court will en- force, as far as possible, the duty of each party to confine within the limits prescribed by rules 10 and 15 the bill of exception, statement of evidence, and transcript. 4. The cost of stenographers' transcripts of testimony used in settling a bill of exceptions, or a statement of evidence, will not be taxed in this court, but shall be awarded and taxed by the court below after mandate, as this court may direct, or lacking such direction as to that court shall seem proper. 5. When costs are allowed it shall be the duty of the clerk to insert the amount thereof in the body of the mandate or other process sent to the court below, and annex to the same a bill of items taxed in detail. 6. The proper fees of the clerk therefor shall be paid before any tran- script of the record in any case shall be transmitted to the Supreme Court. TABLE OF COSTS. Order Promulgated by the Supreme Court of the United States February 28, 1898. Ordered, In pursuance of the Act of Congress of February 19, 1897 (29 Stats. 536, c. 263), that the following table of fees and costs in the circuit courts of appeals be, and the same is hereby, established, to take effect on the first day of March, A. D. 1898, and no other fees and costs than those therein named shall thereafter be charged: Docketing a case and filing the record $ 5 00 Entering an appearance Transferring a case to the printed calendar 1 00 Entering a continuance 25 Filing a motion, order or other paper Entering any rule, or making or copying any record or other paper, for each one hundred words 20 Entering a judgment or decree 1 00 Every search of the records of the court and certifying the same. . 1 00 Affixing a certificate and a seal to any paper 1 00 Receiving, keeping and paying money in pursuance of any statute or order of court, one per cent on the amount so received, kept and paid. Preparing the record for the printer, indexing the same, supervis- ing the printing and distributing the copies, for each printed page of the record and index 922 APPENDIX. Making a manuscript copy of the record, when required by the rules, for each one hundred words (but nothing in addition for supervising the printing) 20 Issuing a writ of error and accompanying papers, or a mandate or other process 5 00 Filing briefs, for each party appearing 5 00 Copy of an opinion of the court, certified under seal, for each printed page (but not to exceed five dollars in the whole for any copy) 1 00 Attorneys' docket fee 20 00 7th 27. REHEARING. A petition for rehearing must be filed within thirty days after entry of judgment or decree, or after filing of the opinion, shall be in print, and be served forthwith by copy upon the opposing party, who, within twenty days from such service, may file a printed answer, and the peti- tion shall be determined without oral arguments, unless otherwise* or- dered. If a petition be not filed within the time allowed, and upon the overruling of a petition, the clerk shall, without special order, issue the mandate of the court to the court below. Twenty copies of such petition or answer shall be filed with the clerk of this court. 8th 27. COPIES OF RECORDS AND BRIEFS. The clerk shall cause to be bound in volumes in a substantial manner and shall carefully preserve in his office one copy of the printed record in every case submitted to the court for its consideration, and of all printed motions, briefs, and arguments filed therein. RULE 28. 1st 2d 5th 8th 28. OPINIONS OF THE COURT. 1. All opinions delivered by the court shall, immediately upon the de- livery thereof, be handed to the clerk to be recorded. 2. The original opinions of the court shall be filed with the clerk of this court for preservation. 3. [This subdivision in 8th circuit immediately below.] Opinions printed under the supervision of the judge delivering the same need not be copied by the clerk into a book of records; but, at the end of each RULES OP THE UNITED STATES CIRCUIT COURTS 09 APPEALS. 923 term, the clerk shall cause such printed opinions to be bound in a ub- stantial manner into one or more volumes, and when so bound they shall be deemed to have been recorded within the meaning of this rule. 8th 3. Opinions printed or prepared under the supervision of the judge delivering the same need not be copied by the clerk into a book of rec- ords; but, at the end of each term, the clerk shall cause such printed or original opinions to be bound in a substantial manner into one or more volumes, and when so bound they shall be deemed to have been recorded, within the meaning of this rule. 28. INTEREST. 3d [Rule on "Opinions' is rule 26 in 3d circuit.] 1. In cases where a writ of error is prosecuted in this court, and the judgment of the inferior court is affirmed, the interest shall be calcu- lated and levied, from the date of the judgment below until the same is paid, at the same rate that similar judgments bear interest in the courts of the state where such judgment was rendered. 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 ten pW cent, in addition to interest, shall be awarded upon the amount of the jmli^nent. 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. 4th 28. OPINIONS OF THE COURT. 1. All opinions delivered by the court shall be printed under the supervision of the judge delivering the same, or of one of the circuit judges, the cost of such printing to be paid by the clerk out of the revenues of his office and charged to the litigants in the rcsi>ective cases, to be taxed and allowed as other costs. 2. The original opinions of the court shall be filed with the clerk of this court for preservation. 3. The clerk of this court shall from time to time canse two sets of the printed opinions of this court to be bound in a substantial manner 924 APPENDIX. into volumes, one set to be kept in the clerk's office and one, set to be kept in the court library. 6th 28. REHEARINGS. A petition for rehearing after judgment can be presented only within thirty days (at the same or succeeding term) after the day when the printed opinion of the court is filed, and can be obtained by counsel for the parties (which date the clerk will note upon the docket), unless by special leave granted during such thirty days by the court or a judjje thereof, and must be printed, and briefly and distinctly state its grounds, and be supported by certificate of counsel, and will not be granted, or permitted to be argued, unless a judge who concurred in the judgment desires it and a maj6rity of the court so determines. [Rule on "Opinions" is rule 25 in 6th circuit.] 7th 28. INTEREST. 1. When a judgment for the payment of money is affirmed by this court, the interest thereon shall be calculated and levied from the date of the judgment below until the same is paid, and at the same rate that similar judgments bear interest in the courts of the state where such judgment was 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 ten per cent, in addition to interest, shall be awarded on 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. 5. In cases where money is paid into court, any party interested may move for an order that the clerk deposit the same under the direction of the court. On deposits so made, the clerk shall account for such interest as he may have collected on the fund. 9th 28. OPINIONS OF THE COURT. The original opinions of the court shall be filed with the clerk of this court for preservation, and when so filed the same shall be deemed to have been recorded within the meaning of this rule. BULES OP THE UNITED STATES CIRCUIT COURTS OF APPEALS. 925 RULE 29. 29. REHEARING. A petition for a rehearing after judgment may be filed at the term at which the judgment is entered, and within one calendar mouth after such entry, and not later unless by leave granted during the term. It must be in print, in the form and style required by rule 26, and it must briefly and distinctly state its grounds, and be supported by a certificate of counsel. It will not be granted, or permitted to be argued, unless a judge who concurred in the judgment desires it and a majority of the court so determines. Provided, Whenever a judgment is entered within less than a month before the term adjourns, the petition may be filed within a month after the entry of judgment, and with the same effect after the term as though filed before the adjournment. (As amended Oct. 4, 1898.) 2d 29. REHEARING. A petition for rehearing after judgment can be presented only at the term at which judgment is entered, unless by special leave granted dur- ing the term; and must be printed and briefly and distinctly state its grounds, and be supported by certificate of counsel; and will not be granted, or permitted to be argued, unless a judge who concurred in the judgment desires it, and a majority of the court so determines. 3d 29. COSTS. 1. In all cases where any suit shall be dismissed in this court, except where the dismissal shall be for want of jurisdiction, costs shall be al- lowed to the defendant in error or appellee, unless otherwise agreed by the parties. 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 other- wise 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 transcript of record from the court below shall be taxable in that court as costs in the case. 926 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 cojurt for or against the United States. 5. 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 annexed to the same, the bill of items taxed in detail. 6. In all cases certified to the Supreme Court or removed thereto by certiorari or otherwise, the fees of the clerk of this court shall be paid before a transcript of the record shall be transmitted to the Supreme Court. 7. In pursuance of the act of Congress of February 19, 1897 (29 Stats. 536, c. 263), and of the order of the Supreme Court of January 10, 1898, as amended February 28, 1898 (90 Fed. Rep. clxxi), the following table of fees and costs is established for this court: [This table is set out above under 6th circuit, rule 27, subd. 6.] 4th 29. REHEARING. A petition for rehearing can be presented only within thirty days after judgment is entered, unless by special leave granted before the expira- tion of said 30 days; and must be printed and briefly and distinctly state its grounds, and be supported by its certificate of counsel; and will not be granted, or permitted to be argued, unless judge who con- curred in the judgment desires it, and the majority of the court so de- termine. But such petition shall not operate to stay the mandate or other process provided for in rule 32, except by special order of the court. 5th 29. REHEARING. A petition for a rehearing after judgment can be presented only dur- ing the term at which judgment is entered, and within twenty days after such entry, unless by special leave granted by the Court, or one of the judges, and must be printed and briefly and distinctly state its grounds without argument, and be supported by certificate of counsel; and will not be granted or permitted to be argued unless a judge who concurred in the judgment desii-es it and a majority of the Court so determines. (As amended Jan. 12, 1905.) RULES OF THE UNITED STATES CIBCU1T COURTS OK Afl'KALflL 927 6th 29. MANDATE. In all cases finally determined in this court, a mandate, or other pro- cess in the nature of a procedendo, shall be issued to the court below, for the purpose of informing such court of the proceedings in this court, so that further proceedings may be had in such court as to law and jus- tice may appertain. Such mandate shall not issue until time has elapsed for filing a peti- tion to rehear, as defined by rule 28; and no mandate or other process of procedendo shall issue when a petition to rehear is pending, unless specially ordered. Every mandate shall be accompanied by a copy of the opinion filed in the cause in which it is issued, and the charge for the same shall be taxed in the costs of the case. In cases not requiring special form of process, the mandate (unless otherwise directed by the court or a judge thereof) shall be issued by the cleric upon the expiration of time for filing rehearing petition, or upon the denial of such petition, and as well in vacation as in term time. 7th 29. COSTS. 1. When any suit shall be dismissed in this court, except for want of jurisdiction, costs shall be allowed to the defendant in error or appellee, unless otherwise agreed by the parties. 2. In every case of a judgment or decree affirmed in this court costs shall be allowed to the defendant in error or appellee unless otherwise ordered by the court. 3. In every case of reversal of a judgment or decree in this court costs shall be allowed to the plaintiff in error or appellant unless otherwise ordered by the court. The costs of the transcript of the record from the court below shall be taxable in that court as costs in the case. 4. No costs shall be allowed in this court for or against the United States. 5. 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, directing to award execution thereupon and to annex to the same the bill of items taxed in detail. 6. In all cases certified to the Supreme Court or n-rnovcd thereto by certiorari or otherwise, the fees of the clerk of this court shall be paid before a transcript of the record shall be transmitted to th Supreme Court. 928 APPENDIX. 7. The fees of the clerk of this court, as prescribed by order of the Supreme Court, made February 28, 1898, are as follows: [This table is set out above under 6th circuit, rule 27, subd. 6.] 8th 29. REHEARING. 1. A petition for rehearing may be presented and filed within sixty days after the date of the judgment or decree, and jurisdiction to hear and decide the question presented, thereby is reserved, notwithstanding the lapse of the term within the sixty days. 2. Such petition for hearing must be printed and twenty copies thereof filed with the clerk and must briefly and distinctly state its grounds and be supported by a certificate of counsel, and will not be granted or permitted to be argued unless the judge who concurred in the judgment desires it, and a majority of the court so determines. 9th 29. REHEARING. A petition for rehearing may be presented within thirty days after judgment. It must be printed, and briefly and distinctly state its grounds, and be supported by certificate of counsel that in his judgment it is well founded, and that it is not interposed for delay. Twenty printed copies must be filed with the clerk. See, also, subdivision 2 of rule 26 and rule 32.) RULE 30. 1st 2d 4th 5th 8th 9th 30. INTEREST. 1. In cases where a writ of error is prosecuted in this court and the judgment of the inferior court is affirmed, the interest shall be calcu- lated and levied, from the date of the judgment below until the same is paid, at the same rate that similar judgments bear interest in the courts of the state or territory 1 where such judgment was 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 ten per cent, in addition to interest, shall be awarded upon the amount of the judgment. 3. The same rule shall be applied to decrees for the payment of money in cases of 2 equity, unless otherwise ordered by this court. 4. In cases of 2 admiralty damages and interest may be allowed, if specially directed by the court. 1 In the 4th circuit the words "or territory" are omitted. 2 Substitute "in" for "of" in 8th circuit. BULKS OF THE UNITED STATES CIRCUIT COUKT8 OF APPEALS. 3d 30. MANDATE. 1. In each case finally determined in this court, a mandate or other proper process in the nature of a procedendo shall be issued to the court below, for the purpose of informing such court of the proceeding's in this court so that further proceedings may be had in such court as to law and justice may appertain. Such mandate or other process may issue at any time on the order of the court, and, when not otherwise or- dered, it shall issue as of course at the expiration of thirty days from the date of entering the final judgment or final decree of this court. Provisions governing "interest" in the 3d circuit, identical with those in rule 30 for the 1st circuit, are contained in rule 28 for the third cir- cuit. 6th 30. PHYSICAL EXHIBITS. 1. Physical exhibits, not returned with the record but which are to bo used on the hearing, shall be placed in the custody of the marshal of this court at least ten days before the case is heard or submitted. 2. All such physical exhibits shall be taken away by the parties promptly after the mandate issues. When this is not done, it shall be the duty of the marshal to notify the counsel in the case, by mail or otherwise, of the requirements of this rule, and if the articles are not removed within reasonable time after the notice is given, he shall de- stroy them or make such other disposition of them as to him may seem best. Provisions governing "interest" and damages in the 6th circuit are contained in rule 26 above. 7th 30. MANDATE. In all cases finally determined in this court, a mandate or other proper process in the nature of a procedendo shall be issued, on the order or by the rule of this court, to the court below, for the purpose of inforniin.- such court of the proceedings in this court, so that further proceed, may be had in such court as to law and justice may appertain. Provisions governing "interest" in the 7th circuit are contained in rule 28 above. Manual 69 930 APPENDIX RULE 31. 1st 2d 4th 5th 8tk 9th 31. COSTS. L In all cases where any suit shall be dismissed in this court, 1 except where the dismissal shall be for want of jurisdiction, costs shall be al- lowed to the defendant in error or appellee, unless otherwise agreed by the parties. 2 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 other- wise ordered by the court. 3. 3 In cases of reversal of any judgment or decree in this court, costs shall be allowed to the plaintiff in error or appellant, 4 unless otherwise ordered by the court. 4. 3 The cost of the transcript of the record from the court below shall be taxable in that court as costs in the case. 5. 5 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. 6. 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. 7 In all cases certified to the Supreme Court or removed thereto by eertiorari or otherwise, the fees of the clerk of this court shall be paid before a transcript of the record shall be transmitted to the Supreme Court. 8 1 In the 8th and 9th circuits the following words are omitted after note number: "except where the dismissal shall be for want of jurisdiction." 2 In the 9th circuit substitute for the words "agreed by the parties," the words "ordered by the court." 3 In the 2d, 4th and 5th circuits, 3 and 4 as given above are combined in 3. In the 2d circuit the following is added to 3 and 4, combined as subd. 3: "And the clerk of the court below shall send to the clerk of this court with the transcript of record a certificate of the cost of such transcript." In the 4th circuit the following is added to 3 and 4, combined as subd. 3: "The expense of printing, however, shall be taxed at actual cost (to be shown by the affidavit of the printer), but in no event to exceed twenty cents per folio of one hundred words." In the 8th circuit the following is added to 3 and 4, combined as subd. 3: "Where the record has been printed in this court under the provisions of 1 and 2 of rule 23, the cost of printing thirty copies of the transcript- of record from the court below shall be taxed as costs in the case, unless otherwise ordered by thin court, but no allowance shall be made for the amount paid to the clerk of the court below for the written or typewritten transcript RULES OF THE UNITED STATES CIRCUIT COURTS OF APPEALS. 931 of the record. Where the record has been printed in the court below and a copy of such printed record certified to this court the cost of printing twenty-five copies of such record or portion thereof shall be taxable ai costs in the case in the court below, unless otherwise ordered by this court." 4 In the 9th circuit the following is added after the not* number: "in- cluding the cost of transcript from the court below." 5 In the 2d, 4th, 5th, 8th and 9th circuits subd. 5 is numbered 4. In the 2d, 4th, 5th, 8th and 9th circuits subd. 6 is numbered 5. 7 In the 2d, 4th, 5th, 8th and 9th circuit subd. 7 is numbered 6. In the 4th and 9th circuits an additional subdivision, numbered 7 is added. In the 4th it reads: "7. The following table of feea and costs, established under the act of Congress of February 19, 1897 (29 Stats. 536, c. 263), shall remain and continue in effect with the promulgation of these rules." i 1 follows the table which is the same as that set out above in 6th circuit, Rule 27, subd. 6.) In the 9th circuit the additional subdivision is as follows: "7. Upon the clerk's producing satisfactory evidence, by affidavit or the acknowledgment of the parties or their sureties, of having served a copy of any bill of fees due by them, respectively, in this court, on such parties or their surf an attachment shall issue against such parties or sureties respectively to compel payment of said fees." 8 In the 8th circuit add to subdivision 7, at the end thereof, the follow- ing: "except that no fees shall be charged or collected for any printed record or portion thereof required by law to be used by th clerk in the preparation of such transcript of record." 3d 7th 31. CUSTODY OF PRISONERS ON HABEAS CORPUS. [Rule on "Costs" in 3d and 7th circuits is rule 29.] [Other circuits this is rule 33.] 1. Pending an appeal from the decision of any court or judge doolin- ing to grant the writ of habeas corpus, the custody of the prisoner shall not be disturbed. 2. Pending an appeal from the final decision of any court or judge discharging the writ after it has been issued, the prisoner shall be re- manded to the custody from which he was taken by the writ, or shall, for good cause shown, be detained in custody of the court or judge, or be enlarged upon recognizance, as hereinafter provided. 3. Pending an appeal from a final decision of any court or judge dis charging the prisoner, he shall be enlarged upon recognizance, with surety, for appearance to answer the judgment of the appellate court, except where, for special reasons, sureties ought not to be required. 6th 31. LIBRARY. [Rule on "Costs" in 6th circuit is rule 27.] All money collected by the clerk, the disposition of which is not other- wise directed by law, shall constitute a fund to bo ox-ponded bv 'llnto court with the apostles, as required in rule 4 of the Admiralty Rules. (Kenney v. Louie, No. 939. Motion to dismiss appeal denied, May 6, 1903.) RULE 2. 2d 9th NOTICE AND BOND. Sec. 1. When a notice of appeal is served, the appellant shall file in the clerk's office of the District Court a bond for costs of the appeal, 962 APPENDIX. with sufficient surety in the sum of $250, conditioned that the appellant shall prosecute his appeal to effect and pay the costs, if the appeal is not sustained. Such security shall be given within ten days after filinc the notice, or the appeal shall be deemed abandoned, and the decree of the court below enforced, unless otherwise ordered by a judge of this court. Sec. 2. And if the appellant desires to stay the execution of the de- cree of the court below, the bond which he shall give shall be a bond with sufficient surety in such further sum as the judge of the District Court or a judge of this ccmrt shall order, conditioned that he will abide by and perform whatever decree may be rendered by this court in the cause, or on the mandate of this court by the court below. Sec. 3. The appellant shall, on filing either of such bonds, give notice of such filing, and of the names and residences of the sureties, and if the appellee, within two days, excepts to the sureties they shall justify, on notice, within two days after such exception. RULERS. 2d 9t* REVIEW IN PART ONLY. The appellant may also, at his option, state in his notice of appeal that he desires only to review one or more questions involved in the cause, which questions must be clearly and succinctly stated; and he shall be concluded in this behalf by such notice, and the review upon such an appeal shall be limited to such question or questions. RULE 4. 2d : 7^- 9th APOSTLES ON APPEAL TO CONTAIN. Sec. 1. The apostles, on an appeal to this court, shall, in cases where a general notice of appeal is served, consist of the following: (1) A caption exhibiting the proper style of the court and the title of the cause, and a statement showing the time of the commencement of the , suit; the names of the parties, setting forth the original parties and those who have become parties before the appeal, if any change has taken place ; the several dates when the respective pleadings were filed, whether or not the defendant was arrested, or bail taken, or properly attached, RULES IN ADMIRALTY. 963 or arrested and if so, an account of the proceedings thereunder; the time when the trial was had, and the name of the judge hearing the same; whether or not any question was referred to a commissioner, or commis- sioners, and if so, the result of the proceedings and report thereon ; the date of the entry of the interlocutory and final decree; and the date when the notice of appeal was filed. (2) All the pleadings, with the exhibit annexed thereto. (3) All the testimony and other proofs adduced in the cause. (4) The interlocutory decree and any order of the court which appel- lant may desire to have reviewed on the appeal. (5) Any report of a commissioner or commissioners to which excep- tion may have been taken, with the order or orders of the court respect- ing the same, and the exceptions to the report, and so much of the testi- mony taken in the proceedings as may be necessary to a review of the exceptions. (6) All opinions of the court, whether upon interlocutory questions or finally deciding the cause. (7) The final decree, and the notice of appeal; and (8) The assignments of error. Sec. 2. All other papers shall be omitted unless otherwise ordered by the judge who heard the cause. Sec. 3. Where the appellant shall appeal specially and seek only to review one or more questions involved in the cause, the apostles may. by stipulation between the proctors for the respective parties, contain onlv such papers and proceedings and evidence as are necessary to review the questions raised by the appeal. RULE 5. 2d i 8th CERTIFYING RECORDS. The appellant shall, within thirty days after giving notice of appeal, procure to be filed in this court the apostles certified by the clerk of the district court, or in case of a special appeal, the stipulated record, with the certification by the said clerk of all papers contained therein on file in his office. 964 APPENDIX. RULE 6. - 2d - - - - - - IF APPEARANCE OF APPELLEE NOT ENTERED. 9th If the appellee does not cause his appearance to be entered in this court within ten days after service on his proctor of notice that the apostles are filed in this court, the appellant may proceed ex parte in the cause, and have such decree as the nature of the case may demand. RULE 7. - 2d - - - - - - 9th NEW ALLEGATIONS, ETC. Upon sufficient cause shown, this court, or any judge thereof, may allow either appellant or appellee to make new allegations or pray dif- ferent relief or interpose a new defense, or take new proofs. ["Applica- tions for such leave must be made within fifteen days after the filing of the apostles and upon at least four days' notice to the adverse party," 2d circuit.] ["Application for such leave may be made at any time after the perfecting of the appeal to this court, and within fifteen days after the filing in this court of the apostles, and upon at least four days' notice to the adverse party or his attorney of record," 9th circuit.] RULE 8. - 2d - - - - - - 9th NEW PLEADINGS NEW TESTIMONY. . If leave be granted to make new allegations, pray different relief or interpose a new defense, the moving party shall, within ten days there- after, serve such new pleading, duly verified, on the adverse party, who shall, if such pleading be a libel, within twenty days answer on oath. If leave be given to take new testimony, the same may be taken and filed within thirty days after the entry of the order granting such leave, and the adverse party may take and file counter testimony within twenty days after such filing. BULES IN ADMIRALTY. 965 RULE 9. 2d tee below NEW TESTIMONY HOW TAKEN. Such testimony shall be taken by deposition before any United States commissioner, or notary public, upon reasonable notice in writing given to the opposite party; or by commission issued out of this court with interrogatories annexed. Upon proper cause shown, the court may grant an open commission. 9th Such testimony shall be taken by deposition before the clerk of this court, or any United States commissioner, or any clerk of a district court of the United States, or any notary public upon reasonable notice, in writing, given to the opposite party or his attorney of record, either in this court or in the court below, which notice must state the name or names of the witness or witnesses and the time and place of taking his or their deposition or depositions; or by commission issued out of this court with interrogatories annexed. Upon sufficient cause shown, the court may grant an open commission. RULE 10. 2d 9th PRINTING NEW PLEADINGS AND TESTIMONY. If new pleadings are filed or testimony taken in this court, the same shall also be printed and furnished by the clerk, as in the 23d General Rule provided. RULE 11. 2d 9th MOTIONS. All motions shall be made upon at least four days' notice. RULE 12. 2d below WRIT OF INHIBITION. A writ of inhibition may be awarded by this court on motion of the appellant to stay proceedings in the court below when circumstances require. 966 APPENDIX. 9th EXTENSION OF TIME. The time specified in the foregoing rules for any proceeding may be extended by order of a judge of this court. These rules shall go into effect on the first Monday of October, 1900. RULE 13. 2d MANDAMUS. A mandamus may, in like manner, be obtained to compel a return of the apostles when unreasonably delayed by the clerk, or court below. RULE 14. 2d - CASES TO BE PLACED ON DOCKET. Each case shall be placed on the docket as soon as the printing of the apostles is completed by the clerk. RULE 15. 2d BRIEFS. Sec. 1. Counsel for the appellant shall file with the clerk of this court, at least twenty days before the case is called for argument ten copies of a printed brief, and shall at the same time serve two copies thereof on the proctors of record, or on the counsel engaged upon the opposite side. This brief shall contain in order here stated : (1) A statement of the nature of the appeal, the court from which the appeal is taken, and a concise abstract or statement of the case, pre- senting succinctly the questions involved, and the manner in which they were raised. (2) If the pleadings have been amended in this court or new proofs have been taken, it shall be stated what amendments have been made and in what respect the new proofs have changed, or tended to change, fhe case as made in the court below. RULES IN ADMIRALTY. 967 i * (3) A brief of the argument, exhibiting a clear statement of the points of law or fact to be discussed, with a reference to the folios of the record or to the numbers of the questions, and the authorities relied upon in support of each point. Sec. 2. The counsel for the appellee shall file with the clerk of the court ten printed copies of his brief and serve two copies thereof at least ten days before the case is called for argument. His brief shall be of a like character with that required of the appellant, and in case new proofs are taken on behalf of the appellee, the brief shall so state and wherein the new proofs have changed the case as made in the court below. Sec. 3. The reasonable expense of printing briefs shall be an item of taxable costs. RULE 16. - 2d - - MANDATES. The decrees of this court shall direct that a mandate issue to the court below. RULE 17. EXTENSION OF TIME. The time specified in the foregoing rule for any proceeding may be extended by order of a judge of this court. RULE 18. WHEN RULES OF DISTRICT COURTS TO APPLY. In all matters in civil causes of admiralty and maritime jurisdiction not expressly provided for by the foregoing rules of this court, the rules of practice of the district court of the district in which the cause was decided, being in force at the time (not being inconsistent with these rules), will be adopted so far as may seem proi>cr. 968 APPENDIX. RULE 19. 2d WHAT GENERAL RULES SHALL BE DEEMED ADMIRALTY RULES. The following of the General Rules of this court, and no others, shall be deemed admiralty rules, viz.: Rules 3, 4, 5, 6, 7, 9, 11, 12; sec. 4 of rule 14; rules 15, 16, 17, 18, 19, 20, 21, 22, 23; sec. 5 of General Rule 24; rules 25, 26, 27, 28, 29; sec. 4 of rule 30; rules 31, 32, 34, 36 and 37. EQUITY RULES IN FORCE FEBRUARY 1, 1913, COMPARED WITH OLD EQUITY RULES. (Official Index at end of Rules. Also Indexed in General Index showing Sections of Text where Treated. Numerical Table of Rules referring to sections of text where roles are quoted or referred to, may be found at p. 1035. pott. EQUITY RULES. 971 TABLE OF OLD EQUITY RULES SHOWING WHAT HAVE BEEN IN- CORPORATED AND WHAT OMITTED IN THE NEW EQUITY RULES. Those marked with a star (*) are identical with the new role indicated. Old New 1 1 par. 1. 2 2 and See 6. 3 1 par. 2. 4_ 4-3-6. 5 5. 6 Out See 6. 7 7* substantially. 8 8. 9 9* 1011' substantially. 1112. 1212. 1313* 1414* substantially. 1515* 16 Out See 3. 17 Out See 16 and 18. 1816 and 17 and 58. 1917. 20 25 par. 1. 2125 pars 1-2-3-5. 2225 par. 4. 23 25 par. 5. 2424. 25 Out. 2621. 27 Out See 2L 28 2S and 19. 2928 and 19. 30 Out See 19. 31 Out Sec 29. 32 Out See 29. 33 Out See 29. 34 Out See 29. 35 Out See 29 and 28. 36 Out See 29. 37 Out See 29. 38 Out See 29. 39 Out See 29. 40 See 58. 41 Out See 58. 42 Out See 58. 43 Out See 58. 44 Out See 58. 45 Out See 31. 46 32* with time changed. 4739. Old New 48 3S. 4937. 50 41* 51 42* 5243. 53 44. 5440. 55 Out See 71. 5645. 5734. 5835* 5936. 60 Out See 19 and 30. 61 Abolished 33 and 21. 62 Out. 63 Out See 33. 64 Out See 33 and part 58. 65 Out. 66 Abolished 31. 67 See 58 and 46-49-51-52-53-47 6854. 6955 and 47. 7047 and 54. 71 Out See 58. 72 Out See 30 and 58. 73 Out. 7459. 75_60 7661* 7762. 7852 See 4. 7963. 8064* 8165* 8268. 53 66* with time changed. 8467. 8572. 8671* 8770* 8869. 8979. 00 Out See 79. 9178* 9210* substantially. 9374. 9427. 972 APPENDIX. CORRESPONDING TABLE OF NEW RULES SHOWING FROM WHERE DRAWN IN THE OLD RULES AND WHAT ARE ENTIRELY NEW. THOSE MARKED WITH A STAR (*) ARE IDENTICAL WITH THE OLD RULE. New Old Par. 11-1. Par. 21-3. 2 2. 3 new. See 4. 4 4. 5 5. 6 new. 7 7* substantially. 8 pt. new. 8. 9 9* 1092* substantially. 1110* substantially. v 1211 and 12. 1313* 14 14* substantially. 1515* 1618 first part. 1719. 18 New. 19 28, 29 and 60 supersedes 30. 20 new. 21 new. See 26, 27, 61. 22 new. 23 new. 24 partly new. 24. 25 Par. 120. " 221. " 3, new. " 422 pt. " 5 pt. 21 and 23. 26 new. 2794. 28-^28' 1st pt. 29 1st pt. 29 new superseding 31 to 40. 30 new. See 60. Supersedes 72. 31 new superseding 45 and 66. 32 46* with time changed. 33 new superseding 61, 63, 64. 34 new superseding 57. 3558* 3659. 37 new superseding 49. 3848. New Old 39 47. 4054. 4150* 4251* 43 52 and pt. new. 4453. 45 new superseding 5$. 46 abolishing 67, 78. 47 new, pt. 67, pt. 69, pt. 70. 48 new. 49 new, pt. 67. 50 new. 51 new last pt. from pt. 67. 52 pt. new. 78 1st pt. 67 pt. 5367 pt. 54 68 and 70 superseded. 55 new superseding 69. 56 new. 57 new. 58 new pt. 18 2nd pt. Supersedes 40, 41, 42, 43, 44, 64, 67. 5974. 60 75 61 76* 6277. 6379. 64 80 6581* 66 83* with time changed. 67 S4. 6882. 6988. 70 87 7186* 7285. 73 new superseding 55. 7493. 75 new. 76 new. 77 new. 7891* 79 89 supersedes 90. 80 new. 81 new. ' * EQUITY RULES IN FORCE FEBRUARY 1, 1913, COMPARED WITH THE OLD EQUITY RULES. EXPLANATORY NOTE. Matter contained in parentheses followed by a number indicates that such mat- ter U the same as the old rule of that number except where changes are indicated by note numbers above the line of the text of the rule. Thus the first part of rule 1 is identical with old rule 1 except the word "district" followed by note number "1" in the new rule was "circuit" in old rule 1. The second part of rule 1 in parentheses is the same as part of old rule 3, and the last part of rule 1 in parentheses is new, as indicated in the note below. Rule 1. District court always open for certain purposes Orders at chambers. (The district 1 court, as courts of equity shall be deemed always open for the purpose of filing 2 any pleading, of issuing and re- turning 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.) (1.) (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,) (pt. 3) (whenever the same are not grantable of course, according to the rules and practice of the court.) (New.) 1 Formerly "circuit." 2 Omits "bills, answers, and other." Drawn from old rule 1, and part of old rule 3, but last sentence of rule is new. The rule is identical with 9, Judicial Code, except omits "admiralty and" after "district courts," and before "as courts of equity." Rule 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 attendance for the purpose of receiv- ing and disposing of all motions, rules, orders and other proceedings which are grantable of course. Drawn from old rule 2 which established the first Monday in the month as rule day. Rule day is now abolished. Motion day is provided for in rule 6, post. (973) 974 APPENDIX. Rule 3. 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 appearances, shall be noted briefly and chronologically in this book on the folio assigned to the suit and shall be marked with its file number. The clerk shall also keep a book entitled "Order Book," in which shall be entered at length, in the order of their making, all orders made or passed by him as of course and also all orders made or passed by the judge in chambers. He shall also keep an "Equity Journal," in which shall be entered all orders, decrees and proceedings of the court in equity causes 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. New. Old rule 4 provided for an "Order Book." Otherwise this is a new rule. Supersedes old rule 16. Rule 4. Notice of orders. Neither the noting of an order in the Equity Docket nor its entry in the Order Book shall of itself be deemed notice to the parties or their solicitors ; and when an order is made with- out 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. New. Superseding old rule 4, which provided the entry in the Order Book was sufficient notice to the parties, except in cases where personal or other notice is specially required or directed. The part as to mailing copies is new. Rule 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; 1 for taking bills pro confesso; 2 and for other proceedings in the clerk's office which do not 3 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 EQUITY RULES. 975 suspended, or altered, or rescinded by the judge 4 upon special cause shown.) (5.) 1 Omits "for filing bills, answers, pleas, demurrers and other pleadings; for making amendments to bills and answers." 2 Omits "for filing exceptions." 8 Omits "by the rules hereinafter described." 4 Omits "of the court." Rule 6. Motion day. (Each district court shall establish regular times and places, not less than once each month, when motions requiring notice and hearing: may be made and disposed of; but the judge may at any time and place, and on sueh notice, if any, as he may consider reasonable, 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 dis- pense with the motion day during not to exceed two months in the year in any district.) (New. Substituting "motion day" for the abolished "rule day.") Rule 7. 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 1 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 ox final order or decree of the court.) (7.) 1 Omits "exigency of." Rule 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 1 court in suits at common law in actions of asaumpsit. 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 deeree shall, in all cases, prescribe the time within which the act shall be done, of which the defendant shall be bound, without further service, to take notice; and upon affidavit of the plaintiff, filed in the clerk's office, that the same has not been complied with within the prescribed time, the clerk shall issue a writ of attachment against the delinquent party, from 976 APPENDIX. which, if attached thereon, he shall not be discharged, unless upon a full compliance with the decree and the payment of all costs, or upon a special order of the court, or a judge thereof, upon motion and affi- davit, enlarging the time for the performance thereof. If the delin- quent 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.) (8. Identical.) (If a mandatory order, injunction or de- cree for the specific performance of any act or contract be not complied with, the court or a judge, besides, 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 disobedient party, and the act, when so done, shall have like effect as if done by him.) (New.) l Circuit. Rule 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 decree or order, the party prosecuting the same shall be entitled to a writ of assistance from the clerk of the court.) (Identi- cal 9.) Rule 10. Decree for deficiency in foreclosures, etc. (In suits for the foreclosure of mortgages, or the enforcement of other liens), (new) (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.) (Substantially 92.) Rule 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 obedience to any order of the court may be enforced, shall be liable to the same process for en- forcing obedience to such orders as if he were a party. 1 ) (10.) l The last three words of the old rule 10, "in the cause," are omitted. Rule 12. Issue of subpoena Time for answer. (Whenever a bill is filed, and not before, the clerk shall issue the process of subpoena there- on,) (11.) as of course, upon the application of the plaintiff, (which EQUITY BULBS. 977 shall contain the names of the parties and be returnable into the clerk's office twenty days from the issuing thereof.) (New.) (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 be- fore the twentieth day after service, excluding the day thereof; otherwise the bill may be taken pro confesso. Where there are more than one de- fendant, a writ of subpoena may, at the election of the plaintiff, be sued out separately for each defendant, or a joint subpoena against all the de- fendants.) (12.) This rule combines old rules 11 and 12; the time for answering u changed because of the abolition of the rule day. Appearance day is abolished. Rule 13. Manner of serving subpoena. (The service of all subpoenas shall be by delivering a copy thereof to the defendant personally, or by leaving a copy thereof at the dwelling house or usual place of abode of each defendant, with some adult person who is a member of or resi- dent in the family.) (Identical 13.) Rule 14. Alias subpoena. (Whenever any subpoena shall be returned not executed as to any defendant, the plaintiff shall be entitled to other 1 subpoenas 2 against such defendant, until due service is made.) (14.) 1 Changed from "another." * Omits "totie* quoties." Rule 15. Process, by whom served. (The service of all process, mesne and final, shall be by the marshal of the district, or his deputy, or by some other person specially appointed by the court or judge for that purpose, and not otherwise. In the latter case, the person serving the process shall make affidavit thereof.) (Identical 15.) Rule 16. Defendant to answer Default Decree pro confesso. (It shall be the duty of the defendant, unless the time shall be enlarged, for cause shown, by a judge of the court, 1 to file his answer 2 or other de- fense (new) to the bill in the clerk's office within the time named in the subpoena as required by rule 12. 3 In default thereof the plaintiff may, at his election, take an order as the course 4 that the bill be taken pro confesso; and thereupon the cause shall be proceeded in ex parte.) (1st pt. 18.) 1 Omita "on motion for that purpose." 2 Omits "plea, demurrer." 3 Changes "on the rule next succeeding that of his appearance.* * Omits "enter an order ... in the Order Book." Manual 62 978 APPENDIX. Rule 17. Decree pro confesso to be followed by final decree Setting aside default. (When the bill is taken pro confesso the court may pro- ceed to a 1 final decree at any time after the expiration of thirty days after the entry of the order 2 pro confesso, and such decree 3 shall be deemed absolute, unless the court shall, at the same term, set aside the same, or enlarge the time for filing the answer, upon cause shown upon motion and affidavit. 4 No such motion shall be granted, unless upon the payment of the costs of the plaintiff 5 up to that time, or such part thereof as the court shall deem reasonable, and unless the defend- ant shall undertake to file his answer within such time as the court shall direct, and submit to such other terms as the court shall direct for the purpose of speeding the cause.) (19.) 1 Adds "final." 2 Omits, "to take the bill." 3 Omits, "rendered." * Omits, "of the defendant." 6 Omits, "in the suit." Rule 18. Pleadings Technical forms abrogated. (Unless otherwise prescribed by statute or these rules the technical forms of pleadings in equity are abolished.) (New.) Rule 19. Amendments generally. (The court may at any time, in furtherance of justice, upon such terms as may be just, permit any pro- cess, proceeding, pleading or record to be amended, or material sup- plemental matter to be set forth in an amended or supplemental pleading. The court, at every stage of the proceeding, must disregard any error or defect in the proceedings which does not affect the substantial rights of the parties.) (28, 29, 60. Supersedes old rule 30.) See rule 28, post. Drawn from old rules 28, 29, and 60, which it supersedes. It also Rule 20. Further and particular statement in pleading may be re- quired, A further and better statement of the nature of the claim or defense, or further and better particulars of any matter stated in any pleading, may in any case be ordered, upon such terms, as to costs and otherwise, as may be just. New rule, drawn from order XIX, rule 7, English chancery practice. As to object of particulars, see Speeding v. Fitzpatrick, 38 C. D. 413 ; Milbank v. Milbank, 1 Ch. 285. QUITY RULES. 979 Role 21. Scandal and impertinence. (The right to except to bills, answers, and other proceedings for scandal or impertinence shall not ob- tain, 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.) (New. Abolishing the practice of taking exceptions for scandal and impertinence under old rules, 26, 27, 61. See Rule 33, post.) Rule 22. Action at law erroneously begun as suit in equity Trans- fer. (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 proceeded with, with only such alteration in the pleadings as shall be essential.) (New. Same as English practice under judicature act 1875.) Rule 23. Matters ordinarily determinate at law, when arising in suit in equity to be disposed of therein. (If in a suit in equity a matter ordinarily determinable at law arises, such matter shall be determined in that suit according to the principles applicable, without sending the case or question to the law side of the court.) (New.) Rule 24. Signature of counsel. (Every bill or other pleading shall be signed individually by one or more solicitors of record, and such signa- tures shall be considered as a certificate by each solicitor that he has read the pleading so signed by him; that upon the instructions laid be- fore him regarding the case is good ground for the same; that no scandalous matter is inserted in the pleading; and that it is not inter- posed for delay.) (24. Partly New.) Rule 25. Bill of complaint Contents. Hereafter it shall be suffi- cient 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.) (From 20.) Second, (a short and plain statement of the grounds upon which the court's jurisdiction depends.) (From 21.) Third, (a short and simple statement of the ultimate facts upon which the plaintiff asks relief, omitting any mere statement of evidence.) (New.) 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 980 APPENDIX. made parties as that they are not within the jurisdiction of the court, or cannot be made parties without ousting the jurisdiction.) (22. Partly.) Fifth, a statement of and prayer for any special relief pending the suit or .on final hearing, which may be stated and sought in alternative forms. If special relief pending the suit be desired the bill should be verified by the oath of the plaintiff, or someone having knowledge of the facts upon which such relief is asked. (From last pt. 21 and 23.) Rule 26. Joinder of causes of action. (The plaintiff may join in one bill as many causes of action, cognizable in equity, as he may have against the defendant. But when there 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 together, the court may order separate trials.) (New.) Rule 27. Stockholder's bill. (Every bill brought by one or more stock- holders in a corporation against the corporation 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 plain- tiff was a shareholder at the time of the transaction of which he com- plains, 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 plain- tiff to secure such action as he desires on the part of the managing directors or trustees, and, if necessary, of the shareholders, and the causes of his failure to obtain such action,) (94) (or the reasons for not making such effort.) (New.) Rule 28. Amendment of bill as of course. (The plaintiff may, as of course, amend his bill before the defendant has responded thereto, but if such amendment be filed after any copy has issued from the clerk's office, the plaintiff at his own cost shall furnish to the solicitor of record of each opposing party a copy of the bill as amended, unless otherwise ordered by the court or judge.) (From 28, 1st part.) After pleading filed by any defendant, plaintiff may amend only by consent of the defendant or leave of the court or judge. (From 29, 1st part.) EQUITY RULES. 981 This rule, with rule 19 above, makes several changes in the practice as to amendments. Rule 29. Defenses How presented. (Demurrers and pleas are abol- ished. Every defense in point of law arising upon the face of the bill, whether for misjoinder, nonjoinder, or insufficiency of fact to constitute a valid cause of action in equity, which might heretofore have been made by demurrer or plea, shall be made by motion to dismiss or in the answer; and every such point of law going to the whole or a material part of tho 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 de- fense heretofore presentable by plea in bar or abatement shall be made in the answer and may be separately heard and disposed of before the trial of the principal case in the discretion of the court. If the de- fendant 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 within five days thereafter or a de- cree pro confesso entered.) (New. Does away with old rules 3 to 39, inclusive.) Rule 30. Answer Contents Counterclaim. (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 avoid- ing any general denial of the averments of the bill, but specifically ad- mitting or denying or explaining the facts upon which the plaintiff relies, unless the defendant is without knowledge, in which case he shall so state, such statement operating as a denial. Averments other than of value or amount of damage, if not denied, shall be deemed confessed, except as against an infant, lunatic or other person non compos and not under guardianship, but the answer may be amended, by leave of the court or judge, upon reasonable notice, so as to put any averment in issue, when justice requires it. The answer may state as many defenses, in the alternative, regardless of consistency, as the defendant deems essential to his 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, ahall 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.) (New. Supersedes old rules 60 and 72.) 982 APPENDIX. Rule 31. Reply When required When cause at issue. (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 allowed 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 accorded to such defendants for filing a reply. In default of a reply, a decree pro confesso on the counterclaim may be entered as in default of an answer to the bill.) (New. Supersedes old rules 45 and 66.) Rule 32. Answer to amended bill. (In every case where an amend- ment to the bill shall be made after answer filed, the defendant shall put in a new or supplemental answer within ten days) (new) (after that on which the amendment or amended bill is filed, unless the time is en- larged or otherwise ordered by a judge of the court; and upon a de- fault, the like proceedings may be had as upon an omission to put in an answer.) (46. Rule day being abolished, the only change of lan- guage in old rule 46 was that defining time.) Rule 33. Testing sufficiency of defense. Exceptions for insufficiency of an answer are abolished. But if an answer set up an affirmative de- fense, set-off or counterclaim, the plaintiff may, upon five days' notice, or such further time as the court may allow, test the sufficiency of the same by motion to strike out. If found insufficient but amendable the court may allow an amendment upon terms, or strike out the matter. (New. Superseding old rules 61, 63, 64.) Rule 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 ma- terial facts occurring after his former pleading, or of which he was ignorant when it was made, including the judgment or decree of a com- petent court rendered after the commencement of the suit determining the matters in controversy or a part thereof.) (New. See old rule 57.) Rule 35. Bills of revivor and supplemental bills Form, (It shall not be necessary in any bill of revivor or supplemental bill to set forth EQUITY RULES. 983 t any of the statements in the original suit, unless the special circum- stances of the case may require it.) (Identical 58.) Rule 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 of the United States, or of any state or territory, or of the District of Columbia, or any clerk of any court of the United States, or of any territory, or of the District of Columbia, or any notary public). (59. Omitting commissioners and masters in chancery. First part of the old rule read, "Every defendant may swear to his answer. . . . ") Rule 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 express trust, a party with whom or in whose name a contract has been made for the benefit of another, or a party expressly authorized by statute, may sue in his own name without joining with him the party for whose benefit the action is brought. All persons having an interest in the subject of the action and in obtaining the relief demanded may join as plaintiffs, and any person may be made a 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 necessary or proper to a complete determination of the cause. Persons having a united interest must be joined on the same side as plaintiffs or defendants, but when anyone refuses to join, he may for such reason be made a defendant. Anyone claiming an interest in the litigation may at any time be permitted to assert his right by intervention, but the intervention shall be in subordination to, and in recognition of, the propriety of the main proceeding.) (New. Superseding 49.) Rule 38. Representatives of class. (When the question is one of com- mon or general interest to many persons constituting a class so numerous as to make it impracticable to bring them all before the court, one or more may sue or defend for the whole.) (New. Drawn from old rule 48.) Rule 39. Absence of persona who would be proper parties. (In all cases where it shall appear to the court that persons, who might other- wise be deemed 1 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 984 APPENDIX. 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.) (47.) i Omits "necessary or." See 50, Judicial Code. Rule 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 subpoena upon him, need not ap- pear and answer the bill, unless the plaintiff specially requires him to do so by the prayer, 1 but he may appear and answer at his option; and if he 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.) (54.) i Omits "of his bill." Rule 41. Suit to execute trusts of will Heir as party. (In snits 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.) (Identical 50.) Rule 42. Joint and several demands. (In all cases in which the plain- tiff has a joint and several demand against several persons, either as principals or sureties, it shall not be necessary to bring before the court as parties to a suit concerning such demand all the persons liable thereto; but the plaintiff may proceed against one or more of the persons severally liable.) (Identical 51.) Rule 43. Defect of parties Resisting objection. (Where the defend- ant shall by his answer suggest that the bill of complaint is defective for want of parties, the plaintiff may, 1 within fourteen days after answer filed, set down the cause for argument as a motion upon that objection only, 2 and where the plaintiff shall not so set down his cause, but shall proceed therewith to a hearing, notwithstanding an objection for want of parties taken by the answer, he shall not at the hearing of the cause, if the defendant's objection shall then be allowed, be entitled as of course to an order 3 to amend his bill by adding parties ; but the court 4 shall be EQUITY RULES. 985 at liberty to dismiss the bill,) (52.) (or to allow an amendment on such terms as justice may require.) (New.) i Omitted words, "shalJ be at liberty." a "And the purpose for which the same is set down shall b notified by an entry, to be made in the clerk's Order Book in form or to the effwt following (that is to say) : 'Set down on the defendant's objection for want of partiea."* 3 Omit*, "for liberty." 4 Omits, "if it thinks fit." Rule 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 1 motion or answer taken the objection and therein specified by name or description the parties to whom the objection ap- plies, the court shall 2 be at liberty to make a decree saving the rights of the absent parties.) (53.) 1 Word "motion" substituted for "plea or answer." "(if it shall think fit)" omitted. Rule 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 neces- sary orders for notice to the parties to be substituted and for the filine of such pleadings or amendments as may be necessary.) (New. Supersed- ing 56.) Rule 46. Trial Testimony usually taken in open court Rulings on objections to evidence. (In all trials in equity Che testimony of witnesses shall be taken orally in open court, except as otherwise provided by stat- ute or these rules. The court shall pass upon the admissibility of all evidence 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 character 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 un- less it be clearly of opinion that material prejudice will result from an affirmance, in which event it shall direct such further steps as justice may require.) (New. Abolishing the practice under 67.) 986 APPENDIX. Rule 47. Depositions To be taken in exceptional instances. (The court, upon application of either party, when allowed by statute, 1 or for good and exceptional cause for departing from the general rule, to be shown by affidavit, may permit the deposition of named witnesses, to be used before the court or upon a reference to a master, to be taken before an examiner or other named officer, upon the notice and term.s 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 depositions; and rebutting depositions by either party within twenty days after the time for taking original deposi- tions expires.) (New. Superseding 67, 69 and 70.) i See new rule 54, post. Rule 48. Testimony of expert witnesses in patent and trademark 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 plain- tiff within forty days after the cause is at issue ; those of the defendant within twenty days after plaintiff's time has expired ; arid rebutting affi- davits within fifteen days after the expiration of the time for filing original affidavits. Should the opposite party desire 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 unless the affiant is produced and submits to cross-examination in compliance with such direction, his affidavit shall not be used as evidence in the cause. New. The probabilities are that this rule will make little change in patent and trademark cases, and that rule 46 will not be applied to these cases. Probably testimony will be largely taken as formerly, by resort to the first clause in rule 47, allowing depositions to be taken "for good and exceptional cause." The practice since these rules went into effect bears out the foregoing statute in our first edition. Rule 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. Depositions, whether upon oral ex- amination before an examiner or like officer or otherwise, shall be taken EQUITY RULES. 987 upon questions and answers reduced to writinp, or in the form of narra- tive, and the witness shall be subject to cross and re-examination.) (New. See 67.) Rule 50. Stenographer Appointment Fees. (When deemed neces- sary by the court or officer taking testimony, a stenographer may be ap- pointed who shall take down testimony in shorthand and, if required, transcribe the same. His fee shall be fixed by the court and taxed ulti- mately as costs. The expense of taking a deposition, or the cost of a transcript, shall be advanced by the party calling the witness or order- ing the transcript.) (New.) Rule 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, but no transcript filed by such officer shall include argument or debate. The testimony of each witness, after being reduced to writing, (shall be read over to or by him, 1 and shall be signed by him in the presence of the officer: 2 Provided, That if the witness shall refuse to sign his 3 deposition so taken, the officer 4 shall sign the same, stating upon the record the reasons, if any, assigned by the witness for such refusal. 6 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. (Substantially 67, last pt.) 1 "Him," for "the witness." 2 "Officer" instead of "of the parties or counsel, or such of them as maj attend." 8 "His" instead of "the said." * "Officer" for "examiner." 5 Omitted "and the examiner may upon all examinations state any special matters to the court as he shall see fit." Rule 52. Attendance of witnesses before commissioner, master or ex- aminer. (Witnesses who live within the district, and whose testimony may be taken out of court by these rules,) (new) (may be summoned to appear before a commissioner appointed to take testimony, or before a master or examiner appointed in any cause, by subpoena in the usual form, which may be issued by the clerk in blank and filled up by the party praying the same, or by the commissioner, master, or examiner, requiring the attendance of the witnesses at the time and place specified, who shall be allowed for attendance the same compensation as for attend- 988 APPENDIX. ance in court ; and if any witness shall refuse to appear or give evidence it shall be deemed a contempt of the court, which being certified to the clerk's office by the commissioner, master, or examiner, an attachment may issue thereupon by order of the court or of any judge thereof, in the same manner as if the contempt were for not attending, or for re- fusing to give testimony in, the court.) (78, 1st part.) (In case of refusal of witnesses to attend or be sworn or to answer any question put by the commissioner, master or) (new) (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 ex- aminer of said court on written interrogatories.) (67, pt.) Rule 53. Notice of taking testimony before examiner, etc. (Notice shall be given by the respective counsel or parties to the opposite coun- sel or parties of the time and place of examination before an examiner or like officer for such reasonable time as the court or officer 1 may fix by order in each case.) (67, pt.) 1 "Court or officer" for "examiner." Rule 54. Deposition tinder Rev. Stats. 863, 865, 866, 867 Cross-ex- amination. (After a cause is at issue, depositions may be taken as pro- vided by 863, 865, 866 and 867, Revised Statutes. But if in any case no notice has been given the opposite 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), (new) (or to a cross- examination before an examiner or like officer, or a new deposition taken with notice, as the court or judge under all the circumstances shall order.) (68 and 70 superseded.) Rule 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.) (New. Superseding 69.) Rule 56. On expiration of time for depositions, case goes on trial calen- dar. (After the time has elapsed for taking and filing depositions under these rules, the case shall be placed on the trial calendar. Thereafter no further testimony by deposition shall be taken except for some strong rea- son 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 EQUITY KULES. 989 deposition has not been before taken, shall be set forth, together with the testimony which it is expected the. witness will give.) (New.) Rule 57. Continuances. (After a cause shall he placed on the trial calendar it may be passed over to another day of the same term, by consent of counsel or order of the court, but shall not be continued be- yond 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 par- ties 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 ehtercd 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.) (New.) Rule 58. Discovery Interrogatories Inspection and production of documents Admission of execution or genuineness. The plaintiff at any time after filing the bill and not later than twenty-one days after the joinder of issue, and the defendant at any time after filing his answer and not later than twenty-one days after the joinder of issue, and either party at any time thereafter by leave of the court or judge, may file interrogatories in writing for the discovery by the opposite party or parties of facts and documents material to the 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 allowinu' him to file interrogatories to be answered by any officer of the corpora- tion, and an order may be made accordingly for the examination of such officer as may appear to be proper upon such interrogatories as the court or judge shall think fit. Copies shall be filed for the use of the interrogated party and shall ho sent by the clerk to the respective solicitors of record, or to the h-i known address of the opposite party if there be no record solicitor. Interrogatories shall be answered, and the answers filed in the clerk's office, within fifteen days after they have been served, unless the time bo enlarged by the court or judge. Each interrogatory shall b answered separately and fully and the answers shall be in writing, under oath, and 990 APPENDIX. 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 pur- pose .so to do, and answers shall be deferred until the objections are de- termined, 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 interroga- tories or to effect the inspection or production of documents in the pos- session of either party and containing evidence material to the cause of action or defense of his adversary. Any party failing or refusing to comply with such an order shall be liable to attachment, and shall also be liable, if a plaintiff, to have his bill dismissed, and, if a defendant, to have his answer stricken out and be placed in the same situation as if he had failed to answer.) (See 2nd pt. 18.) / 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 docu- i ment, letter or other writing, saving all just exceptions; and if such -< admission be not made within five days after such service, the costs of I proving the document, letter or writing shall be paid by the party refus- ing or neglecting to make such admission, unless at the trial the court vshall find that the refusal or neglect was reasonable. Supersedes 40, 41, 42, 43, 44, 64 and 2d pt. 18. Drawn from order XXXI, English practice. Rule 59. Reference to master Exceptional, not usual. (Save in mat- ters 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 con- dition requires it.) (New.) (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 1 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.) (74.) i Omitting "on or before next rule day," and substituting "within twenty days." Rule 60. Proceedings before master. (Upon every such reference, it shall be the duty of the master, as soon as he reasonably can after the EQUITY RULES. 991 same is brought before him, to assign a time and place for proceedings in the same, and to give due notice thereof to each of the parties, or their solicitors; and if either party shall fail to appear at the time and place appointed, the master shall be at liberty to proceed ex partf, or, in bis 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 delay, and either party shall be at liberty to apply to the court, or a judge thereof, for an order to the master to speed the proceedings and to make his report, and to certify to the court or judge the reason for any de- lay.) (Identical 75.) Rule 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, examination, or answer shall be identified, and referred to, so as to inform the court what state of facts, account, charge, affidavit, deposition, examination, or answer were so brought in or used.) (Identical 76.) 'Rule 62. Powers of master. (The master shall regulate all the pro- ceedings 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 produc- tion of all books, papers, writings, vouchers, and other documents ap- plicable thereto; and also to examine on oath, viva voce, all witnesses produced by the parties before him, 1 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 proceed- ings in the matters before him, which he may deem necessary and proper to the justice and merits thereof and the rights of the parties.) (77.) 1 Formerly read after note number to the word "provided" as follows: "and to order the examination of other witnesses to be taken under commission to be issued upon his certificate from the clerk's office, or by deposition, according to acts of Congress or otherwise, as hereinafter proviih-d." See Foote v. Silsby, 3 Blatchf. 507; Consolidated FasU-ner Oo. v. Columbian Co., 85 Fed. 54; Bate Refrigerator Co. v. Gillette, 28 Fed. 73; White v. Rail- road Co., 79 Fed. 113; Deitch v. Staub, 115 Fed. 309; Willing w. La Bw, 82 Fed. 293; Lull v. Clark, 20 Fed. 454. 992 APPENDIX. Rule 63. Form of accounts before master. (All parties accounting before a master shall bring in their respective accounts in the form of debtor and creditor ; and any of the other parties who shall not be satis- fied with the account so brought in shall be at liberty to examine the accounting party viva voce, or upon interrogatories, 1 as the master shall direct.) (79.) 1 Omitted "in the master's office, or by deposition." Rule 64. Former deposition, etc., may be used before master. (All affidavits, depositions and documents which have been previously made, read, or used in the court upon any proceeding in any cause or matter may be used before the master.) (Identical 80.) Rule 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 interrogatories or viva voce, or in both modes, as the nature of the case may appear to him to require. The evidence upon such examination 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. ) (Identical 81.) i Rule 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 1 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 con- firmed. 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.') (83.) 1 Formerly "one month." Rule 67. Costs on exceptions to master's report. (In order to prevent exceptions to reports from being filed for frivolous causes, or for mere delay, the party whose exceptions are overruled, shall, for every excep- tion overruled, pay five dollars costs to the other party, and for every exception allowed shall be entitled to the same costs.) (84, fixing the costs at five dollars.) EQUITY RULES. 993 Rule 68. Appointment and compensation of masters. (The district' 1 courts may appoint standing masters in chancery in their respective districts a majority of all 2 the judges thereof concurring in the appoint- ment, and they may also appoint a master pro hoc vice in any particular case. The compensation to be allowed to every master 8 shall be fixed by the district 1 court, in its discretion, having regard to all the circum- stances thereof, and the compensation shall be charged upon and borne by such of the parties in the cause as the court shall direct. The pi" 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 at- tachment 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.) (82.) 1 Formerly "circuit." 2 Formerly "both." 8 Omitted "in chancery for his services in any particular ease." Rule 69. Petition for rehearing. (Every petition for a rehearing shall contain the special matter or cause on which such rehearing is ap- plied for, shall be signed by counsel, and the facts therein stated, if not apparent on the record, shall be verified by the oath of the party or by some other person. No rehearing shall be granted after the term at which the final decree of the court shall have been entered and recorded, if an appeal lies to the circuit court of appeals or the Supreme Court. But if no appeal lies, the petition may be admitted at any time befor* the end of the next term of the court, in the discretion of the court.) Identical with old rule 88, with the addition of the words, "circuit court of appeals." See Giant Powder Co. v. Cal. Powder Co., 5 Fed. 197; McLeod v. NYw Albany, 66 Fed. 378; Brook v. Railroad Co., 102 U. S. 107, 2G L. Ed. 5)1. Rule 70. Suits by or against incompetents. (Guardian ad litem to defend a suit may be appointed by the court, or by any judge thereof, for infants or other persons who are under guardianship, or otherwise in- capable of suing for themselves. All infants and other persons so in- capable may sue by their guardians, if any, or by their prochein ami; subject, however, to such orders as the court or jtydgp may din ( tor the protection of infants and other persons.) (Identical 87.) Rule 71. Form of decree. (In drawing up decrees and orders, i* the bill, nor answer, nor other pleadings, nor any part thereof, nor the Manual 08 994 APPENDIX. 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 further heard, as the case may be] at this term, and was argued by counsel ; and thereupon, upon consideration thereof, it was ordered, adjudged and decreed as follows, viz." [Here insert the decree or order.] (Identical 86.) Rule 72. Correction of clerical mistakes in orders and decrees. (Clerical mistakes in decrees or decretal orders, or errors arising from any accidental slip or omission, may, at any time before 1 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.) (85.) l Substitutes "the close of the term at which final decree is rendered" for the words, "an actual enrollment thereof." Rule 73. Preliminary injunctions and temporary restraining orders. (No preliminary injunction shall be granted without notice to the opposite party. Nor shall any temporary restraining order be granted without notice to the opposite party, unless it shall clearly appear from specific facts, shown by affidavit or by the verified bill, that immediate and ir- reparable loss or damage will result to the applicant before the matter can be heard on notice. In case a temporary restraining order shall be granted without notice, in the contingency specified, the matter shall be made returnable at the 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 party who obtained the temporary restraining order shall proceed with his application for a preliminary injunction, and if he does not do so the court shall dissolve his temporary restrain- ing order. Upon two days' notice to the party obtaining such temporary restraining order, the opposite party may appear and move the dissolution or modification of the order, and in that event the court or judge shall proceed to hear and determine the motion as expeditiously as the ends of justice may require. Every temporary restraining order shall be forthwith filed in the clerk's office.) (New. Changing the practice under 55.) Rule 74. Injunction pending appeal. (When an appeal from a final decree in an equity suit granting or dissolving an injunction is allowed EQUITY RULES. 995 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 mate an order suspending, modifying, 1 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.) (93.) i Add words following note number "or restoring." Rule 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 with proof or acknowledgment of service of a copy on the appellee or his solicitor, a precipe 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 precipe also within 10 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 es- sential 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 reproduced 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 precipe 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 to approve the statement, the time so named to be at least 10 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, com- plete, 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. 996 APPENDIX. (c) If any difference arise between tlie parties concerning directions 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.) (New.) Construction by Circuit Court of Appeals Per Curiam. Motions recently decided and others now pending involving these rules justify a formal statement of our conclusions. Rule 75 fixes no time within which the statement of evidence must be settled and filed in order to "become a part of the record for the pur- poses of the appeal." Undoubtedly, the better practice is to complete this step before claiming, or, at least, before perfecting the appeal, and if the term expires before the final statement of evidence is filed, to enter an order carrying this matter into the next term; but where appeals are required within thirty days, or even within ten days, the time may be wholly insufficient to perfect the record in this respect, and the expiration of the term may very commonly be forgotten, particularly as it has never been a matter of importance in equity appeals. It is said that the completing of this statement of evidence corresponds to the settling of a bill of exceptions at law, and the familiar rule is invoked that a purported bill of exceptions which was not settled within the trial term or pursuant to a reservation during the trial term is a nullity and will be stricken from the record. We are not satisfied that the analogy is close enough to justify the incorporation of this harsh rule into the practice pursuant to rule 75, which must have been adopted with due consideration of the existing practice by which appeals were claimed and perfected regardless of the expiration of terms; and we conclude that the trial court has power to approve and direct the filing of the statement of evidence, although the term has expired when the decree was rendered, and although no order was entered carrying the subject- matter over until the next term. The same general view leads also to the conclusion that the perfect- ing of an appeal by the approval of a bond and the signing of citation does not deprive the trial court of jurisdiction to settle the evidence. It is true that for general purposes, jurisdiction over the cause is thereby ended, and that the shaping of this statement of evidence involves the decision by the judge of disputed claims; but, upon the whole, the pro- ceeding is rather ministerial, and it sufficiently pertains to the making of the return to the appeal so that we think a statement of evidence EQUITY BULBS. 997 |p so approved and filed cannot, for that reason alone, be stricken from the record. Instances occur where rule 75 is wholly disregarded, and the return to the appeal includes the evidence in full, in accordance with the old practice, and we are asked to dismiss appeals where the ri-cord is so made up, or to strike out the statement of evidence, tlierehy leading to an affi nuance. To send the record back for correction in this respect in- volves delay and the exercise of uncertain power; while to dismiss the appeal or to strike all the evidence from the record may cause the loss of substantial rights through the blunder in practice by counsel. This drastic remedy may prove to be necessary in some cases, but we are reluctant to apply it now. The enforcement of both rules rests, primarily, upon the district judges, whose obligation we pointed out in Pittsburgh etc. R. Co. v. Glinn, 208 Fed. 989, 126 C. C. A. 77, and we have no doubt that they will observe the new practice when approving a statement of evidence or bill of exceptions; but in equity appeals, if counsel overlook the rule and follow the old practice, the matter may not come to the attention of the trial judge. If such cases occur, the clerk who makes return to the appeal should not include the evidence in full, and his due attention will usually prevent informality in this respect. In those instances, however, where the record reaches this court con- taining the evidence in full, we think general equity rule 76 provides a remedy which, at least during the transition in the general practice, will be sufficient. The reference in rule 76 to "any kindred rule" quite clearly applied to -rule 75. It is true that the offending solicitor in this situation is the solicitor for appellant, and that appellant pays, in the first instance, the entire cost of printing, so that if he is unsuccessful in this court, no disposition of the costs of printing can operate as a penalty, but if he is successful, he can be denied the recovery of such costs; and the further affirmative costs, contemplated by rule 76, might, in a proper case, be imposed upon the offending solicitors. 222 Fed. 8S4; U. S. Comp. Stats. 1916, 1536, p. 2528. Rule 76. Eecord on appeal Reduction and preparation Oosta Cor- rection 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 withhold or impose costs as the circumstances of the case and the discouragement 998 APPENDIX. of like infractions in the future may require. Costs for such an infrac- tion 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 supplemental transcript.) (New.) Rule 77. Record on appeal Agreed statement. (When the questions presented by an appeal can be determined by the appellate court with- out an examination of all the pleadings and evidence, the parties, with the approval of the district court or the judge thereof, may prepare and sign a statement of the case showing how the questions arose and were decided in the district court and setting forth so much only of the facts alleged and proved, or sought to be proved, as is essential to a decision of such questions by the appellate court. Such statement, when filed in the office of the clerk of the district court, shall be treated as supersed- ing, for the purposes of the appeal, all parts of the record other than the decree from which the appeal is taken, and, together with such de- cree, shall be copied and certified to the appellate court as the record on appeal.) (New.) Rule 78. Affirmation in lieu of oath. (Whenever under these rules an oath is or may be required to be taken, the party may, if conscien- tiously scrupulous of taking an oath, in lieu thereof make solemn affirma- tion to the truth of the facts stated by him.) (Identical 91.) Rule 79. Additional rules by district court. With the concurrence of a majority of the circuit judges for the circuit, the district courts may make any other and further rules and regulations for the practice, pro- ceedings and process, mesne and final, in their respective districts, not inconsistent with the rules hereby prescribed, 1 and from time to time alter and amend the same. 1 Omitted "in their discretion." Supersedes old rules 89 and 90. Rule 80. Computation of time Sundays and holidays. (When the time prescribed by these rules for doing any act expires on a Sunday or legal holiday, such time shall extend to and include the next succeeding day that is not a Sunday or legal holiday.) (New.) Rule 81. These rules effective February 1, 1913 Old rules abrogated. (These rules shall be in force on and after February 1, 1913, and shall EQUITY RULES. 999 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 substantial 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) (New.) Bule Abatement, defenses formerly presentable by, to be made in answer 29 Absence of persons who would be proper parties 39 Account: Matters of, reference to master 59 To be identified but not stated in master's report 61 Forms of, before master 63 Action: At law, erroneously begun as suit in equity, transfer 28 Joinder of, causes of 26 To be presented in name of real party in interest ' 37 Additional rules, by district court 79 Administrator as party 37 Admissibility of evidence offered to be passed on by court 46 Admission of execution, etc., of documents, etc 58 Advancement of causes, notice of interlocutory orders, etc 6 Affidavit: Plaintiff's, of noncompliance with decree, attachment to issue 8 To be made of service of process by person appointed therefor.... 15 Of expert witnesses in patent and trade-mark cases, provisions as to 48 Required on application for continuance 57 To be identified but not stated in master's report 61 Previously used in court, etc., may be used before master 64 On application for preliminary injunction Affirmation in lieu of oath 78 Agreed statement, record on appeal 77 Alternative defenses may be stated in answer 30 Amended bill, answer to 32 Amendments: Generally 19 Permitted of any process, pleading, record, etc 19 Of bill- As of course 28 Not after defendant's pleading filed, except, etc 2* On suggestion of defect of parties . ....'....:;. 4.Z* 43 Of pleadings on substitution of parties 45 (1001) 1002 APPENDIX. Answer: Bule Subpoena, proper process to compel * 7 Time for 12 To be filed within time named in subpoena 16 Enlarging time for filing 17 When to be filed, on motion to set aside decree pro confesso 17 Exceptions to, for scandal and impertinence, shall not obtain 21 Defenses to be presented in 29 To be filed if motion to dismiss denied 23 If not filed, decree pro confesso entered 29 Defenses formerly presentable by plea in bar or abatement, to be made in 29 What to contain 30 Amendment of, by leave, on reasonable notice 30 To omit statement of evidence 30 To avoid general denial of averments of bill 30 To specifically admit, or deny, or explain facts upon which plain- tiff relies 30 Contents, counterclaim 30 To state counterclaims 30 May state defenses in alternative 30 Cause at issue on filing of, unless, etc 31 To amended bill 32 New or supplemental, to be filed to amended bill 32 Exceptions for insufficiency of, abolished 33 If insufficient may be amended or matter stricken out 33 When defect of parties suggested, proceedings on 43 May be stricken out for failure to answer interrogations or produce documents 58 To be identified but not stated in master's report 61 Appeal: Injunction pending 74 Record on Differences as to 75 Reduction and preparation 75 Costs correction of omissions 76 Agreed statement 77 Appearance: Filed with clerk to be noted in equity docket 8 Subpoena proper process to compel 7 Appellant: To notify opposing party or solicitors, etc 75 To file predpe indicating portion of record on appeal 75 To condense evidence, etc , 75 INDEX TO EQUITY KULES. HKM Appellate conrt: Hul e Not to reverse decree unless 46 May direct further steps as justice may require 46 Appellee to file precipe indicating additional portions of record* on appeal 75 Appointment and fees of stenographers 50 Appointment and compensation of masters 68 Assistance, writ of: When to issue 7 On refusal to obey decree for delivery of possession 9 Attachment: Provisions as to 7 For noncompliance with decree " 8 Not to be discharged unless upon full compliance with decree, etc.. 8 May issue for failure to answer interrogatories or produce documents 58 Attendance of witnesses before commissioner, master, or examiner 52 Averments of bill, if not denied, deemed confessed, except, etc 30 Bill: Subpoena proper mesne process to compel appearance and answer to 7 When filed, clerk to issue subpoena 12 May be taken pro confesso if answer not filed, etc 12 Exceptions to, for scandal and impertinence, shall not obtain 21 To be signed by solicitors 24 Of complaint, contents 25 Stockholder's 27 Stockholder's, what to contain 27 Amendment of, as of course 28 Amended, answer to 32 Supplemental, what necessary in 35 Of revivor and supplemental bills, what necessary in 35 May be dismissed for failure to answer interrogatories or produce documents 58 Verification of, on application for preliminary injunction, etc 73 Bond on order suspending, etc., injunction pending appeal 74 Books: Clerk to keep equity docket, order book, equity journal S Papers, etc., production of, required by master 62 Calendar, trial case goes on, when 56 Cause, speeding, provision as to, on motion to set aside decree pro con- fesso 17 Causes: Advancement, conduct and hearing of, notice of interlocutory order* for Of action, joinder of 26 Frivolous, imposition of costs on exceptions to master's report 67 1004 APPENDIX. / Bule Certificate, signature of solicitor to pleading to be considered 24 Chambers, awarding process, commissions, orders, rules, etc., by judge at 1 Charge to t>e identified but not stated in master's report 61 Circuit court of appeals, if appeal lies to, rehearing not granted after term 69 Circuit judge may dispense with motion day if public interest permits. . 6 Citizenship, name, and residence of each party to be stated in bill.... 25 Claim, further and better statement of nature of, may be ordered 20 Claimants before master, examinable by him 65 Class, representatives of, may sue or defend 38 Clerical mistakes in orders and decrees, correction of 72 Clerk: Duties of 2 To keep Equity docket ". 3 Order book 3 Equity journal S Motions grantable of course by 5 To grant as of course, motions and applications not requiring order of court or judge 5 To issue writ of assistance on refusal to obey decree for delivery of possession 9 To issue subpoena when bill filed, and not before 12 Of court, verification of pleadings before 36 To send copies of interrogatories to solicitors of record 58 Office of Awarding of process, commissions, orders, rules, etc., by judge at 1 When open. 2 Master to return report into 66 Temporary restraining orders to be filed in i 73 Statement as to appeal to be filed in 75 Commissioner, attendance of witnesses before 52 Commissions, award of, by judge at chambers, etc 1 Compensation and appointment of masters 68 Compensation of master to be fixed by court 68 Competency, etc., of questions asked before examiner not to be decided by him 51 Computation of time Sundays and holidays 80 Conduct of causes, notice of interlocutory orders for 6 Contempt for noncompliance with mandatory order, etc 8 Continuances, provisions as to 57 INDEX TO EQUITY RULES. 1 r Copv of prcctpo: Ro , e Indicating portions of record on appeal Service of, indicating, etc Corporate officer to sign interrogatories under oath 58 Corporations: When interrogatories to be answered by officer of 68 Stockholder's bill against , Correction: Clerical mistakes in orders and decrees 72 Omissions in transcript on appeal 76 Costs: Payment of, and full compliance with decree before a discharge of attachment 8 Of plaintiff to be paid before court will set aside decree pro confctto, etc 17 Terms as to, when further and particular statement in pleading ft* quired 20 To nominal parties 40 Stenographer's fees to be taxed as 50 Of incompetent, etc., depositions to be dealt with by court 51 On continuances, provisions as to 57 On proving .execution or genuineness of document, etc 58 On reference to master 59 On exception to master's report 67 May be imposed upon offending solicitors 76 Imposition of, for infraction of rule as to record on appeal 76 Counsel: Signature of 24 To give notice of taking testimony before examiner, etc 53 Consent of, to continuances, provisions as to 57 To sign petition for rehearing 69 , Counterclaim: To be stated in answer 30 To be replied to 81 In default of reply to, decree pro oonfctto entered 81 Court: On motion or own initiative, may order redundant, impertinent, or scandalous matter stricken out 21 Testimony usually to be taken in, at trial 46 To deal with cost of incompetent, etc., depositions 51 Contempt of, by witness refusing to appear before commi**ioner, master, or examiner t 52 1006 APPENDIX. Court: Rule May appoint standing masters in chancery 68 Provisions as to approval by, of appellant's statement, etc., on ap- peal 75 District, additional rules by 79 Creditor making claim before master examinable by him 65 Cross bill counterclaim to be stated in answer, and not by 30 Cross-examination of expert witnesses in patent and trade-mark cases. . 48 Cross-examination of witness where no notice of deposition given 54 Damage: Averments in bill as to 30 To be shown on application for preliminary injunction 73 Death of party, revivor 45 Decrees of court to be entered in equity journal , . . 3 Decrees: Process to issue to compel obedience to 7 Compelling obedience to, writ of sequestration 8 Discharge of attachment upon compliance with 8 For specific performance, provision as to 8 For performance of specific act, attachment when 8 Solely for payment of money, writ of execution on 8 Final, enforcement of 8 For delivery of possession, writ of assistance on refusal to obey .... 9 For deficiency in foreclosure, etc 10 Pro confesso On default in answer 16 When may be set aside 17 To be followed by final decree 17 Final, following decree pro confesso Pro confesso Entered, if answer not filed, etc 29 In default of reply to counterclaim 31 Not to be reversed unless material prejudice would result 46 Form of 71 Shall not recite pleadings 71 Correction of clerical mistakes in 72 Final, appeals from in injunction suits 74 To be sent up with agreed statement on appeal 77 Deeds, etc., decree for delivering up, attachment in 8 Default: To answer, bill taken pro confesso -. 16 Of reply to counterclaim, decree pro confesso 31 In answer to amended bill, proceedings on 32 INDEX TO EQUITY BULKS. 1007 Defect: Bnj, Court t disregard IB proceeding not affecting substantial rights... 19 Of parties Resisting objection 4.1 Tardy objection to 44 Defendant: Subpoena proper process to compel appearance and answer of 7 If not found, writ of sequestration proper process to issue, etc.... 7 To take notice of certain decrees 8 Required to file answer on or before twentieth day. after service of subpoena 12 Service of subpoena to be upon ^ 1 :< To answer within time named in -subpoena 16 Person refusing to join as plaintiff or defendant may be made de- fendant 17 Time within which to take deposition for. . . '. 47 Defense: Further and better statement of nature of, may be ordered 20 How presented 29 What to be heard separately and disposed of before trial, etc 29 Testing sufficiency of S3 Deficiency in foreclosure, etc., decree for .- . 10 Delay: Signature of solicitor to pleadings certificate that pleadings not in- terposed for 24 Master to certify reason for any to court 60 Imposition of costs for, on exceptions to master's report 67 Delivery of possession, writ of assistance to enforce 7 Demands, joint and several Demurrers abolished 2* Depositions : To be taken in exceptional instances 47 Time within which to be taken 47 Taken before examiners, et 49 Expense of taking to be advanced by party calling witnesses 50 Court to deal with costs of incompetent, etc 51 Under R. S. 863, 865, 866, 867 cross-examination 54 Deemed published when filed 55 On expiration of time for, case goes on trial calendar 56 To be identified but not set forth in master's report 61 May be taken by master 62 Etc., former, may be used before master 64 Previously used in court may be used before master 64 1008 APPENDIX. t Rule Differences concerning directions, as to contents of record on appeal, pro- visions as to 75 Disability of any party to be stated in bill 25 Discovery, interrogatories for, when to be filed 58 Dismiss, motion to, setting down for hearing 29 Dismissal of causes continued, if not reinstated 57 District courts: Always open for certain purposes 1 To establish times and places when motions may be made and dis- posed of 6 Additional rules by 79 District judge may make, direct, and award process, commissions, orders, rules, etc 1 Documents : Inspection and production of 58 Court may enforce inspection and production of 58 Interrogatories for discovery of, when to be filed 58 Execution or genuineness of, call for admission of 58 Identified but not set forth in master's report 61 Production of, required by master .^ 62 Previously used in court may be used before master 64 Dwelling house, service of subpoena by leaving copy at 13 Equity docket: Clerk to keep 3 Index of 3 Noting of order in, not notice 4 Day of return of master's report to be entered in 66 Equity journal: Clerk to keep 3 Index of 3 Equity, suit in: Action at law erroneously begun' as transfer 22 Matters ordinarily detenninable at law when arising in, to be dis- posed of therein 23 Error or defect in proceedings, court to disregard when not affecting sub- stantial rights 19 Evidence : Mere statement of, to be omitted from bill. 25 Admissibility of, to be passed on by court 46 Offered and excluded, proceedings on 46 Affidavits of expert witnesses in patent and trade-mark cases, when not to be used as . . 48 INDEX TO EQUITY RULES. 1009 Evidence: B ] e Taken before examiners to b returned U eourt 49 Taken Before examiners, provisions as to 51 Objections to, taken before examiner, etc 51 Court or judge may enforce answers to interrogatories and production of documents containing 58 Master may direct mode of proving matters before him 62 Before master on examination to be taken down 65 How to be stated in record 75 Ex parte, cause to btf proceeded with after decree pro eonfesto 16 Examination to be identified but not stated in master's report 61 Examiners: Evidence taken before To be returned to eourt 49 Provisions as to 51 Not to decide on competency, materiality, or relevancy of questions 51 Attendance of witnesses before 52 Notice of taking testimony before, etc. 53 Cross-examination of witness before 54 Exceptions : For insufficiency of answer abolished S3 To evidence offered and excluded, provisions as to 46 To master's report 66 Costs on 07 Execution : Writ of, provisions as to 8 Admission of, of documents, etc 53 Executor as party 37 Expert witnesses, testimony of, in patent and trade- mark eases 48 Facts: Ultimate statement of, upon which relief asked, to be stated in bill 25 Insufficiency of, as defense, how presented 29 Material, may be alleged in supplemental pleading 34 Not to be stated in master's report 61 Fees of stenographer 50 File number, each suit and all papers, process, etc., to be marked with, and noted on equity docket Filing of deposition deemed publication 55 Final hearing, points of law may be disposed of before 29 Final process: Issue and return of To be served by marshal, deputy, etc 15 Manual 64 1010 APPENDIX. Rule Foreclosure of mortgages, etc., decree for balance due 10 Form of accounts before master 63 Form of decree -. 71 Former depositions, etc., may be used before master 64 Forms : Technical, of pleadings abrogated 18 Alternative prayer for specific relief may be in 25 Genuineness of documents, admission of, etc 58 Guardian: As party 37 May sue for infants 70 Ad litem, may be appointed by court or judge, etc 70 Hearing: On merits making and directing interlocutory motions, orders, rules, etc., preparatory to 1 Of causes, notice of interlocutory orders for 6 Final, points of law may be disposed of before 29 On exceptions to report of master 66 Heir as party to suits to execute trusts of will 41 Holidays : Legal, clerk's office not open 2 Computation of time 80 Impertinence, scandal, exceptions to bills, answers, etc., for, shall not obtain 21 Incompetents, suits by or against 70 Indices of equity docket, order book, and equity journal, clerk to keep 3 Infants : Nothing to be taken against as confessed 30 Nominal parties in suits not against 40 May sue by guardian or by prochein ami 70 Guardians ad litem may be appointed to defend suits against 70 Injunction : For specific performance, provision as to 8 Preliminary, and temporary restraining orders 73 Pending appeal '. 74 Insufficiency of fact, defense of, how presented 29 Interlocutory motions, orders, rules, etc., making and directing 1 Interrogatories : Written, practice as to, to be followed in case of refusal of witness before master, examiner, etc 52 When to be filed . 58 INDEX TO EQUITY BULKS. 1011 Interrogatories: Bale When to be answered, etc 58 Court may enforce answers to 58 To be answered separately and fully, in writing, under oath, and signed 58 Objections to, provisions as to 58 Copies to be sent by clerk to solicitors of record 58 Examination of accounting party before master OB 63 Claimants before master ezaminable on it Intervention, when allowed 37 Issue : Of subpoena 12 Cause at, upon filing of answer, except, etc 31 Joinder of causes of action 26 .Joinder of parties, provision as to 87 Joint and several demands 42 Judge: District, may make, direct, and award process, commissions, orders, rules, etc. 1 In chambers, orders by, to be entered in order book 3 May suspend, alter, or rescind motion granted as of course by clerk 5 On notice, if any, may make interlocutory orders, etc 6 Verification of pleadings before 36 Jurisdiction, ground on which depends to be stated in bill 25 Justice, convenient administration of, joinder of causes of action to pro- mote 26 Land, decree for conveyance of, attachment in 8 Law: Action erroneously begun as suit in equity transfer 22 Matters ordinarily detenu i nable at, when arising in suit in equity, to be disposed of therein 23 Points of, may be disposed of before final hearing 29 Letter, call for admission of genuineness of, etc 58 Loss, immediate and irreparable, to be shown on application for temporary restraining order 73 Lunatic, nothing to be taken against as confessed SO Marshal, deputy, etc., to serve all process, except 15 Master : Attendance of witnesses before 52 Reference to, exceptional not usual 59 Proceedings before .- ' 60 Duties of *6 May proceed ex parte when 60 1012 APPENDIX. Master: Knle May adjourn examination, etc., when..... 60 To proceed with reasonable diligence 60 Reports of documents to be identified but not set forth 61 Powers of i . . 62 To regulate all proceedings before him 62 May require production of all books, papers, etc 62 Form of accounts before 63 Former depositions, etc., may be used before 64 Claimants before, examinable by him 65 Appointment and compensation of 68 Entitled to attachment for his compensation, when 68 Not to retain report as security for compensation 68 Pro hoc vice, in particular cases, may be appointed by court 68 In chancery, standing, may be appointed by the court 68 Master's report: Return of exceptions hearing 66 Costs on exception to 67 Not to be recited in decree or order 71 Material supplemental matter may be set forth in amended pleadings. ... 19 Materiality of questions not to be decided by examiner 51 Matter : Further and better particulars of, in any pleading may be ordered 20 New or affirmative, in answer, deemed denied by plaintiff 31 Matters ordinarily determinable at law, when arising in suit in equity, to be disposed of therein 23 Merits, hearing on making and directing interlocutory motions, orders, rules, etc., preparatory to 1 Mesne process: Issuing and returning 1 Subpoena shall constitute proper 7 To be served by marshal, deputy, etc 15 Misjoinder, defense of, how presented 29 Mistakes, clerical, correction of, in orders and decrees .- 72 Money, payment of, final process to execute decree for 8 Mortgages, foreclosure of, decree for balance due 10 Motions : Interlocutory, making and directing 1 When may be made 1 Etc., grantable of course, received and disposed of by clerk 2 28 412 594 787 524 r. 829 413 1562 788 453 r. 837 411 459 788 520 r. 838 1704 594 788 524 r. 840 412 596 793 33r, 29 r. 848 418 597 794 28 r. 848 849 1562 '795 28 r. 849 419 230 796 28 r. 851 422 270 (8t)0) 275 Jnd. Code 425 620 r. ('SOI) 275 " a 853 427 521 r. (802) 277 " a 854 428 1202 (803) 279 " a S55 426 863 (804) 280 " " 857 408 460 r. (805) 281 " " 858 57 r. 571 r. (80(1) 275 " 858 pt. 962 270 r. (80S) 282 " ii 858 380 1332 (809) 283 " M 658 460 r. 1333 (810) 284 " II 858 270 r. 1334 (811)285 " 1 300 837 1335 (812) 286 " 4 861 580 r. 1336 (813) 275 " 861 270 1337 (S14) 276 " Mi 1 1338 f815) 276 " 861 - 1339 '816) 276 " 862 pt. 1340 1341 (817) 275 " (817) 276 " 863 863-870 880 r. 1342 (819) 287 " 863 1040 r. 83 Manual 85 1026 APPENDIX. R. S. Sec. Our Sec. R. S. Sec. 863 1041 r. 886 pt. 863 383, 460 r. 886 pt. 863 pt. 378 887 863-870 370 888 863 671 r. 889 863 pt. 377 890 863 pt. 375 891 863 376 r. 892 863 372 r. 893 863 1020 r. 894 864 383 r. 895 864 377 r. 896 864 379 897 865 pt. 377 898 865 383 r. 899 865 1020 r. 900 865 1040 r. 901 865 1041 r. 902 865 671 r. 903 865 pt. 375 904 865 372 r. 905 866 372 r. 905 866 384 r. 906 866 372 r. 907 866 1041 r. 908 866 1020r. 909 866 671 r. 910 866 460 r. 911 866 580 r. 911 867 388 r. 911 8617 1041 911 867 1040 r. 912 867 1020 r. 912 867 r. 671 r. 912 867 372 r. 913 868 386 r: 913 868 385 913 869 387 914 869 385 r. 914 869 460 r. 914 pt. 870 385 r. 914 870 460 r. 914 874 420 914 875 393 914 r. 876 343 914 876 460 914 877 460 r. 914 877 344 914 878 pt. 405 915 878 345 915 879 340 915 880 331 915 881 342 915 882 286 916 883 287 916 884 288 916 885 289 916 Our Sec. R. S. Sec. Our Se<\ 290 916 621 r. 291 917 8r. 293 918 470 294 918 461 r. 295 918 462 r. 296 918 454 r. 297 918 8r. 300 918 F. S. A. 57 r. 301 918 6'22 r. 302 918 620 r. 277 918 " 546 r, 304 918 540 r, 305 918 ' 450 306 918' pt. 542 280 919 ' 1703 281 920 ' 457 r. 282 920 ' 570 283 921 407 284 922 ' 799 285 923 1706 270 924 495 274 925 496 275 926 497 276 927 498 271 928 499 308 929 500 310 930 501 793 r. 931 502 520 r. 932 503 522 933 452 r. 453 r. 933 494 r. 520 r. 934 1708 453 r. 935 510 522 936 511 799 937 512 8r. 938 1707 58 r. 939 1712 450 942 1273 7r. 943 1274 622 944 1275 620 945 1262 r. 611 r. 945 35 r. 560 r. 946 1276 470 r. 947 1277 520 r. 948 520 r. 462 r. 948 452 r. 525 r. 948 523 541 948 455i. 480 948 r. 489 452 r. 948 487 504 r. 949 1702 522 r. 951 1709 57 r. 952 1710 631 953 615 57 r. 953 597 r. 463 r. 953 596 T. 452 r. 954 760 r. TABLE OP REVISED STATUTES. R. S. Seo. 954 954 Our Ser. 544 r 629 R. S. Seo. 976 977 Our 8w 436 407 R. 8. Seo. 1011 1013 Our Sec. 1686 1674 954 453 r. 978 407 1014 1260 954 452 979 432 1015 35 r. 954 620 r. 980 411 1015 1263 954 612 r. 981 423 1016 35 r. 954 646 r. 982 410 1018 1264 954 540 r. 983 402 1017 1265 954 520 r. 984 403 1018 1266 954 pt 629 985 463 r. 1019 1267 954 462 r. 985 635 1020 1268 954 455 r. 985 621 r. 1021 1224 954 523 986 ' 463 r. 1022 1360 955 561 986 635 1023 1212 955 456 r. 986 621 r. 1024 1243 955 560 r. 987 633 1025 1244 956 456 r. 987 463 r. 1026 1245 956 562 987 621 r. 1027 1271 956 560 r. 988 634 1028 1269 957 563 988 463 r. 1029 1270 957 456 r. 988 621 r. 1030 1272 957 560 r. 989 621 r. 1031 1367 958 564 989 632 1032 186* 958 456 r. 989 463 r. 1033 1363 958 560 r. 990 463 r. 1034 1364 959 565 990 621 r. 1035 138t) 959 560 r. 990 636 1036 1381 959 456 r. 990 57 r. 1041 1384 960 456 r. 991 (537 1042 1385 96J 560 r. 991 57 r. 1042 35 r. 960 566 991 463 r. 1043 231 961 620 r. 991 621 r. 1044 2.12 961 542 993 644 1045 233 961 540 r. 993 463 r. 1046 234 962 620 r. 993 57 r. 1047 238 962 624 993 621 r. (1049) 136 Jud. Code 963 623 993 last pt. 429 (1050) 137 u 963 620 r. 994 r. 463 (1051) 127 " 964 1711 994 642 (1052) 138 " u 965 623 994 21r. (1053) 139 " m 965 620 r. 995 1713 nnr.n 140 u 966 r. 4 F. S A. 604, 462 996 1714 (1055) 141 " 966 623 997 1661 (1056) 142 " M 966 57 r. 998 1668 (1057) 143 " M 966 620 r. 998 1663 (1057) 187 " M 967 4F.S. A.606 627 999 1663 (1058) 144 " II 967 r. 4G2 999 1600 (10:59) 145 " II 967 620 r. 1000 1664 (1059) 162 " II 967 57 r. 1001 1665 (1060) 147 " M 968 407 1003 1609 i P; " II 969 430 1003 1656 (1062) 147 " II 970 431 1004 1660 (1063) 148 " M 971 433 1005 1659 (1064) 149 " il 972 437 1007 1666 (1065) 150 " ii 973 438 1010 1687 (1066) ir,3 " " 974 434 1011 459 r. (1067) 154 " 11 975 435 1011 594 r. (1068) 155 " II 1028 APPENDIX. R. S. Sec. Our Sec. R. S. Sec. (1069) 156 Jud. Code 3470 (1070) 157 " " 3470 (1071) 158 " " 3470 (1072) 159 " " 3471 (1073) 160 " u 3471 (1074) 161 " u 3471 (1075) 163 " u 3472 (1076) 164 " II 3472 (1077) 165 " u 3472 (1078) 186 " II 3494 (1079) 3636 (1080) 166 " 3637 (1081) 167 ' II 3921 (1082) 168 II ?990 (1083) 169 ' II 3991 (1084) 170 ' II 4069 (1085) 171 II 4070 (1086) 172 ' II 4071-78 (1087) 174 " II 4072 (1088) 175 " 11 4073 1089 r. 1439 4074 (1091) 177 Jud. Code 4074 (1092) 178 " " 4079 r. (1093) 179 " " 4079 1778 3 5 r. 574 4080 1981 pt. 249 4080 19S2r. 35 4081 1089 1439 r. 4081 1986 pt. 414 4546 1994 r. 148 4651 2469 297 4906 2470 297 4906 r. 3066 1705 4907 3224 1118 4908 r. 3227 246 4908 3228 244 4920 3462 35 r. Our Sec. R, R. S*c. Our Sec. 463 r. 4921 pt. 250 643 4922 438 621 r. 4968 241 638 5237 1116 621 r. 5242 1117 463 r. 5242 pt. 480 621 r. 5242 452 463 r. 5261 1432 r. 639 5270 1st pt. 1300 242 5270 pt. 1301 1119 5270 last pt. 1308 1120 527 Opt. 1302 457 r. 5270 pt. 1303 1716 5270 pt. 1304 1717 5270 35 r. 99 5271 1307 100 5272 1st. pt. 1308 394 5272 last pt. 1309 395 5272 35 r. 346 5273 1310 348 5274 1311 421 5275 131?. 106 5276 1313 108 5277 1314 107 5278 1315 109 5279 1316 108 5292 1400 110 5293 1401 35 r. 5294 1402 424 5295 334 351 5296 1385 460 5396 1240 353 5397 . 1241 460 5542 1386 352 5546 1387 1052 5549 1389 TABLE OF JUDICIAL CODE ACTIONS. 1029 TABLE OF JUDICIAL CODE SECTIONS. The letter "r" means the section of the text refers or cites the Judicial Code section, otherwise the same is quoted in full or part. If in part, the abbreviation "pt." is used. Where the Judicial Code section is not quoted in our text, it is nevertheless set out in full and annotated in the Appendix, referred to as "App." Jud. Code Our Sec. Jud. Code Our Sec. Jnd. Code Our SM. 1 20r. 34 190r, 206. 74 App. 2 App. 35 213. 75 3 28r. 36 216. 76 4 28r. 37 160, 190r, 204, 77 5 32r. 215, 471, 573. 78 6 54r. 33 2l7. 79 7 Sir. 39 214. 80 8 Sir, 456, 560. 40 75, 1206. 81 9 52r, 53r. 41 75, 1206r. 82 10 Sir. 42 75, 1206r. 83 11 Sir. 43 76, 1206r. 84 12 Sir, 456, 560. 44 77. 85 13 22r. 45 76, 1206r. 86 14 22r. 46 78, 1206r. 87 15 22r. 47 79, 1206r. 88 16 22r. 48 71. 89 17 22r. 49 73. 90 18 23r, 24r. 50 74, 451r. 91 19 26r. 51 60r, 61, 127r, 483, 92 20 25r. 158. 93 21 25r. 52 60r, 62. 94 22 51r, 456, 560 53 60r, 63. 95 23 21r. 54 60r, 64. 96 24 7r, 90, 91r, 93r, 55 60r, 65, 451. 97 94, 97, 101, 56 60, 67. 98 121, 123, 125, 57 66. 453, 483, 99 128r, 147, 170, 520, 525, 526. 100 171, 173, 451, 58 68. 101 691, 1200. 59 69. 102 25 90r, 102, 104. 60 70, 462. 490, 103 26 90r, 105. 620, 628, 1144, 104 27 90r, 106. 1147. 105 28 90r, 126, 171, 61 35r. 106 190, 191, 192, 62 54r. 107 193, 194, 200, 63 54r. 108 201, 202, 203, 64 90r, 110, 111. 109 204. 65 1081. 110 29 190r, 197, 198, 66 121, 1083. 111 199, 195. 67 32. 112 30 93r, 170. 172 68 27r, 1080. 113 190r, 205. 69 App. 114 31 32 121, 190r, 207. 208. 70 71 M II 115 116 1470. 33 209, 210, 211 72 II 117 1471. 212. 73 II 118 147L 1030 APPENDIX. Jud. Code Our Sac. Jud. Code Our Sec. Jud. Code Our Sec. 119 1471. 176 143 8r. 240 1501r, 1677, 120 1471. 177 1437r. 1683r. 121 1471. 178 1439T. 241 1559, 1655. 122 1473. 179 1439r. 242 1560. 123 1471. 180 1432r. 243 1560. 124 1471. 181 1440r. 244 App. 125 1471. 182 1440r. 246 1680, 1561r. 126 1472. 183 1439r. 247 1679, 1561r, 128 1383, ISOOr, 1501. 184 1434r. 1505r. 129 1502, 1654. 185 1434r. 248 1681, 1561r.' 130 1503. 186 1435r. 249 1561r. 131 1504. 187 1439r. 250 1682r, 1561r, 132 1510, 1653. 188 1452r. 251 1683. 134 1505, 1684. 189 1453r. 252 1561r. 135 1506. 190 1452r. 255 1532. 136 1430r. 191 1452r. 256 90r, 90, 91r, 92, 137 1430r. 192 1452r. 93r. 1200. 138 1431r. 193 1452,r! 261 1113. 139 143 Or. 194 1452r. 262 1114, 453r, 1100, 140 1430r. 195 1454r. 1562, 1331. 141 1430r. 196 1454r. 263 1102. 142 1430r. 197 1454r. 264 1101. 143 1439r. 198 1455r. 265 1108'. 144 143 Or. 19'9 145 6r. 266 1110, 1111, 1109, 145 1432r. 215 1530. 359. 146 1439r. 216 1530. 267 863. 147 143 7r. 217 1530. 268 347, 1115, 460. 148 1432r. 218 1530. 269 462, 614. 149 1432r. 219 1530. 270 35r, 1262. 150 1439r. 220 28r 1530. 271 105, 107, 90r. 151 1432r. 221 1530. 35r. 152 1438T. 224 1530. 274a 472. 153 1432r. 2.25 1531r. 274b 540r, 545. 154 1432r. 226 1531r. 274c 161. 155 143 2r. 227 1531r. 275 584. 156 243, 1433r. 228 153 Ir. 276 589. 157 1434r. 229 1531r. 277 588. 158 1434r. 2.30 1533. 278 585. 159 1434r. 231 1533. 279 590. 160 1434r. 232 1533. 280 591. 161 1434r. 233 1534. 281 592. 162 1432r. 234 1534, 1562r. 282 1221. 163 1434r. 235 1534. 283 1222. 164 1434r. 237 131r, 1561r, 284 1220. 165 1434T. 1600r, 1600, 285 1223. 166 1434r. 1601, 1608. 286 587 r. 167 1434r. 238 1553r, 1501r. 287 593, 1366. 168 1434r. 1383 1554r. 288 1368. 169 1435r. 1555r, 1558r, 291 406r, 459r, 594. 170 1434r. 1551. 292 1700. 171 1438r. 239 1683r, 1677, 293 1700. 172 1560r, 1434r. 1678, 1508, 294 1700. 173 1434r. 1501r, 1684r, 295 1700. 174 1436r. 1559r. 297 1691r. 175 1436r. TABLE OF CRIMINAL CUUt SECTIONS. 1U31 TABLE OF CRIMINAL CODE SECTIONS. r. Code Oar Sec. 44 83. 125 332. 126 332r. 272 1201. 281 236 pt. Cr. Code Our Sec. 289 1203, 1204r. 309 75, 1206r. 310 75, 1201, 1206r. 311 1201. 323 1403. Cr. Code Our 8. 224 1404. 140"). 326 1205. 3'27 1407. 330 1382. 1032 APPENDIX. CHRONOLOGICAL TABLE OF ACTS OF CON- GRESS OTHER THAN REVISED STATUTES AND CODE SECTIONS, AND AMENDATORY ACTS. ACTS OF CONGRESS. Acts Our Sec. Acts Our Sic. 1872 June 1,C. 255 1659 1892 July 20, C. 209 520 1874 June 1, C. 200 545 1892 July 20, C. 209 1, 2, 3, 4 404 1874 June 20, C. 300 8 279 1892 July 20, C. 209 3 528 1874 June 22, C. 391 5 572 1892 July 26, C. 256 3 pt. 299 1874 June 22, C. 391 8' 333 1892- Aug. 3, C. 361 r. 425 1874 June 22, C. 391 21 240 1893 Mch. 3, 0.225 1 621 1874 June 22, C. 391 22 239 1893 Mch. 3, C. 225 1 640 1875 Feb. 22, C. 95 2 28 r. 1893 Mch. 3,0.225 1,2,3, 463 1875 Feb. 22, C. 95 3 28 r. 1893 Mch. 3, C. 225 2 621 1875 Feb. 22, C. 95 5-6r 28 r. 1893 Mch. 3, C. 225 2 640 1875 Meh. 1, C. 1144pt. 586 1893 Mch. 3, C. 225 3 621 1875 Mch. 3, 9 1691 1893 Mch. 3, C. 225 3 641 1876 June 30, C. 156 2 252 1894 July 31, C. 174 17 292 1876 Aug. 15, C. 304 376 1894 Aug. 18, 0.301 1261 1878 Meh. 16, C. 37 338 1895 Jan. 12, C. 23 73 pt. 278 1882 Aug. 3, C. 378 1 1305 1895 Jan. 25,0.45 292 1882 Aug. 3, C. 378 3 1306 1896 Mch. 2, C. 39 1 246 1882 Aug. 3, C. 378 4 417 1896 May 28, C. 252 6 413 1882 Aug. 3, C. 378 5-6 1307 1896 May 28, C. 252 6 411 1882 July 5, C. 225 1 235 1896 May 28, C. 252 7 411 1884 July 5, C. 225 235 1896 May 28, C. 252 8 34 1887 Feb. 4,0.1041 8 J 7 ^8r. 1896 May 28, C. 252 9 1896 May 28, C. 252 10 413 30 1888 Aug. 1, C 729 462 1896 May 28, C. 252 11 31 1888 Aug. 1, C. 729 1 pt. 627 1896 May 28, C. 252 19 35 1888 Aug. 1, C. 729 1 pt. 625 1896 May 28, C. 252 20 pt. 1080 1888 Aug. 1, C. 729 1-2 620 1896 May 28, C. 252 21 pt. 415 1888 Aug. 1, C. 729 2 626 1896 May 28, C. 252 24 34 r. 1889 Mar. 2, C. 382 253, 1383 1897 Jan. 15, C. 29 2 1405 1890 Apr. 9, C. 73 3 272 1897 Jan. 15, C. 29 3 1404 1890 July 2, C. 647 5 pt. 1145 1897 Mch. 3,0.395 982 1891 Mch. 3, C. 529 5 1388 1898 May 17, C. 339 2 381 1891 Mch. 3, C. 517 4 6 pt. 1655 1898 June 24, 495 29 i. 1891 Mch. 3,0.529 7 1389 1898 July 1,0. 541 24-25 1503 1891 Mch. 3, C. 561 8 pt. 245 375 1891 Mch. 3, C. 529 9 1390 ' 1900 May 27, C. 200 1 350 1891 Meh. 3, C. 517 11 pt. 1657 1901 Feb. 6, C. 217 2 380 1891 Mch. 3, C. 517 11 pt. 1653 1901 Mch. 3, C. 845 2 416 1891 Mch. 3, C. 517 11 pt. 1659 1902 May 31, C. 946 1 247 1892 .Mch. 9, C. 14 389 1902 x June 21, 0.1138 425 1892 Mch. 9, C. 14 r. 580 1903 Feb. 14, C. 552 1 pt. 307 ]892 Mch. 9,0.14 370 19(13 Feb. 19, C. 708 1 S'O 1892 Mch. 9,0.14 460 1903 Feb. 19, C. 708 3 pt. 357 1892 Julv 20, C. 209 1668 1904 Mch. 22, 0.748 297 CHRONOLOGICAL TABLE OP ACTS OF CONGRESS. 1033 ACTS OF CONGBES8 Continued. Acts 1904 Apr. 19, C. 1398 1905 Feb. 20, C. 592 11 pt. 1906 June 29, C. 3591 3 1906 June 29, C. 3592 24 1906 June 30, C. 3920 1906 June 30, 1907 Mch. 2, C. 2534 3-4 1907 Mch. 4,0.2939553-4 1908 Apr. 22, C. 149 6 1908 May 27, C. 200 5 1 1909 Mch. 4. C. 320540 1909 Mch. 4, C. 320 5 241 1910 AprU 26, C. 191 1910 June 10, C. 283 5 3 1910 June 18, C. 309 16 1910 June 23, C. 37355 1-5 1910 June 23, C. 360 5 5 pt. 1910 June 25, 1910 June 25, C. 423 1910 June 25, C. 395 5 5 1911 Feb. 13, C. 43 1911 Feb. 13, C. 47 1911 Feb. 13, C. 47 1911 Feb. 17, C. 103 5 8 pt. 1911 Mch. 3, C. 224 1911 Dec. 21,0.4 1912 Aug. 9, C. 278 5 1912 Aug. 9, C. 278 1912 Aug. 17, C. 300 1912 Aug. 24, C. 370 5 3-4 1912 Aug. 24, C. 390 5 9 pt. 1912 Aug. 24, C. 390 5 9 pt. 1913 Jan. 23, C. 9 1913 Jan. 23, C. 9 1913 Feb. 5, C. 28 1913 Feb. 13, C. 50 1913 Feb. 13, C. 50 5 2 1913 Feb. 26, 0. 79 1913 Mch. 1, C. 92 last pt. 1913 Mch. 3,C. 114 1913 Mch. 4, C. 160 1913 July 15, C. 6 5 5-pt. 1913 July 15, C. 6 5 8 1913 July 15, C. 6 5 9 1913 Oct. 3, C. 16 5 3 pt. sub. 1913 Oct. 22 1913 Oct. 22, C. 32 pt. 1913 Oct. 22, C. 32 pt. 1914 Jan. 20, C. 48 . 1914 Aug. l.C. 223 1916 Feb. 23, C. Our Sec. Act. or SM. 298 1916 Mch. 4, C. 167 109 303 1914 Oct. 15, C. 323, Clayton 311 Act, 55 17. 1\ P.'. "20. 237 1915 Oct. 15, 1915 C. 303, 335 5521, 9.2, 23,24,25,26. 1504 1915 Act Jan. 28, C. 22, 55 2-4, 148 55 6, 7; fi 5. 81 1915 Jan. 28, C. 22 5 6 1684 248 1915 Jan. 28, C. 22 5 2 1561 350 1915 Jan. 28, C. 22555-6 122 437 191o Mi-h. 3, C. 9052746 5 r. 251 r. 19 IT, Mch. 3, C. 90 5 2746 9 r. 98 1916 May 4, C. 109, 39 Stats. 61, 248 101 1916 July 1,C. 209 82 1916 Sept. 6, C. 44854 16'J:: 1715 1916 Srj.t. 6, C. 448 5 6 1562 102 1916 Sept. 6, C. 44856 1602 887 1916 Sept. 8, C. 463 5 20 6336 1432 r. 103 1916 Sept. 8, C. 463 5 20 463 1917 Feb. 14, C. 53 5 17 pt. 313 359 1917 K.-b. 14, C. 535 18 314 1672 1917 Feb. 14, C. 53 5 20 1121 1673 1917 Feb. 14. C. 53 5 26 313 309 1917 Feb. 15, C. 295 25 pt. 85 1714 1917 Feb. 15, C. 29 525 pt 96 27 r. 11M7 I'Y1>. 22. C. 113 95 112 1917 Mch. 2, C. 145 6 42 1509 294 1917 Mx-h. 2, C. 145543 1509 625 r. 1917 Mch. 3, C. 17152pt 1508 294 1917 Mch. 3, C. 16255pt. 84 1507 1917 Mch. 3, C. 16557pt 336 1500 1917 Mch. 3, C. 165515 1121 1407 1917 Mch. 3, C. 1655 14 1121 1409 1917 Mch. 3, C. 165 5 10 pt 315 1407 1917 Mch. 3, C. 165512 316 1205 1917 Moh. 3, C. 1655 19 1726 1205 1917 Mch. 4, C. 179 312 1917 July 2,C. 1727 1718 1917 Aug. 8,C. 5 1728 396 1917 Aug. 10, C. 52 860 1109 1917 Aug. 10, C. J 7 1725 114 1917 Sept. 24, C. 5 12 pt. 359 114 1917 Oct. 6,0. 7 pt 17J1 1082 1917, Oct. 6,C. 359 N.1451 1917. Oct. 6.C. 3r. 1917. Oct. 6.C. |9 513 82 1917, Oct. 6.C. 10 1551 1917, Oct. 6.T. 510 1723 204 1917. Oct. 6.C. J17 1719 413 r. 1917. Oct. 6,C. 5 18 1720 113 1917, Oct. 6, C. 5<05 1724 1034 APPENDIX. TABLE OF SUPREME COURT RULES. Rule No. 2 2 4 4 6 Our Sec. Rule No. Our See Rule No. 1474 Pt, 8 1669 Pt. 8 1532 Pt. 8 1670 14 461 Ft. 8 1675 15, 1, 2, 614 Pt. 8 1685 15, 3, 1689 Our Ser. 1686 1689 1692 1694 TABLE OF CIRCUIT COURTS OF APPEALS RULES. Rule No. 7 10 10 Our Sec. Rule No. Our Seq. B. 4, 825. Supreme Court, 1530. liability of clerk for misfeasance of deputy, 1530. to grant as of course, motions and applications not requiring order of court or judge, Eq. B. 5, 823. to issue subpoena when bill filed, and not before, Eq. B. 12, 661. to issue writ of assistance on refusal to obey decree for delivery of possession, Eq. B. 9, 1143. to send copies of interrogatories to solicitors of record, Eq. B. 58, 940. verification of pleadings before, Eq. B. 36, 700. writ of error, may issue, 1660. CLERKS NEW RECORDS IN CERTAIN STATES, copies as evidence, 304, 306. CLOUD ON TITLE, venue, 57, Jud. Code, 66. COAST DEFENSES, condemnation of land for, 1727. CODE, construction of, 1700. judical, Appendix, p. 661 et seq. table of sections quoted or cited, Appendix, p. 1029. COLORADO, districts, terms and places of holding court in, 73, Tnd. Code, Appendix. INDEX. 1067 COMMERCE AND LABOR, judicial notice of seal, | 307. COMMERCE LAWS, enforcing attendance and testimony of witnesses under interstate com- merce act, 357. immunity of witnesses under, 354. interstate commerce act, see that heading, testimony, enforcing under interstate commerce act, 5 357. venue of suits affecting orders Interstate Commerce Commission, 9 82. witnesses, attendance and testimony under interstate commerce act, 357. witnesses, immunity of, under, 335. COMMISSION, see Depositions under Commission, 384. removal by writ of error to state court of decision against right, title, privilege, or immunity claimed under federal, $ 1607. COMMISSIONER, attendance of witnesses before, Eq. R. 52, 390. Chinese exclusion laws, fees of, $ 416. depositions before, 390. district court, 35. fees of, 415. notice of depositions before, 391. COMMISSIONER OF INDIAN AFFAIRS, certification of copies as evidence, 299. COMMISSIONS, award of, by judge at chambers, Eq. R, 1, 8 822. COMMITMENT, defendant who has given bail in another district, f 1274. discharge in extradition cases, 1310. seamen by district court on application of foreign consul. { 109. COMMON CARRIERS, removal of causes, employer*' liability cue* are not removable, 204. COMMON-LAW ACTIONS, see Law Actions. COMPENSATION, masters in chancery, 8 1060, Eq. R. 68. COMPETENCE, anti-trust laws, immunity of witnesses under, 335. commerce laws, immunity of witnesses under, 5 335. Congress, immunity of witnesses, testifying before, 5 338. 1068 INDEX. COMPETENCE (Continued). criminal cases, immunity of witnesses in, 335. defending as a witness in, 338. customs, revenue laws, witnesses not disqualified by claiming compensation under, 333. defendant as witness in criminal proceedings, 338. determined in general by state laws, 330. fines, officers and informers not disqualified as witnesses in suits for, 334. forfeitures, officers and informers not disqualified as witnesses in suits for, 334. immunity of witnesses, 335, 336. informers not disqualified as witnesses in suits for fines, penalties, or forfeitures, 334. officers and informers not disqualified as witnesses in suits for fines, penalties, or forfeitures, 334. penalties, officers and informers not disqualified as witnesses in suits for, 334. perjury does not disqualify witness, 332. revenue laws, witness not disqualified by claiming compensation under, 333. state laws determine, 330. testimony, see that heading, witnesses, see above and that heading, ch. 12. COMPETENCY, etc., of questions asked before examiner not to be decided by him, Eq. B. 51, 381. COMPLAINT, see Initial Pleading. bill, ch. 26. differences, federal and state, 691. law action, form of, 474. COMPLETE STATEMENT, bill of particulars, 921. COMPTROLLER OF THE CURRENCY, copies of records as evidence, 288. injunctions against, venue, 73. COMPULSORY ATTENDANCE, see Attendance. COMPULSORY PROCESS, see Process. COMPULSORY TESTIMONY, see Testimony. \ COMPUTATION OF TIME Sundays and holidays, Eq. T?. 80. Appendix. INDEX. 1069 CONCURRENT JURISDICTION, of district and state courts, |{ 90, 98. CONDEMNATION, coast defenses, land for, 1727. food products and fuel, 1725. fortifications, land for, 1727. harbor inprovements, 1728. insurrectionary property, venue, 78. land for military purposes, 1727. military purposes, for, 1727. military camps, land for, 1727. CONDUCT OP CAUSES, notice of interlocutory orders for. Eq. R. 6. 5 822. CONFERENCE DAY, Saturday, Rule 35 C. C. A. (4th Circuit) Appendix. CONFESSION AND AVOIDANCE, reply not required to matter of, f 1011. CONFINEMENT, juvenile offenders under sixteen in house of refuge, 1339. juvenile offenders separate from prisoners over twenty, 9 1388. state jail or penitentiary when use of, so allowed by state law. f 1386. same, where nonavailable, attorney general may designate, 1387. same, transportation of prisoners to place of imprisonment, 9 1388. CONFORMITY STATUTES, 57. CONFORMITY TO STATE LAWS, see Law Actions, 7, ch. 15. allowance of interest on judgments, 623. appraisal of personal property on execution sal*. 9 644. arrest, discharge from, in civil actions, $ 637. attachments, law actions, 58*80, 481. defensive pleading at law to state practice, ch. 19. discharge from arrest in civil cases, $ 637. executions at law, 631. garnishment law actions, 8 480, 481. imprisonment /or debt, modifications. 636, discharge from, in civil cases, | 637. judgments law actions, 622. lien of judgment, 9 627. levy of judgments, 9 623. rate of interest on judgments, 9 629. record of judgment, 9 625. sale of personal property on execution, appraisal. | 644. "stay of execution for one term, 9 634. 1070 INDEX. CONGRESS, claims referred by, 1432. evidence from, in court of claims, 1434. immunity of witnesses testifying before, 339. CONGRESSIONAL CHARTERS, federal question, do not now raise, 9! 122, 123. CONGRESSIONAL JOURNAL, extracts from, as evidence, 276. CONGRESSIONAL OFFICERS, certiorari in removal cases, 212. habeas corpus in removal cases against, 212. removal of causes against, class eight, 209. CONNECTICUT, districts, terms and places of holding court in, i 74, Jud. Code, Appendix. CONSOLIDATION, cases, 570. costs and fees, 407. indictments, 1243. law actions, 457. CONSTITUTION, amendments, table of citations of, Appendix, p. 1036. appellate jurisdiction Supreme Court in eases involving construction, 1555. federal question arising under, 124, 1701. habeas corpus, provision of, 1330. powers of courts, 1, 2, 3. removal by writ of error to state court of decision against right, title, privilege, or immunity claimed under federal, 1607. table of provisions cited, Appendix, p. 1036. CONSTITUTIONALITY, appellate jurisdiction of Supreme Court where federal law or treaty drawn in question on that ground, 1556. CONSTITUTIONAL JURY, see Jury, trial law actions, 583. CONSTITUTIONAL POWERS, federal courts, 1, 2, 8. CONSTRUCTION, Code, 1700. Constitution appeal to Supreme Court,, 1335, 1338. INDEX. 1071 CONSTRUCTIVE SERVICE, | 66. CONSUL, as a party in Supreme Court, | 1534. awards of, appellate jurisdiction of the district court, | 107. foreign, in United States, jurisdiction over seamen, 108. CONSULAR RECORDS, copies aa evidence, 5 304. CONTEMPT, court's power to punish for, 1118. enforcement of decrees, see that heading. for noncompliance with mandatory order, etc., Eq. R. 8, 55 478, 1112, 1140, 1143. garnishee in, for failure to appear in government suits against corpora- tions, } 512. witnesses, power to punish for, 5 347. witness in, refusing to give testimony before commissioner examiner, etc., Eq. R. 52, 390. CONTINUANCES, see also Adjournments. affidavit on application for provisions as to, Eq. R. 57, | 678* calendar, case on, 1032. C. C. A. Rule 19 (3d Circuit) Appendix. costs, Eq. R. 57, 678. counsel's consent to, Eq. R. 57, 55 678, 67ft. death of a party, 561. debentures, suits on, 563. dismissal after, Eq. R. 57, 9 679. district court, 51. equity, suits, 678. judge's office vacant, 51. law actions, 456. postal laws, suits under, 9 564. suit against delinquent for public moneys, 9 563. tariff laws, suits under, 9 566. CONTRACTS, and other papers of the United States in settlement of accounts with government, copies as evidence, 9 290. CONVEYANCE, decree for how enforced, Eq. R. 8, 9 1140. COPIES, as evidence, see subheading Copies under heading Eridenee. COPY OF INTERROGATORIES to be sent by eterk to solicitors of record, Eq. R. 58,9940. 1072 INDEX, COPY OF PRECIPE, indicating portions of record on appeal, Eq. R. 75, 1671. service of indicating, etc., Eq. E. 75, 1671. COPYRIGHTS, costs, 437. infringement of, statute of limitations, 251. laws, venue, 72. penalty under, statute of limitations, 241. trading with the enemy act, suits under, 1722, 1723. venue, 72. COEPOEATE OFFICER to sign interrogatories under oath, Eq. R. 58, 940. CORPORATIONS, banks, national, do not ipso facto involve federal question, 123. congressional charters not a ground of federal jurisdiction, 122, 123. same, diverse citizenship, 147. diverse citizenship of, 144. federal, involve question, 122. involve national bank, 123. same, except national banks, 123. national banks, do not ipso facto involve federal question, 123. stockholders as parties, 740. stockholder's bill against, Eq. R. 27, ch. 29. when interrogatories to be answered by officer of, Eq. R. 58, 940. CORRECTION, omissions in transcript on appeal, Eq. R. 76, 167L CORRESPONDENCE, interrogatories, as to, 946. CORRUPTION OF BLOOD, none in criminal cases, 1404. COSTS, see also Costs and Fees, ch. 14. appeal and error, double for delay, 1687. continuances beyond term, 1032. correction of omissions of record on appeal, Eq. R. 76, 1671. delays impose costs on exceptions to master's report Eq. R. 67, 1070. depositions to be advanced by party calling witnesses, Eq. R. 50, 1044. deposition, when incompetent party, Eq. R. 51, 381. double, nonsuit action against revenue officer, 433. imposition of for frivolous causes, Eq. R. 67, 1070. imposition of, for infraction of rule as to record on appeal, Eq. R. 76, f 167-1. INDEX. 1073 COSTS (Continued). may be imposed on offending solicitors, Eq. R. 78, 9 1871. motions will not be granted unless paid, Eq. B. 17, 813. of continuances, provisions as to, Eq. B. 57, 99 678, 679. of incompetent, etc., depositions to be dealt with by court, Eq. B. 51, 9381. of plaintiff to be paid before court will set aside decree pro confetso, etc., Eq. B. 17, 9 813. on exception to master's report, Eq. B. 67, 9 1070. on proving execution or genuineness of document, etc., Eq. B. 58, 9 940. on reference to master, Eq. B. 59, 9 1061. payment of, and full compliance with decree before a discharge of attach- ment, Eq. B. 8, 473, 1112, 1140, 1143. stenographer's fees to be taxed as, Eq B. 50, 9 1044. terms as to, when further and particular statement in pleading required, Eq. B. 20, ch. 41, 812, 968. to nominal parties, Eq. B. 40, 9 721. verification of bill of, 9 403. witnesses before commissioner, master, or examiner, Eq. B. 52, 9 390. COSTS AND FEES, ch. 14. amount in controversy, as affecting, 406, amount of recovery affecting, 406. appraisers, fees on execution sales, 9 429. attorneys, civil rights cases, 9 414. fees of, 409. liability for costs Texatiously increased, 9 410. bill of costs, 401, 402. bond circuit court of appeals, Bule 13 C. C, A. Bule 27 C. C. A. (6th Circuit) Appendix. Bule 29 C. C. A. (3d, 4th, 5th, 7th, 8th and 9th Circuits) Appendix. Bule 31 C. C. A. (1st and 2d Circuits) Appendix, clerk's fees, 412. civil rights case, 9 414. Chinese exclusion laws, commissioner's fees, 9 416. eircuit court of appeals, Rule 43 C. C. A. (8th Circuit) see Bond C. C. A. above, Appendix. civil rights laws, attorney's, clerk's, and marshal'! fee, 9 receiverships, appeals in, to circuit court of appeals, 150&, reclamation act, 112. records, place for keeping, } 54. transfer of territorial, 54. removal, see that heading, ch, 9. reports of decisions, 55. rules, admission to practice, 56. law actions, 57. rules equity suits, 58. special terms, 51. states, places of holding court in, ch. 5, Jud. Code, Appendix, substitution of judges for disability of one, 22. substitution of judges of, when interest or relationship of incumbent appears, 25. substitution of judges in, when bias or .prejudice shown, 25. suits in equity, rules, 9 58. terms, altering, does not affect proceedings of, 51. judicial district, ch. 5, Jud. Code, Appendix. special, 51. time for appeal, to circuit court of appeals, 1653. to Supreme Court, 1652. time and places for holding court in the several districts, ch. 5, Jud. Code, Appendix. see under Loadings of the several states. trials, conclusion of, in new term, 51. United States district attorney in, 9 33. venue, see that beading, when open, 52, 61. writs, power to issue, 9 1100. writ of error to circuit court of appeals, 9 1501. time for, 9 1653. writ of error to Supreme Court, time for, 9 1652. DISTRICT COURT OF ALASKA, procedure on appeal to Supreme Court, 1 1679. DISTRICT COURT OF PORTO RICO, procedure on appeal from, 9 1680. DISTRICT COURTS, see Court, and District Court, above, additional rules by, Eq. R. 79, 8, 58. always open for certain purposes, Eq. R. 1, 9 660. to establish times and places when motions may be made and disposed of, Eq. R. 6, 9 821. 1098 INDEX. DISTRICT JUDGE, accumulation of business, disposal of, 25. additional, assignment of, 22. designation of, 26. disability of incumbent, 22. affidavit bias or prejudice, 25. N appointment, accumulation of business, 22. change of, 22. chief justice's, 22. disability of incumbent, 22. bias or prejudice, affidavit of, 25. circuit judge acting as, 23. designation of additional, 22, 24, 25. disability, designation of another judge, 22. distribution of business, 21. duties and powers of additional or substituted judge, 28. interest of incumbent, outside judge, 25. may make, direct, and award process, commissions, orders, rules, etc., Eq. R. 1, 822. number of, in the several districts, 20. prejudice, affidavit of bias or, 25. procedure, bias or prejudice of incumbent, 25. 'interest or relationship of incumbent, 25. relationship of incumbent, outside judge, 25. vacancy in office, continuance, 51. DISTRICT OF COLUMBIA, appeal and error to Supreme Court, 1561. appellate procedure, 1682. certification to Supreme Court, 1683. diverse citizenship, not a citizen, 142. procedure on appeal from court of appeals, 1682. prohibition laws, civil action for injuries, 1726. prohibition laws, injunction against violation of, 1121. prima facie evidence, 315. DISTRICTS, see also Judicial District's, ch. 5, Jud. Code, Appendix. Alabama, 70, Jud. Code, Appendix. Arkansas, 71, Jud. Code, Appendix. Arizona, Act Oct. 3, 1913, ch. 17, following 71, Jud. Code, Appendix. California, 72, Jud. Code, Appendix. C. C. A. circuits, 1470. Colorado, 73, Jud. Code, Appendix. INDEX. 109U DISTRICTS (Continued). Coanecticut, 74, Jud. Code, Appendix. Delaware, 75, Jud. Code, Appendix. Florida, 76, Jud. Code, Appendix. Georgia, 77, Jud. Code, Appendix. Idaho, 78, Jud. Code, Appendix. Illinois, 79, Jud. Code, Appendix. Indiana, 80, Jud. Code, Appendix. Iowa, 81, Jud. Code, Appendix. Kansas, 82, Jud. Code, Appendix. Kentucky, 83, Jud. Code, Appendix. Louisiana, 84, Jud. Code, Appendix. Maine, 85, Jud. Code, Appendix. Maryland, 86, Jud. Code, Appendix. Massachusetts, 87, Jud. Code, Appendix. Michigan, 88, Jud. Code, Appendix. Minnesota, 89, Jud. Code, Appendix. Mississippi, 90, Jud. Code, Appendix. Missouri, 91, Jud. Code, Appendix. Montana, 92, Jud. Code, Appendix. Nebraska, 93, Jud. Code, Appendix. Nevada, 94, Jud. Code, Appendix. New Hampshire, 95, Jud. Code, Appendix. New Jersey, 96, Jud. Code, Appendix. New Mexico, 13, Act June 20, 1910, ch. 310, following 98, Jud. Code, Appendix. New York, 97, Jud. Code, Appendix. North Carolina, 98, Jud. Code, Appendix. North Dakota, 99, Jud. Code, Appendix. Ohio, S 100, Jud. Code, Appendix. Oklahoma, 101, Jud. Code, Appendix. Oregon, 102, Jud. Code, Appendix. Pennsylvania, 103, Jud. Code, Appendix. Rhode Island, 104, Jud. Code, Appendix. South Carolina, 105, Jud. Code, Appendix, South Dakota, 106, Jud. Code, Appendix. Tennessee, 107, Jud. Code, Appendix. Texas, 108, Jud. Code, Appendix. Utah, 109, Jud. Code, Appendix. Vermont, 110, Jud. Code, Appendix. Virginia, 111, Jud. Code, Appendix. Washington, 112, Jud. Code, Appendix. West Virginia, 113, Jud. Code, Appendix. Wisconsin, 114, Jud. Code, Appendix. Wyoming, f 115, Jud. Code, Appendix. 1100 INDEX. DIVERSE CITIZENSHIP, aliens, 152. bond in removal cases, 196. change of citizenship to give jurisdiction, | 156. change of domicile after suit commenced, 154. collective term, 153. commencement of suit, change of domicile afterwards, 155. constitutional provision, 3. corporations, 144. defined, 141. District of Columbia citizens not meant, 142. domicile, change of, in cases of diverse citizenship, 155. change of, after suit commenced, 155. federal question does not involve, 127. ground of jurisdiction, ch. 7. guardians, 151. Indians, 152. issue how raised, 159. joint stock companies, 145. jurisdiction, basis for, 1, ch. 7. change of domicile after suit, 155. federal courts, 1. married women, 148. national banks, 147. parties, shifting of, to create, 157. partnerships, 146. personal representatives, 149. shifting parties to create, 157. transfer of subject matter to create, 156. venue as affecting, 158. removal of causes, 191, 192. remanding or dismissing cases fraudulently or improperly removed, | 215. representatives, 149. shifting parties to create, 157. states not citizens, 143. subject matter, transfer of, to give jurisdiction, 156. territorial citizens not meant, 142. territories not citizens, 143. transfer of subject matter to give jurisdiction, 156. ' trial, want of, appearing, 160. trustees, 150. venue affected by, in cases involving federal question, 127. venue as affecting jurisdiction, 158. INDEX. HOI DIVERSE CITIZENSHIP (Continued). what is, 9 141. when want of, appears on trial, 160. DIVERSITY OP CITIZENSHIP, assignment to get diversity, S 24, Jud. Code, 97. form of motion to dismiss in such case, 9 159. DIVISION OF BUSINESS DISTRICT COURT, 21. DOCKET, circuit court of appeals, Rule 17 C. C. A. Appendix. DOCKETING, cases in circuit court of appeals, Addenda Rule 45 C. C. A. Appendix, Rule 16 C. C. A. Appendix. DOCUMENT, execution or genuineness of, call for admission of, Eq. R. 58, 940. identified but not set forth in master's report, Eq. R. 61, S 1070. DOCUMENTS, attachment may issue for failure to produce, Eq. R. 58, 940. bill may be dismissed for failure to produce, Eq. R. 58, 940. costs of proving execution or genuineness, Eq. R. 58, 940. court may enforce inspection and production of, Eq. R. 58, 270, 670, 571. demand to admit execution and genuineness, 940. deposition under commission, production of, 387. inspection and production, Eq. R. 58, 940, 571. interrogatories for discovery of, when to be filed, Eq. R. 58, 940. previously used in court may be used before master, Eq. R. 64, j 1063. production of, on deposition under commission, 9 387. production of, required by master, Eq. R. 62, S 1063. production refused, answer may be stricken out, Eq. R. 58, S 940. DOMESTICS OF AMBASSADORS, ETC., Supreme Court, suite against, in, 9 1534. DOMICILE, 141. DRAFTING DECREE, 9 1142. DRAWING JURY, trial law actions, place from where, 9 588. DUE PROCESS OF LAW, federal question, S 126. DUTIES, bail in suit for, 9 1273. clerk's, Eq. R. 2, Appendix 1102 INDEX. DUTIES (Continued). see Customs duties; Jurisdiction district court, 5 1W interest, kind of money payable in suits for, 624. marshal's, Eq. R. 15, 796. master's, Eq. R. 60, 1062. special bail in suit for, 1273. statute of limitations for violation laws, 239, 240. DUTIES OP MARSHAL, Supreme Court, 1530. DUTIES OP REPORTER, Supreme Court, 1531. DUTY, removal of causes, state court on, 197. DWELLING-HOUSE, service of subpoena by leaving copy at, Eq. B. 13, B. EFFECT, answer in equity, 55 960, 962. counterclaim in equity, 980, 981. failure to plead counterclaim or setoff, 983-. setoff, 55 980, 981. valid setoff or payment on amount in controversy, 177. verdict, 5 611. EMBARGO, seizure for venue, 5 79. EMPLOYERS' LIABILITY ACT, removal of causes, common carrier, cases are not removable, 204. statutes of limitations, 5 248. ENEMY, statute of limitations under trading with the enemy act, 1721. trading with the enemy, see that heading, 1721. ENFORCEMENT, decree, equity suits, 5 1143. decree, conditionally, 5 1144. injunction, 5 1112. ENFORCEMENT OP DECREES, Eq. B. 8, 473, 1112, 1143. ENFORCEMENT OF LIEN, upon creation or transfer of district or terri- tory, venue, 5 70. INDEX. 1103 ENFORCING ATTENDANCE, see also Witnesses, subhead Attendance, depositions, de bene esse, of witnesses, 378. for foreign country, of witnesses, 394. under commission, of witnesses, 386. witnesses for depositions de beiie ease, 378. for foreign country, 394, under commission, 386. ENFORCING TESTIMONY OP WITNESSES, tee Witnesses, Testimony, 346, 352, 355, 357. ENTRY, decree, 1142. ENTRY OF ORDERS, Bq. B. 3, Appendix. EQUAL PROTECTION OF THE LAWS, federal question, { 124. EQUITABLE DEFENSE, law actions, 545. EQUITY, see various headings names of pleadings as Bill, answer, etc. bankruptcy proceedings are in, 881. bill of review, ch. 68. depositions, ch. 48. discovery, ch. 43. injunctions, ch. 54. joinder legal and equitable not permitted to make up jurisdictional amount, 864. jurisdiction, suit against receiyers, 1083. law action transferred to law side, ch. 37. legal relief in, ch. 38. parties, ch. 27. receivers, ch. 53. rehearing, ch. 57. reply, ch. 47. reviver, ch. 33. stockholder's suit, ch. 29. transferring to law side, ch. 37. EQUITY COURT, open when, 58. EQUITY DOCKET, appearance noted in, Eq. R. 3, Appendix clerk to keep, Eq. R. 3, Appendix. day of return of master's report to be entered in, Eq. B. M, 107. index of, Eq. R. 3, Appendix. noting of order in, not notice, Eq. R. 4, 825. 1104 INDEX. EQUITY JOURNAL, clerk to keep, Eq. R. 3, Appendix, index of, Eq. R. 3, Appendix. EQUITY PROCEDURE, see Equity Suit. EQUITY RULE'S, set out in full in Appendix, p. 971 et seq. EQUITY SUIT, action at law erroneously begun as transfer, Eq. R. 22, 472, ch. 37. adjournment, see Continuances, 1671. amended bill, time to answer, 668. answer (see that heading, ch. 44), time for. 665. after overruling motion to dismiss, 667. time for, to amended bill, 668. better statement, obtaining, 920. bill (see Bill in Equity, ch, 26) amendment, time for answer, 668. general statement, 660. calendar, reinstatement of case on, 679. trial, 676. certainty, obtaining, 920. continuances, 678. counterclaim or setoff (see that heading), 980, 981, 982, 983. issue, 675. reply to, 674. time for serving copy of, 672. cross-bill now in the counterclaim, 982. damages in, 861. decree, see that heading, eh. 56. decree pro confesso, see that heading, ch. 35. defect of parties in, 824. defense, see Decree Pro Confesso, ch. 35, Answer in Equity, chs. 40 and 44. defense in point of law, chs. 39, and 40. defense, motion to strike out, 673. defensive pleading, see that heading, 850, ch. 36. kinds of, 820. law, defense in point of, ch. 39. motion to strike, 673. time for, 665. denniteness, to obtain, 920. depositions (see that heading, eh. 16) after issue, 373. after case on trial calendar, 677. before issue, 671. differences from law, 6. discovery, see that heading. INDEX. 1105 EQUITY SUIT (Continued). after issue, 670. before issue, 662. by defendant, 670. by plaintiff, 662. time for, 662, 670. evidence, see that heading, eh. 1L in, 1043. form of, rule, 380. grounds for taking, 9 504. objections, rule, 381. publication or filing, 9 392. signing, rule, 380. time for taking, 372, 373. form of deposition, rule, 5 3*80. forms in, see that heading, grounds for taking depositions, 374. hearing, motion to dismiss, 666. motion to strike out defense, 673. trial calendar, 9 678. impertinent matter, removal of, 930. interrogatories by defendant, i 670. by plaintiff, 662. time for, 662, 670. irrelevant matter, removal of, 930. issue, depositions after, 9 373. issue in, see that heading, issue when no counterclaim or setoff, 9 669. when counterclaim or setoff pleaded, 675. jury in, 9 862. lawsuit begun as, 9 472, ch. 37. legal relief in, 9 860. masters in chancery, see that heading, ch. 51. matters ordinarily determinable at law when arising in, to be disposed of therein, Eq. B. 23, ch. 38. motion, see under Decree Pro Confesso, ch. 35; Motions and Pleadings, motion to dismiss, 9 666. time for answer after overruling, 9 667. motion to strike out defense, 9 673. motion to transfer to law side, ch. 37. . objections to depositions, 9 381. orders, notices of, 9 825. particulars, obtaining, 9 920. pleading in, see under headings of various pleadings, and the general heading, Pleading. Manual 70 1106 INDEX. EQUITY SUIT (Continued), possession in, } 861. practice, summary of proceedings, ch. 25. precipe for subpoena, general statement, 661. proceedings in, summary, ch. 25. publication of deposition on filing, 392. redundant matter, removal of, 930. reinstatement case on calendar, 67&. removal of redundant, scandalous, or impertinent matter, 930. reply to counterclaim in equity, 1010. % reply, time for, 674. return of subpoena, 664. rule as to form of deposition, 380. objections to deposition, 381. signing deposition, 512. rules governing, 58. summary of proceedings, ch. 25. scandal, removal of, 930. setoff, see heading Counterclaim, signing depositions, 382. statement, better, and particulars, 920. subpoena for defendants, general statement, 661. return of, 664. summary of, ch. 25. supplemental pleading, see that heading, time for, answer after overruling motion to dismiss, 666. counterclaim, 672. defensive pleadings, 665. depositions, 372, 663, 671, 677. discovery, 662, 670. hearing, motion to dismiss, 666. interrogatories, 662, 670. issue, 669, 675. motion to dismiss, 665. motion to strike out defense, 673. pleading, see under headings various pleadings, and under heading Time. reinstatement of cases on calendar, 679. reply, 674.' setoff, 672. taking depositions, 372, 663, 671, 677. trial, see that heading, ch. 50. trial by jury, when, 862. trial calendar, 676. INDEX. 1107 ERRONEOUSLY beginning in equity transfer law iide, Eq. B. 22, 1 472, eh. 37. ERROR, see Writ of Error, assignment of, 1661. bill of review to correct, 1 1180. form of assignment of, 9 1662. or defect in proceedings, court to disregard when not affecting substan- tial rights, Eq. R. 19, 9 760. striking out, appeal, 9 933. time for return of writ, 9 1675. writ of, from state to Supreme Court, time for. 1655. ERROR TO STATE COURT, see Removal by Writ of Error to State Court of Last Resort, 9 1601. ESCAPE, extradition, retaking person held, 1 1309. EVIDENCE, ch. 14. admissibility of, in equity, 9 1043. ftdmissibility of, to be passed on by court, Eq. R. 46, 9 1043. affidavits of expert witnesses in patent and trademark cases, when not to be used as, Eq. R. 48, 99 1041, 1045. answer in equity is not, 9 962. answer not to contain, Eq. R. 30, 9 964. best, rule applicable to interrogatories, 9 947. bill of review for newly discovered, after term, 9 1180. before master on examination to be taken down, Eq. R. 65, 9 1063. bound copies of acts as evidence, 99 278, 279. bonds and other papers of United States in settlement of accounts with government, 9 290. burden of proof, seizure cases under customs duties laws, 9 308. clerk's new records in certain cases, f 305. clerk's new records in North Carolina, 9 306. commissioner of Indian affairs, copies of records, 9 449. competence not to be determined by examiner, Eq. B. 51, 9 381. Comptroller of Currency, copies of records, 9 288. congressional journal, extracts from, 9 277. consular records, copies, 9 304. contracts and other papers of the United States in settlement with gor. eminent, copies, 9 290. copies, bonds in settlement accounts with government, | 290. clerk's new records in certain states, 9 305. in North Carolina, 9 306. 1108 INDEX. EVIDENCE (Continued), copies (continued). commissioner of Indian affairs, 299. Comptroller of Currency, records, 288'. consular records, 304. contracts and other papers of the United States in settlements, 290. congressional journals, extracts from, 277. currency, Comptroller's records, 288. Department Interior, return of contract, 294. Executive Department records, 286. foreign letters patent, 301. foreign records filed in department offices relating to land titles, 276. Indian affairs, copies of the commissioner's records, 299. Land Office records, 297. lost or destroyed records. judicial, 280. returns and official papers of judicial officers, 284. Supreme Court records, 282. national bank organization certificates, 289. navy records in suits against delinquents, 291. official papers, 284. pamphlet copies of statutes and bound copies of acts, 278. % -patent office records, 300, 302. patents, foreign letters, 301. postoffice records, 295, 296. printed and bound copies of acts, 279. printed copies of specifications and drawings of patents, 302. records, clerk's new, 305, 306. Commissioner Indian affairs, 299. Comptroller of Currency, 288. Department of Interior, 294. . Executive Departments, 286. foreign, filed in departments relating to land titles, 276. lost or destroyed, 280, 285. navy, 291. patent office, 300-303. postoffice, 295, 296. public offices not appertaining to a court in states and terri- tories, 275. solicitor of treasury, 287. state, 275. Supreme Court, lost or destroyed, 282. Treasury Department, 291, 293. war, 291. INDEX. EVIDENCE (Continued), records (continued). returns, copies of lost or destroyed. 284. returns, of a contract to Return* Office Department of Interior, 294.- solicitor of treasury, 287. state records, 275. Supreme Court, lost or destroyed records, 282. trademarks, 303. treasury records in suits against delinquents, 291. treasury in embezzlement suits, 293. war records in suits against delinquents, 291. court of claims, court or judge may enforce answers to interrogatories and production of documents containing, Eq. R. 58, 670, 940. burden of proof, 1434. examination of claimant, 1434. from departments and congress, 1434. currency, copies of records of Comptroller, 288. customs laws, burden of proof, seizure cases, 308. Department of Interior, copies of contract returns, 9 294, depositions in equity, ch. 48. discovery ch. 43, Eq. R. 58, 670, 940. examination of claimant, court of claims, 5 1434. Executive Department records, copies of, 286. expert, interrogatories not to obtain. 949. extradition hearing, 1307. extradition on, only where establishing probable cause, 1301. federal- laws, evidence of, 271, 273, 274. pamphlet copies of statutes and bound copies of acts, 278. foreign laws, 274. foreign letters patent, 301. foreign records filed in department offices relating to land titles in United States, 276. from departments and Congress, in court of claims, 1434. government paramount title does not affect possessory action mining title, 310. how to be stated in record, Eq. R. 75, 1671. Indian affairs, copies of commissioner's records, 299. inspection and production of documents, etc., Eq. B. 58, 675, 940. interrogatories not to obtain, 944, 948. jii'licial notice, seal of Department Commerce and Labor, 307. judicial records, copies of lost or destroyed, 280. 1110 INDEX, EVIDENCE (Continued). land office records, certification of, 297. law actions, 460. Little and Brown's statutes, 271. supplement, 272. lost or destroyed judicial recordg, 280. lost returns and official papers, judicial officers, 434. lost Supreme Court record, 282. master may direct mode of proving matters before him, E"q. R. 62, 1063. materiality not to be determined by examiner, Eq. E. 51. 381. mere statement of, to be omitted from bill, Eq. E. 25, 696. motion to dismiss does not consider, 883, 1901. national bank organization certificates, 289. navy records in suits against delinquents, 291. objections to, Eule 12 C. C. A. Appendix, objections, to, taken before examiner, etc., Eq. E. 51, 381. offered and excluded, proceedings on, Eq. E. 46, 1043. official papers, copies of lost or destroyed, 284. pamphlet copies of statutes and bound copies of acts, 278. patents, copies of foreign letters, 301. of letters patent, 300. of trademark records, 303. printed copies of specifications and drawings of, 302. Postoffice Department demand on postmasters, 296. postoffice records, copies, 295, 296. prima facie District of Columbia prohibition laws, 315. payment of special tax, 316. production of documents, etc., Eq. E. 58, 670, 940. proof state and foreign legislative acts and state court records and proceedings, 274. publication of Interstate Commerce Eeports and Decisions as evidence, 311. record on appeal condensing, Eq. E. 75, 1671. record, statement in. Eq. E. 75, 1671. records of public offices not appertaining to a court in states and terri- tpries, 275. records, see that heading and also subhei d above, copies, rehearing for newly discovered, 1362, 1163. reports of investigations of accidents from failure of boilers, not admis- sible in damage suits, 309. relevancy not to be decided by examiner, Eq. E. 51, 381. restoration of records, see that heading, 281, 285. returns, copies of lost or destroyed, 2S4. INDEX. 1111 EVIDENCE (Continued). return f a contract to Returns Office Department of the Interior, | 294. Revised Statutes, authorized editions, 271, 273. Richardson's Supplement of Rerise'd Statutes, fi 273. seizures, customs cases, burden of proof, 308. solicitor of treasury, copies of records, fi 287. state court records, f 274. state laws, 274. state records, copies, 275. statutes, see Federal Laws, 5 271, 273. stenographer's appointment, Eq. R. 50, 1044. subpoena duces tecum to register of land office, 9 298. sufficiency of, to convict under Alaska prohibition laws, 814. supplement of Revised Statutes, 272. Supreme Court lost or destroyed records, copies, 282. taken before examiners, provisions as to, Eq. R. 51, 381. taken before examiners to be returned to the court, Eq. R. 49, 380. testimony before commissioners court of claims, 1434. testimony to be taken in open court, Eq. R. 46, 1040, 1043. trademark, copies of patent office records, 303. treasury, war, navy, records in suits against delinquents, 291. Treasury Department books and proceedings in embezzlement suits, 9 29 .'V war records, copies in suits against delinquents, { 291. witnesses, see that heading. EXAMINATION, claimant on interrogatories before master, Eq. R. 65, 5 1063. court of claims, 1434. master adjournment of, Eq. R. 60, fi 1062. EXAMINER, attendance of witnesses before, Eq. R. 52, 390. competency of questions before, not decided by him, Eq. R. 51, { 381. contempt, witness in, for refusing to appear before, Eq. R. 52, | 390. cross-examination of witness before, Eq. B. 64, 9 372. depositions before, Eq. R. 49, fi 380. evidence taken before provisions as to, Eq. R. 51, fi 381. evidence taken before, to be returned to court, Eq. R. 49, | 380. hearings public in anti-trust cases, fi 396. notice of taking testimony before, etc., Eq. R. 531, fi 391. not to decide on competency, materiality, or relevancy of questions, Eq. R. 51, 5 381. witnesses, attendance before, Eq. R. 52, fi 390. EXCEPTIONAL MATTERS, reference to master, illustration, fi 1064, 1112 INDEX. EXCEPTIONS, bill of, see Bill of Exceptions, ch. 23. filing to master's report, 1071. for insufficiency of answer abolished, Eq. E. 33, ch. 46. master in chancery's report, 1070, 1071. time for taking, in law actions, 597. to answer for scandal and impertinence shall not obtain, Eq. E. 21, 967. to evidence offered and excluded, provisions as to, Eq. E. 46, 1043. to master's report, Eq. R. 66, 1070. to master's report, costs on, Eq. B. 67, 1070. trial law actions, taking of, 596. EXCEPTIONAL MATTEES, Deference to master, illustration, 1064. EXCLUSION OF CHINESE, district court's jurisdiction, 104. EXCLUSIVE JURISDICTION, district court, 90, 91, 92. Supreme Court, 1534. EXECUTION, ch. 27. allowance of interest on judgments, 623. appraisal, personal property, 644. arrest, discharge from, in civil actions, 637. conformity to state laws, 631. criminal cases, postponed where case carried to appellate court, 13S3. death penalty, 1403. debt, imprisonment for, 636. discharge from arrest, 637. discharge from, poor debtor in government suits, 638, 639. fees of appraisers, 429. government suits, discharge of poor debtor, 638. imprisonment for debt, 639. purchase by government on sale of real estate, 643. imprisonment for debt, 636. discharge from, 637. law actions, 463. lien not divested by change of district, 628. motion for new trial, 633. new trial, 633. officers, 632. personal property, 640, 644. place, where runs and executed, 635. place, sale of real estate, 640. publication, sale of real estate, 641. revenue officers, when not against, 632. INDEX. 1113 EXECUTION (Continued). runs and is executed in any part of state, 9 635. ale of personal property, place of, 640. sale of personal property, appraisal of, 644. Bale of real estate, place of, 640. state practice, conformity to, 631. stay of pending motion for new trial, 9 633. term, stay of, for one, 634. writ of, provisions as to, Eq. E. 8, 473, 1112, 1140, 1148. EXECUTION OP DOCUMENTS, admission of, of documents, Eq. B. 58, 670, 940. demand to admit, 940. EXECUTIVE DEPARTMENT RECORDS, ETC., copies as evidence, 286. EXECUTOR AS PARTY, Eq. B. 37, ( 710. EXEMPTIONS, jury, trial law actions, 584. after one term's service in a year, f 587. civil rights acts, 585. EXHIBITS, bill of particulars does not include, 9 923. motion to dismiss, considered on, 883. of materials, Rule 34 C. C. A. Appendix. Bule 32 C. C. A. (3d, 7th, 8th, and 9th Circuits) Appendix. EX PARTE, cause to be proceeded with after decree pro confesso, Eq. B. 16, 9 811. proceedings before master, Eq. R. 60, 9 1062. EXPERT EVIDENCE, interrogatories not to obtain, 9 149. EXPERT WITNESSES, testimony of, in patent and trademark cases, Eq. B. 48', 99 1041, 1045. EXTBADITION, agent to receive fugitive from foreign countries, 9 1313. arrest of fugitive from foreign countries, 9 1300. costs and fees, 9 417. escape, retaking person held. 1309. 1114 INDEX. EXTRADITION (Continued), evidence, extradition granted only where probable cause exists, 1301. hearing upon the return, 1307. foreign country, fugitive from, 1300. fugitive from place under control of United States, 1303. hearing, evidence on, 1307. to be public, 1305. hearing to be on land, 1305. where fugitive from foreign country or territory under control of the United States, 1304. indigent prisoners, witnesses for, 1306. interstate, 1315. political offense, extradition not allowed, 1303. prisoner extradited from another state, 1316. rescue, prisoner extradited from foreign country, penalty, f 1314. time for, 1310. territory, fugitive from foreign, under control of the United States, 5 1303. transportation, extradited person to the United States, 1312. treaty, extradition provisions continuing during existence of, 1312. trial, prisoner to be surrendered only for fair, 1308. warrant, arrest of fugitive from foreign countries, 1300. witnesses for indigent prisoners, 1306. witness fees, 417. P. FACT, conclusions of master presumptively correct, 9 1073. reversal, not for error in, 1686. Supreme Court, issues of, in, 1534. writ of error, none for error in, 1686. FACTS, insufficiency of, as defense, how presented, Eq. B. 29, 880, 900. material, may be alleged in supplemental pleading, Eq. B. 34, eh. 32. not to be stated in master's report, Eq. B. 61, 1070. ultimate statement of, upon which relief asked, to be stated in bill, Eq. B. 26, 696. FEDEBAL BILL IN EQUITY, see Bill, ch. 26. FEDEBAL COMPLAINT AT LAW, see heading Injtial Pleading at Law, ch. 16. INDEX. 1115 FEDERAL- CONSTITUTION, nee also Constitution, federal question arisei under, 9 124. FEDERAL CORPORATIONS, federal question involved when parties, except national banks and railroads, 122, 123. national banks as, do not ipso facto involve federal questions, 9 123. FEDERAL COURTS, see also Courts. actions in, see Law Actions, chs. 1, 15. appellate procedure of, differences law and equity, 9 8. constitutional powers of, 1, 2, 3. circuit court of appeals, see that heading, 9 4, ch. 70. court of claims, see that heading, 9 4, ch. 68. court of customs appeals, see that heading, 9 4, ch. 69. district courts, see that heading, 9 4, chs. 2, 3, 6. double system of procedure of, 9 5. enumeration of, 9 4. equity suits, see that heading, ch. 25. functions of, 9 1. generally as to, ch. 1. judicial power of, under the constitution. 9 1, 2, 3. jurisdiction in general, sec Jurisdiction, ch. 1. law actions, see that heading, ch. 15. penal laws enforced in, 9 1202. place of, in our judicial system, 1, & practice, see that heading, procedure, see also that heading. blended, a future possibility, 9 9- desirability of a special study of, 9 12. differences between federal and state, 996, 10. double system of, 9 5. equity suits, rules governing, 9 8, ch. 25. law actions, conformity to state practice, 9 7, ch. 15. Supreme Court, see that heading, 9 4, ch. 72. writs, power to issue, 9 1100. FEDERAL JURISDICTION, see also Jurisdiction. of offenses, 9 1205. FEDERAL LAWS, appeal to Supreme Court where federal tows drawn In question, 9 1556. evidence of, 9 271, 273, 278. 1116 INDEX. FEDERAL LAWS (Continued). federal questions arise under, 125. pamphlet copies of statutes and bound copies of acts as evidence, 278. FEDERAL OFFICERS, see also Judicial Officers. aliens, suits by, against officers, removal of, 206. certiorari in removal of suits against congressional or revenue, 212. congressional, suits against removal of, 209. federal question involved in suits by or against, 121. habeas corpus in removal suits, 208, 212. parties to suit, raises federal question, 121. removal of causes, aliens against, 206. against congressional 'or revenue officers, 209. revenue officers, removal of suits against, 209. FEDERAL PROCEDURE, see Procedure. i FEDERAL QUESTION, ch. 6. allegation of in bill, 127. amount in controversy required, 128. arising under the constitution, 124. federal laws, 125, treaties, 125. banks, national, exception as to, involving federal question, 123. bill in federal court must show, 129. bill in state court must show, 130. bond in removal cases, 196. citizenship, in cases involving federal question as affecting venue, 127. class one in removal cases, 192. constitution of the United States arising under, 124. constitutional provision as to, 3. corporations chartered by Congress, 122, 123. corporations, federal, arises in suits involving, 122. exception national banks and railroads, 123. defined, 125. diverse citizenship, in cases involving federal question, as affecting venue, 127. federal constitution, arising under, 124. laws, arising under, 125. treaties arising under, 125. federal corporations, arises in suits involving, 122. exception national banks and railroads, 123. federal incorporation no longer ground of jurisdiction, 122, 123. federal officers, arises in suits involving, 121. INDEX. 1117 FEDERAL QUESTION (Continued), ground of jurisdiction, ch. 6. ground of original jurisdiction, 9 125. ground for removal, 125. issue, how raised, 130. jurisdiction, federal courts, 1. ground of original, 125. for removal, 126. laws of the United States arising under, 125. national banks, suits involving do not ipso facto raise federal question, 123. officers, federal, arises in suits involving, 121. original jurisdiction, as a ground of, 125. parties in suits involving, 127. pleading, initial, must show in federal court, 129. state court, 130. removal, ground for, 126. removal of causes, 5 191, 192. bond, 196. remanding, 215. treaties 6f the United States, i 125, 126. venue as affected by diverse citizenship, 127. what is, 9 120. where must appear in federal court, 129. -, v state court, 130. FEDERAL SYSTEM, double, legal and equitable, 9 5. FEDERAL TREATIES, see Treaty. FEDERAL WRIT OF HABEAS CORPUS, cases where it will issue, 9 1333. FEES, see also Costs and Fees, ch. 14. amount of, and mileage, witnesses, 348, 349. claim cases pending in Departments, witnesses, 356. clerk circuit court of appeals, Rule 23 C. C. A. (7th Circuit) Appendix. departments claim cases, witnesses, 9 356. mileage, witnesses, ,'i48, 349. double, prohibited, of witnesses, 9 350. stenographer's, Eq. R. 50, 1044. witnesses, amount and mileage, 348, 349, 350. claims cases in departments, 9 353. patent cases, 9 353. INDEX. FIELD DEPUTY MAESHALS, 31. FILE number, each suit and all papers, process, etc., to be marked with, and noted on equity docket, Eq. B. 3, Appendix FILING, amendment on substitution of parties, Eq. E. 45, 763. decree, 1142. depositions in equity published on, 392. deposition, publication of, Eq. E. 55, 372. interrogatories, Eq. E. 58, 670, 940. pleadings, Eq. E. 1, 660. record, appeal in circuit courts of appeals, 1671. record on error, 1670. temporary restraining order, 1106. FINAL DECISIONS, of circuit court of appeals, review by certiorari, 1677. FINAL DEUBEE, see also Decree, decree pro confesso, when made, 813. FINAL HEAEING, points of law may be disposed of before, Eq. E. 29, 900. FINAL PBOCESS, issue and return of, Eq. B. 1, 822. to be served by marshal, deputy, etc., Eq. B. 15, 796. FINDINGS, 1141. FINE, collection of judgment for, 1384. costs of prosecution, 434. mitigation or remission, 1400. or remission, exception, 1402. rules and mode of providing, 1401. witnesses, officers and informers not disqualified in suits for, 334. FLOEIDA, district's, terms and places of holding court, 76, Jud. Code, Ap- pendix. FOLIO, defined, 428, 558. FOOD PEODUCTS AND FUEL, condemnation under act, 1725. district courts jurisdiction, 1725. hoarding of, prosecutions for, 1725. libel for condemnation, procedure, 1725. INDEX. Illfj FORECLOSURE of mortgages, etc., decree for balance due, Eq. B. 10, 9 1140. FOREIGN CITIZENS, see Alien*. FOREIGN CONSULS, see also Consuls, jurisdiction over disputes f seamen, | 108, 109, 110. FOREIGN COUNTRY, deposition on letters rogatory, 393. depositions to be used in, 394. extradition from, 1300. extradition of fugitive from place under control of United States, | 1303. FOREIGN LAWS, evidence of, 274. FOREIGN LETTERS PATENT, copies as evidence, SOL FOREIGN LETTERS ROGATOY, witness fees, 421. FOREIGN RECORDS, filed in Department Offices relating to Land Titles in United States, copies as evidence, i 276. FORFEITURE OF ESTATES, none in criminal cases, S 1*04, FORFEITURES, copyright laws, limitations, 241. damage suits for false claims against United States, limitations, 242. statutes of limitation, 238, 239. venue, SI 76, 79. witnesses, officers and informers not disqualified in suits for, 9 334. FORMA PAUPERIS* proceeding in, on appeal, 9 1668. see also Indigent Parties. FORMER DEPOSITIONS, etc., may be used before master, Eq. B. 64, 9 1063. FORMS, account before master, Eq. R. 63, 1063, 1065. affidavit of, prejudice, for removal, form 18, 9 200. return of subpoena for defendant in equity, 9 798. allowance of appeal, 1658. alternative prayer for specific relief may be in, Eq. R. 25, 9 698. amount in controversy, issue as to, allegation, 9 181. 1120 INDEX* FORMS (Continued). amount in controversy (continued). good faith, issue as to, allegation, 181. answer, equity, rule as to, 965. law, conforms to state law, 540, 543. appeal, allowance of, 1658. assignment of errors, 1661. bond on, { 1664. bond circuit court of appeals, 8th Circuit, Addenda "Rule 45 C. C. A. Appendix. briefs, circuit court of appeals, Rule 21 C. C. A. (6th Circuit) Appendix. citation on, 1664. motion to dismiss, 1688. notice of motion to dismiss, 1688. petition for, 1658. appearance bond on writ of error in criminal cases, Addenda to Rule 37 C. C. A. (5th Circuit) Appendix, assignment of errors, 1661, 1662. assignor's residence and citizenship, allegation of, 97. citizenship of parties, 694. bill of review, 1182. bond, appeal, 1664. appearance on writ of error in criminal cases. Addenda to Rule 37 C. C. A. (5th Circuit) Appendix. circuit court of appeals, 8th circuit Addenda Rule 45 C. C. A. Appendix. removal, for, form 12, 196. notice of bond, form 13, i 198. briefs, circuit court of appeals, Rule 21 C. C. A. (6th Circuit) Appendix, certificate, clerk's, with record on removal, 198. officers to deposition de bene esse, 379. questions by circuit judges to Supreme Court, 1678. eertiorari, diminution of record, 1689. order for, in suit against revenue officers for removal from state courts, form 21, 212. petition and order for writ of, 1677. same in action against revenue officers for removal from state court, form 20, f 210. INDEX. 1121 FORMS (Continued). oertiorari (continued). removal on ground of prejudice or local influence, form 19, 200. revenue officers, removal of suits against, form 22, 1214. writ of, under 39 Judicial Code in removal of cases, form 23, 214. circuit court of appeals, see Appeal herein above. bond 8th circuit, Addenda Rule 45 C. C. A. Appendix. briefs, Rule 21 C. C. A. (6th Circuit) Appendix. certificate of questions to Supreme Court, 1678. citation on appeal, 1663. 8th circuit Addenda Rule 46 C. C. A. Appendix citizenship, answer setting up lack of diversity of, 159. assignor of plaintiff, allegation of, 97. bill in equity, parties to, 694. corporations, allegations of, 144, 694. motion to dismiss for lack of diversity of, 159. clerk's certificate with record on removal, 198. complaint at law, 474. conforms to state law, 451. corporations, citizenship and residence of, allegations of, 144, 694. counterclaim in equity, rule as to, 980. criminal cases, appearance bond on writ of error to circuit court of appeals. Addenda to Rule 37 C. C. A. (5th Circuit) Appendix. indictments, defects in form may b disregarded when immaterial, 5 1244. nary court-martial, law as to indictment, 1242. perjury, law aa to indictment, 1240. subornation of perjury, law as to indictment, 5 1241 decree, equity suits, rules as to, 5 1140. decree, injunction, 1122. decree on motion to dismiss, 891. defensive pleading at law conforms to state law. 540. 543. deposition, certificate of officer to deposition de bcne use, 379. de bene esse deposition, 379. equity rule as to, 5 380. notice of taking, | 377. diminution of record, certiorari, 1689. diverse citizenship, see "citizenship" abore. answer setting up lack of, 159. motion to dismiss for lack of, 159. equity, answer, rules s to, I 965. MI n 1 1 22 INDEX. FORMS (Continued), equity (continued). bill, citizenship and residence of parties, allegation, 694. corporation's citizenship and residence, allegation, 144, 694. decree, rules as to, 1140. deposition, 379, 380. process, 793. returns of, rule and form, 798, 799. subpoena for defendant, 793. errors, assignment of (see also Appeal above and Writ of Error below) 1661, 1662. federal question, allegation raising issue of, 130. general verdict conforms to state law, 611. good faith of amount in controversy, allegation raising issue, 181. Hawaii, writ of error to Supreme Court of, 1680. indictment, defect in form disregarded when immaterial, 1244. navy courtmartial, law as to, 1242. perjury, law as to, 1240. subornation of perjury, law as to, 1241. initial pleading, equity, see Bill in Equity, above, 694. law, see Complaint at Law, above, 451, 474. injunction order and decree, 1122. interlocutory injunction, 1122. interrogatories, Abjections to, 952. issue, amount in controversy, allegations, 181. diverse citizenship, answer and motion to dismiss raising, 159. federal question, allegation raising, 132i good faith of amount in controversy, allegation, 181. law action, complaint, 451, 474. defensive pleading conforms to state law, 540, 543. process conforms to state practice except signatures, seal and teste, 453, 520, 522. local influence, petition for removal on ground of, form 17, 200. mandate to district court, 1690. master, accounts before, rules as to, 1065. master's order on accounting, 1062. motion to dismiss, 891. appeal, 1688. notice of, 1688. diverse citizenship, lack of, 159. venue improperly laid, 86. INDEX. 1123 FORMS (Continued). motion to remand to state court, form 24, 215. motion to strike out, 5 1002. navy court-martial indictments, law as to, 5 1242. notice, appeal, motion to dismiss, 1688. deposition, taking of, 377. removal, form 16, 198. of petition and bond, form 13, 9 198. objections to interrogatories, 952. order for, 9 198. allowance of appeal, 1658. allowance of writ of error to state court, 1609. order of master, an accounting, 1062. remanding, form 25, 215. removal, form 14, 198. supersedeas on appeal,, 1666. writ of certiorari, 1677. writ of error to state court, 1809. perjury, indictment for, law as to, 1240. perpetual injunction, $ 1122. petition, appeal, 1658. certiorari, diminution of record, 1689. for writ of, 1677. notice of petition and bonds, form 13, 198. removal, certiorari, for, against revenue officers, form 20, 210. citizen against alien, form 8, 9 195. federal question, on ground of, forms 1, 3, 4, 9 195. local influence, on ground of, form 17, 200. nonresident plaintiff against nonresident defendant, form 5, 9 195. notice of petition, form 13, 9 198. prejudice, on ground of, form 17, 9 200. resident plaintiff against alien defendant, form 9, 9 195. resident plaintiff against defendant and a resident defendant who has disclaimed, form 7, 9 195. resident plaintiff against nonresident defendant, form 6, 9 195. separable controversy, form 10, 9 195. after dismissal of suits against other defendants, form 11, 9195. writ of error to state court, 9 1609. writ, order allowing writ. 5 1609. pleadings circuit court of appeals, Rule 21 0. C. A. (fith Circuit) Appendix. 1124 INDEX. FORMS (Continued). preeipe for subpoena, 79"2. prejudice, petition for removal on ground of, form 17. 200. printed records, circuit court of appeals, Rule 26 C. C. A. Appendix, process in equity, 793, 799. rule as to, 911. return of, 798. rule as to, 791. process at law conforms to state practice except signatures, seal and teste, 453, 520, 522. question, federal, issue as to, allegations of, 132. record, circuit court of appeals, Eule 21 C. C. A. (6th Circuit) Appendix. printed, Rule 26 C. C. A. Appendix. clerk's certificate with record on. removal, form 15, 198. remanding to state court, motion and order for, 215. removal, affidavit of prejudice, form 18, 200. bond on, form 12, 196. certiorari, petition for, in action against revenue officers, form 20, 305. citizen against alien, petition, form 8, 195. clerk's certificate with record, form 15, 198. federal questions, petitions on ground of, forms 1, 3, 4, 290. motion to remand on ground of no jurisdiction under, 37, Judicial Code, form 24, 215. removal, notice of, form 16, 198. petition and bond for, form 13, 293. order for, form 14, 293. remanding, form 25, 310. petitions, certiorari in actions against revenue officers, form 20, 305. citizens against alien, form 8, 195. federal question, on ground of, forms 1, 3, 4, 195. local influence, on ground of, form 17, 295. nonresident plaintiff against nonresident defendant, form 5, 195. notice of petition and bonds, form 13, 198. .prejudice, on ground of, form 17, 295. resident plaintiff against alien defendant, form 9. 195. resident plaintiff against defendant and resident defendant who has disclaimed, form 7, 195. resident plaintiff against nonresident defendant, form 6, 195. separable controversy, form 10, 195. after dismissal of suit against other defendants, form 11, 195. INDEX. 1125 FORMS (Continued), removal (continued), petitions (continued), verification of petition by attorney, form 2, 195. writ of certiorari for removal in action against revenue officers, form 21, 212. order for, form 22, 214. petition for, form 20, 210. writ of error to state court, 339. writ of certiorari for removal on ground of prejudice or local in- fluence, form 19, 200. writ of certiorari, under 39, Judicial Code, form 23, 9 214, writ of error to state court, 339. order allowing writ, 339. residence, assignor of plaintiff, allegation of, 97. corporations, allegations of, 144. parties to bill in equity, allegations of, 694. return of subpoena for defendant in equity, 798. rules as to, 9 799. return of writ of error, 8th circuit, Addenda to Rule 45 C. C. A. Appendix, separable controversy. petition for removal of, form 10, 9 195. petition for removal of, after dismissal of suits against other defend- ants, form 11, 9 195. etoff in equity, rule as to, 9 980. subornation of perjury, indictment for, law as to, 9 1241. subpoena for defendant in equity, 9 793. precipe for, 792. return of, 9 798. supersedeas order on appeal, 9 1866. technical, of pleadings abrogated, Bq. R. 18, 9 690, 960, 965. venue, answer, allegations in, as to improper, 9 89. corporation's, allegations of, 9 86. motion to dismiss for improper, 9 86. writ of certiorari, diminution of record, 9 1689. petition and order for, 9 1677. removal of causes, local influence or prejudice, form 19, 9 200. revenue officers, suits against, petition for, form 20. 210. order for, form 21. 214. writ of, form 22. 5 214. under 9 39, Judicial Code, form 23. 214. 1126 INDEX. FORMS (Continued), writ of error, clerk's certificate to transcript, 1670. circuit court of appeals, 8th circuit, Addenda Rule 45 C. C. A. Appendix, criminal cases, appearance bond on error to circuit court of appeals, Addenda to Rule 37 C. C. A. (5th Circuit) Appendix. Hawaii, to supreme court of, 1680. return of, 8th circuit, Addenda to Rule 45 C. C. A. Appendix, state court to, order allowing writ, 1609. petition for writ, 1609. writ, 1609. writ of mandate to district court on reversal, 1690. FORTIFICATIONS, condemnation of land for, 1727. renue of prosecutions for injury to, 83. FRAUD, how alleged in bill, 696. removal of causes, ground for remanding or dismissal, 215. FUEL. See Food Products and Fuel, 1725. & GARNISHES, see also Garnishment, issue by, 508. judgment against, 500. GARNISHMENT, see also Attachment. effect of, 505. general statement, 504. government suits against corporations, 510. same, issue tendered when garniahee denies, 511. same, garnishee in contempt on failing to appear, 512, issue by garnishee, 508. judgment against garnishee, 509. law actions, 452, ch. 17. notice of, 506. persons subject to, 507. postal suits against delinquents, 501. property subject to, 507. state laws, adoption, 480. INDEX. 1127 GENERAL APPRAISERS, BOARD OP, | 1451. GENERAL DENIAL, answer to avoid, Eq. R. 30, 5 964. GENUINENESS, demand to admit, 940. of documents, admission of, etc., Eq. R. 58, 5 670, 940. GEORGIA DISTRICTS, terms, and places holding court, {77, Jud. Code, Appendix. GOOD FAITH, of amount in controversy, an issue, 5 181. GOVERNMENT, see also United States, credits in, 1709. postal suits, S 1710. execution, imprisonment for debt, 638. 639. execution purchase by government on sale of real estate, J 643. interest in postal suits, 1711. paramount title does not affect possessory action mining titles, 310. suits against corporations garnishment, 510, 512. GRAND JUROR, fees of, 55 425, 426, GRAND JURY, eh. 60. discharge of, 5 1223. foreman of, 1222. indictment to be by at least twelve jurors, i 1224. number of, i 1221. when summoned, 1220. GROUNDS, depositions, equity, 374. jurisdiction, see Grounds of Jurisdiction, removal of causes, ch. 9, $ 190. see that heading. GROUNDS OP JURISDICTION, bill in equity, allegations of, $ 695. complaint at law, allegations of, 5 471. diverse citizenship, ch. 7. federal question is, ch. 6, 125. GUARDIAN, as party, Eq. R. 37, $ 710. GUARDIANS, 151. 1128 INDEX. / H. HABEAS CORPUS, ch. 64. allowance of writ, 1335. / amendment of return, 1340. application, how made, 1334. Civil Eight Cases, removal, 208. congressional officers, removal of suits against, 214L counter allegation on return, 1340. constitutional provision, 1330. courts authorized to issue, 1331. Custody of prisoners, circuit court of appeals, Rule 33 C. C. A. Appendix. Bule 31 C. C. A. (3d and 7th Circuits) Appendix. Rule 32 C. C. A. (6th Circuit) Appendix, direction of writ, 1335. disposition of party, 1341. federal cases where it will issue, 1333. hearing, day for, 1339. summary, 1341. issuance of writs, 1335. judges, power to grant writs, 1332, jurisdiction to grant, 1331, 1333. law of nations, involved, 1342. notice when law of nations involved, 1349. person, producing of, 1338. removal of causes, 208, 212. revenue officers, removal of suits against, f 218. return, amendment, 1340. denial of, 1340. form of, 1337. time of, 1336. summary hearing, 1341. time, return of writ, 1330. writ, form of return, 1337. return of, 1336, 1340. time of return of, 1336. BARBOR IMPROVEMENTS, condemnation of land for, 1728. f I ARBORS, jurisdiction of district court to remove obstructions, 102. HAWAII, appeal and error to supreme court, 1561. appellate procedure, supreme court of, to United States Supreme Court, S 1680. INDEX. 1129 HEARING, answer as a plea, 901. anti-trust cases before master, public, 398. bill and answer, 969. calendar, ch. 49. See Calendar, Rule 22 C. C. A. (6th Circuit) Appendix, causes, notice of interlocutory orders for, Eq. R. 6, 822. circuit court of appeals, Rule 42 C. C. A. (8th Circuit) Appendix, criminal cases, monthly adjournments to expedite, 51. defenses before trial, Eq. R, 29, 900. extradition, evidence on, 1307. extradition of fugitive from foreign country or territory under control of the United States, 1304, 1305. public, 1305. on land, 1305. final, points of law may be disposed of before, Eq. B. 29, { 900. habeas corpus, day for, 1339. summary, 5 1341. master, reference to, 1062. motion days to be established, 821. motion to dismiss, Eq. R. 29, 880, 900. to strike defense, 673. on exceptions to report of master, Eq. R. 66, 1070. on merits, making and directing interlocutory motions, orders, rules, etc., preparatory to, Eq. R. 1, \ 822. plea in answer, 901. reference to master in chancery, 1062. temporary restraining orders, precedence of, Eq. R. 73, f 1104. trial calendar equity, | 676. HEIR, as party to suits to execute trusts of will, Eq. R. 41, \ 722. HOARDING, food products and fuel, 1725. HOLIDAYS, computation of time, Eq. R. 80, Appendix, legal, clerk's office not open, Eq. R. 2, Appendix. I. EDAHO, districts, terms and places of holding court, | 78, Jud. Code, Appendix. ILLINOIS, districts, term* and places of holding court, S 79, Jud. Code Appendix. IMMIGRATION LAWS, jurisdiction under, 96. venue of prosecutions, 9 86. 1130 INDEX. IMMUNITY, anti-trust laws, witnesses, 335. commerce laws, witnesses, J 335. Congress witnesses testifying before, 337. criminal cases, witnesses, 335, 336. judicial proceedings, witnesses in, 297. removal by writ of error to state court of decision against, 1607. witnesses, commerce and anti-trust laws, 335. witnesses, criminal cases, 335, 336. witnesses, testimony given before Congress, I 337. IMPAIRING OBLIGATION OF CONTRACT, federal question, 124. IMPANELING JURY, law actions, 589. IMPERTINENCE, exceptions to answer, for, shall not obtain, Eq. R. 21. 930. IMPERTINENT MATTER, answer in equity, motion to strike from, 9(57. equity suits, removal of, 930. illustration of, i 931. motion to strike, i 930. IMPRISONMENT, see also Confinement. offenders against United States, 1260. IMPRISONMENT FOR DEBT, execution, state laws adopted, | 63ft. suit by government, f 638, 639. INCOME TAX LAW, compulsory attendance of witnesses, 9 358. jurisdiction district court, i 113. INCOMPETENT, costs, court deals with, Eq. R. 51, 381. costs on taking deposition, Eq. R. 51, || 381, 382. see Competence, Immunity. INDEBTEDNESS DUE GOVERNMENT, settlement of court of claims, S 1432. INDEPENDENT SUIT IN EQUITY, answer in equity, counterclaim, 982. JNDEi. H31 INDEX, judgments law action, | 626. INDIANA, districts, terms and places of holding court, 9 80, Jnd. Code, Appendix. INDIAN AFFAIRS, copies of the commissioner's records as evidence, 299. INDIAN RESERVATION, crimes on, in South Dakota, 106. INDIANS, diverse citizenship, not citizens, | 153. patents, statute of limitations, 8 247. INDIAN TREATIES, claims under, court of claims, no jurisdiction, 9 1432. INDICES, of equity docket, order book, and equity journal, clerk to keep, Eq. R. 3, Appendix. INDICTMENT, ch. 61. capital crimes, accused entitled to counsel and to compel witnesses, S 1716. consolidation of charges, 1243. defect of form, S 1244. demurrer, judgment respondeat ouster, 1245. grand jury by, 1224. navy court-martial, 1242. perjury, 9 1240. subornation of perjury, | 1241. INDIGENT, convicts, discharge of, when imprisoned for fines, 1385. prisoners, extradition, witness for, J 1306. INDIGENT DEFENDANT, witnesses, subpoena for, on behalf of, 345, 405. INDIGENT PARTIES, costs and fees, 404. process, suits in forma pantperis, 9 528. witness fees of indigent defendant in criminal cases, 9 405. INFANTS, guardians ad Mem for, 9 151. nominal parties in suits not against. Eq. R. 40, 9 721. nothing to be taken against as confessed, Eq. R. 30, 9 984. INFORMERS, witnesses, not disqualified as in suits for fines, penalties, or forfeitures, 9 334. 1132 INDEX. INFRINGEMENT OF COPYRIGHTS, statutes of limitations, 251, INFRINGEMENT OF PATENT, costs of suit, 438. interrogatories may test, 950. statutes of limitations, 250. trading with the enemy act, suits under, 1723. venue, 71. INFRINGEMENT SUITS, trial of, 1046. INITIAL PLEADING, see also Bill in Equity, ch. 26. at law, 451, ch. 1&. complaint, form of, 474. differences federal and state, 470. effect of beginning as suit in equity, 478. joinder legal and equitable causes, 473. jurisdictional grounds, 471. INJUNCTIONS, ch. 54. affidavit on application for preliminary, Eq. E. 73, 1103. Alaska prohibition laws, 1121. amount in suing out, 174. appeal from order granting or denying injunction against enforcement of state law, 1111. appeal pending, Eq. R. 74, 1107, 1667. appeals from district court to circuit court of appeals, 1502, appeals from final decree, Eq. R. 74, 1107, 16&7. bill to be verified, Eq. R. 73, 1103. bond suspending on appeal, Eq. R. 74, 1107, 1667. bond, temporary restraining order, 1102. Comptroller of Currency, venue, 73. contempt, court's power to punish for, 1116. damage to be shown on application for preliminary injunction, Eq. K. 73, 1103. decree, form of, 1122. dissolution temporary restraining order, 1105. dissolution order on distress warrant against officer for failure to ac- count for public moneys, 1120. distress warrant against officer for failure to account for public moneys, 1119, 1120. District of Columbia prohibition laws, 1121. enforcement of, 1112. filing temporary restraining order, 1106. INDEX. 1133 INJUNCTIONS (Continued). for specific performance provision as to, Eq. B. 8, 89 473, 1112, 1140, 1143. forms of interlocutory and perpetual, {1122. interlocutory injunctions do not issue against national banks in state courts, 1117. interlocutory, form of, 1122. Interstate Commerce Commission, venue, 82. judge, power to issue, 1101. liquor nuisance, to abate, 1121. modification temporary order, 5 1105. national banks, no interlocutory injunction against bank in state" courts, 1117. receivership, enjoinable, 1116. ne exeat, 1113. notice of injunction against enforcement state laws, 1110. notice temporary restraining order, 1103. notice required for preliminary, Eq. E. 73, 822, 1103. order for preliminary injunction, see Restraining Order, pending appeal, 1667. perpetual, form of, 1122. preliminary, and temporary restraining orders, Eq. B. 73, 1103. preliminary injunctions, 1102, 1117. procedure, order granted without notice, 1104. order on distress warrant against officer for failure to account for public money, 1119, 1120. prohibition laws restraining violation of, 9 1121. receivership of national banks, against, 1116. tcvre facias, 1114. state court, staying proceedings of, 1108. interlocutory injunction not to issue in, against national banks, 1117. state laws, hearing application for injunction against enforcement, 1110. state laws, against enforcement of, 1109. tax, Injunction does not issue against assessment or collection, 1118. temporary restraining order, bond, 1102. dissolution, 1105. filing, 1106. national bank, none in state court, 1117. notice, 1103. yenue, Interstate Commerce Commission, 82. 1134 INJUNCTIONS (Continued), writ ne exeat, 1113. writ soirc facias, 1114. INSPECTION and production of documents, etc., Eq. E. 58, 51 670, 940. bill of particulars not a substitute for, 923. INSTRUCTIONS, trial, law actions, 599. INSTRUCTIONS AS TO APPLICATIONS FOR WRITS OF CERTIORARI, by clerk of Supreme Court immediately preceding Supreme Court rules in our Appendix, p, 813. INSUFFICIENCY, answer, how tested, Eq. R. 33, eh. 46, 968. Bill, motion to dismiss, Eq. R. 29, 880, 900. of fact, defense of, how presented, Eq. R. 29, 880, 900. INSURANCE, . 1 bureau of war risk, see Bureau of War Risk Insurance, 1724. Bureau of War Risk, compelling attendance of witnesses, 361. INSURRECTION, seizure for, renue, 79. INSURRECTIONARY, property condemnation of, renue, 78. INTEREST, allowance on judgments, 623. circuit court of appeals, Rule 26, C. C. A. (6th Circuit) Appendix. Rule 28 C. C. A. (3d, 4th, 7th Circuits) Appendix. Rule 30 C. C. A. (1st and 3d Circuits) Appendix, court of claims, 1437. district judge, outside judge to serve, 25. duties, in suits for, 624. judgments, law actions, 623, 624. levy for, 623. money, kind payable in suits for duties, 624. rate on judgments, 623. 1 ' INTERLOCUTORY INJUNCTION, form of, 1122. national banks, none against, in state courts, 1117. INTERLOCUTORY MOTIONS, orders, rules, etc., making and 1 directing, Eq. R. 1, 822. INDEX. 1135 INTERLOCUTORY ORDERS, notice of, Eq. R. 6, 822. time for appeal from, 9 1654. INTERNAL REVENUE, statute of limitations, 234, 235. taxes, venue, 76. INTERPLEADER, insurance companies, 96. INTERPRETATION, see Construction. INTERROGATORIES, see also Discovery, 945. answer by plaintiff, motion to dismiss, 890. answer of defendant, as to matters in, 945. answer may be stricken out for failure to answer. Eq. R. 58, 9 940. attachment for failure to answer, Eq. R. 58, 670, 940. best evidence, rule applicable, 947. bill of particulars not obtainable by, 944. bill may be dismissed for failure to answer, Eq. R. 58, 670, 940. bill, separate from, 943. claimants before master examinable on, Eq. R. 65, S 1063. copies to be sent by clerk to solicitors of record, Eq. R. 58, 670, 940. corporate officer to sign, Eq. R. 58, 670, 940. court may enforce answers to, Eq. R. 58, 670, 940. evidence, best, rule applicable, 947. evidentiary matter not obtainable by, 944, 948. examination of accounting party before master on, Eq. R, 58, 9 670, 940. expert evidence, not to obtain, 949. filed separately, 943. fishing expedition, are not for a, S 949. infringement may test, 9 950. inquisitorial are improper, 9 944. material facts, 9 948. motion to dismiss on plaintiff's answer to, I 890. notice of motion to enforce answer, Eq. R. 58, 99 670. 940. objection to, form of, 9 952. objections to, provisions as to, Eq R. 58, 99 270, 670, 940. opinions, not to obtain, 9 949. pleadings, not a part, 9 942. prayer in bill does not cover, 9 943. production of papers, interrogatories as a basis for, 9 948. purpose of, 9 944. subject of, matters disclosed in answer material to plaintiff's case, 9 945. 1136 INDEX. INTEBEOGATORIES (Continued). testimony, expert, not to obtain, 949. to be answered separately and fully, in writing, under oath, and signed, Eq. R. 58, 940. waiver, answer under oath does not relieve from answering, 942, when to be answered, etc., Eq. R. 58, 670, 940. when to be filed, Eq. R. 58, 670, 940. witness, may not be directed to, 951. writings, as to, 946. written, practice as to, , to be followed in case of refusal of witness before master, examiner, etc., Eq. B. 52, 390. INTERROGATORIES IN EQUITY SUITS, by defendant, 670. by plaintiff, 662. equity, 940, 1011. time for, 662, 670. INTERSTATE, extradition, 1315. INTERSTATE COMMERCE, commerce laws, see that heading. enforcing attendance and testimony of witnesses under, 5 357. exclusive jurisdiction in federal courts, part Act Oct. 22, 1913, ch. 32, part 16, Interstate Commerce Act, 82. mandamus, 1718. testimony, enforcing in cases under, 357. witnesses, enforcing attendance and testimony, 335, 357. immunity of, 335. INTERSTATE COMMERCE COMMISSION, venue of suits affecting orders of, 82. INTERVENTION, ch. 28. counterclaim, not for, 9S4. when allowed, Eq. R. 37, 730. INTOXICATING LIQUORS, 1726. injunction against violation of prohibition laws Alaska and District of Columbia, 1121. venue of prosecutions for riolation of postal laws, 84. INVESTIGATIONS, oaths, officers to administer, 359. IOWA, districts, terms and places of holding court, 81, Jud. Code, Appendix. INDEX. 1137 IRRELEVANT MATTER, answer in equity, motion to strike from, 5 968. motion to strike, ch. 42. ISSUANCE, habeas corpus writs, | 1335. venire for jury, law actions, 590. writ of error to Supreme Court, 1660. ISSUE, amount in controversy, how raised, 181. answer in equity, 1010. answer as a plea raises what, 902, 903. bill of particulars to narrow, 924. cause at, upon filing of answer unless, etc., Eq. R. 31, 669. decree outside of, invalid, 1145. depositions in equity after, 373. diverse citizenship, how raised, 159. equity suit, 669, 675, 1010. fact in Supreme Court, how raised, 1534. federal question, how raised, 132. garnishment, 508. good faith, amount in controversy, 181. joinder of parties, provision as to, Eq. R. 37, 8 710. of subpoena, Eq. R. 12, 791-793. process in equity, 9 791. time for, in equity, 1010. ISSUE IN EQUITY, when no counterclaim or setoff, 669. when counterclaim or setoff pleaded, 675. ISSUE OF LAW, equity suits, ch. 39. J. JOINDER, causes of action, Eq. R. 26, ch. 30. legal and equitable claims not permitted to make up jurisdictional amount, 863. JOINDER OP CAUSES, ch. 16. legal and equitable, 473, 863. TOINT AND SEVERAL DEMANDS, Eq. R. 42, 723. bill in equity, 723. JOINT STOCK COMPANIES, diverse citizenship of, 145. Manual 72 1138 INDEX. JOINT SUBPOENA, Eq. E. 12, 79L JUDGE, see also Judges. chambers, Eq. E. 1, 822. chambers orders in, 53. depositions, extending time for, 1023. district, may make, direct, and award process, commissions, order, rules, etc., Eq. E. 1, 822. in chambers, orders by, to be entered in order book, Eq. E. 31, Appendix, may suspend, alter or rescind motion granted as of course by clerk, Eq. E. 5, 823. on notice, if any, may make interlocutory orders, etc., Eq. E. 6. 821. vacation orders in, 53. verification of pleadings before, Eq. E. 36, 700. JUDGES, see also District Judge. additional when designated, 22. appeal, powers and duties on, 1510. circuit, acting as district judge, 23. C. C. A. 1471. court of claims, 1430. court of customs appeals, 1452. injunctions, power to issue, 1101. law action, trial by, 459. number of district, 20. power to grant habeas corpus writs, 1302. state court, duty in removal of causes, 19V. Supreme Court, 1530. trial, law actions by, 594. JUDGMENT, see also Decree Equity Suits, ch. 56. affirmed, damages and costs for delay, 1687. appellate review by writ of error, 1650. at law, see Judgment Law Actions, ch. 24, 462. bail, holding till final, 1275. court of claims, 1439. counterclaim, enforcement, 1439. effect of, 1439. reports of, to Congress and executive officers, 14?J> setoff, enforcement, 1439. criminal cases, ch. 66. default law actions, 542. equity suits, see Decree. INDEX. 1139 JUDGMENT (Continued), findings, 9 1141. fines, how collected, 1384. garnishment, 509. indictment, demurrer to, 1245. law actions, see Judgment Law Actions, below, removable by writ of error to state court, 1603. war risk insurance, 1724. JUDGMENT LAW ACTIONS, ch. 24, 462. allowance of interest on, 623. amendment of, 629. conformity to state laws, 622. duties, suits for, kind of money payable in, 624, indexes, 626. interest on, 623, 624. lien of, 627. not divested by change in district, 628. rate of interest, 623. record, index of, 625. state practice, conformity to, 622. vacation of, by motion for new trial, 630. JUDICIAL CIRCUITS, a C. A., 147fc JUDICIAL CODE, Appendix, p. 661 et sea. table of sections, Appendix, p. 1029. JUDICIAL DISTRICTS, see District, organization of, | 50. JUDICIAL NOTICE, motion to dismiss on, 889. taken of the seal of the Department of Commerce and Labor, 5 307. JUDICIAL OFFICERS, see Leadings of various courts and various officers and next below, ch. i appointment, disqualification for, 27. district court, assistant district attorney, 35. 1140 INDEX. JUDICIAL OFFICERS (Continued), district court (continued). attorney, admission of, 56. bailiff, 32. circuit judge acting for district judge, $ 23. clerk, 28. commissioners, 35. criers, 32. deputy clerks, 28. deputy marshal, 30. district attorney, 33. field deputy marshals, $ 31. marshals, 29. JUDICIAL POWER, state sued, llth Amend. Const., i 3. JUDICIAL POWER FEDERAL COURTS, constitutional provisions, 1, 3. limitation of, i 2. JUDICIAL PROCEEDINGS, see, also, Procedure, Pleadings, witnesses, see that heading, ch. 12, immunity of, see Immunity. JUDICIAL RECORDS, copies of lost or destroyed records as evidence, 280 JURISDICTION, see also headings various courts. agriculture, district court, 91. alien enemies, district court, 99. duties of marshal, 100. aliens against federal officers, removal, 206. amending to show, 179. amount in controversy how affects, ch. 8. how affected by aggregating amounts, 178. appellate, circuit court of appeals, see that heading, ch. 71. appellate, district court, see that heading, 104 et seq. appellate jurisdiction, Chinese exclusion laws, district court, 101. consular awards, district court > 106. Supreme Court, see that heading, ch. 73. Yellowstone National Park, district court, 105. arbitration disputes, common carriers and employees, 114. arrest of seamen on application of consul, 108. assignment, by, 97. awards of consuls, power to enforce, 107. INDEX. 1141 JURISDICTION (Continued). basis of, diverse citizenship, ch. 7. federal question, ch. 6. bias as a ground for removal from state court, 5 191, 200. bill in equity, allegations of grounds of, 695. canals, to remove obstructions, district court, 102. carrier, employers' liability not removable to federal court, 204. ccrtiorari in removal cases, 212. change of citizenship to create, 156. change of domicile after suit, 155. Chinese exclusion laws, 104. circuit court of appeals, see Appellate Jurisdiction of Circuit Court of Appeals, ch. 71. civil rights casee, 207. commitment of seamen on application of consul, 109. concurrent district and state courts, 93. congressional officers, removal of suits against, 209. constitutional question, ground for, 124. consular awards, power to enforce, 107. consuls, foreign, over disputes between seamen, 108. court of claims, see subhead jurisdiction under heading Court of Claims, 1 1432. court of customs appeals, 1454. courts established by Cocgress, 3. crimes on Indian reservations, South Dakota, 9 106. criminal, ch. 59. criminal, of district court, 1200. customs duties, 101. district court, appellate, 90, 104, 105, 107. concurrent, 90, 93. criminal, 2.1 OD. exclusive, 91, 92. generally, ch. 5, 90. in general, 190. original, 90, 94. original and appellate, ch. 5, 90. see Appellate Jurisdiction District Court, discharge from arrest, of seamen, 110. diverse citizenship, a ground for, ch. 7, 1. ground for removal, 191, 193. duties, district court, 101. employers' liability cases against common carriers not removable, 5 204. equitable wholly failing not retained, 863. equity, legal relief in, 861. exclusion of Chinese, f 104. 1142 INDEX. JURISDICTION (Continued). exclusive in district court, of state courts, 91, 92. exclusive, Supreme Court, 1534. federal courts in general, ch. 1. federal courts enumerated, 4. functions of, 1. limited consent cannot confer, 2. federal laws, question under, ground for, 125. federal officers, aliens against, removal, 206. oertiorari, 212. congressional, removal of suits against, 209. revenue, removal of suits against, 209. federal question as a ground of, ch. 6, 1. for removal, 126, 191, 192. original, 125. foreign consuls over disputes between seamen, 108. ground for, diverse citizenship, ch. 7, 1. federal question, eh. 6. original, federal question, 125. removal federal question, 126. grounds, law action allegations of, 471. ground on which depends to be stated in bill, Eq. R. 25, 695. habeas corpus writs, 1331, 1333. harbors, to remove obstructions, 102. immigration laws, prosecutions, 96. income tax law, 113. Indian reservation, South Dakota, crimes on, 106. interpleader insurance companies, 95. land grants, 205. laws of United States, question under, ground of, 125. nonresident, 66. obstructions in rivers, harbors, and canals, 102. officers, aliens against, removal, 206. certiorari, 212. congressional, suits against removal, 209. revenue suits against, removal, 209. original, federal question ground for, ch. 6. diverse citizenship a ground for, ch. 7. of district court, 24, Jud. Code, 94. original of Supreme Court, 1534. parties, shifting to create, 159. prejudice as a ground for removal from state court, 191, 200. publication of process, 66. question of, what is, 1552. receiver over real property outside the district of his appointment, 6*7. INDEX. 1143 JURISDICTION (Continued), reclamation act, 10. "remedy at law" discussed, 267, Jd. Code, eh. 37. removable by writ of error to state court of last resort, see that heading, 9 1601. removal of causes, see also that heading, class 1, federal question, 192. 2, diverse citizenship, 193. 3, separable controversy, 194. 4, bias or prejudice, 200. 5, land grants of different states, 205. 6, aliens against federal officers, 206. 7, civil rights cases, 207. 8, cases against congressional and revenue officers, S 209. restraining to afford complete relief, 861. revenue officers, removal of causes against, S 209. rivers, obstructions in, 102. seamen, foreign consuls over, 108, 109. separable controversy, removal of, 191, 194. shifting .parties to create, 157. South Dakota, Indian reservation, crimes on, 106. state court's, concurrent with district, 93. exclusive of, in district court, 91, 92. after removal, 197. substituted service, 66. Supreme Court, see Appellate Jurisdiction of the Supreme Court, ch. 73. exclusive, 1534. original, 1534. territorial, see Venue, ch. 4. see Places of Holding District Court, ch. 5, Jud. Code, Appendix. cases transferred, 111. trading with the enemy act, 1719. transfer of subject matter to create, 156. transferred cases from territorial courts, 111. treaties, question under, ground for, 125. venue as affecting in case of diverse citizenship, S 158. venue or district of suit, ch. 4. war risk insurance, 1724. waiving jurisdiction as to venue, 86. white slave traffic, 103. writ of error under, 237, Jud. Code, 1601. Yellowstone National Park, 105. JURISDICTION OP DISTRICT COURTS, ch. 5. 24. -Tod. Code. equitable as distinguished from legal, 55, 6. federal as distinguished from state, 10. 1144 INDEX. JURORS, fees of, grand jurors, 425. list of, to be given person indicted of treason or capital offense, 1363. payment, how made, 426. petit jurors, 425. JURY, challenges, in law actions, 593. charge to, in law actions, 461, 599. conduct of trial in law actions, 598. constitutional in law actions, twelve men, 583. criminal cases, 1224. drawing in law actions, 588. equity, in, 5, 862. excluding, penalty under civil rights acts, 586. exemptions of, after one term of service in a year, 587. under civil rights acts, 585. grand, ch. 60. grand jury, see that heading, 12-20, 1224. impaneling in law actions, 589. instructions to, in law actions, 599. petit juries, law actions, 581, 593. qualifications in law actions, 593. penalty for exclusion, 586. under civil rights acts, 585. return of venire, 590. special, 592. Supreme Court for issues of fact, 1534. talesmen for petit. 591. trial by, at law, 458. trial, law actions, twelve men, 583. from where drawn, 588. yenire, issuance and return of, 590. verdict, law actions, 461. JURY IN EQUITY, 5, 862. JUSTICE, injunctions, power to issue, 1101. convenient administration of, joinder of causes of action to promote, Eq. R. 26, ch. 30. JUSTICES, Supreme Court, 1530. INDEX. 1145 E. KANSAS, district*, terms and places of holding court, $ 82, Jud. Code, Appendix. KENTUCKY, calling hail in, 1265. districts, terms and places of holding court in, 83, Jud. Code, Appendix. / L. LABELS, trading with the enemy act, suits under, 1722, 1723. LACHES, motion to dismiss for, 888. must be explained in bill, 696. LAND, decree for conveyance of, attachment in, Eq. B. 8, 55 473, 1112, 1140, 1143. LAND GRANTS, amount in controversy in suits involving, 5 172. removal of causes, class five, 5 205. LAND OFFICE, records, certification of copies as evidence, 5 297 LAND PATENTS, sea Patent* LAW, matters ordinarily determinate at, when arising in suit in equity, to be disposed of therein, ch. 38, Eq. R. 23, 5 860. objection on point of, in equity, i 880. points of, may be disposed of before final hearing, Eq. R. 29, 55 880, 900. LAW ACTION (Summarized ch. 15). adjournments, see Continuances, ch. 20, 5 456. amendment, nee that heading, 5 455. appellate review by writ of error, 1650. appellate procedure at law, ch. 75. attachment, see that heading, ch. 17, 5 452, begun when, 5 521. charge to jury, 461. complaint, ch. 16, 5 474. conduct of trial, 598. conformity to state practice, | 7. consolidation, 570. continuances, ch. 20. 1146 INDEX. LAW ACTION (Continued), default, 542. defensive pleading, see Defensive Pleading Law, ch. 19. depositions, see that heading, ch. 13, 416. time for taking, 371. differences law and equity, 6. discovery, 571. dismissal, 573. equitable defense, 545. equity, filed in ; transferred, ch. 37. equity suit, begun as, transfer, Eq. R. 22, ch. 37, 5, 472, 474. evidence, see that heading, eh. 11, 460. execution, see that heading, ch. 24, 593. form of complaint, 474. garnishment, see that heading, ch. 17, 452. initial pleading, see that heading, ch. 16, 451, judge, trial by, 459, 594. judgment, see that heading, ch. 24, 426. jury, charge to, 461. jury trial, 458, 581, 593. jury verdict, 461. method of trial, 581. mode" of proof in, 595. motion for new trial, 613. new trial, 462. motion for, 613. nonsuit, 573. process, see that heading, ch. 18, 483. rules governing, 57. summary, ch. 15. Supreme Court, action in 1 , issues of fact, 1534. trial, see Trial Law Actions, ch. 22* trial by judge, 459. jury, 458. verdict, ch. 23, 461, 611. witnesses, see that heading, ch. 12, 460. LAW ACTIONS, adequate remedy, ch. 37. LAW LIBRARY, see Library. LAW OF NATIONS, habeas corpus, 1343. LAW PROCEDURE, see Law Actions, and Procedure LAW SIDE, motion to transfer from equity, 840. INDEX. 1147 LAWS OF THE UNITED STATES, see, also, Federal Laws, federal question arising under, 125. LAWYERS, see Attorneys. LEAVE OF COURT, receivers, suits against, without, I 1082. LEGAL ISSUES, equity wholly failing, not determined in equity, 863. LEGAL RELIEF IN AN EQUITY SUIT, ch. 38, 860. LETTER, call for admission of genuineness of, etc., Eq. R. 58, 670, 940. LETTERS, seizure and detention of, carried contrary to law, 1716. same, disposal of, 9 1717. LETTERS ROGATORY, depositions in foreign country, 393. LIBEL, condemnation food products and fuel, 1725. LIBRARY, circuit court of appeals, Rule 31 C. C. A. (6th Circuit) Appendix. Bale 33 C. C. A. (7th Circuit) Appendix. LIEN, attachment, 490. decree equity suits, 1144. decree, not divested by creation of new district or division, 1147. enforcement of, venue, 5 70. execution, not divested by formation of new district, 8 628. judgment law actions, 627. not divested by creation of new district, 628. venue, 66. vessel for repairs, etc., 1714, 1715. LIMITATION OF ATTACHMENT, claim to property in alien property custodian, 513. LIMITATIONS, see Statute of Limitations, ch. 10. LIQUOR NUISANCE, injunction abating, H2L LITTLE AND BROWN'S EDITION, federal laws, evi.ience, 271. same, supplement Revised Statutes, 272. 1148 INDEX. LOCAL SUIT, venue of, subject-matter partly within different districts, 65. venue of, against defendant in different district, same state, 64. LOSS, immediate and irreparable, to be shown on application for temporary restraining order, Eq. R. 73, 1103. LOST OE DESTROYED JUDICIAL RECORDS, copies as Evidence, see Res- toration of Records, 280. LOST RETURNS AND OFFICIAL PAPERS, judicial officers, copies as evi- dence, 2-84. LOST SUPREME COURT RECORD, copies as evidence, 282. LOUISIANA, district, terms and places of holding court, 84, Jud. Code, Appendix. LUNATIC, nothing to be taken against aa confessed, Eq. K. 30, 964. M. MAILING, orders -without notice, Eq. B. 4, 825. MAINE, districts, terms and places of holding court, 85, Jud. Code, Appendix. MAINTENANCE, court of claims, 1430. MAKING UP RECORDS, circuit court of appeals, Addenda Rule 45 C. C. A. Appendix. MANDAMUS, circuit court of appeals, Rule 33 C. C. A. (6th Circuit) Appendix. error in striking out matter, not corrected by, 933. Interstate Commerce Act, 1718. Supreme Court, 1534. same, to revise and correct proceedings of lower courts, 1562. MANDATE, 1690. circuit court of appeals. Bule 32 C. C. A. Appendix. Bule 29 C. C. A. (6th Circuit) Appendix. Bule 30 C. C. A. (7th Circuit) Appendix. MANDATORY ORDEHS, compelling obedience, Eq. R. 8, 473, 1112, 1140, 1143. contempt for noncompliance, Eq. R. 8, 473, 1112, 1140, 1143. INDEX. 1149 MANNER, defensive pleading at law, 544. MARITIME, liens on vessels for repairs, etc., 1714, 171& MARRIED WOMEN, diverse citizenship of, 9 148. MARSHAL, circuit court of appeals, Rule 6 C. C. A. Appendix, 1471. civil rights laws, fees of, 414. court of customs appeals, 5 1452. deputy, etc., to serve all process, except, Eq. B, 15, S 796. district court, 29, 31. duties as to alien enemies, 9 100. fees, district court, 413. Supreme Court, S 1530. MARYLAND, districts, terms and places of holding court in, 86, Jnd. Code, Appendix. MASSACHUSETTS, districts, terms and places of holding court in, S 87, Jud. Code, Appendix. MASTER, accounts, form of, before, Eq. R. 63, 1063. accounts, form of, rules as to, 1065. accounts identified in report of, Eq. R. 61, 9 1070. accounts, reference of, to, Eq. B. 69, 1061. affidavit previously used in court may be used before, Eq. R. 64, 9 1063. answer identified but not stated in report, Eq. R. 61, $ 1070. appointment, 1060. attendance of witnesses before, Eq. R. 52, 9 380. bankruptcy matters, 1074. books produced before, Eq. R. 62, 1063. charge identified in report, Eq. B. 61, 1070. claimants before, may be examined by him, Eq. B. 65, S 1063. compensation, Eq. B. 68, 1060. conclusions on facts presumed correct, 9 1073. confirmation of report, 1072. contempt, witness in for refusing to appear before, Eq. B. 52, 9 390. costs on reference to, Eq. R. 59,98 1061, 1070. court may appoint standing, Eq. R. 68, 8 1060. delays, reasons for to be certified by, Eq. R. 60, 1062. depositions in case may be used before master, Eq. B. 64, 9 1063. depositions may be taken by, Eq. R. 52. 9 390. draft report, exceptions to not sufficient as objections to report as filed, 9 1071. 1150 INDEX. MASTER (Continued). duties of. Eq. R. 60, 1062. entitled to attachment for his compensation, when, Eq. R. 68, 1060. evidence before, to be taken down, Eq. R. 65, 1063. evidence, mode of proof directed by master, Eq. R. 62, 1063. exceptional matters, referred to, illustration, 1064. exceptions to report, 1070, 1071. former depositions, etc., may be used before, Eq. R. 64, 1063. form of accounts before, Eq. R. 63, 1063. form of order on accounting, 1062. hearing of reference, 1062. hearings public in anti-trust cases, 396. in chancery, standing, may be appointed by the court, Eq. R. 68, 35. interrogatories on accounting, Eq. R. 58, 670, 940. may adjourn examination, etc., when, Eq. R. 60, 1062. may proceed ex parte when, Eq. R. 60, 1062. may require production of all books, papers, etc., Eq. R. 62, 1063. method of proceedings, 1062. notice of proceedings before, Eq. R. 60, 1062. not to retain report as security for compensation, Eq. R. 68, 1060. order an accounting, form of, 1062. - power of, Eq. R. 62, 1063. proceedings before, Eq. R. 60, 1062. pro hoc vice, in particular cases, may be appointed by court, Eq. B. 68, 1060. reference by consent, effect of, 1075. reference to, exceptional not usual, Eq. R. 59, 1061. regulation of proceedings, 1063. report, after filing, plaintiff may not voluntarily dismiss, 1130. report when reference by consent, effect of, 1075. report returned to office of clerk, Eq. R. 66, 1070. reports of identify but do not state affidavit, etc., Eq. R. 61, 1070. to proceed with reasonable diligence, Eq. R. 60, 1062. to regulate all proceedings before him, Eq. R. 62, 1063. witnesses, attendance before, Eq. R. 52, 390. MASTERS IN CHANCERY, eh. 50, see heading Master, above. MASTER'S REPORT, ch. 52, costs on exception to, Eq. R. 67, 1070. depositions not set forth but referred to, Eq. R. 61, 1070. return of exceptions hearing, Eq. R. 66, 1070. MATERIAL SUPPLEMENTAL, matter may be set forth in amended plead- ings, Eq. B. 19, 760. INDEX. 1 ] ;, 1 MATERIALITY OF QUESTIONS not to be decided by examiner, Eq 8 51 9381. MATTER, further and better particulars of, in any pleading may be ordered, En R. 20, ch. 41, 967. new or affirmative, in answer, deemed denied by plaintiff, Eq. R. 31, ch. 47. MATTERS ordinarily determinate at law, when arising in suit in equity, to be disposed of therein, Eq. R. 23, ch. 38. MERITS, hearing on making and directing interlocutory motions, orders, rules, etc., preparatory to, Eq. R. 1, 822. MESNE PROCESS, issuing and returning, Eq. R. 1, 822. motions for, grantable by clerk, Eq. R. 5, 823. subpoena shall constitute proper, Eq. R. 7, 790. to be served by marshal, deputy, etc., Eq. R. 15, { 798. MESSENGERS, Supreme Court, 1530. METHOD, appeals, taking of, circuit court of appeals. Addenda Rule 45 C. C. A. Appendix, master in chancery proceedings, | 1063. trial, law actions, 581, 582. MICHIGAN, districts, terms and places of holding court, 9 88, Jud. Code, Appendix. MILEAGE, amount of, for witnesses, 5 349, 350. double for witnesses, prohibited, 9 350. fees of witnesses, see Fees; Witnesses, 348, 349, 350, 353, 356. witnesses, amount and fees, 99 348, 349, 350. double prohibited, | 350. generally, 9 348, 349, 350. MILITARY TRAINING CAMPS, condemnation of land for. 5 1727. MINNESOTA, districts, term* and places of holding court, 9 89, Jud. Code, Appendix. MISCELLANEOUS MATTERS, LAW ACTIONS, ch. 21. 1152 INDEX. MISFEASANCE DEPUTY CLERK, Supreme Court, 1530. MISJOINDER, defense of, how presented, Eq. R. 29, 880, 900. see Multifariousness, ch. 30. MISSISSIPPI, districts, terms, and places of holding court, 90, Jud. Code, Appendix. * MISSOURI, districts, terms and places of holding court, 91, Jud. Code, Appendix. MISTAKES, decree, equity suits, correction of, 1160, see, also, Rehearing. MODELS, circuit court of appeals. Rule 34 C. C. A. Appendix. Rule 32 C. C. A. (3d, 7th, 8th and 9th Circuits) Appendix. MODE OF PROOF, trial, law actions, 595. MODE OF RECOVERY, costs and fees, 408. MODE OF TAKING, depositions de bene esse, 379. taking depositions de bene esse, 379. MODIFICATION, temporary restraining order, 1105. 1 Lj_ MONEY, decree for, enforced by execution, Eq. R. 8, 473, 1112, 1140, 1143. paid into court, 1712. payment of, final process to execute decree for, Eq. R. 8, 473, 1112, 1140, 1143. withdrawal of, paid into court, 1713. MONTANA, districts, term and places of holding court, 92, Jud. Code, Appendix. MORTGAGE, decree for deficiency, Eq. R. 10, 1140. MORTGAGES, foreclosure of, decree for balance due, Eq. R. 10, 1140. MOTION, See also Motions of various kinds below, and heading Motions, better statement, to obtain (equity), 920, see Bill of Particulars, 921. certainty, to obtain (equity), 920, see Bill of Particulars, 921. INDEX. 1153 MOTION (Continued). circuit court of appeals, Rule 21 C. C. A.; Rule 24 C. C. A. (6th Circuit) Appendix, defect of parties, to dismiss for (equity), 824, 880, 886, *JOO. defensive pleading in equity, see that heading, ch. 36. definiteness, to obtain, equity, 920, 922, see Bill of Particulars, 924. dismiss, to (equity), see Motion to Dismiss, below. decree pro oonfesso, saves from, 883. on point of law, ch. 39. time for answer after overruling, 667. disposal of, Eq. R. 6, 821. equity suits, see that heading, ch. 25. grantable of course (equity), 823. impertinent matter, to remove (equity), 930. irrelevant matter, to remove (equity), 930. motion day (equity), 821. motion to dismiss, see that heading, below, new trial (law), ch. 23, 613. execution stay of, pending, 633. notices (equity), 822. notice of orders (equity), 825. obtaining better statement and particulars (equity), 920. particulars to obtain (equity), 920. pro confesso, for grantable of course, Eq. R. 5, 823. produce books or papers, 572. redundant matter, to strike (equity), 5 930. removal of redundant, scandalous, or impertinent matter (equity), 930. scandal, to remove (equity), 930. statement, better and particulars (equity), $ 920. strike out, answer in equity, counterclaim or setoff, 967. counterclaim or setoff in answer in equity, 967. defense (equity), 673. redundant, scandalous, or impertinent matter (equity), MO. setoff in answer in equity, 967. transfer action to law side, 840. MOTION DAY, circuit judge may dispense with when, Eq. R. 6, 821. MOTION DAY IN EQUITY, $ 821. MOTION F.OR FURTHER AND BETTER STATEMENT OF CLAIM, Eq. R. 20, ch. 41, 55 920, 967. MOTION TO DISMISS, ch. 39. admits allegations well pleaded, 882. Manual 78 1154 INDEX. MOTION TO DISMISS (Continued), affidavits not considered on, 883 f . allegations of bill admitted on, 882. answer to be filed within five days after denied, Eq. E. 29, 880, 900. after answer to interrogatories, 890. decree from, 891. defense in bar, setting up in, 887. defenses to be presented in, Eq. E, 29, ch. 39, 880, 900. demurrer equivalent, 882, 883. denied when proof required, 883, 901. effect of, 883. evidence not considered on, 883, 901. exhibits to pleadings considered on, 883. form of, 891. form of, federal question improperly pleaded, 131. form of, improper venue, 86. form of, lack of diverse citizenship, 159. hearing, setting down for, Eq. E. 29, 880, 900. illustration of, 891. interrogatories, on answer to, 890. judicial notice in aid of, 88<9. laches, 888. nonjoinder, 886. notice of. Eq. E. 29, 880, 900. statute of limitations, plea of, 885, 891. suits pending, plea not considered on, 884. MOTION TO ENFOECE answer to interrogatories notice of, E!q. E. 58, 670, 940. MOTION TO MAKE MOEE DEFINITE AND CEETAIN, ch. 41, costs, Eq. B. 20, 920, 867. MOTION TO SET ASIDE DECEEE PEG CONFESSO, answer when to be filed on, Eq. E. 17, 813. MOTION TO STEIKE answer for failure to answer interrogatories or pro- duce documents, Eq. E. 58, 670, 940. MOTION TO STEIKE OUT, ch. 46. answer insufficient, Eq. E. 33, ch. 46, 967. form of, 1002. illustration of, 1001. notice of, 1000. INDEX. 1155 MOTION TO STRIKE REDUNDANT MATTER, ch. 42. MOTIONS, and applications not requiring order of court or judge grantable of course ^ by clerk Eq. R. 5, 823. etc., grantable of course, received and disposed of by clerk, Eq. R. 2, Appendix. ex parte or grantable of course, 821. for mesne process grantable of course by clerk, Eq. R. 5, 823. grantable of course by clerk, Eq. R. 5, 823. may be suspended, etc., by judge, Eq. R. 5, 823. interlocutory, making and directing, Eq. R. 1, 822. requiring notice and hearing, times and places for, Eq. R. 6, 821. to enlarge time for filing answer, Eq. R. 17, 813. to strike out, to test sufficiency of answer, Eq. R. 33, ch. 46, 967. when may be made, Eq. R. 1, 822. will not be granted unless payment of costs, etc., Eq. R. 17, 813. MULTIFARIOUSNESS, new Rule 26, ch. 30. N. NAME, circuit court of appeals, Rule 1 C. C. A. Appendix. 1 Rule 2 (6th Circuit) under Rule 1 C. C. A. Appendix, each party, must be stated in bill, Eq.- R. 25, 694. names of parties in subpoena, Eq. R. 12, 791. NATIONAL BANKS, Comptroller of Currency enjoining venue, 78. diverse citizenship of, 147. exempt from attachment, 480. federal question not necessarily involved when same is party, 9 123. injunction against receivership proceedings, 1116. injunction, no interlocutory against in state courts, 9 1117. organization certificates, copies as evidence, 289. receivership, injunction against, 1116. stockholder's liability statute of limitations, 9 252. NATURALIZATION LAWS, statutes of limitations for offenses against. 8237. NAVY, records, copies as evidence, in suits against delinquents, 9 291. NAVY COURT-MARTIAL, indictment, 9 1242. 1156 INDEX. NEBRASKA, districts, terms and places of holding court, 93, Jud. Code, Appendix. NECESSARIES, lien on vessel for, 1714. NB EXEAT, writ of, 1113. NEVADA, districts, terms and places of holding court, i 94, Jud. Code, Appendix. NEW DISTRICTS CREATED, venue of action, 69. liens preserved, 70. NEW HAMPSHIRE, districts, terms and places of holding court, 95, Jud. Code, Appendix. NEW JERSEY, districts, terms and places of holding court, 96, Jud. Code, Appendix. NEW MEXICO, districts, terms and places of holding court, 13, Act June 20, 1910, ch. 310 following 96, Jud. Code, Appendix. NEW TRIAL, court of claims, 1438. execution, stay of, pending motion, 633. law action, 462. motion for, 613. NEW YORK, districts, terms and places of holding court, 97, Jud. Code, Appendix. NEWLY DISCOVERED EVIDENCE, rehearing for, 1162, 1163. NOMINAL PARTIES, Eq. R. 40, 721. NONCONFORMITY STATUTES, 57. NON EST INVENTUS, return of, issuance of writ of sequestration, Eq. R. 8, 473, 1112, 1140, 1143. NONJOINDER, defense of, how presented, Eq. R. 29, 880, 900. motion to dismiss for, 886. nonresidents, 74. NONLOCAL SUITS, venue in district of more than one division, 63. venue in state of more than one district, 62. IND&X. 1157 NONRESIDENT, nonjoinder, 74. venue, 66. NONSUIT, costs against informer on penal statute, | 430. costs for defendant, 435. law action, 573. NORTH CAROLINA, copies of clerk's new records as evidence, 306. districts, terms and places of holding court in. 98, Jud. Code. Appendix. NORTH DAKOTA, districts, terms and places of holding court, 99, Jud. Code, Appendix. NOTARY PUBLIC, verification of pleadings before, Eq. B. 36, 700. NOTICE, amendment of answer, Eq. R. 30, 964. circuit court of appeals, Rule 38 C. C. A. (8th Circuit) Appendix, commissioner, depositions before, 391. defendant to take, of certain decrees, Eq. B. 8, 55 473, 1112, 1140, 1143. defensive pleading in equity, 5 821. depositions before commissioner, 5 391. de ben* esse, 5 377. examiner, 391. master, 5 391. equity suits, 5 825. orders in, 5 825. examiner, depositions before, 391. filing of statement of evidence on appeal, Eq. B. 75, 5,1671. garnishment, 5 507. habeas corpus, service on state attorney general, 5 1342. injunction against enforcement of state laws, 5 1110. interlocutory orders, etc., Eq. R. 6, 5 822. interrogatories, objecting to, 5 952. master in chancery, depositions before, 9 391. motions, Eq. R. 6, 82. motion to strike out, 1000. no preliminary injunction granted without, Eq. B. 73,51103. of motion to dismiss, Eq. R. 29, 5 880, 900. 1158 INDEX. NOTICE (Continued). of orders, Eq. R. 4, 825. orders, interlocutory, Eq. R. 6, 825. orders, equity, 958. order without prior, to be mailed by clerk to party, etc., Eq. R. 4, 825. reasonable, of amendment of answer, by leave, etc., Eq. R. 30, 964. reasonable of filing supplemental pleading, Eq. R. 34, ch. 32. reasonable, of motion to enforce answers, etc., Eq. R. 58, 670, 940. reference to master in chancery, 1062. ^ removal of causes, classes 1, 2, 3, 198. statement of evidence on appeal, Eq. R. 75, 1671. taking testimony before examiner, etc., counsel to give, Eq. R. 53, 391. temporary restraining order, 1103. to be given to parties to be substituted, Eq. R. 45, 763. to parties or solicitors of proceedings before master, Eq. R. 60, 1062. to produce books or papers, 572. NUMBER, district court's in the several states, sec Districts, ch. 5, Jud. Code, Appendix, judges in the several districts, 9 20. o. OATH, 574. See also Verification, administration of, 359. clerk, 28. court's power to administer, 1116. deputy marshals, 30. district attorneys, f 33. interrogatories, answers, Eq. R. 58, 5 670, 940. marshal districjt court, 29. ' may be made by plaintiff if special relief asked, Eq. R. 25, 700. officers empowered to administer, 359. petition for rehearing to be verified by, Eq. R. 69, 1160. stockholder's bill to be verified by, Eq. R. 27, eh. 29. OBJECTIONS, see also Exceptions, 1071. answer in equity to, 968. decree, draft of, 1142. depositions, equity rule as to, | 381. evidence, Rule 12 C. C. A. Appendix, interrogatories, Eq. B. 58, 670, 940. INDEX. 1159 OBJECTIONS (Continued). tardy/ to defect of parties, Eq. E. 44, 724, 824. to be noted by examiner, etc., Eq. R. 51, 381. to defect of parties, Eq. R. 43, { 762, 824. to evidence taken before examiner, provisions as to, Eq. R. 51. 381. OBSTRUCTIONS, in rivers, harbors and canals, jurisdiction of district court over, 102. OFFENSES, see also Crimes and Offenses, extradition, none for political, 1 1302. prosecution, method of, 1360. statutes of limitations, 231, 237. venue, 75. OFFICERS, see also Judicial Officers. aliens, against federal, removal of causes. 206. authorized to hold to security of the peace and good behavior, 1262. before whom pleadings verified, Eq. R. 36, 700. certiorari, removal of cases against congressional or revenue, 212. circuit court of appeals, Rule 6 C. C. A. Appendix, 1471. congressional, removal of causes against, 209. court of claims, 1430. depositions, de bene esse, before whom taken, 376. district court, eh. 2. executions do not issue against revenue, when, 9 632. executions do not issue against, when, 632. removal of causes against, 209. federal, see that heading. habeas corpus in suits against, 9 212. judicial, see Judicial Officers, oaths, administering, 9 359. -- question arises in suit involving federal, { 121. removal of causes against, 206 et seq. revenue, see Revenue Officers, witnesses, not disqualified as in suits for fines, penalties, or forfeitures, 1334. witness fees, court officer not entitled to, 419. OFFICIAL PAPERS, copies of lost or destroyed, as evidence, 9 284. OHIO, districts, terms and places of holding court in, 9 100, Jud. Code, Appendix. OKLAHOMA, districts, terms and places of holding court. 5 101, Jud. Codo, Appendix. 1160 INDEX. OLD RULES ABROGATED, Eq. R. 81, Appendix. OMISSIONS, correction of, in record on appeal, Eq. R. 76, 1671. in transcript on appeal correction of, Eq. R. 76, 1671. of portions of record on appeal, Eq. R. 75, 167JU OPINIONS, circuit court of appeals. Rule 28 C. C. A. Appendix. Rule 25 C. C. A. (6th Circuit) Appendix. Rule 2& C. C. A. (3d and 7th Circuits) Appendix, transcript in, on appeal or error, 1669a. ORAL ARGUMENTS, see Arguments. ORDER, see also Judgments, Decree, Injunction, Pleading, against person not party, how enforced, Eq. R. 11, 795. appellate court, Eq. R. 46, 1043. award of, by judge at chambers, etc., Eq. R. 1, 822. chambers, Eq. R. 1, 822 . defensive pleading at law, 541. enforcement of, differences law and equity, 6. filed with clerk to be noted in equity docket, Eq. R. 3, Appendix, for delivery of possession, writ of assistance on refusal to obey, Eq. R 9, 1143. form, injunction, 1122. form of master's, on accounting, 1062. grantable of course, received and disposed of by clerk, Eq. R. 2, Appendix. in favor of person not party, how enforced, Eq. R. 11, 795. interlocutory, making and directing, Eq. R. 1, 822. interlocutory, notice of, Eq. R. 6, 822. interlocutory, time for appeal from, 1502, 1654. justice or judge may make order suspending, etc., injunctions pending appeal, Eq. R. 74, 1107, 1667. made or passed by clerk, or judge in chambers, to be entered in order book, Eq. R. 3, Appendix. made without notice to be mailed by clerk, Eq. R. 4, 825. mandatory, contempt for noneompliance, Eq. R. 8, 473, 1112, 1140, 1143. mandatory, for specific performance, provision as to, Eq. R. 8, 473, 1112, 1140, 1143. master's, in accounting, form of, 1062. notice of, in equity, 825. noting of, in equity docket or entered in order book, not notice to par- ties, Eq. R. 4, 825. INDEX. 11G1 ORDER (Continued). of court to be entered in equity journal, Eq. R. 3, Appendix. preliminary injunction, see Restraining Order. process to issue to compel obedience to, Eq. R. 7, 5 1112. temporary restraining, and preliminary injunctions, Eq. R. 73, 1103 et seq. that bill be taken pro confesso on default, Eq. R. 16, 9 81L when may be made, Eq. R. 1, f 822. ORDER BOOK, clerk to keep, Eq. R. 3, Appendix, entry of order in, not notice, Eq. R. 4, 825. index of, clerk to keep, Eq. R. 3, Appendix. to contain all orders made or passed by judge in chambers or by clerk, Eq. R. 3, Appendix. OREGON, districts, terms and places of holding court, i 102, Jud. Code, Appendix. ORGANIZATION, circuit court of appeals, ch. 70. court of claims, 1430. court of customs appeals, 1452. district court, chs. 2 and 3. districts, 50. federal courts enumerated, 9 4. Supreme Court, ch. 72. ORIGINAL JURISDICTION, see Jurisdiction, district court, 99. diverse citizenship, ch. 7. federal question as a ground of, 9 125, insurance companies, 9 95. jurisdiction, 9 95. removal, ch. 9. Supreme Court, 9 1534, 1162 INDEX. P. PAMPHLET COPIES, of statutes and bound copies of acts, as evidence, 278. PAPERS AND ORDERS filed with clerk, etc., to be noted in equity docket, Eq. R. 3, Appendix. PAPERS, deposition under commission, production of, 387. motion and notice to produce, 572. production of before master, Eq. R. 62, 1063. production of, on deposition under commission, 387. PARDON, President's power, 1406. PARDON AND PAROLE, ch. 67. PAROLE, ch. 67. of prisoners, 1407. PART, of defendants not found, venue, 74. PARTICULARS, see Bill of Particulars, 922. bill of under rule 20, 920. may be ordered, Eq. R. 20, ch. 41, 812, 967. motion for, equity, &20. PARTIES, ch. 27. accounting before master, how to bring into accounts, Eq. R. 63, 1063. administrator as, Eq. R. 37, 710. allegations as to, in bill in equity, 694, 697. ambassador as, in Supreme Court, 1534. amending, 762. amendment of bill for defect in, Eq. R. 43, 762. amendments on substitution of, Eq. R. 45, 763. answer setting up defect in, proceedings on, Eq. R. 43, 824. appeal, on, 1651. banks, national, diverse citizenship of, 147. beneficiaries as, 710. bill in equity, allegations of residence and citizenship of, 69*. 697, 710. citizens District of Columbia not included in term "diverse citizenship," 142. citizens as, in Supreme Court, 1534. INDEX. 1163 PARTIES (Continued). citizenship, name and residence of each must be stated in bill, Eq. B. 25, 9694. clerk to send copies of interrogatories to, if there be no record uolicitor, Eq. B. 58, Si 670, 940. consul as, in Supreme Court, 1534. continuance for death of, 561. corporation, diverse citizenship of, 144. counterclaim not to bring in new, 984 death of, reviror, Eq. R. 45, 763. defect of, resisting objections, Eq. R. 43, 762, 824. defect of, tardy objections, proceedings on, Eq. R. 44, 724, 824. disability of, to be stated in bill, Eq. R. 25, 694. District of Columbia not a citizen, 142. diverse citizenship, 157. domestics of ambassadors, etc., as, in Supreme Court, 1534. executors and administrators as parties, 710. failing to appear before master, Eq. R. 60, 1062. federal officers as, raises a federal question, 121. generally intervention, Eq. B. 37, 730. guardian, Eq. R. 37, 710. guardians ad litem, 151. heir as, to execute trusts of will, Eq. B. 41, 722. in case of joint and several demands, Eq. B. 42, 723. infant, Eq. R. 40, 721. intervention, Eq. R. 37, 730. joinder of, Eq. R. 37, 710. may be examined on oath by master, Eq. R. 62, 1063. name to be stated in bill, Eq. B. 25, 694. new parties by amendment, 762. nominal, appearance of, Eq. R. 40, 721. nominal costs, Eq. B. 40, 721. notice to, of proceedings before master, Eq. B. 60, 9 1062. noting or entry of order not notice to, Eq. B. 4, 9 825. not ready, Rule 22 C. C. A. Appendix. orders enforced in favor of or against person not a, Eq. R. 11, 9 795. partnerships as, 146. personal representatives, 9 149. persons not made, Eq. R. 25, 9 694. process in equity for or against persona not partiRs, 9 795. procuring reference to master, payment of costs by, Eq. R. 59, 9 1061. proper, absence of persons who would be, Eq. B. 39, 99 697, 719. proper in bill, 697. public minister a*, in Supreme Court, 9 1534. 1164 INDEX. PARTIES (Continued). refusing to join may be made defendant, Eq. R. 37, 710. residence to be stated in bill, Eq. R. 25, 694. representative parties, 149, 715. reviver, Eq. R. 45, 763. servants of ambassadors, etc., as in Supreme Court, 1534. shifting to create diverse citizenship, 157. state as, in Supreme Court, 1534. stockholders as, 740. substitution, notice of, Eq. R. 45, 763. time for filing exceptions to master's report by, Eq. R. 68, 1070. to be given notice of preliminary injunctions, etc., Eq. R. 73, 822, 1103. to examine accounting party viva voce or upon interrogatory, Eq. R. 63, 1063. to give notice of taking of testimony before examiner, etc., Eq. R. 53, 391. to verify petition for rehearing by oath, Eq. R. 69, 1160. territorial citizens not included in term "diverse citizenship," 142. trustee ag, Eq. R. 37, 710. vice-consul as, in Supreme Court, 1534. when order made in absence of, clerk to mail copy, Eq. R. 4, 825. PARTNERSHIP, diverse citizenship of, 14C. PATENT CASES, attendance of witnesses, enforcing, 352. claim for unlicensed use by government, 1432. costs in infringement cases, 438. copies foreign letters as evidence, 301. cross-examination of witnesses, Eq. R. 48, 1041, 1045. enforcing attendance and testimony of witnesses in contested eases, 352. expert witnesses, l'041, 1045 infringement, tested by interrogatories, 950. statute of limitations, infringements, 250. testimony, enforcing in contested eases, 352. . trading with the enemy act, suits under, 1722, 1723. venue, infringement suits, 76. witnesses, enforcing attendance and testimony of witnesses in contested cases, 352. PATENT OFFICE, records, letters, patents, etc., copies as evidence, 300. PATENTS, INDIANS, statutes of limitations, 247. INDEX. 1165 PATENTS, LAND, statutes of limitations to vacate, | 245. PATENTS, RAILWAY, statute of limitations, 248. PATENTS, WAGON ROAD, statute of limitations, 5 40. PAYMENT, amount in controversy, effect on, 177. money into court, 1712. same, withdrawal of, 1713. PEACE, officers, authorized to hold to security of, 1262. PENAL LAWS, see Criminal Procedure, chs. 59-62. venue of prosecutions for injuries to fortifications, 83. intoxicating liquors prosecutions, venue, 84. PENAL STATUTE, costs against informer on nonsuit or discontinuance, 9 436. costs of defendant, 9 435. PENALTIES, bail in suit for, 1273. customs revenue laws, statutes of limitations, 239. federal laws, statutes of limitations, 238. special bail in suit for, 1273. venue, 76. witnesses, officers and informers not disqualified in suits for, 334. PENALTY, excluding jurors contrary to civil rights acts, 588. PENNSYLVANIA, districts, terms and places of holding court, 103, Jud. Code, Appendix. PEREMPTORY CHALLENGES, criminal cases, 1366. excessive, in criminal cases disregarded, 9 1367. PERJURY, indictment for, 9 1240. subornation of, indictment for, 9 1241. witness, does not disqualify, 9 332. PERPETUAL INJUNCTION, form of, 91122. 1166 INDEX. PERPETUATION OF TESTIMONY, deposition* under state laws, when admissible, 388. PERSONAL PROPERTY, execution, appraisal on, 644. PERSONAL REPRESENTATIVE, diverse citizenship of, 149. PERSON, see also Persons, below. appointed to serve process to make affidavit thereof, Eq. R. 15, 796. making claim before master examinable by him, Eq. R. 65, 1063. non compos, nothing to be taken against as confessed, Eq R. 30, 964. PERSONS, joining as parties, Eq. R. 37, 710. not parties, process in equity in behalf or against, 795. not made parties to bill, E'q. R. 25, 694. not parties, process on behalf of and against, Eq. R. 11, 795. producing, habeas corpus, 1338. who would be proper parties, absence of, Eq. R. 39, 697, 719. PETITION, see also Forma, subheading Petitions. court of claims, 1434. same, insufficient, 1434. rehearing, for newly discovered evidence, 1162, 1163. to revise in bankruptcy, circuit court of appeals. Rule 34 C. C. A. (6th Circuit) Appendix. Rule 36 C. C. A. (1st, 4th, and 8th Circuits) Appendix. Rule 37 C. C. A. (8th Circuit) Appendix. Rule 38 C. C. A. (2d and 4th Circuits) Appendix. PETITION FOR REHEARING, Eq. R. 69, 1160. PETIT JURIES, see also Juries. , .- talesmen for, 591. PHILIPPINE ISLANDS, appeal and error to Supreme Court, 1561. procedure on appeal from Supreme Court of, 1681. trading with the enemy act, 1720. PHYSICAL EXHIBITS, circuit court of appeals, Rule 30 C. C. A. (6th Circuit) Appendix. INDEX. 1167 PILLORY, abolished, 1405. PLACES, criminal law of the United States applicable, 9 120L executions run where, 635. execution, sale of real estate, 640. for holding district court in the various states, ch. 5, Jud. Code Appendix. see also Districts, jury, from where drawn, 588. PLAINTIFF, answer to interrogatories, motion to dismiss on, 890. dismissal by, 1130. entitled to subpoena as of course when bill filed. Eq. R. 12, 791. time within which to take deposition for, Eq. B. 47, ch. 48. voluntary dismissal by, 1130, 1131. PLEA, answer as, ch. 40, 903. answer as, dismissal of bill, 904. answer as, issue raised by, 902, 903. answer as, separate hearing, 901. in bar, defenses, formerly presentable by, to be made in answer, Eq. R. 29, 900. not guilty, standing mute, 1362. of res adjudicata as raising a federal question, 9 131. PLEA IN ABATEMENT, appeal and error, no reversal for error in, ruling on, except to jurisdiction, 9 1686. PLEA -IN BAR, motion to dismiss does not include all such, 9 883. PLEADING, see also Procedure and under headings of various lunds of pleadings, alteration in, on transfer of action at law erroneously begun as suit in equity, Eq. R. 22, ch. 37, 9 472. amended, Eq. R. 19 (9 760), 28, 29, 43, 45. amendment of on substitution of parties, Eq. R. 45. 763. amendment to set forth material supplemental matter, Eq. R. 19, 9 760. amendments, ch. 31. answer in equity, 96$. bill in equity, 9 760. defensive, at law, 678. amount in controversy, 175. 1168 INDEX. / PLEADING (Continued). answer, Eq. B. 29, 30, 900. answer as a plea, ch. 40. answer at law, see Defensive Pleading at Law, ch. 19. answer in equity, 964. is not evidence, 962. better statement, motion for, ch. 41. bill, amendment as of course 1 , Eq. B. 28 ch. 31. bill in equity, see that heading, ch. 26, 692. differences federal and state, 691. bill of review, ch. 58, U80. bill, stockholders, ch. 29. caption of equity bill, 693. cause of action, equity, 696. certainty, motion for in equity, 920, 967. citizenship of parties, equity, 694. complaint (see Initial Pleading) at law, ch. 16. complaint, equity, differences federal and state, 691. confession and avoidance no reply to, required, 1011. conformity, at law to state law, ch. 15. conformity, defensive at law to state law, eh. 19. contents bill in equity, 692. counterclaim, equity, see that heading, 980. counterclaim, Eq. B. 30, 980. court may permit any, to be amended, Eq. B. 19, 760. cross-bill matter set up in counterclaim, Eq. B. 30, 980. decree pro confesso, ch. 35. to save from, S'12. decree equity, ch. 56. default at law, 542. default in equity to save from, 812. defense, answer in equity, ch. 44. defense by motion to dismiss, Eq. B. 29, 880, 900. defensive, answer, chs. 40, 44. at law, ch. 19. motion to dismiss, ch. 39. motion to strike out, ch. 48. reply, ch. 47. time for in equity, 810. deficiency, Eq. B. 10, 1140. definite, motion to make, equity, 920, 967. demurrers abolished, matters of raised by motion to dismiss or in answer, Eq. B. 29, 900. differences between law and equity, 6. INDBX. 1169 PLEADING (Continued), differences (continued). bill in equity federal and state, 691. complaint at law, federal and state, 470. federal and state practice, 10. discovery at law, 571. answer to in equity, 940. dismissal by plaintiff, 1130. dismiss, motion to, ch. 39. effect of answer in equity, 960, 962. counterclaim or setbff in equity, 980, 982. failure to plead counterclaim or setoff, 986. equity, 5, ch. 25. equity suit, see that heading, equitable defenses law actions, 545. evidence, answer in equity is not, 962. exceptions to abolished, Eq. R. 21, 33, ch. 42, 812, 820, 968. federal question, where must appear, 129, 130. filing of, eq. R. 1, 6602. filing, or amendment of, on substitution of parties, Eq. R. 45, 763. forms, see that heading, forms technical abolished, Eq. R. 18, 690, 960, 965. answer in equity, 960. bill in equity, 690. counterclaim or setoff in equity, 980. further and better particulars of matters stated in any may be ordered, Eq. R. 20, ch. 41, 812, 967. grounds of jurisdiction, allegations of, in bill, 695. see also heading Grounds of Jurisdiction. hearing on bill and answer, 969. impertinent matter in answer in equity, motion to strike, 5 930, 967. independent suit in equity in counterclaim, 9 981. initial, see Initial Pleading. pleading at law (ch. 16), in equity (ch. 26). federal question must show in, 129, 130. interrogatories not a part of, 942. intervention, ch. 28. irrelevant matter, motion to strike in equity, 930, 968. issue in equity, see heading Issue, 1010. joinder of causes, Eq. R. 26, ch. 26. joinder of parties, Eq. R. 37, 5 710. jurisdiction, ground of, see heading Jurisdiction, 5 695. law actions, 5, ch. 15. manner of defensive, at law, 544. master's report refers to but does not copy, Eq. R. 61, 9 1070. Manual 74 1170 INDEX. misjoinder, Eq. B. 29, 880, 900. PLEADING (Continued). motion to dismiss, ch. 39, Eq. B. 29, 880, 900. motion to dismiss admits allegations of bill well pleaded, 882. motion to strike out, ch. 46. motion to strike out to test sufficiency of answer or counterclaim, Eq. B. 33, ch. 46, 968. misjoinder, Eq. B. 29, 880, 900. motions, see that heading, newly discovered evidence, rehearing for, 1162. objections to answer in equity, 968. officers before whom verified, Eq. B. 36, 700. order defensive at law, 541. parties, ch. 27. parties, see that heading. allegations as to in bill in equity, 694, 697. citizenship, allegation of, in bill, 694. proper, allegation of, in bill, 697. residence, allegation of, in bill, 694. pleas abolished, matter set up in answer, Eq. B. 29, 900. prayer of bill in equity, 698. proper parties, allegations in bill in equity, 697. redundant matter, motion to strike (equity), 930, 968. rehearing, ch. 57. removal of causes, ch. 9. reply, Eq. B. 31, ch. 47. reply to counterclaim or setoff in equity, 3010, 1011. residence of parties, allegation of, in bill, 694. revivor, Eq. B. 45, 763, ch. 33. ^ * scandal, motion to strike (equity), 930, 967. scandalous matter, signature of counsel that none inserted in, Eq. B. 24, 699. scandalous matter to be stricken out, Eq. B. 21, ch. 42, 812, 820, 968. scope defensive, at law, 544. setoff, Eq. B. 31, ch. 47. setoff, see Counterclaim in Equity, 980, 981. signed by solicitors, Eq. B. 24, 699. state practice, bill in equity, differences federal and state, 691. complaint at law, differences federal and state, 470. differences, federal and state practice, 10. statement of cause of action in bill in equity, 696. stockholder's suit, ch. 29. sufficiency defensive at law, 544. INDEX. 1171 PLEADING (Continued). supplemental, Eq. R. 32, 34, 35, 962; see also ch. 38. supplemental answer in equity, 9 966. technical forms abrogated, Eq. R. 18, 690, 960, 965. time for answer in equity (see beading Time), 9 963. counterclaim in equity, 963. defensive, at law, 541. reply to counterclain in equity, 1010. setoff in equity, 963. rerification before whom, Eq. R. 36, 700. PLEADINGS, see Pleading, above. PLEAS ABOLISHED, answer now makes, Eq. R. 29, 5 900. POLITICAL OFFENSE, extradition not allowed, 1302. POLYGAMY, challenges in prosecution for, 1368. POOR PERSONS, see Indigent Parties, Proceedings in Forma Pauperit. PORTO RICO, 1509. appeal and error to Supreme Court, 1561. procedure, appeal from supreme and district court's of, 1680. POSSESSION, decree for, writ of assistance, Eq. R. 9, 1143. equity suit, recoverable in, 861. to enforce, Eq. R. 7, 1112. writ of assistance for, by clerk to issue, Eq. R. 9, 9 1143. POSSESSORY ACTION, mining titles, government title does not affect, 9 310. POSTAL LAWS, continuance in suits under, 9 564. credits in suits, 9 1710. interest in suits, 9 1711. intoxicating liquors, venue, 9 84. letters, seizure of, 9 1716. same, disposition of seizures, 9 1717. POSTAL SUITS, attachment, 99 495, 503. garnishment, 9 501. POSTOFFICE, copies of department demand en postmasters as evidence, } 2M. records, copies as evidence, 9 295. 1172 INDEX. POWERS OP MASTEE, Eq. E. 62, 1063. PRACTICE, see Procedure. admission to district court, 56. additional rules for, by district court, Eq. E. 79, 8, 58. circuit court of appeals, Eule 8 C. C. A. Appendix. court of claims, disqualification for, 1430. rules of, 1434. differences in law and equity, 6. federal and state, 10. equity suits rules of, 57. equity, summary, ch. 25. law actions rules of, 57. law summary, ch. 15. rules of, 57. i PBAYEE, for special relief to be stated in bill, Eq. R. 25, 698. interrogatories not covered by, in bill, 943. PRECEDENCE given to hearing in cases of temporary restraining orders, Eq. B. 73, 1104. PEECIPE, filing indicating portions of record on appeal, Eq. E. 75, 1671. process in equity, for, 792. subpoena im equity, 661. PEEJUDICE, district judge, designation of another judge of affidavit filed, 25. removal of causes for, 191, 200. unless material, will result appellate court not to reverse decree, Eq. E. 46, 1043. PEEL1MINAEY INJUNCTIONS, see Restraining Order and Injunctions. and temporary restraining orders, Eq. E. 73, 1103 et seq. PREPAEATION, record on appeal or error, 1670. PREPAEATION AND EEDUCTION OF BECOBD ON APPEAL, Eq. E. 75, 1671. costs corrections of omissions, Eq. E. 76, 1671. INDEX. 1173 PRESENTATION of defense, Eq. B. 29, 900. PRESERVATION OF LIEN, upon transfer or creation of new district, venue, 5 70. PRESUMPTION, master's conclusions of fact, correct, 1073. PRINTED, and bound copies of acts as evidence, 279. copies of patent, specifications and drawings as evidence, 302. PRINTER'S FEES, folio defined, 427, 428. PRINTING, appeal record, circuit court of appeals, 1671. Rule 19 C. C. A. (6th Circuit) Appendix. Rule 23 C. C. A. Appendix. Rule 40 C. C. A. (8th Circuit) Appendix. Addenda Rule 45 C. C. A. 1673. PRINTS, trading with the enemy act, suits under, 8 1722, 1728. PRIORITIES, attachments, 491. revenue cases, 1702. state a party, cases where, 1703. PRISONER, arrest of, ch. 62. bail of, ch. 62. see that subhead under heading Criminal Procedure. custody, circuit court of appeals, Rule 33 C. C. A. Appendix. Rule 31 C. C. A. (3d and 7th Circuits) Appendix Rule 32 C. C. A. (6th Circuit) Appendix, extradition, see that heading, ch. 63. PRISONERS, pardon and parole, ch. 67. PRIVILEGE, removal by writ of error, state court, decision against, 9 1607. PRIVILEGES AND IMMUNITIES, 124, PRIZE CASES, appeals to Supreme Court, 1554. witness fees, how paid, 424. 1174 INDEX. PKOBATE JURISDICTION, executors and administrators are parties, 710. PROCEDENDO, Rule 44 C. C. A. (8th Circuit) Appendix PROCEDURE, after removal, 199, 217. aliens, suits against federal officers, on removal, 209. appeal, see that heading, eh. 75. appellate, see Appeal and Error, eh. 75. appellate court after transcript filed, 1686. bias, on removal for, 200, 203. blended a possibility, 9. C. C. A. rules, 1473, set out in full in Appendix, p. 845 et seq. Civil Rights Cases, on removal of, 207, 208. condemnation food products and fuel, 1725. congressional officers, on removal of suits against, 210, 211, 212 et scq. custom law seizure cases, 1706. differences between law and equity, 6. federal and state, 10. diverse citizenship, removal of causes, 195 et seq. equity, see Equity Suit, chs. 25, 28, 55, 8. federal officers, aliens against, removal, 206. congressional, removal of suits against, 305 et seq. revenue, removal of suits against, 210 et seq. federal question, removal of causes, 195 et seq. food products and fuel, condemnation, 1725. injunction on distress warrant against officer for failure to account for public money, 1119, 1120. land grant cases on. removal, 205. law, see Law Actions, chs. 15, 24, 5. libel, food products and fuel, 1725. maritime liens, 1715. officers, aliens against, removal, 206. congressional, removal of suits against, 210 et seq. revenue, removal of suits against, 210 et seq. prejudice, on removal for, 200 et seq. remanding cases removed, see Remand, removal of causes, ch. 9. removal by writ of error to state court, ch. 74, 1609. revenue officers, removal of suits against, 210 et seq. separable controversy, removal of, 195 et seq. state court, removal by writ of error from, 1609. study of, 11. temporary restraining order when granted without motice, 1104. INDEX. H75 PROCEDURE (Continued). writ of errof, see that heading. district court to circuit court f appeals, 9 1657* forma, pauperis, 1668. state court, to, 1609. summary, 1676. territories to, 1679-1685. PROCEEDINGS, after decree pro confesso, Eq. R. 16, 811. error or defect in to be disregarded when not affecting substantial rights, Eq. R. 19, 9 760. equity, summary, ch. 25. forma pauperis, C. C. A. Rule 17 (6th Circuit) Appendix, law summary, ch. 15. venue of, ch. 4. venue of prosecutions, 78. PROCEEDINGS BEFORE MASTER, powers in, Eq. R. 62, 1063. speeding of, Eq. R. 60, 1062. PROCESS, additional rules as to, by district court, Eq. R. 79, 58. affidavit of service, Eq. R. 15, 796. alias subpoena, equity, 794. amendment at law, 623. amendment of Eq. R. 19, 760. answer required by subpoena, Eq. R. 7, 790. attachment to compel obedience, Eq. R. 7, 8. 1112. award of, by judge at chambers, etc., Eq. R. 1, 822 by whom served, Eq. R. 15, 9 796. chambers, Eq. R. 1, 9 822. circuit court of appeals, 9 1473. Rule 9 C. C. A. Appendix. Rule 8, 6th Circuit under Rule 9 C. C. A. Appendix, court may permit any process to be amended, Eq. R. 19, 9 760. defendant in different district same state, 9 64. equity suits, ch. 34. execution writ for money, Eq. R. 8, 10, 9 473, 1112, 1140, 1143. final, Eq. R. 1, 9 822. for or against persons not parties, 9 795. for taking bills pro confesso grantable of course by clerk, Eq. R. 5, 9 823. form, equity, 99 791, 799. forma pavperis suits, 9 528. law conform to state laws, exceptions. 9 522. 1176 INDEX. PEOCESS (Continued). of return, equity, 798, 799. * in behalf of and against person not parties, Eq. R. 11, 795. issuance of equity, 791. issued and returns thereon to be noted in equity docket, Eq. R. 3, Appendix. issuing and return of, Eq. R. 1, 822. judge at office of clerk, Eq. R. 1, 822. may be served by person appointed therefor, Eq. R. 15, 796. mesne and final, defined, Eq. R. 7, 790. mesne and final, issuing and returning, Eq. R. 1, 822. mesne and final to be served by marshal, deputy, etc., Eq. R. 15, 796. mesne, in equity, the subpoena, 790. mesne or final, to enforce and execute decrees grantable of course by clerk, Eq. R. 5, 823. manner of service, 525, 797. motion for, grantable by clerk, Eq. R. 5, 8'23. * orders enforcing, Eq. R. 7, 1112. prayer for, none required, 698. previpe for, in equity, 792. publication of, 66, 526. , return of, in equity, 791. , form, 798, 799. time for, 664, 791. service of, by whom made, 524, 796, see Service of Process; Subpoena. by publication, 66, 526. manner of, 525, 797. time for, 664, 791. sequestration writ, Eq. R. 7, 8, 1112. special appearance to quash, 527. subpoena is, Eq. R. 7, 790. subpoena is mesne, Eq. R. 7, 790. summons in equity is the subpoena, 790. time for return, 664, 791. venue, subject matter in two districts, 63. witnesses in criminal cases, 339. see also Subpoena, writ of assistance, Eq. R. 7, 9, 1112. PRO CONFESSO, bill may be taken when answer not filed, etc., Eq. R. 12, 810. decree, see Decree pro Confesso. entered if answer not filed, Eq. R. 29, 880, 900. on default in answer, Eq. R. 16, 811. to be followed by final decree, Eq. R. 17, 813. taking bills, motion for, grantable of course by clerk, Eq. R. 5. 823. INDEX. 1177 PROCTORS, admission to Supreme Court, 1532. fees of, 9 409. PRODUCTION, and inspection of documents, etc., Eq. R. 58, 5 670, 940. books and papers under customs, revenue laws, 572. books, documents and papers, depositions under commission, 9 387. books, etc., compelling under act establishing bureau of war risk insur- ance, 361. documents may be enforced, Eq. R. 58, 670, 940. interrogatories, as a basis for, 946. of books, papers, etc., may be required by master, Eq. B. 62, S 1063. person, habeas corpus, 1338. PROHIBITION, circuit court of appeals, Rules 33 C. C. A. (6th Circuit) Appendix. Supreme Court, writ of, 9 1534. PROHIBITION LAWS, see also Alaska and District of Columbia, civil action for injuries, 1726. injunction against violation of, 9 1121. PROOF, differences in law and equity, 6. infringement suits, 1046. mode, in equity, 1042. in law actions, 595. motion to dismiss does not consider, 883. 901. records, on removal when copies refused by state court clerk, 9 213. signature and handwriting, i 312. PROPER PARTIES, see also Parties. absence of, Eq. R. 39, 697, 71. bill in equity, 697. PROPERTY, attachment of, 485. condemnation of insurrectionary, renue, 9 78. PROSECUTION, by district attorney, 1361. criminal offenses, method of, 1360 failure to file rebate tariffs, venue of notion. $ 80. 1178 INDEX. / PROSECUTION (Continued). fortifications, injuries to, venue, 83. venue, 75, 76. venue violations, immigration laws, 85. venue violation sixteen hour law, 81. PEO VISIONAL, depositions, see Depositions de Bene Esse. remedies, attachment, ch. 17. garnishment, ch. 17. injunctions, ch. 54. preserved on removal of causes from state to federal courts, 216. receivers, ch. 53. PUBLICATION, depositions in equity on filing, 392. deposition, when filed, Eq. R. 55, 372. execution, sale of real estate, 641. interstate commerce reports and decisions as evidence, 361. process, 66. summons, 526. PUBLIC MINISTERS, Supreme Court, suits against, in, 1534. PUBLIC MONEY, continuance in suit against delinquent, 563. Q. QUALIFICATIONS, jury, trial laws actions, 584. civil rights acts, 585. penalty for exclusion, 586. receivers, 1080. QUESTION, see Federal Question. arising under the Constitution, 124. federal laws, 125. treaties, 125. of jurisdiction, what is, 1552. QUESTIONS, competency, materiality or relevancy of, not to be decided by examiner, Eq. R. 51, 381. INDEX. 1179 QUIET TITLE, amount in controversy, what is, 174. possession in suit to, 861. QUORUM, circuit court of appeals, Rule 4, C. C. A. Appendix, J 1471. court of claims, 1431. court of customs appeals, 1452. Supreme Court, 1530. B, RAILWAY, companies, claims for transportation furnished the government, 1432. patents, statute of limitations, 246. RATE OF INTEREST, see Interest. REAL PARTY, in interest, Bq. B. 37, 710. REAL PROPERTY, receiver's jurisdiction over, when outside of district within circuit, venue, 67. sale of, see Executions. REBATE, tariffs giving, prosecution for failure to file, venue, 80. RECEIVERS, ch. 53. jurisdiction over real property outside district in circuit, venue, 67. leave of court, when not necessary for suit against, 1083. manage properties according to state laws, 1081. qualifications of, 9 1080. suits against, without leave of court, 1082, 1083. RECEIVERSHIP, appeals from district court to circuit of appeals, 1502* injunction against proceedings against national banks, 1116. RECLAMATION ACT, jurisdiction district court, 8 H2. RECOGNIZANCE, bail, see that heading, 1277. criminal cases, witnesses, 340. in Vermont, 341. on behalf of United States district attorney, 5 342. forfeiture of, 1268. remittance of, 1268. witnesses in criminal cases, j 340. in Vermont, 340. on behalf of United States district attorney, 342. 1180 INDEX, RECORD, amendment of, Eq. R. 19, 760. appeal and error, papers and proceedings in, 1669a appellant's statement as to record on appeal to become part of, Eq. R. 75, 1671. bill of review to correct error on face of, 1180. court may permit any record to be amended, Eq. R. 19, 760. evidence, how stated in, Eq. R. 75, 1671. RECORD ON APPEAL, additional portions, precipe by appellee, Eq. R. 75, 1671. agreed statement, Eq. R. 77, 1671. appellant's precipe for, Eq. R. 75, 1671. ' circuit court of appeals, Rule 21 C. C. A. (6th Circuit) Appendix, copy of, C. C. A. Rule 27, C. C. A. Appendix, costs correction of omission, Eq. R. 76, 1671. costs for infraction of rule, Eq. R. 76, 1671. differences as to, Eq. R. 75, 1671. diminution of, 1689. district to Supreme Court, one record sufficient, 1673, evidence condensed in, Eq. R. 75, 1671. filing of, C. C. A., 1672. indicating .portions of, Eq. R. 75, 1671. instructions as to making up for circuit court of appeals, Addenda Rule 45 C. C. A. Appendix, omission in, correction, costs, Eq. R. 76, 1671. one sufficient where both parties appeal, 1673. precipe, copy of, indicating portions of, Eq. R. 75, 1671. preparation of, Eq. R. 75, 1671. printing of (see that heading) on appeal to Supreme Court, 1673. of C. C. A., 1672. reduction and preparation, costs, correction of omission, Eq. R. 76, 1671. service of copy of precipe, Eq. R. 75, 1671. translations, Rule 15, C. C. A. Appendix. Rule 16, 3d Circuit under Rule 15 C. C. A. Appendix, writ of error, 1670. RECORDS, copies as evidence, clerk's new, 305, 306. Commissioner of Indian Affairs, 299. Comptroller of Currency, 288. , Department of Interior, 294. Executive Departments, 286. INDEX. 1181 RECORDS (Continued). copies as evidence (continued). foreign, filed in departments relating to land title, 5 276. lost or destroyed, 280, 285. navy, 291. patent office, 300, 303. postoffice, 295, 296. solicitor of treasury, 287. state, 275. Supreme Court, lost or destroyed, 5 282. Treasury Department, 291, 293. war, in suits against delinquents, 291. district court, place for keeping, 54. transfer of territorial, 54. judgment law actions, 625. index of, 626. restoration of, see Restoration of "Records, 281, 285. return of, removal of causes, 214. REDUCTION, record on appeal or error, 9 1670. REDUCTION AND PEEPARATION OF RECORD ON APPEAL, Eq. R. 75, 9 1671. REDUNDANT MATTER, motion to strike, equity, ch. 42, 930, 935. REFEREE, bankruptcy, matters under equity rule 66, 9 1074. REFERENCE, accounts to master costs, Eq. R. 59, 1061. consent to, effect of, 1075. exceptional matters, illustrated, 1064. masters in chancery, costs, 1070. exceptions, 1070. hearing, 1062. notice, 1062. report, 1070. notice of hearing before master. 5 1062. stipulation for, effect of, 1075. to master exceptional, not usual, Eq. R. 59, 1 1061. REGULATION, master in chancery proceedings, 1063. M82 INDEX. REHEARING, ch. 57. allowance of petition as suspending decree, 1161. bill of review, ch. 58. circuit court of appeals, Rule 27 C. C. A. (3d, 7th, and 8th Circuits) Appendix. Rule 28 C. C. A. (6th Circuit) Appendix. Rule 29 C. C. A. (1st and 2d Circuits) Appendix, discretion of court, 1164. if appeal lies to C. C. A. not granted after term, Eq. R. 69, 1160. newly discovered evidence, 1162, 1163. petition for, provisions as to, Eq. R. 69, 1160. REINSTATEMENT OF CAUSES, continued, Eq. R. 57, 679, 1032. RELATIONSHIP, district judge, outside judge to serve, 25. RELEASE, motion to dismiss setting up, 89-1. RELEVANCY OF QUESTIONS, not to be decided by examiner, etc., Eq. R. 51, S 381. RELIEF, retaining case to afford complete, 1146. special, prayer for, to be stated in bill, Eq. R. 25, 698. to be verified by oath of plaintiff, etc., Eq. R. 25, 700. RELIEF GRANTED, differences law and equity, . REMANDING, bias, failure to show, 202. cases removed from state court, 20L diverse citizenship, class two, 203. federal question, class one, 203. fraud for, 215. generally, 215. improperly removed, 215. prejudice, failure to show, 202. separable controversy in cases removed for bias or prejudice, S 201. REMEDY, adequate at law, ch. 37. attachment, see that heading^ 483. complete, retain case to afford, 114tt. conditional decree, 1144. discovery, see that heading. INDEX. 11S3 REMEDY (Continued). differences law and equity, 6. equity suit, see that heading, ch. 25. garnishment, ch. 17. law action, see that heading, ch. 15. legal in an equity suit, 860. removal of causes, provisional, in state court preserved, 21ft. retaining case to afford complete relief, 1146. REMEDY AT LAW, ch. 37, 267, Jud. Code. REMOVAL BY WRIT OF ERROR TO STATE COURT, ch, 74. see also Removal of Causes, ch. 9. appellate method of review state court decision, 1602. authority federal, decision against federal, 1605. decision against right, title, privilege or immunity claimed nnder, 51607. commission, removal decision against right, title, privilege, or immunity claimed under federal, 1607. constitution, decision against federal, 1605. decision against right, title, privilege, or immunity claimed under federal, 1607. decree removable, 1603. immunity, federal, state decision against, 1607. judgments removable, 1603. jurisdiction under, 237, Jud. Code, 1601. privilege, federal, state decision against, S 1607. procedure on, 1609. reviewablc cases, 1604. right, federal, state decision against, S 1607. state statutes claimed repugnant to federal authority, state decision in favor of, 1606. statute, federal, state decision against, S 1607. title, federal, state decision against, 1607. treaty, federal, state decision against validity, $ 1605. state decision against right, title, privilege, or immunity claimed under, S 1607. REMOVAL OF CAUSES, ch. 9. see also Removal by Writ of "Error to State Court, ch. 74, aliens, suits against federal officers, class six, S 2U6. same, habeas corpus in, 9 208. bias of state court, class four, {$ 191, 200* bond, diverse citizenship, 196. federal question, 196. in state court preserved, 216. separable controversy, $ 196. 1184 INDEX. REMOVAL OP CAUSES (Continued). carrier, employers' liability cases not removable, 204. certiorari, congressional officers, cases against, 212. revenue officers, cases against, 212. cml rights cases, class seven, 207. habeas corpus, 208. remanding, 215. common carriers, employers' liability cases not removable, 204. congressional officers, 212. revenue officers, 212. congressional officers, certiorari in cases removed against, 212. officers, class eight, 209 et seq. habeas corpus in cases removed against, 212. constitutional question a ground for, 126. dismissal of suits fraudulently or improperly removed, 215. diverse citizenship, bond, 191. class two, 193. remanding or dismissing cases fraudulently or improperly removed, 215. procedure, 195 et eeq. duty of state court on removal of causes, 197. employers' liability, common carrier cases not removable, 204. federal officers, aliens against, 206. certiorari, 212. congressional, against, 209. habeas corpus, 208, 212. revenue, against, 209. federal question, bond, 196. class one, 192. as a ground, 126. dismissing cases improperly or fraudulently removed, 215. procedure, 195 et seq. fraud, ground for dismissal or remanding, 215. grounds, 190. habeas corpus, civil rights eases, 208. judge of state court, duty on removal of ease, 197. jurisdiction, see that neading, class one, federal question, 191, 192. class two, diverse citizenship, 191, 193. class three, separable controversy, 191. 200. class four, bias or prejudice, 191, 200. class five, land grants, 205. class six, aliens against federal officers, 206. class seven, Civil Eights Cases, 207. class eight, against congressional or revenue officers, 209. INDEX. 1185 REMOVAL OF CAUSES (Continued), land grant cases, class five, 205. laws of United States, question arising under, ground for, 128. notice, removal of causes, classes 1, 2, 3, 198. officers, aliens against federal, 206. certiorari in cases against, 212. congressional, against, 209. habeas corpus, I 212. revenue against, 209. pleading, see Procedure, below prejudice, in state court, class four, 191. 200. procedure, after removal in classes 1, 2, 3, 199. aliens against officers, 206. bias of state court, 200 et seq. Civil Bights Cases, 207, 208. eongressional officers, 211, 212. diverse citizenship, 195 et seq. federal officers, 206 et seq. federal question, 195 et seq. generally, 217. land grants, 205. officers, 206 et seq. prejudice of state court, 200 et seq. remanding, see that heading. revenue officers, 210 et seq. separable controversy, 195 et seq. proceedings, see Procedure, above. after removal in classes 1, 2, 3, 199. generally, 217. proof of records of state court when copies refused by clerk, | 219. records of state court, return of, 214. remanding, bias, failure to show, 202. diverse citizenship, class two, 203. federal question, class one, 203. fraud, 215. generally, 215. improperly removed cases, 215. prejudice, failure to show, 202. separable controversy in cases removed for bias or prejudice, 9 201. remedies, provisional, in state courts, preserved, 216. return of record from state court, enforcement of, 8 214. revenue officers, cases against, 209. certiorari and habeas corpus, 212. separable controversy, class three, 191, 194. remanding in cases removed or bias or prejudice, 5 201. Mnul 75 * 1186 INDEX. REMOVAL OP CAUSES (Continued). state court, bond in and provisional remedies, preserved on removal, 8 218. treaties, question arising under, ground for, 126. REMOVING CLOUD, 66. amount involved, 174. serving nonresident, 66. REPAIRS, lien on vessels for, 1714. REPLEVIN, revenue laws, none for property taken under, 1 170*. REPLICATION, see Reply, 1011. REPLY, eh. 47. answer in equity, when required to, 1010. confession and avoidance, 1011. counterclaim, Eq. R. 31, eh. 47. counterclaim or setoff in equity, 1010. issue on, 675. none required unless answer asserts setoff or counterclaim, Eq. B. 31, ch. 47. scope of, I 1011. time for, 674. when required when cause at issue, Eq. R. 31, ch. 47. REPORT, confirmation of master's, 1072. costs on exceptions to, Eq. R. 67, 1070. exception to master's, 1071. master's, exceptions, hearing, Eq. R. 66, 1070. identifies but does not state affidavits, answer, etc., Eq. R. 61, 1070. to court, Eq. R. 60, 1062. reference by consent, 1075. REPORTER, Supreme Court, 153L REPORTS, circuit court of appeals, 1475. court of claims, 1439. district court decisions, 20. investigations of accidents from failure of boilers, not admissible in dam- age suits, 5 309. master in chancery, 1070, see Report, above. INDEX. 1187 REPORTS OF DECISIONS, 55. Supreme Court, 1531. REPRESENTATIVE OF DECEASED PASTY, procedure in Supreme Court when without jurisdiction of trial court, 1692. procedure in circuit court of appeals, when without jurisdiction of trial court, 1692. REPRESENTATIVES, diverse citizenship of, 9 149. REPRESENTATIVES of a class may sue or defend, Eq. R. 38, 5 715. RESCUE, extradition, intrastate, penalty for, 1316. from foreign country, penalty for, 1314. RESIDENCE, assignor of plaintiff, 5 97. bill in equity, allegation of, 5 694. corporations, allegations of, 144. each party's must be stated in bill, Eq. E. 25, | 694. RESPONSE. circuit court of appeals, Rule 39 C. C. A. (8th Circuit) Appendix. RESTORATION OF RECORDS, judicial, $ 281. in which United States are disinterested, by United States attorneys, 485. service of notice on nonresidents, 283. RESTRAINING ORDEB, see also Injunction, bond, 1102. dissolution, 1105. filing, 1106. national bank, not to issue in state court, 1 1117. notice of, 1103. procedure when issued without notice, J 1104. RESTRAINING ORDERS, temporary, and preliminary injunctions, Eq. B. 73, 1103 et seq. RETURN, amendment, habeas corpus, | 1340. contract to Returns Office Department of the Interior, copy as evidence, 294. 1188 INDEX. RETURN (Continued). copies of lost or destroyed, as evidence, 284. denial of, on writ habeas corpus, 1340. final process, Eq. R. 1, f 822. form of, habeas corpus writ, 1337. process in equity, 798, 799. "habeas corpus, amendment, 1340. denial of return, 1340. form of return, 1337. time of return, 1306. master's report exceptions hearing, Eq. R. 66, 1070. process in equity, 791, 798, 799. removal of causes, enforcement of return of record from state to federal court, 214. rules governing in equity, 799. subpoena in equity, 664, 791, 798. not executed, Eq. R. 14, 794. time of, habeas corpus writ, 1336. in equity, 664, 791. venire for jury, law actions, 590. writ of error Rule 14, C. C. A. Appendix. form of (8th Circuit) Appendix. Addenda to Rule 45 C. C. A. (8th Circuit) Appendix. RETURNS on process to be entered on equity docket, Eq. R. 3, Appendix. REVENUE, costs against nonsuited plaintiff in action against officer, double, 433. costs, none against United States upon information, 430. costs, seizure cases, 431. jurisdiction in revenue cases, 101. motion and notice to produce books and papers, 572. officers, see Revenue Officers. priority of cases, 1702. prosecutions of fraud, by district attorney, 1704. replevin does not lie for property taken, 1703. statutes of limitations, 235. suits in name of United States, 1703. venue, 76. witnesses not disqualified by claiming compensation, REVENUE OFFICERS, certiorari in removal cases, 212. costs double, nonsuit against, 433. executions, when do not issue against. 632. INDEX. 1189 REVENUE OFFICERS (Continued)/ habeas corpus, in removal of cases against, 212. procedure in removal cases, 210. removal of causes against, class eight, 209. REVERSAL, decree by appellate court not unless, Eq. R. 46, 9 1043. facts, ndie for error in, 1686. not for wrong form of appellate review, 1693. REVERSED, decrees not to be, unless material prejudice would result, Eq. R. 46, 1043. REVIEW, see Bill of Review, 1182. appellate court, differences, law and equity, 6. certiorari, final decisions of circuit courts of appeal, 1677. District of Columbia court of appeals by Supreme C'ourt, 1561, state court decisions, time for, 1656. writ of error to state court, 1604. REVIEW, BILL OF, ch. 58. REVISED STATUTES, authorized editions, 271, 273. Richardson's Supplement of Revised Statutes as evidence, 9 273. table of, Appendix, p. 1025 et seq. REVIVOR, ch. 33. bill of, Eq. R. 35, ch. 33. on death of party, Eq. R. 45, 9 763. REVOCATION, of appointment of outside judges, 9 22. RHODE . ISLAND, districts, terms and places of holding court, 9 104. Jud. Code, Appendix. RIGHT, removal by writ of error, state court decision against, 9 1607. RIVERS, jurisdiction of district court to remove obstructions in, 9 102. ROOMS FOR HOLDING COURT, court of customs appeals, 9 1452. RULE DAYS abolished, 9 821. RULES, additional by district court, Eq. R. 79, 8, 58. admiralty, circuit court of appeals follow the Addenda to Rule 45' C. C. A. Appendix, p. 845 et seq. 1 190 INDEX. RULES (Continued). admission to practice, circuit court of appeals, 1474, court of claims, 1430. district court, 56. Supreme Court, 1532. adopting state attachment and garnishment remedies, 481. f award of, by judge at chambers, etc., Eq. R. 1, 822. chambers, Eq. R. 1, 822. circuit court of appeals for all circuits, Appendix, 1473, p. 845. . C. C. A., table of, Appendix, p. 1034. court of claims, 1434. court of customs appeals, 1452. deposition, form of, 380. objections to, 381. signing, 382. determining jurisdiction circuit court of appeals and Supreme Court whei. question of jurisdiction in issue, 1553. discovery not altered, 941. equity, annotated, in, Appendix, p. 971. regulating proceedings, 3. suit, 58. summary of proceedings, ch. 25. table of, Appendix, p. 1035. grantable of course, received and disposed of by clerk, Eq. R. 2, Appendix, interlocutory, making and directing, Eq. R. 1, 822. law actions, 57, 450. old, abrogated, Eq. R. 81, Appendix. Supreme Court, in, Appendix, 817 et seq. Supreme Court, table of, Appendix, p. 1034. tables of, circuit courts of appeals, Appendix, p. 1034. equity, Appendix, p. 1035. Suprenre Court, Appendix, p. 1034. when effective, Eq. R. 81, Appendix. -r-pSTH when they may be amended, Eq. R. 1, 822. RULINGS, exceptions to, in law actions, 596, 597. trial law actions, taking of, 596. time for taking, 597. INDEX. 8. SALARY, see headings of various officers. SALE, amount due above proceeds of decree for, Eq. R. 10, 9 1140. SALE OP, personal property, appraisal of, on execution, 9 644. place of sale on execution, 9 640. real estate, marshal's successor to continue proceedings, 642. place of sale on execution, 9 640. purchase by government in government suits, 9 643. SCANDAL, equity suit, removal of, 9 967, 930. exceptions for, shall not obtain, Eq. R. 21, 9 967. illustration of, 9 932. motion to strike, ch. 42. SCANDALOUS MATTER, signature of solicitor, certificate that none inserted in pleading, Eq. R. 24, 9699. striking out, Eq. R. 21, 99 930, 967. SCIRE FACIAS, writ of, 5 1114. SCOPE, defensive pleading at law, 9 544. SEAL, circuit court of appeals, 9 1473 ; Rule 2 C. C. A. Appendix. 9 2, Rule 2, 6th Circuit under Rule 2 C. C. A. Appendix. Department of Commerce and Labor, judicial notice of, 9 307. SEAMAN, consul's jurisdiction over, 9108. witness fees when sent home to give testimony in criminal cases, 9 422. SEARCHES, under custom laws, 9 1705. SECOND CIRCUIT, outside judge, 9 24. SEDUCTION OP FEMALE PASSENGERS ON VESSELS, statutes of limi- tations, 9 236. 1192 INDEX. SEIZUKES, burden of proof under customs duties laws, 308. for embargo, forfeiture, insurrection, venue, 79. letters carried contrary to law, 1716. disposal of, 1717. procedure in cases under custom laws, 1706. under custom laws, 1705. venue, 76. ' . SENTENCES, prize cases, appeals to Supreme Court, 1554. SEPARABLE CONTROVERSY, bond in removal cases, 196. in joint and several liability, 194. remanding of, in cases removed for bias or prejudice, 201. removal of causes, 191, 194. what is, 194. SEQUESTRATION, WRIT OF, against estate of delinquent, Eq. R. 8, 473, 1112, 1140, 1143. person other than disobedient party to comply with mandatory order for specific performance, Eq. R. 8, 473, 1112, 1140, 1143. proper process if defendant not found, E'q. 'R. 7, 1112. SERVANTS OF AMBASSADORS, Supreme Courts, suits against in, 1534. SERVICE, affidavit of, Eq. R. 15, 796. attachment not basis for substituted, 483. by whom made in equity, 524, 796. foreclosure of liens, 66. form of return of, in equity, 798. manner of, in equity, 797. mesne process in equity, 796, 797. papers, circuit court of appeals, Rule 9, 6th Circuit, Appendix, process, Eq. R. 15, 796. process in equity, by whom, 524, 796. 797. manner of, 525. process in equity return, form of, 798. return of, 791. return, time for, 664, 791. publication of, 66, 526. form on process in equity, '798. return of, process in equity, 791. time for in equity, 664. INDKZ. 1193 SERVICE (Continued). ubpoena, by whom, 524, 794. form of, 793, 798. manner of, 525, 797. return of, 791. time for, 664, 791. subpoena on defendant, Eq. R. 13, 797. summons in equity, see Subpoena, f 524, 525, 796, 797. time for, in equity, 664, 791. SERVICE OF SUBPOENA by delivery of copy, etc., Eq. R. 13, 5 797. SESSIONS, see also Terms. circuit court of appeals, Rule 3 C. C. A. Appendix. Rule 36 C. C. A. (9th Circuit) Appendix, court of claims, 1431. customs appeals, 1453. district court, ch. 5, Jud. Code, Appendix. Supreme Court, 1533. SETOFF, ch. 45. see also Counterclaim. amount in controversy, effect on, 177. answer in equity, 980, 981. court of claims, enforcement of judgment, 1439. motion to strike out, Eq R. 33, ch. 46, 967. reply to, 1010. sufficiency tested by motion to strike out, 1000. to be replied to, Eq. R. 31, ch. 47. to be stated in answer, Eq. R. 30, 980. SETTING FOR TRIAL, CALENDAR, ch. 49. SETTING FOR TRIAL, time for, 1030. SETTLEMENT, decree, objections to draft of, 1142. SETTLEMENTS FOR CUSTOMS DUTIES, statutes of limitations, | 240. SHIFTING, parties to create diverse citizenship, { 157. SIGNATURE, decree, 1142. interrogatories answer, Eq. R. 58, 270, 670, 940, 962r. of witness, Eq. R. 51, 382. pleadings to be signed by solicitors of record, Eq. R. 24, { 699. 1194 INDEX. SIGNING, depositions, Equity Rule as to, 382. SIXTEEN HOUR LAW, PROSECUTIONS UNDER, venue, 81. SLAVE TRADE, statute of limitations, 234. SOLICITOR OF THE TREASURY, records, copies as evidence, 287. SOLICITORS, see also Attorneys. clerk to send copies of interrogatories to, Eq. R 58, 940. costs imposed on offending, Eq. R. 76, 1671. fees of, 409. notice to, of proceedings before master, Eq. R. 60, 106'2. noting or entry of order not notice to, Eq. R. 4, 825. offending, imposition of costs on, E'q. R. 76, 1671. of record, to be furnished copy of amended bill, E'q. R. 28, ch. 31. to sign every pleading, Eq. R. 24, 699. to file preripe indicating portions of record on appeal, Eq. R. 75, 1671. SOUTH CAROLINA, districts, terms and places of holding courts, 105, Jud. Code, Appendix. SOUTH DAKOTA, districts, terms and places of holding court, 106, Jud. Code, Appendix, jurisdiction district court over crimes on Indian reservations in, 106. SPECIAL APPEARANCE, to quash process, 527. SPECIAL BAIL, suits for duties, 1273. SPECIAL COUNSEL, to aid district attorney, 33. SPECIAL JURIES, see also Juries, trial law actions, 592. SPECIAL TAX, payment of, under District of Columbia, prohibition laws, 316. SPECIAL TERMS, district court, 51. Supreme Court, 1533. SPECIAL VERDICT, see Verdict, 610. INDEX. 1195 SPECIFIC PERFORMANCE, enforcement of decree, Eq. B, 8, | 473, 1112, 1140, 1143. damages in suit for, 861. SPLITTING DEMANDS, amount in controversy, state statutes do not con- trol, 180. STANDING MASTERS IN CHANCERY, court! may appoint, Eq. E. 88, 1060, see, also, Master. STATE, court records, evidence of, 274. courts, see State Courts. criminal jurisdiction not affected, 1206. district courts in, ch. 5, Jud. Code, Appendix. diverse citizenship, not citizens, 143. federal judicial districts in, ch. 5, Jud. Code, Appendix. judicial districts in, 9 50. jurisdiction of offenses, 1205. concurrent with district court, 93. laws, see State Laws, legislative acts, evidence of, 274. not a citizen, 143. party to suit in Supreme Court, 9 1534. practice, see State Practice, priority cases where a party, 9 1702. records, copies as evidence, 9 275. statutes, see State Laws, suit against, llth Amend. Const., 9 3. STATE COURTS, answer, differences in federal practice, 1 961. appeals from decisions of, time for, 9 1656. appellate federal review only obtainable by writ of error, 1 1602. bonds in, to be preserved on removal of cases, 9 216. concurrent jurisdiction with federal court, 99 90, 93. court records, evidence of, 9 274. exclusive jurisdiction of federal court, 9 91. injunction, interlocutory, not to issue in, against national banks, f 1117. staying of proceedings, 9 1108. jurisdiction, concurrent with district court, 9 W. criminal cases, 9 1205. provisional remedies of, preserved on removal of ease*, | 216. records, evidence of, 9 274. 1196 INDEX. STATE COURTS (Continued). removal of causes from, see Removal of Causes, ch. 9, and Removal from State Court by Writ of Error, ch. 74. time for reviewing decisions of, in United States Supreme Court, 1656. writ of error, only appellate method of federal review, 1602. writ of error, time for, 1656. STATE LAWS, amount in controversy, do not control, 180. appellate jurisdiction Supreme Court where Conetitution claimed to be con- travened, 1557. attachment laws, adoption of, 481. construction of, followed, 482. conformity of procedure at law to, see Conformity, ehs. 15, 19. criminal, where adopted in federal courts, 1203. depositions to perpetuate testimony under, when admissible in federal courts, 388. taking of, in mode prescribed by state laws, 389. evidence of, 274. garnishment laws, adoption of, 480. hearing application for injunction against enforcement, 1110. injunction against enforcement, 1109. penal, where adopted in the federal courts, 1204. perpetuation of testimony under, depositions when admissible in federal courts, 388. receivers manage properties according to, 1081. removal by writ of error decision in state court upholding, when claimed repugnant to federal authority, 1606. witnesses, competence of, determined by, I 330. STATE PRACTICE, adaption of, in Federal law actions, see Conformity, 7. differences from federal practice, 10. bill in equity, 691. complaint at law, 470. STATEMENT, agreed as to record on appeal, Eq. R. 77, 1671. evidence in record, Eq. R. 75, 1671. further and particular in pleading may be required, Eq. R. 20, ch. 41, 812, 967. STATEMENT ON APPEAL, court's approval of, Eq. R. 75, 1671. be filed in offic* of clerk, Eq. R. 75, 1671. STATEMENT OP THE CASE. 696. INDEX. 111)7 STATUTES, see also Federal Laws and State Laws. evidence of, 271, 273. removal by writ of error to state court of rfpoiMon against right, title, privilege, or immunity claimed under federal, i Itiu7. STATUTES OF LIMITATIONS, capital offenses, 231. civil rights, conspiracy against, 249. claims against United States, 243. copyrights, 5 S 241, 251. court of claims, 1433. crimes under internal revenue laws, 235. crimes under revenue and slave trade laws, S -34. criminal cases, 1207. customs laws, 239, 240. duties, 239, 240. employers' liability act, 248. enemy, trading with, $ 1721. forfeiture and damage suits for false claims against United States, S 242. forfeiture or penalty under copyright laws, { 241. general statement, 390. infringement of copyrights, 251. infringement of patent, 250. internal revenue, 234, 235. motion to dismiss, 885, 891. national bank stockholder's liability, 9 252. naturalization laws, offenses, $ 237. offenses capital, 231. not capital, 232. not capital unless fleeing from justice, 233. patents, Indians, 247. infringement, i 250. land, 245. railway, 246. wagon road, 246. penalties and forfeitures under customs rprenne laws, f 2S9. penalties and forfeitures under federal laws, 238. revenue laws, 235. eduction of female passengers on vessels, 238. settlements for customs duties, 5 240. slave trade, 234. stockholder's liability of stockholders, national banks, j 252. taxes, recovery of, 244. trading with tbe enemy act, 5 1721. 1198 INDEX. STAY, execution, pending motion for new trial, f 633. term, for one, state laws so allow, 634. STENOGRAPHER, appointment fees, Eq. B. 50, 1044. STIPULATION, reference to master, effect of, 1075. transfer of venue, 68. STOCKHOLDER bill in equity of, 740. same, old and new rules compared, f 742. same, purposes of the rule, 742. liability of stockholders, national banks, 252. statutes of limitations, 252. STOCKHOLDER'S BILL against corporation, Eq. B. 27, eh. 29. STBIKE OUT, motion to, eh. 46. SUBJECT MATTEB, partly within different districts, venue, 65. transfer of, to give jurisdiction on ground diverse" citizenship, 158. SUBORNATION OF PEBJUBY, indictment for, 1241. SUBPOENA, see also Subpoena in Equity. alias, Eq. B. 14, 794. another district, witnesses in, 343. answer compelled by, Eq. R. 7, 790. bill filed, clerk to issue, Eq. B. 12, 793. claims, cases pending in departments, witnesses, 354. clerk to issue when bill filed, and not before, Eq. R. 12, 661. contested patent cases', witnesses in, 353. criminal cases, 339, 340, 341, 342. of witnesses for indigent defendant, 345. defendant, on behalf of indigent, for witnesses, 345. defendant's summons, Eq. B. 13, 797. defendant to answer within time named in, Eq. B. 16, 811. department, claims in, witnesses, 354. government, witnesses for, 344. indigent, compulsory process for witnesses, 345. issue of, time for answer, Eq. R. 12, 810. INDEX. 1199 SUBPOENA (Continued). joint, against more than one defendant, Eq. R. 12, 791. manner of serving, Eq. B. 13, 797. memorandum at bottom thereof, Eq. R. 12, 9 793, 810. not executed, provision as to, Eq. R. ]4, 794. patent cases, contested, witnesses in, 353. process to compel appearance, Eq. R. 7, 790. separately, for each defendant when against more than one, Eq. R. 12, 791. service of, Eq. B. 13, 797. shall constitute proper process, etc., Eq. R. 7, 790. to contain names of parties, Eq. R. 12, 791. to issue when bill filed and not before, Eq. R. 12, 661. United States, on behalf of, for witnesses, 344. witnesses, see that heading, oh. 12. witnesses under act establishing bureau of war risk insurance. 8 361. when returnable, Eq. R. 12, 664. SUBPOENA DUCESTECUM TO REGISTER OF LAND OFFICE, 298. SUBPOENA IN EQUITY, see also Process in Equity and Service, ch. 34. alias, 794. form of, 791. return of, 799. issue of, 791. manner of service of, 797. mesne process, is the, 790. precipe for, 792. process in equity, is the, 790, 793. return of, 791. form of, 798, 799. time for, 664, 791. service of, by whom made, 524, 798. manner of, 525, 797. summons in equity, is the, 790. time for return, 664, 791. SUBSTITUTED SERVICE, | 66. attachment not basis for, in federal court, 483. publication of summons, 66, 526. SUBSTITUTION of proper parties by reviver, Eq. R. 45, 763* SUFFICIENCY, defensive pleading at law, 544. of defense, how tested, Eq. R. 33, ch. 46. 5 968. 1200 INDEX. SUITS, against a state when not permitted, llth Amend. Const., 3. papers filed, process issued, etc., to be noted on equity docket, Eq. R. 3, Appendix. rules governing (see Equity Rules and Index in Appendix) 58. to execute trusts of will heir as party, Eq. R. 41, 722. SUITS IN EQUITY, see Equity Suits. SUMMARIES, action at law, ch. 15. courts, 4. equity, eh. 25. federal courts, 4. jurisdiction federal courts, 4. law, eh. 15. proceedings in equity, eh. 25. SUMMONS, publication, 66, 526. SUMMONS IN EQUITY, see also Subpoena in Equity, ch. 34. form of, 791. return of, 798, 799. issue of, 791. manner of service of, 525, 797. precipe for subpoena, 792. return of, 798, 799. service of, by whom made, 524, 796. manner of, 797. subpoena is, 790. time for return, 664, 791. SUNDAYS, and holidays computation of time, Eq. R. 80, Appendix, clerk's office not open, E"q. R. 2, Appendix, computation of time, Eq.'R. 80, Appendix. SUPEHSKDJ5AS, bond, Rule 13 C. C. A. Appendix, bond, form of ; 8th Circuit, Appendix. Addenda Rule 45 C. C. A. Appendix, writ of error, 1666. SUPPLEMENT, Little and Brown's evidence, 272. INDEX. 1201 SUPPLEMENTAL BILL, Eq. B. 34, 5 770; Eq. B. 35, 777. SUPPLEMENTAL MATTER in amended pleading, Eq. E. 19, 5 760. SUPPLEMENTAL PLEADING, answer in equity, 966. . bill in equity, 770. notice of, Eq. B. 34, ch. 32. when may be filed, Eq. B. 34, ch. 32. SUPPLIES, lien on vessel for, 1740. SUPREME OOUBT, ch. 72. actions at law in, issues of fact, 1534. adjournments of, 1533. admission to practice before, 1532. aliens, suits between a state and, 1534. ambasssadors, suits against in, 1534. appeals to, from circuit courts of appeal, time for, 5 1655. appeals to, from district court, time for, 1652. appellate jurisdiction, ee Appellate Jurisdiction of Supreme Court, ch. 73. assistant marshal, 1530. associate justices, order of precedence, 1530. bond, of clerk, 1530. certification to, by circuit court of appeals, 9 1678. chief justice of, 9 1530. citizens, suits between a state and, 9 1534, clerk, bond of, 9 1530. liability for misfeasance of deputy, 9 1530. consul, a party in, 9 1534. copies of lost or destroyed records as evidence, 9 282. death of .party pending appeal to, 9 1692. decisions of, 9 1531. deputy clerks, 9 1530. domestics of ambassadors, suits involving, 9 1534. duties of marshal, 9 1530. duties of reporter, 9 1531. exclusive jurisdiction of, 9 1534. fact, issues of, in, 9 1534. if appeal lies to, rehearing not granted after term, Eq. R. 69, 9 1160. issues of fact in, 9 1534. jury for issues of fact in, 9 1534, judges, 9 1530. jurisdiction, exclusive, 9 1534. original, 9 1534. Manual 7 1202 INDEX. SUPREME COURT (Continued). law actions, issues of fact, in, 1534. mandamus and prohibition, 1534. marshal, 1530. messengers, 1530. misfeasance of deputy clerk, liability of clerk for, 1530. original jurisdiction, issues of fact, 1534. party, ambassador, as, in, 1534. citizens as, in, 1534. consul as, in, 1534. domestics of ambassadors to, 1534. public minister as, in, 1534. eervants of ambassadors as, in, 1534. etate as, 1534. vice-consul as, 1534. printing of record on appeal to, 1673. procedure, on appeal from Alaska district court, 1679. Hawaii Supreme Court, 1680. Philippine Islands Supreme Court, 1681. Porto Rico Supreme Court, 1680. prohibition and mandamus, 1534. public ministers, suits against, in, 1534. quorum, 1530. reduction and preparation of record on appeal to, 1670. reports, 1531. reporter, 1531. rules, Appendix, p. 817 et s0q. table of, Appendix, p. 1034. salary, assistant marshals, 1530. justices, 1530. marshal, 15 30; reporter, 1531. servants of ambassadors or other public ministers, 1534. special terms, 1533. state as a party in, 1534. table of rules, Appendix, p. 1034. terms, 1533. time for appeal to, from circuit court of appeals, 1655. to, from district court, 1652. transcript in, use of circuit court of appeals record as part of, 1673. trial of issues of fact in, 1434. INDEX. 1203 SUPREME COURT (Continued), vacancy in, 1530. Yice-consul as a party in, 1534. women may practice before, 1532. writ of error, see that heading, ch. 76, writ of mandamus, 1534. writ of prohibition, 1534. writs, power to issue, 1100. SURVIVAL OF LAW ACTION, 663. T. TABLE OF COSTS, promulgated by Supreme Court contained in Rule 27 C. C. A. Appendix. Rule 29 C. C. A. (4th Circuit) Appendix. TABLES OF STATUTES, rules, etc., Appendix, p. 1023 et seq. TAKING EXCEPTIONS, trial, lav actions, 596. TALESMEN, petit juries, 59L TARIFF LAWS, see also Revenue Laws and Customs, continuances of suits under, 566. TARIFFS, giving rebate, prosecution for failure to file, venue, $ 80. TAXABLE COSTS AND FEES, 401. TAXATION, costs, verification of bill, 403. TAXES, injunction does not issue against assessment, 1118. statutes of limitations for recovery of, 244. venue, 9 76. TEMPORARY RESTRAINING ORDER, see Restraining Order and Injunction, 1102, 1105, 1106, 1117. and preliminary injunctions, Eq. R. 73, 1103 et ieq. to be filed in office of clerk, Eq. R. 73, 9 1106. TENNESSEE, districts, terms and places of holding court, 107, Jud. Code, Appendix. 1204 INDEX. TEEM, altering, district court does not affect proceedings, 51. awarding process, commissions, orders, etc., by judge at chambers, etc.. in, Eq. E. 1, 822. bill of review for evidence discovered after, 1180. circuit court of appeals, Eule 3 C. C. A. Appendix,! 1472. Bule 36 C. C. A. (9th Circuit) Appendix, continuances beyond, 1032. court, 50. decree after, 1033. district attorney's, 33. district court, see Terms of District Court, eh. 5, Jud. Code, Appendix. altering does not affect proceedings, 51. special, 51. execution stay of, for one term when state law so allows, 634. marshal Dist. Ct., 29. orders, decrees, etc., of court to be entered in equity journal, Eq. E. 3, Appendix. rehearing not granted after, if appeal lies, Eq. E. 69, 1160. Supreme Court, 1533. TEEMS OF DISTEICT COUET, Alabama, 70, Jud. Code, Appendix. Arkansas, 71, Jud. Code, Appendix. Arizona, Act Oct. 3, 1913, ch. 17, following 71, Jud. Code, Appendix. California, 72, Jud. Code, Appendix. Colorado, 73, Jud. Code, Appendix. Connecticut, 74, Jud. Code, Appendix. Delaware, 75, Jud. Code, Appendix. Florida, 76, Jud. Code, Appendix. Georgia, 77, Jud. Code, Appendix. Idaho, 78, Jud. Code, Appendix. Illinois, 79, Jud. Code, Appendix. Indiana, 80, Jud. Code, Appendix. Iowa, 81, Jud. Code, Appendix. Kansas, 82, Jud. Code, Appendix. Kentucky, 83, Jud. Code, Appendix. Louisiana, 84, Jud. Code, Appendix. Maine, 85, Jud. Code, Appendix. Maryland, 86, Jud. Code, Appendix. Massachusetts, 87, Jud. Code, Appendix. Michigan, 88, Jud. Code, Appendix. Minnesota, 89, Jud. Code, Appendix. Mississippi, 90, Jud. Code, Appendix. Missouri, 91, Jud. Code, Appendix. INDEX. 1205 TERMS OF DISTRICT COURT (Continued). Montana, 92, Jud. Code, Appendix. Nebraska, 5 93, Jud. Code, Appendix. Nevada, 94, Jud. Code, Appendix. New Hampshire, 95, Jud. Code, Appendix. New Jersey, 96, Jud. Code, Appendix. New Mexico, 13, Act June 20, 1910, ch. 310 following 96, Jud. Code, Appendix. New York, 97, Jud. Code, Appendix. North Carolina, 98, Jud. Code, Appendix. North Dakota, 99, Jud. Code, Appendix. Ohio, 100, Jud. Code, Appendix. Oklahoma, 101, Jud. Code, Appendix. Oregon, 102, Jud. Code, Appendix. Pennsylvania, 103, Jud. Code, Appendix. Rhode Island, 104, Jud. Code. Appendix. South Carolina, 105, Jud. Code, Appendix. South Dakota, 106, Jud. Code, Appendix. Tennessee, 107, Jud. Code, Appendix. Texas, 108, Jud. Code, Appendix. Utah, 109, Jud. Code, Appendix. Vermont, 110, Jud. Code, Appendix. Virginia, 111, Jud. Code, Appendix. Washington, 112, Jud. Code, Appendix. West Virginia, 113, Jud. Code, Appendix. Wisconsin, 114, Jud. Code, Appendix. Wyoming, 115, Jud. Code, Appendix. TERRITORIAL CITIZENS, are not citizens so as to base jurisdiction on diverse citizenship, 9 142. TERRITORIAL COURTS, district court's jurisdiction of cases transferred from, S HI. Supreme Court's jurisdiction, 1561. writ of error to, 99 1679-1685. TERRITORIAL JURISDICTION, see Venne of Actions, ch. 4. limits of, 9 60. must be pled, 9 10. objection that defendant is not sued in his district, how made, f 86. territorial jurisdiction may be waived, 9 86. TERRITORIAL RECORDS, transfer of, 9 54. 1206 INDEX. TERRITORY, diverse citizenship, act a citizen, 143. extradition of fugitive from foreign under control of United States, 1303. Supreme Court jurisdiction where judgment rendered after admission, 1561. writ of error to, 5 1679-1685. TESTIMONY, see also Evidence, Witnesses. before commissioners, court of claims, 1434. competence of witness, see Competence. Congress, immunity of witness, 337. contempt of court for refusal of witness to give testimony before commis- sioner, examiner, etc., Eq. R. 52, 390. depositions, see that heading, ch. 13. to be used in foreign country, 394. enforcing of witnesses, 346, 352, 355, 367. expert, not to be substituted by bill of particulars, { 923. how stated in record on appeal, Eq. R. 75, 1671. immunity of witnesses, 335. interrogatories not to obtain, 948, 949. may be taken down by stenographer, Eq. R. 50, 1044. no further by deposition to be taken after ease goes on trial calendar, except, etc., Eq. R. 56, 677. notice of taking before master or examiner, Eq. R. 53, 391. of expert witnesses in patent and trademark cases, Eq. B. 48, 1041, 1045. of witnesses before examiner to be read to him, Eq. R. 51, 381, 382. perpetuation of, 388. to be signed by witness, Eq. R. 51, 382. usually to be taken in open court at trial, Eq. R. 46, 279, 1040, 1043. witnesses, see that heading, ch. 12. TESTING SUFFICIENCY OF DEFENSE, Eq. B. 33, ch. 46, 968. TEXAS, districts, terms and places of holding court, 108, Jud. Code, Appendix. THINGS AS EVIDENCE, under Alaska prohibition laws, 313. THIRD PARTY CLAIM, attachment, 493. TIME, answer, Eq. R. 12, 665, 810, 963. answer after motion to dismiss be denied, Eq. B. 29, 885, 900. answer in equity, ch. 44. INDEX. 1207 TIME (Continued). answer in equity (continued). after overruling motion to dismiss, 667. amended bill, 668. answer interrogatories, Eq. R. 58, 670, 940. appeal, ch. 75. circuit court of appeals, to Supreme Court, 1655. court of claims, 1560. court of customs appeals, 1455. district court to circuit court of appeals, 1653. from interlocutory orders, 1654. to Supreme Court, 1652. bill of review, 1181. calendar, see that heading. equity, 676. computation of Sundays and holidays, Eq. R. 80, Appendix, counterclaim in equity, 963. reply to, 674. service on other defendants, 672, 1010. default, equity, 811. law, 542. decree pro confesso, ch. 35, 810. defendant's depositions, Eq. K 47, ch. 48. defendant to plead, Eq. R. 12, 16, 665, 810, 963. defensive pleading, equity, ch. 36, 810. law, ch. 19, 541. depositions, see that heading, ch. 13, 1022. depositions, Eq. R. 47, ch. 48. extending, 1023. equity, 372, 663, 671, 677. law, 371. discovery, Eq. R. 58, 670, 940. equity, 662, 670. law, 571. enlargement of, for full compliance with decree, Eq. R. 8, | 473, 1112, 1140, 1143. exceptions at trial, 597. exceptions to master's report, Eq. R. 66, 1070. extending for depositions, 1023. ' j ': extradition, 1310. filing pleading, 52, see also Pleading, Time for. habeas corpus, return of writ, 1336. hearing, see that heading. motion to dismiss, 666. 1208 INDEX. TIME (Continued). holding court in the several districts, ch. 5, Jud. Code, Appendix. interrogatories, Eq. R. 58, 670, 940. interrogatories in equity, 662, 670. intervention, Eq. R. 37, 730. issuance of process in equity, 661, 791. issue in equity, 669, 675. issuing process, 52, see also Process, Time for. motion to dismiss, 665. hearing of, 666. motion to strike out defense in equity, ch. 46. motions, Eq. R. 1, 822. on expiration of, for depositions, case on trial calendar, Eq. R. 56, 677. plaintiff's depositions, E'q. R. 47, ch. 48. pleading, filing of, 52, see also Pleading, Time for. precipe for subpoena in equity, 661, 791. process in equity, 661, 791. issuing and returning, 52, see also Process, Time for. return of, 664, 691. reinstatement case on equity calendar, 679. reply in equity, 674, 1010. return of subpoena, Eq. R. 12, 664. returns, appeals, 1675. habeas corpus writ, 1336. process in equity, 52, 664, 691, 791. writ of error, 1675. service, counterclaim on other defendant's in equity, 672. process in equity, 664, 691, 791. setting for trial, 1030. subpoena, Eq. R. 12, 793. subpoena in equity, 661, 664, 691, 791. subpoena to issue when bill is filed and not before, Eq. R. 12, 661. taking exceptions, law actions, 597. writ of error, circuit court of appeals to Supreme Court, 1655. district court to circuit court of appeals, 1653. district court to Supreme Court, 1652. return of, 1675. Btate court to Supreme Court, 1656, 1657. TIME AND PLACES OF HOLDING DISTRICT COURTS, ch. 5, Jud. Code, Appendix. INDEX. ii:oy TITLE, clouded, venue, 66. removal by writ of error state court decision against, 5 1607. TORT-FEASORS, no separable controversy in, 194. TRADING WITH THE ENEMY, Canal Zone, 1720. jurisdiction district court, 1719. limitations, suit by alien enemy, 1721. Philippine Islands, 1720. suits relating to patents, trademarks, copyrights, etc., Si 1722, 1723. TRADEMARK CASES, cross-examination of witnesses, Eq. R. 48, | 1041, 1045. expert witnesses in, 1041, 1045. testimony of expert witnesses, Eq. R. 48, 1041, 1046. TRADEMARKS, copies of patent office records as evidence, 303. trading with the enemy act, suits under, 1722, 1723. TRANSCRIPT, appeal and error, f 1669a. cost of, to be advanced by party ordering, Eq. R. 50, 9 1044. of evidence before examiner not to include argument, Eq. R. 51, 9 3*2 on appeal, 1669 et seq. indicating portions of, Eq. B. 75, 9 1671. procedure after it reaches appellate court, 9 1685. supplemental, correction of, omissions by, Eq. B. 76, 9 1671* record, circuit court of appeals, Rule 26 C. C. A. (8th Circuit) Appendix. Addenda Rule 45 C. C. A. Appendix. TRANSFER, by stipulation, venue, 9 68. from equity to law side, 9 840. of action at law erroneously begun as suit in equity. Eq. B. 22, ch. 37. | 9. of subject matter to create diversity of citizenship, 9 156. of territory, how affects venue, 9 69. TRANSFERRED CASES FROM TERRITORIAL COURTS^ jurisdiction district court over, 9 HI. TRANSFERRING TO LAW SIDE, ch. 37. TRANSLATIONS, Rule 15 C. C. A. Appendix. 1210 INDEX. TRANSPORTATION, extradited person, to the United States, 1312. TRAVERSE, answer as, ch. 44; court of claims, 1434. TREASURY DEPARTMENT, books and proceedings in embezzlement suits, 293. evidence, 293. records in suits against delinquents, copies as evidence, 291. TREATY, appeal to Supreme Court where drawn in question, 1556. claims under, no jurisdiction, court of claims, 1432. extradition provisions continue during existence of, 1311. federal question arising under, 125. removal by writ of error decision in state court against validity, 1605. removal by writ of error to state court of decision against right, title, privilege, or immunity claimed, independence, 1607. removal case involving question under ; 126. TRIAL,, actions at law, see Law Actions, ch. 22* Supreme Court, 1534. admissibillty of evidence, equity, 1043. affidavits of experts in patent and trademark cases, 1041, 1045. amendment of verdict at law, 612. calendar, ch. 49, 1030. calendar on expiration of time for depositions, case goes on, Eq. R. 56, 677. challenges to jury, 593. charge to jury, 599. conclusion of, in new term, 5L, conduct of, at law, 598. constitutional jury, twelve men, 583. continuance after case on calendar, 1032. costs and fees, see that heading, ch. 14. criminal cases, see Criminal Procedure, ch. 59-62, 1369. demand to admit execution and genuineness of documents, 940. depositions, see tnat heading, eh. 13. equity, 1041. dismissal by plaintiff, 1130. diverse citizenship, want of, appearing on, i 160. drawing jury, 588. equity suits, see that heading, ch. 50. jury in, 862. evidence, see that heading, ch. 11. admissibility in equity, 1043. INDEX. 1211 TRIAL (Continued), exceptions, taking of, 596. time for taking, 597. excluding jurors, penalty under civil rights act, 586. execution, see that heading, exemptions of jury, 584. after term of service in a year, 587. civil rights acts, 585. expert witnesses patent and trademark ease*. 5 1-041, 1045. extradition, surrender of prisoner for a fair trial, f 1308. equity suits, 1040. form and effect of verdict, 611. impaneling jury, 589. infringement suits, 1046. instructions to jury, 599. interrogatories (equity), 940. issuance of venire, 590. issues of fact in Supreme Court, 1534. judge, trial at law, 459, 594. judgment at law, see that heading, ch. 24. jury in equity, 862. jury, see that heading. law actions, 458, 581, 593. right of accused to, 1365. law actions, see that heading, ch. 22. method of, al law, 581, 582. mode of proof, at law, 595. in equity, 1042. motion for new trial at law, 614. petit jury, see Jury, 581, 593. pleading, see that heading, proof in actions for infringement, 1046. mode of, in equity, 1042. at law, 595. removal for, of offenders against United States, 9 1260. return of venire of jury, 590. rulings, exceptions to, 596, 597. taking of, 596. time for taking, 9 597. setting for, ch. 49. special juries. 592* verdict, 610. statutes of limitations. SOP that heading, en. 10. 1212 INDEX. \ TRIAL (Continued). stenographer, equity suits, 1044. Supreme Court, issues of fact, 1534. taking exceptions, 59&. talesmen petit juries, 591. terms of court, see Terms. testimony to be taken in open court, Eq. E. 46, 270, 1040, 1043. time for taking exceptions, 597. venire, issuance and return, 590. venue, see that heading, eh. 4, verdict, effect of, 611. form of general, 611. witnesses, see that heading, ch. 12. experts in patent and trademark cases, 1045. TEIAL CALENDAB, in equity suits, 670. TEIALS, SEPAEATE, court may order separate trials of joint actions, Eq. E. 26, ch. 30. TBUSTEE AS PAETT, Eq. B. 37, 710. TBUSTEES, diverse citizenship of, 150. TRUSTS OF WILL, suit to execute, Eq. E. 41, 722. u. UNFAIE COMPETITION, counterclaim for, 961. UNITED STATES, see also Federal. attendance of witnesses, enforcing, 344, 354, 355, 357. no bond required of, on appeal, 1665. subpoena for, on behalf of, 342, 344. witnesses, recognizance of in criminal cases on behalf of, 342. UNLIQUIDATED DAMAGES, counterclaim for, 985. UTAH, districts, terms and .places of holding court, 109, Jud. Code, Appendix. INDEX. 1213 V. VACANCY, district attorney, 33. district judge's office, continuance, fi 54. judge continuances, 51. marshal's office, 29. Supreme Court, 1530. VACATION, awarding process, commissions, orders, rules, etc., by judge at clambers in, Eq. B. 1, 822. judgment law actions, 630. by granting new trial, 633. orders, 53. VALUE, averments in bill other than of, if not denied, deemed confessed, Eq. E. 30, 5 964. VENIRE, for jury, 590. VENUE, see Venue of Actions, below. VENUE OP ACTIONS, ch. 5. absent defendant, 66. civil suits, in general, 61. cloud on title, 66. condemnation, insurrectionary property, I 7S. Comptroller of Currency, injunction against, 78. copyright laws, 72. creation of new district, how affects, 69. crimes and offenses, 75. criminal prosecutions, 1207. defendant, absent, 66. defendant in different districts, 64. defendants, part of, not found, 74. diverse citizenship, cases of, 158. embargo, seizure for, 79. enforcement of lien upon creation or transfer of district or territory, | 70. federal question, cases involving, 127. forfeitures and penalties in, 76. forfeitures, seizures for, 79. form of plea, 86. fortifications, injury to, prosecutions, 83. immigration laws, prosecutions under, 85. infringement of patent, 71. 1214 INDEX. VENUE OP ACTIONS (Continued). injunctions against Comptroller of Currency, f 78. insurrection, seizure for, 79. insurrectionary property, condemnation of, 78. internal revenue and taxes, 76. Interstate Commerce Commission, suits affecting order of, 82. intoxicating liquors, prosecutions for violation of postal laws, 84. issue as to district of suit in diversity of citizenship, 86. issue as to federal question, form of plea, 132. jurisdiction of receiver over real .property outside of district, 67. lien not divested by creation of new district or transfer of territory, 70. liens, generally, 66. local suit, subject matter partly within several states, 65. local suit against defendant in different district, same state, 64. motion to dismiss for defect in, 86. new district created, effect of, 69. nonlocal suits in district of more than one division, 63. nonlocal suits in state of more than one district, 62. offenses and crimes, 75. part of defendants not found, 74. patent, infringement of, 71. penalties and forfeitures, 76. property, condemnation of insurrectionary, 78. prosecutions for failure to file rebate tariffs, 80. real property, receivers' jurisdiction over, outside districts in circuit, 67. rebate, prosecution for failure to file tariff giving, 80. receivers, jurisdiction over real property outside district in circuit, 67. revenue, internal, 76. seizure, embargo, forfeiture, insurrection, 79. sixteen hour law, prosecutions under, 81. stipulation, transfer by, 68. subject matter partly in different districts, 65. tariffs giving rebate, prosecution for failure to file, 80. taxes and internal revenue, 76. territory, transfer of, how affects, 69. . title clouded, 66. transfer by stipulation, $ 68. transfer of territory, how affects, 69. VERDICT, ch. 23. amendment of, 612. criminal case, for less offense than charged, 1380. against one or more several joint defendants, 1381. qualified, in cases of murder in first degree or rape, 1382. form and effect of general, 611. law action, 461. special verdict, f 610. INDEX. 1215 VERDICT AND JUDGMENT in criminal cases, ch. M. VERIFICATION, 574, see also Oaths, answer in equity, 960, 965. bill application for injunction, Eq. R. 73, 5 1103. bill in equity, 698, 700. bill of costs, ,402, 403. bill on application for injunction, Eq. R. 73, 1103. bill to be verified by oath if special lelief asked, Eq. R. 25, 700. clerk of court, before, Eq. R. 36, 700. complaint at law, 474. of pleadings, officers before whom taken, Eq. R. 36, 700. petition for rehearing to be verified by oath, etc., Eq. R. 69, 1160. stockholder's bill, 740. VERMONT, criminal cases, recognizance of witnesses, 341. districts, terms and places of holding court, 110, Jud. Code, Appendix. VICE-CONSUL, see also Consul. Supreme Court, party to suit in, 1534. VIRGINIA, districts, terms and places of holding court, 111, Jud. Code, Appendix. VIVA VOCE, master may examine persons before him, Eq. R. 65, 1063. VOUCHERS, production of, required by master, Eq. R. 62, 1063. w. WAGON ROAD, patents, statute of limitations, 246. WAR, condemnation land for military purposes, 9 1727. trading with the enemy act, see that heading, 1727. WARRANT, arrest of fugitive from foreign country, 1300. searches and seizures under custom law, 1705. - WAR RECORDS, copies as evidence in suits against delinquent*, | Wl. WAR RISK INSURANCE, see Bureau of War Rink Insurance, | 1724. WARNING ORDER, 66. 1216 INDEX. WASHINGTON, districts terms and places of holding court, 112, Jud. Code, Appendix. WEST INDIAN ISLANDS, appellate jurisdiction, 3d Cir., 1508. WEST VIRGINIA, districts, terms and places of holding court, 113, Jud. . Code, Appendix. * WHIPPING, abolished, 1406. WHITE SLAVE TRAFFIC, jurisdiction district court, 103. 4* WILL, execution of trusts of, heir as party, Eq. R. 41, 722. WISCONSIN, districts, terms and places of holding court, 114, Jud. Code, Appendix. WITNESSES, accused as against himself, 338. action at law, 460. affidavit of experts in patent and trademark cases, Eq. R. 48, 1041, 1045. anti-trust law, under, 335. anti-trust law, publicity in taking depositions, 396. attendance, claim cases in departments, 354. compelling under act establishing war risk insurance, 361. depositions de bene esse, 378. to be used in foreign country, 394. under commission, 385, 386. enforcing, 344, 346, 352, 355, 358, 378, 386, 394. for United Staters, 344. income tax law, 358. interstate commerce act, 357. patent cases, 352. attendance before commissioner, master or examiner, Eq. R. 52, 390. before examiners, etc., cross-examination of, etc., Eq. R. 49, 380. claim cases in departments, 354, 355. commerce laws, attendance enforcing under interstate commerce act, 357. immunity under, 335, 357. testimony enforcing under interstate commerce act, 357. . compelling attendance, see Attendance, above, compensation of, for attendance before commissioner, master, or examiner, Eq. R. 52, 390. competence, anti-trust laws immunity, 335. Alaska prohibition laws, 331. commerce laws, immunity, 335. INDEX. 1217 WITNESSES (Continued). competence, anti-trust laws immunity (continued). Congress, immunity, 337. criminal cases, immunity, 336. defendant, 338. customs, revenue laws, 333. defendant in criminal cases, 338. determined generally by state laws, 330. immunity of witnesses, 335, 336, 337. | officers and informers not disqualified in suits for finea, penalties, or forfeitures, 334. perjury does not disqualify, 332. revenue law, not disqualified, 333. state laws determine, 330. testimony, see that heading, compulsory attendance, 344, 346, 352, 355, 357, 358, 378, 386, 391 process criminal cases, 339. for United States district attorney, 5 342. Vermont, 340. testimony, 346, 352, 355, 357. Congress, immunity of witnesses, 337. contempt, court's power to punish for, 347. contempt in, refusing to appear before commissioner, master or examiner. Eq. E. 52, 390. costs, on depositions to be advanced by party calling, Eq. B. 50, 1044. court of claims, 1435. court officer not entitled to fees as, 419. criminal cases, compulsory process for, 339, 340, 341, 342. defendant as a witness, 338. immunity, 335, 336. of indigent defendant, 345. recognizance of, 340, 341, 342. cross-examination before examiner, Eq. B. 54, 5 372. cross-examination in patent and trademark case, Eq. R. 48. 1041, 1045. cross-examination on deposition, Eq. B. 54, 372. cross-examination where no notice of deposition given, Eq. R. 54, 372. customs laws, not disqualified by claiming compensation under, 333. defendant in criminal proceedings, 338. subpoena on behalf of indigent, 345. department, claim cases in, subpoena, 354. depositions of, may be taken when, Eq. B, 47. ch. 48, 1040. depositions of, after case on trial calendar, 1030, 1031. district, subpoena for witnesses in another, 343. district attorney, recognizance, 342. enforcing attendance, see Attendance, above. Manual 77 1218 INDEX. WITNESSES (Continued). expense of taking depositions of, to be advanced by party calling, Eq. B. 50, 1044. experts in patent and trademark cases, 1041, 1045. extradition, indigent prisoners, 1306. fees of, 418. claim cases in departments, 356. criminal examination, United States liable for only four witnesses, 423. depositions in District of Columbia, 420. letters rogatory from foreign country, 421. mileage, 348, 349. double prohibited, 350. patent cases, 353. prize cases, how paid, 424. seamen sent home to give testimony in criminal pases, 422. fines, suits for, officers and informers not disqualified as, 334. forfeitures, suits for, officers and informers not disqualified as, 334. government, recognizance of, 342. subpoena of witnesses for, 344. immunity of, an ti- trust laws, 335. commerce laws, 335. Congress before, 337. criminal eases, 335, 336. letters rogatory need not incriminate 1 , 395. income tax law, compulsory attendance, 358. indictment for capital crimes, accused entitled to compel, 1364. incompetent, see Competence and Immunity, incrimination, see Immunity. indigent defendant, subpoena on behalf of, 345. informers not disqualified in suits for fines, penalties, or forfeitures, 334. interrogatories, written, not subject to, 951. interstate commerce act, enforcing attendance and testimony of, 357. immunity of witnesses under, 335. letters rogatory, 393, 395, 421. list of, to be given to person indicted for treason or capital offense, 1363. may be examined on oath by master, Eq. E. 62, 1063. may be examined orally before court, or cross-examined before examiner. etc., when no notice of deposition given, Eq. E. 54, 372. mileage, amount, 348, 349, 350. double prohibited, 350. officers not disqualified in suits for fines, penalties or forfeitures, 334. oaths, 359. patent cases, enforcing attendance and testimony of, 352. fees of, in, 353. subpoena for, in contested cases, 351. INDEX. WITNESSES (Continued). penalties in suits for officers and informers not disqualified as, 334 perjury not a disqualification, 332. process for, see Subpoena, below, recognizance in criminal cases, 340. in Vermont, 341. for United States, 342. refusing to appear before commissioner, master or examiner, Eq. R. 52, 5390. refusing to sign testimony, Eq. B. 50, 1044. revenue laws, not disqualified by claiming compensation under, 333, state laws determine generally competence, 330. lubpoena, another district, 343. claim cases in departments, 354. contested patent cases, 353. criminal cases, 339, 340, 341, 342, 345. government, 344. in behalf of indigent defendant, 345. patent cases, 353. United States, 344. wearing, 359. testimony, enforcing, 346, 352, 355, 357. claim cases before departments, 355. competence, see that heading, above. Congress, immunity, 337. immunity, see that heading above. interstate commerce act, 357. patent cases, 352. testimony of, by deposition, after case goes on trial calendar, Eq. R. 56, 677. expert in patent and trademark cases, Eq. R. 48, 1041, 1045. how stated in record, on appeal, Eq. R. 75, 1671. signature to testimony before examiner, Eq. R. 51, 381. to be read to, Eq. R. 51, 9 381. testimony usually to be taken in open court, Eq. R. 46,55270, 1040, 1043. United States, enforcing attendance of, 344, 354, 355, 357. recognizance in criminal cases, 342. Vermont, recognizance in criminal cases, 8 341. WOMEN, admission to practice in Supreme Court, fi 1532. citizenship of, 148. WRIT, see various kinds of, below. C. C. A., 1473. copy of, jailer's authority, 5 1269. 1220 INDEX. WBIT (Continued). court's power to issue, 1100 not required to bring a person in custody into court, 1272. one writ where several indictments against same person, 1271. removal of prisoner from one district to another, 1270. WBITING, call for admission of execution or genuineness of, Eq. E. 58, 85670, 940. WETTINGS, productions of required by master, E'q. R. 62, 1063. WEIT NE EXEAT, 1113. WBIT OF ASSISTANCE, for delivery of possession, Eq. E. 9, 1143. when to issue, Eq. B. 7, 1112. WEIT OF ATTACHMENT, see also attachment, ch. 17. amendment of, 489. WEIT OF CEBTIOBABI, see also Certiorari, applications under 240, Jud. Code, instructions, Appendix, p. 813. WEIT OF EBEOE, ch. 75. see Eemoval by Writ of EVror to State Court of Last "Resort, 1601. Alaska district court to circuit court of appeals, 1505, 1506. Alaska district court to Supreme Court, 1561. allowance of, 1658. amendment, 1659. appearance bond form, Addenda Eule 45 C. C. A. Appendix. appellate method of review of state court decisions, 1602. assignment of errors, 1661. bail, circuit court of appeals, Eule 35 C. C. A. (2d Circuit) Appendix. bankruptcy, circuit court of appeals, Eule 45 C. C. A. (8th Circuit) Appendix, bond, 1661, 1664. certification, question of law, 1677. China, United States court to circuit court of appeals, 1504. circuit court of appeals, Eule 14 C. C. A. Appendix. district court, time, 1653. procedure, 839, 1657, 1676. Supreme Court to, 1559, 1655. citation, 1663. costs, 1687. INDEX. 1221 WRIT OF ERROR (Continued). court of claims to Supreme Court, 1560. criminal cases circuit court of appeals, Eule 35 C. C. A. Appendix. 34 C. C. A. (4th Circuit) Appendix. 37 C. C. A. (6th Circuit) Appendix, damages, 1687. district court, 1501. circuit court of appeals to, 1653. fact, no reversal for error in, 1686. Supreme Court to, time for, 1652. District of Columbia court of appeals to Supreme Court, 5 1561 filing record, 1670. form of, in 8th Circuit, Addenda to Rule 45 C. C. A. (8th Circuit) Appendix. Hawaii to Supreme Court, 1561. instructions as to suing out for circuit court of appeals, Addenda Rule 45 C. C. A. Appendix, issuance to Supreme Court, 1660. parties, 1651. Philippine Islands to Supreme Court, 1551. Porto Rico to Supreme Court, 1561. preparation of record, 1670. proceedings in forma pauperis, 1668. procedure, appellate court after transcript filed, 1685. district court to circuit court of appeals, 1653. record, 1670. removal from state court by writ of error, $ 1609. summary, 1676. to territories, 1679-1685. reduction of record, 1670. return, circuit court of appeals, Rule 14 C. C. A. Appendix, reversal not given for error in fact, 1686. state court decisions reviewed by, in federal appellate courts, eh. 74, to Supreme Court, time for, 1656. state court, time for, 1656. summary of procedure, 9 1676. supcrsedeas, 1666. Supreme Court, certification of questions of law, 1677. 1684. circuit court of appeals, time for, 1655. district court, time for, 1652. procedure, 1676. territories, 9 1679-1685. 1222 INDEX. time, return of writ of error, 1670. writ of error circuit court of appeals to Supreme Court,? 1655. writ of error district court to circuit court of appeals, 1653. writ of error district court to Supreme Court, 1652. writ of error to state court, 1656. WRIT OF EXECUTION to enforce decree for payment of money, Eq. R. 8, 473, 1112, 1140, 1143. WRIT OF HABEAS CORPUS, see also Habeas Corpus, ch. 64. form of return, 1337. return of, 1336, 1340. time of return, 1336. WRIT OF MANDAMUS, Supreme Court, 1535. WRIT OF PROHIBITION, Supreme Court, 1534. WRIT OF SEQUESTRATION, Eq. E. 7, 8, 1112. - WRIT SCIRE FACIAS, 1114. WRITTEN INSTRUMENTS, see also Books, Papers, Documents, Production, etc. depositions under commission, production of, 387. WYOMING, districts, terms and places of holding court, 115, Jud. Code, Appendix. Y. YELLOWSTONE NATIONAL PARK, appellate jurisdiction district court, 105. LAW LIBRARY tltttVEBBITY OF CALIFORNIA LOS ANGELES 000699710 o